LESBIAN/GAY LAW NOTES
December 1994
Lesbian and Gay Law Association of Greater New York
Editor in Chief: Arthur S. Leonard, NY Law School
57 Worth Street, New York, NY 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 Damslet, Esq., New York; Paula Ettelbrick, Esq., New York;
Steven Kolodny, Esq., New York; Todd V. Lamb, Esq., New York;
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.

Voters In Idaho and Oregon Narrowly Reject Anti-Gay Initiatives

Although a majority of the national electorate voted to elect
enough Republican candidates to give the G.O.P. control of both
houses of Congress for the first time in more than 40 years and
increase the number of governorships and state legislative houses
under Republican control, lesbian and gay candidates and issues
fared relatively well in the Nov. 8 elections.  Most importantly,
both state-wide anti-gay initiatives failed, although the margins
of defeat were small.  The final vote on Idaho's Proposition 1
was 202,601 yes to 205,699 no, a spread of about one percent.  In
Oregon, the latest figures we obtained on Measure 13, with almost
all the 300,000 absentee ballots having been counted, were
583,842 yes, 618,864 no -- a smaller margin than the 47% to 53%
reported based on voting totals on election day.  Oregon voters
also defeated other ballot measures that potentially threatened
gay rights, including an effective repeal of the Oregon
constitution's broad protection for free speech and press.

There were three local anti-gay initiatives: in Alachua County,
Florida, and in two rural southern Oregon counties.  In Alachua,
there were actually two ballot measures; one to repeal a county
gay rights ordinance, which passed with 57% of the vote, and one
to bar future enactment of such measures, which passed by 59%. 
In the Oregon counties, the measures passed by substantial
margins.  Such local measures in Oregon are presently
unenforceable by virtue of a state law passed last year.  A
lawsuit was filed a week after the vote to invalidate the Alachua
County measure.

The Oregon Citizens Alliance and the Idaho Citizens Alliance
announced efforts to place similar measures on the ballot next
year, and there were reports of the formation of an Ohio Citizens
Alliance intending to propose a measure in that state.  Leaders
of the anti-gay campaign in Alachua County announced an effort to
mount similar challenges to gay rights ordinances throughout
Florida.  (See related story below.)

Every openly lesbian or gay federal or state legislator up for
re-election won, including U.S. House incumbents Barney Frank and
Gerry Studds, both Democrats, and Steve Gunderson, a Republican
who recently came out, and state legislators Deborah Glick (New
York), Tammy Baldwin (Wisconsin), Dale McCormick (Maine), Karen
Clark (Minnesota), Cal Anderson (Washington), Will Fitzpatrick
(Rhode Island), Glen Maxey (Texas), George Eighmey, Gail Shibley
and Cynthia Wooten (Oregon).  Most notably, openly lesbian or gay
legislators were elected for the first time in California (Sheila
Kuehl), Arizona (Ken Cheuvront), and Missouri (Tim Van Zandt),
and in Oregon, not only were several openly lesbian or gay
incumbents re-elected, but Chuck Carpenter became perhaps the
nation's first openly gay Republican elected to a state
legislature.  San Francisco experienced a "lavender sweep," with
two lesbian incumbents, Susan Leal and Carol Migden, re-elected
to the Board of Supervisors, to be joined by openly-gay Tom
Ammiano, openly gay candidates also being elected to the
Community College Board, and a ballot measure approving domestic
partnership recognition for city pension purposes winning voter
approval.

In judicial elections of openly gay candidates, Marcy Kahn was
elected to the N.Y. Supreme Court in N.Y. County, Tom Chiola was
elected to Cook County (Ill.) Court, Teri Schwartz was elected to
Los Angeles County Superior Court, Bonnie Dumanis was elected to
San Diego Municipal Court, and Victoria Sigler was elected to
Dade (Fla.) County Court.

Two openly gay statewide candidates, Tony Miller in California
(Secretary of State) and Karen Burstein in New York (Attorney
General), were narrowly defeated, even though both had been ahead
in polls throughout their races.  Apparently, the same phenomenon
may occur with openly lesbian or gay candidates as with African-
American candidates: substantial leads in polls may distort the
true size of support, especially when the media carry suggestions
that opposition to an openly gay candidate reflects voter
homophobia.  In both cases, it was significant that openly-gay
candidates were able for the first time to obtain major party
nominations and wage credible campaigns, attracting support from
close to half the voters. 

For tea-leaf readers on developments in Hawaii, where a lawsuit
is pending on same-sex marriage, Ben Cayetano emerged as victor
in a 4-candidate race for governor.  Cayetano has endorsed same-
sex marriage in the following respect: all couples, regardless of
gender, should be entitled to equal recognition by the state, and
"marriage," as such, should be left to religious ceremonies. * *
* See below for other initiative developments.  A.S.L.

En Banc D.C. Circuit Rejects Steffan Challenge to Old Military
Policy

Voting 7-3, the full U.S. Court of Appeals for the District of
Columbia Circuit affirmed the district court's summary judgment
against former Naval academy cadet Joseph Steffan in his
challenge of military policies under which he was forced to
resign from the Academy in 1987 after saying he was gay.  Steffan
v. Perry, 1994 WL 652249 (Nov. 22).  The split was strictly along
political lines; seven judges appointed by Ronald Reagan or
George Bush voted to affirm the summary judgment, while two
judges appointed by Jimmy Carter and one judge appointed by Bill
Clinton voted to reverse.  The en banc decision vacated a ruling
from last year by a three-judge panel, consisting entirely of
Carter appointees, which had reversed the district court.  See
Steffan v. Aspin, 8 F.3d 57 (Nov. 16, 1993).  

In his decision for the court, Judge Silberman disagreed with the
recent decision by the 9th Circuit in Meinhold v. Dept. of
Defense, 34 F.3d 1469 (Aug. 31), in which that court held that a
plain statement of sexual orientation ("I am in fact gay") was
not equivalent to declaring that the speaker had engaged in gay
sex in the past or intended to do so in the future.  Steffan's
forced resignation from the Naval Academy occurred a few months
before his scheduled graduation (in anticipation of which
Congress had already approved his commissioning in the Navy),
when rumors of an investigation of his sexual orientation led him
to confide in a chaplain that he was gay, and ultimately to
reveal that he was gay in a meeting with the Commandant of the
Academy and at a hearing of a Performance Board convened to
consider his case.  Steffan never made any statement about having
engaged in sexual activity or intending to do so.

In light of existing precedents in the D.C. Circuit in equal
protection cases involving gay plaintiffs, the result reached by
the en banc majority was, perhaps, predictable.  In the mid-
1980's, the circuit rejected a challenge to the ban by James
Dronenberg, discharged for having sex with an enlisted man in
military barracks.  In that pre-Hardwick case, the court rejected
the argument that the discharge violated the right of privacy,
and made short shrift of any equal protection challenge. 
Dronenburg v. Zech, 741 F.2d 1388, rehearing en banc denied, 746
F.2d 1579 (D.C.Cir. 1984).  After the Hardwick decision, holding
that the right of privacy did not cover the right of "homosexuals
to engage in sodomy," the D.C. Circuit held in Padula v. Webster,
822 F.2d 97 (1987), that a necessary implication of Hardwick was
that government policies discriminating against gays should be
evaluated by the least demanding test of judicial review:
rational basis.  In Heller v. Doe, 113 S.Ct. 2637 (1993), the
Supreme Court significantly vitiated the rational basis test by
apparently removing any burden on the government to prove the
rationality of a discriminatory policy; this, in combination with
traditional judicial deference to professional judgments by
military commanders, meant that only the most sympathetic of
judges was likely to rule in Steffan's favor.  The extremely
conservative judges named to the D.C. Circuit during the Reagan-
Bush years are unlikely candidates for such a role.

Given the D.C. Circuit precedents, Steffan's attorney, Marc
Wolinsky, had to give away from the start some arguments that
might be raised in other circuits.  The starting point for
Silberman's analysis was that Steffan conceded the right of the
military to exclude anybody who engages in gay sex or intends to
engage in gay sex, and conceded that sexual orientation is not a
suspect classification, so the rational basis test is to be used. 
Actually, the 9th Circuit held no differently in Meinhold.  The
crux of the case, however, was whether it is rational for the
military, in furtherance of its concededly constitutional policy
of excluding such sexually active gays, to toss out anyone who
says he or she is gay or lesbian.  This was where the circuits
parted company.  

As Silberman explained: "Whether a certain course of conduct is
rational does not depend solely upon the degree of correlation
that exists between a surface characteristic and a corresponding
hidden trait.  For the question whether the degree of correlation
justifies the action taken -- i.e., whether it is rational --
necessarily depends on one's assessment of the magnitude of the
problem the action seeks to avoid.  The military is entitled to
deference with respect to its estimation of the effect of
homosexual conduct on military discipline and therefore to the
degree of correlation that is tolerable.  Particularly in light
of this deference, we think the class of self-described
homosexuals is sufficiently close to the class of those who
engage or intend to engage in homosexual conduct for the
military's policy to survive rational basis review.  Because
removing from the military all those who admit to being
homosexual furthers the military's concededly legitimate purpose
of excluding from service those who engage in homosexual conduct,
Steffan's argument at bottom must be based on the notion that the
classification drawn by the military is impermissibly
over-inclusive -- that the military may not presume that all
admitted homosexuals will engage in homosexual conduct because
some homosexuals would not.  However, courts are compelled under
rational-basis review to accept a legislature's generalizations
even when there is an imperfect fit between means and ends.  A
classification does not fail rational-basis review because it `is
not made with mathematical nicety or because in practice it
results in some inequality.' `The problems of government are
practical ones and may justify, if they do not require, rough
accommodations -- illogical, it may be, and unscientific.'
Heller, 113 S.Ct. at 2643. . ."

The 9th Circuit in Meinhold, by contrast, emphasized that the
American legal tradition rejects imputing an intention to violate
the law to anybody who has not clearly indicated such an
intention.  Since military law forbids engaging in homosexual
conduct, the military should not assume solely on the basis of a
person's announced sexual orientation that he or she intends to
violate military regulations.  So Judge Wald argued in dissent,
echoing the 9th Circuit majority.  But Silberman dismissed this
argument as irrelevant due to the context; Steffan was not being
court martialed prosecuted for sodomy, he was merely being forced
to leave the Naval Academy and denied a career in the service. 
For Silberman, context is all; this was, in essence, an
employment case, and Silberman argued that in the sphere of civil
litigation over employment decisions, the due process concerns
relevant to a criminal prosecution were not appropriate.  He was
particularly dismissive of the string of district court decisions
that have recently held the military policy unconstitutional,
characterizing them as "an undisciplined rebellion against the
governing constitutional doctrine," and, in a sly footnote,
points out that Lambda Legal Defense Fund, representing Steffan
in this case and arguing that the court should recognize a
distinction between status and conduct, filed an amicus brief in
Hardwick that "asserted that the `regulation of same sex behavior
constitutes the total prohibition of an entire way of life'
because homosexuality is inexorably intertwined with `homosexual
conduct.'" (See fn.11).  

Silberman also wrote, but this time only on behalf of a plurality
of the court, that Steffan did not have standing to challenge the
Department of Defense directives on homosexuality, using an
argument so convoluted that he lost several of his Republican
allies (who filed partial dissents on the point).  Wald's strong
dissenting opinion focused on rebutting Silberman's arguments and
reiterating the holding of the 3-judge panel.

Now the great debate, which must be conducted quickly: should
Steffan petition the Supreme Court for certiorari?  It is clear
that the government will not bring this issue to the Supreme
Court right now, as just days after the D.C. Circuit's opinion
was issued the Justice Department announced there would be no
certiorari petition in the Meinhold case.  (See New York Times,
Nov. 29: "U.S. Drops Effort to Oust a Gay Sailor".)  Since the
9th Circuit upheld the old policy, narrowly construing it to
require an express manifestation of intent to engage in
homosexual sex acts to justify a discharge without offending 1st
Amendment principles, the Administration determined as a tactical
matter that Meinhold should be allowed to continue serving (as he
has for many months under the district court's order), so long as
he makes no new statements about his sexual orientation, under
the current "don't ask, don't tell" policy.  Is it time for the
gay legal movement to bring this issue to the Court?  No decision
on appealing had been announced as we went to press.  * * * 
Senator Phil Gramm (R.-Texas) told an NBC interviewer that the
new Republican majority in Congress would attempt to reinstate
the former military policy excluding all gays from service,
regardless of whether they announced their sexuality publicly. *
* * In a stunning breakthrough, a Navy board of inquiry has for
the first time under current policies recommended retention of an
openly-lesbian service member.  On Dec. 1, a board sitting in San
Francisco unanimously voted to recommend retention of Reserve Lt.
Zoe Dunning, who publicly stated that she is a lesbian. 
Following the reasoning of the 9th Circuit in Meinhold, Captain
Thomas Berns, senior member of the board, said the board decided
that a declaration by Dunning that she is a lesbian does not by
itself mean that she engages in lesbian conduct.  Take that, D.C.
Circuit!  A.S.L.

LESBIAN/GAY LEGAL NEWS 

Supreme Court Reads Scienter Requirement Into Federal Child Porn
Law

The U.S. Supreme Court decided by 7-2 vote that it should
preserve the constitutionality of the Protection of Children
Against Sexual Exploitation Act of 1977 by finding an
unarticulated requirement that the prosecution prove that the
defendant knew or had reason to know that one or more of the
performers depicted in alleged child pornography was a minor. 
U.S. v. X-Citement Video, Inc., 1994 WL 662620 (Nov. 29).  The
statute provides penalties for "knowingly" transporting,
shipping, receiving, distributing or reproducing a visual
depiction that "involves the use of a minor engaging in sexually
explicit conduct."  18 U.S.C. secs. 2252(a)(1) and (2).  Rubin
Gottesman, owner and operator of X-Citement Video, Inc., was
arrested in a sting operation by federal agents, when he sold
them sex videos featuring Traci Lords, who was under 18 when the
videos were made.  Gottesman was convicted, but on appeal the 9th
Circuit found the statute facially unconstitutional, holding that
because of the placement of the word "knowingly" it appeared that
somebody who had no idea that a particular video featured
underage performers could still be convicted if they had
"knowingly" sold the video.  Although such a reading is
consistent with the literal wording of the statute, Chief Justice
Rehnquist wrote for the Court that Congress could not have
contemplated such an absurd result.  Rehnquist referred to a
"presumption" that criminal statutes have appropriate scienter
requirements.  Referring to other cases in which the Court had
saved statutes by construing them to contain implied scienter
requirements, Rehnquist held that this statute should be
similarly construed.  Reviewing the legislative history, he found
that it was somewhat unclear exactly what Congress intended by
way of scienter requirements in the statute, but that finding a
scienter requirement with respect to knowledge that underage
performers were used was not inconsistent with that history, and
was consistent with various prior holdings by the Court in child
porn cases.  Concurring, Justice Stevens noted that a common
sense reading of the statutory language would reach the same
result.  Dissenting, Justices Scalia and Thomas contended that
interpolating a scienter requirement violated the language of the
statute, and that Rehnquist had used prior cases to support
propositions for which they in fact provided no support.  "I can
neither understand nor approve of the disposition urged by the
United States before this Court and adopted today," wrote Scalia,
"which not only rewrites the statute, but (1) rewrites it more
radically than its constitutional survival demands, and (2)
raises baseless constitutional doubts that will impede
congressional enactment of a law providing greater protection for
the child-victims of the pornography industry."  A.S.L.

3rd Circuit Revives Challenge to New Jersey Rights Law

In Presbytery of New Jersey of the Orthodox Presbyterian Church
v. Florio, 1994 WL 638864 (Nov. 16), the U.S. Court of Appeals,
3rd Circuit, has revived the lawsuit brought by the Orthodox
Presbyterian Church and others against the New Jersey Law Against
Discrimination after passage of the sexual orientation amendments
in 1993.  The Church and a minister sued the state to prevent
enforcement of the law against them as religious institutions and
leaders.  The lower court dismissed the action on the ground that
it was not ripe for review.  At issue on appeal was the section
of the law prohibiting aiding, abetting, inciting, compelling or
coercing others into violations of the prohibition against sexual
orientation discrimination.  The religious plaintiffs claim that
this provision infringes their constitutional rights insofar as
they speak out against homosexuality outside the confines of
their churches.  The 3rd Circuit, relying on the state's
assurances that the law would not be enforced against religious
institutions which are clearly exempt, upheld the dismissal of
the case as against the institutional plaintiffs.  However, the
court ruled that there existed a ripe controversy between the
individual minister and the state because of the minister's
arguable claim that the provision infringes his speech rights. 
One judge dissented, arguing that the minister alleged standing
as "the pastor of the Orthodox Presbyterian Church of New Jersey"
and not as an individual.  As such, he too would be exempt,
resulting in a case that is not ripe for review by the court. 
The state has filed a motion for rehearing en banc.  P.L.E.

Mass. High Court Sustains Conviction for Murder of Gay Man

The Massachusetts Supreme Judicial Court unanimously ruled Nov.
21 that an aggressive homosexual solicitation did not normally
warrant a murderous response.  Commonwealth v. Pierce, 419 Mass.
28, 1994 WL 667993.  Kevin Pierce was convicted of murder in the
first degree by joint venture based on the theories of deliberate
premeditation and extreme atrocity or cruelty.  He and two male
friends went to the victim's home after defendant called the
victim, David McLane, whom he had known approximately six months,
looking to "party." (The defendant testified at trial that the
victim had made homosexual advances in the past, but that
defendant had brushed them off and not been bothered by them.) 
The men sat around drinking beer, whiskey, and rum and watching
porn films.  Then the defendant's two friends left to buy
cigarettes.  While they were gone, according to defendant, McLane
"grabbed the defendant's testicles and said, `You know you want
it.'"  Defendant kicked McLane and, when his friends returned,
they attacked him, choking, beating, slitting his throat and
sticking knives into his head.  As McLane moaned, defendant
grabbed him and said, "God forgive you for all your sins," and
kicked him in the head, then kneeling in his blood and praying. 
Before fleeing McLane's apartment, the three men straightened
things up and grabbed some valuables.  They tried to steal
McLane's car but couldn't get it to start, so fled on foot.  At
trial, defendant sought instructions of voluntary or involuntary
manslaughter, or nonfelony battery manslaughter, which were
denied by the trial judge.  These denials, together with some
other objections to the jury instructions, were the basis for the
appeal.

In his opinion for the court, Justice Nolan first addressed the
voluntary manslaughter issue.  Under Massachusetts precedents,
this charge would only be available if the victim's conduct
"would have been likely `to produce in an ordinary person such a
state of passion, anger, fear, fright, or nervous excitement as
would eclipse his capacity for reflection or restraint.'" (citing
Commonwealth v. Walder, 380 Mass. 724 (1980)). "In the present
case, the victim's invitation, `You know you want it,' and the
grabbing of the defendant's testicles, was not provocation
warranting a voluntary manslaughter instruction.  Although the
gesture was perhaps offensive, it was not the type of behavior
that would provoke a reasonable person into a homicidal
response."  Thus the refusal of the instruction was proper.  The
involuntary manslaughter instruction was also properly rejected,
held Nolan.  This is available in cases involving wanton and
reckless conduct causing death, or unintentional killing
resulting from a battery that the defendant should have known
endangered human life.  "Given the brutality and force" of the
victim's injuries, Nolan held that the requested charge was not
warranted, also rejecting the defendant's contention that his
drunken condition would support a finding that he lacked the
"knowledge" that his actions created a plain and strong
likelihood of death, pointing to precedential holdings that
malice is not a necessary element of homicide.  Further, Nolan
pointed out that the basic defense presented in this case was
alibi, not that the wounds inflicted were unintentional.  Nolan
also found that the trial record failed to support a charge of
nonfelony battery manslaughter.  "Because stabbing the victim
with a knife constitutes assault and battery by means of a
dangerous weapon, a felony, an instruction on nonfelony battery
manslaughter was not available to the defendant."  The court also
dismissed the other objections, sustaining the conviction. 
A.S.L.

Sharply Divided NY Appellate Court Grants Sperm Donor's Petition
for Filiation; Orders New Hearing on Visitation

A sharply divided panel of the NY Appellate Division, 1st
Department, ruled Nov. 17 that Thomas Steel, a gay man who
donated sperm to Robin Young and Sandy Russo, a lesbian couple,
under an oral agreement that he would not assert parental rights
with respect to Ry, the child born to Young, was entitled to an
order of filiation with the child under NY Family Court Act sec.
542.  Thomas S. v. Robin Y., 1994 WL 644249.  Reversing a
decision by NY County Family Court Judge Edward Kaufmann (599
N.Y.S.2d 377 [1993]), the court remanded the case to a different
family court judge for a hearing on Steel's petition for
visitation rights.  The decision drew a sharp dissent from
Justices Betty Weinberg Ellerin and Ernst Rosenberger, in an
opinion by Ellerin.  The court's decision was announced in a per
curiam opinion on behalf of Justices Israel Rubin, Eugene
Nardelli and Milton Williams.  Steel argued his own appeal,
having been represented at the trial level by Emily Olshansky. 
Young is represented by Peter Bienstock.  Several amicus briefs
were filed on the appeal.  [Note: The opinions refer to the
parties by first name and last initial, but articles in the New
York Times (Nov. 19) and New York Law Journal (Nov. 18) used
their full names in reporting the decision.]

Young and Russo each had children using sperm from known gay male
donors, with whom they agreed that the donors would not assert
parental rights or have parental obligations.  When Russo's
child, Cade, the first-born, started asking questions about her
father, the mothers contacted both sperm donors and introduced
them to the two young girls.  In the case of Steel, a
relationship developed whose character was the subject of intense
dispute during the lengthy trial.  Steel testified to
approximately 26 visits over a period of six years, some lasting
just a few days, others as long as two weeks.  Young testified
that the total number of days of contact during that period was
significantly fewer than claimed by Steel.  According to the
appellate court, "Whatever the figure, it appears that all
parties concerned developed a comfortable relationship with one
another.  Photographs included in the exhibits depict a warm and
amicable relationship between petitioner and Ry, and there are
numerous cards and letters from Ry to petitioner in which she
expresses her love for him."  

In 1990, Steel asked Young for permission to take Ry and her
older sister, Cade, to see his parents.  "It seems that
petitioner felt awkward about introducing [Russo] and [Young] to
his parents."  Young and Russo objected to this proposal.  "It
was apparently during the course of these negotiations that
petitioner revealed his desire to establish a paternal
relationship with Ry.  [Young] and [Russo] regarded this as a
breach of their oral agreement, insisting that visitation
continue on the same terms as over the past six years, viz., with
their supervision.  They also rejected petitioner's suggestion to
consult a family counselor or mediator.  Unable to resolve his
differences with [Russo] and [Young] and unable to see his
daughter for a period of several months, petitioner moved, by
order to show cause, for an order of filiation and for
visitation."  

The Family Court found based on blood tests that Steel was the
genetic father of Ry, but held that he was estopped from seeking
a filiation agreement, based on the original agreement under
which he donated sperm, his failure to assert parental rights,
the expressed wish of Ry not to have further contact with Steel,
the findings of the court-appointed psychiatrist, and the
recommendations of the law guardian appointed to represent Ry's
interest.  "The court characterized petitioner as an `outsider
attacking her [Ry's] family and refusing to give it respect',
concluding that `a declaration of paternity would be a statement
that her family is other than what she knows it to be and needs
it to be' and, therefore, `would not be in her best interests.'" 
The court also said that even if filiation were granted, it would
deny visitation.

The appellate division majority decided that the estoppel theory
was not available to Young on these facts, and that sec. 542
mandates an order of filiation where the petitioner is shown to
be the genetic father.  According to the court, "[t]he legal
question that confronts us is not, as Family Court framed it,
whether an established family unit is to be broken up.  Custody
of the child is not now, and is unlikely ever to be, an issue
between the parties.  Rather the question is whether the rights
of a biological parent are to be terminated.  Absent strict
adherence to statutory provisions, termination of those rights is
in violation of well established standards of due process."  In
the absence of an order of filiation, Steel would lack standing
under NY law to petition for visitation.  The court's opinion
devoted significant effort to refuting the various arguments of
the dissent as to why the visitation process should be aborted at
the outset by denial of filiation.

The appellate court was particularly dismissive of the argument
that allowing the case to go to a hearing on the merits on
visitation would be psychologically harmful to Ry: "Petitioner is
portrayed by the dissent as the villain of this case for having
the temerity to request that Ry and her sister accompany him on
an unsupervised visit to meet his parents, causing a `rift' and
precipitating this litigation.  The record, however, indicates
that it was Robin Y. and Sandra S. who opposed this visit and
does not reflect any initial resistance on the part of Ry.  It
was only some period of time after Robin Y. and Sandra S. refused
petitioner any further visitation with his daughter that Ry
developed overt animosity towards the man she had called `Dad'
and regarded with great affection. . .  The apparent manipulation
of an innocent child's affections and the obvious damage wreaked
upon the once harmonious relationship with her father do not
deter the dissent from the view that the child's `haunting fear'
of being taken away from `the woman whom she has consistently
thought of as her second parent' must have been instilled by
petitioner.  Whether Ry will come to regret the poisoning of her
formerly amicable relationship with her father is beyond the
meager ken of a court of law and must be consigned to the
conscience of whoever must abide the consequences.  It remains to
be seen whether petitioner's is the only parent-child
relationship to be damaged by this dispute."  

The court stressed that Steel never sought custody, and that the
dissent's discussion of this issue was in the court's view
irrelevant to disposition of the filiation petition.  "It is
distressing that petitioner, who seems to have exhibited
sensitivity and respect for the relationship between respondent
and her domestic partner, is proposed to be compensated for his
understanding by judicial extinguishment of his rights as a
father.  Such a result is offensive to the Court's sense of
equity.  Moreover, such an injustice hardly serves to promote
tolerance and restraint among persons who may confront similar
circumstances.  It discourages resolution of disputes involving
novel and complex familial relationships without resort to
litigation which, ideally, should only be pursued as a last
resort."

"Family Court's disposition is no more compelled by the equities
of this matter than by the law," insisted the majority.  "The
notion that a lesbian mother should enjoy a parental relationship
with her daughter but a gay father should not is so innately
discriminatory as to be unworthy of comment.  Merely because
petitioner does not have custody of his daughter does not compel
the conclusion, embraced by the dissent, that he may not assert
any right to maintain a parental relationship with her.  While
much is made by Family Court of the alleged oral understanding
between the parties that petitioner would not assume a parental
role toward Ry, any such agreement is unenforceable for failure
to comply with explicit statutory requirements for surrender of
parental rights. . ."  The court contended that the doctrine of
estoppel, if relevant at all, would seem on these facts more
applicable against Young than Steel:  "If respondent now finds
petitioner's involvement in his daughter's life to be
inconvenient, she cannot deny that her predicament is the result
of her own action.  Not content with the knowledge of the
identity of the biological father that her chosen method of
conception afforded, Robin Y. initiated and fostered a
relationship between petitioner and Ry.  However strenuously this
relationship may be gainsaid by respondent, its nature, duration
and constancy during the six years prior to the commencement of
this proceeding amply demonstrate petitioner's interest and
concern for his child (Soc.Serv.Law sec. 384-b) so as to preclude
summary termination of his parental rights.  Nor, given that Ry
has known petitioner to be her father since the age of three, is
there any credibility to the suggestion that mere acknowledgement
of petitioner's legal status will result in a shock to the
child's sensibilities."  The court suggested that "Ry's recently
expressed desire to sever contact with petitioner, coinciding as
it does with the onset of the instant dispute, is based on
concerns communicated to her by Robin Y. and Sandra R. . . based
on the misapprehension that visitation by petitioner necessarily
poses an immediate threat to the stability of the household." 
Emphasizing that its decision was not determinative on the
question of visitation, the court commented that "entry of an
order of filiation has the advantage of supplying a further
source of support, should the necessity arise, together with the
potential for substantial inheritance."

The court concluded by turning the tables and applying its own
estoppel theory against Robin Y.: "Having initiated and
encouraged, over a substantial period of time, the relationship
between petitioner and his daughter, respondent is estopped to
deny his right to legal recognition of that relationship.  The
provisions of Family Ct. Act. sec. 542(a) are clear and
unambiguous and, therefore, there is no room for judicial
interpretation.  Having found that petitioner is the father of Ry
R.-Y., Family Court was commanded by statutory direction to enter
an order of filiation."

In her dissenting opinion, Justice Ellerin criticized the court
for hewing so strictly to the statutory language: "The complexity
of the human relationships that permeate this case and the
contemporary reality of millions of households that maintain
alternative family life styles strongly militate against the
rigid, abstract application of legal principles, not designed for
situations such as this, in a way that will grievously impact
upon an innocent child, now twelve years of age.  This case also
demonstrates, as do most emotionally charged situations, the
inadequacy of current law and litigation as instruments capable
of satisfactorily accommodating the competing desires and
interests of each of the parties involved.  Since, however, I
believe that the overriding factor which must guide us is the
best interests of this child, I dissent and would affirm the
trial court's sensitive and well founded decision which denied a
declaration of paternity to petitioner sperm donor on the basis
of equitable estoppel."  

In presenting an alternate statement of the facts, the dissent
took a distinctly different view of the trial record:  "The
record clearly establishes that for Ry's first 9 and half years
of life the appellant at no time sought to establish a true
parental relationship with her either by way of seeking to
legally establish his paternity and assuming the responsibilities
and obligations which that status entailed or by any involvement
in her upbringing or schooling or by attempting to provide any
support for her.  He was not there when she cut her baby teeth,
started to walk, was sick or in need of parental comfort or
guidance, nor did he seek to involve himself in the every day
decisions which are peculiarly the domain of parents -- decisions
as to what schools she should attend, what camps, what doctors
should be consulted, the extent of her after school and social
activities, the need for tutors and the like.  Perhaps Ry herself
best stated it when she said that to her a parent is a person who
a child depends on to care for her needs.  The net of
petitioner's relationship with Ry during the 6 years that he
occasionally saw her until she was almost 10 years old was that
of a close family friend or fond surrogate uncle who, while
acknowledging that he was her biological sperm donor, fully
recognized that her family unit consisted of her two mothers and
her sister Cade and that he was not a family member of that unit. 
Throughout this period he fully acquiesced in the mothers'
arrangement for meetings -- i.e., to include all 4 members of the
RY family and with Cade to be treated by him in precisely the
same way as Ry.  While respondent Robin Y was always agreeable to
continuing periodic meetings and contacts with appellant on the
same basis, it was appellant who summarily sought to alter this
modus operandi of the preceding 6 years."  

The dissent emphasized the arguments of the law guardian and the
court-appointed psychiatrist, and characterized as "puzzling and
inaccurate" the manner in which the court framed the question to
be decided as akin to a termination of parental rights, when, in
fact, Steel had agreed never to assert parental rights and had
not done so during the first ten years of Ry's life. 
Furthermore, the dissent objected strongly to the court's
reference to equal protection concerns: "Nor, it should be made
clear, is this case in anywise a referendum on the comparative
parenting abilities of lesbian mothers versus gay fathers, a
gratuitous rhetorical inquiry posed by the majority.  That
petitioner is a gay man is wholly irrelevant to the question of
whether his conduct for a period of almost 10 years during which
he acquiesced in, and indeed fostered, Ry's belief that her
family unit consisted of her 2 mothers and her sister Cade and
that he did not occupy, nor seek to exercise, any parental or
family role, should preclude his present attempt to establish
parental status.  It is the import of appellant's conduct and not
his sexual orientation that is controlling.  An identical
standard would apply if any or all of the parties involved in
this case were heterosexual."

Turning to its view of the substantive issues, the dissent
observed that NY case law supports the contention that a sperm
donor or other unwed biological father does not have automatic
parental rights.  Looking for an analogous body of law, the
dissent fastened on the rules governing whether an unwed father's
permission is needed to allow another to adopt his children (Dom.
Rel. Law sec. 111) and found that, under those rules, Steel's
permission would probably not be required, since his conduct
during the early years of Ry's life "fell far short of
manifesting the willingness to take on the parental
responsibilities necessary to invest him with any
constitutionally recognized parental `rights' which could be
terminated subject to the provisions of Soc. Serv. Law sec. 384-
b."  The dissent also argued that there was substantial support
in NY case law for the flexible use of equitable estoppel in a
case such as this to bar the order of filiation.  "[No] authority
is cited to support the majority's conclusion that the
preservation of legitimacy in its legal sense is a sine qua non
for the imposition of equitable estoppel.  On the contrary, the
paramount purpose of the equitable estoppel doctrine is to
promote fairness and justice, and in considering whether it
should be applied in a paternity case the overriding
consideration is whether [it] will serve the best interests of
the child."

Turning to the equity argument, the dissent urged that the
primary consideration is "the impact which petitioner's past
assurances and representations to Ry during her first 9 1/2 years
of life -- as to who her family were, how it functioned and his
non-family status have had upon her stability and security and
the consequences which would stem from permitting a dramatic
abrogation of those representations by giving petitioner family
status with all that entails," and that "the elements of
misrepresentation, reliance and detriment have clearly been
established" to support use of estoppel by the Family Court to
bar the filiation order.  After reviewing the factual record,
emphasizing the relatively limited contacts between Steel and Ry,
and Steel's initiation of the chain of events leading to the
lawsuit, the dissent characterized as "most important" that "a
declaration of paternity in this case would be counter to this
child's interests because it clearly would be only the first step
in ongoing litigation which will inevitably cause severe
traumatic consequences to the child and her family. . .  A
declaration of paternity creates a platform for petitioner, as
well as his parents and other members of his family, who will, by
means of the order, become the child's legal relations, to seek
changes in visitation and, of course, to seek custody.  Indeed,
even were visitation never to be granted and further litigation
never to succeed, the constant, frightening potential for it is a
burden that this child, who is already aware that her family is
vulnerable to attack on a number of fronts, should not have to
bear."

This case has produced sharply divided opinion within the lesbian
and gay legal community, which is likely to be even further
exacerbated by the emphatic -- sometimes scathing -- language of
both the majority and dissenting opinions.  Peter Bienstock,
attorney for Robin Young, told the New York Times that an
application would be made for permission to appeal to the state's
highest court, the Court of Appeals.  Press reports from around
the country, taking their cue from the most quotable statements
in the majority opinion, tended in some cases to characterize the
case as a dispute over whether a gay man was qualified to be a
father -- a distortion of the legal issues decided by the court. 
A.S.L.

Supreme Court Denies Certiorari in Alaska Marital Status Case

The United States Supreme Court denied certiorari in Swanner v.
Anchorage Equal Rights Commission, No. 94-169, letting stand the
Alaska Supreme Court's ruling that a religious landlord could not
claim an exemption from Alaska laws prohibiting housing
discrimination based on marital status.  The Alaska court held
per curiam that the state had a compelling interest in
prohibiting housing discrimination based on marital status and
therefore the landlord was not entitled to a religious exemption
from the law.  See 874 P.2d 274 (1994).  

Defendant Swanner, d/b/a Whitehall Properties, refused to rent to
unmarried couples intending to live together, based on his
religious belief that heterosexual cohabitation (even without a
sexual relationship) is sinful.  Three couples whom Swanner
rejected complained to the Anchorage Equal Rights Commission
(AERC), alleging violations of municipal and state laws
prohibiting housing discrimination based on marital status.  The
Commission consolidated the cases and ruled for the plaintiffs. 
Swanner appealed to the Superior Court, which affirmed, and then
to the Alaska Supreme Court, which also affirmed. 

Swanner argued that he did not discriminate on the basis of
marital status because he would rent to people regardless of
their marital status, so long as they did not cohabit with
members of the opposite sex.  The Alaska court rejected this
argument.  Because Swanner would have rented to the couples if
they had been married, and refused them only when he learned that
they were not, the court reasoned that Swanner discriminated on
the basis of their marital status.  Swanner also claimed that
prohibiting his business from discriminating against unmarried
couples violated his right to free exercise of religion, and that
the government could do so only in furtherance of a compelling
interest.  The Alaska court rejected this claim, stating that it
was not Mr. Swanner's belief that violated the statute but rather
his conduct in a commercial setting.  The court cited Employment
Division v. Smith, 494 U.S. 872 (1990) (upholding a statute
criminalizing peyote use, as applied to Native American religious
ceremonies), which refused to apply the compelling interest test
to laws of general applicability.  The court also addressed the
Religious Freedom Restoration Act of 1993, 42 U.S.C. sec. 2000bb,
which mandates a compelling interest analysis in cases where a
statute burdens religious practices.  The court stated: "Assuming
the statute is constitutional and applies to this case, it does
not affect the outcome, because we hold in the next section that
compelling state interests support the prohibitions on marital
status discrimination."

The court also considered cases from two other states that
supported Swanner's position.  The first, Minnesota v. French,
460 N.W.2d 2 (Minn. 1990), relied on a statute criminalizing
fornication to conclude that unmarried couples were not intended
to be included in the definition of "marital status," which was
not defined in the non-discrimination statute.  Alaska's
fornication statute had been repealed, thus distinguishing the
Minnesota case.  The second, Donahue v. Fair Employment Housing
Comm'n, 2 Cal.Rptr.2d 32 (Cal.App. 1991), rev. dismissed as
improvidently granted and remanded, 859 P.2d 671 (Cal. 1993),
relied on the California Constitution and was depublished
(rendered uncitable) by the California Supreme Court.  The Alaska
court thus found no guidance in these cases.  (There has since
been another California Court of Appeal decision in accord with
Donahue, as to which Supreme Court review is pending.)

The court accepted Swanner's argument that the Alaska
Constitution may provide greater protection for religious
practice than the U.S. Constitution.  Analyzing the issue under
the Alaska Constitution, the court differentiated "derivative"
interests from "transactional" interests.  A derivative interest
is at stake where the state seeks to prevent not the prohibited
act itself, but rather some larger evil that would occur if many
people engaged in the prohibited act.  The court cited Frank v.
State, 604 P.2d 1068 (Alaska 1979), a case in which Native
Americans had been allowed a religious exemption to the state's
moose hunting restrictions, because the state was not trying to
prohibit moose hunting per se but rather was trying to prevent
excessive hunting from endangering the moose species.  In
contrast, the court ruled that the state has a transactional
interest in prohibiting housing discrimination, because each act
of discrimination inflicts indignity and hardship.  The court
also noted that Swanner entered a business regulated by
non-discrimination laws as a matter of choice; his religion did
not require him to rent housing.  Adding that commercial activity
does not receive the same status accorded religious activity, the
court concluded that the law does not violate Swanner's right to
free exercise of religion under the Alaska Constitution.  The
court also rejected Swanner's administrative and procedural
arguments, ruling that the municipal statute was not an
unconstitutional delegation and that the AERC had complied with
its administrative requirements.

Dissenting, Chief Justice Moore wrote that the ruling forced the
defendant to abandon either his religion or his livelihood. 
Moore said the state had not demonstrated a compelling interest
in preventing marital status discrimination, nor that a religious
exemption to the law might create a housing shortage for
unmarried couples.  Moore criticized the separation of derivative
and transactional interests as a distinction without a
difference.

Dissenting from the United States Supreme Court's denial of
certiorari, Justice Thomas expressed skepticism that preventing
marital status discrimination is important enough to be
considered on a par with preventing racial discrimination. 
Thomas added that the states had exhibited considerable
difficulty interpreting the RFRA, and that this confusion
provided another reason to grant certiorari.  O.R.D.

Federal Court Dismisses Gay Harassment Claim Under Title VII

A federal district court has reaffirmed that same-sex sexual
harassment is not actionable under Title VII.  Vandeventer v.
Wabash National Corporation, 1994 WL 651868 (U.S.Dist.Ct.
N.D.Ind., Oct. 17).  One of the plaintiffs, Douglas Feltner, was
terminated from employment as a drill operator at a Wabash plant
after taking a few days medical leave.  Wabash claims it
terminated Feltner because he took leave without proper
clearance.  After his termination, Feltner filed a claim with the
EEOC charging sexual harassment.  He then asserted that it was
his complaints of harassment, and not the improper sick leave,
which were the real reason behind his termination.  The court
granted the defendants' motion for summary judgment on several
grounds.  In regard to the sexual harassment claim, it noted that
Feltner alleged only that he was harassed by another man.  He
claimed that he was harassed by a coordinator who aimed the
comments "drop down," "dick sucker," and "crawl under the table"
at Feltner.  This coordinator, appropriately named Mr. Gall,
allegedly wondered out loud whether Feltner could perform
fellatio without his false teeth.  Gall also asked Feltner if he
would go with him to a gay bar.  

The court simply stated that same-sex harassment is not
actionable under Title VII, citing Ulane v. Eastern Airlines, 742
F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985). 
It found that the evidence showed only that Feltner was harassed
by Gall, not that Feltner was harassed because he was a male.  It
also found that Title VII is aimed at a gender-biased atmosphere,
and stated that the contention that the Wabash plant was an
"anti-male" atmosphere was "ridiculous."  The court concluded
that Gall called Feltner a homosexual to annoy him, and noted
that it worked, as Feltner became annoyed.  The record, in the
eyes of the court, did not support a reasonable inference that
Gall harassed Feltner because he was a man, and therefore
Feltner's claim was not actionable sexual harassment under Title
VII.  

The court dismissed Feltner's other claims of "quid pro quo" and
"hostile work environment" sexual harassment for his failure to
make out a prima facie case for either claim.  It added, for good
measure, that Feltner should not have alleged quid pro quo
harassment because he misunderstood its legal meaning.  The court
stated that what he really meant was hostile work environment,
but even if he understood the meaning of that, Feltner fared no
better.  The court chided him for submitting a misleading
affidavit and claimed that not only was it justified in
completely disregarding this affidavit, but the probative value
of all other affidavits submitted by his attorney was called into
question.  This rather pointed motion opinion was written by
Judge Sharp.  P.T. 

Lesbian Mothers Win Custody Disputes

In two decisions issued Nov. 16, the NY Appellate Division, 4th
Department, resolved appeals in favor of lesbian mothers.  In the
first case, Paul C. v. Tracy D., 1994 WL 640088, the Family Court
had awarded custody of two young sons to Tracy, who was divorcing
Paul.  Although the court's per curiam opinion is cryptic about
the facts, it appears that Tracy is a lesbian who has developed a
relationship with a female co-worker.  In appealing the custody
award, Paul contended that granting custody to Tracy was not in
the children's best interest.  "Contrary to petitioner's
contention," wrote the court, there is no indication in the
record that the relationship of respondent with her co-worker had
a negative impact on the children.  Where a parent's sexual
preference does not adversely affect the children, such
preference is not determinative in a child custody dispute. . . 
Moreover, the court adequately addressed the petitioner's
concerns regarding the conduct of respondent and her co-worker." 
There is no more factual detail in the opinion about the nature
of that relationship, or how the family court had addressed the
petitioner's concerns.

In Patricia L.D. v. Herkimer County Attorney, 1994 WL 639994,
Patricia, a lesbian, filed a petition in Family Court seeking
certification that she was a qualified adoptive parent for a
private placement adoption.  She had been approved by Saratoga
Home Services following a home study, and the court received 11
letters of recommendation supporting her petition, which was
unopposed.  But the court denied the petition, according to the
appeals court's per curiam opinion, "on the ground that the
adoptive child `in reality' would also be the adoptive child of
an unmarried adult with whom petitioner resides," and evidently
the family court judge felt that the law did not authorize such a
de facto adoption by a same-sex couple.  The appellate division
reversed and granted the petition.  Noting that there is no bar
to adoption by an unmarried adult, the court said that "an
application for adoption may not be precluded solely on the basis
of homosexuality. . .  The record supports the conclusion that
petitioner is a qualified adoptive parent.  There is no
indication that petitioner's certification as an adoptive parent
would not be in the child's best interests.  In the context of
child custody cases, we have held that a parent's sexual
orientation, if it does not adversely affect the children, is not
determinative."  One judge dissented without writing an opinion. 


The Indiana Court of Appeals held that a trial court abused its
discretion by imposing restrictions on the custody rights of a
lesbian mother. Teegarden v. Teegarden, 1994 WL 656686 (4th
Dist., Nov. 23).  Twila and Albert divorced in 1990, with custody
of their two sons going to Albert, who subsequently married
Samantha, and liberal visitation rights for Twila.  Two years
later Albert died in an accident and Twila filed a motion for
immediate award of custody, which was opposed by Samantha.  By
now Twila was involved in a lesbian relationship, and Samantha
urged, among other arguments, that Twila was unfit.  Although the
trial court conceded that where a custodial parent dies, transfer
of custody to the non-custodial parent is normally a matter of
routine, it held a hearing on Samantha's allegations and found
that Twila was fully fit, rejecting opinion evidence by Dr.
Kenneth Joy about "potential future adverse impacts upon the
children" of being placed with their lesbian mother. 
Nevertheless, the trial court imposed the following conditions on
its custody award: that Twila's "custody of her children is
conditioned upon her (1) not co-habitating with women with whom
she is maintaining a homosexual relationship; and (2) not
engaging in homosexual activity in the presence of the children.
. . [and further] that Petitioner shall arrange for counselling
for herself and her children to aid them in making the transition
into their new home."  On appeal, the court found these
restrictions unsupported by the record.  The trial court "found
specifically" that Twila's homosexuality did not render her unfit
for custody, and that "`neither boy currently appears to be
particularly traumatized by their mother's sexual orientation,'
despite the fact they had seen Mother kissing and hugging her
partner. . .  Had the evidence revealed that Mother flagrantly
engaged in untoward sexual behavior in the boys' presence, the
trial court may have been justified in finding her to be unfit
and, accordingly, awarded custody to Stepmother.  However,
without evidence of behavior having an adverse effect upon the
children, we find the trial court had no basis upon which to
condition Mother's custody of her sons."  

On the other hand, in Decatur, Georgia, DeKalb County Superior
Court Judge Michael Hancoc accepted an out-of-court settlement in
a custody dispute between Jennifer Good, a lesbian, and her ex-
husband, under which the husband will have custody and Good, who
lives with a lover, will have every other weekend and holiday
visitation rights.  Good had been assigned temporary custody upon
divorce, but her husband (now remarried) allegedly abducted their
young daughter and obtained a permanent custody decree in a
different county.  According to a news report in the Washington
Blade (Nov. 18), the husband and his new wife have been telling
the 6-year old child that her mother is an immoral lesbian who
will die.  A.S.L.

Labor Arbitrator Sustains Discharge of Lesbian Case Worker

In a troubling case, Labor Arbitrator Jonathan Dworkin upheld the
discharge of an openly lesbian social service case worker who was
with engaging in a sexual relationship with a client.  Hamilton
County, Ohio, Department of Social Services v. Ohio Civil Service
Employees Association, Local 11, 94-2 ARB (CCH)  4488 (June 29,
1994).  The case arose when the grievant's supervisor received an
anonymous letter stating that the grievant was involved in a
sexual relationship with one of her clients, a young unwed
mother, and that the relationship had interfered with the
grievant's handling of the case.  After an investigation, the
supervisor concluded that the charges were true and merited
discharge.  It turned out that the anonymous letter was actually
from the client, also openly lesbian, who testified before the
arbitrator, asserting that she and the Grievant had sex numerous
times, resulting in problems with the client's daughter and
interfering in their ability to benefit from the services of the
county's Family Preservation Unit.  Other testimony tending to
corroborate the client's story came from the supervisor, from a
lesbian co-worker, and from the client's therapist.  The grievant
denied that there had been any sexual relationship for the
duration of the client's participation in the program, but
asserted rather that the client had fallen in love with the
grievant and was distraught to learn that the grievant was dating
somebody else.  The grievant admitted having formed a close
friendship with the client, but claimed that it never went to a
sexual level.  The grievant alleged that the client was motivated
by revenge, and that the discharge was the result of homophobia
in the agency.

The collective bargaining agreement governing the grievant's
employment provided that disciplinary action could only be taken
for "just cause," and that progressive discipline must be
followed (i.e., warnings, reprimands, suspensions, etc., must
come before a discharge) "except in extreme instances wherein the
employee is found guilty of gross misconduct.  Disciplinary
action is intended as a form of corrective action."

Arbitrator Dworkin ruled that under this contract language the
discharge without progressive discipline could be sustained only
if the employer proved that the grievant had actually engaged in
sexual activity with the client.  The arbitrator found that there
was nothing in the record other than the grievant's general
allegation to show that homophobia motivated the discharge. 
Evaluating witnesses, the arbitrator found that the grievant was
much more credible than the client, who came across as very
rehearsed, and if these two had been the only witnesses, the
arbitrator "would have been inclined to believe the Employee." 
However, all of the corroboration witnesses also seemed credible. 
The grievant claimed that they were all lying, which the
arbitrator considered unlikely.  "Arbitrators have no
extraordinary ability to ascertain truth," wrote Dworkin.  "The
best they can do is weigh evidence, apply their intelligence and
experience, and judge probabilities.  While the client's
testimony against Grievant was suspect, the Agency presented
believable corroboration for its essentials.  The finding of
probability is that the Employee did commit the misconduct for
which she was dismissed.  This Arbitrator has said often that
under just-cause principles, there is practically no offense that
automatically sanctions discharge.  This dispute severely tests
the statement.  What Grievant did was worse than neglect of duty. 
Guided by her appetites, she deserted permission to save a family
and became a catalyst for its destruction.  It may be said that
she actually abandoned her job and the removal only recorded what
had already taken place.  Whether this is a fair statement or
not, it is the Arbitrator's opinion that the discharge was for
just cause."  A.S.L.

NY Court Dismisses Charges Against St. Patrick's Day March
Protesters

An annual rite of Spring in New York has been the yearly stand-
off between the Ancient Order of Hibernians and the Irish Lesbian
and Gay Organization (ILGO) over the gay group's exclusion from
the Saint Patrick's Day Parade.  Each year since 1992, the
Hibernians declined ILGO's request to march under an identifying
banner, as the Hibernians felt that a homosexual group did not
appropriately reflect the Catholic theme of the day.  In Nov.
1993, ILGO announced it would stage a protest march two hours
before the 1994 parade, marching up 5th Avenue and past St.
Patrick's Cathedral, along the same route the official parade
would take.  The police announced that any unauthorized march
along the parade route or its side streets would result in arrest
of the participants, because ILGO marchers would place themselves
in danger from hostile onlookers and the police would be unable
to protect them.  The police also stated their concern that
groups not affiliated with ILGO would attempt to stage protests
at St. Patrick's Cathedral, although they did not give reasons
for these fears.  A deputy mayor concurred with the chief of
police in disallowing the protest march.

At 9:00 a.m. on March 17, about 200 persons entered 5th Ave.
south of 42nd Street and began marching north.  On reaching the
major traffic intersection of 42nd and 5th, the marchers were met
by two lines of uniformed police.  An officer warned the crowd to
disperse or face arrest.  Traffic was blocked in all directions. 
While some left, the police arrested 97 persons, who were charged
with disorderly conduct, and in the case of 30 defendants,
resisting arrest.  The defendants moved to dismiss in the
interest of justice, arguing violation of their rights to freedom
of speech and assembly, equal protection and due process pursuant
to the N.Y. and federal constitutions.  The District Attorney
proposed adjournment in contemplation of dismissal, which was
rejected by defense counsel.

The motions were heard by Judge Sackett of the New York Criminal
Court.  People v. Laurie Arbeiter, et. al., NYLJ, 11/3/94, p.29.  
Judge Sackett first considered the seriousness and circumstances
of the offenses.  All defendants were charged under a provision
of the disorderly conduct statute that makes it an offense to
obstruct vehicular traffic with the intent to cause public
inconvenience, annoyance or alarm.  Resisting arrest is a higher
charge involving a person who intentionally attempts to prevent a
police officer from completing an arrest.  Sackett noted that
disorderly conduct is an inherently minor charge; the legislature
classifies it as a violation and gives it a maximum sentence of
short duration.  Although resisting arrest is a more serious
charge, in the present circumstances the risk of injury was low,
and the conduct of the people who had to be carried to police
vans never rose to the level necessary to reach a conviction for
resisting arrest.  The judge found that by going limp or refusing
to stand up the protestors may have intended to delay arrest, but
that purpose is no longer prohibited under the statute.  The
charge of resisting arrest was dismissed against all defendants
as facially insufficient.

Turning to disorderly conduct, Sackett found that the degree to
which blame for the harm caused by the protest march can be
attached to the protestors, ultimately lies in a determination of
the correctness of the police department's decision to ban the
march and arrest those who defied that ban.  The judge found that
there was uncontrovertible evidence that all of the defendants
engaged in conduct that the statute labelled as disorderly.  ILGO
made clear its intention to hold a protest march, and did not
exhaust judicial or administrative remedies to overturn the
police ban.  As they blocked traffic in violation of the police
ban, they engaged in disorderly conduct.  But, said Sacket, the
court "remains unconvinced that the defendants' rights to free
speech and assembly under the state and federal constitutions
were respected by the Office of the Mayor or the New York Police
Department on the morning of March 17, 1994, before the
defendants engaged in unlawful conduct."  It went on to note that
parades and marches are methods of expression and are entitled to
constitutional protection.  The police department had the right
to restrict the time, place, and manner of ILGO's march, but the
restrictions had to be reasonable and without reference to the
content of that expression.  Further, in regard to the
"legitimate" interest of preventing public disorder between the
ILGO marchers and the other St. Patrick's Day parade participants
and spectators, the court quoted Watson v. Memphis, 373 U.S. 526,
535:  "[c]onstitutional rights may not be denied simply because
of hostility to their assertion or exercise."

The court found that the police excessively acquiesced in the
fear of violence from protest march onlookers.  The court also
found that the police department did not present sufficient basis
for its fear.  Further, as the place of the official parade was
central to the message of the protest march, not forbidding ILGO
from marching elsewhere did not provide ILGO with an "ample,
alternative channel" necessary to meet constitutional muster. 
The court stated that the goal of the protest was to symbolically
claim the "right to march along the same street which had become
intertwined with the annual celebration of Irish heritage. . . .
[a] different route would not have had the same emotional or
symbolic impact."  The court concluded that although ILGO's
unlawful response was unjustified, it would be unjust to permit
the police to obtain convictions against the defendants for what
was at worst a "misguided response to the blatant denial of First
Amendment rights by the police.  To allow such convictions to
occur would be to encourage further undermining of constitutional
safeguards by those charged with their protections." 

The court dismissed all charges against defendants by reference
to statutory law.  It therefore declined to reach the defendants'
due process and equal protection claims.  Those questions are
saved for another day, but New Yorkers need only wait a few
months for the next installment of St. Patrick's Day fireworks. 
The ILGO protesters were represented by Paul O'Dwyer.  P.T.

Federal Litigation Notes

Matthew Gootee appealed his criminal drug conviction to the 7th
Circuit Court of Appeals, claiming that the trial court had
improperly excluded evidence that would have supported his
entrapment defense.  U.S. v. Gootee, 34 F.3d 475 (7th Cir. Sept.
2).  Gootee argued that a police informant entrapped him by
exploiting and intimidating him because of his homosexuality. 
Gootee wished to introduce extrinsic evidence that Gregory
Bellamy, the informant, threatened to "out" him to family and
co-workers if Gootee did not obtain drugs for him, that Bellamy
had solicited him for sex and that he had been arrested for
having gay sex in a public place.  Noting that Gootee was allowed
to cross examine Bellamy on these topics, the 7th Circuit found
that exclusion of the extrinsic evidence was not an abuse of
discretion. Thus the jury may not have heard a complete story of
the fear and secrecy surrounding Gootee's circumstances.  The
court also rejected Gootee's motion for a new trial based on
possible jury misconduct.  D.W.

In Bass v. Santa Clara County Dept. of Corrections Supervisors,
1994 WL 618554 (U.S.Dist.Ct., N.D.Cal., Oct. 27), the plaintiffs
are nine gay and transgender inmates imprisoned at the Santa
Clara County jail.  Their pro se complaint challenges the
defendant's discriminatory treatment practices, including placing
gay prisoners in higher security housing, using security escorts
to accompany gay prisoners to prison facilities, denying gay
prisoners access to many of the prison programs (including
education, employment, and counseling opportunities) and allowing
gay prisoners out of their cells only two to four hours a day, as
compared to nine to twelve hours for the rest of the prison
population.  The court determined that although homosexual
activity is not a fundamental right and homosexuals are not a
suspect or quasi-suspect class, "discrimination ... [based] on
the mere status as a homosexual states an equal protection
claim;" the government must therefore prove that the
discriminatory practice is rationally related to legitimate
governmental purposes.  However, Judge Ware ordered that
plaintiffs amend their complaint in several particulars.  Before
requiring "defendants to respond to the complaint, and before the
merits of the claims can be reached, the plaintiffs must allege
facts showing the standing of each of the plaintiffs and the
liability of each of the defendants for the alleged
discrimination."  Ware also ordered plaintiffs to amend their
complaint in other respects.  In order to have standing, the
prisoners must allege that they have suffered actual or imminent
injury as a result of the defendants' alleged discriminatory
practices.  Further, since respondeat superior in not a
sufficient basis to establish liability under 42 U.S.C. sec.
1983, the plaintiffs must present sufficient facts alleging that
the defendants played an affirmative part in the discrimination;
the plaintiffs must also provide the court with names or specific
information about the 100 "Doe" defendants, or the reasons why
they were unable to obtain identifying information about the
unknown defendants.  The court dismissed the claims, granting the
plaintiffs thirty days leave to amend the complaint. C.B.R.

State Litigation Notes

 The Mississippi Supreme Court denied an appeal by a mother from
a decision awarding custody of her minor son to her ex-husband. 
The mother claimed that the trial court erred by accepting in
evidence a tape of a phone conversation she had with another
woman, a lesbian, in which she talked about having sex with the
other woman.  The mother testified that she though her husband
was bugging the phone, and she and the other woman specifically
staged this conversation to "give him an earful."  The other
woman, Vanessa, testified that "although she is a lesbian, she
never had an affair with Stephanie, never kissed her, and never
made passes toward her."  She admitted that it was her voice on
the tape.  The Supreme Court held that the trial court did not
err, finding that the authenticity of the tape had been confirmed
by the testimony of the mother and Vanessa.  The opinion is
entirely devoted to issues of the admissibility of the tape, and
there is no discussion by the court of the possibility that the
content of the tape may have unfairly prejudiced the trial court
against the mother.  Stewart v. Stewart, 1994 WL 644112 (Nov.
17). A.S.L.

In Reagan v. Texas, 1994 WL 548711 (Oct. 6), the appellant, a
capital murder defendant, raised five points of error on various
procedural matters to the Texas Court of Appeals.  Appellant's
fifth and final challenge to a murder conviction was based on the
trial court's alleged error in failing to admit pornographic
photographs of the victim.  The appellant had been allowed to
present testimony of the victim's homosexuality and his alleged
sexual assault of the appellant.  Because the court decided that
the trial court was correct in suppressing the photographic
evidence and thereby limiting the appellant's attempt "to try the
victim and incite further ant-homosexual prejudice into the
jury," the fifth point of error was overruled and the conviction
was affirmed. C.B.R.

The case of a Prospect Park, Brooklyn rape victim against the
Daily News for libel per se and intentional infliction of
emotional distress is currently making its way through the motion
process.  Jane Doe v. Daily News, L.P., N.Y.Sup.Ct., N.Y. Co.,
NYLJ, 11/16/94, p.21.  The plaintiff claims she was raped in the
park, but then had her story doubted in three successive columns
by Daily News columnist Mike McAlary.  McAlary wrote that an
inside source in the police department told him that top police
officials were skeptical that the victim's claims were sincere as
she was a lesbian activist who planned to use her story in a
speech the following weekend at a rally against anti-lesbian
crime.  McAlary held firm to his "hoax" story, even after Police
Commissioner William Bratton issued a public apology for any
member of the Force casting doubt on the victim's story, and
after a lab report indicated that semen was found on the victim's
shorts.  Leonard Levitt, "Confidential Park Rape Case:  Whose
Hoax?", New York Newsday, p.A16, May 23.  In its recent decision,
the court ruled on plaintiff's motions seeking anonymity in her
suit against the News. P.T.

Justice Mazzarelli first considered the legislative policy behind
the N.Y. Civil Rights Law protecting the identity of a sex
offense victim, noting that the statute protects victims of sex
offenses from additional psychological trauma which publicity
might bring and it encourages reluctant victims to come forward,
and that the defendants offered no compelling reason why the
public's right to information cannot be sufficiently satisfied by
access to a redacted court file.  "The statute mandates
confidentiality and sealing with access only by court order is
the most effective way to guarantee the statute's intended
result."  As to the defendants' right to disclose the identity of
the plaintiff to third parties, the court began by acknowledging
the validity of defendants' argument that as members of the
press, "any prior restraint on expression comes to this court
with a heavy presumption against its constitutional validity." 
However, relying heavily on Seattle Times Co. v. Rhinehart, 467
U.S. 33 (1984), Mazzarelli stated that the Supreme Court has
upheld the right of trial courts to issue protective orders in
civil litigation which limit the right to disseminate information
gained through pre-trial discovery.  The court found that the
plaintiff demonstrated that good cause exists for imposing some
form of restraint upon defendants.  "To allow defendants the
unrestricted right to reveal the plaintiff's identity and other
information learned through the court files and through the
discovery processes would violate the Civil Rights Law and would
subject plaintiff to undue embarrassment and harassment."  The
court conceded that it must limit its holding to restricting
defendants from disclosing information learned about plaintiff
through discovery.  As to information learned from outside
sources, it asked "that defendants in good faith adhere to
journalistic custom and practice and withhold the name of
plaintiff, a reported victim of a sex offense, from being
reported in the press and unnecessarily disclosed to the public
for the same policy reasons which led the legislature to enact
the Civil Rights Law." P.T.     

The Los Angeles Times reported Nov. 8 that two women won a
$270,000 jury verdict in Orange County Superior Court against the
Orange County Register and Pinkerton, Inc., on charges that they
were wrongfully discharged based on false reports about their
sexual orientation.  Patt Buchanan and Claudia Piras alleged that
Pinkerton guards employed by the Register made false reports that
the women were engaged in sexual activity in a parked car in the
Register's lot, and that they were subsequently fired as graphic
artists without adequate review, even though they had good
employment records.  The jury found sexual orientation
discrimination and breach of contract.  Both of the employees are
heterosexual.  The Register's publisher announced astonishment at
the verdict, claiming that perceived sexual orientation had
nothing to do with the discharges.  A.S.L.

Hamilton County, Ohio, Municipal Court Judge William Mallory Jr.
threw a major roadblock in the way of the prosecution against the
Pink Pyramid Bookstore in Cincinnati, when he ruled Nov. 10 that
a key piece of evidence, the videotape of "Salo: 120 Days of
Sodom" that vice cops rented at the store, could not be
introduced into evidence because the vice cops kept the tape
longer than was authorized by the rental agreement!  Mallory
opined that the cops had violated the store's 4th Amendment
rights when they used the overdue tape to obtain a search warrant
needed to confiscate the evidence.  City Prosecutor Terry
Cosgrove said the city can't win the case without the tape as
evidence.  Akron Beacon Journal (Nov. 12).  A.S.L.

The Chicago Tribune reported Nov. 30 that Cook County Associate
Judge Marjan Staniec had denied adoption petitions brought by two
lesbians to adopt the biological children of their domestic
partners, with whom they had been co-parenting the children in
question.  One of the petitioners was represented by Patricia
Logue, a Lambda Legal Defense attorney based in Chicago. 
Staniec's ruled Nov. 28, which a written opinion expected to be
released later.  The ruling seems inconsistent with a decision
earlier in 1994 by Cook County Judge Stephen Yates, who approved
joint adoption by a lesbian couple of a child who had a
biological relationship to one of the women.  A.S.L.

Domestic Partnership Notes

The University of Michigan has implemented partner benefits in
health and housing for same-sex couples, requiring as
prerequisite the filing of a domestic partnership registration
form with the City of Ann Arbor, according to a recent
announcement by the Lesbian Gay Bisexual Programs Office of the
university. * * * Thomas Jefferson University and Hospital
announced extension of benefits eligibility to domestic partners
of gay employees, effective Jan. 1, according to the Washington
Blade (Nov. 25).  The announcement includes the full panoply of
employee benefits that extend to spouses and family members. 
Health care will be through an HMO.  * * *  California regulators
are cracking down on insurance companies that have refused to
allow gays to buy life insurance on their partners and having
themselves named as beneficiaries.  Insurers have traditionally
claimed that there must be a business or traditional family basis
for somebody to have an "insurable interest" in another person. 
In 1991, California passed a law allowing insurance purchasers to
name anyone as a beneficiary.  Several large companies have
recently paid fines to resolve complaints that they were not in
compliance with the law, including Metropolitan Life, Allstate,
and Jackson National Life. * * * The Colorado Supreme Court has
refused to review the decision in Ross v. Denver Dept. of Health
& Hospitals, 18 Emp. Ben. Cases 1434, 1994 WL 115870 (Colo. App.,
April 7), in which the appeals court reversed a trial court
decision that had interpreted Colorado law to require Denver
General Hospital to provide leave benefits for Mary Ross to cover
time she took off to care for her domestic partner.  Rocky
Mountain News, Nov. 9. * * * Paramount Pictures, recently
acquired by Viacom, Inc., will extend medical and dental benefits
to same-sex domestic partners of its employees effective Jan. 1.
* * * A subscriber to an internet bulletin board on domestic
partnership reports that "the arbitration of a grievance at the
University of Lethbridge (Alberta, Canada) regarding same-sex
spousal benefits has ruled in favor of complainant, which could
have significant consequences for all public employees in the
province, Canada's most conservative area. * * * Lambda Legal
Defense announced settlement of a NY City Human Rights Commission
complaint against a cooperative apartment building that sought to
block the surviving domestic partner of a coop apartment owner
from succeeding to his partner's proprietary lease and occupancy
rights.  Since the litigation began, the complainant has died,
but under the settlement his new surviving partner and heir will
be assigned the proprietary lease. * * * David Sarnoff Research
Center will now treat domestic partners of employees as
dependents for purposes of medical, dental and dependent life
insurance coverage. * * * In a front page story Nov. 14, the NY
Law Journal reported four major law firms in NYC had recently
announced domestic partnership policies or were about to do so:
Fried Frank Harris Shriver & Jacobson; Shearman & Sterling;
Sullivan & Cromwell; and Wachtell Lipton Rosen & Katz.  The
article noted that earlier Milbank Tweed Hadley & McCloy had
adopted such a policy, and that seven other major New York firms
were actively considering doing so.  The story was sparked by a
conference on domestic partnership benefits organized by NYU Law
Students and the Lesbian and Gay Law Association of Greater New
York.  We have also learned that Covington & Burling, based in
Washington, D.C., has a domestic partnership benefits plan. * * *
In the Nov. 1994 issue of its quarterly magazine, The
Participant, Teachers Insurance Annuity Association, the nation's
largest pension plan, announced that domestic partners of
teachers could apply on the same basis as spouses for inclusion
under a variety of TIAA annuity/insurance products.  This seems a
particularly logical step, given the rapid increase in higher
education institutions adopting domestic partnership benefit
plans. * * * A Catholic businessman and a Protestant minister
filed suit in U.S. District Court in Hawaii, protesting the
composition of the recently formed state commission to look into
the issue of domestic partnership.  The plaintiffs allege
religious discrimination, in that some members of the commission
were specifically picked based on their religion.  San Francisco
Sentinel (Nov. 16). A.S.L.

Initiative and Election Notes

By a 4-3 decision, the Oregon Court of Appeals held in Boytano v.
Fritz, 1994 WL 661070 (Nov. 23), that a member of the electorate
could not obtain an order barring an election from being held on
a proposed anti-gay initiative.  In an earlier opinion, 875 P.2d
476, the court had rejected a pre-election challenge to an anti-
gay initiative charter amendment in City of Klamath Falls on the
ground that the challenge was filed prematurely because the
measure had not yet qualified for inclusion on the ballot.  On
petition for rehearing, the court changed its mind on that issue
and decided to address the merits.  Then it rejected a series of
arguments as to why the trial court should have refused to
certify the measure for inclusion on the ballot.  Most
significantly, the court rejected the argument that ORS
659.165(1), a recently enacted statute intended to forbid local
charter amendments and ordinances that single out citizens on the
basis of their sexual orientation, would deprive a municipality
of the authority to hold an election on such a measure. "Nothing
in the text or the context of ORS 659.165(1) suggests that local
elections are to be prohibited," said the court.  "The topic of
elections is not even mentioned. . . There is nothing
particularly complicated about declaring that local governments
cannot hold elections on certain types of measures."  The court
pointed out that the statute also provides for judicial
invalidation of the prohibited measures if they are enacted. 
This signals the legislature's intent that such elections can be
held, opined the court.  The dissent argued that, based on the
context of the statute, "the term `enact' was meant to refer to
the election process before the measure is voted upon. . .  It
proscribes enactment as well as enforcement. . .  Accordingly, I
conclude that ORS 659.165(1) makes the election itself the
proscribed event. . ." Further appeal, anyone?  

Upcoming Florida referenda: Voters in West Palm Beach will be
voting soon on whether to repeal a recently enacted gay rights
law that covers housing and employment.  Palm Beach Post, Nov. 8. 
In Tampa, the City Council on Nov. 3 agreed on wording for a
referendum to be held in March on whether to repeal that city's
rights law, which applies to employment, public accommodations,
and real estate transactions.  St. Petersburg Times, Nov. 4.  

Ohio election officials sought a court order to assist their
probe of the shady finances behind passage of Cincinnati's Issue
3.  According to campaign finance reports, $390,000 of the
$508,000 spent on the pro-initiative campaign was contributed by
Colorado for Family Values, which is not registered as a
political action committee in Ohio.  Josh Thomas, publisher of a
gay newspaper in Columbus, filed a complaint with the Ohio
Elections Commission charging that state law was violated in the
Issue 3 campaign, which led to the current investigation. 
Cincinnati Post, Nov. 17.

Law & Society Notes

Associated Press reported with some amusement that Missouri may
have inadvertently decriminalized consensual sodomy.  As part of
a series of amendments to the Sexual Offenses provisions in the
Revised Statutes of Missouri, the legislature inserted a phrase
into the existing provision that creates a latent ambiguity as to
whether consensual sodomy between adults has been decriminalized. 
That was not the announced intent of the sponsors of the
legislation.  The Missouri Supreme Court is expected to issue
revised jury instructions that may clarify the application of the
new law.  The provision in question is sec. 566.090, dealing with
"sexual misconduct," which formerly read that a person commits
that crime if "He has deviate sexual intercourse with another
person of the same sex."  As amended, it now reads if "He has
deviate sexual intercourse with another person of the same sex or
he purposely subjects another person to sexual contact or engages
in conduct which would constitute sexual contact except that the
touching occurs through the clothing without that person's
consent."  The ambiguity arises from the concluding phrase,
"without that person's consent," which, if held to apply equally
to the portion of the provision coming before "or" would, in
effect, decriminalize consensual deviate sexual intercourse. 
Deviate sexual intercourse is defined in the revised law as oral
or anal sex.  A.S.L.

The Cincinnati Post (Nov. 7) reported sharp disagreement among
judges in Hamilton County, Ohio, on whether civil protection
orders should be available for gays who are subject to abuse by
their domestic partners on the same basis that it is available in
cases of spousal abuse.  Judge Patrick T. Dinkelacker took the
position that Ohio law restricted such state intervention to
married couples.  Judge Timothy Hogan said that even those judges
who believe the law may be available try to talk gay applicants
out of filing requests for such orders, urging them to file
assault charges instead.

The Houston Post (Nov. 10) reported that the student government
at Stephen F. Austin State University voted to ban a gay and
lesbian student organization from campus and cut off its funding
from student activity fees, but that the university
administration, after being brief by their lawyers about the
overwhelming legal precedent supporting the rights of gay
students at state universities to form student organizations with
equal access to activity funds, overruled the student government
vote.  According to the news report, student government leaders
acted because of their belief that members of the gay and lesbian
group were probably violating the state's sodomy law.

The U.S. Immigration and Naturalization Service has granted
asylum to a gay man from Turkey, finding that he had "established
a well-founded fear of persecution were you to return to Turkey." 
The applicant, Serkan Altan, had documented numerous incidents of
harassment, abuse and threats based on his sexual orientation
from early childhood onward.  Washington Blade (Oct. 28).  It was
later reported that the INS decision created in uproar in the
Turkish press, when it was learned that Altan is the son of a
popular female vocalist, Nihal Arda, whose name is a "household
word" throughout Turkey.

And here we go again.  Wire services reported another research
finding relating to a biological basis for homosexuality. 
Research on the sexual behavior of rats led scientists from
Brigham Young University to hypothesize that testosterone levels
in the pregnant mother influence the sexual preferences of
offspring.  The results were presented at a conference of the
Society of Neuroscience.  See Chicago Tribune, Nov. 22.  A.S.L.

International Notes

A 3-judge panel of the Israel Supreme Court ruled Nov. 30 that
same-sex couples are entitled to be treated on an equal basis
with heterosexual married couples, as a matter of social
equality.  The ruling came in an appeal by El Al Airlines of a
lower court ruling in favor of Jonathan Danilowitz, an El Al
employee who sought spousal equivalent treatment for his domestic
partner in the matter of flight ticket entitlement.  According to
an announcement from the Society for the Protection of Personal
Rights (Israel's gay rights organization), the 50-page decision
"is based not only on the law per se but on the principle of
social equality." This presumably means that the ruling is
binding on private employers as an interpretation of Israel's law
banning employment discrimination, as well as the government. 
Another source informed us that the vote was 2-1, with an opinion
for the court by Justice Barak, a concurrence by Justice Dorner,
and a dissent by Justice Kedmi.  We hope to have more details
about the opinion for the January Law Notes.

The Alberta, Canada, Court of Queens Bench ruled April 12 that
"sexual orientation" discrimination is prohibited under Alberta's
Individual Rights Protection Act, according to a report in
Canadian HIV/AIDS Policy & Law Newsletter, Oct. 1994.  The trial
judge relied heavily on Haig & Birch v. Canada, 9 O.R.(3d) 495
(Ct.App. 1992), an appellate case that construed the Canadian
Human Rights Act to cover "sexual orientation" even though that
term is not explicitly mentioned in the law, as being required by
the Canadian Charter of Rights and Freedoms, sec. 15(l), which
guarantees individual equality of treatment by the government.  

The Romanian parliament voted Oct. 25 to effectively repudiate a
commitment made to the Council of Europe to comply with the
European Convention on Human Rights, by reaffirming support for
maintaining a law against consensual sodomy.  Washington Blade
(Nov. 11). 

The Australian House of Representatives voted Oct. 19 on a bill
intended to override the consensual sodomy law in Tasmania, the
last remaining Australian province to penalize consensual sodomy. 
The bill passed 114-4, and was sent on to the Senate.  Litigation
is expected by the Tasmanian government challenging the effect of
the bill.  Washington Blade (Nov. 4). A.S.L.

Professional Notes

The new Director of the American Civil Liberties Union's Gay &
Lesbian Rights and AIDS Projects will be Matt Coles, beginning in
December.  Coles has been a staff attorney for the ACLU of
Northern California, based in San Francisco, where he has worked
on a variety of litigation and legislation issues involving
lesbian and gay rights, AIDS, privacy and other civil liberties
issues.  Coles takes over the positions being vacated by Bill
Rubenstein, who has directed the Projects for several years, and
will be moving to the Boston area.  

Prominent lesbian attorney Elizabeth Birch is the new Executive
Director of the Human Rights Campaign Fund.  As chief in-house
litigator for Apple Computer, Birch was involved in the recent
battle between Apple and Williamson County, Texas, over Apple's
policy of providing medical benefits for domestic partners of
employees.  Birch was previously general counsel of Apple's
software subsidiary, Claris Corp., and has been an HRCF board
member.

Lesbian and gay attorneys in North Carolina have formally
organized as the North Carolina Gay & Lesbian Attorneys (NC-
GALA).  They are planning a full day CLE program on Jan. 28.  For
membership information, write to NC-GALA, Membership, PO Box
2164, Durham, NC 27702. A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 

Ninth Circuit Holds Prison Can Exclude HIV+ Inmates From Food-
Serving Jobs

Although "three strikes and you're in" may be the country's
latest answer to crime, being "in" does not mean that you lose
your right to dictate who can and cannot serve you meals.  The
U.S. Court of Appeals for the 9th Circuit overturned a federal
judge's ruling allowing prisoners infected with HIV to serve food
to other inmates.  The opinion for the unanimous panel, written
by Circuit Judge Hug, states that the authorities' fears of
prison riots are sufficient to warrant limits on the prisoners. 
Gates v. Rowland, 1994 WL 601746 (Nov. 4, 1994).

The defendants-appellants, inmates in this case, challenged the
district court's interpretation of a consent decree entered into
by various California state officials and a class which included
all inmates at the California Medical Facility (CMF).  The
consent decree arose out of the inmates' complaints of deficient
medical and psychiatric care, indecent confinement conditions,
and treatment and segregation of HIV-positive inmates at CMF. 
The inmates in the present case challenge the district court's
interpretation of the decree which enjoined CMF from denying food
service positions to HIV-positive inmates.  In mediation prior to
trial, HIV-positive inmates challenged the prison policies
segregating them from HIV-negative inmates and denying them
access to jobs and programs open to all other inmates.  In
mediation both sides agreed to each other's demands, with the
exception of HIV-positive inmates preparing or serving food.  The
defendants wished to enforce a blanket policy excluding all HIV-
positive inmates from preparing or serving food at CFM.  Unable
to negotiate a compromise, the consent decree mediator
recommended that the magistrate enjoin defendants from denying
food service employment to HIV-positive inmates, absent written
determination that an individual inmate is not otherwise
qualified to perform the job and that defendants cannot
reasonably accommodate the inmate so that he will be able to
perform the essential functions of the job.

Over the objections of the defendants, the district court
accepted the magistrate's recommendations and held that the
policy of excluding HIV-positive inmates from these positions
violated 504 of the Rehabilitation Act of 1973.  The court order
states that segregation of HIV-positive inmates is only
permissible under certain circumstances; specifically, a
documented history of high risk behavior, such as participation
in anal or oral intercourse, or assault during which the HIV-
positive inmate bleeds and inflicts an open wound on another. 
This part of the decree is not on appeal.  The part of the decree
at issue enjoins the defendants from denying food service
employment to all HIV-positive inmates absent the criteria stated
above.

The court begins by noting that 504 prohibits any individual
with a disability from being discriminated against in a program
which receives Federal financial assistance.  To assert a cause
of action, the plaintiff must have a disability, be otherwise
qualified for the job, and be excluded due to discrimination
solely by reason of his or her disability.  The court recalled
School Board of Nassau County v. Arline, 480 U.S. 273 (1987), in
which the Supreme Court stated that the essential inquiry is
whether the employee is otherwise qualified for the job.  The
Court agreed with the American Medical Association in holding
that, in the context of the employment of a person handicapped
with a contagious disease, the inquiry should include:  "findings
of facts based on reasonable medical judgments given the state of
medical knowledge about (a) the nature of the risk, (b) the
duration of the risk, (c) the severity of the risk and (d) the
probabilities the disease will be transmitted and will cause
varying degrees of harm."  The Court stated that in making these
findings, courts normally should defer to the reasonable medical
judgments of public health officials.

The appeals court noted that it had previously held that the Act
applied to a teacher who was diagnosed with AIDS, Chalk v. United
States District Court, 840 F.2d 701 (9th Cir. 1988), and thus
concluded that a person infected with HIV is an individual with a
disability within the meaning of the Act.  It then recalled that
the Act is applicable to prisons receiving federal financial
assistance, Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988).  Thus
the sole issue is how the Act is to be applied to a prison
setting.  The court stated that the Act was not designed to deal
specifically with the prison environment, but rather was intended
for general societal application.  The court held that the
applicable standard for review of the Act's statutory rights in a
prison setting is equivalent to the review of constitutional
rights in a prison setting.  "When a prison regulation impinges
on inmates' constitutional rights, the regulation is valid if it
is reasonably related to legitimate penological interests." 
Turner v. Safley, 482 U.S. 78 (1987).  The burden is on the
inmates to show that the challenged regulation is unreasonable.

The defendants admitted that the medical risk of HIV-positive
prisoners infecting others through service of food is slight. 
The court noted that it does not justify the policy on medical
considerations of transmitting the virus through food service. 
Rather, the justification is based on custodial security concerns
that arise because of the inmates' perception of how the virus
may be transmitted.  While the court conceded that HIV is
transmitted by bodily fluids entering the body of another, it
paid homage to the "well-publicized case where several patients
apparently were infected orally by their treating dentist." 
Although all agreed that the risk was slight for food service
transmission, the court focused on "theoretic possibilities,"
stating that even public health officials advise precautions in
situations where the risks are slight or unknown.

The court accepted the prison authorities' testimony that if HIV-
positive inmates are placed in food service jobs, other inmates
will perceive a threat regardless of scientific research or
medical pronouncements.  Inmates may fear, so the theory goes,
that HIV-positive workers will contaminate the food with their
bodily fluids.  If the inmate population perceives a risk from
the food that they must eat, as they do not have the choice to
eat somewhere else, they will want the infected inmates removed
from food service jobs.  If they have no assurance that the
infected inmates are removed, the court explained, there may be
violent actions against inmates with the virus or the staff that
refuses to alleviate the risk.  The court rejected the
plaintiffs' suggestion that education concerning transmission of
HIV would remove the inmates' fears.  Rather, it accepted prison
authorities' notion that prisoners are often motivated by
irrational fears that education cannot mollify, "particularly. .
. in light of the unknown aspects of the disease."  The court
concluded that HIV-positive inmates are afforded reasonable
opportunities in the general prison population, and that prison
authorities have provided a reasonable basis for the food service
restriction based on legitimate penological concerns.  With
Turner as the underlying basis, the court found that due
deference should be afforded to prison authorities' policies,
especially as "([r]unning a prison is an inordinately difficult
undertaking."  P.T. 

First Circuit Strikes Down Content-Censorship of Safe-Sex Ads

In AIDS Action Committee of Massachusetts, Inc. v. Massachusetts
Bay Transportation Authority, 1994 WL 612815 (US Ct. App., 1st
Cir., Nov. 9), the issue was whether the Massachusetts Bay
Transportation Authority (MBTA) acted constitutionally in
declining to run seven public service announcements that AIDS
Action Committee (AAC) sought to run in MBTA trolleys and busses. 
The Court of Appeals ruled against MBTA. 

MBTA refused to carry the ads because, it alleged, they ran afoul
of guidelines promulgated in February 1993 to govern commercial
and public service advertising, which adopted a "contemporary
community standards test" requiring that advertising not appeal
to prurient interest, describe sexual conduct in patently
offensive manner, or contain written or graphic representations
pertaining to sexual conduct.  The guidelines stated that the
purpose of the project being advertised should be such that the
advertising methodology should help achieve the goals of
educating and benefiting society, and that the projects in
question should be of sufficient seriousness to merit use of
public service advertising space.  In 1992, before the guidelines
were promulgated, AAC had placed ads of a similar nature that
used sexual innuendo and double entendre to promote safe sex. 
Thirty-six of the 37 public responses to these advertisements
were hostile, and though none of these advertisements referenced
same-sex conduct, 12 of these hostile responses contained, to use
the court's own words, "explicit homophobic statements."

In March and September, 1993, AAC proposed seven more public 
service advertisements.  Each showed a condom, contained a safe
sex message, and urged readers to contact the AAC hotline for
further information.  The ads were all rejected; AAC was told
that two of them would be run only with substantial editing.  AAC
rejected this offer, and none of the ads were run.  However, in
October 1993, ads of a more explicit nature were run on MBTA
trolleys and buses for the movie "Fatal Instinct."

AAC sued MBTA in U.S. District Court alleging violations of 42
U.S.C. sec. 1983 and similar state provisions, seeking
declaratory and injunctive relief on 1st and 14th Amendment
grounds.  The District Court granted an injunction to AAC,
ordering MBTA to run the ads.  849 F.Supp. 79 (D. Mass. 1993). 
The court found that the MBTA had used and managed the interiors
of its cars in such a manner that they were to be considered
"designated public fora," that the AAC ads were rejected on
content based criteria, and that the standards applied were not
necessary to serve a compelling state interest.  The injunction
forbade MBTA from refusing to accept and display the ads as
originally submitted.  The MBTA was also enjoined from using its
advertising guidelines as a basis for rejecting non-obscene and
non-defamatory public service advertisements based on their
content.

The First Circuit affirmed on slightly different grounds -- the
finding that rejection of the ads was content based.  The appeals
court did not reach issues of appropriate levels of scrutiny,
raised by MBTA, because it found that rejection of the ads at the
time when the "Fatal Instinct" ads were accepted constituted
content discrimination based on viewpoint, and that MBTA failed
to explained this appearance away.  The court found the "Fatal
Instinct" ads at least as explicit as the AAC ads, with sexually
provocative imagery and text at least as suggestive. The court
found that while the AAC ads were apparently screened under the
guidelines, the "Fatal Attraction" ads were, apparently, not
screened.   The court concluded that the "Fatal Instinct" ads,
though more explicit, "represent the conventional exploitation of
women's bodies for commercial advertising."   The AAC ads, by
contrast, "represent sexual humor addressed to men's bodies,"
capable of provoking homophobic responses.  It seemed that it was
precisely the fear of these hostile public responses that caused
MBTA to invoke the guidelines in one case but not the other.  The
circuit court affirmed the district court's judgment with regard
to content discrimination, effectively prohibiting the
application of the guidelines (which the circuit court called
"scarcely coherent"), and prohibited MBTA from excluding either
the ads in question or any that are "strictly comparable." 
However, the court was unwilling to rule on whether the interiors
of the trolleys and streetcars were "designated public fora" on
the scant record before the court.  S.K.

Hospital Refusal to Admit PWA Violates ADA

In Howe v. Hull, No. 3:92CV7658 (U.S.Dist.Ct., N.D.Ohio, Nov.
21), the court held that a hospital violated the Americans With
Disabilities Act (ADA) by denying admission from the emergency
room to a person with AIDS.  The case arose when Fred Charon and
Bruce Howe were travelling through Ohio in April of 1992 on their
way to a vacation in Wisconsin.  Charon, who was HIV+ and had
AIDS, had taken a prescription medicine called floxin for the
first time.  He had a severe reaction, suffering from a high
fever, a rash, and extreme redness of skin.  After consulting by
telephone with his physician in Maine, he sought treatment in the
emergency room of the nearest hospital.  Dr. Mark Reardon
examined Charon and found that he was suffering from a very
serious drug reaction and should be admitted to the hospital. 
Reardon worried that the drug reaction may develop into a rare
deadly skin disease, toxic epidermal necrolysis (TEN), although
at that time he only considered it a possibility.  Memorial
Hospital routinely treated severe drug reactions, but it did not
have the capability to treat TEN.

After Reardon determined that Charon needed to be admitted, he
telephoned the hospital's on-call admitting physician, Dr. Hull. 
Hull determined whether emergency patients should be admitted
into the hospital.  Reardon told Hull that although Charon had
HIV and AIDS, the severe allergic drug reaction was not related
to those conditions.  Hull, concerned about Charon's AIDS status,
was reluctant to admit Charon because he felt that AIDS patients
should be treated in a special AIDS program.  Hull told Reardon: 
"[i]f you get an AIDS patient in the hospital you will never get
him out."  Hull refused to admit Charon.  Acting on Hull's
suggestion, Reardon contacted the Medical College of Ohio (MCO)
and arranged to have Charon transferred.  As to why he was being
transferred, Reardon told Charon:  "This is a small community and
the admitting doctor does not feel comfortable admitting him."

Although Charon was still in the emergency room, waiting to be
transferred, when Dr. Hull came to the hospital, Hull did not
attempt to examine Charon or even look at his chart.  Later, at
MCO, Charon was examined by Dr. MacArthur, an infectious disease
specialist, who testified that Charon suffered from "a very
simple drug reaction."  He expressed surprise that he was even
consulted, as Charon's condition was so straightforward.  He
stated that: "[s]imply because [Charon] was HIV+ doesn't mandate
a consult from an infectious disease specialist."

Bruce Howe, representative for the deceased plaintiff, asserted
claims under the ADA, the Federal Rehabilitation Act of 1973
(FRA), and the Emergency Transfer and Active Labor Act (EMTALA). 
He also sought damages for intentional and negligent infliction
of emotional distress.  In previous motions, the court granted
Hull's motions for summary judgement as to the negligent
infliction of emotional distress and EMTALA claims, and the
hospital's motion for summary judgement only as to the negligent
infliction of emotional distress claim.  The plaintiff's
remaining FRA, EMTALA, and intentional infliction of emotional
distress claims were tried to a jury, and the ADA claims were
tried to the bench, Judge Potter presiding.

Hull testified that a patient with TEN should be at a hospital
with a specialized burn unit, and that a TEN patient should be
under the care of a dermatologist.  Memorial Hospital did not
have a burn unit or a staff dermatologist, however, MCO did not
have a burn unit either, and Charon was never examined by a
dermatologist during the course of his treatment at MCO.  Charon
was treated at MCO for a simple, if severe, drug reaction.  This
was unrelated to and uncomplicated by his HIV/AIDS status.  The
jury found that Charon's HIV/AIDS status was the motivating
factor in the defendant's refusal to admit and treat him.  It
returned a special verdict in favor of the defendants on the
EMTALA and intentional infliction of emotional distress claims,
and against both defendants on the FRA claim, awarding the
plaintiff compensatory damages of $62,000.  The jury also awarded
punitive damages in the amount of $150,000 against defendant Hull
and $300,000 against defendant Memorial Hospital.  The case went
to the bench on the plaintiff's ADA claim.

ADA prohibits discrimination based upon disability by places of
public accommodation.  The court held that an individual, such as
Dr. Hull, may be personally liable under the ADA as an operator
of a public accommodation if "(a) he or she is in a position of
authority; (b) within the ambit of this authority he or she has
both the power and discretion to perform potentially
discriminatory acts; and (c) the discriminatory acts are the
result of the exercise of the individual's own discretion, as
opposed to the implementation of institutional policy or the
mandates of superiors."   The court found that Hull "operated"
Memorial Hospital within the meaning of the ADA.  He had the
authority to admit Charon, therefore Memorial Hospital was liable
under the ADA for Hull's actions.  

Potter found that AIDS and HIV are both disabilities within the
meaning of the ADA. To prevail, Charon had to show that his
disability was why the hospital did not admit him as a regular
patient.  The court found that Hull's refusal to admit Charon
constituted a denial of the opportunity to receive medical
treatment as defined by the ADA.  As the jury previously found on
the VRA charge, and the court agreed, that Charon's AIDS/HIV
status was the motivating factor in Hull's refusal to admit him,
the court concluded that defendants' discriminatory action was on
the basis of Charon's disability.  Judgment was entered for the
plaintiffs, and the court ordered that defendants prominently
place signs in their waiting rooms stating:  "This health care
provider is prohibited by law from discriminating on the basis of
HIV or AIDS.  If you believe that this health care provider has
discriminated on the basis of AIDS or HIV, you may wish to
consult with an attorney."  The plaintiffs were represented by
Marc Elovitz of the ACLU AIDS & Civil Liberties Project.  P.T.

Federal Court Denies Habeas Relief In HIV Spitting Case

In Weeks v. Collins, 1994 WL 637442 (S.D.Tex., Oct. 11), the U.S.
District Court denied federal habeas corpus relief to an HIV+
prisoner who had been convicted of attempted murder and, based on
his prior record of two felonies, sentenced to life imprisonment
for spitting on a prison guard.  The Petitioner argued that the
prosecution failed to prove one of the elements of the crime
(that his actions tended to cause death) and that the trial judge
failed to give the jury adequate instructions on this issue.

Judge Gilmore first considered whether the prosecution's evidence
was sufficient to sustain the conviction.  Texas law defines an
attempt as "an act amounting to more than mere preparation that
tends but fails to effect" the intended offense.  The court cited
Texas cases interpreting "tends" to mean "could."  Relying on
Jackson v. Virginia, 99 S.Ct. 2781 (1979), the court stated that
"the critical inquiry is whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt." 
The record included evidence that: (1) some HIV patients have the
virus in their saliva, with greater likelihood if they need
dental work or have just eaten; (2) at the time of the incident,
the Petitioner was an HIV patient, needed dental work, and had
just eaten; (3) experts testified that HIV could be transmitted
via saliva if it contacts a mucous membrane; and (4) the
Petitioner spat into the victim's nose, which is lined by a
mucous membrane.  The record also included evidence that HIV
would not be transmitted in the attack, but the court decided
that it was "unable to say that the [prosecution's] evidence was
so lacking in credibility or probative value that when viewed in
the light most favorable to the prosecution, no reasonable trier
of fact could have reached the same conclusion."

Regarding Petitioner's challenge to the sufficiency of the jury
charge, the court stated that it must consider the charge in the
context of the entire trial.  The court observed that "the
defense counsel's summation, without objection from the
prosecution or correction from the court, specifically stated the
prosecution's burden to prove the `tends' element beyond a
reasonable doubt."  Gilmore wrote, however, that the prosecutor
had inappropriately, incorrectly, and repeatedly claimed in his
closing argument that he did not have the burden of proving the
defendant's actions could have transmitted HIV.   The court
quoted the jury instructions: "A person commits an offense if,
with specific intent to commit an offense, he does an act
amounting to more than mere preparation that tends but fails, to
effect the commission of the offense intended."  Citing U.S. v.
Chagra, 807 F.2d 398 (5th Cir. 1986), another case in which the
reviewing court relied on the defense counsel's summation to
instruct the jury on the "tends" issue, the court ruled that the
jury instructions were adequate in the context of the entire
trial.

Judge Gilmore noted that the Petitioner had offered several
definitions of "tends," defining the term "to require, at a
minimum, that his act not be so incompatible with effecting the
intended offense as to make the offense virtually impossible of
achievement."  The only fact pattern the court discussed to
support its even broader definition of "tends" (making "tends"
synonymous with "could") involved an attack with a lug wrench,
with testimony that the wrench "could be" used to kill a person. 
Alexander v. McCotter, 775 F.2d 595 (1985).  Generally accepted
evidence would suggest, however, that being attacked with a lug
wrench is significantly more life-threatening than being spit on
by a person with HIV; this distinction places this case outside
the scope of the Alexander fact pattern.  Moreover, it can be
questioned whether the Petitioner received the fair benefit of
adequate jury instructions when the trial court failed to resolve
explicitly the conflicting burdens of proof propounded by the
prosecution and the defense.  Nevertheless, "despite [the]
Court's own personal concern about this conviction," Gilmore
denied the habeas petition.  O.R.D.

Connecticut Supreme Court Holds City Not Covered By Insurance in
Suicide Death of HIV+ Prisoner

An insurer has no obligation to cover defense costs incurred by
an insured municipality being sued in a wrongful death action
when the insurance contract excludes coverage for "all damages
arising out of activities of the police . . . or other law
enforcement agencies" and the municipality is being sued by the
estate of an HIV+, drug addicted man who committed suicide while
in police custody.  Town of Wallingford v. Hartford Accident and
Indemnity Company, 1994 WL 620926 (Conn. Supreme Ct., Nov. 8). 
The decedent received no medical attention upon his arrest for
shoplifting, despite the police department's knowledge of his
emotional distress, his HIV+ status, and his request for medical
attention.  The officer monitoring the decedent's cell did not
observe the cell until after the suicide by hanging, and an
officer instructed to attempt resuscitation declined to do so
based on the inmate's HIV status.  The Supreme Court (Berdon, J.)
found that the insurance contract excluded coverage for suits
involving municipal activities surrounding the suicide that were
clearly "activities of law enforcement agencies".  Justice Berdon
distinguished a prior case in which a municipal indemnity
contract excluded coverage for damages arising out of "the law
enforcement activities of the police," suggesting that such a
clause might exclude only arresting activities, as distinguished
from one which excluded coverage for damages arising "out of
activities of the police or other law enforcement agencies." 
R.B.

AIDS State Litigation Notes

The Supreme Judicial Court of Massachusetts has permitted that
state's medical review board to revoke the license of a physician
deemed grossly negligent because he had performed HIV testing
without the requisite consent and misread HIV test results, but
who was found to have been suffering from a mental disorder at
the time.  Waisbren v. Board of Registration in Medicine, 1994 WL
622159 (Nov. 8).  An administrative law judge recommended
supervised practice, given the physician's undertaking of
treatment for the disorder.  But Justice Lynch affirmed the
medical review board's ultimate decision to suspend the
physician's license, despite his seeking treatment, because it
was well within the board's powers to find, as it did, that
"petitioner's conduct deviated from standard practice and
constituted a grave betrayal of his responsibility as a
physician."  R.B.

In Doe v. Yale University, 1994 WL 591711 (Oct. 19), the
Connecticut Superior Court denied the plaintiff's motion in
limine, motion for a protective order and/or for an order of
preclusion to suppress evidence.  The plaintiff, who was a first-
year resident at defendant's hospital and tested HIV+ after
sticking herself with a needle while performing an arterial line
insertion on an AIDS patient, claims defendant was negligent in
not adequately training or supervising her.  Although she
contends that she did not feel comfortable performing this
procedure, she previously completed a questionnaire in which she
stated that she did feel comfortable performing the procedure. 
The court denied her motion, rejecting her claims that the
questionnaire was protected by statute, that the defendant failed
to disclose the questionnaire pursuant to the discovery rules, or
that the defendant had represented that the questionnaire would
be confidential.  The court concluded that any confidentiality
afforded the questionnaire had been waived by the plaintiff when
she raised the issue in her deposition and that "it would not
serve the ends of justice" to permit her to testify in support of
her position, while suppressing evidence that contradicted her.
C.B.R.

California's Medical Injury Compensation Reform Act requires that
any claim for punitive damages in a medical malpractice case be
asserted by way of an amendment to the complaint with permission
of the court.  In Williams v. Superior Court, 1994 WL 657862
(Nov. 22), the California Court of Appeal, 4th District, applied
a broad reading of this requirement to bar a punitive damage
claim in an AIDS phobia case. Jenny Williams, a non-employee of
San Diego Rehabilitation Institute, was drawing blood from an
Institute Patient who "had a propensity to attack female
personnel" about which the Institute did not warn Williams.  The
patient acted on this propensity, resulting in a needle stick
injury to Williams, who was subsequently informed that the
patient was HIV+.  Williams and her husband filed suit for
personal injuries/premises liability, negligent infliction of
emotional distress, intentional infliction of emotional distress,
loss of consortium and failure to warn, including a claim for
punitive damages.  The court struck the punitive damages claim on
defendant's motion, and Williams sought a mandate from the court
of appeal ordering reinstatement of that claim.  Williams argued
that this was not a "professional negligence" case covered by the
special statute, contending that the statute was intended to deal
with suits by patients for injuries suffered from negligent
treatment by physicians.  The court of appeal rejected this
argument, finding that the statute was intended to apply broadly
to all actions against health care providers and institutions for
injuries to anybody arising out of medical treatment situations. 
A.S.L.

Jones County, Mississippi, Circuit Court Judge Billy Joe Landrum
has ordered HIV tests performed on blood samples drawn from two
gay men who were found murdered Oct. 7 in Laurel, Mississippi,
according to the Washington Blade (Nov. 18).  Defendant Marvin
McClendon claims he shot the men in self-defense when they
threatened to force him to have sex with them, and his attorney
argued that the HIV status of the men might be relevant to the
self-defense claim.  Landrum ordered that the test results be
kept under seal until he determined whether they would be
admissible as evidence.  A.S.L.

HIV-infection alone is not a basis for reducing the sentence of a
person with an extensive criminal record, according to the NY
Appellate Division, 2nd Department, in People v. Alvira, 1994 WL
660474 (Nov. 21).  The defendant was convicted by a jury on a
variety of related drug charges.  He appealed his sentence,
claiming it was too harsh in light of his HIV status, but the
court said "it is well settled that affliction with the HIV virus
[sic] is not, in and of itself, a ground for reducing an
otherwise appropriate sentence."  * * *  To similar effect is
State v. Woller, 1994 WL 643665 (Nov. 16), in which the Wisconsin
Court of Appeals refused to modify a sentence imposed on an HIV+
defendant.  In chambers before sentencing, Woller had informed
the court of his HIV status but asked that the information be
kept confidential and not mentioned in court.  Later, on appeal,
Woller claimed the court did not take his HIV status into account
at sentencing, citing the transcript which reflected no mention
of his HIV status by the sentencing judge.  The court held he
couldn't have it both ways.  The appeals court rejected Woller's
argument that his health status (which had proceeded to full-
blown AIDS since the sentencing) was a "new factor" that hadn't
been considered by the trial judge.  "At sentencing, the court
was aware of Woller's health status.  There is no indication that
his health is something which strikes at the very purpose for the
sentence imposed.  The sentence was primarily based on the
seriousness of the offense.  The extent of Woller's health needs
is a fact which the trial court could have considered at the
original sentencing and is not a new factor."  The court also
rejected Woller's argument that his sentence should be modified
because of inadequacies in prison medical care.  A.S.L.

Upholding a decision by the New York State Division of Human
Rights that a nursing home had unlawfully discriminated against
an HIV+ patient, the New York Appellate Division, 2nd Department,
nonetheless ordered a reduction in the damages awarded for the
client's pain and suffering.  Marcus Garvey Nursing Home, Inc. v.
New York State Division of Human Rights, 1994 WL 660430 (Nov.
21).  The Division found that the nursing home unlawfully placed
patient Anthony Frazier in strict isolation after he tested HIV+,
and refused to allow him to use a public telephone for the same
reason.  Frazier presented evidence that "he was lonely,
depressed, agitated and generally tearful as a result of his
isolation," a condition lasting for 9-1/2 months.  Based on this
testimony, the Division awarded $150,000 damages for mental
anguish.  Finding this award "excessive," the Appellate Division
said "there was no evidence as to the severity or consequences of
his condition, nor was there any evidence that Frazier sought any
medical treatment for it." Consequently, the case was remanded to
the Human Rights Division "for the imposition of a new award not
to exceed $75,000."  A.S.L.

The Tennessee Court of Appeals decision in Sherman v. Sherman,
which we reported last month, has been withdrawn and superseded
by a new opinion, issued Nov. 18 (1994 WL 649148).  The court
seems not to have modified any of its holdings from the prior
ruling, upholding the child visitation rights of a father who
lives with his gay brother (whose lover died from AIDS in August
1991), but has issued the new opinion to address an issue not
dealt with in the prior opinion: whether the trial court erred in
requiring that the father and other members of his family undergo
HIV testing on a regular basis as a condition of continued
visitation.  The court held that "without proof that testing is
necessary to protect a child's health, the courts cannot and
should not condition custody or visitation on a parent's
agreement to submit to period AIDS testing," citing Doe v. Roe,
526 N.Y.S.2d 718 (N.Y.Sup.Ct., 1988).  The court found no
evidence in the record documenting such a necessity, and found
that the trial court acted arbitrarily in ordering such testing. 
According to the court, the mother could only prevail in
requiring such testing by "presentation of competent expert proof
concerning the transmission of the human immunodeficiency virus
and the nature of the risks of being infected by the virus in a
setting such as the Shermans' horse ranch in North Carolina." 
A.S.L.

In 1989, the Maine legislature enacted a statute prohibiting
health insurance companies from writing policies that have a
preexisting condition exclusion of more than six months (24
months in the case of a medical condition that requires ongoing
treatment). P.L. 1989, ch. 867, sec. 8.  In 1991, Herbert
Wentworth filed a complaint with the Maine Bureau of Insurance
claiming that his health insurer, American Republic, had refused
to remove a preexisting condition exclusion from his policy. 
Wentworth's insurance policy was guaranteed renewable and could
not be canceled by American Republican unless Wentworth failed to
pay premiums.  The Superintendent of Insurance held for
Wentworth.  American Republic sought judicial review; the
Superior Court found the statute unconstitutional as applied to
guaranteed renewable policies because it was a restraint on the
insurance company's ability to contract.  The Superintendent of
Insurance appealed to the Supreme Judicial Court of Maine.  In an
opinion by Justice Roberts, the court held the statute
constitutional,  American Republic Ins. Co. v. Superintendent of
Insurance, 647 A.2d 1195 (Sept. 21), finding that although the
statute imposes a substantial impairment on ability to contract,
the burden was overcome by a significant and legitimate public
purpose of providing greater access to health care to Maine
residents.  In addition, the court found that the impairment on
American Republic was lessened because the company could still
seek a rate increase on the policies affected by the statute. 
T.V.L.  

AIDS Federal Litigation Notes

The U.S. Court of Appeals for the Federal Circuit upheld
Burroughs Wellcome's patents for AZT in fiercely contested
litigation.  Burroughs Wellcome Co. v. Barr Laboratories, Inc.,
1994 WL 652402 (Nov. 22).  The court found that Burroughs' early
work in AZT development entitled it to most of the patent rights,
and that attempts by Barr to seek FDA permission to produce
generic AZT in competition with Burroughs infringed the patent. 
Barr had relied on the participation of government scientists at
the NIH in the development process of AZT as a basis for
questioning Burroughs' patent rights. The decision is actually
more complex than this brief summary can encapsulate; those with
a particular interest in the issue are strongly urged to read the
court's detailed discussion of the issues.  A.S.L.

What was shaping up into one of the most notorious AIDS
discrimination trials so far has ended with a whimper, as "Scott
Doe," a Philadelphia attorney with HIV infection, agreed to
settle his federal and state AIDS discrimination claims against
Kohn, Nast & Graf, the firm that allegedly discharged him after
discovering he was HIV+.  The settlement came Oct. 31, in the
midst of trial in the U.S. District Court for the Eastern
District of Pennsylvania before Judge Gawthrop.  The terms of
settlement were kept confidential by the parties.  Although some
of the court hearings were broadcast to a national audience on
Court TV without disguising the plaintiff, he insisted on a
pseudonym for his surname in order to keep the various published
opinions in the case from providing a permanent record of his
identity and thus potentially limiting his future employment
potential.  See BNA Daily Labor Report No. 210, 11/2/94, A-4. 
After the settlement was announced, "Doe," who had appeared in
televised courtroom sessions, announced his name to the press:
Scott Burr.  Philadelphia Inquirer, Nov. 3. A.S.L.

Judge Conlon of the U.S. District Court, N.D. Illinois, refused
to dismiss a suit charging that the Chicago Police Department
unlawfully conducts non-consensual HIV testing of applicants for
employment, and denies employment to HIV+ applicants.  Doe v.
City of Chicago, 1994 WL 654492 (Nov. 17).  The two plaintiffs,
suing as John and Jane Doe, were each required to submit to pre-
employment physicals, during which blood was drawn.  Neither was
advised that their blood would be tested for HIV antibodies, nor
asked for the informed consent required under the Illinois AIDS
Confidentiality Act.  Both were subsequently informed that they
had tested HIV+, but neither was given the counseling mandated by
the Illinois law.  Both of them were subsequently denied
employment by the department.  They each asserted claims under
section 504 of the Federal Rehabilitation Act, 42 U.S.C. sec.
1983 (U.S. Constitution, 14th Amendment claims), and the Illinois
Act.  Although Judge Conlon dismissed some aspects of the case,
the court held that the Doe plaintiffs had alleged facts
sufficient to make out viable claims against both the City of
Chicago and Dr. James J. Bransfield, the police department
medical officer who administered the physicals and subsequently
notified them about their HIV status.  Of particular significant
was Conlon's finding that it was proper to assert pendent
jurisdiction in what is essentially a federal employment
discrimination case over state confidentiality law claims, as
arising out of the same nucleus of operative fact as the federal
claims.  A.S.L.

U.S. District Judge Forrester ruled in Foote v. Folks, Inc., 3
A.D. Cases (BNA) 1342, 1994 WL 549591 (N.D.Ga., Sept. 16), that
the estranged wife of an employee does not have standing under
the employment provisions of the Americans With Disabilities Act
to bring a claim against the ex-husband's employer for excluding
AIDS coverage under the company's health plan.  According to
Judge Forrester, only a "qualified individual with a disability"
within the meaning of 42 U.S.C. sec. 12111(a) can bring such a
suit; this definition, says the court, is clearly limited to
applicants for employment or employees.  Forrester also held that
the plaintiff lacks standing to challenge the exclusion of AIDS
coverage under ERISA.  A.S.L.

A sailor may not recover maintenance from his employer cruise
line for HIV infection when such condition was discovered in a
pre-employment physical exam, says a Florida federal court. 
Bynum v. Premier Cruise Lines, Ltd., 1994 WL 617067 (M.D.Fla.,
July 2).  The injury or illness, for which a maritime employer
would traditionally be liable in maintenance, did not occur or
manifest itself during the sailor's employment.  Judge Adams held
that the sailor's testimony that he believed he contracted the
virus during prior sexual encounters with men and women brought
his maintenance claim under the exception which provides no
recovery when an illness arises from the "vices or wilful
misconduct" of the maritime employee.  R.B.

The U.S. Navy-Marine Corps Court of Military Review ruled Sept.
14 that a service member who is HIV+ did not receive ineffective
assistance of counsel when his civilian attorney failed to raise
the "neurological or stress-related effects of the petitioner's
HIV-positive medical condition either in defense or mitigation"
during the petitioner's court martial on charges of dereliction
of duty and soliciting sodomy.  Shelby v. U.S., 40 M.J. 909.  The
court found indications in the record that not disclosing
petitioner's HIV status appeared to be a strategic decision taken
at trial.  In an unsworn note delivered to the trial court at
petitioner's request, it was mentioned that he "has serious
medical problems that are afflicting him at this time [and] he
has a bad heart and has other medical problems that are being
dealt with."  A.S.L.

AIDS Law & Society Notes

At an international conference held in Paris on World AIDS Day
(Dec. 1) attended by representatives of 42 countries, including
U.S. Secretary of Health & Human Services Donna Shalala, pledges
were made toward implementing a new United Nations program to
improve prevention campaigns and fight discrimination against
persons with AIDS.  Particular comment was made about unnecessary
international travel and immigration restrictions (as to which
the United States is one of the egregious offenders, thanks to
Sen. Jesse Helms and others following the herd instinct in
Congress).  

President Clinton has appointed Patsy Fleming, who was serving on
an interim basis, to be the Administration's AIDS Policy
Coordinator.  Fleming, a former legislative assistant to the late
U.S. Rep. Ted Weiss of New York, was most recently a senior
assistant to Secretary Shalala.  A.S.L.

PUBLICATIONS NOTED & ANNOUNCEMENTS

ANNOUNCEMENTS

The University of Southern California has established a center
for scholars in residence working on gay, lesbian, bisexual and
transgender studies.  For information, contact Prof. Walter L.
Williams, Program for the Study of Women and Men in Society,
Univ. of Southern California, Los Angeles, CA 90089-0036.

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Adams, William E., Jr., Pre-Election Anti-Gay Ballot Initiative
Challenges: Issues of Electoral Fairness, Majoritarian Tyranny,
and Direct Democracy, 55 Ohio St. L.J. 583 (1994).

Carbone, June, Income Sharing: Redefining the Family in Terms of
Community, 31 Houston L. Rev. 359 (Summer 1994).

Coles, Matthew, Equal Protection and the Anti-Civil-Rights
Initiatives: Protecting the Ability of Lesbians and Gay Men to
Bargain in the Pluralist Bazaar, 55 Ohio St. L.J. 563 (1994).

Goldberg, Suzanne, Facing the Challenge: A Lawyer's Response to
Anti-Gay Initiatives, 55 Ohio St. L.J. 665 (1994).

Herman, Didi, Rights of Passage: Struggles for Lesbian and Gay
Legal Equality (Univ. of Toronto Press, 192 pages, 1994) (for
orders in the U.S., inquire to University of Toronto Press, 340
Nagel Drive, Buffalo, N.Y. 14225).

Iijima, Ann L., Minnesota Equal Protection in the Third
Millenium: "Old Formulations" or "New Articulations"?, 20 Wm.
Mitchell L. Rev. 337 (Spring 1994).

Moriss, Andrew P., Exploding Myths: An Empirical and Economic
Reassessment of the Rise of Employment-At-Will, 59 Mo. L. Rev.
679 (Summer 1994).

Nussbaum, Martha C., Platonic Love and Colorado Law: The
Relevance of Ancient Greek Norms to Modern Sexual Controversies,
80 Va. L. Rev. 1515 (Oct. 1994) (essay).

Page, Richard Kirk and Kay Hartwell Hunnicutt, Freedom for the
Thought That We Hate: A Policy Analysis of Student Speech
Regulation at America's Twenty Largest Public Universities, 21 J.
Coll. & Univ. L. 1 (Summer 1994).

Richards, David A.J., Sexual Preference as a Suspect (Religious)
Classification: An Alternative Perspective on the
Unconstitutionality of Anti-Lesbian/Gay Initiatives, 55 Ohio St.
L.J. 491 (1994).

Rivera, Rhonda R., Where Are We? Anti-Gay-Lesbian-Bisexual Ballot
Attacks Today, 55 Ohio St. L.J. 555 (1994).

Steenson, Michael K., Fundamental Rights in the "Grey" Area: The
Right of Privacy Under the Minnesota Constitution, 20 Wm.
Mitchell L. Rev. 383 (Spring 1994).

Toulon, Erik J., Call the Caterer: Hawaii to Host First Same-Sex
Marriage, 3 S. Cal. Rev. of L. & Women's Studies 109 (Fall 1993).

Wilets, James D., Pressure From Abroad: Gay Rights Fight, 21 Hum.
Rts. (ABA) No. 4, 22 (Fall 1994).

Wojcik, Mark E., Using International Human Rights Law to Advance
Queer Rights: A Case Study for the American Declaration of the
Rights and Duties of Man, 55 Ohio St. L.J. 649 (1994).

Book Reviews:

Copus, Gary, Review of The Trial of Dan White by Salter, 18 Crim.
Justice Rev. 288 (Autumn 1993).

Thompson, William, Review of Porn: Myths for the 20th Century by
Stoller, 18 Crim. Justice Rev. 291 (Autumn 1993).

Student Notes & Comments: 

Bamforth, Nicholas, Sado-Masochism and Consent, The Criminal L.
Rev. [U.K.] (September 1994), pp. 661-664.

Brownstein, Amy R., Why Same-Sex Spouses Should be Granted
Preferential Immigration Status: Reevaluating Adams v. Howerton,
16 Loyola of L.A. Int'l & Comp. L.J. 763 (June 1994).

Cox, Juliet A., Judicial Enforcement of Moral Imperatives: Is the
Best Interest of the Child Being Sacrificed to Maintain Societal
Homogeneity?, 59 Mo. L. Rev. 775 (Summer 1994).

Scheller, John C., PC Peep Show: Computers, Privacy, and Child
Pornography, 27 John Marshall L. Rev. 989 (Summer 1994).
Sergent, Randolph, Sex, Candor, and Computers: Obscenity and
Indecency on the Electronic Frontier, 10 J. L. & Politics 703
(1994).

Swindell, Virginia Mixon, Children's Participation in Custodial
and Parental Right Determinations, 31 Houston L. Rev. 659 (Summer
1994).

Specially Noted:

The New York Law Journal featured a front-page report on domestic
partner benefits at law firms on Nov. 14.  Edward A. Adams, Firms
Offer Gay Couples Medical Benefits.  The article was sparked by a
program jointly presented by the Lesbian and Gay student group at
N.Y.U. law school and the Lesbian and Gay Law Association of
Greater New York.

Symposia:

The Constitutionality of Anti-Gay Ballot Initiatives, 55 Ohio St.
L. J. No. 3 (1994) (individual articles noted above).

AIDS & RELATED LEGAL ISSUES: 

Alexander, Susan, Preemployment Inquiries and Examination: What
Employers Need to Know About the New EEOC Guidelines, 45 Lab. L.
J. 667 (Nov. 1994).

Baig, Ellen Fell, AIDS and Workers' Compensation Law, Florida Bar
Journal, November 1994, p. 75.

Brierton, Thomas D., An Examination of the ADA's Direct Threat
Defense, 45 Lab. L. J. 618 (Oct. 1994).

Min, Kollin K., The White Plague Returns: Law and the New
Tuberculosis, 69 Wash. L. Rev. 1121 (Oct. 1994).

Severson, Margaret, Protection or Prevention: Testing the
Prisoner Population for Communicable Diseases, 18 Crim. Justice
Rev. 203 (Autumn 1993).

Student Notes & Comments:

Leech, R. Brian, Criminalizing Sexual Transmission of HIV:
Oklahoma's Intentional Transmission Statute: Unconstitutional or
Merely Unenforceable?, 46 Okla. L. Rev. 687 (Winter 1993).

Renna, Leonardo, New York State's Proposal to Unblind HIV Testing
for Newborns: A Necessary Step in Addressing a Critical Problem,
60 Brooklyn L. Rev. 407 (1994).

Robichaud, Todd David, Toward a More Perfect Union: A Federal
Cause of Action for Physician Aid-in-Dying, 27 U. Mich. J. L.
Reform 521 (Winter 1994).

Yip, Ivan, AIDSPhobia and the `Window of Anxiety': Enlightened
Reasoning or Concession to Irrational Fear?, 60 Brooklyn L. Rev.
461 (1994).

Book Reviews:

English, Abigail, HIV Orphans: Protecting the Most Vulnerable, 60
Brooklyn L. Rev. 341 (1994) (review of C. Levine, ed., A Death in
the Family: Orphans of the HIV Epidemic (Bantam Books, 1993)).

Specially Noted:

The Canadian HIV/AIDS Legal Network has begun publication of a
newsletter, Canadian HIV-AIDS Policy & Law Newsletter, which will
be issued six times a year.  To judge by the first issue, which
we've just received, the caselaw summaries will provide some
coverage of sexual orientation issues as well as AIDS issues. 
Subscription inquiries can be faxed to 514-526-5543.  The charge
within Canada is $30 for individuals and community groups, $60
for institutions; for USA and overseas subscribers, the charge is
US$30/US$60.  Correspondence should be directed to Canadian
HIV/AIDS Legal Network, 4007 de Mentana, Montreal, QC, Canada H2L
3R9.  

ANNOUNCEMENTS

Editor's Note:

All points of view expressed in Lesbian/Gay Law Notes are those
of identified writers, and are not official positions of the
Lesbian and Gay Law Association of Greater New York.  All
comments in Publications Noted are attributable to the Editor. 
Correspondence pertinent to issues covered in Law Notes is
welcome and will be published subject to editing.