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2nd Circuit Court of Appeals Revives Religious Adoption Agency’s Challenge to New York Anti-Discrimination Rule

Posted on: July 22nd, 2020 by Art Leonard No Comments

The U.S. Court of Appeals for the 2nd Circuit, based in New York, has revived a Syracuse religious adoption agency’s constitutional challenge to the New York Office of Children and Family Service (OCFS) regulation prohibiting discrimination because of marital status or sexual orientation by adoption agencies. New Hope insists, based on its religious principles, that it cannot provide adoption services to unmarried people or same-sex couples.  OCFS threatened to terminate New Hope’s status as an approved agency if it does not comply.  New Hope Family Services, Inc. v. Poole, 2020 WL 4118201, 2020 U.S. App. LEXIS 22630 (2nd Cir., July 21, 2020).

New Hope Family Services has been an approved adoption service provider for more than fifty years and estimates that it has placed more than 1,000 children for adoption.  Although it is not affiliated with any church or formal religious movement, it identifies as a Christian agency, requires its employees to subscribe to articles of faith, and will not, consistent with its belief that children are best served in a “Biblical” family constructed of a husband, wife and child, screen potential adoptive parents who do not conform with this model.  New Hope alleges that if single people or same-sex couples seek its services, it would refer them to another agency that is willing to provide the services.  Thus, it claims, nobody is ultimately denied the ability to adopt a child based on their marital status or sexual orientation, and it has not received inquiries from same-sex couples seeking its services.

Under New York law, only agencies “authorized” by the state may provide adoption services, which include evaluating potential adoptive parents, matching them with children needing placements, supervising placements, and preparing reports to the court that will ultimately decide whether to approve an adoption.  State law and regulations set out detailed criteria concerning who may adopt a child and the factors that an approved agency, such as New Hope, are supposed to consider in determining whether it would be in the best interest of a child to be adopted by a particular person or couple.

Although adoption was traditionally limited to married couples, over the years the legislature amended the law to widen the scope of individuals who are permitted to adopt. In 2010, the adoption law was amended to state that an “adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together may adopt another person.”  The amendment was intended to reflect court decisions that had allowed the same-sex partners of parents to adopt their children, some going the next step by allowing same-sex couples to adopt.  As of 2010, same-sex couples could not legally marry in New York, but the courts had begun to recognize same-sex marriages performed in other jurisdictions, including Canada and several states. When Governor David Paterson signed the bill into law, he stated that the law would not require any agency to change its current practices, since it was “permissive,” not mandatory.

The adoption statute authorizes OCFS to adopt regulations to implement the law.  In 2011, after the new statutory provision went into effect, OCFS adopted a regulation providing that an applicant to adopt children could not be rejected “solely on the basis of homosexuality.” OCFS sent an informational letter to the adoption agencies stating that the purpose of the regulation “is to prohibit discrimination based on sexual orientation in the adoption study assessment process,” and that “OCFS cannot contemplate any case where the issue of sexual orientation would be a legitimate basis, whether in whole or in part, to deny the application of a person to be an adoptive parent.”

Two years later, OCFS issued a new regulation which requires authorized adoption agencies to “prohibit discrimination and harassment against applicants for adoption services on the basis of race, creed, color, national origin, age, sex, sexual orientation, gender identity or expression, marital status, religion, or disability, and to take reasonable steps to prevent such discrimination or harassment by staff and volunteers, promptly investigate incidents of discrimination and harassment, and take reasonable and appropriate corrective or disciplinary action when such incidents occur.”

In 2018, OCFS undertook an audit of every adoption agency’s policies and practices.  New Hope passed the on-site audit with ease, but when their written policies were reviewed, OCFS took note of the policy of declining services to single people and same-sex couples, and advised OCFS that it needed to change its policy to comply with the non-discrimination policy.  New Hope dug in its heels, and eventually OCFS warned New Hope that it would have to close its operation if it would not comply with the non-discrimination policy.  Significantly, this did not occur as a result of anybody having been turned away or filed a complaint.

New Hope filed this lawsuit in the U.S. District Court for the Northern District of New York, claiming a violation of its constitutional rights, but the district court dismissed the lawsuit and denied New Hope’s request for a preliminary injunction to stop the state from ending their authorized status while the case was pending.  The judge, Mae D’Agostino, found that under the U.S. Supreme Court’s 1990 decision, Employment Division v. Smith, 494 U.S. 872, New Hope was not entitled to claim an exemption from compliance with the law based on its religious beliefs.  Justice Scalia’s opinion for the Court in that case said that there is no free exercise of religion exemption from complying with state laws of “general application” that are “neutral” regarding religion.

New Hope appealed to the 2nd Circuit, which reversed the district court on July 21.  The three-judge panel found, in an opinion by Circuit Judge Reena Raggi, that the complaint filed for New Hope by Alliance Defending Freedom contained sufficient factual allegations to at least raise an issue of whether New Hope had been targeted due to hostility by OCFS to its religious beliefs.  The court’s opinion notes that the adoption statute itself does not ban discrimination based on sexual orientation, but rather broadens the previous categories of individuals who are legally authorized to adopt children, leaving some question whether OCFS could adopt a non-discrimination requirement through a regulation.  Furthermore, the court noted Governor Paterson’s statement when the law was amended to allow unmarried couples to adopt that it was not intended to require any agencies to change their policies, because the statute was merely “permissive.”  The court also noted in quotations from the correspondence between OCFS and New Hope various statements that could be construed as hostile to or disapproving of New Hope’s religious beliefs.

In light of these and other factors, the court concluded that it was “premature” for the district court to dismiss the case outright.  In deciding a motion to dismiss, the trial court is supposed to treat as hypothetically true all the facts alleged by the plaintiff and to decide whether those facts, if proven, might provide the basis for a valid legal claim.  And, since the court found dismissal to be premature, it directed the trial court to reinstate the lawsuit on the active docket and to analyze whether New Hope is entitled to a preliminary injunction to allow it to carry on its operations while the case is being litigated.

The court was careful to make clear that was not deciding the merits of the case.  The opinion provides a detailed and searching discussion of the concepts of “neutral state laws” (meaning “neutral” regarding religion) and laws that are “generally applicable.”  The court noted that the Supreme Court has ruled that the rule of Employment Division v. Smith does not necessarily apply to situations where a law that looks neutral and generally applicable on its face is shown to have been motivated by government animus towards a particular group or, in the case of religion, animus towards particular religious practices.  The court also took note of the Supreme Court’s 2018 decision in Masterpiece Cakeshop, 138 S. Ct. 1719, in which it reversed a state court ruling that Masterpiece violated a public accommodations law by refusing to make a custom wedding cake for a same-sex couple.  The reversal was based on the Court’s conclusion that the state’s civil rights agency had displayed hostility to the baker’s religious views in the administrative hearing process.

Government discrimination against religious organizations was also targeted by the Supreme Court this Term when it held that the state of Montana’s scholarship program for students attending private schools could not exclude religious schools from participating, since this would be “discrimination” against religion.

The court also rejected the trial court’s analysis of New Hope’s argument that requiring it to evaluate and endorse same-sex couples as adoptive parents was a form of compelled speech.  Judge D’Agostino found that this would be “government speech,” because by authorizing New Hope to evaluate applicants the government was delegating to New Hope a governmental function.  Judge Raggi’s opinion questioned this conclusion, pointing out that New Hope was not a government contractor and was not paid by the government to undertake this activity.  Rather, it is an independent agency supported by fees for its services and charitable contributions.  New Hope has always avoided taking government money because it wanted to preserve its freedom to operate consistently with its religious beliefs.

The court also took note of the U.S. Supreme Court’s decision to review the 3rd Circuit Court of Appeals’ decision in Fulton v. City of Philadelphia, a case similar in many respects to this case.  The 3rd Circuit held that the City did not violate Catholic Social Services’ constitutional rights when it dropped that agency from participating in the City’s foster care system because of its refusal to deal with same-sex couples.  That case also relied on Employment Division v. Smith.  Judge Raggi observed that at least four justices of the Supreme Court have expressed the view in various dissenting or concurring opinions that the Court should “revisit” the holding of Smith, which was a controversial case when it was decided and which provoked Congress into passing the Religious Freedom Restoration Act, which was then imitated by many states (although not New York).  If the Supreme Court reverses the Fulton decision or modifies Employment Division v. Smith, the rules governing the New Hope case will be changed.  Judge Raggi also pointed out key distinctions between the two cases.  In Fulton, the Catholic agency was a city contractor and relied heavily on compensation from the city to perform its services, while New Hope, as noted above, is an independent operator that is “authorized” by the state to perform services but is not a contractor or funding recipient.

The case now goes back to District Judge D’Agostino to consider New Hope’s request for a preliminary injunction and to conduct discovery which may culminate in a summary judgment or a trial on the merits if the parties don’t settle the case first through some compromise.  In light the pace at which such proceedings take place, it is likely that the Supreme Court will have ruled in Fulton v. City of Philadelphia before Judge D’Agostino has to render a final decision on the merits in New Hope’s case.

Judge Raggi was appointed to the Court of Appeals by President George W. Bush.  She previously served on the District Court, having been appointed by President Ronald Reagan.

3rd Circuit Court of Appeals Orders Asylum for Gay Man From Ghana

Posted on: April 4th, 2020 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 3rd Circuit granted a petition by Adamu Sumaila, a gay man from Ghana, for asylum in the United States, reversing decisions by the Board of Immigration Appeals (BIA) , which had affirmed an Immigration Judge (IJ) decision denying Sumaila’s application. Circuit Judge Luis Felipe Restrepo wrote the opinion in Sumaila v. Attorney General of the United States, 2020 WL 1527070 (3rd Cir., March 31, 2020), which is noteworthy for being outspokenly critical of the administrative decision-making in this case.
Although the IJ did not conclude that Sumaila’s account of what happened to him that caused him to flee Ghana was not credible, the court found that the IJ’s conclusion that Sumaila had not suffered persecution severe enough make him presumptively qualified for asylum was not supported by the record, and furthermore that both the IJ and the BIA had failed to apply the appropriate standard based on 3rd Circuit case law for determining whether Sumaila met the high evidentiary bar of establishing his right to protection under U.S. refugee law.
The court particularly singled out “the instructors and students from the Immigration Law Clinic at West Virginia University College of Law for their skillful pro bono representation of the petitioner in this appeal.” Counsel listed on the opinion representing Sumaila were Adrian N. Roe, the instructor, and Paige Beddow and Scott A. Cain, the students, who were admitted pursuant to Third Circuit LAR 46.3. The opinion indicates that the students actually argued the appeal before the court.
Sumaila testified to a harrowing experience, as Judge Restrepo summarizes his testimony in the opinion. He was born and raised in Accra, Ghana’s capital, and “first realized he was gay” at age 14 when he shared an “intimate encounter with another boy,” Inusah, whom he met at school. Over the next twelve years the two boys continued their relationship but kept it hidden because, Sumaila believed, such a relationship was “not acceptable.” “He could not speak to his family about his feelings,” wrote Restrepo, “because he worried that, as Muslims, they would disapprove of his sexual orientation or, even worse, that his father would kill him.”
“When Sumaila was twenty-six years old, his anxieties materialized into a harsh reality,” wrote the judge. “One morning in January 2016, his father unexpectedly entered Sumaila’s bedroom at the break of dawn and discovered Sumaila having sex with Inusah. His father went into a rage and began shouting that ‘his son was having sex with another man,’ and called on others to ‘come, come and witness what my son is up to!’ He demanded answers from Sumaila and condemned his actions: ‘Why do you engage in homosexuality? You have brought shame to this family and I will make sure you face the wrath of this evil deed.’”
“Upon hearing this uproar, a crowd of neighbors gathered at Sumaila’s house, forming a violent mob. Together with his father, the mob began to beat the two young men with stones, wooden sticks, and iron rods, and dragged them into a courtyard. Some in the mob wanted to report the young men to the police, but others began to argue over how best to punish them: death by burning or beheading. Sumaila believed the death threats were real. He remembers being doused with kerosene, and hearing calls to set him on fire. He also saw someone in the mob brandish a ‘cutlass,’ a curved sword with a sharp edge like a machete. Fearing that his life was in danger, he managed to escape and ran naked, hurt and bleeding to a friend’s house about ten minutes away. Sumaila told his friend about the attack and about his sexual relationship with Inusah. His friend, too, became afraid. He worried that they could both be killed if people found out that Sumaila was hiding there.”
Sumaila was “too frightened to call the police” or to “seek medical care,” so Sumaila asked his friend to drive him to the neighboring country of Togo. He didn’t really feel safe there, either. He contacted his friend, who was able to retrieve Sumail’s passport from his home, and Sumaila was able to fly to Ecuador. “Sumaila has heard that his father has publicly disowned him for being gay, that he is still looking for him, and that he intends to kill him if he finds him,” wrote Restrepo, and he “still worries about Inusah, his partner of more than ten years. Despite numerous attempts, he has not been able to reconnect with him since that horrific day.”
Sumaila eventually made his way across the border into the United States without formal entry papers, and filed an application for asylum. “Sumaila claimed that, after having been violently outed, attacked and threatened by his father and neighbors, he fears that he will be killed or otherwise persecuted in Ghana because he is gay,” wrote Restrepo, stating in summary form the basis for Sumaila’s petition.
The IJ, though crediting Sumaila’s story, decided that it was just a single incident, that Sumaila was not severely enough injured to seek medical care, that he did not report it to the police (thus not giving the government a chance to take action against his father or the mob for assaulting him), and consequently that he did not prove the level of persecution necessary to trigger the presumption that he would be subjected to persecution if he were sent back to Ghana. The IJ also asserted that Sumaila could avoid persecution on being sent back to Ghana by relocating to another part of the country and keeping his homosexuality hidden. The BIA affirmed this opinion.
The court of appeals panel evidently found this treatment of Sumaila’s asylum case by both the IJ and the BIA to be rather astonishing, especially in light of Ghana’s criminal law treating homosexual conduct as a crime subject to up to three years in prison, and State Department and other non-governmental human rights orgagnizations’ reports about the violence gay people experience in Ghana, including in prison.
The court noted the extensive circuit-level precedent recognizing that persecution on account of sexual orientation can qualify as a ground for asylum under U.S. law, in opinions dating back several decades to the early years of the Clinton Administration. “In rejecting Sumaila’s claim, however,” wrote the judge, “the IJ found that Sumaila had ‘not established that he suffered mistreatment on account of his sexual orientation that rises to the level of persecution.’ The BIA affirmed that finding without expressly reviewing the alleged motive of Sumaila’s tormentors. We construe the IJ’s and the BIA’s truncated decisions as rejecting both Sumaila’s claim that he was targeted ‘on account of’ his sexual orientation and that he suffered persecution.”
The court reached the contrary conclusion. “Here, there can be no serious dispute that the attack and threats Sumaila suffered were motivated by his sexual orientation,” asserted Restrepo. “Sumaila credibly testified that the mob’s violent and menacing behavior was instigated by his father’s outrage at discovering him having sex with another man and offered evidence that his father explicitly connected this violent response to his disapproval of Sumaila’s “homosexuality.’ Others in the mob wanted to report Sumaila to the police, further indicating that they were reacting to his same-sex relationship since that is the only conduct that could have conceivably incriminated Sumaila under Ghanaian law. Sumaila thus has demonstrated that he was targeted on account of his membership in a statutorily protected group.”
As to whether Sumaila met the test of “persecution” for purposes of U.S. asylum law, the court found that its past precedents supported his claim that a credible threat to his life and liberty because he is gay was sufficient to meet the test. “Crediting Sumaila’s testimony as the BIA did, we know that a violent mob beat Sumaila with makeshift weapons and dragged him across the floor from his room to a courtyard, causing him to bleed from his mouth and suffer injuries to his head and back. Sumaila was then threatened with death by burning or beheading, at the same time that he was being doused with kerosene and exposed to a cutlass. In combination with these violent acts of intimidation and his injuries, the death threats were sufficiently ‘concrete and menacing’ to transform this incident from a ‘simple beating’ into outright persecution.” The court also pointed out that, contrary to the government’s argument, the fact that these threats were “unfulfilled” – i.e., that Sumaila managed to escape – did not make them any less significant, in light of the report that his father continued to threaten his life if he returned to Ghana.
“Neither the IJ nor the BIA addressed the significance of these threats under the dispositive case law available at that time, and that omission derailed their analysis,” concluded the court. “The IJ focused exclusively on the ‘beating,’ finding that this incident was not extreme enough to constitute persecution because Sumaila had only been attacked once and he ‘did not require medical treatment.’” This was a mischaracterization of the record, the court pointed out, because he credibly testified to serious injuries, stating that he was afraid to seek medical assistance because of the hostility toward gay people.
“The BIA agreed that this ‘isolated’ incident did not rise to the level of persecution because Sumaila ‘was not so injured that he required medical attention and he was able to run to his friend’s house, which was some distance away[.]’ That analysis was based on a misunderstanding of the law and must be reversed. . . . It is debatable whether the record contains enough evidence to ascertain the full extent of Sumaila’s injuries, but our decision need not hinge on the severity of those injuries because this case involves so much more. . . . In short, because the IJ and the BIA accepted Sumaila’s testimony as true but then proceeded to misstate and ignore certain relevant aspects of that testimony, and because they committed legal error by finding that a single beating without severe physical injury to Sumaila was dispositive, their determination that his experience did not rise to the level of past persecution must be overturned.”
The court also rejected the government’s argument that Sumaila’s failure to report this incident to the police was “fatal” to his claim. In order to gain asylum, a petitioner has to show that he was subject to persecution by the government or by private forces that the government was unwilling or unable to control. In this case, the government argued that Sumaila’s father and the angry mob were not government officials, and Sumaila never sought to get the government involved in dealing with his situation. But for good reason, wrote the court, pointing to the extensive documentation presented by Sumaila’s counsel about the situation confronted by gay people in Ghana.
“Here, the record is replete with evidence that Ghanaian law deprives gay men such as Sumaila of any meaningful recourse to government protection and that reporting his incident would have been futile and potentially dangerous,” wrote Restrepo. “Ghana criminalizes same-sex male relationships under the guise of ‘unnatural carnal knowledge,’ defined to include ‘sexual intercourse with a person in an unnatural manner or with an animal.’ The text of this law – equating same-sex male relationships to sex with an animal – is already a clear indication of the government’s official position on gay men. Although the law classifies consensual sex between men as a ‘misdemeanor,’ the offense is punishable by up to three years in prison. Prosecution and disproportionate punishment based on any of the INA’s protected grounds, including sexual orientation, are cognizable forms of persecution, ‘even if the law is generally applicable,’ and perhaps significantly more, are sufficiently severe to constitute ‘persecution’ under this Circuit’s standard. . . . Had Sumaila reported the beating or threats, he would have outed himself and his partner to the police and, on that basis, he could have been arrested, prosecuted and incarcerated, compounding the persecution he had already suffered. This fact alone is compelling, if not dispositive, evidence that Sumaila had no meaningful recourse against his father’s and the mob’s homophobic violence. At best, seeking help from the police would have been counterproductive.”
“The record also shows that the Ghanaian government is unable or unwilling to protect LGBTI persons from other forms of mistreatment,” Restrepo continued. “For instance, Ghanaian law does not prohibit anti-gay discrimination even though there is a well-documented hostility towards the LGBTI community throughout the country. According to the State Department country report, ‘societal discrimination against [LGBTI] individuals’ rises to the level of a ‘human rights problem,’ and discrimination against LGBTI individuals in education and employment is ‘widespread.’ The report cites data from Ghana’s Commission on Human Rights and Administrative Justice, showing that ‘men who have sex with men’ are among the groups of people who have reported incidents of ‘stigma and discrimination,’ including breaches of protected health information, blackmail/extortion, harassment/threats, and violence or physical abuse. Amnesty International’s country report confirms that LGBTI individuals face ‘discrimination, violence and instances of blackmail in the wider community.’ Sumaila submitted other evidence echoing these accounts, including a letter from his friend stating that ‘authorities in Ghana have minimal concern for gay rights and politicians are always promising electorates of eradicating gays,’ as well as a news report evincing anti-gay political rhetoric ahead of the 2016 general elections.”
This evidence went not only to implicating the government as a persecuting actor, but also to the issue of Sumaila’s reasonable fear of persecution if he were returned to Ghana by the U.S. as a known homosexual person. Besides the matter of his father’s continuing threat to find and kill him, there was ample evidence in the record that the only way he would be able to survive in Ghana would be to hide his homosexuality, and asylum law treats that as an important factor.
The IJ and BIA hung their conclusions, in part, on a report (unverified) that there was actually a prosecution going on in Ghana of somebody charged with assaulting a gay man, but there is nothing in the record about how that turned out. “Considering that homophobic violence goes largely unreported because LGBTI persons fear harassment and extortion at the hands of police officers,” wrote the court, “one case in which anti-gay violence was supposedly prosecuted is hardly probative of the government’s ability or willingness to protect gay men. Because the IJ and the BIA disregarded, mischaracterized and understated evidence favorable to Sumaila, including relevant portions of his testimony and the country reports, ‘the BIA succeeded in reaching a conclusion not supported by substantial evidence such that we are compelled to reach a conclusion to the contrary.’”
Having concluded that Sumaila had proved that he was subjected to past persecution, the next step in the court’s analysis, focusing on the question whether he had a reasonable fear of persecution if returned to Ghana, would focus on whether the government had rebutted the presumption that he would face persecution in the future. While ordinarily at this point the case would be remanded to the BIA, and subsequently to the IJ, to allow the government a chance to attempt to rebut the presumption, “remand for this purpose is not necessary here, because even without applying the presumption and corresponding burden-shifting framework, the IJ’s and the BIA’s finding that Sumaila does not have a well-founded fear of future persecution cannot stand on this record,” wrote Retrepo.
“The IJ found that, although Sumaila ‘had]credibly testified that he subjectively fears persecution if returned to Ghana,’ he failed to show that ‘a reasonable person would fear the same.’ There is no dispute that Sumaila’s subjective fear is genuine. Thus, we focus on whether Sumaila’s fear of future persecution is objectively reasonable.” The court found the IJ’s conclusions on this point, affirmed by the BIA , to be “not supported by substantial evidence, because they are based on mischaracterizations, unreasonable inferences, and an incomplete assessment of the record.”
“Up until the attack, Sumaila’s ability to avoid this sort of homophobic abuse hinged on his ability to dissemble his sexual orientation and keep his sexual relationship with his partner hidden,” wrote the court. “No major leap is required to conclude that other gay men like Sumaila are escaping persecution by hiding or suppressing their sexuality as well. Indeed, anti-gay laws such as Ghana’s criminalization of sex between men are intended to stigmatize and punish, in effect, to suppress the expression of gay identity and sexuality in society. Secreting his gay identity is not a workable solution for Sumaila. Now that he has been publicly outed by his father, the risk of future persecution at the hands of uncontrolled private actors has increased, as evidenced by his father’s success at enlisting neighbors willing to assault and kill Sumaila because he is gay.”
“Sumaila is also at a higher risk of being prosecuted and punished, i.e., persecuted by the state, after being outed as a gay man. The Government responds that any future risk of arrest is not persecution because it would be ‘arbitrary.’ That argument misses the mark. The issue is not arbitrary arrest but state-sanctioned prosecution and punishment on account of a statutorily protected status. In no other context would prosecution and disproportionate punishment based on any of the INA’s protected grounds be anything other than persecution. If Sumaila were facing these risks because of his religious beliefs or political opinion, we would not hesitate to find an objectively reasonable fear of future persecution in these circumstances.”
“In short,” wrote the court, “we hold that Sumaila’s objective experience with anti-gay violence, the ongoing threats to his life, Ghana’s criminalization of same-sex male relationships and the widespread unchecked discrimination against LGBTI persons, combine to satisfy the requirement that his fear of persecution be objectively reasonable.”
Finally, the court addressed the IJ’s bizarre assertion that Sumaila could avoid persecution by staying away from Accra, his hometown, or by hiding his homosexuality. “The IJ found that there was no indication that Sumaila ‘would not be safe from his family if he relocated to another part of Ghana.’ That finding is based on unreasonable presumptions and a misunderstanding or mischaracterization of relevant evidence. Sumaila has reason to believe his father is still looking for him. Nothing in the record suggests that Sumaila’s father cannot travel freely around the country in search of Sumaila. Considering that Ghana’s criminalization of same-sex male relationships is country-wide, and that ‘widespread’ homophobia and anti-gay abuse is a ‘human rights problem,’ relocation is not an effective option for escaping persecution. Nor is it a reasonable solution,” the court continued. “Relocation is not reasonable if it requires a person to ‘live in hiding.’ To avoid persecution now that he has been outed, Sumaila would have to return to hiding and suppressing his identity and sexuality as a gay man. Tellingly, the IJ’s observation, no matter how ill-advised, that Sumaila could avoid persecution and live a ‘full life’ if he kept ‘his homosexuality a secret,’ was a tacit admission that suppressing his identity and sexuality as a gay man is the only option Sumaila has to stay safe in Ghana. The notion that one can live a ‘full life’ while being forced to hide or suppress a core component of one’s identity is an oxymoron.”
“Because Sumaila suffered past persecution and has a well-founded fear of future persecution on account of his sexual orientation and identity as a gay man, he qualifies as a refugee under the INA. Therefore, we will vacate the BIA’s decision and remand for further proceedings consistent with this opinion,” concluded the court.
The court supplemented its opinion with a footnote critical of the IJ’s performance in this case. “In case the BIA decides to remand to the IJ for any reason, we caution the IJ to exercise greater sensitivity when processing Sumaila’s application, as we are troubled by some of the IJ’s comments and questions,” wrote Restrepo. “In addition to suggesting that Sumaila would be better off hiding his identity as a gay man, the IJ questioned Sumaila in explicit detail about his sexual relations with Inusah, going so far as to ask about sexual positions. It is unclear why that line of questioning would be relevant to Sumaila’s claim, but to the extent those questions were intended to establish or test his self-identification as a gay man, they were off base and inappropriate. We urge IJs to heed sensible questioning techniques for all applicants, including LGBTI applicants.”
Judge Restrepo, a native of Colombia who became a U.S. citizen in 1993, was appointed to the district court and a few years later to the 3rd Circuit Court of Appeals by President Barack Obama.

7th Circuit Ruling Creates Federal Precedent to Protect Older Gays in Residential Facilities

Posted on: August 27th, 2018 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit ruled on August 27 that a lesbian resident of a rental facility for seniors in Illinois may seek to hold the management of the facility accountable for severe harassment against her by other residents due to her sexual orientation.  The ruling reversed a decision by U.S. District Judge Samuel Der-Yeghiayan, a George W. Bush appointee, to dismiss her case.  The court of appeals decision marks an important appellate precedent for the protection of older LGBT people living in residential facilities.  The case is Wetzel v Glen St. Andrew Living Community, LLC, Case No. 17-1322 (7th Cir., Aug. 27, 2018).

Marsha Wetzel moved into Glen St. Andrew Living Community after her partner of 30 years died. Under the Tenant’s Agreement she signed with the facility, she is entitled to a private apartment, three meals daily served in a central location, access to a community room, and use of laundry facilities.  The agreement requires her (and all other tenants under their agreements) to refrain from “activity that [St. Andrew] determines unreasonably interferes with the peaceful use and enjoyment of the community by other tenants” or that is “a direct threat to the health and safety of other individuals.”  The Agreement also authorizes the facility to bring eviction proceedings against a tenant who violates the Agreement.

Wetzel was not closeted, speaking openly with staff and other residents about her sexual orientation when she moved in. “She was met with intolerance from many of them,” wrote Chief Judge Diane Wood in summarizing the allegations in Wetzel’s Complaint.  For purposes of ruling on the facility’s motion to dismiss her case, the court’s role is to accept Wetzel’s allegations as true and to decide whether those allegations, if proved at trial, would constitute a violation of her rights under the Fair Housing Act, which forbids discrimination because of sex.

Judge Wood’s summary of the Complaint makes horrific reading. “Beginning a few months after Wetzel moved to St. Andrew and continuing at least until she filed this suit (a 15-month period), residents repeatedly berated her for being a ‘fucking dyke,’ ‘fucking faggot,’ and ‘homosexual bitch.’  One resident, Robert Herr, told Wetzel that he reveled in the memory of the Orlando massacre at the Pulse nightclub, derided Wetzel’s son for being a ‘homosexual-raised faggot,’ and threatened to ‘rip [Wetzel’s] tits off.’  Herr was the primary, but not sole, culprit.  Elizabeth Rivera told Wetzel that ‘homosexuals will burn in hell.’”

The Complaint also describes incidents of physical abuse, focused on knocking Wetzel off the motorized scooter she depends upon to get around, spitting at her, and striking her from behind accompanied by anti-gay epithets.

When she complained to the staff, there was a “brief respite,” but soon the misconduct continued. Indeed, Judge Wood wrote, “the management defendants otherwise were apathetic.  They told Wetzel not to worry about the harassment, dismissed the conduct as accidental, denied Wetzel’s accounts, and branded her a liar.”  Furthermore, Wetzel alleges, they retaliated against her by relegating her “to a less desirable dining room location” after she notified them about one incident of physical harassment by another resident, “barred her from the lobby except to get coffee” and “halted her cleaning services, thus depriving her of access to areas specifically protected in the Agreement.”  They also false accused her of smoking in her room and one St. Andrews worker “slapped her across the face” when she denied having violated the no-smoking rule.

In what sounds like a transparent attempt to set her up for an eviction for non-payment, they failed to send her the customary rent-due notice sent to all tenants, but she remembered to pay on time, “but she had to pry a receipt from management.”

As a result of these management responses, Wetzel sharply curtailed her activities outside her room, staying away from common spaces including the dining room, and finally, fed up with this mistreatment, filed this lawsuit, alleging violations of the FHA as well as state laws. (Illinois laws forbid sexual orientation discrimination in housing and public accommodations.)

The facility did not argue in defense that the FHA does not ban sexual orientation discrimination. They could hardly raise such an argument in the 7th Circuit, because that court was the first appellate court to rule that sexual orientation claims are a subset of sex discrimination claims, under the similar anti-discrimination provisions of Title VII of the Civil Rights Act of 1964.

Instead, the defendant argued that the landlord cannot be held liable for discrimination by other tenants under the FHA without a showing of discriminatory animus by the landlord. Furthermore, it argued that FHA deals with refusals to rent, and does not cover “post-acquisition harassment claims.”  In other words, as Judge Wood explained, once an apartment has been rented, the defendant argued that the FHA is no longer relevant to claims brought by “a tenant already occupying her home.”  The defendant countered Wetzel’s retaliation claim by arguing, once again, that it lacked an allegation that defendants were motivated by discriminatory animus.

District Judge Der-Yeghiayan agreed with the defendants’ FHA arguments and dismissed the case. The dismissal of the FHA claim removed the basis for federal jurisdiction, and the judge declined to keep the state claims alive, dismissing them for lack of jurisdiction, although federal courts do have discretion to continue to consider state law claims in such cases.

Writing for the appeals court, Judge Wood relied on cases of workplace harassment decided under Title VII for a standard to apply to a harassment case brought under the FHA, for which there was no precedent in the 7th Circuit.  “The harassment Wetzel describes plausibly can be viewed as both severe and pervasive,” she wrote, referring to the Title VII standard.  “For 15 months, she was bombarded with threats, slurs, derisive comments about her family, taunts about a deadly massacre, physical violence, and spit.  The defendants dismiss this litany of abuse as no more than ordinary ‘squabbles’ and ‘bickering’ between ‘irascible,’ ‘crotchety senior resident[s].’  A jury would be entitled to see the story otherwise.”

The question for the court was whether there was a basis to impute liability to St. Andrew for the hostile housing environment, a question new for the 7th Circuit.  Again, the court borrowed from principles established under another statute, this time focusing more on Title IX of the Education Amendments Act, under which schools have been held liable for harassment of students by other students, when the harassment was brought to the attention of school authorities and they failed to take appropriate steps to assure that the harassed students were not denied equal educational opportunity because of their sex.

The question was whether the facility management had “actual knowledge of the severe harassment Wetzel was enduring and whether they were deliberately indifferent to it. If so,” wrote the judge, “they subjected Wetzel to conduct that the FHA forbids.”  The court rejected St. Andrew’s argument that the landlord-tenant relationship is so different from the school-student relationship as to make such a test inappropriate.  The court, finding that the defendant had inaccurately described the court’s holding, responded: “We have said only that the duty not to discriminate in housing conditions encompasses the duty not to permit known harassment on protected grounds. The landlord does have responsibility over the common areas of the building, which is where the majority of Wetzel’s harassment took place.  And the incidents within her apartment occurred precisely because the landlord was exercising a right to enter.”

The court rejected St. Andrew’s argument that its ruling would unfairly hold St. Andrew liable for actions it was “incapable of addressing,” pointing out that the tenant Agreement signed by all residents imposed obligations on tenants not to engage in conduct that would constitute a “direct threat to the health and safety of other individuals” and to refrain from conduct that would “unreasonably” interfere with “the peaceful use and enjoyment of the community by other tenants.” This is, on its face, directly applicable to the conduct of other residents directed at Wetzel.  And the Agreement gives the facility the right to seek to evict tenants who violate these rules.  Yet, according to Wetzel’s Complaint, the facility took action against her for complaining rather than against her harassers for their misconduct.

The court also noted a rule published by the Department of Housing and Urban Development (HUD) in 2016, providing that a landlord could be held liable under the FHA for failing to “take prompt action to correct and end a discriminatory housing practice by a third party” (such as a fellow resident in a rental building) if the landlord “knew or should have known of the discriminatory conduct and had the power to correct it.” The court said it did not need to rely on this rule, however, stating that “it is enough for present purposes to say that nothing in the HUD rule standings in the way of recognizing Wetzel’s theory” for landlord liability in her case.

The court also discounted St. Andrew’s argument that this case is just about “bad manners” by some residents. “It is important,” wrote Wood, “to recognize that the facts Wetzel has presented (which we must accept at this stage) go far beyond mere rudeness, all the way to direct physical violence.”  She noted that under Title VII courts have routinely had to distinguish between hostile environment harassment and mere incivility.

The court also decisively rejected St. Andrew’s claim that the FHA anti-discrimination provision does not apply once the apartment is leased to the tenant. The statute bans discrimination regarding “services or facilities,” and the court pointed out that “few ‘services or facilities’ are provided prior to the point of sale or rental; far more attach to a resident’s occupancy.”  In this case, Wetzel’s allegations included her virtual exclusion from the enjoyment of the common areas of the building, and denial of certain services to which she was entitled under the tenant Agreement.  “At a minimum, then,” wrote the court, “Wetzel has a cognizable post-acquisition claim because discrimination affected the provision of services and facilities connected to her rental.  Beyond that, the discrimination diminished the privileges of Wetzel’s rental.”

The court also rejected St. Andrew’s argument, which the district court had accepted, that the anti-retaliation provision of the statute required proof of the landlord’s discriminatory intent. “Indeed,” wrote Judge Wood, “if we were to read the FHA’s anti-retaliation provision to require that a plaintiff allege discriminatory animus, it would be an anomaly.  Like all anti-retaliation provisions, it provides protections not because of who people are, but because of what they do.”  The focus, thus, is on whether the landlord takes some adverse action after a tenant complains about violation of her rights under the FHA, not whether the landlord is biased against somebody because she is a lesbian.

In sending the case back to the district court, the Court of Appeals revived Wetzel’s FHA claim and also directed to the court to “reinstate the state-law claims that were dismissed for want of jurisdiction.”

Wetzel is represented by Lambda Legal and cooperating attorneys from Foley & Lardner LLP.