LESBIAN/GAY LAW NOTES May 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 Kenneth Rutman, Adjunct Professor, New York Law School William M. Millard, Esq., New York City Todd V. Lamb, Student, New York Law School Robert Bourguignon, Student, Brooklyn Law School Angela Thompson, Student, Brooklyn Law School Dirk Williams, Student Northeastern Law School, Boston LOUISIANA APPEALS COURT EDITS SEX-EDUCATION CURRICULUM In Coleman v. Caddo Parish School Board, 1994 La.App. LEXIS 756 (March 31), the Louisiana Court of Appeals, 2nd Cir., took the extraordinary step of editing public school sex education texts, in accordance with a state statute. In what is known as the "Caddo Sex Education Case," plaintiffs are Caddo Parish parents whose children attend schools operated by the defendant. The parents contended that many passages in the curriculum, Sex Respect: The Option of True Sexual Freedom, for use in 7th and 8th grades, and Facing Reality: A New Approach to the Real World for Today's Teen, for use in 10th grade, violated La. Rev. Stat. 17:281. The curriculum's publisher intervened, joining the Board as a defendant. Writing for the court, Judge C.J. Marvin stated that "the controversy arose simply because the legislature, however inartfully, by specific mandates and prohibitions, has said what a sex education curriculum shall and shall not contain." The court effectively affirmed the trial court by amending and recasting its judgment to make specific the grant of declaratory and injunctive relief. LRS 17:281 provides that public schools may offer sex education in grades 7 and up, if instruction is offered as part of an existing course such as biology or phys ed. It defines sex education as "the dissemination of factual biological or pathological information that is related to the human reproduction system and may include the study of sexually transmitted disease, pregnancy, childbirth, puberty, menstruation, and menopause." The statute recites the legislature's intent that sex education "shall not include religious beliefs, practices in human sexuality, nor the subjective moral and ethical judgments of the instructor or other persons. Students shall not be tested, quizzed, or surveyed about their personal or family beliefs or practices in sex, morality, or religion." In addition, the major emphasis in sex education "shall be to encourage sexual abstinence between unmarried persons." Finally, no sex education "shall in any way counsel or advocate abortion." The case and appeal, said Judge Marvin, present only statutory and not constitutional issues -- specifically, whether passages in the curriculum violated the specific commands of the statute. The evidence came from stipulations, documents and expert witnesses, rather than lay witnesses. The experts included M.D.'s, a rabbi, and two Ph.D.'s. The appeals court first addressed those passages that plaintiffs alleged included religious beliefs or subjective moral and ethical judgments. The trial court's analysis, affirmed on appeal, allowed passages encouraging individual behavior choices based on reasoning, self-esteem and respect for others to remain in the curricula, as long as the statements did not include religious beliefs or subjective moral and ethical judgments. For example, the both courts found the following passage not violative: "As human beings, we gain confidence by doing what is right according to the laws of nature." By contrast, the appeals court found other passages violative. For example, the appeals court examined a passage that stated: "Well, no one can deny that nature is making some kind of comment on sexual behavior through AIDS and herpes epidemics." At trial, one expert opined that "nature" was used as a substitute for "God." Both courts found that the passage referenced religious beliefs, was not used in the secular meaning or connotation, and thus included religious beliefs or subjective moral judgments. Other passages found to violate the statute for the same reason included the following: (1) "AIDS flourishes upon a moral landscape that places many sexual choices on a level terrain. AIDS will be most successfully contained within a moral landscape that makes it clear that self-serving sexual preferences are not on a level with self-discipline and commitment." (2) "As the AIDS plague and herpes are proving, faithful marital relations are good not only for society's moral tone, but for the individual's health too." Both courts also found the latter passage to be factually inaccurate, along with the following passage: "To date, there has been no definitive study done on if, or how well, the condom might prevent the spread of AIDS." The trial court interpreted the statutory requirement of factual accuracy to include both facial and effective accuracy. The appeals court affirmed that interpretation. The trial court and appeals court reached different results, however, when they looked at the following passages from the parent/teacher guide addressing homosexuality: (1) "The teacher should not be afraid to address the subject of homosexuality. . . Students should be directed to the choice that best serves the individual and the community. This is clearly the choice to abstain from homosexual activity, just as they should abstain from heterosexual activity." (2) "Discussions of the compassion and respect due to all persons should certainly include those who identify themselves as homosexual. To subjectively judge any individual is certainly not within the purview of any teacher. To objectively discuss the wisdom of certain choices is. A promiscuous lifestyle is an unhealthy lifestyle, regardless of the sex of one's partners." The trial court concluded that any discussion about whether a student's choice regarding sexual orientation "best serves the individual and the community" or is "wise" would include religious beliefs or subjective moral and ethical judgments. The Board countered that the passages simply promoted abstinence. The appeals court accepted the Board's interpretation, stating that the choice to be discussed with students is abstinence, not sexual orientation. "Neither passage," wrote Judge Marvin, "purports to make religious, moral or ethical statements or judgments about homosexuality." As to the statutory prohibition against quizzing students about sexual, moral or religious beliefs or practices, the appeals court found that the statute is not directed at what shall or shall not be taught to students, but rather at what shall not be elicited from students. The prohibition does not suggest that students may not discuss or be questioned about factually accurate course material, as long as they are not asked to disclose their personal or family beliefs or practices in sex, morality or religion. The appeals court found that only two of the passages stricken by the trial court were properly stricken for eliciting such disclosures: (1) "What does it mean to be mature?" and (2) "Do condoms make sexual activity moral?" Appealing the trial court's findings that certain passages violated the statute, the Board argued that the court should have given great deference to the Board's decisions. The appeals court, however, found that while the Board is implicitly authorized to assess educational merit of sex education curricula and to select one or more to be taught in its schools, that authority does not shield the curriculum from judicial scrutiny when it is alleged to violate the law. The legislature, said the court, had not delegated, but rather had retained, the authority to define sex education and establish basic guidelines for its content. The Board also argued that testimony by the author of Facing Reality about the effectiveness of both curricula in reducing or delaying the onset of teen sexual activity was improperly excluded. The Board suggested that the author's testimony was relevant to show whether the curriculum reflected the author's subjective moral and ethical judgments. The appeals court rejected this argument, noting that the statute does not require that the curricula be effective, and that relevance is determined in the discretion of the trial court. Having concluded that some passages violated the statute and others did not, the appeals court ordered the Board to remove or delete the specific violative passages, as well as the same passages where they were substantially reproduced in another book or books of each respective curriculum, before again permitting their use. Judge J. Hightower, dissenting in part and concurring in part, felt that the majority opinion went too far in editing passages from the curricula. Writing that "judges are not educators and the judiciary is not omniscient," Hightower concluded that the statute should be narrowly construed so as to interfere with school board discretion only in instances where a clear and unequivocal violation is shown. If statutory correctness is merely questionable, Hightower would have the court defer to the judgment of the school board. K.I. LESBIAN/GAY LEGAL NEWS Colorado Court of Appeals: Domestic Partner Not Part Of "Immediate Family" In December 1991, Mary Ross, a social worker employed by the Denver Department of Health and Hospitals, applied for family sick leave benefits when she took three days off to care for her domestic partner. The Department denied Ross' application since her domestic partner was not a member of Ross' immediate family as defined in the Career Service Authority Rules. The decision was reversed on appeal by the Career Service Authority, which found that the definition of "immediate family" in the Rules resulted in Ross' being discriminated against on the basis of sexual orientation, in violation of an anti-discrimination rule. This was reversed by the Career Service Board. Ross sought review of the Board's decision in the district court, which reversed the Board's decision. This decision was appealed yet again. On appeal, the first issue the court addressed was whether the Authority's rule, which prohibits discrimination on the basis of sexual orientation, superseded the definition of immediate family. Ross v. Denver Department of Health and Hospitals, et al., 1994 WL 115870 (Colo. App., April 7). "Immediate family" includes a husband or wife, but not a domestic partner. Ross argued that denial of sick leave to care for her domestic partner was discrimination based on her sexual orientation because employees are entitled to take sick leave to care for members of their immediate family. The court found that there was no intent for the rule to supersede the definition of immediate family. It further held that there was no evidence that the regulatory definition of immediate family discriminated on the basis of sexual orientation, since the definition in the rule applied equally to homosexual and heterosexual employees. The court emphasized that the differentiation in the definition was not founded on distinctions between heterosexual and homosexual employees, but rather on distinctions between married and unmarried employees. Ross argued that her inability to marry her same-sex partner distinguished her situation from that of an unmarried heterosexual. The court rejected this argument, stating that it was really a "perceived unfairness of the state's marital laws" for which the state legislature is responsible. Ross also urged the court to adopt a more expansive, sociologically based definition of family, like the N.Y. Court of Appeals in Braschi v. Stahl Associates. The court declined to do so, explaining that since the term family is defined in the Rule, the courts are not free to design a new definition. Finally, Ross argued that the definition of "immediate family" violated the equal protection and due process guarantees of the Colorado and United States Constitutions because it created a class of persons who were denied sick leave benefits on the basis of sexual orientation. The court reiterated that the discriminatory result that Ross experienced stemmed from her marital status rather than her sexual orientation. A.T. Court Criticizes "Don't Ask, Don't Tell," Protects Plaintiffs From Discharge The Clinton Administrationžs "donžt ask, donžt tell, donžt pursue" policy directed at gays in the military flunked its first court test April 4 when a federal district judge in NY ruled that 6 service members could not be discharged simply for declaring they were lesbian and gay in order to challenge the policy. In Able v. United States, 1994 WL 112117 (E.D.N.Y.), the plaintiffs, two on active duty and four reservists, asserted the policy violated their constitutional rights to free speech and equal protection. District Judge Eugene H. Nickerson issued a preliminary injunction blocking the Pentagon from discharging or otherwise punishing the plaintiffs until the suit was resolved. Nickerson did not rule on the merits, but his opinion pointedly questioned the policyžs supposed distinction between "homosexual orientation" and "homosexual conduct." Although Defense De- partment directives and guidelines say "homosexual orientation is not a bar" to service, any statement by a service member that he or she is gay "creates a rebuttable presumption" that the person "engages in homosexual acts or has a propensity or intent to do so," which is grounds for discharge. In practice, the court said, that presumption would be virtually impossible to rebut: "To invite someone to prove that he or she does not have an inborn tendency seems like a hollow offer." Under the policy, merely stating onežs orientation in order to challenge the law is considered homosexual conduct. "The message to those with such an orientation appears to be not to avoid private homosexual acts but to stay in the closet." In granting the preliminary injunction, the court found that the claim raised sufficiently serious questions about the violation of the plaintiffsž 1st and 5th Amendment rights. Free speech rights were implicated, Nickerson said, when service members cannot even speak against the policy in court without facing discharge. And serious equal protection questions existed as well, the court said, citing other decisions holding that the militaryžs distinction between homosexuals and heterosexuals has no rational basis, e.g., Meinhold v. U.S. Dept. of Defense, 808 F. Supp. 1455 (C.D. Cal. 1993), Steffan v. Aspin, 8 F.3d 57 (D.C. Cir. 1993). The constitutional issues at stake and the potential for irreparable harm justified the injunction, the court concluded. Nickerson was careful to say his order applied only to the plaintiffs in the case, not to service members in general. But his opinion directly questioned whether "donžt ask, donžt tell" may be upheld by the judiciary. He said: "The evidence presented in other courts casts doubt on the extent of any harm to be anticipated from the presence of homosexuals in the military." The plaintiffs are represented by volunteer attorneys from Sullivan & Cromwell working with staff attorneys from the ACLU Lesbian & Gay Rights Project and Lambda Legal Defense & Education Fund. K.R. On May 11, the D.C. Circuit Court of Appeals sitting en banc will hear argument in Steffan v. Perry, having vacated the panel opinion cited above sua sponte in response to the government's motion for reargument on limited grounds. Marc Wolinsky, a cooperating attorney for Lambda Legal Defense & Education Fund, will argue for Joe Steffan, the former Naval Academy midshipman who was forced to resign when Academy officials learned he was gay. On April 20, U.S. District Judge Thomas Zilly in Seattle heard argument in Col. Margarethe Cammermeyer's suit against the Army. Cammermeyer, a lesbian, was dismissed when she responded truthfully in a security investigation preparatory to her promotion to be chief nurse for the National Guard. Mary Newcombe, a former Lambda staff attorney, represents Cammermeyer. The Navy has instituted discharge proceedings against Lt. j.g. Dirk Selland, whose discharge for homosexuality under prior regulations was blocked last year by District Judge Stanley Sporkin. Selland v. Aspin, 832 F.Supp. 12 (D.D.C. 1993). Selland and the Navy recently agreed to discontinue his prior case as moot. Under the new rules enacted by Congress and the President in December, Selland faces discharge because the Pentagon presumes that any military member who says he is gay has a propensity to engage in "homosexual conduct." Selland will be given a chance to rebut this presumption by proving that he has no such propensity. Think about it, logicians! Selland is represented by Washington lawyer Hank Hockeimer. Contradiction time: The Coast Guard has adopted a policy forbidding discrimination on the basis of sexual orientation, but only with respect to its civilian employees. Putting on the uniform makes all the difference, apparently. (Remember Pete Williams, the Assistant Secretary of Defense during the Bush Administration who was "outed" by activists, never denied he was gay, and was retained at the highest levels of the Pentagon because he was a "civilian" employee?) There was a touch of confusion when the policy, purporting to affect "all Coast Guard members," was announced, but a clarification soon followed restricting the policy to civilian members. California State University at Sacramento's president, Donald Gerth, announced phase out of the ROTC program because of the Pentagon's "Don't Ask, Don't Tell" policy on homosexuality. Presently enrolled students can complete the program, but the school will not admit students to ROTC beginning in the Spring 1995 semester. In 1991, Dartmouth College's trustees voted to end ROTC on campus if the military did not abandon its anti-gay policy by 1994. Now, the trustees have backed down and will allow ROTC to continue on campus, primarily because they want to avoid cutting off ROTC scholarship support for "straight" students. The trustees suggested that college officials join as co-plaintiffs in one of the lawsuits attacking the ban. A.S.L. Mississippi Supreme Court Rebuffs Sodomy Law Challenge In a unanimous ruling April 14, the Mississippi Supreme Court rejected the argument that Miss. Code Ann. sec. 97-29-59, which penalizes "crime against nature," violates the right of privacy in Art. 3, sec. 18 of the Mississippi Constitution. Miller v. State, 1994 WL 125291. Defendant James Miller, manager of a fastfood restaurant, was convicted of having oral sex with a 17-year-old male employee (underage for Mississippi). The employee claimed that Miller got him drunk and then had sex with him; a 16-year-old male employee testified to having seen the incident. Miller claimed the case against him was a "concoction" based on the "victim's" need for attention and the other witness's desire for "revenge" stemming from a prior, non-sexual incident. The jury believed the witnesses and convicted Miller, who was sentenced to 10 years in prison, with 5 years suspended. Miller relied on In re Brown, 478 So.2d 1033 (1985), in which the Mississippi court found a right of privacy in Art. 3, sec. 18 of its constitution; sec. 18 mirrors the 9th Amendment of the U.S. Constitution, articulating a "rights reserved to the people" theory. The court, in an opinion by Justice Fred Banks, Jr., conceded its past precedent recognizing a right of privacy, but cursorily refused to extend it to "homosexual sodomy," stating: "[T]he appellant has failed to provide, and we have failed to locate, an instance where any court of last resort has found either a law proscribing sodomy explicitly among homosexuals or a judicial interpretation of a statute prohibiting sodomy generally, but being applied only in cases of homosexual conduct, to violate constitutionally established privacy interests. We decline to so hold here." No discussion, no analysis, and convenient omission to discuss such important cases as Commonwealth v. Wasson, 842 S.W.2d 487 (Kentucky Sup. Ct. 1992). Actually, this is depressingly typical of state courts that have rejected sodomy challenges. Miller also argued vagueness and overbreadth, claims rejected by the court on the ground that past construction of the law had long since clarified its coverage. Miller also seized upon past cases that required "penetration" for a conviction of sodomy, and argued that because the testimony was that he had performed oral sex on the "victim," he had not penetrated the victim and thus could not be convicted. To this, the court responded that the penetration requirement dated from the time when anal sex was the primary concern of the law; subsequent interpretation extended the law to fellatio, and accordingly the court "necessarily abandoned the view that `penetration' is required in any sense other than that an act historically considered unnatural was committed. . . Fulfillment of the sodomy penetration requirement is not restricted to acts wherein the accused does the penetrating," wrote Justice Banks, who also rejected Miller's contention that the "victim" should be considered an accomplice or that the trial court's error in allowing questioning about a possible sexual relationship between Miller and the other witness was significant enough to taint the conviction. The court confirmed Miller's conviction and sentencing to, in effect, 5 years in prison. In a footnote, Banks recalled Justice Lewis Powell's concurring opinion in Hardwick, where Powell said that a prison sentence for consensual sodomy would probably violate the 8th Amendment, but noted that in this case "the act here in question was not demonstrably consensual." A.S.L. Washington Appeals Court: Mom Who Surrendered Child Can't Block Adoption In State v. Lucas, 1994 WL 117238 (Apr. 11), the Washington Court of Appeals dismissed a biological mother's petition to adopt her own child to prevent his adoption by gay male foster parents, Luis and Ross Lopton. Megan Lucas had placed her child for adoption with the state's child protection department, and formally relinquished her parental rights. Lucas first filed a motion to revoke her consent to relinquishment of parental rights, on the grounds that she did not fully understand its import and that the possibility of a gay couple adopting her child was a realization of her "worst nightmare." While her motion to revoke consent was pending, Lucas and her husband (who is not the child's biological father) petitioned to adopt the child and asked that the child be placed in their care so that a statutorily required report could be prepared. The trial court granted this motion, and Lucas voluntarily dismissed her motion to revoke consent. The child protection department filed an emergency appeal with the Washington Court of Appeals. In a unanimous opinion by Judge Roselle Pekelis, the court found that Lucas lacked standing to adopt her biological child under a provision of the adoption statute providing that relinquishment of parental rights deprives the parent of standing in all legal proceedings regarding the child. In dicta, the court bluntly criticized the trial court's reasoning, stating that allowing placement of children with adoptive parents merely because of the reporting requirement would subvert the legislature's intent and "turn the process of adoption on its head, mandating placement of the child with whoever files a petition instead of encouraging petitions by those with whom the child has been successfully placed." Newspaper reports following the decision stated that Lucas would appeal, and that the Rutherford Institute, a conservative religious organization, is paying some of Lucas' legal bills. D.W. Illinois Appellate Court Halves Sentence for Murderer of Gay Man Over a sharply worded dissent, the Appellate Court of Illinois, 2nd District, reduced a prison sentence from 30 to 15 years in the brutal murder of a gay man. People v. Mangum, 1994 WL 132812 (April 15). A jury found Johnny Mangum guilty of second degree murder. Mangum killed Randy Eklund, a gay man who brought Mangum home from a bar after they had conversed over drinks. According to Mangum's testimony, after further drinks, Eklund groped Mangum in the crotch and, when Mangum resisted Eklund's advance, Eklund said, "I bought you all those drinks and I'm going to suck your dick." Eklund was 6 feet 3 inches tall and weighed 210 pounds; Mangum, who had trained as a boxer and fought in "Golden Gloves" competition a decade ago, is 5 feet 7 inches and weighed 142 pounds at the time. Mangum testified that after Eklund's statement, he "snapped" and "freaked out." The two men fought, with Mangum pursuing Eklund, allegedly out of fear that Eklund was going to get a gun. After Mangum had beaten Eklund until his face was bleeding, Mangum tied up Eklund, who was lying on the floor on his stomach. While Mangum looked around the house, Eklund sat up and then fell on his back, making a "gurgling noise." Fearing Eklund might be choking on vomit, Mangum rolled him over onto his stomach. After loading bottles of liquor and a microwave oven into Eklund's car, Mangum dropped the stuff off at a friend's apartment, then parked the car near the bar where Eklund had picked him up. At a party later that evening, Mangum told the host, "I hit the guy and I hope he doesn't die," and also remarked that he had "robbed a faggot and beat the guy up and tied him up and left him in the house." A friend of Eklund's testified at trial that Eklund frequently brought men home from the bar to have sex in his apartment. Mangum's ex-wife testified that he beat her during the marriage, had verbally expressed hatred for homosexuals, and had told her that before he met her he would go to a known gay cruising area to rob and beat up gays. Mangum was charged with first degree murder, with instructions given on lesser included charges of second degree and manslaughter. The jury returned a second degree conviction, indicating its belief that Eklund's murder was not premeditated and resulted either from heat of passion or self-defense. But the judge found the circumstances "particularly egregious," emphasizing that Mangum left Eklund bound and bleeding and showed no remorse at the time of the offense. (At the sentencing hearing, Mangum expressed great remorse.) Reviewing Mangum's record and propensity for violence, the trial judge sentence him to an extended sentence of 30 years, finding that "there was a need to deter like attacks against homosexuals and to protect the public." The appellate court disagreed, in an opinion by Justice Bowman relying on comparisons to prior Illinois decisions evaluating whether particular murders warranted extended sentences. Concluding that the trial judge abused his discretion, Bowman relied heavily on Mangum's contrition at the sentencing hearing, and his benevolent act of turning Eklund over when Mangum thought he might be choking. Dissenting, Presiding Justice Inglis emphasized "Defendant's cold-blooded lack of compassion echoed in his flight from justice and in his statement shortly after he left defendant, that he `robbed a faggot and beat the guy up and tied him up and left him in the house.'" Inglis was critical of the court's willingness to substitute its judgment as to Mangum's "remorse" against that of the trial judge, who "heard defendant's statement and had the opportunity to evaluate the timbre of the voice and the genuineness of the man. We cannot know by reading them in the record whether the words were hollow or sincere. The trial court also found that defendant's extensive and violent criminal history and the need to deter future crimes of this nature necessitated lengthy imprisonment of defendant for the protection of society. I agree." A.S.L. Initiative/Referendum Updates The U.S. Supreme Court refused to review the Florida Supreme Court's decision invalidating a referendum vote in Tampa that repealed a gay rights ordinance and forbade the city council from enacting a new one. Krivanek v. The Take Back Tampa Political Committee, 625 So.2d 840 (1994), cert. denied sub nom Clewis v. Krivanek, No. 93-1057, 62 USLW 3686 (April 18). This means the Tampa ordinance is back in effect, but opponents intend to begin the petition process to try to place a new repeal referendum on the ballot in 1995. The Florida court's decision was based on technical irregularities in the petition process. Judge Rodney W. Miller of the Circuit Court of Oregon, 3rd Judicial District, ruled April 8 in Lowe v. Keisling, No. 93C- 11972 (Marion County), that the current version of the Oregon Citizens Alliance anti-gay initiative violates the "single subject rule" of Art. IV, sec. 2(d) of the Oregon Constitution. Miller's ruling was expressed in a letter to counsel. The initiative's sponsors argued it was devoted solely to the subject of "prohibition of minority status based on homosexuality," but Miller found that the initiative proposed four distinct measures: "1. A prohibition on adopting or enforcing laws extending minority status based on homosexuality. 2. A limitation on children's public school curricula and public library access on homosexual issues. 3. A prohibition on government spending to promote or express approval of homosexuality. 4. A dictate on the terms and nature of public employment of homosexuals." Oregon, like many states, requires that ballot measures concern a single subject, to avoid confronting voters with a situation where they must vote for something with which they disagree in order to get something with which they agree. For example, a voter might want to prohibit government spending to "promote" homosexuality but not want to interfere with employment rights, but by voting for the former would also be endorsing the latter. Lon Mabon, head of OCA, announced that Miller's ruling would be appealed, but that it was too late for OCA to formulate an alternative measure for this year's ballot. The Washington State Supreme Court will meet May 12 in private conference to consider a motion by Attorney General Christine Gregoire to dismiss a suit brought by civil rights groups against two pending anti-gay initiatives, Nos. 608 and 610. The plaintiffs seek a judicial declaration that the initiatives are "beyond the scope of the initiative process" because they violate the single-subject requirement and embody "patently unconstitutional" attempts to restrict fundamental rights of an indentifiable group. Gregoire argues that the democratic process should be allowed to work, and the court should reserve judgment until such time as it would become necessary due to passage of one or both of the initiatives. Initiative 610 would bar gay rights laws, outlaw adoptions and marriages by gays or award of child custody to gay parents, and bar schools from presenting homosexuality as healthy or acceptable. Initiative 608 omits the family law elements of Initiative 610, and is considered more likely to attract enough signatures by July 8 to be included on the ballot next fall. Activists in Arizona filed suit April 21 in Maricopa County Superior Court against Frank Meliti, leader of the Traditional Values Coalition of Arizona, seeking a ruling invalidating a proposed initiative on procedural grounds. Citizen A v. Meliti. As no petitions have been filed with the state, the plaintiffs are precluded from attacking the constitutionality of the proposed measure, but they contend that it fails to comply with Arizona procedural requirements in three respects: it covers more than one subject, it leaves key terms undefined and indefinite, and the summary language totally obscures the purpose of the measure. Cincinnati has lost a fourth major convention due to last fall's passage of Issue 3, which would repeal the city's gay rights ordinance and forbid such enactments in the future. The American Speech-Language-Hearing Assocaition's 11,000 member convention planned for November 1995, has pulled out of town, along with the Art Librarians Society of North America, the American Historical Association, and the American Library Association. The estimated loss of convention revenues from these four withdrawals exceeds $20 million. A.S.L. Arizona Trial Judge Rejects Marriage Challenge; Other Marriage News Pima County, Arizona, Superior Court Judge Bernardo P. Velasco ruled April 13 in Callender v. Corbett, No. 296666, that Arizona Rev. Stat. 25-125, which restricts valid marriages to opposite sex couples, is constitutional. Several same-sex couples brought a declaratory judgment action, and filed a motion for summary judgment. Velsaco opined that the decision whether to allow same-sex couples to marry was a legislative policy matter. "The underlying foundation of the question is whether community morals are a valid basis for enacting and upholding legislative statutes. In Arizona, moral judgments are generally left in the hands of the legislature. . . The statutory definition of marriage is a passive recognition of Arizona's societal desires. Arizona's marriage statute was not enacted to selectively discriminate against any particular individuals. It merely codifies what has traditionally been defined as marriage. In Arizona, the rational basis test is the applicable test utilized to review challenges to the constitutionality of our statutes, under this test Plaintiffs' Motion for Summary Judgment is denied." That's the full legal analysis. No discussion is provided by Judge Velasco of the plaintiffs' various arguments supporting their claim that the statute was unconstitutional. The plaintiffs' lawyers, Linda Harter, Lisa Hise and Paul Gattone, on behalf of the local chapter of the National Lawyers Guild, are considering strategies for seeking reconsideration or to appeal. * * * On an international note, a male couple in Moscow attempting to register their relationship at Moscow's Palace of Weddings Number 4, was rejected on April 12 by the office's manager, Karmen Bruyeva, according to a Reuters dispatch published in several American newspapers. Robert Filippini and Yaroslav Mogutin, an American and a Russian, met when Filippini came to Moscow two years ago to work as a journalist. They've lived together for three months. A.S.L. In Denton v. Denton (April 15), a decision reported in the press but not yet available on databases, the Kentucky Court of Appeals reversed a marriage annulment that was predicated on the husband's failure to disclose a gay affair prior to the marriage ceremony. Mrs. Denton, seeking the annulment, alleged she had been "fraudulently induced to marry," and successfully persuaded Graves County Circuit Court Judge John Daughaday that a prospective spouse's sexual orientation was a material fact that must be disclosed prior to marriage. Disagreeing, Court of Appeals Judge John Miller held it would violate equal protection to annul this marriage under the circumstances, when a prospective spouse's heterosexual affairs are not required to be disclosed. Miller agreed with Mr. Denton's argument that the proper remedy for the wife is a divorce. Dissenting judge Wilfrid Schroder disagreed, arguing that Mr. Denton had misrepresented his sexual orientation "solely to provide a cover." A.S.L. A New York County Surrogate Judge rejected the constitutional claim of a surviving gay partner who sought to inherit from the estate of his intestate deceased companion. In Matter of Gary S. Petri, NYLJ, p. 29, col. 1 (April 4), Judge Eve Preminger (who previously decided the groundbreaking New York second-parent adoption case, Matter of Evan, 583 N.Y.S.2d 997 [1992]) ruled that the intestacy law's requirement that a legal spouse be given priority of succession does not discriminate on the basis of sexual orientation and is in any event justified on the basis of the "compelling state interest in the orderliness of transfer of property rights on death." According to Preminger, the state has a compelling interest in distribution schemes that are "clear, simple, predictable and capable of determining heirs at the moment of death." Since common law marriage was abolished 65 years ago in N.Y., it cannot be used, by gay or straight survivors, to claim a spousal distribution. Despite this ruling, Judge Preminger disagreed with the survivor's claim that he and his partner could not have married. Insofar as state law "has no requirement that applicants for a marriage license be of different sexes," she seems to be inviting a challenge to the presumption that lesbian and gay couples cannot marry in N.Y. P.L.E. Federal Litigation Notes The U.S. Supreme Court continues to shy away from tackling the question whether sex is a "suspect classification" under the Equal Protection requirements of the 5th and 14th amendments. In J.E.B. v. Alabama, No. 92-1239, 62 USLW 4219 (April 19), the Court ruled that sex-based peremptory juror challenges violate the constitution. Finding that allowing such challenges was not "substantially related to an important government objective," Justice Blackmun concluded that the heightened scrutiny test sufficed to render the practice unconstitutional, and there was no need to engage in a suspect classification analysis. The court took the same tack last fall in Harris V. Forklift Systems, 114 S.Ct. 367 (1993). * * * The U.S. Tax Court affirmed a decision by the Internal Revenue Service to deny sec. 501(c)(3) tax status to The Nationalist Movement, a right-wing white supremacy group that advocates death for homosexuals and mandatory HIV testing and quarantine of HIV+ people. The Movement, a Mississippi non-profit corporation, claimed that its activities were exclusively charitable and educational. Tax Court Judge Hamblen found that The Movement's telephone counselling service's "charitable" function was inadequately documented, and that its newsletter, the basis for its "educational" claim, failed to meet the regulatory definition of an educational publication, due to its distorted, inflammatory, and non-fact based character. The Nationalist Movement v. Commissioner, 102 T.C. No. 22, 1994 WL 118959 (April 11). * * * The U.S. Court of Appeals for the 2nd Circuit granted a new trial on charges by Marc J. Anderson and Jeffrey E. Grubb, gay men, that Drug Enforcement Agent Ed Wisneifski violated a duty to intervene when his co-defendants, two other DEA agents, were beating up Anderson and Grubb while shouting homophobic epithets after Anderson's motorcycle bumped a parked DEA vehicle. Anderson v. Branen, 17 F.3d 552 (Feb. 24). Anderson and Grubb were arrested for assaulting the federal agents, but all charges were dropped against them. They then sued the agents, resulting in a hung jury on claims against the other agents and a verdict in favor of Wisniefski. On appeal of the verdict as to Wisniefski, the plaintiffs objected to several aspects of District Judge Richard Owen's jury charge. The court of appeals agreed that Owen had not properly instructed the jury on the law with regard to a law enforcement officer's duty to intervene when other officers are violating the constitutional rights of a member of the public, and remanded for a new trial on that claim, while rejecting other objections to Owen's charge. * * * U.S. District Judge Patrick Kelly (Kansas) granted summary judgment to the employer in a gay-related employment case, Goeffert v. Beech Aircraft Corp., 1994 WL 146355 (April 11, not officially published). Cynthia Goeffert, an open lesbian, was a crew chief at Beech who encountered a variety of problems with co-workers and supervisors and was discharged. She sued on claims of invasion of privacy, sexual harassment, retaliation and sex discrimination, as to all of which the judge found that her allegations did not suffice to sustain a cause of action. The court found that the employer credibly established a non- discriminatory reason for the discharge -- an economically motivated layoff -- and that Title VII sexual harassment theory would not cover those elements of the complaint because the harassment, if any, was due to Goeffert's sexual orientation. A.S.L. State & Local Litigation Notes The California Supreme Court April 13 refused to review a decision by the 1st District Court of Appeal that held unenforceable a written agreement between two lesbians concerning parental rights with respect to the child they were jointly raising. Georgia P. v. Kerry B. According to news reports, the court's action was not "issued as a precedent for future cases." The court of appeal decision is still not published, so we have to rely on news reports to learn about this case. Kerry B. gave birth to a daughter conceived by donor insemination in 1985. She and her partner, Georgia P., made a written agreement that was intended to govern their relationship with the child, providing for binding arbitration of disputes. When Georgia sought to enforce the agreement and Kerry resisted, the California courts found that Georgia, who was neither a natural mother nor an adoptive mother, had no standing to assert parental rights, and that the contract was not legally enforceable. A.S.L. * * * The New York Law Journal reported April 7 that a settlement has been reached in a suit by eight members of ACT-UP against the New York City Police Department, alleging misconduct by police officers at an ACT-UP demonstration in Rockefeller Center in 1990. According to the plaintiffs' attorney, Mary D. Dorman, the case has been settled for $19,000. Dorman said the demonstrators were protesting a television appearance by comedian Andrew Dice Clay. A.S.L. * * * Adding to the growing number of courts that have granted second parent adoptions for lesbian or gay couples, Pennsylvania now has its first such written decision. Judge John Miller of the York County Court of Common Pleas allowed a lesbian co-parent to adopt the two sibling children her partner had originally adopted from an Eastern Bloc Country. In re: Adoptions of E.O.G. and A.S.G., Case Nos. 7518 and 7519 (York County Court of Common Pleas, December 22, 1993). Without any explicit analysis of the state adoption law, the court concluded that the law neither prohibits nor condones adoptions by lesbian couples. As such, the court found that the law does not disqualify a lesbian couple from adopting, and where the adoption serves the children's interests it should be granted. Like other court, the factors Judge Miller found compelling were: the children's daily life would remain the same regardless of the adoption, the benefits of inheritance rights, assurance of financial support and emotional and legal security, and the children's eligibility for health insurance and social security benefits through the second parent. Subsequently, another lesbian second-parent adoption was granted in April. (Note to Law Notes readers: Please send us any second parent adoption decisions you have. Since they are granted at the trial court level, it is quite difficult to track them down.) P.L.E. * * * A gay "ham radio" club in Connecticut has won its first battle against American Radio Relay League (ARRL) for alleged sexual orientation discrimination. On March 18, the Connecticut Commission on Human Rights and Opportunities announced it had reasonable cause to believe that ARRL had discriminated against the Lambda Amateur Radio Club when it refused to publish the gay club's notice in its newsletter. Lambda Amateur Radio Club v. American Radio Relay League, No. 9210423. The complaint was brought under Connecticut's anti-discrimination law which prohibits sexual orientation discrimination. The complaint alleged that ARRL violated the public accommodation portion of the law. The Commission found that other issue-oriented groups advertised in ARRL's newsletter including Jehovah's Witnesses, atheists, missionaries, and Ayn Rand. In addition, evidence was found that Lambda's advertisements were rejected solely due to their gay content. A full hearing is scheduled for June. The Lambda club is represented by New York attorneys Robert G. Miller, John Lynch and Catherine McGrath and Lambda Legal Defense staff attorney Suzanne Goldberg. T.V.L. * * * The Colorado Court of Appeals upheld exclusion of character evidence concerning a murder victim's sexuality when the evidence did not meet the proper standards for determining "reputation," but rather constituted mere unsubstantiated rumor. In State v. Erickson, 1994 WL 115843 (April 7), the defendant sought to introduce testimony by a witness who had heard that the victim was bisexual, in order to prove that the murder was committed in defense of a sexual assault. After the prosecution objected to the offer of evidence as irrelevant and incompetent for lack of a foundation, the trial court heard the witness' testimony outside the presence of the jury. The witness told the court that he had heard rumors from two unnamed people at a local skating rink that the victim, Erickson's roommate, was bisexual. The trial court found the testimony to be neither relevant nor competent reputation testimony. On appeal, Judge Briggs noted that previous decisions permit evidence of a victim's sexuality in order to prove a theory of self-defense against a homosexual assault. However, evidence of sexuality must comport with general requirements for reputation evidence. These include sufficient familiarity between the witness and the person about whom the evidence is offered, and evidence that the reputation is held generally in the community and is not merely "widely discussed" rumor. The defense was unable to establish that the witness "could speak with authority on the terms in which the victim was regarded in the relevant community, that the opinion expressed by two unknown declarants was held generally in the community, or that their comments represented the definite and final formation of opinion in that community." R.B. * * * The Court of Special Appeals of Maryland affirmed a conviction for distribution and possession of obscene material despite the defendant's claim that "contemporary community standards" demonstrate a tolerance for such material. In Purohit v. State, a complaint from a representative of "Christian Gathering" that a video distributor might be in violation of state obscenity laws led a local prosecutor to purchase a "homosexually oriented pornographic video" from the store. The video was seen in its entirety by the jury. The trial court excluded, at the prosecution's objection, the defendant's attempted introduction of pornographic videotapes purchased from other distributors. On appeal, Judge Bishop noted that the defense had not made a sufficient proffer of the contents of those videotapes in order to allow the appellate court to determine whether they were comparable to the homosexually oriented tape for which Purohit was being prosecuted, and thus to determine whether the trial court abused its discretion in excluding them. While the issue was thus not properly preserved for review, the appellate court noted that "none of the six videotapes was of a male homosexual theme" as was the tape sold by the defendant. The defense also contended that the issue of discriminatory prosecution was more properly decided by the jury, not the court. Judge Bishop rejected this contention, noting that discriminatory prosecution is a defect in the institution of the prosecution which must be raised prior to trial and adjudicated by the court. The court also concluded that closing remarks by the prosecution that the content of the videotape in question reduced human beings to "animals" was harmless beyond a reasonable doubt. Judge Bishop detailed the contents of the videotape and found that the entire tape could best be described as "hard-core" pornography "from beginning to end". Thus, despite the "improper" remarks from the prosecutor, the jury was still fully justified in finding that the tape was well within the ambit of Maryland's obscenity laws. R.B. Domestic Partnership Updates On April 19, Oak Park, Illinois, became the first Illinois municipality to extend health insurance and other benefits to domestic partners of city workers, but at the same time the city council rejected a proposal to establish a symbolic domestic partnership registry for all Oak Park citizens. The vote on benefits was 7-0; the vote against the registry was 4-3. * * * Agreement was reached March 17 in collective bargaining between Local 146 of AFSCME and the Sacramento (California) Employment and Training Agency to extend the Agency's bereavement leave policy to include domestic partners of Agency employees. Sacramento passed a domestic partnership registration ordinance in 1992, but it did not extend any substantive employee benefits to partnerships. SETA is the first Sacramento city agency to do so through collective bargaining. * * * Negotiators for AFSCME and Hennepin County, Minnesota, reached agreement April 4 on extending health insurance coverage to domestic partners of county employees in three bargaining units represented by the union. The agreement is subject to ratification, and would go into effect January 1 unless blocked as a result of litigation challenging the authority of local government units to provide domestic partnership benefits. * * * KQED, a public TV and radio station in San Francisco, announced March 31 that it will expand its employee benefit policy to allow employees to purchase health insurance coverage for their domestic partners on the same basis as married employees can purchase coverage for spouses. * * * Add Brown University and the University of New Mexico to the list of schools extending health coverage to same-sex domestic partners of employees. The Brown plan went into effect May 1, having been approved by the Brown Corporation in December, according to the university's alumni magazine. A press release from the University of New Mexico indicated that the new plan will extend all spousal benefits to same-sex partners, but final details are still being worked out. * * * It was on-again, off- again at University of Colorado at Boulder, where officials announced that domestic partners of students could be covered by student health insurance on the same basis as spouses of students, and then were overridden by the University's Board of Regents on April 21. The Board acted in response to angry stirrings from the state legislature, according to the Rocky Mountain News of April 22. * * * The Student Association Council at the College of William and Mary in Williamsburg, Virginia, endorsed a proposal that the college grant health benefits to same-sex domestic partners of its employees. William and Mary's faculty association has also voted to call for such benefits, but college president Timothy J. Sullivan takes the position that state legislative action is a prerequisite. * * * The faculty senate at Carnegie Mellon University in Pittsburgh, Pennsylvania, voted April 14 to ask the University to extend health and tuition benefits to domestic partners of faculty. Partners are already eligible to be treated like spouses in terms of access to campus facilities (library, athletics) and events under a 1991 policy decision. * * * The Board of Tulane University voted April 21 to defer action on a faculty-approved plan to extend health insurance and other benefits to domestic partners of university employees. The Board decided it was premature to adopt such a plan while health reform proposals are pending in Congress. A.S.L. Legislative Notes The New Hampshire Senate voted 13-10 against passage of a sexual orientation discrimination bill (H.B. 1432) on April 21. The bill had easily passed the state's House of Representatives by a 226-131 vote in February, with considerable Republican support, but a threatened veto by Governor Stephen Merrill, a conservative Republican, and opposition by conservative church groups were credited for the Senate loss. * * * The Hawaii legislature devoted considerable time to grappling with same-sex marriage, taking up for consideration H.B. 2312, which initially passed the House February 7. The bill declares the legislature's intent that marriage licenses be issued only to couples of "different genders," and specifies a primary purpose in issuing marriage licenses as protecting the health and welfare of succeeding generations. The bill also sets up a commission to recommend legislation on domestic partnership. The bill was amended in the Senate Judiciary Committee and passed the Senate April 12; it was then referred to the House for concurrence, where it passed April 26. This responds to the pending trial next year in Baehr v. Lewin, 852 P.2d 44 (1993), in which the Hawaii Supreme Court ruled that the state's refusal to issue marriage licenses to same-sex couples is subject to strict scrutiny under the state constitution's ban on sex discrimination. * * * The Huntington Beach, California, Union High School District board adopted a dress code that forbids students from wearing clothing with words or symbols "which degrade gender, culture, religion, sexual orientation or ethnic values." Sexual orientation was included at the request of a parent who attended the board meeting and spoke up about the need to protect his gay son, a student in the district. A representative of the Orange County Chapter of the ACLU told the school board that the entire proposal was unconstitutional. The main thrust of the code is to forbid students from wearing "gang attire" clothing at school. A.S.L. Law & Society Notes Martin Chavez, Mayor of Albuquerque, New Mexico, issued an "administrative instruction" March 30 adding "sexual orientation or medical condition" to a city policy listing prohibited bases for discrimination by the city, including hiring, public services, municipal housing and community center functions. See BNA Daily Labor Report No. 68, 4/11/94, at A-10-11. City Attorney Bob White stated that the mayor's action was a "standard executive order" clarifying existing informal policies. At the same time, New Mexico Governor Bruce King authorized the state's Human Resources Division, which enforces state civil rights law, to accept complaints of sexual orientation discrimination, beginning May 1. Although the Division has no statutory authority to take action based on the complaints, the governor hopes that the Division will be able to document the need for legislation. A gay rights bill passed the New Mexico Senate in 1993, but failed in the state House. No bill has been introduced this year. * * * Intervention by Lambda Legal Defense Fund Legal Director Beatrice Dohrn led to quick resolution of a dispute between a gay male couple in Hempstead, New York, and the town's cemetery administrator. The couple wished to purchase a family plot, so that the men, one of whom has AIDS, could be buried together under a double headstone. The city responded that only blood relatives could purchase family plots, and suggested that the men purchase "adjoining single plots so that you can be in close proximity throughout eternity." Two single plots would cost more than a family plot. Dohrn wrote to the Commissioner, causing town officials to reconsider and agree to sell the double plot, provided the men executed an affidavit promising that nobody else would use the plot. The story was recounted in the New York Times on April 17. * * * The Philadelphia Board of Education adopted Policy 102, intended to make district curricula sensitive to different cultures, races, genders, and sexual orientations, in January. The policy resolution did not mandate specifics for implementation, but has stirred controversy from conservative groups, and led to stormy public meetings of the Board. Some mainstream religious leaders in the city have supported the policy publicly. The Philadelphia Lesbian and Gay Task Force played a significant role in getting the policy adopted, and is now on the barricades defending it. * * * The Colorado State Parent-Teacher Association is considering a resolution encouraging the public schools to support tolerance for lesbians and gay men. You can imagine the reaction from Coloradans for Family Values, sponsors of Amendment 2! * * * Boston Mayor Thomas Menino has appointed Ann M. Maguire, a founding member of the Boston Lesbian & Gay Political Alliance, to a city cabinet position overseeing health and human service programs, and John N. Affuso, Jr., a recent law school graduate, as the mayor's liaison to the gay and lesbian community. A.S.L. International Law Notes On April 11, the United Nations Human Rights Committee, an independent panel of human rights experts, ruled that sodomy laws violate the International Covenant of Civil and Political Rights. The ruling stemmed from the Committee's consideration of the sodomy law in the Australian state of Tasmania. The committee said that the law violates Art. 17 of the Covenant, which protects the right of privacy, and Articles 2 and 26, which ban sex discrimination, which the committee opined includes sexual orientation discrimination, according to a report in the Washington Blade. The U.S., which is a signatory to the Covenant, has sodomy laws in more than 20 states. * * * An Israeli informant relates that Uzi Even, a university professor, has sued Tel Aviv University to get health insurance benefits for his domestic partner. Recently, an Israeli labor appeals court ruled that an El Al flight attendant was entitled to such benefits for his same sex partner. * * * The Associated Press reported that Tokyo, Japan, District Court Judge Toshiaki Harada ruled March 30 in favor of a petition by the Association for the Lesbian and Gay Movement to rent space in a public travel lodge for a meeting. The Tokyo metropolitan government denied the request, asserting that other guests of the lodge would be disturbed by the prospect of gay sex taking place. The decision was described as a landmark for the Japanese gay rights movement in establishing the principle of equal access to public accommodations. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS West Virginia Court: Professional Standard Of Care Applies to HIV Transfusion Case The infant plaintiff underwent corrective surgery at the Charleston Area Medical Center (CAMC) in 1983. During surgery, complications arose requiring 3-month-old Doe to receive a blood transfusion. In the years following the surgery, Doe experienced a number of unusual illnesses for a child his age and in 1990 was diagnosed with HIV. A subsequent check of medical records revealed that during the 1983 surgery, Doe received a transfusion from the American Red Cross (ARC) which was later revealed to have come from a person who died of AIDS. Plaintiffs sued for negligence, alleging that ARC failed to screen prospective donors, failed to properly screen donated blood, and failed to educate physicians and medical facilities about direct donations to avoid the need for stranger transfusions. Doe v. American National Red Cross, et al., 1994 WL 108398 (S.D. W. Va., March 25). Plaintiffs also alleged that CAMC failed to educate its staff about transfusion-associated AIDS, failed to make direct donations routinely available, and failed to retain transfusion logs long enough to permit proper look-back investigations. All parties moved for summary judgment, presenting the issue of the applicable standard of care. The court denied the parties' motions for summary judgment but ruled that the case would be decided under a "professional standard of care" like that adopted in United Blood Services v. Quintana, 827 P.2d 509 (Colo. 1992). The court stated that there was a triable issue about whether ARC, the blood-banking industry and CAMC employed adequate techniques to protect patients from contaminated blood. The court held that the case should go to trial to allow the plaintiffs to prove that the entities did not adhere to existing customs or practices and/or that industry standards were deficient. A.T. Federal Court Dismisses ERISA sec. 510 Claim in HIV Case An Indiana federal district court dismissed the claim of Deborah Arnett against the Tuthill Corp., Fill-Rite Division, on the defendant-employer's motion for summary judgment. Arnett, terminated in November of 1991, claimed that Fill-Rite discriminated against her because of her HIV status in violation of sec. 510 of ERISA, 29 U.S.C. sec. 1140, when the company fired her with an intent to deprive her of family health benefits. Arnett v. Tuthill Corp., 1994 WL 108344 (N.D.Ind., March 30). Arnett advised the company more than 2 years before her termination that both she and her husband were HIV+. She claimed that after she returned to work following a medical leave, and after Fill-Rite struck a new collective bargaining agreement with its union employees, she was terminated because she elected "family coverage" under the new plan, rather than "single coverage." Section 510 makes it unlawful to discharge, fine, suspend, expel, discipline or discriminate against a participant or beneficiary for exercising any right to which he is entitled under provisions of an employee benefit plan . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan. Arnett claimed that even though Fill-Rite proffered a legitimate, non- discriminatory reason for her termination -- that the company's sales were slow and employees were let go as a result -- the company's reason was a pretext. Although many relevant facts were hotly disputed by the parties, Arnett alleged: that a management employee asked whether her children were HIV+; that 2 days before her firing, she had a confrontation with management over her election of family, rather than single, health insurance coverage; and that the decision to fire her could only have been pretextual because she was better qualified and had a lower salary than another employee who was not fired. District Judge Cosbey rejected all of Arnett's evidence of discriminatory intent, finding that none of the facts presented, even construed most favorably toward her, could make out a prima facie case of discrimination. The court noted that the proximity in time of the confrontation over benefits and her termination could be circumstantial evidence of discriminatory intent, but said this was outweighed by the fact Fill-Rite had known for 2 years of her HIV status and paid all her claims without incident. Addressing the issue of her better suitability for the job in the face of workforce reductions, Cosbey wrote: "The issue of pretext does not address the correctness or desirability of reasons offered for employment decisions. Even if Arnett was the best possible person for the job, so long as Fill-Rite honestly believed she was not, its business judgment will not be second- guessed by Federal courts applying ERISA." Although the court granted Fill-Rite summary judgment on the ERISA claim, it did not dismiss Arnett's Equal Pay Act claim under 29 U.S.C. sec. 206. W.M.M. NY Appellate Division Refuses to Order HIV Test in Child Sex Abuse Case Roy XX was accused of having anal sex with Michael WW, an eight- year-old boy who was living with his uncle, a friend of Roy. After an initial hearing, Michael's law guardian moved to compel HIV testing of Roy. The Family Court denied the motion, and the guardian appealed. Matter of Michael WW, 1994 WL 140358 (N.Y. App. Div., 3rd Dept., April 21). Under NY Public Health Law sec. 2781(1), consent is required for an HIV test unless the test is specifically authorized under federal or state law. The law guardian relied on Family Court Act sec. 1038-a, which authorizes securing a blood sample from a defendant "only if the court finds probable cause that the evidence is reasonably related to establishing the allegations in a petition." Writing for the court, Justice Paul J. Yesawich, Jr., held that this requirement had not been met: "Here. . . there is no way in which the results of the test sought by the Law Guardian could serve to establish the allegations of the petition. Proof that Roy is infected with HIV is not in any way probative of whether he perpetrated the particular acts of sodomy and sexual abuse charged. It is true that the charges of abuse and neglect that have been brought against Roy encompass an accusation that he has impaired Michael's physical, mental or emotional condition, and a showing that he infected the child with HIV virus would certainly bear upon the nature and extent of such impairment; nevertheless, even if the alleged acts of sodomy are ultimately proven, the fact that Roy is infected still will not, without more, establish that the virus was transmitted to Michael. It is not insignificant in this regard that even Michael stated that his abuser wore a condom during the alleged penetration." The court concluded that the only way to allay Michael's fears of infection is to test Michael; if Michael were to test positive, that might supply probable cause to require testing of Roy. Justice Ann T. Mikoll dissented, asserting that the law guardian's petition "demonstrates the requisite `nexus' and the blood test is evidence `reasonably related to establishing the allegations of the petition.'" A.S.L. Treatment Denials by Self-Insured Employers: Courts Becoming More Aggressive? April 4, U.S. District Judge Clarke (E.D.Va., April 4) ruled in Wheeler v. Dynamic Engineering, Inc., 1994 WL 121163, that a self-insured employer could not deny coverage to an employee's spouse for expensive cancer chemotherapy by changing the terms of its insurance plan after the insured commenced treatment. Frances Wheeler was diagnosed with breast cancer requiring heavy- duty chemotherapy treatment in November 1993. In mid-December, her husband, a Dynamic employee, submitted a request for commitment for treatment to the company and treatment commenced that month. Meanwhile, the company changed its plan to include a specific exclusion of coverage for the specialized chemotherapy required in Mrs. Wheeler's case, and subsequently denied coverage. The court held that the company could not modify its plan once treatment had begun, dismissing the precedential value of McGann v. H & H Music, 946 F.2d 401 (5th Cir. 1991) and Owens v. Storehouse, Inc., 984 F.2d 394 (11th Cir. 1993). Clarke relied on Confer v. Custom Engineering, 952 F.2d 41 (3rd Cir. 1991), where an employer attempted to change its self-insured health plan to exclude motorcycle accidents after an employee suffered serious injuries in such an accident, and then tried to deny benefit payments to the injured employee based on the change. The 3rd Circuit held in Confer that plan amendments could only apply prospectively, which Clarke took to mean that if a course of treatment was begun, the plan must pay for the entire course of treatment. Clarke also relied on an unpublished decision by the U.S. District Court for the Western District of North Carolina, Ragucci v. Blue Cross/Blue Shield of North Carolina, C.A. # 2:93CV297 (Jan. 7, 1994), to similar effect. These rulings could be significant for employees who commence HIV/AIDS related treatments and then face exclusionary changes to their employers' health insurance plans. A.S.L. AIDS Federal Litigation Notes The U.S. Court of Appeals for the 9th Circuit has taken the unusual step of reversing a bail decision by a district judge in a case involving a person with AIDS who is appealing a banking fraud conviction and wants to avoid spending time in jail pending the appeal. According to an article in the San Francisco Daily Journal of April 7, Michael Stanfield was found guilty of fraud after a trial in connection with a $350,000 loan application. The prosecutor and federal probation officials had agreed to a request by Stanfield's attorney that he be sentenced to home detention due to the health risk of incarceration, Stanfield's doctor having estimated that he had 12 months of life remaining. U.S. District Judge Saundra Brown Armstrong rejected this, and sentenced Stanfield to 30 days in prison, 7 months home detention, 5 years supervised release and more than $67,000 in restitutional damages. Harold Rosenthal, Stanfield's attorney, filed an emergency appeal, contending that incarceration could significantly shorten his client's lifespan. The appeals court overruled Armstrong and granted Stanfield's bail application, remanding the case for reconsideration. At the scheduled oral argument in August, the court of appeals will hear argument on whether AIDS-related illness is an "extreme physical impairment" that would justify a downward departure from federal sentencing guidelines. A.S.L. * * * The 6th Circuit Court of Appeals ruled April 19 in Doe v. Wigginton, 1994 WL 133483, that Kentucky prison officials did not violate constitutional rights of the John Doe prisoner by enforcing a rule that HIV-testing would not be offered to prisoners unless the prisoner requested testing based on a history of possible exposure. Doe requested testing upon initial carceration and was denied. He requested it again at a later date, saying he had engaged in sex with IV-drug using prostitutes prior to incarceration, and was tested, tested positive, and was found to have a seriously depressed immune system. Doe alleged that the prison's procedures violated his rights to adequate health care and deprived him of "life" without due process. The court found no deliberate or reckless indifference to life, and also dismissed a claim by Doe of violation of privacy deriving from knowledge of his HIV status by prison officials who looked at his file when he was transferred to a new facility. A.S.L. * * * The 9th Circuit Court of Appeals remanded as moot claims by a California inmate who argued under the 8th Amendment that the failure of prison officials to test all inmates for HIV and to segregate those who are seropositive created for him a serious risk of HIV infection constituting cruel and unusual punishment. In Ylst v. Meneweather, 1994 WL 96267 (March 22), Judges Reavley, Pregerson, and Fernandez held that Meneweather's claim for injunctive relief was moot since there was no "reasonable expectation" that he would ever return to the medical facility at which he had previously been confined and could therefore no longer challenge the HIV testing policies at that facility. Meneweather's claim for monetary relief was barred by the Eleventh Amendment, which prohibits a federal court from awarding monetary damages to citizens against state officials. R.B. * * * The 10th Circuit Court of Appeals unanimously ruled April 13 that specimen containers used by Clinical Reference Laboratory, Inc., to collect urine and saliva samples from life insurance applicants in order to perform HIV tests for insurance companies, are "devices" subject to regulation under the Food and Drug Act by the Food and Drug Administration, but at the same time held that premarket approval by FDA is not required for their use. U.S. v. An Undetermined Number of Unlabeled Cases, 1994 WL 126571. Premarket approval is required under the Act for devices newly introduced after May 28, 1976, or for older devices that are used in new ways. FDA, taking the position that "AIDS tests which do not use blood products or serum violate the Act," insisted that CRL needed to get premarket clearance to use the specimen containers in this way and ordered CRL to stop using them. CRL filed a declaratory judgment action contesting the FDA's position, arguing that the containers were not "devices" under the Act; FDA filed its own action seeking seizure and destruction of the devices. The district court, ruling for FDA, ordered seizure and destruction. On appeal, the court found that the containers were "devices," but that they were being used in the same way they were used prior to 1976: to collect specimens of urine and saliva. According to the appeals court, the premarket approval requirement would only come into play if a change in their use would raise issues about the safety or effectiveness of the containers as such. A.S.L. * * * The 7th Circuit Court of Appeals ruled April 1 in Fedro v. Reno, 1994 WL 109736, that the U.S. Marshall's Service was not required to return to duty a marshall who had contracted hepatitis-B virus (HBV) infection on the job. The court accepted the government's argument that HBV is so contagious that there would be a significant risk that an infected marshall might pass the infection to others in the course of his work. Marshalls escort prisoners and guard courtrooms, and sometimes get into physical altercations involving close physical contact with prisoners and others, during which HBV infection is allegedly possible. Dissenting, Judge Ilana Rovner contended that the Service should have been required to consider transfering Fedro to another position in the Service; Fedro had rejected an offer of employment as a part-time criminal investigator, because he desired a full-time job. A.S.L. AIDS State Litigation Notes In April 1989, J.B. became infected with HIV while driving his brother from Sacred Heart Hospital of Pensacola, Florida, to a treatment facility in Alabama. J.B., a resident of Mississippi who was not told by hospital staff that his brother had AIDS, was driving at the request of the hospital because an ambulance was not available. During the trip, the brother "began to thrash about and accidently dislodged the dressing to his heparin lock causing J.B. to reach over while driving in an attempt to prevent the lock from coming out of L.B.'s arm. In doing so, J.B. came into contact with fluid around the lock site. J.B.'s hand had multiple nicks and cuts due to a recent fishing trip." J.B. and his family sued the hospital for negligence in a federal diversity action. The hospital asserted that Florida procedures for medical malpractice claims, including a 2-year statute of limitations and special notice and procedural requirements, applied to this case and required dismissal. The 11th Circuit Court of Appeals certified to the Florida Supreme Court the question whether the hospital was right. In a unanimous decision, the court ruled that the hospital was wrong. J.B. was never a patient and received no medical care from the hospital, wrote Justice Shaw for the court, and thus his claim against the hospital sounded in negligence rather than malpractice. J.B. v. Sacred Heart Hospital of Pensacola, 1994 WL 137919 (April 21). * * * The Ohio Court of Appeals, 11th District, upheld dismissal of a complaint March 30 in Gilkes v. Warren General Hospital, 1994 WL 631922. Plaintiffs, administrator and surviving heirs of Vivian Gilkes, asserted emotional distress claims against the hospital for attaching a tag on the body bag stating "Poss. HIV Pos" because a doctor had ordered an HIV test after medical personnel were exposed to the deceased's blood during treatment. The plaintiffs claimed that the funeral parlor did not render proper services as a result of the tag. (The deceased was HIV negative, but the funeral parlor was not notified of this.) Ohio statutes authorize physicians to perform HIV testing when medically necessary, and require health facilities to notify funeral directors of possible exposure to HIV. The court held that the defendant hospital and doctors were entitled to summary judgment as a matter of law. * * * The Nevada Supreme Court upheld a 15 year prison sentence for an HIV+ female prostitute convicted of soliciting an undercover police officer to engage in oral sex for a fee. Glegola v. State, 1994 WL 106729 (March 30). The defendant was charged under NRS 201.358, which creates a felony punishable by one to 20 years for solicitation for prostitution by somebody who knows they are HIV+. Glegola claimed that she did not actually intend to have sex with the officer, merely to lead him on and take his money. The court ruled, per curiam, that her specific intent was irrelevant, so long as she engaged in the solicitation activity knowing she was HIV+. The court also rejected her argument that a 15 year sentence was cruel or unusual punishment, despite the likely reduced lifespan of an infected person. * * * In Neal v. Neal, 1994 WL 142106 (April 22), the Idaho Supreme Court unanimously affirmed dismissal of a claim for damages for emotional distress asserted by a divorcing wife against her adulterous husband, predicated on fear of contracting a sexually transmitted disease. Citing a series of HIV-related emotional distress decisions from other jurisdictions, the court held that "there can be no reasonable fear of contracting such a disease absent proof of actual exposure." There was no evidence that either Mr. Neal's lover, Mr. Neal, or Mrs. Neal, had any sexually transmitted diseases. * * * Georgia Superior Court Judge Dan Coursey refused to overturn a DeKalb County Board of Health order that John Kappers, a gay man with AIDS who also has tuberculosis, remain confined to his home in "repiratory isolation," according to a report in the Chicago Tribune of April 13. Kappers had planned to visit relatives in the Netherlands, and has repeatedly tested negative for active TB, but the director of the Board contends that the TB test is unreliable in HIV+ individuals. A.S.L. AIDS Legal Movement Notes Eileen Hansen, formerly Executive Director of the now-defunct National Lawyers Guild AIDS Network, has become public policy director for the AIDS Legal Referral Panel of the San Francisco Bay Area, replacing Paul DiDonato, who is now a policy associate at the San Francisco AIDS Foundation. PUBLICATIONS NOTED & ANNOUNCEMENTS ANNOUNCEMENTS The Association of the Bar of the City of New York presents a special program as part of the Stonewall 25 Celebration in New York City on Thursday, June 23, at 7:00 p.m., 42 West 44th Street in Manhattan. The program is titled "Out From the Bar Raids, On to the Legal Battles: Lesbian and Gay Civil Rights in the Aftermath of the Stonewall Riots." Moderated by Thomas Stoddard, former Exec. Director of Lambda Legal Defense Fund and the Campaign for Military Service, the speakers will include Barbara Gittings, Renee Hanover, Harris Kimball, William J. Thom, Vernon E. "Copy" Berg, III, and Mary Morgan, all of whom played important roles in lesbian and gay law, as practitioners, litigants or activists, in the period leading up to and following the Stonewall Riots of 1969. National Lawyers Guild Lesbian, Gay, Bisexual Rights Committee Chair Karen Moulding has put out a nationwide call for lawyers, legal assistants and law students to provide assistance in connection with Stonewall 25. Immigration attorneys are needed at all points of entry to ensure that the HIV-waiver extended by INS for those attending is properly observed, and attorney- observers are needed in connection with various marches and demonstrations. Call 718-797-4441 to connect with the Committee and volunteer your services. Attention potential law teachers: The Association of American Law Schools 1994 Faculty Recruitment Conference will be held in Chicago Nov. 10-12, at Chicago Hilton & Towers. The first register of applicants will be mailed to law schools Aug. 29, and the first deadline for submission of applications for listing in the register is Aug. 12. Applications may be obtained from AALS by calling 202-296-8851. The American Bar Association is holding a national institute on AIDS and the Law in Boston June 16-17 and San Francisco June 23- 24. To obtain details and registration materials, call the ABA's professional education department at 1-800-964-4253. LESBIAN & GAY & RELATED LEGAL ISSUES: Abernathy, Charles F., When Civil Rights Go Wrong: Agenda and Process in Civil Rights Reform, 2 Temple Political & Civ. Rts. L. Rev. 177 (Spring 1993). Dolkart, Jane L., Hostile Environment Harassment: Equality, Objectivity, and the Shaping of Legal Standards, 43 Emory L.J. 151 (Winter 1994). Duncan, Richard F., Who Wants to Stop the Church: Homosexual Rights Legislation, Public Policy, and Religious Freedom, 69 Notre Dame L. Rev. 393 (1994) (see comment below, Specially Noted). Eskridge, William N., Jr., Gaylegal Narratives, 46 Stanford L. Rev. 607 (February 1994) (framed as a response to Farber & Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 Stanford L. Rev. 807 (1993), the article uses the "gays in the military" issue to make its points. This article evokes a responsive article by Farber & Sherry on p. 647 of the same number of Stanford L. Rev.). Halley, Janet E., Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 Stanford L. Rev. 503 (February 1994) (takes on the equal protection dilemma: how to deal with the essentialist/constructionist issue). Sanchez, John, Constitutional Privacy in Florida: Between the Idea and the Reality Falls the Shadow, 18 Nova L. Rev. 775 (Winter 1994). Wintemute, Robert, Sexual Orientation Discrimination, chapter 15 in McCrudden, Christopher & Chambers, Gerald (eds.), Individual Rights and the Law in Britain (Oxford University Press, 1994) (by a LeGaL member who teaches law in England). Yackle, Larry W., Parading Ourselves: Freedom of Speech at the Feast of St. Patrick, 73 Boston U. L. Rev. 791 (Nov. 1993) (detailed history of gay St. Patrick's Day parade controversies in New York and Boston, with thorough analysis of constitutional issues). Student Notes & Comments: Carow, Jennifer L., Davis v. Davis: An Inconsistent Exception to an Otherwise Sound Rule Advancing Procreational Freedom and Reproductive Technology, 43 DePaul L. Rev. 523 (Winter 1994). Courtney, Scot R., "Hate Crime" Statistics -- R.A.V. and Its Fallout, 19 Thurgood Marshall L. Rev. 163 (Fall 1993). Grider, Stuart, Sexual Orientation as Grounds for Asylum in the United States -- In re Tenorio, No. A72 093 558 (EOIR Immigration Court, July 26, 1993), 35 Harv. Int'l L.J. 213 (Winter 1994). Harbolt, Thomas P., Welcome to Oregon! No "Pasties" or "G- Strings" Required: Barnes v. Glen Theatre, Inc., 29 Willamette L. Rev. 129 (Winter 1993). Heatherman, Paul B., R.A.V. v. City of St. Paul, Minnesota and Wisconsin v. Mitchell: The Supreme Court's First Response to Hate Crimes, 29 Willamette L. Rev. 763 (Fall 1993). Kadiver, Nasreen Margaret, Wrongful Treatment of Haitian Refugees: U.S. Violations of Domestic and International Law, 7 Emory Int'l L.Rev. 269 (Spring 1993). Klyman, Alicia C., Family Law -- Hawk v. Hawk: Grandparent Visitation Rights -- Court Protects Parental Privacy Rights Over "Child's Best Interests", 24 Memphis State U. L. Rev. 413 (Winter 1994). Pettys, Todd Edward, Punishing Offensive Conduct on University Campuses: Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 72 N.C. L. Rev. 789 (March 1994). Wagner, Robert J., Evans v. Romer: Colorado Amendment 2 and the Search for a Fundamental right for Groups to Participate Equally in the Political Process, 38 St. Louis U. L. J. 523 (Winter 1993- 94). Specially Noted: The article by Prof. Richard F. Duncan of University of Nebraska Law School noted above may well become notorious in short order. Duncan, a conservative affiliated with the Rutherford Institute and the Washongton Legal Foundation, explains why laws forbidding sexual orientation discrimination are "special rights" laws that violate the First Amendment free exercise of religion rights of individuals who consider gays to be immoral and don't want to associate with us in workplaces, businesses, or residential housing. This article should be read by anybody engaged in gay rights work, as it is the most articulate, fully-documented piece in opposition to gay rights legislation that we have encountered, and rehearses all the arguments we should be anticipating in our legal and legislative battles. It is likely to be cited and quoted from in both of those forums. (By the way, Duncan published an essay during the 1980s calling for mandatory HIV testing for the entire population. See Commentary: Public Policy and the AIDS Epidemic, 2 J. Contemp. Health L. & Pol. 169 (Spring 1989).) * * * The February 1994 issue of Stanford Law Review is worth special attention, containing both the Halley and Eskridge articles listed above. A.S.L. Symposia: Papers of a Symposium on Hate Crime Legislation: Hate Crimes -- Propriety, Practicality and Constitutionality, 1992/1993 Ann. Survey Am. L. No. 4. * * * Fifth Annual Issue on State Constitutional Law, 24 Rutgers L.J. No. 4 (Summer 1993). AIDS & RELATED LEGAL ISSUES: Andrias, Richard T., The Criminal Justice System and the Resurgent TB Epidemic, 9 Crim. Justice No. 1, 2 (Spring 1994). Gautier, Elise, The Legal Rights and Obligations of HIV-Infected Health Care Workers. Pamphlet published by American Association of Physicians for Human Rights, 273 Church St., San Francisco, CA 94114; 415-255-4547. $10 per copy ($5 for AAPHR members and clients). Radipati, B.D.D., HIV/AIDS and Employment Law: A Comparative Synopsis, 26 Comp. & Int'l L.J. of Southern Africa 396 (Nov. 1993). Schonfeld, Robert L., and Seth P. Stein, Fighting Municipal "Tag- Team": The Federal Fair Housing Amendments Act and Its Use in Obtaining Access to Housing for Persons With Disabilities, 21 Fordham Urban L.J. 299 (1994). Student Notes & Comments: Dean, Lee Ann, Acquired Immune Deficiency Syndrome, Viatical Settlement, and the Health Care Crisis: AIDS Patients Reach Into the Future to Make Ends Meet, 25 Rutgers L.J. 117 (Autumn 1993). Furrow, Barry R., Forcing Rescue: The Landscape of Health Care Provider Obligations to Treat Patients, 3 Health Matrix - J. L.- Med. 31 (1993). Gostin, Lawrence O., The Americans With Disabilities Act and the Corpus of Anti-Discrimination Law: A Force for Change in the Future of Public Health Regulation, 3 Health Matrix - J. L.-Med. 89 (1993). Heth, Jacob A., Dangerous Liaisons: Criminalizing Conduct Related to HIV Transmission, 29 Willamette L. Rev. 843 (Fall 1993). Johnson, Kathryn A., Constructive Discharge and "Reasonable Accommodation" Under the Americans With Disabilities Act, 65 Colo. L. Rev. 175 (1993). Poston, Sarah, Disability Discrimination -- Developments in Federal Disability Discrimination Law: An Emerging REsolution to the Section 504 Damages Issue, 1992/1993 Ann. Survey Am. L. 419. Rowe, Angela D., Court Allows Discovery From Volunteer Blood Donors in Transfusion-Related AIDS Litigation, 45 S.C. L. Rev. 162 (Autumn 1993). Sarnoff, Marc David, Wheeland v. Wheeland: The First AIDS Transmission Case, 17 Trial Dipl. J. 73 (March/April 1994) (personal account of heterosexual transmission (female to male) litigation by plaintiff's attorney). Schwartz, Robert L., Life Style, Health Status, and Distributive Justice, 3 Health Matrix - J. L.-Med. 195 (1993). Sprintz, Heather, The Criminalization of Perinatal AIDS Transmission, 3 Health Matrix - J. of L.-Med. 495 (Summer 1993). Book Reviews: Books Reviewed, AIDS, Health, and Mental Health: A Primary Sourcebook, by Judith Landau-Stanton and Colleen C. Clements, 22 Bull. Am. Acad. Psych. & L. 145 (1994). Stein, Robert, Book Note, Drug Licensure: A Social Experiment Without a Control, 25 Rutgers L.J. 211 (Autumn 1993). Symposia: Symposium on the Legal and Ethical Implications of Innovative Medical Technology, 57 Albany L. Rev. No. 3 (1994). Specially Noted: The Correctional Service of Canada has published a series of volumes resulting from the work of an expert committee appointed to recommend policies on AIDS in federal prisons. The Service has accepted most of the recommendations, but rejected a recommendation to allow consensual sexual activity in prisons. Copies of the volumes can be obtained by sending a request to Health Care Services, Correctional Service Canada, 340 Laurier Ave. West, 2nd Floor, Section A, Ottawa, Ontario Canada K1A OP9. The series is titled HIV/AIDS in Prisons, and the volumes are titled: Summary Report and Recommendations, Final Report, and Background Materials. Editor's Note: All points of view expressed in Lesbian/Gay Law Notes are those of identified writers, and are not official positions of the Lesbian and Gay Law Association of Greater New York. Correspondence pertinent to issues covered in Law Notes is welcome and will be published subject to editing.