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Posts Tagged ‘Obergefell v. Hodges’

Supreme Court May Address Parental Presumption for Children of Married Lesbians This Term

Posted on: November 26th, 2020 by Art Leonard No Comments

Now that there is a 6-3 conservative majority on the Supreme Court, it is possible that the Court will begin a process of cutting back on marriage equality.  This is at least one interpretation of the Court’s request for additional briefing on a cert petition filed by the state of Indiana in Box v. Henderson, No. 19-1385, seeking review of the 7th Circuit’s January 17, 2020, decision in Henderson v. Box, 947 F.3d 482, in which the court of appeals applied the Supreme Court’s rulings in Obergefell v. Hodges, 576 U.S. 644 (2015) and Pavan v. Smith, 137 S. Ct. 2075 (2017), to rule that a state must apply the parental presumption regarding newborn children regardless of the sex of the birth mother’s spouse, if it always applies the presumption when the birth mother’s spouse is male.

When the petition was filed with the Court in June, the Respondents (same-sex mothers challenging the state’s policy) waived their right to file a response, apparently assuming that the Court would not be interested in revisiting an issue that it had decided per curiam with only three dissenting votes as recently as June 2017.   The petition was circulated to the justices for their conference of September 29, which would be held the week after the death on September 18 of Justice Ruth Bader Ginsburg, who was part of the Pavan v. Smith majority.  Another member of that majority who is no longer on the Court is Anthony M. Kennedy, whose retirement led to Justice Brett Kavanaugh’s appointment.  By the time the Court was to hold its conference on  the 29th, it was clear that Trump would nominate a conservative replacement for Ginsburg and that the Senate would rush to confirm the nominee to fulfil Trump’s goal to ensure a 6-3 Republican conservative majority on the Court in case he sought to contest adverse election results.

Evidently the Box v. Henderson petition, lacking a responsive filing, caught the eyes of one or more of the conservative justices, who had the Clerk of the Court send a request to the plaintiffs to file a responding brief, which was filed on November 10.  On November 23, the state of Indiana filed a Reply brief, which provided a news hook for media to report on November 24 that the new conservative majority might take up the case as a vehicle to cut back on marriage equality by holding that a state may decide that it is not required to presume that the wife of a birth mother is the other parent for purposes of officially recording the birth.

An argument that has been persuasive to lower courts, apart from the “equal treatment” for same-sex marriages statements in Obergefell and Pavan, is that states have applied the presumption in favor of the husbands of birth mothers even when it was clear that the husband was not the biological father, as for example when donor sperm was used to inseminate the wife with the husband’s consent, or when the husband and wife were geographically separated when the wife became pregnant.  Thus, under existing policies in many states, the parental presumption has not been limited to cases in which it was rational to assume that the birth mother’s husband was the child’s biological father.  In this connection, even if Chief Justice Roberts, part of the per curiam majority in Pavan despite his dissent in Obergefell, sticks with his vote in Pavan, there are now five conservatives to vote the other way, two of whom joined Justice Neil Gorsuch’s dissent in Pavan asserting that the issue was not decided simply on the basis of Obergefell.

With the filing of the state’s reply brief, the Petition has been redistributed for the Court’s conference of December 11.  Sometimes the Court rolls over cert Petitions for many conferences before reaching a decision whether to grant review.  If the Court grants certiorari before the end of January, the case would likely be argued during the current term and decided by the end of June. A later grant would most likely be argued during the October 2021 Term.

Counsel listed on the Respondents’ Brief in Opposition include Karen Celestino-Horseman (Counsel of Record) of Austin & Jones, P.C., Indianapolis; attorneys from the National Center for Lesbian Rights (Catherine Sakimura, Shannon Minter, and Christopher Stoll), San Francisco; Douglas Hallward-Driemeier of Ropes & Gray LLP, Washington (who was one of the oral advocates in the Obergefell case); Joshua E. Goldstein, also of Ropes & Gray LLP, Boston office; Raymond L. Faust, of Norris Choplin Schroeder LLP, Indianapolis, William R. Groth of Vlink Law Firm LLC, Indianapolis; and Richard Andrew Mann and Megal L. Gehring, of Mann Law, P.C., Indianapolis.  Several same-sex couples joined in this case, resulting in several Indianapolis law firms being involved.

Death of Justice Ruth Bader Ginsburg Removes a Staunch Advocate of LGBTQ Rights from the Supreme Court

Posted on: September 27th, 2020 by Art Leonard No Comments

Justice Ruth Bader Ginsburg died on September 18, 2020, age 87, having served on the Supreme Court of the United States since August 10, 1993.  Throughout her tenure on the Court she had been a staunch supporter of LGBTQ rights, joining all of the pro-LGBTQ rights majorities and dissenting from all of the adverse decisions except for two in which the Court was unanimous.

In 1993, she joined Justice David Souter’s opinion for the Court in Farmer v. Brennan, 511 U.S. 825 (1994), in which the Court ruled that a transgender inmate who was repeatedly subjected to sexual assault in prison could hold prison officials liable for damages under the 8th Amendment by showing that they knew the inmate faced “a substantial risk of serious harm” and the officials “disregard[ed] that risk by failing to take reasonable measures to abate it.”  Although three members of the Court wrote concurring opinions, Justice Ginsburg did not write in this case, then a new member of the Court.

In 1995, Justice Ginsburg joined the unanimous Court in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), holding that the Boston St. Patrick’s Day Parade was an expressive association whose organizers had a right to exclude from their parade an organization whose message they did not want to include.  While holding that Massachusetts could not enforce its public accommodations law banning sexual orientation discrimination against the parade organizers, the Court affirmed that it was within the legislative and constitutional authority of the state to generally ban public accommodations from discrimination based on sexual orientation.  Justice Souter wrote for the Court.

In 1996, Justice Ginsburg joined the Court’s opinion by Justice Anthony M. Kennedy, Jr., in Romer v. Evans, 517 U.S. 620 (1996), holding that Colorado violated the Equal Protection Clause of the 14th Amendment by enacting a state constitutional amendment that prohibited the state or any of its subdivisions from protecting “homosexuals” from discrimination.  Justice Kennedy wrote that the state could not treat gay people as “strangers from the law” or categorically single gay people out for exclusion based on animus against homosexuality. The Court’s vote was 6-3, with Chief Justice William Rehnquist and Justice Clarence Thomas joining Justice Antonin Scalia’s dissenting opinion.

Justice Ginsburg joined Justice Scalia’s opinion for the unanimous Court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), which embraced a textualist interpretation of Title VII of the Civil Rights Act of 1964, reversing a decision by the 5th Circuit Court of Appeals that a man who was subjected to severe and pervasive harassment of a sexual nature by male co-workers in an all-male workplace could not bring a hostile work environment sex discrimination claim under that statute.  To the contrary, ruled the Court, nothing in the language of the statute suggested that so-called “same-sex harassment” was not actionable, so long as the plaintiff showed that he was harassed because of his sex.  Justice Scalia memorably wrote that even though “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII, … statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”  This mode of interpretation provided a foundation for the Court’s ruling in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the last LGBTQ rights victory in which Justice Ginsburg participated.

In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court ruled 5-4 that the Boy Scouts of America enjoyed a 1st Amendment right to exclude gay men from serving as adult leaders of their Boy Scout troops.  Chief Justice Rehnquist wrote for the Court in an opinion that drew upon Hurley as precedent.  Justice Ginsburg joined two dissenting opinions, one by Justice John Paul Stevens and the other by Justice David Souter.

Justice Ginsburg was part of the 6-3 majority that voted to hold that a Texas law penalizing “homosexual conduct” was unconstitutional as applied to private, consensual adult sexual activity.  Lawrence v. Texas, 539 U.S. 558 (2003).  Ginsburg joined the opinion for the Court by Justice Kennedy, which based its ruling on the Due Process Clause of the 14th Amendment, and overruled Bowers v. Hardwick, 478 U.S. 186 (1986), which had rejected a Due Process challenge to Georgia’s sodomy law.  Justice Sandra Day O’Connor concurred in the judgement but would not vote to overrule Bowers (a case in which she had joined the Court’s opinion), rather premising her vote on Equal Protection.  Scalia dissented, in any opinion joined by Rehnquist and Thomas.

In 2006, Justice Ginsburg joined the unanimous opinion by Chief Justice John Roberts in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), rejecting a 1st Amendment claim by a group of law schools and law faculty members that their institutions should have a right to exclude military recruiters because of the Defense Department’s policy excluding gay people, among others, from the service.  Roberts premised the Court’s ruling on Congress’s power under Article I of the Constitution to “raise and support armies,” holding that Congress could constitutionally support this function by denying federal financial assistance to educational institutions that denied military recruiters the same access that they accorded to other recruiters under the so-called Solomon Amendment that Congress regularly attached to Defense appropriations bills.

Justice Ginsburg wrote for the Court in 2010 in Christian Legal Society v.  Martinez, 561 U.S. 661 (2010), rejecting a claim by students of the Christian Legal Society chapter at Hastings Law School that the school’s denial of official status to CLS because of its exclusionary membership policy violated the 1st Amendment.  The Court divided 5-4, with Justices Kennedy and Stevens issuing concurring opinions, from which it was reasonable to infer that Justice Ginsburg assembled her majority by seizing upon a factual stipulation entered at the district court that the school’s policy required that recognized student organizations allow all students to join, even though the wording of the policy prohibited discrimination based on enumerated characteristics, including sexual orientation, which was the “sticking point” with CLS.  Writing in dissent, Justice Samuel Alito angrily charged the court with failing to address the explicit policy that the school had adopted and then relied upon to withdraw recognition from CLS.  He argued that the Court was enabling viewpoint discrimination by the public law school.  Roberts, Scalia and Thomas joined the dissent.

In Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014), dissenting, Justice Ginsburg rejected the Court’s holding that commercial businesses could assert claims to being exempt from coverage requirements of contraceptives under the Affordable Care Act as an interpretation of the Religious Freedom Restoration Act.  In his opinion for the 5-4 majority, Justice Alito observed (in dicta) that an employer could not rely on religious freedom claims to defend against a race discrimination claim under Title VII.  In her dissent, Justice Ginsburg noted religious objections to homosexuality by some employers and questioned whether the Court would find that employers would have a right under RFRA statutes (patterned on the federal RFRA) to discriminate on that basis.  She specifically noted the case of Elane Photography v. Willock, in which the New Mexico Supreme Court had rejected a state RFRA defense by a wedding photographer being sued under the state’s public accommodations law, and in which the Supreme Court had recently denied a petition for certiorari, as well as a state law case from Minnesota involving a health club owned by “born-again” Christians who denied membership to gay people in violation of a local anti-discrimination law.

Justice Ginsburg joined opinions for the Court by Justice Kennedy in United States v. Windsor, 570 U.S. 744 (2013) and Obergefell v. Hodges, 576 U.S. 644 (2015), both 5-4 rulings, in which the Court invoked concepts of Due Process and Equal Protection to invalidate Section 3 of the federal Defense of Marriage Act (which prohibited federal recognition of same-sex marriages recognized by some states at that time), and to strike down state constitutional and statutory provisions denying same-sex couples the right to marry or recognition of same-sex marriages performed in other states.  (As senior justice in the majority in both cases, Justice Kennedy assigned himself the opinions for the Court.)  As they were 5-4 decisions, Justice Ginsburg’s vote was necessary to the outcome in both cases.  Between the decision in Windsor and the decision in Obergefell, Justice Ginsburg became the first sitting member of the Court to officiate at a same-sex wedding ceremony, an action that led some to call for her recusal in Obergefell.

In Hollingsworth v. Perry, 570 U.S. 693 (2013), Justice Ginsburg joined Chief Justice Roberts’ opinion holding that the proponents of California Proposition 8, which had amended the state’s constitution to define marriage solely as the union of a man and a woman, lacked Article III standing to appeal the district court’s decision holding that measure unconstitutional, where the state had declined to appeal that ruling.  The Court’s opinion expressed no view as to the constitutionality of Proposition 8, focusing entirely on the question of standing, but its effect was to allow same-sex couples to resume marrying in California, which they had not been able to do from the effective date of Prop 8’s passage in November 2008.  Of course, Californian same-sex couples who subsequently married, as well as those who had married in the five-month period prior to the passage of Prop 8, benefited from federal recognition of their marriages under U.S. v. Windsor, which was issued by the Court on the same day as Hollingsworth.  Justice Kennedy dissented, in an opinion joined by Thomas, Alito and Justice Sonia Sotomayor.

In two subsequent per curiam rulings, Justice Ginsburg, who did not dissent, presumably joined in the Court’s disposition of the cases:

In 2016, the Court ruled per curiam in V.L. v. E.L., 136 S. Ct. 1017 (2016), that the courts of one state must accord full faith and credit to an adoption approved by the courts of another state where the court that approved the adoption had general jurisdiction over the subject of adoptions.  The case involved a second-parent adoption by the same-sex partner of the child’s birth mother in Georgia, where they were temporarily residing.  They moved back to Alabama and in a subsequent split-up, the birth mother urged Alabama courts to refuse to recognize the adoption, arguing that had it been appealed, the appellate courts in Georgia would have found it invalid.  There was no dissent from the U.S. Supreme Court per curiam, which asserted the Full Faith and Credit Clause requires state courts to recognize decisions by courts of other states who had jurisdiction to render those decisions under the laws of their states.

In 2017, the Court ruled per curiam in Pavan v. Smith, 137 S. Ct. 2075 (2017), that the state of Arkansas’s refusal to apply the spousal presumption to name the wife of a woman who gave birth to a child as a parent of the child on its birth certificate violated the 14th Amendment as construed by the Supreme Court in Obergefell v. Hodges.  In a dissenting opinion joined by Justices Alito and Thomas, Justice Neil Gorsuch argued that the decision in Obergefell did not necessarily decide this case so the Court should have called for merits briefing and oral argument rather than deciding the case based on the cert documents.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), Justice Ginsburg wrote a dissent, joined by Justice Sotomayor, rejecting the Court’s decision to reverse the Colorado Court of Appeals and the state’s Civil Rights Commission in their ruling that a bakery violated the state’s civil rights law by refusing to make a wedding cake for a same-sex couple.  Justice Kennedy’s opinion for the Court in the 7-2 ruling was premised on the majority’s conclusion that the baker, who was relying on 1st Amendment free exercise and free speech arguments, had been denied a “neutral forum” for the decision of his case due to hostility to his religious views arguably expressed by two members of the Commission during the hearing process.  Justice Ginsburg observed in dissent that there was no evidence of a lack of neutrality on the part of the Colorado Court of Appeals, and she agreed with that court’s conclusion that application of the public accommodations law to the bakery did not violate the 1st Amendment.  In his opinion for the Court, Justice Kennedy noted Supreme Court precedent that generally private actors, such as businesses, do not have a 1st Amendment Free Exercise right to fail to comply with the requirements of state laws of general application that do not specifically target religious practices or beliefs.

Finally, in Bostock v. Clayton County, Georgia,140 S. Ct. 1731 (2020), noted above, Justice Ginsburg joined Justice Gorsuch’s opinion for the Court holding that discrimination in employment because of sexual orientation or transgender status is, at least in part, discrimination because of sex and thus actionable under Title VII of the Civil Rights Act of 1964.  The vote in this case was 6-3, with dissenting opinions by Justice Alito, joined by Thomas, and by Justice Brett Kavanaugh.  In his dissent, Justice Alito asserted that the reasoning of the Court’s opinion would affect the interpretation of more than 100 provisions of federal law, which he listed in an appendix to his opinion.  The immediate effect of the opinion was to ratify the position of the Equal Employment Opportunity Commission, which had earlier recognized its jurisdiction over such claims, and to extend protection against discrimination on these grounds to employees in the majority of states where state or local laws did not provide such protection, although private sector protection under Title VII is limited to employers with at least 15 employees, thus missing the majority of private sector employers.  This decision, which consolidated appeals from three circuits, presented the Court’s first merits ruling on a transgender rights case since Farmer v. Brennan (1993), noted above, although of course the marriage equality rulings, sub silentio, effectively overruled decisions by several state courts refusing to recognize marriages involving a transgender spouse that were challenged is being invalid “same-sex” marriages.

In her career prior to her Supreme Court and D.C. Circuit Court of Appeals service, Justice Ginsburg taught at Rutgers and Columbia Law Schools and was the founder and first director of the American Civil Liberties Union’s Women’s Rights Project.  Litigation by that Project under her direction persuaded the Supreme Court in a series of important rulings beginning with Reed v. Reed in 1971 to recognize sex discrimination claims under the Equal Protection Clause, laying the doctrinal foundation for equal protection claims by LGBT litigants in later years.  Although she was seen as a moderate on many issues at the time of her appointment to the Court by President Bill Clinton, she went on to become a leader of the Court’s progressive wing and in the 21st century a frequent and very pointed dissenter as the center of gravity of the Court moved in a more conservative direction with the appointment of justices by George W. Bush and Donald J. Trump.

Justice Ginsburg’s death left a Supreme Court vacancy less than two months before national elections for President and Congress.  Senate Republicans, who had blocked consideration of President Barack Obama’s nomination of D.C. Circuit Chief Judge Merrick Garland after Justice Scalia died in February 2016, arguing that a Supreme Court appointment should not be made in a presidential election year, now claimed that this was no bar to approving a replacement because the President and the incumbent Senate majority were of the same party.  President Trump announced his nomination of Judge Amy Coney Barrett of the 7th Circuit Court of Appeals on September 26.  Based on her record, if she is confirmed Judge Barrett would likely move the Court sharply to the right, with a 6-3 Republican-appointed conservative majority for the first time in generations, leading to discussion among Democrats about the possibility of expanding the Court if former Vice-President Joseph R. Biden is elected president and Democrats win a majority in the Senate.  Such a plan would require abolishing the filibuster rule by which a minority in the Senate can block a floor vote on legislation, unless the Republicans retained fewer than 40 seats as a result of the election and thus would be unable to block legislation under the filibuster rule without successfully recruiting some Democrats to join them.  Since the filibuster rule was repealed by a bare majority of the Senate in 2017 in order to confirm Justice Gorsuch in the face of a potential Democratic filibuster, it appeared likely at the time Trump announced his nomination that Judge Barrett will be confirmed, but the timing of a floor vote had not been announced by the end of September.

Supreme Court Broadens “Ministerial Exception” to Anti-Discrimination Laws, Leaving LGBTQ Employees or Religious Schools Without Protection

Posted on: July 8th, 2020 by Art Leonard No Comments

On June 15, 2020, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects LGBTQ people from employment discrimination.  On July 8, 2020, the Court took away that protection from most LGBTQ people who are employed as teachers by religious schools.  In a ruling expanding a “ministerial exception” to anti-discrimination laws that it had recognized under the Free Exercise Clause of the First Amendment of the Bill of Right eight years previously, the Court held that employees of religious schools whose job entails teaching religion enjoy no protection against discrimination because  of their race or color, religion, national origin, sex, age, or disability.  The Court’s vote in Our Lady of Guadalupe School v. Morrissey-Berru, 2020 WL 3808420, was 7-2.

The prior decision, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U. S. 171 (2012), involved a teacher at a Lutheran church school, whom the Court found to be, in effect, a “minister” of the Church, since she had been formally “called” to the ministry by the congregation after a period of extended theological study, and who had even claimed the tax benefits of being clergy.  Although the teacher in question did not teach religion as her primary assignment, the Court found it easy to conclude that it would violate Hosanna-Tabor’s right to free exercise of religion under the First Amendment for the government to intervene in any way in its decision not to continue this teacher’s employment, even if – as the teacher alleged – she was being discriminated against because of a disability in violation of the Americans with Disabilities Act (ADA).

The July 8 decision involved two teachers at Catholic elementary schools in the Los Angeles Diocese.  Neither of them was formally a “minister,” neither of them had extended religious education.  As grade school teachers, they each taught the full range of subjects, including a weekly unit on Catholic doctrine at appropriate grade level for their students, but the overwhelming majority of their time was spent teaching arithmetic, science, history, reading, and so forth – the normal range of what a grade school teacher covers, but with an overlay of Catholicism.  They also were supposed to pray with their students every day, and to attend Mass with them weekly.

One of the teachers claimed that she was dismissed because the school want to replace her with a younger person, suing under the Age Discrimination in Employment Act.  The other claimed she was forced out because of a disability, in violation of the ADA.  In both cases, the U.S. Court of Appeals for the 9th Circuit, reversing trial judges, found that these teachers could sue their schools for discrimination because they were not ministers.

The 9th Circuit looked to the Hosanna-Tabor ruling and found that unlike the teacher in that case, these teachers did not have extensive religious education, were not “called” to ministry or titled as ministers by their schools, and were essentially lay teachers whose time teaching religion was a small part of their duties.

Justice Samuel Alito, writing for the Supreme Court, said that the 9th Circuit had misinterpreted the Hosanna-Tabor case.  He rejected the idea that there was a checklist that could be mechanically applied to the question whether somebody is a “ministerial employee,” instead focusing on the religious mission of the Catholic School and the role the teacher plays in that mission.

“The religious education and formation of students is the very reason for the existence of most private religious schools,” wrote Alito, “and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

In a concurring opinion, Justice Clarence Thomas (joined by Justice Neil Gorsuch) argued that the Court needn’t even probe into the details of the teachers’ employment, but instead should defer to a religious school’s determination whether their employees are excluded from coverage of anti-discrimination laws because of the ministerial exception.  However, the Court was not willing to go that far, and Justice Alito’s opinion made clear that how to classify an employee of a religious institution is a fact-specific determination that does require looking at the job duties of the employee.

In her dissenting opinion, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, rejected Alito’s contention that the Court’s ruling was a faithful application of the Hosanna-Tabor precedent.  Although the Court had not explicitly adopted Justice Thomas’s “deference” approach, she charged that it had actually adopted Thomas’s approach when it classified these teachers as covered by the ministerial exception.  She wrote that “because the Court’s new standard prizes a functional importance that it appears to deem churches in the best position to explain, one cannot help but conclude that the Court has just traded legal analysis for a rubber stamp.”

To the dissenters, there was a world of difference between the teacher in Hosanna-Tabor and the teachers in this case, and they could see no good reason why church schools should be free to discriminate on the full list of grounds prohibited by anti-discrimination laws when the schools had no “theological” reason for discharging the teachers.

Federal anti-discrimination laws specifically allow religious schools to discriminate based on religion, but not based on such grounds as race or color, sex, national origin, age or disability, except for their “ministers,” as to whom traditionally the churches would have total freedom to decide whom to employ.  The Supreme Court long recognized churches’ freedom from government interference in employing “ministers.”  Hosanna-Tabor extended the concept from clergy to some religious teachers, but Sotomayor argued that this new decision takes that concept too far away from traditional religious leadership roles, taking protection against discrimination away from thousands of teachers.

The Court’s ruling may have an immediate adverse effect in lawsuits pending around the country by teachers who have been systematically fired by religious schools – almost entirely Catholic schools – after marrying their same-sex partners in the wake of the Obergefell decision five years ago.  By rejecting Justice Thomas’s “deference” approach, the Court leaves open the possibility that some of these discharged teachers might be able to prove that the “ministerial exception” does not apply to them, but, as Justice Sotomayor suggests, in most cases courts will have to dismiss their discrimination claims if their job had a religious component similar to the elementary school teachers, even if that was only a minor part of their role.

Unanimous Federal Appeals Court Rules Indiana Must List Lesbian Mothers on Birth Certificates

Posted on: January 20th, 2020 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit ruled on January 17, 2020, in Henderson v. Box, 2020 U.S. App. LEXIS 1559, 2019 WL 255305, that the state of Indiana must recognize the same-sex spouses of women who give birth as mothers, who should be listed on the birth certificates for their children.  Judge Frank Easterbrook wrote the opinion for the court.

The timing of this appeal made the outcome unsurprising.  In June and December 2016, District Judge Tanya Walton Pratt issued rulings in this case, ultimately holding unconstitutional various Indiana statutes upon which the state relied in refusing to list the same-sex spouses on their children’s birth certificates.  See Henderson v. Adams, 209 F. Supp. 3d 1059 (S.D. Ind., June 30, 2016); Henderson v. Adams, 2016 U.S. App. LEXIS 180330, 2016 WL 7492478 (S.D. Ind., Dec. 30, 2016).  Judge Pratt relied on her reading of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which ruled that same-sex couples have a right to marry and their marriages must be treated the same for all purposes as the marriages of different-sex couples.  Just six months after Judge Pratt’s last ruling, the U.S. Supreme Court stated the same conclusion in Pavan v. Smith, 137 S. Ct. 2075 (2017), ruling that Arkansas could not refuse to list such parents on birth certificates.

In light of the Pavan ruling, one would have thought that Indiana would desist from appealing Judge Pratt’s ruling to the 7th Circuit.  But the state’s lawyers insisted that the state had a right to make the initial birth certificate of a child a record solely of the biological parents of the child, so long as they would allow same-sex spouses to seek an amended birth certificate at a later date.  Judge Pratt had rejected this argument, and the Supreme Court’s Pavan ruling vindicated her reading of the Obergefell decision’s implications for birth certificates.

Describing Judge Pratt’s first ruling, issued on June 30, 2016, Judge Easterbrook wrote, “The district court issued an injunction requiring Indiana to treat children born into female-female marriages as having two female parents, who under the injunction must be listed on the birth certificate.  Because Indiana lists only two parents on a birth certificate, this effectively prevents the state from treating as a parent a man who provided the sperm, while it requires the identification as parent of one spouse who provided neither sperm nor egg.”  Pratt concluded that this was required by Obergefell, which, Easterbrook noted, was confirmed by the Supreme Court in Pavan.

Indiana argued on this appeal that “Obergefell and Pavan do not control,” explained Easterbrook.  “In its view, birth certificates in Indiana follow biology rather than marital status.  The state insists that a wife in an opposite-sex marriage who conceives a child through artificial insemination must identify, as the father, not her husband but the sperm donor.”

By contrast, the plaintiffs argued that Indiana’s statute is status-based, not based on biology, and in fact heterosexually-married women who give birth to children conceived through donor insemination routinely designate their husbands, contrary to Indiana’s rather strange argument that the worksheet the women are given to complete in order to get the birth certificate is intended to elicit the identity of the child’s biological father – in that case, the sperm donor.  Mothers are asked to name the “father” of their child, and the state contended that this means they should be listing the sperm donor if the child was conceived through donor insemination.

That the argument is complete nonsense certainly did not help the state’s case.  Indeed, the semantic games that attorneys from the Office of the Attorney General were playing makes for a curious opinion by Easterbrook, whose tone projects some bemusement.  “The district judge thought the state’s account of mothers’ behavior to be implausible,” he wrote.  “Some mothers filling in the form may think that ‘husband’ and ‘father’ mean the same thing.  Others may name their husbands for social reasons, no matter what the form tells them to do.  Indiana contends that it is not responsible for private decisions, and that may well be so – but it is responsible for the text of Indiana Code Section 31-14-7-1(1), which establishes a presumption that applies to opposite-sex marriages but not same-sex marriages.”  This is the presumption that the husband of a married woman who gives birth is the father of her child.  “Opposite-sex couples can have their names on children’s birth certificates without going through adoption; same-sex couples cannot.  Nothing about the birth worksheet changes that rule.”

The state argued that of course the same-sex spouse can then adopt the child and be listed on an amended birth certificate.  Thus, the same-sex couple will have a birth certificate naming both of them, and the state will retain on file the original birth certificate documenting the child’s biological parentage.  But why should a married same-sex couple, entitled under the Constitution to have their marriage treated the same as a different-sex marriage, have to go through an adoption to get a proper birth certificate?

The lawsuit also sought the trial court’s declaration that the children of the two couples who brought the suit were born “in wedlock,” not “out of wedlock” as a literal interpretation of the state’s statutes would hold.  Yet again, the state’s insistence on perpetuating the former legal regime was rejected.

Judge Easterbrook identified another way that the statutes on the books fail to account for reality. What if the child of a same-sex female couple has two “biological” mothers?  Easterbrook observed that “Indiana’s current statutory system fails to acknowledge the possibility that the wife of a birth mother also is a biological mother.  One set of plaintiffs in this suit shows this.  Lisa Philips-Stackman is the birth mother of L.J.P.-S., but Jackie Philips-Stackman, Lisa’s wife, was the egg donor.  Thus Jackie is both L.J.P.-S.’s biological mother and the spouse of L.J.P.-S.’s birth mother.  There is also a third biological parent (the sperm donor), but Indiana limits to two the number of parents it will record.”

“We agree with the district court,” wrote Easterbrook, “that, after Obergefell and Pavan, a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.”  Because the current statute does that, he continued, “its operation was properly enjoined.”

However, the court of appeals found that Judge Pratt went too far when she declared that all the relevant statutory provisions are invalid in their entirety and forbade their operation “across the board,” because “some parts of these statutes have a proper application.”  For example, the provision that allows for somebody who is not a husband to the birth mother to be identified as the biological father as a result of genetic testing, and, for another example, the provision that “provides that a child is born in wedlock if the parents attempted to marry each other but a technical defect prevented the marriage from being valid.”  Easterbrook asserted that neither of these provisions violated the constitution.  “A remedy must not be broader than the legal justification for its entry, so the order in this suit must be revised,” he wrote.

“The district court’s order requiring Indiana to recognize the children of these plaintiffs as legitimate children, born in wedlock, and to identify both wives in each union as parents, is affirmed,” the court concluded.  “The injunction and declaratory judgment are affirmed to the extent they provide that the presumption in Indiana Code Sec. 31-14-7-1(1) violates the Constitution.”

Circuit Judge Easterbrook was appointed by Ronald Reagan, as was Judge Joel Flaum.  The third judge on the panel, Diane Sykes, was appointed by George W. Bush.  Thus, the ruling is the work of a panel consisting entirely of judicial conservatives appointed by Republican presidents.  The clear holding of Pavan v. Smith was such that they could not honestly rule otherwise, regardless of their personal views about same-sex marriage and parentage.  After all, in Pavan the Supreme Court rejected exactly the same arguments that Indiana was making in this case.

Attorneys for the plaintiffs include Karen Celestino-Horseman, Raymond L. Faust, Megan L. Gehring, Richard Andrew Mann, and William R. Groth, all practicing in Indianapolis in several different law firms.  Amicus briefs were filed for a variety of groups by pro bono attorneys from Chicago, San Francisco, and Washington, D.C., representing the Family Equality Council, the National Center for Lesbian Rights, and 49 Professors of Family Law.

2nd Circuit Holds That It Was Not “Clearly Established” That Sexual Orientation Discrimination in Public Employment is Actionable Under the Equal Protection Clause Prior to Obergefell and Windsor

Posted on: September 8th, 2019 by Art Leonard No Comments

In the course of deciding an appeal by some supervisory public employees of a district court’s refusal to accord them qualified immunity from a discharged employee’s claim of discrimination because of perceived sexual orientation (that took place in 2010), a panel of the U.S. Court of Appeals stated in Naumovski v. Norris, 2019 U.S. App. LEXIS 23891, 2019 WL 3770193 (Aug. 12, 2019), that it was not then “clearly established” by the Supreme Court or the 2nd Circuit prior to the rulings in U.S. v. Windsor and Obergefell v. Hodges that sexual orientation discrimination is actionable under in a 42 U.S.C. Sec. 1983 claim alleging a violation of the Equal Protection Clause.

The opinion for the panel by Circuit Judge Jose Cabranes suggests that it might be “possible today that sexual orientation discrimination in public employment may be actionable under Section 1983,” but at the time of the conduct challenged in this case “such a constitutional prohibition was not yet ‘clearly established’” so the defendants were entitled to qualified immunity from the claim.  In a footnote, Judge Cabranes acknowledged that as early as 1996, in Romer v. Evans, 517 U.S. 634, and again in 2003, in Lawrence v. Texas, 539 U.S. 558, the Supreme Court “had already begun to scrutinize laws that reflected ‘animosity’ toward gays,” but in this case the plaintiff had not alleged “such class-based animosity or desire to harm.”  He also noted that under Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (2008), the plaintiff could not bring a “class of one” equal protection case “simply on the basis that her termination was individually arbitrary.”

On March 10, 2010, Binghamton University’s Athletic Director, James Norris, informed Elizabeth Naumovski, then assistant coach of the women’s basketball team, that she would be discharged if she did not resign.  She resigned and filed her discrimination charges with the NY State Division of Human Rights and the EEOC.  After exhausting administrative remedies against the school, she filed suit in federal court, adding discrimination claims under the Constitution against the Athletic Director and the Head Coach of the team as well as the university employer.  Norris and Scholl sought unsuccessfully to get U.S. District Judge David Hurd to dispose of the claims against them on grounds of qualified immunity, as part of his overall ruling on motions for summary judgment, and this appeal to the 2nd Circuit concerns Judge Hurd’s failure to grant their motions, which he implicitly did by denying them summary judgment.

Naumovski, a single woman in her thirties, became the subject of rumors concerning her possible relationship with a woman on the team, identified in the opinion as J.W.  Complaints from other students that Naumovski was showing favoritism to this woman came to the head coach and the then-assistant athletic director, James Norris, who, according to Judge Cabranes, “states that he understood the rumors to refer to a relationship of favoritism between a coach and a student-athlete, rather than to a sexual relationship between the two.”  Norris discussed these rumors with the Athletic Director, “who assured him that the allegations were the baseless fabrications of disgruntled former members of the Binghamton Athletics community.”  Norris was promoted to the athletic directorship on September 30, 2009.

In response to the persisting rumors during the fall term of 2009, Head Coach Nicole Scholl “imposed various restrictions on interactions between coaches and student-athletes to avoid any perception of impropriety.”  According to Naumovski’s allegations, “As a result of the increased scrutiny triggered by these restrictions, Naumovski began to suffer from depression and stress-induced weight loss.” She met with Norris to address the rumors, and claims he told her that “your problem is that you’re a single female in your mid-30s,” implying that the rumors were due to a perception that she was a lesbian.  Norris denies having made that comment, a potential material fact in the overall scheme of the litigation, in terms of the school’s potential liability.

The rumors persisted into 2010, as Norris continued to receive complaints about “favoritism” by Naumovski towards J.W. Friction developed between Naumovski and Head Coach Scholl, who felt that “Naumovski was trying to undermine her leadership of the team.”  Wrote Cabranes, “Naumovski does not deny tension between herself and Scholl; rather, she claims that any such tension ceased after a February 9, 2010 meeting with Scholl.  Naumovski further claims that Scholl and Norris never expressed any additional concerns about her coaching performance after that time.”  However, during a phone call on February 21, Scholl and Norris agreed that Naumovski’s employment should be terminated at the end of the basketball season in March. “The decision was purportedly based on Naumovski’s demonstrated favoritism toward certain student-athletes and the disruptive impact of her workplace conflicts with Scholl,” writes Cabrances, relating the defendants’ claims.  Meanwhile, Norris continued to receive student complaints and things came to a head when J.W.’s family received “an anonymous, vulgar letter accusing her of ‘screwing’ Naumovski,” which J.W. told Naumovksi about, and which led J.W.’s mother to call Norris; it is disputed whether the letter was mentioned in that phone call.  However, a week after that call, Norris informed Naumovski that she was being fired for performance reasons, but she could resign to forestall being fired, which she did.

Naumovski’s suit alleges discrimination based on her sex, perceived sexual orientation, and national origin (Canadian), in violation of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Equal Protection Clause and the First Amendment (42 USC 1983), as well as the NY Constitution and NY Human Rights Law.  Defendants moved for summary judgment after discovery.  “The motion remained pending for several years,” write Cabranes, not being decided until April 17, 2018, when District Judge Hurd granted summary judgment to Binghamton University and the State University of New York on all constitutional claims but allowed statutory claims to proceed to trial. (Perhaps Judge Hurd was waiting to rule on the motions for a final resolution by the Circuit of whether sexual orientation claims are actionable under Title VII, which emerged with the Zarda v. Altitude Express en banc ruling in February 2018.) As to the individual defendants, Scholl and Norris, Hurd dismissed all claims except for Naumovski’s sex-based disparate treatment and hostile work environment claims under 42 USC 1983 (Equal Protection), failing to address the issue of their qualified immunity from constitutional claims even though they sought to invoke immunity in their summary judgment motion.  Judge Hurd subsequently denied a motion by Norris and Scholl for reconsideration on the immunity argument as untimely under local rules, asserting that it did not raise any new issues, and they appealed to the 2nd Circuit.

Judge Cabranes devoted considerable space in his opinion to explaining the different proof requirements on the statutory claims and the constitutional claims.  In particular, he noted, under Title VII, the plaintiff can win by showing that her sex or perceived sexual orientation was a “motivating factor” for discrimination, but on the constitutional equal protection claim, her burden would be to show that it was a “but-for” factor.  He also devoted a portion of the opinion to itemizing the various other ways in which the statutory and constitutional claims receive different treatment, finding that the district court seems to have conflated the two separate modes of analysis in its decision.  Furthermore, he pointed out that the statutory claims under employment discrimination law run only against the institutional employer, not against individuals, while the constitutional claims could be asserted against individuals who are “state actors,” but who enjoy qualified immunity from personal liability unless it is “clearly established” by appellate precedent that the discrimination with which they are charged is, if proven, unconstitutional.

Turning to the subject of the appeal, Judge Hurd’s implicit denial (or failure to recognize) qualified immunity from the constitutional claims for Norris and Scholl, Cabranes noted that the 2nd Circuit’s review of the district court’s “implicit” rejection of the qualified immunity claims “is complicated by several factors.  First, the District Court never addressed the claims of qualified immunity in its Memorandum-Decision and Order; it is therefore impossible to review its specific reasoning in denying relief on this ground.  Second, while both the Complaint and the District Court’s Memorandum-Decision and Order conclude that Defendants’ alleged conduct constitutes sex discrimination (either through disparate treatment or subjection to a hostile environment), neither explains precisely how Defendants’ conduct can be so construed.  Third, the District Court opinion conflates its analysis of Naumovski’s Title VII and Sec. 1983 claims, rendering our task of reviewing only the Sec. 1983 claims more difficult.”  Attempting to “reconstruct the logic” of the District Court’s denial of immunity to Scholl and Norris on the constitutional claims, the court concluded that “no theory can sustain the District Court’s implicit denial of Defendant’s qualified immunity.”

First addressing the sex discrimination claim, the court found that there was a lack of evidentiary allegations to support the claim, apart from Naumovski’s allegation about Norris’s remark concerning her status as a single woman in her 30s, which the court concluded did not “constitute sufficient evidence to make out a case of employment discrimination,” characterizing it as “the sort of ‘stray remark’ that is insufficient to support an inference of discriminatory intent.”  While Judge Hurd referred to “other indicia” of discrimination intent, the appeals court was not convinced:  “The only ‘other indicia,’ however, is evidence suggesting that Scholl and Norris interpreted the rumors as alleging a sexual relationship between Naumovski and J.W., rather than mere favoritism from one to the other.  The invocation of such evidence is unavailing.  Even if we assume Scholl and Norris interpreted the allegations against Naumovski as sexual in nature, that fact provides no additional support for a conclusion that Scholl’s and Norris’s own actions were based on discriminatory animus toward women in general or any subcategory of female employees in particular,” wrote Cabranes.  Thus, the conclusion that summary judgment should have been granted on the sex discrimination claim.

The court also discussed the possibility that Naumovski could succeed on a sex-stereotyping claim; i.e., “Norris and Scholl stereotyped Naumovski based on her sex (possibly in combination with other characteristics) as more likely to have engaged in a romantic or sexual relationship with J.W.  Defendants then fired Naumovski (at least in part) because of their wrongful and discriminatory belief that she engaged in sexual impropriety with a student and, subsequently, attempted to conceal that stereotyping played any role in their termination decision.”  While the court agreed that such a theory might work in some cases, “Naumovski cannot succeed on such a theory” because of the “but-for” proof requirement for a constitutional violation.  In order to prevail, “Naumovski must establish that a reasonable jury could find that Defendants would not have terminated her based on their stated reasons alone.  To be sure, there may well be cases in which misconduct findings based on sex stereotyping meet the ‘but-for’ discrimination standard,” Cabranes continued.  “Here, however, we do not think that the evidence, even construed in the light most favorable to Naumovski, satisfies that standard.”  Cabranes gives an extended explanation for this conclusion, noting in particular that “Naumovski does not materially dispute that Scholl’s personality and coaching style clashed with her own,” which on its own would be a legitimate reason to let go an assistant coach who was an at-will employee.

Turning to the perceived sexual orientation discrimination claim, Cabranes came to the issue of most direct relevance to Law Notes: whether public officials enjoy qualified immunity from constitutional liability for discriminating against their employees because of actual or perceived sexual orientation.  He pointed out that if the district court was relying on the 2nd Circuit’s 2018 Zarda decision for this proposition, “it erred for at least two reasons.”  First, Zarda was a statutory interpretation case under Title VII, not a constitutional case, thus the Circuit’s decision that discrimination “because of sex” under Title VII includes discrimination because of sexual orientation was not a ruling the sexual orientation claims should be treated the same as sex discrimination claims under the 14th Amendment.  Second, the conduct at issue in this case (2009-2010) predated Zarda by many years.  Given the 2nd Circuit’s pre-Zarda caselaw, Cabranes pointed out, at the time Naumovski was fired, “the ‘clearly established law’ … was that sexual orientation discrimination was not a subset of sex discrimination.”

“Nor could the District Court rely on freestanding constitutional principles separate from Zarda,” continued Cabranes.  “To date, neither this court nor the Supreme Court has recognized Sec. 1983 claims for sexual orientation discrimination in public employment.  Moreoever, when the conduct in this case occurred, neither of the Supreme Court’s landmark same-sex marriage cases – United States v. Windsor and Obergefell v. Hodges – had been decided.  It was, therefore, not yet clear that all state distinctions based on sexual orientation were constitutionally suspect.”  At this point, Cabranes wrote a footnote acknowledging the existence of Romer and Lawrence, but distinguishing them based on Naumovski’s factual allegations. Cabranes’ opinion does not explicitly state that a public official would not enjoy qualified immunity today from an adverse personnel decision based on sexual orientation, but he implies that after Windsor and Obergefell, “state distinctions based on sexual orientation” are “constitutionally suspect,” a point that some scholars have argued, attempting to give more teeth to Justice Kennedy’s opinions in those cases than some might see in them.  To be clear, neither of those cases explicitly states that government distinctions based on sexual orientation are to be treated the same as sex discrimination cases and enjoy heightened scrutiny under the 14th Amendment.  Justice Kennedy did not employ that vocabulary, and arguably placed more weight on the liberty interest in marriage in those cases.

The court also found that Norris and Scholl would clearly enjoyed qualified immunity from a claim that their decision relied on biased student claims against Naumovski, and also that a constitutionally-based hostile environment claim based on sex or perceived sexual orientation in a public employment context was not clearly actionable under 42 USC 1983, as the precedential basis for such claims has been developed thus far only under Title VII.

Summarizing the Court of Appeals holding, Cabranes wrote that Section 1983 claims for discrimination in employment require plaintiffs to establish that the defendants’ discriminatory intent was a “but-for” cause of the adverse employment action, that because of the intent requirements under the Equal Protection clause, a Section 1983 claim for employment discrimination “cannot be based on a respondeat superior or ‘cat’s paw’ theory to establish a defendant’s liability (thus ruling out liability for Scholl and Norris based on complaints by discriminatory students), and defendants were entitled to qualified immunity because, “even when interpreted in the light most favorable to Naumovski, the record cannot support the conclusion that they violated her ‘clearly established’ constitutional rights.”

Naumovski is represented by A. J. Bosman of Rome, N.Y.  Judge Cabranes was appointed by President Bill Clinton.  The other two judges on the 2nd Circuit panel were Ralph Winter (Reagan) and Renee Raggi (George W. Bush).

2nd Circuit Endorses Narrow Interpretation of its Title VII LGBT-Rights Precedent

Posted on: August 16th, 2019 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, sitting in Manhattan, observed in an opinion issued on August 12 that its historic ruling last year in Zarda v. Altitude Express, holding that sexual orientation discrimination violates Title VII of the Civil Rights Act of 1964, does not create a judicial precedent in the 2nd Circuit for purposes of the Constitution’s Equal Protection Clause on the issue of sexual orientation discrimination.

This observation, in an opinion by Circuit Judge Jose A. Cabranes, came in a lawsuit by a woman who was fired early in 2010 from a position as assistant women’s basketball team coach at Binghamton State University in upstate New York after months of rumors that she had a romantic relationship with one of the women on the basketball team.  Naumovski v. Norris, 2019 U.S. App. LEXIS 23891, 2019 WL 3770193 (2nd Cir., Aug. 12, 2019). The plaintiff, Elizabeth Naumovski, who denied that there was any romantic relationship, sued Nicole Scholl, the head coach, and James Norris, the associate athletic director, who made the decision to fire her, claiming a violation of her rights under Title VII and the Equal Protection Clause.  Part of their defense to her constitutional claim was that they enjoyed “qualified immunity” from any personal liability for making the decision to fire her.  District Court Judge David N. Hurd refused to dismiss the claim without discussing the qualified immunity claim, and they appealed.

Under the Supreme Court’s decisions on state actor liability for violating constitutional rights, a government agency or entity such as a public university can only be held liable for its policies, not for discretionary decisions by its management employees.  That is, the doctrine of “respondeat superior,” under which private sector employers can be held liable for the actions of their employees, does not apply in this situation.  Since the University does not have an anti-LGBT employment policy, it cannot be held liable under the Equal Protection Clause, even if a court were to conclude that Ms. Naumovski’s sexual orientation was the reason for her discharge.

However, management employees such as Scholl and Norris can be sued for their decisions violating a public employee’s constitutional rights, if at the time they acted it was “clearly established” in law that the basis for their action was unconstitutional.  Consequently, in ruling on their motion to dismiss the Equal Protection claim against them, Judge Hurd had to determine whether at the time of the discharge in 2010, it was “clearly established,” either by U.S. Supreme Court decisions or 2nd Circuit Court of Appeals decisions, that employees of the state university enjoy constitutional protection from discrimination because of their sexual orientation.   If it was not “clearly established” at that time, Scholl and Norris should be shielded from liability by “qualified immunity,” and their motion for summary judgment should have been granted.

The 2nd Circuit ruled that the motion should have been granted.

“Naumovski’s complaint does not explicitly allege sexual orientation discrimination in its enumeration of her [federal] claims,” wrote Judge Cabranes. “Nevertheless, the District Court appears to have so interpreted her claims.  Indeed, the District Court concluded that ‘Plaintiff has established that she is a member of several protected classes including . . . being perceived as gay.’ We need not decide whether the District Court erred in so construing Naumovski’s complaint.  Even if Naumovski had stated a sexual orientation discrimination claim, Defendants would have qualified immunity from such a claim.”

The court said that any reliance by the district judge on the 2nd Circuit’s decision last year in Zarda v. Altitude Express “in recognizing Naumovski’s arguable sexual orientation discrimination claims” would be erroneous for two reasons.  First, Zarda was a Title VII (statutory) case, not a constitutional case.  Because Altitude Express is a private business, not a government entity, it could not be sued on a constitutional theory.  Furthermore, wrote Cabranes, the Zarda ruling “did not address whether the Constitution prohibits sexual orientation discrimination.  Thus, Zarda is only ‘clearly established law’ for statutory sexual orientation discrimination claims under Title VII.  It does not, however, ‘clearly establish’ constitutional sexual orientation discrimination claims.’”

This is quite disappointing, since the reasoning of Circuit Judge Robert Katzmann’s opinion in the Zarda case should apply equally as a matter of logical reasoning to the question whether sexual orientation discrimination is a subset of sex discrimination, and thus potentially a violation of the Equal Protection Clause.  Elsewhere in his opinion in this case, Judge Cabranes devoted attention to explaining the difference between proof of sex discrimination under Title VII as distinguished from the Equal Protection Clause.  Under Title VII, a defendant can be found to have violated the statute if an employee’s sex was a “motivating factor” in an employment decision, even though it was not the only factor supporting the decision.  By contrast, under the Supreme Court’s approach to Equal Protection, the plaintiff must prove that her sex was the “but-for” cause of the action she is contesting, and the defendant would escape liability if other reasons for its action would provide a valid non-discriminatory reason for the action.

Furthermore, Judge Cabranes pointed out, Zarda was decided in 2018, and Naumovski was discharged in 2010.  “Prior to Zarda,” he wrote, “our Court had expressly declined to recognize sexual orientation discrimination claims under Title VII, much less the Constitution.  Thus, if anything, the ‘clearly established law’ at the time Defendants terminated Naumovski’s employment was that sexual orientation discrimination was not a subset of sex discrimination.  Insofar as the District Court relied on Zarda, therefore, Defendants were surely entitled to qualified immunity.”

The court also pointed out that Naumovski was fired before the Supreme Court had decided U.S. v. Windsor (2013) and Obergefell v. Hodges (2015).  “It was, therefore, not yet clear that all state distinctions based on sexual orientation were constitutionally suspect,” he asserted.  In a footnote, he conceded that in 1996 the Supreme Court had “already begun to scrutinize laws that reflected ‘animosity’ toward gays” when it declared unconstitutional a Colorado constitutional amendment that excluded gay people in that state from protection under state law. “Here, however,” he wrote, “Naumovski has alleged no such class-based animosity or desire to harm.”

Judge Cabranes concluded that even if it is possible that today a public official would not enjoy qualified immunity from constitutional liability for dismissing a public employee because of their sexual orientation, depending how one interprets the current state of affairs in the 2nd Circuit in light of Zarda and nationally in light of Windsor and Obergefell, “at the time of the challenged conduct here such a constitutional prohibition was not yet ‘clearly established.’”

The bottom line in Naumovski’s case is that constitutional claims against Binghamton University and the State University of New York (SUNY) as a whole are dismissed, but several statutory claims against the employers that were not dismissed by Judge Hurd remain in play.  Constitutional claims against Scholl and Norris are now dismissed on grounds of qualified immunity.

Naumovski is represented by A.J. Bosman of Rome, New York.  Scholl and Norris are represented by Margaret Joanne Fowler of Vestal, New York.  The other two judges on the 2nd Circuit panel are Senior Circuit Judges Ralph Winter and Renee Raggi.

Oklahoma Supreme Court Rules for Same-Sex Co-Parent Standing in “Parity” With Birth Mother in Custody Dispute

Posted on: July 1st, 2019 by Art Leonard No Comments

The Oklahoma Supreme Court ruled 8-1 in Schnedler v. Lee, 2019 WL 2588577, 2019 Okla. LEXIS 49 (June 25, 2019), that “a non-biological same-sex parent stands in parity with a biological parent,” and that once standing requirements are met, “the court shall adjudicate any and all claims of parental rights – including custody and visitation – just a the court would for any other legal parent, consistent with the best interests of the child.”  The lone dissenter, Justice Richard Darby, claimed that the court had issued an “advisory opinion” that was beyond its purview, and should have used “judicial restraint” and based its holding on “the narrowest grounds possible.”  Instead, the court treated it prior precedent on the issue of same-sex co-parent standing as obsolete and substituted an entirely new analysis.  Chief Justice Noma Gurich wrote the court’s opinion.

Lori Schnedler and Heather Lee met each other in the early 2000s, while both were employed by the Bartlesville Police Department, their relationship progressing from co-workers to co-habitants of an apartment.  After Lori did overseas military service, they bought a house together and decided to have a child.  “A work friend of Heather’s, Kevin Platt, agreed to serve as the sperm donor,” wrote Justice Gurich, but after donating his sperm, was not an active participant in the relationship between the women and their child.   Until the break-up of the couple years later and the resulting litigation, Kevin, who was married and had children from his marriage, did not have a relationship with the child.  After the break-up and the ensuing litigation, Kevin got involved and began to establish a relationship with the child.

The child was born in July 2007, either years before the Supreme Court decided Obergefell and a 10th Circuit decision, for which cert had been denied, resulted in marriage equality being available in Oklahoma.  The women’s relationship ended in April 2015, as the marriage equality issue was coming to a head in the courts.  Heather left the home they had shared, taking the child with her.  Although she allowed Lori regular visitation for seven months, Heather “suddenly denied Lori any further contact with their daughter,” wrote Gurich. “Since that time, Lori has neither seen nor spoken with J.L.”

Lori filed suit in December 2015, petitioning for an adjudication of the child’s custody, visitation, and child support, relying on the doctrine of in loco parentis, which the Oklahoma courts had recognized to some extend in prior same-sex parent disputes of this nature.  Heather objected to the petition “and sought to join Kevin, the biological father and genetic donor, as a necessary party to the proceedings.  Additionally, both Heather and Kevin brought cross-claims in the action, requesting the trial court’s determination that Kevin was J.L’s ‘biological and natural father’ and therefore entitled to full parental rights of custody, visitation, and support,” even though Kevin “was not demonstrably involved in J.L.’s life” before the lawsuit began.  Heather and Kevin both challenged Lori’s standing to bring the action, and the trial judge actually agreed, interpreting the state’s existing precedent of Ramey v. Sutton, 2015 OK 79, 362 P.3d 217 (Okla. 2015), as requiring the sperm donor to “consent to, and encourage, the non-biological partner’s parental role” in order to find parental standing for the co-parent. In this case, the sperm donor was a third party custody claimant as well and opposing Lori’s petition. The Court of Civil Appeals affirmed the trial court’s dismissal of Lori’s petition.  The Oklahoma Supreme Court granted certiorari “to clarify the standing of non-biological co-parents in same-sex relationships, and to create a meaningful and comprehensive framework for the adjudication of the same.”

First, the court found that the lower courts had misconstrued its earlier holding, which it insisted did not empower the sperm donor to stand as a barrier to the co-parent’s standing in a case like this one.  Going further, the court found its prior precedents using the doctrine of in loco parentis to be inadequate for present purposes, particularly in light of the U.S. Supreme Court’s concern, expressed in Obergefell v. Hodges, that children being raised by same-sex parents should not have to suffer their families being considered as “lesser” to traditional heterosexual families.

“In announcing today’s decision,” wrote Justice Gurich, “we are mindful of the need to establish practical guidelines for state courts.  We conclude that, to establish standing, a non-biological same-sex co-parent who asserts a claim for parentage must demonstrate – by a preponderance of the evidence – that he or she has engaged in family planning with the intent to parent jointly[,] acted in a parental role for a length of time sufficient to have established a meaningful emotional relationship with the child, and resided with the child for a significant period while holding out the child as his or her own child.  As always, a court shall assess these factors with the best interests of the child as its foremost aim.  When a continuing relationship with the non-biological parent is in those interests, a court must honor its validity and safeguard the perpetuation of that bond.  In such proceedings, parties may continue to invoke equitable doctrines and defenses, e.g., equitable estoppel.”

The court specifically rejected the use of in loco parentis as the deciding doctrine in such cases.  Justice Gurich wrote that “in loco parentis – at root, a legal fiction – is ‘by its very nature, a temporary status.’  Temporary and uncertain parental status only exacerbates the frequency of cases like today’s and creates an inherently more unstable environment for the children of same-sex couples.  Their children see them as mom or dad.  The law should treat them as such.”  The court asserted that its holding was “consonant with the constitutional protections guaranteed in Obergefell.

In his dissent, Justice Darby argued that the case could be resolve in Lori’s favor by a finding that the requirements of Ramey v. Sutton had been met in this case and that Lori could be accorded in loco parentis standing.  However, he argued, the court’s reformulation of the rules for finding standing for co-parents was unnecessary, and this an “advisory opinion,” and “This Court does not issue advisory opinions.”

Lori Schnedler is represented y Christopher U. Brech of McDaniel Acord & Lytle PLLC, Tulsa, and Michael F. Smith of McAfee & Taft, also Tulsa.  Heather Lee is represented by Bryan J. Nowling, of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., also of Tulsa.  “No appearance for Kevin Platt, Third Party Defendant/Appellee,” states the clerk’s summary.

District of Columbia Court of Appeals Rules on Same-Sex Common Law Marriage Claim

Posted on: May 6th, 2019 by Art Leonard No Comments

“Brian Gill and Rodney Van Nostrand were in a romantic relationship and cohabited for several years beginning in 2004,” begins Judge Phyllis Thompson’s opinion for the District of Columbia Court of Appeals in Gill v. Van Nostrand, 2019 WL 1827998, 2019 D.C. App. LEXIS 159 (April 25, 2019).  “After their romantic relationship waned, and a few months after Mr. Van Nostrand had a ceremonial wedding in Brazil to another man he had met while on a lengthy work assignment in that country, Mr. Gill filed a complaint for legal separation from Mr. Van Nostrand, alleging that the two men are parties in a common law marriage that began in 2004.”  Van Nostrand’s denial that the men were common-law married led to a trial in D.C. Superior Court, resulting in a decision by Judge Robert Okun rejecting Gill’s claim.  Gill’s appeal of that ruling is the subject of the Court of Appeals’ April 25 ruling.  The District of Columbia Court of Appeals is the equivalent of a state supreme court for the District of Columbia.  Its rulings can be appealed to the U.S. Court of Appeals for the D.C. Circuit.

Judge Thompson’s opinion goes to considerable length to explain why the court affirmed Judge Okun’s ruling, and to set out in some detail how District of Columbia trial courts should evaluate claims that same-sex couples had formed common law marriages prior to the U.S. Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015).  Although the District of Columbia legislated to allow same-sex marriage several years prior to Obergefell, the issue of whether same-sex couples could form such marriages in the District, one of a handful of U.S. jurisdictions that still recognize same-sex marriages, depends on retroactive application of Obergefell’s holding that same-sex couples enjoy a fundamental right to marry as an aspect of liberty guaranteed by the Due Process Clause.  In the case of D.C., of course, the relevant Due Process Clause would be that in the 5th Amendment of the Bill of Rights, whereas the Due Process Clause upon which the Court relied in Obergefell was that in the 14th Amendment, binding on the states.

The D.C. Court of Appeals agreed with Judge Okun that the fundamental right identified by the Supreme Court in Obergefell did apply to the marital aspirations of same-sex couples at the time in question (2004).  The issue is how to decide whether a particular couple was in a common law marriage, when the District’s relevant case law was stated, in large part, in ways pertaining to different-sex couples whose right to marry at the time was legally recognized, as such a right was not then recognized for same-sex couples.  At an early stage in this case, Judge Okun refused Van Nostrand’s motion to dismiss the case, stating “that a party in a same-sex relationship must be given the opportunity to prove a common law marriage, even at a time when same-sex marriage was not legal.”  This led to the trial, in which Van Nostrand testified that he never considered himself to be married to Mr. Gill, and Mr. Gill testified about an exchange of rings, a pledge of monogamy, and his belief that they considered themselves effectively married, if not legally so.

Under District of Columbia precedents, “the elements of common law marriage in this jurisdiction are cohabitation as husband and wife, following an express mutual agreement, which must be in word of the present tense.”  Quoting Coleman v. United States, 948 A.2d 534 (D.C. Ct. App. 2008).  What that means is the people can’t just “drift” into a common law marriage in D.C.  There must be a mutual express agreement, and it can’t just be an agreement that sometime in the future the couple will get married; it must be a present statement of agreeing to live as a married couple, albeit without the formalities of a marriage license and ceremony by a governmentally authorized officiant.  Normally a preponderance of the evidence standard would apply, but depending on the circumstances the court might apply a “clear and convincing evidence” standard, which the court found applicable in this case, where Gill is trying to prove a common law marriage with a man who is legally married to another man.  (The court noted that the clear and convincing evidence standard has been used by D.C. courts in the past when somebody is trying to prove that they have a common law marriage with somebody who is legally married to somebody else.)

“We shall assume arguendo that serious constitutional issues would arise if the trial court’s analysis of common-law marriage operated to the peculiar disadvantage of Mr. Gill and Mr. Van Nostrand as a same-sex-couple, i.e., required them to meet expectations that they as a same-sex couple could meet only with more difficulty than opposite-sex couples would encounter,” wrote Judge Thompson.   “Such an approach is arguably warranted in order to accord same-sex couples who have chosen to share their lives in a union comparable to traditional marriage ‘the same respect and dignity accorded a union traditionally designated as marriage,” quoting Strauss v. Horton, 46 Cal. 4th 364 (Cal. 2009), a decision in which the California Supreme Court ruled that marriages of same-sex couples who were married in California prior to the passage of Proposition 8 would have exactly the same status as all legally-contracted marriages in that state.

The trial court focused on six factors in its analysis in concluding that Gill and Nostrand did not have a common law marriage.

First was the failure of either man, but particularly Mr. Gill, to remember the date on which Gill claimed they exchanged rings that they agreed to wear for the duration of their relationship.  Gill testified that he “decided to surprise Mr. Van Nostrand by purchasing two rings and presenting them to Mr. Van Nostrand along with M& M candies inscribed with “Will you marry me?”  Gill testified that he got down on one knew and proposed to Mr. Van Nostrand, who said yes and allowed Gill to slip one of the rings on his finger.  Van Nostrand denied various particulars of this testimony, and there was no testimonial agreement about the date on which this purportedly occurred. The court found Gill’s testimony, which goes to the crucial question of whether there was an express agreement to be married, as “exceptionally vague,” although, by contrast, Gill remembered precisely both their first date and the first time they had sex with each other.  “The court reasoned that ‘the date on which parties agree to be married surely would be at least as memorable [as], if not more memorable . . . than the date on which’ the parties first had sexual relations ‘or first had a “real date” at a restaurant,’” wrote Thompson.  Gill criticized the judge’s “overreliance” on this factor, but the appeals court did not consider this “unfairly prejudicial” or improperly expecting the parties “to meet expectations of traditional marriage that they, as a same-sex couple, could meet only with difficulty.”  Since the date in question is the date when Gill claims to have proposed marriage, proffered a ring, and received an affirmative response from Von Nostrand, the court found failure to remember the date was not an “unreasonable factor to consider,” taking into account that it was not the only or dispositive factor, merely one of several.

Secondly, the trial court found that neither of the men “told their friends or family about the alleged marriage (or perhaps more correctly, the alleged ‘entry into a commitment comparable to marriage’) and the couple did not commemorate it with a ceremony or celebrate it by going on a honeymoon.”  The court did find that at that time both parties’ families had “harsh anti-gay views” which could explain why there was no contemporaneous communication to them about this topic, and the court acknowledged that “same-sex couples, prior to the legalization of same-sex marriage, might have been less likely to have a public ceremony or honeymoon,” but, pointed out Thompson, the question was “how these parties and their friends in the gay community marked or signified important events in their romantic lives,” and evidence was lacking as to that.  Traditionally, “holding out” as married to one’s relevant community is an important signifier of common law marriage, and there was nothing stopping a same-sex couple from taking a honeymoon trip to celebrate their new relationship.  Gill attempted to show that a European trip the men took in 2005 was their “honeymoon,” but Van Nostrand testified to the contrary.

Furthermore, there was evidence that Van Nostrand was partial to “celebrating events in a flamboyant manner,” as shown by his marriage to Weller da Silva, the Brazilian man whom he legally married in April 2014.  Related Thompson, “Mr. Van Nostrand delivered the proposal while the pair were in a hot-air balloon over the Serengeti, created an album commemorating the proposal, told family members and friends, med Mr. da Silva’s family, and, after the two were married, went on a honeymoon trip to Ecuador and the Galapagos Islands.”  (Sounds fab!!)  The trial court credited Van Nostrand’s testimony that “he would not have entered into a marriage with [Gill] without commemorating such an event with … pomp and circumstance” and the evidence showed that Van Nostrand had the financial ability to sustain such activities, as shown by the “shared history of foreign travel” of the two men during their relationship.

The third factor was that the parties “never inscribed their rings,” a step that Van Nostrand credibly testified they would have done had they considered themselves married.  The court also noted that when marriage became available in Massachusetts, Van Nostrand asked Gill whether he wanted to go there to get married and Gill said no.  He also testified that he asked Gill about having their rings inscribed, but Gill declined, and also declined to enter into a registered domestic partnership, which became available in D.C.  Furthermore, D.C. enacted marriage equality in 2010, but the men did not take the step of formalizing their relationship as a marriage then.  Gill criticized the trial court’s reliance on this factor, but the court found that Van Nostrand credibly testified that these were “the steps he would have taken to symbolize and validate that the parties’ relationship had advanced to a mutual commitment comparable to marriage.”  Here, the court referred to a ruling last year by the Colorado Court of Appeals, Hogsett v. Neale, 2018 WL 6564880, which placed some weight on the failure of a lesbian couple to go out of state to get married as a factor in determining that they did not have a common law marriage under Colorado law.

The fourth factor was that “the parties maintained largely separate finances.”  The house in which they lived together from 2005 was only in Van Nostrand’s name, they had no joint bank accounts or credit card accounts, and even though they discussed creating wills, powers of attorney, and so forth, only Van Nostrand made and executed such documents.  The trial court observed that “although [Gill] was supposed to draft documents giving [Van Nostrand] these same benefits and responsibilities, he failed to do so.”  By contrast, shortly after Van Nostrand married da Silva, they established joint bank accounts and executed wills, powers of attorney and the like.  (A docket search shows that sometime after his marriage to da Silva, Van Nostrand sought to evict Gill from the D.C. home, resulting in litigation in which Gill sought, without success, injunctive relief against the eviction, before a different D.C. trial judge. There is no published opinion, and Judge Okun’s decision in this case is apparently not published, either.)

The fifth factor was Gill’s failure to object or to claim he was in a common law marriage with Van Nostrand when he was informed that Van Nostrand planned to marry da Silva in Brazil.  Gill’s response to this news was not to state that they needed to get divorced first in order for that marriage to take place.  He raised the issue “only after realizing that this would affect” his beneficiary status in terms of Van Nostrand’s employee benefits.  As the court pointedly notes, he seemed to have sprung into action when he was removed from coverage under Van Nostrand’s employment-related health insurance.  He went to an attorney and apparently first learned about the possibility of claiming a common law marriage at that point.  “Mr. Gill asserts that he reacted as he did because he was not aware that the parties’ relationship gave him legally enforceable rights vis-à-vis Mr. Van Nostrand,” observed the court.  The court of appeals found this to be “understandable” as the parties are not lawyers, and the trial court did not deem this as a determinative factor in the analysis.  However, wrote Thompson, “we think the trial court exercised reasonable skepticism in light of Mr. Gill’s financial incentive to claim that the parties had a common-law marriage.  Courts have long ‘regarded common-law marriage as a fruitful source of fraud and perjury,’” quoting In re Estate of Danza, 188 App. Div. 2d 530, 591 N.Y.S. 2d 197 (1992).

Finally, the sixth factor concerns the growing body of court decisions about retroactive common law marriage claims, and particularly a case in which a Pennsylvania trial court did find a common law marriage, In re Estate of Carter, 159 A.3d 970 (Pa. Super. Ct. 2017).  Carter presented ideal facts to find a same-sex common law marriage.  There was a marriage proposal and a diamond ring that Mr. Hunter gave Mr. Carter on Christmas Day 1996, a day easy to remember and prove. Mr. Carter then gave Hunter an engraved diamond ring on February 18, 1997, with the date inscribed, and the men faithfully observed that date as their anniversary for 16 years until Carter’s death.  They had joint banking and investment accounts, owned their home together with a joint mortgage, had mutual wills and powers of attorney, and referred to each other as spouses.  While Judge Okun disclaimed requiring that all these factors be satisfied in order to find a common law marriage for a same-sex couple formed prior to the legalization of same-sex marriages, he reasoned that Gill’s “failure to prove any of these factors substantially undercuts his effort to prove the existence of a common law marriage.”  In this case, Judge Okun found that the men had at best “an agreement to get married at some point in the future.” Wrote Thompson, “We cannot say that the trial court’s reliance on Carter as persuasive authority and its resultant analysis were legally or factually erroneous.”

In conclusion, wrote Thompson, “For all the foregoing reasons, we are satisfied that the evidence did not compel the trial court to conclude that the parties had an express mutual agreement to be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage.  The evidence permitted the court to conclude, as it did, that the parties never expressly agreed to be married, in the present tense.”  And that decides the case consistent with D.C. case law.

Gill is represented by Aaron Marr Page and Christopher J. Gowen.  Jack Maginnis represents Van Nostrand.  As noted, this ruling could be appealed to the U.S. Court of Appeals for the D.C. Circuit.  Federal question jurisdiction is not required for an appeal from the D.C. local courts on questions of D.C. common law, but if it were, this case arguably presents an underlying constitutional question concerning the jurisdiction’s obligation to recognize the fundamental rights of same-sex couples to enter into common law marriages, and the question whether the trial court’s analysis did not adequately respect that right could still be argued on appeal.  However, Judge Thompson took great lengths to reiterate the D.C. Court of Appeals’ view that the court had to take account of contemporary circumstances pre-Obergefell in avoiding unfairly prejudicing the question by imposing unreasonable expectations on how same-sex couples intended to form a common law marriage would have acted in 2004, and that the trial court had done that adequately in this case.

Impatient Christians File Suit Against EEOC’s Interpretation of Title VII and Seek Exemption from Recognizing Same-Sex Marriages

Posted on: April 3rd, 2019 by Art Leonard No Comments

The U.S. Pastor Council (on behalf of itself and others similarly situated), and Braidwood Management, Inc., a business claiming to have religious objections concerning the employment of LGBTQ people (on behalf of itself and others similarly situated), have jointly filed suit in the U.S. District Court for the Northern District of Texas (Fort Worth Division), seeking a declaratory judgment that the Equal Employment Opportunity Commission’s interpretation of Title VII to protect LGBTQ people from employment discrimination violates the federal Religious Freedom Restoration Act and the First Amendment, and they seek to enjoin the federal government from enforcing these policies against any employer who objects to homosexual or transgender behavior on religious grounds.  U.S. Pastor Council & Braidwood Management Inc. v. Equal Employment Opportunity Commission, Case No. 4:18-cv-00824-O (U.S. Dist. Ct., N.D. Texas, filed March 29, 2019).  They seek class certification and nation-wide injunctive relief.  Other named defendants include EEOC Chair Victoria A. Lipnic and Commissioner Charlotte A. Burrows, Attorney General William P. Barr, and the United States of America.  (Lipnic and Burrows are the only currently serving EEOC commissioners, as Trump’s nominees to fill three vacancies were not confirmed in the last session of the Senate, and the Commission as a body lacks a quorum to act at present.)

The headline’s reference to “impatient Christians” points to the Supreme Court’s unexplained delay in deciding whether to grant writs of certiorari in three pending cases that pose the question whether Title VII can be interpreted, as it has been by the EEOC and some circuit courts of appeals, to prohibit employment discrimination because of an individual’s sexual orientation or gender identity.  If the Supreme Court finally takes these cases and decides them during its October 2019 Term, this lawsuit could be at least partially mooted.  But the complaint ranges more broadly, tempting the court (and ultimately the Supreme Court) to reconsider two of its constitutional precedents that are not beloved by the Court’s current conservative majority: Employment Division v. Smith and Obergefell v. Hodges.

The docket number of the case indicates that it has been assigned to District Judge Reed O’Connor, which means that it is highly predictable that the plaintiffs will get much of the relief they are seeking from the district court.  In earlier lawsuits, Judge O’Connor issued nationwide injunctions against the federal government’s enforcement of Obamacare and Title IX in gender identity cases, disagreeing that the term “discrimination because of sex” could be construed to extend to gender identity.  See Franciscan Alliance v. Burwell, 227 F.Supp.3d 660 (N.D. Tex. Dec. 31, 2016) (Obamacare); Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex. 2016) (Title IX).  Since the current political appointees leading the Justice Department probably agree with the plaintiff’s position on all or most of the claims raised in this complaint, one reasonably suspects that any serious defense can only be mounted by Intervenors, and the government would only appeal pro-plaintiff rulings by Judge O’Connor in order to get a rubber stamp approval from the 5th Circuit on the way to the Supreme Court. Trump has worked hard to cement a conservative majority on the 5th Circuit, having quickly filled five of the vacancies preserved for him by the Senate’s refusal to confirm Obama nominees to the circuit courts.  A new vacancy waits to be filled, and more elderly Republican appointees on the circuit (two active Reagan appointees who have been there more than thirty years) are likely to retire soon enough.

The complaint’s first count argues that the government has no compelling reason to enforce a prohibition against discrimination because of sexual orientation or gender identity against employers with religious objections, and thus that the EEOC as a federal agency should be found to be precluded from doing so under the Religious Freedom Restoration Act.  The second count argues that because Title VII exempts religious employers from its ban on religious discrimination, it is thereby not a law of “general applicability,” so Employment Division v. Smith, 494 U.S. 872 (1990), is “inapplicable” to the question whether imposing a non-discrimination obligation on employers who are subject to the statute (those with 15 or more employees) violates their constitutional Free Exercise rights under the 1st Amendment.  The complaint observes that the ministerial exemption to Title VII that the Supreme Court has found for religious institutions does not extend to businesses, and further does not extend to the non-ministerial employees of religious organizations, thus imposing a burden on both kinds of employers who are subject to Title VII’s ban on sex discrimination.  Furthermore, they argue that if the court disagrees with their characterization of Title VII and finds that Employment Division v. Smith would apply in their Free Exercise claim, that decision should be overruled (which, of course, the district court can’t do, but this lawsuit is obviously not intended to stop at the district court).  Justice Neil Gorsuch implied in his concurring opinion in Masterpiece Cakeshop last June that the Supreme Court should reconsider this precedent.

In terms of the practical impact of the EEOC’s position, the complaint says in its third count that Braidwood Management’s benefits administrator has amended its employee benefits plans to recognize same-sex marriages, complying with guidance on the EEOC’s website, and Braidwood wants to instruct the administrator to return to a traditional marriage definition, consistent with the employer’s religious beliefs.  Thus, part of the declaratory judgment plaintiffs seek would proclaim that employers with religious beliefs against same-sex marriage should be allowed to refuse to recognize them for employee benefits purposes.  In several counts, the complaint tempts the court to declare as illegitimate the Supreme Court’s Obergefell decision, and to excuse religious organizations and businesses from having to recognize same-sex marriages, except possibly in states where same-sex marriage became available through state legislation, unlike Texas, where it exists by compulsion of the federal courts (and certainly against the wishes of the state government).

In terms of standing issues, Braidwood points out that the EEOC has actively enforced its interpretation of Title VII by bringing enforcement actions and filing amicus briefs in support of LGBTQ plaintiffs against employers with religious objections, most prominently in the Harris Funeral Home case, in which the EEOC sued a business that had discharged a transgender employee because of the employer’s religious objections.  The funeral home prevailed in the district court on a RFRA defense, the trial judge finding that in the absence of RFRA the funeral home would have been found in violation of Title VII.  However, the 6th Circuit reversed in part, rejecting the district court’s RFRA analysis and finding a Title VII violation.  The funeral home’s petition for certiorari was filed in the Supreme Court last July, but that Court had made no announcement regarding a grant or denial at the time this complaint was filed on March 29 – impatient Christians, again.

The fourth count claims that the EEOC’s requirement that employers post a notice to employees announcing their protection under Title VII is unconstitutionally compelled speech.  “Employees who read this sign and see that Braidwood is categorically forbidden to engage in ‘sex’ discrimination will assume (incorrectly) that Braidwood is legally required to recognize same-sex marriage, extend spousal employment benefits to same-sex couples, and allow its employees into restrooms reserved for the opposite biological sex,” says the complaint, indicating that Braidwood’s proprietor “is not willing to have Braidwood propagate this message without sufficient clarification.”

The sixth count summons the Administrative Procedure Act to attack the EEOC’s issuance of guidance on its website concerning its interpretation of Title VII, claiming that this constitutes a “rule” that is subject to judicial review under that statute.  The complaint asks the court to “hold unlawful and set aside” the EEOC’s regulatory guidance, invoking Section 706 of the APA.  Braidwood Management also claims to speak in this count as representative of all businesses in the U.S. that “object to the constitutional reasoning in Obergefell, excluding employers in states where same-sex marriage was legalized through legislation.”

The complaint lists as plaintiffs’ counsel Charles W. Fillmore and H. Dustin Fillmore of Fort Worth (local counsel in the district court) and Jonathan F. Mitchell of Austin.  The heavy gun here is Mitchell, a former Scalia clerk and Texas Solicitor General who has been nominated by President Trump to be Chairman of the Administrative Conference of the United States (ACUS).  It seems ironic that Trump’s nominee is suing the federal government: the Justice Department and its head (in his official capacity) and the EEOC and its commissioners (in their official capacity), but despite naming the United States as a defendant, plaintiffs are not suing the president by name (in his official capacity, of course).

Kentucky Appellate Court Rejects Lesbian Co-Parent Custody/Visitation Claim, Reversing Family Court

Posted on: December 8th, 2018 by Art Leonard No Comments

Adopting a narrow construction of the Kentucky Supreme Court’s historic same-sex co-parent ruling, Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010), a three-judge panel of the Court of Appeals of Kentucky, ruling on November 30, reversed a decision by Jefferson Circuit Court Judge Deana D. McDonald, and ruled that Teri Whitehouse, the former union partner of Tammie Delaney, is not entitled to joint custody and parenting time with a child born to Delaney during the women’s relationship.  From comments in concurring opinions, it seems clear that this Kentucky Court of Appeals panel deems the U.S. Supreme Court’s marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), to require a bright-line test, under which it will be extremely difficult for unmarried partners to claim parental rights.  The opinion confirms the fears of some critics of the marriage equality movement who predicted that achieving same-sex marriage could undermine the interests of LGBT parents who chose not to marry.

The case is Delaney v. Whitehouse, 2018 WL 6266774, 2018 Ky. App. Unpub. LEXIS 844 (Ky. Ct. App., Nov. 30, 2018).  The court designated the opinion as “not to be published,” which means it is not supposed to be cited and argued as precedent for any other case, although Kentucky court rules say that an “unpublished” decision may be cited for consideration by a court if there is no published opinion that would adequately address the issue before the court.  The whole idea of “unpublished” decisions is archaic, of course, when such opinions are released and published in full text in on-line legal services such as Westlaw, Lexis, and Bloomberg Law, and readily available to practicing lawyers and the courts.

The opinion for the panel by Judge Robert G. Johnson (whose term expired after he wrote the opinion but before it was released by the court) accepts Judge McDonald’s factual findings, but disputes their legal significance.  McDonald found that the parties were in a romantic relationship and participated jointly in the decision to have a child, including the insemination process.  “The parties treated each other as equal partners and clearly intended to create a parent-like relationship” between Whitehead and the child, found Judge McDonald, who also found that “they held themselves out as the parents of this child since before conception.  They engaged in the process of selecting a [sperm] donor together, they attended appointments prior to insemination together, [Whitehouse] was present for the birth, and she has been known to the child as Momma.  The parties participated in a union ceremony, after the birth of the child, and they held themselves out as a family unit with friends and family.”

Judge McDonald referred to Mullins v. Picklesimer, finding that some factual distinctions between the cases were not significant enough to compel a different result, and concluded that Whitehead met her burden of establishing under Mullins that Delaney had waived her “superior right to custody” as the biological mother, and thus had conferred standing on Whitehouse to seek joint custody and parenting time after the parties’ relationship terminated.

The Appellate Court disagreed.  Johnson found that in Mullins, a case decided by the closely divided state supreme court voting 4-3, the court stated that “legal waiver ‘is a voluntary and intentional surrender or relinquishment of a known right, or an election to forego an advantage which the party at his option might have demanded or insisted upon.’”  Also, he noted, the Kentucky Supreme Court “emphasized that although there need not be a written or formal waiver, ‘statements and supporting circumstances must be equivalent to an express waiver to meet the burden of proof.’”

“While it is indisputable that some of the factors set out in Mullins are present in this case,” wrote Johnson, “we are persuaded that those factors fall short of the clear and convincing proof required to establish waiver.  It seems clear that both parties agreed to artificial insemination for the purpose of having a child, that both parties shared parenting responsibilities to some extent, and that for a relatively short period of time they held themselves out as a family unit.  However, ‘no specific set of factors must be present in order to find there has been a waiver.’”  The court in Mullins found “a myriad of factors” supporting waiver, including that the women in that case gave their child a hyphenated last name, which was placed on the birth certificate, that they made a formal written agreement bestowing custody rights on the co-parent, and that even after the parties separated, they continued to share custody for a period of five months.  “In contrast,” wrote Johnson, “Delaney and Whitehouse made no efforts to formalize the custody status of the child at any point and the child bore only Delaney’s name.  Although the parties did participate in a union ceremony after the child was born, that was not a legally cognizable marriage ceremony.  Neither did the parties attempt to formalize their relationship after the decision of the United State Supreme Court in Obergefell v. Hodges.”  (One of the concurring judges noted that Obergefell was decided about a month after the parties had their union ceremony.)

“It is also telling,” Johnson wrote, “that the family court found that the parties intended to create a ‘parent-like’ relationship between Whitehouse and the child, not that Delaney specifically intended to confer parental rights on Whitehouse.  Finally, upon the deterioration of her relationship with Whitehouse, Delaney did not allow Whitehouse to continue to participate in parenting responsibilities with the child,” pointing out that the Mullins court had specifically pointed to the continued five months of shared parenting in that case as tending to show that the co-parent was more than merely a friend or caretaker.

“Because we reverse the trial court’s finding that Whitehouse had standing to seek custody and parenting time with Delaney,” wrote Johnson, “we need not address the family court’s best-interests analysis.”  This, of course, demonstrates clearly the inhumanity of the court’s decision.  The trial court, in a ruling as to which the Appellate Court finds no reason to question that court’s factual findings, deems totally irrelevant the trial court’s conclusion that it is in the best interest of this child to order joint custody and parenting time.  This is to be totally ignored, and a situation that is not in the best interest of the child is to be perpetuated, mainly because, as Johnson intimated and as the concurring judges made clear, these women did not formally marry when the opportunity created by Obergefell presented itself.

Concurring Judge Glenn Acree urged that the Kentucky Supreme Court reconsider Mullins in light of Obergefell, arguing that because same-sex couples can marry, there is no longer any need for Kentucky law to recognize parental rights in unmarried co-parents.  “Obergefell changed everything for same-sex relationships,” wrote Acree.  “Necessarily, it changed how we assess whether a parent has partially waived her constitutional right to raise her child, partial waiver being the theory invented in Mullin.  This case is an illustration.”  He noted that Obergefell was decided within thirty days of the parties’ non-legal union ceremony, so “they had the right and opportunity to legally marry.  They chose not to do so.  Considering the Supreme Court’s emphasis in Obergefell on the importance of the marital relationship, legal significance must be given to a decision not to marry.  Electing not to marry when the opportunity is available should be deemed to fully contradict all allegations by anyone seeking rights to another person’s child based on the Mullins partial waiver theory.  Otherwise, marriage means far less than Obergefell indicates.”

Judge Acree goes on to quote Justice Anthony Kennedy’s flowery description of marriage, stating that this “sentiment permeates the opinion and uplifts the institution of marriage as few opinions have.  In my view, it is not an insincere capitulation to social pressure.  The opinion signals new the judiciary’s recognition of the majesty of marriage.”  Acree advocates a bright line test based on Obergefell, leaving out in the cold all unmarried same-sex partners, regardless of the quality or depth of their relationship with the child.  He argued that failure to adopt such a bright line test “will invite other individuals, and even groups, whether they cohabit with a biological or adoptive parent or not, to claim the partial waiver Mullins invented.”  And, as his parting shot, he wrote, “Although ‘it takes a village’ is a catchy cant, the nucleus of a family is not made up of loose threads of casual affection.  It is a tightly woven fabric of unifying love amongst two parents and their children.

Concurring, Judge Gene Smallwood, Jr., joined with Acree in encouraging the Kentucky Supreme Court to “revisit” the Mullins decision and overrule it, asserting that the dissenting opinion in Mullins had “proven true” and, quoting from a dissenting opinion in another case, wrote, “Mullins was decided as it was because of, and as a way of avoiding the pre-Obergefell prohibitions” on same-sex marriage.  “The conceived basis for the court’s opinion in Mullins no longer exists,” he insisted, urging that the state’s high court “reaffirm all prior precedence on this issue and return the legal standing of parenthood to the safe mooring of the law as guaranteed by the Supreme Court of the United States in Troxel v. Granville, 530 U.S. 57 (2000).”  Troxel held unconstitutional a state law that allowed third parties, such as grandparents, to seek visitation rights with children over the protest of their biological parents, affirming strong constitutional protection for the right of legal parents to exclude other adults from contact with their children.  Many state courts have distinguished Troxel from cases involving same-sex parent presenting facts similar to those in this case of Delaney v. Whitehead.

Teri Whitehouse is represented by Hugh W. Barrow of Louisville.  Tammie Delaney is represented by Louis P. Winner and Kristin M. Birkhold, also of Louisville.  One would anticipate an appeal to the Kentucky Supreme Court, and the case cries out for LGBT rights movement participation, since an overruling of Mullins could endanger the parental rights of numerous unmarried co-parents in Kentucky.