LESBIAN/GAY LAW NOTES Lesbian & Gay Law Association of Greater New York ISSN 8755 9021 June 1995 Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: asleonard@aol.com Contributing Editor: Colin Crawford, Esq., New York 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; Mark N. Sperber, J.D., New York; Paul Twarog, Student, New York. 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) 6th Circuit Revives Cincinnati Charter Amendment A 3-judge panel of the 6th Circuit Court of Appeals unanimously ruled May 12 in Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 1995 WL 276248, that Issue 3, a city charter amendment enacted by Cincinnati voters in 1993 that forbids the city government from enacting, adopting, enforcing or administering "any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct, or relationship constitutes, entitles or otherwise provides a person with a basis to have any claim of minority or protected status, quota preference or other preferential treatment," is constitutional. The opinion by Judge Robert Krupansky rejects the constitutional theories under which the District Judge S. Arthur Spiegel applied strict or heightened scrutiny to the measure, and also rejected Spiegel's conclusion that the measure failed to meet even the most lenient "rationality" test. Opponents of the Cincinnati measure vowed to seek Supreme Court review, hoping that the case could be accepted quickly and considered in tandem with Romer v. Evans (the "Colorado Amendment 2 Case," which the Supreme Court will hear during its October 1995 Term. The court dealt first with the claim that government policies disadvantaging gays are subject to "heightened scrutiny" under the equal protection clause. Building on decisions by other circuit courts of appeals that had used Bowers v. Hardwick to deny such claims, the court found that Hardwick, which upheld the Georgia sodomy law against a due process privacy attack, was dispositive. The district court had held that gays are a "quasi-suspect" class, so that "heightened scrutiny" applied. Calling this a "novel ruling," Judge Krupansky held that the district court had "misconstrued" Hardwick, which Krupansky characterized as holding that "homosexuals possess no fundamental right to engage in homosexual conduct and consequently that conduct could be criminalized." (This is overbroad; Hardwick specifically and only held that the government may penalize persons who engage in anal or oral intercourse with other persons of the same sex, and said nothing about anything other than anal or oral intercourse.) The district court had distinguished Hardwick by finding that Issue 3 discriminated based on the status of being gay, lesbian or bisexual, rather than based on any particular conduct. Seizing on the district court's finding that gays, lesbians and bisexuals are "not identified by any particular conduct; to the contrary, they are distinguished by their `sexual orientation,' which references an innate and involuntary state of being and set of drives," Krupansky said, "[No] law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics such as innate desires, drives, and thoughts. Those persons having a homosexual `orientation' simply do not, as such, comprise an identifiable class. Many homosexuals successfully conceal their orientation. Because homosexuals generally are not identifiable `on sight' unless they elect to be so identifiable by conduct (such as public displays of homosexual affection or self-proclamation of homosexual tendencies), they cannot constitute a suspect class or a quasi-suspect class because `they do not [necessarily] exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group[.]' Bowen v. Gilliard, 483 U.S. 587, 602 (1987)." Thus, Krupansky concluded, people affected by the ballot measure were so affected because of their conduct, not their status, and could not be a suspect or quasi-suspect class because Hardwick allows criminalization of their class-defining conduct. (Surprising, isn't it, the versatility of the Hardwick decision? Now a precedent about "homosexual sodomy" can be used by the state to discriminate against people who merely proclaim their "homosexual tendencies"!) Consequently, the district court erred in subjecting the measure to heightened scrutiny under this theory. The district court had adopted alternative theories for finding the measure unconstitutional. Perhaps the most controversial was the theory that all identifiable groups in the population have a fundamental right to equal participation in the political process, which would be violated if that group was categorically precluded from seeking favorable policies through normal political processes such as lobbying legislators and other government officials. Stating that the district court had "erroneously fashioned this innovative right" from a series of Supreme Court decisions in cases involving race issues, the court insisted that the charter amendment "deprived no one of the right to vote, nor did it reduce the relative weight of any person's vote." Rather, it made all lobbying of the city council for gay rights legislation "futile," which did not strike the court as a problem. After all, "gays, lesbians, and bisexuals may seek relief through other political avenues or fora, such as the Ohio state legislature or the United States Congress. As the realization of their political agenda is not constitutionally guaranteed, the narrow restriction created by the Amendment upon the political avenues available to the unidentifiable and non-protected class of homosexuals and their allies respecting a narrow spectrum of substantive issues clearly does not rise to constitutional dimensions. Those who opposed Issue 3 simply lost one battle of an ongoing political dispute." The court also rejected the arguments that free speech or association rights of gay people were impermissibly burdened by the measure, or that it was unconstitutionally vague. Turning to whether the measure survived review under the "rationality" test, the court found that the measure "potentially furthered a litany of valid community interests," such as enhancing the associational liberty of Cincinnati citizens who didn't want to have to associate with homosexuals, restoring the city's official "neutrality" on the divisive issue of homosexuality, reducing "governmental regulation of social and economic conduct of Cincinnati residents," and augmenting "the degree of personal autonomy and collective popular sovereignty legally permitted concerning deeply personal choices and beliefs which are necessarily imbued with questions of individual conscience, private religious convictions, and other profoundly personal and deeply fundamental moral issues." Besides, the city would save some money by not having to enforce the sexual orientation discrimination provisions of the charter. The court vacated the district court's order on the merits as well as its award of substantial attorneys fees against the defendant city, and remanded for entry of judgment against the plaintiffs. The Cincinnati council had, in the meantime, repealed the gay rights provisions on March 8, with a former supporter having reportedly changed sides based on the referendum vote for Issue 3. Even before the court had ruled, two more national organizations informed Cincinnati officials that they had decided to take their conventions to other cities because of Issue 3 -- the Music Teachers National Association and the American Statistical Association -- and three other associations, the Ohio Psychological Association, the American Anthropological Association, and the National Gerontological Association, indicated they were considering relocating already scheduled conventions away from Cincinnati. Cincinnati Post, May 18. A.S.L. [Note: The State of Colorado's brief to the Supreme Court in Romer v. Evans is available on Westlaw at 1995 WL 251441.] LESBIAN/GAY LEGAL NEWS Rhode Island Bans Sexual Orientation Discrimination On May 22, Rhode Island Governor Lincoln C. Almond signed 95-H 6678 Sub A., a bill that amends the state's civil rights law so as to ban discrimination on the basis of sexual orientation in employment, housing, public accommodations and credit. Passage of the bill ended an eleven-year effort by the Rhode Island Alliance for Lesbian & Gay Civil Rights, and made Rhode Island the ninth state to enact a statute banning some form of sexual orientation discrimination, joining California, Connecticut, Hawaii, Massachusetts, Minnesota, New Jersey, Vermont, and Wisconsin. The bill, which passed the state Senate on May 19 in a 26-21 vote after previously winning a 57-41 vote in the state House of Representatives, was unencumbered by several unsuccessful last minute amendments that would have sharply restricted its application. Openly gay state Senator William P. Fitzpatrick, pointing to polls showing overwhelming support for the measure by Rhode Island voters, predicted that any attempt at referendum repeal would be unsuccessful. A.S.L. Louisiana Supreme Court Rejects Sodomy Law Challenge In its second time around on the case of Johnny L. Baxley, a gay man charged with "soliciting an undercover police officer with intent to engage in oral copulation for $20 in violation of La. R.S. 14:89," the Louisiana Supreme Court reversed the trial court's decision quashing the bill of information on constitutional grounds, and rejected various constitutional challenges to the statute. State v. Baxley, 1995 WL 312470 (May 23). Section 14:89(A)(1) criminalizes "unnatural carnal copulation," and section 14:89(A)(2) punishes solicitation for the same. Baxley, charged with violating (A)(2), moved to dismiss on the ground that (A)(1) was unconstitutional, and persuaded the trial judge both that (A)(1) was unconstitutional in violation of the state constitutional right of privacy and that, on this basis, the charges under (A)(2) should be dismissed. In its first Baxley opinion, 633 So.2d 142 (1994), the court held that Baxley did not have standing to challenge (A)(1), since he was not charged with engaging in "unnatural carnal copulation," and sent the case back for further proceedings. Baxley then filed a new motion to quash, this time challenging (A)(2) on a long list of constitutional grounds, and again succeeded in persuading the trial judge to quash the bill of information, on the finding that (A)(2) unconstitutionally discriminates against gay men and lesbians in violation of state equal protection, imposes an unconstitutionally excessive penalty, and constitutes an unconstitutional bill of attainder. (All constitutional claims were based on the Louisiana constitution.) The court, in an opinion by Justice Marcus, rejected all these findings. After first finding that Baxley did have standing to challenge the statute on the merits, the court found that the statute did not discriminate on the basis of sexual orientation because all anal or oral sex is prohibited, not just conduct involving persons of the same sex. Furthermore, the trial judge was not presented with any direct evidence about selective enforcement, and so decline to find on the record that the law was used selectively to entrap gay men, as Baxley had argued. Thus, the Supreme Court decided the question as a facial challenge, and, since the statute is neutral on its face, rejected the equal protection argument, noting as well that there was no evidence that the legislature intended to discriminate against gays in enacting the facially neutral statute. The punishment issue required two analyses: whether the penalties authorized for violation of 14:89 were discriminatory, and whether they were excessive. As to the first, Justice Marcus harked back to the facial neutrality argument. "Although the trial judge is correct in concluding that crime against nature convictions are punished harsher than prostitution convictions, the trial judge was incorrect in concluding that these statutes facially punish homosexuals more severely than heterosexuals. Both statutes apply to heterosexuals and homosexuals equally. They simply punish two types of conduct differently." As to the excessiveness point, the trial judge had found the maximum penalty of five years imprisonment to be grossly disproportionate to the severity of the crime, especially when compared to the 6 months authorized for a first-time prostitution conviction. The Supreme Court disagreed, pointing out that the two statutes involved different conduct. "Furthermore, the legislature may, in its discretion, deem one form of conduct more offensive to the public's morals than another, and punish that conduct more severely," insisted Marcus. "If the definition of a crime or the penalty are not reflective of current societal values, it is for the legislature, not the courts, to reflect this change. Moreover, we find it significant that La. R.S. 14:89(A)(2) imposes no mandatory minimum prison sentence or fine." Finally, the court briefly disposed of the bill of attainder argument, finding that the trial court had misconstrued the meaning of this term of art, which applies to statutes that directly impose a disability or punishment on identifiable individuals or groups. This statute imposes a restriction on the conduct of everybody, and punishment is only imposed after trial and conviction, so the definition is not met. The judgment in favor of the motion to quash was reversed, and the matter sent back for further proceedings. A.S.L. Canadian Supreme Court Rejects Partner Benefits Claim The Supreme Court of Canada ruled May 25 in Egan and Nesbit v. Canada, No. 23636, that a gay male couple who have lived together more than 40 years are ineligible for spousal benefits under a law intended to provide financial assistance to low-income elderly couples. The court was sharply split on the issue, with no one opinion winning majority support. (On the same date, the court issued its decision, also a 5-4 split, in Miron v. Trudel, No. 22744, holding that members of an unmarried heterosexual couple were covered as "spouses" under an automobile insurance contract. The dissenters in Egan were in the majority in Miron.) However, the justices of the court appeared to be unanimous in holding, for the first time on the merits, that the Canadian Charter of Rights and Freedoms bans sexual orientation discrimination by the government. Four members of the court, Chief Justice Lamer and Justices LaForest, Gonthier and Major, joined in an opinion recognizing that section 15 of the Charter prohibits unjustified governmental discrimination on the basis of sexual orientation, but finding that extending eligibility for benefits to married couples and opposite sex "common law" marriage couples while not extending it to same sex "common law" couples was not, as such, impermissible discrimination on the basis of sexual orientation. Noting that restricting eligibility to the two groups described above "necessarily excludes all sorts of other couples living together, whatever reasons these other couples may have for doing so and whatever their sexual orientation," the plurality found that Parliament could plausibly decide to further public policy supporting procreation and nurturing of children by limiting its support to heterosexual families. "It would be possible to legally define marriage to include homosexual couples," wrote the plurality, "but this would not change the biological and social realities that underlie the traditional marriage." The plurality found that "none of the couples excluded from benefits under the Act are capable of meeting the fundamental social objectives thereby sought to be promoted by Parliament. While these couples undoubtedly provide mutual support for one another, and may occasionally adopt or bring up children, this is exceptional and in no way affects the general picture." Justice Sopinka, concurring in the judgment and providing the necessary fifth vote, found that the challenged legislation infringes section 15, but is saved by section 1, which gives the government "some flexibility in extending social benefits and does not have to be proactive in recognizing new social relationships." In effect, Sopinka argued that having identified a problem (elder couples with insufficient income), Parliament had discretion to decide how fully to deal with it. Justices Cory and Iacobucci, dissenting, disagreed with the plurality's contention that this was not really sexual orientation discrimination. "Since the law challenged draws a clear distinction between opposite-sex couples and same-sex couples, this case presents a situation of direct discrimination," they argued, and "a clear denial of equal benefit of the law." Interestingly, in light of the U.S. 6th Circuit's discussion of status and conduct in the context of sexual orientation discrimination (see Equality Foundation, supra), they argued: "Sexual orientation is more than simply a `status' that an individual possesses: it is something that is demonstrated in an individual's conduct by the choice of a partner. Just as the Charter protects religious beliefs and religious practice as aspects of religious freedom, so too should it be recognized that sexual orientation encompasses aspects of `status' and `conduct' and that both should receive protection. . . The definition of `spouse' [in the challenged statute] as someone of the opposite sex reinforces the stereotype that homosexuals cannot and do not form lasting, caring, mutually supportive relationships with economic interdependence in the same manner as heterosexual couples. The appellants' relationship vividly demonstrates the error of that approach. The discriminatory impact cannot be deemed trivial when the legislation reinforces prejudicial attitudes based on such faulty stereotypes." They argued that section 1 did not save the legislation, because the purpose of the legislation, "the mitigation of poverty among `elderly households'," is not rationally advanced by excluding same-sex couples from eligibility. In separate dissenting opinions, Justices L'Heureux-Dube and McLachlin agreed with these arguments, the former at some length in an opinion focusing on the discriminatory impact of denying eligibility for the benefit, the latter in a brief reference to Miron v. Trudel, "released concurrently," mentioned at the beginning of this report. McLachlin was part of the Miron majority, holding that under the sec. 15 of the Charter "common law" marriage partners should be deemed spouses for purposes of construing an automobile insurance contract. A.S.L. Ontario Court Approves Co-Parent Adoptions; NY Court of Appeals to Hear Argument in Similar Case In a bench ruling announced May 9, followed by a lengthy written opinion on May 24, Ontario (Canada) Provincial Judge David Nevins ruled in In the Matter of the Child and Family Services Act, O.J. No. 1425, that a provision of the provincial statute governing adoption that only allows opposite-sex spouses to adopt violates the Canadian Charter of Rights and Freedoms, sec. 15. Under the statute, any adult can adopt a child, but adoption cuts off parental rights of the child's biological parents, unless the adopting parent is a "spouse" of the biological parent. "Spouse" is defined as a partner of the opposite sex; formal marriage is not required, as Ontario recognizes common law marriage and uses the term "spouse" broadly in this and many other contexts. Four lesbian couples petitioned to have the non-biological parent in each couple become an adoptive parent of their partners' biological offspring. All of the children had been conceived through alternative insemination, as planned by their co-parents, who had agreed to raise them together. While the government did not oppose the petitions, court approval was necessary, and the Attorney General provided arguments in defense of a plain meaning reading of the statute for purposes of the litigation. Judge Nevins relied on pre-Egan decisions of lower appellate courts finding that sec. 15 of the Canadian Charter of Rights and Freedoms bans sexual orientation discrimination, and found that this issue was implicated in the problem of construing the adoption statute in this case. He heard extensive expert testimony, summarized at length in the written opinion, on the qualifications of same-sex couples as parents and on the nature of their relationships. "The relationships between these applicants exhibit all the elements of a spousal relationship," he wrote, including a sexual commitment to each other, and they share a committed sexual relationship because their sexual orientation is homosexual. It is the fact of their homosexuality which gives their relationship the quality of a spousal relationship. it is, at the same time, the fact of this homosexuality, this sexual orientation, which distinguishes them from other spouses in [the adoption statute]. And it is solely because of this personal characteristic that they are prohibited from applying for the adoption of a child. This is, in my view, a denial of one of the protected rights under section 15 [of the Charter]." Turning to the question whether the discrimination is justified, Nevins found no rational basis for it, especially in light of the fact that single gay people may adopt under the Ontario statute: "If I accept, as I must from the evidence before me, that a stable, secure and caring family environment is in a child's best interests, and is in fact the most significant and beneficial component in the healthy development of a child, and further that the paramount objective of the legislation is to promote the best interests of children primarily within the context of the family, then I must also accept from the evidence before me that there is no rational connection whatsoever between the goals of this legislation and a provision in that legislation which contains an absolute prohibition against adoption by homosexual couples. For there to be a rational connection between a provision that says homosexual couples may never apply to adopt, there would have to be evidence that homosexual couples could never provide a stable, secure and caring environment for a child. But there is no evidence at all to support such a proposition. On the contrary, there is no cogent evidence that homosexual couples are unable to provide the very type of family environment that the legislation attempts to foster, protect and encourage, at least to the same extent as `traditional' families, parented by heterosexual couples." (Para. 101). Further, "When one reflects on the seemingly limitless parade of neglected, abandoned and abused children who appear before our courts in protection cases daily, all of whom have been in the care of heterosexual parents in a `traditional' family structure, the suggestion that it might not ever be in the best interests of these children to be raised by loving, caring and committed parents, who might happen to be lesbian or gay, is nothing short of ludicrous," Nevins exclaimed. (Para. 105). Nevins granted the adoption petitions, finding that all four couples were qualified. Meanwhile, the New York Court of Appeals has granted expedited review in Matter of Dana, 624 N.Y.S.2d 634 (App.Div., 2nd Dept., April 3), in which the Appellate Division affirmed an order dismissing a lesbian co-parent adoption petition. According to the short appellate decision, the adoption petition could not be granted because that would require terminating the petitioner's partner's parental rights, since petitioner was not the legal spouse of her lesbian partner. Appellate courts in the U.S. are seriously split on the question whether same-sex co-parent adoption may be granted. The N.Y. Court of Appeals had already granted review in Matter of Jacob, a case denying an adoption petition brought by the non-marital opposite-sex partner of the prospective adoptive child's mother, and has decided to hear both cases together on June 5. Lambda Legal Defense Fund Legal Director Beatrice Dohrn will argue the appeal on behalf of G.M., the petitioner-appellant. N.Y. Law Journal, May 11, p.1. A.S.L. Oklahoma Sodomy Challenge Pending The Oklahoma Court of Criminal Appeals, the state's highest court for criminal cases, is considering a constitutional challenge to an Oklahoma City ordinance that was used to convict a gay man for soliciting a plainclothes police officer for sex in a city park. Sawatzky v. City of Oklahoma City, No. M-94-1309. Kenneth Sawatzky was arrested on July 6, 1994, and charged with violation of Oklahoma City Municipal Code sections 30-151 and 30-152, a lewdness statute that prohibits engaging in or offering to engage in acts of prostitution or lewdness, lewdness being defined as "the giving or receiving of the body for indiscriminate sexual intercourse, fellatio, cunnilingus, masturbation, anal intercourse, or lascivious, lustful or licentious conduct with any person not his or her spouse. . ." According to Sawatzky's version of what happened, he was walking in the park, struck up a conversation with a stranger that led him to believe the stranger might be interested in sex, and, after he responded to the stranger's question by indicating that he enjoyed oral sex, was arrested by the stranger, who showed him his police badge. On September 1, the trial court denied without discussion Sawatzky's motion to dismiss the charges on constitutional grounds. Sawatzky argued that by penalizing an inoffensive solicitation to engage in oral sex in private, the statute violated the right of privacy under the Oklahoma constitution, the federal and state equal protection rights, and the guarantee against establishment of religion. Sawatzky was convicted at a jury trial on November 14, and on December 1 the trial court entered a judgment fining him $250. On appeal, Sawatzky's attorney, Mark Henricksen of El Reno, Oklahoma, contends, inter alia, that the state privacy right, which was used in Post v. State, 715 P.2d 1105 (Okl. Cr.), cert. denied, 479 U.S. 890 (1986) to invalidate application of the state's sodomy law to consenting heterosexuals, should be used to invalidate this application of the city ordinance, arguing as well that equal protection principles require allowing same-sex couples to engage in conduct permitted for married opposite-sex couples. A.S.L. Texas Appeals Court: Mother Not Liable for Son's Participation in Gay-Bashing Murder The Texas Court of Appeals in Houston ruled May 25 that Mary Anne Spencer, the mother of Brian Douglas Spake, was not liable to Nancy Rodriguez, the mother of Paul Broussard, for Brian's part in the gay-bashing murder of Broussard. Rodriguez v. Spencer, 1995 WL 315533. Broussard was beaten and stabbed to death in the early morning hours of July 4, 1991, by a group of four adults and five minors, including Brian, then age 17. Rodriguez sued all the perpetrators, and, in the case of minors, their parents. The parents moved to dismiss, and the court granted their motion. Rodriguez appealed the dismissal of the action against Brian's mother. In an opinion by Justice Taft, the court found based on the deposition testimony of Spencer that there was no basis for finding a breach of common law duty of parental supervision, and also readily dismissed Rodriguez's arguments that various statutes might create such a duty. Most of the opinion concerns the common law analysis. Parents do have certain duties in tort law with regard to torts committed by their minor children, but the court refused to impose strict liability, and found that Spencer had no basis for foreseeing the possibility that Brian would have participated in this action. Based on her deposition, the court found that she had imposed reasonable restraints on Brian, including telling him not to associate with another youth to whom she objected (and who was one of the co-perpetrators of the gay-bashing). "We find that Spencer established that her knowledge, consent, sanction and participation in her son's activities gave rise to no reason for her to know, or even suspect, that her son might become involved in conduct such as the heinous crime committed against Paul Broussard. While the magnitude of the crime committed by her son demonstrates that there was an actual risk of injury to others, Rodriguez presented no fact or circumstance reasonably raising the foreseeability of such behavior by Spencer's son toward others." The court concluded that summary judgment was properly granted dismissing Rodriguez's claim against Spencer. A.S.L. D.C. Superior Court: Lesbian Couple May Petition for Joint Adoption The D.C. Superior Court has overturned an order stating that two unmarried individuals could not file a joint petition to adopt, regardless of the best interests of the child. In so doing, Judge Hedge has cleared the way for the petitioners, D.S. and R.M., a lesbian couple, to adopt jointly a foster child who has been living with them for the past three years. In the Matter of the Petition of D.S. & R.M., For the Adoption of a Minor Child, D.C.Super.Ct., Family Div., Adoption No. A-8-94, 5/4/95. The petitioners had been in a committed relationship for over eight years. The child, K.S., had been living with them since November 1992. When the couple filed a petition to adopt jointly K.S., the court ordered sua sponte that they amend their petition naming one or the other, but not both, as petitioner. The basis for the order was In re Bruce M. & Mark D., 122 Wash. D.L. Rptr. 109 (D.C.Super.Ct., May 25, 1994), a case which held that two unmarried individuals could not file a joint petition to adopt, regardless of the best interests of the child. That case is currently on appeal. D.S. and R.M came before a different judge of the court on this motion to reconsider. They argued that the adoption statute ensures that the best interests of the child are met and that any statutory construction analysis must be governed by that concept. And further, that the plain statutory language does not preclude joint adoption by unmarried individuals. Petitioners stated that the court should not look to Bruce M., but to other cases which held that two unmarried persons in such situations could adopt jointly. The court agreed with the petitioners. In analyzing the adoption statute, the court found it implies that two persons may adopt. The statute states: "Any person may petition the court for a decree of adoption." In the eyes of the court, "Any person," under the D.C. Code, may mean two persons because "words importing the singular number shall be held to include the plural." Further, the court found that the statute contemplated that two may adopt, as it states: "[i]f more than one petitioner joins in a petition, the requirements of this section apply to each." Thus the court found that the plain language of the statute permitted the petition in this case. Considering the historical perspective of the adoption statute, the court noted that it was highly unlikely that the framers envisioned gay or lesbian couples filing joint petitions to adopt. However, when the issue is narrowed as to whether two unmarried people can file a joint petition, sexual orientation, to the extent relevant, "is to be considered under the factors of D.C. Code  16-309, which address the fitness of those seeking to adopt and the best interests of the child." It further found that the legislative history suggested that the statute was meant to be broad, or "elastic," to meet changing circumstances. "It is well settled that the object of a statute may be so general and its language so broad as to reach conditions fairly coming within its intent and sweep although such conditions did not come into existence until years after its enactment." The court found that two conditions must be met under the adoption law in order for the adoption to go through: (1) The petitioner must be fit; and (2) the adoption must be in the child's best interests. The court focused on the second condition, finding that the petitioners had demonstrated that it would be in K.S.'s best interests that the petition be joint. K.S. was born in 1988 as a "special needs child," exposed to cocaine and alcohol in utero, and he was removed from his biological mother's custody when he was thirteen months old following his hospitalization for cocaine and PCP ingestion. Thus, when K.S. moved in with the petitioners in 1992, he had special medical, educational and psychological needs. The court found that the petitioners have diligently been meeting those needs. It went on to note that K.S. is in a very unique psychological situation, as he has fears of being abandoned and difficulties with trust. Psychiatrists had stated in affidavits that K.S. is very attached to both parents, and the petitioners are his "psychological" parents. The court found that it is very important to K.S.'s emotional health that both petitioners become his legal parents, and that there be no disruption in this relationship so that K.S. "can continue to develop trust in relationships and learn that not everyone in his life will abandon him." The court then considered that if the joint petition was not granted, K.S.'s stability would be jeopardized. For instance, if only one psychological parent was allowed to adopt, and then that parent died, a number of adverse consequences could affect K.S. As the second "parent" tried to secure legal adoption, having to reconvene the whole adoption process could cause K.S. distress and fear of instability, a situation which in his present condition, the court believes it must avoid. It also considered other legal benefits that only adoption could provide: Social Security, health and employment; inheritance rights; and torts rights, should the non-adoptive parent be involved in an accident. Thus the court held that in order to best protect K.S., emotionally, financially, medically and physically, both psychological parents should be allowed to petition for adoption jointly. P.T. D.C. Superior Court Holds Domestic Partner Is "Next of Kin" Under Wrongful Death Act Victoria Lane died on August 23, 1993, "as a result of injuries sustained when a tree branch broke through the windshield of the car which she was driving." Riding with her as passengers were the two adopted daughters she was co-parenting with her domestic partner of sixteen years, Laura J. Solomon. In 1983, Lane and Solomon had celebrated a commitment ceremony. Solomon filed a claim on behalf of herself and the daughters under the District of Columbia's Wrongful Death Act, alleging that negligent maintenance by the District was responsible for her partner's death and that she was entitled to sue as "next of kin" within the meaning of the statute. The District moved to dismiss Solomon as a plaintiff from the case, arguing that the Wrongful Death Act only conferred a cause of action on spouses and next of kin and that she was neither. In Solomon v. District of Columbia 21 Fam. L. Rep. (BNA) 1316 (D.C.Super.Ct., April 26), Judge Dorsey denied the District's motion for partial summary judgment, finding that Solomon was next of kin. "The facts clearly indicate that Ms. Solomon enjoyed the support and assistance of Ms. Lane in the non-standard family unit Judge Alprin recognized in the adoption proceeding [when the daughters, one of whom was the biological offspring of Lane, were adopted by Solomon and Lane jointly]. Both Ms. Lane and Ms. Solomon were considered the parents of Maya and Tessa Solomon-Lane. Both were responsible for taking care of and supporting these children. Due to Ms. Lane's untimely demise, Ms. Solomon no longer receives Ms. Lane's assistance in raising the two children. . . It is clear that the two children are eligible to receive remedy pursuant to the Wrongful Death Act because they relied on her for support and maintenance. Since Ms. Solomon also relied on her for support and maintenance, logic dictates that she is also entitled to remedies under the Wrongful Death Act." But the relationship through the children was not the sole factor in finding Solomon to be next of kin to Lane. "The relationship between Ms. Solomon and Ms. Lane contained all the attributes of a married couple but for the fact that it is a same sex union that cannot be recognized with a marriage license. Although they were barred from being considered legal spouses, this close relationship, coupled with the fact that they were both legally recognized parents of the same two children leads the Court to conclude that Ms. Solomon is the next of kin of Ms. Lane." However, the court refused to grant summary judgment in favor of Solomon, holding that the issue of damages required jury consideration as a material issue of fact. A.S.L. Texas Appellate Court Upholds Exclusion of Gay Porn in Murder Trial A trial court's decision not to admit photographs of male homosexual pornography kept by a stabbing victim into evidence was proper, ruled the Texas Court of Appeals on May 4, because they "did not influence any fact of consequence" in the case. Writing in Senig v. Texas, 1995 WL 258925 (Tex. App., 1st Dist.), a three-member panel held that the defendant's attempt to introduce a photograph of pornography stored in the victim's dresser was, at best, a diversionary tactic designed to cast doubt on the character of the dead man. Richard Clayton Senig lived with Kenneth Morrissey in Houston. On September 8, 1990, Senig and an associate stabbed Morrissey 34 times. They then took his clothes, jewelry and car, and fled the country. On his return to the U.S., Senig was arrested and charged with aggravated robbery and murder. Senig was tried on the aggravated robbery count, found guilty, and sentenced to 85 years in prison and a $5,000 fine. During the trial, Senig attempted to introduce a photograph of Morrissey's dresser drawer containing pictures of nude men. After the judge refused to admit the photograph into evidence, Senig's counsel made an offer of proof, stating that it was relevant because she believed Morrissey had been involved in taking photographs of nude males. On appeal, Senig argued that when the prosecutor offered evidence and made statements regarding Morrissey's "gentle nature," the character of the victim was then at issue. "Senig argues, therefore, that he should have been allowed to show the jury other `pertinent' character traits of [Morrissey] to offset the evidence offered by and comments made by the prosecutor, noted the court." In rejecting this argument, the appellate panel stated, "Other than defense counsel's `belief' that [Morrissey] was involved in taking pornographic photographs, the appellant does not point to anything in the record showing that [Morrissey] was involved in taking the photographs depicted in the exhibit. . . . More importantly, we fail to see how this fact would have been relevant" to Senig's conviction for aggravated robbery, noted the court. The presence of pornography at the scene "did not provide a greater understanding of the context and circumstances of the aggravated robbery" nor did it "make it more or less probable that the appellant committed or did not commit the aggravated robbery." Senig also failed to show that Morrissey's "gentle character was of consequence to the ultimate determination of his guilt or innocence," noted the court. "He does not argue that the pornography depicted in the exhibit was violent or somehow showed [Morrissey] to be a violent person." Senig did put forth any argument of self defense, and the charge did not include a self-defense issue. M.N.S. Ohio Court of Appeals Rejects Constitutional Challenge to Statute Banning "Importuning" For Homosexual Sex In State v. Gilroy>, 1995 WL 243440 (April 26), the Ohio Court of Appeals rejected a challenge to a conviction for importuning. According to the opinion, the male defendant was driving the 13-year-old male complainant when they stopped on the side of the road. Gilroy asked the complainant, Mitchell, if he wanted sex and touched his thigh. Mitchell then fled the car. The relevant statute makes it a crime to "solicit a person of the same sex to engage in sexual activity . . . when . . . such solicitation is offensive to the other person or is reckless in that regard." The defendant assailed the conviction on four grounds: 1) that the statute was unconstitutionally overbroad; 2) that the verdict was against the weight of the evidence; 3) that the verdict was legally insufficient; and, 4) that the trial court erred in precluding the use of the complainant's juvenile record. The court held that the statute was not overly broad when the defendant knows that the solicitation is offensive or when it would "likely . . . provoke the average person to an immediate breach of the peace." As to the legal and factual sufficiency challenges, the court held that the evidence was of sufficient quantity and quality to establish the elements of the statute: the defendant made a sexual solicitation; both parties were male; and the complainant was offended by the defendant's advances. The court noted "[s]uch suggestion and touching might well have provoked another person to a violent physical reaction in breach of the peace instead of the escape chosen by Mitchell." The court rejected Gilroy's claim that the trial court erred in not permitting him to cross-examine the complainant about his prior juvenile record. Under Ohio evidence rules, the use of a prior juvenile record must be directed at a specific issue in the case and not to generally impeaching the witness. The defendant's proffer was directed only at general impeachment. M.S.R. Employee Claims Anti-Heterosexual Discrimination A New Jersey woman has sued her former employer claiming that she was harassed and ultimately fired because she was heterosexual, married, and pregnant. Coraggio v. Time Inc. Magazine Company, 1995 WL 242047 (S.D.N.Y. April 26). The plaintiff worked for the defendant in New York for 15 years, attaining a senior position in the advertising department. She claimed that she was one of only three married employees in the ten-person department, and that, of the other two, one was fired for poor job performance and the other had a lesbian sister who was a close friend of the plaintiff's lesbian supervisor. The plaintiff alleged that her supervisor harassed her by assigning her tasks normally performed by lower-level employees, complained that she was not working enough, and generally ignoring her. The plaintiff further claimed that her unmarried, childless department manager tacitly approved of the harassment, adding injury to insult by freezing her salary and ultimately eliminating her job. The plaintiff argued that her job functions were re-assigned to the employee who had replaced her during her maternity leave, and that the "job elimination" was a pretext to dismiss her because of her sexual orientation, marital status, and pregnancy. The plaintiff filed suit in the District of New Jersey, her home state, claiming violations of Title VII, the New Jersey Law Against Discrimination, and the New York State Human Rights Law. She also alleged breach of contract and implied promise (based on the employer's failure to follow its official termination policies), and intentional infliction of emotional distress. The case was transferred to the Southern District of New York and assigned to Judge Mukasey, who held that New York law applied (thus effectively dismissing the New Jersey discrimination claim), because the acts allegedly occurred in New York City. Ruling on the employer's motion, the court dismissed most of the claims in the complaint. First, the court dismissed all claims against the employer's parent corporation, Time Warner, ruling that the complaint failed to allege parental control with sufficient particularity; the court invited the plaintiff to file an amended complaint if such facts could be alleged. The court next ruled that the contract claim failed to allege facts sufficient to overcome New York's presumption that employment is terminable at will, and dismissed the implied promise claims, because they depended on the contract claim. The court also dismissed the intentional infliction of emotional distress claim, ruling that the alleged conduct failed to reach the requisite level of outrageousness. Finally, the court ruled that Title VII allows the plaintiff to name the alleged individual perpetrators as defendants in their official rather than personal capacities for purposes of discovery and public accountability, but that monetary liability is available only against the employer. Thus, without any discussion of the merits, the court refused to dismiss the Title VII claim on the merits. While New Jersey's Law against discrimination prohibits employment discrimination based on sexual orientation, neither Title VII nor the New York State Human Rights Law covers sexual orientation, so the decision to apply New York law instead of New Jersey law may have obviated the sexual orientation claim. The opinion does not mention New York City's Human Rights Law, which does prohibit discrimination based on sexual orientation. Perhaps an amendment to the complaint by the plaintiff is in order. O.R.D. Florida Appeals Court Denies Co-Parent Visitation Claim According to a Florida court, the non-birth mother of a child born to a lesbian couple does not have visitation rights with the child after the lesbian relationship ends. Music v. Rachford, 1995 WL 264108 (Fla.Dist.Ct.App., 1st Dist., May 9). Brenda Music and Tara Sue Rachford were involved in a lesbian relationship from 1989 until 1993. During the relationship, Music and Rachford decided to raise a child together. Rachford was artificially inseminated and subsequently gave birth to a child. The child was given Music's surname. In 1993, the relationship between Music and Rachford ended and Rachford terminated Music's access to the child. Music sued, arguing that she was a de facto parent and entitled to visitation rights under Florida law. Relying on Meeks v. Garner, 598 So.2d 261 (Fla.Dist.Ct.App., 1st Dist., 1992), the court found that it had no authority to compel visitation between a child and one who is "neither a parent, grandparent or great-grandparent." T.V.L. Federal Court Upholds Title VII Same-Sex Harassment Claim; Jury Awards Substantial Damages U.S. District Court Judge Wiseman (M.D. Tenn.) ruled May 4 that same-sex sexual harassment constitutes sexual harassment prohibited by Title VII. EEOC v. Walden Book Company, 1995 WL 262893. Readers of the Law Notes' May issue will recall that in March and April three other federal district courts reached the same conclusion, while a fourth followed 5th Circuit precedent to the contrary. Noting that the question was one of first impression in the Sixth Circuit, Wiseman considered several cases from other jurisdictions. The opinion starts with case law finding a Title VII violation where an employee is terminated for refusing homosexual advances, noting that "the legal problem is the same for male on male sexual discrimination as for male on female sexual discrimination; that is, but for his sex, the employee would not have faced sex discrimination." Analyzing the cases that had declined to apply this reasoning to same-sex sexual harassment cases, the court found an argument that sexual harassment is actionable only when it creates a hostile work atmosphere, which, for purposes of Title VII, is "an atmosphere of oppression by a `dominant' gender. . . an anti-male [or anti-female] environment in the workplace;" where the parties are of the same gender, the issue is "more a matter of sexual orientation than sexual discrimination." The court rejected this argument, however, as contrary to the language of Title VII and the Supreme Court's decision in its first heterosexual harassment case, Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). Observing that no sex discrimination opinion had ever stated a requirement that the plaintiff prove the decision-maker was not of the same gender, the court concluded that applying a different-sex requirement to sexual harassment cases "would be illogical because [when] a homosexual supervisor is making offensive sexual advances to a subordinate of the same sex, and not doing so to employees of the opposite sex, it is absolutely a situation where, but for the subordinate's sex, he would not be subjected to that treatment." The court thus found same-sex sexual harassment actionable under Title VII, at least where a supervisor harasses employees of only one sex. O.R.D. * * * Subsequent to this ruling, a jury trial was held. Finding a violation of Title VII, the jury awarded $1.6 million in punitive damages and $75,000 in compensatory damages. A spokesperson for Waldenbooks announced that the verdict would be appealed. BNA Daily Labor Report No. 98, 5/22/95, A-11; Seattle Times, May 19. The BNA Daily Labor Report, May 9, p. A-5, reported that U.S. District Judge J. Phil Gilbert, S.D. Ill., denied a motion for summary judgment by Catholic Shrine Pilgrimage Inc., in a same-sex harassment claim brought by William Boyd. Boyd v. Vonnahmen, No. 93-cv-4358-JPG (March 29). Boyd claimed that his supervisor, a Roman Catholic priest named Robert J. Vonnahmen, had created a hostile environment by subjecting Boyd to severe and pervasive harassment and a coercive sexual relationship. Rejecting the defendants' claim that any sexual activities were consensual and thus not actionable under Title VII, Gilbert relied on the Supreme Court's 1986 decision in Meritor Savings Bank v. Vinson, in which the court held the issue wasn't whether the sex was consensual, but rather whether the supervisor's sexual advances were "unwelcome." As to that issue, held Gilbert, a trial is needed since unwelcomeness is an issue of material fact that is controverted in the case. A.S.L. California Supreme Court to Review Decision on Anti-Gay Police Actions On May 11, the California Supreme Court announced it would review the decision in Baluyut v. Superior Court for Santa Clara County, 31 Cal.App.4th 1334, 37 Cal. Rptr.2d 741 (6th Dist., Jan. 30), in which the court of appeal dismissed charges against two gay men arrested in a police sting near an adult bookstore. The court of appeal found an equal protection violation, concluding that the police sting operation was motivated by homophobia rather than legitimate law enforcement concerns. On appeal, the main issue will be whether enforcement statistics presented in the case are a sufficient basis to show intentional discrimination by the police, as required for an equal protection based case. A.S.L. Federal Court Dismisses Defamation Action Against Prison Officials by Prisoner District Judge Rogers (D. Kans.) has dismissed an action against various officials at the U.S. Penitentiary at Leavenworth, Kansas, brought by inmate Thomas E. Little, Jr., asserting various tort and constitutional claims founded on statements the defendants were alleged to have made about Little to an author who was writing a book about life in the prison. Little v. Matthews, 1995 WL 261858 (April 21). The author, Peter Earley, had unrestricted access to prisoners and staff for two years prior to publication of his book, The Hot House: Life Inside Leavenworth Prison (1992), which described the relationship between the plaintiff and another inmate as being widely perceived by staff and other inmates as a "homosexual union." Little now claims that these statements about him were defamatory and placed his life in danger. The court found lack of jurisdiction to consider the tort claims. As to an 8th Amendment claim that "defendants exposed him to danger by their remarks to Earley," the court found insufficient support in the factual allegations, given the Supreme Court's recent holding in Farmer v. Brennan, 114 S.Ct. 1970 (1994), with respect to the "deliberate indifference" standard. "The facts here do not support a finding of deliberate indifference," wrote Rogers. "The link between any remarks made to Earley by defendants and subsequent danger to plaintiff is simply too tenuous to establish the defendants should have been aware of a significant risk to plaintiff's safety or of a need to take action to avert this risk." The opinion gives no indication that Little has actually suffered any harm at the hands of inmates or staff as a result of the publication of the book. He had declined Earley's offer to be depicted under a pseudonym. A.S.L. NY Court Dismisses Defamation Action By Protester Against Gay Pride Mass Paul J. Morrissey, the director of the self-styled "Morality Action Committee," led his followers to St. Paul the Apostle Roman Catholic Church in New York City on June 23, 1993, intended to protest against the holding of a gay and lesbian pride day mass by Father Harris. The resulting fracas and arrest of Morrissey were reported in Catholic New York, a newspaper published by the Archdiocese of New York. Morrissey believed that the report incorrectly labelled him a bigot and misrepresented the actions and motivations of his group, and sued the newspaper for defamation. In Morrissey v. Ecclesiastical Communications Corp., NYLJ, May 25, 1995, p. 31, col. 1 (N.Y. Supreme Ct., N.Y. County), Justice Crane granted the defendant's motion to dismiss the complaint. Crane's opinion provides a colorful narrative of the events in question, and concludes that the newspaper articles consisted of straightforward factual reporting that appeared accurate, especially when compared to a videotape about the event made by Morrissey's own group. Crane also found protected as clearly an expression of the writer's opinion a letter to the editor published in the newspaper that was challenged by Morrissey. A.S.L. Legislative Notes The state of Nevada has amended its death penalty statute to expand the list of aggravated circumstances under which a death penalty may be imposed for murder. Effective October 1, Nev. R.S. 200.033, sec. 1, will have a new item 11, authorizing consideration of the death penalty if "the murder was committed upon a person because of the actual or perceived race, color, religion, national origin or sexual orientation of that person." An existing hate crime statute authorizes increasing penalties from misdemeanors to gross misdemeanors based on the same categories; more expansive hate crime legislation is pending. The death penalty amendment was signed into law on May 23 by Governor Miller. City commissioners in Lawrence, Kansas, voted 3-2 on May 1 to give final approval to an ordinance that adds "sexual orientation" to the city's human rights ordinance. Washington Blade, May 12. Lawrence is the first jurisdiction in Kansas to pass such a measure. Hillsborough County, Florida, commissioners voted May 17 to repeal the ban on sexual orientation discrimination contained in the county's human rights ordinance. This was only the second legislative repeal of such an ordinance that could be remembered by most observers, following the Cincinnati repeal on March 8. A change in composition of the commission with the addition of two conservative members at the last election led to the vote, which was also influenced by the continued repeal referendum activity in Tampa, which is in the county. A.S.L. Domestic Partnership Notes Newly reported domestic partnership policies: William Morris Agency, health benefits for both same-sex and oppose-sex unmarried partners; Occidental College, Los Angeles, will add health and dental benefits to existing "soft" benefits (i.e., library access, tuition credits); Chapel Hill, North Carolina, went the next step and voted to grant health benefits to partners of city employees; BARRA Inc., a financial software firm in Berkeley, CA, has extended medical benefits to same-sex partners of employees; Replacements Ltd., a Greensboro, North Carolina, company of about 350 employees which supplies obsolete and discontinued china, crystal, flatware and collectibles has extended all of its insurance benefits programs to cover both same and opposite sex domestic partners of employees; The Sierra Club announced that both same and opposite sex partners of employees could qualify for insurance benefits on the same basis as spouses (Washington Blade, May 12). Unions representing New York State employees have secured agreement from the Pataki administration to continue domestic partnership benefits plans that were negotiated with the Cuomo administration last year, according to reports posted to the Internet's Queerlaw listserver in mid-May. However, the prerequisites for coverage have been modified, extending to one year the period of joint residency required to qualify for benefits. Law firms in New York City now reported to have domestic partnership benefits plans or to currently intend to adopt them include White & Case, Debevoise Plimpton, Paul Weiss Rifkind, Schulte Roth, Skadden Arps, Milbank Tweed, Wachtell Lipton, Sullivan & Cromwell, Fried Frank, and Morrison & Forster. Harvard Community Health Plan, a major HMO in the Boston metropolitan area, has announced that it will make domestic partner health insurance available to all groups and to individual purchasers. The announcement was made by a representative of the company at a Greater Boston Business Council awards ceremony recognizing gay-friendly businesses. (GBBC is the gay chamber of commerce of Boston.) A.S.L. Law & Society Notes The New York Times reported May 7 that New York City officials took action against a fourth business, the Mayfair Theater in Queens, that was alleged to have allowed gay men to have "high risk" sex on the premises. A temporary closure order was granted by New York Supreme Court Justice Arthur W. Lonschein of State Supreme Court. Meanwhile, an agreement was reached in Washington, D.C., between the Department of Consumer and Regulatory Affairs and operators of The Crew Club, under which the club may continue to operate but must require patrons to sign a pledge not to engage in sexual activity on the premises and post large signs strictly prohibiting such activity. The club also undertakes to enforce the rule. Washington Post, May 5. * * * The NYC Giuliani Administration and the City Council leadership have reportedly agreed on amendments to the city's zoning laws that would have the effect of removing "adult" businesses from all but a few restricted areas of the city. Using proximity to churches, schools and residential areas as the main factors in determining where adult businesses may operate, the zoning proposals would probably remove sexually-oriented businesses from the heart of the traditional gay community area along Christopher Street in Greenwich Village, and might even threaten gay bookstores that are located in residential areas of the Village and Chelsea. Apparently seeking to clear the dockets of cases brought under former anti-gay policies, the federal government has offered a settlement to Dusty Pruitt, a lesbian Army reservist who was involuntarily discharged in 1986 after the Army learned about her sexual orientation through a newspaper article. In Pruitt's case, the 9th Circuit ultimately ruled that the Army would have to provide some real evidence to back up the rationale for excluding a top performing officer like Pruitt, and the case had been remanded for trial. Under the settlement offer, Pruitt would be "retired" with the rank of major, and would be entitled to receive full retirement and medical benefits when she reaches 60 years of age. The settlement would also credit her with "service points" used to calculate these benefits for the period from 1983 to 1991. Associated Press reports about the settlement offer appeared in many newspapers on May 20. On May 20, a Leon County, Florida, jury unanimously acquitted Charles Mitchell, owner of an adult video store, on charges of obscenity for renting and selling sexually explicit gay sex tapes. Miami Herald, May 20. The defense attorney showed the jury selections from "mainstream" movies such as The Accused, Raging Bull, and Rocky IV, to demonstrate that such movies had segments that were more "offensive" to community standards (one of the constitutional elements of the obscenity test under the 1st Amendment) than the sex tapes. Several jurors told a reporter after the verdict was announced that the state was wasting time and taxpayer dollars in going after video store owners on obscenity charges. Taking the next step beyond a 1993 Massachusetts Supreme Judicial Court ruling that allowed a joint adoption by a lesbian couple of the biological child of one of the women, the Suffolk County, Massachusetts, Probate & Family Court has approved a joint adoption of a child who was unrelated to the lesbian petitioners, Angela Giudice and Nia-Sue Mitchum of Roxbury, according to a press release by their attorney, Joyce Kauffman, of Triantafillou & Guerin, a Cambridge law firm. Craig McDaniel, the first openly gay member of the Dallas, Texas, City Council, won reelection to a second term on May 6, receiving 62.7 percent of the vote. A Cook County, Illinois, Commission on Human Rights Hearing Officer ruled May 4 that William Wolfe, owner of the Sidelines Sports Bar in Harwood Heights, violated the county human rights ordinance by calling police to arrest four men because they danced together in the bar. The four men, all members of Queer Nation, were represented by Lambda Legal Defense Fund in pursuing their claim, the first sexual orientation complaint to be adjudicated under the county ordinance, which took effect in 1993. Chicago Tribune, May 5. In a long-running custody dispute in Buffalo, New York, involving a lesbian co-parent who was suspected by police of having murdered her former partner, the contending parties (the co-parent and the children's grandmother) reached a settlement May 10. The children will reside with their grandmother during the school year, but the co-parent, Pamela Henessey, will have visitation on alternate weekends and Wednesdays, holidays, and during summer vacation. San Francisco Sentinel, May 17. A.S.L. International Notes Britain's High Court heard arguments May 15 on whether the British military ban on service by gays violates European community human rights laws. Washington Blade, May 19. A spokesperson for the British Labor Party announced on April 25 that if the party takes over the government after the next general election, the military service ban will be lifted. A.S.L. Professional Notes The Honorable Jason Worth, a New York City Housing Court Judge and long-time member of LeGaL and its predecessor organizations, died from AIDS on May 16. Prior to his judicial service, Judge Worth had been a law secretary for various New York city judges and practiced law for several years. As a law secretary, he worked on important trial level decisions concerning tenant succession rights, and played an active role in the movement for recognition of same-sex partners in rental housing. Lambda Legal Defense & Education Fund has announced the hiring of David Buckel, Esq., to be a staff attorney in its New York office. N.Y. Attorney General Dennis Vacco has suddenly become a controversial law school commencement speaker as a result of his action revoking protections against discrimination for gay and lesbian staff members of the state's Law Department. After student protests at Pace University Law School, he withdrew as commencement speaker, and the NY Law Journal reported May 11 that students at the State University of New York at Buffalo Law School were planning a protest against Vacco at their commencement. Vacco is an alumnus of SUNY-Buffalo Law School. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS Alaska Supreme Court Upholds Some Tort Claims Against Physician for Faulty Diagnosis of HIV Status In a case raising several important questions of tort law, the Alaska Supreme Court unanimously held, in Chizmar v. Mackie, that a physician's erroneously informing a patient that she had AIDS supported a claim for negligent infliction of emotional distress, even though the patient suffered no physical injury, which was required under the traditional formulation of the tort. 1995 WL 246448 (April 28). The court also addressed claims for the physician's breach of the patient's right to confidentiality (based on the physician's having informed the patient's husband of the patient's supposed AIDS); the loss of the patient's consortium by the patient's children; damages for injury to the patient's marital relationship, allegedly leading to divorce; and punitive damages. The patient, a married woman, was hospitalized under the physician's care for pneumonia and gastritis. The physician ordered an ELISA screen for the patient without telling her. When the test result came back as "repeatedly reactive," the physician, believing that this was a positive result about which the patient should be told quickly, and that the patient's husband was the proper person to "break the news" to her, informed the husband, rather than the patient, that the patient had "tested positive for AIDS." In fact, the patient did not have AIDS, and three weeks later the patient discovered a "false positive HIV test" notation in her medical record. A retest was negative. The court first considered the physician's potential liability, under a theory of intentional infliction of emotional distress, for his erroneous statement that the patient had AIDS. Rejecting the requirement of physical injury in such claims, the court declared that the rule, originally imposed as a mechanism to screen out trivial or feigned claims, was, in practice, both underinclusive (in precluding legitimate claims presenting no physical injury) and overinclusive (in permitting recovery for claims presenting only trivial physical injury). Considering alternatives, the court declined to embrace a pure foreseeability approach, believing that such an approach would define the scope of the tort too broadly. The best view, the court held, was that physical injury need not be established where the plaintiff and the defendant stood in a contractual or fiduciary relationship whose nature imposed on the defendant a duty to refrain from conduct that would foreseeably cause the plaintiff emotional harm. The court suggested, as examples of such relationships, a contract to marry, conduct a funeral, sell a sealed casket, conduct a caesarean birth, surgically rebuild a nose, provide insurance coverage of maternity expenses, or keep a daughter informed of her mother's health. The court stressed that (1) recovery was possible only where the plaintiff suffered "severe" or "serious" emotional distress, although distress was not required to be "medically diagnosable or objectifiable," and that (2) bystander status remained a distinct theory of recovery. Since, the court held, the physician owed the patient here a duty as a matter of law, and the existence of serious emotional harm was an unresolved question of fact, the patient was entitled to present her case to the jury. Considering the extent of the patient's damages, and acknowledging that any injury was limited to the interval of time in which the patient's belief that she had AIDS was reasonable, the court nonetheless recognized that, during that interval, the patient could have sustained injury having long-term emotional consequences, that is, consequences felt by the patient long after the end of the interval. The court further held that the patient's two minor children stated a supportable claim against the physician for loss of their mother's consortium. This claim was predicated on the physician's negligence in misinforming the patient concerning her supposed AIDS, as the court considered the claim under the rubric of an action for loss of parental consortium resulting from injuries tortiously inflicted on a parent by a third party. The children offered evidence that the patient was so distraught from the AIDS diagnosis that she could no longer function effectively as the children's mother. Certain claims were unsuccessful. Thus, turning to the question of the physician's potential liability for breach of his duty of confidentiality, the court affirmed the existence of such a duty, while holding that emotional distress damages were recoverable for a breach. However, observing that a physician was under a duty to use reasonable care to protect third parties from foreseeable exposure to contagious disease, the court held that, as a matter of law, a physician's disclosure to a patient's spouse that the spouse had a fatal, sexually transmitted disease such as AIDS, was privileged. The court affirmed the trial court determination that the patient could not recover damages for injury to her marital relationship. This was, the court said, for reasons both of public policy (in that establishing an injury would necessarily open a very private relationship to public scrutiny) and failure of proof of causation (in that it was difficult to differentiate the effects of a third party's tortious behavior from other possible causes of marital discord). The patient claimed that, after the physician's communication to the husband of the supposed test result, the plaintiff and her husband experienced a severe escalation of what had been periodic domestic difficulties. It was undisputed that a few months later, the husband filed for and subsequently received a divorce. The court also held that the patient did not establish the physician's violation of the patient's privacy (because none of the four branches of the common-law right to privacy applied), intentional infliction of emotional distress (because the physician's conduct was not outrageous), or liability for punitive damages (for the same reason). R.M. NY Court Orders Emergency Assistance to Homeless PWA's Justice Ramos, New York Supreme Court, New York County, ruled March 29 in Darns v. Sabol, 1995 WL 311427, that homeless persons with AIDS in the city are entitled under various state statutes to emergency assistance from the city. However, Justice Ramos denied the plaintiff's request to certify a class that would also include HIV+ people who were living with relatives, in single-room occupancy apartments or other apartments, and rejected the demand that the city be required to act on their applications within a specified number of hours. Ramos prefaced the substance of his opinion with a brief essay on the separation of powers, leading to his conclusion that the court was limited to applying statutory determinations of the legislature in responding to the plaintiffs' demands. He found that the diversity of circumstances of people with HIV-infection in the described housing categories were such that common questions of law and fact did not predominate over issues affecting individual class members, and that it was not necessary to certify a class of homeless people with HIV-infection, since any order of the court would be construed to apply to all similarly situated people. Ramos granted a preliminary injunction, ordering the city to treat HIV-infected people "who are disabled or seriously ill with AIDS and are without shelter" as entitled to emergency housing assistance, based on a variety of state statutes collectively evincing a legislative judgment that homeless PWA's should receive various forms of public assistance. Basing their claim on certain administrative directives, the plaintiffs sought as part of the court's order a command that benefits be paid within 72 hours of application; the court denied the demand, finding no legislative sanction to give PWA's priority over other applicants for assistance who are in emergency circumstances. A.S.L. PWA Wins First Round in Disability Insurance Litigation In a May 18 decision, U.S. District Judge Sifton ruled that an insurance company was barred from raising a claim that a PWA had misrepresented his status in an application for reinstatement of disability insurance, because the company failed to comply with a New York State insurance law provisions that requires the company to send an insured a copy of his reinstatement application within 15 days of receiving a request. Massachusetts Casualty Insurance Co. v. Morgan, 1995 WL 313122 (S.D.N.Y.) (not officially published). Thomas Morgan III applied for disability insurance in May 1988, a month after learning his was HIV+, but did not disclose this information on the application. He was diagnosed with AIDS in August 1990. On October 22, 1992, his policy lapsed for nonpayment; responding to a notice from the company, he applied for reinstatement in December 1992, submitting a form in which he declared his health was the same as at the time of his original application. In July 1994, he submitted a claim for disability benefits, having become too ill to work. The company launched an investigation of the claim, and Morgan requested a copy of his reinstatement application, which was not sent him within the statutory time period specified in N.Y. Insurance Law sec. 3204(e), which also provides that if the copy is not provided, "the insurer shall be precluded from introducing such application or notice as evidence in any action or proceeding based upon or involving such policy or its reinstatement, renewal or change." As a result of its investigation, the company filed an action seeking a declaration that the reinstatement was void due to Morgan's misrepresentations on the application. Morgan moved to dismiss based on sec. 3204(e). Judge Sifton found that sec. 3204 was intended to give insureds a right to obtain copies of their insurance forms and applications as a consumer protection measure, and that the legislature intended the preclusion language to be taken seriously, so he granted Morgan's motion to dismiss the company's claim for declaratory judgment. However, Sifton simultaneously granted a motion by the company to amend the complaint to add a new claim, seeking a declaration that Morgan's benefit claim was not covered by the policy since he already had AIDS at the time the reinstatement was granted. Sifton rejected Morgan's argument that the amendment should be barred as nonmeritorious, pointing out that the litigation had barely commenced and Morgan was free to make his substantive arguments on the new claim at a later point. Morgan is represented by New York City AIDS insurance law specialist Mark Scherzer. A.S.L. 4th Circuit Rejects Associational Discrimination Claim Under ADA In a discrimination claim brought under the Americans With Disabilities Act (ADA), the Fourth Circuit rejected plaintiff's claim that she was fired from her job because of her known association with her disabled son, who was HIV+. Ennis v. National Association of Business and Educational Radio, Inc., 1995 WL 289655 (May 15). The court applied a modified version of the McDonnell Douglas burden-shifting scheme of proof to this HIV-related ADA claim of employment discrimination. Plaintiff Joan Ennis claimed that her employer fired her in order to avoid the possibility of a catastrophic impact that her son's illness might have on the company's health insurance rates. In rejecting plaintiff's claim, the court granted the employer's motion for summary judgment, finding that plaintiff failed to establish a prima facie case of discrimination because she did not establish that she was performing her job at a level that met her employer's legitimate expectations. Ennis worked as a bookkeeping clerk at the National Association of Business and Educational Radio, Inc. (NABER) from April 1990 until she was fired in June 1993. At the time that Ennis was hired, she was adopting a child, Andrew Joshua (A.J.), who was HIV+ but asymptomatic, and who remained asymptomatic up to the date of the court's decision. At the encouragement of NABER's human resources manager, who was aware of the adoption, Ennis enrolled A.J. in the company's health plan. According to the facts as stated by the court, Ennis was "repeatedly reprimanded" about data entry problems, excessive phone calls, excessive socializing and tardiness during the course of her employment. As a result of these performance problems, in January 1993 NABER briefly suspended Ennis and eventually fired her. Immediately prior to Ennis' suspension and ultimate discharge, NABER's director of human resources issued a memorandum, dated December 29, 1992, to all employees describing NABER's insurance coverage. The memorandum stated that if the number of individuals electing coverage goes above fifty, premium increases will be based on the participant's actual expenses, rather than the current "pool" coverage; "(w)hat this translates to," the memo concludes, "is if we have a couple of very expensive cases, our rates could be more dramatically affected than they currently are." When Ennis was fired, she filed an action under Title I of ADA and claimed that, based on the December, 1992 memorandum, and the fact that NABER's president recently had "the first of the `couple of very expensive cases,'" she was terminated because of her relationship with a disabled person, in violation of the ADA. In granting NABER's motion for summary judgment, Circuit Judge Luttig held that "in a typical discharge case brought under the ADA, a plaintiff must prove by a preponderance of the evidence that (1) she was in the protected class; (2) she was discharged; (3) at the time of the discharge, she was performing her job at a level that met her employer's legitimate expectations; and (4) her discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination." citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) and Smith v. Barton, 914 F.2d 1330, 1340 (9th Cir. 1990), cert. denied, 111 S.Ct. 2825 (1991). If the plaintiff succeeds in proving the prima facie case, the burden would then shift to the employer to articulate a nondiscriminatory reason which would support a finding that unlawful discrimination was not the cause of the employment action. According to Judge Luttig, "(i)f the defendant meets this burden of production, the presumption created by the prima facie case `drops out of the picture,' and the plaintiff bears the ultimate burden of proving that she as been the victim of intentional discrimination," citing St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2746-49 (1993). Based on the number of disciplinary problems that Ennis had while employed by NABER, the court held that plaintiff had failed to prove prong 3 of the prima facie case, in that she failed to prove that she was performing her job at a level that met NABER's expectations. The 4th Circuit's decision, although not finding in favor of the plaintiff, is worth reading because it sets forth an in-depth analysis of the plaintiff's burden of proof under the ADA. Judge Luttig noted that the court was modifying the McDonnell Douglas formulation of the final prong of the plaintiff's prima facie case for two reasons. First, "where disability, in contrast to race, age, or gender, is at issue, the plaintiff in many, if not most, cases will be unable to determine whether a replacement employee is within or without the protected class." Second, "even if the plaintiff could obtain such information, requiring a showing that the replacement was outside the protected class would lead to the dismissal of many legitimate disability discrimination claims, since most replacements would fall within the broad scope of the ADA's protected class -- the enormous number of Americans with disabilities, as defined by the Act, exponentially increased by those persons who are associated with individuals who are disabled, as so defined." M.B. Federal Court Rejects HIV-Discrimination Claim by Surgical Technician William C. Mauro was laid-off from his position as a surgical technician when he refused to take an HIV test. In Mauro v. Borgess Medical Center, the federal district court rejected his HIV discrimination and emotional distress claims, granting a motion for summary judgment by the defendant. 1995 WL 313991 (W.D.Mich., May 4). Judge McKeague's opinion follows the decisions in Doe v. University of Maryland Medical System Corp., 50 F.3d 1261 (4th Cir. 1995), and Bradley v. University of Texas M.D. Anderson Cancer Center, 3 F.3d 922 (5th Cir. 1993), cert. denied, 114 S.Ct. 1071 (1994), in holding that HIV-infected health care workers who participate in the operating room may be excluded as a "direct threat" to patients, despite the lack of any documented case of HIV transmission from a health care worker to a patient during surgery. Mauro was laid off after he refused to take an HIV test or to transfer to another position at the same pay that would not have presented any theoretical possibility of HIV transmission to patients. The cases on which McKeague relied involved a surgical technician (Bradley) and a resident in neurosurgery. The elements of risk identified in the surgical technician's duties were handling sharp instruments, suffering occasional cuts and needlestick injuries, and occasionally having to hold open a surgical incision to provide more operating room for the surgeon, using either hands or retractors. The Americans With Disabilities Act provides that a person whose disability presents a direct risk to others which cannot be eliminated through reasonable accommodations is not "qualified" and thus not protected from discrimination. The statute uses the "significant risk" concept embraced by the Supreme Court in School Board of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987), to analyze the risk. Arline posits a four-part analysis, focusing on the nature of the risk, the duration of the risk, the severity of the risk, and the probability of transmission in cases of infectious agents. Judge McKeague opined that only the last of these factors was in issue, asserting that the parties "agree that the first three factors indicate plaintiff represents a significant risk to others." As to the last factor, McKeague found that the testimony of Mauro's two expert witnesses did not create a material fact dispute that would preclude summary judgment, since one had "recognized that plaintiff's direct contact with a patient's body in surgery represented a risk, `a real risk,' to the patient's care and safety," and the other, when cross examined with respect to particular aspects of the technician's job, stated that his opinion about plaintiff's fitness to work might change. Finally, McKeague found the prior 4th and 5th Circuit opinions to be "materially indistinguishable and properly reasoned. As both opinions observe, the fact that the probability of transmission is small is not dispositive. . . Because there is a real possibility of transmission, however small, and because the consequence of transmission is invariably death, the threat to patient safety posed by plaintiff's presence in the operating room performing the functions of a surgical technician is direct and significant." The court also found that the hospital had offered a reasonable accommodation by proposing a transfer without loss of pay, thus satisfying its statutory obligation, that the analysis of legal issues would be the same under the Michigan state disability law, and that nothing the hospital had done reached the level of outrageousness necessary to sustain the pendent tort claim of intentional infliction of emotional distress. Shortly before this decision was issued, the Centers for Disease Control issued a new study, showing that the risk of transmission from HIV-infected health care workers to patients was virtually non-existent. As reported in the San Francisco Examiner on May 3 ("Health Worker Transmission Risk Nonexistent," by Lisa M. Krieger), the CDC studied 22,171 patients of 64 physicians, dentists, technicians, podiatrists and other health care workers known to be HIV+. Only 113 of the patients were infected with HIV; none of them could be shown to have been infected by the health care worker, either because there was documentation that their infection predated contact with the health care worker, other risk factors were clearly responsible, or the viral strains did not match. Out of all these patients, only three were still under investigation at the time the study was released. A.S.L. Federal Court Denies Section 1983 Claim for Botched HIV Test A prison inmate who was incorrectly diagnosed as HIV+ does not have a cause of action under 42 U.S.C. sec. 1983 against the prison or prison officials. Bailey v. AIDS Unit--San Quentin State Prison, 1995 WL 274370 (N.D.Cal., May 3, 1995). Henry Lee Bailey was incarcerated at Avenal State Prison in 1992. He voluntarily gave a blood sample in order to get married. Without his consent, the blood was tested for HIV. Bailey's blood tested positive and he was transferred to the AIDS Unit at San Quentin, where his blood tested positive again. Bailey was in the AIDS unit for seven months until he was released from prison. Subsequently in 1994, Bailey returned to San Quentin, where he was tested again and all tests were negative. Bailey sued under 42 U.S.C. sec. 1983, alleging that the involuntary testing leading to a false diagnosis, which led to his placement in the AIDS unit causing emotional distress to himself and his family. The court found that Bailey failed to allege the two essential elements of a sec. 1983 action: first, the violation of a right under the United States Constitution and second, that the violation was committed by a person acting under color of state law. The court pointed out that a claim for negligence or gross negligence is not actionable under 42 U.S.C. sec. 1983. Bailey's claim could have been brought in state court, but it may now be time-barred. T.V.L. Florida Court Reverses Conviction of PWA on Ground of Potential Juror Bias An HIV+ man convicted on charges of attempted murder, assault, and capital sexual battery must be granted a new trial, ruled Florida's District Court of Appeal on May 10, because a juror's experience with sexual molestation within his family precluded his ability to give the defendant a fair trial. Writing in the case of Perea v. Florida, 1995 WL 271452 (Fla.App., 3rd Dist.), a three-member panel held that Ignacio Alejandro Perea's convictions for attempted first degree murder, kidnapping, lewd assault, and capital sexual battery must be reversed because the defendant's counsel was unable to strike the juror. Perea was aware that he was HIV+ when he was charged with sexual assault on a minor. Potential jurors were given a questionnaire to fill out. The juror at issue answered that a relative had been the victim of sexual molestation, and thus he was unsure if could judge Perea fairly. While the juror "indicated that he would follow the court's instructions," his "other responses on the ability to give a fair trial were equivocal," noted the court. Perea had exhausted his peremptory challenges, and a request for an additional challenge was denied. The trial court's failure to allow Perea's counsel to strike the juror conflicts with the test for juror competency set out by the Florida Supreme Court in Turner v. Florida, 645 So.2d 444 (Fla. 1994), said the appeals court. The Turner standard is "whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court." M.N.S. California Appeals Court Upholds Judgment Against Plaintiff in HIV Transfusion Case The California Court of Appeals affirmed a grant of summary judgment against a plaintiff who sued a blood bank for negligently failing to protect his wife from HIV infection, and for failure to obtain informed consent for the procedure which resulted in her infection. Spann v. Irwin Memorial Blood Centers, 1995 WL 243670 (Cal. App., April 27). Sherrie Spann received blood products in 1984 when she was faced with a life-threatening blood disease. She indisputably knew of the risk of contracting AIDS from the transfusions. Summary judgment was appropriate on the negligence claim, the court held, because the plaintiff had not shown that the blood bank had failed to exercise ordinary care under the circumstances. Plaintiffs' only evidence that the blood bank had failed to meet this standard of care was a lone expert witness who testified that the blood bank should have offered Sherrie Spann a "donor reduction program" where the blood bank would have limited the number of donors from whom she received blood products. In 1984, no blood bank offered such a program. The court was thus unwilling to allow the plaintiffs' expert to "second guess" the entire profession in establishing the standard of care. The court also affirmed the grant of summary judgment on the claim of failure to obtain informed consent because the plaintiffs had not shown a causal connection between the defendant's failure to disclose and the decedent's injury. Sherrie Spann's undisputed knowledge of the risk of AIDS from the transfusions was fatal to her claim, as the court was unconvinced that she would have elected not to receive the blood products had she been better informed of the risk of AIDS. The court affirmed summary judgment in the blood bank's favor. Other claims against the hospital were submitted to court-ordered arbitration. D.W. Missouri Appeals Court Rejects Tort Claims Against Doctors for Failure to Diagnose AIDS In Morton v. Mutchnick, 1995 WL 293153 (Mo.App., W.D., May 16), the Missouri Court of Appeals affirmed a trial court's decision to dismiss claims of wrongful death and lost chance of recovery arising from the death of the plaintiffs' son from AIDS. Ralph Morton, Jr., died from AIDS on March 9, 1990. The defendant doctors, who had treated him for various problems over the course of a year or more prior to his death, only suspected the possibility of AIDS a week before he died, although the previous year he was plagued with a variety of medical problems. His parents claimed that with competent diagnosis, he could have been properly treated and lived longer. The court found that a wrongful death claim had not been properly stated on these facts. "The harm that the plaintiffs claim was suffered was not the loss of life, but rather, a shortening of life. The plaintiffs cannot prove that the patient's death, based on reasonable medical or scientific certainty, resulted from the defendants' failure to diagnose his pre-existing AIDS condition. . . It is not the failure to diagnose Mr. Morton's condition that caused his death; his death resulted from the preexisting disease." Moving to the "lost chance of recovery" claim, premised on an earlier Missouri case, Wollen v. DePaul Health Center (828 S.W.2d 681 (1992), in which the Missouri Supreme Court had held that under certain circumstances a tort action could be maintained in situations where negligence by a doctor resulted in the patient losing a substantial possibility of recovery, the court once again found that the facts did not fit the legal theory. Under Wollen, there has to be some chance of cure by competent medical care. The Mortons could not make such a claim in this case. "It appears that what the plaintiffs are asking is for this court to establish a new cause of action for lost chance of lengthening life. Plaintiffs are arguing that they should be allowed to recover damages for Mr. Morton's lost chance to have his life extended by an unknown period of time until his ultimate death as a result of AIDS. Missouri does not recognize such a cause of action." The court provided no substantive discussion as to why such a cause of action should not be recognized, in light of the suffering and shortening of life experienced by Ralph Morton, Jr. A.S.L. California Court Sentences Killer of PWA to 21 Years Sacramento County (California) Superior Court Judge Jack Sapunor sentenced Dale Hutton to 21 years in prison for the murder of Douglas Leeper, a person with AIDS, on May 16. A jury convicted Hutton of second-degree murder in April. Hutton argued that he acted in self-defense when he fatally stabbed Leeper, who he claims had made a sexual advance toward him. Hutton claims to have known that "several of Leeper's male lovers" died from AIDS. At the sentencing hearing, Leeper's mother revealed that Leeper did have AIDS, and angrily accused Hutton of thinking that homosexuals were subhuman. "You think all they want to do is to jump into bed," she said. "Doug did have AIDS and after you stabbed him you wiped the infected blood on your pants and didn't even care if you infected the police, friends, cab drivers or anyone you were around. When you killed my son you cut out a part of my life which will never be the same again. Yes, he was a drug addict, but drug addicts can be cured. Dean people can't." The prosecution's theory of the case was that Hutton went to Leeper's apartment ostensibly to buy drugs but actually to steal them from Hutton. Sacramento Bee, May 17. A.S.L. AIDS Law & Society Notes The Colorado Compensation Insurance Authority, which administers the state's workers compensation law, is determined not to pay benefits to Roger Allen, a medical lab technician who claims he was infected with HIV on the job while rummaging in a receptacle of contaminated and broken test tubes to retrieve a lost test sample. Allen, who says he is not gay and is married, has a low enough T-cell count to be diagnosed with AIDS, and an administrative law judge has awarded him benefits, but the Authority is appealing the decision and has launched an "intensive investigation" to try to prove that Allen contracted the virus through gay sex. Denver Post, May 15. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS ANNOUNCEMENTS A new organization, the Forum on the Right to Marriage (FORM), has been organized to work toward the legalization of same-sex marriage. Chapters are now active in Boston and San Francisco, and are in formation elsewhere. For information, contact FORM, 227 Chelsea St., E. Boston, MA 02128; 617-569-9733; e-mail: FORMBOSTON@aol.com. The Massachusetts Lesbian and Gay Bar Association's Annual Meeting will be held June 9, 6 p.m., at Suffolk University Law School in Boston, featuring a program on "The 104th Congress: The Outlook for Lesbian and Gay Issues Under the New Majority." For information, call Steve Aruch, 617-873-3806. LESBIAN & GAY & RELATED LEGAL ISSUES: Aalberts, Robert J., and Kenneth C. Fonte, Is Section 2C of The Model Code of Judicial Conduct Justified? An Empirical Study of the Impropriety of Judges Belonging to Exclusive Clubs, 8 Georgetown J. Legal Ethics 597 (Spring 1995). Austen, Andrea, and Adrian Alex Wellington, Outing: The Supposed Justifications, 8 Canadian J. L. & Juris. 83 (January 1995). Bogart, J.H., Reconsidering Rape: Rethinking the Conceptual Foundations of Rape Law, 8 Canadian J. L. & Juris. 159 (January 1995). Bower, Lisa C., Queer Acts and the Politics of "Direct Address": Rethinking Law, Culture, and Community, 28 L. & Society Rev. 1009 (1994). Burgess-Jackson, Keith, Statutory Rape: A Philosophical Analysis, 8 Canadian J. L. & Juris. 139 (January 1995). Chemerinsky, Erwin, The First Amendment: When the Government Must Make Content-Based Choices, 42 Cleveland State L. Rev. 199 (1994). De Vos, Pierre, The Right of a Lesbian Mother to Have Access to Her Children: Some Constitutional Issues, 111 South Africa L.J. 687 (Nov. 1994). Eaton, Mary, At the Intersection of Gender and Sexual Orientation: Toward Lesbian Jurisprudence, 3 S. Cal. Rev. L. & Women's Studies 183 (Spring 1994). Elovitz, Marc E., Reforming the Law to Respect Families Created By Lesbian and Gay People, 3 J. L. & Policy 431 (1995) (with introduction summarizing Thomas S. v. Robin Y. by Kevin J. Hellmann). Green, Leslie, Sexuality, Authenticity, and Modernity, 8 Canadian J. L. & Juris. 67 (January 1995). Hollandsworth, Marla J., Gay Men Creating Families Through Surro-Gay Arrangements: A Paradigm for Reproductive Freedom, 3 Amer. U. J. Gender & L. 183 (Spring 1995). Hutchinson, Allan C., In Other Words: Putting Sex and Pornography in Context, 8 Canadian J. L. & Juris. 107 (January 1995). Karlan, Pamela S., Bringing Compassion Into the Province of Judging: Justice Blackmun and the Outsiders, 71 North Dakota L. Rev. 173 (1995) (part of Tribute issue to Justice Blackmun). Lenhoff, Donna, and Claudia Withers, Implementation of the Family and Medical Leave Act: Toward the Family-Friendly Workplace, 3 Amer. U. J. Gender & Law 39 (Fall 1994). Linz, Daniel, et al., Discrepancies Between the Legal Code and Community Standards for Sex and Violence: An Empirical Challenge to Traditional Assumptions in Obscenity Law, 29 L. & Society Rev. 127 (1995). Mohr, Richard D., The Perils of Postmodernity for Gay Rights, 8 Canadian J. L. & Juris. 5 (January 1995). Nordahl, Richard, Ronald Dworkin and the Defense of Homosexual Rights, 8 Canadian J. L. & Juris. 19 (January 1995). O'Callaghan, Jerome, Free Speech by the Light of a Burning Cross, 42 Cleveland State L. Rev. 215 (1994). Pope, Derrick A., A Constitutional Window to Interpretive Reason: Or In Other Words. . . The Ninth Amendment, 37 Howard L.J. 441 (Spring 1994). Rae, Scott B., Parental Rights and the Definition of Motherhood in Surrogate Motherhood, 3 S. Cal. Rev. L. & Women's Studies 219 (Spring 1994). Reynolds, Cameron D., and Morgan O. Reynolds, State Court Restrictions on the Employment-At-Will Doctrine, 18 Regulation No. 1, 57 (1995). Scarnecchia, Suellyn, Who Is Jessica's Mother? Defining Motherhood Through Reality, 3 Amer. U. J. Gender & L. 1 (Fall 1994). Stychin, Carl F., Essential Rights and Contested Identities: Sexual Orientation and Equality Rights Jurisprudence in Canada, 8 Canadian J. L. & Juris. 49 (January 1995). Sunstein, Cass R., Rights and Their Critics, 70 Notre Dame L. Rev. 727 (1995). Thornton, Brenda Sue, The New International Jurisprudence on the Right to Privacy: A Head-On Collision with Bowers v. Hardwick, 58 Albany L. Rev. 725 (1995). Wilets, James D., International Human Rights Law and Sexual Orientation, 18 Hastings Int'l & Comp. L. Rev. 1 (Fall 1994). Student Notes & Comments: Arsenault, Joseph G., "Family" But Not "Parent": The Same-Sex Coupling Jurisprudence of the New York Court of Appeals, 58 Albany L. Rev. 813 (1995). Fowles, James H., III, Hostile Environments and the First Amendment: What Now After Harris and St. Paul?, 46 S. Car. L. Rev. 471 (Spring 1995). Micacci, Rosemarie A., Wisconsin v. Mitchell: Punishable Conduct v. Protected Thought, 21 New Eng. J. Crim. & Civ. Confinement 131 (Winter 1995). Ruzic, Karen A., Military Justice and the Supreme Court's Outdated Standard of Deference: Weiss v. United States, 70 Chicago-Kent L. Rev. 265 (1994). Zwerling, Martin S., Legislating Against Hate in New York: Bias Crimes and the Lesbian and Gay Community, 11 Touro L. Rev. 529 (Winter 1995). Specially Noted: Vol. 39, No. 1, of the Saint Louis University Law Journal is dedicated to the memory of Professor Gene P. Schultz, who died from AIDS last year. There is a memorial tribute by Prof. Jesse A. Goldner as introduction to the issue, which features a symposium on health care reform. North Carolina Gay and Lesbian Attorneys has published a 1995 edition of A Legal Guide for Lesbians and Gay Men in North Carolina. The 82-page booklet, which is on sale in gay bookstores around the state, can be obtained for $10.95 (check payable to NC GALA) from the principal author, John H. Boddie, Esq., 806 Green Valley Rd., Suite 300, Greensboro, NC 27408. The Thornton and Wilets articles noted above both concern the international treaty obligation adopted by the U.S. in 1992 when it ratified the International Covenant on Civil and Political Rights, which was recently interpreted by the U.N. Human Rights Committee as requiring Tasmania to repeal its laws against consensual sodomy. The Senate purported to restrict the applicability of the ICCPR in U.S. courts by declaring as part of the ratification bill that the treaty was not "self-executing," meaning that it does not provide a private right of action in U.S. courts. Query how this treaty obligation might be used in the on-going effort to reform sodomy laws in more than 20 states? Vol. 28, No. 4 of Family Law Quarterly, published by the ABA Family Law Section, includes an overview of family law developments in the 50 states during 1993-94 by Linda D. Elrod, which notes many developments in lesbian and gay family law. Vol. 8, No. 1 of The Canadian Journal of Law & Jurisprudence (January 1995) is devoted to a symposium on law and sexuality. Individual articles are noted above. The journal is published by the Faculty of Law of the University of Western Ontario in London, Ontario, Canada. Symposia: National Health Care Reform: The Legal Issues, 5 Health Matrix: J. of Law-Medicine No. 1 (Winter 1995). AIDS & RELATED LEGAL ISSUES: Croasdell, Jeffrey M., State Constitutional Protection of Children With AIDS and the Right to a Public Education, 42 Cleveland State L. Rev. 239 (1994). Holtgrave, David R. et al., An Overview of the Effectiveness and Efficiency of HIV Prevention Programs, 110 Publ. Health Rep. 134 (March-April 1995). Hylton, Maria O'Brien, Insurance Risk Classifications After McGann: Managing Risk Efficiently in the Shadow of the ADA, 47 Baylor L. Rev. 59 (Winter 1995). Jenner, Robert K., Claims for Fear of AIDS: The Law is Developing, 31 Trial No. 5, 38 (May 1995). Knepper, Kathleen, Responsibility of Correctional Officials in Responding to the Incidence of the HIV Virus in Jails and Prisons, 21 New Eng. J. On Crim. & Civ. Confinement 45 (Winter 1995). Logan, Mary K., Who's Afraid of Whom? Courts Require HIV-Infected Doctors to Obtain Informed Consent of Patients, 44 DePaul L. Rev. 483 (Winter 1995). Mahaffey, Katherine J., and David K. Marcus, Correctional Officers' Attitudes Toward AIDS, 22 Crim. Justice & Behavior 91 (June 1995). Mars, Harvey S., Employee Welfare Benefit Entitlements and Title I of the Americans With Disabilities Act, 46 Lab. L. J. 273 (May 1995). Salbu, Steven R., HIV Home Testing and the FDA: The Case for Regulatory Restraint, 46 Hastings L.J. 403 (January 1995). Schuman, Gary, Health and Life Insurance Applications: Their Role in the Claims Review Process, 62 Defense Counsel J. 225 (April 1995). Taylor, Allyn L., Women's Health at a Crossroad: Global Responses to HIV/AIDS, 4 Health Matrix: J. of L.-Med. 297 (Summer 1994). Student Notes & Comments: Anzalone, Giovanni, AIDS and Mandatory Pro Bono: A Step Toward the Equal Administration of Justice, 8 Georgetown J. Legal Ethics 691 (Spring 1995). Estes, John E., Employee Benefits or Employer "Subterfuge": The Americans With Disabilities Act's Prohibition Against Discriminatory Health Plans, 12 N.Y.L.S. J. Hum. Rts. 85 (Fall 1994). Johnston, Jennifer L., Is Mandatory HIV Testing of Professional Athletes Really the Solution?, 4 Health Matrix: J. of L.-Med. 159 (Spring 1994). Kelly, Katherine A., The Assumption of Risk Defense and the Sexual Transmission of AIDS: A Proposal for the Application of Comparative Knowledge, 143 U. Pa. L. Rev. 1121 (April 1995). Lindemann, Eric, Importing AIDS Drugs: Food and Drug Administration Policy and Its Limitations, 28 Geo. Washington J. Int'l L. & Econ. 133 (1994). McKinney, Jeremy, HIV, AIDS & Job Discrimination: North Carolina Failure and Federal Redemption, 17 Campbell L. Rev. 115 (Winter 1995). Morgan, Patrick J., Applicability of ADA Non-Discrimination Principles to Self-Insured Health Plans: Do "AIDS Caps" Violate the Law?, 11 J. Contemp. Health L. & Pol. 221 (Fall 1994). Souza, John M., Doe v. Town of Plymouth and Officer Paul Tibbetts: When is the Disclosure of HIV Statue Beyond the Call of Duty?, 29 New England L. Rev. 391 (Winter 1995). 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.