LESBIAN/GAY LAW NOTES Lesbian & Gay Law Association of Greater New York ISSN 8755 9021 February 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 or aleonard@counsel.com Contributing Editor: Colin Crawford, Esq., Brooklyn Law School. Contributing Writers: Otis Damslet, Esq., New York; Steven Kolodny, Esq., New York; Todd V. Lamb, Esq., New York; Michael S. Ryan, Esq., New York; Dirk Williams, Esq., Boston; Robin Miller, Esq., Seattle; Julia Herd, J.D., Brooklyn; Helen G. Ullrich, Student, New York Law School; David Pumo and Ross D. Levi, Students, Brooklyn Law School. Circulation: Daniel Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118. LeGaL Homepage: http://www.interport.net:80/~le-gal Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln (C) 1996 by Lesbian & Gay Law Association of Greater New York $45/yr by subscription (Foreign Rate US$60) TENNESSEE APPEALS COURT INVALIDATES ANTI-GAY SODOMY LAW By unanimous vote, a three-judge panel of the Court of Appeals of Tennessee ruled that a state law forbidding same-gender sexual contact violates the state constitution. Campbell v. Sundquist, 1996 WL 29326 (Jan. 26). The decision affirmed a ruling to the same effect last year by Davidson County Circuit Judge Walter C. Kurtz. This is test case litigation brought by a group of lesbian and gay Tennesseans represented by Abby R. Rubenfeld, a Nashville attorney who is chair of the American Bar Association's Section on Individual Rights and Responsibilities. The challenged statute, Tennessee's Homosexual Practices Act, TCA sec. 39-13-510, was passed in reaction to Bowers v. Hardwick, the 1986 decision in which the U.S. Supreme Court upheld the constitutionality of Georgia's felony sodomy law. Like Georgia, Tennessee at that time had a law that banned both heterosexual and homosexual "sodomy." Reacting to the public outcry after Hardwick, the Tennessee legislature replaced its sodomy law with a law that specifically (and broadly) penalizes all sexual contact between persons of the same sex, thus deregulating consensual sexual conduct by opposite sex couples. A good portion of the opinion for the court by Presiding Judge W. Frank Crawford is concerned with refuting the state's argument that the court lacked jurisdiction over the case because none of the individual plaintiffs had been threatened with prosecution. The court ruled, affirming the circuit court, that Tennessee's Declaratory Judgement Act provides a basis for the courts of the state to consider constitutional challenges to statutes brought by citizens whose particular interests are at stake. (On this point, Judge Ben Cantrell disagreed with the majority and would have found that the plaintiffs lacked standing. But he indicated that he concurred with the court's ruling on the merits of the constitutional claim.) Turning to the merits, Crawford observed that the Tennessee courts have indicated that the state constitution has a right of privacy that is not necessarily coextensive with the federal constitutional privacy right. Crawford relied heavily on Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), in which the Tennessee Supreme Court relied on the state constitution in finding that an ex-husband had a right to block the use of frozen embryos conceived with his ex- wife; she had wanted to donate the embryos to infertile couples. The court ruled that the ex-husband's privacy right was broad enough to empower him to refuse to become a biological parent in this manner. Turning to the challenged statute, Crawford focused not on decisional privacy but rather on spatial privacy, i.e., that the statute would criminalize consensual adult sex that takes place in the home of the participants. "That is, as written, the statute is sufficiently broad to prohibit sexual activity which takes place behind closed doors in an individual's home. The sanctity of the home has long been recognized by both federal law and Tennessee law, and both bodies of law have drawn distinctions between actions which are committed in the privacy of the home and those committed in public." The court concluded that it was "consistent" with that jurisprudence to hold "that an adult's right to engage in consensual and noncommercial sexual activities in the privacy of that adult's home is a matter of intimate personal concern which is at the heart of Tennessee's protection of the right to privacy, and that this right should not be diminished or afforded less constitutional protection when the adults engaging in that private activity are of the same gender." Finding that the right at issue is "fundamental," the court determined that it should use "strict scrutiny analysis" to review it. The court determined that none of the interests asserted by the state to justify the statute were sufficient, "because either the asserted interest is not a compelling one, or the Act is not narrowly drawn to advance that interest." First, the state's interest in "discouraging activity which cannot lead to procreation" appeared directly to contradict Griswold v. Connecticut's federal constitutional protection of procreational freedom. Second, the state's interest in deterring people from pursuing a "socially stigmatized lifestyle which leads to higher rates of suicide, depression, and substance abuse" (hard to believe the state had the gall to advance this argument) ran afoul of U.S. Supreme Court precedents like Palmore v. Sidoti, which discredit attempts by the state to give effect to the biases of other members of the community. Similarly, the court dismissed the state's argument that it was necessary to deter homosexuals "from entering into short lived, shallow, and promiscuous relationships that weaken the `fabric' of the community at large." The state had provided no evidence to prove that such a description applied to all homosexual conduct. The court rebuffed the state's attempt to ground the statute as a public health measure, noting that the statute would forbid gay people from engaging in "safe sex" and that public health experts have opined that sodomy laws hurt public health by deterring gay people from seeking treatment of sexually-transmitted diseases. Finally, the court rejected the state's argument that the statute legitimately advanced the morals of residents of the state. This part of the opinion is particularly interesting, presenting a thoughtful discussion of the problem of reconciling majoritarian moral sentiment with the constitutional rights of minorities. "Even if we assume that the Homosexual Practices Act represents a moral choice of the people of this state, we are unconvinced that the advancement of this moral choice is so compelling as to justify the regulation of private, noncommercial, sexual choices between consenting adults simply because those adults happen to be of the same gender." Here the court interjected a lengthy summary of the Kentucky Supreme Court's decision in Commonwealth v. Wasson, 842 S.W.2d 487 (1992), striking down that state's sodomy law and rejecting similar moral arguments. Concluded Judge Crawford: "The Court must scrupulously avoid imposing the moral beliefs of its members on anyone. The Court's opinion should not in any way be deemed to condone or condemn any particular lifestyle or the moral behavior associated therewith. The Court's role is to see that the liberty of our citizens is fully protected to the extent authorized by our Constitution and laws." The court also affirmed the circuit court's decision to issue a declaratory judgment with an injunction, finding based on prior Tennessee Supreme Court decisions that "this Court may not enjoin pending or threatened prosecutions for the violation of the criminal laws of this State." Consequently, at this stage of the litigation, the decision stands as the opinion of a panel of the Court of Appeals, and the question remains whether the state will bring the case before its Supreme Court for a final ruling as a statewide precedent. At press time, no announcement had been made on this. Amicus briefs were filed in support of the challengers to the statute by the ACLU of Tennessee, the American Psychological Association, the National Association of Social Workers and its Tennessee chapter, Lambda Legal Defense and Education Fund, and Tennesseans for Equality. A.S.L. LESBIAN/GAY LEGAL NEWS Federal Court Finds First Amendment Violation in Alabama Schools Law Alabama Attorney General Jeff Sessions had the wind taken out of his sails by U.S. District Judge Myron H. Thompson on Jan. 29, when Thompson cut short Sessions' threat to seek an injunction against a scheduled conference of lesbian, gay and bisexual students from around the southeast at University of Alabama at Tuscaloosa by declaring unconstitutional the state statute upon which Sessions would rely. In Gay, Lesbian Bisexual Alliance v. Sessions, Civ. Act. No. 93-T-1178-N (M.D.Ala.), Thompson ruled that the Alabama law barring funding of an student group activity that might "promote" homosexuality violated the free speech and association protections of the First Amendment. The Alabama Public Funds and Facilities Act, sec. 16-1-28 of the Alabama Code, was passed after controversy arose over the decision by the administration at Auburn University to recognize a gay and lesbian student organization over the negative vote of the student government organization at the school. The statute "prohibits any college or university from spending public funds or using facilities, directly or indirectly, to sanction, recognize or support any group that promotes a lifestyle or actions prohibited by the sodomy and sexual misconduct laws" and "prohibits any group from permitting or encouraging its members or others to engage in or provide materials on how to engage in the lifestyle or actions." This litigation was brought by the ACLU and its Alabama Chapter on behalf of the gay student organization at University of South Alabama. Although the organization was recognized by the university, all of its attempts to gain funding for its activities were stalled by the administration (even though approved by the student government organization). Judge Thompson found that the university funded a wide range of student activity on campus, and that the charter of the gay student group did not involve any attempt to promote or encourage any particular sexual conduct. Nonetheless, both university officials and the Attorney General, who responded to their request for advice, determined that the statute prohibited any university funding for the group. Thompson found that the Supreme Court's decision last term in Rosenberg v. Rector & Visitors of the University of Virginia, 115 S.Ct. 2510 (1995), was a decisive precedent in this case. In Rosenberger, the Court found that the university had engaged in impermissible viewpoint discrimination when it refused to fund a Christian student publication while funding a wide range of other student publications. Applying the holding here, Thompson concluded that the Alabama statute is "naked viewpoint discrimination" because, for example, it would permit the university to fund a speaker who argued that homosexuality was immoral but not a speaker who would take the opposite position. The denial of funding is thus based solely on the viewpoint of the speaker. Thus, he concluded, "the statute therefore attempts to impose on a group that receives public funds or uses public facilities the State's viewpoint regarding certain lifestyles and actions and to require that group and its members to conform their speech to this viewpoint." In a footnote, Thompson asserted that the statute violates "associational rights in addition to free speech rights; "In other words, under sec. 16-1-28, a group that fails to exclude such a member [i.e., a person who promotes homosexuality] would be guilty of violation of the statute merely by association with that member." Thompson also found remarkable that the statute did carve out an exception for groups "whose activities are limited solely to the political advocacy of a change in the sodomy and sexual misconduct laws of this state." The inclusion of this section in conjunction with the prohibitory provisions, he said, "leaves no doubt that the statute constitutes viewpoint discrimination." The state sought to justify this discrimination first by reference to Bowers v. Hardwick and Alabama's sodomy law, arguing that the prohibited speech under the statute was tantamount to solicitation to engage in illegal conduct. Thompson rejected this argument, opining that "mere advocacy" could not be outlawed consistent with Brandenburg v. Ohio, 395 U.S. 444 (1969), under which only speech presenting an imminent danger of lawless acts could be proscribed. Thompson also rejected the state's argument that the statute was necessary to advance state policies in favor of procreation (!) and against pornographic speech. Perhaps more challenging was the state's invocation of Rust v. Sullivan, 500 U.S. 173 (1991), in which the Supreme Court sustained against constitutional attack a federal regulation that barred recipients of federal family planning funds from counseling about or recommending abortion in their facilities. Thompson noted that the same sort of argument was made by the university defendant in Rosenberger, and rejected by the Court. According to the Court, Rust involved a situation where the government, itself, is the speaker, while the Rosenberger situation involved a variety of non- governmental speakers receiving government funding based on the content of their speech. Thompson found this persuasive and applicable to the context of the Alabama case. Ruth Harlow of the ACLU Lesbian & Gay Rights Project argued the case before the federal district court. Attorney General Sessions immediately announced his intention to appeal to the 11th Circuit. However, the track record of state officials defending such rules on public university campuses is rather poor; every case litigated to the appellate level in a variety of other circuits has concluded that state universities may not discriminate against gay student groups, and an 8th Circuit case at the University of Arkansas, a state with a sodomy law, concluded that the gay group must be funded on the same basis as other student groups. A.S.L. Supreme Court Denies Review to Decision About Hours for Indecent TV and Radio Broadcasts The Supreme Court denied a writ of certiorari in Pacifica Foundation v. Federal Communications Commission, No. 95-509, and Action for Children's Television v. Federal Communications Commission, No. 95-520, both cases stemming from the D.C. Circuit's en banc decision reported at 58 F.3d 654, which upheld section 16(a) of the 1992 Public Telecommunications Act, which restricts times for the broadcast of "indecent" material, but found unconstitutional a safe harbor provision that lets public radio and TV stations broadcast such programs during hours forbidden to commercial stations. See 64 USLW 3455 (1/9/96). A.S.L. Utah Supreme Court: Lesbian Cohabitation Prior to Divorce Not a Good Moral Example for Children In a carefully worded opinion turning on facts other than sexual orientation, the Supreme Court of Utah reversed an appellate ruling and restored a trial court decision awarding custody of a child to her heterosexual father instead of her lesbian mother. Tucker v. Tucker, 1996 WL 20521 (Jan. 4). Lynn and James Tucker were married in February 1988. They separated in June 1991, agreeing that their three-year-old daughter would live with Lynn, who moved to another house and then into her mother's house. In September 1991, Lynn filed for divorce and was awarded temporary custody. Lynn began a lesbian relationship and, in September 1992, her lover moved in with her; after several months, they bought a house together. The divorce proceedings came to trial in February 1993. The trial court awarded custody to James, based on the following findings: the evaluator mutually chosen by the parties recommended that James be awarded custody, because of his emotional stability in contrast to Lynn's series of failed relationships and mood swings that therapy had not yet resolved; James had slightly more free time than Lynn, and he spent more of his free time with the child than Lynn did; the child enjoyed church activities, in which James participated more regularly than Lynn; a day care provider testified that the child was more closely bonded to James; and, most controversially, Lynn's illegal cohabitation during the proceedings set a bad moral example for the child. The trial court found that homosexuality "is not a mental illness nor a deviancy," and that Lynn's cohabitation with her lover "should be analyzed similarly to a situation involving cohabitation with a member of the opposite sex without benefit of marriage in the presence of a minor child." The appellate court reversed, ruling that the trial court had failed to link some of its findings to Lynn's parental ability, and to give sufficient weight to the successful temporary custody. In footnotes that reflected the broader implications of the case, the appeals court wrote that the trial court, by emphasizing Lynn's cohabitation without benefit of marriage, had effectively punished Lynn for the fact that same-sex couples are not allowed to marry. The Utah Supreme Court reversed, reinstating the decision of the trial court. Writing for a unanimous court, Justice Russon began by noting that a trial court must often choose between two qualified parents, with broad discretion to decide what will be in the best interests of the child, and that its decision will only be reversed where it is "so flagrantly unjust as to be an abuse of discretion." Adding that a temporary custody arrangement must not be given the same weight as a permanent custody decision (or else preliminary custody hearings would turn into full-scale trials), Russon pointed out that the trial court had based its decision on several findings of fact, each of which was supported by the evidence. Addressing the issue of sexual orientation, Russon wrote that the issue "was not whether a trial court could properly question a parent's morality where that parent had merely cohabited with a member of the same sex. Rather, the issue was whether a trial court could properly question the morality of a parent who had cohabited with another person . . . while still married. The trial court found that the occurrence of this conduct during the marriage and in the presence of the child demonstrated Lynn's lack of moral example. It cannot be said that the trial court abused its discretion in reaching this conclusion." While the decision amounts to a defeat for Ms. Tucker, it may represent a victory for other gay parents, because it upheld a finding that a parent's lesbian relationship should be analyzed analogously to a heterosexual relationship. O.R.D. Nebraska Supreme Court Reverses Conviction of Lesbian in Stabbing Death of Her Partner In a per curiam opinion issued Jan. 26, the Nebraska Supreme Court reversed the conviction for manslaughter and using a knife to commit a felony of Sherline R. Woods in the death of her partner, Cheryl Culliver. State v. Woods, 1996 WL 29055. Testimony at trial showed that Woods came home to find Culliver smoking crack cocaine with a man. Woods became upset and asked both of them to leave. Culliver responded belligerently and things degenerated into a physical fight involving a kitchen knife, with Culliver dying from a stab wound to the heart. A neighbor whom Woods called to assist her also testified at trial. Woods testified in her own defense that during the struggle Culliver impaled herself on the knife, which came out of her chest when Woods pushed her away. During the trial, Woods' counsel objected to the prosecutor asking the police investigator whether Woods had refused to provide a tape-recorded statement after she agreed to waive her Miranda rights and answer questions at the police station, but the trial judge allowed the question. Woods also objected to the trial judge charging the jury on intoxication as a defense, but the trial judge gave the charge. Woods claimed that this charge would prejudice her case for self-defense. The court of appeals had affirmed the conviction, even though it found the question about the statement improper, asserting that the error was harmless. The Nebraska Supreme Court disagreed, finding that both of Wood's grounds for appeal were well-founded, entitling her to a new trial. A.S.L. Minnesota Appeals Court Restores Visitation for Lesbian Mom A unanimous 3-judge panel of the Minnesota Court of Appeals, calling "palpably untrue" the inference that "any contact by children with lesbians or homosexuals is per se harmful to the children's emotional health or development," granted the appeal of a lesbian mother from a restrictive visitation order by a trial court. The Jan. 16 decision in McKay v. Johnson, 1996 WL 12658 (not officially published) reversed the trial court and reinstated a prior existing visitation schedule. Kelly McKay and Gerald Johnson were divorced in December 1990, with Johnson receiving sole custody of their two young children. McKay moved to San Francisco and lived with her lesbian partner. The visitation schedule had the children staying with McKay for two weeks at Christmas, two weeks at Easter/spring break, and all of the summer vacation, with McKay and Johnson sharing air travel costs for Christmas and summer vacation. In 1993, McKay and her partner moved to Austin, Texas. Their move was followed by extended legal maneuvering over how much McKay would pay toward support of the children. On May 19, 1995, Johnson filed a motion seeking to modify McKay's visitation rights. Johnson made a variety of claims about McKay's exposure of the children to homosexuality, including allowing her lover to take one of the kids on a three-day trip to New York during which they attended a gay pride march. Johnson also pointed to a postcard sent to his son by a gay man he had met while staying with McKay. (The gay man was the minister of her church, who sent the postcard because the boy asked him to write.) The evidence before the trial judge included testimony from a therapist hired by Johnson, who found that the children appeared well adjusted and happy, which was echoed by a social worker hired by McKay, who also submitted several affidavits from neighbors, church leaders and friends attesting to the health and well-being of the children during their Texas visits with their mother. On June 26, the trial court issued an order, limiting McKay's visitation to Beltrami County, Minnesota, where Johnson lived. The court found that visitation with McKay in Texas "is likely to endanger both children's emotional health and impair their emotional development." The court of appeals, in an opinion by Judge Forsberg, found the trial court's conclusions incredible, pointing out that there was no evidence that the children had suffered any emotional damage from their extended visits with McKay and her lover, and that the restriction to Beltrami County "was an abuse of discretion based on a clearly erroneous finding of endangerment." The court of appeals overruled the trial court and reinstated the prior visitation arrangements. A.S.L. Hawaii Supreme Court Rejects Homosexual Panic Defense in Murder Case In Hawaii v Knight, 1996 WL 11442 (Jan. 12), the Hawaii Supreme Court affirmed defendant's conviction of murder in the second degree, rejecting his contentions that the trial court erred in failing to instruct the jury on reckless manslaughter and that the prosecutor's conduct denied him a fair trial. Defendant John E. Knight killed an allegedly gay man. Knight testified to the following story at trial. Knight, a Marine, met William A. Rowe on the night he killed him. Rowe offered to drive him to a nightclub. On their way, they stopped at Rowe's apartment. There, they allegedly began to have sex, when defendant decided to leave. As he was dressing, Rowe heard defendant's handcuffs clink together. At that point, Rowe fastened one of the cuffs to his left wrist. Defendant fastened the other cuff to Rowe's right wrist. According to defendant, Rowe then got on his knees and began to fondle defendant's genitals. Defendant testified that he then "wigged out big time [and] just wanted him to stop." The "next thing [defendant] knew" was that he had sliced Rowe's throat with the 6 1/2 inch military-style knife defendant had with him. Three of defendant's fellow Marines and friends testified that defendant had been planning to rob gay men. One testified that the defendant told him the killing "was an accident, just boom next thing he knows the guy was dead." Another testified that the defendant told him that he had robbed the victim and that "he put his knee in the guy's back and pulled his hair and just cut his throat." At trial, the defendant asked for and received an instruction on manslaughter by virtue of extreme mental or emotional disturbance for which there was a reasonable explanation. Defendant's explanation was that his father sexually and emotionally abused him when he was a child, rendering him an extreme homophobic. Defendant's mother corroborated defendant's emotional abuse testimony. Apparently his father called him names like "mama's boy, sissy, and wimp." The trial court refused defendant's request for a reckless manslaughter charge, however. In order to receive a reckless manslaughter charge, there must some evidence that defendant disregarded a substantial and unjustifiable risk that his conduct would cause the undesired result. Defendant asserted that because of his father's abuse he was sensitive to sexual contact with men. When it became apparent that Rowe was attempting to seduce defendant, he therefore ignored a substantial and unjustifiable risk by staying with Rowe and allowing him to engage in conduct which ignited the defendant's anger to the point of violence, entitling defendant to the charge. The Court rejected this theory and found that the cause of Rowe's death was the knife wound and not defendant's staying in the apartment. It also found that defendant's "wigged out theory does not suggest that the slashing of the [victim's] through occurred through Knight's recklessness in approaching the victim while holding a knife," but rather that such actions were uncontrollable. The theory that defendant acted uncontrollably was encompassed in the charge on manslaughter by virtue of extreme mental or emotion disturbance. Hence, nothing in the evidence supported defendant's request for a reckless manslaughter charge. Lastly, the court acknowledge that the prosecutor's question to defendant on cross-examination about whether he would be surprised to find out that his brother said defendant was not sexually abused was improper. In view of the overwhelming evidence of defendant's guilt, such error was harmless. M.S.R. Oregon Appeals Court Construes "Singling Out" Law The Oregon Court of Appeals has clarified what ORS 659.165(1) means when it forbids "singling out" or "granting special rights" based on sexual orientation. In a careful and evenhanded opinion, the court slammed the door on attempts to negate the legal existence of lesbians and gay men in deParrie v. City of Portland, 906 P.2d 844 (Or.App., Nov. 29, 1995). The statute at issue, ORS 659.165(1), prohibits political subdivisions in Oregon from enacting any law or policy that "singles out" or "grant[s] special rights, privileges or treatment" to citizens on account of sexual orientation, or enacting any law or policy that "singles out" individuals or groups based on sexual orientation. Appellant deParrie claimed 11 instances where the conduct of the city and county singled out and granted special rights to citizens based on their sexual orientation. Those alleged instances included the presentation by the city and county's Affirmative Action Office that homosexuality is a non- relevant factor in employment; offering counseling by the County Youth Services Commission to homosexual and bisexual youth; authorizing the city Chief of Police to march in the city's annual Gay Pride Parade, and teaching county employees to "accept the `normalcy' or `acceptability' of homosexuality." The trial court had entered judgment for the city and county on all claims, and the plaintiff appealed. Plaintiff argued that the statutory term "to single out" must be understood broadly so as to include identification, acknowledgement, or approval of homosexuality. To single out would therefore encompass the "granting of special rights." In contradistinction, the city argued that "singling out" refers only to conduct that adversely treats one group differently from others, while "granting special rights" refers to conferring rights or privileges on one group and not on others. The county offered yet a third interpretation of the statutory language, arguing that "singling out" refers to the deprivation of a constitutionally established right, and that "granting special rights" refers to extending "a new right" to some but not to others. The court disagreed with all three interpretations, although its own is closest to that of the city's. The court stated that the prohibition against "singling out" is a prohibition against discrimination on the basis of sexual orientation. Thus, the statute is not so narrow that it only addresses the deprivation of constitutional rights. As for the term "granting of special rights, privileges or treatment," the court held that this term not only prohibits giving new rights to some but not others, but more broadly prohibits preferential "treatment" such as affirmative action or hiring quotas based on sexual orientation. With the statute's language thus clarified, the court found that none of plaintiff's claims showed that the city or county had enacted any kind of provision that singled out sexual orientation. "Plaintiff has alleged that the city and the county have referred to homosexuality as `normal' or `acceptable,' or that they have provided services to homosexuals. In no case, however, is there an allegation that any citizen or group of citizens has been discriminated against on account of sexual orientation." However, the court found that two of plaintiff's claims appeared to show a granting of special treatment based on sexual orientation: that the city expended funds specifically to recruit homosexuals for city employment, and that the county specifically recruited homosexuals to serve on its Children and Youth Services Commission. These two claims were reversed and remanded, and the rest dismissed. J.H. I.R.S. Issues Private Letter Ruling on Domestic Partnership Benefits Plan In Private Letter Ruling 9603011, issued Jan. 19 (see 1996 WL 18211), the Internal Revenue Service shed further light on the tax treatment of domestic partnership benefit plans voluntarily adopted by private sector employers. The letter, dated Oct. 18, 1995, was released over the signature of Harry Beker, Chief, Branch No. 6, Office of the Assistant General Counsel for Employee Benefits and Exempt Organizations, in response to an inquiry by an "international law firm" that was contemplating adoption of a domestic partnership benefits plan for its employees in the United States and in its overseas offices. Beker's letter limited itself to the domestic employees, and indicated that a separate response would be forthcoming from a different office dealing with issues raised by the overseas employees. Of course, private letter rulings do not constitute precedent, are published for the convenience of practitioners and taxpayers, and are not binding on the Service or the courts. Most of the content will be familiar to those who have seen earlier Letter Rulings responding to inquiries from employers, although this letter may be particularly useful to lawyers who are seeking to persuade their law firms to extend such benefits. The key points are as follows: 1. A domestic partner will not be considered a spouse "unless recognized as such under state law." This seems to indicate, without saying so explicitly, that were a state to allow same sex marriage, the I.R.S. would recognize the marriage for purposes of federal tax law, thus echoing a bankruptcy judge's ruling to the same effect last year. 2. A domestic partner could be considered a "dependent" for purposes of the tax code, if the partner otherwise satisfies the requirements of section 152(a). The principal requirement of 152(a) is that more than half of the partner's financial support comes from the employee. Another requirement is that the partner be in a relationship with the employee that qualifies under one of the subsections of 152(a). The most likely subsection for domestic partners is 152(a)(9), which requires that the partner "for the taxable year of the taxpayer has as his or her principal place of abode the home of the taxpayer and is a member of the taxpayer's household." In addition, however, one must consider subsection 152(b)(5), which provides that a person is not a member of a taxpayer's household "if at any time during the taxable year of the taxpayer the relationship between such individual and the taxpayer is in violation of local law." It is uncertain exactly what this means. Surely, the recent 11th Circuit decision in Shahar v. Bowers, 1995 WL 713127, holding that same-sex relationships are covered under the constitutional right of intimate association, would portend that same-sex households could not be held to be in violation of local law, even where there is a sodomy law in force. 3. The inclusion of domestic partnership coverage in an employer's plan "will not otherwise affect the excludability under section 106 of the Code of amounts contributed by the Firm for health insurance benefits for Qualified Employees, their spouses and dependents." Presumably, although not expressly stated, amounts contributed for coverage for domestic partners who are not dependents within the meaning of the Code would not be excludable from the firm's taxable income. 4. Although actual payments a domestic partner receives by virtue of filing claims under the plan would not be considered taxable income, the employee would be taxed on "the excess of the fair market value of the group medical coverage provided by the Firm over the amount paid by the Qualified Employee for such coverage." Frustratingly, as in past letter rulings, the Service provides no further elucidation about how employers are to calculate such "fair market value," which may actually be tricky for large employers paying a blanket amount for a large group policy. Of course, for employers whose plans are totally contributory for coverage of spouses and dependents, this should not be an issue. Another point is that if such "fair market value" is included in the income of the employee, it is to be treated as "wages" and is thus subject to social security and unemployment insurance withholding taxes. This ruling illustrates once again the importance of either attaining the right of same-sex marriage from the states or attaining an amendment of the federal definition of spouses or defendants in the Tax Code as a prerequisite to obtaining equality of tax treatment with respect to employee benefits for same sex households. The Nov.-Dec. issue of The Tax Executive (Vol. 47, No. 8), reports that the Canadian government is considering possible changes to their tax regulations to achieve equal treatment for domestic partners. A.S.L. NY Court Rebuffs Narrow Reading of Braschi by New State Administration Observe the attempt of appointees of Governor George Pataki to adopt a narrow construction of a precedent they dislike. In Matter of Comparone, NYLJ, 1/19/96, p.26, col.3 (Sup.Ct., N.Y. Co., Goodman, J.), the landlord was seeking a rent increase based on the cohabitation of Kevin Kennedy with the tenant of record, Elaine Comparone. While conceding that Kennedy and Comparone, who had lived together in the apartment for twenty years, clearly satisfied the tests prescribed by the Court of Appeals in Braschi v. Stahl Associates Co., 74 N.Y.2d 201, to be considered family members, the Division of Housing and Community Renewal (DHCR) granted the landlord's request, holding that the tenant succession regulations did not extend to a rent increase situation. Justice Goodman was not buying: "DHCR's reasoning is spurious, frivolous and shows no analysis or understanding of the law and public policy of this state. . . DHCR's position here that Mr. Kennedy could be considered a family member for eviction purposes but not for rental increase purposes is quite plainly ridiculous. Obviously the protection against eviction is the greatest protection available under the rent control laws. There is simply no legal precedent nor logical reason to distinguish between an `immediate family member' for purposes of protection against eviction as opposed to rent regulation." A.S.L. Vacco Reaffirms Discrimination Policy Dennis C. Vacco was elected Attorney General of the State of New York in 1994 in a campaign where some of his supporters attacked his opponent, Karen Burstein, because she is a lesbian. Shortly after taking office, Vacco replaced his predecessor's executive order governing discrimination policy in the State Law Department with a new order that, unlike the predecessor's, omits "sexual orientation." Subsequently several openly-lesbian or gay employees of the Department were fired in the course of a "reorganization" of the Department that generally downgraded civil rights enforcement functions. The Public Employees Federation, a union representing employees of the office, filed an unfair practice charge against the Department, asserting that the change in policy violated the Department's duty to bargain over changes in terms of employment. Public Employees Federation v. State of New York, PERB Case No. U- 16702. On Jan. 26, the union issued a news release announcing that Vacco had restored the prior policy on sexual orientation in exchange for withdrawal of the charge. However, Vacco did not agree to add "sexual orientation" to his executive order. Instead, he signed a Stipulation of Settlement with the union, under which he obligated himself to send a letter to the Executive Director of the Union (a copy of which was annexed to the stipulation as an exhibit), which he states is intended "to clarify my publicly and privately stated policy, which is that the Department of Law will not discriminate against any employee of the Department on the basis of sexual orientation with respect to that employee's assignments, promotion, discipline, discharge, or any other term and condition of employment" and adds that any complaint of violations of this policy would be processed by the Department's Equal Employment Opportunity Committee. Vacco added that the policy "is firmly grounded in the law and in the belief that an employee's sexual orientation has no lawful relevance in personnel decisions made by the Department of Law. Thus, I will continue to focus my employment decision on relevant merit based criteria." Curiously, the Vacco letter does not mention hiring among the personnel actions governed by this policy, so his letter by its terms assures non-discrimination only for incumbent employees of the Department. Perhaps more interesting, in light of media reports about the hiring practices of the Department, is the reference to relevant merit based criteria; apparently, under Vacco's definition, being a relative of a prominent Republican or a major campaign donor is a relevant merit based factor for being a lawyer for the State of New York. (It is also interesting to note that during the summer of 1994 the New York State courts amended the state's Code of Professional Responsibility to make it a disciplinary offense for members of the bar to discriminate in any employment decision on the basis of sexual orientation.) A.S.L. Second Circuit Hears Argument on Military Policy On Jan. 16, a 3-judge panel of the U.S. Court of Appeals for the 2nd Circuit, consisting of Wilfred Feinberg, John Walker, and Pierre Leval, heard oral argument in Able v. U.S., No. 95-9111, a test case jointly brought by the ACLU Lesbian & Gay Rights Project and Lambda Legal Defense & Education Fund on behalf of several military service members challenging the Defense Department's current policies on service by gays. In an unofficially published decision in March 1995, U.S. District Judge Eugene Nickerson ruled that the new policy is unconstitutional. Oral argument was originally scheduled for Dec. 19, but was postponed at the last minute when Judge Guido Calabresi withdrew from the panel after the government pointed out that as dean of Yale Law School he had signed a letter to Congress declaring that the proposed policy was unconstitutional. Calabresi was subsequently appointed to the court by President Clinton. Judge Walker took Calabresi's place on the panel. Matthew Coles of the ACLU presented the oral argument for the challengers, Justice Department lawyer Edwin Kneedler for the government. Press reports of the oral argument indicated that the judges showed no particular disposition on the case, grilling both attorneys very thoroughly on their arguments. As we go to press, a decision is still pending from the en banc 4th Circuit argument in Thomasson v. Perry, argued early in December. Unlike the Able test case, Thomasson concerns an individual service member who was singled out for discharge after he revealed his sexual orientation. The district court in that case upheld the validity of the polity, and a 3-judge panel decided after hearing oral argument to refer the case for en banc hearing without issuing an opinion. A.S.L. 4th Circuit Says Same-Sex Harassment Not Actionable under Title VII If All Actors Are Heterosexuals of the Same Sex A county employee in Fairfax County, Virginia, was not entitled to a trial on his Title VII claim of sexual harassment because both he and his harassers are heterosexual, the 4th Circuit ruled on Jan. 9. In McWilliams v. Fairfax County Board of Supervisors, 1996 WL 10280, the plaintiff, a learning and emotionally disabled mechanic, claimed that he had been repeatedly harassed by the "lube boys," as the men in his department called themselves. McWilliams claimed that he had been assaulted with a broomstick to his anus, had been bound and gagged while oral sex was simulated, and had been subjected to repeated explicit sexual references. The atmosphere in the workplace was full of sexual and pornographic material, including pin-ups and calendars of scantily-clad women and off- color cartoons. McWilliams complained to his supervisors about the environment but had not complained of any physical assaults. A supervisor referred McWilliams to the Employee Assistance Program when McWilliams appeared distraught and said that he was upset about family and personal problems as well as a possible workforce reduction. He was diagnosed with severe emotional problems and took a medical leave from his job. One month later, he complained to his superiors that he had been sexually abused by a co-worker and subsequently filed a complaint with the EEOC. After the EEOC issued a right-to-sue letter, McWilliams commenced this action under Title VII and 42 U.S.C. section 1983 in federal district court, which granted summary judgment for the county. Upon appeal, the 4th Circuit analyzed his complaint as one of "hostile workplace environment" requiring the plaintiff to show that (1) the conduct was unwelcome, (2) the harassment was based upon his sex, and (3) the harassment was sufficiently egregious to create a hostile environment knowingly tolerated by the employer. The court refused to reach the third criterion, holding that McWilliams's claim failed because he and his alleged harassers were heterosexuals and, therefore, the harassment was not "because of sex." While disapproving of the co-workers' behavior, which it called "puerile and repulsive," the court reasoned that Congress had not intended Title VII to reach as a far as heterosexual horseplay "in matters of sex," as it described the facts of this case, but only to harassment that occurred "because of the victim's sex." The court said that while the harassing conduct against McWilliams had been sexual in nature, it had not occurred because of his sex. Therefore, Title VII protection did not extend to a situation such as this one where the victim and the harasser were of the same sex and heterosexual. The court dismissed the Section 1983 complaint for the same reason. H.G.U. Same-Sex Harassment Actionable in Northern District of Illinois, But Not In Western District of North Carolina Continuing a nationwide trend from last year, another federal district court has ruled that same-sex harassment is actionable under Title VII. Ton v. Information Resources, Inc., 1996 WL 5322 (N.D.Ill. Jan. 4). Plaintiff Paul Ton sued his employer, IRI, claiming that his supervisor, Tom Kozbiel, sexually harassed him both verbally and physically for two years, and that Kozbiel issued Ton unfavorable performance evaluations in retaliation for Ton's rejection of Kozbiel's sexual advances. Kozbiel, who was married, did not subject anyone else in the office to similar treatment. Ton filed suit under Title VII claiming sex discrimination and retaliation; IRI moved to dismiss, claiming that same-gender sexual harassment is not actionable under Title VII, that IRI could not be held liable for Kozbiel's conduct, and that many of the events in the complaint were barred by the statute of limitations. Regarding the negative evaluations, Judge Leinenweber ruled that the issue was not one of retaliation, which must be based on protected activity, but rather one of quid pro quo sexual harassment; the court therefore modified the complaint accordingly. Regarding IRI's agency liability, Leinenweber wrote that ordinary principles of agency govern the decision whether to impute a supervisor's misconduct to the employer, with the result that the employer will be liable if, among other possibilities, the harassment fell within the supervisor's apparent scope of authority; Kozbiel's use of his supervisory authority to attempt to extort sexual favors from Ton satisfied this test and established liability for IRI. Regarding the question whether Title VII applies to same-gender sexual harassment, Leinenweber observed that federal courts are divided but that the 7th Circuit, in dicta, had stated that it might apply. See Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995). Noting that at least fifteen district courts had ruled on the issue in 1995, Leinenweber found the growing trend more persuasive, that Title VII does apply to same-gender sexual harassment. Sexual harassment exists in two forms, "hostile environment" and "quid pro quo;" Leinenweber pointed out that the quid pro quo form had been ruled actionable in his district many years earlier, citing Wright v. Methodist Youth Servs., Inc., 511 F.Supp. 307 (N.D.Ill. 1981). Regarding the statute of limitations defense, the court discussed the question whether the earlier events could be combined with the more recent ones to form a continuing violation, but ruled that precise resolution of the issue was unnecessary because Ton had alleged sufficient events within the 300-day limitation period to survive a motion to dismiss. O.R.D. By contrast, the U.S. District Court for the Western District of North Carolina dismissed a same-sex harassment suit brought under Title VII on Dec. 20. In Wrightson v. Pizza Hut of America, Inc., 1995 WL 783044, the plaintiff claimed that he was "subjected to unwelcome harassment by his supervisor and co-employees, who were allegedly male homosexuals," and "that such harassment created a hostile sexual work environment." District Judge Mullen, noting that "other jurisdictions are divided as to whether intra-gender harassment is cognizable under Title VII," focused on the 5th Circuit decision in Garcia v. Elf Atochem North America, 28 F.3d 446 (1994), as the only circuit court decision to have dealt with the issue explicitly, and stated: "This court is in agreement with . . . Garcia. There is no evidence that Congress intended to prohibit intra-gender harassment in enacting Title VII. If Congress feels that such harassment should be sanctioned, Congress is free to amend Title VII." A.S.L. District Court Finds Sexual Orientation Discrimination Can Be Inferred from Reaction to "Appearance" or "Mannerisms" In Cheung v. Merrill Lynch, 1996 WL 22978 (Jan. 26), U.S. District Judge Stanton (S.D.N.Y.), held that, when viewed together with actions taken by defendants, a complaint alleging that defendants perceived plaintiff to be homosexual sufficiently set forth facts to create an inference of intentional discrimination so as to survive a motion for summary judgement. Paul Cheung and his son, Edmond, arranged via telephone with Mark Tully of Merrill Lynch's 200 Park Avenue office to open an investment account. Tully assured the Cheungs that there were no obstacles, including Paul Cheung's Canadian citizenship, that would prevent them from establishing an account. During their meeting with Tully to hand over their $100,000 check, discuss investing options, and sign power of attorney documents, Tully briefly left the conference room where they were meeting. Branch Manager Frank Sullivan entered, became hostile, and demanded that plaintiffs state their business. Sullivan briefly examined Paul Cheung's Canadian passport and left the room. When Tully returned, he informed the Cheungs that Sullivan said they would be unable to open an account because they were not United States citizens. When the Cheungs suggested they open the account in Edmond's name, who was a U.S. citizen, Tully said Edmond had not been a citizen "long enough," and refused to discuss the matter further. The Cheungs sued Tully, Sullivan and Merrill Lynch under federal law (42 U.S.C. sec. 1981), New York State Human Rights Law, the New York City Administrative Code and New York common law, asserting that Paul Cheung was discriminated against on the basis of citizenship, race, sexual orientation and disability, in that the defendants may have believed Cheung to be HIV+. The court held that plaintiffs' allegations, together with the sequence of events, sufficiently raised an inference that the discrimination could be based on defendants' perception of Paul Cheung's sexual orientation. The plaintiffs' complaint claimed that defendants knew Paul Cheung was a homosexual because of his "appearance, mannerisms, and other factors, along with certain societal stereotypes regarding homosexuals." The court noted that although Sullivan asserted that Edmond had not been a citizen "long enough," Sullivan had no knowledge of how or when Edmond became a U.S. citizen. The court ruled that dismissal for insufficiency of claim would be inappropriate at this point. However, because the Cheungs had not served a copy of their complaint with the New York City Commission on Human Rights and the Corporate Counsel before commencing their civil court action, the claims under the New York City Administrative Code were dismissed with leave to replead. R.D.L. Wisconsin Appeals Court Upholds Homicide Conviction A unanimous panel of the Court of Appeals of Wisconsin rejected the appeal of a conviction of first-degree intentional homicide in State v. Walker, 1996 WL 12820 (Jan. 16). The victim, Michael Sneed, was killed in his apartment by the defendant, Christopher Walker. Sneed had "picked up" Walker on the street and brought him home. According to Walker's testimony, Sneed attempted to initiate sex with Walker, and when Walker was hesitant, asked, "Are you gonna make me rape you?" In the ensuing struggle, according to Walker, Walker kicked and punched Sneed, stabbed him repeatedly in the back with a kitchen knife, and put a pillow over Sneed's face when he stopped moving. Walker then decided to "take everything that had his fingerprints on it" and left the apartment, driving Sneed's car to his girlfriend's home. The medical examiner found that Sneed died as a result of "hemorrhage and exsanguination from the stab wound to the heart, associated with manual strangulation." The jury was instructed on self-defense as well as first and second degree intentional homicide, and rendered a guilty verdict on first degree. On appeal, Walker claimed, inter alia, that the evidence did not support the conviction and should be set aside as a matter of law. For the appeals court, the issue was whether a "reasonable jury" could convict on the evidence, and the court found it easy to resolve this question against Walker: "The evidence in this case demonstrates that Walker caused Sneed's death. This element is undisputed. There is also evidence from which a reasonable jury could infer that Walker formed the requisite intent to kill. He thrust a deadly weapon into the chest of another human being. He took no action to attempt lifesaving procedures. If strangulation was the cause of death, Walker must have been choking Sneed for four-to-five minutes. Finally, there is evidence from which a reasonable jury could infer that Walker did not act in self-defense, particularly that the deadly force inflicted was not necessary. Walker could have told Sneed he was not interested in a homosexual encounter. The jury could have inferred that Walker had an opportunity to leave Sneed's apartment or that Walker could have inflicted a lesser force to enable him to get away, without killing Sneed. In addition, a jury may have inferred that Walker killed Sneed in order to steal from him, based on the numerous items Walker took from the apartment." A.S.L. First Degree Murder Conviction Upheld for Killing Girlfriend's Lesbian Lover The Washington Court of Appeals, in State v. Millante, held testimony that the defendant planned to kill the victim because she was involved in a lesbian relationship with the defendant's girlfriend sufficient to support the defendant's first-degree murder conviction. 1995 WL 766331 (Dec. 29, 1995). A jail inmate testified that the defendant, after his arrest, had said that the victim was a "no account bitch" for having the relationship, and that defendant "ended it." The defendant had participated as a middleman in many drug deals involving the victim. On the night on which the victim was murdered, the defendant invited the victim to meet him at the location, the defendant's sister's home, at which they customarily accomplished their drug transactions. Instead of completing a drug deal, though, the defendant murdered the victim and stole the cash she brought with her for the fictitious transaction. The jury rejected the defendant's claim of self-defense. R.M. Second-Degree Murder Conviction Upheld for Killing Gay Lover of Girlfriend's Son Affirming the defendant's second-degree murder conviction, the Missouri Court of Appeals, in State v. Pounders, held that the trial court properly refused the defendant's proposed instruction on the use of force in defense of a third person. 1996 WL 7212 (Jan. 10). The defendant, his girlfriend, her 18-year-old son, and the victim were in the defendant's motor home. The girlfriend's son and the victim were involved in a gay relationship. The defendant asserted that he had been defending the girlfriend's son when he killed the victim. Rejecting the claim, the court observed that, under the defendant's own evidence, the victim merely clenched his fists and "started" to stand up after being confronted by the defendant regarding the victim's relationship with the girlfriend's son. At that point, defendant had ordered the girlfriend and her son to leave the motor home, and they had done so. The defendant then struck the victim on the head with a roofing hammer. The court concluded that no real or apparent necessity existed for the defendant to kill in order to protect the girlfriend's son. R.M. New York Court Accepts Male Rape Trauma Syndrome A New York State Supreme Court judge has extended recognition of rape trauma syndrome to include male survivors of sexual assault. People v. Yates, N.Y.L.J., Jan . 4., p.26, col. 2 (N.Y.Co.). The prosecution claimed that, following a consensual "homosexual incident," the defendant, Richard Yates, attempted to extort money from the complainant by threatening to accuse him of rape, thereby revealing his homosexuality. Yates claimed that he had in fact been raped and his subsequent actions were lawful efforts to seek compensation. The defense sought to introduce evidence of male sexual assault syndrome to strengthen its case; the prosecution moved to exclude such evidence as unreliable or to require a pre-trial hearing on the subject. Justice Felice Shea described the basic evidentiary rule that expert testimony relating to scientific evidence is admissible only if it is generally accepted as reliable by the relevant scientific community. Reliability can be established based on judicial precedent or a pre-trial hearing. Evidence of rape trauma syndrome has been ruled admissible where the rape survivor is female, however, under New York law, a male cannot be raped. The prosecution argued that this distinction, as well as other differences between males and females, placed male survivors of sexual assault outside the scope of the New York rulings on rape trauma syndrome. The court examined judicial acceptance of a syndrome associated with sexual assault, observing that evidence of a child sexual assault syndrome had been held admissible under the existing rule, regardless of the gender of the child. The court then cited numerous studies and articles, including one from the Advocate, a gay newsmagazine, describing the male syndrome as extremely similar to its female counterpart. Without deciding the potential equal protection issues in the case, but noting the trend away from gender-based classifications, the court ruled that the legal authorities, scientific writings, constitutional doctrine and logic all required dismissal of the prosecution's motion and admission of the syndrome evidence. The opinion states that this decision is only the second reported case on this issue, the first being State v. Borchardt, 478 N.W.2d 757 (Minn. 1991), which upheld the trial court's discretion to reject the syndrome evidence. O.R.D. Warnings to Jury to Be Dispassionate Suffice to Dissipate Possible Prejudice Based on Sexual Orientation Questions In Commonwealth v. Capone, 1996 WL 20816 (Mass. App.Ct., Jan. 18), defendant was indicted for statutory rape and indecent assault and battery, both counts arising out of an evening spent with a group of young teenagers. After Capone procured alcohol for the teenagers, one boy became sick and began to throw up. Capone pulled over to the side of the road and took the boy behind a tree, out of sight. Two friends who went down at intervals to check on the boy testified to seeing Capone once with his hand on the boy's inner thigh, once with his hand on the boy's buttocks, and once with his middle finger slowly moving on the sick boy's "butt hole." One friend testified that the boy told her that he did not want Capone near him because he was sick. The trial judge initially allowed a motion to strike the indictment for insufficient proof of penetration, but decided instead to submit it to the jury on assault with intent to commit statutory rape. Capone appealed his conviction on those charges on several grounds, all of which the court of appeals rejected. Among the grounds urged by Capone was that by questioning one of the witnesses about whether Capone had alluded to his sexual orientation, the prosecution had denied Capone a fair trial. The court pointed out that Capone's sexuality was never expressly mentioned to the jury, nor was it implied that his sexuality made him more likely to have committed the crime. The court also felt that a final instruction by the trial judge that the jury not be influenced by the nature of the crime charged, and that they remain analytical, unemotional and dispassionate, sufficed to protect defendant against the deprivation of a fair trial. D.P. Lambda Appeals Asylum Denial for Russian Lesbian Lambda Legal Defense Fund has filed a federal court appeal on behalf of Alla Pitcherskaia, a lesbian from Russia presently living in San Francisco who's petition for asylum was denied in a 2-1 decision by the U.S. Board of Immigration Appeals on Nov. 13. Washington Blade, Jan. 12. Lambda served as co-counsel for Pitcherskaia's appeal from a negative decision by an immigration judge. The judge, and subsequently the appeals board, decided that changing conditions in Russia made it likely that the problems Pitcherskaia encountered in Russia would not recur upon her return. In particular, commenting on Pitcherskaia's evidence that she had been involuntarily confined to a mental institution in an attempt to "cure" her lesbianism, the Board observed that her treatment did not involve "long-term confinement or invasive therapy such as a lobotomy, electric shock therapy or administration of certain psychotropic drugs," and thus did not rise the level of persecution necessary to support an asylum petition. The board found that the treatment to which she was subjected was "based on the belief that the lesbianism is a mental illness of which she can be treated or cured. From the evidence presented, we must conclude that it was an intent, albeit misguided and inappropriate, to treat a supposed mental illness." The Board concluded that such intent did not constitute persecution. The ruling in Pitcherskaia's case raises concerns about other pending petitions from Russian lesbians and gay men, since it raises an extraordinarily high standard for petitioners to meet. A.S.L. Lesbian Mother Appeals Change of Custody in Florida The Florida appellate courts will get their first chance to join the growing debate in state appeals courts over the relevance of a lesbian mother's cohabitation with a same-sex partner to parental fitness when the First District Court of Appeal considers Mary Ward's appeal of a decision by Escambia Circuit Judge Joseph Tarbuck rendered in August. Mary Ward had custody of her 11-year old daughter after divorcing John Ward four years ago. Mary had married John nine years previously after his release from a prison term for the murder of his first wife. Last year Mary moved the court for an increase in child support payments; John responded by moving to modify the custody decree, complaining about his wife's cohabitation with a lesbian partner and presence of another lesbian couple living in the house. (It was also noted that Mary's daughter from a prior marriage was now living as a lesbian.) Finding the cohabitation and the mother's lesbian lifestyle sufficient grounds for a change of custody, Judge Tarbuck stated: "This child should be given the opportunity and the option to live in a nonlesbian world." He opined that the daughter might be influenced to become a lesbian as a result of living with her mother and her mother's lover, and ordered that she move from her mother's house to the mobile home occupied by her father and his new wife. Commented Tarbuck, "I don't think that this child ought to be led into that relationship before she has a full opportunity to know that she can live another lifestyle if she wants to and not be led into this lifestyle just by virtue of the fact of her living accommodations." Tarbuck did authorize visitation rights for Mary. Lawyers for Mary speculated that John's motivation for bringing the modification petition was actually that he found support payments burdensome. The National Center for Lesbian Rights is representing Mary on appeal, with amicus assistance from Lambda Legal Defense Fund. According to the attorneys, this will be the first case in which Florida appellate courts have to decide whether the presence of a lesbian partner in the home is per se a disqualifying factor for custody. This is an issue as to which state appellate courts are sharply split, as Law Notes readers will know from our reports of recent months. Miami Herald, Orlando Sentinel, St. Petersburg Times (all Feb. 1). A.S.L. Los Angeles Backs Down on Privacy Claim by Lesbian Police Officer A controversy arose in Los Angeles about personally invasive question to which a lesbian police officer was subjected when she filed claims about harassment on the job based on her gender and sexual orientation. The ACLU wrote to the city on her behalf, resulting in a City Attorney move to narrow the scope of questions asked "in areas involving personal relationships" and to train lawyers in the worker's compensation division on how to elicit relevant information without invading the privacy rights of claims applicants. Los Angeles Times, Jan. 20. A.S.L. Other Domestic Partnership & Marriage Notes Following up on the report issued by the Hawaii Commission on Sexual Orientation and the Law, bills were introduced and referred to committee in both houses of the Hawaii legislature to authorize same sex marriage and to establish a domestic partnership status. At the same time, bills were also filed seeking to amend the Hawaii Constitution to preclude a court ruling ordering the state to recognize same-sex marriages. The House committee moved quickly, holding hearings and rejecting both substantive proposals, as well as the proposal to amend the state constitution. In the Senate committee, the marriage and constitutional amendment proposals were also rejected, but further consideration was ordered for the domestic partnership proposal, as to which hearings were to beheld early in February. * * * Meanwhile, the Hawaii Supreme Court ruled against an attempt by representatives of the Mormon Church in Hawaii to intervene in the pending same-sex marriage case, which is now called Baehr v. Miike. In an opinion issued January 23, 1996 WL 22333, Justice Nakayama rejected the applicants' claim that the trial court abused its discretion in rejecting their application. For one thing, Nakayama found that the Church did not have "an interest relating to the property or transaction which was the subject of the action," as required by the intervention statute. The Church had argued that the outcome might endanger its state- issued license to perform marriages, because it would adamantly refuse to solemnize same-sex marriages. The court pointed out that the Hawaii statute governing who can solemnize marriages made clear that religious bodies were authorized to solemnize marriages that were consistent with the tenets and practices of their religion, and it would violate freedom of religion under the First Amendment for the state to compel them to do otherwise. Consequently, the Church's fears that it would be exposed to legal liability for refusing to perform such marriages were groundless. The court also rejected the Church's attempt to participate on discretionary grounds, dismissing as unfounded the Church's argument that the state would not adequately defend the current marriage statute in the forthcoming trial. Two more major Hollywood studies heard from: Metro-Goldwyn Mayer Inc. (and its subsidiary United Artists Pictures) and DreamWorks SKG have both announced extension of spousal benefits, including health and dental coverage, to same-sex partners of employees. In a Jan. 3 press release announcing the news, Hollywood Supports (HS), an organization formed by entertainment industry leaders to be a resource to the industry on HIV and sexual orientation issues, reported that more than 40 entertainment companies have now extended such benefits to their employees and that every major Hollywood studio (except one not mentioned in the release) has adopted such benefits. * * * In subsequent releases, HS reported that the Directors Guild-Industry Health Fund has joined the Writers Guild-Industry Health Fund in extending domestic partnership coverage for fund members. HS also reported that a major entertainment law firm, Greenberg, Glusker, Fields, Claman & Machinger, had also adopted a domestic partnership health benefits program. According to HS, Greenberg Glusker is the first major entertainment law firm to adopt such a plan, although several other significant Los Angeles firms have done so, including Latham & Watkins, Irell & Manella, and Bronson, Bronson & McKinnon. San Francisco's Board of Supervisors took a symbolic step toward same-sex marriage by approving a resolution authorizing the performance of ceremonies to solemnize domestic partnerships. The resolution was unanimously approved the measure late in January, and pending a second reading early in February was scheduled to take effect March 21. Ironically, just days later the State Assembly passed a bill, AB 1982, that would bar California from recognizing same-sex marriages contracted in other jurisdictions, by a vote of 41-31 with 7 abstentions, all the no-votes coming from Democrats. (On Jan. 26, the Los Angeles City Council approved a resolution opposing AB 1982 by a 10-1 vote.) Similar bills have been introduced in several states around the country, probably responding to a spate of national media attention to the Hawaii case that spurred anti-gay groups into action. A similar measure, H.B. 1143, passed one house of the South Dakota legislature by a vote of 49-18. In Tennessee, a state legislator managed to stall such a bill by suggesting the need for an opinion from the Attorney General on its constitutionality, in light of the state's responsibility under federal constitutional mandate to give "full faith and credit" to legal acts of other states, according to the Knoxville News-Sentinel. According to Evan Wolfson, Director of Lambda Legal Defense Fund's Marriage Project, such bills are pending or threatened in about fifteen states. And the op-ed wars rage on the issue, with many articles appearing multiple times around the country due to syndication. Alaska's House Finance Committee has approved a bill that would authorize the state to deny health and retirement benefits to unmarried domestic partners of its employees. The bill responds to a trial court ruling in Tumeo v. University of Alaska, in which the court ruled that the University was obligated under antidiscrimination policies to provide such benefits. The committee vote split exactly on party lines, with all Democrats dissenting, and one arguing that the vote was premature until the Alaska Supreme Court ruled on the state's appeal. Anchorage Daily News, Jan. 31. A lesbian legal writing instructor at the University of Pittsburgh filed a complaint with the Pittsburgh Human Rights Commission in January, charging a violation of the city's ordinance banning discrimination on the basis of sexual orientation. The complaint is based on the University's refusal to extend health care coverage to the instructor's partner on the same basis as it is extended to faculty spouses. Deborah Henson alleged that opposite-sex partners of University employees can obtain the benefits easily, because the University requires no proof of marital status and Pennsylvania has liberal common law marriage rules. Henson is represented by the Pittsburgh Chapter of the ACLU. Pittsburgh Post-Gazette, Jan. 11. A.S.L. Law & Society Notes The Olathe School District in Kansas has decided not to appeal a decision by the U.S. District Court in Case v. Unified School District No. 233, 1995 WL 708288, in which the court found that the District violated the 1st Amendment when the schools superintendent and school board determined not to accept the donation of copies of a lesbian novel, Annie on My Mind, based on its content. The District's committee of librarians had determined that the book was of literary merit for addition to the school libraries, after copies were donated by a gay rights group. The Washington Blade reported that the district announced in a Dec. 28 press release that it would abide by the ruling of the court rather than spend community resources on an appeal. The press release also noted that the school's insurance coverage was not large enough to cover further litigation on the matter. In a final vote taken Jan. 23, the Virginia Housing Development Authority bowed to the wishes of Gov. George Allen and voted to reverse a 1994 policy that had extended eligibility for housing loans to unmarried couples, whether opposite-sex or same-sex. The Authority members voting for the change said they were doing this to promote the "traditional" family. Dissenting in the 6-2 vote, Commissioner Albert C. Eisenberg said, "This is bigoted nonsense elevated to state policy. You have no reason and no right to hurt the people this proposal would deny." According to a report in the Washington Post (Jan. 24), federal officials are scrutinizing the policy change. The Post reported that an unnamed lawyer at the Federal Reserve Board said that discrimination on the basis of marital status generally violates federal fair housing law, and a spokesperson for the Federal Housing Administration, Alex Sachs, said that FHA would review its relationship with the Virginia agency as a result of this vote. Domestic violence within a gay male relationship erupted in Akron, Ohio, last October, when Christopher Ruple killed Jody Van Buskirk, beating him to death with a two-by-four board during a dispute between the former domestic partners whose relationship was breaking up. On Jan. 23, Ruple was sentenced to 10-25 years in prison by Summit County, Ohio, Common Pleas Judge Beth Whitmore. Ruple's attorney and police investigators agreed that it was Van Buskirk who first picked up the two-by-four during the fight and started to beat Ruple with it, but Ruple managed to get hold of the board and beat Van Buskirk repeatedly (and obviously more than was necessary for self-defense). Initially charged with murder, Ruple pled guilty to voluntary manslaughter, and received the maximum sentence authorized by Ohio law. Judge Whitmore cited Ruple's "violent past" (he had previously been convicted of domestic violence in a 1993 incident involving Van Buskirk and there were numerous police reports, restraining orders, and hospital visits during the two men's relationship) and the brutality of the attack in justifying the maximum sentence. Akron Beacon Journal, Jan. 24. British researchers found that children raised in lesbian households are not more likely to turn out gay when they become adults than are children raised in non-lesbian households. The study by researchers at the City University of London studied 25 children born to lesbian mothers and compared them to 21 children raised by unmarried heterosexual mothers, most of whom had a male companion in the home. The study received international media attention during the first week in January. And, a study released in the American Journal of Psychiatry that also got widespread media play reported that the chances that a man will be gay are sharply increased if he has several older brothers. Whatever that means. . .? The San Francisco Board of Supervisors reversed an earlier decision that had denied funding to a Salvation Army operated shelter, after receiving assurances that the program would not discriminate based on sexual orientation. The openly gay members of the Board were split; Carol Migden voted for funding, but Tommy Ammiano was the sole vote against. Migden said she wanted to give the group an opportunity to reform, but Ammiano said the Board was voting based on mere promises of future action, and he wanted to see reform precede the funding. San Francisco Examiner, Jan. 17. As we speculated last month, Georgia Attorney General Michael Bowers has petitioned the 11th Circuit Court of Appeals for en banc reconsideration of a three-judge panel's decision in Shahar v. Bowers, which challenges his action of withdrawing a job offer from an attorney after he discovered that she was having a commitment ceremony with her lesbian lover performed by a rabbi. The Circuit Court held Bowers' action probably violative of the federal constitution on freedom of association grounds, and remanded for trial. A.S.L. Legislative Notes Maryland Governor Parris N. Glendening (D) has submitted a bill to the state legislature to ban sexual orientation discrimination in housing, employment and public accommodations. Although Gov. Glendening offered support for a gay rights bill considered in the previous session, this is the first time he has introduced a bill as an administration proposal. Glendening had previously supported enactment of a non-discrimination measure in Prince George's County when he was county executive, and pledged support in his campaign for governor. Four prior state gay rights bills have gone down to defeat in Maryland. Washington Post, Feb. 1. The Portland, Oregon, City Council is considering a proposal to amend the city's human rights law to add protection for transsexuals. Margaret D. O'Hartigan, a transsexual woman, addressed the Council on Jan. 10 seeking this change in the law. The matter was referred to the Metropolitan Human Rights Commission to hold hearings and make a recommendation to the Council. The city's code already prohibits sexual orientation discrimination, but does not directly address discrimination against transsexuals and transvestites, who would both be covered under O'Hartigan's proposals. Oregonian, Jan. 11. A.S.L. International Notes A gay newspaper in New Zealand reported that the government there is considering revising the Matrimonial Property Act to take account of the interests of unmarried domestic partners, and a representative from the Labour Party indicated that the party caucus would receive a proposal to submit legislation on the issue. In Italy, the Council of Pisa Province approved a resolution calling on the Italian Parliament to enact a law authorizing same- sex civil unions, and calling on municipal councils in the province to establish domestic partnership registry systems for their residents. Astride Indricane and Birgita Bohvinger were the first lesbians to marry under Latvia's democratic government, according to a news brief in the Chicago Tribune (Jan. 7). Responding to a complaint by a gay rights group in Boston that gay Jewish emigrees bound for Israel had been discouraged by a Jewish Agency Official, the Agency announced that it would distribute information about gay rights in Israel to all of its overseas officials. The announcement came after a meeting between the Jewish Agency's chief for "aliyah," Uri Gordon, and Amit Kamah, a leader in the Israeli gay rights movement. (Note: National law in Israel forbids sexual orientation discrimination in employment, consensual sodomy between adults is legal, the military does not bar service by openly lesbian and gay members, and the Israel Supreme Court has required the national airline, El Al, to treat the domestic partner of a flight attendant as having the same entitlement to benefits as a spouse. The national gay rights organization operates openly and maintains a community center in Tel Aviv, and there is a Parliamentary subcommittee headed by a prominent pro-gay activist (the daughter of a celebrated Israeli war hero) concerned with lesbian and gay issues in Israel.) The Washington Blade reported that the Supreme Court of British Columbia, Canada, has upheld Canadian Customs' seizure of gay books coming into the country bound for a gay bookstore in Vancouver. The news report said that the court found the Customs policy discriminatory, but not unlawful, but did not describe the court's rationale for its conclusion. A.S.L. Professional Notes Roberta Achtenberg, unsuccessful in her attempt to win the mayoralty of San Francisco, will be rejoining the U.S. Department of Housing and Urban Development on a temporary appointment as a senior advisory to Secretary Henry Cisneros, the San Francisco Examiner reported on Feb. 1. Achtenberg indicated that she plans to return to San Francisco permanently, but agreed to return to Washington temporarily while her son completes 5th grade at the Washington school where he is enrolled this academic year. Matt Foreman, longtime executive director of the New York City Gay and Lesbian Anti-Violence Project, has announced his resignation. Under his leadership, the Project significantly expanded its active caseload and increased its visibility locally and nationally, in recent years coordinating the national release of statistics on anti-gay hate crimes to the press. A nationwide search is being conducted for a successor. Interested persons should contact the AVP at 647 Hudson Street, New York, NY 10014. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS Supreme Court Denies Review in Massachusetts AIDS-Education Case The U.S. Supreme Court denied a petition for certiorari in Curtis v. School Committee of Falmouth, 420 Mass. 749, 652 N.E.2d 580 (1995)(No. 95-617, 64 USLW 3456 [1/9/96]). In that case, the Massachusetts Supreme Judicial Court rejected claims by the parents of high school students that the parents' and students' constitutional rights were violated when the school required students to participate in health education classes where safe sex practices were discussed and condoms were made available. The district had decided not to offer parents a veto or opt-out on participation by their children. The Massachusetts court held that this did not deprive the parents of their constitutional due process right to raise their children as they see fit, or their First Amendment right of free exercise of religion. A.S.L. Third Circuit Reverses Verdict in HIV Confidentiality Lawsuit In Doe v. Southeastern Pennsylvania Trans. Auth., 1995 WL 762891 (U.S.Ct.App., 3d Cir., Dec. 28), the court reversed a jury verdict for a plaintiff on his Section 1983 claim that the defendant's revelations of his HIV status had deprived him of his constitutional right to privacy. John Doe, a psychologist, worked for SEPTA, a self-insured state agency. Doe was prescribed with drugs specific to his HIV treatment, which he filled through SEPTA's prescription benefits plan. A SEPTA administrator responsible for reducing the amount the agency was paying for benefits reviewed reports which showed employee names and the drugs they were prescribed and later discussed the report and Doe's HIV status with other SEPTA employees. A jury found in Doe's favor, and awarded him damages. The trial court denied the defendant's motion for a new trial. See Doe v. Southeastern Pennsylvania Trans. Auth., 1995 WL 334290 (E.D. Pa. June 2); see also, Court Upholds Jury Verdict in HIV Confidentiality Case, 1995 LGLN 110. A divided three-judge panel of the Third Circuit reversed. The lead opinion, by Judge Max Rosenn, found that the record did not support a jury finding that Doe's interest in maintaining the confidentiality of the information outweighed SEPTA's interest in knowing it in order to avoid escalating health care and insurance costs. Judge Morton Greenberg concurred with Judge Rosenn's analysis and result, but disputed his interpretation of the facts of the case, and felt that the court's reading of the facts should have been more deferential to Doe, reflecting a more serious interpretation of the privacy right at stake. Judge Timothy Lewis disagreed with the result reached by his colleagues and would have found sufficient evidence in the record to support the jury verdict in Doe's favor. Given the disagreement among the judges on the panel, the case is presumably ripe for an en banc review by the Third Circuit. D.W. Federal Court Rejects Strict Liability Claim Against Catheter Manufacturer in HIV Transmission Suit In Riley v. Becton Dickinson Vascular Access, Inc., 1995 WL 771126 (E.D. Pa., Dec. 29), the plaintiff, a registered nurse, had become infected with HIV after getting stuck with the needle of a catheter she was trying to insert into the arm of a patient at a hospital where she worked. Becton Dickinson, the manufacturer of the catheter, was sued on a theory of strict liability. Riley argued that the design was unsafe for its intended use because the needle would remain exposed after it is withdrawn from the catheter, making a needle stick possible. Ruling on defendant's motion for summary judgment, the court evaluated this claim under Pennsylvania law, which requires a risk/utility analysis, and defendant's argument that the manufacturer of this devise should not, as a matter of social policy bear the costs of Ms. Riley's injury. The court granted the motion after a detailed discussion of factors which have to be considered: usefulness and desirability of the product; likelihood of cause of harm and seriousness of such injury; availability of safer substitutes; economic feasibility of a safer design; user's ability to avoid danger through proper exercise of care in use; user's anticipated awareness of dangers inherent in the product and their avoidability; feasibility of manufacturer's spreading risk of loss through pricing the product or carrying liability insurance. The court emphasized that the question was not whether the plaintiff deserved compensation for this accident, but whether the manufacturer had to bear the costs. The court engaged in a detailed discussion of the balancing test as to each of these factors and determined that Becton Dickinson should not have to bear the risk involved. The court noted that the defendant, not the plaintiff, submitted statistics as to likelihood of infection, and the court concluded that the likelihood of infection was minimal: only slightly more than the two or so incidents per year posited by the defendant. In fact, Becton Dickinson stated that there were only three instances where an HIV infection needle stick using this device were reported since 1981, a period during which it stated that it sold 1.5 billion such catheters. The court found that, while the catheter was dangerous, it was not unreasonably so, that the catheter in question was a highly desirable product which posed little risk of serious injury, and that shifting costs to the manufacturer was not justified under this analysis. The court also rejected a broader social policy test that would shift costs to a third party (in this case, Becton Dickinson) as inapplicable on the same grounds, particularly where Pennsylvania public policy, as embodied by the Worker's Compensation Statute provided Ms. Riley a remedy by shifting the costs of this work related injury to her employer. S.K. Federal Court Refuses to Dismiss Discrimination Claim Against Surgeon Who Delayed Operation of HIV+ Patient In Sharrow v. Bailey and Williamsport Hospital, 1995 WL 775354 (M.D.Pa., Nov. 17), the Judge McClure of the U.S. District Court denied the defendants' motions to dismiss plaintiff's claims of HIV-related discrimination under the Americans With Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973. The court granted their motions to dismiss claims of intentional infliction of emotional distress and medical malpractice, however. Bailey was Sharrow's orthopedic surgeon. Sharrow, twice amputated below the knew, required surgery on an infected rod which had been inserted during his amputations. According to Sharrow, Bailey delayed his leg surgery by one day because of Sharrow's HIV+ status. He requested that the hospital supply him and his staff with protective suits, but the hospital refused. Another doctor performed the surgery the day after it was originally scheduled. The court first noted that professional offices of health care providers are places of public accommodation under the ADA. Bailey argued that since he did not refuse Sharrow service at his office, he could not be liable under the statue. The court rejected that idea, holding that "[t]o superimpose on the statute a requirement that the plaintiff must present himself or herself at the defendant's place of business and there be denied service or receive unequal service would be illogical and contrary to the underlying intent of the Act." Under Bailey's view, a doctor who refused a disabled person service over the telephone, rather than in the office, could not be liable under the statute. "Congress plainly did not intend the ADA to apply only to those persons who enter a physical structure." Under the Rehabilitation Act, no "program or activity" receiving federal funding may discriminate against an otherwise qualified individual on the basis of his or her handicap. The court denied Bailey's motion to dismiss on jurisdictional grounds, because no discovery had yet been conducted that might reveal evidence to contradict Bailey's claim that none of his patients received federal assistance such as Medicare or Medicaid. If any of his patients received such assistance, Bailey could be liable under the Act. The court granted Bailey's motion to dismiss Sharrow's claim of intentional infliction of emotional distress because the conduct here had not reached a sufficient level of outrageousness even under the less stringent standard applied to relationships of "trust and confidence" like that of doctor and patient. The court denied the hospital's motion to dismiss the claims against it, which were stated under a vicarious liability theory, because no discovery had been conducted that might reveal facts to cast doubt on the hospital's claim that Bailey had only staff privileges. The court granted defendants' motion to dismiss the claim of medical malpractice without analysis. M.S.R. Federal Court Rejects HIV+ Prisoner's Bid for Early Release U.S. District Judge Charles Sifton rejected a New York State prisoner's contention that his constitutional rights were denied when his application for a temporary release was rejected by prison authorities. Jerrell v. New York, 1996 WL 19173 (E.D.N.Y., Jan. 12). Jerrell was convicted of first-degree burglary and second- degree robbery in 1986, and was sentenced as a "persistent violent offender" under the N.Y. Penal Law. He is scheduled to be released on parole in December 1996. He applied for temporary release in 1994 but was rejected on grounds that his petition was premature. He filed again in April 1995, but this time was denied due to new, tightened eligibility criteria promulgated by Governor Pataki, which he did not meet. Jerrell then sued in federal court, claiming that as a "long-term, terminally ill prisoner with a positive prison record" he had suffered constitutionally cognizable unfairness by the rejection of his application. Judge Sifton found that the state law creating the temporary release program specifically denominates participation a "privilege" rather than a right, so Jerrell could not base his claim on a due process liberty interest. As to equal protection, Sifton found that the rejection was subject to rationality review, and that the criteria established by the government for participation were rational and reasonably related to New York's penal interests. While conceding that Jerrell's HIV status gave him a "strong interest in being released from prison at the earliest possible date," Sifton found that Jerrell had alleged "no facts from which it can be inferred that the state was motivated by discrimination in enacting the criteria petitioner seeks to challenge." Of course, an equal protection claim requires a showing of intentional discrimination. Jerrell had also requested a default judgment because the government failed to put in its answer in time, but Sifton found that Jerrell had not been prejudiced and that the state's tardiness was due to a "large workload." Such is justice in New York. A.S.L. Federal Court Affirms Rejection of Disability Benefits for PWA Evidencing the tightening of eligibility requirements for Social Security Disability benefits, U.S. District Judge Robert P. Patterson, Jr. (S.D.N.Y.) affirmed a determination by the Social Security Administration that Kenneth Brakett was not eligible for disability insurance benefits or supplemental security income under federal law. Brakett v. Chater, 1996 WL 26579. Brakett applied for benefits in December 1992, having ceased work on October 31 of that year, claiming permanent inability to engage in substantial gainful activity. Brakett's health problems include severe chronic obstructive pulmonary disease, emphysema, asthma, a history of polysubstance abuse, peripheral neuropathy and pain secondary to alcohol abuse, hepatitis C, depression, and HIV-related sickness, including AIDS wasting syndrome. According to his physician, he was not capable of standing more than two hours a day or lifting more than ten pounds. He walks with a cane. However, after a hearing, ALJ Herbert Rosenstein determined that he was capable of performing "sedentary work" and was thus not permanently disabled within the meaning of the statute. On appeal to the district court, Judge Patterson applied the "substantial evidence" test and found that although Barkett's physician had noted on his medical record that he was "unable to work due to severe COPD and Asthma," the physician had also found and noted on records that Brakett could "sit without limitation, walk and stand for up to 2 hours in an 8 hour workday, and lift/carry up to 10 pounds." Thus, there was evidence in the record to support the ALJ's conclusion, which must be affirmed. * * * In an unrelated case, U.S. District Judge Dearie reversed and remanded another decision concerning denial of disability benefits to a person with HIV-infection. Felder v. Chater, 1995 WL 745018 (E.D.N.Y., Dec. 4). Judge Dearie found that the ALJ was mistaken in applying a regulation concerning eligibility of HIV-infected persons, by failing to recognize that the pneumonia for which the applicant was treated was clearly on the list of HIV-related complications that would trigger eligibility for disability benefits under the Social Security Act. A.S.L. Nebraska Supreme Court Leaves Foster Child with PWA Mom The Nebraska Supreme Court denied review of In re John, 538 N.W.2d 761 (Neb.App. 1995), in which the state's court of appeals held that a woman with AIDS could continue as custodian of a foster child. The lower court had overruled a decision by the Nebraska Department of Social Services, which sought to move the child when it learned that the foster mother had AIDS and which had won the first stage of litigation at the trial court. The appeals court found that the potential disruption to the child's life by changing custody at present significantly offset any future disruption due to the mother's illness. Washington Blade, Jan. 12. A.S.L. Federal Court Finds Jury Issue on Whether HIV+ Insurance Applicant Defrauded Insurer by Asserting He Was Healthy The issue of whether an individual who has tested positive for HIV, and who states on an application for disability insurance that he or she is "in good health to the best of my knowledge and belief," thereby commits fraud is a question of fact for the factfinder ruled U.S. District Judge Lewis A. Kaplan, denying a motion for summary judgment in Berkshire Life Ins. Co. v. Owens, 1996 WL 11198 (S.D.N.Y. Jan. 11). Richard Owens obtained disability insurance coverage from Berkshire Life in February 1991. In September 1991, Owens tested positive for HIV. The policy was maintained until May 1992 when it lapsed for nonpayment of premiums. In October 1992, Owens applied for reinstatement of the policy. On the application, Owens represented that he was in good health to the best of his knowledge and belief. Owens subsequently became ill and filed a claim against his disability policy. A routine investigation revealed that Owens knew of his HIV status at the time of his reinstatement, and coverage under the policy was denied. Berkshire Life brought a declaratory judgment action asking that the policy be rescinded. Owens counter-claimed for breach of contract. In his deposition, Owens maintained that when he applied for reinstatement of the policy he felt perfectly healthy and had not consulted a physician for the HIV infection. Both sides moved for summary judgment on the issue of coverage. Both sides submitted affidavits of experts on HIV and AIDS. Berkshire's expert characterized HIV as a debilitating disease without a cure. Owens' expert stated that someone with HIV who believes that he is and will stay health is hopeful but not naive. Judge Kaplan found that statements about one's own health are statements of opinion and not statements of fact. The issue is whether a person can, in good faith, believe he was justified in giving the answer he did. In light of the conflicting experts' affidavits, Kaplan found a genuine issue of material fact and denied summary judgment. The judge noted that cross-examination of both experts might prove revealing on this issue. Who knows? In front of a Manhattan jury, anything could happen. T.V.L. Oregon Supreme Court Orders Trial on AIDS Insurance Claim The Supreme Court of Oregon ruled on December 29, on very narrow facts, that state law claims for breach of contract and bad faith against a health insurer are not pre-empted by ERISA. Shaw v. PACC Health Plan, Inc., 908 P.2d 308. During 1990, Ronald Shaw's employer decided to obtain health insurance for her employees effective January 1, 1991. In August 1990, the employer submitted medical history forms for all of her employees to a broker for submission to an insurance carrier. The insurance carrier approved the plan and provided an estimate for the cost of coverage. During the fall, the employer reviewed this proposal along with proposals from several other carriers, including PACC Health Plans, Inc. The employer's review indicate that PACC was going to be a better deal than the other carrier. Consequently, on December 26, 1990, the broker gave the employer an application for PACC's health plan. Rather than having her employees complete updated medical history forms, the employer simply re-dated the forms completed in August. PACC received the application and gave it preliminary approval on January 2, 1991. Prior to final approval, Robert Shaw, one of the employer's employees became ill and was hospitalized with pneumocystis, a condition that often occurs with people who have AIDS. Shaw then tested positive for HIV. Shortly after Shaw was admitted to the hospital, a PACC employee who visited the hospital to pick up claim forms, suspected that Shaw might have AIDS and reported her suspicions to PACC. On January 16, 1991, PACC denied the employer's application for insurance and did not cover any of Shaw's hospitalization in January 1991. Shaw sued his employer, the broker and PACC alleging breach of an oral promise; negligent processing of the application; and bad faith. Shaw settled with his employer. His claims against PACC were dismissed on a motion for summary judgment finding that the claims were pre-empted by ERISA. The claim against the broker went to trial and the jury found for the broker. Shaw appealed PACC's summary judgment to the Court of Appeals, which upheld the ruling 2-1. Shaw appealed to the Supreme Court of Oregon, which reversed the lower court's decision. The issue of pre-emption turns on whether a health plan was "established" for the purposes of ERISA. Finding that final approval of the plan is necessary to "establish" a health plan under ERISA, the court found no pre-emption and remanded the case for a determination of Shaw's state law claims. T.V.L. Massachusetts Appeals Court Reverses Rape Verdict Due to AIDS- Panicked Trial Judge Setting aside rape, assault and battery verdicts entered against Edward T. Martin, the Appeals Court of Massachusetts found that the trial judge had made several errors in handling the issue of HIV and AIDS in the trial. Commonwealth v. Martin, 1996 WL 30622 (Jan. 24). According to the complainant's testimony, Martin, a former boyfriend who was incarcerated, told her on the telephone that he was HIV+ and had AIDS. Complainant purchased a train ticket to Las Vegas to be sure she was out of town on Martin's prison release date, which she thought was May 27, 1991. But he showed up at her apartment building in the early morning hours of May 17, forced himself in, and raped and beat her repeatedly. In his defense, Martin claimed that their sex was consensual and that her bruise marks were due to an altercation with another man earlier in the day. At trial, the defense objected to the prosecutor asking the complainant about the telephone conversation concerning the defendant's HIV-status as irrelevant to the issue of consent. The prosecution argued it was relevant because if complainant believed Martin was HIV+, it is unlikely she would have consented to unprotected sex. On the stand, complainant gave her story, and testified that when Martin ejaculated in her, she believed she would catch AIDS and die. The appeals court found that this testimony was admissible, but only if the court instructed the jury about its limited relevance and warned them not to let this information prejudice them against the defendant solely due to their belief about his HIV-status, which was not done. During the trial, the judge was contacted by a court officer, who told him that the defendant had become very upset about how the trial was going and cut himself on the hand. Alarmed by this development, the judge concocted his own theory that the defendant had a plan to create a mistrial by seizing his attorney and using his blood to create an incident in the courtroom. The next day, over objection by defense counsel, who asserted that she needed no protection from the defendant, the judge ordered restraints placed on the defendant and an obstruction placed between defendant and his counsel. At the close of trial, the judge told the jury that certain physical evidence was wrapped in plastic and that if they wanted to handle it during deliberations, he would have gloves supplied to them. Finally, he gave the jury a written copy of his charge, without following normal procedures in Massachusetts of getting agreement of both parties, and the charge omitted his statements about the gloves. The defendant did not testify at trial. The court of appeals concluded that Martin had not received a fair trial, based on all these incidents. The court particularly noted that by offering the jury gloves to examine the physical evidence, the judge was communicating his view that defendant was HIV+, as to which the only evidence before the court was the hearsay testimony of the complainant, which was attacked as to credibility by several witnesses for the defendant. The court found all the other matters recounted above problematic, but the gloves incident seemed the worst. "We recognize that the case against the defendant was strong," wrote Judge Smith for the court. "We are also aware that the jury did find the defendant not guilty of one rape. [He was charged with having raped the complainant twice.] However, the cumulative effect of the several errors leads us to one conclusion -- the defendant did not receive a fair trial." A new trial was ordered. A.S.L. NY Trial Court Refuses to Drop Criminal Charges Against PWA for Selling Marijuana for Medicinal Purposes New York City Criminal Court Judge Robert Stolz refused to drop criminal charges against John Moore, a person with AIDS, for criminal sale and unlawful possession of marijuana. Denying a motion for dismissal in the interest of justice in People v. John Moore, NYLJ, 1/31/96, at 27, col.3 (N.Y. County), Stolz reviewed the various factors established by the courts for deciding such dismissal motions and concluded that the "necessity defense" argued on behalf of Moore did not provide a sound basis for granting the motion. Moore was arrested on August 21, 1995, while making a marijuana sale in Washington Square Park in Manhattan. Moore contended that he distributed marijuana "at cost" to other PWAs after acquiring his own experience of therapeutic help from its use. Moore stated that he began using marijuana to treat some of his chronic symptoms, including pain, nausea and lack of appetite, and discovered that it was effective for these purposes. Moore claimed that he only sold to those who could document their medical need. Reviewing the factors for granting such a motion, Stolz found that the crimes charged were serious, that Moore was totally without credentials to be engaged in medical distribution of marijuana, and that while he might be "well motivated" if his story was true, there could be serious harm in the court condoning his activities by dismissing the charges. Furthermore, despite his AIDS diagnosis, Moore's own physical condition was not such that it was necessary to refrain from imposing a sentence in the interest of justice, as such motions are usually granted only when the defendant is in extremely poor health. Consequently, the motion was denied. A.S.L. New York Proposes New Regulations on Newborn Testing The New York State Register of December 13 carried the State Health Department's proposed regulations to implement the settlement agreement in a lawsuit that challenged the state's failure to mandate disclosure to mothers of the HIV test results from their newborn children. New York currently has a blinded seroprevalence survey program, under which each newborn is tested for HIV on an anonymous basis in order to compile epidemiological data. The proposed regulation mandates that all women who come in for prenatal care be counselled to consent to HIV testing for themselves, and be referred for proper treatment if they test positive. In addition, the regulations mandate that HIV-status information on the mother be transferred to the newborn's medical chart, and that mothers of newborns be counselled and encouraged to consent to HIV testing for their child. The mother's response must be noted on the hospital record, and if the mother does not respond, the physician may perform a risk factor assessment and perform unconsented testing on the child if the physician determines that an emergency exists. The crucial sentence is as follows: "If the mother has neither consented nor refused consent, and the physician makes a determination before discharge that an emergency exists, and the infant is in immediate need of medical attention and an attempt to secure consent would result in delay of treatment which would increase the risk to the infant's life or health, then the physician may order the HIV newborn test to determine whether the infant has been exposed to the HIV virus [sic] such that testing would address the emergency and therefore would be necessary to preserve the life or health of the infant, and would assist in future treatment and follow-up care." This sentence lends itself to the interpretation that a very narrow set of circumstances would justify unconsented testing of the newborn, but many of the key phrases leave considerable room for interpretation. The regulation also provides that if a positive test is obtained, the child and mother should be referred for appropriate follow-up treatment. The proposed regulations were published for public comment, but no public hearings were scheduled. A final version of the regulations would have to be published before they can go into effect. A.S.L. Funeral Home Settles Discrimination Claims The Fisher Funeral Home in Portsmouth, Virginia, has settled claims that it discriminatorily charged extra fees for embalming persons who died from AIDS. According to a Jan. 19 report by the Association Press, the settlement, by which the Funeral Home agrees to stop making the surcharges and pays refunds and damages to those who had been surcharged, was the first obtained by the government against a Funeral Home under the Americans With Disabilities Act, which treats funeral homes as places of public accommodation. New York Times, Jan. 20. A.S.L. Settlement Announced in Charon Case The ACLU AIDS & Civil Liberties Project announced Jan. 23 a settlement in the long-running litigation concerning the refusal of services by an Ohio hospital to the late Fred Charon, a person with AIDS. A federal jury had found that the hospital violated the Rehabilitation Act of 1973, and awarded $512,000 in compensatory and punitive damages in 1994, and the trial judge subsequently found that the same conduct also violated the Americans With Disabilities Act. The case was settled on behalf of Charon's estate for $350,000. The case was tried by ACLU staff attorney Marc Elovitz with cooperating attorneys for the ACLU of Ohio, Ellen Simon of Cleveland and Doris Wohl of Toledo. A.S.L. AIDS Law & Society Notes In an article distributed by Scripps Howard News Service and published in various newspapers on Jan. 22, Lisa M. Krieger reported that the detection of strains of HIV not previously found in the U.S. in five young male sailors and Marines, apparently acquired from female prostitutes in Thailand and Africa, have fueled speculation that the "heterosexual AIDS epidemic" in Africa and Asia may be about to make the jump to the United States. Although some AIDS experts were quoted as dubious that the prevalence of heterosexual transmission in Africa and Asia is due to different strains of the virus, research at the Harvard AIDS Institute suggests that the strains isolated from the military personnel may be more easily transmitted through vaginal intercourse than the strains now commonly seen in the United States, due to the cells they more easily infect. While the experts continue to debate, efforts by AIDS activists around the country to improve prevention and education programs by promoting condom use and more sexually explicit AIDS education continue to encounter religious and moralistically based opposition from public education authorities. The latest example was the move by New York City's new schools chancellor, Rudy Crew, to reopen the previously- settled issue of condom instruction in schools by ending the practice of including demonstrations on condom use in regular health education classes. After almost 15 years of an epidemic, some folks still don't get it. . . On the other hand, Dr. Anthony Fauci, Director of the National Office of Allergy and Infectious Disease, responding to a report on epidemiological trends presented Jan. 30 to a scientific conference in Washington, said that "the epidemic is on the wane." The cause of this remark was a finding that the number of new AIDS cases diagnosed annual are now fewer than the number of AIDS deaths annually; thus, the combination of better treatment and prevention efforts has led to a plateau in the number of people living with AIDS. Of course, Fauci continued, "the epidemic is plateauing at an unacceptably high level so efforts must continue to reduce new infections and find improved treatments." Washington Times, Feb. 1. On the treatment front, the same conference produced the first cheerful news in some time, with reports that new protease inhibitor drugs seem to be much more effective than previously approved treatments in slowing the progress of HIV-infection toward health collapse. The new drugs are still in an experimental stage, but early tests are very promising, according to news reports. New York Times, Feb. 2. Led by Rep. Robert Dornan (R.-Calif.), conservative Republicans in the House of Representatives succeeded in adding to the Defense Appropriations bill a requirement that all HIV+ servicemembers be discharged. When President Clinton vetoed the bill in December, he cited this provision among many with which he disagreed. However, in the ensuing negotiations over a revised bill, the Republicans stood firm on this provision, and the bill passed Congress again with the discharge requirement intact. Late in January, the White House outraged AIDS activists by announcing that the President would reluctantly sign the bill, because to veto it would further delay an overdue pay raise for military personnel. Dornan claimed the bill was necessary because HIV+ servicemembers are not available for overseas assignment. The Pentagon disputed this, noting that it has a significant training investment in these members for whom there is plenty of stateside work to do, but recommended signing the bill in order to get the pay raise and fund various other projects that have been on hold. Editorial response in the national media was almost uniformly condemnatory of this provision, pointing out that there are thousands of military members with other illnesses and debilitating conditions who are allowed to remain in the service until they become too disabled to work. Illustrating the point, the Washington Post published an article Feb. 1 highlighting the plight of a widowed female staff sergeant, who contracted HIV from her late husband, has been in the Army for 10 years with an excellent record (and is in line for an important promotion), has children to support, and will be mandatorily discharged under this provision. The Defense Department says that about half the members who will be subject to discharge under this provision are married. Dornan's response was, essentially, tough luck; the military shouldn't have to employ people who are not available for international deployment. But there were reports early in February that a bipartisan group in the Senate led by Maine Senator William Cohen was attempting to secure introduction of a narrowly-focused bill to repeal the discharge provision before anyone would have to be dismissed. That a party witness is HIV+ is not, standing alone, reason for a protective order in civil litigation barring the opposing party from requiring the witness to travel to attend a deposition, ruled Federal Magistrate Judge Rushfelt in Tolon v. Board of County Commissioners of Johnson County, Kansas, 1995 WL 761452 (D.Kan., Dec. 18). Although the witness's attorney "avers that she is in `poor health, having been diagnosed as HIV positive,'" Rushfelt wrote: "That she may be HIV positive does not constitute good cause for relocating her deposition. She must reveal additional details about her condition. The life styles of persons diagnosed as HIV positive run the gamut from being bedridden to perfectly normal. The court will not speculate. Plaintiffs have not carried their burden to show good cause." A.S.L. International Notes Ethiopian Jews in Israel gathered in front of the Prime Minister's office on January 28 to protest the policy of Israeli blood banks of discarding blood donated by members of that group. According to press reports, the blood banks took that action because of a reported higher incidence of HIV-infection in donated blood from Ethiopians than from the rest of the Israeli population. Since blood drives focus on the Army, blood bank officials decided to label and quietly discard the blood rather than embarrass Ethiopian Jews in the armed forces by blocking them from donating blood. (American blood banks briefly took the opposite approach with respect to Haitian blood donors early in the epidemic, blocking them from donating, but then backed off after protest demonstrations.) When police attempted to disperse the demonstrators with water hoses and tear gas, the demonstration turned into a riot that garnered international headlines. New York Times, Jan. 29. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS ANNOUNCEMENTS More than 40 lawyers and law students attended a CLE program sponsored by the North Carolina Gay and Lesbian Attorneys (NC GALA) in Greensboro on Jan. 27. The program manuscript features extensive articles on estate planning, family law, bankruptcy, Social Security disability for PWAs, and standby guardianship for HIV+ parents. The manuscript is available by sending a check for $45 (payable to NC GALA) to John Boddie, Suite 300, 806 Green Valley Road, Greensboro, NC 27408. Copies of the 1996 edition of the NC GALA Legal Guide (a non-technical explanation of current legal issues for the general gay and lesbian public) are also available at the same address for $13.50. LESBIAN & GAY & RELATED LEGAL ISSUES: Armour, Jody, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit, 83 Cal. L. Rev. 733 (May 1995). Chapman, Anna, Sexuality and Workplace Oppression, 20 Melbourne U. L. Rev. 311 (1995). Gerhardt, Michael J., and Tracey Maclin, Mock Arguments in Romer v. Evans, 4 Wm. & Mary Bill of Rts. J. 639 (Winter 1995). Minow, Martha, The Constitution and the Subgroup Question, 71 Indiana L. J. 1 (Winter 1995). Pierce, Christine, Gay Marriage, 26 J. Social Philosophy No. 2, 5 (Fall 1995). Raz, Joseph, Rights and Politics, 71 Indiana L.J. 27 (Winter 1995). Rickel, Alice, Extending Employee Benefits to Domestic Partners: Avoiding Legal Hurdles While Staying in Tune With the Changing Definition of the Family, 16 Whittier L. Rev. 737 (1995). Rogovin, Wendy M., The Politics of Facts: "The Illusion of Certainty," 46 Hastings L.J. 1723 (Aug. 1995). Waks, Jay W., and SaraJane Steinberg, Courts Now find Same-Sex Harassment to Be Actionable, but They Vary on the Relevance of a Defendant's Sexual Orientation, Nat'l L. J., 1/8/96, p. B4. Wellington, Adrian Alex, Why Liberals Should Support Same Sex Marriage, 26 J. Social Philosophy No. 3, 5 (Winter 1995). Zanghi, John S., "Community Standards" in Cyberspace, 21 U. Dayton L. Rev. 95 (Fall 1995). Zuckerman, Ann J., Sexual Orientation in the Workplace: Gay Men, Lesbians, Bisexuals, and Heterosexuals Working Together (Thousand Oaks, CA: Sage Publications, 1995) (workbook on producing a gay- friendly environment in the workplace). Student Notes & Comments: Bedarf, Abril R., Examining Sex Offender Community Notification Laws, 83 Cal. L. Rev. 885 (May 1995). Chiu, Dennis W., Obscenity on the Internet: Local Community Standards for Obscenity Are Unworkable on the Information Superhighway, 36 Santa Clara L. Rev. 185 (1995). DeMangin, Tiffany, A Constitutional Challenge to the Texas Hate Crime Act, 32 Houston L. Rev. 1091 (Winter 1995). Handelman, Eric, Obscenity and the Internet: Does the Current Obscenity Standard Provide Individuals with the Proper Constitutional Safeguards, 59 Albany L. Rev. 709 (1995). Laskowska, Malgorzata K., "No Sinners Under My Roof": Can California Landlords Refuse to Rent to Unmarried Couples by Claiming a Religion Freedom of Exercise Exemption From a Statute Which Prohibits Marital Status Discrimination?, 36 Santa Clara L. Rev. 219 (1995). Phelan, Tara, Selective Hearing: A Challenge to the FCC's Indecency Policy, 12 NYLS J. Hum. Rts. 347 (Spring 1995). Revealing the Bare Uncertainties of Indecent Exposure, 29 Col. J. L. & Soc. Prob. 85 (Fall 1995). Book Reviews: Kirp, David L., Are You Now, Or Have You Ever Been, a Homosexual?, 11 Tikkun No. 1, 97 (Jan/Feb 1996)(review-essay on Bawer's A Place at the Table, Preston's Winter's Light, Sullivan's Virtually Normal, and Vaid's Virtual Equality). Specially Noted: The Economist, a British newsmagazine with international distribution, featured a same-sex couple in wedding garb on its cover this month to accompany a story arguing in favor of governmental recognition of same-sex marriage. The arguments sounded much like those advanced by the British-born editor of The New Republic, Andrew Sullivan, in a cover story he wrote for that magazine several years ago (and The New Republic was not shy about the matter, running a comparison of the two cover pages the week after The Economist issue hit the newsstands. AIDS & RELATED LEGAL ISSUES: Kirby, Michael, AIDS and the Law -- A New Challenge for Human Rights, 20 Commonwealth L. Bull. 1457 (Oct. 1994)(writer was recently nominated for the High Court of Australia). Loue, Sana, Living Wills, Durable Powers of Attorney for Health Care, and HIV Infection: The Need for Statutory Reform, 16 J. Legal Med. 461 (Dec. 1995). Student Notes & Comments: Pomeranz, Sharon, Condoms Overturned on Appeal: Teens Stripped of Their Rights, 4 Amer. U. J. Gender & L. 219 (1995). Editor's Note: Correction: In reporting the appointment of Michael Kirby to the High Court of Australia, we stated that appeals from that court went to the House of Lords in London. We are informed by our Australian correspondent and some American readers that appeals to London were abolished some years ago, and the High Court is presently the court of last resort for Australia. * * * 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. Letters to Law Notes for February 1996 To the Editor: Professor Arthur S. Leonard, in his discussion of the recent 11th Circuit decision in the case of Shahar v. Bowers in the January 1996 issue of Lesbian/Gay Law Notes, states that the judges comprising the 3-judge panel which heard the case were appointed by "liberal Democratic presidents," and cautions against optimism concerning the outcome of any en banc reargument because most of the 11th Circuit's judges were appointed by Presidents Reagan and Bush. Even apart from the question of whether the Democratic presidents to which Professor Leonard refers -- Lyndon Johnson and Jimmy Carter -- can accurately be described as liberal, Professor Leonard's equation of caution is far too simplistic. For example, Byron White, who wrote the anti-Gay majority opinion in Bowers v. Hardwick, was appointed to the Supreme Court by President Kennedy. It was a Nixon appointee, Harry Blackmun, who wrote the stirring and pro-Gay dissenting opinion. President Bush's judicial nominees include David Souter, who as a justice of the New Hampshire Supreme Court ruled that in most cases discrimination against Gays in employment is irrational. Moreover, it is basic constitutional law that our national government consists of three branches, not two. The president nominates, but Congress confirms. Many of President Reagan's and all of President Bush's judicial nominees were confirmed by Senates with Democratic majorities. It should go without saying that there are many grounds for concern to be found in the judicial philosophies of far too many members of the judiciary, as well as those who nominate them and those who confirm them. However, broad-brush partisan characterizations do not substitute for reasoned criticism. Sincerely, Barrett L. Brick Washington, D.C. Editor's Response: The only presidents I characterized as liberal were Carter and Johnson. When it comes to analyzing their judicial appointees on gay issues, I think that characterization can stand up quite while. Kennedy, despite his latter-day reputation, was elected as a militant cold warrior and, due to his thin, Southern- dominated Senate majority, appointed many conservative federal judges. Nixon was, on domestic politics, a centrist/pragmatist whose judicial appointments were all over the place. Among those judges who decided Hardwick, he appointed our champion dissenter, Harry Blackmun, and several of our nemeses, including Chief Justice Burger, William Rehnquist, and Lewis Powell (who has since changed his mind about that case). Justice Souter's opinion in Hurley last term was respectful toward the lesbian and gay litigants, while rejecting their attempt to be included in Boston's St. Patrick's Day Parade. On the New Hampshire Supreme Court, he was part of a per curiam court that in an advisory opinion on pending legislation rejected a proposal by the state legislature to bar gay people from being workers in child care facilities; in the same opinion, the court approved the constitutionality of a ban on lesbians and gay men being adoptive or foster parents. We wait eagerly to see what position he will take on Colorado's Amendment 2, but pending further evidence, it's not yet time to characterize his position on the kind of issues presented by Shahar v. Bowers. I agree with Barrett Brick that broadly characterizing court of appeals judges based on the politics of their appointing presidents can oversimplify things. On the other hand, I think it is a useful cautionary note, in the joyous response to such a wonderful victory in a 3-judge panel decision, to note that all three judges were appointed by liberal Democratic presidents, and that the composition of the full en banc 11th Circuit is likely to be quite a bit further to the right than was this panel. (In subsequent correspondence with me, Mr. Brick observed that among active judges of the 11th Circuit, four were nominated by Democrats and seven by Republicans. On an en banc argument, I believe that the two senior judges who participated in the panel decision may also participate, so the line-up for en banc could be six Democrats and seven Republicans (including one Ford appointee). A.S.L. * * * * * * To the Editor: We are, respectively, the Executive Director and Special Counsel of the Association to Benefit Children (ABC), one of the plaintiffs in a recently-settled lawsuit that sought expanded infant HIV testing, counseling and treatment in New York State. Professor Leonard's description of the settlement in the November 1995 Law Notes was seriously misleading. He speculated that "the provision on `emergency' testing might be interpreted to establish `de facto' mandatory testing for infants born in hospitals that serve largely minority populations." Professor Leonard's statement, first, is disturbingly paternalistic. The possibility he raises of "de facto" mandatory testing implies that most mothers of color would decide neither to obtain nor to refuse to obtain their children's HIV test results. In ABC's experience as a direct care provider, by contrast, these mothers -- like parents everywhere -- take an active interest in health care decisions affecting their children and themselves. The likely result of regulations issued pursuant to our settlement is that most mothers will choose one way or the other, thus helping to medicalize an illness that has too long been politicized. Second, his statement suggests that Professor Leonard did not carefully scrutinize the settlement (a copy of which we provided to him in advance of his write-up). Under its terms, if a mother neither consents to nor refuses to learn her child's HIV test results, doctors will have the option of performing a risk assessment for HIV to determine if a situation exists that merits an "emergency" requiring testing of the infant. At a minimum, it is exaggeration to suggest that mandatory testing would thus result; it is hardly likely that every infant of color's medical history would compel such a result. Moreover, the risk assessment in any such emergency situation would follow criteria developed by the medical community in the late 1980s. In foster care settings, a partial list of the risk factors referred to in the settlement has been used in New York State since 1989; the full list has been used since 1993. That is, the settlement incorporated approaches to HIV testing of minors that have already acquired widespread support in New York State. Third, Professor Leonard's reference to "largely racial minority populations" seems to us to be inappropriately alarmist and deliberately meant to confuse the issue. The settlement aims to insure better health care for infants who are HIV-infected and their mothers. Period. We had hoped that important voices on HIV/AIDS law like Professor Leonard would recognize as much. Very truly yours, Gretchen Buchenholz, Executive Director Colin Crawford, Special Counsel New York, New York Editor's Response: In my report on the settlement agreement, I suggested the possibility that the nonconsensual testing exception might be interpreted in a particular way. Opinions can differ on this. What is more to the point, on December 13 the state Department of Health published its proposed regulations to effectuate the settlement agreement in the New York State Register (at pages 21-29), so anybody interested in how the state is interpreting the agreement can take a look for themselves. The key sentence dealing with this issue in the proposed regulation reads: "If the mother has neither consented nor refused consent, and the physician makes a determination before discharge that an emergency exists, and the infant is in immediate need of medical attention and an attempt to secure consent would result in delay of treatment which would increase the risk to the infant's life or health, then the physician may order the HIV newborn test to determine whether the infant has been exposed to the HIV virus [sic] such that testing would address the emergency and therefore would be necessary to preserve the life or health of the infant, and would assist in future treatment and follow-up care." Ms. Buchenholz and Mr. Crawford are clearly correct in asserting that this does not by its terms literally mandate that the physician perform the risk assessment if the mother neither consents nor refuses consent. I am not suggesting that it does. I am suggesting, based on bringing some common sense insights to the way practices grow up in institutions (and based on listening to and participating in extended discussions of the settlement and the regulation in the context of the City Bar Association's AIDS Committee, which includes people with direct expertise in the area) that, as a matter of practice, it is likely in health care institutions serving populations with high incidences of HIV- infection that such testing will become the norm; as the writers indicate, the overwhelming majority of mothers of newborns will consent as a result of the counseling, which is intended to be very persuasive; very few will refuse, and among those who do neither, a decision to test will likely be made by the physician. Since ABC's lawsuit was intended to maximize the number of newborns who are tested, I would expect that the writers of the letter would see this as a positive development. In looking over the proposed regulation, I am concerned about the degree of discretion left to physicians to determine whether an emergency exists. The range of interpretation possible, given the lack of definitions for key terms, leaves open a wide range of practical outcomes. The regulations are, to some extent, more specific than the settlement agreement, but issues of potential conflict with Pub. Health L. Art. 27-F (which governs HIV confidentiality) remain, and may lead to litigation. As to my observations being paternalistic, I could well use that term to describe the lawsuit brought by ABC, but it would be painting with too broad a brush, because I believe that much of the relief the lawsuit was seeking could be accurately characterized as empowering women to have the information necessary to make an intelligent decision about testing at a time when testing might be useful for their own health -- most particularly, during prenatal care. I would call the emergency exception paternalistic. Whether it is necessary paternalism is a matter as to which reasonable people can differ. A.S.L.