April 24, 2017 – Arlene’s Flowers

Arlene’s Flowers and Washington State’s Commitment to Nondiscrimination

April 24, 2017 

State v. Arlene’s Flowers, Inc., 91615-2 (Unanimous Opinion –  McCloud author). This case involved the violation of the Washington Law Against Discrimination (WLAD) and the Consumer Protection Act (CPA) by a florist seeking to deny services for a same-sex wedding. I hope to blog about this case in more detail soon, but in the meantime, here are the basics.

•  The court upheld the WLAD and the CPA and rejected the attempt to create an exception based on religious belief. The court held that the refusal to provide flowers was discrimination based on sexual orientation, rejecting the argument that it was marital status discrimination (and therefor permissible).
• The florist attempted to argue (1) that it was marital status discrimination, not sexual orientation discrimination (and therefore okay for her to refuse services), (2) the WLAD already an express exemption to RCW 49.60.215 for “religious organization[s]” that object to providing public accommodations for same-sex weddings, thus the attempt to argue that WLAD didn’t cover marriages in secular public accommodations failed. The court also rejected the argument that the WLAD requires a balancing test between the rights of the protected class members (i.e., the public using the accommodation) and the business providing the service and the religious beliefs possibly held by the owner of the company.
• The court also rejected the claim that the WLAD violated her right to Free Speech or Religious Exercise. The court held that the “WLAD is a neutral, generally applicable law subject to rational basis review.  And the WLAD clearly meets that standard: it is rationally related to the government’s legitimate interest in ensuring equal access to public accommodations.” (Citations omitted)
• The court also noted that the WLAD withstands strict scrutiny review – rejecting the florist’s argument that the couple suffered no real harm:
• We emphatically reject [the argument the couple suffered no real harm.] We agree with Ingersoll and Freed that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” Br. of Resp’ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.
• Finding that Supreme Court has never held that a commercial enterprise, open to the general public, is an ‘”expressive association’” for purposes of First Amendment protections, the court rejected the florist’s Free Association claim.

What this means for the LGBTQ Community in Washington

We know our experience and the experiences of our friends, people continue to discriminate based on sexual orientation and gender identity despite the laws. The best way to get compliance is to complain to the people who can command enforcement. If you experience discrimination in a public accommodation, file a complaint. The Washington State Human Rights Commission is the agency where a complaint should be filed. The Office of the Attorney General also has a complaint process.

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13 Reasons Why is More About Bullying, Slut Shaming, and Rape Culture than Suicide

13 Reasons Why is More About Bullying, Slut Shaming, and Rape Culture than Suicide

May 5, 2017 jmullins  Discrimination in Education, Sexual Assualt

There is a Neflix show out there called 13 Reasons Why. Some people say this show is about suicide and feel that it is inappropriate (some schools are sending warning letters to parents about it). There are some great pieces about this and I encourage you to read them.

I come to show having survived the completed suicide of one of my best friends and I am publishing these thoughts on what would have been here 39th birthday. The night she killed herself she called me to see if I could hang out, but I was too worried about how I’d do in a law school class to go hang out – and I had no idea she was in so much pain. I would have skipped the bar exam itself if I had known that she was in so much pain. So it is not as if I come to 13 Reasons Why from a place of not knowing how devastating suicide is for those who survive.

The thing is, I don’t think 13 Reasons Why is about suicide. Yes, a girl does commit suicide and the tapes that she made explaining how she got to such a helpless point are the premise of the story, but her actual suicide is not the point of the show. What I think that this show gets so incredibly right, is how tough growing up can be, how kids so often do not talk about what’s impacting them, even to the best parents. I think this show talks honestly about those issues and does so better than anything I’ve seen before.

***Warning Spoiler Alerts***

In this series a young woman who is new to the school. A cute jock asks her out, and she has her first kiss. He takes a picture of her riding down a slide and there I think her skirt goes up and the guy’s “friend” sends the photo all around school, and a rumor starts that she is a slut.

Lesson One: There is a lot of slut shaming in our society and in our high schools. It can have an incredibly negative impact on girls. Also, it’s super scary to think moments that seem innocent or moments that you though were between the two of you can suddenly become wide spread. That’s why we know have laws about “Revenge Porn.”

She finds a few friends, but only a few. Her two closest friends basically ditch her (in part because they start dating each other, in part because they got more popular).

Lesson Two: High school can be achingly lonely. There’s even an app someone created now that is you can sit with us or something, but basically tries to tell people who feel lonely that there is a place where they may be welcome.

Then the geeky photographer at school stalks her, manages to get a picture of her and another friend (who happens to be female and very afraid she may be gay) experimenting with a kiss. This photo also gets widely circulated. While it isn’t completely clear who the girls are, a lot of people suspect she’s one of the girls. As an aside, the “good boy” who is the main narrator of this show flashes back to masturbating to this image – demonstrating a subtle and important point, even “good boys” get pulled into the hurtful drama and take advantage of it. Hannah (the girl who committed suicide) encourages everyone who reads the tape to throw a rock at the guy’s window. Instead the Clay (the “good boy”) takes a photo of this guy changing and shares it with the whole school. This kid, who was already widely unpopular, gets even more bullied and “pantsed” which the counselor at the school apparently doesn’t even understand the terminology, let alone acknowledge how harmful it is. Later, we also see that this kid is stockpiling weapons, with the implication being that he is planning on a school shooting.

Lesson Three: Vigilantism is not a good idea. I think we get some remorse from Clay about the impact that it had on this guy’s life, but I think he still feels perfectly justified in having done this because turnabout should be fair play right? Wrong. What the student did was absolutely wrong. But he’s also a student who is hurting and is widely unpopular and his only way to connect with people seems to be through photography. Vigilantism didn’t change what happened to Hannah and because actions have consequences, as the show is trying to show, what Clay did could end up being a large part of what tipped this kid over. Two wrongs, don’t make a right.

If there could be a true villain to the story, It is Bryce. Bryce is a super wealthy, super popular, super loved athlete. Basically a god at the school. And a serial rapist. He devalues women so much, he thinks of them as property and rapes his best friend’s girlfriend when she’s passed out drunk. Something Hannah witnesses and doesn’t do anything about, so she feels crappy about this. But then her boyfriend lies about what happens. Somehow she is was conscious enough to know something wrong happened, but not what happened and she starts drinking heavily – at school, skipping school, at home, always.

Then Bryce rapes Hannah in a hot tub. When Hannah tries to talk to her counselor about what happened he asks if she said no. As if the word “no” is the only way a person says “no.” Hannah tried to get away, tried to push him off, expressed a lack of consent and then went numb. He was much stronger and had her pinned down. This scene is powerful in that reminds me of how she committed suicide. While she is in the hot tub and he is raping her, we see her wrists being pinned down and scrapped against the side of the hot tub. This is the moment Hannah truly checks out and decides life isn’t worth living. So it’s interesting when she does the act, it is through cutting her wrists in a bathtub.

Lesson Four: Rape culture is a real thing. Jocks (and sometimes U.S. Presidents) think they should be immune from any kind of rape allegation because they are so popular any girl would want to have sex with them. When Clay is recording Bryce, trying to get a confession, there’s a line about how every girl at the high school wanted him. It’s pretty clear that he has likely raped far more than the two young women we know about.

Hannah makes one last ditch effort to try and get help before she kills herself – she turns to her high school guidance counselor. We see enough about his story to know he has a wife with young kids and his home life is likely distracting. While he’s meeting with Hannah his cell phone rings multiple times and this his direct phone line rings. I’m fairly certain if we got into the story there, something was happening at home that distracted him during the meeting with Hannah. But the reality is, Hannah was clearly feeling awful because of a rape he minimized and suggested was just behavior she now regretted. You couldn’t really get more warning signs than Hannah walked in there with and he didn’t do the basic things he should have done to plan for her safety.

Lesson Five: Schools perpetuate rape culture and would rather not rock the boat when a popular athlete is accused by a nobody girl. The school engages in a lot of idolized worship of their athletes and makes it clear they are the stars and the most important people at the school. There is a pretty widespread culture of sexual harassment at school and the school officials are oblivious to it. There’s a scene when Hannah’s mom goes into the bathroom and sees all sorts sexual messages that are also harassing, and the school had no idea. The school also appears to be oblivious to the sexual photos circulating during the school day. Schools are failing at keeping our students safe.

Perhaps one of the hardest things for parents watching 13 Reasons Why is understanding how little young adults confide in parents. Part of it is developmental hormones, lack of language to express what’s going on, being in a place where it seems like they are old enough to handle problems on their own. Not having any idea how their parents would react. But the parents depicted throughout much of this

Lesson Six: Our kids don’t talk about the things that are most upsetting to them. I believe part of the reason is not having the vocabulary. Emotional intelligence is hard. Part of it is also the normal development to adulthood and working on being your own person. Part of it is the fear of how what you say will be received. Will it be minimized? Will it be understood?

Conclusion

This is a show I’d watch with my 12 year old, and any child older than that. I’d use it as a tool to talk about the issues that happen in schools. I’d use it as an opening for difficult conversations. As for the issues of suicide, I’d use it for a reminder that she didn’t tell the people who cared about her most how much pain she was in. Her parents, her crush, they all would have supported her if they had known. We see how tortured the mom is by the fact she didn’t know about the pain her daughter was in and trying to learn and understand that pain. It’s important to turn to and be honest with those who we are closest with. Not to expect them to be able to take away the depression or the pain, but to help us access a network of resources and be a part of our mental health community.

For some great resources around suicide check out the American Foundation for Suicide Prevention: https://afsp.org/

6/26/17 – Marriage Equality Resistance Overruled

I previously published this blog as a part of my solo practice.

Maintaining a tradition of issuing casers impacting the LGBTQ community on June 26th, the U.S. Supreme Court issued its decision in Pavan v. Smith, upholding the requirement outlined in Obergefell (the case that banned marriage discrimination based on sexual orientation/gender) that birth and death certificates reflect the same-sex spouse.

The decision was a per curiam opinion, which means it was a decision of the court. Per curiam opinions are rare, but this is the second time since Obergrefell that the court has issued a per curiam opinion with regard to marriage and families. (See U.S. Supreme Court Reverses Alabama’s Decision to Invalidate a Georgia Adoption for a discussion of the other case.

The Paven case involved two lesbian couples in Arkansas. Both couples were married in another state and then had children in Arkansas, using anonymous sperm donations. Both parents filled out the paperwork to have their spouse listed as the other parent on the birth certificate. In both cases the Arkansas Department of Health issued certificates bearing only the birth mother’s name. The Arkansas Department of Health relied on the Arkansas law that stated that if the mother was married at the time of either conception or birth that the name of her husband shall be entered on the certificate as the father of the child.

The Arkansas Supreme Court upheld the gendered nature of the law as not violating Obergefell, asserting that the statute centered on the biological relationships, not on the marital relationships, and so it does not run afoul of Obergefell.  The U.S. Supreme Court disagreed finding that it denied marriage same-sex couples access to the “constellation of benefits that the Stat[e] ha[s] linked to marriage.”

The per curiam decision goes on to say that Obergefell proscribes such disparate treatment and the Obergefell explicitly referenced birth and death certificates. The court also noted that the statute is not about biology as married men are required to be on birth certificates of the children born of the marriage when ART is used. The decision of the court also noted that the adoption statute allows for birth certificates to be amended to reflect the adoptive, nonbiological parents, to be put on the birth certificat

Despite being a per curiam decision, Gorsuch, Thomas and Alito dissented. Gorsuch wrote, that he did not believe this case met the threshold of a per curiam decision because he did not think the issue was settled and stable, which are the types of case per curiam decisions are supposed to be reserved for.

 

This dissent repeated the state’s argument that the per curiam decision noted was false on its face – that biology was the reason for the gendered nature of the birth certificate law. The dissent comes up with the term, “biology based birth registration regime” perpetuating the facially false argument that the gendered nature of marriage and the birth certificate was related to biology. The per curiam opinion specifically discussed this, noting that when an opposite sex married couple uses ART to conceive the husband must be put on the birth certificate and that the adoption law places adopted parents on the birth certificate, so a birth certificate is clearly not about biological connections).

The dissent makes another argument that makes no sense when it stated,  the “State agrees, the female spouse of the birth mother must be listed on birth certificates too.” This whole case is based on the refusal to allow same-sex married spouses on the birth certificate, so it is unclear how the Gorsuch could make this claim. The only way that this claim would be accurate, would be if the state conceded the same-sex spouse should be on the birth certificate, which would make the biological argument pointless.

The dissent does what the conservative agenda often tries to do -create a path to achieving its desired goal to discriminate against the LGBTQ community. The dissent essentially invites states to create “biology based birth registration regimes.” This is clearly an anti-LGBTQ stance, but it is more than that it’s a push towards the idea of biological imparity connected with parenting. The impact of this approach would impact far more people than the LGBTQ community. Assisted reproduction is widely used in the U.S. by opposite-sex married couples, single women, and same-sex couples. According to a February 2014 CNN article, 61,740 babies born using some form of assisted reproduction technology in 2012. A 2015 Huffington Post article notes that there is a guestimate that is 15 years old that between 30,000 and 60,000 children are conceived using sperm or egg donors (the article also criticizes the lack of tracking of this information).

It is also important to connect this case to the other recent per curiam adoption case that said Alabama could not invalidate a Georgia adoption. One of the judges at the Alabama Supreme Court rallied on about the idea that adoption is merely an administrative tool and doesn’t create real parentage and the state can revoke parentage on a whim without meeting the constitutional requirements for biological (“real”) parents. This is perhaps one of the reasons, Chief Justice Roberts, who is an adoptive parent, did not join in the dissent. Adoptive parents understand biology is not the only way people become parents and biology does not somehow make more of a parent.

What does this decision mean for parents using Assisted Reproduction Technology, especially same-sex parents?

This decision makes it clear that if a state has provision that requires a married spouse to be placed on a birth certificate, any effort to restrict this to opposite sex couples will be deemed unconstitutional. The per curiam nature of the decision is an effort to send a strong message – states cannot rely on gendered laws to limit the benefits and responsibilities allocated through marriage. Arguably this would also apply to parentage statutes, statutes that typically say that a child born of a marriage is presumed the legal child of both parents in the marriage.

Nevertheless, the dissent, the long-term hostility to the LGBTQ community and families, and the backlash to marriage equality make it imperative for same-sex couples (and arguably any parent conceiving through ART where they may not be the biological parent to their child – including birth mothers who use an egg donor) to affirm their parentage through a court order. It is clear that there will be continued challenges to parentage and there are still courts and justices open to arguments that same-sex parents aren’t real parents, and more than that, that nonbiological parents are not real parents.

There are two types of court orders, the one that many advocates believe provide the strongest protection are second parent adoptions (more commonly referred to as stepparent adoptions). This is a process where the nonbiological parent would adopt their child. Adoptions are recognized nationally and internationally.

The other option is an order affirming parentage (these have various names). It is an court order that affirms that that the intended parents are the legal parents and would be entitled to enforcement under Full Faith and Credit. States that have adopted a version of the Uniform Parentage Act (UPA) may also have an ability to use the holding out provision for parents who were not married at the time of conception or birth and who have not done an adoption. Provided that the nonbiological parent has met the requirements of the state statute for the holding out provision, they could file a parentage action and affirm their parentage.

do a parentage confirmation than an adoption and it is relatively quick. You won’t get the same feel good ceremony many people experience when they do an adoption, it’s more like a somewhat administrative process to affirm your parentage.