LESBIAN/GAY LAW NOTES
ISSN 8755-9021 June 2004

Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013,
212-431-2156, fax 431-1804; e-mail: asleonard@aol.com or aleonard@nyls.edu

Contributing Writers: Ian Chesir-Teran, Esq., New York City; Joseph Griffin, Student, NY Law School 
'05; Alan J. Jacobs, Esq., New York City; Steven Kolodny, Esq., New York City; Todd V. Lamb, 
Esq., New York City; Mark Major, Esq., New Jersey; Sharon McGowan, Esq., New York, N.Y.; 
Daniel R Schaffer, New York City; Audrey E.Weinberger, Student, NY Law School '05; Robert 
Wintemute, Esq., King's College, London, England.

Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-
9118; e-mail: le_gal@earthlink.net.  Inquire for subscription rates.

© 2004 by the Lesbian & Gay Law Association Foundation of Greater New York.

SAME-SEX COUPLES MARRY IN MASSACHUSETTS	
 
At midnight the morning of May 17, the city clerk opened for business in Cambridge, Massachusetts, 
and the first marriage applications from same-sex couples were received.  By the end of the first historic 
day of legally-recognized marriages for same-sex partners in the United States, scores of couples had 
received licenses, and many, having paid a fee to obtain a waiver of the usual three-day waiting period, 
had their marriages solemnized, some in splendid church or synagogue weddings or city hall ceremonies, 
others in more private surroundings.  According to statistics compiled by Gay & Lesbian Advocates & 
Defenders and Marriage Equality at the end of the week, as of May 18 approximately 1700 same-sex 
couples had filed their intentions to seek licenses in 250 communities.  But within days, doubts had been 
raised about the validity of some of those marriages, in which the happy couples were residents from 
states other than Massachusetts.  

The historic marriages were the immediate legacy of the Massachusetts Supreme Judicial Court's 
decisions in _Goodridge v. Department of Public Health, 798 N.E.2d 941 (Nov. 18, 2003), and 
_Opinions of the Justices to the Senate_, 802 N.E.2d 565 (Feb. 3, 2004).   When the court issued its 
opinion in the fall, it gave the state legislature 180 days to take what action it deemed appropriate in light 
of the ruling.  There were many different opinions as to what this meant.   To the victorious parties, led 
by Gay & Lesbian Advocates & Defenders' Mary Bonauto, who had argued the case, this meant that 
the legislature had 180 days to do what was necessary to conform Massachusetts law to the reality that 
beginning on May 17, same-sex partners would be entitled to marry in the state.  To some of the 
opponents, this meant that the legislature had 180 days to figure out how to block such marriages from 
coming to Massachusetts, by preemptively enacting a civil union law.  A majority of the state  legislators 
ultimately took the later view, since instead of spending the time usefully studying how marriages for 
same-sex partners would require state law revisions and enacting appropriate ones, they devoted 
substantial time to a series of constitutional convention meetings, culminating in first-round approval of a 
proposed constitutional amendment that will both ban marriages for persons of the same sex, and 
establish civil unions, along the lines of those previously established in Vermont.  Under Massachusetts' 
cumbersome amendment process, the proposed amendment will have to pass another session of the 
legislature before it can be submitted to the voters, at the earliest in the general election in November 
2006.

While the legislature was off on its side-show, Governor Mitt Romney was also busy trying to think of 
ways to stop marriages for same-sex partners, or at least to limit their availability.  Romney seized upon 
an old, virtually dead-letter provision of the state's marriage laws, enacted in 1913, which provides that 
persons who are not Massachusetts residents may not be married in Massachusetts if their marriage 
would be "void" in the state of their residence. (The state had actually instructed clerks years ago not to 
enforce this provision, which was something of an embarrassment, and on May 19, the state Senate 
voted 28-3 to add a provision to pending state budget legislation to repeal the offending provision. A 
proponent of the repeal measure, openly-gay Senator Jarrett Barrios of Cambridge, cited the law's 
_shameful origins_ as a racist measure.  But House Speaker Thomas M. Finneran said he would block 
any attempt to make this part of the final budget bill sent to the governor.  Finneran objects to including 
a "controversial" rider in a budget bill, arguing that it should have a separate debate.)   Romney took the 
position that this law meant that same-sex couples resident elsewhere in the U.S. could not enter a 
marriage in Massachusetts unless they intended to move to the state, and that the clerks who issue 
marriage licenses should make sure that they issue them only to residents or those swearing their 
intention to relocate to Massachusetts, at the risk of being subject to criminal prosecution.  In at least 
four communities, there was advance indication that the clerks would issue licenses to out-of-staters in 
defiance of the governor: Provincetown (where the city council directed the clerk to do so), Somerville, 
Worcester, and Springfield.  In support of his position, Romney sent letters to the 49 other governors 
and state attorneys general, stating his understanding that such marriages performed in their states would 
be void, and asking them to advise if the case was otherwise.  By this action, Romney was placing his 
ideological objections above the economic interests of his state, since Provincetown and the western 
Massachusetts vacation communities were anticipating a significant boost in tourist spending this summer 
from same-sex couples arriving, sometimes with numerous friends and family in tow, to hold their 
marriage ceremonies.  

One who sent contrary advice was N.Y. Attorney General Elliot Spitzer, whose office had issued 
Informal Opinion No. 2004-1, 2004 WL 551537 (March 3, 2004), in response to inquiries from 
several city attorneys seeking advice on whether New York's Domestic Relations Law allows the 
issuance of marriage licenses to same-sex partners – advice sought in the wake of New Paltz Mayor 
Jason West's decision to perform marriages for same-sex partners.  At that time, Spitzer advised that 
New York's statute did not contemplate marriage licenses for same-sex partners (although such a denial 
of equal protection raised serious constitutional concerns), but that New York principles of comity 
should provide for the state to recognize marriages lawfully performed elsewhere, an issue of some 
significance in light of marriages being performed just across the border in Canada and soon to be 
performed in Massachusetts.  Spitzer responded to Romney's letter by maintaining that marriages 
performed for New York residents in Massachusetts would not necessarily be "void" in New York, 
one of the eleven states that does not have a mini-DOMA or constitutional amendment banning 
marriages between partners of the same sex.  
In Connecticut, another state sharing a common border with Massachusetts, Attorney General Richard 
Blumenthal opined, according to an Associated Press report of May 17, that Connecticut law does not 
provide for marriages for same-sex partners, but he declined to take a position on whether such 
marriages performed in Massachusetts would be recognized in Connecticut.  Blumenthal said that the 
recognition issue was not addressed in state statutes (Connecticut has no DOMA), and for him to take 
a position would be making law rather than interpreting it, which he saw as beyond the scope of his 
function.  (By contrast, Spitzer was able to take a position based on at least one judicial ruling, _Langan 
v. St. Vincent's Hospital_, 765 N.Y.S.2d 411 (N.Y. Sup. Ct., Nassau County, 2003), appeal pending, 
App. Div., 2nd Dept., which held that a Vermont civil union should be recognized under comity 
principles for purposes of a wrongful death action in New York.)  In tiny Rhode Island, Attorney 
General Patrick C. Lynch observed that the courts had not yet determined whether the existing marriage 
law forbids same-sex partners to marry, and that existing state cases dealt mainly with marriages 
involving bigamy, incest or mental incompetence.  Lynch opined that "validly performed" marriages from 
other states would be recognized in Rhode Island, another non-DOMA state, unless they violated the 
state's public policy, and that it is up to the courts and legislature to decide what that policy is, not the 
attorney general. _New York Times_, May 18.

In a bit of last-minute drama, several attempts were made to get the courts to block the _Goodridge_ 
decision from going into effect.  Governor Romney had asked the state attorney general, who opposes 
such marriages, to apply to the Supreme Judicial Court for a further stay pending the possible 2006 
voter approval of the anti-marriage amendment, but was rebuffed by A.G. Thomas F. Reilly, who said 
that the Goodridge plaintiffs had won their case and there was no legal ground for a further stay.  A 
group of legislators filed their own action with the S.J.C., arguing that the court should consider anew 
the question whether it had jurisdiction to decide the case and order the remedy that it had ordered, but 
were rebuffed without opinion.

Another lawsuit was attempted by a right-wing litigation group, calling itself Liberty Counsel, which filed 
in federal court, alleging that Massachusetts citizens had been denied the right to a republican form of 
government, as guaranteed them in the U.S. Constitution, when the Supreme Judicial Court engaged in 
legislating by redefining the meaning of marriage under state statutory law.  This action, _Largess v. 
Supreme Judicial Court of the State of Massachusetts_, 2004 WL 1068877 (D. Mass.), brought on 
behalf of a twelve Massachusetts citizens, eleven of them members of the legislature, was rejected on 
May 13 by U.S. District Judge Joseph L. Tauro, in a brief opinion evidently drafted on very short 
notice, since it was issued the day after oral argument in a suit filed just days before.   

In this case, the attorney general's office was defending the Supreme Judicial Court, and argued that the 
federal court lacked jurisdiction of the subject matter, an argument that Tauro rejected.  However, he 
disagreed with the plaintiffs' contention that the SJC's action violated the federal Constitution's 
Guarantee Clause.  He found that the Massachusetts Constitution provided a mechanism by which the 
legislature could give the courts subject matter jurisdiction over family law questions, and that it had, in 
fact, done so. "Implicit in that transfer of jurisdiction to the judicial branch is the transfer of authority to 
define the term marriage, as that term appears in the Massachusetts Constitution," wrote Tauro. "There 
can be no question that, if the judicial branch has jurisdiction over all questions involving divorce, 
alimony, affirmation, and annulment, it has the authority to determine whether there has been a valid 
marriage.  And, in order to determine whether there has been a valid marriage, the judicial branch must 
have the authority to interpret, and if necessary, reinterpret, the term marriage."

Tauro also rejected the argument that the SJC had usurped legislative authority by redefining marriage in 
order to satisfy its view of the equality requirements imposed by the state constitution.  Repeating his 
view that the SJC "has the authority to interpret, and reinterpret, if necessary, the term marriage as it 
appears in the Massachusetts Constitution," Tauro continued, "The SJC's reformulation of the term 
marriage in its opinion in the _Goodridge_ case was, therefore, not a legislative act.  Rather, it was a 
legitimate exercise of the court's authority and responsibility to decide with finality all issues arising under 
the Massachusetts Constitution." Tauro also found it significant that the SJC then gave the legislature a 
180 day window "to act before entry of judgment." Tauro concluded that the plaintiffs were unlikely to 
succeed on the merits, and thus were not entitled to injunctive relief.  

An emergency appeal by the plaintiffs to the 1st Circuit gained them no relief, that court rejecting any 
request for interim relief and indicating that it could hear an appeal from Tauro's opinion sometime in 
June.  A desperate application to Supreme Court Justice David Souter, Circuit Justice for emergency 
appeals from the 1st Circuit, was referred by Souter to the full Supreme Court, which refused to get 
involved.  And thus marriages could begin on May 17.

After the marriages began taking place, Governor Romney quickly moved to take action on the 
marriages by out-of-staters, demanding that city clerks send to the governor's office the documents on 
all out-of-state couples who had received licenses.  Romney referred these to A.G. Reilly, who ordered 
the clerks to stop issuing licenses to out-of-state same-sex couples, in letters dispatched on May 21.  
Some complied immediately, including Springfield.  In Provincetown, the city council was to consider 
the matter on Tuesday, the 25th, and the Worcester clerk's office indicated they were confident that 
they were doing the right thing under state law by continuing to issue the licenses.   In Somerville the 
clerk wanted to continue issuing licenses, but after a few days the mayor, Joseph A. Curtatone, ordered 
them stopped "temporarily" while awaiting a response to a letter he sent Reilly, asking whether Reilly's 
letter was intended to be a cease-and-desist order and whether the clerk should be quizzing 
heterosexual license applicants about their residential status and intentions.  Reilly had justified his letters 
as follows: "This is pretty clear.  The decision is relevant to residents of Massachusetts and people from 
other states who come to Massachusetts and intend to reside here; it's limited to that. . . So with 
respect to the law, we will enforce the law." But Reilly said he would probably not seek to penalize 
those clerks who had issued licenses prior to receiving his letter.  

It seemed certain that the 1913 law's constitutionality would be drawn into question relatively quickly.  
It was adopted in response to a proposal by the Commissioners on Uniform State Laws, who were 
attempting to make marriage laws "uniform" throughout the country at a time when many states (but not 
Massachusetts) banned marriages between white persons and persons of color.  Only half a dozen 
states responded to the Commissioners' recommendation by adopting the laws.  At the time, the 
interracial marriage of professional prizefighter Jim Johnson had scandalized many and provoked much 
public discussion about people traveling to other states to marry in order to avoid miscegenation laws, 
although contemporary accounts have suggested to some historians now quickly looking into the matter 
that stopping interracial couples from coming to Massachusetts to marry was but one of several grounds 
on which legislators stated their support for the law in 1913.  

Most of this article is based on stories appearing during the relevant time period in the _Boston Globe_ 
and the _Boston Herald_, as well as press releases from GLAD.  A.S.L.

LESBIAN/GAY LEGAL NEWS

Egg Donor Lesbian Co-Parent Is Not a Legal Parent in California 

A California Court of Appeal panel rejected the efforts of a woman to establish parental rights for the 
children resulting from artificial insemination of her egg, which she had donated to her lesbian partner. 
_K.M. v. E.G._, 2004 WL 1048284 (Cal. Ct. App. 1st Dist., May 10, 2004).  Notwithstanding that 
the women had raised the children together as co-parents for seven years, the court determined that 
EG's intent to be the sole legal parent of the children was sufficient to thwart KM's claim under the 
Uniform Parentage Act.  Justice Mark B. Simons wrote for the court.
 
KM and EG began living together in March 1994, after dating for nine months. Six months later, they 
registered as domestic partners. Prior to meeting KM, EG had explored ways of having a child on her 
own, including artificial insemination and adoption. After numerous unsuccessful attempts at 
insemination, EG asked KM to donate her egg.  KM was unable to bear a child due to uterine 
problems.  As the court explained, EG only asked KM on the condition that KM would be a "real 
donor," meaning that EG would be the only legal mother of the children. The women discussed the 
possibility of a future adoption by KM, but EG said that she wanted to wait at least five years, when the 
relationship between them would be more stable and permanent.  EG noted that a lesbian friend was 
embroiled in a custody dispute, and insisted that she wanted to avoid such problems.  KM agreed to 
this arrangement, and did not push the issue of legal parenthood. 
 
In February 1995, EG received a copy of the egg donation form from UCSF Medical Center. The 
women reviewed the forms with each other, and attended a counseling session on February 14, 1995. 
After meeting with the counselor, KM and EG talked about what they would tell the child born from 
KM's donated eggs about his/her parents. They agreed to tell the child eventually that KM was the 
genetic mother, but agreed that EG would decide when it was appropriate to do so. They also agreed 
not to tell other people that KM had donated her egg to EG, and would only say that EG was the 
mother. On March 8, KM went to UCSF for the egg extraction procedure. At the hospital, prior to the 
procedure, KM was given a copy of the egg donation form to review and sign. After she did so, KM 
had blood drawn, which was the first step in the egg retrieval procedure. The following month, KM 
actually underwent the egg extraction process. The eggs were fertilized in vitro with sperm from an 
anonymous donor, and then four of the resulting embryos were implanted in EG's uterus. That 
procedure was successful, and EG became pregnant. She gave birth to twin girls in December 1995.
  
For the next five years, EG and KM and the twins lived together as a family. KM and EG bought a 
house together in Marin County, and enrolled the girls in preschool there.  KM was listed as a "co-
parent" on the girls's school enrollment forms, and took the children to pediatric appointments along 
with EG. The women did not reveal to the pediatrician, however, that KM was the genetic mother of 
the children. 
 
In 1998, the women began to argue about whether or how to tell the girls that they were genetically 
related to KM. EG insisted that she would never tell them this information, and that she was the girls' 
only legal mother. She reiterated that KM had no legal rights to the children without adoption. In 2000, 
KM pushed the issue of adoption, but EG resisted. The couple also disagreed about relocating to 
Massachusetts. By March 2001, the couple had separated, and EG filed a notice of termination of the 
domestic partnership. KM filed a petition to establish a parental relationship with the girls, and sought in 
part to prevent EG from taking the girls to Massachusetts.  The couple decided to try and resolve their 
differences amicably, and KM voluntarily dismissed the petition in July 2001. In August 2001, EG 
moved with the girls to Massachusetts, and continued to list KM as a parent on school forms. KM and 
EG shared the girls' educational expenses. In February 2002, KM filed a new petition to establish a 
parental relationship and sought joint custody. In her opposition papers, EG claimed that KM lacked 
standing to assert parentage. Pending trial, however, the parties agreed that KM would have visitation 
rights with the children in Massachusetts. 

The trial court found that KM lacked standing to assert parental rights because she had waived any 
claim to parentage when she signed the egg donation form. The court also found that the parties had 
agreed that EG would be the sole legal parent of the children, and nothing about the parties' 
arrangement modified that understanding. Accordingly, the trial court ruled that KM did not have 
standing to assert a claim of parentage. 

The court of appeals affirmed the trial court's decision. As an initial matter, Justice Simons found that 
KM had standing because her genetic link to the children meant that she qualified as an "interested 
person" under the Uniform Parentage Act. Turning to the merits, applying the "intention test" articulated 
in _Johnson v. Calvert_, 5 Cal. 4th 84 (1993), the court ruled that EG was the girls' only legal mother.
  
The court noted from the outset that, notwithstanding changes in reproductive technology, the 
_Johnson_ court expressly declined to find that a child can have two natural mothers. Rather, the 
woman who intended to procreate the child – that is, to bring about the birth of a child whom she 
intended to raise as her own –  is the natural mother of the child under California law. Working from this 
premise, the court then applied the _Johnson_ test to the facts before it.  The court found two facts in 
particular to be dispositive of KM's claims. First, the court noted that KM orally agreed before the 
children were conceived that EG would be the sole legal parent unless and until KM formally adopted 
the children. Second, the court emphasized that KM signed a donor consent form in advance of the egg 
donation procedure in which she expressly waived any parental rights that might have otherwise 
attached due to her genetic connection to the children born from the egg.
 
KM raised a number of arguments sounding in contract law to argue that she should not be bound by 
the donor consent form. Specifically, she asserted as defenses lack of consideration, unconscionability, 
indefiniteness, and statute of frauds. The court rejected these arguments, however, noting that "the 
ultimate determination of natural motherhood depends not upon the existence of a binding contract, but 
rather, as _Johnson_ instructs, upon the woman's intention to bring about the birth of the child to raise 
as her own." The court noted that KM knew up front that EG had wanted to be the sole legal parent of 
the child(ren), and had been attempting to get pregnant even before the two began their relationship. 
This knowledge, in the court's view, established that the parties intended that EG be the one to bring 
about the birth of the child(ren) to raise as her own.  

The court also rejected KM's attempts to minimize the significance of the donor consent form. KM 
insisted that she assumed that certain provisions about the waiver of rights would not apply to her 
because she was in an intimate relationship with the woman who would be receiving her eggs. The court 
pointed out, however, that KM never objected to the terms of the form, and in fact abided by the terms 
of the agreement by not disclosing to outsiders or to the girls themselves that she was their genetic 
mother for many years. Moreover, the trial court specifically found that the relinquishment of parental 
rights in the donor form was "clear." Therefore, despite the existence of conflicting evidence, the 
appellate court discerned no basis for disturbing the trial court's factual finding that KM knowingly, 
voluntarily and intelligently waived her parental rights. 
 
Justice Simons also rejected the argument that the women's relationship warranted a different legal 
outcome on the question of custody. Although the evidence demonstrated that the women implicitly 
agreed to raise together any child formed from KM's donated eggs, the court agreed with the trial 
court's factual finding that only EG intended to be the mother of the child, and that KM had donated her 
eggs to facilitate procreation of a child for EG. The court specifically did not reach the question of 
"whether the determination of natural motherhood in a dispute between a genetic mother and the birth 
mother always compels the selection of one woman to the exclusion of the other or whether a child can, 
in an appropriate case, have two natural mothers."
  
KM insisted that whatever the parties' intentions might have been at the time of conception, their actions 
following the birth of the girls manifested a different understanding. But the court rejected the argument 
that the parties' intention should be assessed over time and can be modified by conduct subsequent to 
the conception of the child. The court emphasized that any extension of the inquiry beyond that point 
would create too much uncertainty. Rather, "[t]he law requires a fixed standard that gives prospective 
parents some measure of confidence in the legal ramifications of their procreative actions."
  
Citing a litany of cases, the court also reaffirmed that the rule that a domestic partner of a child's natural 
mother does not qualify as a parent under the UPA simply because that partner has played a parental 
role in the life of the child.  In other words, one's functional status as co-parent does not translate into 
legal status as a parent. Furthermore, the court rejected the argument that a natural parent's decision to 
allow another person to act as a parent to a child estops the natural parent from contesting that person's 
attempt to establish legal parenthood. 
 
The court acknowledged that a decision denying KM parental rights would disserve the interests of the 
girls, who view KM as their mother. Nevertheless, the court insisted that the "best interests of the child" 
standard, which is used in custody determinations, could play no role in the determination of parentage. 
"Basing parentage on a best interests standard," the court explained, "would put at risk the rights of any 
natural parent who entered into a relationship and encouraged the formation of parental bonds between 
the children and the new partner."

KM, who was represented by the Hersh Family Law Practice in San Francisco, will likely appeal the 
decision. Shannon Minter and Courtney Joslin from the National Center for Lesbian Rights filed an 
amicus brief on her behalf. While disputing the trial court's characterization of the facts, Joslin noted that 
even those facts "support the conclusion that both [women] actually intended to function as parents to 
the resulting children. It is this intent that is relevant to the determination under _Johnson_,"  not "intent 
to be a legal parent." Such a rule, Joslin insisted, would lead to conflicting and inequitable results in 
many cases. _Sharon McGowan_

Marriage & Partnership Litigation Notes

_Federal - Minnesota_ - One of the earliest gay marriage litigants has jumped back into the fray.  Jack 
Baker, whose attempt to win a marriage license for himself and Michael McConnell led to the first 
unsuccessful judicial decision on same-sex marriage, _Baker v. Nelson_, 191 N.W.2d 185 (Minn. 
1971), app. dismissed, 409 U.S. 810 (1972), has filed a new lawsuit, according to the _Pioneer Press_ 
of May 19.  It seems that despite their lack of success in the courts back in 1971, Baker and 
McConnell had obtained a marriage license in Mankato, Minnesota and were married by a Methodist 
minister.  Now Baker and McConnell are suing the Internal Revenue Service in the U.S. District Court 
in Minnesota, claiming that they should be entitled to file an amended tax return for 2000 as a married 
couple.  Baker and McConnell had originally filed individually, but in 2003, in light of the marriage 
developments around the country, decided to attempt to file an amended return and claim a refund of 
$793.28.  This March, the I.R.S. ruled that they could not amend, citing the federal Defense of 
Marriage Act for the point that the federal government does not recognize same-sex marriages for 
purposes of federal law.  An attorney assisting Baker with the lawsuit, Larry Leventhal, told the 
_Pioneer Press_ that the legal theory of the law suit is due process under the 5th Amendment, and that 
the plaintiffs are arguing that the Defense of Marriage Act may not be used retroactively to invalidate 
their 1971 marriage for federal purposes.  In addition to demanding the right to file jointly, the plaintiffs 
seek a declaration from the court that they are full citizens who are lawfully married to each other and 
entitled to equal treatment with all other married Minnesotans.  

_Arizona_ - The Arizona Supreme Court announced on May 25 that it will not hear an appeal on the 
merits in _Standhardt v. Superior Court_, 77 P.3d 451 (Az.Ct.App., Oct. 8, 2003), in which a gay 
male couple is seeking to marry.  Don Standhardt and Tod Keltner sought a marriage license shortly 
after the Supreme Court's _Lawrence v. Texas_ ruling last spring and, upon being turned down, 
immediately filed a lawsuit, as yet unsuccessfully.  In its October 8 ruling, the Arizona appeals court 
rejected U.S. Supreme Court Justice Antonin Scalia's dissenting comment in _Lawrence_ that the 
decision opened up the way for same-sex marriage.  The court found the issues quite distinguishable, 
noting that _Lawrence_ involved a criminal statute (and that the Court's opinion in Lawrence pointedly 
observed that the decision was not passing on whether the state must recognize same-sex relationships 
in any particular manner), and that different policy questions were raised by the marriage issue.  The 
plaintiffs had been urged by gay litigation groups not to file their lawsuit, but their lawyer, Michael Ryan, 
was eager to proceed.

_California_ - The California Supreme Court heard oral arguments on May 25 on the question whether 
San Francisco Mayor Gavin Newsom had legal authority to direct the issuance of marriage licenses to 
same-sex partners in his city based on his own interpretation of the requirements of the state and federal 
constitutions.  A ruling from the court normally issues within ninety days after oral argument is held.  
Particularly implicated in the argument may be a state statute that purports to reserve to the courts the 
determination of constitutional issues and deprive local officials of invaliding existing laws based on their 
own readings of the constitution. News reports following the hearing suggested that most of the justices 
were troubled by the actions of the mayor and the city, but there was signficant concern expressed as 
well about the impact of telling several thousand couples that their marriages are invalid. _Associated 
Press_, May 26.

_California - San Jose_ - In March, the San Jose City Council voted to extend health and dental 
benefits to the same-sex partners of city employees who were married in San Francisco during the brief 
period when the clerk's office there was issuing licenses.  In a suit filed on May 13 by the Proposition 
22 Legal Defense & Education Fund and the Values Advocacy Council, the plaintiffs argued that this 
action by the city violated the state marriage law.  Jordan Lorence, a senior council for the Alliance 
Defense Fund, a litigation group that filed the lawsuit on behalf of the two organizations, stated: 
"Recognizing these attempts to redefine marriage as legal is anarchy and expresses disdain for the rule of 
law." Lorence also emphasized that the state Supreme Court had ordered a halt to the San Francisco 
same-sex marriages pending a ruling on the merits in a separate lawsuit.  David Vossbrink, a 
spokesperson for one of the defendants, Mayor Ron Gonzales, said that only one employee had applied 
for the coverage, and stated: "This is something that's fair and equitable for all our employees.  We want 
to treat all of our employees the same." _San Francisco Chronicle_, May 14.

_Florida_ - Controversial Miami lawyer Ellis Rubin filed a second same-sex marriage lawsuit on May 
12, this time a federal suit on behalf of four same-sex couples who sought him out after hearing about his 
earlier state-court suit, representing a large number of co-plaintiffs who were recruited in Miami gay 
bars.  In this suit, Rubin claims that the state's refusal to issue marriage licenses to same-sex couples, 
backed up by the federal Defense of Marriage Act (DOMA), violates the federal and state 
constitutional rights of his clients.  Invoking concepts of due process, privacy and liberty, Rubin argues 
that the state's current policy renders gay people "second class citizens." So far, the gay rights litigation 
groups have pointedly avoided filing their same-sex marriage suits in federal court, or taking on DOMA 
directly, believing that the sounder strategy has been to sue in state courts, invoking state constitutional 
guarantees (in many cases worded much more broadly than the federal equal protection clause), and to 
let DOMA challenges arise in the context of specific controversies involving denial of benefits or non-
recognition of marriages performed in other states.  But, as with his earlier marriage case, Rubin, a non-
gay man who is not affiliated with any of the gay rights litigation groups, is off on his own litigation 
crusade, avowedly in partial atonement for having been a leader in the anti-gay initiative movement in 
Florida a generation ago. _Miami Herald_, May 13.  

_Louisiana - New Orleans_ - A Louisiana state trial judge, Civil District Court Judge Louis DiRosa, 
rejected a challenge to a New Orleans ordinance that allows same-sex partners of municipal employees 
to be included in family benefits plans provided by the city, granting a pretrial motion filed by the 
defendants.  The plaintiffs, represented by the right-wing Alliance Defense Fund, argued that the 
ordinance was inconsistent with the state's mini-DOMA.  The defendants emphasized that extending a 
particular benefit is not the equivalent of marriage, and that the plaintiffs lacked taxpayer standing 
because the domestic partners policy was structured so as to cost no additional money to taxpayers.  
_Johnson v. City of New Orleans_, Louisiana Civil District Court (May 17, 2004). _Baton Rouge 
Advocate_, May 18.  

_Maine_ - The _Press Herald_ reported on May 5 that Maine Superior Court Justice Thomas 
Humphrey had ruled against a lawsuit challenging Portland's domestic partnership ordinance.  The suit 
was filed in August 2003 by several married couples who had been recruited as plaintiffs by the 
American Center for Law & Justice, a right-wing litigation organization dedicated to keeping gays in 
their place by challenging any law that might protect the civil rights of gay people as equal citizens.  In a 
decision released on May 3, Judge Humphrey found no inconsistency between the local ordinance and 
the state's version of the Defense of Marriage Act, which prohibits same-sex marriages being 
performed in Maine or the recognition of such marriages performed elsewhere. "The ordinance applies 
to the extension of limited municipal rights and benefits to domestic partners, not to the regulation of 
marriage per se," according to Humphrey. "It does not conflict with any of the state's provisions 
regarding the licensing or recognition of marriage." Humphrey found the law to be consistent with other 
Maine laws and policies that recognize domestic partners for various limited purposes, such as the bill 
that had recently been adopted by the legislature authorizing a state registry for domestic partners with 
inheritance rights and the right to control a partner's remains after death.  A Portland lawyer who served 
as local counsel for the plaintiffs, Stephen Whiting, conceded that the legislature's action "sort of took 
the wind out of our sails," and that an appeal was unlikely given the recent trend of the state legislature.

_Massachusetts_ - In what may be the first lawsuit attempting to vindicate the rights of recently married 
same-sex couples, a lawsuit was filed on May 21 in Worcester, Massachusetts, by Michelle Charron 
and Cindy Kalish, who were married earlier in the week, asserting a claim for damages for "loss of 
consortium" arising from alleged medical malpractice by defendant doctors at the Fallon Clinic, who it is 
claimed failed to order a biopsy for a lump in Charron's breast when she brought the symptom to their 
attention in December 2002, resulting in a delay in diagnosing cancer that has metastasized and 
threatens to substantially shorten her lifespan.  The suit asserts that as a spouse, Kalish is entitled to 
compensation for loss of consortium as a result of Charron's reduced life expectancy.  A major question 
in the case is whether the consortium claim can be asserted now for an act of malpractice that took 
place before the women were married, but at a time when they had long since been living together as 
domestic partners, beginning in 1992. _Boston Globe_, May 22, 2004.

_Missouri_ - In a desperate effort to prevent the notoriously activist state judiciary from ordering 
marriage licenses for same-sex couples, the Missouri legislature voted to place on the ballot a proposal 
to amend the state constitution to ban same-sex marriages in the state.  Said a proponent of the 
measure, Rep. Brian Baker, a Belton Republican, "This is not attacking anyone's lifestyle choices.  
Marriage is a distinct institution between a man and a woman.  This is important for the future of children 
and families in Missouri." Of course, Baker did not mean that this was important to protect and enhance 
the lives of children who are being raised in same-sex couple households, since they are beneath his 
notice as a traditional values Republican.  House Majority Leader Jason Crowell explained: "All 
Missourians should make that decision, not some activist judge somewhere who does it by judicial fiat 
like we've seen all across this nation." Some conservatives were disappointed that a more draconian 
measure, which would forbid giving any legal effect to civil unions, was not approved for the ballot.  
_Kansas City Star_, May 15.  There was some dispute about whether the referendum should be held in 
August or November.  On May 20, state Attorney General Jay Nixon, a Democrat, filed a suit against 
Secretary of State Matt Blunt, a Republican, seeking to compel the holding of the vote on August 3, but 
Circuit Judge Richard Callahan ruled that the secretary of state does not have to set any date at this time 
because the legislature had not yet forwarded to him the official version of the proposed amendment.  
Nixon immediately filed an appeal to the state supreme court.  According to an Associated Press report 
of May 21, Republican leaders in the legislature, determined that this should be part of the general 
election ballot in November in order to draw out more conservative voters for the Congressional and 
Presidential race, planned to hold up sending the final version of the bill to Blunt until May 28, after the 
deadline for certifying issues to include on the August ballot, when primary elections will take place for 
local offices.  The local primaries usually draw few voters. On May 21, the Supreme Court sided with 
the Secretary of State, who will delay certifying the question long enough to ensure that it will be on the 
general election ballot in November. _St. Louis Post-Dispatch_, May 22. But the court subsequently 
announced that oral argument in the matter would be held on June 1. _
Associated Press_, May 25.

_New Jersey_ - On April 13, an amended complaint was filed in _Buell v. Clara Maas Medical 
Center_, Esx-L-5144-03, a matter pending in Essex County Superior Court before Judge James 
Rothschild, adding a loss of consortium claim on behalf of Judith Peterson, the same-sex domestic 
partner of co-plaintiff Linda Henry.  (Henry is one of four employee co-plaintiffs bringing allegations 
against the employer, and the amendment added loss of consortium claims on behalf of the spouses of 
the other three employees as well as Peterson's claim.)  Henry claims that she suffered a heart attack 
attributable to stress generated by sexual harassment in the workplace, and Peterson claims that as 
Henry's partner, she should be entitled to compensation for loss of consortium, tagging on to the 
common law claims asserted in the complaint, including tortious interference with contract and 
intentional infliction of emotional distress.  (Loss of consortium claims may not be part of sex 
discrimination claims brought under the N.J. Law Against Discrimination, but must be asserted as part 
of accompanying tort claims.)  On April 23, Judge Rothschild accepted the amended complaint, and 
counsel for the company began researching grounds for a motion to dismiss.   Normally, loss of 
consortium claims are available only to spouses of litigants, but at least one state appellate court in New 
Mexico has ruled that domestic partners should also be able to claim compensation when an injury 
inflicted on their partner deprives them of the "consort, companionship, society, affection, services, and 
support" of their partner.  See _Lozoya v. Sanchez_, 66 P.3d 948 (N.M. 2003). _New Jersey Law 
Journal_, May 12. 

_New York_ - _National Review Online_ reported on May 10 that a lesbian couple united in a 
Vermont Civil Union but living in Westchester County has filed an action in state court seeking a 
dissolution of their civil union.  The reporter stated that the parties are proceeding anonymously, and 
details about their relationship or the subjects to be addressed in the dissolution proceeding have not 
been disclosed.  However, the case does present a question of first impression in New York that was 
answered negatively in Connecticut: whether the state courts have jurisdiction to dissolve a Vermont 
civil union and, if so, what body of law will be used to determine the details of the dissolution.   
Obtaining a dissolution in Vermont is a hardship for couples who reside in other states, because there is 
a residency requirement for invoking the jurisdiction of the Vermont courts over the parties.

_North Carolina_ - Durham County District Judge Craig B. Brown granted Durham County's motion to 
dismiss a lawsuit filed by Richard Mullinax and Perry Pike, seeking a license to marry each other.  In 
March, Mullinax and Pike, accompanied by their attorney and a group of supporters, went to the 
Durham County Register of Deeds, Willie Covington, and requested a license.  When it was refused, 
they crossed the street and filed suit in the District Court.  But Brown accepted the county's argument 
that a same-sex couple lacks standing to sue for a marriage license.  North Carolina law is gender-
specific on marriage.  The men vowed to refile their suit in the Superior Court.  During the hearing, held 
on May 10, Judge Brown told the lawyers that he has a "close family member" with an "alternative life 
style" as well as many gay friends, but that he had concluded that state law has a specific definition of 
marriage, and he was not free to ignore that and order that a license be issued. _News & Observer_, 
May 11.

_Pennsylvania_ – Some Pennsylvania legislators are so cowed by the idea of same-sex marriages in 
their state that passing a DOMA was not enough for them.  After a gay male couple applied for a 
marriage license at the Bucks County Courthouse, were turned down, and indicated they were thinking 
of suiting for a license, a group of a dozen legislators joined together to file a declaratory judgment 
action naming the two men as defendants, seeking judicial affirmation of the state's DOMA, a statute 
that forbids the performance or recognition of a same-sex marriage in the state.  The attorney for the 
plaintiffs, Leonard G. Brown III, said, "We want to establish the constitutionality of the law so that the 
register of wills does not have to issue a marriage license to a same-sex couple." Brown contends that 
the gay couple, Robert Seneca and Stephen Stahl, could attempt to get a Bucks County Judge to order 
the issuance of a license, and they want to preempt any such action. This sounds upside down to us; 
there is as yet no case or controversy, and one wonders about the need for an affirmative lawsuit to get 
a declaration that a law is constitutional and the standing of plaintiffs to bring it.  Seneca and Stahl 
indicated that they would wait until after marriages began in Massachusetts before filing a lawsuit. 
_Patriot News_, May 16. 

_Washington State - Seattle_ - King County Superior Court Judge Bruce Hilyer granted a motion to 
dismiss a lawsuit that had been filed against Seattle Mayor Greg Nickels by the American Family 
Association Center for Law & Policy and Liberty Counsel of Longwood, two out-of-state litigation 
groups, challenging the city's action in determining that those of its employees who enter into lawful 
same-sex marriages in other jurisdictions will be treated as married for purposes of their employee 
benefits in Seattle.  Twelve location residents were the nominal plaintiffs in the lawsuit.  According to a 
May 22 report, Hilyer found that Nickels' executive order, issued in March, "directing city departments 
to extend benefits to employees in gay and lesbian marriages, isn't in conflict with state law and doesn't 
violate the city charter," said the Associated Press.  In April, a portion of the mayor's order was ratified 
by the city council in a unanimous vote.  A.S.L.

Marriage & Partnership Legislative Notes

_Federal - Constitutional Amendment_ - At House hearings held in mid-May on the proposed Federal 
Marriage Amendment, Republican witnesses asserted that preventing same-sex marriage was necessary 
to avoid having the federal government incur billions of dollars in new expenses under various federal 
benefit programs.  Rep. Marilyn Musgrave (Rep. - Colo), chief sponsor of the amendment, argued that 
"activist judges" in the states should not be allowed to impose new expenses on federal taxpayers. 
Committee Democrats denounced these arguments, pointing out that gay and lesbian couples are also 
taxpayers and are, at present, helping to subsidize the benefits of married heterosexuals. "You don't 
save money by denying people rights in America," argued Rep. Barney Frank (D-Mass.).  Rep. Bobby 
Scott (D- Va.) argued that Congress should not be performing "a cost-benefit analysis of civil rights 
law."  _San Francisco Chronicle_, May 14.

_Alabama_ - A proposal to amend the Alabama constitution to prevent the wild-eyed, radical left-wing 
state judiciary from deciding to recognize same-sex marriages will _not_ be on the ballot November 2, 
the legislator having concluded its regular session without voting on the proposal.  However, its chief 
proponent, Gerald Allen, a Tuscaloosa Democrat with too much time on his hands, indicated that he 
would reintroduce it at the first opportunity.  Stated an opponent of the proposal, Rep. Alvin Holmes, a 
Montgomery Democrat, "The State of Alabama doesn't need to get involved in the personal life or in 
the bedroom of people." Associated Press, May 17. 

_California_ - On May 20, the California State Assembly voted 45-31 in favor of a measure that would 
amend the state's Insurance and Health & Safety Codes to bar discrimination against registered 
domestic partners by insurance providers.  A.B. 2208 was introduced by Assemblymember Christine 
Kehoe of San Diego.   The Assembly had previously voted to approve an overhaul of the state's civil 
rights laws, incorporating sexual orientation protection (which had been dealt with in a separate statute). 
* * * Although an Assembly committee has approved legislation proposed by Assemblyman Mark 
Leno to open up marriage to same-sex couples, Leno announced on May 19 that he was pulling the bill 
from further consideration in this session, but will reintroduce it next year.  A.B. 1967 made history as 
the first positive proposal to allow marriages by same-sex couples to win approval from a legislative 
committee in the U.S.   Leno decided to pull the bill because his count showed inadequate support for 
passage in this session. "The issue has far too much importance to be defeated on the floor," he told the 
_San Francisco Chronicle_ (May 19).  Leno also announced that when the bill is reintroduced, it will be 
co-sponsored by Assembly Speaker Fabian Nunez.

_Kansas_ - On May 1, the Kansas Senate approved a proposed constitutional amendment by a vote of 
27-13, exactly the required 2/3 majority.  The proposal would amend the state constitution to say that 
the state only recognizes marriages between one man and one woman, and that the rights and benefits of 
marriage may not be given to any other kind of domestic relationship, including civil unions.   One 
proponent of the amendment, Republican Senator Bob Lyon of Winchester, said, "Civil law needs to be 
consistent with biblical law.  I don't think we should sanction immorality." Thousands of Kansans 
breathlessly await Senator Lyon's forthcoming introduction of legislative proposals to revive slavery, 
require fields to lie fallow and all debts to be cancelled every seven years, and - most importantly- to 
ban the manfacture and sale of blended fabrics and non-kosher food, so that the state can truly embody 
biblical precepts in its civil law. _Lawrence Journal World_, May 2.

_Louisiana_ - On May 18, the Louisiana House and Senate each passed a version of a proposed state 
constitutional amendment to ban same-sex marriages.  Each measure had well over the 2/3 majority 
required, but they differ as to when the matter should be put to the public.  The Senate version calls for 
a special election in December, while the House version wants the vote to take place during the general 
election in November.  Said opponent Rep. Arthur Morrell, a New Orleans Democrat, "As far as I'm 
concerned this is feel-good legislation for the president of the United States to find an issue to get him 
re-elected." The House sponsor argued that it would be less expensive to hold the referendum during 
the general election, but the Senate sponsor pointed out that there is a scheduled election on September 
18 for a variety of purposes, so no additional expense would be incurred.  Difference were expressed 
over whether the proposed amendments would go beyond banning same-sex marriages to endanger 
existing domestic partnership rights enjoyed by gay municipal employees in New Orleans. _Associated 
Press_, May 18.

_Maine_ - He's Back!!!  Maine Rep. Brian Duprey, a Hampden Republican, whose proposal to 
amend the state constitution to ban same-sex marriages was rejected last year, has announced that he 
will try again next year.  Although Maine already has a Defense of Marriage Act, Duprey still considers 
the measure necessary. "I believe too strongly in the institution of marriage to sit back and allow the 
actions of a few extremist judges to radically change marriage," he told the _Portland Press Herald_ 
(May 15).  Governor John Baldacci has reiterated his strong opposition to the proposal, his press 
spokesperson stating that "his view is that the Constitution should be used to expand freedom, not 
restrict it." The Roman Catholic Diocese of Portland and the Christian Civic League of Maine, perhaps 
responding to the voluminous reported sayings of Jesus on the subject, have announced their support for 
Duprey's proposal, which would require a two-thirds vote of each house of the legislature before it 
could be submitted to the public for ratification. * * * 256Gay.com reported on May 7 that the 
legislature had approved a bill to bar recognition of same-sex marriages from out-of-state, and had sent 
it to Gov. John Baldacci for his signature, but we were not able to find any trace of this in electronic 
databases of recent Maine legislation, so the report is unconfirmed.  The report did get the name of the 
Governor wrong, so we're not certain of its provenance.
_New Hampshire_ - On May 14, Governor Craig Benson signed into law the newest mini-DOMA, a 
statute that provides that same-sex marriages performed in other states shall not be recognized in New 
Hampshire.  But this is rather a lesser mini-DOMA, since it does not enshrine in the New Hampshire 
statutes a new definition of marriage specifically as being between one man and one woman.  That had 
been included in the Senate version, but the House took it out and substituted the establishment of a 
committee to look into how state laws might be changed to allow civil unions.  Thus, this measure is 
more of a holding pattern to maintain the status quo against the eventuality that same-sex couples 
married in Massachusetts or elsewhere might come to New Hampshire seeking recognition for their 
relationship while the legislature has not finished working through where it stands on the issue.  One 
suspects that there is considerable sentiment in New Hampshire to do something similar to Vermont. 
_Associated Press_, May 14.

_New York - New York City_ - On May 5, the New York City Council voted 43-5 (with 2 
abstentions) to approve the Equal Benefits Act, a bill requiring city contractors doing business worth 
more than $100,000 with the city of New York to provide benefits to domestic partners of their 
employees on the same basis as benefits are provided to legal spouses.  Following the lead of San 
Francisco, the proponents of the New York bill agreed to modifications of their original proposal as a 
face-saving gesture to religious organizations, who can comply by extending the benefits to a member of 
the employee's household, with no need to describe or prove any particular relationship other than 
fellow residence.  Mayor Michael Bloomberg, who had supported the concept of this legislation during 
his election campaign in 2001, had promptly disavowed his support, claiming that it was inappropriate 
for the city to use its procurement powers to effect social policy.  After the Council vote, Bloomberg 
released a statement that he would veto the bill.  A council attempt to override would soon follow, and if 
substantially all who voted for the bill originally will reiterate the vote, it will pass over the mayor's veto.  
There were sounds emanating from city hall suggesting the mayor would seek to have the measure 
invalidated in the courts if it passed over his veto.  This is no idyl threat, since such measures are 
vulnerable to legal attack on a variety of theories, not least preemption by the federal Employee 
Retirement Income Security Act with respect to any benefits that are subject to federal regulation as 
"employee benefits plans," which are statutorily exempted from regulation by state or local laws.  
Although the federal appeals court on the West Coast upheld San Francisco's partnership benefits 
ordinance, the U.S. Supreme Court has not spoken on the issue, and a federal court in Maine recently 
cast doubt on substantial portions of a similar law enacted in Portland.  More developments await on 
this issue.  

_Oregon_ - The _Oregonian_ reported on May 21 that the Oregon Supreme Court had refused to 
reconsider its decision clearing the way for signature-gathering to begin on an initiative to ban same-sex 
marriages in the state.  Supporters of the proposed initiative need to collect 100,840 valid signatures 
over the space of six weeks.  Predictions were that if they succeed, a multi-million dollar media 
campaign will ensue.  Churches throughout the state were expected to circulate petitions at Sunday 
services.

_Tennessee_ - On May 6, the Tennessee House of Representatives approved a proposed state 
constitutional amendment that would define marriage as between "one man and one woman." the vote 
was 86-5, with one voting present and one not voting.  Chief sponsor Rep. Bill Dunn, a Knoxville 
Republican, said that the purpose "is to uphold one of the main pillars of our society and that is 
marriage." On May 19, the Senate voted 28-1 in favor of the measure.  This sets in motion a two-year 
process, similar to that followed in Massachusetts.  If an identically worded measure wins a 2/3 vote in 
both houses of the legislature next year, it will go on the ballot for voter approval in 2006.  The Senate 
also passed a resolution calling on the U.S. Congress to approve the Federal Marriage Amendment and 
forward it to the states for ratification.  _The City Paper_, Nashville, May 7; _The Tennessean_, May 
20.

_Washington State - Tumwater_ - The City Council here voted on May 18 to support a resolution 
opposing the Federal Marriage Amendment.  The vote was 6-0 with one abstention. A similar 
resolution was approved in March by the Olympia City Council.  The one member who abstained 
stated his view that this was an issue that was the proper concern of the state legislature, not the city 
council. _The Olympian_, May 19. A.S.L.

Marriage and Partnership Societal Notes

_Federal_ - For the first time, the 9/11 Compensation Fund has awarded compensation to a surviving 
same-sex partner who was not a testamentary beneficiary of a victim.  According to a May 6 report by 
365Gay.com, Nancy Walsh, the surviving domestic partner of Carol Flyzik, who was a passenger in 
one of the planes that was crashed into the World Trade Center, was at first rejected when she applied 
to the Fund for compensation, because Flyzik had not left a will designating her as a beneficiary.  She 
appealed that earlier ruling, represented by Jennifer Levi, formerly a staff attorney for Gay and Lesbian 
Advocates and Defenders (Boston), and New York attorney Noah Kushlefsky of Kreindler & 
Kreindler.  The amount of the award was not disclosed to the press; it covers Walsh's son, who was 
being raised jointly by both women, as well.  Previous awards to gay partners have involved cases 
where the surviving partner was designated as a will beneficiary, and thus would have been a potential 
indirect recipient of damages had the victim's estate filed a lawsuit.  The idea behind the fund was to 
provide compensation in exchange for binding commitments not to file lawsuits against the airlines whose 
planes were hijacked on 9/11/2001. _GLAD_ Press Advisory, May 6.

_California_ - Otis Charles, 78, a retired Episcopal bishop, took advantage of the availability of 
marriage licenses for same-sex partners in San Francisco by marrying Felipe Sanchez Paris on April 24 
in a ceremony at St. Gregory of Nyssa Episcopal Church in San Francisco, in the presence of several 
hundred family members and friends.  Reacting to this event and an account of it published in the _San 
Francisco Chronicle_, Rev. William Swing, the church's California bishop, declared that Charles is no 
longer an assisting bishop of the church and may not longer celebrate the sacraments there, thus relieving 
him of the right to performing weddings, baptisms, and other services.  However, bishops in the church 
are ordained for life and unless a formal process is initiated to defrock him, Charles will remain a 
member of the House of Bishops with the right to vote on matters before the House.  Charles came out 
as gay in 1993, and had previously been in a heterosexual marriage.  The dispute with Bishop Swing 
seems to revolve around nomenclature, as the San Francisco diocese has performed numerous 
ceremonies for same-sex partners; Swing objects to Charles characterizing his relationship with Paris as 
a marriage. _San Francisco Chronicle_, May 11, 2004.
_Massachusetts_ - Anticipating the beginning of marriages by same-sex couples on May 17, Local 103 
of the International Brotherhood of Electrical Workers (IBEW), in Boston, amended its employee 
benefit plan rules to exclude same-sex married couples from family coverage under health and pension 
benefit plans.  The amendment was achieved by adopting a new definition of the phrase "dependent 
spouse" to mean "a person of the opposite sex." The text of the amendment was sent in writing to all 
union members on May 7.  The trustees claim to be free to take this action because ERISA, the federal 
law regulating employee benefit plans, preempts any state law affecting employee benefits.  The question 
whether ERISA preempts state marriage law may have to be settled in court.  Some other unions, 
including other locals of the IBEW in Massachusetts, criticized the move.  Some union activitists were 
very involved in the fight to win the right to marry for same-sex couples, and participated in lobbying the 
legislature against the proposed constitutional amendment.  Other unions are more conservative, and 
there was speculation that the more conservative union benefit plan administrators may follow Local 
103's lead.  Ironically, this move comes at a time when some Massachusetts employers were 
announcing that they would be discontinuing their domestic partnership benefit plans by the end of the 
year, since same-sex couples would be able to access family benefits by marrying. _Boston Globe_, 
May 11.

_Oklahoma_ - Reacting to the legislature's decision to propose a state constitutional amendment 
banning same-sex marriages, Cimarron Equality Oklahoma, a lesbian and gay rights political 
organization, published a quarter-page display advertisement in the May 10 issue of USA Today, stating 
that the state was "going out of business" and encouraging companies thinking of locating there to "look 
hard at Oklahoma's worsening culture of intolerant exclusion." The ad showed a map of the state with a 
"Closed" sign dangling from a push-pin, according to an article in the _Tulsa World_ of May 12, which 
reported that state officials, stung by the advertisement, had roundly condemned the ad.  The governor's 
communications director criticized the ad for undermining the state's economic development efforts, and 
the author of the anti-marriage amendment, Senator James A. Williamson, a Tulsa Republican, called 
the ad "economic extortion" and "outrageous." A spokesperson for Cimarron said that the ad was 
placed in order to get the attention of the business community in Oklahoma, which stood by silently 
while the legislature was debating the proposed amendment, and noted that the amendment would affect 
all persons in domestic partnerships, not just same-sex partners. "There are many, many couples in 
Oklahoma who are 'common law,' and these partnerships would be invalid as well," said Terry 
Gatewood; "These folks need to rally as well." Gatewood observed that many big national corporations 
with operations in Oklahoma provide domestic partnership benefits. A.S.L.

Washington Appeals Court Finds Common Law Rights for Lesbian Co-Parent

Although it rejected an argument that a lesbian co-parent should be able to assert parental rights under 
the Uniform Parentage Act (UPA), a statute in force in many states, the Court of Appeals of the state of 
Washington ruled May 3 that under Washington's common law, the lesbian co-parent can be treated as 
a _de facto_ parent and seek rights of parental recognition, including a right to visitation. _In re the 
Parentage of E.B.; Carvin and Britain_, 2004 WL 938361 (Wash. Ct. App.)

The case presents the usual constellation of facts found in parental rights disputes between former 
lesbian partners, but with an unusual twist. According to her complaint, Sue Ellen Carvin and Page 
Britain were long-term domestic partners when they decided to have a child. They persuaded a gay 
male friend, John Auseth, to be their sperm donor, and Britain was inseminated and bore the child, a 
girl. During the first six years of the child's life, Carvin claims to have been  primary caretaker, as Britain 
returned to her job and Carvin cut down on her own work, taking the child to doctor's appointments 
and later to play and school obligations. 

When the relationship deteriorated, at least in part due to Britain's irritation that she was providing the 
financial support and Carvin, staying at home with the child, "enjoyed the glory of being a 'mom,'" 
Carvin claims, Britain moved out with the child, but agreed that Carvin would continue to play a parental 
role.  As sometimes happens in these situations, Britain gradually cut down Carvin's contact and finally 
cut her off entirely. The unusual twist in the case is that after Carvin filed her lawsuit seeking to assert 
parental rights and re-establish contact with her daughter, Auseth, the gay sperm donor, who was then 
living in California, gave up his job and moved back to Seattle, where he married Britain and assumed 
the active role of being the child's father. (He had not previously met the child before these events.) 
Britain then took the step of having the child's birth certificate changed to indicate that Auseth was the 
father. 

The trial judge found that Carvin had no parental rights under the UPA, and that Washington's common 
law provided no basis for her claim to legal rights as a "psychological" or _de facto_ parent. While the 
court of appeals, in an opinion by Judge Kennedy, agreed that it would be too much of a stretch to 
interpret the UPA as encompassing such claims by a lesbian co-parent who was not genetically related 
to the child, it found that the common law of Washington could be developed to take account of the 
reality of parental relationships that were created when same-sex couples had children through donor 
insemination. 

"Washington courts often have recognized that parent-child bonds form regardless of biology or statutes 
providing traditional parental rights," wrote Kennedy, discussing a variety of cases that did not involve 
same-sex couples. Kennedy also observed that there were earlier Washington court decisions that 
"have recognized the importance of the psychological bond between a child and a caretaker." Britain 
responded to these points by invoking the constitutional rights of biological parents "against unwarranted 
governmental intrusion into her parenting decisions." Kennedy responded that Washington courts have 
recognized two circumstances meriting such interference: where the parent is unfit, or where "the child's 
growth and development would be detrimentally affected by placement with an otherwise fit parent." 

In this case, Kennedy found it was appropriate as a matter of developing the common law to extend the 
second category somewhat to cover this kind of case. "Carvin does not request a determination of co-
parentage because Britain is unfit, but rather because she alleges that she is a de facto parent with whom 
the child is psychologically bonded and that it would be detrimental to [the child's] growth and 
development to deprive her of the de facto parenting relationship that was fostered with Britain's 
consent and active participation." 

Seeking support for this common law development, Kennedy cited decisions by appellate courts from 
Wisconsin, Massachusetts, New Jersey, and Pennsylvania, all of which have recognized under similar 
circumstances that a lesbian co-parent who had participated in planning for a child's birth and fulfilled a 
parental role during the child's early life should be entitled to maintain that parent-child tie, even after 
their relationship with the child's birth mother has terminated. The court did not consider it a significant 
point that Carvin had not formally adopted the child, a step that would have been available under 
Washington law. 

The court noted with approval arguments made by some friend-of-the-court briefs, that courts have 
been increasingly recognizing that children themselves have a constitutional right of association that could 
be violated by a court's failure to recognize the parental bond with a same-sex co-parent. Considering 
the cases from the other states, Kennedy wrote that the court found them to be "persuasive authority for 
the existence of a common-law claim of de facto or psychological parentage. Washington courts also 
recognize that the importance of familial bonds accords constitutional protection to the parties involved 
in judicial determinations of the parent-child relationship, including the child, whether the State seeks to 
terminate a parent-child relationship or to establish one."

While noting that courts in some other states had refused to recognize such claims by same-sex co-
parents, the court characterized those opinions as less persuasive. 

At the same time, the court of appeals found that Carvin could also make a claim under Washington's 
controversial third-party visitation statute, whose constitutionality was disputed by the U.S. Supreme 
Court in an important case that involved grandparent visitation claims. In that case, the Supreme Court 
ruled that it would violate the rights of a parent to order visitation for grandparents over the objections 
of a fit parent. Kennedy noted significant distinctions between the cases, most importantly that in this 
case Carvin, with Britain's cooperation and encouragement, had formed a parental bond and had been 
the child's primary care-giver for the early years of the child's life. In addition, the prior case did not 
involve an attempt by a parent to cut off all contact by the grandparents, but merely her determination to 
reduce the contact, which led the grandparents to seek a court order expanding their contact. Finally, 
Kennedy noted that a basis for the Supreme Court faulting the statute was the law's failure to require a 
finding as to the best interest of the child in a grandparent case. In this case, Carvin will have to prove 
that it is in the best interest of her daughter to maintain parental contact. 

Thus, the court "rehabilitated" the third party visitation statute in this case, for situations that would meet 
the objections the Supreme Court raised in the prior case. 

The court rejected Britain's demand that Auseth be recognized as the child's legal father, noting that he 
had not actually joined the case as a party or attempted to assert any legal parental claim, and that under 
the UPA, his status as a sperm donor was not determinative of his status as a father. (The UPA 
provides that a sperm donor is not automatically treated as a parent.) The court left open the question 
whether Auseth might have a right under Washington common law to seek a judicial determination of his 
parental rights at a later time. 

On the other hand, the court found that the child herself is a "necessary party" to a court proceeding to 
determine who is her legal parent, and for that purpose direct the trial court to appoint a guardian ad 
litem to represent the child's interest when the case is returned to the trial court to determine whether 
Carvin's claims to parental rights and visitation should be granted. In that proceeding, the central 
question will be whether it is in the best interest of the child for that parental relationship to be 
established in law. 

The National Center for Lesbian Rights and the Lesbian and Gay Rights Project of the ACLU played 
major roles in this case, helping to bring to the court's attention a wide array of decisions   and relevant 
expertise from around the country in support of the extension of state common law to allow co-parents 
to seek legal recognition of their parental rights. A.S.L.

California Appeals Court Finds No Child Support Obligation for Lesbian Co-Parent

A unanimous three-judge panel of the California Court of Appeal for the Third Appellate District has 
rejected an attempt by child welfare officials of El Dorado County to force a lesbian co-parent to 
provide child support for the children of her former partner. _Elisa Maria B. V. The Superior Court of 
El Dorado County_, 2004 WL 1119615, 2004 Cal. App. LEXIS 761 (May 20, 2004).  The ruling, in 
an opinion for the court by Presiding Justice Arthur G. Scotland, found that a lesbian co-parent in 
California who is not a registered domestic partner and has not adopted her partner's children may not 
be held responsible for the children's support.

Elisa and Emily, began living together in 1993 and exchanged rings to symbolize their relationship.  Elisa 
also had the Latin slogan Emily Por Vita (Emily for Life) tattooed on her arm.  They had a joint bank 
account and pooled their resources for household expenses, according to Scotland's opinion.  Both 
women wanted to experience pregnancy and child birth, so they went together to a fertility clinic and 
obtained sperm donations from the same anonymous donor.  Elisa became pregnant in 1996 and gave 
birth to a son in 1997.  Emily became pregnant after Elisa and bore twins in 1998.  Before the children 
were born, Emily and Elisa agreed that Emily would stay home to take care of the children and Elisa, 
who had a larger income, would continue to work to support the family.  After the children were born, 
the women agreed on naming them and gave them hyphenated surnames to combine their own names.  
They each considered all three children to be their children.  However, the year after the twins were 
born, the relationship went sour.  

Although the women had talked with a lawyer about adoption, they had never formalized that process.  
They separated in November 1999, with Emily and the twins remaining in the house (which Elisa 
owned), and Elisa promising at that time to provide some ongoing financial support.  In May 2001, Elisa 
informed Emily that she was no longer working full-time and could not afford to continue financial 
assistance to Emily and the twins.  Shortly after, Emily filed for public assistance, and El Dorado County 
decided to go after Elisa for child support payments.

The County successfully persuaded Superior Court Commissioner Gregory Ward Dwyer to hold Elisa 
responsible for supporting the twins.  Relying on _Johnson v. Calvert_, 5 Cal.4th 84 (1993), a case 
involving surrogate parenting, Commissioner Dwyer found that Elisa and Emily had intended for Elisa to 
be a parent of Emily's twins, and having acted consistently with that intent, Elisa should be considered a 
parent under California law and thus have the support obligations of a parent.  Alternatively, Dwyer 
accepted promissory estoppel and equitable estoppel arguments, holding that Elisa could not deny her 
parental status because of her agreement before the children were born that she would work full-time to 
support the family while Emily stayed home to take care of the children.

Elisa appealed the ruling, and the court of appeal rejected all of the grounds that the Superior Court had 
relied upon, reversing its ruling.

Sullivan observed that California courts have consistently rejected the argument that a lesbian co-parent 
can be considered a legal parent under California's version of the Uniform Parentage Act, which limits 
parental status to a birth parent or an adoptive parent.  In _Johnson v. Calvert_, the court was faced 
with determining parental rights as between the woman whose egg had been fertilized and the surrogate 
mother who had undergone the pregnancy after embryo implantation and given birth to the child.  In that 
case, the court held that the intention of the all the parties when the process began was for the surrogate 
mother to have no parental status, and for the egg donor and her husband to be the legal and actual 
parents.  Under California's version of the Uniform Parentage Act (UPA), a child can have only one 
"natural mother" (that is, a mother by birth), and the court held that the intention of the parties dictated 
that the person who was intended to be the mother and was biologically related to the child as the 
source of its genetic heritage was the legal mother.

This case, observed Sullivan, was quite different. "Here, Elisa has no genetic consanguinity with the 
twins, she did not give birth to them, and she has not adopted them.   In contrast, Emily conceived the 
twins by artificial insemination and gave birth to them with the intent of raising them as her own.  
Accordingly, Emily is the natural mother of the twins – a fact that neither she nor Elisa has disputed – 
and Elisa has no legal maternal relationship with the children under the UPA because 'for any child 
California law recognizes only one natural mother,'" Sullivan wrote, quoting from _Johnson_.  
Furthermore, Sullivan accepted Elisa's common sense argument that because California law would give 
her no right to seek custody or visitation, it should impose no obligation of support.

Turning to common law arguments, Sullivan noted that Elisa had never specifically promised Emily prior 
to her insemination or the twins' birth that Elisa would support the twins no matter what happened to the 
women's relationship.  Emily had tried to invoke promissory estoppel, testifying that she would not have 
become pregnant had there not been an understanding between the women that Emily was to be a co-
parent and provide support for the resulting children.  But the court rejected this argument, finding that 
Elisa had never expressly promised to provide support in the event of a break-up of the relationship.   
Given the state of California law involving lesbian co-parents in the mid-1990s, Sullivan found that it 
would not have been reasonable for Emily to rely on Elisa's alleged promises, and reasonable reliance is 
an essential component of a promissory estoppel claim.

The court of appeal also rejected the county's attempt to use an alternative theory of equitable estoppel, 
which the court described as a defensive theory that is used to prevent a person from asserting a right 
where his conduct or silence makes it unconscionable for him to assert it.  But here, Sullivan found, Elisa 
was not asserting a right, so equitable estoppel could not be used against her in the case. "Emily and the 
County are attempting to use the doctrine offensively to establish a parental obligation of child support 
where the law does not otherwise impose such an obligation.  Under the circumstances, it is doubtful 
that equitable estoppel applies," Scotland wrote. 

The court's opinion applies only to situations where lesbian co-parents have not taken steps to establish 
legal parental relationships with their children.  Last summer, in _Sharon S. v. Superior Court of San 
Diego County_, 73 P.3d 554, 2 Cal.Rptr. 3d 699 (2003), the California Supreme Court resolved all 
doubts on the matter by holding that the courts could approve adoptions by same-sex co-parents.  Such 
adoptions have been approved by some lower courts for more than a decade, but their status was 
always somewhat questionable due to the lack of a firm precedent from the highest court.  Since last 
summer, any same-sex couple seeking to qualify both co-parents as "parents" under the UPA can seek 
an adoption decree.  Furthermore, beginning January 1, 2005, California's newly expanded domestic 
partnership law, signed last fall by Governor Davis shortly before he was ousted by Arnold 
Schwarzenegger, will go into effect, bringing new parental status to co-parents who are registered 
partners.  Neither of these legal developments, however, could change the outcome in the case of Elisa 
and Emily, since they were not registered partners, a status that did not exist under state law at the time 
the children were born, and Elisa never attempted to adopt Emily's twins.  A.S.L.

Coast Guard Appeals Court Affirms Sodomy Conviction; Defers Challenge to Article 125

In _United States v. Abdul-Rahman_, 2004 WL 1078122 (U.S. Coast Guard Court of Criminal 
Appeals, May 14, 2004), the court affirmed the conviction of Shams Abdul-Rahman, a male sailor, on 
a variety of charges of misconduct while on board a Coast Guard vessel, including one count of sodomy 
with a female cadet.  On appeal, Abdul-Rahman contested the sodomy charge, arguing that Article 125 
of the Uniform Code of Military Justice (UCMJ), which forbids sodomy, is unconstitutional in light of 
the U.S. Supreme Court's decision in _Lawrence v. Texas_, 539 U.S. 558 (2003). 

Writing for the court, Chief Judge Baum rejected the argument, ruling that the Coast Guard appeals 
court is bound by precedent set by the Court of Appeals for the Armed Forces, which has not yet 
considered the sodomy provision in light of _Lawrence_, and also because the facts and circumstances 
of the case were distinguishable from those in _Lawrence_. 
 
Abdul-Rahman had been charged with eight "specifications" (counts) involving a variety of acts while 
onboard the Coast Guard Cutter Rush.  Some involved "sexually explicit conduct," one was for 
possession of alcohol on board vessel, one was for trespass to a women's berthing section of the 
vessel, and two were for "indecent acts with another." Abdul-Rahman pled guilty and was sentenced to 
confinement for 180 days and a bad conduct discharge, but apparently reserved the right to appeal.
 
With regard to the sodomy count, Abdul-Rahman argued on appeal that Article 125 of the UCMJ, 
which forbids private consensual sodomy between adult members of the U.S. Armed Forces, was 
unconstitutional in light of _Lawrence_.  Amazingly, this court ruled that "notwithstanding decisions of 
the Supreme Court directly bearing on issues before this court, we are bound to follow precedents set 
by our higher court,  the Court of Appeals for the Armed Forces (CAAF), until such time as that court 
deems its precedent modified by the Supreme Court."  The CAAF had ruled that Article 125 was 
constitutional in 1992, in light of _Bowers v. Hardwick_, a case that was overruled by the Supreme 
Court, apparently with retroactive effect, in _Lawrence_.  But apparently the U.S. Supreme Court is 
not the highest court in the land, after all – at least, not in the military.
 
In any event, the court ruled, _Lawrence_ is distinguishable.  The Supreme Court emphasized in 
_Lawrence_ that the case did not involve public conduct, and that the Texas Statute furthered no 
legitimate state interest that could justify intrusion into the personal and private life of the individual.  In 
contrast, first, Abdul-Rahman stood accused of conduct which occurred in the women's berthing area 
of a Coast Guard vessel, a place he was not entitled to be and where other women were present, 
making it difficult to "find any semblance of privacy, much less implicate privacy interests."  Second, 
even if the conduct in question were private, the Coast Guard had a legitimate military interest that 
would justify its intrusion into any sexual acts aboard a Coast Guard vessel, said Baum, without 
specifying what those interests were.  Third, Abdul-Rahman also pled guilty to unlawful entry into that 
part of the vessel.  Fourth, under the record before the court, it was not altogether clear that the conduct 
in question was not "by force and without consent," even though Abdul-Rahman ultimately pled guilty to 
a charge of consensual sex.  
  
Would there be good reason to find Article 125 unconstitutional, at least as applied to consensual, adult 
sex conducted in a private space?  That, the court ruled, was a question for the Court of Appeals for 
the Armed Forces, but probably not on the facts of this case. _Steven Kolodny_

Federal Court Denies Injunction in Student Harassment Case

A federal judge has refused to issue a preliminary injunction against a local Iowa school district and a 
police officer sued by a senior high school student for alleged violations of the student's rights under the 
First Amendment, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and 
Title IX of the Education Amendments of 1972. _Doe v. Perry Community School District_, 2004 WL 
965932 (S.D. Iowa, Apr. 29).  The student, who claims to have been subjected to more than three 
years of student harassment on the basis of his perceived sexual orientation, and who, together with one 
alleged harasser, was arrested and briefly suspended after a May 2003 brawl on school property, 
sought to enjoin the defendants from "taking any adverse action" against him in response to his 
"speaking out in the halls of the school in protest against hate-based discrimination or threats." District 
Judge James E. Gritzner concluded that while Doe had demonstrated "some likelihood of success on 
the merits" of his Title IX claim (in which he alleged that the defendants were deliberately indifferent to 
his claims of student harassment), he had failed to do so concerning his First Amendment claims at the 
heart of the requested injunction. 
 
Doe, an 18-year-old senior at Perry High School located in Perry, Iowa, was an active student and a 
member of the school football and wrestling teams until last year when, because of alleged ongoing 
harassment by his classmates and demeaning treatment by teachers and administrators due to his 
perceived sexual orientation, he no longer felt safe at school and decided to complete his education at 
home. According to Doe, student harassment over the years consisted of persistent name-calling, 
threats, and occasional physical assaults, including being urinated on by other students in the shower 
room. Doe claims that school teachers and administrators did not take action in response to his 
complaints, telling Doe instead to "get tougher skin," "get used to it," and "grow up." 
 
One altercation at the heart of Doe's claims took place on May 8, 2003, at the end of Joe's junior year. 
Doe heard that another student had publicly called him a "pussy" and "fucking queer" and had 
threatened him with violence. Doe reported the incident to Police Officer Jerry Jans (the School 
Resource Officer) and sought Jans' advice. Jans allegedly told Doe he could either ignore the threats or 
confront the other student in public to make the student "look bad." Doe confronted the student in the 
hall between classes, following the student as the student walked away reiterating anti-gay epithets and 
threats of violence. The student eventually pushed Doe, and a scuffle ensued resulting in minor injuries. 
After two teachers separated the students, they were suspended for three days and arrested for 
disorderly conduct. The charges against Doe were later dismissed. 
 
Doe and his parents filed discrimination complaints with the school district. The compliance officer who 
investigated the complaint determined that it was "inconclusive." (The court found that there were flaws 
in the investigation of the incident by school administrators, but ruled that these flaws were not relevant 
to Doe's motion for a preliminary injunction.) 
 
Doe filed a complaint against the school district and its superintendent; the school principal and 
associate principal; the City of Perry and Officer Jans, alleging violations of 42 U.S.C. sections 183, 
1985 and 1986 and Title IX. Doe simultaneously filed a motion for a preliminary injunction. After a 
two-day factual hearing, Judge Gritzner issued a lengthy decision denying Doe's request for interim 
injunctive relief. 
 
In casting doubt on Doe's First Amendment claims, the court concluded that the school took action 
against Doe not in response to anything he said, but in response to what he did: "The Court finds 
Plaintiff has failed to make the required showing that the disciplinary actions stemming from the May 8 
altercation were intended to interfere with his First Amendment rights...[Doe] did more than merely 
speak out. He was also witnessed pushing his alleged harasser, and in fact Doe himself stated he pushed 
the other student at least three times, though characterized as in defense. The evidence indicates that the 
District officials' response and that of Officer Jans was based on the conduct of fighting, and not as a 
way to punish Doe for speaking out against harassment or to restrain Doe in the future from speaking 
out."  Gritzner similarly ruled that Doe failed to demonstrate a likelihood of success on the merits of his 
state law false arrest claim, since the arrest occurred in response to a fight in which Doe conceded he 
participated.  
 
Doe's Equal Protection and Due Process claims fared no better, given the court's interpretation of the 
facts. Although the court cited with apparent approval a Seventh Circuit case (_Nabozy v. Podlesny_, 
92 F.3d 446) in which the Court of Appeals found that a school district's failure to protect a student 
from student-on-student harassment based on sexual orientation was constitutionally prohibited, Gritzner 
found the facts of _Nabozy_ to be particularly "outrageous and egregious" and "severe." By contrast, 
Gritzner concluded that while "Doe has made credible assertions that he has been subjected to 
numerous incidents of harassment, threats, and physical assaults over a period of more than three years, 
the current record is insufficient to find a likelihood of success on the merits of his equal protection 
claim." The court appeared partially persuaded by evidence that unlike in _Nabozny_, Doe's school 
responded to his complaints - by segregating him from the rest of the student body for his own 
protection. The court credited testimony "that Defendants tried to prevent harm from befalling Doe by 
limiting his interaction with fellow students to supervised, classroom settings. At some point, Doe was 
allowed to move between classes at times when the hallways were clear and eat lunch in isolation in 
order to avoid students that could harass or attack him." 
 
Under Title IX, a student can state a claim for monetary damages by alleging that the school district 
intentionally failed to intervene to end harassment against a student - if the harassment is so severe, 
pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational 
opportunities or benefits provided by the school. Judge Gritzner indicated that while Doe has 
demonstrated some likelihood of success on the merits on this claim, he "may have some difficulty in 
proving intentional discrimination or deliberate indifference." Ultimately, the court ruled that the issue 
was not relevant to the preliminary injunction, which focused on First Amendment issues only. 
 
Gritzner appears to recognize the very real impact harassment has had on Doe, explaining, "The current 
record supports a conclusion that Plaintiff is suffering harm by not having a safe learning environment at 
Perry High School and will continue to suffer harm by not feeling sufficiently safe to attend school with 
his classmates. Doe will be further harmed if he does not participate in the upcoming activities related to 
graduation."  Nevertheless, in reading the court's decision, and all the inferences the court seems willing 
to draw in favor of the defendants, one gets the sense that Judge Gritzner intends to set the bar quite 
high for Doe to prevail on the merits of his claims. 
 
Robert Montgomery represents Doe.  Kirks Quinn represents Perry Community School District. Harry 
Perkins III represents the City of Perry. _Ian Chesir-Teran_

Federal Civil Litigation Notes

_Federal - 6th Circuit - Ohio_ - In an unofficially published per curiam opinion, a panel of the U.S. 
Court of Appeals for the 6th Circuit affirmed the dismissal of sex and perceived disability charges 
brought by a transsexual person under Title VII and the ADA against a private sector employer. 
_Johnson v. Fresh Mark, Inc._, 2004 U.S. App. LEXIS 9997 (May 18, 2004).  Selena Johnson is 
described in the court's opinion as a "pre-surgical transsexual woman." Her driver's license indicates 
that she is male.  She presented herself to Fresh Mark, Inc., as a woman at the timed she was hired.  
When the company received complaints that Johnson was using both the men's and women's 
restrooms, the employer told her she could not return to work without a doctor's note indicating 
whether she was male or female and whether there was any reason she should be using the restroom 
designated for the opposite gender.  Johnson went to an attorney, who sent a letter to the employer 
stating that she was "not entirely male nor entirely female" and that it was most appropriate for her to 
use either a women's room or a unisex facility.  But the employer decided that the sex indicated on her 
driver's license - male - was her legal sex, and directed that she could use only the men's room.  She 
refused to return to work under such conditions, and was discharged after three days of absence for 
violating the company's attendance policy.  In her discrimination claim, she relied heavily on the sex-
stereotyping theory of sex discrimination derived from the Supreme Court's decision in _Price 
Waterhouse v. Hopkins_, 490 U.S. 228 (1989), but the district court granted the employer's motion to 
dismiss, finding that _Price Waterhouse_ was inapplicable to the facts as pleaded in the complaint, and 
that the ADA specifically excludes "transsexualism" as a disability.  The circuit court affirmed without 
further explanation, referring readers to the district court's opinion, where the reasons for judgement are 
"fully articulated." Of course, the district court's opinion is unpublished and could not be found on either 
Westlaw or Lexis.

_Federal - California_ - The National Center for Lesbian Rights reports that U.S. District Judge Phyllis 
Hamilton (N.D.Cal.) ruled May 3 in a case filed by NCLR that Adoption.com, a website that facilitates 
adoptions, is subject to the jurisdiction of California law.  NCLR filed suit on behalf of a same-sex 
couples from San Jose, Rich and Michael Butler, who were rebuffed by Adoption.com when they 
sought to use the service to locate a potential adoptive child.  A spokesperson for the company stated 
that Adoption.com does not allow gay and lesbian couples to use their services.  The plaintiffs argue that 
this violates California law, forbidding businesses that provide goods and services to the public from 
discrimination on the basis of sexual orientation.   In rejecting the defendants' motion to dismiss the 
case, Judge Hamilton wrote, "Here, the burdens posed on defendants - allowing same sex couples to 
be listed on their websites - do not clearly exceed the benefits, which include providing prospective birth 
mothers with a greater number of potential adoptive parents from which to choose, possibly leading to a 
greater likelihood that children will be placed in a stable home."    Trial on the merits is yet to be held in 
_Butler v. Adoption.com_.  

_Federal - Florida_ - The National Center for Lesbian Rights and Equality Florida have announced a 
settlement in _Youngblood v. Hillsborough County School Board_, a case that stemmed from the 
school's refusal to allow Nikki Youngblood, then a senior at Robinson High School, to depart from the 
"dress code" prescribed from the girls in their yearbook portraits.  The strict code said that the boys 
would wire jackets and ties, and the girls would wear an ultra-feminine scoop neck drape.  Nikki 
preferred to wear a formal shirt and jacket, not the stereotypical feminine garb, and her insistence led to 
her being excluded from the yearbook.  A federal district judge dismissed the case, which was appealed 
to the 11th Circuit. The Circuit ordered mediation, which at first proved unsuccessful, so the case was 
restored to the argument calendar and argued before the court.  After the argument, the parties agreed 
to try mediation again, and this time reached a settlement, so the 11th Circuit will not be issuing an 
opinion.  Under the settlement, the school will henceforth allow deviations from the strict dress code for 
senior portraits in the yearbook.  NCLR staff attorney Karen Doering, who is also a legal consultant for 
Equality Florida and who represented Youngblood, expressed satisfaction that in future school officials 
"will be more reluctant to create such dress codes" and that students like Nikki "will now have a clear 
remedy."   NLCR/Equality Florida Press Release, May 7, 2004.

_Federal - New York_ - U.S. District Judge Constance Baker Motley granted summary judgment to 
Deutsche Bank, disposing of claims of race and sex discrimination and retaliation by Farouk Soliman, an 
Egyptian-American who claimed his gay white male supervisor was subjecting him to sexual harassment. 
_Soliman v. Deutsche Bank_, 2004 U.S. Dist. LEXIS 9087 (S.D.N.Y., May 20, 2004).   Soliman was 
discharged when the Bank determined that his intimate relationship with a female subordinate was in 
violation of Bank policies.  Soliman claimed that he had been set up because he had rejected sexual 
advances from his male supervisor and had protested about the hostile environment created by the 
supervisor to other bank officials.  In reviewing the factual allegations of both parties, Judge Motley 
found that Soliman's case was based on stray remarks and ambiguous statements and actions that a jury 
was unlikely to find would constitute the kind of pervasive mistreatment characteristic of a sexual 
harassment case.  She also found that Soliman's attempt to make out a race discrimination case by 
comparing his situation to other bank employees engaged in romantic relationships was unavailing, given 
factual distinctions – most significantly, that Soliman's relationship was with somebody over whom he 
had an on-going supervisory relationship, which the bank found had been abused when he offered to let 
his girlfriend revise her written work evaluation before it was submitted to upper management.  The 
relationship was first discovered when auditors questioned certain taxi expenses involving the two 
employees.  Soliman's allegations regarding his supervisor suggest that Soliman felt uncomfortable 
working with an openly gay man who was somewhat physically demonstrative and a bit intrusive in 
dealing with a handsome male subordinate, but Judge Motley found that his description of the 
supervisor's conduct did not cross the line into harassment.   

_Federal - Pennsylvania_ - Senior U.S. District Judge Herbert Hutton ruled that Sandra L. Knight, a 
lesbian employee of the National Park Service, should by allowed to pursue sex, disability and 
retaliation claims against her employer, arising from incidents while she was working at National Historic 
Park in Philadelphia, the site of Independence Hall and the Liberty Bell. _Knight v. Norton_, 2004 WL 
1146657 (E.D.Pa., May 19, 2004).  Hutton ran into problems when the Office of Personnel 
Management, which was reviewing her background check questionnaire, decided that she had not been 
truthful with respect to some of the questions.  Hutten ended up suffering various consequences to her 
career without being given any opportunity to respond, which she believed stemmed from her race, 
sexual orientation, and disability (she suffered from some debilitating conditions, in part due to injuries 
suffered while serving in the Navy).  She adduced testimony showing some anti-lesbian prejudice, 
including a comment by a supervisor, referring to her, that "If you let one in, it opens the door for a 
dozen more." Although Judge Hutton concluded that the factual allegations failed to support a race 
discrimination charge, he denied the government's motion for summary judgment on the other charges, 
finding that there were material factual issues as to each, and that Knight had alleged the requisite 
elements of a prima facie case. A.S.L.

State Civil Litigation Notes

_California_ - In _Martin v. Los Angeles Unified School District_, 2004 WL 928182 (Cal. Ct. App., 
2nd District, April 30, 2004) (unpublished disposition), the court held that in a hostile environment sexual 
harassment case brought by a male employee based on the actions of a male supervisor, it was not 
necessary for the plaintiff to prove that the supervisor was gay, and the lower court erred by dismissing 
his claim based, in part, on the lack of evidence about the supervisor's sexual orientation.  Referring to 
the supervisor, Judge Aldrich wrote for the court: "Whether Burke was homosexual is irrelevant. 'A 
cause of action for sexual harassment in violation of the FEHA may be stated by a member of the same 
sex as the harasser, whether based on the quid pro quo theory or the hostile environment theory or a 
hybrid of both theories.' . . . The Mogilevsky Court rejected the argument that allowing a cause of 
action under the FEHA for same gender sexual harassment would 'make an inquiry into the sexual 
orientation of the male supervisor an absolute necessity.' . . . The court explained, 'the focus of a cause 
of action brought pursuant to the FEHA is whether the victim has been subjected to sexual harassment, 
not what motivated the harasser.'  Given that the harasser's motivation is irrelevant, the lack of evidence 
of Burke's sexual orientation cannot serve as a ground for granting summary judgment here." The 
appeals court also disagreed with L.A. Superior Court Judge Malcolm H. Mackey about whether 
Martin had alleged sufficiently severe and pervasive harassing conduct to state a claim, finding that a 
reasonable jury could have ruled in his favor.  However, the court did uphold summary judgment on 
some of Martin's claims against the school district as distinct from claims against supervisor Burke, 
finding that he had not been discharged in violation of the FEHA, although his retaliation claim with 
respect to job assignments and promotion might have merit.

_New York_ - A panel of the N.Y. Appellate Division, 2nd Dept., ruled on May 10 in _Bantum v. 
American Stock Exchange_, 2004 WL 1067575, that a stock broker's attempt to assert a racial and 
sexual harassment discrimination claim against another broker under the New York State and City 
Human Rights Laws is preempted by the federal laws regulating the operation of the securities markets.   
The court found that when Congress established the Securities and Exchange Commission to enforce 
the Securities Exchange Act, it intended to confer upon the Commission the sole jurisdiction to oversee 
the operation of the self-regulating securities exchanges.  The court noted that the American Stock 
Exchange, to which Ms. Bantum originally brought her complaint, had instituted an investigation, but 
Bantum complained that the Exchange and its officers had aided and abetted the other broker's sexual 
harassment and encouraged retaliatory conduct from other members of the AMEX by failing to conduct 
a proper and thorough investigation.  Too bad, said the court, since the state courts have no jurisdiction 
to entertain Bantum's suit under state or local law.

_Oregon_ - In _Kerr v. Bradbury_, 2004 WL 955830 (Ct. App. Ore., May 5, 2004), the court found 
that a proposed ballot question intended to establish that "sexual orientation shall not be taught in 
Oregon public schools in a manner that would express approval of, promote or endorse the behaviors 
of homosexuality or bisexuality" was defective in that it did not include the text of the state's education 
statutes as they would read if the proposed amendments were approved by the voters.  The court found 
that state law requires that proposed changes to existing laws be presented to the voters in the 
appropriate context so they can properly determine whether they want to approve the effect that the 
question would have on overall law.  The opinion for the court by Presiding Justice Landau presents a 
lengthy history of the Oregon referendum and initiative process that could provide useful reading for 
anybody seeking to change or preserve existing Oregon law through that process.
_Pennsylvania_ - Sitting en banc, the Commonwealth Court of Pennsylvania has reversed a decision of 
the Workers' Compensation Appeal Board and denied benefits to a miner who claimed to have 
suffered severe psychic injury as a result of unwanted homosexual harassment from a co-worker. 
_RAG (Cyprus) Emerald Resources, L.P. v. Workers' Compensation Appeal Board (Hopton)_, 2004 
Pa. Commw. LEXIS 404 (May 25, 2004).  Ron Hopton is a Vietnam War veteran who claims to have 
been subject in the service to unwanted sexual attentions from a superior officer that contributed to the 
post-traumatic stress disorder he suffered after leaving the service.  While later working as a miner, he 
experienced three incidents of "homosexual harassment" at the hands of a co-worker, which led him to 
suffer severe distress.  The Workers Compensation Judge who heard the testimony concluded that 
Hopton made out a good case, finding that the incidents "were not normal joking or merely uncivil 
behavior but were a course of conduct persisted in and clearly calculated to cause severe emotional 
distress on the part of the claimant and Mr. Rossi was successful in doing this." Under Pennsylvania law, 
a workers comp claim based solely on emotional distress has to be predicated on abnormal working 
conditions, which the Judge found to be present, as did the Appeal Board.  But the Commonwealth 
Court disagreed, in an opinion by Judge Bernard L. McGinley, which emphasized the "rough and 
tumble" nature of the mines. Two of the judges dissented, rejecting the proposition that such harassment 
could or should be considered "normal," and criticizing the majority for substituting its findings and 
judgments for the hearing judge and expert appeal board.  A.S.L.

2nd Circuit: "White Jewish Gay Male" State Employee Set Forth Discrimination Claim on Which Relief 
Could Be Granted; Summary Judgment for Supervisors and DMV Overturned

An administrative law judge in the Ha rlem office of the New York State Department of Motor 
Vehicles, described by the court as "a white, Jewish gay male," presented a prima facie case of illegal 
employment discrimination, so defendant-employers, supervisors, and the DMV should not have been 
granted summary judgment, according to a decision by the U.S. Court of appeals for the 2nd Circuit. 
_Feingold v. State of New York_, 2004 WL 916629 (April 30, 2004).  The decision of a three-judge 
panel is attributed to Judge Fred I. Parker, who died on August 12, 2003, and had completed a 
substantial portion of the opinion before his death; it is issued "in his memory." 

Although Larry Feingold alleged discrimination based on race, religion, and sexual orientation, the court 
stated no opinion on his likelihood of success on the merits of the sexual orientation claims. The court's 
focus is on the blatant anti-Jewish discrimination, and the less-blatant anti-white discrimination, alleged in 
the complaint.  Nonetheless, the court mentions the sexual orientation of all parties in the suit, if it is 
known.  For example, some of the defendants were: "Judge Kathleen Sullivan, a white, Christian, 
heterosexual female," "Sharon Lee-Sang, a black, Christian, heterosexual female; Fernando Tapia, a 
black, Christian, heterosexual male; Evelyn Waltrous, a black, Christian, heterosexual female", and 
Phyllis Isaacs, "a black, Christian, heterosexual female."

Blatant anti-Jewish behaviors included referring to Feingold by other Jewish-sounding names, such as 
Feinstein, Goldman, Silverman, and Feinberg, in a negative tone. Unfavorable remarks about Jewish 
people were common, and Christian prayer circles were a regular feature of the office.  Racial 
discrimination was evidenced by allegedly divergent treatment given to black and white ALJs: lighter 
workloads for blacks, better training for blacks, more leniency for lateness and other infractions granted 
to blacks than to whites, according to Feingold. 

According to Feingold, hostile attitudes toward homosexuals also "pervaded the office." Specifically, 
Feingold alleged that the words "fag" or "faggot" were used in his presence at least three times, a fellow 
ALJ advised Feingold not to be too "openly gay," and another ALJ made at least three hostile 
references to Feingold's sexual orientation.  After Feingold's termination, he learned that a clerk 
referred to him as "that faggot judge" in the public area of the office.

Feingold had complained about his treatment to the overall supervising ALJ, Leon Schulgasser, a "white 
Jewish male" who worked in the Brooklyn office. 

After an incident in which, allegedly, Feingold improperly dismissed a case, displayed anger in the 
hearing room, went to the library where he caused a glass door to break, and went back to the hearing 
room where he used an expletive while continuing to display anger, Feingold was fired on June 13, 
2000, based primarily on Schulgasser's recommendation, after discussing the matter with Feingold's 
supervisors.

The district court found that the incident described above provided a non-discriminatory reason for 
firing Feingold, that treatment by black colleagues may well have been because they did not like him, 
rather than because of his race, that anti-gay slurs were merely sporadic, and that Feingold did not show 
that anti-Semitic remarks interfered with his work.  _Feingold v. State of New York_, 2002 WL 
1751098 (S.D.N.Y. July 26, 2002).  Therefore, the district court granted summary judgment to the 
defendants.

The appeals court upheld some of the summary judgments on Feingold's charges against the state based 
on Eleventh Amendments grounds.  The state had not consented to being sued under 42 U.S.C. §1983, 
or under the New York City's discrimination ordinance and, therefore, could not be sued as an entityfor 
damages.  However, his allegations of civil rights violations under Title VII of the Civil Rights Act of 
1964 did state causes of action for which relief could be granted. The court of appeals, therefore, 
reversed the district court to allow the case to proceed to trial

The appeals court, in a de novo review, found significant evidence that, based on Feingold's race and 
religion, he had suffered a hostile work environment, discriminatory workload, and wrongful termination.  
Actions of his co-workers were attributed to his employer, the DMV, because Feingold had informed 
his supervisors of the problems. Therefore, the DMV was implicated in the unlawful discrimination, and 
could be sued under Title VII.

The appeals court ruled that a trier of fact could find the non-discriminatory reasons for Feingold's firing 
to be a pretext, because other ALJ's had engaged in similar conduct without being reprimanded, and 
certainly not terminated.

The appeals court upheld claims against individual defendants under both the city and state human rights 
laws, and under section 1983. Clams under the First Amendment alleging that Feingold was the victim 
of retaliation for speaking up about discriminatory conditions were also allowed to proceed to trial.

Although the decision is not based on anti-gay discrimination, it provides guidance to employment law 
litigators on the level of evidence needed to state a case that a purported reason for discipline and 
termination is a mere pretext, and that the true reason is illegally discriminatory.

_[Postscript: Two days before this decision was handed down, Larry Feingold was convicted of 
reckless endangerment for causing a gas explosion in his Stuyvesant Town apartment. The explosion, 
occurring on Feb. 4, 2003, injured eight people, and blew out the walls and windows of his apartment. 
Feingold, who had gone on to become an ALJ for the city's Environmental Control Board, was 
attempting suicide after his lover left him. At trial, Feingold testified that he was not aware that kitchen 
gas could cause an explosion. Justice Jeffrey Atlas, who convicted Feingold in a non-jury trial, stated 
that he would have liked to acquit Feingold because he did not show "depraved indifference," but that 
he was bound by precedent to find Feingold guilty.  Feingold will lose his law license because of this 
conviction.  He will be sentenced on June 30, 2004.  Source: _NYLawyer.com_.] _Alan J. Jacobs_

Illinois Appeals Court Reverses Conviction for Oral Sex Due to Erroneous Admission of Past Crimes 
Evidence

The Appellate Court of Illinois reversed the conviction and seven year jail sentence imposed on Kevin 
W. Stanbridge on charges of aggravated criminal sexual abuse, finding that the trial court improperly 
allowed the state to introduce evidence that a decade prior to the events in question, Stanbridge had 
been involved in two incidents of attempting to initiate oral sex with 14-year-old boys.  In the case at 
hand, the complaining victim was a 14-year-old boy. _People of Illinois v. Stanbridge_, 2004 WL 
1053001 (Ill. App. 4th Dist., May 4, 2004).

Writing for the court, Justice Cook related that Stanbridge, a divorced truck driver with three children, 
was friendly with Robert Eddy, the father of J.R.E., age 14.  Eddy, his wife and son had visited for 
extended periods of time with Stanbridge, his wife and children when Stanbridge was still married.  On 
Friday, November 26, 1999, Stanbridge invited Eddy and his son to come to Stanbridge's house for a 
barbecue.  Later that evening, Stanbridge, Eddy, J.R.E., and an adult friend of Stanbridge were sitting in 
Stanbridge's living room, watching a movie.  Eddy went to sleep in another room.  When J.R.E. began 
to fall asleep, Stanbridge dragged him into Stanbridge's bedroom, had him get undressed and get into 
bed.  J.R.E. claims that he awoke during the night "to the feeling of defendant rubbing his crotch." J.R.E. 
testified that he told Stanbridge to stop and "elbowed him in the head." Stanbridge desisted and J.R.E. 
drifted back to sleep, but he testified that he awake later with Stanbridge "performing oral sex on him." 
Stanbridge consistently denied that he had any sexual contact with J.R.E.

Prior to the trial before Adams County Circuit Judge Mark Schuering, Stanbridge moved to exclude 
any evidence of prior incidents, dating from 1981, 1987, and 1989, when he was alleged to have 
attempted to initiate oral sex with 14-year-old boys; one of those incidents had actually led to his 
conviction of criminal sexual abuse.   Schuering found that there was significant risk of prejudice and 
granted Stanbridge's motion.  When the trial began, the state filed its own motion seeking to bar 
Stanbridge from introducing any evidence "in support of his assertion that he is heterosexual"; the 
motion stemmed from Stanbridge's statement to a police investigator that he was not a homosexual and 
was not sexually interested in little boys.  The court denied the state's motion, but cautioned the defense 
attorney against "opening the door" to this topic.  When defense counsel stated during his opening 
statement that Stanbridge was a veteran and father of three children, and that during the time he had 
known the Eddy family (the late 1990s) there were "no similar allegations" against him, the state moved 
to reconsider the rulings on its motions, and the trial judge ruled that the "door had been opened."

During the trial, the state presented testimony from two young men, recounting the incidents from a 
decade earlier when they were each 14.  According to the opinion by Justice Cook, this was dramatic 
testimony, upon which the prosecutor built in the closing argument to characterize Stanbridge as a 
"predator of teenage boys to put it bluntly." The closing argument dwelt on similarities between the old 
incidents and the conduct charged in the case.  On appeal, Stanbridge, who maintained his innocence of 
J.R.E.'s charges, asserted that this testimony and argument should not have been allowed.

Reversing his conviction, the appellate panel voted 2-1 in favor of Stanbridge's argument.  The court 
found that this kind of testimony would be admissible in a case where the identity of the perpetrator was 
in question, or where the defendant admitted to particular conduct but tried to put an innocent "spin" on 
it, but that it was improper in this case to suggest to the jury that because Stanbridge had acted in a 
certain way in the late 1980s, he was likely to have acted the same way a decade later.  Such 
"propensity" testimony, and the closing argument built upon it, was held by the court to be improper in 
these circumstances.  

The court also rejected the idea that the defense counsel's opening statement had "opened the door" 
such that the state should be able to introduce this evidence as a corrective. "Contrary to the State's 
assertions," wrote Cook, "defense counsel did not 'cross the line' to create an impression of a blemish-
free life.  In addition, given that the State's own opening statement had already alluded several times to 
defendant's children, and fact that defense counsel described defendant as a father is unremarkable.  
Nor should counsel's comment that defendant was a veteran have been used to allow the State to 
introduce inadmissible evidence." The court refrained from passing on defendant's further argument that 
the issue of sexual orientation was irrelevant because studies show that "heterosexuals are just as likely 
as homosexuals to abuse children sexually." The court also found that defense counsel's opening 
statement about "no similar allegations" was merely a way of characterizing the nature of the relationship 
between Stanhope and the Eddy family, and "was not an attempt to portray defendant as having an 
unblemished past." Illinois courts have established that such an attempt would justify admitting 
prejudicial evidence of older crimes.

The court concluded that "the crux of this case is who should be believed about what happened in 
defendant's bedroom.  Where the determination of a defendant's guilt or innocence depends on the 
credibility of the defendant and the accuser, error is particularly likely to be prejudicial" and that it was 
likely so in this case, requiring a retrial.   The dissenting judge asserted that the Illinois precedents 
supported the trial court's ruling, and would have affirmed the jury's verdict.  A.S.L.  

Criminal Litigation Notes

_New York_ - Truth is stranger than fiction.  In an opinion reminiscent in some respects of _Silence of 
the Lambs_, a unanimous four-judge panel of the N.Y. Appellate Division, 3rd Department, upheld the 
continued confinement in a non-secure psychiatric facility of "Richard S.," who was convicted of 
manslaughter in the second degree upon pleading guilty in 1978 to killing a male sex partner, who had 
been charged with stabbing a 15-year-old boy during a sexual encounter in 1980 (to which he pled not 
guilty by reason of mental disease or defect), and who had been convicted in another murder of a male 
sex partner in 1979, the conviction having been reversed on appeal due to evidentiary problems. _In the 
Matter of Richard S._, 2004 WL 907961 (April 29, 2004).  According to the psychiatric testimony 
recounted by Justice Robert S. Rose, Richard is afflicted with sexual sadism, a condition which he does 
not acknowledge and for which he refuses treatment.  The state's experts testified that Richard was 
adept at presenting himself as charming and reasonable, thus explaining testimony in support of his 
release from some who have come in contact with him in the state institutions to which he has been 
confined, but at times he has lashed out in a violent manner.  In 1997, a licensed psychologist prepared 
a report relating that Richard was "having sadistic fantasies during masturbation six or seven times each 
day, reaching orgasm only when he visualized stabbing his bound male victim to death." One expert 
witness testified that, "if released, respondent would present a risk of harm to those in the homosexual 
sadomasochistic subculture," especially if he resumed past patterns of substance abuse which seemed to 
fuel the actualization of his fantasies.   The court found the cumulative expert testimony to strongly 
support the County Court's refusal to authorize release, contrary to Richard's argument that he no 
longer presented any risk to society.  Richard S. has been confined in state institutions for the past 
twenty-two years under a series of retention orders upon completion of his initial six-month period of 
confinement after the earliest guilty plea.

_Ohio_ - In an opinion issued on May 20, the Court of Appeals of Ohio, 8th Appellate District, 
affirmed a finding by the Common Pleas Court in Cuyahoga County that Francois Budreaux is a "sexual 
predator" who should remain confined under the sentence of ten to twenty-five years that was imposed 
on April 7, 1992. _State of Ohio v. Budreaux_, 2004 Ohio App. LEXIS 2263.  According to the 
summary of the record by Judge Anthony O. Calabrese, Jr., Budreaux pled guilty to one rape count of 
a multi-count indictment that included charges of rape, attempted rape, kidnapping, and furnishing drugs 
to a minor.  His alleged modus operandus, according to the state's argument at his sexual predator 
hearing, was that he "1) lured college-aged males to his apartment by disguising his voice as that of a 
woman, drugged and raped them; 2) was a fugitive from justice for a period of six years following his 
indictment; 3) pled guilty to the rape count and that a second ten-count indictment was nolled; and 3) 
used over 30 aliases." He was nearing the tenth anniversary of his imprisonment when the state's 
Department of Rehabilitation and Corrections recommended a sexual predator hearing, apparently 
preparatory to determining to keep him incarcerated past the point when somebody with his sentence 
might normally be released on parole.  At the hearing, Budreaux's attorney charged that "the only 
reason the State wants Mr. Budreaux declared as a sexual predator is because they know him and in his 
history to be a male prostitute and for him to be a homosexual," and the attorney also stated, "I would 
just ask the Court to please not rely on the fact that the State is insisting because of his homosexuality he 
should be a sexual predator." Judge Calabrese asserted that these allegations were "wholly 
unsubstantiated, counterproductive, and insulting," and noted that the hearing judge had specifically 
asserted that Budreaux's sexual orientation was irrelevant, the case turning on expert psychiatric 
testimony concerning the likelihood of Budreaux re-offending in the manner charged in the indictment.  
A.S.L.

Electoral Notes

_New Mexico_ - Anti-gay forces seeking to put an initiative on the ballot to repeal the state's law 
banning sexual orientation discrimination suffered a setback when Attorney General Patricia Madrid 
issued an opinion that this issue is not subject to referendum vote.  The state constitution specifically 
excepts from the referendum process "laws providing for the preservation of the public peace, health or 
safety." Madrid took the position that the state's civil rights law, which includes the sexual orientation 
provision, falls within those categories.  A spokesperson for the anti-gay group that was circulating 
petitions said they would continue to collect signatures, anticipating a lawsuit challenging the A.G.'s 
opinion. _Albuquerque Journal_, May 15. 

_Ohio - Cincinnati_ - The _Cincinnati Post_ reported on May 1 that Citizens to Restore Fairness has 
collected enough signatures to place on the November ballot a question to repeal Article XII of the City 
Charter, a measure passed by referendum a decade ago that bars city officials from enacting or 
enforcing any measure that gives "minority or protected status, quota preference or other preferential 
treatment" to homosexuals or bisexuals.  The measure had been held unconstitutional by a federal 
district judge, but was revived by the 6th Circuit Court of Appeals, even in the face of a remand from 
the Supreme Court for reconsideration in light of _Romer v. Evans_ (1996). A.S.L.  

Legislative Notes

_Federal_ - The Servicemembers Legal Defense Network reports that the FY2005 Defense 
Authorization Bill may include language intended to trump campus resistance to military recruiters by 
strengthening the requirements of the so-called Solomon Amendment, a provision in prior Defense 
spending bills that threatens loss of various kinds of federal funds for educational institutions that bar 
military recruiters.  According to an SLDN bulletin of May 13, the bill includes language requiring that 
colleges and universities grant military recruiters access 'in a manner that is at least equal in quality and 
scope to the degree of access to campuses and to students that is provided to any other employer.'  
SLDN has opposed the measure on the grounds that military access is being achieved under Solomon 
and these more demanding rules are not required.  Sen. Edward Kennedy (D-Mass) proposed an 
amendment that would exempt student aid money from the federal funds subject to these requirements, 
similar to a measure that was included in prior Defense spending bills through the efforts of Reps. 
Barney Frank and Tom Campbell. 

_California_ - The California state assembly voted 48-32, strictly along party lines, to approve AB 
2900 on May 17.  This bill would standardize over thirty labor and employment discrimination 
provisions in California law to create consistency with the procedures and remedies of the Fair 
Employment and Housing Act.  Among the statutes to be rationalized and integrated into California civil 
rights law is the ban on sexual orientation, which had been enacted separately and presented differences 
in enforcement from the more "traditional" civil rights laws.  The bill now goes to the State Senate. 
_Equality California_ press announcement, May 18. * * * On May 25, the California Senate voted 22-
10 in favor of S.B. 1234, only-lesbian legislator Sheila Kuehl's proposed Omnibus Hate Crimes Act of 
2004, which would consolidate state laws to create a unified definition of a hate crime. _Equality 
California_ press release, May 25.

_California - Los Altos_ - The Los Altos High School Gay Straight Alliance asked the local city council 
to issue a gay pride day proclamation to coincide with their planned gay pride picnic on June 7.  Mayor 
John Moss encouraged them to submit the proposal. But at the council meeting, a counter-proposal to 
declare a "tolerance day" was passed instead.  The Mayor said he changed his position on this issue 
when he saw religious conservatives in the audience at the council meeting and thought that they would 
be "upset" by the students' proposal.  The incoming president of the high school group said they would 
attempt to get a "gay pride" resolution again next year.  A member of the student group expressed 
disappointment at the council's action.  Said Alison Tarbell, 18, "Tolerance implies putting up with - not 
accepting.  It's just not what we wanted." The only councilman who stated a preference for the 
students' proposal, Curtis Cole, said that tolerance did not capture what the students wanted. "I think it 
lacked the same amount of courage high schoolers were expressing," he said. _San Jose Mercury 
News_, May 23, 2004.

_Hawaii_ - A bill to ban sexual orientation discrimination in housing died in the state Senate, even 
though each house of the legislature had separately approved such a measure, according to a May 5 
report in the _Honolulu Star-Bulletin_.  The Hawaii Christian Coalition lobbied hard to have a religious 
exemption included in the bill, which was strongly opposed by the Gay and Lesbian Education and 
Advocacy Foundation.  In the end, each house included a somewhat differently worded religious 
exemption, and compromise between them proved impossible to obtain.  

_Kansas_ - On May 4, the Kansas House of Representatives fell one vote short of the two-thirds 
majority necessary to approve a proposed state constitutional amendment that would define marriage in 
the state as only involving one man and one woman.  The measure had previously been approved by the 
Senate.  It is one of the broader proposals that would also ban any of the legal benefits associated with 
marriage from being conferred through domestic partnerships or civil unions.  The House vote was 79-
45, the Senate vote 88-36. _Associated Press_, May 4.

_Oklahoma_ - Reacting to an opinion by Attorney General Drew Edmondson that Oklahoma would be 
required by Full Faith and Credit obligations imposed by the federal constitution to recognize the validity 
of a court-approved adoption of an Oklahoma-born child by a same-sex couple in another state, for 
purposes of responding to a request for an amended birth certificate showing the names of the adoptive 
parents, the legislature passed and Governor Brad Henry signed into law on May 3 an amendment to 
the state adoption law overruling Edmondson's opinion.  The measure amends Ok. Stat. Title 10, sec. 
7502-1.4, a provision that otherwise requires Oklahoma courts to recognize adoption decrees of 
foreign courts, to provide: "Except that, this state, any of its agencies, or any court of this state shall not 
recognize an adoption by more than one individual of the same sex from any other state or foreign 
jurisdiction." Thus, if an Oklahoma-born child is adopted by a same-sex couple out-of-state, Oklahoma 
will only issue a revised birth certificate listing one of the adoptive parents. _Associated Press_, May 4.  
The state Senate's Republican leader, James Williamson of Tulsa, explained, "I believe it is important to 
affirm the voice of the majority of Oklahomans who don't feel like homosexual couples should be 
recognized as adoptive parents of children." Williamson is also chief sponsor of the proposal that will be 
on the ballot in November to amend the state constitution to ban marriages of same-sex partners. 
A.S.L.

Law & Society Notes

_North Carolina_ - The state Republican Party rejected a request by Log Cabin Republicans to have a 
booth at the party's state convention on the weekend of May 22-23.  According to state GOP 
Chairman Ferrell Blount, upon receiving the application for the booth, he visited Log Cabin's website, 
noted that they were critical of President Bush and took positions on gay issues opposed to those 
favored by the state GOP leadership, and concluded that letting the group have such a presence at the 
state convention would be inappropriate. "It is diametrically opposed to the values of the North 
Carolina Republican Party," said Blount.  _Charlotte Observer_, May 20.

_Texas - Lago Vista_ - After People for the American Way sent a letter on behalf of Sherrell Ingram, a 
Lago Vista high school junior whose attempt to buy tickets to the prom for herself and a girlfriend were 
turned down, the school district decided to suspend its prom attendance guidelines for the remainder of 
the year "until the district has an opportunity to further evaluate its role in the sponsorship of school 
social activities," according to a letter by the district's lawyer that appeared in the _Austin American-
Statesman_ on May 8.  In its letter to the district, PFAW maintained that a policy of refusing to sell 
prom tickets to same-sex couples violated the school's obligations under federal funding laws to avoid 
sex discrimination, and also raised constitutional equal protection issues. __Fort Worth Star-Telegram_, 
May 9. 

_Presbyterian Church (USA)_ - The permanent judicial commission of the Presbyterian Church (USA) 
with jurisdiction over congregations in Ohio and Michigan ruled 6-4 that the denomination's constitution 
does not forbid ministers from performing marriage ceremonies for same-sex couples.  The ruling 
released on May 3 reverses Rev. Stephen Van Kuiken's conviction by a lower church court, who 
performed such a ceremony as pastor of the Mt. Auburn Presbyterian Church in Cincinnati.  He was 
removed as pastor when charges were filed against him.  He was the first Presbyterian pastor to be tried 
on charges of performing weddings for same-sex couples.  Van Kuiken was described in news reports 
as a married heterosexual.  He has decided to resign from the church despite this ruling, in order to 
become pastor of a non-denominational, gay affirming church called The Gathering, made up largely of 
former Mt. Auburn congregants who decided to leave the church over his dismissal. _Associated 
Press_, May 3.

_United Methodist Church_ - The Judicial Council of the United Methodist Church, meeting in 
Pittsburgh during the church's general convention, ruled by a 6-3 vote that homosexuality is 
incompatible with Christian teaching, and that a violation of church law could be cause for removal from 
church office.   The General Convention voted 551-345 to direct the Judicial Council to review the case 
of Rev. Karen Dammann, a lesbian, who was acquitted in March by a jury of 13 pastors in Bothell, 
Washington, on charges of violation of church law.  Pending the vote in her case, Rev. Dammann had 
been suspended from active ministry in the church. _Associated Press_, May 2.

_South Dakota_ - Tom Murphy, 48, a retired military veteran presently serving as a member of the 
Rapid City City Council, has informed his constituents through the local press that he is beginning the 
process of transitioning to the female gender, and will be known as Marla.  Murphy says that he knew 
from the age of 18 that he wanted to change his sex, but kept it secret through a 22 year Air Force 
career, much of it served at Ellsworth Air Force Base near Rapid City.  He was appointed to a vacancy 
on the Council in 2000, and won election in 2001 and 2003.  Murphy decided to "come out" about his 
sexuality after becoming embroiled in the effort to stave off an anti-gay marriage amendment in the 
current session of the state legislature.  He testified at a hearing on the bill and wrote letters to the editor.  
When another letter published in the local paper expressed hatred of gay people, Murphy decided to go 
public.  Murphy is just starting the process of gender reassignment, which will involve hormone therapy 
and a period of at least a year of living as a woman before surgery can be performed.  He said that for 
now he will continue to dress in shirt and pants for City Council meetings, but will start dressing 
increasingly as a woman in his private life.  Since coming out in print, Murphy indicated that he has 
heard mainly supportive comments from friends and neighbors in Rapid City. _Associated Press_, May 
4. A.S.L.

U.K.'s Highest Court Rules Police Refusal to Hire Transsexual Was Sex Discrimination

On May 6, in _A. v. Chief Constable of West Yorkshire Police_, a 5-judge panel of  the United 
Kingdom's highest court (the judicial committee of the House of Lords) held unanimously that the 
refusal of a police force to hire a transsexual woman was contrary to the Sex Discrimination Act 1975.  

The police force refused to hire A. in March 1998 because she could not perform the full searching 
duties of a police constable.  Under the Police and Criminal Evidence Act 1984, certain searches could 
only be performed by a police constable of the same sex as that of the person being searched.  Under 
U.K. law, A. was then, and still is (until the pending Gender Recognition Bill is passed and she takes the 
appropriate steps to have her acquired gender recognized), legally male.  Legally, she could not search 
a non-transsexual woman.  Practically, she could not search a non-transsexual man, who could 
reasonably object to the search, in the opinion of the chief constable.  Although the police force could 
have exempted her from searches governed by the 1984 Act, this would eventually have required 
disclosing her transsexual history to her co-workers, which she appeared not to want.  The police force 
therefore concluded that it was a genuine occupational qualification that she be able to search either men 
or women, and that they could refuse to employ her without violating the 1975 Act.  (Lord Bingham 
suggested that, but for European Community law, this defense would have succeeded.)

The reasoning of Baroness Hale of Richmond (who was appointed the first Law Lady in 2003, joining 
11 male Law Lords) was supported by three other judges.  She held that both the Sex Discrimination 
Act 1975 and the Police and Criminal Evidence Act 1984 must be interpreted in light of the European 
Community's Council Directive 76/207/EEC, adopted in 1976.  The Directive prohibits sex 
discrimination in all aspects of employment other than pay, and was interpreted by the Luxembourg-
based European Court of Justice in _P. v. S. & Cornwall County Council_ in 1996 as prohibiting a 
dismissal for a reason related to a gender reassignment.  Baroness Hale concluded that the Police and 
Criminal Evidence Act 1984 "must be interpreted as applying to [A.] in her reassigned gender," 
because there existed no "strong public policy reasons to the contrary."  This meant that, being legally 
female in relation to employment (but not marriage), A. could legally search non-transsexual women, 
and therefore the genuine occupational qualification exception could not be used to exclude her.  
Baroness Hale's reasoning included one troubling piece of obiter dicta that could be cited in cases 
involving lesbian and gay employees or job applicants.  She observed that "it may well be rational to 
object to being nursed by a heterosexual person of the opposite sex. It may also be rational to object to 
being nursed by a homosexual person of the same sex. But it would not be rational to object on similar 
grounds to being nursed by a trans person of the same sex."

The fifth judge, Lord Rodgers of Earlsferry, agreed that there had been sex discrimination, but on the 
basis that, although A. could not legally or practically perform searches, she could have been exempted 
from searches and could not have objected to her transsexual history being disclosed to co-workers.  
He said that: "[S]he cannot insist that she be employed in such a way that her transsexuality will be kept 
confidential in all circumstances, any more than a homosexual or dyslexic officer is entitled to insist that 
he be employed in such a way that his homosexuality or dyslexia is kept confidential in all 
circumstances."  If A. had insisted on non-disclosure after being offered the possibility of exemption 
from performing searches, the police force would have been justified in refusing to employ her.   But 
during these proceedings A. indicated that disclosure of her identity to colleagues on the force as 
needed would not be offensive to her. _Robert Wintemute_

Other International Notes

_International Olympic Committee_ - The International Olympic Committee (IOP) has announced that 
beginning with the upcoming summer games in Athens, transsexual athletes who have completed two 
years of post-operate hormone therapy will be treated by the IOC as members of their acquired 
gender, and will be allowed to compete in that gender.  Thus, athletes born male who have transitioned 
to female through surgery and hormone treatment will be allowed to compete as women in the women's 
events. _Associated Press_, May 17.

_Australia_ - The national parliament is faced with contradictory proposals on same-sex marriage.  MP 
Michael Organ, a member of the Green Party, introduced a private member's Bill on May 24 that 
would remove barriers to marriage between same-sex partners, allow such couples to adopt children 
and afford access to IVF treatment, employment and health benefits.  By contrast, the government of 
Prime Minister John Howard, a conservative opponent of marriage for same-sex partners, announced 
on May 25 that it would propose amendments to the Marriage Law to specify that a lawful marriage in 
Australia could only be performed between a man and a woman.  Howard asserted the necessity of 
doing this because three cases are now pending of same-sex couples seeking recognition in the Family 
Court for marriages they contracted in Canada.  Up to now, the Marriage Law did not address the 
question, under the assumption that the common law understanding of marriage as a strictly heterosexual 
institution would govern its interpretation.  Tasmanian Liberal Senator Guy Barnett, leader of a group of 
30 MP's in the governing coalition who had been agitating for the amendment, argued that it was 
essential to reserve to Australia's own political process the determination of who should marry, and not 
cede it to Canada or other places that might authorize such marriages.  Gay rights groups criticized the 
move as electioneering, with Democrat Senator Brian Greig, who is openly gay, accusing Howard of 
"aping the reactionary politics of President Bush." _Brisbane Courier Mail_, May 26.

_Australia_ - A former Australian diplomatic employee, William Stuart Brown, committed suicide in a 
jail in Bali after being sentenced to 13 years in prison on charges of active pedophilia.  Australia's 
Foreign Minister, Alexander Downer, told the press that Brown had been dismissed from the diplomatic 
service because of his "'in-your-face' homosexuality", and that he had been suspected of being a "child 
molester." Brown had worked at the Australian embasssy in Jakarta from 1982 to 1984, and had 
moved to Indonesia from Canberra eight years ago.  The sentence imposed by the court was far longer 
than that recommended by the prosecution.  Downer stated in a radio interview that while employed in 
the diplomatic service, Brown's behavior was "a matter of some substantial embarrassment to the 
Australian embassy," and expressed approval of Brown's conviction.  While characterizing the long 
sentence as "savage," Downer said that it was "not an unreasonable penalty." _Australian Associated 
Press General News_, May 12.

_Australia_ - In an interesting contrast with recent UK litigation reported above, the Police Academy in 
Victoria has boasted to the media about being the first in Australia, and probably the world, to recruit 
successfully a transsexual to become a police officer.  The recruit, a male to female individual who is still 
in the transition process, prefers not to be identified publicly.  Administrative arrangements about use of 
shower and toilet facilities are still to be worked out.  Paul Evans, Assistant Commissioner of the 
Victoria Police Education Department, told ANSA English News Service (May 9) that the force does 
not discriminate on the basis of gender or sexuality, and that "A person's gender or sexuality is a 
personal matter."
_Canada_ - The fate of a proposed national law opening up marriage to same-sex couples may hang in 
the balance on June 28, the date that has been set for national parliamentary elections.  Prime Minister 
Paul Martin called the general election, even though one was theoretically not necessary for another 
year, in order to get his own electoral mandate, having been elevated to the office by vote of his party 
when the previous prime minister stepped down early.  The Liberal Party has controlled the parliament 
for many years, but now faces a coalition of conservative groups in a newly-invigorated Conservative 
Party.  The Liberals are officially committed to legislating for opening up marriage to same-sex partners 
on a national basis, although Martin is not so committed to this as was his predecessor, Jean Chretien.  
At present, marriages are available in three provinces due to rulings by the highest provincial appeals 
courts.  The Chretien government had decided not to appeal any of these rulings to the national 
Supreme Court, instead certifying to that court some questions concerning a proposed federal marriage 
bill.  After assuming office, Martin amended the questions to add one inquiring about whether civil 
unions in place of marriage would accord with the equality requirements of Canadian constitutional law, 
signaling the possibility that the Liberals will draw back from legislating for marriage on a national basis.  
Predictions for the election are that the Liberals, in coalition with the New Democrats, a leftist party, 
may be able to exercise control, but that the Conservatives are expected to make some gains, and to 
make the marriage issue an important part of their campaign.  About seventy percent of the population 
lives in the three provinces where marriages are now available.  The most recent polling shows that 
about 43 percent of Canadians support marriage for same-sex partners, with 47 percent opposed, but 
that almost 60 percent equate homophobia with racism and anti-Semitism as undesirable traits, 
according to the respected Leger Marketing poll, so the Conservatives will need to figure out a way to 
temper their anti-marriage campaigning to avoid the appearance of gay-bashing. _365Gay.com_, May 
24.  

_Canada_ - Canada's Immigration and Refugee Board, struggling with a large caseload of petitions for 
asylum from gay people from 75 different countries, seems to be falling back on stereotypes in order to 
simplify decision-making, according to a May 4 news report about the denial of asylum to Fernando 
Enrique Rivera, a gay Mexican man.  Rivera, who from the newspaper account appears to fit the 
description "straight-appearing," whatever that means, was turned down, according to the board 
member who wrote the opinion, because he was not effeminate.  Evidently, the Board concluded that a 
non-effeminate gay man who is discrete about his sexuality can survive without oppression in Mexico.  
Rivera, who had lived in Puerto Vallarta where he worked as a statistician for the police department, 
fled as a result of repeated extortionate threats from police officers directed at him because he was gay.  
According to a detailed article about the case published in the _Globe and Mail_, it seems that making 
asylum decisions for gay Mexicans is no easy task.  The Mexican government has taken a more gay-
friendly line in recent years, there is evidence that anti-gay bias is more severe in some parts of the 
country than others, and non-effeminate gay men can presumably get along just fine if they stick to some 
major cities.  The Board expressed the view that Mr. Rivera could live in Mexico City and not be 
subjected to the kind of oppression he claims to have experienced in his home town.  His appeal of the 
Board's ruling was rejected by the federal courts, and he faces deportation back to Mexico, having 
lived in Canada for four years and finding the place much to his liking.  In an interview, Rivera pointed 
out that some gay Mexican men assume an effeminate pose when they go for their asylum interviews in 
Canada, but that he did not think it was appropriate to misrepresent himself.  (In the U.S., asylum case 
law recognizes the claims of effeminate gay men from Mexico. See _Hernandez-Montiel v. Immigration 
and Naturalization Service_, 225 F. 3d 1084 (9th Cir. 2000).)  

_Ireland_ - The Equity Tribunal ruled in a decision published on May 19 that the Bridge Hotel, 
Waterford, had engaged in unlawful sexual orientation discrimination when Martin O'Regan, a former 
employee of the hotel, was asked to leave the hotel restaurant prior to closing time because he is gay.  
The hotel had contested the charges, claiming that Mr. O'Regan's sexual orientation had nothing to do 
with him being asked to leave, but the Tribunal was convinced otherwise.  Reported the _Irish Times_ 
on May 20: "The Equality Officer concluded, on the balance of the probabilities, that a member of staff 
had singled out Mr. O'Regan and had asked him to leave and this request was because he knew the 
complainant was gay." This conduct was found to violate the Equal Status Act 2000, and drew a 
remedy of 1,000 euros in damages for the humiliation and suffering Mr. O'Regan experienced.

_Scotland_ - On May 1, a lesbian couple appeared at the town hall in Alloa to take up the 
municipality's offer to perform non-binding marriage ceremonies for same-sex partners.  Although the 
partners could not sign the marriage register, they were presented with a certificate and advised to 
inform the registrar if they ended their relationship.  The women did not want their names publicized, 
according to Rod Richardson, Clackmannanshire Council's principal administrative officer. _The 
Herald_, May 6.

_Slovakia_ - The BBC, monitoring European television reports, has reported that the Slovak Parliament 
has approved a law against discrimination that was submitted on behalf of the government by Deputy 
Prime Minister Pal Csaky.  According to the TV report, the law bans discrimination on the basis of 
race, gender, sexual orientation, religion, or ethnic origin.  However, the law was approved with the 
addition of an amendment proposed by MP Muskova, which "also bans influencing of sexual orientation 
that contradicts human dignity," according to the BBC's somewhat ambiguous translation of the Slovak 
broadcast.  

_United Kingdom_ - The Oxford Union's members have voted that after the Civil Partnership Bill is 
enacted, civil partners of members should be entitled to the same life membership privileges now 
accorded to legal spouses.  The changed was passed unanimously by the Union's standing committee.  
The bill, endorsed by the government and expected to be approved by both houses of the Parliament 
and receive royal assent, will probably go into effect later in 2004. _GMAX_, May 19.

_Yemen_ - Reuters reported on May 20 that a Yemeni court had convicted three journalists on May 
18 for publishing a report in an Arabic-language newspaper last year that included interviews with men 
who had been jailed for homosexual conduct.  The journalists were found to have violated Yemeni 
morals and customs by publishing such a report. A.S.L.

Professional Notes

On May 9, the _New York Times_ Sunday Magazine supplement included an article by David Garrow 
hailing Mary Bonauto, a staff attorney at Gay & Lesbian Advocates & Defenders in Boston, as the 
Thurgood Marshall of the same-sex marriage movement.  Bonauto was a key participant in the legal 
team in _Baker v. State_, the 1999 Vermont Supreme Court ruling holding that same-sex partners in 
that state were entitled under the state constitution to all the rights and benefits of marriage, and she was 
the lead counsel who argued before the Massachusetts Supreme Judicial Court in the landmark 2003 
ruling in _Goodridge v. State_, the first ruling on the merits by the highest court of a state to hold that 
same-sex partners are entitled to get married.  The article recounted the history of the movement for 
same-sex marriage and the central role that Bonauto and GLAD have played in the recent affirmative 
successes, while noting that pending cases brought by Lambda Legal, the ACLU Lesbian and Gay 
Rights Project, and the National Center for Lesbian Rights seek to spread these positive legal 
developments to many other jurisdictions.

The National Lesbian and Gay Law Association has announced that D'Arcy Kemnitz, of Washington, 
D.C., will be the organization's first Executive Director.  Ms. Kemnitz has been active as a volunteer 
with NLGLA and with GAYLAW, the Washington, D.C., lawyers association.  For more information 
about NLGLA activities and the upcoming Lavender Law Conference, in Minneapolis on Sept. 30 
through Oct. 2, 2004, please visit the Association's website at www.nlgla.org.

The City University of New York School of Law awarded an honorary degree to Shannon Minter, the 
legal director at the National Center for Lesbian Rights (San Francisco), in recognition of his leadership 
in litigating and educating on issues of sexual minority rights.  In addition to directing the legal staff at 
NCLR, he serves on the board of the Transgender Law and Policy Institute, was a founding board 
member of the Transgender Law Center and was a founding board member of the San Francisco-area 
Lesbian & Gay Immigration Rights Task Force.  He is also an advisory board member for the 
International Gay & Lesbian Human Rights Commission and serves on the Legal Committee for the 
Harry Benjamin International Gender Dysphoria Association, which is recognized as the professional 
formulator of standards for dealing with transgender issues.  Shannon Minter is the author or co-author 
of numerous law journal articles on sexual minority issues.  The ceremony took place on May 21.

The New York County Lawyers Association presented a public service award on May 27 to attorney 
Matt Foreman, the executive director of the National Gay and Lesbian Task Force.  Foreman had 
previously been associated with Empire State Pride Agenda and the New York City Gay and Lesbian 
Anti-Violence Project.

Lambda Legal has announced that Alphonso David has joined its legal staff in the New York office.  
David is a 2000 graduate of Temple University Law School in Philadelphia, where he was on the 
school's National Trial Team that won the 1998 NITA Tournament of Champions.  He published a law 
journal note on the _Bragdon v. Abbott_ case, and went on to clerk for U.S. District Judge Clifford 
Scott Green of the Eastern District of Pennsylvania and to work as corporate counsel for Canyon at 
Peace Park in Malibu, California.    

On May 18, Oregonians voted to retain Rives Kistler as a Justice of their Supreme Court by a margin 
approaching 3-2.  Kistler is the only openly-gay state Supreme Court Justice in the U.S. _Oregonian_, 
May 19. 

Know thine enemy.  When Boalt Hall Law School's career services office surveyed firms that interview 
at the school about their employment policies regarding sexual orientation, two firms provided responses 
that will put them on the banned list.  According to the May 2004 issue of _The American Lawyer_, 
Pasadena's Hahn & Hahn responded that it attaches "significant weight" to an applicant's sexual 
orientation, and Tooze Kerr Marshall & Shenker, a Portland, Oregon, firm, responded, "We will not 
employ perverts or deviants." One suspects that the firm's managing partner probably graduated from 
law school during the McCarthy Era, and we don't mean Clean Gene.

On the importance of being "out" at work: On May 19, _The Recorder_ published an article by Mike 
McKee titled "Cultural Revolution: With Many Gay Lawyers on High Court's Staff, Same-Sex 
Marriage Hits Close to Home." McKee speculated that with so many openly-gay lawyers serving on 
the legal staff of the California Supreme Court, the members of the court were likely to see the issue of 
same-sex marriage in very personal terms.  McKee stated that it is "common knowledge that the 
Supreme Court, the First District Court of Appeal and the Administrative Office of the Courts - all 
located within the same complex - employ a large number of gays and lesbians.  The chief justice even 
regularly shows up to shake hands at the yearly dinner of the gay legal group Bay Area Lawyers for 
Individual Freedom." Although McKee reported comments by many, including a former member of the 
Supreme Court, that the justices would try to put aside personal relationships in rendering their 
decisions, it would be impossible for any member of the court today to say what U.S. Supreme Court 
Justice Lewis Powell, who cast the deciding vote in _Bowers v. Hardwick_, said in 1986: that he did 
not know any gay people (at a time when there were gay employees, including a closeted clerk, 
working in his chambers at the Supreme Court).  McKee also noted that the long lines of applicants for 
marriage licenses when they were being issued in San Francisco earlier this year were clearly visible 
from the court building, and that an employee of the court of appeal was honored with a reception after 
her marriage to her partner.  It will be interesting to see whether this court, six of whose seven members 
are Republicans, will buck the official position of their party when the same-sex marriage case finally 
comes before them. A.S.L.

AIDS & RELATED LEGAL NOTES

7th Circuit Finds Suspicious Timing of Suspension Not Enough to Ground ADA Discrimination Claim

The coincidence of a suspension imposed immediately after an employee revealed he had AIDS was 
not in itself enough to sustain a prima facie case of discrimination under the ADA, ruled a 7th Circuit 
panel in _Buie v. Quad/Graphics, Inc._, 2004 WL 885726 (April 27, 2004), upholding a summary 
judgment for the employer granted by Chief Judge Rudolph T. Randa of the U.S. District Court for the 
Eastern District of Wisconsin.  Circuit Judge Daniel Manion wrote for the appellate panel.

Struggling with ill-health due to complications of his HIV infection, Anthony Buie compiled a poor 
attendance record at Quad/Gaphics, Inc.  For whatever reason, Buie had not chosen to reveal his HIV-
status or AIDS condition to his employer.  After having been warned that further absences could cause 
his termination, he managed to go several weeks without missing work, but then was absent against on 
September 24 and October 10, 1999.  On October 15, Buie called in to his supervisor to say that he 
was ill and could not come to work.  When the supervisor told him that his job was in jeopardy, Buie 
revealed for the first time that he had AIDS and that his absences were due to that.  The supervisor then 
told him not to return to work.  A few days later, Buie met with the company's employee services 
manager, who was able to arrange for him to get FMLA leave time for some of the absences, but 
ultimately a corporate vice president determined that his leave would be considered a disciplinary 
suspension for excessive absenteeism, and when Buie resumed regular work, he was warned and 
agreed that any disciplinary infraction could cause his discharge.  Subsequently, Buie got into a 
confrontational situation with a supervisor, and subsequently was found to have threatened a co-worker 
who had corroborated the supervisor's account of the confrontation.  He was then discharged.

The court of appeals found that as a person with AIDS, Buie was clearly covered by the ADA as a 
person with a disability, who appeared to be qualified for his job.  However, the court found that the 
employer had credibly alleged that the suspension imposed on Buie was consistent with the poor 
attendance record he had compiled before the employer was informed that he had AIDS, and the mere 
coincidence that the suspension was imposed after the employer learned about his illness was not 
sufficient to support a claim of discriminatory motive in this case.  

"Here, temporal proximity is all that Buie relies on under the direct method [of proving discriminatory 
motive], and it does not create an issue of fact," wrote Manion. "Even when the record is viewed in 
Buie's favor, the undisputed evidence shows that he was on the brink of discharge before anybody at 
Quad/Graphics knew that he had AIDS.  Connell [his supervisor] warned Buie on September 9, 1999, 
that, if he continued 'to have attendance problems' he could be fired.  On September 24, October 10, 
and October 15, Buie nonetheless chose to miss work without excuse and without warning.  It was only 
then, when Buie had every reason to believe that he was on the edge of termination, that he told Connell 
that he had AIDS. . .  An eleventh hour declaration of disability does not insulate an unruly employee 
from the consequences of his misdeeds.  We conclude that, under the direct method, Buie has not 
created an issue of material fact as to his ADA claim." The court similarly concluded that indirect 
methods of proof did not avail Buie, and that his claim of retaliation for seeking FMA leave was also not 
credible.  Ultimately, it appeared that Buie's conduct after returning to work from his suspension seems 
to have weighed heavily in the court's conclusion that Buie's discrimination claims did not deserve a 
trial.  A.S.L.

Connecticut Supreme Court Rules HIV Infection Is an Occupational Disease for Corrections Officers 
Assigned to Emergency Response Unit

The Connecticut Supreme Court ruled on May 11 that exposure to possible HIV infection is a particular 
hazard of being assigned to the emergency response unit in a state prison, and thus HIV infection should 
be considered an occupational diseases under the state's Worker's Compensation Law. _Estate of 
John Doe v. Department of Correction_, 2004 WL     .  The opinion, which drew a concurrence and 
two dissents to the majority opinion by Justice Flemming L. Norcott, Jr.  The chief justice's concurrence 
argued that HIV should be considered an occupational disease for all correctional officers, not just 
those assigned to the emergency response unit, while the dissenters argued that the actual data on HIV 
transmission in prisons did not support a finding of enhanced risk necessary to consider this an 
occupational disease.

The decedent was employed as a state corrections officer at the Bridgeport prison from 1986 until 
1991.  In 1992, he was diagnosed HIV+, and he died as a result of AIDS in 1993.  At the time of his 
death, his estate filed a claim under the Workers Compensation Law, claiming he had contracted HIV in 
the course of his duties as a prison guard.  Normally, a compensation claim must be filed within one year 
of the last date of employment, which would make this one way untimely, but the time for filing is 
extended to three years in the case of occupational diseases.  The Worker's Compensation 
Commission decided to bifurcate this case and focus first only on whether the claim was timely, before 
looking into the issue of causation.  Based on the statistics showing that exposure to blood splashes had 
never been documented as the cause of a corrections officer contracting HIV, and that almost all the 
documented cases of occupationally-related HIV transmission had arisen in health care settings, the 
Commission concluded that HIV was not an occupational illness.

Disagreeing with this conclusion, Justice Norcott emphasizes statistics showing that about 20% of 
Connecticut prisoners were estimated to be HIV+, as compared to a fraction of a percent of the non-
prison population, as well as data showing that there is more than a de minimus risk that HIV will be 
transmitted through external exposure, and of course testimony about the duties of the emergency 
response unit, whose main function is to break up fight and riot situations during which there is a 
significant possibility that the correctional officers will be exposed to inmates' blood.  Taking these data 
together, Norcott argued, "the decedent's HIV infection constitutes an occupational disease because his 
employment as a correction officer in the emergency response unit was more likely to cause this disease 
than would other kinds of employment carried on under the same conditions." To illustrate the point, 
Norcott observed that a janitor with minimal prisoner contact would be working in the same physical 
prison environment as the corrections officer, but would have a much lower risk of HIV exposure due 
to the particular requirements and hazards of the job.  

As further evidence of this point, Norcott pointed to the special efforts the state has made to provide 
training for corrections officers on dealing with HIV, issuing protective gear, and adopting cautionary 
warnings, such as informing the officers that they should assume that all inmates are infected and take 
precautions to protect themselves accordingly.  Norcott also noted testimony that any time a corrections 
officer suffers direct exposure to inmate blood, the officer is offered anti-retroviral therapy to attempt to 
prevent HIV infection from getting established in his or her body.

Norcott also noted that the court was not ruling on the merits of the claim in this case, just on the 
appropriate statute of limitations in light of the nature of the claim.  Finding that HIV infection is an 
occupational disease for corrections officers does not mean automatic awarding of compensation 
benefits; actual exposure and causation must still be shown.

In a concurring opinion, Chief Justice William J. Sullivan argued that all corrections officers, not just 
those assigned to the emergency unit, face the hazard of unpredictable exposure to inmate blood.  He 
noted that evidence offered in this case (but not yet subject to trial evaluation due to the bifurcation of 
the case) showed that the decedent had experienced substantial blood exposure while he was assigned 
as an ordinary corrections officer, not in the emergency response unit, including an incident where he 
incurred a razor cut while conducting a sweep for contraband in an inmate cell.  

Dissenting, Justice Christine Vertefeuille argued that the majority had failed to evaluate the scientific 
evidence properly.  In her view, the issue was not whether inmates are HIV+ in greater proportion than 
those outside the institution, or even whether corrections officers have a heightened risk of exposure to 
inmate blood.  The issue, as it had been seen by the Commission, was whether being a corrections 
officer exposes the individual to risk of HIV exposure out of the ordinary, and based on the record she 
found this had not been shown.  No corrections officer in the nation up to the date when the expert 
testimony was presented before the Commission had ever been found to have contracted HIV due to 
blood splash exposure from an inmate. The only documented cases involved needle-stick injuries 
suffered by health care personnel in a penal institution.   Based on the data, Justice Vertefeuille was not 
convinced that HIV infection was a particular hazard of correction officer work, either normally or in the 
emergency unit.  A.S.L.

AIDS Litigation Notes   

_Federal - Louisiana_ - _Duncan v. Secretary of Defense_, 2004 WL 11183000 (E.D. La., May 18, 
2004), illustrates the futility of HIV+ service members attempting to vindicate their rights in litigation 
against the military establishment.  According to the allegations in his complaint, Johnny L. Duncan, an 
African-American Army member, submitted to HIV testing in December1999 and January 2000 upon 
activation of his reserve unit but was not informed that he had tested positive, a fact he learned only a 
few years later when he was diagnosed in April 2002 with "pneumocystis pneumonia," which District 
Judge Vance characterized in the opinion as "allegedly an opportunistic infection associated with the 
final stages of an HIV infection." (Allegedly?  Did this judge sleep through the 1980s?) Of course, had 
Duncan been properly informed at the time of testing positive, he could have sought treatment and, given 
the current state of medication in the U.S., most likely staved off progressing to pneumocystis, which is 
a sign of the immune system collapse that most HIV+ folks with access to medication have been able to 
avoid since the mid-1990s.  In other words, whether the failure to inform him and provide appropriate 
treatment was negligent or intentional (and he alleged both), it has had serious consequences of a 
potentially calamitous nature. After his discharge in 2003, Duncan filed this lawsuit, alleging a wide array 
of claims sounding in tort, invoking constitutional rights, and claiming the military did not even follow its 
own regulations in his case (in part, he alleged, because of his race).  Judge Vance determined, 
probably correctly in light of the extraordinary barriers that Congress and the Supreme Court have 
erected in such cases, that all defendants enjoyed immunity from suit and dismissed the case. 

_Federal - New York_ - U.S. District Judge Michael Mukasey (S.D.N.Y.) granted summary judgment 
to the defendants, New York State prison health officials, on constitutional claims by an inmate who 
was falsely labeled HIV+ through a clerical error. _Miner v. New York State Dept. Of Health_, 2004 
WL 1152491 (May 24, 2004).  Jeffrey Miner, a state prisoner representing himself pro se, alleged that 
his relationship with his wife and child were severely damages when his wife was given a letter stating 
that Miner was HIV+, which he is not.  It turned out that a clerical error resulted in the "wrong letter" 
being given to Miner's wife when she arrived for a visit with him under the Family Reunion Program.  
She was supposed to received a letter recounting Miner's positive status for hepatitis C, something she 
already knew about.   Miner claimed that his wife decided to divorce him after being told he was HIV+.  
When the error was discovered, the doctor in charge signed a letter of apology that was sent to Miner 
and his wife.  Judge Mukasey concluded that Miner failed to state constitutional claims; his suit against 
the state was barred by immunity, and government officials are not held to individual liability for 
constitutional torts based on negligent conduct.  Since nobody intended to cause harm to Miner, his 
claims were rejected.   

_Georgia_ - Incredibly, in light of legal developments over the past two decades, some employers 
continue to discriminate openly against HIV+ workers.  Lambda Legal has filed an ADA suit in Atlanta 
on behalf of Joey Saavedra, an HIV+ skilled auto glass installer who was dismissed from a new job 
with Nodak Enterprises, solely based on the company's articulated fear that his HIV status would be a 
"direct threat to the safety of others." _Lambea Legal Press Release_, May 20.  Given the rather odd 
views about HIV transmission exhibited by judges in the 11th Circuit in prior litigation arising under the 
ADA, it is possible that the employer's attorneys have given them an accurate reading of how the ADA 
would be interpreted by that court in this case, involving an employee who handles glass and may suffer 
nicks and cuts causing bleeding, so depending whether the company is willing to litigate rather than 
settle, this case might provide a vehicle for Supreme Court consideration of the circumstances under 
which HIV+ people are protected from employment discrimination under the ADA.  The only prior 
Supreme Court ruling on HIV-related discrimination was concerned with whether a person with HIV-
infection would be considered disabled under the law and would present an undue risk to a health care 
provider in a dental office setting.

_Massachusetts_ - Responding to questions posed by the Essex County District Court, the 
Massachusetts Supreme Judicial Court ruled in _Commonwealth v. Maxwell_, 2004 WL 1146643 
(May 25, 2004), that a criminal defendant would be entitled to discovery of the medical records of his 
victim, despite an apparently absolute confidentiality right for all HIV-related medical records, where 
those records are necessary to the defense case.  The Court also ruled that a buccal swab could be 
performed over the protest of the defendant, in order to be able to compare DNA with the type found 
at the crime scene.   Jason Maxwell, a hospital lab technician, was indicted for sexual assault based on 
allegations of improper sexual touching of a male patient, who was suffering from a brain infection.  The 
patient was the only witness; Maxwell sought medical records in support of his likely defense argument 
that the victim's powers to observe were so compromised by his illness that his identification of Maxwell 
as the perpetrator should not be believed. A.S.L.

AIDS Legislative & Policy Notes

_White House Office of National AIDS Policy_ - Confounding the predictions of some political pundits, 
who had opined that the President would not appoint a new director of his Office of National AIDS 
Policy before the November election, the White House announced on May 12 that Bush has designated 
Carol J. Thompson, who has been serving as acting director since August 2003, when Bush named Dr. 
Joseph O'Neill, an openly-gay man who had been director of the office, to be the new deputy 
coordinator of the Global AIDS Office in the State Department.  The speculation was that Bush would 
not want to appoint an openly-gay person to a visible post during the presidential election campaign.  
Thompson is not gay, but has been described favorably by AIDS activists.  There was also speculation 
that Christopher Bates, an openly gay official at the Department of Health & Human Services, would be 
designated as Thompson's deputy, but an earlier move to that effect did not take place. _Washington 
Blade_, May 21.

_CDC Deliberate Undercount of HIV Cases_ - Fifteen Democratic members of Congress have written 
to the CDC to protest its practice of not recording the number of new HIV infections reported from 
states that use identification numbers rather than names to identify the data.  According to the members 
of Congress, the result is to undercount HIV cases from fourteen states and the District of Columbia, a 
serious issue because federal policies and the targeting of federal spending may be dictated by the 
geographical distribution of HIV cases.  Among the states whose HIV test results are not being counted 
in current national statistics are California and Massachusetts, the former having one of the highest 
counts of HIV cases in the country.  According to a May 10 report by 365Gay.com, "AIDS care 
providers have been pressing the federal government to make the switch" to counting all HIV infections, 
not just those that are name-identified.  The letter, directed to CDC Director Dr. Julie Gerberding, 
states: "CDC's refusal to accept and utilize code-based data presents an inaccurate picture of the 
nation's epidemic and, in doing so, undermines the national effort to win the battle against HIV/AIDS." 
CDC maintains that it is following this policy in the name of accuracy; an individual could go to several 
different testing centers and be assigned different identification numbers at each one, and thus be 
counted multiple times, a result said to be less likely if their results are identified by name.

_FDA - Anonymous Sperm Donation Rules_ - The U.S. Food and Drug Administration announced on 
May 20 new federal rules to codify the practice of many fertility clinics and sperm banks of rejecting any 
donations of semen from gay men who had been sexually active in the previous five years.  Lambda 
Legal criticized the new rules, saying that they "look like they were written in 1982, not 2004," and that 
the rules were not based on current scientific knowledge about HIV epidemiology and transmission.  
Stated Lambda Legal E.D. Kevin Cathcart: "It's completely illogical to say that a gay monogamous man 
who practiced safe sex four years ago cannot be a sperm donor, but a heterosexual man who had high-
risk unprotected sex 14 months ago can donate his sperm." Testing procedures routinely used in such 
settings are adequate to prevent transmission of HIV through infected sperm, Cathcart asserted. 
_Lambda Legal Press Release_, May 20.

_Illinois_ - The Illinois legislature has approved H.B. 3857, a bill introduced by openly-gay and HIV+ 
Rep. Larry McKeon, authorizing organ transplants from HIV+ donors to HIV+ recipients under 
circumstances where the recipient is in imminent danger of death if they do not receive a transplanted 
organ.  The measure was developed to create an exception to existing Illinois law that imposes penalties 
for transplanting an organ harvested from an HIV+ donor.  As of the May 11 365Gay.com report on 
which this item is based, Governor Blagojevich had not yet decided whether to sign the measure, which 
passed the House on March 3 and the Senate on May 5.  A.S.L.

International AIDS Notes

_World Health Organization Data_ - The World Health Organization's annual report, released in 
Geneva in mid-May, revealed that AIDS is now the leading single cause of death worldwide for people 
ages 15-59.  According to the WHO, three million people died from AIDS during 2003, and five 
million people were newly infected with HIV.  Director-General Lee Jong Wook called for a sharp 
increase in distribution of AIDS medications, noting that at present fewer than 7 percent of the six 
million people living with HIV are receiving any sort of medical treatment. _N.Y. Times_, May 12.

_Azerbaijan_ - According to a story in Azer-Press on May 21, the number of HIV-infected people 
now counted in the country reached 635 by May 17, of whom all but a handful are citizens of the 
country.  The largest group of those infected, 47.2%, attributed the infection to use of intravenous drugs, 
and the next highest, 24.2%, to heterosexual transmission.  Only 0.5% were attributed to homosexual 
sex.  

_Libya_ - Nothing like a little conspiracy theory to bring out the worst in people. . .  A Libyan court 
sentenced six health care workers to death on May 6 on charges that they had intentionally infected 
more than 400 Libyan children with HIV.  The workers, five Bulgarian nurses and a Palestinian doctor, 
were arrested in February 1999.  They had worked at a hospital in Benghazi.  The claim was that the 
defendants were conducting medical experiments seeking a cure for AIDS and deliberately infected the 
youths as part of their research.  All six pled innocent, and defense experts testified that hygiene 
problems were the most likely cause for the infections, from which about two dozen children have died.  
Press reports indicated that the defendants have been subjected to torture, including electric shocks, 
beatings and rape, in order to elicit confessions. _Associated Press_, May 6.  The _New York Times_ 
reported on May 12 that the International Council of Nurses had appealed to British Prime Minister 
Tony Blair to intervene on behalf of the defendants with Libya's leader, Col. Muammar el-Qaddafi, with 
whom Blair is on good terms after having paid a diplomatic visit to Libya in March. 

_United Kingdom_ - The Teesside Crown Court has convicted an HIV+ man from Malawi on three 
counts of infecting women with HIV by having unprotected sex without disclosing his HIV status to his 
partners.  The defendant, Feston Konzani, will serve a ten year prison sentence and then be deported.  
He was brought into the country by Christopher Henderson, a political attache with the British High 
Commission, who had employed Konzani as a servant in Malawi.  Konzani had petitioned for asylum in 
the U.K., arguing that as a homosexual he was targeted for persecution in Malawi.  But for a 
homosexual, he was certainly heterosexually active.  One of the women he infected bore him a son.  
Another was a 15-year-old virgin.  Judge Peter Fox expressed considerable outrage at Konzani's 
behavior, stating: "I have to send a clear message to those who suffer your infection and that is that they 
must disclose it to their sexual partners and they must take protection if sexual intercourse is to occur." 
_Daily Telegraph_, May 15. A.S.L.

PUBLICATIONS NOTED & ANNOUNCEMENTS

EVENT ANNOUNCEMENTS

Out & Equal Metro New York will present an event to mark the anniversary of _Lawrence v. Texas_ 
on Wednesday, June 9, 6 to 8 pm, with MetLife hosting at One Madison Avenue, 11th Floor, 
Conference Room C.  The speakers will be Paul Smith, who argued _Lawrence v. Texas_ as a 
cooperating attorney for Lambda Legal, and Professor Tony Varona of Pace University Law School, 
formerly general counsel of Human Rights Campaign. RSVP's to GLBT@MetLife.com.  Note that 
photo identification is required for admission to the MetLife building.  Out & Equal Metro NY's mission 
statement is: "To become the NY Metro area education and information resource on LGBT matters in 
the workplace for local companies and organizations, through their employee resource groups (ERGs), 
employees and HR professionals.

The Alliance: Gay/Straight Alliance of the N.Y. State Courts and LeGaL will co-sponsor a program at 
Brooklyn Borough Hall (209 Joralemon Street) on June 10 at 6 pm titled "Same-Sex Marriage: the 
Role of the Courts in Civil Rights and Social Change." Speakers include Mayor Jason West of New 
Paltz, Mayor John Shields of Nyack, former LeGaL President Aubrey Lees, Prof. Ruthann Robson of 
CUNY Law School, Norman Siegel, former director of the NY Civil Liberties Union and counsel to 
Mayor Shields in his marriage lawsuit, and Susan Sommers, staff attorney at Lambda Legal.  A 
reception hosted by Borough President Marty Markowitz will follow the presentation.  RSVP's 
requested to 718-802-3531.

On June 26, Lambda Legal will inaugurate a new Gay Pride Month event in Dallas, Lambda at the 
Nasher (Nasher Sculpture Center).  The event will commemorate the anniversary of the monumental 
victory in _Lawrence v. Texas_, and to launch the event, Lambda will present its cooperating attorney 
in that case, Paul Smith, as keynote speaker.  Lambda will also announce its 2004 Courage Award 
recipient to somebody who has shown particular courage in standing up to advance the rights of the 
LGBT and HIV/AIDS communities.  The event will be held from 7 to 10 pm.  For ticket and location 
information, go to www.LambdaAtTheNasher.org or call 214-219-8585.

A Celebration of 20 Years of Openly Lesbian and Gay Judges in the New York Courts will take place 
on Monday, June 28, at the New York County Lawyers' Association, 14 Vesey Street, Manhattan, 
from 6 to 8 pm.  Co-sponsoring organizations, in addition to the County Lawyers' Association and their 
LGBT Issues Committee, include the Association of Lesbian and Gay Judges, the Lesbian & Gay Law 
Association of Greater New York, the LGBT Rights Committee of the Association of the Bar of the 
City of New York, and The Alliance: The Gay-Straight Alliance of the New York State Courts.  RSVP 
requested to 212-353-9118 or le_gal@earthlink.net.
LeGal and the New York County Lawyers Association will present a CLE program on same-sex 
marriage at the County Lawyers building on Vesey Street on June 30 from 6 to 9 pm.  3 MCLE credits 
in professional practice are available.   Your Law Notes editor, Arthur Leonard, will chair and 
moderate the program with the following speakers: Erica Bell of Weiss, Buell & Bell; N.Y. State 
Assembly Member Richard Gottfried, Michele Kahn, N.Y. State Democratic Commiteeman Larry 
Moss, and a representative from the office of Attorney General Eliot Spitzer.  The speakers will provide 
an overview of the legal status of same-sex marriage and will specifically focus on questions raised by 
New York couples who obtain marriages elsewhere and then return to New York, seeking to have their 
marriages recognized for various purposes.  

LESBIAN & GAY & RELATED LEGAL ISSUES:

Avila, Daniel, _To Wed & Let Wed?  The Intrusive Impact on Dissenting Religious Belief & Practices 
Created by Same-Sex Marriages_, 38 New Eng. L. Rev. 621 (Spring 2004). 

Balkin, Jack M., _Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the 
Information Society_, 79 NYU L. Rev. 1 (April 2004).

Bazelon, Emily, _A Bold Stroke_, Legal Affairs, May/June 2004, p. 30 (profile of Chief Justice 
Margaret Marshall of the Mass. S.J.C. and the fallout from the same-sex marriage decision).

Bernstein, David E., _Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental 
Rights Constitutionalism_, 92 Georgetown L.J. 1 (Nov. 2003) (treats _Lawrence v. Texas_ as a 
product of Lochner-style substantive due process). 

Beschle, Donald L., _Kant's Categorical Imperative: An Unspoken Factor in Constitutional Rights 
Balancing_, 31 Pepp. L. Rev. 949 (2004).

Bix, Brian H., _State Interest and Marriage - The Theoretical Perspective_, 32 Hofstra L. Rev. 93 (Fall 
2003).

Brooks, Kim, and Debra Parkes, _Queering Legal Education: A Project of Theoretical Discovery_, 27 
Harv. Women's L.J. 89 (Spring 2004).

Browning, Don, _Critical Familism, Civil Society, and the Law_, 32 Hofstra L. Rev. 313 (Fall 2003) 
(Conference on Marriage, Families, and Democracy).

Buseck, Gary, _Civil Marriage For Same-Sex Couples_, 38 New Eng. L. Rev. 495 (Spring 2004) 
(Keynote Address for Symposium by Legal Director of Lambda Legal).

Carbado, Devon W., and Donald Weise, _The Civil Rights Identity of Bayard Rustin_, 82 Texas L. 
Rev. 1133 (April 2004) (attempts to provide a rounded picture of the life of a major figure in the civil 
rights movement who happened to be gay).

Demleitner, Nora V., _How Much Do Western Democracies Value Family and Marriage?: Immigration 
Law's Conflicted Answers_, 32 Hofstra L. Rev. 273 (Fall 2003) (Conference on Marriage, Families, 
and Democracy).

DiFonzo, James Herbie, _Unbundling Marriage_, 32 Hofstra L. Rev. 31 (Fall 2003) (Conference on 
Marriage, Families, and Democracy).

Dubber, Markus Dirk, _Toward a Constitutional Law of Crime and Punishment_, 55 Hastings L.J. 509 
(Feb. 2004).

Elliott, R. Douglas, _The Canadian Earthquake: Same-Sex Marriage in Canada_, 38 New Eng. L. Rev. 
591 (Spring 2004).

Failinger, Marie A., _A Peace Proposal for the Same-Sex Marriage Wars: Restoring the Household to 
Its Proper Place_, 10 Wm. & Mary J. Women & L. 195 (Winter 2004).

Feigen, Brenda, _Same-Sex Marriage: An Issue of Constitutional Rights Not Moral Opinions_, 27 
Harv. Women's L.J. 345 (Spring 2004).

Friedes, Josh, _Can Same-Sex Marriages Co-Exist With Religion?_, 38 New Eng. L. Rev. 533 
(Spring 2004).

Goldberg, Suzanne, _Equality Without Tiers_, 77 S. Cal. L. Rev. 481 (March 2004) (Winner of AALS 
Legal Writing Prize; explores arguments for a more nuanced approach to equal protection analysis than 
the "tiered" system that emerged in the middle of the 20th century).
Ireland, Roderick L, _How We Do It in Massachusetts: An Overview of How the Massachusetts 
Supreme Judicial Court Has Interpreted Its State Constitution to Address Contemporary Legal Issues_, 
38 Valparaiso U. L. Rev. 405 (Spring 2004).

Harris, Andrew, _The Next Gay Marriage Battle: State v. Federal_, Nat'l L. J., May 24, 2004, p. 6.

Hurd, Heidi M., and Michael S. Moore, _Punishing Hatred and Prejudice_, 56 Stanford L. Rev. 1081 
(April 2004).

Katz, Stanley N., _A New American Dilemma?: U.S. Constitutionalism vs. International Human 
Rights_, 58 U. Miami L. Rev. 323 (Oct. 2003).

Lareau, Alyssa Connell, _Who Decides?  Genital Normalizing Surgery on Intersexed Infants_, 92 
Georgetown L.  J. 129 (Nov. 2003).

Leonard, Arthur S., Lawrence v. Texas_ and the New Law of Gay Rights_, 30 Ohio Northern U. L. 
Rev. 189 (2004). 

McClain, Linda C., _Intimate Affiliation and Democracy: Beyond Marriage?_, 32 Hofstra L. Rev. 379 
(Fall 2003) (Conference on Marriage, Families, and Democracy).
Millbank, Jenni, _Gender, Sex and Visibility in Refugee Claims on the Basis of Sexual Orientation_, 18 
Georgetown Imm. L. J. 71 (Fall 2003).

Mossman, Mary Jane, _Conversations About Families in Canadian Courts and Legislatures: Are There 
"Lessons" For the United States?_, 32 Hofstra L. Rev. 171 (Fall 2003) (Conference on Marriage, 
Families, and Democracy)..

Penfil, Kyhm, _Same-Sex Couples: When Pillow Talk is Public_, Nat'l L. J., May 3, 2004, p. 22. 
(argues that spousal testimonial privilege should be extended to same-sex partners).

Polikoff, Nancy D., _Ending Marriage As We Know It_, 32 Hofstra L. Rev. 201 (Fall 2003) 
(Conference on Marriage, Families, and Democracy).

Prol, Thomas, and Daniel Weiss, _Lifting a Lamp: Will New Jersey Create a Safe Harbor for Gay and 
Lesbian Immigration Rights?_, New Jersey Lawyer, Issue 227 (April 2004), p. 22.

Rosenbloom, Nancy L., _Democratic Families: "The Logic of Congruence" and Political Identity_, 32 
Hofstra L. Rev. 145 (Fall 2003) (Conference on Marriage, Families, and Democracy).

Samar, Vincent, _Autonomy, Gay Rights and Human Self-Fulfillment: An Argument for Modified 
Liberalism in Public Education_, 10 Wm. & Mary J. Women & L. 137 (Winter 2004).

Schneider, Elizabeth M., _Transnational Law as a Domestic Resource: Thoughts on the Case of 
Women's Rights_, 38 New Eng. L. Rev. 689 (Spring 2004) (Anna Hirsch Lecture).

Silberman, Linda, and Karin Wolfe, _The Importance of Private International Law for Family Issues in 
an Era of Globalization: Two Case Studies - International Child Abduction and Same-Sex Unions_, 32 
Hofstra L. Rev. 233 (Fall 2003) (Conference on Marriage, Families, and Democracy).

Stacey, Judith, _Toward Equal Regard for Marriages and Other Imperfect Intimate Affiliations_, 32 
Hofstra L. Rev. 331 (Fall 2003) (Conference on Marriage, Families, and Democracy).

Strasser, Mark, _Lawrence, Same-Sex Marriage and the Constitution: What Is Protected and Why?_, 
38 New Eng. L. Rev. 667 (Spring 2004).

Van Ness, Gretchen, _The Inevitability of Gay Marriage_, 38 New Eng. L. Rev. 563 (Spring 2004).

Vischer, Robert K., <MI.The Good, the Bad, and the Ugly: Rethinking the Value of Associations_, 79 
Notre Dame L. Rev. 949 (April 2004).

Wagner, David M., _Marriage: An Achievement of Centuries for the Protection of Women and 
Children_, 38 New Eng. L. Rev. 683 (Spring 2004).
Wardle, Lynn D., _The Bonds of Matrimony and the Bonds of Constitutional Democracy_, 32 Hofstra 
L. Rev. 349 (Fall 2003) (opponent of same-sex marriage launches another diatribe) (Conference on 
Marriage, Families, and Democracy).

Whitman, James Q., _The Two Western Cultures of Privacy: Dignity Versus Liberty_, 113 Yale L.J. 
1151 (April 2004).

Wintemute, Robert, _The Massachusetts Same-Sex Marriage Case: Could Decisions From Canada, 
Europe, and South Africa Help the SJC?_, 38 New Eng. L. Rev. 505 (Spring 2004).

_Student Articles:_

Bayse, Chad, _Pulling the_ Lilly_ from the Pond? Minneapolis Wades into Domestic Partner Benefits 
Legislation Once Again_, 30 Wm. Mitchell L. Rev. 931 (2004).

Blair, Melissa, _Wisconsin's Sex Offender Registration and Notification Laws: Has the Wisconsin 
Legislature Left the Criminals and the Constitution Behind?_, 87 Marquette L. Rev. 939 (Summer 
2004).

Blazier, Susan Austin, _The Irrational Use of Rational Basis Review in Lawrence v. Texas: Implications 
for Our Society_, 26 Campbell L. Rev. 21 (Spring 2004). 

Cohen, Talia, _Protecting or Dismantling the Family: A Look at Foster Families and Homosexual 
Parents After Lofton v. Kearney_, 13 Temple Pol. & Civ. Rts. L. Rev. 227 (Fall 2003) (Lofton v. 
Kearney is the 11th Circuit decision upholding the state of Florida's ban on "homosexuals" adopting 
children).

Evans, Sarah B., _Hear No Evil, Speak No Evil, See No Evil: Protecting the Nation's Children From 
Sexually Explicit Material on the Internet_, 13 Temple Pol. & Civ. Rts. L. Rev. 253 (Fall 2003).

Farhangian, Jasmin J., _A Problem of "Virtual" Proportions: The Difficulties Inherent in Tailoring Virtual 
Child Pornography Laws to Meet Constitutional Standards_, 12 J. L. & Policy 241 (2003). 

Gonzalez, Jessica A., _Decriminalizing Sexual Conduct: the Supreme Court Ruling in_ Lawrence v. 
Texas, 35 St. Mary's L.J. 685 (2004).

Kennedy, Ryan P., Ashcroft v. Free Speech Coalition_: Can We Roast the Pig Without Burning Down 
the House in Regulating 'Virtual' Child Pornography?_, 37 Akron L. Rev. 379 (2004).

Ladle, Jeremy G., _Protecting Pedophiles and Valuing Virtual Child Pornography: A Critique of 
_Ashcroft v. Free Speech Coalition_,_ 40 Idaho L. Rev. 457 (2004).
				
Lieberman, Martha Elizabeth, _The Status of Same Sex Adoption in the Keystone State Subsequent to 
the State Supreme Court's Decision in_ Adoption of R.B.F. and R.C.G., 12 J. L. & Policy 287 
(2003).	

Livingston, McKenzie A., _Out of the 'Troubles' and Into Rights: Protection for Gays, Lesbians, and 
Bisexuals in Northern Ireland Through Equality Legislation in the Belfast Agreement_, 27 Fordham Int'l 
L. J. 1207 (Feb. 2004).

Osborne, Margaret S., _Legalizing Families: Solutions to Adjudicate Parentage for Lesbian Co-
Parents_, 49 Villanova L. Rev. 363 (2004).

Poellet, Keira A., _The Homosexual Policy in the Military - Will Lawrence v. Texas Open the Closet 
Door?_, 5 Whittier L. Rev. 645 (Spring 2004).

Recent Cases, _Constitutional Law - Due Process Clause - Massachusetts Supreme Judicial Court 
Holds That Opposite-Sex Marriage Law Violates Right to Marry - Goodridge v. Department of Public 
Health, 798 N.E.2d 941 (Mass. 2003)_, 117 Harv. L. Rev. 2441 (May 2004) (critical of theoretical 
basis for court's ruling and remedy). 

Wardak, Leah, _Internet Filters and the First Amendment: Public Libraries After_ United States v. 
American Library Association, 35 Loyola Univ. Chicago L. J. 657 (Winter 2004).

Zapata, Raymon, _Child Custody in Texas and the Best Interest Standard: In the Best Interest of 
Whom?_, 6 Scholar: St. Mary's L. Rev. On Minority Issues 197 (Fall 2003).

_Specially Noted:_

The Spring 2004 issue of the New England Law Review includes symposium articles on aspects of 
same-sex marriage, under the collective title "Can Anyone Show Just Cause Why These Two Should 
Not Be Lawfully Joined Together?".  Individual articles are noted above.

In its May 24 issue, _U.S. News & World Report_ included a lengthy feature article by Dan Gilgoff 
titled "The Rise of the Gay Family." The article particularly emphasized the significant number of same-
sex couples raising children, and included tabular materials summarizing state laws affecting same-sex 
partners raising children, and enumerating the states where such families are most prevalent among all 
gay couples, with Mississippi surprisingly first on the list.

On May 25, the _Wall Street Journal_ published an article by Kris Maher titled "Career Journal: The 
Jungle," describing various employee benefits issues that must be resolved in the wake of the beginning 
of legal marriages for same-sex partners in Massachusetts (and potentially elsewhere).  

AIDS & RELATED LEGAL ISSUES:

Behrman, Greg, _The Invisible People: How the U.S. Has Slept Through the Global AIDS Pandemic, 
the Greatest Humanitarian Catastrophe of Our Time_ (Free Press, New York, 2004). 
Dolan, Kate, David Lowe, and James Shearer, _Evaluation of the Condom Distribution Program in 
New South Wales Prisons, Australia_, 32 J. L. Med. & Ethics 124 (Spring 2004). 

Wolf, Leslie E., Bernard Lo, and Lawrence O. Gostin, _Legal Barriers to Implementing 
Recommendations for Universal, Routine Prenatal HIV Testing_, 32 J. L. Med. & Ethics 137 (Spring 
2004).

EDITOR'S NOTE:

All points of view expressed in _Lesbian/Gay Law Notes_ are
those of identified writers, and are not official positions of the Lesbian
& Gay Law Association of Greater New York or the LeGaL Foundation, Inc.
All comments in _Publications Noted_ are attributable to the Editor.
Correspondence pertinent to issues covered in _Lesbian/Gay Law Notes_
is welcome and will be published subject to editing. Please address
correspondence to the Editor or send via e-mail.