LESBIAN/GAY LAW NOTES ISSN 8755-9021 April 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; Eva G. Anthony, David Pumo, Ross D. Levi, Students, 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 GEORGIA SUPREME COURT REJECTS SODOMY LAW CHALLENGE A majority of the Georgia Supreme Court ruled March 11 that L. Chris Christensen's conviction for soliciting a police officer to go to a motel to engage in oral sex did not violate the state constitution, but only a plurality of the court joined the lead opinion rejecting a challenge to the state's sodomy and solicitation laws. Christensen v. State, 1996 WL 102359. Two other justices signed the plurality opinion by Justice Hugh P. Thompson. Two other justices concurred in the result only (one in a two-sentence opinion rejecting the proposition that state privacy rights would apply to a solicitation made in a public place, the other without written opinion), and the two women on the court, Justices Leah J. Sears-Collins and Carol W. Hunstein, filed dissenting opinions. The facts of the case are strikingly similar to the facts of Commonwealth v. Wasson, 842 S.W.2d 487, in which the Kentucky Supreme Court invalidated that state's sodomy law in 1992. Chris Christensen was hanging out at a rest stop on Interstate 20 when he was approached by an undercover police officer wearing a microphone. The officer recorded Christensen in a somewhat ambiguous conversation in which Christensen agreed to follow the officer to a nearby motel where they might engage in oral sex. Christensen was arrested when he drove to the motel. His defense was that his solicitation was lawful, protected free speech, because oral sex between consenting adults in private is protected by the right of privacy under the Georgia constitution. The trial court rejected this argument and a jury convicted Christensen of a misdemeanor, for which he was sentenced to 12 months probation. In his plurality opinion, Thompson conceded that the Georgia courts have found a right of privacy in Art. I of the state constitution, but asserted that when "a privacy interest is implicated, the state must show that the legislation has a `reasonable relation to a legitimate state purpose.'" Thompson characterized this as a routine police power case, quoting Supreme Court Justice Byron White's opinion in Bowers v. Hardwick (in which the Supreme Court upheld this sodomy statute against a federal privacy challenge) to the effect that morality may provide the basis for such legislation. "We hold that the proscription against sodomy is a legitimate and valid exercise of state police power in furtherance of the moral welfare of the public," stated Thompson with no further explanation or discussion of the point. Turning to the free speech argument, Thompson cited authority for the proposition that speech advocating violation of the law is not protected. Sodomy is a felony in Georgia, noted Thompson, and "Reasonable prohibitions against soliciting unlawful acts do not violate free speech rights." In a final paragraph of this extremely terse opinion, Thompson acknowledged that other states had "decriminalized consensual sodomy," but asserted that most such reform had been achieved legislatively. "The right to determine what is harmful to health and morals or what is criminal to the public welfare belongs to the people through their elected representatives. We decline to usurp what is the power of the legislature." This drew a lengthy, impassioned dissent from Justice Sears- Collins, who has emerged as an eloquent voice for gay rights on the Georgia court. (See, e.g., City of Atlanta v. McKinney, 454 S.E.2d 517 (Ga. 1995); Tedder v. State, 463 S.E.2d 697 (Ga. 1995); Van Dyke v. Van Dyke, 425 S.E.2d 853 (Ga. 1993).) Accusing the court of evaluating "the guaranteed rights of privacy and free speech under incorrect constitutional standards," she characterized the plurality decision as marking "a corrosion of rights guaranteed to the citizens of this State" and called the "majority opinion" "pathetic and disgraceful," asserting that it "has tragic implications for the constitutional rights of the citizens of this State." Strong words, indeed, but Justice Sears-Collins goes far to vindicate them. In her privacy analysis, she cites numerous Georgia precedents for the proposition that when individual privacy rights are implicated under a state law, the appropriate standard of judicial review is strict scrutiny, not a rationality test. She argues that Georgia precedents strongly support the Millian proposition that private conduct that does not harm another person is beyond the penal reach of the state. "Insofar as Georgia's citizens keep their conduct to themselves and do not interfere with the rights of others, the State has no legitimate concern," she wrote. She characterized as "no freedom at all" the freedom that can only be exercised if consistent with majority moral views. "Rather, it is a mark of despotism, and a step backward toward the majoritarian tyranny that our founders sought to escape." Sears- Collins noted the accelerating trend of decriminalization, most recently by judicial decision, in a majority of states to illustrate that striking down the law would place Georgia's courts in the mainstream of contemporary jurisprudence, and accused the court of ignoring these precedents. She follows this introduction with a lengthy refutation of the various justifications proffered by the state for the sodomy law. Turning to the free speech point, Justice Sears-Collins again accuses the court of using the wrong test. First she develops the theme that, as the state itself conceded before the U.S. Supreme Court that consensual sodomy between married persons would be constitutionally protected, the solicitation and sodomy statutes are clearly overbroad since on their face they would proscribe either soliciting or engaging in such conduct. She also asserted that the sort of "clear and present danger" of inciting lawless conduct analysis used by the court in this case was totally inappropriate to the instant case. "The clear and present danger doctrine has never been applied to situations where a verbal solicitation is punishable as a mere misdemeanor, nor does the majority cite any precedent for that proposition," she argued, concluding that the decision as a whole undermines the social contract between the state and its citizens. Justice Hunstein's dissent, though less impassioned, is not less pointed in criticizing the majority of the court. "I cannot agree with the majority's conclusion that the `moral welfare of the public' requires this Court to uphold a statute that criminalizes all private, consensual sodomy," she wrote, pointing out that the law as it stands is invalid, apart from the privacy argument, "because criminal statues like it, which are defined based upon the body parts involved during private consensual sex, which are ignored and ridiculed by the populace, and which are enforced with discriminatory selectivity, can only breed contempt and foster disdain and disrespect for the law, the State, and the law enforcement community." Christensen was represented in the case by Jane E. Fahey, a partner at Bondurant, Mixson & Elmore, with amicus support from the Stonewall Bar Association of Georgia and Lambda Legal Defense & Education Fund. A.S.L. CONNECTICUT SUPREME COURT BARS MILITARY RECRUITERS FROM LAW SCHOOL In an opinion made public March 19 but not officially released until March 26, the Connecticut Supreme Court held that the University of Connecticut Law School must bar military recruiters from the placement office at its Law School. The ruling came on the University's appeal of an injunction issued by the Superior Court in Hartford at the instigation of a gay student group at the law school. Gay and Lesbian Law Students Association v. Board of Trustees, University of Connecticut, No. 15191. The dispute between the justices in the 3-2 ruling was mainly over the interpretation of Conn. Stats. sec. 10a-149a, a law concerning military access to educational institutions in the state. The case began in 1992 when the University administration turned down a request by Gay and Lesbian Law Students Association to enforce the school's non-discrimination policy by barring military recruiters. The Students premised their request both on the school's non-discrimination policy and a recently-enacted Connecticut statute banning sexual orientation discrimination. The school's refusal was premised on the military access law, which provides: "Notwithstanding any other provision of law to the contrary, each constituent unit of the state system of higher education and any private college or university which receives state funds shall. . . provide the same directory information and on-campus recruiting opportunities to representatives of the armed forces of the United States of America and state armed services as are offered to nonmilitary recruiters or commercial concerns." The school interpreted this to require military access despite the non- discrimination policy and law. The Student Association filed suit, claiming violations of both statutes and breach of contract, arguing that the School's non- discrimination policy was part of an enforceable contract with each student. In her opinion for the court, Justice Joette Katz preliminarily disposed of a variety of procedural and jurisdictional arguments by the defendants before proceeding to the main point: that the two statutes could be harmonized in a way that supported the issuance of injunctive relief against the School administration. Katz rejected the state's argument that the Student Association had suffered no harm by military recruitment and thus was not entitled to any judicial relief. Katz observed that the placement office was an important service for students at the school, and that allowance of discriminatory employers to use the office would impose a distinct harm on the lesbian or gay students. As the parties had stipulated that the armed forces discriminate on the basis of sexual orientation, that was taken as a given. The parties also agreed that military recruiters were the only recruiters who discriminated on the basis of sexual orientation whom the school desired to exempt from its policy; other discriminatory employers were barred from the placement office. Turning to the access statute, Justice Katz adopted an interpretation similar to that embraced by the New York Court of Appeals in Lloyd v. Grella, 83 N.Y.2d 537, 634 N.E.2d 171, 611 N.Y.S.2d 799 (1994), which held that such an equal access statute merely provided that military recruiters be subject to the same access rules as other employers. Katz reviewed the legislative history of the Connecticut statute and concluded that legislators did not intend to put the military in a special status, but rather to forbid schools from imposing special rules for the military. Since the parties agreed that the placement office was openly only to non-discriminatory employers and that the military pursues a discriminatory policy, the result clearly followed that the military must be barred. Katz's opinion, joined by Justices Berdon and Norcott, made the point that the state had by enacting a gay rights law declared a "strong public policy" of protecting gay people from discrimination, so the military access law should be strictly construed to achieve that policy. Justice Berdon filed a concurring opinion focusing exclusively, and at considerable length, on refuting the dissenters' arguments about the language and legislative history of the access statute. The dissent by Justice Callahan, joined by Justice Palmer, seized upon the opening phrase of the access law, "Notwithstanding any other provision of law to the contrary. . .," and argued that this clearly meant that the sexual orientation discrimination law was not to be applied to the issue of military access. Further, Callahan noted that the access law (which predated the amendment adding sexual orientation to the discrimination law) was enacted in response to the action of several schools in the state barring military recruiters in protest of the exclusion of gays from military service, providing the basis to argue that the legislators would not have intended to compel the schools of the state to bar military recruiters, much less even to allow such bans to be adopted voluntarily by the schools. Curiously, none of the opinions in the case discussed supremacy or preemption principles, which had been construed by a federal court years ago to block the city of Philadelphia from compelling Temple University Law School to bar military recruiters. Neither did any of the opinions mention federal laws that debar schools that exclude military recruiters from receiving any money appropriated under Defense Department appropriations bills. All of the opinions focused narrowly on construction of the state military access law. The Gay and Lesbian Law Students Association was represented by Philip D. Tegeler and ACLU staff attorney Marc Elovitz, with briefing assistance from Martha Stone and ACLU staff attorneys Ruth Harlow and Matt Coles. A.S.L. LESBIAN/GAY LEGAL NEWS California Supreme Court Clarifies Standards for Selective Prosecution Defense In Baluyut v. Superior Court of Santa Clara County, 50 Cal. Rptr.2d 101, 911 P.2d 1, 1996 WL 90603 (March 4), the California Supreme Court unanimously held that, in order to establish a claim of selective prosecution, a criminal defendant was not required to show that the authorities acted with the specific intent to punish the defendant for membership in a specified class. The defendants in this case were represented by Bruce Nickerson, with Sean Selegue appearing as amicus curiae. The defendants had been charged with disorderly conduct under a statute defining such conduct as including the solicitation of another to engage in lewd conduct in a public place. In each case, the charge arose from an encounter between a male police decoy and the male defendant outside a particular adult bookstore. The police officer used small talk to initiate a conversation with the defendant. Eventually, the officer would accompany the defendant to the officer's or the defendant's automobile, at which point the defendant would be arrested. The defendants claimed that they were victims of selective prosecution by the city's police force, which, the defendants believed, was focusing solely on arresting gay men outside the bookstore. Records from the city's police force for the two years prior to the defendants' arrest apparently substantiated this allegation, as the trial court concluded that the police operation was designed to identify gay men and lead to their arrest. Although the defendants' prosecutions had been terminated by the trial court in the interests of justice, the supreme court nevertheless granted review, the court holding that the question presented -- whether an intent to punish a criminal defendant was an element of a selective enforcement claim -- involved a matter of continuing public interest and was likely to recur. The court observed that a selective prosecution claim raised a constitutional objection rather than a "defense" in the ordinary usage of the latter term. The constitutional defect, the court observed, was the denial of equal protection to members of the class targeted for prosecution. Canvassing its previous opinions, the court found a consistent articulation of the elements of a selective prosecution claim: The defendant was required to establish that the authorities deliberately singled the defendant out for a prosecution that would not have occurred in the absence of this discriminatory intent. Confusion arose, though, because a California court of appeal decision, People v. Smith, 155 Cal. App.3d 1103 (1984), had articulated an "intent to punish" standard and appeared to view it as an additional requirement. The court found no basis for the addition of this gloss to existing jurisprudence. While previous decisions had held that mere inconsistent enforcement of the law failed to rise to the level of selective enforcement, this did not imply that a specific intent to punish the defendant was required. The intent that was required, the court stressed, was merely the intent to single out a class, or a member of a class, for a prosecution that otherwise would not have occurred. The court also emphasized that, inasmuch as a selective enforcement claim was of constitutional dimension, a state judiciary was not permitted to define the claim more restrictively than had the United States Supreme Court, and that court, in decisions such as Wayte v. United States, 470 U.S. 598, had never described an intent to punish as an element of the claim. And, while Wayte had held that mere discriminatory effect was insufficient to demonstrate selective prosecution, the court interpreted this to mean only that discriminatory intent -- not an intent to punish -- was necessary to establish the claim. It is important to observe that the court in this decision expressly limited its discussion and holding to the narrow issue of whether an intent to punish was an element of a selective enforcement claim. Accordingly, the court declined to address whether the defendants had actually proven selective enforcement. R.M. Georgia Appeals Court Lifts Restriction on Gay Dad's Visitation Rights In In re R.E.W., 1996 WL 99709 (Ga. App., March 7, the Georgia Court of Appeals ordered the Juvenile Court to award the gay father of an 8-year-old girl unsupervised weekend, holiday, and summer visitation. Five years after the parents divorced, the father sought to replace his supervised visitations with his daughter for unsupervised ones. The Court of Appeals rejected the Juvenile Court's determination that the father was engaged in an "immoral homosexual relationship" and could not be trusted to keep the nature of his relationship from his daughter. The Juvenile Court originally found that the father was untrustworthy because, prior to the divorce, his wife had discovered him with another man in their bedroom. But the record showed that the father has now been in a four-year-old monogamous relationship; that he did not believe it would be in his daughter's best interests to reveal the nature of his current relationship; that he and his partner had separate bedrooms; and that even the father's own mother did not know the nature of his current relationship even though she had visited his home several times. The record also showed that the father had maintained a good relationship with his daughter. The Court of Appeals held that the question in visitation matters was "not the sexual mores or behavior of the parent, but whether the child will somehow be harmed by the conduct of the parent." The court emphasized that it was the child's best interests that determined custody issues and not "the sexual preferences of the parent. . . . [P]arents, married or not, are individual human beings each with his or her own particular virtues and vices." Courts should look not at the faults of the parents, but the needs of the children. The court here agreed with the father that prolonging the supervised visits could begin to harm his daughter and she would begin to question their restricted relationship and learn the truth eventually, so supervised visitation was not necessary or prudent. M.S.R. Conservative District Judge Zaps Military Policy In 1995, the U.S. District Court for the Eastern District Virginia ruled in Thomasson v. Perry, 895 F.Supp. 820, that the "Don't Ask, Don't Tell" policy did not violate a gay soldier's First Amendment right of free speech. Now, in Thorne v. U.S. Dept. of Defense, 1996 WL 96924 (March 4), Judge Thomas S. Ellis III (a Reagan appointee), writing for the same court, has all but declared the policy unconstitutional. It is a story that is all too familiar. Lieutenant Tracy Thorne graduated from the Aviation Officer Candidate School at the top of his class. After earning the title of Naval Flight Officer, he trained as a bombardier/navigator and ultimately joined Attack Squadron VA-65 at the Naval Air Station in Oceana, Virginia, all the while earning the notice and praise of his commanding officers. On May 19, 1992, Thorne appeared on the ABC television network program "Nightline" and publicly announced his homosexuality. Thorne immediately received notification of discharge proceedings. While the proceedings were pending the Secretary of Defense began to review the policy concerning gays and lesbians in the military. Thorne's discharge was temporarily suspended awaiting the new policy. President Clinton signed the "Don't Ask, Don't Tell" policy into law on November 30, 1993, and Thorne's case was reconsidered under the new regulations. Under the policy, a service member would be discharged for stating that he or she is homosexual, unless there are further findings demonstrating that the member is not a person who "engages in, attempts to engage in, has a propensity to engage in, or intends to engage in" homosexual acts. The Board of Inquiry found that Thorne's statement that he was a homosexual created a rebuttable presumption that he had a propensity to engage in homosexual conduct. The Board also found that he failed to rebut the presumption. Thorne was discharged on March 9, 1995. He immediately filed this suit claiming that the policy violates the Free Speech Clause of the First Amendment. Judge Ellis proceeded with a two-step analysis, first determining that the policy appeared to be a restriction on speech, and as such, implicated the First Amendment, and second, that the appropriate degree of judicial scrutiny for a content-based restriction on speech, in the context of the military, is a moderated version of strict scrutiny. Ellis concluded that if the record, as supplemented by the parties, still showed that the policy in its manner of implementation is a content-based restriction on speech, then it would fail heightened scrutiny and violate the First Amendment. The government argued that the "Don't Ask Don't Tell" plan is not directed at speech and that the statement "I am gay" merely creates a rebuttable presumption that the person engages in or has a propensity to engage in prohibited conduct. Thorne's position was that the presumption was irrebuttable short of recantation; therefore, the policy served to dismiss service members who say they are gay. The court agreed that on its face, the presumption seemed irrebuttable. Judge Ellis pointed out that "propensity," as defined by the Oxford English Dictionary, means "a disposition or inclination to some action." So it seems that the only way a service member who states "I am gay" can rebut the presumption is to demonstrate to the fact finder that he or she is not gay. The government, however, defines propensity as a "likelihood." So theoretically, the presumption is rebuttable by convincing the fact finder that although the member is a homosexual, it is not likely that he or she will engage in homosexual acts. But the government was not able to produce any hard evidence that anyone has, in practice, successfully rebutted the presumption short of recantation. Indeed, in light of cases such as Richenberg v. Perry, 73 F.3d 172( 8th Cir. 1995) (unchallenged sworn statement by Richenberg that he did not and would not engage in homosexual acts not sufficient to rebut presumption), it seems that recantation is the only way to rebut the presumption. Finding the record inadequate to reach a conclusion on this issue, the court directed the parties to supplement the record with facts on which the court could evaluate whether in practice the presumption was rebuttable without a recantation. In any case, the government argued that even if "Don't Ask, Don't Tell" is determined to be a restriction on speech rather that conduct, it would still pass First Amendment muster. The court did not agree. Ordinarily, regulated content-based speech would be subject to strict judicial scrutiny, meaning that the government would have the burden of showing the policy is necessary to achieve a compelling interest. However, since military regulations are afforded greater deference, strict scrutiny could not be applied. The court also dismissed an intermediate scrutiny test which is applied to content-neutral time, place, and manner restrictions, a category into which "Don't Ask, Don't Tell" does not fit. Accordingly the court settled on a deferential version of strict scrutiny that would require the government to show that the military restriction must substantially further an important governmental interest in order to pass First Amendment muster. "Don't Ask, Don't Tell" fails this test because the government could not show that dismissing service members who "tell" substantially furthers the goals of the policy. The government offered "unit cohesion" as the interest to be served by the policy, unarguably an "important" interest. Also identified were three aspects of that interest: (1) preserving privacy among service members, (2) minimizing sexual tension, and (3) preventing unit polarization. First, the government argued that a service member's privacy would be invaded if forced to live and shower with another member who may find him or her sexually attractive. The court pointed out that while this may be an argument for an outright ban on gays in the military, it does not explain how a soldier's privacy is protected by dismissing a service member who states "I am Gay" while allowing gays who do not make this statement to remain. In addition, "Don't Ask, Don't Tell" serves to accomplish exactly what the government says it wants to prevent by assuring that gays who do not make the "I am gay" statement will remain in service. Second, the government argued that throwing openly gay service members in with heterosexual personnel would create destructive sexual tension. Yet, since the Directive explicitly states that the rebuttable presumption is not triggered by "associational activity such as going to a gay bar, possessing or reading homosexual publications. . . or marching in a gay rights rally in civilian clothes," it is difficult to see how sexual tension is minimized by banning members who state "I am gay," while allowing other gays to serve. Finally, the government argued that allowing openly gay members to serve would polarize the unit, with those in favor of a ban on gays in the military on one side, and those not in favor on the other side. This, of course, fails for the same reason as the others. The policy allows one who advocates gay rights, marches in gay parades, and goes to gay bars, to serve in the military, as long as he or she does not make the statement "I am gay." Preventing unit polarization is not substantially furthered by dismissing only those that make that statement since the gays permitted to remain could cause the same degree of debate or unrest. In an interesting footnote, Judge Ellis noted that polarization as described by the government could result from many issues such as race, religion, or ethnicity, and he contemplated whether such an argument would be tolerated in support of a "Don't Ask, Don't Tell" policy for Jews or Muslims. That it would not is clear, as our institutional leaders would not permit it. Judge Ellis added that "If the leaders of those institutions understood prejudice against homosexuals as a fiction born of ideology, then that view would eventually permeate society and eliminate any potential polarization stemming from the service of openly gay people in the military, just as leadership has helped. . . to ensure that attitudes among service members about religion and race tend to tolerance." E.T.G. Navy Can Discharge Member Who Say's He's Gay and Refuses to Rebut the Presumption That He Will Engage in Homosexual Conduct U.S. District Judge Thomas Zilly ruled March 7 against Lt. Richard P. Watson's challenge to the "Don't Ask, Don't Tell" military policy. Watson v. Perry, 1996 WL 115473 (W.D.Wash.). Watson, who first enlisted in the Navy in 1981 and was singled out early for officer potential and sent for special training, spent several years on active duty and in 1992 became a member of the ROTC faculty at Oregon State University. On October 28, 1994, Watson sent his commanding officer a letter in which he stated: "I have a homosexual orientation. I do not intend to rebut the presumption." Defense Department regulations provide that any service member who says that he is "homosexual" is presumed to have a propensity to engage in homosexual conduct, and is thus to be processed for discharge unless he can rebut the presumption. Watson later supplemented this statement by indicating that he had not and would not engage in homosexual conduct with any military student or service member, had not and would not engage in such conduct while on military duty or on any military installation, and that he had no propensity to do any of these specified things. From these statements, Naval authorities drew the inference that Watson had or would engage in homosexual conduct off-duty and off-base with non- military personnel. Thus, Watson was processed for discharge. He obtained temporary injunctive relief from Judge Zilly pending the outcome of his challenge to the policy. Stating that his "decision to grant the Government's motion for summary judgment should not be interpreted as an endorsement" of the military policy "or the way that it has been applied in general," Judge Zilly concluded that Watson's statements made it impossible to rule in his favor in this case. The 9th Circuit has already held in Meinhold v. U.S. Department of Defense, 34 F.3d 1469 (1994), that the military may prohibit its members from engaging in homosexual conduct. So long as the action against Watson is taken because of the reasonable negative inference that he has or will engage in such conduct (by stating that he won't rebut the presumption and that he does not have a propensity to engage in homosexual conduct with military members, on duty, or on military installations) rather than solely on the basis of his homosexual, Zilly found, Watson was not in a position to mount a facial challenge to the policy. In any event, a facial challenge would require a finding that there was no constitutional way in which the policy could be applied, and Zilly found that the policy could constitutionally be applied to somebody such as Watson, rejecting equal protection, due process, and first amendment arguments. Zilly's opinion engages in rather intricate reasoning to reach his conclusions. It is clear that the judge doesn't like the policy, but it is also clear that he wrote this opinion with one eye on the 9th Circuit, which is itself rather sharply conflicted about the whole issue of military services by gay people. The 9th Circuit heard oral argument in another military case presenting similar issues, Philips v. Perry, on March 7. ACLU Gay & Lesbian Rights Director Matt Coles argued to the court that even though Philips was not maintaining that he was or would remain celibate, nonetheless the military policy violated his right to equal protection of the laws because he was forbidden to engage in conduct off-duty that was not forbidden to heterosexual service members, and there was no rational basis for applying the double standard. (It is noteworthy that a heterosexual service member who engages in homosexual conduct may be retained in the service if he can demonstrate that his conduct does not reflect his true sexual orientation or sexual propensities.) The district court decision ruling against Philips can be found at 883 F.Supp. 539 (W.D.Wash. March 17, 1995). Seattle Post-Intelligencer, March 8. A.S.L. 11th Circuit Vacates Shahar Decision for En Banc Review Late in 1995, a three-judge panel of the 11th Circuit ruled that Georgia Attorney General Michael Bowers may have violated the constitutional rights of Robin Shahar, a lesbian attorney, when Bowers terminated Shahar's employment with the Georgia Law Department after learning that Shahar and her partner were having a same-sex marriage ceremony. Shahar v. Bowers, 70 F.3d 1218 (11th Cir. 1995). The panel ruled that unless Bowers could come up with a compelling reason for withdrawing Shahar's job, his action would violate Shahar's right of intimate association under the federal constitution. Bowers petitioned for rehearing en banc, which has now been granted by the 11th Circuit, which results in vacating the original opinion. The entire appeal court of eleven judges will hear the argument, according to a March 12 report in the Atlanta Journal-Constitution. A.S.L. 4th Circuit Panel Dismisses Same-Sex Harassment Claim on Ground That Conduct Was Insufficiently Pervasive or Severe to Violate Title VII In January, the 4th Circuit ruled in McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191, that Title VII did not apply to hostile environment claims "where both the alleged harassers and the victim are heterosexuals of the same sex." On March 5, another 4th Circuit panel dismissed a same-sex harassment claim in Hopkins v. Baltimore Gas & Electric Co., 1996 WL 93733, but despite unanimity about the dismissal, two members of the panel refused to sign on to part of Judge Niemeyer's opinion discussing the theoretical issue of whether Title VII would ever apply in a same- sex harassment case. Ultimately, Niemeyer grounded dismissal on a finding that the conduct complained about by the plaintiff was neither so pervasive nor so severe as to constitute a hostile environment within the meaning of Title VII. Concurring Judges Wilkinson and Hamilton argued that as a result of this finding, there was no need to write about the theoretical basis for a same- sex harassment action, especially when the 4th Circuit had recently articulated a position on the issue (with which Judge Niemeyer apparently disagrees). In the disputed portion of the opinion, Niemeyer rejects the reasoning of the 5th Circuit in Garcia v. Elf Atochem North America, 28 F.3d 446 (1994), holding that same-sex harassment is never actionable under Title VII. Finding the reasoning of that case non-persuasive, Niemeyer opined that "only the sex of the employee [who is claiming harassment] is relevant in determining whether Title VII is implicated." The sex of the alleged harasser is irrelevant; the issue is whether the plaintiff was being harassed because of his gender. Niemeyer argues that under the Supreme Court's Meritor decision, which first recognized the hostile environment theory under Title VII, "the Supreme Court concluded that sexual harassment, which is sufficiently severe and pervasive to alter the conditions of employment, constitutes discrimination of the type prohibited by Title VII. I therefore conclude that sexual harassment of a male employee, whether by another male or by a female, may be actionable under Title VII if the basis for the harassment is because the employee is a man." The more difficult question, says Niemeyer, is what proof to require of a plaintiff in such a case. "The principal way in which this burden may be met is with proof that the harasser acted out of sexual attraction to the employee," explained Niemeyer: "I recognize that conduct directed toward an employee of the same gender as the harasser can have sexual content or innuendo and, indeed, may be offensive. But unless such harassment is directed toward an employee `because of' his or her status as a man or a woman, it does not implicate Title VII. I reject the notion that when a man, for example, uses sexually oriented gestures and language, or engages in sexually perverse activity to harass another man, Title VII automatically imposes liability. Such conduct may constitute a common law tort, but, without more, it does not amount to discrimination against the employee because he is a man." Refusing to sign on to this portion of Niemeyer's opinion, Judge Wilkinson argued that it was "inadvisable" because "unnecessary to the resolution of this case." Claiming sanctuary in judicial restraint, Wilkinson argued: "If Title VII is to be extended to cover a whole new generation of same sex harassment claims, it is far better that it be accomplished by legislative action than by judicial fiat. The last place to reach out to recognize such claims is a case whose lack of merit is, in all events, apparent." Perhaps it is noteworthy that the facts alleged by Hopkins sound like he was being subjected to sexually suggestive conduct by a gay supervisor, but alternative interpretations of the facts are also possible. A.S.L. Same-Sex Harassment Actionable in Northern District of Illinois Continuing a nationwide trend, and following a similar decision by Judge Leinenweber of the same court in January (see LGLN for February, at 20), Judge Shadur of the U.S. District Court for the Northern District of Illinois has ruled that same-sex harassment is actionable under Title VII. Kaplan v. Dacomed Corp., 1996 WL 89148 (Feb. 27). Plaintiff Lisa Kaplan accused defendants Dacomed and Marsha Ramsey of "offensive sex-related conduct (not in the nature of sexual advances, however)," according to Shadur's opinion. Dacomed argued that Title VII does not apply to same-sex harassment. In a brief memorandum, Shadur acknowledged the still-developing case law on this issue, beginning with Goluszek v. H.P. Smith, 697 F.Supp. 1452 (N.D.Ill. 1988), in which Judge Williams dismissed a same-sex harassment claim on the theory that Congress did not intend use of Title VII to deal with same-sex issues, and noting that the Supreme Court has yet to rule on the issue. Reading support for Kaplan's position implied between the lines of Baskerville v. Culligan Int'l Co., 50 F.3d 4128 (7th Cir. 1995), Shadur denied Dacomed's motion to dismiss. O.R.D. Federal Court Temporarily Blocks Part of Telecommunications Act The U.S. District Court for the Eastern District of Pennsylvania granted a temporary restraining order (TRO) which will prevent the government from enforcing one of the "indecency" sections of the recently-passed Federal Telecommunications Act of 1996. In ACLU v. Reno, 1996 WL 65464 (E.D.Pa., Feb. 15), Judge Buckwalter granted the TRO against part of the section known as the Communications Decency Act of 1996 (CDA), which makes it illegal to knowingly make, create, or solicit, and then initiate the transmission of an obscene or indecent communication by means of a telecommunications device in interstate or foreign communications to a person under 18 years of age. The judge agreed that Congress has a compelling interest in protecting the physical and psychological well-being of minors, and that the plaintiffs failed to prove the Congress failed to narrowly tailor the CDA. He wrote, however, "that the plaintiffs have raised serious, substantial, difficult and doubtful questions . . . that the CDA is unconstitutionally vague in the use of its undefined term, `indecent,'" pointing out that the U.S. Supreme Court has never actually defined the word "indecent." Because a criminal felony prosecution would turn on that definition of the word, the section's vagueness would make its enforcement a violation of due process. "It is a most compelling constitutional reason to require of a law that it reasonably informs a person of what conduct is prohibited, especially when violation of the law may result in fines, imprisonment, or both." The ACLU also petitioned for a TRO for the section that provides for fines or imprisonment for a person who knowingly uses an interactive computer service to display in a manner available to persons under 18 years of age any communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs. The court denied that motion, since it failed to find the patently offensive provision unconstitutionally vague. R.D.L. Ohio Supreme Court Refuses to Review Dismissal of Wrongful Discharge Claim by Gay Lawyer Scott Greenwood, discharged as an associate by the law firm of Taft, Stettinius & Hollister in Cincinnati, claims that his discharge was due to his activism in connection with the enactment and subsequent repeal of the Cincinnati gay rights ordinance. Claiming that discharging him because he is gay and politically active in this manner violates the public policy of Ohio, Greenwood filed suit alleging wrongful discharge in violation of public policy. The trial court granted the law firm's motion to dismiss, and was sustained by the court of appeals. (Another count of Greenwood's complaint, alleging breach of privacy, still remains for trial.) On March 6, the Ohio Supreme Court refused to review the dismissal by a 4-3 vote. Greenwood v. Taft, Stettinius & Hollister, 1996 WL 106336. In a brief written dissent, Justice Paul Pfeifer, joined by Chief Justice Thomas Moyer, contended that the case "involves a matter of great public or general interest, concerns an area which this court has not recently addressed, and presents novel legal issues." Pfeifer said that the following "novel questions" deserved a response from the court: "Can an employer in Ohio fire an employee based upon his sexual preference? Does the Code of Professional Responsibility enunciate a public policy that lawyers should not be fired because of the clients they choose to represent? Does the recently adopted Disciplinary Rule prohibiting discrimination based on sexual orientation (DR 1-102[B]) provide the requisite public policy?" Justice Douglas also dissented without opinion. Cincinnati attorney Alphonse A. Gerhardstein represented Greenwood on the appeal. The court of appeals decision is unofficially reported at 64 USLW 2224, 10 Ind. Emp. Rgts. Cases 1744, 1995 WL 540221 (1995). A.S.L. NY Court Imposes Constructive Trust in Property Dispute Involving Same-Sex Couple In Hanselman v. Shepardson, 1996 WL 99377 (U.S. Dist. Ct., S.D.N.Y., March 7), District Judge John S. Martin denied in part the defendant's motion for summary judgment, ruling that a genuine issue of fact existed which could help resolve the question whether a constructive trust should be imposed on properties acquired by a male couple during their 15-year relationship. In 1993, Ran Hanselman and Charles Shepardson ended their relationship, during the course of which the couple acquired two properties, one in New Jersey and the other in Florida. Hanselman alone purchased the New Jersey property, a lot upon which the couple built their house. Shepardson operated a landscaping business from the house, the profits of which were placed in the couple's joint bank account. In 1987, Hanselman put Shepardson's name on the deed. In that same year, the couple purchased the Florida property. Hanselman claims he bought the property with his own funds, but Shepardson asserts it was purchased out of funds from their joint bank account. Both parties' names are on the deed to the Florida property. Hanselman claimed that he included Shepardson's name on both deeds to ensure that if Hanselman died, Shepardson would have "a place to live and financial security". Hanselman alleged that Shepardson agreed to surrender claim to the properties if the relationship ended or if Shepardson became financially independent. Based on these oral promises, Hanselman asserted that Shepardson was not entitled to an interest in either property and thus the court should impose a constructive trust on the properties. In upholding this claim, the court explained, "a constructive trust arises when a person holding title to the property is under an equitable duty to convey it to another", and would be "unjustly enriched" if such person held onto the property. The court enumerated instances where constructive trusts are usually imposed, including fraud, duress, undue influence, mistake and transfers made in anticipation of death. The court noted, however, that as a court of equity it is not bound by any rigid formula and that where unjust enrichment may be found, the imposition of a constructive trust may be appropriate. Here, the court found that there are factual issues which need "to be resolved to determine whether a constructive trust should be imposed." The court reasoned that due to the length and nature of their relationship, the parties "likely placed great trust and confidence in one another," and that the defendant may have abused that trust by not reconveying the land back to the plaintiff after the relationship ended. The court also could not decide, on a motion for summary judgment, whether the defendant would be unjustly enriched if he retained the property. Also, the court noted, even if a constructive trust would not be appropriate under these facts, Hanselman's claim should be upheld since sufficient issues of fact were raised as to whether Shepardson should have to repay Hanselmen $92,000, which Hanselman allegedly gave to Shepardson at the end of their relationship in exchange for Shepardson's conveyance of his share of the properties back to him. As to Hanselman's other claims, alleging fraud, negligence and breach of contract, in connection with Shepardson's alleged failure to perform various domestic services, the court found that Hanselman filed to assert sufficient facts to override Shepardson's motion for summary judgment. E.G.A. Kansas Supreme Court Affirms Conviction for Murder of Gay Man In State v. Collier, 1996 WL 99818 (March 8), the Kansas Supreme Court affirmed the conviction of Jeffrey Collier for the first- degree murder and aggravated robbery of Michael Hendrix, a gay man. However, the court found that the state failed to comply with a statutory notice requirement concerning the sentence the prosecution was seeking, so it vacated the 40 hard years sentence for reconsideration at the trial level. Collier and his gay partner, Benny Watson, went to Oak Park in Wichita, a cruising area used by gay men, looking for somebody to rob. They found Hendrix. Hendrix took Collier home with him under the pretext of having sex, but Collier strangled Hendrix and stole a variety of items from his home. At trial, Watson, who has AIDS, testified that they were specifically looking for a gay man to rob, and that after the fact Collier had confessed to the robbery. However, as part of the defense it appears that Collier sought to depict the situation as an S & M scene that had accidentally gone bad. The prosecutor's theory of the case, propounded to the jury during closing arguments, was that Collier sought to rob a gay man picked up from a cruising place in the park because he expected such a robbery victim would not go to the police. On appeal, Collier raised a variety of objections to evidentiary rulings, all of which were rejected unanimously by the court. One objection was to testimony by a gay male acquaintance of the victim that Hendrix was not involved in S & M. The court observed that a prior witness, under questioning by Collier's attorney, had been asked whether Watson had told him that the victim was "into S & M," so Collier's attorney had raised the issue first. Collier also sought to make something out of Watson's testimony that he had AIDS, arguing that this would unfairly bias the jury into believing Watson's testimony against Collier's interest. The court found no reason to credit this argument, pointing out that the context in which it came up was Watson stating that he had trouble remembering things due to his AIDS. "The fact that Watson had AIDS does not in and of itself in any manner affect his credibility because it is not probative as to his honesty or likelihood of testifying accurately," wrote Justice Larson for the court. The court also rejected Collier's objections to various arguments made by the prosecutor in his closing statement to the jury, including the theory that Collier sought a gay victim who would not report the crime; the court found that such an inference was not "unreasonable," and that the prosecutor could present a theory in closing argument that provided a "plausible motive for the selection of a robbery victim." A.S.L. Lesbian-Baiting Actionable Under Title VII, Says District Court in Kansas The U.S. District Court in Kansas is currently hearing a suit in which the female plaintiff claims sexual harassment and retaliatory discharge under both Title VII and the tort of intentional infliction of emotional distress, and which revolves around plaintiff's supervisor's comments concerning her alleged lesbianism. The case's most recent memorandum and order, Miller v. Brungardt, 1996 WL 88747 (Feb. 9), decided the identity of the parties and claims. The analysis used by the court in reaching its decision is of interest because of the court's understanding that lesbian-baiting is a form of sexual harassment. Plaintiff Jane Miller, a school counselor, brought suit against the school district, her school's superintendent, and its vice principal after the latter allegedly made sexually inappropriate comments that included accusing her "of engaging in a lesbian relationship" with a student's mother and other "sexually explicit comments concerning lesbian behavior." When Miller reported the vice principal's actions to the school superintendent, she was allegedly reprimanded, and the superintendent failed to take remedial action. After first dismissing plaintiff's Title VII claims against the two individuals, stating it would be "duplicative" to sue both the school district and its employees in their official capacities (Title VII does not allow suits against individuals), District Judge Van Bebber turned to a central question, which was whether, when suing individual employees of a municipality (such as the school district) under the Kansas Tort Claims Act, the plaintiff must give them notice of suit prior to its commencement. Miller had failed to provide such notice. Relying on an earlier Kansas Court of Appeals case for its understanding of the notice requirements, the court found that notice must be provided to municipal employees only when "the employee's actions occurred within the scope of employment" since the municipal employer would then be held liable for the acts of the employee. Taking plaintiff's allegations as true for the purposes of this ruling, the court found that the vice-principal's lesbian-baiting, characterized by plaintiff Miller as "threatening, intimidating and abusive," fell outside the scope of the vice-principal's employment. "`[S]exual harassment . . . is not within the job description of any supervisor or any other worker in any reputable business.'" Thus, the notice requirement did not attach to Miller's claim of intentional infliction of emotional distress against the vice-principal. The court used the same analysis to find that the actions of the superintendent were within the scope of his employment, and that because Miller failed to supply him with notice, her suit against him should be dismissed. Miller now consists of a Title VII claim of sexual discrimination against the school district, and a claim of intentional infliction of emotional distress for sexual harassment against the vice principal. J.H. City Polygraph Tests Violate the Constitution Finding that the city of Houston had failed in "its responsibility as a government to conduct itself with minimal rationality and regularity," U.S. District Judge Hughes ruled in Woodland v. City of Houston, 1996 WL 103922 (S.D.Tex., Jan. 4), that the city violated the constitutional rights of applicants for positions in the police and fire departments by using polygraph tests that probed into the private lives of applicants. According to allegations by the three plaintiffs, all of whom were told that they had "failed" the test, questions were posed about sexual behavior with animals, affairs with married women, girlfriends, cohabitation, extramarital affairs, homosexual behavior, masturbation, sexual activity as a teenager, sexual positions, thefts, criminal behavior as a child, drug use, and intimate details of sexual relations with a spouse, and religious views. The court found that many of these questions were unnecessarily intrusive, and that apparently the polygraph examiners used by the city were not adequately trained to use a standard schedule of questions uniformly administered to applicants. "The City of Houston has an interest in hiring honest able persons for public safety jobs. As a means to that end, the city may use the polygraph, but the questions asked in a pre-employment polygraph test must reasonably examine the applicant's present qualifications to perform the job. The city, however, asked questions of applicants for the fire, police, and airport police departments that were insulting, intrusive, argumentative, embarrassing, and wholly unrelated to its legitimate interest. The city asked questions about consensual sex, marital harmony, sex with animals, lifetime recreational drug use, non-violent criminal acts as minors, misdemeanors as adults, religious preferences, political associations, and other subjects wholly unrelated to the applicants' ability to perform the job," found Judge Hughes. The court concluded that it was necessary to issue an injunction against continuation of such practices, even though the city's lawyers had represented to the court that they would not continue. The court also awarded damages to the three named plaintiffs in significant amounts, as well as more than $100,000 in attorney's fees and costs. A.S.L. Federal Court Refuses to Order NYC to Let Gay Irish March In the aftermath of last year's U.S. Supreme Court ruling that a private organization could not be compelled to allow a group whose views it disapproves to march in its parade, Hurley v. Irish- American Gay, Lesbian & Bisexual Group of Boston, 115 S.Ct. 2338 (1995), New York's Irish Lesbian and Gay Organization (ILGO) applied for a permit to hold its own parade on 5th Avenue on March 16, right before the "official" St. Patrick's Day Parade sponsored by the Ancient Order of Hibernians. In anticipation of the expected denial of the permit (which was, in fact, denied), ILGO sued Mayor Rudolph Giuliani, Police Commissioner William Bratton and the City of New York in federal district court to contest sec. 10-110 of the N.Y.C. Administrative Code, which governs issuance of parade permits, as being unconstitutional under both the federal and state constitutions, both on its face and as applied to ILGO. Preliminary and permanent injunctive and declaratory relief were sought. In ILGO v. Giuliani, 1996 WL 91633 (S.D.N.Y., March 4), District Judge John G. Koeltl dealt with a raft of preliminary motions. ILGO filed an Order to Show Cause on Feb. 27 seeking expedited discovery. At a hearing on that date, the City moved to have the whole matter transferred to Judge Keenan, who had decided the 1995 parade permit case, and sought to dismiss the complaint on res judicata or collateral estoppel grounds before proceeding with discovery. Judge Koeltl denied the motion to transfer because the prior litigation was closed and there would be no conservation of judicial resources in his view; neither would the convenience of parties or witnesses be served by a transfer. Judge Koeltl also denied the City's motion to dismiss. Since the parade was only two weeks away at that time, the court ruled that the hearing on the preliminary injunction would have to be held before then; deferring the preliminary injunction hearing until a motion to dismiss could be heard would interfere with the ability of both parties to address the issues of the preliminary injunction. ILGO's motion for expedited discovery was also denied. ILGO's discovery request was vast. It encompassed all documents relating to parade permit requests, whether granted or denied, since 1985. Memoranda and reports from administrative and law enforcement sources regarding assignment and deployment of police, traffic control, sanitation and other resources for each of the St. Patrick's Day parades since 1990 were sought. The City responded by filing a motion for protection and submitting more limited documentation relating to this year's parade. The court found that the document request was not tailored to the needs of the pending litigation or the time constraints presented, and that ILGO conceded that most of the information sought could have been obtained via FOIA requests that could have been filed at any time prior to institution of this action. Koeltl scheduled a further hearing for March 11. In the event, Koeltl was unpersuaded by ILGO's case, and ruled March 14 against ILGO's request for an order allowing it to hold its own parade on 5th Avenue. ILGO v. Giuliani, 1996 WL 115845. Although the suit was not dismissed in its entirety, the opinion makes clear Koeltl's strong disposition to rule against ILGO on the merits. A main point of contention was the standard ILGO would have to meet to obtain preliminary injunctive relief. Since this is a case where such preliminary relief would effectively give ILGO its ultimate relief of allowing to hold a parade on 5th Avenue prior to the "official" parade, Koeltl decided ILGO's burden was relatively high: to show a substantial likelihood of success on the merits. Finding that the City's only reason for denying the permit was due to the logistical problems of dealing with two parades on the same avenue on the same date, and that the City would have denied a second permit regardless who applied for it, Koeltl found that the City had not discriminated on the basis of ILGO's viewpoint. Furthermore, he pointed out that the Police Department had attempted to contact ILGO to discuss alternative times and places for an ILGO march, but that its calls were not returned by ILGO. Koeltl also criticized ILGO for waiting to file its lawsuit until such time that the whole proceeding would have to be rushed, noting that in light of its past experiences, ILGO should have sought its permit and brought its litigation much earlier. S.K. & A.S.L. Court Protects Nude Scenes on Stage Angels in America, a gay-themed winner of the Pulitzer Prize and the Tony Award for best play, has been presented by touring companies in several cities around the country without any special fuss, but its arrival in Charlotte, North Carolina, caused an uproar when local law enforcement officials expressed objections to scenes of full frontal male nudity on stage and threatened to arrest the actor portraying Prior Walter. The Performing Arts Center, landlord for the Charlotte Repertory Theatre, said it would not let the play go on unless the theater company restaged the offending scenes. Rather than bow to censorship, Charlotte Repertory went to court and obtained a temporary restraining order against the Performing Arts Center, the local police and other law enforcement officials from North Carolina Superior Court Judge Marvin Gray, signed just hours before the curtain was to go up on March 20. In his order, Judge Gray stated: "Plaintiffs have demonstrated that one or more of the Defendants or all of them acting together are engaged in the prior restraint of free speech in violation of the Constitution of the United States and the Constitution of North Carolina. The Play is an artistic presentation; its author has won a Pulitzer Prize for the Play. Nudity to the extent the same occurs in the Play appears to constitute artistic expression. Such conduct is not properly the subject of criminal prosecution under theories of obscenity and/or indecent exposure." We always suspected the Pulitzer Prize would come in handy for something! The controversy consumed thousands of words in numerous articles in the Charlotte Observer, which noted that ticket sales picked up tremendously as the controversy mounted. Judge Gray's TRO was good for ten days, and the theater company was set to seek more permanent injunctive relief to protect the rest of the play's run. Prior Walter stripped down for his physical exam on stage, and the sky did not fall on Charlotte. A.S.L. D.C. District Court Dismisses All Claims Brought by Pro Se Gay Inmate Claiming that he had suffered rape, assault, unnecessary transfer and segregation and dangerous work assignments as a result of his sexual orientation, William A. Risely sued the Director of the Federal Bureau of Prisons and other high bureau officials alleging violations of his First, Fourth, Fifth, Eighth and Thirteenth Amendment rights as well as violation of various civil rights statutes. Risely sought monetary relief from the defendants in their individual capacities and injunctive relief in their official capacities. Risely also claimed that Bureau officials retaliated against him by denying him access to the courts and fabricating his medical records to reflect a psychiatric illness. Judge Richey of the District of Columbia District Court dismissed all of Risely's claims. Risely v. Hawk, 1996 WL 86465 (D.D.C. Feb. 15, 1996). The court first dismissed the plaintiff's claims under 18 U.S.C. secs. 113, 211, 241 and 1583, ruling that these statutes do not create a private right of action for criminal offenses by government officials. The court also determined that the civil rights statutes, 42 U.S.C. secs. 1981, 1982, 1983, 1986, 1987, were all inapplicable since the plaintiff was not claiming racial discrimination, state action, or conspiracy to deny equal rights to a protected class. His claim under 42 U.S.C. sec. 1997 was ruled inapplicable because this statute only authorizes suits by the U.S. Attorney General against state, not federal, actors. The court dismissed Risely's federal tort claims because he had not alleged that he had been either subject to illegal search and seizure or to slavery. The court stated that his treatment at the hands of other inmates was encompassed by his Eighth Amendment claim. The court also dismissed Risely's claims for injunctive relief because he had filed two prior suits, with identical claims, in Arizona and in California. To Risely's argument that these suits were unjustly dismissed because defendants had obstructed his prosecution of his claims, the court responded that his recourse was to appeal the dismissals rather than to file new claims. The judge noted that Risely had not appealed in either case. The court ruled that the District of Columbia's long-arm statute did not extend to those defendants working in federal penitentiaries in other states when they had insufficient contacts with the forum. The remaining defendants were all high-level Bureau of Prisons officials employed in the District. However, the court ruled that respondeat superior is not a theory under which liability can be found in a Bivens suit. As to Risely's Eighth Amendment claim that Bureau of Prisons officials had acted with "deliberate indifference" to his welfare under the Farmer v. Brennan, 114 S.Ct. 1970 (1994), standard, where the Supreme Court held that a warden could be held individually liable for Eighth Amendment violations where he knew of and disregarded an excessive risk to the inmate, the district court ruled that case inapplicable. The court held that Risely's allegations fell short of stating such a claim and that it was unlikely that the warden's liability under Farmer would apply to higher officials. Furthermore, the court found that Risely had failed to show that any of the officials' actions had been objectively unreasonable or had violated the law, so that, even if he had stated a valid Eighth Amendment claim, they were entitled to qualified immunity. H.G.U. Marriage & Domestic Partnership Notes Legislatures in Idaho, Georgia and Colorado approved bills seeking to block recognition of same-sex marriages performed in other jurisdictions early in March. Republican Governor Phil Bratt of Idaho signed the bill without any particular suspense, but Governor Roy Romer of Colorado vetoed his state's bill on March 25, calling it "divisive" and "mean-spirited." Romer indicated that he would sign a bill stating that a marriage is defined as the union of a man and woman, but only if it also provided for the establishment of a state commission to study the need for legal recognition for same-sex couples. In public ruminations reported in the week leading up to the veto message, Romer indicated interest in providing some sort of state domestic partnership system for same- sex couples. At our deadline, Georgia's governor had not yet acted. Evan Wolfson, Director of The Marriage Project at Lambda Legal Defense Fund, reported March 25 that there are anti-same-sex marriage bills pending in 15 states, such bills have been defeated, withdrawn or killed in 11 states, and anti-same-sex marriage bills have become law in three states: Idaho, South Dakota, and Utah. Legislative leaders in Hawaii have indicated they do not intend to bring up for a vote measures passed in one chamber as a result of the current same-sex marriage litigation in that state. The Senate passed a domestic partnership bill, which will not see the light of day in the House, and the House passed a proposal to amend the state constitution to overrule the Baehr same-sex marriage decision, which Senate leaders say will not move out of committee during this session. Barring unforeseen maneuvering in either house prior to the May adjournment, it appears the next major event in Hawaii will be the commencement of the trial in Baehr v. Miike (as the case is now known) in August. The Boston City Council approved a home-rule petition for submission to the legislature, seeking authority to adopt a domestic partnership policy for city employees. The petition, introduced by Mayor Thomas M. Menino, does not specify the contours of the ultimate domestic partnership policy. Among the 9 council members who voted for the petition (with 4 opposed) there was a division of opinion as to whether benefits should be provided just for same-sex partners or for all unmarried partners of city employees regardless of sex. Mayor Menino said he only supported benefits for same-sex partners "because they can't get married. Everyone else can and should get married to get benefits." An amendment to the petition, supported by the Mayor and the petition's leading proponent, Councilmember Thomas M. Keane Jr., would have limited the policy to same-sex partners, but was defeated, with two supporters of the petition voting against it because they believed heterosexual couples should also be entitled to benefits. Boston Globe, March 14. The Albany Times Union reported that the Common Council of the city of Albany, N.Y., voted the previous day to establish a domestic partnership registry in the city. Mayor Jerry Jennings signed the legislation on March 22. It "creates a new license in City Hall, open to people who can prove they have been cohabitating for at least six months and swear an oath that they are committed to each other's financial and emotional support," according to the Times Union (March 19). Registration will cost $25, and will provide no tangible benefits. The Board of Education for the San Jose, California, Unified School District voted 3-2 on Feb. 1 to extend fringe benefits to domestic partners of its employees (including both same-sex and opposite sex couples). On March 7, spurred on by pastors at 22 area churches, more than a hundred vocal opponents of the Board's action attended the Board's next meeting. Although there were also some supporters of the policy present, most of the comment was reportedly strongly opposed. San Jose Mercury News, March 8. Implementing a recent Board of Supervisors measure, the City of San Francisco conducted a mass "wedding" ceremony for same-sex couples on March 25, with Mayor Willy Brown presiding. New York Times, March 26. Two amendments have been proposed to Michigan's Higher Education Appropriations Bill for the next school year, SB850, on the subject of domestic partnership. One would reduce funding to any public university that extends such benefits to unmarried partners of university employees by "an amount equal to the cost of extending" the benefits. The other amendment require that any university extending such benefits make a report on the expenses to the director of the department of management and budget for the state and the house and senate appropriations committees. Sometimes when you ask for equality, what you get is not quite what you wanted. Hertz Corporation, responding to complaints that it was charging an "additional driver fee" for same-sex couples but not for married couples (unlike other major car rental companies, who have dropped the fee), has instituted an additional driver fee for all couples, whether heterosexual or homosexual. Hertz acted after adverse comment about its discriminatory policy appeared in Out & About, a gay travel magazine. Now Out & About cautions its readers to add in the fee when comparing Hertz's rates to other auto rental companies. Washington Blade, March 15. A.S.L. Hearings Due on ENDA U.S. Representative Peter Torkildsen (R.-Mass.), chair of the Subcommittee on Government Operations of the House Small Business Committee, announced March 19 that his subcommittee will hold hearing on the Employment Nondiscrimination Act of 1995, H.R. 1363, S. 932, a bill that would amend federal civil rights laws by banning sexual orientation discrimination by employers with fifteen or more employees. Although Torkildsen predicted that the bill would not go to the House floor during this session of Congress, his announcement that hearings will be held in June represented a breakthrough of sorts, in light of the scant participation of Republicans as co-sponsors of the bill. (The total sponsorship from both houses of Congress shows 144 Democrats, 15 Republicans, and 2 Independents.) Torkildsen noted in his statement (at a briefing session for Human Rights Campaign and P-FLAG) that more Republicans sponsored the bill in this Republican-dominated Congress than in the prior Democratic-sponsored Congress. BNA Daily Labor Report No. 54, 3/20/96. A.S.L. Law & Society Notes Public acceptance for lesbians and gay men is growing, according to a USA TODAY/CNN/GALLUP telephone poll conducted March 15-17 and reported in USA TODAY on March 19. 44% of respondents found homosexuality "acceptable," compared to 38% in 1992 and 34% in 1982. However, support for same-sex marriage was meager: only 27% of respondents supported it, while 68% stated opposition with the rest stating no opinion. The numbers on same-sex marriage are strikingly similar to local polls conducted in Hawaii, the state where the most intense debate is now going on about same-sex marriage as both sides prepare for the August trial in Baehr v. Miike. Major metropolitan newspapers and media outlets nationwide gave extensive attention to the latest figures on anti-gay violence releases by the National Coalition of Anti-Violence Programs. While the number of reported incidents fell 8% from 1994 to 1995 (including a drop in reported murders from 29 to 25), overall the reported crimes tended to be more violent, with a 10% increase in assaults and rapes. New York continued to lead the nation with the greatest number of reported anti-gay crimes. Newsday, March 13. When prisoners in the Hennepin County jail reported to a supervisor that volunteer workers at the jail had made comments to prisoners that homosexuality was a sin, the County Attorney and Board of Commissioners adopted a policy prohibiting such statements by prison volunteers. Then prison chaplains complained that their freedom of speech was being restricted. The Minnesota Family Council, an anti-gay group, has filed a federal court suit alleging that the new policy violates the First Amendment rights of the volunteers. County Commissioner Jim Bourey released a statement: "We believe that encouraging everyone to be respectful in how we treat one another is not in conflict with our Constitution's guarantees of freedom of speech and religion. Specifically, our policy and practices does not [sic] promote or proscribe any particular set of beliefs or values, including religions or sexual orientation." St. Paul Pioneer Press, March 7. An Associated Press article featured in many newspapers in mid- March reported that a Brookline, Massachusetts, couple are suing the town of Brookline for $359,571 in damages (including a $300,000 emotional distress claim) on behalf of their teenage daughter, who they claim suffered emotional distress when her public school teacher came out as a lesbian in the classroom and the school refused to allow her to transfer to another class. Jeannine and Thomas Jenei allege that their daughter Johanna was subjected to ridicule for her Christian beliefs, and eventually had to transfer to a private Christian academy. A Pima County, Arizona, jury rejected a claim by a murder defendant that he had to kill the victim because of homosexual advances. The jury found Beau John Greene guilty of first-degree murder in the death of Roy Andrew Johnson, a University of Arizona music professor whose body was found early in March 1995 after he failed to return home after giving a concert in a Tucson church. Arizona Republic, March 16. Desperately seeking a way to keep an active ROTC unit on campus in the face of military discrimination, a campus task force at the Massachusetts Institute of Technology (MIT) recommended that ROTC stay but be required to allow gay students to enroll. Of course, under military regulations openly gay students who graduated from the ROTC program could not be commissioned officers in the military. The task force also proposed that MIT replace any ROTC scholarship that was lost by an MIT ROTC student by "coming out." A Defense Department spokesperson expressed doubt that the military could allow an ROTC program to operate on that basis. Boston Globe, March 20. The Albany County, New York, legislature voted 24-13 on March 11 to establish a Human Rights Commission with authority to hear complaints of discrimination on the basis of sexual orientation (and such other bases as race, religion, national origin, sex, age, disability, and marital status). The Albany Times Union reported on March 12 that the bill passed on a party line vote. The Roman Catholic Diocese of Albany supported the bill (!!) after it was amended to allow religious organizations to give hiring preference to members of their faith. Jack Daly, a first year law student at the University of North Carolina, is lead plaintiff in a suit filed in the U.S. District Court for the Western District of North Carolina challenging the constitutionality of minority scholarships. Among those targeted as violating the First Amendment and Equal Protection rights of students is the Alan Berman Scholarship, which grants eligibility preference to lesbian or gay students or advocates for lesbian and gay rights. The Scholarship is funded entirely by private contributions, but is administered by the UNC Law School. Daly claims that he is excluded from applying for the scholarship as a Fundamentalist heterosexual Christian who is opposed to lesbian and gay rights. The current holder of the scholarship, 3rd-year student Doug Ferguson, is considering intervening in the lawsuit to protect the rights of potential future recipients. Those interested in contacting Mr. Ferguson about the litigation can reach him at cdfergus@email.unc.edu, or 919-932-5817. Reacting to a survey showing the homophobia was a problem in the school system, the Montgomery County, Maryland, Board of Education unanimously voted to amend its human relations policy to prohibit discrimination based on sexual orientation and to add sexual orientation issues to those to be addressed in human relations curricula. The vote seemed easy, as the county has a non- discrimination policy and there are similar policies in neighboring school districts. But a vocal group of anti-gay parents immediately began agitating for repeal of the policy, raising alarms that the board may backslide. Washington Post, March 24. The City Council in Lansing, Michigan, voted to enact a human rights ordinance that forbids sexual orientation discrimination. The 5-3 vote followed weeks of emotional debate, according to a March 21 report in the Detroit Free Press. Neighboring East Lansing has had a similar ordinance for more than ten years. A group opposed to the ordinance has vowed to undertake a petition drive to seek repeal, either by the city council or ultimately through a ballot question. The Richmond Times-Dispatch reported March 3 that Sharon Bottoms has decided to appeal the latest decision denying her custody of her son Tyler. Conservative politicians are fond of saying that there is no need for "special laws" to protect gays from discrimination because they are already protected by existing laws. Now one such politician, New Hampshire Governor Steve Merrill, is being sued for breach of contract for making such a statement. Michael Snell and Marc Smith, a gay couple from Hollis, N.H., have been frustrated in trying to sell their house, claiming that real estate firms are refusing to take their listing and that one firm's laxness concerning security during an open house led to a jewel theft of $80,000. When they sought to file a complaint with the state's Real Estate Commission alleging sexual orientation discrimination by brokers, the Commission rejected the charges, opining that gays are not protected from discrimination. Snell and Smith filed suit in Rockingham County Superior Court, seeking an order against the Real Estate Commission and breach of contract damages against the governor. Boston Globe, March 14. Responding to the introduction of a shareholder resolution calling on the company to adopt a set of standards designed to prevent anti-gay discrimination, Johnson & Johnson voluntarily agreed to adopt a written corporate policy banning sexual orientation, in exchange for which the sponsors withdrew the resolution. The sponsors were willing to withdraw their resolution even though J&J's written policy does not address all the items in the resolution, as a showing of good faith. We previously reported that two out of three openly-gay members of Congress were planning not to run for re-election this year. Now it is reported that U.S. Rep. Steve Gunderson (R.-Wis.) may be reconsidering. If both Gunderson and Rep. Gerry Studds (D.-Mass.) retire as previously announced, Rep. Barney Frank (D.-Mass.) would be the only openly gay incumbent running for the House this fall. There are numerous openly gay candidates contending in Democratic and Republican primaries for the chance to contest House seats in the fall. The Advocate, April 2. A board meeting of Gay, Lesbian, and Bisexual Local Officials (GLBLO), an organization of openly lesbian and gay local officeholders, held in Washington, D.C., on March 11, approved a resolution to ask the U.S. Census Bureau to include questions on the 2000 census form to elicit information about gay households. The organization will draft proposed questions for submission to the Census Bureau by April 1, 1997, which is the deadline for proposing questions to be included. New York City Councilmember Tom Duane is president of GLBLO. Washington Blade, March 15. While the federal courts battle over the question whether same-sex workplace harassment is covered by Title VII of the Civil Rights Act of 1964, the federal government has decided to settle a lawsuit brought by a gay employee of the U.S. Department of Veterans Affairs, alleging creation of a hostile environment through homophobic comments and unwanted physical contacts from co-workers. Under the settlement in Villeneuve v. U.S. Department of Veterans Affairs, which was filed in U.S. District Court in Philadelphia, the plaintiff, no longer employed by the defendant, will receive a lump sum payment of $75,000 damages and the equivalent of workers compensation benefits dating back to November 1994 when the plaintiff stopped working due to the harassment. Mental and emotional problems stemmis The Guardian reported March 6 that the Netherlands "is on the verge of becoming the first country in Europe to allow homosexual marriages." While it is difficult based on press reports to know whether they refer to "marriage" or to the type of registered partnership that is sometimes called "gay marriage" in the Scandinavian countries, this report claims that most members of the governing parties in the Parliament were supporting a measure that "would not only give homosexual and lesbian partneely resembling the Scandinavian model. Queer News Aotearoa, a gay New Zealand news service, reported that three lesbian couples were filing papers in the Auckland High Court seeking marriage licenses, after having been turned down by registry offices in their home cities. The Marriage Act 1995 is gender neutral, and in 1993 New Zealand enacted a ban on sexual orientation discrimination, so the women argue that the Act should be construed to authorize same-sex marriage. The Constitutional Court lth, retirement and other government benefits regardless of their marital status. Washington Blade, March 22. An Associated Press story published by the Chicago Tribune on March 11 reported that the South African Parliament's defense committee has instructed the Army "to stop discriminating against people who are openly gay or lesbian in its recruitment drives," and that "in December, the first gay wedding was celebrated by two men in Johannesberg." The story gave no further explanation of the legal status of this wedding. A.S.L. Professional Notes San Francisco Mayor Willie Brown appointed five openly lesbian or gay people to commissionerships on Feb. 13, including lesbian attorney Martha Knutzen, who will serve on the city's Human Rights Commission. Sebastian Patti, an openly gay attorney, won the Democratic nomination as a candidate for Cook County, Illinois, Circuit Court in the recent Illinois primary; due to the demographics of the district, this is considered tantamount to election. Similarly likely to achieve an easy victory in the general election is openly-gay and HIV+ candidate Larry McKeon, who won nomination for a seat in the Illinois State House of Representatives. Results in the California judicial races, in which several openly gay candidates were participating, were not known at our deadline and will be reported in the May Law Notes. New York gay attorney and LeGaL member Mark Barnes has resigned as executive director of the AIDS Action Council in Washington and will return to full-time law practice in New York. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS 9th Circuit Upholds High-Range Sentence for HIV+ Defendant Kevin Pollard was sentenced to 78 months in jail pursuant to the federal Sentencing Guidelines following a guilty plea to bank robbery. The district court enhanced Pollard's sentence by three levels because he was carrying a dangerous weapon during the bank robbery. Under the Guidelines, Pollard could have been sentenced to anywhere from 63 to 78 months based on an offence level of 24. The district court found that Pollard posed a "very clear danger" to the community and sentenced him to the maximum of 78 months. In so doing, the court noted that Pollard had four convictions for lewd behavior and prostitution subsequent to testing HIV positive. Pollard appealed the application of the full 78 month sentence, arguing that his HIV status was inappropriately considered in determining his sentence. The 9th Circuit Court of Appeals affirmed. United States v. Pollard, 1996 WL 80181 (9th Cir. February 23, 1996). The Court of Appeals found that public safety is one of the factors the district court may consider when imposing sentence. Furthermore, the court found that "[p]urely discretionary decisions authorized by the Guidelines... are not reviewable on appeal." The Ninth Circuit concluded its opinion with the following, rather confusing, statement: "Because Pollard was aware that he was HIV positive, the district court's purely discretionary decision to sentence Pollard to the high end of the applicable guidelines range is not reviewable on appeal." The court implies that because Pollard is HIV positive and has previously been convicted of prostitution, he poses a risk to the community by possibly spreading his infection to other people. However, the court never actually makes this statement. The court instead states that Pollard's knowledge of his HIV status alone is enough to make him a "very clear danger" to the community. This reasoning defies logic and has the implication that HIV+ people are too dangerous to be free in the community. This is pretty scary stuff. T.V.L. 8th Circuit Upholds Dismissal of HIV-Transmission Case as Time- Barred The 8th Circuit Court of Appeals affirmed a decision by the U.S. District Court for the Southern District of Iowa to dismiss HIV- transfusion litigation that was filed by the plaintiff more than two years after he learned about his HIV infection. Estate of Doe v. American Association of Blood Banks, 1996 WL 106644 (March 13). Doe received a transfusion during open heart surgery in 1984. On May 4, 1990, he was notified that he had tested positive for HIV, and was later diagnosed with AIDS. Doe filed suit against the Blood Banks association and the Red Cross on May 12, 1992. Iowa has a two-year statute of limitations. The trial court dismissed the claim as time-barred. On appeal, Doe argued that the two years should run from the time he discovered that his injury was due to negligence by the Red Cross. Disagreeing, the court observed that Iowa's version of the discovery rule embraces "the concept of inquiry notice." That is, the time to file begins to run once a potential plaintiff "becomes aware of facts that would prompt a reasonably prudent person to begin seeking information [about] the problem and its cause." A.S.L. D.C. District Court Rules Adverse Inference Must Be Drawn From Government's Destruction of Donated Blood Sample Letha Rice was infected with HIV as a result of a blood transfusion during bypass surgery at Walter Reed Army Medical Center on March 1, 1990. The Army's Blood Center notified Walter Reed on July 20, 1990, that a previous donor had tested HIV+ and urged an investigation. On August 17, Walter Reed confirmed that Rice had received blood that had earlier been donated by the same person. Rice tested positive on February 19, 1991, and her attorney requested medical records from Walter Reed. In October and November 1991, the remainder of the blood donation from which Rice had been transfused "was exhausted by testing conducted by the Army, and is therefore unavailable to plaintiff." Rice, who subsequently filed suit against the government, moved to preclude the government from introducing any evidence, direct or circumstantial, as to the condition, testing, or test results of any of that exhausted donation, on the ground that by exhausting it the government had precluded her attorney from independently testing it. (The key issue, of course, is whether the HIV- contaminated blood contained sufficient antibodies so that it would have tested positive.) Ruling on the motion on Feb. 14, Judge Robinson agreed with the plaintiff in Rice v. United States, 1996 WL 99334 (D.D.C.), that at the time the Army doctors went ahead and exhausted the rest of the donation through experimental testing, they were on notice of a potential claim and thus could be charged with knowing that they were, in effect, destroying evidence, and that their contention to the contrary was "simply implausible." Although the government showed that its purpose in undertaking the testing was a "compelling public health interest in testing [the donation] to assess the accuracy of measures to detect the HIV virus in donors who were HIV-positive but had not yet built up sufficient antibodies to be reactive to the FDA-approved screening vehicles then available," it had made "no effort to explain why defendant's public health interest could not have been accomplished without exhaustion of the remainder of the sample." Consequently, Judge Robinson found that the evidence had been destroyed with "gross indifference or reckless disregard" for its relevance to the foreseeable litigation, and "an adverse inference with respect to the testing of [the donation] is compelled." The motion was granted. A.S.L. Alabama Appeals Court Voids Will of HIV+ Man The Alabama Court of Civil Appeals affirmed a jury verdict voiding the will of an HIV+ gay man devising property to an unrelated cohabitant on the grounds of undue influence. Jackson v. Smith, 1996 W.L. 100196 (Mar. 8). Jackson lived with Kenneth Smith for approximately six years prior to Smith's death. The opinion is not clear as to whether the two men were lovers. After a heart attack in 1992, Smith became increasingly ill. Smith's blood kin testified that he was physically weak and not of sound mind when he executed a will in 1993. The will, which Jackson drafted and witnessed, named Jackson as the estate's sole beneficiary. During the last year of his life, Kenneth Smith also executed documents transferring ownership of real property to Jackson, and naming Jackson as the beneficiary under his life insurance policies. When Jackson presented the will for probate, Smith's mother contested her son's capacity to make it. In the appellate opinion, Judge L. Charles Wright held that the record supported the jury finding of undue influence. The opinion may be read as protecting the decedent's estate from an opportunist, or alternatively, it may also be read as disrespectful of Kenneth Smith's primary relationship with Jackson, dismissive of Smith's intent to control his own property in the face of infirmity, scandalized by the intergenerational relationship between the two men, and as unduly favoring the testimony of the biological family and Kenneth Smith's preacher. D.W. Oregon Appeals Court Upholds Conviction For Attempted Murder by HIV Transmission InState of Oregon v. Hinkhouse, 1996 WL 99406 (Or.App., March 6), the defendant argued that his conviction on ten counts of attempted murder and assault based on his conduct of engaging in unprotected sex without revealing his HIV+ status must be set aside because the evidence is insufficient to establish that he intended to cause death or serious physical injury to the victims. After testing positive, Timothy Hinkhouse was advised about how HIV is transmitted by his probation officer, Bill Carroll, who instructed him to use condoms. On more than one occasion Carroll told Hinkhouse that if he passed the virus to another person "he would be killing someone" and that "that is murder". At one point after being taken into custody for a parole violation where he was overheard bragging about his sexual prowess he was asked as a condition of his release to sign a probation agreement not to engage in unsupervised contact with women without Carroll's permission. Throughout this time Hinkhouse involved himself in numerous sexual relationships refusing to wear condoms even when asked, and claiming that he was HIV negative when the matter came up. In one instance Hinkhouse had repeated unprotected intercourse with a 15-year-old girl. In another, after using condoms for three or four weeks, he penetrated the woman involved without a condom after promising to use one. The intercourse in this case got rougher and sometimes involved vaginal bleeding as well as attempt sided with the state's expert who believed that Hinkhouse's statements coupled with his repeated behavior of systematically recruiting and exploiting multiple partners demonstrated intentional, deliberate conduct. The Court of Appeals of Oregon agreeempted murder and clearly showed a conscious objective of causing serious physical injury to the other women he was involved with. D.P. California Appeals Court Vacates Damage Award to Estate of PWA A unanimous panel of the California Court of Appeal, First District, ruled March 25 in Sullivan v. Delta Air Lines, Inc., 1996 WL 130703, that a jury award of $275,000 for emotional distress in an employment discharge case must be vacated because the plaintiff died while an appeal of the verdict was recluded at retrial. A.S.L. Counsel Appointed in Civil Action brought by HIV+ Inmate In Hetzel v. Swartz, 1996 WL 101759 (M.D.Pa., March 4), the court considered a motion for appointment of counsel in a civil action brought by Roy Hetzel, a former inmate at Luzerne County Prison. Hetzel, while still incarcerated, had brought an action pro se against Community Counseling Services and their employee, Jim Swartz, who works as a counselor at the prison. Hetzel v. Swartz, 909 F.Supp. 261 (M.D.Pa. 1995). The complaint alleged failure to provide psychological or psychiatric care as required by the Eighth Amendment, failure to provide Hetzel's medical records to him pursuant to his express authorization via a release form, and violation of his right to freedom from invasion of privacy guaranteed by the Fourteenth Amendment. Although Hetzel revealed in an opposing brief that he had AIDS, this information was never made part of the original complaint. In the original action Community Counseritless. Regarding Hetzel's allegation that unauthorized medical information was disclosed to an unnamed doctor and other unnamed prison employees, the original court pointed out that Hetzel failed to provide information needed by the court to make this determination, such as the nature of the information communicated and whether the person the information was communicated to had a legitimate right to know about his medical condition. Regarding the allegation that he was denied counseling although he had a terminal illness, the court again stated that Hetzel had not provided enough information about the effects of his terminal illness on his diminishing mental capacities and physical health, and his need for such counseling, for the court to co153, 155-57 (3d Cir.1993), interpreting a holding by the Third Circuit that appointments of counsel for an indigent litigant should only be made "upon a showing of special circumstances indicating the likelihood of substantial prejudice to him resultin. Their theory is that the live polio virus vaccine uses viruses grown in the kidney cells of African green monkeys, and that either HIV-1, HIV-2 or SIV (a simian counterpart of HIV that does not cause illness in humans) may have contaminated the vaccine and been transmitted to Whitney. Whitney has tested positive only for HIV-1. Her discovery request, resisted by the defendants, is that samples retained by the defendants for the vaccine lot used for Whitney, be tested for HIV-2 and SIV as well as HIV-1, the Williams's contending that Whitney might have been initially infected with HIV-2 or SIV that then mutated in her body to HIV-1. Defendants contend this is scientifically impossible, and would only agree to test the samples for HIV-1. U.S.efendants' arguments. Williams v. American Cyanamid, 1996 WL 115934 (Feb. 15, to be published in Fed. Rules Dec.). A.S.L. Connecticut Appeals Court Rules Trial Court Must Explain Why It Dismissed Case Involving False-Positive HIV Test The Appellate Court of Connecticut unanimously ruled Feb. 27 that plaintiffs were entitled to an explanation from the Superior Court as to why it dismissed their action against one of the defendants in a claim for damages as a result of a false HIV diagnosis. Doe v. Bridgeport Hospital, 40 Conn. App. 429, 1996 WL 80069. Ruling on the motion for summary judgment by defendant Fred Braun, the trial court merely incorporated by reference the factual assertions and legal arguments of the defendant's motion papers. Plaintiffs moved for the trial court to articulate it reasoning, but the trial court denied the motion. The appellate court found that under Connecticut Practice Book sec. 4051, the losing party on a summary judgment is entitled to an explanation by the court of the factual findings and legal conclusions on which it based its decision. Otherwise, an appellate court would have to speculate at which facts and arguments in the defendant's papers were relied upon by the trial court. "Because an ads From Sexual Partners A PWA who pleaded guilty to an auto theft charge was ordered as a condition of probation to obtain written informed consent from anyone with whom he has sex. According to an article in the Houston Chronicle, March 9, Texas District Judge Louis Gohmert, in Tyler, Texas, sentenced Thomas Paul McDevitt to five years probation, condition on McDevitt refraining from having sex with any partner who does not sign the following statement: "Thomas Paul McDevitt has advised me that he-she has been diagnosed as positive for the HIV virus in his-her body and may be symptomatic for the disease of acquired immune deficiency syndrome." The article did not explain why the judge used the term "he-she" in the consent form he devised for McDevitt's use. A.S.L. Jury Awards Over $1 Million Damages to PWA for Abuse in Prison In a verdict announced March 1, a federal jury in Kentucky awarded $1,180,000 damages to a man for mistreatment he endured during an overnight stay in the Jefferson County Correctional Facility. Sosa v. Jefferson County, No. C-95-229 (W.D.Ky.). See 11 AIDS Policy & Law No. 5, p. 1 (March 22, 1996). The plaintiff was arrested for public drunkenness and taken to the county jail. He told the police officer that he had AIDS, which the officer apparently told the jail staff. Sosa claims he was ridiculed and taunted, kicked, placed in a cell without a toilet for three hours during which, suffering from diarrhea and severe cramps, he soiled himself and repeatedly cried out for help. The jury levied both compensatory and punitive damages against the county and the individual jail guards. A.S.L. AIDS Law & Society Notes The U.S. Senate, by unanimous voice vote, amended the pending 1996 budget resolution to include a provision repealing the requirement that all HIV+ military personnel be separated within 6 months, which had recently been enacted as part of the Defense appropriations bill. However, the discharge provision's key proponent, Rep. Robert Dornan (R.-Cal.) vowed to defeat any repeal effort in the House. Moreover, the bill to which the amendment was attached may face difficulties in the House, due to Senate action restoring billions of dollars for health and education measures opposed by the majority party in the House. The California Medical Association has abandoned its year-old policy of support for mandatory reporting of positive HIV test results. Adopting a new policy statement at its annual meeting in Anaheim, California, the Association acknowledged that mandatory reporting could undermine public health efforts by deterring patients from opting for voluntary testing. Twenty-five states now require confidential reporting of the names of HIV-positive individuals to public health authorities. California and New York, the states with the largest number of PWAs, do not mandate such reporting until an AIDS diagnosis is confirmed. Los Angeles Times, March 6. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS ANNOUNCEMENTS The 3rd Annual Conference on Domestic Partner Benefits will be held October 17-18 at the University of Illinois at Chicago. (Prior conferences were hosted by the City University of New York.) For full details on registration and schedule of events (and to submit proposals for inclusion on the program), write to Third Annual DPB Conference, University of Illinois at Chicago, OBLGC (M/C 369), 1007 W. Harrison, BSB 4078, Chicago, IL 60607-7140, or send an e- mail message requesting information to oglbc-2@uic.edu. LESBIAN & GAY & RELATED LEGAL ISSUES: Arkes, Hadley, Questions of Principle, Not Predictions: A Reply to Macedo, 84 Georgetown L.J. 321 (Dec. 1995) (see Macedo article, below). Calleros, Charles R., Paternalism, Counterspeech, and Campus Hate- Speech Codes: A Reply to Delgado and Yun, 27 Arizona St. L. J. 1249 (Winter 1995) (See Delgado & Yun, below). Colker, Ruth, Whores, Fags, Dumb-Ass Women, Surly Blacks, and Competent Heterosexual White Men: The Sexual and Racial Morality Underlying Anti-Discrimination Doctrine, 7 Yale J. L. & Feminism 195 (1995) (argument that concepts developed in sexual harassment law have been used to bias anti-discrimination law against racial and sexual minorities; chapter from forthcoming book, HYBRID: Bisexuals, Multiracials and Other Misfits Under American Law, NYU Press). Delgado, Richard, and Jean Stefancic, Apologize and Move On?: Finding a Remedy for Pornography, Insult, and Hate Speech, 67 U. Colo. L. Rev. 93 (1996). Delgado, Richard, and David Yun, "The Speech We Hate": First Amendment Totalism, the ACLU, and the Principle of Dialogic Politics, 27 Arizona St. L.J. 1281 (Winter 1995). Dripps, Donald A., Bowers v. Hardwick and the Law of Standing: Noncases Make Bad Law, 44 Emory L.J. 1417 (Fall 1995) (argues that there was no justiciable case before the Court in Hardwick, thus limiting its precedential significance - fascinating!!). Feliu, Alfred G., and Elizabeth A. Fealy, The Role of "Sex" in Same-Sex Harassment Claims, 21 Emp. Rel. L.J. No. 4, 39 (Spring 1996). George, Robert P., and Gerard V. Bradley, Marriage and the Liberal Imagination, 84 Georgetown L.J. 301 (Dec. 1995). Goodman, Emily Jane, Courts Redefine "Family" in the Context of Residential Tenants' Succession Rights, New York Law Journal, 3/11/96, p. S1. Grose, Carolyn, Same-Sex Sexual Harassment: Subverting the Heterosexist Paradigm of Title VII, 7 Yale J. L. & Feminism 375 (1995). Guzman, Kathleen, About Outing: Public Discourse, Private Lives, 73 Wash. U. L. Q. 1531 (Winter 1995). Horwitz, Andrew, Sexual Psychopath Legislation: Is There Anywhere to Go But Backwards?, 57 U. Pitt. L. Rev. 35 (Fall 1995). Langston, Lundy, Political and Social Construction of Families Through Pedagogy in Family Law Classrooms, 73 Denver U. L. Rev. 179 (1995) (shows how standard family law texts bias the study of family law toward traditional family models, and suggests alternative approaches). Levesque, Roger J.R., Regulating the Private Relations of Adults With Mental Disabilities: Old Laws, New Policies, Hollow Hopes, 14 Behavioral Sciences & the Law 83 (Winter 1996). Macedo, Stephen, Homosexuality and the Conservative Mind, 84 Georgetown L.J. 261 (Dec. 1995)(with responsive articles by George & Bradley, Arkes, see above, and a Reply to Critics by Macedo). Ronner, Amy D., Bottoms v. Bottoms: The Lesbian Mother and the Judicial Perpetuation of Damaging Stereotypes, 7 Yale J. L. & Feminism 341 (1995). Singh, Divya, Discrimination Against Lesbians in Family Law, 11 S. African J. Hum. Rts. 571 (1995). Wintemute, Robert, Discrimination Against Same-Sex Couples: Sections 15(1) and 1 of the Charter. Egan v. Canada, 74 Canadian Bar. Rev. 682 (Dec. 1995). Wolfson, Evan, Why We Should fight for the Freedom to Marry: The Challenges and Opportunities that Will Follow a Win in Hawaii, 1 J. Gay, Lesbian, & Bisexual Identity 79 (1996). Student Notes & Comments: Jackson, Jessica, Colorado's Lifestyle Discrimination Statute: A Vast and Muddled Expansion of Traditional Employment Law, 67 U. Colo. L. Rev. 143 (1996). Murphy, Nancy E., Queer Justice: Equal Protection for Victims of Same-Sex Domestic Violence, 30 Valparaiso U. L. Rev. 335 (Fall 1995). Burnett, William J., Wisconsin v. Mitchell: First Amendment Fast- Food Style, 4 Temple Pol. & Civ. Rts. L. Rev. 379 (Spring 1995). Plane, Daniel R., Don't Mess With "Don't Ask, Don't Tell", 79 Marquette L. Rev. 377 (Fall 1995). Rowland, Kristin R., Amorphous Employment Discrimination Protection for Transsexuals: Doe v. Boeing, 4 Temple Pol. & Civ. Rts. L. Rev. 361 (Spring 1995). Yount, Alan N., R.N., Don't Ask, Don't Tell: The Same Old Policy in a New Uniform?, 12 J. Contemp. Health L. & Pol. 215 (Fall 1995). Specially Noted: Soon to arrive in bookstores: The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment, by Prof. William Eskridge of Georgetown University Law Centre, published by The Free Press. This extended argument in favor of legal recognition of same-sex marriage stems from the author's representation of plaintiffs in litigation in the District of Columbia in an unsuccessful attempt to gain a court order to grant them a marriage license. This book will provide much useful information for those around the country who are engaged in the public policy debates stemming from the Hawaii lawsuit. A recent publication of special interest is Legal Inversions: Lesbian, Gay Men, and the Politics of Law, edited by Didi Herman and Carl Stychin (Temple University Press, 1995) [ISBN 1-56639-376 (cloth), ISBN 1-56639-377-9 (paper)]. This anthology combines new essays with reprints of some previously published law review articles, and brings together United States, Canadian, British, and Irish perspectives on the problems of lesbian/gay law and politics. This book would be a useful resource for courses in lesbian and gay studies and sexuality and the law, in addition to providing much thought-provoking reading outside the classroom context. * * * A forthcoming book to watch for is Sexual Orientation and Canadian Law: An Assessment of the Law Affecting Lesbian and Gay Persons, by John Yogis, Randall Duplak, and J. Royden Trainor (Toronto: Emond Montgomery Publications, 1996; ISBN 0-920722-76-8). The authors are gay lawyers based in Halifax. AIDS & RELATED LEGAL ISSUES: Bayer, Ronald, AIDS Prevent vs. Cultural Sensitivity, 6 Responsive Community No. 1, 20 (Winter 1995/96). Blanck, Peter David, Empirical Study of the Americans With Disabilities Act: Employment Issues from 1990 to 1994, 14 Behavioral Sciences & the Law 5 (Winter 1996). Burris, Scott, Dental Discrimination Against the HIV-Infected: Empirical Data, Law and Public Policy, 13 Yale J. Reg. 1 (Winter 1996). Burris, Scott, Human Immunodeficiency Virus-Infected Health Care Workers, 5 Arch. Fam. Med. 102 (Feb. 1996). Goldfein, Ronda B., and Catharine Hanssens, Protecting HIV-Positive Workers: Whose ADA Is It Anyway?, 32 Trial No. 2, 26 (Feb. 1996)(exclusions of HIV-related coverage in employment-related health plans). Loue, Sana, Peter Lurie & Linda S. Lloyd, Ethical Issues Raised by Needle Exchange Programs, 23 J. L. Med. & Ethics 382 (Winter 1995). McIntosh, Phillip L., When the Surgeon Has HIV: What to Tell Patients About the Risk of Exposure and the Risk of Transmission, 44 U. Kans. L. Rev. 315 (February 1996). Parmet, Wendy E., Panel Comment: Legislating Privacy: The HIV Experience, 23 J. L. Med. & Ethics 371 (Winter 1995). Phelan, Gary, Reasonable Accommodation: Linchpin of ADA Liability, 32 Trial No. 2, 40 (Feb. 1996). Specially Noted: In its April 8 issue, The Nation reports on the special problem of AIDS in India in an article titled "India's Shame: Sexual Slavery and Political Corruption are Leading to an AIDS Catastrophe," by Robert I. Friedman. Friedman documents how governmental neglect of the rapidly spreading HIV epidemic is leading to a major disaster. Editor's Note: All points of view expressed in Lesbian/Gay Law Notes are those of identified writers, and are not official positions of the Lesbian and Gay Law Association of Greater New York. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in Law Notes is welcome and will be published subject to editing. Please address correspondence to the Editor or send by e-mail. A.S.L.