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Supreme Court May Decide Another Gay Wedding Cake Case

Posted on: October 26th, 2018 by Art Leonard No Comments

Melissa and Aaron Klein, proprietors of the now-defunct “Sweetcakes by Melissa” custom-cake business in Gresham, Oregon, filed a petition for certiorari on October 19, asking the U.S. Supreme Court to strike down the $135,000 penalty imposed by Oregon authorities for their refusal to make a wedding cake for Rachel Cryer and Laurel Bowman in January 2013. Klein v. Oregon Bureau of Labor and Industries, No. ____ , seeking review of Klein v. Oregon Bureau of Labor and Industries, 410 P.3d 1051, 289 Or. App. 507 (2017), rev. denied by Oregon Supreme Court, June 21, 2018.  The Kleins claim in their Petition that the Oregon ruling violates their constitutional rights of free exercise of religion and freedom of speech.

The Kleins also claim that they did not discriminate against the lesbian couple because of their sexual orientation, contrary to the finding of the Commission that was affirmed by the state appeals court. And, perhaps most consequentially, they asked the Supreme Court to consider whether to overrule Employment Division v. Smith, 494 U.S. 872, which holds that the Free Exercise Clause does not exempt people with religious objections from complying with state laws of general application that do not specifically target religious practices.

The Kleins ask the Court to revisit a controversy it confronted last year in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).  Both Oregon and Colorado forbid businesses in the state from discriminating against customers because of their sexual orientation.  In Masterpiece, baker Jack Phillips refused, initially on religious grounds, to make a wedding cake for a gay male couple, and Colorado officials found that he had violated the law, rejecting his First Amendment defense.  In his appeal of the Colorado Court of Appeals’ ruling affirming the Commission, Phillips asserted protection under both the Free Exercise and Free Speech Clauses of the First Amendment, claiming that the government may not compel a “cake artist” to express a message contrary to his religious beliefs, both as a matter of freedom not to speak and protection for religious freedom.

The Court did not rule directly on these questions in disposing of Phillips’ appeal, instead deciding that comments by some of the Colorado Civil Rights Commissioners, and the Commission’s rejection of some other discrimination claims filed by a provocateur who charged bakers with discriminating against him by refusing to make explicitly anti-gay cakes, showed that the state had not afforded an appropriately “neutral forum” to Phillips for consideration of his defense. On that basis, the Court reversed the state court and commission rulings and dismissed the case against Phillips.  However, in his opinion for the Court, Justice Anthony Kennedy reaffirmed that people and businesses do not enjoy a general free exercise right to refuse to comply with state laws of general application that do not specifically target religion.  Kennedy’s opinion avoided dealing with Phillips’ argument that as a “cake artist” he also had a valid free speech claim.  Two justices dissented, while others concurred in the result.

Justice Kennedy cited Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), to support the Free Exercise point.  In that case, a restaurant owner cited his religious beliefs to refuse to comply with Title II of the Civil Rights Act of 1964, which forbids businesses affecting commerce from refusing to serve customers because of their race.  The Supreme Court affirmed the 4th Circuit, which had reversed the district court’s refusal to enjoin the restaurant’s discriminatory policy.  Kennedy could have just as well cited Employment Division v. Smith, which the Colorado Commission’s Administrative Law Judge had cited in his Masterpiece ruling, but Piggie Park may have seemed more apposite, as it involved enforcement of a general anti-discrimination law over religious objections. Smith, by contrast, involved a Native American man who had consumed peyote in a religious ritual and subsequently flunked his employer’s drug test, suffering discharge and denial of unemployment benefits.  The Supreme Court rejected Smith’s religious freedom challenge to his disqualification for benefits, finding that the incidental burden this posed on his free exercise of religion did not excuse him from complying with his employer’s lawful policy against employee drug use or require that an exception be made to the state’s unemployment insurance law, which denies benefits to employees discharged “for cause.” In a concurring opinion in Masterpiece Cakeshop, Justice Neil Gorsuch (joined by Justice Clarence Thomas) described the Smith ruling as “controversial,” implying that it deserved reconsideration.

The Kleins have followed up on Gorsuch’s signal by asking the Court to reconsider Smith or, alternatively, to “reaffirm” some comments Justice Antonin Scalia made in his opinion for the 5-4 Court majority in Smith, suggesting that when somebody raises a free exercise of religion claim in a case that also implicates “other fundamental rights,” such as freedom of speech, the Court should apply “strict scrutiny” to the challenged state action in order to vindicate the other fundamental right.  The Klein’s Petition points out that lower federal courts are divided about whether to follow Scalia’s suggestion for handling so-called “hybrid rights” cases – a suggestion the Oregon Court of Appeals expressly rejected in the Kleins’ case — and urges the Court to resolve a split of lower court authority by taking this case.

The Klein’s Petition also argues that they did not discriminate against Cryer and Bowman because of their sexual orientation; they would refuse to make a cake for a same-sex wedding regardless of the sexual orientation of the customer who sought this service. They related that just a few years earlier, they had produced a wedding cake ordered by this very lesbian couple, to celebrate the marriage of Rachel’s mother to a man, and that it was because Rachel and Laurel “liked the Kleins’ work so much that they wanted to commission a custom cake from Sweetcakes for their own wedding.”  The Petition also notes that the women quickly found another baker to make their wedding cake, and that a celebrity chef even gave them a second custom-designed cake for free.

On the other hand, it was reported that when the Kleins posted about the discrimination claim on their Facebook.com page, showing the image of the actual discrimination charge with contact information for the lesbian couple, the women received nasty messages, including death threats, which contributed to the Oregon Bureau’s decision to assess substantial damages for emotional distress.

The Kleins devote a large part of their Petition to arguing that they are “cake artists” whose creations are expressive works, entitling them to the same vigorous constitutional free speech protection normally provided to artists in less digestible media. As such, they claim the Oregon court erred in failing to apply strict scrutiny to the Bureau’s decision against them, as the Supreme Court has repeatedly held that the First Amendment protects an individual’s refusal to speak a message with which they disagree, the prime example being the Court’s unanimous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in which, overruling a 4-3 decision by the Massachusetts Supreme Judicial Court, the Court held that parade organizers had a right to exclude a group whose message they did not desire to include in their parade, which the Court deemed to be a “quintessential expressive association.”  Whether the Court is willing to deem baking a wedding cake the free speech equivalent of staging a parade with thousands of people on a state holiday is an interesting question.

If the Court grants the Petition, the most consequential issue could be the Kleins’ challenge to Employment Division v. Smith, in which the Court cast aside decades of First Amendment precedent to hold that general laws that place a heavy burden on somebody’s free exercise of religion must generally be obeyed nonetheless.  Under prior rulings, the government had the heavy burden of meeting the “compelling government interest” test in order to justify applying a general law that incidentally but substantially burdened somebody’s free exercise of religion.

Justice Gorsuch was correct in calling Smith a “controversial” decision. Congress was so incensed by Justice Scalia’s opinion (which drew dissents from liberal members of the Court) that a bipartisan coalition soon passed the first version of the Religious Freedom Restoration Act (RFRA), introduced by Chuck Schumer (House) and Ted Kennedy (Senate) and eagerly signed into law by Bill Clinton in 1993.  RFRA provided that any law imposing a substantial burden on somebody’s free exercise of religion could be challenged using the strict scrutiny standard.  The Supreme Court subsequently ruled that Congress did not have authority to overrule the Court’s constitutional ruling, but the Court later upheld a revised version of RFRA that applied only to federal laws that burden religious free exercise, holding that Congress could create a legislative exception to federal laws when they incidentally impose a substantial burden on religious exercise.  Federal RFRA provided the example for more than twenty states to pass their own versions, similarly restricting the application of their state and local laws.  State court decisions in several other states have interpreted their state constitutional religious freedom provisions to the same effect, rejecting the Supreme Court’s narrower interpretation of Free Exercise in Smith.

If the Supreme Court were to overrule Smith and restore the previous precedents, RFRA and its state counterparts would be rendered superfluous, as the First Amendment would once more restrict states from enforcing general laws that substantially burden a person or business’s free exercise of religion in the absence of a compelling state interest.  The impact on LGBT rights could be enormous, prompting new claims that application of anti-discrimination laws to people and businesses with religious objections to LGBT people violates the businesses’ constitutional rights – one of the claims the Kleins are pursuing in this case.

Oregon state officials have thirty days to file a response to the Petition, and Petitioners can file a Reply to the Response, which means that the Supreme Court’s file in the case will not be completed for consideration by the Court until at least early December and maybe longer if the Oregon Attorney General’s Office requests an extension of time to respond. But if the petition is granted in December, that would leave plenty of time for the Court to hear arguments and render a decision during its current term, which runs through the end of June.

Sex Stereotype Theory Cannot Overcome Adverse 6th Circuit Precedent in Sexual Orientation Claim

Posted on: June 16th, 2018 by Art Leonard No Comments

Characterizing a lesbian plaintiff’s sex discrimination claim under Title VII and the Kentucky Civil Rights Act as a sexual orientation discrimination claim, Chief U.S. District Judge Joseph H. McKinley, Jr., granted an employer’s motion for partial dismissal, finding that 6th Circuit precedent from a decade ago expressly rejected using a sex stereotype theory to find sexual orientation discrimination actionable under Title VII or the Kentucky statute. Lindsey v. Management & Training Corporation, 2018 WL 2943454, 2018 U.S. Dist. LEXIS 98001 (W.D. Ky., June 12, 2018).

Terry Lindsey alleged that she was terminated because she is an African-American, noting that she and other African-American employees in management positions were either removed or encouraged to resign from management prior to her termination. She also alleged that she was terminated because she was seen by another employee with her female “significant other,” who is a former employee of the company.  Lindsey pointed to inconsistent enforcement by the company of its rule against co-workers forming romantic relationships, pointing out that the company “never took disciplinary action against employees who were engaged in opposite-sex relationships with other employees.  The company moved to dismiss the sex discrimination claim as well as a retaliation claim which had not been administratively exhausted prior to filing suit.

The company’s motion asserted that Lindsey had not pled a cognizable sex discrimination claim, as “the characteristic upon which she claims she was discriminated, her sexual orientation, is not a protected classification” under either Title VII or the Kentucky law, wrote Judge McKinley. One might argue that this mischaracterizes Lindsey’s claim. She is not alleged that she was discriminated because she is a lesbian, but rather she is being discriminated against because of the sex of the person she is dating, observing that the company treats same-sex and different sex relationships differently, thus having a policy based on sex.  But the court, without any discussion of the matter, accepts the company’s characterization of the claim, and comments, “The Sixth Circuit has categorically held that ‘sexual orientation is not a prohibited basis for discriminatory acts under Title VII,” citing Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006).  “Further,” he wrote, “the Sixth Circuit, in applying Title VII precedent to the KCRA, has held that the KCRA also does not protect individuals from discrimination based on sexual orientation,” citing Pedreira v. Kentucky Baptist Homes for Children, 579 F. 3d 722 (6th Cir. 2009).  “Lindsey’s complaint alleges that M & T took adverse action against her because of her same-sex relationship.  Because of the Sixth Circuit’s opinion in Vickers, this claim is foreclosed both under Title VII and the KCRA.”

But the judge acknowledges that there is some logic to viewing this as a sex stereotyping case, writing, “Lindsey’s arguments to the contrary, while foreclosed by Vickers, are not without some merit.  Title VII’s protection against sex discrimination allows for claims ‘based on gender nonconformance that is expressed outside of work,’” citing EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3 560 (6th Cir. 2018), and some earlier 6th Circuit cases allowing sex discrimination claims to be brought by transgender plaintiffs using a sex stereotype theory.  “If the court were simply required to apply this framework,” the judge continued, “Lindsey’s claim would likely survive.  Lindsey’s behavior that was at the root of the alleged discrimination (dating another woman) fails to conform to the stereotypical female behavior of dating men.  The Vickers court seemed to acknowledge that such claims based on sexual orientation discrimination fit within the framework for analyzing sex discrimination claims, stating that, ‘in all likelihood, any discrimination based on sexual orientation would be actionable under a sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.’  But the Vickers court removed claims based on sexual orientation from ever being put through this analytical framework by declaring that ‘a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII,’” in this instance quoting the 2nd Circuit’s opinion in Dawson v. Bumble & Bumble, 398 F.3d 211 (2nd Cir. 2005).  In a footnote, Judge McKinley notes that Dawson “was recently overruled by Zarda v. Altitude Express, Inc., 883 F.ed 100 (2nd Cir. 2018).

Nonetheless, despite these developments since Vickers, Judge McKinley states that “because Vickers remains good law [citing EEOC v. Harris Funeral Homes], the court must dismiss Lindsey’s Title VII and KCRA claims for sex discrimination.”

Lindsey also tried to argue in opposition to the motion to dismiss that M&T is a federal contractor and thus bound not to discriminate because of sexual orientation as part of its contract with the federal government under Obama Administration Executive Order 13672, which has not been expressly rescinded by Trump. Judge McKinley notes that the complaint filed in this case “makes no mention of this Executive Order as a legal theory under which she is seeking relief,” nor could it, really, because the E.O. is only enforceable administratively within the department with which the employer has its contract.  There is no general right for an employee to sue an employer in federal court to enforce a provision in a contract between the employer and the government.  And, of course, raising new legal theories that were not mentioned in a complaint in opposition to a dismissal motion just does not work as a matter of civil procedure.

However, Judge McKinley may not have read Harris Funeral Homes closely enough.  He cited it for the proposition that Vickers remains “good law” in the 6th Circuit, but the paragraphs in Harris dealing with the Vickers precedent may lead one to doubt whether Vickers remains on such solid ground as circuit precedent as Judge McKinley believes.  In Harris, admittedly a gender identity rather than a sexual orientation case, the court cast doubt on the viability of the Vickers panel’s narrow approach to the sex stereotyping theory, citing to the earlier circuit gender identity cases of Smith v. City of Salem and Barnes v. City of Cincinnati, which had taken a broader view of sex stereotyping theory than the Vickers panel had embraced.  (The Harris panel criticized Vickers for engrafting an additional interpretive test to the theory that went beyond what the Supreme Court had done in the seminal sex stereotyping case of Price Waterhouse.) Furthermore, of course, the 2nd Circuit case on which Vickers relied, Dawson, has been overruled in Zarda, as Judge McKinley noted.  Which is a long way around to saying that if he were willing to stick his neck out, there was sufficient diversity of approach in 6th Circuit sex discrimination precedents for McKinley, had he been so inclined, to decline to dismiss the sex discrimination claim.

It is unfortunate that Lindsey is apparently litigating pro se, because this seems like the kind of case that might be used to persuade the 6th Circuit to abandon Vickers and, in light of the broader view of sex stereotyping and flexibility in interpreting “sex” in Title VII exhibited in Harris, to adopt an interpretation that could encompass Lindsey’s claim.

 

Supreme Court Issues Historic Marriage Equality Ruling

Posted on: June 26th, 2015 by Art Leonard No Comments

The Supreme Court ruled today that “same-sex couples may exercise the right to marry” and that “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”  Writing for the Court, Justice Anthony M. Kennedy, Jr., grounded these marital rights in the 14th Amendment’s guarantee that no State may deprive any person of “liberty” without due process of law or deny to any person the “equal protection of the laws.”  He saw the claimed rights in this case as logical extensions of the rights recognized by the Court through his opinions in United States v. Windsor (2013) and Lawrence v. Texas (2003).   Obergefell v. Hodges, No. 14-556, 2015 WL 2473451, 2015 U.S. LEXIS 4250 (June 26, 2015).  By fitting coincidence, the opinion was issued on the second anniversary of Windsor and the twelfth anniversary of Lawrence.

Kennedy was appointed to the Court by President Ronald Reagan in 1987.  Kennedy’s opinion was joined by the four justices appointed by Democratic presidents: Ruth Bader Ginsburg and Stephen Breyer (appointed by Bill Clinton) and Sonia Sotomayor and Elena Kagan (appointed by Barack Obama).  Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito all wrote dissenting opinions for themselves, and each of them also signed one or more of the other dissenting opinions.

The Court had granted petitions filed by the plaintiffs in cases emanating from the states of Ohio, Tennessee, Michigan and Kentucky.  In each of those states, federal district courts had ruled during 2014 either that state laws refusing to recognize same-sex marriages contracted in other states violated equal protection rights or that the refusals of the states to allow same-sex couples to marry violated due process and/or equal protection rights.  Those rulings were consolidated for appeal before the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, which reversed the trial courts in an opinion by Circuit Judge Jeffrey Sutton.  Sutton held that the U.S. Supreme Court’s ruling in 1972 that a challenge to the Minnesota ban on same-sex marriage did not present a “substantial federal question” remained binding as precedent on lower federal courts, but went on to reject the plaintiffs’ constitutional arguments, opining that the question whether same-sex couples could marry or have their marriages recognized was one to be resolved through the democratic process, not through litigation.  In granting the plaintiffs’ petition to review that ruling, the Court ordered argument on two questions:  whether same-sex couples have a right to marry, and whether states are obligated to recognize same-sex marriages.  A majority of the Court has now answered both of those questions in the affirmative.

This outcome was widely predicted because of the Court’s behavior since October 2014, when it declined to review pro-marriage equality decisions by the 4th, 7th and 10th Circuits, thus lifting stays and allowing marriage equality rulings to go into effect in Virginia, Indiana, Wisconsin, Oklahoma and Utah, and eventually in all the other states in those circuits.  When the 9th Circuit ruled for marriage equality, the Supreme Court rebuffed every request by state officials to delay marriage equality rulings going into effect in that circuit, and subsequently refused to stay marriage equality rulings from Florida and Alabama, even though the 11th Circuit had not yet ruled on the states’ appeals.  The denial of the Alabama stay, weeks after the Court had granted review of the 6th  Circuit’s decision, decisively confirmed that there was a majority for marriage equality on the Supreme Court, to the consternation of Justice Thomas expressed in his dissent from the denial of Alabama’s staff petition.

The outcome being highly predictable, the main questions arousing speculation were which constitutional theories the Court would use to strike down the bans, and whether an additional member of the Court — most likely Chief Justice Roberts — would join the majority.  Roberts stayed put with his fellow conservative brethren.  Kennedy’s opinion took a route that could have been predicted based on his opinions in Windsor and Lawrence.  Kennedy’s preferred approach in gay rights cases (leaving aside his first such opinion, in Romer v. Evans, which is really sui generis) is to rely heavily on his broad conception of liberty protected by the Due Process Clause.

Kennedy began with a quick review of the situations of some of the plaintiffs, showing the deprivations they faced by not being allowed to marry or have their marriages recognized, and then presented a historical overview of the changing nature of marriage.  He wrote that “changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.  This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians.”  After reviewing the growing recognition of gay rights by the courts, and referring to an amicus brief filed by the American Psychological Association, he wrote, “Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”  This could be a key statement for a holding that sexual orientation is a “suspect classification” for equal protection purposes, but Kennedy never followed up along that line.

Instead, he turned to a due process analysis, and premised his conclusion on “four principles and traditions” which he said “demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”  The first “is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”  The second is “that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”  The third is “that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”  Finally, he wrote, “This Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”

As to each of these four principles, Kennedy penned eloquent explanations that play into the themes he previously developed in his opinions in Windsor and Lawrence.  For example, he wrote, “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.  This is true for all persons, whatever their sexual orientation.”  Speaking about marriage’s “support” for the “two-person union,” he wrote, “Marriage responds to the universal fear that a lonely person might call out only to find no one there.  It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”  After observing that “hundreds of thousands of children are presently being raised” by same-sex couples, he wrote: “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.  They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.  The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”

In explaining why the right to marriage is a fundamental right, Kennedy observed that “States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.  There is no difference between same- and opposite-sex couples with respect to this principle.”  As he had observed in 2003 when he wrote for the Court striking down the Texas sodomy law, he reiterated in this case.  “The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.  With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”   Several times in the course of this part of his opinion, Kennedy referred to the “dignity” of same-sex couples being denied or disparaged by denying them the right to marry.

Turning to the Equal Protection Clause as an alternative source of the marriage right, Kennedy avoided any explicit pronouncement about whether sexual orientation discrimination claims should be subject to heightened scrutiny.  Actually, there are two different strands of equal protection theory: the classification strand and the rights strand.  Under the former, the Court asks whether the challenged law creates a classification that is “suspect” and thus subject to heightened or strict scrutiny.  Under the latter, the Court asks whether the challenged law discriminates concerning a fundamental right, and thus will be struck down unless the government proves a compelling justification.  Kennedy focused on the second strand.

Referring back to the Court’s earlier marriage cases, he wrote, “The equal protection analysis depended in central part on the Court’s holding that the law burdened a right of ‘fundamental importance.’ It was the essential nature of the marriage right, discussed at length in Zablocki v. Redhail, that made apparent the law’s incompatibility with requirements of equality.”  He emphasized the interconnectedness of the liberty/due process and equal protection theories, referring to his 2003 opinion in the Texas sodomy case, Lawrence v. Texas.  “Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State ‘cannot demean their existence or control their destiny by making their private sexual conduct a crime.’  This dynamic also applies to same-sex marriage.  It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.  Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.  Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm.  The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.  And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.”

Thus, in the ongoing dispute over whether the plaintiffs were claiming a new constitutional right of “same-sex marriage” or access to an existing fundamental right to marry, the Court in this case adopts the broader view.

Kennedy rejected the states’ argument that this decision was being made without sufficient “democratic discourse,” pointing out that same-sex marriage has been a topic of debate for decades, and asserting that “there has been far more deliberation than this argument acknowledges,” referencing referenda, legislative debates, “countless studies, papers, books, and popular and scholarly writings.”  Indeed, he pointed out, “more than 100 amici” had filed briefs with the Court presenting a wide range of perspectives on all sides of the issues.  And, he pointed out, “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.”  Having found that the marriage bans abridge fundamental rights, he found that judicial action was justified.  “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.”

Kennedy also rejected the argument that the Court should refrain from this ruling because of possible adverse impact on traditional marriages, finding that the argument “rests on a counterintuitive view of opposite-sex couples’ decisionmaking processes regarding marriage and parenthood.  Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.”

The Court devoted just one paragraph to the potential clash over religious liberty, asserting that the 1st Amendment “ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”  However, Kennedy shied away from opining about how the balance of rights might be struck in particular cases of the type that have arisen in recent years involving recalcitrant wedding photographers, florists, bakers and the like.

Kennedy briefly addressed the second question certified by the Court for argument, pointing out that all parties had acknowledged that if the Court found a right for same-sex couples to marry, the right to have those marriages recognized by the states would follow as of course.  “It follows that the Court also must hold — and it now does hold — that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

Kennedy concluded with a paragraph integrating the main points of his analysis in eloquent fashion:  “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”    Thus, at the end, Kennedy recurred to the same principle he had invoked two years ago in striking down Section 3 of the Defense of Marriage Act: equal dignity.

Chief Justice Roberts penned a “who decides” dissent, along the lines previously articulated by Judge Sutton in the 6th Circuit opinion.  “The fundamental right to marry does not include a right to make a State change its definition of marriage,” he wrote, insisting that defining marriage was the state’s prerogative as matter of democratic process.”  He found “the majority’s approach” to be “deeply disheartening.”  His dissent ended up being slightly longer than Kennedy’s opinion for the Court, embracing simplistic notions of the history of marriage that were directly contradicted by the detailed amicus briefs submitted on behalf of the plaintiffs.  For example, he referred to a “universal definition” of marriage as the “union of a man and a woman,” thus ignoring the numerous cultures in which plural marriage has long been accepted.  Rejecting Kennedy’s very empathetic view of the plaintiffs’ claims, Roberts asserted, “There is, after all, no ‘Companionship and Understanding’ or “Nobility and Dignity” Clause in the Constitution.”  He raised the question whether the Court’s opinion would reopen the question of plural marriage, which is being litigated by fundamentalist Mormons, and insisted that Kennedy’s argument sounded more in moral philosophy than in law.

In conclusion, he wrote: “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”  Justices Scalia and Thomas joined his dissent.

Scalia, the self-proclaimed originalist, was in fine fulminating form, although perhaps less colorfully than in his dissent a day earlier in the case upholding federal tax credits under the Affordable Care Act.  He was quick to observe that the generation that wrote and adopted the 14th Amendment would not have seen it as creating a right for same-sex couples to marry, and under his jurisprudence that should end the matter.  But, as he had done in the Windsor and Lawrence cases, he sharply criticized the Court for short-circuiting political debate.  Noting the “unrepresentative” nature of the Court, he questioned the legitimacy of it making such a policy decision.  “This is a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government,” he exclaimed.  “They have discovered in the Fourteenth Amendment a ‘fundamental rights’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”   He also criticized the opinion as being “couched in a style that is as pretentious as its content is egotistic.”  As he has frequently done in past dissents, he decried Justice Kennedy’s conception of liberty, concluding, “The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”  Actually, many past decisions of the Court emanating from its conservative voices have already done that many times over.  One need only cite Bush v. Gore and Citizen’s United. . .   Thomas joined Scalia’s dissent.

Justice Thomas has long contested the Court’s entire history of substantive due process doctrine, so this case was just one more example for him of illegitimate decision-making.  He argued that refusing to let same-sex couples marry does not deprive them of any liberty, insisting that the reference to “liberty” in the due process clause should be restricted to its “original” meaning of restrictions on mobility.   Thus, the state restricts your liberty when it locks you up, but not when it refuses to let you marry.  He located the origins of this concept in Magna Carta, the 800-year old English document signed by King John in 1215 to settle disputes with the English nobility about royal prerogative, and then traced the concept through American law up to the time of adoption of the 14th Amendment.  “When read in light of the history of that formulation,” he wrote, “it is hard to see how the ‘liberty’ protected by the Clause could be interpreted to include anything other than freedom from physical restraint.”  Even accepting a broader meaning, he held that it should be restricted to “individual freedom from governmental action, not as a right to a particular governmental entitlement.”  He insisted that “receiving governmental recognition and benefits has nothing to do with any understanding of ‘liberty’ that the Framers would have recognized.”  Scalia joined Thomas’s dissent.

Finally, Justice Alito’s dissent rechanneled his dissent from two years ago in U.S. v. Windsor, quoting from it extensively, arguing that there were various different views of marriage and that it was up to the people, through the democratic process, to decide which ones to embrace through law.  “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage,” he insisted.  He particularly bemoaned the likelihood that this ruling would lead to the oppression of people who oppose same-sex marriage, predicting future disputes.  “Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play,” he wrote.  “But if that sentiment prevails, the National will experience bitter and lasting wounds.”  Both Scalia and Thomas signed his opinion.

All the dissents sounded like rearguard actions seeking to provoke public discontent with the Court’s opinion.  But in that sense they are well within the tradition — at least the recent tradition — of Supreme Court dissenting opinions from the very polarized Court.  A 5-4 ruling may be bitterly argued, but it is no less a precedential holding of the Court than a unanimous  ruling.  Although there had been rumblings in the weeks leading up to this day that some state officials might try to avoid complying with a pro-marriage equality decisions, the immediate response of governors in the four states involved with this case seemed to be prompt, if reluctant, compliance with the Court’s decision.

A long list of attorneys participated in representing the various plaintiffs in this case, culminating in the presentations by three oral advocates at the Supreme Court — two representing the plaintiffs and one representing the Solicitor General as amicus curiae.  In the end, all of the nation’s LGBT litigation groups played a part, as did numerous groups who submitted amicus briefs to the Court, many of which were cited in the opinions.   One group among all others will be particularly affected by this ruling.  Evan Wolfson announced months ago that upon the achievement of marriage equality nationwide, his organization — Freedom to Marry — will wind up its affairs and cease to exist.

 

 

Federal Housing Discrimination Law May Cover Some Sexual Orientation Discrimination Claims

Posted on: June 23rd, 2015 by Art Leonard No Comments

A federal judge in Alabama has ruled that some sexual orientation discrimination claims may be made under the federal Fair Housing Act (FHA), a statute that forbids sex discrimination by owners and operators of residential housing facilities.  District Judge William M. Acker, Jr., ruling June 16 in Thomas v. Osegueda, 2015 U.S. Dist. LEXIS 77627, 2015 WL 3751994 (N.D. Alabama), rejected the argument that the court would not have jurisdiction of any sexual orientation discrimination claim under the FHA.

James Earl Thomas filed suit against Carlos Osegueda, a regional director for H.U.D., and Christian Newsome, a claims investigator, for refusing to process his discrimination claim.  Judge Acker’s decision says little about the nature of the underlying claim, other than to state that Thomas claims he was discriminated against by Aletheia House, a recipient of federal housing funds, “because he is not gay.”   According to Acker, Thomas claimed that “he was discriminated against based on his conformity to male stereotypes, such as stereotypes regarding cooking and buying furniture.”  The reference to male stereotypes was undoubtedly an attempt to shoehorn his claim into the sex stereotyping theory, under which courts construing other federal sex discrimination laws have found some basis for extending protection to sexual orientation discrimination litigants.

Thomas filed a petition seeking a writ of mandamus, a court order directing Osegueda and Newsome to process his claim.  On January 26, Acker issued a memorandum opinion granting the petition and ordering Osegueda and Newsome to respond with an explanation of why a hearing on the matter was not required.  They responded on March 13, asking Judge Acker to reconsider his opinion and to dismiss Thomas’s petition for lack of jurisdiction, arguing that the FHA “does not give” the agency “jurisdiction to investigate and prosecute complaints raising allegations of discrimination based on sexual orientation.”  This required Acker to get into the question whether the FHA bans sexual orientation discrimination.

He pointed out that in the past courts had routinely dismissed sexual orientation discrimination claims under federal sex discrimination statutes, but that the Department of Housing and Urban Development (HUD), the enforcing agency for the FHA, “has taken several steps to clarify and reinforce the fact that certain acts of discrimination based on sexual orientation are in fact within its jurisdiction.”  Although Congress has never amended any of the federal sex discrimination laws to explicitly add “sexual orientation” to the forbidden grounds for discrimination, “HUD has taken an increasingly expansive view of its delegated authority under the FHA relating to discrimination based on sexual orientation,” Acker wrote.

HUD issued a guidance document in 2010 which stated that “while the [FHA] does not specifically include sexual orientation and gender identity as prohibited bases … [an] LGBT person’s experience with sexual orientation or gender identity discrimination may still be covered by the [FHA].”  On February 3, 2012, HUD “published a final regulation, the Equal Access Rule, to implement ‘policy to ensure that its core programs are open to all eligible individuals and families regardless of sexual orientation, gender identity, or marital status.’  While the new regulation made various minor regulatory revisions to effectuate the rule’s broader policy goal, the core provision of this new rule revised the eligibility requirements for HUD-assisted or insured housing to now require ‘such housing shall be made available without regard to actual or perceived sexual orientation, gender identity, or marital status.'”  In explaining the coverage for sexual orientation, the agency said, “certain complaints from LGBT persons would be covered by the Fair Housing Act . . . including discrimination because of nonconformity with gender stereotypes.”  The agency also explained that it could investigate and enforce such claims “as sex discrimination.”  HUD also published an “interpretive document” on August 20, 2014, giving as an example of such a claim the harassment of a gay man by a maintenance worker at a public housing complex because of his effeminate demeanor.

“Given these recent agency actions broadly interpreting the jurisdictional scope of HUD acting under the FHA based on sexual orientation,” wrote Acker, he would have to determine whether “HUD’s interpretation of its authority squares with the statutory language of the FHA.”  He concluded that it did, so long as HUD did not seek to assert its jurisdiction to sexual orientation claims that did not include a plausible allegation of sex stereotyping.  The sex stereotyping theory was recognized by the Supreme Court in 1989 in the case of Price Waterhouse v. Hopkins, where a masculine-acting woman was challenging an accounting firm’s refusal to make her a partner.  Since then, and most emphatically since President Obama took office in 2009, federal agencies have been advancing the sex stereotyping theory to find a basis for protecting gay and transgender people from discrimination.  The Equal Employment Opportunity Commission, which enforces Title VII of the Civil Rights Act of 1964, recently sent a memorandum to its regional offices similarly suggesting that they could accept employment discrimination claims from gay people using this theory in appropriate cases, and some federal district courts have refused to dismiss Title VII sex discrimination charges filed by gay men using this theory.

“These types of expanded protections for such individuals under the FHA is directly rooted in non-conformity with male or female gender stereotypes, and not directly derivative of sexual orientation as an independent and separate ground for protection,” wrote Acker.  “Considering the deference due by the court to agency interpretations,” he continued, “HUD’s narrow tailoring of jurisdiction for discrimination based on sexual orientation to protections for gender stereotyping in its interpretation of the FHA is a permissible reading of ‘sex.'”

However, this was no help to James Earl Thomas, who had alleged discrimination under a housing program because he “is not gay.”  “Thomas does not petition under a theory of gender non-conformity but rather relies on sexual orientation as the sole basis for discrimination separate and independent of gender,” wrote Acker, emphasizing that Thomas claimed he was discriminated against because of his “conformity to male stereotypes,” not because of a departure from such stereotypes.  “Even under HUD’s expanded interpretation of the FHA for gender stereotyping, these allegations are outside the scope of the FHA’s ‘sex’ discrimination protection and therefore HUD lacks the jurisdiction for respondents to act upon them.”

There is a certain illogic to this decision.  Surely, if a man suffers discrimination because he conforms to male stereotypes, wouldn’t that be a form of sex discrimination?  But, as Judge Acker pointed out, Thomas, who was representing himself in this case, insisted that he was suffering discrimination because “he is not gay,” and thus was claiming sexual orientation discrimination, not sex discrimination.

Turning briefly to a possible claim under the Equal Access Rule, Acker pointed out that the two named defendants did not have authority to accept and investigate discrimination claims under that rule, which applies to recipients of federal funding such as Aletheia House and is administered by a different office of the agency.  He observed that HUD had forwarded Thomas’s complaint to the relevant agency, since his charged involved a federally-assisted housing program, and since that office had not yet rejected his claim, a care for relief against a refusal to investigate would be premature.

New Jersey Trial Judge Finds Conversion Therapy Outfit Violated Consumer Fraud Law

Posted on: February 17th, 2015 by Art Leonard No Comments

A New Jersey trial judge issued two rulings in February in a pending consumer fraud case against JONAH (Jews Offering New Alternatives for Healing), an organization that provides so-called “conversion therapy” seeking to “assist individuals to purge unwanted same-sex attractions,” finding that certain representations made by JONAH to potential clients violate the state’s law against consumer fraud.  The judge, Peter  F. Bariso, Jr., of the Superior Court in Hudson County, also ruled that most of the expert witnesses proposed by JONAH should be barred from testifying, because their opinions were premised on discredited views about homosexuality.  Ferguson v. JONAH, 2015 N.J. Super. Unpub. LEXIS 236 (Feb. 5) (ruling on expert witnesses); Ferguson v. JONAH, Docket No. L-5473-12 (Feb. 10) (ruling on summary judgment motions).

Six individuals represented by the Southern Poverty Law Center and attorneys from Clearly Gottlieb Steen & Hamilton (NY) and Lite DePalma Greenberg (NJ) filed the lawsuit in November 2014, claiming that they had been defrauded by JONAH and demanding reimbursement of the fees they had paid and compensation for the costs of therapy they had to undergo to undo the damage caused by JONAH’s ministrations.  Both sides had filed motions seeking to disqualify expert witnesses listed to testify by their opponents, and both parties filed motions seeking to have the court decide certain key issues in the case as a matter of law, without the need to submit disputed facts to the jury.  Judge Bariso issued his opinion on the expert witnesses on February 5, and his opinion on the summary judgment motions on February 10.

Common to both rulings was the question whether it is fraudulent for somebody to market a conversion therapy program by representing homosexuality as a mental illness, disease or disorder that can be “changed” by treatment, whether it was deceptive to make statements that would lead a prospective client to believe that they would be able to change their sexual orientation as opposed to merely being conditioned not to engage in same-sex activity, and whether it was fraudulent to include specific “success” statistics when there is no factual basis for calculating such statistics.  Judge Bariso made clear in his decisions that the plaintiffs were not mounting a general attack on the practice of sexual orientation change efforts (SOCE) by mental health professionals, a practice that was recently made unlawful by a New Jersey statute that has withstood constitutional attack in federal court.  Rather, this consumer fraud suit is more narrowly focused on the question whether JONAH has defrauded and harmed these plaintiffs by the representations it made about its services.

“In the area of scientific evidence,” wrote Judge Bariso, “expert testimony will be deemed acceptable only if the technique or mode of analysis used has ‘a sufficient scientific basis to produce uniform and reasonably reliable results so as to contribute materially to the ascertainment of the truth,'” quoting from a 2005 New Jersey Supreme Court decision, State v. Torres.  “The reliability requirement applies to all scientific fields, including the social and psychological sciences.  In New Jersey, reliability of a scientific technique can be proven in most cases by showing its ‘general acceptance in the particular field in which it belongs,'” quoting a leading case on the criteria for expert testimony, Frye v. United States.  In other words, if a proposed expert is going to express views on scientific topics that lie outside the “general acceptance” of the relevant profession, are not supported by “authoritative scientific and legal writing indicating that the scientific community accepts the premises underlying the proffered testimony;” or do not  have the support of relevant judicial opinions finding general acceptance, then such testimony should be excluded.

Using this standard, Judge Bariso found that the proposed scientific experts, all affiliated in some way with organizations supporting conversion therapy, were not qualified to testify.  “The overwhelming weight of scientific authority concludes that homosexuality is not a disorder or abnormal,” he found.  “The universal acceptance of that scientific conclusion — save for outliers such as JONAH — requires that any expert opinions to the contrary must be barred.”  The judge focused on the 1973 vote by members of the American Psychiatric Association to remove “homosexuality” from its official listing of mental disorders, the Diagnostic and Statistical Manual (DSM), which was soon followed by other professional and public health organizations both domestically and internationally.

“JONAH’s suggestion that the court should ignore the DSM misapprehends basic New Jersey law,” he wrote.  “Under the general acceptance standard, the DSM is unquestionably authoritative in the mental health field; courts repeatedly have concluded this to be the case.”  JONAH contended, as some critics have argued, that the APA’s vote was “a politically motivated decision to de-stigmatize homosexuality, and was not based on science.”  But, countered the judge, it is not up to a trial court to “substitute its judgment for that of the relevant scientific community.”  The court does not sit in judgment of whether the APA’s decision was correct, “and no proper basis has been advanced on which a court may reassess the scientific accuracy of the psychiatric characterization of homosexuality.”  After reciting the long list of prestigious organizations that followed the APA’s lead, Bariso commented, “JONAH can hardly argue that all of these organizations — including a federal appellate court [rejecting the challenge to New Jersey’s ban on SOCE therapy] — were the victims of manipulation by ‘gay lobbying’ groups.”

JONAH had pointed to the National Association for Research and Therapy of Homosexuality (NARTH), a small organization co-founded by one of the proposed expert witnesses, Dr. Joseph Nicolosi, a fervent proponent of conversion therapy, as an example of contrary scientific opinion by a professional organization, but the judge pointed out that there need not be unanimity of professional opinion, merely general acceptance.  “The existence of a minority of conversion therapy proponents does not and cannot negate the fact that the DSM and its exclusion of homosexuality are generally accepted in the mental health field,” wrote Bariso.  “Furthermore, a group of a few closely associated experts cannot incestuously validate one another as a means of establishing the reliability of their shared theories.”

Furthermore, he pointed out, “JONAH has not identified any case that provides a standard for the admission of obsolete and discredited scientific theories.  By definition, such theories are unreliable and can offer no assistance to the jury, but rather present only confusion and prejudice.”

Judge Bariso also ruled that two proposed experts should be denied because their testimony was not really relevant to the consumer fraud claims before the court.  Whether JONAH’s statements were consistent with Orthodox Judaism, for example, was irrelevant if the statements were misleading about homosexuality and the efficacy of the therapy offered by JONAH.  Similarly irrelevant was testimony about the health risks of engaging in homosexual conduct.

The findings about homosexuality in the court’s February 5 ruling were incorporated by reference into the February 10 ruling on the summary judgment motions.  Judge Bariso denied all of JONAH’s motions, and granted several of the plaintiffs’ motions.  Specifically, he ruled that “it is a misrepresentation in violation of the Consumer Fraud Act, in advertising or selling conversion therapy services, to describe homosexuality, not as being a normal variation of human sexuality, but as being a mental illness, disease, disorder, or equivalent thereof” and that “it is a misrepresentation in violation of the Consumer Fraud Act, in advertising or selling conversion therapy services, to include specific ‘success’ statistics when there is no factual basis for calculating such statistics, e.g., when client outcomes are not tracked and no records of client outcomes are maintained.”  However, the judge concluded that it should be up to a jury to decide whether a person would be misled by JONAH’s description of the “change” its therapy sought to achieve with clients.  The court also struck out several affirmative defenses advanced by JONAH, including claims that its representations were constitutionally protected speech or free exercise of religion.

While these pretrial rulings do not end the case, they sharply increase the likelihood that JONAH will be found at trial to be liable to the plaintiffs for damages.  It will be up to the plaintiffs to prove that JONAH made the unlawful representations, that its statements about the “change” it sought to achieve through therapy were similarly misleading, and that as a result the plaintiffs were defrauded and are entitled to a refund of fees (in some cases as much as $10,000 for a year of treatment) as well as compensation for the treatment they subsequently sought because of the psychological injury they claim to have suffered as a result of the therapy.  The burden at trial to prove these injuries is placed on the plaintiffs.

Although New Jersey Superior Court decisions are not routinely published, the legal database LEXIS has published Judge Bariso’s February 5 ruling, which includes a detailed report of the plaintiffs’ allegations about some of the treatment methods used by JONAH’s counselors.  To this reader, these techniques appear on their face to be simplistic, misguided, and potentially damaging to the mental health of the clients, as the plaintiffs claim.  They also sound, in some cases, strangely homoerotic as well, and thus potentially quite troubling to clients who were desperate to purge themselves of homosexual attractions.

Supreme Court Grants Four Petitions to Review 6th Circuit’s Marriage Ruling

Posted on: January 19th, 2015 by Art Leonard No Comments

The U.S. Supreme Court announced on January 16, 2015, that it was granting four petitions to review the 6th Circuit Court of Appeals ruling in DeBoer v. Snyder, 772 F.3d 388 (Nov. 6, 2014), which had rejected the claim that same-sex couples have a constitutional right to marry and to have such marriages recognized by other states.  The 6th Circuit’s ruling, issued on November 6 on appeals by four states from district court pro-marriage equality decisions, had opened up a split among the circuit courts, as the 4th, 7th, 9th and 10th Circuits had all ruled in favor of marriage equality claims during 2014, and the Supreme Court had refused on October 6 to review the rulings by the 4th, 7th and 10th Circuits.  (The 9th Circuit ruled was issued the day after the Supreme Court announced the three cert. denials, and only one of the two states involved in that case, Idaho, has filed cert. petitions, on which the Court has not taken action.) DeBoer v. Snyder, No. 14-571, cert. granted, 2015 WL 213650 (Jan. 16, 2015); Obergefell v. Hodges, No. 14-556, cert. granted, 2015 WL 213646 (Jan. 16, 2015); Tanco v. Haslam, No. 14-562, cert. granted, 2015 WL 213648 (Jan. 16, 2015); Bourke v. Beshear, No. 14-574, cert. granted, 2015 WL 213651 (Jan. 16, 2015).  Attorney General Eric Holder, Jr., quickly announced that the Justice Department would file a brief with the Court urging reversal of the 6th Circuit.

The Court’s announcement of the cert. grant was accompanied by an announcement that the cases have been consolidated for the Court’s consideration, and that the grant was limited to the following two questions: (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?  The Court allotted 90 minutes for oral argument on Question 1 and 60 minutes for oral argument on Question 2.  Presumably these time allocations were made to assure that attorneys representing each of the four states involved – Ohio, Michigan, Kentucky and Tennessee – would have time to argue, and that representatives of each of the Petitioners would also have sufficient time.   Also, presumably, the questions were phrased this way and the argument divided into two parts because some of the cert. petitions address only marriage recognition, while others asked whether states are required to let same sex couples marry.

Three of the cases were decided on pretrial motions while the Michigan decision (DeBoer) followed a full trial on the merits, providing the Court with a trial record and detailed factual findings by the district court.  The Court limited the parties to briefing on the merits and presenting oral arguments on the questions presented in “their respective petitions.”  Thus the parties in the Ohio (Obergefell) and Tennessee (Tanco) cases will be arguing on Question 2, while the parties in the Michigan (DeBoer) case will address Question 1, and the parties in the Kentucky case (Bourke) case will be arguing on both questions.  Presumably the Court also scheduled a separate argument on the recognition question because it implicates some different doctrinal issues from the marriage argument.  Indeed, the recognition question could be decided by a straightforward extension of U.S. v. Windsor without ever addressing whether states are required to issue marriage licenses to same sex couples, since the states are not really presenting significantly different arguments from those raised by the defenders of DOMA as reasons for the federal government to refuse to recognize same sex marriages.   The Court’s announcement did not specify how the time would be divided between the parties, but presumably Petitioners will get half the time and Respondents will get half the time and perhaps be left to work out among themselves how to allocate the time within their share.  Several LGBT litigation groups are among the attorneys representing Respondents.

The Court’s announcement included a tight briefing schedule calculated to get the case argued and decided before the end of the Supreme Court’s term in June.  Petitioners’ merits briefs are due by 2 pm on Friday, February 27, Respondents’ briefs by 2 p.m. on Friday, March 27, and all reply briefs by 2 p.m. on Friday, April 17.  Potential amici would be subject to the same tight briefing schedule.  The last scheduled argument date on the Court’s calendar for the October 2014 Term is April 29, 2015, so it seems likely the arguments will be held on April 27, 28 or 29, which would give the Court two months to settle on opinions if it wants to release them before the term ends.  According to the Court’s posted calendar, the last date for announcing decisions is June 29, but the Court has been known to extend the end of the term by a few days to dole out end-of-term opinions as they are ready.

The Court’s actions since October 6 may provide some insight in trying to forecast how the Court will ultimately rule.  After it denied certiorari in the cases from the 4th, 7th, and 10th Circuits on October 6, the Court denied all subsequent motions from other states in those circuits to stay subsequent marriage equality rulings issued by district courts there.  The Court similarly denied all motions to stay district court rulings from states in the 9th Circuit after that circuit’s October 7 ruling.  Most significantly, the Court issued an order on December 19, denying a motion by Florida Attorney General Pam Bondi to stay a U.S. District Court marriage equality ruling in that state, pending the state’s appeal to the 11th Circuit Court of Appeals.  That a majority of the Supreme Court was not willing to stay the Florida ruling, even though the case was yet to be decided by the 11th Circuit, spoke volumes about the likely outcome of its decision on the merits.  If a majority of the Court was not willing to stay the Florida ruling pending appeal, it seems likely that a majority of the Court is ready to rule on the merits in favor of marriage equality.  Only Justices Antonin Scalia and Clarence Thomas were announced as disagreeing with the Court’s denial of a stay.  Although it is always hazardous to predict what the Supreme Court will ultimately do on an issue as to which it is likely to be sharply divided, it is also likely that there will be some consistency between the Court’s actions on stay motions after October 6 and its final ruling.  It is worth noting that prior to October 6, the Court granted every stay motion presented by a state seeking to delay lower court marriage equality decisions pending appellate review.

Over two years ago, the Court announced in December 2012 that it would review a decision by the 9th Circuit Court of Appeals that struck down California’s Proposition 8, a state constitutional amendment enacted by voter initiative in 2008 that banned the performance or recognition of same sex marriages in California.  At that time, the Court added a question to those posed by the defenders of Prop 8 in their petition for review of the lower court decision striking it down: whether the Petitioners had “standing” to appeal the original ruling by the district court in San Francisco?  As none of the California officials named as defendants in Perry v. Schwarzenegger was willing to defend Proposition 8 on the merits, the district court had allowed the proponents of the initiative to intervene, and it was they who were appealing the ruling.  During the oral argument in that case, titled Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), some of the time was taken up by arguments about the Petitioner’s standing, but the remaining time was devoted to arguing the merits.  Those curious about the types of questions the Supreme Court justices might pose to attorneys on Question 1 in the DeBoer case can access the audio recording of the oral argument on the Supreme Court’s website.  (The oral argument in Hollingsworth did not focus on the recognition question.)

Based on the Hollingsworth oral argument, there were predictions that the Court might vote 5-4 to strike down Proposition 8, but ultimately the Court concluded, in an opinion by Chief Justice John G. Roberts, Jr., that the Petitioners did not have standing, thus leaving the district court’s ruling in place and effectively striking down Proposition 8 without a Supreme Court ruling on the merits, on June 26, 2013.  Same sex marriages resumed in the nation’s most populous state a few days later.  The dissenting opinion in Hollingsworth was written by Justice Anthony M. Kennedy, Jr., who argued that the Court had erred in finding lack of standing but who carefully limited his opinion from expressing any view as to the constitutionality of Proposition 8.

Justice Kennedy was the author of the other momentous marriage equality decision issued on the same day, United States v. Windsor, 133 S. Ct. 2675 (2013), in which the Court voted 5-4 to declare unconstitutional the federal definition of marriage in the Defense of Marriage Act.  In common with Kennedy’s earlier gay rights opinions in Romer v. Evans and Lawrence v. Texas, his Windsor opinion was not ideally clear about its doctrinal grounding, never expressly stating that the case involved a fundamental right or a suspect classification, or merited heightened scrutiny, thus spawning a variety of views from legal commentators and lower court judges and the precedential meaning of the opinion.  The 9th Circuit construed Windsor to be a suspect classification case, and decreed “heightened scrutiny” as the standard to apply in subsequent equal protection cases brought by gay plaintiffs.  See Smithkline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, motion for rehearing en banc denied, 759 F.3d 990 (9th Cir. 2014). On this basis the 9th Circuit subsequently struck down the Nevada and Idaho same sex marriage bans in Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), motion for rehearing en banc denied, 2015 WL 128117 (Jan. 9, 2015), petitions for cert. pending.  Some other courts ducked these issues, instead striking down bans on same sex marriage by finding that none of the alleged justifications for the bans survived some form of rational basis review, or that the bans were products of unconstitutional animus.  Some commentators have suggested that Kennedy’s decision is most explicable as being based on his view that DOMA was an expression of animus against gay people by Congress.  Justice Antonin Scalia, dissenting from the Court’s decision, argued, as he had in his Lawrence dissent ten years earlier, that the majority opinion would support claims for the right of same sex couples to marry, and many of the lower court decisions cited and quoted from one or both of his dissents in support of their conclusions.

The Windsor ruling led to an avalanche of marriage equality lawsuits in every state that did not allow same sex couples to marry. The avalanche of lawsuits soon turned into an avalanche of court opinions.  Within weeks of Windsor, the federal district court in Ohio had ordered preliminary relief in Obergefell v. Kasich, 2013 WL 3814262 (S.D. Ohio, July 22, 2013), a marriage recognition case, and in December the district court in Utah issued a ruling on the merits striking down that state’s same sex marriage ban in Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah, Dec. 20, 2013).  Dozens of district court rulings and rulings by four circuit courts of appeals followed during 2014, so that by the time the Court granted cert. to review the 6th Circuit decision on January 16, 2015, same sex couples could marry in 37 states and the District of Columbia.  (In two of those states, Kansas and Missouri, disputes about the scope of lower court rulings made marriage available only in certain counties while the litigation continued.) There were also marriage equality district court decisions pending on appeal before the 1st, 5th, 8th and 11th Circuits.  The only federal courts to have rejected marriage equality claims after Windsor were district courts in Louisiana and Puerto Rico and the 6th Circuit Court of Appeals, in the consolidated case from four states that the Supreme Court will review.  A week before granting cert. in the 6th Circuit case, the Court rejected an attempt by Lambda Legal to get direct review of the Louisiana decision, Robicheaux v. Caldwell, 2 F.Supp.3d 910 (E.D. La. 2014), cert. denied, 2015 WL 133500 (Jan. 12, 2015).  The Court denied that petition just days after the 5th Circuit heard oral arguments in that appeal as well as state appeals from marriage equality rulings in Texas and Mississippi.

The most pressing question presented by the cert. grant, of course, is whether the Court will use this case to declare a constitutional right to marry throughout the United States, and to have those marriages recognized wherever a married couple might travel or reside.  But to those following the course of gay rights in the courts, the question of what rationale the Court uses to decide the case will also be pressing, especially as the various circuit court decisions have adopted different theories that might have a different impact for litigation about other issues.  This case may also give the Court an opportunity to clarify the circumstances under which lower federal courts are bound to follow an old Supreme Court decision whose rationale appears to have been eroded by subsequent legal developments.

The 6th Circuit opinion by Circuit Judge Jeffrey Sutton held that the Supreme Court’s dismissal of a constitutional challenge to Minnesota’s same-sex marriage ban in Baker v. Nelson, 409 U.S. 810 (1972), precluded a ruling for the plaintiffs, as the Supreme Court had never overruled or disavowed that decision, in which the Court had stated that the issue of same-sex marriage did not present a “substantial federal question” with no further discussion or explanation.  That ruling was also cited by the Louisiana and Puerto Rico district courts in their rejection of marriage equality claims, and it played a prominent role in a lengthy dissenting opinion issued just a week earlier by 9th Circuit Judge Diarmuid O’Scannlain, protesting his court’s refusal to reconsider its marriage equality ruling as requested by Idaho Governor Butch Otter.  See Latta v. Otter, 2015 WL 128117 (Jan. 9, 2015).

The question of the continuing precedential authority of Baker v. Nelson came up during the oral argument at the Supreme Court in Hollingsworth, the Proposition 8 case, when counsel for the Prop 8 proponents argued that the district court should not have ruled on the merits in that case because of Baker.  At that time, Justice Ruth Bader Ginsburg dismissed Baker’s significance, point out that when Baker was decided the Court had not yet issued its rulings holding that heightened scrutiny applied to sex discrimination claims.  Because the 6th Circuit put such weight on Baker v. Nelson, it is likely to be discussed again during the DeBoer argument, and might also be addressed in the Court’s subsequent opinion.

The 4th, 7th, 9th and 10th Circuits all held that Baker was no longer a binding precedent, noting that since 1972 the Court had expanded its view of the fundamental right to marry in a series of cases building on its historic 1967 decision striking down Virginia’s criminal law banning interracial marriages, Loving v Virginia; that it had struck down an anti-gay state constitutional amendment on an equal protection challenge in Romer v. Evans in 1996; that it had struck down anti-gay sodomy laws in Lawrence v. Texas in 2003; and, of course, that it had struck down as violating both due process and equal protection the federal ban on recognizing same sex marriages in Windsor in 2013. In light of all these developments, even though the Court had never expressly overruled Baker, it would be ludicrous to suggest that same sex marriage does not present a “substantial federal question” after June 26, 2013. Even the Court’s most outspoken opponent of gay rights, Justice Antonin Scalia, might conceded to that point, since his dissenting opinions in Lawrence v. Texas and U.S. v. Windsor both proclaimed that the rationale of the majority opinions in those cases would open up claims for same-sex marriage, rendering the Court’s ipse dixit in Baker irrelevant.  The Windsor majority opinion did not even mention Baker v. Nelson, which the court below, the 2nd Circuit, dismissed as not relevant to the questions presented in that case.

The courts that have rejected marriage equality claims relying on Baker have stressed that the Court’s summary dismissal in Baker followed by several years its ruling in Loving v. Virginia.  They argue that this makes clear that the fundamental right to marry, as identified in Loving, could not extend to same sex couples; if it did, they argued, the Court would not have dismissed the Baker appeal.  This argument treats Loving as entirely a race discrimination case, but it conveniently ignores the way Loving was expanded by the Supreme Court in subsequent cases, including Turner and Zablocki, which spoke broadly of the fundamental right to marry as transcending the narrow issue of procreation and didn’t turn on racial issues.

In the marriage equality decisions during 2014 from the 4th and 10th Circuits, Bostic v. Schaefer, 760 F.3d 352 (4th Cir.), cert. denied, sub nom Rainey v. Bostic, 135 S. Ct. 286 (Oct. 6, 2014), and Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert. denied, 135 S. Ct. 271 (Oct. 6, 2014), the courts held that same-sex couples were being deprived of a fundamental right to marry, and that the states had failed to show that they had compelling justifications for abridging that right.  Hedging their bets, these courts also found that the state’s justifications failed to meet rationality review.  A Supreme Court ruling on this ground would not disturb the Court’s continuing reluctance to find explicitly that sexual orientation is a suspect classification, which would raise a presumption of unconstitutionality every time the government adopts a policy that discriminates on that basis and would put the burden on the government to prove an important, even compelling, policy justification to defend its position.  On the other hand, the 7th and 9th Circuits, in Baskin v. Bogan, 766 F.3d 648 (7th Cir.), cert. denied sub nom. Bogan v. Baskin and Walker v. Wolf, 135 S.Ct. 316 (Oct. 06, 2014), and Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), motion for rehearing en banc denied,  2015 WL 128117 (Jan. 9, 2015), premised their decisions on equal protection, with the 9th Circuit, in line with its earlier ruling in a jury selection case, holding that sexual orientation discrimination calls for heightened scrutiny and the 7th Circuit following a similar path without articulating the “suspect classification” terminology.  A Supreme Court ruling based on equal protection that overtly applies heightened scrutiny would have a more far-reaching effect in other gay rights cases outside the marriage issue, which is why it seems more likely that the Court would take the due process route, or, as some argue that Justice Kennedy did in Windsor, attribute the same-sex marriage bans to unconstitutional animus and avoid any overt expression as to the other doctrinal issues.  The Court might be leery about reaffirming too broad a fundamental marriage right, for fear that it would put in play constitutional challenges to laws penalizing polygamy, adultery, and incest (as Scalia argued in his Lawrence dissent).  A ruling premised on finding animus as the prima motivator of same sex marriage bans would end the bans without necessarily altering Supreme Court doctrine applicable to any other gay-related or marriage-related issues that might come before the Court.

Most predictions about how the Court may rule presume that the Windsor majority will hold together and that the Windsor dissenters would dissent.  That would make Justice Kennedy the senior member of the majority who would likely assign the opinion to himself, as he did in Windsor.  (Now-retired Justice John Paul Stevens was the senior justice in the majority in Romer and Lawrence and assigned those opinions to Justice Kennedy, who returned the favor in Lawrence by prominently citing and quoting from Stevens’ dissenting opinion in Bowers v. Hardwick.)  Nobody is predicting that Justices Scalia, Thomas or Samuel Alito would abandon their dissenting votes in Windsor to join a marriage-equality majority, so they are unlikely to have any role in determining the Court’s doctrinal path in the case.  Indeed, Judge Sutton’s opinion for the 6th Circuit defiantly embraced the “originalism” approach advocated by Justices Scalia and Thomas for construing the 14th Amendment (an approach never endorsed by a majority of the Court), under which a claim for marriage equality would founder on the argument that the mid-19th century framers of that amendment could not possibly have intended or understood that its provisions would require states to license marriages by same sex couples.  Justice Kennedy, whose opinions in Lawrence and Windsor clearly disavowed an originalist approach to interpreting the scope of liberty protected by the due process clause, would never agree to these arguments.   However, there has been speculation that Chief Justice Roberts might join the majority, which would give him control of the opinion assignment.  In that case, one might expect a narrowly-focused opinion intended to keep together a doctrinally diverse majority of the Court, and intended to have as little effect on other cases as possible.

In the wake of the cert. grant, several media commentators tried to find particular significance in the Court’s wording of the questions and division of the argument, suggesting that the majority of the Court might have a plan to rule for the Petitioners on marriage recognition while ruling for the Respondents on the question whether states must license same sex marriages.  Such an approach was floated by 5th Circuit Judge James Graves in his questioning on January 9 during oral arguments of the appeals from Texas, Mississippi and Louisiana, but strongly refuted by counsel for the plaintiffs in those cases.  One suspects that the 5th Circuit may hold off on issuing a ruling now that the Supreme Court has granted cert. to decide these questions, in which case we may never find out whether Judge Graves is committed to that course.  However, in light of the procedural and substantive posture of the cert. petitions coming up from four different states, the Court’s organization of the questions and division of the argument appears more a logical response to a complicated appellate situation than a strategic move to produce a “split the baby” decision.

Magistrate Denies HIV-Positive Gay Discrimination Plaintiff’s Request to Sue Anonymously

Posted on: September 10th, 2014 by Art Leonard No Comments

U.S. Magistrate Judge Joseph C. Wilkinson, Jr., has denied a request by a gay HIV-positive man to have his identity shielded from public exposure in the discrimination lawsuit he has filed against his former employer in the federal district court in New Orleans, Louisiana.

According to Wilkinson’s September 5 ruling on a motion filed by the plaintiff simultaneously with his discrimination complaint, the plaintiff is claiming violations of Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, and the Americans with Disabilities Act, which prohibits employment discrimination against qualified individuals with disabilities.  His motion states that he “is an HIV positive homosexual male with an understandable fear that if his health status is made public, it will negatively affect his life in multiple ways.”  “The only specific concern expressed in plaintiff’s motion papers,” wrote Wilkinson, “is that he ‘believes . . . he will have difficulty finding new employment should his HIV status be made public.”

Wilkinson pointed out that the general rule is that parties to a lawsuit have to sue in their own name.   In fact, the Federal Rules of Civil Procedure state that “the complaint of the title of the action shall include the names of all the parties” and, Wilkinson further notes, Title VII does not establish any exception to this general principle.  Plaintiffs are not automatically entitled to proceed anonymously, although courts sometimes exercise their discretion to allow a particular plaintiff to proceed as “John Doe” or “Jane Roe.”  Perhaps the most famous example is the Supreme Court’s leading abortion case, Roe v. Wade, in which the trial court accepted the plaintiff’s argument that due to the controversy about criminal abortion laws and her own situation as an unmarried pregnant woman when she filed the case challenging the Texas law, she should be able to proceed as “Jane Roe.”

Complaints filed in federal court are deemed to be public records that are open to the inspection of the public.  When cases are deemed newsworthy, it is very common for news reporters to look at court files and publish the names of parties in reports about their cases.  The plaintiff in this case did not want to be forced to “out” himself as both gay and HIV-positive in order to be able to vindicate his rights in federal court.

The plaintiff cited a 1979 decision by the 5th Circuit Court of Appeals, which identified “homosexuality” as one of the “matters” that might justify allowing a plaintiff to file anonymously, but that case was decided when “homosexual sodomy” was a crime in Texas.  Then, as now, neither Texas nor federal law provided explicit protection against discrimination because of sexual orientation.  In the case cited by the plaintiff, which did not involve homosexuality, the 5th Circuit denied a motion filed  by sex discrimination plaintiffs  who were concerned that their suit would make them vulnerable to retaliation by their present employer or prospective future employers, because they did not show that they would face a “greater threat of retaliation than the typical plaintiff alleging Title VII violations.”

Wilkinson asserted that the court’s record is “presumptively a public record, open to view by all, and requests to seal the court’s record are not lightly granted or considered.”  He said that he would have to balance the public’s “common law right of access against the interests favoring non-disclosure,” and that the plaintiff would bear the burden to show that the interest in secrecy outweighs the presumption.”

“Weighing these factors in the instant case militates against permitting this plaintiff to proceed anonymously,” wrote Wilkinson.  “Although sexual preference is certainly a personal matter and homosexuality is one of the ‘matters of a sensitive nature’ identified in the above-cited Fifth Circuit opinion, public opinion about both homosexuality and HIV positive status has become more diverse and accepting during the 35 years since that decision.  Certainly, only the seriously uninformed today act under the erroneous impression that HIV transmission might occur in ordinary workplace activity.  Other plaintiffs asserting claims in civil actions in which their sexual preference is an issue have done so publicly and in their real names,” he continued, citing the current lawsuit challenging Louisiana’s ban on same-sex marriage.  “The plaintiff in the instant case is not challenging the validity of any governmental activity and will not have to admit violation of any laws or governmental regulations in pursuing these claims.  He is not a child or incompetent person requiring extraordinary protection.  Defendants — whose names have already been published in the court’s record — have been the subject of public accusations by plaintiff that may do damage to their good names, reputation and economic standing.”

Wilkinson also said that the “legal bases” for the plaintiff’s claims under Title VII and the ADA “are subject to debate.”  Most federal courts have rejected the argument that discrimination because of sexual orientation is covered by the Title VII ban on sex discrimination, and lower courts are divided about whether an HIV-positive person would automatically be protected from discrimination under the ADA without specific evidence of physical or mental impairment. “The public interest in and level of debate over these kinds of topics appears high,” wrote Wilkinson.

The judge concluded that the plaintiff would not face any “greater threat of retaliation than the typical plaintiffs alleging Title VII violations under their real names and not anonymously,” so the plaintiff’s motion to “proceed under a fictitious name or, alternatively, to seal the entire record of this case” was denied.

The court’s opinion shows a particular insensitivity to the vulnerability of HIV-positive individuals, regardless of their sexual orientation, seeking a remedy for employment discrimination.  While it might be true that “outing” oneself as gay is not quite such a big deal as it was 35 years ago, it is nonetheless a significant and terrifying step for many people, and studies show that anti-gay employment discrimination is still a major issue.

Furthermore, the court’s ruling is completely insensitive to the particular issues presented by the Americans with Disabilities Act, a statute that recognizes the confidentiality concerns of people living with disabilities by requiring employers to preserve the confidentiality of medical records and not unnecessarily disclosing the medical conditions of their employees.  Thus, the judge’s focus solely on Title VII presents an incomplete analysis of the factors to be weighed.

The judge reveals his own ignorance about the nature of HIV-related discrimination, which is not confined to fears of contagion in the workplace.  Employers may fear the impact on co-worker morale of having a colleague who is known to be living with HIV, as well as the potential impact on its employee benefits plan of covering HIV-related medication.  Employers may also believe that a job applicant with HIV will have a poor attendance record, or will not be employed long enough to justify the investment in training for a new job.  There might be many reasons why employers would discriminate against applicants known to be HIV-positive.

A decision requiring an HIV-positive person to disclose his or her serostatus in a public record as a condition of seeking redress for discrimination seems inconsistent with the remedial policy behind the ADA, since it could strongly discourage HIV-positive people with potentially valid claims from filing suit.  It is particularly inconsistent with the 2008 ADA Amendments Act, which was intended by Congress to make clear that HIV-positive people are protected against discrimination, regardless what some uncomprehending federal trial courts have held.

4th Circuit Panel Acquits Gay Man Arrested in North Carolina Sting Operation

Posted on: July 21st, 2013 by Art Leonard No Comments

Reversing decisions by U.S. District Judge Martin K. Reidiner and a U.S. Magistrate Judge, a three-judge panel of the U.S. 4th Circuit Court of Appeals voted 2-1 to acquit a gay man who had been convicted of disorderly conduct for groping an undercover federal ranger who had targeted him in a vice sting operation in November 2009 at the Sleepy Gap Overlook of the Blue Ridge Parkway in Buncombe County, North Carolina, near the city of Asheville.  The decision is U.S. v. Lanning, 2013 U.S. App. LEXIS 14645 (4th Cir., July 19, 2013).

Writing for the court, Circuit Judge James A. Wynn, Jr., found that “no rational trier of fact could find beyond a reasonable doubt” that Joe Lanning’s “brief touch of the ranger’s crotch, done in response to the ranger’s deliberate attempt to convince Defendant that he would have sex with him, was ‘physically threatening or menacing’ or ‘likely to inflict injury or incite an immediate breach of the peace.’” Wynn also found that Lanning’s conduct was not “obscene” under the circumstances.

The U.S. Park Service and Forest Service, claiming to have received complaints from members of the public that the Sleepy Gap Overlook had become a locus of gay male sex activity, undertook a joint operation “designed to enable officers to identify and arrest men who were using the area for sexual solicitation or activity with other men.” Joe Darling, a 200 pound 33- year-old park ranger, had been assigned to undercover duty as part of this operation, and was out looking to find gay men to arrest.

Darling spotted Joe Lanning, a 62-year-old retiree, on a trail near the Overlook, and set out to arrest him by provoking him into some actionable conduct. As Judge Wynn tells the story in his summary of the trial record, “As Darling walked past Defendant, Defendant grabbed his own groin and kept walking. Darling said hello and also kept walking. Five or ten minutes later, after walking around in the woods and talking to a few other people, Darling went looking for Defendant and found him standing by himself on an unofficial trail. Darling engaged Defendant in a casual conversation about the weather for several minutes. Darling then commented that Asheville was ‘an open community,’ accepting of a homosexual lifestyle. Defendant responded that he ‘wanted to be F’ed.’ Darling replied ‘okay or yes, or some to that affirmative,’ and ‘gave Lanning every reason to believe that Darling was good to go.’ At that point, Defendant – who was facing Darling and standing approximately three to five feet away from him – turned around, took one or two steps backward towards Darling, and, with his left hand, reached back and ‘very briefly’ touched Darling’s fully-clothed crotch. Darling described the touch as ‘a fairly firm grasp’ that lasted ‘very briefly,’” until he could get the words out: “Police officer, you’re under arrest.”

Lanning was charged with “disorderly conduct” under a federal regulation adopted by the U.S. Interior Department to regulate conduct on federal park land.  The regulation provides that a person commits the offense of “disorderly conduct” if he “uses language, an utterance, or gesture, or engages in a display or act that is obscene, physically threatening or menacing, or done in a manner that is likely to inflict injury or incite an immediate breach of the peace.”

A magistrate judge sentenced Lanning to 15 days in prison, a $1000 fine, and a two-year ban on visiting any federal forests or parks. Lanning appealed to the district court, which found that the magistrate judge did not have authority to impose the two-year ban and returned the case to the magistrate for resentencing. The second time around, the magistrate sentenced Lanning to 15 days and a $500 fine, which the district court affirmed.

Lanning appealed to the 4th Circuit, claiming that the government failed to meet its burden of proving beyond a reasonable doubt that he had engaged in disorderly conduct.

First, the appeals court found that the word “obscene” as used in this regulation was “unconstitutionally vague as applied” because it “would not have provided him, or anyone of ordinary intelligence, fair warning that the complained-of conduct was obscene.” Consulting dictionaries for a definition of this term, which is not defined in the regulation, the court said that “under these circumstances, we cannot conclude that anyone ‘of ordinary intelligence’ would understand that such conduct is ‘morally repulsive’ or ‘offensively or grossly indecent’ or ‘lewd.’” Judge Wynn went on to observe that this case showed “the real risk that the provision may be ‘arbitrarily and discriminatorily enforced,’” because this sting operation “specifically targeted gay men. Perhaps not surprisingly, then, the all-male undercover rangers arrested only men on the basis of disorderly homosexual conduct. The impetus for the sting operation: citizen complaints. Darling testified that ‘the public was concerned’ about ‘male on male activity in that area that was targeted.’ Darling testified that every single one of the citizen complaints had been about homosexuals. It may be that gay men engage more frequently in sexual activity in the Blue Ridge Parkway and therefore generate more citizen complaints. Yet it is entirely plausible that the public in and around the Blue Ridge Parkway subjectively finds homosexual conduct, even relatively innocuous conduct such as that at issue here, particularly ‘morally repulsive’ and ‘grossly indecent,’ and therefore complains. If the public is, by contrast, not similarly troubled by a woman propositioning her boyfriend for sex and then briefly touching his clothed crotch, there would exist no citizen complaints and no related sting, even for otherwise identical heterosexual conduct. Simply enforcing the disorderly conduct regulation on the basis of citizen complaints therefore presents a real threat of anti-gay discrimination.”

Wynn said that the court’s holding was not that the regulation was unconstitutionally vague “per se,” but rather was vague as applied to these circumstances, contrasting another case in which a court rejected a vagueness challenge where the defendant was arrested while engaging in masturbation and fellatio in a national park, and stating complete agreement with that case. “The conduct at issue here, however,” he wrote, “is of a qualitatively different, significantly more benign nature. We do not believe that a reasonable defendant would know that by engaging in such conduct under the circumstances of this case, he would be subjecting himself to criminal liability. That, coupled with our serious concern regarding discriminatory enforcement, leads us to conclude that [the regulation] is unconstitutionally vague as applied and that the ‘obscene’ prong of the regulation therefore cannot serve as a basis for Defendant’s conviction.”

The court was similarly persuaded as to the other two prongs of the regulation.

As to the requirement that conduct be “physically threatening or menacing,” wrote Wynn, “it defies logic that Darling was shocked by Defendant’s touch when it was, in fact, precisely what Darling had been ‘stringing Defendant along’ to do – to cross a certain line’ so that he could arrest him. “Facts matter,” insisted Wynn. “Had Defendant and Darling engaged in flirtatious conversation that did not involve an agreement to have sex, a reasonable person might well have felt physically threatened or menaced” by Lanning’s actions. “Likewise, had Defendant pinned Darling down and attempted to remove Darling’s clothing, a reasonable person, even one who had consented to sex, might well have felt physically threatened or menaced by that conduct.” But that was not this case.

Turning to the requirement that defendant’s conduct was “done in a manner that is likely to inflict injury or incite an immediate breach of the peace,” the court was again unpersuaded, pointing out that “Darling approached Defendant and engaged in flirtatious conversation” and Darling agreed to Lanning’s proposition to have sex. “Only after Darling agreed to Defendant’s proposition did Defendant back up to Darling and briefly touch Darling’s clothed crotch, whereupon Darling arrested him.” Given these circumstances, wrote Wynn, Darling has “given Defendant ‘every reason to believe that’ Darling was ‘good to go.’” “ No rational trier of fact could thus conclude that Darling himself likely would react violently to Defendant’s fleeting touch,” wrote Wynn. “Further, if one were to take Darling’s real identity, i.e., that of an undercover ranger, into account, the government’s burden would be even greater, because a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.’” Remarking on the briefness of the encounter, Wynn speculated that even a member of the general public stumbling upon the scene would be unlikely to be provoked into a violent response.

Wynn was joined in his opinion by Circuit Judge Henry Franklin Floyd. Both judges in the majority were appointed to the court by President Obama.

The dissenter, Allyson Kay Duncan, was appointed by George W. Bush. She accused the majority of failing to accord “the level of deference to the magistrate judge’s findings of fact required by our standard of review. I believe that a rational trier of fact could have found a physical touching such as this implying an immediate intent to engage in sexual activity in public both obscene and physically threatening or menacing within the meaning” of the regulation. However, she did not expand on these remarks to justify her conclusion.