From: ASLeonard@aol.com 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: asleonard@aol.com or aleonard@counsel.com Contributing Writers: Otis Damslet, Esq., New York; Julia Herd, Esq., Brooklyn; Steven Kolodny, Esq., New York; Todd V. Lamb, Esq., New York; Robin Miller, Esq., Seattle; Michael Shay Ryan, Esq., New York; 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: le-gal@interport.net LeGaL Homepage:http://www.interport.net:80/~le-gal Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln (C) 1996 by Lesbian & Gay Law Association of Greater New York $45/yr by subscription; Foreign Rate US$60 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 (bmoum@magnus.acs.ohio- state.edu) or Prof Gragin at the Institute for Women's Studies, Emory University, Atlanta, GA 30322 (bcragin@emory.edu). 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.