City Desk

David Catania Smacks Down Anti-Gay-Marriage Law Prof

D.C. Wire just posted on this, but this document is just too good not to share more fully.

At-Large Councilmember David Catania today posted a letter to Robin Fretwell Wilson, law professor at Washington & Lee University, who has made it her job, as of late, to join the public debate in jurisdictions considering same-sex marriage, stumping for broad exemptions to discrimination laws for those who have religious objections to the practice.

Recently, she testified at a D.C. Council hearing on gay marriage and also wrote a Washington Post op-ed advocating for stronger protections against religious discrimination. In her council testimony, Wilson cited a flurry of federal case law to support her positions. Catania proceeded to actually look up the cases. If you come at Catania, you best come correct. Wilson, it seems, did not.

You can read the letter in full [PDF]. In fact, please do. Text is also pasted after the jump.

Here's some key lines:

—'In order to justify your position – that public employees should be exempted from the District of Columbia's Human Rights Act when it conflicts with their deeply held religious beliefs -you inappropriately misconstrued the holdings of these cases.'

—'Your misunderstanding apparently led you to claim that "circuit after federal circuit" has found that Title VII requires that police departments allow police officers to refuse to guard places that violate their religious beliefs such as abortion clinics and casinos. You even told Councilmember Jim Graham that this result "may be absurd, but it is the law under Title VII." Professor Wilson, this is clearly not the law in the Seventh Circuit, the only circuit on which your testimony at the hearing relied. Furthermore, the Supreme Court has made clear that the "undue burden" test you cite is a "de minimus" standard. I find it outrageous that you would claim otherwise.'

—'I am disturbed that you may use your misunderstanding of these cases in future testimony before legislative bodies. I am respectfully asking that you cease these misrepresentations in order to allow an honest discussion of the merits of present and future legislation.'

Catania goes on to question Wilson's political motivations, given the funding and affiliation of some of the groups she's associated with. "I am further concerned that your misrepresentations may not have been accidental or inadvertent," he writes. "Rather, your purported legal analysis and ethical judgment appear to be clouded by your political agenda."

His closing: "I am concerned about the ethical implications of your behavior and strongly caution you to consider your professional obligations of competency and candor. The democratic process depends upon an honest dialogue and open disclosure. As a professor of law, you should know better."

Catania copied the letter to the president and law dean of Washington & Lee, as well as bar discipline authorities in Texas, where Wilson is licensed.

Wilson tells the Post's Tim Craig that she thought the letter was "kind of nasty." (Professor, meet David Catania.) And her defense as to the merits of the letter? "They talked to me 45 minutes, it's possible I misstated something."

The letter in full (optical-scanned, so might contain some typos):

COUNCIL OF THE DISTRICT OF COLUMBIA
THE JOHN A. WILSON BUILDING
1350 PENNSYLVANIA AVENUE, NW
WASHINGTON, D.C. 20004

DAVID A. CATANIA
Council member, At – Large
Chair, Committee on Health

November 12, 2009

Professor Robin F. Wilson
Washington & Lee University School of Law
486 Sydney Lewis Hall
Lexington, VA 24450

Dear Professor Wilson:

I am writing to express my concern about mischaracterizations and misstatements you made during your testimony before the Council of the District of Columbia (Council) on November 2, 2009. You addressed religious accommodations under Title VII of the Civil Rights Act of 19641 as they relate to the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. In your testimony before the Council, you discussed two cases: Rodriguez v. City of Chicago (Rodriguez).2 a case dealing with a police officer who refused to guard an abortion clinic, and Endres v. Indiana State Police (Endres),3 a case dealing with a police officer who refused to protect a casino. In order to justify your position – that public employees should be exempted from the District of Columbia's Human Rights Act when it conflicts with their deeply held religious beliefs -you inappropriately misconstrued the holdings of these cases.

Although you made several misstatements, what is most shocking to me was your blatant mischaracterization of Endres. At the hearing you stated that, "police officers and firefighters under Title VII have been exempted from two things, in specific cases, one is standing guard at casinos against their conscience. In one case called Endres. the person was actually a Baptist and I guess didn't like gambling."4 In fact, the court in Endres reached the exact opposite conclusion.

The United States Court of Appeals for the Seventh Circuit (Seventh Circuit) held that police officers and firefighters "cannot choose which crimes they will investigate andwhich potential victims they will protect." The plaintiff refused to work at a casino because of his sincerely held religious beliefs. The court upheld the city's decision to fire the officer.7 The court stated, in pertinent part:

Law-enforcement agencies need the cooperation of all members. Even if it proves possible to swap assignments on one occasion, another may arise when personnel are not available to cover for selective objectors, or when . . . seniority systems or limits on overtime curtail the options for shuffling personnel. Beyond all this is the need to hold police officers to their promise to enforce the law without favoritism—as judges take an oath to enforce all laws, without regard to their (or the litigants') social, political, or religious beliefs. Firefighters must extinguish all fires, even those in places of worship that the firefighter regards as heretical. Just so with police.8

The court then noted:

The public knows that its protectors have a private agenda; everyone does. But it would like to think that they leave that agenda at home when they are on duty—that Jewish policeman protect neo-Nazi demonstrators, that Roman Catholic policemen protect abortion clinics, that Black Muslim policemen protect Christians and Jews, that fundamentalist Christian policeman protect noisy atheists and white-hating Rastafarians, that Mormon policemen protect Scientologists, and that Greek-Orthodox policemen of Serbian ethnicity protect Roman Catholic Croats. We judges certainly want to think that U.S. Marshals protect us from assaults and threats without regard to whether, for example, we vote for or against the pro-life position in abortion cases. . . . And, we add, Baptist policemen protect gamblers from theft and fraud (and casino operators from sticky-fingered gamblers and employees with falsified credentials).

I am also troubled by your incorrect application of Rodriguez. In that case a police officer, Angelo Rodriguez, alleged that the City of Chicago discriminated against him by refusing to exempt him from an assignment to stand guard outside an abortion clinic. You indicated that the court upheld Rodriguez's ability to exempt himself from clinic duty,10 when in fact the court specifically rejected Rodriguez's claim of discrimination under Title VII, The court did not find that a police officer can refuse to guard an abortion clinic if it violates their deeply held religious belief. Indeed, the Seventh Circuit held that the pre-existence of a transfer option under the employee's collective bargaining agreement permitted the employee to transfer to another police district without an abortion clinic.12 Thus, the court never addressed the issues of "reasonable accommodation" and "undue burden" in the manner in which you represented. And it is inexcusable that you failed to mention that the discussions of these issues in Rodriguez are not reflective of the current state of the law in light of the Seventh Circuit's holding in Endres. which is discussed above.13

Your misunderstanding apparently led you to claim that "circuit after federal circuit" has found that Title VII requires that police departments allow police officers to refuse to guard places that violate their religious beliefs such as abortion clinics and casinos. You even told Councilmember Jim Graham that this result "may be absurd, but it is the law under Title VII."15 Professor Wilson, this is clearly not the law in the Seventh Circuit, the only circuit on which your testimony at the hearing relied. Furthermore, the Supreme Court has made clear that the "undue burden" test you cite is a "de minimus" standard.16 I find it outrageous that you would claim otherwise.

Your Curriculum Vitae states that you have previously participated in the legislative process regarding marriage equality in both New Hampshire and Connecticut. I am disturbed that you may use your misunderstanding of these cases in future testimony before legislative bodies. I am respectfully asking that you cease these misrepresentations in order to allow an honest discussion of the merits of present and future legislation.

I am further concerned that your misrepresentations may not have been accidental or inadvertent. Rather, your purported legal analysis and ethical judgment appear to be clouded by your political agenda. You are a member of the Virginia Marriage Commission, an organ of the Family Foundation of Virginia. The Family Foundation's stated goal is to promote the ideal that marriage "is the union between one man and one woman, [and] is an institution of God and a foundation of civil society."19 One of your colleagues at the Foundation is Maggie Gallagher, one of this country's most virulent opponents of marriage equality.20 The Foundation's partners include other well known right-wing organizations including the Family Research Council, Focus on the Family, and the Alliance Defense Fund. In addition to opposing marriage equality, the Foundation opposes embryonic stem cell research, opposes the use of emergency contraceptives, and promotes the defending of Planned Parenthood. Your failure to disclose your involvement with this organization, combined with your blatant misrepresentations before the Council, leads me to question the independence of your analysis.

In closing, I am concerned about the ethical implications of your behavior and strongly caution you to consider your professional obligations of competency and candor. The democratic process depends upon an honest dialogue and open disclosure. As a professor of law, you should know better.

Sincerely,

David A. Catania
Councilmember, At-Large
Chair, Committee on Health

cc: Kenneth P. Ruscio, President, Washington & Lee University
Rodney A. Smolla, Dean, Washington & Lee University School of Law
Chief Disciplinary Counsel, State Bar of Texas

1 Pub. L. No. 88-352, 78 Stat. 241 (codified at 42 U.S.C. § 2000e (2006)).
2 Rodriguez v. City of Chicago (Rodriguez). 156F.3d771 (7th Cir. 1999).
3 Endres v. Ind. State Police (Endres), 349 F.3d 922 (7th Cir. 2003).
4 Hearing on Religious Freedom and Civil Marriage Equality Amendment Act of 2009 on Nov. 2, 2009 [hereinafter Hearing] at 7:14.
5 Endres. 349 F.3d at 925.
6 Id. at 924.
7 Id at 927.
8 Id at 927 (emphasis added).
9 Id. (quoting Rodriguez. 156 F.3d at 779 (Posner, C.J., concurring)).
10 Hearing at 6:56.
11 Rodriguez. 156 F.3d at 778.
12 Id. In fact, the court in Endres stated that even the offer to transfer to another precinct was not required, holding that, "Certainly nothing in Ryan or Rodriguez implies that there must be such an offer...Here, where no accommodation was attempted, we must decide whether the statute requires one, and we hold that it does not." Endres, 349 F.3d at 926 (emphasis in original).
13 This year, the Seventh Circuit further extended the rule articulated in Endres in 2003, stating that even in private employment with no public safety implications, "Title VII does not require employers to deny shift preferences of some employees in order to favor the religious needs of others." Kevin Adams v. Retail Ventures. Inc.. 2009 U.S. App. LEXIS 9222, **6 (7th Cir. 2009). UI(L
15 Hearing at 7:15.
1642 U.S.C. § 2000e(j) (2006); Trans World Airlines. Inc. v. Hardison. 432 U.S. 63, 84 (1977) (emphasis
added): see Ansonia Bd. of Educ. v. Philbrook. 479 U.S. 60, 67 (1986): see also 29 C.F.R. § 1605.2(e)
(2009).
17 Curriculum Vitae of Professor Robin F. Wilson at 19, available at

http://law.wlu.edu/faculty/links/wilsonrfcv.pdf.

18 Family Foundation of Virginia, Information Alert: Seek Solutions to Divorce, available at
http://www.famiiy foundation.org/alert%207_ 12_07.htm.
19 Family Foundation of Virginia, Virginia Policy Issues, available at

http://www.familyfoundation.org/issues.html.

20 Family Foundation of Virginia, Information Alert: Seek Solutions to Divorce, available at http://www.familyfoundation.org/alert%207 12_07.htm.

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  • Joan

    David Catania for Mayor!!!!

  • FlexSF

    ""They talked to me 45 minutes, it's possible I misstated something."
    You arrogant religious lunatic! These are real, tangible rights that you're talking about. For you to use your legal profession, as a negative weapon against us, and prevent us from access to our rights, and pretend that your rights are being impinged upon, is a slap in the face from you, and the entire group that has continuously imposed their biblical garbage into our private lives.

    You're pathetic, and deserve all of the negative attention that you receive from your flamboyant negative exploitation of the democratic process.

    Conversely, I hope this annoys the hell out of you; we're going to destroy proposition 8 on 1-11-2010 @ 8:30 AM! Perry v. Schwarzenegger trial!

  • Charlie

    David Catania is quite good a schooling people. He also did this for Harry Jackson regarding his testimony at the Marriage Equality hearings.

  • jay

    Way to go Mr.Cantina! I find myself so upset about this garbage the Catholic Church is pulling. I wrote a rather nasty response to a person who identifies themself as "Proud Catholic"..(I wrote something about a wafer getting stuck)..I wish a group of people would get together this Sunday and stand outside St.Mathews with a few bullhorns and give those assholes a real lesson in christian charity.

  • Gentleman

    Maryland, get your land back.

  • Larry

    I agree about the arrogant religious people. David Catania is a perfect example of an open mind full of nothing but itself - his "religion" is political correctness run amok. You can hear the arrogance drip from his words (it's obviously all about him) How sad that he seems willing to allow his ego threaten to interfere with a charity which has helped many thousands of people in D.C.

  • Nate Barton

    It's time for Washington & Lee University to fire law professor Robin Fretwell Wilson, for intentional misrepresentation and unethical behavior.

    Robin Fretwell Wilson should lose her license to practice law.

  • Voice of Reason

    funny how these "christians" throw unnecessary tantrums about preserving their religious freedom. but when it's someone else's religious freedom, then that's another story. the story is that their religion is better. my religion recognizes all marriages (both same and opposite gender). so easy on the David Catania is arrogant crap. it's the un-Christian Catholic church that's using its hubris, sense of entitlement and ego to issue this statement basically stating that only their religious freedom matters and those DCers who don't agree...well they'll just take their blocks and go somewhere else.

  • Truth Hurts

    Catania did what real lawyers are trained to do: he read the cases. Shame on the W&L law prof for spouting nonsense cloaked in legalese. Stay in VA, please.

  • U.S. Citizen

    Miss David Catania is a racist white Republican bigot. I hope he leaves this earth soon.

  • EdTheRed

    pwnd.

  • Jamie

    The only thing more shocking than Wilson's blatant lying, is the commenters here criticizing Catania. If "calling out someone who blatantly lies in testimony" is political correctness run amok, then I sincerely hope that it runs amok far more often than it does. I sure wish we had more racist white republican bigots in government, since it seems they are the only people who won't stand for bald-faced lies.

  • Robert

    Sorry to disillusion you, "U.S.Citizen" ("Miss David Catania is a racist white Republican bigot. I hope he leaves this earth soon.") but David Catania is an Independent, not a Republican, serving on the D.C. City Council.

  • Pingback: Why Is This Law Professor Lying Her Face Off to D.C. City Council About Marriage? / Queerty

  • Bryan

    Regardless of how anyone feels about David Catania, he laid a well reasoned, and properly researched smackdown on a bigot trying to hide behind her esq and rewrite the common law to her own liking. Way to go! pwnd is right!

  • Jeremy

    I am no big fan of David Catania. The man does strike me as "a bit nasty', but I think he has every right to point out someone's factual errors. What I object to, and what I think is very telling here, is the fact that he sent a copy of his letter essentially to this person's boss and the bar authorities. In other words, he went after her job. By doing that, he has essentially validated the claims of his opponents that legalizing same sex marriage will result in a politically motivated witch hunt where people with opposing views will be demonized and worse. His actions are a perfect example of the dangers of same-sex marriage to anyone with religious principles. Thanks for pointing it out!

  • Adrian Bent-Me

    Jeremy- This lady got into the fray utilizing her professional credentials. Catania has every right to point out fallacies in her argument, not only to her, but the entire world. She would have done the same to him. In fact, that was the point of her getting involved. And trust, I want my law professor to actually know the fucking law. If she doesn't, all of her students and eventually the clients they represent will be affected.
    His actions aren't any different than a straight person pointing out and publicizing inconsistencies. This point has not to do with religious principles. If this debate was really about religious principles, do unto your others, love your neighbor, respect for other people, and a host of others would supercede banning homosexuals from having the same rights as others.

  • I am just saying

    People like this guy are all throughout the government and city councils across america. Defending a specific position which has not real affect on the important issues. If you dont like fags or gays good for you and you are a good america. I cant understand how people get pushed around and dont stand up for what they believe. Well look at Miss David Catania.

  • I am just saying

    When is Miss David going to fix the HIV problem in his city, probably never because he sits on the committee for health. Go figure a homo on a health committee that has an HIV rate higher than Africa.

  • noodlez

    THIS COCKSUKER IS A GONER NEXT ELECTION!

    I HAVE THE BELIEF THAT WE WILL GET SONE REAL LEADERSHIP IN 2010. NOT THESE POSERS THAT WE HAVE NOW!

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