Word is Out

In about six weeks, I'm going to be giving a talk about the state of gay rights to the Sacramento County Bar Association's Labor and Employment section. I'm very much looking forward to it. I've been musing on how to approach the topic in a way that will provide some new information to attorneys who probably think they know the legal standards for protected classes.

Then it hit me; even younger gay attorneys are not likely to know much about the history of the gay rights movement. And in light of Justice Scalia's unrepentant desire to stamp out nearly 50 years of civil rights progress (he calls homosexuality an "invented minority"), the history of our movement should be

Antinonus. Image credit LGBT History Project.

taught in every school. So, the issue is: making sure people know why supporting gay rights is so important.

Last night I re-watched the documentary Word is Out. Its a montage of stories about gay and lesbian people who came out of the closet in the United States as early as the 1950s and as late as the recording of the movie in 1978. One of our good friends, Rob Epstein, worked on this film as his very first project. I definitely recommend getting a copy and watching it. Its a time-capsule about life in our recent past.

But the story also demonstrates that sexual orientation is innate. A quality of our lives which is as mutable as our skin color or parentage. Each person describes the challenges he or she faced on coming out: rejection by loved ones, self loathing, and medieval "treatments" applied without advice or consent.

With each generation of gay and lesbian persons with the bravery and fortitude to come out of the closet, each successive generation can help the world see us for what we are: normal people who happen to love persons of the same sex.

Some day, there may not need to be a gay rights movement. That day is far from the present day. Only if we step up will our march toward real equality be achieved. We should not mistake this for what it is: a war. We've won so many battles over the years and have so many heroes; it can be easy to grow complacent. Alfred Kinsey, Stonewall, Harvey Milk, Bowers v. Hardwick (upholding sodomy laws), Lawrence v. Texas (recognizing that sodomy laws are unconstitutional), DOMA and its repeal, and the rising tide of gay marriage.

The fight is far from over. We need all the allies we can get!

Your,
Bear

After Marriage Equality in California

On August 4, 2010, Judge Vaughn Walker ruled on California's Proposition 8 — making an

Ancients had fewer problems with gay love.
Image credit Counterlight.

amendment to California's Constitution defining marriage as between opposite-sex couples only. The Court reasoned that:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.  Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Read Judge Walker's decision at Scribd (emphasis added).

Judge Walker applied the lowest standard to the problem: the rational basis standard. In governmental discrimination cases, the courts apply a range of such standards. The lowest standard asks whether the government has a "rational basis" for its actions. If it can be shown that the Government's actions are merely rational, then the law may be considered constitutional — a very low bar for the proponents of Proposition 8. What Judge Walker is saying here is that Proposition 8 isn't even rational, and doesn't deserve scrutiny under the more strident standards.

So, we all know that this decision was appealed in a complicated process throughout the federal court system (with some recourse to the state Supreme Court), and drove its way all the way up to the Supreme Court who, essentially, refused to rule on the constitutionality of Proposition 8.

You can find tons of analysis on the issue. For a jumping off point, see Equality on Trial's website and Proposition 8 timeline. But the questions are: by clearing the way for Judge Walker's decision to rule the case, did the Supreme Court essentially adopt its reasoning? Can Judge Walker's decision be used in subsequent case?

The answers to both questions are qualified "no" and "no." The Court's decision emphatically ruled that neither it nor the Court of Appeal had the authority to rule on Judge Walker's decision:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here. 

Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

Read the full opinion at the Supreme Court's website.

So the basic answer is no, the Supreme Court did not adopt Judge Walker's reasoning. Yet, Judge Walker's opinion stands as the rule of the case. So the qualification is that, in federal court, at least, Judge Walker's decision (with limitations) and certainly his reasoning may be used in both future marriage cases in other jurisdictions and may be applied in California gay-rights cases.

So, while the Supreme Court did not have our back with this decision, it did leave a gaping hole in the arguments of the bigots who seek to undermine our position in society. Its a war. We're winning. Reason and fairness will prevail.

Your Bear

Is Texting Protected Activity?

As reported, the Supreme Court heard oral argument in April, and just issued a unanimous decision in City of Ontario v. Quon. The gist of the decision is that the employee did not have a reasonable expectation of privacy in the pager, and thus the City was entitled to search it. However, the Court came to that conclusion on the narrowest possible grounds, preferring not to make determinations about future technologies today. From the SCOTUS Blog:

...the court unanimously held that it was constitutional to search a police officer’s text messages to a woman with whom he was having an affair. The warrantless search was not an unreasonable violation of the officer’s 4th Amendment privacy rights because it was motivated by legitimate work-related purposes ─ the City of Ontario, Calif. was trying to determine whether it needed to alter its wireless contract, which imposed fees after city employees exceeded character limits on text messages.

 The Court avoided a discussion whether the individual had a reasonable expectation of privacy in the equipment, by stating that the outcome would have been the same one way or the other. The court's justification for avoiding this analysis was that (1) it was not clear that initial analysis (whether the "operational realities" of the situation lowered the employee's expectation of privacy) was required, and (2) they wanted to avoid setting precedent on rapidly changing technologies and society's view regarding privacy. Therefore, to proceed, the Court began with these assumptions:

1. First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City;
2. [S]econd, petitioners’ review of the transcript constituted a search within the meaning of the Fourth Amendment; and
3. [T]hird, the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.

So the analysis proceeded to answer the limited question whether the city's search was reasonable. Generally, the court observed, warrantless searches are per se unreasonable under the Fourth Amendment. However, one exception is for the "special needs of the workplace":

...when conducted for a “noninvestigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’” the circumstances giving rise to the search.

The Court found that reviewing the messages to see if (1) the employee was not being forced to pay for excessive work-related messages, and (2) that the City was not being forced to pay for extensive personal communications were legitimate reasons to be reviewing the messages at all. And as to scope, "reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use" -- and thus not excessively intrusive.

Some ancillary points of note:

• Other reasons the investigation was not intrusive: (1) once the investigator had the information he needed, he redacted the content to include only what was necessary to show the extent of the personal messages, (2) it was conducted for only a two-month period, though even an audit of all months of overages would have been reasonable, (3) Quon was told not to expect messages sent on the system would be private.
• As to the Ninth Circuit's finding that the audit of all his pager messages for two months was not the least intrusive means, the Court held that there is no requirement for least intrusive means, and that an more intrusive search may yet be reasonable.
• As to the fact that the provider (Arch Wireless) violated the Stored Communications Act by turning over the messages, that fact does not lead to the conclusion that the City's search was unreasonable.

Supreme Court takes up Personal Texts on Employer's Device

In City of Ontario v. Quon, a SWAT team was issued pagers, and allowed to use them partially for personal reasons so long as the team-members paid for the personal use. This was in contradiction to standard procedure: employees had no privacy rights to information stored on city equipment. Parsing out the personal usage from the company usage turned out to be too time consuming for the lieutenant in charge, and the city ordered copies of text-messages to evaluate whether to increase the message plan.

The transcripts revealed long sexual exchanges between Quon and two women. Quon paid for the personal messages, but was reprimanded by his department. Quon sued for breach of privacy. The lower courts found that he had no reasonable expectation of privacy in the phone. Now, he's taken the case to the Supreme court on these issues:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers;
2. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer. (Source, SCOTUS Wiki.)

The Supreme Court heard oral argument in April on these issues (apparently stumbling around the technological challenges of the medium), and is expected to issue its decision sometime soon. Some take-aways from the case thus far include (thanks for the heads up):

1. An ISP's inspection of a company's communication system without notice likely violates the Stored Communications Act. Here, the Ninth Circuit Court of Appeals held that it did (issue not up for review here).
2. Preparing and applying use-policies for company owned equipment is vital. If one had been in place and applied properly, Quon's case never would have gotten this far.
3. Companies should ensure that only qualified individuals inform employees of use policies. The lieutenant should not have been in a position to modify the city's use policy here.

Contact me for a review of your "acceptable use" policy to make sure it covers email, pagers, smart phones, texting, mobile devices, and even use of Internet-based media.