Leonard Link

Ohio Supreme Court Refuses to Block Marriage Equality Initiative

The Supreme Court of Ohio announced on May 25 that it would not consider an attempt by anti-same-sex marriage forces to block a proposed ballot initiative intended to repeal Ohio’s anti-gay marriage amendment and replace it with a marriage equality amendment.

The initiative, sponsored by Freedom to Marry Ohio, would repeal the anti-gay amendment and replace it with a new amendment, called “The Freedom to Marry and Religious Freedom Amendment,” stating: “In the State of Ohio and its political subdivisions, marriage shall be a union of two consenting adults not nearer of kin than second cousins, and not having a husband or wife living, and no religious institution shall be required to perform or recognize a marriage.”

Attorney General Mike DeWine certified a proposed ballot summary. The summary states that the proposal would “repeal and replace Section 11, Article XV of the Constitution to: 1. Allow two consenting adults freedom to enter into a marriage regardless of gender; 2. Give religious institutions freedom to determine whom to marry; 3. Give religious institutions protection to refuse to perform a marriage.” DeWine certified this statement as “a fair and truthful statement of the proposed constitutional amendment,” thus authorizing the proponents to begin circulating petitions to put it on the ballot.
The organization that had proposed and won enactment of the anti-gay marriage amendment, Ohio Campaign to Protect Marriage, sought to invoke the original jurisdiction of the Ohio Supreme Court to reject the ballot summary, claiming that it was too long and detailed to be a summary, but also that it misrepresented the intent and effect of the amendment. Among other things, they argued that the ballot summary “does not adequately alert prospective signers to the language of the Constitution that would be repealed by the Amendment.” They also argued that the summary failed to mention the restriction against first-cousin marriages in the Amendment language, while at the same time protesting that the summary was too long and detailed. Consistency?

Two members of the seven-member Ohio Supreme Court dissented from the decision to dismiss the case, indicating they would have scheduled it for argument.

Another Federal Court Finds Federal Marriage Definition Unconstitutional

U.S. District Judge Claudia Wilken (N.D.Cal.) ruled on May 24 in Dragovich v. U.S. Department of the Treasury, No. C 10-01564 CW, that Section 3 of the Defense of Marriage Act, 1 U.S.C. Section 7, and Section 7702B(f) of the Internal Revenue Code, 26 U.S.C. Section 7702B(f), are unconstitutional to the extent that they limit the participation of same-sex spouses and domestic partners of California public employees in the long-term care insurance program provided by the California Public Employees' Retirement System (CalPERS).  Judge Wilken premised her ruling on the equal protection requirement of the 5th Amendment of the U.S. Constitution, concluding that having disposed of the case on this basis, there was no need for her to address the plaintiffs' alternative substantive due process argument.

Judge Wilken's ruling on Section 3 of DOMA, which provides that for all purposes of federal law "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife," is consistent with rulings by several other district courts, but her ruling on the federal tax code provision, which limits favorable federal tax treatment for public employee long-term care plans to those that comply with the family-member status requirements of the federal Tax Code, broke new ground, in part because it extends beyond same-sex spouses to open up eligibility to registered same-sex domestic partners.

Plaintiffs are California public employees who are in civil marriages or registered domestic partnerships with same-sex partners, who sought to enroll their spouses or domestic partners for coverage under the state's long-term care insurance program.  State officials declined to enroll them, citing the feared loss of favorable federal tax treatment for the overall program if they allowed participants who did not come within the federal limitations.  The favored treatment means that employees can deduct the cost of premiums they pay to participate in the program, and the value of benefits is not taxed as income.  The federal provision in question was enacted at about the same time as the Defense of Marriage Act in 1996.

The federal government's position in the case, presented by the Justice Department, is to concede that Section 3 of DOMA is unconstitutional, but to defend the tax code provision.  The so-called Bipartisan Legal Advisory Committee of the House of Representatives (BLAG), which intervened to defend Section 3 of DOMA, has adopted the arguments that the Justice Department advanced unsuccessfully in attempting to defend Section 3 in Gill v. Office of Personnel Management, as well as the rationales for DOMA expressed by its supporters in Congress in 1996.

Judge Wilken held, unsurprisingly, that under existing 9th Circuit precedent she was bound to use rationality review as her standard for evaluating this constitutional challenge, since the 9th Circuit has yet to reconsider its position on sexual orientation discrimination in light of the Supreme Court's rulings in Romer v. Evans (1996) and Lawrence v. Texas (2003).  However, as has proven true in other district courts around the country, this has not proven to be a stumbling block for gay rights plaintiffs in recent cases, as numerous federal district judges have reached a consensus that the arguments being advanced by BLAG in support of Section 3 are not rational.   Rationality, in this context, would mean that the court could conclude that Congress had some legitimate, non-discriminatory reason for adopting the anti-gay marriage definition, other than moral disapproval of homosexuality (or, what is the same thing but never said out loud by the courts, pandering for votes from the anti-gay portion of the electorate).  Each purported "rational basis" has to meet the test that a rational individual could genuinely believe that the proferred justification for the law would actually advance a legitimate state interest.

Judge Wilken's opinion draws liberally from the same sources as the recent opinions by her Northern District of California colleague, U.S. District Judge Jeffrey S. White, ruling in Golinski v. United States Office of Personnel Management, 824 F.Supp.2d 968 (N.D.Cal., Feb. 22, 2012), and the seminal decision on the unconstitutionality of Section 3, Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D.Mass., July 8, 2010), by Senior U.S. District Judge Joseph L. Tauro.  These opinions mine the blatantly homophobic statements found in the Congressional record from the 1996 debate on passage of the DOMA, in which the most outspoken proponents of the legislation recited moral disapproval of homosexuality and same-sex relationships as the driving force behind the measure.  Such motivations, which had then recently been discredited by the Supreme Court in Romer v. Evans, have since been even more strongly condemned by the Supreme Court in Lawrence v. Texas.  As such, it is inescapable that anti-gay bias was a driving force behind the enactment, and cannot serve as a rational basis for the statute.

Under the rational basis test, however, even a measure enacted out of animus can be sustained if the court credits some other hypothesized legitimate reason for keeping the statute in place.  Once one has ruled out the moral judgments of legislators or a desire to preserve the traditional definition of marriage as qualifying reasons, it is hard to think of other justifications that would meet the rationality test.

"The preservation of marriage as an institution that excludes gay men and lesbians for the sake of tradition is not a legitimate governmental interest," wrote Judge Wilken, who commented, "there is no principled distinction between anti-gay animus and a conception of civil marriage as an institution that cannot tolerate equally committed same-sex couples." 

She also rejected BLAG's argument that adopting Section 3 was a "cautious legislative step" in 1996 in the face of the growing controversy about the possibility that same-sex marriages would become available in Hawaii.  "The measure established an across-the-board federal definition of marriage limiting it to heterosexual couples, and preempting any opportunity to test the impact of state laws evolving to recognize same-sex marriage," she observed, noting the "sweeping range of federal provisions" conferring marital benefits that were withheld from gay partners.  Since DOMA did not ban states from allowing same-sex couples to marry, "it created a new schism between state and federal domestic relations law."  Rather than preserving any "status quo," she wrote, "DOMA marked a significant departure from federal deference to the states' authority in defining marriage."

She rejected outright the argument that DOMA could be sustained as a financial measure, noting that even BLAG had conceded the studies showing that federal recognition of same-sex marriages "would result in a net benefit to the federal treasury."  Even if there were cost savings, however, she noted that such a rationale had never been accepted in defense of a discriminatory federal program.  She also rejected the argument that DOMA would establish "uniformity in eligibility for federal benefits," pointing out that states have varied in their eligibility requirements for marriage and that the federal government had always gone along, with federal statutes typically stating that marriages recognized under state law would qualify for the particular federal benefit at issue.

One of the arguments that the Obama Administration's Justice Department has abandoned even in its original defense of Section 3 in the Gill case, but that BLAG has revived as it intervenes in pending DOMA cases, was the "responsible procreation" argument; "that Congress could rationally have enacted Section 3 of the DOMA to encourage marriage for heterosexual couples who, unlike same-sex couples, are generally at risk of accidentally conceiving children outside of marriage."  Judge Wilken treated this argument with the scorn it deserves, pointing out that DOMA did nothing to incentivize heterosexuals to marry, and that there is no logical connection between denying marriage recognition for same-sex couples and encouraging heterosexuals to marry. 

She also rejected BLAG's argument that DOMA "could have been passed to preserve the social link between marriage and child-rearing," pointing out that many same-sex couples are raising children regardless whether marriage is available to them or recognized by the federal government, and that "child-rearing is not the core attribute of marriage."  Indeed, she observed, "there is no reasonable connection between the exclusion of same-sex spouses from the federal definition of marriage and minimizing the number of children born outside of wedlock."  Again, she noted, "the law did not establish an incentive for heterosexual couples to marry; they were able to do so and enjoy federal recognition, prior to the enactment of the DOMA."

Thus, the evidence of anti-gay animus behind DOMA and the lack of any rational non-discriminatory justification for the measure meant that the Plaintiffs were entitled to summary judgment on their argument that Section 3 is unconstitutional "to the extent that the law blocks their access to the CalPERS long-term care plan."  Judge Wilken found, however, that it was unnecessary to address the question whether same-sex registered domestic partners were entitled to judgment on this point, responding to their needs by her ensuing ruling on IRC Section 7702B(f).

Here, the argument focused on the limitation of family definition that Congress adopted in deciding who could participate in a tax-favored program to provide long-term care insurance to government employees.  Judge Wilken found that "laws excluding registered domestic partners use that status as a proxy for homosexuality," so this was also a question of sexual orientation discrimination, which would be evaluated under the rational basis test.  She rejected the defendants' argument that the provision is "neutral as to sexual orientation because other relatives, such as cousins, and individuals who share a close, family-like relationship are omitted from the list of eligible relatives," pointing out that the best analogy here is to spouses, inasmuch as California registered domestic partners are treated as spouses for all purposes of state law. 

Although the specific legislative history of this tax provision does not abound with anti-gay statements by legislators, Judge Wilken accepted the argument that the exclusion of same-sex partners should be viewed in the broader context of Congressional sentiment expressed in connection with other relatively contemporaneous enactments.  In addition to the DOMA debate, the District of Columbia Council had adopted a domestic partnership registry several years prior to the enactment of this statute, but Congress had repeatedly blocked its implementation by prohibiting the D.C. government from spending any money to set up and administer the registry -- a situation that persisted for a decade.  The legislative history of those restrictions, predating the adoption of DOMA, taken together with the DOMA debate, supported the argument that anti-gay bias infected the exclusion of domestic partners.  "The Court infers that Congress acted on anti-gay animus in refusing to include registered domestic partners in the list of relatives eligible to enroll in state-maintained long term care plans," she wrote, and she rejected the defendants' argument that the exclusion was rational because "no state recognized such relationships" in 1996.  This conveniently overlooked that the District of Columbia and many municipalities already recognized domestic partners by then, and that Congress had already acted to block the D.C. registry prior to passing this tax provision.  Thus, Congress was well aware of the existence of domestic partnerships when it was considering this tax measure. 

Judge Wilken rejected several other arguments advanced by defendants, all of which strain logic and suggest the desperate attempts of the attorneys to come up with something that sounded both plausible and non-discriminatory.  "Section 7702B(f) is actually inconsistent with Congress's expressed policy goal of encouraging the purchase of long-term care coverage generally," she wrote.  "Congress's broad extension of favorable tax treatment to private plans was consistent with its policy goal.  However, Congress imposed, pursuant to Section 7702B(f), a penalty, namely disqualification of state-maintained plans from favorable federal tax treatment, if they extended long-term care coverage to household members and relatives beyond the list of individuals sanctioned by Congress.  Thus, none of the explanations put forth by Federal Defendants satisfies the rational basis test."

The the court concluded that "both provisions [Section 3 of DOMA and Section 7702B(f) of IRC] are constitutionally invalid to the extent that they exclude Plaintiff same-sex spouses and registered domestic partners from enrollment in the CalPERS long-term care plan."  Judge Wilken indicated, however, that "a stay on State Defendants' compliance with this order will be granted, if a timely appeal is filed."  Thus, although the court would issue an injunction requiring the administrators of the state plan to enroll same-sex spouses and registered domestic partners of employees as a remedy for the constitutional violations, this relief will not go into effect for now, because BLAG will pretty much automatically appeal any district court decision that it loses.  Predictably, then, this case will join the lengthening list of pending appeals at the 9th Circuit involving the legal rights of same-sex couples, behind Perry v. Brown (the Proposition 8 case, as to which we still await the 9th Circuit's decision whether to grant a petition for en banc review) and Golinski, which has been scheduled for oral argument in September, the 9th Circuit having recently rejected the Justice Department's suggestion to expedite that case by going directly to an en banc panel.

Which means, of course, that more of your tax dollars will be going to BLAG's hired counsel -- former Solicitor General Paul Clement and his law firm -- to continue making discredited and illogical arguments while stringing out all the DOMA cases through the appellate process.  BLAG's hope, of course, is that when they finally get one of these cases to the Supreme Court, they can persuade the conservative Republican majority there to accept one or more of these illogical arguments and render a political decision upholding Section 3 of DOMA.  (BLAG is bipartisan in name only; it consists of 3 Republicans and 2 Democrats, who vote 3-2 on party lines on every issue.)

Court Infers Anti-Gay Discriminatory Intent in Kentuck Employment Discharge Case

I usually try to blog about a new case as soon as I hear about it, but last month was the time of year when I am on the lookout for final examination fact patterns, and so I have put off blogging about Stroder v. Commonwealth of Kentucky Cabinet for Health and Family Services, 2012 Westlaw 1424496 (W.D.Ky., April 24, 2012), for almost a month, as I quickly decided to base a final exam question on the facts of this case for my Sexuality Law class.  So, here it is belatedly, an interesting and provocative ruling by U.S. District Judge John G. Heyburn, II, find that a government employer violated the 14th Amendment Equal Protection Clause by discharging a probationary employee for misusing his office email account... and therein lies a tale of two probationary employees, who began working on the same date.

Milton Elwood Stroder and Shannon Duncan both began working as claims Adjudicators for Kentucky's Health and Family Services Cabinet on August 1, 2008.  As far as one can tell from Judge Heyburn's opinion, there were no problems with their job performance and both were likely to pass probation and become permanent employees on August 1, 2009.  Stroder was discharged on July 30, but Duncan passed probation.  The difference between the two?  Stroder is an openly-gay man, while Duncan is a heterosexual married woman.

The filing of a race and sexual harassment suit by a former employee, Bader Ali, against his supervisor, Perry Puckett, led to a document production request including email, as a result of which a staff attorney was set to work reviewing email and internet traffic of the employees.  The review, by Amber Arnett, focused first on emails to and from Puckett that "were already available as a result of document production" for the discrimination case.  Arnett found "rampant violations" of the employer's "Internet Usage Policy" within the department where Stroder and Duncan were employed.  Among the offenders were two probationary employees, Stroder and Duncan.  The Department purportedly had a "zero tolerance" policy concerning misconduct by probationary employees, so Stroder and Duncan became likely candidates for discharge.

Arnett reported what she had found to Michelle Kent, "former Executive Staff Advisor, who was charged with recommending employment actions within the Cabinet."  Kent advised that Arnett focus on Stroder and Duncan, the probationary employees, although Arnett had turned up violations by many permanent employees as well.  The employer's policy was not to discipline employees for email misuse until reviewing a "snapshot" consisting of all sent, received, and deleted emails currently in their accounts.  The snapshout would have to be ordered from the technology support department and would take several days to prepare.  Kent submitted a request for "snapshots" on Stroder and Duncan on July 20, less then two weeks before the end of their probationary period.

On July 30, Kent had not received the "snapshots," but that morning "initiated a conversation with Arnett about whether Stroder's emails that had surfaced during the review of Puckett's account contained violations sufficient to justify termination."  Those emails included messages that referenced Stroder's same-sex partner and included "homosexual slang."  Kent and Arnett decided that based on these emails there had been a policy violation.  They did not focus comparable attention on Duncan's emails at that point.  Kent then drafted a memo recommending discharge of Stroder based on his email exchanges with Puckett, probably without having reviewed the "snapshot," which did not arrive until later that day.  Kent sent the memo to Stroder's supervisor, who promptly discharged Stroder.

Kentucky does not have a statute banning sexual orientation discrimination, and federal law doesn't address it either.  Stroder filed suit making various other allegations, including a claim of violation of his Equal Protection rights under the 14th Amendment, which was the subject of Judge Heyburn's opinion.  After a bench trial, Heyburn ruled that Stroder was the winner, despite the lack of any direct evidence of discriminatory intent. Having noted that 6th Circuit precedent required him to treat this as a "rational basis" case where the employer's action was presumptively constitutional and all the burden fell on the plaintiff to prove discriminatory intent, Judge Heyburn found that such intent was proven through circumstantial evidence.

He found that the defendants were "undoubtedly correct" in arguing that Stroder's violation of the agency's Internet Usage Policy "could be a very legitimate nondiscriminatory reason for terminating a probationary employee," but he found that there were two almost exactly comparable probationary employees involved in this case, Stroder and Duncan, and that the employer provided no explanation why it acted against Stroder and not Duncan.  They started work on the same date, they were employed in the same job title, they had comparable records, and the examination of Puckett's emails showed similar violations of the policy by both of them.  (Indeed, in some respect's Duncan's violation may have been more offensive, forwarding sexually-charged images by email to other employees.) 

While Judge Heyburn found that the employer "is entitled to enforce its own internal policies," he found it "striking...that the Cabinet's sudden enforcement of the Internet Usage Policy focused disproportionately on homosexual employees and, more particularly, friendly homosexual bantering within emails."

"Despite the strikingly similar actions of Stroder and Duncan, the Cabinet handled their potential violations of the Internet Usage Policy in dramatically different ways," wrote the judge.  Although Arnett had advised Kent that both Stroder and Duncan seem to have violated the policy based on reviewing the Puckett emails, Kent asked her to focus on Stroder in the final days of his probationary period.  In their exchanges about whether the policy was violated, they concentrated on Stroder, and ignored Duncan. Had they focused on Duncan, they would likely have reached the same conclusion as they reached as to Stroder. "Kent never adequately explained why she contacted Arnett only concerning Stroder."

Heyburn concluded: "In the context of a court trial, different treatment of similarly situated employees permits but does not require a finder of fact to conclude that an employment decision was based on discriminatory animus.  It is difficult to reconcile, however, that two employees, in such strikingly similar circumstances, could be treated so differently.  The evidence suggests that Kent was determined to act on Stroder based upon the homosexual nature of his email interactions, leaving the Court to disbelieve that Kent decided to proceed with Stroder's termination first as a matter of mere happenstance.  The Court therefore finds by a preponderance of the evidence that Defendants discriminated against Stroder because of his sexual orientation.  As a consequence, Stroder was terminated; another who did the same things was spared.  This is unfair and unequal treatment."

Bravo!

Maryland Court of Appeals Unanimously Recognizes Same-Sex Marriages Performed Out-of-State

Maryland's highest court, the Court of Appeals, ruled unanimously on May 18 in Port v. Cowan, 2012 WL 1758629, that a same-sex couple married in 2008 in California could get divorced in Maryland.  Applying the state's common law comity rule for marriage recognition, the court held that recognizing the marriage was neither "repugnant" to the state's public policy nor specifically prohibited by the state's statutory ban on same-sex marriages. 

The court is deciding this issue at a peculiar time, since the legislature passed and the governor signed the Civil Marriage Protection Act on March 1, 2012.  This law, scheduled to go into effect on January 1, 2013, would replace the statutory ban on same-sex marriage with language making same-sex marriage available in Maryland.  Presumably, same-sex couples married out of state could count on their marriages being recognized in Maryland beginning on that date, but opponents of the measure have undertaken a campaign to put a repeal initiative on the ballot in November.

"Putting aside for present purposes whatever may turn out to be the view of the Maryland electorate regarding recognition of the performance in Maryland of domestic same-sex marriages," wrote Justice Glenn T. Harrell, Jr., for the court, "the treatment given such relationships by the Maryland legislature (until recently) may be characterized as a case of multiple personality disorder."  Justice Harrell cited as "Exhibit One in this lay diagnosis" the current marriage law, which was upheld against constitutional attack in a 5-4 decision by the Court of Appeals in 2007, Conaway v. Deane, 401 Md. 219.  "Exhibit Two," on the other side of the ledger, is "a long list of enactments protecting gay persons and same-sex couples from discrimination (by reason of their sexual orientation and relationships) in employment, health care, estate planning, and other areas."

This "disorder" will be cured if the Civil Marriage Protection Act goes into effect as scheduled.  But what if it does not go into effect?  Anticipating this question, the court held that whether there is a referendum and whether the CMPA is repealed by the voters "has no bearing on our consideration and resolution of the present case."  That is, the court's finds that the marriage recognition issue is separate and distinct from the question whether same-sex couples can get married in Maryland.

The parties, Jessica Port and Virginia Anne Cowan, separated two years after having married in California, and Port filed a divorce complaint, on the ground of "voluntary separation," in the Prince George's County Circuit Court, as she was a resident of that county.  Although Cowan did not contest the action, the circuit judge refused to grant a divorce, explaining that the marriage was "not valid" and "contrary to the public policy of Maryland," and the court could only grant divorces to dissolve valid marriages.  The parties each appealed, with Port represented by Maryland attorney Michele Zavos and the National Center for Lesbian Rights Legal Director Shannon Minter, and Cowan represented by Mark Scurti, Leslie Stellman and Lambda Legal's Director of Constitutional Litigation Susan Sommer. 

While the case was pending before the Court of Special Appeals, which is Maryland's intermediate appellate court, the Supreme Court reached out on its own initiative to issue a writ of certiorari and bring the case directly up to the highest state court, reacting to a developing situation in which trial courts in different counties of the state have taken different positions on whether Maryland same-sex couples who had married elsewhere were entitled to get a divorce in their home state.

The cross-appellants advanced two different theories.  First, they argued, under the doctrine of comity that Maryland courts have applied in the past to determine marriage recognition issues, a same-sex marriage lawfully contracted elsewhere should be recognized.  Second, they argued, the failure to recognize their marriage for this purpose violated their equal protection and due process rights under the Maryland constitution.  No party, either governmental or amicus curiae, filed any opposition to this appeal, but the court noted receiving seven amicus briefs in support of the appellants.  The court decided that it could resolve the question in the appellants' favor based on comity, making it unnecessary to consider the constitutional argument.

The doctrine of comity, as applied in Maryland, has a strong bias in favor of recognizing marriages that were lawful where they were contracted.  The court uses the Latin term lex loci celebrationis when considering "foreign" marriages.  There are two exceptions to the rule of recognition: where the foreign marriage is "repugnant" to Maryland public policy, and where recognition of the marriage is "prohibited expressly by the General Assembly."  The court recounted the liberal application of this rule in past cases.  For example, although Maryland does not allow common law marriages (under which a cohabiting couple can be legally married simply by holding themselves out as such to the community), it will recognize common law marriages formed in other states.  Applying this rule, the court once recognized a common law marriage based on a two-week cohabitation by a Maryland couple staying in Pennsylvania, a state that still allows common law marriage. 

The court pointed out that Maryland has also recognized an uncle-niece marriage of a Maryland couple who specifically went to Rhode Island to get married in order to avoid the prohibition of such marriages under Maryland law.  The point is that a marriage is not automatically "repugnant" just because Maryland would not issue a license to perform such a marriage, or even might subject such a marriage to criminal penalties, such as those formerly imposed under the state's ban on interracial marriages (which was repealed in 1967).  These days, the only way a marriage will be deemed repugnant would be through a serious incest violation (such as a marriage between brother and sister or parent and child) or a polygamous marriage.

Furthermore, the fact that Maryland's marriage statute provides that only a marriage between a man and a woman is valid in Maryland was not seen by the court as an express prohibition on recognizing a same-sex marriage contracted out of state.  The court pointed out that eight attempts have been made to enact language expressly forbidding the recognition of same-sex marriages performed out of state, and they have all been unsuccessful.  The court also noted an Attorney General Opinion issued in 2010, and a subsequent directive by the governor to state agencies, as reinforcing its view that same-sex marriages performed elsewhere should be recognized in Maryland.

The court concluded, "recognizing valid foreign same-sex marriages is consistent actually with Maryland public policy," noting the "array of statutes" that "prohibit public or private discrimination based on sexual orientation," the gubernatorial executive order banning such discrimination by the state government, and the state's limited domestic partnership law, which "extends to same-sex couples, who qualify as domestic partners, certain medical and decision-making rights as regards one another." 

The court also pointed out a recent enactment that granted "recordation, transfer, and inheritance tax exemptions to same-sex couples who qualify as domestic partners," and also cited its own past decisions in child custody and visitation cases that had recognized rights in same-sex co-parents.  Finally, the court noted the many ways in which the state government and other public actors had recognized same-sex partners through employee benefits policies, and the action by the Department of Health and Mental Hygiene changing birth certificate procedures to recognize same-sex partners as birth parents of children.

The court also noted decisions from other states - Wyoming and New York - that had applied comity principles in this manner, and observed that states that had refused to grant divorces to same-sex couples who were married out of state had done so consistent with express statutory prohibitions.

"Under the principles of the doctrine of comity applied in our State," concluded the court, "Maryland courts will withhold recognition of a valid foreign marriage only if that marriage is 'repugnant' to State public policy.  This threshold, a high bar, has not been met yet; e.g., no still viable decision by this Court has deemed a valid foreign marriage to be 'repugnant,' despite being void or punishable as a misdemeanor or more serious crime were it performed in Maryland.  The present case will be treated no differently.  A valid out-of-state same-sex marriage should be treated by Maryland courts as worthy of divorce, according to the applicable statutes, reported cases, and court rules of this State."

6th Circuit Revives Gay Inmate's Equal Protection Claim Against Prison Health Services

A panel of the 6th Circuit U.S. Court of Appeals reversed a summary judgment order that District Judge Robert Holmes Bell (W.D.Mich.) had issued in the case of Davis v. Prison Health Services, 2012 WL 1623216 (May 10, 2012), finding that state prison inmate Ricky Davis had alleged sufficient facts to raise an inference of anti-gay discriminatory intent in Prison Health Service's decision to remove him from working in an off-site public works program.  The opinion by Circuit Judge Julia Smith Gibbons finds that Judge Bell wrongly relied on the defendant's response to Davis's grievance in deciding whether to dismiss his claim, and also wrongly applied the concept of the "class of one" claim to find that Davis could not raise an Equal Protection argument.

According to Davis's complaint, he is an openly gay insulin-dependent diabetic inmate at Florence Crane Correctional Facility in Coldwater, Michigan.  Davis said that he was the only gay inmate who was assigned to the off-site public works program.  He claimed that the public-works officers - employees of Prison Health Services - "treated him differently than other inmates, ridiculed and belittled him, and 'made a spectacle' of him when they brought him back to the correctional facility after a public works assignment."  Among other things, he said that "these officers did not want to strip search him because he was a homosexual and that they would make 'under the breath' remarks when selected to do so."

The officers carried packets of honey while supervising the off-site inmate workers because there were several insulin-dependent diabetics among them and the honey packets could be used to relieve any low-blood-sugar incidents that might occur.  On December 2, 2009, alleges Davis, he was working in the program when he complained that he thought he was suffering from low blood sugar.  He claims that the officer on duty refused to directly hand him the honey packet, instead handing it to another inmate to give to Davis.  Davis claimed that this showed the officer's "animus toward or discomfort with him as an openly gay man."  After Davis received the honey, he went back to work and completed his shift.  At the end of the shift, an officer had Davis fill out a medical health care request and meet with a nurse back at the correctional facility.   The nurse determined that his blood levels were normal and that he had a "false alarm."  The Prison Health unit manager then ordered that Davis be removed from the public works program.

Davis says he was told he was being removed because he was a diabetic and that the manager "wasn't going to be responsible if something happened to you while you were out on work assignment."  But Davis claims that the officers, who were uncomfortable with an openly gay man, were using any excuse to get him off the detail, so this incident was, in his view, a pretext for anti-gay discrimination.  He also claimed that other similarly-situated non-gay insulin-dependent diabetics were allowed to continue working in the program. 

He filed a grievance, which drew a response that contradicts his version of events.  According to the grievance response, his complaint of low blood sugar caused the officer to return the entire group to the correctional facility early.  "Custody concerns or reoccurrence and disruption to the work group, possible security risk to the public by the remainder of the group while the officer is attending to grievant's medical condition caused the medical provider to restrict him to facility grounds work.  Grievant admitted to HUM he is non-compliant with disabetic recommendation."  Davis contested this response, pointing out that he had finished out his shift, that all he had required from the officer was the packet of honey - not treatment, and that he had not admitted to being non-compliant with his treatment for diabetes.  His appeal was denied and he filed suit, claiming a 14th Amendment violation. 

The trial judge, screening the pro se complaint, dismissed the equal protection claim, saying that it failed under a rational basis review because Davis failed to identify other prisoners who were similarly situated in all relevant respects - i.e., "any other diabetic prisoner who caused an incident requiring the work crew to return to the facility prematurely so that he could receive medical treatment" - and that his claim was barred by the Supreme Court's ruling in Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008), which, according to the trial judge, excluded any equal protection claims involving rational basis review that challenged "subjective discretionary decisions" made by prison officials.

Wrong on both counts, held the 6th Circuit panel. 

For purposes of deciding whether to dismiss a claim, the trial judge is supposed to accept as true the factual allegations of the plaintiff and not pay any attention to the factual allegations of the defendant, since the issue in screening complaints, as on a motion to dismiss, is whether the plaintiff has alleged facts which, if believed by a factfinder, would support his claim.  Davis had alleged that there were other, non-gay diabetic prisoners who were allowed to continue in the program, and that, contrary to the statement in the response to his grievance, he had not caused the work detail to return to the facility early.  Furthermore, he had alleged facts that would support an inference of anti-gay bias by the officers.

As to Engquist, the court observed that the Supreme Court's ruling in that case dealt with public employees who raised complaints of arbitrary treatment that were not based on their membership in any class or group - so called "class of one" claims.  This was not true of Davis's claim, which was based on his membership in the group of gay people.  The 6th Circuit pointed out that equal protection claims based on sexual orientation are clearly cognizable in the case law of the 6th Circuit and other circuits.  See, for example, Johnson v. Knable, 862 F.2d 314 (table), 1988 WL 119136 (4th Cir. 1988), a case directly on point, holding that a prisoner had stated a valid equal protection claim when he alleged he was denied a work assignment because of his sexual orientation.  The court decided that it did not have to address the defendant's claim that under Engquist it could not be held liable for "discretionary" decisions, having decided that Engquist did not apply to this case because it is not a "class of one" case.

Although Davis brought his case pro se, on appeal he was represented by the ACLU LGBT Rights Project and the ACLU of Michigan.

6th Circuit Affirms Summary Judgment for Employer in Gay Hostile Environment Case

In some ways, the 6th Circuit U.S. Court of Appeals' decision in Kalich v. AT&T Mobility, LLC, 2012 Westlaw 1623193 (May 10, 2012), is entirely unexceptionable.  In compliance with existing precedents, the court agreed with District Judge David M. Lawson (E.D.Mich.) that Jeffrey Kalich was not entitled to a trial of his hostile environment sexual harassment claim under Title VII because, among other things, sexual orientation discrimination claims are not covered by Title VII.  Neither Michigan nor federal law forbids sexual orientation discrimination in the workplace, so if an employee who is perceived to be gay is singled out for continuing verbal harassment by a supervisor because of that perception, there is no legal redress.

In addition, the court found that once Mr. Kalich went over his supervisor's head to complain about the harassment, the company took the complaint seriously, investigated, and permanently transferred the offending supervisor to a different region, after giving him a disciplinary warning and instructing him not to contact Kalich, thus overcoming any argument that the company should be held liable for the supervisor's actions on a theory of respondeat superior.  (Had the supervisor taken any tangible action against Kalich, respondeat superior liability would arise, provided, of course, that the adverse action was taken because of Kalich's sex.)

Hostile environment sex discrimination cases are difficult to win in any event, as the Supreme Court has set a high evidentiary bar, and many such claims are lost on summary judgment based on the trial judge's conclusion that a reasonable jury could not conclude that the plaintiff had been subjected to harassment so severe or pervasive as to adversely affect "terms and conditions of employment."  Reading the opinion for the court by Circuit Judge Bernice Bouie Donald, it seems clear that Mr. Kalich, a retail store manager for AT&T in Clarkston, Michigan, was subjected to prolonged and repeated verbal harassment by David Rich, the company's area sales manager.  Rich visited Kalich's store approximately ten times per month and, according to Kalich's allegations, produced a steady stream of demeaning remarks and comments, frequently in the presence of Kalich's subordinates.

Unlike the sort of crude verbal harassment to which gay employees are sometimes subjected, Rich did not indulge in overtly homophobic epithets or make threatening or intimidating gestures.  Instead, he said things like, "Oh, I like your glasses.  You should change your name to Virginia or Margaret.  No, I like Virginia the best," and would then refer to Rich using female names for the rest of the day in conversation with other staff members.  During one visit, he referred to Kalich's dog, stating, "What kind of dog is that?  Oh, how cute.  It figures.  That's the perfect dog for you.  What's his name?  Fluffy, Oliver?  Okay, Tell Oscar - I mean Oliver or Fluffy or whatever, hello."  "Thereafter," wrote the court, "Rich regularly referred to Kalich's dog by the names of Fluffy or Princess."  Another time, commenting on how thin Kalich was, he said, "What?  You do not eat?  You are wasting away.   Your pants don't even fit you right anymore.  You look like a girl."  Kalich had a red equality sticker on his car, which prompted Rich to ask whether he had a "Swedish flag" on the car.  Further comments along these lines are detailed in the court's opinion.

Although the company took action against Rich, as noted above, after Kalich had filed a complaint, Kalich took a leave of absence about the time that AT&T's EEO department began investigating his complaint. Shortly after he was informed of the disciplinary steps that AT&T had taken against Rich, he submitted his resignation, stating that the "dynamics of the work environment had changes as a result of the EEO investigation, which included interviews with all of the store employees."  Kalich also feared that despite the reassignment, he might in future encounter Rich.

In a same-sex hostile environment harassment case under Title VII, the plaintiff's initial burden is to show that he was targeted for harassment because of his sex.  The district court found, and the court of appeals agreed, that Kalich had failed to do this.  Kalich presented no evidence that Rich was seeking sexual favors from him or had a general hostility to men in the workplace, or that Rich treated men worse than women. 

"By all accounts," wrote Judge Donald, "Kalich established that Rich created very unpleasant working conditions for the employees that were in Rich's chain-of-command.  While Kalich seemed to be the primary target of Rich's campaign of teasing and name-calling, there is no evidence that Rich singled Kalich out 'because of' his gender.  In fact, Kalich acknowledged in his deposition that he believed Rich made the derogatory comments because he knew or suspected that Kalich was gay.  Under Michigan law, as under Title VII, sexual orientation is not a protected classification.  Thus, harassment or discrimination based upon a person's sexual orientation cannot form the basis of a cognizable claim.  Moreover, teasing and name-calling, while inappropriate in a professional environment, are insufficient to state a claim for sexual harassment."

The court also rejected Kalich's argument that the evidence showed he was "subjected to unwelcome sexual conduct or communication," another sign of hostile environment sexual harassment.  The court did not see Rich's comments as being sexual in nature.  "Kalich contends that comments designed to 'bring him out of the closet' as a homosexual man inherently relate to sex," wrote Judge Donald, but the court rejected the argument that this turned the comments in "sexual conduct or communication." "Viewing the evidence in the light most favoriable to Kalich," wrote the judge, "the vast majority of the comments Kalich cited in his complaint cannot be construed as sexual in nature.  Rich's remarks about Kalich's glasses, or referring to Kalich by various female names, or about his 'cute' dog do not inherently pertain to sex, nor do Rich's remarks about the fit of Kalich's clothes, his sewing abilities, or that he was 'wasting away' and 'looked like a girl.'"  The court concluded that there was no evidence of any "gender-based animus."

This case, and others like it, stands as a rebuke to those politicians who oppose statutory bans on sexual orientation discrimination by claiming that such discrimination does not take place.  Discrimination, especially of the hostile environment variety, can be quite subtle.  One can't read the court's summary of Kalich's allegations without seeing that Rich deliberately engaged in conduct intended to make Kalich feel uncomfortable and demeaned in front of his subordinates, placing him in a position that Kalich finally concluded was untenable, even after the company had decided to transfer Rich to a different region.  Kalich felt that he couldn't return to manage the store after what had happened.  Rich succeeded in driving him from that workplace, and it seems clear -- and the court doesn't deny it -- that this was due to Kalich's sexual orientation.  The lack of statutory protection meant that he could not obtain financial redress in the form of damages under Title VII or the state's sex discrimination law for the loss of his job and status.

A Politically-Inspired Attorney General Opinion in Nebraska?

On May 3, the Office of Nebraska Attorney General Jon Bruning, who is a Republican candidate for the United States Senate, issued a written opinion over the signature of Assistant Attorney General Dale A. Corner, asserting that "political subdivisions" in Nebraska do not have the authority to "create protected classes not listed in state statute."  The opinion was issued at the request of State Senator Beau McCoy, whose attempt to procure the enactment of a law prohibiting local governments from extending their civil rights laws to include categories not covered in the state's civil rights law was unsuccessful.  Senator McCoy's bill was provoked by the enactment of such a law in Omaha, and the pendency of another in Lincoln.

The Attorney General Opinion confronts the fact that the Nebraska legislature has enacted a statute that, on its face, authorizes incorporated cities and counties to do just what the Opinion says they may not do. 

Nebraska Revised Statutes sec. 20-113 states: "Any incorporated city may enact ordinances and any county may adopt resolutions which are substantially equivalent to the Age Discrimination in Employment Act, the Nebraska Fair Employment Practice Act, the Nebraska Fair Housing Act, and sections 20-126 to 20-143 and 48-1219 to 48-1227 or which are more comprehensive than such acts and sections in the protection of civil rights."  The section also states: "The local agency shall have within its authority jurisdiction substantially equivalent to or more comprehensive than the Equal Opportunity Commission or other enforcement agencies provided under such acts and sections...."

In a 1981 Attorney General Opinion, the office confronted this question and opined that "although the 'more comprehensive than' language could provide incorporated cities and counties with the authority to enact ordinances or resolutions protecting classifications of persons not specifically set out in the state anti-discrimination statutes, a contrary interpretation also is feasible," and suggested that the legislature enact "clarifying legislation" to as to "eliminate any doubts in this matter."  The legislature has not acted.

The AG Opinion notes that when the "more comprehensive" language was added to the statute by the legislature in 1974, an assistant city attorney who participated in drafting the bill had explained its purpose by stating it was to counter any argument that a local ordinance might go beyond the scope of legislative authority because it did not use "exactly the same language" as the state's civil rights statutes.  The senator who introduced the 1974 measure stated that it adds language to the statute so "that the locals may, within these sections, be more comprehensive and then so would be able to enforce them at the local level."  From this, the AG draws the inference that the language was intended to support local enforcement and was not intended to allow localities to add more classifications for protection.  That is not the only interpretation that could be given to the senator's comment, which could equally support the conclusion that his amendment was intended to allow localities to adopt more expansive measures that provided greater protection against discrimination -- which is what "more comprehensive" sounds like.

Citing some later cases and amendments, the AG argues that the "more comprehensive" language was intended to counter any argument that local civil rights agencies did not have the authority to enforce the anti-discrimination polices already embodied in state law, and that the state law should be construed to be the exclusive source of authority for local law, relying on court opinions that take the view that municipalities in Nebraska don't have any legislative authority beyond what has been delegated to them by state statutes.

Nebraska, needless to add, does not by state law forbid discrimination based on sexual orientation or gender identity or expression.

The AG Opinion then goes on to warn that any municipality or local officials enforcing an invalid civil rights statute could be opening themselves up to federal constitutional tort liability under 42 USC sec. 1983, which creates a cause of action for damages and attorneys fees for an individual who is deprived of their federal rights under color of state law.  The paragraph containing this analysis seems farfetched at best.  One wonders how any employer sued by the city for discriminating based on sexual orientation could have a valid claim that its federal constitutional rights had been violated.  The federal constitution does not endow employers with a right to discriminate on any basis, at least since the Supreme Court receded from the Lochner due process doctrines of the early 20th century.

This AG Opinion reeks of politics rather than legal reasoning, and local officials are taking it in that spirit.  According to press reports we've seen, local officials in Omaha do not plan to abandon their recently-enacted civil rights law, and proponents of the measure in Lincoln remain undeterred.

 

 

President Obama, Same-Sex Marriage, and State Law

On May 9, President Barack Obama took the momentous step of being the first President of the United States to take the position that same-sex couples should be allowed to marry.  According to press reports, he had "evolved" to this point of view by early this year, and had planned to make a public statement shortly before the Democratic National Convention, but the timing was sharply accelerated after Vice President Joseph Biden stated his support for same-sex marriage in an interview broadcast on "Meet the Press" on Sunday, May 6.  The next day, Secretary of Education Arne Duncan was asked on a television news program whether he supported same-sex marriage, and he responded affirmatively, taking the same position that Secretary of Housing and Urban Development Shaun Donovan had previously stated.  As media pressure mounted for the President to clarify his views, the White House hurriedly arranged for the President to sit for an interview on May 9 with ABC News Correspondent Robin Roberts, during which he stated "I think same-sex couples should be able to get married."

Then he went on to say, according to a transcript released by ABC News, "I have to tell you that part of my hesitation on this has also been I didn't want to nationalize the issue.  There's a tendency when I weigh in to think suddenly it becomes political and it becomes polarized.  And what you're seeing is, I think, states working through this issue -- in fits and starts, all across the country.  Different communities are arriving at different conclusions, at different times.  And I think that's a healthy process and a healthy debate.  And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what's recognized as a marriage."

So, on the one hand the President stated that he thinks same-sex couples should be allowed to marry, but on the other hand he stated that this a a local issue to be resolved by each state.  He's both correct and incorrect.

Numerous federal rights and benefits turn on whether a couple is married, and prior to 1996 any marriage sanctioned by a state would qualify a couple for those federal rights and benefits.  Prior to  1996, the question of whether a marriage was recognized for federal purposes -- while in some sense a matter of federal law -- was determined by reference to state law. 

But when Congress passed the Defense of Marriage Act (DOMA) in 1996, it made this a matter of federal law by stating that only the union of one man and one woman could be considered a marriage for federal law purposes.  Thus, departing from our historic practice (and, ironically, at a time when no state was providing marriage licenses for same-sex couples), Congress and President Bill Clinton enacted, for the first time in American law, a federal policy under which some marriages recognized under state law would not be recognized under federal law.  That makes it a federal issue.

In addition, the Supreme Court made it a federal issue in 1967 in Loving v. Virginia when it ruled that the 14th Amendment applies to state decisions about who could marry whom.  In that case, the Court ruled on alternative grounds of due process (fundamental right to marry) and equal protection that a state could not base eligibility to marry on the race of the individuals.  Thus, a Virginia law that made it a crime for a "white person" to "intermarry with a colored person" could not be enforced, because the state did not have a right to interfere in the freedom of two individuals to marry, absent some compelling state interest. 

Consequently, although it is up to the states in the first instance to determine the qualifications for marriage, that determination must be made consistent with the 14th Amendment guarantees of due process and equal protection, under which the state must have a compelling justification if it is going to interfere with individual choice in the selection of a marital partner. 

In opposing constitutional same-sex marriage claims, some courts have tried to narrow Loving v. Virginia to its facts - an interracial different-sex marriage case - and state that the fundamental right identified by the Court was the right of a man and a woman to marry regardless of race.  But to do that is to make the same error that the Court made in Bowers v. Hardwick, identifying the right at issue too narrowly, and thus failing to place the case correctly in context.  The Supreme Court corrected the Bowers v. Hardwick error in Lawrence v. Texas, overruling Bowers and stating that it was wrong when it was decided, because the right at issue was not, narrowly construed, the "right of homosexuals to engage in sodomy" but rather the right of any person, regardless of sexual orientation, to intimate association with a consenting adult partner.

The Hawaii Supreme Court got this analysis right in Baehr v. Lewin (1993), the decision that provoked Congress into passing DOMA.  The Hawaii court said that the state's refusal to issue marriage licenses to same-sex couples was a form of discrimination on the basis of sex, because the state had erected a classification based on sex as a qualification for marriage.  Because under Hawaii's constitution sex is a "suspect classification," any state action making eligibility for a right or benefit turn on the sex of a person could only be upheld if the state had a compelling justification for it.  In a subsequent trial, the judge found that the state government had failed to prove a compelling justification, and ordered that same-sex couples be allowed to marry.  The judge's decision never went into effect because Hawaii amended its constitution to provide that only the legislature can determine whether same-sex couples can marry.  (Recently, the Hawaii legislature passed a civil union law.)

In the Proposition 8 case, then called Perry v. Schwarzenegger, the U.S. District Court ruled in 2010 that the 14th Amendment requires California to allow same-sex couples to marry.  The court based its ruling on both due process (fundamental right to marry) and equal protection.  On appeal, a 9th Circuit panel affirmed on the narrower ground that the record provided no support for finding that California voters had a rational basis for rescinding the right to marry from same-sex couples in the November 5, 2008, election, after the California Supreme Court had ruled in favor of a state constitutional right to same-sex marriage earlier that year.  Because the adoption of Proposition 8 was an act of raw politics, not a reasoned judgment based on valid policy concerns, it could not meet even the least demanding level of judicial review.  Supporters of Proposition 8 have filed a petition with the 9th Circuit for rehearing by a larger panel.  The case may end up going to the Supreme Court, which could address it narrowly along the lines of the panel decision or could deal with the broader ruling of the trial court.

So, as a matter of executive branch authority and legislative authority, marriage has traditionally not been a subject for federal law, as President Obama observed.  However, DOMA has made it a subject for federal law, and Loving v. Virginia has made it a subject for federal law.  The Obama Administration has already answered the question whether the federal government must recognize same-sex marriages, by abandoning any defense of Section 3 of DOMA and filing briefs in pending cases arguing that Section 3 is unconstitutional under the 5th Amendment (which binds the federal government to comply with due process and equal protection principles).  The Obama Administation has yet to take a formal position on the 14th Amendment question: whether state governments are obligated to allow equal marriage rights for same-sex couples.  The Administration could do this by filing amicus briefs in pending same-sex marriage lawsuits in which it is not a party.  Most of the recent marriage litigation has been in state courts raising only state constitutional claims, as to which DOJ participation would not seem appropriate, but more recently such suits have begun to be filed in federal courts, or to raise federal as well as state constitutional claims, even though filed in state court.  It would be a natural move for the Administration to adapt the briefs it has been filing in DOMA litigation and submit them as amicus briefs on behalf of plaintiffs in pending same-sex marriage cases that raise 14th Amendment claims.  When the federal constitutionality of a state law is drawn into question, it would be appropriate, albeit not mandatory, for DOJ to express a view.

Underlying the briefs that DOJ has been filing is the legal analysis summarized by Attorney General Eric Holder in his letter to House Speaker John Boehner explaining why DOJ would no longer defend Section 3 of DOMA.  DOJ determined that Section 3 discriminates based on sexual orientation, and that sexual orientation discrimination was comparable to other forms of discrimination to which federal courts apply "heightened scrutiny."  When heightened scrutiny applies, there is a presumption of unconstitutionality and the government has the burden to show an important government interest that is substantially advanced by the discriminatory policy.  DOJ determined that Section 3 could not survive this test, as they could not identify any important federal government interest that was substantially advanced by systematically and across-the-board refusing to recognize lawfully-contracted same-sex marriages for any purpose of federal law. 

If that same analysis is applied in litigation challenging the refusal of a state to allow same-sex couples to marry, the same sort of question needs to be asked: What important state interests are substantially advanced by excluding same-sex couples from the right to marry?  So far, the state high courts ruling in favor of same-sex marriage have concluded that there is no such state interest at stake  (see, e.g., Massachusetts, Iowa, and Connecticut).  Those that have ruled against same-sex marriage have rested, generally, on some notion of legislative prerogative (as in the Vermont and New Jersey cases, finding a constitutional right to "equal benefits" but not to marriage) or the bizarre "channeling procreation" rationale (embraced in New York, for example, in a notoriously poorly-reasoned opinion).  Merely preserving a traditional definition or expressing moral disapproval of homosexuality would not be sufficient, in light of  the Court's reasoning in Lawrence v. Texas, as Justice Antonin Scalia sarcastically observed in his dissenting opinion.

Thus, President Obama has already taken the legal position that the refusal of the federal government to recognize lawfully-contracted same-sex marriages violates the 5th Amendment, as Section 3 of DOMA cannot survive judicial review, and he has taken the political position that same-sex couples should be able to marry.  The last question for him to address, to complete the circle as it were, is whether the 14th Amendment requires the states, as a legal matter, to allow same-sex couples to marry.  If it does, all of those state constitutional anti-marriage amendments are invalid under the Supremacy Clause, and same-sex marriage would be universally available in the United States.

The President's May 9 statement marked a change of historic importance.  For the first time, a sitting U.S. President has stated that same-sex couples should be able to marry.  But there is still a distance to traverse that is not solely a matter of state law, but also of federal constitutional principle.

Connecticut Supreme Court Rules on Gay Hostile Environment Claim

The Connecticut Supreme Court has ruled that the state law banning sexual orientation discrimination "imposes liability on employers for failing to take reasonable steps to prevent their employees from being subjected to hostile work environments based on their sexual orientation."  The ruling in Patino v. Birken Manufacturing Company, 2012 WL 1570857, released early in May, will be officially published on May 15.  Chief Justice Chase T. Rogers wrote the opinion for the unanimous court.

The plaintiff, Luis Patino, began working for Birken as a machinist in 1977 and continued there until he was discharged in 2004.  His claim of hostile environment discrimination is based on incidents that began in 1991, when he "became the subject of name-calling on the shop floor."  This included "derogatory slurs for homosexuals in Spanish, such as 'pato' and 'maricon,' and in Italian and English, such as 'pira,' 'faggot,' and 'homo.'  The slurs were used in a variety of contexts, including 'faggot go home' and 'faggot get out of here.'"  Patino testified that he heard these statements "very often," sometimes as much as two or three times a day, usually spoken behind his back but loud enough and close enough for him to hear.  He testified that he was devastated and "overwhelmed by anger and by frustration and the humiliation" resulting from harassment.  He said that he was sometimes so upset that his body would shake, his work product would suffer, and it interfered with his sleep.

Patino does not claim that he was fired for being gay.  In a separate lawsuit now pending before a federal agency, he is claiming he was fired for whistle-blowing activities, not specified in the Connecticut Supreme Court's decision.

Patino began to keep a diary recording all the incidents of verbal harassment, but avoided complaining for about five or six years, seeking to avoid any workplace confrontation.  However, he eventually did complain to a supervisor, who called a group meeting and said such language would have to stop.  However, Patino testified, after a few weeks it resumed again.  The court's opinion details a series of complaints that Patino made over the years, but the company never took effective action against his harassers.  Then he began filing complaints with the state's Commission on Human Rights and Opportunities, beginning in 1996, as well as writing letters to company officials.

In January 2004, Patino filed the complaint that led to this lawsuit, alleging that the employer had violated Connecticut's sexual orientation discrimination law (which is a separate enactment from the state's general anti-discrimination statute) "by creating a hostile work environment because of the plaintiff's sexual orientation [and] failing to take adequate measures to alleviate the harassment or to remedy the hostile work environment."  The case went to a jury trial.  The jury ruled for Patino and awarded $94,500 in "noneconomic damages."  The trial court ruled against the employer's post-trial motions to set aside the verdict or reduce the amount of damages, and the employer appealed.

The employer argued that because the gay rights law does not specifically mention the "hostile environment" theory of liability, there is no basis for a legal claim in this case, as the employer took no action against Patino based on his sexual orientation. 

The employer's argument is based on the peculiar history of state civil rights legislation in Connecticut.  Originally, Connecticut's general anti-discrimination statute, which includes a prohibition on sex discrimination, did not mention sexual harassment or hostile environment theories of liability.  Such theories were first proposed during the 1970s in federal litigation under Title VII of the Civil Rights Act of 1964.  Gradually the lower federal courts began to accept the claim that a "hostile environment" might be a basis for a sex discrimination claim, even when the employer had not taken any tangible discriminatory action against the employee, and the Equal Employment Opportunity Commission (EEOC) issued Guidelines summarizing and endorsing the developing case law. 

Connecticut reacted to the EEOC Guidelines by amending its civil rights law to specifically recognize a "hostile environment " sex discrimination claim, even before the U.S. Supreme Court issued its key decisions which endorsed the EEOC's Guidelines in the mid-1980s.

Thus, Connecticut's anti-discrimination law, unlike Title VII or the laws of most other states, specifically authorizes a legal claim for sex discrimination based on a hostile environment.  However, the subsequently enacted Connecticut gay rights law does not specifically mention hostile environment claims.  Thus, the employer in this case argued, such a claim should not be available as a matter of state law since it wasn't specifically mentioned in the statute.

In rejecting this argument, Chief Justice Rogers pointed out that the Connecticut anti-discrimination statute also provides that federal court decisions under Title VII would provide the method of interpreting and applying analogous provisions of Connecticut's civil rights law.  Since the federal courts have adopted the view that a hostile environment claim may be brought under Title VII based on any of the prohibited grounds of discrimination, not just sex, a similar analysis should apply under the Connecticut statute.

Specifically, the U.S. Supreme Court has ruled that harassment that is severe or pervasive and that is directed at an employee because of any of the characteristics listed in the Civil Rights Act (race or color, religion, national origin, or sex) is unlawful discrimination, provided that it is severe or pervasive that it can be said to have change the "terms and conditions of employment" of the individual.  The Connecticut Supreme Court has now adopted that same analysis for the ban on sexual orientation discrimination in this case.

The court rejected the employer's argument that Patino had failed to meet the burden of showing severe and pervasive harassment.  As to that, the court said, since a jury had ruled in favor of Patino, the issue wasn't whether the Supreme Court agreed with that result, since it is up to the jury to make its decision based on the evidence presented at trial.  The more limited role for the Supreme Court was to determine whether the trial judge committed an abuse of discretion by denying the employer's post-trial motion to set aside the verdict.  As long as there was evidence in the record to support the jury's verdict, the Supreme Court would not second-guess the trial judge on its sufficiency.

The employer also argued that the damages were excessive, pointing out that Patino had not presented any medical evidence as to emotional distress, so that the only evidence concerning his injury suffered as a result of the harassment was his own testimony.  The Supreme Court rejected this argument, observing that a plaintiff is competent to testify about the impact that harassment has had on him, and evidently the jury found that uncontradicted testimony to be credible.  Furthermore, the court pointed out that the amount awarded was not out of line compared to verdicts in other hostile environment cases, which tended to range between $50,000 and $150,000.  The court rejected the employer's argument that there must be corroborative evidence for such a damage claim. 

Patino's diary turned out to be an important factor in the case, because it provided detailed evidence that helped to show a pattern of harassing conduct stretching back over many years and added credibility to his testimony in court.  The court quoted extensively from the diary to find supportive details to rebut the employer's arguments.  For example, the employer argued that most of the comments cited by Patino could not support his claim because they were not made to his face, and thus not necessarily directed at him, but the court quoted from diary entries documenting some slurs that were stated to Patino's face, and added that under hostile environment precedents derogatory workplace statements don't have to be made to the plaintiff's face if they are severe or pervasive enough to have poisoned the workplace atmosphere.

The employer's most bizarre argument was that one particular slur was not necessarily a slur at all, because the word that was used, 'pato,' while sometimes used as a homophobic slur, literally means a male duck in Spanish, and so might not have been used as a slur.  Chief Justice Rogers pointed out that "other courts have noted that English words like 'fag' and 'faggot' similarly have several uses in the English language.  Nevertheless, those courts have explained that, when one definition of a term predominates, courts may follow the interpretation most reasonable in the context."  He quoted an Illinois case that had refuted this argument, stating, "To suggest otherwise serves only to further tax the gullibility of the credulous and require this court to espouse a naivete unwarranted under the circumstances."  Concluded Rogers, "As there are presumably few occasions on which employees would discuss male ducks on the shop floor of an industrial plant such as the defendant's, the argument that the plaintiff's co-workers did not intend to use the word pato in a derogatory way lacks merit."

Attorneys Jon L. Schoenhorn and Sara J. Packman represent Patino.  Amicus briefs were filed by attorneys from Lambda Legal and the Connecticut Employment Lawyers Association, and the Commission on Human Rights and Opportunities also filed an amicus brief in support of Patino.

Maine SJC Rules in Gestational Surrogate Case

The Maine Supreme Judicial Court issued a unanimous ruling on May 3 in Nolan v. LaBree, 2012 ME 61, holding that the Maine District Court has jurisdiction to make a declaration of maternity in a gestational surrogacy case.  Overruling the Bangor District Court, the SJC found that under Maine's version of the Uniform Act on Paternity, the court is authorized to make a declaration of "parentage," observing that this "gender neutral" language reflected legislative intent that the Act was not restricted to declarations of paternity, despite its title.  "The titles of chapters and sections are not legal provisions," said the court.

The case involved a heterosexual married couple, Robert and Celia Nolan.  They enlisted Kristen LaBree, a heterosexually-married woman, to be their gestational surrogate for the child that was born on December 9, 2010.  "Approximately nine months before the birth," wrote Justice Ellen A. Gorman, "a zygote created through the in vitro fertilization of Celia Nolan's egg cell with sperm from her husband, Robert Nolan, was implanted in Kristen."  There was no dispute about the facts, and Kristen LaBree and her husband disavowed any interest in being the legal parents of the child, to whom neither are genetically related.  However, upon the birth of the child, the Department of Health and Human Services filed a birth certificate listing the LaBrees as the parents of the child.

This is not as strange as it may sound.  The normal procedure when a child is born is to make a birth record identifying the birth mother, and if she is married, identifying her husband as the father.  But in a surrogacy case, the next step is to file an action for a declaration of parentage, and then to use that declaration to get a new birth certificate issued showing the legal parents.  In this case, the Bangor district court judge issued a declaration of paternity for Robert Nolan, but refused issue a declaration of maternity for Celia Nolan, despite uncontested testimony that her egg had been used to create the zygote.  The trial judge opined that under Maine statutes the court could not issue a declaration of maternity, as there was no specific statutory authorization for one, as mothers are normally identified at birth through the observation of those present at the event.  Instead, the trial judge declared that Celia Nolan is the "de facto" mother, and awarded sole parental rights and responsibilities to the Nolans. 

The error of the trial court was to assume that because the Uniform Act on Paternity does not specifically mention maternity, it does not give the court jurisdiction to issue a declaration of maternity.  Since the actual provision in question uses a gender-neutral term, "parentage," the SJC found that the failure to mention maternity was not an issue, as the term "includes both paternity and maternity."

The court took note that this was an uncontested case.  The LaBrees were not seeking custody or recognition as the parents of this child.  "We therefore have no occasion to consider here how to analyze a case in which the parties do not agree," the court commented, noting that there was no need for it to address constitutional issues raised by the Nolans in their appeal.  If the Department of Health refuses to issue an appropriate birth certificate upon presentation of the declarations of paternity and maternity, said the court, the Nolans could initiate a new lawsuit against the Department.

Christopher M. Berry argued the appeal for the Nolans.  Numerous amicus briefs were filed in the case, including a brief from Gay & Lesbian Advocates & Defenders of Boston.  As gay men have begun to contract with gestational surrogates to bear children for them, usually using anonymously donated eggs, this construction of the statute has obvious importance in LGBT law.  Significantly, the court's construction of the Uniform Act on Paternity did not turn in any way on the sex of the parties.