LESBIAN/GAY LAW NOTES
February 1995
ISSN 8755 9021
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)           
February 1995

D.C. COURT OF APPEALS REJECTS GAY MARRIAGE APPEAL

A 3-judge panel of the District of Columbia Court of Appeals, the
District's highest appellate court, ruled Jan. 19 in Dean & Gill
v. District of Columbia, 1995 WL 21117, that Superior Court Judge
Shellie F. Bowers correctly dismissed a challenge to the refusal
of the District's Marriage License Bureau to grant a marriage
license to a same-sex couple, Craig Dean and Patrick Gill.  The
court described its ruling as a per curiam affirmance pursuant to
those parts of Judge John Ferren's decision with which all three
judges agreed as well as the concurring opinions of Judges John
Terry and John Steadman, each of whom concurred with the other. 
Ferren sharply disputed the rationales stated in the opinions of
his colleagues for disagreeing with his dissenting portions.

The panel unanimously rejected the theories on which the case was
originally brought: that the District's marriage law, couched in
gender-neutral terms, could be construed to authorize same-sex
marriage, or that the District's various anti-discrimination
enactments could be construed to compel the Bureau to issue the
license.  In brief, they agreed that despite the use of gender
neutral terms, it would be hard to argue credibly that either
Congress (the author of early District marriage laws) or the
District Council, which assumed legislative authority on this
issue in the 1970s as part of limited home rule, ever intended to
authorize same-sex marriage, and that similarly there is no
intention demonstrated in the legislative history of the D.C.
Human Rights Act to affect the interpretation or administration
of the District's marriage laws.  A same-sex marriage bill was
introduced in the Council at around the time that the Human
Rights Act was being considered, so the subject was in the air
and the court suggests that if anyone thought that passing the
Human Rights Act would require same-sex marriages, certainly
there would have been discussion to that effect in the
legislative record.

The judges were also unanimous in agreeing (in concurrence with
the Hawaii Supreme Court in Baehr v. Lewin, 852 P.2d 44 (Hi.
1993)), that the due process clause does not protect a
fundamental right for same-sex couples to marry.  Those
interested in the analysis are referred to the Baehr decision,
which is cited by Ferren on this point.  However, Ferren parted
company from his colleagues and voted, in partial dissent, to
reverse and remand the case for a trial on the appellants' equal
protection claim.  However, Ferren ignored the rationale of
Baehr, under which the same-sex marriage exclusion would be
tested by heightened scrutiny as a form of sex discrimination,
and instead couched his dissent in terms of the need for a fuller
trial record in order to decide whether sexual orientation
constitutes a suspect or quasi-suspect classification, and
whether the District could meet the burden in a heightened or
strict scrutiny case of showing important or compelling interests
in denying same-sex couples access to legal marriage.  Ferren's
colleagues also totally avoided discussion of Baehr's approach to
the equal protection issue.

The lengthy gestation time for this decision (the case was argued
and submitted on Nov. 2, 1993) shows in Ferren's extremely long,
scholarly opinion (more than 100 pages in the printed slip
opinion).  It would be impossible within the space limitations of
Law Notes to do justice to it.  Suffice to say that the most
interesting parts, in terms of adding something new to the
ongoing judicial analysis of the same-sex marriage issue, are
contained in his dissenting portions in Parts IV and VI, where he
deals exhaustively with analysis of the suspect classification
claims and the kind of evidentiary showing that might be required
were the court finally to conclude that heightened or strict
scrutiny is the correct standard of review.  Indeed, Ferren's
opinion should be of particular interest to the Hawaii litigants
as they prepare for trial on the question of compelling interest,
the Hawaii Supreme Court having already decided that strict
scrutiny is the standard to be applied under the Hawaii
constitution's express ban on sex discrimination.

Judge Ferren's contentions on this point will no doubt stimulate
a fair amount of wincing (and even outrage) from many gay rights
supporters, as he suggests that the state might meet the burden
of justification if it could show that preventing same-sex
couples from marrying could prevent children from becoming gay
(or perhaps bisexual? he's unclear on this point) by eliminating
the factor of married gay role models from among the potential
environmental influences that might play a role in the formation
of sexual orientation.  Ferren's discussion appears at times to
assume, at the least, that if a majority of the population
considers heterosexuality to be superior to homosexuality, or
believes that it would be better for society were all children to
grow up to be heterosexual, then the state might have a
sufficient justification for reinforcing that possibility through
such things as the marriage laws.  In other words, his argument
appears to incorporate the assumption that a gay person would be
less valuable to society than a heterosexual person.  He also
appears to buy into the essentialist argument that
genetics/biology may play a significant role in determining
sexual orientation, and contends that if this can be established
through competent expert testimony and record evidence, then
heightened or strict scrutiny might be justified.  His argument
for remand is that the record thus far lacks sufficient evidence
to make these determinations.

But this description may be doing some disservice to Ferren,
since many of these statements are couched as hypothetical
arguments, and discussed with some skepticism.  It is clear from
the overall context of his opinion that he is troubled by the
blatant discrimination against gay couples, that he rejects the
facile sort of equal protection analysis that has been embraced
by so many federal circuit courts (primarily in the military
cases and in their use of Hardwick as a rationale for rejecting
gay equal protection claims), and that he would be disposed to
rule in favor of requiring the District to recognize same-sex
marriages, provided that a trial hearing for determination of
legislative facts produced data confirming his reading of the
existing scientific literature on the nature of human sexuality.

Judges Terry and Steadman each articulated a separate rationale
for rejecting the appellants' equal protection claim.  Terry
harks back to earlier cases that rested their argument on the
traditional definitions of the understanding of marriage as a
heterosexual union, and contends it is enough to assert that what
Dean and Gill seek cannot, by definition, be a marriage. 
Steadman, responding to Ferren's equal protection analysis,
asserts that the D.C. marriage statute is not an instance of
intentional discrimination against gays.  When the District
passed its marriage law, he argues, it intended to create a
vehicle for the formation of traditional heterosexual marriages
and had no discriminatory intent, as such; thus, there is no
valid equal protection claim, since the equal protection
requirement extends only to intentional discrimination.  In
effect, by extending marriage only to opposite-sex couples, the
District has disparately impacted gays, which would not create an
equal protection problem under current precedents.  Ferren
directly responds to these arguments in a separate section of his
opinion.

Because the court did take on the constitutional arguments
(despite their absence from the initial pleadings in this case),
a petition for U.S. Supreme Court review might be possible.  It
was not known at presstime whether the plaintiffs would pursue
the matter further.  Professor William N. Eskridge, Jr., of
Georgetown University Law School argued the case for the
appellants, with plaintiff Craig Dean as co-counsel on the brief.

The trial in Baehr v. Lewin, the Hawaii marriage case, has been
postponed from April to September at the state's request,
ostensibly to give the legislature time to react to
recommendations from a special commission it established to
examine the issues of same-sex marriage and domestic partnership.
The commission's functioning has been dogged by problems about
its appointment process and membership. In an Internet posting,
the Hawaii Equal Rights Marriage Project announced that it
expected a circuit court ruling in 1995 and an appeal by the
loser to the Hawaii Supreme Court in 1996. A.S.L.

LESBIAN/GAY LEGAL NEWS 

Supreme Court to Consider St. Patrick's Day Parade Case

In a move that caught gay movement attorneys by surprise, the
U.S. Supreme Court granted certiorari to the South Boston Allied
War Veterans Council, seeking review of last year's decision by
the Massachusetts Supreme Judicial Court that required the
Council to let the Irish-American Gay, Lesbian and Bisexual Group
of Boston, known as GLIB, march as a group under its own banner
in the annual St. Patrick's Day parade.  See GLIB v. City of
Boston, 636 N.E.2d 1293 (Mass. 1994), cert. granted, 63 U.S.L.W.
3371 (Jan. 6, 1995).  As a result of the court order last year,
the official parade was not held, but an unofficial protest by
supporters of the Council took place.  After the Massachusetts
high court rejected their appeal, the Council filed both a
certiorari petition and a new action in the federal district
court in Boston, seeking to compel issuance of a parade permit
for the 1995 parade without GLIB's participation.  The new
federal court action presented an ingenious theory, inspired by
last year's unofficial protest march: the 1995 parade, unlike
prior parades, would have officially specified expressive
purposes, including a protest of the 1994 state court decision. 
On this basis, U.S. District Judge Mark Wolfe issued a lengthy
decision on Jan. 17, finding the proposed 1995 parade factually
distinguishable from the 1994 parade.  Concluding that he thus
was not bound by the 1994 ruling, and need not abstain from
deciding the case in deference to the U.S. Supreme Court, which
would be considering only the 1994 parade, Wolfe issued a new
order requiring the City of Boston to give the Council a permit
for a 1995 parade that could exclude GLIB at the Council's
option. South Boston Allied War Veterans Council v. City of
Boston, C.A. No. 94-11402-MLW.

Understanding the Boston litigation requires understanding the
unique history of that city's parade, which represents an
amalgamation of two distinct celebrations: St. Patrick's Day, and
Evacuation Day (the anniversary of the evacuation of British
troops from their occupation of Boston during the American
Revolution).  As a patriotic celebration, the parade was
originally a city-sponsored and organized event.  Over the years,
it was merged with the celebration of St. Patrick's Day, and its
administration turned over to the Council, a largely Irish-
American, non-governmental group.  The state courts found that
this combined parade was largely a celebratory entertainment
event, without any substantial political content, and that prior
to GLIB's attempts to participate in recent years, the organizers
had not, with rare, exceptions, excluded any group on the basis
of its identity or the content of its message.  On that basis,
and predicated on the determination that the parade was a "public
accommodation" within the meaning of both Massachusetts and
Boston non-discrimination laws that cover "sexual orientation,"
the state courts decided that the Council's first amendment
expressive rights were not unconstitutionally abridged by
requiring it to allow GLIB to participate.

The certiorari petition challenges the Massachusetts' courts
conclusion that the contemplated 1994 parade was a public
accommodation and that it lacked the expressive content necessary
to raise first amendment concerns.  For Judge Wolfe, considering
the petition for a 1995 parade permit, the issue was whether the
addition of a protest element to the 1995 parade sufficiently
distinguished it, and raised sufficient first amendment issues to
compel a different result.  He concluded that this new element
presented a new case, and that requiring the Council to include
GLIB in the 1995 parade would seriously distort the protest
message of what now seemed clearly to be a political event
operated by a private organization in the context of a public
forum (the streets of South Boston).

There is a possibility that the Supreme Court might dismiss the
case before hearing argument if persuaded that the 1995
developments make the case based on the 1994 parade moot (and
GLIB's attorneys were expected to file a motion to that effect
with the Court).  Plenary consideration could present significant
dangers for the future enforcement of anti-discrimination laws,
particularly those barring sexual orientation discrimination,
depending on the precision with which the Court might discuss
whatever accommodation it would deem necessary between the
conflicting rights involved, and particularly whether "gay rights
laws" adopted by state or local legislatures may serve as the
"compelling state interests" that the Court has recognized in the
context of other kinds of employment (e.g., sex discrimination
laws in the context of exclusionary membership policies by
organizations such as the Jaycees or Kiwanis).  Gay & Lesbian
Advocates & Defenders (Boston) represents GLIB in the litigation. 
A.S.L.

Steffan Drops Military Appeal; 2nd Circuit Orders Speedy Judicial
Review of New Policy

On Jan. 3, Joseph Steffan announced he would not seek Supreme
Court review of the en banc decision by the U.S. Court of
Appeals, D.C. Circuit, that rejected his challenge to his forced
resignation from the Naval Academy in 1987.  Steffan v. Perry,
1994 WL 652249, 63 USLW 2337 (D.C.Cir. Nov. 22).  On the same
day, the U.S. Court of Appeals for the 2nd Circuit issued a per
curiam ruling on the government's appeal of preliminary
injunctions that barred further processing for discharge of
several of the plaintiffs in Able v. United States, a challenge
to the anti-gay policies enacted by Congress in 1993 in response
to President Clinton's attempt to end the ban on military service
by openly lesbian and gay persons.  Accepting the government's
argument that District Judge Eugene Nickerson (E.D.N.Y.) used the
wrong standard to determine whether to issue the preliminary
injunction, the court continued the injunction through March 31
and ordered Nickerson to hold a trial on the merits of the case
by then.  The two Jan. 3 events, taken together, suggest that the
Supreme Court will receive the "gays in the military" issue, as
embodied in the 1993 policy, much sooner than expected, but that
it is unlikely to consider any further cases arising under the
pre-Clinton policy.

Steffan's case appeared to be one of those most likely to make it
to the Supreme Court when it was filed on his behalf by Lambda
Legal Defense & Education Fund during the Bush Administration. 
Steffan was an honor student at the Naval Academy who responded
truthfully to rumors about his sexual orientation during his
final semester.  Weeks short of graduation he was counseled to
resign rather than be discharged.  He later unsuccessfully sought
to revoke the resignation, and then filed suit, losing at the
district court, winning an initial victory before a 3-judge panel
of the D.C. Circuit, but then loosing the en banc review.  The
full circuit held (3 judges dissenting) that the pre-Clinton
policy passes the rational basis test when one has as one's
predicate the validity of the military ban on homosexual conduct,
which the Circuit deems beyond question due to the Supreme
Court's 1986 decision in Bowers v. Hardwick finding Georgia's
sodomy law constitutional as applied to "homosexual sodomy." 
Steffan dropped the appeal because events have outrun the
relevance of his case; although differences between the pre-
Clinton policy and the 1993 policy are so subtle that they may
make little practical difference to lesbian and gay service
members and service academy students, there is enough technical
difference so that a Supreme Court ruling on the old policy might
not be dispositive on the new policy.  Indeed, this is implicitly
the position of the government, which decided not to appeal the
9th Circuit's decision in Meinhold v. U.S. Dept. of Defense, 34
F.3d 1469 (Aug. 31), on the ground that the order in that case
reinstating Keith Meinhold did not expressly question the
validity of the 1993 policy.  (Steffan, by the way, decided to go
to law school.  While a law student, he precipitated litigation
leading to barring of military recruitment at his law school's
placement office!  He recently became a member of the Connecticut
bar, and is clerking for a federal district judge.)

In Able v. United States, 1995 WL 4928 (Jan. 3), a 2nd Circuit
panel confronted the government's argument that Judge Nickerson
erred by granting a preliminary injunction barring the Defense
Department from attempting to discharge three of the plaintiffs
on grounds of homosexuality while the case was pending. 
Nickerson relied on a 1991 decision, Resolution Trust Corp. v.
Elman, 949 F.2d 624 (2nd Cir.), for the proposition that such
interim relief could be ordered if the plaintiffs had raised
"sufficiently serious questions going to the merits" with "the
balance of hardships tipping decidedly toward the party seeking
injunctive relief."  The per curiam appeals panel held that
Nickerson misapplied Resolution Trust, and that the more
traditional requirement that the plaintiffs show "a likelihood of
success on the merits" was the proper test where the government's
challenged action was intended to effectuate a formally
legislated policy.  "Rather than applying the `likelihood of
success' standard ourselves, however, we believe that the wiser
course is to remand to allow the district court to make the
determination in the first instance," stated the court.  "We
believe that given the circumstances of this case the preliminary
injunction should remain in place pending resolution of the issue
of the likelihood of success on remand lest plaintiffs lose
altogether the opportunity to litigate their facial
constitutional challenges in the present posture of the case. . . 
However, the injunctions should not remain in place for an
extended period with the case in its present posture since no
`likelihood of success' finding has been made."  The court's
solution to this problem was to order Nickerson to consolidate
the issues into one trial; "the district court could decide the
merits of plaintiffs' claims within a relatively short period of
time.  While we have noted that there are some factual issues
remaining to be explored, we also note that the factual record in
this case, in which legal issues predominate, is largely
complete.  In addition, we think that the important questions
raised in this case should not be left unanswered by the courts
any longer than necessary.  We will therefore condition the
temporary maintenance of the injunction upon the occurrence of a
trial on the merits within three months." 
In a status conference on Jan. 13, Nickerson ordered the parties
to move forward quickly with pre-trial discovery and indicated he
wanted to hold the trial on March 15, to give him a few weeks to
review the record and make his decision on the merits by the
deadline for expiration of the preliminary injunction.  The Able
case is a joint project of the ACLU Lesbian and Gay Rights
Project and Lambda Legal Defense and Education Fund, with
cooperating attorneys Michael Lacovara, David Braff and Penny
Shane, all of Sullivan & Cromwell.  

U.S. District Judge Coar rejected a strange sort of sideways
assault on the current military policy in Homberg v. Dept. of
Defense, 1995 WL 9240 (N.D.Ill., Jan. 9).  Former Technical
Sergeant Sherill Homberg claims she was sexually harassed by her
Master Sergeant, Roxanne Ericksen, and then discriminatorily
discharged for rejecting Ericksen's advances, but that
investigation of her claim was stymied by the military regs,
which forced Sergeant Ericksen to lie about her sexual
orientation.  She sought an order from the district court
blocking enforcement of the military policy as a way of
facilitating investigation of her complaint.  Judge Coar
determined that the military policy was irrelevant to whether
Ericksen would have an incentive to deny being a lesbian, since
any admissions she might make along that line would subject her
to potential discipline for engaging in sexual harassment.  Thus,
concluded Coar, Homberg was not directly injured by the policy
and had no standing to seek an injunction against its operation.
A.S.L.

Supreme Court Rejects After-Acquired Evidence Defence in
Employment Discrimination Cases

In McKennon v. Nashville Banner Publishing Co., 1995 WL 20463
(Jan. 23), the U.S. Supreme Court halted a trend in the lower
federal courts that was blocking employment discrimination
plaintiffs from any relief under Title VII or the Age
Discrimination in Employment Act if the employer could show that
evidence uncovered after an employee was discharged would
absolutely bar the employee from obtaining any relief under
discrimination law.  In his opinion for the unanimous Court,
Justice Anthony Kennedy asserted that federal anti-discrimination
laws focused on the employer's motivation for discharging the
employee; if evidence was discovered after a discharge occurred,
it could not possibly be relevant to the employer's motivation
for the discharge.  Thus the equitable doctrine that a person
with unclean hands may not recover is inapplicable, even though
the discrimination law remedial scheme is essentially equitable
in nature.  However, the Court held that the after-acquired
evidence could well be relevant to the issue of remedies; if this
evidence would independently justify a discharge, then
reinstatement or "front-pay" would be inappropriate remedies, but
the Court held that the discharged employee would still be
entitled to back-pay from the time of discharge to the time the
evidence was discovered if the employee proved that the discharge
violated the discrimination laws.  Although federal
discrimination law does not cover "sexual orientation," most
state courts look to federal interpretations of Title VII and
ADEA in construing state and local discrimination laws, so the
decision may carry significant weight as persuasive precedent in
construing sexual orientation discrimination laws on the state
and local levels.  A.S.L.

Illinois Appellate Court Takes Kids From Lesbian Mom

In a stunning decision, the Appellate Court of Illinois, 2nd
District, reversed the trial court and denied custody to a
lesbian mother, finding, among other things, that the mother's
"lifestyle had adversely affected the children."  Martins v.
Martins, 1995 WL 7711 (Jan. 10).  Alice Martins and Edward
Martins were divorced in May 1990, and had two daughters during
their 9-1/2 years of marriage.  At the time of the divorce both
parents were awarded joint custody of Danielle, age 3-1/2, and
Courtney, age 2.  Over a year later, Alice Martins filed a
petition for physical custody and, after a hearing in August
1991, was awarded physical custody of the children during the
week while Edward Martins was awarded physical custody on the
weekends.

Shortly after the initial custody hearing, Alice Martins told
Edward Martins that she was a lesbian.  Edward Martins then put
the children into counselling and filed a petition to modify the
custody arrangements, arguing that the well-being of the children
was endangered because of their mother's conduct, which included
engaging in "conjugal, homosexual relationships with persons
residing in the same home as the minor children."  Following a
second custody hearing, the trial judge denied the father's
petition for sole custody and permitted the children to remain in
the custody of their mother during the week and with their father
on the weekends.

The Appellate Court reversed the trial judge, finding that a
"mother's homosexual relationship is a proper factor to be
considered in determining custody," and further, that the trial
court erred in determining that Alice Martins' "lesbian
lifestyle" had not adversely affected the two daughters. The
Appellate Court argued that since Martins "admitted her
lesbianism, she had not spent as much time with or rendered the
same care to the minor children that she had prior to the
pronouncement of her gay life-style."  The court also found that
the "numerous female roommates, gay and non-gay. . . did not
serve to create a stable home environment."  The court also found
that the mental health of the children was an issue since one
child "displayed various instances of behavioral problems which
arose only after the petitioner pronounced her lesbianism to the
children."  The Appellate Court directed that residential custody
be awarded to the father.  M.B.

D.C. Court of Appeals Rejects Gay Reverse Discrimination Claim

In Howard University v. Green, 1994 WL 713355 (Dec. 22), the
District of Columbia Court of Appeals granted Howard University's
motion for judgment notwithstanding the verdict (JNOV) of the
plaintiff's complaint that she was laid off from her nursing
position because she complained of sexual orientation
discrimination in favor of lesbian nurses.  Reversing the trial
court, the panel held, in an opinion by Judge King, that Green
had not made out a prima facie case under the District's Human
Rights Act (DCHRA).  

Green, former Associate Director of Nursing at Howard University
Hospital, claimed she had been included in a reduction-in-force
(RIF) in retaliation for complaining of alleged sexual
orientation discrimination in the Division of Nursing.  She
claimed that her immediate supervisor, the Director of Nursing
and organizer of the RIF, maintained homosexual relationships
with another Associate Director and a Patient Coordinator, a
subordinate of Green's.  Neither of these women were included in
the RIF; Green believed she was included because she complained
of these relationships.  Green further alleged that throughout
her 20 years with the Hospital, the Director frequently showed
partiality to both the Associate Director and the Coordinator. 
Green suggested that this favoritism undermined her authority,
contradicted Hospital policy, and adversely affected department
morale, but she never explicitly linked these complaints to the
alleged homosexual activity or directly complained of sexual
orientation discrimination.  Nevertheless, she maintained that
the Director linked her complaints with complaints of sexual
orientation discrimination.

The trial court permitted Green to present testimony concerning
rumors of homosexuality among the women, and a taped conversation
between Green and the Director during which Green said that the
"grapevine" had not been kind to the Director.  These were
introduced to establish that when Green complained, she was
actually protesting preferential treatment of homosexuals.  The
trial court also permitted Green to show that she believed the
favoritism was based on homosexual preferences by admitting
evidence of sexual orientation neutral-facts such as social
activities the women engaged in together.  She was also allowed
to present personal facts about the women, such as their marital
status, mode of dress, and the length of friendship among them;
and homosexual stereotypes such as the belief that homosexuals
can be identified by their appearance.  The Director
unequivocally testified she was not homosexual and had never
engaged in homosexual relationships with any women, but the jury
returned a verdict in favor of Green, awarding $140,000 damages. 
The trial court denied Howard's motion for JNOV, holding that
Green made out a prima facie case of retaliation.  It also stated
that the admission of rumors of homosexuality was not overly
prejudicial.

The court of appeals viewed the dispositive issue to be whether
evidence of mere rumors, and a taped conversation vaguely
referencing such rumors, provided sufficient basis to conclude
that otherwise work-related complaints rose to a level of
activity protected by the Act.  It is unlawful for an employer to
retaliate on account of a person's opposition to any practice
made unlawful by the Act.  Three things must be shown to
establish a prima facie case of retaliation:  "The plaintiff was
engaged in a protected activity or opposed activities made
unlawful by the DCHRA; the employer took an adverse personnel
action against her; and a causal connection existed between the
two."  The court found Green failed to establish the first
element.  While it is unlawful to deprive an individual of equal
opportunities because of his or her sexual orientation,
employment practices like cronyism and favoritism are not
actionable.  Further, the court noted that to establish a case of
retaliation, Green would have to show that she opposed or
complained of activity which she reasonably believed was sexual
orientation discrimination, and that she so informed the
employer.  However, Green never complained to anyone about sexual
orientation discrimination until she filed her suit.  

Communication of a complaint of unlawful discrimination may be
inferred from surrounding circumstances, even absent the use of
the actual word "discrimination," but the court found that the
trial court erred in ruling that the circumstances surrounding
Green created a sufficient basis for an impartial jury to find
that Green undertook protected activity.  The trial court relied
heavily on a taped conversation between Green and the Director
during which Green complained she was tired of the rumors of "the
Director this, and the Coordinator that."  It disagreed with the
trial court that an impartial jury could take this "vague and
ambiguous" conversation and find that it was Green voicing her
opposition to sexual orientation discrimination.  Further,
nothing in the record suggested that the Director was alerted
that Green was complaining about sexual orientation
discrimination, thus Howard University, as Green's employer, had
no knowledge of the complaint.  The court found that the alleged
milieu of homosexual innuendo and outmoded stereotypes which the
trial court found so probative and persuasive did not elevate
Green's work-related complaints to the level of protected
opposition activity.

The court concluded:  "Retaliation provisions such as the one in
the DCHRA are designed to protect those who speak out against
unlawful discriminatory activity.  To extend protection to
potential plaintiffs like Green, who have done nothing more than
complain about workplace favoritism, would expand the boundaries
of the statute beyond what was intended. . . .  To foster the
underlying goal of human rights statutes - an end to
discrimination - the burden is squarely on the employee to
adequately voice her opposition so that management is made aware
of the alleged discrimination, and so that it can take
appropriate steps to eliminate the offensive conduct.  If the
employer, once aware of the discrimination, chooses to retaliate
against the employee for opposing the conduct, the employee can
then seek redress under the DCHRA." P.T.

N.Y. Court of Appeals Reverses "Dating" Case

In a remarkably slim opinion for the issue it addresses, the N.Y.
Appellate Division, 3rd Dept., ruled that "dating" is not a
recreational activity within Labor Law provisions barring adverse
employment action against persons because of their lawful non-
work activities.  New York v. Wal-Mart Stores, Inc., 1995 WL 3187
(Jan. 5).  In reversing the Fulton County Supreme Court and
dismissing the case, Justice Mercure wrote for a three-judge
majority, with one justice dissenting.

In February 1993, Wal-Mart dismissed two of its employees for
violating its "fraternization" policy, codified in the employee
handbook, which prohibits a "dating relationship" between a
married employee and another employee, other than his or her own
spouse.  The State sought reinstatement of the employees with
back pay, on the ground that their discharge violated Labor Law 
201-d(2)(c), which forbids employer discrimination against
employees because of their participation in "legal recreational
activities" pursued outside of work hours.  Supreme Court denied
the defendant's motion to dismiss, concluding that "dating" while
one is married may well be "recreational activity" within the
meaning of the Labor Law.  It granted the motion to dismiss with
regard to a second cause of action predicated on Executive Law
63(12), which prohibits repeated or persistent illegality in the
transaction of business.

The Appellate Division stated that it was not at all persuaded by
Supreme Court's effort to "force" a dating relationship within
the definition of a legal "recreational activity," and therefore
reversed the lower court on that basis.  It observed that the
Labor Law defines "recreational activities" as meaning:  "any
lawful, leisure-time activity, for which the employee receives no
compensation and which is generally engaged in for recreational
purposes, including but not limited to sports, games, hobbies,
exercise, reading and the viewing of television, movies and
similar material."  It then expressed its view that there is no
justification for proceeding beyond the fundamental rule of
construction that where the statute is unambiguous, "resort may
not be had to other means of interpretation."  Reading the
statute narrowly, the Appellate Division employed a two-pronged
attack on the plaintiff's argument and the lower court opinion. 
It first opined that "dating is entirely distinct from and, in
fact, bears little resemblance to recreational activity."  In a
series of rather startling statements, the court offered its
observation that an indispensable element of "dating" is
"romance," either pursued or realized.  It then constructed the
scenario of a dating couple going bowling, and observed that
while that pair may call that activity a date, when two people
lacking any amorous interest in each other go bowling, they are
not dating.

Having determined the requisite level of "romance" necessary for
a "date," the court then turned to legal analysis more grounded
in statutory interpretation.  It found that not only was the
statute unambiguous, but also that it was obviously the
legislature's intent to limit the statutory protection to certain
clearly defined categories of leisure-time activities.  As the
legislature listed a number of specific activities, the court
stated that it was compelled to conclude that personal
relationships fall outside the scope of the legislative intent.

The court finally determined that there was not a realistic
danger that its construction would permit employers to infringe
upon the right of employees to engage in protected off-hours
pursuits by wrongly characterizing dispassionate recreational
activity as dating.  It found that the burden would actually be
on the employer to establish not only joint activity of a
recreational nature, but the employees' mutual romantic interest
as well.  Thus, as the court put it, the construction does not
diminish the statutory protection afforded social relationships
between unmarried employees or married employees having no
romantic interest or involvement with each other.

Justice Yesawich dissented.  He read the Wal-Mart policy to
prohibit other types of social interaction as well.  He further
disagreed with the majority, finding that "dating," with or
without romantic attachment, falls inside the general definition
of "recreational activities."  Finally, he turned to the
Legislature's primary intent in enacting the statute: to curtail
employers' ability to discriminate on the basis of activities
that are pursued outside of work hours, and that have no bearing
on one's ability to perform one's job.  He stated that this was
to guarantee employees a certain degree of freedom to conduct
their lives as they please during nonworking hours.  He opined
that the statute, and the term "recreational activities," should
be construed as broadly as the definitional language allows, to
effect its remedial purpose. P.T.

Missouri Court of Appeals Refuses To Deny Visitation To Cross-
Dressing Father

Maintaining that incidents of her ex-husband's cross-dressing
constituted a "substantial change of circumstances(170>, a
Missouri woman filed a petition to modify a custody decree
awarding joint legal custody to both parents, primary physical
custody to the mother, and visitation rights to the father. 
Although the mother had been aware of the cross-dressing when the
marriage dissolved, she claimed that this knowledge was not
presented because her former attorney advised her that it was
unnecessary to do so.  In P.L.W. v. T.R.W., 1994 WL 723743 (Mo.
Ct. Apls., So. Dist., Dec. 30), she asserted that the father's
visitation rights should be denied or restricted to avoid
embarrassment to the child.  Under Missouri law, a custody decree
can be modified only when it serves the child's best interests. 
Further, a parent's visitation rights may not be restricted
unless the child's physical or emotional health is endangered. 
The trial court denied the petition because the mother had known
of the incidents and no evidence existed showing that the child
would be endangered by the visitation. 

On appeal, the mother argued that because the father's behavior
was a form of homosexuality, Missouri does not require a showing
of adverse effects.  Petitioner relied upon several cases
restricting the visitation rights of gay parents where
"homosexual behavior occurred in the presence of the child . . .
or there was a direct, demonstrable effect on the child's
welfare."  In a per curiam opinion, the court concluded that the
evidence showed that the father was attentive and caring during
his visits.  Additionally, because there was no evidence that the
father's behavior had continued after the divorce or that the
incidents had ever occurred in the child's presence, the Missouri
Court of Appeals affirmed denial of the mother's petition. 
C.B.R.

Alaska Court Upholds Domestic Partnership Claim

Alaska Superior Court Judge Mary E. Greene ruled Jan. 11 that the
University of Alaska may have violated a state law barring
marital status discrimination in employment, as well as its own
policy barring such discrimination, when it refused to allow two
employees to sign up their same-sex domestic partners for health
insurance benefits under an employee benefits plan that covers
spouses of employees.  Tumeo and Wattum v. University of Alaska,
No. 4FA-94-43 Civil (Super.Ct., 4th Jud. Dist.).  Mark Tumeo and
Kate Wattum each filed grievances after their attempts to gain
coverage for their domestic partners were denied.  The
University's Grievance Council decided that the lack of same-sex
marriage in Alaska required rejection of their claim, and so
recommended; pursuant to the recommendation, University President
Jerome Komisar dismissed the grievances.  The employees appealed
to the Superior Court, which apparently functions in an appellate
court capacity in such cases.  

Judge Greene found that "the University would provide health care
coverage to these couples if they were married and is refusing to
provide health care coverage only because they are not married. .
. The University, by providing added health care coverage for
married employees but not for unmarried employees, is
compensating married employees to a greater extent than it
compensates unmarried employees.  As a result, the definition of
`dependents' in the University's health care plan plainly results
in discrimination on the basis of marital status." Greene found
fault with the Grievance Council's logic: "Apparently, the
Grievance Council thought that to prove marital status
discrimination, a person was required to show that he or she was
denied benefits available only to employees who are of the same
marital status.  Instead, marital status discrimination may be
proved by a showing that a person was denied benefits available
only to employees who are of a different marital status.  That
is, a single person may show that he or she is being denied
benefits only available to married persons.  Such a showing has
been made here.  Whether Tumeo and Anders or Wattum and McClendon
are able to obtain a marriage license in Alaska is irrelevant to
this court's holding.  Discrimination against unmarried couples,
even when they are of the same sex, constitutes discrimination
based on marital status."

Responding to the University's argument that it need only provide
benefits to couples who bore the legal obligation of mutual
support, Greene characterized the argument as "tautological," and
even cast doubt on whether the Alaska Supreme Court would
necessarily reject a challenge to the denial of marriage licenses
to same-sex couples, commenting: "The Alaska Supreme Court has
not been asked to decide whether Alaska's marriage statute allows
for same-sex marriages. . . . The University has provided no
legal argument that such marriages are prohibited."  The
University made this argument to support its contention that
domestic partners are not "similarly situated" to married couples
due to legal support obligations of marriage.  Greene's opinion
seemed to hold that the issue of being similarly situated was a
factual question to be determined in the individual case,
pointing to an affidavit filed by Tumeo and his partner swearing
an obligation of mutual support.

The court also rejected the University's attempt to rely on the
decision in Phillips v. Wisconsin Personnel Commission, 482
N.W.2d 121 (Wis. App. 1992), noting that in Wisconsin there was a
statutory definition of "spouse" for purposes of public sector
employee benefits, thus creating a different interpretive problem
for the Wisconsin courts than that raised in this Alaska case.

After cataloging a variety of options the University could follow
in responding to this opinion, from cutting out dependents
benefits altogether to treating domestic partners on the same
footing as married employees, Greene remanded the case to the
University for "further proceedings consistent with this
opinion."  The University promptly filed a motion to reconsider,
asserting that it had additional arguments to make. Meanwhile,
the plaintiffs filed a motion to have the suit declared a "public
interest" suit, which would qualify it for an attorneys fee award
to the prevailing plaintiffs. A.S.L.

IRS Rules Health Fund Can Cover Domestic Partners and Keep
Tax-Exempt Status

A Private Letter Ruling CP:E:EO:T:4 from the Internal Revenue
Service's Exempt Organizations Chief, Gerald Sack, held that an
employee benefits fund can retain its tax-exempt status while
providing benefits to the domestic partners ("DPs") of fund
beneficiaries, even when the DPs do not qualify as dependents
under the Tax Code, provided that the benefits paid to
non-dependent DPs remain a de minimis percentage of total fund
benefits.

Pursuant to a collective bargaining agreement between
participating employers and employees, the fund that requested
this ruling provides benefits through a policy administered by a
large insurance company.  The trustees of the fund proposed to
extend health coverage to employees' DPs.  "In general, a DP will
be an unmarried adult of the same sex as the employee who (i)
resides with the employee and intends to do so indefinitely, (ii)
is not related to the employee by blood closer than the law would
permit by marriage, and (iii) shares joint responsibility with
the employee for their financial obligations, common welfare and
basic living expenses."  The insurance company and an actuarial
consulting firm projected that covering DPs would constitute less
than 3.4% of the total cost of benefits under the policy.

The Tax Code states that exempt funds must pay benefits to
members, their dependents, or their designated beneficiaries. 
The Code defines dependents generally as a spouse, children,
and/or individuals who reside with the taxpayer and depend on the
taxpayer for at least half of their support.  The law prohibits
tax exemption to organizations that knowingly and systematically
provide more than a de minimis amount of impermissible benefits. 
Sack reasoned that the DPs as proposed would not qualify as
dependents under the law, but that the projected DP benefits
would represent a de minimis portion of the total policy.  As a
result, the IRS ruled that the fund could adopt the proposal
without losing its tax exemption, "so long as the provision of
such benefits remains a de minimis amount of total benefits."

Given the significance of the ratio of DP benefits to total
benefits, it may be prudent for funds adopting similar proposals
to encourage members to classify dependent DPs as dependents,
rather than DPs, when such a classification would be defensible
under IRS regulations.  Prudent classification will reduce the
amount of "impermissible" benefits, and increase the amount of
permissible benefits, thus improving the likelihood that
"impermissible" benefits will remain a de minimis percentage of
the total.  O.R.D.

Relying on this IRS letter, the Writers Guild-Industry Health
Fund has become the first national multi-employer health plan in
the U.S. to extend spousal benefits, including health and dental
coverage, to members' same-sex domestic partners, according to an
Internet posting by Hollywood Supports.  The benefit, announced
to Guild members in letters mailed Jan. 13, is effective April 1. 
Other entertainment industry union benefit plans are expected to
follow the Writers Guild Fund's lead. A.S.L.

Labor Arbitrator Rejects Partner Benefits Claim at Kent State

In American Association of University Professors, Kent State
Chapter and Kent State University, 95-1 ARB (CCH)  5002
(Strasshofer, Arb.), the Grievant, a professor at Kent State, was
denied medical coverage for his domestic partner because he
indicated that his "spouse" was the same sex as himself.  A
grievance was filed on his behalf by the American Association of
University Professors (AAUP), which was submitted for
arbitration, but the grievance was denied by Arbitrator Roland
Strasshofer.

AAUP argued that the Intent and Purposes clause of its collective
bargaining agreement stated that the University would provide an
"environment free of decisions and judgments based on race,
color, religion, sex, age, disability, national origin or sexual
orientation," and further provided that there shall be "no
unlawful discrimination against any employee . . . because of
race, color, religion, gender, sexual orientation. . . Such
policy shall apply to, but not necessarily be limited to:
employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or
other compensation. . ."  The AAUP posited that the Grievant's
partner was, for all practical purposes, the Grievant's spouse,
save only that Ohio does not recognize same-sex marriages, and
noted that the Ohio domestic violence statute's definition of
"persons living with a spouse" included people of the same sex.

The University's position was that medical coverage was to be
provided to employees, their spouses and certain unmarried
children.  It argued that homosexuals were but part of a larger
class of unmarried persons which also included filial relations
and parents; that this was not discrimination based on sexual
orientation, but a distinction based on marital status.  It was
noted that none of the three successive bargaining agreements
referenced in the opinion provided for coverage of same-sex
partners.

Arbitrator Strasshofer adopted the University's position, making
a specific finding that there was no discrimination against the
Grievant.  The claim was characterized as "a fabric woven of
invisible thread.  It weaves a `spouse,' a `marriage,' a
`partner,' a `sponsored male,' and a `same sex domestic partner.'
Then it completes a cloth that tailors an incorrect use of
`spouse' woven with `male,' and use of words and phrases
descriptive to the Grievant but not to the contract language." 
The arbitrator stated that issues raised by the intent and
purposes clause of the agreement had been referred to a Planning
Committee which would attempt to implement these goals.  The
Planning Committee's report recommended medical coverage for
unmarried partners but not same-sex partners.  It remains to be
seen, the arbitrator stated, whether the Board of Trustees would
extend coverage to unmarried partners or same-sex partners. 
"Does sexual orientation pertain to health insurance benefits to
either non-married partners or same-sex partners?  This is a
policy decision resting in the Board of Trustees and not in the
Arbitrator."  Strasshofer found no equal opportunity claim, as
the Grievant's status was unaffected by the decision in terms of
his position, promotion, faculty status, or benefits.  The
Grievant was not discriminated against -- he was merely
ineligible for the benefits applied for, the arbitrator
concluded. S.K.

Other Domestic Partnership Updates

New York State's Office of Court Administration announced to
judges on Jan. 12 that domestic partnership benefits eligibility
would extent to the state judiciary effective Jan. 26 on terms
similar to those recently negotiated by unions representing non-
judicial court personnel.  After former Gov. Mario Cuomo
announced his intention of providing domestic partnership
benefits to state employees of the executive branch, civil
service unions negotiated agreements providing such benefits for
union-represented employees during the last several months of
1994.  Although the new governor, George Pataki, has expressed
unhappiness about the benefits and intimated he would seek to
eliminate them in the next round of collective bargaining, there
are now stories that benefits will likely be extended to non-
represented supervisory, confidential and managerial personnel of
the state as an equity matter since the employees who work for
them are now eligible for these benefits.

Administrative Law Judge Steven E. Presberg of the New York City
Commission on Human Rights issued a recommended decision and
order Dec. 20 in consolidated cases charging Jack LaLanne Fitness
Centers with violating the human rights ordinance by refusing to
treat domestic partners the same as spouses for membership
purposes.  The case involved two gay male couples who sought
membership under the respondent's "family add" program.  Although
the respondent claimed it modified its program to comply with the
law, Presberg found that gay couples were subjected to disparate
treatment, asserting that "A program that includes spouses of
current members must be offered on equal terms to domestic or
life partners," and that only the program as it applied when the
complainants were denied access was relevant to the complaint. 
However, in light of the respondent's modifications, Presberg
urged a settlement attempt before proceeding to trial.  Baldacci
v. Jack LaLanne Fitness Centers, Nos. PA 93-0597 & MPA 94-0004.

The Washington Post reported Jan. 2 that the following D.C. firms
have joined Covington & Burling in extending health benefits
eligibility to the same-sex partners of their employees: Arent
Fox Kintner Plotkin & Kahn; Dow, Lohnes & Albertson; Finnegan,
Henderson, Farabow, Garrett & Dunner; Howrey & Simon; Shaw,
Pittman, Potts & Trowbridge; Steptoe & Johnson; and Wiley, Rein &
Fielding.  These seven firms formed a consortium in 1993 to buy
health coverage as a group; their plans went into effect Jan. 1. 
The Post reported that Crowell & Moring was also considering
extending benefits, but ran into a price obstacle with their
insurance carrier.

Duke University President Nan Keohane announced Jan. 6 that the
university will extend spousal job benefits to same-sex partners
of its employees sometime this spring, as a method of
implementing the university's non-discrimination policy adopted
in 1988.  Although most benefits available to spouses of
employees will also extend to domestic partners, there will be
some gaps in life insurance coverage, due to the refusal of
carriers to provide the coverage.  Charlotte Observer, Jan. 8.

Additional private sector companies extending benefits to
domestic partners of employees recently include Consumers Union
and Informix (a software company), according to Internet
postings.  An Apple employee posted the information that
Prudential Insurance Company is now selling group health policies
that will cover domestic partners if the group has 50 or more
members.  The Olympia, Washington, city council voted Nov. 29 to
extend benefits coverage to domestic partners of city employees,
effective Jan. 1.  A.S.L.

2nd Circuit Revives Challenged SEC Proxy Policy

Reversing a decision by U.S. District Judge Kimba Wood that had
in effect required Cracker Barrel Old Country Store to include in
its proxy statement to shareholders a proposal by the New York
City Employees' Retirement System and others to bar anti-gay
discrimination by the corporation, the U.S. Court of Appeals, 2nd
Circuit, ruled Jan. 3 that the Securities and Exchange Commission
had not violated the Administrative Procedure Act when it sent a
"no-action letter" to Cracker Barrel taking the position that the
corporation was free to omit the shareholder proposal from its
proxy statements.  N.Y.C. Employees' Retirement System v.
Securities and Exchange Commission, 1995 WL 4921.

In 1991, Cracker Barrel issued a press release announcing it
would no longer employ persons "whose sexual preferences fail to
demonstrate normal heterosexual values which have been the
foundation of families in our society."  Cracker Barrel then
discharged several lesbian or gay employees.  In the ensuing
uproar, Cracker Barrel rescinded this policy, but refused to
reinstate the discharged employees or to adopt a formal non-
discrimination policy.  Several shareholders, led by the N.Y.C.
employees' pension fund, administered by then-City Comptroller
Elizabeth Holtzman, presented a shareholder proposal seeking to
compel Cracker Barrel to adopt a non-discrimination policy. 
Cracker Barrel sent an inquiry to the S.E.C., seeking advice as
to whether it would face enforcement action if it refused to
include this proposal in its proxy statements mailed to
shareholders in advance of the annual meeting.  Under then-
prevailing S.E.C. rules, shareholder proposals about employment
policies relating to issues such as discrimination were required
to be included in proxy statements.  However, S.E.C. sent a "no
action letter" to Cracker Barrel, announcing a change in policy
under which such civil rights proposals no longer had to be
included in proxy statements.  On appeal, the commission ratified
this action by its staff.  The shareholders then sued the S.E.C.,
claiming that it could not change its policy through the simple
device of issuing a "no action letter," but rather had to follow
the notice and comment requirements of the Administrative
Procedure Act.  Judge Wood agreed, finding that the matter
involved a "legislative rule" as to which ADA requirements apply.

The court of appeals disagreed, in a decision by Judge Joseph
McLaughlin.  In light of the nature of "no action letters," which
are staff advisories not binding on the Commission or the courts,
McLaughlin found that policies announced in such letters are
merely "interpretive rules," as to which ADA requirements do not
apply.  Further, he noted that the shareholders could obtain
complete relief on their claim by suing Cracker Barrel directly
if it refused their next attempt to include such a proposal in
the annual shareholder proxy statement.  Because the S.E.C.'s no-
action letter was not binding on the courts, the shareholders
could obtain an independent, de novo review of their alternative
claim that the agency had acted arbitrarily and capriciously in
its interpretation of its published rules governing shareholder
proxies.  The court expressed no view as to whether the S.E.C.
had breached the arbitrary and capricious standard in this
matter.  (When the shareholder proposal was presented at the last
annual meeting pursuant to Judge Wood's order, it received
support from only 14% of the share voted.)  A.S.L.

Child Porn Law Violates Oregon Constitution

An Oregon Court of Appeals panel ruled that state statutes
prohibiting the purchase of child pornography violate the Oregon
constitutional guarantee of free speech.  State of Oregon v.
Stoneman, 132 Or. App. 137, 1994 WL 718576 (Dec. 28).  The
ruling came in a close decision with four dissenting votes.  The
defendant was charged with paying to obtain a videotape and
magazine depicting sexually explicit conduct by a child under 18. 
The statute defines sexually explicit conduct as any of several
specified forms of primarily genital contact or exhibition.   The
Oregon Constitution, Art. I,  8, provides: "No law shall be
passed restraining the free expression of opinion, or restricting
the right to speak, write, or print freely on any subject
whatever; but every person shall be responsible for the abuse of
this right."  Citing Moser v. Frohnmayer, 315 Or. 372, 845 P.2d
1284 (1993), Justice Richardson wrote for the court that analysis
under  8 requires a determination whether (1) the prohibited
activity involves expression within the meaning of the article,
(2) the prohibition is directed at the substance of the
communication, as opposed to its effects, and (3) the prohibition
falls within a historical exception to the free speech guarantee.

The state argued that the statute (1) focused on the effects of
the speech, specifically child abuse; (2) fell within a
historical exception to Oregon free speech guarantees; and (3)
should be excepted from strict Constitutional review because it
seeks to protect children.  The court rejected all three
arguments and, affirming the decision below, found for the
defendant.  Neither side denied that the depictions were
expression, so the court scrutinized whether the law focused on
their contents or their effects.  Distinguishing State v.
Plowman, 314 Or. 157, 838 P.2d 558 (1992), cert. denied, 113 U.S.
2967 (1993), which upheld a hate crimes statute against a free
speech challenge, the court wrote that the hate crimes law
prohibited the effect of causing physical injury to a victim
selected based on group bias, and that using speech to prove a
crime differs from making expression itself an element of a
crime.  The court then cited City of Portland v. Tidyman, 306 Or.
174, 759 P.2d 242 (1988), which struck down an "adult businesses"
zoning ordinance that failed to specify the effects it was
supposed to prevent.  Because the statute recited only the nature
of the forbidden expression, the court concluded that it
impermissibly prohibited content rather than effects. 

Rejecting the State's "historic exception" argument, the court
noted that the members of the Oregon Constitutional Convention
were "rugged and robust individuals dedicated to founding a free
society unfettered by the governmental imposition of some
people's views of morality on the free expression of others," and
that precedent extended the resultant guarantee of free speech to
new technologies.  The party asserting a historical exception to
the freedom of speech bears the burden of proving that the
challenged restriction falls entirely within the historical
exception, and the court concluded that the State had failed to
meet its burden.

Last, the court rejected the State's argument that expression
involving children should be excepted from Constitutional
protection.  The court wrote that Oregon Supreme Court analysis
treats different types of speech equally, and that the state must
exercise its power to protect children legislatively within
Constitutional requirements.

In a dissenting opinion, Justice Deits agreed with most of the
court's analysis but argued that the court should have saved the
statute by inferring the harmful effects (child abuse) that the
legislature had tried to prevent, especially since the production
of every depiction prohibited by the statute would necessarily
include those effects.  In a separate dissent, Justice Edmonds
endorsed all three of the State' arguments on behalf of the
statute.  O.R.D.

Pennsylvania Court Rejects Gay Accountant's Appeal in Non-
Competition Case

Ruling 2-1, a panel of the Pennsylvania Superior Court rejected
an appeal by Daniel Miller of a judgment of the Cumberland County
Court of Common Pleas that Miller had violated a non-competition
clause in the employment contract with his former employer,
Donald DeMuth, even though DeMuth fired Miller when he learned
that Miller was gay.  DeMuth v. Miller, 1995 WL 15693 (Super.Ct.,
Harrisburg, Jan. 11).  Dissenting, Judge Johnson agreed with
Miller's argument that judicial enforcement of the non-
competition clause under these circumstances violated the Supreme
Court's ruling in Shelley v. Kraemer, 334 U.S. 1 (1948), that
courts violate the equal protection clause if they enforce
discriminatory private contracts.  The court found that Miller
had waived several of his key appellate arguments by not
presenting them at trial.  Lambda Legal Defense represented
Miller on appeal, having entered the case after the trial jury's
verdict against Miller in the Common Pleas court.

Miller had begun working for DeMuth, first as an independent
contractor and subsequently as an employee, in 1985.  Under the
terms of a series of 1-year written employment contracts, Miller
agreed that if he were terminated for cause under the agreement,
and if he subsequently set himself up in business within 50 miles
of any DeMuth client during a period of 5 years after his
discharge, he would be liable to DeMuth for "125% of the previous
12 months' charges for each of the employer's clients who retain
his professional management consulting or accounting services." 
The provision included a list of activities that would constitute
cause for discharge, including "homosexuality."  At the time he
first agreed to this provision, Miller had not yet "come out of
the closet."  Several years later he became involved in gay
activities in the Harrisburg, PA, area, and appeared on a
television program during which he was identified on screen as a
gay rights advocate.  DeMuth subsequently discharged him.  Miller
was popular with many of DeMuth's clients, who switched their
allegiance to him when he set up his own firm.  DeMuth then sued,
claiming a violation of the non-competition clause and demanding
compensation in an amount liquidated at trial as $110,000, which
the jury awarded to him after being instructed by the judge not
to consider any issues connected with Miller's discharge.

On appeal, the court found that Miller failed to present certain
issues at trial, most importantly the issue of whether the
provision was an unenforceable penalty clause.  The main focus on
appeal was Miller's contention that his constitutional right to
equal protection would be violated by the court using its
governmental power to assist DeMuth's discriminatory discharge by
enforcing the provision.  Writing for the court, Judge Popovich
insisted that enforcing the non-competition clause did not come
within the ambit of Shelley, since Miller was not contesting
DeMuth's right to discharge him under that provision.  To
Popovich, the case was about a former employee breaching a clear
contract obligation to avoid taking business from his former
employer for a period of 5 years -- or at least to pay the former
employer a premium if he did so.  

Dissenting, Judge Johnson found that this case came squarely
within the principles the Supreme Court articulated in Shelley. 
"[We] are presented with the unusual circumstance in which the
party wishing to discriminate seek's the court's aid in further
and, indeed, profiting from his discriminatory plan," he wrote. 
This case, like Shelley, is one in which the private `injury
caused is aggravated in a unique way by the incidents of
governmental authority. . .'" (citing Edmonson v. Leesville
Concrete Co., 500 U.S. 614, 622 (1991).  Finding that Shelley
principles are implicated, Johnson proceeded to analyze the equal
protection claim.  Noting the strong arguments that sexual
orientation discrimination might require heightened scrutiny
under the Equal Protection Clause, Johnson decided that this
issue need not be determined, because in his view there was no
rational basis to justify the government assisting this
particular discrimination.  On the contrary, he criticized the
trial court's statement that it was unable "to discern `any
current legislative or societal consensus' that disdain for
homosexuals is a type of bigotry," noting that gay state
employees in Pennsylvania are protected from discrimination by an
Executive Order of the Governor, most recently reiterated in
1988, and that 5 Pennsylvania cities had gay rights laws.
"Moreover," he observed, "even if it were true that state law
would not prevent DeMuth's private discrimination based on sexual
orientation, the United States Supreme Court, in Shelley, made
clear that, when courts enforce private action, such `judicial
action is not immunized from the operation of the Fourteenth
Amendment simply because it is taken pursuant to the state's
common-law policy,'" citing to Shelley, 334 U.S. at 31.

At press time, Miller and his local and Lambda attorneys were
considering whether to appeal the case to the Pennsylvania
Supreme Court.  A.S.L. 

Initiatives & Referenda

Voters in West Palm Beach, Florida, rejected an initiative to
repeal the city's sexual orientation anti-discrimination
ordinance by a decisive margin of 56 percent to 44 percent on
Jan. 10.  David Caton of the American Family Association, a
proponent of the measure, claimed it was defeated because a
special election would draw a small turnout concentrated on those
with a deep interest in the subject matter.  However, the local
press reported that the 22% turnout was actually higher than for
the most recent mayoral election. 

"Concerned Maine Families" has obtained sufficient petition
signatures to place on the state's 1995 general election ballot
an initiative measure intended to eliminate "sexual orientation"
as a basis for protection from discrimination in that state.  The
proposal is a "stealth" measure of the type ruled off the ballot
in Florida last year by that state's Supreme Court, on the ground
that it violated the single issue rule for voter initiatives. 
See In re Advisory Opinion to Attorney General - Restricts Laws
Related to Discrimination, 632 So.2d 1018 (Fla. 1994).  In
essence, the Maine initiative provides that the categories of
discrimination now covered in the Maine Human Rights Act shall be
exclusive and additional categories may not be added by the state
or its subdivisions and are repealed to the extent they already
exist.  Thus, it would repeal the Portland ordinance banning
sexual orientation discrimination, as well as block enactment of
a state law.  (Such enactment is distinctly possible in Maine;
the legislature previously passed a gay rights law that was
vetoed by the former governor, but the new governor has indicated
he will sign such a bill if it passes the legislature.) 
Opponents of the ballot measure promptly filed suit in the
Superior Court in Kennebec, asserting that the initiative
violates the state constitution and various statutes.  Wagner v.
Cosby.  The opponents of the ballot measure are represented by
Patricia A. Peard of the Maine Civil Liberties Union and Mary L.
Bonauto of Gay & Lesbian Advocates & Defenders (Boston).

A new complaint has been filed in Lassiter v. County of Alachua,
No. 94-2084-CA (Fla. Cir. Ct., 8th Jud. Cir., filed Jan. 5,
1995), challenging the state and federal constitutionality of
Amendment 1, a charter amendment passed in an initiative vote by
residents of Alachua County, Florida, on Nov. 8.  The new
complaint amends a pre-election complaint that sought
unsuccessfully to keep the measure from coming to a vote.  The
charter amendment provides that "the board of county
commissioners shall not adopt any ordinance creating
classifications based upon sexual orientation, sexual preference,
or similar characteristics, except as necessary to conform county
ordinances to Federal or State law."  The amended complaint,
filed on behalf of seven individual plaintiffs by Lambda Legal
Defense Fund staff counsel Suzanne Goldberg and Florida local
counsel Larry Turner, Robert Griscti, and Robert Rush, raises a
variety of constitutional objections to the amendment, including
equal protection, due process, freedom of speech and association,
vagueness (what does "similar characteristics" mean?), violation
of the single issue rule, and others.  At the same time Amendment
1 was passed, a separate measure was passed repealing the sexual
orientation discrimination ordinance that the county
commissioners had previously enacted last year; this simple
repeal measure is not challenged in the instant lawsuit.  

Anti-gay activists in Washington celebrated the new year by
filing a new initiative proposal with the Secretary of State's
Office that would ban adoptions by gays, bar public schools from
teaching that homosexuality is a healthy lifestyle, and prohibit
the state or local governments from extending anti-discrimination
protection to gays.  Similar measures filed last year failed to
qualify for the ballot.  

The U.S. Court of Appeals for the 6th Circuit has scheduled oral
argument in the Cincinnati initiative case for March 7.  The
lower court held the initiative unconstitutional on several
grounds.  * * *  The states of Idaho, Alabama and Virginia filed
an amicus brief authored by Robert Bork with the U.S. Supreme
Court, urging the court to hear Colorado's appeal of the Colorado
Supreme Court's decision that Amendment 2 is unconstitutional. 
A.S.L.

Federal Litigation Notes

In Hopkins v. Baltimore Gas and Electric Company, 1994 WL 720060
(Dec. 28), the U.S. District Court for Maryland ruled that same-
sex sexual harassment is not actionable under Title VII.  The
court's decision relied heavily on Garcia v. Elf Atochem North
America, 28 F.3d 446 (5th Cir. 1994), in which the Fifth Circuit
held that "[h]arassment by a male supervisor against a male
subordinate does not state a claim under Title VII even though
the harassment has sexual overtones."  28 F.3d at 451-452.  Even
if Title VII's prohibition of sex discrimination encompassed
same-sex harassment, the Hopkins court concluded that the
plaintiff had failed to establish discrimination based on sex
because the plaintiff's supervisor "was crude, insensitive and
offensive to all of his employees."  Additionally, the court
ruled that plaintiff could not establish a prima facie claim of
unlawful retaliatory termination because there was no evidence
that the defendant had taken any "`adverse employment actions'"
against him (quoting Raley v. Board of St. Mary's, 752 F.Supp.
1272, 1281 (D. Md. 1990)).  The court therefore granted
defendant's summary judgment motion with respect to all of
plaintiff's claims.  C.B.R.

Artful pleading has saved a civil rights claim brought by a
transsexual in the U.S. District Court in Kansas.  James v. Ranch
Mart Hardware, Inc., 1994 WL 731517 (Dec. 23).  Barbara Renee
James, a male to female transsexual, alleged that she was
discharged after she informed her employer, who had hired her as
a man, that she intended to begin living and working full time as
a woman.  She file a complaint alleging a violation of Title VII,
the Kansas Act Against Discrimination (sex discrimination), the
Americans With Disabilities Act.  While granting the employer's
motion to dismiss the ADA claim (ADA expressly excludes
transsexuals from coverage), District Judge Vratil found that
James stated a viable claim of sex discrimination by alleging
that "even though the defendant terminated her (a male, working
and living as a female), it would not have terminated one of its
female employees, living and working as a male."  While noting
that whether James can prove this allegation "remains to be
seen," nonetheless it is conceptually within the scope of the sex
discrimination by alleging disparate treatment of similarly
situated persons based on their gender.  A.S.L.

The U.S. Court of Appeals for the 5th Circuit unanimously
affirmed a district court decision in Louisiana Debating and
Literary Association v. City of New Orleans, 1995 WL 8991 (Jan.
26), holding that application of the city's anti-discrimination
ordinance to the membership policies of several clubs which
claimed to be "private" violates the clubs' constitutional rights
of freedom of association.  The circuit court found that the
plaintiff clubs were significantly distinguishable from the sorts
of clubs that have been found in other proceedings not to qualify
as truly private (such as Rotary, Kiwanis, etc.).  A.S.L.

State Litigation Notes

 The Idaho Court of Appeals ruled Jan. 19 in State v. Holden,
1995 WL 24240, that the crime against nature (CAN) law should be
construed not to apply to consenting married adults.  David
Holden had been convicted of several charges of sexually
molesting his wife, including two counts under the CAN statute,
I.C.  18-6605, involving anal and oral sex.  At trial he
testified that all of the sexual acts alleged in the complaint
were consensual.  Since consent is irrelevant under the CAN law,
the jury was not instructed to deal with the issue of consent on
these two counts.  Holden was convicted.  On appeal, the court
found that the federal constitutional privacy right, as
explicated in cases such as Griswold and, most recently, Planned
Parenthood v. Casey, 505 U.S. 112 (1992), clearly protected
consensual sex in private between married adults, and reversed
Holden's conviction on these two counts.  Observing in a footnote
that the statute, dating from 1864, is an anachronism, the court
pointed out that non-consensual sex, including oral and anal sex,
could be prosecuted under other, more recent statutes, but
refused to declare the CAN law facially invalid.  "We do not
address the question of private acts of consenting adults who are
not married to each other," wrote Judge Lansing, "as that issue
is not before us."  Although Holden's conviction on these counts
was reversed, the court affirmed his entire sentence on the other
counts, since he was sentenced to serve on all counts
simultaneously.  A.S.L.

The Colorado Court of Appeals reversed the conviction of a
criminal defendant because he was not allowed to cross examine
the complaining witness about his sexual orientation or to
present expert testimony regarding the behavior of people with
sexual identity conflicts.  Murphy v. People, 1994 WL 716921
(Dec. 29).  Michael Murphy and the complaining witness told very
different stories at Murphy's trial for sexual assault, assault
and false imprisonment.  Murphy testified that the complaining
witness had consented to various S/M sexual acts.  The
complaining witness denied that he had consented, testifying that
he was a confirmed heterosexual, looking to "make a new friend,"
and that Murphy was a "sick bastard" because of his sexual
orientation.  The complaining witness's testimony, the court
reasoned, created an inference of heterosexuality, which opened
the door for the defendant to cross examine him as to his sexual
orientation, to present evidence of a prior homosexual
experience, and to present expert testimony concerning sexual
identity conflicts as an alternate explanation for the
complaining witness's behavior.  The relevance of the excluded
evidence outweighed the presumption of inadmissibility pursuant
to the rape shield statute.  The Court of Appeals remanded the
matter for a new trial.  D.W.

On Dec. 20, 1994, the Supreme Judicial Court of Massachusetts
upheld the conviction of John Nichypor for the brutal murder of
David McLane.  Commonwealth v. Nichypor, 643 N.E.2d 452. 
Nichypor was convicted of murder in the first degree by joint
venture.  One night in 1988 Nichypor and two friends, Kevin
Pierce and Joshua Halbert, met at a restaurant and were
discussing "rolling a fag" that evening.  Pierce called David
McLane, a person they suspected was homosexual, and McLane picked
the three men up at the restaurant and brought them back to his
apartment.  The four men spent some time drinking alcohol and
watching pornographic movies.  Halbert and Pierce left the room
for a few minutes and when they returned they announced they were
homosexual to which McLane asked what they wanted to do.  Taking
McLane's response as a sexual overture the two men attacked him,
choking and stabbing him several times.  Nichypor participated by
holding a pillow over McLane's face to muffle his moans.  The men
then stole some items from the apartment and unsuccessfully tried
to take McLane's car.  McLane died from his injuries.  Nichypor
challenged his conviction on the grounds that the judge 1)
improperly instructed the jury on joint venture; and 2) refused
to instruct the jury on manslaughter.  Justice Nolan, writing for
the court, concluded that there was ample evidence to conclude
that Nichypor was a joint venturer in murder and that a
manslaughter charge was not supported even by the evidence most
favorable to Nichypor.  The court sustained Nichypor's conviction
without modification.  In an earlier decision, Pierce challenged
his conviction for the murder of McLane, arguing that McLane's
aggressive homosexual solicitation warranted a murderous
response.  The Supreme Judicial Court also sustained Pierce's
conviction.  Commonwealth v. Pierce, 419 Mass 28 (Nov. 21), 1994
LAWNOTES 141.  T.V.L.

The Florida Supreme Court affirmed the death penalty for an
inmate convicted of setting his lover afire in prison.  In Coney
v. State, 1995 WL 2423 (Fla. Jan. 5), Jimmie Coney's homosexual
lover, Patrick Southworth, spurned him, after which Coney doused
Southworth with a flammable liquid and set him afire.  Testimony
indicated that Coney set Southworth afire because Southworth was
a homosexual, had left Coney, and would no longer have sex with
him.  Coney introduced Southworth as his "boy" to other inmates. 
Coney was angry at Southworth the day before the murder and told
another inmate that he was going to get Southworth and "burn"
him.  In a per curiam opinion, the court rejected the defendant's
challenges regarding the trial court's instructions on the
victim's dying declarations.  Errors concerning the defendant's
right to be present at conferences, the inflammatory testimony of
the mother of one of the defendant's previous pre-teen rape
victims, and the erroneous inclusion of the aggravating factor of
knowing creation of a great risk of death to many persons, were
all declared harmless.  R.B.

In Murdock v. Higgins, 1994 WL 724060 (Dec. 29), a case that
involved allegations of negligent hiring, the Court of Appeals of
Michigan reversed the trial court and found that defendant
Charles Higgins, Director of the Missaukee County Department of
Social Services ("DSS"), was not liable to plaintiff Christopher
Murdock, an 18-year-old volunteer at the Kalamazoo County DSS,
for damages he suffered as a result of being sexually assaulted
by his supervisor, co-defendant Mark Kelley, who formerly worked
for the Missaukee County DSS. (The alleged sexual assault
occurred after plaintiff and defendant Kelley smoked two
marijuana joints together and defendant "stroked plaintiff's leg,
licked his ear, called him `baby' and repeatedly attempted to
push him onto the bed.")  Plaintiff alleged that defendant
Higgins was liable because he suspected that Kelley was gay when
Higgins supervised him, but failed to inform the Director of the
Kalamazoo County DSS, co-defendant Donna Jarvis, when Kelley
transferred to that office to work as a volunteer services
coordinator.  Following a jury verdict in favor of plaintiff and
damages in the amount of $120,774, the Court of Appeals reversed
and found that there was no special relationship between
plaintiff and defendant Higgins and, therefore, no duty on
Higgins' part to "transmit adverse employment information
concerning Kelley" to the future employer.  The court noted that
"(t)hough Higgins may have arguably had a social or moral
responsibility to convey his suspicions to Jarvis, . . . he did
not have a legal duty to do so."  The court also found that the
trial court erred in instructing the jury to consider a provision
of the Child Protection Law regarding a social worker's duty to
report reasonable suspicions of child abuse because there was no
evidence to support such a charge to the jury.  M.B.

At a hearing on Jan. 20 before Davidson County, Tennessee,
Circuit Court Judge Walter Kurtz, Deputy Attorney General Jerry
L. Smith requested reconsideration of the December decision
holding that Tennessee's sodomy law may violate the state
constitutional right of privacy.  Smith's main argument,
according to a Jan. 21 story in the Memphis Commercial Appeal,
was based on preventing the spread of AIDS and other STDs.  Smith
also cited writings of Charles Soccarides, a N.Y. psychiatrist,
who contends that homosexuality is a "pathology" surrounded by
other health risks, including AIDS, drug abuse, depression and
alcoholism.  (Soccarides' son is a gay politician serving in the
Clinton Administration, contemplating a run for elective office
in New York.) Abby Rubenfeld, representing the plaintiffs,
observed that the public health argument was flawed when it came
to lesbians, and that the state had failed to submit expert
testimony to counter the sworn expert testimony introduced by the
plaintiffs.  Kurtz promised to rule "as quickly as I can" on the
pending motions for summary judgment. * * * The ACLU is
reportedly entering a case in Oklahoma challenging the state's
sodomy law, which only applies to gays and lesbians.  The case
stems from the November conviction of a gay man in Oklahoma City
Municipal Court.  We hope to have full details to report next
month. A.S.L.

In a unanimous decision, the Idaho Supreme Court held Jan. 5 that
because the legislature has not provided procedures governing
adult adoptions, such adoption may not be approved by the courts,
even though there is a legislative provision that authorizes
them! Melling v. Chaney, 1995 WL 2530.  In this case, an adult
wanted to be adopted by her step-father, but her birth father
objected.  The magistrate and lower court both upheld the
adoption, finding that the consent of a birth parent is not
needed for an adult adoption.  While agreeing with this
conclusion, the Supreme Court found that the legislature had
never spelled out procedures to govern adult adoptions.  The
court also held that in the absence of such express procedures,
it did not have authority to invent appropriate procedures.  It
pointed to express procedures governing adult adoptions in
neighboring states, and emphasized that adoption is a creation of
statute, not recognized at common law.  Although the case does
not concern same-sex adult adoptions by gays, obviously the
ruling would be cited as negative precedent were a same-sex adult
couple to apply for adoption in Idaho.  A.S.L.

Legislative Notes

On Dec. 30, San Francisco Mayor Frank Jordan signed into law a
measure passed unanimously by the Board of Supervisors adding
"gender identity" to the list of characteristics in the city's
human rights ordinance.  The intent is to protect transsexuals
and transvestites from discrimination.  It was estimated that
approximately 5,000 residents of the city may be eligible for
protection under the law.

Municipal Ordinance Developments: The Cleveland Heights, Ohio,
city council voted 6-0 on Jan. 3 to amend seven city ordinances
so as to include "sexual orientation" together with other
traditional civil rights categories.  The city had previously
adopted limited protections; the new enactments were intended to
adopt protection co-extensive with that recently adopted in
Cleveland.  Cleveland Plain Dealer, Jan. 4. * * * The Dallas,
Texas, city council voted to add "sexual orientation" to its city
policy banning discrimination by the city.  Mayor Steve Bartlett,
a conservative Republican, announced his support for the measure
prior to the vote, according to an Internet posting from one of
the activists working on the measure. * * * The new mayor of
Lansing, Michigan, David Holister, issued an executive order
banning sexual orientation discrimination by the city; a measure
to adopt a full anti-discrimination ordinance is pending before
the city council, where proponents believe they have majority
support.

Disappointed at failing to qualify for the ballot last year in
the state of Washington, anti-gay activists are introducing their
ballot measures as proposed bills in the state legislature. 
House Bill 1171, which received its first reading on Jan. 16,
would provide that homosexuals, bisexuals, transsexuals, and
transvestites may not become adoptive, foster or placement
parents or have in such capacity a minor child under their care,
custody or control.

Senator Jesse Helms wasted little time introducing anti-gay
legislation in the new Congress.  One of his proposals, S.23,
would bar discharging government employees because they oppose
the government's actual or proposed policies "regarding
homosexuals."  This responds to an incident last year where an
EEO officer at the Agriculture Department was removed from his
position after speaking against the Department's anti-
discrimination policy for gays at a public event.  The other
proposal, S.25, would forbid use of federal government funds or
premises for pro-gay activities, including educational events,
held by lesbian and gay federal employee groups.  Such groups
exist at 17 major federal agencies.  On the brighter side, a bill
to amend the Civil Rights Act of 1964 and the Fair Housing Act to
add "sexual orientation" to the forbidden grounds for
discrimination was introduced as H.R.382 by Rep. Edolphus Towns
(D-N.Y.) on Jan. 9.  A.S.L.

Law & Society Notes

 The Washington Blade reported Jan. 6 that a little-noticed
ruling by Assistant Attorney General Walter Dellinger on Nov. 7
may imperil the continued existence of lesbian and gay employee
groups at federal agencies as they have come to function over the
past few years.  Dellinger construed a law on lobbying by federal
employees to, in essence, forbid these employee groups from
engaging in lobbying activity, on pain of criminal penalties for
the employees involved.  Dellinger's ruling was issued in
response to complaints by members of Congress that federal
employee associations had engaged in significant lobbying on
bills pending before Congress in the criminal justice area last
year.

San Diego, California, Superior Court Judge Judith McConnell, who
had been recommended for nomination to the federal bench by
Senator Barbara Boxer, has withdrawn from consideration due to
opposition from Republican Senators focused on her 1987 decision
to let a 16-year-old boy live with his deceased father's domestic
partner in preference to his mother; the father had died from
AIDS. 

Expecting to capitalize on the Boy Scouts of America's
recalcitrance on the issue of homosexuality, ATS Communications,
Inc., a long-distance phone company seeking new customers
acquired a Scouts mailing list in the Memphis area and sent out a
solicitation (much of it mailed to teenage boys) seeking new
business, claiming that its competitors AT&T and Sprint,
supported homosexual rights.  Indignant parents contacted the
Scouts, and a brouhaha ensued.  Opportunistic homophobia has now
boomeranged back on ATS.  Memphis Commercial Appeal, Jan. 26. 

A private party planned by some individuals as an AIDS fund-
raising benefit on New Year's Eve was raided by San Francisco
Police, sparking the preparation of a class action lawsuit,
according to the San Francisco Sentinel, Jan. 11.  Some of those
present at the party claimed that the police acted homophobically
and violently.  A.S.L.  

International Notes

On Dec. 19, Royal assent was given to Australia's Human Rights
(Sexual Conduct) Act of 1994.  The operative language states:
"Sexual conduct involving only consenting adults acting in
private is not to be subject, by or under any law of the
Commonwealth, a State or a Territory, to any arbitrary
interference with privacy within the meaning of Article 17 of the
International Covenant on Civil and Political Rights." Adults are
defined as persons who are 18 years old or more.  The national
government passed this law to bring various errant governmental
subdivision into line with rulings under the International
Covenant, which has been construed to prohibit penalizing private
consensual sodomy between adults.  According to our correspondent
in Sydney, attorney David Buchanan, the practical effect of the
law will be to override the sodomy law in the state of Tasmania,
reduce the age of consent for gay male sex from 21 to 18 in
Western Australia, and override the definition of "private" sex
in the Northern Territory, where sexual conducted involving more
than two persons is not considered private for purposes of the
sex crimes laws.

A second member of the Canadian parliament has come out of the
closet.  Real Menard, a French-Canadian who represents a working-
class district in Montreal, came out in response to anti-gay
remarks made in Parliament by another member.  Menard is a member
of the Bloc Quebecois, which seeks independence for Quebec
Province.  Washington Blade, Jan. 6. 

Following the new approach in the U.S., British Immigration has
now awarded asylum to a gay man from Rumania, according to a
report from Capital Gay relayed by the Washington Blade.  This
was reportedly the first instance in which British immigration
authorities have classified gays as "a social group" whose status
is, in a sense, immutable.  A.S.L.

Professional Notes

The board of directors of the Lesbian and Gay Law Association of
Greater New York has elected officers for 1995.  They are: Aubrey
Lees, President; Erica Bell, First Vice President; Paul Feinman,
Second Vice President; Angie Iglesia Martell, Secretary; Lori
Cohen, Treasurer.  Aubrey Lees' membership in LeGaL dates back to
the NY Law Group days prior to formal incorporation, and she has
been active on many LeGaL committees and the board of directors
for many years.

Mark Barnes, a New York lawyer who was formerly associate
commissioner at the N.Y.C. Health Department and before that
policy director at the New York State AIDS Institute, has been
designated executive director of the AIDS Action Council in
Washington, D.C., effective February 1. A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 

PWA in Managed Care Program Can Sue for Inferior Treatment Under
Disability Discrimination Laws

Denying defense motions for summary judgment and attorneys' fees,
a federal district court ruled that a PWA can sue his doctor and
managed care health plan for allegedly providing substandard care
because of his HIV status.  Woolfolk v. Duncan, 1995 WL 11976
(E.D.Pa., Jan. 5).  The Plaintiff subscribed to a managed health
care system that required him to see his primary care provider
for authorization of benefits, including specialty care and
hospitalization.  In 1992, the Plaintiff learned he had HIV, and
disclosed this fact to the Defendant doctor during an office 
visit.  The Defendant allegedly said that, instead of treating
HIV, he referred patients with HIV-related problems to an
infectious-disease specialist, but the Defendant did not refer
the Plaintiff to a specialist.  The Plaintiff next saw the
Defendant on Nov. 1, 1993, when he sought treatment for chest
pain.  The Defendant performed a physical exam and ordered tests,
diagnosed the symptoms as muscle pain, and prescribed an
analgesic.  The pain worsened, and the next day the Defendant
authorized emergency room treatment.  The Plaintiff was treated
and released on Nov. 3.  On Nov. 4, the Plaintiff returned to the
Defendant's office 
complaining of continued pain and demanding emergency room
treatment.  The Defendant refused, and suggested a psychiatrist. 
The Plaintiff went to the emergency room anyway, and was
diagnosed with gastrointestinal bleeding, pneumonia, staph aureus
bacterimis, and AIDS.  

The Plaintiff sued the Defendant doctor, the healthcare  plan,
and the hospital, alleging that the doctor treated him like an
outcast and failed to use proper judgment because he had HIV. 
The Plaintiff claimed discrimination in violation of the
Americans with Disabilities Act and the Rehabilitation Act, as
well as intentional infliction of emotional distress,
abandonment, breach of contract, negligent hiring, and punitive
damages.  All of the defendants filed motions for summary
judgment; the hospital also demanded sanctions against the
plaintiff's attorney, claiming the suit against it was frivolous. 
The hospital and the managed health plan claimed that they could
not be held liable for the doctor's conduct because he was acting
as an independent contractor.  

Observing that the Defendant doctor was on the hospital staff,
but finding no evidence that he was acting in the course of
hospital employment when he treated patients at his office, the
court denied the hospital's motion for sanctions but granted its
motion for summary judgment.  The court found evidence that the
doctor was acting as a servant of the healthcare plan, however,
because his contract gave the program significant control over
his practice with respect to plan enrollees, establishing a
genuine issue of material fact as to the plan's employer
liability.  The Rehabilitation Act prohibits discrimination
against "otherwise qualified" individuals on the basis of
disability; the Act has been interpreted to prohibit
discrimination based on HIV status.  Applying the Act to the
context of managed health care, the court ruled that a health
provider who receives federal funds may not withhold medical
benefits, without reasonable accommodation, solely based on a
participant's disability, but may only act pursuant to a bona
fide medical reason.  Similarly, the ADA prohibits
disability-based discrimination in public accommodations. 
Finding genuine issues of material fact as to the discrimination
issue, the court denied summary judgment. The court granted
summary judgment for the doctor on the abandonment claim, seeing
no authority that such a cause of action exists in Pennsylvania,
but denied summary judgment with respect to the emotional
distress and punitive damages claims, finding genuine issues of
material fact.  O.R.D.

Nursing Home May Delay Admission Of HIV-Positive Patient

The Court of Appeals of Tennessee found that a nursing home does
not unlawfully create barriers to the admission of a patient with
AIDS when the nursing home claims that the patient's admission
was delayed pending verification of ability to pay.  Imperial
Manor, Inc. v. White, 1994 WL 719804 (Tenn. App., Dec. 30).  The
Tennessee Department of Health investigated complaints brought
against Imperial alleging that it had denied admission to an AIDS
patient when a nursing bed was available.  Imperial claimed that
it did not admit the patient because of understaffing and
concerns regarding the patient's insurance.  Even though Imperial
had a bed available, the patient required a 24-hour intravenous
infusion and nursing supervision that Imperial could not provide. 
The patient's Medicaid eligibility had not been verified to
Imperial until a hearing before the State's Board for Licensing
Health Care Facilities.

Tennessee law provides that "no person on the grounds of . . .
handicap, will be excluded from participation in the provision of
any care or service of [a health care] facility."  Imperial's own
policy, which it was obliged by law to obey, states that "the
Facility welcomes all persons seeking its services . . .
including those persons known to be HIV positive . . ."  The
Board found that Imperial, in refusing admission to the patient,
"did create barriers for admission of an AIDS patient that were
peculiar for that patient and not others, participating in
unlawful behavior" and placed Imperial on one year's probation.

The Chancery Court reversed the Board's order, finding no
substantial and material evidence that Imperial created barriers
to the admission of the patient.  On the State's appeal, Judge
Lewis of the Tennessee Court of Appeals agreed that there was not
substantial and material evidence in the record to support the
Board's finding that Imperial created barriers related to the
patient's admission.  R.B.

AIDS Federal Litigation Notes

The Supreme Court denied a petition for certiorari in Marchica v.
Long Island R.R. Co., 31 F.3d 1197 (2nd Cir. 1994), cert. denied,
No. 94-756 (Jan. 9), in which the lower courts upheld a $126,000
award against the Railroad on behalf of a worker who sustained a
needlestick injury while performing custodial work on the
railroad's property.  The worker did not allege that he became
HIV-infected in the incident; the basis of his claim was solely
"AIDS phobia" as a result of suffering the needlestick.

In a consent decree approved by the U.S. District Court in
Philadelphia on Jan. 3, the Laborers District Council Building
and Construction Health and Welfare Fund agreed to settle a suit
initiated by the Equal Employment Opportunity Commission over
discriminatory AIDS-caps in its medical benefits plan.  The Fund
capped lifetime HIV-related medical benefits at $10,000 per
person, which EEOC charged was a violation of Title I of the
Americans With Disabilities Act, which forbids discrimination on
the basis of disability in terms and conditions of employment,
including employee benefits.  EEOC had issued a determination
letter to this effect on Sept. 28, 1993, prior to filing suit
against the Fund.  The settlement requires removal of the cap,
payment of $42,500 in medical expenses to the John Doe
complainant who initially brought the matter to EEOC, and $1,209
to the estate of a deceased fund member who was denied payments
due to the cap.  See BNA Daily Lab. Rep. No. 3, 1/5/95, p. A-4. 

The 9th Circuit has issued a revised ruling in Doe v. Attorney
General of the U.S., 1995 WL 15698 (original opinion filed Aug.
30, opinion withdrawn and new opinion filed Jan. 18), in which it
upheld the trial court's determination that the FBI did not
violate  504 of the Rehabilitation Act when it stopped sending
its agents to a doctor for physical examinations because of fear
of AIDS.  The trial court determined that the FBI, responding to
rumors about the doctor's health, sought to inquire about whether
there was cause for concern, but that the doctor failed to
respond adequately to the FBI's inquiries, giving generalized
assurances without discussing the details of his condition.  (The
doctor was HIV+, and subsequently died from AIDS.)  The revised
opinion by the 9th Circuit parallels the original opinion
affirming the trial court, except for a final section which may
be responsive to some concerns raised about the confidentiality
discussion in the first opinion by plaintiff's motion for
rehearing or rehearing en banc.  There is no indication in the
revised opinion, at least as transmitted on Westlaw, as to
whether the court has ruled on the motion.  Matt Coles of the
ACLU Lesbian & Gay Rights Project represents the plaintiffs.
A.S.L.

AIDS State Litigation Notes

The Commonwealth Court of Pennsylvania ruled Oct. 31 that a
workers compensation claimant's case was properly dismissed when
he refused to provide evidence regarding his HIV status that the
compensation referee believed was needed by the employer to
contest the claim.  Doe v. Workmen's Compensation Appeal Board
(USAir, Inc.), 1994 WL 733901.  The claimant, a flight attendant
for US Air, had filed a compensation claim early in 1990 for
"situational and clinical depression" which he attributed to a
work-related injury suffered in 1987.  At the hearing before the
referee, the claimant made a motion in limine to keep information
about his positive HIV status confidential from his employer. 
The referee advised the claimant that the referee considered this
information relevant to the employer's defense of the claim, but
the claimant refused to agree to disclosure of this information,
so the referee dismissed the claim.  The Commonwealth Court sided
with the referee, noting that under Pennsylvania law a plaintiff
who puts his physical condition in issue in a proceeding for
damages is required to make full disclosure of his medical
condition.  Although Pennsylvania has passed an HIV
confidentiality law, it was not in effect at the relevant time
and thus inapplicable; nonetheless, the court observed that the
confidentiality law does authorize disclosure upon demonstration
of "compelling need."  The court stated no opinion as to whether
this sort of situation would meet that standard, however. * * * 
In an unrelated case, Bailey v. Unemployment Compensation Board
of Review, 1994 WL 733898 (Oct. 7), the Commonwealth Court upheld
a denial of unemployment insurance benefits to James Bailey, who
quit his job as a non-teaching school assistant because he
believed his HIV status posed a danger to the school children. 
Without discussing whether an HIV+ person performing Bailey's job
would present a health threat, the court found that the board of
review's refusal to waive its ordinary rules of eligibility in
Bailey's case was not supported by any asserted "public policy"
concerning AIDS or HIV infection. A.S.L.

Judge Maloney of the Connecticut Superior Court, Hartford, ruled
Dec. 19 that a hearing officer for the Commission on Human Rights
and Opportunities erred by failing to strike the direct testimony
of a civil rights complainant with AIDS whose cross-examination
was interrupted and never resumed due to his subsequent ill
health and death.  Ann Howard's Apricots v. Commission, 1994 WL
714401.  The complainant had worked as a waiter for the
respondent restaurant, but was out on sick leave.  He concealed
the nature of his illness from his employer.  While on sick leave
he was diagnosed as HIV+.  During his sick leave he admitted to
management that he had not told the truth about his physical
condition, but he continued to conceal his HIV status.  When he
and his doctor felt he had sufficiently recovered to go back to
work, he was denied reinstatement by the respondent, on the
ground that he had given various untrue explanations for his
illness and thus was no longer credible.  He filed charges with
the Commission, claiming his discharge was due to his HIV status,
and a hearing was held.  His cross-examination was interrupted to
accommodate other witnesses; by the time it could be resumed, he
was too ill to testify and subsequently died.  The respondent
moved to strike all his testimony; the hearing officer refused to
do so, but said she would give it less weight due to lack of
cross examination.  The Commission ultimately found against the
respondent and awarded damages.  The Superior Court found that it
was improper to deny the respondent's motion to strike the
testimony.  The complainant's testimony was central to the case,
and his cross-examination was interrupted just as the
respondent's attorney was bearing in on the crucial issue of
complainant's truthfulness in reporting his condition to the
employer.  Under the circumstances, ruled Judge Maloney, it was
an abuse of discretion to consider the complainant's testimony. 
The case was remanded for entry of an appropriate order based on
the trial record without the complainant's testimony.  A.S.L.

The D.C. Human Rights Commission awarded compensatory damages of
$220,000 in its first employment-related AIDS discrimination case
to go through the entire administrative trial process. 
Complainant Richard Hamilton claimed he was discriminatorily
discharged by Natural Motion by Sandra, a hair salon where he was
employed as "artistic director," because of his AIDS and the
changes it caused in his appearance.  The Commission found the
complaint justified, issuing an opinion Dec. 29 that
characterized as "reprehensible" the employer's action of
terminating Hamilton's livelihood because of fears about his
condition "after receiving assurances from [Hamilton]'s health
provider that [his] condition was not a threat to anyone. . ." 
The employer has filed a motion for reconsideration, and Hamilton
has also filed a motion asking the Commission to reconsider its
damages calculation.  The employer's lawyer indicated that they
will appeal to the D.C. Court of Appeals.  Washington Blade, Jan.
20.  A.S.L.

AIDS Law & Society Notes

The C.D.C. announced the results of a study of patients of a
second Florida dentist with AIDS.  The study, published in the
Dec. 1 issue of Annals of Internal Medicine, found that a small
percentage of the dentist's patients were HIV-positive, but in
every case their infection could be traced to a different source. 
Unlike the Acer case, in which the C.D.C. continues to maintain
(without proof) that Acer was the source of infection for his
patients, in this case C.D.C. has concluded that even defective
infection control by the dentist did not lead to transmission of
HIV to his patients.  Washington Blade, Jan. 6.  

The N.Y.C. Board of Education adopted a new AIDS curriculum on
Jan. 18 that stresses abstinence but also allows for condom
demonstrations and classroom discussion of homosexuality.  Safe
sex instruction is recommended to begin at the junior high school
level, and condom instruction can begin in the 9th grade.  (Too
late for all those pregnant 8th grade girls, but the Board of Ed
is more into symbolism than substance, unfortunately.)  New York
Times, Jan. 19. A.S.L.

PUBLICATIONS NOTED & ANNOUNCEMENTS

ANNOUNCEMENTS

Lambda Legal Defense & Education Fund, the American Bar
Association's Section on Individual Rights and Responsibilities
Committee on the Rights of Lesbians and Gay Men, Gay & Lesbian
Advocates and Defenders (Boston) and other groups, are forming a
national network of attorneys to research the critical
constitutional and legal questions that may arise following what
could be a landmark victory in Baehr v. Lewin, the pending same-
sex marriage case in Hawaii.  Research is needed on the laws and
precedents in each state concerning recognition of out-of-state
marriages.  The coordinators of this project have put together a
detailed questionnaire that needs to be answered on a state-by-
state basis, and they hope to receive research results from
participants by June 1, 1995.  If you are interested in
participating in this effort, contact Evan Wolfson, Esq.,
Director of Lambda's Marriage Project, at (212-995-8585; fax 212-
995-2306) to obtain a copy of the questionnaire.

Lambda Legal Defense is hiring a staff attorney for its Western
Regional Office in Los Angeles.  This position focuses on the
full range of sexual orientation and AIDS-related legal work, and
involves litigation, writing, public speaking, providing support
for the work of cooperating attorneys, writing amicus briefs,
etc.  Lambda seeks applicants with at least 5 years legal
experience including litigation practice, and experience working
on lesbian and gay issues and in communities of color is
preferred.  Salary range is $40-50,000 plus benefits. Application
deadline is Feb. 21; send letter, resume and writing samples to:
Amelia Craig, Managing Attorney, Lambda Legal Defense Fund, 6030
Wilshire Blvd., Suite 200, Los Angeles, CA 90036-3617.

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Abrahamson, Shirley S., Susan Craighead & Daniel N. Abrahamson,
Words and Sentences: Penalty Enhancement for Hate Crimes (The Ben
J. Altheimer Lecture), 16 U. Ark. at Little Rock L.J. 515 (1994).

Bakken, Timothy, The Responsibility of Schools and Colleges to
Monitor Pornography to Prevent Sexual Harassment, 45 Lab. L. J.
762 (Dec. 1994).

Bamforth, Nicholas, Sexual Orientation and Dismissal from
Employment, 144 New L. J. (U.K.) 1402 (Oct. 14, 1994).

Briggs, Steven, Domestic Partners and Family Benefits: An
Emerging Trend, 45 Lab. L. J. 749 (Dec. 1994).

Caminker, Evan H., Precedent and Prediction: The Forward-Looking
Aspects of Inferior Court Decision-Making, 73 Texas L. Rev. 1
(1994) (uses gays-in-the-military Meinhold case as illustration
for proposal as to when lower courts should go beyond appellate
precedent in deciding cases).

Cox, Barbara J., Same-Sex Marriage and Choice of Law: If We Marry
in Hawaii, Are We Still Married When We Return Home?, 1994 Wis.
L. Rev. 1033.

Epstein, Richard A., Caste and the Civil Rights Laws: From Jim
Crow to Same-Sex Marriages, 92 Mich. L. Rev. 2456 (Aug. 1994)
(reply to Sunstein, see below, with extensive discussion of
philosophical issues surrounding same-sex marriage litigation).

Henson, Deborah M., Will Same-Sex Marriages Be Recognized in
Sister States?: Full Faith and Credit and Due Process Limitations
on States' Choice of Law Regarding the Status and Incidents of
Homosexual Marriage Following Hawaii's Baehr v. Lewin, 32 U.
Louisville J. Fam. L. 551 (1993-94).

Jones, Franklin D., and Ronald J. Koshes, Homosexuality and the
Military, 152 Am. J. Psychiatry No. 1, 16 (Jan. 1995).

Nixen, Peter, The Gay Blade Unsheathed: Unmasking the Morality of
Military Manhood in the 1990s, An Examination of the U.S.
Military Ban on Gays, 62 UMKC L. Rev. 715 (Summer 1994).

Sanders, Douglas, Constructing Lesbian and Gay Rights, 9 Canadian
J. L. & Society 99 (Fall 1994).

Schacter, Jane S., Metademocracy: The Changing Structure of
Legitimacy in Statutory Interpretation, 108 Harv. L. Rev. 593
(Jan. 1995)(uses Braschi v. Stahl Associates to illustrate new
theories of statutory interpretation).

Sherry, Suzanna, Forward: State Constitutional Law: Doing the
Right Thing, 25 Rutgers L.J. 935 (Summer 1994).

Sunstein, Cass R., The Anticaste Principle, 92 Mich. L. Rev. 2410
(Aug. 1994) (from Symposium: Visions of Equality: The Future of
Title VII).

Williams, Grant, Feminist Considerations of Harm and the
Censorship of Pornography, 7 Auckland U. L. Rev. 517 (1993).

Student Notes & Comments: 



Alexander, Linda Murphy, A Constitutional Battle: Will Clinton's
"Don't Ask, Don't Tell" Policy Level the Field?, 2 San Diego
Justice J. 461 (Summer 1994).

Birch, Mary Lynne, Modern Reproductive Technology and Motherhood:
The Search for Common Ground and the Recognition of Difference,
62 U. Cin. L. Rev. 1623 (Spring 1994).

Confusione, Michael James, Sexual Conduct, Sexual Orientation and
State Constitutional Law, 25 Rutgers L.J. 1004 (Summer 1994).

Cowan, J. Robert, The New Family Plan: Employee Benefits and the
Non-Traditional Spouse, 32 U. Louisville J. Fam. L. 617 (1993-
94).

Hamilton, Tamara L., Constitutional Law -- Anti-Bias Crime
Legislation and the First Amendment -- Supreme Court Upholds
Wisconsin's Penalty Enhancement Law, 16 U. Ark. at Little Rock
L.J. 659 (1994).

Kalyan, Ron, Regulation of Nude Dancing In Bring Your Own Bottle
Establishments In the State of Pennsylvania: Are the State's
Municipalities Left to Fend for Themselves?, 99 Dickinson L. Rev.
169 (Fall 1994).

McLaughlin, Kenneth S., Jr., Challenging the Constitutionality of
President Clinton's Compromise: A Practical Alternative to the
Military's "Don't Ask, Don't Tell" Policy, 28 John Marshall L.
Rev. 179 (Fall 1994).

Rubin, Gretchen Craft, and Jamie G. Heller, Restatement of Love
(Tentative Draft), 104 Yale L. J. 707 (Dec. 1994) (It is true
what they say about Yale . . . ).

Swisher, Anthony W., Nobody's Hero: On Equal Protection,
Homosexuality, and National Security, 62 George Wash. L. Rev. 827
(June 1994).

Walsh, Kelli, The Difficulty in Defining Obscenity Along Feminist
Lines: Rethinking Canada's Butler Decision, 15 Loyola of L.A.
Int'l & Comp. L. J. 1021 (Aug. 1994).

Specially Noted:

 In the Jan. 23 issue, The Nation provides an informative behind
the scenes look at some of what went on in Idaho during the
recent electoral battle over Proposition 1.  "Gay Politics in the
Heartland: With the Lesbian Avengers in Idaho," by Sara Pursley,
260 The Nation 90-94. * * * The January 1995 issue of the ABA's
Student Lawyer includes a profile of the International Gay and
Lesbian Human Rights Commission, on page 63. * * * The Winter
1995 issue of Human Rights, a quarterly magazine published by the
ABA's Section on Individual Rights & Responsibilities, features
an article by Rosemarie Buchanan titled "Young, Homeless and
Gay," discussing the problems of gay teens cast out by their
families and living on the streets (22 Hum. Rts. No. 1, at p.
43), and an article about the recurrent litigation over whether
religiously devout landlords can refuse to rent apartments to
unmarried couples by Jerry DeMuth, "Not in My Apartment!", at p.
44.

Symposia:

Special Issue: Immigration Law: United States and International
Perspectives on Asylum and Refugee Status, 9 Amer. Univ. J. Int'l
L. & Policy No. 4 (1994).

AIDS & RELATED LEGAL ISSUES: 

 Aiken, Jane, and Michael Musheno, Why Have-Nots Win in the HIV
Litigation Arena: Socio-Legal Dynamics of Extreme Cases, 16 L. &
Policy 267 (July 1994).

Brigham, John, Sexual Entitlement: Rights and AIDS, The Early
Years, 16 L. & Policy 249 (July 1994).

Closen, Michael, Robert Gamrath & Dem Hopkins, Mandatory
Premarital HIV Testing: Political Exploitation of the AIDS
Epidemic, 69 Tulane L. Rev. 71 (Nov. 1994).

Decker, Scott H., and Richard Rosenfeld, "My Wife is Married and
So is My Girlfriend": Adaptations to the Threat of AIDS in an
Arrestee Population, 41 Crime & Delinquency 37 (Jan. 1995).

Gregware, Peter R., Courts, Criminal Process, and AIDS: The
Institutionalization of Culture in Legal Decision Making, 16 L &
Policy 341 (July 1994).

Kane, Stephanie, Sacred Deviance and AIDS in a North American
Buddhist Community, 16 L. & Policy 323 (July 1994).

Mello, Jeffrey A., AIDS and the Law of Workplace Discrimination
(Boulder: Westview Press, 1995) (policy analysis of AIDS
discrimination litigation, with recommendations for legislative
reform).

Musheno, Michael, Introductory Essay: Socio-Legal Dynamics of
AIDS: Constructing Identities, Protecting Boundaries Amidst
Crisis, 16 L. & Policy 235 (July 1994).

O'Neil, Paul, Protecting ERISA Health Care Claimants: Practical
Assessment of a Neglected Issue in Health Care Reform, 55 Ohio
St. L.J. 723 (1994).

Wilson, Petra, Colleague or Viral Vector? The Legal Construction
of the HIV-Positive Worker, 16 L. & Policy 299 (July 1994).

Student Notes & Comments:

Goode, Joseph S., Perspectives on Patient Confidentiality in the
Age of AIDS, 44 Syracuse L. Rev. 967 (1993).

Hard, Vallori K., Mandatory Disclosure of AIDS Status by Health
Care Workers, 21 Western State U. L. Rev. 295 (Fall 1993).

Krenek, Sue A., Beyond Reasonable Accommodation, 72 Texas L. Rev.
1969 (June 1994) (critique of ADA).

Lawyer, Marjorie H., HIV and Dentistry, 29 Valparaiso U. L. Rev.
297 (Fall 1994).

Nelson, Cindy P., An Unnecessary Sacrifice: Restrictions on the
Right of Freedom of Movement in an Effort to Establish an
Effective Global AIDS Policy, 13 Dickinson J. Int'l L. 177 (Fall
1994).

Rees, Victoria L., AIDSPhobia: Forcing Courts to Face New Areas
of Compensation for Fear of a Deadly Disease, 39 Villanova L.
Rev. 241 (1994).

Snell, James Grant, Mandatory HIV Testing and Prostitution: The
World's Oldest Profession and the World's Newest Deadly Disease,
45 Hastings L. J. 1565 (Aug. 1994).

Stout, James R., and Thomas S. Tanana, Esq., Could California
Reduce AIDS by Modeling Nevada Prostitution Law?, 2 San Diego
Justice J. 491 (Summer 1994).

Symposia:

Special Issue on the Socio-Legal Dynamics of AIDS, 16 Law &
Policy No. 3 (July 1994) (individual articles noted above).

Specially Noted:

The December 1994 issue of American Psychologist includes a
section of several brief comments on HIV intervention and
prevention strategies from a variety of perspectives.

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.