Oct 29, 2015 – Weekly Capitol Update

APPEALS COURT SAYS GAYS CAN’T SUE OVER DISCRIMINATION

In a tenuous 2-1 decision, a panel of the Missouri Court of Appeals Western District on Oct. 27 ruled a gay man can’t sue his former employer over claims of workplace harassment and abuse relating to the man’s sexual orientation. However, one of the judges who supported the outcome didn’t endorse the other judge’s rationale that Missouri law doesn’t prohibit discrimination based on sexual orientation. Given the spilt among the three judges, an appeal to the Missouri Supreme Court seems likely.

The case was brought by James Pittman, who worked for seven years at Cook Paper Recycling Corp. before being fired in December 2011. Pittman claims the company president made discriminatory and obscene comments to him regarding his sexual orientation. A Jackson County judge dismissed the lawsuit, saying the Missouri Human Rights Act doesn’t prohibit discrimination on the basis of sexual orientation. Writing the principal opinion for the Court of Appeals, Judge James Welsh agreed.

“Unlike many other states, Missouri has not enacted legislation prohibiting discrimination against homosexuals by adding sexual orientation as a protected status in the Missouri Human Rights Act,” Welsh wrote. “If the Missouri legislature had desired to include sexual orientation in the Missouri Human Rights Act’s protections, it could have done so. No matter how compelling Pittman’s argument may be and no matter how sympathetic this court or the trial court may be to Pittman’s situation, we are bound by the state of the law as it currently exists. Without the legislative addition of ‘sexual orientation’ to the statutory list of protected statuses, the Missouri Human Rights Act does not prohibit discrimination based upon a person’s sexual orientation.”

In a one-sentencing concurring opinion, Judge Robert Clayton III simply wrote: “I respectfully and reluctantly concur in the opinion of Judge Welsh with respect to the result only.” Therefore, although a two-judge majority on the panel ruled against Pittman, there is no majority holding as to why.

In dissent, Judge Anthony Rex Gabbert said Welsh gives the MHRA an overly narrow reading by claiming the prohibition on discrimination on the basis of “sex” refers only gender-based discrimination. Gabbert said the term has many common definitions and since the MHRA doesn’t narrowly define “sex,” all relevant meanings – including sexual orientation – must be given effect.

“A person’s sex is always considered when taking a person’s sexual orientation into account. (E.g., homosexual, heterosexual),” Gabbert wrote. “Thus, under the spirit of the law, sexual discrimination claims based on sexual orientation are actionable claims under the Missouri Human Rights Act.”

 

STATE SUPREME COURT HEARS TRIO OF GUN RIGHTS CASES

The Missouri Supreme Court on Oct. 27 heard arguments in three separate cases in which lower-court judges in St. Louis ruled a constitutional amendment ratified by voters last allows only violent felons to be prohibited from possessing firearms, rendering unconstitutional a pre-existing state law that also makes it a crime for non-violent felons to have weapons. However, in three recent rulings in related cases, the high court indicated the law might not conflict with the new amendment, a point several judges made when hearing the latest cases.

Amendment 5, which Missouri voters ratified in August 2014 with 60.9 percent support, rewrote the gun-rights provision of the state constitution to specify that the right to keep and bear arms is “unalienable” and that any regulations must be subject to “strict scrutiny” – the highest level of judicial review in American courts. Amendment 5 also contained a provision specifying the General Assembly retains the power to bar convicted felons from possessing firearms, which some have interpreted as invalidating laws stripping non-violent felons of gun rights.

Ruling in two cases on Aug. 18, the Supreme Court said the felon-in-possession law meets the “strict scrutiny” standard, but didn’t determine whether Amendment 5 rendered it unconstitutional as applied to non-violent felons. However, the court on June 30 ruled that Amendment 5 made no substantive changes and merely restated existing constitutional protections. That ruling came in a lawsuit that argued the amendment’s ratification was invalid because of misleading ballot language that failed to inform voters of several alleged major constitutional changes.

During arguments in the recent cases, Judge Laura Denvir Stith pointed out a conundrum for those arguing the law banning non-violent felons from possessing firearms is unconstitutional under Amendment 5. If that is the case, Stith said, then the amendment made a substantive change to the constitution, meaning the court was wrong in its previous ruling and rendering Amendment 5 invalid. The court will rule in the three latest cases at a later date.

 

NIXON NAMES STATE BUILDING AFTER EX-GOV. TEASDALE

Gov. Jay Nixon on Oct. 27 issued an executive order naming an office building the state recently acquired in the Kansas City metro area after former Gov. Joseph Teasdale, a Democrat who served as governor from 1977 to 1981 and died in May 2014 at age 78. The former General Electric building is located at 8800 E. 63rd St. in Raytown.

The newly christened Joseph Patrick Teasdale State Office Building will house workers from the Department of Elementary and Secondary Education, the Department of Health and Senior Services, the Department of Mental Health, the Department of Public Safety and the Department of Social Services. State agencies will begin moving into the building in 2016.