LESBIAN/GAY LAW NOTES September 1994 Lesbian & Gay Law Association of Greater New York Editor: 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 Writers: Otis Damslet, Esq., New York City Kevin Isom, Esq., Atlanta Steven Kolodny, Esq., New York City Todd V. Lamb, J.D., New York City Dirk Williams, J.D., Boston Robert Bourguignon, Student, Brooklyn Law School Paul Twarog, Student, New York Law School CINCINNATI ANTI-GAY LAW VOIDED BY FEDERAL DISTRICT COURT In a resounding rebuff to organizations sponsoring anti-gay ballot initiatives around the country, the federal district court in Cincinnati has ruled that those measures that go beyond a simple repeal of existing gay rights laws violate the 1st and 14th amendments of the federal constitution. Ruling on a challenge to "Issue 3," an amendment to the Cincinnati City Charter passed by 62 percent of the voters in November 1993, U.S. District Judge S. Arthur Spiegel issued a permanent injunction against the amendment taking effect. The defendant intervenors, proponents of Issue 3, have filed an appeal to the U.S. Court of Appeals for the 6th Circuit. The Cincinnati City Council will decide whether to appeal when it meets in September. Equality Foundation v. City of Cincinnati (U.S.Dist.Ct., S.D.Ohio, Aug. 9). In 1991, the council passed an ordinance forbidding sexual orientation discrimination by the city, and in 1992 passed an ordinance extending the discrimination ban to private sector employment, public accommodations and housing. In response, an organization calling itself Equal Rights Not Special Rights organized to place a charter amendment on the ballot. Issue 3 provided that the city could not "enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct, or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment." Issue 3 also provided that it would be self-enforcing, and would nullify any existing policies that violate "the foregoing prohibition." After Issue 3 was approved by the voters, an organization that had actively opposed it, Equality Foundation of Greater Cincinnati, Inc., obtained a temporary injunction against it going into effect. The trial was a battle of experts, and Spiegel's detailed fact findings clearly show that he found the plaintiffs' experts to be much more credible than the defendants'. The findings of fact are a crucial part of the opinion, because they reject almost all the factual predicates underlying previous negative opinions by federal courts in gay rights cases. Spiegel found, for instance, that "homosexuals comprise between 5 and 13% of the population," that "sexual orientation is a characteristic which exists separately and independently from sexual conduct or behavior," that it is "a deeply rooted, complex combination of factors including a predisposition towards affiliation, affection, or bonding with members of the oppose and/or the same gender," that it is set at an early age and "bears no relation to an individual's ability to perform, contribute to, or participate in society," that it is not a mental illness, that gays have "suffered a history of pervasive, irrational and invidious discrimination in government and private employment, in political organization and in all facets of society in general," and so forth. The plaintiffs attacked Issue 3 on several different theories, and prevailed on each of them! Spiegel found that sexual orientation is a "quasi-suspect classification," meaning that any governmental policy discriminating on that basis would be subject to heightened scrutiny, requiring a showing of an important government interest, and he also found, in agreement with the Colorado Supreme Court's intermediate decision in Evans v. Romer, 854 P.2d 1270 (Colo.), cert. denied, 114 S.Ct. 419 (1993), that Issue 3 violated a fundamental right of equal participation in the political process, justifying "strict scrutiny" under the 14th amendment. However, even were a reviewing court to disagree with Spiegel on both counts and find that Issue 3 should be evaluated under the rational basis test, Spiegel concluded that Issue 3 must fall because none of the interests argued by the state passed the rational basis test. In holding that sexual orientation is a quasi-suspect classification, Spiegel reviewed factors that the Supreme Court has considered in past cases as bearing on the level of review in an equal protection case. He found that the most significant factors were a group identity independent of the issue raised by the challenged legislation and basically beyond the control of any individual member of the group, a history of invidious discrimination based on that group identity, and a finding that the characteristic in question does not affect the ability of a member of the group to perform, participate in, or contribute to society. Spiegel found the issue of "immutability" to be of much lesser significance, and strongly disagreed with those courts who have characterized homosexuality as "behavioral" rather than an indicia of group status. For him, a distinction between status and conduct was clear and decisive in holding that sexual orientation, as such, is a status characteristic rather than a behavioral phenomenon. Finally, turning to the much debated issue of whether gays are a "politically powerless" group, a factor that he found to be of lesser significance in making the suspect classification determination, Spiegel found that gays "suffer significant political impediments" due to the traditional stigmatization of homosexuality that makes it difficult for gays to form the political coalitions necessary to pass legislation. While acknowledging the success of the gay rights movement in obtaining some state and local legislation against discrimination, Spiegel noted that gays had lost all but a handful of the initiative or referendum battles sparked by anti- gay groups, and that openly gay and lesbian public officials were very few compared to the estimated size of the gay population. Spiegel did not explain why he concluded that sexual orientation only merited quasi-suspect rather than suspect treatment for equal protection purposes, merely stating his conclusion as to the former. One suspects that it was because the Supreme Court treats sex as a quasi-suspect classification. The justifications for Issue 3 articulated by the defendants were so laughable that they were easily disposed of by Spiegel, although he showed somewhat exaggerated courtesy to the defendants in discussing them. Indeed, it appeared that the defendants struggled mightily to come up with justifications other than "we think gays are immoral and so should be relegated to second class citizenship." They argued that adding sexual orientation to civil rights laws would strain enforcement resources and deflect from the protection of groups defined by suspect classifications (such as racial and ethnic minorities). They argued for deregulation of private conduct by employers, landlords, etc., and refraining from imposing "a uniform, doctrinaire view concerning the moral relevance of homosexual behavior on all segments of the community," and, somewhat contradictorily, that Issue 3 was a legitimate articulation of the community morality that was within the electoral competence of the general public. Spiegel found all these arguments unpersuasive. Were this not enough, however, Spiegel also found that Issue 3 violated the plaintiffs' 1st Amendment rights to free speech and association and to petition the government for redress of grievances, and that the clumsily worded initiative was so indeterminate in its meaning as to violate fundamental due process requirements for legislation. Spiegel denied that his decision was giving anyone "special rights." "In voiding the Issue 3 Amendment, this Court is in no way giving any group any rights above and beyond those enjoyed by all citizens," he wrote. "To the contrary, we are simply, but crucially, preventing one group of citizens from being deprived of the very rights we all share. Furthermore, nothing in this Order should be construed in any way as impugning the integrity or motives of those who voted in favor of the passage of the Issue 3 Amendment. Likewise we are not in any way depriving anyone of the right to vote, nor are we undermining the importance of that vote. Rather, this Order merely explores the permissible scope of governmental legislation under the Constitution. And despite the fact that a majority of voters may support a given law, rights protected by the Constitution can never be subordinated to the vote of the majority. While at times this may seem unfair, especially when deeply emotional issues are involved, indeed it is the fairest, and most deeply rooted, of all of this Nation's rich traditions." The case now goes to the 6th Circuit, which does not have an affirmative record on gay issues, but the variety of theories under which the district court found Issue 3 constitutionally defective supports an optimistic prediction. Equality Foundation was represented at trial by local volunteer attorneys with the assistance of Lambda Legal Defense & Education Fund and the Ohio Human Rights Bar Association. A.S.L. LESBIAN/GAY LEGAL NEWS Massachusetts High Court Says Religious Freedom May Trump Marital Status Discrimination Law In a 4-3 decision, the Massachusetts Supreme Judicial Court held that a statute prohibiting discrimination on the basis of marital status impaired the rights of landlords to freely practice their religion by requiring them to rent to unmarried cohabitants. Attorney General v. Desilets, 636 N.E.2d 233 (July 14). The opinion written by Justice Herbert Wilkins vacated a grant of summary judgment for the defendants-landlords (who had refused to rent an apartment to an unmarried heterosexual couple on grounds of religiously-based disapproval of fornication) and was the first from a state's highest court to consider the issue. Interpreting the Massachusetts Constitution as conferring religious freedom according to cases prior to Employment Div. v. Smith, 494 U.S. 872 (1990), the court weighed the burden on the landlords' religion against the state's interest in enforcing its statute prohibiting discrimination in housing. Holding first that the statute burdened the landlords' free practice of their religion, the court then proceeded to also find an issue of material fact in whether the state could justify the enforcement of its statute by showing an important government interest. The court rejected as overly general arguments that the governmental interest served was the elimination of discrimination. Noting that the marital status discrimination prohibition was statutory rather than constitutional, and that the state's criminal fornication law provided a basis for presuming a public policy against cohabitation, the court concluded that the state's interest in eliminating discrimination was diminished. The court did, however, leave a possible escape hatch, allowing that the state could possibly prove a compelling interest in enforcing the law by quantifying the impact of housing discrimination against unmarried couples. Finding neither facts in the record nor legislative findings to that effect, the court remanded the case back to the trial court. A separate concurrence agreed with the result but would have construed one provision of the Massachusetts Constitution differently, requiring a showing that the defendants' practice of their religion had "breached the peace" before proceeding to the balancing test. The three dissenting justices would have affirmed the grant of summary judgment for the landlords, finding that no combination of facts would justify requiring the defendants to comply with the law because their constitutional right to religious freedom trumped the statutory prohibition against marital status discrimination. D.W. Oregon Appeals Court Upholds Written Agreement Relinquishing Sperm Donor's Paternal Status In Leckie v. Voorhies, 875 P.2d 521 (May 25), the Oregon Court of Appeals considered whether to uphold an agreement between a lesbian mother and a sperm donor relinquishing the donor's parental rights in the daughter born of alternative insemination. The trial court had entered summary judgment against both the donor's filiation claim under Oregon Rev. Stat. sec. 109.125 and his "psychological parent" claim under Oregon Rev. Stat. sec. 109.119(5). The donor appealed only on the filiation claim, but the court of appeals affirmed the summary judgment. The donor had entered into a written agreement with the mother and her partner ("the recipients"). The agreement provided that "each party acknowledges and agrees that donor provided his semen for purposes of said artificial insemination, and did so with the clear understanding that he would not demand, request, or compel any guardianship or custody with any child born from the artificial insemination. Further, donor acknowledges that he understood that he would have no paternal rights whatsoever with the child." In addition, the agreement provided that the recipients relinquished all right to seek financial support for the child from the donor, and the donor relinquished all right to file a paternity suit. The agreement provided for limited visitation by the donor, but only at the convenience of the recipients. The agreement specifically stated that the donor would be only a good male role model, not a father. A daughter was born in 1988, and during the first three years of her life the donor visited her regularly and made substantial financial contributions for her benefit. The daughter occasionally referred to the donor as "dad" without objection from the recipients. Disputes arose, however, over the donor's desire to participate more fully in the daughter's life. Nevertheless, after mediation in 1991, the parties reaffirmed their original agreement. Six months later the donor filed suit to establish paternity. Writing for the appeals court, Judge J.J. Haselton held that summary judgment was appropriate because the donor had expressly and effectively waived all parental rights, including the right to file a paternity suit. The court discounted the donor's argument that the parties' conduct had modified the agreement, noting that the parties had reaffirmed the agreement after mediation. Finally, the court distinguished its holding in McIntyre v. Crouch, 780 P.2d 239, rev. denied, 784 P.2d 1100 (1989), where the sperm donor pleaded that he had donated his semen in reliance on an agreement that he would remain active in the child's life and would participate in all important decisions concerning the child. K.I. Other Domestic Relations Rulings The New York Appellate Division, 3rd Department, has unanimously rejected the contention that "exceptional circumstances" must be shown before a single adult can adopt a child. Matter of Byron "K", 1994 WL 368373 (July 14). Charles "L", a gay man, filed a petition to adopt two young children, Byron and his brother Wolfgang. A hearing was held at which Charles and his partner appeared and testified, and the court received reports from the childrens' law guardian and the local adoption service. Nobody opposed the adoption, but Albany County Family Court Judge Gerard Maney rejected Charles's petition, finding (on the basis of no authority or precedent) that a single-parent adoption required a showing of exceptional circumstances (i.e., unavailability of a placement with a married couple), and that no such showing had been made. "There must be a reversal," asserted Justice D. Bruce Crew III for the court, noting that N.Y. Domestic Relations Law sec. 110 specifically states that an adult unmarried person may adopt a child, and that "relevant regulations" prohibit adoption agencies from either considering marital status of applicants or establishing policies disfavoring single or divorced applicants. Concluding that Charles's petition should have been granted, Crew rejected Maney's finding that the adoption agency and law guardian's approval was predicated on "both petition and his partner serving as parents for the children. Although the record indicates that petitioner's partner intended to act as a co- parent and was evaluated as part of the home study. . ., the pertinent reports clearly recognize petitioner as the sole applicant for adoption and recommend approval of his application on that basis. Additionally, the record reveals that the children, both of whom have special needs, have made great strides since becoming members of petitioner's family." Anne Reynolds Copps of Troy, N.Y., represented petitioners, with amicus assistance from Beatrice Dohrn of Lambda Legal Defense Fund. A.S.L. In McKolanis v. McKolanis, 1994 WL 378513 (Pa. Super. Ct., July 20), the issue was whether a wife was entitled to spousal support upon leaving the marital home after learning that the husband was a cross-dresser. (The terms "cross-dresser" and "transvestite" were used interchangeably in the opinion.) The trial court ruled that the wife was justified in leaving upon learning of this, and awarded spousal support. The superior court affirmed. The opinion is noteworthy for its detailed analysis of the standards of review, its thorough consideration of the (arguably) applicable precedent, and its cavalier acceptance of the proposition that the husband's taste for cross-dressing, without more -- the husband was apparently so discreet about this that the wife didn't learn until told by the husband after nine years of marriage -- justified the wife's departure from the marital home. S.K. Hebler v. Hebler, 1994 WL 442648 (Conn. Super. Ct., Aug. 4), reports the divorce of Kenneth and Mary Jane Hebler. Kenneth and Mary Jane first married in 1971 and divorced in 1977. They remarried in 1978; five months later Kenneth told Mary Jane that he was gay, but they decided to stay married for the sake of their son, then six years old. In mid-1984 Kenneth moved out of the house, but continued to turn over his paycheck to Mary Jane, while living rent-free with a succession of gay lovers in various locations and, for some time, with his mother, and relying on expense account reimbursements from his job as a field service engineer for Memorex Telex. After the son was grown up and no longer living at home, Kenneth filed a petition for divorce, which was contested by Mary Jane. (The grounds of contesting the divorce are not recited in the opinion by Judge Santos, but presumably had to do with Kenneth's proposed financial settlement.) The court granted the divorce on the ground of "irretrievable breakdown" of the marriage. Kenneth's homosexuality was not discussed as an issue in the opinion, other than to note his various residences with gay lovers during the marriage. The financial settlement leaves Mary Jane with the marital home, as to which she assumes obligations of a first mortgage and he assumes obligations of later mortgages taken out to finance a business venture he undertook with other partners that was unsuccessful. Kenneth has to pay $50 a week alimony for five years, and shield Mary Jane from any liability arising from his business venture, to which she had loaned money. A.S.L. The evil of Alison D. v. Virginia M. 77 N.Y.2d 651 (N.Y., 1991), lives on. In that case, New York's highest court held that a "biological stranger" to a child, even one who has form a parent- child relationship such as a lesbian co-parent, is not entitled to seek visitation rights. Now the N.Y. Appellate Division, 3rd Department, has applied Alison D. to bar a great-grandparent from seeking visitation with his great-grandson, in Matter of David M. v. Lisa M., No. 69182 (see article in N.Y. Law Journal, Aug. 22, p.1. In this case, Family Court found that the child and the petitioner "had a very warm and close relationship" and that the petitioner was the child's "primary caretaker" for several years while the child's mother was living with her grandparents. But the court, affirmed by the 3rd Dept., found that the domestic relations statute had limited visitation rights to parents, siblings and grandparents, and had to be strictly construed. "As observed in [Alison D.], wrote Justice Paul J. Yesawich, Jr., "the Legislature has apparently found no compelling reason to permit distant relatives, or parties with whom a child has established a relationship, to seek or obtain visitation." Furthermore, a common law basis for ordering visitation could only be found "upon a showing of `some compelling state purpose which furthers the child's best interests.'" A.S.L. Montana Sodomy Challenge Survives Motion to Dismiss on Standing Grounds Montana District Court Judge Jeffrey Sherlock rejected the state's motion to dismiss in Gryczan v. State, No. BDV-93-1869 (Lewis & Clark County, June 28), a declaratory judgment action challenging the constitutionality of sec. 45-5-505, MCA, which makes "deviate sexual conduct" a felony when engaged in by persons of the same sex, regardless of consent or where the conduct occurs. The state argued that none of the named plaintiffs, all self- identified as lesbians or gay men, have standing to sue, because none have been prosecuted or threatened with prosecution under the statute. Characterizing the plaintiffs' allegations of fear of prosecution and discrimination arising from the existence of the statute as "speculative" and "imaginary," the state argued that there was no justiciable controversy. The state noted that there are no reported decisions arising under the current sodomy law or any of its predecessors involving consenting adults engaged in private sexual activity; all recorded cases involved public sex or sex with minors. The plaintiffs argued that Montana courts had recognized standing of citizens to challenge criminal statutes alleged to violate constitutional provisions intended to benefit the public at large, such as the right of privacy, and that as homosexuals they were the most appropriate people to challenge the sodomy law. They relied on Blanchette v. Connecticut Gen'l Ins. Corp., 419 U.S. 102 (1974), in which the Supreme Court discussed justiciability in the context of declaratory judgment actions under criminal statutes. Ultimately, Judge Sherlock seemed to rely more on the Supreme Court's decision in Epperson v. Arkansas, 393 U.S. 97 (1968), a declaratory judgment action brought by a teacher seeking to invalidate a state law outlawing the teaching of evolution. Although the law had never been enforced and the teacher never threatened with prosecution, the Supreme Court ruled on the merits in the case and never questioned the plaintiff's standing. Sherlock noted that the sodomy law had been amended by the legislature several times in recent years, and that recent attempts to have it repealed had been unsuccessful. "Clearly, the Montana legislature has reinforced the idea that this is a viable and enforceable statute," he observed. "This Court will not assume that law enforcement agencies will perpetually ignore a statute when our legislature continues to support its validity." Furthermore, taking the factual allegations of the plaintiffs' complaint as true for purposes of deciding the motion, Sherlock found that plaintiffs had alleged sufficient personal injury: "Plaintiffs . . . allege that the statute fosters discrimination, harassment, and violence from society. The statute has often caused Plaintiffs to alter the manner in which they would normally conduct their lives. Plaintiffs also allege that because the statute labels them as felons, it can and has been used in third party contexts to deny or restrict rights of Plaintiffs and other homosexuals. . . The Court feels that these allegations regarding the societal reactions to lesbians and gay men have a sufficient nexus to the statute at issue to create a justiciable controversy. If these allegations are taken as true, the statute could certainly be said to foster these reactions by condoning the idea that homosexuality is criminal and thus in some way immoral. . . The rights of privacy and dignity are specifically guaranteed in the Montana Constitution and are fundamental rights of every Montana citizen. This Court does not take the guarantee of these rights lightly. . . The Court feels that to deny Plaintiffs access to this forum when such basic and fundamental constitutional rights are at issue would effectively nullify the purposes of the Declaratory Judgment Act and leave Plaintiffs with no legal redress. Thus, the Court finds that Plaintiffs shall be given the opportunity to proceed on their complaint and try to prove to the Court the merits of their grievances. Perhaps they will win, perhaps not. At least, they should be allowed to present their arguments in court." A.S.L. New York Jury Convicts Murderer of Senior Cravath Partner; Court Admits Evidence of Past Sexual Trysts Evidence of a murder victim's past sexual conduct is admissible when it has a significant bearing on the issues in the case, ruled Acting Justice Gerald Scheindlin in People v. Childs, 1994 WL 396601 (N.Y.Sup.Ct., Bronx County, June 30). Raymond Childs was convicted of the murder of David Schwartz. Schwartz was the former chief attorney for the real estate practice at Cravath, Swain & Moore. Childs testified that Schwartz had invited him to a professional football game. On the day of the game their plans changed and they ended up spending the day at Schwartz's Connecticut home. After returning to the Bronx, Schwartz checked the two of them into a motel under a false name. Childs claimed that once in the motel room Schwartz unexpectedly grabbed Childs' penis through his pants. Childs claimed that this action caused him extreme emotional distress that led him to murder Schwartz. An effective extreme emotional distress defense would reduce the charge against Childs from second degree murder to manslaughter. To corroborate his rendition of the facts and establish his defense, Childs sought to introduce evidence of Schwartz's prior visits to the same motel with other young men for the purpose of having sex. Normally under New York law such evidence is considered presumptively irrelevant. However, the court made a distinction between showing the victim's morality and introducing evidence that has some bearing on the case. In the instant case the evidence was relevant to explain why the victim and defendant were together in the motel room, to corroborate Childs' statement that Schwartz grabbed his penis, to establish Schwartz's state of mind, and to show that Schwartz was not an exclusive heterosexual. Despite admission of this evidence, the jury did not believe Childs' extreme emotional distress defense and convicted him of second degree murder. [Note: Schwartz's murder was the subject of an extensive investigative article in The New Yorker, June 21, 1993.] T.V.L. Federal Litigation Notes Transsexuals have been notably unsuccessful in obtaining protection under laws that forbid discrimination on the basis of sex. The District of Columbia Human Rights Act goes further, however, also banning discrimination on the basis of sexual orientation and personal appearance. Patricia Underwood, a postoperative male-to-female transsexual, filed suit under the D.C. Act after she was discharged by Archer Management Services, Inc., alleging discrimination on all three bases mentioned above. She specifically alleged that she was discharged "because she is a transsexual and retains some masculine traits." The employer moved to dismiss the case for failure to state a claim, arguing that the Act does not forbid discrimination against transsexuals. U.S. District Judge Richey disagreed, at least in part, finding that Underwood's factual allegations arguably stated a claim of discrimination on the basis of personal appearance (i.e., the reference to "masculine traits"). Richey followed well- established Title VII precedent in dismissing that portion of the complaint based on sex discrimination. Interestingly, he also dismissed the portion based on sexual orientation discrimination, finding that none of Underwood's factual allegations raised any issue about her sexual orientation (and implicitly recognizing that sexual orientation and transsexuality are distinct phenomena). 1994 WL 369468 (U.S. Dist. Ct., D.C., July 12). * * * Joanne E. DeGroat, formerly Joseph W. DeGroat, is suing the Air Force in the U.S. District Court, S.D. Ohio, claiming that her discharge for being out of uniform violated her 1st Amendment rights of freedom of expression, together with other claims. (Dayton Daily News, July 22.) DeGroat claims that as part of long-running treatment running up to her planned sex-reassignment surgery, she was encouraged and counselled by Air Force medical staff to dress in female street clothing while off base and off duty. Then a neighbor turned her in to the Air Force for cross- dressing, and her commanding officer ordered her to dress as a male until her separation from the Air Force, and initiated a discharge action against DeGroat on the ground of exhibiting "sexual perversion by attiring himself in female clothing." DeGroat was honorably discharged for substandard duty performance, and subsequently had her surgery. A.S.L. A heterosexual plaintiff who claims that his early wash-out from Marine training was due to a homophobic drill sergeant who incorrectly believed he was gay lost his bid to get his discharge record changed in Farley v. Perry, 1994 WL 413316 (U.S. Dist. Ct., D.C., July 20). Robert Farley claims he enlisted along with a friend with the understanding they would go through basic training together. After enlistment, however, he and his friend received separate assignments. Farley complained to his drill sergeant, who decided he must be gay and proceeded to harass him based on this inference. Farley claims that his acceptance of a discharge less than one month after enlisting was due to this situation. His discharge record shows that he was released based on his performance and conduct, and the narrative for his RE-3F code states "failure to complete recruit training." Farley subsequently petitioned the Board for Correction of Naval Records to change this discharge code, asserting that it was getting in the way of his attempt to gain employment as a police officer. The Board denied his request, and he filed suit in federal court. District Judge Oberdorfer rejected the Defense Department's claim that Farley's suit was time-barred, but, applying the "arbitrary and capricious" standard for administrative review of the board's decision, found that the record provided adequate support for that decision, since Farley essentially conceded that he failed to complete basic training. A.S.L. The U.S. District Court for the Northern District of California has dismissed federal civil rights claims brought by a landlord against a gay couple who were renting some property from him. Goehring v. Wright, 1994 WL 385385 (July 20). According to Edwin Goehring's complaint, Eddy Wright and Rudy Robledo, together with other neighbors and the local police department, conspired to have hate crime charges filed against Goehring based on false allegations that Goehring and his wife had threatened and harassed Wright and Robledo because of their sexual orientation. Goehring was acquitted of the hate crime charges, and subsequently asserted tort claims against Wright, Robledo, other neighbors and the police in state court. Subsequently, Goehring amended his complaint to add federal civil rights claims under 42 U.S.C. secs. 1981 and 1985, and the matter was removed to federal court. Shortly before the scheduled trial date, the defendants moved to dismiss. The action was referred to Magistrate Infante, who found that the federal claims lacked merit on their face and dismissed them. However, Infante found that remaining state law claims for malicious prosecution and defamation should be remanded back to state court for trial. An interesting portion of the decision discusses Goehring's claim that he was being persecuted because, as a German-American, he was perceived as a neo-Nazi by his tenants and neighbors, who had falsely claimed to the police that Goehring and his wife carried loaded guns which they shot in all directions while drunk, shouting abusive epithets and threats. From reading this opinion, it sounds like there was quite a ruckus in Santa Clara County! A.S.L. Oregon Appeals Court Revives Heterosexual's Tort Claims for Anti- Gay Harassment Heterosexuals who are incorrectly perceived to be gay may need protection against homophobes, as the Oregon Court of Appeals realized in reviving various tort claims in Whelan v. Albertson's, Inc., 129 Or. App. 501, 1994 WL 419897 (Aug. 10). Francis Whelan was a security guard employed by American Protective Services who was assigned to work in a store owned by Albertson's. Brian Flemming, the store manager, and Jeffrey Schedin, a non-supervisory employee at the store, perceived that Whelan was gay. They engaged in name-calling, invective and intimidation, including an actual physical assault by Schedin, with some of this misconduct occurring in the presence of store customers and other employees. Whelan told the two men that he was not gay, but they persisted nonetheless. The court's opinion describes the harassment in graphic detail. After many complaints by Whelan, APS assigned him to a different location. Whelan filed suit against Albertson's, Flemming and Schedin, alleging intentional infliction of emotional distress, interference with contractual relations, battery, civil intimidation and negligence. After entering a stipulated judgment for battery and civil intimidation against Schedin, the trial court dismissed the remaining claims against Albertson's and Flemming. Writing for the appeals court, Judge Riggs found that the stream of nasty invective directed against Whelan in public in embarrassing and humiliating circumstances did state a claim against Flemming for intentional infliction of emotional distress as well as intentional interference with contract. However, the court sustained dismissal of the claim that Flemming was negligent in failing to curb Schedin's misbehavior toward Whelan. Riggs also held that Albertson's could be found vicariously liable for Flemming's torts, thus reviving those claims as well, although dismissing a claim that Albertson's was negligent in its supervision of Flemming. This decision can provide a useful precedent, especially in jurisdictions that lack gay rights laws, for seeking damages on behalf of employees subjected to severe anti-gay harassment on the job. [Note: Had Whelan been an employee of Albertson's, rather than the employee of an independent contractor, torts claims based on negligence would probably have been impossible to maintain against Albertson's due to Workers Compensation preemption. In most jurisdictions, however, Worker's Compensation does not preempt intentional tort claims, such as those for which Albertson was found to be potentially liable in this opinion.] A.S.L. Florida Jury Acquits Video Store Clerk on Obscenity Charge Apparently unfazed by explicit gay male sex, a Pinellas County, Florida, jury acquitted a video store clerk from a charge of violating state obscenity laws after viewing "Bait," a 75-minute tape rented by an undercover police detective. The police targeted the Pussy Cat Adult Bookstore and other similar businesses in and around Largo, Florida, in 1990, after the pastor of Faith Community Church inveighed against the business and stimulated about 100 congregants to write letters to the sheriff. Most of the other defendants in the obscenity raids pleaded guilty in exchange for probation and a small fine. But Sheila M. "Gypsy" Craig, the clerk who rented "Bait," and Ronald Evan Clark, another Pussy Cat clerk who rented a heterosexual video, contested their charges and both won acquittals. During the trial, County Judge Karl Grube refused to allow Craig's attorneys to present expert testimony by a psychologist and by a member of the Tampa Bay gay community that "Bait" would not be considered obscene by its target audience, holding that the jury should decide based on the standards of the entire community, not just the gay male community. The prosecuting attorney, pointing to scenes of imprisonment, slavery and domination in the film, argued that it was "patently offensive" in its depiction of sex, but the jury evidently disagreed, responding to defense attorney Frank de la Grana's closing statement: "Gay people exist in your community. They have as much right as heterosexual people to rent adult movies." According to the defense attorneys, quoted in the St. Petersburg Times (Aug. 17), this was the first time in Florida that a gay sex video has been the subject of a trial under the state's obscenity law. A.S.L. Other Obscenity Law Developments Perhaps Michael Schein, a mail order dealer in gay sex videos, should have entrusted his fate to a jury. But Schein waived a jury, placing his fate in the hands of U.S. District Judge John R. Padova (E.D. Penna.), and found himself convicted on five counts of mailing obscene matter in violation of 18 U.S.C. sec. 1461. However, Padova departed downward from sentencing guidelines, giving Schein only 12 months probation. Schein appealed his conviction and the government appealed the sentence. The Third Circuit upheld the conviction but vacated the sentence for reconsideration. U.S. v. Schein, 1994 WL 394083 (July 29). Schein contended that his videos were not obscene under Miller v. California, 413 U.S. 15 (1973), arguing that they served a significant public health service by including messages about safe sex at the beginning of each tape and by showing sexual activity with condoms, and also arguing that by restricting sales to consenting adults, Schein was ensuring that the average person in the community who might find the tapes offensive was shielded. Judge Hutchinson, writing for the court, rejected these arguments: "We agree with Schein that materials which promote public health are not obscene just because they graphically depict human sexual or excretory acts. Nevertheless, this argument also fails. The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole. Considering Schein's videotapes in their totality, we conclude that the district court did not err in deciding they served no serious public purpose. As noted in Miller, `"[a] quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication."' Schein's videotapes are not redeemed because the participants in the homosexual acts he depicts wear condoms and the viewers are reminded, from time to time, to have `safe sex.'" The court also rejected the argument that restricting sales to consenting adults took care of the community standards problem, observing that "it would be impossible for Schein or any other purveyor of obscene materials to provide any real assurance that the persons ordering the obscene materials were all consenting adults who would restrict their viewing to themselves or their families in a private setting." In sending the case back to the district court for resentencing, Hutchinson observed that Judge Padova had failed adequately to explain his downward departure. Padova had stated conclusorily that the guidelines sentence (18-24 months imprisonment) seemed to "overstate the seriousness of the offense committed by the defendant in this case, particularly as he is a first offender. . ." Hutchinson commented that a downward departure required some exceptional mitigating factor, not the opinion of the trial judge that the sentencing commission had been too severe in setting its guideline. Hutchinson noted that Schein, "an avowed homosexual, has tested HIV positive, and he may have a related serious physical complication." Thus, on remand the trial court might find defendant's health to be a mitigating factor in imposing a sentence, but would have to do so explicitly. A.S.L. Reiterating its decisions from earlier this year, the Texas Court of Appeals ruled July 26 in T.K.'s Video, Inc. v. State, 1994 WL 385630, that the trial court had correctly charged the jury in an obscenity case involving gay sex videos that whether the materials appealed to "prurient interest" was to be determined by reference to a reasonable member of the community as a whole, not by the standard of the group targeted by the video. T.K.'s argued that a gay person for whom the video was intended would not find it obscene or offensive. "If we followed T.K.'s argument in a case involving the obscenity of materials portraying adults engaged in sexual intercourse with children," commented Judge Lattimore for the court, "the trial court would be required to instruct the jury that prurient interest would be defined form the viewpoint of the average pedophile." In support of this argument by ridicule, Lattimore cited U.S. v. Guglielmi, 819 F.2d 451 (4th Cir. 1987), where the court held that a trial court in a bestiality case involving allegedly obscene films was not required to ask the jury to find whether there was such a thing as an average zoophile and the appeal of the films to such a person. A.S.L. The U.S. Court of Appeals for the 4th Circuit ruled Aug. 12 that Prince George's County, Maryland, violated constitutional standards by adopting a licensing scheme for adult bookstores (defined as "commercial establishments" at least ten percent of whose inventory consists of media that depicts "sadomasochistic abuse, sexual conduct, or sexual excitement") that might require as long as a 3-1/2 month wait from the time of application until judicial review was completed of a license denial, and which prohibited the bookstore from operating during that period. 11126 Baltimore Boulevard, Inc. v. Prince George's County, Maryland, 1994 WL 420281. Although the court, in an opinion by Circuit Judge Wilkins, was not willing to adopt a bright-line test for what would be an appropriate period of time during which the government could require a prospective bookstore operator to wait while the license procedure was pending, but found, by comparison to other cases in which the question had been faced, that the Prince George's County process was not "sufficiently prompt," thus reversing a decision by the district court. A.S.L. State Litigation Notes The Appellate Court of Illinois upheld a 30 year prison-sentence for a teenager who participated in robbing and beating to death a gay man. People v. Booth, 1994 WL 279943 (1st Dist., June 23). Edward Booth with two of his friends went to Jackson Park bridge with baseball bats on June 27, 1987, "to rob some fags," according to Booth's statement to police. At the time, Booth was a few weeks short of 15 years old. When Mark Davies walked onto the bridge, the youths beat him with their fists and baseball bats, robbed him, dumped him in the lagoon under the bridge, and tried to leave in his car. Booth was later identified by police when he was questioned in connection with another robbery committed by his confederates at a later date. The trial judge ordered him tried as an adult rather than a juvenile, and a jury convicted him of robbery and murder. Booth appealed various rulings of the trial judge, and challenged the sentence as excessive. According to Judge Cahill's opinion for the Appellate Court, the trial court had found that "the murder happened because the defendant believed the victim was of a different sexual orientation than his, the murder was exceptionally brutal and cold-blooded, the defendant armed himself with a dangerous weapon and went to Jackson Park to rob. The court stated, `The youthfulness of the defendant is offset by the total brutality of this crime, and by the intentional engagement in this criminal act. Primarily, because the defendant perceived the defendant had a different sexual persuasion, different sexuality.'" The Appellate Court found the trial court had not abused its discretion by sentencing Booth at the upper range of the statutory guidelines. A.S.L. Sharon Bottoms has asked the Virginia Supreme Court to expedite deciding whether to hear her mother's appeal of the Court of Appeals ruling in Bottoms v. Bottoms, 444 S.E.2d 276 (June 21), in which the court of appeals ordered that Sharon have custody of her 3-year-old son, Tyler Doustou. In papers filed with the court on Aug. 23, Bottoms alleged that her mother had repeatedly violated Sharon's visitation rights under an order issued last year by trial judge Buford M. Parsons, Jr., under which Parsons awarded custody to Kay Bottoms. Although the court of appeals decision overturned Parsons' custody award, its effect was stayed by Kay's prompt filing of an appeal, thus leaving Tyler in her custody pending the high court's decision. The motion filed by Virginia ACLU Legal Director Stephen B. Pershing argues that "the current dreadful state of affairs" can best be remedied by a quick decision by the Virginia Supreme Court either to deny review or to decide the case on an expedited basis. (Richmond Times-Dispatch, Aug. 24.) A.S.L. Mary Adams will get her day in court against her former employer, Hayne, Miller, and Farni, Inc., under an Aug. 16 decision by the Minnesota Court of Appeals, reversing the summary dismissal of her case by a trial judge. 1994 WL 425189. Adams, a lesbian, resigned her job as a broker on June 18, 1990, and file a charge a bit less than a year later with the Minneapolis Civil Rights Commission, alleging harassment on the basis of sex and "affectional preference" and reprisal and constructive discharge, citing both the Minneapolis Civil Rights Ordinance and Title VII. The commission found no probable cause and, having exhausted this administrative remedy, Adams filed suit in state court on March 4, 1993, under the ordinance and the Minnesota Human Rights Act (sex discrimination), as well as appended contract and tort claims. The employer moved to dismiss the entire case, which motion was granted by the trial court, mainly on statute of limitations grounds as to the state claims. On appeal, Judge Norton agreed that the various state law claims were barred by various statutes of limitations, but held that the claim under the Minneapolis ordinance was timely and that the trial court erred in summarily dismissing it. Norton found that Adams' complaint raised issues of fact about a hostile work environment claim that had never been responded to by the employer, due to the trial court's sua sponte summary disposition. A.S.L. On July 14, Judge Frances Allen of the Connecticut Superior Court issued a permanent injunction barring the military from recruiting at the University of Connecticut Law School. Gay and Lesbian Law Students Assoc. v. Board of Trustees, 1994 WL 395669. A preliminary injunction was issued in 1992, see 1992 LGLN 78, prior to implementation of the military's new "don't ask, don't tell" policy. The current decision reviews the prior ruling in light of "don't ask, don't tell," and finds that the new policy discriminates, on its face, against homosexuals and thus violates Connecticut's gay rights law. Ruth Harlow of the American Civil Liberties Union, who represented the Gay and Lesbian Law Students Association, said the ruling was the "first real declaration" that the new military policy is discriminatory. T.V.L. Los Angeles police officers Lance LaPay and Natasha Benavides have filed suit in Los Angeles County Superior Court Aug. 16 against the City of Los Angeles, the Police Department, Chief Willie Williams, seven individual officers and up to one hundred "John Does", alleging physical and verbal harassment on the basis of sexual orientation in violation of state and local law. They alleged that the Police Department has done nothing to implement guidelines for treatment of gays and lesbians on the job that were adopted by the city council as part of the settlement of a lawsuit brought by Sergeant Mitchell Grobeson. At a press conference announcing the suit, Grobeson alleged that in the past year five gay or lesbian police officers had been forced off the job, out of the department or to sick leave status, due to anti- gay harassment. A.S.L. New York Acting Supreme Court Justice Walter Tolub rejected an attempt by a neighborhood association to end an every-Sunday block party sponsored by the gay Big Apple Softball League in front of The Dugout, a bar on Weehawken Street in Greenwich Village. The local community board had approved issuance of a permit to close off part of the street each Sunday from 5 to 9 p.m. during warm weather months for the block party. Tolub held that there was no evidence presented by the neighborhood association that the granting of the permit was arbitrary or capricious, and noted that the Big Apple Softball League "consists of eleven gay softball teams which have a link to the community." The West Village Committee, Inc. v. City of New York, NYLJ, 8/10/94, p. 21 (Sup.Ct., N.Y. County). A.S.L. The Chicago Commission on Human Relations has found probable cause to believe that the Chicago Area Council of Boy Scouts of America is violating the city's human rights ordinance by maintaining a policy against hiring gay people. The Commission ruled on a complaint by G. Keith Richardson, who alleged that he refrained from filing an application when a representative of the organization told him that they do not hire gays, and has ordered a hearing of the charges. The Commission rejected the Scouts' argument of lack of jurisdiction, and that the ordinance violates the constitutional freedom of association. "Civil rights statutes have always been intended to regulate conduct which has been based upon irrational fears, myths, and stereotypes," wrote the Commission. "While the law makes no attempt to compel abandonment of the moral views which embody those fears, it is hoped that enforcement of our laws will ultimately encourage tolerance and acceptance of our divergent views and lifestyles." (Chicago Tribune, Aug. 12.) A.S.L. A jury in Kerrville, Texas, convicted Donald Aldrich of capital murder in the death of Nicolus West, who prosecutors say was targeted by Aldrich for robbery and death because he was gay. Aldrich was sentenced to death after the jury verdict was rendered. (Chicago Tribune, Aug. 10.) A.S.L. A San Francisco, California, Superior Court jury found that the California State Automobile Association did not discriminate against Ron Glasser, a former claims adjuster, on the basis of his sexual orientation. The jury also found against Glasser on claims of breach of contract and violation of public policy. Glasser had claimed that he was "constructively discharged" on the basis of a hostile environment created by anti-gay employees and supervisors. Glasser's attorney, Walter Moore, asserted that Glasser, who has AIDS, would have won had he been able to testify, but he was too ill to do so. The trial judge refused to admit Glasser's diary. (San Francisco Chronicle, Aug. 2.) A.S.L. The Dayton Daily News (July 16) reports that the Ohio 12th District Court of Appeals has thrown out a lawsuit by Mark a/k/a Susan Marie Pollock, an inmate at Warren Correctional Institution near Lebanon, Ohio, who is seeking to be treated as a woman in prison. The warden says Pollock's claim that he is a preoperative transsexual is spurious, and evidently the court agreed. * * * In another case involving transsexuality, a Florida man has filed for an annulment of his marriage, claiming his wife was born a man, according to the St. Petersburg Times (Aug. 20). According to the petition, if the petitioner had known his wife had a sex-reassignment operation in 1970, he never would have married her. She claims she revealed all prior to the marriage. The husband is demanding damages for fraud, and contends that he should have no alimony obligations. The couple has been married ten years. A.S.L. San Diego, California, Superior Court Judge Charles Wickersham refused to order organizers of the Gay Pride parade to allow a heterosexual group to march under the banner of "The Normal People." The judge held that the parade organization was a private group that was free to control the message broadcast by its parade, and also noted that several non-gay groups were allowed to march. Lambda Legal Defense and the ACLU of San Diego represented the parade organizers. (Washington Blade, July 22.) A.S.L. Domestic Partnership & Same-Sex Marriage News A bill that would make California the first state to establish legislatively a domestic partnership registry passed the Senate by just one vote on Aug. 23. The deciding vote was cast by Sen. Leroy Greene of Carmichael, who dragged himself out of bed where he was recuperating from a gall bladder operation. The bill had already passed the Assembly in slightly different form, and must go back for another vote there. There is considerable apprehension that Governor Pete Wilson may veto it to protect his right flank in this fall's election campaign. In addition to establishing a state-wide register, the bill would guarantee registered partners the same status as spouses for purposes of hospital visitation and establishment of conservatorships, and would provide greater legal standing where one partners wills property to another. The bill is not intended to recognize same- sex marriages, extend health benefits to partners, or provide any special legal standing for palimony suits. (San Francisco Chronicle, Aug. 24.) Meanwhile, an unrelated bill that would allow local governments in the state to extend health coverage to domestic partners of their employees is still pending in the Assembly Ways and Means Committee, although possible floor action soon was predicted. (Sam Francisco Chronicle, Aug. 18.) The Iowa City, Iowa, city counsel approved extension of health benefits to domestic partners of gay and lesbian city employees. The Human Rights Committee of the counsel has proposed adoption of a domestic partnership registry. The Seattle, Washington, city council opened up its domestic partnership registry to non-city employees in an Aug. 1 vote. City employees could already register and qualify for domestic partnership benefit coverage. The expanded registry will not confer any benefits on private sector employees, but may give them a vehicle to use in requesting such benefits from their employers. (Seattle Post-Intelligencer, Aug. 2.) Yale University has announced that it will offer health coverage to same-sex domestic partners of graduate and professional students. It had previously extended coverage to partners of lesbian and gay faculty, administrators and managerial staff. (Boston Globe, Aug. 24). * * * But students expecting coverage at the University of Wisconsin-Madison, were disappointed to learn that Physicians Plus Insurance Corp., the provider for the Student Health Insurance Plan, decided against going ahead with the coverage. The problem was a disagreement with the state insurance department over whether the company was required to provide continuation and conversion coverage for partners after a relationship broke up. State Representative Tammy Baldwin charged that the insurer was actually caving in to criticism from state legislators by rescinding its agreement to provide the coverage. (Capital Times, Aug. 5.) * * * A faculty member from Wellesley College reported on the Internet Aug. 4 that Wellesley now has a domestic partnership plan, under which partners of employees are eligible for health and dental benefits, as well as tuition breaks and access to facilities, if they file an affidavit with the college attesting to their partnership status. Also reported on the Internet: Bradford College, in Maine, has extended domestic partnership coverage to faculty and staff as of July 1. The Brattleboro Reformer (Aug. 10) reports that the first round of registration under Vermont's state domestic partnership policy yielded 136 couples, of which 119 were heterosexual and 17 homosexual. The total registration was larger than anticipated for the plan that went into effect Aug. 1. The Japanese American Citizens League voted Aug. 6 to endorse a resolution approving of same-sex marriage. Among the proponents of the resolution was U.S. Rep. Norman Mineta, from California. (San Francisco Chronicle, Aug. 9.) Three lesbian couples were turned away by the County Clerk's office in Green Bay, Wisconsin, when they sought marriage license application forms on Aug. 11. Among them were Georgina and Annette Grinkey, who were seeking to marry to overcome the barrier established by the Wisconsin Supreme Court in its decision in Interest of Angel Lace M., 516 N.W.2d 678 (June 8), denying Annette's petition to adopt Georgina's 8-year old daughter, whom the couple is raising together. (Capital Times, Aug. 13.) On Aug. 20 the New York Times published an extensive feature article on domestic partnership benefits plans, titled "Increasing Number of Firms Offering Insurance Benefits to Unmarried Couples," by Jennifer Steinhauer. The article asserts that "the costs are a fraction of what was anticipated, possibly because the programs are not being inundated with the avalanche of claims that some administrators feared." The article also notes that where heterosexual couples are allowed to participate along with same-sex couples, most of those who sign up are heterosexual couples. NY City Housing Court Judge Peter Wendt has construed NYC Rent and Eviction Regulations governing successorship to a rent controlled apartment by a domestic partner to require evidence of both emotional and financial interdependence. Walber 72nd Street Associations v. Pardo, NYLJ, 8/24/94, p. 22 (NY Civ. Ct., N.Y. Co.). Joseph and Sheila Pardo were rent controlled tenants; after they divorced, Joseph moved out and Sheila eventually invited Paul Davis to move in. Sheila died some years later, and Paul sought to remain in the apartment as a successor. The landlord sued Joseph, who was still carried on its books as a tenant, and Paul in a holdover proceeding, contending that possession of the apartment must be surrendered, since Joseph had not lived there for a long time and the landlord did not recognize Paul as a family member of Sheila. The evidence tended to show that Sheila and Paul were domestic partners in many respects, including emotional interdependence, but there was no evidence of financial interdependence -- no mingling of funds or sharing of financial obligations apart from minor day to day household expenses that, Judge Wendt asserted, any roommates might share. "Their finances and personal assets were kept entirely apart," Wendt found. "Indeed, their property has been so separated that this Court does not find credible Mr. Davis' assertion that they treated each other as life partners, or family. Although they were dear friends, their living arrangement appears to have been that of two separate individuals living together as roommates, not as a two person `family.'" There is no mention in the opinion as to whether Sheila and Paul had filed a domestic partnership certificate with the city, or whether evidence of such a certificate would have overcome the lack of evidence of financial interdependence. A.S.L. Legislative News The Charlottesville, Virginia, City Council voted unanimously July 18 to add "sexual orientation" to a city code provision that bans discrimination in city employment and awarding of city contracts. Council members rejected a proposal by the Rutherford Institute, a conservative religious liberty organization headquartered in the city that has supported lawsuits against gay rights laws and filed an amicus brief in support of the Georgia sodomy law in Bowers v. Hardwick, to provide an exemption in the contracting provision for "those people who hold a sincere religious belief that homosexuality is a sin." (Richmond Times- Dispatch, July 19). A.S.L. Initiative & Referendum Notes The Oberlin, Ohio, city council voted Aug. 15 to place a proposition on the ballot in November to ban anti-gay discrimination by the city by charter amendment. Since a charter amendment requires a public ballot, such a ban, if enacted, could not be repealed except by further charter amendment, and would thus be more permanent than a council-enacted ordinance. Eugene, Oregon, City Attorney Bill Gary ruled Aug. 5 that a proposed initiative that would ban the city from enacting or enforcing any policy that would protect people from discrimination based on their sexual behavior was invalid under the single subject requirement. Proponents of the initiative were responding to the passage June 20 of a non-discrimination ordinance and a vote by the Eugene Water & Electric Board authorizing its staff to begin the steps necessary to set up a domestic partnership benefit program for employees. A.S.L. Law & Society Notes Numbers, numbers, numbers! A new study presented to the annual meeting of the American Statistical Association held in Toronto in August found that more than 18% of men and more than 17% of women said they had either had sex with someone of the same sex or had felt attracted to someone of the same sex -- or both. The study derived from a Lou Harris Associates Poll of 6,000 people between the ages of 16 and 50 in the U.S., Britain and France; data were analyzed by researchers from the Harvard School of Public Health and the Center for Health Policy Studies in Washington, D.C. In the U.S., 4.1% of men and 2.3% of women reported exclusively homosexual sex, while an additional 3.6% of men and 2.9% of women said they had sex with someone of their own sex "rarely" and an additional 1.9% of men and 1.2% of women reported having such contact "fairly often." Oh yes, the researchers found that homosexuality is more prevalent in the U.S. than in the other two countries, with the smallest percentage reported in Britain, although the numbers are relatively close as between the three countries. Whatever became of 1%? (See USA Today, Aug. 17; Buffalo News, Aug. 22.) * * * Professor Lee Badgett, University of Maryland School of Public Affairs, has completed a study showing that lesbian and gay workers earn less than heterosexual workers with similar credentials employed in the similar jobs. Using data culled from the General Social Survey, a national random sample database collected by the University of Chicago that is widely used by social scientists in their research projects, Badgett used methods that had been developed in the study of race and sex discrimination to document pay disparities. Her results will be published in the Industrial and Labor Relations Review, a peer- reviewed social science journal published by Cornell University, under the title Economic Evidence of Sexual Orientation Discrimination. In reporting on Badgett's research, the mainstream media characterized it as a refutation of the common assertion that gays are wealthier than the general population and thus need no protection from employment discrimination. However, at least one critic has raised the charge that the population sample Badgett used was too small to be statistically significant. Many school districts around the country that provide gay- affirmative counseling for students or involve discussion of gay issues in their curricula could be cut off from federal education funds under an amendment to the Elementary and Secondary School Act appropriations bill now pending in Congress. Different versions of the amendment, passed in both the House and the Senate, would cut off federal money for any school district that encouraged or supported homosexuality "as a positive lifestyle alternative" or that referred students to pro-gay organizations for counseling or other programs. Pro-gay forces hope to secure substitution in the conference committee of an amendment that would forbid districts to use any federal money to promote sexual activity by students, whether homosexual or heterosexual. The 9th Circuit Court of Appeals has become the first federal appeals court to adopt a formal non-discrimination policy covering all the courts (trial and appellate) within its circuit. (San Francisco Chronicle, Aug. 20.) The judges of the circuit court approved a resolution by secret ballot during their annual conference on Aug. 18, barring any behavior "that can be reasonably interpreted as manifesting prejudice or bias toward another on the basis of gender, race, ethnicity or national origin, citizenship, pregnancy, religion, disability, age, or sexual orientation." According to a news report, the resolution covers not only behavior in the courtroom but also during settlement conferences, negotiations or other meetings arising from federal cases in the 9th Circuit. The resolution was proposed by a group of attorneys from San Francisco, and was a follow-up to a report by the court last year about sex discrimination. The New York Code of Professional Responsibility for Lawyers has been amended to add "sexual orientation" to the disciplinary rule forbidding discrimination by lawyers in the practice of law. In a notice published in the New York Law Journal on Aug. 3 (p. 13), the presiding justices of the Appellate Division of the New York Supreme Court announced that this amendment of 22 N.Y.C.R.R. sec. 1200.3 ("Misconduct") would be effective immediately. The non- discrimination rule covers employment practices of lawyers. Adjudication of a violation of one of the many local non- discrimination ordinances in New York State covering sexual orientation will be considered "prima facie evidence" of an ethical violation. The Missouri State House of Representatives may get its first openly-gay member this fall. Tim Van Zandt won a 3-way race in the Democratic primary for the 38th District, and as of this writing faces no serious opposition in the general election. His district is in Kansas City. Outrage was the order of the day among gay activists in Utah when District Judge David Young sentenced David Nelson Thacker to no more than six years in prison on a manslaughter plea for killing Douglas Koehler. According to an Associated Press story that ran in major newspapers Aug. 17, Koehler had gone home with Thacker from a bar. Thacker claimed that he passed out from alcohol and cocaine use, then woke up to find Koehler groping him. He threw Koehler out of his home, then got his gun, tracked him down and shot him in the head 45 minutes later in a parking lot. Prosecutors let Thacker plead to a manslaughter charge, even though Thacker had stated that he shot Koehler because Koehler was gay. * * * By contrast, four Houston, Texas, teenagers have been charged with capital murder in the July 30 death of Michael J. Burzinski. The four allegedly went to the gay-oriented Montrose neighborhood to try to find a wealthy gay man to rob. They intercepted Burzinski in the parking lot of a gay bar, beat him until he agreed to withdraw cash from an ATM for them; then murdered him to avoid being identified. The alleged ringleader, DeMarco Markeith McCullum, age 19, told investigators that he felt "like a judge" when he shot Burzinski in the back of the head, execution-style. (Houston Post, Aug. 17.) The Cobb County, Georgia, Board of Commissioners' refusal to back down from a previously enacted anti-gay resolution has prompted the Atlanta Committee for the Olympic Games to move the preliminary volleyball competition for the 1996 games to the University of Georgia Coliseum in Athens, Georgia. The Committee was responding to a world-wide lobbying campaign mounted by gay activists, who threatened a massive demonstration during the Olympics if the volleyball prelims were held in Cobb County as scheduled. (New York Times, July 30). Hearings were held by the Senate Labor Committee July 29 on the Employment Non-Discrimination Act of 1994, which would authorize disparate treatment claims on the basis of sexual orientation against employers who are covered by Title VII of the Civil Rights Act of 1964, while barring all disparate impact claims, quotas, or preferences. The bill has picked up several sponsors in each house since our last report. The hearings received generally supportive coverage in many of the large urban daily newspapers. * * * The U.S. Departments of Labor and Energy have issued policy statements banning sexual orientation discrimination in employment. The policy statements are to be enforced by the Office of Equal Opportunity in each department. Is the Pentagon planning to test the waters on coercing schools to drop their non-discrimination policies by threatening to withhold research funds? The Buffalo News reported July 28 that DoD held up a large research grant to the State University of New York (SUNY) at Buffalo because the SUNY system will no longer allow military recruiters use of placement office facilities, as a result of a decision not to appeal a court ruling from last year that held such an exclusion is required by Gov. Cuomo's Executive Order 28. U.S. Rep. Gerald Solomon, who represents the Buffalo area, has begun tacking on amendments to various appropriations bills, mandating a cut-off of federal funds from schools that bar military recruiters. One of his amendments will likely be enacted as part of the pending Defense appropriations bill for the next federal fiscal year. Hardball time? A.S.L. Bishops of the Episcopal Church, meeting in national assembly, have issued a document reaffirming the church's position that heterosexual marriage is the standard for sexual relationships, but recognizing that a significant minority of people are homosexuals and that the church must "respond pastorally" to them. The document, labelled a "study document" rather than a "pastoral teaching," is the subject of considerable controversy within the church, some claiming it goes to far in allowing for homosexual relations, others that it is unduly timid in insisting on the primacy of "lifelong, monogamous heterosexual unions." International Notes Although an international court has ruled that the felony sodomy law in Tasmania, one of the states of Australia, violates international human rights laws, the Tasmanian government has rejected any proposal to repeal the law. On Aug. 22, Australian Prime Minister Paul Keating announced that the national government will pass legislation to override the Tasmanian law. Tasmanian Attorney General Ron Cornish told a radio interviewer that he would attempt to challenge any such federal law in the High Court, on grounds that criminal laws are a within state jurisdiction rather than federal jurisdiction. In 1983, the High Court ruled that the federal government could intervene in state affairs to enforce Australia's international treaty commitments. (Philadelphia Inquirer, Aug. 24.) Continued persecution of gays in Romania continued to attract international attention. The nation's highest court upheld the validity of the "reformed" sodomy law, holding that private consensual sodomy could be prosecuted if it caused a "public scandal," a condition not defined in the law. And Bucharest police broke up a gay arts festival under a law that bans the presentation of homosexuality in a positive light. (Washington Blade, July 29.) The Swiss Federated Railways announced in August that it will sell reduced-fair passes to gay and lesbian couples who live together on the same basis as married couples. A.S.L. Professional Notes A new attempt is being made to start a New Jersey Lesbian and Gay Lawyers Association. For more information, contact Ted Bohn, Esq., at 908-793-0580 (P.O. Box 580, Seaside Park, N.J. 08752- 0580). Lambda Legal Defense & Education Fund has announced the appointment of Barry C. Taylor as AIDS Project Staff Attorney in its midwestern office in Chicago. Taylor was previously a litigation associate at Peterson & Ross in Chicago. AIDS AND RELATED LEGAL NEWS BRIEFS Appellate Courts Divided on AIDS-Phobia Liability Under California law, the mother of a 3-year-old pricked by a negligently discarded needle at a university hospital may not recover damages for fearing that her child might develop HIV-infection without corroborating medical opinions that it was more likely than not that the child would contract the virus. In Herbert v. Regents of the U. of Ca., 31 Cal.Rptr.2d 709 (Cal. Ct. App. (2d Dist.), Aug. 6), the plaintiff found her son holding needles in his hand at a university medical center which had been used the day before as an HIV clinic. Plaintiff discarded the needles and they were not recovered. A physician at the clinic assured the mother that her son's risk of contracting HIV infection was one half of one percent. The court held that the very low likelihood of HIV infection was sufficient to grant the university's motion for summary judgment. Associate Justice Vogel applied the standard used to permit plaintiffs to recover damages for fear of cancer based on toxic exposure resulting from a defendant's negligence. Thus, plaintiff had to prove that it was more likely than not that her son would develop HIV infection, and that this risk was corroborated by medical opinion. The court noted that the policy reasons underlying the threshold of proof required in fear of cancer cases (i.e. the pervasiveness of public exposure to carcinogens, the fear of excessive liability in the health care industry, the subsequent reductions in recovery for those who actually develop cancer, and the general desirability and predictability of a definite threshold), were a fortiori] applicable to plaintiff's fear of HIV claims. Plaintiff asserted that but for the incident, she would not have reason to fear her son's potential for HIV infection. However, the court regarded this argument as "specious," given "the devastating effects of AIDS and the widespread fear of contamination at home, work, school, healthcare facilities and elsewhere." However, a railroad employee pricked by a needle through his employer's negligence need not prove actual exposure to HIV in order to bring a claim under federal law for the infliction of emotional distress, given the presence of physical injury. In Marchica v. Long Island R.R. Co., 1994 WL 401512 (July 29), the 2nd Circuit Court of Appeals found that a claim for emotional distress damages under the Federal Employers' Liability Act (FELA) required proof of actual exposure to HIV only as a substitute guarantee of the legitimacy of plaintiff's claim where no injury was present. Where physical injury is shown, Judge Cardamone wrote, plaintiff's fear of contracting HIV is rendered legitimate under the common law tort principles governing FELA's application. FELA's broad remedial scope thus permitted recovery by a plaintiff who suffered a physical impact as a result of an employer's negligence occurring "under circumstances that would cause a reasonable person to develop a fear of AIDS." Over the railroad's objection that plaintiff hadn't exercised "due diligence" in finding out about the disease and that plaintiff's fear was thus based on ignorance, the court found that plaintiff's medical professionals had all advised him of the dangers of HIV infection resulting from needle punctures and that the jury was therefore entitled to find that plaintiff's fear of HIV was justified. The jury was also permitted to award plaintiff future emotional damages, despite the plaintiff's continuously negative HIV test results, due to the persistence of post traumatic stress disorder. However, such may not be the case under New York law. In Kaufman v. Physical Measurements, Inc., 1994 WL 410094 (Aug. 4), the New York Appellate Division (3d Dept.) found that a postal employee pricked by a negligently packaged needle could not recover for his fear of developing HIV. The needle had been found not to be infected with the virus and plaintiff repeatedly tested negative for HIV. Such a scenario, Justice Weiss noted, lacked "evidence sufficient to guarantee the genuineness of the claim" for emotional distress and, absent proof of some likelihood of contracting HIV infection, rendered recovery for the emotional distress "overly speculative and remote". R.B. We have learned somewhat belatedly that the California Supreme Court vacated the decision in Kerins v. Hartley, 21 Cal. Rptr. 2d 621, and remanded the case to the 2nd District Court of Appeal, for reconsideration in light of the court's 1993 decision in Potter v. Firestone Tire & Rubber Co., 863 P.2d 795. (See 868 P.2d 906 [Feb. 24, 1994]). In Kerins, the court of appeal upheld claims of battery and infliction of emotional distress by a former patient of a surgeon who died from AIDS, not having disclosed to his patients prior to surgery that he was HIV+. In Potter, a "fear of cancer" case brought by neighbors of a polluting industrial plant, the state supreme court adopted a standard for evaluating such claims: "In the absence of a present physical injury or illness, damages for fear of cancer may be recovered only if the plaintiff pleads and proves" that (1) there was an exposure to a carcinogen due to the defendant's negligent breach of a duty owed to the plaintiff, and (2) the plaintiff's fear of cancer stems from knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop cancer in the future due to the toxic exposure. The court of appeal will have to reconsider the Kerins complaint under this new standard. A.S.L. Insurance Companies Win Disputes on HIV as Pre-Existing Condition; Other Insurance Litigation As Washington and the nation continue to debate health care reform, insurance companies have won two victories regarding HIV status as a pre-existing condition when applying for health care coverage. In Espinosa v. Guardian Life Insurance, 1994 WL 370123 (U.S. Dist. Ct., D. Mass., July 7), the plaintiff sought a preliminary injunction to force Guardian Life Insurance to pay benefits for health care he had received under an employee benefits plan. As a full-time employee of a restaurant, he filled out an application in 1992 for health coverage and was approved by the restaurant's provider, Guardian Life. Five years earlier, in 1987, he had tested positive for HIV, but he failed to disclose this on the insurance application form. Although his doctor stated he was in excellent health since testing positive, Espinosa had gone for regular check-ups to monitor his health due to his HIV status. Not all of his doctor visits were reported on the form. On December 30, 1992, Guardian informed Espinosa that it was denying a pending benefits claim and canceling his coverage because he failed to disclose his HIV status and related doctor visits. In denying Espinosa's motion for a preliminary injunction, District Judge Lindsay noted that under the Employment Retirement Income Security Act ("ERISA"), a fraudulent misrepresentation by the applicant in an insurance application is grounds for recision of the insurance policy. Espinosa claimed that Guardian simply did not ask the right questions on its form, and that he did not feel that the application required that he disclose his HIV status, as it is not an illness in itself. The court disagreed, noting that Espinosa signed a statement that his answers were "full, complete, and true." The court found that by failing to disclose the nature of the physical check-ups he was receiving, of which the form clearly inquired, he had not demonstrated that his statements were complete. The court conceded that had Guardian known of Espinosa's HIV status, it would have denied his application. However, as Guardian sent follow-up questionnaires requesting more complete answers, the court found that Espinosa knew exactly what Guardian was looking for, and was deliberately vague to prevent Guardian from discovering the truth. Thus the court concluded that Guardian had grounds for canceling the policy, and Espinosa's motion for a preliminary injunction was denied, as he had failed to demonstrate that he had a likelihood of prevailing on the merits at trial. The Ninth Circuit Court of Appeals reached a similar decision regarding HIV as a pre-existing condition. In Sapp v. Paul Revere Life Insurance Company, 1994 WL 259328 (June 13) (not officially published), Paul Revere refused to pay benefits for claims made regarding total disability due to AIDS, as the plaintiff knew that he was HIV positive when he applied for the policy. Misrepresentation was not at issue in the case. The court found that the section of California Insurance Code in dispute, sec. 10350.2, requiring policies to contain an incontestability clause, was not intended to cover known losses, as urged by the plaintiff. The court stated that it would be absurd for insurers to cover known losses, as by definition, insurance is intended to cover the risk of loss. The court concluded that the plaintiff sought coverage of a known loss, as he knew that he had tested positive for HIV when he applied for disability insurance. It noted that the district court had ruled that AIDS was a manifestation of HIV, and the plaintiff's knowledge of his HIV status constituted knowledge of the event for which he sought benefits, i.e., total disability resulting from AIDS. Finding the language of the policy clearly specified that it did not cover pre-existing conditions which manifest themselves prior to the date of issue, the court affirmed defendant's motion for summary judgment. P.T. The U.S. District Court, Southern District of Ohio, has rejected a Justice Department interpretation of Title III of the Americans With Disabilities Act and ruled that an insurance company is not an entity covered by Title III with respect to its practices governing the sale of insurance. Pappas v. Bethesda Hospital Association and Benefit Services Agency, Inc., 1994 WL 374785, 3 A.D. Cases (BNA) 590 (June 29). Plaintiff Pappas, an employee of Bethesda Hospital, applied for family coverage for her husband and son to Benefit Services Agency (BSA), Bethesda's group insurance provider. Her application was denied because both her husband and son have serious disabilities. She sued both the employer and the insurance company under ADA Titles I (employment) and III (public accommodations). Both defendants moved to dismiss for failure to state a claim. District Judge George C. Smith held that the Title I claim must be dismissed with respect to BSA, finding that the insurance company that provides group coverage through an employer does not thereby become itself an employer of the employees. As to Title III, Smith held that Congress did not intend the ADA to apply to insurance companies in their sales of insurance policies. While conceding, for example, that a member of the public could complain under Title III if BSA was carrying on business in a building that was not wheelchair accessible, Smith argued that Congress's concern in Title III was to make places where business is carried on accessible to persons with disabilities, and that Pappas' claim did not relate to accessibility. Similarly, while the hospital-employer is a public accommodation within the meaning of Title III, Smith held that its employee benefits policies were properly considered only under Title I. A.S.L. Illinois Appeals Court Upholds Testing of Inmate Who Bit Guard A divided panel of the Appellate Court of Illinois, 4th District, affirmed a trial court's order to the Illinois Department of Corrections to have an inmate tested for HIV and the results shared with the plaintiff, a prison guard whom the inmate bit. Doe v. Burgos, 1994 WL 409187 (Aug. 5). The Jane Doe plaintiff has tested negative for HIV since the biting incident on Feb. 19, 1989, but claimed that her repeated requests that inmate Violetta Burgos be tested had been ignored by prison officials. Finally, just days before Doe filed suit, Burgos submitted to a test and came out negative. Burgos's test result was appended to her answer to the complaint. But Doe's doctor complained that the test was insufficient due to questions about chain of custody of the blood sample. The district court ordered Burgos to submit to a second test. She was willing, but the Corrections Department appealed the ordered and obtained a stay, arguing that it was inappropriate for the court to intervene at this point. The medical director of Corrections testified that "95% of persons test positive for HIV antibodies within six months of transmission. In the director's opinion, an HIV test should not be conducted on inmate Burgos because (1) Doe has tested negative, (2) if Burgos now tested positive that might indicate Burgos had contracted the virus since the bites, (3) the potential for transmission of HIV infection through a bite is remote, and (4) Burgos did not seem to be at high risk for HIV infection." These arguments did not persuade the court. Wrote Judge Cook, "It is difficult to understand, however, why Doe should be forced to ignore even a small possibility that she might be at risk, especially in view of the fact that these blood tests are so routine and unobtrusive. Although a positive test for Burgos will not conclusively establish that Doe is at risk, a negative test for Burgos will provide substantial reassurance for Doe." Cook found that the trial court heard evidence raising concerns about the validity of Burgos' first test, and thus had not abused its discretion in ordering a second test. In concurring and dissenting opinions, the other judges on the panel argued over whether ordering the test was an appropriate interference in prison administration by the court. A.S.L. Federal Court Rules ADA Prohibits AIDS-Based Discrimination In a real-life version of the film Philadelphia, an HIV-positive attorney alleges his firm terminated his employment because he has AIDS. Doe v. Kohn, Nast & Graf, 1994 WL 416269 (E.D.Pa. Aug. 4). Doe (a pseudonym) alleged a violation of the Americans With Disabilities Act (ADA), ERISA, the Pennsylvania Human Relations Act, and Pennsylvania wage laws. Doe also alleged breach of contract, breach of covenant of good faith and fair dealing, invasion of privacy, defamation, civil conspiracy, and intentional infliction of emotional distress, claiming both actual and punitive damages. The firm moved for summary judgment, arguing among other things that HIV infection is not a disability covered by the ADA. The court denied the employer's motion on all counts except emotional distress, oral contract, and the wage law claim; regarding the ADA, the court ruled that symptomatic HIV infection is a protected disability. Doe began working for defendant in 1991. His supervisor often praised his work and the firm awarded him a larger-than-expected bonus. In November, 1992, Doe's secretary, while processing incoming mail, opened a letter from Johns Hopkins Division of Infectious Diseases; the letter indirectly intimated that Doe had AIDS. Doe asserts that within days his supervisor stopped assigning him work, stopped speaking with him, and avoided physical contact. In January, 1993, the firm decided not to give Doe a pay raise. Doe's supervisor told him that his written work did not meet expectations and that his contract would not be renewed for 1994. The supervisor memorialized the conversation in a memo for the firm's files, which also contained a copy of the letter indicating Doe had AIDS. In March, 1993, Doe hired a lawyer and sent a box of documents from the office to support his claim against the firm. A principal member of the firm threatened to "blackball" Doe if he sued. Within days, Doe found the contents of his office boxed up and the office locks changed. Doe sued the firm and his supervisor in August 1993. Doe claimed that the stated reasons for his termination were pretextual and that the real reasons were his disability (AIDS) and retaliation for his efforts to file a claim. District Judge Gawthrop found sufficient evidence to allow the retaliation claim to proceed on a mixed motives theory. Applying the analysis of Title VII cases, the court found that the plaintiff had made out the elements of a prima facie case: (1) protected activity or status, (2) contemporaneous or subsequent discharge, and (3) a causal link between the two. The court noted that a retaliation plaintiff may establish protected activity based on a threat to sue, or consulting an attorney. In a mixed motives case, the plaintiff meets the causal burden by showing conduct or statements by a decisionmaker that directly reflect discriminatory animus or at least a discriminatory attitude. The court found the evidence sufficient to bring the claim before a jury. Applying the same analysis to ADA coverage, the court turned to the question of whether the plaintiff had a disability that would bring him within the scope of ADA, i.e., "a physical or mental impairment that substantially limits one or more of the major life activities" or a record or perception of such an impairment. Finding no express guidance on whether this definition includes HIV, the court looked to interpretive guidelines from the Department of Labor. Translating the regulations with the help of a medical dictionary, the court observed that they protected as disabled persons whom a lay observer would not consider to have a disability -- for example, persons with high blood pressure. The court ruled that plaintiff's fever and skin rashes, and HIV itself, created physical impairments within the meaning of the regulations. The court then noted that the impairment must limit a major life activity, but not necessarily a work-related activity, and that the list of such activities in the regulations was intended to be illustrative rather than exclusive. The court cited Cain v. Hyatt, 734 F.Supp. 671 (E.D.Pa. 1990) (another case involving AIDS discrimination in law firm employment) for the proposition that procreation is a major life activity limited by HIV. Oddly, the court found that Doe did not have a record of impairment. Distinguishing the case from School Board of Nassau County v. Arline, 480 U.S. 273 (1987) (teacher with recurrent TB had a protected disability), the court observed that Doe's diagnosis was only about a year old, unlike the thirty-year history in Arline. The court decided that Doe's impairment lacked sufficient duration to constitute a record of impairment. The court did not give a reason why a record must be long in order to constitute a statutory "record." Also surprising is the opinion's lack of reference to Chalk v. U.S. District Court, 840 F.2d 701 (9th Cir. 1988). Ruling on a preliminary injunction, the court in Chalk decided provisionally that AIDS is a handicap protected by the Rehabilitation Act. Because the ADA definition of disability follows the Rehabilitation Act, Chalk lends further support to the court's decision in Doe. The court ruled that the evidence of perceived disability discrimination was sufficient to bring that claim to the jury. As to ERISA, the court found sufficient evidence to raise a jury question of whether the firm terminated Doe's employment at least partly to deprive him of benefits under the firm's disability plan, in violation of sec. 510. On the remaining state law claims, the court held that analysis under the Pennsylvania Human Relations Act is the same as Title VII analysis, and thus leads to the same result as the ADA. The court upheld the breach of contract claim to the extent that it relied on Doe's written contract, but cited the parol evidence rule in dismissing claims based on implied oral promises (including the wage law claim, which had sought compensation for unused paid vacation time). The court similarly upheld the claim for breach of covenant of good faith and fair dealing. The court ruled that the evidence established jury questions on the claims for invasion of privacy, defamation, and civil conspiracy. The court dismissed Doe's claim for intentional infliction of emotional distress, ruling that such a claim required truly outrageous conduct, not merely mean-spirited conduct with an improper motive. Lastly, the court allowed Doe to proceed on his claims for punitive damages under all surviving theories except the breach of contract claim, ruling that the ADA, the PHRA, and common law claims (other than contracts) all allow punitive damages. O.R.D. Other HIV Discrimination Litigation Notes In an unofficially reported decision, United States v. Morvant, 1994 WL 419873 (U.S. Dist. Ct., E.D. La., July 28), District Judge Lemelle set conditions for discovery from patients of a doctor accused of refusing to treat people with HIV/AIDS for medical conditions unrelated to AIDS. As described by the court, the "central issue" in the case "is whether or not a health care provider's policy/practice of referring potential or actual patients who are perceived by the referring provider to have an ADA-defined disability to other health care providers for medical treatment of a condition unrelated to the perceived disability is violative of the ADA." The government is apparently proceeding on the complaints of two patients, Pena and Hodgkinson, and encountered resistance from the defendant-doctor to discovery of former or present patients concerning the doctor's referral practices. Lemelle ordered Morvant to provide the plaintiff with the identities, addresses, and phone numbers of "approximately ten of Dr. Morvant's patients who are claimed by plaintiff to be similarly situated with Pena and Hodgkinson herein provided this disclosure shall be shared with counsel of record and experts in/for this litigation only." Lemelle also ordered that during discovery witnesses could be questioned about their HIV status or "particular lifestyle, e.g. sexual orientation, etc." as pertinent to uncovering bias, but that upon the request of any witness, "the witness's medical history or personal lifestyle shall be sealed from public access." Lemelle suggests in his opinion that the parties submit summary judgment motions to dispose of the legal issues rather than stretching out discovery unduly. HIV-Related Benefits Litigation Notes In Anderson v. Shalala, 1994 WL 413301 (10th Cir., Aug. 1), the court held per curiam that an HIV+ person whose appeal of a denial of social security disability benefits was pending in federal court when new regulations were issued, is entitled to have his benefits claim reconsidered under the new regulations. Anderson had exhausted administrative appeals and filed in federal district court, where his case was pending on July 2, 1993, when new regulations were issued. In a letter to another federal court in a pending case challenging the standards under which HHS was deciding HIV benefits claims, Secretary Shalala had asserted that the new regulations would apply to all pending cases. The 10th Circuit decided to take her at her word, and reversed the trial court's dismissal of the appeal, but ordered its decision withheld from official publication and stated, in a footnote, that this decision "is not binding precedent." A.S.L. In Gonzales v. Garner Food Services, Inc., 1994 WL 259676, 3 A.D. Cases (BNA) 558 (U.S.Dist.Ct., N.D.Ga. March 17), the court ruled that Title I of the Americans With Disabilities Act, prohibiting discrimination in employee benefits against qualified persons with disabilities, could not be used by the estate of Timothy Bourgeois to challenge the denial of AIDS-related benefits that occurred after the effective date of the act, where the denial of benefits was based on a benefits cap that the employer adopted prior to the effective date of the act. The reason for District Judge Forrester's decision to dismiss this portion of the complaint was that at the time ADA went into effect in July 1992, Bourgeois, who had been discharged in 1990 and had continued to participate in the company's benefit plan as a former employee under COBRA (29 U.S.C. sec. 1161), was no longer a current employee or job applicant. Forrester found that ADA Title I was not intended to prohibit discrimination against former employees, and the mere fact that in another count of the complaint Bourgeois was challenging his discharge as violative of ERISA did not render him an "employee" or "applicant" within the meaning of ADA. Although the motion to dismiss the ADA count was granted, Bourgeois's claim that the company fired him in violation of sec. 510 of ERISA because he had filed AIDS-related claims will continue to be litigated by his estate, which is seeking damages for wrongful discharge and restoration of benefits. The estate has assumed medical debts of over $90,000 that had accumulated by the time of Bourgeois's death, which occurred just days after he filed his charges with the EEOC. Rosetti v. Shalala, a class action suit challenging denial of social security disability benefits to a class of HIV+ plaintiffs, was settled July 5 on the basis that all class members can have their claims reconsidered based on new criteria that take into account the way HIV manifests itself in women, children, minorities, poor people and IV drug users. Philadelphia Daily News, July 6. Unfortunately, lead plaintiff Peter Rosetti, Jr., a Philadelphia electrician, died in May. The settlement applies to all HIV-infected persons denied benefits in the two year period before the new policy went into effect in July 1993, in states within the jurisdiction of the 3rd Circuit. A.S.L. HIV Transmission Litigation Notes The U.S. Court of Appeals for the 4th Circuit, in a per curiam ruling issued Aug. 18., affirmed a dismissal and grant of summary judgment in Domingos v. U.S., 1994 WL 445700, a transfusion AIDS negligence and malpractice case against U.S. Army physicians who performed surgery on Frank Domingos in an army hospital in 1984. Domingos died from AIDS in 1989 and his estate sued. Several of the claims were dismissed on jurisdictional grounds, but the court granted summary judgment on the merits in the count alleging negligent screening of blood for HIV, holding as a matter of law that "no clinical test for detecting HIV in blood existed in 1984 when Mr. Domingos allegedly acquired the virus through a blood transfusion." Indeed, the plaintiff's own experts testified that "they had no opinion whether the army hospitals were otherwise negligent in screening potential blood donors or in giving Mr. Domingos blood transfusions." A.S.L. The Arkansas Court of Appeals ruled June 29 that an employer is chargeable under the state's Workers Compensation Law with the cost of testing for bloodborne infections (including HIV/AIDS) when an employee is potentially exposed to infection. Arkansas Dept. of Correction v. Holybee, 878 S.W.2d 420. William Holybee, an employee of the Corrections Department, was bitten by an inmate known to be HIV+. Holybee's treating physician advised testing for hepatitis, tetanus, HIV, AIDS and AIDS-related complex, and that the Corrections Department be charged for these tests and other prophylactic treatment. The Department claimed its only liability should be for cleaning and bandaging the wound, contending that none of the tests and prophylactic treatments were "reasonably necessary for treatment of the claimant's compensable injury." A Worker's Compensation judge disagreed, finding the procedures reasonably necessary, and the employer appealed. The court followed the holding in Jackson Township Volunteer Fire Co. v. Workmen's Compensation Appeal Board, 594 A.2d 826 (Pa. Commw. Ct., 1991), where it was held that a fire department had to cover costs of HIV and hepatitis B testing for a fireman who was splashed with the blood of a victim of an auto accident who was found to have AIDS and be actively infected with hepatitis. In that case, it was held that part of the compensable injury was "risk of infection." The Arkansas court agreed with this approach, and affirmed the Workers Compensation judge. A.S.L. The New York Appellate Division, First Department, upheld a requirement in a New York City homeless shelter that all shelter residents take a blood test for tuberculosis. Holder v. Harlem Men's Shelter, 613 N.Y.S.2d 899 (June 28). "As to the tuberculosis test," said the per curiam decision, "defendant demonstrated that it was necessary at this particular shelter, though not at all shelters, because plans were under way to use part of this shelter to house persons especially vulnerable to tuberculosis infection, including persons infected with HIV." Thus, the court found that imposing the test requirement was an appropriate exercise of discretion by the city agency that runs the shelter. A.S.L. The Texas Court of Appeals ruled Aug. 18 that a nursing assistant who acquired HIV infection as a result of being splashed by blood while treating an HIV-infected patient had no cause of action against the patient's treating physician. On the other hand, the court rejected the hospital's motion to dismiss on limitations grounds, holding that the time to for the plaintiff to file a negligence suit against the hospital began to run when the plaintiff learned his HIV status, not the date of the accident. Casarez v. NME Hospitals, Inc., 1994 WL 447762. In this case, the doctor had informed the hospital and all health care workers who would be treating the patient, including the plaintiff, that the patient had AIDS. The blood-splashing incident occurred in 1989. Writing for the court of appeals, Judge Larsen agreed with the trial court that by that date, a doctor could assume he had fulfilled any duty of care to other health care workers dealing with his patient by informing them of the patient's HIV status, since by 1989 the risks of HIV infection in a health care setting were reasonably well understood and guidelines were in place for blood precautions. The hospital had moved to dismiss solely on limitations grounds, arguing that plaintiff filed suit more than two years after the incident occurred. The hospital contended that as a trained nursing assistant, plaintiff would reasonably know as soon as he was splashed with blood from an HIV+ patient that he might have acquired HIV, and thus his cause of action accrued. The court disagreed, finding that because plaintiff could not be sure he was infected until he tested positive, and the window period during which an infected person might test negative could last from weeks to a year or more, it would be bad policy to begin the limitations period upon the accident, since it would encourage filing of speculation suits based merely on fear of having acquired infection. One judge dissented from this part of the opinion, agreeing with the hospital that plaintiff was on notice of his claim immediately upon the accident. A.S.L. Arizona Court of Appeals Vacates Long Sentence for Prisoner With HIV Infection The Arizona Court of Appeals ruled Aug. 23 that a 16.75 year sentence should be vacated and remanded for new sentencing when a prisoner showed by a preponderance of the events that he was probably infected with HIV at the time his original sentence was handed down. State v. Ellevan, 1994 WL 450086. John Ellevan was convicted on a variety of drug-related charges, pleaded guilty, and was sentenced to a long term, the judge finding no mitigating factors and several aggravating factors under the sentencing guidelines. Ellevan subsequently filed a petition for post- sentencing relief, alleging newly discovered information: his HIV status, first discovered by his prison doctor. At an evidentiary hearing, Ellevan testified that since testing positive, he had learned that a former girlfriend with whom he had shared needles and sex, had developed AIDS, and he also testified about his IV drug using lifestyle prior to his conviction. The prison doctor testified that Ellevan's t-cells at last testing were low enough that by the time of the hearing he might actually technically have AIDS. Medical journal evidence was presented showing the proportion of infected people that develop AIDS in each year after infection. In opposing Ellevan's petition, the state merely asserted that he might have become infected in prison, but presented no concrete evidence tending to support that assertion. The trial court found that Ellevan had not proved he was infected prior to sentencing. The court of appeals, disagreeing, found that Ellevan's burden was to establish this fact by a preponderance of the evidence; since the state put in virtually nothing in the way of evidence, and Ellevan's evidence suggested a fair probability that he had acquired HIV earlier, Ellevan met the standard, and the matter was remanded for a new hearing on sentencing. A.S.L. Other AIDS Litigation Notes The National Law Journal reported Aug. 8 that Medical Center of North Hollywood was ordered to pay $1.8 million in punitive damages to two AIDS patients who underwent unnecessary surgery as part of receiving an unapproved drug. The July 29 award was in addition to almost $1 million in compensatory damages awarded against the hospital and two physicians. The news report characterized this as the first successful "AIDS fraud" suit in the U.S. We know the cholesterol may be a problem, but an HIV+ Huntington Park, California, resident has a bigger beef with McDonald's; Arvin Peterson claims that food poisoning he allegedly contracted after eating a McRib sandwich, fries, ice cream and a soft drink accelerated his progression to full-blown AIDS. Peterson is suing McDonald's in Los Angeles County Superior Court, with a trial scheduled for September. McDonald's attorney, Michael Thomas, told the Los Angeles Times (Aug. 7) that Peterson contracted shigella because he is gay, not because he ate at McDonald's. "There is a higher incidence among homosexuals to contract shigella because of their lifestyle," he said. Peterson claims that unsanitary conditions at the restaurant caused his food poisoning. Law & Society Notes President Clinton appointed Patricia Fleming, described as an "expert on AIDS policy," to replace Kristine Gebbie as the administration's AIDS policy coordinator on a temporary basis while a search continues for a new coordinator. Gebbie resigned under fire from AIDS advocacy groups, who claimed she had insufficient clout to lead the federal government's AIDS efforts. Responding to the financial needs of PWAs who have life insurance policies, a practice has grown up of viatical settlements: an early payout of the discounted face value of the policy, either by the insurer directly or by a viatical company in exchange for an assignment of the right to receive the full face value from the insurer after the death of the insured. At present, these payouts are treated by the IRS as taxable income to the insured. In December 1992, the IRS published a proposed regulation to excuse the tax liability (see 57 Fed. Reg. 59319, Dec. 15, 1992), and held hearings and received public comment, but no final reg has been published. Some pending health care reform measures in Congress include a similar provision. There has been speculation that the IRS is sitting on the proposed reg in anticipation of Congressional action on health care reform. The IRS staffer responsible for this reg is Ann Logan (202-622-3970). Those interested might want to contact her (as well as their congressional representative and the Treasury Department). The North Carolina Commission for Health Services has suspended anonymous HIV testing in the state, and will now require name and address reporting of all those who test HIV+. State officials indicated that the list will be kept confidential, but will be used for contact tracing of sexual partners or needle-sharing partners. A.S.L. British life insurance companies, reacting to actuarial experience since the beginning of the AIDS epidemic, have decided not to use the fact that an applicant is gay or has taken an HIV antibody test as a basis for charging higher premiums for life insurance, and will not disqualify HIV-infected persons from buying life insurance (although they will be charged higher premiums than uninfected people). (Washington Blade, Aug. 5.) A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS ANNOUNCEMENT: The National Gay & Lesbian Task Force Policy Institute will present its fourth annual Conference on Workplace Issues, titled Working It Out in the Rockies, on October 15 and 16 in Denver. For information about registration and other details, call 303- 538-4318 or 202-332-6483x3361, or e-mail equalityco@aol.com or ngltf@aol.com. LESBIAN & GAY & RELATED LEGAL ISSUES: Armstrong, Kelli K., The Silent Minority Within a Minority: Focusing on the Needs of Gay Youth in Our Public Schools, 24 Golden Gate U. L. Rev. 67 (Spring 1994). Barker, John W., and Sheila Kennedy, The "Gay '90's" -- Sexual Orientation and Indiana Law, 27 Ind. L. Rev. 861 (1994). Berg, Paula, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right to Receive Unbiased Medical Advice, 74 Boston U. L. Rev. 201 (March 1994). Bingham, Lisa B., Employee Free Speech and Wrongful Discharge, 45 Labor L.J. 387 (July 1994). Burks, Kristine L., Redefining Parenthood: Child Custody and Visitation When Nontraditional Families Dissolve, 24 Golden Gate U. L. Rev. 223 (Spring 1994). Chambers, David L., Gay Men, AIDS, and the Code of the Condom, 29 Harv. Civ. Rts. - Civ. Lib. L. Rev. 353 (Summer 1994). Charlow, Robin, Judicial Review, Equal Protection and the Problem With Plebiscites, 79 Cornell L. Rev. 527 (March 1994). Cole, David & William N. Eskridge, Jr., From Hand-Holding to Sodomy: First Amendment Protection of Homosexual (Expressive) Conduct, 29 Harv. Civ. Rts. - Civ. Lib. L. Rev. 319 (Summer 1994). Courson, Marty K., Baehr v. Lewin: Hawaii Takes a Tentative Step to Legalize Same-Sex Marriage, 24 Golden Gate U. L. Rev. 41 (Spring 1994). Dolgin, Janet L., The Family In Transition: From Griswold to Eisenstadt and Beyond, 82 Georgetown L.J. 1519 (April 1994). Dunlap, Mary C., Gay Men and Lesbians Down by Law in the 1990's USA: The Continuing Toll of Bowers v. Hardwick, 24 Golden Gate U. L. Rev. 1 (Spring 1994). Foss, Robert, The Demise of the Homosexual Exclusion: New Possibilities for Gay and Lesbian Immigration, 29 Harv. Civ. Rts. - Civ. Lib. L. Rev. 439 (Summer 1994). Greenfield, Kent, Our Conflicting Judgments About Pornography, 43 Am. U. L. Rev. 1197 (Spring 1994). Harrison, Jack B., Hate Speech: Power in the Marketplace, 20 J. Coll. & Univ. L. 461 (Spring 1994). Loveland, Ian, Hate Crimes and the First Amendment, Public L., Summer 1994, 174. McGoldrick, Brian J., United States Immigration Policy and Sexual Minorities: Is Asylum for Homosexuals a Possibility?, 8 Georgetown Immigration L.J. 201 (Spring 1994). Nelson, William E., Justice Byron R. White: A Modern Federalist and a New Deal Liberal, 1994 Brigham Young U. L. Rev. 313 (attempt to characterize White's jurisprudence places Hardwick decision in context of White's overall approach to individual rights under the Constitution). Robson, Ruthann, Resisting the Family: Repositioning Lesbians in Legal Theory, 19 Signs 975 (Summer 1994) (Special Issue on Feminism and Law). Schacter, Jane S., The Gay Civil Rights Debate in the States: Decoding the Discourse of Equivalents, 29 Harv. Civ. Rts. - Civ. Lib. L. Rev. 283 (Summer 1994). Schneyer, Kenneth L., Avoiding the Personal Pronoun: The Rhetoric of Display and Camouflage in the Law of Sexual Orientation, 46 Rutgers L. Rev. 1313 (Spring 1994) (fascinating exploration of the language used in current lesbian/gay legal controversies; best quote: "Those who take the heterosexist view must do so by oversimplifying the world." [p. 1362]). Winer, Anthony S., Hate Crimes, Homosexuals, and the Constitution, 29 Harv. Civ. Rts. - Civ. Lib. L. Rev. 387 (Summer 1994). Student Notes & Comments: Coukos, Pamela, Civil Rights and Special Wrongs - The Amendment 2 Litigation, 29 Harv. Civ. Rts. - Civ. Lib. L. Rev. 581 (Summer 1994). Editors, Harvard Civil Rights - Civil Liberties Law Review, Introduction: Stonewall at 25, 29 Harv. Civ. Rts. - Civ. Lib. L. Rev. 277 (Summer 1994). Homer, Steven K., Against Marriage, 29 Harv. Civ. Rts. - Civ. Lib. L. Rev. 505 (Summer 1994). Korn, Kirsten, The Struggle for the Child: Preserving the Family in Adoption Disputes Between Biological Parents and Third Parties, 72 N.C.L.Rev. 1279 (June 1994). Lininger, Tom, Overcoming Immunity Defenses to Human Rights Suits in U.S. Courts, 7 Harv. Hum. Rts. J. 177 (Spring 1994). Moore, Melanie A., Free Speech on College Campuses: Protecting the First Amendment in the Marketplace of Ideas, 96 W. Va. L. Rev. 511 (Winter 1993-94). Narbaitz, Dena L., Minimizing the Trauma: A Need for Change in State Conservatorship Laws as Applied to Same-Sex Life Partners, 55 Syracuse L. Rev. 803 (1993). Pennington, Christopher L., The Public Policy Exception to the Employment-at-Will Doctrine: Its Inconsistencies in Application, 68 Tulane L. Rev. 1583 (June 1994). Sears, Brad, Winning Arguments/Losing Themselves: The (Dys)functional Approach in Thomas S. v. Robin Y., 29 Harv. Civ. Rts. - Civ. Lib. L. Rev. 559 (Summer 1994). Book Reviews: Schachter, Jane S., Poised at the Threshold: Sexual Orientation, Law, and the Law School Curriculum in the Nineties, 92 Mich. L. Rev. 1910 (May 1994) (review of Rubenstein, Lesbians, Gay Men, and the Law). Specially Noted: In Same-Sex Unions in Premodern Europe (Villard, New York, 1994), Yale history professor John Boswell marshalls the evidence that both in ancient Greek and Roman civilizations and in pre- Renaissance Christian Europe, there were formal ceremonies and recognition for same-sex unions, including church ceremonies. Boswell is careful to qualify his conclusions, noting the difficulties of evaluating ancient texts, and does not contend that the same-sex unions he is describing would necessarily equate to the 20th-century Western conception of marriage. The book is most useful as an extended, detailed demonstration of how the concept of marriage is socially constructed and extraordinarily variable across temporal and geographical borders. It should be read by all who participate in the ongoing debate about societal recognition of same-sex relationships. The Legal Affairs Department of the ADL Civil Rights Division has published a booklet on hate crimes statutes, titled Hate Crimes Laws: A Comprehensive Guide, which lists and classifies all state hate crimes penalty enhancement laws, examines statutory and constitutional issues raised under these laws and summarizes important court cases interpreting them. The booklet also collates references to related laws that might be invoked in hate crimes cases. For copies, send a check for $2.50 to: ADL, Dept. MRC, 823 UN Plaza, New York NY 10022. Symposia: Stonewall at 25, 29 Harv. Civ. Rts. - Civ. Lib. L. Rev. No. 2 (Summer 1994) (papers presented at Stonewall 25 Conference held at Harvard Law School) (individual articles and student pieces listed above). AIDS & RELATED LEGAL ISSUES: Adams, William, The Dilemma for Minors Seeking HIV-Testing and Treatment, 27 John Marshall L. Rev. 493 (Winter 1994). American Bar Association AIDS Committee, William A. Bradford, Jr., and Michelle Zavos, The AIDS Epidemic and Health Care Reform, 27 John Marshall L. Rev. 279 (Winter 1994). Anderson, Shari, Heartspace Memories, 3 J. Pharm. & L. 1 (1994). Austin, John R., HIV/AIDS Annotated Bibliography, 27 John Marshall L. Rev. 513 (Winter 1994). Burris, Scott, Public Health, "AIDS Exceptionalism" and the Law, 27 John Marshall L. Rev. 251 (Winter 1994). Chambers, David L., Gay Men, AIDS, and the Code of the Condom, 29 Harv. Civ. Rts. - Civ. Lib. L. Rev. 353 (Summer 1994). Closen, Michael L., Introduction: HIV-AIDS in the 1990s, 27 John Marshall L. Rev. 239 (Winter 1994) (Symposium). DeSario, Jack P., and James D. Slack, The ADA and Refusals to Provide Medical Care to Persons With HIV/AIDS, 27 John Marshall L. Rev. 347 (Winter 1994). Dickinson, Gordon M., et al., AIDS: Parameters of Proof, 17 Trial Dipl. J. 163 (July/August 1994) (use of nucleotide analysis to prove legal causation at trial). Garves, Brian R., Fear of AIDS, 3 J. Pharm. & L. 29 (1994). Hernandez, John F., Perinatal Transmission of HIV, 27 John Marshall L. Rev. 393 (Winter 1994). Jayasuriya, D.C., A Comparative Review of AIDS Legislation in Asia and the Pacific, 43 Int'l & Comp. L. Q. 391 (April 1994). Kelly, Joseph, The Liability of Blood Banks and Manufacturers of Clotting Products, 27 John Marshall L. Rev. 465 (Winter 1994). Kirp, David, AIDS In Our Time II: Love Among the Ruins, The Nation, July 18, 1994, pp. 89-93. LeBlang, Theodore R., Obligations of HIV-Infected Health Professionals, 27 John Marshall L. Rev. 317 (Winter 1994). Lerblance, Penn, Legal Redress for Disability Discrimination: Bob, Carol, Ted and Alice Encounter AIDS, 24 Golden Gate U. L. Rev. 307 (Spring 1994). McEvoy, Sharlene A., Tort Liability for Sexually Transmitted Diseases, 23 The Brief No. 4, 14 (Summer 1994). Merrill, Ben, Does American Have the Will to Stop AIDS?, 27 John Marshall L. Rev. 457 (Winter 1994). Mitchell, Sandra L., Employment Issues Facing HIV-Infected Health Care Workers, 3 J. Pharm. & L. 5 (1994). Montoya, Mauro A., Jr., If I Tell You, Will You Treat Me?, 27 John Marshall L. Rev. 363 (Winter 1994). Neville-Ewell, Florise R., Residential Real Estate Transactions: The AIDS Influence, 5 Hofstra Property L.J. 301 (Spring 1993). Oswald, Jane D., Robert Gilbert Johnston, and Mark E. Wojcik, AIDS: Coping with HIV on Campus, 27 John Marshall L. Rev. 449 (Winter 1994). Sternlight, Jean R., Mandatory Non-Anonymous Testing of Newborns for HIV, 27 John Marshall L. Rev. 373 (Winter 1994). Strader, J. Kelly, Criminalization as a Policy Response, 27 John Marshall L. Rev. 435 (Winter 1994). Sullivan, Barry, AIDS: Law, Public Policy, and the Continuing Work of the American Bar Association, 27 John Marshall L. Rev. 273 (Winter 1994). Sullivan, Louis W., A Brief Comment on HIV and AIDS, 5 Hofstra Property L.J. 293 (Spring 1993). Taub, Sheila, Doctors, AIDS, and Confidentiality in the 1990s, 27 John Marshall L. Rev. 331 (Winter 1994). Wojcik, Mark E., AIDS and Funeral Homes: Common Legal Issues Facing Funeral Directors, 27 John Marshall L. Rev. 411 (Winter 1994). Student Notes & Comments: Aston, Derek Charles, Bearing an Hourglass: Statutes of Limitation and Ohio Blood Bank Liability, 3 J. Pharm. & L. 85 (1994). Bagay, Lisa M., Long v. American Red Cross: The Right to Know or the Right to Privacy -- Striking the Proper Balance, 3 J. Pharm. & L. 193 (1994). Berner, Jennifer, Examining the Harmful Effects of Viatical Settlement Regulation, 27 John Marshall L. Rev. 581 (Winter 1994). Blum, Heather J., Tort Liability as the Result of the Transmission of HIV Through Artificial Insemination by Donor, 4 Albany L.J. of Science & Tech. 333 (1994). Brooks, Michael J., Osborn v. Irwin Memorial Blood Bank: The First Case to Hold a Blood Bank Liable in AIDS Tainted Transfusion, 3 J. Pharm. & L. 181 (1994). Burger, Michael Adam, and Lourdes I. Reyes Rosa, Your Money And Your Life! AIDS and Real Estate Disclosure Statutes, 5 Hofstra Property L.J. 349 (Spring 1993). Camillo, Lauren J., Adding Fuel to the Fire: Realistic Fears or Unrealistic Damages in AIDS Phobia Suits?, 35 S. Tex. L. Rev. 331 (April 1994). Conway, Kimberly, In the Shadow of Death: A Guide to Estate Planning for the Client with AIDS, 3 J. Pharm. & L. 109 (1994). Dorney, Linda M., Culpable Conduct with Impunity: The Blood Industry and the FDA's Responsibility for the Spread of AIDS Through Blood Products, 3 J. Pharm. & L. 129 (1994). Flynn, Kevin V., Marchica v. Long Island Rail Road: AIDS Phobia As a Cause of Action Under the Federal Employers Liability Act, 3 J. Pharm. & L. 217 (1994). Galyen, Julia A., Doe v. Johnson: Wrongful Transmission of HIV Based on Traditional Tort Concepts, 3 J. Pharm. & L. 209 (1994). Melvin, John, Support Ministries for Persons with AIDS, Inc. v. Village of Waterford: The Fair Housing Act and AIDS Discrimination: David v. Goliath, Part II, 3 J. Pharm. & L. 201 (1994). Miller, Michael J., Strict Liability, Negligence and the Standard of Care for Transfusion-Transmitted Disease, 36 Arizona L. Rev. 473 (1994). Pisone, Lynnette S., Walls v. Armour: Upholding the Principles of Liability, 3 J. Pharm. & L. 225 (1994). Thomasson, Sean, The Right to Produce AZT: A Matter of Legal Right, Greed, Fortune or Fame: Burroughs Wellcome Co. v. Barr Laboratories, Inc., 3 J. Pharm. & L. 241 (1994). Zaslow, Robert D., Child Custody, Visitation, and the HIV Virus: Revisiting the Best Interests Doctrine to Ensure Impartial Parental Rights Determinations for HIV-Infected Parents, 3 J. Pharm & L. 61 (1994). Book Reviews: Dorney, Linda, And the Band Played On - Politics, People, and the AIDS Epidemic, 3 J. Pharm. & L. 55 (1994). Symposia: Vol. 3, No. 1 (1994) of the Journal of Pharmacy & Law is entirely devoted to articles about AIDS issues in health care. Individual articles, student comments and casenotes, and a book review are listed above. * * * AIDS Law Symposium: Legal, Ethical, and Policy Issues, 27 John Marshall L. Rev. No. 2 (Winter 1994). ANNOUNCEMENTS 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. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in Law Notes is welcome and will be published subject to editing.