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

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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.

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.

U.S. Education Department to Publish Official Interpretation of Title IX Covering Sexual Orientation and Gender Identity Discrimination

Posted on: June 16th, 2021 by Art Leonard No Comments

Following up on President Joe Biden’s Executive Orders of January 20 and March 8, 2021, and a March 26 Memorandum by the Civil Rights Division of the Department of Justice, the U.S. Department of Education announced on June 16 that it is publishing a “Notice of Interpretation” in the Federal Register confirming that Title IX of the Education Amendments of 1972, which prohibits educational institutions that received federal funding from discriminating against students “on the basis of sex,” applies to discrimination because of sexual orientation or gender identity (transgender status).

The announcement came just a year after the Supreme Court interpreted Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of sex,” to include discrimination because of sexual orientation or transgender status, in Bostock v. Clayton County, Georgia. In Bostock, the Court combined cases from the 2^nd, 6^th and 11^th Circuit Courts of Appeals involving two gay men and a transgender woman, and voted 6-3 that any discrimination against an employee because they are gay, lesbian or transgender is necessarily at least in part because of their sex. President Donald J. Trump’s first appointee to the Court, Justice Neil Gorsuch, wrote the opinion for the Court by assignment from Chief Justice John Roberts, who joined the opinion together with Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor.

Although the Bostock decision directly interpreted only Title VII, its reasoning clearly applied to any law that prohibits discrimination “because of sex” or “on the basis of sex,” as the Education Department’s Acting Assistant Secretary for Civil Rights, Suzanne B. Goldberg, wrote in the Notice issued on June 16. In his January 20 Executive Order, President Biden directed all Executive Branch agencies to consider the implications of the Bostock decision for their policies and programs, and to apply the reasoning of that decision to the extent it was consistent with purposes of the particular policies and programs. His March 8 Executive Order explicitly referenced sexual orientation and gender identity in “guaranteeing an educational environment free from discrimination on the basis of sex.”

“After reviewing the text of Title IX and Federal courts’ interpretation of Title IX,” wrote Goldberg, “the Department has concluded that the same clarity [that the Supreme Court found under Title VII] exists for Title IX. That is, Title IX prohibits recipients of Federal financial assistance from discrimination based on sexual orientation and gender identity in their education programs and activities. The Department has also concluded for the reasons described in this Notice that, to the extent other interpretations may exist, this is the best interpretation of the statute.”

The Notice listed “numerous” lower federal court decisions that were issued over the past year taking this position, including the most recent ruling by the 4^th Circuit Court of Appeals in the Gavin Grimm case, concerning a transgender boy who was denied access to restroom facilities at a Virginia high school. The school board in that case filed a petition seeking Supreme Court review on February 24, which would present the Supreme Court with a ready vehicle to weigh in on this issue if it wants to do so.

Reversing the position taken by the Education Department during the Trump Administration, the Notice announces that the Department will investigate sexual orientation and gender identity discrimination allegations by students. “This includes allegations of individuals being harassed, disciplined in a discriminatory manner, excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity,” wrote Goldberg. She pointed out that a determination whether Title IX was violated will depend on the facts of individual cases, and of course Title IX applies only to schools that receive federal funds.

In a footnote, Goldberg pointed out that “educational institutions that are controlled by a religious organization are exempt from Title IX to the extent that compliance would not be consistent with the organization’s religious tenets,” citing 20 U.S.C. section 1681(a)(3). There is a pending federal lawsuit against the Education Department by a group of students from such religious schools claiming that this section violates the 1^st Amendment Establishment Clause. Religious schools have moved to intervene as parties in that lawsuit, claiming that the government may not sufficiently defend their exemption. The Justice Department has opposed their motion in a recent court filing, asserting that the government will “vigorously” defend the challenged provision. The religious exemption was a politically necessary compromise to get Title IX adopted by Congress.

While the June 16 Notice states that its interpretation of Title IX “supersedes and replaces any prior inconsistent statements made by the Department regarding the scope of Title IX’s jurisdiction over discrimination based on sexual orientation or gender identity,” it goes on to say that this “interpretation does not reinstate any previously rescinded guidance documents.” This comment is significant, because during the Obama Administration the Education Department issued guidance documents on Title IX compliance requirements that took positions on many of the controversial issues that have been subject to litigation. Those guidance requirements were cited by school boards and administrators in defending actions they took, even after the guidances were formally rescinded by the Education Department shortly after Betsy DeVos was confirmed as Secretary of Education. DeVos took the position, later bolstered by a memorandum by Attorney General Jeff Sessions in October 2017, that Title IX did not cover sexual orientation or gender identity discrimination.

Miguel Cardona, Biden’s Secretary of Education, told The New York Times in an interview published on June 16 that “Students cannot be discriminated against because of their sexual orientation or their gender identity,” but left unclear the question whether his Department would be challenging state laws that ban transgender girls from competing in school sports. He stated, “We need to make sure we are supporting all students in our schools,” but he did not get specific about particular challenged policies. Making clear that “all” really means “all,” the Notice says that the Department’s Office of Civil Rights “carefully reviews allegations from anyone who files a complaint, including students who identify as male, female or nonbinary; transgender or cisgender; intersex; lesbian, gay, bisexual, queer, heterosexual, or in other ways.”

The U.S. Court of Appeals for the 9^th Circuit recently heard arguments in the State of Idaho’s appeal from a district court decision finding that the state’s ban on transgender girls playing sports, the first such ban to be enacted, violates the constitutional rights of the transgender girls. If this issue ends up in the Supreme Court, the Biden Administration will have to take a position one way or the other, just as it will be pressed to take a position if the Court grants the petition by the Gloucester County School Board in the Gavin Grimm case. A federal court in Connecticut recently dismissed a lawsuit by a group of cisgender female high school athletes challenging a state policy of allowing transgender girls to compete, finding that the plaintiffs lacked standing to bring the issue to the court.

The Education Department’s interpretation of Title IX is not binding on the federal courts, but is entitled to some degree of deference under principles of administrative law. After DeVos and Sessions “rescinded” the Obama Administration’s interpretation and guidance documents, many federal courts continued to rule in favor of transgender students and school administrators who had adopted policies allowing transgender students to use restroom facilities. The lower federal courts have been united up to now in rejecting claims by parents and students that allowing transgender students to use restroom and locker room facilities violates the constitutional privacy rights of non-LGBTQ students, and the Supreme Court has so far refrained from hearing those cases.

As President Biden has boasted about how many LGBTQ people he has appointed, it is worth noting that both the Justice Department Civil Rights Division March 26 Memo and the June 16 DOE Notice were authored by out lesbian appointees, Pamela Karlan and Suzanne Goldberg.

Virginia School Board Asks Supreme Court to Overturn Gavin Grimm’s Transgender Rights Victory

Posted on: February 20th, 2021 by Art Leonard No Comments

The Gloucester County (Virginia) School Board filed a petition on February 19 with the Supreme Court seeking reviewing of the lower courts’ rulings in the lawsuit originally filed by Gavin Grimm, a transgender man, when he was a student at the School Board’s high school, seeking to be allowed to use restrooms consistent with his gender identity. The School Board is appealing from an August 2020 decision by the 4^th Circuit Court of Appeals, Gloucester County School Board v. Grimm, 972 F.3d 586 (4th Cir. 2020), which upheld the district court’s ruling that the School Board violated Grimm’s rights under Title IX and the Equal Protection Clause of the 14^th Amendment by refusing to let him use the boys’ restroom facilities at the high school.

The Supreme Court had actually granted a petition for certiorari at an earlier point in this case, after the 4th Circuit ruled in 2016 that the district court should not have rejected Grimm’s Title IX sex discrimination claim, but should instead have deferred to the Obama Administration’s interpretation of the statute, as reflected in a letter filed with the district court that was subsequently formalized in a “Dear Colleague” letter sent by the U.S. Department of Education to the nation’s public school systems. The narrowly framed question at that time was whether the district court should defer to an interpretation of Title IX regulations by the Obama Administration, which had articulated the view that Title IX’s ban on sex discrimination should be interpreted to include discrimination because of gender identity, and that transgender students are entitled to be dealt with by their schools consistent with their gender identity.

Oral argument was scheduled for March 2017, but then cancelled at the request of the Trump Administration as it withdrew the Obama Administration’s policy, and the Education Department ceased to investigate and pursue discrimination claims by transgender students.

Grimm’s pursuit of injunctive relief was largely mooted to a certain extent when he graduated from the high school that spring, but ultimately on remand the district court ruled in his favor on liability under Title IX, holding that he had suffered unlawful discrimination while a student, as well as by being denied an official high school transcript using his male name, a ruling that was upheld by the 4th Circuit on August 26, 2020, then denying a motion for rehearing on September 22.

The Trump Administration had disavowed enforcing Title IX in support of restroom access claims by transgender students, withdrawing the Obama Administration’s policy statement and proclaiming disagreement with the contention that Title IX extends to gender identity discrimination claims. But after Trump lost re-election in November, the School Board had a new incentive to keep the case going, sine Joseph Biden’s campaign agenda, taken together with the Supreme Court’s ruling in Bostock v. Clayton County last June, made it likely that the Education Department would resume enforcing Title IX on gender identity claims by students.

After the Supreme Court ruled in Bostock, a Title VII employment discrimination case, that discrimination because of gender identity was necessarily discrimination because of sex, Trump Administration officials asserted that the ruling was not binding under Title IX. However, President Biden’s January 20 Executive Order directing all federal agencies to follow the reasoning of Bostock in enforcing their statutory provisions banning sex discrimination (and specifically mentioning Title IX in this regard), signaled that the Education Department would resume processing discrimination claims by transgender students. Indeed, in his Executive Order, President Biden specifically mentioned that students should not have to worry about being allowed to use restrooms.

The question presented by the Gloucester County petition: “Does Title IX or the Equal Protection Clause require schools to let transgender students use multi-user restrooms designated for the opposite biological sex, even when single-user restrooms are available for all students regardless of gender identity?” This question, in the context of employee restroom use, was explicitly not addressed by the Court in Bostock, as not having been presented as an issue in that case, and Justice Neil Gorsuch, writing for the Supreme Court, solely focused its holding on the question whether a gender identity or sexual orientation discrimination claim could be presented to the courts under Title VII, although the Court’s articulated reason in so ruling would clearly apply to any statute that forbids discrimination because of sex (and plausibly to the Equal Protection Clause as well), as President Biden proclaimed in his Executive Order.

The Supreme Court has never directly ruled on the restroom issue in the context of Title IX, but its grant of review and scheduling of argument in the earlier stage of this case shows that at one time it had found the issues sufficiently compelling to grant review. Since that time, Justice Gorsuch as replaced Justice Scalia, Justice Kavanaugh has replaced Justice Kennedy, and Justice Barrett has replaced Justice Ginsburg, generally moving the Court to a more conservative tilt. While lower federal courts have generally fallen into line with the Obama Administration’s interpretation of these issues in school litigation, it is unclear that the Supreme Court will continue that trend with its current ideological line-up. The Court’s 6-3 ruling in Bostock does not necessarily signal how it would rule if it grants review in this case.

Gavin Grimm has been represented through the litigation by the LGBT Rights Project of the ACLU. Gene C. Schaerr, an experienced conservative Supreme Court litigator, is listed as Counsel of Record on the School Board’s petition.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ultimately, wrote the 7^th Circuit, “The district court’s order requiring Indiana to recognize the children of these plaintiffs as legitimate children, born in wedlock, and to identify both wives in each union as parents, is affirmed.”

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

Michigan Claims Court Issues Split Ruling on State’s Public Accommodations Law

Posted on: December 13th, 2020 by Art Leonard No Comments

Michigan Court of Claims Judge Christopher M. Murray issued an opinion on December 7 in Rouch World v. Michigan Department of Civil Rights, Court of Claims Case No. 20-000145-MZ, holding that the state’s Elliot-Larsen Civil Rights Act (ELCRA), which, among other things, prohibits businesses from discriminating against customers because of their sex, cannot be interpreted by his court as banning sexual orientation discrimination, because the state’s Court of Appeals rejected the argument that sexual orientation discrimination is covered by the Act in a 1993 ruling.

On the other hand, finding that there is no Michigan court ruling on whether the ELCRA’s sex discrimination ban can be applied to discrimination against transgender people, Judge Murray followed the Supreme Court’s June 2020 ruling in Bostock v. Clayton County, 140 S. Ct. 1731, which interpreted the federal ban on sex discrimination in employment to apply to claims of discrimination based on transgender status.

Michigan Attorney General Dana Nessel announced that she would appeal Murray’s ruling as to sexual orientation discrimination, while the business that faces a gender identity discrimination claim announced that it would appeal that ruling.

Murray’s opinion concerned discrimination claims against two businesses. Rouch World, an events venue that rents space for weddings and other celebrations, refused to book an event for a same-sex couple, citing the owners’ religious objections to same-sex marriages. Uprooted Electrolysis, which provides permanent hair-removal treatment, turned down a transgender person seeking their service as part of her transition, also citing religious objections.

In both cases, the rejected customers filed complaints with MDCR, which began investigations pursuant to its Interpretative Statement 2018-1, which states that the ELCRA can be interpreted to cover such claims. In both cases, the businesses subsequently filed suit in the Court of Claims, arguing that the Department does not have jurisdiction over sexual orientation and gender identity claims, and even if it did, that their religious objections privileged them to deny the services. The plaintiffs asked the court to put an end to the investigations.

Judge Murray explained that the ELCRA does not define the word “sex” as used in the provision applicable to claims of discrimination by “a place of public accommodation,” which includes businesses selling goods or services to the public. In 1993, the Michigan Court of Appeals ruled in Barbour v. Department of Social Services, 497 N.W. 2d 216, that “harassment or discrimination based on a person’s sexual orientation is not an activity proscribed by the Act.” That decision is binding on trial courts in Michigan. Judge Murray explained that “whether Barbour’s reasoning is no longer valid in light of Bostock v. Clayton County, and cases containing similar reasoning, is a matter for the Court of Appeals, not this court.” Consequently, Attorney General Nessel, herself an out lesbian who helped persuade the Department to issue Interpretative Statement 2018-1, will appeal this part of the ruling to the Court of Appeals.

On the other hand, Murray found no prior opinion by a Michigan court addressing the question of whether gender identity discrimination claims are covered by the ELCRA. Lacking such authority, Michigan courts will look to decisions concerning other statutes with similar language as well as federal rulings for interpretative guidance. This brings the Bostock decision into play.

Significantly, the Michigan Supreme Court recently vacated a Michigan Court of Appeals ruling in a case under the ethnic intimidation statute for reconsideration in light of Bostock. In that case, People v. Rogers, 331 Mich. App. 12, vacated, 950 N.W. 2d 48 (2020), the Court of Appeals ruled that the ethnic intimidation statute’s listing of sex does not cover hate crimes against transgender people. The Michigan Supreme Court told the Court of Appeals to reconsider that ruling in light of Bostock, a clear signal that the Michigan court is prepared to treat the Bostock decision as a persuasive precedent for interpreting the state’s sex discrimination laws.

“Following the Bostock Court’s rationale,” wrote Murray, “if defendants determine that a person treated someone who ‘identifies’ with a gender different than the gender that he or she was born as, then that is dissimilar treatment on the basis of sex, and they are entitled to redress that violation through the existing MDCR procedures. Nothing in the ELCRA would preclude that action.”

The bottom line of Judge Murray’s decision is that the Department does not have jurisdiction of the sexual orientation discrimination claim against Rouch World unless the Michigan Court of Appeals decides to overrule its old Barbour decision, but that the Department does have jurisdiction to investigate Uprooted Electrolysis’s denial of service to a transgender client, at least so far as interpretation of the ELCRA goes. Of course, the Supreme Court’s remand in the ethnic intimidation case is likely to persuade the Court of Appeals that it should also reconsider Barbour in light of Bostock.

The court refrained from ruling on the religious exemption claims, stating that issue “has not been sufficiently briefed to resolve at this juncture.” The question of federal constitutional religious exemptions from compliance with state or local anti-discrimination laws is now before the U.S. Supreme Court in Fulton v. City of Philadelphia, which was argued on November 4 and will be decided sometime in 2021. It is likely that many state agencies and courts dealing with religious exemption claims by civil rights defendants may delay ruling on such claims until the Supreme Court rules in Fulton.

Judge Murray ended his opinion by stating, “This is not a final order as it does not resolve all of the pending issues in this case.” This cryptic remark implies that Uprooted Electrolysis may not immediately appeal the court’s determination that the ELCRA applies to the transgender discrimination claim, since its religious exemption claim has not yet been ruled upon. However, the declaration that the MDCR does not have jurisdiction over the sexual orientation claim against Rouch World seems final as to that complaint, so Attorney General Nessel may be able to appeal that ruling.

Supreme Court May Address Parental Presumption for Children of Married Lesbians This Term

Posted on: November 26th, 2020 by Art Leonard No Comments

Now that there is a 6-3 conservative majority on the Supreme Court, it is possible that the Court will begin a process of cutting back on marriage equality. This is at least one interpretation of the Court’s request for additional briefing on a cert petition filed by the state of Indiana in Box v. Henderson, No. 19-1385, seeking review of the 7th Circuit’s January 17, 2020, decision in Henderson v. Box, 947 F.3d 482, in which the court of appeals applied the Supreme Court’s rulings in Obergefell v. Hodges, 576 U.S. 644 (2015) and Pavan v. Smith, 137 S. Ct. 2075 (2017), to rule that a state must apply the parental presumption regarding newborn children regardless of the sex of the birth mother’s spouse, if it always applies the presumption when the birth mother’s spouse is male.

When the petition was filed with the Court in June, the Respondents (same-sex mothers challenging the state’s policy) waived their right to file a response, apparently assuming that the Court would not be interested in revisiting an issue that it had decided per curiam with only three dissenting votes as recently as June 2017. The petition was circulated to the justices for their conference of September 29, which would be held the week after the death on September 18 of Justice Ruth Bader Ginsburg, who was part of the Pavan v. Smith majority. Another member of that majority who is no longer on the Court is Anthony M. Kennedy, whose retirement led to Justice Brett Kavanaugh’s appointment. By the time the Court was to hold its conference on the 29th, it was clear that Trump would nominate a conservative replacement for Ginsburg and that the Senate would rush to confirm the nominee to fulfil Trump’s goal to ensure a 6-3 Republican conservative majority on the Court in case he sought to contest adverse election results.

Evidently the Box v. Henderson petition, lacking a responsive filing, caught the eyes of one or more of the conservative justices, who had the Clerk of the Court send a request to the plaintiffs to file a responding brief, which was filed on November 10. On November 23, the state of Indiana filed a Reply brief, which provided a news hook for media to report on November 24 that the new conservative majority might take up the case as a vehicle to cut back on marriage equality by holding that a state may decide that it is not required to presume that the wife of a birth mother is the other parent for purposes of officially recording the birth.

An argument that has been persuasive to lower courts, apart from the “equal treatment” for same-sex marriages statements in Obergefell and Pavan, is that states have applied the presumption in favor of the husbands of birth mothers even when it was clear that the husband was not the biological father, as for example when donor sperm was used to inseminate the wife with the husband’s consent, or when the husband and wife were geographically separated when the wife became pregnant. Thus, under existing policies in many states, the parental presumption has not been limited to cases in which it was rational to assume that the birth mother’s husband was the child’s biological father. In this connection, even if Chief Justice Roberts, part of the per curiam majority in Pavan despite his dissent in Obergefell, sticks with his vote in Pavan, there are now five conservatives to vote the other way, two of whom joined Justice Neil Gorsuch’s dissent in Pavan asserting that the issue was not decided simply on the basis of Obergefell.

With the filing of the state’s reply brief, the Petition has been redistributed for the Court’s conference of December 11. Sometimes the Court rolls over cert Petitions for many conferences before reaching a decision whether to grant review. If the Court grants certiorari before the end of January, the case would likely be argued during the current term and decided by the end of June. A later grant would most likely be argued during the October 2021 Term.

Counsel listed on the Respondents’ Brief in Opposition include Karen Celestino-Horseman (Counsel of Record) of Austin & Jones, P.C., Indianapolis; attorneys from the National Center for Lesbian Rights (Catherine Sakimura, Shannon Minter, and Christopher Stoll), San Francisco; Douglas Hallward-Driemeier of Ropes & Gray LLP, Washington (who was one of the oral advocates in the Obergefell case); Joshua E. Goldstein, also of Ropes & Gray LLP, Boston office; Raymond L. Faust, of Norris Choplin Schroeder LLP, Indianapolis, William R. Groth of Vlink Law Firm LLC, Indianapolis; and Richard Andrew Mann and Megal L. Gehring, of Mann Law, P.C., Indianapolis. Several same-sex couples joined in this case, resulting in several Indianapolis law firms being involved.

Federal Court Temporarily Blocks New York State from Requiring a Religious Adoption Agency to Provide Services to Married Same-Sex Couples

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

New Hope Family Services, which describes itself as a Christian adoption agency licensed by New York State to provide adoption services, has won a preliminary injunction to block New York’s Office of Children and Family Services (OCFS) from closing the agency because of its refusal to provide services to married same-sex couples. New Hope Family Services, Inc. v. Poole, 2020 WL 5887296, 2020 U.S. Dist. LEXIS 183926 (N.D.N.Y., October 5, 2020).

New Hope sued Sheila J. Poole, OCFS’s Commissioner, after OCFS instructed New Hope to prepare to close down its adoption services if was unwilling to change its policy and work with married same-sex couples as required by a state regulation. U.S. District Judge Mae A. D’Agostino issued the injunction after being directed by the U.S. 2^nd Circuit Court of Appeals to reconsider her prior denial of a preliminary injunction at the same time that she dismissed New Hope’s lawsuit. The 2^nd Circuit panel reversed the dismissal decision. See 966 F. 3d 145 (2^nd Cir. 2020), reversing and remanding 387 F.Supp.3d 194 (N.D.N.Y. 2019).

Under New York law, only an “authorized agency” can evaluate potential adoptive parents, match them with children needing adoption, and make recommendations to a court that will ultimately grant the adoption. Evangelical Family Service was formed in 1965 by a Christian minister to undertake this work in Syracuse and was granted a two-year certificate of incorporation by the state. When the certificate came up for renewal, the state extended permanent certification. Eventually the agency was renamed New Hope Family Services. At that time, New York’s adoption statute limited the right to adopt children to “an adult unmarried person or an adult husband and his adult wife.”

In 2010, the legislature amended the law to allow authorized agencies to place children for adoption with “an adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together.” This amendment updated the statute to comply with what the courts had been doing, as the New York Court of Appeals had recognized second-parent adoptions for same-sex couples during the 1990s. The adoption statute empowers OCFS to adopt regulations for enforcing statutory rights, which led it to adopt a non-discrimination regulation and to inform all authorized agencies that they could not discriminate against same-sex couples or unmarried couples.

After New York’s Marriage Equality Law went into effect in July 2011, of course, married same-sex couples would be covered by the amended adoption statute, since the Marriage Equality Law adopted a policy of equal rights for same-sex marriage couples, and authorized agencies were so advised. In 2015, the Supreme Court found that same-sex couples have a federal constitutional right to marry, and their marriages are entitled to the same treatment under state law as all other marriages.

Regardless of these developments, New Hope retained its existing policy, which was to limit its services to unmarried adults who were not living together with other adults in an intimate relationship, and to heterosexually married adults. If New Hope was approached for services by individuals or couples who did not come within this policy, it would offer to refer them to other agencies for adoption services. It refers to this policy as “recusal and referral.”

In 2018, OCFS decided to audit the policies of all authorized agencies. It had never received a complaint about denial of services by New Hope, so this was the first time OFCS was confronted by New Hope’s non-compliant policy. After some conversations between the office and New Hope, in the course of which OCFS staff made some statements that New Hope (and the 2^nd Circuit panel) seized upon as showing “hostility” to New Hope’s religious beliefs, the written ultimatum was delivered late in the fall of 2018, setting a deadline for New Hope to adjust its policy by the end of November. Instead, New Hope filed this lawsuit, represented by Alliance Defending Freedom, a religious-freedom litigation organization that frequently challenges gay rights policies in the courts.

New Hope argued that the regulation went beyond the statute by compelling authorized agencies to provide services to same-sex couples, whereas the statute was worded in permissive language – that agencies were allowed to provide service to such couples. At the time the statute was adopted, Governor David Paterson issued a statement that it would not require any agencies to change their polices. Thus, New Hope argued, OCFS was going beyond its authority in trying to force New Hope to change its policy. Furthermore, New Hope argued, requiring it to serve same-sex couples against its religious beliefs would violate its First Amendment rights of free speech and free exercise of religion, and, citing the Supreme Court’s Masterpiece Cakeshop decision, it claimed that OCFS had expressed hostility to New Hope’s religious beliefs. New Hope sought a preliminary injunction to block OCFS from taking action against it while the lawsuit was pending.

The state moved to dismiss the lawsuit. Judge D’Agostino granted the state’s motion in May 2019, finding that the regulation was within the scope of the statute and did not violate New Hope’s constitutional rights. At the same time, she denied the motion for injunctive relief. New Hope appealed to the 2^nd Circuit, which reversed the dismissal in July 2020 and sent the case back to Judge D’Agostino. The three-judge Circuit panel concluded that New Hope’s allegations were sufficient to put into play its constitutional claims as well as its claims about the limited scope of the adoption statute as permissive rather than mandatory, and directed Judge D’Agostino to reconsider the issue of the preliminary injunction in that light. The three-judge panel, which also mentioned the “hostility” issue, retained jurisdiction of the case, advising that if D’Agostino issued a new decision that was appealed, the appeal would go to the same three-judge panel.

Given the realities of the situation, it was foreordained that D’Agostino would issue the injunction, although there were signs in her opinion that she had not changed her mind about her original analysis but was basically following the directions of the court of appeals, her explanations flowing from their decision. In one footnote, responding to the issue of “hostility,” she wrote: “In conducting its analysis, the Court cannot ignore the drastic difference in the circumstances which have historically led to findings of religious hostility and the circumstances of the present case. . . Here, the only statements upon which the Second Circuit relies indicate, at worst, that OCFS intends to ensure compliance with anti-discrimination law in the adoption process, regardless of an organization’s religious beliefs. The Court finds the argument that these statements indicate hostility tenuous.” But she acknowledged that she was bound by the 2^nd Circuit’s opinion to credit this argument for purposes of deciding whether to issue the preliminary injunction.

At the heart of the constitutional free exercise issue is the U.S. Supreme Court’s 1990 decision Employment Division v. Smith, 494 U.S. 873, which ruled that there is no constitutional right under the Free Exercise Clause for individuals and organizations to refuse to comply with religiously-neutral laws of general application that incidentally burden their free exercise rights. In that case, however, the Supreme Court recognized that a government policy that burdens other rights as well as religious free exercise rights (a so-called “hybrid rights case”) presents a different issue and may carry a higher burden of justification by the government. Judge D’Agostino had originally responded to this point by rejecting New Hope’s compelled speech argument, labeling as “government speech” any recommendation that they would make to a court to approve an adoption by a same-sex couple, on the premise that as an “authorized agency” they were performing an inherently governmental function on behalf of the state, applying state-specified criteria, and they were not speaking for themself. The 2^nd Circuit panel disagreed, finding that the state gave authorized agencies substantial discretion, so their speech was entitled to First Amendment protection. Furthermore, New Hope’s argument that the regulation went beyond the scope of the statute was also arguable, given the statute’s permissive rather than mandatory wording. In that case, New Hope should be entitled to litigate the case.

Concerning the public interest, which is considered on a motion for injunctive relief, closing down New Hope would reduce the number of agencies in its geographical area providing adoption services, it claims to never have been approach by same-sex couples seeking its services, and in the past New Hope had been repeatedly praised for the high quality of its services, so on balance it was arguable that the public interest supports keeping it open while the case continues.

The New Hope case is very similar to a case that will be argued in the Supreme Court on November 4, the day after election day, Fulton v. City of Philadelphia, in which Catholic Social Services is suing the City of Philadelphia over the city’s refusal to renew its contract with CSS to participate in the city’s foster care system. CSS refuses to provide its services to same-sex couples seeking to be foster parents.

In granting CSS’s petition to review a decision in favor of the city by the U.S. Court of Appeals for the 3^rd Circuit, see 922 F.3d 140 (3^rd Cir. 2019), CSS specifically asked the Supreme Court both to reconsider its ruling in Employment Division v. Smith and to consider whether requiring a religious agency to violate is principles in order to participate in the child welfare system violates its 1^st Amendment rights. There are already at least four members of the Court who have signaled their desire to reconsider Employment Division. The probable addition of Judge Amy Coney Barrett to the Court may well tip the Court over to a majority to overrule or narrow the Employment Division precedent, which could affect litigation in other cases challenging Trump Administration policies to carve broad religious and moral objection protection out of non-discrimination rules.

It is unlikely that Judge D’Agostino would issue a final ruling in the New Hope case until after the Supreme Court rules in the CSS case. Such a ruling is unlikely to come before the beginning of 2021 and theoretically could come as late as June. In the meanwhile, the preliminary injunction blocks OCFS from taking any action to shut down New Hope’s adoption activities.

Death of Justice Ruth Bader Ginsburg Removes a Staunch Advocate of LGBTQ Rights from the Supreme Court

Posted on: September 27th, 2020 by Art Leonard No Comments

Justice Ruth Bader Ginsburg died on September 18, 2020, age 87, having served on the Supreme Court of the United States since August 10, 1993. Throughout her tenure on the Court she had been a staunch supporter of LGBTQ rights, joining all of the pro-LGBTQ rights majorities and dissenting from all of the adverse decisions except for two in which the Court was unanimous.

In 1993, she joined Justice David Souter’s opinion for the Court in Farmer v. Brennan, 511 U.S. 825 (1994), in which the Court ruled that a transgender inmate who was repeatedly subjected to sexual assault in prison could hold prison officials liable for damages under the 8^th Amendment by showing that they knew the inmate faced “a substantial risk of serious harm” and the officials “disregard[ed] that risk by failing to take reasonable measures to abate it.” Although three members of the Court wrote concurring opinions, Justice Ginsburg did not write in this case, then a new member of the Court.

In 1995, Justice Ginsburg joined the unanimous Court in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), holding that the Boston St. Patrick’s Day Parade was an expressive association whose organizers had a right to exclude from their parade an organization whose message they did not want to include. While holding that Massachusetts could not enforce its public accommodations law banning sexual orientation discrimination against the parade organizers, the Court affirmed that it was within the legislative and constitutional authority of the state to generally ban public accommodations from discrimination based on sexual orientation. Justice Souter wrote for the Court.

In 1996, Justice Ginsburg joined the Court’s opinion by Justice Anthony M. Kennedy, Jr., in Romer v. Evans, 517 U.S. 620 (1996), holding that Colorado violated the Equal Protection Clause of the 14^th Amendment by enacting a state constitutional amendment that prohibited the state or any of its subdivisions from protecting “homosexuals” from discrimination. Justice Kennedy wrote that the state could not treat gay people as “strangers from the law” or categorically single gay people out for exclusion based on animus against homosexuality. The Court’s vote was 6-3, with Chief Justice William Rehnquist and Justice Clarence Thomas joining Justice Antonin Scalia’s dissenting opinion.

Justice Ginsburg joined Justice Scalia’s opinion for the unanimous Court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), which embraced a textualist interpretation of Title VII of the Civil Rights Act of 1964, reversing a decision by the 5^th Circuit Court of Appeals that a man who was subjected to severe and pervasive harassment of a sexual nature by male co-workers in an all-male workplace could not bring a hostile work environment sex discrimination claim under that statute. To the contrary, ruled the Court, nothing in the language of the statute suggested that so-called “same-sex harassment” was not actionable, so long as the plaintiff showed that he was harassed because of his sex. Justice Scalia memorably wrote that even though “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII, … statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” This mode of interpretation provided a foundation for the Court’s ruling in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the last LGBTQ rights victory in which Justice Ginsburg participated.

In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court ruled 5-4 that the Boy Scouts of America enjoyed a 1^st Amendment right to exclude gay men from serving as adult leaders of their Boy Scout troops. Chief Justice Rehnquist wrote for the Court in an opinion that drew upon Hurley as precedent. Justice Ginsburg joined two dissenting opinions, one by Justice John Paul Stevens and the other by Justice David Souter.

Justice Ginsburg was part of the 6-3 majority that voted to hold that a Texas law penalizing “homosexual conduct” was unconstitutional as applied to private, consensual adult sexual activity. Lawrence v. Texas, 539 U.S. 558 (2003). Ginsburg joined the opinion for the Court by Justice Kennedy, which based its ruling on the Due Process Clause of the 14^th Amendment, and overruled Bowers v. Hardwick, 478 U.S. 186 (1986), which had rejected a Due Process challenge to Georgia’s sodomy law. Justice Sandra Day O’Connor concurred in the judgement but would not vote to overrule Bowers (a case in which she had joined the Court’s opinion), rather premising her vote on Equal Protection. Scalia dissented, in any opinion joined by Rehnquist and Thomas.

In 2006, Justice Ginsburg joined the unanimous opinion by Chief Justice John Roberts in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), rejecting a 1^st Amendment claim by a group of law schools and law faculty members that their institutions should have a right to exclude military recruiters because of the Defense Department’s policy excluding gay people, among others, from the service. Roberts premised the Court’s ruling on Congress’s power under Article I of the Constitution to “raise and support armies,” holding that Congress could constitutionally support this function by denying federal financial assistance to educational institutions that denied military recruiters the same access that they accorded to other recruiters under the so-called Solomon Amendment that Congress regularly attached to Defense appropriations bills.

Justice Ginsburg wrote for the Court in 2010 in Christian Legal Society v. Martinez, 561 U.S. 661 (2010), rejecting a claim by students of the Christian Legal Society chapter at Hastings Law School that the school’s denial of official status to CLS because of its exclusionary membership policy violated the 1^st Amendment. The Court divided 5-4, with Justices Kennedy and Stevens issuing concurring opinions, from which it was reasonable to infer that Justice Ginsburg assembled her majority by seizing upon a factual stipulation entered at the district court that the school’s policy required that recognized student organizations allow all students to join, even though the wording of the policy prohibited discrimination based on enumerated characteristics, including sexual orientation, which was the “sticking point” with CLS. Writing in dissent, Justice Samuel Alito angrily charged the court with failing to address the explicit policy that the school had adopted and then relied upon to withdraw recognition from CLS. He argued that the Court was enabling viewpoint discrimination by the public law school. Roberts, Scalia and Thomas joined the dissent.

In Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014), dissenting, Justice Ginsburg rejected the Court’s holding that commercial businesses could assert claims to being exempt from coverage requirements of contraceptives under the Affordable Care Act as an interpretation of the Religious Freedom Restoration Act. In his opinion for the 5-4 majority, Justice Alito observed (in dicta) that an employer could not rely on religious freedom claims to defend against a race discrimination claim under Title VII. In her dissent, Justice Ginsburg noted religious objections to homosexuality by some employers and questioned whether the Court would find that employers would have a right under RFRA statutes (patterned on the federal RFRA) to discriminate on that basis. She specifically noted the case of Elane Photography v. Willock, in which the New Mexico Supreme Court had rejected a state RFRA defense by a wedding photographer being sued under the state’s public accommodations law, and in which the Supreme Court had recently denied a petition for certiorari, as well as a state law case from Minnesota involving a health club owned by “born-again” Christians who denied membership to gay people in violation of a local anti-discrimination law.

Justice Ginsburg joined opinions for the Court by Justice Kennedy in United States v. Windsor, 570 U.S. 744 (2013) and Obergefell v. Hodges, 576 U.S. 644 (2015), both 5-4 rulings, in which the Court invoked concepts of Due Process and Equal Protection to invalidate Section 3 of the federal Defense of Marriage Act (which prohibited federal recognition of same-sex marriages recognized by some states at that time), and to strike down state constitutional and statutory provisions denying same-sex couples the right to marry or recognition of same-sex marriages performed in other states. (As senior justice in the majority in both cases, Justice Kennedy assigned himself the opinions for the Court.) As they were 5-4 decisions, Justice Ginsburg’s vote was necessary to the outcome in both cases. Between the decision in Windsor and the decision in Obergefell, Justice Ginsburg became the first sitting member of the Court to officiate at a same-sex wedding ceremony, an action that led some to call for her recusal in Obergefell.

In Hollingsworth v. Perry, 570 U.S. 693 (2013), Justice Ginsburg joined Chief Justice Roberts’ opinion holding that the proponents of California Proposition 8, which had amended the state’s constitution to define marriage solely as the union of a man and a woman, lacked Article III standing to appeal the district court’s decision holding that measure unconstitutional, where the state had declined to appeal that ruling. The Court’s opinion expressed no view as to the constitutionality of Proposition 8, focusing entirely on the question of standing, but its effect was to allow same-sex couples to resume marrying in California, which they had not been able to do from the effective date of Prop 8’s passage in November 2008. Of course, Californian same-sex couples who subsequently married, as well as those who had married in the five-month period prior to the passage of Prop 8, benefited from federal recognition of their marriages under U.S. v. Windsor, which was issued by the Court on the same day as Hollingsworth. Justice Kennedy dissented, in an opinion joined by Thomas, Alito and Justice Sonia Sotomayor.

In two subsequent per curiam rulings, Justice Ginsburg, who did not dissent, presumably joined in the Court’s disposition of the cases:

In 2016, the Court ruled per curiam in V.L. v. E.L., 136 S. Ct. 1017 (2016), that the courts of one state must accord full faith and credit to an adoption approved by the courts of another state where the court that approved the adoption had general jurisdiction over the subject of adoptions. The case involved a second-parent adoption by the same-sex partner of the child’s birth mother in Georgia, where they were temporarily residing. They moved back to Alabama and in a subsequent split-up, the birth mother urged Alabama courts to refuse to recognize the adoption, arguing that had it been appealed, the appellate courts in Georgia would have found it invalid. There was no dissent from the U.S. Supreme Court per curiam, which asserted the Full Faith and Credit Clause requires state courts to recognize decisions by courts of other states who had jurisdiction to render those decisions under the laws of their states.

In 2017, the Court ruled per curiam in Pavan v. Smith, 137 S. Ct. 2075 (2017), that the state of Arkansas’s refusal to apply the spousal presumption to name the wife of a woman who gave birth to a child as a parent of the child on its birth certificate violated the 14^th Amendment as construed by the Supreme Court in Obergefell v. Hodges. In a dissenting opinion joined by Justices Alito and Thomas, Justice Neil Gorsuch argued that the decision in Obergefell did not necessarily decide this case so the Court should have called for merits briefing and oral argument rather than deciding the case based on the cert documents.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), Justice Ginsburg wrote a dissent, joined by Justice Sotomayor, rejecting the Court’s decision to reverse the Colorado Court of Appeals and the state’s Civil Rights Commission in their ruling that a bakery violated the state’s civil rights law by refusing to make a wedding cake for a same-sex couple. Justice Kennedy’s opinion for the Court in the 7-2 ruling was premised on the majority’s conclusion that the baker, who was relying on 1^st Amendment free exercise and free speech arguments, had been denied a “neutral forum” for the decision of his case due to hostility to his religious views arguably expressed by two members of the Commission during the hearing process. Justice Ginsburg observed in dissent that there was no evidence of a lack of neutrality on the part of the Colorado Court of Appeals, and she agreed with that court’s conclusion that application of the public accommodations law to the bakery did not violate the 1^st Amendment. In his opinion for the Court, Justice Kennedy noted Supreme Court precedent that generally private actors, such as businesses, do not have a 1^st Amendment Free Exercise right to fail to comply with the requirements of state laws of general application that do not specifically target religious practices or beliefs.

Finally, in Bostock v. Clayton County, Georgia,140 S. Ct. 1731 (2020), noted above, Justice Ginsburg joined Justice Gorsuch’s opinion for the Court holding that discrimination in employment because of sexual orientation or transgender status is, at least in part, discrimination because of sex and thus actionable under Title VII of the Civil Rights Act of 1964. The vote in this case was 6-3, with dissenting opinions by Justice Alito, joined by Thomas, and by Justice Brett Kavanaugh. In his dissent, Justice Alito asserted that the reasoning of the Court’s opinion would affect the interpretation of more than 100 provisions of federal law, which he listed in an appendix to his opinion. The immediate effect of the opinion was to ratify the position of the Equal Employment Opportunity Commission, which had earlier recognized its jurisdiction over such claims, and to extend protection against discrimination on these grounds to employees in the majority of states where state or local laws did not provide such protection, although private sector protection under Title VII is limited to employers with at least 15 employees, thus missing the majority of private sector employers. This decision, which consolidated appeals from three circuits, presented the Court’s first merits ruling on a transgender rights case since Farmer v. Brennan (1993), noted above, although of course the marriage equality rulings, sub silentio, effectively overruled decisions by several state courts refusing to recognize marriages involving a transgender spouse that were challenged is being invalid “same-sex” marriages.

In her career prior to her Supreme Court and D.C. Circuit Court of Appeals service, Justice Ginsburg taught at Rutgers and Columbia Law Schools and was the founder and first director of the American Civil Liberties Union’s Women’s Rights Project. Litigation by that Project under her direction persuaded the Supreme Court in a series of important rulings beginning with Reed v. Reed in 1971 to recognize sex discrimination claims under the Equal Protection Clause, laying the doctrinal foundation for equal protection claims by LGBT litigants in later years. Although she was seen as a moderate on many issues at the time of her appointment to the Court by President Bill Clinton, she went on to become a leader of the Court’s progressive wing and in the 21^st century a frequent and very pointed dissenter as the center of gravity of the Court moved in a more conservative direction with the appointment of justices by George W. Bush and Donald J. Trump.

Justice Ginsburg’s death left a Supreme Court vacancy less than two months before national elections for President and Congress. Senate Republicans, who had blocked consideration of President Barack Obama’s nomination of D.C. Circuit Chief Judge Merrick Garland after Justice Scalia died in February 2016, arguing that a Supreme Court appointment should not be made in a presidential election year, now claimed that this was no bar to approving a replacement because the President and the incumbent Senate majority were of the same party. President Trump announced his nomination of Judge Amy Coney Barrett of the 7^th Circuit Court of Appeals on September 26. Based on her record, if she is confirmed Judge Barrett would likely move the Court sharply to the right, with a 6-3 Republican-appointed conservative majority for the first time in generations, leading to discussion among Democrats about the possibility of expanding the Court if former Vice-President Joseph R. Biden is elected president and Democrats win a majority in the Senate. Such a plan would require abolishing the filibuster rule by which a minority in the Senate can block a floor vote on legislation, unless the Republicans retained fewer than 40 seats as a result of the election and thus would be unable to block legislation under the filibuster rule without successfully recruiting some Democrats to join them. Since the filibuster rule was repealed by a bare majority of the Senate in 2017 in order to confirm Justice Gorsuch in the face of a potential Democratic filibuster, it appeared likely at the time Trump announced his nomination that Judge Barrett will be confirmed, but the timing of a floor vote had not been announced by the end of September.

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