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U.S. Appellate Court rules against anti-LGBTQ website designer

In the 2-1 ruling, the court said Colorado had a compelling interest in protecting the “dignity interests” of members of marginalized groups.

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U.S. 10th Circuit Court of Appeals, Byron White Courthouse Denver Colorado (Photo Credit - Library of Congress Collections)

DENVER – A three judge panel of the U.S. 10th Circuit Court of Appeals on Monday ruled against a Lakewood, Colorado based web designer who sued to challenge the state’s anti-discrimination law, claiming that it would force her to design wedding websites for same-sex couples which violated her ‘Christian’ beliefs.

Lorie Smith, represented by anti-LGBTQ legal group, the Alliance Defending Freedom, (ADF)- listed by the Southern Poverty Law Center as an anti-LGBTQ extremist hate group, claimed in court filings that the Colorado law violated Smith’s freedom of speech and freedom of religious expression.

In the 2-1 ruling, the panel said Colorado had a compelling interest in protecting the “dignity interests” of members of marginalized groups through its law.

The law that is being challenged by Smith and ADF is the same one that was argued before the U.S. Supreme Court and decided in 2018, Masterpiece Cakeshop, Ltd., et al., Petitioners v. Colorado Civil Rights Commission, et al., in the case of another Lakewood business and individual, Jack Phillips.

The high court in the Masterpiece Bakeshop case narrowly ruled in a 7–2 decision, the Colorado Civil Rights Commission had not acted employing religious neutrality. In the decision Associate Justice Anthony Kennedy, writing for the court majority on Monday, said it is “unexceptional” that Colorado law “can protect gay persons in acquiring products and services on the same terms and conditions that are offered to other members of the public,” but at the same time, “the law must be applied in a manner that is neutral toward religion.”

The high court however did not rule on the broader intersection of anti-discrimination laws, free exercise of religion, and freedom of speech, and whether a business can invoke religious objections to refuse service to LGBTQ people.

In a statement the ADF’s senior counsel, John Bursch noted that the group would appeal Monday’s ruling. “The government should never force creative professionals to promote a message or cause with which they disagree. That is quintessential free speech and artistic freedom,” Bursch said.

“This really isn’t about cake or websites or flowers,” Lambda Legal senior counsel Jennifer C. Pizer said in a statement. “It’s about protecting LGBTQ people and their families from being subjected to slammed doors, service refusals and public humiliation in countless places – from fertility clinics to funeral homes and everywhere in between.”

Lambda Legal, is a legal group that fights for the civil rights of LGBTQ people and had submitted a brief supporting the state’s anti-discrimination law in the case.

Colorado Solicitor General Eric Olson questioned whether Smith should even be allowed to challenge the law since she had not started offering wedding websites yet, the Associated Press reported.

But if she did, Olson said, her argument would mean she would refuse to create a website for a hypothetical same-sex couple named Alex and Taylor but agree to make the same one for an opposite-sex couple with the same names. He said that would be discrimination under the Colorado Anti-Discrimination Act, which prohibits discrimination on the basis of sexual orientation.

Judge Mark Beck Briscoe wrote in Monday’s majority opinion (303 Creative, et al. v. Elenis, et al.) that “we must also consider the grave harms caused when public accommodations discriminate on the basis of race, religion, sex, or sexual orientation. Combatting such discrimination is, like individual autonomy, `essential’ to our democratic ideals.”

In his dissent, Chief Judge Timothy Tymkovich wrote that “this case illustrates exactly why we have a First Amendment. Properly applied, the Constitution protects Ms. Smith from the government telling her what to say or do.”

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U.S. Federal Courts

Federal Judge tosses guidance in LGBTQ healthcare discrimination

He ruled the Biden administration wrongly interpreted a provision barring health care providers from discriminating against LGBTQ+ Americans

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The J. Marvin Jones Federal Building and Courthouse, Amarillo, TX (Photo Credit: U.S. Courts/GSA)

AMARILLO – U.S. District Judge Matthew Kacsmaryk ruled Friday the Biden administration had wrongly interpreted a provision of the Affordable Care Act (ACA), colloquially known as Obamacare, as barring health care providers from discriminating against LGBTQ+ Americans.

Kacsmaryk wrote the U.S. Supreme Court decision in Bostock v. Clayton County in which it held that “an employer who fires an individual merely for being gay or transgender violates Title VII.”  The High Court’s opinion states that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

The lawsuit was brought by two doctors represented by the America First Legal Foundation, set up by Stephen Miller, a former Trump White House official. The suit was filed after the U.S. Department of Health and Human Services issued a regulation in May 2021 outlying that its interpretation of Section 1557 of the ACA, which states that healthcare providers cannot discriminate on the basis of sex, extends to sexual orientation and gender identity.

Many observers and legal experts have opined that the Bostock decision, while affecting many other laws and expand equality for LGBTQ people, there were shortcomings in the application of the Bostock ruling.

Sharita Gruberg, currently the Vice President for Economic Justice at the National Partnership for Women & Families, wrote in August of 2020 as the Center for American Progress vice president for LGBTQI+ Research and Communications, outlining the shortcomings in Bostock when looking at a practical application for LGBTQ healthcare under Section 1557 of the ACA:

While Section 1557 of the ACA prohibits discrimination based on race, color, national origin, sex, age, or disability in covered health programs or activities, the statute’s text does not actually include any of these words. Instead, it refers to protected characteristics in other statutes: Title VI of the Civil Rights Act of 1964, which covers race, color, and national origin; the Age Discrimination Act of 1975; Section 794 of Title 29 of the U.S. Code, which covers disability; and Title IX of the Education Amendments Act of 1972, which covers sex.

As discussed above, since Title VII’s definition of sex informs the definition of sex in Title IX, it is clear that sexual orientation and gender identity discrimination are also prohibited under the ACA. As in the Title IX context, federal courts have consistently affirmed that the prohibition of sex discrimination in Section 1557 of the ACA prohibits gender identity discrimination.

In 2016, the Obama administration promulgated a rule clarifying that Section 1557 prohibited gender identity discrimination and sex stereotyping, which could include sexual orientation as well as discrimination based on pregnancy, false pregnancy, termination of pregnancy or recovery, childbirth, or related medical conditions.

This interpretation was quickly enjoined by Reed O’Connor, a conservative activist judge who has since ruled that the ACA as a whole is unconstitutional. Rather than defend the Obama administration’s interpretation of sex discrimination, the Trump administration elected to promulgate a new rule that not only erased the inclusive definition of sex discrimination but also eliminated sexual orientation and gender identity protections from a number of other regulations.

The administration also rolled back language access protections. Trump’s Department of Health and Human Services (HHS) posted its final rule four days after the Supreme Court’s decision in Bostock. The rule was slated to go into effect on August 18; however, a federal judge issued a preliminary injunction on August 17 finding that HHS’ position that sexual orientation and gender identity were not covered under Title IX was rejected by the Supreme Court in Bostock. As a result, the administration was blocked from rescinding the 2016 rule’s protections.

 Kacsmaryk, appointed to the federal bench by former President Trump, wrote that Congress, when adopting the law could have included “sexual orientation” or “gender identity” in the text, but “chose not to do so.” He noted that the ACA incorporated barring against discrimination “on the basis of sex” in Title IX- but specifically left out LGBTQ+ people.

Accordingly the judge wrote, the Supreme Court’s 6-3 conclusion that Title VII’s bar against sex discrimination covered LGBTQ workers did not lead to the same result.

“Title IX’s ordinary public meaning remains intact until changed by Congress, or perhaps the Supreme Court,” he wrote.

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U.S. Federal Courts

Military ban on enlistment by HIV+ people faces legal challenge

The DoD removed restrictions on deployment & stopped discharges of servicemembers who are HIV positive provided they are asymptomatic

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Reception day for the West Point's new cadets - The U.S. Military Academy class 2026 (U.S. Army Photography Unit)

ALEXANDRIA, Va. – Lambda Legal and a coalition of law firms and attorneys filed a lawsuit Thursday in a federal Virginia district court challenging the U.S. military’s prohibition of HIV-positive Americans from enlisting in the U.S. Armed Forces.

The legal challenge was filed on behalf of three individual plaintiffs and the Minority Veterans of America (MVA) in the U.S. District Court for the Eastern District of Virginia.

The action comes on the heels of the Department of Defense’s updates this summer to its policies concerning HIV positive servicemembers.

On June 7, the agency announced it would not restrict the deployability or ability to commission, nor discharge or separate any servicemembers based solely on their HIV-positive status, provided they are asymptomatic and have a “clinically confirmed undetectable viral load.”

“For years, the military has found it difficult to meet the recruitment and end-strength goals for an all-volunteer force,” Lambda Legal co-counsel Peter Perkowski, who is also the legal and policy director of MVA, said in a press release announcing the lawsuit.

“Given this reality, it is non-sensical for the nation’s largest employer to turn away healthy, fit, and fully capable recruits just because they have HIV,” Perkowski said. “A positive HIV status alone has no effect on a person’s ability to safely serve,” Kara Ingelhart, senior attorney at Lambda Legal, said in the press release. “Because HIV disproportionately impacts LGBTQ+ people and people of color, this discriminatory policy is not only outdated, but is also a serious equity issue that has a significant impact on communities who already face countless systemic barriers to accessing full life in America.”

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U.S. Federal Courts

White House vows to appeal ruling striking down student debt

Ruling comes from conservative Texas court and the administration’s appeal will be heard by the country’s most conservative appellate court

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U.S. District Court for the Northern District of Texas, Earle Cabell Federal Building (Photo Credit: U.S. Courts/GSA)

WASHINGTON – White House Press Secretary Karine Jean-Pierre released a statement Thursday night vowing to appeal the decision by a conservative federal district court in Texas that struck down the Biden-Harris administration’s student debt relief program.

President Joe Biden and his administration “are determined to help working and middle-class Americans get back on their feet, while our opponents – backed by extreme Republican special interests – sued to block millions of Americans from getting much-needed relief,” Jean-Pierre said in the statement.

Judge Mark T. Pittman, who was appointed by former president Donald Trump to serve on the U.S. District Court for the Northern District of Texas, ruled that the administration’s program was a usurpation of power that belonged in the hands of Congress.

Sixteen million Americans have already been approved for student debt relief. The Department of Education will hold onto their information, along with that which has been submitted by ten million other borrowers, pending a decision from the 5th Circuit Court of Appeals.

The appellate court is the country’s most conservative, and therefore is expected to be sympathetic to arguments that the administration’s program is an overreach of its legal authority.

The administration contends that Congress vested it with the authority to provide relief to student borrowers through the HEROES Act, which expands the Executive Branch’s powers during times of national emergency, such as the COVID-19 pandemic.

The Supreme Court has refused to hear challenges to Biden’s relief plan, and six conservative states have sued separately to stop implementation of the administration’s program. So, the ultimate outcome will probably remain unclear for the foreseeable future.

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U.S. Federal Courts

Federal court rules beauty pageant can bar transwomen

Writing in dissent, 9th Circuit Judge Susan P. Graber, slammed the majority for its “radical departure” from “well-settled” legal rules

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Anita Green, a trans beauty pageant competitor (Instagram/ anitanoellegreen)

PORTLAND, Or.- A three-judge panel of the 9th U.S. Circuit Court of Appeals in a 2-1 decision ruled this week that a beauty pageant can bar transgender women competitors. Upholding an earlier ruling from the U. S. District Court of Oregon in the case of Green v. Miss United States of America, LLC, the court found that that requiring the pageant to be inclusive of trans contestants would be a violation of its First Amendment rights to free speech.

Anita Green, a trans woman, who has competed in multiple beauty pageants including Miss Montana and Miss Earth, filed an application to participate in the Miss USA pageant, but was rejected on the basis that the pageant’s rules specified that only “natural born females” can compete.

Green had applied in Oregon and filed the federal suit based on her allegation that the pageant’s rejection was a violation of the Oregon Public Accommodations Act’s (“OPAA”) prohibition against discrimination on the basis of gender identity. In its ruling the U. S. District Court found the pageant’s First Amendment right to free expression and free association eclipsed the OPAA.

In the 58-page opinion, 9th U.S. Circuit Judge Lawrence VanDyke, appointed to the federal bench by former President Trump, compared and contrasted the pageant’s requirement to that of Broadway composer and producer Lin-Manuel Miranda required protocols in casting his musical ‘Hamilton.’  

Law & Crime noted:

The musical utilizes hip-hop music and lyrics to detail the rise and fall of Founding Father Alexander Hamilton and has garnered widespread attention from the public and critics alike,” VanDyke wrote and also attributed “some of the musical’s popularity” to “its casting choices, namely the decision to cast the predominately white Founding Fathers with actors of color.”

VanDyke noted that creator Miranda’s casting decision “was widely—though not universally—applauded,” and included a footnote quoting an op-ed written by a University of Michigan student that questioned the messaging behind the choice of actors. Blogger Camille Moore wrote that despite Miranda’s aim to cast the Pulitzer Prize-winning show to reflect “America today,” the casting missed the mark in that in that it failed to acknowledge that even today, powerful figures would be rich, white men.

The judge continued, explaining that Hamilton’s mainly non-white cast makes an important statement about American history that is “integral” to the show’s message.

The ruling also noted “it is commonly understood that beauty pageants are generally designed to express the “ideal vision of American womanhood.” The panel held that the Pageant’s message cannot be divorced from the Pageant’s selection and evaluation of contestants. The Pageant would not be able to communicate “the celebration of biological women” if it were forced to allow Green to participate.

The First Amendment affords the Pageant the ability to voice this message and to enforce its “natural born female” rule.

The judges concluded that forcing the Pageant to accept Green as a participant would fundamentally alter the Pageant’s expressive message in direct violation of the First Amendment. The judge’ also pointed out that contrary to Green’s argument, it does not matter that the Pageant is a for-profit entity that engages in commerce. That alone is not enough to strip the Pageant of its First Amendment rights.

The ruling also noted that the application of the OPAA in this context lacks the compelling state interest. The State of Oregon has offered only “eliminating discrimination against LGBTQ individuals” as a compelling interest, but this broad formulation alone cannot suffice. The courts have a long-standing hesitation to enforce anti-discrimination statutes in the speech context. Application of the anti-discrimination law to the Pageant here would necessarily impact its message. Applying the proper Supreme Court guidance in this case required prohibiting the application of the OPAA to eliminate the Pageant’s “natural born female” rule.

Writing in dissent, 9th Circuit Judge Susan P. Graber, appointed to the Federal bench by former President Bill Clinton slammed the majority for its “radical departure” from “well-settled” legal rules.

Law & Crime reported:

Under the doctrine of “constitutional avoidance,” Garber explained that the court should have first determined whether OPAA even applied to Green’s claim before diving into First Amendment analysis. Graber reprimanded the majority for its “insistence in reaching an unnecessary constitutional issue,” and reminded her fellow judges that constitutional avoidance is, and has long been, a bedrock judicial principle.

Graber then used VanDyke’s proffered examples in a logical assault on the majority’s ruling: given the nature of performances, a solid argument could be made that OPAA does not even apply to beauty pageants. Therefore, VanDyke’s Hamilton analogy does more to undermine the majority’s ruling than to support it.

Graber wrote:

“Choosing actors for a production of Hamilton, making a sequel to an 80s cinema classic, and assembling a troupe of Beyonce’s backup dancers are intensely selective processes that cannot be said to be open to the public as contemplated by the OPAA. It is highly unlikely that the OPAA would apply to the selection of performers for those roles.”

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U.S. Federal Courts

Federal charges of assault & attempted kidnapping in Pelosi case

Paul Pelosi later described to police that he had been asleep when DePape, whom he had never seen before, entered his bedroom

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U.S. Federal Building in San Francisco, California (Photo credit: T. Bayer)

SAN FRANCISCO – The 42-year-old suspect in the break-in and assault of U.S. House Speaker Nancy Pelosi’s husband Paul, was formally charged Monday with assault and attempted kidnapping in violation of federal law.

Richmond, California resident David Wayne DePape, 42, was arrested on Friday inside the Pelosi residence in Pacific Heights by San Francisco Police Department (SFPD) police officers responding to a 911 call from Paul Pelosi.

Pelosi was admitted to Zuckerberg San Francisco General Hospital for his injuries, the hospital confirmed. Pelosi underwent what officials described as successful surgery to repair a skull fracture and injuries to his right arm and hands after he was seriously wounded in the attack.

The House Speaker arrived in San Francisco late Friday aboard a U.S. Air Force VIP transport jet and published a “Dear colleague” letter this past weekend thanking fellow members of Congress for their support and expressing gratitude for the “quick response” of law enforcement and emergency services personnel. 

U.S. Attorney Stephanie M. Hinds for the Northern District of California, Special Agent in Charge Robert K. Tripp of the FBI San Francisco Field Office, and Chief J. Thomas Manger of the U.S. Capitol Police made the announcement. Hinds’  Special Prosecutions Section of the U.S. Attorney’s Office for the Northern District of California is prosecuting the case.

According to the complaint, David Wayne DePape, 42, of Richmond, was arrested on Friday inside the Pelosi residence by San Francisco Police Department (SFPD) police officers responding to a 911 call from Paul Pelosi, husband of U.S. House of Representatives Speaker Nancy Pelosi. Paul Pelosi later described to police that he had been asleep when DePape, whom he had never seen before, entered his bedroom looking for Nancy Pelosi.

According to the complaint, minutes after the 911 call, two police officers responded to the Pelosi residence where they encountered Paul Pelosi and DePape struggling over a hammer. Officers told the men to drop the hammer, and DePape allegedly gained control of the hammer and swung it, striking Pelosi in the head. Officers immediately restrained DePape, while Pelosi appeared to be unconscious on the ground. As set forth in the complaint, once DePape was restrained, officers secured a roll of tape, white rope, a second hammer, a pair of rubber and cloth gloves, and zip ties from the crime scene, where officers also observed a broken glass door to the back porch.   

DePape is charged with one count of assault of an immediate family member of a United States official with the intent to retaliate against the official on account of the performance of official duties, which carries a maximum sentence of 30 years in prison. DePape is also charged with one count of attempted kidnapping of a United States official on account of the performance of official duties, which carries a maximum sentence of 20 years in prison.

The FBI San Francisco Field Office, the U.S. Capitol Police, and the San Francisco Police Department are continuing to investigate the case.

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U.S. Federal Courts

2nd Federal Judge dismisses a suit re: Florida ‘Don’t Say Gay’ law

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Jennifer and Matt Cousins are the parents of four children: 14-year-old N.C., 12-year-old S.C., 8-year-old M.C. and 6-year-old P.C. Jen and Matt’s 12-year-old, S.C., came out as non-binary. (Photo Credit: Lambda Legal)

ORLANDO – U.S. District Judge Wendy Berger dismissed a challenge to Florida’s notorious ‘Parental Rights in Education law, HB 1557’ that went into effect this past July 1, 2022. The preliminary injunction sought by clients of Lambda Legal, the Southern Poverty Law Center (SPLC), Southern Legal Counsel (SLC) and outside counsel Baker McKenzie would have prevented school districts from implementing the law while the law is challenged in court. 

“The court’s decision is wrong on the law and disrespectful to LGBTQ+ families and students. HB 1557 suppresses wholesale the speech and identities of LGBTQ+ students and their families,” said Kell Olson, Staff Attorney at Lambda Legal. “It sends a message of shame and stigma that has no place in schools and puts LGBTQ+ students and families at risk. The students and families at the heart of this case have experienced more bullying in the months since the law went into effect than ever before in their lives, but the court dismissed their experiences of bullying as ‘a fact of life.’ The court’s decision defies decades of precedent establishing schools’ constitutional obligations to protect student speech, and to protect students from targeted bullying and harassment based on who they are.” 

This is the second suit brought to block the law’s implementation. U.S. District Court Judge Allen Cothrel Winsor dismissed a lawsuit challenging the law earlier this month on the grounds that the plaintiffs lacked legal standing to challenge the law. 

That suit dismissed by Winsor alleged, in part, that the law violated First Amendment and due-process rights. It reads, “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.”

“Our plaintiffs, and other LGBTQ+ students and families throughout Florida, have experienced real harms caused by this law, which were not acknowledged by the Court,” said Simone Chriss, Director of Transgender Rights Initiative at Southern Legal Counsel. “This fight is not over – it has just begun. Florida’s LGBTQ+ students and families deserve better, and we will press forward to protect their rights.”

“The court’s order ignores the real harm this unconstitutional law causes to our plaintiffs, and LGBTQ+ students and families across Florida, every day that it remains in effect,” said Scott McCoy, Interim Deputy Legal Director at the Southern Poverty Law Center. “The callous disregard towards increased bullying based on gender identity and the removal of anti-bullying guidance shows exactly why we must keep fighting.”

“We very much look forward to continuing the fight against this unjust and dangerous law,” said Angela Vigil, Partner and Executive Director of Pro Bono Practice at Baker McKenzie LLP. “We plan to show the court and the state the harm caused to children and families by this law is destructive in so many ways for education, community, families and, most importantly, children.”  

Judges Berger and Winsor were both nominated to the federal bench by then-President Trump and were endorsed by the right wing Federalist society.

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