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

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

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

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

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

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

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

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

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

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

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

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

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

9th Circuit Orders Withholding of Removal for Gay Man from Philippines

Posted on: July 25th, 2013 by Art Leonard No Comments

A unanimous panel of the U.S. 9th Circuit Court of Appeals, based in San Francisco, ruled on July 24 in Vitug v. Holder, 2013 Westlaw 3814772, that the Board of Immigration Appeals (BIA) should not have reversed a ruling by an Immigration Judge (IJ) that Dennis Vitug, a gay man from the Philippines, was entitled to remain in the United States under U.S. laws providing refuge for people subjected to persecution in their home countries.  The court backed up the Immigration Judge’s conclusion that Vitug had shown that he was subjected to persecution, and that the government failed to meet its burden to show that conditions in the Philippines had changed sufficiently to rebut the presumption that Vitug would suffer persecution if required to return.

Writing for the appellate panel, Judge Harry Pregerson pointed out that the IJ had found Vitug to be a credible witness and had concluded that Vitug had been beaten and robbed five times in Manila “after being targeted as a homosexual,” had been harassed by police officers based on his “perceived sexual orientation,” and had been unable to find a job “on account of his sexual orientation.”  The IJ had also found, based on the evidence Vitug presented, that (1) “The police will not do anything to help gay men who report abuse but will rather ridicule them and tell them they deserve it,” and (2) “The government has failed or refused to protect gay men from persecution.”

The IJ concluded that Vitug had been persecuted “because of his membership in the social group of homosexual Filipino men,” and that the government had not presented any contrary evidence.   The IJ also concluded that Vitug might be subjected to torture if deported back to the Philippines, finding him eligible for protection under the Convention Against Torture, an international treaty to which the U.S. is a party, which requires our country to give refuge to people who might be subjected to torture in their home country.

Under the rules governing administrative review, these IJ findings should not generally be reversible by the Board of Immigration Appeals, yet the government persuaded the BIA to reverse, based on the Board’s own view of the evidence.  (The BIA decision was issued on November 6, 2007, and is fairly representative of the kind of anti-gay bias exhibited by the BIA during the Bush Administration.)   “In reaching its decision,” wrote Judge Pregerson, “the BIA did not expressly find any of the IJ’s factual findings to be clearly erroneous.”  Instead, it predicated its reversal on its own review of the record, opining that Vitug had failed to prove that the attacks against him “rose to the level of past persecution,” that a particular attack against him by a man he met in a bar was merely a “crime of opportunity”, and that “the record does not support the conclusion that the [Philippine] government would be unable or unwilling to protect him,” because Vitug had actually returned to the Philippines after his first US visitor visa expired, then returned to the U.S. on a  new visitor visa, which he overstayed, finding work in the U.S.  Finally, the BIA found a lack of evidence in the record that Vitug would face torture in the Philippines.

Vitug filed a motion for reconsideration, but it was rejected by the BIA because it arrived one day after the filing deadline, due to a snowstorm and the grounding of FedEx planes, according to Pregerson’s opinion.  The BIA issued an amended order in February 2008 to correct a misstatement in its prior decision, and Vitug again filed for reconsideration, this time meeting the deadline, but the BIA denied his motion in a confused statement that the appeals court found to be internally contradictory.

The Court of Appeals found that the BIA had overstepped its role regarding the finding on persecution, pointing out that “DHS regulations prohibit the BIA from ‘engaging in de novo review of findings of fact determined by an immigration judge.'”  Wrote Pregerson, “We conclude that in its original November 6, 2007 decision, the BIA engaged in its own factfinding.  Such factfinding was improper.”  The court went through various aspects of the BIA opinion, pointing out places where it had obviously engaged in factfinding contrary to the facts found by the IJ, and had ignored “factual findings of the IJ that were key to the IJ’s holding,” which the court found to be an abuse of discretion.

Having found that the BIA “failed to apply the clear error standard of review to the IJ’s factual findings, and also abused its discretion by ignoring the factual findings of the IJ,” the court would normally remand the case so that BIA could apply the correct standard, but it found no need to do so here, “because substantial evidence does not support the BIA’s denial of withholding of removal.”

Pregerson pointed out that under immigration law, once a petitioner has established that he is a victim of past persecution based on one of the grounds recognized by the courts — which include, for this case, sexual orientation — there is a presumption of entitlement to the remedy of withholding of removal, which would allow the petitioner to remain in the United States.  The government can only prevail in such a case if it can “show by a preponderance of the evidence that there has been a fundamental change in circumstances such that the petitioner’s life or freedom would not be threatened or that the petitioner could relocate internally within his home country to avoid persecution.” 

In this case, wrote Pregerson, the government had failed to meet this burden.  The IJ found Vitug to be a credible witness, and accepted his testimony about the persecution he had suffered.  The government did not challenge this finding, and did not introduce any contradictory evidence.  Wrote Pregerson, “No reasonable factfinder could conclude that the harm Vitug suffered did not rise to the level of persecution in light of the cumulative effect of multiple instances of physical harm and victimization,” so he is presumptively entitled to stay in the U.S.  The only basis for the government’s argument to the contrary was some references in Vitug’s documentary evidence that there was some gay activism going on in the Philippines and that one municipality had passed a local ordinance to protect gays from discrimination.  “Such evidence, however, does not indicate that there is any less violence against gay men or that police have become more responsive to reports of antigay hate crimes,” wrote Pregerson.  “The government therefore failed to meet its burden of proof to show by a preponderance of the evidence that the circumstances within the Philippines have changed such that Vitug no longer faces a threat to his life or freedom in the Philippines.”

While the court agreed with the BIA that the IJ’s conclusion as to torture was not supported by the IJ’s factual findings and refused to upset the BIA’s reversal on the issue of Convention Against Torture relief, the court ordered the BIA to grant withholding of removal status to Vitug, ending any effort to deport him from the United States.

There is a certain irony about the case having taken so long to be considered by the 9th Circuit.  The IJ’s decision was issued in 2007, based on a hearing held in June of that year, which basically froze the factual record as of that date.  The BIA decisions came later in 2007 and early in 2008, and then Vitug appealed.  The sheer volume of asylum/withholding/CAT appeals is so great in many circuits — and especially in the 9th, which covers the entire west coast — that it may take many years until a panel of the court actually takes up the case for decision.  In this case, the court unusually scheduled a hearing, which was held on February 7, 2013, and was limited, of course, to Vitug’s argument that the BIA had improperly reversed the IJ based on the record compiled at the 2007 hearing.   It may be that conditions for gay people in the Philippines have improved since then — after all, six years have gone by and there have been some court rulings in the Philippines that have advanced gay rights — but that would be irrelevant, since the case must be decided based on the record made at the 2007 hearing.  Welcome to the surreal world of American administrative law, where time stands still!


Federal Court Addresses How to Charge Juries in Federal Hate Crimes Cases

Posted on: July 5th, 2013 by Art Leonard No Comments

U.S. District Judge Gregory F. Van Tatenhove (E.D. Ky.) recently conducted a trial of several members of the Jenkins family who were charge with kidnapping and beating Kevin Pennington, a gay man, because of his sexual orientation.  Two members of the family, women, had pled guilty to lesser charges of assisting in commission of the crimes, but Jason and Anthony Jenkins, who performed the physical assault on Pennington, went to trial, and the court had to determine how to charge the jury regarding the hate crime counts against them.  The jury convicted both men on the kidnaping and assault charges, but acquitted on the hate crime charge.  The judge imposed sentences late in June, issuing a written opinion on June 20 explaining how he determined the sentences.  See 2013 Westlaw 3158210.  Then on July 2, he issued another opinion, this time explaining his charge to the jury on the hate crime count. See 2013 Westlaw 3338650.  While such a district court opinion does not create a precedent binding on other courts, it may be very influential as the first published opinion to grapple with the sentencing issue in the context of an anti-gay hate crime charge.

“For the first time in the nation,” wrote Judge Tatenhove, “the government sought to hold defendants responsible for committing this crime “because of” one particular reason — the admitted sexual orientation of the victim.  Here, the victim is gay.  And at the end of many days of testimony, the jury decided that the government had failed to prove that these defendants committed that crime.”  Tatenhove had charged the jury that it could find the defendants guilty on the hate crime charge if the government proved beyond a reasonable doubt that Pennington’s sexual orientation was a “substantial motivating factor” in the crime, having rejected the government’s initial request for a charge requiring a finding that Pennington’s sexual orientation was “a motivating factor” and the defense’s argument that under case law concerning different statutes that use “because of” terminology, the government would have to show that Pennington’s sexual orientation was the sole motivating factor in order to win a conviction.

Tatenhove’s discussion of this is particularly timely because the Supreme Court issued a decision on June 24, 2013, Univ. of Texas Southwestern Medical Center v. Nassar, 2013 Westlaw 3155234, addressing this issue in the context of a retaliation claim under Title VII of the Civil Rights Act of 1964, which imposes liability on an employer for taking adverse action against an employee “because” the employee has filed a complaint of unlawful discrimination or participated in a proceeding under the Civil Rights Act.  

In Nassar, the Court held, following its earlier reasoning in Gross v. FBL Financial Services, 557 US 167 (2009), a case decided under the Age Discrimination in Employment Act (ADEA), that a plaintiff does not benefit from the “mixed-motive” amendment that Congress added to Title VII in 1991, when bringing an age discrimination or retaliation claim.  Under the mixed- motive approach, if an employee shows that the employer’s action was motivated by the employee’s protected status (race or color, sex, religion, national origin), the employer will be found to have violated the Act even though it has proved that there was also a non-discriminatory reason that would justify its action.  Such a case, involving “mixed motives,” would result in a limited remedy for the employee, since the employer had proved a non-discriminatory justification for its action, but the employer would be found to violate the Act nonetheless, as Congress decreed in its 1991 mixed-motive amendment.  The Court held in Nassar that the mixed-motive amendment applied only to status discrimination claims under Title VII, but not to retaliation claims, based on the Court’s strict construction of the wording of the amendment.  As noted above, the Court had previously ruled out the mixed-motive approach in age discrimination cases, finding that the mixed-motive amendment, by its terms, did not apply to cases arising under statutes other than Title VII of the Civil Rights Act.  Thus, it seems that a retaliation claim can succeed only if the plaintiff shows that the sole reason for the employer’s action was the employee’s protected activity of filing a discrimination charge, or, in an age discrimination case, that the plaintiff’s age was the sole reason for the employer’s challenged action.

Given this history, Tatenhove found, he could not accede to the government’s request to charge the jury that it could convict on the hate crime charge upon proof that Pennington’s sexual orientation was “a motivating factor” in the Jenkins’ decision to go after him.  He described existing cases concerning racially-motivated hate crimes, finding that the 6th Circuit had adopted a “substantial reason” charge in one case, McGee, relying on a prior decision by the 8th Circuit.  He also noted a district court decision in a hate crime case from Ohio involving religion, where the court instructed the jury using the phrase “significant motivating factor.”  Thus, it appeared that several courts dealing with hate crime cases involving other categories had not required that the prohibited ground be the “sole” reason why the defendant had attacked the victim.

But the court saw Gross as a problem, because the hate crimes law uses the same “because of” language as the ADEA.  “The Court recognized that Congress had utilized the ‘a motivating factor’ standard and the burden shifting framework in the Title VII context, but as no such amendment had been provided by Congress for the ADEA, the normal meaning of ‘because of’ should govern” in an ADEA case.  Thus, in Gross, the Supreme Court “concluded that, ‘under Sec. 623(a)(1), the plaintiff retains the burden of persuasion to establish that age was the ‘but-for’ cause of the employer’s adverse action.”  Tatenhove noted that recently the 6th Circuit had applied Gross to a case under the Americans With Disabilities Act, which uses similar “because of” language in its operative provision. 

The judge found the case law perplexing when focusing on how to charge the jury in the Jenkins case.  “So,” he wrote, “the phrase ‘because of’ has meant ‘a motivating factor,’ or ‘a substantial reason,’ or ‘a significant factor,’ or ‘solely because of,’ or the ‘but-for’ cause of.  Why?  It is not because Congress has clearly defined the phrase beyond the clear meaning of the words. Instead, where the line is drawn appears to rest on the predilections of a particular judge or court.  That is not how this is supposed to work.” 

He went on to describe the policy implications of picking one formulation as opposed to another.  He characterized the arguments between the prosecution and the defense in this case over the correct jury charge as having “the decided feel of a legislative mark-up session during a congressional session rather than a charge conference.  The words here, ‘because of’, must mean something concrete that is solid and unalterable from case to case to case.  Otherwise, as noted, the trial judge becomes a one person policy shop deciding, what?  How compelling the facts are of a particular case?  Whether justice requires that a person lose their liberty if they had just a trace of hate in their heart, or, on the other hand, acted solely because of that hate and for no other reason?  Whatever the strengths of the modern judiciary, we not only should not make such decisions, we are designed to be particularly bad at them.”  He also noted that an “expansive interpretation of the statutory language could certainly raise constitutional questions.”

He noted that during the argument over charging, the prosecution had changed its position, giving up the demand for “a motivating factor” and being willing to settle for something intermediate between that and the “but-for” language of Gross.  The government argued that the court was not required to treat Gross as binding merely because of the same wording in the two statutes, but instead “should rely heavily on legisaltive history to uncover the intent of Congress as to the appropriate standard for each statute.”  As to this, Congress clearly intended to expand the applicability of the hate crimes law, so, argued the prosecution, “a more narrow standard would be counter to this intent.”  The judge pointed out that the 6th Circuit, confronted by this kind of argument, had ultimately concluded that “in the end it is the text that matters.”  And, as to the legislative history of the hate crimes law, he said, “Congress never mentions that it seeks to expand the reach of sec. 245 by altering the meaning of the words ‘because of’ to lower the standard necessary to prove that element of the crime.”  Indeed, Congress never explicitly addressed the issue, so the “but-for” test looms as the one that must be used.

However, Tatenhove decided not to use the phrase “but-for” in his charge.  “Congress could not have meant for ‘because of’ to stand for the proposition that only when motivated by no other factors than sexual orientation should the law apply,” he asserted.  “That would fly in the face of common sense and what we know about human interaction.  But, as discussed above, unless somehow modified by Congress, the plain meaning of the words ‘because of’ must mean that the sexual orientation of the victim becomes a necessary prerequisite to the assault.  That is a status reserved only for the most substantial of the motivating factors.  There may be others of substance, but, in the final analysis, sexual orientation must be the factor that motivates the conduct — ‘the substantial faactor.’  Other courts will no doubt wrestle with this same issue, reach similar conclusions, and rest on different, and perhaps better, language to communicate the meaning of those conclusions.  That is the natural progression of the common law and the craft of being a judge.”

So Judge Tatenhove used “substantial motivating factor” in his jury charge, apparently believing that this met the “but-for” requirement of Gross but without imposing a “sole reason” test.  For example, if Pennington’s sexual orientation was a “substantial factor” in explaining why he was the victim of the Jenkins’ assault, but the jury had evidence that the Jenkins had some other gripe against Pennington having nothing directly to do with his sexual orientation but which played as much of a part in their reasons for going after him, then would the hate crimes law apply?  Would the prosecution have to show that the Jenkins’ would not have carried out their grudge against Pennington  in the form of an actual kidnapping assault if he was not gay, in order to win a conviction on the hate crimes count?

In this case, thus charged, the jury acquitted Jason and Anthony Jenkins of the hate crimes charge, while convicting on kidnapping and assault.  Did the charge give the jury pause and ultimately lead to acquittal on the hate crimes charge?  Without having seen all the evidence that the jury saw, one is not in a position to second-guess, but presumably the wording of charges does make a difference, or opposing counsel would not argue vociferously about them.  Is it possible that the jury charge sought by the prosecution would have led to a conviction based on the evidence presented?  Media accounts of the trial suggest that Pennington’s sexual orientation was very much a factor in making him a victim in this case.

Ultimately, however, the question is for Congress.  Is it satisfied with the Court’s decisions in Gross and Nassar?  If not, Congress should consider clarifying its intent.  One simple way would be to add an interpretive amendment to all statutes that use “because of” language, describing the standard of proof to be required for prosecutions or enforcement actions under the statutes.  The 1991 amendment to Title VII (Sec. 703(m)), could be amended to overrule Nassar and apply the mixed-motive test in all “because of” cases under Title VII, and could be imported into the ADEA and the ADA.  Similar language might be adopted as an amendment to the Hate Crimes Act.  And similar language should be considered for the pending Employment Non-Discrimination Act (ENDA), which will be receiving a mark-up hearing in the Senate on July 10.

International Court Rejects Discrimination Claims by Christians Who Won’t Serve Gays

Posted on: January 16th, 2013 by Art Leonard No Comments

The 4th Section chamber of the European Court of Human Rights has ruled that the United Kingdom is acting within the “margin of appreciation” under the European Convention on Human Rights in upholding the decisions by two employers to discharge employees who were unwilling to abide by the employers’ non-discrimination policies, which forbid sexual orientation discrimination. The employees in question, one governmental and one non-governmental, posed objections based on their Christian beliefs.

The 4th Section’s ruling will not be final until losing parties have an opportunity to seek further consideration from a larger body of judges. The decision is available on the court’s website under the title “Case of Eweida and Others v. The United Kingdom” (15 January 2013).

In the same decision, the Court also ruled on discrimination claims from two employees who claimed discrimination regarding their insistence on wearing a cross on a necklace chain at work. The Court held that British Airways should not have suspended a customer service representative over this issue, but that a health care organization could properly forbid an employee from wearing such a religious ornament on safety grounds.

In the first of the two gay-related cases, Lillian Ladele, employed by the London Borough of Islington as a registrar of vital records, encountered difficulty when the U.K. legislated to authorize civil partnerships for same-sex partners, that would be conducted in civil registry offices. Ms Ladele has religious objections to performing such ceremonies, and ultimately the Borough dismissed her, concluding that it would be inconsistent with the local government’s policy against discrimination to employ a registrar who would refuse to perform these ceremonies for same-sex couples. She brought her case to an Employment Tribunal, which ruled in her favor, but the local government authority appealed and won a reversal from the Employment Appeal Tribunal, which held that the local authority’s legitimate aim of providing registrar service on a non-discriminatory basis justified discharging an employee who was unwilling to provide such service. The Court of Appeal affirmed, finding that the local authority’s “laudable aim was to avoid, or at least, minimise, discrimination both among Islington’s employees, and as between Islington (and its employees) and those in the community they served.”

In the other case, Gary McFarlane, a retired “elder of a large multicultural church in Bristol,” was working as a counselor for Relate Foundation, which provides confidential sex therapy and relationship counseling to clients, under ethical principles established by the British Association for Sexual and Relationship Therapy. These principles forbid discrimination based on sexual orientation. McFarlane’s work as a counselor ended over his religiously-based reluctance to provide therapy to same-sex couples. The Employment Tribunal found that he had not been discharged due to his faith, as such, but because his expressed views indicated he would not be able to provide “the full range of services to all sections of the community, regardless of sexual orientation,” which the Tribunal found to be legitimate aim of the employer. The Appeal Tribunal upheld this ruling, and the Court of Appeal refused his application to appeal.

In all four cases, the Court of Human Rights faced the question whether the employees had raised a valid concern of either direct or indirect discrimination based on religion. In confronting this issue, the Court went beyond its prior precedents, according to press accounts of the ruling, to find that there was at least indirect discrimination that could implicate the Convention protection of religious liberty, but in the two gay-related cases as well as the hospital case, a majority of the panel concluded that either the discrimination was justified on practical grounds (the hospital case) or was within the “margin of appreciation” afforded by the Convention to contracting parties (i.e., countries party to the convention) who were in the position of having to balance contending Convention rights.

The Convention has been construed in past cases to ban sexual orientation discrimination as well as religious discrimination, which means that countries governed by the Convention can legitimately seek to ensure that LGBT citizens are not subjected to discrimination by entities such as government registry offices and private counseling services.

Under the court’s decision, a country’s statutory law or legal system would not necessarily be compelled to balance the rights in this way, as some commentators quickly pointed out. But the decisions by the Employment Appeals Tribunal and, in one case, the Court of Appeal, struck a balance that was deemed acceptable by the Court in allowing the employers in question to give more weight to the non-discrimination rights of clients than the religious objections of individual employees.

The decision in favor of the airline customer service worker led to the ruling being hailed in some British newspapers as a victory for religious freedom, although some of the same commentators inevitably saw the rulings against Ms. Lalede and Mr. McFarlane as a defeat for religious rights.

Interestingly, the Court’s opinion briefly summarizes foreign authority, noting that under Title VII of the U.S. Civil Rights Act of 1964, employers are required to make a “reasonable accommodation” to religious practices and beliefs of employees. But the court’s discussion of U.S. law seems focused entirely on the issue of wearing a cross, making no direct reference to U.S. cases concerning employees who object to providing services to LGBT customers. There has been a recent split of authority among U.S. courts on the question whether students in public university graduate degree counseling programs may be dismissed when their religious views get in the way of providing counseling to same-sex couples.