LESBIAN/GAY LAW NOTES
Lesbian & Gay Law Association of Greater New York
ISSN 8755 9021
Summer 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 Writers: Monica Barrett, Esq., New York; Otis Damslet,
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; David Buchanan, Esq.,
Sydney, Australia; Robert Wintemute, Esq., London, England; Robert
Bourguignon, Philip Friedman, Clarice B. Rabinowitz, Students,
Brooklyn Law School; Helen G. Ullrich, Student, New York Law
School.

Circulation: Daniel Schaffer, 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)               

SUPREME COURT UPHOLDS PARADE EXCLUSION OF BOSTON GAY IRISH GROUP

Putting an end to the lengthy legal battle by the Irish-American
Gay, Lesbian and Bisexual Group of Boston (GLIB) to win the right
to march under its own banner in Boston's annual St. Patrick's
Day/Evacuation Day Parade, the U.S. Supreme Court unanimously ruled
June 19 that the parade organizers, the South Boston Allied War
Veterans Council (the Council), has a 1st Amendment right to
exclude groups with whose message the Council disagreed.  1995 WL
360192.  In so ruling, the Court overruled the Massachusetts
Supreme Judicial Court's 1994 decision holding that the parade was
not an expressive event and that the gay group's act of marching
with its banner did not communicate any particular message.  See
636 N.E.2d 1293 (Mass. 1994).  Justice David Souter's opinion for
the Court was narrowly focused on the parade issue, avoiding any
sort of broad pronouncement about the constitutional rights of
dissenters to escape compliance with sexual orientation
discrimination statutes. 

The controversy arose in 1992 when GLIB was formed for the purpose
of marching in the annual parade.  The Council rejected GLIB's
application to participate, but GLIB obtained a state court order
and marched without serious incident.  The whole problem was
repeated in 1993, but this time the case went further, as the
Council appealed to the Massachusetts Supreme Judicial Court, which
affirmed the trial court's finding that the parade was both a
celebratory event communicating no particular message, and a place
of public accommodation or amusement covered by the Massachusetts
Law Against Discrimination, which forbids discrimination on the
basis of sexual orientation.  According to the Massachusetts
S.J.C., the Council's 1st Amendment rights were not violated by
compelling GLIB's inclusion in the march because neither the
Council nor GLIB were attempting to communicate any message by
marching.  (In 1994, the Council canceled the parade rather than
comply with the court's order.  This year, the Council re-styled
their parade as a protest march, and won a declaratory judgment
from a federal district judge that they could hold the event
without including GLIB.)

The Supreme Court approached this case as a 1st Amendment free
speech case simpliciter.  After reviewing the history of the
controversy and noting the well-supported finding below that the
parade is a privately operated event, Justice Souter turned his
attention to the nature of a parade:  "If there were no reason for
a group of people to march from here to there except to reach a
destination, they could make the trip without expressing any
message beyond the fact of the march itself.  Some people might
call such a procession a parade, but it would not be much of one.
Real `[p]arades are public dramas of social relations, and in them
performers define who can be a social actor and what subjects and
ideas are available for communication and consideration.' [citation
omitted]  Hence, we use the word `parade' to indicate marchers who
are making some sort of collective point, not just to each other
but to bystanders along the way.  Indeed a parade's dependence on
watchers is so extreme that nowadays, as with Bishop Berkeley's
celebrated tree, `if a parade or demonstration receives no media
coverage, it may as well not have happened.'. . .  Parades are thus
a form of expression, not just motion, and the inherent
expressiveness of marching to make a point explains our cases
involving protest marches. . . .  

"The protected expression that inheres in a parade is not limited
to its banners and songs, however, for the Constitution looks
beyond written or spoken words as mediums of expression. . . .  [A]
narrow, succinctly articulable message is not a condition of
constitutional protection, which if confined to expressions
conveying a `particularized message,' would never reach the
unquestionably shielded painting of Jackson Pollock, music of
Arnold Schonberg, or Jabberwocky verse of Lewis Carroll.

"Not many marches, then, are beyond the realm of expressive
parades, and the South Boston celebration is not one of them.
Spectators line the streets; people march in costumes and uniforms,
carrying flags and banners with all sorts of messages (e.g.,
`England get out of Ireland,' `Say no to drugs'); marching bands
and pipers play, floats are pulled along, and the whole show is
broadcast over Boston television.  To be sure, we agree with the
state courts that in spite of excluding some applicants, the
Council is rather lenient in admitting participants. But a private
speaker does not forfeit constitutional protection simply by
combining multifarious voices, or by failing to edit their themes
to isolate an exact message as the exclusive subject matter of the
speech.  Nor, under our precedent, does First Amendment protection
require a speaker to generate, as an original matter, each item
featured in the communication. Cable operators, for example, are
engaged in protected speech activities even when they only select
programming originally produced by others. . . . For that matter,
the presentation of an edited compilation of speech generated by
other persons is a staple of most newspapers' opinion pages, which,
of course, fall squarely within the core of First Amendment
security, as does even the simple selection of a paid noncommercial
advertisement for inclusion in a daily paper. The selection of
contingents to make a parade is entitled to similar protection.

"Respondents' participation as a unit in the parade was equally
expressive. GLIB was formed for the very purpose of marching in it,
as the trial court found, in order to celebrate its members'
identity as openly gay, lesbian, and bisexual descendants of the
Irish immigrants, to show that there are such individuals in the
community, and to support the like men and women who sought to
march in the New York parade.  The organization distributed a fact
sheet describing the members' intentions, and the record otherwise
corroborates the expressive nature of GLIB's participation. In
1993, members of GLIB marched behind a shamrock-strewn banner with
the simple inscription `Irish American Gay, Lesbian and Bisexual
Group of Boston.' GLIB understandably seeks to communicate its
ideas as part of the existing parade, rather than staging one of
its own." [citations omitted]

Given these findings, which contradicted those of the state courts,
it was not surprising that Souter concluded that compelling GLIB's
inclusion would violate the rights of the Council.  Significantly,
however, Souter rejected any argument that the Mass. Law Against
Discrimination is unconstitutional.  "Provisions like these are
well within the State's usual power to enact when a legislature has
reason to believe that a given group is the target of
discrimination, and they do not, as a general matter, violate the
First or Fourteenth Amendments."  Thus the finding of
unconstitutionally only concerns the statute as applied to this or
similar controversies.  Souter capsulized the right in issue as
"speaker's autonomy," as to which government intervention is
impermissible apart from very narrow exceptions, and he emphasized
that such autonomy extends not only to what the speaker chooses to
say but also to what the speaker chooses not to say.  

Thus, the Council could chose not to include a group whose message
of acceptance for lesbian and gay identity was deemed by the
Council as inappropriate for inclusion in their parade: "                     
Petitioners' claim to the benefit of this principle of autonomy to
control one's own speech is as sound as the South Boston parade is
expressive.  Rather like a composer, the Council selects the
expressive units of the parade from potential participants, and
though the score may not produce a particularized message, each
contingent's expression in the Council's eyes comports with what
merits celebration on that day.  Even if this view gives the
Council credit for a more considered judgment than it actively
made, the Council clearly decided to exclude a message it did not
like from the communication it chose to make, and that is enough to
invoke its right as a private speaker to shape its expression by
speaking on one subject while remaining silent on another.  The
message it disfavored is not difficult to identify. Although GLIB's
point (like the Council's) is not wholly articulate, a contingent
marching behind the organization's banner would at least bear
witness to the fact that some Irish are gay, lesbian, or bisexual,
and the presence of the organized marchers would suggest their view
that people of their sexual orientations have as much claim to
unqualified social acceptance as heterosexuals and indeed as
members of parade units organized around other identifying
characteristics.  The parade's organizers may not believe these
facts about Irish sexuality to be so, or they may object to
unqualified social acceptance of gays and lesbians or have some
other reason for wishing to keep GLIB's message out of the parade.
But whatever the reason, it boils down to the choice of a speaker
not to propound a particular point of view, and that choice is
presumed to lie beyond the government's power to control."

The decision establishes a significant principle with respect to
parades that may serve the organizers of gay pride parades as well,
as they seek to exclude participation of overtly anti-gay groups. 
Indeed, just weeks after the court's ruling, an anti-gay group in
San Diego, California, calling itself "Normal People," agreed to
drop its lawsuit seeking inclusion in the gay pride march in that
city.  Normal People v. San Diego Lesbian and Gay Pride, No. 678682
(Calif. Superior Ct., San Diego County).  (The Gay Pride group will
now attempt to recoup fees and costs from "Normal People", arguing
that their lawsuit was frivolous.)  At the same time, Beatrice
Dohrn, legal director of Lambda Legal Defense Fund (which filed an
amicus brief Boston case and represented the Pride Committee in the
San Diego case), observed that the Supreme Court's recognition of
the expressive component of marching with a banner identifying a
group as consisting of lesbians, gay men and bisexuals might prove
useful in the continuing litigation over the "don't ask, don't
tell" policy in the armed forces, which says, in effect, that gays
can serve as long as they don't engage in speech or conduct
expressive of their sexual orientation. A.S.L.

LESBIAN/GAY LEGAL NEWS 

Wisconsin Supreme Court Supports Co-Parent Visitation

On June 13 the Wisconsin Supreme Court became the first state
highest court to hold that a lesbian co-parent can seek a
visitation order after the breakup of her partnership with a
child's biological mother.  In re Custody of H.S.H-K.: Holtzman v.
Knott, 1995 WL 357902.  The 4-3 decision drew three dissenting
opinions, arguing that the court was engaging in inappropriate
legislative action and violating the biological mother's
constitutional rights.  The decision for the court by Justice
Shirley S. Abrahamson was foreshadowed by dissenting opinions by
Justices Abrahamson and William A. Bablitch in In re Interest of
Z.J.H., 471 N.W.2d 202, a 1991 decision in which the court, by an
equally narrow vote, had dismissed a custody and visitation
petition from a lesbian co-parent.  The membership of the court has
changed since 1991, and one of the dissenting justices suggested
that this was the main reason for the changed outcome in the case. 
Appellate courts in several other states have rejected such
visitation petitions on standing grounds, although the New Mexico
Court of Appeals reversed a trial court dismissal of such a
petition in A.C. v. C.B., 829 P.2d 660 (1992), cert. denied, 827
P.2d 837 (N.M. 1992).

Sandra Lynne Holtzman and Elsbeth Knott met in February 1983 and
"shared a close, committed relationship for more than ten years. .
.  On September 15, 1984, they solemnized their commitment to each
other, exchanging vows and rings in a private ceremony."  They
decided to raise a child together by having Knott conceive through
donor insemination.  Their son was born on December 15, 1988. 
"Holtzman and Knott jointly selected a name for the baby, using
first and middle names from each of their families and a surname
which combined their last names.  Both women were named as the
child's parents at the child's dedication ceremony at their church. 
Holtzman's parents were recognized as the child's grandparents and
Holtzman's sister was formally named as his godmother."  This
family stayed together through a move from Boston to Madison,
Wisconsin, so Holtzman could attend law school there, but the
relationship later deteriorated and on January 1, 1993, Knott told
Holtzman "that their relationship was over," although "the two
women agreed that they would continue to live together in the home
for the child's sake."  This did not work out, however, and Knott
and the child moved out a few months later.  Holtzman attempted to
maintain contact with the child, but Knott terminated contact late
in August of 1993.  

Knott filed a court petition seeking an order restraining Holtzman
from attempting to contact the child.  This was subsequently
dismissed by stipulation, but Holtzman filed a custody petition on
September 16, 1993, and a visitation petition on September 21,
1993, and quickly moved for summary judgment. The trial judge
"reluctantly" granted the motion for summary judgment, feeling
bound by the Z.J.H. decision.  Holtzman sought direct appeal to the
state supreme court, which was granted, and a visitation order was
entered pending the outcome of the case.  

In her decision for the 4-member majority, Justice Abrahamson
agreed with the trial judge that the allegations in Holtzman's
complaint were insufficient to support her custody petition. 
Constitutional principles stand in the way of terminating the
custody of a biological parent who is not shown to be unfit, and
the court found that Holtzman's allegations about Knott did not
rise to this level.  The dissenting judges also agreed with this
part of the decision.  However, while also finding that Holtzman
did not have standing to petition for a visitation order under the
visitation statute, Wis. Stat. section 767.245, the provision under
which Holtzman had filed her petition, Abrahamson asserted that the
statute did not evince any legislative intent to "occupy the
field," thus leaving the state courts free to exercise their
residual equitable powers to entertain a visitation petition from
a non-parent.

Describing this judicial authority, Abrahamson set forth the
following summary before undertaking a lengthy analysis of
legislative history, statutory construction, and case law. 
"Finally, mindful of preserving a biological or adoptive parent's
constitutionally protected interests and the best interest of a
child, we conclude that a circuit court may determine whether
visitation is in a child's best interest if the petitioner first
proves that he or she has a parent-like relationship with the child
and that a significant triggering event justifies state
intervention in the child's relationship with a biological or
adoptive parent.  To meet these two requirements, the petitioner
must prove the component elements of each one."  In spelling out
the component elements, the court emphasizes the origin, nature and
quality of the relationship between the child and the petitioner,
and in effect identifies a situation such as that in this case as
a suitable "triggering event" for judicial intervention.

In his concurring opinion, Justice Bablitch emphasized the needs of
children living in non-traditional families when the families break
up.  "My focus is on the completely innocent victim in this case,
and the thousands of others like him: the children of dissolving
non-traditional relationships.  The issue is the best interests of
these children, and the role of the court in protecting them." 
Criticizing the dissenting opinions for leaving the courts
"powerless in the face of. . . legislative silence" about how to
deal with nontraditional families, Bablitch asserted scornfully:
"The dissents would have us believe that the legislature intends
these children to somehow engage in a societal Dickensian drift,
with both the children and possibly society paying what could be an
incalculable price for the errors of others.  I do not believe the
legislature could intend that harsh a result."  Bablitch also
emphasized that the court's opinion did not provide automatic
visitation rights; on remand, Holtzman would face a considerable
burden to prove the elements specified in Justice Abrahamson's
opinion.

Each of the dissenting justices wrote separately, although Justice
Day also joined Justice Steinmetz's dissent.  They insisted that
the visitation statute was, in common with the marriage statute,
the custody statute, and the adoption statute (which the court
recently construed to forbid adoption by a lesbian co-parent of her
partner's children), intended to occupy the field and oust the
courts of any traditional equitable powers they might have in the
field of family law.  They also emphasized U.S. Supreme Court cases
that identified strong parental rights of control over children in
the Due Process Clause of the 14th Amendment, and argued that the
majority's approach to the case violated the constitutional right
of Knott to determine with whom her child should associate.  The
dissents provide a roadmap for Knott's attorney, should Knott seek
further review of the decision in federal court.  The Washington
Blade reported July 7 that Knott's attorney intended to file an
action in federal district court, presumably seeking a declaration
of his client's constitutional rights to exclude biological
strangers from visitation with her child.  The attorney indicated
he might also file a petition with the U.S. Supreme Court.  * * * 
In a contrary ruling, the Boston Globe reported July 8 that
Strafford County, New Hampshire, Superior Court Judge Edward
Fitzgerald 3d ruled in Comeau v. Grondin that Joan Comeau could not
seek visitation rights with the 5-year-old child she was raising
with her former partner, Lucinda Grondin.  Comeau alleged that she
and Grondin had jointly decided to have the child through donor
insemination.  The ruling goes against the advice of the court-
appointed guardian.  The Globe quotes Fitzgerald's unpublished
decision as stating that the ruling was party based on Comeau's
"willingness to make this a `cause celebre' without regard to the
impact on the child."  Sounds to us like a bit of 1st Amendment
trouble there.  A.S.L.

D.C. Appeals Court Says Gay Couples Can Adopt Kids; N.Y. Court
Delays Decision

A panel of the District of Columbia Court of Appeals (the
equivalent of a state supreme court for Washington, D.C.) ruled 2-1
in In re: M.M.D. & B.H.M., Applicants, No. 94-FS-620 (June 30),
that unmarried couples, whether same-sex or opposite-sex, may
jointly adopt children consistent with the District's adoption law,
provided they are in "committed" relationships.  The lengthy
opinion for the panel by Judge John Ferren follows the lead of
state supreme courts in Vermont and Massachusetts in finding that
the lack of an express statutory authorization for such adoptions
is not fatal to the application, even though adoption, unknown to
the common law, is exclusively the creation of statute.  Ferren's
opinion drew a concurring opinion by Senior Judge Julia Mack, and
a short dissent from Judge Steadman asserting that it is for the
legislature, not the courts, to determine whether unmarried couples
can adopt.

The case involved a gay male couple, one of whom had adopted the
child at infancy.  In the pending proceeding, both men joined in a
new adoption application, with the adoptive parent expressly
consenting to his partner's new parental status.  The adoption
statute says that "any person" may apply to adopt a child, save
that if a married person applies, his or her spouse must join in
the application.  The statute further provides that upon approval
of an adoption, the parental rights and responsibilities of the
child's natural parents are terminated; a so-called "stepparent
exception" provides that the rights of a natural parent are not cut
off when the natural parent's new spouse adopts the parent's child. 
Some courts, including the trial judge in this case, have found
that this typical statutory scheme makes joint adoption by an
unmarried couple impossible, either because statutes that change
common law rules are to be "strictly construed" or that the law
would mandate a cut-off of the natural parent's rights, which is
not being sought by the applicants.

Ferren asserted that these conceptual problems disappear if one
treats the case as a joint application by the unmarried couple,
rather than an application by the parent's partner.  (The
Massachusetts Supreme Judicial Court took this route in its
decision approving "second parent" adoptions.)  Noting a very old
provision in the D.C. law that saying that "[w]ords importing the
singular . . . shall be held to include the plural" unless that
"construction would be unreasonable," Ferren concluded that the
authorization for "any person" to adopt should, where it is in the
best interest of the child, be construed to authorize that "any
persons" by able to apply as a couple.  Legislative history showed
no consideration of this question by Congress when it enacted
successive adoption laws for the District (most recently in 1954)
and the language and overall statutory scheme lends itself to this
construction, Ferren concluded, given the court's overall
obligation to attempt to effectuate the policy goals of the
statute.  Ferren identified the "paramount concern" of Congress to
be the "best interests of the prospective adoptee," and concluded
this could best be achieved by "a liberal, inclusionary reading of
the statute to the facts presented here."

The trial court had found that the adoption would be in the best
interests of the child, since both applicants are fit parents who
are already successfully parenting this child together and many
advantages in law and reality accruing to the child if it had two
legally recognized parents instead of one.  The trial court denied
the application, or so it said, only because it saw legal
impediments in the statute.  Thus, the court of appeals' remand to
the trial court to make a best interest determination should be
little more than a formality, given the trial court's earlier
findings.  

Judge Mack's concurrence will make this decision doubly important
when it is published, for she appended the full previously
unpublished decision of a different D.C. trial judge in In re
Petition for Adoption of Minor Child, No. A-8-4 (D.C.Super.Ct., May
4, 1995) to her opinion and it presumably will now be published as
part of this opinion by the court of appeals.  That decision by
Judge Brook Hedge sets for a concise analysis of the statutory
construction issues by comparison to Ferren's lengthy and
discursive discussion of principles of statutory interpretation.

The applicants are represented by Prof. Nancy D. Polikoff of
American University Law School, the nation's leading advocate and
legal scholar on the issues represented in this case, with amicus
assistance from the National Center for Lesbian Rights, Gay and
Lesbian Parents Coalition International, and the Gay and Lesbian
Parents Coalition of Metropolitan Washington.  The D.C. Corporation
Counsel's office also filed an amicus brief in support of the
applicants, whose petition was not formally opposed.  

Meanwhile, the N.Y. Court of Appeals recessed for the summer on
July 6 without deciding two pending appeals by unmarried couples
(one lesbian, the other heterosexual) whose adoption petitions were
denied by lower courts.  The cases were argued on June 5, the
lesbian couple in Matter of Dana being represented by Lambda Legal
Defense Fund Legal Director Beatrice Dohrn.  According to the
Albany Times Union (July 7), the court "made a rare point of
publicly announcing that it had not resolved the matter.  There was
no official explanation from the court on why it bothered to say
that a case had not been decided which would have been obvious
enough if the court had made no mention of the matter, and insiders
and longtime observers were unable to recall any similar instance." 
Sounds like they're having trouble with this one.  A.S.L.

California Supreme Court Rules on Hate Crimes Laws, Affirms Gay-
Bashing Conviction

In a pair of important 7-0 decisions, the California Supreme Court
has rejected constitutional challenges to several provisions of the
state's hate crimes laws, which forbid, inter alia, crimes
motivated by sexual orientation bias.  In re M.S., a Minor; People
v. M.S., 1995 WL 390976 (July 3); People v. Superior Court of San
Diego County, 1995 WL 389853 (July 3).  In the M.S. case, the court
affirmed convictions of two teen-agers who gay-bashed some gay men
in San Francisco's Castro District; Superior Court affirmed
convictions of several men who beat up a group of Mexican men in an
area where one of the defendants believed his wife had previously
been raped by a Mexican man.  In the course of upholding the laws,
the court placed several interpretive glosses on them, which
stimulated some concurring opinions critical of the court's
approach.

At issue in M.S. were Penal Code sections 422.6 and 422.7.  422.6
provides that "no person, whether or not acting under color of law,
shall by force or threat of force, willfully injure, intimidate,
interfere with, oppress, or threaten any other person in the free
exercise or enjoyment of any right or privilege secured to him or
her by the Constitution or laws of this state or by the
Constitution or laws of the United States because of the other
person's race, color, religion, ancestry, national origin, or
sexual orientation" and, after specifying penalties, provides that
"no person shall be convicted . . . based upon speech alone, except
upon a showing that the speech itself threatened violence against
a specific person or group of persons and that the defendant had
the apparent ability to carry out the threat." 422.7 provides for
penalty enhancement of crimes not covered by 422.6 if they are
"committed against the person or property of another for the
purpose of intimidating or interfering with" that person's rights,
then using the same language as quoted from 422.6 above.  The
defendants claimed that these provisions were unduly vague and
violated their free speech rights under the 1st Amendment, and also
argued that even if the statute were constitutional, it should be
construed to require the prosecutor to prove beyond reasonable
doubt that bias was the sole motivation for the crime.  (Part of
the defendants' case was that they were provoked into violence by
the victims.)  In rejecting these claims, Justice Werdegar found
that the prosecutor need only show that bias was a "substantial
factor" in the defendant's motivation, but also held that the
prosecutor must show that the defendant had a "specific intent" to
violate the rights of the victim.  This drew disagreement from
Justice Mosk in a brief concurrence, who opposed imposition of a
"specific intent" requirement as going beyond the appropriate
burden to be placed on the prosecution.  A lengthier concurring
opinion by Justice Kennard addressed the "substantial factor"
analysis, producing a lengthy discussion of tort principles being
incorporated by reference into the court's decision for dealing
with situations where there might be multiple factors leading to
commission of a crime.

At issue in Superior Court was section 422.75, which specifically
deals with penalty enhancement for bias-motivated felonies.  In
this case, the court found that the "specific intent" requirement
did not apply, but reiterated the "substantial factor" requirement
from the M.S. decision.

On balance, the court's interpretations of the various provisions
may make it somewhat harder to gain convictions for hate crimes in
non-felony cases, according to Justice Mosk's concurring opinion,
due to the burden in such cases of showing specific intent to
violate the victim's constitutional rights.  However, the adoption
of the "substantial factor" test instead of the "sole factor" test
advocated by the defendants may encourage prosecutors to use the
hate crimes law with less hesitation in felony cases, and relieves
the prosecution of a very difficult potential burden in non-felony
cases.  A.S.L.

Rhode Island Supreme Court Rejects Sodomy Challenge

The Rhode Island Supreme Court rejected an invitation from gay
legal groups to use a pending criminal appeal as a vehicle for
invalidating the state's sodomy law.  In State v. Lopes, 1995 WL
369600 (June 21), the state was appealing a trial judge's grant of
defendant Jorge Lopes' motion for "arrest of judgment" after Lopes
was convicted of two counts of "abominable and detestable crime
against nature" (yes, Rhode Island still has one of those ancient
pre-Model Penal Code sodomy laws).  

Lopes had been charged with first-degree sexual assault against a
woman, who claimed he forced her to engage in vaginal, oral and
anal sex.  Lopes conceded the sexual activity, but claimed it was
consensual.  The jury evidently believed Lopes, acquitting him on
the more serious assault charges, but convicting on consensual
sodomy, which was mentioned in the judge's jury charge as a lesser
included offense.  Lopes then argued that sentencing him would
violate his right of privacy and equal protection.  The trial
judge, concluding that under federal precedents it would be
unconstitutional to prosecute a married couple for engaging in
consensual sodomy, then reasoned that married and unmarried persons
"are similarly situated for purposes of equal-protection analysis.
. . [and] ruled that it would violate the equal-protection clause
to apply [the sodomy law] to defendant's conduct."  Numerous amici
filed briefs in support of Lopes, including Gay & Lesbian Advocates
& Defenders (Boston) and the national and state ACLU organizations.

Evidently, the court was irked that the amicus briefs discussed a
variety of legal theories that were not raised at trial, preserved
for review, or mentioned in the certiorari grant, and pointedly
commented that it could not consider the issue of the sodomy law as
applied to homosexuals because the pending case involved only
heterosexual conduct.  Quickly disposing of the appeal on the
merits, the court noted that the U.S. Supreme Court has never held
that sodomy laws could not be used to prosecute married couples,
and that its own past precedents had upheld the validity of
applying the sodomy law to consenting adult heterosexual couples. 
Thus, the trial court's decision on the motion was quashed and the
case remanded for sentencing of the defendant.  A.S.L.

10th Circuit Rules Against Phelps; Upholds Constitutionality of
Kansas Criminal Defamation Statute

Handing a setback to noted homophobe and anti-gay crusader Fred W.
Phelps, Sr., the U.S. Court of Appeals for the 10th Circuit ruled
that Kansas' criminal defamation statute could be constitutionally
construed, reversing the district court.  Phelps v. Hamilton, 1995
WL 406636 (July 11).  Phelps, noted for making outrageous
statements about gay people and their supporters, as well as
picketing funerals of people with AIDS, was charged with several
violations of the Kansas law by Topeka District Attorney Joan
Hamilton, who ran for office, in part, on a platform of going after
Phelps for his misdeeds.  Phelps and another man, Edward F. Engel,
who had been threatened with prosecution in the past and was allied
with Phelps in his anti-gay crusade, sued Hamilton in federal
court, seeking an injunction against the prosecution of Phelps and
a declaration that the Kansas law, both on its face and as applied
to Phelps, is unconstitutional.

Hamilton argued that the district court should abstain from
interfering in the state criminal proceeding, as per Younger v.
Harris, 401 U.S. 37 (1971).  Phelps argued that this case qualifies
for two of the recognized exceptions from Younger abstention
doctrine: that the prosecutions were commenced in bad faith or to
harass, or that they are based on a flagrantly and patently
unconstitutional statute.  The district court agreed that an
exception applied here and, ruling on the merits, held the statute
unconstitutionally abroad under the 1st Amendment.  The court of
appeals found that the district court incorrectly failed to require
Phelps to prove his allegations of bad faith and harassment and,
proceeding to the merits on Engel's claim, found that the statute
lent itself to a constitutional interpretation.  The main point of
contention was whether the statute requires a showing of actual
malice before somebody can be prosecuted for statements relating to
issues of public concern.  Although the statute does not spell out
such a requirement, the court found that it was enacted at a time
when the legislature could be presumed to be aware of U.S. Supreme
Court cases requiring such a showing for a criminal defamation
prosecution; furthermore, the Kansas Supreme Court, in another
context, had commented that the evidentiary standards for civil and
criminal defamation were the same in Kansas, and several cases
established an actual malice standard for civil defamation based on
speech relating to issues of public concern.  

Consequently, the case was remanded for the district court to make
appropriate findings as to whether Younger abstention applies; if
it does not, the district court can then proceed to the merits of
Phelps' claim that the particular application of the statute to him
in light of the statements charged against him would be
unconstitutional.  (Those interested in the disgusting diatribes of
which Phelps is accused are referred to footnote 6 of the opinion. 
We can't print them here because we are a family publication.) 
A.S.L.

9th Circuit Supports ACT-UP Claims for Strip Searches

A unanimous 9th Circuit panel ruled in ACT UP!/Portland v. Bagley,
No. 93-35592 (June 22) (not released for publication) that a group
of Act Up members subjected to strip searches when they were
arrested during a demonstration at the federal building in
Portland, Oregon, may pursue damage claims against federal agents
for violations of their constitutional rights, as well as tort
claims against the government under the Federal Torts Claims Act. 
The appellate panel determined that the federal agents' claims of
qualified immunity could not be determined on summary judgment,
because there was a plausible argument by the plaintiffs that,
based on established 9th Circuit precedents at the time, the
officers were violating well-established constitutional rights
under the 4th Amendment by subjecting the plaintiffs to strip
searches without a reasonable basis for believing that they might
be "carrying or concealing contraband."  In addition, the six male
plaintiffs contended their rights of privacy under Oregon tort law
had been violated by the agents because the strip searches were
carried out in view of other prisoners at a time when facilities
were available for private strip searches, and asserted a damage
claim against the government under the FTCA.  The appellate panel
found that there was a plausible basis for asserting jurisdiction
on the claim, which requires a trial to determine the factual issue
of available facilities.  The plaintiffs are represented by Lambda
Legal Defense & Education Fund, local counsel Tom Steenson of
Steenson & Schuman in Portland, and cooperating attorneys at Brown
Raysman & Millstein in New York.  A.S.L.

D.C. Circuit Upholds Cable TV Restrictions

Reversing a panel decision, the D.C. Circuit en banc upheld a
federal law and FCC rules restricting "indecent" programming on
cable TV.  Alliance for Community Media v. FCC, 1995 WL 331052
(June 6).  Petitioners, representatives of cable programmers and
viewers, challenged three sections of the Consumer Protection and
Competition Act of 1992 governing indecent programming on leased
access channels (on which cable operators lease time to independent
programmers) and PEG (Public, Educational and Government) access
channels.  Sec. 10(a) authorizes cable operators to ban indecent
programming from leased access channels.  Sec. 10(b) requires cable
operators carrying indecent leased access programming to restrict
it to special channels that are blocked until a customer requests
access; programmers must notify cable operators if programming is
indecent.  Sec. 10(c) mirrors sec. 10(a), but applies to PEG access
channels instead of leased access.  The law also restricts
programming that is obscene or advocates unlawful conduct, but the
court observed that the former lacks constitutional protection and
the FCC regulations had defined the latter to include only material
that is not constitutionally protected.  The petitioners claimed
that the restrictions on
indecent programming violated their First Amendment rights.

Writing for the majority, Judge Randolph began his analysis with
secs. 10(a) and 10(c), holding that allowing private companies to
reject certain programs did not make those companies state actors,
and that without state action the 1st Amendment was not implicated. 
Turning to sec. 10(b), Randolph wrote that the blocking requirement
was the least restrictive means to accomplish Congress's
constitutionally permissible goal of protecting children from
"adult" programming; the court noted that requesting access to
blocked channels is only a small burden, given that federal law
bars cable operators from disclosing subscribers' selections.

Dissenting, Judge Wald pointed out that "indecent" speech is
constitutionally-protected because it includes material with
artistic, scientific, or political merit, such as programs about
AIDS or the Mapplethorpe controversy.  Quoting Jesse Helms, chief
sponsor of the challenged sections, Wald maintained that
legislation with the avowed purpose and effect of restricting a
content-defined class of constitutionally-protected speech is state
action implicating the 1st Amendment.  Arguing that the legislation
would plainly be unconstitutional if applied to a different
content-defined class of protected speech, like programs about
military spending, Wald wrote that the legislation impermissibly
discriminates against indecent speech, and the stigma of
government-mandated blocking may deter viewers from requesting
access.  Adding that content-based speech regulations are subject
to strict scrutiny, and therefore must be the least restrictive
means to achieve a compelling government interest, Wald asserted
that the ban-or-block requirement in secs. 10(a) and 10(b) is more
restrictive than comparably effective alternatives, and Supreme
Court precedent favors a less restrictive approach even if it might
be less effective.  Lastly, Wald wrote that sec. 10(c) is both
overinclusive and underinclusive, as cable operators that ban
indecency withhold it from adults and children alike, while
operators that carry indecency still subject children to the harm
feared by the government. 

Chief Judge Edwards dissented in part, concluding that secs. 10(a)
and 10(c) are constitutional by themselves, but that secs. 10(a)
and 10(b) are unconstitutional in tandem because the administrative
costs of the blocking requirement amount to a ban on
constitutionally protected speech; Edwards also observed that the
government had produced no evidence to justify its fear that
indecent programming would harm children.  Judge Rogers also
dissented in part, arguing that sec. 10(b) is unconstitutional and
that the court should sever it from the rest of the statute,
leaving secs. 10(a) and 10(c) intact.  O.R.D.

Newspaper Columnist Escapes Liability for Bashing Anti-Gay
Politician

Reversing the intermediate court of appeals, the Ohio Supreme Court
upheld dismissal of a state senate candidate's claims for
defamation and intentional and negligent infliction of emotional
distress against a newspaper that published a column critical of
the candidate's positions on gay issues.  Vail v. The Plain Dealer
Publishing Company, 1995 WL 302393 (May 31).  The court was
unanimous in its judgment, although not in the rationale for the
judgment.     

The columnist described the candidate's campaign as involving
"gay-bashing" and consisting of "an anti-homosexual diatribe."  The
columnist also wrote that the candidate did not like gay people. 
Reasoning that the Ohio constitution, unlike the federal
constitution, rendered opinion nonactionable in a defamation
action, the court determined that the relevant inquiry was whether
the challenged statements constituted expressions of opinion,
rather than whether the statements were capable of being proven
false. 

In reaching this result, and thereby distinguishing Milkovich v.
Lorain Journal Co., 497 U.S. 1 (1990), the court relied on section
11, article 1, of the Ohio constitution, which provides that
"[e]very citizen may freely speak, write, and publish his
sentiments on all subjects, being responsible for the abuse of the
right; and no law shall be passed to restrain or abridge the
liberty of speech, or of the press."  Applying a four-part test for
the assessment of the status of a statement as opinion, the court
reasoned that (1) the general context in which the statements were
made was opinion, as the column was titled "Commentary" and
appeared on a page labeled "Forum"; (2) the general tenor of the
column was sarcastic, which was characteristic of persuasive speech
rather than factual reporting; (3) the specific language lacked
precise meaning; and (4) the statements did not imply the
columnist's possession of unstated facts buttressing his opinion. 
The court therefore determined that, based on the totality of the
circumstances, an ordinary reader would accept the column as
opinion rather than fact.  R.M.

Federal District Courts Divided on Same-Sex Harassment Claims

Two recent Title VII cases involving allegations of same-sex sexual
harassment yielded differing results.  In one case the allegations
of same-sex harassment involved unwelcome sexual advances, requests
for sexual favors, etc., and the court found a cognizable claim
under Title VII.  Griffith v. Keystone Steel and Wire, 1995 WL
32651 (C.D. Ill., May 12).  In another case the allegations of
same-sex harassment involved unwelcome name-calling, in which a
male co-worker continuously taunted another male co-worker by
referring to him as, among other names, a "dick-sucker," and the
claim was dismissed because the harassment did not involve a sexual
advance.  Vandeventer v. Wabash National Corporation, 1995 WL
317028 (N.D. Ind., May 23).

In Griffith, the court, in an opinion written by Justice Mihm,
denied defendant's motion to dismiss and held that Title VII does
not bar a same-sex harassment suit.  Plaintiff Roy Griffith, a
maintenance electrician, alleged that for several months he was
subjected to sexually suggestive comments and improper physical
sexual contacts by his foreman, Charlie Cutting, under the
supervision of or knowledge of a number of other foremen,
supervisors, or managers.  In rejecting defendant's motion to
dismiss, Judge Mihm first noted that the 7th Circuit, in
Baskerville v. Culligan Intern. Co., 1995 WL 115897 (7th Cir.,
March 20), recently indicated in dicta that it would not exclude
the possibility that sexual harassment of men by other men, or
women by other women would be actionable in appropriate cases. 
Second, Mihm found that the language of Title VII does not restrict
its prohibition against discrimination to employees of the opposite
sex.  Finally, in addressing findings of other courts that Title
VII was concerned with a "dominant" gender's atmosphere of
oppression [e.g. Goluszek v. Smith, 697 F. Supp 1452 (N.D. Ill.
1988)] and that whether a male plaintiff could show that his work
environment was "anti-male" was relevant [Vandeventer v. Wabash
Nat. Corp., 867 F. Supp. 790 (N.D. Ind. 1994)], Mihm held that
although the number of male and female workers may be relevant in
assessing the impact of sexual harassment, such a showing was not
necessary in order to prevail on a claim of same-sex sexual
harassment.  According to Mihm, plaintiff must show that "but for
the fact of his sex, [he] would not have been the object of
harassment."  Since plaintiff's complaint alleged that he was
subjected to unwelcome sexual harassment because of his sex, and
that such harassment was not directed at female employees, Mihm
denied defendant's motion to dismiss.

In Vandeventer, the court assessed (on a motion for
reconsideration) a claim of same-sex sexual harassment in which the
plaintiff alleged that his male co-worker harassed him by calling
him a "dick-sucker" and a "homosexual."  Rejecting plaintiff's
claim under Title VII, Judge Sharp stressed that "(d)iscrimination
because of homosexuality is not covered by Title VII. . .  People
who are harassed because they are homosexual (or are perceived as
homosexual) are not protected by Title VII any more than are people
who are harassed for having brown eyes.  However, it is imperative
to note that being homosexual does not deprive someone of
protection from sexual harassment under Title VII, it is merely
irrelevant to it.  The issue is and remains whether one is
discriminated against because of one's gender.  If a male
homosexual is discriminated against because he is male, such
violates Title VII regardless of his particular sexual
orientation."

Unlike the Griffith court, Judge Sharp found that an important
element of plaintiff's claim under Title VII would be to show that
there was an atmosphere in the workplace that was "anti-male" and
that he was being subjected to sexual harassment because he was
male.  "It is being the victim of anti-male or anti-female bias
that forms the basis of a Title VII sexual harassment claim, not
simply being exposed to `sexual' type comments or behavior." 
According to Sharp, "(w)hile the epithet used and the taunting had
a `sexual' component, as do most expletives, the crucial point is
that the `harasser' was not aiming expletives at the victim because
of the victim's maleness.  He was taunting the victim because he
did not like him; [plaintiff's] gender was irrelevant."  Since
Sharp found that there was no evidence that the abuse was based on
disdain for the plaintiff's gender, there was no cause of action
under Title VII.  M.B.

Kentucky Supreme Court Upholds Manslaughter Conviction, Rejecting
Appeal Focused on Evidence of Defendant's Lesbian Activities

The Kentucky Supreme Court held that the prosecutor's questions of
the defendant on cross-examination about her lesbian relationship
with her cousin did not taint her manslaughter conviction in the
death of her elderly husband.  Smith v. Commonwealth, 1995 WL
346997 (June 8).  Brenda Smith, 21, was charged with beating to
death her 72-year-old husband, Simson "Smitty" Smith.  During her
direct testimony, she made numerous references to her distant
cousin Laura, who was living in the house with the Smiths, which
lent themselves to the inference that Brenda had a relationship
with Laura that was upsetting to Smitty.  On cross-examination, the
state elicited the statement that Brenda and Laura had a sexual
relationship, and that Brenda had sex with other men and women
during her marriage to Smitty.  On appeal, Brenda alleged that this
was prejudicial and tainted the trial.  The Supreme Court
disagreed, finding that the information appeared relevant and that
the prosecutor's questions were within proper scope of cross-
examination in light of Brenda's testimony about Laura during
direct examination.  

Of the eight justices sitting on the appeal, three dissented in an
opinion by Chief Justice Stephens, who asserted that the majority
was misrepresenting the direct examination.  "Since the testimony
from both parties clearly indicates that Laura was not implicated
in the murder of Smitty, allowing the testimony in regarding
Brenda's sexual orientation could only serve an impeachment
purpose.  `No authority . . . suggests that homosexuality indicates
a propensity to disregard the obligation of an oath.'. . .  [E]ven
if one could hold that the door had been opened to the admission of
this evidence, the repeated questions asked by the Commonwealth
regarding Brenda's sexual preferences and sexual relationships with
women other than Laura Meade reached a point where they were far
more prejudicial than probative.  On these grounds alone, a
reversal is warranted."  Two other issues not related to Brenda's
sexual orientation were also raised on appeal and rejected by the
court, with the same three justices dissenting.  A.S.L.

Texas Appeals Court Finds State Constitutional Protection for
Police Officer's Off-Duty Sexual Conduct

Citing prior decisions involving a lesbian applicant to the police
force and challenges to the Texas sodomy law, the Texas Court of
Appeals in Dallas ruled May 25 that the City of Sherman, Texas,
violated the state constitutional rights of Otis Henry, a member of
the city police force, when the chief refused to promote Henry
because he was having an affair with Kelly Olsen, another member of
the force who was secretly married to Tom Pollard, also a member of
the force.  City of Sherman v. Henry, 1995 WL 316535.  Olsen and
Pollard kept their marriage secret to avoid the department's
nepotism policy.  When Henry started dating Olsen, he had no idea
about her marriage (which was then "on the rocks") and she told him
she wasn't married.  Henry applied for a promotion to sergeant and
was at the top of the list based on his qualifications.  The chief
asked a lieutenant to check out rumors that Henry was having an
affair with Olsen.  Pollard ended up being the one who reported
about it to the chief, at which time the fact of the Pollard-Olsen
marriage also came to light.  The chief then said he could not
promote Henry, solely because of this affair and its effect on
morale in the department.

The trial court ruled against the police department on
constitutional grounds, and the Court of Appeals affirmed in an
opinion by Chief Justice Linda Thomas.  Asserting that the Texas
Supreme Court has recognized a state constitutional right of
privacy broader than the federal privacy right, and noting that in
City of Dallas v. England, 846 S.W.2d 957 (1993) and State v.
Morales, 826 S.W.2d 201 (1992), rev'd on other grounds, 869 S.W.2d
941 (1994), the court of appeals had found that this broad privacy
right applied to consensual sexual conduct between adults, the
court held that the police department could only justify its denial
of promotion to Henry if it had a compelling interest and that the
policy it was applying was narrowly tailored to advance that
interest.  In this case, Henry's private sexual conduct was lawful
and there was ample evidence in the record supporting the trial
court's conclusion that departmental morale had not been negatively
affected.  The court concluded that the police department did not
meet its burden, and affirmed the trial court.  A.S.L.

Alabama Appeals Court Grants New Custody Hearing to Lesbian Mother
Whose Child Had Been Given to Grandparents

Although Alabama has a sodomy law and strong anti-gay sentiment in
its legislature, its Court of Civil Appeals recently reversed an
award of custody to a lesbian mother's parents because the
grandparents had not defeated the presumption in favor of the
natural mother.  In Hembree v. Hembree, 1995 WL 326951 (June 2), a
lower court had awarded temporary custody and then permanent
custody to the child's maternal grandparents.  On appeal, the court
reversed, concluding that the grandparents had not defeated the
mother's "prima facie right to custody of . . . her child in a
custody dispute between a parent and a nonparent."  

In order to defeat such a presumption, the grandparents would have
to prove either that the mother was unfit or that she had
voluntarily forfeited the child.  The court held that the fact that
the mother and the child had lived with the grandparents and that
the mother had left the child in the grandparents' care did not
support a finding that she had relinquished custody.  Instead, the
court noted that <160>the mother evidenced her care of the minor
child by enlisting the aid of the [grandparents] during difficult
times."  Furthermore, the court noted that since there was no
evidence that the mother was unfit (thus implicitly rejecting any
argument that a lesbian mother is per se unfit), the grandparents
had not met their burden defeating the presumption favoring
parental custody.  The court therefore reversed the trial court's
award of custody to the grandparents, remanding the case for the
trial court to consider the evidence in light of the proper
standard of proof.  C.B.R.

Arkansas Appeals Court Affirms Loss for Lesbian Mother in Custody
Case

Finding that the chancellor (trial judge) had not improperly based
his decision on the mother's sexual orientation, the Arkansas Court
of Appeals affirmed a decision to switch custody of two minor
children from their lesbian mother to their non-gay father.  Larson
v. Larson, 1995 WL 407108 (July 5).  The homophobic subtext of the
ruling is laid bare by quotations from the chancellor's decision,
and a strange concurring decision by Judge Rogers, making clear
that the chancellor's opinion is rife with disapproval of the
mother's "lifestyle."

Michael and Jean Larson married in 1979 and divorced in 1988, with
Jean awarded primary custody.  In 1989, Jean secured a contempt
order against Michael for having his girlfriend present in the home
in an "immoral relationship" while the children were visiting; the
court ordered Michael to keep his girlfriend out of the house when
the children were there.  In December 1992, the son was sent to
live with his father by agreement of the parties.  In May 1993,
Michael filed a petition for custody.  The next month, Jean and her
lover, Sherry Callendar, unsuccessfully sought a marriage license
from the Benton County Clerk.  After holding hearings on Michael's
petition, the chancellor changed primary custody of both children
to Michael.

On appeal, Jean argued that the chancellor found her "unfit" based
"solely on her homosexuality."  However, the chancellor's own
decision refuses to frame the issues in those terms, insisting that
"the true substantive issue is whether or not it is in the best
interest of the children to reside with the mother or the father." 
According to Chief Judge Jennings' decision for the court, "The
chancellor did express concern about the effect of Mrs. Larson's
lifestyle and the attendant publicity on the children.  We find no
fault with this concern, particularly in view of the testimony that
Mikey was worried about the possible effect on his younger sister. 
Even so, it is apparent that the chancellor's primary focus in this
regard was on appellant's conduct, not merely her status or sexual
preference.  We simply do not agree that appellant's sexual
preference was the sole basis for the chancellor's decision."  In
other words, here is yet another case where the court, seizing on
the status/conduct distinction, says it is not disqualifying all
gays from child custody, just those who want to live with their
lovers in a familial relationship that includes their children.  

Jean also argued that the chancellor failed to find the requisite
"change in circumstances" that is normally required to upset an
initial custody award.  Jennings rejected this assertion, citing
the following findings by the trial court: "Among the changes are
the fact that appellant and Ms. Callendar had, while living
together, engaged in sexual relations when the children were at
home;  that Mindy sometimes slept between the appellant and Ms.
Callendar;  that Mikey had gone to live with his father by
agreement; and appellant's ambivalent attitude as to her desire for
custody of Mikey."  Jennings also called "appropriate" the
chancellor's concern about keeping the two children together in one
home.  The court also found "no error" in the chancellor's finding
that Jean and Sherry engaged in "deviant sexual activity."

Rogers, concurring, observed that "the chancellor's own
condemnation of appellant's sexual preference is apparent from his
written word.  In fact, however, the chancellor focused on the
relative faults of both parties.  It is because of the comparative
reasoning employed by the chancellor and its disparaging tone that
I have some hesitation in affirming the decision.  Such reasoning
comes perilously close to basing a decision on punitive grounds
instead of properly focusing on the welfare and emotional well-
being of the children."  However, Rogers concluded that in light of
the significant deference normally accorded the chancellor in such
cases, the decision was not "clearly erroneous" and should be
affirmed.  A.S.L.

Iowa Appeals Court Rules Against Lesbian Mother in Custody Case;
Claims Sexual Orientation Not An Issue

In Cupples v. Cupples, 1995 WL 316824 (Mar. 30), the Court of
Appeals of Iowa affirmed the award of custody to a non-gay father
over the lesbian mother.  Although recognizing that the father had
"taken every opportunity at trial to introduce evidence pertaining
to [the mother's] sexual orientation," the court insisted that the
"the district court properly saw [the mother's] sexual orientation
as a non-issue and focused its decision on the relative parenting
abilities" of both parents.  While the record disclosed that both
parents had histories of substance abuse, the court affirmed the
award of custody to the father relying upon testimony that one of
the children had been seriously abused while in the care of the
mother and that the mother had plead guilty to two charges, one for
disorderly conduct in early 1994, and one for driving under the
influence in 1993.  Although the father had admitted his prior use
of marijuana, the court discounted his unlawful behavior since he
denied any present use and tested negative during the trial.  After
concluding that while the mother "has a demonstrated ability to
care for the children, she also has a history of law-breaking or
impulsive conduct which raises serious questions about her
maturity," the court affirmed the award of custody to the father.
Additionally, reversing an award of a $2000 lien to the mother for
the home which was awarded to the father, the court held that it
was inequitable under the circumstances since the father's mother
had contributed the $4000 down payment and it was unlikely he could
pay the lien while raising three small children.  C.B.R.

New Jersey Appeals Court Says "Sexual Exhibitionist" May Not
Proceed Anonymously in Discrimination Suit

Affirming a trial court dismissal of a complaint, the New Jersey
Appellate Division ruled in A.B.C. v. XYZ Corporation, 1995 WL
364096 (June 15), that a man who was discharged for sexual
misconduct while he was supposed to be attending a company-paid
business seminar could not proceed anonymously in his subsequent
suit against the company charging disability discrimination.  In a
per curiam opinion, the court stated its agreement with the trial
judge that "society's interest in open judicial proceedings
outweighed any privacy interest plaintiff had in proceeding
anonymously. . .  We agree with the Law Division judge that the
right of the public, as well as that of defendants, to know the
identity of the parties in public court proceedings in a civil case
for money damages outweighs any claim of this plaintiff to
anonymity.  The trial judge indicated that the definition of
`handicapped' in the LAD `appears broad enough to include mental
illness of the psychosexual variety.'  We have serious doubts about
this but need not resolve it because the trial judge dismissed on
procedural grounds" (i.e., the plaintiff's refusal to proceed other
than anonymously).  The court held that the plaintiff had
improperly relied on a New York federal case, Doe v. City of New
York, 15 F.3d 264 (2nd Cir. 1994), where the court found that a
complainant with AIDS at the NYC Human Rights Commission was
entitled to damages because of a violation of an agreement with the
agency allowing him to proceed anonymously.  The court
distinguished Doe as inapplicable due to the existence of a
confidentiality procedure under the New York Human Rights
ordinance.  A.S.L.

Alabama Appeals Court Affirms Murder Verdict

The conviction of an Alabama man twice found guilty of killing a
Catholic priest will stand, ruled the Court of Criminal Appeals of
Alabama on June 16, because the testimony offered by the
defendant's teenage same-sex companion did not raise issues of
collateral estoppel or double jeopardy. In Leitner v. Alabama, 1995
WL 358910, the court held that appellant David Thomas Leitner
cannot claim that the testimony of Gregory Scott Little, who lived
with Leitner, barred relitigation of issues relating to the murder
of Francis Craven, a parish priest who had befriended Little.

Little was a 16-year-old prostitute in Atlanta when he met Leitner. 
Leitner asked Little to accompany him to Guntersville, Alabama, and
offered to support him. Some time later, Leitner married an elderly
neighbor, but continued to live with Little and eventually adopted
him. They came to know and socialize with Craven, the priest at the
local church. Craven taught Little to drive and helped him obtain
a driver's license.  Leitner, accompanied by Little, lured Craven
to a remote spot in Tuscaloosa County and accused Craven of having
a sexual relationship with Little. Both Little and Craven denied
Leitner's accusation. Leitner then hit Craven on the head with a
metal pipe, doused him with gasoline, and set him on fire. Little
drove Leitner's van away from the crime scene.

When the Court of Criminal Appeals overturned Leitner's first
conviction, it noted, "Only Little's story linked the appellant
Leitner to Craven's murder." Leitner claimed this was a
determination of an issue of ultimate fact that Little's testimony
was not corroborated, and so the state was barred from relitigating
the issue at the second trial.  Rejecting Leitner's argument, the
court noted that it had made "no determination" of evidentiary
insufficiency. The reversal of the first conviction was based on
trial error, and did not touch on the question of whether Little
was an accomplice.  M.N.S.

Federal Court Refuses to Dismiss Inmate's 8th Amendment Claim of
Sexual Harassment and Coercion

The U.S. District Court for the District of Columbia in Thomas  v.
District of Columbia and Sgt. Ingram, 1995 WL 319083 (May 23),
denied the defendants' motions either to award them summary
judgment or to dismiss the 8th Amendment claim by an inmate of the
maximum security facility in Lorton, Virginia.  The plaintiff
alleged that he repeatedly informed prison officials that Sgt.
Ingram sexually harassed him by forcibly touching his penis and
incited other inmates to harass him by spreading rumors that he was
gay and that he had informed on co-defendants.  

The court found that the plaintiff had met the two-pronged standard
under Hudson v. McMillan, 503 U.S. 1 (1992), required of 8th
Amendment claims.  Under the objective prong, the court found that
"[s]exual assault, coercion and harassment of the sort alleged by
plaintiff violate contemporary standards of decency and can cause
severe physical and psychological harm."  The court also noted that
few acts could incite a prison population more against another
inmate than revealing that he was gay or had informed on
co-defendants.  The plaintiff met the subjective inquiry because
"[w]here no legitimate law enforcement or penological purpose can
be inferred from the defendant's alleged conduct, the harassment
itself may also be sufficient evidence of a malicious and sadistic
state of mind."   

The court also found that the District of Columbia could be liable
because the allegations, if true, demonstrated a substantial risk
of serious bodily harm to which prison officials had been
deliberately indifferent.  The court rejected the District's
attempt to demonstrate that it could not be liable since its
regulations expressly forbid such conduct by prison guards and thus
there was no unconstitutional custom or practice. "While the
regulations may exist, violations of them, or a pattern of such
violations, may themselves be a practice or custom."   

The court rejected Sgt. Ingram's attempted to invoke qualified
immunity.  Under Harlow v. Fitzgerald, 457 U.S. 800 (1982),
government officials are not entitled to qualified immunity in
their personal capacities when they violate clearly established
constitutional or statutory rights of which a reasonable person
would have been aware.  The court concluded that "any reasonable
prison official would have known that to try to force an unwanted
and prohibited sexual act on an inmate is objectively unreasonable
and in violation of the inmate's rights."  M.S.R.

Louisiana Supreme Court Reverses Murder Conviction and Remands for
Evidence About Gay Boarder

The Louisiana Supreme Court has reversed the manslaughter
conviction of Patricia van Winkle in the death of her 12-year-old
son, Patrick, and remanded the case for evidence about the sexual
proclivities of Darrell Hurst, a 20-year old man who rented a room
in van Winkle's house.  State v. Van Winkle, 1995 WL 394495 (June
30).  A jury convicted Patricia of murdering her young son based
largely on circumstantial evidence.  Hurst was a witness at the
murder trial, testifying to having heard various noises coming from
the boy's bedroom that would be consistent with the prosecution's
theory.  The trial judge prohibited the defense from pursuing a
line of questioning about Hurst's sexual orientation or activities,
thus quashing a defense theory that Hurst and a partner he picked
up at a gay "hustler" bar had sexually assaulted and murdered the
boy.  (An autopsy found seminal fluid but no semen in the boy's
anus.)  The state supreme court found that the trial judge had
improperly excluded potentially relevant evidence, and that this
was not a harmless error: "Given the equivocal nature of Ms. Van
Winkle's statements and of the forensic evidence, the State's case
was circumstantial; the defense theory, if properly presented, may
well have been sufficient to plant reasonable doubt in the jury's
mind."  A.S.L.

California Supreme Court Finds Country Club Subject to Unruh Civil
Rights Act

The California Supreme Court ruled June 29 that a large country
club which derives revenue from business dealings with non-members
is subject to the prohibition of discrimination by places of public
accommodation under the state's Unruh Civil Rights Act.  Warfield
v. Peninsula Golf & Country Club, 1995 WL 391179.  The only
dissenting voice was that of Chief Justice Lucas, who argued that
the legislature never intended to subject private country clubs to
the Unruh Act.  The case arose when the board of directors of the
club refused to honor a divorce settlement that awarded an existing
family membership in the club to the ex-wife; club rules provided
that only men could be full members.  Although the club offered the
ex-wife a different class of membership with restricted club
privileges, she declined what she described as "second class
membership" and sued under the Act.  The court disagreed with the
plaintiff's argument that all large country clubs should be
considered places of public accommodation, but agreed that this 700
member club, which derived significant revenue from dealings with
non-members (and also permitted area high school golf teams to
practice on the grounds) was clearly a public accommodation.  The
scope of the public accommodations provisions of the Unruh Act is
of significance to gay litigants in a variety of contexts,
including pending litigation against the Boy Scouts of America for
excluding openly gay people from membership or leadership roles. 
The ACLU Lesbian & Gay Rights Chapter in Los Angeles filed an
amicus brief in the case on behalf of the plaintiff.  A.S.L.

Texas Appeals Court Rejects Challenge to Dallas Sexually-Oriented
Business Ordinance

The owner of a topless bar in Dallas was unsuccessful in
challenging the constitutionality of a city zoning ordinance under
which he was convicted.  Messina v. State, 1995 WL 398327 (Tex.
App., Dallas, July 7).  The ordinance defines such a business,
inter alia, as one that features persons performing in a "state of
nudity", which includes dress that fails to opaquely cover the
areola of the female breast.  Alan Messina was found guilty in
municipal court of operating such an establishment within 1000 feet
of a public park in a residential area.  He raised a state equal
protection challenge, arguing that the ordinance discriminated on
the basis of sex by focusing on the female breast and treating it
differently from the male breast.  The court was not amused,
pointing out a prior decision in which such a challenge had been
rejected by the same appeals court.  Messina relied on a decision
of a different Texas appeals court, which had rejected the argument
that it could justify differential treatment of male and female
nudity solely on the basis of judicial notice or demonstrable
anatomical difference.  The court's decision drew dissents from
three judges of the 8-member bench.  Dissenting Justice Witham
argued that the city had failed to present evidence justifying the
differential treatment and that reliance on stare decisis or
judicial notice was insufficient in a case arising under the state
constitution's equal rights amendment, which requires strict
scrutiny of any differential treatment on the basis of sex.  A.S.L.

Broward County Enacts Rights Ordinance

By a 6-1 vote, the commissioners of Broward County, Florida, passed
a measure June 13 that bans discrimination on the basis of sexual
orientation.  The vote came at a stormy public session, with
speakers reminding the commissioners that Broward voters rejected
a proposed gay rights ordinance in a referendum vote in 1990 by a
margin of 3-to-2.  Gay rights advocates in the county initially
sought a new referendum, but then changed their strategy and
successfully lobbied the commission.  Opponents vowed to seek a
repeal referendum.  Sun Sentinel, June 14.  A.S.L.

Jury Award in Gay-Bashing Case

We previously reported that the Texas Court of Appeals ruled May 25
that the mother of a teenage gay-basher was not liable in tort for
the murder in which her son participated. Rodriguez v. Spencer,
1995 WL 315533.  The San Francisco Sentinel reported May 24 that a
Houston jury has awarded the victim's estate $10.5 million in civil
damages against the son, Brian Spake, now 21, for gross negligence
in causing the death of Paul Broussard.  Spake testified that he
kicked Broussard, who was stabbed to death by another youth,
Christopher Buice, who received a 45 year prison term for his part
in the incident in a previous criminal trial.  A.S.L.

Domestic Partnership & Marriage Updates

More employers reported to have extended domestic partnership
benefits eligibility for their employees: The law firm of Anderson
Kill Olick & Oshinsky, P.C., in New York City, provides domestic
partnership employee benefits. * * *  Coors Brewing Company has
responded to lobbying from its lesbian/gay employees group (known
as "Lager") by adopting a full domestic partnership benefits plan,
according to a July 8 report in The New York Times. * * *
Southwestern University School of Law extended benefits eligibility
to its staff effective June 1, using CIGNA as its health insurance
carrier. * * * American President Lines, a major world-wide
shipping company, has agreed to include domestic partnership
benefits coverage in a new collective bargaining agreement that
goes into effect in January, 1996. * * * Local 226 of the Culinary
Workers Union in Las Vegas reported reaching agreement with Nevada
hotel employers on including same-sex partners under pension
benefit plans on the same basis as employee's spouses; the union
also reported obtaining sexual orientation non-discrimination
language in all of its ratified contracts.  

The California State Bar reached an agreement with Blue Cross of
California to add domestic partnership coverage for insurance plans
made available to the Bar's members.  This is the first state bar
association to provide such a benefit, which is available for both
same-sex and opposite sex domestic partners.  Washington Blade,
July 7.

West Virginia University President Neil Bucklew's attempt to
implement a limited domestic partnership policy was suspended by
University Chancellor Charles Manning to give the board of trustees
an opportunity to consider it.  On July 7, the board's Social
Justice Committee voted 4-1 to recommend continuing the suspension. 
Most committee members voiced doubt about the legal authority of
the university to recognize domestic partners without legislative
approval, although the University's Associate General Counsel, Bill
Hutchens, argued that the limited benefits (which do not include
insurance) were within the administrative discretion of the
university.  Pittsburgh Post-Gazette, July 8. The timorous
administrators may have been reacting to a threat by a state
legislator to bring a lawsuit against the University.  The
Advocate, July 11.  

The Capital Times in Madison, Wisconsin, reported June 16 that
State Representative Tammy Baldwin, an openly lesbian elected
official, plans to introduce both a same-sex marriage bill and a
domestic partnership policy bill in the state legislature. 
Wisconsin is a non-sodomy law jurisdiction that bans sexual
orientation discrimination.  However, its highest court ruled last
year that the domestic partner of a parent cannot adopt the
parent's child, although it ruled recently (see related story) that
a co-parent could seek child visitation after the break-up of a
same-sex relationship.

The Ithaca, New York, Common Council passed a resolution supporting
the concept of same-sex marriage, and Mayor Benjamin Nichols
announced he was considering ordering the city clerk to issue a
marriage license to Toshav Greene and Phillip Storrs, a same-sex
couple seeking such a license who had been rejected by the clerk. 
The City Attorney, Charles Guttman, also favors issuing the
license, but is researching the question whether the city can issue
such a license consistent with state law.  

EPIC-MRA-Mitchell Research, a public opinion polling firm,
announced that one-third of the respondents (1000 registered
voters) in a national poll supported letting same-sex couples
marry.  Younger voters, those with higher incomes, and those with
more education were more likely to approve of such marriages.
A.S.L.

Clinton Appoints Avowed Heterosexual As Liaison To Gay Community

In the wake of embarrassment and outrage when White House security
guards wore rubber gloves at a reception for lesbian and gay
elected officials on June 13, the Clinton Administration announced
the appointment of Marsha Scott, a deputy assistant to the
President and an avowed heterosexual, to be the White House liaison
to the lesbian and gay community.  Scott is the first such person
ever to be designated for such a position in the White House. 
Subsequent press reports about the gloves incident suggested that
the problem may have been poor communication to the lesbian and gay
guests about Secret Service routine; after an incident in 1993 when
a Secret Service agent suffered a puncture wound while searching a
handbag of a White House guest, an OSHA inspector recommended that
those agents who conduct searches always wear puncture proof
gloves, and gloves have become routine for those agents who conduct
inspections.  Washington Times, June 20.  A.S.L. 

British Court Rejects Challenge to Military Policy

On June 7, in R. v. Ministry of Defence ex parte Smith, No.
CO/0573/95, Simon Brown L.J. and Curtis J. of the Queen's Bench
Divisional Court refused applications for judicial review of the
U.K. Armed Forces' policy of dismissing gay, lesbian and bisexual
personnel.  The applications (a lesbian and three gay men who were
administratively discharged) made three main arguments: (1) the
policy violates their rights under Articles 8 and 14 of the
European Convention on Human Rights; (2) it is "irrational" under
principles of U.K. administrative law; and (3) it is contrary to
the European Community's Equal Treatment Directive, which prohibits
sex discrimination in employment.

The first argument cannot be made before a U.K. court, since the
U.K. has not incorporated the Convention as domestic law, but only
before the European Court and Commission of Human Rights in
Strasbourg, after exhausting domestic remedies in the U.K. (appeals
to the Court of Appeal and the House of Lords).  Simon Brown L.J.
implied that he would have found the policy contrary to the
Convention were it part of U.K. law, whereas Curtis J. said he
would have upheld it under Article 8(2).

The second argument is available because the policy is an exercise
of the executive's prerogative powers and is not contained in a
Parliamentary enactment.  (U.K. law does not permit judicial review
of Parliamentary acts unless they conflict with European Community
law.)  It failed because the applicable Wednesbury standard of
"rationality" (justifications must not "outrageously def[y] logic
or accepted moral standards") is extremely deferential to the
executive, "even where fundamental human rights are being
restricted."  Thus, although Simon Brown L.J. rejected the Armed
Forces' justifications (adverse reactions of heterosexual
personnel, protection of male recruits aged 16 and 17, "sharing the
showers" and security), and described the policy as based on "a
wrong view . . . that rests . . . upon the supposition of prejudice
in others"), he could not hold that the policy was irrational,
because it was not "plain beyond sensible argument that no
conceivable damage could be done to the Armed Services as a
fighting unit."  He dismissed the applications "with hesitation and
regret", concluding that the future of the policy (which he
considered unlikely to survive for much longer and urged the
respondent to examine afresh) rests with the U.K. Government and
Parliament.  Curtis J., agreeing that the decision is for
Parliament, viewed the policy as based on "purely military
grounds", not prejudice, and not "doomed to die an early death" or
"necessarily wrong."

On the third argument, the applicants seem to have applied Baehr v.
Lewin (the Hawaii marriage case) to the Equal Treatment Directive
and military employment, but cited the U.N. Human Rights
Committee's statement in Toomen v. Australia that "sex" includes
"sexual orientation," rather than using Baehr's rationale.  Neither
judge seems to have fully understood this powerful but subtle
argument.  Simon Brown L.J. held (Curtis J. agreeing) that the
argument "founder[s] on the plain and unambiguous language of the
Directive, . . . which says everything about gender discrimination,
but . . . nothing about orientation discrimination."  The Court of
Appeal or the House of Lords might refer this point of European
Community law to the European Court of Justice in Luxembourg.

Smith is an excellent illustration of the inability of sympathetic
English judges to protect human rights without a domestic bill of
rights.  Surprisingly, Simon Brown L.J. included the U.S. in a list
of "countries now permitting homosexuals in their Armed forces";
perhaps he meant "closeted or celibate," referring to the "Don't
ask, don't tell" policy.  The next stop for this case is the Court
of Appeal. R.W.

Gays in the Military Update - U.S.

In an unpublished opinion, U.S. District Judge Claude Hilton
(Virginia) ruled in Thomasson v. Perry that the "don't ask, don't
tell" policy is constitutional, and refused to bar the discharge of
Navy Lt. Paul Thomasson, a 10-year veteran pilot with an excellent
service record.  No conduct other than stating that he is gay has
been alleged against Thomasson, but Hilton ruled that the Navy can
presume Thomasson engages in homosexual conduct, relying on a
statement in a 1986 brief filed in a sodomy challenge by Lambda
Legal Defense Fund stating that "homosexuality is inexorably
intertwined with `homosexual conduct'," according a detailed report
on Hilton's decision in the Washington Blade (June 16).  Rejecting
the argument that the military policy is based on prejudice, Hilton
bought the Defense Department's standard "unit cohesion"
justification.  Rejecting equal protection arguments, Hilton
pointed to military segregation of men and women into different
living quarters, presumably to preserve individual privacy, and
asserted that the same sort of privacy concerns required removing
openly gay members from the service to preserve the privacy in
living quarters of heterosexual members.  

The Defense Department published proposed regulations dealing with
military recruitment at institutions of higher education on May 30. 
60 Fed. Reg. 28050.  The proposed regs would revise 32 CFR Part 216
to incorporate the requirements of last year's Solomon Amendment to
the Defense Appropriations Bill, which bars the use of Defense
appropriations at any school that prohibits military recruitment. 
The proposed regs preserve the distinction between institution-wide
bans and bans localized in a particular subunit; thus, if a law
school bans military recruiters, only the law school, and not the
rest of its affiliated university, would be barred from receiving
Defense Department funds.  Written comments on the rule must be
submitted by July 31 to Director for Accession Policy, Office of
the Assistant Secretary for Force Management Policy, 4000 Defense
Pentagon, Washington, D.C. 20301-4000.

The House is moving forward on the ROTC Campus Access Act, which
would prohibit any federal grant or contract from being awarded to
an institution of higher education that adopts a policy barring
Reserve Officer Training Corps programs from its campus.  On June
14, this was added to the pending Defense Appropriations Bill by a
302-125 vote in the House.

The Navy will allow Zoe Dunning, an openly lesbian reserve officer,
to continue serving, accepting the recommendation of a hearing
tribunal which apparently accepted her rebuttal of the presumption
that she engages in homosexual activity, and has also abandoned
further attempts to win the Dusty Pruitt case, having made a
settlement offer accepted by Pruitt.  Still active is the
Margarethe Cammermeyer case; Cammermeyer resumed active service in
June pursuant to court order.  Reportedly, the Defense Department
is trying to get the 9th Circuit to affirm the district court's
order in the case in an unpublished decision, and to depublish the
trial court's order.  Then it is expected that Cammermeyer will
retire at the end of this year, which would be her 30th year of
service.  Cammermeyer has indicated she will not retire if her case
is still pending at the end of the year.

Navy Lt. Richard P. Watson announced plans to sue the Defense
Department over his pending discharge.  Watson "came out" to his
commanding officers after being threatened with blackmail by an
acquaintance who knew he was gay.  Although there are several gay
military cases pending in district courts in the 9th Circuit,
Watson's may be the first to be brought challenging the Clinton
Administration policy.  To date, the 9th Circuit Court of Appeals
has been the most receptive to military challenges, refusing to
entertain the presumption of conduct urged by the Defense
Department for anyone who professes to be gay.  A.S.L.

Law & Society Notes

The Clinton Administration and Attorney General Janet Reno got a
black eye in the gay community when the Justice Department
announced June 8 that it would not file a friend of the court brief
in Romer v. Evans, the pending Supreme Court case on the
constitutionality of Amendment 2, Colorado's anti-gay initiative
measure that was passed by voters several years ago but declared
unconstitutional by the Colorado Supreme Court.  Reno stated that
"no federal statute or federal program was implicated. . .  We are
not a party in the case and weren't asked by the court to file. 
It's a discretionary act."  Exactly; and by not exercising
discretion to file a brief, Clinton failed to extend himself beyond
the letter he sent a year ago announcing his opposition to anti-gay
ballot measures.

The Broward County, Florida, Commission voted 6-1 on June 13 to add
sexual orientation to the county's human rights ordinance banning
discrimination.  Opponents of the measure promptly announced plans
to seek its repeal by referendum.

On June 9 the Virginia Supreme Court denied a motion to reconsider
its decision in Bottoms v. Bottoms, 457 S.E.2d 102 (April 21), in
which it awarded custody of Sharon Bottoms' son to Bottoms' mother,
premised largely on Sharon's continuing relationship with her
lesbian partner and the Court's perception that exposure to that
relationship (and asserted social stigma attached to it) would not
be in the child's best interest.

U.S. Representative Bill Paxon (R.-N.Y.) told officials of the
Human Rights Campaign Fund that the National Republican
Congressional Committee has banned sexual orientation
discrimination on its staff since 1991.  The Committee's written
policy is apparently a paraphrase of the District of Columbia Human
Rights Ordinance, which has banned sexual orientation
discrimination since the 1970s.  Washington Blade, June 30.  A.S.L.

The St. Louis Post Dispatch reported July 9 that Ford & Sons
Funeral Home in Cape Girardeau, Missouri, had discharged Roger
Moore, a gay embalmer, as a result of a harassment and vandalism
campaign started by unknown persons who sent letters to 100
townspeople asking "Would your loved one want a homosexual taking
care of them when they die?"  Local police have been unable to
track down any suspects in the letter campaign or the vandalism. 
Since anti-gay discrimination is legal in Missouri, Moore cannot
file suit against his employer.  The newspaper article suggests
that the anonymous letter writer was trying to drum up business for
Ford's only competitor in town, McCombs Funeral Home, whose
proprietor denied having anything to do with it.  Moore vowed to
stay in the town and find a different job.  Ford's had nothing but
praise for his work. 

The Employment Non-Discrimination Act was been reintroduced in
Congress on June 15 (H.R.1863; S.932).  The narrowly-tailored bill
applies only to employment discrimination, covers only employers
large enough to be subject to the federal Civil Rights Act of 1964,
eschews any use of a "disparate impact" theory to combat anti-gay
discrimination, and outlaws any affirmative action on the basis of
sexual orientation, even as a remedy for adjudicated
discrimination.  This version of ENDA has a narrower definition of
"sexual orientation" than last year's; it provides that "sexual
orientation" as mentioned in the bill "means homosexuality,
bisexuality, or heterosexuality, whether such orientation is real
or perceived."  Last year's bill included the phrase "as manifested
by identity, acts, statements, or associations."  Apparently the
sponsors feared loss of Clinton Administration support with the
broader definition, in light of the position the Administration is
taking in defending the ban on military service by openly lesbian
and gay persons.  As of the date of introduction, the measure had
117 House sponsors and 29 Senate sponsors, more than last year's
version, despite the conservative shift in Congress last November. 
BNA Daily Labor Report No. 116, 6/16/95, pp. A-9 & A-10.  

Camp Sister Spirit Lives!  On July 5, Jones County, Mississippi,
Chancellor Frank McKenzie, ruling on a nuisance suit brought by
angry neighbors, held that the camp, a feminist rural retreat run
by a lesbian couple, was not a "nuisance" and denied a demand that
its operation be enjoined.  However, McKenzie said that the "fears
and concerns" of those who filed the suit "are genuine and
justified under the evidence" and warned that the camp could be
closed down if Brenda and Wanda Henson, its operators, did not take
care to avoid an increase in the level of activity on the grounds,
reported the Associated Press.  

Now it's gay fruit flies.  The Associated Press reported that a
study published in the June issue of the Proceedings of the
National Academy of Sciences by National Institute of Health
researchers found that male fruit flies engaged in homosexual
conduct after a gene transplant, giving rise to an inference that
genes can affect sexual orientation.  Just one problem; when the
gay fruit flies were then placed in containers with non-gay fruit
flies, the non-gay fruit flies also began to act gay. So what does
it all mean? A.S.L.

International Notes

The Court of Criminal Appeal of the Australian state of South
Australia has held that the depiction of a naked, undressing or
urinating young boy is not inherently indecent.   In Phillips v.
Police, 75 Aust. Crim. R. 480 (1994), an appeal from convictions
for possession of child pornography, the court analyzed in detail
the concepts of indecency, obscenity and immorality.  The
Australian test of indecency is contemporary community standards. 
The common law takes account of all the circumstances and the
setting of the material but the South Australian statute concerned
"takes the fallacious position that there is material which is
inherently indecent or obscene."  Thus the Act required the court
to ignore the fact that videos were secretly taken and that the
appellant had a prurient interest in what was depicted.  In the
circumstances, the images depicted were not inherently indecent nor
offensive to contemporary community standards.  The appeal was
upheld and convictions quashed. D.B.

The Canadian Parliament passed a hate crimes bill that enhances
penalty for crimes motivated by the victim's race, religion,
language, color, gender, age, mental or physical disability or
sexual orientation.  Most of the raucous parliamentary debate
concerned the inclusion of sexual orientation.  Miami Herald, June
18.

The Governor General of Australia, William Hayden, who is the
official representative of the British crown but has no actual
government powers, supported the concept of same-sex marriage in a
speech to the Australiasian College of Physicians.

The Finnish government enacted a new provision of the penal code,
effective September 1, that makes it a criminal offense to
discriminate on the grounds of race, faith, sex, nationality,
color, age or sexual orientation.  This will place Finland among a
handful of countries with national laws against sexual orientation
discrimination.  

The Australian government is easing the process required for
obtaining visas for non-Australian same-sex partners of Australian
citizens, by the creation of a new interdependency visa class.  The
new regulations will remove a significant amount of discretion that
had been retained by immigration officers to deny entry.

The Dutch government is expected to propose to the Parliament the
enactment of a measure that would create a registered partnership
system for same-sex couples.  A bill with details of the proposal
may be introduced next year, but it is expected that at least one
member of a registered couple will have to be a citizen of a
European Union country.  This would be a more liberal citizenship
requirement than exists in the Scandinavian countries, which
require that at least one member of the couple be a citizen of the
country.  It may make the Netherlands a European honeymoon haven
for same-sex couples.  A.S.L.

Professional Notes

Gay & Lesbian Advocates & Defenders (GLAD) in Boston announced July
10 that Amelia A. Craig, Esq., has been hired as its new Executive
Director.  Craig is currently managing attorney in the Western
Regional Office of Lambda Legal Defense and Education Fund.  She
will assume her position with GLAD in September.  She is a 1986
graduate of Stanford Law School and worked at Heller, Ehrman, White
& McAuliffe before joining Lambda in 1993.  GLAD will introduce
Craig to its donors at its 13th Annual Summer Party at the
Provincetown Inn, 1 Commercial Street, Provincetown, Mass.  Call
617-426-1350 for reservations for this event.

The Gay and Lesbian Victory Fund announced the appointment of
former Wisconsin State Representative David Clarenbach as its new
executive director.  Clarenbach was not openly gay in office, but
came out publicly with the announcement of the Victory Fund
appointment.  A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 

9th Circuit Finds  504 Violation by FBI in Suit by Doctor With
AIDS

Responding at last to plaintiff's refusal to accept defeat, a 9th
Circuit panel has withdrawn its prior decision in Doe v. Attorney
General of the United States, No. 93-15253, and ruled 2-1 on June
30 that the Federal Bureau of Investigation violated sec. 504 of
the Rehabilitation Act of 1973 when it terminated a contract for
physical examinations of its agents by the late Dr. John Doe.  The
agency had received information from an informant that Dr. Doe had
AIDS.  Neither Doe nor the hospital where he worked would respond
directly to the agency's inquiry about Doe's health status, but
they informed the agency that they followed proper infection
control procedures and there was no risk to the agents.  The agency
then terminated the contract.  

In its previous opinion, published at 44 F.3d 715 (Jan. 18, 1995),
the panel upheld the trial judge's ruling against the plaintiff as
not clearly erroneous.  In that opinion, the trial judge, District
Judge Charles Legge, found that the agency terminated the contract
because the failure of Dr. Doe to respond to its inquiries about
his health status prevented the FBI from determining whether Doe
was "otherwise qualified" to continue examining agents, and not
directly because of Doe's HIV-status. (Expert testimony led the
trial judge to find that any risk of infection for agents through
the performance of routine physical examinations by an HIV+ doctor
would be "remote.")

On reconsideration, however, a majority of the panel came around to
the view espoused by the plaintiff that, in fact, the agency's
inquiry as to Doe's HIV-status was not relevant for any lawful
purpose.  "[T]he FBI's concern under the Act should have been to
determine whether Dr. Doe posed a substantial risk of communicating
the disease.  It would have been perfectly appropriate, therefore,
for the FBI to inquire in detail about the infection control
procedures used to ensure that FBI employees were not placed at
risk.  The district court record reveals, however, that the FBI
expressed little concern about the hospital's infection control
procedures.  The record shows that Dr. Doe and the hospital were
entirely forthcoming about these procedures, but that their
explanations fell on deaf ears."  In short, the FBI was so obsessed
with determining Doe's HIV status that it failed to focus on the
relevant inquiry; furthermore, the record shows that the FBI
intended to terminate Doe's contract if it confirmed that he was
HIV+, so the agency's inquiry had an unlawful purpose.  Chief Judge
Wallace dissented, arguing that "[r]egardless of how any of us
would decide the case had we been the district judge, I cannot say
these finding are clearly erroneous."
Unfortunately (and inexplicably), the court's opinion is contained
in an unpublished memorandum, unlike the officially published
January 1995 opinion which it replaces.  Thus, the decision which
a majority of the panel now deems to have been incorrect can
continue to be cited in the 9th Circuit, while the new opinion that
replaces it cannot.  What can they be thinking?

Matt Coles of the ACLU's Lesbian & Gay & AIDS Projects represents
the estate of Dr. Doe, who died from AIDS after the lawsuit was
filed.  A.S.L.

5th Circuit Denies Habeas Petition of HIV+ Man Convicted for
Spitting at Prison Guard

In a per curiam decision, Weeks v. Scott, 1995 WL 340057 (June 23),
the U.S. Court of Appeals for the 5th Circuit upheld the conviction
of an HIV+ prisoner who, the state argued, attempted to murder a
guard by spitting in his face.  While being transferred from one
prison unit to another, Curtis Weeks spat in the face of a guard. 
The state prosecuted Weeks for attempted murder and in 1989 a jury
convicted him.  The state court of appeals affirmed Weeks'
conviction.  Weeks v. Texas, 834 S.W.2d 559 (Tex. App. 1992); see
1992 LGLN 66.  A federal habeas corpus petition followed.

Weeks argued that the evidence did not support a finding that
spitting could, beyond a reasonable doubt, transmit HIV, and that
the jury was misled by instructions which suggested they could
convict him without being convinced that his spitting could have
transmitted HIV to the guard.  Viewing the evidence in favor of the
prosecution, the 5th Circuit was convinced that a rational jury
could have found that spitting could transmit HIV.  The jury heard
four witnesses testify about HIV transmission.  The "strongest"
prosecution witness, Paul Cameron, testified that HIV "could
possibly" be transmitted by saliva and told the jury there were
cases of saliva transmission.  Other witnesses characterized the
risk of transmission as remote, if not impossible, and told the
jury that saliva transmission had never been proven.  Noting that
Weeks' attorneys had presented a "mountain of scientific evidence"
that HIV cannot be transmitted by saliva, the court preferred,
nonetheless, to defer to the jury because the record contained some
evidence (suspicious though it was) to support the conclusion that
Weeks' spitting could have transmitted the HIV virus to the guard
(although it apparently didn't).  The court acknowledged in a
footnote the split among various jurisdictions as to whether HIV
can be transmitted via saliva.

Weeks also argued that the jury charge misled the jury into
convicting him without being convinced that his spitting could have
infected the guard.  The instruction required a finding of guilty
if the jury was convinced beyond a reasonable doubt that Weeks
attempted to kill the guard by intentionally spitting on him.  In
addition, the state's closing argument glossed over the need for
the state to prove that transmission could have happened.  The
charge was not unconstitutionally infirm however, because the
instructions defined attempt ("more than mere preparation that
tends but fails to effect the commission of the offense intended")
and because the defense closing included argument on the state's
burden of proof and the need for the state to show the possibility
of HIV infection.  D.W.

7th Circuit Revives Prisoner Suit for Rape by HIV+ Inmate

In a decision with potentially far-reaching constitutional
implications, the U.S. Court of Appeals for the 7th Circuit ruled
June 5 that a prisoner allegedly raped by his HIV+ cellmate must be
given assistance in conducting pretrial discovery to identify
potential defendants in his 8th Amendment case.  In an opinion by
Chief Judge Richard Posner, the court held in Billman v. Indiana
Department of Corrections, 1995 WL 329725, that the district court
had an obligation to assist Jason Billman, an Indiana inmate, in
determining which prison officials could be named as defendants in
his 42 U.S.C. 1983 suit.

Billman sued after he allegedly was raped by his cellmate, Darrell
Crabtree.  He charged that he was informed by prison officials that
he would have to take an AIDS test because Crabtree had been
diagnosed as carrying HIV.  Billman also charged that prison
employees knew from prior conduct that Crabtree had a propensity to
rape other inmates and did nothing to intervene when the incident
occurred.   The complaint, alleging cruel and unusual punishment,
was drafted by Billman without assistance of counsel and listed
five defendants: the Indiana Department of Corrections and its
chief; the warden and unit manager of the prison in which he was
incarcerated; and an "unknown correctional complex officer." 
Billman asked for leave to file his complaint in forma pauperis.
The district court denied the motion, and dismissed the suit with
prejudice, finding it frivolous. 

The 7th Circuit reversed and remanded.  Under Denton v. Hernandez,
112 S.Ct. 1728 (1992), all that a trial judge may do upon a finding
of frivolousness is deny leave to proceed in forma pauperis,
leaving the question of dismissal to evaluation under FRCP Rule 12. 
Unlike the majority of prisoners' civil rights suits, "most of
which are indeed hoked up and frivolous," the facts alleged by
Billman are not "fantastic or unbelievable," wrote Posner. He
added, "Fairly construed. . . the complaint alleges that employees
of the prison system, knowing that Crabtree had a history of raping
his cellmates and was HIV-positive, nevertheless placed Billman in
the same cell without warning him of the danger he faced, and that
they did nothing to interrupt the rape while it was in progress."
While it appears that Billman did not contract HIV, "the fear
caused by the rape itself, and the additional fear of contracting
HIV until that fear was dispelled, would be normal items of
damages," noted the court. 

The trial court dismissed Billman's claim because he did not allege
the state of mind necessary to demonstrate "deliberate
indifference" on the part of any defendant, noted Posner.  However,
Billman's opportunities to conduct a pre-complaint inquiry within
the prison complex were "virtually nil," he added.  Billman "knew
enough to know to know that a terrible thing had been done to him,"
wrote Posner. "But he did not know enough to identify the culprits
or to determine whether they had the confluence of knowledge (of
Crabtree's propensity for rape and HIV status) and power (to assign
Billman to a cell) necessary to hold them liable for inflicting a
cruel and unusual punishment."

A non-incarcerated complainant who could not reasonably be expected
to identify tortfeasors without the aid of pretrial discovery would
not have his case dismissed, noted the court. Thus, there is
"peculiar perversity" at work which effectively imposes "heightened
pleading standards in prisoner cases." "We do not think that the
children's game of Pin the Tail on the Donkey is a proper model for
constitutional tort law," wrote Posner. "It is far more difficult
for a prisoner to write a detailed complaint than for a free person
to do so, and this is not because the prisoner does not know the
law but because he is not able to investigate before filing suit.
We think it is the duty of the district court to assist him, within
reason, to make the necessary investigation."  M.N.S.

6th Circuit Avoids Ruling on Constitutional Claims in Death of HIV+
Prisoner

On April 4, 1990, Harry Perkins, who was HIV+, was arrested for
breaking and entering in Miami County, Ohio.  During booking,
Perkins informed corrections officers that he had AIDS.  The
officers described Perkins as weak and ill and indicated that he
lost control of his bowels twice during booking.  On April 13,
Perkins died while still in custody.  On the day of his death,
corrections officers had difficulty waking Perkins and noted that
his condition was getting worse.  During the morning Perkins was
moved to the jail's clinic.  The Sheriff was advised that Perkins
should probably be moved to a hospital.  The paperwork was started
at that time.  At 10:15 a.m. someone checked on Perkins and could
not get a response.  Paramedics were called and Perkins was
pronounced dead at 10:50 a.m.  His body was transported to the
coroner's office where a visual autopsy was performed.  The coroner
concluded that Perkins died of multiple systems failure cause by
the AIDS virus.  He ordered the immediate cremation of the body,
fearing spread of HIV through the ground.  Perkins' next of kin was
not informed of his death prior to the cremation.  

Perkins' personal representative sued Miami County and various
county commissioners, sheriffs and medical personnel, alleging
violations of Perkins' civil rights under 42 U.S.C. sec. 1983.  On
motion for summary judgment the district court divided the case
into two incidents:  events occurring from April 4-12 and events on
April 13, 1990.  The district court granted summary judgment for
the defendants as to the treatment of Perkins from April 4th to the
12th and dismissed all defendants who were not involved in Perkins'
care on April 13th.  Perkins' personal representative appealed, and
the Sixth Circuit held that it lacked jurisdiction to hear the
appeal of the partial summary judgment based on the activities from
April 4th to the 12th, affirming the district court on all other
issues.  Soliday v. Miami County, 1995 WL 326566 (6th Cir., June
2).  The claim for deliberate indifference to serious medical needs
as to April 13, 1990, will proceed in the district court; after
trial if the matter is again brought before the 6th Circuit, the
court may consider the argument that the claims as to the earlier
time period should have been tried.  T.V.L.

11th Circuit Holds AIDS-Fraud Vitiates Incontestability Clause in
Insurance Contract

Applying New Jersey law after resorting to a conflict-of-laws
analysis under Florida law, a panel of the United States Court of
Appeals for the 11th Circuit held June 7 that the incontestability
clause in a life insurance policy did not prevent the insurer's
rejection of the beneficiary's claim on the basis of the insured's
fraud in applying for the policy.  Fioretti v.  Massachusetts
General Life Insurance Company, 53 F.2d 1228.  The insured had
knowingly denied his HIV-positive status in both his original
application and a subsequent Statement of Good Health, and he had
arranged for an imposter to take a blood test required by the
insurer so as to conceal his status. Given this record, the
beneficiary admitted the insured's fraud but asserted the policy's
2-year incontestability clause, as the policy had been in effect
for over two years. Observing that New Jersey law permitted an
insurer to avoid an incontestability provision with evidence of
even an innocent misrepresentation, the court concluded that the
insured's affirmative fraud clearly permitted the insurer's
recision of the policy.  The insured's misrepresentations certainly
were material to the insurer's decision to underwrite the risk, the
court declared.  R.M.

11th Circuit Eases Learned Intermediary Standard in Action Against
Blood Product Manufacturer

The U.S. Court of Appeals for the 11th Circuit held that a blood
product manufacturer need only prove that a treating physician had
knowledge similar to what would have been provided in a warning on
the product in order to invoke the learned intermediary defense in
a negligence action.  In Christopher v. Cutter Laboratories, 1995
WL 225226 (June 2), plaintiffs sued the manufacturer of a blood
product which was used to treat hemophilia in their son Jason in
1983, alleging that the manufacturer's negligent failure to warn
Jason's physician that the product might transmit HIV resulted in
Jason's death in 1992 from AIDS.  At the time of Jason's treatment,
the defendant's blood product bore no warning as to the possibility
of HIV transmission.  However, shortly thereafter, the defendants
requested and, in 1984, the FDA approved, such a warning on the
product.

Denying defendant's motion for judgment as a matter of law, the
trial court found sufficient evidence of causation to present to a
jury the question whether the manufacturer's negligence caused
Jason to contract HIV.  In support of their case, defendants argued
that Jason's physician, Dr. Barbosa, knew of the possibility that
HIV might be transmitted through blood products.  Accordingly, they
invoked the "learned intermediary rule" and requested a jury
instruction that failure by the manufacturer to warn the physician
of the possibility of HIV transmission at an earlier time was not
the proximate cause of Jason's infection.  The trial court,
however, instructed the jury that the defendants had to prove that
Dr. Barbosa knew of "reasonable evidence of an association of a
serious hazard, that is, AIDS," with the specific blood product at
the time it was prescribed.  The jury awarded plaintiffs damages
over $2 million.  The defendants appealed on the issues of
causation and the instruction regarding the learned intermediary
rule.  

Circuit Judge Black agreed with the trial court that the plaintiffs
presented sufficient evidence to allow a jury to determine whether
defendant's negligence was the proximate cause of Jason's HIV
infection.  As to the learned intermediary rule, defendants argued
that the trial court's instruction, specifically the language
requiring the jury to find that Dr. Barbosa had "reasonable
evidence" of a risk that the blood product might transmit HIV,
imposed a higher burden on the defendants than warranted under the
learned intermediary rule.  The rule holds that a manufacturer's
duty to warn about risks associated with a drug runs to the
physician, not the patient, and that the manufacturer's failure to
warn is "not the proximate cause of a patient's injury if the
prescribing physician had independent knowledge of the risk and
that the adequate warning should have been communicated."  Thus, if
Dr. Barbosa had the same knowledge as would have been communicated
to him in a warning from the manufacturer, there is no proximate
cause between the defendant's failure to warn and Jason's
infection.  The defendants argued that the trial court's
instruction required them to prove that Dr. Barbosa has more
knowledge than would have been provided to him under any warning. 
The plaintiffs' position was that, since a federal statute requires
a drug manufacturer to issue a warning when they have "reasonable
evidence" of a risk associated with a given drug, the mere
existence of such warning gives a treating physician "reasonable
evidence" of such a risk.  However, the court maintained that the
standard under the learned intermediary rule was that the treating
physician must be shown to have substantially the same knowledge as
would have been communicated by the warning.

With that in mind, the court noted that the warning eventually
issued by the defendant on its blood product merely cautioned that
the "possibility existed" of an association between HIV and blood
products, not that "reasonable evidence" existed for such a
conclusion.  The court found that the jury instruction, requiring
a finding that Dr. Barbosa had "reasonable evidence" of an HIV risk
associated with blood products, was not supported by any factual
development in the record, absent any evidence that the medical
community generally or Dr. Barbosa specifically were aware of the
"reasonable evidence" standard.  The court held that the jury was
improperly instructed on the learned intermediary defense and
ordered a new trial.

Circuit Judge Barkett dissented on this issue.  Since federal law
required a manufacturer to issue a warning when they had
"reasonable evidence" of a risk associated with a given drug, Dr.
Barbosa would have to possess at least that much knowledge in order
to be a learned intermediary.  Furthermore, Barkett concluded that
the record did indeed demonstrate that Dr. Barbosa knew of the
import of warnings from drug companies, and judicially noticed that
"a board-certified pediatric oncologist would have been aware that
reasonable evidence was required before a warning could be issued." 
Barkett also noted that where physicians are specifically made
aware of the hazardous nature of a drug, to hold a drug
manufacturer liable for not issuing a warning would be
"superfluous."  But where, as here, no specific knowledge by the
treating physician of the risks involved with a given drug is
alleged, physicians cannot be learned intermediaries unless they
possess as much knowledge as would have been communicated in a
warning.  R.B.

9th Circuit Remands Suit Against Factor-VIII Manufacturer for
Further Determination on Limitations Period

Joseph New, a hemophiliac, was treated with Factor-VIII clotting
medication manufactured by Armour Pharmaceutical several times from
1981 to 1984.  In 1988, he submitted to HIV testing on the advice
of his doctor and tested positive.  On January 17, 1992, he retired
from his job because declining health made work impossible.  On
January 19, 1993, he sued Armour Pharmaceutical for "wrongful
infliction of AIDS."  New subsequently died from AIDS.  The
district court dismissed his case on Armour's motion, finding that
the complaint was barred by California's one-year statute of
limitations, which begins to run upon discovery of the injury.  The
9th Circuit reversed and remanded, finding that there was a
possibility that New's successor in interest could amend the
complaint to meet the requirements of the statute of limitations. 
New v. Armour Pharmaceutical Co., 1995 WL 368871 (June 22).

The court rejected Armour's contention that the statute of
limitations began to run in 1988 when New learned he was HIV+.  At
that time, hemophiliacs were being told that a positive HIV test
did not necessarily mean they would contract AIDS, and, the court
found, this is still the advice given to hemophiliacs who seek
information upon learning their HIV status, as apparently a smaller
percentage of hemophiliacs than others infected with HIV proceed to
develop AIDS.  Rather, the court said, News' cause of action really
accrued once he began to suffer serious medical symptoms
attributable to HIV infection signalling the onset of AIDS.  The
complaint's allegations were somewhat contradictory on this,
alleging that "the serious decline began within the year preceding
the filing of the complaint," but elsewhere stating that "as the
result of the progressive effect of these conditions" New ceased
working on January 17, 1992, more than a year prior to filing of
the complaint.  "As Armour's motion to dismiss was not a responsive
pleading, New had the right to amend as a matter of course,
Fed.R.Civ.P. 15(a), unless the allegation of other facts consistent
with the challenged pleading could not possibly cure the
deficiency," said the court.  The court also noted that because
January 18, 1993, was Martin Luther King, Jr., Day, a holiday
excluded from counting for this purpose, a January 19 complaint
would be timely if the district court determined that the time
started to run on New's last date of work.  A.S.L. 

South Carolina Appeals Court Affirms Convictions in HIV Assault
Case

The South Carolina Court of Appeals upheld the admissibility of
evidence of HIV seropositivity as relevant to the issue of consent
in a rape trial in State v. Deal, 1995 WL 372092 (S.C.App.). The
court also affirmed the lower court's inclusion of the defendant's
HIV status as an aggravating factor in a sexual assault case, and
affirmed convictions for criminal sexual conduct and exposing
another to HIV.

The defendant Deal was charged with the rape of his 18-year-old
stepdaughter.  The charges included criminal sexual conduct,
aggravated assault and battery, and exposing another to HIV.  The
victim charged that Deal handcuffed her and showed her a condom
prior to raping her.  She testified, however, that she did not know
if he had actually used the condom.  She claimed that he said that
her boyfriend would no longer love her because she had been exposed
to HIV.  Deal claimed that there had been a consensual sexual
encounter, which he regretted.  At trial, evidence indicated that
the victim had abrasions on her wrists consistent with handcuffing
as well as swollen mouth and lips but no vaginal tears or abrasions
and no finding of semen on her body or clothing.  Deal was
convicted of criminal sexual conduct and exposing another to HIV. 
On appeal, Deal raised only the issue of whether the trial court
erred in refusing to sever the HIV charge from the criminal sexual
conduct and assault charges, arguing that the public's fear and
misunderstanding of HIV made the inclusion of that charge unduly
prejudicial.  The Court of Appeals disagreed for three reasons.  

First, it reasoned that under South Carolina law separate offenses
may be charged in the same indictment if they arise out of a single
chain of circumstances, are proved in large part by the same
evidence, and are of the same general nature, so long as no "real
right" of the defendant is jeopardized.  In this case, the court
said, the crimes charged met this test and Deal's rights were not
threatened.

Second, the court said that the defendant admitted that a sexual
encounter had occurred but claimed that it was consensual.  The
victim had knowledge of Deal's HIV status and, therefore, that
status would have been relevant to the issue of consent.  Relevance
is determined by deciding if evidence tends to establish whether a
matter in question was more or less probable.  The court decided
that Deal's HIV status had a bearing on whether or not consensual
sex occurred and was, therefore, relevant and admissible.  The
court implied but did not state that if the victim knew Deal was
HIV+, she would not have consented to sex.

Third, the Court of Appeals found that Deal's HIV status was
admissible in connection with the charge of aggravated assault,
since, the court reasoned, by telling her that her boyfriend would
no longer love her, he showed that he wanted to give her AIDS and
thereby destroy her relationship with her boyfriend.  Acknowledging
that there is great fear and misunderstanding by the public about
HIV, the court still found no reason to suppress evidence of
seropositive status in this case.  H.G.U.

Confidentiality Concerns in Guardianship Proceedings for PWA
Addressed by New York Court

Ruling on issues of first impression, New York Supreme Court
Justice Kristin Booth Glen produced a painstaking analysis of the
intersection of Article 81 of the N.Y. Mental Hygiene Law (which
governs guardianship proceedings for mentally incapacitated
persons) and Article 27-F of the Public Health Law, which governs
confidentiality of HIV-related information.  Matter of St. Luke's
Roosevelt Hospital Center (John Doe), NYLJ, June 1, 1995, p. 27
(Sup.Ct., N.Y. County).  The hospital had petitioned for
appointment of a guardian for one of its patients who was alleged
to be incapacitated from making his own decisions due to AIDS
dementia; the petition also requested placement in a nursing home. 
Attached to the petition and the order to show cause served on a
variety of parties, which were filed with the patient's real name,
were affidavits regarding the patient's medical condition and HIV-
status.  After the papers were served, the New York City Division
of AIDS Services (DAS) moved for an order dealing with
confidentiality issues, since it felt constrained by the law from
releasing patient information in its possession.  

Justice Glen's decision provides a careful analysis of the myriad
issues raised in such a proceeding, including the balancing of
confidentiality concerns with the need for accurate and complete
medical information so that the evaluatory appointed by the court
(an attorney at Gay Men's Health Crisis) can make an appropriate
recommendation to the court.  Glen found that various degrees of
disclosure to various different parties to the proceeding was
appropriate, but ordered the substitution of "John Doe" for the
patient's name in all court records and specified various degrees
of confidentiality protection to apply in different parts of the
proceeding.  She also recommended that the legislature amend
Article 27-F to take specific account of informational needs in the
context of Article 81 proceedings, and spelled out how she thought
courts should handle such matters until the legislature acts.  This
important decision, to date published only in the New York Law
Journal (available on-line in Westlaw) should, one hopes,
eventually appear in the official and West reporters.  A.S.L.

Prison Doctor's Prescription Not a Constitutional Violation

An HIV+ inmate who was refused the anti-viral drug DDC on medical
grounds did not suffer a violation of his civil rights, ruled the
U.S. District Court for the Eastern District of New York on May 31. 
District Judge John Gleeson held in Carter v. Cash, 1995 WL 347028,
that the decision of a doctor employed by the Nassau County
Correctional Center (NCCC) not to dispense DDC and Interferon to
the inmate, Warren W. Carter, did not constitute "deliberate
indifference" to his medical condition in violation of the 8th
Amendment.

Carter was confined to the NCCC on October 17, 1992. Prior to his
incarceration, he had been prescribed DDC by a physician in private
practice. While at the NCCC, he was examined by the facility's
resident physician, Dr. T. Kashimawo.  Carter expressed a desire to
continue DDC therapy, and asked to be placed on Interferon.
Kashimawo referred Carter to the infectious disease clinic of the
county medical center. After consulting with physicians there,
Kashimawo decided to treat Carter with AZT, DDI and acyclovir.  In
an affidavit, Kashimawo gave two reasons for this course of
treatment: first, DDC is not approved for "monotherapy" and is
contraindicated in patients with liver problems, which Carter has;
second, Interferon cannot be dispensed without liver studies, and
Carter refused his consent for such tests.  Carter sued the NCCC,
the county medical center, and Nassau County officials, alleging
violations of his constitutional rights under 42 U.S.C. sections
1981 and 1983.

In granting defendants' motion for summary judgment, Gleeson noted
that under the standard established in Estelle v. Gamble, 429 U.S.
97 (1976), a claim of improper medical treatment rises to the level
of a sec. 1983 violation only when a prisoner "alleges acts or
omissions sufficiently harmful to evidence deliberate indifference
to serious medical needs."  The course of treatment selected by
Kashimawo was based on a medical evaluation of Carter, noted
Gleeson, and should be accorded deference. The court cited Inmates
of Allegheny County Jail v. Pierce, 612 F.2d 754 (3rd Cir. 1979),
which held that courts should "disavow any attempt to second-guess
the propriety or adequacy of a particular course of
treatment...[which] remains a question of sound professional
judgment." Here, "Kashimawo's actions are not suspect," and "Carter
has not produced any evidence which could lead a rational juror to
conclude otherwise," noted Gleeson. 

"The worst that can be said of Dr. Kashimawo is that his refusal to
prescribe DDC and Interferon to Carter was negligent, and may have
constituted malpractice," Gleeson wrote. But malpractice, standing
alone, is not a constitutional violation, and Carter's current
status as an AIDS patient does not change this analysis. In Maynard
v. New Jersey, 719 F.Supp. 292 (D.N.J. 1989), the court held that
a prison physician's mere failure properly to diagnose and treat an
inmate with AIDS was not actionable under sec. 1983. Similarly, a
district court in Florida ruled in Wilson v. Franceschi, that a
prison doctor's delay in prescribing AZT to a prisoner with
AIDS-Related Complex was not a valid claim under sec. 1983.  M.N.S.

Hypodermic Needle as "Dangerous Instrument"

The N.Y. Appellate Division, 2nd Dept., ruled that a hypodermic
needle was a "dangerous instrument" within the meaning of the N.Y.
Penal Law when used by a robber to threaten a victim with the
possibility of HIV infection.  People v. Nelson, NYLJ, June 6,
p.31, col.6.  Defendant Douglas Nelson entered a restaurant and
threatened the employees with a hypodermic needle, "claiming that
the needle contained the AIDS virus.  The defendant held the
complaining witness by the right elbow and, touching the hypodermic
needle to her arm, threatened to jab her with it if she did not
open the register.  The defendant then took cash out of the
register and ran out of the store.  The hypodermic needle was not
discovered."  Appealing his robbery and criminal possession of a
weapon convictions, Nelson argued that he was not in possession of
weapon, defined in the Penal Law as a "dangerous instrument." 
Rejecting his appeal, the court held that the issue is not whether
a particular object is inherently dangerous, but rather whether it
was dangerous as used by the defendant.  In this case, the jury
could conclude that "the hypodermic needle, in the manner the
defendant threatened to use it, was readily capable of causing
serious physical injury."  A.S.L.

Social Security Ordered to Reconsider Disability Claim from HIV+
Applicant

In a brief memorandum and order filed June 27, U.S. District Judge
Raymond Dearie ordered the Social Security Administration to reopen
the disability benefit case of Michael Cohen, a person with HIV
infection who was denied benefits.  Cohen v. Chater, 1995 WL 405028
(S.D.N.Y.).  Dearie held that recently enacted regulations for
determining whether HIV-infected persons qualify for disability
benefits are mandatory, not merely directory.  Thus, once Cohen had
"documented" his HIV status, "the Commissioner is obliged to
consider whether the claimant has a listed manifestation or whether
he has functional limitations related to the virus" as provided in
20 CFR Pt. 505, Subpt. P, sections 14.00(D), 14.08(A)-(N).  Dearie
held that the Commissioner's failure to follow this requirement in
Cohen's case mandated reversal of the Commissioner's denial of his
appeal and a remand to the Social Security Administration.  A.S.L.

NY Appellate Division Rules on Housing Claims of HIV+ Homeless

In 1988 homeless persons in New York City who were HIV+ brought a
class action suit claiming they were entitled to the same shelter
benefits as those homeless with AIDS as defined by the Federal
Centers for Disease Control (CDC).  In 1989, class certification
was denied but the case was allowed to continue with the Coalition
for the Homeless as plaintiff.  In 1990, under a new
administration, the City announced a comprehensive plan entitled
"Continuum of Housing and Services for the Medically Frail and HIV-
Ill."  This plan divided the HIV+ homeless into three categories:
people who are HIV+ and asymptomatic; those who are HIV-ill and
capable of the Activities of Daily Living; and those who are HIV-
ill or have AIDS as defined by the CDC and need help with
Activities of Daily Living.  This case concentrates on the
differences in treatment between the second and the third group.

Under the city's current plan, homeless with AIDS or who are HIV-
ill and have difficulty with Activities of Daily Living are
provided increased services including noncongregate housing in
special separate units within the shelters.  These special units
provided extra staffing and medical care to deal with the special
needs of the people within the unit.  However, under the same plan,
people who are HIV-ill but capable of Activities of Daily Living
are housed in dormitory style housing with as many as twelve people
in one room with common eating and bathroom facilities.  The
plaintiffs in this case claim that due to the spread of
tuberculosis and other infectious conditions within the city
shelter system this sort of dormitory housing is hazardous to HIV-
ill people.  Furthermore, plaintiffs claim they should be entitled
to the same accommodations as homeless with AIDS or HIV-ill people
who need assistance with daily life.

During 1991 there was a trial at which there was extensive
testimony by medical and housing experts.  In 1992 the case was re-
opened for further testimony on the impact of a citywide outbreak
of tuberculosis.  The trial court ruled that plaintiffs were not
entitled to the same shelter and benefits as homeless with AIDS. 
However, the court did hold that housing provided for the HIV-ill
in the shelters was inadequate.  Under the court's order the city
may not house more than four people who are HIV-ill in one room,
the beds in the room must be at least eight feet apart, and there
must be adequate ventilation to meet the medical needs of the
residents.  Both sides appealed.

On June 8, the Appellate Division held that HIV-ill homeless are
not entitled to the same housing and services as those homeless
with AIDS.  However, the court did hold that the Supreme Court's
order regarding treatment of homeless who are HIV-ill does not meet
the minimum standards for sanitation, safety and decency and fails
to sufficiently protect them against the dangers of tuberculosis. 
Mixon v. Grinker, 1995 WL 351436 (1st Dept.).  The case was
remanded for further proceedings to determine the minimum housing
needs of homeless who are HIV-ill.  While the court held that there
was no constitutional or statutory requirement that the HIV-ill be
provided with the same housing benefits as those homeless with
AIDS, in dicta the court suggested that, as a practical matter, the
only way to provided minimally habitable housing to HIV-ill may be
to provide them with the same accommodations as those with CDC-
defined AIDS.  T.V.L.

Court Authorizes HIV Disclosure to Defendant in Biting Case

In an unusual interpretation of NY's HIV Confidentiality Law
(Public Health Law art. 27-F), Judge Joseph J. Maltese ruled that
a criminal defendant has a "right to know" that he was exposed to
HIV when he bit an HIV-infected gay man in a bias attack.  People
v. Pedro M., NYLJ, 6/28/95 (N.Y. Crim. Ct., Kings Co.).  The
complainant and the defendant both reside on the same floor of a
residential apartment building.  The defendant allegedly "hurled
anti-gay epithets" at the complainant, punched him "in the face and
body," and bit the complainant "over his denim shirt, causing the
skin to break, but not tearing the shirt."  The complainant's
sister informed the emergency telephone operator that her brother
was HIV positive when calling for emergency medical assistance. 
This information was written in the complainant's medical records
and the Emergency Medical Services report on the incident, which
was turned over to the defense attorney during discovery.  She then
told the district attorney that she had learned about the
complainant's HIV status and arranged to exchange her copy of the
EMS report for a redacted copy.  She also requested permission to
tell her client that he was exposed to HIV but agreed to forestall
until the court could rule on whether it was permitted under the
confidentiality law.

The complainant's HIV status is irrelevant to the guilt or
innocence of the defendant.  The D.A. argued that neither the
prosecution nor the defense attorney had any duty to inform the
defendant that the person he bit was HIV+.  Judge Maltese
disagreed: "At issue is the balancing of the rights of privacy and
confidentiality of the infected person with the unknowing person's
right to know in order to be tested and treated, along with
society's right to stop the spread of HIV," he wrote. 
"Notwithstanding the general proposition found in the Public Health
Law about the confidentiality of the `protected' (infected) person,
a greater right may be to protect the unknowing person who came
into contact with the legislatively `protected' (infected) person
in a way that would normally transmit the bodily fluids of the
other.  Fortunately, the Public Health Law does provide for court
ordered disclosure where there is `a clear and imminent danger to
an individual whose life or health may unknowingly be at
significant risk ...'  (PHL s2785[2][b].) It is not for the
prosecutor to assess the imminency of the danger to another's life
or health, instead it should be that of the person who unknowingly
came into contact with the blood or saliva of the infected person
to assess the risk and take whatever measures he or she believes
prudent to safeguard his or her health.  Clearly, early detection
of such a health risk is better, not only for the unknowing
individual, but to other unknowing persons that may subsequently
come into contact with that person.  In short, sometimes the rights
of the people and society outweigh the individual's right to
privacy and confidentiality."

Maltese ordered that the defendant merely be told he had been
exposed to HIV without disclosing the complainant's identity, and
expressed a preference that the defendant be told by a public
health counselor rather than by his attorney.  How this would
protect the confidentiality of the complainant with respect to his
HIV status is hard to imagine; the defendant certainly knows who he
bit and won't have to think very hard to make the connection.  It
would seem sufficient to authorize the defense attorney to mention
to her client that it would be prudent to get an HIV test after
having bitten a man whom the defendant believed to be gay, without
giving any indication that she had any knowledge about the
complainant's HIV status.  A.S.L.

Infected Nurse May Sue Employer in HIV-Transmission Case

A licensed practical nurse who contracted HIV after a co-worker
told her to prepare an HIV+ hospital patient for surgery may seek
punitive damages from her employer, even though worker's
compensation law normally provides an exclusive remedy, ruled the
Louisiana Court of Appeals, 3rd Circuit, on May 31.  The court held
in Juneau v. Humana Inc., 1995 WL 323276, that a state trial judge
erred when he granted summary judgment to the nurse's employer,
because the case contained "genuine issues" regarding notification
of the hazard, the lack of protective measures, and the intent of
the nurse's supervisor.

Rhonda Juneau was a nurse at Humana Hospital in Marksville. In
March 1991, she was asked by a co-employee to prepare an HIV+
patient for surgery.  The man was "actively bleeding at the time."
While shaving him, Juneau was splashed with blood in her eyes,
nose, and mouth.  Juneau alleged that the co-worker knew of the
patient's HIV status but did not inform her. Eight months later,
she tested HIV+.  Juneau filed a petition for damages, alleging
that her infection was caused by the negligent, grossly negligent,
or intentional conduct of Humana, Inc. and her immediate
supervisor. She later sought to amend the complaint by adding a
claim for punitive damages.  The trial judge denied Juneau's
supplemental petition and granted the defendants' motion for
summary judgment on the basis of worker's compensation exclusivity.

Reversing and remanding, the Court of Appeal noted that under
Fricke v. Owens Corning Fiberglas Corp., 571 So.2d 130 (La. 1990),
"an employee may defeat a motion for summary judgment based on the
exclusivity of worker's compensation laws, even if the employee
consents to contact with the offensive substance, if the employee
is induced to consent by substantial mistake as to the nature of
the substance and the mistake had been known by the employer or
induced by the employer's misrepresentation."                    Since there was
a need to determine "subjective facts such as intent, motive,
knowledge, or malice" on the part of Humana, Inc. and Juneau's
supervisor, summary judgment was inappropriate.  M.N.S.

New Jersey Court Releases Decision on Testing of Juveniles Accused
of Sexual Assault

We previously reported on a March 4 ruling by New Jersey Superior
Court Judge Jose L. Fuentes holding unconstitutional a state law
requiring HIV testing of juveniles charged with sexual assault. 
After some delay, Judge Fuentes issued a written opinion on June
12.  State in the interest of J.G., N.S. and J.T., 1995 WL 251592
(N.J.Super.Ct., Chancery Div., Family Part, Hudson County).  The
judge found that testing violated the defendants' rights of privacy
and was not justified by any medical needs of the victims,
crediting expert testimony that "the HIV status of the alleged
assailant or even the actual assailant would provide no useful
information to a physician in his/her attempt to diagnose the
victim of the assault" since the victim would still have to be
tested to confirm HIV status prior to initiating treatment with
powerful drugs that can have significant toxic side effects. 
Furthermore, testing the assailant might be harmful to the
psychological health of the victim, since a positive test from the
assailant would not necessarily mean the victim is positive, and
the victim would then have to be tested repeatedly, thinking she is
at risk for AIDS when she may not be.  The court said that testing
the victim is the best approach to dealing with the victim's health
concerns, and noted that information about the defendant's HIV
status might be used to the victim's disadvantage if not properly
handled.  A.S.L.

Kentucky Appeals Court Holds HIV Infection Not a Bar to Child
Custody

The Court of Appeals of Kentucky held that HIV infection is no bar
to maintaining custody of a child.  In Newton v. Riley, 1995 WL
340067 (June 9), each member of a divorced couple had custody of
one of their two children.  Ms. Riley remarried and her new spouse
became infected with HIV, which developed into AIDS.  Mr. Newton,
Ms. Riley's ex-husband, sought sole custody of both children.

Judge Gardner noted that, in determining custody awards, the
"mental and physical health of all individuals involved" was a
statutorily required consideration.  However, the court noted that
this consideration focused mainly on the parent's mental or
physical ability to care for the child.  Finding no Kentucky
authority on point, the court looked to Indiana, which has held
that "proof of HIV infection in a parent does not pose a direct
threat to the child's health and cannot serve as the sole ground
for modifying custody."  Medical testimony indicates that there are
no known cases of HIV transmission by casual contact between a
parent and child.  Stewart v. Stewart, 521 N.E.2d 956 (Ind. 1988). 
Gardner considered reliance on "the medical community's increased
understanding of HIV and its modes of transmission" as dispositive
of the issue, and found no error in the lower court's conclusion
that "the best interest of the children is served via the existing
custodial arrangement."  R.B.

Court Upholds Jury Verdict in HIV Confidentiality Case

In Doe v. Southern Pennsylvania Trans. Auth., 1995 WL 334290 (E.D.
Pa. June 2), the court let stand a jury verdict and attendant
damages award on a plaintiff's Section 1983 claims that the
defendants' revelations of his HIV status had deprived him of his
constitutional right to privacy.  John Doe, a psychologist, worked
for SEPTA, a self-insured state agency.  When Doe was prescribed
drugs specific to his HIV treatment, he approached a supervisor
about whether his name would be associated with the drugs in
SEPTA's records.  After getting reassurances, he filled his
prescriptions through SEPTA's prescription benefit plan.  Judith
Pierce, a SEPTA administrator charged with reducing the cost of
benefits, reviewed reports which showed employee names and the
names of drugs they were prescribed.  She researched the drugs Doe
received and learned that they were specific to HIV treatment. 
Pierce discussed the report and Doe's HIV status with other SEPTA
employees.  Doe later learned of Pierce's indiscretions and, though
he did not suffer any direct negative consequences in the terms and
conditions of his employment, became depressed by the incident.  At 
trial, the jury found in Doe's favor and awarded him $125,000. 

Granting a new trial on one of the plaintiff's claims (for failure
to train employees concerning the constitutional right to privacy),
the court otherwise denied the defendants' requests for a new trial
and their arguments that the jury's damage award should be reduced. 
The court affirmed its holding that Doe had, as a matter of law, a
reasonable expectation of confidentiality in the report linking his 
name with HIV-specific medications and thus, that the Constitution
protected his right to privacy in this information.  The court then
concluded that the jury could reasonably have found, balancing the
government's interest in access to the information with Doe's
interest in keeping it private, that the defendants had violated
Doe's constitutional right to privacy.  Applying a multi-factor
test, the court found sufficient evidence in the record of the
"hysteria" surrounding AIDS and HIV supported the jury finding that
subsequent disclosures could potentially harm Doe.  The court never
specifically describes this "hysteria."  A later reference in the
opinion seems to tie it to Doe's status as a health care worker. 
The hysteria may be a reference to the public debate involving
Kimberly Bergalis, a Florida woman with AIDS who claimed she had
been infected by her HIV positive dentist.  The jury could also
have reasonably concluded that Doe had sufficiently proven injury. 
Doe had not suffered any official negative employment consequences,
but had testified that he feared a negative reaction from Pierce. 
The jury could also have reasonably found that it was possible to
learn Doe's diagnosis from the report, that the report contained
(although indirectly) the private information that Doe was treated
for HIV, that there were no safeguards in place to prevent the
unauthorized disclosure of Doe's HIV status, that the defendants
had not shown any need to access the names of drugs prescribed
linked with employee's names, and that there was no public policy
concern militating toward allowing access to the private
information.  

The court also found sufficient evidence from which the jury could
have concluded that Pierce acted intentionally or with reckless
disregard to Doe's privacy rights in that she researched his
medications knowing she would find his diagnosis in the process,
that she showed the report to others and that she discussed the
report with others, in one case using a speaker phone.

After granting a new trial on Doe's failure to train claim (because
Doe had not identified what training would have prevented the
disclosure or that training would have reduced the risks of further
invasions of privacy), the court turned to the defendants' request
for a reductions of damages.  Doe's proof of damages (which
consisted solely of his own testimony that he was upset by the
incident and sought and received anti-depressants because of it)
was sufficient to support the jury finding of actual injury, the
court held.  Nor was the court willing to reduce the damages as the
award was not so unreasonable as to shock the court's conscience. 
Here the court descends into what may be described as abject pity
for the plaintiff, stating that "these events occurred at a time
(1992) when public knowledge regarding AIDS was limited and AIDS
hysteria was prevalent...."  Moreover, the jury was free to 
consider, the court held, Doe's short life expectancy and the
social stigma of HIV.  It is hard to complain about a decision
where the court seems to sincerely wish to do the right thing. 
Still, one wishes the law were able to find sympathy for people
with HIV without rendering them as social outcasts entirely
overwhelmed by their health problems.  D.W.

HIV+ Prisoner Loses Bid for Separate Quarters

Ruling on May 31 in Reiner v. Sheahan, a United States district
court in Illinois granted the defendant county's motion to dismiss
a county prisoner's pro se claim under 42 U.S.C. section 1983. 
1995 WL 330902.  Finding no colorable constitutional claim raised
by the prisoner's assertion that, being HIV+ he should have been
segregated from the general prison population, the court concluded
that the prisoner suffered no harm from the exposure.  The
prisoner's claim apparently was predicated on his belief that he
would be exposed to disease-causing agents through his contact with
other inmates, but the court held that the mere possibility of
contracting an illness -- as opposed to actually contracting one --
was insufficient to state a claim.  The court also rejected, as
raising nothing more than a typical overcrowding complaint, the
prisoner's claims that he was required to sleep on the floor, his
prison tier was overcrowded, and the bathroom facilities were dirty
and lacked privacy.  R.M.

Federal Court Sustains Employment Termination of PWA Who Filed
Disability Claim

Opening up a split among federal courts as to whether a PWA who
files for disability benefits after his discharge thus forfeits his
right to bring a discrimination action under the ADA, U.S. District
Judge Clarence Newcomer dismissed discrimination claims by Leonard
C. McNemar against The Disney Stores, Inc., a wholly owned retail
subsidiary of the Walt Disney Company.  McNemar v. The Disney
Stores, Inc., 1995 WL 390051 (E.D.Pa. 1995).  Judge Newcomer
specifically disagreed with the rationale of Smith v. Dovenmuehle
Mortgage, Inc., 859 F.Supp. 1138 (N.D.Ill. 1994), one of the first
employment cases to be decided under the ADA, in which the court
rejected the use of judicial estoppel based on a disability claim
in a subsequent discrimination action.

McNemar was assistant manager of Disney's retail store in Cherry
Hill, New Jersey.  He was diagnosed with AIDS in October 1993 and
told a few close friends at work, including the store manager.  He
was briefly hospitalized at that time.  Upon returning to work
November 8, he was questioned by the District Manager about whether
rumors of his AIDS condition were true.  He denied that he was HIV+
at that time.  On November 16, McNemar pulled $2 from the cash
register rather than go to his locker in the back of the store and
asked an employee to run to another store to buy him a pack of
cigarettes.  The employee reported this to Disney's loss control
line, which pays $100 to employees who report unauthorized
appropriation of Disney cash or property.  When supervisors
confronted McNemar with this report, he admitted what had happened,
broke down in tears and apologized.  He was suspended and then
discharged.  Disney has a consistently publicized and applied
policy of discharging employees found to have taken company
property, regardless of how small the amount, and had done so in
other cases involving comparable amounts of money.  After his
discharge, McNemar filed for disability benefits, submitting an
affidavit that he was "totally and permanently" disabled.  He
subsequently sued in federal court, claiming disability
discrimination under federal and state law, discrimination under
sec. 510 of ERISA (his termination prevented him from vesting in
the pension plan, which he would have done in eleven months), and
violations of state confidentiality and tort law.

Ruling on Disney's motion for summary judgment, Judge Newcomer
found that McNemar's affidavit filed with federal and state
benefits agencies estopped him from asserting that he is a
"qualified person with a disability" under federal or state law,
and thus that he could not make out a prima facie case under ADA,
the New Jersey civil rights law, or ERISA, all of which require
that the plaintiff allege continued ability to perform the job in
question.  Contrary to the Smith court, Newcomer asserted that this
does not place the plaintiff in an "untenable" position, since the
plaintiff may sue under ADA and secure complete relief if he
remains qualified to work.  The judge asserted that Congress did
not provide for a duplicative recovery (ADA/state discrimination
remedy plus disability benefits) for the plaintiff.

Newcomer also ruled against McNemar on the state law claims,
finding that the District Manager's inquiry was not an "invasion of
privacy," and that Disney did not breach McNemar's right of
confidentiality when the new assistant manager responded to a
telephone inquiry from a friend of McNemar by stating that he had
resigned due to AIDS.  Furthermore, Newcomer rejected McNemar's
claim that Disney's conduct in summarily terminating a PWA over a
$2 incident constituted intentional infliction of emotional
distress, finding that Disney's conduct was "not outrageous as a
matter of law."

Decisions like this one bring to mind Dickens' statement that if
this is the law, then the law is an ass.  A.S.L.

Newspaper Wins Appeal in AIDS Libel Case

In Cruz v. Latin News Impacto Newspaper, 1995 WL 351368 (June 8),
the N.Y. Appellate Division granted the defendant's motion for
summary judgment on the plaintiff's claims of libel and Civil
Rights Law violations for the unauthorized advertising use of
likeness, after defendant, a Spanish-language newspaper, published
a photograph and an article about plaintiff, describing her as
having AIDS.  On the libel claim, the plaintiff argued that the
defendant could not establish its defense of truth because at the
time of the publication, although plaintiff would have been
diagnosed with AIDS under the current CDC regulations, her symptoms
did not define her as having AIDS under the regulations then in
effect.  However, the court implied that this argument was
illogical since when it changed the regulations a few weeks after
the article's publication, "the CDC was simply updating an outmoded
and inadequate definition of AIDS."  Yet, even if the defense of
truth could not be established, the court dismissed the libel claim
because the defendant had not acted "in a grossly irresponsible
manner" in the gathering and reporting of this article.

Plaintiff also claimed that because the article was <160>an
advertisement in disguise," the defendant violated the Civil Rights
Law secs. 50 and 51 by unauthorized advertising use of a
photograph.  Rejecting this argument, the court held that the
disguised advertisement provision is narrowly construed, concluding
the article's brief favorable mention of a real estate agency did
not meet such a standard.  Because the defendant did not appeal the
denial of its motion for summary judgment on plaintiff's action for
trespass, the court did not rule on that issue.  C.B.R.

Blood Bank's "Lookback" Procedure Governed by Short Statute of
Limitations

A federal district court held that a negligence action against a
blood bank conducting a "lookback" procedure is subject to
Missouri's 2-year time-bar for claims against health care
providers.  Smith v. American Red Cross, 1995 WL 335415 (E.D.Mo.
March 27).  In 1987, plaintiffs Mr. and Mrs. Smith discovered that
Mr. Smith had contracted HIV from tainted blood transfusions
received in 1983 and 1984.  The blood was collected in 1983 by
Scott Air Force Base ("SAFB") operating a joint blood donor effort
with the Red Cross.  In 1986, a national panel of blood collectors
recommended the implementation of "lookback" procedures to test
blood previously donated by individuals who later tested HIV+. 
SAFB performed lookback procedures which revealed negative HIV test
for the recipients of blood donated in 1985 and 1986 by the
individual whose blood Mr. Smith received.  As a result of this
discovery, SAFB ceased further lookback procedures.  In 1989, the
Smiths brought suit against the Red Cross, which, in 1990,
conducted its own lookback procedure to test the blood which Mr.
Smith had received.

In the 1989 action, the Eighth Circuit affirmed a summary judgment
motion in favor of the Red Cross as to Mr. Smith's claim that he
became infected due to negligence by the Red Cross, finding that
his claim was barred by Missouri's two-year statute of limitations
for actions against health care providers.  Smith v. Paslode Corp.,
7 F.3d 116 (8th Cir. 1993).  The Circuit Court, however, remanded
Mrs. Smith's claim that the lookback procedure was conducted
negligently, for a determination of whether that claim was also
time-barred.  In finding the time-bar applicable, Judge Hamilton of
Missouri's Eastern District held that the Red Cross was a "health
care provider" within the meaning of the statute of limitations
when it conducted the procedure.

The court found that the lookback procedure was not simply
ministerial but rather was "related to health care," and thus
actions based on negligence in conducting such a procedure was
governed by the short malpractice statute.  The court found that
the Red Cross's decision not to implement the lookback procedure
until 1986 was based on medical knowledge, since such a procedure
was subjected to vigorous debate within the medical community.  The
Red Cross's execution of the procedure related to health care,
since it was supervised by medical personnel.  Finally, a decision
to terminate a lookback procedure with regard to a specific donor
was also related to health care, since it was based on medical
evidence regarding HIV.

In rejecting plaintiff's argument that she was not a "consumer of
health care services" since she had not received any health care
treatment from the defendant, the court noted that the time-bar not
only applied to actions brought by health care consumers but to all
actions against health care providers for malpractice, negligence,
error, and mistake.  However, Judge Hamilton noted that even if the
court were to hold that the time-bar applied only to health care
consumers, it would find that Mrs. Smith was a consumer of the Red
Cross lookback procedure, a health care related activity.

Mrs. Smith's final attempt to avoid application of the time-bar, by
alleging fraud and continuing negligence on the part of the Red
Cross in failing to institute its own lookback procedure until
1990, did not persuade the court.  Judge Hamilton was unable to
find the "venality and corruption" requisite to fraudulent intent
by the Red Cross, which had not responded when SAFB ceased lookback
when it learning that the two most recent recipients of the blood
received by Mr. Smith had tested negative for HIV.  The court
disposed of the continuing negligence claim by failing to find a
"continuing doctor-patient relationship,", an "act of neglect," or
"continuing care and treatment" with respect to the Red Cross and
Mrs. Smith.  The time-bar was applied and the summary judgment
motion granted in favor of the Red Cross.  R.B.

Federal Court Orders Sec. 504 Trial for Wrongly Segregated Inmate
Following Misdiagnosis of AIDS by Prison

A prison inmate who was misdiagnosed with AIDS and segregated from
the general prison population stated a valid claim for
discrimination under sec. 504 of the Rehabilitation Act of 1983. 
Timmons v. NY State Dept. of Correctional Services, 1995 WL 319925
(S.D.N.Y., May 25).  Edward Timmons is an inmate at the Green Haven
Correctional Facility who has been in the custody of the State of
New York since 1984.  In August 1986 Timmons developed skin
lesions.  A physician's assistant at Green Haven took a biopsy and
sent it to a laboratory for analysis.  The pathological diagnosis
was "consistent with Kaposi's sarcoma."  From that diagnosis the
medical staff at Green Haven concluded that Timmons had AIDS.  They
did not confirm the diagnosis with an HIV test.  After being told
he had AIDS, Timmons was transferred to the AIDS room at Green
Haven with other AIDS-afflicted inmates.  After the diagnosis
Timmons requested a blood test to confirm the diagnosis but it was
refused.  After filing a grievance in 1987, Timmons was finally
given a blood test for AIDS.  That test and subsequent tests were
all negative for the HIV and Karposi's sarcoma.  

Timmons sued pursuant to 42 U.S.C. secs. 1983 and 1985, alleging
that his constitutional rights were violated by not confirming his
AIDS diagnosis with a blood test and by segregating him in an AIDS
Room.  He also alleged violation of sec. 504 by virtue of his
segregation in the AIDS room.  Judge Leonard B. Sand dismissed the
sec. 1983 and 1985 claims.  The defendants tried to have the sec.
504 claim dismissed, claiming qualified immunity.  Judge Sand held
that the defendants were not entitled to qualified immunity and the
case should proceed to determine whether Timmons qualified as
handicapped within the meaning of the Act.  T.V.L.

Pennsylvania Court Revives HIV-Transfusion Case Against Doctor

While sustaining some of the trial court's dismissal actions, the
Pennsylvania Superior Court reversed on one malpractice count
against a doctor who had ordered blood transfusions after
mastectomy surgery in December 1994, which led to the plaintiff's
decedent's death from AIDS a few years later.  Hoffman v.
Brandywine Hospital, 1995 WL 383871 (June 29).  What was at issue
was whether the plaintiff stated a viable claim through the
affidavit of an expert medical witness, who opined that the doctor
erred in ordering a transfusion under the circumstances because
there were other, less invasive methods of dealing with the
patient's problems at that point in her treatment.  The court found
this was sufficient to support a prima facie case for malpractice,
and remanded the matter for trial.  However, the court upheld
dismissal of malpractice claims against the decedent's family
physician; plaintiff claimed that the physician was in over his
head dealing with AIDS, and that his delay in referring decedent to
an infectious disease specialist hastened the development of
opportunistic infections and the decedent's death.  The court found
expert testimony on this point to be too equivocal to sustain a
cause of action against the doctor.  A.S.L.

Pennsylvania Court Revives Claim Against Lawyer for Wrongly Naming
Doctor as Defendant in Transfusion AIDS Case

Take care in preparing your pleadings is the message sent by the
Pennsylvania Superior Court in Gentzler v. Atlee, 1995 WL 380903
(June 28), in which the court reversed a dismissal and reinstated
a claim against a lawyer who wrongly included the plaintiff
physician as a defendant in an underlying medical malpractice suit
involving HIV transmission.  The doctor was the decedent's
cardiologist; he sent the patient to a hospital for tests (which
others performed), based on which the patient had heart surgery and
acquired HIV infection from transfusions.  The cardiologist played
no role in the surgery.  The doctor was sued on two theories: lack
of informed consent and negligence in screening blood products
administered to the decedent.  The doctor was able to get claims
against him dismissed by the trial court, and then brought suit
against the plaintiff's lawyer for wrongfully dragging him into the
litigation, claiming the lawyer had no probable cause to believe
the doctor was liable to the decedent.  After a lengthy analysis of
Pennsylvania law, the court concluded that the claim against the
lawyer should not have been dismissed, because there was a valid
argument that the lawyer had no basis in existing law or any likely
extension of existing law for suing the doctor.  A.S.L.

Connecticut Appeals Court Adopts Narrow View of HIV Confidentiality
Law

Ruling in Jane Doe v. Marselle, 1995 WL 390972 (July 4), the
Connecticut Appellate Court affirmed dismissal of claims against
Dr. Dionisio Flores for alleged violation of the state's HIV
confidentiality law.  The plaintiff, a patient of Flores, alleges
that both Flores and his surgical assistant, Marselle, violated the
law when Marselle revealed information about her HIV status (after
consulting with Flores) to the patient's sons, who were known by
Marselle to be IV-drug users.  The statute authorizes private
damage actions for "wilful" violations of the statute.  The trial
court granted Flores' motion to dismiss the claims against him on
the ground that the complaint failed to allege a wilful violation. 
The plaintiff argued that "wilful" should be interpreted to mean
"intentional" as opposed to "accidental," and contended that the
factual allegations of the complaint were sufficient to raise an
inference of wilful violation.  The court disagreed, holding that
under Connecticut tort law "wilful" means that the defendant-actor
intended to injure the plaintiff-victim, and that the factual
allegations did not meet this more difficult standard.  The claims
against Marselle were not involved in decision of this motion,
which presented a case of first impression in construing the
statute.  A.S.L.

Jury Awards $4.1 Million for Mistaken AIDS Treatment

A jury in U.S. District Court awarded $4.1 million in damages to a
gay ex-priest after finding that his doctor had negligently
subjected him to AIDS-related treatments for five years without
ever confirming that he was HIV+ and that a medical lab had botched
his original HIV tests.  The plaintiff, Raymond Machesney, does not
have HIV-infection.  Defendant Dr. Larry Bruni, allegedly relied on
Machesney's report that a prior doctor had diagnosed his HIV
infection, which was allegedly misdiagnosed as a result of
negligence by the laboratory at D.C.'s Providence Hospital, which
was supervised by defendant K.L. McCoy M.D. & Associates.  Bruni's
doctor decried the verdict as totally unfair to his client who had
relied in good faith on a prior lab test result, and indicated he
would file a motion with District Judge Sporkin to overturn the
June 21 verdict.  Washington Blade, June 30.  A.S.L.

Australian Territory Legislates on Euthanasia

The small Northern Territory of Australia has enacted a euthanasia
statute, based on the medical model.   A person can be euthanased
only by a doctor and after many conditions have been satisfied.  
The primary criterion is proximity to death, not quality of life. 
 AIDS activists in New South Wales have drafted a bill to allow
people to self-deliver without medical intervention and where they
are suffering a terminal illness or poor quality of life.   A
number of Australian states are now considering euthanasia
legislation although the churches, christian and muslim, are waging
a vociferous campaign against these proposals. D.B.

NY Appellate Division Quashes Injunction Against Human Rights
Division in AIDS Discrimination Matter

The N.Y. Appellate Division, 2nd Department in Anker Mgmt Corp. v.
State of New York, Division of Human Rights, 1995 WL 325416 (May
30), reversed an order of the trial court enjoining the defendant
from taking any administrative action on a complaint filed by an
employee of the plaintiff.  The employee complained that the
company terminated his employment after he revealed that he was
HIV+ and would be hospitalized for a period of time.  Anker sought
to enjoin the action on the grounds that the employee waived his
right to judicial remedies by his participation in an arbitration
proceeding and by virtue of a consent arbitration award.  First the
court held that under section 297 of NY's Executive Law, the
plaintiff's action would lie only to prevent an official from
acting in excess of his or her jurisdiction.  The court also held,
as to the arbitration argument, that Anker, under section 298 of
the Executive Law, must exhaust its administrative remedies first
before it was entitled to judicial review. M.S.R.

False Imputation of HIV-Infection in Judicial Proceedings Held
Privileged

Bryan Mandell brought a personal injury action in which the
defendant retained Comprehensive Rehabilitation Associates, Inc.
(CRA) for the purpose of coordinating an independent medical
examination of Mandell during discovery.  As part of this process,
CRA solicited an opinion from Dr. Myron Shafer regarding Mandell's
prognosis if he was found to be HIV+.  CRA forwarded its report to
the defendant's attorney for use in the lawsuit; the reported CRA
solicited form Shafer falsely stated that Mandell was HIV+. After
this came to Mandell's attention, he sued CRA and Shafer, alleging,
inter alia, negligent infliction of emotional distress and
defamation.  CRA moved to strike these counts, arguing privilege. 
Connecticut Superior Court Judge Holzberg agreed with CRA, finding
that any statements made within the context of this discovery
process was privileged, and as privileged comments could not be
made the subject of a tort action.  Mandell v. CRA, 1995 WL 405683
(June 30).  A.S.L.

AIDS Law & Society Notes

On June 15, the White House announced formation of an advisory
council on HIV/AIDS issues to be chaired by R. Scott Hitt, an
openly gay physician and AIDS policy leader from California.  

The New York Law Journal reported July 10 that New York Supreme
Court Justice Arthur W. Lonschein signed an order shutting the
Austin Theater in Kew Gardens after lawyers from the NY City
Corporation Counsel's office presented evidence of 80 incidents of
"risky" sexual activity on the premises.  This is the fifth adult
theater shut down since a group of AIDS activists pressured the
Giuliani Administration to take action against unsafe sex in public
places.  The decision by Justice Diamond shutting down the New
David Cinema in Manhattan has been published: City of New York v.
Dana, 1995 WL 323079 (N.Y. Sup.Ct., N.Y. County, April 16).  

California Attorney General Dan Lungren issued a formal opinion on
June 16 that various needle-exchange programs being run with the
approval of municipal governments are illegal, but the San
Francisco Chronicle reported June 17 that Mayor Frank Jordan "vowed
that he would risk going to jail rather than scrap the program
credited with slowing the spread of AIDS among San Francisco drug
users."  It was reported that the opinion was solicited by
Republican Assemblywoman Barbara Alby, who hoped to head off a move
by Sacramento County to start a needle-exchange program.  At least
six other California jurisdictions have cooperated with private
needle-exchange efforts, including Los Angeles.  The potential
impact of Lungren's announcement on these programs is uncertain.  

Senator Jesse Helms (R.-N.C.) is reportedly using the prerogative
of Senate rules to put a "hold" on consideration of the Ryan White
Care Act renewal legislation.  Helms was quoted in The New York
Times as being opposed to renewing AIDS care funding at the same
level, characterizing as "deliberate, disgusting, revolting
conduct" the behavior that leads to AIDS.  This evoked almost
unanimous condemnation in the national press, many columnists and
editorialists pointedly observing that the federal government
spends much more on tobacco-related illnesses (and spends millions
subsidizing tobacco farmers who are Helms' core constituents).
A.S.L.

PUBLICATIONS NOTED & ANNOUNCEMENTS

ANNOUNCEMENTS

The National Educational Foundation for Individual Rights is
planning to publish The International Lesbian and Gay Legal
Resource Guide and Attorney Directory this fall.  They hope to
include a "comprehensive guide to lesbian, gay and bisexual legal
organizations and resources with a directory of lesbian, gay and
bisexual friendly legal professionals currently practicing in the
United States and around the world."  Individuals who want to be
listed in the Directory should send their name, firm name (if any),
address, telephone number, fax number, e-mail address, and areas of
practice in a signed letter specifically authorizing publication
to:  Legal Director c/o Peter Kearns, 630 Alvarado St., #205, San
Francisco, CA 94114.  For further information, call Peter Kearns at
415-550-7479.  DON'T DELAY IF YOU WANT TO BE LISTED, SINCE LISTINGS
MUST CLOSE SOON FOR A FALL 1995 PUBLICATION DATE!

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Custodio, Gloria M., The Discourse of Discrimination: How Lesbian
Mothers Are Judged in Child Custody Disputes, 63 Revista Juridica
Universidad de Puerto Rico 531 (1994).

Ettelbrick, Paula L., Not All Speech Is Equal: Some Thoughts on
Lesbians, Free Speech and Harassment, 3 Temple Pol. & Civ. Rts. L.
Rev. 59 (Fall 1993/Spring 1994).

Hebert, L. Camille, Sexual Harassment Is Gender Harassment, 43 U.
Kansas L. Rev. 565 (April 1995).

McKenna, Ian B., Canada's Hate Propaganda Laws -- A Critique, 26
Ottawa L. Rev. 159 (1994).

Robson, Ruthann, Pedagogy, Jurisprudence, and Finger-Fucking:
Lesbian Sex in a Law School Classroom, chapter 2 in Karla Jay, ed.,
Lesbian Erotics (N.Y.U. Press, 1995).

Sandler, Bernice Resnick, Sexual Harassment and the First
Amendment, 3 Temple Pol. & Civ. Rts. L. Rev. 49 (Fall 1993/Spring
1994).

Sherman, Jeffrey G., Love Speech: The Social Utility of
Pornography, 47 Stanford L. Rev. 661 (April 1995).

Tedhams, David P., The Reincarnation of "Jim Crow:" A Thirteenth
Amendment Analysis of Colorado's Amendment 2, 4 Temple Pol. & Civ.
Rts. L. Rev. 133 (Fall 1994).

Student Notes & Comments: 

Farrell, Megan E., Baehr v. Lewin: Questionable Reasoning; Sound
Judgment, 11 J. Contemp. Health L. & Pol. 589 (Spring 1995).

Madrid, Alfonso, Rational Basis Review Goes Back to the Dentist's
Chair: Can the Toothless Test of Heller v. Doe Keep Gays in the
Military?, 4 Temple Pol. & Civ. Rts. L. Rev. 167 (Fall 1994).

Specially Noted:

Vol. 1, No. 2 of the National Journal of Sexual Orientation Law is
now available on-line to persons with e-mail access.  Anyone
seeking a copy of the table of contents with instructions on how to
retrieve the articles can e-mail the message: subscribe gaylaw
YOUR-FIRST-NAME YOUR-LAST-NAME to the following address:
listserv@unc.edu.  To receive a current index of all available
articles, send the message: index gaylaw to the same address.

The April 1995 issue of Public Management magazine (vol. 77, no. 4,
p. 9) includes an article titled Where Local Laws Prohibit
Discrimination Based on Sexual Orientation by James W. Button,
Barbara A. Rienzo and Kenneth D. Wald.  The co-authors, professors
at the University of Florida, report on their extensive study of
lesbian and gay rights municipal ordinances and their impact on the
community.  They conclude that such laws impose negligible
enforcement expenses, generate few formal complaints, and have
little discernible effect on business activities either positive or
negative.  They also noted that about 20% of the population lives
in communities with bans against sexual orientation discrimination
(including 75% of the cities with populations of 1 million or
more).  Public Management is published by the International
City/County Management Association, 777 N. Capitol St., N.E.,
Washington D.C. 20002-4201 (202-962-3619).

The June 1995 issue of the ABA Journal included an article by Jeff
Barge, "More Firms Offer Benefits for Gay Couples" (pp. 34-35) that
included lists of firms offering partnership benefits in New York,
Washington, D.C., and California, and also a list of insurance
companies that have agreed to sell such coverage. A similar article
appeared in the June 5 National Law Journal, written by Ann Davis,
under the title: "`And What About Domestic Partnerships?". This
article emphasized the new assertiveness of top lesbian and gay law
students in asking firms whether they offer such benefits. 

BNA's Daily Labor Report for May 30, 1995, included a two-page
"Special Report" by Jeffrey Goldfarb, titled: "Courts' Dichotomy on
Same-Sex Cases Makes Tough Job Tougher For Managers." The report
focused on the sharp split in the courts over whether same-sex
harassment in the workplace is actionable under Title VII and
analogous state sex discrimination laws.

AIDS & RELATED LEGAL ISSUES: 

Bayer, Ronald, Rethinking Aspects of AIDS Policy, 11 J. Contemp.
Health L. & Pol. 457 (Spring 1995).

Magnusson, Roger S., and Hayden Opie, HIV and Hepatitis in Sport:
A Legal Framework for Resolving Hard Cases, 20 Monash U. L. Rev.
214 (1994).

Murphy, Thomas P., Disabilities discrimination Under the Americans
With Disabilities Act, 36 Catholic Lawyer