State and federal courts released a flood of new LGBT-related opinions in the last few weeks of 2012. Here is a brief summary of the most significant.
The Montana Supreme Court divided 4-3 in a December 17 ruling over whether the court could issue a declaratory judgment on a claim that the statutory structure of Montana law unconstitutionally discriminates against same-sex couples. Donaldson v. State, 2012 MT 288. Chief Justice Mike McGrath wrote for the majority that the trial judge correctly ruled that issuing the declaration sought by the plaintiffs would “run afoul of the separation of powers required by Article III, Section 1 of the Montana Constitution” because it would “likely impact a large number of statutes in potentially unknown and unintended ways.”
Montana has a state constitutional amendment that provides that only the union of a man and a woman can be a valid marriage in that state. The plaintiffs, a group of same-sex couples, sought a declaration that withholding the rights and benefits associated with marriage violated their right to equal protection of the law required by the state constitution. They are not seeking the right to marry, however, but only equal treatment for their relationships. In effect, they were asking the court to declare that if they can’t be married, they are entitled to something like a civil union or domestic partnership carrying equivalent rights.
While the majority of the court was unwilling to rule in favor of the plaintiffs, they were also careful not to rule about whether the plaintiffs might have a valid claim concerning any particular statute. Sending the case back to the trial court, they directed that the plaintiffs be allowed to file an amended complaint attacking particular statutes as violating their equal protection rights. In a separate opinion, Justice Jim Rice, a member of the majority, opined that such an action would be unsuccessful because of the anti-gay-marriage amendment.
The majority’s action stimulated a lengthy, passionate dissenting opinion by retiring Justice James C. Nelson, who observed that this was his last opportunity to write on gay rights as a justice of the court. Justice Nelson insisted that the majority was mistaken, that the demand for declaratory relief was justiciable, and that the court should declare sexual orientation to be a “suspect classification” under Montana law, which would make all unequal treatment of same-sex couples presumptively unconstitutional. He also suggested that the Montana Marriage Amendment is itself a violation of the state constitution. The two other dissenters were not willing to go so far, and wrote separately to endorse most but not all of Nelson’s dissenting opinion, agreeing with him that the Marriage Amendment did not preclude the plaintiffs’ claim and that the court should have granted declaratory relief as requested by the plaintiffs.
In Wisconsin, the Court of Appeals (an intermediate appellate court) issued a more favorable decision in a lawsuit involving the rights of same-sex couples on December 20. Appling v. Doyle, 2012 Westlaw 6633863. Wisconsin also has a Marriage Amendment, but this one goes farther than Montana’s, providing that the legislature may not create a “legal status” for same-sex couples that is “substantially similar” to marriage. A few years after this amendment was enacted, the legislature passed a Domestic Partnership Registration Act, which established a status of “domestic partner” and amended several state laws to provide that domestic partners be treated equally with married couples for specified purposes. A group of proponents of the Marriage Amendment filed suit, seeking a declaration that the DP law violated the Marriage Amendment.
Affirming a ruling by the circuit court, the Court of Appeals found that the plaintiffs had failed to show that the new domestic partnerships are “substantially similar” to marriage. The opinion emphasized that the legislature had taken care to avoid violating the amendment by providing a list of rights for domestic partners that fell significantly short of conferring all the rights of marriage. The court found, based on reviewing the campaign statements of proponents of the Marriage Amendment, that they had disavowed any intent to block the state from recognizing same-sex partners for specific purposes, only meaning to prevent “Vermont-style” civil unions that conferred virtually all the rights of marriage on civil union partners. Wisconsin’s DP law falls far short of that.
Federal appeals courts also issued some notable rulings in December. On December 17, the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, upheld a ruling in favor of the University of Toledo, which had discharged its Associate Vice President for Human Resources after she published an anti-gay op-ed article in the Toledo Free Press in response to a pro-gay-rights editorial in that newspaper. Dixon v. University of Toledo, 2012 Westlaw 6554693.
The editor of the Free Press had compared the gay rights movement to the movements for black civil rights and disability rights, in the course of an editorial commenting adversely on the failure of the University to extend domestic partnership benefits to employees at a newly merged medical campus. In her response, Dixon stated, “As a Black woman who happens to be an alumnus of University of Toledo’s Graduate School, an employee and business owner, I take great umbrage at the notion that those choosing the homosexual lifestyle are ‘civil rights victims.’” She went on to talk about “thousands of homosexuals” leaving “the gay lifestyle” through “Exodus International,” and defended the University’s benefits policy.
The President of the University was evidently appalled, as he suspended and then discharged Dixon and published a statement disassociating the University from her remarks in the Free Press. Dixon claimed that her 1st Amendment rights were violated, but the court held that the University was free to discharge a person in her position for making public statements that were contrary to the University’s policies. The court also rejected her Equal Protection argument, finding that she could not show that another employee with her responsibilities – enforcing the University’s civil rights policies – had been retained after making public statements in conflict with those policies.
Another federal appeals court, the 9th Circuit based in San Francisco, ruled on December 20 that the district court in San Diego should have rejected constitutional claims by two sets of parents who were challenging the city’s lease of park facilities to the local chapter of the Boy Scouts of America. Barnes-Wallace v. City of San Diego, 2012 Westlaw 6621341. Contrary to the district court, the court of appeals found that the leases did not violate a California constitutional provision forbidding the state from providing aid to religion, and also did not violate the state or federal Establishment Clauses, which require government neutrality with respect to religion. Although the Boy Scouts claim to be a non-denominational organization, the Scout oath contains references to God and the organization officially excludes atheists or homosexuals from its ranks. In 2000, the U.S. Supreme Court ruled that the Scouts have a 1st Amendment right to exclude gay people from leadership positions.
The court observed that 123 non-profit organizations had lease or contractual arrangements with the city of San Diego involving parks and other facilities, some of them religious groups but most not. The court concluded that the state constitutional provision was concerned with direct financial aid, not with these kinds of lease arrangements, and that the arrangements with the Scouts did not signal some kind of favoritism to religion by the city, in light of the diversity of organizations with which the city had such arrangements. A member of panel wrote separately to argue that the plaintiffs didn’t really have constitutional standing to bring the suit in federal court, as they had never been directly harmed by the lease arrangement.
The U.S. District Court in Alabama issued a notable ruling on December 21 in Henderson v. Thomas, Civ. Action No. 2:11cv224-MHT (MD Ala.), finding that changes in medical knowledge and treatments for HIV-infection had rendered the Alabama Department of Corrections’ policy on inmates living with HIV in violation of the Americans with Disabilities Act. Although the 11th Circuit Court of Appeals, based in Atlanta, had rejected a similar claim during the 1990s, District Judge Myron H. Thompson pointed out that the prior decision, which upheld Alabama’s strictly segregated housing for such inmates, excluding them from many prison programs and from contact with the general prison population, was based on medical knowledge at the time, and that the world of HIV in prisons has moved on. The ACLU represented prisoners challenging the current policy.
When the 11th Circuit had ruled, many prison systems imposed significant restrictions on inmates with HIV. Judge Thompson pointed out that most prison systems have since revised their rules, and that Alabama was behind the times in this regard, as inmates who were compliant with their treatment regimens presented little risk of HIV transmission to others and had the same need as other inmates to participate in programs that would help them make the transition back to the civilian population after serving their sentences. Thompson agreed to let the state propose a program to comply with his ruling, rather than to impose a direct judicial solution.
Finally, on December 12 the Iowa District Court in Polk County ruled in favor of Lambda Legal’s claim that the state Department of Health (DPH) should not have refused to list both members of a married lesbian couple, Jessica and Jennifer Buntemeyer, as parents on the Certificate of Fetal Death issued when Jessica gave birth to a stillborn infant. Buntemeyer v. Iowa Dept. of Public Health, Case No. CV 9041 (Polk Co. Dist. Ct.). The women married in Iowa in 2010 and Jessica became pregnant through donor insemination, but their child was stillborn on October 21, 2011. They submitted a Certificate listing Jessica as “mother” and Jennifer as “father,” and indicated that Jessica was married. DPH registered and returned the certificate, but altered it to remove Jennifer’s name, leaving the “father” space blank.
The DPH Bureau Chief testified that DPH’s job is to maintain “accurate and complete records and statistics of all vital events in Iowa,” including fetal deaths, and that listing Jennifer as “father” would make the record inaccurate. The court disagreed, accepting Lambda Legal’s argument that under the Iowa Supreme Court’s unanimous marriage decision, same-sex marriages are to be treated the same under state law as different-sex marriages. Thus, both parents were entitled to be listed on the Certificate, and this would not compromise the accuracy of the Department’s records.
Following up on a story from earlier in December, opponents of the new California law that bans health care providers from engaging in “sexual orientation change efforts” on minors, SB 1172, gained a temporary victory when they persuaded the emergency appeals panel of the U.S. Court of Appeals for the 9th Circuit to block the ban from going into effect while the court considers an appeal from U.S. District Judge Kimberly Mueller’s December 4 ruling (Pickup v. Brown, 2012 Westlaw 6021465) that the ban does not violate the 1st Amendment rights of health care providers who want to continue such treatments. The appellate panel issued its order on December 21.
Another judge in the same district court, William Shubb, had issued a contrary ruling on December 3 in a case brought by a different set of plaintiffs, Welch v. Brown, 2012 Westlaw 6020122, issuing a preliminary injunction blocking the state from enforcing the new law against the three plaintiffs in the case before him pending a final ruling on the merits of their 1st Amendment claim. However, Shubb’s order would not have prevented the statute from going into effect on January 1 regarding any other health care providers. The 9th Circuit’s consideration on the merits in the appeal of Judge Mueller’s ruling may render the proceedings before Judge Shubb superfluous.