A panel of the U.S. 6th Circuit Court of Appeals ruled on August 3 that the Supreme Court’s recent marriage equality decision, Obergefell v. Hodges, is irrelevant to an equal protection claim asserted against Cleveland, Ohio, police officers regarding the manner in which they arrested two gay men on April 8, 2011. Referring to the “law-of-the-circuit” doctrine, Circuit Judge Alice M. Batchelder relied on pre-Obergefell 6th Circuit precedents to apply the “rational basis” test and find that even if plaintiffs’ counsel had not waived their equal protection claim, the police had a rational basis for refusing to let them wear pants for the ride to the police station and the booking process. One member of the panel, Circuit Judge Jeffrey Sutton, dissented from this part of the ruling, but not on the merits. Sutton found that the court should have ruled that the equal protection issue was waived by plaintiff’s counsel at oral argument and thus should not have been addressed by the court.
Steven Ondo and Jonathan Simcox, roommates, were returning home after several hours of drinking at 2:00 AM on April 2, 2011. They “got into a heated argument outside their apartment building.” A neighbor came out to confront them about the noise, and Simcox told him to “fuck off.” “An altercation ensued between the three men,” wrote Judge Batchelder, “during which the neighbor identified himself as an off-duty police officer.” Evidently the neighbor called the precinct, because later that night the police came and arrested the plaintiffs in their apartment, resulting in them spending two nights in jail. The police followed up on the altercation with the off-duty officer, getting arrest warrants against Ondo and Simcox for “felonious assault on a police officer,” and a SWAT team showed up at their apartment building at 7:00 AM on April 8 to execute the warrant. Ondo and Simcox were not dressed at the time, wearing only boxer shorts. They allege that the police used homophobic slurs and when they asked to be allowed to put on pants, the officers said “faggots don’t wear pants in jail.” Further, they claimed that one officer said “It’s a house full of fags here.” They also allege that they were dragged down to the police station in their underwear and not given jumpsuits to wear until well after they were booked, an allegation that the trial judge found to be contradicted by other evidence.
They filed their 42 USC 1983 civil rights lawsuit against the City of Cleveland and 17 police officers in January 2012, but their complaint was deficient in specific factual allegations against specific officers and even an amended complaint fell short on this. The City got several of the defendants dismissed from the case so that it was narrowed down to the SWAT team members, and then moved for summary judgment. Responding to the s.j. motion, the plaintiffs alleged further facts trying to bolster their case in affidavits which made the allegations based on “personal knowledge and belief,” without specifying which facts were based on “personal knowledge” and which facts were based on “belief.” The City moved to strike the affidavits and the court granted the motion, on the ground that only factual assertions based on personal knowledge were sufficient to ground the plaintiffs’ equal protection claim against specific police officers. Then the court granted the City’s summary judgment motion.
A major part of the 6th Circuit’s opinion was devoted to explaining why the trial court was correct to strike the affidavits, and to examine the City’s further argument that plaintiffs had abandoned many of their claims at oral argument. Ultimately, in the view of the majority of the panel, plaintiffs’ counsel had conceded at argument that if the Court of Appeals upheld the trial judge’s decision to strike the affidavits, the case was basically over, but, wrote Judge Batchelder, “Regardless of our stance on abandonment, on the remaining record the equal protection claim fails as a matter of law,” and this is where the court found that Obergefell made no difference to the analysis. Plaintiffs’ counsel had stated at argument that the entire equal protection claim boiled down to the contention that the police refused to let the men wear pants over their boxer shorts because they were gay, and this constituted unconstitutional unequal treatment. There was also a state law allegation of infliction of emotional distress.
Plaintiffs argued that “state actions involving homosexuals should trigger some form of heightened scrutiny under the Equal Protection Clause.” Wrote Judge Batchelder, “First, Plaintiffs cannot demonstrate that the state action of which they complain burdens a fundamental right. When the Supreme Court held that state laws against sodomy violate the Due Process Clause, it did so using the language of rational-basis review, rather than any form of heightened scrutiny,” citing Lawrence v. Texas. “The Court did not hold that the Constitution includes a fundamental right to homosexual conduct. Whether the Court’s recent decision in Obergefell v. Hodges recasts engaging in homosexual acts as a fundamental right is irrelevant, because the decision by the police relevant here does not impair Plaintiffs’ ability to engage in such conduct. Nor can Plaintiffs establish that homosexuals are a suspect or quasi-suspect class. The Court has never held that homosexuals satisfy the criteria for such classification.” The court cited two cases for this assertion, neither of which deals with sexual orientation claims. “The Supreme Court has not recognized any new constitutionally protected classes in over four decades,” she continued, “and instead has repeatedly declined to do so. Moreover, the Court has never defined a suspect or quasi-suspect class on anything other than a trait that is definitively ascertainable at the moment of birth, such as race or biological gender. In Obergefell, the Court was explicitly asked by the petitioners and various amici to declare that homosexuals are a specially protected class, and thus that government actions that disfavor homosexuals are subject to heightened scrutiny. But the Court held only that the Equal Protection Clause was violated because the challenged statutes interfered with the fundamental right to marry, not that homosexuals enjoy special protections under the Equal Protection Clause.”
Since the 6th Circuit has, in its pre-Obergefell rulings, always applied rational basis review to sexual orientation discrimination claims, the court decided that under the “law of the circuit” doctrine, it must do so in this case. Applying that approach here, the court found that the police had provided an adequate basis for their decision to arrest the men and take them to the police station in their underwear — concern for the officers’ safety, as the two men were agitated and were being arrested for assaulting a police officer — which, said the court, “is presumed valid and rationally related to a legitimate public interest. Therefore,” wrote Batchelder, “Plaintiffs’ grievance regarding being kept in their boxer shorts until the police could issue them jumpsuits, even if motivated in part by sentiments regarding homosexual behavior, still does not violate the Constitution.”
Judge Sutton, concurring in the court’s decision to affirm the district court’s grant of summary judgment, wrote that it was unnecessary to take on the equal protection issue, as the plaintiffs’ counsel at oral argument had waived the claim by conceding that if the decision to strike the affidavits was upheld the constitutional claim would have to be dismissed. Judge Sutton, of course, was the author of the 6th Circuit’s opinion that was reversed by the Supreme Court in Obergefell v. Hodges. In that opinion, he had found that the plaintiffs’ equal protection claim was not subject to heightened scrutiny, for essentially the same reasons that Judge Batchelder articulated in the panel opinion in this case.
Plaintiffs were represented by Sara Gedeon on the appeal.