LESBIAN/GAY LAW NOTES
April 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 

Contributing Editor: Colin Crawford, Instructor, Brooklyn Law
School
Contributing Writers: Paula L. Ettelbrick, Public Policy Director,
National Center for Lesbian Rights and Adjunct Professor, NY Law
School
Kevin Isom, Esq., Atlanta
Steven Kolodny, Esq., New York City
Kenneth Rutman, Adjunct Professor, New York Law School
William M. Millard, Esq., New York City
Todd V. Lamb, Student, NY Law School
Robert Bourguignon, Mary Ann LeFort, Angela Thompson, Students,
Brooklyn Law School
Dirk Williams, Northeastern Law School, Boston

LOUISIANA SUPREME COURT: PLAINTIFF LACKS STANDING IN SODOMY
CHALLENGE, BUT SOLICITATION FOR PRIVATE GAY SEX IS LAWFUL

The Louisiana Supreme Court ruled March 3 in State v. Baxley, 1994
WL 62775, that defendant-appellant Johnny L. Baxley lacked standing
to challenge the constitutionality of LSA-R.S. 14:89(A)(1) of the
state's "crime against nature" statute.  Reversing a trial court
ruling against the statute, the court remanded for trial under LSA-
R.S. 14:89(A)(2).  The court held, in effect, that public
solicitation to engage in private, consensual adult "sodomy" is not
an offense under the "crime against nature" statute if the
solicitation is non-commercial.

Baxley was charged with a violation of sec. 14:89 when he allegedly
approached an undercover police officer in the New Orleans French
Quarter and offered to pay the officer $20 to let Baxley "perform
fellatio on him."  Baxley denies offering to pay, while admitting
solicitation to engage in oral sex.  Subsection (A)(1) is the basic
"crime against nature" statute, prohibiting "unnatural carnal
copulation" without regard to such issues as consent, place, gender
or age of participants.  Subsection (A)(2) prohibits "solicitation
by a human being of another with the intent to engage in any
unnatural carnal copulation for compensation."  The trial judge
found that the constitutionality of (A)(1) was necessarily
implicated in a prosecution for violation of (A)(2), and held that
(A)(1) violated the Louisiana constitution's right of privacy.  

The Supreme Court, in a brief opinion by Justice Jack Watson,
disagreed, finding that regardless whether the conduct described in
(A)(1) was constitutionally protected, the state could prohibit
public solicitation to engage in "unnatural carnal copulation" for
money, and thus Baxley's challenge to the constitutionality of
(A)(1), given the procedural posture of the case, was "premature." 
As to Baxley's argument that even if his defense is believed, he
might still be prosecuted for attempted "unnatural carnal
copulation" under (A)(1), the court disagreed, holding that the
crime of "attempt" could not be used to punish a solicitation to
engage in consensual sexual activity in private.  Wrote Watson,
"Mere discussion or solicitation without a financial aspect cannot
constitute an attempt to engage in conduct prohibited by LSA-R.S.
14:89(A)(1). . .  Solicitation alone does not constitute an attempt
to commit a crime. . . Solicitation is preparation rather than
perpetration.  To call solicitation an attempt is to delete the
overt act element necessary for an attempt."  Thus, since Baxley
was never charged with a violation of (A)(1), he had standing only
to challenge (A)(2).  The court's opinion gives no hint as to its
views regarding the constitutionality of (A)(1).

Concurring, Justice Revius Ortique, while agreeing with the court
on the standing point, made clear his view that the "unnatural
carnal copulation" phrasing is "obsolete," and that in revising it
the legislature should act to shield private, consensual adult sex
from penalization.  "Revamping of this antiquated statute is long
overdue.  Morality statutes should reflect the moral standards of
the era and not those of the turn of the previous century.  While
the state has a legitimate interest in proscribing bestiality and
even the public solicitation of oral sex for compensation, in my
view, it does not have a legitimate public policy interest in
regulating the non-commercial, consensual private acts of oral sex
between consenting adult human beings."

Chief Justice Pascal Calogero's separate opinion both concurred and
dissented.  He agreed that (A)(2) would be constitutional on its
own, but disagreed that the constitutionality of (A)(1) is not
implicated in Baxley's case, since Baxley "is at risk of being
found guilty of an attempt to engage in the unnatural carnal
copulation prohibited by subpart A(1), in my view."  According to
Calogero, the court should have held that (A)(1) "invades the area
of protected privacy recognized in article I, section 5 of the
Louisiana constitution."  Thus, it would be up to the state to
"demonstrate a compelling interest in order to justify
criminalizing such personal choices, and no such compelling
interests have been urged, much less shown, by the state in this
case."  Calogero would have affirmed the trial court's decision.

This decision stands the normal course of homosexual law reform on
its head.  Usually, the first step is to get the sodomy law
repealed, and then to get the public solicitation law repealed or
invalidated.  (The Model Penal Code, for example, recommended
decriminalizing consensual sodomy but retaining a ban on public
solicitation for "deviate sexual intercourse.")  In this decision,
according to Baxley's attorney, John Rawls, the court has
effectively decriminalized public solicitation to engage in deviate
sexual intercourse, while leaving intact, at least for now, the
underlying offense of "unnatural carnal copulation."  Rawls
indicated that he would petition the court for reconsideration, but
it appears this court is not disposed to rule on the
constitutionality of the sodomy law.  A.S.L.

LESBIAN/GAY LEGAL NEWS 

Federal Judge Suggests "Don't Ask, Don't Tell" May Be A "Hoax"

Congress enacted 10 U.S.C. sec. 654, a provision codifying Sen. Sam
Nunn's version of the "don't ask, don't tell" policy on military
service by lesbians and gay men.  The law requires the Department
of Defense (DoD) to issue regulations within 90 days of its Nov.
30.  The regs were announced by DoD General Counsel Jamie Gorelick
effective Feb. 28.  On March 7, attorneys for the ACLU Lesbian and
Gay Rights Project and Lambda Legal Defense filed suit in the U.S.
District Court, Eastern District of New York (Brooklyn), on behalf
of one anonymous and five named service members, challenging the
policy and seeking injunctive relief against its application.  Able
v. United States.  The case was assigned to District Judge Eugene
H. Nickerson, who declined a request for a temporary restraining
order after the Defense Department agreed not to continue discharge
proceedings against any of the named plaintiffs.  Nickerson held a
hearing on the plaintiff's motion for a preliminary injunction on
March 18.

Both sec. 654 and the implementing DoD Directive are full of
internal contradictions that played out dramatically when Justice
Department lawyer Richard Lepley appeared before Judge Nickerson in
opposition to the motion.  The plaintiffs were represented by
Michael Lacovara, one of a team of volunteer attorneys at the New
York firm of Sullivan & Cromwell handling the case as cooperating
attorneys for the ACLU and Lambda.

The statute and regulations hold, in effect, that lesbians and gay
men can serve in the military as long as they don't say or do
anything that might bring to the attention of their commanders (or
any of their peers who might pass the information along) the fact
that they are gay.  In line with this policy, no inquiry about
sexual orientation is made during the enlistment process, and
commanders are not supposed to question subordinates about their
sexual orientation unless the subordinate does something that leads
to the need to investigate.  Once somebody's sexual orientation
becomes known, either through their statements or conduct, a
presumption arises that they have a "propensity" to engage in
conduct forbidden either under the Uniform Code of Military Justice
(anal or oral sex) or under the statute ("homosexual acts"). sec.
654(f)(3) defines "homosexual act" to mean: "(A) any bodily
contact, actively undertaken or passively permitted, between
members of the same sex for the purpose of satisfying sexual
desires; and (B) any bodily contact which a reasonable person would
understand to demonstrate a propensity or intent to engage in an
act described in subparagraph (A)."  The presumption is rebuttable,
the burden falling on the service member to rebut.

The ACLU/Lambda complaint advances four theories for finding the
policy unconstitutional: (1) 5th Amendment equal protection,
claiming the statute and regs "intentionally discriminate against
gay and lesbian service members, including plaintiffs, and subject
them to different and punitive treatment"; (2) 1st Amendment free
speech and expression, on the ground that the policy imposes
"impermissible content-based and viewpoint-based burdens" on speech
and expression of lesbian and gay service members, as well as
burdening the right of all service members "to receive the
protected speech that the Act and the DoD Regulations impermissibly
prohibit, chill and burden"; (3) 1st and 5th Amendment expressive
and intimate association,; and (4) 1st and 5th Amendment vagueness
and overbreadth, claiming that the statute and regs are
"unintelligible, inconsistent and overbroad, and fail to give
plaintiffs (and other lesbian and gay service members) adequate
notice of what speech, conduct or behavior is proscribed and/or can
form the basis for investigation and discharge."

A focus of the March 18 hearing was on how gay service members
could prove that they do not have a "propensity" to commit
homosexual acts.  As the explanations of government attorney Lepley
emerged, it seemed that somebody who said they were gay could only
be retained if they were able to prove that they had misspoken or
misunderstood the definition of "homosexual."  Since the statute
defines a homosexual as somebody "who engages in, attempts to
engage in, has a propensity to engage in, or intends to engage in
homosexual acts", sec. 654(f)(1), in order to rebut the
presumption, one must prove that one is not a statutory
"homosexual."  

When Nickerson asked Lepley "How do you find propensity?", Lepley
defined propensity as "likelihood" that the person would commit
homosexual acts.  "But you say the likelihood comes from saying he
or she is gay?" asked Nickerson.  "What is a person supposed to say
or do?"  "They're going to have to show that they don't have the
propensity," said Lepley.  "But how do they do that?" said
Nickerson, who characterized Lepley's responses as "circular."  "I
looked up `propensity' in the dictionary," said Nickerson. 
"Webster's defines it as `a natural inclination, innate or inherent
tendency.  I suppose some people are born with it.  Then how are
you going to prove you don't have a propensity if you're born with
it?  It seems to me a bit of a hoax.  I don't know how they are
going to prove they don't have a propensity if they admit that they
are homosexual.  I mean it amounts to no difference (from) the old
policy."  Voila!  "None of it shows how the plaintiff can prove an
impossible and amorphous negative," commented Nickerson.  He
reserved decision at the close of the hearing.

Dirk Selland, whose Naval discharge under policies in effect in
Jan. 1993 was blocked in Selland v. Aspin, 832 F.Supp. 12 (D.D.C.
1993), withdrew his lawsuit by agreement with the Justice
Department on March 9.  Per the agreement, the Navy will not
continue discharge proceedings initiated last January.  Instead, it
will institute new proceedings under the "don't ask, don't tell"
regulations.  Selland announced that if the Navy tries to dismiss
him, he will file suit in federal court. 

Some things never change.  The Defense Department is still trying
to recoup scholarships and bonuses from gays who are kicked out and
thus cannot serve their full enlistments.  The Washington Post
reported the case of Eric Fenner, who graduated from the Navy's
nuclear power training program but was dismissed when he later
"came out;" the Navy wants part of his graduation bonus returned. 
The Pentagon is also pursuing Michelle Keenan, who won an Army ROTC
scholarship but came out during law school and was discharged.  The
Army wants her entire $24,000 scholarship back. A.S.L.

Immigration Service Grants Asylum to Gay Mexican

The U.S. Immigration & Naturalization Service (INS) announced a
grant of asylum to "Jose Garcia," using a pseudonym to protect his
privacy, who presented evidence that he had been harassed, beaten
and raped by Mexican police solely because he is gay.  The INS held
that he qualified as a person who can prove "a well-founded fear of
persecution based on race, religion, nationality, political opinion
or membership in a particular social group."  Following the lead of
an Immigration judge who ruled last year in the case of a gay
Brazilian that gays should be recognized as a "social group" under
the regulation, the INS has concluded that its prior position
opposing grants of asylum to gays is no longer tenable.  The "Jose
Garcia" application is reported to be the first to be granted by
INS to a gay person asserting anti-gay bias as the basis for the
application. 

Ruling per curiam, the U.S. 9th Circuit Court of Appeals held in
Kahn v. INS, 1994 WL 94159 (March 25), that the question whether a
resident alien has sufficient family ties in the U.S. to justify a
waiver of deportation under sec. 212(c) of the Act (8 U.S.C. sec.
1182(c)) is a matter of federal law; thus, whether the alien's
relationship would be recognized under state law is not
controlling.  Ruta Kahn was found by an Immigration Judge to have
family ties with an American man with whom she lives in California,
and granted the waiver.  The Board of Immigration Appeals (BIA)
reversed, noting that California does not recognize common law
marriage.  Holding that the Board "erred as a matter of law in
adopting state law as the conclusive measure of family ties in the
United States for purposes of sec. 212(c) relief," the court said
that the INA was intended to "implement a uniform federal policy"
that should not vary depending on differences in state law, and the
determination of "family ties" thus should not depend on whether an
alien resided in a state that recognized common law marriage. 
Although the issue of family ties was not the only one weighed by
the Board in determining whether to waive deportation, it was
"clearly a significant one," so the matter was remanded for
reconsideration.  

Circuit Judge Alex Kosinski dissented in a lengthy, argumentative
opinion, pointing to numerous instances where federal courts use
state law principles to make factual determinations necessary to
enforce federal statutes, and arguing that marital status, as
defined by state law, is frequently significant for purposes of
administering federal statutes, so the BIA's reliance on it in this
case was not irrational.  He was critical of the court's
willingness to require INS to develop a federal common law marriage
standard: "Aside from its uncertainty, this rule is no fairer than
that of the INS.  After all, once we cast aside the requirement
that the parties be married, many couples can plausibly claim
they're as good as married, even though they could not be married
under the law of any American jurisdiction.  What federal interest
is served by giving Kahn and her boyfriend favored treatment while
denying it to others who -- though they cannot qualify for common
law marriage -- have a long-term physical, emotional and financial
relationship?  Isn't the case of gay and lesbian couples -- many of
whom have made long-term commitments and are raising children -- a
far more compelling one?  Kahn and her boyfriend, after all, have
the option of getting married. . .  If, as the majority holds,
immigration law must remain unfettered by state law definitions,
how can we adopt a rule that's itself tethered to the law of states
that recognize common law marriage and so exclude relationships
that may be every bit as stable and enduring as common law
marriages?"  An extraordinary statement from the conservative (and
perceptive) Kosinski.  Might the court's position imply that INS
may interpret "family ties" broadly to embrace lesbian and gay
couples (as some other countries now do)?  Conversely, is the
court's holding bad news for those hoping that the INS will
automatically recognize same-sex marriages under sec. 212 if
Hawaii, the District of Columbia or some other U.S. jurisdiction
eventually allows them?  A.S.L.

Minnesota Appeals Court Recognizes Anti-Gay Hostile Environment
Theory in Unemployment Comp Case

In Hanke v. Safari Hair Adventure, 1994 WL 57956 (Minn. App., March
1), the Minnesota Court of Appeals ruled that a gay employee who
endured harassment due to his sexual orientation and who received
no reasonable expectation that the employer would prevent the
harassment had good cause to quit his job.  As such, he may not be
disqualified from receiving unemployment compensation benefits.

Raymond Hanke was a hair stylist for Safari Hair Adventure, and is
an openly gay man.  A fellow employee, Lisa Weir, repeatedly told
him that she would "get [him] married to a girl if she had anything
to do with it," and once told him that she did not want "a bunch of
fags in this salon."  At these times, Hanke did not complain to the
owner because of his belief that the owner, Vernon Cole, was
homophobic.  Subsequently, employees were asked to make lists of
groups that might assist the salon in expanding business.  Hanke
wanted to place his name in the Equal Times directory, which lists
lesbian and gay services, and received approval from the person who
was the acting manager when Cole was away.  When Cole found out, he
told Hanke that he did not want Safari listed.  During the
conversation, Hanke told him of Weir's former comments.  Cole
responded that he did not believe Weir was capable of making such
comments, and the two of them should simply resolve their
differences, since he could not "control the opinions of what other
people feel or think."  The conversation ended with Hanke quitting.

The Department of Jobs and Training referee held that the evidence
did not amount to harassment and that Hanke had not provided the
employer with the opportunity to resolve his complaints.  Thus, he
did not have good cause to quit.  On appeal, the Commissioner's
representative found that Weir's comments were homophobic, but that
Hanke failed to meaningfully communicate the incident to his
employer before quitting.  The Court of Appeals overturned this
ruling on surprising grounds, given the unfortunate history of
lesbian/gay harassment cases in other courts.  Acknowledging that
it was a case of first impression, the court likened the case to
hostile environment sexual harassment and concluded that anti-
gay/lesbian harassment that creates a hostile work environment
which the employer takes no action to remedy may provide an
employee with good cause to quit for purposes of unemployment
benefits. (By contrast, courts have adamantly distinguished sexual
orientation harassment from sexual harassment, even in some
particularly egregious cases. See Dillon v. Frank, 58 FEP Cases
(BNA) 144 (6th Cir. 1992).  Since sexual orientation discrimination
is not covered by federal and most state laws, plaintiffs have been
without legal remedy.)  Because the Minnesota lesbian/gay rights
law was enacted subsequent to the events of the case, the new law
had no direct bearing, but for the court's footnote acknowledging
the law as evidence of the "legislative concern with the
vulnerabilities and rights of gays and lesbians."  The court ruled
that the record demonstrates a hostile work environment.  In
addition, while it was Hanke's burden to complain to his employer,
which he did, it was the employer's responsibility to respond in a
manner that would give Hanke a reasonable expectation that Safari
would take action to prevent future harassment.  The court ruled
that the owner's response did not sufficiently provide Hanke with
any reasonable expectation of assistance.  While the decision is
significant in its recognition of lesbian and gay workplace
harassment, it is equally significant in its clear message to
employers that they must take timely and affirmative steps in
addressing all workplace harassment.  P.L.E.

Florida Supreme Court Dumps Anti-Gay Ballot Measure; Other Ballot
Measure News

In In re Advisory Opinion to the Attorney General -- Restricts Laws
Related to Discrimination, 1994 WL 60863 (March 3), the Florida
Supreme Court considered the formal acceptability of a proposed
initiative amendment to the state constitution designed to limit
the ability of the state and its subdivisions to enact laws
regarding protection of civil rights.  The proposed amendment
failed on two counts: it violated Florida's single subject rule as
to constitutional amendments, and the proposed ballot summary was
misleading.

The initiative sought to amend art. I, sec. 10 of the Florida
Constitution, which presently bars bills of attainder, ex post
facto laws, and laws impairing the right of contract.  The proposed
new section (b) had two salient provisions.  The first stated that
the state and any of its subdivisions could not adopt any law
regarding discrimination which "creates, establishes or recognizes
any right, privilege or protection based on any characteristic,
trait, status, or condition other than race, color, religion, sex,
national origin, age, handicap, ethnic background, marital status
or familial background." ("Sex," "marital status," and "familial
status" are all defined in this section; "marital status" would
include only "lawful marriage to a person of the opposite sex,
separated, divorced, widowed or single.")  The second salient
section provided that the proposed amendment would repeal all
previously enacted laws that are inconsistent with the amendment.

While the Florida Constitution provides for amendment by popular
initiative, there is a single subject limitation that the state
supreme court rigorously enforces.  Although the Attorney General
concluded that the proposal satisfied the single subject rule "on
its face," the court "look[ed] beyond the surface" and found that
the single subject rule had been violated, as the voters were being
asked to encroach on constitutionally protected home rule powers,
rulemaking authority of executive agencies and the judiciary, the
"basic rights of all natural persons" (Fla. Const., art. I, sec. 2)
and the right of employees to bargain collectively (Fla. Const.,
art I, sec. 6).  The proposed amendment also ran afoul of the
single subject rule because it listed ten separate classifications
of characteristics that could be the subject of civil rights
protection.  The court held that this was asking the voters to
answer ten separate questions at one time.  A voter might approve
of some classifications but not others, but could only vote yes or
no on the entire list.

In addition, the proposed ballot summary was legally insufficient. 
The title and summary read as follows: "LAWS RELATED TO
DISCRINATION ARE RESTRICTED TO CERTAIN CLASSIFICATIONS.  Restricts
laws related to discrimination to classifications based upon race,
color, religion, sex, national origin, age, handicap, ethnic
background, marital status or familial status.  Repeals all laws
inconsistent with this amendment."  The court ruled that this could
mislead the voters into believing that the proposal would only
restrict the effect of existing laws, when, in fact, it would also
sharply limit the powers of governmental entities to enact
legislation in the future, if a group's characteristics do not
appear in the summary.

This decision is apparently the first by a state supreme court to
consider a new tactic of the religious right to limit the legal
protection afforded gays and lesbians.  While proposed amendments
in states such as Colorado and Oregon attempted explicitly to bar
the state from enacting any protection on behalf of gays, the
Florida "stealth" initiative attempted to achieve the same result
without reference to homosexuality.  Similar wording is being used
by anti-gay forces in some other states.  Although the court
allowed some time during oral argument devoted to the substantive
unconstitutionality of the proposed amendment, the opinion
studiously avoided any pronouncement on that subject.  S.K.

Voters in Albany, Junction City, Marion County, and Turner (all in
Oregon) approved ballot measures March 22 that ban their local
governments from adopting or enforcing any law or policy
prohibiting discrimination against homosexuals.  The votes were
part of a continuing strategy by the Oregon Citizens Alliance,
which lost a vote on a statewide proposal in 1992, to secure
enactment of local bans in jurisdictions that had supported the
1992 measure.  With the March 22 vote, a total of twenty localities
have fallen in line with the OCA's strategy.  However, a state law
passed last summer renders these local ordinances unenforceable. 

A coalition of civil rights groups and individuals filed suit in
the Washington (state) Supreme Court on March 23, trying to block
two ballot measures that are now in the petitioning stage.  Among
the plaintiffs are the ACLU, Washington Association of Churches,
Northwest Women's Law Center, the Privacy Fund, Hands-Off
Washington Campaign, and openly gay state Representative Cal
Anderson of Seattle, according to the Seattle Post-Intelligencer. 
The suit is a long-shot, since the court has previously held that
it will not consider challenges to the constitutionality of a
ballot measure until after its approval by voters.  There are
hopes, however, that the measures can be stopped for failures to
conform with formal or procedural requirements.  

Josh Thomas, a gay newspaper publisher in Columbus, Ohio, filed
charges with the state's election commission contending that "Equal
Rights, Not Special Rights," a right-wing political group
responsible for the Cincinnati anti-gay ballot measure that passed
in November, engaged in a scheme with "Coloradans for Family
Values" to let Ohioans unlawfully channel their donations to ERNSR
through CFV to avoid public name reporting requirements.  According
to reports filed after the election, ERNSR received 80% of its
funding from CFV, reported The Advocate.  A.S.L.

California Appeals Courts Split: Are Boy Scouts a "Business
Establishment" Under Unruh Act?

In Curran v. Mount Diablo Council, Boy Scouts of America, 1994 WL
100816 (March 29), the California Court of Appeal, 2nd District,
ruled that the Boy Scouts are not covered by California's Unruh
Civil Rights Act, which prohibits discrimination by businesses
serving the public, thus rejecting a discrimination claim brought
by Timothy Curran, a gay man who was barred from being a
scoutmaster under the Scouts' anti-gay policies, and directly
conflicting with a Feb. 28 ruling by the 4th District Court of
Appeal in another case involving the Boy Scouts.

Curran, then an Eagle Scout, came out publicly in 1980 by taking a
boyfriend to his high school senior prom and giving an interview to
the Oakland Tribune.  He was subsequently denied the opportunity to
become an adult Scout leader.  Curran filed suit under the Unruh
Act, which has been interpreted as banning sexual orientation
discrimination by businesses.  In 1983, the Court of Appeal
rejected the Boy Scouts' motion for dismissal before trial, 147
Cal.App.3d 712, holding that Curran's complaint stated a cause of
action, and commenting that Curran's expulsion was "both capacious
and offensive to public policy," and remanded for trial.

At trial, Superior Court Judge Sally Disco found that the Boy
Scouts were covered by the Unruh Act, but that it would violate the
Scouts' 1st Amendment rights to expressive association to require
them to accept Curran as an openly-gay leader.  Disco found that a
main function of the Scouts was to instill character traits and
moral values in boys, that rejection of homosexuality was part of
the message the Scouts sought to communicate, and that requiring
them to accept an openly-gay leader would contradict this message.

On appeal, the court, in an opinion by Judge Fred J. Woods, agreed
with Disco as to her ultimate ruling on the free association issue,
but disagreed that the Unruh Act even applied, holding that Disco
mistakenly examined the entire Mount Diablo Council operation
rather than focusing on the individual troop level, at which a
leader interacts with a small group of boys on a close and
continuing basis.  When focused on this level, the court found that
the Boy Scouts, a not-for-profit, voluntary organization, fell
outside the scope of "business establishments" subject to the Act.

These conclusions drew a strongly worded dissent from Justice
Robert O. Staniforth, who argued that the application of the
statute to the Scouts was governed by the "law of the case"
doctrine, since the court's earlier decision held, as a matter of
law, that the Scouts were a "business association," and Judge Disco
had so found on remand.  (Woods argued that the court's earlier
decision was merely a ruling on the pleadings, subject to ultimate
determination after a trial of facts relevant to the issue of
"business establishment" status.)  More significantly, Staniforth
argued that the majority (and Judge Disco) had misconstrued U.S.
Supreme Court precedents relating to expressive association.  He
insisted that the evidence relied upon by the majority to find that
opposition to homosexuality was a basic tenet of Scouting was
unpersuasive, and that the record did not support the conclusion
that accepting an openly-gay leader would substantially infringe
the Boy Scouts' expressive association rights.

In Randall v. Orange County Council, Boy Scouts of America, 1994 WL
61716 (Feb. 28), the 4th District Court of Appeal affirmed a trial
court ruling that exclusion of twin brothers from a Cub Scout den
because they were atheists who refused to take the God-referring
Scout oath violates the Unruh Act.  The court articulated what it
considered to be settled California law: that the Scouts are a
business establishment subject to regulation under the Act, relying
on the 2nd District's earlier decision in Curran!  The court
concluded that "businesses entertaining religious preferences may
not discriminate on that basis.  The Council could have no
compelling justification for discriminating against children
because of their current notions concerning the subject of God." 
Dissenting at length, Presiding Justice Sills sarcastically
asserted: "To read the majority opinion, one would think we are
writing about a pizza parlor where the proprietor requires prayers
before serving a medium pepperoni with anchovies."  

The split between the 4th and 2nd Districts might persuade the
California Supreme Court that this is an issue to take up for full
argument and consideration on the merits, something it has not done
in a gay-related case for quite some time.  The ACLU of Southern
California, with staff attorney Jon Davidson in the lead,
participated in both cases for plaintiffs, and plans to appeal the
Curran ruling to the state supreme court. A.S.L.

Courts Split on Lesbian Co-Parent Adoptions; Other Adoption News

N.Y.'s Appellate Division will soon have the opportunity to
determine whether state adoption law may be interpreted to allow
second-parent adoptions for lesbian parents.  In Matter of Dana
(G.M.), NYLJ, 1/26/94, 20 Fam. L. Rep. 1189 (Fam. Ct., Putnam Co.),
the court denied the adoption petition of a non-biological lesbian
mother on the ground that she lacked standing to bring the
proceeding.  Taking a strict approach to N.Y.'s adoption law, Judge
John W. Sweeny, Jr., ruled that the petitioner did not fall within
any of the statutory classifications of who may adopt.  Overlooking
that the law does explicitly allow unmarried individual adults to
adopt, the judge seemed to focus only on the provisions for married
couples and disagreed with the ground-breaking analysis in Matter
of Evan, 583 N.Y.S.2d 997 (Surrogate Ct., N.Y. County 1992), N.Y.'s
first second-parent adoption decision.  The court seemed determined
to send the case to the appellate courts.  If appealed, it would be
heard by the Appellate Division, 2nd Department, probably not the
best department for such an appeal.

By contrast, Family Court Judge Anthony J. Sciolino from Rochester,
N.Y., took a broad approach to the adoption law and granted two
separate petitions for second-parent adoptions presented by lesbian
non-biological mothers.  In Matter of Caitlin and Emily, NYLJ,
1/25/94, 20 Fam. L. Rep. 1184 (Fam. Ct., Monroe Co.), the court
determined that because the mothers are unmarried persons, they had
legal standing to petition for adoption of their partners'
children.  Stating that nothing in the law requires that an
adoptive parent be of any particular gender, and that sexual
orientation discrimination is prohibited by regulations governing
adoptions in N.Y., the court rejected a strict interpretation of
the law requiring the termination of the biological mother's
rights.  Citing Matter of Evan and the Vermont Supreme Court's
second-parent adoption case of 1993, Sciolino stated that the cases
were analogous to stepparent adoptions, and therefore, should be
treated the same way so long as they served the child's best
interests.  In each case, the couples had been together for many
years and had conceived through donor insemination.  Each couple
had two children and, in each case, one of the members of the
couple was the biological mother of both children.  For one of the
couples, the donor for both children was unknown.  For the other
couple, one child was conceived with an unknown donor and the
younger child was conceived with a known donor.  

Aside from the positive ruling, this decision is significant in two
other respects.  The court gave explicit credence to the fact that
the "biological father's rights were waived pursuant to written
agreements executed at the time of the biological mothers'
artificial insemination."  Second, aside from pages of wonderful
analysis and language, the court also addressed the typical
objections raised about second-parent adoptions, or any other same-
sex parenting cases, for that matter.  In the first second-parent
adoption decision that this author is aware of, the court relied
extensively on many studies of lesbian parents to reject the usual
myths about lesbian and gay parents - the "bad role model,"
"children will be gay," "children's personal development will be
stunted," "children will be stigmatized" myths.  The court
concluded by stating that it "is less concerned for the welfare of
these adoptive children than for many of the children of
heterosexual parents who find themselves before the Court." P.L.E.

Cook County, Illinois, Judge Stephen Yates, reversing his own
decision of last year, authorized consideration of a lesbian co-
parent joint adoption petition for a child borne by one of the
adoptive mothers through donor insemination.  In re The Adoption of
Megan Doe, 90 CoA 1202.  The National Law Journal and Chicago
Tribune both said this was probably the first decision in Illinois
to recognize the right of an unmarried couple to adopt a child
jointly.  Still to come: a hearing on parental fitness and best
interest of the child. The anonymous lesbian co-parents are
represented by Tim Miller, of Novak and Macey, and the ACLU's
Lesbian/Gay Rights Project. A.S.L.

The N.Y. Appellate Division, 1st Department, unanimously affirmed
per curiam a family court decision granting an adoption petition of
a black infant by a lesbian foster mother, over the protest of the
infant's black grandmother.  In re Commitment of Jessica N. and
Eula N., 1994 WL 90041 (March 22).  In affirming the order of
Family Court Judge Leah Marks, reported at 601 N.Y.S.2d 215, the
court noted that the child was born with birth defects and positive
toxicology with cocaine and had been receiving special care for
four months since her birth.  A.S.L.

Mass High Court Says Gay Irish Can March, But Vets Cancel Parade

There was no official St. Patrick's Day parade in Boston this year. 
It was the first time since 1901 Boston did not have the parade.  
The Allied War Veterans Council of South Boston opted to cancel
rather than comply with an injunction requiring that the Irish-
American Gay, Lesbian and Bisexual Group of Boston be allowed to
march.  Irish-American Gay, Lesbian and Bisexual Group of Boston v.
City of Boston reported in 1994 Law Notes at 4.  The decision to
cancel came hours after the March 11th ruling of the Supreme
Judicial Court of Massachusetts affirming issuance of the
injunction.  The Veteran's Council made an emergency appeal to U.S.
Supreme Court Justice David Souter for a stay of the injunction
until after this year's parade, but Souter said no.  A written
opinion from the Massachusetts court, when available, will be
reported in a subsequent issue of the Law Notes.  In an attempt to
start a new tradition, Mayor Thomas M. Menino sponsored a `Party at
the Plaza' in front of City Hall on March 17 that was open to
everyone.  Several hundred people attended.  In contrast, Mayor
Rudolph Giuliani marched in the New York parade (which excluded the
Irish Lesbian and Gay Association) and commented that "homosexuals
have their own parade in June celebrating all that they have
accomplished and all that they will accomplish."  The City of
Boston is looking for a new sponsor to take over the parade next
year.  Perhaps the Irish-American Gay, Lesbian and Bisexual Group
of Boston should sponsor the parade and invite our new friend,
David Souter, to march.  Gay groups marched in San Francisco's St.
Patrick's Day Parade for the first time this year, inspired by the
controversies in New York and Boston.  T.V.L. * * *  Organizations
of openly gay, lesbian and bisexual Asian-Americans and Pacific
Islanders participated for the first time in San Francisco's
Chinese New Year Parade on Feb. 26.  Their Lavender Godzilla was a
bigger hit with spectators than the traditional Golden Dragon,
according to a report in the Sacramento Bee of Feb. 27.  A.S.L.

State University of New York Bars Military Recruiters

The State University of N.Y. (SUNY) announced in a memo to
presidents of its 34 campuses on Feb. 25 that it would not appeal
the ruling in Doe v. Rosa, 606 N.Y.S.2d 522 (N.Y. Sup. Ct., N.Y.
Co. 1993), holding that allowing the military to recruit at SUNY-
Buffalo's law school campus violated Executive Order 28 of Governor
Mario Cuomo prohibiting sexual orientation discrimination by state
agencies.  As a result, military recruiters will be barred from all
SUNY campuses, although the memo said that the decision by the
University would not affect ROTC programs, military scholarships or
research grants.  (Time for another law suit?)

SUNY's decision was surprising, because the governor had earlier
announced his disagreement with the initial administrative ruling
in the case, which was initiated by a lesbian law student's
complaint.  Subsequent to the governor's statement, Commissioner of
Human Rights Margarita Rosa overruled her staff and held that the
executive order was superseded by statute.  The timing of SUNY's
decision was also surprising because N.Y. Education Law sec. 2-a,
upon which SUNY officials originally relied in letting the military
on campus, is the subject of a separate case involving the
Rochester City School District now pending before the N.Y. Court of
Appeals, Lloyd v. Grella, 580 N.Y.S.2d 988 (N.Y. Sup. Ct., 1992),
aff'd, 594 N.Y.S.2d 1007 (N.Y.A.D.), leave to appeal granted, 82
N.Y.2d 657 (1993), in which lower courts unanimously held that
under sec. 2-a military recruiters may not be excluded from campus. 
Several organizations, including the state school boards
association and the Association of American Law Schools, filed
amicus briefs in Lloyd urging the court to reverse and to allow the
Rochester schools to bar military recruiters by application of an
equally-applied non-discrimination policy.  Things should come to
a head in about two months when the Court of Appeals rules.  A.S.L.

Domestic Partnership Referendum in Austin; Other Domestic
Partnership News.

In September, the Austin, Texas, City Council voted 5-2 for a
domestic partnership ordinance, extending spousal benefits to same-
sex and opposite-sex unmarried partners of city employees.  Rev.
Charles Bullock, pastor of Christ Memorial Independent Baptist
Church, formed "Concerned Texans" to seek repeal, claiming that
taxpayers who consider unmarried cohabitation immoral should not be
required to subsidize such households.  On March 10, the Austin
city clerk certified that Bullock's group submitted enough petition
signatures to place repeal on the May 7 ballot.  The proposal would
amend the city charter to define "spouse" in city personnel rules
as the husband or wife of a city employee, and to limit city
employee benefits to an employee's spouse, parents, children,
siblings, grandparents, and the parents and grandparents of an
employee's spouse.  Since the ordinance went into effect, about 100
city employees have registered for benefits, at an estimated total
cost of about $140,000.

City employees in Baltimore, Maryland, were offered domestic
partnership benefit coverage effective Jan. 1, 1994, by vote of the
city's Board of Estimate last year, but on March 21 the City
Council voted 10-6 to table a proposal to set up a domestic
partnership registry.  Proponents hoped that the existence of such
a registry would assist private sector employees in securing such
benefits.  The main visible opposition came from conservative
African-American Baptist church leaders, according to the Baltimore
Morning Sun.

Union-represented employees of Hennepin County, Minnesota, may
obtain domestic partnership coverage included in a collective
bargaining agreement being negotiated in their behalf, according to
the Minneapolis Star Tribune of March 22, which reported that the
county commissioners would probably approve the proposal if it was
presented as part of an overall collective bargaining agreement. 
Domestic partnership benefits for same-sex couples already exist at
the University of Minnesota, the Minneapolis public school system,
the Minnesota Communications Group and the Minneapolis chapter of
the Red Cross, but benefits for Minneapolis municipal employees are
stalled by a citizen-initiated lawsuit challenging the city's
authority to extend such benefits without state law authorization. 
A.S.L.

No Legal Remedy for Priest "Outed" by Prosecutors

The U.S. Court of Appeals for the 5th Circuit ruled March 11 that
Dino Cinel, a Roman Catholic priest whose home-made gay sex video
(in which he was a co-star) was excerpted on "Geraldo," had not
stated valid claims for deprivation of civil rights against
prosecutors who allegedly conspired with others to make the tapes
public.  Cinel v. Connick, 1994 WL 54083.  Cinel's videotape
adventure came to the attention of law enforcement authorities when
another priest accidently discovered the tape in Cinel's room at
the rectory.  Church officials turned the tape over to District
Attorney Harry Connick's office.  The tape featured Cinel engaging
in "homosexual activity" with two younger men, Christopher Fontaine
and Ronald Tichenor.  After verifying that both men were above the
age of consent, Connick decided not to prosecute Cinel (even though
their conduct technically violated Louisiana's crime against nature
statute).  Cinel claimed that an investigator for the DA's office
gave the names and addresses of Fontaine and Tichenor to a private
investigator, who used the information to help some attorneys for
whom he worked solicit them as clients.  Eventually, Fontaine and
Tichenor sued Cinel and the Church, and Fontaine's attorney
subpoenaed the infamous tape from the DA, who turned it over to the
plaintiffs under a "consent judgment" that authorized making
copies.  Cinel alleged that the private investigator then gave
copies of the tape to a local TV station, which broadcast excerpts,
and sold some of the material to Geraldo, who broadcast excerpts on
his syndicated TV show, "Now It Can Be Told."  
Cinel alleged a cause of action under 42 U.S.C. sec. 1983, claiming
that the prosecutors and others conspired to violate his right to
privacy.  Cinel asserted that he had an agreement with the
prosecutors to keep the identities of the young men on the tape
confidential, but the court, in an opinion by Circuit Judge Duhe,
would not recognize such an alleged agreement as establishing a
constitutional right.  The court also refused to find that Connick
or his staff violated Cinel's rights by complying with the
subpoena: "Because the Church had viewed the materials before
giving them to the DA's office, and Fontaine had participated in
making the video, the information disclosed was not private as to
these parties."  Cinel tried to bring the broadcasters into the
case by alleging a "conspiracy" between them and the government
actors, but this was also unavailing; the court found no conspiracy
between the government actors and the private actors to make the
tape public or to broadcast it.  The court also held that the
district court acted within its competence by addressing and
dismissing pendent state law claims.  Particularly as to Cinel's
invasion of privacy claim under state law, the court noted that the
details of Cinel's story were newsworthy, and that the tape
"substantially related to Appellant's story."  "Perhaps the use of
the materials reflected the media's insensitivity, and no doubt
Appellant was embarrassed, but we are not prepared to make
editorial decisions for the media regarding information directly
related to matters of public concern."  This will make steamy
reading in F.3d!  A.S.L.

New York, New Hampshire Rights Laws Advance, Washington Law Dies,
Cleveland Ordinance Passes

 The N.Y. Assembly passed a bill that would ban sexual orientation
discrimination in employment, housing, public accommodations,
education and credit on March 23 by a vote of 88-56.  A similar
bill passed the Assembly by a wider margin last year, but was kept
from the Senate floor by the Majority (Republican) caucus, most of
whose members oppose the bill.  Governor Mario Cuomo attended a
press conference after the bill passed and urged the Senate to
bring it to a vote, chiding legislators who were afraid to go on
record during an election year. * * *  The New Hampshire House
approved a sexual orientation discrimination bill on Feb. 15 by a
226-131 vote, but chances for enactment appear slim because
Governor Steve Merrill has announced opposition. * * * A bill to
ban sexual orientation discrimination in Washington State passed
the State House but Senate leaders decided on March 4 to keep it
off the Senate floor, asserting that it did not have the votes for
passage and they did not want to put supporters of the legislation
unnecessarily on the spot in an election year.  Two initiatives
that would ban gay rights legislation are contending for spots on
the state ballot. The Senate subsequently passed a resolution
condemning anti-gay discrimination. * * * The Maryland House
Judiciary Committee tied 10-10 on a proposed gay rights measure on
March 24, killing it for the third consecutive year. * * * The
Cleveland, Ohio, City Council passed a comprehensive civil rights
ordinance that had been proposed by Mayor Michael R. White on March
14.  It includes sexual orientation among its dozen categories and
was passed with little debate by an overwhelming vote. The
ordinance covers housing, employment and public accommodations,
according to the Cleveland Plain Dealer. 

Alaska Landlord's "Religious" Rental Policy Unlawful

A landlord who refused to rent to unmarried couples violated state
and municipal anti-discrimination laws, the Alaska Supreme Court
held in Swanner v. Anchorage Equal Rights Commission, 1994 WL 41377
(Feb. 11).  Three potential tenants filed separate complaints
against the landlord, who, citing his "Christian religious
beliefs," refused to show them apartments after learning that they
planned to live with members of the opposite sex.  The Equal Rights
Commission ruled for the tenants, based on a state statute that
provides "It is unlawful . . . to refuse to sell, lease, or rent
the real property to a person because of . . . marital status" and
a city ordinance with similar wording.  The landlord claimed the
Commission's ruling interfered with free exercise of religion under
the U.S. and Alaska constitutions.  But the court upheld the
Commission.

On the federal constitutional claim, the court found that because
the laws the landlord broke are neutral and generally applicable,
they need not be justified by a compelling governmental interest,
regardless of whether they burdened his religious practices.  As
for the state claim, the court concluded that because the
government had not only a "derivative interest in ensuring access
to housing for everyone" but also a "transactional interest in
preventing discrimination based on irrelevant characteristics," the
landlord's actions trespassed on the rights of unmarried couples. 
The court pointed out that the landlord voluntarily chose an
activity regulated by anti-discrimination laws: "Swanner has made
no showing of a religious belief which requires that he engage in
the property-rental business."  A dissent argued it was less
important to protect against discrimination based on marital status
than on other characteristics, such as race and sex, and criticized
the court's test that distinguished between derivative and
transactional interests.

The Swanner decision is significant because the principles
involving discrimination against couples based on their marital
status would seem to apply equally to lesbians and gays.  Unlike
several other jurisdictions, Alaska has no law prohibiting sexual
orientation discrimination; however, the court's reasoning may be
persuasive in lesbian or gay cases.  K.R.

Pennsylvania Court Says Rape and Forcible Sodomy Are Legally
Indistinguishable

In Commonwealth v. Lee, 1994 WL 80776 (March 16), a 3-judge panel
of the Pennsylvania Superior Court in Harrisburg devoted attention
to the purported distinction between "rape" and "involuntary
deviate sexual intercourse" (IDSI).  State prisoner Roderick Lee
appealed his sentence for both rape and IDSI arising from his
coercion of a 16-year old fellow inmate to submit to anal and oral
sex with him.  The trial court found him guilty of coercing four
sexual incidents, and finding that each incident consisted of both
rape and IDSI, gave Lee concurrent sentences for both crimes for
each incident.  The appellate panel rejected several substantive
defenses on appeal, including Lee's contention that because the
youngster "submitted" in the absence of actual violence, the
conduct was consensual.  Writing for the unanimous appellate panel,
Judge Olszewski held that "imposing two sentences for one act of
penile penetration is illegal under the double jeopardy clause of
the United States Constitution."  Reviewing the language of the two
statutes, the court concluded that "as between non-married persons,
any act of forcible oral or anal sex is proscribed by both the rape
and IDSI statutes. . . Every time a man has forcible intercourse
with another man (necessarily per anus or per os), he has both
raped and committed involuntary sexual deviate intercourse.  It is
impossible for him to rape another man without committing IDSI, nor
can he commit IDSI without raping him.  The two crimes are
identical."  Although some Pennsylvania courts apparently sought to
preserve a distinction between the two offenses, this court found
that for all practical purposes there were no distinctions when the
offense involved two men; consequently, sentencing twice for one
incident was illegal.  A.S.L.

Litigation Notes - Federal

The Supreme Court announced Feb. 28 it will review the 9th
Circuit's decision in U.S. v. X-Citement Video, Inc., 982 F.2d 1285
(1992).  The circuit court held unconstitutional 18 U.S.C. sec.
2252, which prohibits distribution or receipt of child pornography,
on the ground that the lack of an express scienter requirement in
the statute violates due process.  A.S.L. * * * The full D.C.
Circuit will hear oral argument in Joseph Steffan's challenge to
the military's anti-gay policy on May 11.  In Steffan v. Aspin, 8
F.2d 57, a 3-judge panel ruled Nov. 16 that Steffan's forced
resignation from the Naval Academy after he admitted that he was
gay violated his constitutional right to equal protection, and
ordered that he be awarded his diploma and commissioned as a Naval
officer.  The Clinton Administration decided not to petition for
review of the determination that the regulations under which
Steffan was forced to resign were unconstitutional, but nonetheless
petitioned for en banc review on the issue of remedy, contending
that as a matter of separation of powers the courts lacked
jurisdiction to order the Navy to commission somebody as an
officer.  The D.C. Circuit decided sua sponte to vacate the panel's
decision and rehear the entire appeal on the merits.  Given the
limited scope of its petition, it was surprising that in its brief
filed March 30, the government argued that the old policy was
constitutional.  The name of the case is now Steffan v. Perry,
reflecting the recent change in leadership at the Pentagon.  Marc
Wolinsky, of Wachtell, Lipton, Rosen & Katz, will argue for Steffan
as a cooperating attorney for Lambda Legal Defense Fund.  A.S.L. 

In Jackson v. Brigle, 1994 WL 54816 (9th Cir. Feb. 25), Circuit
Judge Procter Hug instructed the district court to dismiss Lt. Col.
Kenneth Jackson's Bivens claim related to his discharge from the
Air Force.  Jackson, who lived off-base with a male civilian, was
being investigated by local police for child abuse.  The police
notified the Air Force Office of Special Investigations (AFOSI)
that they had obtained a search warrant for Jackson's home, and
asked AFOSI to accompany Jackson to the house while they searched
it.  An Air Force general issued orders complying with this
request.  The decision does not mention the ultimate outcome of the
police investigation of child abuse.  Jackson alleged that the
AFOSI agents detained him and used the police investigation to
procure evidence regarding his sexual orientation which they later
used to discharge him.  The defendants moved for dismissal under
Feres v. United States, 340 U.S. 135, 156 (1950), which creates
immunity against suits by members of the armed services for
injuries arising in the course of activities incident to military
service.  The 9th Circuit reversed the district court's denial of
the dismissal motion.  The key question, the court held, was
whether Jackson's injuries were incident to his military service. 
The court was highly deferential to the military's need to make
command decisions and enforce its own brand of discipline.  The
court also distinguished Jackson's case from the facts at issue in
Lutz v. Secretary of the Air Force, 944 F.2d 1477 (9th Cir. 1991),
where Air Force personnel broke into a retired lesbian officer's
office and found evidence of her sexual orientation that ultimately
ended in her forced resignation.  In Lutz, there had been no
officer ordering the search.  In Jackson, an AFOSI officer had
ordered the agents to accompany Jackson during the search of his
home.  The court also rejected Jackson's constitutional arguments,
affirming case law that Feres immunity does not turn on whether the
regulation or action is unconstitutional. D.W. 

Fred W. Phelps, the fiery Kansas anti-gay minister whose latest
escapade was picketing the funeral of author Randy Shilts, was
successful last summer in getting a federal court to declare
unconstitutionally overbroad a Kansas "criminal defamation" statute
aimed at his anti-gay shenanigans.  He was somewhat less successful
in trying to get the state to pay over $80,000 in attorneys fees. 
In Phelps v. Hamilton, 1994 WL 76609 (D. Kans., Feb. 28), U.S.
District Judge Crow cut down the fee award to under $40,000. 
Although Phelps was the prevailing party in this "civil rights"
action, the court found that his lawyers' billing practices were
inadequately documented to support the amount claimed.  A.S.L. 

U.S. District Judge Saundra Brown Armstrong (N.D.Cal.) gave final
approval March 22 to a settlement in Buttino v. FBI.  In exchange
for dropping his request for reinstatement, Frank Buttino will
receive a cash settlement of about $100,000, $53,000 in legal fees,
and a civil service pension when he reaches age 62 in 2007. 
Prompted by this case, the Justice Department recently announced a
new policy barring anti-gay discrimination.  Judge Brown had denied
the government's attempt to have the case dismissed in 1992, see
801 F.Supp. 298.  A.S.L.

Litigation Notes - State

In Ward v. State, 1994 WL 84173 (Fla. Ct. App., 5th Dist., March
18), the court of appeals reversed the circuit court and reinstated
a decision by the county court to suppress evidence in a public
restroom lewdness case.  Teddy Ward was arrested after Police
Officer Barker observed him masturbating in a closed toilet stall
in a public restroom by peering through a crack between the door
and the wall of the stall.  The court held that Ward had a right to
privacy in the stall, so admission of Barker's testimony would
violate Ward's 4th Amendment rights as the result of an
unreasonable search, but, more importantly, that assuming the stall
was a private place, Ward had committed no crime.  Wrote Judge
Sharp: "We have serious doubts that any `crime' was committed in
this case. . .  The Florida case law dealing with sec. 800.03
requires that the exposure of one's person or the doing of a lewd
act, be in the presence of another person, or in a public place
from which the public is not excluded and could be reasonably
expected to be. . .  It appears from this record that Ward was not
in such a public place, and the only reason Officer Barker saw him
was because Barker peeked (knothole fashion) through the door
crack. . .  And masturbation, by itself, is not a crime in Florida
(nor any other state we are aware of."  Agreeing with the trial
court that "the design of the toilet stalls was sufficient to
provide the occupant, after closing the doors, with a degree of
privacy," the court upheld suppression of Barker's testimony,
reversed the circuit court, and remanded for consistent proceedings
in the trial court.  Dissenting, Judge Peterson found it
unnecessary to reach the constitutional issue, but would have
indicated that Ward "is guilty of no crime now described in the
Florida statutes." A.S.L. 

Law & Society Notes - Federal

After conservative members of Congress said they would not employ
gay staffers, the Human Rights Campaign Fund began surveying
members on the issue.  On Feb. 25, HRCF listed 225 House members
who signed a pledge that they would not discriminate against gays -
- a majority of the House.  HRCF is continuing to survey, including
a parallel survey in the Senate, hoping the survey may produce an
unprecedented number of co-sponsors for a gay rights bill when it
is introduced later in the session. * * * Librarian of Congress
James Billington issued a statement Feb. 28 banning sexual
orientation discrimination by the Library, and has recognized an
LOC group of lesbian/gay employees.  The Library employs about
4,000 people. * * *  Attorney General Janet Reno bought herself a
lawsuit when she ordered Justice Department mediators to Ovett,
Mississippi, mediate a dispute between townspeople and Brenda and
Wanda Henson, lesbians who have established a feminist retreat on
their farm.  John Allen, a Baptist minister, and James Hendry, head
of "Mississippi for Family Values," sued in federal court seeking
a declaration that Reno exceeded her authority because federal
rights laws do not protect gays; they claim Reno infringed state
rights protected by the 9th and 10th Amendments, and seek $50,000
damages for each plaintiff.  Associated Press reported that the
suit followed a letter to Reno from U.S. Rep. Mike Parker (D-Miss),
criticizing her for characterizing the Hensons' opponents as
bigots.  * * *  U.S. Rep. Mel Hancock (R.-Mo.) introduced an
amendment to H.R. 6, the reauthorization bill for the Elementary
and Secondary Education Act, stating that no "local education
agency" that receives federal funds "shall implement or carry out
a program or activity that has either the purpose or effect of
encouraging or supporting homosexuality as a positive lifestyle
alternative."  Hancock's amendment was amended on the floor to
narrowly focus it on the spending of federal money, rather than
restricting any agency that receives federal money, and as amended
was added to the Education bill, which then passed the House. 
During the debate, Rep. Steve Gunderson (Rep.--Wisc.), the subject
of an earlier "outing" by ACT-UP, strongly opposed the Hancock
amendment, evoking a demand by California Rep. Robert Dornan, a
noted homophobe, that Gunderson "come out" once and for all. 
Gunderson, who maintains his sexual orientation is  private and
will not discuss it publicly, was keynote speaker at a Human Rights
Campaign Fund dinner in Baltimore last month, at which time he
urged HRCF supporters to be gentler to closeted public officials
and more understanding of middle America.  Gunderson made personal
references during the speech from which audience members concluded
he was "coming out."  A.S.L.

Law & Society Notes - State and Local

The Kentucky House Constitutional Amendments and Special Elections
Committee voted 7-2 in favor of a proposed state constitutional
amendment that would overrule the Kentucky Supreme Court's decision
in Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992) and revive the
state's sodomy law.  But a secret ballot vote in the House
Democratic caucus on March 23 killed the proposal. * * *
Minneapolis Police Chief John Laux announced he would implement a
recommendation by the Minneapolis Police/Community Task Force on
Gay/Lesbian Issues to establish a special response team of lesbian
and gay police officers to deal with anti-gay crimes, according to
the Minneapolis Star Tribune.  Other recommendations Laux promised
to implement include an express non-discrimination policy, special
training on gay issues for the Department's media specialist, an
AIDS/HIV policy, and recruitment of gay and lesbian officers. * *
* The faculty of N.Y. University Law School narrowly approved a
resolution to lift the school's ban on recruitment by Colorado law
firms, reacting to the December 1993 decision by Colorado District
Judge Jeffrey Bayless in Evans v. Romer, 1993 WL 518586, which
permanently enjoined Amendment 2 from going into effect.  The
Amendment, passed by Colorado voters in 1992, would have barred the
state or its political subdivisions from enacting or enforcing
policies against sexual orientation discrimination.  The state is
appealing the decision to the Colorado Supreme Court. * * * The Art
Libraries Society of North America became the third major
convention group to boycott Cincinnati due to passage of anti-gay
Issue 3 last November, joining groups of historians and librarians.
* * * Texas state school board officials are demanding that
publishers revise science and health textbooks to reflect the
agenda of the religious right wing, but at least one publisher said
no.  Holt, Rinehart & Winston, Inc., announced it would withdraw
its high school health text from the Texas market rather than
censor the book.  Among revisions demanded by Texas officials were
deletion of safer-sex information and addition of a discussion of
the prohibition of sodomy under Texas law -- a law that has been
declared unconstitutional by a Texas appeals court in an opinion
denied review by the state's supreme court: City of Dallas v.
England, 846 S.W.2d 957 (Tex.App. 1993). * * * The Virginia
Development Authority voted March 15 to delay a planned policy
change that would have authorized housing loans to cohabitants who
are unrelated by blood, marriage or adoption.  Governor George
Allen opposes the change because it would allow loans to gay
couples; he says the only exception to the existing "single family"
policy should be for older persons or persons with disabilities who
live together in order to take care of each other, according to the
Virginian-Pilot of Norfolk. * * *  Meeting with representatives of
the lesbian and gay community on March 9, N.Y. Governor Mario Cuomo
announced that he would appoint Virginia Apuzzo as President of the
State Civil Service Commission, a cabinet-level position.  If
confirmed by the State Senate, Apuzzo, former Executive Director of
the National Gay & Lesbian Task Force, will be the first openly-gay
New Yorker to hold a cabinet level position.  * * *  The Berkeley,
California, city council designated openly-gay council member
Jeffrey Leiter to serve as mayor to fill a vacancy created when
Mayor Loni Hancock was appointed to a federal post by President
Clinton. * * * The Ventura, California, city council repealed a 26-
year old local ban on same-sex dancing in public accommodations by
unanimous vote on Feb. 26. * * *  A lesbian couple were arrested
and charged with abusing their 2-1/2 year old daughter in North
Carolina, according to The Washington Blade.  The women claim that
the abuse charges, made by the child's grandmother, are false and
relate to a dispute over custody of the child. * * * Seton Hall
University Law School (a Catholic school) has adopted a revised
equal opportunity policy that forbids sexual orientation
discrimination, but the policy is qualified by noting that all
policies must be consistent with "the teachings of the Catholic
Church," an organization that normally opposes the adoption of gay
rights policies.  A.S.L.

Mass. Bar Group Documents Discrimination

The Massachusetts Lesbian and Gay Bar Association has issued a
report based on a survey of its members, titled The Prevalence of
Sexual Orientation Discrimination in the Legal Profession in
Massachusetts.  Among notable findings were that 3/4 of the
respondents had either encountered anti-gay discrimination
themselves or heard anti-gay remarks by colleagues in the office or
in court.  About 2/3 indicated that being gay or lesbian affected
their decision about where to work or whether to take a job.  The
survey was directed by MLGBA Co-Chair Stewart Landers.  Copies of
the report, which was summarized in the Massachusetts Bar
Association's newsletter, are available from MLGBA, P.O. Box 9072,
Boston MA 02114.  A.S.L.

International Notes

The Constitutional Court of Columbia ruled that military and police
forces must end their ban on employment of gays, according to a
March 13 article in the Dallas Morning News.  The court ruled on an
appeal by Eduardo Cuevas, who was expelled from an Army cavalry
school for "homosexual conduct."  Cuevas did not deny he was gay,
but claimed he had a constitutional right to serve.  Reversing
lower courts, the Constitutional Court ordered reinstatement,
citing constitutional guarantees of "the rights of intimacy and
personal development."  Judge Eduardo Cifuentes, author of the
decision, said: "This started out as an examination of a violation
of the right to be educated, but the court then studied the theme
of homosexuality."  Gays could still be dismissed if their conduct
interferes with military duty, according to the news report.  The
article cited "legal scholars and officials at the U.S. Embassy" as
saying that this decision will make Columbia the first Latin
American country to guarantee the right of gays to serve in the
military.  Of course, the first North American country to do so is
Canada.  As to the U.S., see above!  * * *  The Washington Blade
reported that the Spanish city of Vitoria established a municipal
registry for domestic partnerships, gay and non-gay.  Partnership
certificates will be useful when couples apply for social security
and loans and rent property, and may serve as proof in legal cases
involving pensions and wills, according to a news report by
Reuters, but will not affect taxes. * * * A South African newspaper
reports that gay rights is one of the three "taboo" issues in the
upcoming elections.  The Bill of Rights in the new constitution
includes a provision forbidding sexual orientation discrimination,
but only the tiny Democratic Party (which is running one openly-gay
man on its parliamentary slate) is making a pitch for gay votes. 
Although the African National Congress (ANC) is credited with
suggesting and obtaining inclusion of the discrimination provision,
many ANC leaders are uncomfortable with the gay issue, and the
party is not making any particular pitch for gay votes. * * *
Washington Blade reports that Germany repealed the last remnants of
Paragraph 175 of the Criminal Code, the provision under which gays
were sent to concentration camps.  At the same time, the country
has established a uniform age of consent at 16. * * * According to
the Washington Blade, Ontario's Attorney General Marion Boyd
announced that the Canadian province will adopt a requirement that
all employers provide domestic partnership benefits.  Public
employees are already entitled to such benefits.  A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 

Supreme Court Rejects Major AIDS Discrimination Appeal

The Supreme Court announced Feb. 22 that it denied a petition for
certiorari in Bradley v. University of Texas M.D. Anderson Cancer
Center, 3 F.3d 922 (5th Cir. 1993), cert. denied, 114 S.Ct. 1071. 
In Bradley, the 5th Circuit upheld a hospital's decision to
transfer a surgical assistant to a clerical position after the
assistant revealed in a newspaper article that he was HIV+ and
worked as a surgical assistant at the hospital.  Bradley claimed
his reassignment violated sec. 504 of the Rehabilitation Act and
the 1st Amendment.  The 5th Circuit accepted the hospital's
argument that Bradley was not "otherwise qualified" because, even
though there is no evidence that an HIV+ surgical assistant has
ever transmitted the virus to a patient or co-worker during
surgery, there is a small theoretical possibility that such
transmission might take place.  The court also rejected his 1st
Amendment claim, finding that the hospital would have removed an
HIV+ assistant from the operating room regardless whether he made
public statements about his serostatus.  This case would have been
ideal for the Supreme Court to reject unsubstantiated speculation
as a basis for discrimination against HIV+ health care workers, but
the Justices ducked the opportunity. We suspect the hospital took
action against Bradley not out of any serious fear of transmission,
but rather out of fear that members of the public would refuse to
patronize the hospital because it employed an HIV+ assistant in the
operating room.  Of course, the 5th Circuit's brief, dismissive
discussion of the 1st Amendment claim fails to deal with this
problem.  All in all, a shameful cop-out by the courts in this
case. * * *  The Supreme Court has yet to take an AIDS case, but it
may get another chance in response to a certiorari petition in
People v. Russell, 1994 WL 12502 (Jan. 20), in which the Illinois
Supreme Court sustained the constitutionality of a state law that
makes it a felony for an HIV+ person to engage in "intimate
contact" with another person.  The Illinois court rejected the
argument that the statute was unduly vague, but on Feb. 18 stayed
the ruling to allow for filing of a cert petition.  A.S.L.

Connecticut Court Dissolves Injunction Against AIDS Research Unit

 The city of New London, CT, obtained an ex parte temporary
injunction against the University of Connecticut and two
researchers, prohibiting them from operating Eastern Connecticut
Health Outreach (ECHO) in New London.  ECHO is funded by a $2.8
million grant from the National Institute on Drug Abuse, and is a
project aimed at gathering epidemiological and sociological data
from HIV+ injection drug users in the New London area.  The
University argued that the grant would be jeopardized if the
research study could not continue in New London.  The city obtained
the injunction when Ned Hammond, city Zoning Officer, determined
that the facility violated zoning requirements.  The University
moved to dissolve the injunction on the grounds that, first, since
the State preempted higher education authority, the City could not
show a likelihood of success on the merits, and, second, that the
proposed use was a "service business" permitted under the zoning
regulations (noting that already in the district were a substance
abuse counseling service, a methadone clinic, a women's shelter and
rape-crisis center, an AIDS education service, and a community
justice organization for former offenders).

In City of New London v. University of Connecticut, 1994 WL 65316
(Feb. 24), Judge Teller of the Superior Court quickly dispatched
the University's preemption argument as "doubtful," but as to the
second argument observed that some members of the Zoning Commission
held a preconceived bias against the ECHO project, quoting members
as saying, among other things, "I hate drug users."  The court
found that the city made no showing of any particular harm, but
that "[s]hould the injunction be continued, the potential harm to
the defendants is tremendous. . . The great public importance to be
served by the ECHO project cannot be denied.  The project will
educate participants in measures they could take to reduce their
risk of contracting or spreading the HIV virus [and] . . . would
provide valuable information and insight into the risks the
community faces form the HIV virus."  The court granted the
university's motion and dissolved the injunction.  W.M.M.

Pennsylvania Court Says HIV Makes Prostitution a "Danger to Life
and Limb"

In Commonwealth v. Birdseye, 1994 WL 65083 (Pa. Super., March 4),
the Birdseyes, father and son, were convicted of corrupt
organization, promoting prostitution, selling obscene materials,
interception of wire communications and possession of intercepting
devices, based largely on evidence obtained through wiretapping. 
On appeal of a denial of their motions to modify sentences, a
Pennsylvania Superior Court panel addressed the question whether
prostitution is an offense dangerous to life and limb within the
sweep of federal and state wiretapping statutes, so as to warrant
wiretapping in an investigation of conduct promoting prostitution.

The Birdseyes, owner-managers of several adult bookstores, were
accused of maintaining a corrupt organization by using bookstores
for prostitution and sale of pornography.  Testimony indicated that
two male prostitutes used the bookstores for prostitution and that
video booths had "glory holes."  In 1986, the Superior Court
authorized a wiretap of various phones, and many calls taped by
police were introduced in evidence.  The Birdseyes moved to
suppress this evidence.  The Commonwealth asked trial judge Raymond
A. Novak to take judicial notice of the Surgeon General's Report on
AIDS in support of its argument that prostitution threatened life
and limb, a necessary finding to support the wiretaps.  Novak
declined to do so, but did take notice that at the time of
application the U.S. was experiencing a health crisis brought on by
a sexually transmitted virus that causes AIDS.  Novak concluded
that this was so widely known by the mid-1980s that to ignore it
would be "placing one's head in the sand."

On appeal, the Superior Court said that the spread of AIDS has
caused an enormous crisis, and that Novak had not erred in taking
judicial notice of it.  As a result, the court was unable to
conclude that Novak erred in determining that a prostitution
business was a danger to life and limb, distinguishing People v.
Shapiro, 409 N.E.2d 897 (N.Y. 1980), where the court suppressed
wiretap evidence concerning a single incident of promoting
prostitution as opposed to the Birdseyes' "vast criminal enterprise
promoting anonymous sex for profit."  K.I.

California Court Finds No HIV Discrimination in Firing of Attorney;
Other AIDS Employment News

Ruling March 16, San Diego, California, Superior Court Judge
Vincent DiFiglia ruled in Caprow v. Frank & Freedus, No. 663868,
that a law firm did not discriminate on the basis of HIV status or
sexual orientation in dismissing Martin Caprow, an associate who is
HIV+.  Caprow's discharge came after he filled out a health
questionnaire that was circulated during the firm's search for a
new group insurance plan in February 1992.  Partners in the firm
testified that the decision to discharge Caprow for poor
performance had been made a month earlier, when the firm was not
aware of his HIV status.  Finding this credible, DiFiglia wrote:
These men are not bigots.  They are not homophobic.  Sadly, the
firm was struggling financially and continues to do so.  An
associate had to be laid off; unfortunately, that associate was Mr.
Caprow.  Whether he was the appropriate choice is not for the court
to decide, only that he was not chosen because he is gay or because
he has AIDS.  These aspects of Mr. Caprow's life played no part in
the defendants' decision."  DiFiglia also found that the partners
had suspected Caprow was gay since 1989, but continued to employ
him, gave him raises, and assigned him more responsibility. 
DiFiglia found that the poor economic condition of the legal
profession in San Diego was the main cause of Caprow's discharge,
labelling him a "victim of the economy."  See BNA Daily Labor
Report No. 54, A-3. * * * The EEOC filed its first ADA AIDS
discrimination suit in the Northwestern U.S. EEOC v. ADPS
Enterprises, Inc., CA No. C94-0407C (U.S. Dist. Ct., W.D. Wash.,
March 21).  The suit alleges that ADPS discharged Larry Braden,
characterized as its "highest ranking employee," after learning
that he has AIDS.  The complaint recites repeated unlawfully
inquiries directed at Braden by the company.  See BNA Daily Labor
Report No. 56 (3/24/94), A-13. * * * The EEOC has reached a
settlement agreement with Connecticut Refining Co. (CRC) on charges
that CRC violated the ADA by putting a $10,000 lifetime benefit cap
on AIDS-related health insurance claims by its employees.  The
self-insured employer maintained a $1 million cap for other
illnesses and disabilities.  The EEOC acted on the complaint of
John Collimore, an HIV+ employee.  Under the agreement, CRC will
amend its plan to remove the AIDS cap retroactive to July 26, 1992,
the date ADA became applicable.  Collimore will receive $35,000 in
compensatory damages for emotional distress caused by CRC's
discriminatory practices, and CRC will provide ADA training and an
AIDS awareness program to its employees, although under the
agreement CRC does not admit having violated the ADA.  See Daily
Labor Report (BNA) No. 46 (3/10/94) at A-16. * * * San Mateo
(California) Superior Court Judge Walter H. Herrington, Jr., denied
a motion for summary judgement Feb. 28 by Delta Airlines in
Sullivan v. Delta Airlines, Inc., No. 380580 (see BNA Daily Labor
Report No. 47, 3/11/94).  Joseph Sullivan alleges that Delta
maintained a list of employees suspected or confirmed of having
HIV/AIDS in the San Francisco reservation office, and discharged
him after his name was added to the list, which was forwarded to
the main office in Atlanta.  Sullivan claims violations of
California's Fair Employment and Housing Act and invasion of
privacy, and also asserts a claim under Cal. Labor Code sec. 1025,
requiring employers to accommodate employees' participation in
alcohol rehabilitation programs.  The case was scheduled for a
March 21 trial. * * * The Office of Federal Contract Compliance
Programs, which administers sec. 503 of the Rehabilitation Act of
1973, charged Commonwealth Aluminum with a violation for rejecting
job applicants who had medical conditions revealed by x-ray exams
but suffered no overt physical symptoms.  Complainants to OFCCP
were rejected for congenital spine and back defects, hearing loss,
and an inquinal hernia.  On appeal to the Assistant Secretary of
Labor, John R. Fraser, the position of the Office was sustained,
Fraser holding that a mere elevated risk of injury, without more,
is not sufficient to justify rejecting a worker who is capable of
performing the job.  OFCCP v. Commonwealth Aluminum, DoL Case No.
92-OFC-6 (2/10/94), reported in BNA 3 Health L. Rep. 8, d22
(2/24/94).  Thanks to Mark Scherzer, Esq., for bringing this case,
with its obvious ramifications for asymptomatic HIV+ individuals,
to our attention.  ( 503 applies to employment practices of
federal contractors.) A.S.L.

AIDS Phobia & Emotional Distress Claims Abound

In Bridgewater v. North American Biologicals, Inc., 1994 WL 71269
(Feb. 25), the U.S. District Court, Eastern District of Louisiana,
refused to dismiss an emotional distress suit filed as a diversity
claim by Angelia Bridgewater on behalf of herself and her son
Michael, a U.S. Dept. of Labor Job Corps participant who was
incorrectly reported as HIV+ by the defendant laboratory.  Mrs.
Bridgewater asserted an emotional distress claim for injury
suffered from the time of the false notification until four months
later when the Bridgewaters learned of the error.  The defendant
lab, which processes AIDS tests for the Job Corps, moved to
dismiss, claiming that the complaint failed the "amount in
controversy" requirement for diversity cases.  The court denied the
motion, saying that it could "not conclude that it appears to a
legal certainty that plaintiff's claim does not exceed $50,000."
A.S.L. * * * A woman incorrectly diagnosed as HIV+ had no ground to
sue for negligent infliction of emotional distress, an Ohio appeals
court ruled March 16.  The plaintiff in Heiner v. Moretuzzo, 1994
WL 78687 (Ohio App. 9 Dist.), who was seeking donor insemination,
had blood taken at a local hospital.  Two tests performed by the
American Red Cross indicated she was HIV+, which her doctor told
her.  A specialist later found the diagnosis was incorrect.  She
sued the doctor, the hospital and the Red Cross for negligent
infliction of emotional distress.  The appeals court upheld the
trial court's dismissal of the claim.  Under Ohio law, the court
said, a plaintiff may not recover for the "fear of a nonexistent
peril"; the peril was nonexistent, the court reasoned, since the
woman "was never in real danger."  Whether the diagnosis fell below
a proper standard of medical care was irrelevant to the emotional
distress claim, said the court. K.R. * * * Following several other
jurisdictions, Judge Moraghan of the Superior Court of Connecticut
ruled March 3 that to assert a claim for `AIDS phobia' one must
show actual exposure to AIDS or HIV.  Barrett v. Danbury Hospital,
1994 WL 76394.  Allen Barrett was admitted to the emergency room
complaining of abdominal pains.  During an examination while
Barrett was positioned on top of a gurney, a doctor discovered he
was sitting in a pool of blood.  Two rectal exams were done looking
for the source of the blood but found nothing.  Mr. Barrett then
noticed that the blood was not emanating from his body but was
oozing from the vinyl pad on top of the gurney.  The blood had come
into contact with Mr. Barrett's underwear and Barrett alleged that
during the rectal exams blood was introduced into his anus.  The
examining doctor's affidavit claimed that since no blood was found
in the anus, the rectal exams could not have exposed Barrett. 
There was no evidence that the blood on the gurney was HIV+.  On
summary judgment the court held for defendants.  The court's
decision was based on Barrett's lack of proof that blood was
introduced into his anus and Barrett's inability to demonstrate
exposure to HIV or AIDS.  Apparently, the blood on the gurney was
never tested.  T.V.L. * * * Justice J.B. Lefkowitz of the N.Y.
Supreme Court permitted a woman whose male sexual partner of nine
years died of AIDS to assert intentional tort and negligence claims
against his estate.  Tischler v. Dimenna, 1994 WL 99489.  Plaintiff
alleged that her deceased partner contracted HIV as a result of
homosexual activity with his best friend (who died of AIDS in 1990)
and yet did not inform her of his own HIV status until on his
deathbed in December 1991.  Denying a defense motion for summary
judgment, the court noted that plaintiff's claim that she and the
decedent engaged in unprotected sexual activity prior to his death
was sufficient to meet the requirement of probable exposure
necessary to make out a prima facie case of "emotional distress for
the fear of contracting AIDS."  A jury is to determine whether the
decedent had exposed plaintiff knowingly or negligently.  The jury
will also determine whether plaintiff's knowledge of her partner's
condition, his alleged "liaison" with another man, and her own
unprotected sexual activity with him are sufficient to establish
the reasonableness of her fear of contracting AIDS.  The court
noted that current HIV-testing procedures virtually eliminate
uncertainty as to whether a person exposed to the virus has
actually contracted it once six months have elapsed since exposure. 
Plaintiff tested negative as recently as January 1993.  However,
the legal fact that plaintiff will probably never contract the
virus as a result of contact with the decedent will not nullify a
claim for damages based on the time between when plaintiff learned
of decedent's HIV status and when the negative test results made
her claim for emotional distress no longer reasonable. R.B. 

Court Dismisses "False Light" Claim Against Newspaper

In an action for defamation, invasion of privacy, and casting in a
false light, an Ohio intermediate court affirmed summary judgement
granted to a newspaper that published a story about an emergency
room patient (suspected to have AIDS) who assaulted three emergency
room personnel. Linda A. Dinkel v. Lincoln Publishing Inc., 1994
Ohio App. LEXIS 721 (Feb. 28).  Plaintiffs Dinkel and Diana K.
Stamler are nurses and Michele Ardema is a medical technologist;
all three staffed the Mercy Hospital emergency room in Hamilton,
Ohio, when Lisa Farris was brought in for treatment of a drug
overdose.  Dinkel was slapped and splashed with blood in the face
and mouth when Farris tore out her IV.  Stamler was kicked and
sprained her thumb trying to subdue Farris.  Ardema sustained a
laceration on her arm when trying to draw blood.  Police reports
reflected suspicion that Farris had AIDS, because of her history of
intravenous drug use and prostitution.  Lincoln's newspapers
published a story two days later with the headline: "Woman Claiming
AIDS Charged with Assault."  Plaintiffs brought their action, and
Lincoln then moved for summary judgment, claiming that it was not
liable for defamation as a matter of law, and that it was
privileged to publish a "fair report" of the contents of the police
report.  Unless published maliciously, a news report of the
contents of a police report is privileged "if the news report: (1)
deals with a matter of public concern; and (2) is a `fair and
substantially accurate account' of the information contained in the
police or other official government report."  The trial court found
that an emergency room assault is a matter of public concern and
that the newspaper statement that the woman "claimed" having AIDS
was a fair and substantially accurate account of the police report. 
The plaintiffs were "in no less or more a `false light' than had
the story literally quoted [the police officer who expressed his
suspicion]."  Further, the trial court found it no less
disconcerting to be assaulted by someone "suspected" of having AIDS
than by someone claiming to have AIDS.  The appellate court
affirmed, finding the discrepancy between "claiming" and
"suspected" minor and "merely a matter of semantics." 
Additionally, the record showed that the reporter had some evidence
that Farris, on other occasions, claimed to police officers to have
AIDS.  Further, the appellate court found that the story was not
defamatory because even if false, and even if the newspaper failed
to act reasonably in trying to verify the story, the story was not
defamatory to the plaintiffs as a matter of law.  "The `claim' of
AIDS was linked to Farris, not to appellants themselves." Finally,
the facts in this case were not so egregious as to sustain a "false
light invasion of privacy" claim.  M.L.

Federal Law & Litigation Notes

 Attorney General Janet Reno announced that the Immigration Service
will allow HIV+ persons from overseas to enter the U.S. for up to
ten days to attend or participate in the Gay Games, the Stonewall
25 celebration, and the International Lesbian and Gay Association
conference being held in June in New York City. * * * The New York
Times reported that a Maryland man has filed a federal district
court "John Doe" lawsuit against James Rowe of the Maryland AIDS
Administration and other named plaintiffs, alleging violation of
the constitutional right of privacy and unlawful search and seizure
in connection with forced HIV testing.  According to the complaint,
a sexual partner of Doe tested HIV+ and gave his name to state
officials.  When Doe did not respond to repeated messages to come
in for testing, the AIDS agency secured a warrant for his arrest,
a police officer pulled him over as he was driving to work,
handcuffed him and took him to the county jail where he was
forcibly tested; he was later informed he was HIV+.  Although there
is a Maryland law criminalizing knowing HIV transmission, Doe's
complaint argues that the officials had no evidentiary basis for
seeking an arrest warrant.  The Times article reported that the
ACLU and other civil rights groups were collaborating on the case,
in which Nancy Paige is representing Doe. * * * The U.S. Justice
Department has settled its first AIDS discrimination public
services case under the ADA.  The City of Philadelphia agreed to
require EMS workers and fire fighters to serve people with
HIV/AIDS, and to develop an AIDS training program for those
workers.  The March 18 settlement of DOJ Complaint No. 204-64-24 is
expected to provide a model for EMS services in other cities. (See
BNA Daily Labor Report No. 54, 3/22/94.) * * * The San Francisco
Sentinel reports that Clark Clementsen, a Los Gatos, California,
resident, is disputing an IRS ruling that he must pay $35,000 in
capital gains tax after selling his home to escape neighborhood
hatemongers.  After his lover died from AIDS, Clementsen was forced
to sell his home due to neighborhood reactions that included
jeering, name-calling, blocking his driveway, disturbing him in the
middle of the night, and burglary.  IRC sec. 1034 requires payment
of capital gains tax when an individual sells two homes in the same
24-month period (applicable to Clementsen), but sec. 1033 exempts
situations where property is destroyed, stolen, seized or
condemned.  IRS officials sympathized with Clementsen's claim that
his forced sale should be exempted, but claimed they did not have
authority to grant the exemption.  Clementsen hopes to sue in
district court, but must first raise $35,000 to pay the tax before
the statute of limitations runs out in March 1995. * * * In
Laureano v. Vega, 1994 WL 68357 (U.S. Dist. Ct., S.D.N.Y., Feb.
25), the court dismissed a variety of constitutional and statutory
claims of discrimination and cruel and unusual punishment by a New
York State prisoner with AIDS, and denied plaintiff's motion for
appointment of counsel. A.S.L.

State Litigation Notes

In State v. Cross, 1994 WL 82244 (Wis. Ct. App., March 17), the
court held per curiam that HIV+ status alone does not provide a
basis for modifying a prison sentence, when the defendant first
learned his HIV status after sentencing.  Upholding a 9-year
sentence imposed for a variety of non-violent crimes Cross had
committed, the court of appeals stated: "Here, the court concluded
that regardless of the new information on Cross's life expectancy
and his anticipated medical needs, he remained a danger to society
absent a long period of incarceration.  Given Cross's background,
that was a reasonable conclusion and justified the determination
not to reduce the sentence." * * * Attorneys in State v. Perea
speculate that the Feb. 28 conviction of Ignacio Perea in Florida
for attempted murder may be the first to accept HIV as a deadly
weapon in the context of sexual assault.  Perea, who knew he was
HIV+, was found to have had sex with an 11-year old boy, according
to the National Law Journal of March 14.  On March 15, a Portland,
Oregon jury convicted Timothy Hinkhouse, an HIV+ resident of
Gresham, Oregon, of 30 counts of attempted murder based on
incidents of unprotected consensual intercourse with three women. 
None of the women has tested positive for HIV, but the state argued
that their contact was too recent to rule out a future positive HIV
test, according to a report in the Philadelphia Inquirer on March
16. A.S.L. * * * The N.Y. Court of Appeals granted leave for an
appeal on Feb. 22 in Syracuse Community Health Center v. Wendi
A.M., 604 N.Y.S.2d 406 (1993).  The Appellate Division, 4th Dept.,
unanimously vacated a determination by the State Division of Human
Rights that a dental clinic unlawfully discriminated against a
patient on the basis of actual or perceived HIV status when the
clinic took the "extra precaution" of swaddling every exposed
surface in the treatment room with paper towels.  While the clinic
took universal precautions (masks, gloves, etc.) with all patients,
it took these "extra precautions" with all patients known or
believed to be HIV+.  The court said there was "no foundation in
the record" for the Division's conclusion that this practice
exposed the patient to public humiliation; the Division's award of
$10,000 compensatory damages for hurt, humiliation and mental
anguish, was vacated.  A.S.L. * * *  Also before the N.Y. Court of
Appeals is People v. Lawson, 603 N.Y.S.2d 311 (1993), in which the
Appellate Division, 1st Dept., voted 3-2 to affirm a dismissal in
the interest of justice of drug-related indictments against a
person with AIDS.  The trial court found that the defendant, a
military veteran and first offender who was physically quite
debilitated, should not be prosecuted, despite the lack of medical
evidence that he was in the final stages of "full-blown AIDS."  The
majority wrote that "the reality of the situation was sufficiently
obvious to justify the motion court's exercise of discretion in
dismissing the indictments."  Two justices dissented in an opinion
by Justice Israel Rubin, who argued that a trial judge should not
grant such a motion in the absence of competent medical evidence,
and should not rely on "its own lay observations" in determining
the defendant's medical condition.  Justice Rubin granted a motion
for leave to appeal on Jan. 13, and the court announced the filing
of the appeal on Feb. 28.  The Court of Appeals has not previously
addressed the issue of dismissals in the interest of justice for
defendants with AIDS, a recurring question in the lower courts.
A.S.L. * * * The Ohio Court of Appeals ruled in Arnold v. American
Red Cross, 1994 WL 66220 (March 3), that a trial court improperly
ordered the Red Cross to release the name, address and social
security number of an HIV+ blood donor to the plaintiff's attorney
in an HIV-transfusion case.  The court held that the donor, since
deceased, had a right of privacy based on an Ohio HIV
confidentiality statute, that could only be overcome by a showing
of compelling need for the information by the plaintiff.  The court
concluded that the plaintiff's discovery needs could be satisfied
by releasing the donor's medical record, redacted to protect the
donor's identity.  A.S.L. * * * In October 1988, plaintiff Carol
Doe registered for treatment in Jamaica Hospital's high-risk
prenatal care clinic.  In an action against the hospital and one of
its employees, Dr. Abitbol, Doe claimed that after she tested HIV+,
hospital personnel refused to continue treating her at the clinic,
told her she should have an abortion, and referred her to Kings
County Hospital where she underwent an abortion.  Doe alleged that
the defendants breached their duty of care and violated her rights
under the Rehabilitation Act and New York Human Rights Law.  The
N.Y. Appellate Division, 2nd Department, ruled that the federal
Rehabilitation Act, which applies to entities receiving federal
funds, did not apply to Dr. Abitbol simply because he was an
employee of a federally-funded hospital.  Additionally, the court
held that there were triable issues of fact in the plaintiff's
allegations of negligence, and violations of the state Human Rights
Law.  Doe v. Jamaica Hospital and Abitbol, 1994 WL 68733 (N.Y.A.D.
2 Dept., March 7)  A.T. * * * The San Francisco Sentinel reports
that attorney Paul Wotman filed suit March 2 in San Francisco
Superior Court on behalf of a John Doe plaintiff against Dr. David
L. Kahn, a cosmetic surgeon who allegedly maintains a policy of not
treating HIV-infected persons.  Wotman is alleging a violation of
California's Unruh Civil Rights Act and the Americans With
Disabilities Act, as well as San Francisco's human rights
ordinance.  A.S.L. 

AIDS Legislative Notes

Chairs of the health committees in the N.Y. Assembly and Senate
were reported late in March to have reached agreement on a bill
that would require counselling of pregnant women about the
desirability of HIV testing, but would not mandate testing of all
newborns, thus rejecting a pending proposal for mandatory testing.
* * * Alaska Governor Walter J. Hickel signed into law H.B. 109,
which authorizes complainants in sexual assault cases to request
HIV testing of their alleged assailants, according to The Advocate.

PUBLICATIONS NOTED & ANNOUNCEMENTS

ANNOUNCEMENTS

The Lesbian and Gay Law Association of Greater N.Y., in conjunction with the Office of Career
Services at New York Law School, will hold a reception for law students spending the summer
in the New York City metro area on Thursday, June 2, 6 - 8 p.m., at New York Law School,
57 Worth Street, Manhattan.  This will provide an opportunity for students from different
schools to make contacts and plan activities during their summer in New York.  Admission is
free of charge.  No RSVP is required.  Contact LeGaL President Jim Williams for details at
212-416-8714.

The Massachusetts Lesbian and Gay Bar Association's annual dinner keynote speaker on May
6 will be Law Notes contributing writer Paula Ettelbrick, Public Policy Director of the National
Center for Lesbian Rights.  MLGBA will give its Public Service Award to openly gay former
Boston city council member David Scondras.

Lambda Legal Defense is seeking a staff attorney for its AIDS Project, to be located in the
Chicago office.  "Applicants must have a law degree and significant litigation experience (4 or
more years of litigation experience preferred).  Familiarity with AIDS/HIV issues and/or
demonstrated commitment to the concerns of people with HIV/AIDS, gay men and lesbians
preferred.  Must have excellent written and verbal skills and ability to work with people of
varying cultural and racial groups."  Salary range is mid-30's to 40,000, depending on
experience, with full benefits.  Lambda is an equal opportunity employer.  Send resume, writing
sample and references to Pat Logue, Lambda Legal Defense, 17 E. Monroe St., Suite 212,
Chicago, IL 60603.  Lambda is also accepting applications for the positions of Education
Coordinator and Public Information Coordinator.  Inquiries should be directed to William Peters,
Development Director, for the former, Beatrice Dohrn, Legal Director, for the later, both at 666
Broadway, 12th Floor, New York, NY 10012.

Turning the Century: Communication, Coalition and Change in an Environment Increasingly
Hostile to Lesbians, Gay Men, and Bisexuals is the title for a conference May 13-15, being held
in Salt Lake City, Utah, co-sponsored by the ACLU of Utah, the Women's Studies Center of
the University of Utah, and a variety of lesbian and gay groups in the state.  An impressive
roster of speakers is scheduled to participate.  For information on registration and travel and
hotel arrangements, call ACLU of Utah at 801-521-9862.

The National Lawyers Guild AIDS Network has ceased operations due to inadequate funding. 
The Network published a well-respected newsletter, distributed the AIDS Practice Manual, and
provided a resource for attorneys seeking information and advice on AIDS-related legal issues. 
The Lawyers Guild is creating an HIV/AIDS Advisory Committee to fill some of the gap created
by dissolution of the Network.  It will be chaired by Mark Vermeulen.  To contact the
Committee, write to Mark c/o National Lawyers Guild, 55 Avenue of the Americas, New York,
NY 10013.

LeGaL-GNY member Diane Morrison reports that excellent materials are available from Prof.
Gregory Herek of the University of California to assist in picking juries in cases where
homophobia may be an issue.  She recently used these materials to assist in picking a jury that
awarded significant damages to a gay male plaintiff who was discharged by an employer based
on an incorrect perception that he had AIDS.  Dr. Herek can be reached at 916-757-3240.  "I
recommend his work to all, especially to those who are picking juries which make decisions
about gays," wrote Ms. Morrison.

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Clark, Joseph T., The "Community Standard" in the Trial of Obscenity Cases -- A Mandate for
Empirical Evidence in Search for the Truth, 20 Ohio Northern U. L. Rev. 13 (1993).

DeGrazia, Elizabeth E., In Search of Artistic Excellence: Structural Reform of the National
Endowment for the Arts, 12 Cardozo Arts & Ent. L. J. 133 (1994).

Dorf, Michael C., Facial Challenges to State and Federal Statutes, 46 Stanford L. Rev. 235
(January 1994).

Fleming, James E., Constructing the Substantive Constitution, 72 Texas L. Rev. 211 (Dec.
1993) (argument for continued substantive content for the due process clause; uses debate about
Bowers v. Hardwick as a central feature of the argument).

Gelman, Sheldon, "Life" and "Liberty": Their Original Meaning, Historical Antecedents, and
Current Significance in the Debate Over Abortion Rights, 78 Minn. L. Rev. 585 (Feb. 1984).

Gregory, John De Witt, Peter N. Swisher and Sheryl L. Scheible, Understanding Family Law
(Matthew Bender, Legal Text Series, 1993) (recently published treatise).

Henson, Deborah M., A Comparative Analysis of Same-Sex Partnership Protections:
Recommendations for American Reform, 7 Int'l J. L. & the Family 282 (1993).

Jacobs, Andrew M., The Rhetorical Construction of Rights: The Case of the Gay Rights
Movement, 1969-1991, 72 Neb. L. Rev. 723 (1993).

Kendall, Christopher N., "Real Dominant, Real Fun!": Gay Male Pornography and the Pursuit
of Masculinity, 57 Saskatchewan L. Rev. 21 (1993).

Mackenzie, Robin, Transsexuals' Legal Sexual Status and Same Sex Marriage in New Zealand,
7 Otago (NZ) L. Rev. 556 (1992).

Parness, Jeffrey A., Designating Male Parents at Birth, 26 U. Mich. J. L. Reform 573 (Spring
1993).

Ruggles, Steven, The Transformation of American Family Structure, 99 Am. Hist. Rev. 103
(February 1994).

Smith, Kenneth, Municipal Regulation of Hate Crimes, Current Municipal Problems, 1994
volume, p. 357.

Stychin, Carl F., Identities, Sexualities, and the Postmodern Subject: An Analysis of Artistic
Funding by the National Endowment for the Arts, 12 Cardozo Arts & Ent. L. J. 79 (1994).

Zelenak, Lawrence, Marriage and the Income Tax, 67 S. Cal. L. Rev. 339 (Jan. 1994) (equity
argument for abolishing joint filing for marital couples).

Student Notes & Comments: 

Averill, Sue Nussbaum, Desperately Seeking Status: Same-Sex Couples Battle for Employment-
Linked Benefits, 27 Akron L. Rev. 253 (Fall 1993).

Bader, Hans F., Penalty Enhancement for Bias-Based Crimes: Wisconsin v. Mitchell, 113 S.Ct.
2194 (1993), 17 Harv. J. L. & Pub. Pol. 253 (Winter 1994).

Catania, David A., The Universal Declaration of Human Rights and Sodomy Laws: A Federal
Common Law Right to Privacy for Homosexuals Based on Customary International Law, 31
Am. Crim. L. Rev. 289 (Winter 1994).

Chervin, Stacey B., Breaking Through the Partnership Barrier in Hopkins v. Price Waterhouse,
1992/93 Ann. Survey Am. L. 203.

Dunn, Brendan C., Merrick v. Board of Higher Education: Status and Oregon's Freedom of
Expression Law, 72 Or. L. Rev. 729 (Fall 1993) (case invalidating Oregon repeal initiative of
governor's executive order).

Fast, Scott L., Breach of Employee Confidentiality: Moving Toward a Common-Law Tort
Remedy, 142 U. Pa. L. Rev. 431 (Nov. 1993).

Herbert, Raleigh Douglas, National Endowment for the Arts -- The Federal Government's
Funding of the Arts and the Decency Clause, 18 Seton Hall Legis. J. 413 (1993).

Herron, Vince, Increasing the Speech: Diversity, Campus Speech Codes, and the Pursuit of
Truth, 67 S. Cal. L. Rev. 407 (Jan. 1994).

Humphress, Stephen B., State Protection Against Marital Status Discrimination by Employers,
31 U. Louisville J. Fam. L. 919 (1992/93) (slights lesbian/gay angle).

King, David Neil, Privacy Issues in the Private Sector Workplace: Protection From Electronic
Surveillance and the Emerging "Privacy Gap", 67 S. Cal. L. Rev. 441 (Jan. 1994).

Malloy, Denise Glaser, Another Mother?: The Courts' Denial of Legal Status to the Non-
Biological Parent Upon Dissolution of Lesbian Families, 31 U. Louisville J. Fam. L. 981
(1992/93).

Salz, Debra F., Discrimination-Prone Initiatives and the Guarantee Clause: A Role for the
Supreme Court, 62 George Washington L. Rev. 100 (Nov. 1993).

Specially Noted:

Birmingham, Michigan attorney Richard S. Victor's op-ed article in the March 28, 1994 issue
of the National Law Journal, "Biology, Destiny and Children's Rights" (pp. 21-22), makes a
compelling argument that courts should recognize a constitutional right of minor children to an
independent "best interest" analysis in custody and visitation disputes involving "non-biological
parents" with whom they have been living.  Although Victor never mentions the lesbian/gay
aspects of this issue (e.g., New York's atrocious Alison D. decision), his persuasive argument
should provide further ammunition to advocates in custody/visitation disputes involving co-
parents. * * * In Liberty and Sexuality (Macmillan, 1994), David J. Garrow documents the
development of modern sexual privacy law from the first attempts to establish family planning
clinics in Connecticut in the 1920s through the most recent Supreme Court abortion decisions,
with attention to important sodomy and gay rights litigation along the way.  At 700+ pages, one
tends to get buried in the detail, but the accounts of inside-the-Supreme Court maneuvering
around the various issues is fascinating and (regarding the Hardwick case) infuriating to read.
A.S.L.

Book Reviews:

Chon, Margaret, Sex Stories -- A Review of Sex and Reason by Richard Posner, 62 George
Washington L. Rev. 162 (Nov. 1993).

Taub, Nadine, A New View of Pornography, Speech, and Equality or Only Words?, 46 Rutgers
L. Rev. 595 (Fall 1993).

AIDS & RELATED LEGAL ISSUES: 

Bass, Stuart, Strict Construction of Health Insurance Contracts, 45 Lab. L.J. 90 (February
1994).

Blanck, Peter D., Clifford H. Schoenberg, and James P. Tenney, AIDS-Related Benefits
Equation: Costs Times Needs Divided by Applicable Law, NYLJ, 2/28/94, p.1 (Outside Counsel
Column).

Bronnit, Simon, Spreading Disease and the Criminal Law, Crim L. Rev. (U.K.)., Jan. 1994,
21-34.

Cohen, Felissa L., and Wendy M. Nehring, Foster Care of HIV-Positive Children in the United
States, 109 Pub. Health Rep. 60 (Jan-Feb 1994).

Jacobs, Daniel J., AIDS: A Selective Bibliography of Legal, Social and Medical Aspects;
Update 9, 49 Record of the Association of the Bar of the City of New York 121 (Jan/Feb 1994).

Paterson, R.J., AIDS, HIV Testing and Medical Confidentiality, 7 Otago (NZ) L. Rev. 379
(1991).

Salbu, Steven, Should AIDS Research Be Regulated? A Manhattan Project for AIDS and Other
Policy Proposals, 69 Ind. L. J. 425 (Spring 1994) (arguments against a centralized, government-
controlled AIDS research effort).

Steinhauer, Esther H., Regulatory Compliance as a Defense for Manufacturers of Vaccines
Against Pediatric AIDS, 15 J. Products & Toxics Liability 329 (1993).

Student Notes & Comments:

Danko, Barbara, The Fourth Amendment's Challenge to Mandatory AIDS Testing of Convicted
Sexual Offenders -- Has the AIDS Virus Attacked Our Constitutional Right to Privacy?, 4 Seton
Hall L.S. Const. L. J. 279 (Winter 1993).

Dirrim, Craig C., Unpopular but Not Unfair: The Fifth Circuit Considers the Terms but Ignores
the Endearment in McGann v. H & H Music Co., 113 S.Ct. 482 (1992), 72 Neb. L. Rev. 860
(1993).

Doughty, Roger, The Confidentiality of HIV-Related Information: Responding to the Resurgence
of Aggressive Public Health Interventions in the AIDS Epidemic, 82 Cal. L. Rev. 111 (January
1994).

Loeb, Gary H., Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 27
Col. J. L. & Soc. Prob. 269 (Winter 1994).

Sowder, D. Stuart, AIDS in Prison: Judicial Indifference to the AIDS Epidemic in Correctional
Facilities Threatens the Constitutionality of Incarceration, 37 N.Y.L.S. L. Rev. 663 (1992).

Turowski, Matthew E., AIDS in the Workplace: Perceptions, Prejudices and Policy Solutions,
20 Ohio Northern U. L. Rev. 139 (1993).

Specially Noted:

BNA's Fair Employment Practice Manual has revised and enlarged its AIDS Discrimination
chapter to include a discussion of the health benefit cap issue, latest transmission data, and new
state law and private sector policy information.  See FEP 421:1001. * * * The January 1994
issue of The Army Lawyer (DOA Pamphlet 27-50-254) includes at p. 35 a summary by one
Major Hunter of a recent decision of the Court of Military Appeals, holding that an HIV-infected
soldier commits aggravated assault when he has vaginal intercourse with a woman, using a
condom, without revealing his HIV status to her.  In the actual case, the condom apparently
failed and the woman subsequently tested HIV+.  The soldier received a dishonorable discharge
and a prison term of 30 months. * * * The first issue of Poz, a lifestyle magazine for people
with HIV/AIDS and others affected by the epidemic, hit the newsstands on March 15.  The
highlights were extensive interviews with Bob Hattoy, the highest ranking openly HIV+ member
of the Clinton Administration, and Ty Ross, Barry Goldwater's HIV+ gay grandson.  For
subscription information, call 800-883-2163. * * * The Annual Review of Population Law,
jointly published by the United Nations Population Fund and the Harvard Law School Library,
has just issued its Volume 17, covering legal developments during 1990.  Included is a detailed
account (pp. 182-213) of AIDS legal developments from 28 different countries during 1990. 
According to the Preface, this is the first time this publication has included summaries on AIDS
law.  The summaries seem to be objective and knowledgeable.

EDITOR'S NOTES

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. All material in the Publications Noted and Announcements section is by
A.S.L. * * * We wrote last month that the Privacy Rights Education Project in Missouri had
been formed to oppose an anti-gay initiative in that state.  A Missouri reader wrote to inform
us that PREP has been in existence since 1986; while it has a representative on the committee
opposing the initiative and was listed as lead plaintiff in PREP v. Moriarty, it was not formed
for that purpose.  A.S.L.