LESBIAN/GAY LAW NOTES February 1994 Lesbian & Gay Law Association of Greater New York Editor-in-Chief: Professor Arthur S. Leonard, New York Law School, 57 Worth Street, New York, N.Y. 10013 ASLeonard@aol.com Circulation: Audrey Hartmann, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118 (C) 1994 by Lesbian & Gay Law Association of Greater New York ISSN 8755-9021 Contributors to this issue: Paula L. Ettelbrick, Public Policy Director, National Center for Lesbian Rights and Adjunct Professor, NY Law School; Kenneth Rutman, Adjunct Professor, New York Law School; Steven Kolodny, Esq.; Barnaby Millard, Esq.; Kevin Isom, Esq.; Todd V. Lamb, Student, NY Law School; Angela Thompson, Student, Brooklyn Law School. COWARDLY TEXAS HIGH COURT BLOWS OFF SODOMY CHALLENGE Voting 5-4, the Texas Supreme Court ruled Jan. 12 in State v. Morales, 1994 WL 6714, that it lacked jurisdiction to rule on a pending constitutional challenge to the state's sodomy law, Penal Code sec. 21.06, which penalizes only same-sex sodomy. Justice Bob Gammage wrote a sharply worded dissent for himself and Chief Justice Thomas Phillips, Justices Lloyd Doggett and Rose Spector, accusing the court of "shirking its equitable duty to provide a remedy for a wrong. . . [by allowing] the State to insulate its laws from judicial scrutiny." Three of the five justices in the majority are up for re-election this year. State v. Morales is a test case, brought in the district court in Austin as a class action attack on the state's misdemeanor sodomy law. Texas has a bifurcated judicial system, with separate civil and criminal courts, culminating in a Supreme Court for civil matters and a Court of Criminal Appeals for criminal matters. Although the state contested jurisdiction of this action on the civil equity side in district court, arguing that only the criminal courts in the context of an actual prosecution had jurisdiction to determine the constitutionality of the state's sodomy law, both the district and intermediate appeals courts rejected this argument, finding that recent decisions of the Supreme Court had afforded equity relief in cases where personal or property rights were endangered by an unconstitutional penal statute and review on the criminal side was unlikely. See 826 S.W.2d 201. Since the state conceded from the outset that it was not interested in prosecuting consensual same-sex sodomy between adults in private, it was unlikely that the issue of the sodomy law's constitutionality would ever come before the criminal courts in an actual prosecution for consensual sodomy. Thus, the courts below found that they had jurisdiction because the plaintiffs otherwise would have no remedy, and ruled that the sodomy law violated the state constitution. The Supreme Court, in an opinion by Justice John Cornyn, joined by Justices Raul Gonzalez, Jack Hightower, Nathan Hecht, and Craig Enoch, claimed that the lower courts had misconstrued its recent precedents. The court insisted that in no recent case had an equity court asserted jurisdiction to make a "naked" declaration on the constitutionality of a statute. Rather, in each case, the plaintiffs had shown either that enforcement against them of a potentially unconstitutional statute was imminent, or the plaintiffs were not seeking a declaration of unconstitutionality of a statute, but rather an injunction against a particular body whose pending enforcement of a statute against the plaintiff would cause irreparable injury to the plaintiff's personal or property rights. "An injunction will not issue unless it is shown that the respondent will engage in the activity enjoined," wrote Cornyn. "As we have already noted, there is no allegation that absent an injunction prohibiting enforcement of 21.06, that the statute will be enforced." The court reversed the decision of the court of appeals holding the statute unconstitutional, and remanded to the district court with instructions to "dismiss for want of jurisdiction." In his dissent, Justice Gammage sharply disputed the court's narrow construction of its leading recent precedent on equity jurisdiction, Passel v. Fort Worth Independent School District, 440 S.W.2d 61 (Tex. 1969), in which the court had enjoined school officials from forbidding students from attending school unless the students disclaimed all membership or participation in certain student clubs that the school officials found objectionable. In that case, according to Gammage, the court had abandoned its long-standing precedent that civil equity would only enjoin the operation of a criminal statute where irreparable injury to property rights was in question, and ruled that equity could also enjoin operation of a criminal statute where personal rights were at stake "because the plaintiffs had no way to test the penal statute because no prosecutions were threatened or even contemplated." Gammage argued that this test case fit neatly into the Passel precedent's scope. Indeed, in this case, the plaintiffs had demonstrated harms flowing from the mere existence of the statute, in contexts where their stigmatization as "criminals" was held against them in the context of employment and family law cases. "Under the court's analysis," charged Gammage, "the State may adopt all manner of criminal laws affecting the civil or personal rights of any number of citizens, and by declining to prosecute under them, ensure that no court ever reviews them. Declining to even consider the merits of the pleas for equitable relief before us today could have an impact far beyond the class of citizens to any individual or group of citizens who seek equitable relief under the Texas Constitution, because of an unenforced Texas criminal statute, for the alleged deprivation of any personal liberty or civil right which does not also involve what the court may perceive as an adequate vested property interest." Where does this leave the Texas sodomy law? The Texas Supreme Court's ruling does not go to the merits, so it is not a holding that the law is valid, although it reverses the court of appeals' ruling in this case that the law is invalid. The Supreme Court previously denied review in City of Dallas v. England, 846 S.W.2d 957 (Tex.App.--Austin 1993), in which the court of appeals held that the Dallas police department could not deny employment to a lesbian applicant on the basis of the sodomy law, because the sodomy law was unconstitutional as applied to private, consensual behavior. The Texas Supreme Court denied the city's petition for review in England because the city failed first to file a motion for rehearing in the court of appeals, apparently a jurisdictional prerequisite. (See Morales, fn5.) Thus, the denial of review in England was not a ruling on the merits by the Texas Supreme Court. Apparently, then, what we are left with is a final decision in the England case in which the court of appeals held the sodomy law unconstitutional, and a holding by the Texas Supreme Court in Morales that a Texas equity court does not have jurisdiction to consider the constitutionality of the sodomy law with respect to consensual, private behavior in a declaratory judgment proceeding. But, the facts in England appear, at first blush, to satisfy the requirements specified in Morales for finding equity court jurisdiction to declare a criminal statute unconstitutional; England did not seek a "naked" declaration of unconstitutionality, but rather an adjudication of the validity of a particular policy that disadvantaged her and that was premised on the sodomy law. The bottom line: Perhaps the cowardly Supreme Court justices up for election saw a way to leave the situation as follows: The sodomy law is unconstitutional (per England) without the Supreme Court having to rule on the merits. Or is this paragraph wishful thinking? We'd be eager to hear readers' views on this. The Morales case was devised and litigated by the Texas Human Rights Foundation and its cooperating attorneys. A.S.L. * * * The Louisiana Supreme Court heard oral argument Jan. 14 in People v. Baxley, a challenge to the constitutionality of the state's sodomy law. New Orleans attorney John Rawls argued on behalf of Baxley that the state constitution's protection for individual privacy makes the law invalid. Baxley was arrested for soliciting an undercover police officer to have oral sex for $20. The wide-ranging Louisiana law makes no distinction in criminalizing solicitation as between sex for pay of sex for free. The San Francisco Sentinel reports that Attorney Mark Pethke, representing the Orleans Parish District Attorney's Office, argued that no privacy interest was involved in a street- corner solicitation, but Chief Justice Pascal Calogero responded from the bench, "He was attempting to have sex on the street corner, was he?" Pethke claimed that Baxley was mistakenly charged with sodomy rather than solicitation, making the case a poor vehicle to challenge the sodomy law. Rawls responded that this was a civil rights case, and that "the real purpose of the sodomy law is to brand us lesbian and gay citizens as inferior. . . It makes every gay and lesbian in this state an unindicted felon and brands us as second-class citizens. It puts us in a terrible, terrible hole and we will never get out of it until the law is thrown away." A.S.L. LESBIAN/GAY LEGAL NEWS D.C. Circuit Expands Clinton Administration's Steffan Appeal Late in December, the Justice Department filed a petition with the U.S. Court of Appeals for the D.C. Circuit, seeking limited en banc review in Steffan v. Aspin, 8 F.3d 57, in which a panel of the Circuit held that the policy under which Joseph Steffan was forced to resign from the Naval Academy several years ago after he truthfully responded affirmatively to an official's question of whether he is gay violates the equal protection requirement of the Due Process Clause of the 5th Amendment of the Constitution. Apparently hoping to avoid further argument over the constitutionality of a policy that has been superseded by Congressional enactment of a version of the "don't ask, don't tell" policy in November 1993, Justice limited its petition to the question whether the federal court had jurisdiction to order the Navy to commission a particular individual, a decision that Justice argued was a matter of discretion confided to military authorities and not subject to judicial order. The court was not willing to limit review in that way, however. On Jan. 7, the court of appeals announced that en banc review was granted on the merits of the case, apparently at the instance of a majority of the circuit judges. There are ten judges on the circuit. The three members of the Steffan panel were appointed by President Carter, while the remaining seven members of the circuit were appointed by Presidents Reagan and Bush. The D.C. Circuit previously held that discharge of a service member who admitted engaging in consensual homosexual conduct with another service member on a military base did not violate the 5th Amendment, either as to privacy or equal protection, in Dronenburg v. Zech, 741 F.2d 1388, rehearing en banc denied, 746 F.2d 1579 (1984). The Steffan case is distinguishable, in that at the time of his discharge the Naval Academy had no knowledge of any sexual conduct by Joe Steffan, so Dronenburg is not technically a controlling circuit precedent on the issue presented by Steffan's case. However, the wide-ranging dicta in then-Judge Robert Bork's Dronenburg opinion, if followed by the Reagan-Bush appointees on the circuit, together with Padula v. Webster, 822 F.2d 97 (D.C.Cir. 1987), a case in which the circuit upheld the FBI's policy of excluding gays on rather flimsy grounds under an extremely conservative equal protection analysis, does not inspire much optimism that Judge Mikva's decision in Steffan will survive en banc review, so Steffan and his attorneys at Lambda Legal Defense Fund may soon face the excruciatingly difficult strategic question of whether to bring this case to the Supreme Court. A.S.L. Initiative & Referendum Politics & Litigation Updates Colorado Attorney General Gale Norton filed a motion with Denver District Judge Jeffrey Bayless, asking Bayless to make specific rulings on a variety of claims made by the plaintiffs in Evans v. Romer, 1993 WL 518586. Bayless abstained from determining a variety of constitutional claims, having determined that Colorado's Amendment 2 was unconstitutional under the theory adopted last summer by the Colorado Supreme Court. See 854 P.2d 1270. Norton is apparently trying to expand the grounds for argument in appealing Bayless's ruling to the Colorado Supreme Court and, perhaps, the U.S. Supreme Court. A.S.L. * * * Voters in Washington State may be faced with several initiatives on lesbian and gay issues in November. On Jan. 10, two different groups filed proposed initiatives with the state and will attempt to secure enough petition signatures to gain ballot access, according to a report in The Oregonian. The "Washington Committee for Equal Rights, Not Special Rights," is pushing the "Equal Rights, Not Special Rights Act," which would bar the state from granting "special rights" based on homosexuality, prevent enactment or enforcement of laws protecting lesbians and gay men from discrimination, forbid domestic partnership benefits for gays and lesbians, and prohibit schools from "presenting homosexuality as positive behavior." The "Citizens Alliance of Washington," a group inspired by the Oregon Citizens Alliance, filed its "Minority Status and Child Protection Act," which covers everything in the "Equal Rights" proposal and, in addition, forbids gays from having custody of children (even their own natural children) and prohibits same-sex marriage. The initiative sponsors need to obtain 181,667 valid voter signatures by July 8 to be placed on the ballot. The Washington legislature, which was considering enactment of a sexual orientation discrimination law in the last session, is now considering putting an initiative on the ballot to let the state's voters decide whether to enact such a law. Washington voters may thus face an array of voting options on gay rights this year. A.S.L. * * * The Springfield, Missouri, City Council has added a question to the ballot in local elections Feb. 8 on whether to retain a bias crime law that was enacted in October. The law covers anti-gay violence, and was inspired, in part, by arson against the home of a gay actor who was appearing in a controversial play at the University of Missouri. A petition signed by 1200 voters asked the council for the referendum. A.S.L. Taxpayer Seeks Invalidation of Minneapolis Partners Benefits; Other Domestic Partnership Updates James A. Lilly, a Minneapolis city taxpayer, filed suit against the city in Hennepin County, Minnesota, District Court, seeking a determination that the city council exceeded its authority by adopting a resolution authorizing the city to extend health care benefits to the domestic partners of gay and lesbian city employees. The benefits were supposed to begin Jan. 1. According to a report in the San Francisco Sentinel, Judge Deborah Hedlund issued an order temporarily blocking operation of the plan pending a hearing on the merits of the challenge. Under the "status quo" order issued by Hedlund, the city will reimburse domestic partners for actual expenses, under a previously existing "premium reimbursement plan," but will not prepay insurance premiums. A.S.L. * * * The Boston City Council voted Dec. 15 to enact the Family Registration Act, which allows lesbian and gay couples to register as domestic partners and enjoy a variety of non-economic benefits stemming from recognition as family members. The law, which Mayor Thomas Menino announced he would sign, does not extend economic benefits; a more comprehensive version of the bill containing such benefits passed the council earlier in the year but was vetoed by Mayor Raymond Flynn. A.S.L. * * * The Chicago City Council voted Dec. 15 to enact a law extending the city's three- day funeral leave benefit to encompass domestic partners of city employees. Mayor Richard Daley supported enactment of the law. According to the Chicago Tribune, an alderman who represents the heavily gay near-North Side neighborhood, Bernard Hansen, described the measure as a "foot in the door" toward a more expansive, benefits-inclusive law, but the mayor would not support the extension of pension and insurance benefits on financial grounds. A.S.L. * * * Georgia Attorney General Michael Bowers issued an opinion Dec. 10 that the city of Atlanta lacked authority to adopt a domestic partnership plan, thus putting in doubt the validity of a city ordinance passed in 1993 which is being attacked in a taxpayers suit. Bowers is the defendant in a lawsuit by Robin Shahar, whose job offer as a Georgia Assistant Attorney General was revoked when Bowers learned she had joined in a commitment ceremony with her lesbian partner. A.S.L. * * * The Los Angeles Times reported Jan. 24 about a new dental plan designed by Dentnet, Inc., a Santa Monica company, to provide group dental insurance coverage that includes domestic partners of group members. A.S.L. * * * A strike by Legal Services attorneys in New York City was resolved Dec. 23 with an agreement that includes a new health insurance plan that provides benefits for domestic partners, according to a report in New York Newsday. * * * Jerry L. Garmany is appealing a decision by federal benefits authorities to award a $17,000 savings account that his lover, Howard J. Tichenor, intended to leave to him, to Tichenor's parents. According to a story in The Washington Blade, Tichenor filled in Garmany's name on a beneficiary designation form, but mistakenly signed the form on a witness signature line rather than the line for the employee's signature; the form also lacks a signature from a second witness. While it is clear Tichenor intended to designate Garmany to receive the account, the Thrift Board ruled Dec. 6 that in the absence of a validly completed form, the money must go to Tichenor's next of kin, his parents. Garmany filed an appeal Jan. 4 with the Federal Retirement Thrift Investment Board. A.S.L. Miscellaneous Lesbian & Gay Litigation Notes The U.S. Supreme Court heard oral argument Jan. 12 in Farmer v. Brennan, No. 92-7247, in which a transsexual federal prisoner argues that the 8th Amendment was violated when prison officials placed her in the general male prison population and she was allegedly assaulted and raped. The lower federal courts had dismissed her claim, finding that prison officials were not aware of the danger of placing her in general population. Farmer is arguing on appeal that, in light of her appearance, prison officials should have known that she would have been in danger and taken appropriate steps to protect her. The oral argument is summarized at 62 U.S.L.W. 3483 (Jan. 25). A.S.L. * * * U.S. District Judge Saundra Brown Armstrong has preliminarily approved a settlement of Frank Buttino's suit against the FBI. In a Jan. 19 telephone conference with counsel, the agency agreed to pay $205,000 in damages to Buttino, as well as letting him redeposit $53,000 in the federal retirement plan. Buttino claimed he was discharged after twenty years as an agent because he is gay. Armstrong had previously refused to dismiss the case on the FBI's motion. In December, Attorney General Janet Reno announced that the agency would end its anti-gay employment policies. Attorney Michael W. Fitzgerald of Los Angeles, who represents Buttino in collaboration with Richard Gayer of San Francisco, was quoted in BNA's Daily Labor Report as indicating that Reno and FBI Director Louis Freh "were very sincere about this new policy, and there does seem to be emphasis from the top down to make this work." A.S.L. * * * In a ruling of first impression, New York State Supreme Court Justice Carol E. Huff ruled in Bracker v. Cohen, NYLJ, 1/7/94, p.22, col.3 (N.Y. County), that the New York City Council did not exceed its authority in 1991 when it amended the city's human rights law to provide a private right of action and punitive damages. Justice Huff found that the Council's general legislative authority was broad enough to support the enactment, that the matter was not preempted by the state human rights law, and that authorization of punitive damages did not violate public policy. The defendants had relied in part on Thoreson v. Penthouse Intl., Ltd., 80 N.Y.2d 490 (1992), in which New York's highest court held that punitive damages were not available under the state human rights law. A.S.L. * * * Orange County, California, Superior Court Judge Everett W. Dickey imposed a ten- year sentence on Jeffrey Raines, 19, for his January 1993 hate- inspired near-fatal assault on Loc Minh Truong, whom Raines incorrectly perceived to be gay. State v. Raines (Jan. 8, 1993). According to a report in the Los Angeles Times, Dickey announced in court that "this is clearly a hate crime. This crime was planned ahead of time, and it involved excessive violence and viciousness." Raines and accomplices went to a well-known gay hangout area intending to attack gays. Truong has also filed a civil action against Raines and his accomplice, Christopher Cribbins, 23, who received a one-year sentence. A.S.L. * * * No privacy in the military: In U.S. v. McCarthy, 54 Crim. L. Rep. (BNA) 1352 (U.S.Ct. of Military App., Sept. 30), a military appeals court ruled that the 4th Amendment does not bar warrantless searches by security officers in military dormitories where service members share rooms, finding that there is no reasonable expectation of privacy in such a setting. A.S.L. * * * On remand from the U.S. Supreme Court, the Ohio Supreme Court ruled in State v. Wyant, 1994 WL 2802, that the state's ethnic intimidation law is constitutional. The court had previously found the statute unconstitutional under the 1st Amendment, see 597 N.E.2d 450, but reconsidered the matter in light of Wisconsin v. Mitchell, 113 S.Ct. 2194 (1993), in which the Supreme Court upheld the constitutional of Wisconsin's hate crimes law. Dissenting, Justice Wright maintained that the Ohio statute should be found unconstitutional under the state's free speech constitutional provision, and was joined in dissent by Justices William Sweeney and Pfeifer, resulting in a 4-3 ruling. Holding to similar effect is a Jan. 19 decision of the Iowa Supreme Court in State v. McKnight, 1994 WL 14395, rejecting a constitutional challenge to that state's hate crime statute, which covers sexual orientation. A.S.L. * * * In a somewhat incomprehensible procedural case, the Tennessee Court of Appeals upheld the award of temporary custody to the grandparents of two children of a lesbian mother on the ground that the appeal of a temporary order was inappropriate. Flowers v. Flowers, 1993 WL 542086 (Dec. 30). The children had been living with their father pursuant to prior court orders. The mother sought an emergency temporary order of custody, apparently on the basis of the father's violent behavior toward "his various wives and these children." Instead of giving custody to the lesbian mother, the trial court awarded temporary custody to the grandparents. The appellate court avoided all of the substantive issues and ruled simply that the appeal of a temporary order was inappropriate. Abby R. Rubenfeld of Nashville, former legal director at Lambda Legal Defense, represents the lesbian mother. P.L.E. * * * Cumberland County, Pennsylvania, Judge Kevin A. Hess upheld a verdict and damage award against Daniel Miller, a victim of anti-gay employment discrimination who was sued by his former employer for breach of contract after Miller established a competing accounting business. DeMuth v. Miller (Dec. 20). Miller, who is represented by Beatrice Dohrn, Legal Director of Lambda Legal Defense Fund, argued that the state should not lend its imprimatur to anti-gay discrimination by allowing Donald DeMuth not only to fire Miller but also to force him to move out of the community in order to pursue his livelihood. According to an article in the Patriot-News of Harrisburg, Hess wrote, "There is broad disagreement on the question of whether or not one's freedom of association encompasses a right of hiring and firing based on sexual orientation, or whether a disdain for a lifestyle equates to bigotry." Miller, who was fired after he appeared on television news shows as a spokesperson for a local gay rights group, plans to appeal the ruling, which upheld a damage award of $110,000. A.S.L. * * * We reported last fall that U.S. District Judge Kimba Wood ruled in New York City Employees' Retirement System v. Securities and Exchange Commission against the validity of the SEC's recent letter ruling that publicly traded corporations do not have to place shareholder-initiated policy resolutions on employment discrimination policy in the proxy statements mailed to all shareholders. Judge Wood has since written a lengthy decision explaining her reasoning. 1994 WL 9653 (S.D.N.Y., Jan. 13). She finds that the SEC had in fact adopted a "legislative rule" which was subject to the procedural requirements of the Administrative Procedure Act, and could not adopt rules of this sort through the informal process of letter rulings. The question arose in the context of a shareholder resolution offered by the NYC public employee pension fund to require Cracker Barrel Old Country Stores to adopt an employment policy banning sexual orientation discrimination. At a shareholder meeting held subsequent to Judge Wood's original bench ruling, about 14% of the shareholder votes were cast in favor of the NYC resolution, enough to allow the proponents to introduce it again next year. A.S.L. * * * In Dietz v. State, 1994 WL 15084 (Tex.App. - Dallas, Jan. 24), the Texas Court of Appeals rejected a claim by the proprietor of an adult video store, who was convicted in an obscenity prosecution for selling gay-oriented sex videos, that the jury should have been instructed to apply the test of "prurient interest" based not on general community standards but rather on the standards prevailing in the gay male community. The court also upheld the Texas obscenity law against constitutional challenge, and upheld the trial court's evidentiary rulings with respect to opinion questions on whether the video was obscene that were answered by police officials as "expert" witnesses. A.S.L. Law & Society Notes The U.S. Supreme Court unanimously ruled Jan. 24 that abortion clinics may use the RICO chapter of the Organized Crime Control Act of 1970, 18 U.S.C. secs. 1961-1968, against anti-abortion groups that conspire to shut down the clinics through a variety of coercive tactics. National Organization for Women v. Scheidler, 1994 WL 13716. In so ruling, the Court resolved a split of circuit authority on whether RICO applies only to "commercial" enterprises, holding that no commercial element need be shown to bring a racketeering conspiracy within the scope of RICO. Justice Souter wrote a concurring opinion, joined by Justice Kennedy, observing that using RICO in this sort of case may raise 1st Amendment issues, and that even if a RICO violation is found, 1st Amendment concerns about protecting the right of politically-motivated protesters might lead to some limitation on the remedy, concluding: ". . .I think it prudent to notice that RICO actions could deter protected advocacy and to caution courts applying RICO to bear in mind the First Amendment interests that could be at stake." The Court's opinion holds potential dangers for all politically-motivated direct-action groups, such as ACT- UP or Queer Nation. A.S.L. * * * The Huntington Beach, California, Union High School District board has rejected attempts by conservative parents to stop a support group for gay students from meeting at the high school. The board voted 4-1 on Jan. 13 to maintain an open-access policy at Fountain Valley High School; under federal law, if a school that receives federal funds allows any extra-curricular student groups to meet on campus, it must maintain an "open access" policy that does not bar particular groups on the basis of their subject-matter interest. The law was originally enacted to require schools to accommodate those students who wished to form prayer groups. A similar dispute is ongoing in the Austin, Texas, public schools. A.S.L. * * * The Washington Blade reports that U.S. Interior Secretary Bruce Babbitt omitted sexual orientation from a departmental non-discrimination policy statement to avoid having to end joint programs with the Boy Scouts of America in the national parks system, which is administered by the Interior Department. A.S.L. * * * The British Parliament is debating a proposal to lower the age of consent for gay sex to 16, the same as non-gay sex. The current age is 21, the highest of any EEC country. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS Sharply Divided N.Y. Appellate Court Finds City Schools Condom Policy Unconstitutional In a 3-2 ruling, the N.Y. Appellate Division, 2nd Department, ruled that New York City schools may not provide condoms to students unless parents are given the opportunity to withhold consent. Matter of Alfonso v. Fernandez, 1993 WL 540636 (Dec. 30). Justice Vincent Pizzuto, writing for the court, found that the 1991 Board of Education resolution requiring that condoms be provided to students in New York City schools violated the constitutional rights of parents to control the upbringing of their children. Additionally, the court relied on a state health law provision which requires minors under 18 to obtain parental consent before receiving "health services." The case originated with a 1987 directive from the N.Y.S. Commissioner of Education for elementary and secondary schools to include information about HIV in health education programs. In 1991, the City Board of Education voted to establish an expanded HIV/AIDS education program in the public high schools. This program had two components: (1) Classroom instruction would be provided on various aspects of HIV/AIDS including means of transmission and methods of prevention. Although the instruction was mandatory, it included a provision whereby parents or guardians could opt-out of the program with assurance that the child would receive such instruction at home. (2) Condoms would be provided to students who request them. Trained professionals would dispense the condoms and make personal health guidance available to these students. This component contained no parental opt-out provision. Parents of New York City public school students brought an article 78 proceeding against the Board, challenging the constitutionality of the condom distribution component. In deciding the case, the court stated that its role is limited: to determine whether the condom distribution component violated the parents' constitutional, statutory or common-law rights. Pizzuto began by reviewing the common law rule that consent from a parent or guardian is required to receive health services. This rule has been codified in Public Health Law sec. 2504, which additionally sets forth exceptions to the general incapacity of minors to consent to receiving health services. As its first inquiry, the court examined whether dispensing condoms constituted a "health service." The court stated that distributing condoms is not an aspect of health education in disease prevention, but rather a means of disease prevention. The program is intended to encourage and enable students to use condoms when they engage in sexual activity. Thus, the court concluded, it is a "health service." The court bolstered its determination by citing a regulation of the Commissioner of New York State Department of Education, a statement from the Acting Commissioner of the New York City Department of Health and a resolution presented by the Chancellor of New York City public schools. After concluding that the distribution program is governed by sec. 2504, the court looked for an applicable exception. While there is no doubt the state has a compelling interest in controlling AIDS and educating youths about the disease, the statute contains no specific provision authorizing condom distribution to minors without express consent or an opt-out provision. The court noted that several laws entitle eligible minors to confidential services from a provider who treats them under the auspices of a public assistance program. But such a situation is covered by a legislatively-enacted exception to the common-law rule requiring parental consent. The court reasoned that the condom distribution in this case is through public high schools where attendance is mandatory. Even though condoms are non-medicinal, and do not require a prescription, it is very different from the wholly voluntary nature of their distribution at clinics or as part of public assistance programs. The court claimed that its ruling in no way conflicted with the Supreme Court's decision in Carey v. Population Services, 431 U.S. 678 (holding that a New York state statute criminalizing the sale and distribution of contraceptive devices to minors under 16 was unconstitutional). Finding that the condom distribution component of the program is unconstitutional does not affect or restrict the access the students have to condoms which existed prior to the enactment of the program. The court seemed especially troubled by the involuntary nature of school attendance. Parents are being compelled to send their children "into an environment where they will be permitted, even encouraged, to obtain a contraceptive device, which the parents disfavor as a matter of private belief." Because the constitution (both federal and state) gives parents the right to regulate their childrens' sexual behavior, the state must have a compelling interest and the policy must be essential to serving that interest. Here, the court asserted, there may be a compelling interest in controlling AIDS, but the policy is not essential. The court viewed the policy as a means for the City to impose its judgment about the right to receive contraceptives, despite the fact that it interferes with the parents' rights to discourage sexual activity. The court stated that the policy was not necessary to meet the objective of controlling AIDS because minors have ready access to condoms. In a flippant statement, it noted that condoms may be purchased for "about the same price as a slice of pizza." Finally, the court noted that the policy did not violate the parents' right to free exercise of their religion. Such a violation could not be established merely because some parents found condom distribution objectionable. Justice Geraldine Eiber wrote a dissent which began by citing statistics to establish a compelling need for the program. Although N.Y. City adolescents comprise 3% of the nation's population, they account for 20% of all reported AIDS cases among adolescents. She reported that the Board had previously rejected an opt-out provision because of the fear that identification would seriously limit participation in the program. Students whose parents disapprove of premarital sex are those "in need of a place where they can obtain condoms without having to account for any expenditures or having to identify themselves." Justice Eiber then criticized the court's characterization of condom distribution as a "health service." She stated that although the program is health-related, it is not the same as invasive medical, dental, health and hospital treatment contemplated by the common law or codified in the Public Health Law. She argued that the ruling blatantly conflicts with the Supreme Court's ruling in Carey, which struck down a New York statute criminalizing the sale or distribution of contraceptive devices to minors. Additionally, she pointed out the anomalous result that minors are permitted to obtain abortions and treatment for sexually transmitted diseases without parental consent or notification in New York, but now they may not have access to means by which they can prevent unwanted pregnancy or protect themselves from sexually transmitted diseases, including HIV. Eiber reasoned that if the distribution of condoms is a "health service" which requires parental consent, then family planning clinics that distribute condoms and other contraceptive devices and commercial sellers are also in violation of the common law and statute. Eiber castigated the majority for bringing the case within the realm of constitutional parental rights like those in Meyer v. Nebraska, 262 U.S. 390 (establishing the right of parents to have their children learn foreign language in school). The majority stated that parents who send their children to public high school are required to surrender their right to influence and guide the sexual activity of their children. Eiber contended that although parents are required to send their children to school, the children are not compelled to participate in the condom distribution program. That the children are in close proximity to a potential source for obtaining condoms does not change the voluntary nature of the program. Further, the program is consistent with both the strong public policy interest in slowing the spread of HIV, and the role of schools in providing preventative health care. Justice Eiber concluded with a point that was underscored by Justice Sondra Miller in a separate dissent. Practically, many students who are served by the program do not have parents who will provide them with guidance. Given the severe consequence of HIV transmission, providing condoms offers practical protection to a high risk population, and "outweighs the minimal intrusion into the parent/child relationship of the more protected, more fortunate portion of the adolescent population of New York City." A.T. * * * On Jan. 11, in compliance with the Appellate Division's ruling, the NYC Board of Education voted, 5-2, to modify its condom distribution program by allowing parents to prohibit their children from participating in the program. However, the Board rejected a proposal to restructure the program so that students could participate only if their parents gave affirmative approval. A.S.L. Federal Court Refuses to Dismiss Claims by HIV+ Prisoner U.S. District Judge James F. Holderman, Jr., refused to dismiss claims by Dennis Anderson, an HIV+ state prisoner, that prison officials violated his federal constitutional rights and Illinois state confidentiality laws by revealing Anderson's HIV status to various guards and inmates and denying him various routine privileges of prison life solely because of his HIV status. Anderson v. Romero, 1994 WL 9645 (N.D.Ill., Jan. 12). Anderson claimed that he was not allowed to receive haircuts, and was deprived of prison yard privileges. The defendants claimed that even if Anderson was correct in claiming constitutional and statutory violations, the defendants were immune from suit both as to privacy claims and as to due process/equal protection and state statutory claims. Holderman found a split of authority among federal courts about the extent to which federal constitutional privacy extended to a prisoner's HIV status. This is significant because qualified immunity would protect the prison officials unless there was a well-established constitutional rights affected by their conduct in the course of official duties. On the other hand, an Illinois law specifically protects the confidentiality of HIV-related information, although it includes certain exceptions that might, questionably, apply to what was alleged in this case. Prisoner Anderson emphasized that the officials were not following any formally adopted prison policy in revealing his HIV status, but rather had casually revealed it in individual remarks. On balance, Holderman concluded that development of a full trial record would be necessary to make a determination on the immunity claim, and thus refused to dismiss the privacy count. On the various counts concerning deprivation of barber and yard privileges, Holderman again found there was "a close question," but denied the defendants' motions to dismiss. "While HIV- positive inmates may be treated differently than the general prison population," he wrote, whether depriving HIV-positive inmates of all access to the exercise yard and barbers is rationally related to a legitimate prison interest is subject to dispute." Holderman also refused to dismiss the pendent state law claims, pointing out that Illinois corrections laws include mandatory language in requiring that prisoners be given access to barbers and yard privileges, thus creating a due process "liberty interest" and placing a burden of justification on the prison officials for denying these privileges to Anderson. Concluding his opinion, Holderman set a status conference and wrote, "The parties are strongly urged to discuss settlement." A.S.L. Louisiana Appeals Court Rules on AIDS Distress Claims A divided panel of the Louisiana Court of Appeal, 4th Circuit, reversed the dismissal of Jo Ann Vallery's claim, based upon her husband's possible exposure to the HIV virus during his employment with the defendant, for negligent infliction of emotional distress. Vallery v. Southern Baptist Hospital, 1993 WL 539839 (Dec. 30, 1993). The court also affirmed the dismissal of the Vallerys' other claims as being barred by the exclusive remedy portion of the state's worker's compensation statute. Albert Vallery worked at Southern Baptist Hospital as a security guard. One night, while he was subduing an unruly patient, the patient bled on Vallery's hand. Vallery went home and had sex with his wife. The next day, the hospital informed him that the patient had AIDS and that he had been exposed to HIV. The hospital enrolled Mr. and Mrs. Vallery in a testing program for one year and advised them to use condoms during that year. They both continued to test negative for HIV antibodies for over two years. Both Mr. and Mrs. Vallery sued the hospital for their emotional suffering during the time they feared they might have been exposed, and for loss of consortium for having to use condoms. Writing for the court, Judge Joan Bernard Armstrong affirmed dismissal of both of Mr. Vallery's claims as being within the worker's compensation statute, which provides an exclusive remedy for work-related injuries. Nothing in Mr. Vallery's allegations could be construed as an intentional act by the hospital, that could bring his claims within an exception to the exclusive remedy provision. The court dismissed Mrs. Vallery's loss of consortium claim as being derivative of her husband's claims and therefore within the exclusive remedy provision. With regard to Mrs. Vallery's emotional distress claim, however, the court reversed its dismissal. She had alleged the presence of HIV (the patient with AIDS) and what could be found to be a "channel of infection" (her husband's exposure to the patient's blood and subsequent sexual relations with her). The panel disagreed as to whether the risk of her injury was within the scope of the hospital's duty. The majority and concurrences found the allegations sufficient, each by a slightly different mode of analysis. Two dissenting judges would have found no duty, based largely on public policy implications of finding a duty between a hospital and a third party who was neither a patient nor an employee. D.W. Illinois Supreme Court Upholds HIV Transmission Statute; Louisiana Appeals Court Sustains HIV Transmission Conviction In a brief, angry-sounding decision by Justice Heiple, the Illinois Supreme Court unanimously rejected a constitutional due process challenge to a state law criminalizing knowing transmission of HIV through sexual contact. People v. Russell, 1994 WL 12502 (Jan. 20). The consolidated appeal concerned separate criminal prosecutions of Caretha Russell and Timothy Lunsford. Russell was charged with engaging in sexual intercourse with Daren Smith without telling Smith that she was infected. Lunsford was charged with raping a woman at a time when he knew he was HIV-infected. The Supreme Court opinion does not mention whether HIV was actually transmitted in either case. Both defendants were charged under 720 ILCS 5/12-16.2, which provides: "A person commits criminal transmission of HIV when he or she, knowing that he or she is infected with HIV: (1) engages in intimate contact with another," and states that "for purposes of this section. . . Intimate contact with another means the exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of HIV." This language creates a latent ambiguity, since it does not specify in so many words that HIV have actually been transmitted in order for conduct to come within the statute. The trial judges in both cases found the statute vague enough to be unconstitutional. The Supreme Court disagreed with this conclusion, first dismissing arguments that the statute had anything to do with rights of free speech or intimate association. Heiple then asserted that "the vagueness argument is in error both facially and factually. Reference to the specific language of the statute makes this clear. . . Vagueness, like beauty, may be in the eye of the beholder. We, however, read the statute as being sufficiently clear and explicit so that a person of ordinary intelligence need not have to guess at its meaning or application. . . That the statute might open the innocent conduct of others to possible prosecution is a matter of pure speculation and conjecture which is not before us in these consolidated cases. We are here concerned only with the specific conduct of these defendants and the application of the statute to them." The court reversed and remanded for purposes of prosecuting the defendants. A.S.L. * * * In State v. Gamberella, 1993 WL 539590 (La.App., 1st Cir., Dec. 29), the defendant was convicted of one count of intentionally exposing his girlfriend to HIV, a felony. As a second felony habitual offender, he was sentenced to ten years imprisonment at hard labor. The opinion by Judge Fogg states that Gamberella knew he had HIV before he began his relationship with his girlfriend, that they used condoms until one failed and she got pregnant, and that they did not use condoms thereafter. During a physical exam after the relationship terminated, the girlfriend tested HIV+. Gamberella appealed the trial court's denial of his motion to suppress his HIV test results, which had been obtained initially through an investigative subpoena by the DA's office, rather than through a statutory motion for disclosure of HIV status. The latter motion was only filed afterwards. The appeals court affirmed, ruling that even thought the procedure used may have been defective, unconstitutionally obtained material could be used if it was inevitable that the evidence thus obtained would have been discovered in a constitutional manner. Gamberella also argued that each of the statutory elements of "intentional. . .exposure. . .through sexual contact. . .without knowing and lawful consent of the victim" was so vague as to make the statute unconstitutional. The court disagreed, finding that each element was readily understandable to a person of reasonable intelligence. Finally, Gamberella challenged his sentence as excessive in light of his compromised physical condition. The court again disagreed, finding the sentence within statutory limits and reasonable in light of his "blatant disregard" for the woman involved. S.K. AIDS Transmission Litigation Notes The Montana Supreme Court dismissed an action alleging negligence and breach of contract when plaintiff, a Respiratory Therapist, used a defective Arterial Blood Gas kit to test the blood of a patient with AIDS. The ruling in Blythe v. Radiometer, Inc., 1993 WL 530996 (Dec. 22), was based on an interpretation of the Worker's Compensation Act, which provides the sole remedy to an employee unless the injury was caused by an intentional and malicious act of a fellow employee. The plaintiff, Blythe, was pricked with a needle from the defective kit in 1989 and has not tested positive for HIV. He claims, however, that his fear of contracting AIDS has caused him serious psychological problems that have prevented him from working since 1991. Blythe claimed his employer purchased the kits knowing that they were defective and thereby presented a risk to employees of being pricked while using the kits. Although the court acknowledged that the employer knowingly provided its employees with the defective kits, it ruled that the plaintiff's sole remedy was through worker's compensation. A.T. * * * Under the facts of Schaefer v. Gulf Coast Regional Blood Center, 1994 WL 334 (5th Cir., Jan. 4), a father learned in 1987 that he was HIV+ and was told by his doctor that the probable cause of the infection was a 1983 blood transfusion. The father died in 1991 of AIDS-related complications. His children sued in 1992 for wrongful death due to the transfusion. Texas has a two-year statute of limitations under which the father's cause of action accrued when he received the transfusion in 1983. But the Texas discovery rule tolls the statute of limitations until a plaintiff discovers, or should have discovered through the exercise of reasonable care and diligence, the nature of his injury and its cause in fact. See Glasscock v. Armstrong Cork Co., 946 F.2d 1085 (5th Cir.), cert. denied, 112 S.Ct. 1778 (1991). Under this rule, the statute of limitations began to toll in 1987. Thus, in 1989 the statute of limitations nullified any cause of action which the father could have brought, a full two years before his death. Because claims under the Texas Wrongful Death Act & Survival Statute are derivative actions, a plaintiff can only recover if the decedent could have brought the action had he lived. Since the father was time-barred immediately before his death and could not have brought an action himself, the court held that his children's claim was likewise time-barred, even though they filed suit within two years of the father's death. K.I. AIDS Criminal Law Notes U.S. Magistrate Calvin Botley (S.D.Tex.) issued an order Jan. 10 refusing to dismiss a petition for habeas corpus in Weeks v. Morales, No. H-93-3708, in which Curtis Weeks, an HIV+ man serving a life sentence for spitting at a prison guard, contests the constitutionality of his conviction in Weeks v. Texas, 834 S.W.2d 559 (Tex.Ct.App. 1992). A jury convicted Weeks of attempted murder in 1989 for spitting at the guard while he was being transported between prisons just months before being scheduled to release after serving a term for robbery. There is no evidence that HIV can be transmitted by spitting. Botley ordered the state to respond to the arguments made in Weeks' habeas petition. Weeks is represented in the habeas action by ACLU cooperating attorney Curt P. Beck of Weil, Gotschal & Manges and ACLU staff attorneys Ruth Harlow and Bill Rubenstein. A.S.L. * * * A Wisconsin appeals court refused to permit an HIV+ man to serve a 7-month sentence for a traffic conviction at home, even though the prosecution had granted his request for home detention. In Wisconsin v. Krueger, 1994 WL 6879 (Jan. 13) (not certified for publication), Jeffrey Krueger pleaded no contest to driving after his license had been revoked. He negotiated a 7- month sentence, which the prosecution agreed to let him serve at home under electronic monitoring because of the health risks posed by a jail term. The trial court, however, disallowed that agreement and ordered Krueger to serve at least 90 days in jail, despite a letter from Krueger's doctor explaining that a jail sentence would increase the potential of contracting a fatal infection. The appeals court affirmed. Although Krueger cited a Wisconsin statute that ostensibly gives courts discretion to let defendants serve county jail sentences at home -- "a court may impose a sentence of detention at the defendant's place of residence or other place designated by the court" -- Judge Dykman wrote for the court that the operator's license law says offenders "shall be imprisoned" and that "a sentence of home detention is not a sentence of imprisonment." Krueger cited another statute giving the county sheriff the authority to let prisoners serve at home, but the court read this to mean that only sheriffs had this power. The court voiced concern "that imprisonment in the county jail may pose health risks to Krueger," but maintained it had no authority to allow him to avoid a jail sentence. (The legislature amended the operator's license law to repeal the mandatory sentence provision, but the repeal was not in effect at the time of Krueger's case.) K.R. * * * A criminal defendant was charged with reckless endangerment and attempted assault after biting a mental health care worker at the Rockland County (N.Y.) Medical Center and announcing she had AIDS. The prosecution sought an order pursuant to Public Health Law sec. 2785(2)(a), compelling the defendant to disclose the results of her HIV test. The court ordered the disclosure since the prosecution established a compelling need for the information. The court found that the information was needed to establish the defendant's state of mind. Additionally, the court noted that the defendant's public announcements effectively waived her privacy interest. Matter of A.T., NYLJ, 1/4/94, p.39 col. 3. A.T. Miscellaneous AIDS Litigation Notes In one of the longest-running AIDS discrimination cases in the nation, the New York State Division of Human Rights announced Jan. 7 that it has ordered the law firm of Baker & McKenzie to pay about $500,000 in damages to the estate of Geoffrey Bowers, who died from AIDS in 1987, shortly after completing testimony in the case contesting his discharge as a B & M staff attorney the previous year. The amount was about half of that originally recommended by an administrative law judge. B & M defended on the same grounds cited by the fictional law firm in the film Philadelphia: that Bowers was dismissed due to poor performance, and that the firm was not aware he had AIDS at the time. The Division called the firm's testimony "highly suspect," according to a Jan. 10 report in the New York Law Journal. Cavagnuolo, Executor for Estate of Bowers v. Baker & McKenzie, No. 1B-E-D-86- 115824. The firm announced it would appeal the order to the New York state courts. See BNA Daily Labor Report No. 7, 1/11/94, p. A-10. A.S.L. * * * The U.S. Court of Appeals for the 2nd Circuit has stayed the deportation of an HIV-infected man of Columbian origin to allow him to argue to the Bureau of Immigration Appeals that the conditions for PWAs in Colombia are such that it would be improper to deport him there. Arango-Aradondo v. Immigration and Naturalization Service, 1994 WL 6752 (Jan. 10). Arango has been in the U.S. for almost thirty years, having entered legally as a permanent resident, but was apparently involved in illicit drug transactions and, upon his most recent conviction, was targeted for deportation as a persistent felon by the INS. He raised his HIV status in his deportation hearing as a basis for waiving deportation, but the ALJ ordered deportation anyway. Arando appealed to the 2nd Circuit, claiming, inter alia, ineffective assistance of counsel, since his non-lawyer representative presented no evidence about the abysmal conditions for unemployed PWAs in Colombia. In his opinion for the court, Judge Walker held that the ineffective assistance claim must be raised first with the Bureau of Immigration Appeals, but agreed to stay Arando's deportation order for sixty days to allow him to file an appeal to reopen his case administratively, and a further stay until such time as the BIA shall ruled on his case. A.S.L. * * * In Toney v. U.S. Healthcare, 1993 WL 460802 (E.D.Pa.), we reported that the U.S. District Court in Pennsylvania granted summary judgment against or dismissed the HIV discrimination claims of plaintiff William R. Toney against defendant U.S. Healthcare, Inc., and two physicians. Toney alleged he was unable to find a primary care physician under his HMO, basing his claim on sec. 504 of the federal Rehabilitation Act. In a companion decision, the court has now granted summary judgment in favor of the final defendants, Dr. George Bradford, who allegedly refused to treat Toney once he learned of Toney's HIV status, and Dr. Peter Binnion, who treated Toney between July and October, 1992, claiming that Binnion allegedly refused to act as Toney's treating physician. Toney v. U.S. Healthcare, 1993 WL 547004 (E.D.Pa., Dec. 30). Bradford successfully asserted Pennsylvania's two-year statute of limitations for personal injury claims. The court found that the doctor-patient relationship between Toney and Binnion ended when the HMO notified Binnion that he would no longer be a covered provider, but that Binnion, who had other HIV+ patients, continued to treat Toney. The court agreed with Binnion's argument that he was entitled to summary judgment because Toney challenged treatment decisions that are non-reviewable under sec. 504. Addressing Toney's Americans with Disabilities Act claim against Binnion, the court held that Toney's "allegation that plaintiff could not continue as Dr. Binnion's patient after his HMO terminated its contract with the physician, read in conjunction with the affidavits of both parties, defeats a charge of discriminatory behavior by Dr. Binnion. . . plaintiff's complaint does not state that the alleged denial by Dr. Binnion of services to him was based on any disability." As we previously noted, this litigation points up the need for HMOs and any proposed national health care plan to include HIV specialists as "primary care physicians." B.M. * * * A funeral director who conducted services for a PWA using an empty casket must pay $175,000 in damages for breach of contract, negligence, fraud, and intentional and negligent infliction of emotional distress to the mother of the deceased, according to a report in BNA's AIDS Policy & Law. In a Philadelphia jury trial concluded Dec. 15, Louise Purdie claimed that funeral director John M. Price agreed to conduct a funeral for Purdie's son, Kelvin, and that Price said he was required by law to conduct a closed-casket ceremony. It later turned out that Price used an empty casket for the ceremony, citing fear of HIV transmission as the reason for not placing Kelvin's body in the casket. Purdie is represented in Doe v. Price, No. 5914 (Penn. Ct. Common Pleas, Philadelphia), by Nan Feyler of the AIDS Law Project of Pennsylvania and cooperating attorney Andrew Chirls of Wolf, Block, Schoor and Solis-Cohen. A.S.L. * * * The National Law Journal reported that the Georgia Court of Appeals decided en banc to reverse a ruling by one its panels awarding $500,100 in damages to a person with AIDS who claimed his privacy had been invaded when Macon television station WMAZ-TV revealed his identity in a broadcast. The court ruled in the Dec. 27 decision (not yet available on electronic databases) that the plaintiff waived his privacy claim by telling a variety of people about his medical condition. A.S.L. AIDS Law & Society Notes Correcting a homophobic error of the 1980s, the N.Y. State Public Health Council voted Jan. 21 to amend regulations defining unsafe sexual practices to include vaginal intercourse. The regulations specify circumstances under which public health authorities in the state can close down places of public accommodation for health purposes. As originally passed, the regulations authorized shutting down any business that facilitated unsafe sexual practices among customers, such as back room bars, bathhouses, adult bookstores, and other sex clubs. Shortly after the regulation was revised, N.Y.C. authorities temporarily shut down the Adonis Theater in Times Square, where health inspectors claim to have observed unsafe sexual activity occurring and no attempt by the management to curb it. A.S.L. * * * Attempting to bring new coordination to the global struggle against AIDS, the United Nations announced that efforts are underway to merge the AIDS programs of the World Health Organization, the U.N. Development Program, the U.N. Population Fund, UNICEF and UNESCO into one consolidated program. A holdout: the World Bank, which announced it is still studying the proposal. A.S.L. * * * Controversy roils in N.Y. and Boston about safer sex ads in public transit systems. The N.Y. City Council is considering a measure introduced by Noach Dear that would require the Transit Authority to ban "indecent" ads from trains and buses. Dear's measure was filed in response to a series of explicit safe sex posters by GMHC that appeared in the transit system in recent weeks. In Boston, the Massachusetts Bay Transportation Authority's attempt to censor safe-sex advertising submitted by the AIDS Action Committee of Massachusetts earned a stern rebuke from U.S. District Judge Rya Zobel, who issued an opinion (not published) on Dec. 29, finding the censorship violative of the 1st Amendment. According to a story in the Boston Globe, Zobel called the advertisements "witty" and "clever," found that advertising space in the transit system was a "public forum," and that the MBTA had inappropriately attempted to censor on the basis of subject matter. The ads used outrageous sexual puns to draw attention to the desirability of using condoms. MBTA argued that children had to be protected from this sexually explicit material. Replied Zobel: "That concern evaporates on examination because shielding children from the advertisements is insufficiently compelling to justify the resulting limitation of speech. . . Moreover, minors too are entitled to `a significant measure of First Amendment protection.'" A.S.L. * * * American Airlines will provide extra training for gate agents and flight attendants on dealing with passengers with AIDS, under an agreement with Lambda Legal Defense Fund, representing Timothy Holless, a person with AIDS who was ejected from an American flight in November. Lambda staff attorney Amelia Craig of Los Angeles represented Holless in negotiating the agreement. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS ANNOUNCEMENTS The 1993 Case Table for Lesbian/Gay Law Notes is now being compiled by Todd Lamb, NYLS '94. It will be mailed to institutional subscribers (libraries) as soon as it is ready. Individual subscribers who desire a copy should send a 52 cent stamped, self-addressed business-size envelope to LeGaL - Law Notes Case Table, 799 Broadway, Suite 340, New York NY 10003. * * * The ACLU Women's Rights Project seeks a volunteer to organize, launch and coordinate a nation-wide letter-writing campaign to solicit letters from girls and women about their experience of sexual harassment in school and at work. The position will call for public speaking skills, coordination with various ACLU departments and state affiliates, and the ability to work independently with minimal supervision. Application letters and resumes should be sent to Acting Director Sara L. Mandelbaum, ACLU Women's Rights Project, 132 W. 43 St., New York, NY 10036, as soon as possible. LESBIAN & GAY & RELATED LEGAL ISSUES: Backer, Larry Cata, Raping Sodomy and Sodomizing Rape: A Morality Tale About the Transformation of Modern Sodomy Jurisprudence, 21 Am. J. Crim. L. 37 (Fall 1993) (shows how sodomy laws have been transposed into rape laws through application and interpretation). Buchanan, G. Sidney, A Very Rational Court, 30 Houston L. Rev. 1509 (Winter 1993) (demonstrates gradual abandonment of "heightened scrutiny" by Supreme Court in a variety of fields, including equal protection, free speech, and free exercise of religion). Cameron, Edwin, Sexual Orientation and the Constitution: A Test for Human Rights, 110 South African L.J. 450 (Aug. 1993). Carrell, Michael R. and Everett E. Mann, Defining Workforce Diversity Programs and Practices in Operation, 44 Lab. L. J. 755 (Dec. 1993) (survey of personnel professionals yielded few who suggested sexual orientation was an appropriate factor to include in workplace diversity programs). Carroll, Anne Berrill, Religion, Politics, and the IRS: Defining the Limits of Tax Law Controls on Political Expression by Churches, 76 Marquette L. Rev. 217 (Fall 1992). Frohnmayer, John E., Giving Offense, 29 Gonzaga L. Rev. 1 (1993/94) (William O. Douglas Lecture). Goldberg, Suzanne B., Give Me Liberty or Give Me Death: Political Asylum and the Global Persecution of Lesbians and Gay Men, 26 Cornell Int'l L. J. 605 (1993). Harbeck, Karen M., Coming Out of the Classroom Closet: Gay and Lesbian Students, Teachers, and Curricula (Haworth Press, Binghamton, NY, 1992). Ingram, John Dwight, In Vitro Fertilization: Problems and Solutions, 98 Dickinson L. Rev. 67 (Fall 1993). Jolin, Annette, On the Backs of Working Prostitutes: Feminist Theory and Prostitution Policy, 40 Crime & Delinquency 69 (Jan. 1994). Kruger, Daniel H., and Michael McEachern, An Analysis of Arbitration Decisions Involving Off-Duty Conduct of Public Employees, 14 Gov't Union Rev. No. 4, 29 (Fall 1993). Mather, Victoria Mikesell, Evolution and Revolution in Family Law, 25 St. Mary's L. J. 405 (1993). Wallace, Donald H., The Eighth Amendment and Prison Deprivations: Historical Revisions, 30 Crim L. Bull. 5 (Jan.-Feb. 1994). Yoo, John Choon, Our Declaratory Ninth Amendment, 42 Emory L.J. 967 (Fall 1993). Student Notes & Comments: Calkins, Jeffrey S., Sex and the Superstar Republican: A Review of and Commentary Upon Sex and Reason, 20 Western St. U. L. Rev. 611 (Spring 1993). Flora, Phyllis A., Constitutional Law -- Content-Neutral Requirement Established for Expression Otherwise Unprotected Under the First Amendment -- R.A.V. v. City of St. Paul, 27 Suffolk U. L. Rev. 175 (Spring 1993). Glaser, Steven R., Sticks and Stones May Break My Bones, But Words Can Never Hurt Me: Regulating Speech on University Campuses, 76 Marquette L. Rev. 265 (Fall 1992). Gustafson, Je'Nell Blocher, The Natural Father, I Presume: The Natural Father's Rights Versus the Best Interests of the Child, 1 San Diego Justice J. 489 (Summer 1993). Hicks, Pamela K., Castration of Sexual Offenders: Legal and Ethical Issues, 14 J. Legal Med. 641 (Dec. 1993). Mungovan, Timothy W., Constitutional Law -- Protection of Children Against Sexual Exploitation Act Chills Constitutionally Protected Speech -- United States v. X-Citement Video, Inc., 27 Suffolk U. L. Rev. 221 (Spring 1993). Oh, Alex Young K., Using Employment Testers to Detect Discrimination: An Ethical and Legal Analysis, 7 Georgetown J. Legal Ethics 473 (Fall 1993). Russman, David P., Alternative Families: In Whose Best Interests?, 27 Suffolk U. L. Rev. 31 (Spring 1993). Schmitz, Maxine, Doe v. Boeing: The Employer's Duty to Reasonably Accommodate the Handicapped Employee, 29 Gonzaga L. Rev. 205 (1993/94) (on transsexualism as a handicap under state civil rights law). Stone, Robert D., The American Military: We're Looking for a Few Good [Straight] Men, 29 Gonzaga L. Rev. 133 (1993/94). Specially Noted: Richard Mohr, the University of Illinois philosopher who specializes on lesbian and gay public policy issues (his two previous books are Gays/Justice and Gay Ideas), has a new book which will be available at the beginning of March: A More Perfect Union: Why Straight America Must Stand Up for Gay Rights (Beacon Press, 125 pages). This book will be of special interest for those who are doing legislative and political work, since it provides the reader with a variety of strong arguments to use in persuading reluctant public officials to embrace pro-gay policies. A.S.L. * * * BNA's Daily Labor Report No. 11, January 18, included a report titled "Domestic Partner Programs Praised for Business Value, Yet Few Exist." Symposia: Women and the Courts, 2 Southern Cal. Rev. of L. & Women's Studies No. 2 (Spring 1993). AIDS & RELATED LEGAL ISSUES: Hulse, James W., Edward M. Basile and Dvorah A. Richman, How Broad is the FDA's Authority Over Research and Investigational IVDs?, 48 Food & Drug L.J. 285 (1993). McLaughlin, Elizabeth Beard, A "Society Apart?" The Military's Response to the Threat of AIDS, Army Lawyer, Dept. of the Army Pamphlet 27-50-251, Oct. 1993, p. 3. Pincus, Laura, The Americans With Disabilities Act: Employers' New Responsibilities to HIV-Positive Employees, 21 Hofstra L. Rev. 561 (Spring 1993). Podraza, Ronald, The FDA's Response to AIDS: Paradigm Shift in New Drug Policy?, 48 Food & Drug L.J. 351 (1993). Vilensky, Robert, New York Law on Confidentiality of Medical Records -- Part I, 66 N.Y. State Bar J. No. 1, 38 (Jan. 1994) (does not consider AIDS issues directly). Warner, Daniel M., Caveat Spiritus: A Jurisprudential Reflection Upon the Law of Haunted Houses and Ghosts, 28 Valparaiso U. L. Rev. 207 (Fall 1993) (discusses statutes dealing with issues of disclosure by real estate brokers that prior resident died from AIDS). Student Notes & Comments: Butler, Kathlynn L., Securing Employee Health Benefits Through ERISA and the ADA, 42 Emory L.J. 1197 (Fall 1993) (calls for amendments to overrule McGann case). Fuller, Michael R., Just Whose Life Is It?: Establishing a Constitutional Right for Physician-Assisted Euthanasia, 23 Southwestern U. L. Rev. 103 (1993). Ketchum, Michelle Morgan, Academic Decision-Making: Law Schools' Discretion Under the Americans With Disabilities Act, 62 UMKC L. Rev. 209 (Fall 1993). Shaw, Pamela McKay, "Implied Consent" Statutes for HIV Testing by an Individual's Physician -- Responsible Legislation Advancing HIV Solely as a Medical Problem, 1 San Diego Justice J. 425 (Summer 1993). Zakarin, Harris J., Scared to Death: A Cause of Action for AIDS Phobia, 10 Touro L. Rev. 263 (Fall 1993). Book Reviews: Davis, Jennifer B., International Law & AIDS: International Response, Current Issues, and Future Directions, 7 Emory Int'l L. Rev. 709 (Fall 1993). Specially Noted: On Jan. 7, the New York Law Journal published a lengthy article about the legal services program at Gay Men's Health Crisis in New York City. The article, by the Journal's regular pro bono columnist, William J. Dean, provides detailed information about the scope of services and volunteer opportunities available with GMHC. New York Law Journal is available on Westlaw. 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 and Gay Law Association of Greater New York. Correspondence pertinent to issues covered in Law Notes is welcome and will be published subject to editing.