LESBIAN/GAY LAW NOTES
October 1994
Lesbian & Gay Law Association of Greater New York
Editor-in-Chief: Professor Arthur S. Leonard, New York Law School,
57 Worth Street, New York, N.Y. 10013
ASLeonard@aol.com

Circulation: Audrey Hartmann, LEGALGNY, 799 Broadway, Rm. 340, NYC
10003.  212-353-9118                   
(C) 1994 by Lesbian & Gay Law Association of Greater New York
ISSN 8755-9021

Contributing Editor:
Colin Crawford, Instructor, Brooklyn Law School

Contributing Writers: 
Otis R. Damslet, Esq., New York City
Paula Ettelbrick, Esq., New York City
Steven Kolodny, Esq., New York City
Kevin Isom, Esq., Atlanta
Todd V. Lamb, J.D., New York City
Dirk Williams, J.D., Boston
Paul Twarog, Student, New York Law School
Robert Bourguignon, Student, Brooklyn Law School
Clarice B. Rabinowitz, Student, Brooklyn Law School

UNANIMOUS NINTH CIRCUIT PANEL ORDERS REINSTATEMENT OF MEINHOLD,
REJECTING PRESUMPTION THAT GAYS WILL HAVE ILLEGAL SEX; DISTRICT
COURT IN NY REFUSES TO DISMISS CHALLENGE TO NEW POLICY                

In an incredibly nuanced opinion, perhaps providing a crucial chord
in the death knell of "Don't Ask, Don't Tell," the United States
Court of Appeals for the 9th Circuit ruled that statements by a
servicemember that he or she is gay or lesbian are insufficient by
themselves to discharge that servicemember from the military.  The
court walked a fine line in Meinhold v. United States Department of
Defense, 1994 WL 467311, 65 FEP Cases (BNA) 1132 (9th Cir. Aug.
31), balancing traditional judicial deference to the military with
the plaintiff's equal protection claim.  The opinion for the
unanimous panel was written by Circuit Judge Pamela Ann Rymer. 
(Two weeks later, the U.S. District Court in Brooklyn refused to
dismiss a claim that the new "Don't Ask, Don't Tell" policy
violates the equal protection, free speech and expressive
association rights of gay military personnel.  See below.)

Keith Meinhold was honorably discharged from the Navy in 1992 after
stating on ABC World News Tonight: "Yes, I am in fact gay," and
sued for reinstatement.  The district court found that the
Department of Defense could not bar gays and lesbians without a
finding of conduct that is incompatible with the "military
mission." It rescinded the discharge and permanently enjoined the
DOD from "discharging or denying enlistment to any person based on
sexual orientation in the absence of sexual conduct which
interferes with the military mission of the armed forces of the
United States."  808 F.Supp. 1455, 1458 (C.D.Cal. 1993).

The appeals court quickly disposed of DOD's claim that the district
court erred in adjudicating Meinhold's constitutional claim before
requiring him to exhaust intramilitary remedies.  The Navy's
position at the discharge proceeding was that the board was
required to recommend separation if it found that Meinhold is
homosexual, and that a member is homosexual if he makes a statement
that he is.  Thus the district court correctly found that further
administrative appeal would be futile, as Meinhold had stated that
he is homosexual.

The Navy then argued that the district court erred in failing to
resolve Meinhold's nonconstitutional claims prior to reaching the
constitutional question.  In Watkins v. U.S. Army, 875 F.2d 699
(9th Cir. 1989), the 9th Circuit held that equitable estoppel may
be applied against the military and should be considered as a basis
for relief before constitutional claims are reached.  Watkins, an
earlier gays-in-the-military case, is most often cited for Judge
Norris's concurrence, stating that barring gays is an inherent
violation of constitutional equal protection, a question the
majority opinion never addressed.  Following Watkins, the court
found that the district court should have decided Meinhold's
equitable estoppel claim.  Rather than remanding for consideration
of this issue, however, the court found that the record was
sufficiently complete to decide the estoppel claim as a matter of
law on appeal.  Under Watkins, a finding of affirmative misconduct
and application of equitable estoppel against the military must
include a finding that the government's conduct will cause serious
injustice and that estoppel will not cause undue harm to the public
interest.  Affirmative misconduct was found in Watkins because
Sergeant Watkins was allowed to re-enlist numerous times, and
receive promotions and security classifications, with the
government's full knowledge of his homosexuality, including a long
paper trail.  Despite his reliance for many years on the
government's position that his homosexuality was unimportant to his
service, he was eventually discharged for homosexuality.  The
Watkins court found this to be affirmative misconduct by DoD and
estopped the Army from discharging Watkins.  In Meinhold, the court
stated that there was no basis for a finding that the Navy
repeatedly acted so as to promise Meinhold that he would not be
discharged solely because of his sexual orientation.  Thus, as a
matter of law, Meinhold's estoppel claim failed.

This procedural jockeying cleared the way for Meinhold's equal
protection claim.  Citing judicial deference to the Navy's
professional judgment, the court accepted the position that
homosexual conduct is incompatible with military service, and that
people who engage in, or by their statements demonstrate a
propensity to engage in, homosexual conduct "seriously impair the
accomplishment of the military mission."  The court went on to
consider the language of DoD Directives, noting that "[a]
homosexual act means bodily contact, actively undertaken or
passively permitted, between members of the same sex for the
purpose of satisfying sexual desires."  The court stated that there
was no question that the Navy's policy is constitutionally
permissible to the extent that it relates to homosexual conduct,
but that Meinhold's separation was due to his "classification as a
homosexual."  It is this classification that implicates equal
protection.

Here the nuances begin.  The court noted that the regulation
assumes that persons who say that they are gay, but who have not
acted in accordance with their propensity in the past, will
nevertheless do so in the future, regardless of whether to do so is
lawful or acceptable military behavior.  However, as the court
pointed out, no similar assumption is made as to members who are
heterosexual, and thus barred from such acts as adultery, wrongful
cohabitation, sodomy, and bigamy.  As the court dug deeper, the
slope the military was balancing on became more and more slippery. 
DoD argued that it need not take the risk of a person with
homosexual desire or propensity acting on it because of the
critical nature of the military mission.  However, DoD is willing
to take the risk that a member who has committed a homosexual act
but is not homosexual will not do so again, as there are exceptions
for heterosexual members who commit a homosexual act because of
drunkenness or immaturity.  The court found this to be wholly
irrational and concluded that "[a]t least a serious question is
raised whether it can ever be rational to presume that one class of
persons (identified by their sexual preference alone) will violate
regulations whereas another class (identified by their preference)
will not."

Even with the strong deference it was willing to accord the
military, the court found it problematic to equate status or
propensity with conduct or acts that are prohibited.  Noting that
DoD's policy hinged on status, the court recalled DoD's brief: "A
servicemember's expressed desire to commit homosexual acts
evidences more than an abstract, ephemeral, or suppressible whim. 
Like acts themselves and like intentions, desire in the relevant
sense evidences a propensity or an often intense natural
inclination."  Thus the court found that the statement prong of the
directives on separation must turn on something much greater than
status, "[a] concrete expressed desire to commit homosexual acts
which are, in turn, prohibited."  The court turned the military's
argument on its head, noting that the directives state that the
presence of persons who engage in homosexual acts, or make a
statement indicating their propensity for engaging in homosexual
acts, impairs the military mission.  However, nothing in the policy
states that the presence of persons who say that they are gay
impairs the military mission.  Saying one is gay, in the court's
view, does not reach the requisite level of expressed propensity to
commit homosexual acts.

Meinhold's statement - "I am in fact gay" - by itself manifests no
concrete desire to commit homosexual acts.  As the Navy based his
separation solely on his classification as a homosexual, it acted
improperly and arbitrarily went beyond what its own policy seeks to
prevent; thus, the court rescinded Meinhold's discharge.  The court
found it wholly unnecessary to construe the military regulation so
broadly as to raise constitutional concerns.  Rather, it was
satisfied to simply hold that it was misapplied to Meinhold. 
Additionally, it found the lower court's injunction barring the
military from taking any action against individuals on the basis of
sexual orientation to be overbroad.  As this was not a class
action, the court stated that the injunction should be no more
burdensome than to provide complete relief to the plaintiff.

This ruling closes another door on the military's argument that it
is constitutional to bar homosexuals on the basis of status alone. 
Meinhold's lawyer, John McGuire, was quoted in the New York Times
(Sept. 1) opining that the court's opinion will have a devastating
effect on the "don't ask, don't tell" policy.  It is no longer
permissible for the government to assume that one who says that he
or she is gay or lesbian will necessarily commit prohibited acts,
yet that presumption sits at the heart of "don't ask, don't tell." 
It is also possible that this decision will affect pending appeals
around the country, most notably Steffan in the D.C. Circuit and
Cammermeyer and Pruitt in the 9th Circuit, all of which involve
status-based discharges in which there was no evidence of conduct. 
P.T.

On Sept. 14, U.S. District Judge Eugene Nickerson filed a second
opinion in Able v. United States, 1994 WL 519028 (E.D.N.Y.), ruling
on the defendants' motion to dismiss.  In Able, six service members
challenge the current military policy, codified at 10 U.S.C. sec.
654, that mandates discharge of any member who identifies himself
or herself as being gay, lesbian or bisexual (the "don't ask, don't
tell" policy), but allows military service by those who keep their
sexual orientation secret and do not engage in homosexual conduct. 
The defendants argued that the case should be dismissed for failure
of the plaintiffs to submit to administrative discharge hearings,
in which they would have the opportunity to prove that they do not
have the intent or propensity to engage in homosexual conduct and,
on the merits, that the current policy is constitutional as a
matter of law.

Nickerson rejected this attempt to dispose of the case before
trial.  In an earlier decision, 847 F.Supp. 1038 (1994), he had
rejected the exhaustion of administrative remedies argument while
granting preliminary injunctive relief barring discharge of the
plaintiffs, and he adhered to the prior holding.  On the equal
protection claim, Nickerson asserted that "Plaintiffs are entitled
to attempt to prove that the findings underlying the Act [i.e., the
Congressional enactment of the current rules] are based solely on
prejudices or fear of prejudice, see Palmore v. Sidoti, 466 U.S.
429, 433, 104 S.Ct. 1879, 1882 (1984), or otherwise that there is
no rational relationship between the Act's classification and a
legitimate government purpose."  Similarly, Nickerson rejected the
motion as to the free speech and expression claim, asserting that
"there is a serious question as to whether the Act and Regulations
restrict speech more than is necessary to protect any substantial
government interest."  On the same theory, Nickerson refused to
dismiss the claim that the policy unconstitutionally infringes the
right of expressive assocation under the 1st Amendment.

However, Nickerson granted the government's motion with respect to
the remaining causes of action.  He found that plaintiffs had not
alleged any imminent harm based on "acts of intimate association,"
and thus lacked standing to assert that theory.  He also dismissed
claims of vagueness and overbreadth.  As to overbreadth, Nickerson
found that it was not necessary for the plaintiff to raise issues
affecting other persons when their own conduct of identifying
themselves as gay placed them squarely within the challenged
policy.  As to vagueness, Nickerson found that the definition of
"homosexual conduct" was reasonably specific, and that since the
policy clearly applied to the plaintiffs' identification of
themselves as gay, they were not in a position to raise a vagueness
argument with respect to the policy's application to them.  A.S.L.

LESBIAN/GAY LEGAL NEWS 

Utah Court: Lesbian Mother Is Not Unfit For Custody Just Because
She Cohabits With a Same-Sex Partner; Other Custody and Visitation
Cases

A rather disturbing trend in recent lesbian custody cases has been
broken by, of all courts, the Utah Court of Appeals.  In Tucker v.
Tucker, 1994 WL 500450 (Sept. 6), the court unanimously overturned
the ruling of the trial court which changed custody from the
lesbian mother to the straight father.  In doing so, the court
ruled that the trial court based its decision on "inadequate
findings."  In particular, the trial court made the conclusory
assumption that "Ms. Tucker's open cohabitation demonstrated a
`lack of moral example to the child and a lack of moral fitness,'"
without linking this finding to Ms. Tucker's ability to function as
a parent.  The court of appeals noted that "extra-marital sexual
activities do not in and of themselves" render a parent unfit to
have custody.  Thus, the court gave teeth to the nexus test by
requiring a specific finding of whether the parent's activities
have any bearing on the child's well-being.  

While this is a wonderful example of a court actually following the
law of requiring a nexus, the most intriguing part of the decision
lies in a footnote where court states another problem it has with
the trial court's analysis.  The trial court decided that it would
treat lesbian/gay parents who are living with partners no
differently than it would treat straight parents living with
unmarried partners.  But, the court of appeals finds that analogy
unfair as it assumes that lesbian and gay couples are deliberately
living immorally by cohabiting without marriage.  According to the
the court, "unlawful cohabitation may be the natural result of
Utah's law prohibiting same-sex marriages rather than a desire by
Ms. Tucker to cohabit without the benefit of marriage." 
Presumptively, then, lesbian and gay couples cohabiting in Utah
cannot be assumed to be living immorally.  (As can only be done in
Utah, the court cites to a custody case involving polygamy to
support its comment.)  P.L.E.

Jefferson County, Alabama, Family Court Judge Sandra Ross granted
a petition by Gretchen Chateau of Orlando, Florida, a lesbian, to
regain custody of her three children from her former husband, who
has since remarried.  She lost custody six years ago when a court
found that she was physically abusing her children.  Now the shoe
is on the other foot, as Judge Ross found that Fred Chateau's
household is unsuitable for a variety of reason, including an
abusive environment.  Ross authorized the custody switch on the
recommendation of Elizabeth Graham, a court-appointed attorney for
the children, who testified that the mother could now provide a
better household and the children preferred to live with her. 
Chateau v. Chateau (Alabama Family Ct., Jefferson Co.) (San
Francisco Sentinel, Aug. 24). * * *  The Maryland Court of Special
Appeals held an unusual en banc session of all 13 judges Sept. 27
to hear North v. North, a visitation dispute between a gay male
HIV+ ex-minister and his former wife.  The lower court authorized
visitation with the father on alternate weekends with no overnight
stays, and ordered the father and his lover to refrain from
displays of affection before the children.  The father originally
married knowing he was sexually attracted to men and led a double
sex life, only "coming out" to his wife after learning he was HIV+
(and, even then, letting time go by during which they continued to
engage in sex before he finally told her the truth).  From a
lengthy story in The Washington Post (Sept. 28), it seems that this
will be the first Maryland appellate decision on visitation rights
for non-custodial gay parents, and it would be hard to imagine a
less appetizing fact pattern for such an important case. * * * The
Washington Blade (Aug. 26) reported that the Supreme Court of
Appeals of West Virginia reversed a lower court order and returned
to a lesbian mother the custody of her two children.  Apparently,
the mother's sexual orientation and female companion were not
issues in the case, which centered on the father's charge that the
mother's frequent moves and occasionally substandard accommodations
provided inferior living circumstances for the children, a
proposition with which the trial court agreed.  The supreme court
held per curiam that the father's proof failed to meet the standard
for a change in custody.  The decision, Jenkins v. Jenkins, 1994 WL
370911 (July 18), mentions neither the mother's lover nor her
sexual orientation.  * * *  The Blade (Aug. 26) also reported that
the Kentucky Court of Appeals reversed a lower court ruling that
had ended a gay, HIV+ father's visitation rights.  Visitation had
been premised on the exclusion of the father's lover; after the
mother learned that the father was HIV+ and had included his lover
in visitation, she sought to end visitation, claiming that the
father's HIV status and their exposure to the lover threatened the
children's physical and moral welfare.  In an opinion apparently
not yet published, the appeals court found no evidence to support
either of the mother's concerns. * * * Correction: In our report of
Matter of David M. v. Lisa M., 1994 WL 445808 (N.Y.App.Div., 3rd
Dept., Aug. 18), we erred in reporting the procedural posture of
the case.  Contrary to our report, the Family Court granted the
petition by the child's great-grandfather for visitation rights. 
Thus, the 3rd Dept. decision holding in reliance on Alison D. v.
Virginia M. that the great-grandfather lacked standing to petition
for visitation was in fact a reversal, not an affirmance, of the
Family Court.  See 1994 Law Notes at 97. A.S.L.

Colorado Appeals Court Affirms Disability Benefits Award in Anti-
Gay Workplace Harassment Case

The Colorado Court of Appeal affirmed in part a grant of disability
benefits to a gay man for psychological injuries  sustained at work
when a co-worker harassed him because of his sexual orientation. 
Rendon v. United Airlines, 1994 WL 460748 (Aug. 25).  Richard
Rendon's claims focused on the acts of a co-worker who apparently
orchestrated or participated in much of the harassment.  The
co-worker and others derided Rendon's sexual orientation and later
assaulted him in the employee parking lot.  When Rendon complained
to a supervisor about a derogatory workplace reference to gays, the
employee who made the comment attempted to get revenge by making a
false charge of sexual harassment.  At Rendon's disciplinary
hearing, the co-worker who led the assault in the parking lot
served as his union representative!  United argued that Rendon and
the co-worker imported their private conflict into the workplace
and that the employer should not be liable for Rendon's resulting
psychological injuries.  The Court of Appeals was not convinced,
because there was no evidence that Rendon and the co-worker had any
contact outside work.  The conflict may have grown from private
biases, reasoned the court, but it was transformed by the forced
proximity of the workplace.  The court set aside certain procedural
rulings and remanded others.  D.W.

American Bar Association Bans Anti-Gay Discrimination by Most Law
Schools

The House of Delegates of the American Bar Association approved a
recommendation by the Section of Legal Education and Admissions to
the Bar to amend Standard 211 of the Standards for Approval of Law
Schools, to ban sexual orientation discrimination by most law
schools accredited by the ABA.  Approval came during the Aug. 9-10,
1994, meeting of the House.  ABA accreditation is important because
most states require graduation from an ABA-accredited law school as
prerequisite to bar admission, with few exceptions.  In some other
states, graduation from an ABA-accredited school is required from
out-of-state applicants.  The ABA Standards set the norm for
acceptable law school policies.

Under amended Standard 211, schools are required to "maintain
equality of opportunity in legal education, including employment of
faculty and staff, without discrimination or segregation on ground
of . . . sexual orientation," and are supposed refrain from
discrimination in admissions on that basis.  The standard will be
held to be violated even if the school's policy is imposed upon it
by central university administration or state policies.  The
standard also effectively recognizes a "disparate impact" theory to
challenge discriminatory action (subdivision [d]), and applies the
non-discrimination policy to the placement process.

However, the Standard retreats from a strong position in two
instances:  It allows schools with religious affiliations to adopt
policies consistent with their affiliations, and it does not
require schools to ban anti-gay employers from their placement
facilities.  According to an interpretive ruling adopted by the
Section on Legal Education, while religiously-affiliated schools
may not have a categorical ban on anti-gay students or faculty,
such schools are not required to provide official recognition or
funding to "organizations whose purposes or objectives with respect
to sexual orientation conflict with the essential elements of the
religious values and beliefs held by the school."  In another
ruling, the Section says that the non-discrimination requirement
applies to all employers, including government agencies, who are
given assistance in the placement process, but that "nothing in the
Standard. . . requires a law school to implement its terms by
excluding any employer unless that employer discriminates
unlawfully."  Thus, until such time as the courts definitely hold
that the anti-gay policies of the Department of Defense violate the
constitution, schools will be able to afford DoD recruiters campus
access without violating the accreditation standards.  (Association
of American Law Schools by-laws go further than the ABA standards
in this respect.)  In a third interpretive ruling, the Section says
that law schools may not require applicants, students or employees
to disclose their sexual orientation.  The amendments were
extensively debated within the Section on Legal Education for
several years, and represent a compromise of views on the religious
school and military issues.  A.S.L.

Partnership & Marriage Updates: Wilson Vetoes California Bill



On Sept. 11, California Governor Pete Wilson sent a veto message to
the California Assembly, explaining why he vetoed A.B. 2810, a
measure that would have established a state domestic partnership
registry, entitled domestic partners to hospital visitation rights
and conservator appointment rights on the same basis as spouses,
and added domestic partners to the checklist of potential
beneficiaries on the standard wills form in the state's Probate
Code.  Wilson asserted that A.B. 2810 "is unnecessary to achieve
its specific aims in terms of hospital visitation, conservatorship,
and testamentary disposition," and stated that he was issuing an
executive order that would "allow competent adult patients to
designate whomever they choose as hospital visitors."  He premised
his opposition, however, on the contention that recognizing
domestic partners would undermine the government's interest in
encouraging and rewarding marriage, observing that "86 percent of
the audience for A.B. 2810 are heterosexual couples who live
together but do not marry. . .  We need to strengthen, not weaken,
the institution of marriage," he argued.  Not unsurprisingly,
however, the message did not contain a pitch for legislation
authorizing same-sex marriage.  Thus, the hopes of lesbian and gay
Californians for the option of state-recognized partnership must
apparently be sacrificed, in Wilson's view, to avoid encouraging
heterosexuals to live together without marrying.

Local 2, Hotel and Restaurants Employees Union, concluded an
agreement Sept. 15 with representatives of twelve major San
Francisco hotels that will include domestic partnership coverage.
San Francisco Sentinel (Sept. 21).  The news report did not
indicate whether benefits are limited to same-sex couples.  The
description of qualifications sounds similar to that contained in
the bill vetoed by Governor Wilson.

The N.Y. State government reached agreement with unions
representing state prison guards and state university professors to
provide domestic partnership health insurance coverage to both
same-sex and opposite-sex unmarried partners of state employees.
San Francisco Sentinel (Sept. 21).  The agreements, announced Sept.
16, would make N.Y. only the second state to provide domestic
partnership health coverage to any state employees.  The unions
involved represent more than 100,000 employees, making this one of
the largest domestic partnership benefits programs to date.

The Carrboro, N.C., board of aldermen voted unanimously Sept. 13 to
establish a domestic partnership registration system, which will
take effect Oct. 11, "National Coming Out Day."  Both same-sex and
opposite-sex couples may register.  No benefits are presently
extended, since the board's insurance contracts for municipal
employees are not open for negotiation until the spring.  One
detriment of registering: those who hold public office will be
required to file disclosure statements for their partners, the same
as married officials.  A.S.L.

National Car Rental expanded the exemption list for its "additional
driver fee" to include "married couples with different last names,
same gender relationships, and common law marriages."  National
announced its policy change in an Aug. 28 letter to a customer who
had written asking them to recognize domestic partners.  Avis
previously adopted such a change.  Potential customers are still
lobbying Hertz on the issue. 
An employee of SAS Institute, Inc., described as "the eighth
largest independent software company in the world" and a major
employer in N.C.'s research triangle area, posted an announcement
on Internet that the company has extended the following benefits to
domestic partners of employees: family leave, funeral leave,
relocation expenses, and adoption assistance.  Assistance with
child care had already been available since 1981.  The head of the
company announced he would consider health and dental benefits when
signs are clearer about what will happen to health care reform on
the federal level.  

SONY Entertainment announced it would extend health insurance
benefits to same-sex domestic partners of employees on the same
basis as opposite-sex spouses.  Benefits will go into effect on
Jan. 1, with open enrollment beginning in October.

An unexpected cost-saving side effect of domestic partnership
policies:  When the Jewish Board of Family and Children's Services
in N.Y.C. implemented domestic partnership benefits for same-sex
partners of employees this summer, it also put into place for the
first time a requirement that all employees claiming coverage for
a spouse provide evidence that they are currently married.  As a
result, the agency has been able to terminate benefits for
unmarried partners and formerly married partners of employees who
were receiving coverage under "false pretenses,"  significantly
reducing the net cost of the program.  The agency's insurance
carriers are H.I.P. and Oxford.

In a case of first impression, a N.Y. County Housing Court Judge
recognized long-time gay male domestic partners as the equivalent
of spouses in refusing to order the eviction of one at the instance
of the other.  Belier Press, Inc. v. Bentley, NYLJ, 9/22/94, p.30,
col.3 (Judge Grayshaw).  The men became partners in 1974; in 1976,
they moved together into the apartment that is the subject of the
suit.  The leaseholder is a corporation wholly owned by Rund, but
the lease authorized occupancy by Rund and Bentley.  According to
Rund's petition, he and Bentley are no longer lovers and he wants
Bentley out.  Rund brought a summary holdover proceeding in housing
court, claiming that Bentley was a "mere licensee."  Not so,
concluded Judge Grayshaw: "It seems clear to this court that were
Mr. Rund and Mr. Bentley to have been man and wife, lawfully
married, that no action would lie under RPAPL 713(7).  Further,
courts have held that a man and woman residing together without
formalizing the relationship by marriage cannot resort to the
summary proceedings of the Housing Court.  In such a case a man and
a woman could lawfully marry were they so inclined.  In this case,
being both male, the State of New York does not permit these
parties to marry.  Nevertheless, for some 20 years these parties
have resided as lovers.  Social realities require the court to
recognize that these two men who resided together as lovers acquire
some rights with respect to continued occupancy of the apartment
they shared not unlike those acquired by a spouse."  The court
concluded it lacked jurisdiction and dismissed the action without
prejudice, indicating that the proper remedy was an action for
ejectment in Supreme Court.  Bentley is represented by LeGaL member
J. Rush Barnes.

Shawna Underwood and Denia Davis, a lesbian couple in Florida who
filed suit for a marriage license, abandoned their litigation in
Orange County Circuit Court just days after a hearing on the
state's motion to dismiss.  The Orlando Sentinel (Sept. 9) reported
that the case was dropped by the Central Florida chapter of ACLU,
which was representing the women, to avoid duplicating efforts now
underway in Hawaii in Baehr v. Lewin. Florida ACLU reps said the
decision to drop the suit was made after conferring with the ACLU
national office and Lambda Legal Defense Fund, which is involved in
the Hawaii litigation.

Prudential Insurance Company announced that as of Jan. 1, 1995, it
will be offering a domestic partnership coverage option to
employers with 50 or more employees in California, covering both
same-sex and opposite-sex couples, according to a recent Internet
posting. A.S.L.

Oregon Anti-Gay Measure on the Ballot With Deceptive Explanatory
Statement; Other Initiative Updates

There will be two statewide anti-gay ballot measures in November,
as the Oregon Court of Appeals ruled Sept. 1 in Lowe v. Keisling,
1994 WL 476073, that a trial court improperly ordered Oregon
Secretary of State Phil Keisling to take Measure 13, the Oregon
Citizens Alliance's (OCA) latest anti-gay initiative, off the
ballot.  On Sept. 6, in a separate case, the Oregon Supreme Court
ruled that the official explanatory statement for Measure 13 did
not have to mention that it would bar the state or its subdivisions
from protecting homosexuals from discrimination. (The other pending
statewide initiative is in Idaho.)  

The Oregon initiative had previously been considered as to form by
the Oregon Supreme Court, and upheld as revised in Mabon v.
Keisling, 856 P.2d 1023 (Ore. Sup. Ct. 1993).  As revised by the
Supreme Court, the ballot summary states: "Amends state
Constitution.  Governments cannot: `-- create classifications based
on homosexuality; '-- advise or teach children, students, employees
that homosexuality equates legally or socially with race, other
protected classifications; `-- spend public funds in manner
promoting or expressing approval of homosexuality; `-- grant
spousal benefits, marital status based on homosexuality; `-- deny
constitutional rights, services due under existing statutes.
`Measure nonetheless allows adult library books addressing
homosexuality with adult-only access.  Public employees' private
lawful sexual behaviors may be cause for personnel action, if those
behaviors disrupt workplace." 

A group of Oregonians filed suit seeking to have Measure 13 kept
from the ballot, alleging six theories for relief: (1) that Art.
IV, sec. 4 of the U.S. Constitution, the so-called Guaranty Clause
(requiring that every state have a republican form of government),
would be violated by holding the vote; (2) that Measure 13 violates
the single subject rule under Ore. Const. art. IV, sec. 1(2)(d);
(3) that Measure 13 is a "revision" rather than an "amendment" of
the constitution, and thus violates Ore. Const. art. XVII, sec. 2;
(4) that Measure 13 has the "purpose" and "effect" of violating 1st
amendment and Equal Protection Rights of plaintiffs, and that
merely placing the measure on the ballot would violate plaintiffs'
due process rights; (5) that internal inconsistencies made the
measure essentially meaningless, and thus not a proper subject for
an initiative; and (6) that Measure 13 has the "purpose" and
"effect" of violating fundamental rights of a class of citizens,
such that placing it on the ballot would violate that class's
rights to equal protection.

The trial court ruled in plaintiffs' favor on the second and third
claims, finding that the initiative brought together several
different subjects and would constitute a revision rather than an
amendment.  The court of appeals, in a decision by Judge Warren,
unanimously reversed, finding the single subject requirement to be
met: "We read all of the provisions of the proposed ballot measure
as dealing with and defining limitations on how state and local
governments in Oregon can treat homosexuals and the subject of
homosexuality. We do not view the limitations on expenditure of
public funds, on minors' access to books in public libraries and on
public employment as each embracing a subject different from that
main subject.  Each of the provisions is a means of implementing
the measure's general policy of prohibiting government from
approving homosexuality."  The court also found that the initiative
would not work a wholesale revision of the constitution and should
be characterized as an amendment.  

Turning to plaintiffs' other theories, which failed to persuade the
trial court, the court of appeals found that the trial court had
partially erred in concluding that plaintiffs did not have standing
to raise some of these issues, but ultimately concluded that none
of the arguments sufficed to block Measure 13.  In essence, the
court of appeals agreed with the lower court that the suit was an
attempt to obtain an advisory opinion on the substantive
constitutionality of Measure 13, and that Oregon precedent
precludes any opinion on the merits until after an initiative has
been approved by voters.  Until then, constitutional harms alleged
by the plaintiffs were deemed hypothetical.  Thus, the court
refused to recognize that the very process of putting people's
rights up for a vote may constitute a harm of constitutional
dimensions -- a proposition at the heart of the decision in
Equality Foundation v. City of Cincinnati, 1994 WL 442746, 65 FEP
Cases (BNA) 1167 (U.S.Dist.Ct., S.D.Ohio, Aug. 9), in which the
federal court found unconstitutional Issue 3, a municipal
initiative with a similar purpose to Measure 13.  See also Evans v.
Romer, 63 Fair Empl. Prac. Cas. (BNA) 753 (Colo. Dist. Ct., Dec.
14, 1993), on remand from 854 P.2d 1270 (Colo. Sup. Ct., 1993),
appeal pending.  A.S.L.

In Lewis v. Keisling, 1994 WL 486972, 320 Or. 1 (Sept. 6), Justice
Gillette, writing for a 4-3 majority of the Oregon Supreme Court,
reviewed the constitutionally required "Explanatory Statement" that
will accompany Measure 13.  Measure 13 will ask voters whether
state and local governments should be prohibited from enacting any
laws creating protections for a person's homosexual status.  
Petitioner Lewis challenged the Explanatory Statement, arguing that
it needed more clearly to inform voters that Measure 13 would
"prevent state and local governments from prohibiting
discrimination against a defined class of citizens."  

The court considered whether the Explanatory Statement was either
"insufficient or unclear" and whether the explanations were
"impartial" or "potentially misleading."  It had previously been
decided to keep the term "discrimination" out of the title of
Measure 13.  Language was ultimately settled upon that would render
governments unable to "create classifications based on
homosexuality."  The word "discrimination", said the court,
stricken as it was from the measure's title, could not now be
considered "so impartial that now it must, as a matter of law, be
put into an Explanatory Statement."  The wording remained "loaded"
and "pejorative."

A vigorous dissent by Judge Unis noted that in previous litigation
over the constitutionality of Measure 13, the Oregon Supreme Court
had taken explicit notice that the ordinance would have the effect
of prohibiting local governments from enacting legislation aimed at
preventing discrimination based on homosexuality.  Since the
Explanatory Statement contained no notice to the electorate
regarding this effect, it was "insufficient."  "Creating
classifications" based on homosexuality is a legally accurate
description of the measure, admitted Justice Unis, and the
Explanatory Statement details how governments would be prevented
from enacting laws that benefit homosexuals as a group through
affirmative action, quotas, or domestic partnerships.  However, he
also noted that the Explanatory Statement does not detail that
governments would also be prevented from enacting laws protecting
homosexuals against discrimination in employment.  Thus, voters who
might desire to ban the affirmative legal treatment of homosexuals
are informed of the measure's effect, but voters who seek to uphold
the ability of governments to protect homosexuals against
discrimination are not informed of the measure's "certain" and not
"secondary" effect of eradicating this authority.  "The Court,"
according to Justice Unis, "should not avoid using a term such as
`discrimination,' which expresses clearly and accurately a major
effect of the measure, in order to substitute more `polite'
language that fails to accurately and completely convey a
universally recognized major effect of the measure."  R.B.

The Cincinnati City Council voted Sept. 7 to appeal U.S. District
Judge Spiegel's decision in Equality Foundation v. City of
Cincinnati to the 6th Circuit.  The intervenor-respondent, Equal
Rights Not Special Rights, already filed an appeal in the case. 
Local tourism officials lobbied against an appeal, noting the
significant convention business the city lost since the vote in
favor of Issue 3, which repeals the city's gay rights ordinance and
bars any policies protecting gays from discrimination.  The Council
was persuaded by the city attorney that Judge Spiegel's holding
that gays are a quasi-suspect class, thus subjecting all city
policies that discriminate against gays to heightened scrutiny
under the Equal Protection Clause, might create substantial
liability for the city, and thus the decision had to be appealed,
even by those who were opposed to Issue 3.  Equal Rights Not
Special Rights, the chief sponsor of Issue 3, announced that former
U.S. Circuit Judge Robert Bork had been retained to assist in the
appeal, and that former U.S. Attorney General Ed Meese agreed to
undertake fundraising for the appeal.  A.S.L.

Petitions have been submitted in Maine to put an anti-gay 
initiative on the ballot in 1995.  The measure would restrict the
state or political subdivisions from providing protection against
discrimination to homosexuals.  (The Advocate, Oct. 4). A.S.L.

Mass. Commission Rejects Lesbian's Claim Against School

Michael T. Duffy, a gay man who chairs the Massachusetts Commission
Against Discrimination, ruled Sept. 14 in Huff v. Chapel Hill
Chauncy Hall School, Docket No. 93-BEM-1041, that the respondent
school did not violate a state law forbidding employment
discrimination on the basis of sexual orientation when it refused
to allow Christine Huff, a lesbian employee, to live on campus with
her life partner on the same basis that married employees live on
campus with their spouses.  Huff was employed in a position that
required her to live in the dormitories as a student life
counselor, which she did without incident for two years.  When it
came time to negotiate a renewal contract, she asked that her new
partner be allowed to live with her.  After some consideration, the
school responded that it was unwilling to waive its rule against
unmarried partners living together.  Huff claiming both disparate
impact and disparate treatment discrimination on teh basis of
sexual orientation in violation of the Mass. Law Against
Discrimination.

Duffy conceded that Huff had stated a clear case for disparate
impact discrimination, but found that the legislature had barred
this action by the inclusion of sec. 19 in its 1989 non-
discrimination act: "Nothing in this act shall be construed so as
to legitimize or validate a `homosexual marriage,' so-called. . ." 
Legislative history showed that proponents of sec. 19 intended the
provision to mean "that nothing in the law could be construed to
okay homosexual rights in other areas such as marriage and spousal
rights," quoting a statement by Rep. Steven Pierce.  From this,
Duffy concluded that the Commission was without authority to rule
in Huff's favor, since if it did so "the employer would be required
to treat the relationship as a marriage," which the law forbids. 
To bolster his conclusion, Duffy cited other state law provisions
that treat married persons differently from unmarried persons, and
also observed that the Law Against Discrimination does not forbid
marital status discrimination in employment (although it does
forbid such discrimination in housing).  Without any discussion
over whether this case could be conceptualized as a housing case,
Duffy asserted his conclusion that it was an employment case, and
thus Huff's claim, which was essentially a "marital status" claim,
had to fail.  He also rejected the disparate treatment claim,
pointing out that unmarried heterosexuals were also barred from
living together in the school's dormitories.  Duffy observed that
so long as the state did not allow same-sex couples to marry, this
sort of a disparate impact discrimination would continue, but that
the proper means of addressing it was through the political branch,
either by eliminating sec. 19 from the Law Against Discrimination
or by changing the marriage law.

Huff is represented by Mary Bonauto of Gay & Lesbian Advocates &
Defenders, who announced Huff's intention to appeal the ruling to
the full board of commissioners.  (Boston Globe, Sept. 16.) A.S.L.

Miscellaneous Federal Litigation Notes

U.S. District Court Judge Moran (N.D. Illinois, Sept. 20) rejected
claims of civil rights violations by a gay male prisoner, Tonya
Star Jones.  Jones v. Mitchell, 1994 WL 517202 (not officially
reported).  Among other claims, Jones asserted that prison
officials violated his 8th Amendment rights by placing him in a
unit where other prisoners knew he was gay and subjected him to
verbal harassment and threats of violence.  Moran found that prison
officials responded to Jones's concerns by placing him in a cell by
himself to which other prisoners would not have access, and no
other prisoner ever laid a hand on Jones.  Although reactions to
his concerns were not instantaneous, Moran found that Jones failed
to allege facts sufficient to meet the standard of "deliberate
indifference" to inmate health and safety established by the
Supreme Court for such cases.  

The 5th Circuit rejected Gary Byrd's appeal of his conviction and
sentence for receiving child pornography through the mail.  U.S. v.
Byrd, 1994 WL 475833 (Sept. 1).  Byrd, caught in a sting operation
by the Postal Service during the Reagan Administration, relied on
Jacobson v. United States, 112 S.Ct. 1535 (1992), in which the
Supreme Court found that a postal service child pornography sting
had gone too far in luring an Iowa farmer into ordering child
pornography through the mail.  Circuit Judge DeMoss rejected Byrd's
reliance on Jacobson, finding that, unlike Jacobson, Byrd responded
eagerly to the first solicitation for an order, and did not have to
be cajoled into violating the statute.  

U.S. Immigration Judge Gabriel Vidella granted political asylum
Aug. 31 to a Pakistani immigrant who feared persecution in his
native country because he is gay.  (Newsday, Sept. 1; Washington
Blade, Sept. 2).  The anonymous applicant, represented by LeGaL
member Noemi Masliah, was a professional cricket player who was
kicked off his team when officials learned he was gay and subjected
to other harassment and death threats, and then fled Pakistan in
1991.  Vidella's ruling was the first to apply Attorney General
Reno's order from last spring giving precedential effect to a prior
Immigration judge's ruling that gays constitute a distinct social
group for purposes of analyzing political asylum applications. The
petitioner and his American lover live in Kansas.

A U.S. District Court jury in San Francisco awarded $5,600 in
economic damages and $30,000 in emotional distress damages to The
Bay Times, a gay weekly newspaper, and its publisher and editor,
finding that former S.F. Police Chief Richard Hongisto and two
police officers were guilty of civil rights violations when they
conspired to remove an issue of the paper from newsstands in May
1992 because of a critical depiction of Hongisto on the cover. 
District Judge D. Lowell Jensen earlier ruled that the city could
not be sued, but that Hongisto and the police officers were acting
under color of state law and could be sued personally.  The jury
rejected the claim that Hongisto acted with malice, which would
have required that he pay his own legal fees in the case.  The city
provided defense counsel and plans to appeal, arguing that Hongisto
and the police officers were not carrying out official duties at
the time. (NY Times, Sept. 18). A.S.L.

On Sept. 4, a U.S. District Court jury in Florida decided that the
Sunrise, Florida, Police Department unlawfully discriminated
against Darren Lupo, an unmarried lesbian patrolwoman, by requiring
that she work a Christmas shift in place of a married policeman
with children, but rejected her broader claim of a pattern of
discrimination based on her sex and sexual orientation.  The jury
awarded $56,250 in compensatory damages. (Ft. Lauderdale Sun-
Sentinel, Sept. 5). A.S.L.

Miscellaneous State Litigation Notes



The Washington Supreme Court denied review in State v. Lucas, 73
Wash.App. 708, 870 P.2d 1037 (1994).  Megan Lucas gave her infant
child up for adoption.  When she learned that the child was placed
in foster care with a gay couple who planned adoption, she
attempted to rescind her consent, and instigated litigation seeking
to adopt the child herself.  The state court of appeals ruled in
April that having formally relinquished her parental rights she was
ineligible to adopt.  Her appeals were financed by anti-gay and
right wing Christian groups.  Lucas's attorney, Richard Kimberly,
is under investigation by the State Bar's disciplinary authorities
for inconsistencies in the factual allegations about Lucas's
financial situation made in this proceeding and unrelated federal
bankruptcy proceedings also handled by Kimberly's two-person firm.
(Seattle Post-Intelligencer, Sept. 13.)  A.S.L.

The Virginia Supreme Court refused to grant an expedited appeal in
Bottoms v. Bottoms, or to award Sharon Bottoms custody temporarily
while the appeal is pending.  In June, the Virginia Court of
Appeals ruled that the trial court erred in awarding custody of
Sharon's son, Tyler, to Sharon's mother, solely because Sharon is
a lesbian who lives with a same-sex partner. See 444 S.E.2d 276
(June 21).  However, Sharon's mother filed an immediate appeal to
the state supreme court, which preserved her custody of Tyler until
the appeal could be decided, and she continued to make visitation
difficult for Sharon.  Attorneys for Sharon argued that under the
circumstances custody should be returned to Sharon or the court
should grant an expedited review.  A.S.L.

The Florida 2nd District Court of Appeal ruled Sept. 23 that state
officials could not apply unwritten standards disqualifying gays
and unmarried couples from being foster parents, because the
standards were not properly promulgated through formal rule-making
procedures, according to the St. Petersburg Times (Sept. 24). 
Matthews and Kohler v. Department of Health and Rehabilitative
Services.  Plaintiffs won a ruling last year from the Hillsborough
County Court that the policy violated the state constitution's
right to privacy, but the court of appeal avoided a substantive
constitutional ruling.  Lora Smeltzly, attorney for the plaintiffs,
described the decision as "technically. . . a victory," although
the Department could adopted the same policy by going through the
formal publication, notice and hearing procedure.  The plaintiffs,
Bonnie Lynn Matthews and Elaine Kohler, obtained a provisional
foster care license; a child was living in their home for two
months when a social worker asked Matthews if she was a lesbian;
her affirmative reply led to removal of the child and filing of the
suit.  Chief Judge Richard Frank told the Times that the opinion
was released prematurely, as the judges wished to reconsider some
of the language.  

The Texas Court of Appeals agreed with Mary Frances Masterson that
it was improper for a trial court to award $25,000 in damages
against her when she failed to show up for a pretrial conference on
Gigi Cox's claims for slander and slander per se for calling Cox a
homosexual.  Masterson v. Cox, 1994 WL 499281 (Sept. 15).  Cox, a
paralegal, alleged that Masterson, an attorney, told another
attorney that Cox was a homosexual, and that this was a false and
harassing statement.  The other attorney, Robert Yack, testified by
deposition about Masterson's statement and also that such a
statement could hurt Cox's business or ability to get work. 
Masterson was also deposed, and was non-specific about the basis
for her statement, although she conceded that Cox never told her
that Cox was gay, and neither had anybody else.  At the pretrial
conference, Cox filed a copy of a notice showing that Masterson was
aware of the conference date.  The trial court rendered its
judgment based on the depositions and Cox's testimony at the
conference.  The court of appeals remanded for a trial, finding
that Masterson's due process rights had been violated.  

The Michigan Court of Appeals reversed the conviction of Ramona J.
Harper for child abuse, finding that references to her lesbian
orientation may have prejudiced the jury against her.  State v.
Harper (Sept. 9).  The opinion had not been published at press
time, but was reported by the San Francisco Sentinel (Sept. 14). 
According to the news report, the court of appeals found irrelevant
and prejudicial the testimony of one witnesses, a teenage boy, who
said he had observed Harper having sex with another woman.  "We
think the venue is not free from gay and lesbian intolerance and
fear," wrote the court of appeals. "No testimony or other evidence
was presented on any relationship between homosexual coupling and
child sexual abuse."  The case was returned to Detroit City
Recorder's Court. 

Mica England settled her lawsuit against the city of Dallas, Texas,
which refused to hire her as a police officer due to her sexual
orientation.  The court previously ruled that the police
department's policy against employing homosexuals violated the
Texas constitution, a decision upheld on appeal and denied review
by the Texas Supreme Court on procedural grounds.  See City of
Dallas v. England, 846 S.W.2d 957 (Tex.App., 1993).  Since filing
suit, England has decided to pursue a career as a chef, and agreed
to settle for $73,000, $31,000 of which will go to her lawyers. 
England was represented by local counsel in collaboration with
Lambda Legal Defense & Education Fund.  England plans to use her
settlement to pay off debts and open a restaurant.  A.S.L.

Labor Arbitrator Sustains Discharge of Gay Employee for Sexual
Harassment of Co-Workers

Labor Arbitrator Mei L. Bickner ruled in Hughes Aircraft Company &
Electronic and Space Technicians, Local 1553, 94-2 ARB  4357
(CCH), that there was just cause for the discharge of a gay male
Storeroom Stock Clerk who was accused of sexually harassing male
co-workers by repeatedly making sexually explicit remarks and
unwelcome sexual advances.  Arbitrator Bickner found that there had
been repeated complaints to management, that the grievant had been
previously disciplined on similar charges, and that the co-workers
made it clear to the grievant that his advances were unwelcome. 
A.S.L.

Legislative Notes

The federal Crime Bill signed by President Clinton on Sept. 13
includes a mandate to the U.S. Sentencing Commission to "promulgate
guidelines or amend existing guidelines to provide sentencing
enhancements of not less than 3 offense levels for offenses that
the finder of fact at trial determine beyond a reasonable doubt are
hate crimes."  Hate crimes are defined as "a crime in which the
defendant intentionally selects a victim, or in the case of a
property crime, the property that is the object of the crime,
because of the actual or perceived race, color, religion, national
origin, ethnicity, gender, disability, or sexual orientation of any
person."  sec. 28003, P.L. 103-322, 1994 H.R. 3355.  This mandate
will appear in 28 U.S.C.A. as a note to sec. 994.

We've learned belatedly that last December the town council of
Troy, Idaho, added sexual orientation to its anti-discrimination
policy, protecting the town's two employees from discrimination on
that basis!  So, to the question whether the pending Idaho ballot
initiative would change anything in Idaho, it would render
unenforceable the Troy ordinance.  (Our source is a Boise resident
who posts on America On-Line.)  

City commissioners of West Palm Beach, Florida, approved an
ordinance that bans housing and employment discrimination on the
basis of sexual orientation, religion, race or age, by a vote of 4-
1.  (Palm Beach Post, Aug. 30; Miami Herald, Sept. 14.)  The
ordinance creates a human rights panel which is  authorized to
impose daily fines of up to $500 until alleged discrimination is
remedied.  

A House-Senate conference committee agreed to omit amendments to
the Elementary and Secondary Education Act sponsored by Senator
Jesse Helms and Representative Mel Hancock that would have
conditioned federal funding to public schools on virtually an
absolute omission from school programs of anything that could be
remotely construed as treating homosexuality as other than perverse
and evil.  Instead, the committee substituted amendments proposed
by Senator Ted Kennedy and Representative Jolene Unsoeld, intended
to maintain the discretion of local school boards over curriculum,
by narrowly providing that federal funds could not be used to
promote sexual activity of any kind by students.  However, it seems
likely that Congressional conservatives may seek some way to hold
up final passage of the Act over this issue.  

The Maryland General Assembly leadership promulgated a policy
statement barring sexual orientation discrimination against
Assembly staffers.  Washington Blade (Sept. 16).  A.S.L.

Law & Society Notes



In a speech to the National Lesbian and Gay Journalists Association
meeting in Milwaukee Sept. 23, U.S. Surgeon General Joycelyn Elders
said that homophobia is "a public health issue" because of its role
in gay and lesbian suicides, drug and alcohol abuse and depression. 
Elders announced she would advocate more research to determine,
once and for all, whether teen suicides disproportionately involve
lesbian and gay youth, as had been reported by a much criticized
study produced during the Bush administration but blocked from
release by then-Secretary of Health and Human Services Louis
Sullivan at the request of Senator Jesse Helms.

Karen Burstein, an openly lesbian candidate, won a four-way race
for the Democratic nomination to be New York State's next Attorney
General.  If elected, she will be the first openly lesbian person
to win statewide office in the United States.  The only other
openly gay person running for state office this year is Tony
Miller, seeking the Secretary of State position in California. * *
* William Fitzpatrick, an openly gay member of the Rhode Island
Senate, won a contested primary for renomination. * * * Mike
Pisaturo, an openly gay candidate from Cranston, California, has
received the Democratic nomination for the state House of
Representatives, running against an incumbent in November. * * *
Openly gay Calvin Anderson won his contested primary for the
Democratic nomination for the 43rd District seat in the Washington
State House. * * * Derek Belt was unopposed for the Democratic
nomination for an open seat in the Massachusetts House of
Representatives.  The openly-gay candidate will face both a
Republican and an Independent challenger.  A.S.L.

Marcy L. Kahn, an openly lesbian Criminal Court Judge in New York
County, has been nominated for election to the New York State
Supreme Court in New York County by a judicial nominating
convention.  Judge Kahn, a LeGaL member, was nominated for a
Supreme Court vacancy by Governor Mario Cuomo earlier this year,
but the legislature failed to act on the nomination before
recessing for the summer.

San Jose (California) State University President J. Handel Evans
announced he will go along with an Academic Senate vote to end
Reserve Officer Training Corps (ROTC) units at the university.  The
Senate voted in response to charges that allowing ROTC to function
violated the school's policy against discrimination on the basis of
sexual orientation.  (San Jose Mercury News, Sept. 13). 

The Seattle Times (Sept. 16) reports that puzzled prison officials
are holding a transsexual prisoner in an isolation cell while
trying to determine whether the prisoner should be in a men's or
women's unit.  The inmate uses a woman's name and dresses as a
woman, but when she was being processed for prison admission after
conviction on a drug charge (a routine strip search), she was
discovered to have male genitalia.  "Someone said we needed to have
some more clarification on what we needed to do with this person,"
commented prison spokesperson Kim Shaffer. 

Then there were three:  U.S. Representative Steve Gunderson (R.-
Wis.) has finally "come out" as gay. . . sort of.  In an interview
with The Advocate (Oct. 4, p. 40), Gunderson never uses the H or G
words about himself, but his domestic partner, Rob Morris refers to
him as "a gay congressman" and it seems clear from the content and
tone of the interview that Gunderson is now reasonably comfortable
about being openly gay.  He is running for re-election but stated
that he does not plan to run for any additional terms.  The other
openly-gay members of Congress, Representatives Barney Frank and
Gerry Studds, are both Democrats from Massachusetts districts.
A.S.L.

International Notes

Yet another Helms Amendment takes effect, this time on the world
stage.  Sen. Jesse Helms succeeded in adding an amendment to the
authorization bill for the U.S. contribution to funding the United
Nations that would block all funding to the U.N. or associated
bodies unless they certify that they do not support pedophilia or
grant any official status to "any organization which promotes,
condones or seeks the legalization of pedophilia."  Helms was
reacting to news that the North American Man-Boy Love Association
(NAMBLA), a pedophile organization, was a member of the
International Lesbian and Gay Association, which received
consultative status at the U.N. last year.  As required by the
statute, the U.S. State Department informed the U.N. that it might
lose its funding due to ILGA's status.  At its annual conference in
June, ILGA voted to expel NAMBLA from membership.  Not good enough
for Helms and the State Department, however, as they claimed that
a German organization affiliated with ILGA also has a pedophile
subgroup.  The U.N. has suspended ILGA's consultative status.  ILGA
leaders are brooding about what to do next and seething over the
State Department's action in pressuring the U.N. without first
giving ILGA the opportunity to rid itself of the offending group.

State-operated Radio and Television Malaysia announced that gays
may not appear on radio or television in that country.  The
Information Minister said that the national policy of "health and
family values" required the ban, and the Prime Minister, critical
of countries that are providing legal recognition to lesbian and
gay couples, said: "Such a concept of the family is crazy and
contrary to religious teachings.  It will only produce illegitimate
children who may, in turn, have incestuous marriages with their
siblings."  (Washington Blade, Aug. 26)

Gay and lesbian bookstores in Canada continue to struggle with
Canadian Customs over seizure of gay books entering the country. 
According to the Washington Blade (Sept. 16), a bookstore in
Vancouver recently suffered seizure of two shipments from the U.S.,
including such obscene and seditious material as a major
publisher's biography of Noel Coward.  The British Columbia Supreme
Court is scheduled to hear arguments soon on a previous seizure of
books from the same store, Little Sister's.  

Washington Blade (Sept. 23) reports that a Berlin court fined two
right-wing Berlin regional council members for inciting anti-gay
hatred, including lobbying the health minister to cut funding for
gay counseling programs.  The court found that the councillors had
violated their responsibility as public officials to protect
minorities.  We wonder how this court would deal with Jesse Helms
or Robert Dornan?  

A symbolic anti-gay victory for the Vatican?  At the insistence of
representatives of the Roman Catholic Church, an international
conference meeting in Egypt to consider world population issues
altered the final draft of a conference document, "Program for
Action," to remove references to non-traditional families to which
the Vatican objected.  While the media trumpeted a Vatican victory
against gay rights, observers pointed out that the draft had never
explicitly mentioned homosexuality in the first place.  A.S.L.

Professional Notes

We are saddened to report deaths of two important gay lawyers to
AIDS in recent weeks.  William M. ("Barnaby") Millard died from
AIDS Aug. 28.  He was a contributing writer to Law Notes,
specializing in AIDS law cases, and was also responsible for our
brief appearance in hyperspace, when he uploaded an edited version
of this newsletter to America On-Line.  Millard served as secretary
of the Ad Hoc Committee on AIDS of the Association of the Bar of
the City of New York, and was associated in practice with Whitman
Breed Abbott & Morgan.  * * *  Gene P. Schultz, a professor at St.
Louis University Law School, died in mid-September.  Schultz was
former chair of the Section on Gay and Lesbian Legal Issues of the
Association of American Law Schools, and a leader on gay and
lesbian issues within the law school community as well as in
Missouri, where he participated actively as a gay rights lobbyist,
organizer, and strategist.  He worked on amicus briefs in several
important cases, including a challenge to the Missouri sodomy law
during the 1980s.  He was the author of an important survey on the
status of gay issues in legal education, which was published in the
Journal of Legal Education.  He was also co-author of the first law
school text on AIDS.  A.S.L.

Lambda Legal Defense Fund announced the first Bon Foster Memorial
Lecture in Chicago Sept. 30.  Foster was a founder of the lesbian
and gay bar association in Chicago and left a bequest to Lambda
that was used to help start its Midwest Office.  The first Foster
lecturer is Mary Newcombe, a Los Angeles attorney who represents
Greta Cammermeyer and Dusty Pruitt in their challenges to the
exclusion of gays from military service.  Now in private practice,
Newcombe was the first Lambda staff attorney in its West Coast
Office.  A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 

9th Circuit: FBI Did Not Violate sec. 504 In Case of Physician With
AIDS

The U.S. Court of Appeals for the 9th Circuit ruled in Doe v.
Attorney General, 1994 WL 464803 (9th Cir. Aug. 30), that it was
permissible for the FBI to inquire into the AIDS-status of a
physician who was performing physical examinations on FBI agents. 
The court ruled that this was permissible under the information
available to the FBI in 1988, the time of the inquiry, so it is not
clear from the ruling that the court would find the inquiry to be
permissible today.  The opinion for the unanimous panel was written
by Chief Judge Clifford Wallace.   

Doe, who died in 1992, was a doctor and director of a health
facility in San Francisco that contracted to perform physical
examinations on agents.  Agents were required to undergo yearly
examinations, and Doe's salary was based in part on how many
examinations he performed.  In 1988 the FBI was informed by an
unnamed source that Doe had Kaposi's sarcoma.  An agent approached
the facility to inquire whether any member of the staff had AIDS or
K.S., whether there was a risk of transmission during physical
examinations, and if so, whether anything could be done to
alleviate that risk.  Doe met with the agent but refused to
disclose whether anyone at the facility had AIDS.  He stated that
even if someone did, there was no risk because of adherence to
standard infection control procedures.

The FBI decided that no agents would be scheduled for examinations
until it was determined whether Doe had a condition that would put
agents at risk.  Upon a second inquiry, a staff member reiterated
what Doe had said.  The FBI stated that it had lost confidence in
the facility because its concerns about the risks were not being
seriously addressed.  Doe alleged violations of sec. 504 of the
Rehabilitation Act of 1973 and of his privacy rights under the due
process clause of the 5th Amendment.

This was the second time the 9th Circuit heard the case.  The first
time it held that Doe could maintain private claims against the
U.S., but all but the claim for damages were rendered moot by Doe's
resignation from the facility.  Doe v. Attorney General, 941 F.2d
780 (9th Cir. 1991).  On remand, the district court found that the
FBI was not liable to Doe.  Doe by Lavery v. Attorney General, 814
F.Supp. 844, 849 (N.D. Cal. 1992). sec. 504 provides that "[n]o
otherwise qualified individual with handicaps. . . shall, solely by
reason of her or his handicap, be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance or under any program or activity conducted by an
Executive agency."  To establish a prima facie case, Doe had to
show that he was handicapped, that he was otherwise qualified for
the job, and that the FBI took adverse action solely because of his
handicap.  The first time the case was before the 9th Circuit, it
determined that Doe was handicapped because he had AIDS.  Thus the
remaining crucial element was whether he was otherwise qualified to
perform routine physical exams.

The court found that a person with an infectious disease is not
otherwise qualified if he poses a significant risk of communicating
the disease to others, and thus an individualized inquiry is
required into the nature of the risk and the probability that the
disease will be transmitted.  Additionally, it found that the
requisite knowledge in determining the risk would be based on what
the FBI knew at the time it took action in 1988, not everything it
has learned about AIDS since then.  The court noted that the FBI
was concerned about risk and prevention and requested information
on these subjects.  The FBI also considered a report from the
Centers for Disease Control which stated that the transmission of
HIV at health care facilities would be very rare, if at all, if the
facilities adhered to infection control procedures.  The court
found that it was reasonable for the FBI to want to find out
details of the facility's infection control procedures and the
risks associated with the exact procedures that Doe performed.  As
the information provided by Doe's facility was minimal, it was
impossible for the FBI to determine whether Doe was otherwise
qualified.  Thus the court held that the FBI was not liable under
sec. 504.

Doe claimed the FBI's actions were also based partly on their
desire to know whether Doe had AIDS, not just whether there was a
hypothetical risk taking into account the infection control
procedures followed by the facility.  But the district court stated
that the Act permits an employer to inquire about an individual's
disability if the information sought is relevant to his ability to
do the job or to the safety of patients or co-workers.  On appeal,
the court agreed it was relevant for the FBI agents to ask if Doe
had AIDS, because they did not receive sufficient responses to
their initial inquiries.  However, perhaps limiting the
precedential scope of this case, the court qualified that it might
not be permissible for someone to make such an inquiry today, due
to the advanced medical knowledge available. P.T.

On Reconsideration, California Appeals Court Dismisses AIDS Phobia
Suit Against Doctor

In Kerins v. Hartley, 33 Cal. Rptr. 2d 172, 27 Cal. App. 4th 1062
(Aug. 23), the California 2nd District Court of Appeal took a
second look at the case of a patient suing her doctor for emotional
distress because he performed pelvic surgery in 1986 without
revealing he was HIV+.  The doctor later revealed on television in
1988 that he had AIDS; he died in 1990.  The appeals court held
that the estate was not liable to the patient, finding that the
patient, who has since had one negative HIV test, did not have a
medically substantiated fear of contracting AIDS.

In an earlier ruling, 21 Cal. Rptr. 2d 621 (see Law Notes for
September 1993), the court of appeal had reversed the trial court's
grant of summary judgment in favor of the doctor, following the
approach of Faya v. Almaraz, 620 A.2d 327 (Md. 1993), which allowed
recovery for emotional distress during a reasonable "window period"
for anxiety between the time a patient learns of a health care
worker's HIV status and when she receives fear-relieving
information.  The court also held in its earlier ruling that a
legally cognizable action for battery was established by the
patient's assertion that her consent was conditioned on the
doctor's good health, which condition was intentionally violated by
the doctor's non-disclosure.  During pendency of the appeal to the
California Supreme Court, that court ruled in a fear of cancer
case, Potter v. Firestone Tire & Rubber Co., 76 Cal.4th 965 (1993),
and then directed that appeal court reconsider Kerins in light of
Potter.

The court of appeal read Potter as stating that a defendant has a
duty to any person who might foreseeably come into contact with its
hazardous waste to use care and comply with government regulations
on waste disposal, and that the defendant breached a legal duty to
plaintiffs by unlawfully depositing toxic waste in a landfill. 
Similarly, the court of appeal held that a doctor has an analogous
duty to any patient who might foreseeably come into contact with
his blood during surgery to use due care and comply with current
CDC guidelines for performance of exposure-prone procedures.  The
court noted that the 1986 CDC guidelines permitted a surgeon to
perform invasive procedures so long as appropriate barrier
precautions were used, and that those guidelines did not require
patient notification of the doctor's HIV status.  Thus, the court
held that the doctor did not violate the 1986 CDC guidelines, nor
did he breach a duty of care to the patient.

Further, the court of appeal read Potter as requiring a "more
likely than not" threshold to emotional distress claims arising out
of negligent exposure to HIV.  Thus, the court held that in the
absence of physical injury or illness, damages for fear of AIDS may
be recovered only if the plaintiff is exposed to HIV as a result of
the defendant's negligent breach of duty, and the plaintiff's fear
stems from a knowledge, corroborated by reliable medical or
scientific opinion, that it is more likely than not that the
plaintiff will become HIV+ and develop AIDS due to the exposure. 
When summary judgement was first granted, there remained only the
most speculative possibility that the patient would develop AIDS,
so under Potter no recovery for negligent infliction of emotional
distress was permitted.  The court also held that the plaintiff's
allegations failed to state a claim for intentional infliction of
emotional distress, finding the patient's fear of contracting AIDS
to be unreasonable as a matter of law.

Finally the court addressed the plaintiff's battery claim.  The
plaintiff had not asserted that her consent was expressly
conditioned on the doctor's good health, but rather that the
condition was clearly implied, and that the doctor had a heightened
duty of disclosure in light of the patient's pre-operative
questions about the risk of AIDS transmission from blood
transfusions and about the state of the doctor's health.  The court
found that the same limitations imposed on claims for oppressive,
fraudulent, or malicious conduct and intentional infliction of
emotional distress, where physical injury is absent, should also
apply to a claim for emotional distress damages on a claim of
battery, and thus the lack of a reasonable fear of contracting AIDS
rendered this claim invalid as well.  K.I.

Municipality's Repeal Of Permit For AIDS Residence Upheld in North
Carolina

A municipal zoning board may lawfully repeal the prior approval of
a building permit granted for the construction of a residence for
people with "`full-blown'" AIDS, on a determination by the board
that such people are not "handicapped" within the meaning of a
state statute designed to promote the development of residential
facilities for the disabled in existing neighborhoods.  Taylor Home
of Charlotte Inc. v. City of Charlotte, 1994 WL 484523 (N.C.App.,
Sept. 6).

The North Carolina Human Resources Department approved plaintiff's
application to construct a "family care home."  The state statute
authorizing such homes defined "handicapped" as those suffering
from any of a non-exhaustive list of illnesses but excluded
"mentally ill persons who are dangerous to others."  Furthermore,
state law provides that such family care homes be considered
residential facilities for purposes of local land use approval
processes.  Nevertheless, after a protest from local residents, the
Charlotte Zoning Board of Adjustment repealed the construction
permits granted by the municipal building department.  Testimony
before the Board from a real estate appraiser convinced the local
authority that the home would have "an adverse impact on the
adjacent properties" and their "marketability/expected prices." 
Traffic and pedestrian safety concerns were raised, as well as
neighbors' concerns over the disposal of bio-hazardous waste. 
Thus, Judge Lewis concluded, the neighbors would suffer some
"special damage" by virtue of the AIDS residence and were entitled
to relief.  A municipal ordinance defined group homes as "sheltered
living conditions for rehabilitation" of disabled persons. 
However, the court noted, the Board was neither arbitrary nor
capricious in determining that people with full-blown AIDS could
neither be "restored to live normal lives" nor "rehabilitated". 
And a group home in Charlotte must be "primarily" for
rehabilitation.  Furthermore, since a wide range of medical and
residential facilities would be required for people with full-blown
AIDS, the court concluded that the Board rightfully determined that
such a facility would more properly be described as a "nursing
home" or "health institution", which local ordinances prohibit in
residential neighborhoods.

Neither did the Board unlawfully conclude that people with
full-blown AIDS are not "handicapped" for purposes of family care
homes, held the court.  The state statute contemplates facilities
for people who can be "mainstreamed into daily living in a single
family zoned neighborhood."  However, Judge Lewis declared with no
elaboration, people with full-blown AIDS cannot be "mainstreamed"
in such a manner.  Despite state statutory references authorizing
services identical to those sought to be provided by plaintiff and
the specific mention of HIV treatments among those services, the
court concluded that people with "full-blown" AIDS were not
contemplated by the state legislature when it was trying to
providing residential stability for "handicapped persons."  R.B.

Limited Disclosure of HIV+ Status Held No Invasion of Privacy

An Indiana appeals court ruled Sept. 8 that disclosure of a
hospital patient's HIV status to some of the patient's co-workers
does not constitute invasion of privacy.  Doe v. Methodist
Hospital, 1994 WL 482310 (Ind. App., 1st Dist.).  Plaintiff John
Doe, a Postal Service employee, was admitted to the hospital
following a heart attack.  In the ambulance, Doe disclosed to the
paramedics that he was HIV+.  One of Doe's co-workers, Logan
Cameron, whose wife worked at the hospital, telephoned to inquire
about Doe's condition.  The wife examined Doe's confidential file,
and revealed to her husband that Doe was HIV+.  The husband later
told another co-worker, Cathy Duncan, who repeated the information
to two other co-workers (one of whom had already been told directly
by Doe in confidence).  Doe sued the hospital, the Camerons and
Duncan for invasion of privacy.  All defendants moved for summary
judgment, which was denied except with respect to Duncan.  Doe
appealed the summary judgment in favor of Duncan.

In an opinion by Judge Robertson, the court ruled that a claim for
invasion of privacy based on disclosure of a private fact required
that the defendant give the fact "unreasonable publicity."  The
court distinguished "publicity" for privacy purposes from the more
limited "publication" in defamation law, where communication to a
single third party is sufficient to establish liability.  Calling
the question one of first impression in Indiana, Robertson
consulted the Restatement (2nd) of Torts and cases from other
states to establish a test for publicity.  Relying on these
sources, Robertson stated that mere gossip, or disclosure to a
small group of persons, does not constitute "publicity."
"Publicity" requires communication "to the public at large, or to
so many persons that the matter must be regarded as substantially
certain to become one of public knowledge."  Ruling that the facts
of the case failed to meet this test, the court affirmed the trial
court's grant of summary judgment for defendant Duncan.

Dissenting, Judge Najam argued that the court erred in removing
from the jury the issue whether Duncan's disclosure of Doe's HIV
status to two co-workers constituted "publicity."  "Doe's co-
workers are a `public' with whom Doe has a special relationship and
to whom disclosure of his HIV positive status would prove
particularly embarrassing," observed Najam.  "Thus, where such a
special relationship exists between the plaintiff and those who
learn of the embarrassing facts about him, the number of persons to
whom the facts are disclosed is not dispositive."  While agreeing
with the court that the law should not premise liability on
harmless gossip, Najam insisted that it should be left to a jury,
and not decided on summary judgment, whether "applying contemporary
social norms, . . . a person who merely repeats the private fact
should be held liable for invasion of privacy." O.R.D. & A.S.L.

Suit Against Insurer Held Not Preempted by ERISA

Voting 2-1, the Court of Appeals of Oregon ruled Sept. 7 in Shaw v.
PACC Health Plan, Inc., 1994 WL 484187, that an employee with AIDS
should have been allowed to proceed on state law tort claims
against an insurance company that allegedly refused to insure an
employer's group after it found out the employee had AIDS.  A trial
judge had dismissed the claims, finding them preempted by the
Employee Retirement Income Security Act (ERISA).

Ronald Shaw worked as a waiter for Old Wives' Tales Restaurant in
Portland, Oregon.  In 1990, Holly Hart, owner of the restaurant,
decided to establish a health benefit plan for her employees, and
shopped around at various insurance companies, using a broker
employed by United Employer Benefit Corporation (UEBC) to assist
her.  In August 1990, Hart had all employees fill out health
questionnaires for an application to Blue Cross/Blue Shield.  Then
the broker secured a quotation for a lower price for coverage from
PACC Health Plan, Inc.  The broker changed the dates on the
questionnaires and submitted an application to PACC on January 2,
1991.  Hart and PACC had previously agreed that, assuming approval
of the application, coverage would date from January 1.  On January
8, 1991, while the application was still pending but had not yet
been approved, Shaw was hospitalized with pneumocystis.  A PACC
nurse who was visiting the hospital to pick up claim forms learned
of Shaw's diagnosis and informed PACC's underwriting supervisor. 
PACC subsequently turned down Hart's application for group
coverage, asserting that the questionnaires revealed too many
uninsurable conditions among Hart's employees.  Shaw filed a
variety of claims against Hart, UEBC and PACC.  He settled with
Hart, claims against PACC were dismissed by the trial court as
"preempted," and a jury ruled against Shaw on his negligence claim
against UEBC.  Shaw appealed the dismissal of the claims against
PACC.

In an opinion for the court, Judge Rossman found that there was no
ERISA preemption.  The court found that no ERISA-covered plan had
been established during the relevant time period because Hart was
unsuccessful in obtaining insurance coverage.  Shaw's suit was not
for a denial of benefits under an existing plan, but rather for a
variety of common law claims against PACC premised on PACC's
alleged misconduct in refusing to issue the insurance policy to
Hart's business.  As such, the court found that the policies
supporting ERISA preemption (having uniform national law governing
the operation of ERISA-regulated employee benefit plans) did not
apply to this situation.  Dissenting, Judge De Muniz argued that
Hart had indeed established a plan within the meaning of ERISA when
she made a promise to her employees to obtain health insurance and
outlined the broad contours of the plan.  Since Shaw's claims were
premised on PACC and Hart having had at least a preliminary
"agreement" regarding insurance coverage, from which PACC allegedly
improperly withdrew, De Muniz argued that Shaw's claim fell within
the policy of ERISA preemption.  A.S.L.

Court Allows Discovery of HIV Status, Sex Lives, of Potential
Witnesses in Discrimination Case

U.S. v. Morvant, 1994 WL 507448 (E.D.La. Sept. 14), is generating
plenty of pretrial motion practice decisions.  (See the March and
September issues of Law Notes.)  In this latest installment,
District Judge Carr denied a motion by the government to limit
discovery by Dr. Morvant, a dentist alleged to be discriminating
against HIV+ persons, with respect to the HIV status, sexual
orientation, and sexual histories of potential adverse witnesses. 
The Magistrate Judge to whom the motion was referred for decision
ruled that parties would be allowed to discover any information
about a potential witness that would be relevant evidence about
their "personal bias, prejudice or motive" in testifying, which was
held to include the kind of information the government sought to
exclude from discovery, although such information would be sealed
from public access upon the request of any witness.  On appeal to
the district judge, the magistrate's order was upheld.  The judge
ruled that the privacy interests of potential witnesses had to
yield to the fair trial rights of Dr. Morvant.  "Dr. Morvant is
charged with illegally discriminating against individuals because
of their HIV positive status.  Potential witnesses who are HIV
positive, or who may have had close personal or sexual
relationships with any of the aggrieved individuals, or who are
merely in a high-risk category for becoming HIV positive, may
believe that a judgment against the defendants will help to protect
them personally from future discrimination," wrote Carr, explaining
why such information would be relevant to the defendant for
impeachment purposes.  * * *  On the other hand, the N.Y. Appellate
Division, 1st Department, held in People v. Kavanaugh, 1994 WL
520916 (Sept. 20), a robbery case, that the "trial court did not
abuse its discretion in prohibiting the defendant from cross-
examining the complainant about his HIV status unless the defendant
first took the stand and testified to facts showing the relevance
of this fact."  The per curiam court opined that by ruling out such
questioning the trial court "properly discouraged undue
speculation, promoted clarity in the development of the proof, and
avoided a risk of undue prejudice to the complainant." A.S.L.

HIV Tort Litigation Notes



In Wadleigh v. Rhone-Poulenc Rorer, Inc., 1994 WL 457180
(U.S.Dist.Ct., N.D. Ill, Aug. 18), the plaintiff instituted a class
action suit on behalf of all hemophiliacs who were infected with
HIV as a result of using blood products tainted with the virus,
their spouses, guardians and personal representatives.  The
complaint alleged that members of the proposed class were infected
as a result of the failure of the named pharmaceutical companies to
screen for known diseases among blood donors (particularly paid
donors), that they failed to use available technology to sterilize
the blood products, and that they gave false assurances of safety
to the plaintiffs.  The National Hemophiliac Foundation was joined
as a defendant because, it was alleged, it gave similar unfounded
assurances.  The proposed class would encompass the 20,000
hemophiliacs in the U.S., of whom half had been infected and 2,000
had died by the time suit was filed in Sept. 1993.  In this
decision on the plaintiffs' motion to certify the class, the court
granted partial relief, ruling that all four requirements of Fed.
Rule 23(a) (numerosity of class, common questions of fact and law,
typicality of claims or defenses, and adequacy of proposed class
representative) were satisfied by the plaintiffs.  However, the
court indicated that it would only certify common negligence and
breach of fiduciary duty claims for the class representation, but
that it was denying class certification on claims of proximate
cause, product liability and breach of warranty, as these were
found to be claims where issues of fact and law that are unique to
each cause would predominate.  For the same reason, certification
of claims for punitive damages was also denied. S.K. * * * In a
lengthy discussion of privileged attorney-client communications,
the U.S. Court of Appeals for the 3rd Circuit reversed a
magistrate's order requiring disclosure in discovery of such
communications between various law firms and Rhone-Poulenc and its
subsidiary, Armour Pharmaceutical, manufacturer of a blood-clotting
medication implicated in HIV transmission during the early 1980s,
in ongoing litigation between the drug companies and their
insurance companies over whether the insurance companies will have
to cover the sorts of claims being litigated in Wadleigh, above. 
Rhone-Poulenc Rorer, Inc. v. Aetna Casualty & Surety Insruance,
1994 WL 451310 (Aug. 17).  When the insurance companies indicated
they would not honor these claims, the drug companies filed suit,
the main point of contention in the litigation being the knowledge
of the drug companies about their potential liabilities for HIV
transmission at the time they purchased insurance coverage.  The
court of appeals held that the drug companies had not waived
attorney-client privilege with respect to the legal advice they
received at the time (when RPR was contemplating purchase of Armour
from Revlon in the fall of 1985) when they filed suit against the
insurance companies.  A.S.L. 

The U.S. District Court, Northern District of Ohio, ruled April 18
in Zaccone v. American Red Cross, 1994 WL 485892, CCH Prod. Liab.
Rep.  13,938 (not officially published), that the blood banking
industry was not collectively negligent in its approach to the HIV
epidemic in the early 1980s.  District Judge Manos, granting
summary judgment in favor of the Red Cross in an HIV-transfusion
case from an April, 1984, surgery, rejected the plaintiff's
argument that a trial was necessary to determine whether the
standard of care adopted by the profession was inadequate as a
matter of law under the circumstances in which it was adopted. 
Refusing to follow the Colorado Supreme Court's opinion in United
Blood Services v. Quintana, 827 P.2d 509 (1992), in which the court
held that following the industry standard merely raised a
rebuttable presumption that defendant was not negligent, Manos
preferred to rely on several cases holding that the industry
"responded promptly" with prudent measures in light of contemporary
knowledge.  The court also rejected a variety of other claims by
the plaintiff.  A.S.L.

The Court of Appeal of Louisiana ruled June 30 that since a suit
against a hospital for alleged transmission of HIV is a strict
products liability action, the suit is not subject to time
limitations or medical review requirements of the state's Medical
Malpractice Act.  Cedotal v. Community Blood Center of Louisiana,
Inc., 1994 WL 477217 (La.App. 1st Cir.).  The hospital's status as
a health care provider did not prevent it being a "seller of blood"
responsible for the sale and use of a tainted blood product.  Judge
Watkins reaffirmed that "plaintiffs in a strict tort products
liability suit do not have to present their claim to a medical
review panel."  R.B.

On Aug. 25, the Appellate Court of Illinois joined a majority of
states in holding that to recover for intentional infliction of
emotional distress in a fear of AIDS case, one must prove actual
exposure to the virus.  Doe v. Surgicare of Joliet, Inc., 1994 WL
461796.  However, the facts of this case and a strong dissent by
Judge Barry suggest that there may be an exception to the rule when
it is impossible to prove actual exposure.  Jane Doe underwent
surgery at Surgicare.  Two and a half months later, she was
informed that an unnamed medical technician had accidentally stuck
him- or herself with the needle prior to giving Doe an injection. 
The technician was never identified, although her physician
informed Doe that she should undergo an HIV test.  She and her
husband both tested negative.  She sued Surgicare for intentional
infliction of emotional distress from her possible exposure to HIV. 
Judge Lytton, writing for the court, held that since Doe could not
show actual exposure to the virus she did not have a cause of
action.  Judge Barry, dissenting, took a different approach.  He
argued that in cases where the defendant's actions made it
impossible for the plaintiff to prove actual exposure to the virus,
it is illogical to require such proof.  Barry argued that under
these facts the test should be whether Doe's fear of contracting
AIDS was reasonable, a question for the jury.  Under this approach,
Doe might have recovered for emotional distress she suffered until
she received the negative result on her HIV test.  This approach
seems more realistic because AIDS testing procedures are not 100%
accurate and it may not be possible to prove actual exposure even
in cases where actual exposure has taken place.  T.V.L.

In Anastosopoulos v. Perakis, 644 A.2d 480 (Me. 1994), a seven-
Justice panel of Maine's Supreme Judicial Court considered the case
of Barbara Anastosopoulos and her six-year old son, Christopher. 
Barbara brought suit against her physician for negligent infliction
of emotional distress, "wrongful life," and "wrongful birth" due to
his failure to test the mother for HIV/AIDS prior to the child's
conception; after Christopher's birth, both tested positive for
HIV, and are now living with AIDS.  Under Maine's wrongful birth
and wrongful life statute, 29 M.R.S.A. sec. 2931, damages may be
recovered for the birth of an unhealthy child born as the result of
professional negligence. The trial court reported the question of
whether the plaintiffs' claims were cognizable under sec. 2931 to
the state supreme court, which "discharged" the report, refusing to
address the legal questions, concluding that it was too early to
decide the legal issues since many factual questions remained
unanswered.  The court stated that it may have to deal with these
issues in the future, but that any opinion in the case would at
this time be either premature or advisory in nature. C.B.R.

Connecticut Superior Court Judge Hadden ruled Sept. 1 that Julie
Rivera, who stuck herself with a hypodermic syringe while a guest
at Yale Inns, Inc., could maintain a negligence action against the
Inn, even though she had not tested positive for any blood borne
diseases.  Rivera v. Yale Inns, Inc., 1994 WL 495457.  Rivera
asserts injuries of anxiety symptoms, fear, mental anguish caused
by her belief that she may have contracted diseases including but
not limited to AIDS and hepatitis, need to take antidepressant
drugs, and need for future blood testing.  The Inn moved to
dismiss, noting Rivera's negative tests and lack of evidence that
the syringe was contaminated with anything dangerous.  "In this
case one of the plaintiff's claims of injury is that as a result of
the negligence of the defendant she was struck by a hypodermic
syringe and has been and will in the future be caused to undergo
blood tests to determine whether she has contracted blood borne
disease.  This is clearly an allegation of a claim upon which
relief can be granted," wrote Judge Hadden.  A.S.L.

Miscellaneous HIV Litigation Notes

The U.S. 1st Circuit Court of Appeals reversed the Puerto Rico
District Court and construed the Fair Housing Act to extend to
Jorge Suarez-Medina, defendant in a suit by a group seeking to
establish a group home for persons with AIDS.  Hogar Agua Y Vida en
el Desierto, Inc. v. Suarez-Medina, 1994 WL 518136 (Sept. 28). 
Suarez-Medina agreed to rent two houses located on an undivided lot
to the plaintiffs, but then reneged on the deal under neighborhood
pressure when word got out that the houses would be used as AIDS
residences.  The trial court accepted Suarez-Medina's argument that
he was exempt from coverage under the Fair Housing Act (which has
been construed, inter alia, to ban HIV-related housing
discrimination) because residential property owners who own fewer
than four single-family houses are exempt.  The court of appeals
disagreed, in an opinion by Circuit Judge Cyr, rejecting the
district court's holding that the home in which Suarez-Medina lived
could not be counted as one of the four, or that in order to be
counted a home must be on the rental or sale market. A.S.L.

North Carolina Superior Court Judge F. Gordon Battle issued a
preliminary injunction Aug. 31, barring the state from terminating
its anonymous HIV testing program.  ACT-UP Triangle v. N.C.
Commission for Health Services, No. CVS 5480 (Wake County).  See
BNA Health L. Rep., 9/15/94, p. 1261.  The Commission had announced
its intention to switch to confidential testing and contact tracing
as of Sept. 1.  ACT-UP sued, arguing that the Commission had an
obligation under state law to document the impact of the change,
and that it had suppressed data showing that the change would scare
people away from testing.  Stuart Fisher, ACT-UP's lawyer, claimed
that the Commission suppressed data showing that more people could
be found through the anonymous testing program than through the
partner notification program.  A.S.L.

In People v. Rodriguez, N.Y.L.J., Sept. 8, 1994 (p.23 col.2),
Justice Mazur of the N.Y. Supreme Court dismissed two criminal
charges of sale of a controlled substance in the third degree due
to the defendant's advanced stage of HIV illness.  The defendant,
an AIDS patient, is severely ill, unable to appear in court, and is
being treated in a hospice-like environment where terminally ill
defendants are cared for.  The court dismissed the case,
recognizing that further prosecution of this defendant would
"result in an injustice."  Due to the defendant's advanced stage of
illness, the likelihood that the indictments will never reach
trial, and the fact that the defendant could no longer be
considered a threat to the community, the court dismissed the case
"in furtherance of justice". The court justified the dismissal
pursuant to its discretionary authority under sec. 210.40 of the
Civil Practice Law.  C.B.R.    

U.S. District Judge Hutton (E.D. Penna.) ruled in Williams v. Hill,
1994 WL 494459 (Sept. 8) (not officially reported), that neither
the constitution nor any federal statute gives a prison inmate a
right to work while incarcerated, rejecting a 42 U.S.C. sec. 1983
claim brought by an HIV+ prisoner who says he was denied the
opportunity for a prison job due to his HIV status.  A.S.L.

In further pretrial sparring in Doe v. Kohn Nast & Graf, P.C., 1994
WL 517989 (E.D. Penna. Sept. 20) (not officially reported),
District Judge Gawthrop dismissed a portion of the second amended
complaint charging that Harold Kohn, a name partner of the law
firm, engaged in a conspiracy to discharge and defame the
plaintiff, an attorney with AIDS, and should be held individually
liable.  Gawthrop found that Kohn's actions were taken on behalf of
the firm, a professional corporation of which he is a principal;
under Pennsylvania law, "a corporation cannot conspire with itself,
not with its officers and agents."  Gawthrop refused to dismiss
claims against Kohn for invasion of privacy and defamation. 
Gawthrop also refused to strike a paragraph of the complaint
referring to Kohn's role in the firm.  A.S.L.

Upholding a court martial verdict, the U.S. Court of Military
Appeals ruled in U.S. v. Schoolfield, 40 M.J. 132 (Aug. 19), that
Kenneth A. Schoolfield, an HIV+ service member who had been warned
by his commander to use barrier contraceptives, had committed
aggravated assault and indecent acts (as a lesser-included offense
to a rape charge) by engaging in unprotected intercourse with
several women.  Although the intercourse was "consensual,"
Schoolfield did not reveal his HIV status to the women, and his
only attempt at protecting them from transmission was to withdraw
before orgasm.  None of the women tested HIV+.  Schoolfield argued
that since he had not transmitted HIV, he had not committed battery
or aggravated assault, since the sex was consensual and did not
result in any harm.  Rejecting this argument, the court found that
"the bodily harm" in this case was "unprotected sexual intercourse"
with an HIV+ person.  The court also rejected Schoolfield's
argument that he could not be found guilty of committing indecent
acts as a lesser-included offense of rape.  A.S.L.

A Travis County, Texas, District Court jury found Sept. 6 that the
City of Austin failed to afford reasonable accommodation to Mary
Moreno, an HIV+ city employee, and awarded her $259,589 in damages:
$109,793 in back pay, $75,000 for mental anguish, and $74,796 for
attorneys fees.  Moreno, a long-time well-respected employee,
learned she was HIV+ in 1987 as a result of a 1984 blood
transfusion.  After she told her supervisor at the Department of
Planning and Development, she began to receive unprecedented bad
work reviews and other harassment (returning from a sick day to
find her work-station relocated to a tiny office space with no
computer), and eventually resigned.  The city's defense, evidently
not believed by the jury, was that she was a "difficult" employee
who had problems with supervisors well before the Department
learned of her HIV status.  (Austin American-Statesman, Sept. 7).
A.S.L.

AIDS Law & Society Notes

Dentist David Acer: The Story That Won't Die!  Most of the panic
about hypothetical HIV transmission from health care workers to
patients can be traced to David Acer, the Florida dentist who died
from AIDS after allegedly infecting six patients.  Researchers from
the CDC found that the patients and Acer were infected with the
same strain of the virus, and hypothesized that he must have
transmitted it to them in the course of treatment.  Consternation
in Congress, the Kimberly Bergalis hearings, restrictive (and
widely flouted) CDC guidelines for HIV+ health care workers, and
numerous AIDS-phobia lawsuits against physicians (or their estates)
have followed.  Now, Dr. Leonard Horowitz, identified in news
reports as a "Harvard graduate researcher and authority on
behavioral science," asserts based on his own review of the CDC
files (including interviews with Acer and others) that Acer may
have deliberately infected his patients as "a vendetta against
federal health authorities," who "he believed infected homosexuals
with AIDS during an experimental hepatitis B vaccination program in
the late 1970s." (Reuters, Rocky Mountain News, Sept. 1)  Horowitz
concluded that Acer had the personality profile of a serial killer. 
"He was angry, just totally, violently angry," Horowitz told a
reporter.  His study is published in the periodical AIDS Patient
Care.  Time to rethink public policy on HIV-infected health care
workers yet again?  

Los Angeles Mayor Richard Riordan declared an "AIDS emergency"
Sept. 7 and asked the police department to allow unhindered
distribution of hypodermic syringes, which is otherwise against
state law.  Riordan said he acted because intravenous drug users
have become the fastest-growing group contracting HIV.  His action
met with consternation from neighborhood groups, which then
undertook citizen arrests of hypodermic distributors in their
neighborhoods. Clean Needles Now, the distributing group, then
moved its operation to the Hollywood Gay and Lesbian Center, as the
controversy over the mayor's order continued.  (Los Angeles Times,
Sept. 22; NY Times, Sept. 18). 

Will funds generated by Keith Haring's "Silence = Death" poster go
to charities designated by his estate or to a proposed AIDS hospice
in Florida?  Will potential funds generated by the unfinished "Andy
Mouse V" drawing go to establish a museum of Haring's art in the
Netherlands?  These burning questions are yet to be resolved by
N.Y. County Surrogate Renee Roth, who refused to grant summary
judgment to representatives of Haring's estate in litigation
brought by George Mulder, an alleged business partner of the late
artist.  Mulder asserts that he had enforceable agreements with
Haring as to both of these matters.  For details, see Estate of
Keith Haring, N.Y.L.J., 9/29/94, p. 28. A.S.L.

Correction on Insurance Story

Our report on pending IRS regulations to exempt from taxation the
payments terminally ill people may receive in advance under their
life insurance policies mischaracterized the scope of the proposed
regulations.  They would apply only to advance payouts from
insurance companies to their insureds, not to payments received
from third parties in exchange for assigning the right to collect
the face amount of the policy after the death of the insured (so-
called viatical settlements).  We also should emphasize that the
proposed regulations would require the insurer to determine that
the insured had a terminal illness expected to cause death within
12 months in order for the transaction to receive this favorable
tax treatment.  A.S.L.

PUBLICATIONS NOTED & ANNOUNCEMENTS

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Arriola, Elvia R., Gendered Inequality: Lesbians, Gays, and
Feminist Legal Theory, 9 Berkeley Women's L.J. 103 (1994).

Becker, Susan J., The Immorality of Publicly Outing Private People,
73 Oregon L. Rev. 159 (Spring 1994).

Finnis, John, Liberalism and Natural Law Theory, 45 Mercer L. Rev.
687 (Winter 1994) (more from the anti-gay moral philosopher who
testified in the Amendment 2 Case).

Fleischer, Stephen, Campus Speech Codes: The Threat to Liberal
Education, 27 John Marshall L. Rev. 709 (Spring 1994).

Goldberg, Suzanne B., and Bea Hanson, Violence Against Lesbians and
Gay Men, 28 Clearinghouse Rev. 417 (1994).

Klein, Sandra S., Sexual Freedom and Your Right to Privacy: A
Selective Bibliography, 13 Legal Reference Services Q. 113 (1994)
(covers publications through 1992).

Loewy, Arnold H., Distinguishing Speech From Conduct, 45 Mercer L.
Rev. 621 (Winter 1994).

McEvoy, Sharlene A., Employment Discrimination Based on Appearance,
45 Labor L. J. 592 (September 1994).

Meyer, Carlin, Sex, Sin, and Women's Liberation: Against Porn-
Suppression, 72 Texas L. Rev. 1097 (April 1994).

Stoddard, Tom, Looking Back at the Gay Rights Battles, 40 Rights
No. 2, 9 (Jul-Aug. 1994) (Nat'l Emergency Civil Liberties
Committee).

Williams, Kenneth, Gays in the Military: The Legal Issues, 28 U.
San Fran. L. Rev. 919 (Summer 1994).

Wintemute, Robert, Sexual Orientation Discrimination as Sex
Discrimination: Same-Sex Couples and the Charter in Mossop, Egan
and Layland, 39 McGill L.J. 429 (1994) (adapted from a chapter in
forthcoming book: Sexual Orientation Discrimination and
Constitutional Human Rights Law: The United States Constitution,
the European Convention on Human Rights, and the Canadian Charter
of Rights and Freedoms (Oxford, publication expected in 1995).

Student Notes & Comments: 



Berner, Nicole, Intent-Based Parenthood Held Inapplicable in Case
of Lesbian Mothers, 9 Berkeley Women's L.J. 213 (1994).

Brooks, Thomas D., First Amendment - Penalty Enhancement for Hate
Crimes: Content Regulation, Questionable State Interests and Non-
Traditional Sentencing, 84 J. Crim. L. & Criminology 703 (Winter-
Spring 1994).

Erwin, Denise Pino, Survivor Benefits Denied to Lesbian Life
Partner: Rovira v. AT&T, 817 F.Supp. 1062 (S.D.N.Y. 1993), 9
Berkeley Women's L.J. 209 (1994).

Hofmeister, Edith M., Women Need Not Apply: Discrimination and the
Supreme Court's Intimate Association Test, 28 U. San Fran. L. Rev.
1009 (Summer 1994).

Landau, David A., Employment Discrimination Against Lesbians and
Gays: The Incomplete Legal Responses of the United States and the
European Union, 4 Duke J. Comp. & Int'l L. 335 (Spring 1994).

McFarland, Jeffrey M., Constitutional Law: Penalty Enhancements for
Bigoted Beliefs, 45 Florida L. Rev. 743 (September 1993).

Pimentel, Frank T., The Constitution as Chaperon: President
Clinton's Flirtation With Gays in the Military, 20 J. of Legis. 57
(1994) (Notre Dame Law School) (argues that any attempt to end
anti-gay ban by executive order would be unconstitutional).

Book Reviews:



Berkowitz, Roger, Risk of the Self: Drucilla Cornell's
Transformative Philosophy, 9 Berkeley Women's L.J. 175 (1994).

Peck, Robert S., "Speech Acts" and the First Amendment, 20 NYU Rev.
L. & Social Change 667 (1993-94).

Specially Noted:

Volume 4 of the Australasian Gay and Lesbian Law Journal (1994)
includes the following articles: Anne Scahill, Can Hate Speech Be
Free Speech?; Ryan Takach, Gay and Lesbian Inequality: The Anti-
Vilification Measures; Kees Waaldijk, Standard Sequences in the
Legal Recognition of Homosexuality -- Europe's Past, Present and
Future; Charles Chauvel, New Zealand's Unlawful Immigration Policy;
John Mountbatten, Out of the Closet and Into the Ghetto; Phillip
Tahmindjis, Book Review -- Homosexuality: A European Community
Issue. * * * A revised and expanded edition of The Other Side of
the Closet, by Amity Pierce Buxton, has been issued in paperback by
John Wiley & Sons, Inc.  What was already a valuable resource for
attorneys whose practice includes lesbian and gay family law has
been made even more valuable by the integration of many additional
interviews, this time of children of gay parents as well as non-gay
spouses. * * * 1 Cardozo Women's L.J. No. 2 (1994) features a
Women's Annotated Legal Bibligraphy that includes sections on AIDS
and "Gay Rights." * * * The College and University Personnel
Association published a case study on Stanford University's
decision to offer health benefits to gay and lesbian and unmarried
heterosexual couples.  The report, titled Domestic Partner
Benefits: A Case Study, is available for $20 from the Association
at 1233 20th St., N.W., Suite 301, Washington, D.C. 20036.

Symposia:

Symposium on John Rawls's Political Liberalism, 69 Chicago-Kent
L.Rev. No. 3 (1994).

AIDS & RELATED LEGAL ISSUES: 

Appleby, Kristyn S., and Joanne Tarver, Confidentiality of Medical
Records, 17 Trial Diplomacy J. 237 (Oct. 1994).

De Ville, Kenneth A., Nothing to Fear But Fear Itself: HIV-Infected
Physicians and the Law of Informed Consent, 22 J. L. Med. & Ethics
163 (Summer 1994).

Essex, Max, Confronting the AIDS Vaccine Challenge, 97 Technology
Rev. No. 7, 22 (Oct. 1994).

Hermann, Donald H.J., Commentary: A Call for Authoritative CDC
Guidelines for HIV-Infected Health Care Workers, 22 J. L. Med. &
Ethics 176 (Summer 1994).

Karns, M. Elizabeth, Understanding Epidemiological Evidence, 30
Trial No. 9, 46 (Sept. 1994).

Salbu, Steven R., Regulation of Drug Treatments for HIV and AIDS:
A Contractarian Model of Access, 11 Yale J. Reg. 401 (Summer 1994).

Wasson, Robert P., Jr., The AIDS Crisis as an Impetus to Law Reform
in the United States and Kenya, 17 Suffolk Transnational L. Rev. 1
(Winter 1994).

Student Notes & Comments:

Beane, Dorothea, AIDS Crisis and the Health Care Community: Public
Concerns Triggering Questionable Private Rights of Action for
Emotional Harms and Legislative Response, 45 Mercer L. Rev. 633
(Winter 1994).

Hartog, Ross R., The Psychological Impact of AIDS on Real Property:
A Real Estate Broker's Duty to Disclose, 36 Arizona L. Rev. 757
(1994).

Lumpkin, Edward Benedict, Recovery of Emotional Distress Damages in
AIDS-Phobia Cases: A Suggested Approach for Virginia, 51 Wash. &
Lee L. Rev. 717 (Spring 1994).

Shahvari, Mandana, AfrAIDS: Fear of AIDS as a Cause of Action, 67
Temple L. Rev. 769 (Summer 1994).

Book Reviews:

Charny, David, Economics of Death, 107 Harv. L. Rev. 2056 (June
1994) (devastating critique of Philipson & Posner's Private Choices
and Public Health: The AIDS Epidemic in Economic Perspective).

Symposia:

Women and HIV: Breaking the Silence, 9 Berkeley Women's L.J.
(1994): Introduction and Brief Commentaries on Living With HIV,
HIV-Positive Women in Prison, The Politics of Statistics, and Legal
Needs of Women With HIV.

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.