In a lawsuit that received international attention, U.S. District Judge Alan B. Johnson dismissed a complaint last month against Kappa Kappa Gamma and the first openly transgender woman to join a sorority at the University of Wyoming.
Six members of the sorority had asked the judge to void Artemis Langford’s membership and to define “woman” to exclude transgender members in the future, among other things. However, Johnson ruled that the court cannot interfere with how the sorority determines its membership since it is a private, voluntary organization.
In the aftermath of the ruling, much of the postmortem has portrayed the court’s decision as political.
“We sought a determination in a court of law to look at the bylaws from a contractual and not political standpoint at all,” Cassie Craven, attorney for the plaintiffs, told Fox News last week. “Unfortunately, the judge converted this into a political issue.”
Four attorneys who reviewed the decision and spoke to WyoFile say otherwise.
“I think the court really tried to take this very charged and controversial issue and treat it as a legal issue,” said Melissa Alexander, a professor at UW College of Law, who teaches civil procedure. Practicing that kind of judicial restraint, Alexander said, is a helpful thing for the judiciary to do.
“[It means] not thinking about what they think or feel about these policies, but just asking, ‘What does the law provide? And what’s the proper role of the court in this dispute?’” she said.
In this case, there wasn’t a role for the court to play, Johnson, a native Wyomingite who was appointed to the bench in 1985 by President Ronald Reagan, concluded.
Freedom of expressive association
Johnson’s decision has several holdings, said Casper-based trial lawyer Nick Murdock. But the crux of the court’s decision, Murdock said, comes down to freedom of expressive association. Meaning, the government cannot interfere with how a private organization determines its membership due to First Amendment protections.
“Unless it violates some constitutional provision, then [the court] is not going to get involved,” Murdock said.
“Defining ‘woman’ is Kappa Kappa Gamma’s bedrock right as a private, voluntary organization — and one this Court may not invade,” Johnson wrote before applying the landmark decision by the U.S. Supreme Court in Boy Scouts of America v. Dale.
In 2000, the high court ruled that the scouting organization was exempt from New Jersey state law that bars anti-gay discrimination. The private organization had fired James Dale, an assistant scout master, when it found out he was gay. Overturning a lower court’s decision, the Supreme Court ruled that requiring the Boy Scouts to readmit Dale would violate the private organization’s First Amendment right of expressive association.
“While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government,” Chief Justice William Rehnquist wrote in the majority opinion.
“Dale controls today, interestingly with the shoe on the other foot,” Johnson wrote. “Whether excluding gay scoutmasters in Dale or including transgender women in Kappa, this Judge may not invade Kappa’s sacrosanct, associational right to engage in protected speech.”
“That’s how procedural justice works,” said Alexander, the UW professor. “The same rules that may lead to a result you don’t like in one case lead to a result you do in another.”
Messages in the footnotes
Anna Reeves Olson, a Casper-based attorney recently elected president of the Wyoming State Bar, also pointed to the freedom of association claim as the crux of the ruling.
“My impression was that it didn’t increase transgender rights,” Reeves Olson said. “It basically was saying nonprofits can rule their association without interference from the government.”
Reeves Olson said the 68 footnotes throughout the 41-page decision helped demonstrate Johnson’s rigor.
“I was impressed by how thorough he was and how careful he was in his decision,” she said. “I think he really probably thought about this long and hard.”
Wading through the 72-page complaint, the court had its work cut out for itself. As footnoted in the ruling, the lawsuit was “well-researched, yet meandering” and only devoted four and a half pages “to their actual claims.”
“If plaintiffs wish to amend their complaint, the court advises that they devote more than 6% of their complaint to their legal claims against defendants,” Johnson wrote. “It also counsels Plaintiffs to provide more factual detail, where feasible, as well as highlight the Defendant(s) it sues under each count and relevant state statutes and authority.
“Finally, if provided another opportunity to clarify unclear language within an amended complaint, Plaintiffs should not copy and paste their complaint in lieu of elaboration or legal research that assists the Court in disentangling their claims.”
Murdock, who clerked for Johnson decades ago as a young attorney, said that kind of guidance is consistent with the demeanor of the judge.
“He is a judge that tends to be overly kind,” Murdock said. “I think he’s very gently and very, very kindly, sort of saying, ‘You’re not acting the way you ought to as a lawyer,’” Murdock said.
Frank Chapman, another Casper-based attorney, said the judge’s remarks provide a clear guidance to the plaintiffs on how to refile.
“That order does not end the case,” Chapman said. “If the plaintiff wishes to proceed, I believe they may certainly do so.”
In the days following the ruling, Craven told Fox News she had “a litany of additional legal filings.” She did not respond to WyoFile’s request for comment.