Thursday, October 8, 2020

Don’t Worry About Roe, Conservative Prof Misleadingly Argues

“Let yourself go,/ Relax,/ And let yourself go.

Relax,/ You’ve got yourself tied up in a knot.”

 

I had originally reacted with incredulity about a recent effort to paint Amy Coney Barrett’s nomination to the Supreme Court as largely irrelevant to the fate of Roe v. Wade and constitutional protection for reproductive rights. I drafted a blog entry with the title and epigram above. But I secured publication of my commentary in law.com’s The Recorder here. So, with permission of The Recorder, I present that commentary below.

 

 

Reprinted with permission from the Oct. 8, 2020 issue of The Recorder. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited.

 

Law Professor’s Argument Is No Reason Not to Worry About ‘Roe’

 

David Cruz, law professor at the University of Southern California Gould School of Law, says a recent op-ed from Stanford’s Michael McConnell is misleading about the security of Roe v. Wade and abortion rights in the nation’s high court with the addition of Judge Amy Coney Barrett.

 

By David Cruz | October 08, 2020 at 08:00 AM

 

Conservative law professor Michael McConnell has published an op-ed in the Washington Post essentially telling the nation to take a chill pill about the confirmation of President Donald Trump’s nominee to the Supreme Court of the United States. Replacing liberal Supreme Court Justice Ruth Bader Ginsburg with conservative Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit “would not end abortion rights,” he says. Unfortunately, his argument rests on errors a constitutional law professor at Stanford should not make and is misleading about the security of Roe v. Wade and abortion rights in the Supreme Court after Barrett fills Ginsburg’s seat.

 

In the op-ed, McConnell tries to reassure the large portion of the American public who approve of women’s constitutional reproductive rights that Roe has not in the past been overruled despite numerous Supreme Court appointments by conservative presidents starting with Ronald Reagan. And according to McConnell, it “will not be lightly overruled” by the court even with Barrett installed. As supporting evidence, he argues: “Roe was reaffirmed this summer, in effect, by June Medical, with a majority opinion written by Chief Justice John G. Roberts Jr., an appointee of President George W. Bush.”

 

Almost everything about this sentence other than John Roberts’ position as chief justice and the president who approved him is wrong or at least misleading.

 

Start with Roberts’ opinion in June Medical Services v. Russo. In this case from June 2020, the Supreme Court by a 5-4 vote held restrictive Louisiana abortion regulations were unconstitutional. This shows us that Roe is safe, McConnell in effect says, because Roberts wrote the “majority opinion” in June Medical, showing that even judicial conservatives aren’t chomping at the bit to overrule Roe.

 

This argument that abortion rights will continue to be upheld doesn’t survive elementary math. It takes five votes from the nine justices to form a majority. With Ginsburg on the Supreme Court there were four more liberal Justices, who if they picked up just one vote could achieve more liberal results. With Barrett replacing Ginsburg, that leaves three liberals, who would need two of the more conservative justices to agree on any outcome, such as adhering to Roe and subsequent decisions protecting abortion rights. The fact that the four liberals were joined by Roberts in striking down the law challenged in June Medical does not mean that any of the other conservative Justices would do so—especially since the four on the court were unwilling to do so this summer.

 

In addition, McConnell grossly oversells Roberts’ position in June Medical. He is flatly incorrect in stating that Roberts wrote the “majority opinion” in the case. As the link in his op-ed to the official Supreme Court opinion makes abundantly clear, Roberts’ opinion in the case was not a “majority” opinion. A majority of nine is five or more, but Roberts’ opinion concurred in the judgment in the case (the outcome, but not the opinion). It was a solo concurrence, expressing only the views of the chief justice. The lead opinion in June Medical was a plurality opinion written by Justice Stephen Breyer for himself and the three other more liberal justices of the court. There simply was no majority opinion in the case, which matters because the court has often treated the lack of a majority opinion as a reason a precedent is more susceptible to overruling.

 

Some have argued that the holding of June Medical is contained in Roberts’ solo concurring opinion that espouses a much less protective version of doctrine than that applied in the Supreme Court’s Whole Woman’s Health v. Hellerstedt decision on which the more liberal Justices relied. In a case where there is no majority opinion, the Supreme Court has said that the holding should be identified pursuant to Marks v. United States, 430 U.S. 188 (1977), which asks which of the concurring justices offers the narrowest reasoning.

 

The right way to operationalize the Marks rule has divided scholars and courts alike. And, as professor David Cohen of Drexel University has noted, lower courts are already disagreeing about whether Roberts’ view in June Medical constitutes the holding under Marks. Cohen has cogently argued that even accepting Marks, prior Supreme Court precedent applied by the June Medicalplurality, offering more protection to reproductive rights than Roberts’ concurrence, remains the governing law. If that is true, the loss of Ginsburg from the June Medical majority and her replacement with Barrett could well be enough to tip the balance in a way that matters greatly.

 

Even without overruling RoeWhole Woman’s Health, or other precedents protecting abortion rights, however, the Supreme Court could effectively gut them. First, rights can be undermined by narrowing interpretations, increasingly limiting the circumstances under which the rights apply, rather than by outright overruling of precedents. Indeed, Supreme Court justices dissenting from conservative majorities that have upheld abortion restrictions ostensibly under Roe or that case’s “central holding” have decried just such sapping and undermining.

 

This is a technique quite familiar to Roberts, observable for example in his treatment of precedent formally upholding the preclearance requirement of the federal Voting Rights Act of 1965 but gutting it by striking down that important law’s provision subjecting specific states to the requirement to obtain judicial or Justice Department approval to change their voting laws in his 2013 opinion for the conservative majority (Shelby County v. Holder, 570 U.S. 529 (2013)).

 

Second, McConnell’s op-ed does not address Roberts’ very narrow basis for voting in June Medical to hold the challenged Louisiana abortion regulations unconstitutional. In my view, with that omission it is highly misleading of McConnell to suggest that Roberts “reaffirmed” Roe. Roberts’ solo concurrence expressly explained that he voted as he did only as a matter of stare decisis, respect for the court’s precedent.

 

That is very different from voting because you are committed to upholding a precedent. Indeed, Roberts candidly stated in June Medical that he was voting to adhere to Whole Woman’s Health’s protection of abortion rights “in deciding the present case”—not in deciding future abortion rights disputes—because “neither party has asked us to re-assess the constitutional validity” of the prior precedent’s rule. Under Roberts, this court has expressly overruled other precedent dating back to the 1970s, so his vote in June Medical should give scant hope to those wishing the court to continue to interpret the Constitution to protect abortion rights.

 

As a constitutional scholar at a top law school, McConnell surely knows all this. One can only speculate why he omitted it from his op-ed. Regardless of his motivation, the people of the United States should not be fooled into thinking that the replacement of Ginsburg by Barrett does not dramatically increase the risk to constitutional reproductive rights.

 

David B. CruzNewton Professor of Law at the University of Southern California Gould School of Law, is a constitutional law expert focusing on civil rights and equality issues, including the rights of lesbian, gay, bisexual and transgender persons. He is the co-author (with Jillian Weiss) of Gender Identity and the Law (forthcoming, 2020) (Carolina Academic Press).

Friday, July 10, 2020

Damn the Consequences, Gorsuch Says

“So let the chips fall where they may
And let these matters be settled this way
We'll let our judgement get carried away”

Yesterday, the Supreme Court ruled, as described by Chief Justice Roberts in his dissent, that “a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the State may not prosecute serious crimes committed by Indians.” Three and a half weeks earlier, the Court ruled that in forbidding workplace discrimination on the basis of sex, Title VII of the Civil Rights Act of 1964 forbade discrimination on the basis of sexual orientation and transgender status, a holding that Justice Alito’s dissent criticized for its “far-reaching consequences.” What do they have in common besides their potentially sweeping implications? Both are basically statutory (and, for the former, treaty) interpretation cases, both purport to adhere to the text of the relevant laws and disregard the consequences of the interpretations each adopts, and the majority opinion in each case was written by Trump appointee Justice Neal Gorsuch.
         
Yesterday’s decision in McGirt v. Oklahoma was joined by the four more liberal Justices (Ginsburg, Breyer, Kagan, and Sotomayor). It holds that an 1833 treaty between the United States and the Creek Nation established a reservation in what is now Oklahoma (and which encompasses most of Tulsa), and that the federal Major Crimes Act accordingly precludes state court prosecutions of Indians for major crimes committed in that portion of Northeast Oklahoma. Instead, any such criminal prosecutions would have to be brought by the federal government or the Creek Nation under their respective laws. In reaching its conclusion that subsequent federal laws did not disestablish the Creek Reservation, Gorsuch insists that “[w]hen interpreting Congress’s work in this arena, no less than any other, our charge is usually to ascertain and follow the original meaning of the law before us.” A court may not “favor contemporaneous or later practices instead of the laws Congress passed.” Explicitly emphasizing the point, the Court “restate[d] the point. There is no need to consult extratextual sources when the meaning of a statute’s terms is clear. Nor may extratextual sources overcome those terms. The only role such materials can properly play is to help ‘clear up . . . not create’ ambiguity about a statute’s original meaning.”

And the sweeping consequences of the Court’s decision were not a reason to change the meaning of the terms of the law. As the majority opinion summarized the argument: “If we dared to recognize that the Creek Reservation was never disestablished, Oklahoma and dissent warn, our holding might be used by other tribes to vindicate similar treaty promises. Ultimately, Oklahoma fears that perhaps as much as half its land and roughly 1.8 million of its residents could wind up within Indian country.” Yet the Court flatly rejected the argument, dismissing it because “dire warnings are just that, and not a license for us to disregard the law.”

This fealty to a textualism often indifferent to consequences where statutory text is viewed as clear   reminiscent of Justice Oliver Wendell Holmess sense of duty as a judge to adhere even to “foolish laws for “if my fellow citizens want to go to Hell I will help them. Its my job  also characterized Justice Gorsuch’s earlier opinion in the title VII case Bostock v. Clayton County, Georgia (discussed here). There, joined not only by the Court’s more liberal Justices but also by Chief Justice Roberts, Gorsuch insisted (with good reason) that discrimination on the basis of sexual orientation or transgender status is sex discrimination, and that Title VII therefor forbids it. His majority opinion was undeterred by the dissenters’ invocation of supposedly broad consequences of adopting that interpretation of the statute. Whether the objection was couched in terms of legislative intent or what the Court saw as the closely related notion of expected applications of a statute, Gorsuch rejected the idea that consequences of his statutory interpretation count as a reason to “decline to enforce the plain terms of the law.” This was true even though the interpretation the Court was embracing was monumental in its potential significance.

The Court in Bostock relatedly rejected the idea that “the no-elephants-in-mouseholes canon” of statutory interpretation – the idea that Congress does not hide major regulatory changes in minor statutory provision – supported the effort to limit Title VII’s notion of prohibited sex discrimination.
We can’t deny that today’s holding—that employers are prohibited from firing employees on the basis of homosexuality or transgender status—is an elephant. But where’s the mousehole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries—virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along.
The fact that “undesirable … consequences” might follow from the Court’s interpretation of Title VII was a mere “naked policy appeal[,]” and to embrace that would abandon “any pretense of statu­tory interpretation.”

Justice Gorsuch’s ideas of what statutory text does and does not plainly say is contestable – as the dissents in these cases believed – but his textualist approach to statutory interpretation may lead him places that are more ideologically diverse than we might see were he not to profess that interpretive commitment.

Monday, June 15, 2020

Title VII Means What It Says, Supreme Court Rules, Cheering LGBT Workers

“But you got dreams
He’ll never take away”

In Bostock v. Clayton County, the U.S. Supreme Court ruled today that firing employees because they are “homosexual or transgender” violates the ban on sex discrimination in Title VII of the Civil Rights Act of 1964, the major federal employment discrimination statute. This is a position LGBT people have taken since shortly after the statute was enacted; it is a position long advocated by numerous legal scholars, including me. It is the interpretation of the statute that was prevailing among more recent lower court decisions, in contrast to older judicial opinions. By embracing what Justice Gorsuch, writing for the six-member majority including the more liberal Justices (Ginsburg, Breyer, Kagan, and Sotomayor) and Chief Justice Roberts, considered the “ordinary public meaning” of the words of the statute when Congress passed it in 1964, the Court has assured that countless people in the U.S. have legal protection against anti-LGBT workplace discrimination, even in states that have not themselves enacted express bans on sexual orientation or gender identity discrimination.

The Court’s decision in Bostock also has potentially much broader application. Many other statutes prohibit sex discrimination. The Bostock decision is about one specific statute, Title VII, so it does not directly, immediately require that other statutes banning sex discrimination also reach sexual orientation and gender identity discrimination. But the reasoning in the majority opinion in Bostock could well lead the Supreme Court to that conclusion in further cases. If so, then it might well rule that the Trump administration’s attempt to roll back an Obama era regulation under the Affordable Care Act (ACA), which until Friday interpreted the ACA’s ban on sex discrimination to reach sexual orientation and gender identity discrimination, is contrary to the statute and legally void.

In addition, the constitutional guarantee of equal protection of the laws has been implemented by judicial doctrine giving government more or less deference when courts review different forms of government discrimination. Age discrimination is upheld unless the reviewing court concludes the plaintiff showed the government lacked a rational basis for its action; rational basis review is a very easy standard for the government to meet. But sex discrimination gets less deference, with courts supposed to uphold it only if the government discrimination proves that its action survives a form of heightened review often called intermediate scrutiny. It’s not enough there to have a rational basis; the discrimination must serve not just a legitimate purpose but one the courts will judge “important,” and the sex discrimination cannot just be loosely connected to the purpose in any “rational” way; rather, the discrimination must be “substantially related” to the discrimination. This is a much more demanding standard, one difficult for government actors to meet. Although Bostock was grounded in the meaning of a statutory text that proscribes “discrimination” “because of” “sex,” it would not be a stretch to see the Supreme Court rule that the Bostock reasoning shows that the constitutional concept of sex discrimination embraces sexual orientation and gender identity discrimination. This would then extend protection against governmental discrimination under the Constitution even where statutes don’t reach. That could have enormous benefit for LGBT people in a variety of contexts, including the federal government’s transgender military service ban.

Thursday, June 7, 2018

Respectfully, You Lose: Masterpiece Cakeshop gets cited in state court


“Oh baby refrain from breaking my heart”

     In what appears to be the first judicial opinion to cite the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, an Arizona appeals court has rejected a claim by a hand-painted and hand-lettered stationery business and its Christian owners for a religious exemption from Phoenix’s law forbidding sexual orientation discrimination.  Decided three days after Masterpiece CakeshopBrush & Nib Studio v City of Phoenix rejected the Arizona state constitutional and statutory free speech and religion claims brought by the same Christian right advocacy organization – the Alliance Defending Freedom (“ADF”) – that represented the Masterpiece Cakeshop.  This time, however, there was not even colorable hostility toward the plaintiff owners’ religion, and ADF and the plaintiffs lost.
     The plaintiff business and owners had filed a preemptive suit seeking a declaration that it would violate their free speech and religious rights under the Arizona Constitution and the Arizona Free Exercise of Religion Act (“FERA,” parallel to the federal Religious Freedom Restoration Act or “RFRA”) if Phoenix applied its public accommodations nondiscrimination law to require them to custom-make merchandise for any same-sex wedding. The appeals court in Brush & Nib rejected each of their arguments.* It noted that the plaintiffs did not expressly argue that Phoenix’s law would violate the Free Exercise Clause of U.S. Constitution, but the court pointedly observed – citing Justice Kennedy’s majority opinion in Masterpiece Cakeshop – that the obligation under that clause was not to act with anti-religious hostility, which it concluded Phoenix had not done: “There is no evidence in the record to support any suggestion that Phoenix’s adoption of [the city’s public accommodations provision], or its interpretation as it relates to Brush & Nib, has been anything other than neutral toward and respectful of their sincerely-expressed religious beliefs.” (This is unsurprising: This was a suit in advance of any enforcement action due to rejection of a client, unlike the facts in Masterpiece Cakeshop.) The Arizona court went on to agree with Justice Kagan’s Masterpiece concurrence that “‘a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait.’”
     As “background” to its analysis of each of the plaintiffs’ claims, the Brush & Nib court quoted the Masterpiece Cakeshop opinion at length.  In particular, it included Justice Kennedy’s pronouncement that “it is a general rule that [religious and philosophical] objections [to same-sex couples’ marrying] do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law[,]” as well as Kennedy’s supporting citation to Newman v. Piggy Park Enterprises (1968), where the U.S. Supreme Court had rejected a business owner’s claim that the First Amendment exempted him from a law against racial discrimination because of his religious beliefs.  Later, in rejecting the plaintiffs’ free expression claim, the Arizona court insisted that “allowing a vendor who provides goods and services for marriages and weddings to refuse similar services for gay persons would result in ‘a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations’” (again quoting Justice Kennedy’s Masterpiece Cakeshop opinion).  And in rejecting the plaintiffs’ free speech argument challenging the part of Phoenix’s public accommodations law specifically banning businesses from advertising or displaying signage indicating their intent to engage in discrimination forbidden by that law, the court quoted and characterized Masterpiece Cakeshop as “disapproving of [a] baker or other businesses posting signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ observing such would ‘impose a serious stigma on gay persons.’”
     The Arizona court took the U.S. Supreme Court at its word, applying the holding of Masterpiece Cakeshop and following its statements about the legitimacy and importance of laws forbidding sexual orientation discrimination.  (And it did so even in a case decided under state law, in part because it relied on federal constitutional law as a guide to some of its state law interpretations.)  May other courts follow its lead.


* The court did hold unconstitutionally vague a portion of the Phoenix law barring signs or communications indicating that a person “would be unwelcome, objectionable, unacceptable, undesirable or not solicited” on one of the forbidden grounds of discrimination, but it upheld the sufficiently powerful ban on ads or communications “stat[ing] or impl[ying] that any facility or service shall be refused or restricted because of” one of the forbidden grounds.

[Edited June 8, 2018 to add footnote]

Tuesday, June 5, 2018

Is It the End of the Line for Charlie Craig & David Mullins’s suit against Jack Phillips?  Masterpiece Cakeshop as Bush v. Gore

“Why leave me standing here?
Let me know the way”

A number of commentators have already noted a similarity between the Supreme Court’s decision yesterday in Masterpiece Cakeshop and its decision in 2000 in Bush v. Gore.  Both opinions self-consciously frame their judgments in narrow terms, raising a question whether they provide much if any guidance for other similar disputes.  In holding that the presidential election recount in Florida deprived voters of equal protection of the laws, the Court’s per curiam (“for the court,” unsigned, with authorship attributed to no specific Justice) opinion in Bush v. Gore stated:  “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”  In Masterpiece Cakeshop, the introduction of the Court’s opinion concludes: “Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the [Colorado Civil Rights] Commission’s actions here violated the Free Exercise Clause; and its order [directing the bakery not to discriminate against same-sex couples such as Charlie Craig and David Mullins] must be set aside.”  Both these pronouncements have supported concerns that the Court is treating its authoritative declarations of law as being (to borrow Justice Owen Roberts’s words in dissent from Smith v. Allwright (1944)) in “the same class as a restricted railroad ticket, good for this day and train only.”  People could long debate whether those, or other, instances are appropriate judicial minimalism, examples of the Supreme Court not deciding more than it needs to, or if instead they are unhelpful punting, ducking hard constitutional issues on which the nation needs definitive guidance.

But there’s another respect in which the Court’s decision in Masterpiece Cakeshop resembles its ruling in Bush v. Gore.  Both cases not merely vacated but “reversed” the judgments of the courts below.  Bush v. Gore held that the election recount ordered by the Florida Supreme Court violated that state’s voters’ right to equal protection of the law; Masterpiece Cakeshop held that the remedial order entered by Colorado’s Commission violated the baker Jack Phillips’s right to the free exercise of religion.  So, both decisions direct outcomes in the suits at issue.

But, in another point of commonality, it’s not clear these Supreme Court reversals had to/have to end the litigation at issue. In Bush v. Gore, the U.S. Supreme Court thought that after its ruling no recount would be possible consistent with Florida law and the notion that Florida election law contemplated finishing recounts by December 12, a so-called “safe harbor” date regarding slates of electors.  But in addressing that earlier, the Florida Supreme Court was talking about earlier phases of electoral disputes (“protests”), not the kind of electoral “contest” that was at issue in Bush v. Gore.  It should have been open to the Florida Supreme Court on remand to say, ‘the U.S. Supreme court misunderstood our opinion and misinterpreted Florida law, so on this election contest, let’s have a recount now that addresses SCOTUS’s equal protection concerns and gets our electors selected before the (later) time Congress actually will count electoral votes.’  It did not do so, perhaps intimidated by SCOTUS’s per curiam opinion.

In Masterpiece Cakeshop, the Supreme Court was even less forthcoming about the remedy. It reversed the court below, finding a constitutional violation in the Commission’s order where that court had seen none.  It specified that “the order must be set aside” and, more comprehensively later, “the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.” (my emphasis)  But the Supreme Court did not hold that Colorado’s Anti-Discrimination Act (CADA) could not be applied against the baker and the cakeshop; SCOTUS only held that it could not be applied with hostility toward religion.  And SCOTUS did not say that a newly constituted Commission (perhaps with one commissioner whose comments gave some Justices pause recusing; the other Commissioner is already no longer seated) could not revisit the questions whether or not the baker’s conduct violated CADA and, if so, what consequences should follow.  Justice Gorsuch’s concurring opinion, joined by Justice Alito, may have given the impression that they believed that was what must follow; they opined:  “Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment.”  But a majority of the Court did not say even that.  And while Justice Thomas, joined by Justice Gorsuch, would have held that the baker’s free expression rights prevent Colorado from enforcing CADA against him even in the absence of anti-religious hostility, again, the Court did not reach that broader constitutional question.  Absent some procedural obstacle in Colorado law, if the Colorado state court and then the Commission have the courage of their convictions, it seems to me that they may address those broader questions – fairly and without hostility to religion – even after complying with the U.S. Supreme Court’s decision in Masterpiece Cakeshop.

Friday, June 30, 2017

Equal Is Equal* (*some exceptions may apply): Marriage Equality in Texas and Pidgeon v. Turner

“Found alternative sides to the things that were said”

Acting in Pidgeon v. Turner (HT @JoeDunman for the opinion copy), the Supreme Court of Texas (SCOTX) has gratuitously protracted the efforts of the city of Houston to treat its lesbian, gay, and bisexual employees constitutionally and hence equally. The court unanimously reversed a lower appeals court’s order allowing Houston to pay equal benefits to married employees whether they are in same-sex couples or different-sex couples. SCOTX then sent the case back down to the trial court for pointless proceedings that can only have one possible outcome under current U.S. Supreme Court precedent – affirmation of Houston’s practice and rejection of the claim that it was unlawful.

The background of the Pidgeon case goes back to the Supreme Court of the United States (SCOTUS) and its first marriage equality holding. On June 26, 2013, SCOTUS decided Windsor v. United States. Windsor held that the heart of the so-called Defense of Marriage Act (DOMA), which denied federal recognition of lawfully state-licensed marriages of same-sex couples, violated constitutional equality principles. In response and on the advice of counsel blessed with more brain cells than ideological fervor, the city of Houston sensibly concluded that it was unconstitutional to deny employees spousal benefits if they had married a same-sex spouse lawfully in another state or country. Then-mayor Annise Parker (later replaced by Sylvester Turner) accordingly directed the city to provide such benefits. A month later, Houston taxpayers and voters Jack Pidgeon and Larry Hicks sued the mayor and city (collectively, “the city”) to enjoin provision of such benefits, contending that it violated various Houston and Texas laws limiting marriage to different-sex couples. Pidgeon and Hicks won in the trial court, but the city appealed.

While the appeal was pending, on June 26, 2015, SCOTUS issued its second marriage equality decision in Obergefell v. Hodges. Obergefell combined cases from four different states and four lower federal courts, but the decision swept even more broadly. Although the Court ruled that “the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite- sex couples[,]” it also made clear that “same-sex couples may exercise the fundamental right to marry.” Full stop. All same-sex couples, not just those in a few states. Indeed, the Court noted that part of why it took up these cases was that disagreements among lower courts had “caused impermissible geographic variation in the meaning of federal law.” The Court held as well that “there is no lawful basis for a State” – any state – “to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” And the Court underscored that “The Constitution … does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” 

Under this reasoning, if same-sex couples were allowed to marry but not given the same benefits, they would not be treated equally, and this then would appear not to be marriage “on the same terms” as different-sex couples. Hence the Texas appeals court in Pidgeon’s case reversed the trial court’s injunction against the city.

Convinced of the righteousness of their cause, Pidgeon and Hicks tried to appeal to SCOTX. Like SCOTUS, most of SCOTX’s jurisdiction is discretionary. And the Texas Justices originally denied review in the case on September 2, 2016 – a fact Justice Boyd omits from his recitation of the procedural history of the case in his opinion for the court in Pidgeon. Then, following a mail campaign and pressure from top Texas Republican officials including the Governor, Lt. Governor, and Attorney general (see this Texas Tribune account), the court reversed course and granted review on the day of Donald Trump’s inauguration. (Today SCOTX revealed in its opinion that it treated all such “emails, letters, and postcards” as friend of the court briefs. I’m reasonably confident this is highly unusual as a general matter, but maybe a Texas procedure maven can shed light on whether it’s common practice for SCOTX.)  It bears noting here that all of the Justices on SCOTX face retention elections periodically, with three of them up in 2018, which seems likely to make them more susceptible to public pressure as they try to interpret law.

In its ruling, SCOTX’s primary procedural defense of taking up the case is its claim that the lower court erred in telling the trial court to revisit the case consistently with Obergefell and a Fifth Circuit U.S. Court of Appeals case, DeLeon v. Abbott. De Leon held Texas’s laws excluding same-sex couples from marriage unconstitutional, and SCOTX is right that its reasoning was not generally binding on Texas state courts. But if that was plain error, it was harmless error, as Obergefell made clear as a matter of supreme, federal, constitutional law that De Leon was right.

On the merits, SCOTX remanded because the Justices “agree with Pidgeon that the [U.S.] Supreme Court did not address and resolve that specific issue [of whether government employee spousal benefits must be provided equally] in Obergefell. ‘Whatever ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage are unstated at best . . . .’ Coker v. Whittington, 858 F.3d 304, 307 (5th Cir. 2017). The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and—unlike the Fifth Circuit in De Leon—it did not hold that the Texas DOMAs are unconstitutional.” (Obergefell made plain that they are unconstitutional.)  And, disingenuously or shockingly inept, SCOTX cited SCOTUS’s ruling four days earlier in Pavan v. Smith to support its claim that Obergefell does not clearly require equality in government treatment of married couples:  Already, the Supreme Court has taken one opportunity to address Obergefell’s impact on an issue it did not address in Obergefell, and there will undoubtedly be others. See Pavan, ___ U.S. at ___, 2017 WL 2722472, at *2.” said Pidgeon.

Pavan addressed a constitutional challenge to Arkansas’s refusal to list both spouses of two married female couples on the birth certificates of their children. Because Arkansas law provides that a husband is generally to be listed on the birth certificate when his wife gives birth, the couples had correctly argued that Obergefell’s equality mandate required that a wife be similarly listed when her wife gives birth. The Arkansas Supreme Court (ASC) disagreed, and the couples sought review from SCOTUS. 

Rather than grant review and receive full briefing and hold argument about whether or not this view of Obergefell is correct, however, SCOTUS summarily reversed ASC. As noted in a dissent in Pavan by new SCOTUS Justice Neil Gorsuch, installed by Donald Trump after Senate Republicans acted to deprive President Obama of his constitutional authority to fill Justice Scalia’s seat, “[s]ummary reversal is usually reserved for cases where ‘the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.’” The majority in Pavan apparently thought that was the case. Obergefell, they noted in the first sentence of the opinion summarily reversing ASC, explained that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’” Because Arkansas’s refusal to list both married mothers on birth certificates “infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage,’ [quoting Obergefell], we reverse the state court’s judgment.” Obergefell proscribes such disparate treatment[,]” SCOTUS explained. Thus, SCOTUS understands, as would reasonable people not hell bent on undermining marriage equality, that Obergefell’s interpretation of the Constitution means that government cannot treat married same-sex couples differently from married different-sex couples.

In trying to limit the reach of Obergefell and portray that case as leaving open for debate matters it clearly does not, ASC’s Pidgeon decision sinks even further. It contends that “[o]n the same day the Supreme Court issued its per curiam opinion in Pavan, it also granted certiorari in another case involving a same-sex-marriage issue Obergefell did not address. See Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015), cert. granted sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, — U.S.L.W. — (U.S. June 26, 2017) (No. 16-111). The Court’s decision to hear and consider Masterpiece Cakeshop illustrates that neither Obergefell nor Pavan provides the final word on the tangential questions Obergefell’s holdings raise but Obergefell itself did not address.” This is risible. (Accord, Joshua Block in this tweet.)

Masterpiece Cakeshop is about the constitutional rights (religious and/or expressive) of people who want to resist a state anti-discrimination law that would bar a maker-seller of wedding cakes from discriminating against those who want them for a wedding of a same-sex couple. It is not about what equality of treatment the Constitution requires of government to extend to different-sex and same-sex couples who marry. Masterpiece Cakeshop truly is, at best, tangential to Obergefell and its vindication of same-sex couples’ constitutional right to marry and right to equal protection. Pavan and Pidgeon, however, are clearly about the equal treatment of married couples, same-sex or different-sex. And the teaching of Obergefell and Pavan are pellucid: equal is equal.

That is what the Texas trial court should now say on this pointless remand in Pidgeon, and if it does not, it is what the state appeals court and if necessary SCOTX should say. SCOTX claimed that “Pidgeon contends that neither the Constitution nor Obergefell requires citizens to support same-sex marriages with their tax dollars, but he has not yet had the opportunity to make his case.” He is “entitled to a full and fair opportunity to litigate [his] position[] on remand,” SCOTX said. But there was no need to disrupt the proceedings that would have happened on remand by granting review of the Texas Court of Appeals decision. And since SCOTX in Pidgeon vacated the trial court’s temporary injunction against Houston’s providing equal benefits, this is ultimately just political theater. Harmful political theater, though, designed to give aid and comfort to those who would continue to resist the Supreme Court’s constitutional equality decision in Obergefell and perhaps even to provide an occasion for SCOTUS to revisit marriage equality if more judges of Neil Gorsuch’s ilk find their way onto the U.S. Supreme Court.

Tuesday, April 4, 2017

Full Appeals Court Rules Federal Law Forbids Sexual Orientation Discrimination in Employment

You’re applying for a job/So you’re filling out a form
And for all intents and purposes/You fit into the norm
Until it says to list your next of kin/But there's no box to fit you in

In a landmark decision, the U.S. Court of Appeals for the Seventh Circuit has held that the federal statute barring sex discrimination in employment forbids sexual orientation discrimination.  The 8-3 majority opinion by Chief Judge Diane Woods in significant measure tracks a well-reasoned decision about Title VII of the Civil Rights Act of 1964 adopted in a 2015 ruling by the Equal Employment Opportunity Commission (EEOC). Today’s decision in Hively v. Ivy Tech Community College is likely to be influential as litigants in other cases across the country continue to advocate the same interpretation of Title VII, likely leading the Supreme Court to take the issue up sooner rather than later.

The case arose when lesbian Kimberly Hively was repeatedly rejected for full-time positions and eventually had her part-time teaching contract not renewed by Ivy Tech Community College in Southbend, Indiana.  She sued pro se, arguing in part that Ivy Tech discriminated against her based on her sexual orientation and thus in violation Title VII’s ban on sex discrimination.  Her claim was rejected by the federal trial court, but on appeal she was represented by Lambda Legal.  A three-judge panel of the Seventh Circuit ruled against that argument, holding it foreclosed by older circuit precedent, which is binding on such panels until the Supreme Court or an “en banc” panel of all active Seventh Circuit judges overrules it.

Hively has now overruled such earlier Seventh Circuit precedent and held that, under Title VII, “discrimination on the basis of sexual orientation is a form of sex discrimination.”  The court concluded this as a matter of statutory interpretation, adopting its best view of Title VII without feeling obligated to defer to the EEOC’s interpretation reaching the same conclusion.  The Seventh Circuit court did follow the Supreme Court’s reasoning in a Title VII case about sexual harassment between people of the same sex, Oncale v. Sundowner Offshore Services, Inc.  The lesson it drew from Oncale?  “[T]he fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.”

The EEOC’s decision in Baldwin v. Foxx had ruled sexual orientation discrimination a form of sex discrimination in part based on a sex stereotyping theory, the general bounds of which the Supreme Court had embraced in Price Waterhouse v. Hopkins in 1989.  Here, the full Seventh Circuit court concluded that “Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”  Hence, although the three-judge panel had “described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin,” the en banc court “conclude[d] that it does not exist at all.”

The Baldwin case also relied on an associational theory:  Courts had regularly held that Title VII, which also prohibits race discrimination in employment, is violated when an employer discriminates against employees or applicants in interracial relationships.  The EEOC said that discriminating against women who associate with women (as opposed to men who associate with women) similarly is sex discrimination, and the en banc court in Hively agreed.  It should be no defense to say an employer would discriminate against lesbians and gay men alike, just as it was no defense of laws against interracial marriage, held unconstitutional in Loving v. Virginia (three years after Title VII was enacted) to say that such marriage restrictions discriminated against white and black people alike if they engaged in interracial relationships.

Judge Richard Posner seemingly joined Chief Judge Wood’s majority opinion (despite misgivings about its use of Oncale and Loving) but wrote separately to emphasize that “statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning.”  In his view, such evolutionary interpretation is especially appropriate here because “[n]othing has changed more in the decades since the enactment of the statute than attitudes toward sex.”  (Because he gets the law right, in my view, and shows a humane view of lesbigay people, I’ll cut him his slack for identifying RenĂ©e Richards, who transitioned in 1975, as “the first transgender celebrity,” completely overlooking the widespread attention received by Christine Jorgensen, who transitioned in the early 1950s and was covered on talk shows and front pages of newspapers.)

Judge Joel Flaum, joined by Judge Kenneth Ripple, joined most of Judge Woods’s majority opinion but declined to join Part III, which invoked the Supreme Court’s trend of increasing protection of lesbigay persons in its constitutional decisions.  In their view, the statutory interpretation was fairly simple:  “discrimination against an employee on the basis of their homosexuality is necessarily, in part, discrimination based on their sex” because, in light of how sexual orientation is defined in our society, “[o]ne cannot consider a person’s homosexuality without also accounting for their sex.”

Judge Diane Sykes, joined by Senior Judge William Bauer and Judge Michael Kanne, dissented.  They pressed a by now familiar appeal to “democracy” and a view of statutory interpretation that, despite their protestations to the contrary, nonetheless closely tethers laws to presumed expectations of their enactors of how those laws would apply, rather than reasoning logically about what the words say and mean, as Oncale seems to direct. 

Remember, Title VII prohibits discrimination because of sex.  Even were we to think the dissenters right that “[t]o a fluent speaker of the English language—then and now—the ordinary meaning of the word ‘sex’ does not fairly include the concept of ‘sexual orientation[,]’” that would not make their position right. I’ve advanced parallel arguments elsewhere for why Title VII’s sex discrimination ban forbids anti-transgender discrimination (see pp. 264-265 of my article Acknowledging the Gender in Anti-TransgenderDiscrimination).  Even if “sex” refers to “male” and “female” and we set aside the circumstances of intersex persons, it remains the case, as the Hively en banc majority persuasively argued, that discrimination against someone because she is lesbian is discrimination “because of” sex.

Here, and in rejecting the comparisons the majority appropriately draws, the dissenters seem to think that we should pair up instances of discrimination, so that an employer who discriminates against gay men because of sex (though hiring women similarly attracted to men) and who discriminates against lesbian women because of sex (though hiring men similarly attracted to women) engages in no sex discrimination, rather than two instances of sex discrimination.  This is wrong, as legal scholars including Kenji Yoshino (see p.441 of The Epistemic Contract of Bisexual Erasure) and myself (see Making up Women:Casinos, Cosmetics, and Title VII) have argued in a variety of contexts.


To quote the dissent, “I could go on, but the point has been made.”  The majority opinion offers sound rejoinders to many of the dissenters’ subsidiary contentions.  With luck, other courts will see that and rule the same way.  This would go far toward reducing the discrimination lesbigay people face in many places throughout the country.