Date: Thu, 13 Apr 1995 11:51:16 -0400
From: mertzel@lawabel.com (Nancy Mertzel)

If you have any questions concerning copyright etc., feel free to contact
Art at asleonard@aol.com.

LESBIAN/GAY LAW NOTES
Lesbian & Gay Law Association of Greater New York
ISSN 8755 9021
January 1995
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013,
212-431-2156, fax 431-1804; e-mail: asleonard@aol.com
Contributing Editor: Colin Crawford, Instructor, Brooklyn Law School
Contributing Writers: Monica Barrett, Esq., New York; Otis Damslet, Esq., New York; Steven
Kolodny, Esq., New York; Todd V. Lamb, Esq., New York; Michael S. Ryan, Esq., New
York; Dirk Williams, Esq., Boston; Robin Miller, Esq., Seattle; Paul Twarog, Student, New
York; Robert Bourguignon, Student, Brooklyn; Philip Friedman, Student, Brooklyn; Clarice B.
Rabinowitz, Student, Brooklyn; Klayton Fennell, Student, Florida.
Circulation: Audrey Hartmann, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003.
212-353-9118.
(C) 1995 by Lesbian & Gay Law Association of Greater New York$30/yr by subscription
(Foreign Rate US$35)

TENNESSEE COURT HOLDS STATE CONSTITUTION PROTECTS GAY SEX
Davidson County, Tennessee, Circuit Judge Walter C. Kurtz ruled Dec. 7 that the Tennessee
Constitution's privacy right protects the rights of same-sex couples to engage in sexual activity. 
 Campbell v. McWherter, No. 93C-1547.  Kurtz reached this conclusion as a prerequisite to
determining whether the plaintiffs had standing to bring a declaratory judgment action
challenging the state constitutionality of T.C.A. Section 39-13-510, which provides: "It is a
Class C misdemeanor for any person to engage in consensual sexual penetration, as defined in
Section 39-13-501(7), with a person of the same gender." (T.C.A. Section 39-13-501(7) defines
"sexual penetration" as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other
intrusion, however slight, of any part of the person's body or of any object into the genital or
anal openings of the victim's, the defendant's or any other person's body, but emission of semen
is not required."
A group of lesbian and gay Tennessee residents brought suit, asserting that their constitutional
privacy rights were endangered by the existence of this statute, and documenting that there had
been at least 25 prosecutions under the statute in recent years.  The state moved to dismiss,
arguing that the plaintiffs, who had not themselves been prosecuted, lacked standing, and that
on the merits the court should follow the U.S. Supreme Court's ruling in Bowers v. Hardwick,
478 U.S. 186 (1986), which held that the privacy right found in the 14th Amendment does not
extend to "homosexual sodomy."  Kurtz stated that determining the standing issue required a
preliminary determination of whether a fundamental right protected by the state constitution was
involved, because in cases of fundamental rights rather broad standing entitlement is recognized
by Tennessee courts.
The Tennessee Supreme Court recognized a state constitutional right of privacy in Davis v.
Davis, 842 S.W.2d 588 (1992), in which a divorcing couple was battling over custody rights to
fertilized embryos they had conceived for later implantation, and the court had reiterated its
recognition of a privacy right in some subsequent decisions.  After producing lengthy quotations
from Justice Harry Blackmun's dissent in Hardwick as well as recent comments praising that
dissent in tributes to Justice Blackmun recently published in the Harvard Law Review (see
Publications Noted, below), as well as lengthy quotations from state supreme court decisions in
Kentucky and Pennsylvania striking down sodomy laws, Judge Kurtz concluded that the
Tennessee Constitution would similarly accord the status of a fundamental right to same-sex
sexual intimacy:
"The Court is of the opinion that private sexual conduct between consenting adults is protected
from government regulation or interference by the privacy rights guaranteed by the Constitution
of Tennessee.  This conclusion is reached by reference to the Davis case and to the hostility
expressed in the Constitution to the interference with the personal freedoms of the people of this
state unless that interference is absolutely necessary in order to protect the public welfare.  It
is inconsistent with the state constitutional right of privacy and liberty to prohibit behavior based
on majoritarian morality.  The right to privacy does not, however, only relate to place or, one
might say, secrecy with respect to personal behavior.  It is a right of independence in making
certain important personal decisions with the ability to conduct oneself in accordance with those
decisions, undeterred by governmental restraint.  This right includes the right of sexual
expression with another consenting adult regardless of the gender of the sex partner."
In light of this finding, Kurtz noted that the state would have to demonstrate a compelling
interest to sustain the statute, and "that there is no other feasible regulation less intrusive on the
fundamental right that could satisfy the state's compelling interest."  Noting that in its brief the
state had argued that public health was a compelling interest, Kurtz observed that the plaintiffs
had sharply contravened this contention in their responsive papers, thus setting up a factual
dispute requiring trial.  In a footnote, however, Kurtz expressed skepticism about any attempt
by the state to use the AIDS epidemic as a basis for sustaining the statute, commenting that the
law would seem overbroad for that purpose: "The statute pertains to all homosexual contact,
including female to female contact.  Female to female contact have [sic] never been shown to
contribute to the spread of AIDS.  Secondly, the act appears to prohibit sex acts between males
which do not significantly contribute to the spread of AIDS."
Having ruled that a fundamental right is at stake, Kurtz found it easy to conclude that the
plaintiffs had standing to challenge the statute.  He refrained from addressing equal protection
theories, as unnecessary to this decision to reject the state's dismissal motion.  Presumably the
case will now go to trial with the state bearing the heavy burden of showing that the ban on all
same-sex intercourse is necessary to achieve a compelling interest of the state.  Abby Rose
Rubenfeld, chair-elect of the American Bar Association's Section on Individual Rights and
Responsibilities, former co-chair of the National Lesbian and Gay Law Association, and former
legal director of Lambda Legal Defense & Education Fund, is lead counsel for the plaintiffs. 
She practices as a law firm partner in Nashville, Tennessee.  A.S.L.

LESBIAN/GAY LEGAL NEWS 
Federal Court Upholds Firing of Homophobic S.F. Commissioner
In Lumpkin v. Jordan, 1994 WL 669852 (Nov. 22), the U.S. District Court for the Northern
District of California dismissed Rev. Eugene Lumpkin's suit against Mayor Frank Jordan and
the City and County of San Francisco, finding that Jordan did not violate Lumpkin's civil rights
when the mayor removed him from his position on the San Francisco Human Rights Commission
after Lumpkin made anti-gay remarks to a reporter.  Lumpkin, a Baptist minister, was appointed
by Mayor Jordan in August 1992.  In June 1993, Lumpkin was quoted in the San Francisco
Chronicle saying: "It's sad that people have AIDS and what have you, but it says right there in
the scripture that the homosexual lifestyle is an abomination against God.  So I have to preach
that homosexuality is a sin."  Although there was an enormous public outcry about his remarks,
Jordan initially declined to remove Lumpkin.  Two months later, however, Lumpkin was again
interviewed, this time on a live television broadcast where he was identified as a Human Rights
Commissioner.  In response to the question of whether he believed homosexuality to be an
"abomination," Lumpkin responded: "Sure, I believe everything the Bible sayeth."  Asked
whether he believed the Book of Leviticus, which stated that a man who sleeps with a man
should be put to death, Lumpkin responded: "That's what it sayeth. . .  God delivered this
pronouncement to the nation of Israel after it came out of bondage of Egypt."  Three days later,
Jordan removed Lumpkin after he refused to resign.
Rev. Lumpkin alleged two causes of action: the first under the California Fair Employment and
Housing Act; the second under 42 U.S.C. Section 1983, claiming a violation of freedom of
speech, the Free Exercise Clause, and the Establishment Clause of the First and Fourteenth
Amendments.  Lumpkin also alleged similar violations of the California Constitution.  In
granting defendants' motion for summary judgment, Judge Smith first analyzed the free speech
claim in terms of the government's interest in balancing between the interests of a public
employee (as a citizen) in commenting on matters of public concern, and the interests of the state
(as an employer) in promoting its public services through its employees.  Pickering v. Board of
Education, 391 U.S. 563, 568 (1969).  Smith noted that the Supreme Court created an exception
to the general rule that public employees cannot be disciplined for exercising First Amendment
rights by distinguishing between public employees who are in policy-making positions and those
who are not.  Elrod v. Burns, 427 U.S. 347 (1978).  Finding that Lumpkin was a policymaker,
Smith decided that Jordan could reasonably interpret his failure to renounce violence against gays
and lesbians as undermining the policies of the Commission, the very entity Lumpkin served. 
Therefore, Lumpkin's removal was not violative of his freedom of speech.
Using the Pickering balancing test to analyze Lumpkin's Free Exercise of Religion claim, and
noting that, as in the context of free speech, the government is given greater latitude in
regulating the religious expression of its employees, Smith found that Jordan's interest in
preventing disruption to the goals of his Administration outweighed Lumpkin's interest in
expressing his religious beliefs.  In dismissing Lumpkin's Free Exercise claim, Smith noted that
Lumpkin was free to hold and express his religious beliefs.  However, since his beliefs clashed
so dramatically with the Administration and undermined the public confidence in the
Commission, the Mayor was justified in removing Lumpkin.  Finally, dismissing Lumpkin's
claim under the Establishment Clause, Smith, citing Lemon v. Kurtzman, 403 U.S. 602 (1971),
held that the Mayor's action did not have the primary effect of disapproving of plaintiff's
religious belief.  Rather, Smith found that Jordan at all times showed respect for Lumpkin's
religious beliefs, but properly removed him because his religious beliefs were at odds with the
goals of the Commission.  Judge Smith granted defendants' motion for summary judgment on
the federal claims and, except for the state establishment law claim, declined to exercise
supplemental jurisdiction over the state law claims and dismissed them without prejudice. M.B.
Colorado Petitions Supreme Court to Review Amendment 2 Ruling
The State of Colorado has appealed the Colorado Supreme Court's decision in Evans v. Romer,
882 P.2d 1335 (Oct. 11), to the U.S. Supreme Court.  Romer v. Evans, Nos. 94 SA 48 and 94
SA 128 (12/9/94).  Direct appeal lies to the U.S. Supreme Court from state court decisions
invalidating state laws on federal constitutional grounds.  In Evans, the state's supreme court
ruled that Amendment 2, a measure passed by 53% of Colorado voters in the November 1992
general election, unconstitutionally imposed unequal rules for participation in the political
process on lesbian, gay and bisexual Coloradans, by forbidding the state or its political
subdivisions from adopting any policies that would protect such persons from discrimination. 
Colorado Attorney General Gale Norton asserted that the court's decision went "far beyond the
issue of sexual orientation," according to a story in BNA's Daily Labor Report No. 236
(12/12/94), p. A-21.  "Under the Colorado Supreme Court's theory," she asserted, "any time
democratically enacted laws impede an identifiable group's objectives, the Constitution is
violated.  This theory gives groups more than the right to participate in the democratic process. 
It confers the right to never lose."  In its petition to the Supreme Court, Colorado argues that
its state supreme court has, in effect, extended protected status to all identifiable groups, thus
providing "the basis to attack a wide range of routine" legislation.  One example given by
Norton was smokers, an identifiable group that might mount a constitutional challenge to laws
restricting smoking in various locations.  This argument, of course, misstates and
over-generalizes the Colorado court's rationale, which relied on identifying equal opportunity
to participate in the political process as a fundamental right, and which pointedly refrained from
passing on the question whether sexual orientation is a suspect or quasi-suspect classification for
Equal Protection purposes.  A.S.L.

Federal Litigation Notes
In McDaniels v. Delaware County Community College, 1994 WL 675292 (E.D.Pa., Nov. 21),
District Judge Ludwig denied plaintiff's motion for a new trial limited to damages pursuant to
Fed. R. Civ. Pro. 50(b).  The court also denied defendant's motion for judgment and a stay of
relief pursuant to Fed. R. Civ. Pro 50(b) and 62(b) and (c).  After a jury trial, plaintiff Frank
McDaniels was awarded reinstatement of his tenured teaching position and $134,081 back pay,
but denied relief on his claims of emotional and reputational harm.  Plaintiff had filed suit
alleging that he was denied a proper pre-termination hearing on the same-sex sexual harassment
charges filed against him.  In its motion for a new trial on damages, plaintiff relied upon
arguably prejudicial statements of defense counsel.  Specifically, plaintiff pointed to defense
counsel's summation, which included statements that he actually may have committed the sexual
harassment for which he was terminated.  The court, however, ruled that these statements did
not require a new trial since they were not materially prejudicial as they were part of the
evidence and were somewhat relevant.  C.B.R.
In a case that involved guilty pleas to two counts of wire fraud (18 U.S.C. Section 1343) in
collecting rejected credit card debt from phonesex users, U.S. District Judge Dalzell
(E.D.Pennsylvania, Dec. 6) applied a two-level enhancement to defendants' sentences, pursuant
to the application of federal Sentencing Guidelines, Section 3A1.1.  U.S. v. Miller, 1994 WL
702941.  The six defendants purchased at a discount credit card debt and collected the debt
through a telemarketing scheme that included calling debtors, convincing them that they had
made more calls or run up a higher bill than they actually did, threatening to reveal to the
debtor's family or employers that they had used a gay chat line and further harassing them by
yelling at them on the phone and calling them names.  The defendants were able to collect
approximately $3,800,000 on debts that only added up to $300,000. The judge found that the
case satisfied the text and purpose of Section 3A1.1, which was to punish more severely those
criminals who targeted victims who were unusually vulnerable to their criminal scheme.  In
applying the enhancement, Judge Dalzell, relying on  U.S. v. Lallemand, 989 F. 2d 936, 940
(7th Cir. 1993), found that the defendants had created a scheme where they selected certain
kinds of victims, in this case users of phone sex lines, who were particularly vulnerable to the
criminal conduct because they were less likely to defend themselves, less likely to be aware that
they were victims, and less likely to complain about the criminal conduct.  Dalzell noted that
it was fairly easy to conclude that many people who were users of phone sex lines will have a
particular desire to keep their use private, and that defendants' purchase of only phone sex debt
revealed a knowledge of the desire for privacy in sexual matters and a hunch that the desire for
privacy could be exploited. M.B. 
There was a report on-line Dec. 23 by a Hawaiian gay rights group that U.S. District Judge
Harold Fong (Hawaii) had granted a temporary restraining order, finding that the state's
Commission on Sexual Orientation and the Law was improperly constituted because several
members were specifically appointed as representatives of religious organizations.  The lawsuit
was brought by a fundamentalist Catholic and a minister of the Assembly of God.  The judge
ordered that representatives of the Roman Catholic and Mormon Churches could not be
appointed as organizational representatives, but that the governor should appoint new members
to replace them without regard to religious representation. A.S.L.
U.S. District Judge William Dwyer of Washington State has ordered the Navy to hold off on
discharging Machinist Mate 2nd Class Mark Philips on grounds of homosexuality, while Dwyer
considers Philips' argument that the current policy on gays in the military violates the
constitution.  According to the Seattle Post-Intelligencer (Dec. 24), Dwyer has set a hearing for
Feb. 22.  Philips was one of those who came out publicly after Clinton's election in November
1992; the Navy promptly moved to discharge him, and he responded with a lawsuit.  The Navy
then backed off, pending a possible change of policy.  The Navy instituted a new discharge
proceeding against Philips in July, 1994, under the new policy.  Dwyer had delayed ruling on
Philips' case earlier, pending a decision by the 9th Circuit in Meinhold.  Now that Keith
Meinhold has been ordered reinstated and the Justice Department has waived any further appeal,
Dwyer is ready to proceed to the merits. A.S.L. * * * U.S. District Judge Eugene Nickerson
refused to certify an interlocutory appeal from his denial of a motion to dismiss the case of Able
v. United States, the pending challenge to the "don't ask, don't tell" policy in the U.S. District
Court for the Eastern District of New York.  1994 WL 687616 (Dec. 2).  Nickerson held that
there was no "substantial ground for difference of opinion" as to his ruling on the motion to
dismiss for failure to exhaust administrative remedies, and that an the issue was not ripe for
appeal of his ruling on the equal protection claim.  The government was already ensconced in
an appeal to the 2nd Circuit of Nickerson's order barring the discharge of any of the plaintiffs
pending the outcome of the case; argument on that appeal was held Dec. 12.  A.S.L.
Alaska Supreme Court Rules on Property Disposition in Break-Up of Lesbian Couple
In D.M. v. D.A., 1994 WL 671558 (Dec. 2), the Alaska Supreme court considered an appeal
in an action for dissolution of a partnership of a lesbian couple.  At issue was the valuation and
allocation of interest in the couple's principal residence and of assets of a horse breeding
business which they had jointly held.  The sexual orientation of the parties was not at issue in
the decision, save for the care which the court showed to conceal their identities and gender. 
Indeed, gender could only be determined by a close reading of the facts.
The couple began an "intimate personal relationship" early in 1985.  Except for a 3 month
period in 1986, they lived together from early 1985 until March 1991, first in D.M.'s house,
then in D.A.'s.  In December 1988, D.A. quitclaimed her interest in her property to herself and
D.M. "in consideration of love and affection."  At the time of trial, assets of the partnership also
included two Arabian stallions, a mare, and two foals.  The couple separate in March 1991 and
signed a separation agreement a month later dividing their property.  The agreement was never
performed.  Instead, D.A. filed a petition for dissolution of the partnership in May 1991, and
D.M. counterclaimed for enforcement of the agreement and partition of the principal residence.
The trial court held the agreement void based on a finding of duress (a history of domestic
violence which D.M. did not dispute on appeal), and concluded that D.M. was entitled to no
interest in the principal residence because the parties were found to have intended the transfer
to D.M. to have been made solely for tax purposes.  Because the trial court found that D.M.'s
contributions to costs relating to the principal residence above and beyond rental approximately
equalled D.A.'s interest in the partnership, D.M. was awarded all interest in the horse breeding
business.  The trial court also divided up the other personal property.
On appeal, the Alaska Supreme Court held that the trial court had handled the matter too
casually, and ruled that the division of the property held jointly was to be in accordance with
procedures in place for any other business relationship.  The trial court made its factual
determinations on D.A.'s reformation of her quitclaim deed based upon a preponderance of the
evidence.  This was improper, ruled the Supreme Court, as the evidentiary standard in
reformation cases was "clear and convincing evidence."  The trial court was to consider on
remand whether the conveyance had been intended to be a gift, or pursuant to a contract between
the parties, for which parol evidence could be considered.  If the conveyance was pursuant to
contract, D.A. would have to prove that it was not intended to have conveyed an undivided half
interest and, if so, what interest was intended to be conveyed.  In considering this question, the
trial court was directed to consider how tax deductions for the property were to be allocated, the
cohabitation of the parties, other joint financial acts, and how other properties previously held
individually were to be disposed of.  The Supreme Court also ruled that the value of the horse
breeding business was to be recalculated, because the numbers used by the trial court simply did
not add up. S.K.
State Litigation Notes
The South Dakota Supreme Court refused to hold that the award of primary child custody to a
mother cohabiting with her lesbian partner is per se not in the best interests of the child.  In Van
Driel v. Van Driel, 1994 WL 685454 (Dec. 7), the court, in addressing the father's custody
challenge, upheld the trial court's finding that the mother and her partner were "loving and
caring parents" and admonished that "[p]ersonal conceptions of morality held by the members
of this Court have no place in the resolution of this controversy."  Justice Miller distinguished
a prior case where a woman had "taken the children to gay bars, had allowed the children to
sleep with her and her partner while the mother was unclothed, had kissed and caressed her
partner in front of the children despite protests by her oldest son, and had continued a sexual
encounter rather than comfort her child after the child had discovered her engaged in sexual
activity."  The court found that there was "no evidence of this type of behavior in this case" and
that the lesbian couple was "affectionate and attentive toward the children, while being discreet
about the sexual aspects of their own relationship."  Clinical psychological reports and the
testimony of neighbors and friends of the couple further persuaded the court as to the validity
of the custody award. R.B.
The Arizona Supreme Court rejected a petition for certiorari in Blain v. Golden State Container,
in which the state's court of appeals ruled May 5 that there was no cause of action under state
common law for private sector employment discrimination on the basis of sexual orientation. 
(The court of appeals decision is unpublished.)  Jeffrey L. Blain claimed he was fired because
he was a gay man with AIDS.  The trial judge charged the jury that if it found Blain was fired
because he has AIDS, it should rule for Blain, since AIDS discrimination violates state disability
law, but that if the discharge was due to Blain's sexual orientation, there was no liability.  The
jury held for the employer.  Blain appealed, contesting the jury charge.  The court of appeals
wrote that "sexual preference has nothing to do with job performance" but that only the
legislature, not the courts, could confer a right of action in such a case.  Arizona Republic, Dec.
7.  A.S.L.
In the appeal of a conviction for attempted murder, the Texas Court of Appeals rejected Dorris
Kemp's claim that her lawyer's failure to ask potential jurors about their opinion of
homosexuality was ineffective assistance of counsel.  Kemp v. State, 1994 WL 68189 (Tex.
App. 1st Dist., Dec. 8).  A jury convicted Kemp of attempting to murder the husband of a
woman with whom she claimed to have had a clandestine affair.  The woman, Gwen Sonnier,
had become upset and "went crazy" when Kemp confronted her and her husband about the
affair.  Feelings boiled over, culminating in what Kemp claimed was an accidental shooting of
Edgar Sonnier.  The court found nothing in the record on appeal to rebut the strong presumption
that the decision not to question jurors about sexual orientation was within the wide range of
sound trial strategies.  In addition, Kemp had not shown that she was prejudiced by the failure
to ask the jurors about homosexuality.  The court suggested that it might have been more
sympathetic to the defendant's claim if it had been brought in the context of a habeas corpus
petition or a motion for new trial and accompanied by a record forcused on trial counsel's
conduct.  D.W.
Jones County, Mississippi Circuit Judge Billy Joe Landrum stirred national debate by ordering
the HIV testing of blood samples drawn from two murder victims.  Marvin McClendon, 17, has
confessed to the murders.  His defense is that the two men attempted to force him to have sex
with them, and he killed them in self-defense.  McClendon's attorney argues that the HIV status
of the victims is relevant to this defense.  Judge Landrum reserved judgment on whether to
admit evidence of the HIV status, but issued a pretrial ruling that McClendon may introduce
evidence about the sexual orientation of the victims as part of his defense.  A.S.L.
In yet another twist in efforts to interpret state adoption laws to allow second parent adoptions,
Kings County (Brooklyn, N.Y.) Family Court Judge Paula Hepner ruled that a lesbian partner
seeking a second parent adoption should be treated as a step-parent and thus exempt from the
state's pre-certification requirement imposed in "stranger" adoption cases.  Matter of S.M.Y.,
NYLJ, 12/12/94, p. 34.  The court's ruling overturns the Adoption Clerk's rejection of the
petition on the grounds that the petitioner had not been certified as a "qualified adoptive parent"
and was ineligible to claim the step-parent exemption.  (It would seem that the Adoption Clerk
in this court is hostile to lesbian second parent adoption cases and attempted to bounce the
petition on technicalities rather than refer it on to the judge.)  After citing the substantial changes
that have occurred regarding family definitions and reality over the last two decades, Judge
Hepner reasoned that "[v]iewed in the context of the 1990's, step-parent adoption is nothing
more than one form of second-parent adoption."  As such, the legislative reason for
pre-certification did not exist in this case, where the child already is legally in the home and will
stay there regardless of what the court might decide.  Furthermore, the provision exempting
step-parents from pre-certification should be read broadly to include second parents.  "If the
phrase `second-parent' is not viewed as the etymological successor to the phrase `step-parent,'
the law would mean that only married heterosexuals have the privilege of raising a family whose
children enjoy all of the legal rights and benefits appertaining thereto."  P.L.E.  
An unmarried heterosexual couple in western New York was not as successful, as the N.Y.
Appellate Division, 4th Department, affirmed a decision by Judge Morgan of the Oneida County
Family Court that the couple could not jointly adopt the biological child of the female partner. 
Three members of the 5 member panel held that the adoption statute "does not permit adoption
by two unmarried persons." Matter of Jacob; Roseanne M.A. and Stephen T.K., 1994 WL
714058 (Dec. 23).  In a lengthy dissent, Justices Samuel Green and John Balio objected to the
majority's literalistic interpretation of the statute.  "A literal or strict construction of statutory
language contained in our adoption laws is neither mandated by case law nor warranted by
public policy," they argued.  "[I]n considering whether a petition for adoption should be granted,
it is essential that the object and purpose of the adoption law be strictly observed, not that the
statutory language be strictly construed."  They contended that granting this adoption petition
would be "consistent with the object and purpose of providing a parent-child relationship for the
welfare of the child. . .  Further, the proposed adoption of Jacob is in harmony with that general
objective and purpose.  Petitioners assert that they are living together in a committed relationship
and that they are the de facto parents of Jacob."  The dissenters noted the growing collection of
cases in which same-sex partners are bringing adoption petitions and the lack of existing
appellate precedent on the question in New York, and concluded: "An interpretation of the
adoption laws that authorizes one unmarried person to adopt but deprives two unmarried persons
living together in a functional family setting the right to adopt the child of one of them
contravenes the legislative purpose of giving legal effect to a parent-child relationship as well
as the humanitarian purpose of fostering parent-child relationships that are within the best
interests of the child." A.S.L. 
A Utah trial judge held Nov. 13 that a lesbian co-parent may seek visitation with the son of her
ex-partner, according to a report in the Washington Blade on Dec. 23.  A.I. v. C.D., Utah 3rd
District Court.  Judge Leslie Lewis found that A.I. had met the legal standard of assuming the
status and obligations of a parent, according to the Blade report.  A.S.L.
Nineteen national and state groups joined in four amicus briefs filed with the Virginia Supreme
Court in the pending appeal of Bottoms v. Bottoms, 444 S.E.2d 276 (Va.App., June 21), a
custody dispute between a 3-year-old boy's lesbian mother and grandmother.  All of the groups,
which ranged from the Virginia Women Attorneys Association to the National Association of
Social Workers, argued that the court of appeals had correctly reversed the trial court's decision,
which had awarded custody to the grandmother because of the mother's sexual orientation and
cohabitation with another woman.  The ACLU is lead counsel for the lesbian mother.  No
amicus briefs were filed in support of the grandmother. Richmond Times-Dispatch, Dec. 29. 
A.S.L.
In an unpublished opinion, Cook County (Illinois) Circuit Judge Aaron Jaffe upheld a decision
by the Chicago Commission on Human Relations that Ron Jasniowski, a landlord, violated the
city's human rights law by refusing to rent an apartment to an unmarried heterosexual couple. 
Jasniowski claimed he was exercising his constitutionally protected right to free exercise of
religion; as an Evangelical Christian, he could not conscientiously support "immoral activity"
such as sex between unmarried persons, which he assumed would occur in the apartment.  In
his ruling, Jaffe said, "The landlord has a right to (his) free exercise of religion.  However, the
landlord's free exercise of religion does not give (him) the right to coerce others as to how they
must live or what morals they must conform to."  Jasniowski v. Chicago Commission on Human
Rights (Dec. 22).  Chicago Tribune, Dec. 23.  The U.S. Supreme Court recently denied review
in an Alaska case presenting the same issue, in which the Alaska Supreme Court held in favor
of the rejected tenant. A.S.L.
New York County Civil Court Judge Anne Katz ruled that a man who claimed to be the "same
sex spouse" of a former resident of residential property owned by Plon Realty Corporation was
not entitled to succeed to the tenancy due to lack of evidence necessary to satisfy regulations
adopted by the NY State Division of Housing and Community Renewal pursuant to the Court
of Appeals decision in Braschi v. Stahl Associates Co., 74 N.Y.2d 201 (1989).  Plon Realty
Corp. v. Parpas, NYLJ, Dec. 21, 1994, at 22 (N.Y. City Civ. Ct., N.Y. Co., Housing Part
18-R).  The last recorded tenant of the apartment was Costas Parpas, who "had a roommate
whose name was Marius Serghiou who lived with him for more than two years as a same sex
spouse," according to the court.  Then Parpas vacated the apartment in about 1974, leaving
Serghiou in residence for the next 19 years, although rent checks were written on a checking
account bearing Parpas' name.  Salvatore Liriano moved into the apartment in 1981 and lived
with Serghiou "as his same sex spouse" until Serghiou's death in 1989.  In this action, the
landlord sought to reclaim the apartment from Liriano, and Liriano claimed successorship rights
as a surviving partner of Serghiou.  The court awarded a final judgment of possession to the
landlord, noting that the record in the case was bereft of evidence of the kind of financial
entanglement suggested by the successorship regulations, such as joint bank accounts, wills,
canceled checks or receipts for shared household expenses or the like.  According to Katz,
"there was no evidence demonstrating the deep and committed relationship necessary to satisfy
the statutory standard," and there was also no evidence to support the claim that Serghiou was
entitled to be treated as a formal successor to Parpas; Liriano's claim was, in Katz's view,
predicated on Serghiou's right of tenancy.  A.S.L.
Judge Albert Blinder of the New York Court of Claims granted summary judgment to the state
in a false imprisonment case brought by a man acquitted on retrial in the brutal murder of a gay
man.  Blake v. State of New York, NYLJ, Dec. 29, p. 25.  Blake was convicted of murdering
Thomas Barnes, based on evidence that Blake and Barnes and left the Rawhide Bar together and
Barnes was subsequently found murdered in his apartment; a blood-soaked shirt similar to one
Blake was seen wearing in the bar was found at the crime scene.  On appeal, the court found
that although there was sufficient evidence to support the jury's verdict, Blake had not received
a fair trial because of the introduction of improper or prejudicial evidence, including 22 color
photographs showing the murdered Mr. Barnes in gory detail (including 54 stab wounds, slit
throat, and genitals cut off and stuffed in his mouth).  On retrial, Blake was acquitted.  In this
action, he sued the state for false imprisonment for the time he spent in prison prior to his
acquittal.  Judge Blinder found that Blake had failed to show by clear and convincing evidence
that he did not, in fact, commit the crime, and that this was the standard for a claim of false
imprisonment against the state.  In his own testimony Blake could not definitely state which of
his various alibis was correct.  "When all is said and done," wrote Blinder, "claimant's case
depends upon his affirmatively proving that he was somewhere other than at the scene of the
crime.  He cannot expect this Court to believe that he was not there if he cannot state where he
was.  Claimant's deposition testimony has placed the Court in the unusual position of having to
find claimant incredible, as a matter of law."  A.S.L.
Last month we reported on a ruling in Jane Doe v. Daily News, L.P., N.Y.Sup.Ct., N.Y. Co.,
NYLJ, 11/16/94, p.21, holding that the lesbian plaintiff in a libel action against Daily News
columnist Mike McAlary could proceed anonymously.  The plaintiff, an alleged rape victim,
claimed that McAlary libelled her in his column by asserting that she had fabricated the rape
charge in order to use it in her activities against anti-gay violence.  McAlary claimed that
confidential sources in the police department informed him that the police did not believe her
claims.  Now, in Matter of Daily News, NYLJ, Dec. 21, 1994, p. 24 (Sup. Ct., Kings Co.),
Justice Gilbert Ramirez has denied a demand by McAlary and the News for access to police
records that they claim they need to defend the libel action.  Finding that the investigation of the
rape claim is ongoing and that disclosure of active police files would endanger that proceeding,
Justice Ramirez noted the strict confidentiality accorded by statute to sex crimes files, but also
observed that McAlary could always seek to depose both Jane Doe and his "alleged police
source" as part of discovery in the libel case.  A.S.L.
Polk County, Oregon, Circuit Judge Charles E. Luukinen sentenced James P. Harder to two
years probation, 10 days in jail, and 100 hours of community service after he pleaded no contest
to a charge of intimidating two women because he thought they were lesbians.  Harder's attorney
protested that the sentence was unduly harsh for a misdemeanor plea.  Controversy arose about
whether Harder should continue to be employed as a firefighter by the city of Portland. 
Oregonian, Dec. 9.  A.S.L.

Domestic Partnership Notes
Proskauer Rose Goetz & Mendelsohn, a leading New York City law firm, has extended domestic
partnership benefits to lesbian and gay employees, according to the NY Law Journal (Dec. 5). 
In a Nov. 14 memo distributed to firm personnel, the firm explained that the benefits would be
available to same-sex partners under the Oxford Health Plan, and established detailed eligibility
criteria, including a requirement of documentation of joint residence. * * *  New high-tech
additions to the domestic partnership ranks include Novell Corporation (in Utah and California)
and Cambridge Technology Partners, Inc. (in Massachusetts). Also noted in a recent news report
was California Pacific Medical Center, which has a dispute with a former employee over
whether the employee's partner is eligible for continuation coverage under COBRA.  The Center
takes the position that COBRA extension is limited to persons recognized as family under IRS
regulations, which do not cover domestic partners.  San Francisco Sentinel, Dec. 14. * * * As
part of the settlement of a long-running labor strike, the Mark Hopkins Hotel in San Francisco
agreed to a domestic partnership benefits plan for employees, covering health and welfare
benefits, sick leave and funeral leave.  San Francisco Sentinel, Dec. 21. * *  * The Albany
(N.Y.) Times Union will now accept announcements of lesbian and gay commitment ceremonies
for inclusion on its wedding announcement page.  (See Letter to the Editor, Dec. 23, p. A10.) 
This must provide a real thrill to the incoming administration of Governor George Pataki, who
has announced his intention to try to terminate the domestic partnership benefits negotiated by
the Cuomo Administration with state employee unions over the past several months. * * * The
federal Office of Personnel Management announced that under the Family and Medical Leave
Act, which went into effect for federal workers on Dec. 2, federal workers would be entitled
to take sick leave to care for their unmarried heterosexual or homosexual domestic partners. 
This interpretation was to be incorporated into final rules promulgated for enforcement of the
Act. A.S.L.

Initiative & Referendum Notes
West Palm Beach, Florida, voters will go to the polls Jan. 10 to determine whether to repeal the
city's law banning sexual orientation discrimination.  Florida Circuit Judge Richard Wennet
denied a request Dec. 22 to hold an emergency hearing on the validity of the ballot measure. 
Palm Beach Post, Dec. 23.  A referendum on repealing similar ordinances in Tampa will be held
on March 7. * * * The virtually final count on Measure 13 in Oregon, according to a Dec. 4
story in The Oregonian, was 630,628 no to 592,746 yes, or a margin of about 51.5% to 48.5%
-- much closer than the significant margin reported shortly after the balloting.  Hundreds of
thousands of absentee ballots were solicited, mainly by right-wing groups, and they came
terrifyingly close to changing the outcome, resulting in a margin not much greater than the
paper-thin margin by which Prop 1 was defeated in Idaho. * * * The Clinton Administration was
derided for cowardice in editorials coast-to-coast for deciding against filing an amicus brief in
the pending 6th Circuit appeal of the legal challenge to Cincinnati's Measure 3.  Although civil
rights officials within the Justice Department argued that filing such a brief would be consistent
with President Clinton's public pronouncements against anti-gay ballot measures earlier in the
year, others warned that affirmance of District Judge Spiegel's ruling in Equality Foundation v.
City of Cincinnati, 860 F.Supp. 417 (S.D.Oh. 1994), could jeopardize the Administration's
defense of the "don't ask, don't tell" military policy.  Spiegel held that sexual orientation
classifications merit heightened scrutiny under the Equal Protection Clause. A.S.L. 
Law & Society Notes
The final shoe dropping?  The American Medical Association's House of Delegates adopted a
report during December calling for "non-judgmental recognition of sexual orientation by
physicians," and abandoned a policy position adopted in 1981 which supported treatments
intended to change the sexual orientation of gay people.  The new policy paper says that while
gays may have "some unique mental health concerns" due to societal oppression, the use of
"aversion therapy" to suppress their same-sex urges "is no longer recommended for gay men and
lesbians."  The Gay and Lesbian Medical Association (formerly known as the American
Association of Physicians for Human Rights) stimulated the process leading to adoption of the
new policy position, which was widely reported in the national press. 
The Clinton Administration decided not to nominate openly-gay San Francisco civic leader James
C. Hormel as ambassador to Fiji.  The nomination had been widely expected, but, according
to some news reports, the administration backed off after word came from the Senate Foreign
Relations Committee staff that the incoming committee chair, Senator Jesse Helms of North
Carolina, would block the nomination. * * * President Clinton forced the resignation of Surgeon
General Joycelyn Elders on Dec. 9, after she was reported to have answered a question at a
World AIDS Day program by indicating that she might support inclusion of information about
masturbation in public school sex education programs. * * * Senator Strom Thurmond of South
Carolina and Senator Daniel R. Coats of Indiana, incoming chairs of the Senate Armed Service
Committee and its Subcommittee on Manpower and Personnel, indicated they had no immediate
plans to take up the issue of gays in the military, but Coats indicated in an interview with the
Washington Times (Dec. 29) that he might hold hearings to monitor the Justice Department's
policies in its enforcement of the version of the "don't ask, don't tell" policy enacted last year,
suggesting that the Department may not be adequately whole-hearted in its enforcement actions,
as evidence by its decision not to appeal the Meinhold ruling to the Supreme Court. 
A study released by the New York City Gay & Lesbian Anti-Violence Project documented that
bias-related homicides of gays are less often solved than non-bias homicides, and usually involve
more egregious violence.  The study, covering a period of two years, involved careful follow-up
study of 151 homicides, and received extensive exposure in national media during the week
before Christmas. 
Shareholders of Cracker Barrel Old Country Stores against rejected gay-friendly shareholder
resolutions at their annual meeting on Nov. 22.  Cracker Barrel became the subject of protest
when it adopted an expressly anti-gay employment policy in January 1991.  The policy was
formally rescinded under fire, but the chain has refused to reinstate those who were discharged
or to adopt a non-discrimination policy covering sexual orientation.  
The newest civil rights category: The San Francisco Board of Supervisors voted in December
to join Seattle, Minneapolis and Santa Cruz in banning discrimination against transgender
persons, defined in the measure as transsexuals, transvestites, and people who have sex organs
of both genders, or undefined sex organs.  Mayor Frank Jordan was expected to sign the
legislation, which had unanimous support on the Board. 
Gay fingerprints?  That's the latest evidence for a genetic factor in sexual orientation, according
to a report in the December issue of Behavioral Neuroscience.  Two researchers at the
University of Western Ontario found that a statistically significant number of gay men had more
ridges in their fingerprints on their left hands than non-gay men.  Are folks grasping at straws
at this point, or this there something meaningful in this?  
The Washington Blade (Dec. 16) reported that a sexual privacy bill was passed by the Australian
Senate on Dec. 9.  Previously passed by the House, the bill is intended to override the sodomy
law in the state of Tasmania, the only Australian jurisdiction that has refused to end its ban on
consensual sodomy.  The Tasmanian Gay and Lesbian Rights Group will continue to pursue an
effort to have the High Court order removal of the sodomy provisions from the Tasmania
Criminal Code.  A.S.L.

Israel Supreme Court Decision
The following analysis of the Israel Supreme Court's recent decision in Danilowitz v. El Al has
been provided by Alon Harel, a Lecturer in Law at the Hebrew University, Jerusalem:  "The
Danilowitz case is probably the most important legal case for homosexuals in Israel.  This is the
case of a male homosexual flight attendant who lived with a male partner for a long time and
wanted to get the benefit to which heterosexual couples (including unmarried heterosexual
couples) were entitled under a labor agreement.  The statute which regulates employment
discrimination is the Equal Opportunities in Employment Act.  The Act was amended in 1992
to prohibit discrimination on the grounds of sexual orientation.  In addition, the statute prohibits
discrimination on grounds of gender, marital status or parental status.
"The Court's decision by Vice Chief Justice Barak is based primarily on the statute.  Justice
Barak also mentions that the principle of equality is established in numerous other statutes
including The Basic Law: Human Dignity and Freedom, which entitles the courts to override
legal norms (including statutes in certain cases) which are incompatible with it.  This broad
reasoning based not only on the Act suggests that the applicability of the case could extend
beyond employment relations.  The decision of Justice Barak as well as the more
strongly-worded concurring decision by Justice Dorner enables although does not necessitate an
interpretation which applies to contexts in which the Act does not apply.  The minority position
by Justice Kedmi is based primarily on a narrow linguistic or conceptual analysis and seems to
be incompatible not only with the majority position in this case, but with the more value-oriented
approach of the Israel Supreme Court as a whole.
"Despite this optimism, it is worthwhile pointing out the following: First, the case is based on
a clear statute, which prohibits discrimination on grounds of sexual orientation.  A judge with
no normative commitment to gay equality can easily make the same decision without stretching
any legal norms.  Hence, the decision of the Court in itself does not indicate any sympathy
towards gay equality.  In this respect, it is worth mention that Justice Barak, who is a very
influential Justice and a leading activist on the Court, wrote a rather cautious decision with very
little reference to gays as such.  Justice Dorner, on the other hand, seems clearly to be more
sympathetic to gays as a group and regards discrimination against them as one which raises
special concerns.  Second, most of the recent legislative successes of the gay movement in
Israel, including the abolition of the criminal prohibition on homosexual conduct and the Equal
Opportunities in Employment Act, were based on the absence of organized powerful opposition
to gay rights.  But this case as well as other recent events generated a powerful backlash against
gays in particular as well as against the recent activism of Israeli courts.  It is hard therefore to
predict the overall impact of the case on the future of gay rights in Israel."
Mr. Harel is spending the academic year in residence at U.S.C. Law School in Los Angeles,
and can be contacted on-line at AHarel@law.usc.edu by those interested in Israeli gay legal
issues.
Professional Notes
The National Law Journal named openly-gay Bruce A. Lehman, the U.S. Commissioner of
Patents and Trademarks, its "Lawyer of the Year" for his work on helping to establish the legal
principles that will govern the information superhighway. 
The National Gay and Lesbian Task Force named Melinda Paras, a member of the San
Francisco Health Commission, to be its new executive director.  The announcement brought
considerable controversy in the gay press, in light of Paras' controversial past as an
administrator at the Shanti Project, as a far left politico, and as an policymaker in the
administration of Mayor Frank Jordan.  A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 
D.C. Circuit Holds Federal Government Immune from Section 504 Damage Claim
A 3-judge panel of the D.C. Circuit ruled that the federal government is immune from claims
for damages under Section 504(a) of the Rehabilitation Act of 1973, 29 U.S.C. Section 794(a). 
Dorsey v. U.S. Department of Labor, 1994 WL 700831 (Dec. 16).  Writing for a unanimous
court, Judge Randolph concluded that the government had not waived its sovereign immunity
from such suits. 
James Dorsey suffered HIV-related discrimination while trying to participate in the Job Corps,
a federal program that provides job training and education (usually in a dormitory environment)
to needy persons aged 14 to 22.  Dorsey joined the program in Ohio in 1987 and submitted to
a mandatory HIV test, which came back positive.  Dorsey was expelled pursuant to a policy of
excluding anyone with HIV, and sued in 1988.  In 1989, the Corps revised its policy, making
exclusion of HIV-positive applicants discretionary, and invited Dorsey to re-apply.  Dorsey
applied and enrolled in a Kentucky center to study cooking, but suffered harassment by fellow
students who discovered he had HIV.  Dorsey transferred back to Ohio, but suffered similar
harassment after a teacher disclosed his HIV status.  Dorsey sued, demanding declaratory and
injunctive relief and damages.  
The district court dismissed Dorsey's claims for declaratory and injunctive relief as moot, but
allowed his claim for damages.  On the government's motion, the district court reconsidered and
dismissed the damages claim also, based on sovereign immunity.  The D.C. Circuit affirmed,
rejecting the conclusion in Doe v. Attorney General, 941 F.2d 780 (9th Cir. 1990), which had
upheld a private right of action for damages against the government under Section 504.  Judge
Randolph cited a subsequent Supreme Court decision holding that a waiver of sovereign
immunity must be "unequivocally expressed" and "establish unambiguously that the waiver
extends to monetary claims" in order to allow such claims.  United States v. Nordic Village,
Inc., 112 S.Ct. 1011, 1014, 1015 (1992).  The Act does not explicitly provide a private right
of action for compensatory damages.  While this right has been judicially implied as against
private defendants, the court ruled that sovereign immunity prevented extending that implication
to suits against the federal government.  O.R.D.
Federal District Court Refuses to Protect HIV+ Physician 
On Dec. 8, Judge James McGirr Kelly of the U.S. District Court, Eastern District of
Pennsylvania, ignored current medical research and studies in finding that an HIV+ physician
posed a significant risk to his patients and therefore was not entitled to the protections of the
Rehabilitation Act or the Americans With Disabilities Act.  Scoles v. Mercy Health Corp. of
Southeastern Pennsylvania, 1994 WL 686623.  In 1991, Dr. Paul Scoles, an orthopedic surgeon,
informed his employer, Mercy Health Corp., that he had tested HIV+.  Subsequently, Mercy
severely restricted Dr. Scoles' medical privileges, both surgical and non-surgical.  Scoles sued
alleging that Mercy violated Section 504 of the Rehabilitation Act by discriminating against him
on the basis of his handicap while receiving federal funding.  Scoles also alleged that Mercy's
actions violated Section 101 of the Americans With Disabilities Act.
On Mercy's motion for summary judgment, the court purported to apply the four-prong test
from School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987), and dismissed Scoles'
Rehabilitation Act and Americans With Disabilities Act claims.  Arline held that there must be
a "significant risk" to the health and safety of others to justify discrimination against someone
with a communicable disease.  The factors for determining what risks are "significant" are (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 cause harm.  The court acknowledged that there
is almost no risk of transmission of HIV from physician to patient.  However, the court held that
since the probability of contracting AIDS if you are HIV+ is high and AIDS is an incurable
disease that most likely causes death, any risk of contracting the disease is a significant risk. 
In other words, the consequences are too severe for the risk to be less than significant.  
Catherine Hanssens, AIDS Director of Lambda Legal Defense and Education Fund, said in a
press release denouncing the decision: "This decision runs counter to both science and common
sense, and gives effect to unsubstantiated fears about people living with HIV."  Attorneys for
Lambda are considering an appeal.  T.V.L.
Federal Jury Awards $125,000 For HIV Status Disclosure
A federal court jury awarded $125,000 in compensatory damages to an HIV+ man whose public
employer violated his 14th Amendment privacy rights by divulging his HIV status to others
(1994 Daily Lab. Rep. [BNA] No. 237, D-12, Dec. 13).  Pierce, an executive officer at the
Southeastern Pennsylvania Transportation Authority (SEPTA), was reviewing prescription benefit
plan records which listed each employee by name as well as the medications claimed under the
plan.  Through a consultation with SEPTA medical staff about the medications plaintiff had
claimed, she learned that plaintiff was receiving medication used exclusively to treat HIV
infection.  Pierce disclosed this information to another executive as well as the plaintiff's
supervisor.  The SEPTA medical department informed the plaintiff that Pierce had discovered
his condition and suit was brought.
On Dec. 1, the district court permitted the action to go forward over SEPTA's motion for
summary judgment.  Doe v. Southeastern Pa. Transp. Auth., 1994 WL 683382 (E.D.Pa.). 
Judge Yohn found that there were genuine issues of material fact as to whether plaintiff had a
"reasonable expectation of confidentiality" in the prescription information since plaintiff testified
that he had asked his employer whether prescriptions filled through the plan would remain
confidential.  Plaintiff claimed that his privacy was violated by SEPTA when it failed to request
prescription information without names, by Pierce when she did not cease reading the
prescription report when she realized it included names and by divulging plaintiff's HIV status
to his supervisor, and by Pierce and the other executive when they learned of plaintiff's HIV
status.  Pierce claimed that she requested the report in order to audit the prescription plan's
usage for fraud and that she showed the report to the other executive in order to determine
whether it was formatted in a manner that would be helpful to the audit.  The court found that
this testimony presented a genuine issue of fact as to the governmental interest asserted in
obtaining the information.  The court finally found that there was a factual issue as to whether
there were sufficient safeguards in place to ensure the confidentiality of the information in the
prescription reports.
After denying defendant's summary judgment motion, the court went on to outline potential
defenses which SEPTA might raise at trial, including whether plaintiff had standing to challenge
SEPTA's act of obtaining confidential information from a third party (a pharmacy), whether the
"plain view" doctrine might apply, and whether SEPTA might be protected by the doctrine of
"qualified immunity."  After trial, however, the jury returned a favorable verdict for plaintiff. 
SEPTA, in post-trial motions, will argue that the verdict is unsupported by the evidence and will
claim a legitimate need to know which employees were using what drugs.  BNA reports that
SEPTA's attorney believes that a right of privacy which prevented an employer from auditing
its prescription plan would be "pretty far-reaching" (1994 DLR No. 237, d-12).  R.B.
In a related development, Doe settled a companion suit against Rite Aid of Pennsylvania, Inc.
on Dec. 22, that was pending in the Philadelphia Court of Common Pleas.  See BNA Daily Lab.
Rep. No. 246, 12/28/94, at A-13.  Doe claimed that Rite Aid had violated Pennsylvania's
Confidentiality of HIV-Related Information Act by giving Doe's employer a drug utilization
report that revealed Doe's HIV status by identifying him as an employee receiving AIDS-related
drugs.  Under the settlement, Rite Aid will modify its reports to employers on drug utilization
to avoid disclosing information that would reveal the HIV status of any employee.  A.S.L.
AIDS Federal Litigation Notes
In Protogyrou v. Farrell Lines, 1994 WL 673635 (4th Cir., Dec. 2), plaintiff-appellee was the
Administrator of the estate of Emmanuel Pikos, who became ill in December 1988 while serving
aboard defendant-appellant's ship.  Pikos entered the hospital in January, 1989, and tested
HIV+.  After his condition improved, Emmanuel was declared fit for service in June 1989. 
However, his condition soon worsened and he returned to the hospital in October 1989.  Pikos
sued defendant in admiralty for "maintenance and cure."  Defendant argued that it was free from
liability because a shipowner's duty to provide maintenance and cure (1) does not extend to
conditions caused by venereal disease and (2) because his particular condition (an acute form of
colitis) was incurable.  Further, defendant argued that its liability ended in January 1989 because
a shipowner's duty to provide cure extends only until the illness is cured or declared to be
permanent, also known as "maximum cure."   In a per curiam decision, a panel of the 4th
Circuit affirmed a district court finding that the evidence failed to establish that Pikos' HIV or
AIDS caused his colitis. The court also affirmed the district court's finding that an accurate
determination of Pikos' condition, which caused him to reach maximum cure, was not made
until December 1989.  Finally, the court affirmed the denial of prejudgment interest to the
plaintiff because the case was filed three years after the underlying events occurred and there
was a genuine dispute as to liability.  C.B.R.
In an unofficially published ruling, the 9th Circuit held Nov. 15 that ERISA preempts claims
under a state's HIV confidentiality laws.  Newton v. Barish Chrysler-Plymouth Medical Plan,
1994 WL 650013.  Plaintiff, administrator of the estate of a person with AIDS, claimed a
violation of Calif. Health & Safety Code Section 199.21 when the defendant medical plan
disclosed information about the decedent's HIV status in the course of its administration of the
plan.  "If state law were applied in this case, it would encroach upon the administration of the
Plan and its benefits," wrote the court per curiam, finding that under the circumstances (attempts
by the Plan to recoup payments it had made to health care providers before determining that the
decedent's HIV-status was a preexisting condition and thus that the payments were not
appropriate under the plan) it was reasonably necessary for the Plan to make the challenged
disclosures.  A.S.L.
Kathryn Griffin filed a claim for negligent infliction of emotional distress after the Red Cross
erroneously informed her that she had tested HIV+, and, one day later, she discovered she had
actually tested HIV-negative.  On Nov. 28, in Griffin v. American Red Cross, 1994 WL 675105
(E.D.Pa.), Judge Kelly granted the defendant's motion for summary judgment.  The court
refused to recognize a cause of action for negligent infliction of emotional distress based solely
on the plaintiff's "fear of AIDS."  "There can be no recovery on a claim that is based on the
fear of disease with accompanying physical injury where the injury does not arise out of
exposure to the disease itself," wrote Kelly.  C.B.R.
In Jones v. Plummer, 1994 WL 669844 (N.D.Cal., Nov. 21), U.S. District Court Judge Fern
Smith dismissed a pro se civil rights complaint of an inmate who sought to have his cellmate
removed because he believed the cellmate to be HIV+.  The plaintiff, a pre-trial detainee in the
Santa Rita County Jail,  stated that he was concerned for his own health as the cellmate's
girlfriend had recently died of AIDS, and the cellmate's appearance indicated he was in ill
health.  The court noted that two essential elements must be found to meet the requirements of
42 U.S.C. Section 1983.  One is the violation of a right secured by the Constitution or laws of
the United States; the other is that the alleged deprivation be committed by a person acting under
color of state law.  The court stated that "[d]eliberate indifference to serious medical needs
presents a cognizable claim for violation of the Eighth Amendment," but also found that in order
for deliberate indifference to be established, there must be a purposeful act or failure to act on
the part of the defendant.  Finally, the court noted that a person can make no claim for
deliberate medical indifference unless the denial was harmful.  The plaintiff maintained that his
health was in danger. The court addressed his concerns by reviewing the ways in which AIDS
can be transmitted, in its view: "(1) Through intimate sexual contact with an infected person;
(2) through invasive exposure to contaminated blood or certain other bodily fluids; or (3)
through perinatal exposure."  The court concluded that extensive and numerous studies have
consistently found no apparent risk of HIV infection to individuals exposed through close,
non-sexual contact with AIDS patients, and that, in a non-sexual context, an individual with
AIDS does not present a significant risk of communicating an infectious disease to others.  The
court dismissed the plaintiff's complaint, as his allegations did not support a finding that he has
serious medical needs to which the defendants are deliberately indifferent solely because he is
housed with someone who might be HIV+ or have AIDS. P.T.
HIV infection and full-blown AIDS are one and the same disease for purposes of the statute of
limitations governing negligent tort claims in Pennsylvania, according to Judge Buckwalter's
Dec. 16 decision in Smith v. American Red Cross, 1994 WL 708189 (E.D.Pa.).  Sallie R.
Smith died from AIDS on September 5, 1993, and her husband, as administrator of her estate,
filed suit a month later, claiming negligence, strict liability, breach of warranties, survival action
and wrongful death.  Some of those claims were stipulated out or dismissed; then the defendants
moved for summary judgment based on the 2 year statute of limitations.  Smith had become
infected during a 1984 operation, and learned of her infection on March 23, 1987, after her
doctor had her tested at the suggestion of the blood bank, which had discovered a donor to have
been infected.  Pennsylvania follows the "discovery" rule for HIV infection, under which the
2 year statute of limitations begins to run from the time the plaintiff learns of his or her
infection.  Seeking to defeat the motion for summary judgment, the plaintiff argued that HIV
and AIDS should be governed by Pennsylvania's "separate disease" rule, first announced in an
asbestos case, Marinari v. Asbestos Corp. Ltd, 612 A.2d 1021 (Pa. Sup. Ct. 1992).  Under this
rule, a person suffering an initial injury from asbestos exposure could bring an action limited
to damages for that injury, and could bring a subsequent action, governed by a separate statute
of limitations, if the exposure ripened into one of the variety of diseases that may be traced to
asbestos exposure.  This is an exception to the general rule requiring a plaintiff to assert all
existing and probable future claims in one action governed by one statute of limitations. 
Reviewing the reasoning of the court in Marinari, Judge Buckwalter found that the rationale of
that case did not apply to HIV/AIDS.  Whereas non-malignant asbestosis might or might not
progress to lung cancer or another serious illness, HIV infection progresses to AIDS in virtually
all cases, albeit at different rates in different individuals.  This was enough of a conceptual
distinction for Buckwalter to predict that the Pennsylvania courts would not apply the separate
disease rule.  A.S.L.
In a case closely watched by advocates for persons with AIDS, U.S. District Judge Thomas
Griesa rejected a challenge to N.Y.'s law against assisted suicide.  Quill v. Koppell, 1994 WL
702800 (S.D.N.Y., Dec. 15).  The suit was brought by three physicians and three self-described
terminally ill patients, including two with AIDS.  All three patients died before the opinion was
issued.  The plaintiffs contended that Sections 125.15(3) and 120.30 of the NY Penal Law
violated their due process and equal protection rights, and moved for preliminary injunctive
relief.  The state countered with a motion to dismiss, which the court treated as a motion for
summary judgment and granted.  Griesa found that assisted suicide did not come within the
ambit of existing recognized fundamental rights under the 14th Amendment, and asserted that
the plaintiffs had failed to make an argument that assisted suicide met the verbal formulations
articulated by the U.S. Supreme Court for recognizing "new" fundamental rights.  Rather, they
sought to rest on the Court's decision in Cruzan v. Director, 497 U.S. 261 (1990), recognizing
the right of a patient to refuse treatment, which Griesa found did not go far enough to bolster
the plaintiffs' case.  The court also rejected an equal protection claim, finding in the absence of
a fundamental right or suspect classification that the state had a rational basis for treating suicide
(which is not criminalized) and assisting a suicide (which is) differently, commenting: "it is
hardly unreasonable or irrational for the State to recognize a difference between allowing nature
to take its course, even in the most severe situations, and intentionally using an artificial
death-producing device.  The State has obvious legitimate interests in preserving life, and in
protecting vulnerable persons. . .  Under the United States Constitution and the federal system
it establishes, the resolution of this issue is left to the normal democratic processes within the
State."  The plaintiffs announced an intention to appeal to the 2nd Circuit.  A contrary decision
by a federal court in the state of Washington, Compassion in Dying v. Washington, 850 F.Supp.
1455 (W.D.Wash. 1994), is now on appeal to the 9th Circuit. A.S.L.
Last month we reported on Doe v. City of Chicago, 1994 WL 654492 (N.D.Ill. Nov. 17), in
which District Judge Suzanne Conlon refused to dismiss a suit charging that the police
department improperly subjected employment applicants to HIV testing.  On Dec. 1, Judge
Conlon a motion to certify a plaintiff class of similarly-situated individuals pursuant to Fed. R.
Civ. Pro. 23, finding that factual issues in the case were specific to each plaintiff rather than
generalized.  See 1994 WL 691644.  A.S.L.

AIDS State Litigation Notes
In Blue Cross & Blue Shield of Georgia, Inc. v. Sheehan, 1994 WL 670062 (Ga.App., Oct. 5),
a Georgia appeals court ruled that the insurer waived its right to object to false statements on
an application by failing to investigate within the 2-year statutory limit.  The insured made
several false statements on his policy application, including denying that he had been diagnosed
HIV+.  The insurer chose not to require a physical examination, and issued a policy that
included a legislatively mandated incontestability clause: "Two years after this contract is issued,
no false statements . . . in your application can be used to void the Contract [and] no claim can
be denied because of any false statement on your application."  The insured filed his first claim
after the expiration of the two-year period.  The insurer then rescinded the policy, arguing that
the application had been fraudulent. The insured sued for a declaratory judgment and contract
damages.  The insurer counterclaimed for rescission, reformation, and fraud.  Both sides
claimed attorneys' fees.  The insured filed a motion for summary judgment, which the trial court
granted with respect to all claims except fraud and both sides' attorney fees.  The appellate court
modified the decision, granting the insured's motion on all claims except his attorney fees. 
Writing for a unanimous court, Judge Pope cited the Georgia statute and case law establishing
that the insurer waived its right to contest the policy based on any discoverable fraud by failing
to investigate within two years of issuing the policy.  The insurer
argued that its fraud claim technically did not contest the policy, and thus should be allowed;
the court rejected this argument, reasoning that allowing the fraud claim would defeat the
purpose of the statute.  The court also rejected the insurer's argument that the two year period
was "tolled" by the insured's failure to file claims, noting that the insured had no duty to file
claims.  The court distinguished a case in which fraud was allowed as a defense, because in that
case the insurer did investigate but the insured deceived the investigator; the court stated that in
this case the insurer waived its rights by failing to investigate.  Having granted the insured's
motion on all substantive issues, the court granted it with respect to the insurer's attorney fees. 
The court rejected the insured's claim for his own attorney fees, however, noting that it had
never previously construed the exact provision at issue in the case, and that the defense was not
in bad faith or totally without legal basis.  O.R.D.
The Court of Appeals of Virginia held that a correctional facility nurse failed to sustain her
burden of proving that her HIV infection arose out of or in the course of her employment when
she alleged that she contracted the virus after she stuck herself with a syringe with which she
had drawn blood from an inmate.  Barnes v. Correctional Medical Systems, Inc., 1994 WL
684646 (Dec. 6).  The Workers' Compensation Board found that the plaintiff had been
hospitalized ten times in eleven years, had been exposed to blood and blood products throughout
her employment, had failed to prove that she was HIV- prior to the incident, could not name the
inmate on whom she had used the needle, and could not prove that the inmate was HIV+. 
While plaintiff's physician testified that her T-cell count accorded with HIV exposure at the time
plaintiff alleged, he could not conclude that her infection resulted from the incident.  The court
refused to overturn the Board's finding that plaintiff's HIV infection was not causally related to
her employment.  R.B.
A claim against a physician for breach of an oral promise of confidentiality regarding the HIV
status of the plaintiff-patient is covered by the Statute of Frauds, according to the N.Y. Appellate
Division, 4th Department, ruling in Doe v. Roe, 1994 WL 711942 (Dec. 23).  "The promise
of a physician to maintain the confidentiality of a patient's HIV status extends indefinitely
beyond the time that treatment is provided and continues until it is waived by the patient. 
Because the physician cannot waive the privilege, the promise is one that cannot be performed
within a lifetime," said the court in its per curiam decision, holding that the trial court erred
when it refused to allow the defendant to amend its answer to raise a statute of frauds defense. 
A.S.L.
The Court of Appeals of North Carolina affirmed summary judgment against Maesetta Rice in
her suit against School District of Fairfield in which she charged that the District had wrongfully
notified the South Carolina Department of Social Services (DSS) that Rice had been removed
from a work training position because of rumors that Rice had AIDS and other communicable
diseases.  Rice v. School District of Fairfield, 1994 WL 702841 (Dec. 12).  Rice had been
assigned to work in the cafeteria of Fairfield Middle School under a contract with DSS; Rice
received no compensation from the School, but continued to receive welfare checks from DSS
while participating in this work experience program.  When rumors spread that Rice had AIDS
and a number of students stopped eating lunch and threatened to boycott the cafeteria, the
cafeteria manager notified DSS, which verified that the rumors were occurring and ordered Rice
to leave that worksite.  Rice sued the school for notifying DSS.  The trial court dismissed the
case as not authorized under the state's torts claim act.  The appellate court found it was wrong
to dismiss on that basis, since a material question of fact existed as to whether the case was
covered, but nonetheless sustained the dismissal, finding that the school had not duty to Rice to
keep this information from DSS, and indeed, had a duty under its contract with DSS to report
on any incident involving Rice.  A.S.L.
In a brief opinion rejecting an inmate's contention that his sentence was harsh and excessive in
light of his HIV+ status, the N.Y. Appellate Division, 2nd Department, reiterated prior rulings
that HIV infection, "standing alone, does not warrant reduction of an otherwise appropriate
sentence."  People v. Salmons, 1994 WL 715304 (Dec. 27). A.S.L.

AIDS Law & Society Notes
Chicago Mayor Richard Daley issued an Executive Order on Dec. 1, expanding his
administration's non-discrimination policies with respect to HIV/AIDS, which were initially
established in a 1989 Order.  The new Order forbids requiring city employees or applicants to
take an HIV test or to divulge HIV status as a condition of employment, prohibits job transfers
requested by employees to avoid working with HIV+ people, and establishes a training program
on HIV issues for city employees.  BNA Daily Lab. Rep. No. 235, A-15 (12/9/94). A.S.L.

PUBLICATIONS NOTED & ANNOUNCEMENTS
ANNOUNCEMENTS
Lambda Legal Defense Fund is adding two staff attorney positions in its New York City office,
and will accept applications until January 30, 1995, for these positions.  Both of the staff
attorneys will work on a broad range of lesbian/gay/bisexual and HIV-related legal issues.  The
positions involve litigation, brief-writing, public speaking, counseling, etc.  Salary will be in the
$40-50,000 range depending on experience, and at least 5 years practice is specified as a
prerequisite.  Resumes and writing samples should be sent to Beatrice Dohrn, Legal Director,
Lambda Legal Defense Fund, 666 Broadway, Suite 1200, New York NY 10012.  Lambda is
also accepting applications for an Administrative Assistant position in its legal department.  For
all positions, Lambda especially encourages people of color and people with disabilities to apply.
The National Center for Lesbian Rights is accepting applications for summer law clerk positions
in its San Francisco office.  Those interested in applying should contact Kate Kendall, Legal
Director, NCLR, 870 Market St., Suite 570, SF, CA 94102 (415-392-NCLR).  
The first issue of CTN Magazine, for deaf, hard-of-hearing and hearing-signing lesbians, gays
and bisexuals will be published in January.  This is supposed to be the first such magazine, and
will be available by subscription for $30.  For subscription information, write, e-mail or fax to:
CTN Magazine, PO Box 14431, San Francisco, CA 94114; email: CTN Mag@aol.com  fax:
415-626-9033.

LESBIAN & GAY & RELATED LEGAL ISSUES: 
Adelman, Lynn & Pamela Moorshead, Bad Laws Make Hard Cases: Hate Crime Laws and the
Supreme Court's Opinion in Wisconsin v. Mitchell, 30 Gonzaga L. Rev. 1 (1994/95).
Baldacci, Paris R., Pushing the Law to Encompass the Reality of Our Families: Protecting
Lesbian and Gay Families From Eviction From Their Homes -- Braschi's Functional Definition
of "Family" and Beyond, 21 Fordham Urban L.J. 973 (Summer 1994).
Beschle, Donald L., Defining the Scope of the Constitutional Right to Marry: More Than
Tradition, Less Than Unlimited Autonomy, 70 Notre Dame L. Rev. 39 (1994).
Cavanaugh, Maureen B., Towards a New Equal Protection: Two Kinds of Equality, 12 L. &
Inequality 381 (June 1994).
Chang, David, Beyond Uncompromising Positions: Hate Crimes Legislation and the Common
Ground Between Conservative Republicans and Gay Rights Advocates, 21 Fordham Urban L.J.
1097 (Summer 1994).
Eskridge, William N., Jr., and Philip P. Frickey, Forward: Law as Equilibrium, 108 Harv. L.
Rev. 26 (Nov. 1994) (includes discussion of gay rights cases).
Goldberg, Suzanne, Gay Rights Through the Looking Glass: Politics, Morality and the Trial of
Colorado's Amendment 2, 21 Fordham Urban L.J. 1057 (Summer 1994).
Grainer, Virginia, Is Family Protection a Question of Moral Duty?, 24 Victoria Univ. of
Wellington L. Rev. 141 (July 1994) (New Zealand law journal).
Keller, Christopher J., Divining the Priest: A Case Comment on Baehr v. Lewin, 12 L. &
Inequality 483 (June 1994) (Hawaii same-sex marriage case).
Leonard, Arthur S., Lesbian and Gay Families and the Law: A Progress Report, 21 Fordham
Urban L.J. 927 (Summer 1994).
McDonald, Elisabeth, Gender Bias and the Law of Evidence: The Link Between Sexuality and
Credibility, 24 Victoria Univ. of Wellington L. Rev. 175 (July 1994) (New Zealand law
journal).
Norrie, Kenneth McK., Reproductive Technology, Transsexualism and Homosexuality: New
Problems for International Private Law, 43 Int'l & Comp. L. Q. 757 (Oct. 1994).
Weinstein, James, Hate Crime and Punishment: A Comment on Wisconsin v. Mitchell, 73 Ore.
L. Rev. 345 (Summer 1994).
Williams, Jim, Looking to Eliminate Need to Hide Sexual Orientation, NYLJ, 10/31/94,
Corporate Counsel Supplement, p. S7 (LeGaL's president comments on the situation facing
lesbian and gay persons in the workplace).
Wolfson, Evan & Robert S. Mower, When the Police Are in Our Bedrooms, Shouldn't the
Courts Go In After Them?: An Update on the Fight Against "Sodomy" Laws, 21 Fordham
Urban L.J. 997 (Summer 1994).
Student Notes & Comments: 

Aamot-Snapp, Kari, Putting Teeth Into Minnesota's Employment Discrimination Law: A
Legislative Proposal Defining Gender Stereotyping, 79 Minn. L. Rev. 211 (Nov. 1994).
Coghill, Tracy L., Wisconsin v. Mitchell: The Debate Between Hate Crime Statutes and
Freedom of Speech Continues, 45 Mercer L. Rev. 1475 (Summer 1994).
Frost, Gary, Steffan v. Aspin: Gays in the Military Win a Victory -- Or Did They?, 30 Tulsa
L.J. 171 (Fall 1994).
Johnson, Kristi J., Chiapuzio v. BLT Operating Corporation: What Does it Mean to Be Harassed
"Because of" Your Sex?: Sexual Stereotyping and the "Bisexual" Harasser Revisited, 79 Iowa
L. Rev. 731 (March 1994).
Laurence, Jeffrey M., Minnesota Burning: R.A.V. v. City of St. Paul and First Amendment
Precedent, 21 Hastings Const. L. Q. 1117 (Summer 1994).
Lepore, Matt, Department of Health and Rehabilitative Services v. Cox: Is Florida's Statute in
the Child's Best Interest?, 45 Mercer L. Rev. 1415 (Summer 1994) (state ban on gays adopting
children).
Neff, Steven S., Steffan v. Aspin: A Court's Unfortunate Reading of Reasonableness Out of the
Military's Sensible Ban on Homosexuals, 45 Mercer L. Rev. 1123 (Spring 1994).
Poff, Patrick J., Welsh v. Boy Scouts of America: Defining the Scope of a "Place of Public
Accommodation" Under Title II of the Civil Rights Act of 1964, 45 Mercer L. Rev. 1137
(Spring 1994).
Sage, Candace L., Sister-State Recognition of Valid Same-Sex Marriages -- Baehr v. Lewin --
How Will It Play in Peoria?, 28 Indiana L. Rev. 115 (1994).
Salzman, Anne, On the Offensive: Protecting Visual Art with Sexual Content Under the First
Amendment and the "Less Valuable Speech" Label, 55 U. Pitt. L. Rev. 1215 (Summer 1994).
Smith, David Todd, Enhanced Punishment Under the Texas Hate Crimes Act: Politics, Panacea,
or Pathway to Hell?, 26 St. Mary's L. J. 259 (1994).
Tuchman, Claudia, Does Privacy Have Four Walls? Salvaging Stanley v. Georgia, 94 Col. L.
Rev. 2267 (Nov. 1994).
Specially Noted:
In retirement tributes to Justice Harry Blackmun in the Nov. 1994 issue of Harvard Law
Review, several writers specially note his dissent in Bowers v. Hardwick, the Georgia sodomy
case.  In describing Blackmun's dissent, retired Justice William J. Brennan, Jr., writes: "I was
proud to join Justice Blackmun's opinion then, and I am proud to praise it anew.  Some have
suggested, unpersuasively, I believe, that it is overly expansive to read a solicitude for human
dignity and respect into the Constitution.  But Justice Blackmun is convincing; protection of the
breathing space necessary for self-definition is `central to any concept of ordered liberty.'" (108
Harv. L. Rev. at 3).
Symposia:
Articles noted above in 21 Fordham Urban L.J. No. 4 (Summer 1994) were prepared in
connection with a two-day conference on lesbian and gay legal issues held at Fordham Law
School February 26 & 27, 1994, under the co-sponsorship of the Journal, the school's lesbian
and gay student organization, and the Lesbian and Gay Law Association of Greater New York.
* * * Vol. 65, No. 4 of the University of Colorado Law Review features a symposium on
"Constitutional Law: Guaranteeing a Republican Form of Government," which contains
extensive discussion of the theoretical problems with initiatives and referenda, but manages to
avoid any substantial consideration of the Colorado Amendment 2 litigation! * * * Vol. 67, No.
3 of the Temple Law Review features a symposium on "Emerging Issues in State Constitutional
Law." * * * Vol. 94, No. 6 of the Columbia Law Review features a symposium on John Rawls'
new book, Political Liberalism.

AIDS & RELATED LEGAL ISSUES: 
McEvoy, Sharlene A., When You Have No Right to Remain Silent: Tort Liability for
Sexually-Transmitted Diseases, 2 Tort L. Rev. 175 (Nov. 1994).
McGovern, Theresa M., S.P. v. Sullivan: The Effort to Broaden the Social Security
Administration's Definition of AIDS, 21 Fordham Urban L.J. 1083 (Summer 1994).
Rothstein, Laura F., College Students with Disabilities: Litigation Trends, 13 Rev. of Lit. 425
(Summer 1994).
Zavos, Michele A., Federal ADA Protections for People With HIV, 30 Trial No. 12, 58 (Dec.
1994).
Editor's Notes:
All points of view expressed in Lesbian/Gay Law Notes are those of identified writers, and are
not official positions of the Lesbian and Gay Law Association of Greater New York.  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. * * *
Correction: In our report of Thomas S. v. Robin Y. last month, we indicated that Emily
Olshansky represented Thomas S. at the trial level and he represented himself on appeal.  We
are informed that Ms. Olshansky continued to represent Thomas S. on appeal, although he
presented the oral argument to the Appellate Division. A.S.L.