LESBIAN/GAY LAW NOTES
ISSN 8755-9021 June 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; Steven Kolodny, Esq., New York; Todd V. Lamb, Esq.,
New York; Robin Miller, Esq., Seattle; Michael Shay Ryan, Esq., New
York; Kees Waaldijk, Leiden, Netherlands; Dirk Williams, Esq.,
Boston;  Robert Wintemute, Esq., London. 

Circulation: Daniel Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC
10003. 212-353-9118; e-mail: le-gal@interport.net

LeGaL Homepage:http://www.interport.net:80/~le-gal
Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln
(C) 1996 by Lesbian & Gay Law Association of Greater New York    
$45/yr by subscription; Foreign Rate US$60   

AMENDMENT 2 HELD UNCONSTITUTIONAL

In a decision that a dissenting member asserted contradicts Bowers
v. Hardwick, the Supreme Court ruled 6-3 that Colorado's Amendment
2 violates the Equal Protection Clause of the 14th Amendment. 
Romer v. Evans, 1996 WL 262293 (May 20).  

In his decision for the Court, Justice Anthony Kennedy declared
that the state ballot initiative that repealed all laws or policies
protecting homosexuals or bisexuals from discrimination and
prohibited enactment of such policies failed to meet the usually
lenient rational basis test of judicial review.  Justice Antonin
Scalia's dissent, joined by Chief Justice William Rehnquist and
Justice Clarence Thomas, argued that the Hardwick precedent, which
went unmentioned in the Court's opinion, compelled the opposite
result.  Joining Kennedy's opinion were Justices John Paul Stevens,
Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg, and Stephen
Breyer.  (Justice O'Connor was part of the Court's majority in
Hardwick, while Justice Stevens had written one of the dissenting
opinions in that case.)  The decision was the first to attain a
majority of the Court in support of gay rights since Manual
Enterprises, Inc. v. Day, 370 U.S. 478 (1962), in which the Court
held that non-obscene gay-related matter could not be excluded from
the U.S. mails.

The Romer case began when Colorado voters approved Amendment 2 in
November, 1992.  A coalition of plaintiffs, including the three
cities whose sexual orientation discrimination laws were affected
and several lesbian and gay Coloradans, filed suit in Denver
District Court, obtaining a preliminary injunction that has kept
the measure from ever taking effect.  The case went to the Colorado
Supreme Court twice.  The first time, that court upheld preliminary
injunctive relief, adopting a theory that Amendment 2 violated a
fundamental right of equal participation in the political process
by posing special barriers to proponents of non-discrimination for
gays, lesbians and bisexuals.  The case was then remanded for
trial, after which both the district court and the state supreme
court found that the state had failed to meet its burden of
demonstrating that Amendment 2 was narrowly tailored to meet a
compelling state interest.  The U.S. Supreme Court granted the
state's petition for certiorari and heard oral argument on October
10, 1995.  Legal observers predicted based on the oral argument
that Amendment 2 would be overturned, but there was widespread
uncertainty about what theory the Court might use to do so, the
Colorado Supreme Court's theory having been widely criticized as
lacking a firm basis in constitutional precedents.

In the event, the Court's decision issued on May 20 expressly
disavowed reliance on the Colorado Supreme Court's political
participation theory, although several comments in Justice
Kennedy's opinion suggested that the Court may have been tacitly
embracing the main elements of that theory.  Introducing his
opinion, Kennedy quoted from the dissent in Plessy v. Ferguson, 163
U.S. 537 (1896), in which the Court had upheld racial segregation
in public accommodations over the dissenter's protest that the
Constitution "neither knows nor tolerates classes among citizens." 
Justice Kennedy's theme for the opinion was that Amendment 2
established classes of citizenship, relegating lesbians and gay men
to inferior status.  (Kennedy omitted mention of bisexuals
throughout the opinion, even though Amendment 2 explicitly mentions
them.  This omission drew speculative comment in the aftermath of
the opinion, but there is no evident explanation for the omission.) 
Coming full circle at the end of his opinion, Kennedy quoted a
similar comment from the Civil Rights Cases, 109 U.S. 3 (1883), in
which the Court had scornfully referred to "class legislation" as
being "obnoxious to the prohibitions of the Fourteenth Amendment."

After reciting the history of Amendment 2 and describing its
effect, as found by the Colorado Supreme Court, Kennedy immediately
focused on the constitutional objection to the measure: "Sweeping
and comprehensive is the change in legal status effected by this
law. . .  Homosexuals, by state decree, are put in a solitary class
with respect to transactions and relations in both the private and
governmental spheres.  The amendment withdraws from homosexuals,
but no others, specific legal protection from the injuries caused
by discrimination, and it forbids reinstatement of these laws and
policies."  Kennedy then described how the various states,
discerning the inadequacy of common law nondiscrimination
requirements imposed on operators of public accommodations, had
begun to enact laws specifying prohibited grounds for
discrimination, and extending the protection beyond public
accommodations to housing, employment, insurance, and other
transactions, noting that such laws went beyond the "suspect
classifications" of race and alienage identified in the Court's
Equal Protection jurisprudence.  Amendment 2 would exclude gays
from participation in this kind of statutory protection.  

In addition, Kennedy observed, Amendment 2 would repeal Colorado
Governor Romer's 1990 executive order banning discrimination by the
state, and similar policies that had been adopted in public
colleges and universities in the state.  Further, Kennedy noted the
controversial argument made to the Court that Amendment 2 might
even intrude into the enforcement of laws of general application. 
The Colorado courts had not found this to be so, and Kennedy
observed that it was unnecessary for the Supreme Court to reach the
question, because the depredations of civil rights of homosexuals
already described were sufficient to render the measure
unconstitutional.

In light of this history of the development of civil rights
protection in the U.S., Kennedy explicitly rejected the state's
argument that Amendment 2 "does no more than deny homosexuals
special rights." Kennedy found this argument "implausible,"
asserting: "To the contrary, the amendment imposes a special
disability upon those persons [i.e., homosexuals] alone. 
Homosexuals are forbidden the safeguards that others enjoy or may
seek without constraint.  They can obtain specific protection
against discrimination only by enlisting the citizenry of Colorado
to amend the state constitution or perhaps, on the State's view, by
trying to pass helpful laws of general applicability.  This is so
no matter how local or discrete the harm, no matter how public and
widespread the injury.  We find nothing special in the protections
Amendment 2 withholds.  These are protections taken for granted by
most people either because they already have them or do not need
them; these are protections against exclusion from an almost
limitless number of transactions and endeavors that constitute
ordinary civil life in a free society."

Having concluded that Amendment 2 raises an Equal Protection issue,
Kennedy turned to the appropriate standard of judicial review. 
Here the opinion took a surprising turn.  Kennedy insisted that
Amendment 2 would not yield to the established analytic method of
suspect classification or fundamental rights, asserting that it
"defies[] . . . this conventional inquiry."  This was a case, wrote
Kennedy, in which a challenged measure "lacks a rational
relationship to legitimate state interests."  Amendment 2 thus
joins that exclusive, small group of legislative measures to have
been invalidated on the basis of total irrationality, a result that
most commentators would have found unlikely in light of the Court's
1993 decision in Heller v. Doe, 113 S.Ct. 2637, in which the Court
had seemed to erect insurmountable barriers to constitutional
invalidation via Equal Protection of almost any measure that did
not implicate a fundamental right or a suspect classification.  

Kennedy premised this development on two factors: "First, the
amendment has the peculiar property of imposing a broad and
undifferentiated disability on a single named group, an exceptional
and, as we shall explain, invalid form of legislation.  Second, its
sheer breadth is so discontinuous with the reasons offered for it
that the amendment seems inexplicable by anything but animus toward
the class it affects; it lacks a rational relationship to
legitimate state interests."  In short, Kennedy found that the
proponents' interest in stigmatizing homosexuality was the
motivation for the measure, and the various "state interests"
articulated during the many stages of the litigation were mere
pretexts or makeweights.  

"It is not within our constitutional tradition to enact laws of
this sort," wrote Kennedy.  "Central both to the idea of the rule
of law and to our own Constitution's guarantee of equal protection
is the principle that government and each of its parts remain open
on impartial terms to all who seek its assistance. . .  A law
declaring that in general it shall be more difficult for one group
of citizens than for all others to seek aid from the government is
itself a denial of equal protection of the laws in the most literal
sense."  Is this not merely a restatement of the Colorado Supreme
Court's "equal participation in the political process" theory? 
Kennedy went on to assert that measures like Amendment 2 "raise the
inevitable inference that the disadvantage imposed is born of
animosity toward the class of persons affected," and quoted with
apparent approval from Justice William Brennan's opinion for the
Court in Department of Agriculture v. Moreno, 413 U.S. 528 (1973),
in which the Court had invalidated a provision of the food stamp
law that was intended to exclude hippie communes from qualifying
for the benefits of the law.

Concluding that Amendment 2 was not "directed to any identifiable
legitimate purpose or discrete objective," Kennedy stated: "It is
a status-based enactment divorced from any factual context from
which we could discern a relationship to legitimate state
interests; it is a classification of persons undertaken for its own
sake, something the Equal Protection Clause does not permit. . . 
We must conclude that Amendment 2 classifies homosexuals not to
further a proper legislative end but to make them unequal to
everyone else.  This Colorado cannot do.  A State cannot so deem a
class of persons a stranger to its laws.  Amendment 2 violates the
Equal Protection Clause, and the judgment of the Supreme Court of
Colorado is affirmed."

Kennedy's opinion was immediately criticized as deficient in
analysis, and not only by those who disagreed with its conclusion. 
The opinion never mentioned or attempted to deal with Bowers v.
Hardwick, and surprisingly so, in light of the frequent citation of
Hardwick by lower federal and state courts in rejecting Equal
Protection claims raised by gay litigants.  Furthermore, Kennedy
never really explained why the asserted state interests argued by
Colorado were deficient; he merely asserted their deficiency in
conclusorily.  Kennedy did offer an attempt to distinguish this
case from Heller v. Doe (in which he was in the majority of the
Court that had appeared to reject most rational basis challenges
under the Equal Protection Clause), but few found the attempt
satisfying.

The first, and most vehement, critic, was Justice Scalia, whose
dissenting opinion was dripping with scorn for the Court and the
challengers of Amendment 2.  "The Court has mistaken a Kulturkampf
for a fit of spite," he began, sending legal analysts to their
political science dictionaries for some clue to his ambiguous
meaning.  Scalia apparently comes at the issues raised by Amendment
2 with certain implicit premises not shared by the majority of the
Court.  One is that homosexuality is entirely a matter of
behavioral choice, so Scalia rejects Kennedy's description of
Amendment 2 as "status-based" legislation.  Another is that all
government enactments forbidding discrimination against particular
groups of people are, in essence, "special rights" laws, because in
the absence of such legislation, employers, landlords and others
are free to decide with whom they will associate and do business. 
And, finally and most importantly for Scalia, because the Court in
Hardwick held that the states may make "homosexual conduct" a
crime, any lesser state disparagement of or discrimination against
homosexuals could not credibly be said to raise a constitutional
issue.

In this last point, Scalia was stating a proposition that has
become commonplace among the federal courts of appeals dealing with
gay Equal Protection cases.  Beginning with the D.C. Circuit in
Padula v. Webster, 822 F.2d 97 (1987), and continuing through the
military cases in various circuits, the federal appeals courts have
cited Hardwick as the premise for denying any heightened scrutiny
for Equal Protection challenges to anti-gay policies, and have
generously deferred without much question to whatever arguments the
government has made in support of those policies.  (The main
exception, at least in part, has been the 9th Circuit, which may
well take encouragement in its on-going consideration of military
challenges from the Romer Court's willingness to cast a suspicious
eye on official justifications for anti-gay policies based on fear
or dislike of gay people.)  

Thus, to Scalia it is outrageous that the Court casts down
Amendment 2 without even confronting the effect of Hardwick.  "In
holding that homosexuality cannot be singled out for disfavorable
treatment," he wrote, "the Court contradicts a decision,
unchallenged here, pronounced only 10 years ago, see Bowers v.
Hardwick, 478 U.S. 186 (1986), and places the prestige of this
institution behind the proposition that opposition to homosexuality
is as reprehensible as racial or religious bias."  Well, thank-you
Justice Scalia for that carelessly broad overstatement.  (In a
footnote, he backtracks and observes that the Court has not in this
case designated sexual orientation a suspect classification, which
would have been the logical import of his fulmination in the main
text.)  

Scalia asserted, to the contrary, that having been among the first
states to decriminalize consensual sodomy in its adoption of the
Model Penal Code, Colorado could yet (without any imputation of ill
will toward homosexuals) legitimately wish to deter homosexual
conduct and enforce public morality by treating homosexuals with
disfavor or, at the least, excluding them from the "special
protection" of civil rights laws.  Ultimately, Scalia argued, a
facial constitutional challenge to Amendment 2 must fail in light
of Hardwick, because the logical implication of that case is that
Colorado may, at least, legitimately discriminate against persons
who engage in homosexual conduct, and such action would come within
the broad ambit of Amendment 2.  (Scalia argues by analogy that the
Court has never questioned the constitutionality of state
constitutional prohibits of polygamy, citing a 19th century case
that upheld a Utah territorial law depriving polygamists of all
civil rights, including the right to vote.)  

Scalia's extended diatribe is too long to describe here in further
detail, other than to note that it unfolds with apparent logic from
the premises described above.  At the end, Scalia concludes that
the Court's decision is political rather than legal, and charges
that it reflects the cultural views of the majority of the Court's
members, "reflecting the views and values of the lawyer class from
which the Court's Members are drawn."  Scalia notes that the
nation's law schools, through the Association of American Law
Schools, have voted to ban anti-gay discrimination in their
placement offices, and offers this up as evidence of the elitist
views of the legal profession which he asserts undergird the
Court's decision.  

"Today's opinion has no foundation in American constitutional law,"
insisted Scalia, "and barely pretends to."  Strong words indeed,
considering that an amicus brief written by Prof. Laurence Tribe of
Harvard and co-signed by several of the nation's leading
constitutional law scholars, urged the very approach taken by the
majority.  "The people of Colorado have adopted an entirely
reasonable provision which does not even disfavor homosexuals in
any substantive sense, but merely denies them preferential
treatment.  Amendment 2 is designed to prevent piecemeal
deterioration of the sexual morality favored by a majority of
Coloradans, and is not only an appropriate means to that legitimate
end, but a means that Americans have employed before.  Striking it
down is an act, not of judicial judgment, but of political will. 
I dissent."  

The decision drew widespread media coverage and comment, although
President Clinton, whose Justice Department refused to file an
amicus brief in the case, tersely described the opinion as
"appropriate."  Governor Romer of Colorado, who had opposed
Amendment 2 but then served as the defendant in the litigation (and
argued that the result of the initiative process should be
respected), voiced relief at the outcome and hope that the state
could unite in accepting the Court's ruling.  The Romer decision
cast immediate doubt on the 6th Circuit's 1995 decision upholding
a similar amendment passed in Cincinnati, Ohio, and seemed likely
as well to dictate the outcome in pending litigation challenging a
similar measure enacted in Alachua County, Florida.  The Supreme
Court was expected to announce its disposition of the Cincinnati
case, for which a certiorari petition was pending, by the first
week in June. A.S.L.

LESBIAN/GAY LEGAL NEWS 

Supreme Court Ducks Oklahoma Solicitation Case

The U.S. Supreme Court announced April 22 that it would not review
a decision by the Oklahoma Court of Criminal Appeals in Sawatzky v.
City of Oklahoma City, 906 P.2d 785 (Okla. Crim. App. 1995), cert.
denied, 116 S.Ct. 1544.  The Oklahoma court rejected a
constitutional challenge to a state law penalizing solicitation of
private acts of lewdness.  Kenneth Sawatzky was arrested in a
public park when he solicited a police officer to go with him to a
hotel to have oral sex.  Sawatzky argued that the law, which
exempted married couples from its prohibition, violated equal
protection and also constituted an establishment of religion.  The
state appeals court rejected both arguments.  A.S.L.

Mass. High Court Notes Problem of Biased Jurors

While unanimously vacating the conviction of Thomas Plunkett for
the murder of Louis Souza, a gay man, the Massachusetts Supreme
Judicial Court warned the state's trial judges to be alert to the
problem of juror bias in cases involving gay victims.  Commonwealth
v. Plunkett, 1996 WL 251981 (May 13).  Based on the court's summary
of the evidence at trial, it appears that Souza died as a result of
suffocation when a gag tied around his head became soaked with
saliva about an hour after it was tied.  Plunkett gave a statement
to police that he had gone to Souza's apartment to commit a
robbery, Souza made sexual advances to him, and he "offered to tie
the victim up if it would make him feel better."  Plunkett tied
Souza's hands behind his back and put a towel over Souza's face and
tied it behind his head, then left.  Plunkett told police that
Souza kept talking after the towel was tied around his head, trying
to persuade Plunkett to stay, but Plunkett left.  The jury
convicted Plunkett of murder, after being charged on alternate
theories of first degree murder and felony-murder.  The jury also
convicted Plunkett of unarmed robbery.

On appeal, the court, in an opinion by Justice Wilkins, reversed
because it found that the evidence would not support a conviction
of premeditated first degree murder, although it would support a
conviction of felony-murder.  Justice Wilkins explained that the
evidence would not "warrant an inference that the defendant
intended to kill."  Because it could not be determined which theory
the jury relied upon in reaching its verdict, the case would have
to be remanded for a new trial on the murder charge.

Toward the end of the opinion, the court discusses a variety of
issues that might be raised at retrial.  Wilkins pointed out that
the trial judge had posed general questions to the jury pool
intended to uncover whether any potential jurors would have
particular problems in judging the case fairly: "After telling the
venire that the evidence might indicate that the victim was a
homosexual or bisexual, the judge inquired: `[I]s there anything
about that circumstance which would interfere with anyone's ability
to be fair and impartial?' and `is there anything about that
circumstance that would bias or prejudice anyone against either the
prosecution or the defense?'"  This general question elicited
responses from 8 potential jurors, one of whom said they would be
biased because "I have two homosexual sons," but the remainder all
expressing degrees of bias against gays.  "The subject of juror
attitudes toward homosexuality may be important in a case such as
this," commented Wilkins, noting that "the majority reaction was to
express a bias against homosexuals," and suggesting that "the
subject requires careful attention."  However, the court was "not
prepared to mandate an individual voir dire in the circumstances of
this case."  Wilkins gives no explanation for this last statement. 
A.S.L.

7th Circuit Again Considers Dee Farmer's Case Against Prison
Officials

In Farmer v. Brennan, 1996 WL 202515 (7th Cir. April 26), the
Seventh Circuit, for a second time, revisited the case of Dee
Farmer, a transsexual, who has been a federal prison inmate since
1986 as a result of a credit card fraud conviction.  This time the
court vacated the grant of summary judgment to defendants because
the district court too hastily decided that motion. Farmer brought
Eighth Amendment claims against several federal prison officials
because they transferred her to a U.S. penitentiary in Terre Haute,
Indiana. She claimed that prison officials knew that because of her
transsexualism and Terre Haute's violent environment she would be
in danger. She claimed that less than a month after the transfer,
she was beaten and raped by another inmate. 

When the defendants first moved for summary judgment, Farmer
responded with a Rule 56 motion to compel responses to a document
request. The district court granted summary judgment, ruling that
the responses would not help resolve the motion because they would
be untimely. The Seventh Circuit affirmed. 

The Supreme Court vacated that decision and remanded for further
proceedings. That decision was reported here earlier. The Supreme
Court took the opportunity to explain that for a prison official to
be found deliberately indifferent to inhumane prison conditions,
the official must have "acted or failed to act despite his
knowledge of a substantial risk of serious harm."  Believing that
the district court may have placed too much weight on Farmer's
failure to notify the officials of the risk of harm, it remanded.
The Supreme Court left discovery decisions up to the district
court. 

Two weeks after the district court received the remand, it required
the submission of summary judgment motions and set the trial for
six weeks later. The defendants met that summary judgment deadline.
The court denied several motions by Farmer for continuances to
conduct discovery and it denied her lawyer's motion for the
appointment of new counsel, who felt unable to manage the case as
a solo practitioner. Eventually, the district court granted a very
narrow portion of Farmer's Rule 56 document request. It then
slightly extended the schedule. Within three months of the remand,
the district court granted defendants summary judgment. It
criticized Farmer for failing to respond to defendants' motion.

The 7th Circuit noted that the "key problem [was] the court's
refusal to allow Farmer's lawyer to develop the record on the
defendants' motion." After conducting an extended analysis of
circuit decisions which found that district courts had abused their
discretion in granting summary judgment before discovery was
completed, the court concluded "that the district court abused its
discretion when it denied all efforts by Farmer's new lawyer to
obtain enough time to formulate . . . discovery requests that were
properly tailored to the Eighth Amendment standards established in
the Supreme Court's decision." The 7th Circuit criticized the
district court for permitting defendants to essentially ignore
Farmer's original document request. Indeed, the court's failure
resulted, under the Bureau of Prisons document retention policy, in
the destruction of the evidence Farmer sought. The court also noted
that if the district court wanted the solo practitioner to remain
in the case then it should have "provided enough time for a
meaningful exploration of the issues that the Supreme Court
remanded."  M.S.R.

Fifth Circuit Panel Reaffirms Precedent on Same-Sex Harassment

A 3-judge panel of the U.S. Court of Appeals for the 5th Circuit
has reaffirmed that Circuit's refusal to allow same-sex harassment
claims under Title VII of the Civil Rights Act of 1964.  In Oncale
v. Sundowner Offshore Services, Inc., 1996 WL 223627 (May 20), the
court affirmed the district court's decision to dismiss Joseph
Oncale's complaint, holding it was bound by a prior 3-judge panel's
decision in Garcia v. Elf-Atochem North America, 28 F.3d 446
(1994).

The facts as succinctly summarized by Circuit Judge Duhe were as
follows: "Joseph Oncale was employed by Sundowner on an offshore
rig from August to November 1991.  Oncale filed this Title VII
action against Sundowner, John Lyons, his Sundowner supervisor, and
Danny Pippen and Brandon Johnson, two Sundowner co-workers,
alleging sexual harassment.  Oncale alleges that the harassment
included Pippen and Johnson restraining him while Lyons placed his
penis on Oncale's neck, on one occasion, and on Oncale's arm, on
another occasion; threats of homosexual rape by Lyons and Pippen; 
and the use of force by Lyons to push a bar of soap into Oncale's
anus while Pippen restrained Oncale as he was showering on
Sundowner premises.  Oncale alleges both quid pro quo and hostile
work environment sexual harassment. Oncale quit his job at
Sundowner soon after the shower incident."

Without making any comment on these facts or venturing any opinion
whether the conduct in question should be found to violate Title
VII, Duhe turned directly to that case
on other grounds, and that the Garcia statements on this question
were dicta.  Duhe determined that the disputed language in Garcia
constituted an alternative holding, rather than dicta.  While
noting that several district courts outside the Circuit had
specifically rejected the reasoning of Garcia and that several
other circuit courts had questioned its rationale, Duhe insisted
that there was as yet no circuit split on the issue, since the
comments in the opinions from other circuits were themselves just
dicta.  Judge Duhe noted that the 5th Circuit has a well-
established rule requiring subsequent panels to treat decisions by
prior panels as binding precedent, even where the prior decision
premised its outcome on alternative theories, until such time as an
en banc panel might consider the issue or the Supreme Court might
adopt a different interpretation of the statute.  Without coming
right out and saying it, Duhe seemed to be inviting Oncale to
petition for en banc reconsideration.  * * *  In McDonnell v.
Cisneros, 1996 WL 266561 (7th Cir., May 20), an opinion by Chief
Judge Richard Posner, there are additional dicta that might be
cited by litigants to show disagreement by another circuit with the
Garcia precedent.  The case involves two HUD employees who claimed
that an investigation into anonymous complaints about their alleged
heterosexual relationship constituted sexual harassment of them. 
While dismissing their sexual harassment action, Posner ruminates
a bit about sexual harassment doctrine.  Nothing direct, but there
are implications that he would find same-sex harassment actionable
under Title VII in some circumstances.  A.S.L.

Texas Appeals Court: Victim's Homosexuality Irrelevant to
Sentencing Decision in Murder Case

Rejecting an appeal of a death sentence for the murder of a gay
man, the judges of the Court of Criminal Appeals of Texas
decisively rejected the defendant's contention that the trial court
erred by barring him from introducing evidence that his murder
victim was gay.  Goff v. State, 1996 WL 269199 (May 22).  David Lee
Goff was convicted of deliberately murdering the victim while
stealing his van.  At trial, Goff sought to have evidence of the
victim's homosexuality admitted.  There was no indication that Goff
was aware of the victim's homosexuality prior to having committed
the murder, and the victim's homosexuality apparently had nothing
to do with the crime.

Nonetheless, Goff argued that the trial court's action deprived him
of his right to present a defense, and in a separate point of error
also argued that failure to admit the evidence had tainted the
sentencing phase.  The court rejected both arguments, reserving
most of its comment for the second point of error.  As
characterized by Judge Meyers in the court's opinion, "Appellant's
contention is premised on the assumption that the jury would
consider a homosexual a less valuable member of society, therefore,
because appellant killed a person of little value, he did not
deserve the death penalty."  Meyers rejected this contention,
pointing out the total lack of relevance of the victim's
homosexuality to the commission of the crime, and observed that the
focus at sentencing was on the defendant's moral culpability, not
any judgment as to the moral worth of the victim.  
Several members of the court were moved to file separate opinions
denouncing the defendant's attempt to use the victim's sexual
orientation as a mitigating factor at sentencing.  Judge Baird
wrote, "I categorically reject appellant's argument that
homosexuals are less valuable members of society and, therefore,
appellant is less deathworthy for taking a homosexual's life. 
Appellant's argument ignores the fact that every member of our
society has the unalienable right to not be victimized by criminal
conduct."  Judge Overstreet commented, "I also must state that I
strongly believe that the character of the victim (victim character
evidence), good or bad, is never admissible for the purpose of
placing some sort of value (positive or negative) on the life of
the victim."  And Judge Mansfield said, "[I]t is my opinion that
the sexual preference of the victim in a capital murder trial is
irrelevant and thus inadmissible if, at the time of the commission
of the offense, the defendant did not know the sexual preference of
the victim.  The victim's sexual preference would only be relevant,
and admissible as such, if it is shown by the defendant, at the
guilt-innocence phase, that the victim's sexual preference was a
significant factor in his defense.  Such a determination should be
made by the trial court outside the presence of the jury."

The court did not discuss the potential relevance of the victim's
sexual preference to a determination whether the defendant should
be subjected to enhanced penalties for a hate crime, presumably
because Texas laws do not authorize such enhancement for anti-gay
violence.  A.S.L.

NY Appellate Court Upholds Damages for Anti-Gay Housing
Discrimination

The New York Appellate Division, First Department, rejected a
challenge to the award of $100,000 damages for mental anguish to an
HIV+ gay man who was subjected to severe harassment by his
landlord.  However, the court reduced a civil fine levied by the
New York City Human Rights Commission from $75,000 to $25,000. 
Matter of the Application of 119-121 East 97th Street Corp. v. New
York City Commission on Human Rights and Edward L. Baca, 1996 WL
251923 (May 14).

Edward Baca complained to the NY City Human Rights Commission that
he had been subjected to harassment by his landlord after she
discovered that he was a gay man with HIV.  The harassment went
beyond mere name-calling to include sending a malicious letter to
Baca's employer, posting copies of his complaint around the
building where neighbors would see it, leaving threatening messages
on his answering machine, and requesting the building
superintendent to tamper with Baca's locks, mail and electrical
service.  The Human Rights Commission awarded Baca $100,000 in
damages for mental anguished and levied a $75,000 fine against the
landlord.  (The city's human rights ordinance authorizes fines of
up to $100,000 to vindicate the public interest.)

Writing for the court, Justice Nardelli found that the facts
adduced at the administrative hearing "lead to the inescapable
conclusion that there was `sufficient evidence'" to support the
Commission's determination, and found that the Commission did have
authority to award substantial damages for mental anguish,
rejecting the landlord's argument that damages could not be awarded
for intangible injuries.  "Decency and justice call out for redress
to this respondent," wrote Nardelli.  "The award herein will not
only compensate complainant for the mental distress he suffered but
will also serve as a deterrent to others who might emulate
petitioners' actions.  An agenda of spite, malice and bias, acted
upon over an extended period of time, resulting in the severe
emotional and mental abuse of a tenant, seriously ill with AIDS,
will not be met with half-hearted sanctions or `slaps on the
wrist', and we concur in the award for mental anguish."

However, the court found that "different standards" should be used
to evaluate the civil fine.  Finding that the damage award to Baca
was sufficient for deterrent effect, the court held that a
"proportionality" standard should govern the amount of the civil
fine.  Since the landlord was a first offender and a small
business, and the landlord's actions harmed an individual plaintiff
more than the public generally, and the ordinance fixed a maximum
fine for the most serious cases implicating the public interest of
$100,000, the court found a fine of $75,000 in this case to be
disproportionately large and reduced it to $25,000.  * * *  In an
unpublished decision issued March 21, N.Y. Queens County Housing
Court Judge James R. Grayshaw denied a petition by landlord Anna
Lauretano to reclaim an apartment occupied by Bonnie Blue Stewart,
a lesbian.  Grayshaw found that Lauretano's attempt to reclaim the
apartment from Stewart, a 15-year-tenant, for Lauretano's
daughter's use, was pretextual.  Lauretano actually wanted to evict
Stewart because she had discovered that Stewart was a lesbian. 
Such motivation is unlawful under the N.Y.C. Human Rights
Ordinance.  Stewart was represented by attorney David Elliott.
Lauretano v. Stewart, L&T 93986/95 (N.Y.C. Civ. Ct., Queens
County).  A.S.L.

Oregon Appeals Court Vindicates Right of Voter to Wear Pro-Gay
Button at the Polling Place

Voters in Oregon can dust off their political buttons: the Oregon
Court of Appeals has held that a statute prohibiting political
buttons in polling places is unconstitutional.  Picray v. Secretary
of State, 140 Or. App. 592, 1996 W.L. 223328 (May 1).  David Picray
was barred from voting and fined when he attempted to vote while
wearing two buttons opposing the 1992 anti-gay ballot initiative. 
The state fined Picray pursuant to a statute prohibiting the
wearing of political badges, buttons and insignia in polling
places.  The court held that the statute was not authorized by the
state constitution's free election provisions.  While the
constitution sough to protect voters from coercive influences, the
"mere passive display of a political button in a polling place" did
not amount to improper conduct, and thus was not authorized by the
state constitution's free election clause.  Because the court found
the statute unconstitutional under the free election clause, it
avoided having to harmonize the potential conflict between that
clause and the free speech clause.  The court also rejected the
state's argument that it was justified in enforcing the statute
based on the state's "incompatibility" doctrine, stating that that
doctrine allowed speech restrictions only on public servants when
their speech was incompatible with their official function, and
refusing to extend the doctrine to cover citizens in polling
places.  Justice De Muniz, dissenting, felt the majority had
usurped the role of the legislature and would have found the
statute constitutional.  D.W. 

Testimony on Past Sexual History of Plaintiff Barred in Personal
Injury Suit

The question before the Vermont Supreme Court in Everett v. Town of
Bristol, 1966 WL 204234 (April 29), was whether the trial court
erred in allowing defendant's psychiatric expert testimony, and
permitting the use of unfairly prejudicial personal history to
attack the plaintiff's credibility and character on cross
examination.  In a routine slip and fall case, the testimony
introduced related to allegations of an alleged lesbian
relationship with superior officer while the plaintiff was in the
army; that she had received certain medical benefits relating to a
pelvic inflammatory disease while serving in the military: that she
was discharged from the miliary as being unsuitable; that her first
husband was an Italian criminal who beat her (ultimately causing a
miscarriage) and who, following their return to the United States,
ultimately murdered her mother; and that her second husband was a
"swinger and bisexual" who liberally prescribed drugs for her to
which she became addicted; that this second husband ran off with
her best friend; and that she is now married for the third time. 
Some of these events occurred more than thirty years before the
events at issue in the law suit.  The jury returned a defendant's
verdict, and the plaintiff appealed.  Not surprisingly, the Vermont
Supreme Court reversed and remanded.

The plaintiff, Constance Everett, slipped on the front steps of the
Bristol Town Hall in June 1989, injuring her ankle.  Her suit
against the Town alleged negligent maintenance of the steps.  The
Town maintained that there was no defect in the maintenance of the
steps, and that Everett's injuries stemmed from other causes.  The
Town's psychiatric expert was permitted to testify that the horrors
of Everett's personal life were the real cause of her pain; that
this fall "created an opportunity to express her anger and sadness
through her body."  The Supreme Court disagreed with Everett's
contention that the testimony should not have been introduced
because the expert could not testify to a reasonable degree of
medical certainty.  But the Supreme Court decided that the trial
court abused its discretion by admitting otherwise inadmissible
testimony as the basis for the expert's opinion.  In this case,
court found that the probative value of the evidence of Everett's
sexual history was far outweighed by prejudice to the Plaintiff.

The court rejected out of hand the Defendant's contention that the
admission of the psychiatric testimony was harmless error because
the expert's testimony went only to damages and the jury never
reached this issue.  The court found that expert testified as to
the cause of the injury.  The defense argued that the expert's
testimony was relevant as to credibility, and argued in closing
that the central issue in the case was "credibility, credibility,
credibility." Finally, the court rejected the admission of the
facts concerning  the receipt of medical benefits because the
defense could not prove any relevance at all. S.K.

NY Court Denies Tenant Succession Claim by Gay Survivor

In a rare case denying a tenant succession claim by the gay
survivor of a rent-stabilized tenant, a panel of the New York
Appellate Term in Manhattan ruled in 390 West End Associates v.
Wildfoerster, published in the NY Law Journal on May 30, that the
surviving partner had not met his burden to show that he was a
family member of the deceased tenant.

Frederick Wildfoerster and Joseph Wishy had a relationship of more
than twenty years, and a doorman at the building testified that he
knew Wildfoerster more than ten years and that Wildfoerster had
moved into the building in 1991.  Three other non-party witnesses
testified to the closeness of the relationship between the two men,
which included joint travel, birthday parties, hosting dinners for
friends together, and the like. Wildfoerster "cared for Mr. Wishy
as a family member would during his last illness," according to
dissenting Justice Helen Freedman.  But what impressed the trial
court, evidently, was that although Wildfoerster was totally
dependent on Wishy financially, Wishy never made a will leaving
assets to Wildfoerster and never made Wildfoerster the beneficiary
of any insurance policy.  Since Wishy died intestate, all his
assets went to a brother with whom Wishy had no communication for
many years.  This persuaded the trial judge that the men were not
members of each other's family, and a majority of the Appellate
Term panel affirmed on that basis.

In her dissent, Justice Freedman emphasized that the language
introducing the list of factors to be considered in determining
tenant succession questions states that "no single factor shall be
solely determinative," and that in fact Wildfoerster satisfied most
of the factors on the list, falling short only in the areas of
financial intermingling and formal legal documents.  A business
associate of Wishy testified that Wishy was in denial about his
illness and impending death, which is why he did not make a will. 
Freedman insisted that the relationship "viewed as a whole," as
required by the Code, would apparently qualify for succession
rights.  But the other judges on the panel, Stanley Parness and
William McCooe, apparently were not persuaded, although there terse
opinion gives little explanation for the result and fails to
address the points raised by Justice Freedman. A.S.L.

Connecticut Judge Grants Second-Parent Adoption

The Connecticut Law Tribune reported May 20 that Norwich Superior
Court Judge Hadley W. Austin ruled that the Probate Court should
allow Malinda, the domestic partner of Anne, to adopt "Baby Z," a
child born to Anne through alternative insemination in the context
of her relationship with Malinda, whom the child calls "Mommy." In
re Baby Z.  Rejecting the Probate Court's ruling that the adoption
was not authorized under Connecticut law, Austin directed the
Probate Court to refer the case to the Adoption Review Board for a
waiver to let the adoption proceed.  Finding that the adoption was
in the best interest of "Baby Z," Austin directed that the Probate
Court, upon receiving the waiver, grant the adoption.  Austin's
solution to the problems posed by Connecticut's typically worded
adoption statute is to have the Adoption Board wave the requirement
that Baby Z's parent relinquish parental rights, and then allow
Malinda to adopt under a broad interpretation of the step-parent
adoption provisions.  "Traditional models of the nuclear family
have come, in recent years, to be replaced by various
configurations of parent, stepparents, adoptive parents and
grandparents," wrote Austin, quoting from a prior Connecticut
appellate ruling.  "We are not prepared to assume that the welfare
of children is best Finds Actionable Defamation in False Imputation of
Lesbianism

Ruling in Stokes v. Meimaris, 1996 WL 239866 (May 9), the Ohio
Court of Appeals, 8th District, upheld a damage award for
defamation based on allegations that James Meimaris, in the course
of a child custody dispute with his ex-wife Sandra Stokes, had told
a police officer and others that Sandra was a lesbian and the lover
of Salvation Army Major Jean Manhollan, a close friend of hers. 
The allegations arose out of a dispute over custody of their
daughter, Jennifer, a learning disabled 18-year-old, who Meimaris
"kidnapped" from her school and took to his home.  As a result of
Meimaris's statements, the Salvation Army instituted an
investigation of the relationship between Manhollan and Stokes, and
Stokes subsequently lost her job as a college professor (although
it appeared that this may have been due to a reduction in force at
the college).  The jury awarded $25,000 for defamation.  (There
were other claims in the litigation which are not discussed here.) 


On appeal, Meimaris claimed that an imputation of homosexuality was
not defamation per se, and thus Stokes should receive no damages
because she had failed to prove any actual injury.  Without
directly addressing the question whether this would qualify as a
per se case, the court found, in an opinion by Judge Porter, that
Stokes had adequately alleged injuries, finding that intangible
injuries of embarrassment and being subjected to investigation were
sufficient.  Porter noted that "plaintiff testified without
objection that she suffered humiliation and embarrassment among her
colleagues in a small college town.  Although other witnesses
testified that they were not aware of the lesbian allegations nor
did they think less of her, the evidence presented a jury issue. 
Once a prima facie defamation case was made by the plaintiff, then
the amount of damages is a jury issue."  The award was affirmed. 
A.S.L.

Gay Armenian From Russia Wins U.S. Asylum

The Los Angeles Times reported May 24 that Sergey Fedetov, a gay
Armenian from Russia who fled to the U.S. after being frequently
detained, beaten and blackmailed by police in Russia, was granted
asylum on May 10 before Immigration Judge Rose Peters.  He had been
held at the Terminal Island detention center since his apprehension
by INS agents after crossing the border from Mexico in December
1995.  He contacted the Los Angeles Gay & Lesbian Community Center
after finding their listing in a phone directory, and they helped
him find volunteer lawyers, Cheryl Gertler and John Craig. 
Although the INS now treats as a precedent a prior published
decision that gays constitute a distinct social group for purposes
of asylum law, each case also requires findings of repression in
the home country and a reasonable fear of persecution by the
individual asylum applicant.  Some applicants from Russia have been
turned down and appeals are pending. Fedetov is the first gay
Russian to be granted asylum, according to a press release by the
LA Community Center.  Fedetov's own account of his experiences in
Russia proved persuasive to Judge Peters in this case.  A.S.L.

St. Louis Judge Finds Lesbian Co-Parent to Be "Equitable Parent"

St. Louis, Missouri, Family Court Judge Thomas J. Frawley ruled on
May 7 that a lesbian who had taken care of her former lover's child
from birth is an "equitable parent" who should be able to help
raise the child, even though the relationship with the child's
birth mother has ended.  A.L. v. Y.R.  This was an extraordinary
ruling, considering the historical animosity of appellate courts in
Missouri toward lesbian and gay parents in custody and visitation
disputes.  According to a news report in the St. Louis Post
Dispatch (May 9), A.L., the former partner of the birth mother,
sought full legal custody of the child.  Y.R.'s attorney, relying
on those negative Missouri precedents, argued that A.L.'s sexual
orientation made her "unfit," but Judge Frawley held that since
Y.R. was also a lesbian, sexual orientation no longer became a
factor in deciding between the contending women.  

Frawley said that his decision took a "functional approach" to
defining family.  In his unpublished order, Frawley wrote: "Courts
must seek to resolve custody and visitation disputes in a way which
minimizes the detriment a child suffers when his emotional bonds do
not conform to traditional family norms.  Courts must be ever
cognizant of the child's need for stability in his life and
continuity in his personal relationships and never underestimate
his ability to manage multiple parenting relationships."  The
concept of an "equitable parent" was borrowed from precedents in
other states.  Frawley defined such an individual as a person who
"provides for the physical, emotional and social needs" of the
child and whose relationship "began with the consent of the child's
legal parent."

While praising Frawley's decision to allow her client a continuing
role in the child's life, A.L.'s attorney, Leigh Joy Carson, said
she would renew her attempt to get legal and physical custody of
the child assigned to her client, arguing that A.L. was the
superior person for that role.  A.S.L.

Landmark Transsexual Rights Decision Under European Community Law

On April 30, the European Court of Justice in Luxembourg (not the
European Court of Human Rights in Strasbourg) effectively banned
employment discrimination against transsexual persons in 15
European Union countries. The court held in P. v. S. and Cornwall
County Council, Case C-13/94, that Article 5(1) of the European
Community Equal Treatment Directive (76/207/EEC, 9 Feb. 1976),
which prohibits "discrimination on grounds of sex" in relation to
dismissal, "precludes dismissal of a transsexual for a reason
related to a gender reassignment." (The significance of the
decision can best be appreciated by imagining a similar
interpretation of Title VII by the U.S. Supreme Court.) The case
was brought by a male-to-female transsexual person who was
dismissed by her employer after disclosing her intention to undergo
gender reassignment. An Industrial Tribunal in Truro, England
referred the case to the European Court of Justice.     

By common law standards, the Court's explanation of why
discrimination against a transsexual person is sex discrimination
is amazingly terse. "[T]he scope of the directive cannot be
confined simply to discrimination based on the fact that a person
is of one or other sex . . . [it] is also such as to apply to
discrimination arising . . . from the gender reassignment of the
person concerned. Such discrimination is based, essentially if not
exclusively, on the sex of the person concerned. Where a person is
dismissed on the ground that he or she intends to undergo, or has
undergone, gender reassignment, he or she is treated unfavorably by
comparison with persons of the sex to which he or she was deemed to
belong before undergoing gender reassignment."     

The decision in P. greatly improves the chances of the argument
that the Equal Treatment Directive also prohibits employment
discrimination against gay, lesbian and bisexual persons,
especially by making it clear that the "original intent" of E.C.
Member States in 1976 as to specific applications of the principle
in the Directive is not relevant.  The first case to test this
argument will not be the first U.K. "gays in the armed forces"
case, R. v. Ministry of Defence ex parte Smith, [1996] 1 All E.R.
257 (Ct. App.) (see 1995 LGLN 162), which moved to the European
Commission of Human Rights after the House of Lords denied leave to
appeal on March 19. But a second case challenging the armed forces'
ban may be brought, and could be referred to the European Court of
Justice.  An amendment to the Armed Forces Bill that would have
lifted the ban was defeated in the House of Commons (by 188-120) on
May 9.  R.W.

Domestic Partnership & Marriage Notes

H.R. 3396, a bill intended to minimize any effect of a gay rights
victory in the Hawaii marriage litigation outside of Hawaii, was
introduced in the House of Representatives on May 8 by Rep. Bob
Barr (R-Ga.), and a companion bill was introduced in the Senate by
Se. Don Nickles (R.-Ok.).  The bill would deny Federal recognition
of same-sex marriages, wherever performed, and would rely on
Congress's express power under the Constitution's full faith and
credit clause to "prescribe" the "effect" of that clause to enact
that states would not be required to give any effect to same-sex
marriages performed in other states.  As described by Sen. Nickles
at the bill's introduction, the purpose is not to stop any state
from recognizing same-sex marriages if it wants to do so, but
rather to free the states from having to recognize same-sex
marriages performed in other states as a matter of constitutional
law.  State legislation expressly restricting marriages to
opposite-sex partners and declaring that same-sex marriages
performed out of state would not be recognize by the courts of the
state has recently been enacted in Alaska (became law without
Governor Knowles's signature on May 6), Arizona, Georgia, Idaho,
Illinois (signed by Gov. Edgar on May 24), Kansas, Oklahoma, South
Carolina (signed by Gov. Beasley on May 20), South Dakota,
Tennessee and Utah, with similar measures pending in several other
states, including New York.  New York Times, May 9.  On May 17, the
Missouri legislature passed a similar bill, which Gov. Mel Carnahan
has indicated he is likely to sign.  On May 22, President Clinton
indicated that in line with his frequently stated opposition to
same-sex marriage, he would sign the proposed legislation if it
passed in the form that it was introduced.  Clinton was widely seen
to have taken this position so early in the game to avoid having
same-sex marriage become a "wedge issue" in the presidential
campaign.  On May 26, the New York Times published an op-ed article
by Harvard Professor Laurence Tribe, arguing that the bills were
unconstitutional violations of the 10th amendment and the Full
Faith & Credit Clause of the Constitution.

In last minute maneuvering as the state's legislative session came
to an end for this year, restive Hawaii senators opposed to same-
sex marriage prevailed on the Senate leadership to allow a floor-
vote on a proposal to place a question on the ballot in November to
allow the state's voters to overturn the Hawaii Supreme Court's
Baehr decision.  However, the Senate voted down the measure, 15-10. 
The latest word is that the Baehr trial has been postponed yet
again to September.  

San Francisco City Supervisor Tom Ammiano has introduced a measure
that would require city contractors to provide health care and
retirement benefits to domestic parlish a registry for domestic partners.  Although the council
did not vote to extend any benefits or particular legal status to
registered partners, private employers might use registered status
as a way of determining eligibility for voluntarily establior Zaremba to provide
services as a business and personal consultant.  Zaremba also seeks
torts damages for possible exposure to HIV; while he is not HIV+
and does not claim that Cliburn is, Zaremba alleges that Cliburn
had sex with other men during their relationship, thus potentially
exposing Zaremba to the virus.  

Seeking to forestall an Alaska Supreme Court ruling that could
require the University of Alaska and other state agencies to
provide domestic partner benefits to their employees, the state
legislature passed and the governor signed H.B. 226, which creates
an exception to the marital status discrimination provisions in the
state's human rights law, allowing public employers to provide
greater benefits to married employees than to unmarried employees
with domestic partners.  The new law is intended to moot Tumeo &
Wattum v. University of Alaska, 1995 WL 238359, in which Alaska
Superior Court Judge Mary Greene ruled in January 1995 that the
University was violating the law by refusing to extend benefits to
domestic partners.

The West Hollywood, California, City Council voted May 20 to
recognize both gay and nongay domestic partnerships registered in
other cities.  A second vote is required for the measure to take
effect.  This appears to be a symbolic response to the wave of
legislation across the nation barring recognition of out-of-state
same-sex marriages.

Hewlett-Packard Corporation has announced that it will extend
eligibility for health care benefits to domestic partners of its
employees effective in 1997.  The delay in implementation is
because the company has made the decision in principle to go ahead,
but still has to work out the details.  In reporting the company's
announcement, the San Jose Mercury News (May 24) noted that H-P
will become the biggest Silicon Valley high-tech employer to offer
such benefits, will are already offered by most employers in that
industry. 
 
New Jersey Superior Court Judge Zucker-Zarett rejected an attempt
by Robert Alston to be relieved from making alimony payments on the
ground that his ex-wife had married another woman, according to an
article in The Record (May 25).  Alston alleged in motion papers
that his ex-wife and her lesbian partner had a marriage ceremony
performed by an ordained Episcopal priest in September, 1995, and
argued that since she "has done everything she could to hold
herself out as being remarried," Alston should be relieved from his
obligation to pay her $50 a week, pay her medical insurance
coverage, maintain her as a beneficiary on his life insurance, and
contribute $30 a week to her auto insurance, as required by the
couple's 1994 divorce decree until such time as she remarried.  The
article does not describe the judge's rationale for the decision. 
A.S.L.

Law & Society Notes

When Cobb County, Georgia, commissioners adopted an anti-gay
resolution, they stimulated protests that led to Olympic events
being moved out of the county this summer.  A copycat resolution by
Wayne County commissioners threatened to have the same result, but
the commissioners decided on May 6 that they'd rather not sacrifice
Olympic glory in favor of right-wing political correctness, and
voted 3-2 to repeal their resolution.  Commissioners had been
concerned that the Olympic torch itinerary would be revised to keep
the torchbearers from running through their county, according to an
Associated Press report published in many newspapers early in May.
* * *  Out of solidarity with Cobb County, the Spartanburg County
Council passed a similar anti-gay resolution, which sparked an
uproar because the Olympic torch was supposed to pass through
Spartanburg County and the US gymnastics team was scheduled to use
facilities in that country to train for the Games.  Within days,
the Spartanburg Commission backed down and repealed their
resolution, although they passed a substitute resolution supporting
state legislation to ban same-sex marriages.  There was speculation
in the press that the gymnastics team might vote to relocate their
training to another county.  Charlotte Observer, May 15; Columbia
State, May 18.  

The town council of Normal, Illinois, apparently deciding that gays
aren't "normal" people, voted 5-2 against adding "sexual
orientation" to their municipal anti-discrimination ordinance.  

On May 15 the U.S. House of Representatives passed a defense
authorization bill for the 1997 fiscal year that includes
provisions introduced by Rep. Robert Dornan (R.-Cal.) imposing an
outright ban on military services by gays and requiring the medical
discharge of any service member found to be HIV+.  

In a closely-watched local election, voters in Merrimack, New
Hampshire, rejected a religious-right wing candidate and elected
Democrat Rosemarie Rung to the school board.  The Merrimack board
had previously passed a controversial policy that banned any
instruction or counseling that has "the effect of encouraging or
supporting homosexuality as a positive lifestyle alternative." 
Rung's election tips the balance on the school board such that
repeal of the policy seems likely.  San Francisco Examiner, May 15. 


A special court convened by the Episcopal Church to determine
whether charges should be lodged against retired Bishop Walter
Righter due to his ordination of a "practicing homosexual" as a
church deacon in 1990 announced May 15 that it found no basis to
prefer charges.  The court voted 7-2 that the church did not have
any core doctrine that was violated by Righter's actions. The
bishops whose petition led to the proceeding subsequently announced
they would attempt to take the issue to the next General Convention
of the church. * * * Interestingly, the next day it was reported
that the retired Archbishop of Canterbury, Robert Runcie, who had
been head of the Anglican Church (the English Episcopalians) that
any ban on ordination of openly gay clergy was "ludicrous."  Runcie
indicated that he had ordained many gays, although due to current
church practices he would not have ordained them had they been open
about their homosexuality.  Runcie described the situation as a
version of the "don't ask, don't tell" policy.  His published
comments brought a rather non-directive official statement from the
current church hierarchy: "The House of Bishops has made clear its
teaching that the Church cannot regard homosexual practice as on a
par with heterosexual relationships within marriage.  Moreover, the
priesthood is a particular calling and the Church is right to
require high standards of holiness and discipline from those
seeking ordination."  Washington Post, May 17.  

The Glendale, California, school board voted May 7 to reject a
proposal that would require high school students to get parental
permission to join extracurricular clubs.  The proposal was made in
response to a request by gay and lesbian students at Hoover High
School to form a club.  The ACLU, Lambda Legal Defense and People
for the American Way intervened to let the school district know
that such a policy would be challenged.  Instead, the board adopted
a policy under which all parents would receive a list of all clubs
and activities open to their students, describing fees and other
commitments and the purpose of each group.  Los Angeles Times, May
8.

In a closely watched prosecution stemming from the anti-gay bias-
related 1991 murder of Julio Rivera in Queens, N.Y., prosecutors
allowed one of the defendants, Erik Brown, to plead guilty to a
manslaughter charge.  Brown had been convicted of second-degree
murder in an earlier trial, but the conviction was set aside by the
Appellate Division due to an error by the trial judge, who
conducted some voir dire of jurors in chambers in order to ask
questions about jurors feelings about homosexuality. Part of
Brown's deal with prosecutors included a promise to testify against
co-defendant Esat Bici, whose conviction was also vacated.  A third
co-defendant, Daniel Doyle, had pleaded guilty to manslaughter
before the earlier trial and was the principal witness.  Doyle is
now serving his prison term, and reportedly unwilling to testify at
the retrial, so prosecutors made a deal with Brown in order to be
able to try Bici.  It was subsequently reported that Bici failed to
report for a court date, and a warrant was issued for his arrest. 
New York Times, May 14.  

Associated Press reported that a jury in Middletown, Connecticut,
recommended a life sentence for Janet Griffin, a lesbian who was
convicted of murdering Patricia Stellar, the new lesbian partner of
Griffin's former partner, as well as Stellar's nephew, Ronald King,
who happened to be present when Griffin confronted Stellar.  A
telephone answering machine, activated when Griffin showed up at
Stellar's home, recorded the murder, including the sounds of the
victims pleading with Griffin not to kill them. A.S.L.

International Notes

The Hungarian parliament, responding to a decision last year by the
nation's Constitutional Court, has passed a measure giving same-sex
and opposite-sex unmarried couples in long-term relationships the
same legal and financial rights.  The amendment to the Civil Code
passed by a vote of 207-73, according to a May 22 report by
Reuters.  As in several Civil Code countries in Europe, cohabiting
heterosexual couples have long had certain rights as a type of
"common law" marriage without benefit of license or state-
recognized ceremony.  This measure extends the same rights to same-
sex couples, but falls short of all the rights and responsibilities
of legal marriage.  Thus, Hungary might be classified as having
done something akin to the Scandinavian countries with their
registered partnership laws, although there are undoubtedly
differences in the details. A.S.L.

Canada's House of Commons voted 153-76 on May 9 to amend the
federal Human Rights Act to add "sexual orientation" to the list of
forbidden grounds for employment discrimination.  The Act applies
to the federal civil service as well as employees of regulated
businesses, such as banks, railways, airlines, telecommunications
and broadcasting.  Seven Canadian provinces already ban such
discrimination, but the federal law would extend the protection at
least partially into those provinces that have not yet legislated
on the matter.  The controversial nature of the decision led Prime
Minister Jean Chretien to free his party's members from normal
discipline to vote their preferences; nonetheless, the bill carried
by a substantial margin.  Approval by the Senate and Royal Assent
were expected in short order, making Canada the first nation in the
Americas to adopt federal legislation banning sexual orientation
discrimination.  New York Times, May 10. A.S.L.

The French National Railroad announced that it would extend its
fare discount program for married couples and cohabiting
heterosexuals to cohabiting same-sex couples.  In order to qualify,
same-sex couples would have to present documentation that they live
together.  Many French municipalities now authorize registration of
same-sex couples, who receive such a certificate.  Oregonian, May
14.  A.S.L.

The South African parliament voted on May 14 to bar discrimination
on the basis of sexual orientation or sex in the National Defense
Force.  The policy also requires the Defense Force to respect
different religions and languages.  Orlando Sentinel, May 15.  The
action followed hard on the final approval of the new South African
constitution, the first in the world to explicitly incorporate a
ban on sexual orientation discrimination.  Although the new
constitution does not take effect for two years, the interim
constitution also includes the same anti-discrimination provision. 
New York Times, May 9. A.S.L.

The Boston Globe reported May 28 that The Swift Water (Vermont)
Girl Scout Council had dismissed three adult volunteer leaders who
had refused to indicate their support of the Girl Scouts' non-
discrimination policy, which extends to sexual orientation and
religious belief.  This has had wider repercussions locally, since
many Girl Scout troops are sponsored by churches, and at least one
church in the state has expelled its troop over this issue. A.S.L.

A local court in Victoria, Australia, ruled that police conducting
a raid on a gay and lesbian nightclub had exceeded their powers and
abused the rights of club patrons by subjecting patrons and staff
to humiliating strip searches for contraband.  The court awarded
$10,000 to one of the plaintiffs, and was expected to lift a stay
of proceedings on behalf of numerous others, which may result in a
total payout of damages of more than $2.5 million Australian.  (It
is a very big club, with hundreds of patrons present.)  A.S.L.

On April 16, the Lower Chamber of the Dutch Parliament passed a
resolution demanding the preparation of a bill to allow same-sex
couples to marry. In a separate resolution, it demanded a bill to
allow same-sex couples to adopt. And in a third it asked the
government to look more closely into the possibility of adoption of
foreign children. Being mere parliamentary resolutions, they have
no legal effect.  The Dutch political and legislative process is
notoriously slow. The present government is not in favor of
same-sex marriage and same-sex adoption. Therefore, these
resolutions will lead to an official Commission being appointed,
which will probably not meet the suggested deadline of August 1997.
Since there are to be elections (at the latest) in the Spring of
1998, it is unlikely that the present government will have a chance
to translate any recommendations of the probable Commission into
actual bills. So bills to enable same-sex marriage and adoption
could normally not be expected before 1999. Such bills would
normally not become law before 2001. And all this only, if neither
the probable Commission, nor the new government, nor the Senate
will decide against it.  In the meantime, Parliament will be
debating and probably passing three other bills (all three
proposing amendments to the Civil Code).  The first bill (nr.
23761, introduced in June 1994, partly changed in September 1995)
introduces registered partnership for same-sex couples and for
different-sex couples who can but do not want to marry.
Registration will have almost all legal consequences of marriage,
with the notable exceptions of the marital status and of any form
of parenthood or parental rights and duties.  The second bill (nr.
23714, introduced in May 1994) introduces two forms of parental
authority (co-custody and joint custody) for same-sex and
different-sex partners who are not both the legal parents of the
children they are bringing up. The government has promised to
change this bill so as to give more parental rights and duties to
co-custodians and joint custodians, without giving them the status
of legal parents.  The third bill (nr. 24649, introduced in March
1996) extends the possibility of adoption to unmarried
different-sex couples, and to individual persons (until now only
married couples can adopt in the Netherlands). Adoption will remain
impossible for same-sex couples, although the government has
indicated that one partner in a same-sex couple would be eligible
for individual adoption of the foster child of the couple, as long
as the child would not get two legal parents of the same sex.  All
three bills could become law before the end of 1997. Same-sex
couples in the Netherlands will then have available almost all
rights and duties traditionally attached to marriage and/or
parenthood. It will be at least some years into the next century
before they will also be eligible for the legal status of being
married and the legal status of both being the legal parents of
their children. K.W.  [Editor's Note: Reuters reported on May 28
that the Dutch government had announced appointment of a committee
of experts to formulate legislative proposals responsive to the
Dutch parliament's resolutions, with a one-year deadline for
reporting. A.S.L.]

We have belatedly learned that the Spanish Congress of Deputies and
Senate voted last year to ban discrimination based on sexual
orientation and place penalties for anti-gay hate crimes in the
nation's Penal Code. A.S.L.

The British House of Commons voted 188-120 on May 9 to retain
Britain's ban on military service by lesbians, gay men and
bisexuals.  The vote approved a report by a special study
commission that had been formed to examine the issue.  This leaves
Britain out of sync with its European Community neighbors, almost
all of whom allow gays to service without restriction.  A.S.L.

Professional Notes

Andrew S. Park, a gay activist lawyer in Philadelphia, will close
his law practice in order to start a non-profit organization to
provide legal advice for the lesbian and gay community.  The Center
for Lesbian and Gay Law and Public Policy opened on May 20,
providing telephone counseling and initiating a variety of projects
and educational efforts.  Funding is being sought from foundations
and private donors.  Knight Ridder/Tribune Business News, May 16. 


Prominent lesbian feminist attorney Mary Dunlap, who argued the
"Gay Olympics" case before the U.S. Supreme Court, and was among
the first lawyers in the country to teach courses on lesbian and
gay issues at a variety of Bay Area law schools, has been appointed
director of San Francisco's Office of Citizen Complaints, which
review complaints against the police by members of the public. 
Dunlap had retired from active law practice a few years ago to work
on her autobiography and teach sexuality and law courses on a part-
time basis at several law schools.  Dunlap told the San Francisco
Examiner (May 8), "I thought I would be satisfied with more time to
write, teach and grow creatively. . .  But I liked fighting in the
trenches, and now I appear to be back in the fray."  Ms. Dunlap was
the keynote speaker for the annual dinner of New York's Lesbian &
Gay Law Association several years ago, at which time she auctioned
off the formal suit she had worn for her Supreme Court argument,
donating the proceeds to the Association.

The Gay and Lesbian Law Association in Miami has presented its
Outstanding Advocate Award to Julia Dawson.  Dawson is treasurer of
the Association and active with the Dade County Alliance Against
Domestic Violence and the Miami Clinic Access Project (protecting
abortion clinics from protesters).  Miami Herald, May 26.  

The U.S. District Court in San Francisco has dismissed a class
action suit by attorney Richard Gayer against the State Bar of
California, its president and a staff member, in a proceeding that
stems from a State Bar investigation of Gayer.  Gayer v. State Bar
of California, 1996 WL 193846 (April 16) (not officially
published).  Gayer wrote a letter to the editor published in the
Sentinel, a gay community paper, in May 1992.  In the letter, Gayer
asserted that several judges on the San Francisco Municipal Court
thought that "disputes between gay citizens are not worthy of the
courts' time," giving as an example a case in which a jury had
awarded $8,000 damages against Gayer in a dispute over a will Gayer
had drafted.  The State Bar subsequently launched an investigation
of Gayer, based on the publication of the letter, which garnered
attention from the Bay Area's legal press in part due to the
inflammatory statement: "Only my respect for the law and my
rejection of violence has caused me to refrain from loading my
shotgun and pumping eight rounds each into the bodies of the
Honorable Lillian Sing, Stuart Pollak, Laurence Kay, and David
Garcia. . ."  In the current suit, Gayer claims that the State
Bar's action violated his constitutional rights under the First
Amendment, equal protection, and due process.  The court dismissed
the claim, noting that the State Bar had terminated its
investigation without taking any action against Gayer and thus he
lacked standing to seek injunctive relief against the Bar.  (A
previous suit Gayer filed in 1993 had also been previously
dismissed.)  

San Francisco Mayor Willie Brown has appointed Leslie Katz, a
prominent lesbian attorney who is the elected president of the
Community College District, to fill a new vacancy on the board of
supervisors.  Community activists had called on Brown to appoint an
openly lesbian or gay person to replace Carole Migden, recently
elected to the state assembly.  Brown managed to maneuver things so
as to have two vacancies to fill, and then appointed Katz and Rev.
Amos Brown, an African-American minister whose selection received
some negative comment in the gay community due to his past support
for Rev. Eugene Lumpkin, a city human rights commissioner who was
forced to resign by former Mayor Frank Jordan due to his repeated
homophobic remarks.  In a May 22 editorial, the San Francisco
Examiner called these criticisms of Rev. Brown a "bad rap," arguing
that he turned against Lumpkin when Lumpkin persisted in his
remarks.  The local newspapers were united in praising the
appointment of Katz, who at 34 has been active in a variety of
community organizations and has plenty of experience working in
political campaigns.  This should come in handy, since she has to
run for re-election this November.  

The Association of the Bar of the City of New York Committees on
Sex & Law, Civil Rights, and Lesbians & Gay Men in the Profession
jointly sponsored a program to commemorate the 10th anniversary of
the New York City law banning sexual orientation discrimination. 
The program, titled "Ten Years Later: A 10th Anniversary
Observation of Sexual Orientation Protection Under New York City
Human Rights Law" was held at the Bar Association on June 4 at 6:30
p.m.  Participating speakers were: Dr. Marjorie Hill, Commissioner
of the New York State Worker's Compensation Board (who served as
moderator), Andy Humm, Professor James Levin of City College of
N.Y., Dr. Joyce Hunter, NYC Human Rights Commission Chairperson
Marta Varella, Professor Thomas B. Stoddard of NYU Law School, and
Professor Chai Feldblum of Georgetown University Law Center. 
A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 

Connecticut Supreme Court Rules on HIV-Discrimination Claim Brought
by Waiter Against Restaurant

The Connecticut Supreme Court ruled May 28 that a restaurant
violated the state's human rights law when it discharged a waiter
whom the manager believed had AIDS, but remanded for a new
administrative hearing on damages.  Ann Howard's Apricots
Restaurant, Inc. v. Commission on Human Rights and Opportunities,
1996 WL 257093.  

The waiter (called John Doe II in the opinion by Justice Katz), who
did have AIDS, testified at an administrative hearing, but due to
his illness, cross-examination was curtailed prematurely and was
never continued due to his death.  When the hearing resumed with
Doe's estate substituted as complaining party, the restaurant moved
to strike Doe's testimony because the cross-examination was
incomplete.  The hearing officer refused to strike the testimony,
stating she would appropriately discount those portions of the
direct testimony that had not been subject to cross-examination
(principally on the issue of damages). The Commission's hearing
officer found a violation of the act based on disability
discrimination, and awarded damages to Doe's estate of $15,910.34
for backpay and $15,000 for emotional distress.

The restaurant appealed to the superior court, which held that the
hearing officer erred in refusing to strike Doe's evidence, and
remanded for a new hearing.  The Commission appealed this ruling,
and the state supreme court took the appeal directly, bypassing
intermediate review.

Justice Katz found that there was plenty of evidence in the record
apart from Doe's testimony provided a sufficient basis for the
hearing officer's conclusion that the act was violated.  The
restaurant manager and several fellow employees testified to the
facts surrounding the discharge. "[E]ven if the hearing officer had
excluded Doe's direct testimony in the third stage of her
discrimination analysis, significant evidence remains in the record
from which the hearing officer could have concluded that the
plaintiff had impermissibly discriminated against Doe. From the
testimony of Quinn [the restaurant manager] and other employees of
the plaintiff, the hearing officer could have reasonably concluded
that Quinn had perceived Doe to be suffering from AIDS, that Quinn
had requested medical documentation from Doe regarding his illness
and his ability to work and that Quinn had not requested similar
documentation from other employees who had taken leaves of absence,
that Quinn had never discharged another employee while on leave,
and that Quinn decided to discharge Doe without knowing whether Doe
would return to work or whether Doe's condition posed a risk to
others."  Because the other evidence was sufficient to support the
liability finding, failure to strike Doe's testimony would be
"harmless error," concluded Katz, so it was not really necessary
for the court to determine whether the hearing officer abused her
discretion in refusing to strike the testimony.

Interestingly, the court does not discuss in any depth the question
whether the restaurant might be justified in refusing to employ a
waiter with AIDS, merely noting that the restaurant never
introduced any evidence at the hearing about safety risks to
others.  In other contexts, some writers have contended that a
restaurant should not be required to employ any staff with AIDS
whose condition might be known to the public, due to adverse effect
on the restaurant's business.  That seems never to have become an
issue in this case.

Turning to the damages issue, as to which no cross-examination took
place and Doe was the only witness, the court found that the
hearing officer did not have an adequate record to make a finding
on the issue of mitigation of damages.  While the hearing officer
had received in evidence during Doe's direct examination the IRS W-
2 forms indicating how much Doe would have made had he not been
discharged, and how much he did make in the jobs he obtained after
his discharge and before he became too ill to continue working, the
restaurant never got to cross-examine Doe about his efforts to
mitigate damages by finding work.  Consequently, the supreme court
remanded and ordered the hearing officer to hold a hearing on the
issue of damages, striking Doe's testimony.  In a footnote,
however, the court commented: "In the hearing, the hearing officer
is free to consider, among other things, properly admitted evidence
of damages; and whether the documentary evidence indicating that
Doe had worked for a total of thirty-four weeks following his
discharge, sufficiently demonstrates a reasonable effort to
mitigate."  This is called sending a clear message to the
administrative tribunal!  

Doe's estate was represented on the appeal by Gregg D. Adler and
Anne Goldstein, with amicus assistance from Lambda Legal Defense
Fund and the Connecticut AIDS Action Council, represented by
Lambda's Catherine Hanssens, Kathleen A. Sullivan, and law student
intern David Lesser.  A.S.L.

Connecticut Supreme Court Rules on HIV Confidentiality Claim

In a decision issued May 7, the Connecticut Supreme Court found a
cause of action under the state's HIV confidentiality law against
a physician whose surgical assistant wilfully disclosed the HIV
status of the plaintiff without her permission.  Doe v. Marselle,
236 Conn. 845, 1996 WL 234241.  The Jane Doe plaintiff charged that
her doctor, in whom she confided about her HIV-status, had without
her knowledge or authorization shared this information with his
surgical assistant, who then disclosed it to several persons in the
community.  She asserted a variety of claims, although the
principal claim was founded on sec. 19a-583, Connecticut's HIV
confidentiality law, which authorizes damages for wilful violations
of confidentiality.  On this motion to strike by the doctor, the
intermediate appellate court accepted the doctor's argument that
there could be no wilful violation unless it was shown that the
doctor intended to cause some injury to the plaintiff through his
disclosure of her HIV-status.  The five members of the Supreme
Court sitting on this case unanimously rejected this holding, and
reversed in a decision by Justice Katz.

After an extensive review of the legislative history and purposes
of the HIV confidentiality statute, Katz asserted that "it is
difficult to presume a definition of wilful that would make
permissible the unauthorized disclosure of a person's HIV-related
information except in the extreme situation where the person
disclosing the information actually intends to injure the protected
individual.  We have noted that as part of its attempt to foster an
increase in medical treatment for people with AIDS and HIV
infection, the legislature created the AIDS statute to correct the
problems, such as the lack of confidentiality, that have stood in
the way of this goal.  A definition of wilful that would require a
plaintiff to prove that confidentiality was breached with the
intent to cause injury would do nothing to advance the laudable
goals of the legislation's sponsors." Katz noted that ultimately
the result of giving such a narrow construction to the statute
would be to undermine the reasonable expectation of confidentiality
and deter people from seeking testing and treatment.  The court
adopted the following definition of wilful for purposes of the
statute: "Rather, we interpret wilful to mean a knowing disclosure
of confidential HIV-related information. . .  [T]his does not
render the term superfluous.  Had the term wilful not been used,
persons would be liable for inadvertent disclosures or
nonvolitional acts.  By establishing liability only for wilful
violations, the legislature indicated that inadvertent violations
would not be actionable."

The court also rejected the doctor's argument that no action could
be brought against him because the actual disclosure of which the
plaintiff complained emanated from the doctor's assistant.  The
court rejected this argument as well, pointing out that the doctor
had authorized the assistant to make disclosure of this
information, and, in any event, the doctor could be liable under a
theory of respondeat superior for the disclosures made by his
employees.

Doe was represented by Susan Garten and Ana Mari Bermudez, with
amicus assistance from cooperating attorneys for the Connecticut
Civil Liberties Union.  A.S.L.

Federal Court Refuses to Dismiss Employment Discrimination Claim
Under ERISA Section 510

On April 29 U.S. District Judge Keenan (S.D.N.Y.) denied summary
judgment to an employer who had discharged an employee after
learning that the employee's homosexual partner, who was HIV+, had
been hospitalized.  DeSimone v. Transprint, USA, Inc., 1996 WL
209951.  

Michael DeSimone was discharged by Transprint in June, 1991.  In
April 1994 he filed the instant action against his former employer
alleging that Transprint discriminated against him on the bases of
disability and sexual orientation in violation of the New York
State Human Rights Law, Executive Law sec. 290 et seq., and the
Administrative Code of the City of New York, sec. 8-101 et seq. 
DeSimone's original complaint alleged that, despite his exemplary
performance of his employment duties, he was discharged because he
was gay and because his employer believed that he was HIV+.  This
belief was based on DeSimone's same-sex partner being HIV+ and
hospitalized.  

Pursuant to stipulation of the parties, DeSimone withdrew his claim
under the Administrative Code and filed an amended complaint
asserting an additional cause of action for violation of sec. 510
of ERISA, 28 U.S.C. sec. 1140.  This section prohibits discharge of
an employee for the purpose of interfering with the employee's
attaining rights under the an employee benefit plan.  Transprint
moved for summary judgment, arguing that DeSimone does not state a
prima facie claim under sec. 510 because he failed to establish he
has the right to recover benefits due him under the plan, and
alleging that the amended complaint, filed more than three years
after DeSimone's discharge, was barred by the statute of
limitations.  

Judge Keenan held that the discrimination alleged in the complaint
is for Transprint's alleged interference with DeSimone's ability to
qualify for the benefits plan and not his right to recover under
the plan.  The court held that interfering with an employee's
ability to qualify for participation in a benefit plan is
discriminatory pursuant to sec. 510.  The court further held that
extra-contractual damages are available for this type of claim. 
Finally, Judge Keenan held that these claims are governed by New
York's six year statute of limitations for contracts and therefore
not barred by the statute of limitations.  This matter is scheduled
for trial before United States District Judge Charles Metzer on May
28, 1996.  T.V.L.

Federal Court Explicates Maryland "Discovery Rule" In Transfusion
Litigation

In a case to determine at what point a statute of limitations
begins running when the issue concerns HIV infection from a blood
transfusion, the U.S. District Court of Maryland held in Doe v.
American National Red Cross, 1996 WL 220764 (April 25), that the
crucial date is that on which the claimant is put on inquiry notice
that a wrong may have occurred, and not the date that an expert
concludes there has been malpractice.

Plaintiff Jane Doe was infected with HIV, having received
contaminated blood from the Red Cross after a caesarean section
performed in Baltimore in 1985.  Initially, Doe believed her
infection occurred in 1984 or 1985 when she underwent two surgical
procedures performed at Johns Hopkins Hospital by Dr. Rudolph
Almaraz, who died of AIDS in 1990.  After Dr. Almaraz's death,
which was widely publicized in the Baltimore area, Doe received a
letter from Johns Hopkins offering to test all of his former
patients, even though the Hospital assured them that the risk of
having contracted HIV through contact with Dr. Almaraz was
negligible.  

Doe hired an attorney and was tested.  She was informed by the
Hospital that she was indeed HIV+, and shortly thereafter, in
January 1991, her attorney instituted a claim for damages against
Johns Hopkins, Dr. Almaraz, and his estate.

In June 1991, the Almaraz estate's counsel contacted Doe to suggest
that her 1985 blood transfusions could be the actual source of
infection, and stated it was attempting, through the offices of the
State of Maryland, to find out whether either of the donors
involved was HIV+.  Subsequently, the Red Cross reached both donors
and one of them acknowledged that he was indeed HIV+.  In December
1991, Doe and her attorney were informed that Dr. Almaraz was not
the source of her HIV infection, and she subsequently dismissed her
suit against him, his estate, and Johns Hopkins.  However, it was
not until November 1, 1994, that she instituted the present action
against the Red Cross, using a different attorney, and alleging
that she became infected with HIV through her 1985 transfusions.

Under Maryland's "discovery rule," in a civil action the statute of
limitations is tolled until the plaintiff has information
concerning the circumstances that would cause a reasonable person
to undertake an investigation which, if pursued with reasonable
diligence, would lead to knowledge of the alleged tort.  When a
plaintiff does have sufficient information, she is deemed to have
been put on "inquiry notice."  In Doe, the Red Cross argued that
she had three years from the date she learned she was HIV+ to
institute her suit against it or, in the alternative, that she had
three years from the time her attorney learned of the 1985 blood
transfusions in early 1991.  Doe, on the other hand, argued she had
three years from when she learned that Dr. Almaraz what not the
source of her infection and that the probable source was the 1985
transfusions, that is from December 1991.

The court agreed with the Red Cross and found that the plaintiff
was barred from bringing suit at this late date.  It compared the
present action with Baysinger v. Schmid Prod. Co., 514 A.2d 1
(1986), where the plaintiff had an intrauterine contraceptive
device inserted in May 1979, removed in November 1979 after
experiencing abdominal pain, and then in December 1979 was admitted
to the hospital, diagnosed with acute peritonitis.  At that time,
she asked her treating doctors about a possible connection between
the IUD and her condition, but was told by them that there was no
way to determine whether it was in fact the IUD or something else. 
It was not until January 1983, after Baysinger's sister found a
newspaper advertisement that suggested possible causation, that she
obtained counsel and filed suit against the IUD manufacturer. 
Here, in a case that went to the Maryland Court of Appeals, it was
held that because the plaintiff's doctors told her there was no way
to determine how her infection was caused, it had become a question
for the reasonably prudent person to determine whether the
plaintiff should have undertaken a further investigation at the
earlier date; the case was thus remanded to the trial court.

In contrast, Doe's attorney had been notified by June 1991 that the
1985 blood transfusions were a possible source of infection.  The
court was convinced that no reasonable juror could rationally
conclude that a reasonable person would not then have investigated
the transfusions.  Thus, as a matter of law, Doe's claims accrued,
at the latest, in June 1991, and she and her attorney were on
inquiry notice at that time.  The court paid scant heed to the fact
that Doe has only a tenth-grade education and was not trained in
medicine, and found that since she had hired an attorney, he should
have been cognizant of all the facets of the situation, including
the existence of media coverage, medical literature, and the case
law by 1991 concerning the risk that blood transfusions undertaken
in the early 1980s posed to their recipients.

The court also cautioned that while Doe's attorney evidently wanted
to wait for the results from the State's investigation of the
circumstances surrounding the patients of Dr. Almaraz, hoping to
find that the doctor was in fact the source of her infection and
thus avoiding a costly investigation, there is no provision in the
law for arguing a "seriatim" application of the discovery rule to
stay the statue of limitations against a second or third potential
defendant where a potential plaintiff is on inquiry notice of her
victimization.

Because the suit was not instituted until November 1, 1994, more
than three years after Doe's claims accrued, the court awarded the
Red Cross judgment as a matter of law.  J.H.

Federal Court Allows AIDS Plaintiff to Proceed Anonymously

U.S. District Judge Kocoras of the Northern District of Illinois
ruled in Doe v. Alexian Brothers Medical Center, 1996 WL 210074
(April 25), that the plaintiff may proceed anonymously, even though
his counsel from the ACLU issued a press release seeking publicity
for the lawsuit.  At the same time, the court denied a motion by
the defendant for a protective order requiring the plaintiffs to
keep the defendants' identity confidential in their publicity
campaign.  

Judge Korcoras opined that a protective order "would curtail the
First Amendment rights of the Plaintiff, as well as the public, in
a way that is not justified by the current case," in which Doe
charges the defendant with statutory violations and negligence as
a result of an HIV test that he was allegedly given without his
consent.  Noting the irony that it is the plaintiff who initiated
publicity about the case, nonetheless the judge authorized
anonymity for the plaintiff, who claimed that "he would face
harassment and stigmatization if it was made public that he had
been tested for HIV out of a belief that he was HIV infected." 
Judge Korcoras assured the defendant that the plaintiff's anonymity
would not interfere with the discovery process and all requirements
of due process would be met.  A.S.L.

Florida Appeals Court Approves Enhanced Sentence Based on HIV
Exposure

In Morrison v. State, 1996 WL 271561 (Fla.App., 4th Dist., May 22),
defendant Naomi Morrison appealed the trial court's upward
departure from sentencing guidelines.  Morrison was convicted of
aggravated battery of a 90-year-old man, robbery and burglary of a
conveyance.  In the course of the robbery, Morrison, who is HIV+,
bit the victim's arm "to the bone."  The victim was diagnosed HIV+
after this event.  The trial court articulated four reasons for the
upward departure to a prison term of 10 years followed by 10 years
probation: (1) especially atrocious and cruel crime of violence;
(2) special vulnerability of the aged victim; (3) victim's
subsequent HIV diagnosis; and (4) because of her drug addiction and
HIV-infection, Morrison was not considered amenable to
rehabilitation.  Writing for the Court of Appeal, Judge Warner held
that the complicating factor of exposure to HIV was itself "a valid
reason for departure on the basis of the emotional devastation
suffered by the victim as a result of an exposure to this virus,
which could give rise to AIDS, a fatal disease."  The sentence was
affirmed.  A.S.L.

Defendant's HIV-Status May Be Considered At Sentencing

In Sellers v. State, 1996 WL 223537 (April 29), an unpublished
Texas Court of Appeals decision that may not be cited as authority,
the court held that evidence of the defendant's HIV+ status was
properly admitted in the punishment phase of the defendant's trial
for aggravated sexual assault of a child under the age of 14.  

Pleading guilty to the offense, the defendant admitted having
forced the victim to engage in recipient oral sex, that he
ejaculated during the incident, that his "infected bodily fluid"
likely entered the victim's mouth, and that he had known of his
HIV+ status prior to the incident. However, the defendant contented
that at the time he had been in a state of  "denial" regarding his
medical status.  Trial proceedings were limited to the jury's
determination of punishment; the defendant was sentenced to 25
years in the state penitentiary.

The court rejected the defendant's claim that his HIV+ status
carried a stigma similar to or worse than that associated with
being a criminal and therefore constituted evidence of an
unadjudicated extraneous offense inadmissible under the Texas
criminal procedure code.  The defendant's status, the court said,
was not an offense, a bad act, or evidence of any specific conduct
by defendant; it was a medical condition.  Any connection between
the defendant's status and his sharing of needles during illicit
drug use was introduced by the defendant's own counsel, the court
noted.

The court also rejected the defendant's contention that the
evidence of his status was inadmissible as irrelevant, its only
effect being to inflame the jury and enhance the defendant's
punishment.  The admission of evidence at the punishment phase of
a noncapital felony offense is largely a function of policy, rather
than relevancy, the court emphasized, because there are no discrete
factual issues to be determined.  And, in selecting an appropriate
punishment, it is essential that the sentencer possess the fullest
possible information concerning the defendant's life and
characteristics, including the circumstances of the offense itself. 
The court concluded that evidence of a criminal defendant's HIV+
status was a "viable concern" for the punishment stage of a trial
for aggravated sexual assault, particularly where there was
evidence that the defendant's bodily fluids entered the victim's 
mouth.  [The court did not discuss the victim's HIV status.]  R.M.

Louisiana Appeals Court Says Health Care Student May Sue Hospital
for HIV Exposure

Jason Dustin was a student of DHCI Home Health Services, Inc.,
which provides training for health care support workers.  As part
of his training, Dustin was "placed" at Earl K. Long Medical Center
for clinical experience.  When he arrived on April 21, 1993, he was
assigned to the emergency room, where he was asked to help restrain
a violent patient.  Dustin was not informed that the patient was
HIV+.  "While attempting to restrain the patient, bodily fluids and
blood from the patient's lacerated lip were projected into
plaintiff's eyes and mouth." Dustin subsequently tested HIV+ and
sued DHCI and Earl K. Long Medical Center.  The Medical Center
moved to dismiss his tort suit, arguing that his sole remedy was a
workers compensation claim.  The trial judge found that Dustin was
an "employee" of the Medical Center for this purpose, and dismissed
the tort claim against the Medical Center.

Ruling May 10 in Dustin v. DHCI Home Health Services, Inc., 1996 WL
242988, the Louisiana Court of Appeal, 1st Circuit, rejected the
trial court's reasoning and revived Dustin's suit.  The opinion by
Judge Whipple rejects both of the Medical Center's alternative
theories: (1) that Dustin was a "borrowed employee" from DHCI, or
(2) that Dustin could directly be considered an employee of the
Medical Center.  Neither DHCI nor the Center "employed" Dustin,
found the court, focusing on the proposition that "the compensation
act is based on a wage loss theory."  As a student, Dustin did not
receive wages from either defendant.  The record also showed that
the Center had no personnel files or records for DHCI students
placed there.  As no wages were paid, "there is no basis for
calculating benefits" under the workers compensation law.  Thus,
Dustin was entitled to sue in tort and the case was remanded for
trial.  A.S.L.

Connecticut HIV Privacy Law Supplements Common Law Rights

A Connecticut court has ruled that the state law prohibiting
willful disclosure of a person's HIV status creates a supplementary
cause of action in addition to traditional common law remedies. 
Balzac v. Stamford Hospital, 1996 WL 222406 (Conn. Super., April
2).

Plaintiff Audrey Balzac sued defendant Stamford Hospital, alleging
that hospital employees discussed her HIV status (and the conduct
that had probably led her to contract HIV) with her while other
patients were within hearing range in a waiting room, despite her
objections.  Connecticut has a statute prohibiting the disclosure
of confidential HIV-related information, and a provision
authorizing a cause of action for willful violations of the
statute.  Plaintiff alleged a violation of the statute in addition
to common law torts.  The defendants moved to strike most of the
claims, arguing that the willfulness requirement of the statute had
not been satisfied, and that the statute provided an exclusive
remedy pre-empting common law claims.

Distinguishing Doe v. Marselle, 38 Conn.App. 360, 660 A.2d 871
(1995), Judge Tobin ruled that the allegations satisfied the
statutory requirement of willfulness.  Adding that, while the
legislature has the power to limit common law remedies, the
legislature must make clear its intent to do so, Judge Tobin found
that the statute was plain in its language and contained no
prohibition of common law remedies, and therefore denied the
defense motion to strike the negligence claims.  Judge Tobin did
strike the invasion of privacy claim, however, because the
complaint failed to allege sufficient "publicity," which requires
more than the mere "publication" standard of defamation law. 
O.R.D.

AIDS Law & Society Notes

The U.S. Food and Drug Administration has approved a home screening
test for HIV antibodies.  A test kit user would draw blood from a
finger, blot it on specially treated paper, and mail the coded
sample to a laboratory.  The individual would telephone the lab a
week later to get the result; after punching in their code number,
they would get a recording to tell them about a negative result or
a live counselor on the line to tell them about a positive result. 
The test, developed by a subsidiary of Johnson & Johnson, was
expected to be test-marketed in Texas and Florida before becoming
available nationwide.  New York Times, May 15. A.S.L.

Congress passed and President Clinton signed a renewal of the Ryan
White Funding Act for AIDS services.  The new version of the Act
contains a provision that might eventuate in mandatory HIV testing
of newborn infants, but stops short of that for now.  Under the
Act, the states are mandated to undertake intensive efforts to get
pregnant women to submit to voluntary HIV testing and prophylactic
measures to reduce the likelihood of HIV transmission during
childbirth.  Over a two-year period, states must demonstrate a 50%
reduction in the rate of newborn AIDS cases or show that 95% of
pregnant women who receive prenatal care were tested for HIV.  If
these goals are not reached within two years, an 18-month period
would be triggered during which the states would have to legislate
mandatory testing of newborns or intensify their efforts to meet
the goals.  AIDS activists expressed satisfaction that they would
have the opportunity to show that voluntary methods would be
effective to forestall mandatory testing.  The bill provides over
$700 million in federal assistance to states and localities
providing care to persons with AIDS.  A.S.L.

The Washington Court of Appeals held in State v. Foster, 1996 WL
224588 (May 6), that the defendant, who was convicted on five
counts of indecent liberties, was improperly ordered to submit to
mandatory HIV testing, the court noting that the statute
authorizing such testing applied only to offenses committed after
the dates of the defendant's offenses.  R.M.

On May 3, the New York Law Journal published an article about HIV
Infection and Immigration Law by Michael D. Patrick, a partner at
the New York City firm of Fragomen, Del Rey & Bernsen (see
Publications Noted, below).  Patrick's conclusion is worth quoting:
"Ten years after the initial concern over admission of HIV-infected
aliens surfaced, and five years after the people with expertise in
charge of public health in the United States (the PHS) declared
that HIV should not be considered a `communicable disease' for
exclusion purposes, aliens who are HIV-infected are in fact
statutorily excludable.  Thus, the topic has moved squarely from
being a public health matter to a political campaign issue that has
in effect made it nearly impossible for HIV-infected intending
immigrants -- in particular gay men -- to statutorily qualify for
an immigrant waiver because of the absence of a requisite family
relationship, e.g., citizen spouse, upon which eligibility is
based.  Clearly, Congress was not blind to the fact that while it
was enacting an ameliorative waiver provision, it was
simultaneously precluding from eligibility the largest group of
persons whom the provision would most likely benefit." (Note: NYLJ
articles are available on Westlaw beginning about two weeks after
publication.)  A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Bailey-Harris, Rebecca, Financial Rights in Relationships Outside
Marriage: A Decade of Reforms in Australia, 9 Int'l J. L. & the
Family 233 (1995).

Craig, Kellina M., and Craig R. Waldo, "So, What's a Hate Crime
Anyway?" Young Adults' Perceptions of Hate Crimes, Victims, and
Perpetrators, 20 L. & Human Behavior 113 (April 1996).

Crow, Stephen M., Lillian Gok & Sandra Hartman, Moving From Bias to
Discrimination: A Study of Perceptions of Homosexuals in the
Workplace, 4 J. Int'l Emp. Rts. 319 (1996).

Dupuis, Martin D., The Impact of Culture, Society and History on
the Legal Process: an Analysis of the Legal Status of Same-Sex
Relationships in the United States and Denmark, 9 Int'l J. L. & the
Family 86 (1995).

Geoly, James C., and Kevin R. Gustafson, Religious Liberty and Fair
Housing: Must a Landlord Rent Against His Conscience?, 29 John
Marshall L. Rev. 455 (Winter 1996).

Haddock, David D., and Daniel D. Polsby, Family As a Rational
Classification, 74 Wash. U. L. Q. 15 (Spring 1996) (suggests some
interesting economic policy arguments in favor of same-sex
marriage).

Hall, Joanne M., Lesbians' Participation in Alcoholics Anonymous:
A Review of the Literature and Research Agenda, 23 Contemp. Drug
Problems 113 (Spring 1996).

Hodgson, Douglas, Combating the Organized Sexual Exploitation of
Asian Children: Recent Developments and Prospects, 9 Int'l J. L. &
the Family 23 (1995).

Kaas, Carolyn Wilkes, Breaking Up a Family or Putting It Back
Together Again: Refining the Preference in Favor of the Parent in
Third-Party Custody Cases, 37 Wm. & Mary L. Rev. 1045 (Spring
1996).

Kendall, Christopher, Gay Male Pornography: An Issue of Sex
Discrimination, 5 Australian Feminist L.J. 81 (Aug. 1995).

Leff, Thomas P., The Arts: A Traditional Sphere of Free Expression? 
First Amendment Implications of Government Funding to the Arts in
the Aftermath of Rust v. Sullivan, 45 Amer. U. L. Rev. 353 (Dec.
1995).

Levitsky, Sandra, Footnote 55: Closing the "Bisexual Defense"
Loophole in Title VII Sexual Harassment Cases, 80 Minn. L. Rev.
1013 (April 1996).

Peltz, Maxwell S., Second-Parent Adoption: Overcoming Barriers to
Lesbian Family Rights, 3 Mich. J. Gender & L. 175 (1995).

Re, Judge Edward D., Human Rights, International Law, and Domestic
Courts, 4 Cardozo J. Int'l & Comp. L. 1 (Winter 1996).

Seng, Michael P., Hate Speech and Enforcement of the Fair Housing
Laws, 29 John Marshall L. Rev. 409 (Winter 1996).

Strossen, Nadine, Hate Speech and Pornography: Do We Have to Choose
Between Freedom of Speech and Equality?, 46 Case Western Res. L.
Rev. 449 (Winter 1996).

Wardle, Lynn D., A Critical Analysis of Constitutional Claims for
Same-Sex Marriage, 1996 Brigham Young U. L. Rev. 1. (the case
against same-sex marriage, from the nation's leading Mormon law
school).

Zetlein, Sarah, Lesbian Bodies Before the Law: Chicks in White
Satin, 5 Australian Feminist L.J. 49 (Aug. 1995).

Student Notes & Comments: 

Roberts, Donald S., Randall v. Boy Scouts of America: A Case for
First Amendment Protection?, 22 Western State U. L. Rev. 443
(Spring 1995).

Runnette, Deirdre L., Judicial Discretion and the Homosexual
Parent: How Montana Courts Are And Should Be Considering A Parent's
Sexual Orientation in Contested Custody Cases, 57 Montana L. Rev.
177 (Winter 1996).

Specially Noted:

The Los Angeles County Bar Association Report on Sexual Orientation
Bias has been published in 4 S. Cal. Rev. L. & Women's Studies No.
2 (Spring 1995).  The Report includes an executive summary, lengthy
analysis of survey findings, and detailed appendices, including
much of the raw data of the survey as well as bibliographical
references and model policy drafts.

The Partners Task Force for Gay & Lesbian Couples has announced
publication of a video titled "The Right to Marry," which includes
interviews with several national leaders in the struggle for same-
sex marriage.  Copies of the 72-minute video are available for $29
plus $3 postage.  Call Partners Task Force at 206-935-1206 to order
a copy.

Vol. 2, Issue 1, of the National Journal of Sexual Orientation Law
is now available through e-mail.  (The journal is not published in
hard copy and is only available through e-mail.)  Those with e-mail
access can subscribe to announcements of the Journal's availability
(together with instructions on how to access the articles and
documents in the Journal) by sending the following message:
subscribe gaylaw YOUR-FIRST-NAME YOUR-LAST-NAME to the following
address: listserve@unc.edu.

Symposia:

Symposium on Assisted Suicide, Health Care and Medical Treatment
Choices, 72 U. Detroit Mercy L. Rev. No. 4 (Summer 1995).

AIDS & RELATED LEGAL ISSUES: 

Claire, Miriam, Facts to Consider if You're HIV Positive and
Pregnant, chapter 10 in Claire, The Abortion Dilemma: Personal
Views on a Public Issue (Plenum Press, N.Y.C.).

DeNatale, Richard, and Shawn D. Parrish, Health Care Workers'
Ability to Recover in Tort for Transmission or Fear of Transmission
of HIV From a Patient, 36 Santa Clara L. Rev. 751 (1996).

Jayawardena, H., AIDS and Professional Secrecy in the United
States, 36 Medicine, Science & L. 37 (January 1996).

Levesque, Roger J.R., The Peculiar Place of Adolescents in the HIV-
AIDS Epidemic: Unusual Progress & Usual Inadequacies in "Adolescent
Jurisprudence", 27 Loyola U. Chi. L. J. 237 (Winter 1996).

Patrick, Michael D., Immigration Law -- HIV Infection: The
Consequences, New York Law Journal, May 3, 1996, p.3.

Student Notes & Comments: 

Martin, Tara L., The AIDS Epidemic and Discrimination in the
Workplace, 23 Western St. U. L. Rev. 125 (Fall 1995).

Editor's Note:

All points of view expressed in Lesbian/Gay Law Notes are those of
identified writers, and are not official positions of the Lesbian
and Gay Law Associatios is welcome and will be
published subject to editing. Please address correspondence to the
Editor or send by e-mail. A.S.L.

Letters to Law Notes - June 1996

To the Editor:

I wanted to correct a misimpression left by your note on the
Ithaca, New York, marriage situation.  You wrote: "Although some
city officials had wanted to grant the license. . . ultimately the
officials concluded that they did not have authority to do so under
state law."  Actually, the failure to issue the license was duein their celebration.  


Jeff Nickel, President
The Forum on the Right to Marriage (FORM)
Boston, MA 02114

Editor's Response:  

I suspect Mr. Nickel is attributing more power to "national gay
groups" than they possess.  It is apparently true that some
officials of the City of Ithaca, including the mayor and city
council members, expressed willingness to issue a license, and were
asked not to do so by representatives of some national gay groups
who expressed concern that issuance of a license might prompt a
state legislative response that could severely prejudice future
attempts by lesbian and gay New Yorkers to obtain recognition of
same-sex marriages that might be contracted in other jurisdictions,
such as, for example, Hawaii.  However