New York Law School

Art Leonard Observations

Posts Tagged ‘National Center for Lesbian Rights’

Federal Court Applies U.S. v. Windsor Retroactively to Allow Lesbian Widow to Seek Pension Benefit

Posted on: January 11th, 2016 by Art Leonard No Comments

U.S. District Judge Phyllis J. Hamilton ruled on January 4 in Schuett v. FedEx Corporation, 2015 U.S. Dist. LEXIS 244, 2015 WL 39890 (N.D. Cal.), that the Supreme Court’s 2013 decision in U.S. v. Windsor, striking down Section 3, a key provision of the Defense of Marriage Act (DOMA), could be applied retroactively to allow Stacey Schuett, a lesbian widow, to sue her late spouse’s employer for a survivor annuity.  Although the judge rejected a claim that the lawsuit could be brought directly under the company’s pension plan or as a breach of fiduciary duty action against the plan’s administrators, she accepted the argument that the plan could be sued for violating the Employee Retirement Income Security Act (ERISA) by failing to authorize the annuity for the plaintiff.

The story is complicated.  This account is based on what Stacey Schuett alleged in her complaint, as summarized by Judge Hamilton.

Schuett lived together in a committed relationship for 27 years with Lesly Taboada-Hall, who passed away from cancer on June 20, 2013, just a week before the Supreme Court’s momentous June 26 decisions rejecting an appeal of the federal court ruling that struck down California Proposition 8 and striking down Section 3 of DOMA.  For almost the entire length of their relationship, Taboada-Hall had been employed by Federal Express (FedEx), and she was a fully-vested participant in the FedEx Pension Plan.

As required by ERISA, the plan states that if an employee with a vested pension dies before retiring, their surviving spouse is eligible to receive a “qualified joint and survivor annuity” for the rest of their life.  The written pension plan uses the federal definition of spouse, directly referring to Section 3 of DOMA, which defined a spouse as “a person of the opposite sex who is a husband or wife.”  This is the definition that the Supreme Court declared unconstitutional on June 26, 2013.

Ms. Taboada-Hall was diagnosed with cancer in February, 2010, and as her condition worsened she took a medical leave of absence from FedEx in November 2012.  In February 2013, facing the fact that she would not be able to resume working, she contacted a FedEx human resources representative about her pension and other employee benefits, since she was eligible for early retirement under the terms of the pension plan.  The representative advised her not to retire, since she could continue on medical leave and have her medical expenses covered under the FedEx employee benefits plan.  She was asked about her other benefits, and was advised to name Schuett as her sole beneficiary on the other plans.  She also asked whether Schuett would get the “defined pension benefit” to which Taboada-Hall would be entitled, if Taboada-Hall died before retiring.  The representative said he did not know the answer to that and said “ask someone else.”

On June 3, 2013, the doctor advised that Taboada-Hall was terminal and did not have long to live.  Schuett and Taboada-Hall looked again through the benefits package, and noticed that the plan defined “spouse” with reference to DOMA.  Between June 3 and June 13, they had several conversations with FedEx human resources personnel trying to find out what would happen to Taboada-Hall’s benefits, and on June 13 they received the answer: Schuett would not receive a surviving spouse benefit because only opposite-sex partners could be recognized under the plan.

They quickly arranged with a Sonoma County Supervisor to come to their home and perform a civil marriage ceremony, even though they could not get a marriage license because Proposition 8 was still in effect.  The ceremony was witnessed by friends and family members on June 19. The next day Taboada-Hall died, and six days later Prop 8 and DOMA were declared unconstitutional.

What to do next?  Two days after the Prop 8 decision, the 9th Circuit Court of Appeals lifted its stay and Judge Vaughan Walker’s 2010 ruling holding Prop 8 unconstitutional went into effect.  Of course, the logical implication of the Supreme Court’s decision that the proponents of Prop 8 did not have standing to appeal Judge Walker’s decision was that Walker’s ruling should have been in effect from the summer of 2010 when it was issued, so by rights Taboada-Hall and Schuett should have been able to get a marriage license at any time since then.  Furthermore, the logical implication of the DOMA decision was that the federal definition of marriage was unconstitutional from the date it was enacted in 1996.

Schuett went into Sonoma County Superior Court on August 6, 2013, filing a Petition to Establish the Fact, Date, and Place of Marriage, contending that the June 19 marriage should be retroactively validated.  That court agreed, ruling on September 18, 2013, that the marriage was valid as of June 19, 2013, issuing a delayed certificate of marriage carrying that date.  This means that Schuett was a surviving widow when Taboada-Hall died on June 20, and thus she should be entitled to be treated as a surviving spouse by FedEx.

But not so fast!  FedEx turned her down for the benefit, arguing that eligibility depended on the terms of the written plan, which was limited to surviving different-sex spouses.  In Schuett’s federal lawsuit against FedEx for the benefit, Judge Hamilton agreed with FedEx that Schuett could not sue for the benefit directly, since only beneficiaries under a plan can sue for benefits and under the terms of the written plan she was not a beneficiary.  Furthermore, Judge Hamilton agreed with FedEx that the administrators of the plan had not violated their fiduciary duty, which required them to follow a reasonable interpretation of the written plan’s terms.  The judge granted FedEx’s motion to dismiss Schuett’s claims under these two legal theories.

However, plan administrators are required to administer plans “in accordance with applicable law,” wrote Judge Hamilton.  ERISA provides that a plan must provide an annuity benefit to the spouse of an employee who has a fully vested pension benefit but dies before they have retired and begun to receive retirement benefits.  Schuett argued that since California recognized her as being married on June 19, 2013, the day before Taboada-Hall died, she should be considered a surviving spouse for purposes of this ERISA provision.  She pointed out that in the Windsor case, the Supreme Court not only declared DOMA unconstitutional but also ordered that the federal government refund with interest the money Edie Windsor had paid to cover estate taxes of her wife, Thea Speyer, which would not have been due if the federal government recognized their Canadian marriage.  Thus, the ruling in Windsor was itself retroactive.

Judge Hamilton accepted Schuett’s argument, finding that “ERISA requires a fiduciary to follow plan documents insofar as such documents are consistent with Title I of ERISA.  ERISA requires defined benefit plans such as the Plan at issue to provide a qualified preretirement survivor annuity to all married participants who are vested and die before the annuity starting date, unless the participant has waived the benefit and the spouse consented to the waiver.”  Furthermore, the Department of Labor had issued a “guidance” document making clear that “ERISA’s mandatory benefits provisions apply to all spouses, including same-sex spouses.”

Among the cases Judge Hamilton relied upon were Cozen O’Connor P.C. v. Tobits, 2013 U.S. Dist. LEXIS 105507, 2013 WL 3878688 (E.D. Pa. 2013), specifically on an ERISA survivor benefits claim involving a same-sex couple, and Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993), on retroactivity when the Supreme Court announces a new rule of federal law and applies it retroactively to the parties in the case.

Hamilton found that the Windsor decision “appears to invalidate Section 3 of DOMA retroactive to 1996, the date of enactment.  Notably, the decision in Windsor applied retroactively.”

“In the present case,” she wrote, “although California denied recognition of the term ‘spouse’ to same-sex couples at the time of Ms. Taboada-Hall’s death on June 20, 2013, the Sonoma County Superior Court determined that plaintiff and Ms. Taboada-Hall were married on June 19, 2013, and issued a delayed marriage certificate. . .  [T]his court defers to the California court’s certification of the marriage. . .  The court finds that plaintiff has adequately alleged that FedEx has violated Title I of ERISA by acting contrary to applicable federal law and failing to provide plaintiff with a benefit mandated by ERISA, and that she is entitled to pursue equitable relief to remedy that violation.”  She concluded on this point that she was not persuaded “under the facts alleged in the complaint that there is any basis for denying retroactive application of Windsor.” Thus, Judge Hamilton denied FedEx’s motion to dismiss Schuett’s claim under the ERISA violation theory.

Stacey Schuett is represented by Nina Rachel Wasow, an attorney with Feinberg, Jackson, Worthman & Wasow (Oakland); Amy Whelan, Christopher Francis Stoll, and Shannon Minter of the National Center for Lesbian Rights (San Francisco); Julie Wilensky of Civil Rights Education & Enforcement Center (Berkeley); and Tate A. Birnie (Sebastopol).  FedEx used in-house counsel to litigate its motion to dismiss, but would probably retain outside counsel if it seeks to appeal this ruling to the 9th Circuit.  Since the FedEx plan administrators are under a fiduciary duty not to pay out any benefits that are not required by the plan or the law, they might conclude that they have to appeal this ruling, although the pragmatic approach could be to avoid the costs of litigation and grant Schuett’s claim for the annuity.  Of course, it is also open to Schuett to appeal the court’s order dismissing her claim on the other legal theories.

Lesbian Co-Parent Seeks Expedited Supreme Court Review of Alabama Refusal to Recognize Adoption

Posted on: November 22nd, 2015 by Art Leonard No Comments

Attorneys for V.L., the adoptive mother of children born to her former same-sex partner, have asked the U.S. Supreme Court (SCOTUS) to review an erroneous decision by the Alabama Supreme Court to refuse to recognize the adoption that was approved by the Georgia Superior Court, and have also asked SCOTUS to restore her visitation rights while the appeal is pending by suspending the Alabama Supreme Court’s order in the case.  The petitions were filed on November 16.

V.L., who is represented by the National Center for Lesbian Rights and cooperating attorneys from Jenner & Block LLP (Washington, D.C.), with local counsel Traci Owen Vella and Heather Fann in Birmingham, Alabama, lived with E.L. in a seventeen-year relationship.  In May 2000 V.L. changed her last name to E.L.’s last name, and the women decided to have and raise children together.  E.L. subsequently gave birth to one child in 2002 and twins in 2004 through donor insemination.  The women played equal parental roles in raising the kids.  In order to provide more security to their legal relationship, they rented a residence in Atlanta and obtained a legal adoption from the Georgia (Fulton County) Superior Court so that V.L. would be the legal parent of the children.  The Georgia judge construed that state’s adoption law to allow second-parent adoptions without terminating the birth mother’s parental rights, as several other Georgia trial courts have also done.  So far, there is no Georgia appellate ruling against such adoptions, and the Georgia Supreme Court has not addressed the issue directly.

After the adoption, the women returned to Alabama and resumed living there are a family until the women separated and E.L. eventually cut off V.L.’s contact with the children.  V.L. registered the adoption with an Alabama court and filed an action seeking custody or visitation.  The Alabama trial and appellate courts concluded that V.L. must be recognized as an adoptive parent entitled to seek a determination of custody or visitation, with E.L. appealing every step of the way, until she won a reversal from the Alabama Supreme Court on September 18.

The lower Alabama courts correctly applied the Full Faith and Credit Clause (FFCC) of the U.S. Constitution, which requires that the courts of one state accord “full faith and credit” to the judgments issued by courts in other states.  More than a century of well-established court precedents provide that courts may not refuse to accord full faith and credit to a sister state court’s ruling because of a disagreement over the merits of that ruling.  The limited exception to full faith and credit would be cases where the court that issued the judgment did not have jurisdiction to do so, either because the court was not authorized to decide such cases or because the parties were not properly within the jurisdiction of the court.  In this case, the Georgia Superior Court had specifically concluded that it had jurisdiction over the parties and the subject matter of the case.  Indeed, Georgia statutes provide that the Superior Court has jurisdiction over all adoption proceedings.

A majority of the Alabama Supreme Court, however, departing from established constitutional precedents, decided based on its own reading of Georgia’s adoption statute that the Georgia law could not properly be construed to allow second-parent adoptions.  Even though the Georgia appellate courts have never specifically disapproved such adoptions, and courts of several other states have approved them in the context of similarly-worded adoption statutes, the Alabama court decided that the Georgia Superior Court’s departure from the Alabama Supreme Court’s interpretation of the Georgia adoption statute is a “jurisdictional” fault that justifies refusing to recognize the adoption.

This startling result drew a sharp dissent from a member of the court, who wrote that it “creates a dangerous precedent that calls into question the finality of adoptions in Alabama: Any irregularity in a probate court’s decision in an adoption would now arguably create a defect in that court’s subject matter jurisdiction.”

Petitioning SCOTUS, V.L. argued that the Alabama Supreme Court’s departure from established constitutional precedent, in general contradiction with more than a century of precedent and in direct contradiction of the Denver-based U.S. 10th Circuit Court of Appeals’ 2007 ruling, Finstuen v. Crutcher, 496 F.3d 1139, requires a resolution of whether state courts are permitted to inquire into the merits of rulings by sister state courts in deciding whether to accord full faith and credit to those judgments, particularly in adoption cases where the result would be to interfere with family relationships that had been established and then legally ratified in completed adoption proceedings.   In the Finstuen case, the 10th Circuit invalidated an Oklahoma statute that barred recognition of same-sex couple adoptions, holding that the statute violated the obligation of Oklahoma courts under the full faith and credit clause to recognize such adoption judgments.

Under the rulings of the Alabama trial and intermediate appellate courts V.L. had been enjoying visitation rights with the children on a temporary basis while E.L. pursued her appeal.  Shortly after its ruling, the Alabama Supreme Court suspended that visitation.  In addition to her petition for review, V.L. filed a petition with SCOTUS requesting a stay of the Alabama Supreme Court order and restoring her visitation rights while this appeal is pending.  This is in accord with her argument that she is the legal adoptive parent of those children and thus is entitled to continued contact of some sort unless E.L. can show that she is unfit or poses a danger to the children.  Because of the appeals of the recognition rulings in this case, there has not yet been a determination by the Alabama trial court whether it is in the best interest of these children for their adoptive mother to have custody or visitation.  By its erroneous decision that V.L. is not a parent with standing to contest these issues, the Alabama Supreme Court has decreed that there be no inquiry into the best interest of the children — an inquiry that should be at the heart of custody and visitation decisions when parents split up.

Rogue Alabama Supreme Court Refuses to Recognize Georgia Co-Parent Adoption

Posted on: September 21st, 2015 by Art Leonard No Comments

Under the United States Constitution’s Full Faith and Credit Clause, a state court is supposed to recognize the judgments of courts from other states unless those courts did not have jurisdiction over the parties or the subject matter of the case.  Asked to rule on whether an Alabama court must recognize a Georgia adoption decree involving a same-sex couple, however, the Alabama Supreme Court manufactured a jurisdictional issue in order to reverse a ruling by Alabama’s Court of Civil Appeals and deny recognition to the Georgia adoption.  As a result, the child’s adoptive mother, identified in court papers as V.L., will be denied visitation with the children she had been raising with her former partner.

The court issued its September 18 decision in E.L. v. V.L. “per curiam,” which means that none of the justices is credited with writing the opinion.  Justice Greg Shaw was the sole dissenter, arguing that there was no jurisdictional issue in the case and that the court was required to recognize the adoption.  Justice Tom Parker wrote a brief separate opinion that seemed largely beside the point.

The women were involved in a relationship for six years during which they resided in Alabama.  They decided to have children through donor insemination.  E.L. gave birth to one child in 2002 and twins in 2004.  Following their birth, V.L. acted as a parent to the children along with E.L.  The women decided jointly to have V.L. adopt the children as a co-parent, but that was impossible in Alabama at that time.  They learned through friends in Georgia that the Fulton County Superior Court had granted second-parent adoption petitions, and the only thing that stood in their way was a six month residency requirement.  They rented a place in Georgia to establish residency, proceeded through the formal adoption procedures, and obtained an adoption decree on May 30, 2007, after which they resumed full-time residency in Alabama.  Subsequently they obtained new birth certificates for the children listing V.L. as a parent, presumably by showing the adoption decree to the appropriate Alabama clerk to obtain the new birth certificates.

The women ended their relationship in November 2011.  V.L. moved out of the home they had shared.  E.L.  eventually denied V.L. further access to the children.  V.L. brought the Georgia adoption decree to the Jefferson (Alabama) Circuit Court, asking to have it registered and to get a declaration of her legal parental rights, including “some measure of custody of or visitation with the children.”  Her case was transferred to the Jefferson Family Court.  E.L. moved to dismiss the case, but the family court denied her motion without a hearing, awarding V.L. visitation rights.  E.L. filed various motions seeking to upset this ruling, which were all denied by the family court.

E.L. then appealed to the Alabama Court of Civil Appeals, which rejected most of her arguments but agreed that the family court should have given E.L. a hearing on the “best interest of the children” before denying her motion to dismiss the case.  E.L., observing that the Court of Civil Appeals’ ruling had implicitly rejected her argument that the Georgia adoption was invalid, sought to appeal that part of the ruling.  The Alabama Supreme Court agreed to review it.  In its September 18 ruling, the Supreme Court reversed the lower appeals court, concluding that Alabama was not required to give full faith and credit to the Georgia adoption decree.

In order to refuse to recognize the Georgia adoption, the Alabama court had to find either that the Fulton Family Court lacked jurisdiction over this family or over the subject matter of the adoption proceeding.  E.L. contended that the women had not really established residence in Georgia.  Although they rented a place, she contended, they had not actually moved there, as they had jobs in Alabama and had retained their residence there, just spending a few days in the Georgia house in order to create the appearance of residency and to be there when child welfare officials came to interview the family as part of the adoption proceeding.  She also argued that despite Jefferson Superior Court’s ruling, Georgia’s adoption statute did not allow for second-parent adoptions, so the court did not have the power to approve such an adoption.

The Alabama Supreme Court embraced the objection to subject matter jurisdiction.

E.L. argued that the Georgia adoption statute did not apply to this adoption proceeding because the statute conditions the court’s authority to grant an adoption by a “third party” on a finding that “each living parent or guardian of the child has surrendered or had terminated all his rights to the child in the manner provided by law prior to the filing of the petition for adoption.”  The Georgia Supreme Court has never addressed this issue, but the Alabama Supreme Court premised its ruling on a dissenting opinion by one justice of the Georgia Supreme Court from that court’s decision to deny review in a case involving a second-parent adoption.  The Alabama court insisted that the dissenting Georgia justice’s opinion provided “the proper analysis” of the Georgia adoption statute, and insisted that “a Georgia court would make the same conclusion and, by extension, would permit a challenge on jurisdictional grounds to an adoption decree that did not fully comply” with the adoption statute.

The argument in the Alabama Supreme Court boiled down to the question whether E.L. was challenging the “merits” of the Georgia adoption decision or the “jurisdiction” of the Georgia family court to grant the adoption.   Under the Full Faith and Credit Clause, the Alabama court may not inquire into the “merits” of the adoption decision, but may refuse to recognize it if the Georgia court did not have “jurisdiction” to issue the adoption decree.

Wrote the Alabama justices, “E.L. argues that the Georgia court could properly exercise subject-matter jurisdiction only when the requirements of the Georgia adoption statutes were met, and, in this case, they were not, she argues, because those statutes made no provision for a non-spouse to adopt a child without first terminating the parental rights of the current parents.  E.L.’s argument regarding the Georgia adoption statutes appears to be correct,” the court said, citing the dissenting opinion by the sole Georgia justice who had voted to review a case that his colleagues decided not to review.  Thus, the Alabama court concluded, the court “erred by entering the Georgia judgment by which V.L. became an adoptive parent of the children.”  The court went on to find that this error was jurisdictional, not just a misinterpretation of the statute by the Georgia Superior Court.  Since E.L. had not agreed to terminate her parental rights, wrote the court, “the Georgia court was not empowered to enter the Georgia judgment” and thus “lacked subject-matter jurisdiction” to enter that judgment.  “The Georgia judgment is accordingly void,” wrote the court, “and the full faith and credit clause does not require the courts of Alabama to recognize that judgment.”

Justice Parker’s “special concurrence” stressed that under Alabama law there is no “right to adopt” but rather a “privilege” to do so on terms set by the state.  He invoked a 2004 decision by the U.S. Court of Appeals for the 11th Circuit upholding Florida’s ban on gay adults adopting children (a ban that has since been struck down by the Florida state courts) to support his argument that Alabama has a legitimate interest “in encouraging a stable and nurturing environment for an adopted child by encouraging that the child be raised in the optimal family structure with both a father and a mother.”  What this has to do with the matter before the Alabama Supreme Court in this case is unfathomable, since it is about recognizing a second-parent adoption that took place several years ago.  Refusing to recognize it will not result in these children being raised in a different-sex household.

Justice Shaw’s dissent is clear and to the point.  “The main opinion reviews the merits of the adoption in this case,” he wrote; “our case law, interpreting the United States Constitution, does not permit this Court to do so.”  The provision in the Georgia adoption statute that the Alabama Supreme Court invoked “speaks to the merits of whether the adoption should be granted — not to whether the trial court obtains subject-matter jurisdiction.”  Georgia statutes give the Georgia Superior Court jurisdiction “in all matters of adoption.”  “This would include adoption matters where the petitioners fail to ‘satisfy’ the court that the requisites for an adoption were met,” he wrote, quoting a Georgia Supreme Court ruling on “subject-matter jurisdiction” as meaning authority to decide “the class of cases to which that particular case belongs.”

“The adoption petition in the instant case,” he wrote, “whether meritorious or not, was part of the class of cases within the Georgia court’s jurisdiction to decide.  The fact that the adoption should not have been granted does not remove the case from the class of cases within that court’s power.”  While Shaw would “tend to agree” that on the merits the Georgia Superior Court erred by construing Georgia’s adoption statute to allow this adoption, that was irrelevant to a full faith and credit analysis.  “Our case law prohibits an inquiry into the merits of a foreign judgment,” he insisted.  “Further, I fear that this case creates a dangerous precedent that calls into question the finality of adoptions in Alabama:  Any irregularity in a probate court’s decision in an adoption would not arguably create a defect in that court’s subject-matter jurisdiction.”

Ironically, it appeared that E.L.’s stronger argument, if it could be proved in a trial, would be that the women had never met the residency requirement because they had failed to actually live in the rented premises for six months before filing the adoption petition.  But had the Alabama Supreme Court taken that route, the case would have to be sent back to the Jefferson Family Court to litigate the residency question, and if V.L. made the strong argument, the adoption would be recognized.  By taking the more convoluted jurisdictional route, the Alabama Supreme Court arguably precluded the recognition of any Georgia second-parent adoptions, and also provided a theoretical basis for challenging the validity of adoptions from other states whose statutes did not clearly authorize them.

The National Center for Lesbian Rights represents V.L. together with Alabama lawyers Heather Fann and Traci Vella.  Although they criticized the Alabama Supreme Court’s ruling, it was unclear whether V.L.’s lawyers would try to get the U.S. Supreme Court to review it.  That court has turned down prior requests to review lower court rulings on gay adoption issues, most prominently in a 5th Circuit case where the court of appeals refused to order Louisiana to recognize the New York adoption of a Louisiana-born child by a New York couple for purposes of getting a proper birth certificate for the adopted child.  In that case, the 5th Circuit held that federal district courts do not have authority to order state government officials to recognize out-of-state adoptions, opining that such “recognition” cases had to be brought in the state courts.  V.L. followed the state court route, at first with success, but ultimately encountered the outspokenly anti-gay Alabama Supreme Court, which is also now considering a motion by a county probate judge for a ruling that the state does not have to comply with the U.S. Supreme Court’s marriage equality ruling, Obergefell v. Hodges.

 

 

LGBT Legal Organizations Call for Decriminalization of Sex Work as Federal Government Initiates Prosecution of Rentboy.com’s Owner and Employees

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

On August 20, leading LGBT rights legal organizations in the United States issued a joint statement supporting Amnesty International’s August 11 Resolution that advocates for the human rights of sex workers, including repeal of laws against prostitution. Just days later, on August 25, the U.S. Department of Homeland Security (DHS) raided the New York City offices of Rentboy.com, the world’s largest on-line escorting website, carted away boxes of business records and computers, and arrested the company’s chief executive officer, Jeffrey Hurant, and six employees.

Amnesty International (AI), a non-governmental organization concerned with human rights issues worldwide, called on governments to repeal laws criminalizing sex work, while asking them to move to prevent and combat sex trafficking, to ensure that sex workers are protected from exploitation, and to enforce laws against the sexual exploitation of children. In short, AI suggests that adults should be able to freely consent to engage in sexual activity for compensation without criminal penalty, and that continued maintenance of criminalization exposes all sex workers, whether children or adults, to exploitation, violence, and severe health risks.

Sex work for pay is presently legal in some countries (e.g., Canada, United Kingdom), but outlawed in most. Even those countries that don’t criminalize prostitution as such generally maintain laws against promotion and public solicitation of prostitution. In the United States, every jurisdiction except some counties in Nevada treats all sexual activity for monetary compensation as unlawful, although they differ as to the classification of the offense and potential penalties. The Model Penal Code as adopted in the states decriminalized private consensual sexual activity between adults, but not when such activity involves a commercial transaction, and courts have been unanimous in holding that the Supreme Court’s 2003 decision striking down sodomy laws, Lawrence v. Texas, does not create a protected liberty interest extending to commercial sex or sex between adults and minors.

The LGBT organizations that joined in the statement endorsing AI’s resolution are Transgender Law Center, Gay & Lesbian Advocates & Defenders, Lambda Legal, National Center for Lesbian Rights, and National Center for Transgender Equality.

The Joint Statement explains, “For many LGBT people, participation in street economies is often critical to survival, particularly for LGBT youth and transgender women of color who face all-too-common family rejection and vastly disproportionate rates of violence, homelessness, and discrimination in employment, housing, and education.”

The Joint Statement goes on to describe the various hazards faced by sex workers that are amplified by the criminalization of their activities, with a particular emphasis on the difficulties experienced by transgender sex workers. “Laws criminalizing sexual exchange – whether by the seller or the buyer – impede sex workers’ ability to negotiate condom use and other boundaries, and force many to work in hidden or remote places where they are move vulnerable to violence. Research and experience have shown that these laws serve only to drive the industry further underground, make workers less able to negotiate with customers on their own terms, and put those who engage in criminalized sex work at higher risk for abduction and sex trafficking,” says the Joint Statement. “And as UNAIDS and the World Health Organization have recognized, criminalization also seriously hampers efforts to prevent and treat HIV/AIDS – efforts in which people involved in the sex trades are crucial partners.”

Just days before the Joint Statement was issued, the U.S. Department of Homeland Security (DHS) submitted a Complaint and Affidavit in Support of Arrest Warrants to the U.S. District Court for the Eastern District of New York (Brooklyn) on August 18, seeking to arrest the owner and employees of Rentboy.com, described in the complaint as “a commercial male escort advertising site that promotes prostitution.” The complaint quotes Rentboy.com advertising itself as the “original and largest male escort service online.” The Complaint was submitted under oath by DHS Special Agent Susan Ruiz, who led the investigation leading to the prosecution. The Complaint requested that its supporting affidavit and warrants be kept under seal until they were executed to prevent the defendants from fleeing the jurisdiction.

On August 25, Homeland Security agents accompanied by NYC Police Department officers appeared at Rentboy.com’s offices on West 14th Street in Manhattan to conduct their raid.  They also arrested the employees there and arrested others at their homes, effectively shutting down operation of the website. The defendants were listed in the complaint as Jeffrey Hurant (the owner) and employees Michael Sean Belman, Clint Calero, Edward Lorenz Estanol, Shane Lukas, Diana Milagros Mattos, and Marco Soto Decker. The title of the case on the Complaint is United States of America v. Hurant.

The complaint sets out a detailed description of the Rentboy.com website, defining terms, providing graphic descriptions of the activities advertised, and asserting repeatedly that the disclaimers on the site were meaningless and that the entire operation was set up to connect customers with prostitutes.

Anyone seeking a detailed description of the on-line male escort business will find it in this complaint, which became public upon serving of the arrest warrants and was posted later on August 25th on various news websites. The complaint describes each of the defendants (including aliases used by many of them) and their role in the Rentboy.com business, including past or present escorting activity by some of them.

The complaint asserts that the term “escort” is a euphemism for a prostitute. The complaint describes and quotes from various escort listings on Rentboy.com, including the quotation of rates for services and the listing of specific sexual activity that an escort is willing to engage in. The complaint also notes cross-references in some of the advertisements to another website, daddysreviews.com, at which can be found detailed accounts by customers of their experiences with the escorts in the form of reviews, including reports on the amount of money charged by the escort.

It is unclear whether this action taken against Rentboy.com was a precursor to actions against similar websites operated from the United States as part of a more general crackdown on the use of the Internet for commercial sexual assignations, whether Homeland Security is also targeting heterosexual escort sites, or whether Rentboy.com was singled out for prosecution because of the brazenness of its owner, who is quoted in the complaint as having made clear in published interviews that the purpose of the website was to assist escorts in marketing their sexual services.

According to the complaint, Hurant uses as an email address cyberpimp@rentboy.com, which is hardly subtle. The complaint quotes Hurant telling one interviewer, “There is no place in this website where somebody says I’ll have sex for money because that is against the law. We can talk about what you look like, what you are, what you like to do, what people say about you in bed. . . People say I’m a great top, people say I fuck like nobody’s business, but you can’t say I’ll fuck you for two hundred bucks.” The website includes a disclaimer that rates quoted by the escorts on the site are only for their time, and that any sexual activity that takes place is a private matter between consenting adults.

In justifying the arrest of the employees as well as the owner, the complaint states, “There is probable cause to believe that anyone employed by the organization was aware that its aim was the promotion of prostitution, based on its publicly-disseminated advertising and promotional material and the content of the site itself.” Illustrating the openness with which Rentboy.com went about its business, the complaint describes how the company applied to the Department of Homeland Security for an occupational visa for one of its employees. It also describes an annual public event held by Rentboy.com, the “Hookies,” at which awards were bestowed on escorts listed on the site as the “best” in particular categories of sexual performance, and at which Hurant gave his business card to an undercover agent.

The prosecution is premised on 18 U.S.C. Section 1952, a federal statute that provides, in relevant part: “(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to. . . (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform – (A) an act described in paragraph . . . (3) shall be fined under this title, imprisoned not more than 5 years, or both. . . (b) As used in this section (i) “unlawful activity” means (1) any business enterprise involving . . . prostitution offenses in violation of the laws of the State in which they are committed or of the United States.”

The complaint cites provisions of New York law criminalizing “promoting prostitution” and engaging in prostitution activity, thus satisfying the federal statutory requirement that the proposed defendants are using a “facility in interstate or foreign commerce” with the intent to “promote” an “unlawful activity.” News reports indicated that the prosecution may also involve charges of “money-laundering,” but that is not specified in the complaint submitted to the federal court to get the arrest warrants.  Of course, the complaint submitted to get the warrant does not limit the scope of the ultimate prosecution. In a footnote, it states that because the complaint was submitted “for the limited purpose of establishing probable cause,” Agent Ruiz did not “set forth each and every fact learned during the course of this investigation.” One might expect that the investigation would include rigorous tax auditing of Rentboy.com and its parent corporation, as well as the seven individuals arrested, and that the U.S. Attorney, acting as a prosecutor on behalf of DHS, is likely to assert as broad a range of charges as the results of the DHS investigation may support.

Appellate Court of Illinois Recognizes Unjust Enrichment Cause of Action on Behalf Same-Sex Former Domestic Partner

Posted on: December 31st, 2014 by Art Leonard No Comments

The Appellate Court of Illinois ruled in Blumenthal v. Brewer, 2014 Il App (1st) 132250, 2014 Ill. App. LEXIS 904 (Dec. 19, 2014), that a state court judge who is the former same-sex partner of a physician can maintain a legal claim on the theory of unjust enrichment to seek compensation for her financial contributions towards the home they shared and the physician’s professional practice.  The court found that legislative and common law developments since 1979 had rendered the Illinois Supreme Court’s leading decision against lawsuits between former unmarried partners, Hewitt v. Hewitt, 394 N.E.2d 1204, obsolete.

Jane Blumenthal and Eileen Brewer met and became domestic partners in 1981 or 1982 when they were both graduate students at the University of Chicago.  Their partnership ended in 2008, after they had raised three children together.  By then, Blumenthal was a doctor in a lucrative partnership practice, and Brewer was an elected Illinois Superior Court judge. They had merged their finances during their partnership, and had registered as domestic partners when that option became available in Cook County in 2003.  They had cross-adopted each other’s children. They had purchased real estate together, and Blumenthal had used joint funds to buy into the medical partnership.  After Blumenthal moved out, Brewer assumed the continuing financial responsibilities of the house. The children are now all grown up and emancipated adults.  Blumenthal filed a partition action in 2010, seeking to divide the value of the house the women had purchased together to reclaim her share.  Brewer counterclaimed, seeking sole title to the property to “equalize” the parties’ assets, as she had been a stay-at-home mom for their kids until they were old enough for her to resume her legal career, Blumenthal’s medical partnership had been purchased with joint funds, and Brewer had carried the financial burden of the house since Blumenthal had moved out.  Blumenthal argued that under Hewitt v. Hewitt Brewer could not maintain such a counterclaim, and Cook County Circuit Judge LeRoy K. Martin agreed, dismissing her claim.  Brewer, represented by the National Center for Lesbian Rights (NCLR) and Chicago Attorney Angelika Kuehn, appealed with amicus support from the ACLU of Illinois and Lambda Legal.

When the Illinois Supreme Court decided Hewitt, there were strong legislative policies in effect supporting that court’s view that such a lawsuit could not be brought by an unmarried cohabitant, including a statute criminalizing unmarried cohabitation, the state’s statute abolishing the doctrine of common law marriage in Illinois, and court decisions disfavoring child custody for parents who were cohabiting outside of marriage.  Brewer argued successfully to the appellate court that the legislative and judicial landscape in Illinois had changed so drastically since 1979 that Hewitt no longer represented an accurate view of how Illinois law should treat such a claim today, and the court agreed in an opinion by Justice Margaret Stanton McBride.  The judge prefaced a detailed discussion of the historical evidence by stating: “We find that the public policy to treat unmarried partnerships as illicit no longer exists, that Brewer’s suit is not an attempt to retroactively create a marriage, and that allowing her to proceed with her claims against her former domestic partner does not conflict with this jurisdiction’s abolishment of common law marriage.”

In addition to agreeing that changes in the law had rendered Hewitt obsolete, the court pointed out that the decision “may have had unintended consequences.  The court acknowledged its intention to enforce legislative policies that intentionally penalized unmarried couples and their children as a means of discouraging cohabitation and encouraging marriage,” wrote McBride.  “The ruling, however, may have the contrary effect – refusing to hear claims between unmarried cohabitants creates an incentive for some to not marry.  A cohabitant who by happenstance or design takes possession or title to jointly-acquired assets is able to retain them without consequence when their ‘financially vulnerable’ counterpart is turned away by the courts.”  She found support for this argument in a law review article by Candace Saari Kovacic-Fleischer, “Cohabitation and the Restatement (Third) of Restitution and Unjust Enrichment,” 68 Wash. & Lee L. Rev. 1407, 1424 (2011), from which she quoted at length.

“After having reviewed the legislation that was enacted during the years that Brewer and Blumenthal were together, buying a house, having children, dividing up their domestic responsibilities and pursuing their legal and medical careers, we conclude that although Brewer and Blumenthal were not legally entitled to marry in this jurisdiction, the legislature no longer disfavors their 26-year cohabitation or Brewer’s claims against Blumenthal,” wrote Justice McBride. “Furthermore, Brewer does not allege an agreement with Blumenthal based on illicit consideration of sex, which was the primary historical rationale for rejecting cohabitation agreements.  Instead, Brewer, who never had the option of marrying Blumenthal in Illinois, alleged that the couple intentionally comingled and shared their assets based on a mutual commitment and expectation of a lifelong relationship, that they divided their domestic and work responsibilities to best provide for the three children they had together, and that neither partner intended for their decisions and family roles to leave Brewer at a financial disadvantage later in life.”  The court also noted, of course, that after the couple split up, Illinois passed first a civil union law and then a marriage equality law, further confirming the view that Illinois does not consider same-sex relationships to be “illicit” in the sense that term was used by the Illinois Supreme Court in Hewitt.

The court also noted that its decision was in line with developments in other states, including the leading California case of Marvin v. Marvin, the nation’s most celebrated “palimony” case, the revision of the common law summary in the Restatement (Third) of Restitution and Unjust Enrichment, and the changed view embraced in Corbin’s Contracts treatise, which identified the Marvin decision as having decisively influenced courts in other states to become receptive to palimony claims.  The Illinois Supreme Court had relied on previous editions of these two published sources in Hewitt.

McBride concluded that in light of the court’s determination that Hewitt no longer controlled the outcome, it was unnecessary for it to address Brewer’s argument that a contrary decision would violate the Illinois and federal constitutional guarantees of due process and equal protection of the laws.  The court vacated the circuit court’s dismissal order and remanded the case “with directions to consider the parties’ remaining arguments,” as to which the court expressed no opinion.  As part of her opposition to Brewer’s counterclaim, Blumenthal had contested some of Brewer’s factual assertions, but the trial court had not resolved that dispute when it determined that the counterclaim had to be dismissed as a matter of law.

3rd Circuit Rejects Constitutional Challenge to New Jersey’s Ban on “Conversion Therapy” for Gay Minors

Posted on: September 12th, 2014 by Art Leonard No Comments

A unanimous three-judge panel of the Philadelphia-based U.S. 3rd Circuit Court of Appeals decisively rejected a constitutional challenge to a New Jersey law that prohibits licensed therapists from performing “sexual orientation change efforts” (SOCE) — sometimes called “conversion therapy” — on persons under 18 years of age.  The court rejected arguments that the law violates the freedom of speech and free exercise of religion of the therapist, in a September 11 opinion by Circuit Judge D. Brooks Smith, who was appointed by George W. Bush. The other judges on the panel were Thomas Vanaskie, appointed by Barack Obama, and Dolores Sloviter, a senior judge appointed by Jimmy Carter.  The case is King v. Governor of the State of New Jersey, 2014 U.S. App. LEXIS 17545.

The measure was signed into law last year by Governor Chris Christie.  It provides that a person who is licensed to provide professional counseling “shall not engage in sexual orientation change efforts with a person under 18 years of age,” such efforts including any attempt to “change a person’s sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender.”

The law is not intended to forbid counseling to assist people in determining whether they should undergo gender reassignment, or counseling intended to assist a person in adjusting to their sexual orientation or gender identity or seeking to avoid unlawful conduct or unsafe sexual practices.  The law does not impose any specific penalties, but by expressing public policy against SOCE may provide the basis for professional sanctions, loss of professional license, or perhaps liability towards people harmed by SOCE.  The law does not prohibit licensed counselors from expressing their views about such therapy; they are just prohibited from providing the actual therapy.

This is one of several lawsuits on the issue of SOCE pending in New Jersey.  This case was brought by therapists and organizations supporting their right to perform such therapy, another case was brought by some patients and their parents, and a third, pending in the state court, was brought by some people whose parents signed them up for SOCE and who are seeking damages from the therapists under New Jersey’s consumer protection laws, claiming that the practitioners fraudulently claimed to be able to change their sexual orientation and subjected them to therapy that caused mental and emotional harm.

The New Jersey law was modeled on a California statute that had also been unsuccessfully challenged by some therapists.   Last year, the U.S. Court of Appeals for the 9th Circuit ruled, in a case called Pickup v. Brown, that the California law did not violate the 1st Amendment rights of the therapists.  U.S. District Judge Freda Wolfson, following the reasoning of the 9th Circuit decision, ruled similarly in this New Jersey case.  The appeals court agreed with Judge Wolfson’s conclusion, but adopted a different analysis of the 1st Amendment free speech issues.

Like the 9th Circuit, Judge Wolfson concluded that the statute regulates conduct, not speech, and did not have enough of an “incidental effect” on speech to require any more than a rational basis in order to be upheld.  Judge Wolfson’s ruling was premised on the longstanding authority of the government to regulate the provision of health-care through the licensing of health care professionals.  She also rejected the therapists’ claim that the law violated their right to free exercise of religion, finding that it was a “neutral law” that never referred to religion or religious beliefs and thus the therapists could not claim a religious exemption, even if there was some incidental burden.  As for rationality, Judge Wolfson found that New Jersey had a legitimate interest in protecting minors from harm, and that the legislature considered sufficient evidence about harm.

Judge Smith rejected Wolfson’s conclusion that the law only regulates conduct.  His analysis was premised on an agreement by all parties that “modern-day SOCE therapy, and that practiced by Plaintiffs in this case, is ‘talk therapy’ that is administered wholly through verbal communication.”  In a footnote, he explained that “prior forms of SOCE therapy” had included non-verbal “aversion treatments,” including induced nausea and vomiting or paralysis, electric shocks, or “having the individual snap an elastic band around the wrist when the individual became aroused to same-sex erotic images or thoughts,” but he reported that the plaintiffs considered such techniques “unethical” and had asserted that no ethical licensed professional had used them “in decades.”  This was an interesting contention, inasmuch as a recent opinion in the state consumer protection case details plaintiffs’ allegations about some non-verbal therapies that are still used by at least some SOCE practitioners in New Jersey, including the elastic band technique.

Be that as it may, the restriction of the plaintiffs’ brand of SOCE to ‘talk therapy’ led the court to conclude that the state was not just regulating conduct.  To the court, this appears to be content-based regulation of speech, thus requiring a higher level of judicial review than the deferential rational basis approach.  Smith’s opinion devoted several pages of analysis to determining exactly how such speech regulation should be evaluated, before concluding that it should received the same level of protection that is afforded to commercial speech.

Political speech enjoys the highest level of protection, and cannot be restricted unless the government show a carefully-tailored rule designed to achieve a compelling interest, usually involving national security or the prevention of imminent criminal acts.  Commercial speech, by contrast, can be restricted to advance important governmental interests, such as consumer protection or public health.  For example, the government can forbid false advertising or advertising of dangerous products, such as cigarettes or alcoholic beverages.  Commercial speech is subject to heightened scrutiny, the standard that the court decided should be applied to the “professional speech” at issue in this case.  Judge Smith ultimately concluded that the legislature’s findings, based on testimony and resolutions by reputable professional organizations, provided sufficient justification for the law to survive the heightened scrutiny standard.

“We conclude that New Jersey has satisfied this burden,” wrote Smith.  “The legislative record demonstrates that over the last few decades a number of well-known, reputable professional and scientific organizations have publicly condemned the practice of SOCE, expressing serious concerns about its potential to inflict harm.  Among others, the American Psychological Association, the American Psychiatric Association, and the Pan American Health Organization have warned of the ‘great’ or ‘serious’ health risks accompanying SOCE counseling, including depression, anxiety, self-destructive behavior, and suicidality.  Many such organizations have also concluded that there is no credible evidence that SOCE counseling is effective.”

Smith observed that legislatures are “entitled to rely on the empirical judgments of independent professional organizations that possess specialized knowledge and experience concerning the professional practice under review, particularly when this community has spoken with such urgency and solidarity on the subject.”  He rejected the plaintiffs’ contention that there was not “conclusive empirical evidence regarding the effect of SOCE counseling on minors,” finding that the legislature “is not constitutionally required to wait for conclusive scientific evidence before acting to protect its citizens from serious threats of harm.”

The court rejected the plaintiffs’ argument that the state could adequately deal with any problem by imposing an “informed consent” procedure.  Finding that minors are an “especially vulnerable population” who might feel pressured to consent to SOCE by their families “despite fear of being harmed,” the court concluded that the state could properly have found that such a consent requirement was not adequate to deal with the problem.  The court also rejected the plaintiffs’ rather odd argument that the statute was unduly vague, pointing out that the individual and organizational plaintiffs had use the terms in the statute many times to describe their activities and had no doubt what the statute was prohibiting.

As to the religious freedom argument, the court agreed with Judge Wolfson that this law is neutral on its face regarding religion, and the court rejected the plaintiff’s argument that despite this surface neutrality it was somehow targeted at licensed professionals who held particular religious views.  There was no “covert targeting” of religion in this law, even if many of the SOCE practitioners are religiously motivated in providing the therapy.

The court also upheld Judge Wolfson’s conclusion that the therapists were not entitled to represented the interests of their patients in this case.  Patients could represent their own interests, as they have done in filing another case challenging the law which has thus far been unsuccessful.  The court also approved Judge Wolfson’s decision to allow Garden State Equality, a New Jersey state-wide gay rights organization, to intervene as a defendant in the case.

The appeal by the plaintiffs was argued by Matt Staver, Dean of Liberty University Law School and a prominent anti-gay activist on behalf of Liberty Counsel.  Susan M. Scott of the New Jersey Attorney General’s office defended the statute, together with David S. Flugmann representing Garden State Equality in collaboration with the National Center for Lesbian Rights.  The court received numerous amicus briefs on both sides of the case, including from Alliance Defending Freedom, the anti-gay religious litigation organization, supporting plaintiffs, and Lambda Legal, supporting the constitutionality of the statute.

Given the nature of this litigation, it is likely that the plaintiffs will seek en banc review in the 3rd Circuit and/or petition the Supreme Court to review the case.  The lengthy discussion of the freedom of speech issue by Judge Smith made clear that there is not a consensus among the circuit courts of appeals about how to deal with state regulation of professional speech, and the Supreme Court has not spoken with perfect clarity on the issue.  Now that anti-SOCE statutes have survived judicial review in two circuits and similar bills are pending in many state legislatures (including New York’s), the Supreme Court might be persuaded that a national precedent would be appropriate.

 

 

 

A Second Florida Trial Judge Rules for Marriage Equality

Posted on: July 26th, 2014 by Art Leonard No Comments

Just days after Monroe County Circuit Judge Luis M. Garcia ruled that Florida’s constitutional and statutory bans on same-sex marriage violate the 14th Amendment, a second Florida trial judge, Sarah Zabel of Miami-Dade County, reached the same conclusion in Pareto v. Ruvin and State of Florida, No. 14-1661 CA 24, announced on July 25.  As in the earlier case, Florida Attorney General Pam Bondi immediately responded by filing a notice of appeal, but Judge Zabel had anticipated this move and stayed her own decision “pending the outcome of the expected appeals.”

The Miami-Dade case was filed by attorneys from the law firm of Carlton Fields Jorden Burt, Elizabeth F. Schwartz and Mary B. Meeks and the Nation Center for Lesbian Rights earlier this year on behalf of six same-sex couples who went to the county clerk’s office and were denied marriage licenses.  Joining with the plaintiff couples was co-plaintiff Equality Florida Institute, representing its members who are also seeking the right to marry.  As none of the named plaintiffs had already been married elsewhere, the lawsuit did not specifically target Florida’s ban on recognition of out-of-state same-sex marriages, and Judge Zabel did not address that ban.

The case was originally filed only against Miami-Dade County Clerk of the Courts Harvey Rubin, but the state intervened to defend the statute, and Clerk Ruvin actually took no position as to its constitutionality.  Indeed, some local officials supported the plaintiffs, with the City of Miami Beach joining with the City of Orlando in filing an amicus brief and participating in oral argument.  In addition to the state, several amicus organizations defended the statute, having a particular interest because they had worked to pass Florida’s constitutional ban on same-sex marriage in 2008.

Although accounts of  judges’ decisions in marriage equality cases are coming to take on a repetitious character, each judge brings his or her own style to the task, and Judge Zabel took the occasion to write a thorough decision that falls solidly within the mainstream of the two dozen rulings that have been issued in support of marriage equality since last June’s Supreme Court decision striking down Section 3 of the Defense of Marriage Act, U.S. v. Windsor.  In the course of her opinion, Zabel offered several pointed and quotable comments, although much of her decision consisted of pertinent quotations from those two dozen prior decisions.

Confronting the state’s argument that the court lacked jurisdiction over this dispute because the anti-marriage amendment was “enacted via a citizen-led ballot initiative” and the court “must respect the voters’ policy preferences,” Zabel responded, “The United States Constitution would be meaningless if its principles were not shielded from the will of the majority. . .  Accordingly, the ‘will of the voters’ does not immunize Article 1, Section 27 of Florida’s Constitution from judicial review into whether it comports with the commands of the U.S. Constitution.  To hold otherwise would sanction ‘the tyranny of the majority.'”

Zabel also quickly dispatched the state’s argument that this lawsuit was precluded by the U.S. Supreme Court’s 1972 rejection of a marriage equality appeal from Minnesota, finding that in the intervening forty years the Court’s statement that same-sex marriage did not present a “substantial federal question” was no longer accurate.

Turning first to the challenge under the Due Process Clause, Judge Zabel sided with those courts that have rejected the argument that plaintiffs are seeking a “new right of same-sex marriage.”  “When analyzing the scope of the fundamental right to marry (or any fundamental right),” she wrote, “it would be both circular and insincere to use the group being denied a right to define the right itself.”   She continued, “Although this right has always been theirs, it is only recently that historical blinders have begun to fall so that we have been able to recognize that the right belongs to them as well.  Simply put, fundamental rights belong to everyone.  All individuals have a fundamental right to marry.  The inquiry is not whether there is a right to same-sex marriage, but whether same-sex couples can be excluded from the right to marriage.”

Having decided that a fundamental right is at stake, Judge Zabel determined that only a compelling state interest could justify abridging that right, and none had been advanced by the state of Florida.  This is not very surprising, since the state’s argument was that no fundamental right was at stake and this was an ordinary rational basis case.  Lacking arguments from the state, Zabel looked to the arguments by the amicus organizations, which raised the same tired arguments that have been rejected in every other marriage equality case this year.  She found them no more compelling than any other court had done.

In light of past Florida litigation over gay parenting in the context of adopt, she had a precedential state decision to quote, Florida Department of Children & Families (Adoption of XXG), 45 So. 3d 79 (Fla. 3d DCA 2010), in which the Florida 3rd District Court of Appeal summarized the expert testimony about gay parenting.  That court concluded, after discussing the various reports and studies produced in evidence, “These reports and studies find that there are no differences in the parenting of homosexuals or the adjustment of their children,” and “this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise.”  Given that precedent, the argument of amicus parties in this case that the state should withhold marriage rights from same-sex couples to advance its compelling interest in having children raised in the best setting was a non-starter.

Furthermore, noted Zabel, gay people can have children without getting married and are doing so in large numbers, so “the issue of same-sex marriage is inapposite to the purported goal of preventing same-sex couples from being parents.  Rather, the marriage bans merely prevent same-sex couples from having their already existent families and partnerships recognized in the same manner as opposite-sex couples.”  She pointed out that denying marriage to same-sex couples with children “actually harm the amici’s stated objective of promoting the best interest of children.”  She was similar dismissive of the idea that the procreative capacity of heterosexual couples provided any reason for treating same-sex couples differently, since Florida was perfectly willing to let such couples marry even if they could not or did not desire to procreate.

One issue raised by amici in this case had not been addressed in prior marriage equality litigation.  Amici in this case “insist these laws prevent the spread of HIV and certain cancers that are more prevalent among gay men,” Zabel noted.  “They assert that allowing same-sex marriage will de-stigmatize homosexual conduct, and thereby encourage sexual practices which help spread those diseases.”  Zabel was not convinced.  “However,” she wrote, it is absurd to suggest that a marriage law can combat a medical disease.  The alleged connection between banning same-sex marriage and affecting homosexuals’ intimate conduct is not narrowly tailored to the result it seeks to accomplish, and it is too indirect and theoretical to pass even the rational basis test.”

Indeed, Zabel ultimately concluded, the marriage ban had to fall even under the rational basis test.  She pointed out that denying same-sex couples the right to marry had a harmful impact on them and their children, listing a variety of ways that it imposed disadvantages on them.  “Without access to these and other rights,” she wrote, “homosexuals are made second-class citizens,” and, quoting the ancient dissent of the first Justice John Marshall Harlan in Plessy v. Ferguson (1896), “our Constitution neither knows nor tolerates classes among citizens.”

Turning to the equal protection challenge, Zabel pointed out that because a fundamental right was being categorically denied to gay people, equal protection also required strict scrutiny, but even under a rational basis approach the marriage ban was unconstitutional.  Zabel was constrained in this area by a past Florida Supreme Court decision that had rejected any form of heightened scrutiny for sexual orientation discrimination cases, but this did not prove a problem because she had already found a due process violation and she had already concluded that there was no rational basis to deny same-sex couples the right to marry.

Justice Zabel concluded with a rhetorical flourish about the historic struggles to achieve equality in the U.S. for people of color and women.  “Notably absent from this protracted march towards social justice was any progress for the gay, lesbian, bisexual, and transgender community until quite recently,” she wrote.  “However, as evidenced by the avalanche of court decisions unanimously favoring marriage equality, the dam that was denying justice on this front has been broken.  The Court, nonetheless, recognizes that its decision today is divisive and will cause some Floridians great discomfort.  This decision, though, ‘is not made in defiance of the great people of [Florida] or the [Florida] Legislature, but in compliance with the United States Constitution and Supreme Court precedent.  Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution,” she concluded, adapting language from the Texas marriage equality decision issued earlier this year.  “The journey of our Nation towards becoming ‘a more perfect Union’ does not stop at any particular generation; it is instead a fluid process through every generation.  The Court, therefore, foresees a day when the term ‘same-sex marriage’ is viewed in the same absurd vein as ‘separate but equal’ and is thus forsaken and supplanted by ordinary ‘marriage.'”

This case is one of several pending in state and federal courts in Florida.  The decision will be appealed to the state’s intermediate court of appeals, but given the speed with which things are moving on the marriage equality front, it may become irrelevant if it does not move more quickly than Florida state court appeals tend to move.  The U.S. Court of Appeals for the 10th Circuit has issued two affirmative marriage equality decisions in cases from Utah and Oklahoma, the 4th Circuit is expected to rule soon in a case from Virginia, and the 6th, 7th, and 9th Circuits are hearing arguments in cases from numerous states over the next six weeks.  Thus, the likelihood that this issue will end up in the U.S. Supreme Court this term, resulting in a ruling by June 2015, makes it likely that the Florida marriage challenges will be resolved by default after a U.S. Supreme Court ruling from one of those cases that are further along, rather than by merits rulings from the Florida Supreme Court or the federal 11th Circuit Court of Appeals on a Florida appeal.

That being the case, one wonders why Attorney General Bondi and her staff would but any substantial resources into appealing these rulings.

 

Federal Magistrate Judge Declares Idaho’s Ban on Same-Sex Marriage Unconstitutional

Posted on: May 14th, 2014 by Art Leonard No Comments

They just keep on coming… Hard on the heels of last week’s ruling by a state court judge in Arkansas that the state’s ban on same-sex marriages violates both the state and federal constitutions, a U.S. Magistrate Judge in Boise has ruled in Latta v. Otter that Idaho’s ban violates the 14th Amendment Due Process and Equal Protection Clauses. Chief U.S. Magistrate Judge Candy Wagahoff Dale released her decision late on May 13, issuing an injunction against enforcement of the ban to become effective at 9 a.m. on May 16, unless it is stayed by judicial action. Anticipating this result, Governor C. L. (Butch) Otter had already filed a Contingent Motion to Stay Pending Appeal on Monday, with the expectation that Judge Dale will grant a stay pending Otter’s appeal to the 9th Circuit. News reports out of Idaho suggested that Idaho Attorney General Lawrence Wasden, as representative of the state government, would be filing his own motion. [Update: On Wednesday, May 14, Judge Dale denied the motion for a stay. The Governor and Attorney General sought an emergency stay from the 9th Circuit. A three-judge panel of the 9th Circuit granted a “temporary” stay while it considered the parties’ arguments concerning a stay pending appeal. As a result, the Magistrate’s order did not go into effect at 9 am on May 16.]

The parties had agreed to expedite the case by referring it for decision to Magistrate Judge Dale. Normally Magistrate judges deal with pretrial discovery matters and settlement conferences and issue recommendations to federal district judges, but in this case Judge Dale was authorized to issue a final decision on the merits.

Judge Dale’s decision closely resembles the long string of federal trial court decisions dating back to December in Utah, but it had one important distinguishing factor. This was the first decision by a federal trial court within the jurisdiction of the 9th Circuit Court of Appeals to rule on a marriage equality claim in light of the circuit court’s January 21 decision in SmithKline Beecham v. Abbot Laboratories. In that case, a three-judge panel decided that the Supreme Court’s U.S. v. Windsor decision, striking down Section 3 of the Defense of Marriage Act, had effectively invalidated prior 9th Circuit rulings on the question whether sexual orientation discrimination claims are subject to “heightened scrutiny.” When heightened scrutiny applies, the challenged law is presumed to be unconstitutional and the government bears the burden of proving that the law significantly advances an important government policy. Most legal commentators agree that a ban on same-sex marriage cannot survive heightened scrutiny review. The SmithKline panel found that, in light of how the Supreme Court dealt with the challenge to DOMA in Windsor, such claims should be subject to “heightened scrutiny.”

The defendants in the Idaho case — Governor Otter, Ada County Recorder Christopher Rich, who had denied marriage licenses to some of the plaintiffs, and the State itself as represented by Attorney General Wasden — argued that SmithKline was distinguishable from this case and should not apply. They argued that the SmithKline ruling limits application of heightened scrutiny to “instances of proven animus or irrational stereotyping,” but Judge Dale rejected this contention. “SmithKline addresses purposeful discrimination and the perpetuation of impermissible stereotypes,” she wrote, “but it does so in the context of Batson analysis [the Supreme Court’s precedent on discrimination against potential jurors] — not in the discussion about Windsor. With respect to Windsor, the court’s holding is undeniably broad: ‘Windsor’s heightened scrutiny applies to classifications based on sexual orientation.’ Had the Ninth Circuit intended to limit its holding to cases involving animus or irrational stereotyping, it easily could have done so. Instead it found Windsor to be ‘dispositive of the question of the appropriate level of scrutiny in this case,’ a case that fits into the broader category of ‘classifications based on sexual orientation.’ Just as the Ninth Circuit was ‘bound by Windsor’s controlling, higher authority’ when deciding SmithKline, this Court is bound to apply Windsor’s heightened scrutiny to Idaho’s Marriage Laws.”

Ironically, Judge Dale didn’t even have to engage with this argument to reach her result, as she had already concluded earlier in her opinion that the Idaho marriage law would be subjected either to strict scrutiny — the stiffest level of judicial review — or heightened scrutiny, because the law abridges a fundamental right: the right to marry. She firmly rejected the defendants’ argument that she was still bound to dismiss the case based on the U.S. Supreme Court’s 1972 rejection of a same-sex marriage challenge from Minnesota. Baker v. Nelson, on the ground that same-sex marriage did not present a “substantial federal question,” pointing out that all the federal courts ruling in marriage equality cases since the Windsor decision have rejected that argument as no longer tenable. Then she demolished the defendants’ argument that the plaintiffs are seeking “recognition of a new fundamental right, the right to same-sex marriage.” “This ‘new right’ argument attempts to narrowly parse a right that the Supreme Court has framed in remarkably broad terms,” wrote Judge Dale. “Loving was no more about the ‘right to interracial marriage’ than Turner was about the ‘prisoner’s right to marry’ or Zablocki was about the ‘dead-beat dad’s right to marry,'” she continued, invoking the Supreme Court’s leading marriage cases. “Even in cases with such vastly different facts, the Supreme Court has consistently upheld the right to marry, as opposed to a sub-right tied to the facts of the case.”

As such, of course, the Supreme Court has frequently referred to the “right to marry” as a right of fundamental importance, and spoke of it in similar terms in the Windsor decision last June. Furthermore, Judge Dale noted, “and most critically, the Supreme Court’s marriage cases demonstrate that the right to marry is an individual right, belonging to all. If every individual enjoys a constitutional right to marry, what is the substance of that right for gay and lesbian individuals who cannot marry their partners of choice? Traditional man-woman marriage is no answer, as this would suggest that gays and lesbians can switch off their sexual orientation and choose to be content with the universe of opposite-sex partners approved by the State. Defendants offer no other answer.”

Having settled on heightened scrutiny, Dale carefully reviewed each of the “justifications” proposed by the defendants for maintaining the ban, and found them all wanting. The notion that the ban advanced the state’s interest in the welfare of children struck her as “so attenuated that it is not rational, let alone exceedingly persuasive.” Rejecting the defendants’ attempt to rely on outlier “scientific” publications arguing that children need to have parents of both sexes in order to thrive, she wrote, “The best that can be said for Defendants’ position is that some social scientists quibble with the prevailing consensus that the children of same-sex parents, on average, fare no better or worse than the children of opposite-sex parents. But the Court need not — even if it could at the summary judgment stage — resolve this sociological debate. The parties’ debate over the scientific literature distracts from the essential inquiry into the logical link between child welfare and Idaho’s wholesale prohibition of same-sex marriage.” Indeed, she pointed out, denying same-sex couples the right to marry disregards “the welfare of children with same-sex parents,” she observed. “Although the State and Recorder Rich dismiss same-sex households as ‘statistically insignificant,’ no Defendant suggests that the State’s child welfare interest does not extend to the children in these households.”

Judge Dale was similarly dismissive of the ridiculous “channeling procreation” argument or “federalism” arguments, and was particularly critical of the argument that the ban was necessary to “accommodate religious freedom,” characterizing this argument as “myopic.” “No doubt many faiths around the world and in Idaho have longstanding traditions of man-woman marriage rooted in scripture,” she acknowledged, “But not all religions share the view that opposite-sex marriage is a theological imperative. In fact, some of the Plaintiffs actively worship in faiths that recognize and support their unions. To the extent that Governor Otter argues that Idaho has a legitimate interest in validating a particular religious view of marriage, that argument blithely disregards the religious liberty of congregations active in Idaho.” She went on to quote the Utah marriage decision on this point: “By recognizing the right to marry a partner of the same sex, the State allows these groups the freedom to practice their religious beliefs without mandating that other groups must adopt similar practices.”

Of course, no marriage equality decision would be complete without a quote from one of Supreme Court Justice Antonin Scalia’s dissenting opinions, in which he argued that the Supreme Court’s gay rights rulings were opening up the possibility of constitutional claims to the right to marry. Judge Dale quoted Scalia in the context of refuting the defendants’ argument that there is no evidence of animus against gay people in the Idaho ban. “Suggesting that the laws’ discriminatory effects are merely incidental, Defendants characterize them as efforts to preserve Idaho’s traditional civil marriage institution. ‘But “preserving the traditional institution” is just a kinder way of describing the State’s moral disapproval of same-sex couples,'” she quoted Justice Scalia’s dissent in Lawrence v. Texas, the 2003 case invalidating sodomy laws.

Concluding, Judge Dale wrote that the plaintiffs “are entitled to extraordinary remedies because of their extraordinary injuries. Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiff suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.”

Grounding her decision firmly in the 14th Amendment, Judge Dale wrote, “While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today’s decision,” and concluded: “Slow as the march toward equality may seem, it is never in vain.”

Governor Otter’s “contingent” motion pointed to the Supreme Court’s January 6 stay of the Utah marriage decision, arguing that the “Supreme Court made clear that it will decide the constitutionality of man-woman marriage and until that time no lower court decision holding against man-woman marriage should operate to allow same-sex couples to marry or have their marriages recognized contrary to the law of their particular states.” If a stay is not granted, he argued, “there is likely to be a repetition in Idaho of the chaos, confusion, conflict, uncertainty, and spawn of further litigation and administrative actions seen in Utah and, to a lesser extent, in Michigan.” Presumably, Judge Dale will issue a ruling on this motion before her order can go into effect on Friday morning, but if she hasn’t issued a stay by Thursday afternoon, the Governor and Attorney General will undoubtedly petition the 9th Circuit for quick action.

Already pending at the 9th Circuit is an appeal by gay rights advocates of a pre-Windsor adverse ruling in the Nevada marriage equality case. That had been scheduled for argument in April, but the argument was postponed after a member of the circuit court asked to poll the entire Circuit on whether to reconsider the “heightened scrutiny” ruling in SmithKline Beecham v. Abbott Laboratories, which would obviously affect that case and subsequent marriage equality appeals. The time for briefing and polling having passed with no announcement by the court, it seems likely according to some observers that a majority of the court did not agree to reconsider that case, and the release of an order to that effect is likely awaiting the completion of a dissenting opinion by the judge who requested the poll and those who agreed with that judge. It is likely that the Nevada appeal will finally be heard over the summer, and perhaps in light of the timing will be heard by the same panel that will hear Governor Otto’s appeal of the Idaho ruling, following the pattern embraced by the 10th Circuit when it assigned the Utah and Oklahoma cases to the same three-judge panel.

Meanwhile, marriage equality suits are pending in trial courts within the 9th Circuit in Arizona, Oregon, and Alaska. In Oregon, a summary judgment argument has been held, while the court considers a motion to intervene by the National Organization for Marriage, which despite its name is an organization specifically formed to oppose marriage equality. If the court grants that motion, it would have to hold another summary judgment hearing before a decision could be rendered on the merits. NOM claims to represent several Oregon residents who could assert standing to intervene, including at least one county clerk who is not ready to have their name made public. Since the named defendants in the Oregon case agree with the plaintiffs, in the absence of an intervenor with legal standing a decision by Judge Michael McShane in favor of the plaintiffs could not be appealed to the 9th Circuit. Anticipating that possibility, Judge McShane raised the question at oral argument whether he should stay his own decision until the 9th Circuit has ruled on a marriage equality case from another state. [Update: On Wednesday, May 14, Judge McShane denied NOM’s intervention motion. That means he will move directly to deciding the motion for summary judgment.]

Four same-sex couples are plaintiffs in the case: Susan Latta and Traci Ehlers, Lori Watsen and Sharene Watsen, Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson. Some of them seek to marry, while others, already married out-of-state, seek recognition of their marriages. They are represented by Boise attorneys Deborah A. Ferguson and Craig Durham and the National Center for Lesbian Rights, which had represented plaintiffs in the California marriage litigation that concluded with a historic marriage equality ruling by the California Supreme Court in 2008.

Tennessee Federal Judge Orders State to Recognize Three Same-Sex Marriages

Posted on: March 15th, 2014 by Art Leonard No Comments

U.S. District Judge Aleta A. Trauger signed an order in Tanco v. Haslam, 2014 U.S. Dist. LEXIS 33463, on March 14 directing the state of Tennessee to recognize the same-sex marriages of three couples while their lawsuit is being considered by the court. Granting a motion for preliminary relief filed by the couples’ attorneys, Abby Rubenfeld of Nashville and the National Center for Lesbian Rights, Judge Trauger concluded that it was likely that the plaintiffs will ultimately win their case, and that all factors courts analyze in determining whether to grant relief before a final decision on the merits weighed in their favor. Lead defendant Governor Bill Haslam expressed disappointment with the ruling. On Tuesday, March 18, and announced that a motion had been filed with Judge Trauger seeking a stay of her order pending appeal to the 6th Circuit, and asserting, incredibly, that delaying recognition of these marriages would cause no harm to the plaintiffs, according to an Associate Press report. This makes it sound like the Governor didn’t read Judge Trauger’s opinion (which seems likely), since she specifically found that delaying recognition would harm the plaintiffs, thus balancing the equities in their favor.

With her order, Judge Trauger became the eighth consecutive federal district judge to issue a ruling in favor of plaintiffs in a marriage equality case. Some, as in this case, narrowly focused on whether a state is obligated to recognize a same-sex marriage that was celebrated in another state. Others dealt more broadly with the question whether the state is obligated to allow same-sex couples to marry. In either case, the legal analysis is substantially the same, and Judge Trauger found both kinds of rulings to be persuasive.

This case was filed on October 21, originally on behalf of four same-sex couples, but the parties stipulated to drop one of the couples from the case, for reasons not explained in Judge Trauger’s opinion. The defendants, all sued in their official capacity, are Governor Bill Haslam, Commissioner Larry Martin of the Department of Finance and Administration, and Attorney General Robert Cooper.

The lead couple, Doctors Valeria Tanco and Sophy Jesty, met at Cornell University in Ithaca, New York, while studying veterinary medicine, and were married in New York before they moved to Tennessee, where the University of Tennessee’s College of Veterinary Medicine offered positions to both of them. Dr. Tanco became pregnant last summer, presenting the court with an important deadline to decide the motion for preliminary injunction, since recognition of the Tanco-Jesty marriage is important in terms of parental rights and recording parentage on the birth certificate, and she is due to give birth next week. Sergeant Ijpe DeKoe, an Army Reserve officer, is stationed in Memphis, where he lives with his husband, Thomas Kostura. They married in New York prior to Sgt. DeKoe’s deployment to Afghanistan in 2011, while DeKoe was stationed at Fort Dix in New Jersey. Johno Espejo and Matthew Mansell, adoptive fathers of two children, met and married in California. Mansell works for a law firm that moved the department in which he was employed to their Nashville office, and the Espejo-Mansell family relocated to Tennessee so Mansell could continue working for the firm. Espejo, who has been the stay-at-home father for their two sons, found part-time employment in Nashville. These couples are typical of the mobility of 21st century America, having moved to Tennessee because their employment prospects took them there. They share in common the concern that Tennessee’s non-recognition of their marriages will harm or inconvenience them in various ways, in addition to signaling disrespect for their relationships.

Judge Trauger explained that courts analyze four factors in deciding whether to grant preliminary relief: whether plaintiffs are likely to succeed on the merits, whether they are likely to suffer irreparable harm in the absence of preliminary relief, whether the balance of the equities tip in the plaintiffs’ favor, and whether issuing an injunction would be in the public interest. The most significant threshold question, of course, is whether plaintiffs are likely to win their case on the merits.

On this point, Judge Trauger was convinced by the unbroken streak of marriage equality rulings that federal judges have issued since last June’s Supreme Court decision in U.S. v. Windsor, striking down Section 3 of the Defense of Marriage Act, a statute that had forbidden the federal government from recognizing same-sex marriages. “These courts have uniformly rejected a narrow reading of Windsor, such as that advanced by the defendants here,” she wrote, “and have found that Windsor protects the rights of same-sex couples in various contexts, notwithstanding earlier Supreme Court and circuit court precedent that arguably suggested otherwise. These cases include decisions both inside and outside of this circuit, finding that similar state anti-recognition laws are or likely are unconstitutional, decisions granting a preliminary injunction under similar circumstances, and decisions finding that same-sex marriage bans are unconstitutional in the first place. In these thorough and well-reasoned cases, courts have found that same-sex marriage bans and/or non-recognition laws are unconstitutional because they violate the Equal Protection Clause and/or the Due Process Clause, even under ‘rational basis’ review, which is the least demanding form of constitutional review.”

The judge characterized the recent developments as a “rising tide of persuasive post-Windsor federal caselaw,” and said that “it is no leap to conclude that the plaintiffs here are likely to succeed in their challenge to Tennessee’s Anti-Recognition Laws.” She pointed out that all the arguments defendants raised in opposition had been “consistently rejected” by other courts, and she found particularly persuasive the ruling by Judge John G. Heyburn against the Kentucky non-recognition law. “The anti-recognition laws at issue here and in other cases are substantially similar and are subject to the same constitutional framework,” she wrote, explaining why she was not persuaded that Tennessee’s laws “will suffer a different fate” from the laws previously struck down in Kentucky, Ohio and Texas.

Federal courts recognize the deprivation of constitutional rights as an “irreparable harm,” so that factor was quickly disposed of. Since the state has no legitimate interest in enforcing an unconstitutional law, the equities clearly favor the plaintiffs, and, similarly, it is in the public interest to grant the injunction. Tennessee’s lawyers argued that granting the injunction would “override by judicial fiat the results of Tennessee’s valid democratic process,” pointing out that the anti-same-sex marriage constitutional amendment had won 80% of the vote when it was enacted in 2006, but that didn’t faze Judge Trauger. “Although the defendants are correct that issuing an injunction will temporarily stay the enforcement of democratically enacted laws,” she wrote, “that is essentially the case with any federal decision that overturns or stays enforcement of a state law that violates the federal Constitution,” and she pointed out that the 6th Circuit Court of Appeals, with appellate jurisdiction over this case, had stated in a past ruling that “it is always in the public interest to prevent a violation of a party’s constitutional rights.”

The judge took pains to emphasize the narrowness of her ruling, which merely temporarily enjoins enforcement of the anti-recognition law for the three couples who are plaintiffs in this case. “The court is not directly holding that Tennessee’s Anti-Recognition Law are necessarily unconstitutional or that Tennessee’s ban on the consummation of same-sex marriages within Tennessee is unconstitutional,” she wrote. When evaluating the four factors, she pointed out that granting preliminary relief in favor of three couples was no great imposition on the state, distinguishing this case from some others in which plaintiffs are suing on behalf of all those similarly situated and seeking state-wide relief. Of course, there is nothing to stop the plaintiffs in this case from filing a further motion to certify a plaintiff class of all those similarly situated, but that would be an issue for another day.

Judge Trauger was appointed to the federal bench by President Bill Clinton. Abby Rubenfeld, lead attorney for the plaintiffs, was the first legal director for Lambda Legal during the 1980s, and is Tennessee’s leading LGBT rights attorney. Other Tennessee lawyers representing the plaintiffs include the law firm of Sherrard & Roe, Maureen Holland, and Regina Lambert.

The judge’s penultimate paragraph intimated that she did not expect to make a ruling on the merits in this case before the 6th Circuit Court of Appeals, and perhaps even the Supreme Court, has ruled in one of the other pending cases. On March 31, Kentucky Governor Steve Beshear signed a contract with the Kentucky law firm of VanAntwerp, Monge, Jones, Edwards & McCann to represent him in appealing the Kentucky marriage recognition ruling to the 6th Circuit, after the state’s attorney general had declined to defend the non-recognition law on appeal. The state of Ohio is already appealing a marriage recognition ruling to the 6th Circuit. Appeals are even further along in the 4th and 10th Circuits, which have scheduled arguments in the Virginia, Utah and Oklahoma cases for this spring. The 9th Circuit had scheduled oral argument in the Nevada recognition case for April 9, but then announced that the hearing would be delayed to give the panel more time to review the numerous briefs that have been filed in the case. With all these appeals pending and arguments beginning soon, it is highly likely that the Supreme Court will be entertaining petitions to take up the issue of same-sex marriage during its 2014-15 Term.

9th Circuit Rejects Constitutional Challenge to California Ban on Conversion Therapy for Minors

Posted on: August 29th, 2013 by Art Leonard No Comments
California Senate Bill 1172, which bans state-licensed mental health providers from conducting “sexual orientation change efforts” (SOCE), commonly known as “conversion therapy,” on patients who are under age 18, was scheduled to go into effect on January 1, 2013, but two lawsuits challenging its constitutionality, mainly on First Amendment free speech grounds, were filed by practitioners and others, leading to conflicting rulings on motions for preliminary relief.   On August 29, a 9th Circuit panel, ruling in a consolidated consideration of appeals from the two district court rulings, held that S.B. 1172 survived the constitutional challenges presented to the court, and remanded the two cases to the respective district court judges for further consistent proceedings.  Most significantly, the court ruled that the practice of SOCE, even though it mainly involves talking by the therapist and patient, is not “speech” protected by the First Amendment, but rather a medical practice that incidentally involves speech.  Pickup v. Brown, 2013 U.S. App. LEXIS 18068, 2013 WL 4564249. 

Writing for the court, Circuit Judge Susan P. Graber began by providing a brief history of SOCE and summarizing the views of professional associations in mental health and related fields.  SOCE efforts date from a time when it was widely believed that homosexuality was a form of mental illness requiring a cure, and both “aversive” and “non-aversive” methods were tried to attempt to change an individual’s sexual orientation.  Among the most controversial aversive methods were lobotomies, shock treatment, and induced nausea.  These have been disavowed by most contemporary practitioners of SOCE, including the plaintiffs in these cases, who assert that their treatments rely almost entirely on speech.  As such, they claim a First Amendment right to be free of state regulation of the treatments.   Since the American Psychiatric Association voted in 1973 to remove homosexuality from its published list of mental disorders (the Diagnostic and Statistical Manual), other major professional health organizations have followed suit, and having declared that homosexuality is not a mental illness, the mainstream mental health professions have rejected SOCE as unnecessary and ineffective.  Furthermore, based mainly on anecdotal evidence, which was considered by California legislators when they enacted S.B. 1172, the professional associations now condemn SOCE as potentially harmful to patients.

The legislation does not impose criminal penalties on therapists for providing SOCE to minors, but as a matter of regulation mandates that such treatment not be provided by licensed therapists and makes it a basis for loss of a license for unprofessional conduct.  Judge Graber points out that the law leaves licensed therapists free to talk about SOCE, to recommend it to their minor clients (who would have to go out of state to receive such “treatment” from a licensed professional), to advocate it publicly, and event to refer a minor to a non-licensed individual such as a religious authority.  However, if they want to provide such treatment themselves, they must either “wait until the minor turns 18 or be subject to professional discipline.”  Thus, in the court’s view, the law “regulates the provision of medical treatment, but leaves mental health providers free to discuss or recommend treatment and to express their views on any topic.”

Regulations of conduct are treated differently from regulations of speech.  The plaintiffs argued that because the treatment consisted mainly of speech, the strict rules worked out by the courts to protect speech under the First Amendment should apply, putting a high burden on the legislature to justify this restriction.  The court disagreed, finding that past cases had drawn a distinction between mental health treatment and speech.  “We distill the following relevant principles” from prior cases, wrote Graber: “(1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administer treatment itself; (2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation.”

“Because SB 1172 regulates only treatment,” wrote Graber, “while leaving mental health providers free to discuss and recommend, or recommend against, SOCE, we conclude that any effect it may have on free speech interests is merely incidental.  Therefore, we hold that SB 1172 is subject to only rational basis review and must be upheld if it ‘bears a rational relationship to a legitimate state interest.’”  As to that, “protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth, and in protecting minors against exposure to serious harms caused by sexual orientation change efforts” was the interest stated by the legislature, and the court found that “protecting the well-being of minors is a legitimate state interest.”  Did legislators have a rational basis for concluding that this law could advance such an interest?  Surely yes, in light of the evidence considered by the legislature about the ineffectiveness of SOCE and its harmful effects.

The legislature relied heavily on a report compiled by an American Psychological Association Task Force, as well as formal resolutions adopted by “many other professional associations.”   With few exceptions, the mainstream of professional organizations in the medical and mental health fields has arrived at “the overwhelming consensus” that “SOCE was harmful and ineffective.”  Wrote Graber, “On this record, we have no trouble concluding that the legislature acted rationally by relying on that consensus.”

The court also disposed of various other arguments plaintiffs had raised.  It found that the relationship of doctor and patient did not amount to an “expressive association” meriting constitutional protection, that the measure was not unduly vague or overly broad, and that it did not abridge the fundamental rights of parents regarding the upbringing of their children.  “Although the plaintiffs argue that they cannot ascertain where the line is between what is prohibited and what is permitted – for example, they wonder whether the mere dissemination of information about SOCE would subject them to discipline – the text of SB 1172 is clear to a reasonable person.”

“Moreover,” Graber pointed out, “considering that SB 1172 regulates licensed mental health providers, who constitute ‘a select group of persons having specialized knowledge,’ the standard for clarity is lower.” 

As to the overbreadth argument, Graber reiterated that the effect of the law on speech was incidental to its regulation of medical practice, and “any incidental effect,” she wrote, “is small in comparison with the ‘plainly legitimate sweep’ of the ban.”

Finally, as to parental rights, she pointed out that the state has been upheld in a variety of contexts in imposing or prohibiting particular medical treatments.  For example, compulsory vaccination schemes have been upheld over the protest of parents, and the courts have stepped in to mandate medical treatments that were rejected by parents on religious grounds.  “We are unaware of any case that specifically addresses whether a parent’s fundamental rights encompass the right to choose for a child a particular type of provider for a particular treatment that the state has deemed harmful,” Judge Graber wrote, “but courts that have considered whether patients have the right to choose specific treatments for themselves have concluded that they do not.”  Clearly, parents’ rights concerning treatment for their children would not be greater than their rights concerning their own treatment.

Although it seems likely that the plaintiffs will seek further review, it is unlikely that the 9th Circuit would agree to delay further the implementation of the law pending such an appeal.

In addition to attorneys from the Attorney General’s Office, the law was defended by intervenors represented by the National Center for Lesbian Rights, whose legal director, Shannon Minter, participated in the oral argument before the 9th Circuit.  The case attracted amicus briefs from a wide range of professional groups, and all the major LGBT rights organizations participated in some form in the case.  The court’s decision may prove influential outside the 9th Circuit, as a legal challenge gets underway in New Jersey to a similar statute recently signed into law by Governor Chris Christie.