AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 138

LARGE ADDITIONAL ATTACHMENT(S) by PUBLIC.RESOURCE.ORG, INC. 136 Second MOTION for Summary Judgment filed by PUBLIC.RESOURCE.ORG, INC., 137 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by PUBLIC.RESOURCE.ORG, INC. (This document is SEALED and only available to authorized persons.) filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Errata 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38 FILED UNDER SEAL, # 39 Exhibit 39 FILED UNDER SEAL, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49 FILED UNDER SEAL, # 50 Exhibit 50 FILED UNDER SEAL, # 51 Exhibit 51 FILED UNDER SEAL, # 52 Exhibit 52 FILED UNDER SEAL, # 53 Exhibit 53 FILED UNDER SEAL, # 54 Exhibit 54 FILED UNDER SEAL, # 55 Exhibit 55 FILED UNDER SEAL, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58 FILED UNDER SEAL, # 59 Exhibit 59 FILED UNDER SEAL, # 60 Exhibit 60 FILED UNDER SEAL, # 61 Exhibit 61 FILED UNDER SEAL, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69 FILED UNDER SEAL)(Bridges, Andrew)

EXHIBIT 44

MEMORANDUM
TO:

American Psychological Association Council of Representatives

FROM:

Nathalie F.P. Gilfoyle, General Counsel

DATE:

August 8, 2014

SUBJECT:

Litigation Report

The following describes the nature and status of current litigation in which APA has been
engaged, either as a party or as amicus curiae, since the February 2014 meeting of Council. This is not a
privileged communication.
I. APA AS A PARTY
NEW DEVELOPMENTS SINCE FEBRUARY 2014
A.
AERA/APA/NCME v. Public.Resource.Org, Inc. – (U.S. District Court for the District of
Columbia) - AERA, APA and NCME jointly publish and own the copyright on the Standards for
Educational and Psychological Testing under a Management Agreement and have done so since 1985.
In December 2013, a full scanned version of the Standards was discovered on the website of
Public.Resource.Org, Inc. (https://law.resource.org/pub/us/cfr/ibr/001/aera.standards.1999.pdf) a website
that seeks to provide all government publications and citations from government documents to the
public. It is owned and operated by Carl Malamud. AERA sent Mr. Malamud a letter asking him to take
down the Standards from the PublicResource.org website, which he refused to do. Mr. Malamud's
position is that because the Standards are incorporated by reference in government regulations, anyone
has the right to publish the full text version of the Standards without permission of the copyright holders.
The Standards were incorporated by reference by the Department of Education into regulations
under Title 34: Education, Part 668-Student Assistance General Provisions, Subpart J-Approval of
Independently Administered Tests: Specification of Passing Score; Approval of State Process as follows:
§668.148 Additional criteria for the approval of certain tests.
(a) In addition to satisfying the criteria in §668.146, to be approved by the Secretary, a test
must meet the following criteria, if applicable:
(1) In the case of a test developed for a non-native speaker of English who is enrolled in a
program that is taught in his or her native language, the test must be—
(iv) Developed in accordance with guidelines provided in the 1999 edition of the “Testing
Individuals of Diverse Linguistic Backgrounds” section of the Standards for Educational and
Psychological Testing prepared by a joint committee of the American Educational Research
Association, the American Psychological Association, and the National Council on Measurement
in Education incorporated by reference in this section. Incorporation by reference of this
document has been approved by the Director of the Office of the Federal Register pursuant to the
Director's authority under 5 U.S.C. 552(a) and 1 CFR part 51. The incorporated document is on
file at the Department of Education, Federal Student Aid, room 113E2, 830 First Street, NE.,
Washington, DC 20002, phone [phone], and at the National Archives and Records
Administration (NARA). For information on the availability of this material at NARA, call 1866-272-6272, or go to:

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http://www.archives.gov/federal register/code of federal regulations/ibr locations.html. The
document also may be obtained from the American Educational Research Association at:
http://www.aera.net;
The AERA, APA and NCME assert that Public.Resource.Org, Inc. has no right to post their
copyrighted work without permission.
AERA, APA and NCME concluded that it was essential to protect their copyright in the Joint
Standards and on May 23, 2014 filed a complaint in federal district court in D. C. seeking both a
declaratory judgment and injunctive relief requiring the removal of the book from the website. In
response to the lawsuit, Public.Resource.Org, Inc. voluntarily removed the standards from its website,
pending the court’s disposition of the law suit. They maintain their position that the DOE reference to the
Test Standards effectively voids the copyright and allows publication of the Test Standards by anyone.
Legal fees for this infringement action will be paid from the Standards Fund, which is comprised
of revenue from the sales of the Test Standards and is administered by AERA, which serves as
Publisher of the Test Standards.
Because this case is in active litigation, any further discussion of the case would need to occur in
an executive session. The court order that is under appeal is posted on the COR teamsite. Public
communications about the lawsuit are handled by Rhea Farberman ([e-mail]).
B.
In re APA Assessment Fee Litigation – (U.S. District Court for the District of Columbia)
Beginning in late 2010 several class action lawsuits were filed in federal court in Washington,
D.C. alleging that the manner in which the practice assessment had been billed was actionable under a
variety of legal theories. These actions were consolidated in February, 2011 and a single putative class
action complaint against APA and APAPO was then filed. As a general matter, the consolidated
complaint alleged that APA and APAPO deceptively stated that the practice assessment was a
“mandatory” payment. The complaint asserted that APA and APAPO were unjustly enriched and
violated California’s consumer protection statute. Among other things, the complaint sought
disgorgement of all practice assessment monies paid since 2001.
APA and APAPO filed a motion to dismiss the lawsuit on March 2, 2011 asserting that the
complaint failed to set forth facts to support its conclusory assertions that the statements in the APA dues
forms were false or misleading; that dismissal of the unjust enrichment count was appropriate because it
is an established legal doctrine that disputes with members are governed by contract principles and
equitable claims such as unjust enrichment are therefore not available; and that the California statutory
claims were improper under established “choice of law” principles, which require application of District
of Columbia law, which expressly exempts from consumer protection claims any action against a
membership organization arising out of “membership services,” which includes disputes about dues
statements.
On May 30, 2012, the court issued an order granting APA and APAPO’s motion to dismiss the
complaint. Because leave to amend complaints is liberally given, the court allowed plaintiffs to file a
motion for leave to amend the complaint but required the plaintiffs to demonstrate that any alternative
claims would not be “futile.” On July 2, 2012, plaintiffs filed a motion seeking leave to amend their
complaint to add claims of 1) fraudulent misrepresentation; 2) rescission; and 3) negligent
misrepresentation. On August 2, 2012, APA and APAPO filed an opposition asserting that 1) the dues
statements did not misrepresent the effect on APA membership of non-payment of the practice
assessment and that, as a legal matter, the plaintiffs failed to meet the legal standard for fraudulent
misrepresentation; 2) the contract relationship between APA and its members precludes these claims; and

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3) rescission and negligent misrepresentation claims fail because the plaintiffs received services from
APAPO in exchange for their assessment payments and there was no economic loss.
On February 4, 2013, the court issued an order granting APA and APAPO's opposition to the
motion to amend and dismissing the complaint with prejudice. The court found that given the totality of
information that was available to members on the dues form and in the bylaws, as a matter of law the
plaintiffs could not show reasonable reliance on one sentence in the dues statement. Absent a showing of
reasonable reliance the misrepresentation claims fail. The court also found that rescission of the member
contracts and repayment of the practice assessment, which plaintiffs sought, was legally barred because
the contracts with APAPO had been fully performed, making it legally impossible to equitably return the
parties to the pre-contract status quo.
The plaintiffs have appealed the trial court rulings. On March 27, 2013, another plaintiff, Ira
Grossman, filed a separate putative class action complaint in the U.S. District Court for the Southern
District of California. Mr. Grossman is represented by the same counsel representing the plaintiffs in the
consolidated D.C. action. Mr. Grossman purports to represent a putative class comprised of all
individuals in California who paid the Practice Assessment in connection with their APA dues after
2000. The substantive allegations in the Grossman complaint are substantially similar to those contained
in the consolidated D.C. action. The Grossman complaint seeks to asserts claims for (1) unjust
enrichment and constructive trust; (2) violation of California's Unfair Competition Law ("UCL") § 17200
(Unfair Business Act); (3) violation of California's UCL § 17200 (Unlawful Business Act); (4) violation
of California's UCL § 17200 (Fraudulent Business Act); (5) violation of California's False Advertising
Law § 17500; (6) fraud and deceit; and (7) negligent misrepresentation.
In September 2013, APA and APAPO moved to transfer the case to the U.S. District Court for the
District of Columbia. This motion was granted on December 15, 2013 and the case has now been
transferred and assigned to the judge who dismissed the national class action. The Plaintiffs did not
appeal that decision
The plaintiffs’ appeal of the order dismissing the national class action was heard on April 7, 2014
and a decision is pending. Because this case is in active litigation, any further discussion of the case
would need to occur in an executive session. The court order that is under appeal is posted on the COR
teamsite.
Public communications about the lawsuit are handled by Rhea Farberman ([e-mail]).
II. APA AS AMICUS CURIAE
NEW DEVELOPMENTS SINCE FEBRUARY 2014
A.
Hall v. Florida – (U.S. Supreme Court) – The central issue in this case was whether a
statutory definition of mental retardation that has a bright-line cutoff requiring an IQ score of 70 or below
adequately captures the constitutional imperative that the mentally retarded not be executed.
The defendant in this case, Freddie Lee Hall, was convicted of a capital murder that occurred in
1978 and sentenced to death. After his original sentence was vacated, Hall was resentenced to death in
1991. At the time, the judge who sentenced Hall noted that he was “mentally retarded” but found that
fact to have “unquantifiable” mitigating weight. Following Atkins, Hall filed a habeas petition and an
evidentiary hearing was held. Although there was ample evidence supporting Hall’s claim – he had been
repeatedly diagnosed with mental retardation in the past - because Hall had scored 73 and 80 on the
WAIS-R and 71 on the WAIS-III, the trial court held he could not establish the threshold of a mental

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retardation claim. The Florida Supreme Court had interpreted the Florida statute to mean that a score
above 70 on the WAIS-III absolutely precludes a showing of mental retardation, and rejected Hall’s
argument that the standard error of measurement should be taken into account: “The statute does not use
the word approximate, nor does it reference the SEM. Thus, the language of the statute [is] clear.” The
Florida court also rejected the argument that a bright-line cutoff score of 70 was contrary to Atkins,
reasoning that the Supreme Court had left the determination of who should be classified as mentally
retarded “to the individual states.” The court claimed that the Florida statute is consistent with DSM
criteria for mental retardation.
APA’s brief to the Supreme Court advised that: 1) there is unanimous professional consensus
that the diagnosis of intellectual disability requires comprehensive assessment and the application of
clinical judgment; 2) the existence of concurrent deficits in intellectual adaptive functioning is central to
the rationale of the Atkins decision and a system for identifying intellectual disability that does not include
analysis of adaptive functioning is based on a fundamental misunderstanding of the diagnostic criteria;
and 3) the use of a fixed IQ score as a cutoff to assess intellectual functioning ignores the fact that IQ test
scores are subject to a standard error of measurement and the interpretation of IQ test scores must take the
test’s reliability into account.
On May 27, 2014, the U.S. Supreme Court issued a 5-4 majority ruling against the Florida statute
setting an IQ score requirement for defendants arguing their intellectual disability should protect them
from the death penalty. Twelve years after leaving it to the states to determine when individuals were too
intellectually incapacitated to be executed, the Court withdrew some of that discretion.
Justice Kennedy's majority opinion noted that the Court was not moving the rule of law on
executing those who claim intellectual disability very far from where it had left that question twelve years
ago in Atkins. However, the majority opinion and concluded that it was rare to make anyone eligible for
the death penalty based simply on an IQ score above 70. The ruling did not rule out states' use of IQ test
scores as part of the analysis of whether an individual had sufficient intellectual functioning to qualify for
the death sentence. However, it stressed that use of such scores must take into account the "inherent"
imprecision of such scores.
APA's amicus brief was cited multiple times by Justice Kennedy in the decision. APA was joined
on its brief by the American Psychiatric Association, American Academy of Psychiatry and the Law,
Florida Psychological Association, National Association of Social Workers, and National Association of
Social Workers Florida Chapter.
B.
Commonwealth v. Walker – (Pennsylvania Supreme Court, Eastern Division) – The
Walker case involved a gunpoint robbery of two students in the early morning hours. One of the victims
was hit with the gun and injured; the other was able to get away quickly. The victim who had been struck
identified the Petitioner as the perpetrator from a photo array, and the other was not able to make certain
identification. At trial, only one victim was able to positively identify the Petitioner as the one who had
committed the robbery. The crime occurred in poor lighting, was brief, involved a gun, and was
committed by an individual of a different race than the victims. Motions raised pre-trial asked the court to
allow for an expert to testify to those issues, for appropriate jury instructions, and for limiting instructions
on argument. All motions were denied, and the Superior Court affirmed the decisions on appeal.
The Pennsylvania Supreme Court had long held that expert testimony from social scientists in the
fields related to eyewitness identification – human memory, perception, and recall – is improper as it
intruded on the jury’s duty to judge the credibility of each witness. While the overwhelming majority of
jurisdictions allow for the admission of such testimony at trial, Pennsylvania did not.

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The Pennsylvania Supreme Court accepted the case for review on two grounds: “1) whether the
trial court should have had the discretion to allow the Petitioner to present expert testimony regarding
human memory, perception, and recall, and 2) whether the Court should permit expert scientific
testimony, whether it be for the defense or prosecution, on how the mind works as long as the testimony
has reached general acceptance.” In a nutshell, at the heart of the case was the issue of admissibility in
Pennsylvania courts of expert testimony on research regarding the reliability of eyewitness identification.
There is a large and growing body of scientific research directed specifically at eyewitness
reliability. There are a number of scholarly books by psychologists summarizing the research and related
issues. Gary Wells and others authored the first APA Division 41 White Paper on Eyewitness
Identification Procedures (published in Law and Human Behavior in 1998).
Research regarding eyewitness memory is extensive (e.g., reliability of eyewitness identification,
factors affecting the reliability of eyewitness identification, etc.). Given that the well-established expert
testimony regarding human perception, memory, and recall in cases involving eyewitness identification is
generally accepted in the field and that the overwhelming response of courts nationally is to allow such
testimony, COLI recommended and the Board of Directors agreed that it was important to file a brief to
educate the Pennsylvania courts on this matter. Specifically, because many of the variables affecting
eyewitness identification are counter-intuitive and simply unknown to the layperson, not admitting expert
testimony in this regard could result in mistaken convictions (In many cases in which DNA evidence has
revealed a wrongful conviction, the conviction was based primarily or exclusively on eyewitness
identification.)
On August 1, 2011, APA filed an amicus brief urging the court to follow the majority of other
states and allow expert testimony on the strong body of psychological research regarding eyewitness
testimony, including research regarding juror misunderstanding of the accuracy of eyewitness
identification and the factors that can affect the accuracy of eyewitness identifications. The brief also
explains that the means by which this research has been undertaken and the results have been widely
accepted in the scientific community.
On May 28, 2014, Pennsylvania Supreme Court reversed prior precedent that barred expert
testimony on the social science research regarding factors that affect the reliability of eyewitness
testimony. In reaching its decision, the court cited APA’s brief on each of the following points: 1) most
jurors do not understand the factors that affect reliability of eyewitness testimony, making expert
testimony important; 2) experts would speak to objective scientific research regarding eyewitness
identification, not factual issues within the jury’s purview; 3) research shows that juries do not abdicate
their fact finding responsibility when presented with expert testimony; 4) this area of research has general
acceptance in the scientific community — specifically that extensive research has been conducted on
human memory and its limits, as well as inaccurate eyewitness identification; and 5) published research
has identified numerous factors that impact the reliability of eyewitness identification.
C.
Cases Involving The Right of Same Sex Couples to Marry - Golinski v. Office of
Personnel Management (U.S. Court of Appeals for the 9th Circuit); Kitchen v. Herbert and Bishop v.
Smith – (10th Circuit Court of Appeals); Bostic v. Schaefer (4th Circuit Court of Appeals); Latta, et al., v.
Otter (U.S. Court of Appeals for the 9th Circuit); Baskin, et al. v. Zoeller, et al.- (U.S. Court of Appeals
for the 7th Circuit) and Deleon v. Perry – (U.S. Court of Appeals for the 5th Circuit) (legal fees for these
subject matter briefs are capped at $10,000)
1)
Golinski v. Office of Personnel Management (U.S. Court of Appeals for the 9th Circuit) This lawsuit was a challenge to the constitutionality of section 3 of the Defense of Marriage Act
(DOMA), the section that defines the terms “marriage” as “a legal union between one man and one

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woman as husband and wife” and “spouse” as “a person of the opposite sex who is a husband or a wife.”
Section 3 prevents the federal government from recognizing the marriages of same-sex couples who are
legally married in their own states and restricts the federal government from granting such couples any
federal benefits it provides to opposite-sex married couples.
In this case, Karen Golinski was denied spousal health benefits by her employer, the U.S. Court
of Appeals, Ninth Circuit in San Francisco. She married her partner of 20 years in 2008 when such
marriages were legal in California and attempted to obtain health insurance for her partner under the
federal government’s health benefit plans. She was refused with DOMA being cited as the basis. In
January 2009, Chief Judge Alex Kozinski ruled in an administrative action that it violates the Ninth
Circuit's employment policies prohibiting discrimination based on sexual orientation to deny the legally
married Golinski the same benefits for her wife as heterosexual court employees receive for their lawful
spouses. The federal Office of Personal Management (OPM)—an agency of the executive branch—
responded that the law governing federal employees' health insurance and the so-called Defense of
Marriage Act (DOMA) prevent coverage for the spouses of lesbian and gay federal employees, and
instructed Golinski's insurer not to enroll her wife. Lambda Legal sued the federal government to compel
it to stop interfering with the orders of the court's chief judge so that Golinski can be provided equal
benefits for her wife, and subsequently raised a direct challenge to DOMA in federal court.
In February 2011, President Obama and Attorney General Eric Holder concluded that Section 3
of DOMA is unconstitutional and inappropriate to defend. Thereafter, the Bipartisan Legal Advisory
Group (BLAG) intervened on behalf of the leadership in the U.S. House of Representatives to defend
DOMA. Plaintiff moved for summary judgment in July of 2011, and on February 22, 2012, U.S. District
Court Judge Jeffrey White issued a ruling declaring DOMA unconstitutional. BLAG appealed the district
court decision to the U.S. Court of Appeals for the Ninth Circuit.
On July 10, 2012, APA filed a brief in support of Golinski, joined by the California Psychological
Association, the American Psychiatric Association, the National Association of Social Workers, the
American Medical Association, the American Academy of Pediatrics and the American Psychoanalytic
Association. The brief is similar to the brief APA previously filed in the U.S. Court of Appeals in the
First Circuit (Gill v. Office of Personnel Management). The brief applies social science research to rebut
some of the justifications offered for the prohibition in Section 3 of DOMA of any federal recognition of
the marriages of same-sex couples. Those justifications, involving procreation, the welfare of children and
the like, are closely similar to those offered in cases defending states’ refusal to allow same-sex couples to
marry. The amicus brief provided extensive psychological research on key points, including how
homosexuality is a normal expression of human sexuality, is generally not chosen, and is highly resistant
to change. Also provided was current scientific research on the nature of same-sex relationships, the role
of child-rearing, and the stigma resulting from denying the label “marriage” to same-sex unions. For
example, the brief cited psychological research showing that gay and lesbian parents are not any less fit or
capable than heterosexual parents, and that their children are not less adjusted. The brief also addressed
how denying federal recognition to legally married same-sex couples stigmatizes them.
The government filed a preemptive petition for certiorari to the U.S. Supreme Court and the 9th
Circuit stayed oral argument in the case pending the Court’s action on the petition for Certiorari.
Following the Supreme Court's decision in U.S. v. Windsor that found Section 3 of DOMA
unconstitutional, with the consent of all parties, the Ninth Circuit dismissed the appeals.
2)
Kitchen v. Herbert and Bishop v. Smith – (U.S. Court of Appeals for the 10th Circuit) –
This case involved a federal challenge to Utah and Oklahoma’s laws prohibiting same-sex couples from
marrying and recognition of the legal marriage of same-sex couples who married in other states.

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Utah Constitutional Amendment 3, passed by referendum in 2004, states that no union other than
one between a man and a woman may be recognized as a marriage. Derek Kitchen and five co-plaintiffs
took issue with this definition and filed a lawsuit in federal district court to challenge the gay marriage
ban. In a December 2013 ruling, the court invalidated the amendment, finding that such a restriction was
an affront to equal protection and the fundamental right to marry. Meanwhile, Mary Bishop and Sharon
Baldwin also filed a federal suit to challenge a similar provision that was added to Oklahoma’s
constitution by referendum in 2004. Like Utah’s district court, the Oklahoma district court found the
amendment unconstitutional. Following the Supreme Court ruling in United States v. Windsor — which
struck down part of the Defense of Marriage Act — these state cases were brought before the U.S. Court
of Appeals for the Tenth Circuit, to consider the constitutionality of a state’s decision to exclude same-sex
unions from the definition of marriage.
APA filed a brief supporting the Utah and Oklahoma plaintiffs' fight for equality under the law in
their respective challenges. As in prior APA briefs, scientific evidence was presented concerning sexual
orientation and families relevant these combined cases. APA argued that: 1) homosexuality is a normal
expression of human sexuality, is generally not chosen, and is highly resistant to change; 2) that gay men
and lesbians form stable, committed relationships that are equivalent to heterosexual relationships; 3) that
the institution of marriage offers social, psychological and health benefits that are denied to same-sex
couples who cannot legally marry; and, 4) there is no scientific basis for concluding that same-sex
couples are any less fit or capable parents than heterosexual couples or that their children are any less
psychologically healthy. The brief further states that by devaluing and delegitimizing same-sex
relationships, the Oklahoma and Utah laws compound and perpetuate the stigma historically attached to
homosexuality.
Oral argument was held on April 10, 2014 and on June 24, a three-judge panel of the Tenth
Circuit issued a ruling that Utah’s constitutional amendment barring marriage for same-sex couples
violates the U.S. Constitution.
3)
Bostic v. Schaefer – (U.S. Court of Appeals for the 4th Circuit) – At issue is the
constitutional challenge to Virginia’s refusal to issue marriage licenses to same-sex couples.
In July 2013, Bostic and his partner, London, sought to obtain a marriage license at the Norfolk
Circuit Court but were turned down because of the state’s ban on marriage equality. The couple then filed
a lawsuit in the U.S. District Court. In February 2014, the U.S. District Court ruled in favor of the
plaintiffs declaring that laws prohibiting gay and lesbian couples from marrying are unconstitutional. The
ruling was appealed to the U.S. Court of Appeals for the Fourth Circuit. State Registrar of Vital Records
Janet Rainey and Clerk of the Circuit Court for the City of Norfolk George Schaefer served as
defendants-appellants in their official capacities. Prince William County Circuit Court Clerk Michele
McQuigg was an intervenor defendant-appellant.
APA’s brief argued that Virginia’s laws banning recognition of same-sex marriage are instances
of institutional stigma and further argues that the laws are unconstitutional in that it denies them the equal
protection rights guaranteed by the Fourteenth Amendment.
The 4th Circuit Court of Appeals heard oral arguments in this case on May 13, 2014. On July 28,
2014, the United States Court of Appeals for the Fourth Circuit upheld a lower court’s decision in Bostic
v. Rainey, No. 14-1167 (4th Cir. July 28, 2014), striking down Virginia state laws that prohibit same-sex
marriage or the recognition of such marriages lawfully entered in other states. In a 2-1 decision, the Court
found that the United States Constitution provides individuals with a fundamental right to marry another
individual, no matter the gender. This continues the trend of recent decisions throughout the country

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finding bans on same-sex marriage unconstitutional, including the Tenth Circuit’s recent decisions in
Kitchen v. Herbert and Bishop v. Smith.
After finding that the opponents of Virginia’s same-sex marriage ban had legal standing to
challenge the ban, the Court rejected the ban-proponents’ argument that existing Supreme Court
precedent, Baker v. Nelson, barred the challenge. Because Supreme Court jurisprudence has changed
substantially since Baker, the Fourth Circuit, echoing other courts that have ruled on this issue, held that
Baker is no longer controlling.
The Fourth Circuit held that “the fundamental right to marry encompasses the right to same-sex
marriage,” and therefore, that Virginia’s same-sex marriage ban must pass strict scrutiny review, the
highest level of scrutiny applied to governmental restrictions on constitutional rights. The Court held that
the right to same-sex marriage was no different from the right to interracial marriage recognized in 1967
by the Supreme Court in Loving v. Virginia, both subsets “of a broad right to marry that is not
circumscribed based on the characteristics of the individuals seeking to exercise that right.”
Under strict scrutiny, the law infringing a fundamental right “may be justified only by compelling
state interests, and must be narrowly drawn to express only those interests.” The Court addressed and
rejected five asserted “compelling” interests offered by the proponents. The Court rejected the
proponents’ argument that principles of federalism and states’ rights provided a compelling interest
supporting the ban, because, although states traditionally have the authority to define marriage, a state
cannot place restrictions on marriage that violate the constitutional rights of individuals. Similarly, the
Court found the proponents’ appeal to “history and tradition” lacking, because tradition provides an
insufficient basis to infringe a fundamental individual liberty, such as the right to marry.
Further, the Court dismissed the argument regarding the parental effectiveness of same-sex
couples. Quoting extensively from APA’s amicus brief (joined by American Academy of Pediatrics,
American Psychiatric Association, National Association of Social Workers, and Virginia Psychological
Association), the Court noted that “‘there is no scientific evidence that parenting effectiveness is related
to parental sexual orientation,’ and ‘the same factors’ – including family stability, economic resources,
and the quality of parent-child relationships – ‘are linked to children’s positive development, whether
they are raised by heterosexual, lesbian, or gay parents.’” The court also noted that “[a]ccording to the
APA, ‘the parenting abilities of gay men and lesbians—and the positive outcomes for their children—are
not areas where most credible scientific researchers disagree.’” While the Court found the arguments
“extremely persuasive,” it held that it did not need to resolve that dispute, because the proponents’
optimal childrearing argument faltered under strict scrutiny.
In this regard, the Court affirmed the district court’s decision to enjoin enforcement of the
Virginia Marriage Laws. It is not yet clear whether the Court will stay its decision pending further
appeals by the proponents.
4)
Latta v. Otter – (U.S. Court of Appeals for the 9th Circuit) – This law suit is a challenge to
Idaho’s laws prohibiting same-sex couples from marrying and refusing to respect the legal marriages of
same-sex couples who married in other states. This case is on appeal from the U.S. District Court for the
District of Idaho. APA filed an amicus brief on July 25, 2014 in support of Plaintiffs-Appellees (Latta et
al.) and was joined by American Psychiatric Association and the National Association of Social Workers.
Consistent with prior APA briefs, the brief presents an accurate summary of the current state of
scientific and professional knowledge concerning sexual orientation and families relevant to this case –
including that homosexuality is a normal expression of human sexuality, resistant to change, factors that
affect adjustment of children are not dependent on parental gender or sexual orientation, etc.

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APA’s brief further states that there is no scientific basis for concluding that same-sex couples are
any less fit than heterosexual couples who are parents and are no less psychologically healthy and
denying the status of marriage to same-sex couples stigmatizes them.
The case will be heard late August or September.
5)
Baskin, et al. v. Zoeller, et al.- (U.S. Court of Appeals for the 7th Circuit) – This law suit
is a challenge to the constitutionality of the Indiana and Wisconsin laws prohibiting same-sex couples
from marrying.
APA filed an amicus curiae brief in support of Plaintiff-Appellees on August 5, 2014.
APA was joined by the Wisconsin Psychological Association, the American Psychiatric Association;
American Academy of Pediatrics and their state chapter; American Association for Marriage & Family
Therapy; NASW and their state chapters.
Consistent with prior APA briefs, the brief presents an accurate summary of the current state of
scientific and professional knowledge concerning sexual orientation and families relevant to this case –
including that homosexuality is a normal expression of human sexuality, resistant to change, factors that
affect adjustment of children are not dependent on parental gender or sexual orientation, etc.
APA’s brief further states that there is no scientific basis for concluding that same-sex couples are
any less fit than heterosexual couples who are parents and are no less psychologically healthy and
denying the status of marriage to same-sex couples stigmatizes them.
This case will be heard by the 7th Circuit this fall.
6)
Deleon v. Perry – (Corrected 8/12/2014) (U.S. Court of Appeals for the 5th Circuit) –
This case challenges Texas law prohibiting same-sex couples from marrying and refusing to respect the
legal marriages of same-sex couples who married in other states.
On October 28, 2013, lawyers filed a federal lawsuit on behalf of two same-sex couples seeking
the freedom to marry or respect for their legal marriage in Texas. In Texas, same-sex couples are
prohibited from joining together in marriage because of a 2005 constitutional amendment. The two
couples are Mark Phariss & Vic Holmes and Cleopatra De Leon & Nicole Dimetman. Pharriss and
Holmes are unmarried, while De Leon and Dimetman married in Massachusetts in 2009 and are seeking
respect for their marriage in Texas.
On February 26, 2014, U.S. District Court Judge Orlando Garcia ruled that laws in Texas
prohibiting same-sex couples from marrying are unconstitutional. The federal judge also issued a stay on
the ruling pending appeal, so same-sex couples were not immediately allowed to receive marriage
licenses. The ruling was quickly appealed to the United States Court of Appeals for the 5th Circuit.
Consistent with prior APA briefs, the brief presents an accurate summary of the current state of
scientific and professional knowledge concerning sexual orientation and families relevant to this case –
including that homosexuality is a normal expression of human sexuality, resistant to change, factors that
affect adjustment of children are not dependent on parental gender or sexual orientation, etc.

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APA’s brief further states that there is no scientific basis for concluding that same-sex couples are
any less fit than heterosexual couples who are parents and are no less psychologically healthy and
denying the status of marriage to same-sex couples stigmatizes them.
The 5th Circuit Court of Appeals has yet to schedule oral arguments in the appeal.
D.
MKB Management, Inc. v. Burdick – (U.S. Court of Appeals for the 8th Circuit) – This
case challenges North Dakota’s law that would prohibit abortion as early as six weeks into a pregnancy.
After being struck down in the trial court as unconstitutional, the case goes to the U.S. Court of
Appeals for the Eighth Circuit. APA’s 2008 Task Force on Mental Health and Abortion Report has been
cited by both those opposing the restrictions and criticized by those supporting the restrictions. The
Report reviews and evaluates empirical studies relating to the mental health of women who have
abortions in the United States and finds that, based on the best research, among women who have a
single, legal, first-trimester abortion of an unplanned pregnancy there is no greater risk of mental health
repercussions than among women who deliver an unplanned pregnancy.
EMG and COLI approved a straightforward defense of our Report and an explanation of some of
the challenges of social science research in this area. APA, in 2010, sought leave to file a brief in another
case in the Eighth Circuit (Planned Parenthood et al. v. Mike Rounds et al.) Rounds was an appeal by
the state of South Dakota of a trial court ruling striking down as unconstitutional a South Dakota statute
that required physicians to warn women considering an abortion that suicide or suicidal ideation are
known medical risks of abortion. In reaching that decision the trial court relied in part on the Report of
the APA Task Force on Mental Health and Abortion, which found after a comprehensive literature review
that the research does not support a finding that an abortion in the first trimester causes mental health
problems. The appellant state of South Dakota opposed APA’s request for leave to file an amicus brief on
several grounds, including that the copy of the APA Task Force report that APA had attached to the
amicus brief for the court’s convenience contained several tables in the appendix that had not appeared in
the original report filed with the trial court. APA replied to these arguments but the 8th Circuit did not
allow APA’s brief to be filed. Thereafter APA sought leave to file a revised shortened brief that among
other things deleted the tables to the report. The state also opposed this request, accusing APA of trying to
supplement the record with expert testimony. The 8th Circuit again denied APA’s request and thus the
brief was not included in the material that the merits panel will consider when it decides the appeal. Thus,
the brief was submitted to the 8th Circuit Court of Appeals but not accepted.
The OGC is working with the APA Public Interest Directorate and outside counsel to review, and
update as needed, any new research that may appear to in any way undermine the APA Task Force Report
that presents a valid summary of the social science. For example, OGC has identified recent studies that
appear to improperly infer causation from correlation. Although correlation is a necessary prerequisite
for causation, the simple existence of a correlation, by itself, does not provide a sufficient scientific basis
for making causal inferences about abortion history and mental health variables.
The Rounds brief provides a strong template for filing a brief in Burdick or any case where the
APA Task Force Report’s findings come into issue. Legal fees are capped at $10,000. An APA amicus
brief will be filed in late August.
E.
Cases Involving Eyewitness Testimony – (Massachusetts Supreme Judicial Court) - The
Massachusetts Supreme Judicial Court sponsored an expert report on eyewitness testimony and has now

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issued a call for amicus briefs in three separate eyewitness identification cases, which will be heard in
September. We expect that there will be one consolidated brief. The cases and certified questions are:
1) Commonwealth v. Jeremy Gomes (SJC-11537) - Whether the judge erred in refusing to
instruct the jury, as requested by the defendant, in essence that (a) a witness's prior viewing of
a suspect in an identification procedure, without making a positive identification, reduces the
reliability of the witness's later identification of the same suspect; (b) human memory is not
like a video recording; and (c) witnesses who are highly confident of their identifications are
not therefore necessarily reliable.
2) Commonwealth v. Kenneth Johnson (SJC-11567) - Where a victim of a crime has failed to
identify the defendant in an identification procedure such as a police line-up, whether the
defendant is entitled to a modified identification instruction that informs the jury that they
may consider the fact that the victim failed to identify the defendant as the perpetrator.
3) Commonwealth v. Walter Crayton (SJC-11639) - Whether the court should adopt the
recommendation of the S.J.C. Study Group on Eyewitness Evidence, that “in-court
identification not be permitted except, in the judge's discretion, on redirect examination, in
rebuttal, or in other circumstances where the defendant challenges the witness's ability to
make such identification.” [We will evaluate whether there is strong research to present in
this case with our experts and COLI reviewers. As noted above it is likely that there will be
one consolidated brief. ]
APA has filed three briefs in the eyewitness testimony area (Commonwealth v. Walker; Perry v.
New Hampshire; and State of Connecticut v. Troy Artis) and we will build on those briefs in filing in
these cases.
Gary Wells, Steve Penrod, and Brian Cutler have agreed to be reviewers on this brief.
Legal fees are capped at $10,000.
NO NEW DEVELOPMENTS SINCE FEBRUARY 2014
A.
Sevcik v. Sandoval and Jackson v. Abercrombie (U.S. Court of Appeals for the 9th
Circuit) - This case challenges whether the Equal Protection Clause, part of the 14th Amendment to the
U.S. Constitution, does not prohibit the state from limiting marriage to people of the opposite sex.
These two cases, arising in Hawaii and Nevada, respectively, had similar outcomes in that the
District Courts each found there was no constitutional right to marriage for couples of the same sex. In
both cases, the courts applying rational basis review, ruled that the Equal Protection Clause of the 14th
Amendment does not prohibit the state from limiting marriage to people of the opposite sex. The Hawaii
case, based on Hawaii's marriage statute, also upheld the legitimacy of state policy refusing to recognize
same sex marriages performed in other states. The Nevada case involves the validity of an amendment to
the state's constitution banning same sex marriage.
APA’s brief relied on much of the scientific and professional literature sited in previous marriage
briefs — that most gay men and lesbians do not experience their sexual orientation as resulting from a
voluntary choice; that the consensus of mental health professionals and researchers has been that
homosexuality and bisexuality are normal expressions of human sexuality; that they pose no inherent
obstacle to leading a happy, healthy and productive life; and that there is no scientific basis for concluding
that same-sex couples are any less fit or capable parents than heterosexual couples. APA's position, based

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on that science, is that the states' judgment that, in the realm of intimate relationships, legally united
same-sex couples are inherently less deserving of society's full recognition than heterosexual couples is
unconstitutional. APA's position is that by devaluing and delegitimizing the relationships that constitute
the very core of homosexual orientation, the Nevada and Hawaii laws challenged by this brief compound
and perpetuate the stigma historically attached to homosexuality, and that the states' judgments should be
reversed.
B.
State of Connecticut v. Troy Artis – (Supreme Court of Connecticut) – At issue is
whether the appellate court majority properly determined that admission of the victim’s in-court and outof-court identifications following a suggestive police display of defendant’s photograph was a reversible
due process violation.
The case before the Connecticut Supreme Court involves research as presented in Perry v. New
Hampshire but involves a different legal issue. In this case, Mr. Artis was convicted as an accessory to
the first-degree assault in connection with a club fight. The central issue is whether the trial court’s
admission into evidence of the victim’s out-of-court identification of the defendant violated the
defendant’s due process rights under Manson v. Brathwait, 432 U.S. 98 (1977), and Neil v. Biggers, 409
U.S. 188 (1972). Here, all parties and the courts agree that the identification procedure was unnecessarily
suggestive. The trial and appellate courts disagreed, however, in the application of the reliability factors.
The State appealed the reversal of Artis’s conviction to the Connecticut Supreme Court, which agreed to
hear the case.
APA filed an amicus brief providing the Court with an overview of the strong body of research
showing the variables that affect accuracy of eyewitness identification, specifically addressing the point
that suggestive circumstances that will affect eyewitness identification can occur without police action
and that limiting due process protections to only those faulty eyewitness identification procedures that are
caused by state actors is too narrow a band of protection. In this case, the state’s sweeping attacks on the
appellate court’s ruling (and on psychological research and researchers) are addressed in detail in the
APA brief as lacking merit. APA’s brief also notes that courts throughout the country have
acknowledged that the relevant research is reliable and properly considered by the courts.
Legal fees were capped at $10,000.