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Posts Tagged ‘same-sex marriage’

Nevada Supreme Court Holds Obergefell Requires Retroactive Recognition of Out-of-State Same-Sex Marriages (but Not Civil Unions) for Community Property Purposes

Posted on: December 31st, 2020 by Art Leonard No Comments

The Supreme Court of Nevada unanimously ruled on December 23 that the U.S. Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. 644 (2015), must be applied retroactively in determining the commencement date of the marital “community” for purposes of dividing assets in a divorce, but such constitutionally-demanded retroactivity extends only to marriages, not to civil unions.  LaFrance v. Cline, 2020 WL 7663476, 2020 Nev. Unpub. LEXIS 1209.

Mary Elizabeth LaFrance and Gail Cline, Nevada residents, went to Vermont to have a civil union ceremony in 2000, returning home to Nevada.  In 2003, when same-sex marriage became available in Canada, they went there and got married, then returned to their home in Nevada.  In 2014, they decided to break up their marriage and filed for judicial dissolution.  That was the year that a lawsuit brought marriage equality to Nevada, in Latta v. Otter, 771 F.3d 456 (9th Cir. 2014).  Nevada is a community property state, and it became necessary for the trial court to decide what property and assets were part of the “community” for purposes of division of assets.  Responding to LaFrance’s argument as of 2018 when the Clark County 8th Judicial District Court had to decide, Judge Mathew Harter concluded that pursuant to Obergefell he should find that the community came into effect when the parties entered into their civil union in 2000, and divided property accordingly.  LaFrance appealed, contending that for purposes of Nevada law, their marital community didn’t come into effect until the Latta decision in 2014.

The Nevada Supreme Court decided that both parties were incorrect.  Under Nevada law as of the time the petition for dissolution was filed, a civil union from Vermont could be recognized for these purposes but only if the parties had registered their civil union as a domestic partnership with the Nevada Secretary of State, and these women had not done so.  Thus, the court held in an opinion by Chief Justice Kristina Pickering, Judge Harter erred in dating the community from 2000.

On the other hand, the court ruled, the 2003 Canadian marriage should be deemed the date when the community was formed.  Even though it was not recognized in Nevada at that time, the court found that it must be retroactively recognized pursuant to Obergefell.

“In 2015, before the parties’ divorce was finalized, the United States Supreme Court decided Obergefell,” wrote Chief Justice Pickering.  “The Court in Obergefell held that ‘the right to marry is a fundamental right,’ and that each state must ‘recognize a lawful same-sex marriage performed in another State.’  Although the Supreme Court has not opined on the retroactive effects of its Obergefell holding, the Supreme Court has ‘recognized a general rule of retrospective effect for [its] constitutional decisions,’” citing Harper v. Virginia Department of Taxation, 509 U.S. 86, 94 (1993).  Since the parties’ divorce was not finalized until after Obergefell was decided, the court concluded that “the Supreme Court’s constitutional decision in Obergefell, requiring states to recognize same-sex marriages, applies retroactively to the parties’ 2003 Canadian marriage.”  Thus, 2003 is the commencement date for the marital community.

LaFrance protested that this was unfair, arguing that she and Cline had been operating all those years under the assumption that they did not have any legal rights as a couple in Nevada throughout the period of their Canadian marriage.  (Recall that Latta was not decided until the year they initiated their divorce proceedings, the year prior to Obergefell.)  No matter, said the court.  “Nevada must credit the parties’ marriage as having taken place in 2003 and apply the same terms and conditions as accorded to opposite-sex spouses.  These conditions include a presumption that any property acquired during the marriage is community property, NRS 123.220, and an opportunity for spouses to rebut this presumption by showing by clear and certain proof that specific property is separate.”

Thus, the property division issue was remanded to Judge Harter “to apply community property principles, including tracing, to the parties’ property acquired after their 2003 Canadian marriage.”

Justice Abbi Silver recused herself from the case voluntarily.  The version of the opinion issued on Westlaw and Lexis as of the end of December did not list counsel for the parties.

Supreme Court Lets Stand 7th Circuit Decision on Lesbian Spouses and Birth Certificates

Posted on: December 14th, 2020 by Art Leonard No Comments

The U.S. Supreme Court has refused to review a ruling by the 7th Circuit Court of Appeals in Henderson v. Box, 947 F.3d 482 (2020), that the state of Indiana must extend to married lesbian couples the same parentage presumption it applies to married different sex couples: that a birth mother’s spouse is presumed to be a parent of her child, that  the child be deemed born “in wedlock,” and that both mothers be named as parents on the birth certificat.  On December 14, the Supreme Court denied the State of Indiana’s petition to review that ruling without explanation or any dissent.  Box v. Henderson, 2020 WL 7327836 (Dec. 14, 2020).

On one hand, this action might be seen as routinely expected, because the Supreme Court decided a similar case from Arkansas exactly this way in 2017.  In Pavan v. Smith, 137 S. Ct. 2075, the Court voted 6-3 to reverse a decision by the Arkansas Supreme Court.  That opinion was issued per curiam, although a close reading would identify the hand of Justice Anthony M. Kennedy, Jr., author of the Court’s 2015 marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584, in which the Court not only said that same-sex couples have a constitutional right under the 14th Amendment to marry, but also that such marriages must be treated by the states as equal in every respect to the marriages of different sex couples.  In Obergefell, Justice Kennedy specifically mentioned listing on birth certificates as one of the incidents of legal marriage from which same-sex couples had previously been excluded.

Justice Neil Gorsuch wrote a dissenting opinion in Pavan, joined by Justices Samuel Alito and Clarence Thomas, arguing that the Obergefell ruling did not necessarily compel the conclusion stated by the Court and that the Court should have scheduled briefing and a full hearing on the question rather than issue a summary per curiam ruling.

Since Pavan was decided, Justice Kennedy has retired and Justice Ruth Bader Ginsburg has died, being replaced respectively by Justices Brett Kavanaugh and Amy Coney Barrett, both religious conservatives.  When Indiana filed its petition for review in the Henderson case last spring, Justice Ginsburg was still on the Court and the Pavan v. Smith majority was intact.  The same-sex couples who had filed the lawsuit, represented by the National Center for Lesbian Rights, did not even file an opposition, assuming the Court would dismiss the petition.  But with Justice Ginsburg’s death and replacement, the calculus had changed, as the Pavan 6-member majority had been reduced to a 4-member minority of the Court.  The Supreme Court then requested the plaintiffs to file a reply to Indiana’s petition for review, and the possibility appeared that the Supreme Court might take up the issue anew.

At the heart of Indiana’s case was the contention that the presumption that a husband is the father is reality-based in biology, and there is no such basis for a reality-based presumption for the wife of a woman who gives birth, although the 7th Circuit had observed that one of the lesbian couples in the case comprised two biological mothers, as the second mother had donated the egg that was gestated by the birth mother.

Be that as it may, Indiana, in common with other states, has never treated the father’s parental status as conclusive, since it could be rebutted by evidence that a different man was the biological father, and ultimately a birth certificate records legal parentage, not biological parentage, as in the new birth certificates that are issued upon a child’s adoption.  The trial court, and ultimately the 7th Circuit, related that Indiana relied on self-reporting by the mother in determining a man’s name to record on a birth certificate, and the form the birth mother is given asks for the name of the father, not explicitly the name of the biological father, making it likely that many men are named as fathers on birth certificates despite the lack of a biological tie to the child.

Ultimately, wrote the 7th Circuit, “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.”

By refusing to review this ruling, without any explanation or dissent by the conservative justices, the Supreme Court seems to have put the seal on this issue.  This is particularly reassuring in light of gratuituous comments by Justice Alito (joined by Justice Thomas) in a statement he issued when the Court refused to review former Kentucky county clerk Kim Davis’s petition to review an award of damages against her for refusing to issue marriage licenses to same-sex couples after the Obergefell decision was announced.  Davis v. Ermold, 2020 U.S. LEXIS 3709, 2020 WL 588157 (October 5). In Alito’s statement, and remarks he later delivered to a conservative public forum, Alito sharply criticized the Obergefell decision and suggested that the Court needed to “fix” the problems that ruling created for those with religious objections to same-sex marriage.  This focused renewed attention on the Henderson case and the possibility that the Court would take it and rule in a way that would detract from the equal legal status of same-sex marriages.  The decision not to take this case may represent an important bullet dodged for now.

Federal Court Bars Enforcement of Louisville Public Accommodations Ordinance Against A Wedding Photographer Who Opposes Marriage Equality

Posted on: August 16th, 2020 by Art Leonard No Comments

Justin Walker, recently confirmed by the Senate to be a judge of the U.S. Court of Appeals for the District of Columbia Circuit, completed some unfinished business on his docket as a U.S. District Judge in Louisville, Kentucky, by issuing an order on August 14 barring the Louisville Metro Human Relations Commission from enforcing the sexual orientation provision of the city’s public accommodation ordinance against a wedding photographer who does not want to photograph same-sex weddings and wants to be able to announce and explain her opposition on her website.  Chelsey Nelson Photography LLC v. Louisville/Jefferson County Metro Gov’t, 2020 U.S. Dist. LEXIS 146246 (W.D. Ky, Aug. 14, 2020).

In 1999, Louisville became the first municipality in Kentucky to ban anti-gay discrimination.  Among other things, the ordinance prohibits businesses from denying goods or services because of the sexual orientation of a patron, or to communicate to the public that it will refuse such services or treat people as unwelcome because of their sexual orientation.  The Commission concedes in this case that a photographer’s refusal to photograph same-sex weddings would violate the ordinance, and has not “disavowed” any intention to prosecute such an action.

Chelsey Nelson is a photographer whose business includes weddings.  Although she has not been asked to photograph any same-sex weddings, she claims that her religious beliefs would compel her to refuse such business, and she would like to avoid such confrontations by being able to advertise on her website that she will not provide such service.  Represented by Alliance Defending Freedom, the anti-gay litigation group, she filed a lawsuit seeking a court order that she is not required to comply with the ordinance and can publish her views without fear of liability.  She claims that the existence of the ordinance has chilled her ability to exercise her constitutional freedom of speech and free exercise of religion rights under the First Amendment by deterring her from using her website to communicate this message.

Judge Walker is a family friend and protégé of Senator Mitch McConnell, who recommended his appointment to President Trump and has shepherded his nomination through two rounds of Senate confirmation votes.  Walker is a leader of the conservative Federalist Society branch in Louisville, where he worked as a lawyer and law professor before taking the bench.  Thus, his decision to deny the city’s motion to dismiss the case in large part, as well as his decision to grant in part Nelson’s motion for preliminary relief pending an ultimate trial of the merits (presumably before a different district judge as Walker leaves for Washington), is not surprising.

What may be surprising, however, is some of the gay-friendly language that permeates his decision.  Assuming the sincerity of what he has written, the youthful Walker (born 1982) is part of a generation of young conservatives who have generally accepted gay rights.  He begins his decision praising the activists who campaigned for many years to get the Louisville ordinance passed, and comments that our society is “better” for prohibiting anti-gay discrimination.

Finding that the plaintiff has a good chance of prevailing on the merits of her claim is a prerequisite for ordering preliminary injunctive relief against enforcement of a law that, on its face, is not unconstitutional.  Walker premises his conclusion that Nelson meets this test by reference to the Supreme Court’s unanimous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, in which the Court held that the organizers of the Boston St. Patrick’s Day parade were not required to allow a gay Irish-American group to march under their own banner if the parade organizers did not want to include a gay rights message in their parade.  The Massachusetts Supreme Judicial Court had ruled by 4-3 that Massachusetts’ public accommodations law, which prohibited sexual orientation discrimination, required the parade organizers to let the gay group march.

In reversing, the Supreme Court found that the parade was an expressive activity protected by the First Amendment’s freedom of speech provision.  The Court held that forcing the organizers to include the gay group would be unconstitutional compelled speech, imposing the gay group’s message on the parade organizer’s expressive activity.

In this case, Judge Walker embraced the analogy to requiring a photographer to take pictures she did not want to take as compelled speech, and that the provision making it unlawful for her to publicize her refusal to photograph same-sex weddings was a content-based restriction on her speech.  Because her speech was motivated by her religious beliefs, the constitutional problem was compounded, in Judge Walker’s view.  And he noted that the Supreme Court has found that government-compelled speech and punishment of religious expression impose irreparable injury, another test for preliminary relief.

Court decisions on this issue are divided.  In 2013, New Mexico’s Supreme Court found that a wedding photographer violated the state’s public accommodation law by refusing to photograph a same-sex commitment ceremony, and the Supreme Court of the United States denied a petition to review that case.

But more recently the 8th Circuit Court of Appeals ruled in favor of a videographer who did not want to film same-sex weddings, and the Arizona Supreme Court ruled that a custom stationer did not have to create invitations for a same-sex wedding, both relying on First Amendment free speech rights.  What the more recent cases have in common is that they are part of a broader litigation strategy by Alliance Defending Freedom and other conservative litigation groups, which having lost the battle against marriage equality, seek to establish broad constitutional exemptions for religious opponents of marriage equality from having to comply with anti-discrimination laws.  These are “affirmative litigation” cases brought to challenge the application of the law.  They do not involve actual denials of service to particular individuals, unlike the famous Masterpiece Cakeshop case, or similar cases in other jurisdictions where same-sex couples have filed discrimination claims after being denied goods or services.

The municipal defendants in this case could seek to appeal the grant of injunctive relief to the 6th Circuit Court of Appeals (in Cincinnati), or could decided to await a final ruling on the merits before instituting an appeal.  At this point, local media coverage of the case has undoubtedly solved Chelsey Nelson’s problem of communicating her stance to the public, so it seems unlikely that any same-sex couples planning their weddings in Louisville are going to approach her for service.  The injunction specifically protects her from being investigated by the Louisville Commission, but does not prevent the Commission from enforcing the ordinance against any other business that is actually violating the anti-discrimination ban, so there is no pressing urgency for an appeal.

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.

Catholic Foster Care Agency Seeks Supreme Court Review of Exclusion from Philadelphia Program

Posted on: July 24th, 2019 by Art Leonard No Comments

Catholic Social Services (CSS), a religious foster care agency operated by the Archdiocese of Philadelphia, has asked the U.S. Supreme Court to overrule a decision by the U.S. Court of Appeals for the 3rd Circuit, which on April 22 rejected CSS’s claim that it enjoys a constitutional religious freedom right to continue functioning as a foster care agency by contract with the City of Philadelphia while maintaining a policy that it will not provide its services to married same-sex couples seeking to be foster parents.  The decision below is Fulton v. City of Philadelphia, 922 F.3d 140 (3rd Cir. 2019).

CSS and several of its clients sued the City when the agency was told that if it would not drop its policy, it would be disqualified from certifying potential foster parents whom it deemed qualified to the Family Court for foster care placements and its contract with the City would not be renewed.  CSS insists that the City’s Fair Practices Ordinance, which prohibits discrimination because of sexual orientation by public accommodations, does not apply to it, and that it is entitled under the 1st Amendment’s Free Exercise Clause to maintain its religiously-based policy without forfeiting its longstanding role within the City’s foster care system.

The Petition filed with the Clerk of the Court on July 22 is one of a small stream of petitions the Court has received in the aftermath of its June 26, 2015, marriage equality decision, Obergefell v. Hodges, 135 S. Ct. 2584, in which the Court held that same-sex couples have a right to marry and have their marriages recognized by the states under the 14th Amendment’s Due Process and Equal Protection Clauses.   Dissenters in that 5-4 case predicted that the ruling would lead to clashes based on religious objections to same-sex marriage.  Most of those cases have involved small businesses that refuse to provide their goods or services for same-sex weddings, such as the Masterpiece Cakeshop decision from last spring, 138 S. Ct. 1719 (2018).

This new petition is one of many that may end up at the Court as a result of clashes between local governments that ban sexual orientation discrimination and government contractors who insist that they must discriminate against same-sex couples for religious reasons.  Catholic foster care and adoption services have actually closed down in several cities rather than agree to drop their policies against providing services to same-sex couples. CSS argues that it will suffer the same fate, since the services it provides – screening applicants through home studies, assisting in matching children with foster parents, and providing support financially and logistically to its foster families through funding provided by the City – can only legally be provided by an agency that has a contract with the City, and that even as its current contract plays out, the refusal of the City to accept any more of its referrals has resulted in its active roster of foster placements dropping by half in a short period of time, requiring laying off part of its staff.

Desperate to keep the program running, CSS went to federal district court seeking preliminary injunctive relief while the case is litigated, but it was turned down at every stage.  Last summer, when the 3rd Circuit denied a motion to overturn the district court’s denial of preliminary relief, CSS applied to the Supreme Court for “injunctive relief pending appeal,” which was denied on August 30, with the Court noting that Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have granted the Application.  See 139 S. Ct. 49 (2018). That at least three justices would have provided interim relief suggests that CSS’s Petition for review may be granted, since the Court grants review on the vote of four justices, and Brett Kavanaugh, who was not on the Court last August, might provide the fourth vote.

According to its Petition, CSS dates from 1917, when the City of Philadelphia was not even involved in screening and licensing foster parents.  CSS claims that from 1917 until the start of this lawsuit, it had never been approached by a same-sex couple seeking to be certified as prospective foster parents.  CSS argues that as there are thirty different agencies in Philadelphia with City contract to provide this service, same-sex couples seeking to be foster parents have numerous alternatives and if any were to approach CSS, they would be promptly referred to another agency.  CSS argues that referrals of applicants among agencies are a common and frequent practice, not a sign of discrimination.

CSS has three different arguments seeking to attract the Court’s attention.  One is that it was singled out due to official hostility to its religiously-motivated policy and that the City’s introduction of a requirement that foster agencies affirmatively agree to provide services to same-sex couples was inappropriately adopted specifically to target CSS.  Another is that the 3rd Circuit misapplied Supreme Court precedents to find that the City’s policy was a “neutral law of general application” under the 1990 Supreme Court precedent of Employment Division v. Smith, 494 U.S. 872 (1990), and thus not subject to serious constitutional challenge.  Finally, CSS argues, the Smith precedent has given rise to confusion and disagreement among the lower federal courts and should be reconsidered by the Supreme Court.

Opponents of same-sex marriage have been urging the Court to reconsider Smith, which was a controversial decision from the outset.  In Smith, the Supreme Court rejected a challenge to the Oregon Unemployment System’s refusal to provide benefits to an employee who was discharged for flunking a drug test. The employee, a native American, had used peyote in a religious ceremony, and claimed the denial violated his 1st Amendment rights.  The Court disagreed, in an opinion by Justice Antonin Scalia, holding that state laws that are neutral regarding religion and of general application could be enforced even though they incidentally burdened somebody’s religious practices.  Last year, Justice Neil Gorsuch’s opinion, concurring in part and dissenting in part in Masterpiece Cakeshop, suggested reconsideration of Smith, and since the Masterpiece ruling, other Petitions have asked the Court to reconsider Smith, including the “Sweetcakes by Melissa” wedding cake case from Oregon.  So far, the Court has not committed itself to such reconsideration.  In the Sweetcakes case, it vacated an Oregon appellate ruling against the recalcitrant baker and sent the case back to the state court for “further consideration” in light of the Masterpiece Cakeshop ruling, but said nothing about reconsidering Smith.

The CSS lawsuit arose when a local newspaper, the Philadelphia Inquirer, published an article reporting that CSS would not provide foster care services for same-sex couples.  The article sparked a City Council resolution calling for an investigation into CSS.  Then the Mayor asked the Commission on Human Relations (CHR), which enforces the City’s Fair Practices Ordinance (FPO), and the Department of Human Services (DHS), which contracts with foster care agencies, to investigate.  The head of DHS, reacting to the article’s report about religious objections to serving same-sex couples, did not investigate the policies of the many secular foster care agencies.  She contact religious agencies, and in the end, only CSS insisted that it could not provide services to same-sex couples, but would refer them to other agencies.

After correspondence back and forth and some face to face meetings between Department and CSS officials, DHS “cut off CSS’s foster care referrals,” which meant that “no new foster children could be placed with any foster parents certified by CSS.”  DHS wrote CSS that its practice violated the FPO, and that unless it changed its practice, its annual contract with the City would not be renewed. This meant that not only would it receive no referrals, but payments would be suspended upon expiration of the current contract, and CSS could no longer continue its foster care operation.  CSS and several women who had been certified by CSS as foster parents then filed suit seeking a preliminary injunction to keep the program going, which they were denied.

CSS’s Petition is artfully fashioned to persuade the Court that the 3rd Circuit’s approach in this case, while consistent with cases from the 9th Circuit, is out of sync with the approach of several other circuit courts in deciding whether a government policy is shielded from 1st Amendment attack under Smith.  Furthermore, it emphasizes the differing approaches of lower federal courts in determining how Smith applies to the cases before them.  The Supreme Court’s interest in taking a case crucially depends on persuading the Court that there is an urgent need to resolve lower court conflicts so that there is a unified approach throughout the country to the interpretation and application of constitutional rights.

The Petition names as Respondents the City of Philadelphia, DHS, CHR, and Support Center for Child Advocates and Philadelphia Family Pride, who were defendant-intervenors in the lower courts.  Once the Clerk has placed the Petition on the Court’s docket, the respondents have thirty days to file responding briefs, although respondents frequently request and receive extensions of time, especially over the summer when the Court is not in session.  Once all responses are in, the case will be distributed to the Justices’ chambers and placed on the agenda for a conference.  The Court’s first conference for the new Term will be on October 1.

Last summer, when the Court was considering Petitions on cases involving whether Title VII of the Civil Rights Act forbids sexual orientation or gender identity discrimination, the U.S. Solicitor General received numerous extensions of time to respond to the Petitions, so those cases were not actually conferenced until the middle of the Term and review was not granted until April 22.  Those cases will be argued on October 8, the second hearing date of the Court’s new Term.

The Petitioners are represented by attorneys from The Becket Fund for Religious Liberty, a conservative religiously-oriented litigation group that advocates for broad rights of free exercise of religion, and local Philadelphia attorneys Nicholas M. Centrella and Conrad O’Brien.  Their framing of this case is reflected in the headline of their press release announcing the Petition: “Philly foster mothers ask Supreme Court to protect foster kids.”

Municipal respondents are represented by Philadelphia’s City Law Department.  Attorneys from the ACLU represented the Intervenors, who were backing up the City’s position, in the lower courts.

The 3rd Circuit was flooded with amicus briefs from religious freedom groups (on both sides of the issues), separation of church and state groups, LGBT rights and civil liberties groups, and government officials.  One brief in support of CSS’s position was filed by numerous Republican members of Congress; another by attorney generals of several conservative states.  The wide range and number of amicus briefs filed in the 3rd Circuit suggests that the Supreme Court will be hearing from many of these groups as well, which may influence the Court to conclude that the matter is sufficiently important to justify Supreme Court consideration.

Supreme Court Grants Certiorari in Oregon Wedding Cake Case, but Remands for “Further Consideration” in Light of Masterpiece Cakeshop

Posted on: June 17th, 2019 by Art Leonard No Comments

The U.S. Supreme Court granted a petition for a writ of certiorari in Klein v. Oregon Bureau of Labor and Industries, No. 18-547, on June 17, but at the same time vacated the Oregon Court of Appeals decision in the case, 289 Or. App. 507 (Dec. 28, 2017), and remanded the case to that court for “further consideration” in light of the Court’s decision last year in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).  The Court did not issue any explanation for its ruling, beyond the direction of “further consideration” specifying Masterpiece Cakeshop as the ground for such consideration.

Both cases involved the question whether a baker who refuses to make a wedding cake for a same-sex couple has a federal constitutional defense to a discrimination charge in the state administrative and judicial fora.  In both Oregon and Colorado, state law forbids discrimination because of sexual orientation in places of public accommodation, and businesses selling wedding cakes are definitely public accommodations under both laws.  Without ruling directly on the question presented in Masterpiece, the Supreme Court last year vacated the Colorado Court of Appeals and Colorado Commission rulings based on the Court’s conclusion that the Commission forum was “hostile to religion” as evidenced by statements by two of the Commissioners and “inconsistent” action on a religious discrimination charge by a provocateur who sought unsuccessfully to order anti-gay cakes from other bakers.

It takes at least four votes on the Supreme Court to grant a writ of certiorari, but it takes at least five votes to vacate and remand a lower court ruling.  According to its usual practice, the Court did not specify how many justices voted for the cert grant or the “vacate and remand” order.

The issue on remand for the Oregon Court of Appeals appears to be whether some statements made by Brad Avakian, Commissioner of the Oregon Bureau of Labor and Industry (BOLI), evinced the kind of hostility to religion that the Supreme Court identified as problematic in the Masterpiece case.

When Melissa Klein, proprietor of Sweetcakes by Melissa, rejected a wedding cake order from Rachel and Lauren Bowman-Cryer on religious grounds, the women filed complaints with the Oregon Department of Justice and the Bureau of Labor and Industries. The media found the case newsworthy, resulting in interviews with Melissa Klein and her husband in which they sought to justify their action on religious grounds.  Commissioner Avakian reacted to the ensuing controversy by posting a statement to his Facebook page and speaking with The Oregonian, a wide-read newspaper in the state.

Avakian’s Facebook post included a link to a television station’s news story about the refusal of service and a statement: “Everyone has a right to their religious beliefs, but that doesn’t mean they can disobey laws that are already in place.  Having one set of rules for everybody ensures that people are treated fairly as they go about their daily lives.”  The Oregonian subsequently quoted Avakian as saying that “everyone is entitled to their own beliefs, but that doesn’t mean that folks have the right to discriminate.”

Under BOLI’s procedures, an administrative law judge (ALJ) holds a hearing and issues a “proposed final order,” to which the parties can file “exceptions” as an appeal to the Commissioner.  Before the hearing in this case, the Kleins moved to disqualify Commissioner Avakian from taking any role in the case, arguing that his public statements had prejudged the case so he was not neutral.  The ALJ denied the motion to disqualify and went on to find that the Kleins had violated the statute by denying services to the couple “on account of” their sexual orientation, as prohibited by the statute.  The ALJ rejected the Kleins argument that they had not discriminated because of the women’s sexual orientation, or that their actions were protected by the First Amendment free speech and free exercise of religion provisions.  But the ALJ also rejected BOLI’s argument that statements made by Mr. Klein during interviews were communicating a future intent to discriminate, which would itself violate a specific prohibition in the statute. Rather, the ALJ ruled, they were an account of the reasons for their denial of services in this case.  The ALJ ordered damages to the couple totaling $135,000, mainly for emotional suffering and having to put up with the media attention.

The Kleins and BOLI both filed exceptions to the ALJ’s proposed order. Commissioner Avakian affirmed the ALJ’s ruling on discrimination, but disagreed with the ruling on statement of future intent to discriminate.  Avakian concluded that the record supported the opposite finding, that the interviews and a sign taped to the bakery’s window communicated intent to discriminate on the same basis in the future, but he approved the ALJ’s proposed damage award without adding anything for this additional violation.  The Kleins then petitioned for judicial review.

The Oregon Court of Appeals affirmed the ALJ’s decision on discrimination, but rejected Commissioner Avakian’s reversal of the ALJ’s ruling on communicating an intention to discriminate in the future.  The court also rejected the Kleins’ argument on appeal that Avakian should have been disqualified from ruling on the case because of his Facebook and Oregonian interview statements. As to another flashpoint in the case, the court deemed the amount of damages awarded appropriate, noting that the amount was in line with damages awarded in other similar cases.  The Kleins sought review in the Oregon Supreme Court, but were turned down without comment.

The Kleins’ petition for certiorari to the U.S. Supreme Court mentions the issue of Avakian’s statements and the ALJ and Oregon court’s rejections of disqualification, but it does not focus on that issue in its statement of questions presented, even though the petition was filed months after the Supreme Court’s ruling in Masterpiece Cakeshop made that a potentially viable alternative route to getting the agency’s decision overturned.  Counsel for the Kleins, instead, were focused on getting the Supreme Court to reconsider its 1990 ruling, Employment Division v. Smith, 494 U.S. 872, in which the Court abandoned its long-established free exercise clause jurisprudence, substituting a rule that people have to comply with neutral state laws of general application – such as most anti-discrimination laws – even though complying might burden their free exercise of religion.   Their second “question presented” asked the Court to overrule Smith, and their third “question presented” asked the Court to “reaffirm” a “hybrid rights doctrine” suggested in dicta in Smith, where there would be more stringent judicial review in cases where other constitutional rights in addition to free exercise of religion were implicated.

The Supreme Court’s decision to vacate the Oregon Court of Appeals decision for “further consideration” by the state court suggests that there are not enough votes on the Court to reconsider Smith as of now, but we can’t know how many votes short the proponents on the Court of reconsidering Smith might be.  Smith has long been a controversial precedent.  The decision’s cutback on protection for religious objectors led Congress to pass the Religious Freedom Restoration Act and many states to pass their own versions of that law.  But Smith has become a bulwark for vindicating the rights of same-sex couples to obtain wedding-related goods and services, as most courts confronted with the issue have concluded that such businesses do not have the right to deny them to same-sex couples.

The Kleins are represented by First Liberty Institute of Plano, Texas, Boyden Gray & Associates of Washington, D.C., and Oregon local counsel Herbert G. Grey.  Ten amicus briefs, all urging the Court to grant the petition for certiorari, were filed by conservative and religious litigation and policy groups, many extolling the case as a vehicle for overturning Employment Division v. Smith.  Lambda Legal represented Rachel and Laurel Bowman-Cryer with an amicus brief at the Oregon Court of Appeals.

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.

 

Supreme Court May Decide Another Gay Wedding Cake Case

Posted on: October 26th, 2018 by Art Leonard No Comments

Melissa and Aaron Klein, proprietors of the now-defunct “Sweetcakes by Melissa” custom-cake business in Gresham, Oregon, filed a petition for certiorari on October 19, asking the U.S. Supreme Court to strike down the $135,000 penalty imposed by Oregon authorities for their refusal to make a wedding cake for Rachel Cryer and Laurel Bowman in January 2013. Klein v. Oregon Bureau of Labor and Industries, No. ____ , seeking review of Klein v. Oregon Bureau of Labor and Industries, 410 P.3d 1051, 289 Or. App. 507 (2017), rev. denied by Oregon Supreme Court, June 21, 2018.  The Kleins claim in their Petition that the Oregon ruling violates their constitutional rights of free exercise of religion and freedom of speech.

The Kleins also claim that they did not discriminate against the lesbian couple because of their sexual orientation, contrary to the finding of the Commission that was affirmed by the state appeals court. And, perhaps most consequentially, they asked the Supreme Court to consider whether to overrule Employment Division v. Smith, 494 U.S. 872, which holds that the Free Exercise Clause does not exempt people with religious objections from complying with state laws of general application that do not specifically target religious practices.

The Kleins ask the Court to revisit a controversy it confronted last year in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).  Both Oregon and Colorado forbid businesses in the state from discriminating against customers because of their sexual orientation.  In Masterpiece, baker Jack Phillips refused, initially on religious grounds, to make a wedding cake for a gay male couple, and Colorado officials found that he had violated the law, rejecting his First Amendment defense.  In his appeal of the Colorado Court of Appeals’ ruling affirming the Commission, Phillips asserted protection under both the Free Exercise and Free Speech Clauses of the First Amendment, claiming that the government may not compel a “cake artist” to express a message contrary to his religious beliefs, both as a matter of freedom not to speak and protection for religious freedom.

The Court did not rule directly on these questions in disposing of Phillips’ appeal, instead deciding that comments by some of the Colorado Civil Rights Commissioners, and the Commission’s rejection of some other discrimination claims filed by a provocateur who charged bakers with discriminating against him by refusing to make explicitly anti-gay cakes, showed that the state had not afforded an appropriately “neutral forum” to Phillips for consideration of his defense. On that basis, the Court reversed the state court and commission rulings and dismissed the case against Phillips.  However, in his opinion for the Court, Justice Anthony Kennedy reaffirmed that people and businesses do not enjoy a general free exercise right to refuse to comply with state laws of general application that do not specifically target religion.  Kennedy’s opinion avoided dealing with Phillips’ argument that as a “cake artist” he also had a valid free speech claim.  Two justices dissented, while others concurred in the result.

Justice Kennedy cited Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), to support the Free Exercise point.  In that case, a restaurant owner cited his religious beliefs to refuse to comply with Title II of the Civil Rights Act of 1964, which forbids businesses affecting commerce from refusing to serve customers because of their race.  The Supreme Court affirmed the 4th Circuit, which had reversed the district court’s refusal to enjoin the restaurant’s discriminatory policy.  Kennedy could have just as well cited Employment Division v. Smith, which the Colorado Commission’s Administrative Law Judge had cited in his Masterpiece ruling, but Piggie Park may have seemed more apposite, as it involved enforcement of a general anti-discrimination law over religious objections. Smith, by contrast, involved a Native American man who had consumed peyote in a religious ritual and subsequently flunked his employer’s drug test, suffering discharge and denial of unemployment benefits.  The Supreme Court rejected Smith’s religious freedom challenge to his disqualification for benefits, finding that the incidental burden this posed on his free exercise of religion did not excuse him from complying with his employer’s lawful policy against employee drug use or require that an exception be made to the state’s unemployment insurance law, which denies benefits to employees discharged “for cause.” In a concurring opinion in Masterpiece Cakeshop, Justice Neil Gorsuch (joined by Justice Clarence Thomas) described the Smith ruling as “controversial,” implying that it deserved reconsideration.

The Kleins have followed up on Gorsuch’s signal by asking the Court to reconsider Smith or, alternatively, to “reaffirm” some comments Justice Antonin Scalia made in his opinion for the 5-4 Court majority in Smith, suggesting that when somebody raises a free exercise of religion claim in a case that also implicates “other fundamental rights,” such as freedom of speech, the Court should apply “strict scrutiny” to the challenged state action in order to vindicate the other fundamental right.  The Klein’s Petition points out that lower federal courts are divided about whether to follow Scalia’s suggestion for handling so-called “hybrid rights” cases – a suggestion the Oregon Court of Appeals expressly rejected in the Kleins’ case — and urges the Court to resolve a split of lower court authority by taking this case.

The Klein’s Petition also argues that they did not discriminate against Cryer and Bowman because of their sexual orientation; they would refuse to make a cake for a same-sex wedding regardless of the sexual orientation of the customer who sought this service. They related that just a few years earlier, they had produced a wedding cake ordered by this very lesbian couple, to celebrate the marriage of Rachel’s mother to a man, and that it was because Rachel and Laurel “liked the Kleins’ work so much that they wanted to commission a custom cake from Sweetcakes for their own wedding.”  The Petition also notes that the women quickly found another baker to make their wedding cake, and that a celebrity chef even gave them a second custom-designed cake for free.

On the other hand, it was reported that when the Kleins posted about the discrimination claim on their Facebook.com page, showing the image of the actual discrimination charge with contact information for the lesbian couple, the women received nasty messages, including death threats, which contributed to the Oregon Bureau’s decision to assess substantial damages for emotional distress.

The Kleins devote a large part of their Petition to arguing that they are “cake artists” whose creations are expressive works, entitling them to the same vigorous constitutional free speech protection normally provided to artists in less digestible media. As such, they claim the Oregon court erred in failing to apply strict scrutiny to the Bureau’s decision against them, as the Supreme Court has repeatedly held that the First Amendment protects an individual’s refusal to speak a message with which they disagree, the prime example being the Court’s unanimous decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in which, overruling a 4-3 decision by the Massachusetts Supreme Judicial Court, the Court held that parade organizers had a right to exclude a group whose message they did not desire to include in their parade, which the Court deemed to be a “quintessential expressive association.”  Whether the Court is willing to deem baking a wedding cake the free speech equivalent of staging a parade with thousands of people on a state holiday is an interesting question.

If the Court grants the Petition, the most consequential issue could be the Kleins’ challenge to Employment Division v. Smith, in which the Court cast aside decades of First Amendment precedent to hold that general laws that place a heavy burden on somebody’s free exercise of religion must generally be obeyed nonetheless.  Under prior rulings, the government had the heavy burden of meeting the “compelling government interest” test in order to justify applying a general law that incidentally but substantially burdened somebody’s free exercise of religion.

Justice Gorsuch was correct in calling Smith a “controversial” decision. Congress was so incensed by Justice Scalia’s opinion (which drew dissents from liberal members of the Court) that a bipartisan coalition soon passed the first version of the Religious Freedom Restoration Act (RFRA), introduced by Chuck Schumer (House) and Ted Kennedy (Senate) and eagerly signed into law by Bill Clinton in 1993.  RFRA provided that any law imposing a substantial burden on somebody’s free exercise of religion could be challenged using the strict scrutiny standard.  The Supreme Court subsequently ruled that Congress did not have authority to overrule the Court’s constitutional ruling, but the Court later upheld a revised version of RFRA that applied only to federal laws that burden religious free exercise, holding that Congress could create a legislative exception to federal laws when they incidentally impose a substantial burden on religious exercise.  Federal RFRA provided the example for more than twenty states to pass their own versions, similarly restricting the application of their state and local laws.  State court decisions in several other states have interpreted their state constitutional religious freedom provisions to the same effect, rejecting the Supreme Court’s narrower interpretation of Free Exercise in Smith.

If the Supreme Court were to overrule Smith and restore the previous precedents, RFRA and its state counterparts would be rendered superfluous, as the First Amendment would once more restrict states from enforcing general laws that substantially burden a person or business’s free exercise of religion in the absence of a compelling state interest.  The impact on LGBT rights could be enormous, prompting new claims that application of anti-discrimination laws to people and businesses with religious objections to LGBT people violates the businesses’ constitutional rights – one of the claims the Kleins are pursuing in this case.

Oregon state officials have thirty days to file a response to the Petition, and Petitioners can file a Reply to the Response, which means that the Supreme Court’s file in the case will not be completed for consideration by the Court until at least early December and maybe longer if the Oregon Attorney General’s Office requests an extension of time to respond. But if the petition is granted in December, that would leave plenty of time for the Court to hear arguments and render a decision during its current term, which runs through the end of June.