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Trump Administration Suffers More Setbacks in Defending Transgender Military Ban

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

Two federal district judges have issued new rulings in lawsuits challenging the Trump Administration’s ban on military service by transgender individuals, mainly adverse to the government.  [Addendum:  After this was drafted, we received a decision from a federal magistrate judge in Baltimore on discovery issues in one of the other challenged to the transgender ban.  Our summary appears at the end of this posting.]

After the San Francisco-based U.S. Court of Appeals for the 9th Circuit refused to lift Seattle U.S. District Judge Marsha Pechman’s preliminary injunction against the policy on July 18, she issued a new ruling on July 27 granting the plaintiffs’ motion to compel discovery and denying the government’s motion for a protective order that would shield President Trump from having to respond to any discovery requests.  The Justice Department immediately announced that it would appeal this ruling to the 9th Circuit Court of Appeals.  Judge Pechman had previously denied motions for summary judgment in the case, having found that there was a need for discovery before such a ruling could take place.

On August 6, D.C. District Court Judge Colleen Kollar-Kotelly, who had issued the first preliminary injunction against the policy last year, issued two decisions. In one, she rejected the government’s request to vacate her preliminary injunction as moot, finding that the plaintiffs have standing to challenge the “new” policy described by Defense Secretary James Mattis in his February 2018 memo to the President, and agreeing with Judge Pechman that the “new” policy is not essentially different from the “old” one announced by President Trump a year ago. However, Judge Kollar-Kotelly granted a motion by the government to dismiss President Trump as an individual named defendant in the case.

Two other lawsuits challenging the policy are pending in federal district courts in Riverside, California, and Baltimore, Maryland. In both cases, the judges have received motions from the parties that are awaiting decision, similar to those filed with Judges Pechman and Kollar-Kotelly.

To recap for those coming late to this story, Trump tweeted a ban on transgender military service on July 26, 2017, and issued a memorandum a month later describing the policy in slightly more detail, charging Secretary Mattis to propose a plan for implementation by late February, 2018, with the goal of implementing the policy later in March. Trump’s memo specified that Mattis’s previous directive to allow transgender applicants to join the military, which had been announced at the end of June 2017 to go into effect on January 1, 2018, was to be indefinitely delayed, as Trump’s policy would not allow transgender people to enlist.  Mattis announced that no action would be taken against now-serving transgender personnel pending the implementation of the policy in March 2018, but there were reports of transgender personnel suffering cancellations of promotions and desire assignments and of planned medical procedures after the policy was announced.

Mattis’s memo to the president in February proposed some modifications to the policy that had been announced in Trump’s August memorandum. Transgender personnel who were already serving and had transitioned and were “stable” in their preferred gender would be allowed to continue serving, based on a determination that the investment in their training outweighed whatever “risk” they posed to the readiness of the military.  Furthermore, transgender individuals who had not transitioned or been diagnosed with “gender dysphoria” would be allowed to enlist and serve, provided they refrained from transitioning and served in the sex identified at birth.  Otherwise, those diagnosed with “gender dysphoria” would be prohibited from enlisting or serving, and those who could not comply with these requirements would be discharged.  The proposal was based on a “finding” by a rigged special committee apparently dominated by committed opponents of transgendered service that allowing transgender people to serve in the military was harmful to the operational efficiency of the service – a finding based on no factual evidence and oblivious to the fact that transgender people had been serving openly without any problems since the Obama Administration lifted the prior ban at the end of June 2016.

Four lawsuits had been filed in response to the summer 2017 policy announcement, and in a matter of months the four district courts had issued preliminary injunctions, having found it likely that the plaintiffs would prevail on their argument that the policy violates the Equal Protection requirements of the 5th Amendment of the Bill of Rights. As compelled by the preliminary injunctions, the Defense Department allowed transgender people to submit applications to enlist beginning January 1, 2018, after losing a last-ditch court battle to continue the enlistment ban, but there were reports that the applications they received were getting very slow processing, and all indications are that few have been accepted for service.

Trump responded to Mattis’s February 2018 memo by “withdrawing” his prior memo and tweet, and authorizing Mattis to adopt the implementation plan he was recommending by late March. The Justice Department then filed motions in all the lawsuits seeking to lift the preliminary injunctions. Their argument was, in part, that the “new” policy was sufficiently different from the one that had been “withdrawn” as to moot the lawsuits. They further contended that the plaintiffs who were already serving and would be allowed to continue serving under the “new” policy no longer had standing to challenge the policy in court.  The Department also argued that plaintiff’s attempts to conduct discovery in the case should be put on hold until there was a definitive appellate ruling on their motion to lift the preliminary injunctions.

On April 13, Judge Pechman rejected the government’s motion to lift the preliminary injunction, having already ordered that discovery proceed. In his initial tweet, Trump had claimed that he had consulted with generals and other experts before adopting the policy, but the identities of these people were not revealed, and the government has stonewalled against any attempt to discover their identities or any internal executive branch documents that might have been generated on this issue, making generalized claims of executive privilege.  Similarly, the February memorandum released under Mattis’s name did not identify any of the individuals responsible for its composition, and naturally the plaintiffs are also seeking to discover who was involved in putting it together and what information they purported to rely upon.

Judge Pechman’s July 27 order to compel discovery specified the materials sought by the plaintiffs, and pointed out that under federal evidentiary rules, any claim of privilege against disclosure is subject to evaluation by the court. “The deliberative privilege is not absolute,” she wrote.  “Several courts have recognized that the privilege does not apply in cases involving claims of governmental misconduct or where the government’s intent is at issue.”

The question, under 9th Circuit precedents, is “whether plaintiffs’ need for the materials and the need for accurate fact-finding override the government’s interest in non-disclosure.  In making this determination, relevant factors include: (1) the relevance of the evidence; (2) the availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.”  There is a formal process for invoking privilege, which requires the government to “provide precise and certain reasons for preserving the confidentiality of designated material.”

In this case, Judge Pechman had previously determined that discrimination because of gender identity involves a “suspect classification” for purposes of equal protection requirements, which means the government has the burden of proving that there is a compelling justification for the discrimination. In this case, however, the government has articulated only a generalized judgment that service by transgender individuals is too “risky” based on no facts whatsoever.  Judge Pechman concluded in granting the plaintiffs’ discovery motion that “the deliberative process privilege does not apply in this case.”

The government had moved for a protective order “precluding discovery directed at President Trump.” While conceding that Trump has “not provided substantive responses or produced a privilege log” listing specifically what information has to be protected against disclosure, the government contended that “because the requested discovery raises ‘separation of powers concerns,’ Plaintiffs must exhaust discovery ‘from sources other than the President and his immediate White House advisors and staff’ before he is required to formally invoke the privilege.”

Judge Pechman noted that so far the government has refused to provide any information about how the policy decision was made or developed, and has failed to identify the specific documents and other information for which it claims privilege. In a footnote, she commented, “The Court notes that Defendants have steadfastly refused to identify even one general or military official President Trump consulted before announcing the ban.”  Thus, she found, there was no basis for the court to evaluate “whether the privilege applies and if so, whether Plaintiffs have established a showing of need sufficient to overcome it.”  Indeed, she concluded in a prior decision, as far as the record stands, it looks as if Trump made the whole thing up himself without relying on any military expertise. Thus, she has preliminarily rejected the government’s contention that the policy would enjoy the deference normally extended to military policies adopted based on the specialized training and expertise of the military policy makers.

Judge Kollar-Kotelly’s August 6 ruling focused on an issue that Judge Pechman had previously decided: whether the plaintiffs had standing to continue challenging the policy after Mattis’s memo supplanted the “withdrawn” earlier policy announcements. She had little trouble in determining that all the plaintiffs, even those who are currently-serving transgender personnel who would be allowed to consider serving under the “new” policy, still had standing, which requires a finding that implementing the policy would cause them harm.

“The Court rejects Defendants’ argument that Plaintiffs no longer have standing because they are not harmed by the Mattis Implementation Plan,” she wrote, stating that “the effect of that plan would be that individuals who require or have undergone gender transition would be absolutely disqualified from military service, individuals with a history or diagnosis of gender dysphoria would be largely disqualified from military service, and, to the extent that there are any individuals who identify as ‘transgender’ but do not fall under the first two categories, they would be allowed to serve, but only ‘in their biological sex’ (which means that openly transgender persons would generally not be allowed to serve in conformance with their identity.)” Furthermore, those who have already transitioned and are now serving would be doing so under the stigma of having been labeled as “unfit” for military service and presenting an undue risk to military readiness, and would likely suffer prejudice in terms of their assignments and their treatment by fellow military personnel, as well as emotional harm.

“The Mattis Implementation Plan sends a blatantly stigmatizing message to all members of the military hierarchy that has a unique and damaging effect on a narrow and identifiable set of individuals, of which Plaintiffs are members,” she wrote. They would be serving “pursuant to an exception to a policy that explicitly marks them as unfit for service.  No other service members are so afflicted.  These Plaintiffs are denied equal treatment because they will be the only service members who are allowed to serve only based on a technicality; as an exception to a policy that generally paints them as unfit.”

She concluded that “because their stigmatic injury derives from this unequal treatment, it is sufficient to confer standing.” She pointed out that beyond stigmatization, the Implementation Plan “creates a substantial risk that Plaintiffs will suffer concrete harms to their careers in the near future.  There is a substantial risk that the plan will harm Plaintiffs’ career development in the form of reduced opportunities for assignments, promotion, training, and deployment.  These harms are an additional basis for Plaintiffs’ standing.”  She rejected the government’s contention that these harms were only “speculative.”

Furthermore, she rejected the claim that Trump’s “withdrawal” of his August 2017 memorandum and the substitution of the Mattis Implementation Plan made the existing lawsuits moot, agreeing with Judge Pechman that the “new” plan was merely a method of “implementing” the previously announced policy. She found that the Implementation Plan “prevents service by transgender individuals,” just as Trump had directed in August 2017, and the minor deviations from the complete categorical ban were not significant enough to make it substantially different.

Thus she refused to dissolve the preliminary injunction. She refrained from ruling on motions for summary judgment on the merits of the equal protection claim, because there are sharply contested facts in this case and no discovery has taken place, so it can’t be decided purely as a matter of law. The facts count here in court, even if they don’t seem to count in the White House or the Defense Department.

However, Judge Kollar-Kotelly granted the government’s motion to partially dissolve the injunction as it applies personally to Trump, and granted the motion to “dismiss the President himself as a party to this case. Throughout this lawsuit,” she wrote, “Plaintiffs ask this Court to enjoin a policy that represents an official, non-ministerial act of the President, and declare that policy unlawful.  Sound separation-of-power principles counsel the Court against granting these forms of relief against the President directly.”  Thus, she concluded, there was no reason to retain Trump as a defendant.  If the Plaintiffs prevail on the merits, an injunction aimed at the Defense Department’s leadership preventing the policy from taking effect will provide complete relief.

The Plaintiffs complained that removing Trump from the case as a defendant would undermine their attempt to discover the information necessary to make their case, since individuals who are parties to litigation are particularly susceptible to discovery requests. The judge wrote that “it would not be appropriate to retain the President as a party to this case simply because it will be more complicated to seek discovery from him if he is dismissed.  To the extent that there exists relevant and appropriate discovery related to the President, Plaintiffs will still be able to obtain that discovery despite the President not being a party to the case.”  And, she concluded, “Plaintiffs will be able to enforce their legal rights and obtain all relief sought in this case without the President as a party.”

The judge treated as moot the Defendants’ motion for a protective order shielding Trump from having to respond to discovery requests. “However,” she wrote, “the Court reiterates that dismissing the President as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related to the President.  The court understands that the parties dispute whether discovery related to the President which has been sought by Plaintiffs is precluded by the deliberative process or presidential communication privileges, and the Court makes no ruling on those disputes at this point. The Court will be issuing further opinions addressing other dispositive motions that have been filed in this case.  After all of those opinions have been issued, if necessary, the Court will give the parties further guidance on the resolution of the discovery requests in this case.”  In a footnote, Judge Kollar-Kotelly noted Judge Pechman’s July 27 discovery order, and that defendants were appealing it to the 9th Circuit.  The judge emphasized that the preliminary injunction remains in effect for all of the remaining defendants in the case, so the policy may not be implemented while the case continues.

The possibility that Trump will be ordered to submit to questioning under oath in at least one of these cases remains a reality, but any attempt by the Plaintiffs to do so would undoubtedly arouse spirited opposition from the Defense Department, officially based on claims of privilege, but realistically due to the likelihood that Trump would perjure himself under such questioning. Recall the historical precedent:  The House of Representatives voted to impeach President Clinton based, in part, on the charge that he committed perjury during questioning before a grand jury by the Special Counsel investigating his affair with Monica Lewinski.  Thus, at least in that case, the House considered presidential perjury to be an impeachable offense.

Plaintiffs in the Seattle case, Karnoski v. Trump (in which the president remains a defendant), are represented by Lambda Legal and pro bono attorneys from Kirkland & Ellis. Plaintiffs in the D.C. case, Jane Doe 2 v. Trump, are represented by the National Center for Lesbian Rights, GLBTQ Legal Advocates & Defenders (GLAD), and pro bono attorneys from Wilmer Cutler Pickering Hale & Dorr LLP and Foley Hoag LLP.

Addendum:

On August 14, U.S. Magistrate Judge A. David Copperthite, to whom Baltimore U.S. District Judge Marvin J. Garbis had referred discovery matters in Stone v. Trump, another one of the pending cases, issued a ruling granting in part the plaintiffs’ motion to compel discovery of deliberative materials regarding Trump’s July 2017 tweet, August 2017 memorandum, the “activities of the DoD’s so-called panel of experts and its working groups” who put together the memorandum ultimately submitted by Mattis to the President in February 2018, and deliberative materials regarding that Implementation Plan and the President’s March memorandum, “including any participation or interference in that process by anti-transgender activists and lobbyists.” However, noting that a motion is pending before Judge Garbis to dismiss Trump as a defendant in the case, Judge Copperthite declined to rule on the government’s request for a protective order that would shield Trump from having to respond to discovery requests directed to him, “pending the resolution of the motion to dismiss President Trump as a party.”  Cooperthite wrote that “no interrogatories or document requests will be directed to President Trump as a party, but may be directed to other parties pursuant to this Memorandum Opinion.  If the Motion to Dismiss is denied, the Court will revisit the issue of the protective order as to President Trump.”

Cooperthite faced a practical dilemma in dealing with the government’s requests to shield Trump from discovery. “On July 27, 2017, President Trump tweeted transgender persons would no longer be able to serve in the military and as for any deliberative process, simply stated this policy occurred after consulting with ‘my Generals and military experts.’  There is no evidence to support the concept that ‘my Generals and military experts’ would have the information Plaintiffs request.  There is no evidence provided to this Court that ‘my Generals and military experts’ are identified, in fact do exist, or that they would be included in document requests and interrogatories propounded to the Executive Branch, excluding the President.  By tweeting his decisions to the world, the President has, in fact narrowed the focus of Plaintiffs’ inquiries to the President himself.  The Presidential tweets put the President front and enter as the potential discriminating official.”  So there is a real question whether discovery that doesn’t include President Trump is at all meaningful, since the ultimate legal question in the litigation is the intent of the government in adopting the ban which is, at bottom, Trump’s intent.  On the other hand, discovery directed at President Trump raises serious questions about separation of powers and the traditional respect for the confidentiality of internal White House policy deliberations.

“So many factors are unknown at this juncture in the litigation,” wrote Copperthite. “It is unknown whether Plaintiffs can obtain the information necessary from the non-Presidential discovery to define the ‘intent’ of the government with respect to the transgender ban.  Defendants offer as an alternative, a stay of discovery with respect to the President, until the Motion to Dismiss the President as a party is decided.  If the President, as the discriminating official, tweeted his transgender ban sua sponte as alleged, this Court sees no alternative to obtaining the intent of the government other than denying the protective order with respect to President Trump.”  However, he wrote, precedents “instruct this Court to give deference to the executive branch because ‘occasions for constitutional confrontation between the two branches should be avoided whenever possible.’”  Thus, Copperthite decided to put off deciding the protective order issue until after Judge Garbis decides whether to dismiss Trump as a party, but for now will order the defendants only to comply with discovery requests directed to defendants other than Trump, Secretary Mattis and the Secretaries of the various military branches.

Justice Department’s New Request to Implement Transgender Policy Denied by Seattle District Court

Posted on: June 19th, 2018 by Art Leonard No Comments

U.S. Senior District Judge Marsha J. Pechman issued an opinion on June 15, rejecting another attempt by the Trump Administration to get her to lift her preliminary injunction in Karnoski v. Trump and allow the latest version of President Trump’s ban on military service by transgender individuals to go into effect while they appeal her earlier rulings to the 9th Circuit Court of Appeals.  Hope springs eternal at the Justice Department, as their new motion does not really make any arguments that Judge Pechman did not reject in her earlier opinions.  The new opinion in Karnoski v. Trump, 2018 U.S. Dist. LEXIS 100789 (W.D. Wash.), rejects the same arguments emphatically.

Last July, the President tweeted his declaration that transgender people would not be allowed to serve in the U.S. military in any capacity, purporting to reverse a policy on transgender service adopted by the Obama Administration and in effect since July 1, 2016. A month later the White House issued a memorandum setting out the President’s new policy in greater detail, including an implementation date in March 2018 and a permanent postponement of the January 1, 2018, date that had been set by Defense Secretary James Mattis last June for allowing transgender individuals to apply to join the service.  Four lawsuits were filed by different groups of plaintiffs in District Courts in Washington, D.C., Baltimore, Seattle, and Riverside (California), challenging the constitutionality of the policy.  All four federal district judges found that the plaintiffs were likely to win on the merits and issued preliminary injunctions intended to have national effect, forbidding implementation of the policy while the litigation proceeded.  None of the district judges were willing to stay their injunctions pending appeal, and the D.C. and 4th Circuit Courts of Appeals also rejected motions to stay, at which point the Justice Department temporarily desisted from further appeals.

Meantime, Trump had ordered Mattis to come up with a written plan for implementation of the August Memorandum, to be submitted to the White House in February. After Mattis submitted his proposal, which departed in some particulars from the August Trump Memorandum, Trump “withdrew” his Memorandum and tweets and authorized Mattis to adopt his plan.  The Justice Department then argued to Judge Pechman that her preliminary injunction should be lifted, because the policy at which it was directed was no longer on the table.

The judge concluded, however, in line with the plaintiff’s arguments, that the new policy was just a slightly modified version of the earlier policy, presenting the same constitutional flaws, so she refused to vacate her injunction. Instead, responding to motions for summary judgment, she ruled that the case should proceed to discovery and a potential hearing on contested fact issues.  The Justice Department filed a notice of appeal to the 9th Circuit on April 30, and filed a motion with Judge Pechman seeking an expedited ruling on the plaintiffs’ motion for summary judgment so that it could be appealed.  However, the judge declined to issue an expedited ruling, as discovery was supposed to take place and disputed facts might require a hearing to resolve.  Discovery has been delayed by the Justice Department’s insistence that much of the information the plaintiffs seek is covered by Executive Privilege, a dubious claim at best. The Justice Department has filed a motion with the 9th Circuit asking it to stay the preliminary injunction pending appeal, but as of June 15 the 9th Circuit had not responded to the motion.

Judge Pechman’s June 15 opinion said that “each of the arguments raised by Defendants already has been considered and rejected by the Court, and Defendants have done nothing to remedy the constitutional violations that supported entry of a preliminary injunction in the first instance.” She pointed out that she was no more persuaded now than she had been previously by the argument that Mattis’s Implementation Plan was a “new and different” policy.

The Justice Department also argued that “the Ninth Circuit and/or this Court ultimately are highly likely to conclude that significant deference is appropriate,” but Judge Pechman responded, “whether any deference is due remains unresolved.  Defendants bear the burden of providing a ‘genuine’ justification for the Ban.  To withstand judicial scrutiny, that justification must ‘describe actual state purposes, not rationalizations’ and must not be ‘hypothesized or invented post hoc in response to litigation.’”  To date,” she observed, “Defendants have steadfastly refused to put before the Court evidence of any justification that predates this litigation.”

She also pointed out that there are four nationwide preliminary injunctions in effect, not just hers. “As a practical matter,” she wrote, “Defendants face the challenge of convincing each of these courts to lift their injunctions before they may implement the Ban.”

The Justice Department also argued that failure to let the government implement the ban “will irreparably harm the government (and the public) by compelling the military to adhere to a policy it has concluded poses substantial risks.” But, Judge Pechman pointed out, at a hearing of the Senate Committee on Armed Services held after her injunction went into effect, both the Army Chief of Staff, General Mark Milley, and the Chief of Naval Operations, Admiral John Richardson, had testified that there were no problems with transgender people serving, as thousands are now doing.  Milley testified that he “monitors very closely” the situation and had received “precisely zer”’ reports of problems related to unit cohesion, discipline and morale.  Similarly, Admiral Richardson testified that he had received no negative reports, and that, in his experience, “it’s steady as she goes.”

The judge had already found that staying her injunction would likely cause irreparable injury to the plaintiffs, and that, in fact, “maintaining the injunction pending appeal advances the public’s interest in a strong national defense, as it allows skilled and qualified service members to continue to serve their country.”  She also rejected the Justice Department’s argument that her injunction should just apply to the nine individual transgender plaintiffs in the case, stating, “The Ban, like the Constitution, would apply nationwide.  Accordingly, a nationwide injunction is appropriate.”  And, she wrote, “The status quo shall remain ‘steady as she goes,’ and the preliminary injunction shall remain in full force and effect nationwide.”

The plaintiffs in the Karnoski case are represented by a small army of lawyers affiliated with Lambda Legal, Kirkland & Ellis (Chicago), Outserve-SLDN, and Seattle local counsel Newman & Du Wors LLP. The state of Washington, co-plaintiff in the case, is represented by attorneys from Kirkland & Ellis and the Washington Attorney General’s Office.  Fifteen states and the District of Columbia, the Constitutional Accountability Center, and Legal Voice (formerly known as the Northwest Women’s Law Center) are also participating in this case as amicus on behalf of the plaintiffs.

Federal Court Rejects Trump Administration Ploy and Orders Trial on Trans Military Ban

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

U.S. District Judge Marsha J. Pechman issued an Order on April 13 in Karnoski v. Trump, one of four pending legal challenges to the Trump Administration’s announced ban on military service by transgender people.  Judge Pechman, who sits in the Western District of Washington (Seattle), rejected the Administration’s argument that existing preliminary injunctions issued by her and three other federal district judges last year against the transgender ban are moot because of President Donald J. Trump’s March 23 Memorandum, which purported to “revoke” his August 25, 2017, Memorandum and July 26, 2017, tweets announcing the ban.  Karnoski v. Trump,  2018 WL 1784464 (W.D. Wash.).

Her skepticism as to this is clear from her description of events: “The 2018 Memorandum confirms [Trump’s] receipt of [Defense Secretary James Mattis’s] Implementation Plan, purports to ‘revoke’ the 2017 Memorandum and ‘any other directive [he] may have made with respect to military service by transgender individuals [an oblique reference to the July tweets],’ and directs the Secretaries of Defense and Homeland Security to ‘exercise their authority to implement any appropriate policies concerning military service by transgender individuals.’”  Thus, the judge rejected the Administration’s contention that Mattis was directed by the President to have a new study made to decide whether to let transgender people serve, and saw it for what it was: an order to propose a plan to implement Trump’s announced ban.

Judge Pechman also rejected the government’s argument that the policy announced in the February 22 Memorandum signed by Secretary James Mattis either deprives all the plaintiffs in the case of “standing” to sue the government, or that the policy it announces is so different from the one previously announced by President Trump that the current lawsuit, specifically aimed at the previously announced policy, is effectively moot as well. The government argued that due to various tweaks and exceptions to the policy announced on March 23, none of the individual plaintiffs in this case were threatened with the kind of individualized harm necessary to have standing, but Pechman concluded that each of the plaintiffs, in facts submitted in response to the March 23 policy, had adequately shown that they still had a personal stake in the outcome of this case.

Instead, and most consequentially, Judge Pechman found that the court should employ the most demanding level of judicial review – strict scrutiny – because transgender people are a “suspect class” for constitutional purposes.  However, Judge Pechman decided that it is premature to grant summary judgment to the plaintiffs, because disputed issues of material fact will require further hearings to resolve.  One is whether the government can prove that excluding transgender people from the military is necessary for the national security of the United States.  Another is whether the purported “study” that produced the February 22 “Report and Recommendations” and Mattis’s Memorandum are entitled to the kind of deference that courts ordinarily extend to military policies.

Judge Pechman’s boldest step is abandoning her prior ruling in this case that the challenged policies are subject only to heightened scrutiny, not strict scrutiny.  Although the Supreme Court has not been consistent or precise in its approach to the level of judicial scrutiny for constitutional challenges to government actions, legal scholars and lower courts have generally described its rulings as divided into three general categories – strict scrutiny, heightened scrutiny, and rationality review.

If a case involves discrimination that uses a “suspect classification,” the approach is strict scrutiny. The policy is presumed unconstitutional and the government has a heavy burden of showing that it is necessary to achieve a compelling government interest, and is narrowly tailored to achieve that interest without unnecessarily burdening individual rights.  The Supreme Court has identified race, national origin and religion as suspect classifications, and has not identified any new such classifications in a long time.  Lower federal courts have generally refrained from identifying any new federal suspect classifications, but the California Supreme Court decided in 2008 that sexual orientation is a suspect classification under its state constitution when it struck down the ban on same-sex marriage.

Challenges to economic and social legislation that do not involve “suspect classifications” or “fundamental rights” are generally reviewed under the “rational basis” test. They are not presumed unconstitutional, and the burden is on the plaintiff to show that there was no rational, non-discriminatory reason to support the challenged law.  Courts generally presume that legislatures have rational policy reasons for their actions, but evidence that a law was adopted solely due to animus against a particular group will result in it being declared unconstitutional.

During the last quarter of the 20th century, the Supreme Court began to identify some types of discrimination that fell somewhere between these existing categories, and the third “tier” of judicial review emerged, first in cases involving discrimination because of sex.  The Supreme Court has used a variety of verbal formulations to describe this “heightened scrutiny” standard, but it places the burden on the government to show that such a law actually advances an important government interest.

So far, litigation about transgender rights in the federal courts has progressed to a heightened scrutiny standard in decisions from several circuit courts, including recent controversies about restroom access for transgender high school students, public employee discrimination cases, and lawsuits by transgender prisoners. Ruling on preliminary injunction motions in the transgender military cases last fall, Judge Pechman and the three other federal judges all referred to a heightened scrutiny standard.  Now Judge Pechman blazes a new trail by ruling that discrimination against transgender people should be subject to the same strict scrutiny test used in race discrimination cases.

It is very difficult for the government to win a strict scrutiny case, but its best shot in this litigation depends on the court finding that the policy announced by Mattis is entitled to deference, and this turns on whether it is the product of “expert military judgment,” a phrase that appears in the Mattis Memorandum and the Report.   Judge Pechman has already signaled in her Order her skepticism as to this.  By characterizing this as an “Implementation Plan,” she implies that the question whether Trump actually consulted with generals and military experts back in July before tweeting his absolute ban remains in play, and she pointedly notes the continued refusal by the government to reveal who, if anyone, Trump consulted.

“Defendants to date have failed to identify even one General or military expert he consulted,” she wrote, “despite having been ordered to do so repeatedly. Indeed, the only evidence concerning the lead-up to his Twitter Announcement reveals that military officials were entirely unaware of the Ban, and that the abrupt change in policy was ‘unexpected.’”  Here she quotes Joint Chiefs Chairman Gen. Joseph Dunford’s statement the day after the tweets that “yesterday’s announcement was unexpected,” and news reports that White House and Pentagon officials “were unable to explain the most basic of details about how it would be carried out.”  She also notes that Mattis was given only one day’s notice before the announcement.  “As no other persons have ever been identified by Defendants – despite repeated Court orders to do so – the Court is led to conclude that the Ban was devised by the President, and the President alone.”

Thus, it would be logical to conclude, as she had preliminarily concluded last year when she issued her injunction, that no military expertise was involved and so no deference should be extended to the policy. On the other hand, the new “Report and Recommendations” are now advanced by the government as filling the information gap and supporting deference.  But Judge Pechman remains skeptical.  (There are press reports, which she does not mention, that this document originated at the Heritage Foundation, a right-wing think tank, rather than from the Defense Department, and it has been subjected to withering criticism by, among others, the American Psychiatric Association.)

Citing their “study,” the government now claims “that the Ban – as set forth in the 2018 Memorandum and the Implementation Plan – is now the product of a deliberative review. In particular, Defendants claim the Ban has been subjected to ‘an exhaustive study’ and is consistent with the recommendations of a ‘Panel of Experts’ convened by Secretary Mattis to study ‘military service by transgender individuals, focusing on military readiness, lethality, and unit cohesion,’ and tasked with ‘conduct[ing] an independent multi-disciplinary review and study of relevant data and information pertaining to transgender Service members.’  Defendants claim that the Panel was comprised of senior military leaders who received ‘support from medical and personnel experts from across the [DoD] and [DHS],’ and considered ‘input from transgender Service members, commanders of transgender Service members, military medical professionals, and civilian medical professions with experience in the care and treatment of individuals with gender dysphoria.’  The Defendants also claim that the Report was ‘informed by the [DoD]’s own data obtained since the new policy began to take effect last year.’”

But, having “carefully considered the Implementation Plan,” wrote Pechman, “the Court concludes that whether the Ban is entitled to deference raises an unresolved question of fact. The Implementation Plan was not disclosed until March 23, 2018.  As Defendants’ claims and evidence regarding their justifications for the Ban were presented to the Court only recently, Plaintiffs and [The State of Washington, which has intervened as a co-plaintiff] have not yet had an opportunity to test or respond to these claims.  On the present record, the Court cannot determine whether the DoD’s deliberate process – including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon – is of the type to which Courts typically should defer.”

In other words, Pechman suspects that this purported “study” is a political document, produced for litigation purposes, and she is undoubtedly aware that its accuracy has been sharply criticized. Furthermore, she wrote, “The Court notes that, even in the event it were to conclude that deference is owed, it would not be rendered powerless to address Plaintiffs’ and Washington’s constitutional claims, as Defendants seem to suggest.”  And, she noted pointedly, the Defendants’ “claimed justifications for the Ban – to promote ‘military lethality and readiness’ and avoid ‘disrupt[ing] unit cohesion, or tax[ing] military resources’ – are strikingly similar to justifications offered in the past to support the military’s exclusion and segregation of African American service members, its ‘Don’t Ask, Don’t Tell’ policy, and its policy preventing women from serving in combat roles.”  In short, Pechman will not be bamboozled by a replay of past discriminatory policies, all of which have been abandoned because they were based mainly on prejudice and stereotyping.

Thus, although the judge denied for now the Plaintiffs’ motions for summary judgment, it was because factual controversies must be resolved before the court can make a final ruling on the merits.

The Defendants won only one tiny victory in this ruling: a concession that the court lacks jurisdiction to impose injunctive relief against President Trump in his official capacity. However, even that was just a partial victory for Defendants, as Judge Pechman rejected the suggestion that the court lacks jurisdiction to issue a declaratory judgment against the President.  “The Court is aware of no case holding that the President is immune from declaratory relief – rather, the Supreme Court has explicitly affirmed the entry of such relief,” citing several cases as examples.  “The Court concludes that, not only does it have jurisdiction to issue declaratory relief against the President, but that this case presents a ‘most appropriate instance’ for such relief,” she continued, taking note of Trump’s original Twitter announcement, and that two of the operative Memoranda at issue in the case were signed by Trump.  If, as Judge Pechman suspects, the Ban was devised in the first instance by Trump, and by Trump alone, a declaratory judgment that his action violated the Constitution would be entirely appropriate.

Plaintiffs are represented by a team of attorneys from Lambda Legal and OutServe-SLDN, with pro bono assistance from the law firms of Kirkland & Ellis LLP and Newman Du Wors LLP.

(Post script):

Mississippi Supreme Court, Rejecting Parental Status for an Anonymous Sperm Donor, Says Birth Mother Can’t Challenge Same-Sex Partner’s Parentage

Posted on: April 12th, 2018 by Art Leonard No Comments

Ruling on a custody contest between a birth mother and her former same-sex spouse on April 5, the Mississippi Supreme Court avoided mentioning the parental presumption that most states automatically apply for the spouse of a woman who gives birth to a child, relying instead on a doctrine called “equitable estoppel” to prevent the birth mother from contesting her former spouse’s parental status.

Although none of the five written opinions signed by different combinations of judges on the nine member court represent the views of a majority, adding them up produces a holding that the existence of an anonymous sperm donor is irrelevant to the determination of parental rights for the birth mother’s same-sex spouse.  The court reversed a ruling by Judge John S. Grant, III, of the Rankin County Chancery Court, that the failure to obtain a waiver of parental rights from an anonymous sperm donor prevents identifying the birth mother’s spouse as a legal parent of the child.

The various complications in this case arose because the relevant facts played out before marriage equality came to Mississippi as a result of the June 2015 Obergefell decision by the U.S. Supreme Court, and because the retrograde Mississippi legislature has neglected to adopt any statutes concerning who would be considered a parent when a woman or a couple use sperm from an anonymous donor obtained through a sperm bank to conceive a child, leaving the courts to sort this out without any legislative guidance.

The story begins in 1999 when Christina Strickland and Kimberly Jayroe began their relationship.  After several years together, they decided to adopt a child.  The adoption of E.J. was finalized in 2007.  Because Mississippi did not allow joint adoptions by unmarried couples, only Kimberly was the legal adoptive parent of E.J..  In 2009, Christina and Kimberly went to Massachusetts to marry, and Kimberly took Christina’s last name.  The Stricklands then returned to their home in Mississippi, where their marriage was not legally recognized.

In 2010, the Stricklands decided to have a child using “assisted reproductive technology” – A.R.T.  They obtained anonymously donated sperm from a Maryland sperm bank.  Kimberly, whom they jointly decided would be the gestational mother, signed the sperm bank’s form providing that she would “never seek to identify the donor” and that the donor would not be advised of Kimberly’s identity.  In Maryland, Kimberly was then recognized as a married woman and Christina was identified as her spouse in the clinic paperwork.  Both women signed the form acknowledging that they were participating in this process as a married couple and would both be parents of the resulting child.

According to the plurality opinion by Justice David Ishee, “Christina testified that she was involved in and supportive through every step of the conception and pregnancy.”  She also testified that their plan was to go to Massachusetts for the delivery of the baby, so that their marriage would be recognized and both recorded as parents on the birth certificate.  But for medical reasons that did not occur.  Six week before her due date, Kimberly gave birth to the child, Z.S., in an emergency cesarean section surgical procedure in a Mississippi hospital.  Since Mississippi did not recognize the marriage, the birth certificate shows Kimberly as the only parent.

Over the next two years, the women functioned as a family unit, raising both E.J. and Z.S. as co-parents.  Christina stayed home for the first year of Z.S.’s life, while Kimberly worked full time.  Christina testified that both children call her “mom.”  The women separated in January 2013.  Christina continued to visit both children and paid child support, medical and daycare expenses for Z.S.

Now things took a strange twist: On August 13, 2015, while still married to Christina (and at a time, due to the Obergefell decision, when Mississippi would be legally obligated to recognize the marriage is the issue came up in any legal context), Kimberly married a second spouse, whose name and gender are not identified in any of the judge’s opinions, although from the caption of the case it sounds like her new spouse’s surname is Day, since Kimberly is identified in the title of the case as Kimberly Jayroe Strickland Day.

This prompted Christina to file a divorce petition in Harrison County Chancery Court on August 31. On November 16, Kimberly filed a motion for a declaratory judgment that her second marriage was valid and her first marriage “dissolved” in Rankin County Circuit Court.  Christina answered that motion and counterclaimed for divorce and legal and physical custody of both children, who were then living with Kimberly.  She also sought to be named as Z.S.’s legal parent.  The two cases were consolidated in the Rankin County court.  On May 17, 2016, Judge Grant issued an order declaring that Christina and Kimberly’s 2009 Massachusetts marriage was valid and recognized in Mississippi, and therefore that Kimberly’s second marriage was void.

This led the women to negotiate a “consent and stipulation,” in which they agreed that Z.S. was born during their marriage, that they would jointly pay all school expenses for Z.S., and that Kimberly would retain physical and legal custody of E.J., the adoptive child.  They agreed to let the chancery court decide custody, visitation, and child support issues for Z.S., child support and visitation issues for E.J., and the issue of Christina’s parental status toward Z.S.

Judge Grant’s final judgment of divorce, entered on October 16, 2016, ordered Christina to pay child support for both children, and held that Z.S. was born during a valid marriage.  But, he ruled, Z.S. was “a child born during the marriage, but not of the marriage,” so both parties were not considered to be Z.S.’s parents.  The court considered the anonymous sperm donor to be “an absent father” whose legal parentage “precluded a determination that Christina was Z.S.’s legal parent.”  However, Judge Grant held that she was entitled to visitation with Z.S. under a doctrine called “in loco parentis,” which recognizes that somebody who has acted as a parent and bonded with a child as such could be entitled to visitation even though she has no legal relation to the child.

Christina appealed three days later.  At the heart of her argument was that because Z.S. was born while Christina was married to Kimberly, Christina should be deemed the child’s legal parent, and that the anonymous sperm donor, who had no relationship to the child, could not possibly be considered its legal parent.

The Mississippi Supreme Court was in agreement with Christina’s argument that the sperm donor is really out of the picture and should not be considered a parent.  Justice Ishee’s opinion, for himself and Justices Kitchens, King and Beam, declared that Judge Grant’s finding that the sperm donor was the child’s “natural father” was erroneous as a matter of law.  “At the outset,” he wrote, “we are cognizant of the fact that we never before have determined what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm.  As such, this is an issue of first impression.”

That is a startling statement for a state Supreme Court to make in 2018, when donor insemination has been around for half a century and most states have adopted legislation on the subject.  But, wrote Justice Ishee, there is only one provision of Mississippi law relating to donor insemination, a statute providing that a father cannot seek to disestablish paternity when a child was conceived by “artificial insemination” during the marriage to the child’s mother.  That’s it.  However, wrote Ishee, “Reading this provision, in light of the context before us, the logical conclusion – while not explicit – is that the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived from his sperm – irrespective of the sex of the married couple that utilized his sperm to have that child.”

“How,” asked Ishee, “on the one hand, can the law contemplate that a donor is a legal parent who must have his rights terminated, while at the same time prohibiting the non-biological father of a child conceived through AI from disestablishing paternity?  These two policies cannot co-exist.”

Ishee rejected Kimberly’s argument that “all of the non-biological parents of children conceived through AI should be required to terminate the sperm donor’s parental rights and then establish parentage through the adoptive process.”  Ishee’s plurality (4 justices) rejected this process as “intrusive, time-consuming, and expensive,” including a ridiculous waste of time for a judge to have to determine that an anonymous sperm donor, who never intended to be the parent of the child, had “abandoned” the child, thus making the child available for adoption by its mother’s spouse.

When a father is “absent” at the time a child is born, the usual process is to try to locate the missing father and inform him of his obligations, but in the case of an anonymous donor, neither the mother nor the court has the necessary information.  In a case like this one, publishing such a notice in a newspaper – the standard way for courts to give notice to missing parties – makes no sense.

On appeal, Christina raised alternative arguments in support of her claims to be Z.S.’s parent.  First, she asked the court to determine a question not addressed by Mississippi statutes: “Whether children born to married parents who give birth to a child via A.R.T. with sperm from an anonymous donor are entitled to the marital presumption that both spouses are their legal parents.”  Alternatively, she asked “Whether the Supreme Court’s decision in Obergefell v. Hodges requires Mississippi to apply laws relating to the marital presumption of parentage in a gender-neutral manner so as to apply equally to married same-sex couples.”  As another alternative, she asked whether the doctrine of “equitable estoppel” could be used to preclude a birth mother from trying to “disestablish her spouse’s parentage of the couple’s marital child based solely on the absence of a genetic relationship, when the child was born as a result of anonymous donor insemination, to which both spouses consented.” Christina argued that Judge Grant’s order violated constitutionally protected liberty and equality interests by failing to recognize Christina’s parental relationship with Z.S.

Justice Ishee’s opinion ignored all of these arguments except “equitable estoppel,” a doctrine which he explained that Mississippi courts have defined “as the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed.”  Ishee concluded that the doctrine fits this case, and rejected Kimberly’s argument that the decision to have a child through donor insemination was solely hers and the fact that she was married to Christina at the time was irrelevant.  Ishee found that “the evidence in the record belies this assertion,” and cited chapter and verse, right down to the birth announcements the women sent out, which identified the women as “two chicks” who had “hatched” the child.

Since Kimberly represented to Christina all along that Christina would be a parent of Z.S., the doctrine of equitable estoppel blocks her from arguing to the contrary in the context of this divorce proceeding. Judge Grant’s award of “in loco parentis” status to Christina was insufficient, in Ishee’s view, to protect her legitimate interests.  For example, suppose Kimberly married somebody else and petitioned for her new spouse to adopt Z.S.  Christina’s “in loco parentis” status would not entitle her to prevent such an adoption. But if the court recognizes her as a parent, she could.

Thus, without ever mentioning the parental presumption, the plurality opinion, purporting to be speaking for the court as a whole because of the concurring opinions, reversed the chancery court’s ruling that Christina acted “in loco parentis” but “was not an equal parent with parental rights to Z.S.” They sent the case back to Rankin County Chancery Court to determine custody using the multifactorial test that is generally used in a custody contest between legal parents to determine what would be in the best interest of the child, with a “guardian ad litem” appointed to represent Z.S. in the proceedings.

Chief Justice William Waller, Jr., joined “in part” by Justices Randolph, Coleman, Maxwell and Chamberlin, “concurred in part and in the result.” “The narrow issue before the Court,” wrote Waller, “is whether two people legally married who jointly engage in a process of assisted reproduction technology resulting in the natural birth by the gestational mother are both considered parents for purposes of divorce and determination of parental rights of the minor child.  I conclude that they are and that the decision of the chancellor should be reversed and remanded.”  After briefly referring to equitable estoppel, he wrote, “While this Court can use common-law principles to render a decision here, the Legislature should speak directly to the recognition of the legal status of children born during a marriage as a result of assisted reproductive technology.”

Justice Josiah Coleman, concurring in part and dissenting in part, pointed out that the doctrine of “equitable estoppel” had not been argued to Judge Grant, so it should not be a basis for the court’s decision. Thus, he was only joining Judge Waller’s opinion to the extent that Waller agreed that the chancellor erred by according any parental status to the sperm donor.  He would remand the case to the trial court, having reversed that part of the holding, “to allow the parties to present whatever evidence and arguments they wished that accord with the Court’s holding.”  His opinion was joined “in part” by Justices Randolph and Maxwell.

Justice James Maxwell, also concurring in part and dissenting in part, insisted that “what parental rights a sperm donor may or may not have is a policy issue for the Legislature, not the Court,” and since there was no statute on point, “we should be extremely hesitant to draw conclusions about the disestablishment-of-paternity statute, when that statute is wholly inapplicable here. Indeed,” he argued, “it is dangerous for the plurality to weigh in so heavily with what it views to be the best policy, since we all agree the chancellor erroneously inserted this issue into the case.”  His opinion was joined “in part” by Justices Randolph and Coleman.

Finally, Justice Michael Randolph dissented, joined in part by Justices Coleman, Maxwell, and Chamberlin. Randolph said the court should never have addressed equitable estoppel, because that argument was presented for the first time on appeal.  Next, although he agreed that the chancellor erred in declaring an anonymous sperm donor to be the child’s “natural father,” he thought that the “plurality’s blanket assertion that in any case, no anonymous sperm donor will be accorded the burdens and benefits of natural fathers” went too far. He though there was a constitutional issue here, where no attempt had been made to identify and contact the sperm donor.  He also pointed out that the “disestablishment” statute cited by Justice Ishee and then used to support the plurality’s ruling “never was quoted or argued by either party at the trial level,” so also should not have been relied upon in any way by the Supreme Court.  He also found no basis in the record for setting aside the chancellor’s determination that it was “not in the best interest of either child for Christina to have custody.” He pointed out that the chancellor had neglected to address all of the factors specified by Mississippi courts on the record, so the correct approach would be to remand the case to the chancellor “to examine the record and the chancellor’s notes and issue a final decree consistent with this dissent.

This appears to be a victory for Christina, to the extent that enough members of the court agreed with the equitable estoppel approach to make that part of the holding of the court, tossing the case back to the trial court to decide anew whether it is in the best interest of Z.S. for Christina to have joint or primary custody of him as a parent. (Christina is not seeking custody of E.J., just visitation rights.)  But the fractured ruling falls short of the appropriate analysis that would be more beneficial for married LGBT couples in Mississippi: a straightforward acknowledgement that when a married lesbian couple has a child through donor insemination, both of the women will be presumed to be the legal parents of that child, without any need to make a factual showing required for the application of equitable estoppel should any dispute later arise about custody or visitation.  One wonders whether fear of political retribution may have motivate all nine justices to avoid mentioning the parental presumption or invoking Obergefell in support of its application in their various opinions.

Christina is represented by Mississippi attorney Dianne Herman Ellis and Lambda Legal staff attorney Elizabeth Lynn Littrell. Kimberly is represented by Prentiss M. Grant.

Trump Administration Issues New Transgender Military Policy, Attempting To Sidetrack Lawsuits

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

In a move intended to evade existing preliminary injunctions while reaffirming in its essential elements President Trump’s Twitter announcement from last July categorically prohibiting military service by transgender individuals, the Administration issued three new documents on Friday afternoon, March 23, the date that the President had designated in an August 2017 Memorandum for his announced policy to take effect.  A new Presidential Memorandum “revoked” Trump’s August Memo and authorized the Defense and Homeland Security Secretaries to “implement any appropriate policies concerning military service by transgender individuals.”  At the same time, Department of Justice (DOJ) attorneys filed with the federal court in Seattle copies of Defense Secretary James Mattis’s Memorandum to the President and a Department of Defense (DOJ) working group’s “Report and Recommendations” that had been submitted to the White House on February 23, in which Mattis recommended a version of Trump’s transgender ban that would effectively preclude military service for many, perhaps most, transgender applicants and some of those already serving, although the number affected was not immediately clear.

 

Mattis’s recommendation drew a distinction between transgender status and the “medical condition” of gender dysphoria, as defined in the psychiatric diagnostic manual (DSM) generally cited as authoritative in litigation.  Mattis is willing to let transgender people enlist unless they have been diagnosed with gender dysphoria, which the Report characterizes, based heavily on subjective assertions rather than any evidence, as a condition presenting undue risks in a military environment.  Transgender people can enlist if they do not desire to transition and are willing to conform to all military requirements consistent with their biological sex as designated at birth.  Similarly, transgender people currently serving who have not been diagnosed with gender dysphoria can serve on the same basis: that they comply with all requirements for service members of their biological sex.  However, people with a gender dysphoria diagnosis are largely excluded from enlistment or retention, with some individual exceptions, although those currently serving who were diagnosed after the Obama Administration lifted the transgender ban on June 30, 2016, are “exempted” from these exclusions and may serve while transitioning and after transitioning consistent with their gender identity.  (This is pragmatically justified by the investment the military has made in their training, and is conditioned on their meeting all military performance requirement for those in their desired gender presentation.)  Under the recommended policy, Defense Department transition-related health coverage will continue to be available for this “grandfathered” group, but for no others.

 

The March 23 document release took place just days before attorneys from Lambda Legal and the DOJ were scheduled to appear on March 27 in U.S. District Judge Marsha Pechman’s Seattle federal courtroom to present arguments on Lambda’s motion for summary judgment in Karnoski v. Trump, one of the four pending legal challenges to the policy. Lambda’s motion, filed in January, was aimed at Trump’s July tweet and August Memorandum, although it anticipated that the Administration would attempt to come up with some sort of documents to fill the fatal gap identified by four federal district judges when they issued preliminary injunctions last fall: Trump’s unilateral actions were not based on any sort of “expert military judgment,” but rather on his short-term political need to win sufficient Republican votes in the House to pass a then-pending Defense Department spending measure.

 

Based on the obvious conclusion that Trump’s policy was not based on “expert military judgment,” the courts refused to accord it the usual deference that federal courts accord to military regulations and rules when they are challenged in court. Indeed, the only in-depth military study on the subject was that carried out over a period of years by the Obama Administration before it lifted the transgender service ban formally on June 30, 2016, while delaying implementation of new accession standards for transgender enlistees for a year. (Mattis later extended that deadline an additional six months to January 1, 2018.)  With no factual backup, Trump’s across-the-board ban was highly vulnerable to constitutional challenge in light of recent federal court rulings that gender identity discrimination is a form of sex discrimination.  Policies that discriminate because of sex are treated by courts as presumptively unconstitutional, putting the government to the burden of showing that they substantially advance an important government interest, and demanding “exceedingly persuasive” proof.  The “Report and Recommendations” filed in Judge Pechman’s court were clearly devised to attempt to fill that evidentiary gap, despite their disclaimer that the group assembled to study the issues and report their recommendations to Mattis and the President were tasked with an objective policy review.

 

The White House document dump ignited a host of questions. There was no clarity about when the “new” policies recommended by Mattis were intended to go into effect (their implementation would require rewriting and formal adoption in the form of regulations), and there were many questions about how transgender people currently serving would be affected.  Defense Department spokespersons said that the Pentagon would abide by federal law, which at present consists of the preliminary injunctions against the policies announced by Trump last summer, which were supposed to go into effect on March 23, 2018, if they had not been blocked by the courts.

 

Since the preliminary injunctions were all aimed at last summer’s tweets and August Memorandum, were they rendered moot by Trump’s revocation of those policy announcements? Or would the courts see the proposed new policy as essentially a continuation of what Trump had initiated, and thus covered by the preliminary injunctions?  The district judges had all denied requests by the government to stay these injunctions, and two courts of appeals had refused to stay those issued by the judges in Baltimore and Washington, D.C., leading DOJ to desist from seeking a stay of the Seattle and Riverside, California, injunctions.  Complying with those injunctions, the Pentagon allowed transgender people to begin applying to enlist in January, and announced that at least one transgender applicant had completed the enlistment process by February.  Arguably, the preliminary injunctions would apply to any policy of excluding transgender people from military service pending a final resolution of these cases, giving them a broad reading consistent with their analysis of the underlying issues.

 

In a signal of what was coming, DOJ attorneys stoutly combatted the plaintiffs’ demand in the Seattle case for disclosure of the identity of “generals and military experts” with whom Trump claimed in his July tweets to have consulted before announcing his categorical ban, arguing that after Mattis made his recommendation in February, DOJ would not be defending the policy announced in the summer but rather whatever new policy the President decided to announce, relying upon Mattis’ “expert military judgment” and whatever documentation was provided to support it. That led to a series of confrontations over the discovery demand, producing two written opinions by Judge Pechman ordering DOJ to come up with the requested information, and at last provoking a questionable claim of Executive Privilege protecting the identity of those consulted by Trump.  This waited to be resolved at the March 27 hearing as well.

 

The Administration’s strategic moves on March 23 appeared intended to change the field of battle in the pending lawsuits. When they were originally filed, they had a big fat target in Trump’s unilateral, unsupported actions.  By revoking his August Memorandum and “any other directive I may have made” (that is, the tweets from July), Trump sought to remove that target and replace it with a new, possibly more defensible one: a policy recommended and eventually adopted as “appropriate” by Mattis based on his “expert military judgment” in response to the recommendation of his study.  Clearly, the Administration was aiming to be able to rely on judicial deference to avoid having to defend the newly-announced policy on its constitutional merits.

 

The big lingering question is whether the courts will let them get away with this. The policy itself suffers from many of the same constitutional flaws as the one it replaces, but the “Report and Recommendations” – cobbled together in heavy reliance on the work of dedicated opponents to transgender military service – has at least the veneer and trappings of a serious policy review.  The plaintiffs in the existing lawsuit will now need to discredit it in the eyes of the courts, painting it as the litigation advocacy document that it obviously is.

 

Mark Joseph Stern, in a detailed dissection published in “Slate ” shortly after the document release, credited Administration sources with revealing that the process of producing the report had been taken over by Vice President Pence and Heritage Foundation personnel who have been producing articles opposing transgender rights in a variety of contexts. According to Stern’s report, Mattis was opposed to reinstating the transgender ban, but was overruled by the White House and is reacting as a soldier to the dictates of his Commander in Chief, unwilling to spend political capital on this issue.  Tellingly, the Report itself does not provide the names of any of those responsible for its actual composition, setting up a new discovery confrontation between the plaintiffs and DOJ.

 

Some are predicting that the new policy will never go into effect. If the courts refuse to be bamboozled by the façade of reasoned policy-making now presented by the Administration, those predictions may be correct.

Trump Administration Defies Court Disclosure Order on Eve of Previously Announced Trans Military Policy Implementation Date

Posted on: March 23rd, 2018 by Art Leonard No Comments

On August 25, 2017, President Donald J. Trump issued a Memorandum to the Secretaries of Defense and Homeland Security, directing that effective March 23, 2018, transgender people would not be allowed to serve in the military. The Memorandum charged Defense Secretary James Mattis with the task of submitting an implementation plan to the White House by February 21.  Mattis submitted something in writing on February 23, but its contents have not been made public.

Meanwhile, the Department of Justice (DOJ) filed a statement late on March 22 with Judge Marsha J. Pechman of the U.S. District Court in Seattle, Washington, essentially refusing to comply with her Order issued on March 20 to reveal the identity of the “generals” and other “military experts” whom Trump purportedly consulted before his Twitter announcement last July 26 that transgender people would not be allowed to serve in any capacity in the armed forces. Karnoski v. Trump, Case 2:17-cv-01297-MJP (Defendants’ Response to the Court’s March 20, 2018, Order, filed March 22, 2018), responding to Karnoski v. Trump, 2018 US. Dist. LEXIS 45696 (W.D. Wash. March 20, 2018).

Judge Pechman is presiding over a lawsuit filed last fall by Lambda Legal and Outserve-SLDN challenging the policy. Pechman denied DOJ’s motion to dismiss that case and granted a motion by the plaintiffs for a preliminary injunction against the policy going into effect.  In order to grant the injunction, the judge had to conclude that it was likely the policy would be found to be unconstitutional and that an injunction pending the outcome of the case was necessary to protect the legitimate interests of people who would be adversely affected by the policy.  Karnoski v. Trump, 2017 U.S. Dist. LEXIS 167232 (W.D. Wash. Oct. 10, 2017), motion to stay preliminary injunction denied, 2017 U.S. Dist. LEXIS 167232, 2017 WL 6311305 (W.D. Wash. Dec. 11, 2017); 2017 U.S. Dist. LEXIS 213420 (W.D. Wash. Dec. 29, 2017).

Then discovery in the case began, and DOJ refused in February to comply with the plaintiffs’ request for the identity of the “generals” and “experts” Trump claimed in his tweet to have consulted. DOJ argued that their defense in the case would not rely on any testimony or documentation from such individuals, since they would not be defending the August 25 policy announcement, but rather some new policy yet to be announced after Mattis submitted his recommendations.

Judge Pechman, ruling on a requested order to compel discovery filed by the plaintiffs, observed in an opinion issued on March 14 that “this case arises not out of any new or future policy that is in the process of being developed, but rather out of the current policy prohibiting military serve by openly transgender persons, announced on Twitter by President Trump on July 26, 2017, and formalized in an August 25, 2017 Presidential Memorandum.”  Karnoski v. Trump, 2018 U.S. Dist. LEXIS 43011 (W.D. Wash., March 14, 2018).

She continued, “Defendants cannot reasonably claim that there are no individuals likely to have discoverable information and no documents relevant to their claims and defenses regarding the current policy. President Trump’s own announcement states “after consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow . . . Transgender individuals to serve in any capacity in the U.S. Military.”

Judge Pechman asked, “Which Generals and military experts were consulted? Which Service Chiefs and Secretaries provided counsel?  What information did they review or rely upon in formulating the current policy?  Were the court to credit Defendants’ Initial Disclosures and Amended Disclosures, the answer to these questions apparently would be ‘none.’”  The judge gave DOJ five days to comply.

DOJ responded by seeking “clarification” and raising the prospect that the president could invoke “executive privilege” to refuse to comply with the discovery request, in order to protect the confidentiality of presidential deliberations.

Responding to this argument early on March 20, Pechman issued a new opinion, 2018 U.S. Dist. LEXIS 45696. She wrote, “The Court cannot rule on a ‘potential’ privilege, particularly where the allegedly privileged information is unidentified,” and pointed out that DOJ had not invoked executive privilege in its earlier incomplete responses to the plaintiffs’ discovery requests, or in any of their prior motions to the court.  She pointed out that under the Federal Rules of Civil Procedure, “in order to assert privilege, a party must ‘expressly make the claim’ and ‘describe the nature of the documents, communications, or tangible things not produced or disclosed – and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”

Furthermore, she noted, “While Defendants claim they do not intend to rely on information concerning President Trump’s deliberative process, their claim is belied by their ongoing defense of the current policy as one involving ‘the complex, subtle, and professional decisions as to the composition . . . of a military force . . .’ to which ‘considerable deference’ is owed.” Of course, claiming that the court should “defer” to “professional decisions” requires showing that this policy was adopted as a result of “professional decisions” and not based solely on the President’s political concerns.

The refusal to disclose what advice the president relied upon in announcing this policy leads to the inevitable conclusion either that such consultations did not take place, as Judge Pechman intimated on March 14, or if they did the president was likely acting against the advice of his generals and military experts.  Anybody reasonably informed on trends in the federal courts would have concluded by last summer that a revived ban on transgender service would be seriously vulnerable to constitutional challenge, and military commanders with a full year of experience in having openly transgender personnel would know that the policy implemented by the Obama Administration effective the beginning of July 2016 had not led to any problems with good order, morale, or substantial health care costs.

Judge Pechman gave DOJ until 5 p.m. Pacific Daylight Time on March 22 to comply with her discovery order. DOJ submitted its statement refusing to do so shortly before that deadline, once again arguing that because they did not intend to defend last summer’s policy pronouncements, they were standing on their position that they were not required to make any of the disclosures in dispute since they would not be calling any witnesses, documents or studies for the purpose of defending those policies.

As this is being written on March 23, there has been no indication by the White House that an implementation policy or a revised version of last summer’s policy is being announced. This is not surprising, since three other federal district judges as well as Judge Pechman issued preliminary injunctions last year against implementation of the policy that was to go into effect on March 23, and two federal courts of appeals (the D.C. Circuit and the 4th Circuit) rejected petitions by the Justice Department to stay two of the preliminary injunctions.

In fact, in light of the injunctions the Defense Department notified its recruitment staff in December about the criteria for enlistment of transgender applicants that would go into effect on January 1, 2018, and that process did go into effect, with a subsequent announcement by the Defense Department that at least one transgender applicant, whose name was not disclosed, had completed the enlistment process, marking the first time that an openly transgender individual has been allowed to enlist.

In a slippery move, DOJ may be trying to render the existing preliminary injunctions and lawsuits irrelevant by arguing that the policy announced in the August 25 Memorandum has never gone into effect and that, pursuant to Mattis’s undisclosed recommendations, it never will.  Meanwhile, thousands of transgender military personnel find their employment status in a state of uncertainty, as do transgender reserve members or military service academy students working towards graduating and joining the active forces.

Perhaps some hint of what the new policy will be can be found in the Defense Department’s enlistment policies announced in December, which would preclude enlisting transgender individuals unless they are medically certified to have been “stable” with respect to their gender identity for at least 18 months, and thus unlikely to seek to transition while in military service, either because they have already completely transitioned from the gender identified at birth to their currently identified gender or presumably have foresworn any intent to transition while in the military.

This disclosure controversy relates back to the likely motivation behind Trump’s initial July tweet, which came shortly after the Houses of Representatives had rejected an amendment to a pending Defense spending bill that would have blocked any spending for “sex reassignment surgery” for military personnel. There were reports at the time that congressional sponsors of that amendment warned the President that he did not have sufficient Republican votes in the House to pass the bill in the absence of such a provision.  Trump’s apparent solution to his immediate political problem was to bar all transgender military service, which would remove the possibility of any serving member seeking to access the military health care budget to pay for their transition, since such a request would lead to their immediate discharge under the policy he announced.  In other words, DOJ is attempting to bury the fact that Trump probably lied in his Tweet when he intimated that this change of policy was the result of recommendations from generals and military experts, but their stonewalling leads to Judge Pechman’s obvious conclusion stated on March 14.

U.S. Court Orders Idaho to Issue Birth Certificates to Transgender Applicants

Posted on: March 11th, 2018 by Art Leonard No Comments

U.S. Magistrate Judge Candy Dale (D. Idaho), has ordered the state of Idaho to allow transgender people born there to obtain birth certificates correctly identifying them according to their gender identity.    F.V. & Martin v. Barron, 2018 WL 1152405, 2018 U.S. Dist. LEXIS 36550.  Once Idaho has complied with Judge Dale’s March 5 Order, the only states where transgender people can’t get appropriate new birth certificates will be Ohio, Tennessee, and Kansas.  Also, the Commonwealth of Puerto Rico, a U.S. territory, does not provide such birth certificates. The other 46 states and the District of Columbia do, although the criteria for getting them vary from state to state.

Judge Dale ruled in a lawsuit filed by Lambda Legal on behalf of two transgender women born in Idaho, whose birth certificates identify them as male and use the names their parents gave them at birth.

One, F.V., states that “she knew from approximately 6 that she was female” and she “began to live openly as a female when she was 15 years old” and has done so since.  She has transitioned “both medically and socially,” and has gotten a legal name change, which she then used to get a new driver’s license, passport, and social security card.  However, when she contacted the Idaho Bureau of Vital Records and Health Statistics in the Department of Health and Welfare to get a new birth certificate, she was told that the Bureau “does not consider such applications.”

According to Judge Dale’s opinion, “F.V. asserts that living with a birth certificate declaring she is male is a permanent and painful reminder that Idaho does not recognize her as she is – as a woman.  Beyond this, she states that presenting an identity document that conflicts with her gender identity is both humiliating and dangerous: it puts her at risk of violence by disclosing against her will and intentions that she is a transgender individual.”

The other plaintiff, Dani Martin, tells a similar story, having known from an early age that she was female despite her birth name and anatomy.  However, writes Judge Dale, “fear of rejection and bullying prevented her from coming out when she was younger.”  With support from her spouse and family she began to transition in 2014.  She has lived as a woman since then, taking steps both medically and socially to “bring her body and expression of gender in line with her female identity.”

Like F.V., Dani has legally changed her name and obtained a new driver’s license and social security card, but the state’s policy blocked her from getting a new birth certificate, which, she claims, “has exposed her to harassment and embarrassment,” and has “prevented her from making the change in other important records.”

Lambda’s complaint charged that Idaho’s policy against issuing new birth certificates violates the 1st and 14th Amendments of the Constitution, citing both the due process and equal protection clauses.  Judge Dale decided to confine her ruling to the Equal Protection claim.

Any law or policy that systematically treats people differently based on any characteristic requires a rational, non-discriminatory justification.  In this lawsuit, the state conceded that there was no rational basis for refusing to issue the requested certificates, but such changes are not specifically authorized under the state’s vital statistics statute, and evidently the state administration was either unwilling to ask the legislature to change that or calculated – probably correctly – that any such request would be futile.  Theoretically, the administration could change the policy by adopting a new rule, but was not willing to take whatever political heat that would generate.  In effect, the state’s response to the lawsuit was to ask the court to issue an order, so that state officials could refute any criticism by putting the “blame” for this change on the court.

Idaho does issue new birth certificates for a variety of reasons, including correcting factual errors made at birth, adding listing of fathers for people born to unmarried women, in response to later acknowledgements or determinations of paternity, and changing names and paternal and maternal information as a result of adoptions.  In those cases, “the vital statistics laws require the amendments not be marked or noted on the birth certificate,” but a “catch-all” provision in the law, which applies to any birth certificate changes that are not specifically authorized by the statute, says that amendments made under the “catch-all” provision “must be described on the birth certificate.”  Since including such information on a new certificate would effectively “out” any transgender person presenting their certificate for any reason, the lawsuit sought to ensure that the requested certificates appear completely ordinary on their face, with no indication of amendment or special circumstances, and Judge Dale incorporate this in her order.

The only real dispute between the parties was whether the court should go beyond the state’s concession that it had no rational policy justification for an outright denial of new birth certificates for transgender people, to determine whether gender identity itself is a “suspect classification,” imposing a high level of justification for the challenged policy.  The state urged Judge Dale not to do that,  but the plaintiffs, concerned about the possibility that the state might come up with a new rule imposing costly barriers to obtaining the new licenses – such as a requirement for complete surgical transition, which is still the rule in many other states – asked Judge Dale to determine that a more demanding level of judicial review would apply in evaluating any such rule.

Siding with the plaintiffs, Dale extended her opinion to provide a detailed discussion of gender identity and its status under federal constitutional law, concluding that heightened scrutiny should be applied.  After reviewing advances in the understanding of human sexuality, she wrote, “to conclude discrimination based on gender identity or transsexual status is not discrimination based on sex is to depart from advanced medical understanding in favor of archaic reasons.”  Under binding Supreme Court precedents, discrimination because of sex requires heightened scrutiny.

Furthermore, Judge Dale found, gender identity or transgender status should be treated the same way that the 9th Circuit (whose jurisdiction includes Idaho) has treated sexual orientation or homosexual status.  “The pervasive and extensive similarities in the discrimination faced by transgender people and homosexual people are hard to ignore,” she wrote. “(1) Transgender people have been the subject of a long history of discrimination that continues to this day; (2) transgender status as a defining characteristic bears no ‘relation to ability to perform or contribute to society;’ (3) transgender status and gender identity have been found to be ‘obvious, immutable, or distinguishing characteristics;’ and (4) transgender people are unarguably a politically vulnerable minority.”

“This is especially true in Idaho,” the judge commented, “where transgender people have no state constitutional protections from discrimination based on their transgender status in relation to employment decisions, housing, and other services.  Therefore, transgender people bear all of the characteristics of a quasi-suspect class and any rule developed and implemented by IDHW should withstand heightened scrutiny review to be constitutionally sound.”   This would mean that any challenged requirement would have be supported by an important government interest that the requirement is shown to have substantially advanced.  Under this standard, it is unlikely that a surgical requirement would withstand judicial review, as many other states (and countries) have come to agree that imposing such a requirement poses an unnecessary barrier to the ability of many transgender people to obtain appropriate official documentation, without serving any significant public purpose.

Judge Dale pointed out that the state already has in place an established procedure for dealing with amendments to birth certificates, so “allowing such amendments would pose no new burden on Defendants,” since “Idaho vital statistics laws allow IDHW to create and implement a constitutionally-sound rule, and IDHW already has in placed processes and procedures to  facilitate the amendment of birth certificates in the ordinary course of its everyday activities.”  Thus, she found it appropriate to issue an injunction, giving the state up to one month to “begin accepting applications made by transgender people to change the sex listed on their birth certificates,” and specifying that the new certificates “must not include record of amendment to the listed sex” and should use the new legal name of the applicant.

The plaintiffs are represented by Lambda Legal attorneys Peter Renn and Kara Ingelhart, with pro bono local counsel Monica G. Cockerille of Boise, Idaho.

Oregon Court of Appeals Rules against Baker in “Gay Wedding Cake” Case

Posted on: December 31st, 2017 by Art Leonard No Comments

A unanimous three-judge panel of the Court of Appeals of Oregon affirmed a ruling by the Oregon Bureau of Labor and Industries (BOLI) that Melissa and Aaron Klein, doing business as Sweetcakes by Melissa, violated the state’s public accommodations law by refusing to provide a wedding cake for Rachel and Laurel Bowman-Cryer.  The ruling upheld an award of $135,000 in damages, rejecting the Kleins’ argument that this application of the state law to them violates their 1st Amendment rights.  However, the court overruled the BOLI’s determination that the Kleins’ public remarks in connection with this case had also violated a separate section of the law forbidding businesses to announce in advance that they will discriminate in the future.  Judge Chris Garrett wrote for the panel.

This case is, for all practical purposes, a virtual clone of the Colorado case, Masterpiece Cakeshop, which was argued at the U.S. Supreme Court on December 5, 2017.

Rachel and Laurel first met in 2004 and decided to marry in 2012. Rachel and her mother, Cheryl, went to a Portland bridal show as part of their wedding planning, and visited Melissa Klein’s booth at the show.  Sweetcakes by Melissa had designed, created and decorated a wedding cake for Cheryl’s wedding two years before, and Rachel and Cheryl told Melissa that they would like to order a cake from her.  A cake-testing appointment was set up for January 17, 2013.  Rachel and Cheryl visited the bakery shop, in Gresham, for their appointment.  Melissa was at home performing child care, so the appointment was with her husband and co-proprietor, Aaron.  During the tasting, Aaron asked for the names of the bride and groom, and was told there were two brides, Rachel and Laurel.  “At that point,” wrote Judge Garrett, “Aaron stated that he was sorry, but that Sweetcakes did not make wedding cakes for same-sex ceremonies because of his and Melissa’s religious convictions.  Rachel began crying, and Cheryl took her by the arm and walked her out of the shop.  On the way to their car, Rachel became ‘hysterical’ and kept apologizing to her mother, feeling that she had humiliated her.”

In their car, Cheryl assured Rachel that they would find somebody else to make the cake. After driving a short distance, Cheryl turned back and re-entered the bakery by herself to talk with Aaron.  “During their conversation,” wrote Judge Garrett, “Cheryl told Aaron that she had previously shared his thinking about homosexuality, but that her ‘truth had changed’ as a result of having ‘two gay children.’  In response, Aaron quoted a Bible passage from the Book of Leviticus, stating, ‘You shall not lie with a male as one lies with a female; it is an abomination.’  Cheryl left and returned to the car, where Rachel had remained, ‘holding [her] head in her hands, just bawling.”  Cheryl telling Rachel that Aaron had called her an “abomination” didn’t make things any better.  Rachel later stated that “it made me feel like they were saying God made a mistake when he made me, that I wasn’t supposed to be, that I wasn’t supposed to love or be loved or have a family or live a good life and one day go to heaven.”  When they got home and told Laurel what had happened, she recognized the “abomination” reference from Leviticus and “felt shame and anger.  Rachel was inconsolable, which made Laurel even angrier.”  It was Laurel who filed an online complaint with the Oregon Department of Justice, but later she filed a complaint with BOLI, as did Rachel.

News of the complaints generated a wave of media attention, which resulted in death threats and adverse attention to Rachel and Laurel as well as to the Kleins. Ultimately, BOLI’s investigation concluded that the Kleins violated two sections of the public accommodations law, one forbidding discrimination by businesses in providing goods and services because of the sexual orientation of customers, the other, based on statements that the Kleins had made about the case, as well as a sign they posted in their bakery, that they violated a provision making it unlawful for a business to announce its intent to discriminate against customers because of their sexual orientation.  An administrative law judge (ALJ) sustained the first but not the second, finding that the comments in question related to the Klein’s position on this case and was not a general announcement of intent to discriminate in the future.  At the agency level, however, BOLI, disagreeing with the ALJ on this point, ruled that both provisions had been violated, and the Kleins appealed to the Court of Appeals.  The ALJ and BOLI agreed on an award of $135,000 in damages to Rachel and Laurel, to compensate them for the mental, emotional or physical suffering sustained because of the discrimination.  The agency rejected a claim for additional damages for mental, emotional or physical suffering stemming from the media and public response to their filing of the discrimination charges against the Kleins.

The first issue for the court was to determine whether the Kleins were correct in arguing that they had not violated the statute because, as they contended, their business does not discriminate against people because of their status as gay, but rather, in this instance, was declining to “facilitate the celebration of a union that conveys a message about marriage to which they do not subscribe and that contravenes their religious beliefs.” The court rejected this attempt to skirt the issue, commenting that “there is no reason to believe that the legislature intended a ‘status/conduct’ distinction specifically with regard to the subject of ‘sexual orientation.’”
Judge Garrett pointed to the state’s passage of the Oregon Family Fairness Act, which specifically provides that same-sex couples should be entitled to the same rights and privileges of different-sex couples. “The Kleins have not provided us with any persuasive explanation for why the legislature would have intended to grant equal privileges and immunities to individuals in same-sex relationships while simultaneously excepting those committed relationships from the protections of” the public accommodations law. The court pointed out that “under the distinction proposed by the Kleins, owners and operators of businesses could continue to oppress and humiliate black people simply by recasting their bias in terms of conduct rather than race.  For instance, a restaurant could refuse to serve an interracial couple, not on account of the race of either customer, but on account of the conduct – interracial dating – to which the proprietor objected.  In the absence of any textual or contextual support, or legislative history on that point, we decline to construe [the law] in a way that would so fundamentally undermine its purpose.”

Indeed, wrote the court, “The Kleins refused to make a wedding cake for the complainants precisely and expressly because of the relationship between sexual orientation and the conduct at issue (a wedding).  And, where a close relationship between status and conduct exists, the Supreme Court has repeatedly rejected the type of distinction urged by the Kleins.”  Judge Garrett cited the Supreme Court’s 2010 ruling, upholding the University of California-Hasting’s refusal to extend official recognition to a Christian Legal Society chapter whose membership policies excluded gay people, in which Justice Ruth Bader Ginsburg, writing for the Court, made this point, as well as Lawrence v. Texas, the Texas sodomy law case, where Justice Kennedy wrote for the Court that making gay conduct a crime was “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

Turning to the constitutional challenges, the court rejected both the free speech and free exercise of religion arguments. For one thing, the court found, while conceding there would be an element of artistic expression and creativity in the process of making a wedding cake, this did not present the type of free speech issues that would merit strict scrutiny from the court.  Rather, the court found, the Supreme Court’s public accommodations jurisprudence treated such laws as neutral laws intended to achieve a legitimate purpose of extending equal rights to participate in the community, and not specifically targeted on particular political or religious views held by a particular business person.  The Kleins premised their arguments largely on the Supreme Court’s Hurley (St. Patrick’s Day Parade) and Dale (Boy Scouts) cases, in which the Supreme Court held that application of a public accommodations law to require an organization or association to include gay people would have to yield to the free expression rights of an organization that has a particularly expressive purpose.  They also focused on the famous flag salute cases from World War II and other cases in which the Supreme Court ruled that the government cannot compel private individuals to express a message dictated by the government.

Wrote Judge Garrett, “We must decide whether the Kleins’ cake-making activity is sufficiently expressive, communicative, or artistic so as to implicate the First Amendment, and, if it is, whether BOLI’s final order compelling the creation of such expression in a particular circumstance survives First Amendment scrutiny.” Reviewing the way the Kleins produced customized wedding cakes for their customers, the court found, “the Kleins’ argument that their products entail artistic expression is entitled to be taken seriously.  That being said, we are not persuaded that the Kleins’ wedding cakes are entitled to the same level of constitutional protection as pure speech or traditional forms of artistic expression.  In order to establish that their wedding cakes are fundamentally pieces of art, it is not enough that the Kleins %believe% them to be pieces of art.  For First Amendment purposes, the expressive character of a thing must turn not only on how it is subjectively perceived by its maker, but also on how it will be perceived and experienced by others.  Here, although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience %any% wedding cake that the Kleins create predominantly as ‘expression’ rather than as food.”

Further, the court found that it would be a different case “if BOLI’s order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer (‘God Bless This Marriage,’ for example) that they found offensive or contrary to their beliefs.” Then an articulated message would be conveyed, and the First Amendment issue would be much stronger.  Responding to the Kleins’ concern that the wedding cake communicates a “celebratory message” about the wedding, which they did not wish to communicate, the court pointed out that “the Kleins have not raised a nonspeculative possibility that anyone attending the wedding will impute that message to the Kleins.”  In short, wedding guests will not respond to seeing the cake at the reception by thinking that the baker is “celebrating” or “approving” this wedding.  There is nothing in the law that requires the Kleins to formally endorse same-sex marriages.

However, having found that there is at least some First Amendment free speech interest involved, the court applied “intermediate scrutiny” and found that the state had a compelling interest “both in ensuring equal access to publicly available goods and services and in preventing the dignitary harm that results from discriminatory denials of service. That interest is no less compelling with respect to the provision of services for same-sex weddings,” wrote Garrett.  “Indeed, that interest is particularly acute when the state seeks to prevent the dignitary harms that result from the unequal treatment of same-sex couples who choose to exercise their fundamental right to marry,” as established in Obergefell, the Supreme Court’s marriage equality decision.

The court concluded that “any burden imposed on the Kleins’ expression is no greater than essential to further the state’s interest,” pointing out that “BOLI’s order does not compel the Kleins to express an articulable message with which they disagree. … Given that the state’s interest is to avoid the ‘evil of unequal treatment, which is the injury to an individual’s sense of self-worth and personal integrity,’” wrote Garrett, quoting from a prior Oregon Supreme Court case, “there is no doubt that interest would be undermined if businesses that market their goods and services to the ‘public’ are given a special privilege to exclude certain groups from the meaning of that word.”

Turning to the free exercise of religion point, the court noted that the Supreme Court held in Employment Division v. Smith that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribed (or prescribes) conduct that his religion prescribes (or proscribes).”  The “incidental effect” on religion of such laws does not violate the 1st Amendment.

The court devoted most of its analysis on this point to distinguishing cases offered by the Kleins as exceptions to this rule. All of those cases involved special circumstances where it could be shown that although the laws in question were neutral on their face, they had been intended by the legislature to apply to particular religious practices and were thus not really “neutral to religion.”  The Kleins also pushed a “hybrid rights” theory, mentioned in passing in the Smith case, under which when a party’s claim arises under two different constitutional rights guarantees (in this case speech and religious exercise) the burden of justification on the state should be raised to strict scrutiny.  The court observed that apart from the passing mention in Smith, that concept had not been developed by the Supreme Court, had been rejected by many other courts, and specifically had never been adopted by the Oregon Supreme Court in construing the state’s constitution.

The court rejected the Kleins’ arguments that recognizing a limited or narrow exception for businesses whose owners had religious objections to same-sex marriage would have only a “minimal” effect on “the state’s antidiscrimination objectives,” pointing out that “those with sincere religious objections to marriage between people of different races, ethnicities, or faiths could just as readily demand the same exemption. The Kleins do not offer a principled basis for limiting their requested exemption in the manner that they propose, except to argue that there are ‘decent and honorable’ reasons, grounded in religious faith, for opposing same-sex marriage, as recognized by the United States Supreme Court in Obergefell.  That is not in dispute.  But neither the sincerity, nor the religious basis, nor the historical pedigree of a particular belief has been held to give a special license for discrimination,” wrote Garrett.

The court rejected the Kleins’ claim for free speech and religious exemptions under the Oregon Constitution, pointing out that they had not advanced any additional arguments peculiar to Oregon constitutional jurisprudence that would justify going beyond the federal constitutional analysis in this case. The court also rejected the argument that BOLI’s ruling should be set aside because BOLI’s Commissioner had made public comments about the case before voting to affirm the ALJ’s ruling and award the damages.  The court found that the commissioner’s comments “fall short of the kinds of statements that reflect prejudgment of the facts or an impermissibly closed-minded view of law or policy so as to indicate that he, as a decision maker, cannot be impartial.”  The court rejected the Kleins’ objection to the damage award, finding that the ALJ and BOLI had scrupulously limited the award to damages flowing from the Kleins’ discrimination and had an adequate basis in the trial record to award the amounts in question, which were not out of line with awards in other cases.

However, the court concluded that BOLI erred by failing to affirm the ALJ’s conclusion that the Kleins had not violated a section of the law that forbids any business “to publish, circulate, issue or display… any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of. . . sexual orientation.” The court, agreeing with the ALJ but not with BOLI, found that the Kleins’ public comments about their determination to defend this case and to adhere to their religious beliefs did not specifically violate this provision.

The Kleins were careful in wording the sign they put up at their bakery and in their comments on Facebook and in the press to avoid stating that they would discriminate because of a customer’s sexual orientation. Their position throughout this case is that they were not engaging in such discrimination.  The court was not willing to interpret this section of the statute as exposing businesses to additional liability for stating publicly their belief that their past action had not violated the law.  Since BOLI’s calculation of damages awarded to Rachel and Laurel did not include any amount for violation of this section, however, the reversal of this part of the decision did not require any reduction in damages.

The Kleins were represented in this appeal by attorneys from several law firms, some specializing in championing socially conservative causes, so it would not be surprising to see them file an appeal with the Oregon Supreme Court. The Oregon attorney general’s office represented BOLI.  Lambda Legal filed an amicus brief on behalf of Rachel and Laurel.  A long list of liberal religious associations and organizations joined in an amicus brief filed by pro bono attorneys in support of BOLI’s ruling, and amicus briefs were also filed by the ACLU and Americans United for Separation of Church and State.

Two Federal Judges Deal Setbacks to Trump’s Transgender Military Ban

Posted on: December 11th, 2017 by Art Leonard No Comments

Federal district judges on opposite coasts dealt setbacks to President Donald J. Trump’s anti-transgender military policy on December 11.  U.S. District Judge Colleen Kollar-Kotelly of the District Court in Washington, D.C., rejected a motion by the Justice Department in Doe v. Trump to stay her preliminary injunction that requires the Defense Department to allow transgender people to apply to join the service beginning January 1, 2018.  And U.S. District Judge Marsha J. Pechman refused to dismiss the complaint in Karnoski v. Trump, a lawsuit challenging the anti-transgender service ban, while granting the plaintiffs’ motion for a preliminary injunction against implementation of the policy.  Also on December 11, U.S. District Judge Jesus G. Bernal in Los Angeles heard arguments in support of a motion for preliminary injunction in Stockman v. Trump, a fourth lawsuit challenging the ban.

Judge Kollar-Kotelly’s decision was predictable, given her October 30 ruling granting the preliminary injunction and a more recent ruling “clarifying,” at the request of the Justice Department, that she really intended to require the Defense Department to allow transgender individuals to begin enlisting on January 1.  The Justice Department incredibly claimed that this January 1 deadline created an emergency situation, but their argument was significantly undercut by reports last week that the Pentagon had, in response to the judge’s earlier Order, put into motion the steps necessary to comply.

In support of its motion for a stay, DOJ presented a “declaration” from Acting Deputy Assistant Secretary of Defense for Military Personnel Policy Lernes J. Hebert, who claimed that implementing the court’s order on January 1 would “impose extraordinary burdens on the Department and the military services” and that “notwithstanding the implementation efforts made to date, the Department still would not be adequately and properly prepared to begin processing transgender applicants for military service by January 1, 2018.”

The judge found this unconvincing, pointing out that DoD has had almost a year and a half to prepare for this eventuality, dating back to former Secretary of Defense Ashton Carter’s June 2016 Directive pointing to a July 1, 2016, implementation date for allowing transgender people to enlist, which was extended for six months by Secretary James Mattis at the end of June 2017.  “Moreover,” she wrote, “the Court issued the preliminary injunction in this case approximately six weeks ago, and since then Defendants have been on notice that they would be required to implement the previously established policy of beginning to accept transgender individuals on January 1, 2018.  In other words, with only a brief hiatus, Defendants have had the opportunity to prepare for the accession of transgender individuals into the military for nearly one and a half years.”

In opposition to the motion, the plaintiffs had submitted a declaration by Dr. George Richard Brown, who has trained “approximately 250 medical personnel working in Military Entrance Processing Stations (MEPS) throughout the military” in anticipation of implementing the accessions policy, and a declaration by former Secretary of the Navy Ray Mabus, Jr., who stated that “the Services had already completed almost all of the necessary preparation for lifting the accession ban” as long as a year ago.

As to the so-called emergency nature of this motion, Judge Kollar-Kotelly wrote, “As a final point, the Court notes that Defendants’ portrayal of their situation as an emergency is belied by their litigation tactics. The Court issued its preliminary injunction requiring Defendants to comply with the January 1, 2018 deadline on October 30, 2017.  Defendants did not file an appeal of that decision until November 21, 2017, and did not file the current motion for a stay of that deadline until December 6, 2017, requesting a decision by noon today, December 11, 2017.  There is also no indication that Defendants have sought any sort of expedited review of their appeal, the first deadlines in which are not until January, 2018.  If complying with the military’s previously established January 1, 2018 deadline to begin accession was as unmanageable as Defendants now suggest, one would have expected Defendants to act with more alacrity.”

However, the judge’s denial of the stay may prove more symbolic than effective in terms of allowing transgender people to actually enlist, since she noted that the policy that will go into effect on January 1 presents significant barriers to enlistment on medical grounds.  The Pentagon is planning to require that transgender applicants show, generally speaking, that for at least 18 months prior to their applications they have been “stable” with regard to their gender identity.  Nobody can enlist, for example, if they have undergone gender confirmation surgery within the past 18 months, since the medical standard will require that they have been “stable” for at least 18 months after the last surgical treatment.  Similarly, anybody first diagnosed as having gender dysphoria within the previous 18 months cannot enlist, since they will have to have certified by a licensed medical provider that they have been “stable without clinically significant distress or impairment” for at least 18 months since their diagnosis.  And those under treatment, for example taking hormone therapy, will have to show they have been stable for at least 18 months since commencing therapy.  In addition, of course, applicants will have to meet all medical requirements applicable to everybody regardless of gender identity, and it is well-known that a substantial percentage of potential enlistees are disqualified on physical/medical grounds.

As to the government’s “extraordinary burden” argument, Judge Kollar-Kotelly noted, “There is no evidence in the record that would suggest that the number of transgender individuals who might seek to accede on January 1, 2018, would be overwhelmingly large.  To the contrary, although the Court understands that there may be some dispute as to the amount of transgender individuals in the general population and in the military, the record thus far suggests that the number is fairly small.”

Plaintiffs in Doe v. Trump are represented by National Center for Lesbian Rights and GLAD.

The plaintiffs in Karnoski v. Trump, pending in the district court in Seattle, are represented by Lambda Legal and Outserve/SLDN.  They alleged four theories for challenging the policy: equal protection, substantive due process (deprivation of liberty), procedural due process, and freedom of speech.  Judge Pechman found that three out of these four theories were sufficiently supported by the complaint to deny the Justice Department’s motion to dismiss the case, although she granted the motion as to the procedural due process claim.  She efficiently disposed of various procedural objections to the lawsuit, finding that all of the plaintiffs have standing to proceed, including the organizational plaintiffs and the State of Washington, whose motion to intervene as a plaintiff had previously been granted, and that the dispute is ripe for judicial resolution because of the imminent implementation of Trump’s policy directives.

As had two district judges before her, Judge Pechman cut and pasted screen captures of the president’s July 26 tweet announcing the policy into her opinion, and used particularly cutting language to reject DOJ’s argument that the president’s policy decision was entitled to the kind of judicial deference usually accorded to military policy decisions. “Defendants rely on Rostker v. Goldberg (1981). In Rostker, the Supreme Court considered whether the Military Selective Service Act (MSSA), which compelled draft registration for men only, was unconstitutional.  Finding that the MSSA was enacted after extensive review of legislative testimony, floor debates, and committee reports, the Supreme Court held that Congress was entitled to deference when, in ‘exercising the congressional authority to raise and support armies and make rules for their governance,’ it does not act ‘unthinkingly’ or ‘reflexively and not for any considered reason.’  In contrast, the prohibition on military service by transgender individuals was announced by President Trump on Twitter, abruptly and without any evidence of considered reason or deliberation.  The policy is therefore not entitled to Rostker deference.  Because Defendants have failed to demonstrate that the policy prohibiting transgender individuals from serving openly is substantially related to important government interests, it does not survive intermediate scrutiny.”  In a footnote, the judge added, “For the same reasons, the policy is also unlikely to survive rational basis review.”

The court concluded that all the tests for preliminary injunctive relief established by the 9th Circuit Court of Appeals (Washington State is within the 9th Circuit) had easily been satisfied.  Her Order “enjoins Defendants and their officers, agents, servants, employees, and attorneys, and any other person or entity subject to their control or acting directly or indirectly in concert or participation with Defendants from taking any action relative to transgender individuals that is inconsistent with the status quo that existed prior to President Trump’s July 26, 2017 announcement.  This Preliminary Injunction shall take effect immediately and shall remain in effect pending resolution of this action on the merits or further order of this Court.”

Thus, Judge Pechman issued the third preliminary injunction against Trump’s anti-transgender policy, after those issued by Judge Kollar-Kotelly on October 30 and U.S. District Judge Marvin J. Garbis in Stone v. Trump on November 21 in the District Court in Maryland. All three preliminary injunctions block the discharge of transgender service members while the case is pending and require the Pentagon to allow transgender people to begin enlisting on January 1.  The injunctions by Judge Garbis and Judge Pechman also block the administration from refusing to fund transition-related health care (including surgery).  In the face of this united front from the three judges, it seems likely that Judge Bernal will eventually issue a similar order, so attention will turn to the Courts of Appeals to which DOJ has appealed the first ruling and presumably will soon appeal the others.

Supreme Court Denies Review in Title VII Sexual Orientation Discrimination Case

Posted on: December 11th, 2017 by Art Leonard No Comments

The U.S. Supreme Court announced on December 11 that it will not review a decision by a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals, which ruled on March 10 that a lesbian formerly employed as a security guard at a Georgia hospital could not sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964.  The full 11th Circuit denied a motion to reconsider the case on July 10, and Lambda Legal, representing plaintiff Jameka Evans, filed a petition with the Supreme Court seeking review on September 7.  Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), rehearing en banc denied, 7/6/2017, cert. denied, 2017 WL 4012214 (12/11/2017).

At the heart of Lambda’s petition was an urgent request to the Court to resolve a split among the lower federal courts and within the federal government itself on the question whether Title VII, which bans employment discrimination because of sex by employers that have at least 15 employees, can be interpreted to ban discrimination because of sexual orientation.

Nobody can deny that members of Congress voting on the Civil Rights Act in 1964 were not thinking about banning sexual orientation discrimination at that time, but their adoption of a general ban on sex discrimination in employment has been developed by the courts over more than half a century to encompass a wide range of discriminatory conduct reaching far beyond the simple proposition that employers cannot discriminate against an individual because she is a woman or he is a man.

Early in the history of Title VII, the Supreme Court ruled that employers could not treat people differently because of generalizations about men and women, and by the late 1970s had accepted the proposition that workplace harassment of women was a form of sex discrimination. In a key ruling in 1989, the Court held that discrimination against a woman because the employer considered her inadequately feminine in her appearance or behavior was a form of sex discrimination, under what was called the sex stereotype theory, and during the 1990s the Court ruled that a victim of workplace same-sex harassment could sue under Title VII, overruling a lower court decision that a man could sue for harassment only if he was being harassed by a woman, not by other men.  In that decision for a unanimous court, Justice Antonin Scalia opined that Title VII was not restricted to the “evils” identified by Congress in 1964, but could extend to “reasonably comparable evils” to effectuate the legislative purpose of achieving a non-discriminatory workplace.

By the early years of this century, lower federal courts had begun to accept the argument that the sex stereotype theory provided a basis to overrule earlier decisions that transgender people were not protected from discrimination under Title VII.  There is an emerging consensus among the lower federal courts, bolstered by rulings of the Equal Employment Opportunity Commission (EEOC), that gender identity discrimination is clearly discrimination because of sex, and so the 11th Circuit Court of Appeals ruled several years ago in a case involving a transgender woman fired from a research position at the Georgia legislature.

However, the idea that some variant of the sex stereotype theory could also expand Title VII to protect lesbian, gay or bisexual employees took longer to emerge.  It was not until 2015 that the EEOC issued a decision in the Baldwin case concluding that sexual orientation discrimination is a form of sex discrimination, in part responding to the sex stereotype decisions in the lower federal courts.  And it was not until April 4 of this year that a federal appeals court, the Chicago-based 7th Circuit Court of Appeals, approved that theory in a strongly worded opinion by a decisive majority of the entire 11-judge circuit bench, just a few weeks after the 11th Circuit panel ruling in the Jameka Evans case.  Writing for the 7th Circuit in the Hively  case, Judge Diane Wood said, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

The 11th Circuit panel’s 2-1 decision to reject Jameka Evans’ sexual orientation discrimination claim seemed a distinct setback in light of these developments.  However, consistent with the 11th Circuit’s prior gender identity discrimination ruling, one of the judges in the majority and the dissenting judge agreed that Evans’ Title VII claim could be revived using the sex stereotype theory based on how she dressed and behaved, and sent the case back to the lower court on that basis.  The dissenting judge would have gone further and allowed Evans’ sexual orientation discrimination claim to proceed under Title VII.  The other judge in the majority strained to distinguish this case from the circuit’s prior sex stereotype ruling, and would have dismissed the case outright.

The 7th Circuit’s decision in April opened up a split among the circuit courts in light of a string of rulings by several different circuit courts over the past several decades rejecting sexual orientation discrimination claims by gay litigants, although several of those circuits have since embraced the sex stereotype theory to allow gay litigants to bring sex discrimination claims under Title VII if they could plausibly allege that they suffered discrimination because of gender nonconforming dress or conduct.  Other courts took the position that as long as the plaintiff’s sexual orientation appeared to be the main reason why they suffered discrimination, they could not bring a Title VII claim.

In recent years, several federal trial judges have approved an alternative argument: that same-sex attraction is itself a departure from widely-held stereotypes of what it means to be a man or a woman, and thus that discrimination motivated by the victim’s same-sex attraction is a form of sex discrimination under Title VII.  Within the New York-based 2nd Circuit, several trial judges have recently embraced this view, but three-judge panels of the Court of Appeals consistently rejected it.  Some progress was made last spring, however, when a three-judge panel in Christiansen v. Omnicom Group overruled a trial judge to find that a plaintiff whose sexual orientation was clearly a motivation for his discharge could bring a sex stereotype Title VII claim when he could plausibly allege behavioral nonconformity apart from his same-sex attraction.

More recently, however, the 2nd Circuit agreed to grant en banc reconsideration to the underlying question and heard oral argument in September in Zarda v. Altitude Express on whether sexual orientation discrimination, as such, is outlawed by Title VII.  That case involved a gay male plaintiff whose attempt to rely alternatively on a sex stereotype claim had been rejected by the trial judge in line with 2nd Circuit precedent.  Plaintiff Donald Zarda died while the case was pending, but it is being carried on by his Estate.  Observers at the oral argument thought that a majority of the judges of the full circuit bench were likely to follow the lead of the 7th Circuit and expand the coverage of Title VII in the 2nd Circuit (which covers Connecticut, Vermont and New York).  With argument having been held more than two months ago, a decision could be imminent.

Much of the media comment about the Zarda case, as well as the questioning by the judges, focused on the spectacle of the federal government opposing itself in court.  The EEOC filed an amicus brief in support of the Zarda Estate, and sent an attorney to argue in favor of Title VII coverage.  The Justice Department filed a brief in support of the employer, and sent an attorney to argue that the three-judge panel had correctly rejected the plaintiff’s Title VII claim.  The politics of the situation was obvious: The Trump appointees now running the Justice Department had changed the Department’s position (over the reported protest of career professionals in the Department), while the holdover majority at the EEOC was standing firm by the decision that agency made in 2015.  As Trump’s appointment of new commissioners changes the agency’s political complexion, this internal split is likely to be resolved against Title VII protection for LGBT people.

This is clearly a hot controversy on a question with national import, so why did the Supreme Court refuse to hear the case?  The Court does not customarily announce its reasons for denying review, and did not do so this time.  None of the justices dissented from the denial of review, either.

A refusal to review a case is not a decision on the merits by the Court, and does not mean that the Court approves the 11th Circuit Court of Appeals’ decision.  It is merely a determination by the Court, which exercises tight control over its docket, not to review the case.  Hypothesizing a rationale, one might note that the plaintiff here has not suffered a final dismissal of her case, having been allowed by the 11th Circuit to file an amended complaint focusing on sex stereotype instead of sexual orientation, so she can still have her day in court and there is no pressing need for the Court to resolve the circuit split in her case.  One might also note that Georgia Regional Hospital did not even appear before the 11th Circuit to argue its side of the case, and did not file papers opposing Lambda Legal’s petition until requested to do so by the Court.

On October 11, the Supreme Court Clerk’s office distributed the Lambda petition and some amicus briefs supporting it to the justices in anticipation of their conference to be held October 27. The lack of a response by Georgia Regional Hospital evidently sparked concern from some of the justices, who directed the Clerk to ask the Hospital to file a response, which was filed by Georgia’s Attorney General on November 9, and the case was then put on the agenda for the Court’s December 8 conference, at which the decision was made to deny review.  The responsive papers argued, among other things, that the Hospital had not been properly served with the Complaint that initiated the lawsuit. Those kinds of procedural issues sometimes deter the Court from taking up a case.

For whatever reason, the Court has put off deciding this issue, most likely for the remainder of the current Term. The last argument day on the Court’s calendar is April 25, and the last day for announcing decisions is June 25.  Even if the 2nd Circuit promptly issues a decision in the Zarda case, the losing party would have a few months to file a petition for Supreme Court review, followed by a month for the winner filing papers responding to the Petition.  Even if the Court then grants a petition for review, thus starting the clock running for filing merits briefs and amicus briefs, it is highly likely that once all these papers are submitted, it will be too late in the Term for the case to be argued, so it would end up on the argument calendar for Fall 2018.

Which raises the further question of who would be on the Court when this issue is finally before it? Rumors of retirements are rife, and they center on the oldest justices, pro-LGBT Ruth Bader Ginsburg and conservative but generally pro-gay Anthony Kennedy.  If President Trump gets to nominate successors to either of them, the Court’s receptivity to gay rights arguments is likely to be adversely affected.