New York Law School

Art Leonard Observations

Posts Tagged ‘United States Supreme Court’

Liberty Counsel Revives Assault on New Jersey Conversion Therapy Ban

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

Usually the U.S. Supreme Court’s refusal to review a lower court decision puts an end to the case, but Liberty Counsel, a right-wing religious group that represents psychologists in New Jersey who want to provide conversion therapy to “change” people from gay to straight, has seized upon an opening created by a U.S. Supreme Court decision from last June to revive their constitutional attack on New Jersey’s law prohibiting licensed professional counselors from providing such therapy to minors.  On February 11, the organization petitioned the Supreme Court to effectively reopen the case.  King v. Governor of New Jersey & Garden State Equality.

Governor Chris Christie signed the measure into law on August 19, 2013.  Liberty Counsel promptly filed suit on behalf of two psychologists and their patients, as well as the National Association for Research and Therapy of Homosexuality (NARTH), and the American Association of Christian Counselors, claiming that the measure violated the constitutional rights of plaintiffs.

U.S. District Judge Freda L. Wolfson granted the state’s motion for summary judgment, finding no constitutional violation (see 981 F. Supp. 2d 296), and the plaintiffs fared no better before the U.S. Court of Appeals for the 3rd Circuit, based in Newark, which upheld Judge Wolfson’s ruling on September 11, 2014 (see 767 F. 3d 216).

Wolfson found the measure to be a regulation of professional conduct, only incidentally affecting speech.  As such, she held that the challenge should be rejected as long as the legislature had a rational basis for enacting the law.  She found that the legislative record about the inefficacy and harm of such therapy was sufficient to meet the test.

On appeal, the three-judge panel disagreed with Judge Wolfson to the extent of finding that the ban as applied to “talk therapy” is a content-based regulation of speech, not just a regulation of conduct with an incidental effect on speech.  But the appeals court unanimously rejected the plaintiffs’ argument that the statute was consequently subject to the strict scrutiny test, under which it would be presumed to be unconstitutional unless New Jersey could prove that it was narrowly tailored to achieve a compelling state interest.

Instead, wrote Circuit Judge D. Brooks Smith for the panel, the speech involved in providing conversion therapy is “professional speech,” subject to state regulation.  As such, the court ruled, the state could prevail under the less demanding “heightened scrutiny” test by showing that the ban substantially advanced an important state interest, and that the legislative record was sufficient to uphold the law.

Liberty Counsel petitioned the Supreme Court for review.  That petition was denied on May 4, 2015 (see 135 S. Ct. 2048).  The Supreme Court also denied a petition to review a similar decision by the San Francisco-based 9th Circuit Court of Appeals in a case brought by, among others, Dr. David Pickup, in which that court rejected a similar challenge to California’s ban on conversion therapy.  (Dr. Pickup is also a plaintiff in the case challenging a conversion therapy ban in Tampa, Florida, about which we blogged earlier.)  Judge Wolfson relied on the 9th Circuit’s ruling in finding that conversion therapy statutes can be upheld as within the traditional state power to regulate the conduct of licensed professionals.

More than a dozen jurisdictions have since passed such bans, and attempts to challenge them in the courts have similarly been unsuccessful.  But the Supreme Court may have upset this trend by its ruling on June 26, 2018, in National Institute of Family and Life Advocates (NIFLA) v. Becerra, 138 S. Ct. 2361.  NIFLA challenged a California law that required licensed pregnancy-related clinics to inform their clients about the availability of publicly-funded family-planning services, including contraception and abortions, and non-licensed facilities to provide notices stating that they were not licensed by the state.  The Supreme Court agreed with NIFLA that the statute violated the 1st Amendment protection for freedom of speech by compelling the plaintiffs to speak the government’s message.

In defending the statute, California relied on the conversion therapy decisions from the 3rd and 9th Circuits.  This provoked Justice Clarence Thomas, writing for the 5-4 majority, to reject the idea that “professional speech” in the context of regulated, licensed professions was entitled to any lesser constitutional protection than other speech.  After summarizing these and other cases, Thomas wrote: “But this Court has not recognized ‘professional speech’ as a separate category of speech.  Speech is not unprotected merely because it is uttered by ‘professionals.’  This court has ‘been reluctant to mark of new categories of speech for diminished constitutional protection.’”

Thomas went on to write that there were only two circumstances in which the Supreme Court had provided lesser protection to “professional speech”: “First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech.’  Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech.”

Thus, at least by implication, a majority of the Supreme Court ruled last June that states passing conversion therapy bans will have to meet the demanding strict scrutiny test when they are challenged under the 1st Amendment.  Unless, of course, they can show that this is really a regulation of professional conduct with incidental effect on speech, an approach that worked in the 9th Circuit.  Although Thomas’s comments in NIFLA suggest this may be a difficult task, it is not necessarily impossible.

Reacting to the Supreme Court’s NIFLA ruling, Liberty Counsel jumped into action to try to revive its challenge to the New Jersey law.  First, it filed a Motion with the 3rd Circuit Court of Appeals, demanding that it recall the Mandate it had issued to the District Court in 2014 to dismiss the challenge to the statute.  Liberty Counsel argued that the Supreme Court’s ruling had “abrogated” the 3rd Circuit’s decision, thus the 3rd Circuit should acknowledge that its 2014 ruling was erroneous and correct the situation by “recalling” its Mandate.  Although Liberty Counsel does not explicitly state what would come next, presumably this would mean reversing the District Court’s grant of summary judgment to the state and resetting the case for argument under the strict scrutiny test.  The 3rd Circuit denied this Motion without a hearing or a written opinion.

Undaunted, Liberty Counsel then sought rehearing en banc (by the full 3rd Circuit bench), which was also denied, on November 13, 2018.

Liberty Counsel petitioned the Supreme Court on February 11, arguing that the 3rd Circuit “abused its discretion” by refusing to take action based on the Supreme Court’s “abrogation” of the 3rd Circuit’s prior opinion.  Liberty Counsel cites numerous cases in which it claims federal courts of appeals have “recalled” their mandates from lower courts after a Supreme Court decision in a similar case has rejected the reasoning underlying their earlier decision.  Liberty Counsel argues that the current situation is particularly stark because the Supreme Court has not only rejected the reasoning of the earlier case, but has cited and quoted from the earlier decision while doing so.

On the other hand, Justice Thomas did not use the term “abrogate” and his opinion in NIFLA recognizes that there may be circumstances in which state regulation of professional speech may be constitutional.  The 9th Circuit’s reasoning in the Pickup case, focused on the regulation of professional conduct rather than speech, may be such an instance, and the 3rd Circuit’s case could be reconsidered under such a standard.  In this case, Liberty Counsel may be following the lead of West Publishing Company, which operates the Westlaw legal research system.  If one finds the 3rd Circuit’s decision in Westlaw, one sees, in bold red above the citation of the case, the phrase “Abrogated by National Institute of Family and Life Advocates v. Becerra, U.S., June 26, 2018” and the characterization “Severe Negative Treatment.”

Liberty Counsel’s petition, a bit disingenuously, assumes this means that the New Jersey law is unconstitutional, but all it really means is that the 3rd Circuit applied too lenient a standard in ruling on the case and should have applied the strict scrutiny test to be in line with the Supreme Court ruling in NIFLA.

In its argument to the Supreme Court, Liberty Counsel contends that failing to grant the petition and to require the 3rd Circuit to “recall” its mandate will have harmful rippling effects throughout the nation.  It points to the steady progression of new state and local laws that have been enacted in reliance on the “incorrect” decisions by the 3rd and 9th Circuits, which it asserts will “chill” the ability of conversion therapy practitioners to “offer” this “cure” to their patients.

In January, U.S. Magistrate Judge Amanda Arnold Sansone relied on the Supreme Court’s NIFLA decision in her report recommending that the U.S. District Court issue a preliminary injunction against the application of the Tampa, Florida, conversion therapy ban to practitioners who provide “talk therapy.”  The complaint filed in federal court in Brooklyn last month by Alliance Defending Freedom, challenging New York City’s ordinance, is devised to raise the same arguments.  And it is predictable that either ADF or Liberty Counsel will file suit in an attempt to block the new state law enacted last month in New York raising similar arguments.

Although Liberty Counsel couches its petition as an attempt to have the court settle a dispute among lower courts about the proper way to respond when one of their decisions is substantially undermined in its reasoning by a subsequent Supreme Court ruling in a similar case, it is at heart an attempt to relitigate the question whether conversion therapy practitioners have a 1st Amendment right to ply their trade free of government restrictions.  It is a blatant attempt to get the issue of conversion therapy back before the Supreme Court now that Trump’s appointments have solidified the conservative majority.  And, at that, it is a test of science against homophobia and transphobia.

Supreme Court Stays Two Preliminary Injunctions Against Transgender Military Ban, Leaving Only One Injunction in Place

Posted on: January 22nd, 2019 by Art Leonard No Comments

On January 22 the Supreme Court granted applications by Solicitor General Noel Francisco to stay the two nationwide preliminary injunctions that were issued in December 2017 by U.S. District Judges on the West Coast to stop President Donald Trump’s ban on military service by transgender individuals from going into effect. The vote was 5-4, with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan indicating that they would have denied the applications for stays. Although the stays mean that the Trump Administration’s transgender military ban is no longer blocked by those two injunctions, it is still blocked by an injunction issued by a federal judge in Baltimore.

The Supreme Court issued these two stays “pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought.” At the same time, the Supreme Court denied the Solicitor General’s petitions to leapfrog the 9th Circuit and take its appeal of the district court actions for direct review. These petitions were practically rendered moot, at least for now, by the Supreme Court’s granting of the stays. When the Court made its announcement at 9:30 am on January 22, the 9th Circuit had not yet ruled, although a three-judge panel heard oral arguments on the government’s appeal several months ago.

The Supreme Court’s action did not immediately allow the Defense Department to implement the ban, however. That awaits a ruling by U.S. District Judge George L. Russell, III, who is still considering the government’s motion to dissolve the nationwide preliminary injunction issued on November 21, 2017, by now-retired U.S. District Judge Marvin J. Garbis in Baltimore in Stone v. Trump. That case was reassigned to Judge Russell after Judge Garbis retired last June. On November 30, Judge Russell issued his only ruling in the case so far, largely affirming an August 14 ruling by Magistrate Judge A. David Copperthite on disputed discovery issues in the case. However, in his November 30 ruling, Judge Russell rejected the government’s contention that certain “findings of fact” by Judge Copperthite were unreasonable. Among those were Copperthite’s finding that the version of the ban announced by Defense Secretary James Mattis in February 2018, which Trump authorized Mattis to put into effect, was still a ban on military service by transgender people, despite differences from the version described by the White House in an August 2017 memorandum.

On January 4, 2019, the U.S. Court of Appeals for the D.C. Circuit vacated a similar preliminary injunction that was issued on October 31, 2017, by Judge Colleen Kollar-Kotelly of the District Court in Washington, D.C., and directed Judge Kollar-Kotelly to reconsider her conclusion that the version of the ban that President Trump authorized Mattis to implement was essentially the same ban that she had enjoined. The D.C. Circuit panel unanimously ruled, based on the government’s allegations about the differences in the policies, that her conclusion was “clearly erroneous.” The D.C. Circuit’s ruling was, of course, not binding on Judge Russell, because Maryland is under the jurisdiction of the 4th Circuit Court of Appeals, but it may influence Judge Russell’s consideration of that issue while he ponders how to rule on the government’s motion pending in his court.

The government’s position in all four of the pending cases challenging the constitutionality of the ban has been that the “Mattis Policy” announced in February 2018 was significantly different from the version of the ban described in Trump’s August 2017 Memorandum, and thus that the four preliminary injunctions against the August 2017 version should be vacated as moot.

The government now takes the position that the so-called “Mattis Policy,” which bans service by individuals who have been diagnosed with gender dysphoria, is no longer a categorical ban of all transgender service members, as described in Trump’s notorious tweets of July 26, 2017. For one thing, the Mattis Policy carves out an exception, allowing transgender individuals who are already serving to continue doing so despite being diagnosed with gender dysphoria, although those who have not transitioned when the new policy goes into effect will not be allowed to do so and still remain in the service. (This exception, of course, contradicts the government’s argument that individuals diagnosed with gender dysphoria are not fit to serve.) For another thing, the Defense Department contends that because not all individuals who identify as transgender have either been diagnosed with gender dysphoria or desire to make a medical transition, the basis for the disqualification for military service has effectively been shifted by the Mattis Policy from gender identity to gender dysphoria. As such, the government argues, the district courts’ conclusion that the ban discriminates on the basis of transgender status in violation of Equal Protection no longer applies. Instead, the ban is based on a medical condition, as to which the courts should defer to military expertise, because courts have never second-guessed the military’s determination that people with a diagnosed medical condition may be unfit to serve.

The Supreme Court’s action does not grant the government’s request to dissolve the preliminary injunctions that were issued in December 2017 by District Judges Marsha J. Pechman (Seattle) and Jesus Bernal (Riverside, California), and thus should not be interpreted as taking a position on whether those injunctions should have been issued, but merely agrees to the government’s request to stay their effect while the 9th Circuit decides how to rule on the government’s appeal from those district judges’ denial of the government’s motions to dissolve the injunctions. In the meantime, all four district courts are dealing with contentious arguments as the government refuses to comply with the plaintiffs’ discovery demands, making it difficult for the courts to proceed with the cases. These cases are raising significant issues about the extent to which the government should be forced to disclose details of its decision-making process that are crucial to determining whether the policy they are now defending was adopted for constitutionally impermissible reasons.

Attention now focuses on Judge Russell, whose eventual ruling on the government’s motion to dissolve Judge Garbis’s preliminary injunction will decide, at least for the moment, whether the transgender ban goes into effect or remains blocked while the litigation continues. If Judge Russell follows the lead of the other district judges, he will deny the motion and Solicitor General Francisco will likely petition the Supreme Court to grant a stay similar to the ones issued on January 22. The question now is whether Judge Russell finds the D.C. Circuit’s analysis to be persuasive. If he does, the ban may go into effect, even as all four cases challenging the ban continue to be fiercely litigated by the plaintiffs.

As to the stays issued on January 22, the Supreme Court’s Order says that if the government is dissatisfied with the 9th Circuit’s disposition of its appeals and files new Petitions for Supreme Court review, the stays will remain in effect. If the Court ultimately denies such petitions, “this order shall terminate automatically.” If the Court grants those petitions, the stay would remain in effect until the Supreme Court rules on the appeal.

Supreme Court May Decide Another Gay Wedding Cake Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kennedy Retirement from Supreme Court May Doom LGBT Rights Agenda

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

Justice Anthony M. Kennedy’s announcement on June 27 that he would retire from active service on the U.S. Supreme Court as of July 31, 2018, opening up a vacancy for President Donald J. Trump to fill with the assistance of the bare majority of Republican United States Senators, portends a serious setback for LGBT rights in the years ahead. Kennedy cast a crucial vote and wrote powerfully emotional opinions to establish the dignity of LGBT people under the Constitution’s 5th and 14th Amendments.  Justice Kennedy will be remembered as the author of four major Supreme Court opinions that worked a revolution in United States constitutional law concerning the rights of sexual minorities.

Before his opinion for the Court in Romer v. Evans, 517 U.S. 620, was announced on May 20, 1996, the Court had never ruled in favor of gay litigants in an Equal Protection Case.   In Romer, the Court invalidated a Colorado constitutional amendment, adopted in a voter initiative that banned the state from protecting gay people from discrimination.  Kennedy condemned the measure as an attempt to render gay people as “strangers to the law,” and found it to be an obvious violation of equal protection, leading Justice Scalia to complain in dissent that the Court’s opinion was inconsistent with its ruling a decade earlier that sodomy laws were constitutional.

Before his opinion for the Court in Lawrence v. Texas, 539 U.S. 558, was announced on June 26, 2003, the Court had never used the Due Process Clause to strike down an anti-gay law. In Lawrence, Kennedy wrote for five members of the Court that the Texas Homosexual Conduct Law, by making private consensual adult gay sex a crime, had unconstitutionally abridged the liberty of gay people.  (Justice O’Connor concurred in an opinion focused solely on the equal protection clause.)  This time, Justice Scalia’s dissent denounced the Court’s opinion as opening the path to same-sex marriage.

His opinions in United States v. Windsor, 570 U.S. 744 (2013) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015), established a right to marriage equality for LGBT people in the United States, the most populous nation so far to allow same-sex couples to marry. In Windsor, Kennedy wrote for five members of the Court that the Defense of Marriage Act, a statute requiring the federal government to refuse to recognize same-sex marriages that were valid under state law, violated both the Due Process and Equal Protection requirements of the 5th Amendment, emphasizing the affront to the dignity of gay married couples.  In dissent, of course, Justice Scalia accused the Court of providing a framework for lower courts to strike down state bans on same-sex marriage.  Scalia’s dissent was prophetic, as just two years later the Court ruled in Obergefell that the 14th Amendment’s guarantees of Due Process and Equal Protection required the states to allow same-sex couples to marry and to recognize such marriages for all legal purposes.  In the intervening years, lower courts had cited and quoted from Kennedy’s Windsor opinion (and Scalia’s dissent) in finding bans on same-sex marriage unconstitutional.  Kennedy’s vote with the majority in the per curiam ruling in Pavan v. Smith, 137 S. Ct. 2075 (2017), reinforced Obergefell’s holding that couples in same-sex marriages enjoyed the “full constellation” of rights associated with marriage, as did his vote in V.L. v. E.L., 136 S. Ct. 1017 (2016), affirming that states were obligated to extend full faith and credit to second-parent adoptions granted by the courts of other states.

Justice Kennedy also joined the majority in a concurring opinion in Christian Legal Society v. Martinez, 561 U.S. 661 (2010), rejecting a 1st Amendment challenge to a public university law school’s refusal to extend official recognition to a student group that overtly discriminated against gay students.

When LGBT litigants lost Kennedy’s vote, however, they lost the Court. In his most recent LGBT-related decision, Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 WL 2465172, 2018 U.S. LEXIS 3386 (June 4, 2018), while reiterating his concern for the dignity of gay people to be able to participate without discrimination in the public marketplace, Kennedy could not bring himself to reject the religious free exercise claims of a Christian baker, and so engineered an “off ramp” by embracing a dubious argument that the Colorado Civil Rights Commission was so overtly hostile to the baker’s religious beliefs that he had been deprived of a “neutral forum” to decide his case.  Thus, Kennedy was able to assemble a 7-2 vote to overturn the Colorado Court of Appeals ruling in that case, without directly ruling on whether the baker’s religious objections would override the non-discrimination requirements of Colorado law, leading to oversimplified media headlines suggesting that the baker had a 1st Amendment right to refuse to make the cake.

Kennedy also joined the majority (without writing) in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), a 5-4 ruling holding that the Boy Scouts had a 1st Amendment right to deny membership to an out gay Assistant Scoutmaster, based on BSA’s rights of free speech and expressive association. He was part of the unanimous Courts that rejected a constitutional challenge to the Solomon Amendment, a law denying federal money to schools that barred military recruiters (mainly because of the Defense Department’s anti-gay personnel policies), in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), and that, reversing the Massachusetts Supreme Judicial Court, held that a gay Irish-American group could be barred from marching in Boston’s St. Patrick’s Day Parade in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995).  However, in those cases all of the more liberal members of the Court joined in the unanimous opinions, so Kennedy’s vote did not make a difference to the outcome.

While Justice Kennedy’s majority opinions in the major LGBT rights cases were triumphs for LGBT rights, they were not viewed as unalloyed triumphs in the halls of legal academe. Commentators who agreed with the results were frequently harshly critical of Kennedy’s opinions in terms of their articulation of legal reasoning and doctrinal development.  The Romer decision left many scratching their heads, trying to figure out whether the Court had applied some sort of “heightened scrutiny” to the Colorado constitutional amendment, puzzled about the precedential meaning of the ruling for later LGBT-related equal protection challenges.  There was similar criticism of the opinions in Lawrence, Windsor, and Obergefell.  Kennedy failed to use the doctrinal terminology familiar to constitutional law scholars and students, such as “suspect classification,” “heightened scrutiny,” “compelling state interest” and the like, leaving doubt about the potential application of these rulings.  Indeed, three justices dissenting in Pavan v Smith in an opinion by Justice Gorsuch claimed that the Court’s Obergefell ruling had left undecided the question in Pavan – whether Arkansas had to list lesbian co-parents on birth certificates – and the Texas Supreme Court expressed similar doubts about the extent of Windsor and Obergefell in refusing to put an end to a dispute about whether the city of Houston had to extend employee benefits eligibility to the same-sex spouses of city employees.  While some courts, such as the 9th Circuit Court of Appeals, saw Kennedy’s opinions as extending protected class status to gay people for equal protection purposes, others insisted that those rulings had produced no such precedent.

Justice Kennedy’s retirement effective July 31, 2018, seemed to signal a likely retreat from LGBT rights leadership by the Supreme Court. Assuming that President Trump will nominate and the Republican majority in the Senate will confirm a justice with the ideological and doctrinal profiles of Neil Gorsuch or Samuel Alito, the crucial fifth vote to make a pro-LGBT majority would most likely be missing, although Supreme Court appointments are a tricky business.  In the past, some presidents have been astounded at the subsequent voting records of their appointees.  President Dwight Eisenhower called his appointment of William J. Brennan one of the worst mistakes of his presidency, as Brennan went on to be a leader of the Court’s left wing.  Had he lived long enough to see it, President John F. Kennedy might have been similarly disappointed by the rightward drift of Byron R. White, his nominee who wrote the blatantly homophobic decision in Bowers v. Hardwick, 478 U.S. 186 (1986), that upheld Georgia’s felony sodomy law, calling a claim to constitutional protection by gay people “at best facetious.”  President Richard Nixon was undoubtedly disappointed with the leftward drift of Harry Blackmun, author of Roe v. Wade, 410 U.S. 113 (1973), the Court’s key abortion rights decision, and vigorous dissenter in Bowers v. Hardwick.  President Ronald Reagan appointed Anthony Kennedy assuming he would provide a vote to strike down abortion rights, but Kennedy was part of a moderate Republican coalition (joining with Justices Sandra Day O’Connor and David Souter) that joined with the remaining Democratic appointees to reaffirm those rights in Planned Parenthood v. Casey, 505 U.S. 833 (1992).  President George H. W. Bush’s appointment of Souter ended up being a massive disappointment to conservatives, as Souter frequently voted with the Democratic appointees and the leftward veering John Paul Stevens, who had been appointed by President Gerald Ford and ended up being much more liberal than expected.  Souter was so disillusioned by the Court’s 5-4 decision in Bush v. Gore, 531 U.S. 98 (2000), handing the presidency to George W. Bush after Albert Gore decisively won the national popular vote and may well have been entitled to the Florida electoral votes needed to put him over the top, that he retired from the Court prematurely.

In other words, the past records of Supreme Court nominees are not inevitably accurately predictive prologues to how they will vote on the Court over the long term. Supreme Court justices frequently serve for several decades (Kennedy’s service stretched over 30 years), and the looming constitutional issues at the time of their appointment are inevitably replaced by new, unanticipated issues over the course of their service.  Also, the Supreme Court is like no other court in the United States, in which the constraints of precedent faced by lower court judges are significantly loosened, since the Supreme Court can reverse its prior holdings, and in which theories and trends in constitutional and statutory interpretation evolve over time.  The examples of Brennan, Souter and Kennedy have caused the confirmation process to change drastically, and the possibility of an appointee turning out a total surprise appears diminished, but it is not entirely gone.  One can hope that a Trump appointee will not be totally predictable in the Alito/Gorsuch orbit, although that may be unduly optimistic when it comes to LGBT issues.  In his first full term on the Court, Justice Gorsuch has not cast 100 predictable votes. . .

Supreme Court Orders “Further Consideration” by Washington State Courts in Wedding Flowers Case

Posted on: June 25th, 2018 by Art Leonard No Comments

On June 25, the Supreme Court finally acted on a petition for certiorari filed last summer in Arlene’s Flowers, Inc. v. State of Washington, No. 17-108, in which Alliance Defending Freedom (ADF) sought review of the Washington Supreme Court’s ruling that unanimously affirmed the Benton County Superior Court’s decision that Arlene’s Flowers and its proprietor, Barronelle Stutzman, had violated the state’s Law Against Discrimination and its Consumer Protection Act by refusing to sell wedding flowers to a same-sex couple.  The Petition was docketed at the Supreme Court on July 14, 2017, after the Court had recently granted review in Masterpiece Cakeshop v. State of Colorado.  The Court did not place this Petition on the agenda for any of its certiorari conferences until after rendering its decision in Masterpiece Cakeshop on June 4, 2018.  Then on June 25, it granted the petition, vacated the lower court’s ruling, and sent the case back for “further consideration” in light of the Masterpiece ruling.

 

This case arose from an incident that occurred shortly after Washington began to issue same-sex marriage licenses as a result of the marriage equality litigation within the 9th Circuit.  Robert Ingersoll and Curt Freed, a same-sex couple planning their wedding, went to Arlene’s Flowers to order floral decorations for what they planned to be a big event.  Ingersoll had been a frequent customer of this business and had established a personal relationship with the proprietor, Barronelle Stutzman.  When he asked her to provide the flowers for his wedding, however, she told him that she could not design flowers for his wedding because of her relationship with Jesus Christ.  She gave him the names of three other florists, and claims he said he understood her decision and “they hugged before he left.”  Ingersoll and Freed decided to scale down their wedding plans as a result of this and evidently talked about their experience to others, generating news reports that spurred the state’s Attorney General to action.  Around the same time the state’s lawsuit was filed, Ingersoll and Freed, represented by the ACLU, filed their own suit, and the two cases were consolidated, resulting in State v. Arlene’s Flowers, 2015 WL 720213 (Wash. Super. Ct., Benton Co.), and State v. Arlene’s Flowers, 187 Wash. 2 804, 389 P.2d 543 (2017).  (Washington State allows direct action to enforce the statutes in question without requiring exhaustion of administrative remedies, and the Washington Supreme Court accepted Arlene’s Flowers’ petition for direct review, bypassing the state’s intermediate appellate court.) The state courts found that the defendant had violated the statutes, and that she was not entitled to any 1st Amendment defense.

Within days of the Masterpiece ruling, ADF had filed a supplementary brief in the Supreme Court on behalf of Arlene’s Flowers and Stutzman, urging the Court to grant certiorari, vacate the state court ruling, and remand for consideration in light of Masterpiece.  The Respondents (State of Washington and Ingersoll and Freed) quickly filed responding briefs, arguing that certiorari should be denied because there was nothing in the history of this case that suggested anything like the grounds on which Masterpiece had been decided.

In its supplementary brief, ADF mounted several arguments in support of its contention that Masterpiece could require a reversal in this case because of “hostility” to religion by the State of Washington.  First, ADF argued that the Attorney General’s action in filing suit against Barronelle Stutzman in both her professional and personal capacities, reacting to news reports and without the same-sex couple having filed their own discrimination claim, evinced hostility to religion.  Second, ADF argued that the trial court’s reliance on and quotation from a case cited by the Attorney General in which the court ruled against a retail store that refused on religious grounds to serve African-Americans was, in effect, comparing Barronelle to the “racist” owner of the store, further evincing “hostility” to her religion. Based on this, ADF argued, “the State, in short, has treated Barronelle with neither tolerance nor respect,” quoting Justice Kennedy’s phrase from Masterpiece.  ADF also pointed to the state’s failure to initiate litigation against a coffee-shop owner in Seattle who, according to a radio talk show, had “profanely berated and discriminated against Christian customers,” apparently seeking to draw an analogy to a situation described by Kennedy in Masterpiece, of the Colorado Civil Rights Commission dismissing charges against three bakers who had refused to bake anti-gay cakes in the wake of the Commission’s ruling against Masterpiece Cakeshop.

The State of Washington and the ACLU quickly filed responsive briefs, disputing the accuracy and relevance of ADF’s supplementary brief. For one thing, unlike Masterpiece Cakeshop, Arlene’s Flowers did not raise any issued in its original Petition about “hostility to religion” by the state and, Respondents argued, could not now introduce a new issue into the case.  For another, they pointed out, a party to litigation citing a case that supports its legal position cannot be considered “hostility to religion.”  After all, Justice Kennedy cited a similar federal case involving a restaurant that refused to serve African-Americans in his opinion in Masterpiece to support the point that it is well established that there is no general free exercise exemption from complying with public accommodations laws.  This doesn’t show hostility to religion by the court.  Furthermore, the A.G.’s filing of a discrimination complaint, in itself, is no evidence of animus or hostility, but merely doing his job, and the A.G. “played no adjudicatory role in the process of deciding this case.”  What Masterpiece required was that the forum not be hostile religion, and the forum is the court, not the parties to the case.

Furthermore, the A.G.’s brief pointed out, there was doubt about the accuracy of the talk radio report cited by ADF, but notwithstanding that, even though nobody filed a discrimination claim against the coffee shop owner, the chair of the Washington Human Rights Commission “publicly announced that she would send a letter to the business owner explaining Washington law,” and the owner subsequently announced, unlike Barronelle Stutzman, that “he will no longer refuse service to the customers he initially turned away.” Contrast this with the situation in Masterpiece, where Justice Kennedy counted as evidence of hostility that the Colorado Commission had rejected discrimination claims against three bakers who declined to make anti-gay cakes while ruling against Jack Phillips for refusing to make a same-sex wedding cake.  (As Justice Breyer explained in his concurring opinion joined by Justice Kagan, there was no inconsistency here as the two situations were clearly distinguishable.)

In any rate, a strong argument can be made that there is no basis for order “further consideration” of Arlene’s Flowers in light of Masterpiece.  In the days following a Supreme Court decision, the Court usually moves quickly to dispose of petitions in other cases that had been “on hold” pending its ruling.  It is not uncommon in such “mopping up” situations to send cases back to the lower courts for a determination whether the Supreme Court decision would require a different result.  But it is also common to merely deny the petition if the lower court ruling is clearly consistent with the new Supreme Court decision.  In this case, the Court’s action may be reacting to ADF’s assertion in its supplementary brief that there is evidence of hostility to religion in the proceedings in the Washington courts, and to a common practice by the Court of sending cases back for reconsideration if any member of the Court is troubled about possible inconsistency.  On the other hand, it may signal some ambiguity about exactly what the Court was holding in Masterpiece, and a desire by the Court, ultimately, to consider the underlying legal questions on the merits without any complications involving the nature of the lower court proceedings.

The Supreme Court’s decision to vacate the Washington Supreme Court’s ruling is certainly cause for concern, since that ruling is totally consistent with what Justice Kennedy said about the free exercise and free speech arguments that ADF advanced in Masterpiece, and a careful reading of Kennedy’s opinion shows that the Court did not back away, at least overtly, from its prior precedents holding that there is not a free exercise exemption from complying with laws banning discrimination in public accommodations.  Time will tell whether a firm majority of the Court is actually ready to reassert that position on the merits in an appropriate case.  Meanwhile, opponents of religious exemptions can take some comfort from the actions by the Arizona Court of Appeals and the Oregon Supreme Court (refusing to review a court of appeals ruling in another wedding cake case) in the weeks following the Masterpiece rule.

Supreme Court Denies Review in Title VII Sexual Orientation Discrimination Case

Posted on: December 11th, 2017 by Art Leonard No Comments

The U.S. Supreme Court announced on December 11 that it will not review a decision by a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals, which ruled on March 10 that a lesbian formerly employed as a security guard at a Georgia hospital could not sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964.  The full 11th Circuit denied a motion to reconsider the case on July 10, and Lambda Legal, representing plaintiff Jameka Evans, filed a petition with the Supreme Court seeking review on September 7.  Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), rehearing en banc denied, 7/6/2017, cert. denied, 2017 WL 4012214 (12/11/2017).

At the heart of Lambda’s petition was an urgent request to the Court to resolve a split among the lower federal courts and within the federal government itself on the question whether Title VII, which bans employment discrimination because of sex by employers that have at least 15 employees, can be interpreted to ban discrimination because of sexual orientation.

Nobody can deny that members of Congress voting on the Civil Rights Act in 1964 were not thinking about banning sexual orientation discrimination at that time, but their adoption of a general ban on sex discrimination in employment has been developed by the courts over more than half a century to encompass a wide range of discriminatory conduct reaching far beyond the simple proposition that employers cannot discriminate against an individual because she is a woman or he is a man.

Early in the history of Title VII, the Supreme Court ruled that employers could not treat people differently because of generalizations about men and women, and by the late 1970s had accepted the proposition that workplace harassment of women was a form of sex discrimination. In a key ruling in 1989, the Court held that discrimination against a woman because the employer considered her inadequately feminine in her appearance or behavior was a form of sex discrimination, under what was called the sex stereotype theory, and during the 1990s the Court ruled that a victim of workplace same-sex harassment could sue under Title VII, overruling a lower court decision that a man could sue for harassment only if he was being harassed by a woman, not by other men.  In that decision for a unanimous court, Justice Antonin Scalia opined that Title VII was not restricted to the “evils” identified by Congress in 1964, but could extend to “reasonably comparable evils” to effectuate the legislative purpose of achieving a non-discriminatory workplace.

By the early years of this century, lower federal courts had begun to accept the argument that the sex stereotype theory provided a basis to overrule earlier decisions that transgender people were not protected from discrimination under Title VII.  There is an emerging consensus among the lower federal courts, bolstered by rulings of the Equal Employment Opportunity Commission (EEOC), that gender identity discrimination is clearly discrimination because of sex, and so the 11th Circuit Court of Appeals ruled several years ago in a case involving a transgender woman fired from a research position at the Georgia legislature.

However, the idea that some variant of the sex stereotype theory could also expand Title VII to protect lesbian, gay or bisexual employees took longer to emerge.  It was not until 2015 that the EEOC issued a decision in the Baldwin case concluding that sexual orientation discrimination is a form of sex discrimination, in part responding to the sex stereotype decisions in the lower federal courts.  And it was not until April 4 of this year that a federal appeals court, the Chicago-based 7th Circuit Court of Appeals, approved that theory in a strongly worded opinion by a decisive majority of the entire 11-judge circuit bench, just a few weeks after the 11th Circuit panel ruling in the Jameka Evans case.  Writing for the 7th Circuit in the Hively  case, Judge Diane Wood said, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

The 11th Circuit panel’s 2-1 decision to reject Jameka Evans’ sexual orientation discrimination claim seemed a distinct setback in light of these developments.  However, consistent with the 11th Circuit’s prior gender identity discrimination ruling, one of the judges in the majority and the dissenting judge agreed that Evans’ Title VII claim could be revived using the sex stereotype theory based on how she dressed and behaved, and sent the case back to the lower court on that basis.  The dissenting judge would have gone further and allowed Evans’ sexual orientation discrimination claim to proceed under Title VII.  The other judge in the majority strained to distinguish this case from the circuit’s prior sex stereotype ruling, and would have dismissed the case outright.

The 7th Circuit’s decision in April opened up a split among the circuit courts in light of a string of rulings by several different circuit courts over the past several decades rejecting sexual orientation discrimination claims by gay litigants, although several of those circuits have since embraced the sex stereotype theory to allow gay litigants to bring sex discrimination claims under Title VII if they could plausibly allege that they suffered discrimination because of gender nonconforming dress or conduct.  Other courts took the position that as long as the plaintiff’s sexual orientation appeared to be the main reason why they suffered discrimination, they could not bring a Title VII claim.

In recent years, several federal trial judges have approved an alternative argument: that same-sex attraction is itself a departure from widely-held stereotypes of what it means to be a man or a woman, and thus that discrimination motivated by the victim’s same-sex attraction is a form of sex discrimination under Title VII.  Within the New York-based 2nd Circuit, several trial judges have recently embraced this view, but three-judge panels of the Court of Appeals consistently rejected it.  Some progress was made last spring, however, when a three-judge panel in Christiansen v. Omnicom Group overruled a trial judge to find that a plaintiff whose sexual orientation was clearly a motivation for his discharge could bring a sex stereotype Title VII claim when he could plausibly allege behavioral nonconformity apart from his same-sex attraction.

More recently, however, the 2nd Circuit agreed to grant en banc reconsideration to the underlying question and heard oral argument in September in Zarda v. Altitude Express on whether sexual orientation discrimination, as such, is outlawed by Title VII.  That case involved a gay male plaintiff whose attempt to rely alternatively on a sex stereotype claim had been rejected by the trial judge in line with 2nd Circuit precedent.  Plaintiff Donald Zarda died while the case was pending, but it is being carried on by his Estate.  Observers at the oral argument thought that a majority of the judges of the full circuit bench were likely to follow the lead of the 7th Circuit and expand the coverage of Title VII in the 2nd Circuit (which covers Connecticut, Vermont and New York).  With argument having been held more than two months ago, a decision could be imminent.

Much of the media comment about the Zarda case, as well as the questioning by the judges, focused on the spectacle of the federal government opposing itself in court.  The EEOC filed an amicus brief in support of the Zarda Estate, and sent an attorney to argue in favor of Title VII coverage.  The Justice Department filed a brief in support of the employer, and sent an attorney to argue that the three-judge panel had correctly rejected the plaintiff’s Title VII claim.  The politics of the situation was obvious: The Trump appointees now running the Justice Department had changed the Department’s position (over the reported protest of career professionals in the Department), while the holdover majority at the EEOC was standing firm by the decision that agency made in 2015.  As Trump’s appointment of new commissioners changes the agency’s political complexion, this internal split is likely to be resolved against Title VII protection for LGBT people.

This is clearly a hot controversy on a question with national import, so why did the Supreme Court refuse to hear the case?  The Court does not customarily announce its reasons for denying review, and did not do so this time.  None of the justices dissented from the denial of review, either.

A refusal to review a case is not a decision on the merits by the Court, and does not mean that the Court approves the 11th Circuit Court of Appeals’ decision.  It is merely a determination by the Court, which exercises tight control over its docket, not to review the case.  Hypothesizing a rationale, one might note that the plaintiff here has not suffered a final dismissal of her case, having been allowed by the 11th Circuit to file an amended complaint focusing on sex stereotype instead of sexual orientation, so she can still have her day in court and there is no pressing need for the Court to resolve the circuit split in her case.  One might also note that Georgia Regional Hospital did not even appear before the 11th Circuit to argue its side of the case, and did not file papers opposing Lambda Legal’s petition until requested to do so by the Court.

On October 11, the Supreme Court Clerk’s office distributed the Lambda petition and some amicus briefs supporting it to the justices in anticipation of their conference to be held October 27. The lack of a response by Georgia Regional Hospital evidently sparked concern from some of the justices, who directed the Clerk to ask the Hospital to file a response, which was filed by Georgia’s Attorney General on November 9, and the case was then put on the agenda for the Court’s December 8 conference, at which the decision was made to deny review.  The responsive papers argued, among other things, that the Hospital had not been properly served with the Complaint that initiated the lawsuit. Those kinds of procedural issues sometimes deter the Court from taking up a case.

For whatever reason, the Court has put off deciding this issue, most likely for the remainder of the current Term. The last argument day on the Court’s calendar is April 25, and the last day for announcing decisions is June 25.  Even if the 2nd Circuit promptly issues a decision in the Zarda case, the losing party would have a few months to file a petition for Supreme Court review, followed by a month for the winner filing papers responding to the Petition.  Even if the Court then grants a petition for review, thus starting the clock running for filing merits briefs and amicus briefs, it is highly likely that once all these papers are submitted, it will be too late in the Term for the case to be argued, so it would end up on the argument calendar for Fall 2018.

Which raises the further question of who would be on the Court when this issue is finally before it? Rumors of retirements are rife, and they center on the oldest justices, pro-LGBT Ruth Bader Ginsburg and conservative but generally pro-gay Anthony Kennedy.  If President Trump gets to nominate successors to either of them, the Court’s receptivity to gay rights arguments is likely to be adversely affected.

U.S. Supreme Court Denies Petition to Review Texas Supreme Court Ruling in Houston Benefits Case

Posted on: December 5th, 2017 by Art Leonard No Comments

On December 4 the U.S. Supreme Court rejected without explanation a petition from the City of Houston seeking review of the Texas Supreme Court’s June 30 ruling in Pidgeon v. Turner, which had cast doubt on whether the City was obligated under Obergefell v. Hodges, the 2015 marriage equality ruling, to provide same-sex spouses of Houston employees the same employee benefits offered to different-sex spouses.

A decision by the Supreme Court to deny review of a case is not a ruling on the merits of the case. In this case, it most likely means that there were not at least four members of the Court, the number required under the Court’s rules to grant a petition for review, who thought the Court should intervene in a lawsuit that is ongoing in the state trial court.  The Court’s action should not be construed as a decision approving the Texas Supreme Court’s ruling.  It is consistent with the Court’s tight control of its docket, under which sharply limits the number and type of cases that it takes up for review and rarely inserts itself into a case that has not received a final disposition in the lower courts.

Retired Texas Supreme Court Justice Wallace B. Jefferson and his law firm, Alexander Dubose Jefferson & Townsend LLP, filed the petition on behalf of Mayor Sylvester Turner and the City of Houston on September 15, several weeks after Lambda Legal had filed a new federal district court lawsuit on behalf of some Houston employees whose same-sex spouses are receiving benefits and who fear losing them in the state court litigation. Lambda’s suit was quickly dismissed by the federal trial judge as not “ripe” for review because the plaintiffs are receiving their benefits and it was likely, in the judge’s view, that the state trial court would rule that the benefits were legal in light of the current state of the law.

The Texas Supreme Court’s June 30 decision, which reversed a ruling by the Texas Court of Appeals, was not a final disposition of that case, instead sending it back to the trial court in Harris County for a hearing on the original claim by plaintiffs Jack Pidgeon and Larry Hicks, Republican anti-gay activists, that the City had unlawfully extended employee benefits eligibility to same-sex spouses of City employees in 2013.

Pidgeon and Hick first started litigating against the City when then-Mayor Annise Parker extended benefits eligibility by executive action after receiving an opinion from the city attorney about the impact of the U.S. Supreme Court’s June 26, 2013, ruling, U.S. v. Windsor, which struck down part of the federal Defense of Marriage Act. Pidgeon and Hicks argued that under Texas statutory and constitutional law at the time, it was illegal for the City to extend the benefits, as the U.S. Supreme Court’s Windsor decision did not address the constitutionality of state laws banning same-sex marriage.

Pidgeon and Hicks had a plausible argument in 2013, enough to persuade the trial judge to issue a preliminary injunction against the City, which promptly appealed. The Court of Appeals sat on the appeal for a few years, waiting for the storm of marriage equality litigation in Texas and throughout the country to play out.  Less than a year after the Windsor decision, a federal trial judge in San Antonio ruled that the state’s ban on same-sex marriage was unconstitutional, but the state’s appeal languished in the 5th Circuit Court of Appeals until after the U.S. Supreme Court decided the Obergefell case on June 26, 2015.  A few days later the 5th Circuit affirmed the trial court’s ruling invalidating the Texas laws banning same-sex marriages.  Then the Texas Court of Appeals reversed the preliminary injunction, instructing the trial court to decide the case in accord with the 5th Circuit’s ruling.  The City then resumed providing the benefits, which it has continued to do.

Undaunted, Pidgeon and Hicks asked the Texas Supreme Court to review the Court of Appeals decision, arguing that the Court of Appeals erred by instructing the trial court to follow the 5th Circuit’s ruling because, as a technical matter, state courts are not bound by federal court of appeals rulings.  They argued, in effect, that the City was still bound to abide by the Texas state law banning recognition of same-sex marriages for purposes of public employee benefits, which had never been invalidated in the state courts and, they argued, was technically not declared unconstitutional by the U.S. Supreme Court, whose opinion in Obergefell only directly struck down state marriage bans in the states of the 6th Circuit, Ohio, Michigan, Kentucky, and Tennessee.

After lengthy deliberation, the Texas Supreme Court announced in September 2016 that it would not consider Pidgeon and Hicks’ appeal. This prompted a fervent campaign by Governor Greg Abbott and other elected officials to persuade the court to change its mind, stimulating thousands of Texans to flood the court with demands that it reverse the Court of Appeals decision.  The court ultimately bowed to this pressure, granted review, and issued its June 30 decision.

The Texas Supreme Court agreed that the Texas Court of Appeals should not have treated the 5th Circuit’s decision as binding on the trial court, and opined further that the Obergefell decision was just about whether same-sex couples could marry as a question of federal constitutional law, not what benefits they were entitled to if they married.  This was palpably wrong, as shown by another Supreme Court ruling, just days prior, in Pavan v. Smith, a case from Arkansas involving parental names on birth certificates, in which the Court made clear that married same-sex couples are entitled to the “full constellation of rights” that go with marriage under the Obergefell decision.

At present Pidgeon and Hicks’ lawsuit is still pending in the state trial court and the same-sex spouses of Houston employees are receiving their equal benefits, so it is likely that the Supreme Court justices saw no pressing reason to add this case to their docket. Perhaps they agree with the opinion by U.S. District Judge Vanessa D. Gilmore, who, in dismissing Lambda’s lawsuit, in predicted that the state trial court, being bound to follow U.S. Supreme Court precedent in Obergefell and Pavan, will ultimately reject the challenge to the benefits.

Virginia Federal District Court to Determine Whether Gavin Grimm Case is Moot

Posted on: August 15th, 2017 by Art Leonard No Comments

On August 2, the Richmond-based 4th Circuit Court of Appeals announced that instead of holding oral argument in Gavin Grimm’s lawsuit challenging the Gloucester County School Board’s bathroom access policy, it was sending the case back to the district court for a determination whether Grimm’s recent graduation from high school made the case moot.  Grimm v. Gloucester County School Board, 2017 U.S. App. LEXIS 14158.  The three-judge panel had tentatively scheduled an oral argument for September to consider yet again whether U.S. District Judge Robert G. Doumar erred when he dismissed Grimm’s Title IX sex discrimination claim against the Gloucester County School Board. The circuit panel speculated that its jurisdiction to decide the case may have been ended by Grimm’s graduation, but that it was not clear from the record before the court and the supplemental briefs filed by the parties earlier this summer whether this is so, and the court concluded that more fact-finding is necessary before the issue of its jurisdiction can be decided.

Grimm’s mother filed suit on his behalf against the school board in July 2015, during the summer before his junior year, alleging that the Board’s policy of requiring students to use restrooms based on their biological sex rather than their gender identity violated Grimm’s right to be free of sex discrimination protected under Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14th Amendment.  The Board moved to dismiss the case, arguing that Title IX did not apply to this dispute and that its action did not violate the Constitution.  Judge Doumar ruled on September 17, 2015, in favor of the Board’s motion to dismiss the Title IX claim, reserved judgment on the 14th Amendment claim, and denied Grimm’s motion for a preliminary injunction to allow him to use the boys’ bathrooms as he appealed the dismissal.  While the case was pending before Judge Doumar, the U.S. Departments of Education and Justice filed a joint statement with the court supporting Grimm’s claim that barring him from using the boys’ bathrooms violated the ban on sex discrimination.

Ruling on Grimm’s appeal of the dismissal on April 19, 2016, the 4th Circuit focused on the document issued by the federal agencies, finding that the district court should have deferred to their interpretation of the Title IX regulations, finding it to be a reasonable interpretation of the regulations.  The court reversed Judge Doumar’s dismissal of the Title IX claim, and sent the case back to Doumar to reconsider Grimm’s request for a preliminary injunction.  Reacting to the Circuit’s decision, Doumar issued a preliminary injunction on June 23, 2016, too late to get Grimm access to the boys’ bathrooms during his junior year but potentially ensuring that he could use appropriate bathrooms at the high school during his senior year.  But that was not to be.  Even though Judge Doumar and the 4th Circuit refused to stay the preliminary injunction while the case was on appeal, the School Board successfully petitioned the Supreme Court for a stay while it prepared to file a petition to have the Supreme Court review the 4th Circuit’s ruling.  Thus, as the 2016-17 school year began, Grimm was still barred from using the boys’ bathrooms at his high school.

The Supreme Court subsequently granted the Board’s petition to review the 4th Circuit’s decision, continuing the stay of the preliminary injunction, and scheduled an oral argument to take place on March 28, 2017.  Meanwhile, Donald Trump was elected president, took office in January, 2017, and appointed Jeff Sessions to be Attorney General and Betsy DeVos to be Secretary of Education.  Sessions and DeVos disagreed with the Obama Administration’s interpretation of Title IX, and on February 22 announced that the Departments of Education and Justice were “withdrawing” the document that had been submitted to the district court and, in effect, taking no position at that time on the appropriate interpretation of Title IX, instead stating that the question of bathroom access in public schools should be decided by the states and localities, not the federal government.  The Supreme Court reacted to this development by cancelling the oral argument, vacating the 4th Circuit’s decision, and sending the case back to the 4th Circuit to address the merits of Grimm’s appeal as a matter of judicial interpretation of the relevant statutory and regulatory provisions, there no longer being an executive branch interpretation to which the court need defer.  The 4th Circuit tentatively scheduled an argument to be held in September, but then, after Grimm graduated in June, the parties filed supplemental briefs to update the court on what had happened since it last considered the case.

The School Board argued that the case had become moot because Grimm had graduated. “The School Board argues that, absent any allegation of a ‘particular intention to return to school after graduation,’ this change of status deprives Grimm of a continued interest in the litigation, rendering the case moot,” wrote the court in its brief order issued on August 2.  “The School Board states further that its bathroom policy does not necessarily apply to alumni, and that the issue of whether the policy is applicable to alumni is not yet ripe for adjudication.”  Grimm responded that it was enough that his possible “future attendance at alumni and school-community events” at the high school gave him a continuing concrete interest in obtaining the injunctive relief he was seeking in this lawsuit.  He also pointed out that the School Board’s “noncommittal statement” that the policy did “not necessarily apply” to alumni “falls short of a representation that the Board will voluntarily cease discriminating against” him.

The court does not have jurisdiction of the case unless there is an “actual case or controversy” between the parties. The Supreme Court has established that this means that the plaintiff, Grimm, must have a concrete interest in the outcome, which would mean that the policy he is challenging must actually affect him personally.  “Thus,” wrote the court, “a crucial threshold question arises in this appeal whether ‘one or both of the parties plainly lack a continuing interest’ in the resolution of this case such that it has become moot.”  The court decided that “the facts on which our jurisdiction could be decided are not in the record before us.”  The factual record in this case consists of the sworn allegations that were presented to the district court back in 2015 when it was ruling on the Board’s motion to dismiss the case, when Grimm was but a rising junior at the high school.  The parties’ assertions in their briefs are just that: merely argumentative assertions, not sworn statements of fact or actual testimony submitted in court.  Thus, the 4th Circuit panel decided it was necessary to send the case back to the district court for “factual development of the record by the district court and possibly additional jurisdictional discovery.”  They are not sending the case back for a new ruling on the merits, just for a ruling on the question of mootness after additional fact-finding.  Any determination by Judge Doumar that the case is moot could, of course, be appealed by Grimm, so final resolution of this case may still take some time, and it is possible that the courts will resolve the mootness issue against the Board.

If the mootness issue is decided in Grimm’s favor and the case returns to the 4th Circuit for a ruling on whether the Title IX claim was appropriately dismissed, it may yet provide a vehicle for the ACLU LGBT Right Project and the ACLU Foundation of Virginia, which represent Grimm, to get this issue back before the Supreme Court, although if they are ultimately successful in the 4th Circuit, that would depend on the School Board persisting in seeking Supreme Court review.  However, this issue is being litigated in other places, in some cases involving elementary school students, and it is possible that one of the other cases will get far enough along to knock at the Supreme Court’s door long before the plaintiff has graduated.  Indeed, while this litigation drama was unfolding in Gloucester County, the Chicago-based 7th Circuit Court of Appeals ruled on May 30 in Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034, that Title IX prohibits a public school from refusing to let transgender students use bathrooms appropriate for their gender identity, so the issue has percolated further elsewhere in the country.  It seems only a matter of time before it gets to the Supreme Court, regardless of what the Trump Administration may say about the issue, unless Congress intervenes by amending Title IX, an outcome that is unlikely unless the Senate Republicans abolish the filibuster rule for ordinary legislation, as Trump has been asking them to do, so far without success.

Supreme Court May Consider Whether Federal Law Already Outlaws Sexual Orientation Discrimination

Posted on: July 12th, 2017 by Art Leonard No Comments

Lambda Legal has announced that it will petition the Supreme Court to decide whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination because of sex, also bans discrimination because of sexual orientation. Lambda made the announcement on July 6, when the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, announced that the full circuit court would not reconsider a decision by a three-judge panel that had ruled on March 10 against such a claim in a lawsuit by Jameka K. Evans, a lesbian security guard who was suing Georgia Regional Hospital for sexual orientation discrimination.

The question whether Title VII can be interpreted to cover sexual orientation claims got a big boost several months ago when the full Chicago-based 7th Circuit ruled that a lesbian academic, Kimberly Hively, could sue an Indiana community college for sexual orientation discrimination under the federal sex discrimination law, overruling prior panel decisions from that circuit.  The 7th Circuit was the first federal appeals court to rule in favor of such coverage.  Lambda Legal represented Hively in her appeal to the 7th Circuit.

Title VII, adopted in 1964 as part of the federal Civil Rights Act, did not even include sex as a prohibited ground of discrimination in the bill that came to the floor of the House of Representatives for debate. The primary focus of the debate was race discrimination. But a Virginia representative, Howard Smith, an opponent of the bill, introduced a floor amendment to add sex.  The amendment was approved by an odd coalition of liberals and conservatives, the former out of a desire to advance employment rights for women, many of the later hoping that adding sex to the bill would make it too controversial to pass. However, the amended bill was passed by the House and sent to the Senate, where a lengthy filibuster delayed a floor vote for months before it passed without much discussion about the meaning of the inclusion of sex as a prohibited ground for employment discrimination.  (The sex amendment did not apply to other parts of the bill, and the employment discrimination title is the only part of the 1964 Act that outlaws sex discrimination.)

Within a few years both the Equal Employment Opportunity Commission and federal courts had issued decisions rejecting discrimination claims from LGBT plaintiffs, holding that Congress did not intend to address homosexuality or transsexualism (as it was then called) in this law. The judicial consensus against coverage did not start to break down until after the Supreme Court’s 1989 decision on Ann Hopkin’s sex discrimination lawsuit against Price Waterhouse.  The accounting firm had denied her partnership application.  The Court accepted her argument that sex stereotyping had infected the process, based on sexist comments by partners of the firm concerning her failure to conform to their image of a proper “lady partner.”

Within a few years, litigators began to persuade federal judges that discrimination claims by transgender plaintiffs also involved sex stereotyping. By definition a transgender person does not conform to stereotypes about their sex as identified at birth, and by now a near consensus has emerged among the federal courts of appeals that discrimination because of gender identity or expression is a form of sex discrimination under the stereotype theory.  The Equal Employment Opportunity Commission changed its position as well, following the lead of some of the court decisions, in 2012.

Advocates for gay plaintiffs also raised the stereotype theory, but with mixed success. Most federal circuit courts were unwilling to accept it unless the plaintiff could show that he or she was gender-nonconforming in some obvious way, such as effeminacy in men or masculinity (akin to the drill sergeant demeanor of Ann Hopkins) in women.  The courts generally rejected the argument that to have a homosexual or bisexual orientation was itself a violation of employer’s stereotypes about how men and women were supposed to act, and some circuit courts, including the New York-based 2nd Circuit, had ruled that if sexual orientation was the “real reason” for discrimination, a Title VII claim must fail, even if the plaintiff was gender nonconforming.  Within the past few years, however, several district court and the EEOC have accepted the stereotype argument and other arguments insisting that discrimination because of sexual orientation is always, as a practical matter, about the sex of the plaintiff.  This year, for the first time, a federal appeals court, the Chicago-based 7th Circuit, did so in the Hively case.  A split among the circuits about the interpretation of a federal statute is listed by the Supreme Court in its practice rules as the kind of case it is likely to accept for review.

The Supreme Court has been asked in the past to consider whether Title VII could be interpreted to cover sexual orientation and gender identity claims, but it has always rejected the invitation, leaving in place the lower court rulings.

However, last year the Court signaled its interest in the question whether sex discrimination, as such, includes gender identity discrimination, when it agreed to review a ruling by the Richmond-based 4th Circuit Court of Appeals, which held that the district court should not have dismissed a sex-discrimination claim by Gavin Grimm, a transgender high school student, under Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal money.  The 4th Circuit held in Grimm’s case that the district court should have deferred to an interpretation of the Title IX regulations by the Obama Administration’s Department of Education, which had decided to follow the lead of the EEOC and federal courts in Title VII cases and accept the sex stereotyping theory for gender identity discrimination claims. Shortly before the Supreme Court was scheduled to hear arguments in this case, however, the Trump Administration “withdrew” the Obama Administration interpretation, pulling the rug out from under the 4th Circuit’s decision.  The Supreme Court then canceled the argument and sent the case back to the 4th Circuit, where an argument has been scheduled for this fall on the question whether Title IX applies in the absence of such an executive branch interpretation.

Meanwhile, the Title VII issue has been percolating in many courts around the country. Here in New York, the 2nd Circuit Court of Appeals has had several recent panel decisions in which the judges have refused to allow sexual orientation discrimination claims because they are bound by earlier decisions of the court to reject them, although in some cases they have said that the gay plaintiff could maintain their Title VII case if they could show gender nonconforming behavior sufficient to evoke the stereotype theory. In one of these cases, the chief judge of the circuit wrote a concurring opinion, suggesting that it was time for the Circuit to reconsider the issue by the full court.  In another of these cases, Zarda v. Altitude Express, the court recently granted a petition for reconsideration by the full bench, appellants’ briefs and amicus briefs were filed late in June, and oral argument has been scheduled for September 26.  The EEOC as well as many LGBT rights and civil liberties organizations and the attorneys general of the three states in the circuit have filed amicus briefs, calling on the 2nd Circuit to follow the 7th Circuit’s lead on this issue.

This sets up an interesting dynamic between the 11th Circuit case, Evans, and the 2nd Circuit case, Zarda.  Lambda’s petition for certiorari (the technical term for seeking Supreme Court review) is due to be filed by 90 days after the denial of its rehearing petition by the 11th Circuit, which would put it early in October, shortly after the 2nd Circuit’s scheduled argument in Zarda.  After Lambda files its petition, the Respondent, Georgia Regional Hospital (perhaps, as a public hospital, represented by the state attorney general’s office), will have up to 30 days to file a response, but this is uncertain, since the hospital failed to send an attorney to argue against Evans’ appeal before the 11th Circuit panel.  Other interested parties who want the Supreme Court to take or reject this case may filed amicus briefs as well.  If Lambda uses all or virtually all of its 90 days to prepare and file its petition, the Supreme Court would most likely not announce whether it will take the case until late October or November.  If it takes the case, oral argument would most likely be held early in 2018, with an opinion expected by the end of the Court’s term in June.

That leaves the question whether the 2nd Circuit will move expeditiously to decide the Zarda case?  Legal observers generally believe that the 2nd Circuit is poised to change its position and follow the 7th Circuit in holding that sexual orientation claims can be litigated under Title VII, but the circuit judges might deem it prudent to hold up until the Supreme Court rules on the Evans petition and, if that petition is granted, the 2nd Circuit might decide to put off a ruling until after the Supreme Court rules.  In that case, there will be no change in the 2nd Circuit’s position until sometime in the spring of 2018, which would be bad news for litigants in the 2nd Circuit.  Indeed, some district judges in the Circuit are clearly champing at the bit to be able to decide sexual orientation discrimination claims under Title VII, and two veteran judges have bucked the circuit precedent recently, refusing to dismiss sexual orientation cases, arguing that the 2nd Circuit’s precedents are outmoded.  A few years ago the 2nd Circuit accepted the argument in a race discrimination case that an employer violated Title VII by discriminating against a person for engaging in a mixed-race relationship, and some judges see this as supporting the analogous argument that discriminating against somebody because they are attracted to a person of the same-sex is sex discrimination.

The 2nd Circuit has in the past moved to rule quickly on an LGBT issue in a somewhat similar situation.  In 2012, cases were moving up through the federal courts challenging the Defense of Marriage Act (DOMA), which had been held unconstitutional by several district courts.  A race to the Supreme Court was emerging between cases from Boston (1st Circuit), New York (2nd Circuit), and San Francisco (9th Circuit).  The Supreme Court received a petition to review the 1st Circuit case, where GLAD represented the plaintiffs.  The ACLU, whose case on behalf of Edith Windsor was pending before the 2nd Circuit, filed a petition with the Supreme Court seeking to leapfrog the district court and bring the issue directly up to the highest court.  After the ACLU filed its petition, the 2nd Circuit moved quickly to issue a decision, and the Supreme Court granted the petition.  Meanwhile, Lambda Legal, representing the plaintiff whose case was pending in the 9th Circuit, had filed its own petition asking the Supreme Court to grant review before the 9th Circuit decided that appeal.  It was all a bit messy, but ultimately the Court granted the ACLU’s petition and held the other petitions pending its ultimate decision, announced on June 26, 2013, declaring DOMA unconstitutional.  If the 2nd Circuit moves quickly, it might be able to turn out an opinion before the Supreme Court has announced whether it will review the Evans case, as it did in 2012 in the DOMA case (although that was just a panel decision, not a ruling by the full circuit bench.)  The timing might be just right for that.

Another concern, of course, is the composition of the Supreme Court bench when this issue is to be decided. At present, the five justices who made up the majority in the DOMA and marriage equality cases are still on the Court, but three of them, Justices Anthony Kennedy (who wrote those opinions), Ruth Bader Ginsburg, and Stephen Breyer, are the three oldest justices, and there have been rumors about Kennedy considering retirement.  Donald Trump’s first appointee to the Court, Neil Gorsuch, filling the seat previously occupied by arch-homophobe Antonin Scalia, immediately showed his own anti-LGBT colors with a disingenuous dissenting opinion issued on June 26 in a case from Arkansas involving birth certificates for the children of lesbian couples, and it seems likely that when or if Trump gets another appointment, he will appoint a person of similar views.  Kennedy, who turns 81 this month, has not made a retirement announcement and has hired a full roster of court clerks for the October 2017 Term, so it seems likely he intends to serve at least one more year.  There is no indication that Ginsburg, 84, or Breyer, 79 in August, plan to retire, but given the ages of all three justices, nothing is certain.

Supreme Court Will Consider Religious and Free Speech Exemptions to Anti-Discrimination Law in Colorado Wedding Cake Case

Posted on: June 26th, 2017 by Art Leonard No Comments

On June 26 the United States Supreme Court granted a petition filed by Alliance Defending Freedom (ADF), the anti-gay “religious” law firm, on behalf of Jack Phillips and his business, Masterpiece Cakeshop, to determine whether the Colorado Court of Appeals correctly denied Phillips’ claim that he is privileged under the 1st Amendment to refuse an order to bake a wedding cake for a same-sex couple.  Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission, No. 16-111 (cert. granted June 26, 2017).

The petition was filed last July 22, and had been listed for discussion during the Court’s conferences more than a dozen times. The addition of Donald Trump’s nominee, Neil Gorsuch, to fill a vacancy on the Court was likely the catalyst for a decision to grant review, although it the ultimate disposition of the case could heavily depend on the views of Justice Anthony Kennedy, the “swing justice” on the Court in cases involving LGBT issues.  However, in an interesting twist, one of the main precedents that stands in the way of a victory for Phillips and Masterpiece Cakeshop is an opinion written in 1990 by Justice Antonin Scalia, whose death led to Gorsuch’s appointment.

The petition asks the Court, in effect, to reverse or narrow its long-standing precedent, Employment Division v. Smith, in which Justice Antonin Scalia wrote that individuals do not have a constitutional right based on their religious beliefs to refuse to comply with “neutral” state laws of general application. Neutral state laws are those that do not directly concern religious beliefs or practices, but whose application may incidentally affect them.  In response to this decision, both Congress and many state governments have passed statutes allowing persons to claim religious exemptions from complying with statutes under certain circumstances.

The question which the Court will consider, as phrased by ADF in its petition, is: “Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment?”

The Court has addressed the free speech aspects of this issue in the past.  In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995), the Court ruled that a state’s public accommodation law would have to give way to the 1st Amendment expressive association rights of the organizers of Boston’s St. Patrick’s Day Parade, who refused to allow an LGBT group to march under its own banner in the parade.  The Court ruled unanimously, in an opinion by Justice David Souter, that a parade is a quintessential expressive activity, and the organizers of the parade have a right to exclude groups whose presence would convey a message that the parade organizers do not wish to convey.

By a bare 5-4 majority, the Court extended that ruling in Boy Scouts of America v. Dale (2000), in which Chief Justice William Rehnquist wrote for the Court, holding that the Boy Scouts of America, like the Boston parade organizers, is an expressive association and could refuse to allow an openly gay man to serve as an assistant scoutmaster because this would communicate to its members and the public a view as to homosexuality that the BSA did not want to communicate.  The ruling sparked two dissenting opinions, sharply contesting the majority’s weighing of rights in allowing the Boy Scouts to discriminate and challenging the view that BSA could be characterized as an “expressive association.”

Interestingly, the winning parties in both of these cases have over time come to see the wisdom of allowing at least some LGBT people to participate in their activities.  The Boston parade organizers have allowed some LGBT groups to participate in their parade in recent years, and BSA voted to allow its local troops to permit participation by LGBT people as members and adult leaders, although troops sponsored by religious organizations have continued to exclude LGBT people in some places.

The Court has yet to return to the religious objection aspect of this case.  A few years ago it refused to review a decision by the New Mexico Supreme Court holding that a wedding photographer did not have a 1st Amendment right to refuse to provide her services to a lesbian couple seeking photographic documentation of their commitment ceremony.  Since then, courts in several other states have rejected religious exemption claims by various businesses that provide wedding-related services, including a recent New York ruling refusing a religious exemption to a farm that had hosted and catered weddings.  The more recent Hobby Lobby case, in which the Supreme Court held that a closely-held corporation could refuse on religious grounds to cover certain contraceptive methods under its health care plan, was litigated in terms of a statutory exemption provided by the federal Religious Freedom Restoration Act, and thus was not grounded on a constitutional claim.

A recent appellate ruling by a Kentucky court, however, upheld the right of a company that makes custom t-shirts to refuse an order from a gay organization for shirts to publicize the organization’s Gay Pride festival.  The 2-1 ruling was premised on the court’s conclusion that the denial of services was not based on the sexual orientation of anybody, but the concurring judge also cited the state’s Religious Freedom Restoration Act, while the dissenter found a clear violation of the a municipal anti-discrimination law and no right to a religious exemption.

In the case granted review by the Supreme Court, Charlie Craig and David Mullins were planning to go out-of-state to marry, because in 2012 Colorado did not yet allow same-sex marriages.  However, they planned to follow up with a celebration near their home in order to more easily involve their family and friends, and went to Masterpiece Cakeshop to order a cake for the occasion.  The owner, Jack Phillips, declined their order, citing his religious objection to same-sex marriage.  When Craig and Mullins publicized this refusal, they were offered a free wedding cake by another bakery which they accepted, but they also decided to file a charge of sexual orientation discrimination with the Colorado Civil Rights Division.  The Division ruled in their favor, approving an administrative law judge’s decision that rejected Phillips’s 1st Amendment defenses of free exercise of religion and freedom of speech and found that Phillips had violated the state’s statutory ban on sexual orientation discrimination by businesses.

ADF appealed the administrative ruling to the Colorado Court of Appeals, which rejected both of Phillips’ constitutional arguments.  The court held that baking and decorating a wedding cake is not speech or artistic expression, as Phillips had argued, and that the Commission’s order “merely requires that [Phillips] not discriminate against potential customers in violation of [the Colorado Anti-Discrimination Act] and that such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.”  The court deemed the Act to be a “neutral law of generally applicability,” and thus within the scope of the Supreme Court’s Employment Division v. Smith precedent.  Colorado does not have a Religious Freedom Restoration Act that could arguably create a statutory exemption to the anti-discrimination statute.

Because the Supreme Court granted review on both the free speech and religious exercise claims, there might result a split decision by the Court.  If it wants to adhere to a broad view of Employment Division v. Smith, it can easily follow the route taken by various state courts that have refused to allow businesses to claim a constitutional religious exemption from complying with anti-discrimination laws.  Or, it could use this case to back away from the Employment Division holding or narrow it in some way.

The Court is unlikely to rule for Phillips on the free speech argument if it sticks with its precedents, since the recognized constitutional exception is for organizations or activities that have a primary or significant expressive purpose. Both Hurley and Dale involved non-profit organizations, not businesses, that were engaged in activities that the Court found (by only a narrow margin in the case of the Boy Scouts) to have strong expressive association claims.  It is unlikely that a business whose primary activity is selling cakes could make a similar claim.  But the Supreme Court can be full of surprises, and there have been significant changes in its membership since these cases were decided.  The Court might bow to the argument by ADF that people of strong religious convictions who wish to incorporate those convictions into their businesses have a right not to be compelled by the government to undertake activities that would express a view contrary to their religious beliefs.  This would potentially tear a big hole in the protection against discrimination provided by the public accommodations laws most of the states, and not just those that ban discrimination because of sexual orientation or gender identity.

The Colorado Court of Appeals’ decision will be defended before the Supreme Court by the state’s attorneys. Lambda Legal and One Colorado, with cooperating attorneys John McHugh and Anthony Giacomini of Denver-based Reilly Pozner LLP, filed an amicus brief in response to the petition.  Given the wide-ranging interest in the issues underlying this case, it is likely that the Court will receive a mountain of amicus briefs.  Oral argument will be held sometime next winter.