New York Law School

Art Leonard Observations

Posts Tagged ‘LGBTQ rights’

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. . .

TWO MORE LGBTQ-RELATED CONTROVERSIES DROP OFF THE SUPREME COURT DOCKET

Posted on: January 10th, 2018 by Art Leonard 2 Comments

As the Supreme Court’s 2017-18 Term began in October, it looked like a banner term for LGBTQ-related cases at the nation’s highest court. Petitions were pending asking the Court to address a wide range of issues, including whether LGBTQ people are protected against discrimination under federal sex discrimination laws covering employment (from Georgia) and educational opportunity (from Wisconsin), whether LGBTQ people in Mississippi had standing to seek a federal order to prevent a viciously anti-gay religiously-motivated law from going into effect, and whether the Texas Supreme Court erred in holding that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), did not necessarily require a municipal employer to treat same-sex married couples the same as different-sex married couples in their employee benefits plans.  The Court had already granted review in a “gay wedding cake” case from Colorado (Masterpiece Cakeshop, which was argued on December 5), and another petition involving a Washington State florist who refused to provide floral decorations for a same-sex wedding was waiting in the wings.

 

But the hopes for a blockbuster term have rapidly faded. In December, the Court declined to hear the employee benefits case and the Title VII employment discrimination case.  And now in January, the Court has declined to hear the Mississippi cases, Barber v. Bryant and Campaign for Southern Equality v. Bryant, and the Wisconsin case, Whitaker v. Kenosha Unified School District, has settled, with the school district agreeing to withdraw its Supreme Court petition.   It may be that the only LGBTQ-related issue that the Court decides this term is the one it heard argued in December: whether a business owner’s religious objections to same-sex marriage or his right to freedom of speech would privilege him to refuse to make a wedding cake for a same-sex couple.  An opinion expected sometime in the coming months.

On January 8, the Supreme Court refused to review a ruling by the 5th Circuit Court of Appeals, Barber v. Bryant, 860 F.3d 345 (5th Cir.), petition for rehearing en banc denied, 872 F.3d 671 (2017), which had dismissed a constitutional challenge to Mississippi’s infamous H.B. 1523, a law enacted in 2016 that protects people who discriminate against LGBTQ people because of their religious or moral convictions.  The 5th Circuit had ruled that none of the plaintiffs – either organizations or individuals – in two cases challenging the Mississippi law had “standing” to bring the lawsuits in federal court.

H.B. 1523, which was scheduled to go into effect on July 1, 2016, identifies three “religious beliefs or moral convictions” and protects against “discrimination” by the state anybody who acts in accord with those beliefs in a wide range of circumstances. The beliefs, as stated in the statute, are: “(a) Marriage is or should be recognized as the union of one man and one woman; (b) sexual relations are properly reserved to such a marriage; and (c) male (man) or female (woman) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  Among other things, the law would protect government officials who rely on these beliefs to deny services to individuals, and would preempt the handful of local municipal laws in the state that ban discrimination because of sexual orientation or gender identity, so that victims of discrimination would have no local law remedy.  Mississippi does not have a state law banning sexual orientation or gender identity discrimination, so H.B. 1523 in relation to private businesses and institutions was mainly symbolic when it came to activity taking place outside of the cities of Jackson, Hattiesburg and Oxford, or off the campus of the University of Southern Mississippi.

Two groups of plaintiffs brought constitutional challenges against the law in the U.S. District Court for the Southern District of Mississippi, where the case came before Judge Carlton W. Reeves, the same judge who ruled for plaintiffs in a case challenging Mississippi’s ban on same-sex marriage a few years earlier. He issued a preliminary injunction against implementation of H.B. 1523 on June 30, 2016, the day before it was to go into effect, finding that it would violate the 1st Amendment by establishing particular religious beliefs as part of the state’s law.  The plaintiffs also challenged it on Equal Protection grounds. Judge Reeves refused to stay his preliminary injunction, and so did the 5th Circuit.

The state appealed the grant of preliminary injunction to the 5th Circuit, where a unanimous three-judge panel ruled on June 22, 2017, that the district court did not have jurisdiction to issue the injunction because, according to the opinion by Circuit Judge Jerry Smith, none of the plaintiffs could show that they had suffered or were imminently likely to suffer a “concrete and particularized injury in fact,” which was necessary to confer the necessary “standing” to challenge the law in federal court.  In the absence of standing, he wrote, the preliminary injunction must be dissolved and the case dismissed.

The plaintiffs asked the full 5th Circuit to reconsider the ruling en banc, but the circuit judges voted 12-2 not to do so, announcing that result on September 29.  The dissenters, in an opinion by Judge James L. Dennis, bluntly stated that “the panel decision is wrong” and “misconstrues and misapplies the Establishment Clause precedent.”  Indeed, wrote Judge Dennis, “its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.”

Judge Dennis pressed home the point by citing numerous cases from other circuits which, he held, would support allowing the plaintiffs in this case to seek a preliminary injunction blocking the law from going into effect.  This gave hope to the plaintiffs that they might be able to get the Supreme Court to take the case and reverse the 5th Circuit, since one of the main criteria for the Supreme Court granting review is to resolve a split in authority between the circuit courts on important points of federal law.

However, on January 8 the Court denied the petitions the two plaintiff groups had filed, without any explanation or open dissent, leaving unresolved important questions about how and when people can mount a federal court challenge to a law of this sort. In the meantime, shortly after the 5th Circuit had denied reconsideration, H.B. 1523 went into effect on October 10.

A challenge to H.B. 1523 continues in the District Court before Judge Reeves, as new allegations by the plaintiffs require reconsideration of their standing and place in question, especially in light of the Supreme Court’s June 2017 ruling, Pavan v. Smith, 137 S. Ct. 2075, whether the law imposes unconstitutional burdens on LGBTQ people seeking to exercise their fundamental constitutional rights.

Two days after the Court announced it would not review the 5th Circuit ruling, the parties in Whitaker, 858 F. 3d 1034 (7th Cir. 2017), involving the legal rights of transgender students under Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the 14th Amendment, announced a settlement.  Under their agreement the school district will withdraw its cert petition.

The Supreme Court had been scheduled to hear a similar transgender student case last March, Gloucester County School Bd. v. G. G. ex rel. Grimm, but that case was dropped from the docket after the Trump Administration withdrew a Guidance on Title IX compliance that had been issued by the Obama Administration.  Since the 4th Circuit’s decision in Gavin Grimm’s case had been based on that Guidance rather than on a direct judicial interpretation of the statute, the Supreme Court vacated the 4th Circuit’s ruling and sent the case back to the 4th Circuit for reconsideration. See 137 S. Ct. 1239 (Mar. 6, 2017). That court, in turn, sent it back to the district court, which dismissed the case as moot since Grimm had graduated in the interim.

Ashton Whitaker is a transgender boy who graduated from Tremper High School in the Kenosha School District last June. His case would have given the Supreme Court a second chance to address the Title IX issue.  Whitaker transitioned while in high school and asked to be allowed to use the boys’ restroom facilities, but district officials told him that there was an unwritten policy restricting bathroom use based on biological sex.  He sued the district under Title IX and the Equal Protection Clause.  U.S. District Judge Panela Pepper (E.D. Wisconsin) issued a preliminary injunction on Whitaker’s behalf in September 2016, and refused to stay it pending appeal.  See 2016 WL 5239829 (Sept. 22, 2016).

On May 30, 2017, the 7th Circuit upheld Judge Pepper’s ruling, finding that even though the Trump Administration had withdrawn the prior Title IX Guidance, both Title IX and the 14th Amendment require the school to recognize Whitaker as a boy and to allow him to use boys’ restroom facilities.  The school district petitioned the Supreme Court on August 25 to review the 7th Circuit’s decision, even though Whitaker had graduated in June.

In the meantime, Judge Pepper ordered the parties to mediation to attempt a settlement. Whitaker’s graduation in June undoubtedly contributed to the pressure to settle, and the parties asked the Supreme Court several times to extend the deadline for Whitaker to file a formal response to the petition as the negotiations continued.  According to press reports on January 10, the case settled for $800,000 and an agreement that the district would withdraw its petition.

The settlement and withdrawal of the petition leaves the 7th Circuit’s opinion standing as the first federal circuit court ruling to hold on the merits that Title IX and the 14th Amendment require public schools to respect the gender identity of their students and to allow students to use sex-designated facilities consistent with their gender identity.  However, lacking a Supreme Court ruling on the point this decision is only binding in the three states of the 7th Circuit: Wisconsin, Illinois, and Indiana, the same three states bound by another 7th Circuit last year holding that employment discrimination because of sexual orientation violates Title VII of the Civil Rights Act of 1964.

 

5th Circuit Tosses Challenge to Mississippi HB 1523 on Standing Grounds

Posted on: June 24th, 2017 by Art Leonard No Comments

A three-judge panel of the Houston-based U.S. Court of Appeals for the 5th Circuit dissolved a preliminary injunction and dismissed two lawsuits challenging the constitutionality of H.B. 1523, a Mississippi law enacted last year intended to assure that people who hold anti-gay or anti-transgender views cannot be subject to any adverse action from their state or local governments.  Barber v. Bryant, 2017 Westlaw 2702075, 2017 U.S. App. LEXIS 11116 (June 22, 2017).

U.S. District Judge Carlton Reeves, finding that the plaintiffs were likely to prevail on their claim that the law violated their equal protection rights as well as the constitutional prohibition on establishment of religion, issued a preliminary injunction last June 30, so the law, which was to become effective last July 1, has not gone into effect. Ruling on June 22, the panel found that none of the plaintiffs had standing to bring this challenge to the law because, in the court’s opinion, none had suffered an individualized injury that would give them the right to challenge the law.

The court was careful to state that because it did not have jurisdiction over the case, it was not expressing an opinion about whether the law was constitutional.

Plaintiffs’ attorneys from the two cases announced that they would seek “en banc” review by the full 5th Circuit bench and, failing that, would petition the Supreme Court.  The 5th Circuit is a notably conservative bench, however, with only four of the fourteen active judges having been appointed by Democratic presidents.  The three-judge panel that issued this decision consisted entirely of Republican appointees.

Section 2 of the law identifies three “religious beliefs or moral convictions” and states that people who act in accord with those beliefs or convictions are protected from “discriminatory” action by the state, such as adverse tax rulings, benefit eligibility, employment decisions, imposition of fines or denial of occupational licenses.  The “religious beliefs or moral convictions” are as follows:  “(a) Marriage is or should be recognized as the union of one man and one woman; (b) sexual relations are properly reserved to such a marriage; and (c) male (man) or female (woman) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

The statute provides further that people who claim to have suffered some adverse action because they act on these beliefs have a right to sue state officials, and to use this law as a defense if they are sued by individuals.

Making its effect more concrete, the statute specifically protects religious organizations that want to discriminate against LGBTQ people in employment, housing, child placement, and marriages, and protects parents who decide to “raise their foster or adoptive children in accordance” with one of the three listed beliefs. Businesses that provide wedding services are protected against liability for denying such services to LGBTQ people, as are medical and mental health care providers, except for emergency medical situations.  For example, a health care provider cannot interfere with visitation with a patient by their designated representative (who may be a same-sex partner or spouse).  State agencies that license professionals may not refuse to license somebody because they hold or articulate one of the listed beliefs.

The statute also specifically protects “any entity that establishes sex-specific standards for facilities such as locker rooms or restrooms,” and protects state employees who want to voice their beliefs as listed in the statute.  It also specifically allows county clerks and judges to refuse to deal with same-sex couples seeking to marry, so long as arrangements are made to allow such marriages to take place without delay.

To sum up, the statute clearly sought to exempt religious organizations and individuals from having to treat LGBTQ people as equal with everybody else, providing “special rights” to discriminate against LGBTQ people and same-sex couples.  Ironically, because Mississippi law does nothing to protect the civil rights of LGBTQ people, many of the applications of this statute are more symbolic than real, at least as far as state law goes.  A Mississippi landlord incurs no state law penalty for refusing to rent a dwelling place to a same-sex couple, for example, and businesses in Mississippi are free to deny goods or services to people who are gay or transgender without incurring any state law penalty.  Few local governments in Mississippi have adopted laws that would be affected, although some educational institutions would clearly be affected, especially by the facilities access provision.

The problem for the plaintiffs, in the eyes of the court of appeals, was that the judges could not see that any of the plaintiffs have the kind of particularized injury to give them standing to sue the state in federal court when this law had not even begun to operate.  The plaintiffs had relied heavily on the argument that the law imposed a stigma, signaling second-class citizenship, and sought to enshrine by statute particular religious views, but the court rejected these arguments as insufficient.

The plaintiffs pointed to cases in which courts had ruled that plaintiffs offended by government-sponsored religious displays had been allowed to challenge them under the 1st Amendment in federal court, but Judge Jerry E. Smith, writing for the panel, rejected this analogy.  The court also rejected taxpayer standing, finding that H.B. 1523 did not authorize expenditures in support of religion.  The court found that by protecting both “religious beliefs and moral convictions,” the legislature had avoided privileging religion, since persons whose anti-gay beliefs were not religiously motivated would be protected from adverse government treatment under this act.  An atheist who believes same-sex marriage is wrong or that sex is immutable would be protected, even if these beliefs had no religious basis.

One plaintiff who based his standing on his intention to marry in the future was rejected by the court, which pointed out that he did not specify when or where he intended to marry.  “He does not allege that he was seeking wedding-related services from a business that would deny him or that he was seeking a marriage license or solemnization from a clerk or judge who would refuse to be involved in such a ceremony, or even that he intended to get married in Mississippi,” wrote Judge Smith.

The court made clear that if anybody actually suffers a concrete injury after the law goes into effect, they could file a new lawsuit and raise their challenge.