LESBIAN/GAY LAW NOTES Lesbian & Gay Law Association of Greater New York ISSN 8755 9021 September 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: 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; Robert Bourguignon, 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) * * * * * Maine Supreme Court OK's Ballot Question; Supreme Court Appeal Filed on Cincinnati Measure and Argument Scheduled on Colorado Amendment 2 In a unanimous ruling on July 26, the Maine Supreme Judicial Court rejected a challenge to a ballot question proposed by Concerned Maine Families (CMF), authorizing the measure to go on the general election ballot in November. Wagner v. Secretary of State, 1995 WL 458937. This will be the first state-wide vote on a "stealth initiative" that doesn't mention homosexuality but that would have the effect of voiding local gay rights legislation in Portland and declaring that the state legislature should not enact such legislation in the future. The CMF initiative proposes a statute that would void or render unenforceable any local or state law, rule, regulation, etc., recognizing any "protected classes or suspect classifications under state or local human rights laws" other than the following: "race, color, sex, physical or mental disability, religion, age, ancestry, national origin, familial status, and marital status." If passed it would void Portland's sexual orientation discrimination ordinance, and would vitiate a pending challenge to the constitutionality of a referendum in Lewiston that repealed that city's gay rights law. The state legislature passed a sexual orientation discrimination law in 1993, but it was vetoed by the governor, so no state law would be affected. The main argument in the challenge brought by Maine Civil Liberties Union and Gay & Lesbian Advocates and Defenders, the Boston-based public interest law firm, concerned the effect of the initiative on future legislation. Section 18 of the Maine Constitution, which authorizes initiatives, does not allow them to be used to amend the constitution. MCLU and GLAD argued that by appearing to restrict future legislative action, CMF was trying to redefine the authority of the legislature, in effect amending the constitution. However, agreeing with the lower court, the Supreme Judicial Court, in its opinion by Justice Clifford, found that the initiative merely proposed a statute dealing with interpretation and application of existing law, which did not necessarily bind the legislature as to future action, although the court disclaimed rendering any interpretation of the initiative's effect. The court also rejected the argument that the initiative was misleading. Challengers argued that because it appeared to restrict the legislature but might be construed not to do so, it could mislead both voters who favored or opposed gay rights. The court did not provide much explanation for this ruling, merely asserting that nobody who read the measure would be misled, even though the court itself stated earlier in the opinion that "the impact of the initiated legislation on other statutes and on future lawmaking is not certain." The court pointedly refrained from attempting to construe the measure, claiming that the question of its meaning was not "ripe" unless it passed. The next few months will provide a severe test of the political skills of the gay rights movement in Maine, as an attempt is made to educate voters about the potential meaning of an innocuous- appearing ballot measure that some might unwittingly construe as a proposed civil rights law. "Democracy" triumphs! Those who wish to assist Democracy may send their donations to "Maine Won't Discriminate," P.O. Box 11061, Portland, Maine 04104-9741. On August 9, plaintiffs in the case challenging Cincinnati's Issue 3 filed their petition with the Supreme Court, seeking review of the 6th Circuit's decision in Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261 (May 12). The court of appeals reversed a district court ruling that Issue 3 violated the constitutional rights of equal participation in the political process by lesbians, gay men and bisexuals in Cincinnati, on alternative fundamental rights and suspect classification analyses. The court of appeals said that gays were not a cognizable class for equal protection analysis, and disputed the district court's identification of a fundamental right of participation. In urging the Court to take the case, petitioners suggest that the Court address whether there is a rational basis for the anti-gay ballot measure. * * * The Supreme Court scheduled oral argument in Romer v. Evans, No. 94-1039, for Tuesday, October 10, during the second argument week of the 1995 Term. In Romer the Colorado Supreme Court (882 P.2d 1335 [Colo. 1994]) found Amendment 2 unconstitutional on the equal participation theory. It seems likely that the Court may delay deciding the Cincinnati cert petition until after it hears argument in Romer. If a majority of the Court is inclined to affirm the Colorado Supreme Court ruling, then the Court might summarily reverse the 6th Circuit decision without need for briefing or oral argument. If a majority is inclined to reverse Romer, then argument would be needed in the Cincinnati case to address the alternative theory relied on by the district court in that case. A.S.L. LESBIAN/GAY LEGAL NEWS Clinton Ends Gay Security Clearance Ban Overturning a federal policy that dates from the early days of the Cold War, President Bill Clinton issued an Executive Order on Access to Classified Information on August 4 that forbids discrimination on the basis of sexual orientation in making determinations about access. Part 3 of the Order, titled Access Eligibility Standards, states in pertinent part: "Sec. 3.1 Standards. . . (c) The United States Government does not discriminate on the basis of race, color, religion, sex, national origin, disability or sexual orientation in granting access to classified information. (d) In determining eligibility for access under this order, agencies may investigate and consider any matter that relates to the determination of whether access is clearly consistent with the interests of national security. No inference concerning the standards in this section may be raised solely on the basis of the sexual orientation of the employee." The order also provides new procedures for appealing denials of security clearances, and imposes strict new financial disclosure requirements on those holding clearances, responding to the infamous Aldrich Ames case. A.S.L. Illinois Appellate Court Says Same-Sex Couples May Adopt Children Jointly Taking a step in the right direction, the Appellate Court of Illinois, First Department, opened the door for same-sex couples to jointly adopt children. In re Petitioner of K.M. and D.M., 1995 WL 421917 (Ill.App., July 18). Justice Gino L. Divito wrote the opinion of the court finding that the Cook County Circuit Court erred by dismissing two separate but similar adoption proceedings for lack of standing. In the first case, an unmarried lesbian couple, K.M. and D.M., filed a joint petition to adopt the three- year-old natural daughter of K.M.. K.M. had been artificially inseminated and the natural father was unknown. In the second case, K.L. and M.M., another unmarried lesbian couple, filed a joint petition to adopt K.L.'s two children. The three-year-old son was legally adopted by K.L. in 1992 and the younger child was K.L.'s natural son by artificial insemination. Again, the natural father of the younger child was unknown. The same guardian was appointed in both cases. On July 26, 1994, the guardian filed motions to dismiss in both cases arguing that the couples lacked standing to jointly adopt the children. The circuit court granted the motion. On appeal the cases were not consolidated but were set for briefing and argument at the same time by the Appellate Court. The issue on appeal was one of statutory interpretation. Under express language of the Illinois Adoption Act, the act must be "liberally construed." 750 ILCS 50/0.01. Section 2(a) of the act, the subject of this appeal, sets forth who may adopt a child in Illinois. "A reputable person of legal age and of either sex, provided that if such person is married, his or her spouse shall be a party to the adoption proceeding, including a husband or wife desiring to adopt a child of the other spouse, in all of which cases the adoption shall be by both spouses Jointly." The circuit court adopted what the guardian stated was a more conservative construction of the statute by holding the term "person" meant married couples therefore denying standing to an unmarried lesbian couple. Justice Divito found that this interpretation contradicted the liberal intent of the Act. All parties agreed that sexual orientation was not an issue in these cases; the issue was whether unmarried couples could jointly adopt. In so finding, the court held that under the terms of the act, unmarried couples, whether a same-sex or heterosexual couple, are not barred from filing a joint petition for what is commonly called a second parent adoption. Both cases were remanded for a determination of whether the adoptions were in the best interests of the children. Patricia Logue, managing attorney for the Midwest Regional Office of Lambda Legal Defense and Education Fund, said "[t]his is a profound victory for the many children in Illinois who have two unmarried parents." T.V.L. * * * After a brief hearing on August 24, Cook County Associate Judge Marjan Staniec issued a written order approving the adoptions, according to a press release issued by Lambda Legal Defense Fund. One of the couples was represented by Lambda, the other by the ACLU of Illinois. A.S.L. Federal Judge Publishes Opinion Upholding Military Policy; Other Military Developments After an unusual delay of several weeks, U.S. District Judge Claude Hilton (E.D.Va.) released his written opinion in Thomasson v. Perry for publication. 1995 WL 470185. Hilton rejected Lt. Paul G. Thomasson's contention that his discharge for the Navy solely for saying he is gay is a violation of his constitutional rights. Thomasson, who the Navy conceded had attained an "enviable" record, sent a letter to four admirals for whom he had worked at the Bureau of Naval Personnel, revealing his homosexuality, the day after the Navy adopted its interpretive regulations under 10 U.S.C. sec. 654, the statutory codification of the "don't ask, don't tell" policy. He was promptly processed for an honorable discharge, and brought suit seeking a declaration that the policy is unconstitutional. Hilton stayed Thomasson's discharge pending a ruling on the merits. Hilton's June 8 decision seems to wilfully misunderstand the legal arguments made by Thomasson. On the claim that a discharge solely premised on a statement of sexual orientation violates the first amendment, Hilton ruled that Thomasson was not being discharged for saying that he is gay, but rather for revealing that he is a person with a propensity for engaging in homosexual conduct forbidden by Naval regulations. Hilton contended that Thomasson "misses the fundamental point that the policy uses speech as evidence, via rebuttable presumption, that the service member's declaration of his homosexuality will lead to homosexual conduct." At the hearing on his discharge, Thomasson did not submit any evidence to rebut the presumption. Referring to the Supreme Court's decision in Wisconsin v. Mitchell, 113 S. Ct. 2194 (1992), which upheld against first amendment attack a law that authorized enhanced punishment for bias-motivated crime, Hilton drew an analogy to the use of racist comments by a criminal perpetrator as evidence of biased motivation for the crime. Hilton rejected Thomasson's attempt to distinguish the new military policy from the previous policy. Under the previous policy, the military actively inquired into the sexual orientation of recruits because all gays were barred from serving, while under the new policy the military does not ask recruits about their orientation and gays may serve so long as they don't engage in conduct or speech that would identify them as gay. From this, Thomasson argued that since the new policy allows gays to serve, "there is nothing impermissible about being gay and that [because] homosexuals may continue to serve, the acknowledgement that one is gay has no conceivable evidentiary value." Rejecting this argument, Hilton accepted the government's contention that it is rational to interpret an open declaration of homosexuality as indicative that someone has the "propensity" to engage in homosexual conduct in the future. Turning to Thomasson's equal protection argument (that the new policy puts the burden of rebutting the presumption that one will engage in unlawful sexual conduct in the military on gays but not on heterosexuals), Hilton determined that the differential treatment accorded gays and non-gays merited only rationality review, and that Congress, which had received testimony from military leaders that exclusion of openly gay people was necessary to preserve unit morale and cohesion, had acted rationally in adopting the policy. Hilton observed that the issue of sexual tension on military bases was not solely a gay issue; the military separately houses men and women to avoid introducing sexual tension and temptation into military living units. Why, asked Hilton, should the military be required to tolerate such tension by housing openly gay members with non-gay members of the same sex? In reaching his decision, Hilton emphasized the substantial deference to military expertise that the Supreme Court has articulated in past cases challenging various military policies. At bottom, the equal protection claim also came down to the military judgment that statements of homosexual identity are predictive of homosexual conduct, which Hilton found to be a rational judgment. "While it is true that some service members may view themselves as homosexuals but nonetheless remain celibate, it would not be rational to develop military personnel policies on the basis that all homosexuals will remain celibate or that they will not be sexually attracted to others. It would be similarly irrational for the military to ignore the obvious implications of placing people who are sexually attracted to each other in the same living quarters. As such, the policy is not based on irrational prejudices but on concrete, articulated concerns about privacy and sexual tension and the resulting impact on unit cohesion. The military is entitled to deference for its professional determination that these legitimate concerns would adversely impact our nation's military readiness." As to the rationality of presuming that an openly gay person will engage in homosexual conduct, Hilton relied on the recent D.C. Circuit decision in Steffan v. Perry, where the en banc court wrote that service members "who identify themselves as homosexual in a military setting -- where a declaration of homosexuality is a ground for discharge -- convey the impression that they are not in doubt as to the direction of their sexual drive" (citing 51 F.3d at 691). Hilton found this particularly significant, in light of Thomasson's refusal at his hearing "to state whether or not he intended to engage in homosexual conduct." Hilton also rejected the argument that the new policy offends due process by being overbroad. Thomasson argued that the policy will result in discharges of gay service members who might never engage in homosexual conduct. Hilton's rejoinder was that the policy leaves room for somebody to stay in the military if they can rebut the presumption that they will engage in homosexual conduct. Unfortunately for Thomasson's argument, by the time of this decision a handful of service members had managed to persuade discharge boards that the presumption was unfounded in their cases and won recommendations that they be retained in the service, and Hilton seized on these cases to assert that it was not impossible to rebut the presumption. (Of course, these cases may well be military examples of the "jury nullification" phenomenon widely observed in the criminal justice system when jurors disagree with the application of the law as instructed by the judge in their case.) Hilton also rejected the argument that the policy violates the Administrative Procedure Act, observing that Thomasson had a full hearing at which he could have attempted to rebut the presumption as to him, but refrained from doing so. * * * The Association of American Law Schools has sent a memorandum (No. 95-29) to all deans of member law schools, enclosing a copy of the regulations recently published by the Defense Department concerning cutoff of defense appropriations funds to institutions of higher education that bar military recruiters. See 60 Fed. Reg. 28050 (May 30, 1995). The memo takes the position that because the proposed regulations do not require a cut-off of funds to other units of a university if the law school bars military recruiters, "enforcement of AALS Executive Committee Regulation 6.19 [which requires exclusion of employers who discriminate, inter alia, on the basis of sexual orientation] is not affected by the regulations." We have received reports that the issue of access for military recruiters is being debated at several law schools as the fall semester begins. U.S. District Judge Thomas Zilly issued a preliminary injunction on August 8 against the discharge of Navy Lt. Richard Watson, finding there was a strong probability that Zilly would find the "don't ask, don't tell" policy unconstitutional. Watson, who had consistently strong service evaluations, was apparently moved by the controversy over military service to send a note to his commanding officer shortly after Congress enacted the new policy, stating: "I have a homosexual orientation. I do not intend to rebut the presumption" that he desires to engage in homosexual conduct or has engaged in such conduct. The Navy promptly scheduled him for discharge and he filed suit in U.S. District Court in Seattle seeking injunctive relief. Zilly had previously ordered the reinstatement of Army Col. Margarethe Cammermeyer, who was discharged under the previous policy. Seattle Post- Intelligencer, August 9. California Attorney General Dan Lungren was embarrassed by a harshly homophobic brief filed by one of his deputies in a pending case defending the California National Guard, which is being sued by a discharged gay member. Andrew Loomis, author of the brief, wrote: "Undisputably [sic] homosexual acts are despised by a great proportion of the voters. And those voters have acted through their President and their Congress to rid themselves of those acts. . . In truth, there is no further justification for most chapters of the criminal law. And therefore, it is still OK to be `prejudiced' or `biased' against criminals, such as molesters and pederasts, and to fire them for it." In earlier papers filed with the court, Loomis referred to plaintiff Andrew Holmes as follows: "Holmes is irked that the Constitution does not recognize anything special about his own favorite nasty habits." Responding to the uproar stemming from press reports about these remarks, Lungren had Loomis removed from the case, but did not have him discharged from the office. Evidently, Lungren does not consider this incompetence or unacceptable bigotry, but merely bad public relations. Lungren did send a letter of apology to the federal judge before whom the case is pending. A.S.L. Tennessee Appeals Court Upholds Custody for Lesbian Mom In Matter of Michael Lee Parsons, 1995 WL 442587 (July 27), the Court of Appeals of Tennessee upheld an award of custody to a lesbian mother. Michael Lee had been born to Jacqueline and her boyfriend, Michael Wayne Parsons, in 1983. After her son's birth, Jacqueline married another man, Gary Carson, with whom she has two children. When she separated from Gary, Jacqueline suffered emotional and financial difficulties. She, therefore, agreed to grant custody of Michael Lee to his father. In 1991, however, after her divorce was final, Jacqueline filed a petition to obtain custody based on changed circumstances. The juvenile court awarded custody to Jacqueline, finding that <160>underlying Mr. Parsons' behavior is his hostility at Ms. Carson's admission that she is a lesbian." The court found that Jacqueline was the more fit parent, and that her "roommate," Marilyn Misner, was the "more mature of the adults in Michael's life." Nevertheless, in its custody order, the court mandated that, in the future, "there should be no inappropriate sexual expression of sexual conduct between Ms. Carson and her roommate." Mr. Parsons appealed the trial court's decision, arguing that: (1) no material change of circumstances had occurred to justify the change in custody; (2) the evidence did not support the lower court's decision; and (3) he should have been allowed to explore Jacqueline's relationship with Marilyn, and its possible effects on Michael. Recognizing that it should "not sit as moral arbiters making judgments on what is acceptable social behavior," the Court of Appeals nonetheless emphasized that its "decision should not be interpreted as blanket approval or disapproval of [Jacqueline's] lifestyle." Relying upon the fact that Jacqueline and Marilyn "have never engaged in any inappropriate sexual conduct or contact," and that the lower's court's "decree prohibits future inappropriate expression of sexual conduct," the Court of Appeals found that the best interests of the child would be served by granting custody to Jacqueline, and therefore, affirmed the trial court's order. Jacqueline is represented by Nashville attorney Abby Rubenfeld, former co-chair of the National Lesbian and Gay Law Association and the new chair of the ABA's Section of Individual Rights and Responsibilities. C.B.R. Iowa Federal Court Dismisses Same-Sex Sexual Harassment Claim by Straight Male Employee; Alabama Federal Court Jury Rules for Plaintiff in Same-Sex Harassment Case; Federal Court in D.C. Refuses to Dismiss Same-Sex Harassment Claim Straight male employees who suffer workplace harassment by other male employees or supervisors because they are perceived to be gay are not protected by Title VII or analogous state laws, ruled Magistrate Bremer in Quick v. Donaldson Company, Inc., 1995 WL 476179 (S.D. Iowa, Aug. 4). The court dismissed claims under Title VII, the Iowa Civil Rights Act, and other pendent state law claims. Phil Quick was hired by Donaldson Co. in January 1991. He alleged various incidents in which he was subjected to physical abuse or verbal harassment that appeared to be motivated by the mistaken belief of others in the workplace that he was gay. Observing that federal courts were seriously split over whether same-sex sexual harassment is actionable as sex discrimination, this court sided with those courts that have dismissed such cases. "In enacting Title VII, Congress intended to ensure that employers treated disadvantaged groups and non-disadvantaged groups alike. Historically, disadvantaged and vulnerable groups were comprised primarily of women and minorities who, until recently, were prevented from entering or advancing in the job market. However, to view all women as victims and all men as discriminators is a dangerous stereotype. Men, by the very fact that they are not women, should not be automatically excluded from being considered disadvantaged or vulnerable." However, the court found that sexual harassment claims by men should only be actionable under narrowly defined circumstances, such as where it can be shown that "the environment is anti-male" or the plaintiff is a man working in a "predominantly female environment." "As a male in a male-dominated environment, Quick cannot successfully complain that he was discriminated against based upon his gender." Furthermore, the court found that the harassment aimed at Quick was not "of a genuine sexual nature" along the lines of requests for sexual favors. Rather, it seemed to the court that Quick was just disliked by his co-workers. Bremer asserted that "sexual harassment," as such, is not outlawed by Title VII; rather, what is outlawed is differential treatment based on gender, which Bremer maintained was not present in this case. As to the argument that this was really anti-gay discrimination, the court found some support in the record for this, but noted that federal courts have uniformly held that sexual orientation discrimination is not actionable under Title VII, and that neither state nor local law forbids such discrimination in the Iowa city where the employment was located. Disposing of various pendent state law claims, the court dismissed tort claims without prejudice so that Quick could reassert them in a state court action, if timely. Ironically, just a few days later, a federal jury in Alabama found in favor of a straight male employee who claimed he was sexually harassed by a gay supervisor and then discharged when he complained. Prescott v. Independent Life and Casualty Co., No. 94- A-383-N (N.D. Ala., Aug. 9), reported in 1995 BNA Daily Lab. Rep. No. 158 (Aug. 16). In this case, however, the factual allegations described sexual advances by the supervisor, as well as allegations that the supervisor told another employee that he was in love with the plaintiff and had a plan to get the plaintiff into a relationship with him. After the jury found the employer strictly liable for the supervisor's actions, the company settled the case for an undisclosed amount. The plaintiff's attorney claimed that this was the first same-sex harassment case under Title VII to have gone to a jury verdict. The company claimed in defense that the plaintiff never complained to management about harassment by the supervisor, and that he was discharged after co-workers complained about his discussing the supervisor's sexual orientation and his ability to supervise, according to the company's attorney, interviewed by BNA. On July 5, the U.S. District Court in the District of Columbia refused to dismiss a claim of sexual harassment violative of Title VII asserted by a male employee against male supervisors. Raney v. District of Columbia, 1995 WL 447480. Judge Attridge rejected the contention that a male plaintiff cannot assert a claim of sexual harassment based on sexual advances towards him by male supervisors, and was sharply critical of the 5th Circuit's opinion in Garcia v. Elf Atochem N. Am., 28 F.3d 446 (1994), which has been relief on by several district courts around the country in dismissing such claims. Attridge noted that the Garcia opinion was premised on the reasoning of the district court in Goluszek v. Smith, 697 F.Supp. 1452 (N.D.Ill. 1988), where the court asserted that Congress's intent in including "sex" in Title VII was to protect women from discrimination at the hands of men, so a man could not bring suit claiming he was discriminated against or harassed by a male supervisor. Attridge noted that the Goluszek court "did not support its view of Congress' intent with any citations to the legislative record," instead relying on a law journal note that, "according to this Court's reading, does not grapple with legislative history interpretations at all." Rather, Attridge preferred to rely on Meritor, the Supreme Court's leading sexual harassment precedent, where the Court "clearly indicated that men could be victims of harassment under Title VII." A.S.L. Federal District Court Hesitates to Intervene in Wisconsin Lesbian Mother Visitation Dispute In June, the Wisconsin Supreme Court ruled in In re Custody of H.S.H-K.: Holtzman v. Knott, 533 N.W.2d 419, that a lesbian co- parent could seek visitation with the biological child of her former partner after their relationship terminated. The dissenting judges argued that the court's ruling violated the federal constitutional rights of the biological mother, Elsbeth Knott. On August 8, Knott filed suit in federal district court in Madison, seeking an injunction to prevent Dane County Judge George Northrup, to whom the case was remanded by the state supreme court, from ruling on Sandra Holtzman's petition seeking visitation. Northrup had previously ruled that Wisconsin precedents barred him from granting Holtzman's petition, but this was the decision that the state supreme court reversed. In her federal complaint, Knott alleged that Holtzman's attempts to gain visitation are "intrusions" by a non-family member, and are denying Knott "the rights generally given an intact marital family to be free from government intrusion." Knott and Holtzman's son was conceived through alternative insemination during their partnership. At a hearing on August 23, U.S. District Judge John Shabaz indicated that he found most persuasive the arguments by Holtzman's lawyer, Judith Sperling Newton, and assistant attorney general James McDermott, that the court lacked jurisdiction to deal with Knott's complaint, and that the procedurally proper route would be for Knott to file a certiorari petition with the U.S. Supreme Court. However, Shabaz indicated he would do further research and study on the matter and issue an opinion within a week. Wisconsin State Journal, August 9 & August 24. A.S.L. Missouri Court Awards Joint Custody to Postoperative Transsexual and Ex-Wife St. Charles, Missouri, County Circuit Judge William T. Lohmar, Jr., awarded joint custody of two young boys to their post-operative transsexual father and her ex-wife, according to an article in the St. Louis Post Dispatch on August 6. "The boys haven't seen their father for three years and don't know that he is now a woman," reported the newspaper. A battle of experts took place during the divorce/custody proceedings, with psychiatrists and counsellors taking conflicting positions on whether the boys would be hurt by exposure to their father in her current status, or -- as the father's experts claimed -- whether they would be hurt by being cut off from their father. On June 1, after deliberating for five months, Judge Lohmar entered a divorce decree requiring the father to make child support payments and allowing her the standard visitation for a parent who lives out-of-state. Lohmar found that the father, now called Sharon, was "loving and caring" and had a significant bond with the children, despite their long separation while she was going through her sex reassignment process and then the divorce. The mother has not yet allowed contact, and Lohmar has amended the order on further consideration to put off contact until next summer and to restrict the conditions of visitation to exclude the children from contact with other transsexuals. There is no indication in the newspaper article about whether the mother will appeal the decision, but she is reportedly very upset about the ruling. "The memory of their father is precious to me," she said, "but I don't believe I have the responsibility to force them to love a stranger named Sharon." A.S.L. Federal Court Dismisses COBRA Action Brought by Dismissed Gay Employee; Punts on Pendent Sexual Orientation Discrimination Claim District Judge Carter (S.D.N.Y.) granted summary judgment to defendant Bloom FCA!, Inc. against Richard A. Fleury on Fleury's claim that Bloom violated Fleury's federal statutory rights to continued insurance coverage after his termination, and dismissed a pendent claim based on New York City's gay rights ordinance. Fleury alleged that he was discharged due to his sexual orientation, noting that he had received good employee evaluations over the years and was suddenly terminated after he told a fellow employee that he "was not straight" in response to her inquiry. Fleury alleged that the co-employee revealed this information to the president and vice-president of the public relations firm for which he worked, and he was discharged shortly thereafter. After his termination, Bloom sent Fleury a letter describing his rights to continued insurance coverage under COBRA, a federal statute, and explaining that he would have to pay premiums and would not be billed separately for the premiums. Fleury sent a check to initiate coverage, accompanied by a letter asking to discuss establishing a payment schedule. When Fleury received no reply to this letter, he sent no further checks. When the period covered by his first check ended, Bloom allowed his insurance to lapse. In his federal complaint, Fleury alleged violations of COBRA and ERISA relating to the insurance lapse, and claimed a violation of the NY City Code for sexual orientation discrimination. Judge Carter found that Bloom had complied with COBRA's notice requirements, since the initial notice sent to Fleury adequately described how the payments should be made and clearly stated that Fleury would not be billed for payments. Finding no COBRA or ERISA violations, Carter granted Bloom's summary judgment motion on those claims. As to the City Code claims, Bloom argued that Carter should find the City Code provision invalid, on the assertion that the city lacked legislative authority to establish a cause of action cognizable in state court. Carter decided not to get into this controversy, noting that when federal claims providing the basis for the action were dismissed on summary judgment, district courts should refuse to exercise supplemental jurisdiction on state or local law claims. Deciding the sexual orientation claim, said Carter, "would require deciding an important question of New York law best left to the courts of that state." Carter also rejected Bloom's demand for Rule 11 sanctions against Fleury and his attorney on various grounds. A.S.L. Federal Court Dismisses Discrimination Claim While Condemning Homophobia Granting a motion for summary judgment against the plaintiff in Sarff v. Continental Express, 1995 WL 480562 (S.D.Texas, Aug. 10), the federal district court found that the plaintiff's behavior merited discharge and that the Title VII remedy sought by the male plaintiff was not available. The case involved a claim by Mark David Sarff, a customer service agent for Continental, that he was fired in retaliation for complaining about harassment against him in the workplace, and that he was discriminated against because he is a man. In his complaint to the EEOC, he alleged that "the actions directed toward me by Matt [a co-worker] were sexual harassment because he simply presumed that I am gay and proceeded to act upon a stereotype to humiliate me." However, Judge Samuel B. Kent found that there was a long, well-documented record of customer complaints about Sarff's behavior, and that incidents of sexual horseplay between Sarff and a female employee seem to have precipitated the discharge after a lengthy progressive discipline process in which Sarff had received negative evaluations and warnings. On the other hand, Kent seemed to come to this conclusion reluctantly, to judge by the following comments in the opinion: ". . . the facts present an employment situation that deeply troubles this Court. Although Plaintiff's complaint is framed exclusively in terms of discrimination against him because he is male, it is indisputable that running through the pleadings, and certainly throughout the treatment Sarff encountered in his work environment in the alleged instances of sexual harassment, is a strong undercurrent of homophobia. The Court is, of course, fully aware that neither Title VII nor Texas state law afford relief for employment discrimination based on sexual orientation. The scope of the law, however, is not coterminous with the scope of ethical or humanitarian duties. . . The law, that is, does not reach those private decisions of duty and good conscience that are properly left to individuals to work out as their own private lights dictate." "Similarly, an employer can clearly fire an employee for being gay, and such an employee has no statutory protection in the vast majority of states whatsoever from such action or from being harassed by a member of his or her own sex. Nevertheless, this Court cannot pass over this legal fact in this case without commenting that the absence of a legal duty on an employer's part is not coterminous with the scope of a duty of good faith and fair dealing. This Court deeply believes that discrimination against all Americans, despite their gender, race, religion, or sexual orientation, is profoundly wrong and that it violates the fundamental and essential right of individuals to engage in the full rights and privileges of citizenship. In addition, it makes little economic sense for employers to discriminate against 15-25 million gay and lesbian people in this country, many of whom hold positions at the highest levels of professional, scientific, academic and political enterprises. In this case, however, the strong suggestion that Sarff encountered a work environment hostile to his sexual orientation is greatly outweighed by the reality that his own highly inappropriate -- and oft-repeated -- behavior was the determining factor in his dismissal by Continental Express." After analyzing the factual claims, Kent reiterated that Title VII does not forbid sexual orientation decision, and commented, "Whether this Court agrees with the ethical position of this rule or not, it is clearly bound by the authority surrounding the law of Title VII and must act accordingly. Thus, Sarff did not complain of any activity protected by Title VII, for even if he proved that all the events he alleges happened did, in fact, occur, Title VII would still provide no protection for him." Judge Kent was appointed by President George Bush. A.S.L. 10th Circuit Gives Transsexual Prisoner Trial on Estrogen Treatment Claim Under 8th Amendment A unanimous panel of the U.S. Court of Appeals for the 10th Circuit held August 18 that the district court erred in granting summary judgment to prison officials in a case presenting the question whether a transsexual inmate was entitled to receive hormone treatments. Brown v. Zavaras, 1995 WL 492830. Josephine Brown, proceeding pro se, alleged that his (Brown, a preoperative male transsexual, used the masculine pronoun in court papers, so the court referred to Brown as "he" throughout the opinion) rights under the 8th and 14th (equal protection) amendments were violated when corrections officials denied him medical care for his "gender dysphoria." The district judge, affirming a magistrate, granted summary judgment to prison officials without allowing Brown opportunity for discovery by converting the defendants' motion to dismiss to a motion for summary judgment without notice to Brown. First the appeals court held that the district court's failure to notice Brown about the conversion of the motion rendered it invalid. However, the court proceeded to treat the case as presenting a motion to dismiss under Fed. Rule Civ. Pro. 12(b)(6). Analyzing the 8th amendment "cruel and unusual punishment" claim, the court found that Brown's allegation that he had been offered no treatment at all for his gender dysphoria (as transsexualism is medically labelled) created a factual issue for trial under the Supreme Court's articulated standard for prisoner medical claims. The court noted that the 10th Circuit was one of the first to consider whether imprisoned transsexuals have a constitutional right to receive estrogen. Most federal courts have ruled that preoperative transsexuals do not have such a right. However, this was not dispositive because Brown did not merely allege denial of estrogen, but rather that he was denied all treatment whatsoever. Turning to the equal protection claim, the court noted that there were several federal cases holding that transsexuals are not a "protected class" for equal protection purposes. "Recent research concluding that sexual identity may be biological suggests reevaluating Holloway [v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir. 1977)]," the leading precedent on this point, suggested the court. However, the court found Brown's allegations "too conclusory to allow proper analysis of this legal question" without explaining specifically what was lacking in Brown's allegations. Thus, proceeding under the highly deferential rational basis standard, the court affirmed dismissal of the equal protection claim, albeit admitting that "it is a close question as to whether Mr. Brown's complaint raises an equal protection claim." The court's failure to set out in detail Brown's factual allegations makes this a frustrating opinion to read. A.S.L. Oregon Appeals Court Rules on Insurance Claims Stemming From Suicide of Gay Man In a dispute between the original and the successor beneficiaries under the life insurance policy of Forrest Holmes, a 26-year-old man who committed suicide, apparently in anguish over his homosexuality, the Oregon Court of Appeals reversed a judgment for Holmes' parents, the original beneficiaries. Holmes v. Morgan, 1995 WL 444152 (July 26). The parents claimed that the successor beneficiary, a nurse friend with whom Holmes lived after leaving his parents' home, entered into a suicide pact with Holmes, under which the nurse was to assist Holmes in committing suicide and Holmes was to change the policy's beneficiary from his parents to the nurse. The nurse claimed that she knew nothing about the policy until after Holmes' death, and that Holmes rented a room from her after his parents threw him out from the family home. The parents asserted claims for (1) a declaratory judgment that the change in beneficiary violated public policy as furthering suicide, and (2) interference with economic relations through undue influence. Holding that only inadmissible hearsay statements of Holmes supported the declaratory judgment claim, the court ordered judgment for the nurse on that claim. Since there was non-hearsay evidence supporting a finding of undue influence, though, in that Holmes and the nurse had had a confidential relationship, the court remanded that claim for retrial. Declaring inadmissible the mother's testimony regarding statements allegedly made to her by Holmes in describing the suicide pact, the court ruled that (1) the hearsay exception for statements of "existing state of mind ... such as intent [or] plan" would permit introduction of a statement that Holmes was going to commit suicide, but would not render admissible the further statement that he was doing so because the nurse would help him; (2) the alleged statements were not against Holmes' penal interest, since committing suicide was not a crime; (3) the statements were not against Holmes' pecuniary interest, since he was not to receive the policy benefits in any case; and (4) the statements were not admissible under the residual hearsay exception since, given the mother's status as a financially interested party, there were no circumstantial guarantees of trustworthiness. Also finding inadmissible testimony of Holmes' psychologist as to "chart notes" taken by the psychologist and describing his impressions regarding an apparent suicide pact, the court declared that (1) the notes were not admissible as "statements made for purposes of medical diagnosis or treatment," since the notes were the psychologist's conclusions, not Holmes' actual statements; and (2) the notes were not admissible as a "memorandum or record concerning a matter about which the witness once had knowledge," since the psychologist had never known of an actual suicide pact. R.M. Federal Court Orders Trial on High School's Removal of Gay Book >From Library Here's a well-intended effort that seems to have backfired. The Kansas City chapter of the Gay & Lesbian Alliance Against Defamation and Project 21 offered to donate copies of two gay books, Annie on My Mind, by Nancy Garden, and All American Boys, by Frank Mosca, to Kansas City area school libraries. In the Olathe, Kansas, school district, Schools Superintendent Ron Wimmer referred the proposed book donations to a committee of librarians for review. The librarians, noting that there were already several copies of Garden's award-winning books in the district's junior and senior high school libraries, recommended acceptance of the Garden book but rejection of the Mosca book. Meanwhile, media coverage about GLAAD's offer led to public controversy about gay books in the public school libraries, and ultimately Dr. Wimmer issued a press release announcing that the book donations were rejected. Subsequently, it was reported that all copies of Garden's book had been removed from the libraries. A student, Amanda Greb, wanted to circulate a flyer at Olathe High School about the controversy; she met with the principal, who made some revisions to the flier before allowing it to be distributed. Several students and parents and one teacher filed suit in federal district court, claiming that removal of the Garden books was unconstitutional and also alleging an unconstitutional policy of screening fliers to be distributed in the schools. The district moved for summary judgment, and the plaintiffs cross-moved. In a decision announced July 25 in Case v. Unified School District No. 233, 1995 WL 461742 (D. Kans.), District Judge G. Thomas Van Bebber rejected the district's motion as to three of the four counts in the complaint and ordered that a trial be held on the plaintiffs' claims, finding that they were not suitable for resolution on summary judgment. After disposing of standing issues in a way that left several viable plaintiffs in the case (including the teacher), Van Bebber ruled that both due process and first amendment claims could only be resolved after a factual determination of the motivation of Dr. Wimmer and school board members (who voted to endorse Wimmer's action). If the Garden books were removed because of substantive objections to their content, a serious first amendment problem would arise under the Supreme Court's plurality opinion in Board of Education v. Pico, 457 U.S. 853 (1982). The court cited a long string of lower federal court decisions in cases challenging book removals from school libraries, noting that plaintiffs won almost all the cases, and that the only acceptable grounds for removing books were "vulgarity" or "educational unsuitability." Van Bebber's opinion on the motion left little doubt that he suspected the school district would ultimately lose the case on the merits. The court did dismiss one count of the complaint, alleging a policy of censorship of student speech based on the principal's revisions to Greb's flier. Van Bebber found that one incident did not constitute a "policy" in the absence of a written policy, and noted that the principal had since retired, thus making the issue in this count moot for practical purposes. The bottom line for GLAAD and Project 21: No good deed goes unpunished, one supposes. A.S.L. Federal Court Rules on Claims by Gay Prisoner In Brown v. Stachelek, 1995 WL 435316 (E.D.Pa., July 20), an inmate of a Pennsylvania state prison, proceeding pro se, asserted several 42 U.S.C. Section 1983 claims against prison officials, partly on the ground that he was discriminated against because he was gay. While the District Court dismissed some of the claims, it permitted the plaintiff to amend others to describe his contentions with more particularity. None of the claims that survived, however, did so on the grounds that the plaintiff was targeted because he was gay. The claims of discrimination involved his disciplinary custody and his transfer to another prison. According to the defendants, they detained the plaintiff in disciplinary custody because he had been involved in two fights with one or two other prisoners. The plaintiff contended that he was detained because the officials involved did "not care for homosexuals" and wanted to take away his job as clerk to another official. The court held, on the authority of Sandin v. Conner, 63 U.S.L.W. 4601 (June 19, 1995), that the plaintiff had no liberty interest in the detention because it had not "impose[d] atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." Thus, the court did not address the plaintiff's contention that the detention was motivated by the homophobia of the prison officials. Brown also contended that he was transferred to another prison in part because he had a gay relationship with another inmate. In light of the Supreme Court's decision in Sandin, the court questioned the vitality of those circuit decisions holding that it was improper to transfer an inmate for retaliatory reasons. It nevertheless held that the plaintiff's claim was "outside even the more accommodating Circuit authorities," regardless of whether the detention was motivated by his gay relationship, "because the relevant point is that it was sexual at all. Sexual affiliations, whether homosexual or heterosexual, are inherently volatile alliances that have no place in prison and therefore prison officials may stop them, including by transfer, if necessary." The claims the court permitted the plaintiff to amend involved the officials' tampering with his mail from the court, denying him psychological counseling, stealing his property, and transferring him to another prison because he was going to reveal unethical practices by the prison administration. M.S.R. N.Y. Trial Judge Imposes Public Figure Standard in Lesbian Jogger Libel Action In a pair of decision published in the New York Law Journal on July 24, N.Y. Supreme Court Justice Charles E. Ramos held that a lesbian rape victim who was suing Daily News columnist Mike McAlary and the newspaper for defamation is a "public figure" (thus requiring the plaintiff to prove actual malice), that the publisher of the newspaper was not a proper defendant in the case, and that McAlary's confidential sources for the disputed article were not discoverable unless or until McAlary seeks to rely on them in presenting evidence and argument to the court. In his July 24 decision, Justice Ramos premised the designation of the plaintiff as a public figure on "her self-admitted social activism on behalf of women's anti-violence activities" and past employment by a "gay and lesbian organization." Newspaper publicity about this decision aroused considerable negative comment. On August 2, the Law Journal announced in a brief story that Justice Ramos had filed an amended version of his decision, still finding that the plaintiff was a public figure because she sought to "project herself into the public debate" and publicize her "victimization" as a lesbian target of rape, but removing the references to her "social activism" on women's and gay/lesbian issues. The essence of the complaint in this case is that McAlary libelled the plaintiff by publishing articles in which he accused her of lying about being raped in order to "enhance her status in the effort to focus attention on the problem of violence against women, gays and lesbians," according to Justice Ramos's summary of the complaint. McAlary claims to have based his assertions on statements by confidential informants relaying doubts from the police department about the plaintiff's account of what happened to her. Ramos's published opinion of July 24 is a rather high-flown dissertation on freedom of the press. The amended opinion has not yet been published. A.S.L. Mass. Appeals Court, Arizona Supreme Court, Vacate Convictions in Murders of Gay Men The Appeals Court of Massachusetts vacated the conviction of John D. McClendon, charged with murdering a gay man, on the ground that the trial court improperly allowed testimony about McClendon's temper and prior misconduct. Commonwealth v. McClendon, 1995 WL 492906 (Aug. 18). A new trial was ordered. The body of John Clifford, a gay man, was found covered with blood in his parked car on the morning of June 8, 1980. The coroner concluded that Clifford had been strangled, and was bloodied in the struggle. Blood tests showed Clifford's type A as well as some type B blood. It was later shown at trial that Clifford, an elderly gay man named Howard Simpson, and the defendant had left the bar of the Allen Hotel in Pittsfield together the previous night and driven away in Clifford's car. The court found that the evidence would support the jury finding that Clifford and Simpson were arguing about Clifford making sexual advances to Simpson. After the argument ended, Clifford parked on the side of Potter Mountain Road. McClendon left the car and started walking down the road. Then Clifford began to "molest" Simpson and "paw at" him. Simpson resisted at first, then gave in to Clifford, a bigger, stronger man, and then left the car. Clifford's body was found the next morning. The prosecution argued that Simpson was not physically able to have murdered Clifford by strangulation, so it must have been McClendon, whose blood type was found in the car. At trial, the prosecution established that McClendon, who had been drinking that night, had a bad temper, had been discharged from the Marines under questionable circumstances, and had previously attempted to strangle his stepmother while drunk. At the end of the trial, McClendon requested a jury instruction on "defense of another" based on the theory that he would be justified in killing Clifford to defend Simpson from "unwanted homosexual advances." The trial court denied the instruction, and was upheld by the appeals court, which found that the factual record would not support such a defense, since, among other things, McClendon had left the car before Clifford allegedly sexually attacked Simpson. However, the court did find merit to the argument that some of the character evidence offered against McClendon was prejudicial. The evidence about McClendon's Marine discharge was considered alright, but the court held that it was palpable error to allow introduction of evidence of prior bad acts or of the defendant's temper when drinking. "The evidence that the defendant drank, became violent and attempted to strangle someone was not a particularly distinguishing pattern of conduct that it was `so unusual and distinctive as to be like a signature,'" said the court, quoting the relevant Massachusetts standard for admission of such evidence. The Arizona Supreme Court reversed the convictions and death sentences of David Grannis and Daniel Webster for the murder of "Richard," a gay man, because of the introduction in evidence at trial of three color photographs "showing as a collage the collection of pornographic homosexual pictures found in Grannis' closet" by police officers incident to his arrest. State v. Grannis, 1995 WL 429483 (July 21). Grannis, who testified in his own defense and indicated in his testimony that he had past homosexual experiences and possessed homosexual pornography, and Webster were hitch-hiking and were picked up by Richard, who invited them to come home with him. According to Grannis's testimony, after an evening of drinking and talking, Richard suggested having sex to Grannis while Webster was out of the room. After some hesitation, Grannis said yes, but then changed his mind when Richard became very sexually aggressive as the two men came into Richard's bedroom. They began to fight, Webster got mixed up in it, and Grannis and Webster eventually fled in Richard's car. A neighbor called police about screams coming from Richard's home, and the police subsequently found Richard's body, which sustained "13 sharp force injuries and numerous blunt force injuries." When police eventually apprehended Grannis and Webster, they claimed surprise at hearing that Richard was dead. At trial, the defense objected to the state's introduction of graphic evidence of the pornography found in Grannis's closet, but the trial court admitted it. Wrote Justice Corcoran for the court, "We conclude that the homosexual pornographic photographs were marginally relevant, but the trial judge abused his discretion by admitting them because their probative value was substantially outweighed by the danger of unfair prejudice to both Grannis and Webster. . . The graphic images of males involved in homosexual acts would likely have repulsed many of the jurors. The jurors' verdict may well have been improperly influenced by their revulsion and not entirely based on a belief that the state proved the elements of the crime. . . Because we cannot say beyond a reasonable doubt that the jury would have convicted in the absence of this error, it is not harmless." The case was remanded for retrial. A.S.L. Federal Court in New York Disagrees With State Courts on Off-Duty Conduct Law In an unusual refusal to follow a state court interpretation of state law, U.S. District Judge Robert Patterson rejected a decision by the New York Appellate Division, 3rd Department, and held that N.Y. Labor Law section 201-d, the so-called "off duty" conduct law, protects an employee from being discharged on the basis of his or her off-duty lawful social activities and involvements. Pasch v. Katz Media Corporation, 1995 WL 469710 (S.D.N.Y., Aug. 8)(not officially published). Judy Pasch, the plaintiff, claims she was discharged because she continued an unmarried cohabiting relationship with Mark Braunstein, a Vice-President and General Sales Manager of the defendant corporation, after he had been discharged. The relationship of Ms. Pasch and Mr. Braunstein predated Braunstein's discharge by three years. Two days after Braunstein's discharge, the new president of the company told Pasch that her position was being eliminated in a reorganization and she would be demoted to an entry-level position. Charging that she had been constructively discharged, Pasch premised her lawsuit on the Civil Rights Act of 1964, Title VII, and the New York off-duty conduct law. Defendants moved to dismiss the state law claim, citing State v. Wal-Mart Stores, Inc., 621 N.Y.S.2d 158 (3rd Dept. 1995), in which the appellate division held that the off-duty conduct law did not apply to a dating relationship between employees. While noting that federal courts deciding pendent state law claims were normally bound to follow controlling state precedents, Patterson observed that federal courts could disagree with decisions by lower state courts if they were convinced that the highest court of the state would also disagree. Patterson was convinced in this case. Reviewing the legislative history of the off-duty conduct law, he found persuasive support for the dissenting opinion in the appellate division by Justice Yesawich, who asserted that "the narrow interpretation adopted by the majority is indefensible." It was clear to Patterson that the legislature intended to shield employees from employer sanctions for the broad range of legal off-duty activities, and not just those which might be embraced by a narrow definition of the concept of "recreation," the term used in the statute. Patterson held that the plaintiff alleged "sufficient facts to make out a prima facie case" under the state law. Ironically, the "Wal-Mart" case, which was initiated during the administration of Attorney General Robert Abrams and litigated by LeGaL member Jim Williams as an Assistant Attorney General, was not appealed to the Court of Appeals by order of the new Attorney General, Dennis Vacco, so the ideal vehicle for securing the views of New York's highest court on this question was sacrificed. * * * Of related interest, the U.S. District Court for the Northern District of Ohio ruled May 22 in Hughes v. North Olmsted, 66 Emp. Prac. Dec. (CCH) para. 43,576, that police officials may have violated 42 U.S.C. section 1983 by launching an investigation into the private sex life of police officer Ralph Hughes. The investigation responded to information that Hughes was engaged in an "open marriage" and was dating the mother of a reputed gang leader. The defendants tried to win summary judgment on a qualified immunity argument. District Judge Aldrich held that qualified immunity would not apply if the police were interfering with a well-established constitutional right. In this case, there is a growing body of precedent that off-duty lawful sexual activity by police officers is protected by the right of privacy. "[T]he defendants did not enjoy a qualified privilege to investigate the Hughes' marital understandings or alleged lifestyles, unless they related to Hughes' job performance. . .," wrote Aldrich. "Defendants have failed to explain or to offer any evidence how a `swinging' lifestyle was at all related to Ralph Hughes' job performance, or otherwise implicated the work environment." A.S.L. Minneapolis Commission Rejects Challenge to Pro-Gay Judge In an opinion issued on July 14 by Commission Chair Tim Cole, the Minneapolis Commission on Civil Rights rejected a challenge by the respondent in a discrimination proceeding to the designation of a pro-gay Commissioner to hear the case. Streater v. Omni Northstar Hotel, No. 92178-EM-9. Matthew Streater filed a charge with the Commission, alleging sexual orientation discrimination against him by the respondent hotel. The Chair of the Commission at the time of filing of the complaint designated Commissioner Robert Sykora as the presiding officer for the case. The hotel filed a motion to disqualify Sykora, asserting that he "has been an advocate for the rights of gays and lesbians" and that he had a conflict of interest that precluded his fairly hearing the case. The conflict allegation was based on the hotel's assertion that Sykora "is presently the Executive Director of the Lambda Justice Center (`LJC'), a Twin Cities gay and lesbian advocacy organization," and that statements previously made by Sykora "cast some doubt as to his impartiality." Rejecting the motion, Cole found that the hotel's attorney had made inaccurate assertions about Sykora, who served as Executive Director of LJC several years ago, but whose had terminated his employment with LJC before becoming a Commissioner; further, the hotel's attorney partially premised the motion on confusion between LJC and Lambda Legal Defense and Education Fund, which has participated in the case in an amicus capacity but has no organizational relationship to LJC. Cole also noted that city's civil rights ordinance specifically requires that Commission members "be persons known to favor the principles of equal opportunity, non-discrimination and objectives of this title"; thus, the statements relied on by the hotel in claiming Sykora was biased were the very sort of statements that provide his qualifications for appointment to the Commission. "Were we to follow the respondent's attorney's recommendation," wrote Cole, "ultimately no commissioners would be permitted to hear cases involving protected classes to which they belong or whose rights they may support." Cole also rejected the hotel's attempt to prevent the Commission from receiving Lambda Legal Defense Fund's amicus brief. "LLDEF is a national organization with expertise in this area and respondent has provided no valid reason to not accept this brief," opined Cole, rejecting the hotel's assertion that Lambda is an "outside group" attempting to influence the hearing process unfairly. Finally, Cole rejected the argument that Sykora should be disqualified because of his participation in pre-hearing attempts to resolve the case. A.S.L. Gay Man Claims Discrimination By Software Maker Dale Short is suing Adobe Systems of Mountain View, California, for sexual orientation discrimination in violation of state law. In an action filed in Santa Clara County Superior Court by Short's lawyer, Paul Wotman, the public relations specialist alleges that a co-worker made derogatory remarks about his sexual orientation and told others that Short was unfit to represent the company because he is gay. Short complained to his supervisor, but nothing was done. The derogatory co-worker subsequently was promoted to a supervisory position over Short after the first supervisor left the company. Short complained to the human resources department, but no action was taken, according to the complaint, and Short was subsequently discharged while on a leave of absence. San Francisco Chronicle, August 18. A.S.L. Federal Court in Massachusetts Refuses to Dismiss Claims Against College In an unpublished opinion that belated turned up on Westlaw, the U.S. District Court in Massachusetts ruled March 17 against a motion to dismiss charges that Mount Ida College violated Title VII, 42 U.S.C. section 1983(5) and the Massachusetts Law Against Discrimination when it refused to allow a lesbian faculty member to have her partner live with her in college housing. Plaintiffs Diane Tracy and Lori Pelletier claimed the college's actions constituted discrimination on the basis of sex and sexual orientation, and also that the college had retaliated against Tracy for her filing a complaint with the state commission on discrimination. District Judge Wolf rejected the college's argument that since sexual orientation discrimination has never been found actionable under the federal statutes the case should be dismissed, noting that the gender discrimination claims, while perhaps weak, were nonetheless sufficient to keep the case alive in federal court. Without commenting on the merits, Wolf also managed to intimate that the issue of sexual orientation discrimination under sec. 1983(5) (which involves conspiracies by private actors to deprive individuals of their federal civil rights) might yet be alive in the case. Tracy v. Mt. Ida College, 1995 WL 464909. A.S.L. Settlement in Same-Sex Dancing Controversy Lambda Legal Defense Fund reports successful settlement of a claim brought to the Cook County, Illinois, Commission on Human Rights on behalf of four gay men who were arrested for dancing together in a sports bar. The bar, which summoned police when the men refused to stop dancing, will pay a $2,000 fine to the county and post a notice pledging compliance with the county's human rights ordinance, which forbids sexual orientation discrimination by places of public accommodation. In January, 1995, an officer of the human rights commission had recommended that a fine, damages, and attorney fees be awarded against the bar. A.S.L. Domestic Partnership & Marriage Notes Hawaii Circuit Judge Kevin Chang, hearing the pending same-sex marriage case, has granted a continuance to the state, postponing the trial from September to July 15, 1996. Meanwhile, the Mormon Church in Hawaii is desperately seeking to intervene in the litigation, having applied to the state Supreme Court for authorization to do so. The Governor has appointed a new task force, per recent legislative authorization, to study the issue of same-sex marriage, domestic partnership, and recognition of same- sex families. The strategy being urged by lesbian and gay rights organizations to focus all efforts on preparing for an eventual ruling in Hawaii and not launch marriage challenges in other states seems to be breaking down, as a gay couple in Ithaca, N.Y., seems determined to pursue a marriage license, and a gay male couple in Anchorage, Alaska, filed suit early in August with the same objective. Brause and Dugan v. Alaska. The plaintiffs claim that denial of a license to them violates the state constitution. New York Attorney General Dennis Vacco, defending himself against recurring charges of homophobia, announced that he had extended domestic partnership benefit eligibility to non-unionized staff in the state Law Department. (Benefits eligibility had been negotiated with the staff union under Vacco's predecessor.) N.Y. Law Journal, July 26, p.1. Vacco has been under fire for rescinding an A.G. Executive Order banning sexual orientation discrimination in the Law Department, and more recently for discharging a former president of the Lesbian & Gay Law Association of Greater New York who was an Assistant A.G. The Alaska Supreme Court has denied a request by the University of Alaska for a stay of the trial court's decision in Tumeo v. University of Alaska, 1995 WL 238359 (Super.Ct., 4th Jud.Dist., Alaska, Jan. 11), pending a decision on appeal. As a result, the University has extended domestic partnership coverage as required by the trial court decision, effective September 1. The trial court held that failure to extend benefits to domestic partners violated the state's ban on marital status discrimination in employment. Anchorage Daily News, July 27. The National Danish Association for Gays and Lesbians reports that the three Scandinavian countries that recognize registered partnerships for same-sex couples have reached an agreement to recognize the partnerships across national boundaries. Thus, couples registered in Denmark, Norway or Sweden can move among the three countries and be recognized as family members based on the initial registration. This is the first such international recognition agreement of something approach same-sex marriage. We've learned of the following additional employers who extend benefits to domestic partners of employees: Emory University in Atlanta, Georgia; The Urban Institute (which reported that during its first enrollment period, 1.9% of its employees who were already in the organization's health care plan enrolled domestic partners; this constituted 1.1% of all employees of the Institute); the law firm of Patterson Belknap Webb & Tyler in New York City; the Law School Admissions Council (which has reportedly had benefits for several years but somehow as a small employer never showed up in previous lists or surveys). A lesbian couple is suing a Fresno, California, wedding chapel, charging breach of contract. The chapel had agreed to host a wedding ceremony for the couple, accepting a cash deposit and then a full payment in advance, but subsequently backed out and canceled the ceremony. Responding to a press inquiry, the chapel denied that any agreement was made and asserted that state law prohibits same-sex marriages. The matter is pending before Judge R.L. Putnam in Fresno Municipal Court. Fresno Bee, July 16. A.S.L. Legislative Notes The city council of Saugatuck, Michigan, a popular resort heavily patronized by lesbians and gay men, voted 7-0 to defeat a proposed ordinance banning sexual orientation discrimination. The issue came to the fore when an anti-gay incident in neighboring Douglas led that town to adopt such an ordinance by unanimous vote. But city council members in Saugatuck stated that such a measure was too controversial and might damage the resort. Indeed, when the matter started to stir local discussion, the city's Convention and Visitors Bureau voted to rescind a 1992 policy opposing sexual orientation discrimination. Perhaps Saugatuck is no longer interested in gay vacation dollars. Palm Beach, Florida, county commissioners voted 4-3 on July 18 against including sexual orientation in a proposed county discrimination ordinance, but then voted 5-2 to pass the proposed ordinance covering the other categories already contained in federal law. One member of the commission pointed out that federal funding for the local commission only covered the federal categories, and said, "If the federal government expands its scope, I have no problem following suit." A.S.L. Law & Society Notes Leaders in four major religious denominations grappled with lesbian/gay issues in recent weeks. The Rabbinical Commission on Human Sexuality, formed by the Conservative Jewish Movement's Rabbinical Assembly several years ago, is poised to release a report to the Assembly in September that will call for a rethinking of Conservative Judaism's position on homosexuality. The report describes homosexuality as "so much a matter of nature" and calls on synagogues to welcome gays as persons who are "longing to live openly and without stigma, in committed relationships with other Jews." However, the report does not call for an end on the movement's ban on ordination of openly gay rabbis and cantors. * * * Conservative bishops of the Episcopal Church have been pushing for a heresy trial for Bishop Walter C. Righter, charged with violating church doctrine by ordaining a "practicing homosexual." News reports suggest that the bishops may back away from the trial if they secure an agreement among all bishops to refrain from ordaining openly gay candidates until such time as the church changes its official position. * * * The Evangelical Lutheran Church in America continues to be torn by a proposed official statement on human sexuality. The first draft, submitted two years ago, was gay-positive and caused an uproar. The revised draft, that was set to be presented to a churchwide assembly this year, was gay negative ("genital sexual activity between persons of the same gender is not in accordance with God's will"), but also proved so controversial that members of the church's council decided to take it off the agenda. * * * The biennial legislative meeting of the National Youth Ministry Organization of the United Methodist Church voted to ask the church to drop its affirmation that homosexuality is "incompatible with Christian teaching," according to the Religion News Service (as published in the Albany Times Union, August 19). The meeting also voted to ask the church to drop its opposition to ordaining openly gay ministers or providing church funding for gay caucus groups within the church. The U.S. Department of Veterans Affairs and the U.S. Postal Service have issued policy statements banning sexual orientation discrimination in their agencies. VA Secretary Jesse Brown commented in his August 16 statement that "It is essential that we recognize that diversity of culture and life styles exists among employees, as it does in our veteran population." Postmaster General Marvin Runyon's statement of July 14 mentioned both "harassment" and "disparate treatment" on the basis of sexual orientation as neither permitted nor condoned in the Postal Service. Washington Blade, August 18. In a further expansion of the asylum rights of lesbian and gay aliens resident in the United States, Joseph E. Langlois, the Asylum Director for the Immigration and Nationality Service office in Newark, New Jersey, granted an asylum application from a gay Iranian who did not "come out" until after coming to the U.S., so thus had never been subject to persecution for homosexuality in Iran (where it is a capital offense). Langlois accepted the argument that the applicant, who was represented by Lambda Legal Defense, had a "well-founded fear of persecution" if he were to be deported back to Iran, now that he is openly gay. (Surprisingly, an asylum claimed filed by a gay Iranian in The Netherlands was rejected by Dutch officials, according to a recent report in The Washington Blade, July 28.) At its annual meeting in August, the American Bar Association's Silver Gavel Award for excellence in legal journalism was given to The Washington Blade for its series of four long feature articles by Lisa Keen about anti-gay ballot initiates and the lawsuits challenging them in Colorado and Cincinnati. Keen, a senior editor at the Blade, specializes in reporting on lesbian and gay legal issues. Yet another parade controversy: organizers of the 15th Annual India Day Parade in New York refused to allow a lesbian and gay group to participate. The organizers also barred Sakhi, a women's group that serves victims of domestic violence, from marching. The organizers took the position that because both of these groups include members from all South Asian countries, not just India, they were not qualified to participate. Several public officials boycotted the parade as a result of the exclusions. Newsday, August 14. A.S.L. International Notes The Magistrate Court in Tel Aviv, Israel, has awarded the equivalent of $50,000 in damages to an Israeli basketball player who claims to have been defamed by being publicly identified as gay in a newspaper headline. The player, Shimon Amsalem, is customarily taunted by rival players during games as "Amsalem the Faggot." Ha'ir, a weekly local newspaper in Tel Aviv with a reputation of being pro-gay, headlined a news report from last year's Gay Games in New York as follows: "Amsalem Is Not Alone." Amsalem, claiming he is not gay and that the headline defamed him, apparently persuaded the court that the newspaper's conduct was actionable, even though Israel decriminalized consensual sodomy many years ago and is in the forefront of legal protection and recognition for lesbians and gay men. The judge commented that because a large segment of society would still consider homosexuality to be stigmatized, Amsalem is entitled to damages. The newspaper has appealed the decision to the District Court. This report is based on details supplied by an Israeli lawyer. President Robert Mugabe of Zimbabwe, Africa, stirred international protests after directing that the Zimbabwe International Book Fair withdraw an exhibit stand that it had allocated to a small local gay-rights group. At his appearance opening the fair, Mugabe stated that gays were "perverts" who deserved no human rights. Seventy members of the U.S. Congress signed a letter to Mugabe, denouncing his position. Mugabe's response? "These senators should tell us now if they want to be pregnant. . . Let the gays be gays in the United States and Europe, but they shall be sad people here." Mugabe stated that homosexual conduct should be a criminal offense like theft. Diplomats were quoted as being puzzled by Mugabe's sudden anti-gay campaigning, commenting that gay rights had never been a significant issue in Zimbabwe. Washington Times report by Deutsche Presse Agentur, published August 20. The Finnish government is expected to enact a sexual orientation discrimination law on September 1, and will next address proposals to equalize the age of consent for gay and non-gay sex and to recognize same-sex relationships. Washington Blade, July 28. A.S.L. Professional Notes Abby Rubenfeld was elected chair of the American Bar Association's Section on Individual Rights and Responsibilities at the Association's annual meeting in Chicago. Rubenfeld is a former managing attorney of Lambda Legal Defense Fund and former co-chair of the National Lesbian & Gay Law Association (NLGLA). Rubenfeld is also a long-time member of LeGaL. At a national board meeting coinciding with the ABA meeting, NLGLA designated Mark Agrast of Washington, D.C., as NLGLA's member of the ABA's House of Delegates. NLGLA is an affiliated organization of the ABA. Long-time LeGaL member Christopher R. Lynn, recently appointed chair of the New York City Taxi and Limousine Commission, was featured in a "Talk of the Town" article in the July 17 issue of The New Yorker. Lynn is Mayor Rudolph Giuliani's first openly-gay appointee as head of a city agency, and previously served on the civilian police review board. The ACLU of Southern California announced the appointment of Taylor Flynn to fill the staff position vacated by Jon Davidson, who has become managing attorney at Lambda Legal Defense Fund's Los Angeles office. Flynn is a graduate of Columbia University Law School, and she is completing a fellowship at Stanford Law School. Her thesis on the gays in the military controversy is scheduled for publication in the Iowa Law Review. Flynn's litigation responsibilities at the ACLU will include both sexual orientation and AIDS law issues. Ed Flanagan, an attorney elected three years ago to be Vermont's State Auditor, came out as openly gay, thus becoming the only openly gay or lesbian person presently holding a statewide elective office. Flanagan told the Associated Press that he felt he had to come out now because of hostility toward gays expressed in Congress. "I think public bigotry creates a moral obligation to respond publicly," he said, adding that in light of Vermont's climate of tolerance and respect for privacy and human rights, he did not expect coming out to affect his political future in the state. At its annual meeting in Chicago in August, the American Bar Association House of Delegates approved a resolution by the Young Lawyers Division condemning bias in words or conduct by lawyers in the course of their professional activities on the basis of race, religion, national origin, disability, age, sexual orientation or socio-economic status. The resolution does not amend the ABA's Model Rules of Professional Conduct; however, some states have amended their model rules to make discriminatory conduct by lawyers an ethical violation, although the state laws vary with respect to the categories of discrimination covered and the degree to which they cover speech. We note with sadness the death of Daniel W. Meyer, 80, who was our first contributing writer. Long-time Law Notes readers may remember the series of articles about the criminal laws of the states affecting homosexual conduct that Dan wrote for Law Notes over a period of about six years during the mid-1980s. This was his major post-retirement project when he left active law practice. Dan was a charming person, and a precise, graceful writer whose important contribution to our knowledge about the law reform tasks that lie before us were a great benefit to those who avidly followed the series. Dan was a graduate of Columbia Law School and had a long and productive career as a labor lawyer representing unions and progressive causes in New York City. In retirement, he was an active member of Senior Action in a Gay Environment, a friend to many, and a loyal supporter of LeGaL in its various incarnations. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS Massachusetts High Court Approves Schools Condom Program A program allowing junior and senior high school students to obtain condoms in schools and receive literature on HIV and AIDS does not violate parents' constitutional rights to oversee the upbringing of their children, ruled the Supreme Judicial Court of Massachusetts on July 17. Writing for the court, Chief Justice Paul J. Liacos held in Curtis v. School Committee of Falmouth, 420 Mass. 749, 652 N.E.2d 580, that the voluntary program "does not supplant the parents' role as advisor in the moral and religious development of their children. In January 1992, the Falmouth school committee authorized the superintendent of schools to establish a "program of condom availability." Students in grades 7 - 12 could request condoms from school nurses, and students in the town's high school could purchase condoms from a vending machine. Before receiving condoms from the school nurse, students would be counseled and given literature on HIV and AIDS. The committee also directed the superintendent to stress abstinence as the only certain method of avoiding sexually transmitted diseases. A parents group brought suit, claiming that the lack of an opt-out provision violated their 14th amendment due process rights by depriving them of the power to control their children's education, and also violated their right to free exercise of religion under the 1st amendment. A lower court granted summary judgment to the school committee. In the Supreme Judicial Court, amicus briefs were filed by the ACLU, the state's Attorney General, and the American Jewish Congress. Upholding the summary judgment, Liacos noted, "The condom availability program is in all respects voluntary and in no way intrudes into the realm of constitutionally protected rights." Citing Epperson v. Arkansas, 393 U.S. 97 (1968), Liacos wrote, "Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values." He asserted that the condom distribution program is wholly unlike the compulsory requirements at issue in Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923), relied on by the plaintiffs. In this case, the plaintiffs "have failed to demonstrate how interests are burdened by the condom availability program to an extent which would constitute an unconstitutional interference by the State." The requirement that parents send their children to school "does not vest the condom program with the aura of `compulsion' necessary to make out a viable claim of deprivation of a fundamental constitutional right." "Students are not required to seek out and accept condoms, read the literature accompanying them, or participate in counseling regarding their use," Liacos declared. "In other words, the students are free to decline to participate in the program." And while the existence of the program "may offend the religious sensibilities of the plaintiffs, mere exposure at public schools to offensive programs does not amount to a violation of free exercise of religion." Under the doctrine set out in Epperson, he noted, "parents have no right to tailor public school programs to meet their individual religions or preferences." The plaintiffs pointed to a ruling by the New York Appellate Division, Alfonso v. Fernandez, 195 App. Div. 2d 46 (1993), in which the court found condom distribution to be a medical service requiring parental consent. They also raised Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992), to support their claim that parents have a constitutionally protected interest in a child's decision to bear children. In refuting these precedents, Liacos said that Alfonso turned on a question of state statutory construction, and the Supreme Judicial Court disagreed with its reasoning. The analogy to the requirement of parental notification for abortion in Casey is also inapt, he noted, because "the two situations are hardly comparable: abortion involves a medical procedure, while obtaining a condom does not." The court's decision was unanimous. M.N.S. Ohio Supreme Court Rules Out Liability in False-Positive HIV Test Case Affirming a grant of summary judgment in favor of the defendants, the Ohio Supreme Court ruled 5-2 on August 16 that a person who allegedly suffered severe emotional distress as a result of being incorrectly told that she was HIV+ may not bring a tort action against the doctor, hospital and laboratory involved. Heiner v. Moretuzzo, 73 Ohio St.3d 80, 652 N.E.2d 664. Plaintiff Patricia Heiner, seeking to conceive a child through alternative insemination, visited Dr. Richard Moretuzzo, a physician specializing in the area, who drew blood for various diagnostic tests, including HIV. The Red Cross lab informed Moretuzzo that the blood tested HIV+; he telephoned Heiner and told her about the positive test, indicating that a confirmatory test would be run. The Red Cross lab ran a second test on the same blood sample, which was again positive, and Moretuzzo relayed this information to Heiner and referred her to an infectious disease specialist, Dr. Gardner, who drew a new sample that tested negative, as did a follow-up sample. Heiner sued Moretuzzo, Akron General Hospital, and the Red Cross for negligent infliction of emotional distress. Writing for the court, Justice Douglas reviewed the evolution of judicial recognition of the tort of negligent infliction of emotional distress in Ohio, and concluded that when the courts abandoned the requirement for a showing of a contemporaneous physical injury in emotional distress cases, they nonetheless had retained a requirement that recovery be limited to severe cases of emotional distress arising out of exposure to actual danger. In this case, Douglas observed, Heiner's fear arose from a "nonexistent peril" because she was never exposed to HIV. After rejecting several variations of Heiner's basic argument in support of liability on these facts, Douglas commented: "As a final matter, we do not in any way dispute the legitimacy of appellant's claims that she suffered serious emotional injuries when diagnosed HIV positive. We have no doubt that the emotional injuries suffered by this appellant were real and debilitating. However, the facts of this case remind us that not every wrong is deserving of a legal remedy. Appellant was not HIV positive and never faced an actual physical peril as a result of appellees' alleged negligence. While we remain vigilant in our efforts to ensure an individual's `right to emotional tranquillity' (see Paugh, 6 Ohio St.3d at 74, 6 OBR at 116, 451 N.E.2d at 763), we decline to expand the law to permit recovery on the facts of this case." The decision brought a dissent from Justice Resnick, joined by Justice Pfeifer. While recognizing that it would be inappropriate to adopt strict liability for every instance of a false-positive HIV test being reported to a patient, Resnick contended that Heiner's factual allegations, if construed most favorably as required on a defense summary judgment motion, "alleged more than the mere fact that she received a report of a false positive HIV test. She alleged that the testing was negligently conducted, in part because the apparently faulty original sample was retested when a new sample should have been drawn immediately for the retest. She also alleged that the test results were negligently conveyed to her, in that Dr. Moretuzzo informed her of the devastating news over the telephone, rather than in a face-to-face meeting." Resnick concluded that Heiner had "raised a jury question regarding appellees' negligence," arguing that the lower courts should be reversed and Heiner given a chance to prove negligence at trial. A.S.L. Ohio Appeals Court Reverses Summary Judgment; Orders Trial for PWA Alleging Discrimination in Hospital In Fisk v. Rooney, 1995 WL 450258 (Ohio App. 4 Dist., July 24), Fisk, a person with AIDS, sued Rooney, a treating physician, and the Southern Ohio Medical Center (SOMC) for failure to treat him in SOMC's emergency room, and for defendant's alleged discriminatory practices under O.R.C. 4112.02(G) and 4112.99, which forbid denial of access to public accommodations on the basis of race, sex, color, religion, handicap, and for intentional infliction of emotional distress. Fisk came to the emergency room at SOMC complaining of abdominal pains and advised the emergency personnel that he was HIV+. He was advised that he probably had appendicitis. The emergency room physician told Fisk that Rooney, a surgeon, had refused to treat him, and that Fisk would be referred to another hospital in the area for treatment. Rooney alleged that he advised that he would treat Fisk if Fisk were refused treatment at the other hospital. Fisk was transferred to the other hospital at his own expense after an 8 or 9 hour delay; there it was determined that he would not need surgery. Fisk was treated and released after being held several days for observation. Suit was filed in February, 1994. Defendant's motion for summary judgment was granted by the trial court on July 25, 1994. The trial court based its decision in large part on an affidavit submitted by the administrator of the emergency room at SOMC, Dr. Wheeler, which purported to give expert testimony as to the appropriateness of the care given at SOMC's emergency room. However, the appellate court reversed the decision as to the first count of Fisk's complaint because Dr. Wheeler's affidavit failed to set out his expertise to evaluate claims for medical malpractice. This rendered the affidavit fatally deficient under Ohio Rule of Evidence 601(D). The appellate court also found other issues of material fact requiring trial. The appellate court then considered whether SOMC was a public accommodation under Ohio law. The court expressly noted that HIV infection was referenced as a disease included under the purview of O.R.C. 4112.01(16)(A), and that Ohio Adm. Code 4112-5-02 expressly included dispensaries, clinics and hospitals within the meaning of "public accommodation." The court found that Fisk had stated a case under O.R.C. 4112.02(G) which the Appellees had failed to rebut because the affidavit of their expert was defective on its face. Finally, the appellate court ruled that because the claim for failure to treat was not resolved, Fisk's claim for intentional infliction of emotional distress also was not resolved, and the trial court should not have granted summary judgment on that claim, either. S.K. HIV+ Rapist's Attempted Murder Conviction Upheld A Maryland appellate court ruled that a rapist who knows he is HIV+ may be convicted of attempted murder or assault with intent to murder. Smallwood v. State of Maryland, 1995 WL 411379 (Ct. Special App. of Md., July 13). While incarcerated in 1991, appellant Smallwood was diagnosed HIV+ and said that he would practice safe sex in order to avoid transmitting the virus. In 1993, Smallwood and an accomplice robbed a woman at gunpoint; according to an agreed statement of facts, Smallwood then sexually assaulted the woman, causing "slight penetration," without a condom. Convicted in a bench trial, Smallwood received concurrent sentences for armed robbery and attempted rape. Based on his HIV status, Smallwood also received concurrent sentences for attempted murder, assault with intent to murder, and reckless endangerment. Smallwood argued that the evidence could not support a conviction of attempted murder or assault with intent to commit murder. The appeals court, per Justice Bishop, noted that its role was to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." The court also observed that the crime of attempt "consists of a specific intent to commit a particular offense coupled with some overt act in furtherance of the intent that goes beyond mere preparation," and that specific intent to murder is established by "the specific intent to kill under circumstances that would not legally justify the killing or mitigate it to manslaughter;" the trier of fact may infer intent from the circumstances. The court cited cases from other jurisdictions upholding convictions where HIV+ defendants were convicted of attempted murder for spitting, Weeks v. State, 834 S.W.2d 559 (Tex.Ct.App. 1992); biting, State v. Smith, 621 A.2d 493 (N.J.Super.Ct.App.Div. 1993); and otherwise assaulting their victims, State v. Haines, 545 N.E.2d 834 (Ind.Ct.App. 1989). The court stated that Smallwood knew he could transmit a lethal virus by committing rape without a condom, and ruled that the trier of fact could infer that he had intended the foreseeable consequences of his actions. The court thus upheld the convictions, although it ruled sua sponte that the conviction for assault with intent to murder should be merged, for sentencing purposes, into the conviction for attempted murder. Dissenting, Justice Bloom argued that the evidence supported two contradictory inferences as to Smallwood's mental state: specific intent to murder, which would support the convictions, and the wanton, reckless indifference that would support a conviction for the lesser crime of reckless endangerment. Bloom added that the second presumption was more convincing because, if Smallwood had intended to kill, he would have used his gun rather than relying on the speculative chance of transmitting HIV. Noting that each of the majority's cited cases involved an unarmed defendant who was trying to kill using the only means available, Bloom concluded that the evidence supported a conviction for reckless endangerment rather than attempted murder. O.R.D. Illinois Appeals Court Affirms Negligence Finding Against Blood Bank in HIV Transfusion Case; Texas Appeals Court Reverses Second Summary Judgment in Transfusion Case The Appellate Court of Illinois, First District, affirmed the judgment of a district court (on a jury verdict) holding United Blood Services liable in negligence for HIV transmission that occurred during a February 1984 surgical procedure at Illinois Masonic Medical Center. Advincula v. United Blood Services, 1995 WL 497249. Rejecting the Blood Service's argument that it fulfilled its duty of care by following blood collection and screening procedures in common use at the time, a majority of the appellate court panel upheld the trial court's interpretation of Illinois's Blood Liability Act (745 ILCS 40/2), the trial court holding that a blood bank's duty is not conclusively established by reference to the "standards of the profession" at the time the transmission occurred. All three judges on the panel wrote opinions. Justice Scariano, author of the lead opinion, seized upon the language of the statute, which states that blood banks are held to warrant "that [they have] exercised due care and followed professional standards of care in providing the service according to the current state of the medical arts. . ." According to Scariano, the "plain meaning" of this statute "requires our holding that blood banks are mandated both to follow professional standards and to exercise due care, as indicated by the use of the conjunctive in the statute; if professional standards are not sufficient to constitute due care, blood banks are required to take measures beyond those followed by the profession in order to meet the standard of care." The trial record contained evidence from which a jury could conclude that at the time of the transfusion, a reasonable blood bank would have taken steps beyond what was then the standard practice in the profession to prevent transfusion with HIV-infected blood. Scariano acknowledged that some courts have limited blood banks' duty to the "prevailing custom in the profession," but noted several appellate decisions in other jurisdictions imposing the higher standard. Justice Divito concurred, but wrote separately to indicate his preference for remanding for jury reconsideration, because the court's explication of the statutory standard differed in some ways from how the jury in this case had been instructed. However, he decided to concur because he found Justice Scariano's analysis and "its application of caselaw precedent" to be "defensible." In dissent, Justice McCormick argued that the majority had misapplied "the plain language of the statute" and failed "to implement the apparent intent" of the act, resulting in "a standard of care which, I fear, few professionals can meet." McCormick charged that it is "sheer arrogance for the legal community, in hindsight, to question the professional judgment of those responding to the AIDS crisis in its early phases." McCormick retired from the court shortly after the argument was held in this case. The jury award in the case was $2.14 million in damages; the plaintiff was the surviving widow of the surgical patient, suing individually and as special administrator of his estate. * * * In Longoria v. United Blood Services, 1995 WL 457599 (Tex.App., Aug. 3), the Texas Court of Appeals has for the second time reversed a summary judgment in a long-running HIV transfusion suit for wrongful death brought by Juan and Maria Longoria stemming from the AIDS death of their daughter. (A previous summary judgment was reversed at 771 S.W.2d 663.) In this judgment, the trial court ruled that there were no remaining controverted facts regarding the issue of the defendant's duty of care with respect to a 1982 blood transfusion, having decided against allowing expert testimony from Dr. Melvin N. Kramer, who alleged in an affidavit that the Blood Service should have been testing donors in 1982 for CMV infection and other diseases typical of the AIDS "risk groups." Kramer is a doctor of public health, not a doctor of medicine, and the trial judge found he was not qualified as an expert for this purpose. The appeals court disagreed, finding that Kramer's educational credentials were sufficient and that his affidavits did create a factual conflict over the duty of care, to be resolved at trial. The appeals court also rejected a finding that the action was time- barred. The Longorias didn't file their action until after the death of their daughter, which occurred more than two years after she learned of her HIV status. However, she died before reaching age 18, and the court found that the statute of limitations in claims by a minor is tolled until the age of majority. A.S.L. Federal Court Finds No Discrimination in Firing HIV+ Employee for Sexual Harassment The U.S. District Court for the Eastern District of Michigan granted an employer's motion for summary judgment against an employee's claim that he was fired for being HIV+. In Brown v. Sprint, 1995 WL 428421 (July 14), plaintiff's employment with the defendant had been terminated following investigations into two accusations of sexual harassment against female employees. Plaintiff brought suit claiming that his termination was due to his being HIV+. In granting the motion, Judge Gadola found that plaintiff had failed to make out a prima facie case of disability discrimination, since he had presented no evidence that the defendant acted with requisite discriminatory intent. Plaintiff was unable to show that anyone at his workplace was aware of his HIV status and, indeed, had indicated in his deposition testimony that no one at the office was so aware. The court was unwilling to accept plaintiff's inference that the employer must have known of his medical condition given his deteriorating job performance and weight loss. Furthermore, plaintiff was unable to show that the defendant's reason for terminating plaintiff's employment, the sexual harassment claims, were merely pretextual. After an extensive investigation into the earlier sexual harassment claim, plaintiff's employer conducted a comparatively short investigation into the second sexual harassment claim. This, however, was insufficient to convince the court that the defendant was merely "cooking up an excuse to fire him because he was HIV positive" or that the second investigation was "flimsy, inadequate, or inferior" to the earlier one, as the Plaintiff had alleged. R.B. Federal Court Awards Compensatory and Punitive Damages Against Dentist Who Refused Treatment to HIV+ Patient Granting a motion for default judgment, District Judge Brotman (D.N.J.) ruled August 15 that Dr. Howard Bloom and Madison Dental Centre violated federal and state laws against disability discrimination by places of public accommodation by refusing treatment to plaintiff D.B. after learning that he was HIV+. D.B. v. Bloom, 1995 WL 490481. D.B. suffered a cracked tooth in an auto accident in August, 1992. He went to Madison Dental Centre for treatment in November, after seeing an advertisement in a free newspaper circulated to mass transit passengers in the Philadelphia and South New Jersey regions. D.B. had tested HIV+, but did not reveal this to Dr. Bloom for fear that he would be denied service. D.B. returned to Dr. Bloom to have the damaged tooth extracted on December 1. D.B. was sitting in the chair, prepped for the procedure, when an argument broke out between Bloom and D.B. about use of general anesthesia, in light of D.B.'s functional heart murmur. They decided to consult D.B.'s personal physician. When they phoned, D.B.'s physician was unavailable but the medical director came on line and asked D.B. for permission to inform Bloom that D.B. was HIV+. D.B. reluctantly acquiesced to this request and put Bloom on the phone. D.B. alleges that Bloom "went totally blank" and left the room for a few minutes, leaving D.B. sitting in the chair. Bloom returned and, in the presence of an assistant, told D.B. that he could no longer offer him service and would refer him to a "special clinic for HIV." As he left, D.B. heard Bloom talking about the situation to other staff members, and the subsequent referral was to Camcare, described as "a facility that provides services to the medically indigent and mentally ill." As a result of this experience, D.B. suffered emotional distress that manifested itself in significant physical symptoms, including weight loss, depression requiring drug therapy, and suicidal urges, as well as social consequences, including the end of D.B.'s relationship with his partner and strain in his relationship with his roommates. D.B. asserted a claim for emotional distress damages as well as federal and state statutory discrimination claims. The defendants failed to comply with discovery requests and rulings by the federal magistrate, who recommended entry of default judgment, which the court granted. Judge Brotman found that the dental center was covered as a "public accommodation" under both the ADA and the New Jersey Law Against Discrimination, and that D.B.'s allegations and pretrial testimony "conclusively establish that he was denied services and equal treatment by both defendants by virtue of his disability." Because compensatory and punitive damages are available under the statutory claims, Brotman decided it was unnecessary to rule on the tort claims. Finding "defendant's actions to be particularly offensive in light of their status as licensed health care providers who ought to be aware of and practice universal precautions" and that "defendants must recognize that such an experience could inhibit HIV-positive persons from seeking important medical services thus discouraging them from obtaining what they need even more than the average person -- regular, careful health monitoring," Brotman awarded D.B. $25,000 in compensatory damages and $25,000 in punitive damages, and awarded attorney fees in the amount of $31,967.61. The fee figure reflects a reduction from total hours claimed, to account for 7.4 hours that D.B.'s attorneys, cooperating attorneys for the ACLU of New Jersey, spent with media representatives discussing the case. "As a matter of law," commented Brotman, "this kind of activity attorneys generally do at their own expense." A.S.L. Federal Court Affirms Punitive Damages Award Against Doctor and Hospital in Denial of Treatment Case In Howe v. Hull, 873 F.Supp. 72 (N.D.Ohio 1994), District Judge John Potter found that Dr. Charles Hull and Fremont Memorial Hospital violated the Americans With Disabilities Act (ADA) when they denied Fred Charon, a person with AIDS, admission to the hospital for treatment of an allergic drug reaction. A jury had previously found that the defendants' actions violated section 504 of the Rehabilitation Act of 1973, imposing non-discrimination requirements on recipients of federal funding. In a new decision issued August 2, Judge Potter dealt with post-trial motions by the defendants attacking the jury verdict and award of compensatory and punitive damages to the estate of Charon. In brief, Potter denied all challenges to the verdict, holding, among other things, that compensatory and punitive damages are recoverable under section 504, even in cases where the individual plaintiff died prior to judgment. This ruling is especially significant because the counterpart provisions of the ADA do not authorize the award of monetary damages in an action challenging discrimination by places of public accommodation. In addition, Judge Potter rejected the application of the so-called "medical decision" exception to this case; some courts have held that section 504 does not apply to medical decisions by doctors or hospitals, but Potter found evidence in the record from which the jury could conclude that the refusal to admit Charon to the hospital had to do with factors other than purely medical decisions. Finally, Potter rejected the defendants' challenge to his decision to excuse a potential juror whose comments during voir dire revealed a bias against people who contracted HIV through gay sex. (The facts of the case, in brief, were that Charon and his lover, Bruce Howe, were traveling through Ohio when Charon suffered a sudden allergic reaction and Howe brought him to the emergency room, where the admitting physician, Dr. Hull, refused to admit him despite the recommendation of the emergency room attending physician.) The plaintiff was represented by Marc Elovitz of the ACLU AIDS & Civil Liberties Project. A.S.L. Federal Court Keeps HIV+ Bank Robber Imprisoned for Compassionate Purposes District Judge Aldrich ruled in United States v. Streat, 1995 WL 461761 (N.D.Ohio, Aug. 3), on remand from 22 F.3d 109 (6th Cir. 1994), that Carlo Streat, a convicted bank robber who suffers from end-stage AIDS, was entitled to a downward departure from federal sentencing guidelines to time served, since his physical condition was such that he was "hospice-eligible." On the other hand, Judge Aldrich found, in light of Streat's financial and social condition, that if his sentence was altered to time served, "Streat would be released from the hospital where he is currently located [the U.S. Medical Center for Federal Prisoners]. Streat has no assets, no medical insurance or coverage, and no relatives or friends on whom he could rely for comfort during his final days. Ironically, and tragically, a downward departure in this case would result in Streat's immediate release from the federal hospital, leaving Streat to die on the streets without anyone to whom he could turn for assistance or support. In this unfortunate circumstance, a downward departure would result in a punishment far greater than that currently faced by Streat." Accordingly, Aldrich ruled that Streat's original sentence of 63 months in prison should stand. A.S.L. North Carolina Court Reinstates Blind Social Worker Who Refused To Train PWA A blind social worker who refused to train a PWA (rendered blind by his illness) in the use of sharp instruments and utensils should not have been dismissed from her job, said the Court of Appeals of North Carolina in "Mendenhall v. No. Car. Dept. of Human Resources", 1995 WL 464232 (Aug. 1). Thelma Lu Mendenhall, a legally blind social worker for the North Carolina Division of Services for the Blind was randomly assigned to provide independent living services, including retraining, to a client who had become blind as a result of AIDS. Because Mendenhall was only able to instruct by touch, she was concerned that she would put herself at an unreasonable risk of infection if she trained the client with knives, scissors and other sharp instruments. When she requested a copy of her employer's AIDS policy, she received no reply. Upon learning that a patient who has suffered blindness as a result of AIDS is in the most contagious stage of the disease, she requested training in techniques to safely instruct her client in the use of knives and other sharp instruments. However, she was merely told to avoid physical contact, an impossible task since she was only able to instruct by touch because of her own impairment. In fact, her employer failed to provide any training that took into account Mendenhall's blindness. Thus, when she was ordered to complete her assessment of the client and initiate services, she refused and was terminated from her job for insubordination. After Mendenhall failed to achieve reinstatement through a three- step grievance process, an administrative law judge found that her termination had been without just cause and that the employer had failed to make reasonable accommodation for her handicap in violation of North Carolina law. Despite the ALJ's recommendation, the State Personnel Commission upheld her dismissal. Upon review, the lower court reversed the dismissal as erroneous, finding it was based upon an unreasonable assignment and violated due process. Furthermore, the court found that her insubordination was not willful because it was based upon reasonable fears of contagion. The Court of Appeals upheld the lower court's decision reinstating and reimbursing Mendenhall, reasoning that the agency's assignment of this client to her was unreasonable and that her fear was sufficiently grounded in fact. The court cited the lack of proper training, the heightened risk of infection because of the use of sharp objects, and the reasonableness of her fears of exposure based upon her research into the risk of servicing this client coupled with her own impairment. H.G.U. Federal Court Dismisses 8th Amendment Claims By Prisoners Premised on Fear of AIDS In Martin v. Vaughn, 1995 WL 458977 (E.D.Pa., May 30)(not officially published), District Judge Padova rejected claims by two state inmates that their 8th amendment rights were violated because the prison "failed to implement adequate procedures to screen food handlers for HIV and other communicable diseases." Padova dismissed the complaint on two grounds. First, the court found that the plaintiffs lacked standing to raise these claims, commenting that they had not alleged that either of them had actually contracted HIV "or that they have any possibility of doing so because of the allegedly inadequate screening process." Their only alleged injury was fear or mental anguish, which Padova found insufficient to ground an 8th amendment claim. Secondly, Padova found that the complaint failed to state a claim under the "deliberate indifference" standard established by the Supreme Court for prisoner claims of cruel and unusual punishment, citing prior federal court decisions rejecting 8th amendment "fear of AIDS" claims. A.S.L. Federal Court Rules Demand for Money Damages in ADA Case Is Irrevocable Once Jury Trial Is Granted Sidney Abbott sued Dr. Randon Bragdon (a dentist) under the American With Disabilities Act, claiming Bragdon unlawfully refused dental services because Abbott is HIV+. In her first complaint, Abbott did not state a claim for monetary damages, but she subsequently moved to amend to add such a claim. Bragdon then demanded a jury trial, and the court granted this request. Then Abbott moved to amend again, revoking the monetary damage claim, explicitly because she sought to avoid a jury trial. District Judge Brody found that under Rule 39 of the Federal Rules, once a jury trial demand has been granted, the trial "shall be by jury, unless (1) the parties. . .consent. . . or (2) the court. . .finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the United States." Thus, Brody denied Abbot's motion to amend to remove the monetary damage claim. Abbot v. Bragdon, 1995 WL 455751 (D.Maine, July 25). A.S.L. Court Approves Consent Decree Settling HIV Discrimination Case Where Co-Workers Voted to Exclude PWA When "John Doe" told his employer, Gulf Grinding Company, that he had AIDS, his supervisor distributed ballots to Doe's fellow employees, asking them to vote on whether Doe should be allowed to continue working with them. Half of the employees voted to fire Doe, with enough of the rest abstaining to create a majority against him, and Doe was fired. The EEOC sued Gulf Grinding on Doe's behalf. On July 21, U.S. District Judge Lee Rosenthal (S.D.Tex.) approved a consent decree under which Gulf will pay Doe $65,000, give him neutral references for future employment, and provide management employees training on their responsibilities under federal discrimination laws, including the ADA. The company also agreed to establish confidentiality policies for employee medical information, and to refrain in future from bringing any issues about employee discharges to fellow employees for a vote. BNA Daily Labor Report No. 157, August 15, 1995. A.S.L. Federal Court Approves $100,000 Settlement in AIDS Discrimination Suit U.S. District Judge Ewing Werlein, S.D. Texas, approved a settlement in EEOC v. Chemtech International Corp., No. H-94-2848, on August 23. Under the settlement, Girsa, Inc., successor to the named defendant corporation, will pay $50,000 in damages to Joe Puga, a person with AIDS who was employed by Chemtech and was discharged while on a medical leave of absence. As part of the settlement, Girsa's insurance carrier will provide up to $50,000 worth of health insurance benefits, and Girsa will provide AIDS training to its staff. The case is actually most noteworthy on jurisdictional grounds. It seems that Chemtech, at the time of the original filing of the complaint, sought to avoid ADA liability on the ground that it had fewer than 25 employees, the number required when the complaint was filed. However, the court found that Chemtech and the other company with which Chemtech merged to form Girsa, taken together, met the statutory number, treating them as an "integrated enterprise." See BNA Daily Labor Report No. 165, Aug. 25, 1995. A.S.L. AIDS Law & Society Notes The Associated Press reported in mid-July that a blue ribbon panel appointed by Health and Human Services Secretary Donna Shalala to study the response of government and industry to the problem of HIV-contamination of the blood supply during the early years of the epidemic had concluded that mistakes and omissions to act at all levels of the blood supply system had contributed to the failure to prevent HIV transmission to hemophiliacs and transfusion recipients. The 14-member committee's report was harshly critical of the FDA, the blood banking industry, and physicians who failed to warn their patients. The legislature of North Carolina, in its infinite wisdom in protecting the public health, enacted House Bill 834, effective July 29, which mandates that schools in that state develop AIDS education programs that tell students the only way to avoid getting AIDS is to restrict their sexual activity to a monogamous, heterosexual marital relationship. Any educational program that mentions homosexual transmission of HIV is supposed to inform students that such sexual activity is illegal under North Carolina's sodomy law. That's deter 'em! The New York State Legislature has failed for two years to act on legislative proposals concerning HIV-testing of newborns and communication of test results to parents. Now Gov. George Pataki and Attorney General Dennis Vacco appear to be taking matters into their own hands, by reportedly negotiating a settlement in a lawsuit filed against the state by the Association to Benefit Children. According to an August 7 Associated Press article published in the Buffalo News, Vacco and Pataki have said they agree with the plaintiffs' position. A grievance board for Congressional employees upheld a claim by Bruce Taylor, a former assistant to U.S. Rep. Barbara-Rose Collins, that Collins dismissed Tayler because she feared he had AIDS. Taylor was fired in December two days after his partner died of AIDS. The Office of Fair Employment Practice rejected Collins' argument that Taylor's firing was part of an overall staff reduction. Under the ADA, discrimination against someone because they are associated with a PWA is unlawful. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS ANNOUNCEMENTS Lambda Legal Defense & Education Fund is accepting applications for the Managing Attorney position in its Western Regional Office in Los Angeles. The managing attorney is responsible for administration of the office, working with a supervising attorney, development associate, legal assistant, administrative assistant, law clerks and student interns. The managing attorney will also spend part of her/his time working on Lambda cases, public speaking, and public relations/media work. Management experience and at least five years practice experience is preferred, as well as demonstrated awareness of and commitment to concerns of lesbians, gay men, people with HIV/AIDS, and a firm commitment to multiculturalism. People of color, women and people with disabilities are especially encouraged to apply. Salary to mid $50's, depending on experience, plus benefits. Resumes and writing samples should be sent immediately to Kevin Cathcart, Executive Director, Lambda Legal Defense & Education Fund, 666 Broadway, 12th Floor, New York, NY 10012. LESBIAN & GAY & RELATED LEGAL ISSUES: Alter, Daniel S., Confronting the Queer and Present Danger: How to Use the First Amendment When Dealing with Issues of Sexual Orientation Speech and Military Service, 22 Hum. Rts. No. 3, 22 (Summer 1995). Bronnitt, Simon, Legislation Comment: Protecting Sexual Privacy Under the Criminal Law - Human Rights (Sexual Conduct) Act of 1994 (Cth), 19 Crim. L. J. 222 (1995) (Australian law journal). Brown, Jennifer Gerarda, Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage, 68 S. Cal. L. Rev. 745 (May 1995). Bryant, Suzanne, Second Parent Adoption: A Model Brief, 2 Duke J. Gender L. & Pol. 233 (Spring 1995). Caudron, Shari, Open the Corporate Closet to Sexual Orientation Issues, Personnel J., August 1995, at 42. Chase, Adam, Tax Planning for Same-Sex Couples, 72 Denver U. L. Rev. 359 (1995) (should prove a useful resource for practitioners). Dolgin, Janet L., The Law Debates the Family: Reproductive Transformations, 7 Yale J. L. & Feminism 37 (1995). Dressler, Joshua, When "Heterosexual" Men Kill "Homosexual" Men: Reflections on Provocation Law, Sexual Advances, and the "Reasonable Man" Standard, 85 J. Crim. L. & Criminology 726 (Winter 1995). Dunlap, Mary C., Are We Integrated Yet? Pursuing the Complex Question of Values, Demographics and Personalities, 29 U. San Francisco L. Rev. 693 (Spring 1995) (preview of forthcoming autobiography of lesbian-feminist attorney). Elovitz, Marc E., Adoption by Lesbian and Gay People: The Use and Mis-Use of Social Science Research, 2 Duke J. Gender L. & Pol. 207 (Spring 1995). Gallagher, Michael J., Amendment 2, 4 L. & Sexuality 123 (1994). Gilmore, Angela, They're Just Funny That Way: Lesbians, Gay Men and African American Communities as Viewed Through the Privacy Prism, 38 Howard L.J. 231 (Fall 1994). Greenawalt, Kent, Legal Enforcement of Morality, 85 J. Crim. L. & Criminology 710 (Winter 1995). Greene, Dwight, Hate Crimes, 48 U. Miami L. Rev. 905 (March 1994) (essay). Gutierrez, Fernando J., Gay and Lesbian: An Ethnic Identity Deserving Equal Protection, 4 L. & Sexuality 195 (1994). Heredia, Hannibal F., Intolerance in the Heart of Dixie: The Constitutionality of Alabama Code 16-1-28 Under the First Amendment, 4 L. & Sexuality 53 (1994). Horne, Philip S., Challenging Public- and Private-Sector Benefit Schemes Which Discriminate Against Unmarried Opposite-Sex and Same- Sex Partners, 4 L. & Sexuality 35 (1994). Infanti, Anthony C., Baehr v. Lewin: A Step in the Right Direction for Gay Rights?, 4 L. & Sexuality 1 (1994). Keller, Jeffrey, On Becoming a Fag, 58 Saskatchewan L. Rev. 191 (1994). Koppelman, Andrew, No Fantasy Island: Gay Rites Gain Momentum in Hawaii, The New Republic, August 7, 1995, pp. 22-24. Kysella, William H., Jr., Gerrymandering Against Gays?, 4 L. & Sexuality 249 (1994). Lashman, Deborah, Second Parent Adoption: A Personal Perspective, 2 Duke J. Gender L. & Pol. 227 (Spring 1995). Martin, Biddy, Extraordinary Homosexuals and the Fear of Being Ordinary, 6 Differences Nos. 2 & 3, 100 (1995). Mohr, Richard D., The Perils of Postmodernity for Gay Rights, 8 C.J.L.J. 5 (January 1995). Patterson, Charlotte J., Adoption of Minor Children by Lesbian and Gay Adults: A Social Science Perspective, 2 Duke J. Gender L. & Pol. 191 (Spring 1995). Quinn, John R., The Lost Language of the Irishgaymale: Textualization in Ireland's Law and Literature (or The Most Hidden Ireland), 26 Col. Hum. Rts. L. Rev. 553 (Spring 1995). Riehl, Carl, Uncle Sam Has to Want You: The Right of Gay Men and Lesbians (And All Other Americans) to Bear Arms in the Military, 26 Rutgers L.J. 343 (Winter 1995) (Author provocatively suggests that 2nd Amendment creates a constitutional right to serve in the military). Rosenblum, Darren, Queer Intersectionality and the Failure of Recent Lesbian and Gay `Victories', 4 L. & Sexuality 83 (1994). Saldeen, Ake, Sweden: Family Counselling, the Tortious Liability of Parents and Homosexual Partnership, 33 U. Louisville J. of Fam. L. 513 (1994-95) (Annual Survey of Family Law). Schweitzer, Thomas A., Hate Speech on Campus and the First Amendment: Can They Be Reconciled?, 27 Conn. L. Rev. 493 (Winter 1995). Strasser, Mark, Unconstitutional? Don't Ask; If It Is, Don't Tell: On Deference, Rationality and the Constitution, 66 U. Colo. L. Rev. 375 (1995) (gays in the military). Tamayo, Yvonne A., Sexuality, Morality and the Law: The Custody Battle of a Non-Traditional Mother, 45 Syracuse L. Rev. 853 (1994) (Comment on Bottoms v. Bottoms). Werhan, Keith, The Liberalization of Freedom of Speech on a Conservative Court, 80 Iowa L. Rev. 51 (October 1994). Wilkinson, Brian, Moving Towards Equality: Homosexual Law Reform in Ireland, 45 Northern Ireland L. Q. 252 (Autumn 1994). Wolfson, Evan, Crossing the Threshold: Equal Marriage Rights for Lesbian and Gay Men and the Intra-community Critique, 21 N.Y.U. Rev. L. & Social Change 567 (1994-95). Zicklin, Gilbert, Deconstructing Legal Rationality: The Case of Lesbian and Gay Family Relationships, 21 Marriage & Fam. Rev. 55 (1995). Book Reviews: Boyd, Susan B., Rights of Passage: Struggles for Lesbian and Gay Legal Equality, by Didi Herman, 28 U. Brit. Col. L. Rev. 399 (1994). Letteney, Scott R., Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, 5 U.S. Air Force Acad. J. Legal Studies 149 (1994-95). Student Notes & Comments: Aznavoorian, Vartan, Using Racketeering Laws to Control Obscenity: Alexander v. United States and the Perversion of RICO, 36 Boston Coll. L. Rev. 553 (May 1995). Craddock, Jeanne M., Constitutional Law -- "Words That Injure; Laws That Silence": Campus Hate Speech Codes & the Threat to American Education, 22 Fla. St. U. L. Rev. 1047 (Spring 1995). Cruz, David B., Piety and Prejudice: Free Exercise Exemption from Laws Prohibiting Sexual Orientation Discrimination, 69 N.Y.U. L. Rev. 1176 (Dec. 1994). Faucette, Jeffrey E., The Freedom of Speech at Risk in Cyberspace: Obscenity Doctrine and a Frightened University's Censorship of Sex on the Internet, 44 Duke L.J. 1155 (April 1995). Feist, Pauline G., State v. Baxley: A Disappointing Louisiana Supreme Court Decision, 21 Southern U. L. Rev. 129 (1993-94) (Louisiana sodomy decision). Francis, Joyce F., and Sarah Castle Hardison, Constitutional Law -- First Amendment Overbreadth Doctrine -- Older Minors and Adults' Access Rights to Constitutionally Protected Material, 62 Tenn. L. Rev. 353 (Winter 1995). Healy, Margaret A., Prosecuting Child Sex Tourists at Home: Do Laws in Sweden, Australia, and the United States Safeguard the Rights of Children as Mandated by International Law?, 18 Fordham Int'l L.J. 1852 (May 1995). Krygowski, Walter John, Homosexuality and the Military Mission: The Failure of the "Don't Ask, Don't Tell" Policy, 20 U. Dayton L. Rev. 875 (Spring 1995). Lash, Joseph W., Wisconsin v. Mitchell & R.A.V. v. St. Paul: Developing a Constitutional Test for Ethnic Intimidation Laws, 40 Wayne L. Rev. 1653 (Summer 1994). Lucious, Felicia E., Adoption of Tammy: Should Homosexuals Adopt Children?, 21 Southern U. L. Rev. 171 (1993-94). Markey, Maureen E., The Price of Landlords' "Free" Exercise of Religion: Tenant's Right to Discrimination-Free Housing and Privacy, 22 Fordham Urban L.J. 699 (1995). McClister, Chase G., Prohibition of Obscene Imports in the United Kingdom -- A Violation of Article 36 of the Treaty Establishing the European Community?, 13 Dickinson J. Int'l L. 329 (Winter 1995). Recent Cases, Constitutional Law -- Equal Protection -- D.C. Circuit Upholds Military Discharge Based on a Statement of Homosexual Orientation -- Steffan v. Perry, 41 F.3d 667 (D.C.Cir. 1994), 108 Harv. L. Rev. 1779 (May 1995). Shapiro, Mathieu J., When Is a Conflict Really a Conflict? Outing and the Law, 36 Boston Coll. L. Rev. 587 (May 1995). Stozek, Lisa M., Wisconsin v. Mitchell: The End of Hate Crimes or Just the End of the First Amendment?, 14 N. Ill. U. L. Rev. 861 (Summer 1994). Tenney, Nancy, The Constitutional Imperative of Reality in Public School Curricula: Untruths About Homosexuality as a Violation of the First Amendment, 60 Brooklyn L. Rev. 1599 (1995). Specially Noted: The article about same-sex marriage by Prof. Jennifer Brown noted above is worth special attention. Prof. Brown has attempted to calculate the net financial benefits that may accrue to the first state to recognize same-sex marriages, and the identify the states with the most incentive to undertake the venture, settling on Hawaii, Vermont, Nevada and New Mexico. Worth reading and discussion. * * * Volume 4 of Law & Sexuality: A Review of Lesbian and Gay Legal Issues has been published. Individual articles are noted above. Copies of the issue may be obtained from the journal's office at Tulane University Law School, 6329 Freret St., New Orleans, LA 70118 (phone 504-865-5835). Copies are $12 for individuals, $8 for students, and $20 for institutions. Symposia: The infamous study about pornography on the Internet, together with academic articles responding the study, can be found in 83 Georgetown L. Rev. No. 5 (June 1995). Several of the articles specifically reference the issue of lesbian/gay materials on-line. AIDS & RELATED LEGAL ISSUES: Amaro, Hortensia, Love, Sex, and Power: Considering Women's Realities in HIV Prevention, 50 Amer. Psychologist 437 (June 1995). Gay, Terry Christovich, and Paige Freeman Rosato, Combatting Fear of Future Injury and Medical Monitoring Claims, 61 Defense Counsel J. 554 (Oct. 1994). Gruskin, Sofia, Negotiating the Relationship of HIV/AIDS to Reproductive Health and Reproductive Rights, 44 Amer. U. L. Rev. 1191 (April 1995). McNary-Keith, Sandra E., AIDS in Public Schools: Resolved Issues and Continuing Controversy, 24 J. L. & Educ. 69 (Winter 1995). Opperer, Joshua F., Mandatory HIV Testing and Disclosure: A Legal, Ethical and Medical Perspective, 61 Med. Trial Tech. Q. 624 (1995). Spahn, Gary J., and Timothy S. Baird, Closing the Floodgates on Fear of AIDS Claims, 37 For the Defense No. 6, 8 (June 1995). Weber, Mark C., Disability Discrimination by State and Local Government: The Relationship Between Section 504 of the Rehabilitation Act and Title II of the Americans With Disabilities Act, 36 Wm. & Mary L. Rev. 1089 (1995). Weidlich, Thom, Suits by Patients Surge in Misdiagnosed AIDS Cases, Nat'l L.J., August 7, 1995, p. A12. Zeldin, Jessica, Disabling Employers: Problems with the ADA's Confidentiality Requirement in Unionized Workplaces, 73 Wash. U. L. Q. 737 (Summer 1995). Student Notes & Comments: Anderson, Paul M., Cautious Defense: Should I Be Afraid to Guard You? (Mandatory AIDS Testing in Professional Team Sports), 5 Marquette Sports L. J. 279 (Spring 1995). Anderson, Philip Richard, Allocating the Costs of Transfusion-AIDS: An Oregon Perspective, 73 Oregon L. Rev. 1057 (Winter 1994). Andres, Paula L., Sticking It to the Fourth Amendment: Failure of Missouri's HIV Testing Law for Juvenile Sex Offenders, 63 UMKC L. Rev. 455 (Spring 1995). Eggleston, Cynthia Ray, Torts -- Carroll v. Sisters of Saint Francis Health Services, Inc.: Tennessee Adopts the Actual-Exposure Approach in Fear-of-AIDS Cases, 25 U. Memphis L. Rev. 1495 (Summer 1995). Farber, H. Miriam, Subterfuge: Do Coverage Limitations and Exclusions in Employer-Provided Health Care Plans Violate the Americans With Disabilities Act?, 69 N.Y.U. L. Rev. 850 (Oct.-Nov. 1994). Flynn, John L., Mixed-Motive Causation Under the ADA: Linked Statutes, Fuzzy Thinking, and Clear Statements, 83 Georgetown L.J. 2009 (June 1995). Goldstein, Karen L., Balancing Risks and Rights: HIV Testing Regimes for Pregnant Women, 4 Cornell J. L. & Pub. Pol. 609 (Spring 1995). Guice, Tracy S., AIDS Discrimination in Employee Health Benefits: Is There a Federal Remedy for Modification of a Plan Once an Employee Develops AIDS?, 18 L. & Psychology Rev. 377 (Spring 1994). Hansen, Amy L., Establishing Uniformity in HIV-Fear Cases: A Modification of the Distinct Event Approach, 29 Valparaiso U. L. Rev. 1251 (Summer 1995). Loparco, Joseph, Marchica v. Long Island Railroad: "AIDS-Phobia" Recovery Under the Federal Employers' Liability Act, 15 Pace L. Rev. 575 (Winter 1995). McAnulty, Mark, Shattering the "Reasonable Window of Anxiety" -- Recovery of Emotional Distress Damages for the Fear of Contracting AIDS, 19 S. Ill. U. L.J. 661 (Spring 1995). Montanaro, Lisa A., The Americans With Disabilities Act: Will the Court Get the Hint? Congress' Attempt to Raise the Status of Persons With Disabilities in Equal Protection Cases, 15 Pace L. Rev. 621 (Winter 1995). Relihan, Julie C., Expediting FDA Approval of AIDS Drugs: An International Approach, 13 Boston U. Int'l L. J. 229 (Spring 1995). The United States Exclusion of HIV Positive Aliens: Realities and Illusions, 18 Suffolk Transnat'l L. Rev. 269 (Winter 1995). Tourk, Jessica M., Controlling Expression: The Stagnant Policy of the Centers for Disease Control in the Second Decade of AIDS, 13 Cardozo Arts & Ent. L. J. 595 (1995) (CDC restrictions on content of AIDS education materials funded by federal government). Symposia: Symposium on the Americans With Disabilities Act, 8 J. L. & Health Nos. 1 & 2 (1993-94). * * * Symposium on the Right to Die, 9 Notre Dame J. L. Ethics & Pub. Pol. No. 2 (1995). Editor's Note: All points of view expressed in Lesbian/Gay Law Notes are those of identified writers, and are not official positions of the Lesbian and Gay Law Association of Greater New York. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in Law Notes is welcome and will be published subject to editing. * * * Law Notes is distributed monthly to members of the lesbian and gay bar associations of New York City, Western New York, Chicago, Maine, Massachusetts and Ohio. Readers who learn of important local decisions that might not be nationally reported are urged to send copies of opinions to the editor.