LAW NOTES
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November 2014
CERTIORARI
DENIED
Justices Decide Not to Hear Any Pending
Challenges to State Marriage Bans
© 2014 Lesbian/Gay Law Notes & the Lesbian/Gay Law Notes Podcast are Publications of the LeGaL Foundation.
LAW NOTES
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EXECUTIVE SUMMARY
450 Supreme Court Denies Review on
October 6 in Marriage Equality
Cases, Setting Off a Cascade of New
Developments in the Affected Circuits
453 9th Circuit Strikes Nevada and Idaho
Same-Sex Marriage Bans
455 Alaska Joins the Marriage Equality
Column
457 Federal Court Grants Summary
Judgment for Marriage Equality in Two
Arizona Cases
458 Wyoming Marriage Equality Began on
October 21
459 Federal Court in Puerto Rico Dismisses
Marriage Equality Case
461 Missouri Court Strikes Down Statutes
Prohibiting the Recognition of Same-Sex
Marriages
462 Trial Court’s Presumption that a SelfIdentified Heterosexual Man Would Not
Sexually Abuse another Man is Faulted
463 11th Circuit Vacates Child Porn
Conviction, Finding Jury Might Have
Been Biased
464 Federal Judge Dismisses Transgender
Inmate’s Suit for Medical Care for
PLRA for Non-Exhaustion, Adopting
Gratuitously Transphobic Magistrate
Decision
465 Student Makes First Amendment
Challenge Based on Professor’s Criticism
of Her Paper on Lesbianism
466 Notes
479 Citations
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Editor-In-Chief
Prof. Arthur S. Leonard
New York Law School
185 West Broadway
New York, NY 10013
(212) 431-2156
[email protected]
[email protected]
Contributors
David Buchanan, SC
Bryan Johnson, Esq.
William J. Rold, Esq.
Daniel Ryu, Harvard ‘16
Tara Scavo, Esq.
Anthony Sears, NYLS ‘16
Matthew Skinner, Esq.
Brad Snyder, Esq.
Matteo M. Winkler, Esq.
Prof. Robert Wintemute
Production Manager
Leah Harper
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Supreme Court Denies Review on October 6 in
Marriage Equality Cases, Setting Off a Cascade of
New Developments in the Affected Circuits
B
efore the Supreme Court’s doors
opened for its new term on
October 6, nineteen (19) states and
the District of Columbia allowed samesex couples to marry and recognized
out-of-state same-sex marriages. Then
the new term began, and the Court
announced it was denying petitions for
certiorari in Bogan v. Boskin (Indiana),
Walker v. Wolf (Wisconsin), Herbert
v. Kitchen (Utah), McQuigg v. Bostic
(Virginia), Rainey v Bostic (Virginia),
Schaefer v. Bostic (Virginia), and
Smith v. Bishop (Oklahoma). As a
result, stays were lifted in pro-marriage
equality decisions by panels of the 4th
(Virginia), 7th (Wisconsin and Indiana)
(10th Cir., June 25, 2014), cert. denied,
2014 WL 3841263 (Oct. 6, 2014), stay
lifted, 2014 WL 4960471 (10th Cir., Oct.
6, 2041), Bishop v. Smith, 760 F.3d 1070
(10th Cir., July 18, 2014), cert. denied,
2014 WL 3854318 (Oct. 6, 2014), stay
lifted sub nom Bishop v. Barton, 2014
WL 4960523, 2014 U.S. App. LEXIS
19305 (10th Cir., Oct. 6, 2041); Bostic
v. Schaefer, 760 F.3d 352, (4th Cir., July
28, 2014), cert. denied, sub nom Rainey
v. Bostic, 2014 WL 3924685 (Oct. 6,
2014), sub nom Schaefer v. Bostic,
2014 WL 4230092 (Oct. 6, 2014), and
sub nom McQuigg v. Bostic, 2014 WL
4354536 (Oct. 6, 2014).
The Court’s decision to abstain
appeal filed by Attorney General John
Suthers from a pro-marriage-equality
district court opinion and Suthers
was also pursuing a lawsuit against a
“rogue” clerk who had issued same-sex
marriage licenses in response to the 10th
Circuit’s rulings in Kitchen and Bishop.
Recognizing that the 10th Circuit’s
decisions in Kitchen and Bishop were
now final and no longer stayed, Suthers
abandoned his appeal to the 10th Circuit
and asked the Colorado Supreme Court
to lift its stay of a pro-marriage-equality
state trial court decision. State v. Hall,
Supreme Court Case No. 2014SC582
(Oct. 7, 2014) (stay lifted). As a result,
same-sex couples began marrying
The Court announced it was denying petitions for certiorari in Bogan v. Boskin
(Indiana), Walker v. Wolf (Wisconsin), Herbert v. Kitchen (Utah), McQuigg v. Bostic
(Virginia), Rainey v Bostic (Virginia), Schaefer v. Bostic (Virginia), and Smith v.
Bishop (Oklahoma).
and 10th (Utah and Oklahoma) Circuit
Courts of Appeals, and over the next
day same-sex couples began to marry
in those states, bringing the number of
marriage equality states up to twentyfour (24). The day after the Supreme
Court’s
announcement,
Virginia
Governor Terence R. McAuliffe issued
Executive Order EO-30, directing all
state agencies to comply with the ruling
immediately. Later in the month, the
Utah Supreme Court dissolved its order
that had blocked adoptions by same-sex
partners while the marriage equality
case in that state was still on appeal.
The court of appeals decisions
denied review included Baskin v.
Bogan, 2014 WL 4359059 (7th Cir.
Sept. 4, 2014), cert. denied, 2014 WL
4425162 & 2014 WL 4425163 (Oct. 6,
2014); Kitchen v. Herbert, 755 F.3d 1193
from ruling on any of the marriage
equality case petitions would have
direct consequences for the other states
in those circuits in which marriage
equality litigation was pending. In the
7th Circuit, the decision produced a
clean sweep, since the only other state in
the circuit, Illinois, enacted a marriage
equality law that went into effect in June
2014. However, the marriage equality
dominoes began to fall quickly in some
of the other states in the 4th and 10th
Circuits. In the 10th Circuit, New
Mexico already had marriage equality
as a result of a New Mexico Supreme
Court ruling in 2013, but litigation was
pending in Wyoming, Colorado and
Kansas.
The first domino to drop in the 10th
Circuit was in Colorado, where the
10th Circuit had recently suspended an
in Colorado beginning on October 7,
bringing the total of marriage equality
states to twenty-five (25).
Things did not move quite as quickly
in the remaining 10th Circuit states.
Governors and attorneys general in
Wyoming and Kansas vowed to fight to
the bitter end.
In Wyoming, a state court lawsuit
brought by the National Center for
Lesbian Rights and local counsel in the
Wyoming District Court in Laramie,
Courage v. State of Wyoming, had been
filed in March 2014, but in light of the
finality of the 10th Circuit rulings,
it seemed prudent to quickly launch
a federal suit, and one was filed by
NCLR and local counsel on October
7, Guzzo v. Mead, No. 14-CV-200-S,
seeking immediate declaratory and
injunctive relief on the ground that
November 2014 Lesbian / Gay Law Notes 450
the state’s constitutional and statutory
same-sex marriage bans were clearly
unconstitutional under binding 10th
Circuit precedent. The strategy worked
and same-sex marriage became
available in Wyoming on October 21.
(See story below for full details on the
Wyoming case).
Chief Judge Kevin P. Moriarty in
the Kansas Tenth Judicial District state
court issued Administrative Order
14-11 directing that District Court
Clerk Sandra McCurdy issue marriage
licenses to same-sex couples on October
7. Attorney General Derek Schmidt
quickly petitioned the Kansas Supreme
Court to put a halt to any same-sex
marriage activity. In a short opinion
issued on October 10 in State ex rel.
Schmidt v. Moriarty, No. 112,590, the
Supreme Court ruled that “the Attorney
General’s right to relief on the merits
is not clear, nor is it apparent per Rule
‘that no valid defense to the petition
can be offered,’ given the interpretation
and application of the United States
Constitution by panels of the United
States Tenth Circuit Court of Appeals.”
Thus, the court was willing only to issue
a temporary stay of Moriarty’s order,
“insofar as this Order allows issuance
of marriage licenses.” However, said
the court, “Applications for marriage
licenses may continue to be accepted
during the period of the stay,” and
meanwhile the court set a hearing for
November 6, at which interested parties
would address the questions whether
Moriarty had “authority” to issue his
order, “Whether Chief Judge Moriarty
was correct in asserting that the
interpretations and applications of the
United States Constitution by panels of
the Tenth Circuit Court of Appeals are
supreme and therefore modify Kansas
state constitutional, statutory or common
law ban on same-sex marriage;” and
“Even if the Tenth Circuit rulings on
federal constitutional law are supreme,
whether Kansas’ state constitutional,
statutory, or common law bans on samesex marriage are permissible under the
United States Constitution.” The court
also ordered that the briefing deadlines
it set in its order would not extended, and
“The court will not entertain any motion
for a continuance of this setting.” There
was a pending marriage recognition case
on file in the Shawnee County District
Court, Nelson v. Kansas Department
of Revenue, No. 13 C 1465, seeking an
order that Kansas must recognize out-ofstate same-sex marriages for tax filing
purposes, but nothing was on file in the
federal district court at the beginning
of the month. The ACLU of Kansas
quickly rose to the occasion, filing suit
in the U.S. District Court in Kansas City,
Marie v. Moser, and moving quickly
for a preliminary injunction. Judge
Daniel Crabtree responded promptly
to the motion, scheduling a hearing for
October 31, with the likelihood that
a ruling would come soon thereafter.
Since Judge Crabtree is bound by
10th Circuit precedent, there was little
suspense about what his ruling would
be, but on the 31st, he reserved judgment
after hearing the parties’ arguments.
In the 4th Circuit, resistance to
marriage equality crumbled first in West
Virginia, where U.S. District Judge
Robert C. Chambers lifted his stay on
proceedings in the pending marriage
equality case brought by Lambda Legal,
McGee v. Cole, Civil Action No. 3:1324068 (S.D. W.Va.), on October 7, and
signaled that action on a summary
judgment motion would be forthcoming
by directing the defendants to respond
to the pending motion by October 21.
Attorney General Patrick Morrissey
responded by announcing on October
9 that the state would concede that its
marriage ban was indefensible under
now-binding 4th Circuit precedent, and
Governor Earl Ray Tomblin announced
he would take no action to overturn
any court order. The state’s resistance
crumbled and by October 10 marriage
licenses were available for same-sex
couples, bringing the count of marriage
equality states to twenty-six (26) – well,
actually more like 28 due to events in
the 9th Circuit which will be mentioned
briefly at the end of this article and in
more detail in the separate article on 9th
Circuit developments stemming from
an October 7 ruling by the 9th Circuit
Court of Appeals striking down bans in
Nevada and Idaho, below.
In South Carolina, Charleston County
Probate Judge Irvin G. Condon pushed
things forward quickly by accepting
451 Lesbian / Gay Law Notes November 2014
a marriage license application from
a lesbian couple, prompting Attorney
General Alan Wilson to petition the
South Carolina Supreme Court to stop
Condon from issuing licenses. That
court issued such an order on the 9th,
ordering Condon not to issue licenses
until the pending federal lawsuit in
South Carolina, Bradacs v. Haley, could
be decided. Bradacs is a marriage
recognition case pending in the Columbia
Division of the district court. The judge
in Bradacs, J. Michelle Childs, had
stayed proceedings until a final order of
the 4th Circuit was issued in Bostic v.
Schaefer. She lifted the stay on October
8 and directed the parties to submit an
amended scheduling order by October
15. Judge Childs indicated on October
14 that she would decide in November
whether to hear oral arguments, with
briefs on the pending motions to be filed
by October 23 and reply briefs by three
weeks later. Lambda Legal decided to
push things forward with a new lawsuit
filed on October 15, Condon v. Haley,
Civil Action No. 2:14-cv-04010-RMG,
in the Charleston Division of the federal
district court, representing a lesbian
couple whose quest for a marriage
license from Probate Judge Condon
had been blocked by Wilson’s action.
Citing Bostic v. Schaefer as binding in
South Carolina, Lambda argued that
the state defendants were prohibited
“from imposing any further barriers to
same-sex couples’ exercise of this right
in South Carolina.” The complaint
charged that Attorney General Wilson’s
action securing an order from the South
Carolina Supreme Court stopping
clerks from issuing marriage licenses
“is violating Plaintiffs’ constitutional
rights and refusing to follow the law
in this jurisdiction.” Lambda argued
that the court should “act swiftly to
restrain the unconstitutional acts of
Defendants and to command Defendant
Probate Judge Irvin G. Condon to issue
the requested marriage license.” On
October 22, plaintiffs file a motion for
preliminary injunction, arguing that
the defendant state officials’ politically
motivated attempts to stop Judge
Condon from issuing marriage licenses
was in disregard of their “duty to
uphold the United States Constitution.”
On October 24, attorney Andrew
S. Radeker filed a new suit in the
Columbia Division, which was assigned
to Judge Childs, representing Julie A.
A. McEldowney, who had applied to
the local Department of Motor Vehicles
Office seeking to get her driver’s license
reissued in her married name after
she married her same-sex partner in
the District of Columbia. The DMV
repeatedly refused.
The complaint
in McEldowney v. South Carolina
Department of Motor Vehicles, No.
3:14-4155-JMC (D.S.C., filed 10/24/14),
alleges violations of the Full Faith and
Credit Clause, Due Process Clause and
Equal Protection Clause, and seeks an
order that the DMV issue the plaintiff
an appropriate license. The suit also
seeks a declaration that South Carolina’s
refusal to recognize Ms. McEldowney’s
marriage violates her constitutional
rights.
Things moved forward more quickly
in North Carolina, where there were
several federal cases pending.The
earlier-filed cases, Fisher-Borne v.
Smith and Gerber v. Cooper, ACLU
lawsuits, were consolidated in the state’s
Middle District before Judge William
L. Osteen, Jr., who signed an order on
October 9 rejecting a motion by the
state’s legislative leaders to intervene
to defend the statute, whose defense
on the merits had been abandoned by
Attorney General Roy Cooper. Judge
Osteen had lifted a stay on proceedings
in the case in response to the Supreme
Court’s action, and was preparing to
proceed the following week, but his
efforts at first seemed preempted by
action in the other case, pending in
the state’s Western District. This suit,
General Synod of the United Church of
Christ v. Resinger, 2014 WL 5092288
(W.D. N.C., Oct. 10, 2014), had been
brought by religious groups as well as
same-sex couples seeking to marry, and
was pending before District Judge Max
O. Cogburn, Jr. Judge Cogburn decided
not to wait for anybody to file a motion,
instead issuing a decision on October
10 on his own motion. “This matter is
before the court on its own Motion for
Judgment on the Pleadings,” he wrote.
“In light of the decision of the Court of
Appeals for the Fourth Circuit in Bostic
v. Schaefer, as to which the Mandate
has now issued, the court determines
that North Carolina’s laws prohibiting
same-sex marriage are unconstitutional
as a matter of law.” After citing
the provisions he was enjoining, he
concluded: “Finally, in the hours
preceding this Order there have been a
number of last minute motions filed by
interested parties. The issue before this
court is neither a political issue nor a
moral issue. It is a legal issue and it is
clear as a matter of what is now settled
law in the Fourth Circuit that North
Carolina laws prohibiting same-sex
marriage, refusing to recognize samesex marriages originating elsewhere,
and/or threatening to penalize those
who would solemnize such marriages,
are unconstitutional.” Cogburn granted
his own motion and permanently
enjoined the state from enforcing the
unconstitutional laws. Attorney General
Carolina, this court finds no substantive
distinction
between
the
North
Carolina statutes and constitutional
amendment and the statutory and
constitutional provisions addressed
in Bostic v. Schaefer.” In addition to
ordering the state to cease enforcing
these unconstitutional provisions, he
dismissed without prejudice as moot the
original issue in this litigation, which
was North Carolina’s refusal to allow
second-parent adoptions. This becomes
moot because same-sex couples who
marry will be entitled to adopt jointly
under North Carolina’s adoption statute.
Apparently no appeal would be filed
in these cases by the state government,
although it was possible that legislative
leaders might file an appeal to the
4th Circuit, which would, of course,
be futile. * * * On October 14 the
Pasquotank County Magistrate, Garry
Littleton, refused to perform a marriage
Things moved forward more quickly in North
Carolina, where there were several federal
cases pending.
Cooper then asserted that Cogburn’s
ruling had statewide effect and would
be complied with, and same-sex couples
began marrying on October 10, bringing
the number of marriage equality
jurisdictions to 29, in light of the 9th
Circuit developments culminating on
the same date (see below). Subsequently,
Judge Osteen apparently changed course
on intervention, signing a new order
on October 14 allowing the legislative
leaders to intervene as defendants, so
that they could seek to appeal the other
order he signed on October 14, FisherBorne v. Smith, 2014 WL 5138914 (M.D.
N.C.), holding that Bostic is binding and
that the North Carolina marriage bans
are unconstitutional. He wrote, “This
court has independently reviewed the
relevant statutes and constitutional
amendments under both Virginia and
North Carolina law. As stated by all
parties, including the State of North
ceremony for a same-sex couple,
invoking his religious objections, which
led to heated skirmished on the internet
and a memorandum to state magistrates
by Pamela Best, counsel to the North
Carolina Administrative Office of the
Courts, warning that magistrates have a
duty to uphold the law as declared by the
courts, and that denial of a marriage to a
couple who have a valid marriage license
would be a violation of the oath of office,
as well as a constitutional violation.
Business2Community.com (blog),
Oct. 16. After the memo went around,
Rockingham County Magistrate John
Kallam Jr. resigned, saying he hadn’t
signed up to do same-sex marriages, of
which he disapproved. Associated Press,
Oct. 17. The Christian Post reported on
October 30 that at least six magistrates
had resigned rather than perform samesex marriage ceremonies. Our reaction:
It’s a new day, folks, so get over it. . . ■
November 2014 Lesbian / Gay Law Notes 452
9th Circuit Strikes Nevada and Idaho Same-Sex
Marriage Bans
I
t is getting really hard to write
seriously about the “arguments”
made
by
marriage
equality
opponents in litigation across the
country. In Latta v. Otter, 2014 U.S.
App. LEXIS 19152, 2014 WL 4977682
(Oct. 7, 2014), released the day after
the U.S. Supreme Court denied
certiorari in all pending marriage
equality appeals from other circuits,
the U.S. Court of Appeals for the
9th Circuit (in an opinion by Judge
Stephen Reinhardt) joined a long list
of federal courts that do everything,
short of issuing sanctions (by the way,
why not?), to signal the absurdity of the
arguments before them in support of
Mr. Otter showed his respect for
law enforcement authorities and the
judicial process, at least according
to Wikipedia, by explaining that
his erratic driving was the result of
reaching for his cowboy hat that had
blown off his head because of the wind
in his open car and that he had soaked
his chewing tobacco in Jack Daniels
(as if getting drunk on chewing
tobacco changes the outcome).
But we digress. Really, Mr. Otter’s
personal life has no relevance to his
efforts to ensure that many ordinary
Idahoans are denied the chance to
marry the person that he or she may
love.
Defendants argued, among other things,
that their same-sex marriage bans do not
discriminate on the basis of sexual orientation
but rather on the basis of “procreative
capacity.”
continuing to ban same-sex marriages.
At issue were the statutes and
constitutional amendments passed by
Idaho and Nevada to prevent same-sex
couples from marrying and refusing to
recognize same-sex marriages validly
performed elsewhere.
Leading the charge in support of
so-called traditional marriage is the
governor of Idaho, Clement Leroy
“Butch” Otter. Governor Otter, in
addition to being a champion of
traditional values, is the man who
divorced his wife of 28 years and
married a former Miss Idaho USA
four years later. It was the same
Butch Otter who was also convicted
of driving under the influence when
he was Idaho’s lieutenant governor.
Nevada is really only a nominal
defendant in this litigation. Like the
federal government in Windsor with
respect to the Defense of Marriage
Act, it continued to enforce the
marriage ban but asserted that in light
of Windsor and the circuit’s ruling
in SmithKline Beecham v. Abbott
Laboratories applying heightened
scrutiny
to
sexual
orientation
discrimination claims, it was clear
that the marriage bans amount to
unconstitutional
discrimination
against same-sex couples. The
Coalition for the Protection of
Marriage, an intervenor, continues to
participate in the litigation and offered
briefs and oral arguments in support
of both the Nevada and Idaho bans.
453 Lesbian / Gay Law Notes November 2014
The
Coalition’s
participation,
coupled with Nevada’s continued
enforcement of the bans, allowed
the court to quickly conclude that an
Article III case or controversy still
existed. The 9th Circuit also quickly
disposed of the great straw man of
marriage equality litigation – the
Supreme Court’s non-ruling in Baker
v. Nelson. There, the Supreme Court
had summarily dismissed an appeal
from a decision of the Minnesota
Supreme Court rejecting due process
and equal protection challenges to a
state law limiting marriage to a man
and a woman. Like many courts before
it, the 9th Circuit pointed out that there
have been some rather significant
Supreme Court decisions since then –
Romer, Lawrence, Windsor, to name
a few – making clear the present case
presents substantial federal questions.
So onto the merits we go where
defendants argued, among other
things, that their same-sex marriage
bans do not discriminate on the basis
of sexual orientation but rather on the
basis of “procreative capacity.” The
court’s legal reasoning rejecting this
argument is roughly akin to: “that’s
clever, but read the statute.” The
bans, on their face, said the court,
treat opposite-sex couples differently
than same-sex couples, and that
means the states cannot overcome the
“inescapable conclusion” that they are
discriminating on the basis of sexual
orientation.
Up next is the “procreative
channeling” argument, the one
that envisions a world in which
heterosexuals become less interested
in marriage because the gays are
let in and thus reduces the chance
that accidental pregnancy will lead
to marriage. You cannot make this
stuff up, unless of course you are,
for example, running for re-election
in a “red state” or raising money for
an advocacy organization whose
fundraising strategy revolves around
spreading fear of gay people. The court
noted that Governor Otter and the
Coalition (but not the state of Idaho)
argued that the bans promote child
welfare because mothers and fathers
have “complementary” approaches
to parenting that make for a better
upbringing for children.
The court takes note of the
absence of any empirical support for
the idea the same-sex marriage will
harm or even affect opposite-sex
couples or relationships. For example,
Massachusetts, a state with marriage
equality since 2004, has seen no
decrease in marriage rates or increase
in divorce rates. So the defendants are
left to concoct still more clever (or do
we mean potentially sanctionable?)
arguments.
There’s the one about how a father
in a heterosexual marriage may look
around and see two married moms and
conclude that his involvement in his
own child’s life is not essential, that
fathers are not necessary. The court
termed this proposition “crass and
callous” and rejected it out of hand.
That’s right, but taking defendants’
logic to its illogical extreme: why
wouldn’t that same father look around
at two dads who are married and
conclude that he is the most important
person in his own child’s life, that
mothers are unnecessary?
There is more like this, but enough
societal ink has already been wasted
on this stuff. The court ultimately
pointed out that private prejudices
and biases cannot be tolerated by the
Constitution; that marriage, in any
event, is not simply about procreation,
and that the statutes at issue are
grossly over- and under-inclusive
with respect to procreative capacity
(e.g., marriage licenses are given to
opposite-sex couples who cannot or
will not reproduce but not to same-sex
couples who already have children or
are in the process of adopting).
But then the court did something
that we wish it had not. It rhetorically
dared the defendants to demonstrate
the sincerity of their desire to increase
the number of children raised by their
married biological parents by, for
example, rescinding the right to nofault divorce or to divorce altogether.
Fair enough, 9th Circuit: you know
the states won’t do that and would face
constitutional hurdles if they tried. But
then you also float the idea of efforts,
as if equally fanciful, of banning
assisted reproduction using donor
sperm or eggs, gestational surrogacy,
and adoption, by both opposite-sex
and same-sex couples and by single
couples. We all hope these efforts are
as unlikely as the court appears to
think.
The court concluded its opinion
with further examples of the illogic
of defendants’ arguments, given that
both Idaho and Nevada allow gays and
lesbians to adopt children. Further,
the court noted that Nevada enacted
a domestic partnership statute that
affords same-sex domestic partners
parental rights identical to those of
married couples.
The court writes: “To allow samesex couples to adopt children and then
to label their families as second-class
because the adoptive parents are not
of the same sex is cruel as well as
unconstitutional.”
Take that, Governor Otter!
As a result, the court found that
the laws of Idaho and Nevada violate
the equal protection clause of the 14th
Amendment and do not satisfy the
circuit’s heightened scrutiny standard.
Judge Reinhardt, who authored
this opinion and many of the most
important 9th Circuit LGBT rights
cases, wrote a concurrence to
explain that he would also hold that
the fundamental right to marriage
is properly understood to include
the right to marry the individual of
one’s choice regardless of sex. His
concurrence is another soaring tribute
to the dignity of LGBT people and a
takedown of those who would continue
to deny LGBT people full equality.
Another member of the panel, Circuit
Judge Marsha Berzon, following up
on questions she asked during the oral
argument, wrote in concurrence that
she would also consider the same-sex
marriage ban to be unconstitutional
sex discrimination. – Brad Snyder
Brad Snyder is an attorney in New
York City.
[Editor’s Note: Nevada state officials,
who were not defending their marriage
ban on the merits, moved quickly to
comply, but the Coalition, which had
been allowed to intervene to defend
the bans, sought unsuccessfully to
delay implementation (including an
“Emergency Application” denied
by the Supreme Court), and filed a
motion for rehearing en banc with the
9th Circuit. The Coalition obviously
lacks standing to appeal this ruling, as
per the Supreme Court’s decision in
Hollingsworth v. Perry, the California
Proposition 8 case decided the same
day as U.S. v. Windsor last year, so
somebody should put them out of
their misery soon before they waste
more money on pointless litigation.
The Coalition’s en banc motion makes
the unusual and offensive argument
that their statistical analysis of panel
assignments in the 9th Circuit shows
that a suspiciously large proportion
of gay rights cases are assigned to
Judges Reinhardt and Berzon, claims
that the panel was deliberately stacked
with pro-gay judges, and that this
“unrepresentative” panel should
not have the last word on same-sex
marriage in the Circuit. In Idaho,
Governor Otter unsuccessfully sought
a stay from both the 9th Circuit and
the Supreme Court, so the ruling went
into effect after a brief delay when
Justice Anthony Kennedy referred the
stay application to the full Court; the
state later filed a motion with the 9th
Circuit for rehearing en banc. Both
pending en banc motions contend that
the panel decision is inconsistent with
circuit precedent and inappropriately
applied heightened scrutiny to evaluate
the equal protection challenge.
Developments in other states in the 9th
Circuit as a result of the panel ruling
are reported in separate stories below.]
November 2014 Lesbian / Gay Law Notes 454
Alaska Joins the Marriage Equality Column
O
ver the protest of Alaska
Governor Sean Parnell, who
vowed to undertake what
appeared to be a futile appeal, U.S.
District Judge Timothy M. Burgess
issued a surprise marriage equality
ruling on Sunday, October 12, in
Hamby v. Parnell, 2014 U.S. Dist.
LEXIS 145876, 2014 WL 5089399 (D.
Alaska), apparently reacting quickly
to the 9th Circuit’s decision in Latta
v. Otter. Burgess held a hearing on
October 10 and told the parties that he
would issue a ruling “soon,” but nobody
was expected a Sunday ruling just two
days later. Burgess made his injunction
effective immediately, and the state’s
Bureau of Vital Statistics announced
marriage license applications could
likelihood” that “a circuit split will
develop in the near future, leading
to review by the Supreme Court of
the important issue of whether state
traditional marriage laws violate
the Constitution. For these reasons,
the law on which the district court
grounded its opinion would continue
to be in rapid flux over the next several
months, and thus the Court should
stay its decision avoid chaos in the
administration of Alaska’s marriage
laws pending ultimate resolution of
this fundamental issue.” In light of
the 9th Circuit’s order allowing its
marriage equality decisions to go into
effect in Nevada and Utah (see above),
these arguments were non-starters.
Judge Burgess denied the motion, but
Judge Burgess’s ruling was virtually preordained, as the U.S. 9th Circuit Court of Appeals,
which has jurisdiction over appeals from Alaska,
had issued a unanimous ruling in Latta v. Otter
on October 7.
be filed on Monday morning, October
13. Alaska’s marriage laws provide
that licenses are not issued until three
days after the application is filed, and
a marriage cannot be performed until
a license is issued. However, couples
already married in other jurisdictions
won immediate recognition for their
marriages, and there were news reports
that some judges were willing to waive
the waiting period and performed
weddings on the 13th.
The state announced on October 13
that it would appeal the ruling to the
9th Circuit, and filed a motion with
Judge Burgess seeking a stay. The
state’s argument was that there was a
“reasonable likelihood” that the 9th
Circuit would rehear Latta v. Otter en
banc, and that there was a “reasonable
a three-judge panel of the 9th Circuit
temporarily stayed the decision on
October 15, giving the state until
noon on Friday, October 17, to obtain
a stay from the U.S. Supreme Court.
However, on October 17 the Supreme
Court denied the stay, and Judge
Burgess’s decision went into effect.
The state subsequently filed a motion
with the 9th Circuit seeking an en
banc hearing of its appeal, essentially
contending that the issue of same-sex
marriage should be reargued on the
merits before an expanded panel of the
circuit.
Judge Burgess’s ruling was
virtually pre-ordained, as the U.S. 9th
Circuit Court of Appeals, which has
jurisdiction over appeals from Alaska,
had issued a unanimous ruling in
455 Lesbian / Gay Law Notes November 2014
Latta v. Otter on October 7 (see above)
striking down same-sex marriage bans
in Nevada and Idaho, and the Supreme
Court had denied Idaho’s application
for a stay late on Friday, October 10.
Attorneys for the Idaho plaintiffs
promptly filed an application with the
9th Circuit to lift the stay on the district
court’s injunction, and the circuit gave
the state until noon on October 13
to file a response. Meanwhile, some
Idaho clerks had already begun issuing
marriage licenses to same-sex couples
upon word that a temporary stay issued
on October 8 by Supreme Court Justice
Anthony Kennedy had been lifted.
Burgess went beyond the 9th
Circuit’s ruling. The 9th Circuit threejudge panel was unanimous in finding
that the Nevada and Idaho bans violate
the Equal Protection Clause of the 14th
Amendment, applying the circuit’s
“heightened scrutiny” standard to
laws that discriminate because of
sexual orientation. One member of
that panel, Judge Berzon, concurred,
arguing that the ban was also a form of
sex discrimination. Another member,
Judge Reinhardt, concurred in an
opinion arguing that the bans violate
the Due Process Clause by impairing
the fundamental right to marry.
Judge Burgess, who was appointed
to the court in 2005 by President
George W. Bush, ruled on both Due
Process and Equal Protection grounds.
Rejecting the state’s argument that
the plaintiffs were seeking a “new”
constitutional right of “same-sex
marriage,” Burgess pointed out that
although the Supreme Court’s cases
describing marriage as a fundamental
right had all involved different-sex
couples, “nothing in the decisions
indicates that the fundamental right
to marry is circumscribed by other
defining characteristics (e.g., in this
case, a fundamental right to ‘malefemale marriage’). The Supreme
Court has never described or defined
marriage as a right that is dependent
upon the particular facts of the case
before it or a right belonging to a
particular group; on the contrary, its
discussion of marriage has consistently
been ‘in broad terms independent of
the persons exercising it,” he wrote,
quoting from the 10th Circuit’s
decision in Kitchen v. Herbert, the
Utah same-sex marriage case.
“The Court has been called upon
to use reasoned judgment to interpret
the right to choose whom to marry
and the breadth of that right under
substantive due process,” wrote
Burgess. “It is in consideration of this
duty that the Court finds that marriage
between individuals of the same
sex is encompassed by our nation’s
longstanding fundamental right to
marry.” Furthermore, Burgess found
it to be “obvious” that the Alaska
same-sex marriage ban violated this
right. “While homosexuality and the
union of same-sex couples through
marriage may be against the beliefs or
beyond the moral parameters of some
Americans,” he continued, “the core
purpose of the Fourteenth Amendment
is to protect an individual’s freedom
by ensuring that a constitutional right
is not ‘infringed simply because a
majority of the people choose that it
be.’ Alaska’s laws prohibiting samesex marriage ‘usurp, disregard, and
disrespect’ the fundamental right
of all homosexuals to choose who
to marry; a right of liberty, privacy,
and association freely given to
heterosexuals.” Burgess concluded
that the state’s ban also violated the
right of same-sex couples married
elsewhere to have their marriages
recognized in Alaska.
Turning to the Equal Protection
argument, Burgess held that he was
bound to apply “heightened scrutiny”
as required by 9th Circuit precedent,
placing the burden on Alaska to
justify its marriage ban. He found
that the interests argued by the state
were insufficient to meet this burden.
While conceding the government’s
interest in allowing citizens to “vote
and decide critical issues affecting
their lives,” Burgess found that this
interest could not justify letting the
state “exercise its power to define
marriage in a way that infringes upon
individuals’ constitutional rights.”
“Even if a majority of citizens
disapprove of homosexuality, an
infringement on same-sex couples’
constitutional
rights
‘must
be
predicated
on
legitimate
state
concerns other than disagreement with
the choice the individual has made,’”
since “fundamental rights may not
be submitted to a vote.” Burgess’s
discussion weaved together quotations
from the 9th Circuit’s Nevada and
Idaho decision, as well as the 7th
Circuit’s earlier decision on marriage
bans from Wisconsin and Indiana. But,
ultimately, he found that there was no
rational or logical relationship between
Alaska’s interest in letting its citizens
vote on policy issues and its obligation
to respect the constitutional rights of
gay citizens. Similarly rejecting an
argument from “tradition,” Burgess
quoted from 7th Circuit Judge Richard
Posner’s musings about the terrible
traditions that nobody would want to
preserve.
Turning to the state’s argument
that its ban was justified by concern
for children, Burgess pointed out
that children being raised by samesex couples would benefit from
their parents being able to marry.
“It is estimated that 23% of samesex couples in Alaska are raising
children (biological, adopted, or stepchildren), the third highest percentage
in the nation,” he wrote. “Preventing
these individuals from participation
in marriage places upon them
unwarranted social, economic, and
political burdens and prevents them
from obtaining the extensive benefits
and protection that are provided to
families of opposite-sex couples.”
“By singling out homosexual
couples and banning their ability to
marry an individual of their choosing,”
wrote Burgess, “it is impossible to
assert that all Alaskans are equal
under the state’s laws.”
Concluding in a way that signaled
that he would have found the
marriage bans unconstitutional even
under the more deferential rational
basis test, Burgess wrote, “In sum,
any relationship between Alaska’s
same-sex marriage laws and the
government interests asserted by
Defendants is either nonexistent or
purely speculative. Alaska’s same-sex
marriage laws are a prime example of
how ‘the varying treatment of different
groups or persons is so unrelated to
the achievement of any combination
of legitimate purposes that we can
only conclude that the legislature’s
actions were irrational.’ Refusing the
rights and responsibilities afforded
by legal marriage sends the public a
government-sponsored message that
same-sex couples and their familial
relationships do not warrant the status,
benefits, and dignity given to couples
of the opposite sex.”
Burgess concluded by declaring the
laws unconstitutional “for violating
the Due Process and Equal Protection
Clauses of the Fourteenth Amendment
to the United States Constitution,” and
enjoined the state from enforcing those
laws to exclude same-sex couples from
marriage.
The plaintiffs in the case, four
same-sex couples who married
elsewhere and sought recognition of
their marriages in Alaska and one
couple seeking to marry in the state,
were represented by Alaska attorneys
Caitlin Shortell, Allison Mendel and
Heather Gardner.
The Alaska ruling came just days
after the Supreme Court had lifted
Justice Kennedy’s temporary stay in
the Idaho case, and shortly after the
Coalition for the Protection of Marriage
had withdrawn its applications to the
Supreme Court and the 9th Circuit
seeking a stay of the Nevada marriage
ruling. With the Supreme Court’s
refusal to stay the Alaska ruling, the
district court’s order went into effect
and Alaska officially became the 31st
marriage equality state. However, as
noted above, the state filed a motion
with the 9th Circuit seeking that an en
banc 11-judge panel be designated to
hear the state’s appeal. The 9th Circuit
set a briefing schedule that suggests
there will not be a hearing on the
state’s appeal until late February or
March 2015, by which time same-sex
marriage in Alaska will be old news. ■
November 2014 Lesbian / Gay Law Notes 456
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Federal Court Grants Summary
Judgment for Marriage Equality in
Two Arizona Cases
G
ranting summary judgment
motions in two marriage equality
cases, Senior U.S. District Judge
John W. Sedwick ruled on October
16 that Arizona’s constitutional and
statutory same-sex marriage bans
violated the Equal Protection Clause
of the U.S. Constitution. Connolly v.
Jeanes, 2014 WL 5320642 (D. Ariz.,
filed Oct. 17, 2014); Majors v. Horne,
14 F.Supp.3d 1313 (D. Ariz., filed Oct.
17, 2014). Judge Sedwick, who was
appointed to the U.S. District Court
in Alaska by President George H.W.
Bush, hears many Arizona cases by
assignment to help out the understaffed
district court in that state. Sedwick made
his decision immediately effective, and
later on October 16 Attorney General
Tom Horne announced that the state
would not appeal. Horne sent an email
to county clerks advising that they
should comply with the court’s order.
Lambda Legal and pro bono counsel
from the law firm Perkins Coie LLP,
filed the complaint in Majors on March
13, and had previously secured from
Judge Sedwick an emergency order
on behalf of one of the co-plaintiffs,
whose same-sex spouse had died and
who desired to have the death certificate
accurately reflect their marriage and his
status as a surviving spouse based on
their recent California marriage. In that
ruling, signed on September 12, see 2014
WL 4541173, the judge left little doubt
that the plaintiffs were likely to prevail,
and he ordered the state to provide the
relief that had been requested on behalf
of Fred McQuire. However, the 9th
Circuit’s subsequent ruling in Latta v.
Otter sealed the matter both for this
case and for the other pending case.
“When the pending motions were
filed,” wrote Sedwick, “their resolution
would have required this court to
produce a lengthy and detailed opinion.
However, in the interim, the Court of
Appeals for the Ninth Circuit recently
ruled that substantially identical
provisions of Nevada and Idaho law
that prohibited same-sex marriages are
invalid because they deny same-sex
couples equal protection of the law,
the right to which is guaranteed by the
Constitution of the United States. This
court is bound by the precedent set
by the Court of Appeals for the Ninth
Circuit. For that reason, the plaintiffs
are entitled to a declaration that the
challenged laws are unconstitutional
and a permanent injunction prohibiting
their enforcement.” Sedwick went on to
explain that he had considered whether
to stay his ruling pending appeal, but
decided that “an appeal to the Ninth
Circuit would be futile” and that the
Supreme Court was likely to “turn a
deaf ear on any request for relief from
the Ninth Circuit’s decision” in light
of its recent denials of certiorari in
all pending state appeals of marriage
equality rulings. He might have added,
as well, the Court’s refusal to grant
Idaho’s emergency stay application
seeking to delay same-sex marriages
while that state prepared a motion for
rehearing en banc of the 9th Circuit’s
opinion.
Concluded
Sedwick,
after
declaring the challenged provisions
unconstitutional, “It is further ordered
that the defendants are hereby ordered to
permanently cease enforcement of those
provisions of Arizona law declared
unconstitutional by this order. Finally,
this court declines to stay the effect of
this order.” He denied the defendants’
cross-motion for summary judgment.
The Connolly complaint was filed
by a group of Phoenix and Flagstaff
attorneys in January, and was later
consolidated with Lambda Legal’s
case before Judge Sedwick. When
Attorney General Horne announced
that the state would not appeal, Arizona
became the 30th state to have marriage
equality. Governor Jan Brewer issued a
histrionic statement channeling Justice
Scalia’s dissent from Windsor about the
impropriety of judges ruling on such
issues. ■
457 Lesbian / Gay Law Notes November 2014
Wyoming Marriage Equality Began on October 21
S
tate authorities in Wyoming
announced on October 20 that
Attorney General Peter Michael
would file a notice with the U.S.
District Court on Tuesday, October
21, certifying that the state would
not appeal U.S. District Judge Scott
W. Skavdahl’s Order, filed on Friday,
October 17, confirming that under 10th
Circuit precedent the state must allow
same-sex couples to marry. The judge
had stayed his Order until October
23 at 5 p.m. unless the state certified
earlier that it would not be appealing.
“After reviewing the law and the
judge’s decision that binding precedent
requires recognition of same-sex
marriage, I have concluded that further
legal process will result in delay but
not a different result,” said Michael in
a statement released by his office.
Skavdahl’s ruling in Guzzo v. Mead,
2014 U.S. Dist. LEXIS 148481, 2014
WL 5317797 (D. Wyoming, Oct. 17,
2014), came one day after the lead
defendant, Governor Matthew Mead,
stated during an election debate that
he would not appeal a ruling by the
court, in light of the 10th Circuit
precedents. The 10th Circuit ruled
in Kitchen v. Herbert, 755 F.3d 1193
(2014) and Bishop v. Smith, 760
F.3d 1070 (2014), that the Utah and
Oklahoma constitutional and statutory
bans on same-sex marriage violate the
14th Amendment by depriving samesex couples of the fundamental right
to marry in the absence of sufficient
justification under the test of strict
scrutiny. The U.S. Supreme Court
denied petitions to review these two
rulings on October 6, and subsequently
denied stay applications in marriage
equality cases from other states.
The Supreme Court’s actions sent a
clear message to lower federal courts
and to state officials fighting marriage
equality lawsuits: the Supreme Court
is not interested at present in hearing
appeals from pro-marriage equality
rulings or in delaying them from going
into effect. Thus, attempts to delay
or appeal are “futile,” as Arizona’s
attorney general, Tom Horne, had said
in explanation of his decision not to
appeal a marriage equality ruling in
that state by U.S. District Judge John
Sedwick (see above).
Wyoming is one of a handful of
western states that had not adopted a
constitutional amendment banning
same-sex marriage, so a lawsuit had
previously been filed in state court,
Courage v. State of Wyoming (filed
in Laramie County District Court
on March 5, 2014), claiming that
a statutory ban violated the state
constitution. However, in the recent
acceleration of federal marriage
equality litigation spurred by the 10th
Circuit’s rulings during the summer
and then the Supreme Court’s surprise
announcement on October 6 that it
would not review the pro-marriage
equality rulings by the 4th, 7th and
10th Circuit Courts of Appeals, a
federal suit was filed in Wyoming to
push things forward more quickly
as the state action was not really
progressing anywhere. National Center
for Lesbian Rights joined with local
attorneys Tracy Zubrod, the law firm of
Arnold & Porter LLP, and the law firm
of Rathod Mohamedbahi LLC, to move
the Wyoming case forward quickly to
a summary judgment ruling. The suit
was filed on behalf of four same-sex
couples and Equality Wisconsin, a gay
rights political organization.
Judge Skavdahl’s opinion did not
display the enthusiasm and passion of
earlier district court opinions issued
over the past year. He clearly projected
that he was issuing a ruling that he had to
issue rather than a ruling that he wanted
to issue. “This Court is bound to apply
and follow Tenth Circuit precedent
unless and until it is overruled by the
Tenth Circuit en banc or superseded
by a contrary United States Supreme
Court decision,” he explained. “The
Tenth Circuit’s decisions in Bishop and
Kitchen are binding upon this Court
and determinative.” The judge devoted
a page of his opinion to setting out his
understanding of constitutional history
and the separation of powers, as well
as extolling the doctrine of “judicial
restraint” in the face of politicallycharged legal issues. “The preferred
forum for addressing the issues
presented by Plaintiffs in this case is the
arena of public debate and legislative
action,” he wrote with seeming regret.
“However, that ship has sailed. It is not
the desire or preference of this Court to,
with the stroke of a pen, erase a State’s
legislative enactments. Nonetheless,
the binding precedent of Kitchen and
Bishop mandate this result, and this
Court will adhere to its Constitutional
duties and abide by the rule of law.”
Clearly, were he not bound by 10th
Circuit precedent, Judge Skavdahl
would have preferred to rule that
this case involves a political question
and that the court would defer to the
legislative choices of Wyoming. In this,
he was siding with U.S. District Judge
Martin Feldman of Louisiana, the sole
federal district judge over the past year
to rule against marriage equality. But
Feldman was ruling in a state in the
5th Circuit, where there is no court
of appeals precedent. An appeal from
Feldman’s ruling will be argued in the
5th Circuit in November, together with
the state’s appeal of a pro-marriage
equality ruling from Texas.
Although the pending state court
action is independent from this federal
court ruling, the state was likely to be
successful in getting it dismissed on
grounds of mootness after the federal
ruling took effect on October 21.
Judge Skavdahl was appointed to
the federal bench by President Barack
Obama in 2011. In an interview with
Jeffrey Toobin published in The New
Yorker on October 17, President Obama
said that the best Supreme Court action
during his administration was the
Court’s October 6 decision to deny
review of the circuit court marriage
equality rulings. “Ultimately,” he told
Toobin, “I think the Equal Protection
Clause does guarantee same-sex
marriage in all fifty states.” Wyoming
brought the count to 32. ■
November 2014 Lesbian / Gay Law Notes 458
Federal Court in Puerto Rico Dismisses Marriage
Equality Case
U
.S. District Judge Juan M. PerezGimenez ruled on October 21,
2014, that he was bound by a
precedential decision of the U.S. Court
of Appeals for the 1st Circuit to dismiss
a lawsuit brought by Lambda Legal on
behalf of Puerto Rican same-sex couples
seeking either to marry or to have their
out-of-state marriages recognized by
the Commonwealth of Puerto Rico.
The judge based his ruling in CondeVidal v. Garcia-Padilla, 2014 U.S. Dist.
LEXIS 150487, 2014 WL 5361987 (D.
P.R.), on the 1st Circuit’s 2012 decision
in Massachusetts v. U.S. Dept. of
Health and Human Services, 682 F.3d
1 (1st Cir. 2012), striking down Section
3 of the federal Defense of Marriage
with the 1st Circuit on October 28.
In light of the basis for his ruling,
it was not necessary for the judge
independently to evaluate the plaintiffs’
constitutional claims, but his opinion
made clear that he believed that Puerto
Rico has a right to determine who can
marry and whose marriages are to be
recognized as a matter of its own selfgovernment.
When the Minnesota Supreme
Court rejected a federal constitutional
challenge to that state’s marriage ban
in 1971, the law governing Supreme
Court jurisdiction required the U.S.
Supreme Court to consider and decide
on the merits any appeal from such a
ruling. The Supreme Court’s practice at
He viewed Windsor as more of a federalism case,
in which the Supreme Court found that the
federal government could not interfere with the
state’s authority to decide who could marry.
Act, in which that court said that a
1971 decision by the Supreme Court
to reject a constitutional challenge to
Minnesota’s same-sex marriage ban
was still binding law. Judge PerezGimenez also asserted that the Supreme
Court’s 2013 decision, U.S. v. Windsor,
striking down that provision of DOMA
in an appeal from the 2nd Circuit, did
not affect this conclusion. He viewed
Windsor as more of a federalism case, in
which the Supreme Court found that the
federal government could not interfere
with the state’s authority to decide
who could marry. Indeed, he found
that Windsor supported Puerto Rico’s
defense by rejecting federal interference
with such state policy decisions.
Lambda Legal promptly announced
that it would appeal this “aberrant”
ruling to the 1st Circuit Court of
Appeals, and filed a notice of appeal
that time was to dispose of those cases
that the Justices considered to be sure
losers by issuing a one-line decision,
dismissing the appeal as not presenting
a “substantial federal question.” Such
a ruling is considered to be a decision
on the merits of the questions presented
by the appeal, and is binding on
lower federal courts unless it is either
overruled by the Supreme Court or later
Supreme Court decisions clearly render
it no longer viable as a precedent. The
Court issued such a one-sentence ruling
in Baker v. Nelson, 409 U.S. 810 (1972).
During the recent flurry of marriage
equality cases, defenders of the existing
marriage bans have usually cited Baker
v. Nelson as blocking lower federal
courts from deciding marriage equality
cases.
Prior to U.S. v. Windsor, lower
courts had frequently agreed with
459 Lesbian / Gay Law Notes November 2014
this defense, but after Windsor federal
courts have almost uniformly rejected
it, frequently by citing and quoting
from Justice Antonin Scalia’s dissenting
opinions in Windsor and the earlier
case of Lawrence v. Texas (2003), in
which the Court struck down the Texas
homosexual sodomy law. Scalia’s
dissents asserted that the reasoning
of the Court’s decisions in these cases
would support claims for a right to
same-sex marriage under the 14th
Amendment. In his Windsor dissent,
he paraphrased a portion of the majority
opinion to show how a lower court could
write such a decision channeling the
reasoning of the majority decision.
The four circuit court of appeals
marriage equality decisions that were
denied review by the Supreme Court
on October 6 had all ruled that Baker
v. Nelson was no longer a controlling
precedent. Although a Supreme Court
denial of review is not a ruling on the
merits of the lower court decision, these
denials have been widely interpreted
as tacit agreement with the lower
courts’ dismissal of the Baker v. Nelson
precedent. If a majority of the Justices
thought that Baker v. Nelson was still a
binding precedent on lower courts, they
could instead have summarily reversed
the lower court rulings, citing Baker, or
at least so one would have thought. But
clearly there was not a majority on the
Supreme Court to take such an action,
which would require votes from 5 of the
Justices. Most observers assume that the
Court’s four conservatives did not vote
to grant review for fear that a majority
of the Court would affirm the marriage
equality decisions, thus creating a
national precedent, while the remaining
members of the Court, including Justice
Kennedy, saw no reason to take up the
issue when there was not a current split
between circuit courts. This view was
reaffirmed when the Court subsequently
refused to stay new marriage equality
rulings from the 9th Circuit and the
state of Alaska.
But Judge Perez-Gimenez, as a
district court judge in the 1st Circuit, is
bound by 1st Circuit precedent. Had he
agreed with the plaintiffs’ arguments on
the merits, he could easily have ruled that
the 1st Circuit’s 2012 statement about
Baker v. Nelson was no longer binding
on him because of the subsequent
decision in Windsor. However, he lined
up with two dissenting circuit court
judges (from the 4th and 10th circuits)
who have argued that Windsor did
not necessarily overrule Baker. For
one thing, the majority opinion in
Windsor did not discuss or explicitly
overrule Baker. For another, as the 1st
Circuit observed in its DOMA case,
the question whether DOMA’s federal
definition of marriage violated the 5th
Amendment Due Process Clause was
different from the question whether
state bans on same-sex marriage violate
the 14th Amendment Due Process and
Equal Protection Clauses, implicating
questions of federalism that are not
present in the challenges to state laws.
The Puerto Rico plaintiffs had
argued that the 1st Circuit’s comments
about Baker v. Nelson were merely
“dicta,” that is commentary unnecessary
to the decision of the case, and thus not
binding on lower courts in the circuit.
Judge Perez-Gimenez rejected this
contention, arguing that discussing was
necessary to the 1st Circuit’s choice
of a doctrinal basis to strike down
the DOMA provision. Even if the 1st
Circuit’s comments were not binding as
precedent, he contended that they would
be a persuasive precedent that a district
court would be wise to follow.
Dramatically illustrating the strong
tide against which he was swimming
in this regard, Judge Perez-Gimenez
devoted almost an entire page of his
opinion to citing all of the circuit and
district court rulings going the other
way, stating that “notwithstanding” this
long list of cases, “this Court will apply
Baker v. Nelson, as the Supreme Court
has instructed it to do” in cases where
the Supreme Court has stated that lower
courts should follow Supreme Court
precedents, no matter how old, which
have not been overruled or disavowed
by the Supreme Court. He argued that
none of the Supreme Court decisions
usually cited by litigants and courts to
the contrary actually overruled Baker.
Despite this basis for his ruling,
Judge Perez-Gimenez decided to add
some “dicta” of his own making clear
that he would reject the plaintiffs’
claims on the merits were it open to him
to do so. “Recent affirmances of samegender marriage seem to suffer from a
peculiar inability to recall the principles
embodied in existing marriage law,”
he wrote.
Traditional marriage is
‘exclusively an opposite-sex institution
. . . inextricably linked to procreation
and biological kinship,’” he quoted
from Justice Samuel Alito’s dissenting
opinion in U.S. v. Windsor. “Traditional
marriage is the fundamental unit of
the political order. And ultimately
the very survival of the political order
depends upon the procreative potential
embodied in traditional marriage,”
wrote Judge Perez-Gimenez. Thus,
the judge overlooked the thousands
of children being raised by same-sex
couples, whose fate had proven central
to the 7th and 9th Circuit’s recent promarriage equality decisions.
Commenting on the recent spate
of pro-marriage equality decisions,
he wrote, “In their ingenuity and
imagination they have constructed
a seemingly comprehensive legal
structure for this new form of marriage.
And yet what is lacking and unaccounted
for remains: are laws barring polygamy,
or, say the marriage of fathers and
daughters, now of doubtful validity? Is
‘minimal marriage’, where ‘individuals
can have legal marital relationships with
more than one person, reciprocally or
asymmetrically, themselves determining
the sex and number of parties’ the
blueprint for their design? It would seem
so, if we follow the plaintiffs’ logic, that
the fundamental right to marriage is
based on ‘the constitutional liberty to
select the partner of one’s choice.’”
The judge’s response to these
concerns is to assert that they present
policy questions to be decided in the
political process, not by courts. “For
now,” he wrote, “one basic principle
remains: the people, acting through their
elected representatives, may legitimately
regulate marriage by law.” He rooted
this principle in a recent Supreme Court
decision that rejected a constitutional
challenge to a popularly enacted state
constitutional amendment banning
affirmative action in Michigan, Schuette
v. Coalition to Defend Affirmative
Action, 134 S. Ct. 1623 (2014), in which
Justice Anthony Kennedy, a champion
in the leading Supreme Court gay rights
cases, wrote: “It is demeaning to the
democratic process to presume that the
voters are not capable of deciding an
issue of this sensitivity on decent and
rational grounds.”
Lambda Legal’s appeal will present
the 1st Circuit with an unanticipated
opportunity to weigh in on the samesex marriage debate. All of the states
in that circuit – Maine, New Hampshire,
Massachusetts and Rhode Island –
are marriage equality jurisdictions,
beginning with a Massachusetts
Supreme Judicial Court decision in
2003 and continuing with legislative
enactment of marriage equality laws by
the other three states. Although a 1st
Circuit panel said that it viewed Baker
v. Nelson as a binding precedent in
2012, it is possible that the court would
reconsider that view in light of Windsor
and the stream of rulings by other courts
of appeals that have relied on Windsor
in their determination that Baker is no
longer binding. If the 1st Circuit decides
to stick with its previously-expressed
view, this case could provide the vehicle
to get the marriage equality issue up
to the Supreme Court. Of course, it is
possible that a ruling from the 5th, 6th,
8th or 11th Circuit will get the question
there sooner, if any of those circuits rule
adversely on a marriage equality claim.
Appeals are now pending in all of those
circuits except the 8th, where two states
already have marriage equality and
litigation is pending in the other five
states.
Judge Perez-Jimenez was appointed
to the district court by President Jimmy
Carter in 1979. Although Puerto Rico
is not a state, its federal district court
has the same status as district courts
in the fifty states and the District of
Columbia, and it is formally part of the
1st Circuit for purposes of appellate
review. ■
November 2014 Lesbian / Gay Law Notes 460
Missouri Court Strikes Down Statutes Prohibiting the
Recognition of Same-Sex Marriages
O
n October 3, 2014, Judge J. Dale
Youngs of the Circuit Court of
Missouri, Jackson County, ruled
that out-of-state marriages between
same-sex couples that were legal in
the jurisdiction in which they were
contracted must be recognized in the
state of Missouri. Barrier v. Vasterling,
2014 WL 4966467. Because of this
ruling, sections 451.022 and 104.012 of
the Revised Statutes of Missouri and
Article 1, section 33 of the Missouri
Constitution, which regulate the
recognition of marriages, were found to
be invalid to the extent that they barred
such recognition.
In this case, the plaintiffs are several
gay and lesbian couples who live in
Missouri and who were legally married
in other jurisdictions that recognize
same-sex marriages. On February 11,
2014, eight of the current plaintiffs
filed an action pursuant to 42 U.S.C.
1983 that asked for the following relief:
declaratory judgment that states that
the Missouri provisions in question
violate the Due Process Clause of the
Fourteenth Amendment; declaratory
judgment that states that the same
provisions violate the Equal Protection
Clause of the Fourteenth Amendment;
permanent injunction that directs
defendants to recognize all marriages,
both same-sex and heterosexual, entered
into outside the state of Missouri; award
of costs and attorneys’ fees. On May
21, 2014, an amended petition noted
the addition of four more plaintiffs. All
plaintiffs filed a motion for summary
judgment against defendants pursuant
to Rule 74.04 of the Missouri Rules
of Civil Procedure. The defendants
in this case are as follows: Director of
the Missouri Department of Health
and Senior Services Gail Vesterling;
Attorney General of Missouri Chris
Koster; Governor of Missouri Jeremiah
Nixon; and the City of Kansas City.
In this case, all parties, both
plaintiffs and defendants, agree that the
only issues for the Court to decide are
issues of law. In other words, the facts
regarding plaintiffs, their relationships,
and their marriages are assumed to be
true, as are the facts concerning the
Missouri provisions regulating marriage
recognition. In 1996, Chapter 451 of
the Revised Statutes of Missouri was
revised to state: “1. It is the public policy
of this state to recognize marriage only
between a man and a woman. 2. Any
purported marriage not between a man
and a woman is invalid. 3. No recorder
shall issue a marriage license, except to a
man and a woman.” In addition, in 2001,
the General Assembly enacted section
104.012, which stated that “for the
purposes of public retirement systems
administered pursuant to this chapter,
any reference to the term ‘spouse’ only
recognizes marriage between a man
and a woman.” Thus, the case rests
on the Court’s determination of the
constitutional validity of these statutes.
Regarding the equal protection claims
based on the Fourteenth Amendment,
the court finds that the Missouri
provisions about marriage recognition
intrude upon this fundamental right. In
deciding as such, the court first evaluated
whether plaintiffs had standing to make
this claim against defendants. Standing
calls for a party to have “some legally
protectable interest in the litigation so as
to be directly and adversely affected by
its outcome.” Glossip, 411 S.W.3d at 803.
In this case, plaintiffs clearly possess
standing as the state’s unwillingness to
recognize their marriages disadvantages
them in a number of ways. Because the
state is singling out plaintiffs’ marriages
due to the sexual orientation associated
with it, the court finds a clear violation
of the equal protection of the law as not
all people are able to enjoy the same
rights and benefits of marriage under
Missouri statutes.
In defending their position, State
defendants advance one major claim
that Missouri has a “rational interest in
setting forth a standardized definition
of marriage, such that local authorities
responsible for issuing marriage
licenses do so consistently, uniformly,
and predictably across Missouri’s 114
counties.” To this claim, the court agrees
that Missouri needs to have a standard
definition of marriage in order to facilitate
461 Lesbian / Gay Law Notes November 2014
the issuance of marriage licenses.
At the same time, however, the court
finds no logical relationship between
the interest to promote “consistency,
uniformity, and predictability” and
laws that discriminate against gay men
and lesbians who have been married
in jurisdictions that recognize samesex marriages. In addition, there is no
evidence that such discriminatory policy
against same-sex marriages positively
affects the ability of local authorities
to work “consistently, uniformly, or
predictably.”
For the reason stated above, the
court granted in part the plaintiffs’
motions for summary judgment in the
following ways: the court finds that
sections 451.022 and 104.012 as well as
Article I violate the plaintiffs’ right to
equal protection under the Fourteenth
Amendment; the Court prohibits
defendants from enforcing these statutes
and thereby orders them to recognize
the marriages of any same-sex couples
that were contracted in jurisdictions
that recognized such marriages; the
court awards plaintiffs their reasonable
attorneys’ fees. – Daniel Ryu
Daniel Ryu studies at Harvard (’16).
[Editor’s Note: Attorney General Koster
subsequently announced that he would
not appeal this ruling, so Missouri became
a marriage recognition jurisdiction,
but the state is not issuing marriage
licenses to same-sex couples pending
decisions in ongoing federal lawsuits.
Shortly after Koster’s announcement,
the Missouri Consolidated Health Care
Plan, which provides health insurance
for state employees and retirees,
announced that it would expand benefits
eligibility to same-sex spouses who have
valid marriage certificates from other
states. The plan covers almost 100,000
people statewide. A spokesperson for
the plan said that it had begun receiving
inquiries about such coverage as soon as
Koster announced he would not appeal
the court ruling, reported the Springfield
News-Leader on October 10.]
Trial Court’s Presumption that a Self-Identified
Heterosexual Man Would Not Sexually Abuse another
Man is Faulted
I
n J.O. v O.E., 2014 D.C. App. Lexis
397, 2014 WL 4930899 (D.C. Ct. App.,
Oct. 2, 2014), the District of Columbia
Court of Appeals vacated a trial judge’s
decision which, it seemed, improperly
relied on a Defendant’s testimony about
his sexual orientation, claiming that he
is heterosexual, as proof that he did not
commit a sexual assault on another male.
Appellant J.O. lived in the basement
room of a house, and in the summer of
2012, Appellee O.E. rented a room on
the second floor. After O.E. moved in,
J.O. filed a petition in court for a Civil
Protection Order (“CPO”), alleging that
O.E. harassed, stalked, threatened, and
made repeated sexual advances towards
him. The court issued a two-week
temporary protection order, requiring
O.E. to vacate the residence. Short
thereafter, at a hearing regarding the
matter, J.O. testified to three incidents
of sexual harassment and assault,
claiming that O.E. had exposed himself,
propositioned J.O. for sex, physically
assaulted him with his hand and genitalia,
and threatened him with “trouble” in
connection with J.O.’s supposed status
as an undocumented immigrant if he did
not yield to O.E.’s sexual advances. O.E.
denied all these allegations vehemently,
and insisted that he was heterosexual.
At trial, the judge found that all the
evidence presented by both parties was
in equipoise, “equally balanced in the
mind of the finder of fact,” because both
parties testified with much strength, and
he could not make a disposition based on
either’s demeanor. In O.E.’s testimony,
however, the judge paid particular
attention to his having “steadfastly put
on a very strong defense that he is not
gay.” The court found this not irrelevant,
because by claiming that he does not
have a “homosexual orientation,”
O.E. is “not going to approach J.O. for
sex.” Elaborating on O.E.’s insistence
that he was “not oriented towards
homosexuality,” the judge stated: “Now
obviously I cannot say what does a
homosexual look like. No such thing
exists. It is an orientation in the person
and he has strongly, steadfastly, with
great conviction, indicated that he’s not
so oriented.”
J.O. moved for reconsideration,
arguing that O.E.’s heterosexuality was
irrelevant to the question of whether O.E.
had sexually assaulted him, however,
the judge merely acknowledged J.O.,
and stated that this was not the only
consideration the court took into account,
expressing two credibility issues that
thereby did not meet the judge’s burden
of proof.
Under D.C. Code § 16-1005 (c), the
Intrafamily Offense Act, a person who
alleges that he or she is a victim of
interpersonal, sexual assault, or sexual
abuse is empowered to seek a civil
is problematic, further stating that it is
“simplistic and unsound.” Writing for the
court, Judge Glickman declared that there
is no doubt that same-sex (male) sexual
assaults and harassment are committed
not infrequently by individuals who
claim that they are straight. Further,
among other reasons, this reflects the
fact that strong sexual attraction may
co-exist with a refusal or inability to
acknowledge it, and therefore, sexual
assaults may have motives other than
sexual attraction, clarifying that they
may be committed with intent to “abuse,
humiliate, harass, or degrade” the victim.
Due to this analysis, the court
concluded that the circumstances in
this case render O.E.’s heterosexual
orientation not substantially probative
Judge Glickman declared that there is no doubt that
same-sex (male) sexual assaults and harassment
are committed not infrequently by individuals who
claim that they are straight.
protection order against the offender,
including criminal offenses committed
by an offender with whom the victim
shares a mutual residence. The court
may grant the CPO if it is shown by a
preponderance of the evidence that “there
is good cause to believe the respondent
has committed or threatened to commit
a criminal offense against the petitioner.”
The appellate court stated that the trial
judge’s explanation for denying the CPO
left them “uncertain, and in doubt” as to
whether the judge fulfilled the obligation
to base his decision on “correct legal
principles, a sufficient factual basis, and
substantial reasoning,” in accordance
with the CPO. The court stated that the
syllogism regarding O.E. not being a
homosexual, thereby concluding that
O.E. would not approach J.O. for sex,
of whether he sexually assaulted J.O.
The judge stated that if the trial judge
based his ruling on this mistaken logic,
he erred. Although the judge touched
upon other reasons, unrelated to O.E.’s
sexual orientation, for his failure for
reconsideration, the judge did not further
clarify the basis of his ruling, so the
appellate court held that “because there
is a real possibility the judge relied
improperly on O.E.’s purported sexual
orientation as proof that he did not
commit the alleged offenses, we vacate
the decision denying J.O.’s petition for a
CPO and remand the case for the judge
to make a determination without reliance
on a flawed rationale.” – Anthony Sears
Anthony Sears studies at New York Law
School (’16).
November 2014 Lesbian / Gay Law Notes 462
11th Circuit Vacates Child Porn Conviction, Finding
Jury Might Have Been Biased
A
n 11th Circuit U.S. Court of
Appeals panel voted 2-1 in United
States v. Bates, 2014 WL 5421846,
2014 U.S. App. LEXIS 20564 (Oct. 27,
2014), to vacate the child pornography
conviction of Cameron Dean Bates, who
had been convicted by a Southern District
of Florida jury and sentenced to 240
months in federal prison for receiving,
accessing, distributing, and possessing
child pornography. The majority of the
panel concluded that the trial judge erred
by denying Bates’ request that potential
jurors be questioned about their attitudes
concerning homosexuality, and that this
was not harmless error in light of the
evidence the government proposed to
introduce in the case. Dissenting Judge
Robert L. Hinkle, a district court judge
from a different district in Florida,
contended that the error was harmless
because of the overwhelming evidence
against Bates, but the majority clearly
thought this wasn’t the point; that a
criminal defendant is entitled to a fair
trial before an impartial jury.
The opinion for the court by Judge
Beverly Baldwin Martin does not say
how the government got wind of Bates’s
activities, but investigators enlisted
Bates’s internet service providers to help
them trace downloads of child porn to
his computer, then obtained a search
warrant and did a forensic investigation
that yielded not only evidence concerning
child pornography but also evidence of
Bates’s homosexual activities with other
adults and occasional cross-dressing,
which the government intended to
introduce at trial (and did, over Bates’s
objections) in countering Bates’s
argument that somebody else was
using his laptop to access child porn.
Bates sought voir dire about the jurors’
attitudes towards homosexuality, but the
obtuse district judge said that he could
not see how that had anything to do with
the case, and refused the request, just as
he overruled Bates’s motions to exclude
the evidence going to his homosexual
activities.
“In this case,” wrote Martin, “the
District Court optimistically declared
that our society is beyond prejudice on
the basis of a person’s sexual orientation.
While we admire the District Court’s
optimism, it remains the case that ‘there
will be, on virtually every jury, people
who would find the lifestyle and sexual
preferences of a homosexual or bisexual
person offensive’ [citing numerous
cases]. We have no doubt that evidence
of Mr. Bates’s sexual activity and
gender non-conforming conduct had the
potential to unfairly prejudice jurors.”
As to the District Court’s puzzlement
about how this had anything to do with
the case, the court of appeals majority
found that Bates’s sexual activities
“became ‘inextricably bound up’ with
the issues to be resolved at trial. This
fact should have been obvious to the
District Court given its ruling before
voir dire that it did not intend to exclude
the sexually explicit images of Mr. Bates
found on his computer. And if it wasn’t
obvious to the District Court before jury
selection began, it should have become
obvious when Mr. Bates requested the
Court to explore the potential prejudice
before striking jurors. When the District
Court expressed confusion about what
homosexuality ‘has to do with this case,’
the government explained that it intended
to introduce ‘pictures and items from the
defendant’s computer to show that he
was engaged in homosexual activity. . .
which goes to show that he wouldn’t be
sharing his computer with other people.”
The court held that the government
failed in its burden to prove harmless
error. “Because the District Court
refused to ask any questions at all
about prejudice on the basis of sexual
preferences, we have no way to discern
whether the jury was biased against
Mr. Bates for that reason,” wrote Judge
Martin. “Because the jurors had no
reason to know that issues about samesex sexual practices would be part of the
evidence at trial, they had no reason to
offer up prejudices they might harbor
on that basis when the District Court
posed its general questions.” The court
also expressed lack of confidence that
the trial judge’s limiting instructions to
the jurors cautioning them about the use
of the evidence would have adequately
463 Lesbian / Gay Law Notes November 2014
cured the “constitutional deficiencies in
this voir dire process.”
“In light of the quantity and the
explicit content of the evidence about
Mr. Bates’s sexuality paraded before
the jury,” wrote Martin, “the risk that
latent, undiscovered prejudices may have
inflamed is great. Indeed, it seems that
the government expected the evidence
to have exactly that effect at the time it
was introduced. After asking one of Mr.
Bates’s family members whether she
knew about his same-sex sexual activities
and gender non-conforming behavior, the
government followed up with this telling
question: ‘And would that have affected
your opinion of him?’ We can think of no
reason to ask this question but to suggest
that, perhaps, it should.”
“If Mr. Bates is to be convicted,”
Martin continued, “we must have
sufficient assurances that it is done by a
fair and impartial jury of his peers. Here,
the risk that Mr. Bates was convicted
by jurors who cared less about the
charged criminal conduct than about
his perfectly legal sexual activity, is
intolerably high. His convictions must
therefore be vacated, and we remand this
case for further proceedings.” The court
also commented that the trial court may
have given Bates inadequate time prior
to his trial to prepare his defense, as the
government added new charges shortly
before trial, and concluded, “we hope
and expect that the District Court will be
mindful of his need for expert assistance
and adequate time to prepare for trial.”
Judge Hinkle’s harmless error dissent
ended on a defensive note. “One is left
asking why, if the evidence of guilt was as
clear as I believe it was, the government
asked improper, prejudicial questions? A
possible inference is that the government
thought a conviction was not certain. A
possible inference is that the government
thought at least some jurors were biased
and that appealing to that bias would
help bring about a conviction. Why else
would the government do it? I am left in
the åthe government was wrong – that
it didn’t need the prejudicial impact
it improperly pursued. It is with no
enthusiasm that I dissent.” ■
Federal Judge Dismisses Transgender Inmate’s Suit for
Medical Care for PLRA for Non-Exhaustion, Adopting
Gratuitously Transphobic Magistrate Decision
R
onny Darnell (also known as
Phoebe Haillwell) tried for six
years to obtain transgender
services and treatment in the Oklahoma
prison system before filing her pro se
federal lawsuit. She sought treatment
for her male-to-female Gender Identity
Disorder [or “GID,” in the Court’s preDMS-V usage], including hormone
replacement, access to a transgender
specialist, permission to share a cell
“with another transgender offender,” the
“Real Life Experience of living life as a
woman,” sex reassignment surgery, and
other accommodations for her serious
medical needs. She sought declaratory
and injunctive relief, as well as damages.
Magistrate Judge Charles B. Goodwin
issued a Report and Recommendation
(R&R) dismissing the action under the
Prison Litigation Reform Act, (“PLRA,”
codified in pertinent part at 42 U .S.C.
§ 1997e(a)), for failure to exhaust
administrative remedies, in Darnell v.
Jones, 2014 WL 4792144 (W.D. Okla.,
Sept. 24, 2014). It was undisputed that
Darnell filed multiple grievances over
the years. Initially, a prison psychologist
told her that “[n]o one is being treated
in DOC for this,” as far as he knew,
and that she was “not to ask about this
again.” Her appeal to the Health Services
Administrator was likewise denied. She
sent a final appeal to the Oklahoma
Department’s Administrative Review
Authority (“ARA”), when it should have
been sent to the Chief Medical Officer
(“CMO”).
According to the R & R, the final
appeal was returned to Darnell for
proper resubmission to the CMO; and
also, per Darnell’s Complaint, it was
faxed to the CMO by the ARA. Darnell
did not resubmit. Instead, she filed
another grievance, complaining that her
appeal was misrouted. The R & R found
that it was Darnell’s sole responsibility
to properly and fully exhaust under
the PLRA and that she had not done
so, ruling that it was immaterial: (1)
that the CMO actually received the
grievance appeal (because it was not
sent by Darnell); or (2) that Darnell had
grieved the misrouting (because she
never appealed the failure to decide that
grievance). Thus, under Supreme Court
precedent, Woodford v. Ngo, 548 U.S.
81, 90, 93–103 (2006); Porter v. Nussle,
534 U.S. 516, 532, (2002), Darnell had
not exhausted. The R & R found that
“it is the inmate’s responsibility, rather
than the prison officials’, to submit a
grievance appeal in accordance with
applicable requirements.” Corrections
had no duty to assist her, so long as they
did not affirmatively prevent her from
appealing.
[Writer’s Note: This is perhaps the
most extreme application of PLRA
exhaustion this writer has found. The
“are limited” by the PLRA absent “a
prior showing of physical injury.” There
is no discussion of GID as presenting a
serious medical need for treatment, or
of Darnell’s medical history, or of the
physical consequences that attend the
absence of proper hormone prescription.
On injunctive relief, the R & R
cites boilerplate standards. Without
discussing any medical evidence, it
found that Darnell had not shown “a
substantial likelihood of success on
the merits” to justify a preliminary
injunction. Then, relying on the PLRA’s
requirement that courts give “substantial
weight to the adverse impact on public
safety and on prison operation” – see
18 U.S.C. § 3626(a)(2) – and deference
Corrections had no duty to assist her, so long as they
did not affirmatively prevent her from appealing.
extensive R & R considered at least four
affidavits from prison defendants about
exhaustion, including one from the Chief
Medical Officer, who was supposed to
receive (and actually did receive) and rule
on the grievance. One is reminded of the
supposedly lighthearted exchange about
bureaucratic rigidity from the Wizard of
Oz: “Who rang that bell?” snapped the
gatekeeper to the Emerald City after
Dorothy pulled the bell cord, “can’t
you read the notice?”: “BELL OUT OF
ORDER, PLEASE KNOCK.” “Well,
that’s more like it,” he retorted after she
knocked, “now state your business.”]
The R & R did not stop there, but it
continued in dicta to address the merits.
Regarding damages, the R & R observed
that Darnell alleged that prison staff
members “are determined to make her life
‘a living Hell,’ by doing all that they can
to push her to the edge, to where she will
commit suicide.” In the same paragraph,
the R & R noted that Darnell’s damages
to prison administration under Turner v.
Safley, 482 U.S. 78, 84–86 (1987), the R
& R found that “the relief requested was
not consistent with the public interest.”
In fact, in Turner at 97-98, the Supreme
Court found that prisoners’ right to marry
trumped correctional administrative
interests. The R & R did not cite Estelle
v. Gamble, 429 U.S. 97, 104 (1976), on
treatment of prisoners’ serious medical
needs, or Farmer v. Brennan, 511 U.S.
825, 833 (1993), on safety for transgender
inmates.
The unnecessary discussion of the
merits, at best weak, was gratuitous
transphobia. Chief Judge Vicki MilesLaGrange adopted the R & R as “wellreasoned.” – William J. Rold
William J. Rold is a civil rights
attorney in NYC and a former judge.
He previously represented the ABA
on the National Commission for
Correctional Health Care.
November 2014 Lesbian / Gay Law Notes 464
Student Makes First Amendment Challenge Based on
Professor’s Criticism of Her Paper on Lesbianism
O
n September 29, 2014, in
Pompeo v. Board of Regents of
the University of New Mexico,
Civ. No. 13-0833, the Chief U.S. District
Judge M. Christina Armijo of the U.S.
District Court for the District of New
Mexico denied the University’s motion
to dismiss and allowed a student to
proceed with her First Amendment
challenge to a professor’s harsh
criticism of her paper on lesbianism.
The student, Monica Pompeo, claims
her First Amendment rights were
violated when her teacher pressured her
to drop a course after she submitted a
homophobic paper about a film.
The University offered a class on
“Images of Women: From Icons to
Iconoclasts” and Ms. Pompeo was a
student in the class. Professor Hinkley
was the course instructor. According to
the syllabus, the subject matter of the
class was meant to spark “incendiary”
class discussions. The syllabus also
indicated that no one in the class
necessarily needed to agree with the
positions taken in class. The class was
intended to encourage discussion and
have students hash out their differences
on the course materials.
In this case, the assignment at issue is
one that involved viewing a lesbian film
called Desert Hearts. This 1985 groundbreaking film features a lesbian love
story where both protagonists have a
happy ending. It was truly the first of its
kind. Pompeo’s four-page paper on the
film criticized both lesbianism as well
as the characters that were portrayed in
the film.
Professor Hinkley began to read
Pompeo’s paper and instead of supporting
the spirit of her syllabus, which indicated
all opinions are welcome, Hinkley
refused to finish reading Pompeo’s
paper. She felt that Pompeo’s paper and
views were inflammatory and offensive.
Professor Hinkley only made it through
page two and returned Pompeo’s paper
without giving her a grade. Professor
Hinkley met with Pompeo and accused
her of using “hate speech” in her paper.
Professor Hinkley then told Pompeo
that it would be best if Pompeo dropped
the class. Since Professor Hinkley was
so hostile to Pompeo and would not
give her a grade on the paper, Pompeo
dropped the class.
The District Court analyzed Pompeo’s
First Amendment claim by examining
three questions. The court first needed
to determine whether Pompeo’s speech
is protected speech. The court then
had to decide in what type of forum
did Pompeo’s speech occur. Lastly, the
court looked at whether the justifications
for restricting speech proffered by the
University satisfy the First Amendment
standard applicable in this case. The
first two questions are not at issue in
this case. The University conceded that
Pompeo’s speech is protected by the
First Amendment and both parties agree
that one of the University’s classrooms
is not a public forum. See, Axson-Flynn
v. Johnson, 356 F.3d 1277, 1285 (10th
Cir. 2004).
The third question is where the
argument begins. The University argues
that they can restrict Pompeo’s speech
so long as the restrictions are reasonably
related to legitimate educational
concerns. Pompeo does not disagree,
but she believes that the University
needs to allow different viewpoints to be
expressed. Pompeo argues that instead
the University is using restricted speech
to discriminate against those with
alternate viewpoints. The court would
have adopted Pompeo’s position about
viewpoint discrimination, but the forum
in this case was a school environment.
The court had to yield to a Court of
Appeals decision which concluded
that viewpoint-based restrictions on a
student’s speech are allowed, but only if
they are reasonably related to legitimate
pedagogical concerns.
This case
does not require viewpoint neutrality.
Fleming v. Jefferson Sch. Dist. R-1, 298
F.3d 918 (10th Cir. 2002).
Pompeo’s First Amendment challenge
stems from the conflict between the
syllabus, which implied all views were
465 Lesbian / Gay Law Notes November 2014
welcome in the class, and Professor
Hinkley’s position (as characterized by
the plaintiff) that no views but those with
which she agrees are welcome in class.
This case is thus different from Brown v.
Li, 308 F.3d 939 (9th Cir. 2002), in which
a student was given reasonable standards
for accomplishing an assignment and
consciously disregarded them. The
syllabus also described the class and
said it “was designed for older students,
who could be expected to have the
emotional and intellectual maturity to
deal with controversial or even invidious
opinions.”
The court questions what ultimately
is the bottom line in this case, which is
whether the University has a legitimate
educational interest in encouraging
students to engage in controversial
speech and then not grade a student
who does just that. Pompeo thought she
could speak her mind in her paper, but
then Professor Hinkley would not give
her a grade and went so far as to tell
her to drop the class. Pompeo’s paper
expressed views about homosexuality
that Professor Hinkley obviously found
offensive. The University argued that
Professor Hinkley’s finding Pompeo’s
views offensive does not deprive her of
First Amendment protection of those
views. Pompeo demonstrated a plausible
case that Professor Hinkley criticized
her simply because she disagreed
with Pompeo and not because she had
educational concerns for restricting
Pompeo’s speech. The court must
always examine whether the educational
concern was pretext for discrimination.
See Axson-Flynn, 356 F.3d at 1292-93.
One of the other defendants in this
case is Professor Hinkley’s supervisor,
Dever. Pompeo was not only pushed
by Hinkley to drop the class. Dever
warned Pompeo that she would suffer
“consequences” if she kept discussing
lesbianism as “barren.”
continued on page 480
MARRIAGE EQUALITY
U.S. DEPARTMENT OF JUSTICE
– As marriage equality rulings have
been implemented with the Supreme
Court’s denial of certiorari petitions
and stay petitions and some states
have abandoned further appeals and
complied with lower court decisions,
the Department of Justice has issued
announcements of federal recognition
of marriages performed or recognized
in those states. Although these formal
announcements are technically not
necessary for the married couples
involved to claim federal recognition,
they have provided a clear signal to
the federal bureaucracy about which
states allow same-sex couples to marry
and which states recognize validly
contracted same-sex marriages. This
information is necessary to process
various federal benefit claims and
administer various federal laws and
regulations, perhaps most importantly
under the Social Security Act, Veterans
benefits laws, and the Family and
Medical Leave Act. As of the end of
October, the Justice Department had
made announcements concerning the
states covered by the Supreme Court’s
cert denials, several other states in
those circuits where marriage equality
had gone into effect, and states in the
9th Circuit covered by that circuit’s
ruling the day after the cert denials or
in subsequent litigation where appeals
were not taken. The most recent
announcement, on October 25, added
Alaska, Arizona, Idaho, North Carolina,
West Virginia and Wyoming to the
list. Attorney General Eric Holder had
previously announced on October 17
that the government was recognizing
same-sex marriages in Utah, Oklahoma,
Colorado, Virginia, Indiana, Wisconsin,
and Nevada.
5TH CIRCUIT COURT OF APPEALS
– TEXAS AND LOUISIANA – The
U.S. Court of Appeals for 5th Circuit
issued a notice on October 27 that it had
tentatively scheduled oral arguments
in the pending marriage equality cases
from Texas and Louisiana to take place
during the week of January 5, 2015,
noting as well that the court’s hearings
that week will begin on Tuesday, January
6. The notice caused disappointment to
some marriage equality advocates, who
had assumed that the court’s decision
to consolidate the Texas and Louisiana
cases for consideration and its adoption
of an abbreviated briefing schedule for
the Louisiana case (which was decided
by the District Court on September 3)
signaled a willingness to “fast-track”
these appeals, with the expectation
that the cases would be argued during
November or December. Those familiar
with the deliberative pace at which
the courts of appeals usually move,
however, would probably consider
it to be a relatively rapid pace for a
September 3 ruling to receive a hearing
before a three-judge panel by the first
week in January. The Louisiana case
is Robicheaux v. Caldwell, 2014 U.S.
Dist. LEXIS 122528, 2014 WL 4347099
(E.D. La., Sept. 3, 2014)(rejecting
constitutional challenge to Louisiana’s
same-sex marriage ban. The Texas case
is De Leon v. Perry, 975 F.Supp.2d
632 (W.D. Tex., Feb. 26, 2014)(ruling
that Texas’ same-sex marriage ban is
unconstitutional). Lambda Legal has
joined local Louisiana counsel in the
appeal of the Louisiana case, which is
actually a combination of several cases.
9TH CIRCUIT COURT OF APPEALS
– HAWAII – On October 10, the
same three-judge panel that had days
earlier ruled that the bans on samesex marriage in Nevada and Idaho
were unconstitutional issued a brief
memorandum decision in Jackson
v. Abercrombie, 2014 WL 5088199,
2014 U.S. App. LEXIS 19641 (9th
Cir.), finding that the pending appeal
of a district court order from Hawaii
rejecting a marriage equality claim had
been mooted by the state’s enactment
of the Marriage Equality Act of 2013
(MEA). “Contrary to Intervenor
Hawai’i Family Forum’s claim, the
mere fact that somebody has challenged
the MEA in independent litigation
does not defeat mootness,” wrote the
court. Furthermore, the court found
that it was appropriate to vacate the
district court’s decision in light of the
9th Circuit’s decision in Latta v. Otter
on October 7. Thus, the court vacated
the district court’s ruling and remanded
with instructions to dismiss the case
as moot, and denied HFF’s motion
to dismiss Governor Abercrombie’s
appeal for lack of appellate standing
as moot as well. The pending suit in
state court by HFF seeks a ruling that
the legislature did not have authority to
enact the MEA because of the state’s
Marriage Amendment that was enacted
in 1997. That suit stands little chance
of success, because the amendment
provides that only the legislature is
authorized to determine whether samesex couples can marry, and that is just
what the legislature did when it passed
the MEA.
10TH CIRCUIT COURT OF APPEALS
– Oklahoma – Local news sources in
Oklahoma reported that the 10th Circuit
has ordered that Tulsa County pay the
legal fees incurred by Mary and Sharon
Bishop-Baldwin in their successful
litigation to get a marriage license,
which had culminated with the Supreme
Court’s denial of the state’s petition for
certiorari from a ruling by the 10th
Circuit striking down the state’s ban on
same-sex marriage. Bishop v. Smith, 760
F.3d 1070 (10th Cir. 2014), cert. denied
2014 WL 3854318 (Oct. 6, 2014). The
matter will be remanded to the District
Court to determine an appropriate fee
award. Tulsa County Court Clerk Sally
Howe Smith, the named defendant in
the case, contended that there should
be no fee award because the county was
merely upholding the state constitution
by refusing to issue marriage licenses to
same-sex couples.
November 2014 Lesbian / Gay Law Notes 466
MARRIAGE EQUALITY
DISTRICT OF COLUMBIA – Lambda
Legal and pro bono attorneys from
Dechert LLP have filed suit against
the Social Security Administration
on behalf of a Texas woman who
had married her long-time same-sex
partner in Massachusetts prior to the
partner’s death, but who is being denied
appropriate spousal benefits under the
Social Security Act because Texas, their
state of domicile, did not recognize the
marriage. Murphy v. Colvin (D.D.C.,
filed Oct. 22, 2014). The complaint
argues that under the Supreme Court’s
holding in U.S. v. Windsor, the Social
Security Administration’s refusal to
recognize the marriage violates the
Due Process, Equal Protection and
Privileges and Immunities entitlements
of same-sex couples. Indeed, the
statutory and regulatory provisions
being challenged are just particularized
instances of the stricken provision from
the Defense of Marriage Act, at least in
their application. What distinguishes
them is that they long pre-date the issue
of same-sex marriage so it would be
hard to argue that anti-gay animus had
anything to do with Congress’s original
decision to provide that eligibility for
Social Security survivor’s benefits be
determined with respect to the law
of the domicile of the deceased at the
time of death; now they have the effect
of disqualifying same-sex surviving
spouses who were lawfully married
out-of-state. What would be surprising
would be for the Obama Administration
to opposed this lawsuit (and similar
actions challenging the same kind of
provision in the context of Veterans
Benefits) in light of its position of
refusing to defend Section 3 of DOMA.
Lambda Legal attorneys working on the
case are Susan L. Sommer and Karen L.
Loewy. Dechert pro bono counsel are
Dennis H. Hranitzky, Will W. Sachse,
and Jason O. Billy.
ARKANSAS – The Arkansas Supreme
Court will hear argument on November
20 in the state’s appeal of Wright v.
State of Arkansas, Case No: 60CV-132662 (Ark. Cir. Ct., Pulaski Co., May 9,
2014), in which Pulaski County Circuit
Judge Chris Piazza ruled that the state’s
same-sex marriage ban violates the 14th
Amendment. Although some same-sex
couples married in the few days after
Judge Piazza’s decision, a stay pending
appeal by the state supreme court put
a halt to marriages and generated lots
of pressure for an expedited hearing.
In the event, the high court dragged its
feet so Arkansas, which had seemed in
line to be one of the earlier marriage
equality states post-Windsor, may end
up bringing up the rear guard depending
how fast the court moves after hearing
arguments. Since the case is being
litigated as a 14th Amendment challenge,
the losing party could file a petition
for certiorari with the U.S. Supreme
Court. The Arkansas Supreme Court
has actually been rather progressive on
gay issues over the past few decades,
having invalidated the state’s sodomy
law and struck down restrictions on gay
people adopting children or serving as
foster parents. One suspects the court
delayed scheduling oral arguments
while waiting to see what the U.S.
Supreme Court did with the petitions
for certiorari in marriage equality cases
from three federal circuits, all of which
were denied on October 6.
IDAHO – A gay couple who had
obtained a marriage license in Coeur
d’Alene were turned away by the
Hitching Post, a wedding chapel
across the street from the courthouse,
as the proprietors, Donald and Evelyn
Knapp, both ministers ordained in the
Foursquare Gospel church, refused to
have such marriages performed on their
premises. The chapel’s proprietors had
previously been told by city officials
that as long as they were operating a
for-profit wedding chapel, they were
subject to the city’s non-discrimination
law, which bars discrimination because
467 Lesbian / Gay Law Notes November 2014
of sexual orientation. Allegedly fearing
their possible prosecution under that
law, they sought assistance from
Alliance Defending Freedom, the antigay religious litigation group, which
preemptively filed suit in the U.S.
District Court for Idaho, Knapp v. City
of Coeur d’Alene, claiming that any
attempt to hold the Knapps responsible
for their discrimination would be a
violation of their First Amendment
rights. But the controversy was mooted
when city officials determined that
because the Knapps are ministers and
they had revised the Hitching Post’s
website to indicate that they only
performed religious weddings, the
city would regard them as a religious
corporation exempt from compliance
with the law. But it was clear that
ADF is spoiling for a fight in the new
marriage equality jurisdictions, and
is actively seeking to take on cases of
small business owners “persecuted”
for discriminating against same-sex
couples. * * * Resolving an issue that
had received national press attention,
the Idaho State Veterans Cemetery
notified Madelynn Lee Taylor that she
can be buried next to her deceased
spouse, Navy veteran Jean Mixner.
Veterans cemeteries allow for interment
of non-veteran spouses of veterans, but
as long as Idaho was not recognizing
same-sex marriages, the cemetery
told Taylor, she could not be interred
next to her recently deceased spouse.
National Center for Lesbian Rights was
representing her as part of the legal
challenge to Idaho’s ban before the 9th
Circuit, and NCLR reported that shortly
after the 9th Circuit’s ruling went into
effect, the cemetery contacted Taylor,
who promptly went to the cemetery
office to arrange to have her wife’s
ashes interred. Los Angeles Times, Oct.
23.
MISSISSIPPI – A team of pro bono
lawyers from New York’s Paul Weiss
Rifkind Wharton & Garrison LLP,
MARRIAGE / CIVIL LITIGATION
led by Roberta Kaplan (who was lead
counsel for Edith Windsor in U.S.
v. Windsor), have joined with North
Carolina lawyer Diane E. Walton and
Mississippi lawyers Robert B. McDuff,
Sibyl C. Byrd, Jacob W. Howard, Rita
Nahlik Silim and Dianne Herman Ellis
to file a federal marriage equality case in
the U.S. District Court for the Southern
District of Mississippi, Campaign for
Southern Equality v. Bryant, Civil
Action No. 3:14cv818 CWR-LRA.
District Judge Carlton W. Reeves
responded favorably to the plaintiffs’
request to expedite proceeding, hearing
initial arguments on October 22 by
teleconference on the plaintiffs’ motion
for preliminary injunction, giving
defendants until Nov. 10 to respond to
plaintiffs’ motion papers and setting a
hearing for Nov. 12. Thus, it is possible
that there will be a decision on the
motion during November.
MISSOURI – In Lawson v. Kelly, No.
4:14-cv-00622 (W.D. Mo.), a pending
marriage equality case, the plaintiffs
withdrew their request for oral argument
on a motion for preliminary injunction,
asking the court instead to rule based
on the papers filed by the parties.
They represented to the court that the
defendant was not opposed to the court
ruling based on the filings, and noted
that the defendant had not filed any
opposition to the plaintiffs’ motion for
summary judgment, although the time
for such a filing had long passed. The
plaintiffs are represented by attorneys
with the ACLU of Missouri Foundation.
Missouri is in the 8th Circuit, where
there is a pre-Windsor court of appeals
decision, Citizens for Equal Protection
v. Bruning, 455 F.3d 859 (8th Cir. 2006),
rejecting a challenge to the state’s samesex marriage ban, arguably binding on
the trial judge unless he could find
it somehow either distinguishable or
superseded by Windsor. As reported
above, the state has declined to
appeal a ruling by a state court judge
that Missouri must recognize samesex marriages performed in other
jurisdictions.
MONTANA – The ACLU of Montana
filed a motion for summary judgment
in Rolando v. Fox, pending before U.S.
District Judge Brian Morris, on October
15, arguing that the recent 9th Circuit
ruling in Latta v. Otter, binding on
Montana, would justify a quick grant
of summary judgment in this marriage
equality case that was filed on May
21, 2014. In a brief accompanying the
motion, plaintiffs’ counsel pointed out
that federal district judges in two other
states, Alaska and Arizona, had already
acknowledged the binding force of
Latta v. Otter, and that the arguments
initially made by the state of Montana
in opposition to this lawsuit did not raise
any new points that had not already
been rejected in prior marriage equality
litigation. As there were no factual
disputes, argued plaintiffs, the case
could be quickly resolved as a matter of
law by ordering the state not to enforce
the Montana Marriage Amendment or
statutory provisions forbidding samesex marriages. Judge Morris set a
hearing for the motion on November 20.
SOUTH DAKOTA – U.S. District Judge
Karen Schreier heard oral argument
in the pending marriage equality case,
Rosenbrahn v. Daugaard, on October 17.
As South Dakota is in the 8th Circuit, the
plaintiffs have to contend with the court
of appeals ruling in Citizens for Equal
Protection v. Bruning, a pre-Windsor
case rejecting a constitutional attack on
the Nebraska ban on same-sex marriage,
which Assistant Attorney General Jeff
Hallem relies upon in his motion to
dismiss the case as failing to state a legal
claim. Judge Schreier ended the hourlong argument stating that she would
“issue a written opinion soon.” Hallem
argued that Schreier was bound to follow
the Bruning precedent, as 8th Circuit
procedure binds all panels of the circuit
until a precedent is overruled en banc or
by the Supreme Court. Attorney for the
plaintiffs, Joshua Newville, pointed out
that Bruning was not a right to marry
case, raising the constitutionality of
Nebraska’s ban obliquely, and he also
suggested that legal developments since
2006, especially U.S. v. Windsor, would
undermine any precedential weight of
Bruning. The Rosenbrahn complaint
also raises a legal theory definitely not
addressed in Bruning - that a state’s ban
on recognition of out-of-state marriages
violates the 14th Amendment’s
Privileges and Immunity Clause by
burdening the right to travel between the
states. Attorney General Marty Jackley
stated that however Schreier ruled the
case would go to the 8th Circuit, and
then likely to the Supreme Court, so
marriage equality was not expected to
come to South Dakota soon. Sioux Falls
Argus Leader, Oct. 18.
WISCONSIN – A week after the
Supreme Court refused to hear the state’s
appeal from the 7th Circuit’s decision
affirming a district court ruling striking
down the ban on same-sex marriage,
Governor Scott Walker issued an order
on October 13 directing that state
agencies honor the roughly 500 samesex marriages that were performed after
the district court ruling but prior to the
issuance of a stay in the case by the 7th
Circuit when the appeal was pending.
Milwaukee Journal Sentinel, Oct. 14.
The order also directed state agencies to
treat same-sex and different-sex couples
the same for issuing marriage licenses
and “determining the rights, protection,
obligations or benefits of marriage.”
CIVIL LITIGATION NOTES
SUPREME COURT OF THE UNITED
STATES – NEW YORK – On October
6 the Supreme Court denied a petition
November 2014 Lesbian / Gay Law Notes 468
CIVIL LITIGATION
for certiorari in Ranftle v. Leiby, 2014
WL 3853253, declining to review the
New York Court of Appeals ruling in
Matter of H. Kenneth Raftle, Deceased,
22 N.Y.3d 1146, 984 N.Y.S.2d 287
(2014). The case involved the challenge
to the will of a married gay man by
his surviving brothers, who argued
that the man was actually domiciled in
Florida even though he was physically
present in New York when he died, and
so the Surrogate’s Court in New York
County was obligated to treat his samesex marriage, which was recognized
under New York law, as a nullity. The
Surrogate’s Court had denied a petition
by the brothers to vacate probate of
the will. They had argued that when
an unmarried person dies and his
will is offered for probate, New York
law requires notification of surviving
siblings, who are entitled to participate
in the proceeding. But the New York
County Surrogate at the time, Kristin
Booth Glen, had denied their petition
upon her finding that the marriage was
recognized. The Appellate Division
had affirmed that ruling, in In re
Kenneth Ranftle, 108 A.D. 3d 437, 969
N.Y.S.2d 48 (1st Dept. 2013). Erica
Bell of Weiss, Buell & Bell represents
the estate and the surviving spouse, J.
Craig Leiby, and Lambda Legal joined
in the representation when the case went
to the Court of Appeals, with Susan L.
Sommer and Keith Hammeran joining
the legal team. Although Ranftle and
Leiby were New Yorkers, Ranftle also
owned a house in Fort Lauderdale,
and changed his domicile to Florida
for tax reasons, commuting regularly
between Florida and New York, but
maintaining residence in Florida for
enough days each year to claim that
state as his legal residence. In March
2008 Ranftle was diagnosed in New
York with cancer, and never returned
to Florida after receiving the diagnosis.
After an appellate division decision led
Governor David Paterson to direct New
York state agencies to recognize samesex marriages from other jurisdictions,
Leiby and Ranftle married in Montreal,
where they also owned an apartment.
Ranftle executed a will shortly after the
marriage, and passed away suddenly
from a heart attack a few months later
in November. His diary showed that he
spent only 13 days in Florida in 2008, all
prior to his cancer diagnosis in March.
Judge Glen found that Ranftle had
changed his domicile back to New York,
so the marriage should be recognized,
rejecting the brothers’ petition. The
Supreme Court refused to review the
Court of Appeals’ decision affirming
the holding of the Appellate Division
and Judge Glen. The case demonstrates
the importance of the continuing a
battle to achieve nationwide recognition
for same-sex marriages.
U.S. OFFICE OF SPECIAL COUNSEL –
The Office of Special Counsel announced
on October 23 that the Department of
the Army had discriminated against a
transgender civilian worker who was
in the process of transitioning from
male to female gender expression. The
Office found that Tamara Lusardi’s
supervisors at the U.S. Army Aviation
and Missile Research, Development
and Engineering Center in Alabama
had “improperly restricted her restroom
usage, repeatedly referred to her by her
birth name and male pronouns, and
excessively monitored her conversations
with co-workers,” according to an
October 23 article on the National
Law Journal’s website. The decision
found that the conduct was “sufficiently
frequent, pervasive, and humiliating to
constitute discriminatory harassment.”
The Office found a violation of the Civil
Service Reform Act, which prohibits
discrimination in federal civil service
employment for conducted unrelated
to work performance. The Army has
agreed to provide workplace diversity
and sensitivity training with a specific
focus on LGBT individuals, and
restrictions on Lusardi’s restroom use
have been lifted. Lusardi is represented
469 Lesbian / Gay Law Notes November 2014
by the Transgender Law Center, which
is also representing her in a separate
proceeding pending before the EEOC
with pro bono assistance from Lieff
Cabraser Heimann & Bernstein. The
EEOC adopted the view that gender
identity discrimination violates Title
VII’s ban on sex discrimination in the
Macy case in 2012.
SEVENTH CIRCUIT COURT OF
APPEALS – The Equal Employment
Opportunity Commission (EEOC) has
filed an amicus brief in support of the
losing plaintiff’s motion for rehearing
in Muhammad v. Caterpillar, Inc.,
2014 WL 4418649 (Sept. 9, 2014), in
which a three-judge panel rejected the
plaintiff’s claim that he was subject to
sexual harassment in violation of Title
VII because of his perceived sexual
orientation, as reflected in homophobic
slurs employed by other employees
directed to him and about him. The
panel’s ruling had accepted the
commonplace holding among federal
circuit courts that discrimination
based on actual or perceived sexual
orientation is not actionable under Title
VII. The EEOC, seeking to expand
the jurisprudence under Title VII to
provide protection to transgender and
gay people, argues that the circuit
should adopt the reasoning of the recent
district court decision in TerVeer v.
Billington, 2014 WL 1280301 (D.D.C.
Mar. 31, 2014), where the court held
that a gay man could bring a Title
VII sex discrimination based on the
allegation that he was perceived by
his discriminatory supervisor as
failing to comply with male gender
role stereotypes solely because he is
gay. The BloombergBNA Daily Labor
Report, 198 DLR A-7 (10/14/2014),
reported that E. Pierce Blue, an attorney
advisor to EEOC Commissioner Chai
Feldblum, had told a symposium at the
University of Maryland Law School
that the EEOC’s amicus brief marked
the first attempt by the agency to
CIVIL LITIGATION
present its analysis of sexual orientation
claims to a federal court of appeals in a
pending case.
TH E
E Q UAL
EM PLOYM E NT
OPPORTUNITY COMMISSION –
EEOC Commissioner Chai Feldblum,
speaking at the Practicing Law Institute’s
Employment Law Institute 2014 on
October 20, said that charges of sexual
orientation discrimination and gender
identity discrimination received by the
EEOC had increased so dramatically
that the agency has created new codes to
identify those charges on intake forms,
GO for sexual orientation claims and
GT for gender identity claims. Although
Title VII of the Civil Rights Act of
1964 does not specifically mention
sexual orientation or gender identity
as forbidden grounds of employment
discrimination, the agency and some
courts have adopted an expansive
definition of “sex discrimination” to
find agency jurisdiction over such
cases, and is actively pushing to obtain
circuit court precedents adopting its
view. Commissioner Feldblum reported
that as of Sept. 18, 2014, the EEOC had
resolved 614 GO and GT charges during
calendar 2014, including “44 settlements
in optional mediation, 24 settlements in
the enforcement stage, 18 withdrawals
with benefits to the charging party, 11
cause findings, and three successful
conciliations,” according to a report in
204 Daily Lab. Rep. A-7, 10/22/2014.
Feldbum, the first openly lesbian or
gay EEOC Commissioner, was recently
confirmed for a second term after her
reappointment by President Obama.
DELAWARE – U.S. District Judge
Leonard P. Stark accepted Magistrate
Judge Fallon’s recommendation to grant
summary judgment to the defendant,
Perdue Farms Incorporate, which
had been sued for same-sex sexual
harassment by Marc E. Smith. Smith
v. Perdue Farms Incorporated, 2014
WL 4954472 (D. Del., Sept. 30, 2014)
(not reported in F.Supp.3d). Explaining
his decision, Judge Stark pointed out
that Smith had failed to provide any
evidence other than his belief that his
male harassers were gay, and thus failed
in his burden to plead a prima facie case
of sex discrimination. Smith had alleged
that he suffered unlawful retaliatory
discharge after he complained about
the harassment, but Stark approved the
magistrate’s finding that the company
had proffered a legitimate reason for
having discharged Smith, that he left
the plant without permission, which he
admitted was a terminable offense and
did not directly dispute. Judge Stark
also upheld the magistrate’s refusal
to allow Smith to add a hostile work
environment retaliation claim to the
case when it was first raised in response
to the defendant’s motion for summary
judgment, finding that this would be
prejudicial to the defendants, “who had
not obtained discovery about this claim.”
Stark concluded, “The Magistrate Judge
was correct to recognize Plaintiff’s
hostile work environment retaliation
claim as a new theory of liability, and
did not abuse her discretion in barring
Plaintiff from raising his claim.”
FLORIDA – She just keeps changing
her position. Florida Attorney General
Pam Bondi’s reaction to the U.S.
Supreme Court’s denial of petitions
for review of marriage equality rulings
from three circuits was to change her
position on how the issue should be
handled by the Florida courts. She
had been maintaining that the Florida
courts, where appeals are pending
from pro-marriage equality decisions
by several local trial judges, should
just put everything “on hold” until the
U.S. Supreme Court issues a ruling on
the merits. Now that this option seems
unlikely in the short term, she is pushing
for speed, petitioning the Third District
Court of Appeal to send the cases to the
Florida Supreme Court. But that Court
was unwilling to do so, especially since
the Florida Supreme Court has rejected
an attempt to “pass through” a marriage
equality case from the 2nd District. It
looks like the quickest solution for
Florida may come when the U.S. Court
of Appeals for the 11th Circuit finally
rules on the federal marriage equality
case now pending on review. One
suspects the Florida Supreme Court may
be playing a waiting game, hoping that
a federal marriage equality ruling will
end the possibility that the state judges
may have to rule on the question; since
they have to stand in retention elections
periodically, they would probably just as
soon that this cup passed them by.
GUAM – Controversy mounts as
the local prison system has refuse
to provide HIV-related treatment to
Keith Jermaine Garrido, the suspect
in a 2012 murder case, who has been
denied medication while subject to pretrial detention. Even though Magistrate
Judge Albert Tolentino issued an order
requiring that the prison “provide all
treatment for such a diagnosis and shall
ensure that Mr. Keith Jermaine Garrido
receives the medical treatment deemed
necessary by his treating physicians,”
the Department of Corrections takes
the position that he is not entitled to
medication at the government’s expense
because he’s merely a pre-trial detainee,
not an inmate. This flies counter to
a written legal opinion by Assistant
Attorney General David J. Highsmith,
issued in 2009, that the Department
of Correction must treat all those in
its custody equally as to medical care.
Garrido’s attorney, Stephen Hattori, said
he was considering seeking an “order
to show cause” against the Director of
the Department. Pacific Daily News,
October 17.
MICHIGAN
–
In
Denson
v.
Commissioner of Social Security,
2014 WL 4840753 (E.D. Mich., Sept.
November 2014 Lesbian / Gay Law Notes 470
CIVIL LITIGATION
28, 2004), an HIV-positive individual
achieved the rare feat of winning a
reversal of a denial of Social Security
disability benefits, as U.S. District
Judge Robert H. Cleland adopted a
report and recommendation by U.S.
Magistrate Judge Patricia T. Morris
that the plaintiff’s motion for summary
judgment be granted, defendant’s motion
denied, and the case be remanded for an
award of benefits. Judge Morris found
that the ALJ hearing the plaintiff’s
case had failed to apply the appropriate
analysis concerning claims based on
his HIV status and reaction to his HIV
medication. Rejecting the agency’s
argument that the ALJ had necessarily
found that the evidence fell short of
qualifying the statutory eligibility
requirements, the judge wrote, “In
fact, I suggest that the record clearly
establishes that both of the essential
elements of the HIV listing of section
14.08have been met. The record shows
documentation of the disease that meets
the Listing’s demands for laboratory
evidence with Plaintiff’s diagnosis
of HIV and his viral load HIV RNA
testing. It also shows at least one of
the other necessary conditions, section
14.08I, with Plaintiff’s hospitalization
for his diarrhea that lasted for over a
month, was resistant to treatment, and
that required intravenous hydration.”
The judge found that the ALJ’s failure
to apply the appropriate legal standard
was “dispositive” of plaintiff’s claim for
benefits. Persistence paid off for this
person living with HIV.
NEW YORK – The New York Post
and New York Daily News reported
that New York County Supreme Court
Justice Debra James had ruled against
a claim by the intestate heirs of film
producer Perry Moore, who died in
an apparent accidental drug overdose
in 2011 at age 39, that they were
entitled to half the value of the coop
apartment that Moore had purchased
together with his longtime partner, film
director Hunter Hill, in 2008. Moore’s
father, William Perry Moore II, asked
the court on behalf of the estate to
order Hill to pay half the apartment’s
worth to the estate or sell the unit and
divide the proceeds with the estate. In
rejecting this demand, according to the
newspaper report, Justice James wrote,
“Although no marital or other family
relationship is present in this case, such
is not essential for the existence of a
confidential relationship.” We have
been frustrated in attempting to locate
a copy of the opinion to ascertain the
basis on which the court concluded
that the claims of the intestate heirs
could be avoided in this case. Moore
died shortly after New York’s Marriage
Equality Law went into effect, and it
seems likely, since Moore and Hill
were “marriage equality activists”
according to the news reports, that they
would have married had Moore not
suddenly died.
OHIO – The Toledo Blade reported
on October 14 that despite the ban on
same-sex marriage in Ohio (currently
being challenged in the 6th Circuit
Court of Appeals), some trial judges
have been granting divorces to Ohio
same-sex couples who were married
in other jurisdictions. Some courts
insist that a couple whose marriage is
not recognized by the state can’t get a
divorce, while others, noting that the
federal government is recognizing
those marriages for many reasons, have
taken the pragmatic view that Ohio
residents who want to terminate their
same-sex marriages should be able to
do so. “The differing decisions across
the state create a patchwork-approach to
interpreting the law that varies countyby-county, judge-by-judge,” wrote
Vanessa McCray. She reported that
some judges have specifically relied on
the Constitution’s Full Faith and Credit
Clause to find that such marriages
must be recognized.
The article,
reflecting lots of interviews with judges
471 Lesbian / Gay Law Notes November 2014
and matrimonial lawyers, provides a
county-by-county breakdown of the
situation for several Ohio counties.
PENNSYLVANIA – U.S. District Judge
Arthur J. Schwab denied a motion by
the government to dismiss a Title VII
constructive discharge case brought by
a former I.R.S. employee, but granted
a motion to transfer the case to Florida
on venue grounds. Tate v. Lew, 2014
WL 5450121 (W.D. Pa., Oct. 24, 2014).
Gregory Tate, who was employed at
the I.R.S. office in Ocala, Florida,
alleged that when he returned to work
after open heart surgery, his supervisor
subjected him to “continuous, severe,
and pervasive sexual harassment
based upon his gender and sexual
orientation.” When he reported this to
a regional supervisor, it was suggested
that he seek a “hardship transfer” to
the Pennsylvania office and that the
agency would make its “best efforts”
to find him a job in another field
office. He moved to Pennsylvania,
but was not offered another placement
by I.R.S. He alleges that he “had to
choose between returning to his job in
Ocala, Florida, or resign,” wrote Judge
Schwab, so he resigned and filed this
discrimination claim in the Western
District of Pennsylvania. The court
did not question that the complaint
adequately alleged facts supporting
a Title VII sex discrimination claim,
but found that venue was not proper
in Pennsylvania, since all the relevant
facts and employment files emanate
from the Ocala office, thus the transfer
of the case to Florida.
TENNESSEE – After Angela Wolf
showed up at a company picnic with
her same-sex partner, she alleges, her
supervisor “treated her differently
from male employees, made demeaning
comments about her, talked to coworkers about her, and gave her written
warning about alleged misconduct
CIVIL / CRIMINAL LITIGATION
when he did not give such warnings
to her male and female co-workers.”
She alleged that her complaints to the
Human Resources Department resulted
in a retaliatory discharge. U.S. District
Judge Todd J. Campbell granted
the employer’s motion for summary
judgment and dismissed Wolf’s Title
VII discrimination and retaliation suit
in Wolf v. Linatex Corp. of America,
2014 U.S. Dist. LEXIS 153132 (Oct. 29,
2014). Wolf had alleged discrimination
because of gender and unlawful
retaliation, but Judge Campbell found
that her factual allegations pointed to a
sexual orientation discrimination claim.
She denied that she was asserting a
sexual orientation discrimination claim,
but Campbell concluded that she was
not alleging discrimination because
of gender and thus had not stated
a discrimination claim. He further
found that because she alleged that the
employer failed to give warnings both
to other male and female employees, she
was claiming discrimination against
her but not sex discrimination. As to
retaliation, he found that she had not
engaged in statutorily protected conduct
when she filed her HR complaint, so the
resulting discharge did not violate Title
VII. Campbell is clearly out of sync
with the developing trend at the EEOC
and in other district courts to see sexual
orientation discrimination as a form of
sex discrimination and thus actionable
under Title VII. Tennessee lacks a
statute banning sexual orientation
discrimination.
VERMONT – A lesbian couple residing
in Addison, Vermont, emerged with their
tort and discrimination lawsuit mainly
intact after U.S. District Judge Geoffrey
W. Crawford ruled on various motions
in Ernst and Supeno v. Kauffman,
2014 WL 4922642, 2014 U.S. Dist.
LEXIS 141394 (D. Vt., Sept. 30, 2014).
Plaintiffs Barbara Ernst and Barbara
Supeno have taken an active role in
village affairs and have managed to
alienate some of their neighbors as well
as Jeff Kauffman, chair of the Addison
Selectboard. In this lawsuit they assert
defamation claims, sexual orientation
discrimination claims, and interference
with contractual relations claims
against Kauffman and several others,
some stemming from the circulation
in town of an “anonymous” letter that
the plaintiffs attribute to Kauffman
and some others, which made a variety
of facially defamatory claims about
the plaintiffs and portions of which
were read aloud at a public hearing,
others stemming from what plaintiffs
allege are discriminatory actions by the
Selectboard and other local authorities,
as well as an anonymous letter to their
lawyer and communications with
various business people about the
plaintiffs. The defendants sought to
get the defamation claims struck under
the state’s anti-SLAPP statute, which
seeks to protect the First Amendment
rights of people who are involved in
advocating controversial positions
in public hearings and other public
forums. Judge Crawford found that the
anti-SLAPP statute did not protect the
circulation of the letter, finding that
the plaintiffs were not public figures
of the type contemplated by the statute
and many of the subjects covered in
the letter did not relate to matters of
public interest, however he did find
protection for the particular claim
against a defendant who read part of the
letter at a public hearing. However, the
defamatory letter sent to the plaintiffs’
lawyer was not covered by the statute,
and certain documents presented to the
Selectboard that had some basis in fact
were also deemed protected. The court
found that plaintiffs’ discrimination
claim was not time-barred, but that the
factual allegations did not support the
interference with prospective business
relations claims against one of the
defendants, who credibly claimed not
to know or have reason to know of the
prospective business relationships in
issue.
CRIMINAL LITIGATION NOTES
NEW YORK – The New York Times
reported October 7 that Port Authority
Police Officers are continuing to
aggressively enforce public lewdness
laws in the Port Authority Bus
Terminal’s restrooms, in the process
apparently arresting many innocent
people in a plainclothes sting operation
that is stirring considerable adverse
comment. As of the date of the
article, sixty people had been arrested
during 2014 in the terminal on public
lewdness charges, many of whom
claim they were not involved in any
sort of cruising activity but were just
arrested when they made eye contact
with plainclothes police officers while
urinating in the men’s rooms. One
lawyer for the Legal Aid Society,
representing some of the men who were
arrested, filed a motion arguing that the
Port Authority’s interpretation of the
lewdness law appeared to criminalize
the mere use of public urinals, pointing
out that it is very difficult for a man
to urinate without exposing his penis
to view in light of the design of the
urinals, which provide no privacy for
individual users. Some of the arrested
men claim they were being “profiled”
as gay based on their clothing, even
though they weren’t gay. The Times
reported that similar complaints had led
to a federal jury finding in 2005 that the
police regularly conducted sweeps “for
the crime of public lewdness, without
regard to probable cause,” according to
a federal court decision summarizing
the result of that trial, and that the jury
had awarded $1.1 million in damages to
a man who had been falsely arrested,
but the judge reduced the amount of the
damages.
OHIO – The Court of Appeals of Ohio
affirmed the conviction of Cortyco Ford
on charges of procuring in violation
November 2014 Lesbian / Gay Law Notes 472
CRIMINAL / PRISONER LITIGATION
of the prostitution statute in State v.
Ford, 2014-Ohio-4810, 2014 Ohio App.
LEXIS 4673 (5th App. Dist., Stark
County, Oct. 27, 2014). The defendant
connected with Aaron Bowersock on
“Adam for Adam,” a gay hook-up site,
and they met for sex at Ford’s home. In
postprandial conversation, Bowersock
remarked that a friend thought he
should try to be a gay escort because
he needed money. The defendant said
he could get clients for Bowersock, and
was as good as his word, according to
the court’s account of the testimony.
Ford arranged for some clients to
meet and have sex with Bowersock at
Ford’s home. The scheme fell apart
when Bowersock was later arrested
in a “solicitation sting” at a Walmart
store by a police detective who then
listened to voicemail messages on
Bowersock’s cellphone, which included
messages from the defendant relating to
this business arrangement. The local
prosecutor brought procurement charges
against Ford, who was convicted of the
misdemeanor in the Alliance, Ohio,
Municipal Court and sentenced to 180
days in jail, with 165 days suspended.
On appeal, Ford claimed that the
prosecution failed to prove that he had
received any monetary compensation
for his role in this scheme, and that
the police detective’s written transcript
of the voicemail messages should not
have been admitted as not being “best
evidence.” The appeals court, in an
opinion by Judge Craig R. Baldwin,
didn’t think much of either argument,
finding that the voicemail messages
supplemented adequate live testimony
to support the conviction, Ford never
disputed the accuracy of the transcripts,
and Bowersock’s testimony could
provide a basis for concluding that
Ford had kept some of the money
that clients gave to him. (Part of the
scheme, evidently, was to somehow
insulate Bowersock from liability by
having the clients pay Ford, who would
then separately pay Bowersock. But
Bowersock gave the game away by the
name he entered in his cellphone for
Ford: “Jordan Pimp”. And he suspected,
or so he testified, that the clients were
giving Ford more than Ford was giving
Bowersock.)
VIRGINIA – The 4th Circuit affirmed
the conviction of a gay man who
was arrested for sexual activity and
aggressive resistance of police officers
at Washington Sailing Marina in
Alexandria, Virginia. United States v.
Briley, 2014 U.S. App. LEXIS 20183,
2014 WL 5355522 (Oct. 22, 2014).
Jay Briley was apprehended in his car
engaging in sex with another man by
Park Police officers, and reportedly
put up quite a struggle while being
arrested, to the extent that one of the
officers sustained serious injuries and
eventually lost his gall bladder as a
result. After the jury convicted Briley,
District Judge Liam O’Grady imposed
a prison term of 78 months, with
sentences for the 4 counts on which he
was convicted running concurrently,
and a term of three years of supervised
release. The judge also ordered Briley
to pay $62,306.10 in restitution, most
of it going to the officer who was
seriously injured.
(The arresting
officers were all wearing indicia of
police status and testified that they
identified themselves as police officers
before attempting to extricate Briley
from his vehicle, but Briley tried to
argue at trial that he didn’t know they
were police officers and thought that
he was defending himself from civilian
assailants.) On appeal, Briley claimed
that the indictment was defective for not
mentioning assault, a point that the 4th
Circuit rejected. He also argued that
the government improperly introduced
evidence of his other encounters with
law enforcement on sex-related charges,
both predating and postdating the
charged conduct. While the court of
appeals was more sympathetic on this
point, the court found that the clear
evidence of his guilt on the charges
473 Lesbian / Gay Law Notes November 2014
was so overwhelming that any potential
prejudice caused by the objectionable
evidence of past offenses was harmless
error. Circuit Judge Wilkinson wrote
for the unanimous panel.
PRISONER LITIGATION NOTES
CALIFORNIA – A gay immigration
detainee’s
complaint
that
eight
correctional officers failed to intervene
to prevent his assault and brutalization
by two fellow inmates and then
subjected him to excessive force and
denial of medical care and other services
and retaliation for complaining after
the assault, all because of his sexual
orientation, survived initial screening
by United States District Judge Janis
L. Sammartino in Martinez v. Noblaza,
2014 U.S. Dist. LEXIS 142845 (S.D.
Calif., October 7, 2014). Pro se plaintiff
Jesus Martinez brought a Bivens
action -- see Bivens v. Six Unknown
Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971) –
the federal counterpart to 42 U.S.C. §
1983 – while held in a California prison
on a federal immigration detainer.
Because no criminal charges were
pending, Judge Sammartino deemed
the detention to be “civil” and Martinez
not to be a “prisoner” under the Prison
Litigation Reform Act, granting him in
forma pauperis status without payment
of partial filing fee or administrative
exhaustion otherwise required of
“prisoners.” See Agyeman v. INS, 296
F.3d 871, 886 (9th Cir. 2002). Judge
Sammartino nevertheless screened
the case sua sponte under 28 U.S.C. §
1915(e)(2) and found it “plausible on its
face,” sufficient to require summons,
service and defendants’ answer. The
court declined to appoint counsel at this
stage, without prejudice.
CALIFORNIA – Carlos Gilbert Law’s
claims that: (1) “his classification records
PRISONER LITIGATION
indicated and he told defendant [Deputy]
that he had a history of being a victim
of inmate violence due to accusations of
being a snitch, sex offender, and gay”; and
(2) he “was placed in general population
and was assaulted by other inmates”
were sufficient to withstand scrutiny in
Law v. Blandon, 2014 U.S. Dist. LEXIS
151216 (N .D. Calif., October 24, 2014).
Applying the Prison Litigation Reform
Act’s screening provisions -- 28 U.S.C.
§ 1915A(a) -- United States Magistrate
Judge Nandor J. Vadas allowed the pro se
case to proceed under a protection from
harm theory under Farmer v. Brennan,
511 U.S. 825, 832 (1994). Judge Vadas
also relied on the elaboration of the
Farmer standard in the Ninth Circuit
case of Hearns v. Terhune, 413 F.3d
1036, 1040 (9th Cir. 2005). The opinion
includes an elaborate list of orders for
further proceedings in the case.
MASSACHUSETTS – A gay prisoner,
disciplined for “inappropriate contact”
with another inmate, lost his challenge to
a subsequent reassignment from a single
cell in general population to a double
bunk in a “special confinement unit” in
Tasse v. Spencer, 2014 U.S. Dist. LEXIS
138316 (D. Mass., September 29, 2014).
United States District Judge Rya W.
Zobel found that pro se plaintiff Jeffrey
P. Tasse has no liberty interest in a single
cell, citing Rhodes v. Chapman, 452 U.S.
337, 347 (1981), and Bell v. Wolfish, 441
U.S. 520, 542 (1979); and, therefore , any
procedural defects in his punishment
failed to deprive him of any due process
rights. Although Judge Zobel does
not characterize it as a substantive due
process ruling, the judge observes that
“prisoners. . . have no constitutional
right to sexual contact with their fellow
inmates,” quoting Morales v. Pallito,
2014 WL 1758163 (D. Vt., April 30,
2014). In response to Tasse’s contention
that he suffered discrimination based
on sexual orientation in violation of
the Equal Protection Clause, Judge
Zobel finds the argument “insufficient,”
“threadbare,” and “conclusory,” because
Tasse failed to plead “any facts” to
support this theory. Applying “class of
one” equal protection theory – see Vill.
of Willowbrook v. Olech, 528 U.S. 562,
564 (2000), Judge Zobel found that only
a rational basis was needed to sustain
the new cell assignment and that a desire
“to keep an eye” on Tasse was sufficient
basis. Judge Zobel also rejected Tasse’s
argument that assigning gay prisoners
randomly to double bunk celling placed
them at unreasonable risk of danger
under Farmer v. Brennan, 511 U.S. 825,
834 (1979), because (although defendants
knew Tasse was gay) they were not
aware of any risk to him and he failed to
plead any with specificity. Judge Zobel
declined to consider state law claims.
Whether, as here, the gay inmate seeks a
single cell in general population, or (as is
more common) protective custody, this
case is another example of deference to
classification decisions by correctional
officials where the plaintiff suffered
no injury in fact and failed to make a
sufficiently compelling showing of risk
to overturn the decision. William J. Rold
MISSISSIPPI – United States Magistrate
Judge Linda R. Anderson dismissed a
gay inmate’s lawsuit raising claims of
denial of protective custody, discipline in
violation of due process, discrimination
on the basis of sexual orientation, and
denial of medical treatment in Abston
v. Shaw, 2014 U.S. Dist. LEXIS 142495
(S.D. Miss., October 7, 2014). Judge
Anderson found that pro se plaintiff
Anthony C. Abston failed to exhaust
administrative remedies by filing
and appealing grievances on each of
the claims prior to filing a federal
lawsuit and dismissed those claims
without prejudice under the Prison
Litigation Reform Act – see 42 U.S.C.
§ 1997(e). Following a Spears hearing
(a Fifth Circuit “omnibus” hearing -see Spears v. McCotter, 766 F.2d 179,
180 (5th Cir. 1985)), Judge Anderson
granted summary judgment for the
defendants on the prison disciplinary
case because Abston’s temporary
administrative segregation on charges
of having a “sharp instrument” was a
“classification” decision that did not
violate his cognizable liberty interests
under Sandin v. Conner, 515 U.S. 472,
484 (1995). She also granted summary
judgment on the sexual orientation
discrimination claim because Abston
failed to show with particularity how
he lost his job as an orderly because he
was gay or how he was intentionally
treated “adversely on the basis of
his identification as homosexual, as
compared to other similarly-situated
inmates.” Judge Anderson did not
explain who was similarly situated to
Abston in her analysis or refer to jobs
of straight versus gay prisoners in the
institution. She observed that neither
the Supreme Court not the Fifth Circuit
has mandated heightened scrutiny for
sexual orientation Equal Protection
claims, without citing to United States v.
Windsor, 570 U.S. ___ (2013); or Romer
v. Evans, 517 U.S. 620 (1996). Although
she noted that Abston was subjected
to homophobic slurs by a defendant,
and considered these allegations as an
“exhausted” claim within the grievance
Abston filed about losing his job, she
found that “derogatory remarks” did
not rise to a constitutional violation.
Abston’s claims of failure to protect him
from assault and denial of medical care
thereafter may be raised in a future case
after proper exhaustion.
SOUTH DAKOTA – A prisoner’s claims
of denial of his health care rights under
the Eighth Amendment (by doctors
refusing to provide pain management
and needed surgery scheduled prior
to incarceration) and of denial of his
equal protection rights (based on his
sexual orientation) survived screening
under the Prison Litigation Reform Act
(PLRA, in Caskey v. South Dakota State
Penitentiary, 2014 WL 5039668 (D.
S.D., Oct. 8, 2014). Without elaboration,
November 2014 Lesbian / Gay Law Notes 474
PRISONER / LEGISLATIVE
United States Magistrate Judge John E.
Simko’s Report and Recommendation
(R & R) stated that pro se plaintiff Cody
Ray Caskey’s claims survived screening
“under the Eighth Amendment…
because he alleged he was scheduled to
undergo spinal surgery before his arrest,
but after his incarceration the defendants
deliberately ignored physician’s orders to
schedule appropriate treatment…. [and]
under the Fourteenth Amendment…
because he alleged [the doctor’s ]
decisions were based on Caskey’s sexual
orientation.” The latter claims included
disparate access to recreation and
medical showers. United States District
Judge Karen E. Schreier declined to
adopt the R & R, instead allowing
Caskey to amend his complaint in its
entirely to address defenses of immunity,
official versus individual capacity, and
personal involvement. Judge Shreier’s
order deemed the R & R’s treatment of
these issues to be moot in light of leave
to amend, but her allowing Caskey to
proceed implicitly affirmed the claims’
survival of PLRA scrutiny. [Note: PLRA
screening derives from three overlapping
statutory provisions: 28 U.S.C. § 1915(e)
(2); 28 U.S.C. § 1915A; and 42 U.S.C. §
1997e(c)(1), where pleadings are facially
deficient and incapable of cure. Here,
Judge Schreier’s rejection of the R & R
dismissal of federal civil rights actions
against two state agencies as barred
under the Eleventh Amendment, and
allowance of repleading as to them, is
unusual. Typically, repleading would
be allowed only as to the named
defendants.] William J. Rold
LEGISLATIVE & ADMINISTRATIVE
U.S. OFFICE OF PERSONNEL
MANAGEMENT – The Office of
Personnel Management published in
the Federal Register on October 15 a
proposal to allow the children of samesex domestic partners living in states
that don’t recognize same-sex marriages
to be covered as family members under
the Federal Employees’ Group Life
Insurance Program. BloombergBNA
Daily Labor Report, 198 DLR A-8
(10/14/2014).
FLORIDA – The Hillsborough County
Commission voted unanimously on
October 15 to approve a domestic
partnership registry, providing certain
legal rights and decision-making powers
to partners in unmarried relationships
who register with the county, and even
allowing for people who are not in a
relationship to designate somebody to
make medical treatment decisions for
them. Among the situations covered
by the registry ordinance would be
health care center visitation, health care
decision making, funeral and burial
decisions, correction facility visitation,
notification in case of emergency, and
pre-need guardianship designation if
a registered person is incapacitated,
according to an Oct. 16 report in the
Tampa Tribune. The registry database
will be accessible by computer to hospital
staff and other health care professionals.
A similar proposal had been defeated in
January 2013, but all the Republicans on
the Commission changed their position
and cast yes votes on Oct. 15. Perhaps
a rash of Florida trial court decisions in
favor of marriage equality had the effect
of making the registry legislation look
conservative by contrast to same-sex
marriage.
IDAHO – The Lewiston, Idaho, City
Council voted on October 27 to adopt
an ordinance that bans discrimination
in housing, employment and public
accommodations because of sexual
orientation,
gender
identity
or
expression, and familial status. The
vote was 5-2. One of the “no” voters,
Councilor Clinton Daniel, claimed that
the measure was unnecessary. “What
businesses in the city of Lewiston are
actually discriminating?” he asked,
475 Lesbian / Gay Law Notes November 2014
noting that the law already protected gay
people from assault and fraud, they were
free to join the military and, as a result of
recent litigation, to marry. “There’s no
barriers left for the LGBT community,”
he asserted. Mayor Jim Kleeburg, a
supporter of the ordinance, cited his
Catholic upbringing while speaking in
favor of its passage. “I guess I missed
the part where Jesus said we’re not all
equal,” he commented in response to
those who voiced opposition citing their
religious beliefs. Lewiston became the
ninth city in Idaho to adopt such an
ordinance, to the likely consternation
of the state’s notoriously homophobic
governor, “Butch” Otter. Lewiston
Morning Tribune, Oct. 28.
MISSOURI
–
The
Springfield,
Missouri, City Council approved a bill
to add sexual orientation and gender
identity to the city’s non-discrimination
ordinance. The 6-3 vote on October
13 covers housing, employment and
public accommodations. A narrower
bill, proposed as an alternative, would
have covered only housing and refer for
more study on the issues of employment
and public accommodations, but it
did not come to a vote. An opposition
group, calling itself Springfield Citizens
United, vowed to circulate signatures for
a referendum petition to put the issue to
a public vote. AP State News, Oct. 14.
NORTH CAROLINA – The Raleigh
City Council voted unanimously on
October 21 to add protection against
discrimination because of gender
identity to the city’s human rights
ordinance, which has long prohibited
sexual orientation discrimination.
PENNSYLVANIA – Stirred by comments
that prosecutors could not assert hate
crime charges against three young
people who had viciously assaulted a
gay couple because neither the state nor
LEGISLATIVE / LAW & SOCIETY
the city had passed hate crime legislation
covering sexual orientation or gender
identity, the City Council of Philadelphia
took action on October 30, approving a
bill that would make it a crime to injure
somebody because of sexual orientation,
gender identity, or disability. The
measure calls for up to 90 days in jail
and a fine of up to $2,000 for crimes
committed against a person because of
these characteristics. A similar statelevel measure to add these categories to
the existing hate crimes law has stalled,
as has all LGBT-affirmative legislation
despite public opinion polls showing
that the legislature is out of step with
public sentiment in Pennsylvania on gay
rights. The state was only added to the
marriage equality list through federal
litigation, with the Republican governor,
in a hard re-election battle, deciding not
to prolong the case by appealing to the
3rd Circuit.
RHODE ISLAND – The Department
of Health has put new regulations in
place that remove the requirement
that transgender people have sex
reassignment surgery as a prerequisite
to getting a substitute birth certificate
showing their desired gender. Under the
new regulations, new birth certificates
will be used upon certification by a
medical provider that the person has gone
through some appropriate treatment to
effectuate their gender transition, which
could be surgical, hormone therapy,
or other appropriate treatment. The
substitute birth certificates have be
issued without designating that there
has been any alteration from a prior
certificate. Associated Press, Oct. 27.
LAW & SOCIETY NOTES
CREIGHTON UNIVERSITY – Rev.
Timothy Lannon, a Catholic priest who
is president of Creighton University in
Omaha, Nebraska, issued a statement
announcing that the University, with
the unanimous support of its University
Benefits Committee, will extend
healthcare benefits to same-sex spouses
of its employees who were married
in other jurisdictions.
(Nebraska,
in the 8th Circuit, does not yet have
marriage equality, so such marriages
are not recognized by the state.) Lannon
acknowledged disagreement on this
decision with the Archbishop of Omaha,
Rev. George J. Lucas, who issued a
statement accusing the University of
failing to live up to its responsibility as
a Catholic institution. But Rev. Lannon
pointed out that 21 of the 28 Jesuit
universities in the United States had
already decided to offer such benefits.
www.ketv.com, Oct. 27.
UNIVERSITY OF NOTRE DAME – The
University of Notre Dame, one of the
nation’s leading Catholic universities,
announced that it will extend benefits
to same-sex spouses as a result of the
U.S. Supreme Court’s decision not to
review the 7th Circuit’s ruling that
Indiana must allow same-sex couples
to marry and recognize such marriages.
The University sent an email to that
effect to employees two days after the
Supreme Court announcement. The
email said, “Notre Dame is a Catholic
university and endorses a Catholic
view of marriage. However, it will
follow relevant civil law and begin to
implement this change immediately.”
One senses that the Human Resources
Department at the university was
champing at the bit to get going on this
as soon as word came from the Supreme
Court. Chesterton Tribune, Oct. 10.
UNITED METHODIST CHURCH –
The Judicial Council of the United
Methodist Church has overruled a
local church jury in Pennsylvania
and reinstated Frank Schaefer as a
Methodist minister. The local jury had
cancelled Schaefer’s credentials after
he officiated at a same-sex wedding
ceremony for his son and refused to
promise not to perform such ceremonies
in the future. The Methodist Church’s
Book of Discipline maintains that any
sexual activity outside of heterosexual
marriage is “incompatible with Christian
teaching.” Schaefer had performed the
ceremony in Massachusetts in 2007
without informing his Pennsylvania
congregation, and it only came to
light years later after a member of his
congregation heard about it and filed an
official complaint with the church. After
the local jury “defrocked” Schaefer, he
accepted a position in California, and
he has become a gay rights activist,
traveling the country and speaking about
the Christian obligation to accept gay
people. The Church has been actively
debating its stance on homosexuality.
Its next general conference in 2006 will
undoubtedly take up the subject. Boston
Globe, Oct. 28.
“DOES HOBBY LOBBY HAVE TO PAY
FOR ME PrEP?” – Thus asked Matt
Baume of the American Foundation
for Equal Rights in an article published
on Advocate.com on October 27. In
June, the large multistate crafts retailer,
which is a closely-held corporation
owned by a small family group of
devout Catholics, won in the Supreme
Court on its claim that the corporation
could refuse to fund insurance coverage
for four female contraceptives that its
owners inaccurately characterize as
abortifacients whose use violates their
religious principles. Burwell v. Hobby
Lobby Stores. Although the majority
opinion by Justice Samuel Alito asserted
that the Court was only narrowly ruling
on the company’s refusal to fund
these specific preventive measures,
the reasoning of the ruling naturally
prompts the question. Can a corporate
owner who has religious objections
to providing a drug that makes it safe
for gay men to have sex refuse to
include coverage for that drug under its
November 2014 Lesbian / Gay Law Notes 476
LAW & SOCIETY / INTERNATIONAL
employee benefits plan? The medication
in question, Truvada, has been approved
by the Food & Drug Administration for
preventive use, and the FDA is urging
sexually-active gay men to start taking
it. Truvada is a medication that is
already in used by HIV-positive people
to suppress the effects of the virus. The
article points out the significant public
health consequences of a refusal to fund
this medication. Would a lower federal
court attempting to apply the Hobby
Lobby precedent see the case of preexposure prophylaxis for HIV (PrEP) as
distinguishable for contraception?
INTERNATIONAL NOTES
THE
INTERNATIONAL
BAR
ASSOCIATION – At a meeting in Tokyo
the International Bar Association voted
in support of a resolution calling on
every nation to repeal laws criminalizing
sexual orientation or gender identity.
The resolution, reported in a news
release by the U.S. National LGBT Bar
Association on October 20, state that
it is now “the policy and commitment
of the IBA that all criminal laws in
respect of consensual, adult, private
sexual conduct addressed to persons
because of their sexual orientation
or gender identity be repealed.” The
IBT is the international network of
bar organizations, in which the U.S.
National LGBT Bar Association
participates.
ARGENTINA – Argentina has granted
refugee status to a gay Russian, finding
that the 28-year-old man would be
subject to persecution because of his
sexual orientation in Russia. The name
of the refugee was omitted from news
reports to protect his identity. The
request for asylum status was sponsored
by Argentina’s Federation of Lesbians,
Gays, Bisexuals and Transgenders,
FALGBT. en.mercopress.com, Oct. 21.
AUSTRALIA – Two Australian states
have enacted statutes which provide
a mechanism for the expungement of
convictions for sodomy. Victoria and
New South Wales each decriminalized
homosexual acts in 1981 and 1984
respectively. Now those States have each
passed laws allowing people who have
been convicted of gay sex offences to
apply to the government to have their
convictions expunged. The convictions
may be expunged provided the offence
was not with an underage person or a
person under the care of the applicant, or
one which involved violence, deception
or an absence of consent. A refusal or
failure to decide to expunge a conviction
can be appealed to an administrative
appeals tribunal. The Acts passed with
bipartisan support. Both states currently
have conservative governments. Another
state considered likely to pass such a
law is South Australia. Although the
government of Queensland is hostile to
the gay community, it is possible that a
private member’s bill (as in NSW) would
gain bipartisan support in that state at a
time when, as with the government of
Victoria, the government is likely to lose
a lot of seats at the upcoming election.
The NSW Act is called the Criminal
Records
Amendment
(Historical
Homosexual Offences) Act 2014 and can
be accessed at www.legislation.nsw.gov.
au. The Victorian Act is the Sentencing
Amendment (Historical Homosexual
Offences Expungement) Act 2014 and
can be accessed at www.legislation.vic.
gov.au. David Buchanan, Barrister,
Sydney, Australia
BOTSWANA – The government is
appealing a ruling by Justice Bengbame
Sechele of the Gabarone High Court on
August 22, 2014, that the government
must provide anti-retroviral medications
to foreign citizens serving time in
Botswana prisons. The government
maintains that this would be too costly.
The attorney general maintains that the
court inappropriately referred to the
477 Lesbian / Gay Law Notes November 2014
South African Constitution in making
its analysis of Botswana’s obligations.
Africa Review, Oct. 14.
ENGLAND – The U.S. National LGBT
Bar, in partnership with InterLaw
Diversity Forum for LGBT Networks and
JPMorgan, is holding an LGBT Bar Legal
Conference in London on November 19.
Details are available at www.LGBTBar.
org/London. * * * Michael Cashman, who
recently retired from representing the
West Midlands region of England in the
European Parliament, has been ennobled
as Baron Cashman of Limehouse in the
London Borough of Tower Hamlets and
seated in the House of Lords. Cashman,
described in PinkNews as an LGBT
rights campaigner, was seated just days
after the death from cancer of his partner,
Paul Cottingham. On Oct. 27, he tweeted:
“Tuesday I take my seat in the House of
Lords. I will not take it alone. Beside me,
unseen by others, will be the love of my
life Paul Cottingham.” He was elevated
to the House of Lords in August and took
his seat on Oct. 28 in a formal ceremony.
The Labor Party has awarded him an
Outstanding Achievement Award, and
party leader Ed Milliband announced
that Lord Cashman would serve as the
party’s global LGBT rights envoy.
ESTONIA – On October 9 the Estonian
parliament approved a gender-neutral
cohabitation law that provides most of
the rights and protections of marriage
to non-married co-habiting partners,
become the first country of the former
Soviet Union to provide legal rights and
recognition for same-sex couples and
their families. ILGAEurope.
ISRAEL – The Knesset, Israel’s
Parliament, has given first reading
approval to a surrogacy law, introduced
by Health Minister Yael German, by
a vote of 45-15, which would extend
eligibility for surrogacy serves to same-
INTERNATIONAL
sex couples and single people. At present,
Israeli law only allows married differentsex couples to resort to surrogacy when
a wife is unable to bear a child. Minister
German welcomed the initial approval
with a statement on her Facebook
page: “This is a day which brings with
it good news, in which we were able to
bring about equality between people
and allow anyone who wants to have a
family.” MK’s from the religious parties
and social conservatives blasted the
law as undermining Israel’s status as a
Jewish state. Approval at first reading
is a necessary step, but there will be
significant additional debate before the
measure can be enacted. Arutz Sheva,
2014 WLNR 30036385 (Oct. 28).
ITALY – The Italian press reported in midOctober that the government of Prime
Minister Matteo Renzi was planning to
introduce legislation providing for civil
unions along the model followed by
Germany and Austria, amidst a flurry of
consternation about the actions of various
local mayors and magistrates who were
defying the orders of the Interior Minister,
Angelino Alfano, by registering samesex marriages contracted by their citizens
in other countries. Alfano had issued
an order that the foreign gay marriage
registration be annulled, but the mayors
were actively defying him, pointing out
that European human rights law now
supports a requirement that provide some
form of legal recognition for same-sex
partners, if not yet holding that same-sex
marriage is a right guaranteed under the
European Convention on Human Rights.
* * * The European Union Agency for
Fundamental Rights published a report
on Oct. 28 which found that LGBT
community members in Italy were the
most-discriminated against gay people
in the European Union. 54% of LGBT
respondents from Italy said that they
suffered discrimination, and just 8% said
that they are always open about their
sexuality. ANSA English Media Service
(10/28/14).
KENYA – In an unprecedented move,
Kenya’s High Court ordered the Kenya
National Examinations Council to
change the name of transgender activist
Audrey Mbugua on her academic
certificates. The council also ordered
removal of the male gender marker on
the certificates, which were originally
issued in the name of Andrew Mbugua.
Previously the High Court had ruled that
the National NGO Council must register
Mbugua’s group, Transgender Education
and Advocacy, and pay the group’s legal
fees for the case they had to litigate in
order to win the right to register. Reuters,
Oct. 7.
KYRGYZSTAN – The parliament has
given initial approval to a Russian-style
ban on “gay propaganda,” which would
likely make it impossible for gay rights
organizations to operate openly in the
country. Bilerico Project, Oct. 15.
NIGERIA – Ruling that a straight,
married man who lives in the United
Kingdom lacked standing to bring the
case, the Federal High Court of Nigeria
rejected a suit by Teriah Joseph Ebah to
have the anti-gay law enacted in January
declared invalid. Ebah told reporters,
“I decided I wasn’t going to accept a
Nigeria that was discriminatory.” The
court said Ebah lacked standing because
he could not prove that he had been
directly harmed by the law, reported
buzzfeed.com on October 22.
PHILIPPINES – Quezon City, the
Philippines’ largest municipality, has
adopted a city ordinance banning
discrimination on the basis of sexual
orientation and gender identity on Sept.
29. The measure passed unanimously
after a marathon 8-hour public hearing.
A 2003 resolution had addressed the
issue in a narrower form, but the new law
adopts penalties in aid of enforcement
and provides for affirmative action
by the city government to prevent
discrimination. The measure was
championed by Mayor Herbert Bautista
and Vice Mayor Joy Belmonte. Agusan
del Norte province had passed a similar
measure in June. GayStarNews.com,
Oct. 3.
SCOTLAND – The new law authorizing
same-sex marriages in Scotland will
go into effect by the end of 2014.
Beginning December 16, couples in
existing Scottish Civil Partnerships will
be able to change their relationship to a
marriage, and couples seeking to marry
can start the paperwork on that date.
Scottish law interposes a 14-day waiting
period, so the first marriages would be
performed on December 31, according
to an announcement on the Scottish
government’s website posted on Oct. 13.
SINGAPORE – The Court of Appeal has
ruled in Lim Meng Suang and Kenneth
Chee Mun-Leon v. Attorney General,
[2014] SGCA 53 (Oct. 28, 2014), that
Singapore’s Penal Code Section 377a,
a descendent of the colonial-era “gross
indecency” statute used to prosecute
men for gay sex, does not violate the
Singapore Constitution’s guarantees of
equal protection and liberty. The 100page retrograde decision, very much
out-of-step with decisions by western
courts, is of course compatible with the
recent ruling along similar lines by the
Supreme Court of India. The judges
concluded with the view that the case
presented a political rather than a legal
question, as to which the court should
defer to the legislature.
SPAIN – Catalonia’s legislature passed a
law that imposes fines for attacks carried
out against LGBT people. The measure
requires an accused defendant to prove
their innocence, a departure from
normal practice that drew criticism from
conservatives and Catholics (groups that
November 2014 Lesbian / Gay Law Notes 478
PROFESSIONAL / PUBLICATIONS NOTED
overlap!). The measure passed mainly
with the votes of Catalan socialists and
other “left wing groups,” according to a
September 31 report in euobserver.com.
PROFESSIONAL NOTES
THE LGBT LAW ASSOCIATION OF
GREATER NEW YORK (LeGaL)’s
Foundation has teamed up with
RUTGERS SCHOOL OF LAWNEWARK to establish a monthly walkin legal clinic that will be administered
as part of Rutgers’ clinical education
program as the New Jersey LGBTQ
Pro Bono Legal Assistance Project,
with advisory services provided at no
charge by specially trained volunteer
lawyers and law students. A reception to
celebrate this new project was scheduled
for Wednesday, November 5, at the Law
School’s Berson Boardroom. The LeGaL
Foundation runs pro bono legal clinics in
Manhattan, Brooklyn, the Bronx and on
Long Island. This is its first venture out of
New York State. LeGaL has traditionally
numbered many New Jersey attorneys
and law students among its members.
The Chicago Tribune reported on
October 19 the death of JERRY J.
BURGDOERFER, an out partner at
Jenner & Block who did pro bono work
for Lambda Legal and the Howard
Brown Health Center, was president of
the Indiana University Maurer School of
Law LGBT Alumni Advisory Board, and
received the Indiana University GLBT
Alumni Association’s Distinguished
Alumni Award in 2013. Mr. Burgdoerfer
specialized in complicated international
transactions and represented many
multinational Japanese firms, having
spent significant time in Tokyo on client
business for J&B. He married Sam Tek
Tang, his partner of eleven years, in one
of the first legal same-sex marriages
in Illinois earlier this year. He is also
survived by his parents and two brothers.
1. Chatelain,
Mallory,
Same-Sex
Marriages Are Not Created Equal:
United States v. Windsor and Its
Legal Aftermath in Louisiana,
75 La. L. Rev. 303 (Fall 2014)
(the travails of married same-sex
couples living in a non-recognition
state).
2. Dabrowski, Julie, The Exception
That Doesn’t Prove the Rule: Why
Congress Should Narrow ENDA’s
Religious Exemption to Protect the
Rights of LGBT Employees, 63 Am.
U. L. Rev. 1957 (August 2014).
3. Doriott, Ricardo G., The Legal Ethics
Surrounding Morality Clauses and
Homosexual Relationships, 27 Geo.
J. Legal Ethics 487 (Summer 2014).
4. Duffy, Christine (editor), Gender
Identity and Sexual Orientation
Discrimination in the Workplace: A
Practical Guide (BloombergBNA,
2014) (treatise prepared with
assistance of the National LGBT
Bar Association, all contributors
working pro bono, with royalties
going to support Gay & Lesbian
Advocates & Defenders, New
England’s LGBT public interest law
firm).
5. Finck, Michele, The Role of
Localism
in
Constitutional
Change: A Case Study, 30 J.L. &
Pol. 53 (Summer 2014) (how local
policymaking on gay rights has
powered the gay rights revolution).
6. Herzig,
David
J.,
Marriage
Pluralism: Taxing Marriage After
Windsor, 36 Cardozo L. Rev. 1 (Oct.
2014).
7. LaCour, Kendra, License to
Discriminate: How a Washington
Florist Is Making the Case for
Applying Intermediate Scrutiny to
Sexual Orientation, 38 Seattle U. L.
Rev. 107 (Fall 2014).
8. Leonard, Arthur S., Backlash and
Marriage Equality, 2 Ind. J. L. &
Soc. Eq. 316 (2014), online journal:
479 Lesbian / Gay Law Notes November 2014
available at www.repository.law.
indiana.edu/ijlse/vol2/iss2/6. (Book
review of Klarman, From the Closet
to the Alter: Courts, Backlash,
and the Struggle for Same-Sex
Marriage).
9. Marneffe, Peter de, Sexual Freedom
and Impersonal Value, 7 Crim. L. &
Phil. 495 (Oct. 2013).
10. Mir, Haniya H., Windsor and Its
Discontents: State Income Tax
Implications for Same-Sex Couples,
64 Duke L.J. 53 (Oct. 2014).
11. Murphy, Jeffrie G., A Failed
Refutation and an Insufficiently
Developed Insight in Hart’s Law,
Liberty, and Morality, 7 Crim. L.
& Phil. 419 (Oct. 2013) (inter alia,
takes on and eviscerates Scalia’s
morality dissents in the major gay
rights Supreme Court decisions).
12. Ornduff, Paige Chamberlain, Who
Gets the Bun That Doesn’t Make
It to the Oven? The Rights to PreEmbryos for Individuals in SameSex Relationships, 8 Charleston L.
Rev. 557 (Summer 2014).
13. Schacter,
Jane
S.,
Unequal
Inequalities?
Poverty,
Sexual
Orientation, and the Dynamics
of Constitutional Law, 2014 Utah
L. Rev. 867 (2014) (Symposium:
Governing the United States in
2020).
14. Siegel, Neil S., Federalism as a
Way Station: Windsor as Exemplar
of Doctrine in Motion, 6 J.
Legal Analysis 87 (Spring 2014)
(attempting to figure out just what
the Supreme Court was doing
doctrinally in U.S. v. Windsor).
15. Soucek, Brian, The Return of
Noncongruent Equal Protection, 83
Fordham L. Rev. 155 (Oct. 2014)
(intellectual tour-de-force; how do
deal with the federalism elements
in U.S. v. Windsor in the subsequent
challenges to state same-sex
marriage bans).
Lesbian/Gay
Notes
Lesbian/Gay
Law Law
Notes
Podcast
Podcast
“First Amendment” cont. from pg. 465
Dever supported Hinkley and
therefore Pompeo was able to make a
plausible argument against Dever as
well. Dever was Hinkley’s supervisor
and could have exercised independent
judgment and overruled Hinkley, but
she did not. Dever by her inaction
condoned Hinkley censoring Pompeo’s
speech. Both Hinkley and Dever
attempted to censor a viewpoint that
they themselves did not like. They did
not try to censor Pompeo for educational
reasons, allegedly; it was for purely
personal reasons. Dever contributed to
Pompeo being forced to drop the class.
The University attempted to make
one final argument and that argument
did not get any traction with the court.
The University argued that Pompeo
was disruptive and Pompeo countered
that prior to this class she received
straight A’s or A-‘s. It was clear to
the court that the University’s making
these complaints against Pompeo was
pretext.
The court decided that Pompeo’s
First Amendment right was established.
The standard for deciding a motion to
dismiss requires a plaintiff to set out
a claim showing that there is enough
evidence that taken as true states a
claim for relief. Pompeo demonstrated
that she had a plausible claim for relief
and therefore the court denied the
University’s 12(b)(6) motion to dismiss.
Prior cases support this holding that
in the university setting, content-based
restrictions on speech must be justified
by ‘legitimate’ educational concerns.
Pompeo’s views on lesbianism are
protected by the First Amendment…
as they should be. A University setting
should be a forum where students can
express their views without fear of
repercussions. Hopefully this case
will change the minds of the professors
at the University of New Mexico who
decided to censor the speech of a
student because they disagreed with her
view. – Tara Scavo
Tara Scavo is an attorney in
Washington D.C.
Check out the Lesbian/Gay
Law Notes Podcast each month
to hear our Editor-In-Chief New
York Law School Professor Art
Leonard and Matthew Skinner,
the Executive Director of LeGaL,
weigh-in on contemporary LGBTQ
legal issues and news.
Listen through iTunes or at
legal.podbean.com!
EDITOR’S NOTES
This proud, monthly publication is edited and chiefly written by Professor Arthur
Leonard of New York Law School, with a staff of volunteer writers consisting of
lawyers, law school graduates, current law students, and legal workers.
All points of view expressed in Lesbian/Gay Law Notes are those of the author, and
are not official positions of LeGaL - The LGBT Bar Association of Greater New
York or the LeGaL Foundation.
All comments in Publications Noted are attributable to the Editor. Correspondence
pertinent to issues covered in Lesbian/Gay Law Notes is welcome and will be
published subject to editing. Please submit all correspondence to [email protected].
November 2014 Lesbian / Gay Law Notes 480