Rejecting two petitions for review that were both considered long shots at best, the US Supreme Court, on April 15, announced it will not hear an appeal by gay death row inmate Charles Rhines, who contends the jury that sentenced him to death rather than life in prison without parole in his 1993 murder trial was tainted by homophobic statements some of the jurors made during deliberations.
The high court also announced it will not take up the question whether the Third Circuit Court of Appeals, based in Philadelphia, should reconsider its 2014 decision rejecting a constitutional challenge to a New Jersey law banning licensed health care professionals from providing so-called “conversion therapy” to minors.
In the Rhines case, the South Dakota attorney general had filed a short reply to the inmate’s petition, insisting that his office’s own investigation of the jury — sparked by Rhines’ contentions — failed to substantiate his claim that jurors sentenced him to death because he is gay. The AG’s office, however, did confirm that one juror joked that Rhines, as a gay man, would enjoy being locked up for life in an all-male environment where he would be able to enjoy sexual contacts with other prisoners.
Interviews of jurors by Rhines’ lawyers, conducted long after the trial, produced a variety of recollections — ranging from a statement that the juror who said the inmate would enjoy life in prison was challenged on his remarks and apologized to a recollection that there was considerable discussion of the defendant’s sexuality, which had been a topic of testimony during the penalty phase of the trial, when a family member testified he had struggled with being gay.
The jury sent a note to the trial judge during penalty deliberations, posing a series of questions about the conditions under which Rhines would be serving if he were sentenced to life without parole. Some of those questions prompted concerns by his lawyer that the jurors were inappropriately taking his sexual orientation into account in making their decision. The trial judge refused to respond to the questions, instructing the jurors to rely on the instructions he originally gave them.
Rhines has spent a quarter-century on death row since his conviction and sentencing seeking to get courts to set aside his death sentence based on a variety of theories. His latest hope was spurred by a Supreme Court decision last year that a court could breach the usual confidentiality of jury deliberations when there was evidence of inappropriate race discrimination by a jury. Had the high court taken Rhines’ case, it would have provided an opportunity to determine whether juror homophobia should receive the same constitutional consideration as jury racism.
Neither the federal district court in South Dakota nor the Eighth Circuit Court of Appeals considered this question, finding that it had not been raised early enough in the appellate process. The Supreme Court turned down a prior attempt by Rhines to raise this issue last year, while a prior appeal was still pending before the Eighth Circuit. When the Eighth Circuit rejected Rhines’ latest attempt, he filed a new petition but in vain. Though the court accepted amicus briefs in Rhines’ case from a group of law professors, from the NAACP Legal Defense & Education Fund, and from the American Civil Liberties Union, it rejected his petition without comment.
The conversion therapy petition posed a novel question for the high court. Should it order a federal appeals court to reopen a decision that had received unfavorable mention in a recent Supreme Court opinion in an unrelated case, when the high court itself had years ago rejected a petition to review that same appeals court decision?
Some backstory is in order here.
Conversion therapy practitioners, represented by the anti-LGBTQ litigation group Liberty Counsel, filed a constitutional challenge to the New Jersey law banning conversion therapy, claiming it violated their free speech rights. The federal district court and the Third Circuit Court of Appeals both rejected their argument. The speech involved was “professional speech,” the court of appeals said, and so entitled to less protection than political or literary speech. The Third Circuit ruling reached the same result as the San Francisco-based Ninth Circuit in rejecting an earlier challenge to California’s conversion therapy ban, but the grounds for the two rulings were different.
In the Ninth Circuit’s view, the conversion therapy ban was not subject to a First Amendment challenge because it was a regulation of health care practice, not specifically aimed at speech as such. Either way, however, both courts found that the state’s legitimate concerns about protecting minors from a practice condemned by leading professional associations outweighed the practitioners’ free speech claims.
In a separate case last year, the Supreme Court found fault with a California law that required licensed clinics providing services to pregnant women to advise them of abortion services available from the state. The Supreme Court concluded that this was “compelled speech” subject to the most demanding level of judicial review, “strict scrutiny.” The state’s argument defending its requirement relied on the conversion therapy cases, arguing that the speech in question was “professional speech” subject to a less demanding level of judicial review. Writing for the high court, Justice Clarence Thomas rejected that argument, and in doing so he singled out the Third Circuit’s conversion therapy ruling for criticism.
Even though the Supreme Court had refused a petition to review the Third Circuit ruling back in 2015, the conversion therapy practitioners, still represented by Liberty Counsel, asked the Third Circuit to reconsider its ruling in light of Thomas’ negative comments in his opinion for the court in the California abortion services case. The Third Circuit refused, and this petition for Supreme Court review was filed on February 11. Counsel representing the New Jersey Attorney General’s Office and Garden State Equality, which had intervened as a co-defendant in the original case, thought so little of the petitioners’ chances that they did not file briefs in opposition. Their confidence was justified. It was never likely that the Supreme Court would order a circuit court of appeals to reopen a case from years ago for which the high court itself had already denied direct review.
The Supreme Court’s April 15 announcements — laying out decisions reached in its April 12 conference — failed to mention five other closely-watched pending cases related to LGBTQ rights. The court will hold another conference to discuss pending petitions on April 18, so there may be word on April 22 whether it will address sexual orientation and gender identity discrimination issues next term as well as another gay wedding cake case.