From: [email-masked]
Date: Mon, 22 Jul 1996 10:10:14 -0400

LESBIAN/GAY LAW NOTES
ISSN 8755-9021 Summer (July/August) 1996
   
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St.,
NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: [email-masked]
or [email-masked]
   
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; Paul Twarog, Esq., New York; Dirk Williams, Esq., Boston;
Charles Wertheimer, NY Law School Student.

Circulation: Daniel Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC
10003. 212-353-9118; e-mail: [email-masked]

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     

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SUPREME COURT REVERSES DECISION ON CINCINNATI ISSUE 3
   
In 1993, Cincinnati voters approved Issue 3, which added a
provision to their city charter prohibiting the city government
from protecting gay people from discrimination.  The immediate
effect of Issue 3 would have been to end enforcement of the city's
human rights law's sexual orientation provision on behalf of gay
people, but Issue 3 was preliminarily and permanently enjoined by
U.S. District Judge J. Arthur Spiegel.  Judge Spiegel's decision
was reversed last year by the U.S. Court of Appeals for the 6th
Circuit, in Equality Foundation of Greater Cincinnati, Inc. v. City
of Cincinnati, 54 F.3d 261.  The 6th Circuit held that gay people
did not constitute a legally cognizable class for purposes of Equal
Protection analysis and thus that Issue 3 must be upheld if there
existed any rational basis for its enactment.  The court found that
the measure advanced several legitimate interests of the city
polity.  Equality Foundation, the organization that had opposed
enactment of Issue 3 and brought the lawsuit, filed a petition for
certiorari, which the Supreme Court held in abeyance while it
pondered the state of Colorado's appeal in Romer v. Evans.
   
On May 20, the Court issued its decision in Romer, 116 S.Ct. 1620,
holding by 6-3 vote that there was no rational basis for Amendment
2.  Since Amendment 2 and Issue 3 were virtually identical in
wording, this seemed to doom Issue 3 to a similar fate, but
apparently the Court was not so sure, for on June 17, by an
identical 6-3 vote, the Court granted certiorari in Equality
Foundation, vacated the judgment of the 6th Circuit, and remanded
the case "for further consideration in light of Romer. . . "  It is
hard to know what further consideration is needed, since the Court
found that there was no rational basis to support Amendment 2.
   
Dissenting, Justice Antonin Scalia argued that the two cases
presented distinctly different issues: "Romer involved a state
constitutional amendment prohibiting special protection for
homosexuals.  The consequence of its holding is that homosexuals in
a city (or other electoral subunit) that wishes to accord them
special protection cannot be compelled to achieve a state
constitutional amendment in order to have the benefit of that
democratic preference.  The present case, by contrast, involves a
determination by what appears to be the lowest electoral subunit
that it does not wish to accord homosexuals special protection.  It
can make that determination effective, of course, only by
instructing its departments and agencies to obey it -- which is
what the Cincinnati Charter Amendment does.  Thus, the consequence
of holding this provision unconstitutional would be that nowhere in
the country may the people decide, in democratic fashion, not to
accord special protection to homosexuals.  Unelected heads of city
departments and agencies, who are in other respects (as democratic
theory requires) subject to the control of the people, must, where
special protection for homosexuals are concerned, be permitted to
do what they please.  This is such an absurd proposition that
Romer, which did not involve the issue, cannot possibly be thought
to have embraced it. I would deny certiorari in this case, or else
set the case for argument to decide for ourselves the ultra-Romer
issue that it presents."
   
Justice Scalia's premise, that Issue 3 and Amendment 2 concern
"special rights" for gays, was pointedly rejected by the Court in
Justice Anthony Kennedy's opinion.  However, his short dissent
appeared calculated to provide an argument to the 6th Circuit
judges to distinguish Romer and keep the controversy over Issue 3
alive for a further visit to the Supreme Court.  It will be
interesting to see if they take the bait.  (Perhaps Scalia is
hoping that Robert Dole is elected and has the opportunity to
appoint somebody to replace the oldest members of the Romer
majority, Justices Stevens or O'Connor, before the case comes back
up to the Court.)
   
Meanwhile, the situation in Cincinnati is complicated by the action
of the city council which, not waiting to see what would ultimately
happen either in Romer or its own case, amended its local ordinance
to remove "sexual orientation."  Presumably, the Supreme Court's
action in vacating the 6th Circuit's judgment means that Judge
Spiegel's permanent injunction against Issue 3 is back in force,
leaving the city government free to re-enact the sexual orientation
provision.  Certainly, the Supreme Court's decision should provide
strong ammunition for those locally who are calling for a re-
enactment.  (In Colorado, spurred on by the Romer decision, the
state's Civil Rights Commission has called for the legislature to
add "sexual orientation" to the state's discrimination laws.)   

The legal team representing Equality Foundation in its challenge to
Issue 3 included Ohio attorneys Alphonse Gerhardstein (who argued
the case in the 6th Circuit), Richard Cordray and Scott Greenwood
(on behalf of the ACLU's Ohio chapter), with assistance from Lambda
Legal Defense attorneys Pat Logue and Suzanne Goldberg. A.S.L.
   
TENNESSEE SUPREME COURT CONFIRMS VICTORY IN SODOMY CASE
   
Upholding a major victory for gay and lesbian rights forces in
Tennessee, the state's Supreme Court refused permission for the
state's appeal of the decision in Campbell v. Sundquist, 1996 WL
29326 (Jan. 26), in which the state's Court of Appeals ruled that
the Homosexual Practices Act, TCA sec. 39-13-510, violates the
right of privacy under the state's constitution.
   
The Supreme Court's order, issued June 10, reads as follows: "Upon
consideration of the application for permission to appeal and the
entire record in this case, the application for permission is
denied with the recommendation that the Court of Appeals' opinion
be published."  Thus, the Supreme Court has in effect adopted the
Court of Appeals' decision as the rule of the case, and the statute
is invalidated.
   
The Homosexual Practices Act was passed in the wake of public
reaction to the U.S. Supreme Court's 1986 decision in Bowers v.
Hardwick, 478 U.S. 186, which held that Georgia's consensual sodomy
statute, as applied to homosexual sodomy, did not violate the
federal constitutional right of privacy.  The media spin of
Hardwick by gay litigation groups was to emphasize that the Georgia
statute did not distinguish between heterosexual and homosexual
sodomy, resulting in quite a bit of adverse comment about the
refusal of the Supreme Court to respect the bedroom rights of
everybody.  This did not translate into a wave of repeal activity
in state capitals, but it did apparently light a fire under the
Tennessee legislature, which replaced the state's sodomy law with
the Homosexual Practices Act, thus decriminalizing heterosexual
sodomy and significantly reducing penalties for homosexual sodomy.
   
Surprisingly, in light of the history and applicability of the
Homosexual Practices Act, the Court of Appeals' rationale for
striking it down was privacy rather than equal protection.  And, in
using privacy doctrine, the court emphasized "spatial" rather than
"decisional" privacy, stressing that the "privacy" of an "adult's
home" had special protection under the Tennessee constitution.
   
Abby Rubenfeld, a Nashville attorney who chairs the American Bar
Association's Section on Individual Rights and Responsibilities and
is a former legal director of Lambda Legal Defense & Education
Fund, was lead attorney for the sodomy challenge, with amicus
participation by Lambda and the ACLU, among other groups.   

With victory achieved in Tennessee, the remaining states with laws
penalizing consensual gay adult sex are: Alabama, Arizona,
Arkansas, Florida, Georgia, Idaho, Kansas, Louisiana, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana,
North Carolina, Oklahoma, Rhode Island, South Carolina, Texas,
Utah, and Virginia.  However, a decision of the Massachusetts
Supreme Court narrowing the application of that state's law banning
"unnatural and lascivious acts" (oral sex) suggests that laws
against consensual adult sex in Massachusetts are unenforceable,
and a decision of the Texas court of appeals denied review by the
state's supreme court suggests that the Texas sodomy law may
likewise be unenforceable.  (But see the report below on City of
Sherman v. Henry, a new Texas Supreme Court case that appears to
follow Bowers v. Hardwick in construing Texas privacy doctrine.)  

An appeal is currently pending from a trial court ruling striking
down the Montana sodomy law. A.S.L.
   
LESBIAN/GAY LEGAL NEWS  

Supreme Court Ruling on Cable Restrictions May Endanger Gay
Programming
   
In a decision that has important ramifications for the lesbian and
gay community, the U.S. Supreme Court has ruled that cable system
operators do have the right to control the nature of the
programming on leased access channels, and can refuse to show
"patently offensive" sex-related materials.  Denver Area
Educational Telecommunications Consortium, Inc. v. Federal
Communications Commission, 1996 WL 354027 (June 28).  The Court
examined three provisions of the Cable Television Consumer
Protection and Competition Act of 1992 (Act).  The provisions apply
to programs broadcast over cable on both leased access channels
(the 10-15% of a cable system's channels that a system's operator
is required to reserve for commercial lease by unaffiliated third
parties) and public access channels (those that local governments
have required cable operators to set aside in return for permission
to install cables under city streets and to use public rights-of-
way).
   
Until 1992, federal law prohibited cable system operators from
exercising editorial control of any program broadcast over either
leased or public access channels.  In 1992, Congress passed this
Act in an effort to control sexually explicit programming,
especially from children's access.  Two provisions, sections 10(a)
and 10(c), essentially permit a cable system operator, who
typically owns a physical cable network used to convey programming
over several dozen cable channels, to prohibit the broadcasting of
programming that the operator "reasonably believes describes or
depicts sexual or excretory activities or organs in a patently
offensive manner," with sec. 10(a) applying to leased channels and
sec. 10(c) to public access channels.  The third provision, sec.
10(b), applicable only to leased channels, requires programmers to
inform cable operators if a program would be indecent as defined by
Commission regulations, and then requires operators, should they
decide to permit their broadcast, to place such material on a
single channel and to block it unless a subscriber requested access
to the channel in writing, with an allowable 30-day lag between a
subscriber's request and the operator's enforcement of the request.  

The U.S. Court of Appeals for the D.C. Circuit held, en banc, that
all three sections of the Act were consistent with the First
Amendment.  56 F.3d 105 (1995).  The Supreme Court upheld sec.
10(a) but struck down sections 10(b) and (c).
   
The Petitioners made several arguments why none of these sections
is valid.  (1) Cable system operators have considerably more power
to "censor" program viewing than do broadcasters because
communities typically have only one cable system linking
broadcasters and other program providers with the community's
subscribers.  In fact, the concern about system operators' exercise
of this considerable power originally led the government to insist
that operators provide leased and public access channels free of
operator editorial control. (2) As to leased channels, cable
operators' speech interests are relatively weak.  They act less
like editors and more like common carriers such as telephone
companies.  (3) The provisions are analogous to constitutionally
forbidden content-based restrictions upon speech that takes place
in "public fora" such as streets, parks, or buildings dedicated to
open speech and communication.  (4) The legal standard of "patently
offensive" is unconstitutionally vague.   

The Court in general disagreed with the first and fourth
contentions and no majority agreed with either the second or third.  

Although Justices Kennedy and Ginsburg thought that cablecast was
analogous to a public forum, and although the Chief Justice and
Justices Thomas and Scalia thought that cable operators should be
treated analogously to newspaper publishers, a plurality of the
Court was unwilling to apply existing First Amendment standards
developed by the Court in other contexts to this new, and still
developing, area of technology.  The plurality thus did not
analogize cable programming to broadcast media, common carriers, or
bookstores.  They also pointedly refused to answer questions such
as what is the extent to which private property can be designated
a public forum, whether public access channels are a public forum,
whether the Government's viewpoint-neutral decision to limit a
public forum is subject to the same scrutiny as a selective
exclusion from a pre-existing public forum, whether exclusion from
common carriage must for all purposes be treated like exclusion
from a public forum, and whether the interests of the owners of
communications media always subordinate the interests of all other
users of a medium.  Instead, the plurality opinion and other
justices in their concurrences relied on FCC v. Pacifica
Foundation, 438 U.S. 726 (1978), the decision that held that radio
broadcasts of "indecent speech" during daytime hours are
sanctionable because children are likely to be listening, as a
"guidepost" (to use Justice O'Connor's term) in deciding the issues
at hand.

Probably the easiest provision for the Court to analyze was sec.
10(b).  The Court held, in the only majority opinion of the
decision, that sec. 10(b) violated the First Amendment for several
reasons.  Justice Breyer delivered the holding that the "segregate
and block" requirements have obvious speech-restrictive effects for
viewers, in part because programmers could not broadcast to viewers
who select programs day by day, and because viewers who subscribed
to a "patently offensive" program might be concerned that their
reputations could be damaged if the subscription list for that
program was somehow disclosed.  Although the Government argued that
the "segregate and block" requirements were the least restrictive
means of realizing the compelling interest of protecting children
from viewing such materials, the Court held that the provision was
not narrowly tailored to achieve this end.  That Congress has
recently amended the law to include requirements that cable
operators scramble or block sexually-oriented programming on
unleased channels, honor subscribers' requests to block any or all
programs on any channel to which they do not wish to subscribe, and
require future televisions to have the V-chip that would
automatically identify and block sexually explicit or violent
programs, reveal the existence of significantly less restrictive
provisions than are present in sec. 10(b).
   
A majority of justices also found that sec. 10(c), allowing
operators to decide whether or not to broadcast programs on public
access channels, was unconstitutional, although for varying
reasons.  Justice Breyer, joined by Justices Stevens and Souter,
stated that there were four reasons for finding the provision
violative and unnecessary.  (1) Historically, cable operators have
not exercised editorial control over public access channels; thus
sec. 10(c) does not restore to cable operators any editorial rights
they once had and the countervailing First Amendment right of
programmers is much diminished.  (2) Programming on public access
channels is normally subject to complex supervisory systems
composed of both public and private elements; it is therefore
likely that the protection of children has already been addressed.  

(3) The existence of a system to encourage and secure programming
considered valuable by that community makes it more likely that a
"cable operator's veto" would erroneously exclude borderline
programs that should be broadcast.  (4) The government failed to
show that there exists a significant enough problem of patently
offensive broadcasts seen by children over public access channels
to justify sec. 10(c)'s restriction.
   
Justice Kennedy, joined by Justice Ginsburg, concurred with the
judgment as to sec. 10(c), although because they analyzed public
access channels as a type of public forum, they applied a strict
scrutiny analysis because the section potentially excludes speech
from the forum based on its content.  Under their analysis, neither
sec. 10(c) nor sec. 10(a) passes muster; neither provision is
narrowly tailored to serve the interest of protecting children, but
instead impermissibly infringes on the rights of programmers and
viewers, citing Sable Communications v. FCC, 492 U.S. 115 (1989)
(indecent commercial telephone messages, i.e., "dial-a-porn," held
to be protected speech).   

Of concern here is the holding by the Court that  15 10(a) is
consistent with the First Amendment.  The provision states, "This
subsection shall permit a cable operator to enforce prospectively
a written and published policy of prohibiting programming that the
cable operator reasonably believes describes or depicts sexual or
excretory activities or organs in a patently offensive manner as
measured by contemporary community standards."

In a plurality opinion, Justice Breyer, joined by Justices Stevens,
O'Connor, and Souter, concluded that sec. 10(a) does not impose
unnecessarily great restrictions on speech.  Justice Breyer
"closely scrutinized" the provision and found that leased
programming does not have the same four characteristics, enunciated
above, that make public access programs unique and that
necessitated the invalidation of sec. 10(c).  He concluded that the
problem in sec. 10(a) that Congress attempted to address, namely
that of protecting children from seeing sexually explicit programs,
was "remarkably similar" to that in question in Pacifica.  In that
case, the Court held that a governmental ban of a radio broadcast
of "indecent" materials was constitutionally permissible.  Breyer
reasoned that cable, like radio, is very accessible to children; in
the phrase used in Pacifica, it is a "uniquely pervasive presence
in the lives of all Americans." Furthermore, similar to radio,
patently offensive material on cable stations, if not regulated,
can confront the citizen in the privacy of the home with little or
no prior warning.  The plurality opinion found that sec. 10(a)
addressed these problems and kept a balance between the competing
concerns of programmers and operators.  In addition, the plurality
found that the "permissive" nature of sec. 10(a) means that it is
likely to restrict speech less than, not more than, the ban in
Pacifica.  Although it removes a restriction as to some speakers,
i.e., the cable operators, because there is no outright ban,
operators have the flexibility to rearrange broadcast times better
to fit the desires of adult audiences while lessening the risks of
harm to children.  The plurality conceded that the provision "does
create a risk that a program will not appear," but concluded that
"that risk is not the same as the certainty that accompanies a
governmental ban." The opinion admitted that sometimes operators
will not rearrange or reschedule but may indeed ban programming.  

This is justified however, in that the same could be said of
Pacifica's ban; in practice the FCC's daytime broadcast ban could
have become a total ban on "indecent" programming.   

Justice Breyer's plurality opinion also addressed whether the
definition of "patently offensive" is unconstitutionally vague,
allowing cable system operators too broad an authority.  He found
that the language of the definition is similar to the standard of
obscenity established in Miller v. California, 413 U.S. 15 (1973).  

Miller defines obscene sexual material in terms of (a) whether the
average person, applying contemporary community standards would
find that the work, taken as a whole, appeals to the prurient
interest, (b) whether it depicts or describes, in a patently
offensive way, sexual conduct specifically defined by applicable
state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.  The
Breyer plurality concluded that cable operators' program-screening
authority would extend only to the kind of sexually explicit
materials that would be found obscene under Miller.  Thus, the
opinion stated, the statute aims at pictures of "oral sex,
bestiality, and rape" and not at scientific or educational
programs, unless done with a "highly unusual lack of concern for
viewer reaction."  Breyer further reasoned that a term such as
"patently offensive" is determined by context (the kind of
program), degree, and the time of broadcast:  what is offensive
late at night is a narrower category because the audience viewing
it is basically adult.  He did concede that the statute's
protection against overly broad application is "somewhat
diminished" by the fact that it permits a cable operator to ban
programming he or she "reasonably believes" is patently offensive.  

In a rather odd justification, he explains that the "reasonable
belief" qualifier seems designed to provide a legal excuse for the
operator's "honest mistake" and prevents unnecessary liability for
at least that one "mistake."  Additionally, "reasonableness" will
supposedly constrain the discretion of the cable operator, as its
actions would have to be consistent with past actions and with
public access standards.   

Despite the assurances from the Court, the upholding of sec. 10(a)
is worrisome.  Under it, for instance, cable systems operators
could exclude lesbian and gay programming from leased access
channels so long as they have a "reasonable belief" that it is
offensive within the meaning of the statute.  Such a practice could
only be challenged by the program producer bearing the expensive
and time-consuming burden of a lawsuit.  In the long run, lesbian
and gay programming, and viewers, may suffer.  J.H.
   
Second Circuit Orders New Trial in Military Test Case; House Votes
to Reinstate Old Ban
   
A unanimous panel of the U.S. Court of Appeals for the 2nd Circuit
ruled July 1 in Able v. United States, 1996 WL 391210, that
District Judge Eugene Nickerson had inappropriately dismissed a
challenge to 10 U.S.C. sec. 654(b)(1), the subsection of military
regulations requiring the discharge of any service member who
engages in homosexual acts and cannot prove, in effect, that he or
she does not have a homosexual orientation (the "Acts Provision"),
on standing grounds.  At the same time, the panel disagreed with
Nickerson's ruling that sec. 654(b)(2), which requires the
discharge of anybody who indicates by word or deed that he or she
is homosexual unless they can show that they do not have the
"propensity" or intention to engage in homosexual acts (the
"Statements Provision"), violates the 1st Amendment and Equal
Protection.  However, the court did not uphold the
constitutionality of this provision, rather finding that its status
hinges on the constitutionality of sec. 654(b)(1).  Thus,
Nickerson's decision was vacated and the entire matter remanded for
retrial.
   
Nickerson's decision in Able, 880 F.Supp. 968 (E.D.N.Y. 1995), was
actually appealed by both sides, and the 2nd Circuit's opinion, by
Judge John M. Walker, gives something both to appellants and cross-
appellants.  More significantly, it keeps the case alive by
shifting the focus to a different theoretical question as to which
there is much less in the way of contrary precedent: Does it
violate the Equal Protection clause for the military to treat
homosexuals and heterosexuals differently with respect to the
commission of homosexual acts?  By passing reference, Walker seemed
to indicate that Romer v. Evans may be relevant to answering the
question.
   
After clearing away the procedural underbrush thrown up by the
government's contention that the plaintiffs should first have
exhausted internal military procedures before challenging the
policy, Walker turned to Nickerson's dismissal of the challenge to
654(b)(1), the Acts Provision.  Nickerson found that none of the
plaintiffs had standing because none of them alleged that they had
engaged in the forbidden conduct.  Furthermore, he argued that it
was entirely speculative as to whether any of the plaintiffs would
find a third person with whom to engage in such conduct in the
future.  (Not based on the news photos we saw!)  And Nickerson
argued that plaintiffs themselves had "narrowed" the focus of the
case to their challenge to 654(b)(2), the Statements Provision.   

Walker found all of these argument unavailing, pointing out that
the "injury in fact" required to find standing was the express
unequal treatment of the statute and implementing Defense
Department Directives as between homosexuals and heterosexuals.  

"Plaintiffs' equal protection challenge to sec. 654(b)(1) is that
homosexuals are being illegally discriminated against because the
military punishes sexual acts differently, depending on whether
they are engaged in by same sex or opposite sex partners. Under the
circumstances of this case, we believe that the standing
requirement is met."  Walker also noted that plaintiffs had not
voluntarily narrowed the focus of the case; rather, their suit
papers had necessarily focused on 654(b)(2) prior to trial because
that provision was selected by Nickerson as the basis for interim
relief, which was then litigated to the 2nd Circuit.  As the 2nd
Circuit held further on in this decision, resolution of the
constitutionality of 654(b)(1) was necessary in order to determine
the validity of 654(b)(2), so Nickerson could not escape that issue
so easily.
   
Turning to the Statements Provision, the court rejected Nickerson's
finding of free speech and equal protection violations based on the
theory of an inappropriate content-based regulation of speech.  

Here the court was following a well-trod path, as prior Defense
regulations had similar wording and had received relatively
consistent treatment in a variety of appellate decisions, holding,
in sum, that discharging somebody for saying they are gay places
only an incidental and justifiable burden on speech because it is
really aimed at conduct that the government (for argument's sake,
this point to be decided on remand) may prohibit.  Stated
otherwise, if the Acts Provision is valid, then the Statements
Provision follows naturally, provided one accepts (as this court
does) the validity of employing a rebuttable presumption that those
who self-identify as gay will have a propensity to engage in
homosexual conduct.
   
At this point, Walker took issue with those who have criticized the
Defense Department's interpretation of 654(b)(2) in its Directives.  

The Defense Department (perhaps adhering more to the spirit of
President Clinton's July 1993 policy statement than to the intent
of Congress) construed 654(b)(2) to mean that the policy is not
intended to exclude all homosexuals from military service, but only
those who are not celibate or are likely to engage in homosexual
conduct.  Critics (including a plurality of judges in Thomasson v.
Perry, 80 F.3d 915, 932-33 (4th Cir. 1996)) argue that the word
"propensity" signalled Congress's intent to exclude all
homosexuals, treating that word as meaning, in effect, homosexual
orientation.  The Defense Department, by contrast, construes
propensity to mean a likelihood that the individual will engage in
such conduct.
   
Walker found that the Defense Department's meaning is a reasonable
interpretation of the statutory language, and thus that 654(b)(2)
is not on its face a status-based exclusion, but is rather
reasonably tied to conduct.  This brings the inquiry full circle.  

If Congress has acted unconstitutionally in its prohibition of
conduct in the Acts Provision, that places in doubt the Statements
Provision as well.  Thus, despite the court's decision to vacate
Nickerson's ruling on the merits of the challenge to 654(b)(2), the
court did not uphold its constitutionality.  Rather, it held that
a different theory must be used on remand to test its
constitutionality, a theory requiring that first the issue of
654(b)(1) be decided on the merits.
   
A major portion of the opinion is devoted to explaining why the
court is unpersuaded by Nickerson's analysis of the Statements
Provision issues.  The discussion is heavily informed by the case
law concerning limitations on 1st Amendment rights in the military
and judicial deference to military judgment.  On the other hand,
however, it is clear that the court was concerned about the
possible significance of Romer in dealing with both provisions.  In
declining to decide the 654(b)(1) issue itself rather than
remanding for a new trial, Walker emphasized not only the prudence
of having the trial court make a record and initial findings on the
issue, but also alluded to the need to consider the issue in light
of Romer: ". . . the plaintiffs have raised important
constitutional questions as to the appropriate level of scrutiny to
be applied to equal protection claims made by homosexuals, see
Romer v. Evans, 1996 WL 262293 (U.S. May 20, 1996), and how any
such test should be applied in the military context."
   
Thus, as Matt Coles of the ACLU, who argued the plaintiffs' case to
the appeals court, emphasized in a statement after the decision,
the court's ruling should not be construed as a judgment on the
merits, but rather a suspension of judgment pending a new trial
that will focus on issues that were inappropriately excluded from
consideration at the first trial.  The challenge is still alive,
and may have added impetus as a result of Romer.  Signalling its
own continuing interest in the case, the panel (which included
Judges Feinberg and Leval in addition to Walker) ended its decision
as follows: "In the event of any further appeal in this matter, the
clerk is directed to refer the appeal to this panel if
practicable."
   
This test case was brought jointly by the ACLU Lesbian & Gay Rights
Project and Lambda Legal Defense & Education Fund.  Coles and
Lambda's Beatrice Dohrn are lead counsel, supported by staff
attorneys from both organizations and cooperating attorneys from
private practice.   

Two related judicial military developments occurred at about the
same time as the 2nd Circuit's decision: First, Paul Thomasson, who
lost his challenge in the 4th Circuit's en banc ruling earlier this
year, filed a certiorari petition with the Supreme Court.  Second,
Dirk Selland, whose own challenge is still pending at the 4th
Circuit, resigned from the Navy to attend law school at the
University of Baltimore.  Selland concluded an agreement with the
government, however, that his resignation should not be construed
to moot his own lawsuit, which will continue.  Virginian-Pilot,
June 30.   

Meanwhile, in Congress, Representative Robert Dornan (R-Cal.), the
most vocally and legislatively active foe of lesbian and gay
rights, succeeded in getting the House of Representatives to
include two anti-gay provisions in the new Defense Appropriations
Bill for 1997: a provision reinstating the absolute ban on military
service by gays and requiring that all enlistees be questioned
about their sexual orientation, and a provision requiring that any
military member who tests HIV+ be medically discharged within two
months.  Neither provision is in the Senate version of the bill,
and it was hoped that both would be deleted in conference
committee.  This spring, a provision in the 1996 appropriations
measure mandating discharge of HIV+ service members was quickly
repealed in subsequent legislation, raising hope that the new
discharge provision will have a short life.  On the other hand, the
"don't ask, don't tell" policy adopted by the Clinton
Administration in 1993 and codified by Congress is widely
unpopular, and it seems likely that a majority of the Republican-
dominated Senate may agree to legislative reinstatement of the
absolute ban.  A.S.L.
   
7th Circuit Rejects Claims of Juror Bias
   
Rejecting claims of juror bias against African-Americans and
homosexuals, the U.S. Court of Appeals for the 7th Circuit affirmed
a lower court's denial of a writ of habeas corpus to Robert L.
Owens, a gay African-American inmate serving a life sentence for
murdering a laundry superintendent in the Indiana State Prison in
December 1976.  In Owens v. Hanks, 1996 WL 362249 (Jun. 25), the
court rejected Owens' contention that he was denied a fair trial
because several jurors, at voir dire and a later post-conviction
hearing, had voiced intolerant views of Blacks and homosexuals.  

Even though the jurors in question expressed biases,  the court
maintained that they could fulfill Owens' due process requirement
of rendering him a fair hearing.  

The court reached its conclusion despite statements from one juror
that homosexuality is morally wrong and from another that she does
not approve of homosexuality and would be less likely to believe a
homosexual. A third juror admitted that he felt uneasy around black
people and he would promote a white applicant over an equally
qualified black person.  Owens had not challenged these jurors for
cause.  The court concluded that he had not been deprived of a fair
trial, based on the jurors' pledge that they would be able to
disregard their prejudices and arrive at an impartial verdict.  The
court further asserted that the jurors' anti-gay biases were, in
effect, negated because both sides presented homosexual witnesses.  

The court also rejected Owens' claims of prosecutorial misconduct
and ineffective assistance of counsel. C.W.
   
Colorado Supreme Court Finds Sexual Orientation Covered by Rape
Shield Law
   
The Colorado Supreme Court ruled in People v. Murphy, 1996 WL
307283 (June 10) that Colorado's Rape Shield Statute extends to
evidence of the victim's sexual orientation. It also held that the
fact that the victim stated that he had a wife and child did not
create the inference that he is heterosexual, and thus did not open
the door to rebuttal testimony in an attempt to prove his
homosexuality.  

The respondent, Michael Murphy, met D.Z. at a grocery store and the
two men discovered that they lived in the same apartment complex.  

When they encountered each other outside the complex on August 30,
1990, Murphy asked D.Z. if he would like to go to Murphy's
apartment for a beer. At his apartment, Murphy handcuffed D.Z. and
then, according to D.Z.'s testimony, perpetrated "sadistic
homosexual acts" against D.Z. without D.Z.'s consent. Murphy was
charged with first degree sexual assault, third degree assault, and
false imprisonment. In a pretrial motion, Murphy stated in defense
that his encounter with D.Z. was consensual, and moved to examine
D.Z. on"issues relating to his sexual orientation." Murphy wanted
to pose questions "pertaining to previous homosexual contacts with
persons other than Murphy." Murphy contended that the fact that
D.Z. had previous homosexual encounters made the defense of consent
more probable. The motion judge denied Murphy's motion to introduce
past sexual conduct, but left for the trial judge to determine
whether sexual orientation could be introduced.  

At trial the prosecutor stated in his opening statement that D.Z.
was married and had one child. Further, D.Z. testified that his
encounter with Murphy was "sick and abnormal." The judge ruled that
the prosecutor's statement and D.Z.'s testimony did not open the
door for Murphy to examine D.Z. about his sexual orientation and
previous sexual contacts.  Murphy testified at trial that D.Z. and
Murphy had discussed Murphy's interest in rough sex and that D.Z.
agreed to try some bondage activities.  Murphy then called a
psychotherapist who testified that some of his homosexual clients
are married and have children, and that they often seek to deny
their homosexual tendencies by denouncing homosexuals. The jury
found Murphy guilty of one count of first degree assault, as well
as third degree assault and false imprisonment.  The court of
appeals reversed Murphy's conviction, holding that although the
Rape Shield Statute bars evidence of a rape victim's prior sexual
conduct, the trial court erred by refusing to allow him to present
expert testimony about the behavior of homosexual men with sexual
identity conflicts who engage in homosexual conduct.  

The Colorado Supreme Court, in an opinion by Chief Justice Vollack,
first considered whether the Rape Shield Statute bars evidence of
a rape victim's sexual orientation. The court began by noting that
the Statute bars evidence of sexual conduct, and does not refer to
sexual orientation. It stated that the basic purpose of the statute
was to prevent victims from "humiliating fishing expeditions" into
their past sexual conduct, unless a showing is made that the
evidence is relevant to the case.  The court found that just as
other courts realized that past sexual conduct may have no bearing
on the issue of consent, similarly, a rape victim's sexual
orientation may have no bearing on the issue of consent.  Thus the
court concluded that the Rape Shield Statute precludes evidence of
sexual orientation.  

The court then turned to the issue of whether the prosecution
opened the door to evidence that D.Z. is homosexual. The court of
appeals held that the prosecution opened the door to such evidence
through testimony that the victim had an ex-wife and child, and
denials of the victim made of homosexual preference. The Colorado
Supreme Court disagreed that this testimony opened the door to
rebuttal testimony from the defense.  It found that the testimony
the court of appeals relied upon was not sufficient for the defense
to introduce evidence of the victim's sexual orientation or past
sexual conduct.  Further, the defense made an insufficient offer of
proof and thus did not meet the requirements of the Rape Shield
Statute.  Murphy contended that D.Z. created the inference that he
was heterosexual when he testified that he had been married and had
a child. Thus, Murphy sought to rebut the inference of D.Z.'s
heterosexuality.  However,in twisting Murphy's defense against him,
the court stated that Murphy did rebut the inference of D.Z.'s
heterosexuality through the testimony of the psychotherapist, who
stated that it is not uncommon for homosexuals to be married and
have children.  Thus, the court stated, Murphy was permitted to
rebut any assumption that a married man could not be homosexual,
without having to introduce evidence of D.Z.'s sexual orientation
or past sexual conduct.  

The court went on to state that D.Z.'s testimony about the forced
acts did not create an inference that D.Z. was not interested in
homosexual activities, but rather that D.Z. objected to sadistic
acts.  The court concluded that when D.Z. testified that Murphy was
a "sick bastard," this did not refer to Murphy's sexual
orientation, but rather to Murphy's proclivity to handcuff D.Z. to
a wooden restraining board. Finally, the court held that simple
protests to being sexually assaulted cannot be sufficient to open
the door to evidence of a victim's sexual orientation or past
sexual conduct.  The court concluded that the defense made an
insufficient offer of proof and did not meet the requirements of
the Rape Shield Statute.  

Murphy wished to introduce evidence that D.Z. and a young man had
been seen in bed together. However, the statute mandates that when
a defendant wants to introduce evidence of a victim's past sexual
conduct, he must make a specific offer of proof to the relevancy of
the evidence. The court found that the fact that D.Z. was in bed
with another man only hinted at homosexual conduct, stating that it
was unclear what the two men were doing in bed together.  As the
evidence was speculative, it was inadmissible under the statute.
Thus the judgment of conviction was reinstated against the
defendant, as the court held that the Rape Shield Statute bars
evidence of the victim's sexual orientation, and further found that
the prosecution did not open the door to evidence of the victim's
sexual orientation.  P.T.
   
Florida Appeals Court Holds Harm To Children From Mother's Lesbian
Lifestyle Cannot Be Presumed
   
Finding that Circuit Judge Jere Tolton had inappropriately taken
"judicial notice" of the proposition that allowing young children
to be in the custody of their bisexual mother who was engaged in a
lesbian relationship would be harmful to the children, the Florida
Court of Appeals, 1st District, remanded the matter of Maradie v.
Maradie, 1996 WL 392958 (July 16) for a new determination of
custody.
   
John and Valerie Maradie were married in 1991 and had two children
before Valerie filed for divorce in 1993.  Pending the divorce
judgment, the children spent alternate weeks with each parent.  

During the divorce trial, a court-appointed psychologist who had
examined the children and interviewed the parents testified that he
could find no ill effects from the childrens' exposure to their
mother's lesbian relationship, and knew of no research findings
documenting that exposure to such a relationship was necessarily
harmful.   

However, the Judge Tolton, in awarding custody to the father,
stated:  "In deciding the child custody issue, the only factor
under F.S. 61.13 that seems to have particular significance is
subsection (f) regarding the moral fitness of the parties. The
testimony reveals that Mrs. Maradie, with her homosexual lover,
spend nights and sleep together in the same bed, kiss, hold hands
and speak in terms of endearment in front of the child.  The
possibility of negative impact on the child, especially as she
grows older and reaches her late pre-teen and early teen years, is
considerable.  The Court does not have to have expert evidence to
reach this conclusion, but can take judicial notice that a
homosexual environment is not a traditional home environment, and
can adversely affect a child.  To say that this cannot be
considered until there is actual proof that it has occurred is
asking the Court to abdicate its common sense and responsible
decision-making endeavors."
   
In a per curiam decision, the district court of appeal determined
that Judge Tolton had misapplied the Florida statute governing when
facts can be established by judicial notice.  In effect, the
statutory provisions authorize the use of judicial notice (rather
than fact-finding based on record evidence) only when the issue is
truly a factual matter beyond dispute and well-established as a
matter of common knowledge that could easily be confirmed by
consulting authoritative reference works.  The court found that the
impact on children of exposure to a mother's lesbian lifestyle was
not the sort of issue that could be determined in this manner.  

"This conclusion is clear from the testimony of the court-appointed
psychologist. . ., the only evidence in the record on this point,"
observed the court, which also pointed out that Judge Tolton had
first proposed to use judicial notice in this way in his written
custody order, thus depriving Mrs. Maradie of "the opportunity to
dispute the matters which the trial court judicially noticed."  The
court also held that one could not presume that a mother engaged in
a lesbian relationship was morally unfit for custody, without
record evidence of a harmful effect on the children.
   
Although the court found that other evidence in the record might
support the custody award to the husband, "we cannot say that,
absent the improperly judicially-noticed matters, the trial court
would have made the same custody determination," so the matter was
remanded, noting that the trial court could take additional
evidence on the issue of fitness before rendering an award.
   
Mrs. Maradie was represented by Michael Webster of Shalimar,
Florida, and staff attorneys from the National Center for Lesbian
Rights.  A.S.L.
   
3-Judge District Court Strikes A Blow For Freedom of Speech on the
Internet
   
In ACLU v. Reno, a decision rightly heralded as a major victory for
civil liberties, a three-judge federal district court acted
unanimously in preliminarily enjoining two sections of the
Communications Decency Act of 1996 after finding them facially
unconstitutional.  1996 WL 311865 (E.D.Pa., June 11).  Invalidated
were 47 U.S.C. section 223(a), prohibiting the electronic
transmission of "indecent" materials, and 47 U.S.C. section 223(d),
prohibiting the electronic transmission of "patently offensive"
materials.  Because the government concurred with the plaintiffs
that newly-amended 18 U.S.C. section 1462(c) was unconstitutional
in prohibiting the electronic transmission of information on
abortion, the government pledged not to enforce that section, and
the plaintiffs did not seek a preliminary injunction against its
enforcement.  Each of the judges wrote an opinion.
   
Third Circuit Chief Judge Dolores Sloviter applied a
straightforward freedom of speech analysis.  Since even indecent
and patently offensive speech is entitled to constitutional
protection, and the challenged provisions were unambiguously
content-based restrictions, they could be upheld only if they were
narrowly tailored to support a compelling government interest.  The
shielding of minors from indecent materials is a compelling
government interest, although there is some question whether mature
minors required that protection.  Because compliance with the
statute would cause Internet users to censor speech that adults
could otherwise receive, thereby abridging adults' right to free
speech, this in itself presumably rendered the statutory
prohibitions overbroad.  Other factors corroborated the CDA's lack  

of narrow tailoring: the statutory defense of the use of reasonable
means to restrict minors' access was illusory, since there was no
existing technology that could accomplish this without prohibitive
cost, and the penalty imposed by the statute was criminal, rather
than administrative, thus being of maximal severity.
   
Judge Dalzell also approached the matter as a free speech case,
though his tack was somewhat different.  It could not be assumed,
he declared, that the government had the power to regulate speech
over the Internet.  Thus, the initial question was whether the
government had such power, not whether the power had been exercised
constitutionally.  The different forms of speech -- print, the
telephone, cable and broadcast television, among them -- were
subject to varying kinds and levels of governmental restriction.  

The Internet, "as the most participatory form of mass speech yet
developed," deserves "the highest protection from governmental
intrusion."  Thus, the government has no power at all to regulate
indecency on the Internet, asserted Dalzell.  Since "the strength
of our liberty depends upon the chaos and cacophony of the
unfettered speech the First Amendment protects," Judge Dalzell
"without hesitation" held the challenged provisions facially
unconstitutional.
   
Importantly, Dalzell concluded that FCC v. Pacifica  Foundation,
438 U.S. 726 (1978), holding constitutional the FCC's regulation of
indecency in the broadcasting medium, had no application to
regulation of the Internet.  Due to broadcasting's uniquely
pervasive presence and accessibility to children, as well as the
scarcity of channels, broadcasting received uniquely limited First
Amendment protection.  The other judges concurred in this
determination.
   
Judge Buckwalter adhered to the view, expressed in his earlier
opinion issuing a TRO in the case, that the CDA was
unconstitutionally vague, although he extended his conclusion to
encompass both the "indecent" and the "patently offensive"
provisions.  (His earlier opinion reached this  

conclusion only with respect to the former provision.)  The CDA
imposed criminal sanctions for its violation, yet the challenged
provisions failed to provide fair warning of the conduct that was
prohibited.  For example, it was impossible for an Internet user to
know in advance whose community standards would determine whether
speech was indecent or patently offensive.  This violated the right
to due process under the 5th Amendment, which is as important to
our body politic as was free speech.  Judge Sloviter concurred in
this void-for-vagueness holding, though Dalzell, reasoning that
void-for-vagueness challenges to obscenity prohibitions had been
rejected, and that indecency was a subset of obscenity, disagreed.  

The statute provides for direct appeal to the Supreme Court, which
may come next term.  R.M.
   
Colorado Appeals Court Denies Adoption Petitions by Lesbian Mothers
   
In Colorado, two cohabiting lesbian mothers, each with a natural
child, petitioned the court to adopt the other's child in order to
provide two legal mothers to the children.  In essence they sought
the rights and duties associated with a "stepparent adoption" for
the other's child, while retaining parental rights over their own
natural children.  They were denied at the district court level and
again on appeal in In re Adoption of: T.K.J. and K.A.K, 1996 WL
316800, 22 Fam. L. Rep. (BNA) 1379 (June 13).
   
Attempting to persuade the court to broaden the definition of
"parent," the mothers presented several arguments as to how
Colorado's statutory scheme could include their situation.  

However, the Court of Appeals was not persuaded by any of them.  

Writing for the court, Judge Metzger held that the "mandatory
language" of the statute says a child is "available" for adoption
"only" when certain conditions exist, and that certain outcomes
"shall" result from a final adoption decree.  The statute as
written limits adoptions to situations where the parents no longer
have legal parental rights, and to when the person adopting is
married to one of the natural parents, i.e., a stepparent.  Metzger
refused to read any ambiguity into the language, finding that these
express limitations of the statutes "must be read to exclude from
the statute's reach all other possible exceptions not enumerated."  

The mothers argued fruitlessly that the purpose of the "stepparent
adoption statute" is to insure proper notice to a noncustodial
parent whose parental rights would be terminated by a stepparent
adoption, and that it should not be construed to prohibit other
forms of adoption.  They also cited the statutory term "spousal
equivalent" found in the recodification of the Children's Code and
defined as "a person who is in a family-type living arrangement
with a parent and who would be a stepparent if married to that
parent."  They argued that their situation is such that each should
be characterized as a spousal equivalent.  The court disagreed,
stating that since the term does not appear in any of the statutes
relating to adoption, it was unwilling to rely on the concept in
the context of adoptions.  

The mothers also argued that a hearing should have been held to
determine the best interests of the children, arguing that this
statutory concept overrides all other provisions of the adoption
statutes.  Metzger disagreed, reasoning that because the children
were not statutorily "available" for adoption, there was no need
for a hearing.  The court also held that the lack of a hearing was
not a violation of the children's due process rights; it found no
liberty interest involving a child's care to exists between a child
and a potential adoptive parent.  Likewise, it found no violation
of a property interest; the mothers could not show that they had a
legitimate claim of entitlement to the adoptions since the children
were not available for adoption under Colorado law.
   
Finally, the mothers contended that the lower court's dismissal
violated the children's constitutional rights to equal protection.  

They argued that because the lower court's application of the
adoption statute distinguished between children based on their
parents' marital status -- similar to illegitimacy -- an
intermediate standard of review should be applied.  The court
disagreed, finding that rational basis review was sufficient in
this case, and held that the legislature "may reasonably have
determined that the best interests of the children and the
interests of familial stability would be promoted by limiting
adoptions to situations" enumerated in the statute.   

Metzger suggested that changing social mores should be reflected in
the passage of new laws.  The court reasoned that illegitimate
children are given more constitutional protection in order not to
burden a child for the sake of punishing the illicit relations of
the parents.  However, it found no indication that the adoption
statutes, although they do treat children differently for purposes
of stepparent adoption based on whether the person seeking the
adoption is married to a natural parent of the child, are based on
societal condemnation of two unmarried persons jointly engaging in
the adoption of a child.   

The one bright note in this decision was the special concurrence of
Judge Ruland, who focused on the concept of the best interests of
the child.  The judge questioned why a potential adoptive parent
could not be considered to be in the best interests of a child
simply because the biological parent is not married to the party
who seeks to become an adoptive parent.  Judge Ruland noted the
philosophical inconsistency of the Colorado statute in that, for
instance, it would allow one of the mothers to adopt the other's
child if that child's mother was deceased.  The judge suggested
that in light of the growing incidence of juvenile delinquency, it
would be wise to give support to greater parental guidance
regardless of whether the parents are actually married.  

Furthermore, Ruland noted that other jurisdictions have authorized
adoptions under similar circumstances, based on their being in the
best interests of the children.  The judge concluded with the hope
that the legislature or an appropriate court setting would soon re-
examine the concept.  J.H.
   
Ohio Appeals Court Rules on Dispute Between Lesbian Mother and Gay
Male Sperm Donor
   
In a unanimous ruling issued per curiam, the Ohio Court of Appeals,
1st District, Hamilton County, held that the juvenile court did not
abuse its discretion by denying a lesbian mother's demand that gay
male sperm donor be required to provide child support and medical
expense payments dating back to the birth of her two children.  The
court in Myers v. Moschella, 1996 WL 348194 (June 26), upheld the
juvenile court's entry of an order dating to the sperm donor's
pursuit of parental rights.
   
Margaret Myers, a lesbian university professor then in a long-term
relationship with another women, approached Steven Moschella, a gay
man, in 1985 with a request that he be a sperm donor for her.  

Myers and her partner agreed with Moschella that he would have no
parental responsibilities, but that they would allow their children
to have "a social relationship with the biological father, if that
was possible."  Myers described Moschella's waiver of parental
rights as a quid pro quo for the assumption of full economic
responsibility for raising the children and sole custody of them by
Myers and her partner.  A second child was born under the same
agreement in 1988.  In 1992, after a disagreement developed over
Moschella's visitation, he filed suit for a declaration of
paternity and a visitation order, at which time Myers "abrogated"
her agreement with Moschella and sought child support and medical
expense payments.  The juvenile court entered a support order
against Moschella, dating from the time he filed his suit.  Myers
appealed, seeking a backdating of the support obligation to the
birthdates of the two children.
   
The court noted its controlling precedent, a 1981 case holding that
a biological father's support obligation normally dates from the
birth of the child "in the absence of an affirmative demonstration
of some circumstance which ought reasonably to relieve the father
of this obligation and the child of this entitlement."  The court
found, without any real explanation, that the juvenile court had
not abused its discretion in concluding that the arrangement
between Myers and Moschella provided such circumstances in this
case.  Ruling on a separate aspect of Myers' appeal, the court
found that Moschella was not obligated to cover "extraordinary
medical expenses, including psychological expenses," for the
children.  A.S.L.
   
Kansas Supreme Court Rules Against Phelps' Church in Picketing Case
   
The Kansas Supreme Court refused to vacate a temporary restraining
order concerning picketing by members of the Rev. Fred Phelps'
Westboro Baptist Church, and also refused to find that the trial
judge who issue the order was biased because of his public stand
against homophobic prejudice.  St. David's Episcopal Church v.
Westboro Baptist Church, 1996 WL 339844 (June 21).  In a decision
marked by a lengthy recitation of the litigious history of Phelps
and Westboro, the court rejected all of Westboro's arguments
contending that its free speech and free exercise rights were
violated by the TRO, which sought to protect St. David's Church
from the disruption of its religious services by demonstrators from
Westboro engaged in Phelps' noisy anti-gay campaigns.  (Phelps
makes it a practice to engage in noisy and disruptive picketing of
religious services involving gays - most notably funerals of gay
men who died from AIDS.)  The court noted that St. David's own free
exercise rights were endangered by Westboro's picketing activities,
and that Westboro could communicate its views effectively in
compliance with the TRO pending a full hearing on the merits of St.
David's request for permanent injunctive relief.
   
In this case, Phelps also contended that the trial judge should
have been disqualified because a year prior to granting the TRO he
had been one of many signatories on a newspaper advertisement,
"apparently aimed at Westwood's crusade against homosexuality,"
which stated: "We, the undersigned, offer witness of our belief
that all people have the right to live in dignity, in safety and in
privacy, regardless of age, gender, race, ethnicity, religious
preference or sexual orientation.  We embrace love rather than
hate; safety rather than endangerment, respect rather than
harassment.  Our commitment to these beliefs compels us to create
a community that promotes these values."  The court found that
signing this advertisement did not signify the kind of bias
necessary to disqualify the judge from the case, noting that "the
principles stated in the petition here are general in nature.  

Moreover, the principles stated in the petition signed by Judge
Barbara are principles entirely opposite from those required for a
finding of bias or prejudice, namely, hostile feelings or a spirit
of ill will."  A.S.L.
   
St. Patrick's Day Protesters Back in the Dock
   
The Appellate Term, New York County, has reversed a Criminal Court
Judge's decision to dismiss disorderly conduct charges against
ninety demonstrators who staged a counter-march to protest the
exclusion of the Irish Lesbian and Gay Organization from New York's
St. Patrick's Day Parade.  People v. Arbeiter, NYLJ, June 24, p. 29
(N.Y.App.Term).  Characterizing the circumstances under which it is
appropriate to dismiss an indictment in the interest of justice as
"rare," the court noted that the protesters tied up traffic for
more than an hour and refused to abandon their march at the request
of police.  It also notes that they made no attempt to appeal to
the courts the refusal by the police department to give them a
permit for their counter-march.  However, the court did affirm
Criminal Court Judge Robert Sackett's dismissal of charges of
resisting arrest, over the dissent of Justice Stanley Ostrau, who
differed with the majority's view that a passive lack of
cooperation with arresting officers cannot constitute resisting
arrest.  A.S.L.
   
Missouri Appeals Court Upholds Conviction of Gay-Basher
   
Jeffrey H. Kobel was convicted of second degree assault and armed
criminal action and sentenced to six years in prison after an
incident outside a gay bar in Kansas City where he and several
other men assaulted the bouncer of the bar.  Evidence showed that
Kobel sprayed the bouncer with mace after another man hit the
bouncer on the head with a metal steering wheel bar.   The victim
suffered a cracked rib, considerable bleeding, extensive stitches
and temporarily burning eyes as a result of the attack.  The
sentence was upheld on appeal.  State v. Kobel, 1996 WL 348065
(Mo.App.W.D. June 25).  The appeals court rejected Kobel's argument
that he was just an inadvertent participant in the events and not
part of the group of men who staged the attack.  The court noted
evidence that "all five males displayed a truculent attitude
towards homosexuals by yelling derogatory epithets at the people
congregating outside the bar.  All five males got out of their
vehicles at the same time and quickly crossed the street towards
the bar together as a group.  Both Mr. Kobel and Mr. Anderson
carried objects -- mace and the metal bar, respectively -- which
were then used to assault the victim."  The court also rejected
Kobel's argument on the armed criminal action count that he could
not be held liable for Anderson's use of the metal bar, finding
that Kobel acted as an accomplice of Anderson.  A.S.L.
   
Letter Writers Did Not Defame Homophobic Op-Ed Writer
   
Responses to a homophobic op-ed piece are not defamatory.  Faltas
v. The State Newspaper, 1996 WL 288205 (U.S.Dist.Ct., S.C., May
20).  The Plaintiff, Marie-Therese Assa'ad Faltas, MD, MPH, wrote
an op-ed piece entitled "Sexual Normalcy Wrongly Interpreted in
Previous Studies."  This was published in The State, a Columbia,
South Carolina newspaper published by The State-Record Company.  

The article challenged the validity of the Kinsey Report, which
found that approximately 10 percent of the world's population is
born homosexual.  Dr. Faltas asserted that she was the only medical
doctor in South Carolina who was also a biostatistician and as
such, she was the only person in the state qualified to evaluate
studies of human sexual behavior.  Dr. Faltas' article challenged
Kinsey's methods of gathering and analyzing data.  Dr. Faltas
asserted that the Kinsey result was wrong and the actual percentage
of the population that was born homosexual was less than one
percent.  Dr. Faltas went on to challenge a more recent study that
analyzed the brains of gay men who had died of AIDS.  This study
found a hormone sensitive part of the "gay brain" to be midway
between that found in straight men and women.  Faltas challenged
this study stating that the study did not consider that "gay
subjects are likely to have taken estrogen during their lifetime to
achieve a feminine look and sound."  Faltas went on to assert that
this behavior of taking estrogen changed the brains of gay men.
   
Shortly after the op-ed piece was published, The State published
four letters to the editor in response to the piece.  One of those
letters, written by defendant Chris Riley, read, in part, as
follows: "When she stated that gay men are likely to have taken
estrogen, she offered no statistics to back up her claim and showed
us how much she will lie to suit her agenda.  The study she
espoused as the truth -- the study that claims that only 1 percent
of the population is gay -- did not have a representative
population or scientifically correct questioning method.  Dr.
Faltas views her status as a physician as an opportunity to present
lies as truth."  Another letter read as follows: "I would like to
gently suggest that Dr. Faltas' discourse sounded more like the
ranting of a Middle-Eastern cleric than the reasoning of a
scientist.  By printing that discourse, I believe The State did a
disservice to its readers.  I feel as if the World Trade Center car
bomb exploded on the editorial page.  Let's leave the irrational
hate mongering in the Middle East.  We don't need that in Columbia,
South Carolina."  The other two letters were similar in content.
   
After publication of the letters, Dr. Faltas demanded to have an
opportunity to respond to these letters which she considered
libelous.  The State indicated that it would not publish another
op-ed piece but would be happy to publish a letter to the editor by
Faltas if it was limited to 250 words, the limit on all letters to
the editor.  She declined.   

Shortly after publication of the op-ed piece and responding
letters, Faltas was demoted and eventually terminated from the
University of South Carolina Medical School.  One faculty member
indicated that part of their decision was based on the article
which showed Faltas' writing to be irresponsible.  Faltas sued the
University, claiming that she was terminated for exercising her
First Amendment rights.  That suit is still in litigation.
   
Faltas filed this action against The State, Chris Riley, and
several employees of the newspaper, alleging that she was defamed
by the printing of Riley's letter.  She further alleged several
tort claims against The State, including reckless endangerment,
intentional infliction of mental suffering, tortious interference
with employment, and conspiracy.   

On defendants' motion for summary judgment, Judge Anderson found
that Faltas was a limited purpose public figure at the time of the
alleged defamation.  Therefore, in order to prevail, Faltas must
prove that the defendants acted with actual malice, i.e. with
knowledge that their statements were false or with reckless
disregard of whether they were false.  The court found that Riley's
letter and the other letters were clearly expressing opinions about
Dr. Faltas rather than making factual assertions about her, and
therefore could not be considered defamatory.  As to the other tort
claims, the court found no rational connection between the
publication of the letters and the injury claimed by Dr. Faltas.  

The court granted defendants' motions for summary judgment and
dismissed the case with prejudice.   

This writer wonders whether Dr. Faltas sees the irony in suing her
former employer for violating her First Amendment rights and then
suing The State for defamation, all arising out of the same
incident.  Dr. Faltas, you cannot have your cake and eat it too.  

T.V.L.
   
8th Circuit Rejects Constitutional Challenge to Treatment Denial
for Transvestite Prisoner
   
In Long v. Nix, 1996 WL 303454 (8th Cir. June 7), the court
rejected Merlin Long's claim that prison officials violated his
rights under the 8th Amendment by refusing to satisfy his requests
for particular treatment for his gender-identity disorder.  Long
has been an inmate since 1964, when he received a life sentence for
"the brutal murder of a woman."  He arrived in prison in full drag,
but state prison officials forced him to change to a standard male
prison uniform.  Over the years, he has sometimes been allowed to
dress as a woman, but has been denied a variety of medical
treatments he requested.  Psychiatric experts retained in
connection with the litigation agreed that Long is not a
transsexual, and thus, the court found, he is not entitled to
certain medical treatments that other courts have held must be
provided to transsexual prisoners.  Ultimately, the court of
appeals agreed with the district court that under the deferential
standard of review used to evaluate 8th Amendment "refusal of
treatment" claims by prisoners, Long had failed to state a
constitutional claim.  There was not deliberate indifference to his
medical needs because the prison followed the advice of psychiatric
experts in dealing with Long.  A.S.L.
   
Federal Appeals Court Rejects Gay Man's Challenge to Prison
Sentence
   
What is the relevance of a defendant's homosexuality in determining
an appropriate prison sentence?  The question was raised by not
answered in an appeal decided by the U.S. Court of Appeals for the
10th Circuit in U.S. v. Belt, 1996 WL 393005 (July 15).  Hoyle E.
Belt, a gay Oklahoman, pled guilty to conspiracy to distribute a
controlled substance in violation of 18 U.S.C. sec. 846.  As part
of his plea agreement, the government agreed to make no
recommendation as to the actual sentence to be imposed, and filed
a motion requesting the court to depart downwards from the
statutory guidelines (which suggested a range beginning with 87
months).   

At the sentencing hearing, Belt's attorney urged leniency based on
three factors: the government's motion for downward departure,
Belt's homosexuality, which it was claimed would subject him to
victimization in prison, and Belt's alleged effective
rehabilitation.  Responding to a question from the court, Belt's
attorney said she would recommend probation, but realizing that
some sentence might be mandatory, she commented that "even should
this Court recommend incarceration. . . a year to a person who is
totally being harassed. . . can seem like an eternity."  The court
turned to the prosecutor and asked what a reasonable downward
departure would be.  The prosecutor, noting he was bound by the
plea agreement not to make a recommendation as to sentence,
nonetheless argued that some sentence should be imposed and pointed
out that probation was not an available sentence for this offense.  

In particular, the prosecutor argued that basing a departure on the
defendant's sexual orientation "can be a very dangerous precedent-
setting factor, and I think it would have terrible results in this
case and in others.  I don't think it would certainly send the
proper message to people who are homosexual, oh, just commit the
crime and cooperate a little bit and the Judge will cut you some
slack because you'll have problems in prison."  The court then
imposed a sentence of 60 months (5 years).   

On appeal, Belt argued that the prosecutor breached the plea
agreement, and urged a remand for resentencing before a different
judge.  In rejecting Belt's appeal, Judge Anderson wrote for the
court that in fact the prosecutor had breached the agreement, but
concluded that the breach was harmless because, as the prosecutor
correctly observed, the statute explicitly rules out probation as
a sentence for this offense, and the term imposed was a substantial
downward departure from the 87-month minimum specified by the
guidelines.  Although the trial judge's order did not include
specific discussion of Belt's argument that his homosexuality and
the vulnerability it would create should be a mitigating factor,
the court found no indication that the trial court thought it was
precluded from considering this issue, or had failed to consider
it.  The court also rejected several other technical arguments made
by Belt.  A.S.L.
   
Surviving Gay Lover Denied Tenant Succession Rights
   
Despite finding that Stephen Weltsek was the lover and roommate of
Burton Paer, a rent-control tenant who died during the summer of
1995, N.Y. County Housing Court Judge Peter Wendt ruled that the
landlord was entitled to recover possession of the apartment in a
licensee holdover proceeding reported in the New York Law Journal
(p. 29) on July 3.  521 East 72nd St. Realty Co. v. Weltsek
(Civ.Ct., N.Y.Co.).  Noting that the Rent Stabilization Code
provision governing tenant succession provided that "in no event
would evidence of a sexual relationship between such persons be
required or considered," Wendt held that he could not consider the
sexual relationship between the parties in determining whether
Weltsek was actually a surviving domestic partner.   

Instead, focusing on "objective" evidence, Wendt found that the men
had no joint bank accounts or any evidence of financial
interdependence, that despite residing in the apartment for many
years, Weltsek maintained his voter registration in his mother's
home in Queens, that Weltsek received welfare benefits together
with his mother, none of which inured to the benefit of Paer, that
Paer died intestate, having made no provision to leave any of his
effects to Weltsek in a will, and that the men never filed a
domestic partnership certificate with the city.  "This court
understands that respondent and the deceased tenant, because of
their limited financial resources, lived a life that did not
include credit cards, insurance policies or even formal wills.  Yet
they each did have personal bank accounts, and these were separate
and unshared.  They each received government benefits, yet neither
named the other on his household budget, nor did they share the
money received.  They could have made a domestic partnership
declaration at virtually no cost to themselves, yet they did not do
so.  They did not hold themselves out as a family to Burton Paer's
landlord.  Respondent has, for all the above reasons, failed to
prove that he is entitled, under NYCRR sec. 2204.6(d)(3)(i), to
succeed to Mr. Paer's rent controlled tenancy."
   
Wendt also noted that a surviving partner would have to prove that
the apartment was his "primary residence."  Wendt noted that
although Weltsek had lived in the apartment for more than two years
prior to Paer's death, he had maintained his voter registration
elsewhere; however, having found that Weltsek was not a legal
domestic partner, Wendt stated he would refrain from making a legal
finding regarding the issue of primary residence.
   
This formalistic opinion points out the continuing dangers for
lesbian and gay couples residing together in rent-regulated
apartments in New York.  The victory in Braschi and the adoption of
codifying regulations in the rent laws are not the end of the
matter.  Couples who wish to benefit from tenant succession rights
need to be cognizant of the evidentiary burden a survivor must
meet, and need to plan accordingly.  A.S.L.
   
Log Cabin Republicans In Dispute With Texas GOP
   
Prior to the 1996 Republican Party of Texas Convention scheduled
for June 20, the Log Cabin Republicans of Texas, an organization of
self-confessed Republicans supportive of lesbian and gay rights,
contracted with the Party for an exhibition booth at the convention
and an advertisement in the printed convention program.  Shortly
before the convention, the Party reneged on its contract
commitments and the Log Cabin group filed suit in state district
court, raising both constitutional and contract claims.  The
district judge issued a temporary injunction requiring specific
performance of the Party's contractual commitment.   

The Party filed an emergency appeal that was heard by the Texas
Supreme Court on June 19.  The court issued a preliminary opinion
in Republican Party of Texas v. Dietz, 1996 WL 354784, later the
same day.  Lifting the district court's order, the Supreme Court
stated, per curiam: "We are tentatively of the opinion that state
action is required for there to have been a violation of the
constitutional rights asserted by the Log Cabin Republicans and
that such action was not present under the facts of this case; that
the contract claims of the Log Cabin Republicans do not warrant the
relief granted by the district court; and that mandamus relief may
be appropriate under the unique and compelling circumstances of
this case."  

The court granted the Republican Party's emergency motion, allowing
the Party to hold its convention without fulfilling its contract
with the Log Cabin Republicans, and retained jurisdiction "for
purposes of rendering a judgment and issuing an opinion on the
merits of the petition for writ of mandamus."  A.S.L.
   
Delaware Superior Court Approves Name Change for Lesbian Partner
   
Reversing a mean-spirited and misguided lower court opinion, the
Superior Court of Delaware held that a lesbian woman can change her
last name legally to that of her same-sex partner in In re:  

Kimberly Ann Marley, C.A. No. 95A-11-004 RSG (Del. Super. Ct., New
Castle County, May 16).
   
The appellant, Ms. Marley, initially filed a petition in September
1995 to change her last name to that of the woman with whom she is
now in a relationship.  She complied with statutory requirements by
filing a verified petition with the Court of Common Pleas,
presenting an Affidavit of Publication from a local newspaper
indicating proper publication procedures, and paying the necessary
fees.
   
At the hearing on Marley's petition no one appeared to object, and
no one had previously filed any objections.  Marley established
that she was not seeking the change to defraud creditors or avoid
criminal prosecution.  She explained that she no longer wanted to
bear her ex-husband's name, nor did she want to resume her maiden
name.  Because she was in a relationship with a woman, but could
change her name by marrying her, she was petitioning to change it.  

The court sua sponte requested a legal memorandum citing either
Delaware or national precedents showing that such petitions had
been granted when the name would be that of a same-sex partner.  

Marley's attorney did not submit such a brief, but wrote to request
the change based on common law, the statutory presumption favoring
a petitioner's right to change her name, and her satisfaction all
statutory requirements.  Nonetheless, the Court of Common Pleas
denied her petition.  Its rationale was as follows:  The law does
not allow a woman cohabiting with a man outside of marriage to take
his name, because that would permit the parties to hold themselves
out as married.  Here, although there could be no intent to defraud
as same-sex partners cannot marry, the court should not get
involved "in setting up some informal substitute for marriage
between members of the same sex. . .  [I]f petitioner cannot marry
her current domestic partner, then the Court should not involve
itself in any sort of pseudo marriage ceremony."   

Judge Gebelein's opinion for the Superior Court examined common-law
principles that allow adults to adopt any name they desire provided
the change is not intended to defraud or to engage in criminal
purposes.  The Delaware name-change statute, it explained, "merely"
assists the common law by establishing a record of the name change.  

It cautioned that although the statute appears to allow courts
discretion by stating that even when all the requirements have been
met and there appears no reason not to grant the petition, "the
prayer of the petition may be granted" (emphasis added), this
discretionary language applies only upon finding an improper
purpose.
   
The general rule when exercising discretion, explained the court,
is that there must be "some substantial reason or peculiar
circumstance" to deny a name change petition.  The burden of proof
is on the court or interested third parties, and this burden the
lower court failed to meet.  The Superior Court declared that a
common law right cannot be denied merely because it represents a
departure from what the court has previously done.  Marley had
complied with all requirements and had no intent to defraud, nor
could she defraud, given the reality that same-sex partners cannot
marry.  Thus, the lower court abused its discretion in denying the
petition, and the case was reversed and remanded for an order
granting the petition.   

Marley was represented by Bruce M. Stargatt and John W. Shaw of
Wilmington and Timothy L. Hitchings of Bear.  J.H.
   
NY Trial Judge Rejects Same-Sex Marriage Claim
   
N.Y. Supreme Court Justice Walter Relihan, Jr., Tompkins County,
ruled in Storrs v. Holcomb, 1996 WL 379613 (June 25), against a
claim for a marriage license by a same-sex couple in Ithaca, N.Y.  

Phillip and Toshav Storrs had a Jewish commitment ceremony, but
were stymied in their attempt to obtain a marriage license from the
Ithaca City Clerk.   Although city officials were initially
supportive of their request for a license, they eventually bowed to
concerns voiced by national lesbian and gay organizations (who
feared administrative or legislative repercussions from the state
government) and the instruction of the state Health Department that
the city clerk was not authorized to issue such a license.  (The
Storrs' activism did inspire the Ithaca city council to pass a
resolution endorsing same-sex marriage.)   

The Storrs premised their claim on federal constitutional arguments
focused on cases recognizing a fundamental right to marry and
privacy rights with respect to domestic relationships.  Relihan's
decision appears sympathetic to their claims, but unpersuaded that
existing cases leave the way open for a state trial court to order
a city official to issue such a license.   

Relihan focused particularly on a decision by the New York
Appellate Division, 2nd Department, in Matter of Cooper, 187
App.Div.2d 128, app. dismissed, 82 N.Y.2d 801, in which the court
refused to construe the term "surviving spouse" in New York's
Estates Powers and Trusts Law as including same-sex partners, and
implicitly held that only opposite-sex couples can be married in
New York.  Relihan also characterized the Cooper decision has
holding that "neither the due process nor the equal protection
clause of the 14th amendment is offended by New York's gender
classification of persons authorized to marry," and observed that
he was bound by this precedent in the absence of any ruling on the
question by the Appellate Division in his department.   

The Storrs also argued, based on Griswold v. Connecticut, 381 U.S.
479, that the right of privacy barred governmental interference in
their relationship.  "Arguably," commented Relihan, "the sovereign
has no legitimate purpose in prohibiting a mere exchange of
personal commitments (not involving the conduct issue present in
Bowers v. Hardwick, 478 U.S. 186) between members of the same sex.
The argument is not without merit.  Nevertheless, it would be a
very long inferential leap, from this narrow premise, to the
conclusion that a denial of a marriage license to a same sex couple
destroys a fundamental right so implicit in our understanding of
ordered liberty that neither justice nor liberty would exist if it
were sacrificed."  The reference to Hardwick appears egregious to
this observer, in light of the N.Y. Court of Appeals' invalidation
of the state's sodomy law in Onofre in 1980, and the concluding
rhetorical flourish is a bit hard to take; to a gay citizen (who
has the reasonable expectation after Romer v. Evans of being a
first-class citizen, not a "stranger to the law"), the denial of a
right to marry certainly feels like a fundamental deprivation of
"justice and liberty."
   
Relihan seems more understanding of the problem, however, as he
goes on to speculate that perhaps in future a consensus will form
behind legislation to erase some of the formal disadvantages
suffered by same-sex couples who can't marry.  "Future legislation,
perhaps, will authorize civil contracts in which same sex partners
will enjoy the right of survivorship as well as social insurance
benefits now becoming available from private and public employers."  

However, Relihan stated that in the absence of such legislation, he
would not strike out and recognize a new fundamental right of same-
sex marriage without instruction from the higher courts.  Denying
relief to the plaintiffs, Relihan directed the City Attorney of
Ithaca to submit a suitable declaratory judgment order for the
court's approval.  A.S.L.
   
West Virginia High Court Upholds Life Sentence for Lesbian
Convicted of Murder
   
In an opinion released on June 14 the West Virginia Supreme Court
of Appeals upheld a conviction and life sentence imposed on Angela
Miller for the murder of Jerry White during the early hours of
October 9, 1993, outside a bar in Wyoming County.  State v. Miller,
1996 WL 328353.  White was allegedly a former boyfriend of Miller's
roommate and "alleged homosexual partner," Tina Reed.  In the
opinion by Justice Cleckley, a summary of the testimony exhibited
wildly varying versions of the events of that evening.  However,
there was a clearly an evidentiary basis for the jury concluding
that Miller shot and killed White; the different versions of events
showed varying levels of provocation and mitigation that could be
argued.   

The issue on appeal that is most relevant in terms of lesbian/gay
law is Miller's challenge to the trial court's voir dire rulings,
which refused to exclude certain jurors for cause.  One of these
jurors "repeatedly stated that she did not believe that
intoxication could reduce culpability and indicated that
homosexuals may be more violent or criminally inclined than
heterosexuals." Several other jurors also indicated negative views
of homosexuals, but also indicated their belief that homosexuals
were less likely to commit violent crimes.  All of the jurors in
question indicated that they believed they could render a fair
verdict despite any personal views they might have.  On balance,
the court determined that the trial judge had not abused discretion
in refusing to strike these jurors for cause.   

"To be clear," wrote Cleckley, "this court is greatly troubled by
the fact that jurors who indicated negative personal opinions about
the defendant's sexual orientation were permitted to serve over a
challenge for cause.  Indeed, we have ruled the injection of these
issues into a trial would warrant reversal of the conviction on
those grounds alone. . .  However, in cases where the evidence does
not otherwise suggest that a juror's protestation of impartiality
should not be credited because other facts in the record indicate
to the contrary, we, as an appellate court, are not to decide
whether we would have made the same determination but whether the
trial court abused its discretion. . .  More significantly, the
challenging party bears the burden of persuading the trial court
that the juror is partial and subject to being excused for cause.  

Guided by these precepts, an appellate court only should interfere
with a trial court's discretionary ruling on a juror's
qualification to serve because of bias when it is left with a clear
and definite impression that a prospective juror would have been
unable faithfully and impartially to apply the law.  In this case,
neither the burden of production nor the burden of persuasion was
met."  Is Cleckley talking a good game, or was this argument on
appeal just a stab in the dark?  A.S.L.
   
New Developments in Same-Sex Harassment
   
In what may become a trend, recent same-sex harassment decisions
have made liability for same-sex harassment contingent on the
sexual orientation of the defendant, with openly gay and bisexual
"harassers" more likely than others to be found liable for
identical conduct.
   
In Martin v. Norfolk Southern Railway, 1996 WL 283911
(U.S.Dist.Ct., N.D.Ala., May 22), the male plaintiff claimed
repeated verbal and physical sexual harassment by his supervisor
and two co-workers. Despite the overwhelmingly sexual nature of the
conduct alleged, the court dismissed the plaintiff's Title VII
claim largely because there was "no evidence" that the individual
defendants were homosexual; the court opined, "without the
presumption of sexual gratification, there is no evidence that the
harasser intentionally singled out the victim for offensive
treatment because he was male."  (Puzzlingly, the court said that
the same presumption would apply if the harasser were bisexual.  

The result implies that Title VII permits same-sex sexual
harassment, regardless of whether the victim is targeted because of
sex, as long as the defendants are not demonstrably gay or
bisexual.)  After dismissing the Title VII claim, the court
dismissed all claims against the employer except a FELA (Federal
Employers' Liability Act) claim, but allowed the plaintiff's state
law tort claims against the individual defendants to proceed.
   
In Dixon v. State Farm Fire and Casualty Insurance Company, 1996 WL
288181 (E.D.Va. May 28), plaintiff claimed constructive discharge
as a result of persistent sexual harassment involving unannounced
home visits, telephone calls, letters, and physical contact, and
sued under Title VII.  The defense sought to rely on McWilliams v.
Fairfax County Bd. of Supervisors, 72 F.3d at 1195 (4th Cir. 1996),
which the district court said had interpreted Title VII to exclude
sexual harassment complaints when the plaintiff and harasser(s) are
heterosexuals of the same sex.  The court ruled that the
plaintiff's allegations were sufficiently sexual in nature to
create an issue of material fact as to the sexual orientation of
the individual defendant, and thus allowed the hostile environment
claim to proceed.  The court dismissed the
plaintiff's quid pro quo claim, however, because the plaintiff
failed to respond to the defendant's motion for summary judgment on
this count.
   
In Yukoweic v. International Business Machines, 1996 WL 306363
(N.Y.App.Div., 3d Dep't, June 6), the male plaintiff claimed that
male co-workers' verbal sexual harassment interfered with his
ability to work, and supported his claim with tape recorded
evidence of the offensive conversations.  Noting that the plaintiff
had contributed to these conversations, and that they would have
been offensive to either men or women, the Appellate Division
upheld the defense motion for summary judgment on the basis that
the plaintiff had failed to produce evidence that he had been
targeted for harassment because of his sex.  O.R.D.
   
In a June 21 ruling rejecting a motion to dismiss in a same-sex
harassment case, U.S. District Judge Norma L. Shapiro held that
Title VII does cover the situation.  Swage v. The Inn Philadelphia,
1996 WL 368316 (E.D.Pa. June 21).  Plaintiff Warren Swage claimed
that his male supervisor, one "Spike Doe," subjected him to
unwanted sexual advances and harassment, and that the business's
owners failed to take meaningful action when he complained.  Judge
Shapiro said it made no sense to her to protect female employees
from harassment by male supervisors but to withhold similar
protection from male employees. Ruling otherwise would "exempt
homosexuals from the very laws that govern the workplace conduct of
heterosexuals," she said, quoting from an earlier case in another
jurisdiction.  She also refused to dismiss a state law claim under
the Pennsylvania Human Rights Act.   

A similar ruling was issued on May 28 in Johnson v. Community
Nursing Services, 1996 WL 376875 (U.S.Dist.Ct., D. Utah), Judge
Greene opining: "While sexual orientation or sexual preference may
be a factor in sexual harassment, courts should be careful not to
use it to muddy the waters of gender discrimination.  If a
homosexual male is sexually harassed by his homosexual supervisor
because the employee is male, then the employee has a cause of
action.  The fact that sexual preference may influence the sexual
harassment should not be reason to diminish, let alone to
invalidate, the fact that a supervisor discriminated against an
employee because of the employee's sex. The crucial inquiry is
whether the harasser treats a member (or members) of one sex
differently from members of the other sex."  

Bucking the trend, and showing how the bizarre same-sex harassment
rulings of the 4th Circuit continue to strew confusion in the
district courts, District Judge Carlton Tilley dismissed a same-sex
harassment claim in Gibson v. Tanks Incorporated, 1996 WL 376376,
70 F.E.P. Cases (BNA) 1380 (M.D.N.C. April 19).  Gibson alleged
that his supervisor, Ronnie Davis, "used sexual epithets,
conditioned receipt of expense money and the number of hours
credited to Gibson on sexual favors, and poked and grabbed Gibson
and other crew members in the buttocks and genital area."  

According to Tilley, whether this is actionable sexual harassment
under Title VII depends not on the nature of the conduct or on
whether Davis aimed his conduct only at male employees, but rather
on whether Davis is homosexual.  Since the complaint did not
specifically allege that Davis is homosexual, and there was a
deposition statement by Gibson that revealed that Davis is married
to a woman, Tilley dismissed the Title VII harassment charge!
   
District Judge Nelson dismissed a similar claim in Martin v.
Norfolk Southern Railway Co., 1996 WL 283911 (N.D.Ala. May 22).  

Nelson asserted that in the absence of evidence that the male
harassers of Edwin Martin were homosexuals, there was no element of
"sexual gratification" involved, which Nelson characterized as an
essential element of a hostile environment sexual harassment claim.  

According to Nelson, if the harassers are heterosexual and not
harassing another man for purposes of sexual gratification, the
necessary conclusion is that the victim was not selected for
harassment on account of his gender. A.S.L.
   
Domestic Partnership & Marriage Notes
   
By mid-July, with most state legislative sessions having concluded
or drawing to a close, the box score on state laws against same-sex
marriage stood as follows:  Bills were pending in Alabama,
California (passed Assembly), Louisiana, New Jersey, New York,
Pennsylvania (passed House), and Rhode Island.  Democrats in the
California Senate Judiciary Committee added an amendment providing
limited domestic partnership rights, which may doom the California
bill, since it seems unlikely the Republican-controlled Assembly
would go along, and Gov. Wilson vetoed a limited domestic
partnership measure last year.  In Maine, a petition drive has been
instituted to put an anti-same-sex marriage measure on the 1997
statewide ballot.  Sixteen states had enacted anti-same-sex
marriage bills since the 1993 decision by the Hawaii Supreme Court
in Baehr v. Lewin: Utah, South Dakota, Hawaii, Idaho, Georgia,
Kansas, Arizona, Oklahoma, Alaska, Illinois, South Carolina,
Tennessee, Delaware, North Carolina, Michigan, and Missouri.  

Several states already had language in their marriage laws
apparently or explicitly precluding same-sex marriage prior to
Baehr: Arizona, Colorado, Indiana, Louisiana, Maryland, Minnesota,
Texas, and Virginia.   

On July 12 the U.S. House of Representatives passed the so-called
"Defense of Marriage Act of 1996" by an overwhelming bipartisan
majority of 342-67. Only openly-gay Rep. Steve Gunderson among the
Republicans voted against DOMA, and fewer than half of the
Democrats registered their opposition.  President Clinton had
already announced his intention of signing DOMA if it passed in the
form it was introduced.  Senators Kennedy, Jeffords and Lieberman
have indicated their intention to seek an amendment adding the
Employment Non-Discrimination Act to DOMA, but their chances of
success seem slim in the Republican-controlled Senate.  As these
games are played out in legislative bodies, Hawaii attorney Dan
Foley and lawyers from Lambda Legal Defense Fund were preparing for
the scheduled trial on remand in Baehr, now set for September 10.
   
The 1996 General Assembly of the Unitarian Universalist Association
approved a resolution at its annual meeting in support of same-sex
marriages, becoming the first major Christian denomination to do
so.  Because of the decentralization within the denomination, it
will be up to local churches to decide whether to perform
ceremonies for same-sex couples.   

The Community Relations Commission in the city of Columbus, Ohio,
has approved a ruling by Hearing Officer Scot Dewhirst that the
city's human relations law, which bans sexual orientation
discrimination, requires recognition of domestic partners by city
agencies subject to the law.  Ruling on a complaint by James
Durham, an employee of the Metropolitan Library, Dewhirst found
that the Library violated the law by failing to extend its sick-
leave policy to Durham and his domestic partner.  Durham had sought
one day of sick pay to compensate for time he took to care for his
partner, and was denied.  Durham v. Columbus Metropolitan Library,
Case No. 002 (Columbus Community Relations Commission).  Dewhirst's
April 22 decision was approved by the Commission on June 3.  Durham
was represented by Robert Eblin, a Columbus attorney with the firm
of Schwartz, Warren & Ramirez.
   
A firestorm erupted in Philadelphia when Mayor Ed Rendell issued an
Executive Order on June 7 granting domestic partnership health
benefits to gay partners of some city employees.  Rendell's order
applies to about 500 nonunion officials, but does not cover the
20,000 rank-and-file union-represented city employees.  Based on
experience from other cities, it is likely that on a population
base of 500 eligible employees, fewer than ten will enroll their
partners for benefits.  Nonetheless, a furor erupted in the city
council and in the press, with Roman Catholic Cardinal Anthony J.
Bevilacqua leading the protesters.  Efforts were underway to force
a referendum vote of the citizens of Philadelphia, and City Council
President John F. Street announced he would seek a court order
against implementation of the mayor's policy.  (Based on reports
from the Philadelphia Inquirer.) A.S.L.
   
Texas Supreme Court Relies on Hardwick in Narrowing State Privacy
Right
   
In an opinion heavily reliant on Bowers v. Hardwick, 478 U.S. 186
(1986), the Texas Supreme Court reversed decisions by a trial court
and intermediate appellate court and held that the City of Sherman,
Texas, did not violate the constitutional rights of police officer
Otis Henry when it denied him a promotion because he was conducting
an adulterous affair with the wife of another police officer.  City
of Sherman v. Henry, 1996 WL 378324 (July 8).  Two members of the
court declined to join this opinion, however, disagreeing with the
narrow approach to state constitutional privacy and arguing that
the City's action would be justified even if the Texas
constitutional right of privacy applied to this case, because of
the peculiar facts of the case.
   
The lower courts had ruled that the city violated Henry's
constitutional right of privacy, noting that Texas had
decriminalized adultery and that several lower federal courts had
found such a constitutional violation in somewhat similar
circumstances.  In an opinion joined by seven members of the court,
Justice Abbott disagreed with the lower court, and using the very
narrow privacy analysis of Hardwick, found no constitutional right
at issue.  Abbott also used the Hardwick analysis to give a
surprisingly narrow scope to the state privacy right.  As had
Justice Byron White in Hardwick, Abbott emphasized that adultery
was long a crime at common law and that shortly after the Texas
constitutional provision at issue was adopted in the 19th century,
the legislature had revised the penal code and retained the crime
of adultery.  Thus, Abbott argued, the constitutional drafters did
not intend to protect adulterers from government action.   

Justices Spector and Owen, in separate concurring opinions, took
sharp issue with Abbott's approach.  Each of the concurring judges
argued that Texas cases provided a much more flexible and wide-
ranging scope to state constitutional privacy.  They were
concurring rather than dissenting because of the particular
situation at issue.  Even if Henry's choice of sexual partner was
constitutionally protected, they argued, the police department
could properly refuse to promote somebody whose actions had a
predictably disruptive effect within the department.  Both justices
also pointed out that after the disruption attendant on the
discovery of Henry's affair had died down, he was subsequently
promoted into a different position.   

The decision for the court is particularly significant because of
the repeated challenges to the Texas homosexual sodomy law under
this state constitutional provision.  The supreme court ducked the
substantive issue when two separate cases emerged from the
intermediate court with decisions striking the sodomy law as a
violation of state privacy doctrine.  See City of Dallas v.
England, 846 S.W.2d 957 (Tex.App. 1993) and State v. Morales, 869
S.W.2d 941 (Tex. 1994), 826 S.W.2d 201 (Tex.App. 1992).  Justice
Abbott's reasoning in Henry appears to cast significant doubts on
the substantive privacy rulings by the intermediate appellate
courts in England and Morales.
   
Law & Society Notes

   
The Ohio Appeals Court affirmed a state agency decision denying
unemployment compensation benefits to an employee who made racist,
sexist and homophobic comments to other employees.  Whitaker v.
Board of Rev., Ohio Bd. of Employment Servs., 1996 WL 362081 (June
25).  Terry Whitaker's application for benefits was denied based on
a finding that he had been discharged for violating company rules.  

Whitaker appealed and the appeals court affirmed, finding
sufficient evidence to support a finding of just cause for the
discharge, including violations of company policies and racist,
sexist and homophobic remarks made to other employees.  Whitaker's
pattern of behavior had disrupted the work environment in the past,
and could do so again in the future.  The determination that the
employer had just cause to discharge Whitaker was not, therefore,
unlawful, unreasonable or against the manifest weight of the
evidence.  D.W.
   
The plaintiffs have withdrawn a suit against the Merrimack, New
Hampshire, school board attacking the board's anti-gay curriculum
decisions.  Recent school board elections resulted in the defeat of
the anti-gay board leadership, rendering the lawsuit moot as the
policies have been repealed by the board, according to a news
release from the plaintiffs, who were represented by Gay & Lesbian
Advocates & Defenders, the ACLU, the Merrimack Teachers Association
and People for the American Way.  * * *  By contrast to the on-
going battles in Merrimack County, consider Los Angeles, where the
Board of Education elected an openly-gay member, Jeff Horton, to be
its President on July 1.  Horton, a professional educator, has been
a member of the Board for five years.  Daily News of Los Angeles,
July 2.  A.S.L.
   
Lambda Legal Defense Fund has filed a complaint with the Delaware
Court on the Judiciary against a judge in Wilmington for his
treatment of a lesbian who was seeking an order of protection
against her former partner in the judge's court.  According to
Lambda's complaint, the judge made fun of her relationship and
threatened to "put somebody in jail" if the plaintiff returned to
court, sparking laughter from spectators in the courtroom.  The
names of the judge and the lesbian complainant were not released by
Lambda.  A.S.L.
   
A local prosecutor in Emmett, Idaho, Douglas Varie, is waging a
one-man campaign against teen pregnancy by prosecuting pregnant
unmarried teenage girls and their boyfriends under the state's 1921
fornication statute when they apply for public assistance benefits.  

As of July 17, seven pregnant girls have been charged under the
law.  The first to be charged, Amanda Smisek, was sentenced two
weeks before her son, Tyler, was born, to a 30-day suspended jail
sentence, three-years probation, and mandatory parenting classes.
A similar sentence was imposed on her boyfriend, Chris Lay, age 17,
who she plans to marry after graduating high school.  A.S.L.  

In its first ruling in a public accommodations case involving
sexual orientation discrimination, the Massachusetts Commission
Against Discrimination awarded damages of $10,000 each to a gay man
and two lesbians who were physically ejected from a Boston
nightclub, Stocks & Bonds Restaurant and Bar, on Oct. 6, 1990.  The
three were part of a gay activist group that had decided to
"liberate" the non-gay club by patronizing it as a group and
dancing together.  In addition to paying the damages, the club was
ordered to pay one plaintiff's medical expenses and adopt a non-
discrimination policy.  However, the club has since gone out of
business and the Commission will have to track down the owners to
attempt to satisfy the judgment.  The complainants were represented
by Mary Bonauto, a lawyer with Gay & Lesbian Advocates & Defenders.  

Boston Globe, July 11.  A.S.L.
   
The first Congressional hearing on the Employment Non-
Discrimination Act (ENDA), H.R. 1863, since Republicans won control
of the House of Representatives in the 1994 elections, was held by
the House Small Business Subcommittee on Government Operations on
July 17.  Subcommittee Chair Peter G. Torkildsen (R-Mass.), a co-
sponsor of the bill, invited both proponents and opponents to
testify, but none of the opponents accepted the invitation, so the
hearing was completely one-sided in favor of the bill.  Testimony
was presented by Democratic and Republican House co-sponsors, as
well as spokespersons for gay rights organizations, the business
community, and individual discriminatees.  In a press release
issued prior to the hearing, Human Rights Campaign listed 165
cities and counties that have legislation or official policies
banning sexual orientation discrimination.  BNA Daily Labor Report
No. 138, July 18, p. A-10. A.S.L.
   
We previously reported that the only incumbent openly gay member of
Congress running for re-election was Rep. Barney Frank (D-Mass.).  

The Washington Blade reported July 12 that Rep. Steve Gunderson (R-
Wis.) is staging a write-in campaign for the Republican nomination
in his district.  Gunderson had originally announced his retirement
from Congress, but the death of a senior Republican representative
on the House Agriculture Committee would put Gunderson in line to
become committee chair if re-elected, and dairy interests in
Wisconsin exerted great pressure on him to reverse his decision and
run.  Gunderson's district is also considered likely to go
Democratic if he is not on the ballot, so some grass-roots
Republicans in the state are eagerly supporting Gunderson's write-
in campaign.  Party leaders, perhaps bowing to the homophobia of
right-wing religious groups, have refused to throw their support to
Gunderson.  * * *  Dale McCormick, an openly lesbian state
legislator in Maine, lost a hard-fought primary battle for a
nomination to Congress.  The victor, Tom Allen, also takes a pro-
gay position and won with a campaign that did not make an issue of
McCormick's sexual orientation. A.S.L.
   
A palimony suit against concert pianist Van Cliburn by Thomas E.
Zaremba was dismissed by Texas District Judge Fred Davis in Fort
Worth on July 3.  Davis found that Texas law would not recognize
any sort of unwritten contractual partnership relationship between
the two men.  Zaremba also sought damages based on a claim that Van
Cliburn engaged in unsafe sex outside the relationship, thus
exposing Zaremba to the possibility of HIV infection, but there was
no allegation that either man was infected with HIV.  Cliburn's
lawyers had denied all of Zaremba's allegations, characterizing his
lawsuit as an attempt to extort money from the wealthy pianist.  

Houston Chronicle, July 5.  A.S.L.
   
The governing body of the Presbyterian Church (USA) approved a
resolution allowing the ordination of openly gay persons on July 5,
but there's a catch.  Because the Church regards all extramarital
sexual activity as a sin, openly gay candidates for the pastorate
must repent their past homosexual activity and vow to remain
celibate in order to be ordained.  The policy also provides that
unmarried heterosexual candidates for the priesthood must vow to
refrain from having sex outside of marriage.  There was no
indication that the Church is ready to endorse proposals for same-
sex marriage.  The vote of the General Assembly in favor of the
resolution was 313-236.  (Compiled from Associated Press reports
appearing in many newspapers on July 6.)   

Republican New York State Governor George Pataki has proposed
legislation to increase penalties for hate crimes in New York,
including those motivated by the sexual orientation of the victim.  

Former Governor Mario Cuomo, a Democrat, had repeatedly sponsored
such legislation, but it always came to grief in the State Senate,
where Republicans balked at including sexual orientation protection
in the text of the bill.  Pataki's decision to introduce similar
legislation at least signals that he would sign such a bill if it
could get through the Senate, but all reports indicated that Senate
Republican leaders were no more receptive to the proposal from a
governor of their own party than previously, and some saw Pataki's
move as a ploy to win conservative gay voters away from the state
Democratic party in a legislative election year. A.S.L.
   
International Notes
   
Registered partnership, almost but not quite the same as same-sex
marriage, is continuing its spread through the Scandinavian
countries.  On June 4, Iceland, following the lead of
Denmark/Greenland, Norway and Sweden, adopted a registered
partnership law that went into effect June 27, which coincidentally
is celebrated as Gay Pride Day there.  The Icelandic law differs
from its predecessors by specifically allowing a same-sex partner
to adopt the biological children of his or her partner.  The last
Scandinavian country to be heard from is Finland, where legislators
are now debating the question and a public opinion poll has shown
that two-thirds of the public would support a partnership law, with
a plurality willing to support same-sex marriage outright.
   
Swedish gay rights activists expressed outrage at a decision by
Sweden's Alien Appeals Board to deny asylum to lesbians and gay men
from Iran, a country where homosexuality is subject to whipping and
execution.
   
Canada's Senate voted June 6 in favor of the bill approved by the
House of Commons on May 9 to ban sexual orientation discrimination
under the Federal Human Rights Act.  The Act applies to federal
government employees as well as the employees of large, federally-
regulated businesses, such as banks, airlines, railways, and
electronic media.  The bill specifically does not require domestic
partnership benefits.  The last step prior to enactment is Royal
Assent, the approval of Queen Elizabeth's official representative
to the Canadian government, which is considered a mere formality.  

The enactment will make Canada the first government in the Western
Hemisphere to have a national law forbidding sexual orientation
discrimination.  * * *  The Canadian Human Rights Commission ruled
June 13 that the federal government must extend health benefits to
same-sex partners of government employees.  The ruling was based on
a 1992 Ontario Court of Appeal decision construing the Canadian
Human Rights Act, according to a Reuters report.
   
Queer News Aotearoa reports that New Zealand lesbian couple Lindsay
Quilter and Margy Pearl will appeal a High Court ruling denying
them a marriage license to the Court of Appeal.  High Court Justice
Kerr stated, in an opinion denying their claim, that it was up to
the Parliament, not the courts, to decide whether same-sex couples
may marry in New Zealand.  "To give marriage a meaning which the
plaintiffs seek would require me to interpret the law in a way
which I do not perceive Parliament to intend. . .  I accept that
the traditional common law did not address the question of
homosexual marriage. . ."  Kerr recognized that "community
attitudes in 1996 are much more relaxed to gay and lesbian couples.
 2E . but whether that relaxation would extend to supporting marriage
of such couples is difficult to gauge."  Justice Minister Doug
Graham, who is opposed to same-sex marriage, stated in response to
the decision that the government had no plans to introduce
legislation in Parliament on this issue.
   
A lawyer from the Isle of Man (U.K.) has reported that Man's Trusts
Act of 1995, effective beginning this past Jan. 1, has (probably
unintentionally) opened up opportunities for same-sex couples to
plan estate/heirship issues through a trust medium.
   
Under common law traditions, adultery by a wife may constitute
provocation excusing a violent response by the husband.  In HMA v.
McKean, 1996 S.C.C.R. 402, the Scottish High Court held that the
same principle can apply to a homosexual relationship.  Wrote Lord
MacLean, "In these somewhat enlightened days of sexual equality I
can see no reason why the law should not extend uniformly to a man
and a woman.  In other words, a wife or female companion should
have the benefit of the mitigating plea of provocation equally with
the husband or male partner.  I also see no reason why, in the
modern context, the plea should not also be available to homosexual
couples who live together and are regarded in the community as
partners bound together by ties of love, affection and faithfulness
-- although I have to say that, until this case, the law has not so
far been extended to them."
   
An internet posting reports that the police in Bulgaria have
recently staged a crackdown on the Bulgarian Gay Rights
Organization, called "Flamingo," an organization which first came
to international attention when it obtained membership status in
the International Lesbian and Gay Organization in 1990.  The police
invaded the organization's headquarters on July 10, confiscating
card files, correspondence, the organization's computer and related
equipment and other materials, and arrested the employees.  This
was followed a day later by similar actions against gay groups
around the country, according to the report.
   
Gay journalist Rex Wockner recently reported that Slovenia's new
penal code includes sexual orientation on a list of characteristics
as to which discrimination, special rights or privileges are all
banned.
   
The Dutch State-Secretary for Justice has appointed a commission of
legal experts to review the issue of same-sex marriage and report
on a legislative proposal by August 1997.  This action came in
response to an April 16 resolution by the Dutch Parliament calling
for legislation to authorize same-sex marriages.  The Commission is
chaired by Bas Kortmann, a professor of private law at the Catholic
University of Nijmegen.  Among other members are two Dutch
activists on behalf of lesbian and gay rights, both law teachers,
Astrid Mattijssen and Kees Waaldijk.  A.S.L.
   
Professional Notes
   
Lambda Legal Defense & Education Fund has several staff openings
for which it is soliciting applications.  It is seeking a managing
attorney for its New York office.  The position requires a minimum
of seven years litigating experience, and will require public
speaking and media work as well as legal work.  The salary range
begins in the mid-50s depending on experience.  Resumes and writing
samples should be sent to Lambda's Legal Director, Beatrice Dohrn,
at Lambda, 666 Broadway, 12th Floor, NYC 10012.  Lambda is also
seeking an AIDS Project staff attorney for its Chicago office.  Job
requirements include 5 years of litigation experience, some
speaking and media work, familiarity with HIV/AIDS issues,
dedication to multiculturalism and lesbian, gay, and HIV/AIDS
rights.  Salary from mid-40's, depending on experience, plus
excellent benefits.  Send a resume and recent writing sample to
Patricia Logue, Lambda Legal Defense Fund, 17 E. Monroe St., Suite
212, Chicago, IL 60603.  A new Lambda position is Public
Information Coordinator in the New York office; this person will
have responsibility to disseminate Lambda media and education
materials, and the position will involve drafting news releases and
op-ed articles.  Legal background is considered a plus factor for
candidates, although a law degree is not required.  Cover letter
and writing samples should be sent to Peg Byron, Lambda's Public
Education Director, at 666 Broadway, 12th Fl., New York NY 10012.
A.S.L.
   
The U.S. District Court for the Middle District of Alabama strongly
complimented the work of attorneys representing a student group in
its successful effort to invalidate a homophobic state law aimed at
keeping lesbian/gay student groups off the campuses of Alabama
state colleges and universities.  Gay Lesbian Bisexual Alliance v.
Sessions, 1996 WL 339906 (June 6).  Ruling on an application for
attorneys fees by the prevailing party, the court awarded $79,355
in fees and $2,181.21 in expenses.  Focusing on the work of Ruth
Harlow, the ACLU Gay & Lesbian Rights Project national staff
attorney with primary responsibility for the case, and Fern Singer,
her local co-counsel, the court wrote: "Although she has been
practicing for only approximately nine years, Harlow is already an
experienced civil rights attorney with a national reputation,
especially in the area of gay and lesbian rights law.  Singer is
also an experienced attorney, and both performed their work ably.  

Moreover, as stated, this case was extremely complex, and the work
done by Harlow and Singer was of the highest caliber.  More
importantly, the court is convinced that Harlow's expertise in gay
and lesbian rights law, and Singer's general civil rights
expertise, enabled them to prosecute this case very efficiently.  

Attorneys with less knowledge and experience would have taken many
more hours to pursue this litigation.  Therefore, Harlow's and
Singer's efficiency justifies an hourly rate at the high end of the
customary range."  Way to go! This movement employs top folks!  

A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS =
   
Supreme Court Grants Cert and Remands Case of HIV+ Doctor Whose
Contract Was Terminated by FBI
   
Intervening in what is, to date, the only successful discrimination
case brought by an HIV-infected health care worker under federal
disability law, the U.S. Supreme Court granted the government's
petition for certiorari in Reno v. Doe, No. 95-830, 1996 WL 341602
(June 24), vacated the 9th Circuit's decision, 62 F.3d 1424, and
remanded for reconsideration in light of Lane v. Pena, 1996 WL
335334 (U.S.Sup.Ct., June 21).
   
In this case, the John Doe doctor had a contract with the Federal
Bureau of Investigation to perform physical examinations of FBI
agents.  When the Bureau received reports that Doe had Kaposi's
sarcoma, a skin condition associated with AIDS, it inquired of Doe
about his health status.  Doe refused to confirm or deny that he
was HIV+ or had AIDS.  The Bureau, claiming it had lost confidence
in Doe, terminated his contract.  Doe sued under Section 504 of the
Rehabilitation Act, which forbids discrimination against otherwise
qualified persons with a disability under any federal program. =

After lengthy litigation that produced at least six published
decisions by lower federal courts over a period of many years, the
9th Circuit finally ruled that the FBI had violated the Act and
that damages were due to the estate of Dr. Doe, who died from AIDS
during the course of the litigation.  =

In Lane v. Pena, a case involving an insulin-dependent diabetic who
was forced to leave the U.S. Merchant Marine Academy, the Supreme
Court held that the federal government had not waived sovereign
immunity with respect to monetary claims brought under section 504. =

Thus, on remand the focus of the 9th Circuit's concern will be with
its prior damage award in the case.  It would still be possible,
presumably, for the 9th Circuit to issue a judgment that the FBI
had violated section 504, unaccompanied by a damage award. =

However, the Court's ruling in Lane and subsequent action in Doe
point up the weakness of section 504 as a remedial statute for
federal employees, contractors and patrons of federal programs when
they are deprived of a potential damage remedy for violations of
the Act. A.S.L.
   
N.J. Supreme Court Upholds Blood Bank Industry Liability for 1984
HIV-Infected Transfusion
   
The New Jersey Supreme Court joined the minority of courts holding
that blood transfusion recipients may hold the blood banking
industry liable for negligent infection with HIV.  Snyder v.
American Assn. of Blood Banks, 1996 WL 290907 (June 4).  William
Snyder received blood products infected with HIV in 1984, several
months before the HIV blood test became available.  In 1987, the
blood bank determined that the blood he had received was HIV+, and
Snyder subsequently tested positive.  Snyder and his wife alleged
various negligence theories of liability against the hospital,
doctors, and blood banks.  The case went to trial against a lone
defendant, the American Association of Blood Banks (AABB), a blood
bank trade association, the other defendants having settled or been
dismissed.  A jury found that the AABB had negligently failed to
recommend surrogate testing, which would have weeded out blood
samples from donors considered to be at high risk for HIV.
   
Writing for a 6-1 majority, Justice Pollock begins by tracing the
early history of HIV disease and the public policy struggle in the
early 1980s when it began to appear that HIV was being transmitted
via blood transfusions.  Although by 1983 some scientists at the
Centers for Disease Control (CDC) advocated surrogate testing --
testing blood samples for blood abnormalities common to people who
went on to develop AIDS -- the AABB resisted implementing such
tests.  The AABB held a central position in the blood banking
industry; it created authoritative standards in the field and many
states deferred to its standards in their regulations.
   
The AABB had a duty of care to the plaintiff, the court held.  The
AABB assumed the duty of assuring the safety of the nation's blood
supply by promulgating its own standards and by accrediting blood
banks.  The AABB "wrote the rules and set the standards" for blood
banks, the court reasoned, and therefore had a duty to protect
blood recipients.  Although evidence of blood transfusions causing
AIDS may have been inconclusive, it was nonetheless foreseeable
that blood transfusions could spread the virus.  Among other
evidence of foreseeability, the CDC believe in 1982 that AIDS could
be transmitted by blood transfusions and a 1984 New England Journal
of Medicine article confirmed the link between blood transfusions
and AIDS.  By the time of Snyder's transfusion, therefore, the AABB
should have foreseen the risk that a blood transfusion could
transmit AIDS.  =

The court also refused to extend qualified immunity to the AABB on
the ground that it was performing a quasi-governmental function,
because to do so would give the AABB a benefit without the burdens
of public office.  In other words, the AABB was not subject to
public scrutiny, governmental oversight or procedural safeguards. =

The court also dismissed the argument that the AABB should be given
charitable immunity, because it was a trade association focused on
promoting its members' interests and not devoted solely to a
charitable purpose.
   
In a lengthy dissent, Justice Garibaldi argued that the AABB should
have been extended qualified immunity for its quasi-governmental
acts.  Because the AABB performed tasks that the state would
otherwise have had to perform, it should be qualifiedly immune from
liability for doing so, she argued.  The AABB acted with implicit
and explicit state approval as a regulatory body.  Courts have
granted qualified immunity to private entities acting in quasi-
governmental capacities in a variety of contexts.  Without
qualified immunity, private groups would be hesitant to take part
in the formulation of public health policy, Garibaldi reasoned. =

D.W.
   
Federal Appeals Court Rejects Government Liability for Transfusion
AIDS at Military Hospital
   
In Kipp v. United States, 1996 WL 388345 (Jul. 12), the U.S. Court
of Appeals for the 8th Circuit upheld a lower court's decision
against Gary Kipp, a man who claimed the government's negligence
had led to his mother's AIDS-related death.  Kipp brought the
negligence action against the government under the Federal Tort
Claims Act (FTCA), 28 U.S.C. secs. 1346(b) and 2671, charging that
a blood center in Kentucky did not use FDA-recommended screening
procedures, thereby allowing his mother to receive a transfusion of
HIV-contaminated blood supplied by the blood center during a
hysterectomy at an Air Force hospital in February 1985.  She died
in May 1989.  =

In February 1985, when Mrs. Kipp was transfused, there were no
scientific reliable tests to discover the presence of HIV in blood. =

Consequently, the FDA recommended that blood collection centers
institute various procedures to screen out potentially HIV-
contaminated blood.  Instituted in 1983 and 1984, these
recommendations included: (1) providing information to enable "high
risk" donors to identify themselves; (2) re-educating intake
personnel to identify signs and symptoms of AIDS; (3) labeling and
destroying suspect blood; (4) screening donors through questions
about their medical histories; and (4) providing donors a
confidential means of preventing their blood from being used.
   
Kipp claimed that the blood collection center did not follow the
FDA guidelines, constituting negligence per se. After a bench
trial, the district court asserted that the plaintiff failed to
establish the applicable standard of care for blood collection
centers in Kentucky and thereby failed to prove his negligence
claims.  The court further maintained that under Kentucky law Kipp
failed to meet his burden of proving that the blood center's
alleged negligence was a "substantial factor" in causing his
mother's injury.  The court stated that it is necessary, but not
sufficient, to demonstrate that the injury would not have occurred
had the defendant not been negligent.  Writing for the court,
Circuit Judge C. Arlen Beam asserted that Kipp did not prevail
because he did not demonstrate that the blood center's  inadequate
screening practices resulted in his mother's HIV-contaminated blood
transfusion.  C.W.
   
U.S. Appeals Court Certifies Questions to Massachusetts High Court
in AIDS Insurance Fraud Case
   
Finding significant questions of first impression under state law,
the U.S. Court of Appeals for the 1st Circuit has certified
questions to the Massachusetts Supreme Judicial Court in a case
where the District Court voided a life insurance policy on grounds
of AIDS-related fraud.  Protective Life Insurance Co. v. Sullivan,
1996 WL 384411 (July 15).  The case may have particular
significance for viatical settlement companies, which purchase
beneficiary rights under life-insurance policies from terminally-
ill patients, as happened in this case, and later find the
insurance companies refusing to pay the benefits on grounds of
application fraud.
   
In August 1991 Daniel J. Sullivan was diagnosed HIV+.  A month
later he applied for a $100,000 life insurance policy with
Protective Life.  On the application, he stated that his health was
excellent, left off the names of doctors who knew about his HIV-
infection, and said he was not taking medication (although he had
already begun taking AZT).  The policy gave Sullivan the right to
waive paying the annual premium should he become disabled.  It also
contained a 2-year incontestability clause, which explicitly stated
that it did not bar claims for fraud raised more than two years
after the policy was issued.  Sullivan's health worsened in 1992
and he was diagnosed with AIDS that June.  He stopped working
around then and in October applied for disability benefits under a
policy with a different insurance company.  But he did not request
the premium waiver from Protective Life until November 1993,
shortly after the two-year anniversary of his life insurance
policy.  In October 1993, Sullivan contacted Dignity Viatical
Settlements about receiving cash for his life insurance policy, and
pursuant to his agreement with Dignity, it submitted an assignment
of rights form to Protective Life on December 14, 1993.  After
Protective Life approved the assignment on December 22, Dignity
paid Sullivan $73,000.  =

On April 15, 1994, Protective Life sued in U.S. District Court in
Boston to have the policy rescinded on grounds of fraud by
Sullivan.  Defendants Sullivan and Dignity moved to dismiss on
grounds of incontestability, arguing that the "fraud" exception in
the policy's incontestability clause was invalid due to a
Massachusetts statute requiring the inclusion of two-year
incontestability clauses.  The Massachusetts statute lists three
exceptions to incontestability, but fraud is not among them. =

Protective Life argued that its "fraud" provision was valid, noting
that the form of its application and policy had been approved by
the Massachusetts State Insurance Department, and that another
provision of the Massachusetts insurance law clearly allowed
insurance companies to raise fraud issues in seeking to rescind
policies.  Dignity's attorneys responded that the provision to
which Protective referred only applied during the two-year period
before the incontestability clause went into effect.  District
Judge Keeton agreed with Protective Life's arguments, and granted
its petition to rescind the policy.
   
On appeal, the panel found in a per curiam opinion that the
district court had actually decided questions of first impression
under Massachusetts law for which there was no precedent, and
courts in other jurisdictions are divided on the various questions,
with none having exactly the combination of insurance statutes
present in this case.  The panel decided to certify two questions
to the Massachusetts Supreme Judicial Court: 1. Whether the
Massachusetts statute provisions, taken together with the Insurance
Commissioner's approval of Protective's forms, require a particular
outcome on the question whether Protective can seek rescission for
fraud after the incontestability period has run; and 2. Whether the
incontestability period may have been tolled by Sullivan's delay in
applying for the disability waiver for his premium obligation.  The
court invited the state court to address any and all state law
issues it might find pertinent to decision of the case.  =

Ironically (but perhaps not so coincidentally?), the New York Times
reported July 18 that Dignity Partners, described as "one of the
first viatical settlement companies," had announced that it was
going out of business because new AIDS treatments that would
significantly expand the lifespan of persons with AIDS who have
sufficient financial resources to obtain them (and are thus likely
to have sufficient financial resources to have purchased life
insurance policies) will reduce the market for viatical settlement
services.  * * *  In a side-note of less direct relevance to AIDS
law, the U.S. Court of Appeals for the D.C. Circuit ruled on July
5 that viatical settlement contracts are not investment contracts
subject to federal laws regulating the sales of securities. =

Securities and Exchange Commission v. Life Partners, Inc., No. 95-
5364 (see 65 U.S.L.Wk. 2039).  A.S.L.
   
Louisiana Appeals Court Affirms Jury Verdict Favoring Factor VIII
Manufacturer
   
In a decision announced May 29, a unanimous panel of the Louisiana
Court of Appeal, 4th Circuit, upheld a jury verdict in favor of
Cutter Biological, manufacturer of Factor VIII blood clotting
medication, in a closely watched case concerning the HIV infection
of the son of Gary Cross, a board member of National Hemophilia
Foundation.  Cross v. Cutter Biological, 1996 WL 293728.  =

Gary and Karen Cross's son, Brad, was born with hemophilia in April
1975, and began receiving Factor VIII when he was one year old. =

Brad died from AIDS in 1993 while the lawsuit was pending.  The
jury found that Brad was infected with HIV prior to 1982, based
primarily on an HIV+ blood sample that was stored during his
hemophilia treatment.  There was evidence in the record that he was
infused with Factor VIII in 1983 from an infected batch that was
subsequently recalled by Cutter when it was learned that a donor
whose blood was used to make that batch had contracted AIDS, but
the jury believed that at the time he was already infected, and the
trial court had refused to admit testimony from a medical expert
about the possibility that reinfection with a different strain of
the virus could have accelerated Brad's development of AIDS.  The
trial court had dismissed claims against a co-defendant, Armour
Pharmaceutical, whose Factor VIII produce had been used by Brad in
1984, on the ground that no evidence was produced showing that Brad
had actually been exposed to HIV through using any Armour product,
although there was evidence in the record from which a jury might
speculatively come to that conclusion.
   
On appeal, attorneys for the Crosses apparently directed their
efforts at discrediting the 1982 blood test and trying to show that
the record evidence more strongly supported the conclusion that
Brad was infected in 1983 through infusion with Factor VIII from
the batches Cutter subsequently recalled.  Their attempt was
unavailing, however, the court finding that the jury's conclusion
was reasonable in light of the record.  The court also rejected
their attempt to have the verdict upset based on alleged defects in
the jury charge, or exclusion of certain proffered expert
testimony, and found that the trial court did not abuse its
discretion in dismissing the case against co-defendant Armour. =

A.S.L.
   
Tennessee Appeals Court Rules for Life Insurance Company in AIDS
Fraud Case
   
The issue on appeal in Krakowiak v. Paul Revere Life Insurance Co.,
1996 WL 30363 (Tenn.Ct.App. June 7), was whether the trial court
properly granted summary judgment to the defendant life insurance
company against a plaintiff who had lied on an application for
disability insurance, and then filed a declaratory judgment action
to enforce his rights under the policy.  Not surprisingly, the
appellate court affirmed.
   
In October 1989, Krakowiak applied for disability insurance. The
trial court found that he did not disclose that he had been
diagnosed HIV+ in 1985, that he had received medical treatment for
that condition, and that he had falsely represented on his
application that he had not received treatment or advice in the
previous five years.  Pursuant to state law, the contract contained
a two-year incontestability clause, which prohibited the insurance
company from denying coverage based on statements set forth in the
application after the two year period, or for pre-existing
conditions disclosed in the contract after the two year period.
   
Krakowiak's physician certified that he became totally disabled on
account of AIDS as of October 1993.  Krakowiak filed his disability
claim, and the insurance company began to pay benefits under an
express reservation of rights.  Then, without notice to Krakowiak,
the insurance company took the position that he was not entitled to
benefits, because the policy's definition of sickness did not cover
illnesses which manifested themselves before the policy was issued. =

The company stopped paying and started to make further premium
withdrawals from Krakowiak's checking account.  Krakowiak sued for
recovery of withheld payments, for post-claim premiums taken with
interest, for a 25% bad faith penalty pursuant to statute, and for
declaratory relief. =

In an opinion by Judge Lewis, the court of appeals characterized
Krakowiak's position as being one where the insurance company was
denying the validity of the policy after the incontestability
period had expired, and the company's position as being one where
the validity of the policy was not being disputed, that it was only
the coverage of a particular illness which the insured had known to
have manifested itself prior to issuance of the policy which was in
dispute.  The court agreed with the insurance company's position,
and ruled that to do otherwise would encourage dishonesty and
reward deception, contrary to public policy.  The matter was
remanded to the trial court for further proceedings; costs on
appeal were taxed against the appellant.  S.K.
   
Missouri Appeals Court Says Doctor May Be Liable For Ordering
Unnecessary HIV Test
   
Reversing a directed verdict that had been ordered in favor of Dr.
Kimberly Wood by the Jasper County Circuit Court, the Missouri
Court of Appeals, Southern District, ruled July 10 that a doctor
may be guilty of malpractice for ordering an unnecessary HIV
antibody test for a patient.  Burwick v. Yuhas, 1996 WL 389355. =

Peggy Burwick was a patient of Dr. Michael Yuhas when she was
admitted to the hospital due to severe allergic reactions to
medication Yuhas had prescribed for headaches and high blood
pressure.  Dr. Wood, the on-call physician at the hospital, ordered
an extensive battery of tests, including an HIV test (which was
negative).  Burwick and her husband sued Yuhas and Wood for
malpractice.  At trial, the jury returned a verdict in favor of
Yuhas and the court directed a verdict in favor of Wood.  The
Burwicks appealed several aspects of the trial court ruling, and
were successful in getting the court of appeals to reverse the
directed verdict.
   
In an opinion by Judge Barney, the found that the Burwicks had
introduced expert testimony at trial that could support a jury
finding that many of the tests ordered by Wood were unnecessary,
with particular emphasis on the HIV test, as to which the expert
specifically testified that Wood violated "the requisite medical
standard of care when she ordered an HIV test. . ."  the matter was
remanded for trial of the claims against Dr. Wood.  A.S.L.
   
Wisconsin Appeals Court Rejects Challenge to Sentence of HIV+ Man
in Sexual Assault Case
   
The Wisconsin Court of Appeals ruled July 9 that the trial court
properly denied post-conviction relief to Brian Thomas, an HIV+ man
convicted of two counts of first-degree sexual assault on a young
girl.  State v. Thomas, 1996 WL 379987.  Thomas pled guilty to both
charges, but then sought to withdraw his plea.  At various times,
Thomas claimed that he received ineffective assistance from
counsel, alleging the counsel had inadequately explored the theory
that his HIV-infection might have played some role in causing him
to assault the young girl, speculating that a related CMV infection
in his brain might have affected his mental capacity.  Thomas was
sentenced on June 27, 1994, with much of the discussion focusing on
the role his HIV-status might play.  The state argued it was an
aggravating factor, since Thomas knew he was infected when he
assaulted the girl.  Thomas argued that his decreased life-
expectancy made it a mitigating factor.  He was sentenced to
consecutive 15-year sentences.  In upholding the sentence by per
curiam opinion, the courts found no merit to Thomas's arguments,
and held that the trial court could properly consider the
circumstances that he knew his HIV-status when he assaulted the
girl as an aggravating factor in sentencing.  A.S.L.
   
Georgia Appeals Court Follows Majority Rule Requiring Actual HIV
Exposure for Emotional Distress Claim
   
In a case of first impression for Georgia, the state's court of
appeals ruled June 12 that in order to win a claim for emotional
distress for fear of developing AIDS from a needlestick injury, a
plaintiff must allege actual exposure to HIV through the negligence
of the defendant.  Russaw v. Martin, 1996 WL 312516.  In an opinion
by Judge Banke, the court noted that this approach was followed by
a majority of jurisdictions, and characterized as "whimsical" and
"fanciful" the minority of decisions that allowed cases to proceed
in the absence of proof of exposure.  =

This case arose when a nurse accidentally dropped a loosely-capped
syringe that was in her pocket while she was removing some keys
while in a waiting room.  The fallen syringe struck the plaintiff,
causing a needlestick injury to her thigh.  The nurse advised that
she be tested for HIV and hepatitis B.  The test results came back
negative.  The needle had previously been used to administer
medication to an elderly patient who was not HIV-infected. =

Reversing the trial court, which had adopted the theory that the
plaintiff might recover damages for emotional distress suffered
from the time of the injury until receipt of a definitive negative
test result, the appeals court found "per se unreasonable" the
proposition that recovery for emotional injuries and mental anguish
could be allowed without any proof that the plaintiff was actually
exposed to HIV or hepatitis.  A.S.L.
   
Courts Protect Waiters Fired Due to HIV Perceptions

The Michigan Court of Appeals has affirmed a summary disposition in
favor of a woman who was suspended from her job as a restaurant
waiter due to rumors that she had AIDS.  Sanchez v. Lagoudakis,
1996 WL 394060 (July 9).  Dorene Sanchez made the initial mistake
of suing in state court solely under the Michigan Handicappers'
Civil Rights Act, which does not expressly adopt the tripartite
definition of handicap found in the ADA, and thus got caught up in
lengthy litigation (including a trip to the Michigan Supreme Court,
see 486 N.W.2d 657) on the question whether someone who suffers
discrimination because of inaccurate perceptions that they have a
disability is covered by the act.  Ultimately, however, the long
litigation trail (more than six years) may be coming to an end with
this new decision on the merits by the court of appeals.  (However,
the willingness of the defendant to drag this out through so many
appeals and reconsiderations suggests that Ms. Sanchez may have to
endure one more appeal to the state's Supreme Court before her
final victory.)
   
In the opinion, Judge Fitzgerald undertakes a systematic analysis,
premised on the understanding that the state law does protect
individuals who are misperceived by others to have a disability (as
per the state's Supreme Court).  Fitzgerald proceeds to reach
detailed findings on HIV-infection as a disability, on Sanchez
being qualified to work as waiter even if one assumes she is HIV+,
and on the restaurant's violation of her rights by requiring her to
prove she was not HIV-infected due to rumors that she had AIDS. =

Perhaps most valuable in this analysis is Fitzgerald's careful
exposition of the health and safety issues in the context of a
restaurant, and the conclusion that the state's health code
governing restaurants does not require exclusion of HIV+ people
from waiter positions, as the restaurant had argued.  =

Interestingly, the court's opinion contains no reference to the
issue that most likely weighs on the mind of restaurant owners who
find themselves in the position of employing persons with or
perceived to have HIV as waiters: the impact on customers.  This
was the main issue in a new case from Oklahoma, in which U.S.
District Judge Kern has awarded $6,548.63 in damages to Paul
Saladin, a gay man who was fired as a waiter by Terry Turner,
proprietor of the French Hen restaurant in Tulsa, Oklahoma, after
Turner learned that Saladin's partner had AIDS.  Saladin v. Turner,
1996 WL 364707, 8 N.D.L.R. para. 66 (N.D.Okla., May 24).
   
Saladin began working as a waiter at the French Hen in June 1985. =

In 1987, his partner, Ed Gaudin, was diagnosed HIV+, a fact that
became known to Saladin's fellow employees and many members of the
community.  At that time, Turner suspended Saladin briefly while he
was awaiting the result of an HIV test, which came back negative. =

In October 1992 Gaudin developed AIDS-related symptoms, stopped
working in December 1992, and was formally diagnosed with AIDS in
February 1993.  (He died during the litigation.)  Gaudin's health
problems became a topic of discussion at the French Hen, and
Saladin openly discussed these issues with fellow employees and
customers.  On September 17, 1993, Saladin's supervisor, Jennifer
Wallace, asked Saladin not to discuss Gaudin's AIDS condition while
waiting on tables, and Saladin agreed to this request.  On
September 22, Wallace met with Turner and told him about Gaudin's
AIDS condition (of which he was previously unaware) and her
instructions to Saladin.  Turner ordered that Saladin be given a
30-day suspension without pay.  During the suspension period,
Saladin came in to pick up his liquor license for use while he
worked temporarily at another restaurant.  Allegedly relying on
comments relayed from a teenage busboy, Wallace reported to Turner
that Saladin was quitting, and he was subsequently notified that he
was terminated.  The restaurant opposed Saladin's application for
unemployment benefits, but ultimately it was found that Saladin was
terminated without just cause and he was awarded benefits.  Saladin
sued under the Americans With Disabilities Act, alleging
discrimination as a person perceived as having a disability, as
someone associated with a person with a disability, and a
retaliation claim based on actions of Turner and Wallace subsequent
to the discharge.  Several weeks after the lawsuit was filed,
Turner offered Saladin reinstatement in a letter to Saladin's
attorney, but Saladin rejected the offer, articulating fears that
the job would be insecure under the circumstances.
   
Judge Kern found that Saladin had failed to substantiate his claims
on the perception and retaliation theories.  There was no
indication in the trial record that anybody at the restaurant
perceived Saladin as a person with AIDS, the actions taken against
him apparently being motivated mainly by fears that his continued
service in the restaurant would hurt business because of community
knowledge about Gaudin's illness.  Saladin had failed to raise
pertinent allegations about retaliation in his complaint to the
EEOC, and had not made any allegations about retaliatory conduct
subsequent to his filing suit.
   
Turning to the association theory, Kern found that Saladin had
easily made out a prima facie case of discrimination, and that the
defenses raised by Turner were pretextual and not supported by the
record.  Wallace's testimony was particularly damaging to Turner,
as she testified that "customers being concerned about plaintiff's
association with Gaudin was a factor in the suspension."  However,
when it came to devising a remedy, Kern seemed focused primarily on
the compensatory aspects of the ADA.  Saladin was evidently an
excellent waiter, and was able to secure employment at a similar
restaurant at similar pay, so Kern limited actual damages to pay
from the discharge until the date Turner's reinstatement offer
expired without being accepted by Saladin, Kern finding that
Saladin was not legally justified in rejecting the reinstatement
offer.  Kern also awarded only $2,500 in compensatory damages for
emotional distress, and denied Saladin's claim for punitive
damages, apparently crediting as reasonable Turner's business
concerns:
   
"Defendant was motivated, in part, by concern that the spreading of
rumors, both inside and outside the restaurant, would result in
patrons ceasing to dine there.  The closing of the French Hen would
have resulted in plaintiff, and all other employees, losing their
jobs.  The ADA requires an employer to tread carefully, observing
legal requirements while attempting to maintain customers.  While
it may be proven in a courtroom that customers' concerns about
HIV/AIDS transmission take root in `irrational fears and
stereotypes,' a restaurant owner must strike a delicate balance. =

The Court finds defendant violated the ADA, but did not do so
maliciously."
   
Finding that Saladin was the prevailing party, Kern also awarded
attorneys fees, depending upon documentation to be provided by
Saladin's counsel, in addition to the actual and compensatory
damages.  Saladin is represented by Tulsa attorneys Donald Greg
Bledsoe, Steven A. Novick, and Katrina S. Bodenhamer.  A.S.L.
   
Court Upholds Discrimination Claims by Man Denied Insurance Due to
Wife's HIV-Status
   
In Kotev v. First Colony Life Insurance Company, 1996 WL 303465
(U.S.Dist.Ct., C.D.Cal., May 30), the defendant life insurance
company, First Colony, had twice denied the plaintiff a life
insurance policy because his wife tested HIV+, even though the
plaintiff himself tested negative in both instances.  Mr. Kotev
alleged violations of Title III of the Americans with Disabilities
Act, the California Unruh Civil Rights Act, three sections of the
California Insurance Code, intentional infliction of emotional
distress, and negligent infliction of emotional distress.  First
Colony moved to dismiss.  District Judge Rea denied the motion as
to all counts except those relating to emotional distress, which
were granted without prejudice. =

The court first dealt with Kotev's Unruh Act, Cal. Civ. Code =1551,
claim. Kotev alleged that he was arbitrarily denied insurance
coverage solely on account of his association with a person in a
protected class (in this case, a person with a disability: "his
intimate and, presumably, sexual relationship with an HIV positive
woman").  First Colony argued that the policy was denied on account
of his marital status, which would not place him within the purview
of the statute.  The court rejected this argument out of hand,
finding that Kotev's allegation was based on his association with
an HIV+ person.  =

As to the claim under the ADA, First Colony argued a) that the ADA
applied only to denial of physical access to public accommodations
and b) that the denial of a policy fell under the "safe harbor"
provisions, 42 U.S.C. sec. 12201, which exclude decisions relating
to underwriting, classifying or administration of risks in a manner
not inconsistent with state law.  Judge Rea rejected the first
argument as contrary to the express statutory terms, which extend
beyond access to physical structures, and stated that courts which
had ruled otherwise had taken an unduly restrictive view of the
ADA.  The court then ruled that, as Kotev stated a claim under the
Unruh Act, a claim was stated under the ADA.  First Colony would
not be able to show that it came within the safe harbor provisions
unless it could show that it had not violated the Unruh Act or the
stated provisions of the state's Insurance Code.  The court refused
to consider whether Kotev stated a claim under the Insurance Code
because the issue was first raised in First Colony's reply brief.
   
The court granted the motion to dismiss as to intentional
infliction of emotional distress because the complaint did not
explain how the denial of coverage rose to the level of "outrageous
conduct" required to state such a cause of action.                      T=
he motion
to dismiss as to negligent infliction of emotional distress was
granted because the complaint did not articulate any special duty
of care owed to Kotev as the result of a pre-existing relationship
between the parties.  The prior denial of insurance did not create
such a relationship.  S.K.
   
Dental Patient Entitled to Name of Previous Occupant of the Chair
   
In Buchanan v. Mayfield, 1996 WL 313303 (June 12), the Texas Court
of Appeals conditionally granted Pamela Buchanan a writ of mandamus
directing a district court judge to compel W. Russell Ross, a
dentist, to disclose the name of the patient who allegedly used a
spit cup from which Buchanan drank.  Buchanan fears she might have
contracted AIDS from drinking from the cup.  She sued Ross for,
among other things, vicarious liability in not establishing an
office policy designed to prevent one patient from drinking from
another's spit cup.  The record indicated that the Jane Doe patient
twice tested negative for HIV and Hepatitis B.  The district court
denied Buchanan's motion to compel discovery of Jane Doe's name so
that she could be deposed.  The opinion is surprisingly bereft in
citation to case law.  =

The court held that the dentist was not a physician under Rule 509
of the Texas Rules of Civil Evidence, even though, like a doctor,
a dentist could prescribe drugs and perform oral surgery.  The
court relied on the definition of physician in the Texas Medical
Practice Act to arrive at this conclusion.  Therefore, the dentist
could "not claim a privilege under rule 509 to keep any
communications between him and his patients confidential."  The
court acknowledged, however, that there may be "no meaningful
distinction between a dentist and a physician for Rule 509
purposes," but felt compelled to reach its result under the
statutory language.  The dentist's "recourse is not with this court
but with the Supreme Court as the author of the Texas Rules of
Civil Evidence or with the legislature."  =

The court also found that provisions in the Texas Health and Safety
Code protecting the identity of blood donors were inapplicable. =

Nor were provisions in the same code permitting individuals exposed
to the bodily fluids of another to require that person to undergo
an HIV test availing.  While those provisions require the
destruction of identifying information of the test results once the
person requesting the information has received it, they contemplate
that the person requesting the test knows the identity of the other
person.  Health and Safety Code provisions requiring doctors to
confidentially report patients with "reportable diseases"  were
deemed to be "irrelevant."  Finally, the district court's power to
craft, in the interests of justice, discovery orders to protect
against undue burden, unnecessary expense, harassment, or invasion
of privacy, would not permit that court from preventing disclosure
of Jane Doe's name entirely.  =

The district court could, however, prevent Buchanan from disclosing
Jane Doe's identity to anyone else.  The court issued the writ only
upon the trial court's failure to set aside its order denying the
motion. M.S.R.
   
Florida Appeals Court Rejects Market-Share Theory in Factor VIII
Litigation
   
In a June 28 per curiam decision, the Florida District Court of
Appeals, 2nd Circuit, dismissed a claim arising from the death of
a hemophiliac who acquired HIV after receiving a transfusion of
Factor VIII concentrate, a blood product.  The victim's widow
brought a wrongful death action, King v. Cutter Lab., 1996 WL
354665, against four manufacturers who marketed Factor VIII
concentrate, but Mrs. King was unable to identify the specific
manufacturer or manufacturers who produced the blood product used
by her husband.  =

In granting defendants' motion for summary judgment, the trial
court rejected the plaintiff's application of the market-share
alternate theory of liability, which had been previously recognized
in a case involving diethylstilbestrol (DES).  DES was prescribed
to pregnant women for the prevention of miscarriages and later
discovered to cause vaginal and cervical cancer in the female
offspring of those patients.  Under the market-share alternate
theory, a DES plaintiff need only show that she made a reasonable
albeit unsuccessful effort to identify the manufacturer responsible
for her harm.  The court noted that the market-share alternate
theory has not been extended to other products by Florida courts
and that this theory of liability had been held inappropriate in
Celotex Corp. v. Copeland, 471 So.2d 533 (Fla. 1985), a case of
asbestos-related injury. =

Likewise, the court refused to apply the market-share alternate
theory of liability in King, reasoning that Factor VIII products
were similar to asbestos products in that each manufacturer's
Factor VIII has differing characteristics and does not present the
same risks of injury.  Furthermore, despite evidence that each
defendant's blood products in question contained the Human
Immunodeficiency Virus, the court accepted defendant's expert
testimony that the presence of HIV does not indicate that the
Factor VIII blood product is uniformly infectious.  In upholding
the trial court, the appellate judges followed Celotex and held
that the market-share alternate theory of liability did not apply
to Factor VIII. C.W.
   
9th Circuit Holds Red Cross Not Subject to Religious Freedom
Restoration Act in AIDS Education Program
   
In Hall v. American National Red Cross, 1996 WL 330816 (Jun. 18),
the U.S. Court of Appeals for the 9th Circuit ruled that the
American National Red Cross is not a government entity and
therefore not subject to the Religious Freedom Restoration Act, 42
U.S.C. secs. 2000bb et. seq. (RFRA).  The RFRA reasserts the
compelling interest test as established in Sherbert v. Verner, 374
U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972),
thereby providing a claim to individuals whose free exercise of
religion is substantially burdened by the government.
   
Herbert Ray Hall, a member of a Christian ministry, applied to be
a Red Cross-certified HIV/AIDS instructor.  Hall informed the Red
Cross that he was HIV-positive and completed the certification
class.  The Red Cross then informed him that they were not going to
hire him, stating that they feared Hall would not separate his
religious convictions from his Red Cross duties.  When Hall
threatened to take legal action, the Red Cross offered him a
"conditional certification," such that Hall's activities would be
monitored to insure that they are free of religious content. =

Claiming that the Red Cross had not taken this action in his
HIV/AIDS instructor certification class, Hall declined the offer
and brought the instant action against the Red Cross under the
RFRA.
   
Writing for the court, Judge Sidney Thomas asserted that the RFRA
applies only to the government, and the Red Cross is not subject to
the Act because it is not an "instrumentality of the United
States."  He maintained that although the Red Cross was established
to advance government objectives, it fails a structural analysis
test because the organization is not under the government's
control.  To support this finding, the court pointed to the fact
that the President appoints only eight members of the
organization's fifty-member governing board.
   
The court of appeals arrived at its judgment despite previous
rulings which held the Red Cross to be a government instrumentality
for the purpose of immunity from state taxation.  The court
reconciled this apparent contradiction by citing a number of cases
which held that the Red Cross and other organizations can be
considered government actors in some instances and not in others. =

Circuit Judge Thomas reasoned that it would be a "serious logical
and semantic error" to assume that the word "instrumentality" means
the same in all contexts. C.W.
   
HIV+ Adulterer Given Dishonorable Discharge From Marines
   
The United States Court of Appeals for the Armed Forces upheld
Marine Lance Corporal Anthony Jones's dishonorable discharge,
confinement for one year, total forfeitures, and reduction to E-1
on his conviction for adultery.  US v. Jones, 1996 WL 287967 (May
29).  =

Jones tested positive for HIV in a routine blood testing.  He was
ordered to inform sexual partners of his condition.  Thereafter, he
had sex with wife of another Marine.  He was charged with adultery
and aggravated assault.  At trial, Jones admitted that he had not
told the woman of his test result, but claimed he used a condom,
which he knew did not completely guarantee the prevention of HIV
transmission.  Jones was acquitted of aggravated assault and the
government requested that he be given a bad conduct discharge in
view of his HIV status.  Nevertheless, the military judge sentenced
Jones to the maximum penalty, including a dishonorable discharge. =

The appeals court held, per curiam, that Jones was not sentenced
for an offense he did not commit.  While an HIV+ individual should
not be treated more harshly, the failure to inform a sexual
partner, even if a condom is worn, can serve as the basis for a
conviction for aggravated assault.  Thus, Jones's status was
directly related to his offense.  "Subjecting the victim to the
risk of a fatal disease more than justifies the decision of the
military judge to consider evidence of appellant's condition."
M.S.R.
   
New York High Court Says No Review for HIV-Homeless Housing Program
   
The New York Court of Appeals held that homeless persons with
HIV-related illness were not entitled to "plenary judicial review"
of New York City's special medical needs housing program.  Mixon v.
Grinker, 1996 WL 317148 (June 11).  The court also affirmed the
Appellate Division's holding that homeless persons who suffered
HIV-related illness as defined by the AIDS Institute of the New
York State Department of Health were not constitutionally or
statutorily entitled to the same shelter and benefits the City
provides to homeless persons with AIDS as defined by the Federal
Centers for Disease Control.  =

Both the Supreme Court and the Appellate Division had held,
however, that the City's Comprehensive Care Plan for the housing of
homeless persons with HIV-related illness failed to meet minimum
standards of sanitation, safety, and decency.  The Plan housed up
to 12 such homeless persons in a dormitory-style room.  The
Appellate Division had found that this Plan failed to adequately
protect these individuals from the dangers of tuberculosis and
remitted the case to the Supreme Court to fashion a judgment
providing for minimally habitable housing.  =

The Court of Appeals rejected reliance on McCain v Koch, 70 NY2d
109, in which it held that in the absence of governmental
guidelines, the Supreme Court had the equitable power to craft such
a remedy.  Here, by contrast, the City had developed guidelines
after input by public health experts.  Thus, the Supreme Court's
equitable powers are limited to review of questions concerning
compliance and enforcement of the guidelines, said the Court of
Appeals in its brief per curiam decision.  M.S.R.
   
HIV+ Prisoner's Exclusion From Overnight Family Visitation Program
May Violate ADA & Rehabilitation Acts
   
U.S. District Judge Baird denied a motion for summary judgment by
prison officials defending against a claim that exclusion of an
HIV+ prisoner from an overnight visitation program with his spouse
is unlawful.  Bullock v. Gomez, 1996 WL 352859 (C.D.Cal. May 6). =

The California Department of Corrections takes the position that
HIV+ prisoners, who are otherwise allowed to participate in the
family visitation program on the same basis as other prisoners,
must be categorically excluded from overnight visitation with their
spouses.  In this case, brought by prisoner Grady Bullock and his
wife, Sherry Bullock, both spouses are HIV+.  They had been
participating in the overnight visitation program until 1994, when
Grady's HIV-status was discovered by prison officials.  In moving
for summary judgment, the defendants claimed that this policy was
not subject to review under either the Americans With Disabilities
Act or section 504 of the Rehabilitation Act, and, even if it was
subject to those statutes, that the Bullocks were not "qualified"
to participate in the program and "accommodation" of their
disability was not possible.
   
Judge Baird found that it was well-established that state prisons
are subject to the non-discrimination requirements of federal
disability law, taking into account the special deference normally
extended to prison officials in making policy determinations that
affect prison security.  In this case, however, the court found
that summary judgment was inappropriate because as to many elements
of the legal analysis there were questions of fact that needed to
be resolved at trial.  The plaintiffs had provided deposition
testimony from medical experts refuting many of the defendants'
arguments, and the court on its own motion seemed skeptical of the
generalized assertion of security concerns by the defendants.  Of
particular concern were the possibilities that Mrs. Bullock might
transmit an infectious condition, such as tuberculosis, to Mr.
Bullock during an overnight visit, thus introducing a dangerous
infectious agent into the prison, and that allowing overnight
visitation by the Bullocks might lead to disruptions on the part of
other inmates who were afraid of HIV exposure.  Judge Baird held
that these were issues that could not be resolved on summary
judgment, but would require a full trial.  A.S.L.
   
Negligence Claim on Incorrect HIV Diagnosis Held Time-Barred
   
U.S. District Court Judge E. Mac Troutman rejected as time-barred
a negligence action brought by Veronica Jones Baynard, who was
denied a kidney transplant after being misdiagnosed as HIV+.  In
Baynard v. Milton S. Hershey Medical Ctr. Hosp., 1996 WL 278862
(E.D.Pa., May 22), the court held that the statute of limitations
had run because Ms. Baynard did not start her suit within two years
of the date that she should have reasonably discovered that her
HIV+ diagnosis was incorrect.
   
While being evaluated for her third kidney transplant in the fall
of 1987, Ms. Baynard was told that her ELISA test result was
"slightly reactive," indicating possible HIV infection.  This was
shortly followed by an additional screening test, the Western Blot,
administered on three occasions in the fall of 1987 with
"indeterminate" results.  On the basis of these tests, Ms.
Baynard's doctors delayed her transplant surgery.  =

=46rom November 1987 until August 1990, Ms. Baynard's HIV tests
continued to generate indeterminate results except for one positive
reading.  After testing negative in August 1990, Ms. Baynard moved
to North Carolina.  From December 1991 through February 1992, she
tested negative three times and her doctor recommended that she
undergo additional testing.  In February and April 1992, her
Western Blot tests were indeterminate while an April 1992 ELISA
test was negative.  On May 14, 1992, Ms. Baynard yielded negative
results after undergoing a more sensitive DNA polymerase test.  She
was then told conclusively that she was not HIV-infected.  On May
14, 1994, Ms. Baynard filed suit, claiming that the incorrect HIV
test results prevented her from receiving a needed kidney
transplant and caused her mental distress.
   
The court granted the defendant's motion for summary judgment,
asserting that the plaintiff did not act within two years from when
she should have reasonably discovered that she received negligent
treatment.  According to the court, a reasonable patient would have
learned that she had been misdiagnosed in February 1992,
immediately after receiving the results of the last of the three-
month series of negative tests.  The court seemed to discount other
mitigating factors, including the recommendation of Ms. Baynard's
doctor that she undergo additional testing, and the indeterminate
results of the April 1992 Western Blot.   =

The court ruled that all of Ms. Baynard's claims against the
defendant are barred by the statute of limitations, including her
claim of mental distress resulting from her fear of contracting
AIDS. C.W.
   
Illinois Appeals Court Finds Confidentiality Claim Against Employer
Not Barred by Workers Compensation
   
The Illinois Appellate Court, 2nd District, ruled June 19 that a
hospital employee's claim against his employer for breach of
confidentiality regarding his HIV-status was not barred by the
Workers Compensation Act.  Goins v. Mercy Center, 1996 WL 335528. =

Scott Goins, a security officer at Mercy Center, was summoned by a
nurse to assist with restraining an emergency room patient.  While
engaged in this activity, Goins was struck with a catheter from the
patient, who was HIV+, and was exposed to the patient's blood. =

When Scott was treated in the emergency room for this injury, he
was told the patient was HIV+, and gave blood for a test. =

Subsequently, he was told that he was HIV+ but the patient was not. =

Then later he was told that the employee who gave him the results
was mixed up and he was not HIV+.  The patient subsequently died
from AIDS.  Scott and his wife filed a variety of tort claims
against the hospital, as well as a claim of violation of the AIDS
Confidentiality Act (based on hospital staff making unauthorized
disclosures about Scott's HIV test results).  The trial court
dismissed the torts claims, finding that the Workers Compensation
Law provided the exclusive remedy for employee torts claims. =

However, the trial court allowed the Confidentiality Claim to go
forward.
   
On appeal, the court, in an opinion by Judge Rathje, agreed that
the torts claims should be dismissed.  As to the Confidentiality
Claim, Rathje stated that it could be most accurately
conceptualized as a claim by a patient rather than an employee,
since Scott was acting in the capacity of a patient when he
submitted to HIV-testing after the accident.  Strictly construing
the "exclusive remedy" provision of the Workers Compensation Law,
Rathje found that it was not intended to preclude suits against an
employer under these circumstances.  A.S.L.
   
Doctor Settles HIV-Testing Case for $10,000
   
A doctor who performed an unauthorized HIV test after sticking
himself with a needle during surgery has agreed to settle a lawsuit
by the patient with a $10,000 payment plus attorneys fees to the
public interest law firm that represented the patient.  In
settlement papers filed in Gavann v. Wooldridge, C.A. No. 95-2521C
(Mass. Super. Ct., Suffolk County, July 1), Dr. Douglas Wooldridge
admitted that after sticking himself while performing cosmetic
surgery on Jeffrey Gavann in Wooldridge's office, he took a blood
sample for HIV-testing while Gavann was under anesthesia and had
the test performed without securing Gavann's authorization.  Gavann
later discovered the test had been performed when he was looking
over his medical records on a follow-up visit to Wooldridge's
office.  Wooldridge contended that he was unaware that
Massachusetts law required express patient consent for an HIV test. =

Gavann is represented by Boston's Gay & Lesbian Advocates &
Defenders through their AIDS specialist, Bennett H. Klein. A.S.L.
   
AIDS Law & Society Notes
   
The International Conference on AIDS held in Vancouver, Canada,
during July may have marked an important turning point in the
history of the epidemic.  For the first time, many news reports
emanating from the conference sounded an optimistic note, based
mainly on research reports about the use of a new class of drugs,
protease inhibitors, in conjunction with existing treatments. =

According to these reports, it may be possible to sharply lower the
presence of HIV in infected persons to virtually undetectable
levels through careful administration of these combined treatments. =

However, activists noted that the drug treatments involved were
quite expensive, imposed a severe regimen on patients, and had yet
to prove effective over longterm trials.  There was other, more
sobering, news from the conference, including evidence that the
AIDS epidemics in Central Africa and South Asia are far from being
under control, and that risky sexual behavior appears to be on the
rise among young gay men.  Also, there was little optimism on the
vaccine front.  So, while there is some indication that HIV
infection may become a manageable chronic condition with an
extended survival time for some subset of those infected, it seemed
likely that the problem of AIDS will remain a serious challenge for
millions of people for the foreseeable future.  =

Ohio State Health Department Director Peter Somani has rejected a
finding by the Ohio Equal Opportunity Center (EOC) that the
Department's HIV Prevention Unit discriminated against a gay, HIV+
employee.  Somani claimed that the supervisor whose actions were
challenged in the employee's complaint may have displayed an
antagonistic attitude to the complainant, but that there was no
indication of unlawful bias.  The employee plans to appeal the
decision to the Director of the EOC. =

The tide has begun to turn on the struggle over HIV testing of
newborn infants.  The compromise struck in Congress, under which a
voluntary counseling and testing program will be implemented, with
mandatory testing to follow if the results of voluntary testing do
not include a significant reduction in new cases of pediatric AIDS,
was evidently not strong enough medicine for New York legislators,
who passed a bill toward the end of the current session commanding
the Health Commissioner to establish "a comprehensive program for
the testing of newborns for the presence of HIV and/or antibodies
to such virus." Significantly, the amendment to the Public Health
Law did not specify providing treatment for all mothers and infants
whose positive HIV status is disclosed by the tests, or any
appropriations for such purpose. A.S.L.
   
PUBLICATIONS NOTED
   
LESBIAN & GAY & RELATED LEGAL ISSUES: =

Abrams, Kathryn, Complex Claimants and Reductive Moral Judgments:
New Patterns in the Search for Equality, 57 U. Pitt. L. Rev. 337
(Winter 1996).
   
Adams, William E., Jr., Whose Family Is It Anyway? The Continuing
Struggle for Lesbians and Gay Men Seeking to Adopt Children, 30 New
Eng. L. Rev. 579 (Spring 1996).
   
Adelman, Ronald W., The Constitutionality of Congressional Efforts
to Ban Computer-Generated Child Pornography: A First Amendment
Assessment of S. 1237, 14 John Marshall J. Comp. & Inf. L. 483
(Spring 1996).
   
Bailey-Harris, Rebecca, Financial Rights in Relationships Outside
Marriage: A Decade of Reforms in Australia, 9 Int'l J. L. & the
Family 233 (1995).
   
Chancer, Lynn S., Feminist Offensives: Defending Pornography and
the Splitting of Sex from Sexism, 48 Stanford L. Rev. 739 (Feb.
1996).
   
Coleman, Thomas F., The Hawaii Legislature Has Compelling Reasons
to Adopt a Comprehensive Domestic Partnership Act, 5 L. & Sexuality
541 (1995) (accompanied by draft statute).
   
Colker, Ruth, Hybrid: Bisexuals, Multiracials and Other Misfits
Under American Law (N.Y.U. Press) (ISBN 0814715206).
   
Duncan, Dwight G., Parading the First Amendment Through the Streets
of South Boston, 30 New Eng. L. Rev. 663 (Spring 1996).
   
Feldblum, Chai R., Sexual Orientation, Morality, and the Law:
Devlin Revisited, 57 U. Pitt. L. Rev. 237 (Winter 1996).
   
Finlay, Henry, Legal Recognition of Transsexuals in Australia, 12
J. Contemp. Health L. & Pol. 503 (Spring 1996).
   
Guthiel, Thomas G., & David N. Weisstub, Sexuality in the Mental
Health System: Patients and Practitioners, 19 Int'l J. L. &
Psychiatry 183 (Spring 1996).
   
Higgins, Tracy E., Anti-Essentialism, Relativism, and Human Rights,
19 Harv. Women's L.J. 89 (Spring 1996).
   
Jacobs, James B., The Social Construction of a Hate Crime Epidemic,
86 J. Crim. L. & Criminology 366 (Winter 1996).
   
Kovacs, Kathryn E., Recognizing Gay and Lesbian Families: Marriage
and Parental Rights, 5 L. & Sexuality 513 (1995).
   
Robertson, James E., "Fight or F . . ." and Constitutional Liberty:
An Inmate's Right to Self-Defense When Targeted by Aggressors, 29
Indiana L. Rev. 339 (1995).
   
Rosenblum, Darren, Overcoming "Stigmas": Lesbian and Gay Districts
and Black Electoral Empowerment, 39 Howard L.J. 149 (Fall 1995).
Rubin, G.R., Section 146 of the Criminal Justice and Public Order
Act 1994 and the `Decriminalization' of Homosexual Acts in the
Armed Forces, Crim. L. Rev., June 1996, at 393 (British journal).
   
Schacter, Jane S., "Counted Among the Blessed": One Court and the
Constitution of Family, 74 Texas L. Rev. 1267 (May 1996) (favorite
cases issue; discussion of Matter of Evan, co-parent adoption
case).
   
Turner, Ronald, Regulating Hate Speech and the First Amendment: The
Attractions of, and Objections to, an Explicit Harms-Based
Analysis, 29 Indiana L. Rev. 257 (1995).
   
Van Ness, Gretchen, Parades and Prejudice: The Incredible True
Story of Boston's St. Patrick's Day Parade and the United States
Supreme Court, 30 New Eng. L. Rev. 625 (Spring 1996).
   
Volokh, Eugene, Freedom of Speech and Appellate Review in Workplace
Harassment Cases, 90 N'western U. L. Rev. 1009 (Spring 1996).
   
Woodhouse, Susan Perissinotto, Same-Gender Sexual Harassment: Is It
Sex Discrimination Under Title VII?, 36 Santa Clara L. Rev. 1147
(1996).
   
Student Notes & Comments: =

Bessho, David M., The Military Ban on Homosexuals: Suspect,
Constitutional, or Both?, 12 Georgia State U. L. Rev. 845 (April
1996).
   
Hall, Stephen C., City of Edmonds v. Oxford House, Inc.: A Comment
on the Continuing Vitality of Single-Family Zoning Restrictions, 71
Notre Dame L. Rev. 829 (1996).
   
Harris, Elizabeth McDavid, Intercourse Against Nature: The Role of
the Covenant on Civil and Political Rights and the Repeal of Sodomy
Laws in the United States, 18 Houston J. Int'l L. 525 (Winter
1996).
   
Henricksen, Kelly E., Gays, the Military, and Judicial Deference:
When the Courts Must Reclaim Equal Protection as Their Area of
Expertise, 9 Admin. L. J. Amer. U. 1273 (Winter 1996).
   
Kenton, Tracy T., Quasi-Suspect Status for Homosexuals in Equal
Protection Analysis: Equality Foundation of Greater Cincinnati v.
City of Cincinnati, 12 Georgia State U. L. Rev. 873 (April 1996).
   
Statutory Protection for Gays and Lesbians in Private Employment,
109 Harv. L. Rev. 1625 (May 1996)(part of a lengthy article titled:
Developments in the Law -- Employment Discrimination).
   
Sultan, Sheryl L., The Right of Homosexuals to Adopt: Changing
Legal Interpretations of "Parent" and "Family", 10 J. of Suffolk
Acad. of L. 45 (1995).
   
Specially Noted:
   
Volume 5 of Law & Sexuality: A Review of Lesbian and Gay Legal
Issues, has been published with a cover date of 1995.  The bulk of
the issue is devoted to a survey on HIV and AIDS-related state
statutes (see below).  There are also two articles on lesbian and
gay family issues (see above).   Individual copies are available
for $18 ($12 for students) from the Review at Tulane Law School,
6329 Freret St., New Orleans, LA 70118.
   
The New York Law Journal ran pro and con op-ed articles about the
pending bill in New York to ban same-sex marriage on June 3.  The
column favoring same-sex marriage was by NY State Assembly Member
Deborah Glick, an openly lesbian legislator from Manhattan.  The
anti column was by Senator Serphin Maltese, a conservative from
Queens.
   
The July 8, 1996, issue of The New Yorker includes a profile of
Harvard Law School Professor Laurence Tribe, discussing in detail
his involvement in the Romer v. Evans case.
   
The Nordic Africa Institute in Uppsala, Sweden, has published a
pamphlet titled Human Rights and Homosexuality in Southern Africa,
written by Chris Dunton and Mai Palmberg.  The work deals with the
debate stirred up in southern Africa by the exclusion of a gay
rights organization from participation in the Zimbabwe
International Book Fair in 1995.  The book can be ordered from the
Nordiska Afrikainstitutet, PO Box 1703, S-751 47, Uppsala, Sweden. =

Credit cards may be used for ordering.
   
The July issue of the ABA Journal contained an article by Richard
C. Reuben, Gay Rights Watershed?, reporting on the victory in Romer
v. Evans (page 30), and an article by Henry J. Reske, A Matter of
Full Faith (page 32), about the national controversy over same-sex
marriage spurred by the Hawaii litigation and subsequent
legislative efforts to ban same-sex marriage.
   
Call for Papers:
   
Women's Studies scholars Barbara Moum at Ohio State University and
'Becca Cragin at Emory University are co-editors of a proposed
anthology on Lesbian-Feminism in the 90s, and are inviting 1-2 page
abstracts of proposed papers, which should be received by November
4.  Send to Prof. Moum at the Department of Women's Studies, Ohio
State University, Columbus, OH 43210 ([email-masked]
state.edu) or Prof Gragin at the Institute for Women's Studies,
Emory University, Atlanta, GA 30322 ([email-masked]).
   
AIDS & RELATED LEGAL ISSUES: =

Barron, Paul, Sara J. Goldstein & Karen L. Wishnev, State Statutes
Dealing with HIV and AIDS: A Comprehensive State-by-State Summary,
5 L. & Sexuality 1 (1995).
   
Kass, Nancy E., Holly A. Taylor, & Patricia A. King, Harms of
Excluding Pregnant Women from Clinical Research: The Case of HIV-
Infected Pregnant Women, 24 J. L. Med. & Ethics 36 (Spring 1996).
   
Lovitch, Karen S., State AIDS-Related Legislation in the 1990s:
Adopting a Language of Hope Which Affirms Life, 20 Nova L. Rev.
1187 (Spring 1996).
   
Moberly, Michael D., Perception or Reality? Some Reflections on the
Interpretation of Disability Discrimination Statutes, 13 Hofstra
Lab. L. J. 345 (Spring 1996).
   
Osborn, Malcolm E., Rapidly Developing Law on Viatical Settlements,
31 Wake Forest L. Rev. 471 (1996).
   
Senak, Mark S., HIV, AIDS, and the Law (Insight Books, New York). =

The author is Director of Planning at AIDS Project Los Angeles and
is a former legal services director at Gay Men's Health Crisis in
New York.  The book provides a useful guide to AIDS law for lay
readers.  Paperback, $15.95.  The publisher can be contacted at
212-620-8000 for information about ordering.
   
Student Notes & Comments: =

Franco, Jennifer M., Undermining the Protection of Health
Insurance: The Preexisting Condition Clause, 30 New Eng. L. Rev.
883 (Spring 1996).
   
Malloy, Suzanne M., Mandatory HIV Screening of Newborns: A
Proposition Whose Time Has Not Yet Come, 45 Amer. U. L. Rev. 1185
(April 1996).
   
Stansbury, Kevin M., Health Law -- Physician Assisted Suicide --
Due Process, The Right to Die, Equal Protection and Slippery
Slopes, Compassion in Dying v. Washington, 1996 WL 94848 (9th Cir.
March 6, 1996)(en banc), 31 Land & Water L. Rev. 623 (1996).
   
Editor's Note:
   
All points of view expressed in Lesbian/Gay Law Notes are those of
identified writers, and are not official positions of the Lesbian
and Gay Law Association of Greater New York.  All comments in
Publications Noted are attributable to the Editor.  Correspondence
pertinent to issues covered in Law Notes is welcome and will be
published subject to editing. Please address correspondence to the
Editor or send by e-mail. * * * Law Notes resumes its regularly
monthly publication schedule with the September 1996 issue. A.S.L.