Leonard Link

6th Circuit Rules That Discharge of Lesbian by Religious Agency Was Not Forbidden Religious Discrimination

The U.S. Court of Appeals for the 6^th Circuit has ruled that a lesbian who was fired from her job at the Kentucky Baptist Homes for Children (KBHC) because of the employer’s religiously-based disapproval of homosexuality may not maintain a claim of employment discrimination on the basis of religion. Affirming a grant of summary judgment to the employer in Pedreira v. Kentucky Baptist Homes for Children, Inc., 2009 WL 2707226 (Aug. 31, 2009), the court held that Alicia Pedreira had not pled facts that placed in question whether she was discharged for her religious beliefs, and that another lesbian who claimed to have been deterred from applying to work for the defendant because of its well-known anti-gay hiring policies did not have standing to bring a religious discrimination claim, either.

In an earlier phase of this long running case (Pedreira was discharged in 1998), the courts had rejected the idea that Pedreira’s discharge violated the Equal Protection Clause of the 14^th Amendment of the federal constitution, refusing to accept the theory that heavy state funding of KBHC would render it subject to the constitutional constraints placed on state actors.

However, in the other prong of this consolidated case, the court of appeals reversed the trial court’s decision to reject a taxpayer Establishment Clause challenge to the continued funding of the KBHC by the state of Kentucky, finding that the plaintiffs had standing as state taxpayers to contest the state’s continued financial support for the defendant’s religious activities. Studies show that KBHC deliberately permeates its services to children with Christian doctrine, leaving it open to the charge that it uses taxpayer money to proselytize for religion.

Circuit Judge Julia Smith Gibbons wrote the opinion for the court. Americans United for Separation of Church and State and various projects of the ACLU participated in the case on behalf of Pedreira and other plaintiffs.

Pedreira had been a successful family specialist working with children at KBHC’s Spring Meadows Children’s Home when she was discharged after being discovered by management to be a lesbian. Pedreira was not "out" on the job, but she was "out" in her personal life, allowing a picture of herself with her female partner attending an AIDS fundraising event to be displayed at an exhibit at the Kentucky State Fair. Some managers from KBHC saw the photograph at the Fair exhibition. The termination notice to Pedreira stated that she was discharged "because her admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values." After the discharge, KBHC announced as its official policy that "it is important that we stay true to our Christian values. Homosexuality is a lifestyle that would prohibit employment."

Thus, it was clear from the outset of this case that KBHC adopted its anti-gay employment policy for religious reasons. Pedreira reasoned that since her own religious beliefs did not agree with those of KBHC, their dismissal of her was discrimination on the basis of religion, a prohibited form of discrimination under both Title VII of the Civil Rights Act of 1964 and the Kentucky Civil Rights Act.

Judge Gibbons observed that in a prior ruling, the 6^th Circuit held that the prohibition on religious discrimination has been interpreted "to preclude employers from discriminating against an employee because of the employee’s religion as well as because the employee fails to comply with the employer’s religion. . . Seizing on this latter interpretation, Pedreira argues that living openly as a lesbian constitutes not complying with her employer’s religion. Pedreira claims that she was terminated because she does not hold KBHC’s religious belief that homosexuality is sinful."

But the court refused to accept this analysis of the situation, insisting that KBHC fired Pedreira "on account of her sexuality," but that "Pedreira has not explained how this constitutes discrimination based on religion." Judge Gibbons asserted that Pedreira had not "alleged any particulars about her religion that would even allow an inference that she was discriminated against on account of her religion, or more particularly, her religious differences with KBHC." Quoting from the same earlier 6^th Circuit decision, Gibbons insists that the burden was on Pedreira to show "that it was the religious aspect of her conduct that motivated her employer’s actions." And, said Gibbons, "Pedreira does not allege that her sexual orientation is premised on her religious beliefs or lack thereof, nor does she state whether she accepts or rejects Baptist beliefs. While there may be factual situations in which an employer equates an employee’s sexuality with her religious beliefs or lack thereof, in this case, Pedreira has ‘failed to state a claim upon which relief could be granted.’"

Cop-out and double-talk, I say. KBHC made it very clear that the discharge was motivated by religion, when it told Pedreira that it found her "homosexual lifestyle" to be "contrary" to the establishment’s "core values" and subsequently issued a policy statement asserting that its anti-gay personnel policy was necessary to "stay true to our Christian values." Pedreira clearly alleged that she was discharged because her employer considered her to be living a sinful lifestyle that failed to conform to the employer’s religious values, with which Pedreira disagreed. How much more direct could she be in this circumstance? And how could it be any clearer that this discharge was all about religion?

In a separate part of the opinion, the court of appeals said that the trial judge had misapplied a recent Supreme Court ruling about federal taxpayer standing to the state taxpayer aspects of this case. According to Judge Gibbons, the plaintiffs in this case pointed to specific Kentucky appropriations to KBHC, made with knowledge of KBHC’s religious proselytizing among the children sent to its care, and the court found that such identification of specific appropriations conferred standing on the state taxpayers.

Another contested issue was that the trial court had refused to allow any evidence about the discharge of Pedreira to be considered in connection with the Establishment Clause part of the case. Gibbons stated that evidence about Pedreira’s discharge and KBHC’s employment practices would be relevant and admissible, as "courts routinely look to employment policies to shed light on the sectarian nature of an institution for purposes of the Establishment Clause." Thus, on remand to the trial court for further consideration of the constitutional challenge to state funding of KBHC, evidence of Pedreira’s discharge may be used to help prove that KBHC is a pervasively religious institution which the state should not be using taxpayer money to fund.

Tarantino's "Inglorious Basterds"

If you've seen any prior Tarantino film, you'll know what to expect.  This man is the master of setting up an interesting confrontation scene, building it through various heart-clutching moments, and then resolving it in a blaze of violence.  And he does it over and over again, and that's what this movie is made up of....  an elaborate Jewish revenge fantasy for WWII and the Holocaust.  It is very much a fantasy, and quite an entertaining one, but not for the squeamish, because Tarantino likes his violence....

The performances.  Brad Pitt.  What can I say, a master of characters and accents.  This is NOT one of his pretty-boy roles.  He plays a battle-scarred American mountain-man quasi-terrorist, and he does it with pizzazz.  Melanie Laurent, playing in French, is a wonderful Mata Hari.  And Christoph Waltz, the leading player on the German side, practically steals the movie.  Where has this guy been?  I see a big future for him in American flicks if he wants it.  His English is great, so's his Italian, but most important is the pure gusto he brings to his role.  Wow!

This is entertainment cinema, with thrills and chills.  There's nothing very deep here, just a terrifically inventive mind at play, given the budget to construct his fantasies and using his talent to keep the audience enthralled.  And the theater at 6 pm on a Sunday in August was PACKED, so I think the second weekend will rack up well after last weekend's glorious opening.  This should play well on the small screen as well, given the excellent performances, but seeing it on the big screen with hundreds of other people in a theater with good projection and sound is a must.

Another Circuit Finds a Gay Man Can Bring a Gender Stereotyping Claim Under Title VII

In Prowel v. Wise Business Forms, 2009 WL 2634646 (3rd Circuit, August 28, 2009), a unanimous panel reversed a summary judgment and held that a gay man was entitled to a trial of his sex discrimination and retaliation claims against an employer that had fired him after he continued to complain about harassment by co-workers. The key to winning the right to a trial was Brian Prowel's detailed allegations of harassment responding to his effeminate gender presentation at the workplace.

Prowel, who is openly gay, describes himself as failing to conform to the stereotypes of male blue collar workers held by his former co-workers and bosses.  By his description, he was a fashionable dresser in an industrial plant where most of the workers wore work clothes, and his speech and mannerisms were seen as effeminate by coworkers who referred to him as "Princess" and "Rosebud."  There was also some blatant homophobia, which erupted after somebody placed a clipping of a male-for-male personals ad on Prowel's work station together with a note encouraging Prowel to follow up.  He overheard one worker stating that she hated Prowel and that all "faggots" should be shot.  The continuous harassment to which he was subjected was so emotionally disturbing that he would have to pull over to the side of the road while driving to work in order to vomit.  Prowel frequently complained to management about the ongoing harassment but obtained no real satisfaction, as no effective steps were taken to end the problem.  Finally he was let go, ostensibly for lack of work in the plant.  His work evaluations were all good.

Prowel sued under Title VII alleging sex discirmination and religious discrimination, as well as retaliation for his frequent complaints.  District Judge Terrence F. McVerry granted summary judgment to the employer, citing 3rd Circuit precedent that sexual orientation claims were not actionable under Title VII.  but the court of appeals panel concluded that Prowel's allegations would support two alternative theories: sex discrimination due to failure to conform to gender stereotypes (the sex stereotyping theory) or sexual orientation, and held in an opinion by Circuit Judge Thomas Hardiman that so long as either theory might plausibly explain what happened to Prowel, he should be able to get to a jury.  The jury will have to decide whether this is a sex discrimination case.

"Wise cannot persuasively argue that because Prowel is a homosexual, he is precluded from bringing a gender stereotyping claim," wrote Hardiman.  "There is no basis in the statutory or case law to support the notion that an effeminate heterosexual man can bring a gender stereotyping claim while an effeminate homosexual man may not.  As long as the employee -- regardless of his or her sexual orientation -- marshals sufficient evidence such that a reasonable jury could conclude that harassment or discrimination occurred 'because of sex,' the case is not appropriate for summary judgment."

On the other hand, the court of appeals upheld the dismissal of Prowel's religious discrimination claim, finding that it was, in effect, a sexual orientation claim.  Prowel's argument was that because the dislike of co-workers was due to their religious beliefs about homosexuality, the discrimination should be considered religious discrimination.  The court ruled, in effect, that religious discrimination claims are about the religion of the employee claiming discrimination, not the religion of discriminatory co-workers.

This move by the court seems designed to ensure that Title VII can't be construed to ban sexual orientation discrimination, as such.  It has long seemed to this writer that the religious roots of anti-gay discrimination should provide a logical argument to protect gay employees from such discrimination, but the few times the argument has been raised the courts have been unwilling to go there.  Hardiman was very open about the reasons for this rejection.  Congress has been presented with numerous opportunities to add a sexual orientation discrimination ban to federal law, and has not yet done so.  Under the circumstances, the court will not adopt some alternative theory that would make sexual orientation discrimination routinely actionable.  On the other hand, the lower federal courts are bound by Price Waterhouse, the 1989 Supreme Court decision that gender stereotyping can be taken as forbidden motivation in a sex discrimination claim, and clearly, as he points out, the sexual orientation of the plaintiff is conceptually irrelevant in such a case.

While granting a reversal of the summary judgment on the sex discrimination claim, the court also revived Prowel's retaliation claim, as turning on much the same issue of whether he could bring a gender stereotyping claim under Title VII as a gay man.  There is also a supplementary state law claim here, but Pennsylvania has not yet added sexual orientation to its state anti-discrimination law, so that is also a sex discrimination claim.

Let's enact ENDA and end all this hairsplitting.  This kind of case shows the need for ENDA, to clearly establish that sexual orientation discrimination in the workplace is wrong.  It interrelates with two forms of forbidden discrimination -- sex discrimination and religious discrimination -- and there is at this point a national consensus reflected in public opinion polling that anti-gay workplace discrimination should generally be illegal.  (Indeed, most people who are polled believe it is already illegal - and so it is for most of the country as a matter of state law - but the point still needs to be pinned down in a federal statute to be maximally effective and require employers to revise their practices.

The legal team representing Prowel to this point includes Katie R. Eyer of Salmanson Goldshaw (Philadelphia), Corey S. Davis of Equality Advocates Pennsylvania, and Pittsburgh attorney Timothy P. O'Brien.  Eyer argued the appeal.  The Women's Law Project submitted an amicus brief in support of the appeal.

Jeremy Denk's Piano Recital at the Highline Ballroom

And yet another concert venue appears in New York City.  The High Line, as I've mentioned previously, is a new "park" running through the Chelsea neighborhood on the far West Side Side of Manhattan, occupying what used to be a set of elevated train tracks that were used to bring goods down to the grocery and meat packing districts of the far West Side.  Somebody has had the bright idea to take the second floor of an old industrial building in the neighborhood and to turn it into a performance/event space with full restaurant capacity.  The space appears to be quite versatile, being easily set up for dance events, theater, music....  Glancing through the calendar of upcoming events, it seems the Denk recital is unusual. The musical entertainment is more oriented towards popular music, including some very well-known names.  (The Wainwright family will be putting in an appearance, for example.)

For the Denk recital, the place was set up to resemble a nightclub.  One acquires general admission tickets on-line.  The place opens two hours before the concert.  There is a full menu and one has a meal while waiting for the event to begin.  The lights are quite dim, the tables candlelit, disco balls hanging eerily from the ceiling, the piano illuminated on the stage at the north end of the moderately large space, the bars along the west and east ends.  The audience begins to trickle in at 6 and by show-time at 8, the place is packed.

Denk comes out in t-shirt and jeans and, with the assistance of a microphone, initiates an informal recital program with some comments about each of the pieces as he goes along.  This is a no-nonsense, uncompromising recital program.  Bach's Partita No. 3, Ives's Piano Sonata No. 1, a brief intermission, then Chopin's Polonaise-Fantasy, Op. 61, and finally Liszt's Rhapsodie Espagnole.  The program is perhaps 20 minutes shorter than a recital one would encounter at Carnegie Hall and there is no encore despite the tumultuous response of the audience to the Liszt - for the simple reason that there is a dance event scheduled at 11, so they must clear the hall and remove the tables rapidly.

What about the musical experience (apart from Denk's performance)?  The acoustic would be fine for many kinds of performance, but it was not for a piano recital.  The room is a bit too small to comfortably accomodate the sound of a grand piano in the hands of somebody who is a strong player.  This may have been worsened by inadvertant amplification.  (Was that standing microphone that Denk used for his comments left on during the playing?  It seemed possible to me, given the somewhat odd balances and oppressive loudness.)  Perhaps they thought some amplification was necessary because of the loudness of the air conditioning system, as well as the background noises of an active restaurant business.  While Denk played, waiters moved about, the bartenders continued to operate (including occasional noises of dipping into the ice supply or shaking mixed drinks), the doors to the hall slammed shut from time to time (the staff needs to be trained to handle that door quietly during performance), the doors to the kitchen swung open and shut (why don't they oil the hinges before a concert and tell the kitchen staff to keep their mouths shut?) -- so there is plenty of background noise to accompany what the artist on stage is doing.

About the artist:  Denk played very well.  His Bach was vigorous, rythmically alive, precise.  The Ives was done with full spirit, fast-paced, bringing out the thematic sources of the music in a way that can be buried in the various recorded performances I've heard.  (The last live performance I can recall hearing was by William Masselos when I was an undergraduate at Cornell in the early 1970s - this is a rarity on recital programs).  The Chopin was the most hurt by the ambient noise, since quieter moments had to compete for attention, but Denk clearly loves the piece and communicated that.  Finally, the Liszt, despite some rather prominent dropped notes along the way, was exhilarating in its sheer virtuosity.

Is this a good place to hear a piano recital?  That's a difficult question to answer.  There is much extraneous noise and movement to divert one's attention.  On the other hand, hearing the music played in that space with that kind of audience, does provide a different sort of perspective.  One goes to an outdoor musical event knowing that one will not hear music under ideal concert-hall conditions, but it can nonetheless be a satisfying experience on its own terms.  That's true as well of the Highline Ballroom.  It's a night out in New York.  I do think the operators of the space could take some steps through training of their staff to lessen somewhat the distractions, but capitalist concerns intrude - much of the movement is associated with the ongoing restaurant business activities which are undoubtedly a major source of the revenue that runs the place, since the ticket price for entry is modest. 

Finally -- some enterprising record company should record Jeremy Denk in the Ives Sonata!!!!

Keeping Kansas Safe for Toto!

But seriously, folks, should a guy who loved his ex-girlfriend's dog, Yodi, just a bit too much, have to register as a sex offender?  Well, these are the kinds of questions they have to confront in the Kansas courts.  I kid you not....

State of Kansas v. Joshua B. Coman, 2009 WL 2633688 (August 28, 2009 - BREAKING NEWS!!!!)

So Josh was dating this woman and really fell for her dog, Yodi, in a big way.  Josh and the girlfriend (not named in the opinion) broke up -- the court doesn't tell us why -- but evidently Josh just had to get it on with Yodi one more time.  (Don't ask....)  Anyway, he got some lube (too much sharing here) and snuck into the ex-girlfriend's garage with Yodi, where they were "doing it" when she came in to get something from her freezer.  Judge Henry W. Greene, Jr.'s decision tells the story with laconic grace:

"Upon entering her garage to access the freezer, the complaining witness reported seeing her ex-boyfriend Coman lying on the floor of the garage with his pants and underwear down around his ankles, his shirt pulled up, and her female Rottweiler lying beside him.  When she turned on the light, Coman moved his hips away from the dog and quickly pulled his pants up.  Coman then said he loved the dog, Yodi, and he told the witness, "I don't expect you to understand, but I had to see her one more time."  When police arrived, a pat-down revealed Coman's penis remained erect and he had a bottle of personal lubricant in his left front pocket.  Coman denied having intercourse with the dog, but he admitted that he tongue-kissed her and digitally penetrated her.  A search of Coman's cell phone revealed several photos of dogs and one video clip of a man engaging in sexual intercourse with a canine."

Coman pled guilty to the bestiality charge in the Sedgwick County District Court, admitted in court that his motivation for his activity was sexual, and was sentenced to six months in the clink (to be served consecutively to a sentence for similar conduct, presumably with a different dog, in Reno County), ordered to receive psychiatric treatment, and required to register as a sex offender.  He filed an appeal.

The court ducked his appeal of the conviction on a technicality.  In wording his appeal, he had stated he was appealing the sentence, so the court said he had failed to appeal the conviction itself.  Since he pled guilty, and it seems highly unlikely any court would find that sex between people and animals is constitutionally protected, there's no great loss there.  But the court did find that the question whether he should have to register as a sex offender was properly before it.

The court divided 2-1 on the result.  The sex offender registration statute in Kansas imposes the registration requirement upon conviction of a sexually violent crime.  It includes a 14-item list referencing various provisions of the criminal statutes, and then has a catch-all provision referring to any other sexually motivated crimes.  The list references the sodomy law, but specifies just 2 of the 3 operative sections in that law, dealing with children, and omits the section dealing with gay sex and bestiality.  The majority of the court said that because Coman conceded that his conduct was sexually motivated, the trial judge could exercise discretion under the catch-all provision to impose the registration requirement.  The dissenter, Judge Steve Leben, says that this construction of the catch-all provision renders the legislative judgment to exclude the bestiality section from the 14-item list a nullity.  The proper construction of the catch-all, he argues, should be to bring in other offenses not considered by the legislature in putting together its list, and NOT offenses the legislature specifically decided to omit.

The upshot: The Kansas Court of Appeals keeps the state safe for Toto and other dogs by requiring sexually-oriented dog molesters to register.  We're sure former Pennsylvania U.S. Senator Rick Santorum would approve, since he was vitally concerned about the problem of "man on dog" sex. Now they just have to teach the state's canine population how to consult the registry so they'll know whom to avoid.  (Just kidding, there, folks.)  We imagine that thus alerted, dog owners can raise the alarm and take preventive measures if Josh Coman or others of his ilk happen to move into their neighborhoods.  If the state regularly notifies residents about who is on the list and where they live, people will be empowered to protect their pets... and to advise their children not to wear dog costumes come Hallowe'en.

Sheer Loveliness

A new Naxos CD release has me straining for superlatives to describe it.  Titled "French Flute Chamber Music," it presents a bit more than one hour of pieces for a chamber ensemble comprising flute, harp, and three string players.  They go collectively as Mirage Quintet, but I'm uncertain whether this is an ad hoc ensemble put together for this recording or a group of soloists who regularly come together for chamber music.  Some of the individual names are familiar, especially flute player Robert Aitken, who has made many solo recordings, and violinist Jacques Israelivitch.  The other musicians are harpist Erica Goodman, who has made her own recordings, violist Teng Li from the Toronto Symphony Orchestra, And cellist Winona Zelenka, who is also temporarily affiliated with the Toronto SO as Acting Principal.

The program is eclectic but all of a piece - that is, all the French composers here write in a style similar enough that sitting through the entire disc without a break is not recommended.  This music does best if the disc is heard in stages.  But each piece on its own is stunningly beautiful, and there is at least one composer discovery - Marcel Tournier, of whom I had not previously heard, and whose Suite leads off the disc with style.  The other, more familiar, names are Florent Schmitt, Gabriel Pierne, Jean Francaix, and Albert Roussel.  Maybe not household words among more casual classical music fans, but reasonably well known to the more dedicated listeners.  And each is represented by an excellently made, beautifully arranged piece.  This sounds like it will be compulsive listening for me.  Great for the iPod!

PS - Another Naxos recently heard for the first time, and another composer discovery, is a disc by Dmitry Yablonsky and the Russian Philharmonic Orchestra in the label's Japanese Music series, the first Symphony and two shorter pieces by Komei Abe (1911-2006).  I'll make no claims that this is really deep, philosophical music.  Rather, it is pure entertainment, beautifully orchestrated with listener-friendly harmonies and catchy melodies.  I think it would go over big on a Boston Pops concert program.  The Japanese Music series has been full of discoveries -- where have all these talented composers been hiding the past century? -- and this is definitely one of them.

North Carolina Appeals Court Rejects Challenge to Second-Parent Adoption, Affirming Co-Parent Custody and Visitation Award

The Court of Appeals of North Carolina ruled on August 18 that a second-parent adoption was not void, even though its legality might have been questioned in a direct appeal of the adoption order, and thus could not be challenged in a subsequent dispute over custody and visitation between former same-sex partners. The court affirmed a decision by Judge Lillian B. Jordan of New Hanover County District Court granting joint legal custody and awarding liberal visitation rights to the adoptive parent in Boseman v. Jarrell, 2009 WL 2601629.

The parties, Julia Catherine Boseman and Melissa Ann Jarrell, began their relationship in 1998, living together as domestic partners, and "from the beginning, the two discussed their desire to have a child," according to the appeals court opinion by Judge Wanda G. Bryant. Jarrell gave birth to their son, conceived through donor insemination, in October 2002. In May 2005, Jarrell filed a motion with the Durham County District Court Clerk for a "Waiver of Statutory Provisions by Biological Mother." In the motion, Jarrell requested that the court waive the requirement that a biological mother’s parental rights be terminated if the child was adopted. A Durham County judge granted the motion and ruled in favor of adoption of the child by Boseman, so that both women would be legal parents of their son.

However, over the next two years the women spent more and more time apart, not so surprising when one considers Boseman’s developing political career as an openly lesbian state senator. (Boseman was first elected in 2004 and is now serving her third term in the North Carolina Senate.). "Despite Jarrell’s acknowledgment that Boseman ‘is a very good parent who love[d] [the child]’ and whom the child loved in return," wrote Bryant, "Jarrell limited Boseman’s contact with the child." Boseman then turned to court, filing suit in New Hanover County District Court seeking joint custody, requesting that Jarrell retain primary custody and that Boseman have "liberal and extensive visitation." Boseman relied, of course, on the fact that as an adoptive parent she would have all the rights of a legal parent to custody and care of her child.

Jarrell responded with the argument that the adoption should not count in this forum because, she argued, North Carolina’s adoption statute does not authorize adoption by same-sex partners, and seizing upon the alleged refusal of the state’s Department of Health and Human Services "to index the non-stepparent adoption decree on this State’s permanent retention system," Jarrell argued that the adoption was void from its inception, and Boseman should not be entitled to seek custody or visitation with the child.

The trial judge took the position that the New Hanover County District Court lacked jurisdiction to entertain any attack on the adoption, which had been approved by a judge in Durham County, and proceeded on the merits to find that joint custody and visitation rights for Boseman were in the best interest of the child. Jarrell appealed.

The Court of Appeals rejected Judge Jordan’s conclusion that she did not have jurisdiction to inquire into the validity of the adoption, but concluded nonetheless that the adoption was not void. According to the Court of Appeals, once an adoption decree is granted by a court having proper jurisdiction over the parties and the subject matter, it can only be subjected to judicial review in a direct appeal of the adoption decree. Collateral attack in a subsequent proceeding is not allowed. Thus, the adoption is not void, although it might have been voidable. Thus, the Court of Appeals did not directly pass judgment on the device of the motion for waiver as a means of getting around the structure of the North Carolina adoption statute to accommodate a second-parent adoption, unfortunately. On the other hand, departing from the view taken by courts in some other jurisdictions that have refused to grant second parent adoptions on the ground that adoption statutes must be strictly construed as being in derogation of common law, this court took the view that ultimately the purpose of the adoption statute is to provide for the best interest of the child, and to that end this adoption was consistent with the purposes of the statute..

Judge Bryant seized upon the arguments that Jarrell had made in her waiver motion, pointing out that the purpose of the provision terminating parental rights was to protect the child’s former parent against any legal responsibilities or claims, and thus appropriate for waiver by the biologial mother, and noting further that "Jarrell herself makes this point in her motion for waiver to the adoption court where she notes that the waiver will avail the minor of additional health and governmental benefits, as well as provide stability and ‘a legal framework for resolving any disputes regarding custody or visitation that may arise after the adoption.’" It was strange that now Jarrell should be arguing that the adoption should not serve that very purpose. "This is exactly the end achieved by the adoption in this case," wrote Bryant. "Following unforeseen circumstances, namely the end of the parties’ domestic partnership, the minor’s interests, both financial and emotional, are protected. Because of the adoption here, the minor will still be entitled to the support and care of the two adults who have acted as his parents and they will both remain fully obligated to his welfare."

The court found that this result was consistent with the primary purpose of the adoption statute. These parties planned the conception and birth of the child, Bryant noted, and had both acted in a parental capacity. Bryant observed that the adoption statute itself provides that the needs of minor adoptees should be "primary" in relation to the rights of any adults, and that the statute itself provides for liberal construction "to promote its underlying purposes and policies."

The court treated as irrelevant the fact that the litigants are a former same-sex couple, indicating that the same result would arise were they an unmarried different-sex couple. "While acknowledging that such issues are matters of great public interest and of personal significance to Boseman and Jarrell," she wrote, "we emphasize that the specific nature of the parties’ relationship or marital status was not relevant to resolution of the instant appeal. The same result would have been reached had the parties been an unmarried heterosexual couple. While Chapter 48 does not specifically address same-sex adoptions, these statutes do make clear that a wide range of adoptions are contemplated and permitted, so long as they protect the minor’s ‘needs, interests, and rights.’" Is this an intimation that the court would look favorably on second-parent adoption petitions without the need for a waiver petition?

Having decided that the adoption should be treated as valid, the court upheld the trial court’s conclusion that Boseman had standing to pursue custody. Bryant observed that "the trial court’s other conclusions, namely that Boseman is a parent of the child based on the adoption decree and that both Boseman and Jarrell are fit and proper persons for custody of the child, fully support its custody award." The question remains whether Jarrell will attempt to appeal this unanimous ruling to the North Carolina Supreme Court.

N.Y. Appellate Division Limits Scope of Disclsoure of HIV-Related Patient Information in Medical Misconduct Investigation

A unanimous five-judge panel of the New York Appellate Division, First Department, has ruled that a subpoena seeking the full medical records of nine patients of a doctor being investigated on misconduct allegations by the State Board for Professional Medical Conduct (BPMC) may be complied with, initially, by redacting information identifying the individual patients and other people mentioned in their files, and relating their individual sexual practices, in order to balance the privacy concerns of patients protected under New York HIV Confidentiality Law, Public Health Law Article 27-F, with the legitimate investigative needs of the Board. The ruling in Anonymous v. New York State Department of Health, 2009 WL 2590085, 2009 N.Y. Slip Op. 06294 (Aug. 25, 2009), is apparently a ruling of first impression, since the court cites no prior authorities and reaches its conclusion by reference solely to statutory language and legislative intent.

The court’s memorandum opinion is not attributed to any one of the members of the panel, which was comprised of Presiding Justice Mazzarelli and Justices Sweeny, Nardelli, Freedman and Richter.

According to the opinion, the Board received certain complaints concerning the doctor, who specializes in treating HIV+ patients, sufficient to merit investigation. As part of that investigation, the Board wrote to the doctor, requesting the medical and billing records of nine of his patients. The doctor’s lawyer responded with a letter to the Board raising confidentiality concerns and seeking guidance "to assure that he did not act in violation of the Public Health Law," which affords certain confidentiality protections to HIV+ patients. The doctor also contacted his patients, asking if they would authorize release of the records, but none of them consented to release of their records. The Board responded by issuing a subpoena, demanding production of all records of the nine patients. The doctor responded by filing this action, arguing that the Board’s request did not fall within any of the exceptions specified in the confidentiality law.

The New York County trial judge, Justice Nicholas Figueroa, ruled in favor of the Board, ordering release of the records. Justice Figueroa took the position, as summarized in the Appellate Division ruling, that "a physician may not invoke patient privacy rights to shield himself from a misconduct investigation," and that the Board had "demonstrated a foundation" for issuing the subpoena by submitting the complaints it had received to the court for in camera inspection.

While the Appellate Division agreed that the Board has a right to subpoena evidence relevant to its investigation of the complaints against the doctor, nonetheless it determined that in light of the confidentiality law, the doctor should not be required to release the complete patient records without taking some steps to protection the privacy of his patients. "In recognition of the need for confidentiality in this matter," wrote the Appellate Division panel, "any disclosure order must provide for redactions of material that is not necessary for the conduct of the investigation and must otherwise comply with section 2785(6). At this preliminary stage," the court continued, "the redacted material would include the names and identifying information of the patients whose files are sought (their files can be identified by code), as well as the names and identifying information of other individuals whose names might appear in the file. We caution, however, that the redaction of the names at this stage of the investigation should not be construed to mean the names are to be permanently redacted. There may be a point in the future when the needs, or the results, of the investigation warrant disclosure of certain identities to the OPMC by court order. Respondent also proffers no reason why personal information such as sexual history should be disclosed."

The court noted an "anomaly" in the confidentiality statute, an apparent and unexplained internal contradiction. While imposing various confidentiality standards on court orders to release HIV-related information, the statute also states "service of a subpoena shall not be subject to this subdivision." Does that mean that the confidentiality law is totally preempted by any other statute that confers authority to subpoena records or information? In light of the legislature’s concern to protect the confidentiality of HIV patients, the court was not willing to go to that extreme. Indeed, rather in the other direction, the court ordered that "each of the nine patients whose files are being sought shall be given the opportunity before the court to submit any objections to the release of certain information in his or her file, and to request appropriate redactions. In weighing such objections," the Appellate Division concluded, "the court must be mindful to balance the patients’ privacy concerns with the nature of the investigation itself, which involves serious allegations."

Due to the same confidentiality concerns, the court did not give any specifics of the charges against the doctor, and also granted the doctor’s motion to change the name of the case "to reflect anonymity," a decision that the state did not oppose.

The doctor is represented by attorneys Robert L. Schonfeld and Benjamin Giezhals of the Garden City firm of Moritt Hock Hamroff & Horowitz LLP, and the state is represented by attorney Richard Owen Jackson from the New York State Law Department. Lambda Legal participated in the appeal as amicus curiae, with a brief offered by Thomas W. Ude, Jr.

Back to Square one for California DOMA Challenge

The Associated Press is reporting that U.S. District Judge David O. Carter has granted the federal government's motion to dismiss the pending lawsuit of Smelt v. United States (U.S.Dist.Ct., Central Dist. Calif.) on the ground that the court lacks jurisdiction to hear the case.  The lawsuit claims that the federal Defense of Marriage Act is unconstitutional, reciting a litany of constitutional provisions.   Judge Carter reportedly accepted the government's argument that because the case was originally filed in state court, it must be dismissed on the ground that the state court has no jurisdiction to hear suits against the federal government seeking declarations that federal statutes are unconstitutional.  (The case ended up before Judge Carter because the federal government's response to the filing of the complaint was to remove the case to federal court, then to move to dismiss it.)   Of course, the federal court would have jurisdiction over such a claim as an original matter, and Judge Carter pointed out as much, indicating that the dismissal is without prejudice to the plaintiffs' right to refile the case as a federal lawsuit.  This means that, at most, there will be a delay rather than an abandonment of the case, because Richard Gilbert, the plaintiffs' lawyer, announced that the suit will be refiled in federal court.

Gilbert is representing Arthur Smelt and Christopher Hammer, a longtime couple who originally filed a federal suit challenging the constitutionality of DOMA many years ago.  That suit came to grief when the U.S. Court of Appeals for the 9th Circuit ruled that they lacked standing to challenge DOMA because they were not married when that lawsuit was undertaken.

DOMA has two operative provisions: Section 2 says that no state is obligated to give full faith and credit to same-sex marriages performed in other states.  Since the Smelt-Hammer couple was not married, this provision did not adversely affect them in any way.  Section 3 says that the federal government will not treat same-sex couples as married for any purpose, even if they are legally married under the law of a state.  (When DOMA was passed in 1996, no state permitted same-sex couples to marry, so this was entirely hypothetical.)  Since the Smelt-Hammer couple was not married, again, the court said they were not adversely affected by the law.  In order to have standing in federal court, a plaintiff must present a "real case or controversy," not a hypothetical case.  Thus, court said that only a married couple could challenge DOMA.

In May 2008, the California Supreme Court ruled that same-sex couples had a right to marry under the California constitution. The ruling went into effect in June 2008, and over the summer of 2008 Smelt and Hammer got married.  Then the public narrowly voted in November 2008 to amend the California Constitution to end the right of same-sex couples to marry there.  A legal challenge was filed to this amendment (Proposition 8), but it was upheld by the California Supreme Court.  However, that court said that Prop 8 was not retroactive, and that the marriages that took place during the period June-November 2008 prior to its enactment remained valid.  Thus, for purposes of California law, Smelt and Hammer are validly married. 

They filed their new lawsuit in December 2008, claiming that now as a married couple they were entiled to challenge the constitutionality of DOMA.  But they filed their lawsuit in state court, because the federal court was unwilling to waive the normal filing fees and the couple, who are disabled and have limited resources, did not want to pay the federal court fees.  One wonders what their attorney, Richard Gilbert, was thinking in filing in state court.   State courts do not have jurisdiction over claims against the federal government, which has only waived its sovereign immunity in specific kinds of cases to be heard in the federal court system.  I'm not sure exactly why the Justice Department did not promptly move the state court to dismiss the case on jurisdictional grounds (could it be that Justice just refuses to get involved in litigation in state courts, even if it just involves a motion to dismiss an errant complaint?), but in any event they removed it to federal court and then moved to dismiss it on jurisdictional grounds, also making the argument (unnecessary and, unfortunately, quite provocative) that DOMA is constitutional.  (In my opinion, they are wrong as to the constitutional argument, but I agreed with their jurisdictional arguments.)  Indeed, their brief in support of the motion was so provocative on the merits that it threatened to alienate gay supporters of the Obama Administration.  The President then made nice at a Gay Pride reception at the White House, and when the government filed its reply brief to the plaintiffs' responsive brief on the motion, the White House issued a statement reiterating the President's commitment to repeal DOMA.

This dismissal is merely a speed-bump, since clearly the federal district court would have jurisdiction over a case filed directly in that court.  Furthermore, at the very least I think it should be possible for Smelt and Hammer to file a suit that appropriately alleges some deprivation of rights under federal law attributable to Section 3 of DOMA. (In support of its dismissal motion, the Justice Department argued that an alternative ground for finding lack of standing was the failure to allege in the complaint with any particularity that Smelt and Hammer had actually been adversely affected by DOMA.)   It might be more difficult for them to assert a claim against Section 2, in part because - at least this is my belief - Section 2 does not have any real operative force and is purely symbolic, as the states have always had the right to refuse to recognize marriages that violate their public policy, so if Smelt and Hammer were to travel to another state and demand some form of recognition, Section 2 of DOMA would not be the reason they are turned down.

The Retributionists - a new play in previews

This afternoon I saw a preview performance of a new play by Daniel Goldfarb, "The Retributionists," at Playwrights Horizons, an off-Broadway venue on West 42nd Street in Manhattan.  Leigh Silverman directed a cast of seven.  

Since this was a preview of a play that will open officially on September 14, I really should not say too much about the quality of the performance, which I expect will receive some tinkering from the director and cast between now and the opening.  And I shouldn't drop lots of plot spoilers, either, so I'll just give the general concept here. 

During World War II, a group of Jewish ghetto refugees are hiding out in the woods as partisans, raiding Nazi targets, when their leader has the inspiration to hold them together - a determination that when the war is over, they will bring about retribution against the German people.  This is depicted in a flashback scene at the beginning of the second act.  The play itself mainly concerns the attempted execution of the retribution scheme in 1946, in the context of strained and interrelated emotional attractions and repulsions of the four leading characters, who are played by Margarita Levieva, Adam Rothenberg, Cristin Milioti, and Adam Driver, in order of appearance.

I don't care for the use of the delayed flashback scene here.  I like my stories to be told in chronological order - I'm just old-fashioned that way.  The flashback scene does add something in terms of fleshing out the characters and their relationships, but almost all of it has been signaled during the first act, so in some sense it seems superfluous.  I also thought that the second act was too long, and jettisoning this flashback scene - while building in necessary elements of it elsewhere - would help to tighten things. Perhaps it could even be placed at the beginning of the first act, in chronological order.  That would make the balance of the first act much more comprehensible.  I also found my attention wandering during the bakery scene in the second act.

The four leads all undoubtedly have plenty of work to do on their characters between now and the opening, but I found in particular the character of Jascha, played by Adam Rothenberg, to be pretty well formed at this point.  Mr. Rothenberg has a striking physical presence.  I was interested to see that the other male lead, Adam Driver, was just in another off-Broadway show, which I saw at Rattlestick Theater several weeks ago, "Slipping," in which he was really marvelously effective, and I imagine by the time "The Retributionists" opens, he will have sharpened his role considerably.  This role is quite different from the one he played in the other show, and at first I didn't even recognize him as the character is so different.  The two female leads were, I thought, less far along than the male leads in figuring out and inhabiting their characters, but it is early days with three weeks to opening...

The plotting is a bit convoluted at times, in terms of emotional interrelationships, and some plot twists in the second act left me a bit puzzled at first.  Maybe playwright Goldfarb still has some revising to do as well.  The production seemed effective - sets, lighting, costumes - and the three supporting roles in the second act were well taken.

I think this is likely to shape up into something interesting, and I recommend seeing it a bit closer to opening, if not soon thereafter.  Certainly it is thought-provoking, and considerable dramatic tension is generated at key moments.