A recurring issue - Does the Constitution Bar anti-Gay Discrimination?

In the course of preparing my newsletter, contributing to Gay City News, and writing this blog, I see lots of court opinions that pop up as I trawl the westlaw database for new developments.  Nothing is so dismaying as seeing gay litigants thrown out of courts by judges who fail to realize the development of constitutional case law that goes far beyond what they learned in law school.

Here's a case that's popped up yet again after several prior surfacings: Fisher v. State of Florida, 2008 WL 360780 (U.S.Dist.Ct., M.D. Fla., Feb. 8, 2008).  James Fisher, a poor Floridian dependent on food stamps who incidentally happens to be gay, alleges that the Florida Department of Children and Families, which administers the food stamp program, has refused to recertify him because he is gay.  Specifically, he alleges that employees of the Department have said to him that "because Plaintiff is a fagot [sic] they would not recertify" him to continue in the program.

Fisher represents himself pro se.  He believes he has a claim of unfair discrimination.  He keeps running into federal magistrates and judges who thinks he does not.  And their cited justification?  "There is no statute which prohibits discrimination on the basis of sexual orientation in relation to the processing of food stamp applications."

Food stamps is a joint federal-state program, administered by a government agency, which means that there does not have to be a statute for there to be a discrimination claim.  There is the CONSTITUTION, which requires that states provide equal protection of the laws.  As I stated in a letter sent today to U.S. District Judge Virginia M. Hernandez Covington (M.D. Fla.), whose decision once again dismisses Fisher's attempt to bring this claim pro se in forma pauperis:

"Mr. Fisher is a pro se litigant who apparently believes that government agencies are not allowed to discriminate on the basis of sexual orientation in the provision of services. He is running up against federal magistrates and judges, including you, who apparently disagree with that. But in this case he is correct.

"Pursuant to the U.S. Supreme Court’s decision in Romer v. Evans, 517 U.S. 620 (1996), sexual orientation discrimination by a government entity subject to the 14^th Amendment is unconstitutional unless there is a rational basis for such discrimination. I am unaware of any rational basis for a Florida state agency to discriminate in the administration of the food stamp program on the basis of sexual orientation. The lack of a specific statutory cause of action is irrelevant. Indeed, the Supreme Court has ruled that discrimination in the administration of the food stamp program violates the constitutional obligation of equal protection in Department of Agriculture v. Moreno, 413 U.S. 528 (1973), prominently cited by Justice Sandra Day O’Connor in her concurring opinion in Lawrence v. Texas, 539 U.S. 558 (2003), in which she asserted that the Texas Homosexual Conduct Law violated the 14^th Amendment Equal Protection Clause.

"The 11^th Circuit’s decision in Lofton v. Secretary, Department of Children and Familyi Serivces, 358 F.3d 804 (11^th Cir. 2004), petition for rehearing en banc denied, 377 F.3d 1275 (11^th Cir. 2004), certiorari denied, 125 S.Ct. 869 (2005), is not to the contrary. The 11^th Circuit rejected an equal protection challenge to the treatment of gay prospective adoptive parents by the Florida government based on the court’s view that there was a rational basis for the policy, not on the basis that the state was free to discriminate in the absence of a rational basis.

"Consequently, I believe that Mr. Fisher’s complaints have been wrongly dismissed. I do not represent him, and I have had no contact with him. But after reading this series of rulings with mounting frustration, I felt the need to communicate with you."

This constitutional problem has arisen in a variety of settings in which individuals are protesting unequal treatment due to their sexual orientaton, and all too many federal magistrates and judges seem to be operating under the belief that until the Supreme Court has declared a group to be a "suspect class" that group may not make any discrimination claim under the Constitution.  Of course, if that were true, the Court would have had to write a very different sort of opinion to produce the same result in Romer v. Evans.  In that case, the Court struck down Colorado Amendment 2, the most blatantly anti-gay piece of "legislation" one could imagine, by saying that there was no rational basis to justify it.  In other words, government may not discriminate on the basis of sexual orientation in the absence of a rational basis.

And, in the context of the food stamp program specifically, the Court ruled in Moreno that discrimination without rational justification (in that case, singling out households of unrelated adults for exclusion from the program) must fall.

I wonder how my letter will be received, if it is even read....?

Comments

[mtr]

Thanks. I'm glad to hear that you sent that letter.

[Jonas]

What strange rulings. Please keep us informed of any response or updates to this case.

[Jeff]

Bravo for writing your letter. I don't understand how judges can be so misinformed.

[Art Leonard]

Thanks for the encouragement. In the past I've found writing to judges about their decisions not particularly productive, but thought I would give it a shot. If I receive any response, I'll report on it here on my blog.