hunter of justice

The holiday weeks ahead: December 12 - New Years 2012

December 16 - Oral argument before Judge White
of the Northern District of California in Golinski v OPM, another challenge to the constitutionality of Section 3 of DoMA. Karen Golinski (photo/left), a staff attorney with the Ninth Circuit Court of Appeals, sought to add her partner Amy Cunninghis to her health insurance plan. As in the other DoMA cases, the Justice Department has switched sides to support Golinski's arguments, and lawyers for House Republicans are defending the constitutionality of DoMA.

The week ahead: December 5, 2011

Monday, December 5 - Trial begins in Orozco v. Attorney General of Belize, the challenge to the law criminalizing homosexual conduct in Belize.

Tuesday, December 6 - UPDATE: The Fourth Circuit announced that oral argument would be delayed in this case; no new date was set. Oral argument before the Fourth Circuit in Greater Baltimore Center for Pregnancy Concerns v. Mayor and City Council of Baltimore, in which the District Court ruled that a city ordinance violated the First Amendment rights of anti-abortion counseling centers by requiring them to post a sign in the reception area informing patients that they did not refer for abortion services. 768 F. Supp.2d 804 (D.Md. 2011). 

Also December 6 - Deadline for proposals for the Law and Society Conference to be held June 5-8, 2012 in Honolulu.

Thursday, December 8 -Two oral arguments before Ninth Circuit, first on whether the videotapes of the trial in the Perry case, challenging the constitutionality of Prop 8, should be released; and immediately following, on whether Judge Vaughn Walker should have recused himself from trying the case because he has a same-sex partner and therefore would have the option to marry if Prop 8 were found to be unconstitutional.

Also December 8 - Oral argument in Choice Inc. of Texas v. Greenstein. Despite the Texas name of the plaintiff, the case involves a Louisiana law allowing state officials to cite abortion clinics for regulatory violations and then immediately close them, without granting the opportunity to correct any deficiencies, unlike the process for other medical facilities. The District Court dismissed the complaint on grounds of ripeness. 781 F. Supp.2d 313 (M.D.La. 2011). Judges James Dennis, Edith Brown Clement and Priscilla Owen comprise the  panel who will hear the argument.

Also December 8 - Deadline for paper proposals for Feminist Legal Theory Workshop on Privatization and Social Responsibility to be held February 17-18, 2012 at Emory Law School.

Ninth Circuit clears the deck for the important Prop 8 issues

The Ninth Circuit has announced its game plan for tackling the cluster of Prop 8-related cases now pending before it. Bottom line, the court will not delay issuing its opinion on standing and on the merits question of whether Prop 8 is unconstitutional in order to hear additional arguments. Without knowing how long it will take to draft the opinion (especially since it is possible that the panel has not even deliberated yet on the merits question), it is impossible to predict how quickly an opinion might be issued. But it looks like the court will not let itself get sidetracked by the ancillary questions of videotapes and recusal. 

In the interest of (my own) time, I'm going to quote Lyle Denniston's post from SCOTUSblog:

...[Today, December 2,] the panel is receiv[ing] new briefs — from each side simultaneously — that will bear on question [of whether the proponents of Prop 8 have standing to appeal the District Court ruling that it is unconstitutional.]...Once those new briefs are in, the panel seemed to be indicating by its announcement, it will then move on to decide the two constitutional questions.  The announcement stressed that “there will be no further argument” in that proceeding.   It also emphasized that, up to now, the three-judge panel has not made a final decision on either question...

Besides the constitutional case, the same panel has before it two other cases brought to it by the Proposition 8 backers.  One (docket 11-17255) is an attempt by the ballot measure to overturn a different federal judge’s ruling allowing the public release — and thus public broadcast — of the videotape made of the entire trial before Judge Walker.  That tape has remained sealed since the trial was over, but the same-sex couples who won the case before Judge Walker, along with a coalition of media organizations, are seeking public release of the recording.  Its release is on hold in the meantime.  The Circuit Court said Wednesday that it will hold a hearing on that case at 2:30 p.m. (Pacific time) on Dec. 8.

The other case (docket 11-16577) is a plea by the Proposition 8 backers to throw out entirely Judge Walker’s ruling against Proposition 8, on the argument that he should have been disqualified from conducting the Proposition 8 trial, because he is gay, is in a long-term personal relationship with another man, and was thus in a position to benefit from any decision striking down gay marriages in the state.   That plea has been rejected by the judge who succeeded Walker on the case, Chief District Judge James Ware of San Francisco.   (Judge Ware is also the one who has ordered release of the videotape of the Walker trial.)    The Court said Wednesday it will hold a hearing on that case at 3:30 p.m.  (Pacific time) on Dec. 8.

Both hearings, according to the announcement, will be videotaped “for later broadcast on C-SPAN and the NBC-7 television station in San Diego.”  The Court will also allow still photographs of its hearings.   A  live audio and video feed of the two hearings will be sent to other rooms in the San Francisco federal courthouse, and to viewing sites in federal courthouses in Pasadena, in Portland, Ore., and in Seattle, Wash. [that are also located within the geographic boundaries of the Ninth Circuit].

11th Circuit panel signals support of trans employee

Sounds like things went extremely well for the Lambda Legal argument in the Glenn v. Brumby case before the 11th Circuit this morning, with support from all three members of the panel. It's dangerous to assume too much from an oral argument, and the decision below which the Court of Appeals is being asked to affirm was not without its shortcomings. But if this prediction holds and the 11th Circuit rules in Glenn's favor, it will be even more clear than it is already that Title VII prohibits discrimination based on gender identity, because it is a form of sex discrimination. Most circuits have already adopted that position. Congress and the Executive Branch should take steps to solidify this interpretation, and that should become much easier politically with the precedents created by these decisions. (from AJC:)

A panel of three federal appeals court judges on Thursday appeared strongly inclined to grant a legal victory to Vandy Beth Glenn, a transgender woman who was fired as a legislative editor at the General Assembly after she disclosed she was going to make the transition from man to woman.

During oral arguments, Judges Rosemary Barkett and Bill Pryor said U.S. Supreme Court precedents appear to support a lower-court judge's finding that Glenn was the subject of sex discrimination.

"We have direct evidence of intentional discrimination, it seems to me," Pryor told Richard Sheinis, a lawyer representing the state of Georgia. "You can't discriminate against someone because they don't behave the way you expect them to behave because of their sex," Pryor added.

Barkett repeatedly told Sheinis she couldn't understand the basis of the state's arguments.

Last year, U.S. District Judge Richard Story ruled that Glenn was discriminated against because of her sex, and the state is appealing that decision.

Glenn was hired as a legislative editor in October 2005 at a time when she was presenting herself as a man with the name of Glenn Morrison. Two years later, when she told Sewell Brumby, head of the Office of Legislative Counsel, that she intended to transition into being a woman, Brumby fired Glenn.

During the arguments, Senior Judge Phyllis Kravitch noted that no members of the legislative counsel staff had complained about Glenn's transition from man to woman. "No one complained but him," Barkett added, referring to Brumby.

In his ruling, Story said Glenn could get her job back. But that decision was stayed, pending the outcome of the appeal before the 11th U.S. Circuit Court of Appeals in Atlanta. Standing outside the courthouse after the hearing, Glenn said she was eager for the court to issue its decision. "I felt it went very well," said Glenn, standing by her lawyer, Gregory Nevins of the Lambda Legal Defense and Educational Fund. "It took a long time to get here."

Keeton counseling case argued in 11th Circuit

From the Atlanta Journal Constitution:

An attorney for a graduate school counseling student told federal judges in Atlanta on Tuesday that the student's First Amendment rights were violated when professors at a Georgia university sought to punish her for her biblical views on gay rights.

Augusta State University put Jennifer Keeton on academic probation for saying it would be hard for her to work with gay clients, and threatened to expel her unless she attended events like Augusta's gay pride parade, Keeton's attorney Jeff Shafer told the 11th U.S. Circuit Court of Appeals. "She was told, 'You don't have to believe it. You just have to say you do,'" Shafer said.

Augusta State University countered that the counseling program would risk its accreditation if it didn't hold Keeton to a code of ethics. The school has a duty to require students to counsel all segments of the community, including those who are gay or transgender, it said in court papers.

Keeton told other students that she was interested in practicing conversion therapy — where a therapist tries to "cure" a person from being homosexual — after graduation, said Cristina Correia with the state Attorney General's office. Correia said Keeton also told her professors she would tell any clients who said they were gay that homosexuality is morally wrong.

University faculty were concerned that Keeton was scheduled to practice counseling in middle and high schools as part of her degree program and could possibly harm young students with her views, Correia said. "The university has a responsibility when putting students in a practicum and graduating them," Correia said. "When you have that kind of evidence, the faculty could not, under their ethical standards, put that student in a clinical setting without further remediation."

Keeton, who said she's a devout Christian "committed to the truth of the Bible," enrolled in the school's counselor education program in fall 2009 and soon began discussing her views that sexual behavior is a personal choice and that gender identity isn't subject to change.

Faculty members were alarmed after she wrote in a term paper that it would be hard with her to work with gay clients. The school told her that her language was unethical according to guidelines from the American Counseling Association, and she was put on probation and warned she could be expelled.

She was asked in May 2010 to agree to a remediation plan that would require her to attend sensitivity training, read counseling journals and mix with gays at events like the city's gay pride parade. Keeton refused to comply with the plan, which she said in court papers would require her to "tell clients wanting to hear it that homosexual sex is moral."

She filed a federal lawsuit claiming the school wanted to expel her because she "holds Christian ethical convictions" on human sexuality and gender identity. Attorneys for both sides declined comment after the hearing because the case is under a gag order by the court.

 

LGBT cases before 11th Circuit draw majority liberal panel of judges

Judges Rosemary Barkett, Phyllis Kravitch, and William Pryor will decide two lgbt-related cases to be argued this week before the 11th Circuit Court of Appeals. Barkett and Kravitch (who is on senior status) are two of the liberal members of what is usually a conservative circuit; they were appointed by Presidents Clinton and Carter, respectively. Pryor, considered to be a strong conservative, was appointed by President George W. Bush.

On Thursday, they will hear arguments by the Georgia legislature that its firing of a transgender employee did not constitute sex discrimination. This will follow tomorrow's appeal by a self-proclaimed Christian who was ordered by Augusta State University either to provide non-judgmental counseling to gay clients or participate in a remediation plan. Lambda Legal attorney Greg Nevins (photo) will seek affirmance of the lower court decision in Glenn v. Brumby, the trans case, which granted judgment for the plaintiff. In the other case, the former ASU graduate student is being represented by the Alliance Defense Fund, which makes regular appearances on the opposite side of lgbt rights advocates.

The panel before whom they will argue presents a study in contrasts.

Judge Barkett is well known for her spirited arguments in dissent in both the panel decision and the denial of an en banc rehearing in Lofton v. Department of Children's Services, a challenge to the Florida law that prohibited adoption by lesbians and gay men. Barkett argued that the anti-gay adoption rule was unconstitutional if one followed the Supreme Court's decisions in Lawrence v. Texas and Romer v. Evans. (Florida has since abandoned its defense of the law.)

Judge Kravitch was a trailblazer for women in the judiciary. Only the third woman ever appointed to a U.S. Court of Appeals, she received the ABA's Margaret Brent Woman Lawyer of Achievement Award and an award for service to the profession from her alma mater, the University of Pennsylvania Law School. She began her career by joining her father's practice in Savannah, when no major firms would hire a woman. She later litigated important local civil rights cases.

Judge Pryor became Attorney General of Alabama in 1997 and served until he joined the 11th Circuit. Although nominated in 2003, Senate Democrats filibustered his appointment until President George W. Bush gave him a recess appointment in 2004. The Senate confirmed him the following year as part of a compromise on judicial appointments reached by the "Gang of 14." During his confirmation hearing, he reaffirmed his belief that Roe v. Wade was "the worst abomination of constitutional law in our history." 

Although these three judges will announce the first decision in the two cases, it might not be the last. A decision from the panel in any U.S. Court of Appeals case may be rescinded if the full Circuit grants a rehearing en banc.  The case is then re-argued before all the judges who are members of that Circuit.

The week ahead: November 28, 2011

[ADDED] Tuesday, November 29 - Oral argument in the 11th Circuit in Keeton v. Anderson-Wiley, in which Jennifer Keeton, a graduate student in counseling at Augusta (GA) State University, is challenging the ruling of a District Court that ASU was justified in requiring her to complete a remediation plan after she refused to counsel gay clients.

Thursday, December 1 - Oral argument in the 11th Circuit in Glenn v. Brumby, in which the Georgia state legislature has appealed a ruling that it discriminated against Vandy Beth Glenn on the basis of sex. Glenn, an MTF transperson, was fired from her job as an editor and proofreader. 

Also December 1 - The final set of briefs is due from the defendants in Gill v. OPM, one of the challenges to the constitutionality of Section 3 of DoMA. This closes the briefing; the parties await scheduling of oral argument. 

Friday, December 2 - Briefs in Perry v. Brown are due to the Ninth Circuit on the issue of how the court should respond to the advisory decision from the California Supreme Court that the Prop 8 proponents should have standing to defend it in the litigation.

Arizona federal judge considers preliminary injunction against law targeting abortion service providers

The parties in Arizona Coalition Against Domestic Violence v. Greene are waiting to see if U.S. District Court Roslyn Silver will enjoin a statute scheduled to take effect January 1 that would block charitable donations to organizations that provide or refer for abortions. Judge Silver heard arguments last week. (from the Arizona Republic:)

House Bill 2384 excludes from the state's Working Poor Tax Credit Program any organizations that "provide, pay for, promote, provide coverage of or provide referrals for abortions" or that financially support any organizations that do those things.

The Working Poor Tax Credit Program offers Arizona taxpayers a dollar-for-dollar tax credit to donate to organizations that serve low-income residents. Individuals can claim up to $200, and a couple filing jointly can claim up to $400. Arizona is the first state to address abortion through tax code in this way...

The Arizona Coalition Against Domestic Violence, with the help of the American Civil Liberties Union of Arizona, filed a lawsuit alleging that the law violates freedom of speech and could be dangerous to abused women. ACLU attorney Alexa Kolbi-Molinas argued [that] "This law excludes members from participating in the tax-credit program based solely on the opinion they express. Viewpoint discrimination should not be permitted."

She said if the law goes into effect, domestic-violence victims will be impacted..."Women in abusive relationships often experience a range of sexually violent behaviors that can lead to unintended pregnancy," Kolbi-Molinas said. "Maybe they don't want to be forced to bear an abuser's child ... maybe they don't want a child to be subject to child abuse ... there are many reasons."

Arizona Solicitor General Dave Cole defended the law. "The choice the Legislature made here is both reasonable and within the spirit of its authority," Cole said. He said the law does not restrict speech, but only a group's activities -- such as promoting or referring.

While Silver did not issue a ruling from the bench, she did indicate that the law may be a restriction of viewpoint speech.

Openly gay nominee for Court of Appeals blocked by secret Senate hold

One aspect of American government that is truly medieval is the continuing practice of the Senate that allows any one member to block a Presidential nominee and to do so secretly.  That's what happened to Ed DuMont, leading him last week to withdraw his name from consideration for becoming the first openly gay appellate judge in the federal court system, noting that "one or more" Republicans opposed his confirmation. 

More details from Keen News Service:

The White House sent out notice Thursday night that it was withdrawing the nomination of openly gay attorney Edward DuMont to serve on the U.S. Circuit Court of Appeals for the Federal Circuit. Republicans on the Senate Judiciary Committee blocked DuMont’s nomination from the start, when President Obama nominated him in April 2010.

In DuMont’s place, President Obama has nominated an attorney with strong Republican ties. In a separate announcement Thursday evening, the White House announced that President Obama is nominating attorney Richard Taranto, a former law clerk for failed Supreme Court nominee and right-wing conservative Robert Bork, as well as Supreme Court Justice Sandra Day O’Connor. Taranto also served three years as an Assistant to the Solicitor General in the Office of the Solicitor General of the United States Department of Justice...

DuMont was the first openly gay person to be nominated to a federal appeals court. In his responses to the Senate Judiciary Committee questionnaire, DuMont ...was very forthcoming about his involvement in and support for gay legal groups. He indicated that he is a member of the Gay, Lesbian, Bisexual and Transgender Attorneys of Washington (GAYLAW) and a former member of the National LGBT Bar Association. He worked for the Department of Justice under President Clinton and was a member of DOJ Pride, the GLBT employee organization, serving as its vice president between 1994 and 1996. He is also a member of Yale GALA.

DuMont’s responses to the Committee’s questionnaire also indicated that he signed onto a letter of support for one of President George W. Bush’s controversial conservative appeals court nominee, Miguel Estrada, and clerked for an appointee of President Reagan, 7th Circuit Court Judge Richard Posner.

DuMont earned the highest rating from the American Bar Association—unanimously well qualified...

Court of Appeals will address Indiana's effort to defund Planned Parenthood

In oral arguments before the Seventh Circuit last Thursday, the Solicitor General of Indiana suggested that Planned Parenthood split itself into two entities to avoid the impact of a law cutting off Medicaid funds to the group because it provides abortions. Planned Parenthood accused the state of violating the federal Medicaid statute by singling it out based on the nature of services it offers with private funding. The Indiana law was enjoined last June, and the state appealed.

From Bloomberg:

Solicitor General Thomas Fisher said during oral arguments before the 7th Circuit Court of Appeals in Chicago that Indiana's new law is aimed at keeping taxpayer dollars "from indirectly subsidizing abortions." He told the appeals court that Planned Parenthood of Indiana could ensure that wouldn't happen by separating its operations into two entities. "Only by separating the two can we be sure that there's no cross-subsidy," Fisher said.

Planned Parenthood's attorney, Ken Falk of the American Civil Liberties Union, told the appeals court during the 45-minute hearing that Indiana's own Medicaid agency warned state lawmakers while they were weighing the legislation that it would violate Medicaid recipients' "freedom of choice" by targeting the abortion provider.

"The state Medicaid agency said, and I'm quoting, `Federal law permits states to define a qualified provider but requires that this definition is related to a provider's ability to perform a service -- and not what services are provided,'" Falk said...

The law, which was signed into law in May by Republican Gov. Mitch Daniels, made Indiana the first state to deny the organization Medicaid funds for general health services, including cancer screenings.

Planned Parenthood said the law would affect about 9,300 women who rely on Planned Parenthood for their health care. State officials have said that scores of health centers across the state would readily accept Medicaid patients and offer reproductive and sexual health services...

Lawsuit seeking full separation pay for DADT discharges marches forward

Judge Christine Odell Cook Miller of the Court of Federal Claims denied the government's motion to dismiss a case brought by the ACLU on behalf of service members who received only partial separation pay because they were discharged on the ground that they were gay. The bulk of the decision in Collins v. United States addresses technical statutory questions pertaining to whether the Claims Court properly had jurisdiction of the case. Judge Miller ordered the parties to submit a proposed schedule for discovery and briefing of the motion to certify a class.

The week ahead: October 17, 2011

 Thursday, October 20 -  Oral argument before the Seventh Circuit Court of Appeals in Planned Parenthood of Indiana v. Commissioner of the State Department of Health. The state is appealing a preliminary injunction issued against enforcement of a new law to defund Planned Parenthood that would end its ability to accept Medicaid (low income) patients.

Also October 20 - New York City - The Association of the Bar of the City of New York will present a CLE program on "Defense of Marriage Act Litigation: Strategy, Tactics and Theory" from 6 to 8 pm at the City Bar building on 44th Street.

Friday, October 21 - Oral argument before Judge White of the Northern District of California in Golinski v OPM. This is another one of those cases in which counsel for House Republicans is defending the constitutionality of DoMA, since the Justice Department has declined to do so. UPDATE - This hearing has been rescheduled for December 16.

Also October 21 - Los Angeles - Loyola Law School is hosting a day long conference on LGBT Identity and the Law; open to the public.

Prop 8 proponents seek continuation of stay barring release of trial videotapes

With 85 pages of argument and supporting exhibits, the brief filed by Prop 8 proponents in support of blocking public release of the videotapes of the trial seems designed to remind the Ninth Circuit of two things: there was a lot of press coverage of "widespread economic reprisals" against Prop 8 supporters after its passage, and, at the outset of the trial, the Supreme Court prohibited Judge Walker from allowing the trial to be broadcast on public television or to federal courthouses around the country. Hollingsworth v. Perry, 130 S.Ct. 705 (2010)

What is missing is any evidentiary support for the claim that the witnesses for the proponents who testified during trial were harassed or would be harassed if the videotapes of their testimony were to be released now. It was the fear of intimidation of witnesses that was invoked to get the first order preventing any release of the tapes.

How will this turn out?  Hard to say. The Supreme Court, where the matter will go eventually, is disinclined to allow cameras in the courtroom (or presumably the results of video recording to be released later). The Court's reasoning on the generic question has always been that attorneys will play to the unseen audience, thus lowering the quality of argument, and that the inevitable production of short clips will distort the impression of what happened in court.

The Prop 8 dispute focuses on more specific legal questions (eg, whether there is a common law right of public access to judicial proceedings and if so, what is its scope). In general, however, my hunch is that the Court will lift the stay on releasing the tapes only if the Justices conclude that precedent gives them no other option, an outcome that I doubt will occur.

My own view - I tend to favor public access to pretty much everything, but I also think that this debate is fundamentally a sideshow in the Prop 8 litigation saga.

Congratulations Judge Nathan

Congratulations to Alison Nathan, an openly lesbian former Associate White House Counsel, whom right-wingers almost scared the Senate into failing to confirm. The bad guys failed, and the confirmation succeeded by a 48 to 44 vote. Ali will join the Southern District of New York, where she will sit alongside (figuratively) openly gay judges Deborah Batts and Paul Oetken. Nathan and Batts are the only two openly lesbian federal district court judges; Oetken is the one and only openly gay male federal district court judge.

The most heavily invoked reason for conservative opposition during the debate over Nathan was not her sexual orientation or even the code word fear of "judicial activism." Instead, bizarrely enough, Sen. Jeffrey Sessions spoke for 18 minutes mostly about her openness to considering law from outside the U.S. in her rulings.

Conservatives seized on a book chapter that Nathan wrote about international human rights issues:  “Arresting Juxtapositions: The Story of Roper v. Simmons” in Human Rights Advocacy Stories. Conservative legal commentator Ed Whelan condemned the chapter's endorsement of the “‘internalization’ of international human rights law arguments” into Supreme Court decisionmaking on constitutional issues. 

Nathan's response to questions from members of the Senate Judiciary Committee illustrates her wild, left fringe thinking: Nathan said that foreign law would have 

“no relevance to my interpretation of the U.S. Constitution.” [But she acknowledged that there is] “an important debate” on “what role the Supreme Court’s reference to foreign law is playing in the Court’s decisions….

If confirmed, I would follow binding Supreme Court precedent in this and all areas.

Prior to her White House work, Nathan clerked for Justice Stevens, worked at Wilmer Cutler, and taught for brief stints at Fordham and NYU Law Schools. Her fellow clerks from the 2001-2002 term, including individuals who had worked for all nine Justices, submitted a letter to the Senate Judiciary Committee endorsing her nomination.

Federal court case in Cleveland shows weakness of local anti-discrimination laws

Late last month, U. S. District Judge James Gwin denied summary judgment to the defendants in Hutchinson v. Cuyahoga County Board of County Commissioners (2011 WL 4452394). Shari Hutchinson alleged that she was denied several jobs in the county agency responsible for child support enforcement because she is lesbian. Hutchinson was able to produce indirect evidence of discrimination from statements by other employees to the effect that, while she consistently was ranked as a leading contender for the jobs, the Commissioners themselves repeatedly singled her out to block promotions despite excellent performance reviews.

Cuyahoga County is bascally the greater Cleveland area. Its voting patterns are heavily Democratic, so no surprise that there were official policies against discrimination based on sexual orientation when the alleged discrimination against Hutchinson occurred. According to the complaint, Cleveland has an ordinance barring such discrimination in employment and the county has the same provision in its employment policies. Unfortunately, these laws appear to have provided no protection for Hutchinson. 

This decision is not of great legal import because it is unlikely to establish new law. Under the Fourteenth Amendment's Equal Protection Clause, public employers cannot treat lgb employees differently based on their sexual orientation without demonstrating a rational basis for doing so, and dislike of or discomfort with gay people does not satisfy even the rational basis test in ordinary public employment cases.

But the Hutchinson case does illustrate how employers that have adopted anti-discrimination policies or that are subject to local civil rights ordinances can nonetheless engage in informal, unstated, but repeated patterns of hostile conduct toward lgb workers. No form of law is a panacea, of course, but a federal law with the same authority as Title VII would be far more likely to be effective.  

It's called ENDA.