LESBIAN/GAY LAW NOTES
ISSN 8755-9021 November 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; 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   


EIGHTH CIRCUIT APPROVES "DON'T ASK, DON'T TELL" POLICY; SUPREME
COURT REJECTS THOMASSON PETITION   

On Oct. 3, the U.S. Court of Appeals for the 8th Circuit ruled in
an opinion by Circuit Judge Loken in __Richenberg v. Perry__, 1996
WL 560208, that the "don't ask, don't tell" policy adopted in 1993
concerning military service by openly lesbian and gay individuals
is constitutional.  Rejecting a challenge by former Air Force
Captain Richard F. Richenberg, Jr., a majority of the panel also
found that Richenberg failed at his discharge hearing to rebut the
policy's presumption that a person who says he is gay will engage
in homosexual conduct.  This follows a similar decision by the 4th
Circuit in __Thomasson v. Perry__, 80 F.3d 915 (1996)(en banc),
pet. for cert. denied (see below), and is also consistent with
__Able v. United States__, 88 F.3d 1280 (2nd Cir., July 1), which
held that the presumption contained in the policy is
constitutional, but remanded for consideration of whether it
violates equal protection for the government to treat homosexual
conduct differently from heterosexual conduct in its military
personnel policies.  

Richenberg enlisted in the Air Force in 1985, ascending to the rank
of Captain and serving in the Gulf War. After the war he began
training for the Foreign Military Sales program but in April 1993
sought separation from the service, which was denied because his
training was almost complete.  Debate in Congress about President
Clinton's advocacy of ending the ban was then going on, and
Richenberg chose that time to tell his commanding officer that he
was gay, stating: "I am forcing you to take actions which may
ultimately result in my discharge."  Richenberg's assignment to
Saudi Arabia was canceled, he was reassigned to an air base in
Nebraska, and discharge proceedings were initiated.  

At Richenberg's discharge hearing in December 1993, he stated "that
he is homosexual but does not intend to engage in prohibited
homosexual acts."  On cross-examination, "he admitted that he is
sexually attracted to men. When asked whether, if the right person
came along, he `would not be opposed to having sex with them
(sic),' he answered, `I can't say that I've entirely accepted that
yet.'  In addition, he answered that he did not know whether he
would marry a man if it were legal to do so."  The Board of Inquiry
recommended his discharge, finding that he had not rebutted the
presumption.

The court found that the presumption that openly gay people will
engage in homosexual conduct was a rational means for the military
to avoid the problems it expected might occur if members engaged in
such conduct, and that judicial review of its constitutionality did
not require heightened scrutiny.  The court stated: "The Supreme
Court applied rational basis review in reviewing a state
constitutional amendment adversely affecting homosexuals in __Romer
v. Evans__, 116 S.Ct. 1620 (1996)" and further cited __Bowers v.
Hardwick__, 478 U.S. 186 (1986).  This misrepresents the Court's
analytical approach in __Romer__, where Justice Anthony Kennedy
made clear that he was not applying the usual equal protection
formulas in evaluating Amendment 2, but rather was striking it down
as an obviously irrational violation of the Equal Protection
Clause.  There is no holding in __Romer__ that anti-gay
discrimination is normally subject only to the most deferential
rational basis review, and a different federal appeals court
recently commented that the further relevance of __Bowers__ in
equal protection jurisprudence is questionable in light of
__Romer__.  See __Nabozny v. Podlesny__, 92 F.3d 446 (7th Cir.,
Jul. 31).  

The court rejected Richenberg's contention that the policy must
fall because it "cannot be justified by any rationale other than an
irrational catering to prejudice against and hatred of
homosexuals."  The court rejected his contention that the policy
discriminates on the basis of status, noting that the Defense
Department's implementing regulations insist that "homosexual
thoughts, opinions, fantasies, or orientation" are not the basis
for discharge.  "Thus, we reject Richenberg's strident attack on
the military for catering to prejudice against those with
homosexual orientation."  Relying on Congressional testimony by
Gen. Colin Powell, the court found that Congress could rationally
have concluded that it was necessary to discharge anyone with a
"propensity" for engaging in homosexual acts, and that it is
rational to presume that openly gay people will engage in such
conduct.  The court also rejected Richenberg's argument that the
presumption is unconstitutional because irrebuttable, ultimately
finding that Richenberg's own statements at his discharge hearing
made it reasonable for the Board of Inquiry to conclude he had not
rebutted the presumption in his case.

Here, Circuit Judge Richard Arnold parted company from the
majority, arguing in dissent that the hearing record did not
support the conclusion that Richenberg failed to rebut the
presumption, and accepting Richenberg's argument that if the
presumption was applied in his case, his discharge was
unconstitutional because it was based solely on his sexual
orientation.  "Given that excessive deference to the presumption by
the Board of Inquiry would violate the First Amendment," argued
Arnold, "I would review the record de novo to ensure that the Board
of Inquiry gave Captain Richenberg a fair chance to rebut the
presumption."  Reviewing the hearing record, Arnold concluded: "The
record presents many reasons to believe him [in his assertion that
he would not engage in homosexual conduct] and insufficient reason
to doubt him." 

Arnold also noted that the Board's written decision does not
explain why it found Richenberg to have failed to rebut the
presumption, and that the Air Force Board of Review's apparent
reliance on Richenberg's statement that he was sexually attracted
to men would not suffice, since it was merely another way of saying
that he has a homosexual orientation.  Were this statement enough
to justify the Board's finding, asserted Arnold, "the presumption
would be effectively irrebuttable and, therefore,
unconstitutional."  (Significantly, the majority reacted to
Arnold's argument by stating it was taking no position as to
whether the presumption would be unconstitutional if it is
irrebuttable.)  

Subsequent news reports indicated that Captain Richenberg planned
to appeal. * * *  On Oct. 21, the Supreme Court announced its
denial  of a petition for certiorari in __Thomasson v. Perry__, No.
96-1, thus leaving unreviewed an en banc decision by the 4th
Circuit, 80 F.3d 915 (4th Cir., Apr. 5) upholding the "don't ask,
don't tell" policy.  The denial of certiorari had been widely
expected, as there is not yet a split of circuit authority on this
issue and, as a practical matter, the Supreme Court usually does
not grant certiorari on petitions by gay litigants.  (Looking back
over the history of gay rights litigation in the courts, this
writer can recall only a handful of cases where the Court has
granted a petition by gay litigants seeking to overturn an adverse
decision in the lower courts, and none within the past two
decades.)  The most likely scenario for getting this issue to the
Supreme Court is for gay rights advocates to win a decision by a
federal court of appeals holding the policy or its application in
a particular case (see Judge Arnold's grounds for dissent in
__Richenberg__) to be unconstitutional.  A.S.L.

@SEC = LESBIAN/GAY LEGAL NEWS 

Supreme Court Refuses to Deal With Same-Sex Harassment Issue

Beginning its new term on Oct. 7, the Supreme Court announced that
it would not review decisions from the 4th and 6th Circuits holding
that same-sex workplace harassment is not actionable under Title
VII of the Civil Rights Act of 1964.  Denying review in __Fleenor
v. Hewitt Soap Company__, 81 F.3d 48 (6th Cir. 1996)(No. 96-47),
and __Hopkins v. Baltimore Gas & Electric Co.__, 77 F.3d 745 (4th
Cir. 1996)(No. 95-1961), the Court declined the petitioner's
request to resolve a split in circuit authority.  Although the 5th
Circuit has held that same-sex harassment is not covered by Title
VII, several other circuits have held either by implication or
directly that such harassment may be covered.  Indeed, the 4th
Circuit has just ruled that same-sex harassment is covered by Title
VII in cases involving a homosexual supervisor harassing a
heterosexual employee of the same sex (see below). __Law Notes__
readers will note that every month we report several same-sex
harassment decisions from the lower courts, and in most months
there is a division of view among the reported cases.  A.S.L.

8th Circuit Rules Same-Sex Hostile Environment Harassment in School
Actionable Under Title IX

A new federal circuit ruling on same-sex harassment involves a
public high school student who sued her school and a teacher under
20 U.S.C. sec. 1681(a) (Title IX) and 42 U.S.C. sec. 1983. 
__Kinman v. Omaha Public School District__, 94 F.3d 463 (8th Cir.,
Aug. 26).  The case arose out of a sexual relationship between
plaintiff Janet Kinman and one of her teachers, defendant Sheryl
McDougall.  The parties disagree about who initiated the
relationship, whether it began voluntarily, and when school
officials learned about it.  The school district has a policy
prohibiting employees from sexually abusing or harassing students,
regardless of whether the conduct is unwelcome, within two years of
their leaving the district.  Kinman filed suit following her
graduation in 1990, but she also renewed the relationship, which
continued until at least 1992.  The district court granted summary
judgment in favor of the defense.

Writing for a unanimous panel, Judge Wollman began with the sec.
1983 claim against the district and school officials.  Wollman
reasoned that the defendants could only be liable on that claim if
the plaintiff proves 1) that they received notice of a pattern of
unconstitutional acts, 2) that they demonstrated deliberate
indifference or tacit approval, 3) that they failed to take
sufficient remedial action, and 4) that such failure proximately
caused harm to the plaintiff.  The record indicated that, once
alerted to the situation, the defendants investigated and, as soon
as they had proof of the accusations, began termination proceedings
against the teacher.  As a result, the court affirmed the summary
judgment in favor of the defense.

Kinman's Title IX claim was based on the theory of hostile
environment harassment; to establish a prima facie case, the court
wrote that she must show 1) that she belongs to a protected group,
2) that she was subject to unwelcome sexual harassment, 3) that the
harassment was based on sex, 4) that the harassment was
sufficiently severe or pervasive as to alter the conditions of her
education, and 5) some basis for institutional liability.  The
defense contested points 2, 3, and 5. Regarding the second element,
the court ruled that there were genuine issues of fact requiring a
trial.  As to the third element, the defense contended that
same-sex harassment was not actionable.  The court quoted its own
precedent from a Title VII case, __Quick v. Donaldson Company,
Inc.__, 90 F.3d 1372 (8th Cir. 1996), which in turn quoted Justice
Ginsburg's concurrence in __Harris v. Forklift Systems, Inc.__, 510
U.S. 17 (1993): "the proper inquiry is whether members of one sex
are exposed to disadvantageous terms or conditions ... to which
members of the other sex are not exposed."  The court decided to
apply the same standard to Title IX, and ruled that, because the
teacher had targeted the student because she was female, and had
not directed similar attentions towards male students, the
harassment was actionable.  Regarding institutional liability, the
court decided that the Title VII standard of institutional
liability should also apply in Title IX cases.  Following __Meritor
Svaings Bank v. Vinson__, 477 U.S. 57 (1986), that standard has
been to apply common law agency principles.  On this basis, the
court ruled that the district should be liable if it "knew or
should have known" of actionable conduct; in light of this
standard, the court concluded that institutional liability required
a factual determination at trial.  O.R.D.

More District Courts Rule on Same-Sex Harassment Claims

Title VII of the Civil Rights Act, passed in 1964, states that it
is an unlawful employment practice for an employer to discriminate
against any employee because of, among other things, that person's
sex.  Such discrimination includes sexual harassment.  Now the
Circuit Courts of Appeals are split on whether same-gender sexual
harassment is cognizable until Title VII.  The 5th Circuit has held
that it is not; the 8th Circuit has held that it can be, and the
4th Circuit twice declined to find that same-sex harassment claims
are never actionable (and see below).  Although the 7th Circuit has
not ruled on the merits, dicta by Chief Judge Posner indicates that
same-sex harassment would possibly be found actionable. 
__Baskerville v. Culligan Int'l Co.__, 50 F.3d 428, 430 (7th Cir.
1995).  In addition, the EEOC, charged by Congress with
interpreting, administering, and enforcing Title VII, and a number
of district courts, have found that same-sex harassment is
actionable, but many district courts have ruled otherwise.  Recent
cases from the Northern District of Illinois (in the 7th Circuit)
and the Eastern District of Pennsylvania (in the 3rd Circuit)
continue to demonstrate the split in opinion.

In __Schoiber v. Emro Marketing Co.__, 1996 WL 566948 (N.D. Ill.,
Oct. 3), the court dismissed the Title VII claim of Plaintiff
Robert Schoiber, an employee of a Speedway convenience store owned
by the defendant, who alleged that he was repeatedly sexually
harassed by his store manager, Edward Gonzalez.  (There is no
mention of Schoiber's or Gonzalez's sexual orientation.)  According
to the complaint, Schoiber was subjected to unwanted physical
touching, grabbing, and kissing, and endured continuous sexually
explicit and degrading remarks.  Gonzalez also exposed himself to
Schoiber.  Schoiber repeatedly requested that Gonzalez stop. 
Schoiber could not concentrate at work, became anxious and nervous,
had nightmares, and could not think clearly.  He complained to
defendant Emro, which did nothing.  Schoiber finally resigned in
December 1994.  

The opinion by District Judge Norgle offers a detailed and not
unsympathetic analysis of Title VII's provisions governing sex
discrimination.  Norgle focused on the legislative history of Title
VII as well as case law concerning gender discrimination and sexual
harassment.  His conclusion that Title VII was meant only to govern
"sex discrimination," with "sex" being a synonym for "gender," but
nothing broader, was based on his analysis of Congressional intent
in passing Title VII.  The judge noted that in 1964 Congress did
not specifically include sexual harassment as a cognizable claim
under Title VII.  "Hostile environment" sexual harassment, when
based on a person's sex, was found to be unlawful by the Supreme
Court only in 1986.  Norgle asserted that Congress did not seek to
protect men from harassment in the workplace, and it was only in
1983 that the Supreme Court ruled that men as well as women are to
be protected from opposite sex harassment.  The judge further noted
several unsuccessful attempts by members of Congress to amend Title
VII so as to include "affectional or sexual orientation" as illegal
bases for workplace discrimination.  

From this history, he concluded that Congress had a narrow intent
concerning coverage under Title VII, which was only to cover
"gender" discrimination, and not "homosexuality," for instance.  He
thus found that claims based on sexual conduct or concerning
matters of sex are not actionable under Title VII unless the issue
of the plaintiff's gender is of paramount importance in the reason
for the harassment.  Because the plaintiff and defendants in
__Schoiber__ were all men, the court would not read Title VII
expansively to include the sexual harassment involved as
actionable. 

Norgle faulted those decisions that found Title VII to encompass
same-sex harassment for "jumping directly" into an analysis of
whether the plaintiffs satisfy the elements of traditional hostile
work environment sexual harassment test without satisfying the
"because of sex" question.  He noted that traditional sex
discrimination does occur between members of the same gender and
that some of these claims could be brought under Title VII, as for
instance where a woman hires only men and refuses to hire women
"because of sex."  He also admitted that sexual harassment does
occur between men and between women, but concluded that Title VII's
drafters did not intend to protect one gender from the sexual
conduct of those of the same gender.

In looking for precedents, Norgle found helpful __Ulane v. Eastern
Airlines, Inc.__, 742 F.2d 1081 (7th Cir. 1984).  __Ulane__
involved a non-traditional fact pattern: the plaintiff was a male
to female transsexual.  The FAA had certified the plaintiff for
"flight status" as a female but the defendant had discharged her,
it was found, because of her transsexualism.  The 7th Circuit held
that she did not have an action under Title VII; although Title VII
protects workers from discrimination "because of sex," this phrase,
construed narrowly, does not include transsexualism.  Similar to
the holding in __Ulane__, the judge concluded that the phrase
"because of sex" also does not include same-gender actions.  He
concluded that although plaintiff Gonzalez's actions met the
general definition of blatant "sexual harassment," they are not
Title VII violations.

The opinion noted that Congress could choose to enact a law to
protect workers from same-sex sexual harassment which could protect
transvestites, transsexuals and homosexuals.  But Title VII is not
that law. (Five days later, Judge Norgle issued a similar ruling in
__Torres v. National Precision Blanking__, 1996 WL 587556 (N.D.Ill.
Oct. 8), repeating essentially the same analysis.)

In __Ward v. Ridley School District__, 1996 WL 570487 (E.D.Pa. Oct.
4), plaintiff James Ward, a mentally retarded man who suffers from
a mild personality disorder and epilepsy, alleged that he was the
victim of a hostile work environment created by physical and sexual
harassment of two male co-workers.  According to Ward's complaint,
in early 1992, his ninth year of employment as a custodian, the two
co-workers began subjecting him to ongoing indignities, including
once banging his head against a wall, repeatedly pushing him up
against a wall and punching him in the chest and stomach, and once
threatening him with a pocket knife.  In addition, one of the
defendants exposed his anus and genitals to Ward and solicited
genital contact.  Ward told his supervisor about this conduct on
June 18, 1992, and told his family the next day.  He never returned
to work.  However, when the director of administrative services for
the school district heard of some of these incidents, three days
after Ward told his family, he suspended one of the defendants for
five days without pay.  

According to 3rd Circuit rulings, in order for the plaintiff to
establish a claim of hostile work environment, he must show that
(1) the employee suffered intentional discrimination because of his
sex; (2) the discrimination was pervasive and regular; (3) it
detrimentally affected the plaintiff; (4) it would detrimentally
affect a reasonable person of the same sex in that position; (5)
there existed respondeat superior liability.  

The defendant school district argued that summary judgment should
be granted because Ward had failed to establish that he suffered
intentional discrimination "because of" his sex and because he
failed to establish the existence of respondeat superior liability. 


The opinion by Judge Kelly voiced outrage at the "puerile and
repulsive workplace behavior" of the defendants, but ultimately
found that the conduct was not actionable under Title VII.  Judge
Kelly indicated that this court agreed that same-sex sexual
harassment __is__ actionable under Title VII.  However, Kelly was
not convinced that the actions described in the instant case
occurred "because of" Ward's sex.  Simply because the conduct has
sexual content or innuendo and is offensive, it does not implicate
Title VII unless the conduct was directed toward the employee
"because of" his status as a man.
  
In this action, it was established that neither the plaintiff nor
defendants are homosexual.  However, the plaintiff argued that it
was due to his lack of stereotypical manliness, as well as his
obvious lack of sexual experience and knowledge, that he became the
target of the defendants' conduct, i.e., because of his specific
male attributes and qualities, he was harassed and sexually
harassed because of his sex. The court disagreed, finding that
while the conduct was "repulsive," it had not occurred because of
Ward's sex.  "To simply make all harassment with sexual overtones
actionable without the existence of discrimination would be to read
the word discrimination out of the statute," said Kelly, quoting
__Martin v. Norfolk S. Ry.__, 926 F. Supp 1044, 1050 (N.D. Ala.
1996).  

Concerning the issue of respondeat superior, the court held that
since Ward had never told anyone about the harassment until the day
before he stopped working, and none of his co-workers was aware of
its occurrence, the defendant could not then be held liable for
instances of harassment when it had no notice or knowledge of the
harassment and was not given the opportunity to remedy the
situation. J.H.  

[Note: BNA's __Daily Labor Report__ No. 204, 10/22/96, reported yet
another same-sex harassment case, __Huddleston v. Lumbermens Mutual
Casualty Co.__, No. 95-CV-2483, D.Kans., 9/25/96, in which District
Judge Van Bebber refrained from ruling on whether same-sex
harassment would be actionable because, in this case, he found that
the allegations were insufficient to meet the Supreme Court's test
for establishing a hostile environment. A.S.L.]

4th Circuit Upholds Same-Sex Harassment Claim By Heterosexual
Employee Against Gay Supervisor and Co-Workers

A divided panel of the U.S. Court of Appeals for the 4th Circuit
has ruled that same-sex harassment is actionable under Title VII if
the harasser is homosexual and the harassee is heterosexual. 
__Wrightson v. Pizza Hut of America, Inc.__, 1996 WL 628257 (Oct.
31).  Addressing a question expressly reserved in __McWilliams v.
Fairfax County Bd. of Supervisors__, 72 F.3d 1191 (4th Cir.), cert.
denied, 65 U.S.L.W. 3240, 3257 (Oct. 7)(see above), two members of
the panel concluded that when a heterosexual employee is subjected
to sexually aggressive conduct by homosexual employees, such
conducted is motivated by the gender of the victim and thus
theoretically comes within the framework of Title VII's ban on
discrimination because of sex.

Arthur Wrightson was 16 years old when employed at a Pizza Hut
restaurant from March 1993 until March 1994.  He alleges that his
supervisor and 5 of his co-workers were gay men, and three of his
co-workers were non-gay men.  Wrightson claims that in November or
December 1993 his supervisor and the other gay employees began
subjecting him and the other non-gay employees to harassing
conduct, including unwanted touching, kissing, sexual
solicitations, and sexually-charged conversation.  Wrightson
claimed that none of the gay employees was subjected to such
harassment by the supervisor or other gay employees.  Wrightson
alleged that he and his mother protested to the management of the
Pizza Hut agency, but that the management did not effectively stop
the harassment.  Wrightson predicated his claim on the "hostile
environment" theory.  The district court dismissed the claim in
reliance on __Garcia v. Elf Atochem North America__, 28 F.3d 446
(5th Cir. 1994), which held that same-sex harassment was not
cognizable under Title VII because Congress intended the statute to
protect women from discrimination by men.

Circuit Judge Luttig rejected the __Garcia__ precedent.  "An
employee is harassed or otherwise discriminated against `because
of' his or her sex if, `but-for' the employee's sex, he or she
would not have been the victim of the discrimination.  As a matter
both of textual interpretation and simple logic, an employer of
either sex can discriminate against his or her employees of the
same sex because of their sex, just as he or she may discriminate
against employees of the opposite sex because of their sex.  That
is, a male employer who discriminates only against his male
employees and not against his female employees, and a female
employer who discriminates against her female employees and not
against her male employees, may be discriminating against his or
her employees `because of' the employees' sex, no less so than may
be the employer (male or female) who discriminates only against his
or her employees of the opposite sex.  In all four instances, it is
possible that the employees would not have been victims of the
employer's discrimination were it not for their sex.  There is, in
other words, simply no `logical connection' between Title VII's
requirement that the discrimination be `because of' the employee's
sex and a requirement that a harasser and victim be of different
sexes," wrote Luttig.  Given the allegations about the sexual
orientation of the harassers and the harassees, it seems clear here
that Wrightson was credibly alleging that he and his non-gay male
colleagues were subjected to harassment because they are male.  "He
has presented a cognizable claim not only that he was sexually
harassed by his homosexual supervisor and co-workers, but also that
he would not have been harassed but for the fact that he is a
male."  

Pizza Hut contended that this was actually sexual orientation
discrimination because the supervisor was not harassing all men,
but only heterosexual men, and thus not covered under Title VII. 
Rejecting this argument, Luttig observed that "Wrightson does not
allege that he was discriminated against because he is
heterosexual. . .  The unequivocal allegation that he was
discriminated against `because of his sex,' which, for purposes of
Rule 12(b)(6) must be accepted as true, is alone sufficient to
withstand Pizza Hut's motion to dismiss, and more than adequate
when coupled with his allegations that the harassers were
homosexual and that other males (and no females) were the targets
of the harassment.  Of course, even had Wrightson alleged that he
was discriminated against both because he was heterosexual and
because he was male, he would still state a claim under Rule
12(b)(6)" so long as his gender was a reason for the harassment.

This reasoning struck dissenting Circuit Judge Murnaghan as wrong. 
Murnaghan emphasized that Wrightson's harassers "could be found
liable for breaking the law and held responsible for damages. 
State causes of action for assault, assault and battery, and
intentional infliction of emotional distress readily come to mind. 
Moreover, Pizza Hut, as an employer, allegedly took grossly
inadequate steps to halt the behavior of [the supervisor] and the
other homosexuals and should be held liable to Wrightson too,
perhaps on respondeat superior grounds, if not directly." But
Murnaghan argued that Title VII was not the appropriate vehicle for
such redress.  Emphasizing the sparse legislative history
accompanying the inclusion of "sex" in the statute in 1964,
Murnaghan argued that "as `sexual' activity between two male, or
female, heterosexuals does not fall within Title VII's ambit,
neither logically may `sexual' activity between two male, or
female, homosexuals be actionable." Murnaghan contended that to
find a Title VII cause of action here would be contrary to
established federal circuit precedents finding no cause of action
for discrimination based on sexual orientation. A.S.L.

Ninth Circuit Finds Government's Appeal in Cammermeyer Army Case to
Be Moot

A unanimous panel of the U.S. Court of Appeals for the Ninth
Circuit ruled on Oct. 7 that the government's appeal of the U.S.
District Court's decision ordering reinstatement of Margarethe
Cammermeyer to her position with the Washington State National
Guard is moot.  __Cammermeyer v. Perry__, 1996 WL 566877. 
Cammermeyer's discharge for stating that she is a lesbian took
place under the Defense Department policies prevailing prior to the
current "don't ask, don't tell" policy.  District Court Judge Zilly
found the prior policy unconstitutional and ordered Cammermeyer's
reinstatement.  

Writing for the court, Circuit Alex Judge Kozinski observed that
Cammermeyer's discharge had been found improper under the standard
established by the 9th Circuit in __Meinhold v. United States Dep't
of Defense__, 34 F.3d 1469 (1994), and that defendants had conceded
as much, but were arguing now that Judge Zilly should not have
declared the policy unconstitutional in reaching that decision. 
Noting that Congress changed the policy in 1993, and that the
defendants were not now seeking to discharge Cammermeyer anew,
Kosinski found that the question whether the prior policy was
unconstitutional is moot, noting circuit precedents holding that
"as a general rule, if a challenged law is repealed or expires, the
case becomes moot. . . We see no reason to deviate from this
approach here."

However, the court did not follow this determination of mootness
with an order vacating the district court's decision.  Observing
that recent cases have suggested that whether to vacate a district
court decision is a matter of equity, the court decided to dismiss
the appeal and remand the case to Judge Zilly for a determination
whether his decision should be vacated.  Although the government
had asked the court, as an alternative to reversing the district
court on the merits, to vacate the district court's decision as
moot, Kosinski suggested that the equities did not necessarily call
for such action, since, after all, it was the government which had
mooted the case by adopting a new policy and reinstating
Cammermeyer.

Cammermeyer is represented by Mary Newcombe and Sheryl Michaelson
of Hedges & Caldwell, Los Angeles, with local counsel Jeffrey I.
Tilden and Michael Himes of Perkins Coie, Seattle, and amicus
assistance from Lambda Legal Defense Fund and the National Lawyers
Guild.  A.S.L.

3rd Circuit Refuses to Rule on Religiously-Based Attack on New
Jersey Gay Rights Law

Ruling for at least the third time on a lawsuit filed in 1992 to
challenge the constitutionality of a New Jersey statute that bans
sexual orientation discrimination in employment, housing and public
accommodations, a unanimous panel of the U.S. Court of Appeals for
the 3rd Circuit has rejected the argument that the statute facially
violates constitutional rights, and exercised its discretion to
abstain from any ruling on the merits of whether the statute would
violate the constitutional rights of the plaintiffs as applied to
them.  __Presbytery of New Jersey of the Orthodox Presbyterian
Church v. Whitman__, 1996 WL 617418 (Oct. 25).

New Jersey amended its Law Against Discrimination in 1992 to add
"affectional and sexual orientation" to the list of characteristics
that may not be the basis of discrimination in employment, housing
or public accommodations.  Almost immediately, the New Jersey
branch of the Orthodox Presbyterian Church, a Christian
fundamentalist group, filed suit in Federal court seeking a ruling
that this amendment violated the constitutional rights of the
church, its ministers and its members.  After several rounds of
litigation and two appeals to the 3rd Circuit, the case finally
boiled to two issues: whether the law was facially invalid in
penalizing "aiding and abetting" somebody to discriminate based on
sexual orientation, or whether application of the law to Reverend
Cummings, an individual plaintiff, for his anti-gay activities,
would violate his constitutional rights.

As to the former issue, the court of appeals, in an opinion by
Circuit Judge Nygaard, agreed with the district court that the
facial challenge must fail.  Referring to a 1984 decision by the
Supreme Court discussing facial challenges to statutes, Nygaard
observed that the Court "noted that a statute may be declared
facially invalid if it is `apparent that any attempt to enforce
such legislation would create an unacceptable risk of the
suppression of ideas.'  That is plainly not the case here,"
insisted Nygaard, providing examples of perfectly constitutional
applications of the aiding and abetting provisions, such as
prosecuting somebody who offers a monetary reward to employers for
discriminating against gay job applicants.  

Turning to the "as applied" challenge, Nygaard wrote that the
district court "correctly applied Pullman abstention," a doctrine
advising district courts to refrain from ruling on the
constitutionality of state laws where there is an unsettled issue
of state law whose resolution might obviate constitutional
problems.  In this case, the New Jersey courts have never applied
the sexual orientation law in a way that would violate the
religious free exercise rights of the church or its ministers. 
(Indeed, the Attorney General stated during this litigation that
the government did not consider the church to be a "public
accommodation" subject to the law, and had no intention of
prosecuting any minister of the church for any statements the
minister might make about homosexuality.)  Nygaard noted that it
was possible that if put to the test, New Jersey courts would
construe the law in a way that would avoid the constitutional
problems raised by the plaintiffs, and pointedly observed that the
plaintiffs had never availed themselves of the opportunity to use
the state's declaratory judgment act to secure an interpretation of
the law that would protect their freedom to speak out against
homosexuality.  

Finally, in terms of weighing the merits of abstention, the court
observed: ". . .the potential for disruption of important state
policies is manifest.  For many decades, the Law Against
Discrimination has been a powerful tool in New Jersey's war against
discrimination.  Were we to erroneously construe it to reach
appellants' conduct and then find it violative of the First
Amendment, we could eviscerate the entire aiding and abetting
prohibitions, not only for sexual orientation, but for race, gender
and creed as well."  

Given the persistence of their litigation through numerous adverse
district and circuit court rulings, it seems inevitable that the
plaintiffs (funded by the anti-gay Rutherford Institute) will seek
Supreme Court review, so the epic saga of their challenge to the
N.J. gay rights law may not yet be over.  A.S.L.

North Carolina Appeals Court Awards Custody to Gay Father

Reversing a homophobic decision by Henderson County, North
Carolina, District Court Judge Deborah M. Burgin, the Court of
Appeals of North Carolina has awarded custody of two young boys to
their gay father.  __Pulliam v. Smith__, 1996 WL 589174 (Oct. 15). 
Writing for the court, Judge Edward Greene held that harm to the
children could not be presumed from exposure to their father's
"active homosexuality," thus placing North Carolina among the
majority of states that now require competent evidence that the
parent's homosexual conduct is detrimental to the children before
finding a gay parent unfit for custody.

Frederick and Carol Smith were married in 1982 and had two
children, Joey born in 1985 and Kenny born in 1988.  The Smiths
separated in 1990 and Carol moved to Kansas to live with William
Pulliam.  A California court granted a divorce in 1991, and the
parties agreed that Frederick would have custody of the children. 
After the divorce, the children lived in North Carolina with
Frederick and his grandmother, and spent summers with their mother
in Kansas.  In 1993, Carol married Pulliam.  In August 1994,
Frederick's grandmother moved out and his new lover, Tim Tipton,
moved in.  When Carol found out about this development, she
petitioned for a change of custody.  

As related by the court, "Both Tipton and the defendant are gay. 
They sleep in the same bed which is located in a bedroom across the
hall from the children's bedroom.  Although they occasionally
openly embrace and kiss each other, sexual activity occurs in the
privacy of their bedroom. . . .  After the defendant informed Joey,
at the request of the plaintiff, of his sexual orientation, Joey
became `visibly upset' and began to cry."  There was testimony
about parties Frederick and Tipton held in the home for their gay
friends, indicating that "the boys stayed at their great-
grandmother's house because the defendant thought there may be
drinking and didn't think that was a proper atmosphere for the
boys."  Joey, who was old enough to testify, said that he likes
Tipton and expressed no preference as to where he would live. 
Carol testified that she thought the children would be better off
in her custody because of the "impact of the homosexual thing."

Apparently without benefit of any relevant expert testimony,
District Judge Burgin found that Frederick's conduct was "not fit
and proper and will expose the minor children to unfit and improper
influences. . .  That there is a possibility of exposing children
to embarrassment and humiliation in public because of the
homosexuality of the Defendant and his relationship with Tim
Tipton."  Burgin also found that "the Defendant is not providing a
fit and proper environment for the rearing of the two minor
children.  Living daily under conditions stemming from active
homosexuality practiced in the Defendant's home may impose a burden
upon the two minor children by reason of the social condemnation
attached to such an arrangement, which will inevitably afflict the
two children's relationship with their peers and with the community
at large."  Pouncing on the testimony that Joey cried when told his
dad was gay, Burgin concluded that "the minor child Joey may
already be experiencing emotional difficulties because of the
active homosexuality of the Defendant" and that it is "likely" that
Kenny will experience such difficulties as well.  Burgin concluded
that Frederick's homosexuality and his relationship with Tipton "is
detrimental to the best interest and welfare of the two minor
children" and that this change in circumstances justified changing
custody to Carol.

Appeals Judge Green totally rejected Burgin's findings about
adverse impact on the children.  "The order must . . . fail because
the findings which do support the conclusion are not supported by
evidence in the record," he wrote.  "All three of these findings
reflect nothing more than the opinion of the trial court that the
conduct of the defendant necessarily exposes the children to
`improper influences' that will likely cause Kenny `emotional
difficulties' and is generally `detrimental to the best interest
and welfare' of both children.  This was error.  Our courts have
been consistent in rejecting the opinion that conduct of a parent,
ipso facto, has a deleterious effect on the children. . . .  There
must be evidence that the conduct has or will likely have a
deleterious effect on the children.  In this case there is no
evidence that the defendant's homosexual relationship with Tipton
has or will likely have a deleterious effect on the children or
that the defendant was otherwise an unfit parent.  In fact the
evidence reveals that the children are well adjusted, attend school
regularly, make good grades, and participate in after school
athletics."

Green specifically distinguished this case from __Bottoms v.
Bottoms__, 457 S.E.2d 102 (Va. 1995), noting that the opinion in
that case recited evidence about "disturbing traits" exhibited by
the young boy while he was living with his lesbian mother and her
partner.  "In this case there is no evidence of any such
demonstrations by the children.  Although there is evidence that
Joey did become upset upon learning that his father is gay, there
is no evidence that he was experiencing `emotional difficulties' as
suggested by the findings of the trial court."

Instead of joining Judge Green's opinion, concurring Judges John
and Martin joined in a terse statement by John that "significant
portions of the trial court's findings of fact. . . are unsupported
by competent evidence of record.  Accordingly, under our law the
court's order is defective and must be reversed."  Neither judge
stated a reason for not joining Green's opinion.

Carol Pulliam's attorney, Phillip T. Jackson, announced that he
would file an appeal in the state supreme court.  Frederick is
represented by Sharon A. Thompson, Ellen W. Gerber and John H.
Boddie of North Carolina Gay & Lesbian Attorneys, and Beatrice
Dohrn and Steven M. Tannenbaum for Lambda Legal Defense & Education
Fund.  A.S.L.

Wisconsin Appeals Court Rules on Emotional Distress Claim in
Lesbian Roommate Case

The issue in __State ex. Rel. Sprague v. City of Madison__, 1996 WL
54409 (Wisc. App. Sept. 26), was whether the Madison Equal
Opportunity Commission (MEOC) had the authority to award damages
for emotional distress in a case where the complainant, a lesbian
victim of housing discrimination, had been awarded economic
damages.  The Wisconsin Court of Appeals ruled that the MEOC did
not have such authority.

The complainant, Caryl Sprague, answered an advertisement for a
roommate posted by the Respondents in April 1989.  The record on
appeal indicates that the Respondents, who knew of her sexual
orientation, accepted her security deposit on May 4, but withdrew
their acceptance the next day, specifically because they were
uncomfortable with her sexual orientation.  Sprague lost a $300
security deposit on another apartment in the interim.

Sprague filed a complaint with the MEOC, alleging violation of
equal access to housing based on sexual orientation, which is
prohibited under sec. 3.23 of the Madison General Ordinances.
Sprague prevailed in an administrative hearing, and was awarded the
$300 lost security deposit, $2,000 for emotional distress, $1,000
punitive damages, costs and attorneys fees.  The Respondents
appealed, and on appeal, the MEOC reversed, ruling that the
ordinance was not intended to cover roommate situations.  Sprague
petitioned the circuit court for a writ of certiorari, and in
August 1993, the circuit court reversed the MEOC appellate
decision, stating that the ordinance in question did apply to
roommate situations, retained jurisdiction over the matter, and
remanded for further consideration.  The MEOC reversed the hearing
officer's determination as to punitive damages, but increased the
award for emotional distress to $3,000.

The Appellate Court ruled that at the time that the action arose 
the ordinance did not specifically allow for imposition of
non-economic damages.  Indeed, the state's enabling legislation
which allows municipalities to address discrimination in housing
did not authorize imposition of awards of non-economic damages. 
While, as remedial legislation, the ordinance in question was to be
construed broadly, it could not be read so broadly.  While the
award relating to emotional distress was reversed, the court
specifically ruled that Sprague, the complainant, was the
prevailing party because she was awarded her lost security deposit. 
Therefore, she was entitled to her attorney's fees.

Since this action began, the Madison Equal Opportunity Ordinance
was revised to exclude roommate situations,  and the state's
procedures for the imposition of non-economic damages by hearing
officers were clarified.  S.K.

California Appeals Court Finds Homophobic Minister Collaterally
Estopped From State Law Claim About His Dismissal From Human Rights
Commission

A unanimous panel of the California Court of Appeal, 1st District,
ruled Oct. 2 that Reverend Eugene Lumpkin, Jr., was collaterally
estopped from litigating in state court his claim that his
dismissal from the San Francisco Human Rights Commission by former
Mayor Frank Jordan for making homophobic public pronouncements
violated his rights under the state's Fair Employment and Housing
Act (FEHA).  __Lumpkin v. Jordan__, 57 Cal.Rptr.2d 303, 71 Fair
Empl. Prac. Cases (BNA) 1786.  When Lumpkin first filed suit
alleging a violation of the FEHA and the federal constitution,
Jordan removed the case to federal court, where the district judge
found that the reasons presented by Jordan for dismissing Lumpkin
overcame any burden on his religious free exercise rights.  The
district court refused to exercise supplemental jurisdiction over
Lumpkin's FEHA claim, dismissing it without prejudice.  Lumpkin is
appealing the district court's decision to the 9th Circuit. 
Meanwhile, he filed a new FEHA action in state court and the trial
judge held him collaterally estopped from proceeding in this forum.
Affirming this decision in an opinion by Judge Champlin, the court
of appeal found that the federal district court decision
necessarily decided against Lumpkin the very same questions that
would need to be litigated under the religious discrimination
provisions of the FEHA, and the parties in both actions were
identical.  (Lumpkin's appeal in the 9th Circuit was argued on
April 8.) A.S.L.

Court Imposes Sanctions on Attorney Representing Lesbian Partner in
Dissolution Litigation

Rule 11 sanctions against the attorney and the law firm
representing the spurned partner in a failed lesbian relationship
were proper imposed, because the claims in the partner's complaint
were baseless, held the State of Washington's Court of Appeals, in
__Madden v. Foley__, 922 P.2d 1364 (Sept. 3).  The partner sued her
former lover for breach of a "non-marital agreement"; in the same
action, she sued two other women for numerous torts that the court
characterized as amounting to a claim of alienation of affection.

The court held that the attorney failed to conduct a reasonable
investigation into the spurned partner's claims, and that a
reasonable investigation would have discovered that the claim
against the former lover, for payment of one-half of the equity in
the house they had shared, was premature, while the claims against
the other two women were precluded by the judicial disavowal, in
1980, of the tort of alienation of affection.  The court expressly
held that the lesbian, rather than heterosexual, nature of the
parties' relationship did not serve to retain tort liability for
alienation of affection.  Accordingly, the claims were not
"warranted by law," within the meaning of Rule 11, and the
imposition of sanctions was within the sound discretion of the
trial court.

The court further held that the $2,000 award was reasonable under
the circumstances, and that, since the attorney signed the former
partner's complaint as an agent of his law firm, the sanctions were
properly assessed against the firm as well as the attorney
personally.  R.M.

Louisiana Appeals Court Reverses Conviction in "Gay" Kidnapping
Case on Due Process Grounds

A divided panel of the Louisiana Court of Appeal, 4th Circuit, has
reversed the robbery and kidnapping convictions (and 99 years
without parole prison sentence) of Alfred Oliver, finding that
Oliver's due process rights were violated by the failure of the
prosecutor to turn over written statements that could have been
used at trial to impeach the credibility of a key prosecution
witness.  __State v. Oliver__, 1996 WL 583368 (Oct. 11).  Alfred
Oliver, a self-identified bisexual man, was charged with armed
robbery and two counts of kidnapping.  Oliver's defense was that he
was framed by the two alleged victims of his crime, Levon Coleman
and Ramon Gray, because he had broken off a homosexual relationship
with Coleman, who was still in love with him.  Coleman admitted to
being gay, but denied having had a homosexual relationship with
Oliver.  Gray denied being gay; Oliver alleged that he had
previously had a homosexual relationship with Gray.  Oliver
presented alibi testimony that placed him far from the alleged site
of the crime.  Gray's credibility was a key issue at the trial, and
the prosecution withheld statements that Gray had made to police
that differed in some respects concerning the sequence of events
during the alleged robbery and kidnapping from his testimony in
court.  A majority of the court found that had the defendant been
given access to this material, he could have impeached Gray and
perhaps persuaded the jury that Gray's testimony was not credible,
then falling back on the alibi testimony to acquit Oliver. The
dissenting judge found this speculative, and argued that the
withholding of Gray's statements was harmless error.  A.S.L.

Montana Supreme Court Justices Debate Characterization of Testimony
About "Sexual Preference" 

In __State v. Ford__, 1996 WL 596205 (Oct. 17), justices of the
Montana Supreme Court engaged in open debate about how the court
should evaluate the defendant's objection on appeal to evidence
about his sexual orientation introduced at trial and mentioned
during the prosecutor's closing argument.  All of the judges
agreed, however, that regardless how the evidence was
characterized, Ford's conviction should be affirmed.

Earl Ford was charged with the offense of "sexual intercourse
without consent," a felony under Mont.C.A. sec. 45-5-503.  During
the jury trial, record evidence showed that one Brad Stahl (whose
age is not specified but who presumably was above the age of
consent in light of the offense charged) was sleeping on the couch
in Ford's trailer as an invited guest after attending a barbecue. 
The Supreme Court summarized Brad Stahl's testimony as follows: 
"[He] was not quite asleep when he felt something placed over his
mouth, and was then unable to breath.  When he regained
consciousness, he realized that someone's penis was in his anus. 
Although awake, he was disoriented and unable to move.  When
finally able to move, he went into the bathroom and discovered that
he was not wearing any clothes.  He walked back into the living
room, found his clothes under the couch, and put them on.  Ford
then sat down next to him on the couch.  Brad attempted to leave
the trailer, but Ford rubbed baby-oil on his back, and tried to
convince him to lie down and go back to sleep. Again, Brad
attempted to leave, but Ford pushed him into his bedroom and onto
the bed.  Brad exited the bedroom, and was finally able to leave
the trailer.  Feeling unable to drive, he slept in his truck for
one hour.  He then woke up, drove to his uncle's house, and slept
in his truck for three more hours."  Brad returned to the trailer
with some relatives the next day to confront Ford, who confessed
what he had done, apologized, and returned Brad's underwear.  Brad
went to the police and had a medical exam which confirmed that he
had been penetrated anally.  Brad claimed that he had been drugged
by Ford prior to the incident.  There was corroborative evidence
for those portions of Brad's story where others were present.

Ford testified in his own defense.  During cross-examination, the
prosecutor asked where he had "an interest in homosexuality."  The
court overruled objections to the question, Ford answered
affirmatively, and on further questioning explained that "I just
have an interest in men."  Under further questioning, Ford
classified himself as bisexual.  Later, during closing arguments
and over objections, the prosecutor said: "We have a man that
admitted he is bisexual.  That's exactly what he is charged with
doing.  What he does with consent with somebody, I don't give a
rip.  But Brad cares what happened to him."  There was also
evidence that Ford had previously been convicted in California for
felony child molestation and served a prison term there.  The jury
found Ford guilty in this case, and he was sentenced to 100 years
in prison without eligibility for parole or work release, and Ford
appealed.  The local public defender office filed a brief, as
required by the court, contending that "there are no meritorious
appealable issues in this case."

Of course, Ford contended that the questioning and later argument
concerning his sexual orientation was prejudicial and irrelevant.
In an opinion for the court, Justice Trieweiler found the trial
court's decision to allow this questioning was not reversible
error.  "We hold that, based on the facts of this case, the
probative value of the State's evidence was not substantially
outweighed by the danger of unfair prejudice."  Trieweiler noted
that there was "the potential for prejudice in this situation," and
cautioned "prosecutors and district courts not to assume, based on
this opinion, that evidence of a defendant's sexual preference
would be admissible under most circumstances."  In this case,
however, "Ford's sexual preference was relevant to, and probative
of an essential issue in this case.  Ford was charged with sexual
intercourse without consent, committed upon a person of the same
gender.  The State's questions on cross-examination, and statements
during closing argument, were probative of whether Ford fit the
profile of someone who would commit the act for which he was
accused.  This is especially true given the fact that, because of
the nature of the crime, not all members of society would fit the
perpetrator's profile."  Trieweiler reviewed the overwhelming
evidence of Ford's guilt and concluded, "The possible impact of the
jury's knowledge that Ford was bisexual pales by comparison to the
likely impact of the overwhelming evidence of his guilt."  

The court also rejected Ford's argument that the 100-year sentence
violated his 8th Amendment rights, noting that he fit the profile
of a "persistent felony offender" for which sentencing guidelines
authorized a maximum sentence of 100 years without parole.  The
court noted in this context the following factors considered by the
trial court: "the facts of the instant crime; his prior criminal
history of sexually preying on young boys; previous attempts by
professional therapists and state officials to treat his problems;
his apparent unwillingness to accept the provided treatment; and
his predatory nature."

The court's handling of the sexual orientation issue generated a
concurring opinion by Justice Leaphart, to which Justice Trieweiler
wrote a separate brief reply opinion.  Leaphart stated disagreement
with the court's conclusion that evidence of Ford's sexual
orientation was "probative" of guilt, arguing that "Character
traits pertaining to sexuality or sexual preference have
specifically been held to fall within the character evidence
prohibition of [Montana Rules of Evidence] Rule 404(a)(1)."
Leaphart argued that Rule 404 "proscribes the introduction of
evidence of sexual preference merely to show that the defendant had
a particular character trait and that he acted in conformity with
that trait under these circumstances."  Thus, Leaphart contended
that the trial court erred in admitting this evidence.  On the
other hand, he concurred with affirmance of the verdict and
sentence, agreeing that this was not reversible error because of
the "overwhelming evidence of guilt."  In a brief rebuttal, Justice
Trieweiler expressed disagreement that in this case the disputed
evidence was character evidence subject to Rule 404.  A.S.L.

Missouri Appeals Court Rejects Challenge to Voir Dire Limitations
in Gay Murder Case

Affirming judgments of murder second degree and armed criminal
action, the Missouri Court of Appeals held that the trial judge did
not abuse its discretion in cutting off questioning about juror
attitudes towards homosexuality during voir dire in a case
involving the murder of a gay man by his ex-lover.  __State v.
Rulon__, 1996 WL 625159 (Mo.App., E.D., Oct. 29).  Gregory Rulon
and Kelly Lafferty were business partners and gay lovers.  They had
been living together since 1992.  Rulon claimed that beginning in
1993 Lafferty began to drink heavily and to physically abuse Rulon,
leading to the breakdown of their relationship during 1994.  On the
evening of Oct. 23, Lafferty was supposed to move out but a dispute
between the men erupted during which Rulon shot Lafferty several
times, killing him.  Rulon admitted the shooting, but claimed self
defense.  

During jury selection, Rulon's attorney sought to pose a variety of
questions to the venire relative to the gay issues in the case. 
The judge allowed questioning to remove jurors who indicated they
could not place the law of Missouri above their conception of God's
law concerning homosexuality, and also removed for cause jurors who
indicated they might be prejudiced against the defendant or the
prosecution because of the gay elements in the case, or who
indicated their belief that homosexuals are more likely to be
violent.  But the trial court cut off the questioning when Rulon's
attorney sought to ask the remaining potential jurors whether they
knew or associated with gay people.  

While acknowledging the U.S. Supreme Court precedent indicating the
right of criminal defendants to ascertain potential prejudice by
jurors during voir dire in __Ham v. South Carolina__, 409 U.S. 524
(1973), the court, in an opinion by Judge Smith, concluded that the
right had not been compromised in this case: "If we assume that the
__Ham__ requirements apply to prejudice against homosexuals, there
is nothing indicating that issue was inextricably bound up with the
conduct of the trial.  There was no contention that defendant was
being framed or prosecuted because he was homosexual.  There was no
contention that either his actions or that of the victim were
grounded in homosexuality or occurred because either was
homosexual.  The evidence was that defendant killed Lafferty and
the issue was whether that killing was done in self-defense.  The
issue before the jury was one which is commonly found in murder
cases and has no underlying racial, ethnic, or sexual preference
base.  The venire panel was examined at some length on whether
defendant's sexual preference would affect the ability of the
venire persons to properly weigh the evidence and render a verdict. 
Those who indicated it would were excused for cause.  The court was
quite generous in excusing for cause any venireperson that
indicated an inability to be fair because of defendant's sexual
preference.  The inquiries made to the venire panel were far more
extensive than the questions sought to be asked in Ham.  We find no
error or abuse of discretion in the court's handling of voir dire." 
A.S.L.

N.Y.C. Judge Upholds Anti-Smut Zoning Law 

N.Y. Supreme Court Justice Marylin Diamond rejected a
constitutional challenge to a New York City zoning ordinance
intended sharply to reduce the permissible locations for sex-
related businesses within the city.  Diamond's Oct. 23 ruling,
immediately stayed by Appellate Division Justice Betty Weinberg
Ellerin pending an appeal on the merits, rejected the argument by
owners of the businesses that the city had failed adequately to
document adverse effects attributable to sex-related businesses,
and had failed to provide adequate locations for the sex-related
businesses to relocate and continue to serve their customers. 
__Stringfellow's of New York, LTD. v. City of New York__, NYLJ,
Oct. 25, p. 26, col. 2 (Sup.Ct., N.Y. Co.).

The main line of attack on the "adverse effects" issue was that the
City was relying on studies performed elsewhere, rather than having
undertaken an effort to produce empirical data on effects in New
York.  Reviewing caselaw, Diamond found that New York and federal
courts have allowed municipalities to rely on a handful of
empirical studies and to draw inferences from them in establishing
adverse effects in other locations.  (New York law is relevant here
because the N.Y. Court of Appeals has adopted broader protection
for sex-related businesses under the state constitution than the
U.S. Supreme Court has afforded under the federal constitution.) 
Diamond relied heavily on a New York Court of Appeals decision
upholding zoning against sex-related businesses in Islip, a town on
Long Island.  __Town of Islip v. Caviglia__, 73 N.Y.2d 544 (1989). 


Diamond also rejected the argument that the City was attempting to
restrict sex-related businesses to zones of inadequate size and
placement.  She emphasized that sex-related businesses could still
operate not far from the Times Square district, and in various
other places around Manhattan accessible to public transportation. 
She noted that none of the plaintiff business-owners have made any
attempt to find new locations in the appropriately zoned areas for
their businesses, and also asserted that existing federal and state
precedents did not require the City to ensure that specific sites
are available for such businesses.

Concluding, Justice Diamond asserted: "New York's long history and
tradition of fostering freedom of expression and tolerating ideas
that some may find offensive is in no danger from the Amended
Zoning Resolution for the City has silenced no message.  Those
seeking to patronize adult establishments will be able to continue
to beat a path to their doors.  While x-rated businesses may no
longer be located on every street corner and may no longer dominate
the Times Square area, as long as the current demand for them
exists their numbers will certainly not lessen." Diamond concluded
that "minimal inconvenience" to porn consumers did not render the
Resolution unconstitutional, and granted the City's motion for
summary judgment.  Justice Ellerin's stay allows the plaintiff
businesses to continue in operation at their current location while
appeals are pending.  A.S.L.

Ohio Judge Refuses to Pander to Homophobia on Foster Placement

Stark County, Ohio, Family Court Judge Julie A. Edwards rejected an
attempt to remove two young brothers from a foster home on grounds
that the two women adults in the home may be lesbians, according to
a report in the __Akron Beacon Journal__ (Oct. 17).  The guardian
ad litem appointed for the children, Wayne Graham, had moved to
have them removed from the home "because the foster parents are two
women who could be homosexuals." Wrote Judge Edwards in rejecting
the motion: "Even if the women are lesbians and even using the most
negative scientific data presented, there is no indication that
these two boys placed temporarily in this foster home will become
homosexuals or are otherwise in imminent moral danger. . .  The
foster parents have provided a stability to these children that was
unknown to them in their own home" and that a court-appointed
psychologist opined that removal would be detrimental to the older
boy.  A.S.L.

A Problem With Hate-Crime Statutes

A recent acquittal of hate-crime charges by a District of Columbia
jury illustrates one problem with such statutes: jury confusion. 
According to the __Washington Blade__ (Oct. 18), a D.C. jury
acquitted Michael J. Monts of assault with a dangerous weapon in
connection with a bias-related crime, while convicting Monts of a
lesser charge of assault with a dangerous weapon.  Monts attacked
Loron Lavoie, a gay man who was sitting with his lover on a bench
in Dupont Circle.  Monts, a drifter who recently came to Washington
from Columbia, South Carolina, testified that he lived in Dupont
Circle with no fixed address and had a drug and alcohol problem. 
"Never before in my life had I seen such blatant homosexuality,"
testified Monts about the goings-on in Dupont Circle.  Monts
decided to stand on the edge of the fountain reciting biblical
passages condemning homosexuality.  Monts claimed that Lavoie
attacked him, while Lavoie claimed that Monts attacked him with a
5-foot-long stick, as well as spitting on him and breaking a bottle
and throwing it at him.  Eyewitnesses testified on both sides of
the case.  A juror told a reporter from the __Blade__ that most of
the jurors seemed confused over the technicalities of the hate-
crimes statute, and she was not sure why the jury voted against
convicting Monts of a hate crime.  A.S.L.

Domestic Partnership & Marriage Notes

Denver has joined the list of cities extending eligibility for
health insurance to same-sex domestic partners of city employees. 
The 11-1 city council vote and endorsement of Mayor Webb showed
overwhelming sentiment for the measure, but opponents were
threatening to file a court challenge to the city's authority to
adopt it.  

Among employers newly announcing domestic partnership benefit plans
in recent weeks were the University of Maine, General Motors
Canadian plants (via collective bargaining with the United Auto
Workers), and ITT Hartford (which will employment a variety of
"non-economic" benefits in 1997 and insurance benefits in 1998). 
There was also an Internet report that upcoming negotiations for a
new labor agreement governing flight attendants at U.S. Air may
result in adoption of domestic partnership benefits, which would
make U.S. Air the first major domestic carrier to adopt such a
plan.

Pennsylvania Governor Tom Ridge signed into law a measure banning
recognition of same-sex marriages, making that state the
seventeenth to pass such a law since the Hawaii Supreme Court's
1993 ruling in __Baehr v. Lewin__.

When Walt Disney Co. announced it would extend benefits eligibility
to same-sex partners of employees, the union representing its
employees, Service Trades Council Union, complained that this was
unfair to opposite-sex partners and filed a grievance.  Arbitrator
Donald Hayes has rejected the grievance, finding that the policy
did not violate a prohibition on marital status or sexual
orientation discrimination in the union's contract with Disney. 
Hayes evidently accepted Disney's argument that the contract
language was adopted in order to protect gay employees from
discrimination, and that gays and non-gays were not similarly
situated on this issue because non-gays can marry their opposite-
sex partners if they seek benefits eligibility for them.  __Orlando
Sentinel__, Oct. 25.

The San Francisco Board of Supervisors, making the first attempt at
the local level to stimulate private sector employers to extend
benefits eligibility to domestic partners, has approved by a vote
of 10-0 an ordinance prohibiting the city from dealing with
contractors that don't provide the same benefits to employees'
domestic partners as they do to employees' spouses.  A second
reading and approval by Mayor Willie Brown are prerequisites to
enactment.  __San Francisco Examiner__, Oct. 29.  

A legal challenge to the recently enacted domestic partnership
registry law in Albany, N.Y., failed because the plaintiff did not
allege facts necessary to show that he had standing to bring suit. 
__Albany Times Union__, Oct. 23.  James Brunner, an anti-gay
lawyer, represented himself pro se.  Brunner managed to omit
allegations that he was a resident or taxpayer of the city. 
Perhaps he should now be filing a malpractice complaint against
himself!  Since the registry opened for business on May 23, 38
couples have registered, of whom 31 were same-sex couples.

Is this a same-sex marriage?  The __Chicago Tribune__ reported
Sept. 30 that Lake County, Ohio, Probate Judge Fred V. Skok has
issued a marriage license to Paul Smith of Willoughby and Debi
Easterday of Medina.  Debi is a lesbian, and so, "s/he" says, is
Paul, although Paul hasn't had sex-reassignment surgery yet.
(Indeed, Judge Skok demanded a note from Paul's doctor confirming
that Paul still has male genitals; Paul is a cross-dresser and
presents as a woman, except at work).  Paul plans to have sex-
reassignment surgery after the wedding.  Their wedding was
scheduled for Oct. 12.  Will the federal government recognize it,
or does DOMA override the Ohio wedding license?  Only time will
tell.  Meanwhile, Paul has petitioned Judge Skok for a name change
to Denise.  A.S.L.

Mass. Appeals Court Affirms Sentences for Gay-Bashers, But Holds
District Court Lacks Jurisdiction of Civil Rights Charges

In a gay-bashing case, the Court of Appeals of Massachusetts
affirmed the conviction of two defendants on charges of assault and
battery, and assault and battery with a deadly weapon, but
dismissed for lack of jurisdiction a charge of violating the civil
rights of the two victims.  In __Commonwealth v. Zawatsky__, 1996
WL 560227 (Oct. 2), the court upheld sentences of two years on
Brian Zawatsky and one year on Timothy Donovan.

Defendants Zawatsky and Donovan were attending a New Year's Eve
party at a Bedford, Massachusetts, hotel.  A gay male couple,
Bernard Cassidy and Brian DeSanto, were guests at the same hotel
attending a friend's wedding.  At the reception, Cassidy and
DeSanto had an argument.  DeSanto then went back to their room
alone.  Cassidy returned to the room later and broke off their
relationship.  Weeping, Cassidy then headed for a friend's room
with DeSanto following and loudly pleading for Cassidy to return. 
DeSanto and Cassidy passed Zawatsky and Donovan and a few of their
friends in the hall.  Making a series of homophobic comments, the
Zawatsky-Donovan group followed the feuding lovers.  Zawatsky then
overtook Cassidy and grabbed him by the shoulder.  When DeSanto
tried to intervene, someone grabbed Cassidy from behind and
Zawatsky proceeded to punch Cassidy in the face.  Cassidy was then
pushed to the ground and kicked in the head, face, back, stomach,
buttocks while the crowd yelled "faggots."  Meanwhile, Donovan
grabbed DeSanto and punched him in the head.

The District Court has jurisdiction for all felonies with sentences
not exceeding five years.  Under Mass. G.L. c. 265, sec. 37, a
defendant violating another's civil rights could face up to a year
in jail.  However, with the infliction of bodily injury a defendant
can be imprisoned for up to ten years.  On appeal, the Commonwealth
argued that the defendants were not convicted under the bodily
injury component of the civil rights statute.  The Commonwealth
maintained that the prosecutor did not discuss bodily injury in his
summation and that the judge did not instruct the jury on the
bodily injury component of the civil rights violation counts. 
However, the Appeals Court found that the victim's injuries were
put into evidence and that Zawatsky was sentenced to two years for
the civil rights offenses, possible only under the bodily injury
component of G.L. c. 265, sec. 37.  For these reasons, the court
held that the lower court lacked jurisdiction and set aside the
defendants' convictions under the civil rights statute.

In upholding the assault and battery counts, the court affirmed
that defendant Zawatsky's shoes were considered a dangerous weapon,
that Donovan's participation constituted a joint venture, and that
there existed no grounds for Donovan to sever.  In addition, the
court upheld an assessment of $1,300 against Donovan designated for
the Victim and Witness Assistance Fund. C.W.

Minnesota Federal Court Rules on Torts Claims of Employees
Investigated for Anti-Gay Bias By Employer

In a rather peculiar case, District Judge Davis (D.Minn.) disposed
of summary judgment motions in __Cavanaugh v. Burlington Northern
Railroad Co.__, 1996 WL 556593 (Sept. 30), in which a group of
employees asserted torts claims against the employer arising from
an investigation of allegations that the plaintiffs had harassed a
lesbian co-worker.  Debbie Glick complained to management that she
was being targeted for harassment by other employees because she is
a lesbian.  Management took the complaint seriously and launched an
extensive investigation that included wiretapping, interviews of
employees, and some rather heavy-handed interrogations.  Ultimately
it emerged that Glick had perpetrated a hoax, including forging
harassing notes to herself, and she was referred for counseling and
psychological treatment, although not discharged.  But the
employees who were investigated sued the employer for defamation,
false imprisonment, and intentional and negligent infliction of
emotional distress.  Judge Davis disposed of some of the claims
based on employer privilege and lack of the outrageousness
sufficient to state a common law claim for intentional infliction
of emotional distress, but set some of the claims for trial due to
disputed factual issues.  A.S.L.

Maryland Trial Court Approves Second-Parent Adoptions

The Maryland Circuit Court in Baltimore has approved adoptions of
each other's children by members of a lesbian couple.  __In re
Petition of D.L.G. and M.A.H.__, 22 Fam. L. Rep. (BNA) 1488 (June
27, 1996).  According to a summary in BNA's Family Law Reporter of
Sept. 3, each of the women had adopted a daughter during the course
of the women's 15-year relationship.  The court noted that Maryland
courts had allowed an unmarried heterosexual couple to adopt the
woman's child, and that sexual orientation should make no
difference in applying that precedent to an unmarried lesbian
couple.  The court also noted the stepparent provision under
Maryland law allowing a stepparent to adopt a child without cutting
off the parental rights of the birth parent.  A.S.L.

Connecticut Court Allows Suit on Sexual Orientation Discrimination
Claim

George Rood is a former food service worker at a prison operated by
the Connecticut Department of Corrections.  Rood sued his former
employer, Canteen Corp., alleging that his employment was
terminated because of his dealings with a former prisoner, Hector
Vasquez.  Specifically, Rood alleges that he hired Vasquez to paint
his house.  Because Vasquez had no means of transportation, Vasquez
spent the night at Rood's house.  Rood alleges that Vasquez's
parole officer had no objection to the arrangement.  Rood was
subsequently suspended and eventually terminated from his job with
Canteen Corp.  Rood alleges that he was informed by Canteen that
his termination was due to his "relationship" with Vasquez.   

Rood sued Canteen, and on May 16, 1996, filed his second amended
complaint.  In count one, Rood sought damages, including lost wages
and benefits, incidental and consequential damages, and damages for
emotional distress.  In count ten, Rood alleges that Canteen is
liable for negligently investigating the accusations made against
him.  Canteen moved to strike counts one and ten of the second
amended complaint.  Canteen moved to strike count one of the
complaint alleging that Rood had an adequate remedy provided to him
by the Commission on Human Rights and Opportunities (CHRO) based on
Connecticut's statutes protecting employees from discrimination
based on their sexual orientation.  Rood had attempted to seek
redress through the CHRO but his petition was dismissed.  

The court found that Rood had exhausted all of his administrative
remedies and could maintain an action against Canteen in Superior
Court for wrongful discharge based on sexual orientation
discrimination.  __Rood v. Canteen Corp.__, 1996 WL 548174 (Conn.
Super. Sept. 19).  On count ten, the court found that in
Connecticut an at will employee cannot normally maintain an action
resulting from an employer's negligent investigation.  However,
Rood had alleged that there was an employee handbook at Canteen
which outlined certain procedures that must be followed prior to
terminating an at will employee. This handbook created a
contractual relationship between Canteen and Rood that required
Canteen to investigate and show cause for Rood's termination. The
Court concluded that this was an issue to be presented to the trier
of fact.  T.V.L.

4th Circuit Says First Amendment Protects Drama Teacher's Choice of
Play

A high school drama teacher who was transferred to a middle school
position that she didn't want after a dispute with her principal
about a play she had selected, produced and directed is protected
by the 1st Amendment, ruled a divided panel of the U.S. Court of
Appeals for the 4th Circuit on Oct. 31 in __Boring v. Buncombe
County Board of Education__, 1996 WL 628268.  Margaret Boring, a
nationally recognized high school drama teacher whose productions
had won many awards and resulted in her students receiving many
college scholarships, had selected a play called "Independence"
which looked at a "dysfunctional family" that included a single
mother and three daughters: one a lesbian, and one pregnant with an
illegitimate child.  Although there was initially no controversy
about the play and the students' success in taking it to a state
drama competition, ultimately one parent did complain to the
principal when scenes were performed in a drama class and the
principal ultimately censored the play before the students
performed in the state finals, where they came in second. 
Subsequently, despite her high evaluations, Boring was transferred
against her will to a middle school position teaching an
introductory drama class and filed suit.  The district court
dismissed her suit, ruling that the selection and production of a
play did not constitute expressive conduct protected by the 1st
Amendment, a proposition from which two of the appeals judges
dissented, ordering a trial on her claim.  A.S.L.

Law & Society Notes

The November elections will feature at least 63 openly lesbian or
gay candidates, according to an Oct. 25 report by Peter Freiberg in
the __Washington Blade__.  Freiberg counts among openly lesbian or
gay incumbents seeking re-election 2 members of Congress, a
candidate for statewide office in Vermont, 15 state legislators, 3
candidates for local office, one judge and one school board member. 
Openly lesbian or gay challengers include 3 candidates for
Congress, 13 candidates for state legislatures, 13 candidates for
local offices, six judicial candidates, and five school board
candidates.  Among the judicial candidates are a lesbian and a gay
man who are running against each other for a seat on the San
Francisco Municipal Court: Matthew Rothschild and Kay Tsenin. 
(Another openly gay lawyer, Ron Albers, ran in the primary election
for this seat.)  According to an Oct. 31 article in the __San
Francisco Examiner__, this has been "one of those quiet but nasty
campaigns" in which the community is sharply split.  Rothschild has
the heavier political endorsements but was rated not qualified by
the San Francisco Bar Association; Tsenin was rated qualified and
is more the "outsider" in the race.

The Oregon Bureau of Labor and Industry announced Oct. 9 that it
would accept discrimination complaints filed by transsexual
persons, making Oregon one of only a handful of states that accepts
such complaints.  The Bureau changed its existing policy in
response to a legal argument presented by attorney JoAnna McNamara
as to why such discrimination should be covered under the state's
ban on disability discrimination.  The result of this change was
that the agency would accept a charge by transsexual Margaret
Deirdre O'Hartigan that her employer violated her rights by
refusing to pay for her sex-reassignment operation.  O'Hartigan has
also successfully lobbied the Metropolitan Human Rights Commission
to recommend that transsexuals be covered by the Portland human
rights law.

Another sexual minority heard from: Intersexuals (persons born with
anatomical features of both sexes) demonstrated at a meeting of the
American Academy of Pediatricians to protest the Academy's
continued support for Intersexed Genital Mutilation, the
intersexuals' term for surgical procedures undertaken during early
infancy to conform the intersexual infant to anatomical
"correctness" for one gender.  The demonstrators carried banners
with slogans such as "Hermaphrodites With Attitude!" and "Keep Your
Scalpels OFF Intersexed Bodies!"  The pediatricians claim that such
surgery is necessary to protect the infants from severe emotional
disturbance and difficulty in adjustment.

A trial is scheduled for Nov. 18 on sexual harassment charges
brought by Jamie Nabozny against school officials of Ashland,
Wisconsin.  Nabozny won a ruling from the 7th Circuit Court of
Appeals in July that his allegations that school officials failed
to apply their sexual harassment policy to his situation on the
same basis that they would if male students were harassing female
students or if sexual orientation were not an issue stated a valid
cause of action under the Equal Protection Clause of the 14th
Amendment.  __Nabozny v. Podlesny__, 92 F.2d 446 (July 31). 
According to a Sept. 29 report in the __Wisconsin State Journal__,
school district officials are taking the position that Nabozny's
account of events is inaccurate and that they were unaware he was
gay and would not have refused to help him on that basis.  Nabozny
is represented by Lambda Legal Defense & Education Fund.  

The U.S. Supreme Court refused to review __Rees v. State of
Texas__, 909 S.W.2d 264 (Tex.App. 1995), cert. den'd, No. 96-37, 65
USLW 3235 (Oct. 7), in which a Texas appeals court rejected the
appeal of defendants convicted of obscenity for showing an explicit
safe-sex video on a cable television program.

The Colorado Supreme Court has granted a writ of certiorari in
__Borquez v. Ozer__, 923 P.2d 166 (Colo.App. 1995) (writ granted
Sept. 16, 1996), in which the state's court of appeals held that a
law prohibiting the discharge of employees for engaging in lawful
off-duty conduct extended to protect a gay employee who sought time
off to care for his AIDS-stricken domestic partner.  If this ruling
is upheld on appeal, Colorado will become the second state to have
obtained some de facto protection for gay employees.  (The first
was California, where judicial interpretations of the State Labor
Code provisions on the political rights of employees created a
quasi-gay rights law which was subsequently codified.)

New York Governor George Pataki has established a commission to
study domestic violence and make proposals for improving the system
of dealing with intrafamilial violence.  A legislative proposal to
establish such a commission had stalled when Republicans insisted
that the bill define "family" to be limited to traditional, marital
families.  Democrats in the legislature insisted that domestic
violence was also a problem for non-marital (including lesbian and
gay) families.  Pataki's order does not define family, giving the
commission latitude to look at all aspects of domestic violence
without regard to marital status.  __N.Y.L.J.__, Oct. 2. 

The Florida Department of Children & Families canceled an already-
approved adoption of a child by Kenneth Suber, who had an excellent
record over five years as a foster parent for more than twenty
troubled children, when the Department discovered that Suber is
gay.  Florida is one of only two states that outlaw adoptions of
children by homosexuals by statute.  Various litigation attempts to
have the statute invalidated have not yet succeeded.  Suber
indicated he might file suit in his own case.  __Sun Sentinel__,
Oct. 30.

The international media noted the death Oct. 23 of Dr. Kurt Freund,
a distinguished psychiatrist born in Czechoslovakia in 1914, whose
research on homosexuality led to the repeal of sodomy laws in his
country.  Freund was described in obituaries as "among the first
experts to conclude that attempts to alter sexual orientation by
means of behavior therapy or psychotherapy were futile."  Freund
fled Czechoslovakia after the Russian invasion in 1968 that put
down a liberalization movement, and settled in Toronto.  A.S.L.

International Notes

The European Parliament adopted a resolution Sept. 15 calling on
member nations in the European Union to end discrimination and/or
inequality concerning homosexuals, including differences in age of
consent, workplace discrimination, and all distinctions in penal,
civil, contractual, social and economic law, according to a report
by the International Lesbian and Gay Association transmitted via
Internet.

The New South Wales, Australia, government is debating a same-sex
marriage bill that may come up for a vote next year.  According to
Australian newspaper reports quoted in the __Washington Blade__,
members of the province's gay lobbying group are convinced they
have the votes to pass it.

Canada's Supreme Court agreed to hear an appeal by Delwin Vriend
from a decision by the Alberta Court of Appeals that the nation's
Charter of Rights does not require Alberta to extend its human
rights law to protect gays from workplace discrimination.  Vriend
was fired in 1991 as a laboratory coordinator at The King's
University College in Edmonton.  A trial court agreed with Vriend's
argument that the charter requires judicial amendment of the
province's human rights code, but was reversed on appeal in
February 1996.  The Supreme Court will most likely hear the case in
the fall of 1997.  __Washington Blade__, Oct. 18.

The Ontario, Canada, Human Rights Commission recently ruled that
the province must interpret its Municipal Acts to treat same-sex
couples the same as spouses for municipal employee benefits
purposes.  The ruling by Commission adjudicator Susan Tacon, if
upheld on appeal, would mean that all municipal employers across
the province would have to fall in line with the procedures
currently used by Ontario, Toronto, Ottawa, and Waterloo municipal
governments, as well as Toronto Hydro, of treating same-sex
partners the same as spouses under pension benefit laws and laws
concern children of municipal employees (such as extended health
and dental care benefits).  __Buffalo News__, Oct. 6.  

Reuters reported that a lesbian policewoman in Sweden has been
allowed to take paternity leave by the nation's social insurance
office.  The woman's partner gave birth to a daughter conceived
through donor insemination, but the woman's initial attempts to
take paternity leave were rebuffed.  Ultimately, the insurance
office declared that both women have "the same rights as in a
conventional marriage." __Sun Sentinel__, Oct. 23.  A.S.L.

Professional Notes

The American Bar Association House of Delegates approved the
following resolution during its meeting in August:  "RESOLVED, That
the American Bar Association urges state, territorial and local bar
associations to study bias in their community against gays and
lesbians within the legal profession and the justice system and
make appropriate recommendations to eliminate such bias." The
resolution was proposed by the King County (Seattle, Washington)
Bar Association, the Bar Association of San Francisco, and the Los
Angeles County Bar Association.  Each of those associations has
received and approved reports from special committees they
established to study the situation of lesbians and gay men in the
legal profession in recent years.  

The American Civil Liberties Union's Lesbian & Gay Rights &
HIV/AIDS Projects have announced that Michael P. Adams has been
appointed staff attorney in the Projects' New York Office.  Adams,
a 1990 graduate of Stanford Law School, is an associate at Steel,
Clarence & Buckley in San Francisco and has been teaching a course
on sexual orientation and the law at Boalt Hall School of Law,
University of California at Berkeley.  He is a member of the San
Francisco Mayor's Task Force on Sexual Harassment and is a past
director of Bay Area Lawyers for Individual Freedom. * * *  The
ACLU Projects have also announced another staff attorney opening in
the New York office, for which applications will be taken at least
through Dec. 1 and thereafter until the position is filled.  The
position involves litigation, litigation back-up and policy work on
lesbian/gay and HIV-related issues, working both directly on cases
and in collaboration with ACLU local affiliates and cooperating
attorneys.  The position also requires public speaking and dealing
with media, some fundraising activity, and some travel. 
Familiarity with these legal issues and some litigation experience
is desirable.  Applications, resumes and writing samples should be
sent to: Matt Coles, Director, ACLU Lesbian/Gay Rights, AIDS/HIV
Projects, 132 West 43rd Street, New York, NY 10036.  

The Association of American Law Schools has announced that David L.
Chambers, an openly-gay professor at the University of Michigan
School of Law, has been nominated for a 3-year term on the
Association's Executive Committee.  Such elections are normally
uncontested.  Prof. Chambers will be the first openly-gay person to
serve in that position.  The Executive Committee is a policy-making
body for the Association, issuing regulations, participating in
accreditation review, and setting the agenda for the Association.

When is a vote final?  In NYC, it can take some time, as LeGaL
President Paul Feinman learned recently.  Feinman appeared to win
the Democratic primary election for nomination as a civil court
judge by a few hundred votes.  His opponent, Liz Shollenberger,
filed a challenge to the outcome.  A recount by the Board of
Elections showed Feinman the winner by a narrower margin. 
Shollenberger filed a court action seeking to invalidate the
election.  A referee appointed by the court examined every
challenged ballot and confirmed Feinman the winner by 24 votes. 
Just two weeks before the general election, N.Y. Supreme Court
Justice Beatrice Shainswit dismissed Shollenberger's suit,
confirming the referee's decision in one of the most closely
contested primary victories ever upheld by a judge, according to
the November newsletter of Gay & Lesbian Independent Democrats.  

For __Law Notes__ readers to bear in mind: The Lesbian and Gay Law
Association of Greater New York, which publishes this newsletter,
administers a legal referral service for those looking for an
attorney in the New York City metropolitan area.  Each year the
service hears from hundreds of callers, each of whom receives the
name of one or more attorneys taking such cases.  Anyone seeking a
referral or information about the service should call 212-459-4873. 
A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 

Supreme Court to Review Physician-Assisted Suicide Cases Brought by
PWAs and Their Doctors

In a special pre-term action intended to give the parties time to
file briefs in advance of an early January argument date, the
Supreme Court announced Oct. 1 that it had granted certiorari in
cases from the 2nd and 9th Circuits that had struck down on 14th
Amendment grounds state laws penalizing physicians who assist their
terminally ill patients in committing suicide.  __Compassion in
Dying v. Washington__, 79 F.3d 790 (9th Cir. Mar. 6, 1996); __Quill
v. Vacco__, 80 F.3d 716 (2nd Cir. Apr. 2, 1996).  

In the 9th Circuit case, an en banc panel of the court of appeals
reversed a three-judge panel and found that there was a strong
enough liberty interest in the 14th Amendment's Due Process Clause
to overcome the interests articulated by the state in preventing
terminally ill people from committing suicide with the assistance
of licensed physicians.  By contrast, a 2nd Circuit three-judge
panel found no liberty interest at stake, but determined that
inasmuch as the Supreme Court had previously recognized the right
of patients to refuse treatment (including life-sustaining
treatment such as forced feeding or artificial assistance in
breathing), it would violate the Equal Protection Clause of the
14th Amendment to deny terminally ill patients the right to
accelerate their death with the assistance of their doctors.  The
2nd Circuit panel was very split over its rationale, however,
generating three opinions, including one by Judge Calabresi that
appeared premised on the argument in his noted book, __A Common Law
for the Age of Statutes__, suggesting that courts should invalidate
old statutes to prompt legislatures to reconsider the policy
concerns behind the statutes in light of changed social
circumstances.  

In both cases, persons with AIDS were among the group of plaintiffs
challenging the law.  By granting certiorari in both cases, the
Court assures that both 14th Amendment theories can be considered
simultaneously.  A.S.L.

Federal Circuits Rule on Claims by HIV+ Inmates

The 9th Circuit affirmed a decision by U.S. District Judge Saundra
B. Armstrong refusing to grant a downward departure from federal
sentencing guidelines for an HIV+ man convicted of mail fraud. 
__U.S. v. Borkowski__, 1996 WL 534043 (Sept. 19) (not officially
published).  Borkowski argued that he had symptomatic HIV-
infection, and that experimental medications that might help his
condition were unavailable in federal prisons, thus justifying a
reduction in sentence time.  Rejecting Borkowski's argument in a
per curiam opinion, the panel stated: "No evidence was presented
that Borkowski's condition was especially debilitating, or that he
was bedridden, nor was any evidence submitted on his life
expectancy.  The evidence that the Bureau of Prisons would not
provide any treatment for Borkowski's condition was unpersuasive."
The court also characterized as "sparse" any evidence on
Borkowski's contention that the Bureau of Prisons could not make
appropriate treatment available for him, and concluded that no
abuse of discretion occurred in Armstrong's decision.  

The 8th Circuit affirmed a decision by U.S District Judge Scott O.
Wright rejecting 8th Amendment and Equal Protection claims brought
by Jeffrey Tokar, an HIV+ inmate in the Missouri prison system. 
__Tokar v. Armontrout__, 1996 WL 570961 (Oct. 8).  Tokar's claims
of inadequate prison conditions in light of his HIV-status were
rejected by the court, which noted that Tokar hadn't even begun to
meet his burden of specifying conditions meeting the test
articulated by the Supreme Court for such claims by prisoners. 
Tokar also alleged that by placing him in a segregated unit for
HIV+ prisoners, the prison violated his right to privacy and Equal
Protection, since assignment to such a unit inevitably revealed his
HIV+ status to prison employees and other prisoners.  The court
rejected this argument as well, noting that the prison officials
would have qualified immunity on this point since such a right as
described by Tokar was not well-established in constitutional
precedents.  The court also noted that other circuits had rejected
claims of privacy in a prisoner's HIV-status in __Anderson v.
Romero__, 72 F.3d 518 (7th Cir. 1995), and __Harris v. Thigpen__,
941 F.2d 1495 (11th Cir. 1991).  A.S.L.

N.Y. High Court Holds Private Professional Office May Not
Discriminate Against People With HIV/AIDS

A sharply divided New York Court of Appeals rejected lower court
rulings in two consolidated cases involving HIV-related
discrimination, and held that a "private" dental office (and by
implication all such professional service offices) is subject to
the N.Y. Human Rights Law's prohibition on discrimination by places
of public accommodation.  __Cahill v. Rosa__, 1996 WL 625559 (Oct.
15).  

In one case, the complainant had gone to the dentist's office
without an appointment, seeking treatment for a cracked tooth.  The
dentist's assistance said that the dentist would see him.  Then he
told the assistant that he had recently been exposed to HIV and was
awaiting a test result.  The assistant then told him that the
dentist would not see him unless he got a negative test result. 
The other case involved a continuing patient of a dentist who
claimed that she was denied further treatment after the dentist
learned she was HIV+.  In both cases, the State Division of Human
Rights found that it had jurisdiction and awarded damages to the
complainants.  In both cases, the Appellate Division reversed,
holding that a "private" dental office is not a "place of public
accommodation" under the statute.

Writing for the court, Judge Richard Simons rejected the argument
that because the statute included an illustrative list of places of
public accommodation that did not include private practitioners'
offices, they were not covered.  He noted that the legislature had
frequently amended the statute to broaden its scope, and that there
is a provision mandating liberal construction to effectuate the
statutory purpose.  The statute describes places of public
accommodations generally as "establishments dealing with goods and
services of any kind."  "Dentists' offices come within this
definition of places of public accommodation because they provide
services to the public," wrote Simons.  "Though they may be
conducted on private premises and by appointment, such places are
generally open to all comers.  Patients may be drawn tot he office
by an advertisement or telephone book listing, upon referral by
other health care providers, or, as in the case of Dr. Cahill's
patient, by a sign displayed on the premises.  Indeed, in the
Cahill case, the complainant walked into the office as a new
patient without an appointment and originally was accepted for
treatment."  Simons asserted that the "hallmark of a `private'
place . . . is its selectivity or exclusivity, and persons seeking
the benefit of the exemption [for `distinctly private' places] have
the burden of establishing that their place of accommodation is
`distinctly' private."  Simons found that neither of the respondent
dentists had met this burden.

Moving to broader considerations of policy, Simons noted that
adopting the narrower construction would appear to go against the
remedial purpose of the statute and produce unacceptable results. 
"Finding a categorical exemption in this context would signify that
the Legislature intended that persons with disabilities should be
free from discrimination such places as ice cream parlors and
skating rinks, but that dental and medical providers could lawfully
deny health care to them solely on the basis of their disability,
a result wholly inconsistent with the purposes of the Human Rights
Law. . .  [I]t is inconceivable that a dentist would challenge the
application of the statute if a patient complained that she was
denied dental treatment because she was a woman, a member of a
distinct racial group, or had been disabled by the amputation of an
extremity.  Though we recognize that potentially contagious
bloodborne conditions may raise specific concerns among the health
care community, the statute does not discriminate between types of
disabilities -- the very essence of the Human Rights Law is that
persons within the reach of the statute may not pick and choose
those against whom they discriminate."  

Simons also noted that public health officials and the American
Dental Association and American Medical Association had all taken
the position that it was inappropriate for health care workers to
refuse to treat people with HIV, and had established guidelines and
procedures for preventing HIV transmission while rendering
treatment.  "In sum, the health care professions are generally in
accord with the Human Rights Law with respect to the issue of
treatment of HIV positive patients -- such persons may not be
denied treatment solely because they have that disability." Simons
added that a provider could refuse to provide services for "any
legitimate, non-discriminatory reason, subject only to the
condition that if such reasons are suspect they may be tested under
the usual rules."

The decision drew an emphatic dissenting opinion from Judge Howard
Levine for himself and two others.  Levine objected that this broad
reading of the definition of "public accommodation" "empties the
phrase of any substantive content and will result in an explosive
increase in the jurisdiction of the State Division of Human
Rights."  Reviewing the early legislative history of the statute,
Levine found no support for the contention that the legislature
intended its reach to be so broad.  In a footnote, he commented:
"At the least, the Majority's holding clearly would make all of the
practitioners of all of the professions places of public
accommodation.  These would include some 570,000 professionals
licensed by the State Education Department. . ., plus some 164,000
attorneys registered to practice in the state."  This last comment
is rather odd, inasmuch as the state's courts amended the Code of
Professional Responsibility relatively recently to forbid lawyers
to discriminate in their practices on any of the grounds forbidden
by the Human Rights Law, and stated that the disciplinary
committees should give precedence to duly constituted human rights
agencies in making initial determinations of violations of this
requirement of the Code, which would imply that when they amended
the Code, the courts assumed that the human rights agencies already
had jurisdiction over law offices as places of public
accommodation!

The Division of Human Rights was represented in the consolidated
cases by Michael K. Swirsky, a staff attorney.  The press reported
that Governor George Pataki announced his agreement with the
court's decision, which should forestall any effort at legislative
overruling.  A.S.L.

Illinois Supreme Court Upholds Discrimination Ruling Against
Nursing Home

In an important ruling of first impression under the Illinois Human
Rights Act, the Illinois Supreme Court ruled Oct. 18 in __Raintree
Health Care Center v. Illinois Human Rights Commission__, 1996 WL
599271, that a nursing home violated the law by constructively
discharging a cook who was HIV+.  In so ruling, the court rejected
the nursing home's contention that it was trying in good faith to
comply with regulations governing the employment by nursing homes
of persons with "infectious or contagious" conditions.

Raintree hired James Davis as a kitchen helper in March 1987 and
promoted him to cook.  He was discharged for fighting on the job in
June 1987, but rehired in November of that year, and both parties
stipulated that his job performance was acceptable after his
rehiring.  Davis prepared the evening meal, placed food on trays,
and cleaned and straightened kitchen and storeroom areas.  He was
required to wear gloves while working and had no direct contact
with the residents of the nursing home.  Davis learned from his
doctor that he had tested HIV+ in January 1988, and promptly told
his supervisor, who relayed the information to Raintree's
administrator.  The administrator, Burton Behr, told Davis that
Behr would have to check state regulations to determine whether he
could employ an HIV+ person as a cook.  

Finding no answer in the text of State or local regulations, Behr
made telephone calls to the Evanston board of health, the Illinois
Public Health Department, and the Illinois Council on Long Term
Care, but could not obtain any definitive advice or ruling, apart
from statements by some officials that Behr should comply with the
re, finding that it is "a determinable physical characteristic
resulting from a disease which has been held to be a qualifying
condition under civil rights laws," and that the real issue in the
case was "whether Davis's handicap was unrelated to his ability to
perform his job duties, rendering his termination lawful."  As to
this, the law requires an individualized determination with respect
to each employee.  In this case, Raintree effectively terminated
Davis without making such a determination.  "Thous or contagious
conditions by using a list of such conditions, upon which HIV
infection does not appear, and the court concluded that it could
not legislate by adding HIV to the list.  (Some judges had trouble
with this part of the ruling, preferring to rest their conclusion
on the doctor's note rather than the omission of HIV from the
statutory list.)  AIDS is listed among the diseases on the list,
but Harrison observed that when discharge Davis did not have AIDS,
and rejected Raintree's attempt s."

Finally, Harrison rejected Raintree's objection to the attorney fee
award by the Commission.  A.S.L.

2nd Circuit Rebuffs AIDS-Discrimination Charge Against NYS AIDS
Institute

On Oct. 3, the U.S. Court of Appeals for the 2nd Circuit held in
an HIV counselor at the AIDS
Institute of the NYS Dep't of Health.  He tested positive for HIV
in June 1991 but did not inform his superiors.  In May 1992, Reese
requested permission from the AIDS Institute to supplement his
income by working in an HIVated against because of HIV status in violation of the
ADA.  The EEOC informed Reese that it had no jurisdiction to
investigate since the date of the alleged violation preceded the
effective date of the ADA, July 26, 1992.  In May 1994, Reese filed
a complaint in district court.

In granting summary judgment, the district court found that the
"final and effective" date of Reese's discharge was June 25, 1996. 
However, on appeal the 2nd Circuit did not address whether the
alleged violation preceded the effective date of the ADA.  Instead,
the court asserted that Reese's outside employment was a legitimate
reason for the AIDS institute to terminate him and that Reese
failed to provide evidence that he was fired because of his HIV+
status.  Therefore, Reese failed to establish a prima facie case of
discrimination under the ADA. C.W.

Michigan Federal Court Rules Against Grocery on AIDS Discrimination
Claim by Produce Clerk

District Judge Enslen ruled in __EEOC v. Prevo's Family Market,
Inc.ry 1993, Sharp notified his supervisor that he was
HIV+, and was promptly transferred to the receiving department,
where he would not handle food or have public contact.  When Sharp
complained about the assignment, he was placed on involuntary leave
with pay and the employer requested that he submit to a full
medical exam by a doctor designated by the employer.  Sharp refused
to comply with this request and filed a complaint with the EEOC. 
The employer then offered him a job as a data analyst; whenk of spreading disease to co-workers is extremely small and
that the risk of spreading disease to customers is negligible.  In
light of such low risks, the doctors have recommended that the
risks could be minimized by Sharp following the same hygiene
procedures he has become accustomed to following and by wearing
steel protective gloves and using exclusively his own set of
knives. These type of precautions not only make a great amount of
sense, but are examples of reasonable accommodations required by
the A.D.A. __See__ 42 U.S.C. sec. 12111(8).  Further, this case is
distinguishable from __Leckelt [v. Board of Commissioners, 909 F.2d
820 (5th Cir. 1990)] in that the A.D.A., unlike the Rehabilitation
Act, expressly includes a prohibition against making unnecessary
medical inquiries.  Therefore, in light of the fact that the
inquiries into Sharp's health were not strictly necessary, the
Court determines as a matter of law that taking negative action
(suspension and discharge) due to his failure tly prejudicial and not relevant to the damages
issues remaining in the case.  In light of the significance of
Enslen's ruling on the medical examination question, it is
unfortunate that this opinion is not officially published.  A.S.L.

Maryland Appeals Court Finds No Duty to Notify Patient's Extended
Family of HIV-Status of Patient

In a case of first impression in Maryland, the Court of Special
Appeals found that a health care provider does not have a duty to
inform a patient's extended family of his or her HIV/AIDS status. 
__Lemon v. Stewart__, 1996 WL 544934 (Md.App., Sept. 26, 1996).  

In July of 1991, Mr. Lemon was admitted to Liberty Medical Center, 
complaining of slurred speech, expressive aphasia, and right-sided 
weakness.  He had a history of intravenous drug use.  Mr. Lemon  
entered the care of Dr. Stewart, and various neurological tests
were completed.  Tests showed that Mr. Lemon's body was developing 
antibodies to the HIV organism, but Mr. Lemon was never told
anything about his HIV status.  Upon discharge, Mr. Lemon returned
to the home of his sister-appellant, and for the next nine months
she and thirteen other appellants provided extensive daily care to
Mr. Lemon. Their contact with him was in assisting him with bathing
and shaving, as well as cleaning his bed and clothes and carrying
him around the house.  Through changing his diaper and caring for
his bed sores, several of the appellants came into contact with his
urine, feces, blood, and other bodily secretions.  None of the
appellants were Mr. Lemon's sexual partner, none shared needles
with him, and there is no evidence to suggest that Mr. Lemon's
blood contaminated any of the blood of the appellants.

In 1992 Mr. Lemon was informed that he had tested positive for HIV.
All of the appellants were tested with negative results.  The  
appellants contend that they live in daily fear that they have 
contracted HIV from Mr. Lemon, and had the defendants informed Mr.
Lemon, health authorities, or the appellants in July of 1991 that
Mr. Lemon was positive, the appellants would have taken appropriate 
measures to protect themselves.  The appellants contend that the 
defendants were negligent in not disclosing Mr. Lemon's HIV status,
and that the defendants had a statutory duty not to expose them 
carelessly to infected persons.

The court first considered the duty of the defendants to notify
each other.  It found that there was clear evidence that the
Maryland Medical Center had reported the results of the tests in
July of 1991 to the Liberty Medical Center, and that MML had no
separate duty to report the results directly to Dr. Stewart.

In regard to the duty to inform the appellants, the court found 
that the common law duty of care flowed to the patient, not to
third parties.  Other states had found that there may sometimes be
a duty to report a disease to parties other than the patient.  Such
situations usually involve a communicable disease that was actually
transmitted to a plaintiff or could be easily transmitted through
casual contact.  

None of the cases cited for the proposition of the duty to inform
third parties involved HIV or AIDS.  The court then considered the 
fragility of the HIV virus, and the limited circumstances in which
it could be transmitted.  The court found that none of the
appellants were in a position in which they could transmit HIV from
Mr. Lemon, and even those who were in contact with blood from his
sores had not provided evidence showing it reasonable that Mr.
Lemon's blood commingled with theirs.

The court went on to state that "to recognize a common law duty on
the part of health care providers to inform persons such as
appellants would not only be thoroughly impractical but would  
constitute a wholly unwarranted invasion of the patient's privacy." 
Further, even without the issue of consent, the health care
provider would have no way of knowing whom to notify. Here there
were fourteen appellants, none being a spouse, other sexual
partner, or needle-sharer.  Finally, the privacy rights of the
patient would outweigh the right of third parties to be informed.

The court did find that the laboratory had a duty to notify Mr.
Lemon of his HIV status, but that the appellants cannot base 
__their__ claim on the lab's duty to Mr. Lemon.  While the
appellants claim that had Mr. Lemon known of his HIV status he may 
have taken greater precautions against contamination, the court
found that there was still no arguable claim that any of the
appellants could have contracted HIV from Mr. Lemon.  Therefore,
the appellants were not potential victims of the lab's breach of
duty to him.  For the same reason, the appellants have no vicarious
cause of action from the lab's failure to inform the Baltimores who were responsible for
treating the baby, in August 1991, seeking damages for negligent
infliction of emotional distress for the period from Dec. 9, 1990,
until the year 2005, proposing the theory that if she was still
free of AIDS at that time there would be no further risk that she
would develop the disease.  Although Brown refused any subsequent
HIV test (and the trial court refused to order her to take such a
test), she did submit to an examination by a physician selected by
the defendants in November 1993, almost two years after the
incident, and the doctor found no signs of HIV-related disease.

Considering whether the trial court was correct in refusing to
grant summary judgment to the defendants, the Appellate Division
reviewed cases from New York and elsewhere and concluded that the
reasonableness of Brown's fear was the central question in the
case, and that, at least for the first six months after the
incident, it was not necessary for her to present proof that she
was actually infected in order to bring an emotional distress claim
because a negative test result during that period would not present
a reliable indication of freedom from infection.  The court agreed
with a majority of other courts that have adopted the requirement
that the plaintiff show actual exposure to HIV as a prerequisite
for an emotional distress claim of this sort.  

In this case, because the needle was found in the HIV+ baby's crib,
there was conflicting evidence about how recently it might have
been used to draw blood from the baby (between as little as three
hours to as much as several days), and there is reliable evidence
that HIV can be transmitted through a needlestick injury (although
the odds are very low that actual transmission will occur,
especially if the last use of the needle was well before the time
of the incident), the court held that a jury could conclude that
Brown met the requirements for establishing that she had a
reasonable fear of transmission, at least for the period of time
until a negative HIV-test would have provided very high assurance
that she had not been infected.

Thus, the court concluded that it was not error for the trial court
to refuse to order Brown to take an HIV-test, and it was not error
for the trial court to have denied the defendants' motion for
summary judgment, but the court limited Brown's potential damages
to compensation for emotional distress suffered during the first
six months after the incident, since competent expert testimony
indicated that at six months a negative HIV-test would provide
highly reliable evidence that the individual was free of HIV
infection.  

In another decision announced the same date as __Brown__, the
Appellate Division applied its new rule to the case of an
undertaker who was seeking damages for emotional distress due to
fear of developing AIDS "after he allegedly pricked his finger on
the remnants of a syringe concealed within the shroud of a patient
who died of the disease." __Lombardo v. N.Y.U. Medical Center__,
1996 WL 604671 (App.Div., 2nd Dept., Oct. 15).  The plaintiff had
tested negative for HIV at 2 months and 5 months after the
incident, and had been resisting a demand by the defendants that he
take a third test.  This problem was mooted when he finally did
submit to another test and once again was negative.  The court
noted, however, that regardless of test results, it would limit the
plaintiff's potential damages to those "suffered during the first
six months following his potential exposure to HIV on August 6,
1992, unless the plaintiff presented evidence that he tested
positive for HIV." A.S.L.

Incontestability Statute Construed Against Insurance Company

The California Court of Appeal allowed the beneficiary of a life
insurance policy to recover the death benefit, despite the
insured's concealment of his HIV status, under California's
incontestability statute.  __United Fidelity Life Ins. Co. v.
Emert__, 1996 WL 546120 (Cal. App. 4th Dist., Sept. 26).  

Gregory Emert learned he was HIV positive in 1988.  In 1990 he
applied for life and disability insurance, denying any immune
deficiency disorder and omitting the name of his HIV doctor from
his application.  In 1991, 13 months after the policy was issued,
Emert submitted a claim for disability benefits, apparently seeking
benefits retroactively.  United then investigated and learned Emert
was HIV positive.  Under California's incontestability statute,
insurers have one year from the time they issue life insurance
policies to investigate and discover possible fraud.  United took
no steps to investigate potential fraud by Emert and thus the
statute barred United from contesting coverage.  

Under the incontestability provisions of the statute governing
disability insurance, United would have been able to investigate
and deny coverage based on Emert's misrepresentations.  United did
not challenge the payment of disability benefits, however, and the
court refused to exercise its equitable power to apply the same
incontestability standards to the question of the life insurance
benefit.  D.W.

Texas Appeals Court Affirms Summary Judgment Against AIDS-Fear
Claim

A unanimous panel of the Texas Court of Appeals in San Antonio
affirmed a District Court decision granting summary judgment in a
case where the only alleged injury was fear of developing AIDS. 
__Drury v. Baptist Memorial Hospital System__, 1996 WL 591889 (Oct.
9).  Jennifer Drury required surgery for a hysterectomy in 1992. 
Her doctor advised her that blood transfusions would undoubtedly be
required during surgery and, after a discussion of the risks
involved, she arranged by agreement with her doctor to have her
friends donate four units of blood rather than rely on blood from
the blood bank.  However, she did sign a consent form prior to
surgery authorizing the doctor to deal with situations as they
arose during surgery, and she was advised of the possibility that
the directed donations from her friends might not be sufficient. 
During surgery only two units of blood were required, but the
hospital used one unit from Drury's friends and one unit from the
blood bank.  When Drury was advised of this after surgery, the
doctor had the blood bank verify through testing that their blood
was HIV-negative, and Drury tested HIV-negative several months
after the operation.

Nonetheless, Drury filed suit against the hospital, claiming
negligence in exposing her to banked blood when she had agreed with
her doctor that directed donations would be used, and alleging fear
of contracting AIDS as her injury on the negligence claim.  (She
also made contract claims.)  After reviewing the growing body of
case precedents from other jurisdictions involving similar issues,
the court concluded, in an opinion by Justice Cantu, that Texas
would require a showing of actual exposure to HIV as part of a
negligence claim against a doctor (medical malpractice) for fear of
contracting AIDS.  Since the donated blood tested negative, the
court found that Drury had not alleged facts sufficient to
withstand summary judgment on this claim.  The court also noted
that Texas precedent disallows attempting to make an end-run around
the requirements for medical malpractice claims by using contract
theories, and affirmed summary judgment on those claims as well. 
A.S.L.

Wisconsin Appeals Court Adopts "Proof of Contaminated Source"
Requirement in AIDS Phobia Case

A person who suffers a needlestick injury in Wisconsin may not sue
for emotional distress from fear of developing AIDS unless the
person can demonstrate that the needle involved is a "contaminated
source," held the Court of Appeals of Wisconsin on Oct. 30 in
__Babich v. Waukesha Memorial Hospital__, 1996 WL 625750.  Pamela
Babich was admitted to the hospital because of an asthma attack. 
While settling into her bed, she felt a "poke" in her buttocks, and
discovered she had been stuck with a syringe that had been left in
the bed.  She also felt blood near the entry wound.  The injury was
minor and a scab formed that healed in a week.  On advice of her
physician, she took an HIV test six months later, which was
negative, and took two more tests with negative results at six
month intervals.  Her physician assured her that the chance of
contracting AIDS was unlikely, but she developed a fear that caused
her to refrain from touching her children or having unprotected sex
with her husband.  Babich conceded that "she did not have specific
knowledge that this needle had been in contact with any HIV-
positive patient or that the hospital was even treating a person
who was HIV-positive."

After summarizing the cases from other jurisdictions and noting
prior Wisconsin precedents on emotional distress claims, Judge
Brown wrote for the court that it was necessary to make a basic
policy decision, selecting among two different approaches taken by
courts in other states.  One approach, asking whether the
plaintiff's fears were reasonable under all the circumstances, was
rejected because it seemed inconsistent with the principles that
Wisconsin courts had adopted for dealing with emotional distress
claims, most notably in __Bowen v. Lumbermens Mut. Casualty Co.__,
517 N.W.2d 432 (1994).  In adopting the alternative approach, which
requires the plaintiff to be able to allege that her needlestick
injury came from a contaminated source such that it was at least
possible that she had been exposed to HIV, the court emphasized
three factors: the plaintiff's injuries "were out of proportion to
Waukesha Memorial's potential culpability" due to the slim
likelihood of actual transmission; allowing such claims would
"place an unreasonable burden on future defendants," unnecessarily
adding to the costs of health care by generating needless
precautions; and, that following the alternative course would
subject the courts to a flood of "fear of AIDS" or "AIDS phobia"
claims.

"Taking the Babiches' evidence in its best light, they can only
prove that Pamela's skin was punctured by an errant needle and that
she was in a hospital.  While we do not dispute that such an event
could cause a layperson unfamiliar with the scientific data to
reasonably fear that he or she was going to contract AIDS, we
cannot identify any other way to segregate a needlestick injury
from some other event which could also create a reasonable, but
scientifically unfounded, fear," wrote Brown. A.S.L.

North Carolina Appeals Court Allows Emotional Distress Claims to
Proceed Against Gossiping EMS Workers; Dismisses Defamation and
Civil Rights Claims

While dismissing claims of defamation and violation of civil
rights, a unanimous panel of the North Carolina Court of Appeals
reversed a trial court and allowed claims of intentional and
negligent infliction of emotional distress to proceed against EMS
workers who spread rumors that an employee of a restaurant had
AIDS.  __Chapman v. Byrd__, 475 S.E.2d 734 (Oct. 1).  The
plaintiffs are the owner and employees of Sub Station Deli. 
Defendant Mitchell Byrd, director of Hoke County Emergency Medical
Services (EMS) told some employees not to go to the Deli because "I
heard someone over there has AIDS." Reports of this statement
subsequently appeared in two local newspapers and on a local
television news report.  One of the articles reported that the
assistant director of EMS, another defendant, told the newspaper:
"Mr. Byrd told Mr. Blackburn, `there's a rumor going around that
someone at the Colonial House has HIV,' as a professional courtesy
in case they had to go pick them up or something."

The court of appeals, in an opinion by Judge Lewis, found that a
defamation claim could not be brought on these facts because the
statements did not pertain to a particular individual, and that a
group defamation claim could not be brought because the statement
did not indicate that most or all of the employees had AIDS.  The
court also found that a civil rights claim under 42 U.S.C. sec.
1983 could not be brought solely on the basis of damage to
reputation of the plaintiffs.

However, the court did find that these factual allegations were
sufficient to survive a motion for summary judgment on claims of
intentional and negligent infliction of emotional distress. "Here,
the statements were allegedly made by the Director and Assistant
Director of the Hoke County EMS, persons whose statements would be
highly credible in the eyes of the citizens of the area,
particularly in matters of public health.  Given this credibility,
the likelihood of harm caused by false assertions by EMS officials
that `someone' has the AIDS virus was extremely high.  Given these
circumstances, we hold that the statements made by defendants Byrd
and Reaves can, as a matter of law, constitute extreme and
outrageous conduct."  Further, the court found that a jury could
"legitimately find it reasonably foreseeable that plaintiffs would
suffer severe emotional distress as a result of public statements
by defendants, given their positions as public health officials,
that `someone' at the Colonial House has AIDS or is HIV positive,"
and found that the plaintiff's allegations that EMS officials had
a duty to verify such information before making statements about it
were sufficient to satisfy the pleading requirements for negligent
infliction of emotional distress.  A.S.L.

Florida Appeals Court: Missing Witness Not Held Against Hospital
Employer in AIDS Malpractice Case

The failure of a hospital defendant in an AIDS malpractice case to
call a former staff physician as a witness could not serve as the
basis for setting aside a verdict in favor of the hospital, ruled
the Florida District Court of Appeal, 3d District, on Oct. 16 in
__Lowder v. Economic Opportunity Family Health Center__, 1996 WL
590973.  Vernelle Lowder began using defendant's facilities in
1968.  In 1990, she sought treatment for a thyroid problem and was
told that since she had undergone surgery involving a blood
transfusion ten years earlier, she should get an HIV test.  Her
blood sample was sent to the Florida Department of Health and
Rehabilitative Services for testing.  They performed the test
incompetently and reported a positive result.  When Lowder was
informed of this, she began treatment and monthly examinations.  In
October 1992, convinced that she was terminally ill, she gave
custody of her children to her mother and moved to Georgia, where
she sought treatment with another doctor, who insisted on a new HIV
test, which was negative.  Lowder then sued the Center, the state
department that performed the test, and another doctor she had
consulted prior to moving to Georgia.  She alleged, among other
things, that the defendants should have known based on her t-cell
counts that she could not have been infected for ten years at the
time of the false positive test; such long-term infection would
have generated much lower t-cell counts that a competent physician
would have detected as inconsistent.  The jury ruled against the
state department and the other physician, but in favor of the
Center.

Rejecting Lowder's argument that the trial judge erred by rejecting
a requested instruction that the jury could make an adverse
inference from the failure of the Center to call Lowder's treating
physician as a witness, the court noted that the doctor in question
had resigned years ago and moved to California, and so was not
within the control of the Center.  Furthermore, the court pointed
out, Lowder could have attempted to obtain the doctor as an adverse
witness, and the Center did nothing to impede her in that regard. 
A.S.L.

Court Reverses Denial of Disability Benefits to HIV+ Applicant

In a very rare concurrence, to judge by published decisions, a
federal district court has reversed a determination by the Social
Security Administration and ordered an award of disability benefits
to an HIV+ applicant.  __Hamilton v. Chater__, 1996 WL 585948
(U.S.Dist.Ct., D.Ore., Oct. 8).  District Judge Frye found that the
hearing record on Tonya Hamilton's application for benefits did not
support the determination that she was not disabled within the
meaning of the statute.  Hamilton, whose doctor had testified that
she was unable to work, was denied benefits by an Administrative
Law Judge (ALJ) who decided that despite this evidence (and some
corroborative evidence from other doctors), Hamilton was capable of
doing light work.  (She is, by the way, a single mother of three
small children whose male partner passed away from AIDS
complications a few years ago.)  

The court applied the test set forth by the 9th Circuit in __Cotton
v. Bowen__, 799 F.2d 1403 (1986).  "Under the Cotton test (1)
Hamilton must produce objective medical evidence of an impairment
or impairments; and (2) Hamilton must show that the impairment or
combination of impairments could reasonably be expected to (not
that it did in fact) produce some degree of symptoms.  Here, there
is medical evidence that Hamilton is infected with the HIV virus
[sic]; that she is depressed; and that she has suffered from
outbreaks of the herpes virus.  These impairments could reasonably
be expected to produce fatigue.  The ALJ was required to make
specific findings stating clear and convincing reasons for
rejecting the testimony of Hamilton as to fatigue. . .  Hamilton's
reported activities of daily living are minimal and consistent with
her reported fatigue.  The ALJ's report of a minimal treatment
regimen can be explained to some extent by the fact that Hamilton
has no insurance coverage, and the reference to `objectively
determined medical diagnoses' does not provide a clear and
convincing reason to reject Hamilton's testimony in that the record
establishes depression and HIV infection which could reasonably be
expected to produce fatigue.  The ALJ has not provided clear and
convincing reasons to reject Hamilton's testimony of fatigue in
light of the record."  The court also found that there was not
substantial evidence in the record "to support the conclusion of
the ALJ that Hamilton has the residual functional capacity to
perform a reduced range of light work." Finding that the record
showed Hamilton is not able "to engage in any substantial gainful
activity by reason of her physical impairments," Judge Frye ordered
the award of disability benefits.  A.S.L.

NY Trial Court Denies Summary Judgement to Defendant on AIDS Phobia
Claim

Justice Sheila Abdus-Salaam of N.Y. Supreme Court, N.Y. County,
refused to grant summary judgment to defendant hospital on an AIDS-
phobia claim by a pedestrian outside the hospital suffered a cut
during an encounter with an out-of-control garbage dumpster. 
__Bishop v. Mt. Sinai Medical Center__, NYLJ, 10/28/96, p. 28, col.
5.  Phyllis Bishop alleged that while walking on Madison Avenue
after visiting a friend at the hospital on May 31, 1991, she was
struck by a garbage dumpster being pushed by a Mt. Sinai Hospital
employee.  The dumpster was piled high with plastic garbage bags. 
Bishop claims she was pinned against a car by the dumpster and she
placed her hands in the air to protect her face and body and felt
a sharp object from the dumpster lacerate her right middle finger,
and left ring and middle fingers.  The object was never recovered,
and the hospital maintains it could not have been an HIV-
contaminated surgical instrument because such instruments would not
be disposed of in a dumpster in this fashion.  Although the sharp
object was never recovered and tested, Mt. Sinai asserts it was
most likely part of the kitchen refuse that was most likely
contained in the dumpster.  After her encounter with the dumpster,
Ms. Bishop was taken into the hospital and advised by emergency
room doctors to get HIV testing and take AZT. She claims that this
led to post-traumatic stress disorder and a variety of emotional
problems.  She has never tested positive for HIV.

The hospital sought summary judgment, contending that there was no
reasonable basis for Ms. Bishop's fear of contracting AIDS.  The
court reviewed New York precedents on AIDS phobia, and determined
that New York law requires the plaintiff "to show actual exposure
to the HIV virus" in order to prevail on her claim, but observed
that "the object which cut plaintiff has allegedly disappeared and
cannot be tested to rule out contamination."  The court also
observed that "there is no evidence concerning whether the type of
wound allegedly inflicted on Bishop would be consistent with that
produced by a scalpel or other medical instrument used in the
treatment of AIDS patients.  And, defendant has not given any
conclusive evidence concerning the hospital's actual compliance
with its medical instrument removal protocol.  There also is no
proof at this time as to the exact origin of the refuse in the
garbage dumpster so as to rule out any possible contamination by
infected medical waste.  The court is, thus, unable to ascertain if
plaintiff's alleged fears are reasonable because there is no
information about the type of instrument which injured her."

Even though Bishop has still not tested positive for HIV more than
five years after the incident, Justice Abdus-Salaam concluded that
without further expert medical evidence a conclusion about the
reasonableness of her continued fears could not be reached.  The
defendant's motion for summary judgment was denied.  A.S.L.

AIDS Law & Society Notes

The Centers for Disease Control and Prevention (CDC) is
establishing a confidential registry for health care workers who
believe they have been exposed to HIV.  The registry is being
established to facilitate a study of whether immediate prophylaxis
with AZT or idinavir will reduce the likelihood that the health
care workers will seroconvert to HIV+ status.  To maintain the
confidentiality of HIV-exposed health care workers, registry
participants will be designated by number and only their primary
physician will know they are participating, according to a news
report in BNA's __Daily Labor Report__ No. 193, 10/4/96, p. A-5/6.

The U.S. Supreme Court has refused to review the 3rd Circuit's
decision in __Doe v. Southeastern Pennsylvania Transportation
Authority__, No. 95-1742 (cert. denied, 10/7/96), decision below:
72 F.3d 1133, in which the lower court reversed a jury verdict that
had found that the self-insured employer's health plan had violated
the right of privacy of an HIV-infected employee by allowing
various personnel of the employer know that the employee in
question was receiving payment for HIV-related medications.  

Two recent federal circuit court decisions in non-AIDS cases may
prove significant in future AIDS-related litigation.  In __Parker
v. Metropolitan Life Ins. Co.__, 1996 WL 613142 (6th Cir. Oct. 25),
the court held that discrimination in insurance coverage may
violate Title III of the Americans With Disabilities Act.  The case
involves a former employee who became totally disabled (and unable
to work) due to severe depression.  Under the long-term disability
plan provided by her employer, she received 24 months of coverage.
If she had a "physical" disability, the coverage would have been
longer.  She sued under Titles I and III of ADA and ERISA.  The
district court dismissed her claims.  Reversing as to the Title III
claim, the appeals court held that insurance can be conceptualized
as a "service" and thus subject to the non-discrimination
requirements of ADA.  There is quite a bit of interesting
discussion in the opinion by Circuit Judge Merritt concerning the
meaning of the insurance provisions in the ADA. * * *  In __Krauel
v. Iowa Methodist Medical Center__, 95 F.3d 674 (8th Cir. Sept.
11), the court held that an employer did not violate the ADA by
failing to provide insurance coverage for an employee's fertility
treatments.  The court held that engaging in reproductive activity
is not a "major life activity," and thus infertility is not a
disability.  This ruling could be significant in cases involving
discrimination against HIV+ persons, since some courts have
premised the finding that HIV-infection is a disability on the
conclusion that it substantially limits an infected person's
ability to engage in reproductive activity.  

Yet another opportunity to create a legal precedent concerning
coverage for AIDS under employee benefit plans was forestalled by
a settlement agreement negotiated by the EEOC.  Under the
settlement in __EEOC v. United Welfare Fund__, No. 96-CIV-7829
(U.S.Dist.Ct., S.D.N.Y., Oct. 17), the Fund will pay $8750 to the
estate of Keith Overton, a former court reporter, as well as $6450
in medical bills that he incurred for AIDS treatment.  As part of
the settlement, the Fund will retroactively remove AIDS-related
benefits caps that it instituted in 1991.  BNA __Daily Labor
Report__ No. 210, 10/30/96, p. A-7.

Officials of the EEOC, which enforces the Americans With
Disabilities Act (ADA), and the Social Security Administration
(SSA), which administers federal disability income programs, are
conferring on possible administrative solutions to a problem
developing in ADA caselaw: employees who are discharged allegedly
due to their disabilities and apply for and receive disability
benefits based on their declaration of disability are then being
denied a remedy for their discharge under the ADA by some federal
courts, which hold that the declaration of disability is an
admission by the former employee that he or she is not "qualified"
to work and thus not eligible for protection under the ADA.  EEOC
Associate Legal Counsel Peggy Mastroianni told BNA's __Daily Labor
Report__ (No. 197, 10/10/96, p. C-1) that the EEOC will attempt to
fight this interpretation of the ADA in "whatever forum we can."
Agency officials point out that the term "disability" has distinct
meanings under each statute and that the courts' interpretation
puts individuals in a difficult Catch-22 situation; ADA claims may
take years to resolve, and meanwhile the discharged employee may be
without income and unlikely to find a new job, and thus in serious
need of disability benefits.  Furthermore, disqualifying the
employee from pursu dating
reference.  According to an Associated Press report, Calvert told
investigators that "he had no concerns [about bringing the list to
his home] because he always reinforced the need for confidentiality
with his roommate, Gregory Wentz, who also is his partner in the
funeral-home business where they live."  The news reports indicated
that the Florida Department of Health and Rehabilitative Services,
Calvert's employer, has put a hold on new rules mandating name
reporting of HIV+ persons whilene No. 3, 12 (May/June 1996).

Heffernan, William C., __Privacy Rights__, 29 Suffolk U. L. Rev.
737 (Fall 1995) (extensive critique of sexual privacy doctrine
under federal constitution; contends __Hardwick__ was wrongly
decided).

Hemmer, Joseph J.eck for Defense or Indemnity__, 46 Fed. of Ins. &
Corp. Counsel Q. 389 (Summer 1996).

Lind, Craig, __`Pretended Families' and the Local State in Britain
and the USA__, 10 Int'l J. L. Pol. & the Family 134 (1996).

Loue, Sana, __Transsexualism in Medicolegal Limine: An Examination
and a Proposal for Change__, 24 J. Psychiatry & L. 155 (Spring
1996) (argues against characterization of transsexuality as a
gender identification disorder).

MacDonald-Druhm, Heather E., __Coming Out Ahead: In the Wake of a
Recent U.S. Supreme court Decision Favoring Gay and Lesbian Rights,
Homosexual Law Students Find Themselves Slowly Gaining
Acceptance__, Student Lawyer (ABA), Nov. 1996, p. 36.

Spruijt, Ed, and Martiyn de Goede, __Changing Family Structures and
Adolescent Well-Being in The Netherlands__, 10 Int'l J. L. Pol. &
the Family 1 (1996).

__Student Notes & Comments:__ 

Beatty, Joseph, __Constitutional Law: Is the Expectation of Privacy
Under the Florida Constitution Broader In Scope Than It Is Under
the Federal Constitution?__, 47 Fla. L. Rev. 287 (April 1995).

Blasi, Susan Silberman, __The Adjudication of Same-Sex Sexual
Harassment Claims Under Title VII__, 12 Labor Lawyer 291
(Summer/Fall 1996) (Winner of Labor Lawyer 1996 Student Writing
Competition).

Borden, Seth Howard, __Love's Labor Law: Establishing a Uniform
Interpretation of New York's "Legal Recreational Activities" Law to
Allow Employers to Enforce No-Dating Policies__, 62 Brooklyn L.
Rev. 353 (1996) (argues that prohibiting employers from discharging
employees for dating each other conflicts with employers'
obligation under Title VII to prevent sexual harassment in the
workplace).

Green, Vincent C., __Same-Sex Adoption: An Alternative Approach to
Gay Marriage in New York__, 62 Brooklyn L. Rev. 399 (1996)
(ingenious argument that New York, having allowed same-sex second-
parent adoptions, should now allow same-sex marriage for such
adoptive parents as being in the best interest of their adoptive
children).

Wistner, Rebecca A., __Cohabitation, Fornication and the Free
Exercise of Religion: Landlords Seeking Religious Exemption from
Fair Housing Laws__, 46 Case West. Res. L. Rev. 1071 (Summer 1996).

__Specially Noted:__

West Publishing Co. has published __Cases and Materials on Sexual
Orientation and the Law__ (2nd edition), by William B. Rubenstein,
formerly director of the ACLU's Lesbian/Gay Rights and AIDS & Civil
Rights Projects and presently a visiting professor at Stanford Law
School.  The first edition, published by The New Press, was the
first law school casebook to be published on lesbian and gay legal
issues.  Publication of the second edition by West marks the first
time a major casebook publisher has issued a book on this subject. 
As Rubenstein notes in his preface, this is more than a casebook,
since it collects material that will be useful to legal scholars
and practitioners, instructors of college courses on homosexual
issues, and general readers seeking a systematic exposure to the
field of lesbian and gay law.  West does not normally distribute
books through regular bookstores, but persons without ready access
to a law school bookstore may inquire about purchasing a copy
directly from West.  Call 612-687-7746, and ask for the Law School
Division.

The November 1996 issue of Harper's Magazine contains a provocative
essay by Fenton Johnson titled "Wedded to an Illusion: Do Gays and
Lesbians Really Want the Right to Marry?"  Johnson, a self-
described "AIDS widow," who suffered the indignity of being
excluded from his partner's hospital room at the time of his death,
raises important questions about the nature of marriage and the
current litigation efforts in Hawaii.

AIDS & RELATED LEGAL ISSUES: 



Ader, Mary, __Investigational Treatments: Coverage, Controversy,
and Consensus__, 5 Annals of Health L. 45 (1996).

Frumkin, William D., and Louis G. Santangelo, __Burdens of Proof
Under ADA and Rehabilitation Act__, 68 N.Y. State Bar J. No. 6
(Sept/Oct 1996), p. 38.

Kelly, Joseph M., __AIDS Phobia and Damages for Emotional
Distress__, 25 Torts, Ins. & Comp. L. Section J. (ABA) 8 (June
1996).

Passalacqua, Andrea, __When a Parent Dies of AIDS__, 23 Hum. Rts.
(ABA) No. 4 (Fall 1996), p. 4.

Schwartz, Joel, and David Murray, __AIDS and the Media__, The
Public Interest, No. 125 (Fall 1996), p. 57.

Siegler, Gregory E., __What Should Be the Scope of Privacy
Protections for Student Health Records? A Look at Massachusetts and
Federal Law__, 25 J. L. & Education 237 (Spring 1996).

Van Duch, Darryl, __Victims of Hemophilia -- And Delay__, Nat'l L.
J., Oct. 7, 1996, p.1 (detailed history of litigation by HIV-
infected hemophiliacs against drug companies).

__Student Notes & Comments:__ 

Coffey, William C., __Constitutional Law -- MBTA's Refusal to
Display Condom Advertising Creates Appearance of Viewpoint
Discrimination__, 29 Suffolk U. L. Rev. 861 (Fall 1995).

Conboy, Katherine, __Independent Health Benefit Plan May Qualify As
Employer Under Americans With Disabilities Act__, 29 Suffolk U. L.
Rev. 879 (Fall 1995).

__Specially Noted:__

Vol. 111, Supp. 1 (1996) of __Public Health Reports__, a journal
published by the U.S. Public Health Service, is devoted to 22 brief
articles about behavioral science and prevention of HIV
transmission.

__Editor's Notes:__

Correction: Our October report on the candidacy of Sabrina
Sojourner for election as D.C.'s "shadow representative" in the
U.S. House erred in describing the position, confusing it with the
District's elected Delegate.  If elected, Ms. Sojourner would be an
official lobbyist for the District, but would not have the ability
to introduce legislation, serve on committees, or have access to
the House floor. * * * All points of view expressed in
__Lesbian/Gay Law Notes__ are those of identified writers, and are
not official positions of the Lesbian and Gay Law Association of
Greater New York.  All comments in __Publications Noted__ are
attributable to the Editor.  Correspondence pertinent to issues
covered in __Law Notes__ is welcome and will be published subject
to editing. Please address correspondence to the Editor or send by
e-mail. A.S.L.