5th Circuit Allows Anti-LGBT Law to Go Into Effect

Emboldened by the election of Donald Trump, a number of Republican controlled state legislatures rushed to pass falsely named "religious freedom" laws that would allow open discrimination against LGBT citizens.  Backward hell hole, Mississippi was among the first states to pass such a bill (a less hideous bill in Virginia was vetoed by Democrat Governor Terry McAuliffe).   Now, the U.S. Circuit Court of Appeals for the 5th Circuit on Thursday ruled that Mississippi can start enforcing a law that will let merchants and government employees cite religious beliefs to deny services to same-sex couples.  The ruling reversed the District Court ruling that had blocked the law before it could take effect last July.  How the Court believes that openly targeting a minority for mistreatment will pass muster under Supreme Court rulings such as Romer v.Evans is baffling.  There has never been much reason to visit Mississippi, now there is even less reason to do so.  To my "friends" and acquaintances who have said that I and other taxpaying LGBT citizens have nothing to fear under Trump/the GOP, my comment is this: when are you going to pull your head out of your ass and wake up to reality? Blogger friend Joe Jervis looks at this disturbing development.  Here are are excerpts:

A federal appeals court says Mississippi can start enforcing a law that will let merchants and government employees cite religious beliefs to deny services to same-sex couples. The 5th U.S. Circuit Court of Appeals on Thursday reversed a judge’s decision that had blocked the law before it could take effect last July.

U.S. District Judge Carlton Reeves had ruled that the law unconstitutionally establishes preferred beliefs and creates unequal treatment for LGBT people. Republican Gov. Phil Bryant and other supporters say the law protects beliefs that marriage can be between only a man and a woman, and that a person’s gender is determined at birth and cannot be changed.

Via press release from Lambda Legal:

Today, the U.S. Fifth Circuit Court of Appeals reversed the injunction against Mississippi House Bill 1523, the discriminatory anti-LGBT legislation challenged in Barber v. Bryant, the federal lawsuit brought by Mississippi civil rights attorney Robert McDuff, the Mississippi Center for Justice and Lambda Legal.  The advocates will continue to fight this discriminatory law. 

Overruling the lower court decision, a three-judge panel of the Fifth Circuit denied that LGBT Mississippians are subject to imminent discrimination by HB 1523 and ordered the block to the law lifted because the plaintiffs—a group of ministers, LGBT residents, community leaders and activists—lack standing since they cannot claim a specific harm caused by the law that has yet to go into effect.

“We had to put guards in front of our church after the bill initially passed because there was a truck with a swastika parked across the street and just this week the Christian Knights of the KKK distributed flyers throughout the Hattiesburg area. Today’s ruling leaves us more exposed, so we will have to be more vigilant than ever before to protect our church, our families and our dignity,” said Brandiilyne Mangum-Dear, Barber plaintiff.

Note: government employees can now discriminate.  So much for equality under the law.  The Christofascists want nothing less than an established religion in violation of the U.S. Constitution.  Political whores in the GOP are only too happy to prostitute themselves to these foul people. 

5th Circuit Strikes Down Texas Voter ID Law

The Voting Rights Act of 1965 turned 50 this week and as a gift to those who believe in the right to vote for voting age all citizens the United States Court of Appeals struck down Texas' anti-minority voter ID law, one of the most reactionary in the country.  The law had been pushed through the GOP controlled Texas legislature under the usual GOP pretense of preventing voter fraud - which had not been documented to be a problem - while aiming to restrict minority voting and voting by younger voters who tend to vote Democrat.  Rather than push policies and an agenda attractive to all, the GOP prefers to disenfranchise all those other than aging angry whites voters longing for the days of Jim Crow and a world of unchallenged white privilege.  The New York Times looks at the ruling.  Here are excerpts:

A federal appeals panel ruled Wednesday that a strict voter identification law in Texas discriminated against blacks and Hispanics and violated the Voting Rights Act of 1965 — a decision that election experts called an important step toward defining the reach of the landmark law.

The case is one of a few across the country that are being closely watched in legal circles after a 2013 Supreme Court decision that blocked the voting act’s most potent enforcement tool, federal oversight of election laws in numerous states, including Texas, with histories of racial discrimination.

While the federal act still bans laws that suppress minority voting, it has been uncertain exactly what kinds of measures cross the legal line since that Supreme Court ruling.

The Texas ID law is one of the strictest of its kind in the country. It requires voters to bring a government-issued photo ID to the polls. Accepted forms of identification include a driver’s license, a United States passport, a concealed-handgun license and an election identification certificate issued by the State Department of Public Safety.

The plaintiffs, including individual voters, civil rights groups and the Department of Justice, said it was discriminatory because a far greater share of poor people and minorities do not have these forms of identification and lack easy access to birth certificates or other documents needed to obtain them.

Student identifications, voter registration cards and utility bills are not considered acceptable proof of identity.

Although the appeals court upheld the finding of discriminatory effect, the three-judge panel said the lower court must re-examine its conclusion that Texas acted with discriminatory purpose.

Texas could appeal to the full Fifth Circuit Court of Appeals in New Orleans or the United States Supreme Court.

In a 147-page opinion issued in the fall of 2014 after a two-week trial, a district court judge, Nelva Gonzales Ramos, said the law “creates an unconstitutional burden on the right to vote” and blocked its enforcement.

She noted the lack of evidence that voter fraud was a threat and cited expert testimony that about 600,000 Texans, mainly poor, black and Hispanic, lacked the newly required IDs and often faced obstacles in obtaining them.

The evidence that the law violated Section 2 was relatively strong, said Justin Levitt, an elections expert at Loyola Law School in Los Angeles, because the racial difference in impact was striking.

Another case, in North Carolina, involves what some say are more subtle effects, and could provide a more telling test of the Voting Rights Act.

There, civil rights advocates and the Department of Justice are challenging cutbacks in a range of measures used disproportionately by minorities, including early voting and same-day registration and voting.

A second case in Texas, involving a challenge to the state’s redistricting, could also set an important legal precedent.

Voter disenfranchisement and gerrymandered districts are the GOP's favored tools to cling to power in the face of a changing America where the hate and bigotry and embrace of ignorance that the GOP are peddling is less and less popular.  

5th Circuit Slams Hold Outs on Gay Marriage

Christofacists and their self-prostituting allies in the Republican Party in Texas, Mississippi and Louisiana have been dragging their feet and making excuses to not commence issuing marriage licenses to same sex couples.  Yesterday, the 5th Circuit reaffirmed the binding nature of the Supreme Court's marriage ruling last week and made it clear that those who continue to hold out are doing so at their own legal risk.  It was but one more defeat for Christofascists who want the special right to ignore court ruling and laws that they don't like.  The Houston Chronicle looks at the 5th Circuit's ruling.  Here are story highlights:

The 5th Circuit Court of Appeals on Wednesday affirmed the U.S. Supreme Court's ruling legalizing same-sex marriage nationwide, a final procedural move that closes the book on a long legal battle over Texas' ban on gay unions.

The U.S. Supreme Court on Friday legalized gay marriage nationwide, but a separate legal challenge filed against Texas' ban still was pending in a federal appeals court. While most county clerks in Texas already were issuing marriage licenses to same-sex couples, there was a small chance state officials could have chosen to exploit the case to shield the last few hold-outs refusing to comply.

In a June 30 brief to the court, however, Texas Solicitor General Scott Keller said in light of the Supreme Court ruling it should uphold a lower court's ruling striking down Texas' gay marriage ban.

On Wednesday, the court acknowledged the high court's ruling and told the district court judge to formally rule in favor of the four plaintiffs, a lesbian couple and a gay couple who had challenged Texas' ban on same-sex unions.

Attorney General Ken Paxton on Sunday issued guidance to clerks saying some could refuse to issue licenses to same-sex couples if they believe their religion prohibits them from doing so. County attorneys and civil rights groups blasted that advice, saying it would be illegal for state employees required by law to issue licenses to discriminate based on sexual orientation, and have said it represents a need to remain vigilant in the fight for gay rights.

One can only hope contempt of court orders (and threats of jail time) will be issued against Clerk's refusing to perform their legal duties. 

Gay Couples Lawsuit Against United Airlines to Go to Trial

Back on August 26, 2012, I wrote here about the travesty done to a young gay professional couple from Norfolk (who are as a disclaimer close personal friends) seemingly by employees of United/Continental Airlines at George Bush Intercontinental Airport in Houston, Texas.  As I recited at the time, in response to demand letters, the leadership of the airline basically "flipped the bird" to these innocent victims and victimized them yet again - even though United/Continental Airlines claims to be LGBT friendly through their involvement with the National Gay and Lesbian Chamber of Commerce.  In my view - and as the saying goes - actions speak louder than words.  And Continental's actions have spoken volumes.  So much so, that the husband and I have made a point to NOT fly on United/Continental since 2012 (our upcoming trip to Paris will be on American Airlines).

For those who are newer readers, the tape on the bag pictured above clearly reads "Continental Airlines" and tellingly, the zipper on the bag was undamaged (I saw the luggage bag personally), so that there was no legitimate basis for taping up the bag while unzipped.  The actions against this couple by United/Continental employees were both shocking and clearly done to invade the couple's privacy and to inflict intentional emotional distress as the baggage made its way around the luggage carousel at Norfolk International Airport to the couple's horror.

 

Due to the airline's shocking attitude, the couple filed a lawsuit in Harris County, Texas District Court, in a lawsuit is styled Bridgeman, et al v. United Continental Holdings, Inc. and Continental Airlines, Inc., on August 24, 2012.  Since that date, the case history has been like something out of a John Grisham novel with the huge corporation trying any and all means to wear down the individual plaintiffs.  United Continental first removed the case to federal court (the case is Case 4:12-cv-02848) and argued that Article 17(1) or Article 17(2) of the Montreal Convention - which governs international flights - applied and that the couple's claims are preempted.  The U.S. District Court for the Southern District of Texas accepted this argument and dismissed the case.  Our friends appealed and the U.S. Court of Appeals reversed the dismissal in November, 2013, and remanded the case back to the District Court.   As Jonathan Turley noted on his blog, this was an important (and negative) ruling for the airline United/Continental and the airline industry:

The United States Court of Appeals for the Fifth Circuit has handed down an important ruling in favor of two gay men who were the targets of a foul joke by employees of United Continental airlines. 

What is most striking about this case is not only the refusal of United Continental to settle the case but the sweeping argument the airlines tried to make to strip passengers of the ability to seek damages for such outrageous and disturbing conduct by airlines.

The court found that the convention did not apply under Article 17(1) because this injury was not suffered on the flight or as part of exiting or disembarking. Thus, it remained subject to state law. On Article 17(2), the court ruled:

The alleged misconduct in this case simply does not relate to any damage to Plaintiffs’ duffel bag, which they admit is “just fine” and undamaged; rather, Plaintiffs seek a remedy for the way in which their bag was utilized to inflict personal injury. Accordingly, we decline to shoehorn Plaintiffs’ claims into the substantive scope of Article 17(2) merely because a bag is central to their factual basis. Instead, we reach our conclusion based on a natural reading of Article 17(2)’s text

The claims are therefore not preempted by the convention.  United Continental in the meantime showed that, once again, airlines treat passengers as voiceless, rightless living luggage. If they had prevailed, passengers would have been barred from seeking relief in state courts for even the most egregious conduct by airline employees.

Fast forward another year and a half and United/Continental has suffered a major blow.  After countless depositions and motions and briefs, the U.S. District Court for the Southern District of Texas has denied United/Continental's motion for summary judgment.  The order was entered on April 29, 2015 and is now available on pacer for subscribers.This means that the case will go to trial and that there will be a public airing of some of the airline's, in my view, outrageous arguments and defenses.  For the life of me, I do NOT understand why the airline has not made a serious settlement offer.  It has already spent a huge sum on legal fees and settling would have avoided the bad precedent now set by the 5th Circuit ruling and continued bad publicity.

Stay tuned for more coverage as the matter goes to trial. 

5th Circuit Seems Poised to Strike Down Gay Marriage Bans

This past week the U.S. Court of Appeals for the Fifth Circuit heard gay marriage ruling appeals from Texas, Louisiana, and Mississippi.  From what observers at oral argument report, it sounds as if the majority of the Court panel hearing the case is likely to rule that the bans are unconstitutional.  If such is the case, it is certainly sweet to envisage gay marriages taking place in Mississippi, home of the vile Traditional Values Coalition.  A piece at Towleroad looks at the questions posed by the Court and the ridiculous and non-creditable arguments put forth by the states to justify the bans rather than admit that they were motivated by anti-gay animus.  Here are highlights:

There are several great summaries out there about what happened yesterday at the Fifth Circuit, which heard marriage equality appeals from Texas, Louisiana, and Mississippi. Among others, I recommend the summaries from Chris Johnson at the Washington Blade and Chris Geidner at Buzzfeed. I would like to go one step deeper. I have listened to the audio from the oral argument (as you can too, here). As with other oral arguments, I find the most insightful indication of how a judge is leaning is not the number of questions asked or to which lawyer he asks more, but the language and tone of those questions. I found that especially true with Judge Higginbotham. . . .

On all the metrics, it looks like marriage equality will win the day at the Fifth Circuit.

Questions Asked To Lawyers. This metric is based on the notion that appellate court judges tend to ask more questions to the side of the argument they are inclined to oppose. That makes some sense: you ask questions because you are skeptical. As a related point, the side peppered with more questions presumably has the tougher case to make, which makes it more likely to lose.

Judge Higginbotham did not ask a single question to Camilla Taylor, the Lambda Legal attorney representing the plaintiffs in the Louisiana case. However, during a single 20 minute span during Louisiana's argument in favor of its ban, Judge Higginbotham went toe to two with Louisiana's attorney, Kyle Duncan, sentence for sentence. The attorney only barely spoke for more minutes than Judge Higginbotham during that time. Robbie Kaplan, the Paul Weiss attorney who represented Edie Windsor, also faced no questioning for the first part of her argument.

Judges Arguing With Each Other. This metric gets closer to evaluating a judge's views because it's not about the number of questions or statements, but to whom they are directed and the substance of that back-and-forth. This might be helpful in evaluating which way swing judges are leaning, if they talk at all.

Judge Higginbotham spoke a lot, and when he was arguing with anyone other than the lawyers from the states (see above), he was arguing with Judge Smith.

Judge Smith (right) spent his question time on two things: Baker v. Nelson, the 1971 case that ended in a simple, one-line denial from the Supreme Court that said that challenges to state refusals to recognize gay marriage bring up no federal issues, and the level of scrutiny for the bans. We've heard the Baker argument before: it was not only rejected, but laughed out of court by Judge Posner and others.

[B]oth Judge Higginbotham and Judge Graves, an Obama appointee who has a great voice for radio (per the audio of argument), dismissed it. Judge Graves did it with aplomb, suggesting that talking about a case from the 1970s (more than 40 years ago already) made him nostalgic for his afro and eight-tracks!

Judge Smith is a non-starter for marriage equality. He showed himself hostile to equality and, with all due respect, reason. He bore the brunt of Judge Higginbotham's judge-to-judge sparring, which may be an indication of where Judge Higginbotham is headed.

Tone and Language. This is a squishier metric because it doesn't count numbers, it looks at the language a judge uses.  . . . At the Fifth Circuit, you had a smattering of different language uses, but Judge Higginbotham and Judge Graves, the Obama appointee, used language that was considerably more modern and accepting of the equality of gay relationships. That is especially notable given that Judge Higginbotham is pushing 80 years old.

Now we have to wait for the ruling.

Will A Wave of Court of Appeals Rulings Turn the Tide on Same-Sex Marriage Bans?

With Friday's ruling in Michigan and the State of Michigan promising to appeal there are now or soon will be marriage equality cases on the dockets of the 4th, 5th, 6th, 9th and 10th Circuit Courts of Appeal.  As the New York Times reports, many legal experts expect that one or all of these Courts of Appeal will strike down state bans on same sex marriage.  The results of these rulings may well force the U.S.Supreme Court to resolve the issue once and for all.  Here are article highlights:

With a slew of cases barreling toward federal appeals courts, almost certainly including the decision Friday that overturned Michigan’s restrictive marriage amendment, the legal battle over same-sex marriage is entering a new and climactic phase. Decisions in the coming months will resonate beyond individual states across entire regions and may impel the Supreme Court to revisit the issue sooner than it wished. 

Legal experts say the country is entering what one called a “marriage spring” and predict that several of the circuit courts, which hold sway over a group of states, will rule that state laws limiting marriage to a man and a woman are unconstitutional.

Enforcement of decisions may well be delayed while the Supreme Court takes one or more of them for review, with a decision then possible by June 2015.

But if the Supreme Court demurs, those rulings will become law throughout those circuits, requiring many more states to join the 17 that have already authorized same-sex marriage.

“This is the penultimate act,” said Michael C. Dorf, a constitutional expert at Cornell University Law School, of the sudden wave of federal court hearings. It will start in Denver in April as the United States Court of Appeals for the 10th Circuit considers rulings that overturned marriage limits in Utah and Oklahoma.

Like many other legal scholars, Mr. Dorf predicts that same-sex marriage proponents will win many of the circuit-level decisions, which are generally handed down by three-judge panels.

Since June, when the Supreme Court required the federal government to recognize married same-sex couples and suggested that discriminatory laws were rooted in nothing but prejudice, rights advocates have won an uninterrupted series of decisions in federal district courts. Restrictive amendments or laws have been declared unconstitutional in Utah, Oklahoma, Virginia, Texas and Michigan, and partial decisions, requiring states to recognize out-of-state marriages, have been handed down in Kentucky, Ohio and Tennessee.

In addition to the Denver hearings next month, the Fourth Circuit, based in Richmond, will hear arguments in the Virginia case in May. These cases are likely to be decided by summer or fall.

In other regions, hearings have not yet been scheduled but are considered very likely this year in the Ninth Circuit, in San Francisco, regarding a 2012 decision that upheld Nevada’s restrictive law. They also could occur this year in the Fifth Circuit, in New Orleans, for the Texas case, and in the Sixth Circuit, in Cincinnati, for cases from Michigan, Ohio and Kentucky. 

Given the consistency of recent court decisions and the signals given by the Supreme Court in its ruling in June, many experts predict that some if not most of these circuit panels will uphold marriage rights for gay and lesbian couples. That could upend law in many conservative states.

The Supreme Court will be all but forced to decide if, as appears possible, different circuits reach clashing conclusions. The one most likely to decide against same-sex marriage, many experts say, is the Fifth Circuit, which will decide the Texas appeal. That circuit includes Mississippi and Louisiana, and the court is viewed as largely made up of conservative judges.

[M]ore than 50 challenges to marriage limits are working their way through lower federal courts and state courts. In the next three months, federal district courts will hear challenges in Idaho, Oregon and Pennsylvania, said Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders. 

If, despite recent signs, the Supreme Court finds no constitutional right to same-sex marriage, that could block such marriages in states like Utah and Virginia, where laws were overturned by federal courts. But it would not turn back the clock in the 17 states that adopted same-sex marriage on their own through legislation, ballot questions or state court decisions.

5th Circuit Reverses Dismissal of Gay Couple's Lawsuit Against United Airlines

As some readers will recall, back in August, 2012, a young professional gay couple filed a lawsuit against United/Continental Airlines in connection with an outrage done to them by employees of United/Continental Airlines at George Bush Intercontinental Airport in Houston, Texas.  Here are some highlights of the facts as laid out in the lawsuit:

On May 21, 2011, Plaintiff's a homosexual couple, were returning from vacation on a flight provided by Defendants United Continental Holdings, Inc., and Continental Airlines, Inc. (collectively referred to as "Continental") from Costa Rica to Norfolk, Virginia with a layover at George Bush Intercontinental Airport in Houston, Texas.  When Plaintiffs arrived at Houston, they retrieved their checked luggage, which was undisturbed at that time.  After going through Customs, Plaintiffs rechecked their bags, and proceeded to board their flight to Norfolk.  Upon arriving in Norfolk, Plaintiffs exited the aircraft and went to the baggage claim area.  Plaintiffs' bags were sent to the baggage carousel where Plaintiffs discovered to their horror, that a private sex toy had been removed from one of their bags, covered with a greasy foul-smelling substance, and taped prominently to the top of their bag.

The U.S. District Court for the Southern District of Texas opted to tax the lazy easy  way out and dismissed the lawsuit citing narrow provisions of the Montreal Convention, more formally known as the Convention for the Unification of Certain Rules for International Carriage by Air.  Today, a three judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed the District Court and remanded the case back for trial.  Here are excerpts from the 5th Circuit's ruling:

This appeal involves whether two airline travelers’ state-law claims for intentional infliction of emotional distress, invasion of privacy, and negligence in connection with the airline’s alleged placement of a sex toy on their baggage are preempted by Article 17(1) or Article 17(2) of the Montreal Convention. We hold that the plaintiffs’ claims are not preempted by either. Accordingly, we REVERSE the district court’s grant of the defendants’ motion to dismiss and REMAND for further proceedings.

Article 17 of the Montreal Convention contains two provisions relevant to this case: Article 17(1) imposes liability on carriers for injuries to passengers and Article 17(2) for damage to baggage. 2242 U.N.T.S. at 355. On appeal, Plaintiffs argue that their state-law claims do not fall within the scope of either provision. We agree and address each provision in turn.

Here, any connection between the alleged misconduct—the display of Plaintiffs’ bag in the baggage-claim area—and the “operations of embarking or disembarking” [within the scope of Article 17(1)] is tenuous at best.

Plaintiffs’ state-law claims rely on the fact that their bag was “in the charge of the carrier,” and it is clear that their bag was not destroyed or lost. Thus, whether Article 17(2) preempts Plaintiffs’ claims boils down to whether they seek a remedy for “damage to checked baggage.”

We hold that they do not and that, therefore, Article 17(2) does not preempt Plaintiffs’ state-law claims.

No doubt Continental will be less than pleased with today's ruling.  Now, the question is whether the airline will accept responsibility for the acts of its employees and do the right thing or continue to litigate the matter.   Either way, I will continue to avoid United Airlines when I travel based on the experiences of my good friends.