Is Anti-Gay Discrimination Unconstitutional? Not in the 10th Circuit!

A unanimous three-judge panel of the U.S. Court of Appeals for the 10^th Circuit, based in Denver, ruled in Milligan-Hitt v. Board of Trustees of Sheridan County School District No. 2, 2008 Westlaw 1795068 (April 22), that the constitutional status of anti-gay discrimination remains so unsettled early in 2003 that a Wyoming public school superintendent who was found to have discriminated against two lesbian administrators based on "community notions of morality" was immune from liability. The court also refused to commit itself as to whether the legal point is clearly enough established today to vitiate an immunity defense. Two of the judges on the panel were appointed by George W. Bush, the third by Ronald Reagan.

Kathleen Milligan-Hitt and Kathryn R. Roberts, a lesbian couple who had previously lived in Rock Springs, Wyoming, moved to Sheridan to take up administrative jobs in the public schools there. Both were working on renewable one-year contracts. Milligan-Hitt was assistant principal of a junior high school, and Roberts was principal of a middle school. They both filed suit after their applications for new administrative positions that came open as a result of construction and reorganization in the school district were denied, naming as defendants the school board, the superintendent, and the assistant superintendent.

In May 2002, they had accompanied a school field trip to Montana. When school resumed in the fall, each of them was confronted by the Superintendent of Schools, Craig Dougherty, who related that he had received a complaint from some parents that during the field trip their daughter had seen Milligan-Hitt and Roberts "holding hands and walking into a Victoria’s Secret store," according to the court’s opinion by Judge Michael W. McConnell. Both women testified that this account was "false," and that Dougherty had stated that it did not "sound like a likely story," but that he discussed it with them because he "wanted to let them known that this had occurred."

"The content of these discussions was disputed at trial," wrote McConnell. "According to Ms. Roberts, Mr. Dougherty called her into her own office (where he was sitting in her chair) and told her about the complaint. After she denied the incident, Mr. Dougherty responded ‘that he had called Rock Springs and he knew all about the two of [them].’ She testified that he was angry, and that his face was red and his voice slightly raised. Ms. Milligan-Hitt testified to a similar conversation: Mr. Dougherty also told her, ‘I called Rock Springs and I know all about you two.’ He was angry and red-faced during this version of the conversation as well, and she felt that her ‘job could be in jeopardy.’ In contrast," continued McConnell, "Mr. Dougherty testified that he was not upset during these conversations, did not mention Rock Springs, and told Ms. Roberts that her sexual orientation ‘would never be an issue’ so long as he was superintendent."

Judging by the subsequent rulings of the trial judge and the jury verdict, Dougherty’s version of events was not found to be credible.

The interviews and hiring decisions for various new administrative positions were made during the first half of 2003. After neither woman was successful in landing the positions they sought, the district did not renew Milligan-Hitt’s contract, and Roberts was hired to teach physical education for a year. The two women later moved to Lander, Wyoming, finding work in the public schools there, and filed the lawsuit, claiming to have been the victims of sexual orientation discrimination in violation of the 14^th Amendment’s Equal Protection Clause.

A series of complicated pre-trial rulings followed by a jury trial resulted in a determination by the trial judge that Dougherty had violated the plaintiffs’ constitutional rights, but that Dougherty enjoyed immunity from personal liability because at the time, prior to the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003) (striking down that state’s sodomy law), a reasonable person in Dougherty’s position would not know that his conduct was unconstitutional. As part of this ruling, the trial judge concluded that Lawrence had changed the law (after Dougherty’s actions) by invalidating "community moral standards" as a justification for anti-gay discrimination by the government.

On the other hand, the jury found that the school district had delegated its decision-making on filling the positions to Dougherty, that he had unconstitutionally discriminated, and that the district should be held liable to the tune of $160,515 in damages. While individual government officials enjoy personal immunity for violations of constitutional law if the basis for their liability was not clearly established when they acted, government entities, such as a school board, do not enjoy such immunity, and may be held liable when they delegate their policy-making function to an individual who discriminates.

Thus, the end result of the trial was that both the judge, in ruling on Dougherty’s motion to find him immune from personal liability, and the jury, in ruling on the school board’s liability, agreed that Dougherty had violated the plaintiffs’ equal protection rights, based on a current understanding of constitutional law, but that Dougherty was not personally liable based on the state of the law early in 2003.

On appeal, the 10^th Circuit concluded that the trial judge should not have allowed the case against the school board to go to the jury, finding as a matter of law that the school board had not delegated its hiring decisions to Dougherty and thus could not be held liable based solely on his violation of constitutional rights. A government entity is not held liable unless it has a policy or practice that violates constitutional rights, and there was no evidence that the Sheridan school board had such a policy. The trial judge thought that the delegation issue was a factual question for the jury to resolve, but the court of appeals ruled that it was a legal question to be resolved by the court, and that based on the school board’s charter and resolutions, it was clear that the board retained final hiring authority.

However, the appeals court found that the trial judge had correctly concluded that Dougherty enjoyed personal immunity based on the state of the law prior to Lawrence v. Texas and, going even further, left some doubt whether Dougherty could be found to have violated the law as it now stands, by stating that "we offer no opinion on whether Lawrence v. Texas, decided after the events of this case, clearly established a rule of equal protection relevant here when it overruled Bowers v. Hardwick[, 478 U.S.186 (1986)]."

Accepting the finding that Dougherty’s opposition to Milligan-Hitt and Roberts was based on community moral disapproval of their lesbian lifestyle, Judge McConnell observed that in Bowers, the Supreme Court had treated "moral disapproval" of homosexuality as a rational basis for outlawing "homosexual sodomy." That ruling had in turn been relied upon by the 10^th Circuit Court of Appeals in a 1992 case, Jantz v. Muci, 976 F.2d 623, which found that a school superintendent enjoyed immunity from liability for rejecting a gay applicant for an administrative position. Since Jantz relied on Bowers, and since Bowers was not overruled until Lawrence, the court of appeals found that before Lawrence a school superintendent in the 10^th Circuit could believe that it there was no constitutional prohibition on disfavoring a gay job applicant on the basis of moral disapproval.

The plaintiffs argued that Romer v. Evans, 517 U.S. 620 (1996), which struck down the anti-gay Colorado Amendment 2, signaled that anti-gay discrimination violated the Equal Protection Clause, undermining the Jantz precedent. McConnell disagreed, pointing out that even gay legal scholars, whose works he cited in a footnote, had found Romer to be a puzzling decision whose import for gay rights under the Equal Protection Clause was unclear. The majority opinion in Romer did not mention Bowers, although – as McConnell fails to state – Justice Scalia’s Romer dissent criticized the Court for failing to acknowledge that its holding was inconsistent with Bowers. The Romer decision did say, however, that animus against gay people could not serve as a "rational basis" for an anti-gay official state policy, so McConnell was taking a rather crabbed view of Romer’s impact on the continuing precedential soundness of Jantz.

"We do not think Romer’s holding was so clear," wrote McConnell, "and do not think it clearly overruled Jantz’s holding that municipal officials may sometimes defer to community standards when discriminating on non-suspect grounds." He pointed out that the ultimate precedential weight of Romer remains undetermined, even after Lawrence, which, after all, was not an equal protection ruling. "This is not necessarily to minimize the impact of Romer," he wrote; "It is simply to say that Romer’s impact on prior precedent was not clear when it was decided. It is possible, as we have noted before, that the decision will ultimately ‘represent the embryonic stage’ of a major change in doctrine. But officials held personally liable for damages do not have to guess whether that is so before the courts decide it, and Romer does not reveal its own scope. Because the constitutional rule at issue was not clearly established for the period relevant to this case, Superintendent Dougherty may not be held personally liable for damages."

The ironic bottom line is that although both the trial judge and a jury concluded that Dougherty unconstitutionally discriminated against Milligan-Hitt and Roberts, nobody can be held liable for the discrimination. And, at least in the 10^th Circuit, such immunity may persist until such time as the circuit court, or the Supreme Court, makes a more definite ruling about the constitutional status of anti-gay discrimination.