LESBIAN/GAY LAW NOTES ISSN 8755-9021 March 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 Writers: Otis Damslet, Esq., New York; Steven Kolodny, Esq., New York; Todd V. Lamb, Esq., New York; Dirk Williams, Esq., Boston; Robin Miller, Esq., Seattle; Julia Herd, Esq., Brooklyn; E. Terry Giuliano, Helen G. Ullrich, Students, New York Law School; Ross D. Levi, Student, Brooklyn Law School. Circulation: Daniel Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353- 9118; e-mail: le-gal@interport.net 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 MONTANA JUDGE ENJOINS ENFORCEMENT OF SODOMY LAW Judge Jeffrey Sherlock of the Montana First Judicial District Court ruled Feb. 16 that Section 45-5-505, MCA, violates the Montana Constitution's privacy provision to the extent it criminalizes consensual sexual activities in private between adults of the same sex. Gryczan v. State of Montana, No. BDV-93-1869. Granting the plaintiffs' motion for summary judgment in this test case litigation, Judge Sherlock issued "a permanent injunction forbidding the State to enforce Section 45-5-505, MCA, against these Plaintiffs or against any other people in the state of Montana who engage in homosexual activity if that activity is consensual, done in private, and is engaged in by adults." Section 45-5-505 makes it a felony punishable by up to ten years in prison or a fine not to exceed $50,000, or both, for a person to knowingly engage in "deviate sexual relations" or cause another to engage in such activity, deviate sexual relations being defined in Section 45-2-101 as "sexual contact or sexual intercourse between two persons of the same sex or any form of sexual intercourse with an animal." Its validity was challenged under Art. II, Sec. 10 of the Montana Constitution, which provides: "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." After disposing of the State's argument that the case did not present a justiciable controversy because there was no allegation that the State was actually enforcing the statute against adults who confined their homosexual activity to consensual, private situations, Sherlock proceeded to the merits, noting that the Montana Supreme Court has stated that Montana has "the strongest privacy provision in the United States." The Montana Supreme Court has described the boundaries of privacy covered by this provision using a two-part test: (1) whether the person involved has a subjective or actual expectation of privacy, and (2) whether society is willing to recognize that expectation as reasonable. As to the first part of the test, Sherlock found that "a person's decision as to sexual matter is probably one of the most private areas of a person's life," and that commentators writing on Montana's privacy provision had concluded that "determinations about sexual choices and family relationships" were within that expectation. Turning to the second test, Sherlock noted that it was "certainly true that many Montanans do not approve of homosexual activity," but observed that because the statute had never been enforced against private, consensual adult homosexual activity, it seemed that the state was willing to recognize the homosexual's expectation of privacy as a reasonable one. "The statute certainly stands as a monument of the Legislature's dislike of homosexual activity," he wrote. "However, the fact that it has never been enforced seems to be a reflection of the fairmindedness of most Montanans. This Court concludes that society in Montana, although it may not approve of homosexual activity, is willing to recognize that the right to privacy should protect consensual, private, homosexual activity between adults." Sherlock found support for this view in recent decisions by courts in other states questioning the constitutionality of sodomy laws. He also dismissed the State's attempt to invoke Bowers v. Hardwick, 478 U.S. 186 (1986), which found that the federal constitutional right of privacy does not extend to "homosexual sodomy." Sherlock observed that Montana courts have taken an independent view as to the scope of privacy rights in Montana. "If this Court were to merely follow the path suggested by the State in this case, it would cause the defenestration of the Montana Constitution. Such action would also require this Court to ignore some 24 years of decisions of the Montana Supreme Court that have refused to march in locked step with the federal courts." Consequently, the sodomy law was to be reviewed under a compelling state interest test. Here, Sherlock found that the State fell far short. "In the briefs filed by the State, the State is unable to put forth much of an interest in preserving this statute, let alone a compelling one," he wrote. "Perhaps most conclusive in this regard is the fact that no one has been prosecuted under this particular statute for homosexual activity that is private, consensual, and between adults. If, as has been suggested, the statute is an attempt to protect public morality, the statute is not doing a very good job since no one has ever enforced it." Sherlock also rejected the argument that the statute was needed to combat the spread of AIDS, pointing out that the statute predated the AIDS epidemic, and that public health authorities have argued that sodomy laws actually impede the attempt to combat the public health emergency. In fashioning a remedy, Sherlock noted that the statute was only attacked as to its application to consenting adults acting in private, consequently he was not prepared to invalidate it entirely, but he concluded that it was appropriate to forbid its enforce appropriately. An appeal to the Montana Supreme Court is expected to follow in due course. * * * No suspense in Tennessee. . . Attorney General Charles Burson announced he would seek review of the Tennessee Court of Appeals decision in Campbell v. Sundquist, 1996 WL 29326 (Jan. 26), which held that the Tennessee sodomy law, which only applies to same-sex conduct, violates the state constitution. Review isn't automatically granted, however, and the Court of Appeals, affirming the trial court, refused to enjoin enforcement of the law, merely declaring it unenforceable as applied to consenting adults in private. Memphis Commercial Appeal, Feb. 9. A.S.L. LESBIAN/GAY LEGAL NEWS Federal Judge Refuses to Block Gay Student Conference Rejecting an argument from Alabama Attorney General Jeff Sessions that allowing lesbian and gay students to hold a workshop on safe sex at a conference at the University of Alabama in Tuscaloosa would irreparably harm the state of Alabama, U.S. District Judge Myron H. Thompson refused to stay his decision invalidating Alabama Code sec. 16-1-28, announced Jan. 29, Gay Lesbian Bisexual Alliance v. Sessions, 1996 WL 42033, 64 USLW 2490 (M.D. Alabama). In a new opinion filed Feb. 13, reported at 1996 WL 84876, Thompson noted that at oral argument the state had backed away from the position taken in its motion papers that the conference itself should be stopped. But Sessions continued to argue that the state would be irreparably injured if activities took place during the conference that might promote or encourage participants to engage in sodomy, and sought a partial stay of the Jan. 29 order pending the state's appeal to the 11th Circuit. Evaluating the request for a stay, Thompson rejected Sessions' argument that the Jan. 29 order should be narrowed to apply only to the gay student group at the University of South Alabama that brought the suit. Having found the statute facially invalid, however, Thompson pointed out that what Sessions wanted to do was to use the statute to censor speech at the Feb. 16 student conference, and rejected the notion that the Feb. 16 conference presented a "new and separate set of facts not within the reach of this litigation." Since students from the plaintiff group planned to attend the Feb. 16 conference, any use of the statute to censor conference activities would clearly come within the holding of the earlier opinion. "An additional reason for rejecting the Attorney Generals as applied argument is that on questioning by the court, the Attorney General could not come up with a single prospective application of the statute that would not unconstitutionally infringe upon GLBA-USA's right to exercise free speech," asserted Thompson. In terms of balancing the equities, Thompson found that the injury to the gay student groups from staying his prior ruling would far outweigh any injury to the state, and that in terms of advancing the public interest, preserving the First Amendment rights of the students took priority over the state's asserted interests. Despite Attorney General Sessions' continued defiance of the court's ruling, Thompson remained unwilling to issue an injunction requested by the student groups, observing that the Attorney General had assured the court that he would comply with the Jan. 29 order so long as it was in effect. News reports indicated that the conference went off without incident, although there was some controversy (and a threatened lawsuit) when conference organizers (backed up by university officials) barred electronic media coverage of the safe sex workshop session. A.S.L. Supreme Court Refuses To Review Gay Cases; Hears Arguments on Indecent Broadcast Rules The U.S. Supreme Court refused to review an appellate decision from Pennsylvania that upheld enforcement of a private employment contract requiring termination for homosexuality. In refusing to review the decision in DeMuth v. Miller, 652 A.2d 891 (Pa.Super. 1995), the Court left in place a ruling rejecting the concept that state judicial enforcement of an anti-gay contract violates the Equal Protection Clause of the 14th Amendment. Petitioner Miller was an accountant employed by respondent DeMuth. DeMuth included a provision in his written contract with Miller that specified grounds for termination, including "homosexuality." The contract also had a non-compete clause which required a terminated employee to forfeit any money he earned from former clients of DeMuth's after setting up a rival accounting practice. DeMuth discharged Miller after learning he was gay, and never denied that this was his only motivation, admitting that Miller's work was excellent but asserting that he did not wish to associate with gay people. Miller set up an accounting firm that attracted some of DeMuth's clients. DeMuth sued Miller to enforce the non-compete clause. The Pennsylvania courts held the clause enforceable, rejecting the argument that judicial enforcement of the resulting $110,000 damage award constituted unlawful discrimination against Miller on the basis of his sexual orientation. Lambda Legal Defense Fund had petitioned the U.S. Supreme Court on behalf of Miller, after having unsuccessfully appealed his case within the Pennsylvania court system. Lambda Legal Director Beatrice Dohrn had argued the case before the Pennsylvania Superior Court. The Court also refused to review a decision by the Rhode Island Supreme Court, State v. Lopes, 660 A.2d 707 (1995), in which the state court rejected a challenge to the sodomy/solicitation laws. On Feb. 21, the Court heard argument in Denver Area Educational Telecommunications Consortium v. F.C.C., No. 94-124, which challenges sec. 10 of the 1992 Cable Act, a provision allowing cable operators (who have previously been barred from content-based censorship of leased access cable programming) to ban programming they reasonably believe to be indecent, or to put such programming on special access channels that can only be received by cable subscribers who request access in writing. The U.S. Court of Appeals for the District of Columbia upheld the provision last year. The government has defended on the provision on the ground that what cable operators decide to do is a private entrepreneurial decision, not state action subject to the 1st Amendment. Considerable skepticism about that argument was voiced by several of the Justices at the oral argument. A.S.L. 8th Circuit Finds Little Chance of Success in Challenge to Military Policy; 9th Circuit to Hear Challenge to Gay Conduct Discharge The question before the court in Reichenberg v. Perry, 1995 WL 763360 (8th Cir., Dec. 26), was whether to grant an injunction pending appeal to bar the Air Force from discharging the Appellant, Captain Richard Reichenberg, while the appeal of his discharge order was being considered. Over a sharp dissent by Chief Judge Richard Arnold, the circuit court ruled that an injunction would be inappropriate. The statement of the facts set forth in the majority opinion does not make much sense in the context of the case. According to the majority opinion, Reichenberg sought separation from the Air Force after eight years in the service, and when this was denied, volunteered the information that he was a homosexual, a violation of the military's "Don't Ask, Don't Tell" policy, embodied in 10 U.S.C. sec. 654. The opinion then states that he contested his separation, and when all administrative relief was exhausted, Reichenberg sought an injunction in U.S. District Court in Nebraska, challenging the "Don't Ask, Don't Tell" rule as violative of his constitutional rourt of appeals ruled that Reichenberg was not entitled to injunctive relief on two grounds. First, there was no showing of substantial likelihood of success on the merits, as he was challenging a statute which was the product of lengthy public debate involving the Congress and the President. The court pointed out that military regulations challenged on First Amendment grounds are accorded far more deference than similar regulations or statutes designed for civilian society. Second, the court ruled thnold stated in dissent that he would grant the injunction and establish an expedited briefing schedule on the matter, as he found that Reichenberg showed substantial likelihood of prevailing on appeal. Arnold stated his belief that no showing had been made that Reichenberg had engaged in any prohibited conduct. He was being discharged solely on the grounds of his statement that he is homosexual, which is taken to create a presumption of propensity to act that is, at best, "questionable" ("If I am hetr for service during Desert Storm because he told his commanding officers that he is gay and that he has had sex with other men off-base. Philips was one of numerous military members who exuberantly celebrated the election of Bill Clinton in November 19c Defense The Hawaii Supreme Court unanimously rejected an attempt by the murderer of a gay man to raise a classic homosexual panic defense. Affirming a second degree murder conviction in State v. Kaiama, 1996 WL 76098 (Feb. 23), the court held that the trial judge did not err in failing to give a manslaughter instruction to the jury. On the night of November 21, 1991, Roy Kaiama, Jr. and a co-defendant, Reginald Medeiros, were drinking at a bar when they engaged Jerald Canada in conversation. Ultimately, Kaiama and Medeiros went with Canada to the beach where, according to contradictory statements Kaiama gave to police, Canada indicated his interest in performing oral sex. Medeiros and Kaiama responded by beating up Canada, who tried to escape by running into the ocean. The defendants then pelted him with rocks. Canada drowned in the assault. Although Kaiama's attorney did not request a manslaughter instruction, on appeal Kaiama contended that he was entitled to such an instruction as a matter of law. "In support of this contention," wrote Justice Ramil for the court, "Kaiama advances the following argument: Considering the fact that [Kaiama] was only 18 years old, did not suspect Canada of being homosexual, and while in the process of zipping up his pants after urinating, being asked, `I can suck um right here,' as Canada bent down on his knees and opened his mouth, it is understandable that [Kaiama] may have reacted with violence. Kaiama does not argue that his conduct was anything but `intentional' or `knowing.' Instead, he appears to be arguing that the trial court erred in not, sua sponte, providing an `extreme mental or emotional disturbance' manslaughter instruction. . ." Rejecting this argument, the court noted that "the ultimate test . . . is objective. There must be a reasonable explanation or excuse for the actor's disturbance. As such, HRS sec. 707-702(2) `does not authorize mitigation on the basis of individual abnormality without any measure of the defendant against an objective standard,'", citing State v. Russo, 734 P.2d 156 (Hw. 1987). The court found that "the facts adduced at trial show absolutely no `extreme mental or emotional disturbance' on Kaiama's part. Nor does the evidence demonstrate any loss of self-control on Kaiama's part. If anything, Kaiama's statements to the police indicate that he was completely under control in the situation. Additionally, while Kaiama may have believed that his masculinity was threatened when Canada, whom Kaiama did not `suspect of being homosexual,' unexpectedly exposed him to a sexual overture, Kaiama's actions fall far short of satisfying any objectively reasonable explanation. There is absolutely no possibility that an unwanted sexual overture, in the circumstances that took place, under the facts of this case, could provide a reasonable explanation for beating a person, driving him into the ocean, throwing rocks at him once he escaped into the ocean, and eventually drowning him." In a footnote, Justice Ramil commented, "Clearly, Kaiama's violent reaction was not, as he contends, `understandable.'" The court also rejected a variety of other claims made by Kaiama on appeal and affirmed the conviction. A.S.L. @District Court Denies Emotional Distress Claim Founded on Homophobic Workplace A recent unofficially reported decision by Judge Robert Patterson of the U.S. District Court for the Southern District of New York held that office gossip, derogatory comments, and "unfavorable and discriminatory" treatment by supervisors (condoned by the employer) does not meet New York's standard for the tort of intentional infliction of emotional distress, even though such actions "suggest homophobia" on the part of the employee's co-workers. Ward v. Goldman Sachs & Co., 1996 WL 3930 (Jan. 3). Plaintiff, who resigned from Goldman Sachs after nearly nine years of service, initially filed suit against his former employer claiming discrimination under the Americans With Disabilities Act. Plainted the elements set forth in the Restatement of Torts for establishing the tort of intentional infliction of emotional distress: (1) Defendant engaged in extreme or outrageous conduct, (2) Defendant intended to cause distress or knew its conduct would ettled a suit by AIDS activists who were unlawfully subjected to a strip search when they were arrested at a demonstration outside an FDA office in 1989. Last year, the 9th Circuit Court of Appeals ruled that the strip searches were unconstitutional aourt Again Rejects Challenge to Anti-Gay Initiative Vote Reconsidering its original opinion, which was reported at 138 Or. App. 255, 907 P.2d 257 (1995), the Oregon Court of Appeals in Kinney v. O'Connor modified the opinion but adhered to its originalunty's counting of votes cast in such an election. Observing that the Oregon Supreme Court, in Boytano v. Fritz, 321 Or. 498, 901 P.2d 835 (1995), referred to a dictionary to determine that "enacting" meant the last act by which a proposal was made into law, the court of appeals determined that the counting of votes on a proposed initiative was a step preparatory to the "enacting" of the initiative. In examining Article IV, sec. 1(2)(a), of the Oregon Constitution, which provides that voters can "enact or reject" an initiative, the court found additional support for its conclusion that the act of counting votes was not incorporated in the "enacting" of a measure, since the counting of votes was necessary to determine whether voters had "enacted or rejected" the measure. R.M. Another Outrageous Decision in the Bottoms Case In its 1995 decision in Bottoms v. Bottoms, 457 S.E.2d 102, the Virginia Supreme Court reversed the court of appeals and reinstated a trial court decision to award custody of Sharon Bottoms' son, Tyler, to Sharon's mother, Kay Bottoms. One articulated reason for the decision was that Sharon was living in a lesbian relationship with April Wade, and Virginia has a sodomy law making that relationship illicit. However, other reasons were articulated by the court as well, relating to Sharon's faults as a housekeeper and mother, as well as some aspects of Wade's relationship with Tyler. Since the decision, Tyler has lived with Kay subject to Sharon's visitation rights, which Kay has thwarted sometimes. Sharon may not have Tyler visit in her own home while Wade is there, so she has rented another apartment for her weekend visitations with Tyler. On Feb. 27, Henrico County Judge William G. Boice, who had originally awarded custody of Tyler to Kay, reaffirmed that award in spite of testimony by Torrence Harman, a lawyer appointed by the court to represent Tyler's interests, that it would be in the best interest of Tyler, now 4-1/2 years old, to return custody to Sharon. Harman testified that the accommodations provided by Kay in a trailer were inferior to the home Sharon could provide and, more importantly, Tyler's development had been seriously impaired by the separation from his mother. Basic learning skill problems have surfaced, including difficulty in identifying colors, slowness in learning to count, and personality disorders. This time around, Judge Boice did not explicitly rely on Sharon's continuing relationship with Wade, but instead emphasized the contract under which Sharon and Wade will receive $75,000 and 5 percent of the profits from a movie deal. "I am less concerned with her lesbianism than Tyler being made a poster boy for a cause he could not and did not enlist," stated Boice in court as he made his ruling. "I am appalled at the movie contract. [She] continues to put her interests above that of her child. For all her shortcomings, Kay does not." Prior to the ruling, Kay had dropped her demand for child support payments and termination of Sharon's visitation rights. Stephen B. Pershing, legal director of the ACLU of Virginia, which is representing Sharon, announced that the ruling would be appealed, but Sharon's own views were less certain. Wade indicated to reporters that Sharon was so shaken by the decision that she might give up the struggle to regain custody. Pershing stated that Sharon and Wade had not sought the movie contract, but reluctantly gave in after a year and a half of "badgering" by film producers. Pershing said they decided to take the contract and cooperate with the filmmakers "so that the story might be a more accurate one." Richmond Times-Dispatch, Feb. 28. A.S.L. D.C. District Court Allows Same-Sex Harassment Claim Widening a split among the federal courts which have considered the question, the D.C. District Court held that allegations of same-gender sexual harassment form the basis of a cognizable Title VII claim. Williams v. District of Columbia, 1996 WL 56100 (D.D.C. Feb. 5). Germaine Williams alleged that her female supervisor made sexual comments to her, touched her inappropriately and threatened to fire her if she did not play along. "Title VII," Judge Joyce Hens Green opined, "makes no distinction based on sexual orientation. . . ." The court chose not to follow a line of federal cases holding that same-gender sexual harassment is not actionable under Title VII, questioning the reasoning of those cases as a misinterpretation of the legislative intent of Title VII and as contradicting the classic formulation, created by Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), that a supervisor's sexual harassment on the basis of a subordinate's gender is sex discrimination and violative of Title VII. The Williams court also distinguishes the facts before it from federal cases which reject sexual orientation discrimination and same-gender sexual harassment as actionable under Title VII. The court refused to view the case as a sexual orientation discrimination claim, preferring to stay focused on sexual harassment. The court also distinguishes this case from cases where plaintiffs failed to state a claim for same-gender sexual harassment because they did not allege an abuse of power by the harasser toward the plaintiff, a factor crucial to the Meritor definition of quid-pro-quo sexual harassment. The court also allowed the plaintiff to maintain her Section 1983 claim, but dismissed her common law claims on timeliness grounds. D.W. Anti-Gay Harassment by Supervisor Insufficient for Negligent Supervision Claim In Choroszy v. Wentworth Institute of Technology, 1996 WL 50525 (D. Mass. Jan. 22), U.S. District Judge O'Toole granted the defendant's motion to dismiss co-plaintiff Denson Hudgens' claim of negligent supervision and denied his motion to amend the complaint to add a claim of sexual harassment. The court further concluded that Hudgens had abandoned his claim under the Massachusetts anti-discrimination statute because he failed to employ the required administrative remedies. Those remedies are exclusive for discrimination in employment claims. Hudgens was one of defendant's security officers. When certain officers harassed another officer (perceiving him to be gay), Hudgens spoke out against the tormenting officers. That led the officers to harass Hudgens. One officer allegedly even pulled his service revolver on Hudgens, stating "I should kill you, you're a faggot." Plaintiff complained to defendant several times about these events to no avail. Defendant eventually terminated plaintiff. Plaintiff alleged that defendant's negligent supervision of the officers resulted in his termination. The court first noted its jurisdiction over the state law claims, without analysis. In a fairly muddled opinion, the court assumed that Massachusetts would recognize a common law claim of negligent supervision by an employee against an employer for employing or retaining an individual it knew somehow threatened the safety of co-workers. Nevertheless the court rejected Hudgens' claim. "The fact that Hudgens describes what he suffered as damages flowing from negligent supervision rather than from employment discrimination does not change the essence of his claim, which he originally characterized as a discrimination claim." The court also rejected the claim by invoking the employment at will doctrine. Massachusetts recognizes certain exceptions to the doctrine: where the termination breaches of covenant of good faith inherent in all contracts, where the employer withholds wages for services rendered prior to the termination, or where the mode of termination violates public policy. None of these exceptions fit Hudgens' claim. The court concluded this analysis by stating that even if the discharge was the "product of negligent supervision, [it] is not an injury cognizable in tort law." The court then stated that without reference to the alleged discrimination, "there is nothing putatively wrongful [sic] about what happened to him." And, even if the claim was "construed as a valid and separate tort, the worker's compensation statute would bar his claim." The court then rejected the amendment for sexual harassment on the authority of Clarke v. Kentucky Fried Chicken, 57 F.3d 21 (1st Cir. 1995) which held that the claim must be brought under the Massachusetts anti-discrimination statute, which claim plaintiff had abandoned. The court was undeterred by the First Circuit's decision to delaying rehearing Clarke en banc, pending the outcome of two cases before the Supreme Judicial Court of Massachusetts addressing the issue. M.S.R. NY State Court System Bans Anti-Gay Bias The New York State court system has promulgated revisions to the Code of Judicial Conduct banning judges from engaging in discriminatory acts or joining discriminatory clubs. Among the bases of discrimination banned are "sexual orientation, marital status, and socioeconomic status" in addition to the usual categories found in discrimination statutes. In addition to their own conduct, the new rules require judges to prohibit lawyers who practice before them from exhibiting bias through "words or conduct." New York Law Journal, Feb 6, p. 1. A.S.L. Domestic Partnership & Marriage Notes The Lesbian & Gay Law Association of Great New York (LeGaL) has compiled a database on legal employer benefit plans that cover domestic partners. It includes actual texts of about twenty plans adopted by New York City legal employers, and several others from around the U.S.A. The database is available to those researching issues raised by such plans. Contact LeGaL's Professional Services Committee Chair, Toby Butterfield, at 212-940-8200. A campaign by right-wing groups to get states to adopt laws barring recognition of same-sex marriages advanced in February when South Dakota became the second state to enact such a law. (Utah passed an anti-same-sex marriage law last year.) Bills are pending in many other state legislatures, although in a few states legislative proposals seem to have been blocked for now. The right-wing campaign received sudden national prominence when an anti-same-sex marriage rally became a centerpiece for Republican candidates competing in the Iowa Presidential Caucuses. But, in a refreshing change of pace, a Nebraska legislator introduced a bill that would authorize the state to license same-sex marriages. He argued that it was a matter of simple equal rights and fairness, and complained at the first hearing that news reports about his intentions led to obscene phone calls from self-identified Christians. The Hawaii Senate Judiciary Committee voted 5-2 on February 26 to report a domestic partnership bill favorably to the full Senate. At the same time, a same-sex marriage bill was defeated 6-1 and a proposed constitutional amendment to ban same-sex marriages and overrule Baehr v. Lewin was defeated 4-3. The Baehr case, now styled Baehr v. Miike, is scheduled for trial beginning in August. A group of conservative legislatures, alarmed by public statements of Gov. Ben Cayetano that the state has no compelling interest in excluding same-sex couples from marriage, is petitioning to intervene to defend the current marriage law on the ground that the state will not give it an adequate defense. A prior attempt by the Mormon Church to intervene was denied by the Hawaii Supreme Court. The domestic partnership measure, by the way, has been endorsed by the Rt. Reverend George Hunt, Episcopal Bishop of Hawaii, so religious bodies in Hawaii are not uniformly opposed to the measure. Eastman Kodak will extend full domestic partner benefits to employees worldwide effective Jan. 1, 1997, according to a memo to managers recently distributed. Full details are yet to be worked out and will be communicated to employees in the benefits sign-up materials that are distributed in the fall. * * * Whole Foods Market (a midwestern retailer that owns Bread & Circus, Wellspring Grocery, Unicorn, and Texas Health) will offer domestic partnership benefits for same sex and opposite sex unmarried partners of their employees beginning in June. * * * Bolt Beranek & Newman announced extension of medical benefits to same-sex partners of employees in Massachusetts, and indicated it would extend the benefits to its employees in other states as soon as it could get insurance carriers to provide the coverage. * * * There was also an unconfirmed report that Polaroid has adopted a domestic benefits plan. They'd better, if they want to remain competitive in the labor market with Kodak! A.S.L. Legislative Notes Republicans in the Kentucky legislature are making another attempt to amend the state's constitution to overrule the Kentucky Supreme Court's decision in Commonwealth of Kentucky v. Wasson, 842 S.W.2d 487 (1992), which held that the state's sodomy law violated the state constitutional right of privacy. According to a report in the Kentucky Post (Feb. 15), however, political observers gave the measure little chance of passage in light of the large number of constitutional amendment proposals facing the legislature, and the state's limit of four proposed amendments on the ballot every two years. The Ohio legislature is working on a proposal to thoroughly revamp the state's adoption laws. An amendment was offered to overrule an Ohio Supreme Court decision of a few years ago that approved gays adopting kids, but was tabled in the Senate on a vote of 20-11, effectively killing it. Columbus Dispatch, Feb. 15. The Metropolitan Human Rights Commission in Portland, Oregon, has scheduled hearings on March 25 and April 25 to inquire into discriminated experienced by transsexuals and other sexual minorities in Portling a proposal to add transsexuals and transvestites as protected groups under the city's human rights ordinance. Oregonian, Feb. 28. A compromise worked out in a House-Senate conference committee dealing with the District of Columbia's governmental appropriations may partially preserve last year's court victory on second-parent adoptions in the District. According to a Feb. 2 report in the Washington Blade, the committee compromise will ban joint adoptions by unmarried couples (whether same-sal D.C.'s domestic partnership ordinance, but will keep in place the ban on the District government spending any of its budget on implementation. A.S.L. Public School Notes Utah legislators are considering a bill that would require parents to give signed permission for their children to become a member of any student organization or club that meets at a public school. Another bill would forbid school employees from encouraging, condoning, or supporting participation in illegal activities. Anafrom forming, due to a federal statute, the Equal Access Law, that forbids discrimination between student organizations on the basis of their viewpoints. (The law was passed at the behest of Christian conservatives who wanted to preserve the right of students to form religiously-based clubs.) Oregonian, Feb. 18. Taking matters into its own hands, however, the Salt Lake City School Board voted to ban all non-curricular student clubs rather than be required to extend recognition to a gay studenty student applicants, it appears that most of the blame is aimed at the School Board's bigotry and fear. Most editorial comment around the country was harshly critical of the School Board. New York Times, Feb. 28. Shortly after the school board vote, a group of teachers announced the formation of a gay and straight teachers' alliance. The Los Angeles Times (Feb. 28) reported, however, that the legislature was "poised to pass a law that could be used to fire homosexual teachers." The Los Angeles Times (Feb. 16) reported that Los Angeles Superior Court Judge Joseph R. Kalin ruled in favor of the teachers union in West Covina, California, which sued under the 1st Amendment for an order against the West Covina School Board in a dispute over a workshop on gay and lesbian issues for middle school teachers. The board voted that the workshop could not be held on school premises. "Trustees in this case have restricted and censored the right of expression of teachers hired to stimulate and guide young minds without any basis or justification other than political considerations," wrote Kalin, who also found the credibility of elected officials who testified in support of the board's action to be "sadly lacking." In August, the school board in Merrimack, New Hampshire, adopted a policy that forbids any instruction or counseling that has "the effect of encouraging or supporting homosexuality as a positive lifestyle alternative." The policy has already led to the removal of certain books from study at the school, including a decision to withdraw Shakespeare's Twelfth Night from a high school English class curriculum. On Feb. 15 a group of local parents and educators filed suit in U.S. District Court in Concord, claiming the policy violates the 1st Amendment right of freedom of speech and the concomitant right of students to receive information without content-based censorship. Walker v. Merrimack School Board. The New Hampshire Civil Liberties Union, Gay & Lesbian Advocates & Defenders (Boston), People for the American Way, and the ACLU's Lesbian & Gay Rights Project, joined together to provide representation to the plaintiffs. The school board's spokesperson defended the policy as having been "democratically" enacted. Send those board members back to high school civics class! In 1970s Rhode Island, litigation was necessary to secure Aaron Fricke the right to bring a boyfriend as his date to the senior prom. In Sullivan, Illinois, school officials reacted positively to a parent's complaint that banning same-sex couples from attending the prom sent a message of intolerance: they dropped the ban. Although no gay students had applied to attend with a same- sex date, student unrest upon publication of the rule against such couples led to the parental complaint. Said school principal Stuart Hott, "The parent thought we should teach tolerance, and I agreed." St. Louis Post Dispatch, Feb. 26. A.S.L. A second gay student from Riverside-Brookfield High School in the Chicago suburbs has joined a pending lawsuit seeking to hold school officials liable for civil rights violations based on harassment and other mistreatment of gay students at the school. The Mario Doe case will now be joined by John Doe, who alleges that a school counselor contacted his father and revealed his sexual orientation, which he had disclosed in confidence to the counselor. Doe's suit alleges that after his problems with the counselor, he was reassigned to a special education program as punishment, and that there was a pattern of mistreatment of gay students at the school. Chicago Tribune, Feb. 23. A.S.L. NY Court Suggests Attorney General May Not Have Free Hand to Dismiss Attorneys After taking office as Attorney General of New York on January 3, 1995, Dennis C. Vacco rescinded an executive order governing discrimination in the State Law Department and substituted a new order that omitted "sexual orientation." Vacco also required approximately 500 lawyers employed in the Department to submit resumes and reapply for their positions. In the resulting "reorganization" many of the openly-lesbian or gay attorneys in the Department lost their jobs. Now a New York State Supreme Court Justice, Emily Jane Goodman, ruling on a motion to dismiss in a suit brought by an attorney whose job was terminated in the reorganization, has suggested that given the size of the Law Department many of the attorney positions may not be exempt from civil service protection. Herman v. Vacco, NYLJ, 2/14/95, p.30, col.3 (Sup.Ct., N.Y. County). Vacco had moved to dismiss Herman's claim on the ground that Herman was an "at will" employee of the Law Department, exempt from civil service protection. Goodman questioned the grounds for exemption, noting the general preference for finding government positions to be covered by civil service protection and reducing the scope of pure patronage appointments. While the tiny Law Department of 18th century vintage probably involved all of its small group of attorneys in close, policy- making relationships with the Attorney General, Goodman suggested that the large department of the present day does not have the same character. She also rejected Vacco's suggestion that the statute of limitations barred the action, observing that "the exercise of a power which offends the Constitution may be attacked at any time." Vacco is likely to appeal, in light of the large number of terminations that might be affected by an ultimate ruling on the merits in this case. A.S.L. Military Notes Don't Ask, Don't Tell? It don't work, was the conclusion of the Servicemembers Legal Defense Network, which issued a report Feb. 27 on the first full federal fiscal year of the infamous policy. As reported in the New York Times of that date, the Army, Navy and Marines discharged a combined total of 488 service members under these regulations in the fiscal year ended Oct. 1, 1995, a 17 percent increase over the prior year. (Air Force figures were not available.) The report also concluded that if the policy was intended to shield lesbian and gay servicemembers from intrusive investigations, it was an abysmal failure. Any argument that the policy is intended to let lesbians and gay men serve in the military so long as they keep quiet about their sexual orientation seems belied by some of the tactics mentioned in the report. Coincidentally, just days earlier the Ministry of Defense of the United Kingdom issued a report to Parliament recommending a continuation of that country's ban on military service by lesbians and gay men. As reported by the Associated Press in an article published Feb. 25 in several newspapers, the Ministry's Legal Advisor stated that the British government would likely lose a challenge to the ban before the European Court of Human Rights, but stated that social attitudes had not yet evolved to the point where allowing gays to serve openly would be consistent with maintaining order and morale, and speculated that social attitudes may never develop to that point. The Ministry report based its recommendation to keep the ban solely on the contention that hostility from heterosexual service members made it necessary to exclude all openly gay people. A survey of British military personnel showed 80 percent opposed to lifting the ban. Further on the military: the Defense Authorization Bill signed on Feb. 10 by President Clinton not only mandates discharge of HIV+ service members within six months (see below), but also provides that colleges and universities that prohibit ROTC units from being maintained or established cannot receive Defense Department grants and contracts. Washington Times, Feb. 23. A.S.L. Law & Society Notes Another first: Tom Cunningham, an openly gay flower shop owner, was elected Mayor of South Miami, Florida, with 57% of the vote. Cunningham, a Vietnam War veteran, won a competition as "Mr. Gay Alabama" in 1978, moved to Dade County and became chairman of the board of Cure AIDS Now after his lover died from AIDS. He was elected to the South Miami Commission with 61% of the vote two years ago. Cunningham was sworn in to office by openly-lesbian Dade County Judge Victoria Sigler. Sun Sentinel, Feb. 19. On Feb. 27, the New York Civil Liberties Union and an attorney representing more than seventy business owners filed a lawsuit in New York Supreme Court challenging the constitutionality of a zoning measure passed by the New York City Council last year to restrict the operations of sex-related businesses. New York Times, Feb. 28. Under the zoning restrictions, sex-related businesses could only operate in circumscribed manufacturing and commercial areas, and would have to be more than 500 feet from homes, schools, churches, or other sex-related businesses. Existing businesses in violation of the zoning rules were given one year to relocate or close. If the restrictions are sustained, many gay-related businesses located in residential areas (including the heart of gay Greenwich Village) will have to close. A.S.L. Also late in February a coalition of groups concerned with freedom of speech and four of the largest consumer on-line information networks joined together in a lawsuit challenging the constitutionality of the new Communications Decency Act, a provision of recent telecommunications legislation that makes knowingly transmitting indecent or patently offensive sexual material over communications networks where children may access such material a federal felony. In pretrial skirmishing, U.S. District Judge Ronald L. Buckwalter, who will participate on the three-judge panel that will formally hear the challenge in March, ruled that the portion of the law banning indecent material was facially unconstitutional on vagueness grounds. New York Times, Feb. 26. * * * In mid-February, Compuserve responded to an outpouring of protest by unblocking its subscribers' access to 245 Internet sites that had been blocked earlier in response to a German prosecutor's request. Gay activists had charged that the sites chosen for blockage were based solely on the presence of words like sex and gay in their identifiers without any serious investigation of whether they carried material that might be found illegal. Compuserve continues to block five sites whose identifiers indicate pedophile content. Washington Blade, Feb. 16. Several newspapers early in February reported that the California Court of Appeal, 2nd District, reversed a 1993 custody ruling in which the Superior Court awarded custody of a young girl, Courtney Thomas, to a gay man who was a close friend of Courtney's mother. The trial court had decided to treat Douglas Thomas as the equivalent of a biological father. We have been unable to locate the appellate decision on-line, but will report details if it becomes available. The case goes back to the trial court for reconsideration of custody. The Chicago Commission on Human Relations imposed a $100 fine on the Chicago Area Councilly for employment by the Council. G. Keith Richardson called the Council to inquire about employment opportunities and was told there was "no way" the Council would hire a gay man. Richardson, 35, had been an Eagle Scout admitted to the prestigious Order of the Arrow when a youth. The ACLU represented him in his complaint to the Commission. The Council vowed to appeal. Chicago Tribune, Feb. 22. A Court for the Trial of a Bishop of the Episcopal Church gathered in Wilmington, Delaware, to condeacon of the church. The hearing convened on Feb. 27 in the Cathedral of St. John was for the purpose of inquiring into whether the church actually has doctrine that was violated by Righter's actions. Proponents of the trial claim that a 1979 resolution adopted by the church's general convention, stating that it was "inappropriate" for the church to ordain a practicing homosexual, was binding church doctrine. Righter's defenders insist that Episcopalian practice is to allow each local diocese toected a motion to dismiss a lawsuit brought by the family of Scott Amedure against the producers and owners of the Jenny Jones Show. Jonathan Schmitz, a guest on the show, awaits trial on first-degree murder charges in the death of Amedure, who appeared with him at a taping of a segment of the show concerning "secret admirers." Amedure stated on camera that he had a crush on Schmitz, who three days later went to Amedure's mobile home and shot him to death, according to police reports. The defendants had argued that allowing the suit to proceed would unconstitutionally chill their free speech rights. "If that happens," said Schnelz, "so be it, but this court considers this a simple negligence case where people are being called to task for alleged actions which may have done harm to others, no more, no less." Chicago Tribune, Feb. 29. A.S.L. International Notes The Stonewall Group, a lesbian and gay rights advocacy organization in England, announced in a Feb. 23 press release that its attempt to gain a formal amendment to British immigration law to treat same-sex partners on the same basis as unmarried heterosexual partners for immigration purposes had backfired. In response to the amendment, Immigration Minister Timothy Kirkhope ied couples for immigration purposes since 1988. Stonewall reports that about sixty applications had been submitted by same-sex couples to the Home Office during 1995, of which three were granted on "compassionate grounds" and nine others were granted where the couples filed lawsuits and the Home Office determined it was likely to lose in court. A.S.L. A member of a lesbian domestic partnership that ended after ten years has been held entitled to an award under Ontario provincial laws governing alimony and support, according to the "Ottawa Citizen" of Feb. 13. In "H. v. M.", an action between the two women, Justice Gloria Epstein of the Ontario Court's General Division held that the definition of "spouse" in the Ontario Family Support Act, which was apparently limited to heterosexual couples, violated the plaintiff's constitutional rights to equality. The two women met in 1980 and moved in together two years later. Over the years the women pooled their money, started an advertising ageing the telephone, handling the accounting, and doing "more than her share" of domestic chores. When the relationship ended, the plaintiff was left with only a few belongings. The defendant's attorney announced an intent to appeal the decision. R.M. Some nations export terrorism and revolution. The Netherlands has decided to export gay rights. The Associated Press reported late in January that the Dutch Ministry of Development Cooperation has instructed Dutch embassies in Africa, Asia, Latin America and the Caribbean to look out for local lesbian and gay rights groups that could use financial assistance, which would be extended by the Dutch government. Arizona Republic, Jan. 25. A.S.L. New South Wales (Australia) Supreme Court Justice David Hodgson used a promissory estoppel theory to rule that the non-biological lesbian co-parent of children can be ordered to make a lump sum payment for child support after the breakup of a relationship. "In my opinion," wrote Hodgson, "it is unconscionable for the defendant now to seek to make no contribution whatsoever to the upbringing of the children." Baltimore Sun, Feb. 3. According to an Internet posting by Jenni Millbank, Faculty of Law, University of Sydney, this is the first recognition of a lesbian co-parent by an Australian court. Millbank points out the pluses and minuses: on the one hand, this is judicial recognition of co-parent responsibility where the children were conceived based on an understanding between the women that they would both be responsible as parents. On the other hand, no rights come with this responsibility, since there is not yet Australian law recognizing a non-biological parent for purposes of custody, visitation, or post-breakup decision-making about the children. A.S.L. Professional Notes The Lesbian and Gay Law Association of Greater New York (LeGaL) held its Annual Dinner at Tavern on the Green in Central Park on February 29. The keynote speaker for the occasion was The Honorable Charles Schumer, a member of the U.S. House of Representatives from a New York City district. The Ohio Human Rights Bar Association announced that its Annual Dinner would be held in Columbus at the Hyatt Regency on March 16, with The Honorable Thomas Moyer, Chief Justice of the Ohio Supreme Court, as keynote speaker. The Advocate posthumously "outed" former Congresswoman Barbara Jordan in a cover story dated March 5, 1996. Jordan, who died Jan. 17 at 59, achieved national fame as a member of the House Watergate Committee and a spellbinding speaker at national Democratic Party conventions. After retiring from politics she pursued an academic career at the University of Texas's Johnson School of Government. Most openly lesbian or gay judges gain But now a rare open seat to be filled directly by election on the San Francisco Municipal Court has stimulated a primary campaign among three openly lesbian or gay contenders (the only candidates for the seat), which will be decided during the California primary voting on March 26. Ron Albers, Matthew Rothschild, and Kay Tsenin are the contenders. Washington Blade, Feb. 9. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS Local Zoning Laws or Residential Restrictive Covenants Do Not Prohibit Use of Residences as Group Homes for AIDS Patients In two cases from opposite ends of the nation, state courts gave rulings making it more difficult for communities to oust group homes for AIDS patients under local zoning rules or residential restrictive covenants. The Supreme Court of New Mexico in Hill v. Community of Damien of Molokai, 1996 WL 55953 (N.M. Jan. 9), ruled that a group home for four persons with AIDS, by virtue of their communal meals and spiritual activities, as well as their mutual reliance on each other for social, emotional and financial support, made the home more akin to a traditional family residence than a commercial rooming house. The court held that the undefined term "family" as used in the restrictive family covenant which regulated the neighborhood should be broadly defined to include more than a group of individuals related by blood or law. The court found that the group home exhibited the stability, permanency and functional lifestyle of a traditional family unit including small group homes within the definition of the term `family,'" wrote Justice Frost for the court. The court also found that the Federal Fair Housing Act prohibited enforcement of the restrictive covenant because it had the effect of discriminating on the basis of handicap. Although no discriminatory motive was found, the covenant was found to have the effect of denying housing to disabled individuals who need congregate living arrangements in order to live in traditional neighborhoodsted vehicular traffic in excess of what would be expected in an average residential area was irrelevant in determining whether the group home violated the residential covenant, since nothing in restrictive covenant regulated either traffic or parking. Meanwhile, in Eichlin v. Zoning Hearing Board of New Hope Borough, 1996 WL 61330 (Pa.Cmwlth., Feb. 14), the Commonwealth Court of Pennsylvania upheld a ruling that a non-profit corporation could renovate a structure for use as a family home for eightment and lack of profit- making motive. Because the individuals would live, cook, clean, worship, socialize and share the premises as a single housekeeping unit, the court determined the property owner to have established a caring, nurturing environment, thus allowing the home to operate under the zoning ordinance. The fact that the residents would pay rent and have leases were inconclusive in either determining a profit motive or that the cohabitation was impermanent. "[E]ven though children wil," wrote Judge Colins. R.D.L. District Court Refuses to Dismiss Tort Claims Against Government by Student Victim of Needle-Stick Jane Doe, a student in the phlebotomy training program at Erie Community College, was required to perform a twelve-hour hospital rotation at the Buffalo Veterans Administration Center, governed by an affiliation agreement between the Center and the College. Part of her assignment was to learn how to draw blood, under the supervision of a Center employee. She was assu-stick injury. She was later notified that the patient was HIV+. Although she has not subsequently tested HIV+, she claims to have suffered severe emotional distress, and her husband claims to have sustained loss of consortium injuries. As soon as the incident was reported to Center authorities, they filed a claim on her behalf under the Federal Employees Compensation Act (FECA), a workers compensation law for federal employees. Doe and her husband filed suit against the government under theng that Doe's tort claims are precluded by the FECA claim, which had been initially accepted by the Secretary of Labor for filing. Doe responded that she never filed the FECA claim; it was filed by the Center, presumably to forestall her ability to assert tort claims. She also argued that she was not a federal employee under the circumstances, noting that due to sloppy procedures the Center did not have her fill out paperwork governing her temporary assignment as a Center "employee" during her roty of Labor in arguing that the incident was not covered by FECA. Curtin noted that there were significant factual questions to be resolved about Doe's employee status. Consequently, she denied the government's motion, but stayed further proceedings in the case until either the court was notified that the Secretary of Labor had issued a final determination on the FECA claim or the Does informed the court of their intention to pursue the FECA claim, in which case the action would be dismissed. Doe te In Baeta v. Officer Kennidy, 1996 WL 79831 (N.D.Cal. Feb. 8), U.S. District Judge Smith dismissed a prisoner's claim that his civil rights were violated by the placement of an HIV+ prisoner in his cell. Finding that there is "an overwhelming consensus of medical and scientific opinion regarding the nature and transmission of AIDS" and that "in a nonsexual context, an individual with AIDS does not present a significant risk of communicating an infectious disease to others," Smith noted that Baeta had "presented no facts to the Court which indicate that the particular HIV positive inmate with whom he was called placed him at risk on contracting HIV through either intimate sexual contact or invasive exposure to contaminated blood of certain oafter receiving a blood transfusion during elective surgery. It didn't crossed his mind that the Red Cross may have been negligent until 1990 when a friend informed Doe that someone had won a case against the Red Cross for supplying HIV-contaminated blood. It was then, five years after the surgery, and three years after discovering his HIV infection, that Doe filed suit against the American Red Cross. Defendants moved for summary judgment arguing that the suit was time barred by the two year statute of limitations for tortious injuries. The Oregon Supreme Court, in Doe v American Red Cross, 1996 WL 41675 (Feb. 1), denied defendant's motion for summary judgment and ruled that since the defendant did not offer evidence to show that a person making a reasonable inquiry could have discovered the tortious conduct of the Red Cross, the statute of limitations was not necessarily tolled by Doe's 1987 discovery of HIV infection. The court relied on the discovery rule set forward in Gaston v. Parsons, 318 Or. 247, 864 P.2d 1319 (1994), which said that a legally cognizable injury has occurred when a plaintiff, exercising reasonable care, knows or should know that there has been 1) harm, 2) causation, and 3) tortious conduct. Defendants argued that when Doe learned of his HIV infection in 1987, he was on inquiry notice of the possibility of tortious conduct on the part of the Red Cross and his failure to inquire into the possible tortious conduct was a failure in the exercise of reasonable care. While the Supreme Court granted that, as a matter of law, Doe's 1987 discovery of his HIV infection was sufficient to put Doe on inquiry notice that the Red Cross may have been negligent, the question remained as to what he would have learned had he diligently inquired into the possibility of Red Cross negligence. The court ruled that the "should have known" standard makes an issue of whether the tortious conduct on the part of the Red Cross was knowable. Since no evidence was offereummary judgment in a negligence action brought by the ex-wife of a hemophiliac with AIDS, the Texas Court of Appeals, Corpus Christi, ruled Feb. 29 that a health care provider has a duty to notify a patient of his possible exposure to HIV during the course of treatment. Garcia v. Santa Rosa Health Care Corp., 1996 WL 87108. Linda Balderas Garcia met Adalberto Balderos in 1987 and they were married on March 12, 1988. At the time, Balderos was not aware that he was HIV+. Balderos was a hemophiliac who was apparently infected with HIV in 1980 while under treatment at Santa Rosa Health Care due to injection with tainted blood-clotting medication. In the mid-1980s Santa Rosa became aware of the possibility that its hemophiliac patients might have been exposed to AIDS, but, Garcia alleges, never contacted Balderos about that possibility. Balderos did not discover his infection until he became ill and was tested in December 1989. Garcia and Balderas were subsequently divorced. Garcia has not tested positive. Balderas and Garcia filed suit against Santa Rosa, alleging negligent failure to notify which, Balderas contends, delayed his treatment thus probably shortening his lifespan while needlessly exposing Garcia to the risk of HIV infection. Garcia claims infliction of emotional distress through Santa Rosa's negligence. Santa Rosa moved to dismiss Garcia's claims on grounds of statute of limitations and no duty owed to her, a non-patient. The trial court granted summary judgment for the defendant. In an opinion by Judge Yanez, the court of appeals held that Garcia could sue based on Santa Rosa's duty to notify Balderas about his potential exposure to HIV, since it was reasonably foreseeable that Balderas, ignorant of his HIV+, might unknowingly expose others to risk of infection. Thus, Garcia was a foreseeable beneficiary of Santa Rosa's duty to notify Balderas. The court found that the record of allegations by all parties filed around the summary judgment motion created a factual issue about whether Santa Rosa adequately notified Balderas when it mailed him notices and placed telephone calls asking him to come in for annual physical check-ups during the mid to late 1980s. (Balderas claimed that he was never expressly notified of potential HIV exposure, while Santa Rosa claimed the written notices all mentioned that HIV-testing would be part of the examination. Balderas never went for the annual physicals because he had time conflicts with his job and felt well.) On the limitations issue, the court found that Garcia was entitled to the benefit of the "discovery" rule, since there was no way she would know of her claim until Balderas became sick and was tested in 1989, and that the Texas statute setting a short limitations period for malpractice claims was inapplicable to her because she was never Santa Rosa's patient. A.S.L. Veterans' Appeal Court Rules on HIV Claim In a memorandum decision containing fewer than a thousand words, but nearly a hundred acronyms and abbreviations, the Court of Veterans Appeals upheld a ruling that a veteran's service connection for HIV should be made effective from the date he filed his first successful claim, not the date his symptoms first appeared. ZD v. Secretary of Veterans Affairs, 1996 WL 26173 (Vet.App. Jan. 18). ZD served in the Air Force from 1982 through 1985. In 1986, he complained of symptoms suggestive of HIV disease, and noted one "involuntary homosexual contact" on a medical form, but was misdiagnosed. ZD filed a claim for service connection for lymphoma, which was denied; the denial was not appealed. ZD was finally diagnosed with AIDS in 1991, and filed a new claim for service connection; in 1992, this claim was granted, with a 100% rating, effective as of its filing date. ZD contested the effective date, arguing that it should have been the date he first complained of symptoms. Ruling in 1994, the Bureau of Veterans Appeals (BVA) opined that in order to prevail, ZD would need to reverse the denial of his first claim; to do so, ZD needed to show, based on the facts as they were known in 1986, a clear and unmistakable error (CUE). The BVA found that ZD had failed to establish CUE. Writing for the appellate court, Judge Kramer obseon, or otherwise not in accordance with law," Kramer ruled that ZD had failed to meet this burden, and granted the Secretary's motion for summary affirmance. The treatment of HIV+ military personnel has received widespread attention lately, following the enactment of a law that mandates they be discharged and denied some of the benefits accorded to other veterans. President Clinton signed the law despite saying it was unconstitutional, and said his administration would not defend it in a court challenge. O.R.D. New Mexico Supreme Court Will Review Emotional Distress Issue The New Mexico Supreme Court announced that it will review a recent decision by the state's Court of Appeals that placed New Mexico in the minority of states that will allow a negligent infliction of emotional distress claim for an uninfected person who claims to have suffered emotional distress based on possible (but not actual) exposure to HIV. Madrid v. Lincoln County Medical Center, 909 P.2d 14 (N.M.App., Oct. 3, 1995), cert. granted, Dec. 7, 1995. Sonia Madrid was transporting medical samples from the hospital to a laboratory for analysis. Due to allegedly negligent packing of the samples, Madrid "was splashed on her hands and elsewhere with a bloody fluid."ted until she had repeatedly tested negative over a period of time. She claims emotional distress damages from time of exposure until such time as she was sure she was not infected. The trial judge granted the defendants' motion to dismiss, finding no actionable harm to a plaintiff who had not been shown to have actually been exposed to HIV (and thus who was never in danger of infection from this incident.) Reversing, the Court of Appeals reviewed the now-substantial caselaw from other jurisdictions on emotional distress claims brought by uninfected plaintiffs. The court noted that the majority trend had been to deny such claims where there was no "actual exposure," but concluded, in light of New Mexico's evolving very liberal approach to emotional distress claims in a variety of settings, that the New Mexico courts would side with the minority of jurisdictions that have allowed such claims. The court found that the hospital defendant did have a duty of care to a person in Ms. Madrid's situation, and that her factual allegations of breach of duty and emotional harm stemming directly from the breach were sufficient to state a cause of action. A.S.L. Supreme Court Refuses to Review HIV Insurance Fraud Case The U.S. Supreme Court denied certiorari in Fioretti v. Massachusetts General Life Insurance Co., 53 F.2d 1228 (11th Cir. 1995), cert. denied, 116 S.Ct. 708 (Jan. 8), in which the 11th Circuit upheld a decision that invalidated a life insurance policy issued to a person with AIDS who had used a "stand-in" to pass the HIV test required for purchase of the policy. The Court also refused to get involved in a dispute about the ability of drug companies to distribute generic versions of AZT, letting standing a Federal Circuit decision upholding the patent of Boroughs Wellcome (now known as Glaxo Wellcome). Barr Laboratories v. Burroughs Wellcome Co., 40 F.2d 1223 (Fed.Cir. 1994), cert. denied, 116 S.Ct. 771 (Jan. 16). A.S.L. NY Appellate Court Reverses Discrimination Detscriminated against an HIV positive woman who sought overnight accommodations. Rescue Mission Alliance v. Mercado, 1996 WL 42293 (N.Y.A.D. 4 Dept. Feb. 2). Evidence at the hearing showed that in December 1992, the complainant admitted herself to the Lydia Center, a program for drug and alcohol addiction that is a division of the Rescue Mission. During that stay, complainant informed the staff that she was HIV+. On July 1, 1993, complainant sought overnight accommodations at the Alcohol Crisis Cat she had no health problems, the staff member challenged that assertion because a check of a computer database revealed that complainant had previously informed the Mission that she had AIDS. Upon learning that the Mission had this information, the complainant became upset and ended up walking out the door. The Commissioner of Human Rights determined that there was a violation of the New York Human Rights law and ordered the rescue Mission to pay complainant $2,500 in compensatory damages. The Appellate Division found that the Commissioner's determination was not supported by substantial evidence and lacks a rational basis. Based on that determination the determination of the Commissioner was annulled. T.V.L. AIDS Law & Society Notes On Feb. 10 President Clinton signed the Defense Reauthorization Bill that contains a requirement for the discharge of all HIV+ service members without exception. Clinton announced that he considers this provision unconstitutional and only signed the bill because of other provisions he felt were necessary, including a long-deferred military pay raise. Clinton instructed the Justice Department not to defend this provision if it was attached in a law suit, and stated that discharges under the provision would be delayed to the last possible moment to allow for a lawsuit to be brought. A bipartisan coalition formed in the Senate behind a repeal bill. Meanwhile, the Clinton administration and the press appeared to collaborate on production of stori89. Sharpe announced he would appeal the verdict. New York Times, Feb. 18. The New York legislature approved a bill that would require Empire Blue Cross & Blue Shield to continue providing individual health insurance policies for 650 critically ill people whose insurance was to have been canceled at the end of 1996. Empire has been losing money on individual policies, and sought to cut out this business. The problem was that the individuals concerned would be barred from obtaining adequate auld sign it, his administration not having made any direct commitment on the measure. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS ANNOUNCEMENTS The Alliance for Justice has announced an essay contest for law students on the topic "Liberty Under S Raskin, Washington College of Law, Program on Law and Government, American University, 4400 Massachusetts Ave., N.W., Washington, D.C. 20016. LESBIAN & GAY & RELATED LEGAL ISSUES: Franke, Katherine M., The Central Mistake of Sex Discrimination Lpring 1995). Kent, Felix H., Advertising Law: The Use of the Term "Olympics", N.Y.L.J., 2/16/96, p.3 (interesting discussion of Gay Olympics decision by US Sup.Ct. [1987] and its ramifications for advertising law). Koppelman, Andrew, Gaze in the Mlitary's Policy on Lesbians, Gays and Bisexuals, 64 UMKC L. Rev. 199 (Fall 1995). Strasser, Mark, Domestic Relations Jurisprudence and the Great, Slumbering Baehr: On Definitional Preclusion, Equal Protection, and Fundamental Interests, 64 Fordham L. Rev. 921 (Dec. 1995). Testy, Kellye T., An Unlikely Resurrection, 90 Northwestern U.L.Rev. 219 (Fall 1995) (lesbian legal theory critique of contract law). Wells-Petry, Melissa, Sneaking a Wink at Homosexuals? Three Case Studies on Policies Concerning Homosexuality in the United States Armed Forces, 64 UMKC L. Rev. 3 (Fall 1995). Wilets, James D., Using International Law to Vindicate the Civil Rights of Gays and Lesbians in United States Courts, 27 Col. Hum. Rts. L. Rev. 33 (Fall 1995). Woodruff, William A., A Reply to Professor Koppelman, 64 UMKC L. Rev. 195 (Fall 1995) (see Koppelman, above). Woodruff, William A., Homosexuality and Military Service: Legislation, Implementation, and Litigation, 64 UMKC L. Rev. 121 (Fall 1995). Wolley, Alice, Excluded by Definition: Same-Sex Couples and the Right to Marry, 45 U. Toronto L. J. 471 (Fall 1995). Young, Gary L, Jr., The Price of Public Endorsement: A Reply to Mr. Marcossen, 64 UMKC L. Rev. 99 (Fall 1995) (Reply to Marcossen's article cited above, A Price Too High). Student Notes & Comments: D'Amato, Anthony Dominic, Conflict of Laws Rules and the Interstate Recognition of Same-Sex Marriages, 1995 U. Ill. L. Rev. 911. Little, Christine, Adoption: Parent Versus Parent Custody Battles When a Parent Is Gay or Lesbian: Is the Oklahoma Standard in the Best Interests of the Child?, 47 Okla. L. Rev. 695 (Winter 1994). Opie, George, The Free Exercise of Religion -- State Court Devalues Landlords' Constitutional Rights. Attorney General v. Desilets, 636 N.E.2d 233 (Mass. 1994), 20 S. Ill. U. L. J. 181 (Fall 1995). Paul, Richard M. III, and Derek Rose, The Clash Between the First Amendment and Civil Rights: Public University Nondiscrimination Cases, 60 Missouri L. Rev. 8 of Societal Ills?, 3 San Diego Justice J. 419 (Summer 1995). Wehren, Lisa, Same-Gender Sexual Harassment Under Title VII: Garcia v. Elf Atochem Marks a Step in the Wrong Direction, 32 Cal. Western L. Rev. 87 (Fall 1995). Constitutional Law -- Freedom of Speech -- D.C. Circuit Upholds Daytime Ban on Broadcast Indecency, 109 Harv. L. Rev. 864 (Feb. 1996). Book Reviews: Belknap, Joanne, Hate Crimes: Confronting Violence Against Lesbians and Gay Men, by Herek & Berrill, 20 Crim. Justice Rev. 81 (Spring 1995). Symposia: "Don't Ask, Don't Tell:" Gays in the Military, 64 UMKC L. Rev. No. 1 (Fall 1995)(individual articles noted above). Specially Noted: Last fall's as-yet unpublished decision by a New Jersey trial judge in Dale v. Boy Scouts of America (Monmouth County Superior Court) is subjected to an enthusiastic skewering by retired judge and former New Jersey State Bar Association President Martin L. Haines in his column in the New Jersey Law Journal of February 12. Haines po of the article: "Rampant Homophobia." In a lengthy op-ed piece titled "Mystique of the Phantom `Gay Gene': Biology or Diversity, The Hunt for Medical Clues of Homosexual Behavior Only Leads to Deeper Questions" (Seattle Times, Feb. 25), Prof. Philip L. Bereano of the Washington University College of Engineering takes on the genetic evidence on the cause of sexual orientation and finds it inconclusive and beside the point for purposes of deciding civil rights questions. His conclusion: "We nee afforded protection against discrimination based on their sexual orientation. It is naive to think that a biological explanation of homosexuality would provide a technological fix for the social problem of discrimination." Interesting reading. Just published: Sex Wars: Sexual Dissent and Political Culture, an anthology edited by Lisa Duggan and Nan D. Hunter, published by Routledge. Intended for use in courses on Lesbian and Gay Studies, Women's Studies, Law & Legal Studies, U.S. Politics, andIDS Phobia: Legal Implications of the Low Risk of Transmitting HIV in the Health Care Setting, 28 U. Mich. J. L. Reform 733 (Summer 1995) (Eric N. Richardson & Salvatore J. Russo, editors). Jacobs, Daniel J., AIDS: A Selective Bibliography of Legal, Social and Medical Aspects, Update 11, 50 Record of the Assoc'n of the Bar of the City of N.Y. 934 (December 1995). Pomeranz, Sharon, Condoms Overturned on Appeal: Teens Stripped of Their Rights, 4 Am. U. J. Gender & L. 219 (Fall 1995). Student Nouthwestern U. L. Rev. 205 (1995). Kohn, Laurie S., Infecting Attorney-Client Confidentiality: The Ethics of HIV Disclosure, 9 Georgetown J. Legal Ethics 547 (Winter 1996). Richardson, Eric Wade, Who Is a Qualified Individual With a Disability Under the Americans With Disabilities Act, 64 U. Cin. L. Rev. 189 (Fall 1995). Constitutional Law -- Due Process and Free Exercise -- Massachusetts Supreme Judicial Court Holds That School-Based Condom Program Does Not Violate Parents' Rights, 109 Harv. by a Cardiac Surgeon, 334 NEJM 555; R. Harpaz, et al., Transmission of Hepatitis B Virus to Multiple Patients From a Surgeon Without Evidence of Inadequate Infection Control, 334 NEJM 549. Both reports noted that documented cases of hepatitis transmission from surgeons to patients are rare. In an accompanying editorial, The Infected Health Care Provider, Dr. Julie Louise Gerberding of the University of California, San Francisco, discussed the risks of transmission of contagious agents during surgeng consent to operate] could be considered overly conservative." Dr. Gerberding pointed out that the ultimate risks of morbidity from transmission to patients is in the order of from 2.4 to 24 deaths per million operations. "This risk is one order of magnitude lower than the risk of anesthesia-associated mortality and at least three orders of magnitude lower than the risk of acquiring a postoperative wound infection. In fact, health care providers are far more likely than their patients to contraor or send by e-mail. * * * 1995 Case Tables for Lesbian/Gay Law Notes have been prepared for distribution to subscribers, and have been posted to the Queer Resources Directory on the Internet. Individual printed copies may be obtained from the Circulation person at LeGaL. A.S.L. Letters to Law Notes for March 1996 To the Editor, I am writing to correct a misstatement of facts concerning Boston Mayor Thomas M. Menino's position on the granting of health benefits to the domestic partners of City employees. In 1996 Lesbian/Gay Law Notes 7, it states "Backing away from a campaign pledge, Boston Mayor Thomas Menino refused to support pending city council legislation that would extend benefits to domestic partners of city employees." While Mayor Menino and Corporation Counsel Merita Hopkins have determined that the ordinance proposed by Boston City Councillor Thomas Keane and former Councillor John Nucci, is illegal under current state law, the Mayor has not backed away from his campaign pledge on this issue. When then acting Mayor Menino was asked in a questionaire from the Lesbian and Gay Political Alliance of Mass (formerly the Greater Boston Lesbian and Gay Political Alliance) whether he supported health insurance coverage for same sex domestic partners, he replied "I favor equivalent coverage for domestic partners to existing family benefits, and I will support efforts to amend (Mass General Laws) M.G.L Chapter 32B in order to make this legally permissible." Since 1992, the official legal opinion of the Corporation Counsel of the City of Boston has been that Chapter 32B does not permit the extension of benefits to the domestic partners of City employees. Mayor Menino has consistently supported the legal extension of benefits. In order to accomplish this, the Mayor has taken several steps: 1) he extended a Pilot Program which grants access to health benefits for domestic partners of city employees at the employee's expense; 2) he supported, and sent me to the state legislature to testify in favor of, legislation filed by the Mass. Gay and Lesbian Political Caucus, which would amend state law to allow benefits for state and municipal employees; and 3) he filed a home rule petition with the City Council to obtain approval from the Legislature to legally extend benefits. We are currently working on lining up support in the Boston delegation and from other legislators, so that we can win approval of the petition. There are some in the community who have a different interpretation as to the legality of simply extending the benefits outright under the current statute as written. Mayor Menino believes that the only proper way to legally extend the benefits is by amending state law or through home rule. We arinaccurate and unfair. John N. Affuso, Esq. Mayor's Liaison to the Gay and Lesbian Community City of Boston Editor's Response: We stand corrected. Our account was based on articles in the gay press. It is noteworthy that domestic partnership benefits ordinances in Atlanta and Minneapolis have been ruled invalid by state appellate courts, strictly interpreting statutes that describe benefits entitlements of municipal employees and their dependents. (The Atlanta case produced a sharply split Georgia Supreme Court, with a strong dissenting opinion.) It is possible that Massachusetts courts would follow a similar route were Boston to enact a benefits ordinance. The position statement from the campaign quoted by Mr. Affuso suggests that the Mayor's position is influenced by this legal analysis.