New York Law School

Art Leonard Observations

Posts Tagged ‘President Barack Obama’

5th Circuit Panel Rules Denial of Gender Confirmation Surgery for Transgender Inmate Does Not Violate 8th Amendment

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

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit ruled by a vote of 2-1 on March 29 that the state of Texas did not violate the 8th Amendment right against cruel or unusual punishment by denying gender confirmation surgery to transgender inmate Vanessa Lynn Gibson.  Gibson v. Collier, 2019 WL 1417271, 2019 U.S. App. LEXIS 9397.  The dissent argued that the substantive legal question was not properly before the court.  The majority took the position that a state may categorically refuse to provide gender confirmation surgery (or, as they labelled it, “sex reassignment surgery”) as a treatment for gender dysphoria, regardless of the needs of the individual inmate.

The opinion for the panel was written by James C. Ho, who was nominated by President Donald Trump to fill one of the long-standing vacancies on the 5th Circuit that was preserved by Senate Majority Leader Mitch McConnell’s determined effort to block President Obama from filling circuit court vacancies that opened up during his second term.  The retirement of an active judge created this vacancy in 2013.  Upon confirmation by the Senate, James Ho joined the court on January 4, 2018.  He was previously Solicitor General of Texas, and active in the Federalist Society.  Joining Ho’s opinion was Circuit Judge Jerry Edwin Smith, who was appointed to the court by President Ronald Reagan.  The dissenter was Senior Circuit Judge Rhesa Hawkins Barksdale, who was appointed by President George H. W. Bush.  (President Trump has appointed five out of the sixteen current active judges on the circuit court, among whom two were appointed by President Bill Clinton and three by President Barack Obama.  There is on vacancy pending on the 5th Circuit.)

Judge Ho’s opinion rests on two simple propositions.  Under the 8th Amendment’s text and case law concerning the rights of inmates to medical treatment, denying an inmate a treatment that is controversial within the medical profession and which has rarely if ever been provided to inmates cannot be held to violate the Amendment.  For one thing, he argued, denying sex reassignment surgery is not rare.  Indeed, it is a matter of course, since by his account only once in the nation’s history has any state prison system provided sex reassignment surgery to an inmate, when California recently settled a lawsuit by agreeing to provide sex reassignment surgery to the plaintiff.  Thus, denying such a procedure is not “rare,” and the 8th Amendment only prohibits punishments that are cruel and unusual.  On the other point, he wrote, the case law supports the proposition that the state only violates the 8th Amendment if it exhibits deliberate indifference to a serious medical condition, a demanding test that requires that the treatment requested by the inmate be one as to which there is widespread agreement among health care providers about its necessity.  Thus, if there is significant disagreement among medical authorities about whether a particular treatment is necessary, it doesn’t violate the Constitution for the state to refuse to provide it.

The opinion sets out only the bare bones of factual allegations by plaintiff Scott Lynn Gibson (a/k/a Vanessa Lynn Gibson).  The court uses male pronouns to refer to Gibson, claiming that Gibson did not object, although the litigation papers Gibson prepared while pro se use feminine pronouns. Gibson is an inmate at the Gatesville facility of the Texas Department of Criminal Justice (TDCJ).  Gibson was incarcerated on conviction of two counts of aggravated robbery, and committed additional crimes in prison of aggravated assault, possession of a deadly weapon, and murder.  Upon further conviction, Gibson is sentenced to serve through May 2013, eligible for consideration for parole in April 2021.  Identified male at birth, Gibson has identified and lived as female since age 15, but was not diagnosed as having gender dysphoria at the time of incarceration.

The court accepts that Gibson has gender dysphoria as described in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) published by the American Psychiatric Association, is depressed, and has attempted self-castration and suicide, although according to the record is not presently considered suicidal (although learning of this decision may well affect that).  It was not until after a suicide attempt that Gibson obtained a formal diagnosis.  Gibson has been receiving counseling and hormone therapy, but insists that surgery is necessary to ameliorate her condition. Despite living as a woman, Gibson is incarcerated per the state’s policy in a men’s prison. The state’s formal policy provides that transgender inmates be “evaluated by appropriate medical and mental health professionals and have their treatment determined on a case by case basis,” reflecting the “current, accepted standards of care.”  The policy does not mention surgery, but doctors have repeatedly denied Gibson’s request for surgery because the TDCJ formal policy does not “designate [sex reassignment surgery] as part of the treatment protocol for Gender Identity Disorder.”

Gibson represented herself in this lawsuit until it reached the level of the Court of Appeals, at which point the court appointed counsel to represent Gibson on appeal: Stephen Louis Braga, I, of the University of Virginia Law School’s Appellate Litigation Clinic. This appointment is apparently only for the appeal; had the case been remanded, Gibson would presumably be pro se again.  From the court’s account of oral argument, referred to several times in the opinion, it appears that Braga made concessions at oral argument that supported the court’s ultimate conclusion because of how Judge Ho dealt with the facts, but it is clear that the court was most heavily influenced by a decision of the U.S. Court of Appeals for the 1st Circuit, Kosilek v. Spencer, 774 F. 3d 63 (1st Circuit, en banc, 2014), in which the full 1st Circuit bench reversed a three-judge panel’s 2-1 decision and held that a transgender inmate serving a sentence of life without parole was not entitled to receive sex reassignment surgery.  Most importantly, Judge Ho referred repeatedly to the 1st Circuit’s summary of expert medical testimony offered in that case, filling an important gap in this case’s record, where there is no direct expert testimony because the district court rejected Gibson’s claims outright.  Judge Barksdale’s dissent objects to heavy reliance on the Kosilek ruling in this way.

Prison inmates are entirely dependent on the corrections system for their health care, for obvious reasons.  The Supreme Court and lower federal courts have found that prisoners are entitled to “necessary treatment for serious medical conditions.”  There is a consensus among federal courts that gender dysphoria is a “serious medical condition,” but there is no judicial consensus about whether sex reassignment surgery is a necessary treatment for it, and to date there is no final ruling on the merits by any federal appeals court ordering a state to provide sex reassignment surgery to a transgender inmate.  As the courts have interpreted the 8th Amendment’s ban on cruel and unusual punishment, a “necessary” treatment is one that has achieved general acceptance in the relevant medical specialty, and some courts have relied on Standards of Care published by the World Professional Association for Transgender Health (WPATH) as potentially supporting general acceptance – however, Judge Ho asserts, only in denying motions to dismiss cases, not in ultimate rulings on the merits.

The WPATH Standards state that “for many, surgery is essential and medically necessary to alleviate their gender dysphoria.”  But, Judge Ho observes, in the Kosilek decision, the 1st Circuit reported expert testimony sharply divided over whether sex reassignment is necessary treatment, and some testimony suggesting that WPATH is not an objective source but rather an organization devoted to advocacy for transgender rights whose published standards do not necessarily reflect a consensus of the medical profession, or even of individuals specializing in providing treatment to transgender patients.  Be that as it may, to the Gibson panel majority, this was sufficient to suggest that there is “serious dispute” within the medical profession about the necessity for sex reassignment surgery, and so long as that situation prevails, it is not “deliberate indifference” by the Texas corrections system to categorically refuse to provide such treatment.

While many federal courts have made clear that hormone therapy can be considered necessary for cases of severe gender dysphoria, and that counseling by itself is not always sufficient to meet the constitutional standard of care, even that point is not universally accepted, as Judge Ho demonstrated by citing cases on both sides of the question.  Regardless of how the medical necessity point is resolved, however, the judge pointed out that under the 8th Amendment’s language – cruel and unusual – it is not unusual to deny sex reassignment surgery to inmates diagnosed with gender dysphoria – indeed, it is the norm – and thus such denial cannot be found to violate the Constitution as an “unusual punishment.”

Judge Barksdale’s dissent argued that Gibson has never been afforded the opportunity in the lower courts to present any evidence beyond the factual assertions in her complaint. “Accordingly,” she wrote, “as the majority notes correctly, this appeal springs from this very unusual and improper procedure and resulting sparse summary-judgment record, which is insufficient for summary judgment purposes,” so she dissented from “the majority’s reaching the merits of this action, which concerns the Eighth Amendment’s well-established requirements for medical treatment to be provided prisoners.”

Judge Ho specifically responds to Barksdale’s various objections by asserting that it would be a waste of time and judicial resources to remand the case to build a factual record because, as he found, categorical denial of a right to sex reassignment surgery is so well-founded in the existing case law and facts readily available from published sources, including the Kosilek decision, that there is no need to compile a record of the individual facts of Gibson’s case.  The panel majority considers that Gibson’s factual allegations fail to generate material fact issues that would need to be resolved before the court could render a decision on the merits as a matter of law. To the majority, there is no disputing that medical practitioners are divided as to whether sex reassignment surgery is a necessary treatment, so there is no need for inquiry into Gibson’s individual case.

Judge Ho drew an analogy to an attempt by an inmate to obtain a drug that the Food and Drug Administration (FDA) has not approved, pointing out that no court would find that a prisoner’s right to receive necessary treatment would be abridged by refusing to provide a treatment that has not been approved by the FDA.  He also relies on some outdated information concerning practices under Medicaid and Medicare, as the Obama Administration withdrew the formal refusal to fund sex reassignment surgery under those programs, and there actually is a small but growing body of case law finding that these government programs must provide such treatment in appropriate cases, consistent with the Equal Protection Clause.  There is also a U.S. Tax Court decision finding that the costs of sex reassignment surgery are tax deductible, based on its conclusion that it is a medical necessary treatment within the meaning of the Internal Revenue Code’s medical deduction provisions.  (Law Notes reports below a new decision by the Iowa Supreme Court holding that refusing to provide such treatment under the state’s Medicaid program violated the Iowa civil rights law’s ban on gender identity discrimination. EerieAnna Good and Carol Beal v. Iowa Department of Human Services, 2019 WL 1086614, 2019 Iowa Sup. LEXIS 19 (March 8, 2019).)  But what Ho is looking for is a professional medical consensus, not a legal consensus, and that has not yet been achieved, in the court’s view.

Gibson can seek rehearing en banc or petition the Supreme Court for further review.  Failing that, however, the precedent is now set for the states of the 5th Circuit – Texas, Louisiana and Mississippi – as they were previously set for the 1st Circuit – Maine, New Hampshire, Massachusetts, and Rhode Island, and Puerto Rico – that state corrections systems can categorically refuse to provide gender confirmation surgery to transgender inmates.

The Dominoes Continue to Fall as Federal Courts Strike Arkansas and Mississippi Marriage Bans

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

On November 25, 2014, U.S. district court judges in Arkansas and Mississippi issued rulings declaring unconstitutional the constitutional and statutory bans on same-sex marriage in those states.  In Arkansas, District Judge Kristine G. Baker stayed her ruling pending an appeal to the 8th Circuit Court of Appeals by the state, but the situation was complicated by another marriage equality case pending before the state’s Supreme Court, which may render this ruling superfluous depending on timing.  In addition, Attorney General Dustin McDaniel, a Democrat who personally supports same-sex marriage but who had claimed to be defending the ban as his duty, indicated that he would confer over the Thanksgiving holiday with the incoming Republican Attorney General, Leslie Rutlage, an opponent of same-sex marriage, before deciding whether to appeal.  In Mississippi, District Judge Carlton W. Reeves granted the state a two-week stay during which it may seek a further stay pending appeal from the 5th Circuit Court of Appeals, where marriage equality cases from Texas and Louisiana are scheduled for argument on January 9.  There was little doubt that the state would immediately seek a stay from the 5th Circuit.

Both of the judges who ruled on November 25 were appointed by President Barack Obama and seated during his first term of office, Judge Reeves in 2010 and Judge Baker in 2012.

Although dozens of federal district judges have issued rulings in similar cases over the past year, neither of these judges skimped on their opinions, exploring both procedural and substantive issues in depth, as their opinions will likely be appealed to circuit courts that have yet to weigh in on the questions presented.  Both judges were undeterred by the recent ruling by the U.S. Court of Appeals for the 6th Circuit, rejecting challenges to the marriage bans in Ohio, Michigan, Tennessee and Kentucky.  Both judges were not persuaded by 6th Circuit Judge Jeffrey Sutton’s reliance on the Supreme Court’s 1972 summary affirmance of negative ruling by the Minnesota Supreme Court as a currently binding precedent, finding that it had been superseded by more recent developments in the Supreme Court, and emphasizing that the overwhelming majority of federal courts considering this issue over the past year have found Baker to be no impediment to striking down the bans.

Both judges were writing their opinions against the obstacles of circuit court rulings that preluded certain doctrinal moves.  In the 8th Circuit, a 2006 decision rejecting a challenge to Nebraska’s constitutional amendment included language indicating that the court believed the amendment would survive rational basis review, which that court deemed the appropriate standard for evaluating claims of sexual orientation discrimination.  Undeterred, Judge Baker followed the lead of 9th Circuit Judge Marsha Berzon, whose concurring opinion in the Nevada/Idaho marriage ruling of October 7 argued that bans on same-sex marriage are a form of sex discrimination, and thus merit heightened scrutiny.  In the 5th Circuit, prior precedents also reject heightened scrutiny for sexual orientation discrimination claims.  This did not deter Judge Reeves, who found that the Mississippi marriage ban fails even the usually deferential rational basis test.

Both judges also ruled against the same-sex marriage bans under an alternative Due Process theory, finding that Supreme Court precedents recognize a fundamental constitutional right to marry as an individual right of every citizen, subjecting to strict scrutiny any attempt by the state to interfere with the choice of marital partner.  A law that does not survive rational basis review or heightened scrutiny cannot, by definition, survive strict scrutiny, the most demanding level of judicial review.

Both judges were also careful to address various procedural and jurisdictional arguments raised by the state defendants, systematically and respectfully analyzing and then rejecting them.  Judge Baker confronted a particularly complicated argument, as the Arkansas Supreme Court held oral arguments less than a week earlier in the state’s appeal of a trial judge’s marriage equality ruling from earlier in 2014, and there is some argument that federal courts should abstain from deciding issues that are pending in the state courts.  Judge Baker demonstrated that there were distinctions between the cases that counseled against federal court abstention, not least that the plaintiffs in the federal case were not participating in the state case.  Both judges emphasized the duty of federal courts to deal with federal constitutional claims when they are appropriately presented by plaintiffs have meet the standing requirements.

The plaintiffs in the Arkansas case had presented Judge Baker with a panoply of constitutional arguments, and she carefully picked among them, rejecting — as have some other judges in recent decisions — the argument that the state’s failure to recognize marriages contracted out of state violates the constitutional right to travel between the states, as well as rejecting the plaintiff’s sexual orientation discrimination claim.  However, she found that while the plaintiffs had met all the tests required to obtain an injunction against the state, the Supreme Court’s issuance of a stay in January in the Utah case set the path for her response to the state’s request in this case to keep the ruling from going into effect while the state appeals.  However, she wrote, “If no timely notice of appeal is filed, this injunction shall take immediate effect upon the expiration of the time for filing a notice of appeal.”

Judge Reeves’ decision was substantially longer than Judge Baker’s, because he decided, despite 5th Circuit precedent, to take on the question whether sexual orientation discrimination claims should be subjected to heightened or strict scrutiny.  One suspects this was a reaction to extraordinary briefing on the question provided by the plaintiffs and their amici.  As a result, Reeves’ opinion includes within it a virtual monograph on the history of anti-gay discrimination in Mississippi, leading him to explicitly counter the suggestion by some judges that gay marriage litigants don’t need the assistance of the federal courts since they can obtain the right to marry through the ordinary political process.  While that might be possible someday in Michigan, for example, wrote Reeves, it seemed unlikely in Mississippi.

“A common argument against homosexual equality is that the gay and lesbian community is so popular that it needs no judicial protection from the will of the majority,” wrote Reeves.  “In this vein, the U.S. District Court for Nevada, which upheld that state’s same-sex marriage ban until the Ninth Circuit reversed, found that ‘the public media are flooded with editorial, commercial, and artistic messages urging the acceptance of homosexuals.’  He noted that the President now supports same-sex marriage.  But pointing to statements of popular support, those of individual politicians, or even the national ‘climate’ is not the standard.  The standard is whether homosexuals in Mississippi have ‘the strength to politically protect themselves from wrongful discrimination.’  Much of that discrimination, of course, happens at the state and local levels, far from celebrities and national politicians.  On this question, it can only be concluded the Mississippi’s gay and lesbian community does not have the requisite political strength to protect itself from wrongful discrimination.”  He noted particularly that the Mississippi anti-gay marriage amendment passed by the largest margin of any of the numerous such measures that appeared on state ballots in 2004, as well as the recent enactment of a measure that “was perceived to condone sexual orientation discrimination” by allowing businesses to deny their services based on the owners’ religious objections.

Thus, argued Reeves, if he were free from binding 5th Circuit precedent, he would apply heightened scrutiny to the plaintiffs’ sexual orientation claim, and he suggested that the 5th Circuit should reconsider its precedent.  He would not take the alternative approach of treating this as a sex discrimination case in order to apply heightened scrutiny because, as he pointed out, it was unnecessary to do so.  He was invalidating the ban using strict scrutiny under the Due Process Clause, and he also found that none of the state’s articulated justifications for the ban even met the less demanding rational basis test for an Equal Protection analysis.

Both Reeves and Baker, countering contentions by the state that U.S. v. Windsor was a federalism ruling that support the state’s right to ban same-sex marriages, invoked Justice Scalia’s dissents in Windsor and Lawrence v. Texas, in which one of the most conservative justices on the Supreme Court asserted that the reasoning of the Court in those cases would create an argument in support of a constitutional right for same-sex couples to marry.

“Today’s decision may cause uneasiness and concern about the change it will bring,” he concluded.  “But ‘things change, people change, times change, and Mississippi changes, too,” he wrote, quoting the former segregationist governor, Ross R. Barnett, Jr., who he commented “knew firsthand” the truth of these words.  “Mississippi continues to change in ways its people could not anticipate even 10 years ago,” when the marriage amendment was passed.  “Allowing same-sex couples to marry, however, presents no harm to anyone.  At the very least, it has the potential to support families and provide stability for children.  This court joints the vast majority of federal courts to conclude that same-sex couples and the children they raise are equal before the law.  The State of Mississippi cannot deny them the marriage rights and responsibilities it holds out to opposite-sex couples and their children.  Mississippi’s statute and constitutional amendment violate the Fourteenth Amendment to the United States Constitution.”

Lead counsel for plaintiffs in the Mississippi case is Roberta Kaplan of New York’s Paul Weiss Rifkind Wharton & Garrison, who represented Edith Windsor in her successful challenge to Section 3 of the federal Defense of Marriage Act.  Jack Wagoner, a Little Rock attorney, is lead counsel in the Arkansas case.

Kansas Marriage Equality Ruling May Go to the 10th Circuit for En Banc Review

Posted on: November 5th, 2014 by Art Leonard No Comments

U.S. District Judge Daniel Crabtree ruled on November 4 in Marie v. Moser that the Kansas ban on same-sex marriage violates the 14th Amendment.  The Obama appointee, who has been a federal judge for less than a year, rejected the state’s argument that the U.S. Supreme Court’s 1972 ruling in Baker v. Nelson “controls the outcome here” and instead applied the recent decisions by the 10th Circuit Court of Appeals, Kitchen v. Herbert and Bishop v. Smith, which struck down Utah’s and Oklahoma’s s same-sex marriage bans as a violation of the 14th Amendment.  The Supreme Court denied petitions to review those rulings on October 6, making them the binding precedent for all federal courts within the 10th Circuit, including Kansas.

Before the Supreme Court’s announcement, the only state in the 10th Circuit where same-sex couples could marry was New Mexico, as a result of a 2013 ruling by that state’s highest court.  After October 6, same-sex couples began marrying in Utah and Oklahoma, and soon thereafter federal district court rulings in Wyoming and Colorado led to marriage equality in those states, leaving Kansas the last state in the circuit resisting the marriage equality tidal wave.

Litigation in Kansas proceeded on parallel tracks.  An existing marriage equality case was going nowhere fast, so the ACLU of Kansas filed this new lawsuit, Marie v. Moser, on behalf of two same-sex couples seeking the right to marry in the state, naming as defendants Kansas Secretary of Health and Environment Robert Moser, whose department is responsible for administration of the state’s marriage laws, and two county clerks whose offices were unwilling to allow same-sex marriages by the two couples.  Meanwhile, Chief Judge Robert Fairchild of the state’s Seventh Judicial District (Douglas County) issued an administrative order requiring the Douglas County clerk to issue licenses to same-sex couples, relying on the Supreme Court’s denial of review for the 10th Circuit rulings. Kansas Attorney General Derek Schmidt promptly applied to the Kansas Supreme Court for an ruling invalidating Fairchild’s order.  That court stated that the Douglas County clerk could continue to accept license applications, but none should be processed until the Supreme Court could hold a hearing to determine whether Fairchild exceeded his authority and whether, indeed, the 10th Circuit precedent overrides Kansas law and requires the state to allow same-sex marriages. The Supreme Court set that hearing to take place on November 6.

Meanwhile the ACLU pushed forward quickly with a motion for preliminary injunction in its case.  Judge Crabtree held a hearing on the motion on October 31.  Attorneys for the state urged Crabtree to abstain from deciding the case while the matter was pending before the Kansas Supreme Court, and he devoted much of his November 4 ruling to refuting the state’s various arguments as to why the federal court should let this issue be decided first by the state court.  This is why it took Crabtree 38 pages of legal analysis to decide a case that, at least as to the merits, has already been decided.  He spent little time in his opinion on the merits, and almost all his time on issues of standing, jurisdiction, justiciability and federal abstention, ultimately concluding that none of the state’s technical arguments would justify delaying his ruling in light of the 10th Circuit’s clear precedent.

“At the preliminary injunction hearing,” he wrote, “defendants’ counsel tried to differentiate Kansas — and its same-sex marriage ban — from the Utah and Oklahoma provisions nullified in Kitchen and Bishop.  He argued that Kansas, by statute, recognizes common law marriage and plaintiffs could achieve married status under the common law variant of marriage.”  This is an outright falsehood, of course, as Kansas has never applied the doctrine of common law marriage to same-sex couples and has not indicated any willingness to do so prior to this hearing. “This argument,” continued Crabtree, “even if accurate, proves too much.  On its best day, this argument contends that Kansas’ common law marriage alternative provides same-sex couples access to a separate but equal classification of marriage.  That is, opposite-sex citizens can marry by either statutory or common law marriage while same-sex couples must confine their marriages to the common law alternative.  Thus, defendants’ alternative way of looking at the same-sex ban still denies plaintiffs equal protection of Kansas’ marriage laws.”  And, he concluded, “Because Tenth Circuit precedent is binding on this Court, Kitchen and Bishop dictate the result here.”

However, acknowledging that his refutation of the various procedural arguments had an outside chance of catching the attention of the 10th Circuit, Crabtree acceded to the state’s request that he stay any ruling to give them time to file an appeal.  “Defendants’ stay request presents a relatively close call,” he wrote.  On the one hand, the 10th Circuit “has settled the substance of the constitutional challenge plaintiffs’ motion presents” and “under the Circuit’s decisions, Kansas law is encroaching on plaintiffs’ constitutional rights.  But defendants’ arguments have required the Court to make several jurisdictional and justiciability determinations, and human fallibility is what it is; the Circuit may come to a different conclusion about one of these threshold determinations.  On balance, the Court concludes that a short-term stay is the safer and wiser course.”

Thus, Judge Crabtree stayed his order for one week until 5 pm on November 11 to give the state time to seek a longer stay pending appeal from the 10th Circuit.  Responding to the ruling, Attorney General Schmidt announced that the state would ask the 10th Circuit to take the case en banc, by-passing the usual three-judge panel to a hearing before the entire 10th Circuit bench of twelve active judges.  (Of those, five were appointed by President Obama, two by President Clinton, one by the first President Bush, and four by the second President Bush.)  Schmidt pointed out that neither Utah nor Oklahoma had asked for en banc review of the decisions in their cases by the same three-judge panel, and neither Colorado nor Wyoming appealed the recent district court rulings in light of the Supreme Court’s refusal to review the Utah and Oklahoma cases.  Thus, Schmidt found a glimmer of hope that Kansas might persevere as a bastion of traditional marriage in the 10th Circuit.  Both Schmidt and Governor Sam Brownback, staunch opponents of same-sex marriage, won re-election on the day that Judge Crabtree issued his opinion.

Update Note:  The 10th Circuit turned down the state’s request for a stay of Judge Crabtree’s decision on Nov. 7.  On Nov. 10, the state filed an application for a stay pending appeal with Justice Sonia Sotomayor at the Supreme Court, and she gave the plaintiffs until 5 pm on Nov. 11 to file their response, which the ACLU of Kansas accomplished with time to spare.  At the end of the workday on Nov 12, the Supreme Court rejected the state’s motion for a stay pending appeal.  Justices Scalia and Thomas noted that they would have granted the stay.

 

The Obama Government Contractor Executive Order

Posted on: July 19th, 2014 by Art Leonard No Comments

The White House has announced that President Barack Obama will sign an executive order on July 21, 2014, amending Executive Order 11246 to add “sexual orientation” and “gender identity” as prohibited grounds of discrimination by government contractors.  Announcements emanating from the White House suggest that the addition of these terms to the existing executive order are the only substantive changes that will be made.  The non-discrimination requirements will be included in new federal contracts made after the Labor Department has published final regulations implementing the amendments, probably beginning early in 2015.  Only new contracts entered after that date will be affected by the amendments.  [Update: The Order was signed this morning, July 21, and in addition to amending EO 11246, also amends EO 11478, which establishes non-discrimination policy within the Executive Branch, by addition “gender identity” to the categories already listed in the EO, which was originally adopted in 1969 by President Richard M. Nixon and was amended by Bill Clinton to add “sexual orientation” during the 1990s.]

EO 11246 was signed by President Lyndon B. Johnson on September 24, 1965, just a few months after Title VII of the Civil Rights Act of 1964 went into effect at the beginning of July 1965.  EO 11246 charged the Labor Department, through its Office of Federal Contract Compliance Programs (OFCCP), to oversee a program under which “government contracting agencies” would include in every contract (with some exceptions) a provision under which the contractor agreed not to discriminate in employment because of race, color, religion, sex or national origin, the categories of forbidden discrimination under Title VII, and agreed to abide by rules, regulations and relevant orders promulgated by the Labor Department to enforce this requirement.  Contractors are required generally to include similar provisions in any subcontracts they make as part of their performance of their federal contracts.  The penalty for “noncompliance” with these requirements could be cancellation, termination or suspension of the contract, and ineligibility for future contracts.  Complaints about noncompliance are handled administratively; the president does not have the power to enact laws that can be enforced by individual plaintiffs in the federal courts.  Generally EO 11246 charges the Labor Department to investigate complaints, to try to facilitate settlements, and to refer cases that involve violations of federal statutes to the appropriate enforcement agencies, such as the Equal Employment Opportunity Commission (EEOC).  Of course, the EEOC would only have jurisdiction to initiate enforcement action over complaints involving forms of discrimination prohibited by the statutes that agency is charged with enforcing, such as Title VII.

In 2002, President George W. Bush amended the executive order to provide that “this Order shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”  However, the Order states, “Such contractors or subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”

According to advance word from the White House, President Obama’s amendments will not change this 2002 religious exemption and will not expand it in any way.  That is to say, religious corporations, associations, educational institutions or societies that contract with the federal government to provide services or goods will have to agree not to discriminate in their employment practices on the ground of sexual orientation or gender identity, which may present some of those organizations with particular challenges in light of the religious doctrines to which they adhere.  This raises immediate questions about whether religious organizations might plausibly argue that they cannot recognize a gay person as a member in good standing of their faith, regardless of that person’s professed beliefs?  Who gets to decide, for example, whether an individual professing to be Catholic but also being openly gay can be denied employment by a Catholic agency under contract to the federal government to provide social welfare services to the public, because the agency does not believe that an openly gay person can be deemed to be a practicing Catholic?

The First Amendment’s Free Exercise Clause generally protects religious organizations from interference by the government in their religious activities.  The Supreme Court has held that organizations of any type do not have a constitutional right to refuse to comply with laws of general application that do not single out religious practices for prohibition.  At the same time, the Court has held that free exercise of religion includes giving religious organizations free reign in their employment policies regarding “ministers,” persons to be employed to carry out the religious mission of the organization.  There is some controversy about who can be deemed a ministerial employee, litigation tending to focus on teachers and administrators in religious schools who teach secular subjects but are deemed by the schools to be “ministers” nonetheless and required to sign employment contracts that commit them to avoiding conduct that violates the tenets of the religion.

After the Supreme Court issued its key ruling about the requirement to comply with laws of general application, Congress passed the Religious Freedom Restoration Act (RFRA), providing that persons with religious objections to complying with laws of general application could claim a religious exemption unless the government could show that the government had a compelling interest supporting the general law and that the law provided the least restrictive alternative to achieving that interest.  In effect, Congress wanted to restore prior Supreme Court case law to the extent possible through a statute by imposing upon itself and the federal regulatory apparatus a limitation on its ability to compel people to comply with legal requirements that would violate their religious beliefs.  Many states passed similar laws placing the same restrictions on their own legislative and regulatory functions.

Last month, the Supreme Court ruled in Burwell v. Hobby Lobby Stores that the federal Dictionary Act’s definition of “person” to include corporations applies to RFRA, in a case where two closely-held family-owned business corporations claimed an exemption from complying with regulations under the Affordable Care Act requiring them to cover certain contraceptive methods in health insurance for their employees.  The Court went on to hold that, assuming the government had a compelling reason for including these contraceptive methods in its coverage requirements, requiring these employers to arrange for and pay for the coverage was not the least restrictive method of achieving the coverage goal, as the government could provide the coverage directly itself, or could provide some other mechanism that would make the coverage available without imposing on the objecting corporation.  Another example of a less restrictive alternative cited by the Court was a regulation that the administration had adopted for religiously-identified non-profit corporations, who could signify their objections to the specific items of coverage on a form provided by the government that they would submit to their health insurer, which would then be required to provide the coverage and seek reimbursement from the government.  (That regulation is under attack by some religious non-profit corporations, that claim that executing the form and sending it t0 their insurer substantially burdens their free exercise rights as well.)

The Court’s Hobby Lobby ruling raised immediate fears about whether corporations owned or operated by individuals with religious objections to homosexuality and/or same sex marriage might claim exemptions from employing or serving gay people or same-sex couples.  In her dissenting opinion, Justice Ruth Bader Ginsburg cited two cases on this point, in which state courts had rejected religious exemption claims from state public accommodations laws by a Minnesota health club, which did not want to have gay members, and a New Mexico wedding photographer, who had rejected a job preparing a wedding album for a lesbian couple.  The New Mexico case also involved that state’s version of RFRA, which the New Mexico Supreme Court held was not violated by application of the public accommodations law to a small business.  Similarly, there is litigation pending in Colorado involving a baker who rejected an order to provide a cake for the wedding celebration of a gay male couple.  These are not the kinds of businesses that would likely contract with the federal government, but the nature of the problem is clear.

Under the Executive Order, for example, could a closely-held family-owned company that produces certain technology that the federal government wants to buy, or that provides consulting services that the federal government wants to obtain, insist that for religious reasons it cannot employ gay people, or more particularly cannot continue to employee gay people who marry same-sex partners?  (There are many reports now of Catholic schools that have employed gay people as teachers and administrators for many years suddenly terminating their employment after learning that these people are marrying or have married a same-sex partner.)  Could a federal contractor refuse to include the same-sex spouse of an employee in its employee benefits plan on the same-basis that it includes different-sex spouses, because of religious objections to same-sex marriage?  EO 11246, as amended on July 21 by President Obama, would probably say no.  But if the protesting contractor sought protection from the non-discrimination requirement under RFRA, how would it fare?

These questions are difficult to answer prospectively.  In his opinion for the Court in Hobby Lobby, Justice Alito said that the court was ruling on the case before it, focusing on whether a closely-held family-owned business with religious objections to some forms of contraception was entitled to an exemption from ACA coverage requirements, at least to the extent that non-profit religiously-affiliated organizations had already been accorded by the Obama Administration in its regulations.  The Court, according to Alito, was not purporting to establish a wide-ranging exception to all legal obligations for all business corporations.  Alito commented that an employer could not rely on its religious beliefs to  seek exemption from the race discrimination requirements of Title VII.  But we don’t know whether that comment implicitly relied on the status of race as a suspect classification under the Equal Protection Clause, or the fact that Title VII recognizes a bona fide occupational qualification defense in cases involving religion, national origin or sex discrimination but not in cases involving race or color.  Did Alito mean to suggest more broadly that the RFRA exemption would not extend to any discrimination claims?  Justice Ginsburg was concerned about this in her dissent when she cited the two gay-specific examples from prior case law.  She might well have also noted the Supreme Court’s decision in Boy Scouts of America v. Dale, where the majority found that the Boy Scouts’ 1st Amendment freedom of expression and association rights took priority over whatever interest the state of New Jersey had in forbidding public accommodations such as the Boy Scouts from discriminating based on sexual orientation.  What would the Supreme Court majority think about the relative weight of an executive order banning sexual orientation or gender identity discrimination as opposed to statutory protection for free exercise of religion in RFRA?  Statutes would logically outweigh executive orders when there is a conflict between the two.  Can a presidential executive order that is not effectuating a policy adopted by Congress (as the original 11246 was effectuating the policy of Title VII, albeit going beyond it by applying the non-discrimination requirement to businesses exempt from coverage under Title VII due to their size or the nature of their business) signify a compelling government interest, or does Congress have the sole authority to establish compelling government interests, since the President’s Executive Orders as a matter of law and custom are aimed at the internal policies of the Executive Branch?

When religious opponents of the LGBT executive order suggest that it is going to lead to litigation, they are not making empty threats.  It is likely that some contractor who loses or fails to obtain a contract because they will not comply on religious grounds with the non-discrimination requirement will go to court seeking injunctive relief, and the question will be squarely presented whether RFRA applies to the situation and whether a compelling state interest can be based on an executive order that is not effectuating a policy decision by Congress?

Other questions arise about the pending version of the Employment Non-Discrimination Act, approved last year by the Senate, which provides a rather broad religious exemption beyond the narrow exemption now found in Title VII, the ministerial exemption, or the Bush amendments to EO 11246.  In the wake of Hobby Lobby, one has to ask whether a narrower exemption, similar to that in Title VII, would survive challenge under RFRA?  Questions for which there are at present no firm answers…