LESBIAN/GAY LAW NOTES ISSN 8755-9021 December 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; 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 SAME-SEX MARRIAGE TOPS 1996 LESBIAN/GAY LEGAL NEWS AS HAWAII JUDGE ORDERS STATE TO ISSUE LICENSES Even the first win for lesbian/gay rights in the Supreme Court in a generation could not really eclipse same-sex marriage as the top lesbian/gay legal story for 1996. The year began with the introduction of state bills condemning same-sex marriage in dozens of states across the country (of which fewer than half were enacted), articles and feature stories proliferated in the media, Congress overwhelmingly passed the so-called Defense of Marriage Act (which President Clinton cowardly signed in the middle of the night when he hoped nobody was really watching, although his campaign then tried to exploit his opposition to same-sex marriage by radio ads targeted to religious conservatives), and then finally, on December 3, for the first time in recorded history, a judge actually ordered a state to issue marriage licenses to same- sex couples. Hawaii Circuit Court Judge Kevin S.C. Chang, ruling in the long- running lawsuit by three same-sex couples, __Baehr v. Miike__, 1996 WL 694235, 1996 Haw. App. LEXIS 138 (Haw.Cir.Ct., 1st Cir.), found that the state had utterly failed to meet its burden to show that excluding same-sex couples from the institution of marriage was necessary and narrowly tailored to achieve a compelling state interest. The standard for the case was set by the Hawaii Supreme Court in 1993, when it ruled in __Baehr v. Lewin__, 825 P.2d 44, as the case was then called, that Hawaii's interpretation of its marriage laws to deny licenses to same-sex couples was a suspect classification on the basis of sex. The Hawaii constitution includes an express ban on sex discrimination. Ruling on a question of first impression, the state supreme court held that sex is a suspect classification, rendering presumptively invalid any state policy using sex as a classifying principle unless the state can show that its policy is __necessary__ to achieve a compelling state interest and narrowly tailored for that purpose. Because Hawaii was denying marriage licenses to same-sex couples because of the sex of the applicants, it had created a suspect sexual classification, just as the U.S. Supreme Court had held that Virginia created a suspect racial classification by penalizing interracial marriages when it struck down that state's law in __Loving v. Virginia__, 388 U.S. 1 (1967). The Hawaii court's legal analysis led almost inevitably to the decision by Judge Chang, because it is extremely difficult for a state to prove that categorical discrimination is absolutely necessary (not just helpful or efficient) to achieve something of crucial public interest without unduly infringing constitutional rights. In this case, observers of the state's efforts at the September 1996 trial were bemused to note their futility. Casting about for a strategy, the state settled on attempting to prove that the best family setting for raising children is the traditional husband-and-wife marriage, thus seeking to justify excluding same- sex couples in order to ensure that children are raised under "the best" circumstances. This strategy was pathetic from the start, for it was clear that many same-sex couples (and single parents and unmarried opposite-sex couples) would be raising children in Hawaii regardless of the outcome of this case, so denying access to marriage for same-sex couples would have no effect whatsoever in assuring that only "the best" families would be raising the state's children. The state also argued in court papers that it had a compelling interest "in securing or assuring recognition of Hawaii marriages in other jurisdictions," "in protecting the State's public fisc from the reasonably foreseeable effects of State approval of same- sex marriage," and "in protecting civil liberties, including the reasonably foreseeable effects of State approval of same-sex marriages, on its citizens," but introduced __no__ evidence at trial on any of these points. Judge Chang concluded that the lack of evidence on these points made them irrelevant to his decision. The state called a parade of "expert" witnesses, who voiced their opinions that opposite-sex couples were superior to same-sex couples as parents, but then on cross-examination all admitted that their opinions were not based on studies and that they were aware that same-sex couples had in many cases proven to be good parents. The plaintiffs brought their own parade of experts who had the advantage, in terms of credibility, of being able to rely on an array of studies published in peer-reviewed journals over the past two decades showing that children raised by same-sex couples end up doing just as well (even better on some measures) as children raised by opposite-sex couples. In light of this record, Judge Chang's course was clear: the state had neither shown that it is invariably preferable that children be raised by opposite-sex couples, nor had it shown that same-sex couples could not be good parents. And the state never made any attempt to show that it was necessary to exclude all same-sex couples from being married in order to ensure that Hawaiian children would have the asserted benefits of being raised by traditionally married opposite-sex couples, thus totally failing to address the "narrow tailoring" prong of strict scrutiny. Furthermore, some of the state's witnesses conceded on cross-examination that children being raised now by same-sex parents would be benefitted if their parents were allowed to marry. Judge Chang's findings of fact were a ringing endorsement for lesbian and gay parents: "The evidence presented by Plaintiffs and Defendant establishes that the single most important factor in the development of a happy, healthy and well-adjusted child is the nurturing relationship between parent and child. More specifically, it is the quality of parenting or the `sensitive care-giving' described by David Brodzinsky, which is the most significant factor that affects the development of a child. "The sexual orientation of parents is not in and of itself an indicator of parental fitness. The sexual orientation of parents does not automatically disqualify them from being good, fit, loving or successful parents. The sexual orientation of parents is not in and of itself an indicator of the overall adjustment and development of children. "Gay and lesbian parents and same-sex couples have the potential to raise children that are happy, healthy and well-adjusted. Gay and lesbian parents and same-sex couples are allowed to adopt children, provide foster care and to raise and care for children. Gay and lesbian parents and same-sex couples can provide children with a nurturing relationship and a nurturing environment which is conducive to the development of happy, healthy and well-adjusted children. Gay and lesbian parents and same-sex couples can be as fit and loving parents, as non-gay men and women and different-sex couples. "While children of gay and lesbian parents and same-sex couples may experience symptoms of stress and other issues related to their non-traditional family structure, the available scientific data, studies and clinical experience presented at trial suggests that children of gay and lesbian parents and same-sex couples tend to adjust and do develop-in a normal fashion. Significantly, Defendant has failed to establish a causal link between allowing same-sex marriage and adverse effects upon the optimal development of children. ". . . [T]here is a benefit to children which comes from being raised by their mother and father in an intact and relatively stress-free home. However, in this case, Defendant has not proved that allowing same-sex marriage will probably result in significant differences in the development or outcomes of children raised by gay or lesbian parents and same-sex couples, as compared to children raised by different-sex couples or their biological parents. In fact, Defendant's expert, Kenneth Pruett, agreed, in pertinent part, that gay and lesbian parents `are doing a good job' raising children and, most importantly, `the kids are turning out just fine.' "Contrary to Defendant's assertions, if same-sex marriage is allowed, the children being raised by gay or lesbian parents and same-sex couples may be assisted, because they may obtain certain protections and benefits that come with or become available as a result of marriage. See __Baehr v. Lewin__, 74 Haw. 530, 560-561, 852 P.2d 44, 59 (1993), for a list of noteworthy marital rights and benefits. "In Hawaii, and elsewhere, same-sex couples can, and do, have successful, loving and committed relationships. In Hawaii, and elsewhere, people marry for a variety of reasons including, but not limited to the following: (1) having or raising children; (2) stability and commitment; (3) Pmne1onal closeness (4) intimacy and monogamy; (5) the establishment of a framework for a long-term relationship; (6) personal significance; (7) recognition by society; and (8) certain legal and economic protections, benefits and obligations. . . . In Hawaii, and elsewhere, gay men and lesbian women share this same mix of reasons for wanting to be able to marry. "Simply put, Defendant has failed to establish or prove that the public interest in the well-being of children and families, or the optimal development of children will be adversely affected by same-sex marriage." Capping detailed conclusions of law, Judge Chang held that "the evidence presented by Defendant does not establish or prove that same-sex marriage will result in prejudice or harm to an important public or governmental interest. Defendant has not demonstrated a basis for his claim of the existence of compelling state interests sufficient to justify withholding the legal status of marriage from Plaintiffs. . . The evidentiary record presented in this case does not justify the sex-based classification of HRS 572-1." Chang concluded his opinion by enjoining the Director of the Department of Health, Lawrence H. Miike, and his departmental employees, "from denying an application for a marriage license solely because the applicants are of the same sex." The state quickly filed a motion to stay the ruling pending appeal to the Hawaii Supreme Court. Judge Chang granted the stay on Dec. 4. A stay is probably the most prudent thing at this time, to try to forestall precipitous action by the newly-elected Hawaii legislature, generally seen as less supportive of same-sex marriage rights than its predecessor, while the case proceeds to appellate review. Although attempts in the legislature to overrule the Hawaii Supreme Court's 1993 decision through a state constitutional amendment have fallen short so far, the imminence of a final victory for the plaintiffs, combined with a controversy-ridden ballot measure (passed by voters but already questioned in a court challenge by the state AFL-CIO) mandating the legislature to call a state constitutional convention, will surely create a volatile political situation in Hawaii in the months ahead. The incumbent chair of the Senate committee that stalled the amendment last time around was not re-elected, although his successor as committee chair is expected to oppose such an amendment in the next session. Polls in Hawaii still show a majority of the electorate opposed to same-sex marriage, although there is considerable support for domestic partnership recognition. Traditional native Hawaiian culture, it is said, accepted the legitimacy of same-sex relationships, making Hawaii a state uniquely receptive for progress in this area. Perhaps overlooked by some in the same-sex marriage excitement was the extraordinary action of the Hawaii Senate last year in narrowly passing a broadly-worded domestic partnership bill that would have given same-sex couples access to virtually all the rights of married couples under state law. Although the bill never came to a vote in the other house, it remains in reserve as a potential bargaining chip in the ongoing legislative response to the same-sex marriage issue. Representing the plaintiffs in this historic litigation are Hawaii attorneys Dan Foley, who initially took on their case many years ago at a time when lesbian and gay rights legal organizations were discouraging same-sex marriage litigation, and Kirk Cashmere, and the Marriage Project of Lambda Legal Defense & Education Fund, directed by Lambda staff attorney Evan Wolfson, which entered the case at the plaintiffs' invitation when it reached the appellate level. Foley, Wolfson and Cashmere worked as co-counsel for the trial before Judge Chang. A.S.L. @SEC = LESBIAN/GAY LEGAL NEWS Supreme Court to Review Internet Indecency Statute The U.S. Supreme Court announced Dec. 6 that it would review a decision by a special three-judge district court that found unconstitutional two key provisions from the Communications Decency Act of 1996. __Reno v. American Civil Liberties Union__, No. 96- 511; decision below: __ACLU v. Reno__, 929 F.Supp. 824 (E.D.Pa., June 11, 1996). The stricken provisions prohibited electronic transmission of "indecent" materials (47 U.S.C. sec. 223(a)) and electronic transmission of "patently offensive" materials (47 U.S.C. sec. 223(d)) on the Internet. Although the primary Congressional motivation in passing these provisions was to ban the transmission of pornographic pictures, the broadly drafted language could pose a clear threat to free speech about sexual matters on the Internet. The district court unanimously agreed that these restrictions violated constitutional protection for freedom of speech, although each of the judges wrote a separate opinion justifying this conclusion. The Court's announcement noting probably jurisdiction in the case also set a tight briefing schedule. The government's brief is due January 21, the appellees' briefs to be filed by February 20, and reply briefs by March 7, with argument to follow shortly thereafter. A.S.L. Lambda Victorious in Nabozny Trial; Monetary Settlement of Almost $1 Million Reached After Jury Verdict In the first such case to go to trial under federal court jurisdiction of constitutional tort claims against state officials, lawyers from Lambda Legal Defense & Education Fund won a jury verdict on liability Nov. 19 on claims by Jamie Nabozny against three Ashland, Wisconsin, public school officials who failed to take action to protect him from homophobic harassment and assault by fellow high school students. (The jury also determined that the school district was not itself liable as an entity.) Following the jury verdict on liability, lawyers for the plaintiff and the school district's liability insurer negotiated through the night and announced a monetary settlement of Nabozny's claim on Nov. 20. The defendants' insurer will pay Nabozny $900,000 in damages and up to $62,000 for Nabozny's medical expenses stemming from his harassment experiences at the school. When Nabozny first brought his claim to the federal district court in Wisconsin, it was dismissed due to doubts by the judge that the court had jurisdiction. But the U.S. Court of Appeals reversed that ruling in July, setting the stage for a full trial on the merits in federal district court. __Nabozny v. Podlesny, 92 F.3d 446 (Jul. 31). The appeals court found that Nabozny had stated an equal protection claim by alleging that the school routinely enforced its sexual harassment policy when male students harassed female students, but refused to enforce it when male students harassed another male student; this potentially offended equal protection whether the discrimination was characterized as being on account the victim's sex or sexual orientation. The trial began on Nov. 18, with the jury announcing its verdict on the 19th, after hearing testimony by Nabozny, his mother, and another former student detailing the harassment and the school's failure to take action, and testimony by the defendants claiming that they were unaware of Nabozny's problems. Nabozny, now 21, has become an eloquent spokesman on the issue of the needs of gay youth in the nation's schools. Nabozny's trial attorney was Lambda cooperating attorney David Springer of Skadden, Arps, Slate, Meagher & Flom, with assistance from Patricia Logue, Managing Attorney of Lambda's Chicago office, and Lambda staff attorney David Buckel from Lambda's New York office. Although the settlement means that there will be no appellate ruling on the __merits__ in this case, a precedent has been set by the 7th Circuit's published opinion upholding the right of action for lesbian/gay students who are not afforded equal assistance in combatting anti-gay harassment from fellow students, which should prove useful in other cases to young people who suffer unredressed harassment in school because of their actual or perceived sexual orientation. A.S.L. 9th Circuit Finds Restrictions on National Endowment for the Arts Grants Unconstitutionally Vague and Content-Based Ruling on a challenge brought by applicants for funding from the National Endowment for the Arts whose applications were denied, a divided panel of the U.S. Court of Appeals for the 9th Circuit affirmed a district court decision that part of the standard adopted by Congress is both impermissibly vague and imposes an impermissible content-based restriction on protected speech. __Finley v. National Endowment for the Arts__, 1996 WL 636040. In the majority were Circuit Judges Browning and Ferguson, with Circuit Judge Kleinfeld dissenting. Congress responded to a public controversy surrounding certain NEA- funded projects, including an exhibit of homoerotic photographs by Robert Mapplethorpe and artwork by Andres Serrano criticized as "blasphemous," by amending the NEA's controlling statute to require that in deciding on grant applications, the endowment must "tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public." Among those whose grant applications were denied under this new standard was prominent gay performance artist Tim Miller, who is a co-plaintiff in this case. Affirming a decision by District Judge Tashima, the majority rejected arguments by the NEA that the "decency and respect" language was not really an operational part of the statute, and subjected the language to careful analysis under due process and first amendment principles. The NEA had argued that it could, by regulation, implement this language in a way that would obviate any vagueness problem, but the court was not buying this argument, pointing out that "the NEA has failed to present a narrowing construction that is consistent with the language and purpose of the statute. . ." Particularly addressing the contention that NEA could construe the language only to ban grants for obscene art, Judge Browning wrote that Congress had adopted this provision "because it was broader and had a different meaning than the provision prohibiting the funding of obscene art." Browning concluded that the problem with the provision was that it, in effect, created no discernible standard at all: "Since it is not susceptible to objective definition, the `decency and respect' standard gives rise to the danger of arbitrary and discriminatory application. It grants government officials power to deny an application for funding if the application offends the officials' subjective beliefs and values. Inevitably, NEA's decision not to fund a particular artist or project as indecent or disrespectful will depend in part on who is judging the application and whether that official agrees with the artist's point of view. Under such a grant of authority, funding may be refused because of the artist's political or social message or because the art or the artist is too controversial. This danger is especially pronounced because a vague statute effectively shields decisions from review. Where First Amendment liberties are at stake, such a grant of authority violates fundamental principles of due process." Although this analysis was sufficient to declare the statute unconstitutional, the court also addressed the alternative ground for challenge: that the statute was a content-based restriction on speech. Here the court had to distinguish the decisions in __Regan v. Taxation With Representation__, 461 U.S. 540 (1983), and __Rust v. Sullivan__, 500 U.S. 173 (1991), in which the Supreme Court had upheld what appeared on their faces to be content-based speech restrictions. In those cases, the Court said, that "when the government appropriates public funds to establish a program, it is entitled to define the limits of that program." But Browning observed that the Court recognized limitations to this general principle when it explained in __Rust__ that such an approach would not apply to traditional public fora or to universities. Browning drew from this the teaching that content-neutrality would be required if a particular area is a "traditional sphere of free expression," or if the government's intention in establishing a particular program is to "encourage a diversity of views from private speakers." To Browning, the NEA seemed a prime example of these exceptions to the more general rule: the NEA was established to deal with a traditional sphere of free expression -- theater and art -- and was intended to democratize theater and art by spreading money around to a wide variety of artists. Objecting to these conclusions, Judge Kleinfeld argued that government is not required to pay for art just because the constitution precludes the government from directly censoring such art. "By drawing the line between private expression and government conduct, we preserve liberty for individual expression, while preserving democracy for governmental decisions. Any time government enters a previously private sphere of conduct, the line becomes blurred, and the issues difficult." Kleinfeld argued that NEA grants were not an entitlement; only a handful of grants are given each year in relation to the huge number of applications, and the decision whether to fund a particular application is necessarily content-based. "Of course the statutory criteria are vague," Kleinfeld conceded. "`Decency and respect for the diverse beliefs and values of the American people' is vague. `Artistic excellence' and `artistic merit' are also vague, and could not be proper criteria for censorship or discrimination in an entitlement program. The constitution would not allow the government to censor expression on the ground that it was not art, or though art, was not excellent art. But this does not mean that the government cannot condition prizes on the excellence of art." If the NEA grants are seen as, in essence, prizes, Kleinfeld argues, the problems with content-based decisionmaking or vague standards really disappear. The plaintiffs are represented by David Cole on behalf of the Center for Constitutional Rights, with amicus assistance from numerous pro bono attorneys, as well as People for the American Way. A.S.L. 4th Circuit Rejects Selland Appeal Relying on its recent en banc decision in __Thomasson v. Perry__, 80 F.3d 915 (4th Cir. en banc), cert. denied, 65 U.S.L.W. 3033 (Oct. 21, 1996), the 4th Circuit denied an appeal by Lieutenant Dirk Selland from a decision by U.S. District Judge Joseph Young upholding Selland's discharge from the Navy based on his statement that he is gay. __Selland v. Perry__, 1996 WL 647265 (Nov. 7). The court decided to dispense with oral argument "because the dispositive issue has recently been decided authoritatively," and ordered "dissolved forthwith" the injunction against discharge that Judge Young had issued pending appeal of the order. A.S.L. Massachusetts Appeals Court Unswayed by Juror Admission of Homophobia Despite a juror's post-verdict confession of anti-gay bias, a Massachusetts appellate court turned down a defendant's bid for a new trial. In __Commonwealth v. Delp__, 1996 WL 665794 (Oct. 8), the Appeals Court of Massachusetts affirmed Christian Delp's conviction of three counts of rape of a fifteen-year-old child and one count of contributing to the delinquency of a minor. Shortly after the verdict was reached, a member of the __Delp__ jury wrote to the court that as soon as the juror heard Delp's voice he immediately realized that the defendant was a homosexual. From that point on, the juror revealed, he accepted all the prosecution's testimony "as gospel" and dismissed as "unsubstantial" all of the defense testimony. After defense counsel moved for a new trial, the trial court held a hearing and heard oral testimony. The juror testified that besides being influenced by his own anti-gay bias, he was influenced by anti-gay remarks of other jurors. Responding to questions from the bench and the prosecutor, the juror stated that, at the time it was delivered, he was satisfied with the verdict and that he tried not to be biased. One month after the hearing, the court, without findings, denied the motion for a new trial. The appellate court emphasized that precedent supported "the importance of the finality of the jury verdict." Towards this end, admissible juror testimony should be limited to the intrusion of external elements which can be objectively evaluated. Testimony as to matters which are residing in a juror's consciousness are outweighed by the requirement for stability in verdicts and therefore should be inadmissible. Although courts allow evidence of juror bias which surfaces during deliberations, Delp's counsel chose not to question other jurors about their prejudices. On the other hand, the prosecution made no objection to the admissibility of evidence of the bias of the juror who came forward. The court, however, gave the juror's testimony little weight and characterized it as "oft expressed second thoughts of a conscientious juror." The court reasoned that the trial judge's conclusion after he questioned the juror implied that the juror was unbiased. In addition to its rejection of Delp's claim of juror bias, the appellate court found insufficient his additional claims that he had ineffective assistance of counsel and that the prosecution failed to disclose exculpatory evidence. C.W. NY Appellate Division Upholds Barring Evidence of Gay Victim's Past Conduct in Murder Trial In a unanimous decision in __People v. Tenace__, 1996 WL 630943 (3rd Dept. Oct. 31), the Appellate Division of the New York Supreme Court, Third Department, affirmed the trial court, ruling that the defendant in a murder case had suffered no prejudice when evidence concerning the victim's past sexual conduct was not admitted into evidence. The defendant, Tenace (19 years old at the time of the crime) was convicted of manslaughter in the first degree and sentenced to 8 to 25 years. The case was one where there were obvious sexual overtones. The record showed that Tenace and another young male co-defendant, Garrette, were picked up by the 68-year-old male victim in downtown Schenectady, New York. Garrette testified at trial that as the victim drove them to his home, he asked them questions about male sex and discussed liaisons with them. He testified that after they arrived at his home, the victim came on to him, grabbing him by the crotch and suggesting intercourse. Tenace testified that he rejected these advances, but that he and Garrette agreed to pose for the victim in their underwear, after which time the victim would take them home. Tenace testified that after the pictures were taken, he heard the co-defendant yelling at the victim, and he observed the victim making advances on Garrette. The two then attacked the victim, giving him a severe beating and striking him with a ceramic statue. The victim's hands and feet were bound and he was gagged. The perpetrators then stole the statue used in the assault, a VCR, money from the victim's wallet, Christmas gifts and the victim's automobile. The house was cleaned of any indication of their presence. The victim was found dead in the condition he was left, a day later. Tenace contends that evidence of the victim's past sexual conduct with other young men was relevant in order to prove his defense of justification and severe emotional disturbance. New York's Crim. Prac. L. 60.43, however, prohibits admission of evidence of the victim's past sexual conduct unless the evidence is determined to be relevant and in the interests of justice after an offer of proof. The Appellate Division ruled that no such showing was made to the trial court, the defense having only made general statements to that effect. More important, said the court, was that the State never challenged the victim's homosexual proclivities; indeed, they were acknowledged in the State's opening statement. Tenace testified in great detail at trial as to the nature of the sexual advances made, the photos shown to him, and the pictures taken of him. Thus, the court ruled, the record was replete with evidence of the victim's sexual proclivities, and any testimony as to past sexual conduct would have been merely cumulative. S.K. Domestic Partnership & Marriage Notes Among early reactions to the __Baehr v. Miike__ decision (see lead story): Massachusetts Governor William Weld, a Republican, told the __Boston Globe__ (Dec. 5) that in his view DOMA is unconstitutional, and that Massachusetts should extend full faith and credit to same-sex marriages performed in Hawaii. As to his credentials to pronounce on the constitutionality of statutes, Weld is a lawyer who served as a high official in the U.S. Justice Department during the Reagan Administration. In another reaction, Tammy Baldwin, a state legislator in Wisconsin, announced she would introduce a bill to authorize same-sex marriage in that state, while the state legislator who had sponsored last year's unsuccessful anti-same-sex marriage bill indicated he would push for a state constitutional amendment. Following up on a vote reported last month, the San Francisco Board of Supervisors took a second vote on Nov. 4 on a measure that will bar the city from contracting with private employers who do not offer employee benefits to domestic partners of their employees on the same basis as spouses. Mayor Willie Brown, who had stated his support for the bill "in concept," signed the measure soon after passage. There is a provision authorizing waiving this requirement where a particular company would be "economically disadvantaged" by adhering to the law, or where the business is "the sole provider" of a required service. Of course, an employer who provides no employee benefits to spouses is not required to provide benefits to domestic partners in order to do business with the city. __San Francisco Chronicle__, Nov. 5 & 9. The __Capital Times__ of Madison, Wisconsin, reported Nov. 5 that a gay organization at the University of Wisconsin had negotiated with a private company, Student Insurance Division, to provide insurance with domestic partnership eligibility for students. The newspaper reported that the University Health Services, which had sought to provide such coverage initially, backed down in Aug. 1994 after the state insurance commissioner challenged UHS's definition of domestic partnership eligibility. In addition to providing domestic partnership coverage, the private plan actually costs less than the University Health Insurance Plan! West Contra Costa Unified School District agreed during contract negotiations with the unions representing its employees to extend insurance coverage to domestic partners of employees. Then the district got cold feet and refused to extend the coverage. Arbitrator Martin Henner ordered that the school district live up to its agreement, in the first published labor arbitration decision we have seen concerning domestic partnership benefits. __United Teachers of Richmond and West Contra Costa Unified School District__, 96-2 ARB para. 6348. According to Internet postings, two more high tech companies have announced domestic partnership benefits plans effective January 1, 1997: Centigram and Qualcomm. The Boston Globe (Nov. 23) reported a survey by Towers Perrin, benefit consultants, showing that seven percent of "large U.S. companies" now provide domestic partnership coverage for medical or dental benefits to partners of gay or lesbian employees. A principal of Towers Perrin, Paul Matthews, pointed out that such benefits "were unheard of 10 or 15 years ago," but that his company expects "that these benefits will only grow in popularity as more companies see them as a way to attract and retain valuable employees." A.S.L. Virginia Appeals Court Upholds Divorce Decree Against Gay Husband for "Cruelty" Writing for the Court of Appeals of Virginia, Judge Willis held that the trial court did not err in granting a divorce on the ground of cruelty premised on the homosexual "coming out" activities of a gay husband. __Thomas v. Thomas__, 1996 WL 679985 (Nov. 26) (not officially published). Henry and Marian Thomas were married in 1964, and had two sons. Henry is now unemployed. Throughout the marriage, Henry kept their finances separate. He paid the mortgage, real estate taxes, insurance and utilities, but sometimes fell behind on his obligations. Marian, who is employed by the Society for the Prevention of Blindness, paid all other expenses, maintained the family home (including paying for repairs and renovations), and entertained business guests of Henry. In November 1993, Henry moved out, after a period of ten years during which Henry and Marian had ceased to have a sexual relationship. The last time they had sex, Henry "told his wife that he fantasized about being homosexual and that she was the only one who could `save' him. She later found a register from a bed and breakfast establishment that caters to homosexuals, revealing that her husband had spent a weekend there with another man. She also found correspondence that he had received through a homosexual pen pal club, along with homosexual pornographic videos and paraphernalia." Marian sued for divorce, specifying cruelty and constructive desertion as grounds, specifically alleging Henry's homosexuality. In response to requests for admissions, Henry admitted that he was gay. Ultimately, the court granted Marian's divorce, premised on cruelty. (There are other issues in the appeal concerning terms of the divorce that are not discussed in this report.) Henry claimed on appeal that there was no evidence that his homosexual activity amounted to cruelty to Marian, and further asserted that she had "condoned" his homosexual behavior. The court rejected these arguments: "The evidence established that Mr. Thomas admitted under oath that he was homosexual, that he spent at least one weekend with another man, that he received correspondence from homosexual men through a homosexual pen pal club, and that he confessed his homosexuality to his children and colleagues. He assaulted Ms. Thomas during a confrontation over his homosexual conduct. The trial court did not err in allowing Ms. Thomas to produce this evidence because she specifically pleaded it in her bill of complaint for divorce. The trial court properly awarded Ms. Thomas a divorce on the ground of cruelty. The trial court did not err in finding that Ms. Thomas had not condoned her husband's homosexuality. "Knowledge of the misconduct is necessary before condonation may occur." __Hollis v. Hollis__, 16 Va.App. 74, 77, 427 S.E.2d 233, 235 (1993). The evidence showed that at the time the parties had sexual relations, Ms. Thomas believed Mr. Thomas' homosexuality was a fantasy. When she discovered that it truly existed, she terminated marital relations.__ A.S.L. Federal Court Orders Discovery on Securities Arbitration Agreement in Case Brought by Gay Employee A federal district court rejected defendants' motion to compel arbitration in a suit brought by a securities industry employee under the federal, state and city anti-discrimination statutes. In __Berger v. Cantor Fitzgerald Securities__, 1996 WL 640888 (S.D.N.Y. Nov. 4), U.S. District Judge Shira Scheindlin ordered the parties to commence discovery on plaintiff's claim that the defendants used misrepresentation, high pressure tactics and unfair dealing to compel plaintiff to sign an agreement to arbitrate. Brian Berger started work at Cantor Fitzgerald Securities (Cantor) in October 1991 as a clerk. In January 1994, Berger was promoted to work as assistant to broker Michelle Digiaro. In September 1994, Digiaro entered into a conversation with two other brokers in which they made several homophobic remarks about Berger. After Berger overheard the conversation he complained to a Senior Managing Director at Cantor. Berger alleges he was branded a "snitch" and a "rat" by Digiaro and others. As a result, Berger claims he was treated like a pariah. Cantor fired Berger in March 1995, charging him with excessive lateness and poor performance. To support its motion to compel arbitration, Cantor asserted that Berger was bound by the U-4 form which he signed in November 1993. The U-4 contains an arbitration clause specifying that any dispute between the plaintiff and his employer arising from the plaintiff's employment must be submitted to mandatory arbitration according to the rules of the National Association of Security Dealers (NASD). Berger maintains that at the time he was required to sign the U-4, he was not given the NASD manual and therefore did not understand the content and scope of the arbitration clause. As a result, Berger insists that the clause in unenforceable because he signed the form as a result of misrepresentation, high pressure tactics and unfair dealing. Because Berger claimed that the agreement to arbitrate was fraudulently procured or otherwise unenforceable, the Judge Sheindlin held that the court rather than an arbitrator must decide the issue of arbitrability. She mandated discovery to clarify several contested issues of fact including: at the time of signing the U-4, an unnamed woman told Berger that the form was an application to take a test to become a NASD-registered broker; that he was given no more than five minutes to complete the form; and that he was never given a copy of the NASD Manual referred to in the arbitration clause of the agreement. Berger alleges that because Cantor did not give him a copy of the NASD Manual, he was not provided with notice that he was waiving his right to have his employment discrimination claims heard in federal court. C.W. Florida Judge Tosses Anti-Gay Charter Amendment Applying last spring's Supreme Court decision in __Romer v. Evans__, 116 S.Ct. 1620 (1996), Alachua County, Florida, Circuit Judge Frederick D. Smith ruled Nov. 22 in __Morris v. Hill__ that a ballot measure similar to Colorado's Amendment 2 that was enacted by county voters in 1994 violates the federal Equal Protection Clause. Judge Smith found that the county amendment, known as Amendment 1, "suffers the same constitutional infirmities" as Colorado Amendment 2. "Amendment 1's focus on sexual orientation cannot be explained on any rational basis other than as a manifestation of the majority's condemnation of homosexuality and bisexuality," wrote Smith. Although this invalidation of Amendment 1 does not automatically revive the county gay rights ordinance that was repealed as part of Amendment 1's passage, it clears the way for the county commissioners to re-enact the ordinance. __Palm Beach Post__, Nov. 24. Representing the challengers of Amendment 1 were Lambda cooperating attorneys Larry Turner and Robert Griscti from Gainesville, and Walter Reiman, Jacqueline Charlesworth and Jamie Shapiro of New York's Paul, Weiss, Rifkind, Wharton & Garrison. Lambda staff attorney Suzanne Goldberg argued against the amendment on behalf of the plaintiffs at a court hearing on Nov. 15. A.S.L. Mistrial In Georgia Rape Trial; Victim's Lesbian Status A Difficult Issue The __Atlanta Journal-Constitution__ (Nov. 28) reported that the victim's sexual orientation became a complex issue in the recent trial of Dekalb, Georgia, police officer Steven L. Goble for rape before Superior Court Judge Gail Flake. __People v. Goble__. The victim was out on a date with her girlfriend prior to the alleged rape. The prosecution wanted to introduce evidence that the victim was a lesbian, to negate the defense's contention that the sex was consensual. The defense objected, pointing out that under Georgia's rape shield law, it would not be able to cross- examine the victim as to her past sexual history to try to establish that she might have had sex with a man in the past, thus leaving open the possibility for the jury to speculate that she could have consented on this occasion. Judge Flake ruled that the victim could not be asked directly whether she was a lesbian, but she could testify that prior to the rape she was on a date with her girlfriend, as this was relevant to her state of mind. Also, the victim's sister, questioned about why she believed her sister's story, testified: "I believe her. And we both know (she) did not want to have sex with a man." The defense promptly moved for a mistrial after this testimony, but Judge Flake denied the motion, ruling that it was a legitimate response to the question posed. The defense introduced a tape of the victim's statement to police, which included the following statement: "I think part of what provoked him is that he perceived Colleen and I as a couple, that we were lesbians." The defense attorney justified introduction of the tape by contending it showed that the police were coaching the victim through her statement and suggesting things to her. The jury deliberated five days before announcing it was hopelessly deadlocked. The district attorney's office announced it would retry the case. A.S.L. Gay Salvadoran Granted U.S. Asylum Roberto Palomo, a gay man from El Salvador who works at Newark International Airport, became the 40th foreign national to win U.S. asylum on the basis of fear of persecution due to his sexual orientation, according to a report in the __Record__, a Northern New Jersey newspaper, on Nov. 27. Palomo left El Salvador in 1989, "shortly after soldiers forced him off a bus, made fun of his homosexuality, repeatedly raped him, and left him for dead," according to the news story. Palomo, who had been living in the U.S. under temporary legal immigration status granted to Salvadoran refugees, was granted asylum after presenting the story of his life and struggles to Immigration & Naturalization officials in Lyndhurst. Reflecting the reluctance of many immigrants from South America to discuss their sexuality with government officials, Palomo did not agree to present an asylum claim until after hours of persuasion by volunteers from the American Friends Service Committee. He is not "out" to most of his family back in El Salvador. A.S.L. Louisiana Appeals Court Affirms Conviction of Lesbians Who Collaborated on Murder of One's Husband Defendants Jeanne Foret and Rosetta Jones appealed their convictions of second degree murder in the shooting death of Jones's husband in __State v. Foret__, 1996 WL 658871 (La.App., 5 Cir, Nov. 14). Judge Bowes wrote a lengthy and factually detailed opinion. Defendants first contended that the trial court mistakenly denied their motions to suppress their confessions. According to the evidence, Jones, who was initially not a suspect, was questioned on several occasions by the police. In the course of her third statement, she implicated Foret in the murder of her husband by stating that Foret had made negative comments about her husband, that she had expressed "feelings" toward Mrs. Jones, and that the two women had had sex on two or three occasions. It was in the course of her fourth interview, in which she told a version of the night of the murder which included Foret appearing at the house, Jones begging her to leave, and Foret saying she was going to "take care" of Mr. Jones, that Jones herself became a suspect. Prior to the change in her status, she claimed that Foret told her that she could get her husband out of the picture and could do a better job taking care of her and the children. Because the questioning officer found that several things she claimed did not make sense, she was advised of her rights. She signed a form indicating her understanding of her rights and her wish to waive them. She then talked about her husband's abusiveness and also that the women had talked about "the actual thing" a couple of times prior to the shooting. Prior to Jones becoming a suspect, but after Foret was made a suspect, the police asked for Jones's help in finding Foret. Jones, while at the police station, telephoned Foret while knowingly wired, and asked, among other things, why Foret had killed Mr. Jones. Foret's answer was, "I have no idea...I guess I'm nuts." She also stated that she was not at the house on that night. Foret was subsequently found and arrested. The record shows that at the time of her arrest, Foret was advised of her rights and that she signed several forms over the course of a few days indicating that she understood her rights and wished to waive them. At one point she was also asked whether she wanted to talk about the incident without the presence of an attorney and she said she would. She signed another waiver of rights form the day after her arrest; her first taped statement included the following information: she and Jones were lovers for approximately six months but Jones had ended the relationship. She loved Jones and did not like her husband because of his treatment of his wife and children. Her second statement, made the following day after signing another waiver of rights form, reported that the two women had not seen each other for at least nine months prior to the murder, but that the month before the murder, Jones had contacted her to ask if she knew of anyone who could "make her a widow." Foret said that Jones asked her to run her husband over with her car, but Foret said she could not do that. When Jones found out that Foret had bought a gun, she asked her to shoot her husband and persisted in this request, telling her stories of Mr. Jones' abuse of her and the children. Foret stated that twice she started to carry out a murder but it was only when Jones promised Foret that with Mr. Jones out of the way the two women could be together and that there would be insurance money to help, did Foret follow through. According to Foret, she went into the bedroom with Jones' permission but panicked when Mr. Jones opened his eyes, shooting him once and then, thinking she had seen him get up, shooting him twice more. She claimed she did not intentionally kill him. Under Louisiana law, before a confession or inculpatory statement can be introduced into evidence, the state must prove beyond a reasonable doubt that the statement was free and voluntary and not made under fear, duress, or promises. If the statement was elicited during custodial interrogation, the state must also show that the defendant was advised of her Miranda rights. Custodial interrogation includes situations where the accused is questioned by police in a setting which indicates that she has been deprived of her freedom of action in a significant way, although falling short of an actual arrest. Spontaneous and voluntary statements are admissible in the absence of Miranda warnings even if the accused is in custody. Given the evidence, Judge Bowes found that Mrs. Jones gave several statements prior to being made a suspect and prior to being deprived of her freedom in any way, and that as soon as she became a suspect she was given Miranda rights. Similarly, Foret was also found to have been fully advised of her rights prior to all her statements and that she freely and voluntarily waived those rights. In addition, the taped conversation between Jones and Foret conducted prior to either woman being under arrest or in confinement was found to have been made by Jones of her own free will and recorded with her knowledge. Judge Bowes agreed with the trial court that the conversation was not subject to suppression as neither defendant was in custody nor did either give new, and thus inculpatory, information. Further, the "fruit from the poisonous tree" theory was not applicable, as no new information was obtained from this conversation. The defendants also claimed that the trial court erred in denying their motions to sever the trials. The appellate court noted that the mere fact that one defendant points a finger at another does not make defenses automatically antagonistic unless there is actual prejudice shown. Because Foret admitted to the shooting, the questions at trial included the degree of each defendant's participation, whether Jones knew of Foret's plan and discussed it with her, and whether she actually aided and planned the murder with Foret; severance was thus not needed in this situation. Jones, whose multiple statements were introduced at trial, did not testify; she asserted that thus Foret did not have the opportunity to cross-examine her, violating the Sixth Amendment pursuant to __Bruton v. United States__, 391 U.S. 123 (1968). However, Judge Bowes noted that __Bruton__ was inapplicable since Jones, who raised the issue, was not denied her right to cross-examine Foret, who did testify at trial. Jones also claimed as error the trial court's allowing evidence of prior bad acts involving the solicitations to murder her prior husband. At trial, evidence was presented concerning Mrs. Jones' requests both of her son to kill and burn a former husband and of her daughter to give that same husband an overdose of LSD. The state argued that the purpose of the evidence was to show her intent as well as showing plan, motive, system, and absence of mistake. Because the prior acts were similar to the current act, and there was a real and genuine contested issue of intent, and the probative value outweighed the prejudicial effect, by Louisiana's rules of evidence the requirements were met to allow introduction of evidence of the other crimes. Although the convictions were affirmed, the case was remanded because it was found that the trial court had failed to follow statutory provisions for advising the convicted offenders concerning both possible diminution of their sentences for good behavior and concerning parole. J.H. Kentucky Appeals Court Upholds Reprimand of Teacher for Gossiping About Sexual Orientation of Administrators The __Kentucky Post__ (Nov. 9) reported that a panel of the Kentucky Court of Appeals ruled in __Gayheart v. Burns__ that the Owen County Board of Education did not violate the First Amendment rights of a teacher who was formally reprimanded after she failed to comply with warnings against continuing to spread "gossip and slander" concerning the sexual orientation of the superintendent and three other school administrators, who she charged were lesbians. The decision does not seem to be officially reported. A.S.L. Pennsylvania District Court Finds Same-Sex Harassment Actionable Under Title VII Same-gender harassment is cognizable under Title VII, according to the U.S. District Court for the Eastern District of Pennsylvania. __Wiley v. Burger King__, 1996 WL 648455 (Nov. 8). Noting the split among the federal circuit courts as to whether same-gender harassment supports a Title VII claim, the court opted to follow other District Court cases and declined to dismiss the action. In a footnote, the court cast doubt on whether plaintiff Wiley would ultimately prevail on his constructive discharge claim, noting that the plaintiff did not allege that he had reported the harassment, making it difficult for him to impute the harasser's conduct to the defendant. D.W. Wisconsin District Court Finds Same-Sex Harassment Actionable, But Interestingly Limits Application Chief Judge Stadtmueller of the U.S. District Court for the Eastern District of Wisconsin ruled in __Miller v. Vesta, Inc.__, 1996 WL 683725 (Nov. 22), that same-sex harassment is actionable under Title VII in a hostile environment case, but that the homosexual character of particular harassment does not automatically justify a finding of hostile environment. In a lengthy analysis of the developing caselaw, Stadtmueller concluded that the weight of authority is now in favor of recognizing such claims, and that to do so would be consistent with dicta from a 7th Circuit decision. Stadtmueller specifically stated agreement with a recent decision by another judge of the E.D. of Wisconsin in __Johnson v. Hondo, Inc.__, 1996 WL 531937. However, reviewing the factual findings of the magistrate, who recommended granting summary judgment to the defendant, Stadtmueller also agreed that on the merits the plaintiff's claim had to fail. The plaintiff, a heterosexual woman, complained that there was a "repugnant homosexual environment" in the workplace, based primarily on some discrete sexual advances to her by a lesbian co- worker. The court found that these advances were not sufficiently frequent or severe to create a hostile environment, especially in light of management's prompt action to discourage the co-worker from continuing them. "The general issue is whether Miller may also rely upon the harassment's homosexual character to contend there was a hostile environment. The first, and easier question, is: does homosexual harassment always create a hostile environment as a matter of law? The court holds that it does not. Title VII is aimed at all sexual harassment, which is by definition unwelcome. The statute and case law do not say that some types of sexual conduct are per se unwelcome in a hostile environment case. Instead, the case law requires a case-by-case approach in which the courts look at the totality of the circumstances and focus on the intensity, intimidation, frequency and interference. "Moreover, it is settled that Title VII's protection on account of `sex' does not offer protection on the basis of sexual orientation, but on the basis of gender. . . For this reason, the statute does not confer absolute protection upon Miller as a married heterosexual allegedly harassed by a lesbian. To hold that homosexual harassment of heterosexuals automatically creates a hostile environment in violation of Title VII would grant protection based upon a plaintiff's sexual orientation. However, heterosexuality, as a sexual orientation, is simply not a protected characteristic under Title VII." Stadtmueller followed this up with a lengthy discussion of whether the sexual orientation of the harasser should have anything to do with determining whether the harassment claim is valid, and concluded it should not, applying the same logic. "Title VII does not insulate employees from all sexual interplay," Stadtmueller declared, "whether it be heterosexual or homosexual, and there is no reasonable expectation of total freedom from sexual incidents in the workplace. The events at Vesta did not create an environment that a reasonable person would perceive as hostile." A.S.L. Thus, while agreeing with the magistrate to deny the defendant's motion to dismiss for failure to state a claim, Stadtmueller granted summary judgment in favor of the defendant on the sexual harassment claim. A.S.L. New York Appellate Division Rules on NAMBLA Case In a cryptic decision, a panel of the N.Y. Appellate Division, First Department, has revived a petition by the Attorney General concerning an organization named "Zymurgy," claimed to be a corporation formed to raise tax-deductible donations for projects undertaken by the North American Man-Boy Love Association (NAMBLA). It is difficult to piece together exactly what happened from this terse per curiam opinion. It appears that the legislature has dissolved Zymurgy's corporate status, but the court nonetheless thinks the Attorney General's petition is not moot on the issue of disclosure of what Zymurgy was doing, and potential liability of NAMBLA for violations of various state laws, including a law on child pornography that may have been violated by a newsletter allegedly published under the auspices of Zymurgy containing pictures of young men whose ages might fall within the range of the statute. __People v. Zymurgy, Inc.__, NYLJ, Nov. 18, p. 27, col. 4. A.S.L. Schmitz Sentenced in Amedure Murder Case Jonathan Schmitz, the convicted murderer of Scott Amedure, a gay man who confessed to having a crush on Schmitz during the taping of a television talk show that was not subsequently broadcast, has been sentenced to 25 to 50 years in prison for the murder by Michigan trial judge Francis X. O'Brien, who added two more years for using a firearm to commit a felony. Schmitz faced a potential life sentence, but his attorneys contended that he deserved lenient treatment "given all the circumstances in this case," including his expressed remorse about his action and his history of alcoholism, depression and a thyroid condition. Jurors in the case told reporters that "they believed the defendant already had mental problems that the show exacerbated." __New York Times__, Dec. 5. A.S.L. Scondras Sexual Assault Prosecution Dropped Openly gay former Boston City Council Member David Scondras will not be prosecuted for allegedly making a sexual advance to a 16- year old boy in a movie theater. Prosecutors announced that the boy and his family have decided not to cooperate and offer testimony, so that case cannot be presented. The incident came to light when Scondras reported to police that he had been pummelled and kicked by the boy, producing a broken nose, a broken jaw and three lost teeth. Scondras charged anti-gay bias assault, but after talking with the boy police charged Scondras with indecent sexual assault. Scondras charges anti-gay bias by the police and prosecutor. Scondras, an attorney, is president of the Search for a Cure Foundation, a non-profit AIDS organization. __Boston Globe__, Dec. 5. A.S.L. Federal Judge Says Objecting Students Entitled to Refund of Activity Fees Used for Controversial Student Organizations The __Wisconsin State Journal__ reported Nov. 30 that U.S. District Judge John Shabaz has ruled in favor of three "devout Christian students" who objected to the use of compulsory student fees at the University of Wisconsin to fund certain students groups and programs to which they object, including the Lesbian, Gay and Bisexual Campus Center. Judge Shabaz held that distribution of mandatory student fees to such groups violated objecting students' constitutional rights, even though the distribution of such fees is made in a "viewpoint neutral" way. "This court finds that the balance between the competing interests in this case tips in favor of plaintiffs' First amendment rights not to be compelled to speak or associate." Less than 10 percent of student fees go to student organizations. Shabaz held that the school would have to devise a mechanism to allow objecting students to opt out of having their fees support personally objectionable groups, a prospect that Associate Dean of Students Roger Howard told the __Journal__ was a "practical impossibility." At press time, it was not known whether the university would appeal. The lawsuit was funded by the Alliance Defense Fund, a conservative Christian group based in Phoenix, Arizona. One suspects they will attempt to replicate their success at other state university campuses. The decision in __Southworth v. University of Wisconsin__ had not yet appeared on electronic databases at press time. A.S.L. San Francisco Municipal Court Judge Julie Tang has ordered two Contra Costa County men convicted of hate crimes against a gay man to write letters of apology to their victim and to the city's gay community. The letters will be published in the __Bay Area Reporter__. The idea for this novel penalty came from prosecutor Chris Clifford. In addition to the literary requirements, defendants John Cody Lee and Jonathan Bell have been sentenced to several months in the county jail for beating up a man outside a gay bar. "This hate crime wasn't just against the man they beat up - this crime was directed at an entire community," said Clifford. "This is a city where diversity is not just accepted or tolerated, it's celebrated. . . I think it's appropriate that they apologize to San Francisco." __San Francisco Examiner__, Nov. 9. A.S.L. Election Notes President Clinton's election victory on Nov. 5 was accompanied by the election of the first openly-gay statewide official, Democrat Ed Flanagan as Vermont State Auditor. (Flanagan had previously been elected while not openly gay.) The Gay and Lesbian Victory Fund reported that 21 of its 32 endorsed openly gay candidates had won election, mostly to state legislative and judicial positions. The __Washington Blade__ reported Nov. 15 that at least 44 openly lesbian or gay candidates had won election, and that all openly-gay incumbents who stood for re-election were victorious. In the new legislative season ahead, there will be openly lesbian or gay representatives serving in the U.S. House of Representatives (Barney Frank, D-Mass., and Jim Kolbe, D-Ariz.) and fifteen state legislatures. The most openly anti-gay member of the House of Representatives, Rep. Bob Dornan of California, was narrowly defeated by a pro-gay Latina from Orange County. The most openly anti-gay member of the Senate, Jesse Helms of North Carolina, was re-elected. In San Francisco, a heated municipal court race between gay candidates was won by Kensia "Kay" Tsenin, who defeated Matthew Rothschild by a margin of 59 percent to 41 percent. Rothschild, a former city Democratic party official, had the heavy organizational endorsements, but Tsenin was more highly rated by the bar association for her qualifications. __San Francisco Examiner__, Nov. 6. A.S.L. Law & Society Notes New figures released by the National Opinion Research Center at the University of Chicago show that the percentage of the general population in the U.S. that believes homosexual relations are "always wrong" declined from 76 percent to 61 percent during the period 1991 to 1996, following what was described as "a long period of consistent and stable disapproval." A University researcher, Stuart Michaels, suggested that the AIDS epidemic is partly responsible for helping to create more tolerance for homosexuality. Said Michaels: "AIDS brought homosexuality more and more into the public eye and provided people with a multiplicity of views on gay life and gay people. One side of this is that AIDS evokes compassion, because in the process of learning who has AIDS, we learn that people with AIDS have lovers, mothers and fathers, and some have children." Michaels also noted that AIDS has "forced the gay community to take on new forms of organization which have encouraged people to come out of the closet, which has meant that suddenly people see that their friends and other people they know are gay. As more and more people come to know people who are gay, they begin to give up their old stereotypes and become more tolerant." __Washington Post__, Nov. 17. The Federal Bureau of Investigation released its annual report on hate crimes on Nov. 4. Nearly 8,000 incidents were reported to the FBI by local law enforcement authorities, of which 13 percent (1,019) were classified as sexual orientation bias incidents. Because such reporting is voluntary on the part of victims and law enforcement agencies, it is widely believed that these "official" numbers significantly underreport the actual incidents. (The largest category was racially-motivated bias crimes, constituting 61 percent of reported incidents.) __Washington Post__, Nov. 5; __Washington Blade__, Nov. 15. * * * In an unrelated story, FBI Director Louis Freeh announced in a Nov. 6 memo to all FBI employees that the Department of Justice, of which the Bureau is a part, has formalized the prohibition against discrimination on the basis of sexual orientation within the agency. The formalization consists of adding the non-discrimination to the official regulations of the agency published in the Code of Federal Regulations. __Washington Blade__, Nov. 29. Officials at Ford Motor Company and Chrysler Corporation indicated that their non-discrimination policies were being modified to specify a ban on sexual orientation discrimination by the companies. The major automobile manufacturers have previously been resistant to adopting formal policies, while claiming that they do not tolerate discrimination. Chrysler CEO Robert Eaton sent a letter to all company employees on Nov. 11 stating that "Chrysler does not tolerate harassment or discrimination of any employee on any basis, including sexual orientation." A Ford spokesperson announced Nov. 14 that Ford would also amend its policy to mention sexual orientation, characterizing this as a "trend" that companies are now following. Chrysler's action followed an announcement by a group of gay employee's that they would hold a national day of protest against the auto-maker's prior refusal to adopt such a policy. __Washington Blade__, Nov. 15 & 22. Voters in Lansing, Michigan, narrowly rejected ballot proposals that would have amended the city's fair housing law to ban sexual orientation discrimination. __Detroit Free Press__, Nov. 7. Illinois Governor Jim Edgar (R.) issued an administrative order banning discrimination based on sexual orientation in all state agencies. Illinois activists noted that Edgar signed into law a bill banning recognition of same-sex marriage last spring, and characterized the new order as "hypocritical." According to a spokesperson for Edgar, the action was an administrative order rather than an executive order because in Illinois executive orders require legislative approval, which would be uncertain for this measure. The Associated Press reported that Sean McBride, a gay man who was paralyzed in a gay-bashing attack as a security guard in his Detroit apartment house lobby looked on and did nothing, won a $10 million judgment against Pinkerton's Security and Investigation, the guard's employer. Two of the attackers were caught and prosecuted; one was convicted of assault and firearms charges and sentenced to up to four years in prison, while the other, a juvenile, pleaded no contest to assault charges and will be in custody until age 21. A third attacker was never apprehended. __St. Louis Post Dispatch__, Nov. 23. The Associated Press reported that Massachusetts Attorney General Scott Harshbarger has obtained an injunction against Steven Berlo, a Chelsea, Mass., resident, who allegedly assaulted a man outside a gay bar. The injunction prohibits Berlo from assaulting any person because of their sexual orientation, and prohibits him from coming within 500 feet of the alleged victim, his friends or their workplaces, or within 100 feet of the bar. __Boston Globe__, Nov. 20. The Appellate Court of Illinois rejected constitutional challenges to the state's hate crimes statute in __People v. Nitz__, 1996 WL 663760 (Nov. 15). The statute creates a distinct offense of hate crime, and includes sexual orientation among the classifications to which the offense applies. This case did not involve an anti-gay bias incident. The San Francisco Police Commission voted Dec. 4 to approve a tentative settlement of a pending lawsuit by lesbians and gay men who were arrested during a police raid during a 1995 New Year's Day AIDS benefit event. The settlement, which will amount to nearly $150,000, also requires sensitivity training on lesbian and gay issues for San Francisco police officers and new procedures to deal with alcohol-connected arrests. Attorney Nancy Clarence represents the plaintiffs. __San Francisco Chronicle__, Dec. 5. One of the earliest non-gay advocates of gay rights passed away Nov. 18: Dr. Evelyn Hooker, whose ground-breaking psychological study of gay men during the 1950s led to the first publication arguing that homosexuality was a normal variant of human sexuality rather than a form of disfunction. Hooker's work was crucial in the efforts to get the American medical establishment to revise its views about the nature of homosexuality, helping to lay the foundation for subsequent law reform and social change. Hooker, who was recently the subject of a video documentary biography, was 89. A.S.L. International Notes The South African Constitution, which includes a ban on sexual orientation discrimination, has finally been approved by the constitutional court and was expected to be signed into effect by President Nelson Mandela early in December. South Africa is the world's first county to ban sexual orientation discrimination through a constitutional provision, all prior such bans having been achieved through simple legislation. __New York Times__, Dec. 5. Several law reform proposals aimed at advancing lesbian/gay rights in Austria were voted upon in the Lower Chamber of the Parliament on Nov. 27. One measure would have equalized the age of consent for homosexual sex, as to which there is a four year disparity between gay men and all others (lesbians and heterosexuals are both set at 14), but was defeated on a tie vote. The other two measures, which passed, would end a ban on the publication of positive information about homosexuality and a ban on funding of lesbian and gay organizations. The successful measures still need approval from the Upper Chamber, where right wing parties are in the majority. The Austrian gay rights proponents are still hopeful, however, because they are part of a larger penal law reform package which has considerable support. Summarized from a message posted to the International Lesbian and Gay Association Mailing List by Kurt Krickler, Secretary General of HOSI Wien, a lesbian/gay rights organization. Rex Wockner reported in his international gay news bulletin that Norwegian Prime Minister Thorbjoern Jagland has appointed an openly lesbian writer, Ann Holt, to be the nation's new minister of justice and immigration. The Federal Court in Australia has ruled that the Australian Defence Forces may not discriminate on the basis of HIV status, finding that the ADF had unlawfully discharged a soldier upon learning of his status. Justice Cooper wrote for the court that the ADF was subject to the same anti-discrimination policies as the rest of the nation, according to an abstract from the __Sydney Star Observer__ posted to the Internet. The New South Wales, Australia, Attorney General has issued a report titled "Review of the Homosexual Advance Defence," which recommends that judges read statements to juries condemning homophobia and informing them that homosexual advances and heterosexual advances should be treated the same for purposes of determining issues such as provocation, self-defense, etc. A magistrate has dismissed charges that John Holloway, former Australian ambassador to Cambodia, was guilty of having sex with underage boys in that country in violation of the Child Sex Tourism Act of 1994. The magistrate found the evidence "for all practical purposes worthless." Holloway has charged that he was framed by anti-gay political opponents in the government. The second chamber of the Netherlands parliament has approved a proposal for a domestic partnership registration scheme that would grant same-sex couples many of the rights of married couples. However, a commission to study the issue of same-sex marriage in the Netherlands is scheduled to report with recommendations to the parliament next year, which may make this action moot. This information was posted to the Internet by the coordinator of the Dutch chapter of the Lesbian and Gay Immigration Rights Task Force. The Council of Europe's Commission on Human Rights has agreed to investigate a challenge to the refusal of Sweden to grant asylum to a gay man from Iran. The Swedish government has been asked to submit a report on the case by January 10, with a statement from the Commission expected this spring. According to an internet posting from a gay rights activist in Sweden, two lesbians and two gay men from Iran have petitioned for asylum and been denied by the Swedish government, which has incredibly included that they do not necessarily face a threat to their lives if they return to Iran. Iran punished homosexuality with death. A.S.L. Professional Notes For the second time, a president of New York's Lesbian and Gay Law Association has been elected to public office. Paul Feinman, whose term as president will conclude shortly, was elected on Nov. 5 to the New York City Civil Court. Former LeGaL President Aubrey Lees was elected last year as a Democratic District Leader in Greenwich Village. What was particularly significant about Paul's election was that the __New York Times__ endorsement of him in the Democratic primary singled out his presidency of LeGaL as a credential for supporting him. Lesbian attorney Sheila Kuehl has achieved another historic first, becoming the first woman and first open lesbian to achieve the post of speaker pro tem of the California State Assembly. This has traditionally been an elective post that Kuehl would have received as the runner-up candidate for the speaker position; to avoid putting conservative Democrats in the new assembly majority in an awkward position with their constituencies, the Democratic caucus voted to change the speaker pro tem position to an appointive post, and new speaker Cruz Bustamante promptly appointed Kuehl, who was also the first openly lesbian or gay person to be elected to California's legislature. __Sacramento Bee__, Dec. 5. The National Task Force on AIDS Prevention is seeking candidates for the position of Executive Director. NTFAP is a San Francisco- based AIDS education and advocacy agency with a multicultural focus. The E.D. will report to a national board of directors and be the organization's chief executive officer with responsibility for management, development, finances, administration and programming. Interested candidates should send a resume and an extensive cover letter explaining their interest, qualifications, and salary requirements, to: National Task Force on AIDS Prevention, c/o Steve Wakefield, Board Secretary, 1948 W. Evergreen, Chicago, IL 60622-1932. For additional information, contact Lawrence "Carrie" Farrell, 617-522-1267, or e-mail sfwNTFAP@aol.com. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS Will the Breakthrough in AIDS Treatments End Protection Under ADA for Those Who Benefit? The frightening possibility that protection against discrimination in employment and public services for people with HIV/AIDS under the Americans With Disabilities Act may be endangered by the new generation of AIDS treatments is suggested by a federal district court decision reported in the Nov. 18 issue of BNA's __Daily Labor Report__, __Murphy v. United Parcel Service__, DLR No. 222, p. A-5. In this decision, not available on Westlaw or Lexis at press time, U.S. District Judge Sam Crow (D. Kans.) ruled that a medical condition that can be controlled with medication is not a "disability" under the ADA. According to the BNA report, Crow's decision joins "other courts' rejection of Equal Employment Opportunity Commission guidance on the impact of medication on a disability claim." In this case, Vaughn L. Murphy claimed unlawful disability discrimination when United Parcel Service fired him from a mechanic's job due to high blood pressure. UPS mechanics are required to do a certain amount of driving of the vehicles they service, so they are required to have a commercial driver's license, which requires passing a physical exam specified by the U.S. Department of Transportation (DOT). Murphy was mistakenly issued the certification despite his untreated high blood pressure, but was discharged when the mistake was discovered. He does not use medication because of problems with side effects. Judge Crow found that UPS could rely on the DOT health requirements for a commercial driver's license as a complete defense, but also dealt with Murphy's contention that his unmedicated high blood pressure constituted a disability. Murphy's claim is based on 29 C.F.R. sec. 1630.2(j), which states that a determination of disability should be made "without regard to mitigating measures such as medicines, or assistive or prosthetic devices." The guidance gives as an example: "a diabetic who without insulin would lapse into a coma would be substantially limited because the individual cannot perform major life activities without the aid of medication." Crow expressly joined other courts that have rejected this portion of the guidelines, citing decisions in the Western District of Oklahoma, the Northern District of Texas, and the 5th Circuit. Crow additionally noted that there is some doubt whether high blood pressure, even in its untreated state, would constitute a disability within the meaning of ADA. New AIDS medications apparently reduce the presence of HIV to undetectable levels and appear to stimulate T-4 counts approaching the normal range in a high percentage of those who take them. Anecdotal reports indicate startling recovery of good health among some HIV-infected individuals who have been taking this new class of drugs over the past year, although it is uncertain how long the new combination of drugs will be effective. Given the logic of __Murphy__ and cases cited therein, respondents might contend in ADA and Rehabilitation Act cases that HIV-infection has become a controllable condition that should no longer be considered a disability in the absence of the kinds of medical complications characteristic of end-stage AIDS. This would seem contrary to comments in the legislative history indicating Congress's intention to provide protection to people with HIV, but federal courts have already been grappling for a rationale for finding asymptomatic HIV-infected persons to be covered. Some have seized upon limitations on reproductive sex for HIV-infected people, although there is disagreement among courts as to whether engaging in reproductive sex is the type of "major life activity" meant to be included in the definition of disability under the statute. (A pending First Circuit appeal in __Abbott v. Bragdon__, 893 F.Supp. 99 (D.Me. 1995), argued last month, may cast more light on this issue.) Some courts have focused primarily on whether an alleged disability affects the individual's ability to perform work; however, it should be noted that negative employer responses to a particular medical condition may have more to do with employer perceptions that the presence of an infected person may affect the morale of co-workers, scare off customers, or impose financial burdens for medical coverage on the business. It is of course noteworthy that the new generation of AIDS medications is very expensive. Ironically, the success of new AIDS treatments may spell the end of legal protection for PWA's under existing disability discrimination laws, especially if courts reject the alternative of finding ADA coverage on the basis that PWA's are perceived by others as having a physical disability. Judge Crow rejected such an alternative approach in __Murphy__. A.S.L. HIV-Infected SSI Applicant Wins New Hearing on Benefits Claim Rejecting an automatic reliance on an inflexible "grid" system for determining disability benefits eligibility under the Social Security Act, U.S. District Judge Miriam Cederbaum ruled in __McKinzie v. Chater__, 1996 WL 684169 (S.D.N.Y., Nov. 25) (not officially published), that applicant Walter T. McKinzie was entitled to an individualized determination whether his physical and mental problems rendered him "disabled" within the meaning of the statute. Incredibly, the administrative law judge in this case found that "the medical evidence established that the claimant has the HIV virus, gout, hypothyroidism, arthritis, headaches, gastritis, reflex esophagitis, obesity, and a history of drug and alcohol abuse in remission, but that he does not have an impairment or impairments listed in Appendix 1, Subpart P, Regulations No. 4." The ALJ also found that McKinzie "is unable to perform his past relevant work as a home health aid." Under SSI procedures, when a claimant has shown severe impairment, as McKinzie clearly did, the burden shifts to the Commissioner of Social Security to prove that there is work that the claimant can perform. In this case, the Commissioner relied solely on reference to a published "grid" in the cited regulation, which purports to indicate whether there is "any other substantial gainful work in the national economy for a claimant, based solely on his residual functional capacity, age, education, and work experience." Because the grid did not list his particular combination of impairments, the ALJ concluded that McKinzie was not entitled to benefits. "Such reliance on the Grid may be inappropriate if the Grid fails adequately to address a claimant's particular limitations," Cederbaum wrote. In this case, the Commissioner failed to present specific evidence that there were jobs available that McKinzie could perform. "McKinzie's nonexertional impairments are so well- documented, numerous, and severe that it cannot reasonably be concluded that they do not significantly diminish McKinzie's employment opportunities." Cederbaum concluded that the ALJ's decision was not supported by "substantial evidence," and even stated that a "reasonable mind" could not accept the ALJ's conclusions, and ordered a new hearing on his claim. A.S.L. Federal District Court Finds Red Cross Subject to Jury Trial in Transfusion Case Is the American Red Cross an instrumentality of the United States and thereby immune from the Seventh Amendment's guarantee of a jury trial in private civil actions? In __Rozak v American Red Cross Blood Services__, 1996 WL 661324 (N.D.Ind., Oct. 8), Judge Miller held that the plaintiff is entitled to a jury trial because the doctrine of sovereign immunity does not apply to the defendant. In June 1994, Rozak received a transfusion of blood platelets allegedly supplied by the American Red Cross Blood Services (ARCBS), from which he claims he contracted hepatitis. In May 1996 he brought a negligence action against ARCBS in Indiana Superior Court. The court noted that the American Red Cross has been a defendant in several suits where it has attempted to assert sovereign immunity. The federal district courts have been divided on the issue; in the only appellate decision, __Marcella v. Brandywine Hosp.__, 47 F.3d 618 (3rd. Cir. 1995), the court concluded that the Red Cross could not assert governmental immunity to thwart a jury trial in a personal injury suit. In reaching its decision, the __Rozak__ court examined the extent of government involvement in the makeup and operations of the American Red Cross. The court noted that although the organization was chartered as a federal corporation, it is essential that it maintain a perception of independence and neutrality while working closely with the government. The court also considered that the President of the United States appoints eight of the fifty-member Board of Governors and the federal government furnishes the Red Cross's headquarters in Washington, D.C. However, the court pointed out that employees of the American Red Cross are not considered federal employees, its activities are privately funded, and its day-to-day activities are directed by the organization. The court found it relevant that the government does not grant civil service benefits to Red Cross employees. The court further asserted that the Red Cross's blood banking activity bear little connection to the organization's federal charter and that the ARCBS is much more a commercial enterprise than a governmental activity. Judge Miller concluded that when all factors are taken into consideration the balance is shifted away from equating the Red Cross with the government and thus away from extending sovereign immunity to the ARCBS. C.W. NY High Court Rules on Limitations Issue in Transfusion Case In a unanimous decision issued Nov. 19, the N.Y. Court of Appeals ruled that the ordinary negligence statute of limitations applies to a transfusion AIDS suit. __Weiner v. Lenox Hill Hospital__, 1996 WL 667924. The case arose from blood transfusions given to the plaintiff's decedent by Lenox Hill Hospital during treatment of a bowel obstruction from October 1984 through January 1985. The decedent first learned of her HIV-infection in 1990, shortly before she died from AIDS. Plaintiff, the administrator of her estate, filed suit against the hospital and the New York Blood Center in March, 1991. The defendants moved to dismiss the complaint as untimely, arguing that under the malpractice statute of limitations in New York, the action must be commenced within 2-1/2 years of the last blood transfusion. The trial and intermediate appellate courts both ruled against the defendants, holding that this was not a malpractice case. Thus, the discovery rule applied, and the limitations period ran for three years from the date in May 1990 when the decedent learned of her HIV-infection. Affirming in an opinion by Judge Carmen Ciparick, the Court of Appeals conceded that "the distinction between medical malpractice and negligence is a subtle one," but "a claim sounds in medical malpractice when the challenged conduct `constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician'. By contrast, when `the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the hospital's failure in fulfilling a different duty,' the claim sounds in negligence." Here, the complaint did not challenge the medical treatment of decedent, but rather the hospital's "`failure to adopt and prescribe proper procedures and regulations' for the collection of blood, a type of claim that we have recognized as sounding in negligence." That a physician is involved in supervising blood collection was not considered determinative by the court; neither was the requirement of expert medical testimony to assist the jurors in "understanding the particulars of the blood-collection process." Thus, the plaintiff will have an opportunity for trial of his claim that the hospital's negligence caused the decedent's HIV-infection. A.S.L. Alaska Supreme Court Reverses Timeliness Dismissal of Hemophiliac's Suit Finding that important questions of fact need to be resolved in order to determine whether an HIV-transmission suit against a manufacturer of a blood-clotting medication was timely, the Alaska Supreme Court reversed the superior court's decision in __Waage v. Cutter Biological Division of Miles Laboratories__, 1996 WL 674307 (Nov. 22), and remanded for further proceedings. Christopher Waage, a hemophiliac resident of Kodiak, Alaska, used Koate, a Miles product, supplied to him through the Oregon Health Sciences University (OHSU). In October 1983, Miles recalled several lots of Koate containing plasma from a donor who had been diagnosed with AIDS. In a letter announcing the recall that went to OHSU, Miles said that "there is no evidence these products will transmit [AIDS]." In a subsequent letter to Waage, OHSU announced the recall but said there was no indication that Koate users had become ill and did not recommend "any special laboratory tests." At that time, of course, the discovery of HIV had not yet been announced and there was no licensed screening test associated with AIDS. By the time Waage received this letter, he had already begun using the HIV-tainted Koate. During 1986 and 1987, Waage had conversations with family members about getting an HIV test, but Waage procrastinated since his health was good. "The longer time passed the more I was convinced that I was not infected," he recalled. In October 1987, Waage received a letter from Dr. Lovrien of OHSU which indicated that "most [of] the fellows with hemophilia your age are positive" and offered testing the next time Dr. Lovrien came up to Alaska, but also indicated most of the hemophiliacs who tested positive were not sick and "I think this is important to remember that the HIV test is just a laboratory test and does not tell us whether or not you are sick or not. . ." Waage did not get the test. In August 1988, after injuring his knee in a fall at a time when he had suffered a weight loss and was experiencing night sweats. Waage saw a doctor in Kodiak who strongly recommended that he get an HIV test. Waage travelled to Seattle and was examined by Dr. Bush on August 10, who noted that the sweats and weight loss had abated and said it was "not imperative" for Waage to be tested at that time. But Waage did get tested on September 2, 3 and 9, receiving positive results from these tests in either October or November of 1988. Waage filed suit against Miles on September 10, 1990, alleging negligence, products liability, and breach of implied warranty. The statute of limitations for tort claims in Alaska is two years. The trial court granted Miles' motion to dismiss under the statute of limitations. On appeal, Waage claimed that the statute should have been equitably tolled in light of the conduct of Miles and others in leading him to believe that he had not been harmed by the use of Koate and that it was not necessary to be tested. In his opinion for the supreme court, Justice Rabinowitz pointed out that there were significant factual issues to be resolved under the equitable tolling doctrine as applied by Alaska courts. Rabinowitz found that there was "sufficient evidence in the record to raise genuine issues of material fact as to whether Miles fraudulently misrepresented and concealed the relationship between HIV positive status and AIDS, as well as the relationship between Koate and AIDS." Also, in a thorough, analytical discussion, Rabinowitz explored the issues of reasonable reliance and due diligence on Waage's part, showing several key areas where further fact-finding was necessary before a court could conclude that Waage should be barred from suit. Waage is represented by Anchorage attorney Ted Stepovich. A.S.L. Federal Court Finds ADA Title III Covers Insurance Discrimination U.S. District Judge Vaughn R. Walker ruled Nov. 13 that Title III of the Americans With Disabilities Act (ADA), which forbids discrimination against persons with disabilities "in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation," is applicable to a claim that an insurance company unlawfully discriminated against the spouse of an HIV-infected person when it refused to sell her a life insurance policy. __Doe v. Chubb Sovereign Life Insurance Co.__, No. C-96-1458-VRW (N.D.Cal.). Mr. and Mrs. John Doe applied for separate life insurance policies in May 1995, for which they submitted blood samples required by Chubb's underwriting practices. Mr. Doe tested positive, while Mrs. Doe tested negative. Chubb denied policies to both of them. Mrs. Doe claimed that the denial to her violated Title III, claiming she was suffering unlawful discrimination on account of her association with an HIV-infected person. Chubb claimed that the only affect of Title III was to require it to make its physical premises accessible to people with disabilities. In rejecting the argument that Title III was limited to physical access issues, Judge Walker reviewed cases from several other federal courts, which have divided on this issue. He found most persuasive various comments from cases indicating support for a more expansive reading of the scope of Title III, and also found that the Justice Department's regulations on point (28 CFR Part 36, App. B at 612) marked a "sensible approach" that is "not inconsistent with the language or purposes of the ADA." The Justice Department stated: Language in the committee reports indicates that Congress intended to reach insurance practices by prohibiting differential treatment of individuals with disabilities in insurance offered by public accommodations unless the differences are justified. . . . [They are justified] "so long as the standards used are based on sound actuarial data and not on speculation." Lambda Legal Defense Fund West Coast Supervising Attorney Jon Davidson and cooperating attorney Timothy Cahn of Oakland represent the plaintiffs. A.S.L. D.C. Court of Appeals Reverses Red Cross Victory in Transfusion Case; Finds Trial Judge's Jury Charge on Negligence Confusing to Jury A three-judge panel of the District of Columbia Court of Appeals, the equivalent of a state supreme court, ruled on Nov. 21 that a trial judge in the district had so bungled the task of instructing the jury on how to evaluate whether the Red Cross was negligent in screening donated blood in 1984 (prior to the licensing of the HIV test in 1985) that a new trial would be necessary in an HIV transfusion case. __Ray v. American National Red Cross__, 1996 WL 671313. Roland Ray acquired HIV infection in a blood transfusion from blood collected by the Red Cross in July 1984. He sued the Red Cross on a negligence claim, and lost a jury trial. On appeal, Ray argued that the trial judge's instruction to the jury did not properly convey "the essence of the tort of negligence" as applied to this case. Ray also objected to several evidentiary rulings by the trial judge. At trial, Ray showed that as of 1984 enough was known about AIDS transmission through blood that the Red Cross could have taken reasonable steps to make its blood supply safer. In defense, the Red Cross showed that at that time the vast majority of blood suppliers were not using the methods advocated by Ray, and that the Red Cross was, in essence, meeting the industry standard at the time. Ray requested the following instruction to the jury: "A blood bank is negligent if it does an act which a reasonable and prudent blood bank would not do or if it fails to do an act which a reasonable and prudent blood banker would do. You are instructed that a blood bank which specializes in the collection of blood and the screening of blood donors has a duty to exercise the degree of care that a reasonable and prudent specialist in this field would exercise under the same or similar circumstances." The Red Cross proposed an instruction which referred to "the care, skill and knowledge ordinarily possessed and used by blood bank professionals," arguing that this would suggest to the jury that the standard was whether the Red Cross was doing what most blood bankers at the time were doing. Rejecting Ray's objection, the trial court gave an instruction that, according to the court of appeals opinion, "appeared to adopt a two-tiered approach to professional negligence: ordinarily, what other professionals are doing establishes the standard of care; however, the plaintiff may show that what a profession is doing as a whole is less than that required by the circumstances." In its opinion, the court of appeals reproduces verbatim the rambling charge actual given to the jury, of which the preceding is a simple summary. The jury was so confused by the charge that it requested clarification during its deliberations. The court rejected Ray's suggestion that it merely repeat part of its original charge and instead offered a new, extemporaneous explication that, if anything, appeared to emphasize reliance on prevailing standards in the blood banking industry to define the Red Cross's duty of care. In explaining what was wrong with the trial court's approach, Judge Ruiz wrote for the court of appeals: "In all the instructions given by the trial court, only at a single point -- during its initial charge, not its `explain[ing]' instruction on the second day -- did the trial court accurately state the standard against which the Red Cross's conduct was to be measured: `What should be done is fixed by ... what [a] reasonable and prudent blood bank [ ] would do under the same or similar circumstances.' The remainder of the instructions focused the jury's attention almost exclusively on the evidence concerning industry practice. In fact, in its initial charge, the trial court `defined' the standard of care in terms of industry custom and practice." Concluded Ruiz, "The effect of the trial court's instructions . . . was to focus the jury's attention on the practices of the whole blood banking industry at the time, instead of the conduct of the Red Cross in light of its circumstances. In an action for negligence, it is the conduct of the defendant that is the central issue, not the conduct of others." Finding reversible error, the court reversed. Turning to evidentiary issues, the court held that the trial court erred in excluding evidence about what the Red Cross did subsequent to July 1984 in its blood-screening practices. While normally evidence of later remedial measures by the defendant is excluded as a matter of policy (to avoid deterring defendants from conforming their conduct to reasonable standards), in this case the evidence was relevant to arguments that the Red Cross was making at trial concerning the feasibility of doing what Ray suggested should have been done to screen donors. Thus, it was directly relevant and admissible. The court also found that the trial court's exclusion of post-1984 statements by Red Cross officials for the purpose of impeaching their testimony about their conduct in 1984 may have been undertaken without adequate scrutiny of the Red Cross's claims that such statements were based on later-acquired information, and suggested that the issue should be addressed anew at retrial. In a brief dissent, Judge Steadman argued that the totality of the judge's charge was not misleading, but that the majority of the court had pulled out isolated phrases for unjust criticism. A.S.L. Michigan Appeals Court Revives Public Services Discrimination Case Against City of Jackson Reversing a trial court grant of summary disposition and reassigning the case to a different trial judge, the Court of Appeals of Michigan ruled on Aug. 9 in __Biggs v. City of Jackson__, 1996 WL 649992, 8 NDLR para. 312, that plaintiff had stated a prima facie case of discrimination under the Americans With Disabilities Act, section 504 of the Rehabilitation Act, and the Michigan Handicappers' Civil Rights Act based on the city's refusal to designate a handicapped parking space in front of his home. The HIV+ plaintiff provided documentation that he could not walk more than 50 feet at a time due to his medical condition, that his home did not have a driveway, and that parking for other businesses in the neighborhood made it unpredictable whether he could park his car directly in front of his home. The city declined his request, even though plaintiff offered to pay for the necessary signage. The trial court granted the city's motion for summary disposition, taking judicial notice of the availability of parking on plaintiff's street and the city's policies and costs regarding handicap parking. In its per curiam opinion, the appeals court found that plaintiff had clearly stated a prima facie case of discrimination under all three statutes, thus placing a burden of reasonable accommodation on the city. On the face of it, plaintiff's suggestion to designate the parking space in front of his home as a handicap space, with plaintiff paying for the necessary signage, appeared quite reasonable. The court criticized various statements made by the trial judge on the record, and commented that once plaintiff had produced evidence sufficient to show that a reasonable accommodation was possible, the burden was on the city to prove that it was unable to accommodate him. Questions of material fact were raised as to the reasonableness of plaintiff's proposal which precluded summary disposition against him. The court also reversed the lower court's award of attorneys fees to the city, finding that plaintiff's case was not frivolous, and granted plaintiff's request to have the case assigned to a different trial judge. A.S.L. Prodigy Services Not Responsible If Employee Infected Subscriber With HIV U.S. District Court Judge Sonia Sotomayor dismissed a suit brought by an on-line computer service subscriber who claimed she became HIV-infected from contact with an employee of the computer service. In __Haybeck v. Prodigy__, 1996 WL 657937 (S.D.N.Y. Nov. 13)(not reported in F.Supp.), Barbara Haybeck claimed that Prodigy, a commercial on-line network, was liable for her injuries under the theories of respondeat superior or negligent hiring and retention. During his working hours at Prodigy, Jacob Jacks spent a considerable amount of time with Ms. Haybeck in an on-line sex chat room run by Prodigy. In addition, Mr. Jacks gave Ms. Haybeck months of free access to Prodigy, as well as unlimited use of his Prodigy account. In time, Mr. Jacks and Ms. Haybeck commenced a sexual relationship in which they engaged in unprotected sex (in person). Ms. Haybeck alleges that before becoming intimate, Mr. Jacks frequently denied that he was HIV+. Ms. Haybeck asserted Prodigy was negligent in supervising Mr. Jacks, thus enabling him to spend "countless hours" on-line. She also charged that Prodigy should have taken additional care to deter Mr. Jacks from engaging in such behavior as repeatedly denying he was HIV-infected and engaging in unprotected sex with subscribers he met through the service. Disagreeing, the court asserted that Prodigy is not liable for Mr. Jacks' conduct because his actions fall outside of the scope of his employment. The court asserted that any injury that Mr. Jacks caused the plaintiff was as a result of personal and not job- related activities. The court therefore reasoned that this employee's behavior cannot be imputed to his employer. Judge Sotomayor contended that to hold an employer legally responsible for such actions would set an untenable precedent, requiring them to monitor and control "the most intimate aspects of their [employees] off-duty lives." Judge Sotomayor also rejected Ms. Haybeck's claim that Prodigy was negligent in hiring and retaining Mr. Jacks. The court explained that Ms. Haybeck cannot prevail because she has failed to prove that Prodigy hired and retained Mr. Jacks with knowledge that he was having unprotected sex with customers without informing them of his HIV+ status. In addition, the court cited New York law, which limits an employer's responsibility for its employees' tortious behavior to acts committed "on the employer's premises or with the employer's chattels . . . ." C.W. Alaska Appeals Court Says HIV-Testing Is Not an Appropriate Condition of Probation on Prostitution Charge The Alaska Court of Appeals held that HIV testing and travel restrictions may be constitutionally infirm when imposed as conditions of probation. __Foley v. Municipality of Anchorage__, 1996 WL 650223 (Nov. 6). Foley was arrested after propositioning a female undercover police officer. After Foley pled no contest to a solicitation of prostitution charge, the prosecutor asked the trial judge to require him, as conditions of probation, to be tested for HIV and to prohibit him from being in the area where he was arrested attempting to hire a prostitute. Because the record did not support a finding that the restrictions were reasonably related to the protection of the public or the rehabilitation of the defendant, the Appeals Court vacated them and remanded the question back to the trial court. Alaska Appeals Court Upholds "Worst Offender" Status for HIV+ Man Who Had Unprotected Sex With Minor The Alaska Court of Appeals affirmed a ten year prison sentence for Robert J. Wans, an HIV+ man convicted of sexual abuse of a minor in the second degree, a class B felony, for having sexual intercourse with a fourteen-year-old girl. __Wans v. State__, 1996 WL 671355 (Nov. 20) (not officially published). Wans, claiming that the sexual intercourse was consensual, appealed his sentence, claiming, among other things, that the trial judge erred in finding as an aggravating factor that "the conduct constituting the offense was among the most serious conduct included in the definition of the offense." Wans had unprotected intercourse, without telling the minor he was HIV+; according to the woman, it was the first time she ever had intercourse. The following day they again had intercourse, but this time the woman brought a condom, which Wans used. The woman has not tested positive for HIV. The appeals court held that the trial judge did not err in considering this an aggravating factor, treating as irrelevant the assertion that the woman was not infected. The trial judge "could properly consider the fact that Wans placed his young victim at extreme risk by his behavior," wrote Judge Coats. "Under the best of circumstances, it is reasonable to infer that M.M. will be very fearful for some time to come that she may have contracted the HIV virus from her contact with Wans. Although M.M. hopefully will never contract the virus, this appears to be a fortuity for which Wans is not entitled to credit." A.S.L. The requirement that Foley be tested for HIV implicated his fundamental privacy rights, according to the appeals court. The trial court record was devoid of information as to any legitimate use the prosecutor would make of the test results. Likewise, the record did not support the restriction on Foley's rights of travel and association because he had no prior criminal record and there was no indication that he was regularly involved in prostitution-related activity. D.W. Federal Court Certifies Class Action But Denies Preliminary Relief in Suit Against NYC City AIDS-Benefits Bureaucracy Certain New York City residents with AIDS or HIV-related diseases brought suit against the City and State of New York on behalf of themselves and others similarly situated. All of the plaintiffs are residents eligible for public assistance benefits, which are provided through the Human Resources Administration's ("HRA") Division of AIDS Services ("DAS"). The Plaintiffs allege that DAS is currently ineffectual and that a proposed restructuring plan developed by City defendants will only further diminish DAS's already diminished abilities. On October 25, Judge Sterling Johnson of the U.S. District Court for the Eastern District of New York granted plaintiffs' motion for class certification, denied their motion for a preliminary injunction, and denied defendants' motion to dismiss. __Henriette D. v. Giuliani__, 1996 WL 633382. Defendants argued that the issues presented by plaintiffs' motion for a preliminary injunction are nonjusticiable because they fall within the province of executive and legislative discretion to allocate funds and to make budgetary decisions. Plaintiffs argued that defendants failed to comply with federal and state constitutional, statutory, and regulatory requirements in their provision of public assistance benefits to persons with AIDS or who are HIV positive and are sick. Citing __Morel v. Giuliani__, 927 F.Supp. 622 (S.D.N.Y. 1995), the court found that the relief requested by plaintiffs "does not invade the decision-making provinces of the State and City executive and legislative officials, but would require City Defendants to resolve their difficulties in a fashion that complies with the Constitution and the law." The court further found that it had subject-matter jurisdiction over the Plaintiffs' claims based on their allegations that the defendants are violating state and federal law. On the issue of Plaintiffs' motion for a preliminary injunction, Plaintiffs alleged that DAS is ineffective in providing public assistance to persons with AIDS and HIV-infected persons. Specifically, Plaintiffs allege that (1) the assignment of case managers to individual cases is frequently delayed and that this in turn causes delays in plaintiffs' receipt of benefits and services; (2) transfers of public assistance cases to DAS from other HRA agencies often take a long time to complete, also causing delays in the receipt of benefits; (3) DAS clients at times receive less than the level of benefits they are entitled to receive; and (4) mismanagement at DAS frequently causes delays in processing requests for services such as home care, homemaking, apartment lease approvals, rent and special moving grants, payment of rent arrears and emergency housing placement. The City denies these allegations; however, the City has recognized the need for increased efficiency in the face of the growing DAS-eligible population. The City has begun implementing a new plan that would unify the case management system in an attempt to streamline access to benefits. Plaintiffs take the position that the DAS is meant to fulfill the requirements that are mandated by the Americans with Disabilities Act (ADA) and Rehabilitation Act (sec. 504) because without a properly functioning DAS, they are unable to access the basic public assistance for which they are eligible. Essentially, Plaintiffs' claim is that DAS as it stands or will stand after the restructuring does not and will not satisfy the reasonable modification requirement of the ADA and Rehabilitation Act. In denying Plaintiffs' motion for a preliminary injunction, the Court applied the likelihood of success on the merits test. The court found that some form of DAS or an agency like it __must__ exist to facilitate and assist Plaintiffs in their accessing of public assistance. However, the court found that it did not seem likely, based on the facts alleged thus far, that Plaintiffs will be able to prove at trial that the current or restructured DAS is or will be debilitated to such a degree that it no longer acts or will act as the required reasonable modification to New York City's public assistance programs for AIDS and HIV-positive clients. However, the motion for class certification was granted and the case will continue. T.V.L. Georgia Appeals Court Upholds Reckless Endangerment Conviction of HIV-Infected Prisoner Who Bit Guard In __Burk v. State__, 1996 WL 656377 (Ga.App., Nov. 13), plaintiff made an out-of-time appeal from his conviction of three counts of obstruction of an officer and one count of reckless endangerment. Of interest to readers is the latter count, which arose from Burk's attempts to bite police officer Vaughn. Burk has AIDS; Officer Vaughn testified that Burk had threatened at various times to transmit the virus to him, as Burk supposedly blamed his disease on the law enforcement officers. Burk was convicted of reckless endangerment. Under Georgia law, individuals who are HIV+ are guilty of felony reckless endangerment if, after knowing of their infection, and without disclosing the fact of their HIV status, they knowingly engage or offer to engage in certain sexual acts, or allow others to use a hypodermic needle previously used by them, or they donate blood, blood products, or body organs. Individuals are guilty of misdemeanor endangerment if they cause bodily harm or endanger the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that their acts will cause harm or endanger the safety of the other person; this disregard must constitute a gross deviation from the standard of care which a reasonable person would exercise in the situation. The question on appeal was whether biting someone when knowingly infected with HIV constituted reckless endangerment. The appellate court held that the fact that Burk's conduct was not specifically proscribed by Georgia law did not insulate him from criminal liability; his attempts to transmit HIV via saliva fall under the provisions of the elements of misdemeanor endangerment. At trial, Burk's treating physician had testified that although he was not aware of any known reports of anyone contracting AIDS through the transmission of saliva, nonetheless "it was very strongly probable that someone could get the HIV virus if bitten by an infected person." (A.S.L., Ed.: One wonders about the credulity of doctors and the process of evaluating expert credentials in the Georgia trial courts.) J.H. Texas Appeals Court Finds Actual Exposure Necessary for Fear of AIDS Claim Upholding a grant of summary judgment in favor of the defendant, the Texas Court of Appeals in Amarillo ruled Nov. 20 that a plaintiff bringing an emotional distress claim based on fear of contracting AIDS must allege actual exposure to HIV through the negligence of the defendant in order to state a claim. __Abrams v. Davidson Oil Co.__, 1996 WL 671399 (not authorized for publication). Abraham Abrams was a customer at defendant's gas station. After purchasing gas, he obtained a restroom key and went to the restroom to clean his hands. He suffered a cut from one of several hypodermic needle resting in the bottom of the soapdish. Abrams reported this incident to the gas station attendant and called the police. He asked the police officers to have the hypodermic needles tested for HIV, but they refused. Abrams took the needles away with him but never had them tested. He sued for mental anguish over the possibility that he might develop hepatitis or AIDS, and the defendant moved for summary judgment. Chief Judge Boyd referred to a recent decision by the Texas Court of Appeals in San Antonio, __Drury v. Baptist Memorial Hospital System__, 1996 WL 591889 (Oct. 9), where the court held that the plaintiff must allege actual exposure to HIV in order to collect damages for fear of contracting AIDS. Boyd wrote that the Amarillo court panel found __Drury__ persuasive and would adopt that ruling. Boyd rejected Abrams' argument that the question whether he was actually exposed to HIV is a "fact question" inappropriate for disposition on summary judgment. Boyd found that Abrams' response to the summary judgment motion "failed to present any evidence or argument that he could present evidence of actual exposure at trial. Consequently, the trial court did not err in granting summary judgment. . . on his `fear of AIDS' claim." A.S.L. U.S. District Court Allows ADA Claim Despite SSDI Claim Addressing an issue important to PWAs who have filed for disability benefits, U.S. District Judge Robert Sweet has ruled that a plaintiff can proceed with an Americans with Disabilities Act (ADA) claim for wrongful termination despite having stated that he was "unable to work" in an application for Social Security Disability Insurance (SSDI) benefits. __Mohamed v. Marriott International, Inc.__, 1996 WL 631687 (S.D.N.Y., Oct. 31). Plaintiff Ahmed Mohamed is a deaf mute who communicates primarily by American Sign Language (ASL). In 1988, he began working at the Marriott Marquis, a Manhattan hotel. In 1993, Marriott accused him of taking customer property; Marriott questioned him with the assistance of a Marriott employee who understood some ASL, and later with a qualified ASL interpreter, and terminated Mohamed the same day. In April of 1994, Mohamed filed suit under the ADA and the New York State Human Rights Law, claiming that Marriott had discriminated against him by failing to provide reasonable accommodations in its pre-termination proceedings. The ADA prohibits employers from discriminating against a "qualified individual with a disability" (QID), defined as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." In July of 1994, unable to find work, Mohamed applied for SSDI benefits. In his application, he stated that he was looking for work, but he also claimed that, as of the date of his termination, he had become unable to work because of total deafness. "When an SSDI applicant establishes that he is currently not employed and has a `listed' disability [such as total deafness, the Social Security Administration (SSA)] makes no further inquiry into the applicant's employability." After Marriott learned that Mohamed had claimed (and been found) to be unable to work, it moved for summary judgment on his ADA claim, arguing that judicial estoppel should bar him from claiming he is a QID. Noting a split of authority on this issue, Judge Sweet decided that the doctrine of judicial estoppel does not bar someone who has been classified as "unable to work" for purposes of collecting benefits under SSDI from maintaining a claim under the ADA, because in the 2d Circuit the doctrine applies only when two conditions are satisfied: "(1) the party against whom estoppel is asserted must have argued an inconsistent position in a prior proceeding; and (2) the prior position must have been adopted by the court in the prior proceeding." SSDI and the ADA define disability differently, and in fact the SSA, in order to encourage persons with disabilities to seek employment, specifically allows a claimant to work for a trial period of up to nine months while continuing to receive disability benefits. Noting that Mohamed had disclosed in his benefits application that he was continuing to seek work, Sweet ruled that Mohamed had not necessarily asserted inconsistent positions in claiming to be unable to work within the context of his SSDI claim, while also claiming to be ready to work in the context of his ADA claim. Sweet also observed that the SSA procedure was not a court proceeding and did not purport to rule on the question of whether Mohamed was a QID under the ADA. Lastly, Sweet concluded that "estopping Mohamed...would undermine the legislative policy of providing the disabled with both protection from destitution and a genuine opportunity to participate fully in the job market." O.R.D. Prosecutorial Immunity Defense to Defamation Suit Concerning HIV Information May Be Invalid Rejecting a motion to strike, Connecticut Superior Court Judge McMahon ruled Nov. 6 that the immunity from defamation actions normally accorded to prosecutors may not apply to a situation where a prosecutor revealed confidential HIV-related information in open court. __Barese v. Clark__, 1996 WL 663850. Defendant Clark, a supervising state's attorney in New Haven, successfully prosecuted James Evans for assaulting and robbing the plaintiff and burglarizing her home. During the attack, Evans bit the plaintiff. According to Barese's complaint, on the morning of the sentencing hearing for Evans, Clark called Barese to his office and told her that Evans claimed to be infected with HIV. Barese alleges that Clark assured her that "no one will even know what's discussed here." However, at the sentencing hearing later that day, Clark revealed Evans' claim about being HIV+, and said that if the prosecution had that information earlier, it would have charged Evans with attempted murder. Barese alleges the local media reported these remarks, thus disclosing her possible exposure to HIV to public knowledge. Clark moved to strike her complaint on grounds of prosecutorial immunity for statements made within the judicial process. Denying Clark's motion, Judge McMahon emphasized a Connecticut law, Gen. Stat. sec. 19a-583, under which "disclosure of confidential HIV-related information is prohibited except in very limited and discrete circumstances" according to a recent Connecticut Supreme Court decision, __Doe v. Marselle__, 675 A.2d 835. "In light of the statutory protection of confidential HIV information in Connecticut, it is not clear that the defendant is absolutely immune from liability for publicly revealing confidential information regarding the plaintiff's potential HIV infection during the sentencing hearing, especially since it is not apparent that the information was even relevant to the proceeding," wrote McMahon. In addition, one count of the complaint sounded in fraud, related to Clark's statement to Barese in his office, and McMahon expressed doubt that Clark's statement in that context was shielded by prosecutorial immunity in any event. Since the issue of prosecutorial immunity is unclear, McMahon felt it would not be appropriate to dispose of it in a motion to strike the complaint. A.S.L. Canadian Appeals Court Refuses to Apply Assault Statute to Consensual Sex Involving HIV+ Man Ruling in __R. v. Cuerrier__, the British Columbia, Canada, Court of Appeal upheld dismissal of criminal assault charges against an HIV+ man who engaged in consensual unprotected intercourse with two women without telling them of his HIV-status. Neither woman was infected with HIV as a result of this activity. Writing for four members of the panel, Madame Justice Prowse said, "The invitation extended to us to enlarge the common law of assault by creating another category of conduct which will vitiate consent is one which I respectfully decline. This is not a case about the merits or demerits of consensual brawling which occasions bodily harm. We are concerned with the most intimate and private of human behaviour, the sexual act, which, as far as these individuals were concerned at the time, was consensual. Unlike unrestrained brawling, the consensual sexual act has positive social value, ranging from pleasure to the bonding of individuals, to procreation. . . I am also reluctant to create a further category of conduct which would vitiate consent in these circumstances, since to do so would come perilously close to creating a new offence, with Mr. Cuerrier being the first Canadian to suffer the consequences. . . I conclude that, to the extent that the criminalization of conduct creating a risk of the transmission of HIV is considered to be in the public interest, the assault provisions of the Code are not well-suited to the task. . . In may view, parliament is in the best position to strike the appropriate balance between the competing interests of promoting public health initiatives to control the spread of HIV, deterring harm-risking conduct, and protecting individual autonomy." One member of the appellate panel, Justice Williams, said "It is harder to envisage a stronger set of facts than this case presents. The conduct of the appellant in this case is absolutely reprehensible and in my view deserving of some criminal sanction." But the court unanimously agreed that in the absence of transmission Mr. Cuerrier could not be punished under the province's laws, and there was no dissent. Our report is from summaries posted to the Internet by Rob Hughes, Barrister and Solicitor, Smith & Hughes. A.S.L. AIDS Law & Society Notes The White House coordinator of AIDS policy, Patricia Fleming, announced she will be leaving early in 1997. Her chief deputy, Jeff Levi (former executive director of the National Lesbian & Gay Task Force), announced his departure at the beginning of December. Concern was raised that new leaders for the nation's AIDS effort may not be in place during crucial discussions leading to introduction of the President's proposed budget for fiscal year 1998, which must be sent to Congress in February. Among names surfacing as potential replacements for Fleming were Los Angeles black gay AIDS activist Phill Wilson (director of public policy at AIDS Project Los Angeles), New York City gay AIDS activist Mike Isbell (deputy director at Gay Men's Health Crisis), Washington D.C. gay AIDS activist Jim Graham (executive director of the Whitman-Walker Clinic, a gay/AIDS health organization), and Pat Christen (director of the San Francisco AIDS Foundation), whose sexual orientation was not specified in news reports. __Washington Times__, Dec. 4. In a decision announced Nov. 4, the U.S. Court of Appeals for the 6th Circuit, sitting en banc, ruled that punitive damages are not available for intentional violations of Section 504 of the Rehabilitation Act, overruling a 3-judge panel of the circuit in __Moreno v. Consolidated Rail Corporation__. Two dissenting judges argued that a prior Supreme Court case provided a rationale for awarding punitive damages in this type of case. See BNA __Daily Labor Report__ No. 217 (11/8/96), pp. AA-1 & E-3. The case did not involve HIV/AIDS, but the ruling is of obvious significance for persons with HIV/AIDS seeking redress under Section 504 in the 6th Circuit. A U.S. District Judge in Florida has ruled that Title II of the Americans With Disabilities Act, which covers discrimination in public services, programs and activities, does not provide a cause of action for employment discrimination. __Bledsoe v. Palm Beach Soil and Water Conservation District__, No. 94-8360-CIV (S.D.Fla., 10/17/96). The decision by Judge Kenneth L. Ryskamp contradicts rulings in several other jurisdictions. The significance of this ruling is that Title I, the employment chapter of ADA, applies only to entities that employ 15 or more persons; if Title II provided a cause of action for employment discrimination against public employers, there would be no requirement that a particular public program employ 15 or more persons in order to be covered by the non-discrimination requirement. Ryskamp found that Congress did not intend this anomaly. Four leading pharmaceutical companies that produce blood clotting medication for use by hemophiliacs have indicated that they plan to go ahead with a $620 million settlement of several thousand lawsuits on behalf of hemophiliacs who contracted HIV-infection as a result of using their products prior to the introduction of the HIV antibody screening test in 1995. At a hearing in federal district court in Chicago on Nov. 22, attorneys for the drug companies told U.S. District Judge John Grady that the refusal of more than 500 HIV-infected hemophiliacs to go along with the settlement will not deter the companies from proceeding to settle with other plaintiffs. __New York Times__, Nov. 26. Last year, Congress included in federal health appropriations a requirement that providers of prenatal care strongly recommend HIV testing for pregnant women, and indicated that if the number of infants who acquire HIV from their mothers does not decrease sharply, the government will implement mandatory HIV-testing of newborn infants. On Nov. 22, the __New York Times__ reported a CDC announcement that the number of newborns who contracted HIV from their mothers declined 27 percent from 1992 to 1995. The CDC attributed this to a substantial increase in the number of pregnant women who were obtaining prenatal HIV testing and AZT therapy during pregnancy, which has been shown to reduce sharply the likelihood that the infant will be born with HIV infection. The latest statistics from the CDC show a total of 566,002 reported AIDS cases in the U.S. by the end of September, including 7,472 from children under age 13, of whom 90 percent were infected perinatally. Most of the other childhood HIV infections were attributed to contaminated blood or blood products. A.S.L. PUBLICATIONS NOTED LESBIAN & GAY & RELATED LEGAL ISSUES: Amar, Akhil Reed, Attainder and Amendment 2: Romer's Rightness, 95 Mich. L. Rev. 203 (October 1996). Association of the Bar of the City of New York, A Recommendation Against the Passing of H.R. 3396; S. 1740: A Bill to Define and Protect the Institution of Marriage, 51 Record of the Association of the Bar of the City of New York 654 (October 1996) (Joint report by Committees on Civil Rights; Lesbians & Gay Men in the Profession; Sex and Law). Barton, Chris, The Homosexual in the Family, 26 Fam. L. (U.K.) 626 (Oct. 1996). Brashier, Ralph C., Children and Inheritance in the Nontraditional Family, 1996 Utah L. Rev. 93. de Vos, Pierre, On the Legal Construction of Gay and Lesbian Identity and South Africa's Transitional Constitution, 12 S. African J. on Hum. Rts. 265 (1996). Geary, Christopher R., Advance Directives for Health Care Matters: Unified Statutes Solve Many Problems, 13 Probate L.J. 85 (1996). Harbeck, Karen M., Gay and Lesbian Educators: Personal Freedoms, Public Constraints (Amethyst Press, PO Box 249-H, Malden, MA 02148, $24.95). Hills, Roderick M., Jr., Is Amendment 2 Really A Bill of Attainder? Some Questions About Professor Amar's Analysis of Romer, 95 Mich. L. Rev. 236 (October 1996) (response to Amar article, above). Jacobs, Daniel L., Same-Sex Marriages: A Selective Bibliography of Legal and Social Aspects, 51 Record of the Association of the Bar of the City of New York 687 (October 1996). Johns, Michael, The First Amendment and Cyberspace: Trying to Teach Old Doctrines New Tricks, 64 U. Cin. L. Rev. 1383 (Summer 1996). Katz, Michael P., Close Encounters of the Third Kind: Privacy, Equality and the Expression of Homosexual Preference, 12 S. African J. on Hum. Rts. 308 (1996)(argument for invalidation of South African laws penalizing consensual male homosexual activity). Kendall, Christopher, and Brian Eyolfson, "One in Ten" But Who's Counting?: Lesbians, Gay Men and Employment Equity, 27 Ottawa L. Rev. 281 (1995). Kim, Pauline T., Privacy Rights, Public Policy, and the Employment Relationship, 57 Ohio St. L. J. 671 (1996). Mohler, R. Albert, Jr., Homosexuality in Theological Perspective: Toward an Evangelical Response, 2 Liberty, Life & Family 219 (1996) (Know thine enemy: This theologically-inspired anti-gay diatribe by the President of the Southern Baptist Theological Seminary is published by a student journal from Pat Robertson's Regent University Law School). Moran, Leslie F., The Homosexual(ity) of Law (Routledge, London & New York, 1996). Nersessian, David L., Mom Versus Grandma -or- Parent Preference Versus Best Interest: An Examination of the Case for Grandparent Custody, 13 Probate L.J. 133 (1996). Pantazis, Angelo, The Problematic Nature of Gay Identity, 12 S. African J. on Hum. Rts. 291 (1996). Posner, Richard A., and Katharine B. Silbaugh, A Guide to America's Sex Laws (U. Chi. Press, 1996) (reviewed by Carlin Meyer in New York Law Journal, Nov. 8, 1996, p. 2) Rimmerman, Craig A., Gay Rights, Military Wrongs: Political Perspectives on Lesbians and Gays in the Military (Garland Publishing Co., N.Y., 1996). Seaquist, Gwen, and Eileen Kelly, Employer Rights and Liability in Regulating Provocative Dress in the Workplace, 48 Lab.L.J. 668 (Oct. 1996). Student Notes & Comments: Blasi, Susan Silberman, 1996 Student Writing Competition Winner: The Adjudication of Same-Sex Sexual Harassment Claims Under Title VII, 12 The Labor Lawyer 291 (Summer/Fall 1996). DeCoste, F.C., Vriend v. Alberta: Sexual Orientation and Liberal Polity, 34 Alberta L. Rev. 950 (1996). O'Byrne, Shannon K., and James F. McGinnis, Vriend v. Alberta: Plessy Revisited: Lesbian and Gay Rights in the Province of Alberta, 34 Alberta L. Rev. 892 (1996). Renke, Wayne N., Vriend v. Alberta: Discrimination, Burdens of Proof, and Judicial Notice, 34 Alberta L. Rev. 925 (1996). Symposia: Symposium on Battered Women and the Law, 57 U. Pitt. L. Rev. No. 3 (Spring 1996). AIDS & RELATED LEGAL ISSUES: Bruyere, Susanne M., Susana Gomez & Gwen Thayer Handelmann, The Reasonable Accommodation Process in Unionized Environments, 48 Lab.L.J. 629 (Oct. 1996). Hoekstra, David John, "Without Knowledge of the Disability": An Emerging Limitation to Liability Under the ADA, 47 Lab. L. J. (CCH) 717 (Nov. 1996) (brief review of emerging caselaw on employer defense of lack of knowledge of disability) Hughes, Mark F., Jr., Insurer's Ability to Contest Claims After the Contestability Cutoff, 63 Defense Counsel J. 537 (Oct. 1996). Student Notes & Comments: Labuschagne, J.M.T., Sexual Orientation, Sexual Autonomy and Discrimination Definition of Crime, 12 S. African J. on Hum. Rts. 321 (1996). Stukes, Anne S., Doe v. University of Maryland Medical System Corporation: Should Doctors With AIDS Continue to Practice?, 74 N.C. L. Rev. 2013 (September 1996). The Impact of the Americans With Disabilities Act on AIDS Discrimination in the Workplace, 19 Am. J. Trial Advoc. 623 (Spring 1996). Editor's Note: All points of view expressed in Lesbian/Gay Law Notes are those of identified writers, and are not official positions of the Lesbian and Gay Law Association of Greater New York. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in Law Notes is welcome and will be published subject to editing. Please address correspondence to the Editor or send by e-mail. A.S.L.