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Trump Administration’s 11th Hour Attempt to Restrict Refugee Claims Blocked by Federal Court

Posted on: January 9th, 2021 by Art Leonard No Comments

The Trump Administration’s last-minute rulemaking on refugee law hit a roadblock on January 8 when a federal district court in San Francisco granted a request from organizations that represent refugees to issue a nation-wide preliminary injunction that will stop the rule from going into effect as scheduled on January 11.  District Judge James Donato found that the plaintiffs are likely to prevail on their claim that “Acting” Secretary Chad Wolf of the Department of Homeland Security (DHS) did not have the authority to approve the rule because he was not validly appointed to that position.  The court will schedule a hearing soon to consider the plaintiffs’ further argument that the rule violates the Administrative Procedure Act and is inconsistent with federal immigration statutes and treaty obligations.  Pangea Legal Services v. U.S. Dept. of Homeland Security, No. 20-cv-09253-JD; Immigration Equality v. U.S. Dept. of Homeland Security, No. 20-cv-09258-JD.

The federal Immigration and Nationality Act authorizes asylum in the United States for any foreign national found to be a “refugee,” which includes any person who cannot return to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”  Determining who qualifies as a refugee is up to the Secretary of Homeland Security or the Attorney General.  During the Clinton Administration, Attorney General Janet Reno formally signified that people who suffered persecution on account of their sexual orientation could be considered members of a “particular social group” and since then many LGBTQ people have been awarded asylum in the United States, which allows them to live and work here, to travel abroad and to return.  Those who do not qualify for asylum may avoid being removed from the U.S. by showing that their “life or freedom would be threatened” in their home country “because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion,” a status referred to as “withholding of removal.”

In addition, the United States is a party to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  No party to the treaty “shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subject to torture.”  In some cases, LGBT petitioners have been able to claim protection under this Treaty due to the severe mistreatment of LGBTQ people in their home countries.

As part of its general policy of reducing the flow of people from other countries into the United States, the Trump Administration has promulgated a variety of policies formally approved by Chad Wolf, all of which are under attack in the courts.  Last June 15, DHS and the Justice Department published a notice of proposed rulemaking in the Federal Register, purporting to establish new rules intended to “streamline” the process of dealing with refugee applicants.  As usual with this Administration, “streamline” is a euphemism for sharply restricting the ability of people to qualify as refugees.

Most harmful for LGBTQ applicants is that the rule would eliminate all gender-based refugee claims, would drastically tighten the list of circumstances under which somebody who came to the U.S. without a visa issued by the State Department could claim refugee status and seek to remain here, and would apparently do away with the class of situations where the persecution is perpetrated by non-governmental actors.  Despite the complexity of the proposed rules, which took up 43 pages of small-type text in the Federal Register, only 30 days were given for public comment.  Judge Donato notes that over 87,000 comments were submitted “and they overwhelmingly opposed the proposed rule, often with detailed reasoning and analysis.”

Despite the flood of adverse comments, DHS and DOJ published a final rule in the Federal Register on December 11 that is “substantially the same” as the June 15 proposed rule, and set it to go into effect in one month.  The plaintiffs in this case promptly filed their lawsuits, two of which are combined before Judge Donato.  Immigration Equality, an LGBT rights organization, is one of the lead plaintiffs, with Lambda Legal and private attorneys helping to litigate the case.  The plaintiffs promptly filed a motion to stop the new rule from going into effect while the litigation proceeds.

In granting the motion, Judge Donato described the odd way the Trump Administration failed to comply with established procedures for designating the Secretary of DHS.  By statute, the DHS Secretary is to be nominated by the President and confirmed by the Senate, but the last person confirmed by the Senate, Kirstjen Nielsen, resigned effective April 10, 2019, and no new Secretary has been confirmed.  Under existing rules, Christopher Krebs, the Director of Cyber Security and Infrastructure Security, was supposed to become “Acting Secretary” and the President was to send the Senate a nomination for a new Secretary to be confirmed.  Trump has frequently stated his preference for “Acting” people to head agencies so he could quickly fire them if necessary.  Trump tweeted out a statement bypassing the usual procedures, stating that Kevin McAleenan, the Commissioner of Customs and Border Protection, would be the “Acting Secretary.”  Since this was not in accord with the succession plan spelled out in a 2016 Executive Order, McAleenan’s appointment was arguably not valid.  McAleenan then adopted a succession plan in November 2019 that effectively made Chad Wolf his successor when McAleenan resigned.  Since McAleenan was not legally in his position, he did not have the authority to do this, so Wolf’s appointment is also likely invalid.

Since a new regulation requires the approval of the Secretary and there is no validly appointed Secretary of DHS, the plaintiffs have a strong argument that the regulation was not validly promulgated and cannot take effect.  At least, Judge Donato concluded, they are likely to prevail on this point when the court reaches the merits of the case.  For purposes of deciding on issuing the preliminary injunction that is all he had to decide, putting off to later the plaintiffs’ argument that the regulation is inconsistent with the statute and the country’s treaty obligation.

Judge Donato was scathing in describing the Justice Department’s attempt to justify Wolf’s authority in the face of four previous adverse decisions by federal courts.  The government filed appeals of three of those rulings but withdrew two of the appeals and one is still pending.  “This Court is now the fifth federal court to be asked to plow the same ground about Wolf’s authority vel non to change the immigration regulations,” he commented.  “If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise.  It did not.”  To the judge’s apparent astonishment, the government’s attorney at the hearing on this motion, August Flentje, just argued that the prior court rulings were “wrong, with scant explanation,” which Donato characterized as a “troubling strategy.  In effect, the government keeps crashing the same car into the gate, hoping that someday it might break through.”

“A good argument might be made, at this point in time, the government’s arguments lack a good-faith basis in law or fact,” continued Donato, but he concluded it was unnecessary for him to make such a drastic finding, since his own review of the record indicates that “the latest decision before this order correctly identified and analyzed the salient points vitiating Wolf’s claim of rulemaking authority, and the Court agrees with it in full.”

This case shows the Trump Administration’s general contempt for the federal judiciary, especially (but not only) when a judge appointed by President Barack Obama (such as Judge Donato) is hearing the case.  Judge Donato found that letting the rule go into effect would irreparably harm the plaintiff organizations in their missions to represent asylum seekers, and that the balance of hardship between the plaintiffs, the government, and the public interest all tilted in favor of issuing the injunction.

Once a final regulation has been published in the Federal Register, it cannot be simply withdrawn by the next Administration, but this preliminary injunction will give breathing room for the Biden Administration’s incoming DHS and DOJ leadership to put the wheels in motion under the Administrative Procedure Act to terminate or replace it, if the court doesn’t dispose of it first by issuing a final ruling on the merits that it was invalidly promulgated.  Issuing the preliminary injunction was a promising first step.

Among the attorneys working on the case are Immigration Equality Legal Director Bridget Crawford and Executive Director Aaron Morris, Lambda Legal attorneys Jennifer C. Pizer, Omar Gonzalez-Pagan and Richard Saenz, and cooperating attorneys Jeffrey S. Trachtman, Aaron M. Frankel, Chase Mechanik, Jason M. Moff and Austin Manes from the law firm Kramer Levin Naftalis & Frankel LLP.

Federal Court Issues Preliminary Injunction against Trump’s Anti-Diversity Training Executive Order

Posted on: December 23rd, 2020 by Art Leonard No Comments

A federal court in San Jose, California, issued a preliminary injunction on December 22 against enforcement of two key provisions of President Donald Trump’s Executive Order 13950, which prohibits the Defense Department, civilian federal agencies, federal contractors and grant recipients from carrying out diversity and inclusion training programs that include concepts offensive to President Trump. District Judge Beth Labson Freeman found that the plaintiffs, a group of LGBT and AIDS organizations that provide such training to their staffs and to other organizations, had standing to challenge the portions of the Order that are applicable to their activities on 1st and 5th Amendment grounds and were sufficiently likely to be successful that they were entitled to a preliminary injunction while the case is pending.  Santa Cruz Lesbian and Gay Community Center v. Trump, Case No. 20-cv-07741-BLF (N.D. Cal., San Jose Div., Dec. 22, 2020).
Trump signed his Executive Order on September 22, a few weeks after the federal Office of Management & Budget (OMB) had issued a similar memorandum to federal agencies on “Training in the Government,” warning against agencies conducting diversity training that includes concepts that Trump had disapproved in a prior internal executive branch directive. The memo described as “divisive, un-American propaganda training sessions” any activities that would relate to such subjects as “critical race theory,” “white privilege,” or any suggestion that the U.S. is “an inherently racist or evil country.” In short, the memo, and the subsequent Executive Order, paints a cartoonish and exaggerated picture of the kind of diversity training sessions that have become widespread through both the private and public sectors in recent years, responding to an expanding professional literature about unconscious bias and implicit racism and sexism.
The Executive Order targets diversity training in the armed forces (section 3), in civilian federal agencies (section 6), in organizations that have contracts with the federal government (section 4), and in organizations that receive grants from the federal government to carry out programs (section 5). The Order seeks to censor the content of such training programs, even if they are not specifically funded by the federal government or are not the subject matter of a federal contract or grant, as long as they are conducted by organizations that have federal contracts or receive federal grants. OMB issued a memorandum on September 28 detailing how the Order would be enforced.
Within weeks of Trump signing the Order, organizations theoretically affected by the ban started to cancel diversity programs, some of which were provided by some of the organizations that are among the plaintiffs in this lawsuit filed by Lambda Legal and cooperating attorneys from the law firm Ropes & Gray. Some individual consultants who provide diversity training services also reported cancellation of programs for which they were contracted.
The lead plaintiff is the Santa Cruz Lesbian and Gay Community Center, which also operates under the name “Diversity Center of Santa Cruz.” Other organizational plaintiffs include the Los Angeles LGBT Center, The AIDS Foundation of Chicago, the Bradbury-Sullivan LGBT Community Center in Lehigh Valley, Pennsylvania, the NO/AIDS Task Force in New Orleans, and SAGE (headquartered in New York). The government’s initial response to the lawsuit was to deny that the plaintiffs had “standing” to sue, or that any of their constitutional rights were threatened or violated. Among other things, the government argued that the 1st Amendment does not restrict it from deciding how federal money will be spent or the content of training offered to federal employees.
Turning to standing, it quickly became clear to the court and the parties that the plaintiffs, all private sector organizations, could most easily satisfy standing requirements to challenge sections 4 and 5, dealing with contractors and grant recipients, because all the organizational plaintiffs either have federal contracts or receive federal grants. Indeed, for some of them a majority of their funding comes from the federal government, and the court found that the possibility that the restrictions in the EO will be enforced against them are not merely hypothetical, given the enforcement directives of the OMB memo and the cancellation of programs that have already occurred because presenting organizations feared losing federal contracts or funding.
The court also found that despite some lack of clarity in the Order about what could or could not be included in training programs, because of the vague and convoluted language (which is typical of Trump Administration executive orders), it was very likely that the plaintiffs would be targeted for enforcement because of the content of their training programs.
“The September 28 Memorandum issued by the OMB Director specifically directs agencies to identify entities that promote the prohibited “divisive concepts” by doing keyword searches for the terms “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” “positionality,” “racial humility,” and “unconscious bias,” wrote Judge Freeman. “As Plaintiffs’ counsel commented at the hearing, these keyword searches may as well have been designed to target Plaintiffs.”
Having established standing concerning sections 4 and 5, the court turned to the four-part test for preliminary relief: likelihood of success on the merits, irreparable harm to plaintiffs if the injunction is not issued, balance of the equities as between the plaintiffs and the government, and the public interest. The court found that all four tests are satisfied.
The Supreme Court’s decisions on similar claims have engaged in difficult line-drawing between the degree to which the government can control the speech of contractors and grantees and the degree to which they retain freedom of speech with respect to issues of public concern. Opposing the motion, the government claimed that it was within its rights to impose these restrictions, but Judge Freeman found that the plaintiffs’ training programs were entitled to 1st Amendment protection, especially when it came to training they did of their own employees as part of their goal to provide appropriate non-discriminatory service to their clients. The Order seeks to control that, even when the federal contract has nothing to do directly with diversity training, likewise with grantees. Furthermore, the training directly involves matters of public interest and concern.
“Although the Government has a legitimate interest in controlling the scope of diversity training in the federal workforce and can limit the expenditure of federal funds,” wrote Judge Freeman, “that interest can be protected by narrowing the scope of this preliminary injunction. Thus, the Government’s interest is outweighed by the effect of the impermissible reach of the Executive Order on Plaintiff’s freedom to deliver the diversity training and advocacy they deem necessary to train their own employees and the service providers in the communities in which they work, using funds unrelated to the federal contract.”
Several major research universities submitted an amicus brief in support of plaintiffs, pointing out how the section 5 restrictions “appear to require universities that accept federal grants to curtail promotion of these concepts through teaching, training and discussion. The 8 Institutions of Higher Education argue persuasively that “scholars need to be able to give voice to, and indeed ‘endorse,’ opposing views in order for intellectual progress to occur. The Order inhibits this advancement – which is a core component of amici’s missions.”” The court saw in the OMB memorandum that the implementation directive was aimed at “actually imposing the condition on as many grant programs as possible,” presenting a clear threat to freedom of speech in the academic setting.
As to the Due Process claim, the language of the EO and the OMB memorandum, while specific in some respects, was vague in others, so that a contractor or grantee might have difficulty determining whether particular subjects in their diversity training programs were covered by the Order. The court found that an FAQ section in the OMB Memo made the ambiguity even worse. “In conclusion,” wrote Freeman, “the Court finds wholly unpersuasive the Government’s assertions that Sections 4 and 5 of the Executive Order are clear or that any ambiguities may be easily resolved,” so plaintiffs were likely to succeed in showing that those sections are void for vagueness in violation of the Due Process Clause of the 5th Amendment.
Furthermore, the chilling of 1st Amendment rights is generally deemed to be an “irreparable injury” by the federal courts, and the protection of 1st Amendment rights is generally deemed to be within the public interest, so the court concluded that the tests for preliminary injunctive relief had been satisfied, and that narrowing the scope of the injunction to Sections 4 and 5 was sufficient to meeting the Government’s objection. The court accepted the plaintiffs’ argument that only a nationwide injunction would suffice, given the geographical diversity of the co-plaintiffs and the scope of their training activities, which were certainly not confined to the northern California counties within the judicial district of the court. Similarly, Judge Freeman rejected the argument that injunctive relief should be limited to the plaintiff organizations and individuals, and noted that the plaintiffs had not asked for the injunction to run personally against the lead defendant, one Donald J. Trump, but rather against the government agencies that would enforce the Order.
If the Trump Administration follows its usual course, it will seek a stay of the injunction from the court while it appeals to the 9th Circuit. But perhaps, since the Trump Administration has only a month to go, it may not bother to seek immediate review.

Federal Court Says Ohio Must Let Transgender People Correct Their Birth Certificates

Posted on: December 17th, 2020 by Art Leonard No Comments

U.S. District Judge Michael H. Watson ruled on December 16 that Ohio’s refusal to issue corrected birth certificates for transgender people violates the United States Constitution.  Lambda Legal and the American Civil Liberties Union sued state officials on behalf of four transgender plaintiffs whose attempts to get their birth certificates changed to correctly identify their gender had been thwarted.  Ray v. McCloud, Case No. 2:18-cv-272 (S.D. Ohio).

At the time Lambda sued two years ago, there were only three states that categorically prohibited such changes: Kansas, Ohio and Tennessee.  Since then, Kansas has settled a Lambda Legal lawsuit by agreeing to change its policy.  That leaves Tennessee as the last holdout.

However, Judge Watson’s opinion did not address what requirements Ohio may impose to determine whether a particular transgender individual may obtain a new birth certificate correctly reflecting their gender identity.  Some jurisdictions require proof of surgical alteration or at least some clinical treatment, some others are satisfied with a doctor’s attestation as to gender identity, and some will accept a sworn declaration by the individual as to their correct gender identity.  All that the judge held in this case was that the state cannot categorically refuse to make such changes under any circumstances.

This issue has had an inconsistent history in Ohio.   State courts had turned down attempts by transgender individuals to get court orders to change their birth certificates for many years, but then the state did a turnabout and started allowing them until 2016, when it reverted to its former prohibition.  Judge Watson noted that at least ten transgender people had actually obtained new birth certificates before the policy was changed.  Since the statute governing birth certificates in Ohio does not even mention the issue but generally provides that a birth certificate can be corrected if information “has not been properly or accurately recorded,” the state claimed that it was now acting according to its interpretation of the statute as requiring a record that was correct at the time of birth.

Lambda’s complaint on behalf of Stacie Ray, Basil Argento, Ashley Breda and “Jane Doe” asserted that the state’s policy violated their Due Process privacy rights and their Equal Protection rights under the 14th Amendment, as well as their Free Speech rights under the 1st Amendment.  Having ruled in favor of the plaintiffs on their 14th Amendment claims, Judge Watson commented in a footnote that he would decline to analyze their 1st Amendment claim.

At an earlier stage in the litigation, the court had refused to dismiss the case outright.  The December 16 ruling granted summary judgment to the plaintiffs based on the evidentiary record.  Each of the plaintiffs had explained how having a birth certificate that did not correctly reflect their gender identity caused practical problems for them, essentially misgendering them and “outing” them as transgender when they were required to provide their birth certificate.  The court also noted the significant risk of harassment and physical violence that transgender people face as an important reason to allow them to obtain birth certificates that identify them correctly, citing a 2015 U.S. Transgender Survey showing that almost one-third of transgender individuals who had to use an identity document that misgendered them consequently suffered harassment, denial of benefits or services, discrimination, or physical assault.

The court found that because the fundamental right of privacy was involved, the standard of review for their Due Process claim is “strict scrutiny,” under which the state’s policy would be presumed to be unconstitutional unless it met the burden of showing a compelling justification.  On the equal protection claim, Judge Watson found that many federal courts now agree that heightened scrutiny applies, under which the state must show an exceedingly persuasive reason for its policy.  Courts use heightened scrutiny for sex discrimination claims, arguably making relevant the Supreme Court’s Bostock decision earlier this year, which held that discrimination because of transgender status is sex discrimination within the meaning of the federal anti-discrimination law, Title VII.

Either way, however, the court concluded that the policy must fall, because the state’s arguments didn’t even support a “rational basis” for what it was doing.  Having allowed transgender people to get new birth certificates in the past, the state should have articulated a reason why it had changed that policy, but it could not credibly do so.  What the court left unstated was the likelihood that the change in policy was entirely political.

The state’s attempt to argue that its interest in having accurate birth records required this categorical policy was fatally undermined by the fact that changes to birth certificates are made in many other circumstances.  A person who gets a legal name change can get a new birth certificate showing their new legal name.  After an adoption, a new birth certificate can be issued listing the adoptive parents instead of the birth parents.  The court found that no persuasive justification had been offered for freely changing the information on birth certificates in these other circumstances but not for transgender people, especially in light of the difficulty and harm they suffered.

As noted, however, the court’s ruling was limited to the categorical ban, leaving yet to be determined the criteria Ohio was adopt for determining whether the change can be made in a particular case.  Furthermore, the state could attempt to appeal this ruling to the 6th Circuit Court of Appeals, but that court has already gone on record regarding gender identity discrimination as a form of sex discrimination in the case of the late Michigan transgender funeral director Aimee Stephens, who employment discrimination case was part of the Bostock decision by the Supreme Court.

Lambda Legal attorneys who worked on this case include Kara Ingelhart and Peter Renn.  Malita Picasso and John Knight of the ACLU’s LGBT Rights Project and Freda Levenson, Susan Becker, Elizabeth Bonham and David Carey of the ACLU of Ohio were co-counsel, as well as pro bono counsel Jennifer Roach from Thompson Hine LLP.

 

Federal Court Orders State Department to Recognize Birthright Citizenship of Child Born Overseas to Married Gay Male Couple Through Gestational Surrogacy

Posted on: August 29th, 2020 by Art Leonard No Comments

A U.S. District Judge in Georgia issued a ruling on August 27 that a married male couple’s daughter, conceived through donor insemination from a donated egg with an English woman serving as gestational surrogate, should be deemed a natural-born U.S. citizen and entitled to a passport over the objections of the State Department.  The complication in this case is that the spouse whose sperm was used was not a U.S. citizen at the time, although he since has become one through the marriage to his native-born U.S. citizen husband.

If this sounds familiar, it is because the case of Mize v. Pompeo, 2020 WL 5059253, 2020 U.S. Dist. LEXIS 156121 (N.D. Ga., Aug. 27, 2020), presents issues similar to those in Kiviti v. Pompeo, 2020 WL 3268221 (D. Md. June 17, 2020), decided a few months earlier by a federal court in Maryland, which also ordered the State Department to recognize the birthright citizenship of the child of a married gay couple.

This is a recurring problem encountered by married gay male couples who use a foreign surrogate to have their child overseas.

Under the 14th Amendment of the Constitution, all persons born in the United States are citizens at birth, regardless of the nationality or citizenship status of their parents.  By statute and court decision, the only people born in the U.S. who are not citizens at birth are children born to foreign diplomats stationed in the U.S. or temporary tourist or business visitors.  The citizenship of children born overseas to U.S. citizens is determined by a statute, the Immigration and Nationality Act (INA).

Under the INA, there is a crucial distinction depending whether the child’s U.S. citizen parents are married to each other when the child is born.  One provision concerns the overseas children of married U.S. citizens, and a different provision applies if the children are born “out of wedlock.”  As interpreted by the State Department, if the parents are married, the child is a birthright citizen so long as it is biologically related to one of them.  If the parents are not married, at least one them who is biologically related to the child must be a United States citizen who has resided in the U.S. for at least five years.

In this case, James Mize, a native-born U.S. citizen, and Jonathan Gregg, a British native, met when Gregg moved to the U.S. in 2014 and they subsequently married.  They then decided to have a child together, and a British woman who was a friend of the couple agreed to be the gestational surrogate.  They obtained an anonymously donated egg which was fertilized in vitro with Jonathan’s sperm, implanted in their friend, who bore the child in England in 2018.  The local authorities issued a birth certificate recognizing the two men as the parents of the child, identified in court papers as SM-G.  The men had moved to England before the child was conceived.  After she was born, they applied for a U.S. passport and citizenship declaration, but the State Department refused to provide it.  The Department treated the child as if she was born out of wedlock, since her biological parents were not married to each other, and found that her biological father, Gregg, had not resided in the United States as a citizen long enough to confer birthright citizenship on her.  Mize is not her biological parent, so the Department was unwilling to recognize birthright citizenship based on Mize’s natural-born citizenship status.

These rules have proved to be a recurring issue for gay male couples who go out of the country to have children through surrogacy, as it has generated several lawsuits, and the State Department, while losing individual cases, has not modified its interpretation of the statute. Unsurprisingly, the Trump Administration has filed appeals of prior cases and there is no definite appellate interpretation yet.

Mize and Gregg sued the State Department, claiming that the denial of the passport and citizenship declaration for their daughter violated their 5th Amendment constitutional rights, violated the INA, and also violated the Administrative Procedure Act.

Meanwhile, however, because of the citizenship status eventually acquired by Gregg through his marriage to Mize, their daughter ultimately acquired naturalized citizenship as the minor child of a naturalized citizen while this case was pending, and is living with the couple in Georgia.  In addition to refusing to change its interpretation of the INA and moving for summary judgment as to that, the State Department also suggested that the case should be dismissed as moot, since the child now has a U.S. passport as a “naturalized” citizen by derivation from her biological father.

U.S. District Judge Michael Brown rejected the mootness argument before turning to the merits of the case in his August 27 opinion.  He said that the dignitary harm suffered by the men in their marriage being deemed irrelevant for the purpose of their daughter’s citizenship status at birth kept this case from being moot.

On the merits, Judge Brown pointed out that as a matter of constitutional law, under the Supreme Court’s decisions in Obergefell v. Hodges in 2015 and Pavan v. Smith in 2017, same-sex marriages are supposed to be treated the same as opposite sex marriages for all purposes of law.  They are entitled to the same rights and have the same responsibilities. However, if the INA can be interpreted to treat their daughter as a child “of the marriage,” then the provision concerning the children of married U.S. citizens would apply and there would be no requirement that the child be biologically related to both parents to be a birthright citizen, and the court would not have to address the constitutional issues.

Judge Brown found that the INA does not define what a child “of the marriage” is, leaving an ambiguity because the statutory language can be interpreted in more than one way.  If the language is interpreted as the State Department insists, he found that would raise constitutional issues under the 5th Amendment.   Federal courts apply a doctrine of “constitutional avoidance.”  They avoid having to decide questions about the constitutionality of a statute or its interpretation by the government if there is a reasonable way to interpret the statutory language to make the constitutional issues go away.

In this case, Judge Brown, in line with several prior district court decisions, concluded that such an interpretation is possible.  The Mize-Gregg marriage is valid and must be recognized by the State Department, and the process by which Mize and Gregg decided to have a child through gestational surrogacy and carried out their plan supports the argument that SM-G is a child “of” their marriage in a practical sense.  Thus, the court concluded, she was not born “out of wedlock,” and the requirement that she be biologically related to as U.S. parent with sufficient duration of residency under the “out of wedlock” provision would not apply.

Judge Brown granted summary judgment to Mize and Gregg as a matter of statutory interpretation, rendering it unnecessary to decide the constitutional questions, and he ordered the State Department to issue the documents for which the men had applied.  He dismissed the Administrative Procedure Act claim as moot.

The State Department could decide to appeal this ruling, which would be consistent with the Trump Administration’s general tendency to fall in line with efforts by Christian conservatives to chip away at the legal status of same-sex marriages.  Unsurprisingly, the Department filed an appeal of the Kiviti decision in the 4th Circuit Court of Appeals on August 14, but in the normal course of things that appeal will probably not be argued for several months and a decision would be unlikely until sometime next year at the earliest.  Meanwhile, the Trump Administration could consistently file an appeal in this case to “protect” its position about how to interpret the statute.

If Joe Biden is elected president, it is possible that the State Department would decide to protect the rights of same-sex couples and their children by revising the Foreign Affairs Manual to adopt an interpretation consistent with  the court’s rulings for the guidance of U.S. consulates and embassies that receive these sorts of applications when children are born to U.S. citizens overseas.

Immigration Equality and Lambda Legal are representing Mize and Gregg, as they are also representing the plaintiffs in the Kiviti case.

North Carolina Federal Court Refuses to Dismiss Challenge to North Carolina’s Exclusion of Coverage for Gender Transition from State Employee Medical Plan

Posted on: April 5th, 2020 by Art Leonard No Comments

On March 11, U.S District Judge Loretta C. Biggs denied the state’s motion to dismiss a lawsuit brought by Lambda Legal claiming that the State Health Plan’s categorical exclusion of coverage for treatment sought “in conjunction with proposed gender transformation” or “in connection with sex changes or modifications” violates the Equal Protection Clause, Title IX, and Section 1557 of the Affordable Care Act (ACA). Kadel v. Folwell, 2020 WL 1169271, 2020 U.S. Dist. LEXIS 42586 (M.D.N.C.). The state university defendants had moved to dismiss the Title IX claim, and the State Health Plan defendants had moved to dismiss the Equal Protection and ACA claims. The plaintiffs are all current or former employees of the university defendants, or dependents of university employees, which were all enrolled in the Plan and are the parents of transgender individuals who have been diagnosed with gender dysphoria and are seeking treatment that is categorically excluded from coverage under the Plan.

The plaintiffs jointly allege that since the 1980s the Health Plan covering employees of the state university and their dependents has denied coverage for medically necessary treatment if the need stems from gender dysphoria, as opposed to some other condition. Thus, a cisgender woman’s medically necessary mastectomy would be covered, but a transgender man’s mastectomy for purpose of gender transition would not be covered. With the exception of 2017, this exclusionary policy has been in effect. Third party administrators retained by the employers to administer the plans – Blue Cross Blue Shield of North Carolina (claims administrator) and CBS Caremark (pharmaceuticals) – sell this kind of coverage to other employers, this it would be possible for the state to include such coverage using their current administrators, who are experienced in dealing with such claims.

The statutory causes of action (Title IX and ACA) would require the court to conclude that discrimination because of gender identity is covered under the statutory prohibition of sex discrimination, while the constitutional claim would require a finding that gender identity discrimination claims are actionable under the Equal Protection Clause of the 14th Amendment.

Judge Biggs turned first to the statutory claims in her analysis. She first rejected the state university’s claim that the suit should not be against them, because the state government dictates the content of their employee benefits plans. She found that the defendants “offer” the plan to plaintiffs, and “participate” (or participated) in its availability. “Indeed,” she wrote, “had University Defendants not hired Plaintiffs, they would not have been permitted to enroll in the Plan at all. The Court finds, at this stage, those facts provide a sufficient nexus between the alleged injuries the University Defendants.” Also, responding to the University’s argument that a ruling against them would not redress the plaintiffs’ claims because the defendants are bound by state policy, Biggs wrote that “there are other wahys in which a favorable ruling on Plaintiffs’ Title IX claim could give them the relief they seek. First, Plaintiffs have asked for – and ‘personally would benefit in a tangible way’ from – an award of damages.” Further, she noted, the university defendants might offer supplemental coverage beyond what the state Plan provides. She also rejected defendant’s arguments that since some of the Plaintiffs are not themselves transgender, their injuries are only indirect, because the minor plaintiffs’ “only ties” to the university are through their parents’ employment. Judge Biggs found that the parents were in this case within the class of plaintiffs protected by Title IX.

Turning to the argument that gender identity claims are not cognizable under Title IX, Biggs took note of the fact that the Supreme Court was considering whether Title VII covers gender identity discrimination claims in R.G. & G.R. Harris Funeral Homes v. EEOC, No. 18-107, which was argued on October 8, 2019, and had not been decided yet. The defendants argued that this case should be put “on hold” until a Supreme Court ruling was issued. “Because courts in this circuit often look to Title VII when construing like terms in Title IX,” she noted, “the Supreme Court’s decision could potentially impact the viability of the Title IX claim in this case. At this time, however, this Court is left to make its own determination as to whether discrimination ‘on the basis of sex’ encompasses discrimination on the basis of transgender status,” and she noted Grimm v. Gloucester County School Board, 302 F. Supp. 3d 730 (E.D. Va. 2018) and M.A.B. v. Board of Education of Talbot City, 286 F. Supp. 3d 704 (D. Md. 2918), in which other district courts also within the 4th Circuit have ruled that such claims are covered by Title IX. Biggs wrote that she “agrees with their reasoning and follows it here.” She also noted that some other district courts in other circuits have faced similar arguments challenging transgender exclusions under state employee benefit plans, and have ruled against the employing states in those cases.

“University Defendants do not seriously contest that discrimination because of transgender status is discrimination because of sex (although State Defendants do),” she wrote. “Rather, in moving to dismiss for failure to state a claim, they simply rephrase their arguments related to standing. There is no dispute that ‘a recipient of federal funds may be liable in damages under Title IX only for its own misconduct; the parties just disagree over whether University Defendants’ conduct is sufficiently implicated in this case.” Biggs held that “at this stage” in the litigation, the plaintiffs’ allegations concerning the university defendants’ role in providing benefits to their employees are sufficient both for standing and for the Title IX claim, and denied the motion to dismiss the Title IX claim.

Turning to the ACA claim, the state defendants argued sovereign immunity. “Section 1557 does not purport to condition a state’s acceptance of federal funding on a waiver of sovereign immunity,” she wrote. “Nor does any other provision of the ACA. However, in the Civil Rights Remedies Equalization Act of 1986 (CREA), Congress explicitly stated that a state shall not be immune from suit in federal court ‘for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal assistance.” The 4th Circuit found clear congressional intent to waive the state’s sovereign immunity if they accepted money in programs that prohibit discrimination. The state’s response was that the lack of mention of gender identity or transgender status in Section 1557 shows that North Carolina did not “knowingly” waive its sovereign immunity with respect to discrimination claims on these bases. Disagreeing, Biggs wrote that the state’s potential exposure to such suits should not have been “surprising,” because “courts across the country have acknowledged for decades that sex discrimination can encompass discrimination against transgender plaintiffs. Further, as a general matter, ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,’” citing Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1999). She asserted that surely the state would agree that Title IX covers sexual harassment claims, even though the word “harassment” does not appear in the statute. “By the same token, Section 1557 need not include the precise phrasing State Defendants demand to provide sufficient notice of a condition of waiver.”

Turning to the constitutional claim, asserted against specific state officials in their official capacity, she found convincing the case law supporting heightened scrutiny for gender identity discrimination claims as being essentially sex discrimination claims. “On its face,” she wrote, “the Exclusion bars coverage for ‘treatment in conjunction with proposed gender transformation’ and ‘sex changes or modifications.’ The characteristics of sex and gender are directly implicated; it is impossible to refer to the Exclusion without referring to them. State Defendants attempt to frame the Exclusion as one focused on ‘medical diagnoses, not . . . gender.’ However, the diagnosis at issue – gender dysphoria – only results from a discrepancy between assigned sex and gender identity. In short, the Exclusion facially discriminates on the basis of gender, and heightened scrutiny applies.” And, quoting from United States v. Virginia, 518 U.S. 515 (1996), she wrote, “A policy that classifies on the basis of gender violates the Equal Protection Clause unless the state can provide an ‘exceedingly persuasive justification’ for the classification.” [Thank-you, Justice Ginsburg!] Judge Biggs found that at this stage in the litigation, “State Defendants have failed to satisfy this demanding standard” and, in fact, “the only justification presented thus far is that the Exclusion ‘saves money.’ Under ordinary rational basis review, that could potentially be enough to thwart Plaintiffs’ claim. However, when heightened scrutiny applies, ‘a State may not protect the public fisc by drawing an invidious distinction between classes of its citizens,’” quoting from Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974).

Next, Judge Biggs rejected the state defendants’ argument as a ground for dismissal the plaintiffs’ failure to join the Health Plan’s Board of Trustees as a required party, as they would have to vote to make any change in the Plan that would be required to repeal the Exclusion. She found that the state defendants “share primary responsibility for the operation and administration of the Plan” so an award of declaratory, injunctive and monetary remedies against them would “give plaintiffs all the relief they seek.”

Finally, rejecting defendants’ request that the action be stayed pending the Supreme Court’s ruling in Harris Funeral Homes, Judge Biggs pointed out that “the potential harm to Plaintiffs resulting from even a mild delay is significant, as they will continue to be denied healthcare coverage for medically necessary procedures. In contrast, the ‘harm’ to Defendants of not staying this case appears to be nothing more than the inconvenience of having to begin discovery.” This is obvious. Since discovery hasn’t begun yet, there is no chance this case would be ready for a motion for summary judgment for many months, and the Supreme Court will likely rule in Harris by the end of June. “Judicial economy is, of course, a consideration,” wrote Biggs. However, this case is in its infancy, and it may be months before a decision issued in Harris – a substantial delay for those seeking to vindicate their civil rights. Given the ongoing harm to Plaintiffs and Defendants’ failure to present ‘clear and convincing circumstances’ outweighing that harm, this Court declines to exercise its discretion to stay the proceedings.”

Thus, pending motions to dismiss are all denied. As of the end of March, the defendants had not petitioned the 4th Circuit for a stay.

Counsel for plaintiffs include Deepika H. Ravi, of Harris, Wiltshire & Grannis LLP, Washington, DC; Meredith T. Brown and Tara L. Borelli, Lambda Legal Defense And Education Fund, Inc., Atlanta, GA; Noah E. Lewis, of Transgender Legal Defense & Education Fund, Inc.; Omar F. Gonzalez-Pagan, Lambda Legal Defense And Education Fund, Inc., New York, NY; and Amy E. Richardson, Wiltshire & Grannis LLP, Raleigh, NC (local counsel).

Alaska Federal Court Says Employer’s Denial of Insurance Coverage for Sex-Reassignment Surgery Violates Federal Law

Posted on: March 10th, 2020 by Art Leonard No Comments

A federal district court in Anchorage, Alaska, has ruled that a public employer’s health benefits plan violates Title VII of the Civil Rights Act of 1964 because it categorically denies to employees, whether male or female, coverage for the surgical procedures used to effect gender transition.  According to the March 6 opinion by Senior U.S. District Judge H. Russel Holland, the employer’s exclusion of this coverage is “discriminatory on its face and is direct evidence of sex discrimination.”  The ruling does not require all employers to provide coverage for gender reassignment surgery, but it requires that they not discriminate because of an employee’s sex in deciding which procedures are covered.

Judge Holland’s decision has potentially wide application because Title VII applies to all employers with 15 or more employees, including both businesses and government employers at the federal, state and local levels.  Although a trial court ruling is not a precedent binding on other courts, Judge Holland’s explanation for his ruling may provide a persuasive precedent both for courts confronting similar claims and for employers deciding how to respond to employees seeking such coverage under their employee benefit plans.

Lambda Legal filed suit on behalf of Jennifer Fletcher, who works as a legislative librarian for the State of Alaska.  Fletcher is enrolled in AlaskaCare, a self-funded employee health care plan that is administered by Aetna Life Insurance Company.  The Plan “provides benefits for medical services and procedures that are medically necessary and not otherwise excluded from the Plan,” according to the State’s written responses to discovery questions posed by Fletcher’s attorney from Lambda Legal, Tara L. Borelli.

During discovery in this case, the State conceded that for “some” transgender individuals, surgical procedures for gender transition may be “medically necessary,” but the plan formally excludes performance of the procedures in question for that purpose.  The procedures in question are covered for employees if they are necessary to address a medical issue other than gender transition.  None of the procedures at issue in this case are used solely in connection with gender transition.

Fletcher was diagnosed with gender dysphoria in 2014 and began the process of social, legal, and medical transition under professional care, starting hormone therapy that year.  By 2016, she and her health care provider agreed that gender transition-related surgery was necessary for her transition.  In her complaint, Fletcher claimed that such treatment was “essential” for her “well-being.”

In November 2016, Fletcher contacted Aetna to discuss coverage for her surgical treatment, but was told that the Plan did not cover it, and would not in 2017.  Although the Plan has since been modified to allow coverage for some aspects of gender transition, hormones and counseling, the express exclusion of surgery continues.

Fletcher’s request for coverage spurred the State to study the cost of eliminating this exclusion, for which it engaged a consultant, who advised that the annual increase in claims on the Plan would be $60,000.  Although there was internal discussion about this within the State government, no further action was taken to change the Plan to cover surgical transition procedures.

Because AlaskaCare would not cover her surgery, Fletcher obtained her surgery in Thailand, where the procedure is less expensive than if it were performed without insurance coverage in the Unites States.  She filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), alleging that the Plan’s exclusion violates Title VII’s ban on discrimination in “terms and conditions of employment” because of an individual’s sex.  The State’s simplistic response was that because the Plan excludes coverage for any surgical procedure for purposes of gender transition, whether the employee involved was identified as male or female at birth, there was no discrimination “because of sex.”  The EEOC rejected this argument, and issued a finding that the State’s policy violates Title VII.  On May 17, 2019, the EEOC notified Fletcher that its attempt to “conciliate in this matter” with the State was unsuccessful, authorizing her to file a lawsuit.

Fletcher’s complaint alleged that the State discriminated against her because of her “sex” which, she alleged, includes “discrimination on the basis of gender nonconformity, gender identity, transgender status, and gender transition.”  This list covered all the bases of different theories that federal courts have used at various times to evaluate Title VII claims by transgender plaintiffs.  After discovery, Fletcher moved for summary judgment on the question whether the Plan exclusion violates Title VII, while the State moved for summary judgment to dismiss the entire lawsuit on the merits.

As it turned out, the list of alternative coverage theories in Fletcher’s complaint was unnecessary, because Judge Holland concluded that the exclusion was, on its face, discrimination “because of sex.”He based this conclusion on the State’s concession that all the surgical procedures involved in Fletcher’s transition would be covered if they were performed for reasons other than gender transition.

Thus, if Fletcher was identified as female at birth but needed the vaginoplasty procedure for some reason other than transition, she would be covered, and indeed that procedure is employed to deal with some medical conditions experienced by women.  Because she was identified as male at birth, however, coverage for the the procedure was denied, because its only purpose for somebody identified as male at birth would be for gender transition.  To Judge Holland, this was clearly an exclusion specifically because of the sex of the employee, and one had to go no further into theories of gender nonconformity, gender identity or transgender status in order to bring her claim within the coverage of the statute.

Under Title VII, any “disparate treatment” between men and women regarding a particular term or benefit of employment is illegal unless it can be justified as a “bona fide occupational qualification” (BFOQ) that is “reasonably necessary to the normal operation or essence of an employer’s business.”  In this case, Holland commented, “Defendant has not argued, nor could it, that there is any BFOQ for the disparate treatment at issue here.  As such, plaintiff is entitled to summary judgment that defendant violated her rights under Title VII.”

While granting Fletcher’s motion, the court simultaneously denied the State’s summary judgment motion.  Still to be determined is the remedy for the violation.  As Fletcher has already had the surgical treatment, the court needs to decide what to award for compensation for violation of the statute.  In light of the court’s decision on the merits of Fletcher’s claim, it is likely that the parties will negotiate a settlement on damages.

Judge Holland was appointed to the District Court by President Ronald Reagan and took senior status in 2001.

Unanimous Federal Appeals Panel Blasts Trump Administration in HIV-Military Discharge Cases

Posted on: January 14th, 2020 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, Virginia, blasted the Trump Administration on January 10 for relying on “outmoded”  information that is “at odds with current science” when the Air Force moved to discharge otherwise healthy HIV-positive service members based on the spurious assertion that they were not available for deployment outside the United States.  Roe v. U.S. Department of Defense, 2020 U.S. App. LEXIS 821, 2020 Westlaw 110826 (4th Cir., Jan. 10, 2020).

The court affirmed a preliminary injunction that was issued last year by U.S. District Judge Leonie M. Brinkema, barring the discharges while the case proceeds to an ultimate ruling on the merits.  The court’s opinion, written by Circuit Judge James Wynn, provides a detailed review of relevant Defense Department policies  and current medical facts, leaving little doubt that Judge Brinkema’s conclusion that plaintiffs are likely to win their case is solidly grounded in legal reasoning.

The three-judge panel consisted of Wynn, who was appointed by Barack Obama, and Albert Diaz and Henry Floyd, both also appointed by Obama.  At the time of his nomination to the court of appeals, Judge Floyd was a District Judge who had been appointed by George W. Bush.

Lambda Legal and Outserve-SLDN brought the case on behalf of two service members, anonymously identified as Richard Roe and Victor Voe, as well as other Outserve members who are HIV-positive and subject to discharge for that reason.  Both Roe and Voe had years of meritorious service when they were diagnosed as HIV-positive in 2017 as a result of the Defense Department’s policy of periodically requiring personnel to submit to HIV testing.  Both men immediately went into treatment, are taking retroviral therapy, have undetectable HIV, and are healthy and uncompromised in their ability to perform their duties.

Defense Department written policies state unequivocally that HIV-positive personnel who are “determined to be fit for duty will be allowed to serve in a manner that ensures access to appropriate medical care.”  The Air Force has a written policy stating that HIV-positive status “alone is not grounds for medical separation or retirement,” and states that “force-wide, HIV-infected employees are allowed to continue working as long as they are able to maintain acceptable performance and do not pose a safety or health threat to themselves or others,” and “may not be separated solely on the basis of laboratory evidence of HIV infection.”

The Catch-22, however, comes with the Air Force’s insistence that personnel must be deployable anywhere in the world, and in particular to the central theater of Air Force active operations, known as CENTCOM, which covers operations spanning North Africa, Central Asia, and the Middle East.  Under a rule known as “Modification 13,” personnel who are “found to be medically non-deployable will not enter [the Central Command area] until the non-deployable condition is completely resolved or an approved waiver is obtained.”  It lists “confirmed HIV infection” as “disqualifying for deployment.”  The official in charge of granting waivers has stated that it is highly unlikely that a waiver would be granted for HIV-positive servicemembers to be deployed to CENTCOM’s area, and in fact no such waiver has ever been granted.

In this litigation, the Defense Department takes the position that neither it, nor in particular the Air Force, has an absolute ban on continued employment of healthy HIV-positive personnel.  On the other hand, since most of the Air Force’s current activity is in the CENTCOM area, Modification 13 prohibits deployment of HIV-positive personnel to CENTCOM without a waiver, and the official in charging of granting waivers does not grant them for HIV-positive personnel, there is, de facto, a ban.

The lawsuit claims that the discharge of Roe, Voe and similarly-situated service members for being HIV-positive violates the Administrative Procedure Act (APA), as being “arbitrary and capricious” in light of the facts of their individual cases, and also violates the Equal Protection requirements of the 5th Amendment.  Judge Brinkema and the court of appeals narrowed their attention to the alleged APA violation, under the well-established approach of avoiding making a constitutional ruling if the plaintiff can prevail based on a statutory claim.

In this case, it seemed clear to Brinkema and the appeals panel that the government’s position was inconsistent with medical facts, based on outmoded ideas about HIV and current treatments. The court emphasized that Roe and Voe take daily pills that do not require any special treatment (refrigeration, for example, or shielding from temperature extremes, which were required for some HIV treatments prior to the introduction of the pills now in use) and have not generated any significant side effects for either man.  The court summarizes the well-established science that somebody with undetectable levels of HIV presents virtually no risk of transmission through casual contact, and even blood exposure or sexual contact with somebody under retroviral treatment whose HIV level is undetectable is highly unlikely to result in transmission.

Both men present themselves as fully capable of performing their duties, and in both cases their commanding officers have endorsed their request to be allowed to continue serving, as have military physicians.  However, the Air Force, despite the requirements in published policies to evaluate each case on its individual merits, has maintained a de facto categorical exclusion.  Each man appealed the initial rulings against them internally, and both were met with virtually identical formulaic statements that they had to be discharged on medical grounds under the deployability rules, suggesting that their cases did not receive individualized consideration.

“To comply with the APA,” wrote Judge Wynn, “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found the choice made.  Agency action is arbitrary and capricious when the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

Analyzing these requirements, Wynn pointed out that “the Government has taken inconsistent positions on whether HIV-positive servicemembers may deploy to CENTCOM’s area of responsibility.” Prior to this litigation, the Government has treated Modification 13 as “a categorical ban,” but now it tries to appear to conform to APA requirements by emphasizing the possibility of a waiver being granted.  But this position is belied by the evidence that waivers have not been granted in any HIV case, despite the facts concerning these plaintiffs.

“If Modification 13 is not a categorical ban,” wrote Wynn, “the Air Force acted arbitrarily by treating them as categorically ineligible to deploy to CENTCOM’s area of responsibility and denying Plaintiffs the required individualized assessment of their fitness for continued service.  If Modification 13 is a categorical ban, the Government failed to satisfy the APA’s requirements in promulgating their policy.”

The court of appeals concluded that Judge Brinkema “rightly found that Plaintiffs are likely to succeed on their claim that the Air Force’s discharge decisions were arbitrary and capricious, in violation of the APA.”  This is the threshold factor in deciding whether to issue a preliminary injunction to pause the discharge process while the case is litigation has been met.  In this case, the men were designated for discharge without any individualized assessment, and furthermore without even applying for a waiver and being turned down, since the Air Force’s decision-makers predicted that CENTCOM would deny a waiver in their cases, making any such application virtually futile.  “Such a categorical predictive assessment is not ‘a satisfactory explanation’ for discharging each servicemember,” wrote Wynn, “and in using this predictive assessment to discharged these servicemembers, the Air Force violated Department of Defense regulations, failed to consider important aspects of the criteria for discharge, and explained its decision in a manner contrary to the evidence before it.”

Indeed, wrote Wynn, “Upon review, each explanation offered by the Government for the policy is unsupported by the record or contradicted by scientific evidence, leading us to conclude Plaintiffs have adequately shown that the Government failed to consider the relevant evidence and offers explanations so contrary to that evidence as to be arbitrary.”

For example, the court found the Government’s claim that HIV requires “highly specialized” treatment to be unsupported by the record in this case, which shows that managing HIV through anti-retroviral medications involves taking a single daily pill, “which does not require special storage or handling,” minimal side effects, and periodic blood tests that  can be simply performed by any general practitioner in the field, which are reduced to once a year after somebody has been “undetectable” for a period of two years.

The court similarly dismissed some of the standard arguments that were made earlier in the epidemic prior to current treatment protocols, and found that “the risk of battlefield transmission is unsupported by the record,” given the medical evidence that those with undetectable viral loads don’t transmit the virus.  The court found that the Defense Department’s own internal research showed that out of 1.13 million Army servicemembers deployed to Afghanistan or Iraq between 2001 and 2007, only 131 seroconverted, a lower rate than among servicemembers who were not deployed to those countries, and there was only one documented case of a servicemember who had seroconverted during deployment.  Furthermore, there was no documentation of any servicemember contracting HIV through non-sexual means, and no instances of transmission through  trauma care, blood splash, transfusion, or other battlefield circumstances.  In short, the government’s explanations for its policy were contradicted by the data it generated through its own internal studies.

“A ban on deployment may have been justified at a time when HIV treatment was less effective at managing the virus and reducing transmission risks,” wrote Wynn.  “But any understanding of HIV that could justify this ban is outmoded and at odds with current science.  Such obsolete understandings cannot justify a ban, even under a deferential standard of review and even according appropriate deference to the military’s professional judgements.”  As to Modification 13, relied upon so heavily by the Air Force in this case, it “evidences a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence – disregarding entirely the need for reasoned decision-making.”

The court found that plaintiffs easily met the other tests for obtaining preliminary relief, showing they are likely to suffer irreparable harm if they are given medical discharges.  Such discharges would effectively require them to “out” themselves as HIV-positive when they apply for non-military employment, and the interruption of their military careers would set them back in tangible and intangible ways if they ultimately won their cases and the Air Force was ordered to take them back.

The court also endorsed Judge Brinkema’s conclusion that the balance of the equities and the public interest support requiring the Air Force to keep these men employed while their cases are pending.  As to the argument that the injunction improperly intrudes into military personnel decision-making, the court agreed with Judge Brinkema that the relief request by the plaintiffs “that Defendants adhere to their stated policies and make nonarbitrary, personalized determinations about each individual’s fitness for service did not do violence to the notion of military independence.”

Thus, the court upheld Judge Brinkema’s order that the Air Force not discharge “active-duty servicemembers because they are classified as ineligible to deploy to CENTCOM’s area of responsibility due to their HIV status.”  The court rejected the government’s ritualistic opposition to a nation-wide injunction, finding that Supreme Court precedents support such relief in a case such as this.

In a parting shot, Judge Wynn wrote, “The Government’s explanations for why it has imposed an effective ban on deploying HIV-positive servicemembers to CENTCOM’s areas of responsibility are at odds with modern science.”  After concisely summarizing the basic evidence, he commented, “the Government did not consider these realities when discharging these servicemembers, instead relying on assumptions and categorical determinations.  As a result, the Air Force denied these servicemembers an individual determination of their fitness for military service,” which violates the APA.

Lambda Legal’s lead attorney on the case is Scott Schoettes of Lambda’s Chicago office.  Outserve-SLDN’s lead attorney is Peter Perkowski, Washington, D.C.  Amicus briefs were filed on behalf of a variety of individuals and groups, represented by Winston & Strawn LLP and Dentons US LLP, as well as GLBTQ Legal Advocates & Defenders, a Boston-based public interest law firm.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Supreme Court Grants Certiorari in Oregon Wedding Cake Case, but Remands for “Further Consideration” in Light of Masterpiece Cakeshop

Posted on: June 17th, 2019 by Art Leonard No Comments

The U.S. Supreme Court granted a petition for a writ of certiorari in Klein v. Oregon Bureau of Labor and Industries, No. 18-547, on June 17, but at the same time vacated the Oregon Court of Appeals decision in the case, 289 Or. App. 507 (Dec. 28, 2017), and remanded the case to that court for “further consideration” in light of the Court’s decision last year in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).  The Court did not issue any explanation for its ruling, beyond the direction of “further consideration” specifying Masterpiece Cakeshop as the ground for such consideration.

Both cases involved the question whether a baker who refuses to make a wedding cake for a same-sex couple has a federal constitutional defense to a discrimination charge in the state administrative and judicial fora.  In both Oregon and Colorado, state law forbids discrimination because of sexual orientation in places of public accommodation, and businesses selling wedding cakes are definitely public accommodations under both laws.  Without ruling directly on the question presented in Masterpiece, the Supreme Court last year vacated the Colorado Court of Appeals and Colorado Commission rulings based on the Court’s conclusion that the Commission forum was “hostile to religion” as evidenced by statements by two of the Commissioners and “inconsistent” action on a religious discrimination charge by a provocateur who sought unsuccessfully to order anti-gay cakes from other bakers.

It takes at least four votes on the Supreme Court to grant a writ of certiorari, but it takes at least five votes to vacate and remand a lower court ruling.  According to its usual practice, the Court did not specify how many justices voted for the cert grant or the “vacate and remand” order.

The issue on remand for the Oregon Court of Appeals appears to be whether some statements made by Brad Avakian, Commissioner of the Oregon Bureau of Labor and Industry (BOLI), evinced the kind of hostility to religion that the Supreme Court identified as problematic in the Masterpiece case.

When Melissa Klein, proprietor of Sweetcakes by Melissa, rejected a wedding cake order from Rachel and Lauren Bowman-Cryer on religious grounds, the women filed complaints with the Oregon Department of Justice and the Bureau of Labor and Industries. The media found the case newsworthy, resulting in interviews with Melissa Klein and her husband in which they sought to justify their action on religious grounds.  Commissioner Avakian reacted to the ensuing controversy by posting a statement to his Facebook page and speaking with The Oregonian, a wide-read newspaper in the state.

Avakian’s Facebook post included a link to a television station’s news story about the refusal of service and a statement: “Everyone has a right to their religious beliefs, but that doesn’t mean they can disobey laws that are already in place.  Having one set of rules for everybody ensures that people are treated fairly as they go about their daily lives.”  The Oregonian subsequently quoted Avakian as saying that “everyone is entitled to their own beliefs, but that doesn’t mean that folks have the right to discriminate.”

Under BOLI’s procedures, an administrative law judge (ALJ) holds a hearing and issues a “proposed final order,” to which the parties can file “exceptions” as an appeal to the Commissioner.  Before the hearing in this case, the Kleins moved to disqualify Commissioner Avakian from taking any role in the case, arguing that his public statements had prejudged the case so he was not neutral.  The ALJ denied the motion to disqualify and went on to find that the Kleins had violated the statute by denying services to the couple “on account of” their sexual orientation, as prohibited by the statute.  The ALJ rejected the Kleins argument that they had not discriminated because of the women’s sexual orientation, or that their actions were protected by the First Amendment free speech and free exercise of religion provisions.  But the ALJ also rejected BOLI’s argument that statements made by Mr. Klein during interviews were communicating a future intent to discriminate, which would itself violate a specific prohibition in the statute. Rather, the ALJ ruled, they were an account of the reasons for their denial of services in this case.  The ALJ ordered damages to the couple totaling $135,000, mainly for emotional suffering and having to put up with the media attention.

The Kleins and BOLI both filed exceptions to the ALJ’s proposed order. Commissioner Avakian affirmed the ALJ’s ruling on discrimination, but disagreed with the ruling on statement of future intent to discriminate.  Avakian concluded that the record supported the opposite finding, that the interviews and a sign taped to the bakery’s window communicated intent to discriminate on the same basis in the future, but he approved the ALJ’s proposed damage award without adding anything for this additional violation.  The Kleins then petitioned for judicial review.

The Oregon Court of Appeals affirmed the ALJ’s decision on discrimination, but rejected Commissioner Avakian’s reversal of the ALJ’s ruling on communicating an intention to discriminate in the future.  The court also rejected the Kleins’ argument on appeal that Avakian should have been disqualified from ruling on the case because of his Facebook and Oregonian interview statements. As to another flashpoint in the case, the court deemed the amount of damages awarded appropriate, noting that the amount was in line with damages awarded in other similar cases.  The Kleins sought review in the Oregon Supreme Court, but were turned down without comment.

The Kleins’ petition for certiorari to the U.S. Supreme Court mentions the issue of Avakian’s statements and the ALJ and Oregon court’s rejections of disqualification, but it does not focus on that issue in its statement of questions presented, even though the petition was filed months after the Supreme Court’s ruling in Masterpiece Cakeshop made that a potentially viable alternative route to getting the agency’s decision overturned.  Counsel for the Kleins, instead, were focused on getting the Supreme Court to reconsider its 1990 ruling, Employment Division v. Smith, 494 U.S. 872, in which the Court abandoned its long-established free exercise clause jurisprudence, substituting a rule that people have to comply with neutral state laws of general application – such as most anti-discrimination laws – even though complying might burden their free exercise of religion.   Their second “question presented” asked the Court to overrule Smith, and their third “question presented” asked the Court to “reaffirm” a “hybrid rights doctrine” suggested in dicta in Smith, where there would be more stringent judicial review in cases where other constitutional rights in addition to free exercise of religion were implicated.

The Supreme Court’s decision to vacate the Oregon Court of Appeals decision for “further consideration” by the state court suggests that there are not enough votes on the Court to reconsider Smith as of now, but we can’t know how many votes short the proponents on the Court of reconsidering Smith might be.  Smith has long been a controversial precedent.  The decision’s cutback on protection for religious objectors led Congress to pass the Religious Freedom Restoration Act and many states to pass their own versions of that law.  But Smith has become a bulwark for vindicating the rights of same-sex couples to obtain wedding-related goods and services, as most courts confronted with the issue have concluded that such businesses do not have the right to deny them to same-sex couples.

The Kleins are represented by First Liberty Institute of Plano, Texas, Boyden Gray & Associates of Washington, D.C., and Oregon local counsel Herbert G. Grey.  Ten amicus briefs, all urging the Court to grant the petition for certiorari, were filed by conservative and religious litigation and policy groups, many extolling the case as a vehicle for overturning Employment Division v. Smith.  Lambda Legal represented Rachel and Laurel Bowman-Cryer with an amicus brief at the Oregon Court of Appeals.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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