Thursday, August 21, 2014
In his 33 page opinion today in Brenner v. Scott, Judge Robert Hinkle of the Northern District of Florida found that Florida's same-sex marriage bans in the constitution as Article I §27 and Florida Statutes § 741.04(1) violated the Fourteenth Amendment.
Judge Hinkle first determined that the "right asserted by the plaintiffs is a fundamental right as that term is used in due-process and equal-protection jurisprudence," noting that almost every court that has addressed the issue since the Supreme Court’s 2013 decision in Windsor has said the answer is yes, and concluded that that "view is correct." Given that there is a fundamental right, he continued:
That leaves for analysis the second step, the application of strict scrutiny. A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest. A variety of justifications for banning same- sex marriages have been proffered by these defendants and in the many other cases that have plowed this ground since Windsor. The proffered justifications have all been uniformly found insufficient. Indeed, the states’ asserted interests would fail even intermediate scrutiny, and many courts have said they would fail rational- basis review as well. On these issues the circuit decisions in Bostic, Bishop, and Kitchen are particularly persuasive. All that has been said there is not repeated here.
Judge Hinkle did take the opportunity, however, to specifically discuss the procreation argument, finding that "Florida has never conditioned marriage on the desire or capacity to procreate."
Like other judges, Judge Hinkle used Justice Scalia's dissenting language from Lawrence v. Texas to note that moral disapproval in the marriage context is the same as moral disapproval in the sodomy context.
Judge Hinkle's opinion then analyzed the requirements for a preliminary injunction, finding them satisfied. But he also held that a stay was warranted; it would have been difficult to rule otherwise in light of the previous stays, including the one just yesterday by the United States Supreme Court.
August 21, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)
Thursday, August 7, 2014
Call for Presentations and Papers
Association of American Law Schools
AALS Workshop on Next Generation Issues on
Sex, Gender and the Law
June 24-26, 2015
Doubletree by Hilton at the Entrance to Universal Studios
Here's the CFP:
After more than forty years of formal sex equality under the law, this 2015 workshop will ask legal academics to look ahead to the future and identify, name, and analyze the next generation of legal issues, challenges, and questions that advocates for substantive gender equality must be prepared to consider. To this end, we seek paper and presentation proposals that not only pinpoint and examine future law-related concerns about gender equality but that also provide innovative new approaches to achieving equality for women and those who challenge gender norms in our society, with a particular attention to employment, violence against women, reproductive rights, women's poverty, and women in legal education.
Our hope is to build on the insights of the participants in the 2011 AALS Workshop on Women Rethinking Equality by exploring new and forward-looking ideas for scholarship, law reform, and advocacy that can bring about women's equality. An additional expectation is that each session will address the ways in which characteristics other than gender, including race, sexual orientation, immigration status, socioeconomic class, and disability, impact women's lives. We also anticipate that each session will analyze the institutional strengths and weaknesses of courts, legislatures, and administrative bodies for bringing about change and offer suggestions for legal reforms that can better meet women's needs. Our final goal is to provide a rich and supportive atmosphere to foster mentoring and networking among teachers and scholars who are interested in women's equality and the law.
The format of the workshop will involve plenary sessions, concurrent sessions drawn from this Call for Presentations and Papers, and a closing panel. The closing panel, also drawn from this Call, will consist of a brainstorming session to consider projects and proposals for proactive measures to bring about gender equality.
The concurrent sessions will feature presentations related to gender equality issues, with preference given to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women's poverty, and women in legal education. We will organize the presentations into panels based on the subject matter of the proposals. Each presentation will last for 15 minutes, followed by questions from the moderator and audience.
Interested faculty should submit a brief written description (no more than 1000 words) of the proposed presentation, along with his or her resume. Please e-mail these materials to email@example.com by September 15, 2014. We will notify selected speakers by November 1, 2014.
The final plenary session of the conference will consist of 10-12 five-minute presentations of ideas for future projects that will advance gender equality in the law. Each selected participant will be limited to five minutes to present his or her idea or project. The presentations will be followed by audience feedback and comments. Although we will grant preference to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women's poverty, and women in legal education for the concurrent sessions, we welcome proposals for this brainstorming session on any topic related to gender equality.
Interested faculty should submit a written description of the proposed presentation (no more than 1000 words), along with his or her resume. Please e-mail these materials to firstname.lastname@example.org by September 15, 2014. We will notify selected speakers by November 1, 2014.
Tuesday, July 1, 2014
In his opinion today in Love v. Beshear, Judge John Heyburn held that the Kentucky provisions prohibiting same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment, but stayed the issuance of an injunction pending a resolution by the Sixth Circuit.
Recall that in February, Judge Heyburn ruled in Bourke v. Beshear that Kentucky's statutory and state constitutional provisions defining marriage as limited to one man and one woman violate the Fourteenth Amendment's Equal Protection Clause when applied to same-sex spouses married in another state.
Today's opinion considers those same constitutional and statutory provisions - - - KY. CONST. § 233A; KY. REV. STAT. ANN. §§ 402.005, .020(1)(d) (West 2014) - - - but in the context of a right to marry under Kentucky law. And, not surprisingly, today's opinion reaches similar conclusions to the earlier case of Bourke v. Beshear.
Judge Heyburn quickly concludes that Baker v. Nelson, 409 U.S. 810 (1972), in which the Supreme Court dismissed “for want of a substantial federal question” a challenge to a Minnesota Supreme Court ruling concluding that a same-sex couple did not have the right to marry under the federal Due Process or Equal Protection Clauses, is not precedential. It "is difficult to take seriously the argument that Baker bars Plaintiffs’ challenge," given that the rule for the precedential value of a summary disposition includes the exception "unless doctrinal developments indicate that the Court would rule differently now." As Judge Heyburn states: "Since 1972, a virtual tidal wave of pertinent doctrinal developments has swept across the constitutional landscape."
In considering these doctrinal developments and the applicable standard of scrutiny under Equal Protection doctrine, Judge Heyburn first considers the right at stake. He analyzes whether the right to marry is a fundamental right, but concludes that this precise question is one that "neither the Supreme Court nor the Sixth Circuit has answered." Heyburn declines to engage in "overreaching" on this issue, because the fundamental rights analysis is unnecessary given the analysis regarding sexual orientation classifications.
Judge Heyburn's conclusion on the level of scrutiny to be applied is intermediate scrutiny. Note that this is a departure from his earlier decision in Bourke to apply rational basis. Here, his conclusion - - - admittedly not supported by specific Supreme Court or Sixth Circuit precedent - - is that "homosexual persons constitute a quasi-suspect class based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi- suspect.” He reaches this conclusion by applying four factors: historical discrimination; the ability to contribute to society; immutable defining characteristics; and political powerlessness. Thus, the opinion would ordinarily then apply the intermediate scrutiny standard as articulated by the court: "“substantially related to an important governmental objective."
But Judge Heyburn takes a different path, similar to the one he took in Bourke v. Beshear:
Ultimately, Kentucky’s laws banning same-sex marriage cannot withstand constitutional review regardless of the standard. The Court will demonstrate this by analyzing Plaintiffs’ challenge under rational basis review.
In discussing Kentucky's profferred interests, Judge Heyburn writes that the state's "arguments are not those of serious people." Moreover, he concludes that the means chosen are not rationally related:
Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have.
Judge Heyburn's last section of the opinion addresses Kentuckians, but in a much more restrained manner than his earlier opinion in Bourke. In Love v. Beshear, Judge Heyburn notes
Since this Court’s Bourke opinion [in February 2014], the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry.
Heyburn cites the Tenth Circuit's opinion in Kitchen v. Herbert, as well as the district court opinions in Baskin v. Bogan (Indiana); Wolf v. Walker (Wisconsin); Whitewood v. Wolf (Pennsylvania); Geiger v. Kitzhaber (Oregon); Latta v. Otter (Idaho); De Leon v. Perry (Texas); DeBoer v. Snyder (Michigan); and Bostic v. Rainey (Virgina).
He adds that with "this opinion, this Court joins their company."
It remains to be seen, however, whether the Sixth Circuit will also join this increasingly large assembly.
July 1, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)
Monday, June 30, 2014
Divided Supreme Court Recognizes Right of Closely Held Corporations Hobby Lobby and Conestoga Wood Specialties under RFRA to Avoid "Contraceptive Mandate"
On this last day of the 2013-2014 Term, the Court delivered its long-awaited opinion in "Hobby Lobby" - - now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell - - - on the question of whether corporations (or their owner/shareholders) be able to interpose a religious objection under RFRA (the Religious Freedom Restoration Act) to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? Here's our primer on the issues for more detail. Recall that the Tenth Circuit en banc in Hobby Lobby ruled for the corporation, while the Third Circuit panel in Conestoga Woods ruled for the government, and several other courts entered the fray with disparate results.
The oral arguments in March were contentious and so too are the opinions in this 5-4 decision.
The majority opinion, authored by Justice Alito, holds that closely-held corporations such as Hobby Lobby and Conestoga Wood Specialties are "persons" within the meaning of RFRA and thus are entitled to raise a claim. The Court looks at Congressional intent in RFRA, its own precedent allowing RFRA claims by nonprofit corporations, and policy issues about the difficulty of determining the "beliefs" of a corporation, and held that closely held corporation that make a profit are "persons" within RFRA.
The Court then held that the challenged HHS regulations ("the contraceptive mandate") did substantially burden the business owners religious beliefs because they believe if they comply with the mandate they will be "facilitating abortions" and if they do not comply, they will face substantial fines. The Court rejected the argument that the link between the insurance coverage paid by an employer and an employee being reimbursed by the insurance company for obtaining contraception was too attenuated.
Given this finding, under RFRA, the Court applies "strict scrutiny," but interestingly assumes that the government satisfies the "compelling government interest" prong. However, the Court finds that the HHS mandate is not the "least restrictive means" to accomplish its goal: the system already in place for accommodating the religious beliefs of nonprofit entities granted exemptions under the regulations and statute.
Justice Kennedy writes a brief concurring opinion. As we discussed, Kennedy was focused on as the "Justice to watch" and he stresses that the existence of government accommodation already in existence.
The "principal dissent" (as the Court's opinion often characterizes it) is by Justice Ginsburg, joined by Sotomayor in full, and by Breyer and Kagan (except to a section regarding the construction of RFRA as applying to corporate persons). The dissent begins by labeling the majority's decision as one of "startling breadth" that allows corporations to "opt out" of "any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs." Justice Ginsburg argues there is a slippery slope in the majority's least restrictive means analysis, despite the majority's attempt to cabin it:
And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths.
Ultimately, the Court hedges on its proposal to align for- profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Counsel for Hobby Lobby was similarly noncommittal.
[citations and footnotes omitted].
Whether or not the Court's opinion is narrow or broad might depend more on one's political outlook and one's view of the Court as "chipping away" or as "careful crafting."
However, recall that RFRA - - - the Religious Freedom Restoration Act - - - is a statute passed by Congress that changed the standard of review the Court had announced be accorded religious claims; many now believe that Congress will be called upon to change RFRA, including perhaps the definition of "person" to exclude for-profit corporations, or to repeal RFRA in its entirety.
June 30, 2014 in Abortion, Congressional Authority, Courts and Judging, Executive Authority, Family, First Amendment, Gender, Medical Decisions, Opinion Analysis, Religion, Reproductive Rights, Sexuality, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)
Wednesday, June 25, 2014
In his decision today in Baskin v. Bogan, United States District Judge Richard Young permanently enjoined Indiana officials from enforcing its requirement that marriage requires a female and a male, and its ban on the recognition of same sex marriages legally valid in other states, Indiana Code Section 31-11-1-1 (subsections a & b).
After resolving problems of the proper defendant and quickly disposing of the argument that Baker v. Nelson's summary finding by the Supreme Court in 1972 has meaningful precedential value, Judge Young's opinion proceeds along three separate tracks.
First, Judge Young finds that marriage is a fundamental right and therefore the statutory ban on same-sex marriage should be subject to strict scrutiny. Judge Young concluded that the scope of the fundamental right is not limited, quoting Judge Black's opinion in Henry v. Himes that the United States Supreme Court has not limited this fundamental right in its pertinent cases; the Court "consistently describes a general ‘fundamental right to marry’ rather than ‘the right to interracial marriage,’ ‘the right to inmate marriage,’ or ‘the right of people owing child support to marry.’" Applying strict scrutiny, Judge Young articulates the state's proffered interest "in conferring the special benefit of civil marriage to only one man and one woman is justified by its interest in encouraging the couple to stay together for the sake of any unintended children that their sexual union may create," but declines to asess it and assumes that it is "sufficiently important interest." However, Judge Young finds that the state has not demonstrated that the statute is “closely tailored” to that interest, but instead is "both over- and under-inclusive."
Second, Judge Young analyzes the statute on the basis of equal protection, rejecting the argument that the statute makes a gender classification and concluding that it makes a sexual orientation classification. While Judge Young contends that while it might be time to "reconsider" whether sexual orientation classifications should be analyzed under rational basis scrutiny, the "court will leave that decision to the Seventh Circuit, where this case will surely be headed." Applying rational basis scrutiny, however, Judge Young concludes that there is no rational relationship to the interests proffered by the state.
Third, Judge Young independently analyzes subsection b of the statute, applying to recognition. The judge notes that the "parties agree that out-of-state, same-sex marriages are treated differently than out-of-state, opposite-sex marriages," and thus "the question is whether that difference violates the Equal Protection Clause." Again, applying rational basis scrutiny, Judge Young concludes:
Defendants proffer that the state refuses to recognize same-sex marriages because it conflicts with the State’s philosophy of marriage – that is that marriage is to ameliorate the consequences of unintended children. Recognizing the valid same-sex marriages performed in other states, however, has no link whatsoever to whether opposite-sex couples have children or stay together for those children. Thus, there is no rational basis to refuse recognition and void out-of-state, same-sex marriages.
Judge Young's opinion is economical (at 36 pages), well-structured, and well-supported with relevant citations. Judge Young did not issue a stay of his opinion. One assumes that such a decision may be sought from the Seventh Circuit.
June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Full Faith and Credit Clause, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
In a divided decision, the Tenth Circuit opinion in Kitchen v. Herbert held that the
Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that [Utah's state constitution's] Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.
Affirming the district court's decision as well as its analysis, the Tenth Circuit panel majority, authored by Judge Carlos Lucero, and joined by Judge Jerome Holmes, applied strict scrutiny because it found that the "right to marry is a fundamental liberty."
In applying strict scrutiny, the panel majority assumed that three of the four interests advanced by the government - - - (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction” - - - were compelling. However, the court found that the means chosen - - - the prohibition of same-sex marriage - - - did not sufficiently serve these interests. Instead, each of the
justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.
The court noted that Justice Scalia, dissenting in Windsor, and numerous district judges, reached a similiar conclusion. The majority observed that the lack of narrow tailoring is "often revealed" by underinclusiveness, finding it important that Utah did not ban nonprocreative marriages.
The court's analysis of each of the three rationales is substantial and erudite, firmly rooted in precedent and well-reasoned.
As to the fourth and final interest asserted by the government - - -“accommodating religious freedom and reducing the potential for civic strife,” - - - the court reasoned that "the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights" and emphasized that its "decision relates solely to civil marriage."
Dissenting from the more than 60 page majority opinion, Judge Paul Kelly wrote more than 40 pages in disagreement (although he did agree with the majority on the standing issue, making the opinion concurring in part). Not surprisingly, he disagreed with the level of scrutiny to be applied; he concluded that there was no fundamental right at issue and would have applied rational basis scrutiny. Also not surprisingly, he would have concluded that Utah's ban on same-sex marriage satisfied this most easily satisfied level of scrutiny given the state's interests in (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.
More surprisingly, Judge Kelly found that the Supreme Court's per curiam dismissal in 1972 of Baker v. Nelson, for "want of a substantial federal question" controlling ; it "should foreclose the Plaintiffs’ claims, at least in this court," notwithstanding the Court's decision invalidating the federal Defense of Marriage Act's ban on recognition of same-sex marriage last term in Windsor.
If - - and most probably when - - - the United States Supreme Court does consider the issue of state laws banning same-sex marriage, Baker v. Nelson will be irrelevant and the Court will directly grapple with issues if fundamental constitutional rights and levels of scrutiny under the Fourteenth Amendment's due process and equal protection doctrines.
Given that the Tenth Circuit stayed its decision pending the disposition of any subsequently filed petition for certiorari it may be that both sides seek review from the United States Supreme Court,
June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)
Friday, June 13, 2014
Reversing the federal district court, the Fifth Circuit issued its opinion in United States v. Richards upholding the Animal Crush Video Protection Act of 2010 against a First Amendment challenge. At 14 pages, the opinion authored by Judge Stephen Higginson is workmanlike but ultimately fails to satisfy the concerns raised by the statute.
Recall that the 2010 Act, 18 U.S.C. § 48 (2010), is the Congressional revision of the crush porn statute the United States Supreme Court found unconstitutional in United States v. Stevens. In Stevens, the eight Justice majority found that the statute criminalizing portrayals of animal cruelty was of "alarming breadth" and could operate to criminalize popular hunting television programs. When Congress passed an amended statute, it included a provision that the portrayal "is obscene" and specific exclusions for hunting and slaughter.
Unlike the criminal defendant in Stevens (who was prosecuted for dog-fight videos), the defendants in Richards were charged with producing "crush porn" in which there is the depiction of cruelty to a small animal in an arguably sexual manner.
The First Amendment challenge to the statute contended that the "obscene" prong of the statute did not incorporate the necessary Miller v. California test for obscenity. Under Miller, this requires "sexual conduct," but Congressional history seemed debatable on this requirement. Disagreeing with the district judge, however, the Fifth Circuit panel concluded it should not look to "variable and debatable legislative history to render unconstitutional a statute that incorporates a legal term of art with distinct constitutional meaning." Thus, it held that "§48 incorporates Miller obscenity and thus by its terms proscribes only unprotected speech."
The Fifth Circuit rejected the argument that §48 proscribes only a certain type of obscenity in contravention of what some would call the "categorical approach" employed by the Court in the hate speech case of R.A.V. v. City of St. Paul. After describing this argument, the Fifth Circuit veered into the much-disparaged "secondary effects" doctrine to conclude that
even assuming, for the sake of argument, that the creators and distributors of animal crush videos, like Richards and Justice, intend to advance a distinct message, perhaps about barbarism, § 48 is justified with reference not to the content of such a message but rather to its secondary effects—wanton torture and killing that, as demonstrated by federal and state animal-cruelty laws, society has deemed worthy of criminal sanction.
The panel thus concludes that "Section 48 thus is narrow and tailored to target unprotected speech that requires the wanton torture and killing of animals." In doing so, the opinion noted that "a long history and substantial consensus, as seen in state and federal legislation, are indicative" of a compelling or substantial interest - - - and cited for this proposition New York v. Ferber. Ferber, upholding the constitutionality of criminalizing child pornography, is of course the very case Chief Justice Roberts' opinion for the Court in United States v. Stevens distinguished; the Court rejected the analogy between child porn and (animal)crush porn.
The Fifth Circuit en banc should take another look at United States v. Richards and the First Amendment contours of the "crush porn" statute without reference to "secondary effects."
Thursday, June 5, 2014
Recall that in Canada v. Bedford, the Supreme Court of Canada unanimously declared several provisions of Canada's criminal code regulating prostitution and sex work to be inconsistent with the Canadian Constitution's Charter of Rights and thus unconstitutional. The Court suspended the declaration of invalidity for one year from its December 2013 decision to allow Parliament to act.
Parliament is acting, but not in the manner that some anticipated.
Here's University of Toronto Law Professor Brenda Cossman discussing the proposed law in a video for Canada's Globe & Mail:
If Parliament does pass this legislation, it seems as if it will be swiftly challenged. And perhaps the Canada Supreme Court will have a chance to reconsider whether giving Parliament a chance to correct the defects is the best way to proceed.
Tuesday, April 15, 2014
In its opinion National Legal Services v. India, the Supreme Court of India has recognized the constitutional rights of transgender persons, including the right not to be denominated as either "male" or "female."
The opinion by K.S. Radhakrishnan begins with an invocation of the "trauma, agony and pain which the members of Transgender community undergo" but rather quickly also invokes the cultural roots and importance of the community: "TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts."
The judgment rests on an interpretation of several provisions of the Constitution of India, including Article 14 (equality before law); Article 15 (prohibition of discrimination on the basis of various grounds, including sex); Article 16 (equality of opportunity in public employment, including sex); Article 19 (including freedom of expression); and Article 21 (protection of life and personal liberty). The judgment engaged in some originalist reasoning that broadly interpreted "sex" to include sex-stereotyping:
Constitution makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders. Both gender and biological attributes constitute distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.
Given this interpretation, the Court not suprisingly ruled
We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.
The Court has some interesting discussions of dress and grooming as an aspect of gender which included references to US cases and is further discussed here.
The Court also specifically disavowed any relationship between its present judgment in National Legal Services v. India and the controversial opinion Koushal v. NAZ Foundation decided in December in which the Court - - - or as the Court states here "A Division Bench of this Court" reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional:
we express no opinion on it [Kousal] since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.
In a separate judgment, A.K. Sikiri did not mention the sodomy decision in Koushal v. Naz Foundation, but the judgment's expansive rhetoric could be read as an implicit disagreement with that decision as well as serving as a further butressing of today's judgment. The concurring opinion elaborated on the importance of TG persons and communities to India's culture. It referenced Immanuel Kant, John Rawls, Amartya Sen as providing the "jurisprudential basis for doing justice to the Vulnerable Groups which definitely include TGs." It explicitly stated the "dynamic" and "living character" of the Constitution and its interpretation. It considered judicial review in the context of democracy (including, implicitly, "sexual democracy") and decidedly opined that it is the role of the judiciary to "ensure access to justice to the marginalized section of the society," and that undoubtedly "TGs belong to the unprivileged class which is a marginalized section."
The judgment not only requires the government to recognize a "third gender" and to grant "legal recognition of their gender identity such as male, female or as third gender," but also directs the government to take positive steps in education, health provisions, and "seriously address" various problems.
April 15, 2014 in Comparative Constitutionalism, Courts and Judging, Due Process (Substantive), Equal Protection, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)
Monday, March 17, 2014
Writing for a unanimous Court in 1995, Justice Souter in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group held that the First Amendment rights of the South Boston Allied War Veterans Council (and its individual member John "Wacko" Hurley) allowed the exclusion of the Irish-American Gay, Lesbian, and Bisexual Group (GLIB) from the St. Patrick's Day Parade, despite the Massachusetts' public accommodation law prohibiting discrimination on the basis of sexual orientation.
Justice Souter famously opined that although the parade might seem not to have a particularized message that would be inconsistent with GLIB, its message was as particularized as "the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll."
Some St. Patrick's Day parades continue to exclude identified sexual minority groups, including the Boston one - - - in which Boston's mayor will reportedly not participate this year, and the New York City one - - - in which NYC's mayor will likewise reportedly not participate this year. Other St. Patrick's Day parades do not ban LGBT groups.
Friday, March 14, 2014
Uganda's controversial law, The Anti-Homosexuality Act, 2014, long-linked to United States Evangelicals, has been challenged as unconstitutional by a petition filed in the Constitutional Court of Uganda.
The vast majority of the claims of unconstitutionality focus on the rights provisions in the Uganda Constitution, including explicit rights of equality, privacy, dignity, civic participation, freedom from cruel, inhuman and degrading punishment, expression, for persons with disabilities, and fair hearing. The claims also rely on the principles in the "National Objectives and Directive Principles of State Policy" which are part of the Constitution.
Here are a few examples of the ultimate legal arguments in the petition:
THAT sections 1, 2 and 4 of the Anti-Homosexuality Act 2014, in defining and criminalising consensual same sex/gender sexual activity among adults in private, are in contravention of the right to equality before the law without any discrimination and the right to privacy guaranteed under Articles 2(1) & (2), 21(1), (2) & (4) and 27 of the Constitution of the Republic of Uganda respectively;
THAT section 2(1)(c) of the Anti-Homosexuality Act 2014, in criminalising touching by persons of the same sex, creates an offence that is overly broad and is in contravention of the principle of legality under article Articles 2(1) & (2), 28(1), (3b), (12), 42 and 44(c) of the Constitution of the Republic of Uganda;
THAT Sections 7 and 13(1) & (2) of Anti-Homosexuality Act 2014, in criminalising aiding, abetting, counselling, procuring and promotion of homosexuality, create offences that are overly broad, penalise legitimate debate, professional counsel, HIV related service provision and access to health services, in contravention of the principle of legality, the freedoms of expression, thought, assembly and association, and the right to civic participation guaranteed under principle XIV of the National Objectives and Directive Principles of State Policy, Articles 2(1) & (2), 8A, 28(1), (3b), & (12), 29(1), 36, 38(2), 42 and 44(c) of the Constitution of the Republic of Uganda 1995.
There are certainly many who hope the Uganda Constitutional Court will look to the prestigious Constitutional Court of South Africa for guidance in deciding these issues, although unlike the South African Constitution, the Uganda Constitution does not have an explicit provision protection sexual orientation.
[H/T Tony Tate]
[Image of Uganda Coat of Arms via]
Thursday, February 13, 2014
United States District Judge John G. Heyburn's opinion in Bourke v. Beshear finds that Kentucky's statutory and state constitutional provisions defining marriage as limited to one man and one woman violate the Fourteenth Amendment's Equal Protection Clause when applied to same-sex spouses married in another state.
The judge's 23 page opinion is crafted for both a nonlegal and legal audience.
For popular consumption, Judge Heyburn's opinion has passages written in direct prose answering questions he himself has posed and unburdened with extensive citations. For example, he writes:
For many others, this decision could raise basic questions about our Constitution. For instance, are courts creating new rights? Are judges changing the meaning of the Fourteenth Amendment or our Constitution? Why is all this happening so suddenly?
The answer is that the right to equal protection of the laws is not new. History has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves. If this were not so, many practices that we now abhor would still exist.
He discusses religiosity in similar terms, beginning by noting that many Kentuckians believe "what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit" and later opining that
The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.
For its legal audience, Judge Heyburn's opinion contains a rigorous analysis of equal protection doctrine, of the Supreme Court's decision last June in United States v. Windsor, and of the courts applying Windsor.
Engaging with the Court's opinion in Windsor, authored by Justice Kennedy, Judge Heyburn expresses some frustration with the lack of clear equal protection doctrine, observing that the Court "never clearly explained the applicable standard of review." Nevertheless, Judge Heyburn used two "principles" of Windsor: that the actual purpose of the law must be considered in light of animus and that the laws must not demean one group by depriving them of the rights provided for others. Ultimately, Judge Heyburn applies rational basis review and finds that the government interests proferred by Kentucky - - - as well as those advanced in an amicus brief submitted by the Family Trust Foundation of Kentucky - - - are not legitimate interests.
Judge Heyburn also discusses the three federal district judges who have reached similar conclusions in "well-reasoned opinions," citing the opinions in Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed).
To be clear, the effect of the opinion is not to mandate clerks in Kentucky begin offering marriage licenses to same-sex couples. But it is to require Kentucky to recognize same-sex marriages valid in another state as valid in Kentucky on the same terms as other marriages.
[image: 1921 map of Kentucky via]
Friday, December 20, 2013
In his opinion in Kitchen v. Herbert, federal district judge Robert Shelby held
that Utah’s prohibition on same- sex marriage conflicts with the United States Constitution’s [Fourteenth Amendment] guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.
The judge interestingly relied upon Justice Scalia's dissenting opinion in last term's decision in United States v. Windsor, which held §3 of DOMA unconstitutional:
The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same- sex couples marital status.
133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.
Perhaps most controversially, Judge Shelby determines that marriage is a fundamental right and that restrictions on marriage merit strict scrutiny. He further finds that there is no compelling governmental interest justifying the same-sex marriage restriction, unlike, for example, a regulation of the age at which a person may be married which is supported by the compelling state interest of "protecting children against abuse and coercion."
Judge Shelby's opinion on equal protection grounds is much less controversial, and perhaps even conservative. Judge Shelby rejects the arguments - - - or at least the need for the arguments - - - regarding any sort of heightened scrutiny and resolves the case on rational basis review. This rejection includes the arguments centering on animus as a non-legitimate state interest. Instead, he concludes that the legitimate government interests that Utah cites are not rationally related to Utah’s prohibition of same-sex marriage. These interests include the by now familiar ones of "responsible procreation," "optimal child-rearing," "proceeding with caution," and "preserving the traditional definition of marriage."
He ends with an extended analogy to Loving v. Virginia, or more specifically, Virginia's arguments in the landmark case ruling the state's anti-miscengation law unconstitutional. And after clearing declaring sections 30-1-2 and 30-1-4.1 of the Utah Code and Article I, § 29 of the Utah Constitution unconstitutional under the Fourteenth Amendment, enjoins their enforcement.
Catharine MacKinnon Awarded Ruth Bader Ginsburg Award for Lifetime Achievement from AALS Section on Women in Legal Education
Professor Catharine MacKinnon, author of the books Feminism Unmodified and Toward a Feminist Theory of the State, as well as Are Women Human? has been announced as the recipient of the Ruth Bader Ginsburg Lifetime Achievement Award. There will be an event January 3, 2014 at the AALS Conference in NYC .
More from Feminist Law Professors here.
For those unfamilar with MacKinnon's recent work, this video from a 2011 talk at U Chicago Law School "Trafficking, Prostitution and Inequality" provides a good introduction.
In its highly anticipated judgment in Canada v. Bedford, the Supreme Court of Canada has unanimously declared several provisions of Canada's criminal code regulating prostitution and sex work to be inconsistent with the Canadian Constitution's Charter of Rights and thus unconstitutional, although it suspended the declaration of invalidity for one year to allow Parliament to act.
The provisions of the criminal code at issue were:
- § 210 making it an offence to keep or be in a bawdy‑house;
- § 212(1)(j) prohibiting living on the avails of prostitution; and,
- §213(1)(c) prohibiting communicating in public for the purposes of prostitution.
All there were declared inconsistent with §7 of the Charter which provides "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." The Court was clear that it was security - - - and not liberty - - - that was the animating principle for its decision.
Importantly, prostitution itself is legal in Canada, an important underpinning of the Court's decision. The Court reasoned that the criminal code provisions at issue heightened the risks prostitutes face, by not merely "imposing conditions" but also going "a critical step further by imposing dangerous conditions on prostitution" and prevent "people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks."
The Court rejected the notion that the created danger was "negated by the actions of third‑party johns and pimps, or prostitutes’ so‑called choice to engage in prostitution."
The Court then engaged in a type of purpose, means, and balancing analysis familiar in constitutional law. Quoting from the Court's handy summary of its reasoning and holding in this lengthy and scholarly opinion,
[First], the negative impact of the bawdy‑house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance. The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.
Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage. The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards. It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is consequently overbroad.
Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause. The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.
The Supreme Court of Canada's unanimous opinion affirms a judgment by the Court of Appeal for Ontario and one might believe that Canada's remaining criminalization of sex work have been vanquished. However, the Court recognized that the "regulation of prostitution is a complex and delicate matter," and that Parliament "should it choose to do so" could "devise a new approach, reflecting different elements of the existing regime." The Court suspended its declaration of invalidity for one year. And one might say that the "ball" is now in Parliament's "court."
[image: Canada Supreme Court building's Grand Entrance Hall via]
The anti-homosexuality bill has been before the Uganda Parliament for several years. For background - - - including discussions of the links between the bill and US evangelicals- - - both Jeff Sharlett's 2010 Harper's Magazine article Straight Man’s Burden: The American roots of Uganda’s anti-gay persecutions and the documentary film God Loves Uganda are worth consideration.
The death penalty was removed from the Bill during the debate, and the death penalty was replaced with life imprisonment.
- Clause 14 Failure to disclose the offense was deleted because the clause will be too hard to implement
- Clause 12 was amended,a new clause inserted that sentences any person or institution that conducts gay marriage to 7yrs and licence canceled
- Clause 9(b) the words"either in Uganda or elsewhere"or" appearing at the end of the end of the sub- clauses 1(a) (b)were deleted
- Clause 9 was amended by deleting the words "etc " in the head note, because it makes the head note appear vague
- Clause 8 Conspiracy to engage in homosexuality, was deleted because it is provided for under clause 13
- Clause 7 : Aiding and abettting Homosexuality was deleted, because it provided for under clause 13
An official copy of the bill is not yet available. It must be presented to the President of Uganda for assent.
Additionally, yesterday the Uganda Parliament passed The Anti Pornography Bill creating the offense of pornography. As defined, it includes "any indecent act or behavior tending to corrupt morals."
Should there be Presidential assent and the bills become law, there are vows to challenge the constitutionality of both laws in the courts.
Thursday, December 19, 2013
In its unanimous opinion in Griego v. Oliver, the New Mexico Supreme Court has declared that the state must recognize same sex marriages. The court found that
barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution. We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.
Interestingly, the court concluded that any prohibition of same-sex marriage raised a classification based on sexual orientation (and not sex), although its rationale raised the specter of the kind of formal equality at issue in Plessy v. Ferguson:
We do not agree that the marriage statutes at issue create a classification based on sex. Plaintiffs have conflated sex and sexual orientation. The distinction between same- gender and opposite-gender couples in the challenged legislation does not result in the unequal treatment of men and women. On the contrary, persons of either gender are treated equally in that they are each permitted to marry only a person of the opposite gender. The classification at issue is more properly analyzed as differential treatment based upon a person’s sexual orientation.
Nevertheless, the court found that the appropriate level of scrutiny was intermediate:
because the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination. . . . the class adversely affected by the legislation does not need to be “completely politically powerless, but must be limited in its political power or ability to advocate within the political system.” Nor does intermediate scrutiny require the same level of extraordinary protection from the majoritarian political process that strict scrutiny demands. It is appropriate for our courts to apply intermediate scrutiny, “even though the darkest period of discrimination may have passed for a historically maligned group.”
The court notes that its "decision to apply intermediate scrutiny is consistent with many jurisdictions which have considered the issue," citing the Second Circuit in Windsor, as well as the same-sex marriage cases from Iowa and Connecticut.
The court found that the same-sex marriage ban did not survive intermediate scrutiny. It considered three governmental interests advanced for prohibiting same-gender couples from marrying in the State of New Mexico:
- promoting responsible procreation
- responsible child-rearing
- preventing the deinstitutionalization of marriage
As to the last interest, the court noted that the defendants conceded there was no evidence that same-sex marriages would result in the deinstitutionalization of marriage, and the court implied this interest was "intended to inject into the analysis moral disapprobation of homosexual activity and tradition" and flatly rejected it.
As to procreation and child-rearing, the court rejected these interests as the governmental interests underlying New Mexico's marriage laws: "It is the marriage partners’ exclusive and permanent commitment to one another and the State’s interest in their stable relationship that are indispensable requisites of a civil marriage." But the court also found that neither interest would be substantially served by the prohibition of mariage to same-sex partners.
Thus, by a relatively brief opinion (approximately 30 pages) the New Mexico Supreme Court has unanimously ruled that same-sex marriages must be allowed in the state. Because the decision rests on the state constitution, it is not subject to review by the United States Supreme Court and New Mexico becomes the 17th state to allow same-sex marriages on the same terms as other marriages.
December 19, 2013 in Courts and Judging, Current Affairs, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)
Wednesday, December 11, 2013
In its long-awaited opinion in Koushal v. NAZ Foundation, the Supreme Court of India has reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional.
The Supreme Court decision noted that India's sodomy law was pre-constitutional - - - and derived from British rule - - - and also that the Court certainly had the power to declare the law unconstitutional as inconsistent with several provisions of the India Constitution, including
- Article 13 (Laws inconsistent with or in derogation of the fundamental rights)
- Article 14 (Equality before law)
- Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth)
- Article 19 (Protection of certain rights regarding freedom of speech etc.)
- Article 21 (Protection of life and personal liberty)
Nevertheless, the Court stated that there is a presumption of constitutionality given the "importance of separation of powers and out of a sense of deference to the value of democracy that parliamentary acts embody."
The Court's 98 page opinion authored by Justice Singhvi (who is interestingly scheduled to retire tomorrow, the day after the opinion was rendered), and without a dissenting opinion, criticizes the Dehli Court's reliance on non-national sources:
In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.
For United States scholars, such concern for nationalism certainly echoes the dissenting opinion in Lawrence v. Texas, in which the United States Supreme Court held unconstitutional a state law criminalizing sodomy. Yet in the India context, the fact that its constitutionalism is linked to British rule as well as the fact that the sodomy law is a product of colonialism (and is a law that the colonial power has since repudiated as former Australian High Court Judge Michael Kirby has analyzed as England's "least lovely" export) are distinguishing features.
Certainly, however, the problematizing of judicial review in the context of sexuality occurs in the United States cases as well as those from South Africa, an issue extensively discussed here.
And certainly, advocacy on behalf of "the so-called rights of LGBT persons" will be moving to India's Parliament.
[image of Supreme Court of India via]
Saturday, December 7, 2013
In Craig and Mullins v. Masterpiece Cakeshop, Inc., the subject is not the ACA ("Obamacare") as in the cases recently granted certiorari by the United States Supreme Court, or even a UK hotel or wedding photographs, both of which we discussed here, but a cake. But all these cases raise a similar question: can a secular for-profit corporation, or its owners, be exempted from a law by reason of a religious belief?
The 14 page opinion of the Administrative Law Judge (ALJ) in Masterpiece Cakeshop firmly rejects the arguments of the Cakeshop, reasoning that to accept its position would be to "allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage." The ALJ was not persuaded by the fact that Colorado, where the cakeshop is located, does not recognize same-sex weddings, because the cakeshop owner admitted he would feel similarly if it were a same-sex commitment ceremony or civil union, neither of which is forbidden by state law. Indeed, nothing compels the cakeshop or its owner "to recognize the legality of a same-sex wedding or to endorse such weddings," only, like "other actors in the marketplace serve same-sex couples in exactly the same way they would serve heterosexual ones."
The ALJ rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'"
As to the free exercise claim, the ALJ noted that the regulation at issue distinctly regulated conduct rather than belief. The ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test. The ALJ also rejected the argument "because the public accommodation law not only restricts their free exercise of religion, but also restricts their freedom of speech and amounts to an unconstitutional “taking” of their property without just compensation in violation of the Fifth and Fourteenth Amendments" a hybrid right meriting strict scrutiny was involved. For the ALJ, the "mere incantation" of other constitutional rights does not a hybrid claim create.
The remedy was a cease and desist order rather than damages.
[image: one of the cakes advertised on the Masterpiece Cakeshop website]
Friday, November 1, 2013
In a divided opinion including two senior judges, the Court of Appeals for the District of Columbia Circuit in Gilardi v. HHS entered the fray regarding corporate rights under RFRA and the First Amendment regarding the requirement that an employer include contraceptive coverage in its health care insurance. Recall that just last week, the Sixth Circuit denied the claim of Eden Foods, following the decision of another panel of the circuit in Autocam Corp. v. Sebelius, decided in September, that agreed with the divided panel of the Third Circuit's July opinion in Conestoga Wood Specialties that a for-profit secular corporation cannot assert a claim to religious freedom under RFRA, the Religious Freedom Restoration Act. This is contrary to the holding of the divided en banc Tenth Circuit's June majority opinion in Hobby Lobby v. Sebelius presently before the United States Supreme Court on a petition for writ of certiorari filed by the Solicitor General on behalf of Sebelius.
In Gilardi, the divisions by the DC Circuit judges - - - Janice Rogers Brown, Harry Edwards, and A. Raymond Randolph - - - reflect the divisions expressed in the other opinions. Judge Brown's main opinion is joined in various parts by only one of the other two judges, both of whom wrote separate opinions. Judge Randolph's opinion is a few pages, while Judge Edwards' opinion, concurring in part and dissenting in part is longer than the majority opinion.
The case involves Francis and Philip Gilardi, adherents of Catholicism, who oppose contraception for women. They are owners of Freshway Foods and Freshway Logistics, closely-held corporations that employ approximately 400 employees. Important for the analysis, the corporations "have elected to be taxed under Subchapter S of the Internal Revenue Code." Judge Randolph's brief opinion has a good explication of the relevance of Subchapter S.
The judges, excepting Randolph, first decide that the corporations do not possess a right of religious freedom. The majority finds that RFRA's "person" language does not solve the issue, and turns to First Amendment doctrine. The court notes that perhaps the "constitutional arithmetic" of "Citizens United plus the Free Exercise Clause equal a corporate free exercise right" might "ultimately prevail, but "for now" there is "no basis for concluding a secular organization can exercise religion," thus agreeing with cases such as Eden Foods. In the brief concurring opinion, Judge Randolph states this issue need not have been addressed.
This "leaves the Gilardis," as the court phrases it, and finds that they suffer an injury "separate and distinct" from the corporation. The majority - - this time without the agreement of Judge Edwards - - - finds that the religious freedoms of the individual men are burdened under RFRA. It applies strict scrutiny, as required by RFRA, but interestingly quoting from Fisher, last Term's equal protection case involving racial classifications in affirmative action programs at the the University of Texas. The majority then rejects as compelling the government interests in safeguarding public health, protecting women's autonomy, or promoting gender equality, finding these interests both too broadly formulated and even if satisfactory, not being served by the least restrictive means. In short, the majority concludes, even without the contraceptive mandate, the "statutory scheme will not go to pieces."
Judge Edwards' lengthy opinion finds that while the Gilardis may be sincere, the legal claim that the mandate imposes a substantial burden on their individual rights of free exercise of religion because "their companies are required to provide health insurance that includes contraceptive services" is "specious." Judge Edwards argues that while the individuals may have Article II standing to pursue their claim, this does not mean that they have a valid one. Judge Edwards extensively rehearses the Supreme Court's free exercise doctrine, intertwined with RFRA, and discusses the burden on the Gilardis. In a paragraph that captures the disagreement over whether individuals are burdened by the acts of corporations, he argues:
Amici also contend that the difference between the Mandate and paying wages is akin to the difference between a person who opposes the death penalty being required to pay taxes that fund executions, and being required to “purchase the drugs for a lethal injection and personally deliver them to the facility where the execution will take place.” Br. of 28 Catholic Theologians and Ethicists at 19. The problem with this rather extraordinary example is that the Mandate does not require the Gilardis to have nearly this degree of personal involvement in providing contraceptives. The Mandate does not require the Gilardis to transfer funds from Freshway’s accounts directly to the manufacturers or retailers of contraception. Nor are the companies required to deliver or distribute contraception to employees. Under the Employee Retirement Income Security Act, 29 U.S.C. § 1132(d)(1), Freshway is a distinct legal entity from its self-insured group health plan. The plan is operated by a third-party administrator, and, pursuant to health privacy regulations, the Gilardis are actually prohibited from being informed whether individual employees purchase contraceptive products, or about any other information regarding employees’ health care decisions. See Br. of Americans United for Separation of Church and State, et al., at 29-30 (citing 45 C.F.R. § 164.508; 45 C.F.R. § 164.510). Moreover, the Gilardis are free to procure Mandate-compliant coverage for their employees through an entirely independent, third-party insurance carrier, rather than administering their own group health plan. Id. This is a far cry from personally purchasing contraceptives and delivering them to employees.
Further, Judge Edwards would find that even if there were a substantial burden, there are compelling governmental interests supporting the contraceptive mandate provisions, including "promoting public health, welfare, and gender equality." He would find the exemptions narrow and, analogizing to the Social Security tax upheld by the United States Supreme Court, the scheme cannot function if persons are allowed to opt-out because money is being spent in a manner that violates their religious beliefs.
Because the district court found as a matter of law that the Gilardis did not have a substantial likelihood of prevailing on the merits, it denied the prelimiary injunction. Having reversed that conclusion of law, the majority remands for a determination of the other considerations for a preliminary injunction.
But most certainly the Gilardis case - - - or this issue - - - will not simply end there. It may be determined by what the Court does in Hobby Lobby, even as Freshway Foods is distinguished by being a different type of corporation.