No Word Yet on DOMA, Prop 8 Supreme Court Petitions, As Other Appeals Rejected

The Supreme Court refused to consider an appeal of a lower court's ruling that Robert Pinter cannot sue the undercover NYPD officer who falsely arrested him on prostitution charges. | VADIM SHEPEL

The US Supreme Court’s fall 2012 term, which began on October 1, may go down in history for the largest number of important decisions on LGBT issues, but the court’s first actions were to clear the decks by denying review in two pending cases of gay interest — National Organization for Marriage v. McKee, a case involving public disclosure of donor names to anti-gay campaigns, and Pinter v. City of New York, which involves the 2008-2009 pattern of NYPD false arrests of gay men in video stores.

The high court has yet to announced whether or when it will hear appeals in several cases challenging the federal Defense of Marriage Act (DOMA), the Proposition 8 case from California, or a case about public employee domestic partnership benefits in Arizona.

The National Organization for Marriage (NOM), is, despite its grand-sounding name, a tiny organization, but it channels large sums of money from conservative donors into opposing marriage equality through political activity and litigation. NOM has brought a series of lawsuits challenging state disclosure laws that require organizations engaged in such activity to report the names of their donors and the amounts given to the authorities, which make the filings public.

In an earlier lawsuit, NOM challenged Maine’s requirement that it register as a political action committee because of its anti-same-sex-marriage political activity in that state.

The Boston-based First Circuit Court of Appeals rejected NOM’s argument that requiring it to register violated its constitutional rights. The case denied review by the high court on October 1 involved similar arguments, this time sparked by the state’s requirement that NOM disclose the names of donors to its efforts in a voter referendum in 2009 that overturned the marriage equality law, approved by the Legislature and signed by the governor, that had not yet gone into effect.

NOM argues that requiring disclosure of donors’ names will “chill” political speech and association, because some contributors will be scared away by the threat of retaliation and harm to their reputation.

Several years ago, in Doe v. Reed, the Court rejected a similar argument made on behalf of individuals who signed petitions to put a measure on the ballot in Washington State to overturn that state’s expansion of its domestic partnership law to include almost all of the rights of marriage. There, the high court ruled that disclosure of those who signed petitions would not violate their First Amendment rights unless they could show a specific serious threat that they would be harmed. The court sent that case back to the district court, which ruled that the plaintiffs failed to do so.

The First Circuit Court of Appeals took a similar position in NOM’s most recent lawsuit, filed against the Maine Commission on Governmental Ethics and Election Practices, the agency that receives and publishes online the names of donors to organizations that campaign for or against ballot measures.

“These provisions neither erect a barrier to political speech nor limit its quantity,” wrote the First Circuit judges. “Rather, they promote the dissemination of information about those who deliver and finance political speech, thereby encouraging efficient operation of the marketplace of ideas.”

Since the Supreme Court had rejected NOM’s previous appeals from similar rulings, its denial of review in this case was no surprise. The timing is important, however, since NOM is channeling big bucks into Maine this year to fight the affirmative marriage equality initiative that will be on the November 6 ballot. The identity of donors to that effort must be disclosed under the Maine statutes upheld in this case.

The other case denied review on October 1 affects the daily lives of gay men in New York City. Robert Pinter sued an undercover NYPD officer police officer, Commissioner Ray Kelly, Mayor Michael Bloomberg, and various other officials on claims of false arrest, malicious prosecution, malicious abuse of process, discriminatory treatment, and denial of the right to free association. Pinter was arrested just outside an adult video story on October 10, 2008, and brought up on spurious prostitution charges.

Pinter had been browsing videos at the Blue Door in the East Village, when a handsome young man began flirting with him and initiated conversation. Pinter, 52, was flattered by the attention, and when the young man asked, “What do you like to do,” Pinter mentioned oral sex.

The two men agreed to leave the store together, but as they were about to exit, the young man said he would pay Pinter $50 for oral sex. Pinter, astonished, said nothing to this, thinking to himself that “the possibility of really engaging in anything” with the man “was over.” Pinter continued walking with him and was soon surrounded by other undercover officers and arrested, which he found even more astonishing, since he had said nothing in response to the offer of money.

A few days after the arrest, Pinter pled guilty to a lesser charge of disorderly conduct and was sentenced to conditional discharge, five counseling sessions, and a mandatory fine. But he was unwilling to let things rest and spoke to Gay City News to publicize his case, which was similar to several other arrests recently made. It appeared that the city — in its campaign to close down more adult businesses that continued thriving despite efforts dating back more than a decade to zone them out — was pursuing these arrests as pretext to show these establishments fostered prostitution and should therefore be shut down. The campaign ultimately proved an embarrassment to the city, the NYPD, and Manhattan District Attorney’s Office, which dropped charges against some of the men arrested and did not oppose Pinter’s motion to vacate his guilty plea.

Pinter then filed this lawsuit, which the city moved to dismiss. US District Judge Shira Scheindlin denied the city’s motion, specifically rejecting its argument that the undercover police officer was shielded against personal liability by “qualified immunity,” a doctrine that absolves a government employee carrying out official duties from liability unless they reasonably could be expected to know their conduct was unconstitutional.

Under Pinter’s theory of the case, the undercover set him up with the prostitution charge without having probable cause to arrest him, all in furtherance of the NYPD’s agenda aimed at closing adult businesses. Scheindlin ruled that the false arrest claim, as well as Pinter’s other claims against higher officials and the city, should be allowed to move forward.

When the city appealed, the Second Circuit Court of Appeals reversed on the false arrest and malicious prosecution claims. According to that court, Pinter’s failure to openly reject the undercover’s offer of money and his continuing to walk with him after he made the offer could be construed by an undercover officer as assent to his proposition. The police officer, therefore, had at least “arguable probable cause” to arrest Pinter, the court found. The Second Circuit allowed the abuse of process and discrimination claims to go forward, and the question of whether the city itself should be held liable to Pinter remains alive.

Pinter’s attempt to get the Supreme Court to review the Second Circuit’s ruling has now been rejected, despite the extraordinary burden put on him, requiring that he tell a police officer that he was not interested in money he never asked for.

Most of the attention regarding LGBT rights at the beginning of the Supreme Court’s term, however, was not focused on these two cases. In California, the gay community is awaiting word on whether the high court will grant review in Hollingsworth v. Perry, the attempt by the Proponents of Proposition 8 to reverse the Ninth Circuit Court of Appeals’ decision that Proposition 8 violates the 14th Amendment’s Equal Protection Clause. If the Supreme Court denies review, the Ninth Circuit’s decision could go into effect soon thereafter, which means that California would resume issuing marriage licenses to same-sex couples.

Also awaiting further action by the Supreme Court is Arizona Republican Governor Jan Brewer’s quest to vacate a preliminary injunction requiring her state to continue providing domestic partnership benefits to same-sex partners of state employees.

Also pending are petitions in four cases challenging the federal definition of marriage, which excludes same-sex couples, adopted in 1996 in DOMA’s Section 3. The court will eventually rule on all of these petitions, but there is no firm time limit for it to do so. The solicitor general filed petitions in September asking the high court to review the district court rulings that struck down DOMA’s Section 3 in cases from New York and Connecticut, and had earlier supported a petition for review of the First Circuit Court of Appeals ruling regarding challenges from Massachusetts that also struck down Section 3.

The time for other parties to the cases to respond to the solicitor general’s petition will end on October 11, and the high court is likely to take up all the DOMA petitions, including one filed in a case from California as well, in November. Given that the First Circuit found DOMA unconstitutional, it is highly likely that the court will eventually agree to review one or more of the DOMA cases, but an announcement may not come until after the elections on November 6. There has been speculation that the Supreme Court may be waiting to see what happens in the four same-sex marriage ballot questions pending in Maine, Maryland, Minnesota, and Washington State before deciding what to do about these petitions.

 

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