LESBIAN/GAY LAW NOTES
ISSN 8755-9021     May 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; Julia Herd, Esq., Brooklyn; Todd V.
Lamb, Esq., New York; Robin Miller, Esq., Seattle; Dirk Williams, Esq., Boston;  E. Terry
Giuliano, Helen G. Ullrich, Students, New York Law School; Eva G. Anthony, David Pumo,
Ross D. Levi, Students, Brooklyn Law School.

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(C) 1996 by Lesbian & Gay Law Association of Greater New York  
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EN BANC FOURTH CIRCUIT APPROVES "DON'T ASK, DON'T TELL" MILITARY
POLICY    

In a 9-4 decision, the U.S. Court of Appeals for the 4th Circuit,
sitting en banc, has upheld the military's "Don't Ask, Don't Tell"
policy as a legitimate use of congressional power.  Deference to
legislative judgment was the selling point for Chief Judge J.
Harvie Wilkinson (a Reagan appointee), who wrote for the majority
in Thomasson v. Perry, 1996 WL 157451 (April 5).  Of the 8 other
judges who signed onto the majority opinion, all but one were
Republican appointees.

Thomasson, an exemplary officer, was dismissed from the Navy after
he revealed his homosexuality in a letter to four of his commanding
officers.  The "Don't Ask, Don't Tell" policy provides that this
type of statement "creates a rebuttable presumption that the
officer engages in homosexual acts or has a propensity or intent to
do so."  Finding the requirement of rebuttal degrading, Thomasson
refused to do so and was thus dismissed. Thomasson filed suit to
prevent his discharge and, after losing in the District Court,
appealed to the Circuit Court claiming the Government's policy
toward gays in the military violated Equal Protection, the First
Amendment, and the Due Process Clause.

Writing for the court, Judge Wilkinson stressed that the policy was
the result of strenuous debate by both houses of Congress and
warned that judicial judgment should only supplant legislative
judgment in rare cases, lest the democratic will of the people be
disenfranchised by an overreaching judiciary.  In addition,
Wilkinson pointed out that the authority to raise and regulate the
military is constitutionally allocated to the Legislative and
Executive branches.  Traditionally the Supreme Court has shown
great deference to congressional decisions regarding matters of
national security and military regulation.  Finally, the majority
cited authority for the proposition that service members are not
afforded full protection under the First Amendment.  Wilkinson
noted that First Amendment challenges to military regulations are
handled more deferentially than similar civilian laws.

The court concluded that based on the deference owed to the
democratic decisionmaking apparatus, the correct level of judicial
scrutiny to evaluate Thomasson's equal protection challenge is
rational basis, under which the government would simply have to
show that the policy is rationally related to a legitimate
governmental interest.  The court determined that banning
homosexual acts and creating a rebuttable presumption that declared
homosexuals have a propensity to engage in prohibited sexual
conduct is rationally related to serving the military interest in
preserving unit cohesion.

As for Thomasson's First Amendment challenge, the court held that
the policy is not directed at speech, but at the conduct that the
speech evidences.  The military can validly proscribe homosexual
activity, and a service member who "tells" creates a rebuttable
presumption that the service member has a propensity or intent to
engage in the prohibited activity.

Judge Luttig, in a concurring opinion joined by five other judges,
forcefully asserted that the policy, as enacted by Congress,
maintains the ban on military service by gay people and is not, as
it has been recharacterized by lawyers for the Government, a
conduct-based restriction.  This, ironically, is the same argument
made by Thomasson.  Judge Luttig, however, felt that it is fully
within the power of Congress to exclude homosexuals from military
service, regardless of their conduct.

After examining the records of the congressional hearings
concerning the new policy, Luttig determined that Congress enacted
the policy only after it was convinced that the ban on gays in the
military would be retained.  The new policy differed from the old
only in that a new recruit or service member would not be
questioned about his or her sexual orientation, unless there was
some manifestation of homosexuality (either through action or
statement), in which case discharge would be required unless the
service member could prove that he or she is not a homosexual.

Luttig pointed out that the Solicitor General, in an attempt to
avoid a constitutionality question, recharacterized the policy as
a conduct-based restriction.  When Congress enacted the policy
mandating dismissal for service members who demonstrate a
"propensity" to engage in homosexual acts, they intended
"propensity" in its common sense meaning of "natural inclination"
rather than "likelihood," as it was subsequently redefined by the
Administration and Government lawyers. So defined, the policy
targets known homosexuals, rather than homosexual acts.  This is
demonstrated by the fact that pursuant to the policy, a
heterosexual who engages in homosexual acts (apart from sodomy)
will not be dismissed if he demonstrates that he is not a
homosexual.  Luttig would  strike down the policy as implemented by
the administration as contrary to statutory mandate, but uphold the
statute as enacted by the Congress as rationally related to a
legitimate government interest.

In a dissenting opinion, Judge Hall chastised the majority for
giving legal force to private prejudices.  He argued that the
government's proffered interest in maintaining "unit
cohesion" is nothing more than a request to tolerate the
intolerances of other service members.  This, he maintained, is an
impermissible governmental purpose.  In addition, Judge Hall argued
that the policy is directed at suppressing speech since it targets
only admitted homosexuals.  Granting that the military may suppress
speech when it is likely to interfere with vital prerequisites to
military effectiveness, Hall pointed out that the "vital
prerequisite" involved is the accommodation of the prejudices of
non-gay service members.  Accommodating private prejudices, he
argued, can never be a legitimate legislative end. E.T.G. 

The 4th Circuit opinion is the first by a federal circuit court
directly confronting the constitutionality of the "don't ask, don't
tell" policy as enacted by Congress in 1993.  Challenges to the
policy are also pending in several other circuit courts.  If at
least one circuit agrees with Judge Hall's dissent, the Supreme
Court may finally have to confront the military exclusion of gays
for the first time in the not-too-distant future. A.S.L.

LESBIAN/GAY LEGAL NEWS 

District Court in California Rejects "Don't Ask, Don't Tell" Policy

In the most recent successful challenge to the military's anti-gay
policies, the U.S. District Court for the Northern District of
California recently ordered the U.S. National Guard and the
California Army National Guard to reinstate a gay officer who had
been discharged from both units under the military's "Don't Ask,
Don't Tell" policy, and held that there is no rational basis under
the United States Constitution for either "Don't Ask, Don't Tell"
or the former policy that mandated discharge of all known
homosexuals from the military. Holmes v. California Army National
Guard, 1996 WL 156527 (March 29).

Plaintiff Andrew Holmes was discharged from the U.S. National Guard
after he notified his state commanding officer in 1993 in writing
that he is gay.  In the following proceedings, he failed to rebut
successfully the military policy's presumption that his admission
of his status was equal to an admission that he had engaged or
would engage in homosexual acts, and he was thus discharged. 
Following that discharge, California discharged him from the state
guard as well.

Holmes filed suit in 1995 against both California and the federal
government.  He made seven claims against the state defendants and
six constitutional claims against both the state and federal
defendants.  District Judge Armstrong dismissed without prejudice
six of the state claims as being solely premised on violations of
the California constitution or state law and thus violating the
doctrine of sovereign immunity that bars federal courts from
deciding state law claims against a state or its officials.  The
remaining claim against California, that California violated
plaintiff's equal protection rights under the 14th Amendment, was
decided in the decision herein.  

Plaintiff's constitutional claims were based on violations of equal
protection, substantive due process, and privacy, as well as the
First Amendment rights to free speech and expression.  Of these
claims, the court fully addressed only those concerning equal
protection and speech.  After first noting that military decisions
are entitled to "substantial deference," but admonishing that
"[t]he military is not the final arbiter of the constitutionality
of its policies, and it must operate within the parameters
established by statute and the Constitution," the court found that
plaintiff's claims of equal protection violations based on
disparate treatment by the military of homosexual and heterosexual
service members are valid in three different ways.  First, it found
that the military policy impermissibly discriminates against
homosexual service members on the basis of sexual orientation as
opposed to conduct.  Although the 9th Circuit has held it is
constitutionally permissible to exclude service members based on
conduct in Meinhold v. U.S. Dept. of Defense, 34 F.3d 1469 (9th
Cir. 1994), the court noted that Meinhold also stands for the
proposition that a discharge based on status raises an equal
protection issue.  Although the federal defendants attempted to
argue that "Don't Ask, Don't Tell" is based on conduct, this court
disagreed, cogently stating that the military's policy is designed
and permits the military to exclude homosexuals based solely on
their status or orientation.  The court clearly delineated the
contradictions between the stated goals of the policy and its
actuality, which is that "orientation," "status," and "propensity"
are treated as being the same things, with the former being used to
define the latter.  The practical result is that the statement "I
am gay" becomes the equivalent of "I am having or will have
homosexual sex while in the military."  

The court further held that the policy's built-in opportunity to
rebut the presumption of conduct is flawed constitutionally because
conduct cannot be presumed to follow from status, and because the
presumption is only applied to self-identified homosexuals but not
self-identified heterosexuals who engage in homosexual conduct. 
The court explained the 9th Circuit's question, as elucidated in
Meinhold, of the constitutionality of assuming that homosexuals
will engage in proscribed conduct but not assuming that
heterosexuals will do so.  It distinguished Meinhold from Steffan
v. Perry, 41 F.3d 677 (D.C. Cir. 1994), where the D.C. Circuit
unquestioningly held that homosexual status will lead to homosexual
conduct because of the human sexual drive.  In Holmes, the court
disagrees with the Steffan assumption, stating that such an
assumption discriminates on the basis of status and violates equal
protection.

Second, the court found that the military policy does not
rationally further any legitimate governmental interest.  The
supposed governmental goals are (1) the accommodation of the
personal privacy interests of heterosexual service members, (2) the
prevention of sexual tension, and (3) the advancement of unit
cohesion.  In each case, the court noted that since lesbians and
gay men have already long served in the military, the goals lose
their legitimacy.  The policy's actual results are that some
heterosexual service members will fear that anyone and everyone
might be homosexual, which leads to the undesired result of an
increase in tension and suspicion.  Furthermore, attempts to
advance unit cohesion, if done by promoting anti-homosexual
feelings, will leave out not only homosexuals, but those who do not
agree with anti-homosexual biases.  The court compared the "unit
cohesion" rationale to the similar, now discredited argument used
by the military to justify the exclusion of African-Americans from
military service.  "The inherent incongruity between what the
[Don't Ask, Don't Tell] policy says and what it does in practice is
clear evidence that the policy as a whole lacks any semblance of
rationality." 

Third, the court, citing City of Cleburne v. Cleburne Living
Center, 473 U.S. 432 (1985), found that the military policies are
irrational as a matter of law because they are founded on and give
effect to the anti-gay prejudices of others.  It rejected the
notion that the bigotry of some service members could provide a
constitutionally sufficient basis to banish an entire class of
persons from the military.  "That some service members may dislike
homosexuals, find their lifestyle immoral, or are otherwise uneasy
in their company is not a constitutionally legitimate basis on
which to ostracize an entire class of Americans from serving in
this country's armed forces."  

The court also found in favor of plaintiff Holmes's allegations
that the defendants violated his rights to free speech and free
expression.  Again, while it noted that courts must give far more
deference to military regulations challenged on First Amendment
grounds than other laws and regulations, Judge Armstrong's ensuing
discussion found that the military's policy impermissibly targets
speech.  The court acknowledged that a statement concerning one's
sexual orientation is indeed evidence that one is a gay man or a
lesbian, but that is all it is.  It noted that the military's
stated policy is that a member's sexual orientation is not a bar to
military service.  Thus, "[a]n acknowledgement of sexual
orientation is nothing more than a verbalization of what the
military has expressly stated is permissible."  Yet "Don't Ask,
Don't Tell" impermissibly concludes that disclosing one's
orientation is tantamount to an admission of conduct.
Plaintiff's other claims were dismissed.  The court found that the
alleged violation of his substantive due process rights -- that he
was discharged based on his status as a gay man rather than on the
basis of his conduct -- was duplicative of and more specifically
asserted in his equal protection and First Amendment claims.  As
for the claims of violations of his rights to privacy and intimate
association, as well as a claim that the military policies are
vague and overbroad, the court dismissed them because plaintiff
offered no "meaningful response in opposition to" the motion to
dismiss.

The court ended by ordering that Holmes be reinstated and that the
defendants be permanently enjoined from further proceedings against
him based under either the "Don't Ask, Don't Tell" policy or the
earlier policy that excluded all known homosexuals from service.
J.H.

California Supreme Court Bars Religious Exemption for
Discrimination Against Unmarried Couples

In a sharply divided opinion, the California Supreme Court held
that the state's Fair Employment and Housing Act does not
substantially burden the religious beliefs of a landlord who
sincerely believes that it is sinful for her to rent to unmarried
couples.  Smith v. Fair Employment and Housing Commission, 1996 WL
163908 (April 9).

Evelyn Smith owns four rental units that she operates solely for
business purposes. She resides elsewhere.  Smith, a Presbyterian,
believes that unmarried sex is sinful and that if she rents to
unmarried couples, God will punish her.  Smith rents her apartments
without regard to tenants' race, national origin, religion, sex or
physical handicap.  She informs all prospective tenants that she
prefers not to rent to unmarried couples.  In 1987, Gail Randall
and Kenneth Phillips responded to Smith's ad for an available
apartment.  During the course of meeting Smith, seeing the
apartment and eventually signing a lease, they told Smith that they
were married.  She informed them of her preference.  After signing
the lease, Phillips called Smith and told her they were not
married.  Smith told him that she could not rent to an unmarried
couple because that would violate her religious beliefs and
returned their deposit.  Randall and Phillips filed complaints with
the Fair Employment and Housing Commission.

California's Fair Employment and Housing Act (FEHA) bars
discrimination in housing on the basis of marital status.
California courts have consistently construed that provision, as
well as a similarly-worded provision in the earlier Rumford Fair
Housing Act of 1963, to protect unmarried cohabitants.  Smith's
defense included her claim that the state law did not require her
to rent to unmarried couples and that to require her to do so would
violate her right to free exercise of religion under both the
federal and state constitutions.  An administrative law judge
rejected her arguments and issued a proposed decision in favor of
the complainants.  The full commission then heard the case and
found for the complainants solely on the basis of the FEHA after
finding that it had no powers of constitutional interpretation. 
The commission ordered Smith to pay Randall and Phillips $454 in
compensatory damages and $500 for emotional distress.

The California Court of Appeal reversed, holding that the state
could not require Smith to rent to unmarried cohabitants without
violating her free exercise right under both the federal and state
constitutions.  The Court of Appeal also held that Smith did not
violate prospective tenants' privacy right by inquiring about their
marital status.

Upon review, a divided California Supreme Court reversed the Court
of Appeal.  Writing for a plurality of three justices, Justice
Kathryn Werdegar first discussed whether the FEHA prohibits
discrimination against unmarried couples and concluded from both
legislative history and case law that it did. Justice Werdegar next
analyzed whether federal or state law required California to exempt
Smith from the FEHA to avoid burdening her free exercise right. 
Relying upon Employment Division v. Smith, 494 U.S. 872 (1990)(free
exercise clause does not relieve a person of the obligation to
comply with a "valid and neutral law of general applicability" even
though compliance would violate her sincerely-held religious
beliefs), Werdegar determined that Smith's free exercise claim was
not protected by the First Amendment.  

Werdegar then turned to the Religious Freedom Restoration Act, 42
U.S.C. sec. 2000bb et seq. (RFRA), which purported to overrule
Smith by requiring that the government may only substantially
burden a person's free exercise rights if it demonstrates that
there is a compelling government interest that warrants the burden
and that the least restrictive means of furthering that interest
are used.  Asserting that there was no serious question about
whether Smith's beliefs were religious and sincerely held, Werdegar
discussed whether the threshold requirement of substantial burden
had been met.  

Using the pre-Smith case-by-case approach, she distinguished this
case from both Sherbert v. Verner, 374 U.S. 398 (1963) and
Wisconsin v. Yoder, 406 U.S. 205 (1972) because the law did not
condition an important government benefit upon conduct proscribed
by religious belief (Sherbert) nor did it impact an entire way of
life (Yoder).  Instead, Justice Werdegar relied on Braunfield v.
Brown, 366 U.S. 599 (1961), in which the Supreme Court held that
Sunday closing laws did not impermissibly burden the religious
beliefs of Orthodox Jewish shopkeepers, to determine that the
threshold showing of a substantial burden had not been met in this
case.  The judge discussed Smith's alternatives, reasoning that she
could avoid government-sponsored coercion by investing her capital
in other forms of income-producing property.  The judge did not
find the transaction costs that Smith might incur burdensome,
stating, "An economic cost, however, does not equate to a
substantial burden for purposes of the free exercise clause."  She
also considered the impact of an accommodation for Smith on the
rights of third parties, a factor that she said was not present in
other religious accommodation cases and which she found to be
particularly important. "The parties have not brought to our
attention a single case in which the Supreme Court exempted a
religious objector from the operation of a general law when the
Court also recognized that the exemption would detrimentally affect
the rights of third parties."  Therefore, because she could find no
substantial burden on Smith's religious beliefs, Justice Werdegar
saw no need to reach the compelling interest test of the RFRA. 
Additionally, she quickly disposed of the free expression clause of
the California Constitution, art. I, sec. 4, as not having meaning
independent of the federal Constitution.  Justices George and
Arabian concurred in the lead opinion.

Justice Mosk completed the plurality by concurring in the opinion
and disposition but on different grounds.  He asserted, based on
Employment Division, that the RFRA violates the First Amendment by
requiring the judiciary to exceed its powers by impermissibly
inquiring into the nature of religious belief and conduct.

In strongly-worded dissents, both Justice Kennard and Justice
Baxter, joined by Chief Justice Lucas, argued that the court should
have found a substantial burden on Smith's religious freedom.  They
pointed out that Smith, a widow, is dependent on the income from
her rental business and would suffer serious economic harm if
forced to sell her business.  Furthermore, they argued that she is
more heavily burdened under the FEHA than defendants in other cases
in that she is subject to either loss of her investment or
increasingly severe fines and penalties unless she is willing to
forego her religious beliefs.  Both argue that the RFRA was passed
specifically to protect people like Mrs. Smith.  Furthermore,
Justice Kennard argued, the commission could not have satisfied its
burden of demonstrating a compelling government interest, since
there is no evidence of widespread housing discrimination against
unmarried cohabitants and discrimination on the basis of marital
status has never been subject to the strict judicial scrutiny
applied to racial discrimination.  Not going quite that far,
Justice Baxter would have remanded for the commission to undertake
a compelling interest analysis.

Lambda Legal Defense Fund cooperating attorney Clyde Wadsworth
contributed an amicus brief to this case, in which the
complainants, an unmarried heterosexual couple, were represented by
attorney Tom Coleman of Los Angeles.  The decision has been hailed
as providing strong support to the argument that religious belief
should not be used to justify housing discrimination against
lesbian and gay cohabitants.  Smith's attorney, Jordan Lorence,
stated that he plans an appeal to the U.S. Supreme Court.  H.G.U.

Ohio Appeals Court Upholds Sex Discrimination Claim by Lesbian
Supervisor Discharged for "Fraternization" With Employee

In Russell v. United Parcel Service, 1996 WL 145483 (March 28), the
Ohio Court of Appeals held that summary judgment was improperly
granted in favor of the defendant employer, in an action by a
female supervisor who, after being terminated for violating the
employer's no-fraternization policy by establishing a romantic
relationship, and a household, with a female hourly employee,
asserted a claim for sex discrimination under Ohio civil rights
law. (A sexual orientation discrimination claim was abandoned.)

Under the no-fraternization policy, relationships between a
supervisor and an hourly employer were "not permissible."  The
supervisor, Andrea Russell, acknowledged that her relationship with
Tani Mann violated the policy.  The relationship was reported to
management by a coworker who observed Russell and Mann engage in a
"public display of affection" at a Travis Tritt concert.  The
employer's human resources manager later met with Russell and gave
her the choice of resigning or being terminated.  When Russell
refused to resign, she was fired.  During this period of time, Mann
apparently resigned.

Applying the three-stage McDonnell Douglas formulation developed by
the U.S. Supreme Court for Title VII litigation in an opinion by
Presiding Judge Petree, the appellate court found that Russell
stated a prima facie case of sex  discrimination, in claiming that
male supervisors had been given greater leeway in handling
fraternization situations.  Although the burden of persuasion then
shifted to the employer, the court found Russell's acknowledged
violation of the no-fraternization policy to be a legitimate,
nondiscriminatory reason for Russell's termination.

With the burden having returned to Russell for the ultimate
showing, the court held that a genuine issue of fact existed as to
whether male and female supervisory employees had been treated
differently with respect to implementation of the no-fraternization
rule.  The court relied heavily on testimony by the employer's
human resources manager that, when male supervisors had violated
the policy in the past, the violation had been resolved by the
resignation of the hourly employee with whom the supervisor was
involved.  The HR manager also explained that, while on occasion a
male supervisor had been terminated, that had occurred only after
the hourly employee had refused to resign.  Judge Petree observed
that there had been several instances of male supervisors marrying
hourly employees, and, despite the readily inferable prior
fraternization, no disciplinary action had been taken.

The court stressed that the employer had not given Russell the
option of altering her living arrangement or terminating her
relationship.  And, importantly, Russell appeared to have been the
first supervisor to be fired after her partner had already
voluntarily resigned.  R.M.

Three More Federal District Judges Hold Same-Sex Harassment
Actionable Under Title VII

Adding to the growing body of case law on this issue, two more
federal districts have stated that same-sex harassment may be
actionable under Title VII.  Tanner v. Prima Donna Resorts, Inc.,
1996 WL 143469 (D.Nev. Jan. 23) (denying defense motion to
dismiss); Rushing v. United Airlines, 1996 WL 146441 (N.D. Ill.
March 27) (granting defense motion for summary judgment and
dismissing the case on other grounds); Tietgen v. Brown's
Westminster Motors, Inc., 1996 WL 189287 (E.D.Va. April 18)
(granting in part and denying in part defense motion for
dismissal).

In the first case, plaintiff Michael Tanner sued his former
employer, Prima Donna Resorts, and his former supervisor, Doug
McMaster, alleging quid pro quo and hostile environment sexual
harassment, as well as retaliatory discharge and various common-law
claims.  Defendants moved to dismiss, citing Goluszek v. Smith, 697
F. Supp. 1452 (N.D.Ill. 1988), for the proposition that Title VII
requires an anti-male or anti-female atmosphere in order to
establish hostile environment sex discrimination.  

Judge Hagen rejected this argument, calling it "an unwarranted
extension of the elements of proof set forth by the Supreme Court
in [Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (recognizing
a cause of action under Title VII for sexual harassment)]."  Hagen
continued, "Title VII creates an individual claim which is ripe
before the work environment has been poisoned for all workers of
one sex or the other."  The defense argued that recognizing
Tanner's claim would require the court to recognize sexual
orientation as a protected classification under Title VII; Hagen
responded that the sexual orientations of the harasser and the
victim are irrelevant, concluding that <!69>[t]he focus should be
on the harassing conduct itself, and whether the harassment is
`because of sex.'"

In the second case, Plaintiff Leon Rushing sued United Airlines and
his supervisor, Guy Montes, alleging sexual harassment in violation
of Title VII and common law.  United moved for summary judgment. 
Addressing briefly the issue of whether same-sex harassment is
actionable under Title VII, Judge Shadur ruled that it is, citing
Wright v. Methodist Youth Services, 511 F.Supp. 307 (N.D. Ill.
1981), and echoing his own ruling in Kaplan v. Dacomed Corp., 1996
WL 89148 (N.D.Ill. Feb. 27) (see 1996 LGLN 48).  

However, citing Williams v. Banning, 72 F.3d 553 (7th Cir. 1995),
Shadur dismissed the Title VII claim against Montes because
supervisors do not fall within Title VII's definition of an
employer.  Further, Shadur observed that employer liability for a
hostile work environment depends on the negligence principles of 
respondeat superior; because Montes had never previously been
accused of sexual harassment, United had no reason to suspect him,
and because United transferred Montes promptly upon learning of the
situation, thus effectively responding to the problem, United could
not be held liable.  Regarding the quid pro quo claim, Shadur ruled
that Montes' supervisory authority was so limited, and Rushing's
claims of retaliation so contradicted by the evidence (including
Rushing's own statements), that United was entitled to summary
judgment.  

Shadur dismissed the common law claims against United with
prejudice, because they were pre-empted by the Illinois Human
Rights Act, and dismissed Rushing's emotional distress claim
against Montes without prejudice, stating that the claim involved
issues best addressed by an Illinois court.  

In the third case, Plaintiff Andre Tietgen sued two commonly-owned
auto dealerships, Brown's Mitsubishi and Brown's Pontiac, claiming
that his direct supervisor while he worked as a salesman at
Mitsubishi had solicited him for sex and, when rebuffed, thereafter
subjected him to severe harassing conduct leading Tietgen to
request a transfer to the employer's other agency, and that after
the transfer he was discharged due to his complaints relating back
to the harassment.  Tietgen sued on two theories: sexual harassment
and retaliation.  The employer sought dismissal on several grounds. 
District Judge Ellis agreed that the retaliation count of the claim
should be dismissed because it was first asserted in the court
complaint and not previously presented to the EEOC as part of the
charge filed with that agency.

However, Ellis rejected the employer's argument that the sexual
harassment claim was not valid under Title VII.  Although two
recent 4th Circuit opinions had rejected same-sex harassment
claims, Ellis found them to be conceptually distinguishable.  After
discussing two typical sexual harassment scenarios involving
opposite-sex supervisor and employee, Ellis explained: "The common
element in both these circumstances that makes them actionable
under Title VII is one of causation: the harassment allegedly
occurred because of the victim's gender.  And this common element
demonstrates that changing the gender of the harasser in either
circumstance does not necessarily remove the acts from the reach of
Title VII.  If a male employer touches a male employee in a sexual
manner, or invites the male employee to engage in sexual conduct,
the employer likely does so because the employee is male.  In other
words, the male employer in this circumstance is probably
homosexual or bisexual. And, although it is less self-evident, one
can imagine situations where a male supervisor might subject his
male employees to vitriolic treatment because he prefers working
with females, or, in other words, because of the male employees'
sex.  The point bears repeating:  the key is the cause of the
harassment, not the gender of the harasser."

While noting that proving causation to be gender-related in a same-
sex harassment case might be more difficult than in the more
frequently scene opposite-sex cases, nonetheless Ellis contended
that the problem was obviated in a case such as this one because of
the plaintiff's allegation that the supervisor's harassment stemmed
from a direct sexual solicitation.

Of the various possible permutations and combinations of workplace
relationships that may give rise to a same-sex harassment
complaint, the one where courts are most nearly unanimous in
recognizing a valid claim involves a supervisor who is perceived as
gay or bisexual exerting pressure for sex on an unwilling
subordinate of the same sex.  This decision just follows true to
form.  

On the other hand, a District Judge in San Francisco rejected an
attempt by an unhappy employee to use a supervisor's sexual
orientation as the basis for a Title VII claim in Farr v.
California Department of Rehabilitation, 1996 WL 182204 (N.D.Cal.
April 8).  Brian Farr, hired as a counselor trainee by the
Department, received his first performance evaluation from
supervisor Ms. Jo Mochulski, who noted various deficiencies. 
Subsequently, a new supervisor, Bud Veliquette, was assigned, and
shortly thereafter Veliquette tried to interest Farr in joining a
gay hiking club.  Farr indicated no interest.  Subsequently
Veliquette's performance reviews of Farr included various negative
comments, similar to those from his earlier evaluations and also
similar to comments made by other supervisors and a client agency. 
Farr's promotion from trainee to full counselor was delayed several
months from the norm due to these problems.  Farr subsequently sued
under Title VII, claiming hostile environment and quid pro quo
harassment.

Dismissing Farr's claims, Judge Illston found that the factual
allegations did not support either theory.  There was no indication
that Farr's rejection of Veliquette's suggestion that he join the
gay hiking club bore on relationship to the negative evaluation
comments, and Illston found nothing in the facts alleged by Farr
sufficient for a hostile environment claim.  (Implicit in the
opinion is the understanding that had the factual allegations been
different, a same-sex harassment claim might have been actionable.) 
O.R.D. (cases 1 & 2) & A.S.L. (cases 3 & 4).

Federal Magistrate Refuses to Dismiss Same-Sex Harassment Charge in
Minnesota

U.S. Magistrate Jonathan Lebedoff refused to dismiss a same-sex
sexual harassment charge against an auto dealership in Minnesota,
openly disagreeing with decisions from other federal districts and
circuits that reject such charges.  Waag v. Thomas Pontiac, 1996 WL
179860 (D.Minn. April 12) (not officially reported).  Although he
did dismiss assault and battery claims, and found that the alleged
harasser could not be held personally liable under Title VII,
Lebedeff held that the plaintiff was entitled to a trial on the
main sexual harassment charge.

Plaintiff Roal Waag began working as a used car salesman for the
defendant in December 1993.  The first six months of his employment
were uneventful, but after June 1, 1994, when Tom Bistodeau became
the new General Sales Manager, things quickly went downhill and
Waag resigned on August 15.  In his complaint, Waag alleges that he
was actually constructively discharged due to sexual harassment by
Bistodeau.  Waag's complaint details about a dozen incidents where
Bistodeau touched him in sexually suggestive or aggressive ways, or
made sexually provocative comments.  Waag also alleged that other
employees indicated to him that Bistodeau was gay.  Waag claimed
that he indicated many times to Bistodeau that the touching and
other come-ons were unwelcome, but that Bistodeau insisted as
General Manager he could do whatever he wanted.  Waag also claimed
to have spoken to a Vice President of the employer, who laughed the
whole thing off and took no action.  After Waag resigned, the
employer learned that he had omitted information from his
employment application about a prior conviction for theft from a
previous employer, and that it would not have hired him based if
this had been known.  Bistodeau also denied having engaged in any
sexually provocative conduct, and the company indicated its view
that Waag's comments to the vice president were based on a
homophobia.

Plaintiff allegations along these lines fall into the one category
where courts are most likely to find same-sex harassment actionable
under Title VII of the Civil Rights Act, i.e., claims that a
homosexual supervisor is harassing an employee of the same sex.  
Lebedeff follows this majority trend, pointing to the growing body
of caselaw recognizing such claims as well as the broader language
in Supreme Court harassment cases indicating that men are protected
from harassment as well as women, and that the key issue is whether
the plaintiff was singled out for harassment due to his sex.  On
the motion to dismiss, plaintiff's allegations have to be taken as
true, so the defendants' factual denials are irrelevant.

"In the context of Title VII sexual harassment claims," wrote
Lebedeff, "we cannot identify any persuasive reason to distinguish
`unwelcome' heterosexual advances from `unwelcome' homosexual
advances.  In both instances the victims would not be subject to
the harassment `but for' their gender."  Lebedeff also so no sound
reason to limit such claims to quid pro quo cases, as opposed to
extending them to hostile environment cases, although in this case
Waag had alleged facts sufficient for both types of cases. 
Lebedeff also dismissed the defendants' argument that Waag's claim
should fail because he advanced no admissible evidence that
Bistodeau is homosexual; hearsay evidence was sufficient, in
Lebedeff's view, to survive a motion to dismiss.  * * *  The 6th
Circuit Court of Appeals, with an apparent sigh of relief, decided
in Fleenor v. Hewitt Soap Company, 1996 WL 162917 (April 9), that
it would not have to take on the issue of hostile environment same-
sex harassment on the merits, finding that the plaintiff had failed
to allege facts sufficient to make his employer responsible for
alleged harassment, even if it were actionable under Title VII. 
Fleenor alleged harassment by a co-worker and a supervisor.  The
court found that as to the co-worker, Fleenor's complaints to
management resulted in discipline of the co-worker and cessation of
the problem, thus relieving the employer of any potential
liability.  The supervisor in question was not Fleenor's
supervisor, and Fleenor's allegations with respect to him were
found to be unduly vague to be the basis of an actionable claim.  
A.S.L.

Federal Court Finds Sexual Orientation Discrimination Claims by
Union-Represented Employee Preempted 

In a belatedly discovered opinion that was issued September 28,
1995, but just recently appeared on Westlaw, U.S. District Judge
Eagan (D.Conn.) ruled in Wilhelm v. Sunrise Northeast, Inc., 151
Lab. Rel. Ref. Man. (BNA) 2655, 1995 WL 852544, that a claim of
sexual orientation discrimination brought against an employer in
state court by an employee covered by a collective bargaining
agreement was a preempted by federal law, as was a discrimination
claim against the employee's union, which had grieved his
complaints but refused to take them to arbitration.  Judge Eagan
found that the complaints by Laurence Wilhelm were cognizable under
the terms of the collective bargaining agreement, thus it was
inappropriate for him to have initiated a state court suit under
the Connecticut gay rights law.  (The defendants had removed the
suit to federal court under federal question jurisdiction, and
argued for dismissal based on settled principles of federal
preemption.)  Judge Eagan agreed with the defendants that if
Wilhelm wished to pursue a remedy in court, he should have filed
suit directly in federal court under sec. 301 of the Labor-
Management Relations Act within the statute of limitations provided
for such actions.  Unfortunately, although Wilhelm's claim, if
allowed under the state law, would have been timely, it was barred
by the six month statute of limitations applicable to sec. 301
claims.  Wilhelm's complaint also included some state law claims
that were not preempted by sec. 301; as to those, the court
remanded to state court, finding that in the absence of any viable
sec. 301 claims, the court no longer had subject matter
jurisdiction of the case.  A.S.L.

Texas Appeals Court: 30-Year "Lifemate" Relationship Between Men
Does Not Constitute "Undue Influence" in Will Contest

In a case that may involve a bequest to a gay life partner, the
Texas Court of Appeals in Houston held that the mere fact of a 30-
year relationship between two men, without more, does not suffice
to meet the test for undue influence to invalidate a will leaving
the entire estate to the survivor.  Evans v. May, 1996 WL 170236
(April 11).  The plaintiff, sister of decedent Jack Knickerbocker,
was contesting the will in which Knickerbocker designated his
"lifemate" Carl May as independent executor and sole beneficiary. 
Evans made several arguments, all rejected by the court as
insufficient to raise a legal challenge to the will.  

Of most significance here is the claim that "the decedent was
unduly influenced by May."  Wrote Judge Taft for the court, "It is
undisputed that May and the decedent lived together for over 30
years and had a `special' relationship.  The attorney who prepared
the will, Ruth Russell Schaefer, testified they were `lifemates.' 
Evans argues 30 years of living together provided the opportunity
for May to exert undue influence over the decedent and suggests
that the decedent and May's relationship as `lifemates' attempts to
describe `an unnatural and an unrecognized legal relationship.' 
There was no testimony as to what type of relationship the decedent
and May had other than that they were `lifemates'; however,
regardless of the type of relationship, the elements of undue
influence must exist in order to prevail on a claim of undue
influence."  

Texas courts had identified three essential elements, the burden of
proving which falls on the contestant: "(1) the existence and
exertion of an influence; (2) the effective operation of such
influence so as to subvert or overpower the mind of the testator at
the time of the execution of the testament; and (3) the execution
of a testament which the testator thereof would not have executed
but for such influence."  The court found that Evans had failed to
establish any of these elements.  "Furthermore," concluded Judge
Taft on this point, "we decline to hold that May's 30-year
relationship as the decedent's `lifemate' constitutes undue
influence as a matter of law."  A.S.L.

New York Governor Issues New Executive Order on Gay Bias; Lets
Military Recruiters Back on Campus

New York Governor George Pataki, a Republican, issued his Executive
Order No. 33 on April 9, barring sexual orientation discrimination
by agencies of the state that are answerable to him, thus
reaffirming a policy adopted by his predecessor, Democrat Mario
Cuomo.  At the same time, Pataki issued a separate order
authorizing the State University of New York to provide campus
access to recruiters from the U.S. Defense Department.  Pataki's
stated rationale for the military recruitment order was that the
adoption of the "don't ask, don't tell" policy somehow changed the
situation and eliminated discrimination on the basis of sexual
orientation in the military.  (Pataki should read the concurring
opinion in Thomasson v. Perry (see above), for a devastating
critique of that contention.)  The prior Cuomo executive order was
held to mandate exclusion of military recruiters from the state
university campuses in Doe v. Rosa, 606 N.Y.S.2d 522 (N.Y.Sup.Ct.,
N.Y.Co., 1993).

Pataki was heavily lobbied by New York State Conservative Party
Chairman Michael Long to end the ban on sexual orientation
discrimination in the state government, but he rejected this
position, stating: "I think the ultimate philosophy of a
conservative is that the state should not discriminate and that
people should be judged by their ability or willingness to work and
by their qualifications.  And that is what this Administration
intends to do."  Pataki also stated that he would urge Attorney
General Dennis Vacco to amend his own anti-discrimination policy
for the State Law Department to add sexual orientation; Vacco
issued an order omitting sexual orientation shortly after taking
office, but settled a lawsuit by a union representing his employees
protesting this unilateral change in working conditions by signing
a letter stating that his office would not discriminate.  The only
other statewide elected official, Comptroller Carl McCall, has
banned sexual orientation discrimination in his department.  N.Y.
Law Journal, April 10.  The Empire State Pride Agenda, New York's
statewide lesbian and gay rights lobbying group, made preservation
of the Executive Order a top priority.  A.S.L.

N.Y. Federal District Dismisses Discrimination Claims Against
Lesbian Supervisors

U.S. District Judge Michael Mukasey (S.D.N.Y.) dismissed an
employee's claims against Time Magazine alleging that she was
discriminated against by her two lesbian supervisors based on her
pregnancy and marital status.  Coraggio v. Time Inc. Magazine
Company, 1996 WL 139786 (S.D.N.Y., March 28).  

Kathy Coraggio, hired by Time in 1978, received extremely positive
performance evaluations from her supervisors and was promoted
several times.  In 1987, Coraggio became "Financial Manager of
Advertising Sales Administration" and was responsible for
implementing "Max-Plan," an advertising sales program she was
instrumental in designing.  The alleged discrimination began in the
summer of 1991 when Time restructured its sales and marketing
program, creating a new division consisting of four sub-divisions. 
Defendant Karen Magee was appointed General Manager of the new
division and was responsible for hiring directors for each sub-
division.  Coraggio's former supervisor suggested that she would be
a good choice for one of these positions, but Magee felt that
Coraggio lacked the requisite experience and did not interview her. 
Of the four chosen directors, two were married, although none had
children.

Under the reorganization, Max-Plan became part of one of the sub-
divisions and Magee became Coraggio's supervisor.  Time had already
begun to question the utility of Max-Plan when, in Fall 1991, Magee
met with Coraggio and informed her that her next salary increase
would be her last for at least 18 months.  In addition, she
suggested that Coraggio seek employment elsewhere at Time, due to
Max-Plan's imminent demise.  At this time, Coraggio was married and
six and a half months pregnant.  In February 1992, Coraggio went on
maternity leave.  When she returned to work, the Max Plan offices
had been moved, a "Dead End" sign was posted near these offices,
she and other Max-Plan employees had less to do and were asked by
Lisa Pols to submit a memo "revis[ing] their job descriptions and
goals."  Also, Pols began signing Coraggio's correspondence with
superiors and using Coraggio's secretary, forcing Coraggio to "type
her own letters and answer her own telephone calls."  In March
1993, after a management consulting firm found that Max-Plan was
costly and inefficient, Time terminated the program.  One day
later, Coraggio was terminated.

Coraggio alleged that her termination violated Title VII
(pregnancy) and the N.Y. Human Rights Law (marital status), in
essence contending that her lesbian supervisors discriminated
against heterosexual women who married and had children. The court
analyzed both claims together because, as the court stated,
plaintiff's proof for each claim was identical and each arose "from
common facts."

The court found that Coraggio did not establish her prima facie
case of discrimination, because she did not present crucial
evidence of her employer's discriminatory intent.  The intent
element requires the plaintiff to show that the person eventually
hired for the position "was not a member of the protected class" or
that the circumstances of the discharge "giv[e] rise to an
inference of unlawful discrimination."  The court rejected
Coraggio's argument that the fourth element can be satisfied by
showing that employees "not in the protected class were treated
more favorably" than the plaintiff.  The court reasoned that it is
entirely legal for employers to treat employees differently as long
as the differential treatment is not motivated by unlawful
discrimination.  Lack of evidence of unlawful discrimination, the
court explained, is where Coraggio's claim fails.  

The court found that although Coraggio submitted evidence that she
suffered "several work-related setbacks," she failed to present any
evidence that such events were the result of her status as a wife
and mother.  She presented no evidence that Pols' and Magee's
actions were motivated by discriminatory intent or that they had
negative feelings about pregnant or married employees.  Coraggio
never heard Pols or Magee make any discriminatory remarks, nor had
she heard of other employees hearing them make such remarks.  The
court determined that Coraggio's evidence of intent consisted
solely of her "subjective perception of events."  An employee's
subjective perception, the court stated, is not enough to give rise
to an inference of discriminatory intent.  Therefore, the court
concluded, Time's motion for summary judgement must be granted.

The court went on to say that even if Coraggio established her
prima facie case, Time presented sufficient evidence to establish
legitimate reasons for its actions.  One job requirement for the
new directors was possession of an MBA or CPA, of which Coraggio
had neither.  The court found the evidence of discrimination based
on marital status unconvincing since two of the directors hired
were married and Pols "was involved in a life-long relationship
akin to marriage."  Time presented evidence that the wage freeze
was imposed on all employees in her salary range.  There was no
evidence other than Coraggio's own "confidence," that Magee's
suggestion she seek other employment at Time was motivated by
anything other than concern for Coraggio.  In fact, the court said,
since Coraggio was not terminated until one and a half years after
the suggestion, it appears that her discharge was more the result
of the restructuring than any discrimination by Magee.  Time
presented evidence that the "Dead End" sign was posted, not as
Coraggio perceived it, to send her a message, but instead to inform
people that the hallway near the Max-Plan offices was in fact a
dead end.  The court found convincing Time's stated reasons for the
placement of her office, which though somewhat distant from her
secretary, was superseded in size only by Pols' office. In
addition, the court could not infer discrimination from Pols'
request for "goals and job descriptions" from Max-Plan employees
simply because Coraggio felt demeaned by being placed on the same
level as her staff.  The court saw Pols' conduct as entirely
appropriate under the circumstances.  

Finally, as to Coraggio's diminished work-load upon return from
maternity leave, the court reasoned that the reduction was an
understandable by-product of the phasing-out of Max-Plan, rather
than due to any discrimination.  The court found that even if all
these events occurred, and the court is bound to assume their truth
in ruling on the defense motion, the agglomeration of them does not
raise any issue of fact and "no reasonable factfinder could. . .
conclude. . . that the plaintiff's reverses were the product of
unlawful discrimination." E.A. 

Another Setback for Greenwood in Discrimination Suit

Gay attorney Scott Greenwood sustained another setback in his
ongoing litigation over his discharge by the Cincinnati firm of
Taft, Stettinius & Hollister.  We reported last month that the Ohio
Supreme Court refused to review a lower court's dismissal of his
primarily claim of employment discrimination.  Greenwood v. Taft,
Stettinius & Hollister, 1996 WL 106336 (March 6).  However, the
court of appeals had sent back to the trial court Greenwood's claim
of breach of privacy rights.  The Cincinnati Post reported April 17
that Hamilton County Common Pleas Judge Robert Ruehlman has now
dismissed the privacy claim.  According to the newspaper report,
Ruehlman found insufficient contested facts to justify a trial of
the claim, and presumably ruled against Greenwood as a matter of
law.  At press time, Greenwood was considering whether to appeal. 
(Three members of the Ohio Supreme Court had dissented from the
court's refusal to review the dismissal of Greenwood's discharge
claim.)  Greenwood was active in the campaign to defeat an anti-gay
ballot initiative in Cincinnati.  A.S.L.

N.Y. Surrogate Says Guardian Ad Litem Not Needed for Same-Sex
Couple Adoption Petition

N.Y. County Surrogate Renee Roth has published an opinion
explaining why she will no longer routinely appoint a guardian ad
litem for the infant in cases where same-sex couples petition for
adoption.  Matter of Adoption of J., NYLJ, April 25, p.29, col.3. 
Observing that in the past, such appointments were made because of
the "novelty" of the cases and "uncertainty surrounding their
inclusion in this state's statutory scheme of adoption," Roth
asserted that the N.Y. Court of Appeals' decision last year in
Matter of Dana, 86 N.Y.2d 651, "put to rest" such concerns. 
Observing that if this were a stepparent adoption case no guardian
ad litem would be appointed, Judge Roth "can discern no reason to
treat the instant application any differently.  To hold otherwise,
could well constitute a denial of equal protection under federal
and state constitutions."  Consequently, Surrogate Roth will not in
future appoint a guardian ad litem for the infant in such adoption
cases "unless special circumstances warrant further scrutiny." 
A.S.L.

Utah Freaks Out Over Gay Clubs in High Schools

In an extraordinary political frenzy, government officials in Utah
have gone to extraordinary lengths to avoid allowing lesbian and
gay high school students and their non-gay supporters form
extracurricular clubs to meet at the schools.  The immediate
response of the Salt Lake City School Board to this issue was to
ban all extracurricular clubs, after being advised by its legal
counsel that under the federal Equal Access Act the schools could
not allow other clubs to operate while banning a gay club.

     Attempting to get around the mandate of the federal act, the
legislature voted April 18 to approve Senate Bill 1003, which,
without expressly stating its purpose of forbidding the operation
of gay student organizations in the schools, provides that local
school boards can "deny access to any student organization or club
as it determines to be necessary to: (1) protect the physical,
emotional, psychological, or moral well being of students and
faculty; (b) maintain order and discipline on school premises; or
(c) prevent a material and substantial interference with the
orderly conduct of a school's educational activities." After
restating these purposes, the bill goes on to mandate that "a local
school board shall deny access to any student organization or club
whose program or activities would materially and substantially (i)
encourage criminal or delinquent conduct; (ii) promote bigotry;
(iii) involve human sexuality."  The bill also requires parental
consent for students to participate in sex education classes, and
at several points emphasizes that the schools should take action
against any employees or volunteers who may "support or encourage
criminal conduct by students, teachers, or volunteers."  This is
apparently aimed at the handful of lesbian and gay teachers who
have come out in the course of this controversy.  As we went to
press, it was assumed that Governor Mike Leavitt would sign the
bill, which passed the Senate 21-7 and the House 47-21 (margins
large enough to override a veto).  

     In an article reporting on passage of the bill published in
many newspapers on April 19, the Associated Press noted that nearly
90 percent of Utah legislators are members of the Mormon Church,
which officially takes a harshly negative view of homosexuality,
and that Republicans control both houses of the legislature.  The
ACLU was reported to be poised to file a lawsuit challenging the
constitutionality of the measure if it became law.  

     Meanwhile, the Salt Lake City school board, not to be outdone
by the legislature, indicated that it would "absorb" certain
student clubs (e.g., Aviation Club, Dance Club, Cheerleading Club,
Golf Club) into the curriculum while banning such student clubs as
the Black Students Club, the Latino Pride Club, and Students
Against Drunk Driving.  A.S.L.

Court Sustains Conviction for Anti-Gay Murderer

In State v. Peavyhouse, 1996 WL 129840 (Tenn. Crim. App., March
22), Lester A. Peavyhouse appealed his conviction of two counts of
murder, two counts of attempted murder, four counts of assault, and
one count of possession of an unlawful weapon in connection with
attacks he made on attendees of a Halloween party in a neighboring
apartment.  The Tennessee Court of Criminal Appeals upheld
Peavyhouse's aggregate sentence of two consecutive life terms plus
56 years imprisonment for shooting his neighbor, Robert Huff, and
guests attending Huff's party after Peavyhouse complained to police
about harassment "of a homosexual nature."  

Around midnight on October 31, 1991, Peavyhouse called police
regarding loud music and noise coming from Huff's apartment.  Huff
was having a Halloween party with a number of friends and, along
with one of his guests, was dressed in full drag for the occasion. 
Peavyhouse told the arriving officer that he had been harassed by
the occupants of Huff's apartment on previous occasions.  The court
found that after the police officer left, Peavyhouse told Huff he
would "be back," returned with a sawed-off .410 shotgun, and shot
Huff in the chest.  The guests scattered either out the back door
or into the bathroom.  Seconds later, Peavyhouse kicked open the
bathroom door, shot one occupant in the stomach, reloaded, and then
shot the other occupant, who later died.  Peavyhouse then left the
apartment and fired two shots at the car containing several other
guests as they sped away from the scene in reverse.  At some point
during the attack, another guest was shot, and was later found dead
in the driveway.

Peavyhouse made his way to a nearby convenience store and called
911 to report the incident.  He was covered with blood but,
according to witnesses including one of the party guests who
escaped there to also call the police, sounded very calm and
serene.   The police arrived moments later and took Peavyhouse into
custody.  Peavyhouse said he did not know how the blood got on him. 
Shot fragments from the scene were found to match a weapon later
found in Peavyhouse's apartment, along with an empty box of
matching ammunition.  

Huff acknowledged that he was bisexual, but denied ever having made
homosexual threats toward Peavyhouse or suggesting any sort of
homosexual acts.  A few weeks earlier, Peavyhouse had written a
letter to the editor of the Austin Peavy University newspaper,
where he attended classes.  The letter contained derogatory remarks
about homosexuals, made reference to Huff's supposed homosexual
threats against him, and concluded that "homosexuals should not be
surprised if they get bashed."
Since 1972, the forty-one year-old Peavyhouse had been convicted of
other crimes and hospitalized many times for mental illness.  In
1978, he was diagnosed with a paranoid personality disorder and
expressed a fear of homosexuals, although he was not considered
psychotic.  In 1985, he had struck his sister in the head with an
ax after she refused to drive him home.  He was mentally evaluated
and eventually committed, reporting auditory hallucinations
involving rapes and homosexuals, and expressing fears that members
of minority groups, especially homosexuals were "out to get him." 
At the time of the attack, he was taking a low to moderate monthly
dosage of medication for chronic paranoid schizophrenia.

On appeal, the court found evidence sufficient for a jury to
conclude that Peavyhouse was legally sane at the time of the
crimes.  Two psychologists from the Middle Tennessee Mental Health
Institute so testified, and the court emphasized that at the time,
he was not a disturbance to the community, was living independently
and was attending college.  The court likewise rejected the other
claims of the appeal, including alleged errors in sentencing. 
R.D.L.  

Louisiana Judge Refuses to Enjoin Enforcement of Sodomy Law

Continuing a litigation strategy to kill, once and for all,
Louisiana's law against consensual sodomy, New Orleans Attorney
John Rawls ran into a roadblock in the form of Judge Walter Kollin
of Jefferson Parish District Court.  Rawls, representing the
Louisiana Electorate of Gays and Lesbians, Inc., had sued in
Kollin's court to enjoin District Attorney John Mamoulides from
enforcing the law, after Mamoulides asserted that a state-wide
preliminary injunction issued by the Orleans Parish District Court
was not binding on him.  Kollin accepted Mamoulides' argument that
he was not enforcing the law against consenting adults in private,
and concluded that the plaintiffs were not suffering any
irreparable harm that needed to be halted through injunctive
relief.  Assistant D.A. Terry Boudreaux indicated he would turn
over to Rawls files on all "crime against nature" arrests going
back to 1992, so that Rawls could confirm that the statute was only
being enforced against prostitution acts, as represented by the
D.A. to Kollin.  New Orleans Times Picayune, April 17.  A.S.L.

San Francisco Commission Rules Against American Legion

In a ruling announced April 16, the San Francisco Human Rights
Commission found that the American Legion's California division
discriminated on the basis of sexual orientation in its treatment
of the mainly-gay Alexander Hamilton Post in 1993.  The Hamilton
Post attempted to place an advertisement in the California
Legionnaire newspaper to explain its view of the gays-in-the-
military controversy, but was thwarted by Legion officials, who
told the Post that no political advertising was allowed when
actually the newspaper had accepted political advertising on other
subjects.  In addition, the Commission found that the Legion had
distributed homophobic materials through its San Francisco office,
including the notorious video "The Gay Agenda."  Due to preemption
by state civil rights laws, the San Francisco commission does not
have any authority to enforce its ruling in the courts.  However,
City Supervisor Tom Ammiano called for the expulsion of the
Legion's office from the War Memorial Building if the organization
doesn't take formal steps to comply with the Commission's ruling.
San Francisco Chronicle, April 17, April 23.  A.S.L.

Domestic Partnership & Marriage Notes

Add Georgia and Kansas to the list of states that have succumbed to
anti-gay marriage hysteria and passed preemptive bills designed to
prevent their courts from recognizing same-sex marriages contracted
in other states.  Bills have advanced in several other states, with
action by the governors pending in Arizona, Alaska and Illinois as
we went to press.  Also, further attempts were under way in the
Hawaii Senate to circumvent opposition from the leadership and
place a proposal on the ballot to amend the Hawaii constitution to
ban same-sex marriages in the state.

Another media industry big-shot heard from: Fox, Inc., announced it
would extend spousal health care benefits to employees' same-sex
domestic partners, effective June 1, according to a press release
issued April 2 by Hollywood Supports.  The policy covers more than
3500 employees in Fox Television Group and Fox Filmed
Entertainment, making Fox the second national television network to
provide this benefit.  Hollywood Supports noted that Rupert
Murdoch, owner of the Fox, is a member of the Hollywood Supports
Board of Trustees.  And we've also learned from an internet posting
that Reuters, the international news wire service, has provided
domestic partner benefits since last June to both gay and non-gay
partners of Newspaper Guild member and non-union employees.

The Central Conference of American Rabbis, the rabbinical
association of Reform Judaism with about 1750 members, voted March
28 to support civil marriage for lesbian and gay couples and to
oppose efforts by government to bar such marriages.  However, the
rabbis, gathered in Philadelphia for a convention, put off to the
future the potentially more contentious discussion about
authorizing reform rabbis to perform religious marriage ceremonies
for such couples. New York Times, March 29.

Phillip and Toshav Storrs, the Ithaca, N.Y., couple whose marriage
license request was rejected by city officials, have filed an
action in N.Y. Supreme Court, Tompkins County, against City Clerk
Julie Holcomb, claiming that denial of the license violated their
rights of equal protection, due process, privacy, and freedom of
intimate association.  They also asserted a claim under the
Establishment Clause, arguing that restricting marriage to
opposite-sex couples showed a preference for the religious
perspectives of "some segments of the population while denying that
of others."  Although some city officials had wanted to grant the
license (and the city council passed a resolution in support of
doing so), ultimately the officials concluded that they did not
have authority to do so under state law.  

Residents of Nantucket, Massachusetts, voted 214-212 in a town
meeting on April 9 to "extend some of the rights of married couples
to gay and lesbian couples who register as domestic partners,"
according to an April 11 report in the Boston Globe which did not
specify what rights were extended. A.S.L.

Law & Society Notes

A conference committee of the U.S. House and Senate agreed to drop
provisions from a pending District of Columbia appropriations bill
that would have banned adoptions by gay couples.  

The General Conference of the United Methodist Church, held at the
Colorado Convention Center in Denver, was consumed with debate
about homosexuality and the church.  Fifteen bishops signed a
public statement supporting lesbian and gay rights before
presenting it to the Council of Bishops, which led to the calling
of an executive session of Bishops to deal with the issue.  A rally
that attracted several hundred participants demonstrated in favor
of the Church taking a positive position on gay rights.  A special
program was held at the Conference to provide an opportunity for
testimony by gay Methodists in support of the proposal.  At the
same time, a session was held by a group of so-called "former
homosexuals" to advance their argument that religious faith had
made them give up homosexuality.  Rocky Mountain News, April 19 &
20.  Ultimately, a majority of the Council of Bishops voted to
reaffirm existing church doctrine disapproving of homosexual sex
and ordination of non-celibate gays as church leaders, but a
significant majority dissented on the vote.  New York Times, April
25.

The Gay Officers Action League (GOAL) in New York City filed a
federal court suit against the City of New York on April 2,
claiming that the Police Department violated the constitution when
it refused to allow GOAL to have a ceremony and set up a display at
police headquarters to honor gay police officers.  The New York
Times reported April 4 that former Police Commission William
Bratton had approved such a display in June 1994 for Gay Pride
Month but that City Hall vetoed such a display last year.  The
complaint also alleged that the Department discriminatorily refused
to let GOAL use a department van during last year's Gay Pride March
and refused to let the department's marching band participate, even
though it participates each year in St. Patrick's Day and Columbus
Day marches.  

The U.S. Department of the Treasury has sent a warning to its law-
enforcement agents (Customs Service; Bureau of Alcohol, Tobacco and
Firearms; Secret Service; Internal Revenue Service) that they
should not engage in "off-duty manifestations of racial and other
forms of bias," including bias on the basis of sexual orientation. 
New rules adopted by the Department will take effect for all but
the Customs service, where they will have to be negotiated with the
agents' union.  Anti-gay bias has sparked complaints against
several agents in the past, including a New York federal lawsuit
resulting from an assault by some off-duty agents on two gay men.

Penny Culliton, a New Hampshire high school English teacher who was
fired by the Mascenic Regional School Board last year for assigning
students to read books with gay characters, won a reinstatement
order from a labor arbitrator, but the school board voted to appeal
the ruling to court.  The National Education Association, which is
defending Culliton, indicated it would file an unfair labor
practice charge against the board.  Boston Globe, April 17.
Meanwhile, the school board had voted prior to the arbitration
award that the three books whose use by Ms. Culliton led to her
discharge could be used in an upper-level English elective course,
but not in required English courses.  The books are "Maurice" by
E.M. Forster, "The Education of Harriet Hatfield" by May Sarton,
and "The Drowning of Stephan Jones" by Bette Greene.  Boston Globe,
April 4.

A Jersey City, New Jersey, ordinance dating from 1950 prohibits
nightclubs in that city from employing or serving "homosexualists
or persons impersonating homosexualists."  When Domenic Santana,
who had applied for a cabaret license and taken the time to read
the local ordinance, discovered this provision, he "was shocked,"
he told the Bergen Record (April 11), and promptly brought it to
the attention of Mayor Bret Schundler, who indicated he would ask
the City Council to pass an amendment deleting the reference to
gays. Presumably, the ban on employing or serving "known criminals,
prostitutes, pimps, procurers, . . . or persons of immoral
character " will be retained.  

Another old ordinance came to grief in April, when North Carolina
Superior Court Judge Marvin Gray affirmed a decision by District
Judge Philip Howerton finding unconstitutional a 1961 ordinance in
Charlotte that makes it a crime for a person to expose his or her
genitals to another person of the same sex.  The court pointed out
that literally construed the ordinance would make criminals of
people who use health club shower rooms.  But an attorney for the
Charlotte-Mecklenberg Police Department told the Charlotte Observer
(April 4) that police authority to deal with cruising activity by
gay men in city parks and public restrooms would be affected by
invalidation of the ordinance.

Three devout Christian law students at the University of Wisconsin
in Madison have sued the University in federal court, seeking an
injunction against use of student activity fees to fund various
organizations that the plaintiffs label as "engaging in political
or ideological advocacy."  Among groups named in the complaint are
UW Greens (an environmentalist group), the Lesbian, Gay & Bisexual
Campus Center, and the Campus Women's Center.  A spokesperson from
the Lesbian, Gay & Bisexual Center told the Capital Times (April 3)
that the group is a resource center for the campus community and
doesn't engage in off-campus advocacy.

The National Gay & Lesbian Task Force issued a report April 25
concluding that at least 3.2% of the American electorate is
lesbian, gay or bisexual.  The report was based on exit polling
from the 1992 election, which included questions by which voters
could self-identify their sexual orientation. Since many gay people
undoubtedly would not self-identify to a pollster, the data
represent a floor on the lesbian/gay/bisexual percentage.  The data
indicated that the gay proportion of the electorate in some cities
was much higher, producing figures such as 8.2% in Rochester, N.Y.,
and Toledo, Ohio.  (The new gay Meccas?)  These numbers put gays as
a larger proportion of the national electorate than Asian-
Americans, and about equal to Latinos. San Francisco Examiner,
April 25.  A.S.L.

International Notes

The Dutch House of Representatives voted 81-60 on April 16 for a
resolution calling on the government to initiate an inquiry into
two issues: whether marriage should be available to same-sex
couples, and whether such couples should be able to adopt children. 
Some government officials have expressed reservations about taking
such steps, in part due to international implications both within
and outside the European Community.  The commission established to
undertake this inquiry is directed to report by August 1, 1997. 
Some press sources mistakenly reported that the Dutch parliament
had approved same-sex marriage, but a bulletin posted to the
Internet by Andy Quan, coordinator of the International Lesbian and
Gay Association, clarified that this action was limited to setting
in motion a formal policy debate in the Netherlands.  

On April 16, Svend Robinson, an openly gay member of the Canadian
Parliament, introduced a bill to add sexual orientation to Canadian
human rights statutes.  Robinson is a member of the minority New
Democratic Party.  Prime Minister Jean Chretien of the Liberal
Party had made a public commitment to advance such legislation in
the House of Commons before the next national election, and some
sort of vote was predicted to take place before summer.  However,
there was uncertainty as we went to press over whether Chretien
would make it a party vote (where party discipline would be
enforced against any members of the majority who voted against the
measure) or a free vote. In the meantime, the Toronto Star reported
on April 25 that the Canadian Senate unanimously approved a bill to
amend the Human Rights Act to add sexual orientation and sent it to
the House, and one source told the Star that the government would
introduce a similar measure on April 29 (after our press date). 
A.S.L.

Professional Notes

The Special Committee on Lesbians and Gay Men in the Profession of
the Association of the Bar of the City of New York has published
two reports in the March 1996 issue of the Record of the
Association of the Bar of the City of New York (Vol. 51, No. 2). 
The titles are: Report of Findings from the Survey on Barriers and
Opportunities Related to Sexual Orientation (on page 130) and
Report on the Experience of Lesbian and Gay Law Students in New
York Metropolitan Area Law Schools (on page 145).  The reports
earned a front page story in the New York Law Journal on April 16
titled "Bias Against Gays Lingering In Courtrooms, Law Schools." 
Those desiring copies of the reports should contact the editor of
The Record at the Association of the Bar, 42 W. 44 St., New York,
NY 10036-6690.

U.S. District Judge Deborah Batts (S.D.N.Y.) was the guest speaker
at the Gaylaw Education Fund Benefit in Washington, D.C., on April
26.  The Gaylaw Education Fund is a 501(c)(3) educational
foundation established by the lesbian and gay lawyers organization
in Washington, D.C., devoted to "study and education regarding
prejudice and discrimination on the basis of sexual orientation
within the legal profession and society, and to the education of
legal professionals and the general public regarding the particular
legal issues faced by lesbians and gay men."  Judge Batts is the
only openly lesbian or gay lawyer to have been appointed and
confirmed as a federal district judge.  Donations to the Gaylaw
Education Fund can be sent to PO Box 76132, Washington, D.C.,
20013-6132. * * *  Judge Batts is also scheduled to be the keynote
speaker when the Massachusetts Lesbian & Gay Bar Association holds
its eleventh annual dinner on May 3 at the Back Bay Hilton in
Boston.  At that time, MLGBA will present its annual Public Service
Award to attorney Gary Buseck.  For information about attending the
dinner, contact Lisa Cukier at 617-277-6660.

Several openly gay judicial candidates were successful in the
California elections in March.  Kevin McCarthy overwhelmingly
defeated Douglas Moore for a contested Superior Court seat; Moore
was an incumbent recently appointed by the governor.  In the three-
way all-gay election for a San Francisco Municipal Court seat, no
candidate secured a majority, so a runoff will be held in November
between Matthew Rothschild and Kay Tsenin.  Gay attorney Rick Zbur
won a narrow Democratic primary victory in Long Beach for a
congressional seat. In other election results, Carole Migden became
the second openly-lesbian or gay member of the California Assembly,
winning election to fill out the rest of San Francisco Mayor Willie
Brown's term, and simultaneously won the Democratic primary to run
for a full term in November.  An openly-lesbian Assembly candidate
from Long Beach, Gerrie Schipskee, won 60% of the vote in the
Democratic primary.  Justin Raimondo, a conservative gay
Republican, won the Republican nomination to compete with Rep.
Nancy Pelosi for Congress in the fall. Washington Blade, March 29.

A gay attorney in San Francisco, Andrew T. Mead, has filed suit in
San Francisco County Superior Court against his former employer,
the law firm of Heller Ehrman White & McAuliffe, alleging HIV-
related discrimination.  According to his complaint, after Mead
notified the firm that he was HIV+, he was removed from significant
pending matters on which he was working, clients were notified
about his HIV status, and he was effectively forced to stop working
at the firm due to the discrimination against him.  Some gay
partners and associates were quoted in a legal newspaper, The
Recorder, as denying Mead's charges and asserting that the firm has
an excellent record on HIV/AIDS and gay issues.  Mead is
represented by lesbian/gay employment rights specialists Paul Freud
Wotman and Robert E. Lazo. A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 

New Jersey Appellate Division Holds Testing Law Constitutional

Reversing a decision by the Superior Court, Chancery Division, reported at 283 N.J.Super. 32
(1995), the New Jersey Appellate Division ruled April 22 in Interest of J.G., N.S., and J.T.,
1996 WL 189790, that New Jersey statutes requiring HIV-testing of individuals charged with
or adjudicated guilty of sexual assaults do not violate either the federal or state constitutions. 
The trial judge had found a potential 4th Amendment violation and refused to order HIV tests
requested by the state for three teenagers who pled guilty to aggravated sexual assault charges
early in 1995.

N.J.S.A. 2C:43-2.2a provides that upon the request of the victim and upon application of the
prosecutor, the court shall order a person charged with or convicted of an act that would
constitute sexual assault or aggravated sexual assault to submit to HIV testing.  N.J.S.A. 2A:4A-
43.1 contains a similar requirement, focusing specifically on juvenile defendants.  Neither statute
requires conviction as a prerequisite to ordering such testing.

After hearing several expert witness, the trial court made the following findings: "1) Testing the
juveniles for HIV infection would be of no use in the diagnosis of the victim. 2) Testing the
juveniles would provide no benefit in the medical treatment of the victim of sexual assault. 3)
Testing the juveniles would provide no benefit in the psycho-social recovery of the victim of
sexual assault."  The trial judge then noted the applicability of 4th Amendment search and
seizure doctrine, and balanced the state's "special needs" to test without individualized suspicion
against the juveniles' constitutional privacy rights, concluding that in light of the factual findings
listed above, the juveniles' privacy interests outweighed the state's interest.

The Appellate Division disagreed, in an opinion by Judge Cuff.  After emphasizing the hesitation
with which courts should approach the invalidation of statutes on constitutional grounds, Cuff
noted that appellate courts in several other states had upheld statutes requiring convicted
defendants to submit to HIV testing, even in one state where the range of crimes for which such
testing was mandated extended beyond those that could plausibly involve HIV transmission. 
Cuff also noted that academic commentary was overwhelmingly opposed to such legislation, but
not unanimously so. Balancing the interests involved, Cuff determined that the state's interests
were adequate to meet the constitutional test.

"Although the statutes under review are not accompanied by specific legislative findings," wrote
Cuff, " the state's interest in the health and safety of its citizens is a compelling interest.  The
state's interest in obtaining information of the HIV status of accused or convicted sex offenders
is readily apparent.  The most obvious interest is protection of the rights of victims.  Moreover,
the information concerning the assailant's status may ease the victim's anxiety concerning the
transmission of disease or may propel the victim to conscientiously monitor his/her own status. 
A properly counselled victim will have been told that he/she must continue personal HIV
surveillance.  Moreover, we are hesitant to dismiss a victim's desire to know the HIV status of
his/her assailant because a psychologist deems such information not in his/her best interest.  The
information derived from such testing also has readily discernible collateral, although
unarticulated, benefits.  The information can aid in effective prison and probation management
of the offenders, including appropriate treatment and counselling, if the offender is infected."

This recitation of the state's interests contradicts the unanimous, uncontested testimony of the
experts heard by the trial court.  Cuff then downplayed the defendants' privacy interests,
insisting that drawing a blood sample and subjecting it to lab analysis is not particularly intrusive
and that the confidentiality provisions of the statute are sufficient to safeguard the defendants'
privacy concerns.  Cuff also contended that U.S. Supreme Court precedents, based on public
employee drug-testing rules with public safety concerns, do not require that the state narrowly
tailor its approach to testing issues where the testing is for the primary purpose of protecting
victims rather than uncovering elements of a criminal offense.  Cuff also raised the issue that
scientific knowledge of HIV is continually evolving, thus perhaps undermining the expert
scientific testimony upon which the trial court relied.  (Actually, Cuff has a point there, although
it is not developed at all in the opinion or cited to any source, but new generations of HIV
testing now becoming available do render some of the trial court's conclusions obsolete
regarding the value of testing soon after an incident occurs.)

"When balanced, the individual defendant's interest in preventing a bodily intrusion and
disclosure of his HIV status is significantly less weighty than the compelling state interest in the
health and welfare of the victim in particular and the public in general," concluded Cuff, who
added, without any independent analysis, that the testing also would not offend the state
constitution.  The court also skipped quickly over the question whether the statutes offend due
process by extending testing to charged but not-yet-convicted defendants, commenting that
because each of these juveniles "has been adjudicated delinquent" the question was not before
the court.  (Actually, the state asked for the tests before the juveniles had pleaded guilty, which
the court conveniently overlooks.  Perhaps this renders the decision less conclusive on the
constitutionality of the statutes than it would appear at first glance.)  

Altogether, the opinion is not a marvel of analytical competence, and one suspects that further
appeal to the New Jersey Supreme Court might result in a more searching review of the
constitutional issues.  A.S.L.

Federal Appeals Court Recognizes Right of Physician-Assisted Suicide in Case Brought by AIDS
Docs and Patients

In a historic decision announced on April 2, a 3-judge panel of the U.S. Court of Appeals for
the 2nd Circuit ruled that New York laws outlawing physician-assisted suicide violate the Equal
Protection Clause of the 14th Amendment.  Quill v. Vacco, 1996 WL 148605.  Although
differing in its rationale, the 2nd Circuit thus joined the 9th Circuit, which had struck down a
similar law in the state of Washington on March 6 on constitutional liberty grounds. Compassion
in Dying v. Washington, 1996 WL 94848. 

The New York case was originally filed on July 20, 1994, by three doctors and three terminally
ill patients.  Two of the doctors and two of the patients were specifically concerned with the
ability of physicians to assist end-stage AIDS patients in ending their lives if their suffering
became intolerable.  The two persons with AIDS, since deceased, were George Kingsley and
William Barth.  (The third patient, identified in court papers as Jane Doe, suffered from
incurable thyroid cancer.)  Both Kingsley and Barth were experiencing a multitude of
opportunistic infections causing severe pain, and were diagnosed terminal by their doctors.  Each
sought to have the assistance of a doctor in prescribing medications that the patient could
administer to himself to end his life when he deemed it appropriate.  Their doctors hesitated to
provide such assistance because of N.Y. Penal Law sections 125.15 and 120.30, which make
it a felony for any person to assist another in committing or attempting to commit suicide.  The
challenge proceeded under both the Due Process and Equal Protection clauses.  

The plaintiffs argued that the right to die is a fundamental right, so that laws impeding the
exercise of that right by stopping doctors from helping a mentally competent patient to commit
suicide would violate due process because the state had no compelling interest to keep terminally
ill patients alive.  The court rejected this argument.  While it conceded that the 9th Circuit had
accepted a similar argument in the Washington case, it was unwilling to reach the same
conclusion.  The opinion by Judge Roger Miner, a Reagan appointee, is based largely on Bowers
v. Hardwick, 478 U.S. 186 (1986), in which the Supreme Court upheld Georgia's felony
sodomy law.  Miner quoted liberally from Hardwick, which expressed hostility to extending the
list of unwritten fundamental rights protected under the Due Process clause.  In light of this
reluctance by the Supreme Court, Miner asserted that it would be inappropriate for the court of
appeals to go further than the Supreme Court has gone in its limited precedent on these issues.

The Equal Protection argument was based largely on other New York laws that permit people
to refuse treatment for terminal conditions, including having the assistance of their physicians
in ending artificial life support.  The plaintiffs argued that it is as much physician-assisted
suicide when a doctor terminates life support assistance at the direction of a patient as when a
doctor prescribes medications with which a patient can end his or her own life.  Since both are
instances of physician-assisted suicide, argued the plaintiffs, it is irrational for the state to permit
one while forbidding the other.  

In the District Court, Judge Thomas Griesa found that there is enough of a difference between
discontinuing life support and prescribing fatal drugs to justify different treatment by the state. 
Miner disagreed.  He found that "the distinctions made by New York law with regard to
[terminally ill] persons do not further any legitimate state purpose."

"What interest can the state possibly have in requiring the prolongation of a life that is all but
ended? Surely, the state's interest lessens as the potential for life diminishes," wrote Miner. 
"And what business is it of the state to require the continuation of agony when the result is
imminent and inevitable?  What concern prompts the state to interfere with a mentally competent
patient's `right to define [his] own concept of existence, of meaning, of the universe, and of the
mystery of human life,' when the patient seeks to have drugs prescribed to end life during the
final stages of a terminal illness?  The greatly reduced interest of the state in preserving life
compels the answer to these questions: `None.'"

Circuit Judge Guido Calabresi joined the majority with a concurring opinion emphasizing that
most of the policies underlying the original enactment of the New York laws had been eroded
by time and legislative and judicial developments.  Although he drew back from outright
agreement with the majority on the ultimate unconstitutionality of the laws, he agreed that on
the present state of the record the laws should be struck down as lacking sufficient state policy
support.  (Fans of Calabresi's important book, A Common Law for the Age of Statutes, will
find his concurring opinion a fascinating application of the thesis of that book.)

New York Attorney General Dennis Vacco announced he would seek review of the decision,
perhaps ultimately in the Supreme Court, which seems where the state of Washington decision
is headed as well.  Meanwhile, the Circuit Court sent the case back to Judge Griesa for the entry
of an ordering barring enforcement of the law against doctors who wish to prescribe drugs for
mentally-competent terminally ill patients who wish to self-administer drugs to end their lives. 
A.S.L.

Federal Court Says Exclusion of PWA From Group Health Plan May Violate ADA

In a decision released March 25, U.S. District Judge Howell Cobb (E.D. Tex.) held that an
employer may have violated the Americans With Disabilities Act (ADA) by switching to a new
group health insurance provider that would not provide coverage for employees with AIDS. 
Anderson v. Gus Mayer Boston Store of Delaware, 1996 WL 174767.  However, in denying
motions for summary judgment by both parties, Cobb left open the possibility that the employer
could demonstrate that providing insurance to the employee would present an undue hardship
to the business, a recognized defense under the ADA.

David Anderson was first employed as a buyer by the defendant, a retail women's fashion store
in Beaumont, Texas, in 1982, and was covered by the defendant's group health insurance plan,
under which defendant paid half the premium and employees paid half the premium.  In 1988,
Anderson was diagnosed with testicular cancer, for which he received treatments covered by the
insurance.  In 1989, Home Life Insurance began writing the group's coverage.  In 1991,
Anderson was diagnosed as HIV+ and soon progressed to AIDS.  Fearful that this would affect
his job and his insurance, he went to a private physician and paid out of his own pocket for this
treatment.  However, in August 1991 the doctor mistakenly sent an AIDS-related bill to Home
Insurance, which then learned of Anderson's condition.  

In September 1992, Home announced a sharp premium increase for the group (based
significantly on Anderson's past cancer treatments and ongoing AIDS treatments), and some
employees complained to the employer about the sharp increase in premiums.  Several said they
would withdraw from the group if coverage could not be provided on a more reasonable basis. 
The employer then contracted with John Alden Life Insurance Co., with the understanding that
John Alden did individualized underwriting for participants.  Although Anderson expressed
trepidation about whether he would be covered, the employer urged him to fill out the forms and
submit his application.  Anderson did so, but was rejected for all coverage.  The employer did
nothing to provide Anderson with alternative coverage.  Anderson filed charges with the EEOC,
which determined that the employer violated the Act by depriving Anderson of equal access to
benefits coverage, and the lawsuit followed.

Cobb's analysis of the cross-motions for summary judgment is sometimes confusing, but
ultimately his determination is that Anderson (who has since died) was a qualified person with
a disability, and under the uncontested factual scenario related above the employer had engaged
in disability discrimination by switching to a carrier that completely excluded Anderson from
coverage.  Cobb pointed out that section 501(c), which the employer argued as a defense, did
not really apply to this case.  Section 501(c) allows employers to set up insurance plans that use
actuarial standards to determine rates and coverage.  According to Cobb, this means that an
employer might be able to provide different levels of coverage to particular employees based on
actuarial risk principles, but it does not mean that an employer can provide no coverage at all
for a PWA, even for non-AIDS related claims.  Thus, this case does not present the same issue
as cases about so-called AIDS benefit caps, or pre-existing condition exclusions, since the
employer here was providing Anderson with no coverage for anything.  (Cobb noted, in dicta,
that AIDS-specific exclusions might be lawful "in some situations," but that "complete denial
is a per se violation of the ADA's mandate that employers provide individuals with disabilities
equal access to group health insurance.")

However, Cobb observed that summary judgment in favor of Anderson would not be appropriate
without further factfinding. "The ADA explicitly recognizes that integrating disabled individuals
into the workforce often will result in increased costs," he wrote. "Increased costs are thought
to be the price we as a people must pay for equal dignity.  There comes a point, however, where
enormous expense involved in providing equal terms of employment to an otherwise qualified
individual may result in an undue burden for a covered entity."  In this case, Cobb noted, the
burden was on the employer to show that "coverage for a discrete group of disabilities would
be so expensive as to cause the Employer's plan to become financially insolvent.  The employer
must also show that there is no alternative which would avoid the insolvency." 

The Andersons are represented by Shimon Kaplan of East Texas Legal Services, Inc., in
Beaumont, Texas. A.S.L.

Federal Court Refuses to Dismiss Fear of AIDS Needlestick Case

U.S. District Judge Gawthrop (E.D.Pa.) refused to dismiss a diversity suit claiming damages
for emotional distress stemming from a needlestick accident in a Philadelphia hospital.  Murphy
v. Abbott Laboratories, 1996 WL 180698 (April 9).  Rejecting a motion to dismiss a negligence
claim by the manufacturer of a device intended to prevent needlesticks, the court found that
Pennsylvania law authorizes claims for emotional distress stemming from actual injuries.

Mary Murphy, a registered nurse, was caring for an HIV+ patient and sustained the needlestick
after having used the needle to administer antibiotics to the patient.  Her suit claims negligent
manufacture of the device used to cap the needle.  There was no allegation of a positive HIV
test.  Murphy alleged, rather, that she had sustained severe emotional distress due to fear of
contracting AIDS as a result of her needlestick injury.

Reviewing Pennsylvania tort law, Gawthrop concluded that "all consequential damages flowing
from the physical injury [i.e., the needlestick] are recoverable.  Plaintiff argue that to be
emotionally distressed at the prospect of contracting AIDS after having been stuck by a needle
which had shortly before been immersed in the bodily fluids of one who had already tested
positive for AIDS, is a natural consequence of that physical injury.  I agree."  Gawthrop
distinguished a variety of other Pennsylvania cases in which courts dismissed AIDS fear claim,
in each instance showing that factual differences made those distinguishable.  A.S.L.

Fraudulent Concealment of HIV Status Does Not Block Application of Incontestability Clause
in Insurance Case

The California Court of Appeal refused to allow a life insurance company to avoid coverage
based on an insured's apparent fraud in concealing his HIV status.  Amex Life Assurance Co.
v.  Superior Court, 1996 WL 138531 (Cal. App. 2d Dist. Mar. 27).  Jose Morales applied to
Amex for a life insurance policy but apparently sent an imposter to take the medical exam. 
Blood samples taken from the imposter tested negative for HIV, and Amex issued the policy. 
Morales subsequently sold the proceeds of the policy to a viatical company which sought to
collect the benefits when Morales died.  The trial court denied the insurance company's motion
for summary judgment.  The Court of Appeal held that California's incontestability statute
prevents the nullification of an insurance contract more than one year after it has been issued,
essentially creating a statute of limitations within which the insurance company may contest
coverage.  Given the light burden on
the insurance company of protecting itself against fraud -- it did not even check the imposter's
driver's license at the exam -- the court was willing to apply the incontestability statute strictly
against the insurance company.  Nor was the insurance contract void due to lack of mutual
assent under an "imposter" defense, because there was mutual assent as to the identity of the
policyholder.  The court contrasted the facts of this case with cases from other jurisdictions
where the imposter defense worked because someone applied for insurance using another's
name.  D.W.

AIDS Discrimination Claim Under State Law Is Entitled to Federal Jury Trial

U.S. District Judge Perry (E.D.Mo.) ruled that a claim under the Missouri Human Rights Act
seeking damages was subject to jury trial at the plaintiff's demand in federal court, even though
the Missouri statute does not authorize jury trials.  Sherer v. Foodmaker, Inc., 1996 WL 172492
(April 10).  Sherer claimed he was discharged "because he refused to `ease out' a subordinate
HIV-positive employee."  He filed a two-count complaint in federal court, Count II alleging
violations of the Missouri statute, and demanded a jury trial.  (Although the court never
discussed the other count or the basis for federal jurisdictions, one suspects that Count I was
based on federal law and Count II was asserted under the court's supplementary jurisdiction over
related state law claims.)  Perry premised rejection of the defendant's motion to strike the jury
demand on the 7th Amendment of the Bill of Rights, which provides that "in suits at common
law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall
be preserved."  Perry also noted that federal courts in several prior cases dating back to 1988
had ruled that jury trials were available on Missouri Human Rights claims in federal court,
despite the lack of a jury trial right in the state court.  After analyzing the remedies available
under the state statute, Perry concluded that "punitive and actual damages such as provided for
by the MHRA are traditionally issued by courts of law," so that plaintiff "is entitled to have his
MHRA claim heard by a jury when the case is brought in federal court."  A.S.L.

State Officials Immune in HIV-Privacy Suit

U.S. District Judge McAvoy ruled in Doe v. Marsh, 1996 WL 132979 (N.D.N.Y. March 19),
that New York State Education Department employees who had prepared an HIV prevention
publication were immune from suit under 42 U.S.C. sec. 1983 by persons with AIDS who
objected to the use of their names in the publication.  Plaintiffs John Doe and Jane Roe were
both active in HIV-prevention activities, including public participation in forums and workshops
where they had been open about their HIV status and their identities.  In preparing a publication
titled "Setting Up HIV Prevention Programs Including Persons Living With HIV/AIDS," the
State Education Department included an acknowledgement page.  John and Jane Doe were listed
"among a number of individuals mentioned by their full names as having contributed to the
success of the program and referenced as `living with AIDS'."  They brought suit under 42
U.S.C. sec. 1983 against Naomi Marsh and Arlene Sheffield, department employees who
participated in preparing the publication, as well as other department officials, claiming a
violation of constitutional privacy rights.

Public employees enjoy qualified immunity from suit for performance of their official functions. 
However, they are not immune as individuals if they violated clearly established constitutional
rights.  Turning to the state of the law in 1992 when the publication was prepared, Judge
McAvoy found that a right of privacy in one's HIV status was reasonably well established in
case law by that date.  However, McAvoy also found that, based on the activities of the
plaintiffs, a reasonable person in the position of defendants Marsh and Sheffield would have
believed that John and Jane Doe had effectively waived their rights to privacy by their very open
and public participation in HIV prevention activities in which they had revealed their names and
HIV status.  Thus, the court concluded that these defendants were immune from suit.  In
addition, the court noted that the other named defendants did not play a personal role in the
preparation or approval of the publication, so they could not be sued under sec. 1983.  A.S.L.

Florida Appeals Court Certifies Statute of Limitations Question to State's Supreme Court

Noting the harsh result of dismissing a malpractice suit against a doctor who ordered a
transfusion that resulted in HIV transmission due to a "tort reform" statute's absolute limitations
bar, the Florida 4th District Court of Appeal has certified a question to the Florida Supreme
Court.  Damiano v. McDaniel, 1996 WL 164664 (April 10).  The transfusion was administered
in June 1986.  Francine Damiano was not notified to be tested for HIV until 1990, when she
tested positive in April.  She did not discover that she had AIDS until August 1990, when she
received her diagnosis.  A notice of intent to sue her doctor for malpractice was filed in
February 1992, and suit began June 26, 1992.  Under the Florida malpractice law, a malpractice
action "in no event shall . . . be commenced later than 4 years from the date of the incident or
occurrence out of which the cause of action accrued."  Fla. Stat. sec. 95.11(4)(b).  Thus, the
time to file suit ran out in June 1990, just a few months after Damiano learned she was HIV+. 
The trial court dismissed her claim as time-barred.

Judge Stone concluded that the trial court had correctly applied the statute, but noted that the
absolute bar "may be viewed as uniquely unfair in the context of a disease that often does not
reveal itself until well after the repose period will have expired."  Since the Florida Supreme
Court "has never directly addressed the application of this statute or repose to a disease that
ordinarily does not manifest itself until after the statute runs, thereby raising substantial
constitutional questions by depriving a large class of persons of access to the courts," the appeals
court certified the following question:  "Is the medical malpractice statute of repose
unconstitutionally applied, as a violation of Article I, Section 21 of the Florida Constitution, in
barring an action for medical malpractice where the injury, resulting in AIDS, does not manifest
itself within the statutory four year term from the date of the incident resulting in the subsequent
infection?"  Of course, this certified question omits to point out that in this case the plaintiff
learned of her HIV-infection (and apparently was advised that it probably stemmed from the
blood transfusion) at a time when the statute of limitations had not yet run out, albeit leaving
only a few weeks to file suit.  A.S.L.

N.Y. Appellate Division in Brooklyn Continues to Exempt Private Dental Offices from
Nondiscrimination Requirement

Persisting in a view expressed in two cases during the fall of 1995, a unanimous panel of the
N.Y. Appellate Division, 2nd Department, annulled a discrimination determination against a
dentist by the New York State Division of Human Rights in Schulman v. State Division of
Human Rights, 1996 WL 194755 (April 22).  An Administrative Law Judge for the Division had
found that a dentist had discriminated against a patient because he was "perceived to be at risk
for HIV infection" and awarded $25,000 in compensatory damages.  "However," wrote the
court, since the petitioners were private practitioners and operated on an appointment basis in
private facilities, their dental office did not operate as a clinic, and therefore, did not constitute
a `place of public accommodation' within the meaning of Executive Law sec. 296."  This gap
in state law coverage is remedied by the federal Americans With Disabilities Act, which clearly
covers private health care offices, and which has been construed to extend coverage to those
discriminated against because perceived to be at risk for HIV infection.  A.S.L.

Hospital Awarded Litigation Costs in False-Positive Case

In Hall v. Regents of University of California, 1996 WL 139706 (Cal.App., 3rd Dist., March
28), the defendant sought costs after its motion for summary judgment was granted against
Justine Hall, a pregnant woman who claimed the hospital negligently delayed revealing to her
that she was HIV-negative. 

Hall originally tested positive to an enzyme-linked immuno-sorbent assay (ELISA) test, a test
intentionally sensitive to false positive readings in order to avoid false negative readings. 
Normally after a positive ELISA result, a second ELISA test is done.  If there is a second
positive result the Western Blot is performed for final verification.  Hall's doctor from the
Sacramento Maternal and Family Medical Group informed her of her positive status and referred
her to the University of California at Davis Medical Center (UCDMC) before receiving the
results of the Western Blot.  At UCDMC Hall tested negative on the ELISA test in December,
1991.  A second test was not done until February, 1992.  Hall was informed of the second
negative test result within 24 hours.

Dr. George Kent, Hall's only expert witness, testified at a deposition that UCDMC did not
breach its standard of care by delaying two months in informing Hall of her negative test results. 
Hall's attorney, Ralph Drayton, remarked at the time that this occurrence "finished off" his case
against UCDMC.  Drayton refused, however, to dismiss UCDMC as a defendant, claiming that
he intended to proceed on a theory of ordinary negligence.  Upon the granting of their motion
for summary judgment, UCDMC filed a motion to recover defense costs pursuant to Civil
Procedure Code sec. 1038, which authorizes the award of defense costs in any civil proceeding
under the California Tort Claims Act "[i]f the court should determine that the proceeding was
not brought in good faith and with reasonable cause. . . "  Without making an express finding
on good faith or reasonable cause, the trial court sided with Drayton's tactical argument that he
had no real choice but to pursue the case to summary judgment to avoid an "empty chair"
argument by the remaining defendants, and that had he not done so he might have been guilty
of malpractice for not maintaining the litigation to that stage.

The Court of Appeal, however, concluded that Hall's tactical concerns did not constitute
reasonable cause as a matter of law.  Reasonable cause, the court pointed out, must be
determined objectively.  The proper test is whether any reasonable plaintiff or attorney who
knew all the facts known to Hall and Drayton at the time the action was maintained would have
believed that there was a possibility of a tenable claim, despite the deposition of Dr. Kent that
UCDMC did not breach its standard of care.  The plaintiff's tactical reasons for maintaining the
claim do not make the underlying claim any less frivolous.     

The Court of Appeal awarded costs to defendants, noting that to allow for Hall's tactical
concerns would be to remove the exact economic disincentives for frivolous lawsuits which
1038 was designed to provide.   D.P.   

Discriminatory Village Loses Claim for Liability Insurance Coverage

In 1990, the Village of Waterford, N.Y., reacted to a proposal to create a group home for
people with AIDS by amending its zoning law to exclude such a usage from the village, and the 
village's zoning board refused to grant a variance from the law to allow the home to be built. 
The proponents of the home filed suit in federal court under the Fair Housing Act, and the
village turned to its liability insurer to pay for defense of the action.  The insurer stated its
reservations, noting that its policy did not cover zoning board actions and, as the litigation
developed, also noting that it did not cover intentional unlawful acts.  (During the village's
consideration of the zoning amendments, it was warned that what it was doing probably violated
federal law.)  Ultimately, the village lost the federal lawsuit (see Support Ministries v. Village
of Waterford, 808 F.Supp. 120), and the insurer refused to pay for the defense.  The village
brought this action in state court seeking a declaration that the insurer was liable on the policy. 
The N.Y. Appellate Division, 3rd Department, ruled in Village of Waterford v. Reliance
Insurance Co., 1996 WL 172143 (April 11), that the insurer had effectively disclaimed coverage,
which was proper under the policy.  A.S.L.

N.Y. Court Gives Broad Reading to Statute Mandating HIV-Testing of Sex Crime Convict

Section 390.15(1)(a) of the N.Y. Criminal Procedure Law provides that: "In any case where the
defendant is convicted of a felony offense enumerated in any section of article one hundred thirty
of the penal law, or any subdivision of section 130.20 of such law, where an act of "sexual
intercourse<" or "deviate sexual intercourse," as those terms are defined in section 130.00 of
the penal law is, required as an essential element for the commission thereof, the court must,
upon a request of the victim, order that the defendant submit to human immunodeficiency (HIV)
related testing."  On April 4, Daniel Judge Palmieri of the N.Y. Supreme Court, Nassau
County, was called upon to determine  whether a defendant who pled guilty to Sexual Abuse in
the First Degree, a felony in which sexual intercourse is part of the underlying conduct, but for
which "sexual intercourse" is not an essential element in the commission, can be compelled to
submit to HIV testing.  The question presents an issue of statutory interpretation where the
statute does not provide a direct answer to the question.  Palmieri concluded, after a review of
the legislative history, that the legislature intended that the requirement of HIV related testing
should not be restricted to only those felonies where intercourse was an essential element. 
Concluding that this interpretation would provide the broadest protection to the victim, Palmieri
ordered that the defendant submit to HIV testing. People v. John Doe, N.Y.L.J., April 5, 1996
(N.Y. Sup. Ct.).  T.V.L.

Claim For False Positive Report Revived

In a brief memorandum opinion that says little about the underlying facts of the case, the N.Y.
Appellate Division, First Department, ruled in Schulman v. Prudential Insurance Co., 1996 WL
164313 (April 9), that a claim for negligent infliction of emotional distress could be maintained
based on an erroneous report of an HIV+ finding from a blood test.  The court determined that
such a report is a "`special circumstance' that provides assurance that [the claim] is genuine and
not spurious. . .  It is clear that the defendants who handled the blood sample and issued the
erroneous report owed a duty of care, under the circumstances herein, to this plaintiff, even in
the absence of a direct relationship with him."  However, the court dismissed the claim against
co-defendants "who had no connection to the vials of blood giving rise to the erroneous result." 
A.S.L.

Florida Jury Acquits HIV+ Man of Attempted Murder for Sex With Boy

A jury in Palm Beach County Circuit Court voted to acquit Eddie Cantrell of counts of rape and
attempted second degree murder for having sex with a 13-year-old boy when Cantrell knew that
he was HIV+.  The jury did find Cantrell guilty of criminal negligence, after determining that
the sexual contact was consensual.  Cantrell was sentenced to 60 days, but was expected to be
released promptly since he had been jailed for over a year since his arrest in April 1995.  Circuit
Judge Howard Berman had excluded any testimony about the boy's HIV status, which is
positive, because apparently the boy is infected with a different strain of the virus from that
which infects Cantrell!  Sun Sentinel, April 5.  A.S.L.

Court Orders N.Y.C. to Let Church Hold Condom Demonstration in City Park

The demonstration of condoms in a New York City park is a protected form of speech under
the First Amendment, ruled Justice Alice Schlesinger in Kalke v. City of New York, N.Y.L.J.,
Apr. 2, at 26 (N.Y. Sup. Ct., N.Y. County).  

The Reverend David Kalke is the pastor of the All Saints Lutheran Parish in Bronx, New York. 
The parish serves the South Bronx, an area very hard hit with HIV infection, especially in its
adolescent population.  In June 1995, Kalke sought a permit from the Parks Department to
sponsor a basketball tournament in Saint Mary's Park in the Bronx.  Kalke also advised the
Parks Department that the Church intended to set up an AIDS awareness table where condoms
would be demonstrated and distributed.  A permit was issued, however, the permit banned
condom distribution at the basketball tournament.  On June 30, 1995, Kalke petitioned the court
to enjoin the Parks Department from preventing the demonstration and distribution of condoms
at the tournament.  The court issued the injunction.  This was appealed to the Appellate
Division, First Department.  

On July 1, 1995, Justice Israel Rubin, Appellate Division, First Department, ordered that the
Church be allowed to distribute condoms to persons over the age of sixteen and only in the
immediate area around the basketball courts.  There were to be no demonstrations of condoms
during the event.  The basketball tournament was held on July 2, 1995 and condoms were
distributed. 

Effective January 1, 1996, the Parks Department issued a new guideline regulating the
demonstration and distribution of non-commercial products including condoms.  Kalke applied
for a new permit to hold a basketball tournament this July, during which condoms will be
distributed and demonstrated.  As of the date of this decision, the Parks Department had not
acted on that application.  After filing the application, Kalke petitioned
the court for a preliminary injunction barring the City from enforcing the regulation governing
the non-commercial distribution and demonstration of products in City parks.

Justice Schlesinger issued an injunction barring the City from enforcing the regulation as it
relates to the demonstration and distribution of condoms.  She found that the demonstrations,
which would involve application of a condom over a piece of fruit or a vegetable, has elements
of pure verbal communication and physical action.  Recognizing that free speech is not limited
solely to verbal expression, she found this form of show and tell to be protected speech.  The
second part of Justice Schlesinger's analysis addressed whether the City's regulation was content
neutral and therefore a justifiable intrusion on the right of free speech.  Her opinion cited the
City's own affidavit in which the City attempted to justify the regulation indicating that some
citizens may find condom demonstrations in the park offensive, disruptive or annoying.  Justice
Schlesinger dismissed these arguments since other offensive acts such as displaying a swastika
or burning the American flag have been held to be protected speech under the First Amendment. 
Justice Schlesinger was very careful to limit her decision to these specific facts and
circumstances.  T.V.L.

Texas Appeals Court Rejects Manslaughter Charge in "AIDS" Murder Case

Being told that a person with whom one has just had sex is HIV+ is not such provocation as
to justify a manslaughter charge for the subsequent murder of the sexual partner, according to
the Court of Appeals of Texas in Dallas.  Chattmon v. State, 1996 WL 156914 (April 4). 
Johnny Chattmon and a friend went to a crackhouse inhabited by Kala Pierce and others to sell
them some cocaine.  During their visit to the crackhouse, Pierce performed oral sex on
Chattmon in exchange for some cocaine.  Afterwards, Jones, another resident of the house who
was jealous of Pierce, told Chattmon that Pierce had AIDS.  Although Pierce denied it,
Chattmon joined with others in beating her to death and then setting the house on fire with her
in it.  (A subsequent autopsy showed Pierce was not HIV-infected.)  At the murder trial,
Chattmon requested a manslaughter charged which was denied by the trial court.  He was
convicted of murder by the jury and sentenced to 75 years.  

"Here, appellant has not shown that Pierce or someone acting with Pierce directly provoked him. 
The uncontroverted evidence shows that Jones provoked appellant by telling him that Pierce had
AIDS.  Jones was not acting in concert with Pierce, who denied having AIDS.  Because there
is no evidence that Pierce or someone acting with her did anything to provoke sudden passion
in appellant, a jury could not have rationally found that appellant was guilty only of voluntary
manslaughter."  The court also overruled Chattmon's argument that the trial judge should have
excluded gruesome autopsy photos from evidence.  A.S.L.

AIDS Law & Society Notes

Carrying through on a promise by Congressional leaders, negotiators for the Congress and the
Administration included a repeal of the Dornan Amendment (Exclusion of HIV-Infected Persons
From Military Service) as part of the final agreement on the remaining 1996 federal budget
legislation, which was then passed by Congress on April 25.  However, Rep. Robert Dornan
(R.-Cal.), who chairs a subcommittee with jurisdiction over the Defense Department budget,
immediately introduced new legislation which won subcommittee approval the same day (April
25), reintroducing the discharge requirement as part of the 1997 Defense appropriations bill. 
Dornan attempted to make the new version more palatable by styling the discharges as "medical
retirements."  (At the same time, Dornan also introduced a provision to repeal the "Don't Ask,
Don't Tell" policy by mandating that the Defense Department inquire into the sexual orientation
of all incoming service members.  Dornan rejected claims that his action on the HIV discharge
was prompted by homophobia, arguing that the main target was military members who acquire
HIV at brothels, and that he was concerned about AIDS issues.  "I sat and watched my brother
die [from AIDS], so I'm not going to sit here and listen to you patronize me in that way,"
angrily exclaimed another member of the subcommittee, Rep. Mike Ward (D., Ky.), whose
brother Alex died in 1992, according to an Associated Press story published in several
newspapers on April 26.

Surprisingly, not a peep was heard from Congress during the statutory review period for a
needle exchange program bill enacted by the District of Columbia Council and signed by Mayor
Marion Barry on January 25. (Congress has 90 days to overrule a newly-passed local law in the
District.) The bill amended the District's Drug Paraphernalia Act to let community groups or
other qualified individuals to exchange clean syringes for used ones under a program run by the
Commissioner of Public Health, while protecting community groups from liability associated
with such a program.  Washington Blade, March 29.

The New Jersey Governor's Advisory Council on AIDS voted April 3 to recommend that New
Jersey allow needle exchange programs to operate in the state, even though Governor Christine
Todd Whitman has publicly opposed such programs.  The Council's chair, David W. Troast,
told the New York Times (April 4) that he was "initially opposed to needle exchange programs,
but was persuaded after visiting a similar program in the Bronx and by recent studies showing
that easier access to clean needles slows the spread of the virus that causes AIDS."  However,
a spokesperson for Governor Whitman reiterated her opposition despite the Council's
recommendation, stating that the Governor "feels that she has a much broader responsibility to
not only prevent AIDS, but to prevent Crime and promote public safety," adding that "Illegal
drug use is at odds with those goals." 

Responding to a letter from Lambda Legal Defense Fund threatening legal action, the Chicago
Board of Education has revised its policy requiring prospective teachers to disclose their HIV
status as part of their employment application. The challenged policy required applicants not
only to reveal their HIV status, but also how they were infected and what treatments they were
receiving.  Lambda noted that the Board's revised policy still contains objectionable features
concerning teachers with HIV and restrictions on HIV+ school children, which Lambda will
now proceed to address.  Barry Taylor, Lambda staff attorney in Chicago, is working on the
matter. Chicago Tribune, April 2. 

A coalition of AIDS service providers and community organizations in the Boston AIDS
Consortium filed a federal suit against Secretary of Health and Human Services Donna Shalala
and her department's Inspector General, June Gibbs Brown, objecting to the Inspector General's
insistence on obtaining names and social security numbers of individuals receiving financial
assistance for AIDS treatment through the Ryan White Care Act.  The defendants insisted that
receiving such information was necessary to audit proper administration of the Act, while the
plaintiffs claim that collecting such information threatens the confidentiality and privacy rights
of people with AIDS. Gay & Lesbian Advocates and Defenders is representing the plaintiffs. 

The Eugene & Agnes E. Meyer Foundation, started by a former owner of the Washington Post
and his wife, has awarded a $35,000 grant to Whitman-Walker Clinic in Washington, D.C., to
establish an impact litigation fund.  The fund will be used to support impact litigation on AIDS-
related legal issues.  Phil Fornaci is director of legal services at Whitman-Walker, which is the
main community based AIDS-services provider in the District of Columbia.  Washington Blade,
April 19. A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Baxter, Hugh, Bringing Foucault Into Law and Law Into Foucault, 48 Stanford L. Rev. 449
(January 1996) (review essay).

Bernstein, Fred, This Child Does Have Two Mothers. . . And a Sperm Donor, 22 N.Y.U. Rev.
L. & Soc. Change 1 (1996) (commentary on Thomas S. v. Robin Y., see Polikoff, below).

Bleifer, Craig B., Looking at Pornography Through Habermasian Lenses: Affirmative Action
for Speech, 22 N.Y.U. Rev. L. & Soc. Change 153 (1996).

Chapman, Anna, Sexuality and Workplace Oppression, 20 Melbourne U. L. Rev. 311
(December 1995).

Coombs, Mary, Comment: Between Women/Between Men: The Significance for Lesbianism of
Historical Understandings of Same-(Male)Sex Sexual Activities, 8 Yale J. L. & Humanities 241
(Winter 1996).

Fineman, Martha L.A., Masking Dependency: The Political Role of Family Rhetoric, 81 Va.
L. Rev. 2181 (November 1995).

Gardbaum, Stephen, Liberalism, Autonomy, and Moral Conflict, 48 Stanford L. Rev. 385
(January 1996).

Halley, Janet E., Introduction to Symposium: Intersections: Sexuality, Cultural Tradition, and
the Law, 8 Yale J. L. & Humanities 93 (Winter 1996).

Harris, Angela P., Comment: Seductions of Modern Culture, 8 Yale J. L. & Humanities 213
(Winter 1996)(Part of Symposium, see below).

Heinze, Eric, Gay and Poor, 38 Howard L.J. 433 (Spring 1995) (difficulties encountered by
poor gay people in the legal system).

Kestin, Hon. Howard H., The Bystander's Cause of Action for Emotional Injury: Reflections
on the Relational Eligibility Standard, 26 Seton Hall L. Rev. 512 (1996)(curiously, this article
does not explore the problem for same-sex couples, but does conclude that an appropriate
standard should not limit liability based on legal family relationships).

Kirby, Michael, The Impact of International Human Rights Norms: `A Law Undergoing
Evolution', 25 U. Western Australia L. Rev. 30 (July 1995).

Lim, Frederick B., Obscenity and Cyberspace: Community Standards in an On-Line World, 20
Columbia-VLA J. L. & the Arts 291 (Winter 1996).

Morris, Robert J., Configuring the Bo(u)nds of Marriage: The Implications of Hawaiian Culture
& Values for the Debate About Homogamy, 8 Yale J. L. & Humanities 105 (Winter 1996).

Polikoff, Nancy D., The Social Construction of Parenthood in One Planned Lesbian Family, 22
N.Y.U. Rev. L. & Soc. Change 203 (1996) (accompanied by Amicus Curiae brief in Thomas
S. v. Robin Y., principally authored by Polikoff).

Powell, Cedric Merlin, The Mythological Marketplace of Ideas: R.A.V., Mitchell, and Beyond,
12 Harv. Black Lett. L. J. 1 (Spring 1995).

Redish, Martin H., & Daryl I. Kessler, Government Subsidies and Free Expression, 80 Minn.
L. Rev. 543 (February 1996).

Rosenblum, Darren, Geographically Sexual?: Advancing Lesbian and Gay Interests Through
Proportional Representation, 31 Harv. Civ. Rts. - Civ. Lib. L. Rev. 119 (Winter 1996)
(argument inspired by lesbian/gay successes in 1993 NY City school board elections).

Shapiro, Julie, Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their
Children, 71 Indiana L. J. 623 (Summer 1996).

Valdes, Francisco, Unpacking Hetero-Patriarchy: Tracing the Conflation of Sex, Gender &
Sexual Orientation to Its Origins, 8 Yale J. L. & Humanities 161 (Winter 1996).

Vernon, Richard, John Stuart Mill and Pornography: Beyond the Harm Principle, 106 Ethics
621 (April 1996).

Weimer, Deborah, Implementation of Standby Guardianship: Respect for Family Autonomy, 100
Dickinson L. Rev. 65 (Fall 1995).

Student Notes & Comments: 

Baggett, Sandy D., Constitutional Law -- Suspect Class Status and Equal Access to the Political
Process Under the Equal Protection Clause of the Fourteenth Amendment -- Laws Precluding
Anti-Discrimination Legislation for Homosexuals, 63 Tenn. L. Rev. 239 (Fall 1995).

Burnett, William J., Wisconsin v. Mitchell: First Amendment Fast-Food Style, 4 Temple Pol.
& Civ. Rts. L. Rev. 385 (Spring 1995).

Conboy, Katherine L., Constitutional Law -- Are Private Decisions an Endangered Species?  St.
Patrick's Day Parade Deemed Nonexpressive and a Place of Public Accommodation -- Irish-
American Gay, Lesbian & Bisexual Group v. City of Boston, 418 Mass. 238, 636 N.E.2d 1293
(1994), rev'd, 115 S.Ct. 2338 (1995), 29 Suffolk U. L. Rev. 303 (Spring 1995).

DiBartolomeo, Lisa, Constitutional Law -- Subjective Awareness Governs the Deliberate
Indifference Standard in Cruel and Unusual Punishment Claims -- Farmer v. Brennan, 114 S.Ct.
1970 (1994), 29 Suffolk U. L. Rev. 294 (Spring 1995) (case of transsexual prisoner).

Goebel, Brian C., Who Decides If There is "Triumph in the Ultimate Agony?" Constitutional
Theory and the Emerging Right to Die With Dignity, 37 Wm. & Mary L. Rev. 827 (Winter
1996).

Kemp, James M., DeShaney and Its Progeny -- The Failure to Mandate that Public School
Officials Protect Our Tender Youth, 24 J. L. & Educ. 679 (Fall 1995).

Pearlman, Leslie, Transsexualism as Metaphor: The Collision of Sex and Gender, 43 Buffalo
L. Rev. 835 (Winter 1995).

Rowland, Kristin R., Amorphous Employment Discrimination Protection for Transsexuals: Doe
v. Boeing, 4 Temple Pol. & Civ. Rts. L. Rev. 367 (Spring 1995).

Sanabria, Jason D., Farmer v. Brennan: Do Prisoners Have Any Rights Left Under the Eighth
Amendment?, 16 Whittier L. Rev. 1113 (1995)(comment on Supreme Court decision concerning
cruel and unusual treatment of a transsexual prisoner).

Symposia:

Intersections: Sexuality, Cultural Tradition, and the Law, 8 Yale J. L. & Humanities No. 1
(Winter 1996).  Individual articles by Halley, Morris, Valdes, Harris, and Coombs noted above.

Specially Noted:

ACLU Lesbian & Gay Rights and AIDS Projects Director Matthew A. Coles has written a "do-
it-yourself guide to instituting lesbian and gay civil rights" titled Try This At Home!, published
by The New Press in its ACLU Handbook Series (ISBN 1-56584-309-6).  This compulsively
readable book brings together decades of Matt's experiences as an organizer, lobbyist, litigator
and community activist to provide systematic guidance to anyone interested in becoming a more
effective campaigner for lesbian and gay rights.  Lots of good, practical advice. . .  This one
should be a mandatory reading assignment for anyone aspiring to a leadership role in the
movement.

A book recounting the history of the litigation over inclusion of a gay and lesbian Irish-American
group in the Boston St. Patrick's Day parade has been published by Branden Publishing Co. 
Paul J. Walkowski and William M. Connolly, From Trial Court to the United States Supreme
Court: Anatomy of a Free Speech Case. (ISBN 0-8283-2021-8).  Co-author Connolly was
counsel for Hurley, head of the organization that runs Boston's parade and sought to exclude the
gay group, so you know what the slant of the book will be.  Exploiting the new commercial
availability of tapes of oral arguments from the Court, the publisher offers a special package deal
of the tape with the book.  Anyone inspired to purchase this effort can call the publisher at 617-
734-2045, or write to P.O. Box 843, 17 Station St., Brookline Village, MA 02147.  Our only
information about this comes from a publicity flyer, so we can't vouch for the quality of the
product.

AIDS & RELATED LEGAL ISSUES: 

Cooper, Scott, Duty to Warn vs. Right to Privacy: Victims vs. Patients -- A Physician's
Dilemma, 42 Med. Trial Tech. Q. 93 (1995).

Malkin, Ian, Tort Law's Role in Preventing Prisoners' Exposure to HIV Infection While in Her
Majesty's Custody, 20 Melbourne U. L. Rev. 423 (December 1995).

Schweikhart, Sharon B., Review of Managing Crisis and Change in Health Care: The
Organizational Response to HIV/AIDS, by Chris Bennett and Ewan Ferlie, 21 J. Health Politics,
Policy & Law 167 (Spring 1996).

Weimer, Deborah, Ethical and Legal Issues in AIDS Research, 17 J. Legal Med. 177 (March
1996) (book review essay).

Student Notes & Comments: 

Bailey, Patricia M., "Significant Risk" Concept Justifies Practice Restrictions of an HIV-Infected
Surgeon, 40 Villanova L. Rev. 687 (1995).

Dalrymple-Blackburn, Deborah, AIDS, Prisoners, and the Americans With Disabilities Act,
1995 Utah L. Rev. 839.

Fabbri, William O., Home HIV Testing and Conflicts with State HIV Testing Regulations, 21
Am. J. L. & Med. 419 (1995).

Ogden, Timothy A., Shifting Burdens and the Americans With Disabilities Act: Why McDonnell
Douglas Should Apply to the ADA, 29 Indiana L. Rev. 179 (1995).

Rubin, Alix R., HIV Positive, Employment Negative? HIV Discrimination Among Health Care
Workers in the United States and France, 17 Comparative Lab. L. J. 398 (Winter 1996).

Vanik, Richard K., Emotional Distress For Fear of Exposure to AIDS: An Infection Headed for
Texas, 32 Houston L. Rev. 1451 (1996).

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. A.S.L.