LESBIAN/GAY LAW NOTES Lesbian & Gay Law Association of Greater New York ISSN 8755 9021 January 1996 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; Steven Kolodny, Esq., New York; Todd V. Lamb, Esq., New York; Michael S. Ryan, Esq., New York; Mark N. Sperber, Esq., New York; Dirk Williams, Esq., Boston; Robin Miller, Esq., Seattle. Circulation: Daniel Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118. LeGaL Homepage: http://www.interport.net:80/~le-gal (C) 1996 by Lesbian & Gay Law Association of Greater New York $45/yr by subscription (Foreign Rate US$60) FEDERAL APPEALS COURT RULES THAT SAME-SEX RELATIONSHIPS ARE PROTECTED BY CONSTITUTIONAL RIGHT OF INTIMATE ASSOCIATION In an historic ruling on an appeal by Robin Joy Shahar from a lower court decision that dismissed her lawsuit against Georgia Attorney General Michael J. Bowers, a panel of the Eleventh Circuit Court of Appeals held on Dec. 20 in Shahar v. Bowers, 1995 WL 713127, that Shahar's relationship with her partner, Francine Shahar, is protected constitutional rights of intimate and expressive association. This is the first federal appellate level decision to find constitutional protection for gay relationships. But Bowers has petitioned for a rehearing before all the judges of the Eleventh Circuit, so the battle is far from over. The American Civil Liberties Union represents Shahar in the case. Ruth Harlow of the ACLU national office argued the appeal, with assistance from Debra Schwartz of Atlanta and Bill Rubenstein, formerly the director of the ACLU's Lesbian and Gay Rights Project and now a visiting professor at Stanford Law School. The Georgia Attorney General's Office was represented by Dorothy Kirkley from the Atlanta office of the law firm Jones, Day, Reavis & Pogue. Shahar, who had worked as a summer clerk for the Georgia Law Department, was offered (and accepted) a job there upon graduation from Emory Law School in 1991, where she ranked sixth in her graduating class and was an editor on the law review. But when Bowers learned that Shahar planned to have a marriage ceremony with her partner, he withdrew the job, writing her that he was taking action because of Shahar's planned marriage. "As the chief legal officer of this state, inaction on my part would constitute tacit approval of this purported marriage and jeopardize the proper function of this office," wrote Bowers. (This is the Michael Bowers of Bowers v. Hardwick, the infamous case in which the U.S. Supreme Court upheld the constitutionality of the Georgia felony sodomy law in 1986.) Shahar went ahead with her ceremony, which was performed by Rabbi Sharon Kleinbaum, now the rabbi at New York City's Congregation Beth Simchat Torah. Then she filed a federal lawsuit, claiming that Bowers' action violated her constitutional rights to freedom of association, free exercise of religion, and equal protection of the laws. While the lawsuit was pending, Shahar obtained a job as a lawyer for the City of Atlanta. Responding to a motion by Bowers for summary judgment, District Judge Richard C. Freeman found that Bowers' action did burdened Shahar's constitutional rights, but reviewed the action using the Pickering "balancing test" devised by the Supreme Court for cases in which government employers take action against employees because the employees have exercised their right to freedom of speech on controversial issues. 836 F.Supp. 859 (N.D.Ga. 1993). Under this test, the court weighs the employee's free speech interest against the employer's interest in the effective operation of its department. Freeman accepted Bowers' argument that because Georgia does not authorize same sex marriages and subjects homosexual acts to criminal prosecution, Bowers' concerns about the reputation of his office and possible disruption were Shahar to be employed outweighed her interest in freedom of association and religious practice. All three 11th Circuit judges agreed with Freeman that Bowers' action burdened Shahar's constitutional rights. In an opinion for himself and Judge Lewis R. Morgan, Judge John C. Godbold reviewed the facts about the Shahars' marriage (both women changed their former surnames to Shahar as part of the marriage process), discussing in detail their membership in Atlanta's lesbian and gay synagogue, which is affiliated with the Reconstructionist Movement of American Judaism, the role Judaism played in their lives, the standards imposed by Rabbi Kleinbaum in agreeing to perform their ceremony, and the details of the ceremony itself. Godbold concluded that the "evidence demonstrates without dispute that same-sex marriage is accepted within the Reconstructionist Movement of Judaism, that Shahar and her partner are committed to that belief, and that, in keeping with their Jewish principles, they carefully and thoughtfully prepared for marriage. . . The intimate relationship between Shahar and her partner whom she planned to marry did not involve marriage in a civil, legal sense but it was inextricably entwined with Shahar's exercise of her religious beliefs. The court holds that the district court did not err in defining that intimate relationship as constitutionally protected." But Godbold and Morgan disagreed with how Freeman had proceeded from there. They found that the balancing test was not appropriate for this case, arguing that because a fundamental constitutional right of association was involved, the Attorney General should be required to show that he has a compelling interest in refusing to employ Shahar. The compelling interest test is the most demanding level of judicial review of a government policy or decision; such strict scrutiny usually means that the government policy will be held invalid. They voted to return the case to the district court for a trial and determination of whether Bowers could meet the test. Judge Phyllis A. Kravitch disagreed that the compelling interest test should be used. In her view, since this was a government employment case, the Supreme Court's somewhat more deferential balancing test was appropriate. However, she felt that Freeman had misjudged the relative weight of Shahar's and Bowers' interests. Kravitch found that Shahar's right was "close to the core of the constitutional right to intimate association," and thus weighed quite heavily. By contrast, she found that Bowers' concerns about disruption of his office or compromising of the office's standing with the public were less significant. "Although the unique status of Bowers' office makes this a close case," she wrote, "I conclude that Shahar's constitutional interest in pursuing her intimate association outweighs any threat to the efficient operation of the Georgia Department of Law." Instead of ordering a new trial, Kravitch would have granted summary judgment to Shahar and ordered Bowers to hire her. The judges also differed over Shahar's religious freedom and equal protection claims. Godbold found that these claims were also entitled to a compelling interest standard, but in this he was alone. Morgan and Kravitch agreed with the trial court's finding that Shahar did not suffer discrimination because of her sexual orientation, as such, and thus had not stated a valid claim under the equal protection clause. (The trial judge had drawn a distinction between status and conduct. Bowers claimed he did not discriminate based on sexual orientation but could not employ a lawyer who was participating in a same-sex marriage. The trial judge had accepted this argument at face value.) Morgan stated without explanation that he disagreed with Godbold's analysis of the religious freedom claim. Judge Kravitch took the position that it was unnecessary to address the religious freedom claim, because, in her view, summary judgment should be granted in Shahar's favor on her freedom of association claims. The three judges on this panel were all appointed by liberal Democratic presidents -- Godbold and Morgan by Lyndon Baines Johnson, and Kravitch by Jimmy Carter. Most of the judges on the full Eleventh Circuit were appointed by Ronald Reagan and George Bush, so it is hard to be totally optimistic about the outcome in a reargument before the entire panel. Nonetheless, the decision marks an important milestone in the battle for equality by the lesbian and gay community. A.S.L. FEDERAL APPEALS COURT LIMITS PRIVACY RIGHTS FOR PRISONERS WITH AIDS Following a lengthy analysis of federal constitutional privacy concepts, the U.S. Court of Appeals for the 7th Circuit concluded that state prison officials are immune from suit by an inmate whose HIV-status was allegedly revealed by a prison guard to other guards and inmates. In an opinion by Chief Judge Richard Posner, the court partially reversed a ruling by the district court that had rejected a summary judgment motion from the defendants in Anderson v. Romero, 1995 WL 744033 (Dec. 15). State prison inmate Dennis Anderson was diagnosed as HIV+ while confined at Stateville Penitentiary. Upon his transfer to Joliet, Anderson claimed that Romero, the superintendent of his cell house, told a prison guard, Douglas, that Anderson was HIV+. Anderson alleged that Douglas then spread word about Anderson's HIV-status to other guards and inmates, denied him haircut and exercise privileges, and made homophobic and AIDS-phobic comments to him. Anderson sued for damages under 42 U.S.C. sec. 1983; he has since died from AIDS and his estate has pursued the claim. The district judge refused to dismiss the claim on summary judgment, holding that further factual inquiry was necessary to rule on the defendants' qualified immunity claims. The defendants appealed. Posner observed that the court of appeals was precluded from ruling on any questions as to which further factual determination was necessary. But he found that several aspects of the claim could be disposed of through summary judgment, in light of the aspect of the qualified immunity doctrine that requires recognition of immunity when a constitutional right was not sufficient established at the time of an incident for it to be held that a public official should be charged with knowledge that his/her action was in violation of a constitutional right. The incidents detailed in Anderson's complaint allegedly occurred in 1992. Posner concluded that as of 1992 it could not be said that there was a well-established constitutional right of privacy with respect to a prisoner's HIV-status. Going further, the court then held that there is no such right. Posner started from the premise that there might be a generalized right of privacy in medical records, but that information about a communicable disease, such as AIDS, presented different particular issues compelling a finding of no privacy protection. "Neither in 1992 nor today was (is) the law clearly established that a prison cannot without violating the constitutional rights of its HIV-positive inmates reveal their condition to other inmates and to guards in order to enable those other inmates and those guards to protect themselves from infection," he argued. While acknowledging arguments advanced in an amicus brief by Lambda Legal Defense Fund that the best policy to prevent HIV transmission is a "universal precautions" approach rather than publicizing the HIV status of those individuals as to whom it is known, Posner insisted: "Whether the same approach would be adequate in the prison setting may be doubted." He noted that the 7th Circuit previously held that a prison violated the 8th Amendment by failing to take steps to protect an inmate from being raped by an HIV+ fellow inmate; publicizing the HIV-status of an inmate could be part of a prison's duty to protect other inmates, he suggested. "Among the alternatives to universal precautions as methods of limiting the spread of AIDS in prison are the segregation of HIV- positive prisoners from the rest of the prison population and the ad hoc warning of endangered inmates or staff. The first alternative has been held to be constitutional against the argument that it results in disclosing the identity of the HIV-positive inmates to the rest of the prison community. . . The second is illustrated by this case. Unless the unconstitutionality of the second alternative was clearly established in 1992, Anderson's estate cannot prevail," Posner said. After noting that some district court decisions had indeed recognized such a right, Posner asserted that district court decisions do not constitute precedent; only appellate rulings could serve to establish a constitutional right, he argued. He also rejected the argument that the Illinois AIDS Confidentiality Act was relevant to whether Anderson had a privacy right, contending that the prison's duty to protect other inmates was derived from the 8th Amendment and thus overrode any state statutory right of Anderson. "Now the issue is before us and we hold that warnings to endangered inmates or staff do not violate the Constitution just because they are ad hoc," he concluded. On the other hand, Posner found, to the extent that Anderson's allegations suggested that he was "punished" due to his HIV status, there might be a viable sec. 1983 claim. Focusing on the denial of haircuts and regular yard exercise, Posner commented, "Although this is the first appellate case in which these specific modalities of punishing HIV carriers have been alleged, it has long been clear that the 8th Amendment forbids the state to punish people for a physical condition, as distinct from acts, . . . and that the equal protection clause forbids the state to treat one group, including a group of prison inmates, arbitrarily worse than another. . . Anderson's HIV status may not have been the only reason for refusing him a haircut and exercise and there may have been some justification for these measures of which we are not at present aware, but the facts are not sufficiently developed to enable either conclusion to be drawn. We therefore do not have jurisdiction to review the district court's denial of immunity with respect to this part of the complaint." Posner also noted that the court's decision was not suggesting that all state prisoners have a federal constitutional right to have haircuts; rather, he noted that there is an Illinois statute expressly giving inmates an entitlement to haircuts, so an arbitrary denial of the entitlement would create an issue of constitutional dimensions. A.S.L. LESBIAN/GAY LEGAL NEWS Wyoming Supreme Court, Louisiana Appeals Court Reject Appeals by Lesbian Mothers Appellate decisions in Wyoming and Louisiana have both accepted the argument that a child's "exposure" to his or her biological mother's "lesbian relationship" is not in the best interest of the child. In neither case did the court's opinion reflect any consideration of social science research that effectively discredits this argument. In both cases, the decisions left in place restrictive visitation conditions that had been ordered by lower courts. Ironically, yet another study published in the American Journal of Orthopsychiatry just days after the decisions were issued concludes (yet again) that children raised by lesbian parents were on balance no different from children raised by heterosexual parents in terms of psychological adjustment or disturbance. The first opinion was issued Dec. 15 by the Louisiana Court of Appeals, First Circuit. Rowan v. Scott, 1995 WL 743579. Robin Rowan and James Scott were married in 1982 in Canada, then moved to Louisiana six weeks later, when Robin met Karri Martin while attending a Bible school. They had two children, sons born in 1984 and 1987. Karri and her husband were having difficulty conceiving a child, so Jim and Robin offered to do so for them; their third child was given to the Martins for adoption. Robin and Jim separated in 1991 and Robin filed a divorce proceeding in 1992. A joint custody agreement was worked out, with Robin as primary custodian, and she moved with the boys back to Canada to be near her parents. The parties agreed that neither would engage in non- marital activity while their children were in the house. Karri and her husband, who in the interim had been living in Africa, divorced and Karri moved back to Louisiana. Robin notified Jim that she was moving back to Louisiana to live with Karri. Jim then petitioned for custody of the boys. The trial judge found that Robin's decision to co-habitate with Karri had precipitated the action and that it was in the best interest of the children to make Jim the primary custodian within the context of joint custody. The court of appeals affirmed in an opinion by Judge Gonzales over the dissent of Chief Judge Lottinger. Gonzales wrote that "we find that Robin's decision to live with the children and her lesbian lover in the same residence was a change of circumstances which materially affects the welfare of the minor children." The record showed that Robin and Karri showed physical affection for each other in the presence of the children, but Robin testified that they did not engage in sexual activity while the children were in the house. Jim had presented testimony by an "expert" witness, a clinical psychologist named Robert Snyder, who stated his opinion that exposing the children to Robin and Karri's relationship would be emotionally disturbing for them, and that Robin's decision to enroll them in a non-denominational Christian religious school would cause a "conflictual situation" because of the discordance between the lessons the children would receive and the example of their home. Dr. Snyder testified that Jim was the better parent without having ever met or examined Robin. Jim, by the way, had a girlfriend and did engage in sexual activity with her while the children were in the house. After going to great lengths to argue that the court was not basing its decision on Robin's sexual orientation, but rather on her decision to expose her children to her relationship with Karri, Gonzalez concluded: "It is the opinion of this court that under such facts, primary custody with the homosexual parent would rarely be held to be in the best interests of the child." Dissenting, Chief Judge Lottinger asserted: "Because there is no evidence in the record to suggest that the boys are aware of and adversely affected by their mother's unconventional lifestyle or the sexual nature of her relationship with Ms. Martin, I am forced to conclude that Mr. Scott has failed to show that a change of custody in his favor would be in the best interest of the children at this time. I am of the opinion that the trial judge's decision was manifestly erroneous. Dr. Snyder did offer his opinions as to the boys' best interest, but I note that he did not evaluate Ms. Scott, nor did he relate any specific instances where external conflicts have intruded upon and affected the boys' life with their mother. While I express grave concerns as to Ms. Scott's ability to shield her children in the future form negative criticism of her chosen lifestyle, I cannot and will not allow such fears to dictate my decision in this case." In some ways similar, the decision by the Wyoming Supreme Court in Hertzler v. Hertzler, 1995 WL 744037 (Dec. 18), is even more egregious because, while agreeing that the trial court was biased and the non-gay parent's "expert" witness was not credible, a majority of the court nonetheless affirmed the lower court's decision by indulging a presumption that children need to be protected from a lesbian parent. This case had become something of a cause celebre, with amicus briefs on file from Lambda Legal Defense, the National Center for Lesbian Rights, the ACLU, the American Psychological Association and Wyoming Psychological Association, and United Gays and Lesbians of Wyoming. Dean and Pamela Hertzler married in 1976 and subsequently adopted two children, a boy and a girl, when they were unable to conceive children. Two weeks after the second adoption became final, Pamela took the children and left Dean, filing for divorce. Pamela was given primary custody, "expressly conditioned upon her disavowal of lesbianism and subject to his liberal visitation rights." Less than a year later, Pamela's parents notified Dean that their daughter was a lesbian. Pamela quickly consented to give Dean primary custody subject to her liberal visitation rights. By that time, Pamela was living with a lover and had moved to Ohio. Shortly thereafter, Dean married Christine, a fundamentalist Christian he met through a match-making service. She made it her business to make the two children fundamentalist Christians and to turn them against their lesbian mother. Pamela and her lover were open about their relationship with the children during visitation; when the children returned to the father's home, they were subjected to searching interrogation by their step-mother. A majority of the court concluded that all the parents bore some fault as "protagonists of antithetical lifestyles." Both parties presented expert witnesses. The trial court found Pamela's expert not credible and placed great reliance on Dean's expert. The Supreme Court concluded that Dean's expert's "categorical bias against homosexuality, compounded by truncated professional experience, necessarily relegate his views to the dubious stature reserved by the district court for the opinions of Pamela's experts." Nonetheless, the majority concluded that there remained substantial evidence on the record supporting the trial court's decision to narrowly restrict Pamela's visitation rights. While finding that the district court "indulged an essentially personal viewpoint in derogation of Pamela's lifestyle." Given this, it is surprising to read in Justice Taylor's opinion that "there cannot be found, in the district court's improvident expression of personal views on homosexuality, indices of malice or prejudice sufficient to cast doubt upon that court's capacity to remain `open to the conviction which evidence might produce.'" Taylor insisted that the restrictions imposed by the district court were in the best interest of the children, and blasted both parties, chiding Dean and Christine for trying to impose Christian fundamentalist views and chiding Pamela for trying to impose gay liberationist views on the children. "It was reasonable for the district court to conclude that limiting Pamela's visitation with the children would limit the damage done by mutual parental insistence upon use of the children as weapons in an acrimonious contest between lifestyles. Although we cannot condone the district court's indulgence of a personal viewpoint, we likewise cannot reverse a discretionary decision which is reasonable and benefits from substantial support in the record." Taylor noted that the district court had eased some of the restrictions on visitation subsequent to issuing its initial order in the case. Chief Justice Golden dissented in an opinion joined by Justice Guthrie, saying, "the majority concludes that the district court erred in basing its decision to restrict the mother's visitation on the mother's lifestyle. I agree with that majority conclusion; I would go further, however, and hold that the district court's expression of personal views on this subject casts sufficient doubt upon that court's capacity to remain `open to the conviction which the evidence might produce' that the district court's decision must be reversed and this matter remanded for a new trial presided over by a judge who does not hold such views." Golden pointed out that Dean's expert witness, upon whom the district court heavily relied, "was not qualified and, moreover, his categorical bias rendered his testimony worthless. Similarly, the categorical bias of the father and Christine rendered their testimony worthless. Without the testimony of these witnesses, the father's case fails." Contrary to the majority, which saw both parents at fault, Golden saw fault only on the father's side. "The record quite clearly reveals that the father and Christine worked long and hard at alienating these children from their mother. They should have been held in contempt for what they have done; instead, they are, despite the spin placed on it by the majority, rewarded for their outrageous behavior." Golden's criticism of the court becomes quite heated: "I find it a strange and unacceptable rule of law that the majority invokes to `limit the damage done by mutual parental insistence upon use of the children as weapons in an acrimonious contest between lifestyles.' In nearly every custody/visitation case this court hears the father and mother have engaged in an acrimonious contest. But the court abandons its responsibility for reasoned and informed decision-making when it arbitrarily without reason chooses one side over the other simply to put a stop to the battle. In the majority's rush to end the battle, in the name of serving the children's best interests, it has forgotten one of the most important interests these children have: to know their mother and develop a loving and caring relationship with her." Justice Golden then quoted at length from Pamela's expert's testimony, showing that the restrictions imposed by the court would severely interfere with the development of such a relationship, and concluded, "Enough said." A.S.L. Lambda Files Cert. Petition in Anti-Gay Employment Contract Case On Dec. 7, Lambda Legal Defense and Education Fund filed a petition for a writ of certiorari in the U.S. Supreme Court, seeking to overturn lower court decisions that hold a gay accountant liable for more than $100,000 because of his sexual orientation. Miller v. DeMuth, No. 95-895, decision below: 665 A.2d 469 Pa. 1995). In 1985, the Respondent, Donald DeMuth, hired the Petitioner, Daniel Miller, a Certified Public Accountant, to work full time for his management consulting firm. The employment contract provided, in relevant part, that homosexuality would be cause for termination and, if Miller were terminated for cause and then started a competing firm, he would be required to pay DeMuth a substantial penalty. The contract was renewed every year through 1989 or 1990, after which time Miller continued working for DeMuth while negotiating a new contract. Following a spate of gay-bashings in his hometown, Miller attended a demonstration protesting the violence; in TV coverage of the event, Miller appeared above the caption "Gay Activist." DeMuth then fired Miller for being gay. Miller opened his own accounting practice, taking with him several of DeMuth's clients. DeMuth sued to enforce the penalty clause, and won a judgment of more than $100,000. A divided Superior Court upheld the ruling (of the three justices, one decided that enforcing the penalty was not state action, another found that it was legitimate state action, and the third found that it was constitutionally impermissible state action), and the Pennsylvania Supreme Court declined review. The issue raised in the petition is "[w]hether constitutional principles of equal protection permit the use of state action to subject Petitioner to a substantial financial penalty because he is gay, thereby giving effect to respondent's personal discriminatory animus." It was undisputed that DeMuth fired Miller solely because Miller is gay (anti-gay employment discrimination is legal in the relevant parts of Pennsylvania), and that, but for the fact that Miller is gay, his termination would not have invoked the penalty clause on which DeMuth sued. The petition quotes Palmore v. Sidoti, 466 U.S. 429, 433-34 (1984), "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." The petition argues that judicial enforcement of the anti-gay penalty clause would constitute state action impermissibly abetting private invidious discrimination. Implicitly addressing the Court's extremely selective docket control, the petition argues that this case presents increasingly litigated issues, citing several recent cases including the Colorado Amendment 2 case, Evans v. Romer, 882 P.2d 1335 (Colo. 1994), in which a Supreme Court decision is expected soon. The petition argues that this case presents the issue of anti-gay discrimination with rare clarity, with no disputes over material facts or countervailing state interests. More broadly, this case asks whether anti-gay discrimination is to be treated like other forms of invidious discrimination. In the context of race discrimination, it is well established that a discriminatory contract like the one at issue cannot be enforced. See Shelley v. Kraemer, 334 U.S. 1 (1948) (racially restrictive private covenants unenforceable on equal protection grounds). The petition points out that even non-racial discrimination is subjected to at least rational basis review. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973). As in Evans v. Romer, the stakes are high in terms of the possible effect on the rights of gay and lesbian Americans. A favorable ruling could signal that state-sponsored anti-gay discrimination will be treated like other forms of invidious discrimination, but an unfavorable ruling might legitimate governmental anti-gay discrimination nationwide. O.R.D. Another Challenge to Military Policy Is Rejected Each month we have a new case that proves that the military's "don't ask, don't tell" policy is no better for the lesbian and gay community than the military's old policy. Richard F. Richenberg was a Captain in the Air Force. In May, 1993, Richenberg informed his superior officer that he was homosexual. As a result of his statements, the Air Force initiated a discharge proceeding against Richenberg. A Board of Inquiry recommended his discharge on December 2, 1993, however, the Secretary of Defense directed that the discharge be reconsidered under the "don't ask, don't tell" policy recently enacted by Congress. Discharge proceedings were initiated again in April, 1994. At the hearing, Richenberg read a sworn statement that he had not in the past and would not in the future engage in any prohibited conduct. Despite his statement, the Board of Inquiry recommended his discharge, which was scheduled for September 8, 1995. On September 5, 1995, Richenberg filed for and obtained a temporary restraining order barring the Air Force from discharging him. An expedited hearing was scheduled. Richenberg challenged the policy on several constitutional grounds including: first amendment; equal protection; due process; and right to privacy. Judge Strom of the United States District Court for the District of Nebraska rejected all of his arguments, indicating our long history of giving deference to military judgment. Most of these arguments have been made in previous cases and failed as well. Richenberg's case is particularly interesting, though, because under the current policy there is supposed to be a rebuttable presumption that if you are homosexual then you have or will engage in homosexual acts, but Richenberg gave a sworn statement that he had not and would not engage in such acts and no evidence was introduced to challenge the statement. This issue is only given cursory review in the court's decision. The court indicated that seven service members had previously been successful at rebutting this presumption, but without citing cases or giving a standard for rebutting the presumption. Judge Strom simply indicated that these issues are decided on an individual basis and the court is going to follow the finding of the Board of Inquiry. Richenberg v. Perry, 1995 WL 736836 (Dec. 11). This leaves open for discussion what the standard actually is for rebutting the presumption that if you are homosexual you engage in homosexual acts. T.V.L. Oral argument on Able v. U.S. in the 2nd Circuit was postponed due to the recusal of Circuit Judge Guido Calabresi from the assigned panel on the eve of argument. The Justice Department had sent a letter to the court pointing out that Calabresi, while dean of Yale Law School, had signed a letter to the Senate Military Affairs Committee opposing the ban on military service. Although the Department did not formally request that Calabresi withdraw from the case, the letter led to his voluntary recusal and argument was postponed for appointment of a new panel. (Presumably Calabresi would also recuse himself from potential en banc reconsideration of any panel decision in the Circuit, as well.) New York Times, Dec. 20. * * * The 4th Circuit heard oral argument on Paul Thomasson's challenge to the ban on Dec. 5. All 13 full-time judges of the Circuit participated in the en banc hearing, the case having been referred by a three-judge panel without issuing a decision. A few days before the hearing, the court issued an order in the pending case of Dirk Selland, upholding a stay against Selland's discharge until his appeals are resolved. Both Thomasson and Selland are challenging the constitutionality of the "don't ask, don't tell" policy. * * * The 9th Circuit heard oral argument in Margarethe Cammermeyer's case on Dec. 4. Cammermeyer was discharged under the pre-Clinton version of the gay ban; she was ordered reinstated in 1994 by U.S. District Judge Thomas Zilly. The government is no longer seeking Cammermeyer's discharge under the old policy, but asked the 9th Circuit to vacate Zilly's decision on the merits so it won't affect future decision on the "don't ask, don't tell" policy. "Forgive me if I am not moved. . ." said Circuit Judge Alex Kosinski in response to that argument, according to a Dec. 5 report in the Seattle Times. A.S.L. Federal Court Finds Constitutional Violation in Removal of Lesbian Novel From High School Libraries In a reaffirmation of the right of high school students to access a diversity of ideas, a Kansas federal district court, in Case v. Unified School District No. 233, 1995 WL 708288 (Nov. 29), held that a school board's removal of Annie on My Mind, an award-winning book about a romantic relationship between two teenage girls, from the district's libraries violated the First Amendment and its analogue in the Kansas constitution. Accompanied by substantial publicity, Project 21 (since renamed the P.E.R.S.O.N. project) donated several copies of the book, along with copies of All American Boys, a similar story involving teenage boys, to the Kansas City-area school district for placement in the district's high school libraries. Ironically, the libraries already had a number of copies of Annie. All of the district's high school librarians agreed that Annie had literary merit, but that Boys did not. A school official then wrote Project 21, accepting Annie but declining Boys. The school district's superintendent then intervened and unilaterally determined that all of the district's copies of Annie, including those previously present, would be removed. Subsequently, the school board ratified the superintendent's action at a public meeting, and several current and former district students, their parents, and a district teacher commenced this litigation. Initially, the court made significant standing determinations. While the current high school students, their parents, and the high school teacher had standing, the former high school students, and a student who was in grade school when Annie was removed, did not, the court held, as neither had had access to the high school libraries at the time of the book's removal. Turning to the merits, the court adopted the holding of the plurality opinion in Board of Education v. Pico, 457 U.S.853 (1982), as this was the only Supreme Court opinion specifically addressing the removal of books from a public school library. That opinion declared that school officials' conduct was unconstitutional if the officials intended to deny students access to ideas with which the officials disagreed, and if this was the decisive factor in the officials' decision. The court found the board's action invalid under this rule, as the four board members voting to support the removal of Annie stated that they had done so because the book "glorified and promoted" homosexuality. In making this assessment, the court looked behind the board members' invocation of "educational unsuitability," which the court found to represent nothing more than viewpoint discrimination. The court also deemed it important that the board disregarded its own established procedures for reviewing the suitability of library books, and that the board failed to consider less restrictive alternatives to the complete removal of the book. Rejecting the board's claims in defense, the court held that the board did not have unfettered discretion to "transmit community values," while the book's availability in other libraries in the area did not cure the constitutional violation. Also rejecting the plaintiffs' secondary claims, the court found no due process violation, as the plaintiffs had no liberty or property interest in the book's presence in the library, and the holding of an open school board meeting had provided the plaintiffs with procedural due process. R.M. Federal Court Rejects Emotional Distress Claims by Discharged Gay Grocer U.S. District Judge Lungstrum dismissed charges brought by a discharged gay grocer in Wagner v. Hy-Vee Food Stores, Inc., 1995 WL 716788 (D.Kans., Nov. 16). William Wagner, age 48, was hired to be manager of the Seafood/Service Meat Department at defendant's Leawood, Kansas, store in 1989. In July 1993, Scott Thompson, the director of the store, discovered that Wagner was "having a homosexual relationship" with a young Hy-Vee employee who was accused of embezzlement from the company. Wagner alleges that this discovery led to a period of abusive and homophobic conduct toward him by Thompson that was so severe it led to various physical symptoms and hospitalization of Wagner. Subsequently, in May of 1994, Wagner was discharged after an incident when he was accused of being drunk and attempting to steal items from another Hy-Vee store in Overland Park, Kansas, where his male roommate was employed. Wagner's subsequent lawsuit alleged age discrimination, retaliation, intentional infliction of emotional distress, breach of contract, and wrongful discharge in violation of public policy. Granting the defendant's motion for summary judgment, Judge Lungstrum noted that Wagner had been replaced by an older person, so a prima facie case of age discrimination could not be plausibly made out. Wagner had claimed that Thompson's abusive conduct toward him was undertaken in retaliation for his having a homosexual relationship with another employee. "Associating with an embezzler is not a protected activity," asserted Lungstrum. "The plaintiff does not allege that he undertook any other protected activity prior to his termination. As a result, the plaintiff cannot establish any of the elements of his prima facie case." Similarly, Lungstrum found that Wagner's factual allegations were insufficient to make out a prima facie case for intentional infliction of emotional distress, finding that Thompson's conduct was "only inappropriate, not illegal." (Of course, Lungstrum included the usual disclaimer one finds in cases where judges refuse to protect gay litigants from abuse: "The court certainly does not condone impolite or inconsiderate behavior.") Finally, the court observed that Wagner had failed to show any express or implied contract terms or public policies that were violated by his discharged, so the other common law claims were also dismissed. A.S.L. Louisiana Appeals Court Approves Safety Injunction Against Gay Bathhouse At issue in the defendants' appeal in City of New Orleans v. Benson, 1995 WL 707895 (La.App., 4th Cir., Nov. 30), was whether the Civil District Court for the Parish of Orleans had acted properly in granting a preliminary injunction to the City enjoining the continued operation a substantial portion of a New Orleans gay bathhouse, without the requirement of a bond. The Court of Appeal affirmed the lower court decision in all respects. The City sought to close the premises down after a fire inspector found twenty building and fire code violations. A separate civil proceeding relating to the violations was instituted against the owners of the premises in New Orleans Municipal Court. The inspection had taken place after firemen responded to a New Year's Day fire alarm in the premises. After considerable legal maneuvering over a six month period, the preliminary injunction was granted, requiring that the top three floors of the building, where numerous cubicles were located, be closed. The Court of Appeal brushed aside the appellants' challenge to subject matter jurisdiction, making specific references in the record to the dangerous conditions found to exist in the upper floors of the premises, and ruled that the City's actions were entirely prudent in light of these conditions. The court then rejected the claims of double jeopardy, which were based on the parallel proceedings in Municipal Court, noting that neither proceeding was criminal in nature, as the injunction sought was remedial, not punitive, in furtherance of the City's obligation to protect public health and safety. The claim of cruel and unusual punishment was likewise rejected, as this was not a forfeiture proceeding, but was intended to protect the public from danger of fire. It appears clear from the decision that all that needed to be done to get the preliminary injunction lifted was the correction of these numerous and serious code violations. The challenge to the preliminary injunction for failure to require security was likewise rebuffed, as the Court found that the need for posting of security by public entities in such judicial proceedings was dispensed with by state law. S.K. 2nd Circuit Upholds Sentence Enhancement for KKK Leader Who Previously Entered Nolo Plea in Gay-Bashing Incident In a decision announced Oct. 16 and amended Dec. 27, the U.S. Court of Appeals for the 2nd Circuit affirmed a decision by the District Court in Connecticut to enhance the sentence imposed on a Ku Klux Klan leader convicted on unlawful firearms possession, based on his prior nolo contendere plea to a Connecticut gay-bashing charge. U.S. v. Palmer, 1995 WL 760936. Scott Palmer was arrested on Sept. 5, 1993, after making anti-gay remarks and non-fatally assaulting a gay man at Choices Cafe in Wallingford, Connecticut. Palmer was charged with a violation of Conn. Gen. Stat. sec. 53a-181b, the state's ethnic intimidation law, which, inter alia, bans "intimidation based on bigotry or bias" and includes "sexual orientation" among enumerated categories of hate crime targets. Palmer pled no contest and was given a four-year suspended sentence, three years probation, and a $1,200 fine. Shortly thereafter, Palmer told a federal undercover witness that he intended to retain possession of a semiautomatic pistol he owned, even though he knew this would violate his probation. Palmer was then convicted on a federal firearms charge, based on this conversation. At sentencing, the trial court determined that his plea on the Connecticut charges involved a "crime of violence" sufficient to serve as the basis for sentence enhancement, and ordered 63 months of incarceration, a $7,500 fine, three years of supervised release, and a $100 special assessment. In appealing the sentence, Palmer argued that the Connecticut offense could not serve as a crime of violence for enhancement purposes, because he had pled no contest to the official charge, which paraphrased the statute and did not specifically identify any violent act on his part. Although the 2nd Circuit disagreed with the District Court's rationale for treating the state crime as a crime of violence, it agreed with the result, concluding that it was appropriate in this kind of case for the trial court to have consulted a presentencing report which gave a detailed description of the Connecticut offense. A.S.L. Gay Male Plaintiffs Drop Challenge to Florida Adoption Ban; Lesbian Plaintiff Picks Up the Ball James W. Cox and Rodney M. Jackman, the gay male couple who were challenging Florida's ban against adoptions of children by gays, decided on December 1 to abandon their lawsuit. In April, the Florida Supreme Court had revived their case, Cox v. Florida Department of Health & Rehabilitative Services, 656 So.2d 902, after it was lost before a division of the state's intermediate appellate court. One of the factors leading to their decision was that the two men had separated since commencing the case. Kim Tucker, general counsel of the defendant Department, pointed out that their separation would have become an issue in the retrial, according to comments published Dec. 15 in the Miami Herald. "We would have been arguing that the state has a rational basis for a law prohibiting adoptions by homosexuals, and as part of that we would have looked at how stable a relationship like this is," said Tucker. But the fight against the ban is not over. Another case, brought by June Amer, a lesbian, in Broward County, had been on hold until Cox was resolved, but now will move forward. Amer's co-counsel, Nova Southeastern University law professor Bill Adams, told the Sun Sentinel on Dec. 18 that Amer "is tired of waiting. To know she can proceed with her suit will make her very happy." Adams said he would try to get a spring trial date. Her other co-counsel is Florida Civil Liberties Union legal director Andy Kayton. A.S.L. Sexual Orientation Discrimination Claim Survives Summary Judgment Motion Acting Justice Stuart Cohen of New York Supreme Court, New York County, denied pending summary judgment motions in Degen v. New York Stock Exchange, Inc., NYLJ, 12/26/95, p. 29. Plaintiff Peter Degen claims he was terminated from his position as a supervisor at a trading post at the Exchange due to his sexual orientation. Degen, a 24-year veteran at the Exchange, alleged that he had always received excellent and outstanding reviews and been well- treated at the exchange until he came out; then his ratings took a nose-dive, he suffered from blatant harassment on the job, and, Degen alleged, his superiors misled him about their intentions with respect to the development of a trading game he had developed, resulting in a pretextual discharge for conflict of interest. Degen alleged causes of action under the New York City and State Human Rights Laws, common law claims, and constitutional claims. Holding that the Stock Exchange is not a state actor, Cohen granted summary judgment on the constitutional claims, and also dismissed a common law misrepresentation claim and an estoppel claim (based on the Exchange's published non-discrimination policy) as an improper attempt to circumvent New York's employment-at-will rule. Cohen also dismissed the State Human Rights claim, noting that the state law doesn't cover sexual orientation discrimination. However, Cohen refused to dismiss the City ordinance claim, even though Degen was a few days late in filing a notification of suit with the City Human Rights Commission, finding that other courts had not treated such noncompliance as fatal. Cohen also ruled that Degen may pursue his claim for intentional infliction of emotional distress, based not on the manner of his discharge but rather on the harassment he suffered on the job after coming out. Cohen rejected Degen's attempt to win a cross-motion for summary judgment based on the findings of an unemployment insurance judge, noting that by statute such findings are to have no effect outside the unemployment forum. A.S.L. Topeka Artist To Challenge Solicitation Ordinance A gay artist convicted Dec. 7 of violating a Topeka, Kansas, solicitation ordinance will challenge the constitutionality of the law on appeal, according to the Topeka Capital-Journal, Dec. 8. Max Movsovitz was sitting in his car in Gage Park when a plainclothes police officer pulled his car next to Movsovitz's and engaged him in conversation. The police officer, Tom Pfortmiller, suggested oral sex. When Movsovitz agreed, he was arrested by Pfortmiller for soliciting an unlawful act. (Oral sex between persons of the same sex is a crime in Kansas.) Movsovitz was convicted by Municipal Court Judge Joseph Cox, who fined him $100 and ordered him to stay out of Gage Park for two years. Topeka attorney John Ambrosio, representing Movsovitz, announced he would appeal the case to Shawnee County District Court, arguing equal protection grounds since a similar solicitation between a man and a woman would not violate the statute. The ACLU has agreed to assist with the case. (It is worth noting that this is the type of factual setting that gave rise to the successful challenge of the Kentucky sodomy law.) A.S.L. Oregon Appeals Court Continues to Reject Pre-Election Challenges to Anti-Gay Referenda The Oregon Court of Appeals has refused to invalidate an anti-gay initiative election that was held in Lake County, Oregon, in 1994, holding firmly to the principle that pre-election challenges to publicly-initiated measures are not permitted under Oregon law, regardless of the substantive constitutionality or unconstitutionality of the proposition. Kinney v. O'Connor, 138 Or.App. 255, 1995 WL 739411 (Dec. 13). The initiative proposed to enact a county ordinance that would bar the county from creating classifications based on homosexuality or spending public funds in a manner expressing approval of homosexuality. Oregon courts have consistently taken the position that the constitutional merits of a proposed measure will only be addressed in post-election litigation. This action sought a declaratory judgment in advance of election and thus the court found it was properly dismissed, even though by the time the matter got to the court of appeals the election had been held and the initiative approved by the voters. The Oregon legislature passed a law, ORS 659.165(1), which makes such measures unenforceable as a matter of state law, but the court held that this statute did not preclude holding the initiative vote. A.S.L. Domestic Partnership & Marriage Notes For the first time, a state-level governmental body has endorsed same-sex marriage. On Dec. 8, Hawaii's Commission on Sexual Orientation voted 5-2 to approve a report recommending that the legislature amend the marriage law to allow same-sex couples to marry; the report also endorses, as a fallback position, a domestic partnership law that would grant all state law marriage rights (while trying to avoid federalism and full faith and credit issues by not calling the resulting relationship a marriage). On Dec. 22, a Honolulu judge dismissed a petition filed by one of the dissenting members of the Commission who was attempting to have the report discredited. Copies of the report will be available upon publication from the Legislative References Bureau, which can be contacted by calling 808-587-0662 or writing to the Bureau at the State Capitol, 415 S. Beretania St., Honolulu, HI 96813. The initial printing of the report will be distributed free upon request. Despite earlier expressions of support for an application for a marriage license from a gay male couple, Toshav and Phillip Storrs, Ithaca, N.Y., city officials bowed to the opinion of City Attorney Charles J. Guttman that the city clerk could not issue such a license. New York Times, Dec. 4. Guttman relied on a response to his inquiry to the New York State Health Department, which oversees the marriage license process, and his own reading of the New York Court of Appeals' recent decision in Matter of Jacob, which Guttman believed signalled that the court was not yet ready to take on the issue of same-sex marriage. The Storrs couple indicated that they might file a lawsuit. The city had been discouraged from issuing a license by Lambda Legal Defense Fund and Empire State Pride Agenda (the state's lesbian and gay political action group); both organizations argued that a legal battle for same-sex marriage in New York was premature, and urged community and political organizing in anticipation of an expected court victory in Hawaii in Baehr v. Lewin. The Ethics Committee of the U.S. House of Representatives will set up a domestic partnership registration system for members of the House of Representatives and their staffs. This is necessary to implement the House's new Rule 52, which prohibits House members and staffers from accepting gifts under most circumstances, but exempts gifts from family members, relatives and close friends. Recognizing a potential unfairness, the Committee will expand the exemption to include "significant others." Washington Blade, Dec. 22. The Virginia Housing and Development Authority, following the expressed wishes of Governor George Allen, has taken a preliminary vote to reverse a decision from last year and end a policy of recognizing domestic partners for eligibility for joint loans as first-time home buyers. Only one member dissented. A final vote is expected in January. Gov. Allen appointed several new members to the Authority after last year's decision, of which he was sharply critical. Washington Blade, Dec. 22. Backing away from a campaign pledge, Boston Mayor Thomas M. Menino refused to support pending city council legislation that would extend health benefits to domestic partners of city employees. Menino's corporation counsel, Merita Hopkins, told a council committee that the proposal would conflict with a state law defining benefits eligibility for city employees. (A similar argument was used by courts to invalidate domestic partnership benefits ordinances in Minneapolis and Atlanta.) Menino pledged to seek a home-rule measure from the state legislature that would allow the city to move forward on the issue. The large midtown Manhattan law firm of Dewey Ballantine announced in a year-end memo to staff that it will extend employee benefits plan eligibility to same-sex domestic partners of staff members. A barrier to domestic partnership benefits for private sector employees in Pennsylvania was overcome when the state's Insurance Department issued a ruling effective Oct. 13 amending regulations to include domestic partners within the definition of "dependents" and "eligible dependents" used by insurance companies selling coverage in the state. The ruling, No. 15-P-94, came on an application for permission to sell such coverage by Independence Blue Cross and Pennsylvania Blue Shield. The city of Palo Alto, California, has approved establishment of a domestic partnership registry for unmarried couples. The only dissenting vote came from a council member who was opposed to letting opposite-sex couples register, since they have the option of marriage to formalize their relationships. Washington Blade, Dec. 22. * * * On Dec. 19, the Los Angeles County Board of Supervisors voted 4-1 to extend health insurance benefits to domestic partners of county employees. The city of Los Angeles, which is within the county, has had such a policy for several years, and many large entertainment industry companies headquartered in the county have similar policies. Los angeles Times, Dec. 20. A.S.L. Law & Society Notes Backers say that two anti-gay initiatives they hoped to propose to the Washington state legislature in 1996 are unlikely to gather the necessary signatures. "I don't think it's likely" that a measure to outlaw civil rights protection for gay men and lesbians will get enough signatures, said Cathy Mickels, president of the state chapter of the Eagle Forum. And Sam Woodard, head of the Citizens Alliance of Washington, proponent of a measure to forbid adoptions by gay or lesbian prospective parents, said that "We're not going to make it." R.M. The California Supreme Court approved a new ethical code for judges that includes a ban on joining organizations that discriminate against gay men or lesbians, but exempts the military and the Boy Scouts. The proposal was the subject of much controversy within the state's judiciary, with judges initially rejecting an unamended proposal that did not include the military and scouts exemptions. R.M. & A.L. A group of about 15 students at East High in Salt Lake City is petitioning for recognition of the state's first GLB students' club, while the state attorney general's office prepares an opinion on whether the club must be permitted. Under the federal Equal Access Act, passed in 1984 at the behest of religious groups, in order for a school permitting any extra-curricular clubs to receive federal funding, the school may not "deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of religious, political, philosophical, or other content of the speech at such meetings." R.M. The school board in Arlington, Virginia, voted unanimously on December 7 to add "sexual orientation" to the school system's non- discrimination policy, extending protection to 3,400 teachers and support staff. Washington Blade, Dec. 22. A.S.L. Hearings by the House Education Subcommittee on Dec. 4-5 produced a pleasant surprise for worried gay activists. Instead of a prolonged bashing of public schools for being "pro-gay," the hearings turned out to be rather mild, as they showed considerable reluctance by congressional conservatives to get involved with the curricular decisions of local school boards. Former U.S. Secretary of Education William Bennett, no friend of the gay community, surprised activists by testifying against federal legislation that would deny funding to school districts based on curricular decisions about homosexuality. Washington Blade, Dec. 8. A.S.L. The weekly newspaper Legal Times published an article by Keith Donoghue titled "After Reno Ruling, More Gays Win Asylum" on Nov. 6. Donoghue reported that a recent decision by Attorney General Janet Reno to order publication of Matter of Toboso-Alfonso as a precedent had significantly eased the burden of lesbian and gay aliens seeking asylum in the United States. The article reviewed several of the pending cases, and noted the role of U.S. Rep. Barney Frank in getting Reno to approve the publication. A.S.L. The Union of American Hebrew Congregations, the federation of reform synagogues, passed a resolution at its recent convention in Atlanta stating that a rabbi's sexual orientation should have no bearing on a hiring decision. The reform movement's seminary has been admitting openly gay students since the late 1980s, and the Central Conference of American Rabbis began to admit openly gay seminary graduates to membership in 1990. There are 850 member synagogues in the UAHC, comprising about 1.5 million members. Akron Beacon Journal, Dec. 2. * * * At the other end of the scale is the Episcopal Church, which is scheduled to begin a heresy trial in Chicago on Jan. 3-5 directed against retired Bishop Walter C. Righter, on charges that Righter ordained a gay man in 1990 in violation of church teachings. Righter is retired; other active Bishops have also ordained gay candidates, so the proceeding against Righter is widely seen as a test case that may lead to a purge of other gay-friendly church leaders if it succeeds. This is reportedly only the second heresy trial in the 206 year history of the Episcopal Church in the United States. A.S.L. A controversy flared up in Byron Center, Michigan, when high school teacher Gerry Crane responded to questions from students on Nov. 20 about a wedding ring he was wearing by revealing that he is gay and had married his lover. The whole town took sides over whether he should be discharged, with the school board holding a special public meeting attended by more than 500 people. The school board deliberated in private, then moved to public session where it released the text of a resolution it had adopted unanimously, stating: "The board firmly believes that homosexuality violates the dominant moral standard of the district's community. Individuals who espouse homosexuality do not constitute proper role models as teachers for students in this district." But, following the advice of their legal counsel, the board did not discharge Crane, saying it would continue to "investigate and monitor the current circumstance and controversy and will take prompt and appropriate lawful action when justified." Crane, who interpreted the board's resolution as meaning he was on a sort of probation regarding his classroom conduct, described the resolution as "offensive." Many students rallied in support of the popular teacher, threatening to quit the school band if he was no longer the director. Detroit Free Press, Dec. 20. A.S.L. Putnam County, New York, Family Court Judge John W. Sweeney, Jr., granted an adoption petition by Gail Messina to adopt Dana, the biological child of her lesbian partner, on Dec. 21. Dana's adoption was one of those involved in the New York Court of Appeal's historic decision in Matter of Jacob reported last month in Law Notes. Sweeney was the same judge who had originally denied the adoption on the ground that New York law did not authorize it. Messina was represented by Lambda Legal Defense Fund Legal Director Beatrice Dohrn in her appeal of that decision. A.S.L. International Notes Britain's Law Commission has proposed decriminalizing consensual S&M sex. The proposal came a day after the European Court of Human Rights agreed to review a case of three gay Britons who were imprisoned for engaging in such activity. According to a Reuters report, "Colin Laskey, Roland Jaggard and Antony Brown belonged to a group that practiced genital maltreatment, ritual beatings and branding -- all with each other's consent. They were sent to prison in 1990 for sentences ranging up to 4 1/2 years. The participants caused no permanent harm and said the conviction interfered with their right to privacy." The Associated Press reported that the African National Congress, the ruling party in South Africa, has proposed allowing openly lesbian and gay people to serve in that country's armed forces. The ANC stated that military policy should be in accord with the new constitution, which bans discrimination on the basis of sexual orientation. New Orleans Times Picayune, Nov. 30. The European Court of Justice's advocate-general has released an interim report supporting the discrimination claim of a British school worker who was discharged after undergoing sex reassignment surgery. According to a Dec. 15 report in Financial Times, the full court normally follows the lead of its advocate-general, who opined that the anonymous applicant's discharge would be a breach of the 1976 European Equal Opportunities Directive, "which guarantees men and women equal treatment at work," according to the Financial Times story. The newspaper speculated that an affirmative decision by the full court would put renewed pressure on Great Britain to end its ban on military service by gays. Australian gay rights advocates celebrated the appointment of Michael Kirby, currently President of the New South Wales Court of Appeal, to a seat on the High Court of Australia, the highest appellate court in the country. (Appeals can be taken to the House of Lords in London from this court.) Kirby is Australia's foremost judicial proponent of lesbian and gay rights, and is also the author of numerous articles on civil rights and AIDS, and has been an activist among the various British Commonwealth countries for the establishment of sound AIDS policies. In a news item on the appointment in the Dec. 14 Sydney Morning Herald, he is described as "a 56-year-old bachelor and workaholic." A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS 4th Circuit Rebuffs HMO on AIDS Claims The U.S. Court of Appeals for the 4th Circuit vacated a district court finding concerning the lawfulness under ERISA of an HMO's denial of benefits to a person with AIDS. Bernstein v. CapitalCare, Inc., 1995 WL 708459 (Dec. 4). When Jeffrey Bernstein sought benefits from his HMO, CapitalCare, for a hospitalization outside of the HMO's "service area," the HMO denied his claim on the basis of its Enrollment Agreement, which excluded coverage for expenses that could reasonably have been foreseen before Bernstein left the service area. Bernstein died shortly thereafter, and his personal representative filed a declaratory judgment action seeking a determination that the expenses for Bernstein's hospitalization were covered under the CapitalCare plan. On cross-motions for summary judgment, the district court ruled that Bernstein's hospitalization was reasonably foreseeable because he was in the end stages of AIDS. The 4th Circuit was not so easily convinced; its written opinion skillfully connects the pieces of the puzzle without falling prey to misconceptions about AIDS. Since CapitalCare both administered and insured the plan, its decision to deny coverage was reviewable under ERISA's "abuse of discretion" standard; thus, CapitalCare had to establish the reasonableness of its decision by showing that it was based on a deliberate, principled reasoning process, and that it was supported by substantial evidence. CapitalCare's administrative record of Bernstein's claim did not meet this standard, held the court. The administrative record was sparse, containing only logs of phone calls, one memorandum concerning Bernstein's hospital admission, and notes concerning a prior hospitalization. Only one physician, a pediatrician without any training in AIDS, participated in the coverage determination. The court was also leery of the district court's knee-jerk endorsement of the HMO's position that because Bernstein had AIDS, it was reasonably foreseeable that he would need care, noting that "the foreseeability of a particular illness depends on myriad factors. . ." The court vacated the district court's findings and remanded the case to the HMO plan administrator for a new determination. The court did not reach the issue of whether the HMO had violated ERISA requirements regarding notice to participants of a denial of benefits. D.W. California Court of Appeal Rejects AIDS Phobia Claim A unanimous panel of the California Court of Appeal, First District, reversed a Superior Court ruling and ordered summary judgment for the defendant in an AIDS phobia case. Macy's California, Inc. v. Superior Court, 1995 WL 757775 (Dec. 26). Plaintiff Catherine Tussy-Garber was trying on a jacket at Macy's Fairfield, California, store, when she allegedly pricked her finger on a hypodermic needle that somebody had left in the pocket. The pocket actually contained two hypodermic needles, a knife and a metal pipe "possibly used for ingesting cocaine." She developed severe emotional distress as a result of the incident, although she has tested negative for all possible infections, including HIV. Macy's refused to help her find the prior customer who had returned the jacket to determine if that person had AIDS, refused to assist her in having the needle tested, and refused to pay for the treatment costs she has sustained. The opinion by Judge Chin quotes Tussy-Garber's detailed interrogatory recitation of her emotional distress symptoms, which sound quite severe. The Superior Court had refused to grant Macy's motion for summary judgment, holding that since Tussy-Garber allegedly suffered an actual injury (the needlestick wound), she was entitled to claim compensation for emotional damages stemming from the incident. Disagreeing, the court of appeal offered an extensive analysis based on the California Supreme Court's 1993 decision in Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 -- a precedent upon which the Court of Appeal had relied when it denied recovery in another AIDS phobia case where the plaintiff could not plausibly allege actual exposure to HIV: Kerins v. Hartley, 27 Cal.App.4th 1062 (1994). Admitting that the two cases were distinguishable, in that Tussy-Garber suffered an actual needlestick injury, while Kerins had merely been a patient of an HIV+ surgeon, nonetheless Chin concluded that the claim should be dismissed because the needlestick injury, standing alone, struck him as an insufficient injury to provide the basis for parasitic emotional distress claims. As far as this court was concerned, a simple needlestick injury is not adequate "harm" to support such an action, even where the resulting emotional distress is severe. (Contrast the decision in Marchica v. L.I. Railroad Co., 31 F.3d 1197 (2nd Cir., 1994), cert. denied, 115 S.Ct. 727 (1995), allowing AIDS phobia recovery to a maintenance worker who sustained a needlestick injury while cleaning up debris at a train station in an area frequented by IV drug users.) A.S.L. Florida Appeals Court Upholds HIV Test for Sexual Assault Defendant Ruling on a constitutional challenge to Fla. Stat. sec. 960.003, which authorizes HIV testing of sexual assault defendants at the request of the victim, and release of the result to the victim and public health authorities, the Florida District Court of Appeal, 4th District, held the statute constitutional. Fosman v. State, 1995 WL 757879 (Dec. 27). Fosman was accused of armed sexual battery involving a rape in which semen was exchanged. The victim requested HIV testing of Fosman pursuant to the statute, which was ordered by the trial court. Fosman appealed. Analogizing from U.S. Supreme Court 4th Amendment cases on drug testing and citing to decisions upholding HIV testing of sexual assault defendants by courts in Illinois, California and Wisconsin, the court concluded that this circumstance "passes the special needs test" recognized by those courts, and quoted the Illinois Supreme Court's decision in People v. Adams, 597 N.E.2d 574 (Ill. 1992), for its rationale. After summarily denying a due process challenge, Judge Klein's opinion for the court takes up Fosman's state constitutional privacy challenge. The Florida courts have been developing an expansive notion of state constitutional privacy in a variety of cases, including a 1987 Florida Supreme Court decision, Rasmussen v. South Florida Blood Services, Inc., 500 So.2d 533, which denied a negligence plaintiff's request to obtain the HIV-status of a blood donor. However, Judge Klein found the cases distinguishable, holding that "there is no reasonable expectation of privacy in regard to having a blood test for HIV, the results of which are disclosed only to the victim and to public health authorities. This case is distinguishable from Rasmussen. . . In Rasmussen the court decided that the benefit of the discovery was outweighed by society's interest in "maintaining a strong volunteer blood supply." Even if petitioner had a reasonable expectation of privacy, society's interest in preventing members of the public from being exposed to HIV would be a sufficiently compelling state interest to justify the infringement of that right. And, the statute does accomplish its objective through the least intrusive means, since blood tests are routine, and disclosure of the results is limited to the victim and public health authorities." A.S.L. Another Court Finds Dentist Guilty of Unlawful Discrimination Joining a growing body of precedent, the U.S. District Court in Maine ruled Dec. 22 that a dentist violated Title III of the Americans With Disabilities Act and the Maine Human Rights Act by refusing to treat an HIV+ patient in his office. Abbott v. Bragdon, No. 94-0273-B. The opinion by Judge Morton B. Brody focused on two issues: whether an asymptomatic HIV+ person has a disability under the ADA, and whether such a person would present a "direct threat of infection" to a dentist. Brody also ruled on a variety of defensive constitutional claims raised by the dentist. Brody noted that the EEOC guidelines make clear that HIV-infection is to be considered a "physical impairment" under ADA, but that there was less unanimity on the second prong of the definitional test: whether asymptomatic HIV-infection, as such, "substantially limits" one or more "major life activities" of the infected person. In the case of the female plaintiff, Sidney Abbott, Brody found credible her assertion that the impact of her HIV-status on her reproductive ability was sufficient to qualify her as a person with a disability under the statute. Noting the growing body of cases so holding, Brody produced a detailed discussion of the issue, concluding that the plaintiff was disabled "as a matter of law." Turning to the more contentious issue of risk to the dentist, Brody found that the defendant had submitted no "Summary Judgment quality evidence" to support his assertion that treating the plaintiff in his office would subject him to significant risk of infection. Brody characterized Dr. Bragdon's evidence as "tangential statistics" and "allegation or speculation." By contrast, Abbott presented testimony by the CDC's Director of the Division of Oral Health, who asserted that "when implemented, the CDC recommendations [for risk reduction] reduce the already low risk of disease transmission in the dental environment, from either patient to dental health care worker, dental health care worker to patient, or patient to patient." Brody specifically rejected Bragdon's attempt to use cases in which courts ruled against HIV-infected health care workers who had charged their institutional employers with violations of the ADA, finding that such cases did not support Bragdon's position because the "health care provider-patient relationship . . . is not symmetrical." The provider can take steps to reduce his risk; the patient, by contrast, "has no control over the less diligent health care provider whose failure to comply with CDC guidelines significantly increases the risk of patient infection." Finally, Brody rejected Bragdon's claims that Congress lacked authority under the Commerce Clause to regulate dental office practices, or that the ADA violated the dentist's due process rights or freedom of contract. (Amusingly, the final section of the opinion addressing the contracts point reads like an elementary primer on the demise of the Lochner precedent.) Abbott v. Bragdon joins D.B. v. Bloom, 896 F.Supp. 166 (D.N.J. 1995), and U.S. v. Morvant, 898 F.Supp. 1157 (E.D.La. 1995), in a growing body of precedent protecting the rights of HIV+ dental patients. Abbott is represented by Augusta, Maine, attorney David G. Webbert and Bennett H. Klein of Gay & Lesbian Advocates & Defenders in Boston. A.S.L. Denial of Specific AIDS Treatment Doesn't Support 8th Amendment Claim by PWA Prisoner An HIV+ inmate who was denied a specific painkiller does not have a cognizable claim under the Eighth Amendment, ruled a federal court on December 1, because prison officials were not "deliberately indifferent" to his medical needs. Writing in the case of Freed v. Horn, 1995 WL 710529 (E.D.Pa.), U.S. District Judge Broderick noted that plaintiff Teddy Freed, an inmate in a Pennsylvania correctional facility, could not meet the burden of showing a dispute over material facts, and thus the defendants were entitled to summary judgment. Freed learned that he was HIV+ in October 1992 while incarcerated at the state prison in Camp Hill. He was first given darvon and fioricet for his headaches. When he was transferred to the prison at Mahanoy in 1994, the medical staff prescribed percocet. In January 1995, a new medical director at the Mahanoy facility reviewed Freed's medical record and "made a medical determination that the plaintiff was not experiencing the degree of pain which would necessitate the use of percocet." Freed's dosage was gradually reduced and he was given the less addictive drug fioricet. Freed asked to be placed on percocet again, and refused the medical staff's offer of HIV therapies such as AZT, DDI and Hivid. Freed was treated for low platelet count and referred to a number of outside physicians. He was placed on percocet when transferred to another prison, and he then brought suit against medical officers and officials of the Camp Hill and Mahanoy facilities, charging violation of his civil rights under 42 U.S.C. 1983. Granting the defendants' motion for summary judgment, the court noted that Freed had failed to meet the standard set out by the Supreme Court in Estelle v. Gamble, 429 U.S. 97 (1976). Under Estelle, "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." However, there is a two-part test: the plaintiff must demonstrate "deliberate indifference on the part of prison officials", and the prisoner's medical needs must be "serious." Inadvertent failure to provide medical care does not suffice under the Estelle standard. Here, noted the court, Freed "presented no evidence" that medical officials at the two prisons were indifferent to his medical condition. The physicians "saw the plaintiff regularly and used their best medical judgment" in reaching the decision that percocet was not warranted. In granting summary judgment to the defendants, the court also dismissed Freed's motion for appointment of an HIV expert as moot. M.N.S. Jury Awards Big Bucks In Transfusion Liability Case A New York City jury awarded $1.5 million in damages to a 16-year old boy who was infected with HIV in a transfusion twelve years ago. The December 19 verdict in DiPaolo v. New York Blood Center (Supreme Ct., N.Y. County) came in the highly publicized case of Joey DiPaolo, who has become a very visible AIDS activist in public speaking engagements and television appearances. However, because the DiPaolo family had previously settled their case against the hospital and doctors involved in the surgery and transfusion for $1.6 million, the Blood Center argued after the verdict that it should not have to pay anything. Roger K. Solymosy, the lawyer for the Blood Center, argued that because the jury had evaluated the total damages for the transfusion incident at $1.5 million and the plaintiffs had already received $1.6 million in their prior settlement, they were not entitled to any more compensation. DiPaolo's lawyer argued that because the jury found the Blood Center 100% responsible for the negligent transfusion, the Blood Center should be fully liable for the jury award. (The jury absolved the doctors and hospital of any liability.) Justice Alice Schlesinger announced that she would hear arguments over whether the Blood Center has to pay anything in January. New York Times, Dec. 20. A.S.L. New York Court Lets Gay Lawyer Sue for Emotional Distress in False- Positive HIV Test Case New York Supreme Court Justice Charles Ramos denied a motion to dismiss a claim by a gay lawyer that New York Hospital and Cornell Medical School should be liable to him for his emotional distress stemming from a false-positive HIV test in a research project. Mullen v. New York Hospital, NYLJ, 12/19/95, p. 27, col.1. Mullen, a partner in the law firm of Pranzo & Mullen, responded to an advertisement in the Village Voice seeking participants in a research project who were part of "high risk groups" for HIV infection. As a gay man whose lover was HIV+, Mullen qualified for the experiment, which involved getting HIV-tested every six months. On entering the program, he signed consent forms warning him that he might suffer psychological distress as a result of receiving HIV test information. The first five times he was tested, Mullen tested negative. He tested positive the next time; a new blood sample was drawn for confirmatory HIV testing and a T-cell test. Ultimately the confirmatory test was negative (as confirmed also when Mullen sought testing from his private physician), and, at least according to Mullen's allegations, the nurse assigned to him in the research program may have badly bungled the notification process. Mullen claims the nurse told him either that a vile of his blood was broken or mixed up with somebody else's sample. Mullen sued for negligent and intentional infliction of emotional distress. Dismissing the intentional infliction claim, Ramos found that the facts alleged by Mullen were not sufficient to constitute the kind of outrageous conduct required for that tort. However, Ramos refused to dismiss the negligent infliction claim. Even though Mullen was not in a patient-physician relationship with the research project, Ramos found that the defendants did have a duty of care to avoid inflicting foreseeable injury on Mullen, and that it was foreseeable that a false positive HIV test could cause emotional distress. In a cursory review of New York law on emotional distress, Ramos concluded that New York has "in limited instances" dispensed with the traditional requirement that an emotional distress claim be tied to an actual physical injury. Ramos's opinion never expressly considers the policy question confronted by the Ohio Supreme Court in Heiner v. Moretuzzo, 652 N.E.2d 664 (Oh. 1995), in which that court recently held that a claim such as this one can't be maintained because the plaintiff was never actually in danger of contracting AIDS as a result of the defendant's alleged negligence, but it seems consistent with the 2nd Circuit's decision in Marchica v. Long Island Railroad, 31 F.3d 1197 (2nd Cir., 1994), cert. denied, 115 S.Ct. 727 (1995), upholding an AIDS-phobia claim where no actual exposure to HIV was established. Ramos dismissed (without prejudice) the nurse as an individual defendant for improper service of process, but then analyzed the statute of limitations issues treating the nurse as a party united in interest with the other defendants, so Mullen may cure this problem with an amended complaint and new service. Ramos also dismissed a claim against the lab that performed the T-cell test (which was reported to Mullen by the nurse as on the low end of normal range; Mullen's own doctor ran a T-cell test that came out higher), on statute of limitations grounds as well as failure to state a claim. A.S.L. Federal Court Certifies Arizona Class Action Against Blood Banks in Transfusion Cases U.S. District Judge Richard Bilby has certified a class action suit for Arizonans who were infected with HIV through transfusions during the period mid-1982 through early 1985 (prior to the licensing of the HIV test), in the pending case of Doe v. United Blood Services et al., Dec. 4. The class action certification goes only to the issues of negligent screening and testing by the defendants, which include United Blood Services, the American Red Cross, the Council of Community Blood Centers, and the American Association of Blood Banks. (Some of these defendants have already lost major lawsuits over their blood screening policies during the period in question.) Bilby denied a request also to certify questions about whether the blood banks gave adequate warning to patients and health-care providers about the risk of HIV transmission, or misrepresented or concealed such information; Bilby also refused to include a claim of conspiracy to control HIV risk information in the class litigation. Arizona Republic, Dec. 17. A.S.L. Minnesota Appeals Court Approves Substantial Upward Departure from Sentencing Guidelines in Sexual Assault by PWA In Perkins v. State, 1995 WL 756698 (Dec. 26), the Minnesota Court of Appeals affirmed a trial judge's decision to sentence the defendant to 30 years in prison, which the court described as a "greater-than-triple durational departure from the sentencing guidelines." The case involves a vicious sexual assault of the female victim, accompanied by death threats and violence which, under the guidelines, would have justified a sentence of 105 to 115 months. The defendant, who was charged with a plethora of serious crimes arising out of the incident, pleaded guilty to one count of first-degree sexual assault. The state's guidelines authorize an upward departure where the victim is treated with particular cruelty. "The sentencing court found particular cruelty because Perkins was infected with the AIDS virus, threatened A.L. with death, choked A.L. to the point of unconsciousness, suffocated A.L. with a pillow, and threatened to kill A.L.'s children. The court said: `I cannot fathom on the face of this earth * * * a more devastating offense to a victim than being sexually assaulted by a person with AIDS * * *. The victim of this offense will not know for several months whether or not she contracted the HIV virus. * * * If she does become HIV-positive, it's a death sentence. It is clear from the record that Perkins knew he had AIDS when he committed the offense.'" Commenting that such an extreme departure upward is justified "only in extremely rare cases where the aggravating circumstances are severe," the court of appeals found that this was such a case, asserting that "the fact that Perkins had AIDS is a severe factor that, coupled with the gratuitous acts of cruelty, warrant the greater-than-triple departure." A.S.L. Air Force Appeals Court Affirms Conviction of HIV+ Officer for Sexual Assault The Air Force Court of Criminal Appeals upheld the conviction and six months plus extended pay forfeiture sentence imposed on Major James T. Goldsmith for a variety of charges arising from his engaging in unprotected vaginal intercourse with two women. U.S. v. Goldsmith, 1995 WL 730266 (Nov. 20). After Goldsmith tested HIV+, he received the standard military preventive medicine order from his superior commissioned officer advising him to refrain from unprotected sexual intercourse, and attended counselling sessions about his duties to warn sexual partners and take protective measures. Nonetheless, Goldsmith subsequently had sex with two different women without revealing his HIV status or using condoms, and responded ambiguously about his HIV status when one of the women inquired. He claimed in his defense that he withdrew before ejaculation in both incidents, and presented expert testimony at his court martial to the effect that the likelihood of transmitting HIV in vaginal intercourse was very low to begin with (1 in 1,000 in a single sexual encounter) and probably lower if the male did not ejaculate in the female partner. The court found that this evidence was not really relevant to the question whether Goldsmith's actions were "likely to produce death or grievous bodily harm." Relying on a previous military case, U.S. v. Johnson, 30 M.J. 53 (C.M.A.), cert. denied, 498 U.S. 919 (1990), the court found that the likelihood of transmission was not crucial so long as there was a theoretical possibility of transmission; what was significant was that serious harm would occur if HIV was transmitted. As summarized by the Johnson court, "in this case, the question is not the statistical probability of HIV invading the victim's body, but rather the likelihood of the virus causing death or serious bodily harm if it invades the victim's body. The probability of infection need only be `more than merely a fanciful, speculative, or remote possibility.'" Thus, the military appeals court concluded that Goldsmith was guilty of aggravated sexual assault. A.S.L. Federal Court Holds Receipt of Disability Benefits Not a Bar to ADA Suit Rejecting decisions such as McNemar v. Disney Stores, 1995 WL 390051, 4 A.D. Cases (BNA) 897, 11 A.D.D. 240 (E.D.Pa. 1995), which held that somebody who qualified for disability benefits was estopped from bringing a disability discrimination charge under the ADA, U.S. District Judge C. Clyde Atkins ruled in Dockery v. North Shore Medical Center, 1995 WL 728172 (S.D.Fla., Dec. 4), that a disability benefits recipient could be a "qualified individual" within the meaning of the law. Atkins opined that it was possible that somebody who was qualified for disability benefits could work if given a reasonable accommodation by the employer: " Thus, a person, totally disabled at one point, may be considered a qualified individual if the allowance of a leave of absence or possible reassignment would provide them the opportunity to resume working at a later date." Atkins did state, however, that an individual who has filed a sworn statement that she is disabled with benefits administrators would have difficulties surviving a summary judgment motion. See BNA Daily Labor Report No. 241, Dec. 15, 1995, A-2. A.S.L. Mason Tenders Union Settles Long-Running AIDS Benefits Suit The Mason Tenders District Council Welfare Fund, defendant in a long-running suit challenging the refusal to cover AIDS-related medical expenses of Fund participants, has agreed to a settlement with the Equal Employment Opportunity Commission that will be submitted to U.S. District Judge John E. Sprizzo for approval. Under the terms of the proposed settlement, which was published in full text in BNA's Daily Labor Report No. 241 on December 15 (see pp. E-10 through E-13), the defendant agrees to pay about $1 million in damages to participants whose benefits claims were denied, and to extend coverage to people with AIDS, both prospectively and retroactively. The lawsuit, EEOC v. Mason Tenders District Council Welfare Fund, No. 93-3865 (S.D.N.Y.), was one of the first to be brought by EEOC in challenging a union benefit funds decision to avoid covering AIDS-related claims by writing an exclusion into their claims policies. A separate private action brought by five individual fund members (Mason Tenders District Council Welfare Fund v. Donaghey, No. 93-1154) was previously settled in August 1995. The payments to those plaintiffs will be included as part of the final settlement amount in the EEOC case. Key to the settlement was Judge Sprizzo's 1993 ruling denying a summary judgment motion, in which he found that the fund was subject to the Americans With Disabilities Act and had the burden of justifying its decision to exclude AIDS-related coverage while continuing to cover other similarly-expensive medical conditions. A.S.L. Statute of Limitations Dispute in Transfusion Case is Reserved for Trial As a result of a blood transfusion, D.B. contracted AIDS during a hospital stay in 1985. In 1993, D.B. filed suit against the hospital and subsequently amended her complaint to include the blood supplier. The suit sought damages resulting from her infection with AIDS. The defendant moved for summary judgment based on the statute of limitations. During discovery, conflicting evidence as to when D.B. had knowledge of her infection was discovered. The earliest date would bar D.B.'s claim under the statute of limitations, while the latest possible date would allow the claim to proceed. Florida District Court of Appeal Judge Schoonover ruled the issue of when D.B. had knowledge of her infection is a genuine issue of material fact that must be tried to the factfinder. The motion for summary judgment was denied. D.B. and J.B. v. CCH-GP, Inc., 1995 WL 722913 (Fla.App. 2 Dist., Dec. 8, 1995). T.V.L. Court Refuses to Dismiss Criminal Charge Against PWA Thomas Murray was charged with leaving the scene of an accident and driving under the influence of drugs. Murray moved to dismiss the indictment in the interest of justice. One of the reasons he cited in support of his motion was that he had AIDS. Justice Abraham G. Gerges of the New York Supreme Court, Kings County, denied his motion. Justice Gerges noted that defendants who are diagnosed with AIDS prior to committing a crime often are unsuccessful in using their illness to support a motion to dismiss in the interests of justice. Justice Gerges noted that to decide otherwise may well encourage the commission of crimes. People v. Murray, 1995 WL 730781 (Nov. 8, 1995). T.V.L. Discrimination Law Protection is Limited Demonstrating the limitations of disability discrimination law to protect persons with AIDS in the workplace, the New York Appellate Division, 2nd Department, dismissed an appeal from a decision by the New York State Division of Human Rights holding that an employer, the New York Seven-Up Bottling Company, had not unlawfully discriminated against Stanley Phillips, a person with AIDS who was discharged by the respondent. Phillips v. Rosa, 1995 WL 752200 (Dec. 18). "There is ample evidence, medical and otherwise, in the hearing record to support the Commissioner's finding that the physical manifestations of the complainant's disability rendered him physically `unable to perform the job duties of any available position' with 7-Up." Disability discrimination law only protects those whose disability does not prevent them from performing their job, so Phillips (who has since died) was out of luck. A.S.L. AIDS Law & Society Notes As 1995 ended, the official count of diagnosed cases of AIDS in the United States since the beginning of the epidemic topped 500,000, with almost 300,000 of those known to have died, according to a year-end report in the San Francisco Examiner, Dec. 27. The Examiner also reported that the World Health Organization had now received reports of about 4,500,000 cases worldwide since the beginning of the epidemic. A day-long White House Conference on AIDS was held early in December, with President Bill Clinton participating for more than two hours to presentations from a variety of workshops on pressing AIDS policy issues. Clinton announced he had asked Vice President Al Gore to convene a meeting on accelerating drug development, and had directed AIDS Research Director Patsy Fleming to oversee an interdepartmental working group intended to coordinate federal AIDS research across departmental lines. Washington Blade, Dec. 8. President Clinton vetoed the National Defense Authorization Act of 1996 on December 28. The bill included a provision mandating the discharge within 60 days of all service members who test HIV+, and disqualifying them for service-related medical benefits after a 30- day "transition" to civilian status. Clinton had previously announced he would veto the bill because of this and other provisions to which he objects. The provision was added to the bill at the instigation of Rep. Bob Dornan of California, a leading homophobe in the House of Representatives. Washington Blade, Dec. 22. The Food & Drug Administration is reportedly about to approve licensing of an HIV test that uses saliva and other oral fluids rather than blood, according to the San Francisco Examiner, Dec. 27. If approved, the test, manufactured by Eiptope, Inc., would be distributed through clinics and health care professionals, not through over-the-counter sales to the public, according to the news report. Concerned about the potential public health risk of new infectious diseases crossing species lines, an organization called the Physicians Committee for Responsible Medicine has filed a complaint with the federal Office for Protection from Research Risks in the Department of Health concerning the recent transplantation of baboon bone marrow into PWA Jeff Getty in San Francisco. The Food & Drug Administration approved the experimental procedure on the basis of extensive precautions being taken by doctors to isolate Getty. The Centers for Disease Control & Prevention are reportedly working on federal guidelines to govern cross-species medical experiments. San Francisco Examiner, Dec. 27. The Roman Catholic Church's Pontifical Commission for the Family issued a 60-page booklet in December stating that Catholic parents have a duty to keep their children away from sex education programs that promote the use of condoms and "safer sex" techniques. According to an Associated Press report that was published in newspapers during the third week in December, the booklet also says that acceptable instruction about sex must deal with homosexuality as being "against natural law." "Parents must refuse the promotion of so-called `safe sex' or `safer sex,' a dangerous and immoral policy," said the Vatican. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS LESBIAN & GAY & RELATED LEGAL ISSUES: Carter, Johnny, To Provide for the Legal Defense: Legal Defense Funds and Federal Ethics Law, 74 Tex. L. Rev. 147 (Nov. 1995). Case, Mary Anne C., Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 Yale L.J. 1 (Oct. 1995). Chrisman, Sue, Evans v. Romer: An "Old" Right Comes Out, 72 Denver U. L. Rev. 519 (1995). Eskridge, William N., Jr., Essay: The Many Faces of Sexual Consent, 37 Wm. & Mary L. Rev. 47 (1995). Faught, James J., An Approach to Dealing with Controversial Student Organizations, 78 Marq. L. Rev. 313 (Winter 1995) (Symposium on Religiously Affiliated Law Schools). Fishman, Clifford S., Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant's Past Sexual Behavior, 44 Catholic U. L. Rev. 709 (Spring 1995). Gilmour-Walsh, Bridget, Exploring Approaches to Discrimination on the Basis of Same-Sex Activity, 3 Australian Feminist 117 (Aug. 1995). Goldberg, Ronald M., RICO Forfeiture of Sexually Explicit Expressive Materials: Another Weapon in the War on Pornography, or an Impermissible Collateral Attack on Protected Expression?, 21 Wm. Mitchell L. Rev. 231 (Fall 1995). Kaas, Carolyn Wilkes, Determining Detriment to the Child in Third- Party Custody Cases in Connecticut, 17 West. New Eng. L. Rev. 205 (1995). Karst, Kenneth L., Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. Rev. 263 (1995). Muller, Vivienne, "Trapped in the Body": Transsexualism, the Law, Sexuality Identity, 3 Australian Feminist 103 (Aug. 1995). O'Brien, Raymond C., Domestic Partnership: Recognition and Responsibility, 32 San Diego L. Rev. 163 (1995). Orford, Anne, Liberty, Equality, Pornography: The Bodies of Women and Human Rights Discourse, 3 Australian Feminist 72 (Aug. 1995). Pincus, Laura B., & Clayton Trotter, The Disparity Between Public and Private Sector Employee Privacy Protections: A Call for Legitimate Privacy Rights for Private Sector Workers, 33 Am. Bus. L. J. 51 (1995). Portwood, Sharon G., Employment Discrimination in the Public Sector Based on Sexual Orientation: Conflicts Between Research Evidence and the Law, 19 L. & Psych. Rev. 113 (Spring 1995). Russell, Margaret M., Lesbian, Gay and Bisexual Rights and "The Civil Rights Agenda", 1 African-Amer. L. & Pol. Report 33 (1994). Schacter, Jane S., The Pursuit of `Popular Intent': Interpretive Dilemmas in Direct Democracy, 105 Yale L.J. 107 (Oct. 1995). Smith, Steven R., Accreditation and Religiously Affiliated Law Schools, 78 Marq. L. Rev. 361 (Winter 1995). Book Reviews: Freshman, Clark, Were Patricia Williams and Ronald Dworkin Separated at Birth? Overcoming Law by Richard Posner, 95 Columbia L. Rev. 1568 (Oct. 1995) with Response by Posner. Student Notes & Comments: Appleberry, J. Mark, Negligent Infliction of Emotional Distress: A Focus on Relationships, 21 Am. J. L. & Med. 301 (1995). da Luz, Carla M., A Legal and Social Comparison of Heterosexual and Same-Sex Domestic Violence: Similar Inadequacies in Legal Recognition and Response, 4 S. Cal. Rev. L. & Women's Studies 251 (Fall 1994). Davies, Tracy, Lewis v. Keisling: Sacrificing Simplicity and Avoiding "Discrimination"?, 74 Oregon L. Rev. 341 (Spring 1995). Goldman, Robert F., Put Another Log on the Fire, There's a Chill on the Internet: The Effect of Applying Current Anti-Obscenity Laws to Online Communications, 29 Georgia L. Rev. 1075 (Summer 1995). Goodman, Ryan, The Incorporation of International Human Rights Standards into Sexual Orientation Asylum Claims: Cases of Involuntary "Medical" Intervention, 105 Yale L.J. 255 (Oct. 1995). Hahn, Harlan, Feminist Perspectives, Disability, Sexuality and Law: New Issues and Agendas, 4 S. Cal. Rev. L. & Women's Studies 97 (Fall 1994). Herman, Jordan, The fusion of Gay Rights and Feminism: Gender Identity and Marriage After Baehr v. Lewin, 56 Ohio St. L. J. 985 (1995). Hughes, Karen, The Criminalization of Female Genital Mutilations in the United States, 4 J. L. & Policy 321 (1995). Murphy, Trish K., Without Distinction: Recognizing Coverage of Same-Gender Sexual Harassment Under Title VII, 70 Wash. L. Rev. 1125 (Oct. 1995). Neuman, Rita M., Closing the Door on Cohabitants Under Wisconsin's Open Housing Law, 1995 Wis. L. Rev. 965. Rubinstein, Marc L., Gay Rights and Religion: A Doctrinal Approach to the Argument That Anti-Gay-Rights Initiatives Violate the Establishment Clause, 46 Hastings L.J. 1585 (July 1995). Saffer, Ian L., Obscenity Law and the Equal Protection Clause: May States Exempt Schools, Libraries, and Museums from Obscenity Statutes?, 70 N.Y.U. L. Rev. 397 (May 1995). Watkinson, William W., Jr., Shades of DeShaney: Official Liability Under 42 U.S.C. sec. 1983 for Sexual Abuse in the Public Schools, 45 Case West. Res. L. Rev. 1237 (Summer 1995). Specially Noted: Sexual Orientation and Human Rights: The United States Constitution, the European Convention, and the Canadian Charter, by Robert Wintemute of the School of Law, King's College London, England (and a LeGaL member of long standing) has just been published in the U.S. by Oxford University Press. (ISBN 0-19- 825972-7). Direct orders received by January 31 will receive a substantial discount off the rather high retail price. (The editor has seen it at Different Light Bookstore in New York priced at $70.) Call 1-800-451-7556 (9-5 EST), fax 1-919-677-1303, or write to Order Dept., Oxford University Press, 2001 Evans Rd., Cary, NC 27513. We have seen an earlier draft of the final manuscript and can highly recommend this work. A.S.L. The December 14 issue of the New York Law Journal contains an interesting discussion and analysis of the recent decision by the New York Court of Appeals in Matter of Jacob and Matter of Dana, by Evan A. Davis. After describing the majority and minority opinions on whether unmarried couples may jointly adopt children in New York, Davis ruminates about the correctness of the decision. He comes to the conclusion that applying normal rules of statutory interpretation, one comes to a tie between the majority and minority views. He would break the tie in favor of the majority on the ground that it's approach yields a more functional result, that incorporates most of the concerns articulated by the minority. Interesting reading. AIDS & RELATED LEGAL ISSUES: Student Notes & Comments: David, Lori A., The Legal Ramifications in Criminal Law of Knowingly Transmitting AIDS, 19 L. & Psych. Rev. 259 (Spring 1995). McCormack, Brian C., HIV Employment Discrimination in Air Transportation, 61 J. Air L. & Commerce 287 (Sept-Oct 1995). Qureshi, Sarah N., Global Ostracism of HIV-Positive Aliens: International Restrictions Barring HIV-Positive Aliens, 19 Md. J. Int'l L. & Trade 81 (Spring 1995). Sizemore, James Paul, Alabama's Confidentiality Quagmire: Psychotherapists, AIDS, Mandatory Reporting, and Tarasoff, 19 L. & Psych. Rev. 241 (Spring 1995). Sundbeck, William, It Takes Two to Tango: Rethinking Negligence Liability for the Sexual Transmission of AIDS, 5 Health Matrix: J. of L-Med. 397 (Summer 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. A.S.L.