Leonard Link

New Ruling in Stern-Cosby Defamation Case

Last month, U.S. District Judge Denny Chin determined that falsely calling somebody a homosexual is not "per se" defamatory under New York law, so a plaintiff suing for such a statement would have to allege "special damages" (i.e., pecuniary injury) in order to survive a motion to dismiss. In his deposition in the case at hand, Stern v. Cosby, plaintiff Howard Stern, former lawyer and intimate partner of Anne Nicole Smith, did not allege special damages, as he was pursuing the case on a defamation "per se" theory. Responding to the court’s ruling that Stern would have to show special damages and Stern’s failure to make the necessary allegations, defendant Rita Cosby, author of the book that is the basis for the lawsuit moved for reconsideration of the ruling. A logical move, but one that seems to have backfired, as Judge Chin has now issued a new ruling on the motion, finding that the statements in the book that Stern is challenging relative to this point are actually libelous per se under New York law!

In the new opinion, issued on September 25, Judge Chin commented that in reaching the conclusion that Stern would have to allege special damages to maintain his claim regarding the homosexuality allegations, "I focused solely on the issue of whether calling a person a homosexual is libelous per se, and I held that it was not." On this new motion, however, Stern argued that the actual statements in the book that he was contesting were themselves libelous per se, "even assuming statements imputing homosexuality are not libelous per se," and Judge Chin agreed with him.

The analysis begins with the question whether the "per se" defamation categories apply only to slander (spoken defamation), or also to libel (written defamation), and whether the "per se" categories are limited to the traditional four categories generally identified by the New York Court of Appeals in past cases. Under traditional old common law rules, all written statements that could be considered injurious to the reputation of the person about whom they were made were considered per se defamatory, but spoken statements were not unless they fell into one of a handful of categories that were deemed particularly harmful. Stern argued that because the statements he challenged were written in a book, they should be presumed defamatory. But, as Judge Chin notes, the New York courts have more or less disregarded the distinction between spoken and written defamation in their modern analysis, and have restricted "per se" defamation to the most egregious cases, regardless whether spoken or written, so Stern’s argument on this point was not accepted.

However, Chin accepted Stern’s argument that the "per se" designation should not be restricted to the four traditional categories, summarized by Chin as "(1) those that accuse the plaintiff of a serious crime; (2) those that ‘tend to injure’ another in his or her trade, business or profession’; (3) those that accuse the plaintiff of having a ‘loathsome disease’; or (4) and those that impute ‘unchastity to a woman.’"

Chin points out, for example, that lower New York courts have routinely over recent decades ruled that a false imputation of homosexuality was defamatory per se, even though it has not fit into any of those categories since 1980, when the New York Court of Appeals declared the state’s sodomy law unconstitutional. Furthermore, he ruled, "limiting libel per se to these four categories is inconsistent with the rationale behind per se defamation. The reason the law dispenses with the special damages requirement in some cases is because certain statements are considered so inflammatory and offensive that the law presumes the statements to have caused damage. . . It is inconsistent with this rationale to say that only statements within the four categories can be so inflammatory and offensive that damages will be presumed, particularly because there is no principled reason why the rule only applies to these four categories."

Thus, Judge Chin found that under New York law, "libel per se is not limited to the four categories," and a statement would be libelous per se "if the statement is so severe that serious injury to the plaintiff’s reputation can be presumed." Having adopted that formulation, he found that the statements challenged by Stern clearly met that test. The statements in question "accuse Stern of (1) having sex with Smith’s boyfriend; (2) making a video of himself having sex with Smith’s boyfriend; (3) promiscuity; and (4) infidelity." Chin found that these statements "so clearly expose Stern to ‘hatred, contempt or aversion, or [so clearly] induce an evil or unsavory opinion of him in the minds of a substantial number of the community’ that serious injury to Stern’s reputation can be presumed." Thus, he does not need to allege or prove special damages.

In an alternative ruling, Chin pointed out that these statements also fell within one of the traditional four categories, of words that "tend to injure another in his or her trade, business or profession." Observed Judge Chin: "The Statements portray Stern as a lawyer who would have sex with his client’s boyfriend - on video. Potential clients would, presumably, not want to have a lawyer who slept with his client’s significant other. Moreover, serious questions as to an attorney’s duty of loyalty to his client surely are raised when the attorney has a sexual relationship with his client’s significant other. In such an instance, an attorney could face a substantial conflict of interest, as he could be motivated to protect the interests of his client’s spouse instead of his client’s. Even assuming such conduct is not unethical, it is certainly unprofessional and ill-advised." Thus, as a matter of law, on either theory, the statements would be treated as per se defamation.

This reduces the burden on Stern at trial. He has to show that the statements were false, and made with actual malice, but he need not prove that they caused him pecuniary harm, as injury to his reputation will be presuemd.

Federal Judge Dismisses Tort Claims Against Florida Hospital and Staff Who Failed to Accord Compassionate Treatment to Life Partner of Dying Lesbian

What is one to make of U.S. District Judge Adalberto Jordan’s decision of September 29 in Langbehn v. The Public Health Trust of Miami-Dade County, No. 08-21813-CIV-JORDAN (U.S.Dist.Ct., S.D.Fla.)? Perhaps that there is not necessarily a legal remedy for every wrong, for Judge Jordan’s conclusion says that what the hospital did in disrespecting the relationship of a lesbian couple in a time of medical emergency "exhibited a lack of compassion and was unbecoming of a renowned trauma center," but, on the other hand, that no legal relief was available for these failings.

This case involves the sad and now-much-publicized story of Janice Langbehn and Lisa Marie Pond, longtime partners who in their twentieth-anniversary year, 2007, went with their children to Miami to embark on a Caribbean cruise. They never made it to sea, because Pond collapsed aboard ship and was rushed to Ryder Trauma Center at Jackson Memorial Hospital in Miami. Thence began the nightmare for Langbehn and the children, as they were at first treated as virtual strangers to Pond, denied access and information as she was struggling for her life in the trauma center. Langbehn claims that a hospital social worker said to her they she should not expect any information or access because they were in an "anti-gay city and state."

At about the time that Ryder doctors diagnosed an aneurysm as the cause of Pond’s trouble, a fax arrived at the hospital containing Pond’s power of attorney designating Langbehn to act as her guardian and to make medical decisions, and this was filed in Pond’s hospital record, but nobody informed Langbehn that it had arrived. It was not until almost an hour later that doctors first consulted with Langbehn, who consented on Pond’s behalf to the placement of a brain monitor, and more than a half hour later, Langbehn received her first real briefing from the doctors, with Pond’s parents on speaker-phone. At that time the doctors learned that Pond’s condition was inoperable, and Langbehn told them that Pond was a designated organ donor. She also asked if she and the children could see Pond now that medical efforts were being abandoned, but they continued to be excluded for forty more minutes, when they were finally allowed to accompany a priest who was there to administer last rites of the church to Pond. They were hurried back out after five minutes.

Langbehn kept asking to be able to see Pond, but all her requests were denied until after Pond was transferred from the trauma center to the intensive care unit hours later, and finally Langbehn and the children were allowed to visit. Pond passed away soon thereafter. Langbehn asserts that relatives of other patients were being given access to their loved ones in the trauma unit while she was forced to sit without any information or access to her life partner for prolonged periods of time. Surely, a legal spouse would not have been treated in this way.

Langbehn was distraught at the loss of her partner and at the way she was treated, went to Lambda Legal with her grievances, and the lawsuit eventuated. The problem for Lambda Legal was to somehow fit into the categories of civil liability the harms that Langbehn had suffered (and that Pond and the children suffered as well) from the hospital’s failure to recognize their relationship in this time of extreme emergency.

Judge Jordan found that these attempts to fit the various claims into the categories recognized by the law were unsuccessful. Part of the problem is that claims for harm have to fit into the formulas of tort law that are particularly demanding of the plaintiff, especially a plaintiff who is not in a direct contractual relationship with the parties she is suing. In order to recover in a tort proceeding the plaintiff must show that the defendant has violated some duty to the plaintiff, and that the violation caused an injury to the plaintiff. In the context of a hospital, it is common to find a duty to patients, but much more difficult to establish any sort of legal duty to the family and friends of plaintiffs.

Langbehn argued that the response of the hospital and various individual employees – the social worker, the doctors – was negligent, inflicting emotional distress on Langbehn, Pond and the children, and Langbehn presented allegations that this distress manifested itself, at least in her case, in physical symptoms. In addition, she tried to allege "per se tort," a claim that the hospital’s conduct should subject it to liability without meeting any of the more specific tort theories, on the argument that it was harmful conduct that does not meet acceptable social standards.

While Judge Jordan professed sympathy in his final lines, the bulk of the opinion is devoted to a decisive repudiation of every theory for relief that Langbehn advanced. The hospital has no duty to relatives of patients to afford access, wrote Jordan, and he could find no basis in Florida tort law for characterizing the relationships in this case as "fiduciary" relationships. Neither did he find that the conduct of the hospital and its employees was so extreme and outrageous by comparison to other Florida cases that the demanding test for "intentional infliction of emotional distress" could be met in this case.

While acknowledging that Langbehn, as the designee of a medical power of attorney that was promptly faxed to the hospital, did have rights that must be respected under Florida law, the court found that those rights had, at least minimally, been respected. Although certain personnel were callous and unfeeling and blocked Langbehn from the degree of access that would have been humane and compassionate, the court found that doctors did consult Langbehn more than once, and that the complaint failed to specify what decisions Langbehn could have made that would be any different from the care that was provided.

Jordan observed that although Florida has a patient bill of rights statute, it is not applicable to this lawsuit because there was no plausible allegation of violation of Pond’s rights, and as the "patient" in this case, she was the only one with rights under the statute. Jordan also noted that these Florida statutes specifically do not authorize private law suits for their enforcement.

Reading this opinion is a heart-sinking experience. Some of that is because it shows the limitations of tort law in dealing with realities of modern life. At the same time, one can imagine a judge more inclined to find some theoretical basis for redress when the hospital’s conduct is, in the judge’s few, censurable but not legally actionable, but even if such a friendly trial judge were to be found, any sizable damage award would be subject to appeal.

Langbehn and her lawyers, having suffered dismissal of the case, have a few weeks to decide whether to seek appellate review of this ruling.

The Original Star Trek

Inspired by the enjoyable new Star Trek movie, I resolved to acquire the DVD release of the original 1960s television series, which was recently released in a newly-remastered edition with lots of extra material.  Almost 80 original episodes from the 3-year run give plenty of viewing pleasure.  It took me the entire summer to get through the set, but it was worth it.  This was high quality science fiction, and it is so interesting in retrospect to note scientific advances that the series' creators anticipated back in the 1960s, and to marvel once again at some of the superb character development.  Has there ever been a more intriguing character in a continuing series than Mr. Spock?  Leonard Nimoy's creation and development of that character is without peer.  William Shatner's Captain Kirk is also quite memorable, although I found his acting much less subtle than Nimoy's.  DeForest Kelley as Dr. McCoy was an enjoyable caricature, as was James Doohan's Scotty.  I have a soft spot for George Takei's Ensign Sulu, who was the sexiest member of the original cast, and, from the second and third seasons, Walter Koenig's Pavel Chekov.  Nichelle Nichols was underused as Lt. Uhura; I think if they were making that series today they would have given her a more prominent role, and there would have been one or two more women on the bridge of the Enterprise.  (The pilot show featured a woman as first officer, but network honchos of the 1960s doubted this would be believable, so the actress in question was reduced in rank to being a nurse in the sickbay when the regular series was launched and Mr. Spock was given the double role of first officer and chief science officer.) 

Seeing all three seasons in rapid succession also brought forcefully to attention the sharp decline in quality for the third season.  The network slashed the budget for the show and put it into the death slot - late Friday nights when viewership and thus sponsorship is lower - so they didn't have the same resources for sets and writers and script continuity suffered as well.  I've now begun the trek through the feature motion pictures, beginning with the famous "trilogy" of Star Trek II, III & IV.  I have to say that Shatner's work was much improved over the TV series in this larger format, and some of the supporting players were given much more to do, especially Koenig as Chekov.  The two films directed by Nimoy are terrific, especially Star Trek IV with its hilarious scenes set in late 20th century San Francisco.

In retrospect, a great opportunity was lost when the original cast was disbanded and the series suspended after three seasons...  But at least we have the treasure of those almost 80 episodes, now preserved in digital format (and the first season alternatively in HDVD).  Great care was taken over this remastering.  The color and definition are striking considering the source materials are from 40 years ago, during early days of color TV, and they have refurbished the soundtrack quite beautifully - voices are clear and well-defined, with a stereo rerecording of the theme music for opening and closing in digital stereo.  Any Star Trek fan without this should be eager to acquire it, even if they have earlier releases of this material.

NY Philharmonic - The Gilbert Era Begins, for me....

The era of Alan Gilbert's music directorship at the NY Philharmonic began September 16, but for me it began tonight with my first subscription concert of the season.  Maestro Gilbert led an all-German program of Brahms' Violin Concerto (with German violinist Frank Peter Zimmermann) and Schoenberg's Pelleas und Melisande.

Before discussing the music, I wanted to note an important development in the orchestra's history, the appointment of Amanda Stewart as Associate Principal trombone.  Women play a major role in this orchestra, and actually constitute a majority of the string players, with many women among the woodwinds as well, but it is possible that Ms. Stewart is the first woman with a permanent position among the brasses.  I'm not 100% sure of this, but I can't recall any precedent in this orchestra for a woman among the brass players.  For long-time symphony watchers, this will be yet another breakthrough at one of the foremost orchestras in the world.  (Vienna Philharmonic, cry from shame....)  And it is gratifying to observe this development.  I have the DVD set of the Toscanini/NBC Symphony TV broadcasts from almost 60 years ago, at which time no women could be found in major symphony orchestras apart from an occasional harp player.  I also have the DVD set of Bernstein's NY Philharmonic Young People's Concerts, and the early concerts from Carnegie Hall in the 1950s also show an orchestra with no women visible.  In the "old days," it was considered unsuitable for women to play in the orchestras because rehearsals were rough occasions on which there was lots of swearing and cursing - mainly from the podium.  (Toscanini was the exemplar here, swearing in multiple languages at the drop of a wrong note on bad days, stomping on eyeglasses, breaking batons, etc.)  I suppose today's young conductors are much more polite! 

And, to the concert, which was magnificent, a warm and lyrical Brahms concerto, with plenty of swagger in the finale, followed by a surprise - Mr. Zimmermann treated us to an encore by Paganini, a set of virtuoso unaccompanied variations on "God Save the Queen." 

Then the sumptuous Schoenberg.  Maestro Gilbert introduced the piece from the podium with a short illustrated lecture, demonstrating principal themes and their combination at dramatic moments.  This was interesting, and perhaps helpful in getting doubtful listeners to suspend judgment and enter into the spirit of the piece.  (After all, the very name of Schoenberg usually inspires consternation in the typical concert-goer, although it needn't for these early tonal works.)  I didn't find it helpful to me, because I found these themes inadequately memorable on their own to retain them through the 45 minute work.  I've always found this one to be a diffuse rambler, and found this performance little different in that regard.  But it is a sumptuous orchestral spectacular, the soloists shined, the strings heaved with romantic ardor, and the ending felt quite moving.  Conductor and orchestra earned their final ovations.

A bit surprisingly, the orchestra has scheduled an extended Asian tour for October, so no sooner is the season launched than they will disappear for several weeks.  I picked up a single ticket for next Saturday's concert, since I didn't want to miss the opportunity to hear a live performance of Ives' 2nd Symphony (not frequently enough played in this parts - it should be in the standard rep at the NYP, after all, since the orchestra gave its world premiere and two memorable recordings under Leonard Bernstein's leadership) and also the new work that Magnus Lindberg wrote for the opening night concert and which is being thoughtfully offered to subscription audiences next week.  Then they're off, not to be heard from until November.

The NY Court of Appeals' 4-3 Ruling on Power of the Governor to Appoint a Lieutenant-Governor

I had not planned to blog about this decision, announced yesterday, in Skelos v. Paterson, NYCA No. 183 (September 22, 2009), but after I finally had a chance to read both the majority and dissenting opinions this afternoon, I just could not refrain because, to my surprise, I initially found both opinions to be very persuasive, each on its own terms.

The issue, simply stated, is that the New York State Constitution seems at first reading to be oblique on the subject of what happens when the office of lieutenant-governor falls vacant.  That position seems to have little significance or consequence in the scheme of New York State government, as the holder of the office has but two duties: to preside over the Senate and cast tie-breaking votes on a few selected procedural issues, and to wait in readiness to assume the governorship should that position become vacant.  The Constitution provides that if the position of lieutenant-governor itself becomes vacant, its duties will devolve upon the temporary president of the Senate, an officer who is elected by a majority of the Senators from among their number.  But it does not provide in so many words that the office itself will devolve upon that individual, just the duties of the office; that is, it does not say that the acting president of the Senate will become the lieutenant-governor, just that that designated official will perform the duties of the lieutenant-governor.  And, by providing that the governor and lieutenant governor are elected as a team every four years, the constitution effectively rules out a special election for the position of lieutenant-governor.  (This makes sense as a practical matter, if one believes that it would not be a good idea for there to be the possibility that a person could be elected in such a special election who comes from a different political party than the governor; such a view is part of the legislature history of the provisions governing the simultaneous election of these officials.) 

The Constitution also specifically states that "the legislature shall provide for filling vacancies in office," and, as Chief Judge Lippman notes in his opinion for the court, "expressly contemplates that vacancies in elective office may be filled by appointment."  The legislature has responded to this command by adopting three provisions of the Public Officers Law of New York, sections 41, 42, and 43.  Section 41 establishes a procedure for the legislature to fill vacancies in the offices of attorney general and comptroller, which are elected positions in New York.  The governor, who is separately elected from those office-holders, does not appoint these replacements; they are selected by the legislature.  Section 42, which is titled "filling vacancies in elective offices," provides for special elections depending on when the vacancies occur, and allows for the governor to appoint a temporary replacement for a U.S. Senator.  Section 42 expressly provides that it does not apply to the offices of governor and lieutenant-governor.  Thus, if those positions fall vacant, there is not a special election to fill them.  Section 43, the so-called "catch-all" provision, is titled "filling other vacancies" and provides that for any other elective office that becomes vacant prior to the end of its designated term, where no other provision of law dictates how it is to be filled, the Governor SHALL appoint a person "to execute the duties thereof until the vacancy shall be filled by an election."

The majority and dissenting opinions provide two road maps through this interlocking constitutional and statutory scheme, both of which strike me as plausible on some level.  The majority says that the position of lieutenant-governor falls under Sec. 43 by default.  It is clearly an elective office.  No other provision of law specifically provides for filling the position if it falls vacant -- or so the majority contends -- and thus, because elsewhere the Constitution prohibits special elections to fill this position, then the Governor "shall" appoint somebody "to execute the duties thereof."  

But, the dissent argues, there is another provision of law specifying how this position is to be filled -- the Constitution, which specifically provides that upon a vacancy in the lieutenant-governorship, the temporary president of the Senate "shall perform all the duties of lieutenant-governor."  By this reading, the Constitution intends that such a vacancy not be filled as such, but rather that its duties are to be performed for the remainder of the term by a Senator selected by his or her peers for that purpose.  

And yet, clearly, lieutenant-governor is an elected office, and Sec. 43 clearly provides that the Governor "shall appoint" somebody to "execute" the duties of that office.

Does it make any different that the Constitution says "perform the duties" and the statute says "execute the duties"?   Who knows?  Is it "clear" that the Constitution "intends" that the duties be performed but that the office remain vacant?  If so, then Sec. 43 is unconstitutional to the extent that it appears to authorize the Governor to appoint, since the Constitution directs that the Senate select the person who is to perform these duties, and the legislature has exceeded its constitutional mandate by providing that the Governor is to appoint.  Surely, one might argue in support of the dissent, the Constitution takes priority over a statute?   But, on the other hand, one might argue that "perform" is in some sense a weaker word than "execute," so the Constitutional "intent" is that the Senate is designating a "temporary" person to "perform" the duties until the Governor can "appoint" somebody to "execute" them....  The argument is also made that what the framers of Sec. 43 intended by reference to "other elective offices" was lesser offices that might fall vacant and that would need to be filled because they involved real executive duties, as opposed to the largely ceremonial duties of a lieutenant-governor.  Thus, a district attorney needs to be replaced so that there is somebody in the county with the official final authority to enforce the laws in that county, for example.  But, one might contend, it is no big deal if the office of lieutenant-governor is vacant for some period of time, because that worthy does not do much of anything and his or her absence will not really be felt.

But, wait a minute - with the June 8 coup and its aftermath, the absence of an official lieutenant-governor precipitated a governmental crisis, precisely because it was unclear who had authority to convene and preside over the Senate and to cast tie-breaking votes on those matters on which the lieutenant-governor is authorized to cast such votes.  That there are circumstances where it is important to the running of the government that the office be filled, suggests that those who argue that the Constitution contemplates it being left vacant for as long as 4 years (if it suddenly becomes vacant right after inauguration day) are being unrealistic at best.  For a period of about a month earlier this year, we needed a lieutenant-governor, and the absence of one made it impossible for the Senate to conduct its usual end-of-term business, which precipitated various crises around the state because of the failure to address a variety of pending legislative issues.  It also made it impossible for the Governor to go out of the state, because it was unclear who would act in his stead....  and it was also unclear who would become Governor if something happened to him.

So, the Constitution can't be construed to require the position to be vacant, and the real argument is whether it is to be filled by the Senate through its election of a temporary president to "perform the duties" of the l-g, or by the Governor, who is authorized to appoint somebody to "execute" the duties.  And here at last is where I think I come around to finding the majority more persuasive, since the Constitutional language sounds to me like designating an official with a different title - Acting President of the Senate - to "perform" the duties until the vacancy is filled, and the Constitutional language directs the legislature to provide for how "vacancies" will be filled, which it does by enacting Sections 41-43 of the Public Officers Law.  From this perspective, it looks like the legislature did not go beyond its remit if it (perhaps unwitttingly) provided in  Sec. 43 that the Governor could appoint a new lieutenant-governor, because nature and state government abhor a vacuum, and we must have a lieutenant-governor to "execute" those duties, not a "temporary president" to "perform" them.  The very name of "temporary president" suggests that this person remains a member of the legislative branch, while what we need for the balance of the unexpired l-g term is somebody who is a member of the executive branch, part of the Governor's team, who logically should be appointed by the Governor. 

Thus, although the dissent is convincing on many levels while reading it, ultimately the majority opinion strikes me as more practical and more consistent with the overall structure of our government and the separation of powers between executive and legislative branches.  The dissent objects to the idea that the Governor can name his successor.  But, as a practical matter, since candidates for Governor select their running mates, that is already happening.  Since the gov and the lt-gov are elected jointly in one vote, not by separate ballots, the voters are really voting for the governor and his choice of emergency successor.  Having the Senate, which may be under the control of the opposite party, designate the successor, does not strike me as consistent with separation of powers.  The Senate should not be dictating the identity of the Governor's teammate.  (That the legislature, not the Governor, fills vacancies in the offices of Attorney General and Comptroller do not strike me as inconsistent with this, because under NY's governmental structure, unlike the federal government, these are independently elected officials, need not be members of the same party as the Governor and frequently have not been, and are supposed to operate independently of the executive branch of the state government.)   

Was the Court of Appeals engaging in "interpretation" of the constitutional and statutory provisions in this case, or was it coming up with a political solution?  I'm not sure, but both opinions summon history to support their argument about what the intent behind these texts might be, and come to contradictory conclusions.  On balance, I'm more persuaded by the majority, but it took me a long way around to get there.  Ultimately, I think the majority's approach is more consistent with the separation of powers concept that underlies our state government, and thus its conclusion could be said to be supported by a structural reading of the Constitution as literally a document that "constitutes" our state government.

Tennessee Appeals Court Says Best Interest of Child Overrides Paramour Restriction

A unanimous panel of the Tennessee Court of Appeals ruled on September 18 that the Gibson County Chancery Court erred in holding that it was required to include an "overnight paramour" provision in the parenting plan governing child custody and visitation for a lesbian mother who lives with her same-sex partner, in the absence of any finding that such a restriction is necessary for the best interest of the teenage children involved in the case. The decision for the court by Judge Holly M. Kirby in Barker v. Chandler, 2009 WL 2986105, skirts potential constitutional problems by finding that Tennessee statutes and Supreme Court precedents make the best interest of the child paramount to any other considerations. The "paramour" provision forbids the parent from having an unmarried adult partner in their house overnight while their child or children are there.

The parents were married in February 1992, and the son and daughter were born over the next few years. Mother instituted divorce proceedings after discovering that Father was having an extra-marital affair. Under the divorce decree of 1998, Mother became primary residential parent for the daughter and Father was designated as primary residential parent for the son, but parenting roles switched back and forth over the next few years as Father acquired a paramour and then a wife and Mother acquired a live-in same-sex partner.

The present suit stems from the most recent modification of custody, when the parties could not agree on residential custody and the court required the parties to make themselves able to a court-appointed psychologist, Dr. Pickering. The doctor recommended that the original disposition be resumed, the son staying with Father and the daughter with Mother. Pickering found that the daughter’s relationship with her step-mother, Father’s new wife, was not particularly good and was causing emotional problems for her, supporting the Mother’s argument for having the daughter live with her, despite the usual judicial preference to keep siblings together. Pickering also specifically found that Mother’s same-sex partner and daughter had a positive relationship. "He cited research showing no adverse impact on children living with parents with same-sex partners, and he indicated that the trial court would need to address issues involving the cohabitation of Mother and [her partner.]," writesJudge Kirby for the court of appeals. While noting that the "paramour clause" was found in "most visitation orders" in Tennessee, Dr. Pickering wrote in his report to the court, "current results do indicate [she] is a positive parent surrogate for both children, and has appropriate relationships with them both."

At the hearing on the parties’ motions, the parties agreed to the disposition recommended by the psychologist, and Mother argued against inclusion of the paramour clause, which otherwise would be routinely included in the standard form adopted under the Tennessee courts’ local rules. The trial court insisted that the "paramour provision" had to be in the family plan, because it was a part of the standard rules. "I’m not saying that [Mother] and [her partner] can’t sleep together," wrote Chancellor George Ellis. "Apparently, Dr. Pickering found [her] to be a positive influence. The issue is paramour overnight." Ellis found that this was the state-wide policy. "I don’t know any Judge in this state that does not preclude paramours overnight when children are present in the home," and opined that any change in this "will have to come from the wisdom of our appellate courts."

Exercising such wisdom, the court of appeals found that exalting a standard provision in a form over the best interest of children would be contrary to the state’s family law policy. "Despite the important considerations underlying Local Rule 23," wrote Judge Kirby, "such a local rule cannot bind the hands of a trial judge to make decisions that are in the best interest of the children who come before the court. Tennessee’s courts have long held that the best interest of the child is the single most important factor in matters involving parenting time and visitation," she continued, quoting from an earlier decision of the court of appeals that characterized best interest of the child as "the polestar, the alpha and omega."

In this case, Kirby pointed out, the trial court included the paramour provision not on the basis of some finding that it was necessary to protect the children, but rather just because the court felt constrained by the local rule to do so. "We find as a matter of law that this conclusion was erroneous. We make no judgment regarding whether inclusion of the paramour provision in this parenting plan serves the children’s best interest in this case, and we make no decision as to whether Daughter’s best interests are served by having Mother or Father designated as her primary residential parent," Kirby wrote, referencing the issue that had been the sticking point that had precluded an amicable agreement between the parents. Rather, said the court, these were issues to be decided by the trial court, unconstrained by any necessity to follow the local rule and require the paramour clause without any finding that it was needed.

The trial court’s decision was reversed and the case was sent back for a determination of best interests of the children without reference to Local Rule 23.

New DOJ Brief Defending Constitutionality of DOMA in Gill v. OPM

The U.S. Department of Justice, Civil Division, has filed its motion to dismiss in Gill v. Office of Personnel Management, Case No. 1:09-cv-10309 (JLT) (U.S.Dist.Ct., D. Mass.), the constitutional challenge to Section 3 of the federal Defense of Marriage Act filed in federal court in Boston last winter by Gay & Lesbian Advocates & Defenders (GLAD). The brief that DOJ filed on September 18 in support of the motion seems to come from a different universe from the brief they filed in June seeking dismissal of a DOMA challenge on the West Coast. Indeed, comparing the two is like comparing apples and oranges.

Last spring, DOJ first argued that the Smelt case should be dismissed for lack of standing, because the married couple who filed that case did not allege any specific harm they had suffered due to DOMA. DOJ won the motion to dismiss on that ground. But their brief went on to make the outrageous claim that the case should also be dismissed on the merits because DOMA was not discriminatory, but merely an attempt by Congress to be "neutral" in a contentious national debate over same-sex marriage. DOJ’s brief generated most of the public ire, however, in its response to the challenge to Section 2 of DOMA, relieving states of any obligation to recognize out-of-state same-sex marriages, and that section is not involved in the Gill case in Boston.

This time out, DOJ does make some narrowly-focused standing arguments concerning some of GLAD’s plaintiffs, but they are almost beside the point, because there is no dispute that several of the plaintiffs do have standing to raise a constitutional challenge to DOMA due to their exclusion from federal rights and benefits. All of the plaintiffs are either same-sex couples who married in Massachusetts or the surviving spouses of same-sex partners who they had married there, and in each case they had applied for some federal benefits or sought to exercise some federal rights unsuccessfully because of DOMA. DOJ argues that one of the plaintiffs’ cases must be dismissed because only the federal court of claims based in the District of Columbia has jurisdiction over the particular claim. As to another, they demonstrate convincingly that the particular plaintiff’s federal agency employer, the Postal Service, was not a participant in the particular benefits program about which she was complaining.

But turning to the merits, DOJ’s argument is quite straight-forward. After conceding that the Act discriminates and that the Administration is seeking its repeal, the brief nonetheless defends it as constitutional on minimalist grounds. Pointing out that at the time it was passed, no state authorized same-sex marriage and the enactment was provoked by concerns about a pending same-sex marriage lawsuit in Hawaii, DOJ argues that Congress could have rationally reacted to an unsettled situation regarding this new potential social phenomenon by preserving the status quo until the states had worked out a uniform approach to the issue. Making the argument that Congress could rationally believe it was sensible to have one standard for eligibility for federal rights and benefits throughout the nation, DOJ argues that in Section 3 Congress could have decided to preserve existing eligibility rules by adopting a uniform definition of marriage for the federal government. This way, eligibility for federal benefits would not differ from state to state.

DOJ argues that this proposed rational basis would be sufficient to satisfy the "rational basis" test of judicial review, under which statutes are presumed to be constitutional and the burden is on the challenger to prove that there is no non-discriminatory rationale for the statute. LGBT rights groups have been arguing in the courts that a more demanding level of judicial review should pertain to gay rights cases, due to the history of anti-gay discrimination, which illustrates that gays have frequently been the targets of blatantly discriminatory government policies. In cases involving other groups, the Supreme Court has indicated that such a history might require heightened scrutiny of equal protection claims.

The problem here is that the Supreme Court’s rather opaque opinion in Romer v. Evans, the 1996 ruling overturning Colorado’s anti-gay Amendment 2 which is the only equal protection ruling in favor of gay plaintiffs ever issued by the Supreme Court, has left the impression with lower courts that the "rational basis" test is the appropriate test for evaluating anti-gay legislation. The Romer decision was written against a context of national controversy about the constitutionality of the anti-gay military policy as well as same-sex marriage, and it is likely that the Supreme Court was looking for a way to decide that case without significantly affecting the constitutional status of these other issues, which may help to explain why Justice Anthony M. Kennedy’s opinion for the Court takes the approach that it did. It was possible for the Court to invalidate Amendment 2 by holding that it failed even the least stringent standard of judicial review, the rational basis test, without saying anything about whether some stricter standard of review might be appropriate for cases involving other anti-gay legislation. Arguably, if a discriminatory statute lacks even a rational basis, there is no need to undertake more stringent review and the Court can avoid deciding whether more stringent review might apply. Avoiding deciding constitutional issues that need not be decided is a central tenet of judicial restraint.

This was, of course, not a holding that anti-gay legislation does not merit a higher standard of review, but merely a ruling that Amendment 2 would fall to the lowest standard of review, because the Court saw the amendment as a product of pure animus against gay people, and had previously held in cases on other subjects that pure animus against a particular class of people is never a legitimate basis for discriminatory legislation.

Unfortunately, however, the 1^st Circuit Court of Appeals, which would have jurisdiction over any appeal of GLAD’s case from the Massachusetts District Court, issued a ruling last year holding that in light of Romer v. Evans it concluded that the rational basis test was the appropriate standard for evaluating an equal protection challenge to the military "don’t ask, don’t tell" policy. The court’s opinion in that case, Cook v. Gates, is itself somewhat elusive on the point, but seems to take the position that inasmuch as the Supreme Court did not adopt a higher standard of review in Romer and avoided discussing the equal protection issue in Lawrence, the 1^st Circuit would follow the lead of other circuit courts in using the rational basis standard.

Thus, District Judge Joseph L. Touro, before whom this case is pending in Boston, is arguably bound by 1^st Circuit precedent to use the rational basis test in deciding this motion to dismiss. The argument about national uniformity advanced by DOJ in support of its motion is just the kind of argument that usually wins a rational basis case, given the presumption of constitutionality. It is possible that GLAD can, in its responding brief, find support in the legislative history for the argument that animus played a significant role in the enactment of DOMA, or can persuade the court that Justice Sandra Day O’Connor’s discussion of equal protection in her concurring opinion in Lawrence shows that gay rights cases merit "more searching scrutiny" which requires a trial rather than disposition by motion to dismiss.

Of course, this case was planned to go to the appellate level in any event, so a dismissal by Judge Touro will merely hasten its progress by propelling it to the First Circuit more quickly. Touro could easily conclude that in light of First Circuit precedent, a trial can be avoided for now, and that the place to hold the purely legal argument about whether heightened scrutiny applies is at the court of appeals.

One point about the DOJ brief which is worthy of comment is its extensive textual footnote 10, which disavows any reliance on the argument that DOMA is justified under the reprehensible "responsible procreation and child-rearing" theory, a theory that has been at the heart of the same-sex marriage cases that have been decided adversely over the past few years. "Since the enactment of DOMA," says the brief, "many leading medical, psychological, and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting upon concluding, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents." The brief also notes in this footnote that "Justice Scalia acknowledged in his dissent [in Lawrence v. Texas] that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because ‘the sterile and the elderly are allowed to marry.’ Thus, the government does not believe that DOMA can be justified by interests in ‘responsible procreation’ or ‘child-rearing.’"

This footnote, which cites half a dozen professional sources for its factual assertions, is clearly the result of meetings that gay rights groups held with Civil Division attorneys after the uproar over last June’s DOMA brief in the Smelt case in California. Indeed, the DOJ reply brief in Smelt, filed shortly before the court granted the DOJ dismissal motion in that case on procedural grounds, already backed away from the worst arguments from the original brief, and disavowed these same arguments.

Is this new DOJ brief so "weak" in defending DOMA that it is giving up the game in hopes that the court will strike it down, saving the administration the effort to get it repealed by Congress? I don’t think so. In fact, in retreating from the more outrageous approach of the earlier brief, this brief actually lands on a facially plausible, non-discriminatory rationale for DOMA.

A handful of states allows same-sex marriage, while almost all of the rest ban it by constitutional amendment or statute, so it is plausible to assert that if Congress desired a national standard for eligibility for benefits, it could have believed that the way to preserve uniformity as of 1996 was to take the then-existing definition of marriage in every state and adopt it as the federal standard. I would argue, given the historical context, that this sudden, rather belated concern with uniformity in administering programs that in many cases were decades old was clearly sparked by a desire to exclude same-sex couples from eligibility just in case same-sex marriages became legal anywhere, and thus it embodied a discriminatory motive, but in rational basis cases it is unusual for the court to look behind the face of the statute at such arguments. (Under Justice O’Connor’s "more searching scrutiny" standard, I think such evidence clearly becomes relevant, but O’Connor’s statement comes from a concurring opinion, not the Court’s opinion, although it is itself a synthesis of prior decisions by the Court in cases involving other groups, so it was "nothing new.")

Bottom line: I suspect Judge Touro will find it convenient based on the DOJ arguments to dismiss the lawsuit, GLAD will promptly appeal, the issue of appropriate level of review will be joined in the First Circuit, where the Cook v. Gates decision might also be invoked as binding in a three-judge panel but could be open to debate through en banc review. And, of course, ultimately there will be no final judgment in this case until the Supreme Court decides it, and there are too many imponderables about who may be sitting on the high court by then to make any prognostications on the merits now. Justice O’Connor is retired. Will any other member of the Court embrace the idea that at least "more searching scrutiny" than the ordinary rational basis test provides is appropriate in gay rights cases?

Wrongful Rescission of Health Insurance for HIV+ Insured Merits $10 Million Punitive Damages

The South Carolina Supreme Court has unanimously awarded $10 million in punitive damages to a young man living with HIV whose coverage was retroactively rescinded by his health insurer after he filed his first HIV-related claim.  The September 14 ruling, calling the insurance company’s behavior in the matter “reprehensible,” also affirmed an award of $150,000 in actual damages for bad faith breach of contract.  Mitchell v. Fortis Insurance Company, Opinion No. 26718, 2009 Westlaw 2948558 (South Carolina Supreme Ct., September 14, 2009).

Jerome Mitchell, Jr., was an apparently healthy 17-year-old on May 15, 2001, when he applied to the Fortis Insurance Company for an individual health insurance policy because his mother’s health insurance would no longer cover him, as he was going off to college in the fall.  Mitchell truthfully completed the application form, indicating that he had never been diagnosed as having or been treated for any “immune deficiency disorder.”  His application for insurance was approved.

Almost a year later, in April 2002, Mitchell participated in a Red Cross blood drive, and on May 13, 2002, received the unfortunate news that his blood donation had tested HIV-positive.  Red Cross advised him to have this confirmed by his own doctor.  Mitchell went to Dr. Michael Chandler the next day, when he was tested and the positive result was confirmed.  Dr. Chandler’s assistant wrote a note that was attached to his chart: “Gave blood in March – got letter yesterday stating blood tested HIV.”  This handwritten note correctly identified Mitchell as 18 years old, but mistakenly recorded the date of the appointment with Dr. Chandler as May 14, 2001, rather than 2002.

Dr. Chandler referred Mitchell to an infectious disease specialist at Carolina Health Care, Dr. Kevin Shea, who saw him on May 23 and recorded his medical history on his own intake form, indicating that Mitchell, an 18-year-old African American man with “no past medical history” had “tried to donate blood in April of this year” and was noted to be HIV positive, which was confirmed by Dr. Chandler.

Fortis Insurance then received claims for the services provided by Dr. Chandler and Dr. Shea.  Upon receiving claims relating to HIV, Fortis set in motion an investigation to determine whether there was some basis to avoid liability by rescinding the policy.  They got Mitchell to sign a medical records release and obtained copies of his patient records from Dr. Chandler, Dr. Shea, and his blood test results.  The claims investigator focused in on the handwritten note by Dr. Chandler’s assistant, and flagged it for attention.  If one ignored everything else and just focused on this misdated note, it looked like Mitchell learned he was HIV-positive on May 14, 2001, and then applied for health insurance with Fortis the very next day, without revealing this information on his application. 

Of course, all the other records in the files that Fortis received from the doctors indicated that Mitchell’s HIV status was first discovered in May 2002, not May 2001, but Fortis ignored all of this contrary evidence, and its “rescission committee” voted to rescind Mitchell’s coverage, retroactive to the date the policy was issued.  A Fortis senior underwriter, Kate Stephens, who had recommended this action to the committee based on the handwritten note in the medical file (which, the court observed in a footnote, was barely legible), sent a letter to Mitchell on September 5, 2002, informing him that his policy was rescinded due to a “material misrepresentation” on his application form, and inviting him to submit “any additional information you may have which would effect [sic] our decision to rescind your policy.” 

Alarmed, Mitchell got right to work, attempting to contact Stephens to clear up the misunderstanding, but his call was diverted to a customer service representative, who said there was “nothing [the representative] could do” about the rescission of his policy.  Mitchell enlisted the help of a case manager at the Hope Health free medical clinic, where he was now going since he had no insurance coverage, who called Stephens to tell her that Mitchell’s medical records showed that he first tested positive after buying the Fortis policy, but Stephens refused to accept the evidence, said “there was nothing she could do at this time,” and made no mention that Mitchell had a right to appeal the rescission decision.

Finally Mitchell turned to a lawyer, who wrote Fortis, enclosing a copy of Dr. Chandler’s initial test results, and reciting the correct chronology of events in his letter demanding that Mitchell’s coverage be restored.  The rescission committee, however, decided to persist in relying solely on the misdated note, and denied any appeal.   Then Mitchell sued, but it was not until May 27, 2004, ten months after Mitchell’s lawsuit was filed, that Fortis finally reinstated the policy, most likely at the prompting of its defense lawyers, who knew a losing case when they saw one.

Mitchell’s case went to a trial jury, which ruled in his favor, awarding $36,000 for breach of contract, $150,000 for bad faith rescission, and $15 million as punitive damages for the bad faith rescission.   Expert testimony offered at the trial indicated that if Mitchell had no insurance coverage and hence no treatment, he would have advanced to full-blown AIDS and died within a few years, but that the projected lifetime cost of treating someone newly discovered to be HIV-positive would be $1,081,189.40.

Apparently stunned by the jury verdict, Fortis moved the judge to set aside the verdict and reduce the damages.  The judge directed Mitchell to elect among any two of the three amounts awarded by the jury and he did the mathematically correct thing, electing to get compensatory and punitive damages for the bad faith rescission and to waive the $36,000 damages for breach of contract.  Fortis then appealed. The South Carolina Supreme Court agreed to bypass the intermediate courts and take the case directly.  The major issue before the court was the $15 million punitive damages award.

Fortis contended that the amount was unconstitutionally large, and the state Supreme Court agreed.  In recent years, the U.S. Supreme Court has moved to strike down some very large punitive damage awards in a variety of cases on the theory of excessive punishment, and the South Carolina courts have followed suit, adopting a method of analysis focusing on the degree of reprehensibility of the defendant’s conduct, the ratio of punitive damages to actual damages, and comparison to other damage awards in similar cases. 

In reviewing these factors, Chief Justice Jean Hoeter Toal, writing for the court, read the riot act to Fortis on the factor of “reprehensibility,” finding “ample support in the record to establish that Fortis’s conduct was reprehensible.”  Chief Justice Toal commented that although Mitchell’s actual harm in the case was economic rather than physical, the case “is unique in that Mitchell’s economic harm - the termination of his health insurance policy - exposed him to great risk of physical danger,” given the testimony that lacking insurance coverage he could suffer severe consequences, possibly including death, from his HIV infection.  “The jury could have reasonably inferred from the evidence that Fortis deliberately ignored contextual and other evidence in order to rescind Mitchell’s policy on the pretext of a misrepresentation,” she wrote. The court found that Fortis “was deliberately indifferent to its contractual obligations and to Mitchell’s health and well being.”  Sort of like a “death panel”?

Chief Justice Toal pointed out Mitchell’s financial vulnerability.  Luckily for him, a free clinic provided him with medical services until he was able to get his coverage restored.  Of course, the only way he could get individual coverage restored was by getting Fortis to do it, since no insurance company would knowingly sell an individual health insurance policy to a new applicant who has already been diagnosed as HIV-positive.    The court pointed out that Fortis had persisted in its “repeated acts of deliberate indifference” for “nearly twenty months” until it finally restored coverage after being sued.  The court labeled Fortis’s assertion that Mitchell had made a material misrepresentation on his insurance application as “intentional deceit,” since even Stephens’ initial recommendation to the rescission committee had indicated that there was no direct evidence in the files she reviewed to show that Mitchell’s HIV infection predated his policy application, merely the handwritten note by the medical assistant. 

Fortis’s lawyers made a decision not to produce Stephens as a witness at the trial, and, wrote Chief Justice Toal, “the jury was justified in drawing a negative inference from her unavailability.”  “Fortis’s refusal to conduct a further investigation suggests that it was aware of its own wrongdoing,” the judge continued.  “Furthermore, the lack of written rescission policies, the lack of information available regarding appeal rights or procedures, the separate retention policies for rescission documents, the omission of the case manager’s call from Stephens’ phone log, and the inference evident from the record that Fortis was in possession of Dr. Shea’s records as early as the summer of 2002, were all evidence that Fortis tried to conceal the actions it took in rescinding Mitchell’s policy.” 

Thus, Toal concluded, punitive damages were clearly justified, the only question being whether $15 million was too much.  Here the U.S. Supreme Court decisions were instructive, as that court had opined that as a general matter, punitive damages of more than ten times the actual damages would probably be considered excessive in most cases.  According to Toal’s calculations, the $15 million damage award by the jury was in a ratio of 13.9 to 1, and so by this rule of thumb excessive.  By reducing the award to $10 million dollars, the court brought the ratio down to 9.2 to 1, which it felt was clearly within the permissible range.  Due to the extreme reprehensibility of Fortis’s conduct, the court was comfortable with a ratio that was close to the outer limit that the U.S. Supreme Court would consider to be within reason. 

The court had to be concerned with what the U.S. Supreme Court might think because its ruling is not necessarily the last word.  By objecting to the federal constitutionality of the damage award in its post-trial motion and its appeals, Fortis has preserved that question and could theoretically file a petition with the U.S. Supreme Court to review constitutionality of  the damage award.  By cutting down the punitive damages to a single-digit ratio, the state supreme court has made it much less likely that the federal supreme court would review the case.

This case is particularly timely in light of the current debate over health care reform.  The Obama Administration has proposed doing away with pre-existing condition exclusions, so health insurance companies would no longer be able to deny coverage to somebody because they were already infected or rescind their coverage on the basis of newly-discovered medical evidence.  As this case dramatically shows, charges by opponents of the Administration’s proposals that a “public option” would result in government “death panels” and unfeeling bureaucrats denying benefit claims ring hollow when one considers the practices of private for-profit insurance companies such as Fortis.  Congressional hearings earlier this year focused on the “rescission” phenomenon, highlighting cases in which people who fell ill found their coverage retroactively rescinded based on evidence of trivial medical problems that had not been disclosed during their application process, and finding that insurance companies had avoided liability for billions of dollars in health care costs over the years by rescinding coverage for insured people who developed serious, expensive illnesses.   This case is Exhibit A for why reform of the existing system is essential to end these practices. 

 

The Respect for Marriage Act of 2009

Yesterday, Representative Jerry Nadler (D-N.Y.) as lead sponsor together with more than 90 co-sponsors introduced H.R. 3567 in the House of Representatives.  The bill, titled "Respect for Marriage Act of 2009," would repeal the Defense of Marriage Act, a statute enacted in 1996, and would provide that the federal government will recognize marriages that were lawful where they were performed, so long as they would be recognized in any state of the union. 

In the inscrutable way of statutory drafting, anyone reading the bill would have some trouble figuring what it is about or why it would be considered controversial, since there is no mention of same-sex marriage anywhere in it.

The Defense of Marriage Act of 1996, passed in a frenzied reaction to the possibility that same-sex marriage might become available in Hawaii as a result of a then-pending lawsuit there, did two things:  In Section 2, it provided that no state would be constitutionally required to extend full faith and credit to a same-sex marriage performed in another state.  In Section 3, it provided that only the legal union of one man and one woman would be considered a marriage (and the parties considered "spouses") for all purposes of federal law.  A subsequent study by the GAO released a few months after DOMA was enacted found more than a thousand marital or spousal references in the United States Code, hinting at the breadth of the exclusion from equal treatment enacted by Section 3.  A refresher study done by the GAO a few years ago found a few hundred more such provisions that had been added to federal law in the intervening decade.

Section 2 of the proposed Respect for Marriage Act of 2009 would repeal Section 2 of DOMA.  Section 3 of the proposed Respect for Marriage Act would substitute the following paragraph for Section 3 of DOMA:  "For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State."  This section also defines the word "state" for purposes of this provision to include D.C., Puerto Rico, or any other territory or possession of the U.S., since marriages take place in all those places.

The meaning of Section 2 of the proposed law is obvious.  It would accomplish the symbolic task of removing Congress's imprimatur on a decision by a state not to recognize a same-sex marriage contracted in another state.  But this is entirely symbolic, in my view, because a "public policy exception" for marriage recognition cases was already well established in federal case law before DOMA was enacted.  No state would be compelled by the Constitution's Full Faith and Credit Clause to recognize a marriage from another state if doing so would violate its own public policy.  What Section 2 did was to give courts and state administrators a signal from Congress that they were free to withhold such recognition without worrying about the Constitution.  It would be a good thing to get rid of Section 2 so that courts and administrators would have to do the minimal work of determining whether recognizing such a marriage would violate their state's public policy.  Since all but a very small number of states have adopted either constitutional amendments or statutes establishing public policies against same-sex marriages, that's a relatively easy task.  This section of the Respect for Marriage Act thus accomplishes little, but may be helpful in a small number of cases.

The meaning of Section 3?  That's more interesting.  The sponsors of the bill want the federal government to recognize all lawful same-sex marriages, but apparently without saying so explicitly.  So they say that the federal government "for the purposes of any Federal law where marital status is a factor"  will recognize all marriages that were lawful where they were performed, provided that if a marriage was performed outside the U.S. (think Canada, South Africa, or any country that allows same-sex marriages), it will only be recognized federally if it could have been performed in at least one state of the Union.  This way, they avoid federal recognition for polygamous marriages performed in the small number of countries where such marriages are lawful, since no U.S. state allows polygamy, but they recognize incestuous marriages or marriages involving underage participants provided there is at least one state in the Union where the marriage in question could have taken place.  (U.S. states differ, for example, as to whether they will allow first cousins to marry, but most states will recognize a first cousin marriage if it was performed in a jurisdiction that allows them; similarly for marriages between uncles and nieces or aunts and nephews..... Some countries have lower ages of consent to marriage than the U.S., but only marriages involving youngsters who could have married in at least one U.S. state would be recognized for federal purposes under this provision.)  All of this is accomplished, of course, without ever directly mentioning same-sex marriages.

This section, as it is worded, also incorporates what Rep. Nadler has been calling the certainty principle; that regardless where a same-sex couple happens to be living or visiting at any particular time, their marriage will be recognized for federal purposes if it was lawful where it was performed.  Thus, for example, a same-sex couple married in Connecticut who then moved to Virginia would find that their marriage is not recognized by the state of Virginia or its political subdivisions due to public policy objections to same-sex marriage in Virginia, but the federal government would continue to recognize it for all purposes of federal law, so they could travel or move freely throughout the U.S. and be sure that their marriage would continue to be recognized for federal purposes.

If enacted, this would immediately cause difficulties in the tax arena, at the very least, since many states hitch their income tax systems directly to the federal system.  If a marriage is recognized for federal purposes, then the spouses must file their federal income taxes as married, but the states that don't recognize their marriages will want them to file their state taxes as single, which will mean preparing and filing in a different status for federal and state, which will in turn require disentangling deductions, exemptions, credits, losses, rents and royalties and any other figures having tax consequences for purposes of the two filings.  Of course, this inconvenience in reverse has been going on for some time now, ever since same-sex marriages became available in Massachusetts in May 2004, where they file as married for state and single for federal, and as more states have allowed same-sex couples to marry, this problem has spread.  H.R. 3567 would uncomplicate things in states like New York, where there are many resident same-sex couples who have married elsewhere but who find that the NY State Tax Department continues to insist that they file as single individuals because the N.Y. state tax law requires NY state taxpayers to file their state tax returns in the same status as they file their federal returns.  In other words, if this passes, there would certainly be more work for accountants, and the computerized on-line tax services would have lots of software revision to do.  Ironically -- and perhaps cash-strapped state governments may want to take this into account as they continue to ponder the issue of same-sex marriage -- the net result of lrequiring married same-sex couples to file their taxes as married rather than single may be to increase tax collections overall, since it may have the result of imposing the so-called "marriage penalty" where there are two wage earners - at least in those states that have not enacted measures to eliminate the penalty by adjusting the tax rates to avoid that result.

Rep. Nadler has been able to round up a large group of co-sponsors, but one name is conspicuously missing - the senior openly-gay member of the House, Rep. Barney Frank of Massachusetts.  Rep. Frank has articulated two reasons for not throwing his support behind the bill at this time. 

First, he is concerned that mandating federal recognition everywhere a lawfully married same-sex couple may be living could be seen as defeating the ability of reluctant states to avoid recognizing same-sex marriages, the main issue that led to the passage of DOMA in the first place.  I think anyone who raises this objection to the bill would be capitalizing on the public's inability to understand the nuances of federal and state jurisdiction, as it is actually DOMA that forces states to discriminate against their will, as the Commonwealth of Massachusetts vividly describes in its complaint in the pending anti-DOMA litigation in federal district court in Boston.  But no doubt Rep. Frank is correctly anticipating the kind of incorrect but politically potent arguments that will predictably be raised by the right-wing blogosphere and some Republicans in Congress in an attempt to defeat the bill. 

Second, Rep. Frank, who is an expert nose-counter when it comes to these things, thinks the time is not ripe for this bill.  The priorities, as he sees them, are to get the Matthew Shepard Hate Crimes bill enacted, to get the Employment Non-Discrimination Bill in its newly-inclusive form through the legislative process, and to tackle the military "don't ask, don't tell" policy.  At best, tackling DOMA is a distant fourth - and possibly, although no one is confirming it publicly - this represents some understanding with the White House about the order in which these things may get done.  I suspect that Rep. Frank has these things lined up in the order of "do-ability" since he is the exemplary pragmatic politician, as anyone who has read his book, "Frankly Speaking," can tell you.  Why tackle the more difficult task before getting the less difficult ones accomplished? 

Hate Crimes seems like low-hanging fruit compared to repealing DOMA and, in the same breath, extending federal recognition to same-sex marriages, and yet we haven't quite gotten there on Hate Crimes, which is still stuck in a conference committee on the military appropriations bill to which it's been attached. One could have sought a simple repeal of DOMA without doing the recognition part, which would be cleaner and more do-able, certainly, but we're probably not even there yet in the Senate, where only a very small intrepid band voted against DOMA in 1996. 

Rep. Nadler, by contrast, points out with justification that extending federal recognition only in those states where same-sex marriage is locally available would itself be discriminatory and contrary to the principle that federal rights and benefits should be the same throughout the nation, and he argues that even if the time to pass it isn't here, one has to start somewhere, and that's by introducing the thing, getting as many co-sponsors as possible, getting hearings in the House, trying to find a Senate sponsor in the absence of the late Sen. Ted Kennedy, who would have been a likely suspect for this, and then work on building support over time.

So I can understand both points of view, and I think people should respect Rep. Frank's pragmatic decision not to associate himself with H.R. 3567.  I doubt that he would vote against it if it came to the floor, but the likelihood of that happening any time soon seems remote.  He's working his heart out to get ENDA passed in this Congress, and we should all give him as much help as possible on that task, a task that this bill might even complicate since I'm told by one source that support from the business community for ENDA hinges in part on a provision of that bill that incorporates by reference DOMA's federal marriage definition in the area of employee benefits.  If ENDA suddenly requires private sector employers to have partner benefits plans, the business community may line up against it. So the order in which we push these things does make a difference.  At the least, with this new bill pending, it may be necessary to redraft that provision of ENDA to uncouple it from DOMA in order to maintain the forces that are now combining to make its enactment seem a possibility.

Federal Court Bars Release of Petition Signatures in Washington Referendum Contest

A federal judge in Tacoma, Washington, has decreed that the right of referendum petition signers to be anonymous outweighs the right of the public to know who is supporting a referendum to veto the enactment of a state law that expands the rights of same-sex domestic partners in Washington State. Ruling on September 10, District Judge Benjamin H. Settle granted a preliminary injunction to two anonymous plaintiffs and Protect Marriage Washington, the organization behind the referendum, under which Washington Secretary of State Sam Reed is forbidden from making the names of petition signers public, despite a state law that appears to authorize their release. Doe v. Reed, Case No. C09-5456BHS (U.S.Dist.Ct., W.D. Wash.).

In Washington, the state constitution reserves to the public the power to reject any newly-passed statute through a referendum, provided that sufficient valid voter signatures are submitted to the Secretary of State within 90 days after the end of the legislative session in which the statute was passed. The petitions require signers to give their names and addresses, so they can be verified against voter rolls.

In a separate proceeding in state court, opponents of the referendum are contesting the Secretary of State’s conclusion that sufficient valid signatures were submitted to place the referendum on the ballot and delay implementation of the statute. They claim that the Secretary of State wrongly counted the signatures of individuals who had not yet registered to vote when they signed the petitions, and that many petitions were not properly counter-signed by the signature-gatherers attesting that they had followed all state requirements in collecting the signatures. A trail judge has rejected that challenge, which is on appeal as this is being written.

Meanwhile, several groups had sought the names of the petition signers, some with the idea of posting them on-line so that Washingtonians would know who had signed the petitions and could get to work trying to persuade the signers to change their position on the referendum before the balloting takes place. Two petition signers who were allowed to proceed anonymously joined with the referendum’s sponsoring organization to seek a federal injunction against the release of the names and addresses, claiming that they would be used to harass and instigate economic boycotts against the signers, pointing to similar activities that took place in California when the names of donors to the Proposition 8 campaign were made public under a state disclosure law.

Washington’s Public Records Act generally provides that citizens can apply for access to any public record, with some listed exceptions that don’t apply to this case. Although the law does not specify that referendum petitions are public records, the petitions clearly fall within the general definition contained in the statute, and the parties agree that no statutory exemption applies to them.

Judge Settle accepted the plaintiffs’ argument that the First Amendment of the federal constitution, as well as the analogous amendment of the Washington state constitution, protects anonymous speech on matters of public concern. The judge looked to history, noting that the written commentaries published during the struggle over ratification of the federal constitution in the 1780s, now known as the Federalist Papers, originally appeared in newspapers under pseudonyms, and that there is a long tradition in American law protecting anonymous speech on political questions. He rejected the idea that signing the petitions was not a form of political speech, even though one cannot presume that all petition-signers would vote in favor of the referendum, since it was a way of communicating the signer’s view that the public should have a right to vote on whether the expanded domestic partnership law goes into effect.

While Judge Settle found that there was no prior appellate court ruling that addressed the precise question before the court, "the weight of authority, however, counsels toward the finding that supporting the referral of a referendum is likely protected political speech."

Of course, there is also a strong state interest, articulated in the Public Records Act, in transparency in government. In this connection, making public the names of petition signers is said to serve the state’s goal in "preserving the integrity of its election process" "The court agrees with Defendants on this point as it is undisputed that the State must employ some measures to prevent fraud in the referendum process," wrote the judge. "What is disputed, however, is the extent of the government intrusion on the individual’s right to anonymously participate in a political activity, i.e., whether the Public Records Act is narrowly tailored to accomplish the interest of preserving the integrity of the referendum process." Settle concluded that the plaintiffs had established "a likelihood of success on the claim that the Public Records Act is not narrowly tailored to achieve the compelling governmental interest of preserving the integrity of the referendum process," noting that the Secretary of State’s scrutiny of the petitions might adequately fulfil that purpose without releasing the names of the signers for general circulation to the public.

The court rejected the argument that the public interest in knowing who is supporting the referendum would outweigh the First Amendment anonymous speech rights of the signers. The court observed, as noted above, that there is no way of knowing whether any particular individual had signed because they thought the question should come to a public vote rather than because they wanted to see the referendum passed. Judge Settle also noted the long-established principle that any denial of First Amendment rights imposes an irreparable injury, a finding necessary to justify issuing an injunction, and in balancing the equities between the parties, he found that First Amendment concerns normally outweigh competing interests. Furthermore, he found that it is always in the public interest to "prevent the violation of a party’s constitutional rights." Weighing these factors together, he concluded that the court’s temporary order to keep the names confidential should be continued in a preliminary injunction pending a full trial on the merits of the case.

While this is not a final judgment on the merits, the state indicated it would seek an immediate appeal to the U.S. Court of Appeals for the 9^th Circuit to vindicate the Public Records Act requirement that members of the public be entitled to know who signed the referendum petitions.