Tag Archive for "U.S. District Court" - Art Leonard Observations

Posts Tagged ‘U.S. District Court’

Trump Alumni Group Engineers Challenge to Bostock Application Outside of Title VII

Posted on: May 2nd, 2022 by Art Leonard No Comments

Shortly after the end of Donald Trump’s Administration, a group of his top officials formed a new organization intended to challenge attempts by the Biden Administration to change Trump’s policies. With Stephen Miller, White House counselor and the evil genius behind many of Trump’s policies, as its president and board chair, America First Legal Foundation boasts as board members former Chief of Staff Mark Meadows, former Acting Attorney General Matthew Whitaker, and former Director of the Office of Management and Budget Russ Vought. Co-founder with Miller is Gene Hamilton, former senior counselor to the Secretary of Homeland Security and former counselor to the Attorneys General in the Trump Administration. Not surprisingly, finding ways to limit the impact of the Supreme Court’s ruling in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), is high on their list of priorities. In Bostock, the Supreme Court held that sexual orientation and gender identity discrimination claims came within the sphere of prohibited sex discrimination under Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch, writing for a 6-3 majority, purported to use “textual” analysis to reach this result based on the “original meaning” of the language used by Congress in 1964, which, according to Gorsuch, would be “biological sex.”

America First’s litigation vehicle for this project is Neese v. Becerra, 2022 WL 1265925, 2022 U.S. Dist. LEXIS 75847 (N.D. Tex., April 26, 2022). U.S. District Judge Matthew J. Kacsmaryk denied the government’s motion to dismiss this case on April 26. The suit targets the extension of Bostock’s reasoning to Title IX of the Education Amendments of 1972 and Section 1557 of the Affordable Care Act.

This case is an audacious example of overt forum-shopping. The suit was filed in the U.S. District Court in Amarillo, Texas, a courthouse within the Northern District of Texas. There is only one district judge assigned to that courthouse — Judge Kacsmaryk – so any case filed there goes directly to him. They could not have picked a better judge for their case. Kacsmaryk was among the early Trump judicial nominees, a Federalist Society member and former deputy general counsel of First Liberty Institute, a litigation group that pushes for the broadest possible interpretation of religious freedom as against government regulations. LGBT groups protested his nomination, pointing to his statements that homosexuality as “disordered,” and that transgender people are delusional and suffering a mental disorder. (As a member of the Red Mass Committee of the Roman Catholic Diocese of Fort Worth, his use of the term “disordered” is not surprising, given the use of this term by the Catholic Church to describe homosexuality.) Despite the iron grip on judicial nominations by then-Majority Leader Mitch McConnell and then-Judiciary Committee Chair Chuck Grassley in the Senate, it took three tries for Trump to get this one through. The 2017 nomination died at the end of session; Trump renominated in 2018, but that died at the end of session; Trump renominated in 2019. This time, Kacsmaryk passed the Judiciary Committee and the Senate floor on party-line votes. He’s the judge who enjoined the Biden Administration’s attempt to modify southern border control policies without going through a complete Administrative Procedure Act cycle.

The lawsuit was filed last year on behalf of three doctors, said to practice in Texas and California, but the judge’s opinion does not specify whether any of them practices within the geographical scope of the district court in Amarillo. No matter, as jurisdiction to sue the federal government lies in every federal district court. They claim fear of being sued or prosecuted for discrimination under Section 1557 because of their approach to dealing with transgender patients as the basis of their standing to sue.

Although one would expect a judge with Kacsmaryk’s background to be challenged with a recusal motion, or even to voluntarily recuse in an LGBT case given the controversy surrounding his appointment, there is not a whiff of that in the opinion. The Justice Department moved to dismiss on two grounds: standing of the plaintiffs, and failure to state a claim in light of Bostock. The essence of plaintiffs’ case is arguing that Bostock does not apply to Title IX and Section 1557, so the Biden Administration’s view (expressed in the President’s first executive order issued in January 2017 and a subsequent Notification sent to health care providers and insurers by HHS) is contrary to law.

As to standing, the plaintiffs allege that they have all had transgender plaintiffs, including minors (the main focus of their discussion), and that they have provided gender-affirming care to some when they felt it justified, but that they believe gender-affirming care is not appropriate for all minors who identify as transgender, that surgical alteration is never justified for minors, and that they should be free to treat their patients consistent with their patients’ “biological sex” and the doctors’ ethical views. The Notification that HHS sent to health care providers early in the Biden Administration advised that the agency would apply Bostock’s reasoning to hold that Section 1557 of the Affordable Care Act, whose prohibited grounds of discrimination are cross-referenced from other federal laws including Title IX, applies to claims of discrimination because of sexual orientation or gender identity, and that HHS would enforce the statute accordingly. This was directly contrary to the interpretation published by the Trump Administration as recently as January 2021, shortly before the transfer of office to Biden. The plaintiffs described various scenarios in which they believe that the treatments they were bound to provide or to deny based on their professional ethics would place them in danger of lawsuits by patients and enforcement by HHS under Section 1557. Judge Kacsmaryk decided this was sufficient to give them standing to challenge the interpretation. They are seeking declaratory and injunctive relief at this point. None of them have been sued or investigated by HHS on this issue.

As to failure to state a claim, plaintiffs disputed that Bostock’s reasoning was applicable to Title IX and Section 1557 (although several other federal courts since June 2020 have found the reasoning applicable). They note that the 5^th Circuit has yet to issue a controlling precedent on this, and the Supreme Court has not taken up the question. The judge decided that as a “pure question of law” this was an open issue, and that plaintiffs’ allegations were sufficient to put it in play.

In particular, the judge zeroed in on differences in language and structure between Title VII and Title IX. Title VII, an employment discrimination statute, was construed in Bostock to impose a “but-for” test of intent for disparate treatment employment discrimination claims. Judge Neil Gorsuch’s opinion for the Court reasoned that it was impossible for an employer to discriminate against an applicant or employee “because of” their sexual orientation or gender identity without discrimination “because of” their sex, using the language of the statute. Furthermore, Title VII has been construed – a construction bolstered by Congress in the Civil Rights Restoration Act of 1991 – to apply so long as a forbidden ground of discrimination, such as sex, was a factor in a personnel decision, albeit just a contributing one.

By contrast, Title IX, adopted a few years after Title VII, prohibits discrimination by educational institutions that receive federal money “on the basis of sex.” Plaintiffs argue that this is a different standard from that imposed by Title VII, and point to various provisions of Title IX that at least by implication would suggest a biological definition of sex and a binary treatment of sex, including a provision of the Title IX regulations (which is frequently invoked by defendant school districts in cases involving restroom and locker room access by transgender students) that authorize separate facilities for boys and girls. Their argument is that Gorsuch’s reasoning in Title VII is peculiar to Title VII and the workplace issues to which it applies, and is not transferable to other contexts, such as schools or health care providers. This argument, found the judge, puts the interpretive issue in play, so he denies the motion to dismiss for failure to state a claim.

As noted above, this case is clearly a set-up, filed in Amarillo specifically to present it to Judge Kacsmaryk, noting the strong rightward tilt of the 5^th Circuit, where Republican appointees among active judges outnumber Democratic appointees by 12-5 (including 6 Trump appointees), and the plaintiffs’ clear aim is to get this up to the Supreme Court’s 6-3 conservative majority to get a “definitive” ruling that Bostock does not apply to Title IX (and by extension to the ACA Section 1557). Civil rights enforcers in the Department of Education and the Department of Health and Human Services are already involved in investigating and pursuing claims in several courts. The Supreme Court has already declined opportunities to address the question, but a 5^th Circuit ruling along the lines proposed by America First in this lawsuit would create a circuit split that would prove most enticing to at least four and possibly more members of the court.

Counsel for plaintiffs from America First Legal Foundation is Gene Hamilton, with local counsel in Amarillo from Sprouse Shrader Smith PLLC, and Jonathan F. Mitchell of Austin. Lead attorney from the Civil Division of the Justice Department is Jeremy S. B. Newman, with Brian Walters Stoltz from the U.S. Attorney’s Office in Dallas and Jordan Landum Von Bokern from the Justice Department in Washington.

This case bears close watching. A “nationwide” injunction from Judge Kacsmaryk would seem likely, if his analysis on the motion to dismiss is any indication, and could throw a wrench into ongoing enforcement activity, not only by HHS and DOE, but by other federal agencies with sex discrimination jurisdiction.

Federal Court Rules That Charlotte (N.C.) Catholic High School Violated Title VII by Discharging Gay Substitute Teacher

Posted on: September 6th, 2021 by Art Leonard No Comments

In 2014, after federal courts ruled that North Carolina had to allow same-sex couples to marry, Lonnie Billard and his long-time partner Richard Donham decided to marry and Billard posted an exuberant announcement on his Facebook page for his friends only. He ended that announcement by stating, “If you don’t agree with this. . . keep it to yourself. You never asked my opinion about your personal life and I am not asking yours.”

Among Billard’s Facebook friends were staff and parents associated with Charlotte Catholic High School, where he had taught as a substitute English teacher since 2012, after a decade as a full-time member of the faculty teaching English and Drama. His friends did not keep the news to themselves, and the school stopped calling Billard as a substitute. When he asked why, he was told by the assistant principal that it was because he “announced his intention to marry a person of the same sex.”

Billard had been a very successful teacher at Charlotte Catholic. He won the Inspirational Educator Award from North Carolina State University in 2011 and the Charlotte Catholic Teacher of the Year Award in 2012. He had been nominated for that award “every year since its inception,” according to the man who was principal of the school at that time. He had been associated with the school since 2000, and throughout that time he had been in a “romantic relationship” with Donham, whom he listed on Charlotte Catholic employee contact forms as his “friend” or “housemate,” and who was identified on some forms as living at the same address as Billard. Donham came to Charlotte Catholic events with Billard, accompanying him on class trips to New York City with the drama students to see musicals, and had even served as a substitute teacher when Billard was teaching English full-time. Donham also substituted at the Charlotte Diocese’s middle school. Billard claimed that members of the high school’s administration knew that he was gay, but the current principal and assistant principal both claimed, rather incredibly, that they were not aware of his sexual orientation until his Facebook post in December 2014.

The Catholic Church is outspokenly opposed to same-sex marriage, and Catholic schools, which have employed many lesbians and gay men as teachers, have consistently dismissed those employees, regardless of how they have performed their jobs, upon finding out that they intended to or had married same-sex partners. The de facto position of the Church sounds like the federal government’s old “don’t ask, don’t tell” policy on gay military service. They were happy to employ qualified gay people as ministers (especially church musicians) and teachers, so long as the employees were quiet about being gay and did not go public on same-sex marriages, which the Church saw as defying Catholic doctrine and setting a bad example for congregants and students.

Billard filed a charge with the Equal Employment Opportunity Commission in May 2015, claiming a violation of his rights under Title VII, but at that time the EEOC had not yet issued its ruling that it would investigate and prosecute sexual orientation claims under Title VII’s ban on discrimination because of sex. Ironically, the EEOC issued such a decision, in the case of gay air traffic controller David Baldwin, in July 2015, shortly after the Supreme Court ruled in June 2015 in the Obergefell case that same-sex couples had a constitutional right to marry. Billard’s charge was still pending with the EEOC at that time, but perhaps the school’s religious defenses discouraged the EEOC from pursuing Billard’s case directly, as it decided not to sue Charlotte Catholic High School on his behalf, instead issuing a “Notice of Right to Sue Letter” to him in November 2016. He obtained representation from the ACLU Foundation and its North Carolina affiliate, which filed suit against the school in January 2017. On September 3, 2021, U.S. District Judge Max O. Cogburn, Jr., of the federal district court in Charlotte, granted summary judgment to Billard and denied summary judgment to the school, finding that Billard had proven a clear violation of Title VII and that none of the defenses argued by the school were valid.

The school argued that it had not fired Billard because is gay, but rather because he supports gay marriage, which the Catholic Church opposes. The school argued that under the First Amendment’s protection for free exercise of religion, it is privileged to discharge teachers who disagree with the Church’s positions. The school also argued that it was protected from liability by two sections of Title XII that relieve religious institutions, including religious schools, from complying with the statute’s ban on discrimination because of religion. The school also cited a “church autonomy doctrine” under the First Amendment, which prohibits “excessive government intrusion upon religion” and which includes the so-called “ministerial exception” that the Supreme Court has identified as sheltering religious institutions from any liability for their employment decisions regarding ministers. The school also cited the Religious Freedom Restoration Act, arguing that this federal statute would prevent the court from holding it liable for discrimination under Title VII.

The school actually disclaimed any contention that Billard comes within the ministerial exception, but to be on the safe side, Judge Cogburn explained why Billard’s duties as a substitute teacher did not come within the scope of that exception, as most recently described by the Supreme Court last year in a Catholic schoolteacher case, Our Lady of Guadalupe School v. Morrissey-Berru. Despite the Supreme Court’s broad definition of the exception to extend to any religious school teacher who performed any religious functions, the judge concluded that Billard’s charge to lead a prayer at the beginning of each class was too minimal to excuse the School from complying with Title VII in his case. He was not hired to teach religion.

Judge Cogburn rejected the school’s argument that discharging somebody for announcing his plans to marry a same sex partner was not discriminating against him because of his sex (or sexual orientation), drawing a comparison to Supreme Court Justice Neil Gorsuch’s reasoning in the Bostock decision of 2020. The judge pointed out that a female teacher who posted an announcement on Facebook that she was marrying a man would not be discharged, but when Billard, a man, posted the announcement that he was marrying a man, he was discharged, so clearly his sex was a reason for his discharge. Justice Gorsuch had described similar hypothetical situations in explaining the Supreme Court’s conclusion that firing an employee for being gay was inescapably due, in part, to the employee’s sex, and thus prohibited by Title VII, even though members of Congress in 1964 would not have expected such a ruling. Gorsuch, a “textualist,” takes the view that the words of the statute take priority over the expectation or intentions of the legislators who passed it, and his view won the support of six of the Court’s nine members.

As to the express religious institution exemptions included in Title VII, the court concluded that they were not intended to excuse religions institutions from complying with Title VII’s ban on discrimination because of sex. Rather, they were enacted to allow religious institutions to prefer members of their faith in making employment decisions. Billard is a Catholic, and the court was unwilling to accept the school’s argument that a provision allowing it to discriminate because of religion also gave it a right to discriminate because of sex if it had a religious reason for doing so. Under that theory, a religious institution would be free to discriminate on the basis of race, color, national origin or sex, the other categories prohibited under Title VII, which stretches the religious exception too far and would expose thousands of employees of religious institutions to discriminatory treatment. Congress has not given religious institutions free reign to discriminate against employees for reasons other than the employees’ religion.

As to the Religious Freedom Restoration Act, many federal appeals courts have ruled that it applies only to situations where the government is suing to enforce a federal statute against a religious defendant, but not to lawsuits brought by private individuals. Although the Supreme Court has yet to rule on this question, and at least one appeals court has disagreed with that conclusion, Judge Cogburn found based on a close reading of the text of RFRA that it was clearly aimed to restricting enforcement actions by the government, and that a court decision in a lawsuit brought by a non-governmental litigant, such as Lonnie Billard, would not be subject to RFRA’s requirement that the government prove it had a compelling interest to enforce a federal law that burdens the defendant’s free exercise of religion. The court itself is not a “party” to a non-governmental lawsuit, and in the absence of a governmental party, the affirmative defense provisions of RFRA have no application.

Several lawsuits are pending around the country in which employees of Catholic institutions who were discharged over the same-sex marriage issue are seeking relief under Title VII. In many of them, the plaintiffs’ job duties were such as to bring them within the ministerial exception. Billard’s is the rare case that was not, at least according to Judge Cogburn’s analysis.

Having granted Billard summary judgment on the merits of his claim, Judge Cogburn ordered that the case “Proceed to trial to determine the appropriate relief that should be granted.” It is likely that to avoid a court order to reinstate Billard as a substitute teacher, the school may offer a substantial financial settlement. Title VII specifically lists “reinstatement” as a remedy for a wrongful discharge. If the case doesn’t settle and Judge Cogburn orders reinstatement, the school and the Roman Catholic Diocese of Charlotte, a co-defendant, are likely to appeal to the 4^th Circuit Court of Appeals.

Judge Cogburn was appointed to the court by President Barack Obama. In 2014, he wrote the decision striking down North Carolina’s ban on same-sex marriage, a decision that was upheld by the 4^th Circuit and denied review by the Supreme Court, and it was the decision that led Billard and Donham to decide to get married that led to this lawsuit!

District Court Rejects Constitutional Challenge to Washington State’s Conversion Therapy Ban

Posted on: September 2nd, 2021 by Art Leonard No Comments

Senior U.S. District Judge Robert J. Bryan has dismissed constitutional challenges to Washington State’s Conversion Therapy ban (codified in Wash. Rev. Code Sections 18.130.20 and 18.130.180) brought by Brian Tingley, a licensed Marriage and Family Therapist, who asserted a violation of his free speech and free exercise of religion rights, as well as alleging a violation of due process. Tingley v. Ferguson, 2021 WL 3861657, 2021 U.S. Dist. LEXIS 164063 (W.D. Wash., Aug. 30, 2021). Equal Rights Washington had intervened to help named defendants, Washington Attorney General Robert W. Ferguson and others, in defending the law. After Alliance Defending Freedom (ADF) filed suit on Tingley’s behalf, it sought a preliminary injunction against enforcement of the law, while defendants filed a motion to dismiss the case. Judge Bryan granted defendants’ dismissal motion, and denied intervenors’ dismissal motion and Tingley’s motion for preliminary injunction as moot. Judge Bryan’s ruling sets up the case for ADF to appeal, based on its argument that 9^th Circuit decisions rejecting similar challenges to California’s Conversion Therapy ban are no longer “good law” in light of the Supreme Court’s ruling in NIFLA v. Becerra, 138 S. Ct. 2361 (2018).

Tingley alleged that he has violated the Washington law by providing therapy sought by minors who were unhappy about their same-sex attractions or discomfort with their biological gender. Although his religious beliefs underly his opinions about sexual orientation and gender identity, he does not identify as a religious counselor who would be expressly exempted under the law. The court determined that Tingley had individual standing to bring his challenge, but not representative standing for his clients.

To cut to the quick, Judge Bryan held that the 9^th Circuit’s opinions in Pickup v. Brown, 740 F.3d 1208 (9^th Cir. 2014) and subsequent cases concerning the California law, are binding precedent in this case. The essence of ADF’s free speech argument is that the Supreme Court’s rejection of a distinct category of “professional speech” subject to a lesser standard of 1^st Amendment expression than other forms of speech in NIFLA v. Becerra had essentially overruled Pickup, and pressed home this point by citation to Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, 961 F.3d 1062 (9^th Cir. 2020), in which that court noted in a citation that NIFLA had “abrogated” Pickup. Not mentioned in Judge Bryan’s opinion is that Justice Clarence Thomas’s opinion for the Supreme Court in NIFLA spoke disparagingly about the treatment of “professional speech” in two conversion therapy cases, Pickup and King v. Governor of New Jersey, 767 F.3d 216 (3^rd Cir. 2014), a similar ruling upholding New Jersey’s conversion therapy law. Judge Bryan rejected this argument, finding that the basis of the Pickup ruling was a determination that the California law regulated professional conduct, the provision of a “therapy,” which incidentally involved speech, but the law was focused on the conduct, not the speech.

Bryan noted as well that the plaintiffs in Pickup and the New Jersey case had petitioned the Supreme Court after the NIFLA ruling to order the 9^th and 3^rd Circuits to recall their decisions concerning conversion therapy bans, but the Supreme Court rejected those petitions. See Pickup v. Newsom, 139 S. Ct. 2622 (petition denied, May 20, 2019); King v. Murphy, 139 S. Ct. 1567 (petition denied, April 15, 2019).

Conceptualized as a regulation of licensed professional conduct, wrote Bryan, “the Washington Conversion Law is subject to rational basis review, it is rationally related to the State’s asserted interest ‘in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harm caused by conversion therapy.’” Thus, the court found no violation of Tingley’s free speech rights.

On the Due Process claim, Bryan rejected Tingley’s assertion that the law was impermissibly vague, noting that the 9^th Circuit had rejected this argument in Pickup regarding the similarly-worded California statute and finding that a “reasonable person” could figure out that what was outlawed was therapy intended to “alter a minor patient’s sexual orientation” or gender identity. The 9^th Circuit did not find either of those terms to be vague, finding ample definitions in dictionaries as well as the definitional provisions of the statutes.

As to the Free Exercise argument, Judge Bryan found that the 9^th Circuit had rejected a similar argument in Welch v. Brown, 834 F. 3d 1041 (9^th Cir. 2016), a companion case decided by the 9^th Circuit together with Pickup. The law does not target religion. “Like in Welch,” wrote Bryan, “the object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation. Its object is to ‘protect the physical and psychological well-being of minors. . . The Conversion Law does not, either in practice or intent, regulate the way in which Plaintiff or anyone else practices their religion. Instead, it ‘regulates conduct only within the confines of the counselor-client relationship,’” citing Welch. “Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.”

Bryan also rejected ADF’s argument that because both speech and free exercise were implicated, under a “hybrid rights” doctrine the law was subject to a higher level of judicial scrutiny. “It is not clear that the hybrid rights exception ‘truly exists,’” he wrote, quoting the 9^th Circuit’s opinion in Parents for Privacy v. Barr, 949 F. 3d 1210 (2020), but even assuming that it does, “the doctrine would compel a higher level of scrutiny for claims that implicated multiple constitutional rights, in this case free exercise and free speech. Because the Court already established that Plaintiff’s claim does not implicate free speech, the hybrid rights exception does not apply and does not undermine the holding of Welch.”

ADF will certainly appeal this ruling to press the argument that NIFLA has “abrogated” Pickup and Welch and compels a ruling for their client on the free speech claim. Striking down Conversion Therapy bans is a major item on ADF’s anti-LGBTQ agenda.

Intervenor Equal Rights Washington is represented by National Center for Lesbian Rights and pro bono counsel Raegen Nicole Rasnic of Skellenger Bender, PS, Seattle. The court also received a brief on behalf of The Trevor Project, the Foundation for Suicide Prevention, and the American Association of Suicidology, identified as “Interested Partys.”

Judge Bryan was appointed to the court by President Ronald W. Reagan.

Federal Court Says Ohio Must Let Transgender People Correct Their Birth Certificates

Posted on: December 17th, 2020 by Art Leonard No Comments

U.S. District Judge Michael H. Watson ruled on December 16 that Ohio’s refusal to issue corrected birth certificates for transgender people violates the United States Constitution. Lambda Legal and the American Civil Liberties Union sued state officials on behalf of four transgender plaintiffs whose attempts to get their birth certificates changed to correctly identify their gender had been thwarted. Ray v. McCloud, Case No. 2:18-cv-272 (S.D. Ohio).

At the time Lambda sued two years ago, there were only three states that categorically prohibited such changes: Kansas, Ohio and Tennessee. Since then, Kansas has settled a Lambda Legal lawsuit by agreeing to change its policy. That leaves Tennessee as the last holdout.

However, Judge Watson’s opinion did not address what requirements Ohio may impose to determine whether a particular transgender individual may obtain a new birth certificate correctly reflecting their gender identity. Some jurisdictions require proof of surgical alteration or at least some clinical treatment, some others are satisfied with a doctor’s attestation as to gender identity, and some will accept a sworn declaration by the individual as to their correct gender identity. All that the judge held in this case was that the state cannot categorically refuse to make such changes under any circumstances.

This issue has had an inconsistent history in Ohio. State courts had turned down attempts by transgender individuals to get court orders to change their birth certificates for many years, but then the state did a turnabout and started allowing them until 2016, when it reverted to its former prohibition. Judge Watson noted that at least ten transgender people had actually obtained new birth certificates before the policy was changed. Since the statute governing birth certificates in Ohio does not even mention the issue but generally provides that a birth certificate can be corrected if information “has not been properly or accurately recorded,” the state claimed that it was now acting according to its interpretation of the statute as requiring a record that was correct at the time of birth.

Lambda’s complaint on behalf of Stacie Ray, Basil Argento, Ashley Breda and “Jane Doe” asserted that the state’s policy violated their Due Process privacy rights and their Equal Protection rights under the 14^th Amendment, as well as their Free Speech rights under the 1^st Amendment. Having ruled in favor of the plaintiffs on their 14^th Amendment claims, Judge Watson commented in a footnote that he would decline to analyze their 1^st Amendment claim.

At an earlier stage in the litigation, the court had refused to dismiss the case outright. The December 16 ruling granted summary judgment to the plaintiffs based on the evidentiary record. Each of the plaintiffs had explained how having a birth certificate that did not correctly reflect their gender identity caused practical problems for them, essentially misgendering them and “outing” them as transgender when they were required to provide their birth certificate. The court also noted the significant risk of harassment and physical violence that transgender people face as an important reason to allow them to obtain birth certificates that identify them correctly, citing a 2015 U.S. Transgender Survey showing that almost one-third of transgender individuals who had to use an identity document that misgendered them consequently suffered harassment, denial of benefits or services, discrimination, or physical assault.

The court found that because the fundamental right of privacy was involved, the standard of review for their Due Process claim is “strict scrutiny,” under which the state’s policy would be presumed to be unconstitutional unless it met the burden of showing a compelling justification. On the equal protection claim, Judge Watson found that many federal courts now agree that heightened scrutiny applies, under which the state must show an exceedingly persuasive reason for its policy. Courts use heightened scrutiny for sex discrimination claims, arguably making relevant the Supreme Court’s Bostock decision earlier this year, which held that discrimination because of transgender status is sex discrimination within the meaning of the federal anti-discrimination law, Title VII.

Either way, however, the court concluded that the policy must fall, because the state’s arguments didn’t even support a “rational basis” for what it was doing. Having allowed transgender people to get new birth certificates in the past, the state should have articulated a reason why it had changed that policy, but it could not credibly do so. What the court left unstated was the likelihood that the change in policy was entirely political.

The state’s attempt to argue that its interest in having accurate birth records required this categorical policy was fatally undermined by the fact that changes to birth certificates are made in many other circumstances. A person who gets a legal name change can get a new birth certificate showing their new legal name. After an adoption, a new birth certificate can be issued listing the adoptive parents instead of the birth parents. The court found that no persuasive justification had been offered for freely changing the information on birth certificates in these other circumstances but not for transgender people, especially in light of the difficulty and harm they suffered.

As noted, however, the court’s ruling was limited to the categorical ban, leaving yet to be determined the criteria Ohio was adopt for determining whether the change can be made in a particular case. Furthermore, the state could attempt to appeal this ruling to the 6^th Circuit Court of Appeals, but that court has already gone on record regarding gender identity discrimination as a form of sex discrimination in the case of the late Michigan transgender funeral director Aimee Stephens, who employment discrimination case was part of the Bostock decision by the Supreme Court.

Lambda Legal attorneys who worked on this case include Kara Ingelhart and Peter Renn. Malita Picasso and John Knight of the ACLU’s LGBT Rights Project and Freda Levenson, Susan Becker, Elizabeth Bonham and David Carey of the ACLU of Ohio were co-counsel, as well as pro bono counsel Jennifer Roach from Thompson Hine LLP.

Federal Court Orders State Department to Recognize Birthright Citizenship of Child Born Overseas to Married Gay Male Couple Through Gestational Surrogacy

Posted on: August 29th, 2020 by Art Leonard No Comments

A U.S. District Judge in Georgia issued a ruling on August 27 that a married male couple’s daughter, conceived through donor insemination from a donated egg with an English woman serving as gestational surrogate, should be deemed a natural-born U.S. citizen and entitled to a passport over the objections of the State Department. The complication in this case is that the spouse whose sperm was used was not a U.S. citizen at the time, although he since has become one through the marriage to his native-born U.S. citizen husband.

If this sounds familiar, it is because the case of Mize v. Pompeo, 2020 WL 5059253, 2020 U.S. Dist. LEXIS 156121 (N.D. Ga., Aug. 27, 2020), presents issues similar to those in Kiviti v. Pompeo, 2020 WL 3268221 (D. Md. June 17, 2020), decided a few months earlier by a federal court in Maryland, which also ordered the State Department to recognize the birthright citizenship of the child of a married gay couple.

This is a recurring problem encountered by married gay male couples who use a foreign surrogate to have their child overseas.

Under the 14^th Amendment of the Constitution, all persons born in the United States are citizens at birth, regardless of the nationality or citizenship status of their parents. By statute and court decision, the only people born in the U.S. who are not citizens at birth are children born to foreign diplomats stationed in the U.S. or temporary tourist or business visitors. The citizenship of children born overseas to U.S. citizens is determined by a statute, the Immigration and Nationality Act (INA).

Under the INA, there is a crucial distinction depending whether the child’s U.S. citizen parents are married to each other when the child is born. One provision concerns the overseas children of married U.S. citizens, and a different provision applies if the children are born “out of wedlock.” As interpreted by the State Department, if the parents are married, the child is a birthright citizen so long as it is biologically related to one of them. If the parents are not married, at least one them who is biologically related to the child must be a United States citizen who has resided in the U.S. for at least five years.

In this case, James Mize, a native-born U.S. citizen, and Jonathan Gregg, a British native, met when Gregg moved to the U.S. in 2014 and they subsequently married. They then decided to have a child together, and a British woman who was a friend of the couple agreed to be the gestational surrogate. They obtained an anonymously donated egg which was fertilized in vitro with Jonathan’s sperm, implanted in their friend, who bore the child in England in 2018. The local authorities issued a birth certificate recognizing the two men as the parents of the child, identified in court papers as SM-G. The men had moved to England before the child was conceived. After she was born, they applied for a U.S. passport and citizenship declaration, but the State Department refused to provide it. The Department treated the child as if she was born out of wedlock, since her biological parents were not married to each other, and found that her biological father, Gregg, had not resided in the United States as a citizen long enough to confer birthright citizenship on her. Mize is not her biological parent, so the Department was unwilling to recognize birthright citizenship based on Mize’s natural-born citizenship status.

These rules have proved to be a recurring issue for gay male couples who go out of the country to have children through surrogacy, as it has generated several lawsuits, and the State Department, while losing individual cases, has not modified its interpretation of the statute. Unsurprisingly, the Trump Administration has filed appeals of prior cases and there is no definite appellate interpretation yet.

Mize and Gregg sued the State Department, claiming that the denial of the passport and citizenship declaration for their daughter violated their 5^th Amendment constitutional rights, violated the INA, and also violated the Administrative Procedure Act.

Meanwhile, however, because of the citizenship status eventually acquired by Gregg through his marriage to Mize, their daughter ultimately acquired naturalized citizenship as the minor child of a naturalized citizen while this case was pending, and is living with the couple in Georgia. In addition to refusing to change its interpretation of the INA and moving for summary judgment as to that, the State Department also suggested that the case should be dismissed as moot, since the child now has a U.S. passport as a “naturalized” citizen by derivation from her biological father.

U.S. District Judge Michael Brown rejected the mootness argument before turning to the merits of the case in his August 27 opinion. He said that the dignitary harm suffered by the men in their marriage being deemed irrelevant for the purpose of their daughter’s citizenship status at birth kept this case from being moot.

On the merits, Judge Brown pointed out that as a matter of constitutional law, under the Supreme Court’s decisions in Obergefell v. Hodges in 2015 and Pavan v. Smith in 2017, same-sex marriages are supposed to be treated the same as opposite sex marriages for all purposes of law. They are entitled to the same rights and have the same responsibilities. However, if the INA can be interpreted to treat their daughter as a child “of the marriage,” then the provision concerning the children of married U.S. citizens would apply and there would be no requirement that the child be biologically related to both parents to be a birthright citizen, and the court would not have to address the constitutional issues.

Judge Brown found that the INA does not define what a child “of the marriage” is, leaving an ambiguity because the statutory language can be interpreted in more than one way. If the language is interpreted as the State Department insists, he found that would raise constitutional issues under the 5^th Amendment. Federal courts apply a doctrine of “constitutional avoidance.” They avoid having to decide questions about the constitutionality of a statute or its interpretation by the government if there is a reasonable way to interpret the statutory language to make the constitutional issues go away.

In this case, Judge Brown, in line with several prior district court decisions, concluded that such an interpretation is possible. The Mize-Gregg marriage is valid and must be recognized by the State Department, and the process by which Mize and Gregg decided to have a child through gestational surrogacy and carried out their plan supports the argument that SM-G is a child “of” their marriage in a practical sense. Thus, the court concluded, she was not born “out of wedlock,” and the requirement that she be biologically related to as U.S. parent with sufficient duration of residency under the “out of wedlock” provision would not apply.

Judge Brown granted summary judgment to Mize and Gregg as a matter of statutory interpretation, rendering it unnecessary to decide the constitutional questions, and he ordered the State Department to issue the documents for which the men had applied. He dismissed the Administrative Procedure Act claim as moot.

The State Department could decide to appeal this ruling, which would be consistent with the Trump Administration’s general tendency to fall in line with efforts by Christian conservatives to chip away at the legal status of same-sex marriages. Unsurprisingly, the Department filed an appeal of the Kiviti decision in the 4^th Circuit Court of Appeals on August 14, but in the normal course of things that appeal will probably not be argued for several months and a decision would be unlikely until sometime next year at the earliest. Meanwhile, the Trump Administration could consistently file an appeal in this case to “protect” its position about how to interpret the statute.

If Joe Biden is elected president, it is possible that the State Department would decide to protect the rights of same-sex couples and their children by revising the Foreign Affairs Manual to adopt an interpretation consistent with the court’s rulings for the guidance of U.S. consulates and embassies that receive these sorts of applications when children are born to U.S. citizens overseas.

Immigration Equality and Lambda Legal are representing Mize and Gregg, as they are also representing the plaintiffs in the Kiviti case.

North Carolina Federal Court Refuses to Dismiss Challenge to North Carolina’s Exclusion of Coverage for Gender Transition from State Employee Medical Plan

Posted on: April 5th, 2020 by Art Leonard No Comments

On March 11, U.S District Judge Loretta C. Biggs denied the state’s motion to dismiss a lawsuit brought by Lambda Legal claiming that the State Health Plan’s categorical exclusion of coverage for treatment sought “in conjunction with proposed gender transformation” or “in connection with sex changes or modifications” violates the Equal Protection Clause, Title IX, and Section 1557 of the Affordable Care Act (ACA). Kadel v. Folwell, 2020 WL 1169271, 2020 U.S. Dist. LEXIS 42586 (M.D.N.C.). The state university defendants had moved to dismiss the Title IX claim, and the State Health Plan defendants had moved to dismiss the Equal Protection and ACA claims. The plaintiffs are all current or former employees of the university defendants, or dependents of university employees, which were all enrolled in the Plan and are the parents of transgender individuals who have been diagnosed with gender dysphoria and are seeking treatment that is categorically excluded from coverage under the Plan.

The plaintiffs jointly allege that since the 1980s the Health Plan covering employees of the state university and their dependents has denied coverage for medically necessary treatment if the need stems from gender dysphoria, as opposed to some other condition. Thus, a cisgender woman’s medically necessary mastectomy would be covered, but a transgender man’s mastectomy for purpose of gender transition would not be covered. With the exception of 2017, this exclusionary policy has been in effect. Third party administrators retained by the employers to administer the plans – Blue Cross Blue Shield of North Carolina (claims administrator) and CBS Caremark (pharmaceuticals) – sell this kind of coverage to other employers, this it would be possible for the state to include such coverage using their current administrators, who are experienced in dealing with such claims.

The statutory causes of action (Title IX and ACA) would require the court to conclude that discrimination because of gender identity is covered under the statutory prohibition of sex discrimination, while the constitutional claim would require a finding that gender identity discrimination claims are actionable under the Equal Protection Clause of the 14th Amendment.

Judge Biggs turned first to the statutory claims in her analysis. She first rejected the state university’s claim that the suit should not be against them, because the state government dictates the content of their employee benefits plans. She found that the defendants “offer” the plan to plaintiffs, and “participate” (or participated) in its availability. “Indeed,” she wrote, “had University Defendants not hired Plaintiffs, they would not have been permitted to enroll in the Plan at all. The Court finds, at this stage, those facts provide a sufficient nexus between the alleged injuries the University Defendants.” Also, responding to the University’s argument that a ruling against them would not redress the plaintiffs’ claims because the defendants are bound by state policy, Biggs wrote that “there are other wahys in which a favorable ruling on Plaintiffs’ Title IX claim could give them the relief they seek. First, Plaintiffs have asked for – and ‘personally would benefit in a tangible way’ from – an award of damages.” Further, she noted, the university defendants might offer supplemental coverage beyond what the state Plan provides. She also rejected defendant’s arguments that since some of the Plaintiffs are not themselves transgender, their injuries are only indirect, because the minor plaintiffs’ “only ties” to the university are through their parents’ employment. Judge Biggs found that the parents were in this case within the class of plaintiffs protected by Title IX.

Turning to the argument that gender identity claims are not cognizable under Title IX, Biggs took note of the fact that the Supreme Court was considering whether Title VII covers gender identity discrimination claims in R.G. & G.R. Harris Funeral Homes v. EEOC, No. 18-107, which was argued on October 8, 2019, and had not been decided yet. The defendants argued that this case should be put “on hold” until a Supreme Court ruling was issued. “Because courts in this circuit often look to Title VII when construing like terms in Title IX,” she noted, “the Supreme Court’s decision could potentially impact the viability of the Title IX claim in this case. At this time, however, this Court is left to make its own determination as to whether discrimination ‘on the basis of sex’ encompasses discrimination on the basis of transgender status,” and she noted Grimm v. Gloucester County School Board, 302 F. Supp. 3d 730 (E.D. Va. 2018) and M.A.B. v. Board of Education of Talbot City, 286 F. Supp. 3d 704 (D. Md. 2918), in which other district courts also within the 4th Circuit have ruled that such claims are covered by Title IX. Biggs wrote that she “agrees with their reasoning and follows it here.” She also noted that some other district courts in other circuits have faced similar arguments challenging transgender exclusions under state employee benefit plans, and have ruled against the employing states in those cases.

“University Defendants do not seriously contest that discrimination because of transgender status is discrimination because of sex (although State Defendants do),” she wrote. “Rather, in moving to dismiss for failure to state a claim, they simply rephrase their arguments related to standing. There is no dispute that ‘a recipient of federal funds may be liable in damages under Title IX only for its own misconduct; the parties just disagree over whether University Defendants’ conduct is sufficiently implicated in this case.” Biggs held that “at this stage” in the litigation, the plaintiffs’ allegations concerning the university defendants’ role in providing benefits to their employees are sufficient both for standing and for the Title IX claim, and denied the motion to dismiss the Title IX claim.

Turning to the ACA claim, the state defendants argued sovereign immunity. “Section 1557 does not purport to condition a state’s acceptance of federal funding on a waiver of sovereign immunity,” she wrote. “Nor does any other provision of the ACA. However, in the Civil Rights Remedies Equalization Act of 1986 (CREA), Congress explicitly stated that a state shall not be immune from suit in federal court ‘for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal assistance.” The 4th Circuit found clear congressional intent to waive the state’s sovereign immunity if they accepted money in programs that prohibit discrimination. The state’s response was that the lack of mention of gender identity or transgender status in Section 1557 shows that North Carolina did not “knowingly” waive its sovereign immunity with respect to discrimination claims on these bases. Disagreeing, Biggs wrote that the state’s potential exposure to such suits should not have been “surprising,” because “courts across the country have acknowledged for decades that sex discrimination can encompass discrimination against transgender plaintiffs. Further, as a general matter, ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,’” citing Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1999). She asserted that surely the state would agree that Title IX covers sexual harassment claims, even though the word “harassment” does not appear in the statute. “By the same token, Section 1557 need not include the precise phrasing State Defendants demand to provide sufficient notice of a condition of waiver.”

Turning to the constitutional claim, asserted against specific state officials in their official capacity, she found convincing the case law supporting heightened scrutiny for gender identity discrimination claims as being essentially sex discrimination claims. “On its face,” she wrote, “the Exclusion bars coverage for ‘treatment in conjunction with proposed gender transformation’ and ‘sex changes or modifications.’ The characteristics of sex and gender are directly implicated; it is impossible to refer to the Exclusion without referring to them. State Defendants attempt to frame the Exclusion as one focused on ‘medical diagnoses, not . . . gender.’ However, the diagnosis at issue – gender dysphoria – only results from a discrepancy between assigned sex and gender identity. In short, the Exclusion facially discriminates on the basis of gender, and heightened scrutiny applies.” And, quoting from United States v. Virginia, 518 U.S. 515 (1996), she wrote, “A policy that classifies on the basis of gender violates the Equal Protection Clause unless the state can provide an ‘exceedingly persuasive justification’ for the classification.” [Thank-you, Justice Ginsburg!] Judge Biggs found that at this stage in the litigation, “State Defendants have failed to satisfy this demanding standard” and, in fact, “the only justification presented thus far is that the Exclusion ‘saves money.’ Under ordinary rational basis review, that could potentially be enough to thwart Plaintiffs’ claim. However, when heightened scrutiny applies, ‘a State may not protect the public fisc by drawing an invidious distinction between classes of its citizens,’” quoting from Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974).

Next, Judge Biggs rejected the state defendants’ argument as a ground for dismissal the plaintiffs’ failure to join the Health Plan’s Board of Trustees as a required party, as they would have to vote to make any change in the Plan that would be required to repeal the Exclusion. She found that the state defendants “share primary responsibility for the operation and administration of the Plan” so an award of declaratory, injunctive and monetary remedies against them would “give plaintiffs all the relief they seek.”

Finally, rejecting defendants’ request that the action be stayed pending the Supreme Court’s ruling in Harris Funeral Homes, Judge Biggs pointed out that “the potential harm to Plaintiffs resulting from even a mild delay is significant, as they will continue to be denied healthcare coverage for medically necessary procedures. In contrast, the ‘harm’ to Defendants of not staying this case appears to be nothing more than the inconvenience of having to begin discovery.” This is obvious. Since discovery hasn’t begun yet, there is no chance this case would be ready for a motion for summary judgment for many months, and the Supreme Court will likely rule in Harris by the end of June. “Judicial economy is, of course, a consideration,” wrote Biggs. However, this case is in its infancy, and it may be months before a decision issued in Harris – a substantial delay for those seeking to vindicate their civil rights. Given the ongoing harm to Plaintiffs and Defendants’ failure to present ‘clear and convincing circumstances’ outweighing that harm, this Court declines to exercise its discretion to stay the proceedings.”

Thus, pending motions to dismiss are all denied. As of the end of March, the defendants had not petitioned the 4th Circuit for a stay.

Counsel for plaintiffs include Deepika H. Ravi, of Harris, Wiltshire & Grannis LLP, Washington, DC; Meredith T. Brown and Tara L. Borelli, Lambda Legal Defense And Education Fund, Inc., Atlanta, GA; Noah E. Lewis, of Transgender Legal Defense & Education Fund, Inc.; Omar F. Gonzalez-Pagan, Lambda Legal Defense And Education Fund, Inc., New York, NY; and Amy E. Richardson, Wiltshire & Grannis LLP, Raleigh, NC (local counsel).

Supreme Court Agrees to Review Catholic Foster Care Agency’s Claimed Right to Discriminate Against Same-Sex Couples

Posted on: February 24th, 2020 by Art Leonard No Comments

The U.S. Supreme Court announced on February 24 that it will review a 2019 ruling by the U.S. Court of Appeals for the 3^rd Circuit, in which that court rejected 1^st Amendment claims by the Catholic Social Services agency in Philadelphia that lost its foster services contract with the City by insisting it would refuse to provide services to same-sex couples. The unanimous appeals court decision affirmed a ruling by U.S. District Judge Petresse B. Tucker rejecting a request by the Agency for a preliminary injunction against the City. Fulton v. City of Philadelphia, 922 F.3d 140 (3^rd Cir. 2019), petition for certiorari granted, No. 19-123, 2020 WL 871694 (February 24, 2020).

Because the Supreme Court’s last argument date of its current Term is April 29, this case won’t be argued until the Fall Term of the Court beginning in October. The Petitioners have 45 days to file their principal brief, and then the Respondents have 30 days to file their principal brief, with the Petitioners then authorized to file a rely brief. By the time briefing is complete, the Court will have stopped hearing arguments for this Term.

The organizational Petitioner is Catholic Social Services (CSS), an agency affiliated with the Archdiocese of Philadelphia, which has contracted with the City to perform foster care services for more than a century. CSS was one of 30 foster care agencies that were under contract with the City when this dispute arose, of which all but a handful are religiously affiliated. All the agencies have one-year contracts that are routinely renewed from year to year, but CSS’s contract was not renewed as a result of this dispute.

This case was sparked in March 2018 by a reporter for the Philadelphia Inquirer who was researching an article about the timely topic of whether religiously affiliated child-care agencies were recognizing and working with married same-sex couples. The reporter called the City’s Department of Human Services to report that two foster care agencies, CSS and Bethany Christian Services, had stated that they would not certify same-sex couples to be foster parents, and that the newspaper would be reporting this in a forthcoming article. All of the other religious agencies contacted had stated that they did work with same-sex couples.

CSS’s position, communicated to the reporters and then to City officials, was that consistent with Catholic doctrine they would certify only single people or married couples to be foster parents, and consistent with Catholic doctrine they did not recognize same-sex couples as married, even when the couples had a civil marriage under the state law. After the article appeared on March 15, the City Council passed a resolution calling on the City Commission on Human Relations to investigate the Department of Human Services policies on contracting with social service agencies that discriminate against LGBTQ foster parents, pointing out that “the City of Philadelphia has laws in place to protect its people from discrimination that occurs under the guise of religious freedom.” The resolution said that any agency violating DHS rules and the City’s Fair Practices Ordinance should have their contract “terminated with all deliberate speed.”

City officials tried to negotiate a way around this problem with CSS and Bethany. Ultimately, Bethany agreed to change its policy, but CSS refused. As a result, the Department of Human Services put a “freeze” on referrals to CSS, and the City sent CSS an ultimatum: either agree not to discriminate against same-sex couples, or the freeze would continue until their contract expired and the City would not renew the contract. The City also indicated that it was revising its foster care service contracts to make clear that agencies could not discriminate based on grounds prohibited by the City’s anti-discrimination law.

CSS decided to fight back through a lawsuit, enlisting some foster parents as co-plaintiffs, represented by the Archdiocese’s usual legal counsel joined by attorneys from the Becket Fund for Religious Liberty, a religious advocacy group that frequently litigates on these kinds of issues.

Ironically, CSS claims that it has never been approached over the past century that it has been doing this work under City contracts by any same-sex couple. It also stated that if a same-sex couple approached CSS, they would refer the couple to another agency, and that such referrals among agencies are routine. While the City acknowledges that agencies do refer couples to other agencies, it asserted that this would be illegal if the reason for the referral was a refusal to deal with a couple who are in a “protected class” under the City’s anti-discrimination law.

The CSS lawsuit made several claims. They asserted that the City’s anti-discrimination ordinance, which forbids sexual orientation discrimination, did not apply to them because their agency is not a “public accommodation.” They claimed that under the Free Exercise Clause of the First Amendment, they had a right to deny services to same-sex couples on religious grounds. They also made a “selective enforcement” claim, asserting a violation of the Establishment Clause, claiming that they were being targeted by the City as a Catholic agency, and that the City was retaliating against them because of their religious views. Finally, they claimed that requiring them to certify same-sex couples as qualified to be foster parents would be a form of compelled speech prohibited by the First Amendment Freedom of Speech Clause. CSS sought a temporary restraining order or a preliminary injunction requiring the City to “unfreeze” their status as a foster care provider while the case was being litigated.

The American Civil Liberties Union (ACLU) got involved in the case as legal representative of Support Center for Child Advocates and Philadelphia Family Pride, which intervened in the case as a co-defendant with the City, and is named as a co-Respondent on the Supreme Court Petition. ACLU attorney Leslie Cooper participated in the hearing before the 3rd Circuit together with Jane Istvan, the City’s Chief Deputy Solicitor.

District Judge Tucker rejected CSS’s demand for preliminary relief. She found that they did not have a likelihood of winning the case, and that the City’s strong interest in enforcing its anti-discrimination policy was likely to prevail. CSS asked the 3^rd Circuit to provide interim relief, which that court denied, and then petitioned the Supreme Court for interim relief, which that Court also denied without comment. On April 22, 2019, the 3^rd Circuit issued an opinion affirming the refusal of the District Court to issue an injunction against the City. The 3^rd Circuit’s three-judge panel found that CSS’s 1^st Amendment arguments were all without merit, relying heavily on the Supreme Court’s 1990 decision, Employment Division of Oregon v. Smith, 494 U.S. 872. The 3^rd Circuit panel included two judges appointed by President Bill Clinton and one appointed by President Ronald Reagan.

In the Smith case, the Supreme Court dealt with a claim by two men who were denied unemployment benefits after their employer fired them for flunking a drug test. The employer had a zero-tolerance policy on drugs. The employees said that their positive tests resulted from using peyote, a hallucinogen, during a Native American religious ceremony, arguing that denial of unemployment benefits by the government violated their right to free exercise of religion since their use of peyote should be considered constitutionally protected under the Free Exercise Clause.

Under the Supreme Court’s 1^st Amendment jurisprudence up to that time, an application of a state law that substantially burdened a person’s free exercise of religion was considered a violation of a fundamental right, which could only be upheld if the government met the burden of showing a compelling state interest and a policy narrowly tailored to advance that interest. Writing for the Court, Justice Antonin Scalia, a devout Catholic, rejected the employees’ argument in an opinion that marked a radical change in 1^st Amendment law. His opinion held that individuals may not assert a Free Exercise claim against a “neutral state law of general application.” If the state law did not target religion and was applied generally, the state did not have a burden to justify it against an individual’s free exercise of religion claim. Scalia embraced the argument that letting people claim exemptions from complying with generally applicable state laws would substantially undermine the rule of law, leaving individuals free to decide which laws they could ignore, a chaotic situation.

The Court’s opinion unleashed a storm of controversy. Congress attempted to overrule it with bipartisan legislation called the Religious Freedom Restoration Act (RFRA), which in its first version purported to restore 1^st Amendment free exercise jurisprudence to where it was before the Court’s decision. The Court then ruled that Congress did not have authority to overrule a constitutional decision, although Congress could enact restrictions on its own legislative power. Congress promptly enacted a new version of RFRA, under which individuals whose free exercise is substantially burdened by the application of a federal statute or regulation can raise a statutory defense similar to the constitutional test used before Smith. Many states adopted similar laws, including Pennsylvania.

The 3^rd Circuit’s decision on CSS’s appeal rejected a claim under the Pennsylvania Religious Freedom law, concluding that the Pennsylvania courts would not likely rule in favor of CSS’s position under the state statute. That ruling is not part of the appeal to the Supreme Court.

Smith has remained a controversial decision, and several justices of the Supreme Court have suggested that the Court should reconsider that ruling. In its Petition in this case, CSS asked the Court to “revisit” that case, and the Court’s grant of review includes that question. Reconsideration of that principle – that individuals do not have a free exercise right to refuse to comply with neutral laws of general application – could create a substantial religious exemption that would be particularly harmful to the LGBTQ community in seeking protection against discrimination because of sexual orientation or gender identity.

The foster care situation in Philadelphia illustrates this point starkly. Of the 30 foster care agencies that were contracting with the City when this case began, all but a handful were religiously affiliated. Although only two said they would not deal with same-sex couples when they were contacted by the Philadelphia Human Rights Commission in the wake of the Inquirer’s article, it is unclear how many religiously affiliated agencies would provide the services if they thought they had a right to refuse under the 1^st Amendment.

In its ruling in this case, the 3^rd Circuit faced CSS’s argument that its treatment by the City showed “hostility to religion,” seeking to invoke the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), in which the Court overturned a state ruling that a baker violated the Colorado civil rights law by refusing to make a wedding cake for a same-sex couple. In that case, the Supreme Court reiterated that general rule from Smith but found that the Colorado Civil Rights Commission acted inconsistently in dealing with religious freedom claims and that some members of the Commission had made remarks hostile to religion, denying the baker a “neutral forum” to consider his defense to the discrimination charge.

The 3^rd Circuit rejected CSS’s argument, finding that remarks by City officials, including the Mayor, did not fall within the scope of “hostility” described in the Masterpiece decision. “CSS’s theme devolves to this,” wrote Judge Thomas Ambro for the court. “The City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of Smith that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements.” And specifically addressing CSS’s reliance on particular statements by City officials, Ambro wrote: “If all comment on religious motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well.”

The other questions put to the Supreme Court by the CSS Petition sought to get the Court’s attention by pointing out different approaches by the federal appeals courts to deciding how to determine whether the government was discriminating because of religion in its enforcement activity, and asked, more directly, “Whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs?”

The Supreme Court already has cases scheduled for hearing this Term that could provide a vehicle to narrow or overrule Smith, and it is a bit odd that it granted review in this case instead of “holding” the Petition until after it issues its other rulings. On the other hand, CSS also argued that the 3^rd Circuit’s decision was a misapplication of Smith, so perhaps the Court saw a reason to treat this case differently.

The 3^rd Circuit appeal attracted sixteen amicus briefs, mostly representing the views of organizations arrayed on each side of the religious freedom issue, including more liberal or progressive religious groups opposing CSS’s 1^st Amendment claims. Eight states joined in an amicus brief filed by the Texas Attorney General supporting the CSS claim. Seventeen states and the District of Columbia joined in an amicus brief filed by out lesbian Massachusetts Attorney General Maura Healey, siding with the City of Philadelphia. All the major LGBTQ-rights legal organizations joined briefs supporting the City.

The groups that filed briefs in the Masterpiece Cakeshop case two years ago will flock to get their views on record in this case, the first LGBTQ-related case added to next Term’s docket. Meanwhile, Court-watchers await rulings on three LGBTQ-related antidiscrimination cases under Title VII of the Civil Rights Act of 1964, argued before the Court on October 8, 2019.

Federal Court in Trans Military Case Refuses to Delay Discovery Further

Posted on: February 10th, 2020 by Art Leonard No Comments

On Friday, February 7, US District Judge Marsha Pechman issued yet another in a series of Orders on discovery in Karnoski v. Trump, 2020 U.S. Dist. LEXIS 21813 (W.D. Wash.), one of the four challenges to the constitutionality of Trump’s transgender military service ban in its current incarnation, referred to as the Mattis Plan.

Pechman, backed up by a 9th Circuit panel, has determined that the ban discriminates based on gender identity and is subject to heightened scrutiny under the 5th Amendment’s equal protection requirement, and judging from this opinion she is clearly getting fed up by the Justice Department’s delay strategy in the case.

Since the Supreme Court stayed Judge Pechman’s preliminary injunction (and ultimately, all the preliminary injunctions were lifted), the Mattis Plan went into effect last April while the litigation continues, including clear discrimination against applicants and service members due to their gender identity. The Justice Department’s strategy now is to avoid a merits ruling against the government by stretching out discovery as long as possible.

The district courts have already determined that various deliberative process privilege claims asserted by the government are invalid in this suit, where the question boils down to whether the Mattis Plan is an expression of ideology, pure and simple, or rather is based on objective facts. Only discovery of internal communications and sources allegedly relied upon in formulating the policy can reveal the answer to the degree necessary to constitute proof in a court. But they keep stalling.

Judge Pechman issued an order late last year compelling certain disclosure by a date specified in December. Rather than comply, the Justice Department moved for “clarification” and a “stay pending appeal.” That is, they want to keep off responding as long as they can, and then get the court to delay further while they appeal every discovery ruling to the 9th Circuit, building in several more months for delay.

Pechman is having none of it: Her February 7 order provides some “clarification” and denies the stay. “Because Plaintiffs have overcome the deliberate process privilege for these documents and this dispute has been pending for nearly two years, the Court will not issue a stay for an unspecified amount of time while Defendants decide whether to appeal,” she wrote. “This is an ongoing process and until the process is complete it is wasteful to appeal one segment at a time.” She also pointed out that the government missed a 14-day deadline if it wanted her to reconsider her prior discovery order. She ordered the government to produce all the documents covered by the order by February 14.

Karnoski and co-plaintiffs are represented by Lambda Legal and Outserve-SLDN (so named when the case was filed, now the Modern Military Association).

New York Federal Judge Vacates Trump Administration “Conscience” Regulation

Posted on: November 12th, 2019 by Art Leonard No Comments

U.S. District Judge Paul A. Engelmayer issued an extraordinarily lengthy opinion on November 6, concluding that a regulation adopted by the Trump Administration’s Department of Health and Human Services (HHS) intended to protect from discrimination employees in the health care industry who refused to provide services because of their religious beliefs is invalid. The case is State of New York v. U.S. Department of Health and Human Services, 2019 WL 5781789, 2019 U.S. Dist. LEXIS 193207 (S.D.N.Y.).

The lawsuit was brought by a coalition of states, cities, Planned Parenthood, and a Family Planning and Reproductive Health services organization, that stood to lose substantial federal funding for their programs if they were found to violate the regulation, which imposed substantial compliance requirements on them. They argued that the measure violated the First Amendment’s prohibition on an “establishment of religion.” But Judge Engelmayer, rejecting a “facial” Establishment Clause challenge, instead premised his ruling on other arguments by the plaintiffs, asserting violations of the Administrative Procedure Act (APA) and the Spending Clause and Separation of Powers requirements of the Constitution.

Judge Engelmayer summarized the Rule, which was adopted on May 21 (84 Fed. Reg. 23,170 – codified at 45 C.F.R. pt. 88), originally set to go into effect on July 22, to “interpret and provide for the implementation of more than 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures, programs, services, or research activities on account of a religious or moral objection.” The statutory provisions, usually added to particular laws as amendments offered by legislators during congressional consideration of the bills, are usually referred to as “conscience provisions.” After this lawsuit was filed, HHS agreed to delay the effective date of the regulation until November 22, so it has never actually gone into effect and will not go into effect any time soon unless the government obtains a stay of Judge Engelmayer’s opinion pending an appeal.

Most of the conscience provisions are intended to protect employees who refuse to participate in performing abortions, sterilizations, or assisted suicides, but some go further, extending to any medical practice or procedure, and theoretically could protect employees who refuse to provide services to LGBTQ people due to religious or moral objections. While some of the provisions were aimed specifically at licensed health care professional employees who actually perform such procedures, others could theoretically apply to any employee – such as an orderly, an ambulance driver, or anybody else employed in a supportive or administrative role – whose religious or moral beliefs would be compromised by providing the service in question.

In addition to describing the various statutory conscience provisions, Judge Engelmayer noted a provision in Title VII of the Civil Rights Act of 1964, which requires employers to make a “reasonable accommodation” to the religious practices or beliefs of employees, with the test of reasonableness being whether the accommodation would impose an undue hardship on the employer. The Supreme Court has traditionally interpreted this provision to require employers to bear no more than a “de minimus” expense to accommodate religious objectors.

The George W. Bush administration promulgated a conscience regulation late in 2008 that was to take effect on the first day of the Obama Administration, but a legal challenge was filed and although “much of the rule” did take effect while the litigation continued, many contentious provisions were never rigorously enforced and HHS rescinded much of that Rule in 2011.

After taking office, President Trump issued an executive order titled “Promoting Free Speech and Religious Liberty,” which directed the Attorney General to “issue guidance interpreting religious liberty protections in federal law” and generally stating that the federal government should protect religious freedom to the extent possible under the Constitution. On October 6, 2017, Attorney General Jeff Sessions issued a memorandum proclaiming that under the 1^st Amendment’s Free Exercise Clause, an individual has “the right to perform or abstain from performing certain physical acts in according with one’s beliefs,” mentioning many of the statutory conscience provisions. HHS then proceeded to issue a notice of proposed ruling-making to translate Sessions’ memorandum into written regulations, publishing its “final rule” on May 21, 2019.

Judge Engelmayer found that the 2019 Rule “substantially expands” on the 2008 Rule, applying to more than 30 conscience provisions (where the 2008 Rule applied to only three of them). He includes a detailed description of the Rule, including its very broad definition of which employees and entities are covered, a very broad definition of what counts as “discrimination,” and detailed procedures that employers in the health care field are supposed to follow to ensure that employees know about their rights to object or abstain, including requirements to certify their compliance with the Rule as a condition of receiving funding under federal programs, such as Medicare. The stated intent of the Rules is to go as far as the Constitution and statutes allow in protecting those who object to doing their job because of religious, moral or ethical objections to particular procedures or practices by holding the loss of funding over employers who fail to accommodate religious objectors to the extent spelled out in the Rule.

The plaintiffs advanced five constitutional arguments against the rule. They first argued that it violates the Establishment Clause, by forcing recipients of federal funds to “conform their business practices to the religious practices of their employees, imposing an absolute duty to accommodate such practices,” going far beyond the existing accommodation duty under Title VII of the Civil Rights Act. Second, they argued it violates the Spending Clause because the threat to withhold all federal funding for is “unconstitutionally coercive” and because the conditions it imposes are “ambiguous, retroactive, not reasonably related to the purpose of HHS’s programs under which the funds are provided, and thus unconstitutional.” They argued that the Rule violates the constitutional separation of powers by, among other things, empowering the executive branch to unconstitutionally impound funds that Congress has appropriated. They also made two Fifth Amendment arguments: void for vagueness as a result of ambiguities and inconsistences with other federal laws, inviting arbitrary enforcement; and violating the due process rights of patients to privacy and liberty, in particular by interfering with patients’ ability to obtain abortions and other procedures to which some health care workers object.

Judge Engelmayer rejected the government’s argument that the rule was merely a “housekeeping” measure intended to consolidate enforcement of the various statutory conscience provisions by centralizing enforcement in HHS’s Office of Civil Rights and to standardize definitions and requirements that varied among the thirty statutes. Instead, he found, the Rule made substantive changes in the law.

“On this threshold dispute,” wrote the judge, “there is a definite answer. Although the 2019 Rule has housekeeping features, plaintiffs’ description of it as largely substantive – and, indeed, in key respects transformative—is correct. And HHS’s characterization of the Rule as solely ministerial cannot be taken seriously.” He noted that the government had actually abandoned this position during oral argument. “Whether or not the rule was properly adopted,” he wrote, it “unavoidably would shape the primary conduct of participants through the health care industry. It would upend the legal status quo with respect to the circumstances and manner in which conscience objections must be accommodated. And the maximum penalty the Rule authorizes for a violation of the Conscience Provisions – the termination of all of a recipient’s HHS funding, from whatever program derived – is new, too.”

Supporting this conclusion, Judge Englemayer explained how the rule vastly expanded employers’ religious accommodation requirements under Title VII of the Civil Rights Act, how it substantially broadened the definition of “protected activities” of religious objectors, down to the level of protecting a receptionist who might refuse to schedule a patient for a procedure to which the receptionist has ethical objections. Unlike the statutory conscience provisions, he noted, the Rule would “for the first time” permit “abstention from activities ancillary to a medical procedure, including ones that occur on days other than that of the procedure.” It also extended the definition of “covered entities” from health care providers to pharmacists and medical laboratories, and significantly expands the financial exposure of covered entities by authorizing draconian cut-offs of funding.

Judge Engelmayer decided the Rule is not a facial violation of the Establishment Clause, which would require finding that all of its provisions are unconstitutional in all their potential applications, but he acknowledged that it could be challenged “as applied” to particular situations – a test that might never arise because of his action in declaring the Rule invalid on other grounds.

First, the judge found that HHS did not comply with the requirements of the Administrative Procedure Act governing the adoption of regulations, by going beyond the limits of rulemaking authority. Agencies must base their rules and regulations on statutory policy decisions expressed by Congress, and cannot engage in legislating beyond those policy decisions. The judge found that in this Rule HHS went over the line into legislation, especially noting the way the Rule expanded definitions, covered entities, enforcement authority, and penalties. He found that HHS did not have authority under the APA to make all of these substantive legal changes without specific authorization in the statutes.

The sheer scale of the Rule’s potential impact played a large part in the decision. The judge found that the Rule “puts in jeopardy billions of dollars in federal health care funds. In fiscal year 2018, for example,” he wrote, “the State Plaintiffs received $200 billion in federal health care funding. New York alone received $46.9 billion. The Provider Plaintiffs similarly received hundreds of millions in funding from HHS.” He also noted the political significance of the Rule, as it took positions beyond those actually taken by Congress on such controversial issues as abortion and assisted suicide.

“In a case involving economic consequences and political dynamics on such a scale,” wrote the judge, “the Supreme Court teaches that ‘we expect Congress to speak clearly’ were it to delegate rulemaking authority. . . Far from speaking clearly here, in none of the three statutes at issue did Congress give any indication that it intended to subcontract the process of legal standard-setting to an administrative agency in particular, or HHS in particularly,” noting that the three principal statutes with Conscience Provisions don’t even mention HHS. And, the judge rejected the government’s contention that such a delegation was “implicit” in the enactment of those conscience provisions. He noted that the Supreme Court had rejected a similar “implicit delegation” argument in connection with its interpretation of Title VII’s accommodation provisions and the attempts by the EEOC to interpret them.

He also concluded that HHS did not act in accordance with law in promulgating the rule, having taken shortcuts (rather typical of the Trump Administration) in skirting the detailed procedures set out in the APA. The two most important flaws the court found were establishing rules that conflict with Title VII, and rules conflicting with the Emergency Medical Treatment and Labor Act (EMTLA), by purporting to authorize employees with religious objections to withhold services in emergency situations. The judge found that two basic Title VII concepts that the Rule “overrides” are key components of the specific language Congress adopted in 1972 amendments to Title VII “to address workplace religious objections.” An agency cannot displace express statutory provisions by adopting a contrary rule. Similarly, he noted that EMTLA “does not include any exception for religious or moral refusals to provide emergency care” and courts had declined to “read in” exceptions to that statute’s mandates, but the HHS Rule “applies in emergency-care situations,” purporting to create a “conscience exception” in a law that does not have one.

Also, turning to the APA’s substantive requirements, an agency that is adopting a rule that changes the law is required to document the need for such a change. In this case, HHS just lied, claiming that there had been a substantial increase in complaints by health care employees about being forced to perform objectionable procedures or being disciplined for refusing to do so. “In fact, upon the Court’s review of the complaints on which HHS relies,” wrote Engelmayer, “virtually none address the Conscience Provisions at all, let alone indicate a deficiency in the agency’s enforcement capabilities as to these laws. And HHS, in this litigation, admitted that only a tiny fraction of the complaints that its Rule invoked as support were even relevant to the Conscience Provisions. A Court ‘cannot ignore the disconnect between the decision made and the explanations given,’” he wrote, quoting from Chief Justice John Roberts’ opinion in June striking down the Trump Administration’s attempt to add citizenship questions to the 2020 Census Forms. In that case, the Supreme Court found evidence that the Administration wanted to add the questions for political purposes, but prompted the Justice Department to come up with a phony justification invoking data needs to enforce the Voting Rights Act, even though experts in the Census Bureau warned that adding the questions would make the Census count less accurate by deterring non-citizens resident in the U.S. from participating. He pointed out that the large majority of religiously-connected complaints received by HHS had to do with vaccinations, “which HHS admits fall outside the scope of the Conscience Provisions and the Rule.”

He also found unconvincing other explanations offered by HHS, and was especially critical of ways in which the Final Rule differed from the Rule as it was originally proposed and published for public comment concerning the definition of “discrimination.” The judge concluded, in sum, that failed procedures in adopting the Rule under the APA were sufficient to invoke the court’s authority to declare the rule invalid and order it to be “vacated.”

But there was more, because the judge also found constitutional violations both of separation of powers and the Spending Clause.

Judge Engelmayer focused on the Rule’s remedial provision authorizing the termination of all HHS funding to an entity found to have violated the Rule, finding that this had not been authorized by Congress. Thus, its adoption was a serious violation of the separation of powers. He agreed with plaintiffs that the Rule “is inconsistent with the separation of powers because it allows HHS to withhold congressionally-appropriated federal funds to an extent that neither the [statutory] Conscience Provisions nor any other statute authorizes. By claiming the power to do so, plaintiffs argue, HHS arrogates to itself, an executive agency, a power the Constitution allocates uniquely to Congress.”

Responding to this argument, the judge pointed out that an agency “must exercise its delegated spending authority consistent with specific congressional grant” and that an “agency may not withhold funds in a manner, or to an extent, unauthorized by Congress.” Thus, the remedial provision of the Rule exceeds the agency’s authority.

Furthermore, he found other violations specifically routed in the Supreme Court’s interpretation of the Spending Clause. He noted four principles relevant to this case: “conditions based on the receipt of federal funds must be set out unambiguously,” the “financial inducement offered by Congress” must not be “impermissibly coercive,” the conditions must relate “to the federal interest in the project and to the overall objective thereof,” and “the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.” Judge Engelmayer found it clear that the Rule violated at least the first two of these principles, pointing to specific ambiguities and internal contradictions in the Rule. And the draconian forfeiture of all funding as a remedy for a violation of the Rule was “impermissibly coercive.”

Finally, he concluded that the faults he had detected merited an order to the agency to vacate the Rule. He pointed out that it has long been “standard practice under the APA” for a court to order that a rule be vacated when the court determines that “agency regulations are unlawful.” He quoted a Supreme Court opinion on point, stating that “regulations subject to the APA cannot be afforded the force and effect of law if not promulgated pursuant to the statutory minimum found in that Act.” The APA itself says that a court shall “hold unlawful and set aside agency action, findings and conclusions” that the court finds to be “arbitrary and capricious, not in accordance with law, in excess of statutory authority, unconstitutional, or made without observance of procedures required by law.”

The judge rejected the government’s suggestion that he could go through the Rule stripping out objectionable parts and letting the rest go into effect, commenting that “the APA violations that the Court has found… are numerous, fundamental, and far-reaching. The Court’s finding that HHS lacked substantive rule-making authority as to three of the five principal Conscience Provisions nullifies the heart of the Rule as to these statutes. The Court’s finding that the agency acted contrary to two major existing laws (Title VII and EMTALA) vitiates substantive definitions in the Rule affecting health care employment and emergency contexts. The Court’s finding that HHS failed to give proper notice of the definition it adopted of “discriminate or discrimination” voids that central dimension of the Rule.” Letting a few selected provisions go into effect would “ignore the big picture: that the rulemaking exercise here was sufficiently shot through with glaring legal defects as to not justify a search for survivors.”

He also rejected HHS’s suggestion, common to Trump Administration arguments when courts are finding its executive actions invalid, that his order should be limited in effect to the Southern District of New York, or just to the named plaintiffs in the case, pointing out that this would lead to a proliferation of litigation around the country “to assure that such a Rule was never applied,” finding plenty of precedential support for this position in prior court of appeals opinions supporting trial court orders to vacate unlawfully promulgated rules.

“The Conscience Provisions recognize and protect undeniably important rights,” wrote Engelmayer. “The Court’s decision today leaves HHS at liberty to consider and promulgate rules governing these provisions. In the future, however, the agency must do so within the confines of the APA and the Constitution.”

Federal Court Rejects Christian Agency’s Claimed Constitutional Right to Discriminate Against Same-Sex Couples Seeking to Adopt Children

Posted on: May 27th, 2019 by Art Leonard No Comments

U.S. District Judge Mae A. D’Agostino has rejected a Christian social welfare agency’s bid to be exempted from complying with non-discrimination regulations promulgated by the New York Office of Children and Family Services (OCFS). Ruling on May 16 in New Hope Family Services, Inc. v. Poole, 2019 WL 2138355, 2019 U.S. Dist. LEXIS 2138355 (N.D.N.Y.), the court rejected a variety of constitutional arguments advances by the plaintiff in support of its claim of a constitutional right to discriminate against same-sex couples seeking to adopt children.

The plaintiff, New Hope Family Services, is an “authorized agency” with the authority to “place out or to board out children” and “receive children for purposes of adoption” under the New York Social Services Law and regulations adopted by the Office of Children and Family Services. Under the law, the agency must “submit and consent to the approval, visitation, inspection and supervision” of OCFS, which must approve the agency’s certificate of incorporation. Pastor Clinton H. Tasker founded New Hope in 1958 “as a Christian ministry to care for and find adoptive homes for children whose birth parents could not care for them,” wrote Judge D’Agostino. Because of its religion beliefs, New Hope “will not recommend or place children with unmarried couples or same sex couples as adoptive parents,” it states in its complaint. New Hope’s “special circumstances” policy states: “If the person inquiring to adopt is single . . . the Executive Director will talk with them to discern if they are truly single or if they are living together without benefit of marriage… because New Hope is a Christian Ministry it will not place children with those who are living together without the benefit of marriage. If the person inquiring to adopt is in a marriage with a same sex partners . . . the Executive Director will explain that because New Hope is a Christian Ministry, we do not place children with same sex couples.”

Prior to 2010, New York’s Domestic Relations Law provided that authorized agencies could place children for adoption only with “an adult unmarried person or an adult husband and his adult wife.” In September 2010, New York amended the law to allow placements with “an adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together.” After New York adopted its Marriage Equality law in 2011, OCFS issued a letter on July 11, 2011, stating that the intent of its regulations “is to prohibit discrimination based on sexual orientation in the adopting study assessment process. In addition, OFCS 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.” In 2013, the adoption regulations were amended to prohibit outright discrimination “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.” OCFS followed this up with an “informational letter” in 2016, advising authorized agencies to formalize their non-discrimination policies consistent with the regulations.

In its complaint challenging these developments, New Hope (represented by Alliance Defending Freedom, the anti-LGBT religious litigation group) claims, according to Judge D’Agostino, that the agency promulgated these regulations “purporting to require adoption providers to place children with unmarried and same-sex couples in complete disregard for the law, the scope of OFCS’s authority, and the rights of adoption providers.”

The lawsuit stemmed from action by OFCS, contacting New Hope early in 2018 to inform the agency that “under a new policy implemented in 2018, OFCS would be conducting comprehensive on-site reviews of each private provider’s procedures,” and following up in mid-July with an email to schedule New Hope’s program review, including a list of things that had to be reviewed, including New Hope’s “policies and procedures.” OFCS requested a copy of New Hope’s formal policies and procedures as part of this review. Later in 2018, after reading New Hope’s procedures, OFCS Executive Director Suzanne Colligan called New Hope, noting the “special circumstances” provision, and informing new Hope that it would “have to comply” with the regulations “by placing children with unmarried couples and same-sex couples,” and that if New Hope did not comply, it would be “choosing to close.” New Hope ultimately refused to comply after a series of email and letter exchanges with OFCS.

New Hope filed its complaint on December 6, 2018, claiming 1^st and 14^th amendment protection for its policies, claiming that OFCS’s interpretation of state law “targets, show hostility toward, and discriminates against New Hope because of its religious beliefs and practices” and also violates New Hope’s freedom of speech. The complaint also alleged an equal protection violation, and claimed that the state was placing an “unconstitutional condition” by requiring New Hope to comply with the non-discrimination policy in order to remain an “authorized agency.” The complaint sought preliminary injunctive relief against enforcement of the policy.

New Hope tried to escape the precedent of Employment Division v. Smith, 494 U.S. 872 (1990), which holds that there is no free exercise exemption from complying with neutral state laws of general application, by relying on a statement in Hosannah-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012), in which the Supreme Court held that the 1^st Amendment protects religious institutions from government interference in their selection of ministerial personnel. New Hope argued that “cases teach that even a genuinely ‘neutral law of general applicability’ cannot be applied when to do so would interfere in historically respected areas of religious autonomy.” New Hope claimed that the state regulation was adopted “for the purpose of targeting faith-based adoption ministries” and thus was “not neutral or generally applicable as applied.”

Judge D’Agostino was not convinced, referring to a decision by the U.S. District Court in Philadelphia rejecting similar arguments by Catholic Social Services in that city in Fulton v. City of Philadelphia, 320 F. Supp. 3d 661 (E.D. Pa. 2019), which has been affirmed by the 3^rd Circuit Court of Appeals, 922 F.3d 140 (April 22, 2019). The judge observed that the courts in the Philadelphia case had found similar requirements under a Philadelphia anti-discrimination ordinance to be “facially neutral and generally applicable” and “rationally related to a number of legitimate government objectives.” And, she noted, “In affirming the district court, the Third Circuit rejected CSS’s claims that the application of the anti-discrimination clause is impermissible under Smith and its progeny.” Judge D’Agostino found the 3^rd Circuit’s ruling persuasive in this case.

“On its face,” wrote the judge, “18 N.Y.C.R.R. sec. 421.3(d) is generally applicable and it is plainly not the object of the regulation to interfere with New Hope’s, or any other agency’s, exercise of religion.” She found that the requirement to comply is imposed on all authorized agencies, “regardless of any religious affiliation,” and that it is neutral. “Nothing before the Court supports the conclusion that section 421.3(d) was drafted or enacted with the object ‘to infringe upon or restrict practices because of their religious motivation.” The adoption of the requirement was a natural follow-up to the legislature’s passage of a law that codified “the right to adopt by unmarried adult couples and married adult couples regardless of sexual orientation or gender identity.” The purpose was to prohibit discrimination.

The court also rejected the argument that the regulations are not neutral because they allow agencies to take account of a variety of factors in evaluating proposed adoptive parents, including “the age of the child and of the adoptive parents, the cultural, ethnic, or racial background of the child and the capacity of the adoptive parent to meet the needs of the child with such background as one of a number of factors used to determine best interests.” As the 3^rd Circuit found in Fulton, there is a significant difference between a policy of outright refusal to place children with unmarried or same-sex couples and the application of an evaluative process focusing on the characteristics described in the regulations. “Further,” wrote D’Agostino, “nothing in the record suggests that OCFS has knowingly permitted any other authorized agency to discriminate against members of a protected class.”

New Hope also argued that the enforcement of the regulation was not neutral, instead evincing hostility against religious agencies such as itself. Rejecting this argument, the judge wrote, “The fact that New Hope’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that OCFS’s decision to regulate that conduct springs from antipathy to those beliefs,” quoting key language from the 3^rd Circuit: “If all comment and action on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well.”

The court also rejected New Hope’s argument that the regulation violates the Free Speech clause of the 1^st Amendment “insofar as it forces New Hope to change the content of its message” and to affirmatively recommend same-sex couples to be adoptive parents, in effect imposing an “unconstitutional condition” on New Hope. The essence of the analysis is that designating New Hope an “authorized agency” for this purpose is delegating a governmental function to New Hope, and any speech in which New Hope engages to carry out that function is essentially governmental speech, not New Hope’s private speech as a religious entity. “Therefore,” she wrote, “OCFS is permitted to ‘take legitimate and appropriate steps to ensure that its message,’ that adoption and foster care services are provided to all New Yorkers consistent with anti-discrimination policy set forth” in the regulation, “was and is ‘neither garbled nor distorted by New Hope.’” She concludes that “OCFS is not prohibiting New Hope’s ongoing ministry in any way or compelling it to change the message it wishes to convey. New Hope is not being forced to state that it approves of non-married or same sex couples. Rather, the only statement being made by approving such couples as adoptive parents is that they satisfy the criteria set forth by the state, without regard to any views as to the marital status or sexual orientation of the couple.”

The court similarly dismissed New Hope’s claim that applying the regulation violated its right of expressive association, rejecting New Hope’s argument that this case is controlled by the Supreme Court’s decision in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), where the court found that the BSA had a 1^st Amendment right to dismiss an out gay man from the position of Assistant Scoutmaster, based on the determination by 5 members of the Court that requiring the BSA to allow James Dale to serve would be a form of compelled endorsement of homosexuality. The Court deemed the BSA an expressive association that had a right to determine its organizational message. By contrast, found Judge D’Agostino, “New Hope has not alleged facts demonstrating a similar harm that providing adoption services to unmarried or same sex couples would cause to their organization. New Hope is not being required to hire employees that do not share their same religious values,” she wrote. “They are not prohibited in any way from continuing to voice their religious ideals.” And even if the regulation worked “a significant impairment on New Hope’s association rights,” she continued, “the state’s compelling interest in prohibition the discrimination at issue here far exceeds any harm to New Hope’s expressive association.”

The court also found no merit to New Hope’s Equal Protection claim based on a spurious charge of selective enforcement, finding no indication that OCFS was allowing other, non-religious agencies to discriminate while cracking down on New Hope. As to the “unconstitutional conditions” cause of action, the judge wrote that the court “views New Hope’s unconstitutional conditions claim as a mere repackaging of its various First Amendment claims and, therefore, the Court similarly repackages its resolution of those claims.”

Consequently, the court denied the motion for preliminary injunction, and granted OCFS’s motion to dismiss the case. ADF will undoubtedly seek to appeal this ruling to the 2^nd Circuit.

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