January 7, 2021 at 8:56 am EST | by Chris Johnson
AG pick Garland may have to answer for rulings against LGBTQ plaintiffs
Chief Judge of the United States Court of Appeals for the District of Columbia Circuit Merrick Garland is Joe Biden’s pick for U.S. attorney general. (Photo public domain)

Merrick Garland, chosen by President-elect Joe Biden to become the next U.S. attorney general, may have to answer during his confirmation process for his record as a federal judge for a series of rulings against LGBTQ plaintiffs, including LGBTQ protesters who were seeking to sue over police brutality.

Biden formally announced on Thursday that Garland, who became a liberal martyr after Senate Republicans refused to allow him to go through the confirmation process in 2016 for a seat on the U.S. Supreme Court, would be his choice for attorney general. Other names that were in contention were Sally Yates and Sen. Doug Jones (D-Ala.), other media outlets reported the choice had been narrowed down to Garland and Jones.

Other names announced on Thursday were Obama alums Lisa Monaco as deputy attorney general and Vanita Gupta as associate attorney general. Kristen Clarke, former head of the Civil Rights bureau of the New York Department of Law, was named as assistant attorney general for the Justice Department’s Civil Rights Division.

Major media outlets reported and the Blade confirmed on Wednesday the choice to lead the U.S. Justice Department in the Biden administration would be Garland the day after the Democratic victory in the Georgia runoff, which gave Biden a boost with the promise of a Democratic Senate in his administration.

A look at Garland’s record as a federal judge, as the Blade reported upon his nomination to the Supreme Court in 2016, found his LGBTQ-related cases are few in number. However, in at least four cases, Garland joined rulings against gay plaintiffs or self-proclaimed LGBTQ advocates. The Blade didn’t immediately find any additional cases Garland adjudicated on LGBTQ issues since his nomination to the Supreme Court in 2016.

One decision that may have more relevance at a time of renewed scrutiny on policy brutality was against LGBTQ rights protesters seeking to sue law enforcement officials for spraying a chemical deterrent on them during former President George W. Bush’s inaugural parade.

In 2004, Garland was part of a 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 damages for those injuries, which was allowed by the district court overseeing the case 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.’”

Garland similarly joined the rulings against LGBTQ plaintiffs in other cases. One was filed by an Ohio-based radio station professing to serve an LGBTQ audience; another by a sailor discharged from the Navy after being accused of sexual assault against three other shipmates; 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.

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 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 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.

The Blade could find no rulings written by Garland himself pertaining to LGBTQ 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.

Garland, during remarks in Wilmington, Del., in the official announcement he was tapped to become attorney general, didn’t explicitly mention any of his past rulings, but after assault by Trump supporters on U.S. Capitol said racial justice and countering violent extremism would be his priorities.

“The essence of the rule of law is that like cases are treated alike,” Garland said. “That there not be one rule for Democrats, and another for Republicans, one rule for friends and other foes one rule for the powerful. Another for the powerless, one rule for the rich and another for the poor are different rules, depending upon one’s race or ethnicity, and the essence of its great corollary equal justice under law is that all citizens are protected in the exercise of their civil rights, those ideals have animated the Department of Justice, since the very moment of its inception.”

A Biden transition spokesperson had no comment Wednesday in response to Garland’s cases and whether the nominee would address them.

It remains to be seen whether LGBTQ groups will call on Garland to address the rulings in his confirmation process or refuse to support him otherwise. The Human Rights Campaign didn’t respond Wednesday to a request for comment on the decisions.

The LGBTQ legal group Lambda Legal, which in 2016 via former Legal Director Jon Davidson said “we need a Senate hearing to fully understand Judge Garland’s judicial philosophy” in light of Garland’s decisions, expressed an openness to Biden’s pick as attorney general in 2021.

“A deep commitment to civil rights is an essential qualification for anyone aspiring to the position of Attorney General of the United States,” Sharon McGowan, legal director for Lambda Legal, said in a statement to the Blade. “While Judge Garland does not have the kind of civil rights credentials that Vanita Gupta and Kristen Clarke do, we receive the news of his nomination with an open mind.  The role of a judge and the duties of an advocate are related, but distinct, and so we will be eager to hear more from Judge Garland about his vision for the Justice Department, and how he would exert his leadership as attorney general to ensure that the vindication of civil rights is among the Department’s highest priorities.” 

LaShawn Warren, executive vice president of government affairs at the Leadership Conference on Civil & Human Rights, said in a statement Thursday upon Garland’s nomination he’d uphold civil rights after years of neglect in the Trump administration.

“For the past four years, the top political leaders at the Justice Department have abdicated their duty to enforce the law and defend the interests of the United States,” Warren said. “Attorneys General Sessions and Barr have not only undermined morale, but they have also fallen in lock step with President Trump’s attempts to use the department to weaken civil rights laws and to further his personal agenda. Merrick Garland will lead the department in recommitting itself to the people and restore fidelity to the democratic values embedded in the Constitution and the laws of the United States.”

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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