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Kennedy Retirement from Supreme Court May Doom LGBT Rights Agenda

Posted on: June 27th, 2018 by Art Leonard No Comments

Justice Anthony M. Kennedy’s announcement on June 27 that he would retire from active service on the U.S. Supreme Court as of July 31, 2018, opening up a vacancy for President Donald J. Trump to fill with the assistance of the bare majority of Republican United States Senators, portends a serious setback for LGBT rights in the years ahead. Kennedy cast a crucial vote and wrote powerfully emotional opinions to establish the dignity of LGBT people under the Constitution’s 5th and 14th Amendments.  Justice Kennedy will be remembered as the author of four major Supreme Court opinions that worked a revolution in United States constitutional law concerning the rights of sexual minorities.

Before his opinion for the Court in Romer v. Evans, 517 U.S. 620, was announced on May 20, 1996, the Court had never ruled in favor of gay litigants in an Equal Protection Case.   In Romer, the Court invalidated a Colorado constitutional amendment, adopted in a voter initiative that banned the state from protecting gay people from discrimination.  Kennedy condemned the measure as an attempt to render gay people as “strangers to the law,” and found it to be an obvious violation of equal protection, leading Justice Scalia to complain in dissent that the Court’s opinion was inconsistent with its ruling a decade earlier that sodomy laws were constitutional.

Before his opinion for the Court in Lawrence v. Texas, 539 U.S. 558, was announced on June 26, 2003, the Court had never used the Due Process Clause to strike down an anti-gay law. In Lawrence, Kennedy wrote for five members of the Court that the Texas Homosexual Conduct Law, by making private consensual adult gay sex a crime, had unconstitutionally abridged the liberty of gay people.  (Justice O’Connor concurred in an opinion focused solely on the equal protection clause.)  This time, Justice Scalia’s dissent denounced the Court’s opinion as opening the path to same-sex marriage.

His opinions in United States v. Windsor, 570 U.S. 744 (2013) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015), established a right to marriage equality for LGBT people in the United States, the most populous nation so far to allow same-sex couples to marry. In Windsor, Kennedy wrote for five members of the Court that the Defense of Marriage Act, a statute requiring the federal government to refuse to recognize same-sex marriages that were valid under state law, violated both the Due Process and Equal Protection requirements of the 5th Amendment, emphasizing the affront to the dignity of gay married couples.  In dissent, of course, Justice Scalia accused the Court of providing a framework for lower courts to strike down state bans on same-sex marriage.  Scalia’s dissent was prophetic, as just two years later the Court ruled in Obergefell that the 14th Amendment’s guarantees of Due Process and Equal Protection required the states to allow same-sex couples to marry and to recognize such marriages for all legal purposes.  In the intervening years, lower courts had cited and quoted from Kennedy’s Windsor opinion (and Scalia’s dissent) in finding bans on same-sex marriage unconstitutional.  Kennedy’s vote with the majority in the per curiam ruling in Pavan v. Smith, 137 S. Ct. 2075 (2017), reinforced Obergefell’s holding that couples in same-sex marriages enjoyed the “full constellation” of rights associated with marriage, as did his vote in V.L. v. E.L., 136 S. Ct. 1017 (2016), affirming that states were obligated to extend full faith and credit to second-parent adoptions granted by the courts of other states.

Justice Kennedy also joined the majority in a concurring opinion in Christian Legal Society v. Martinez, 561 U.S. 661 (2010), rejecting a 1st Amendment challenge to a public university law school’s refusal to extend official recognition to a student group that overtly discriminated against gay students.

When LGBT litigants lost Kennedy’s vote, however, they lost the Court. In his most recent LGBT-related decision, Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 WL 2465172, 2018 U.S. LEXIS 3386 (June 4, 2018), while reiterating his concern for the dignity of gay people to be able to participate without discrimination in the public marketplace, Kennedy could not bring himself to reject the religious free exercise claims of a Christian baker, and so engineered an “off ramp” by embracing a dubious argument that the Colorado Civil Rights Commission was so overtly hostile to the baker’s religious beliefs that he had been deprived of a “neutral forum” to decide his case.  Thus, Kennedy was able to assemble a 7-2 vote to overturn the Colorado Court of Appeals ruling in that case, without directly ruling on whether the baker’s religious objections would override the non-discrimination requirements of Colorado law, leading to oversimplified media headlines suggesting that the baker had a 1st Amendment right to refuse to make the cake.

Kennedy also joined the majority (without writing) in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), a 5-4 ruling holding that the Boy Scouts had a 1st Amendment right to deny membership to an out gay Assistant Scoutmaster, based on BSA’s rights of free speech and expressive association. He was part of the unanimous Courts that rejected a constitutional challenge to the Solomon Amendment, a law denying federal money to schools that barred military recruiters (mainly because of the Defense Department’s anti-gay personnel policies), in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), and that, reversing the Massachusetts Supreme Judicial Court, held that a gay Irish-American group could be barred from marching in Boston’s St. Patrick’s Day Parade in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995).  However, in those cases all of the more liberal members of the Court joined in the unanimous opinions, so Kennedy’s vote did not make a difference to the outcome.

While Justice Kennedy’s majority opinions in the major LGBT rights cases were triumphs for LGBT rights, they were not viewed as unalloyed triumphs in the halls of legal academe. Commentators who agreed with the results were frequently harshly critical of Kennedy’s opinions in terms of their articulation of legal reasoning and doctrinal development.  The Romer decision left many scratching their heads, trying to figure out whether the Court had applied some sort of “heightened scrutiny” to the Colorado constitutional amendment, puzzled about the precedential meaning of the ruling for later LGBT-related equal protection challenges.  There was similar criticism of the opinions in Lawrence, Windsor, and Obergefell.  Kennedy failed to use the doctrinal terminology familiar to constitutional law scholars and students, such as “suspect classification,” “heightened scrutiny,” “compelling state interest” and the like, leaving doubt about the potential application of these rulings.  Indeed, three justices dissenting in Pavan v Smith in an opinion by Justice Gorsuch claimed that the Court’s Obergefell ruling had left undecided the question in Pavan – whether Arkansas had to list lesbian co-parents on birth certificates – and the Texas Supreme Court expressed similar doubts about the extent of Windsor and Obergefell in refusing to put an end to a dispute about whether the city of Houston had to extend employee benefits eligibility to the same-sex spouses of city employees.  While some courts, such as the 9th Circuit Court of Appeals, saw Kennedy’s opinions as extending protected class status to gay people for equal protection purposes, others insisted that those rulings had produced no such precedent.

Justice Kennedy’s retirement effective July 31, 2018, seemed to signal a likely retreat from LGBT rights leadership by the Supreme Court. Assuming that President Trump will nominate and the Republican majority in the Senate will confirm a justice with the ideological and doctrinal profiles of Neil Gorsuch or Samuel Alito, the crucial fifth vote to make a pro-LGBT majority would most likely be missing, although Supreme Court appointments are a tricky business.  In the past, some presidents have been astounded at the subsequent voting records of their appointees.  President Dwight Eisenhower called his appointment of William J. Brennan one of the worst mistakes of his presidency, as Brennan went on to be a leader of the Court’s left wing.  Had he lived long enough to see it, President John F. Kennedy might have been similarly disappointed by the rightward drift of Byron R. White, his nominee who wrote the blatantly homophobic decision in Bowers v. Hardwick, 478 U.S. 186 (1986), that upheld Georgia’s felony sodomy law, calling a claim to constitutional protection by gay people “at best facetious.”  President Richard Nixon was undoubtedly disappointed with the leftward drift of Harry Blackmun, author of Roe v. Wade, 410 U.S. 113 (1973), the Court’s key abortion rights decision, and vigorous dissenter in Bowers v. Hardwick.  President Ronald Reagan appointed Anthony Kennedy assuming he would provide a vote to strike down abortion rights, but Kennedy was part of a moderate Republican coalition (joining with Justices Sandra Day O’Connor and David Souter) that joined with the remaining Democratic appointees to reaffirm those rights in Planned Parenthood v. Casey, 505 U.S. 833 (1992).  President George H. W. Bush’s appointment of Souter ended up being a massive disappointment to conservatives, as Souter frequently voted with the Democratic appointees and the leftward veering John Paul Stevens, who had been appointed by President Gerald Ford and ended up being much more liberal than expected.  Souter was so disillusioned by the Court’s 5-4 decision in Bush v. Gore, 531 U.S. 98 (2000), handing the presidency to George W. Bush after Albert Gore decisively won the national popular vote and may well have been entitled to the Florida electoral votes needed to put him over the top, that he retired from the Court prematurely.

In other words, the past records of Supreme Court nominees are not inevitably accurately predictive prologues to how they will vote on the Court over the long term. Supreme Court justices frequently serve for several decades (Kennedy’s service stretched over 30 years), and the looming constitutional issues at the time of their appointment are inevitably replaced by new, unanticipated issues over the course of their service.  Also, the Supreme Court is like no other court in the United States, in which the constraints of precedent faced by lower court judges are significantly loosened, since the Supreme Court can reverse its prior holdings, and in which theories and trends in constitutional and statutory interpretation evolve over time.  The examples of Brennan, Souter and Kennedy have caused the confirmation process to change drastically, and the possibility of an appointee turning out a total surprise appears diminished, but it is not entirely gone.  One can hope that a Trump appointee will not be totally predictable in the Alito/Gorsuch orbit, although that may be unduly optimistic when it comes to LGBT issues.  In his first full term on the Court, Justice Gorsuch has not cast 100 predictable votes. . .

Houston Benefits Dispute May Bring Marriage Equality Issue Back to the Supreme Court

Posted on: January 25th, 2017 by Art Leonard No Comments

Conservatives eager to bring the marriage equality issue back to the U.S. Supreme Court after President Donald J. Trump has had an opportunity to appoint some conservative justices may have found a vehicle to get the issue there in an employee benefits dispute from Houston. On January 20, the Texas Supreme Court announced that it had “withdrawn” its September 2, 2016, order rejecting a petition to review a ruling by the state’s intermediate court of appeals that had implied that the U.S. Supreme Court’s 2015 marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584, might require Houston to provide the same spousal health benefits to same-sex as different-sex spouses of City workers.  Instead, announced the Court, it had reinstated the petition for review and scheduled oral argument for March 1, 2017.  Parker v. Pidgeon, 477 S.W.3d 353 (Tex. 14th Dist. Ct. App., 2015), review denied, sub nom. Pidgeon v. Turner, 2016 WL 4938006 (Texas Supreme Ct., September 2, 2016), No. 16-0688, Order withdrawn, motion for rehearing granted, petition reinstated (Jan. 20, 2017).

The plaintiffs in the Houston benefits case, Houston taxpayers Jack Pidgeon and Larry Hicks, had filed a motion for rehearing with active support from Governor Greg Abbott and Attorney General Ken Paxton, both ardent marriage equality opponents eager to chip away at the marriage equality ruling or even to get it reversed. The Texas Supreme Court’s order denying review had been issued over a fervent dissenting opinion by Justice John Devine, who argued for a limited reading of Obergefell, and the Republican leaders’ amicus brief in support of review channeled Devine’s arguments.

Trump’s nomination of a conservative to fill the seat left vacant when Justice Antonin Scalia died last February would not change the Supreme Court line-up on marriage equality. Obergefell was decided by a 5-4 vote, with Scalia dissenting.  However, it is possible – even likely, if rumors of a possible retirement by Justice Anthony Kennedy at the end of the Court’s 2017-18 Term are accurate – that Trump will get an opportunity to replace the author of the Obergefell decision with a more conservative justice in time for the Court’s 2018-19 Term.  Regardless how the Texas Supreme Court rules on this appeal, its interpretation of the scope of Obergefell could set up a question of federal constitutional law that could be appealed to the U.S. Supreme Court, and once the issue gets to the Court, it is possible that the Obergefell dissenters, strengthened in number by new conservative appointees, could take the opportunity to narrow or even overrule the marriage equality decision.

The Houston dispute dates back to 2001, when Houston voters reacted to a City Council move to adopt same-sex partner benefits by approving a City Charter amendment that rejected city employee health benefits for “persons other than employees, their legal spouses and dependent children.” In 2001 same-sex couples could not legally marry anywhere in the world, so this effectively denied benefits to any and all same-sex partners of City employees.  Texas was also one of many states that put firm bans on same-sex marriage into its constitution and family law statute.

After the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act in June 2013, Houston Mayor Annise Parker, an openly-lesbian longtime LGBT rights advocate, announced the extension of health benefits to same-sex spouses of City employees. Although same-sex couples could not then marry in Texas, they could go to any of a number of other states to get married, including California and New York and, most conveniently as a matter of geography, Iowa.  Parker and her City Attorney concluded that under the Supreme Court’s reasoning in the DOMA case, United States v. Windsor, 133 S. Ct. 2675, Houston’s city government was obligated to recognize lawfully contracted same-sex marriages of city employees and provide them the same benefits that were accorded to other city employees.  Federal constitutional requirements would override the City Charter ban as well as state law.

Taxpayers Pidgeon and Hicks filed suit in state court, contending that Parker’s action violated the Texas Constitution and statutes, as well as the city charter amendment. They persuaded the trial judge to issue a temporary injunction against the benefits extension while the case was pending.  The City appealed that ruling to the 14th District Court of Appeals, which sat on the appeal as new marriage equality litigation, sparked by the Windsor ruling, went forward in dozens of states including Texas.  A Texas federal district judge ruled in 2014 in the De Leon case that the state’s ban on same-sex marriage was unconstitutional.  The U.S. 5th Circuit Court of Appeals heard the state’s appeal of that ruling in January 2015.  After the U.S. Supreme Court ruled for marriage equality in June 2015, the 5th Circuit issued its decision upholding the Texas district court, 791 F.3d 619, which in turn ordered Texas to allow and recognize same-sex marriages.  This prompted the 14th District Court of Appeals to issue its decision on July 28, 2015.

The Court of Appeals ruling in Parker v. Pidgeon, 477 S.W.3d 353, said, “Because of the substantial change in the law regarding same-sex marriage since the temporary injunction was signed, we reverse the trial court’s temporary injunction and remand for proceedings consistent with Obergefell and De Leon.”  The court did not rule on the merits, merely sending the case back to the trial court to issue a decision “consistent with” the federal marriage equality rulings.  What those rulings may require in terms of city employee benefits is a matter of some dispute.

Pidgeon and Hicks petitioned the Texas Supreme Court to review this court of appeals decision, but the court denied that petition on September 2, 2016, with Justice Devine dissenting. Devine argued that the court should have taken up the case because, in his view, the majority of the court “assumed that because the United States Supreme Court declared couples of the same sex have a fundamental right to marry, the Equal Protection Clause of the Fourteenth Amendment requires cities to offer the same benefits to same-sex spouses of employees as to opposite-sex spouses.  I disagree.” He continued: “Marriage is a fundamental right.  Spousal benefits are not.  Thus, the two issues are distinct, with sharply contrasting standards for review.  Because the court of appeals’ decision blurs these distinctions and threatens constitutional standards long etched in our nation’s jurisprudence, I would grant review.”

Justice Devine was mistaken as to the court of appeals decision. That court did not hold in its July 28 ruling that same-sex spouses of Houston employees are entitled to health benefits from the city.  Rather, it ruled that because of “substantial change in the law” since the temporary injunction was issued, the injunction should be reversed and the case sent back to the trial court for “proceedings consistent with Obergefell and De Leon.”  If the trial court, on reconsideration, concluded that Obergefell and De Leon did not require the City to extend benefits to same-sex spouses of its employees, as Justice Devine argued in his dissent, the trial court could still rule in favor of Pidgeon and Hicks.  All the court of appeals directed the trial judge to do was to rethink the case in light of the new federal rulings.

Devine’s argument rests on a very narrow reading of Obergefell.  He interprets the Supreme Court’s decision to be sharply focused on the right of same-sex couples to marry, resting on the Court’s conclusion that the right to marry is a “fundamental right.”  Thus, a state would have to have a “compelling interest” to deny the right, a test that the Supreme Court found was not met.  However, pointed out Devine, the Supreme Court never explicitly said that the federal constitution requires state and local governments to treat all marriages the same, regardless whether they are same-sex or different-sex marriages.  And, he argued, public employees do not have a fundamental constitutional right to receive health insurance benefits from their employer.  Thus, he contended, the state could decide who gets benefits based on its own policy considerations, which the courts should uphold if they satisfy the relatively undemanding “rationality” test that is used when a fundamental right is not at stake.  As to that, he argued that the state’s interest in procreation by married different-sex couples could justify extending benefits to them but not to same-sex couples.

A contrary argument would note that Justice Kennedy’s opinion in Obergefell specifically listed health insurance as one of the many benefits associated with marriage that contributed towards the conclusion that the right to marry was a fundamental right because of its importance to the welfare of a couple and their children.  Similarly, Justice Kennedy did not consider the “procreation” argument persuasive to justify denying the right to marry to same-sex couples.  On the other hand, the Supreme Court did not say anywhere in its opinion that states are constitutionally required to treat same-sex and different-sex couples exactly the same in every respect, ignoring any factual distinctions between them.  Justice Devine’s argument seems strained, but not totally implausible, especially in the hands of a conservatively-inclined court.

Timing is everything in terms of getting an issue before the Supreme Court, especially if the aim of Texas conservatives and their anti-LGBT allies around the country is to get the issue there after Trump has had two appointments.  Once the Texas Supreme Court hears oral argument on March 1, it could take as long as it likes to issue a ruling on the appeal, and it could be strategic about holding up a ruling until it looks likely that any Supreme Court appeal would be considered after the 2017-18 Term of the Court has concluded in June 2018.  After the Texas Supreme Court rules, the losing party could take up to 90 days to file a petition in the Supreme Court.  If the petition arrives at the Supreme Court after the end of its term, that Court won’t decide whether to grant review until the beginning of its new term in the fall of 2018, and if the petition is granted, argument would not take place for several months, giving the parties time to brief the merits of the case.  If the Texas Supreme Court decides to affirm the court of appeals, it is highly likely that Pidgeon and Hicks, abetted by Abbott and Paxton, will seek Supreme Court review.  If the Texas Supreme Court reverses, the City of Houston will have to decide whether to seek Supreme Court review, or whether to adopt a wait-and-see attitude while the trial court proceeds to a final ruling on the merits of the case.  And the trial court could well decide, upon sober reflection, that Obergefell compels a ruling against Pidgeon and Hicks, which would put them back in the driver’s seat as to the decision to appeal to the Supreme Court.

If a second Trump appointee was confirmed while all of this was playing out, the case would be heard by a bench with a majority of conservative justices appointed by Republican presidents, one by George H.W. Bush (Clarence Thomas), two by George W. Bush (Chief Justice John Roberts and Samuel Alito), and two by Donald Trump. Trump’s appointees would be joining three Republican colleagues who filed or signed dissents in the Windsor and Obergefell cases.  Regardless of how the Petitioner frames the questions posed to the Court, the justices are free to rewrite the question or questions on which they grant review.  If a majority of the newly-constituted Court is eager to revisit Obergefell, they could grant review on the question whether Obergefell was correctly decided.  Based on past history, they could reach that issue if a majority wants to do so without signaling its salience in the Order granting review.

Much of this is conjecture, of course. Justice Devine was a lone voice dissenting from the September 2 order to deny review in this case.  But that order was issued at a time when national pollsters were near unanimous in predicting that Hillary Clinton would be elected and, consequently, would be filling the Scalia vacancy and any others that occurred over the next four years. The political calculus changed dramatically on November 8 when Trump was elected. Even though he has stated that he accepts marriage equality as a “settled issue,” his announced intention to appoint Justices in the image of Scalia and to seek reversal of Roe v. Wade, the Court’s seminal abortion decision from 1973, suggests that he will appoint justices who have a propensity to agree with the Obergefell dissenters that the marriage equality ruling was illegitimate.  (Chief Justice Roberts wrote in his dissent that it had “nothing to do with the Constitution.”)  Although the Court has frequently resisted efforts to get it to reverse highly consequential constitutional decisions, it has occasionally done so, most notably in the LGBT context in its 2003 ruling in Lawrence v. Texas, striking down a state sodomy law and overruling its 1986 decision in Bowers v. Hardwick.

After the election, many LGBT rights organizations issued statements to reassure people that marriage equality would not immediately disappear after Trump took office. That remains true.  A constitutional ruling by the Supreme Court can only be changed by the adoption of a constitutional amendment, which Democrats can easily block in Congress, or overruling by the Supreme Court, which requires that a new case come up to the Court at a time when a majority of the Court is receptive to the overruling argument, which seems to be at least two years off from now.  But these statements, including those by this writer, conceded that in the long run it was possible that Trump’s Supreme Court appointments and new appeals headed to the Supreme Court might come together to endanger marriage equality.  This new development in the Houston benefits case shows one way that could happen.

Anti-Gay Justice Scalia Exits the Stage

Posted on: February 16th, 2016 by Art Leonard No Comments

With the death of Antonin Scalia the Supreme Court has lost its most outspoken anti-gay member.  Ever since taking his seat on the high bench in 1986, Justice Scalia voted consistently against gay rights claims, sometimes in the majority and sometimes in dissent, regardless of the factual context in which they arose.

Scalia was appointed to the Court by President Ronald Reagan shortly after the Court had decided Bowers v. Hardwick (1986), the notorious case in which it rejected by a 5-4 vote a constitutional challenge to Georgia’s law making gay sex a crime.  There is no doubt how he would have voted in that case, since he subsequently argued (in dissent) that it had been correctly decided and should be reaffirmed and followed.

The first LGBT rights case to come up after his appointment, during Scalia’s first term on the Court in 1987, was San Francisco Arts & Athletics v. U.S. Olympic Committee.  The Olympic Committee sued for an injunction to stop SFAA from holding its international athletic competition under the name “Gay Olympics.”  The Supreme Court ruled that the USOC had a right under a federal statute to veto the use of “Olympics” in connection with athletic competitions run by other organizations, and that the statute did not violate the 1st Amendment free speech rights of others who wanted to run their own “Olympic” games.  Scalia joined the majority opinion by Justice Lewis Powell.  The Court refused to entertain the argument that USOC’s discriminatory exercise of its veto – allowing many other organizations to use “Olympic” in their name unchallenged – raised a constitutional issue, as the Court found that USOC was not a governmental organization, and thus not bound by the Equal Protection requirement.  Justices William J. Brennan and Thurgood Marshall dissented in full, and two other justices  — Sandra Day O’Connor and Harry Blackmun — also opined that the case should be sent back to a lower court for further consideration of an equal protection challenge.

The Court ruled in 1988 that a gay man who had been discharged by the Central Intelligence Agency had a right to seek judicial review of his claim that he was a victim of unconstitutional discrimination.  Chief Justice Rehnquist wrote the decision for the Court.  Scalia, who normally voted in line with the Chief Justice, penned a lengthy dissent, arguing that Congress had insulated such CIA personnel decisions from judicial review and was constitutionally entitled to do so.

Scalia subsequently joined a dissent by Justice Anthony M. Kennedy in 1989 in Price Waterhouse v. Hopkins, a case in which a majority of the Court accepted the argument that an employer who takes adverse action against an employee because she fails to conform to gender stereotypes may be violating the sex discrimination ban in Title VII of the Civil Rights Act of 1964.  Justice Brennan’s opinion for a plurality of the Court influenced lower courts to adopt a broader approach to Title VII’s ban on sex discrimination, leading ultimately to provide protection to transgender plaintiffs and even some gay plaintiffs who can make a plausible claim that they encounter workplace discrimination due to gender stereotype non-conformity.  Although Justice Kennedy’s dissent, joined by Scalia, focused mainly on other issues in the case, it voiced skepticism about the “sex stereotyping” theory.

In 1996 Scalia “vigorously” dissented (to use his descriptive word) from the Supreme Court’s 5-4 ruling in Romer v. Evans, holding that Colorado Amendment 2 violated the equal protection rights of gay people.  Amendment 2 prohibited the state or its political subdivisions from adopting legislation that would protect gay people from discrimination.  The case provided Scalia with his first vehicle to accuse the Court of signing on to a gay rights agenda, because it was the first potentially wide-ranging pro-gay-rights decision to emanate from the Court.

“The constitutional amendment before us here is not the manifestation of a “‘bare . . . desire to harm'” homosexuals,” he wrote, refuting Justice Kennedy’s reasoning for the majority, “but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” The description of “seemingly tolerant Coloradans” who had voted overwhelmingly to enact Amendment 2 in the wake of a horrifyingly homophobic media campaign drew shocked guffaws from LGBT commentators.

He continued: “This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.”  Scalia aligned the majority of the Court with the organized bar and the law school community, which had condemned anti-gay discrimination and moved to deny access to law school placement offices to discriminatory recruiters.  After summarizing Justice Kennedy’s rationale for the decision in sarcastic terms, Scalia insisted that by such reasoning “constitutional jurisprudence has achieved terminal silliness.”  He argued that the Court’s ruling was inconsistent with Bowers v. Hardwick and accused the Court of overruling that case without saying so.  If it was constitutional to make gay sex a crime, he asked, how could it be a violation of equal protection for a state to refuse to protect homosexuals from discrimination?

Pushing the point further, he wrote: “Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy, or cruelty to animals — and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.”

He went on at length in a similar vein, ultimately accusing the Court of ruling based on politics rather than law, and arguing for the right of individuals who did not want to associate with homosexuals in their workplaces to refuse to employ them.

This dissent set the pattern for Scalia’s increasingly vociferous dissents as he found himself on the losing side in Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015), the cases in which the Court struck down sodomy laws, the anti-gay Defense of Marriage Act, and state laws against same-sex marriage.  These dissents were littered with colorful phrases one would not expect to find in the normally staid volumes of Supreme Court opinions, accusing Justice Kennedy of “argle-bargle” and asserting that he would be so ashamed to sign on the logic of the Obergefell decision that he would put his head in a paper bag.

Scalia’s dissents in these cases proved to be prophetic, probably to his dismay. He accused the Court of overruling Bowers v. Hardwick sub silentio in Romer, and the Court subsequently did so explicitly and emphatically in Lawrence.  He accused the Court of opening up the path to same-sex marriage in Lawrence, and exactly ten years later the Court, citing Lawrence, struck down the federal ban on recognition of same-sex marriages in Windsor.  In his Windsor dissent, Scalia accused the Court of providing a road-map for lower courts to strike down state bans on same-sex marriage, predicting that the issue would be back before the Court in two years.  Precisely two years later, the Court struck down such bans in Obergefell, over a hysterical Scalia dissent.  Not surprisingly, many lower court judges cited and quoted from Scalia’s dissents to support their rulings striking down same-sex marriage bans.

Throughout these dissents, Scalia bemoaned the Court’s weakening of the ability of legislative majorities to codify their moral judgments in law, detesting the moral relativism exhibited by Kennedy’s opinions exalting private morality above public morality as a matter of individual liberty protected by the Constitution.

When the marriage equality cases arrived at the Court’s door, Scalia fought a rear-guard action to try to keep lower court marriage equality rulings “stayed” until the Supreme Court could decide the cases, perhaps holding out hope that Justice Kennedy was not ready to extend the Windsor decision further, joining dissents by Justice Clarence Thomas, who sought to preserve the anti-marriage status quo as long as possible, even after the Supreme Court had denied review to several pro-marriage equality court of appeals rulings and agreed to review the one adverse ruling out of the 6th Circuit.

Scalia did enjoy some victories along the way after Romer v. Evans, however.  In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, he joined a unanimous Court in striking down the Massachusetts Supreme Judicial Court’s ruling that the organizers of the Boston St. Patrick’s Day Parade were required under a state civil rights law to allow an LGBT group to participate in the event.  In Boy Scouts of America v. Dale, he joined a 5-4 majority in striking down the New Jersey Supreme Court’s ruling that the Boy Scouts did not enjoy a 1st Amendment right to exclude openly gay men from leadership positions in violation of the state’s civil rights law.  In Rumsfeld v. Forum for Academic & Institutional Rights, Inc., he joined Chief Justice Roberts’ opinion for the unanimous Court in rejecting a constitutional challenge to the Solomon Amendment, a provision denying federal funding to law schools that were refusing to allow military recruiters on campus due to the Defense Department’s anti-gay policies, reversing a contrary decision by the 3rd Circuit Court of Appeals.

Scalia joined dissents in several other cases where the Court affirmatively addressed issues of concern to the LGBT community.  In Bragdon v. Abbott, he joined a dissent by Chief Justice William Rehnquist from the Court’s conclusion that a woman with HIV-infection could asserted a discrimination claim under the Americans with Disabilities Act against a dentist who refused to provide treatment to her in his office.  In Christian Legal Society v. Martinez, a 5-4 ruling, he joined a dissent against Justice Ruth Bader Ginsburg’s majority opinion, which held that the University of California Law School could refuse to extend official recognition to a student group that explicitly excluded “homosexuals” from its membership on religious grounds.  He was, of course, a frequent dissenter in cases upholding women’s right to terminate their pregnancies as part of their liberty under the Due Process Clause, in a key decision – Planned Parenthood v. Casey – writing in dissent that the Court’s support for abortion rights was inconsistent with its upholding of laws against “homosexual sodomy” in Bowers v. Hardwick.

Sometimes, however, Scalia wrote opinions that might prove useful to gay litigants, although their interests were not directly involved in the case before the Court. In Employment Division v. Smith, he wrote for the Court that individuals could not claim a broad right under the 1st Amendment’s protection for free exercise of religion to refuse to comply with general state laws because of their religious objections.  Although that decision spurred the passage of federal and state statutes providing some protection for religious dissenters, the degree to which such statutes would shield employers, landlords or businesses serving the public from discrimination charges remains hotly contested, and so far many courts have ruled against recalcitrant businesses that had refused to provide goods or services for same-sex weddings.  Scalia’s opinion in Smith was cited in some of these cases to reject the constitutional free exercise claims raised by the discriminators.

In another case, Oncale v. Sundowner Offshore Services, Scalia wrote for a unanimous Court that same-sex workplace harassment might violate Title VII of the Civil Rights Act if the victim was singled out for harassment because of his sex. This case has also proved useful to some gay male litigants combatting workplace harassment by male co-workers, and Scalia’s comment that a statute could be interpreted to address “comparable evils” to those envisioned by the legislature has proved useful to the Equal Employment Opportunity Commission as it has moved to apply Title VII to discrimination claims brought by gay and transgender people.  One doubts that this was Scalia’s intent in penning the phrase, however.

In the Supreme Court’s only ruling to date on transgender rights, Farmer v. Brennan, Scalia joined an opinion for the Court by Justice David Souter holding that prison officials could be sued under the 8th Amendment for failing to take steps to protect transgender inmates from known risks of harm while incarcerated.

Justice Scalia’s main impact on the Court’s jurisprudence in general was to lend a degree of respectability to certain theories of constitutional and statutory interpretation that had been rejected or minimized in the past, but he was never able to persuade a stable majority of the Court to fully embrace his notion that the Constitution is “dead” – in the sense that its meaning was fixed at the time its provisions were adopted and cannot change in light of new circumstances – or that statutes should be construed by reference to their language without any regard to what legislators said they intended to accomplish by enacting them – so-called “legislative history,” for which he had open disdain. However, when he was assigned to write for the majority, he managed to work these ideas into his opinions to some extent, giving lower courts a basis to invoke them from time to time.

Justice Scalia departed from Supreme Court tradition by engaging in a substantial amount of public speaking.  In the past most justices avoided speaking publicly about substantive legal issues, lest they cross an ethical line and signal their views about cases pending before the Court.  Such concerns did not seem to bother Scalia, who said publicly on several occasions what he subsequently said officially in court opinions concerning claims by gay people for constitutional protection, which he invariably found to lack merit.  Homosexuality is not mentioned in the Constitution, which struck Scalia as the end of the matter, and he repeatedly argued that “the people” were entitled to vote against the interest of LGBT people as a matter of “democracy.”

After almost thirty years of service, he will be missed from the Court by many, but not all for the same reasons.

6th Circuit: Obergefell Decision Irrelevant to Equal Protection Claim

Posted on: August 5th, 2015 by Art Leonard No Comments

A panel of the U.S. 6th Circuit Court of Appeals ruled on August 3 that the Supreme Court’s recent marriage equality decision, Obergefell v. Hodges, is irrelevant to an equal protection claim asserted against Cleveland, Ohio, police officers regarding the manner in which they arrested two gay men on April 8, 2011.  Referring to the “law-of-the-circuit” doctrine, Circuit Judge Alice M. Batchelder relied on pre-Obergefell 6th Circuit precedents to apply the “rational basis” test and find that even if plaintiffs’ counsel had not waived their equal protection claim, the police had a rational basis for refusing to let them wear pants for the ride to the police station and the booking process.  One member of the panel, Circuit Judge Jeffrey Sutton, dissented from this part of the ruling, but not on the merits.  Sutton found that the court should have ruled that the equal protection issue was waived by plaintiff’s counsel at oral argument and thus should not have been addressed by the court.

Steven Ondo and Jonathan Simcox, roommates, were returning home after several hours of drinking at 2:00 AM on April 2, 2011.  They “got into a heated argument outside their apartment building.”  A neighbor came out to confront them about the noise, and Simcox told him to “fuck off.”  “An altercation ensued between the three men,” wrote Judge Batchelder, “during which the neighbor identified himself as an off-duty police officer.”  Evidently the neighbor called the precinct, because later that night the police came and arrested the plaintiffs in their apartment, resulting in them spending two nights in jail.  The police followed up on the altercation with the off-duty officer, getting arrest warrants against Ondo and Simcox for “felonious assault on a police officer,” and a SWAT team showed up at their apartment building at 7:00 AM on April 8 to execute the warrant.  Ondo and Simcox were not dressed at the time, wearing only boxer shorts.  They allege that the police used homophobic slurs and when they asked to be allowed to put on pants, the officers said “faggots don’t wear pants in jail.”  Further, they claimed that one officer said “It’s a house full of fags here.”  They also allege that they were dragged down to the police station in their underwear and not given jumpsuits to wear until well after they were booked, an allegation that the trial judge found to be contradicted by other evidence.

They filed their 42 USC 1983 civil rights lawsuit against the City of Cleveland and 17 police officers in January 2012, but their complaint was deficient in specific factual allegations against specific officers and even an amended complaint fell short on this.  The City got several of the defendants dismissed from the case so that it was narrowed down to the SWAT team members, and then moved for summary judgment.  Responding to the s.j. motion, the plaintiffs alleged further facts trying to bolster their case in affidavits which made the allegations based on “personal knowledge and belief,” without specifying which facts were based on “personal knowledge” and which facts were based on “belief.”  The City moved to strike the affidavits and the court granted the motion, on the ground that only factual assertions based on personal knowledge were sufficient to ground the plaintiffs’ equal protection claim against specific police officers.  Then the court granted the City’s summary judgment motion.

A major part of the 6th Circuit’s opinion was devoted to explaining why the trial court was correct to strike the affidavits, and to examine the City’s further argument that plaintiffs had abandoned many of their claims at oral argument.  Ultimately, in the view of the majority of the panel, plaintiffs’ counsel had conceded at argument that if the Court of Appeals upheld the trial judge’s decision to strike the affidavits, the case was basically over, but, wrote Judge Batchelder, “Regardless of our stance on abandonment, on the remaining record the equal protection claim fails as a matter of law,” and this is where the court found that Obergefell made no difference to the analysis.  Plaintiffs’ counsel had stated at argument that the entire equal protection claim boiled down to the contention that the police refused to let the men wear pants over their boxer shorts because they were gay, and this constituted unconstitutional unequal treatment.  There was also a state law allegation of infliction of emotional distress.

Plaintiffs argued that “state actions involving homosexuals should trigger some form of heightened scrutiny under the Equal Protection Clause.”  Wrote Judge Batchelder, “First, Plaintiffs cannot demonstrate that the state action of which they complain burdens a fundamental right.  When the Supreme Court held that state laws against sodomy violate the Due Process Clause, it did so using the language of rational-basis review, rather than any form of heightened scrutiny,” citing Lawrence v. Texas.  “The Court did not hold that the Constitution includes a fundamental right to homosexual conduct.  Whether the Court’s recent decision in Obergefell v. Hodges recasts engaging in homosexual acts as a fundamental right is irrelevant, because the decision by the police relevant here does not impair Plaintiffs’ ability to engage in such conduct.  Nor can Plaintiffs establish that homosexuals are a suspect or quasi-suspect class.  The Court has never held that homosexuals satisfy the criteria for such classification.”  The court cited two cases for this assertion, neither of which deals with sexual orientation claims. “The Supreme Court has not recognized any new constitutionally protected classes in over four decades,” she continued, “and instead has repeatedly declined to do so.  Moreover, the Court has never defined a suspect or quasi-suspect class on anything other than a trait that is definitively ascertainable at the moment of birth, such as race or biological gender.  In Obergefell, the Court was explicitly asked by the petitioners and various amici to declare that homosexuals are a specially protected class, and thus that government actions that disfavor homosexuals are subject to heightened scrutiny.  But the Court held only that the Equal Protection Clause was violated because the challenged statutes interfered with the fundamental right to marry, not that homosexuals enjoy special protections under the Equal Protection Clause.”

Since the 6th Circuit has, in its pre-Obergefell rulings, always applied rational basis review to sexual orientation discrimination claims, the court decided that under the “law of the circuit” doctrine, it must do so in this case.  Applying that approach here, the court found that the police had provided an adequate basis for their decision to arrest the men and take them to the police station in their underwear — concern for the officers’ safety, as the two men were agitated and were being arrested for assaulting a police officer — which, said the court, “is presumed valid and rationally related to a legitimate public interest.  Therefore,” wrote Batchelder, “Plaintiffs’ grievance regarding being kept in their boxer shorts until the police could issue them jumpsuits, even if motivated in part by sentiments regarding homosexual behavior, still does not violate the Constitution.”

Judge Sutton, concurring in the court’s decision to affirm the district court’s grant of summary judgment, wrote that it was unnecessary to take on the equal protection issue, as the plaintiffs’ counsel at oral argument had waived the claim by conceding that if the decision to strike the affidavits was upheld the constitutional claim would have to be dismissed.  Judge Sutton, of course, was the author of the 6th Circuit’s opinion that was reversed by the Supreme Court in Obergefell v. Hodges.  In that opinion, he had found that the plaintiffs’ equal protection claim was not subject to heightened scrutiny, for essentially the same reasons that Judge Batchelder articulated in the panel opinion in this case.

Plaintiffs were represented by Sara Gedeon on the appeal.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal Court Says Old Sodomy Conviction Cannot Be Basis for Current Sex Offender Registration Requirement

Posted on: December 16th, 2013 by Art Leonard No Comments

Finding that prosecuting a man for failing to register as a sex offender on the basis of an old conviction under an unconstitutional sodomy law would be “unthinkable,” U.S. District Judge Amy Totenberg granted a writ of habeas corpus to Charlton Green on December 9, directing that the State of Georgia release him from the obligations of probation to which he had been sentence.

Green, then age 20, and three friends, another young guy and two young women, were fooling around in a hotel room, and Green and the other guy got into sex.  This happened in Georgia in 1997, at which time the Georgia sodomy law was still in effect. It had been challenged in the U.S. Supreme Court in 1986 in the case of Bowers v. Hardwick, but the Supreme Court rejected the challenge.

Somehow, Charlton’s activity came to the attention of the police, and he was charged with violating the sodomy law.  He pled guilty, and was initially sentenced to probation as a first offender, but he violated the terms of probation and was convicted and sentenced in January 1999.  (By that time, the Georgia Supreme Court had declared, In Powell v. State (1998), that the state’s sodomy law was unconstitutional as applied to private, adult consensual activity, but evidently this made no difference to the court that sentenced Charlton in January 1999.)  Part of his sentence was to be designated as a sex offender and required to register with local law enforcement authorities wherever he was living.   Several years later, in 2003, the U.S. Supreme Court, ruling in a case involving the Texas Homosexual Conduct Law, overruled its 1986 decision in Bowers v. Hardwick, holding that private, adult consensual same-sex activity was protected under the Due Process Clause and could not be made the subject of criminal prosecution.  In 2003, the Court said that Bowers v. Hardwick was “wrong when it was decided.”

This means, logically, that in 1997 Charlton Green had pled guilty under an unconstitutional statute.

Dial forward to 2009.  Green’s mother fell ill with cancer, and he moved to her home to help care for her.  Contacting the local sheriff to register his presence slipped his mind.  But he was indicted and convicted in May 2009 in the Cherokee County Superior Court for failing to register as a sex offender.  The sole basis of his being a sex offender, of course, was the 1997 guilty plea under the unconstitutional sodomy law.  In response to this conviction in May 2009, Charlton was sentenced to 30 years in prison, two to actually serve and 28 on probation.   Charlton’s attorney at the trial failed to raise the issue that the law under which he had been originally convicted was unconstitutional.   After his conviction, Charlton got a new attorney and sought a new trial, raising the unconstitutionality issue for the first time and arguing that he had ineffective assistance from counsel in the first proceeding.  The trial court denied the motion, and the Georgia Court of Appeals affirmed the denial, saying that he could not show he had been prejudiced because his conduct in that hotel room was not “private” and thus not within the protection of the Powell and Bowers rulings.  While Charlton’s appeal was pending, he applied to the Pickens County Superior Court to get his original sodomy convicted vacated, and Judge Brenda Weaver vacated the conviction, finding “that the undisputed evidence supports Mr. Green’s claim to the protections of Powell and Lawrence,” but the Georgia Court of Appeals reversed this ruling on grounds of procedural irregularity.

After relating all of this, U.S. District Judge Amy Totenberg wrote, “Thus, as it stands, Green remains subject to the reporting requirement of O.C.G.A. Sec. 42-1-12 based on his conviction under a law that has been deemed unconstitutional.  On that basis, he petitions for a writ of habeas corpus.”  Charlton has finished serving his two year sentence, but remains subject to the 28 year probation sentence, so he remains eligible to seek the writ as somebody whose liberty remains constrained by the state.

Judge Totenberg decided that for purposes of deciding this petition, it is essentially irrelevant that Charlton’s original conviction has not been vacated and is not subject to appeal at this time.  However, she concluded that it was clear that Green received ineffective assistance of counsel in 2009 when his lawyer failed to raise the unconstitutionality of the sodomy law as a defense to his prosecution for failing to register. “The state cannot give legal effect to a conviction under an unconstitutional criminal statute,” wrote Totenberg.  “Convicting Green for failing to register as a sex offender solely because he was previously convicted under the unconstitutional anti-sodomy statute would amount to ‘state-sponsored condemnation’ of constitutionally protected behavior” she continued, citing both Lawrence v. Texas and the recent 4th Circuit decision, MacDonald v. Moose, which struck down the Virginia sodomy law in reliance on Lawrence.

Totenberg also rejected the state trial court’s reasoning that by pleading guilty to the sodomy charges, Charlton Green had “waived his defense” including any future defense based on the unconstitutionality of the sodomy law.  She wrote that it would not “comport with fundamental fairness and due process of law to allow a guilty plea to waive a constitutional challenge to the use of a conviction based on constitutionally protected, private consensual sexual conduct that cannot be criminalized.”

The judge also rejected the state trial court’s conclusion that although Powell and Lawrence had changed the law, “those changes did not apply to this factual situation because the conduct was not ‘private.'”  The trial court was undoubtedly relying on old cases that have held that for sexual conduct to be private, it must occur in an enclosed place in which only the two participants are present.  Under this reasoning, group sex involving more than two participants or sex taking place where non-participants are observing cannot be considered to be taking place in “private.”  Judge Totenberg rejected that idea, citing a 2000 Georgia Court of Appeals decision, Mauk v. State, 529 S.E.2d 197, which said “a private place is a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance.”  By that standard, Totenberg found that the hotel room being used by the four young adults was a “private place.”  After citing prior Georgia cases holding that a hotel room is a “private place,” she wrote, “And the presence of two private, consenting observers does not transform the private act into a public one.  Here, the two women present in the hotel room during the sexual act were not random members of the public but personal friends.  While the Court recognizes that the presence of others might be relevant to the question of whether sexual conduct is private, the constitutional right to privacy of young adults engaging in consensual sexual conduct behind the closed doors of a hotel room is not vitiated by the simple fact that four people are in the room.”

She also anticipated any argument about the retroactivity of Powell and Lawrence, noting that Georgia courts had already accepted the proposition that “the rule established in Lawrence is a new rule of substantive law that may be applied retroactively to cases on collateral review.”  This would certain seem obvious from the Lawrence Court’s statement that Bowers v. Hardwick was wrong when it was decided, not just prospectively from 2003 on.

Totenberg drew an analogy to the Supreme Court’s ruling on interracial marriage in explaining why she was issuing a writ of habeas corpus to Green.  “Just as it is unthinkable that a conviction of miscegenation entered before Loving v. Virginia, 388 U.S. 1 (1967), was decided could be used after that decision to establish an element of a crime, so is it unthinkable that a conviction based on constitutionally protected private consensual sexual conduct entered before Powell or Lawrence was decided could be so used.  Counsel who fails to object to the use of an extant sodomy conviction that on its face raises serious concerns as to its constitutional validity has failed to provide effective assistance.”  Since Green did not have effective representation at his 2009 trial, his conviction had to be vacated.  Therefore, Totenberg both ordered that the conviction be vacated and that Green be “released from the sentence imposed,” and she ordered the State of Georgia to “take all actions necessary consistent with the holding of this Order.”

The lawyer who stuck with Green through this extended and time-consuming litigation and successfully argued for this relief is Stephen R. Scarborough.

Michigan may be the next state to defend its ban on same-sex marriage in a federal court trial.

Posted on: July 2nd, 2013 by Art Leonard No Comments

Senior U.S. District Judge Bernard A. Friedman, appointed to the court by President Ronald Reagan in 1988, ruled on July 1 that a Michigan lesbian couple is entitled to a trial of their claim that the state adoption law, forbidding same-sex couples to jointly adopt children, and the Michigan Marriage Amendment (MMA), forbidding same-sex marriages, violate their rights under the 14th Amendment.  Rejecting the state’s motion to dismiss the case, Judge Friedman cited the Supreme Court’s June 26 decision striking down Section 3 of the Defense of Marriage Act, U.S. v. Windsor, to support the “plausibility” of the couple’s constitutional claim.

April DeBoer and Jayne Rowse, the plaintiffs, are both employed as nurses and have lived together for six years.  Between them, they have adopted three children as single parents.  They would like to jointly adopt the three children to solidify their family relationship, but Michigan’s adoption law forbids it because they are not married, and the Michigan Marriage Amendment denies them the right to marry.

They filed suit in federal court, claiming that the state’s prohibition on joint adoptions by same-sex couples violates their equal protection rights.  In pre-trial arguments, Judge Friedman suggested that their challenge would not be complete if it was confined to the adoption law, and they amended their complaint at his suggestion to add a claim that the state’s ban on same-sex marriage violates their rights as well. 

The state moved to dismiss, arguing that the plaintiffs cannot show that the Michigan Marriage Amendment lacks a rational relationship to a legitimate state interest, and that there is no fundamental right under the constitution for same-sex couples to marry.

Friedman denied the motion, holding that the claims cannot be decided as a matter of law at this point, largely because of the Supreme Court’s DOMA decision.

On the one hand, he observed, there is language in that decision that defendants will cite, about the state’s “historic and essential authority to define the marital relation” (quoting from Justice Kennedy’s opinion).  “They will couch the popular referendum that resulted in the passage of the MMA as ‘a proper exercise of [the state’s] sovereign authority within our federal system, all in the way that the Framers of the Constitution intended,” he wrote, again quoting from Kennedy’s opinion.

On the other hand, of course, he asserted that “plaintiffs are prepared to claim Windsor as their own; their briefs sure to be replete with references to the newly enthroned triumvirate of Romer v. Evans, Lawrence v. Texas, and now Windsor.  And why shouldn’t they?  The Supreme Court has just invalidated a federal statute on equal protection grounds because it ‘place[d] same-sex couples in an unstable position of being in a second-tier marriage.’  Moreover, and of particular importance to this case, the justices expressed concern that the natural consequence of such discriminatory legislation would not only lead to the relegation of same-sex relationships to a form of second-tier status, but impair the rights of ‘tens of thousands of children now being raised by same-sex couples’ as well.  This is exactly the type of harm plaintiffs seek to remedy in this case.”

The court’s role in deciding a motion to dismiss is to decide whether the plaintiffs have asserted a plausible legal claim, assuming their factual allegations to be true.  “Construing the facts in the light most favorable to plaintiffs, and in view of the Supreme Court’s current statement of the law, this Court cannot say that plaintiffs’ claims for relief are without plausibility,” Friedman concluded as to the equal protection claim.  He commented that the plaintiffs’ due process claim “will likewise move forward because it states a plausible claim for relief,” citing Judge Vaughn Walker’s original Proposition 8 decision, which now stands as an unappealed district court opinion.

Friedman ordered that counsel meet with him on July 10 to set a trial date.  From the tone of his opinion, he is eager to decide this case on the merits, and seems well disposed towards the plaintiffs’ claims.

Virginia Attorney General Goes to the Mat to Save Unconstitutional Sodomy Law

Posted on: April 5th, 2013 by Art Leonard No Comments

Virginia Attorney General Kenneth Cuccinelli has asked the 4th Circuit Court of Appeals to reconsider and overrule a decision by a three-judge panel of that court that held last month that Virginia’s sodomy law is facially unconstitutional.  Citing the dissenting opinion by one member of the panel ruling in MacDonald v. Moose, Cuccinelli emphasized that the case involving an adult man who solicited a teenage girl to have oral sex, and argued that Virginia should be allowed to prosecute such cases.

Ten years ago, the U.S. Supreme Court ruled in Lawrence v. Texas that the Texas Homosexual Conduct  Law, which made it a crime for gay people to have sex in that state, violated the 14th Amendment Due Process Clause.  In his opinion for the Court, Justice Anthony M. Kennedy, Jr., wrote that the Court’s 1986 decision, Bowers v. Hardwick, which had rejected a 14th Amendment challenge to the Georgia sodomy law, was “wrong” when it was decided and thus was overruled as part of the Lawrence decision.  The Georgia sodomy law, unlike the Texas law, prohibited all persons in Georgia from engaging in anal or oral sex, regardless of their gender or age.

One would have thought that as of 2003, when Lawrence was decided, all state sodomy laws would be considered unconstitutional and no longer enforceable, whether focused just on gay sex or more broadly on all oral or anal sex, and that state legislatures would get busy repealing them and replacing them, if desired, with laws that only criminalized conduct that was not constitutionally protected.  In the Lawrence decision, Justice Kennedy emphasized that the case before the Court did not involve sex with minors, prostitution, public acts, or situations where consent was lacking.  The Lawrence case involved two gay men arrested in one of their apartments under “fluke” circumstances, who were claimed by police officers to be engaging in sex.  (Subsequent investigation shows that the men probably were not engaging in sex.  See Dale Carpenter’s excellent and highly readable book about the case, “Flagrant Conduct,” published last year.)

But this thought, it turns out, was mistaken.  Many state legislatures have failed to remove the unconstitutional sodomy laws from their statute books, and one such is Virginia, despite unsuccessful legislative proposals to do so.  The Virginia sodomy law provides, “If any person carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty” of a felony.  The provision is similar to the Georgia sodomy law that was wrongly upheld in Bowers v. Hardwick, but subsequently declared by the Georgia Supreme Court to violate that state’s constitution.

Virginia state courts have taken the position that people can continue to be prosecuted under the Virginia sodomy law, and under a companion law that makes it a crime to solicit somebody to engage in a felony, so long as the conduct being prosecuted does not fall within the range of conduct that the Supreme Court found to be constitutionally protected in Lawrence v. Texas. 

In 2004, the state prosecuted William MacDonald, then 47, for soliciting oral sex from a 17-year-old girl.  The prosecutor charged MacDonald with a felony, he was found guilty, and the trial court sentenced him to ten years in prison (with nine years suspended) on this charge, plus twelve months for the misdemeanor offense of contributing to the delinquency of a minor.  MacDonald argued that he could not be prosecuted for soliciting a felony, because in light of Lawrence v. Texas, decided the year before, the Virginia sodomy law was unconstitutional.  Rejecting this argument, the state courts at every level took the position that because the girl was a minor (under age 18), Lawrence v. Texas did not apply.

After exhausting his state appeals, MacDonald filed a petition for habeas corpus in the U.S. District Court, arguing that his conviction violated his federal constitutional rights.  Under the federal statute governing petitions for habeas corpus, because the state courts had ruled on the merits of MacDonald’s federal constitutional claim, the federal court could only rule in MacDonald’s favor on one of two grounds: either that the state court’s ruling was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or that the state court’s decision was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Judge Gerald Bruce Lee of the U.S. District Court for the Eastern District of Virginia ruled against MacDonald, denying the petition for habeas corpus, finding that the Virginia courts were not clearly wrong in their construction of the Lawrence decision.  But a panel of the U.S. Court of Appeals for the 4th Circuit, ruling on March 12, 2013, disagreed, voting 2-1 to grant MacDonald’s petition and declare that his conviction was unconstitutional.

The decision for the majority of the panel, by Circuit Judge Robert Bruce King, acknowledged that the Supreme Court had said in Lawrence that the case before it did not involve minors and various other factors.  But, he said, that failed to take account of everything that the Supreme Court did and said in its ruling.  “In Lawrence,” he wrote, “the Supreme Court plainly held that statutes criminalizing private acts of consensual sodomy between adults are inconsistent with the protections of liberty assured by the Due Process Clause of the Fourteenth Amendment.”   On its face, the Virginia statute continues to treat such conduct as criminal.  Judge King pointed out that in Lawrence the Supreme Court specifically granted review on the question whether Bowers v. Hardwick should be overruled.  And, as noted above, the Supreme Court answered that question in the affirmative, stating that “the rationale of Bowers does not withstand careful analysis. . .  Bowers was not correct when it was decided, and it is not correct today. . .  Bowers v. Hardwick should be and now is overruled.” 

If Bowers is overruled, that means that a sodomy law like the Georgia law challenged in Bowers is unconstitutional, said King.  “The Lawrence Court thus recognized that the facial due process challenge in Bowers was wrongly decided.  Because the invalid Georgia statute in Bowers is materially indistinguishable from the anti-sodomy provision being challenged here, the latter provision likewise does not survive the Lawrence decision.”  Bowers would be considered a “facial” due process challenge because it was not an appeal from a criminal prosecution, but rather an action filed in federal court for a declaratory judgment that the Georgia law was unconstitutional.  Michael Hardwick’s constitutional standing to bring the action was based on his arrest by Atlanta police for violating the statute, but that did not limit the scope of his lawsuit; although Justice Byron White’s opinion for the Bowers Court spoke as if the case was limited to homosexual conduct, it was not.

“True enough,” wrote King, “the Supreme Court implied in Lawrence that a state could, consistently with the Constitution, criminalize sodomy between an adult and a minor. . .  The Court’s ruminations concerning the circumstances under which a state might permissibly outlaw sodomy, however, no doubt contemplated deliberate action by the people’s representatives, rather than by the judiciary.”  In other words, if Virginia wants to outlaw adults soliciting minors to engage in constitutionally unprotected conduct, it can do so, but it must do so explicitly.  In fact, there is a Virginia statute making it a crime for an adult to engage in sex with a person under the age of 15, and another statute criminalizing incestuous sodomy involving both minors and adults, but those statutes clearly do not reach MacDonald’s conduct in this case.  King concluded, “The anti-sodomy provision itself, however, which served as the basis for MacDonald’s criminal solicitation conviction, cannot be squared with Lawrence without the sort of judicial intervention that the Supreme Court” has condemned as violating the separation of powers as between courts and legislatures.  In the majority’s view, the decision how much conduct to prohibit after Lawrence is a legislative decision, and the court should not presume to know where the legislature would draw its lines.

Circuit Judge Albert Diaz dissented, asserting that under the statute governing habeas corpus, the Virginia courts had not clearly violated Federal constitutional law by upholding MacDonald’s conviction, pointing out that lower federal courts and state courts have differing views over the scope of the Lawrence ruling.  “The majority ultimately may be proved right that the Virginia ‘anti-sodomy provision facially violates the Due Process Clause of the Fourteenth Amendment,'” he wrote.  “But because the matter is not beyond doubt after Lawrence, and because the district court was bound to give Virginia courts the benefit of that doubt on federal collateral review, I respectfully dissent.” 

Diaz contended that the majority misconstrued Lawrence as having invalidated the Texas sodomy law on its face, as opposed to invalidating at as applied to the Petitioners in that case, John Lawrence and Tyron Garner.  He pointed out that the language of the Lawrence opinion would support an interpretation that it was being treated by the Court as an “as applied” challenge to the law, which would mean that the Texas Homosexual Conduct Law could still be used to prosecute cases of sex involving minors, prostitution, public acts, or non-consensual situations.  In fact, the Texas legislature has refused to repeal or amend that law, and law enforcement authorities in Texas presumably continue to rely upon it to prosecute cases that don’t involve private consensual adult sex. 

“In any event,” wrote Diaz, “in order for MacDonald to prevail on his federal habeas petition, it must be clear that Lawrence facially invalidated all sodomy statutes.  Nowhere in the opinion does the Court do that.  The majority nevertheless infers the unconstitutionality of Virginia’s anti-sodomy provision from the fact that Lawrence expressly overruled Bowers.  Again, this is a bridge too far.  If it is difficult to discern from the Lawrence opinion whether it invalidated all sodomy statutes, it is even more of a stretch to do so by negative inference from the case it overturned.” 

Diaz also argued that the majority had misconstrued another Supreme Court case in its holding that the Virginia sodomy statute could not be judicially construed to prohibit  conduct outside of that protected under Lawrence.  “In order for the Virginia anti-sodomy provision to escape facial invalidity, it need not criminalize only conduct that falls outside constitutional protection,” he argued.  “Indeed, to suggest that a state must excise the constitutional defects of a statute by legislative revision before enforcing those portions that pass constitutional muster would turn every as-applied ruling into a facial invalidation,” he asserted.  Diaz contended that under the habeas corpus statute, a state court’s ruling on the constitutionality of a criminal statute could only be invalidated by the federal court if there is “a certainty, not just a likelihood, that a state court ruling ‘reached a decision contrary to clearly established federal law.’  Unlike the majority,” he concluded, “the district court here remained faithful to that distinction in declining to issue the writ.”

While it would appear to be a better use of the state’s resources for Cuccinelli to focus on getting the legislature to amend Virginia’s sodomy law so that it only applies to constitutionally-unprotected activity, Cuccinelli is seeking the Republican nomination for governor and, appealing to the core Republican constituency, it undoubtedly makes political sense for him to pose as a defender of public morality seeking to overturn a federal decision holding that sodomy law to be facially unconstitutional. 

It is possible that the full 4th Circuit bench, consisting of  fifteen judges, may agree with Judge Diaz’s dissent.  As to the politics of the thing, however, out of those 15 judges, six were appointed by President Obama, four by President Clinton, and the remainder by Republican presidents.  The 4th Circuit is one of the few federal circuits that President Obama has successfully converted to a majority appointed by Democratic presidents, as there were numerous vacancies on that circuit and a genuine emergency in handling appeals, which prompted the Senate to act relatively expeditiously in confirming his nominees as compared to the situation in some other circuits.  The majority of the MacDonald panel, Judge King and Circuit Judge Diana Gribbon Motz, were  appointed by President Clinton.  Dissenting Judge Diaz was appointed by President Obama.

4th Circuit Panel Debates Scope of Lawrence v. Texas; Majority Strikes Virginia Sodomy Law

Posted on: March 13th, 2013 by Art Leonard 1 Comment

Did Lawrence v. Texas, the U.S. Supreme Court’s 2003 decision holding that the Texas Homosexual Conduct Law violated the 14th Amendment Due Process clause, firmly establish a broad principle of federal constitutional law, or was it a narrow ruling that a state sodomy law cannot be used to prosecute private, consensual adult homosexual conduct?  A three-judge panel of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, Virginia, debated that question in a March 12 decision, MacDonald v. Moose, 2013 Westlaw 935778, a majority ruling that Virginia’s sodomy law is clearly unconstitutional, while a dissenter argued that the law was constitutional as applied to the case of William Scott MacDonald.

According to the majority opinion by Circuit Judge Robert Bruce King, construing Lawrence requires taking account of the Supreme Court’s overruling of Bowers v. Hardwick, the 1986 decision that upheld the constitutionality of Georgia’s sodomy law.  In Lawrence, the Supreme Court majority said that Bowers was wrong when it was decided and should be overruled.  To King (and Judge Diana Gribbon Motz, who joined his opinion), this inevitably meant that the Virginia sodomy law, similar to the Georgia law considered in Bowers, must be unconstitutional on its face.  That being the case, soliciting sodomy could not be a criminal act, and the woman involved in this case was old enough to consent in light of other Virginia criminal statutes.

Dissenting Judge Albert Diaz saw things differently, pointing out that the Lawrence Court was careful to specify what it was and was not deciding, emphasizing that the case involved private, consensual adult sex, and that the Court was not considering any other circumstances.

In the case before the 4th Circuit, William Scott MacDonald was seeking a writ of habeas corpus, challenging his conviction under a Virginia solicitation statute.  MacDonald, an adult man, was convicted of criminal solicitation of oral sex with a 17-year-old woman.  In order for his solicitation to be a crime, the act he was soliciting would itself have to be a crime, and the Virginia courts relied on the sodomy law, which the legislature has refused to repeal despite the Lawrence ruling casting doubt on its constitutionality.  At all levels of the Virginia court system, the courts took the position that MacDonald’s conviction was constitutional because he was soliciting oral sex from a minor, and in Lawrence the Supreme Court was deciding whether the Texas law could be used to prosecute consenting adults.  Even the federal trial judge who heard MacDonald’s pro se petition for the writ of habeas corpus agreed with the Virginia courts.

Judge King wrote, “In Lawrence, the Supreme Court plainly held that statutes criminalizing private acts of consensual sodomy between adults are inconsistent with the protections of liberty assured by the Due Process Clause of the Fourteenth Amendment.”  The Virginia law makes no distinctions between private and public conduct, consensual or nonconsensual conduct, or conduct involving people of different ages.  It just broadly outlaws all acts of oral and anal sex, and, thus, was facially unconstitutional, according to the majority of the panel.  King found that it would violate the respective roles of courts and legislatures for the court to effectively revise the Virginia sodomy law in order to preserve its constitutionality by applying it solely to cases falling outside the specific factual parameters of Lawrence.  Judge Diaz found, to the contrary, that such an approach is supported by precedent, construing a statute narrowly to preserve its constitutionality being a well-established procedure for appellate courts, and that application of the law to MacDonald is constitutional.

Interestingly, all three judges were appointed by Democratic presidents: Bill Clinton apointed Judge Motz, and Barack Obama appointed Judges King and Diaz.  Given its resistance to revising its sodomy law, one suspects that Virginia will seek en banc review from the 4th Circuit, or perhaps review from the Supreme Court.