In Taking Offense v. State of California, the Supreme Court today rejects a First Amendment constitutional challenge to a part of 2017 legislation that prohibits staff at a long-term care facility from “[w]illfully and repeatedly fail[ing] to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.” The provision — Health and Safety Code section 1439.51(a)(5) — is one piece of the Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights enacted in Senate Bill 219. The court so ruled even though it found that the plaintiff lacks statutory taxpayer standing to sue and it didn’t decide whether there was standing on any other basis.
There are three opinions, covering over 100 pages. All seven justices agree that the plaintiff doesn’t have statutory taxpayer standing and none of the justices express agreement with the challenge, but two of them want to postpone deciding the constitutional issue until a case is brought by someone with standing. The 68-page majority opinion is by Chief Justice Patricia Guerrero, who also issues a 36-page concurrence.
The court (the Chief Justice and Justices Carol Corrigan, Joshua Groban, Kelli Evans, and pro tem, recently retired Justice Martin Jenkins) holds “the present version of [Code of Civil Procedure] section 526a, as amended in 2018, does not allow [taxpayer] standing to sue wholly state officers or entities.” (Link added.) In a mea culpa, it also finds to be “well taken” criticism of its previous “interpretation” of the pre-2018 section 526a as supporting taxpayer suits against the state. Nonetheless, it continues, “under the unusual circumstances of this case, and as we have done in analogous settings in the past,” the absence of standing “does not impair our jurisdiction to rule on the merits of the claim.” Not so ruling, the court says, would maintain “a cloud over the constitutionality of the statute” and “would impair the administration of justice, leaving the State uncertain whether it is free to enforce the statute, and those who view the statute as unconstitutional but wish to engage in conduct that violates it would be uncertain whether they are free to do so.”
The standing holding is limited to finding no statutory taxpayer standing to sue the state. The majority doesn’t decide “whether the doctrine of common law taxpayer standing continues to exist” or “whether plaintiff has standing pursuant to the common law public interest doctrine.”
On the merits, emphasizing “the narrow context in which the challenged statute operates” (that is, “long-term care residents’ right to be free from discrimination in a setting in which they constitute a ‘captive audience’ in what has become, in effect, each resident’s home”), the court concludes the legislation is “a regulation of discriminatory conduct that incidentally affects speech,” which thus is “not subject to First Amendment scrutiny,” but would satisfy an “intermediate scrutiny” review in any event. The prohibition “is carefully calibrated,” the court reasons, “and does not restrict long-term care facilities’ staff from expressing their views about gender to anyone (including a resident) in any otherwise lawful manner other than by misgendering a resident — and even then, the prohibition is limited to willful, repeated, knowing acts done because of a legally protected characteristic.”
The Chief Justice’s concurring opinion asserts in detail that the anti-misgendering provision not only isn’t subject to First Amendment scrutiny and would pass intermediate scrutiny, but also would survive a strict scrutiny review. Justices Corrigan and Groban sign on. But Justices Evans and Jenkins do not. Nor do Justices Goodwin Liu and Leondra Kruger.
In their separate concurrence, authored by Justice Kruger, Justices Kruger and Liu say the Court of Appeal decision striking down the anti-misgendering statute should be reversed solely because it “was based on a mistaken interpretation of [the statute].” Instead, they would “leav[e] any further consideration of constitutional questions until a litigant has established its standing to sue.” The limited reversal, they argue, “would suffice to lift the cloud cast by the appellate court’s decision.”
The court reverses a published opinion (with two separate concurrences) of the Third District Court of Appeal.
