The U.S. Supreme Court announced on April 15 that it will not hear an appeal by gay death row inmate Charles Rhines, who contends that the jury that chose death over life in prison without parole in his murder trial in 1993 was tainted by homophobic statements by some of the jurors during deliberations. Rhines v. Young, No. 18-8029 (filed Feb. 15, 2019). At the same time, the Court announced that it will not take up the question whether the U.S. 3rd Circuit Court of Appeals, based in Philadelphia, should reconsider its 2014 decision to reject a constitutional challenge to a New Jersey law prohibiting licensed health care providers from providing “conversion therapy” to minors. King v. Murphy, No. 18-1073 (filed Feb. 11, 2019). Both of these petitions for review were considered long shots at best.
The South Dakota Attorney General’s Office filed a short reply to Rhines’ petition, insisting that its own investigation of the jury – sparked by his contentions – had failed to substantiate his claim that the jurors sentenced him to death because he is gay. There is no doubt that a juror joked that Rhines, as a gay man, would enjoy being locked up for life in an all-male environment where he would be able to mingle with other prisoners and enjoy sexual contacts, as even interviews conducted by the AG’s office confirmed this. Interviews of jurors by Rhines’ lawyers, conducted long after the trial, produced a range of recollections, ranging from a recollection that the juror in question was challenged for his remarks and apologized, to a recollection that there was considerable discussion of Rhines’ sexuality, which had been a topic of testimony during the penalty phase of the trial, when a family member testified that Rhines had struggled with his sexuality.
The jury sent a note to the trial judge during penalty deliberations, posing a series of questions about the conditions under which Rhines would be serving if he were sentenced to life without parole. Some of the questions inspired concerns by Rhines’ defense attorney that the jurors were inappropriately taking his sexual orientation into account in making their decision. The trial judge refused to respond to the questions, instructing the jurors to rely on the instructions he had previously given them.
Rhines has spent a quarter-century on death row since his conviction and sentencing, seeking to get courts to set aside the death sentence based on a variety of theories, but his hopes were spurred by a Supreme Court decision last year, holding that a court could breach the usual confidentiality of jury deliberations when there was evidence of inappropriate race discrimination by a jury. Had the Court taken Rhines’ case, it would have provided an opportunity to determine whether juror homophobia should receive the same constitutional evaluation as jury racism.
Unfortunately, the federal courts in South Dakota and the 8th Circuit Court of Appeals found that this issue was not raised early enough in the appellate process, and that Rhines’ attempt to bring a fuller account of the juror interviews before the courts came too late. As a result, no court has ever considered Rhines’ evidence of jury homophobia on the merits. The Supreme Court had turned down a prior attempt by Rhines last year, while a prior appeal was pending before the 8th Circuit. After the 8th Circuit rejected his latest attempt, Rhines filed a new petition, but in vain.
Publicity to his plight resulted in the submission of three briefs in support of his petition, by a Law Professors group, the NAACP Legal Defense & Education Fund, and the American Civil Liberties Union. Although the Court granted the motions to receive those briefs, it rejected Rhines’ petition without comment.
The conversion therapy petition posed a novel question to the Court. Should it order a federal appeals court to reopen a decision that had received unfavorable mention in a recent Supreme Court opinion in an unrelated case, when the Supreme Court itself had years ago rejected a petition to review the appeals court decision?
Conversion therapy practitioners filed a constitutional challenge to the New Jersey law banning conversion therapy, claiming it violated their constitutional free speech rights. The federal district court and the 3rd Circuit Court of Appeals both rejected their argument. King v. Governor of New Jersey, 767 F. 3d 216 (3rd Cir. 2014), cert. denied, 135 S. Ct. 2048 (2015). The speech involved was “professional speech,” said the court of appeals, and thus entitled to less protection than political or literary speech. The 3rd Circuit’s ruling reached the same result as a ruling by the San Francisco-based 9th Circuit in rejecting an earlier challenge to California’s conversion therapy ban, but the 9th Circuit had opined that the regulation of therapy was not subject to 1st Amendment challenge because it was a regulation of health care practice, not specifically aimed at speech as such. These distinctions did not affect the outcome of the two cases. Either way, the courts found that the state’s legitimate concerns about protecting minors from a practiced that he been condemned by leading professional associations outweighed the practitioners’ free speech claims.
However, in a new case arising from California last year, Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (June 26, 2018), the Supreme Court found fault with a state law that required licensed clinics providing services to pregnant women to advise them of the availability of abortion services from the state. The Supreme Court found this to be “compelled speech” subject to the most demanding level of judicial review, “strict scrutiny.” The state’s argument defending this requirement relied on the conversion therapy cases, arguing that the speech in question was “professional speech” subject to a less demanding level of judicial review. Writing for the Court, Justice Clarence Thomas rejected that argument, and he specifically mentioned the 3rd Circuit’s ruling with disfavor.
Even though the Supreme Court had refused a petition to review the 3rd Circuit’s ruling in 2015, the conversion therapy practitioners asked the 3rd Circuit to reconsider its ruling in light of the Supreme Court’s negative comments about the earlier decision. The 3rd Circuit refused, and this petition for Supreme Court review was filed on February 11. Counsel for the respondents – New Jersey’s Attorney General and Garden State Equality, which had intervened as a co-defendant in the original case – thought so little of the petitioners’ chances that they did not file briefs in opposition. Their confidence was justified. It was never likely that the Supreme Court would order a circuit court to reopen a case from years ago that had already been denied direct review by the Supreme Court.
The Supreme Court’s April 15 announcements, deriving from its April 12 conference, failed to include any mention of five other pending cases related to LGBT rights that are being closely watched. The Court will hold another conference to discuss pending petitions on April 18 (a day earlier than normal because of the Good Friday holiday on April 19), so there may be word on April 22 whether the Court will address sexual orientation and gender identity discrimination issues next term, as well as another “gay wedding cake” case.