The January edition of Law Notes is appropriately titled “Resist!”
Themes of resistance run through the legal developments of the past 30 days. The feature Law Notes article details how the Trump administration retreated after a series of 10 federal judges put a halt to the administration’s discriminatory transgender military ban. Other highlights include the US Supreme Court’s resistance to hearing several big LGBT rights cases, and how the Iowa Supreme Court is resisting homophobic jurors.
Professor Art Leonard of New York Law School is the chief editor and writer of LGBT Law Notes. Here are some summaries of the biggest of the latest.
Bowing to Reality, Trump Administration Responds to Six Court Losses by Dropping Appeals in Transgender Military Cases
President Donald Trump’s July 26 tweet announcing that “the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military,” as amplified by an August 25 Memorandum, encountered unanimous resistance from ten federal judges who had an opportunity to vote on it by Christmas. Nine of the ten were appointed by Presidents Bill Clinton and Barack Obama. One, U.S. District Judge Marvin Garbis in Baltimore (District of Maryland), was appointed by George H. W. Bush. As of December 31, the Trump policies had provoked four nationwide preliminary injunctions, and two federal circuit courts of appeals had
refused “emergency” motions by the government to stay the injunctions in connection with a January 1 date for allowing transgender individuals to enlist. On December 28 and December 29, the district judges in Maryland and Washington State also denied motions to stay their preliminary injunctions. Bowing to reality, the Justice Department announced on December 29 that it would withdraw an appeal to the 9th th Circuit of the third preliminary injunction ruling from Seattle and would not seek an “emergency” stay from the Supreme Court to avoid complying with a quadruple mandate to allow transgender individuals to begin enlisting in the U.S. military starting January 1, 2018.
SCOTUS Denies Certiorari Petition in Texas Employee Benefits Case.
On December 4 the U.S. Supreme Court rejected without explanation a petition from the City of Houston seeking review of the Texas Supreme Court’s June 30 ruling in Pidgeon v. Turner, which had cast doubt on whether the City was obligated under Obergefell v. Hodges, to provide same-sex spouses of Houston employees the same employee benefits offered to different-sex spouses. A decision by the Supreme Court to deny review of a case is not a ruling on the merits of the case. It means that there were not at least four members of the Court, the number required under the Court’s rules to grant a petition for review, who thought the Court should intervene in a lawsuit that is ongoing in the state trial court. The Court’s action should not be construed as a decision approving the Texas Supreme Court’s ruling. It is consistent with the Court’s tight control of its docket, under which the Court sharply limits the number and type of cases that it takes up for plenary review and rarely inserts itself into a case that has not received a final disposition in the lower courts.
Supreme Court Denies Review in Title VII Sexual Orientation Discrimination Case
The U.S. Supreme Court announced on December 11 that it will not review a decision by a three-judge panel of the 11th Circuit Court of Appeals, which ruled on March 10 that a lesbian formerly employed as a security guard at a Georgia hospital could not sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964. The full 11th Circuit denied a motion to reconsider the case on July 10, and Lambda Legal, representing plaintiff Jameka Evans, filed a petition with the Supreme Court seeking review on September 7. At the heart of Lambda’s petition was an urgent request to the Court to resolve a split among the lower federal courts and within the
federal government itself on the question whether Title VII, which bans employment discrimination because of sex by employers that have
at least 15 employees, can be interpreted to ban discrimination because of sexual orientation.
For whatever reason, the Court has put off deciding this issue, most likely for the remainder of the current Term. The last argument day on the Court’s calendar is April 25, and the last day for announcing decisions is June 25. Even if the 2nd Circuit promptly issues a decision in the Zarda case, the losing party would have a few months to file a petition for Supreme Court review, followed by a month for the winner filing papers responding to the Petition. Even if the Court then grants a petition for review, thus starting the clock running for filing merits briefs and amicus briefs, it is highly likely that once all these papers are submitted, it will be too late in the Term for the case to
be argued, so it would end up on the argument calendar for Fall 2018.
Oregon Court of Appeals Rules Against Baker in “Gay Wedding Cake” Case
A unanimous three-judge panel of the Court of Appeals of Oregon affirmed a ruling by the Oregon Bureau of Labor and Industries (BOLI) that Melissa and Aaron Klein, doing business as Sweetcakes by Melissa, violated the state’s public accommodations law by refusing to provide a wedding cake for Rachel and Laurel Bowman-Cryer. The ruling upheld an award of $135,000 in damages to complainants, rejecting the Kleins’ argument that this application of the state law to them violates their 1st st Amendment rights. However, the court overruled the BOLI’s determination that the Kleins’ public remarks in connection with this case had also violated a section of the law forbidding businesses to announce in advance that they will discriminate in the future. Judge Chris Garrett wrote for the panel. This case is, for all practical purposes, a virtual clone of the Colorado case, Masterpiece Cakeshop, which was argued at the U.S. Supreme Court on December 5, 2017.
To read the full summary of these cases and more, you can subscribe to Law Notes.
You can also listen to the latest Law Notes Podcast were Eric Lesh and Prof. Art Leonard discuss the hottest items from the latest edition.