Leonard Link

6th Circuit Revives Graduate Counseling Student's Religious Discrimination Claim Against Eastern Michigan University

A unanimous panel of the U.S. Court of Appeals for the 6th Circuit ruled on January 27 that District Judge George C. Steeh (E.D. Mich.) should not have granted summary judgment in favor of Eastern Michigan University on a 1st and 14th Amendment free speech/free exercise of religion claim by a graduate student who was expelled from the graduate counseling program after she asked that counseling practicum clients presenting gay relationship issues be referred to other counseling students because of her religious objections to gay relationships. Ward v. Polite, 2011 WL _______ .

Distinguishing this case from the 11th Circuit’s recent decision in Keeton v. Anderson-Wiley, 2011 WL 6275932 (Dec. 16, 2011), which upheld the denial of a preliminary injunction to a student expelled from a graduate counseling program under somewhat similar circumstances, Circuit Judge Jeffrey Sutton wrote for the 6th Circuit panel that a reasonable jury could conclude, based on the summary judgment record, that Ward was discriminatorily expelled because of her religious beliefs.

In the Keeton case, the plaintiff presented herself as an outspoken critic of homosexuality who would, if given the opportunity, refer gay clients for “conversion therapy” and try to persuade them to abandon the “gay lifestyle,” as the District Court found in that case after a hearing on the motion for preliminary injunctive relief to block the expulsion. In this case, by contrast, while stating her personal religiously-based objection to same-sex sexual relationships, Julea Ward requested that a practicum client be assigned to a different counselor so that she would not be in a position to provide counseling that would affirm same-sex relationships. The court pointed out that both the American Counseling Association ethical code, which was cited as a required standard for an accredited program, and textbooks and expert testimony, supported the proposition that professional counselors with strongly held beliefs that might clash with those of their clients can and should refer the clients to other counselors, so that the client would have the benefit of a counselor would could affirm their beliefs and provide helpful counseling services.

Faculty members and administrators dealing with Ward’s case had claimed that the program had a “no-referral policy” in the required practicum; that students were obliged to deal with any client and be able to comply with professional standards of not imposing their own values on the client. But the court found conflicting evidence as to whether the school actually had such a consistent policy, in the light of no evidence of a written policy to that effect, and in the face of the ACA ethical code, which itself supports making referrals to other counselors in such circumstances.

“Ward’s free speech claim deserves to go to a jury,” wrote Judge Sutton. “although the university submits it dismissed Ward from the program because her request for a referral violated the ACA code of ethics, a reasonable jury could find otherwise – that the code of ethics contains no such bar and that the university deployed it as a pretext for punishing Ward’s religious views and speech.” He asked, “What did Ward do wrong? Ward was willing to work with all clients and to respect the school’s affirmation directives in doing so. That is why she asked to refer gay and lesbian clients (and some heterosexual clients) if the conversation required her to affirm their sexual practices. What more could the rule require? Surely, for example, the ban on discrimination against clients based on their religion (1) does not require a Muslim counselor to tell a Jewish client that his religious beliefs are correct if the conversation takes a turn in that direction and (2) does not require an atheist counselor to tell a person of faith that there is a God if the client is wrestling with faith-based issues. Tolerance is a two-way street. Otherwise, the rule mandates orthodoxy, not anti-discrimination.”

Since the ACA code itself allows “values-based referrals,” the court observed that a reasonable jury could conclude that the school’s assertion that it had a “no-referrals” policy was not required by the profession’s ethical standards and, in the absence of any examples of past application of such a policy, a jury could conclude that it was made up ad hoc for the purpose of discriminating against Ward, especially in light of record evidence that various faculty members had made negative comments about her views.

The court noted that the free exercise of religion claim would lead to a similar result as the free speech claim.

However, the court was careful to note that it was not ruling on the merits of the case, just on whether it was appropriate for the trial judge to grant summary judgment when the record consisted solely of affidavits and deposition testimony and there had been no actual hearing. Contrasting this to the Keeton case, Sutton observed, “At one level, the two decisions look like polar opposites, as a student loses one case and wins the other. But there is less tension, or for that matter disagreement, between the two cases than initially meets the eye. The procedural settings of the two cases differ. In Keeton, the district court made preliminary fact findings after holding a hearing in which both sides introduced evidence in support of their claims. Not only are there no trial-level fact findings here, but Ward also gets the benefit of all reasonable factual inferences in challenging the summary-judgment decision entered against her.” By contrast, in a preliminary injunction action, the burden is on the plaintiff to show a strong likelihood of success on the merits of the case, a burden which the 11th Circuit found Ms. Keeton had not met in her case. Judge Sutton also noted differences between Ward, who asked not to be put in the position of having to affirm same-sex relationships with a client, and Keeton, who had made statements that she sought to confront gay clients and urge her values upon them.

The court affirmed the district judge’s decision denying qualified immunity to the individual defendants. Immunity would not extend to Ward’s demand for injunctive relief, just to the demand for money damages, and as to that, the court said, depending how the jury resolved factual disputes, it could find that the university dismissed Ward from the program “because of hostility to her religious speech and beliefs,” and a state actor who proceeds on such a basis does not enjoy immunity from liability. However, the court rejected Ward’s appeal of the district court’s decision to dismiss any claims against the university president and members of its board of trustees, agreeing with the trial judge that there was no evidence that they played any meaningful role in the decision to dismiss Ward. “The problem in this case,” wrote Sutton, “is not a facially unconstitutional policy, as Ward submits, but the potentially improper implementation of that policy by some members of the university and not others. The district court properly accounted for this distinction.”

Ward is represented by the Alliance Defense Fund, an issue-oriented legal organization that frequently appears in cases involving religious freedom claims, especially against gay rights claims. The university is represented by the Michigan Attorney General’s office. Numerous amicus briefs were filed on both sides of the case, including briefs supporting the University from Lambda Legal and the ACLU of Michigan.

The Five Borough Songbook - The Show and the Recording

Last year I attended the Queens, NY, premiere of the "Five Borough Songbook," a collection of 20 songs commissioned from 20 composers by the Five Boroughs Music Festival.  A few weeks ago, I attended the Manhattan premiere - the same twenty songs, but a slightly different mix of singers.  I was curious to hear this music a second time, having been so impressed on first hearing.  So on January 12 I was in the auditorium at Baruch College in Manhattan, not only to hear the live performances but also to pick up the recording, which was released that day (and since the release has quickly climbed to number 12 on the Billboard classical list). 

This is not a "live in concert" recording.  Instead, taking the collection of 20 songs as a starting point, producers Glen Roven (one of the participating composers), Peter Fitzgerald, Richard Cohen, and Megan Henninger took the musicians into the Sound Associates studio during October and November, dividing up some of the songs between people who had sung them at the Brooklyn premiere and the Queens premiere (since there were cast changes between the two shows) and also involving 5BMF Artistic Director Jesse Blumberg (a noted baritone) in some of the performances even though he hadn't sung in the two concerts.  The results are splendid.

Each of the composers was asked to come up with a text to set.  Some looked through available published poetry, others reached out to poets for new text or devised their own.  The unifying factor was that the Five Borough Songbook was not just composed by individuals who live or work in the City of New York, but would also provide musical settings for texts that somehow had something to do with New York City, the "something to do" being loosely defined.  Several of the songs relate to the subway system, which is surely one of the defining features of New York.  Others focus on particular places, from Times Square to the Fresh Kills landfill on Staten Island to Coney Island Avenue.  Others relate experiences, incidents, or feelings associated by the poets and/or the composers with New York.  There is even some "found text," such as Lisa Bielawa's song "Breakfast in New York" which sets snippets of conversation she would overhear and jot down while eating breakfast in her favorite Queens diner.

There's even something in here for my own specialized collection of musical settings of The Psalms, as Yotam Haber set a poem by Julia Kasdorf which is based on Psalm 137 in his song "On Leaving Brooklyn." 

The composers also ranged from well-established people with international reputations to those with more localized fame.  In some cases this marked my first exposure to music by these composers, while in other cases I am very familiar with the work.  But despite this range of reputation and experience, I thought the entire collection achieved a uniformly high standard of inspiration and quality.

With twenty different composers, there are also a wide variety of musical styles on display, demonstrating a melange of influences from Broadway to the highest of high art songs.  Two things noticeably missing, however, are atonality or serial music.  All of these songs sound to me like they have a tonal center, and most seemed concerned with inventing and developing lyrical lines.  The enunciation of the singers is so fine and the audio engineering is so well done that one can pick up just about all the text without having to look at a printed version, but this release is also excellent in providing complete texts in the insert booklet, something that one can't necessarily count on when purchasing vocal recitals on independent labels.  (This is a production of GPR Records.)  (The booklet cover provides two appropriate NYC scenes, one of an MTA train, of course....  The only thing missing that would have been useful are bios of the composers and performers.)

It remains, for purposes of Google accessibility, for me to list the artists involved with this superb production.  The composers are Christopher Berg, Lisa Bielawa, Tom Cipullo, Christina Courtin, Mohammed Fairouz, Renee Favand-See, John Glover, Ricky Ian Gordon, Yotam Haber, Daron Hagen, Martin Hennessy, Gabriel Kahane, Gilda Lyons, Jorge Martin, Russell Platt, Glen Roven, Matt Schickele, Richard Pearson Thomas, Christopher Tignor, and Scott Wheeler. 

The singers are: Tenors Javier Abreu, Keith Jameson and Alex Richardson; Sopranos Mireille Asselin and Martha Guth; Mezzo-Sopranos Meg Bragle and Blythe Gaissert; Baritones Jesse Blumberg, Scott Dispensa, David McFerrin and David Adam Moore.  Violinist Harumi Rhodes and Pianists Thomas Bagwell and Jocelyn Dueck collaborate with the singers.  The pieces range from unaccompanied singing to "choral" numbers involving the entire cast at any given performance.  On the recording, the songs have been arranged to present a coherent and entertaining cycle varying vocal types and instrumental participants in a way that keeps things fresh and exciting.

Favorite songs from among those presented?  It would be invidious to single any out, since having heard two complete performances and listened to most of the recording twice, I have to say there is not one dud in the bunch.  Every song is interesting and entertaining or moving or stimulating in its own way, and they are all worth hearing. 

I hope that there can also be a sheet music publication, or at least a downloadable version of the sheet music, because this Songbook would be a wonderful source of individual numbers for singers to take up in their song recitals.  There is something in here for most vocal ranges, and quite a few that limit themselves to piano accompaniment, making them more easy to integrate into a general song recital.  (Perhaps in a publication of the music the composers could adapt their compositions so that all could be performed with piano accompaniment, but that would definitely undermine the distinctive flavor of some, especially those that used the violin rather than the piano as the sole instrumental collaborator.)  Several of these songs would make dandy encores, and it would certainly be possible for any singer wishing to include a selection of NYC-related songs to make up a fine "suite" extracted from the book.  Indeed, I can imagine an entertaining suite made up of just the subway songs...

"A Hole in His Heart" at Atlantic Stages

Last night I attended a performance of a new play by Jon Kakaley, "A Hole in His Heart," at Atlantic Stages on West 16th Street, a production of "Ten Years Productions" directed by Jake Turner.  My theater-going companion and I subscribe to Atlantic Stages, which affords a variety of independent theater productions over the course of the season.  The description of this show sounded interesting, so we decided to take the plunge, even though we had never heard of the author, so we showed up without any specific expectations.

Mr. Kakaley is a young actor who has been working on this, his first full-length play, since January 2009.  He's spent the last several years struggling to build a career as an actor in New York, and has appeared in some short films, TV series pilots, and off-Broadway revivals of some well-known stage plays, but it sounds like he hasn't yet had his real break-through as an actor.  According to an author's note in the program, he's realized that the hard work and sacrifice has caused him to neglect forming relationships with people, and although he's derived "great joy" from being an actor, "I have always felt a hole in my heart.  I've thought long and hard about what that hole was from, and I believe it's from the relationships I've missed out on to get here."  His play is devoted to exploring this issue.

He has created (both as a writer and actor) the central character of James Logan, a young film actor whose career has developed nicely over the span of ten years and is about to take-off into "star" territory, but who is bothered by the lack of personal relationships in his life.  All the calls he receives are business calls.  Ten years previously he had separated from a girlfriend in order to make a career as an actor, but the regret at ending that relationship lingers.  As the play begins, his ex-girlfriend, now a divorced woman in poor health who has lost custody of her child due to her drug abuse and neglectful ways, is lounging in her seedy one-room apartment when Logan bursts unannounced through her door, having had no contact with her in a decade, and seeks to restart their relationship.  The play explores the rocky road that ensues towards rebuilding the trust destroyed by his prior desertion, and the ultimate test that Logan faces in trying to decide what is more important to him - pursuing this relationship or seizing upon the next big opportunity for his career.

The entire effort is marked by great sincerity, but in truth the play is very much a first effort.  Mr. Kakaley performs the lead role with enthusiasm, and his supporting cast is also clearly very committed to the effort, but I thought the script and production still needed plenty of work to become convincing. 

At intermission, my theater-going companion asked "Had enough?" and suggested leaving.  But I insisted that we stick it out.  I thought that these actors and the technical staff supporting them had put a real effort into making something of this story, and although the end result was not entirely convincing, we should at least stay and see how things turned out.  I concluded that the second act was actually more effective than the first.  Exposition establishing the characters and their relationships can be difficult, but once the plot is really set in motion, things tend to move more smoothly.  Knowing how to end can be difficult, and I don't know that Mr. Kakaley solved the problem of ending this play all that convincingly - a blackout at a moment of high drama can be a good ending, but I found this one a bit unsatisfying.

According to his bio in the program, Mr. Kakaley is working on two more plays and I would be interesting in seeing how his experience with this first effort pays off in future works.  I would also be interested in seeing him acting in other peoples' productions, as he does exhibit significant skill as an actor.  His chief supporting player, Ydaiber Orozco, a Venezuelan-born actress who plays the girlfriend, really threw herself into the role as well, and I enjoyed her performance.  Briefer supporting roles were well taken by Brian Podnos, Arthur Gerunda, Daniel Genalo, and Mark Hennessy.  The entire play was performed on a single set meant to represent "a low-income house in the middle of nowhere," which it adequately did.  Director JakeTurner had to handle the light and sound due to the last minute unavailability of a staff member, which may explain some of the lengthy delays between scenes, and definitely explains the delayed start of the show, which runs a bit over 2 hours. 

This is a limited run, so anybody interested should not hesitate.

Minnesota Appeals Court Revives Same-Sex Marriage Lawsuit

The Court of Appeals of Minnesota ruled on January 23, 2012, that Hennepin County District Judge Mary Dufresne erred in dismissing outright a lawsuit by three same-sex couples seeking marriage licenses.  Finding that the trial judge had inappropriately relied on a 1971 Minnesota Supreme Court decision, Baker v. Nelson, the court of appeals sent the case back to the trial court for a determination whether the denial of marriage licenses violates the Minnesota Constitution's due process, equal protection, and freedom of association requirements.

Writing for the unanimous three-judge panel, Judge Renee L. Worke pointed out that the 1971 ruling in a case brought by a male same-sex couple seeking a marriage license was based entirely on the federal constitution, and that the opinion issued by the state supreme court in that case (which was denied review by the U.S. Supreme Court on the ground that it presented no "substantial" federal constitutional question) did not undertake any analysis of the same-sex marriage claim under the state constitution.

This is a significant factor, because, said the court, Minnesota courts have construed their state constitution to place a more significant burden of justification on the state when it adopts policies that raise due process and equal protection issues.  Thus, Judge Dufresne's reliance on Baker v. Nelson, without engaging in an "independent" analysis of the state constitutional claims, was erroneous.  Furthermore, Judge Worke observed, federal constitutional law has moved on since 1971, and the U.S. Supreme Court's 1996 ruling in Romer v. Evans might require a different analysis of a federal equal protection claim concerning same-sex marriage.

The court did grant a motion by the state to be dismissed as a defendant in the case, on the ground that only the county official charged with issuing marriage licenses, Hennepin County Local Registrar Jiill Alverson, who had actually denied the marriage licenses, was an appropriate defendant.  The court also approved Judge Dufresne's dismissal of a religious freedom claim asserted by the couples, one of whom who had enjoyed a church wedding that is not recognized by the state because of its Defense of Marriage Act.  The court, engaging in a bit of sophistical reasoning, concluded that "there is no evidence that the state's failure to recognize same-sex marriages interferes with the appellants engaging in a religious marital ceremony."  This seems to miss the point of their claim.

The court also rejected the argument that Minnesota's DOMA, which was enacted as part of an omnibus family law statute, violated the state's "single subject" rule, finding that the rule has been so loosely applied that as long as all the constituent parts of the statute had some general relationship to the legal status of families, there was no violation.

However, the court was clear in ruling that the plaintiffs in this case are entitled to place the burden of justifying the exclusion from same-sex marriage on the state.  Although the court was not ready to hold that same-sex couples are necessarily being denied a fundamental right on the basis of a suspect classification, nonetheless it pointed out that Minnesota courts apply a more stringent version of the "rational basis" test that must be met by all legislation than does the U.S. Supreme Court under the federal constitution.

"Appellants claim that the government cannot deprive them of their fundamental right to marry without showing that this denial is narrowly tailored to serve a compelling state interest," wrote Judge Worke.  "But even if the right to marry is not considered a fundamental right, appellants should have been granted an opportunity to show that MN DOMA is not a reasonable means to its stated objective -- to promote opposite-sex marriages to encourage procreation.  The district court failed to conduct an appropriate analysis under the Minnesota Constitution; therefore, appellants' due-process claim on a rule-12 motion was improperly dismissed."

Worke wrote similarly regarding the equal protection and freedom of association claims.  (The freedom of association claim was specifically asserted also on behalf of a child being raised by one of the couples.)  The court pointed out that the main difference between Minnesota equal protection and federal equal protection in a "rational basis" case is that "under the Minnesota test we have been unwilling to hypothesize a rational basis to justify a classification, as the more deferential federal standard requires."  Instead, the state has the burden of putting forth a defensible justification for the law, and the trial judge was wrong to assume that the result in Baker under the federal constitution should control in this case. 

On the association claim, the court of appeals pointed out that the state supreme court in Baker failed even to discuss a federal right of association claim that had been asserted in that case, providing no basis for Judge Dufresne to assume that an associational decision under the Minnesota Constitution in favor of the plaintiffs would be contrary to the Baker ruling.

"The district court failed to address appellants' challenges under the Minnesota Constitution," concluded Judge Worke.  "A proper analysis is necessary especially because the Minnesota rational-basis test for determining whether equal-protection rights have been violated is more stringent than the federal test."  Noting that in Baker itself the Minnesota Supreme Court had said that there was no guidance from the U.S. Supreme Court "regarding whether the right to marry is a fundamental right of all persons and whether restricting marriage based solely on sex is 'irrational and invidiously discriminatory,'" the court observed that "since Baker was decided in 1971, the United States Supreme Court has issued decisions providing guidance on these issues," and singling out Romer v. Evans, which struck down a Colorado anti-gay constitutional amendment on equal protection grounds, as an example. 

Clearly, in the opinion of the Minnesota Court of Appeals, there is a serious question under Minnesota constitutional law whether the state's Defense of Marriage Act is constitutional.  Although the court does not cite or discuss the various recent federal rulings casting doubt on Section 3 of the federal Defense of Marriage Act or the Prop 8 trial court ruling from California, these hover in the background as rejections of denial of marriage rights to same sex couples, as momentum has built in the courts. 

This case was not brought by any of the national LGBT groups, but rather was originated by three couples in Minneapolis represented by a local attorney, Peter J. Nickitas.  It did attract amicus attention from some of the usual suspects, including the anti-gay Alliance Defense Fund and the Minnesota Catholic Conference, which filed a brief representing also the views also of associations of Evangelicals and Hassidic Jews.  The case also attracted an amicus brief from Minnesota Atheists in support of the plaintiffs.

The other two judges on the unanimous panel were Terri Stoneburner and Jill Flaskamp Halbrooks.  Since the state is no longer a defendant in the case, the decision whether to try to appeal this interlocutory ruling to the Minnesota Supreme Court rather than to go back to the district court for discovery and trial falls to the county attorney, Michael O. Freeman, representing Registrar Alverson.

A Brief Remembrance of Steven W. Siegel

This morning I attended the funeral service for Steven W. Siegel, a friend of more than thirty years whose premature death at 65 is much to be deplored.  Although I thought the remembrances spoken at the service evoked this wonderful man very well, I wanted to add a few comments to help memorialize him in cyberspace.

When I first met Steve after joining Congregation Beth Simchat Torah (as it was then named), NYC's gay synagogue, in 1977, he was also a relatively new member but I believe had already claimed the synagogue's newsletter as his domain.  And this was fairly typical of Steve, who was a devoted historian and archivist.  He pushed the 92nd Street Y to develop an appropriately-organized archive of its sound recordings of musical and other cultural events, winning himself a job as an Archivist at a time when few such institutions employed people in such a capacity, and ultimately becoming Director of the Y's library as well, until that organization made the lamentable decision in 2009 to disperse its collection and convert the library space into offices, precipitating his early partial retirement.  (Steve continued to consult with the Y on its archives and to undertake private research jobs as a historian-genealogist until he became too ill to continue.)

When my Cornell classmate Mark Schwartz and I resolved after attending our 5th reunion event in 1979 to start an LGBT alumni association, Steve was an early recruit, being already very active in Cornell alumni activities, and played a major role in getting the Cornell University Gay and Lesbian Alumni Association (CUGALA) off the ground and sustaining it through difficult times. (He was a member of the class of 1968 in the College of Engineering.) 

Those were also the days when Steve was present and participating in the creation of the emerging field of Jewish genealogy, one of his lifetime passions.  Up to his death, he had served continuously as a board member of the Jewish Genealogical Society in New York City, had been a co-editor of its newsletter (after having co-edited an independent Jewish genealogy publication, Toledot, for several years), and had also served as the organization's president.  He was also very active in the NY archivist community.

Steve was very active in Cornell alumni affairs in addition to CUGALA - whose main coordinator he was for several decades.  He was active on the board of Cornell University Hillel and the Cornell Alumni Association, participated in interviewing high school students in the NYC metro area who were interested in learning about Cornell, was a president of his Cornell class, and frequently attended Cornell events in New York and Ithaca. 

But all this organizational involvement, while typical of Steve, who was a persistent and valued volunteer, hardly begins to say everything about him. 

For almost 30 years, he was partnered as soulmates with Rob Selden, who passed away a few years ago.  They were absolutely devoted to each other, despite maintaining separate residences.  At almost any public event you could imagine, they were together, traveling, going to organizational events, and were frequent patrons of opera, symphony concerts, vocal recitals and theater.  (My most frequent surprise encounters with them were in the intermissions at NYC Opera at Lincoln Center.)  Rob was sometimes a difficult person to get along with, being very argumentative, while Steve, although also a perfectionist, was much more accommodating to the quirks of others.  As a result, they worked very well as a couple, complementing each other, and sharing great enthusiasm and curiosity about everything going on.

Steve only confided about his battle with cancer with a relatively small circle of acquaintances he wanted to know what was going on.  I was privileged to be part of that group.  When Cornell University announced that Steve would be honored with a special alumni service award named after former CU President Frank Rhodes in a ceremony in Ithaca, I immediately contacted him about my husband Tim and I going to the ceremony.  As it turned out, we were able to facilitate Steve's last visit to Cornell for the September 16, 2011, event.  Tim rented a car and drove us, which was easier on Steve than taking the Cornell bus.  He put off by a week the start of a new regimen of chemotherapy in order to be able to make this trip, which was exhausting for him but I think very important for his morale. 

Although we continued to exchange email, I last saw Steve when we had dinner on October 22.  I had originally invited him to join me for the NY Philharmonic concert that night, but he had declined because he hoped to be in Ithaca that weekend for an alumni association board meeting.  But in the event he didn't feel well enough to make the trip, so we had dinner before I went to the concert, having previously exchanged my other ticket.  As per his usual request, we had Chinese food, of which Steve was a particular fan!  Although we continued to have email contact until mid-December and were planning another get-together, it was not to be.

I will really miss him, and I think so many people and organizations  he was affecting on a regular basis will miss him.  He was part of the glue holding CUGALA together for many years, and I hope some of the younger alumni who have shown interest will be able to fill that gap, but it will be difficult, given how much his personal energy and diligence meant to the organzation.  Farewell, friend!