With President Donald J. Trump’s nomination of Brett Kavanaugh to fill the seat vacated by Justice Anthony M. Kennedy, Jr.’s, retirement effective July 31, petitions pending at the Supreme Court took on heightened significance while the confirmation hearings took place during the first week of September and the Court’s traditional “long conference” for considering accumulate petitions was anticipated during the last week of the month. The Court might be announcing decisions on petitions for certiorari at the end of that last week, as it has done occasionally in recent years, or it might save them for October 1, the first Monday in October when the Constitution mandates that the Court formally open its new term. The Court continues to make such announcements from week to week over the course of the Term. Petittions are not scheduled for the Court to discuss in conference until all responding and reply briefs have been filed.
For observers of LGBT law, several pending petitions loom, the most consequential being those asking the Court to take up the question whether the federal law banning employment discrimination because of sex, Title VII of the Civil Rights Act of 1964, applies to claims of discrimination because of sexual orientation or gender identity. Three pending petitions raise this question.
In Bostock v. Clayton County Board of Commissioners, 723 Fed. Appx. 964, a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals affirmed on May 10 a decision by the U.S. District Court for the Northern District of Georgia to dismiss Gerald Lynn Bostock’s Title VII claim alleging employment discrimination because of his sexual orientation, holding that it was bound by prior circuit precedent, a 1979 ruling by the old 5th Circuit in Blum v. Gulf Oil Corporation, 597 F.2d 936, which was recently reaffirmed by another panel of the 11th Circuit in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir.), cert denied, 138 S. Ct. 557 (2017). Three-judge panels are required to follow circuit precedents, which can be overruled only by an en banc court or the Supreme Court. The 11th Circuit Bostock panel also noted that Mr. Bostock had “abandoned any challenge” to the district court’s dismissal of his alternative claim of gender stereotyping sex discrimination. The 11th Circuit had ruled in 2011 in Glenn v. Brumby, 663 F.3d 1312, that a transgender plaintiff could bring a Title VII sex discrimination claim under a gender stereotyping theory, on the authority of the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), but the court noted that in Evans, a majority of the 11th Circuit panel had rejected extending the same theory to uphold a sexual orientation claim as sex discrimination, and this, of course, is also now binding 11th Circuit precedent.
Bostock sought en banc reconsideration of the panel decision by the full 11-member bench of the circuit, but also filed a petition for certiorari with the Supreme Court on May 25. On July 18, the 11th Circuit announced a denial of the petition for rehearing en banc, voting 9–2. Bostock v. Clayton County Board of Commissioners, 894 F.3d 1335. Circuit Judge Robin Rosenbaum, who was the dissenting member of the Evans panel, released a dissenting opinion on this denial, joined by Circuit Judge Jill Pryor.
Although the Evans and Bostock panel decisions may have been foreordained by circuit precedent [which Judge Rosenbaum did not concede, in light of intervening Supreme Court rulings in Price Waterhouse and Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), in which the Supreme Court unanimously held that interpretation of Title VII’s sex discrimination provision was not limited to the intentions of members of Congress in 1964], recent developments persuaded the dissenters that the issue raised in this case “is indisputably en-banc-worthy. Indeed,” continued Rosenbaum, “within the last fifteen months, two of our sister Circuits have found the issue of such extraordinary importance that they have each addressed it en banc. See Zarda v. Altitude Express, Inc., 883 F.3d 100 (2nd Cir. 2018)(en banc); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc). No wonder. In 2011, about 8 million Americans identified as lesbian, gay or bisexual,” citing a demographic study published by the Williams Institute at UCLA Law School. “Of those who so identify, roughly 25% report experiencing workplace discrimination because their sexual preferences do not match their employers’ expectations. That’s a whole lot of people potentially affected by this issue.”
Judge Rosenbaum strongly argued that the 11th Circuit’s implicit decision to “cling” to a “39-year-old precedent” that predates Price Waterhouse by a decade is ignoring “the Supreme Court precedent that governs the issue and requires us to reach the opposite conclusion,” as she had argued in her Evansdissent. “Worse still,” she wrote, “Blum’s ‘analysis’ of the issue is as conclusory as it gets, consisting of a single sentence that, as relevant to Title VII, states in its entirety, ‘Discharge for homosexuality is not prohibited by Title VII.’ And if that’s not bad enough, to support this proposition, Blum relies solely on Smith v. Liberty Mutual Insurance Co., 569 F.2d 325 (5th Cir. 1978) — a case that itself has been necessarily abrogated not only by Price Waterhouse but also by our own precedent in the form of Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).” Necessarily abrogated, of course, because Smith was a transgender discrimination case, which was implicitly overruled in Glenn, also a transgender discrimination case! “I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine,” Rosenbaum continued, “when it comes to an issue that affects so many people.” Rosenbaum argued that regardless of what a majority of the court’s views might turn out to be on the substantive issue in the case, it had an obligation to, “as a Court, at least subject the issue to the crucial crucible of adversarial testing, and after that trial yields insights or reveals pitfalls we cannot muster guided only by our own lights, to give a reasonable and principled explanation for our position on this issue — something we have never done.” (Some quotation marks omitted). But, shamefully, the 11th Circuit has absented itself from the current interpretive battle.
Bostock is represented by Thomas J. Mew IV, Timothy Brian Green, and Brian J. Sutherland of Buckley Beal LLP, Atlanta, who filed the petition for certiorari on May 25, №17–1618, with Sutherland listed as counsel of record. Clayton County filed a “Waiver” of its right to respond to the petition on June 27, and the cert petition was circulated to the Justices’ Chambers on July 3, anticipating the “long conference” that will begin on September 24. But evidently some of the Justices were not satisfied to consider taking this case without hearing from the ‘other side,’ so on July 13 it sent a request for a response, to be due August 13. Clayton County retained counsel, Jack R. Hancock and William H. Buechner, Jr., of Freeman Mathis & Gary LLP, Forest Park, GA, who filed the County’s response to the petition on August 10, opposing the petition. They argued that the appeal was an attempt to get the Court to do Congress’s work, which should be rejected. Bostock’s attorneys filed a brief in opposition on August 24. On August 29, the Supreme Court clerk again circulated all of these papers to the Justices’ Chambers anticipating the September 24 conference.
The other case pending before the Supreme Court presenting the same question, but this time appealing from the opposite side of the issue, is Altitude Express v. Zarda, from the New York-based 2nd Circuit. A three-judge panel had affirmed the district court’s decision to dismiss a Title VII sex discrimination claim by Donald Zarda, a gay sky-diving instructor, who based his claim on alternative assertions of gender stereotyping or sexual orientation discrimination being a form of sex discrimination, on April 18, 2017. However, 2nd Circuit Chief Judge Robert Katzmann attached a concurring opinion to the panel ruling, calling for the 2nd Circuit to reconsider this issue en banc in an appropriate case, noting the then-recent ruling by the 7th Circuit in Hively and other developments. Thus encouraged, the Estate of Donald Zarda sought and obtained en banc review, resulting in a decisive repudiation of its past precedent by the 2nd Circuit on February 26, 2018. Judge Katzmann’s opinion for the majority of the en banc court held that discrimination because of sexual orientation is, at least in part, discrimination because of sex, and thus actionable under Title VII. The Estate of Zarda is represented by Gregory Antollino, New York, NY, with Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, on the brief.
Saul D. Zabell and Ryan T. Biesenbach, Zabell & Associates, P.C., of Bohemia, N.Y., counsel for Altitude Express, filed a petition for certiorari on May 29. Responsive papers were filed over the summer, and all the papers were distributed on September 5 to the Justices’ Chambers anticipating the September 24 “long conference.” The federal government, consistent with positions announced in various contexts by Attorney General Jeff Sessions, rejects the 2nd Circuit’s en banc ruling and, if certiorari were granted in Bostock or in Altitude Express v. Zarda, №17–1623, would presumably seek to participate in oral argument.
It is highly unlikely that the Court will make an announcement concerning the gender identity discrimination case, also a Title VII case, right at the beginning of the Term. The Cincinnati-based 6th Circuit Court of Appeals ruled on March 7 in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, that the employer violated Title VII when it discharged a transgender funeral director because she insisted on presenting as female in the workplace. The EEOC, which had ruled years earlier that it considered discrimination because of gender identity or gender transitioning to be, necessarily, discrimination because of sex, initiated the lawsuit in the U.S. District Court in the Eastern District of Michigan. Although the district judge accepted the EEOC’s argument that this could be a valid claim of sex discrimination under Title VII using the gender stereotype theory (which had previously been embraced by panels of the 6th Circuit in cases involving municipal employees), he concluded that the funeral home had a right under the Religious Freedom Restoration Act (RFRA) to be free of government prosecution, because of the burden it placed on the sincere religious beliefs of the funeral home’s owner concerning sex and gender identity.
The 6th Circuit affirmed in part and reversed in part. In an opinion by Circuit Judge Karen Nelson Moore, the court agreed with the district judge that gender identity discrimination can be the basis of a Title VII claim, but the court went a step further than its prior panel opinions by asserting, as the EEOC had argued, that discrimination “because of sex” inherently includes discrimination against employees because of a change in their sex, without any need to analyze the question of gender stereotypes. The court reversed the district court’s ruling on the RFRA defense, finding that requiring the employer to continue to employ a transgender funeral director would not substantially burden his right to free exercise of religion, and specifically rejecting the employer’s reliance on presumed customer non-acceptance of a transgender funeral director as a legitimate justification for the discharge. The court also rejected the employer’s argument that because of the religiosity of the owner and the way he conducted his business, his funeral directors should be treated as “ministers” as to whom the owner would enjoy a 1st Amendment-based “ministerial exception” from complying with Title VII.
In the normal course, one might anticipate that a petition to review a Court of Appeals decision that was issued on March 7 would generate the necessary paperwork in time to be considered during the “long conference” beginning on September 24, but in this case Alliance Defending Freedom, the anti-gay religious litigation group that is representing the funeral home, requested and received from the Court an extension of time to file their petition, which was not docketed by the Clerk until July 20, №18–107, with responses due August 23. Then the Court granted a request from the Solicitor General’s Office, representing the EEOC (and thus the government) for an extension of time to file a response, which was granted to September 24, 2018, the date on which the “long conference” will begin. Thus, at the end of August, the official response of the government to this petition had not yet been filed, but one would expect that with the change of administration and the position on these issues announced by the Justice Department, it is likely that the Solicitor General will urge the Court to take this case and reverse the 6th Circuit, both as to the Title VII ruling and the RFRA ruling. As to the former, Attorney General Sessions has issued written guidance binding on his Department that gender identity discrimination does not violate Title VII, and, as to the latter, President Trump has issued an executive order, recently amplified by Attorney General Sessions, directing that the Executive Branch give maximum play to free exercise of religion whenever that issue is raised.
Counsel for Petitioner filed a blanket consent for the filing of amicus briefs on August 15, and on the original response date of August 23, the Clerk recorded filing of amicus briefs from the Jewish Coalition for Religious Liberty, the Foundation for Moral Law, the State of Nebraska on behalf of itself and fifteen other states, and Public Advocate of the United States, all urging the Court to take the case and reverse the 6th Circuit for a variety of reasons, taking issue with the 6th Circuit’s decision on every conceivable point.
It would be very surprising if the Court did not grant the petitions in Altitude Express and Harris Funeral Homes, as both court of appeals decisions extend existing splits in circuit court interpretations of Title VII, the nation’s basic employment discrimination statute, and employ reasoning that potentially affects the interpretation of many other federal sex discrimination statutes, such as the Fair Housing Act, the Equal Credit Opportunity Act and the Affordable Care Act. (See elsewhere in this issue of Law Notes coverage of a new 7th Circuit decision involving discrimination against a lesbian resident of a senior housing facility, for example.) The court’s denial of the petition in the 11th Circuit’s Evans case last year was surprising, but not inexplicable, given the 11th Circuit’s reiteration of long-standing precedent, as well as the 2–1 panel’s willingness to allow the lesbian plaintiff in that case to continue her lawsuit under Title VII using a gender stereotype theory. The public employer in the Hively case from the 7th Circuit did not seek Supreme Court review, so Altitude Express gives the Court its first opportunity to confront the interpretive issue head-on in an appeal brought by a frequent (and frequently-successful) advocacy group, Alliance Defending Freedom. The addition of Brett Kavanaugh to the Court, if the Senate confirms his nomination, increases the likelihood for a cert grant, given his presumed views on Title VII. Although he has not written on this precise issue as a court of appeals judge, Kavanaugh’s record in employment discrimination cases is strongly pro-employer, and his record would also suggest an expansive view of the protection of employers’ religious freedom under RFRA.
Also pending before the Court is a petition filed on behalf of Oregon Judge Vance D. Day, who was sanctioned by the Oregon Commission on Judicial Fitness and Disability in a report that was approved by the Oregon Supreme Court for, among other things, refusing to perform same-sex marriages, among a host of charges. Inquiry Concerning a Judge re: the Honorable Vance D. Day, 413 P.3d 907 (2018), petition filed July 23, Day v. Oregon Commission on Judicial Fitness and Disability, №18–112. The petition asks the Court to decide whether Justice Vance’s constitutional rights were violated both procedurally and substantively, and raises the contention that judges have a constitutional right to refuse to perform same-sex marriages, despite the Supreme Court’s ruling that same-sex couples have a fundamental right to marry as well as to equal protection of the law. The last paper to be filed was a reply by Judge Vance’s lawyers to the Commission’s brief opposing the Petition, on September 7. The Freedom of Conscience Defense Fund moved for leave to file an amicus brief in support of the Petition. Judge Day is represented by James Bopp, Jr., and other members of his Terre Haute, Indiana law firm. Mr. Bopp is a frequent advocate in opposition to LGBT rights.
There are several other controversies brewing in the lower courts that could rise to the level of Supreme Court petitions during the October 2018 Term (which runs through June 2019).
Following on its Masterpiece Cakeshop decision on June 4, the Court vacated a decision by the Washington State Supreme Court against a florist who had refused to provide floral decorations for a same-sex wedding and sent it back to that Court for reconsideration in light of the Masterpiece ruling. This is one of several cases pending in the lower courts, some rising to the court of appeals or state supreme court level, raising the question of religious freedom exemptions from compliance with anti-discrimination laws. The Supreme Court’s evasion of the underlying issue in Masterpiece means that the issue will come back to the Supreme Court, possibly this term, especially as some lower courts have already seized upon language in Justice Kennedy’s opinion observing that the Court has never recognized a broad religious exercise exemption from complying with anti-discrimination laws. Cases are pending concerning wedding cakes, wedding invitations, and wedding videos. And, in a different arena, as reported elsewhere in this issue of Law Notes, the Court recently denied a request from Catholic authorities in Philadelphia to temporarily block the City suspending referrals of children to a Catholic adoption agency that refuses to deal with same-sex couples seeking to adopt, in violation of a City public accommodations ordinance that covers sexual orientation. This kind of issue could also rise to the Supreme Court, depending how lower court litigation works out.
Litigation continues over a claim by some Houston Republicans that the City is not obligated to provide equal benefits to the same-sex spouses of Houston employees. The case is pending before a state trial judge after the Texas Supreme Court, in a blatant misinterpretation of the Obergefell decision, held that the U.S. Supreme Court had not necessarily decided that issue; “blatant” because the Obergefell opinion specifically mentioned insurance as one of the important reasons why same-sex couples had a strong interest in being able to marry, making the right to marry a fundamental right. Insurance was mentioned as part of a list of reasons, another listed being “birth certificates,” and the Supreme Court specifically quoted from that list in Pavan v. Smith, 137 S.Ct. 1075, the 2017 case in which it reversed the Arkansas Supreme Court, rejecting that court’s opinion that Obergefell did not decide the question whether same-sex parents had a right to be listed on birth certificates. Pavan was decided just days before the Texas Supreme Court issued its obtuse and clearly politically-motivated decision in Pidgeon v. Turner! One need not guess too hard at the political motivation. Texas Supreme Court justices are elected, and that court was deluged with communications of protest and pressure from the state’s top elected Republican officials after an earlier announcement that the court was declining to review the Texas Court of Appeals’ decision in this case, which had found Obergefell and the 5th Circuit Court of Appeals’ subsequent marriage equality ruling, DeLeon, to be controlling on the issue.
Before long the Court will likely take up the question whether transgender public school students have a right under Title IX of the Education Amendments of 1972 and the Equal Protection Clause to use restroom and locker room facilities consistent with their gender identity. The Court granted a certiorari petition in Gavin Grimm’s case from Virginia and scheduled argument to take place during the October 2016 Term, but the Trump Administration’s withdrawal of the Obama Administration’s interpretation of Title IX persuaded the Court to cancel the argument and send the case back to the 4th Circuit for reconsideration, since the 4th Circuit’s ruling had deferred to the on the Obama Administration’s interpretation in reversing the trial court and reviving Grimm’s claim. The 4th Circuit sent the case back to the district court, where the school district argued that it was moot because Grimm had graduated. But Grimm continues to battle the district’s policy as an alumnus. The district court has since refused to dismiss a revised version of the lawsuit brought by Grimm. This is one issue as to which there is not a significant split of lower court authority, but the issue continues to rage, school districts continue to discriminate against transgender students, the U.S. Departments of Education and Justice in the Trump Administration have reversed the Obama Administration’s position that sex discrimination laws protect transgender people, and religious litigation groups such as ADF continue to generate lawsuits, representing parents and students who oppose school district policies that allow transgender students to use the desired facilities. The issue is not yet dead, and it may work its way to the Court.
Trump’s transgender military ban, announced in a tweet in July 2017 and still in abeyance due to injunctions issued by judges from four different federal district courts, which three circuit courts having jurisdiction over the four district courts (D.C., 4th, 9th) have refused to stay, could also bring the issue of transgender rights to the Supreme Court. Since the district courts have denied motions to dismiss the legal challenges to the announced policy, the cases are now in their discovery phase, where claims of privilege asserted on behalf of the President and the Defense Department by attorneys from the Justice Department are the current point of contention, as reported in detail elsewhere in this issue of Law Notes. It is possible that the first question to rise to the Supreme Court would concern discovery rather than the merits, since the Justice Department is vigorously contesting the plaintiffs’ demand to answer such key questions as: Who are “my generals and military experts” that Trump claimed in his tweet to have “consulted” before announcing this policy? What is the basis for the claims asserted in memoranda issued by Trump and Secretary Mattis, based on a “report” produced by individuals whose names are undisclosed, that transgender individuals are not fit, as a class, to serve in the military? What role, if any, did conservative anti-gay think tanks play in producing that report, which strikingly resembles articles published by their associates and employees? So far, after striking out in two circuit courts in its efforts to get the preliminary injunctions “stayed” to allow the policy to go into effect, the Administration has not asked the Supreme Court to issue a stay, which would take 5 votes. If/once Kavanaugh is confirmed, giving them their hoped-for solid 5-vote majority on the Court, they might try this route.