March 18, 2016 at 5:13 pm EDT | by Chris Johnson
Garland rebuffed gay plaintiffs in 4 cases
Merrick Garland, gay news, Washington Blade

U.S. Supreme Court nominee Merrick Garland ruled against gay plaintiffs in at least four cases.

Many LGBT groups have joined President Obama in calling for the U.S. Senate to consider the nomination of Merrick Garland to the U.S. Supreme Court, but a look at the recently announced nominee’s record reveals he joined in several rulings against the interests of LGBT parties who sought his aid before the federal judiciary.

A Washington Blade investigation into Garland’s record as a chief judge on the U.S. Circuit Court for the D.C. Circuit found his LGBT-related cases are few in number and lacking in magnitude, but in at least four cases Garland joined rulings against gay plaintiffs or self-proclaimed gay advocates.

One lawsuit was filed by an Ohio-based radio station professing to serve a gay audience; another by a sailor discharged from the Navy after being accused of sexual assault against three other shipmates; another by gay rights protesters seeking to sue law enforcement officials for spraying a chemical deterrent on them during former President George W. Bush’s inaugural parade; and another by an inmate jailed for threatening the president who said he was at risk in his place of incarceration because he’s gay. (Keen News Service first reported the first three in this list after Obama announced the Garland nomination.)

The Blade could find no rulings written by Garland himself pertaining to LGBT people, only opinions written by other judges that he joined. Since his tenure on the bench starting in 1997, Garland was never asked to rule on major LGBT rights issues, such as the constitutionality of state sodomy bans, state prohibitions on same-sex marriage or the Defense of Marriage Act.

Although the Supreme Court has already issued its milestone ruling in favor same-sex marriage, Garland’s record on LGBT-related litigation may be of note to LGBT advocates seeking justice under the law in other matters. Such litigation could decide the constitutionality of HIV criminalization laws, whether the right to religious freedom includes the ability to deny services to LGBT people and whether LGBT people are covered under the gender provisions of current civil rights laws in cases of discrimination in employment or housing.

In 2001, Garland was on a three-judge panel adjudicating a complaint from Grid Radio, an unlicensed low-power radio station in Cleveland, Ohio, professing to serve “gay men and women and the arts community.” The Federal Communications Commission told Jerry Szoka, operator of the station, to cease broadcasting and pay an ancillary $11,000 forfeiture because Grid Radio was operating without a license.

Szoka contended he never sought a license because the FCC at the time had a ban on microbroadcasting, which would have prohibited a low-power station like Grid Radio from operating. The FCC order, Szoka contended, was unenforceable, because the agency’s microbroadcasting ban contravened federal law and the First Amendment, and because the forfeiture was unreasonable, excessive and beyond his ability to pay.

In a Feb. 8, 2002 decision, Garland and Senior Circuit Judge Stephen Williams joined the opinion of Judge David Tatel rejecting Szoka’s claims and affirming the FCC order against him.

“Absent a demonstration that the low-power ban was indisputably unlawful or unconstitutional, the Commission had no obligation to reconsider the ban in the context of an enforcement proceeding against a single unlicensed operator,” the decision says. “Moreover, the forfeiture is reasonable under the circumstances of this case, and the operator waived his inability-to-pay claim.”

In 2003, Garland as part of the same three-judge panel heard an appeal of Jim Turner, a petty officer who served in the Navy for seven years before the service expelled him with an “other than honorable” discharge after three shipmates accused him of sexual assault.

Turner — who petitioned the Navy secretary to reverse the decision, but was rebuffed — argued the commanding officer investigating the charges abused his discretion by proceeding against him under Article 15, which he said is reserved for minor offenses, and by asking him and other shipmates if they were gay, which would have been in violation of the enforcement of “Don’t Ask, Don’t Tell.”

Even though the Board of Corrections of Naval Records found error on procedural points in the discharge and lack of sufficient corroboration, Garland joined Williams in an April 15, 2003, decision that upheld a district court ruling rejecting Turner’s claims.

“Chief Petty Officer Clanahan, who conducted the investigation at Captain Frank’s request, at one point asked Seaman Maurer whether he was homosexual,” the decision says. “Turner says that this — and the coercive conditions of the interview — violated that portion of the ‘Don’t Ask, Don’t Tell’ regulations that precludes asking members of the armed forces ‘their sexual orientation.’ Assuming the question was a violation and the regulations are enforceable, Turner’s claim still fails. There is little reason to believe that the error (if such it was) affected the ADB or Article 15 proceedings.”

In 2004, Garland was part of another three-judge panel adjudicating a lawsuit filed by the International Action Center, which billed itself as “an unincorporated political association opposed to racism, sexism, oppression of lesbians, gays, bisexuals and transgendered people, war and militarism and the program of the Bush administration,” as well as supporters Elizabeth Ayer and Lowell T. Fletcher.

According to their complaint, Ayer and Fletcher on the day of Bush’s 2001 inaugural parade were “engaged in only lawful, peaceful activity” at the Navy Memorial on Pennsylvania Avenue when officers with the D.C. Metropolitan Police Department “without justification, struck [them]…and sprayed a chemical agent into [their] eyes and faces at close range.” Additionally, Ayer and Fletcher alleged the police struck and sprayed other demonstrators while other uniformed and non-uniformed police officers watched and did nothing.

The plaintiffs sought to hold the officers’ supervisors personally liable for money damages for those injuries, which was allowed by the district court overseeing on the basis that the supervisors had a duty to train their subordinates to prevent alleged misconduct under the First and Fourth Amendments.

But in an April 16, 2004, decision, Garland joined U.S. Circuit Judge Harry Edwards and then-U.S. Circuit Judge John Roberts (now chief justice of the U.S. Supreme Court) in reversing the lower court decision, remanding with instructions to affirm qualified immunity for the supervisors.

“We hold that absent an allegation that the MPD supervisors had actual or constructive knowledge of past transgressions or that the supervisors were responsible for or aware of ‘clearly deficient’ training, the supervisors did not violate any constitutional right through inaction or failure to supervise,” the decision says. “Having found no constitutional violation … , ‘there is no necessity for further inquiries concerning qualified immunity.'”

In 2013, Garland was part of another three-judge panel hearing a petition from Jeremy Pinson, a gay federal prisoner serving a 20-year sentence for threatening the president, knowingly and willfully making a false statement to a U.S. marshal and mailing threatening communications. According to the decision, Pinson “made good use of the federal courts during his time in prison, having filed more than 100 civil actions and appeals across the nation.”

In the case before Garland and other judges, Pinson sought a fee waiver for challenging his incarceration in the special management unit at the Federal Correctional Institution in Talladega, Ala. Because special management units house gang-affiliated and other disruptive inmates who present unique security concerns, Pinson alleged being placed in such conditions would put him at substantial risk because he’s gay and a former gang member.

But in an Aug. 5, 2014 decision, Garland joined U.S. Circuit Judge Sri Srinavasan (who was thought to be on Obama’s short list as a potential nominee for the current Supreme Court vacancy) and U.S. Circuit Judge Thelton Eugene Henderson in denying Pinson relief. The decision is based on Pinson running afoul of the Prison Litigation Reform Act’s three-strikes provision for a fee-waiver and not being able to show under the precedent of Mitchell v. Federal Bureau of Prisons qualification for the imminent danger exception.

“Like Mitchell, Pinson’s claim rests on the BOP’s decision to designate him to a particular facility notwithstanding its reputation as a dangerous place for inmates possessing certain characteristics — here, as a rival gang-member and homosexual, and in Mitchell, as a government ‘snitch,'” the decision says. “The Mitchell court found such contentions insufficient to satisfy the imminent danger exception, even though Mitchell, unlike Pinson, further alleged that he had already been attacked by the time he filed his complaint. We see no ground to reach a different conclusion here.”

Despite these rulings, LGBT advocates who saw the rulings say they don’t think they indicate an anti-LGBT bias or predict Garland would rule against LGBT people in cases before the high court.

Paul Smith, a partner at the D.C.-based law firm Jenner & Block who successfully litigated against state sodomy bans before the Supreme Court in 2003, was unconcerned about the decisions.

“I know Judge Garland well and he doesn’t have the slightest anti-gay bias,” Smith said. “He is about as fair and unbiased a person as I know. Nothing in these cases causes me concerns about his ability to rule fairly and on the law in cases involving LGBT people or claims.”

Brad Sears, executive director of the Williams Institute of the University of California, Los Angeles, said on his Facebook page the decisions were “decided on grounds that don’t relate to sexual orientation or gender identity” and don’t reveal his understanding of LGBT issues.

“In short, I haven’t found an LGBT-related opinion authored by Garland, and while he signed on to four that went against the LGBT-related party, none of them were decided in a way that sheds light on how he approaches sexual orientation or gender identity related legal issue[s],” Sears wrote.

Sarah Warbelow, the Human Rights Campaign’s legal director, said her organization is giving Garland the benefit of the doubt based on Obama choosing him.

“President Obama has a history of appointing pro-equality Supreme Court Justices,” Warbelo said. “HRC officially endorsed Justices Sonia Sotomayor and Elena Kagan following their Senate nomination hearings and a thorough examination of their records. We are confident that in Judge Garland we will find another associate justice to the Supreme Court who stands on the side of fairness and equality.”

Warbelow said her organization is reviewing Garland’s record and, if the Senate despite objections from Republicans holds a confirmation hearing, will afterward make an official endorsement decision.

“Our legal and government affairs teams are currently in the process of examining Judge Garland’s extensive record in detail, and it is our hope that the Senate will eventually fulfill their constitutional responsibility to grant Merrick Garland a swift and fair hearing so that we can learn more about his judicial philosophy and record,” Warbelow said.

Jon Davidson, legal director for Lambda Legal, said the important thing now is for the Senate to move toward consideration of Garland so the nominee can be more fully examined.

“We are in the midst of reviewing Judge Garland’s writings and likely will be issuing a comprehensive statement at a later date, including questions we think Judge Garland should be asked at a confirmation hearing,” Davidson said. “And that is the important point to make now, that the U.S. Senate should do its job and give Judge Garland’s nomination the serious and responsible consideration it deserves. We don’t think it is appropriate to offer our views in what would necessarily be a piecemeal fashion at this early date.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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