LESBIAN/GAY LAW NOTES ISSN 8755-9021 January 1997 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; 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) 1997 by Lesbian & Gay Law Association of Greater New York $45/yr by subscription; Foreign Rate US$60 ILLINOIS APPEALS COURT HOLDS CUSTODY DETERMINATIONS TO BE "SEXUAL ORIENTATION NEUTRAL" Child custody determinations in the state of Illinois are "sexual orientation neutral"; furthermore, the potential for social condemnation due to a parent's homosexuality is not, in itself, enough to justify a change in custody, it was unanimously declared in the Dec. 16 decision _In re Marriage of R.S. and S.S._, 1996 WL 724557 (Ill. App., 3rd District). This was reported to be the first time an appellate court in Illinois has upheld custody for a bisexual or lesbian mother. This positive decision overturned a trial court ruling from Jan. 31, 1996, which had been stayed pending this appeal, reversing the existing custody arrangement involving the two children of Rebecca and Stuart Schroeder. Presiding Justice Peg Breslin wrote on behalf of the three-judge appellate panel, finding that the original arrangement giving custody of the children to the mother, to which both parents had initially agreed, should not be overturned simply because the mother was now living with a woman in a sexual relationship. The Schroeders were divorced in 1991. In 1993, Rebecca, who identifies as bisexual, met J.S., who also identifies as bisexual. They began a sexual relationship and J.S. moved into Rebecca's home later that year. In 1993 Stuart remarried, and in August of 1993 he filed for modification of custody, alleging that a substantial change in circumstances had occurred due to his new marriage and to his ex-wife having "embraced an openly homosexual lifestyle" which placed "her sexual desires ahead of the emotional, moral and educational needs of the children." In June 1994, Rebecca sold her home and moved with her children into J.S.'s home in a nearby town. The Illinois Marriage and Dissolution of Marriage Act creates a presumption in favor of current custodial arrangements so as to promote stability and continuity in children's lives. In order to modify custody, the burden of proof rests with the party requesting modification, who must prove by clear and convincing evidence that there has been a change in the circumstances of the child or the custodial parent, and that modification is necessary in order to serve the best interests of the child. The trial court, straining to find in favor of the father, had noted three factors which, together, it found amounted to a substantial change in circumstances: (1) the father's remarriage and the children's familial relationship with the father's wife and children; (2) the mother's reduction in the children's contact with their paternal grandmother, and (3) the mother's involvement in a conjugal lesbian relationship. Based on these circumstances, the court found that it was in the best interests of the children to modify custody and award it to the father. The mother appealed. The sole issue on appeal was whether Stuart Schroeder presented clear and convincing evidence at trial to show that a change in custody was necessary to serve the best interests of the children. In her review of the record, Judge Breslin noted preliminarily that two of the trial court's findings were unsupported by the record. First, although the trial court found that Stuart and his new wife had "other children" with whom the parties' children had forged a familial relationship, there was in fact only a newborn. Additionally, Judge Breslin found no evidence that Rebecca's living arrangements were unstable or lacking in familial relationship. She thus agreed that while the father could provide a good home for the children, the children's relationship with his new family in and of itself did not support a modification of custody. Second, the trial court had found that Rebecca had limited the children's contact with the grandmother. However, Judge Breslin found that this was due to the maturing of the children, their move to a nearby town, and the grandmother's reluctance to initiate contact on her own. She found no evidence that Rebecca actively interfered with the relationship between the children and their grandmother. Thus, the sole change in circumstances to warrant a change in custody was the mother's lesbian relationship. Judge Breslin noted that the trial court had made no finding that the children were adversely affected by the relationship. Indeed, the parents, the paternal grandmother, the children's teachers, and two clinical psychologists all agreed that the children were healthy and well adjusted, although the trial court's psychologist did find that there would be a "slight" advantage to the father's having custody because of the risk of societal condemnation of homosexual relationships. The father argued that he was entitled to a change in custody based solely on the "immorality" of the mother's sexual relationship, citing an old Illinois case, _Jarrett v. Jarrett_, 400 N.E.2d 421 (1979), in which it was found that the "open and notorious" nature of the mother's sexual relationship with an unmarried man endangered the moral well-being of the children and required a change in custody. However, as the appellate court here noted, four years after _Jarrett_, the Illinois Supreme Court overruled _Jarrett_ with _In re Marriage of Thompson_, 449 N.E.2d 88, 93 (1983), holding that _Jarrett_ did not establish a conclusive presumption that the child is harmed by a parent's living with a member of the opposite sex, and that all the circumstances must be considered that affect the best interests of the child. Judge Breslin concluded that while cohabitation with a member of the same sex differs from that with a member of the opposite sex, "the clear import" of _Thompson_ is that Illinois courts should not adopt any absolute rule that would require a change in custody based on conduct of the custodial parent if that conduct does not impact the children. Although the trial court did not find that the children had suffered any negative consequences as a result of their mother's sexual relationship, it theorized that the children might suffer some future social condemnation. Citing Virginia's infamous _Bottoms v. Bottoms_, 249 Va. 410, 457 S.E.2d 102 (1995), for the proposition that the potential for social condemnation is a factor to be considered when making a custody determination, the trial court concluded that this threat was reason to change custody. In addition, Stuart Schroeder argued that the court should not wait until actual harm had occurred before modifying the prior custody order. The issue, according to Judge Breslin, is that while the court may consider the custodial parent's homosexual relationship when making a custody determination, the trial court's function is solely to determine the effect of the parent's conduct upon the children. The judge noted that _Bottoms_ also stood for the proposition that a lesbian mother is not to be presumed to be an unfit parent, but rather that custody determinations are made by considering several factors, including "misconduct that affects the child." Unlike _Bottoms_, which found evidence of harm including significant abuse, neglect, and abandonment, in the instant case there was no evidence of any harm to the children due to their mother's living situation. Although there was risk of social condemnation as a result of her sexual relationship, Judge Breslin noted that this risk would not be eliminated by awarding custody to the father. Furthermore, the fact that the trial court's psychologist found that there was a "slight" advantage to the father's having custody due to potential societal condemnation was not enough. The law does not change custody when one arrangement is slightly better than another; rather the proposed arrangement must be shown necessary by clear and convincing evidence. Similarly, the father's claim that the mother's conduct endangered the moral well-being of the children must be shown by clear and convincing evidence. Judge Breslin noted that Stuart Schroeder failed to present any evidence on this issue at all. Thus, he failed to meet his burden of proof and his request to modify custody was denied. Patricia M. Logue, managing attorney for Lambda Legal Defense and Education Fund's Midwest Regional Office, argued the case. Her co-counsel was Zane Lucas of Carter & Grimsley in Peoria, Illinois. Amicus briefs were filed by the National Association of Social Workers, the Illinois Chapter of the National Association of Social Workers, the National Organization for Woman Legal Defense and Education Fund, and the Bloomington Illinois chapter of Parents, Families and Friends of Lesbians and Gays. J.H. LESBIAN/GAY LEGAL NEWS Washington State Appeals Court Strikes Restrictions on Gay Father's Conduct The Associated Press reported that the Washington State Court of Appeals, Division 1, ruling on Dec. 23, rejected a decision by Whatcom County Superior Court placing behavioral restrictions on Ward Wicklund when he has visitation with his three girls and his son. According to the AP report, as published in the _Seattle Post-Intelligencer_ (Dec. 25), the Wicklunds divorced in 1994. "Their marriage had been plagued by repeated arguments and instances of physical abuse, infidelity and alcohol abuse, complicated further by Ward Wicklund's gradual acceptance of himself as a gay men," reported AP. At the trial, a psychologist testified that the children "were doing rather well," but a court-appointed investigator felt that the children might have trouble adjusting to "their father being involved with another male." The trial court set restrictions on both parents' behavior, ordering them not to display affection with a partner in front of the children. Overturning this order, The Court of Appeals held that the trial court "erred by restricting [Wicklund's] conduct based on his sexual orientation. . . The evidence showed only that the children experienced difficulting adjusting after their parents' separation. But where the only harm is adjustment, the remedy is counseling, not restrictions on the parents' lifestyle in terms of sexual orientation." The court also reversed restrictions placed on Corinne Wicklund of a similar nature, which barred her from expressing affection in front of the children toward another adult to whom she was not married. Concluded the appellate court: "Problems with adjustment are the normal response to any breakup of a family. But restrictions on a parent's conduct designed to artificially ameliorate changes in a child's life are not permissible." A.S.L. Supreme Court Expresses Interest in Same-Sex Harassment Issue Although the Supreme Court denied certiorari in a trio of same-sex harassment cases at the start of its October 1996 term, the continued flow of certiorari petitions on this issue has apparently prompted the Court to inquire whether the Clinton Administration has a position on the question whether Title VII would apply to a same-sex harassment case. On Dec. 16, the Court asked the Justice Department to submit a statement on whether the Court should grant review in _Oncale v. Sundowner Offshore Services_, 83 F.3d 118 (5th Cir. 1996), No. 96-568. The 5th Circuit has consistently taken the position that no same-sex harassment claim may be brought under Title VII because Congress's primary intent in including sex in Title VII was to address imbalances of sexual power in the workplace by protecting women from harassment by men. Other circuits have disagreed with this reading of the federal statute on sex discrimination, noting that prior Supreme Court decisions on sexual harassment have never adopted such a theory for finding a cause of action. A.S.L. Minnesota Appeals Court: Sexual Harassment Actionable Regardless of Parties' Sex Applying the Minnesota Human Rights Act (MHRA), a Minnesota appeals court has ruled that a plaintiff can establish a sexual harassment claim without proving that the harassment is "because of" or "based on" sex or sexual orientation. _Cummings v. Koehnen_, 1996 WL 721531 (Minn. App., Dec. 17). Plaintiff Richard Cummings worked for defendant S&K Trucking and Landscaping, run by defendant Charles Koehnen and his wife, Joan Schneider. Cummings was laid off and not rehired, and then sued his former employer under the Human Rights Act claiming that Koehnen had repeatedly sexually harassed him both physically and verbally. S&K had a one-sentence policy on sexual harassment; it instructed employees to contact Schneider. Cummings told Koehnen to stop bothering him, but did not complain to Schneider. The MHRA prohibits sex discrimination, and defines "discriminate,"" "for purposes of discrimination based on sex," to include sexual harassment. Relying on federal precedents that had ruled same-sex harassment is not actionable discrimination under Title VII, the district court granted a defense motion for summary judgment on the theory that Cummings had failed to adduce evidence that the harassment was based on his sex. The appeals court reversed, observing that the statute does not impose any requirement concerning the sex or sexual orientation of the harasser or the victim. The court concluded that "a plain reading of the statute allows a claim of sexual harassment, without regard to the harasser or victim's gender or sexual orientation, if a victim can prove a harasser's verbal or physical conduct or communication was of a sexual nature, and created a hostile, or offensive, employment environment." The opinion goes further, however, stating that the plaintiff "need not prove that the [harassment] is `because of' or `based on' gender or sexual orientation" - thus apparently removing the crucial element of every sex discrimination claim. O.R.D. First Circuit Rules for Surviving Companion in Insurance Dispute In _Colasanto, Trustee v. Life Insurance Company of North America_, 1996 WL 653693 (Nov. 15), the U.S. Court of Appeals for the 1st Circuit affirmed a jury verdict awarding certain life insurance proceeds to a decedent's "quondam companion," rather than to a family trust named in the decedent's will, even though the decedent arguably did not satisfy all of the technical requirements needed to change the beneficiary of this policy to his former companion. Decedent, a successful businessman, met his lover, Farley, in 1982, and they lived together for ten years. The decedent discovered he was HIV+ in 1989, and that he had AIDS in 1992. As his health deteriorated, so did his relationship with Farley, until they decided to separate and began to work out a property settlement. In December of 1993, the decedent transferred ownership of five life insurance policies, including the subject policy, to Farley. He completed an application for conversion of benefits to Farley, naming him "executor", referencing and enclosing a letter stating that Farley was to be beneficiary under the policy. The contents of the letter were reiterated in correspondence enclosed with a subsequent payment. However, the decedent did not complete an assignment form sent by the insurance company, and Farley was not named "executor" of anything for the decedent. Although the couple reconciled for a period before death, there was a final breach in March 1994. The decedent executed a subsequent change of beneficiary form, naming the plaintiff, his brother, beneficiary, as trustee of a revocable trust. The decedent died in June of 1994. The Trustee sued the insurance company in Rhode Island state court. The insurance company had the case transfer erred to federal court, impleaded Farley, and deposited the funds in the registry of the court. A jury verdict was awarded to Farley, and the Trustee's motions for judgment as a matter of law and new trial were denied. On appeal, the First Circuit ruled, in an opinion by Judge Selya, that while there might not have been substantial compliance with the literal terms of the insurance policy, under applicable law such formalities run to the benefit of the insurance company and not others. The trustee could not raise this issue. Further, the court ruled that while the insurance company stated that an assignment form was necessary for change of beneficiary, this is not what the application completed by the decedent said. Thus, there were actually two ways to make a change of beneficiary. The court likewise rejected the appellant's argument that Farley was named a beneficiary in a non-existent fiduciary capacity, as correspondence with the life insurance company, demonstrating the decedent's intent, indicated otherwise. A number of procedural questions relating to new trial, and evidentiary questions relating to "then-existing state of mind." were also raised and disposed of by the court. S.K. Minnesota Court: Prosecutor Could Ask About Sexuality Alexander Juarez was convicted in a Minnesota court for attempted first degree criminal sexual conduct and third degree criminal sexual conduct, involving sexual abuse of two teenage boys. Appealing his sentence, he argued that the prosecutor "committed prejudicial misconduct" by presenting evidence suggesting that Juarez was gay. As analyzed by the court on appeal: "The trial court ruled, after direct examination of Juarez, that the prosecutor could ask Juarez whether his upstairs neighbor was homosexual, but not whether Juarez himself was homosexual. There had been testimony that Juarez had shown to C.C. a pornographic video involving homosexual acts, had engaged in anal intercourse with C.C., and had either proposition or made sexual comments to at least three other boys. . . Evidence of homosexuality may be properly introduced only if it is relevant to the charged crime. . . But long before the prosecutor's questions insinuating that Juarez was homosexual, one of the juveniles, J.M., testified that Juarez had told him that he was homosexual. There was no defense objection to this testimony. The inference raised by the prosecution's questions was cumulative to this evidence. Even assuming these questions were improper, they did not likely play a substantial part in influencing the jury to convict." _State v. Juarez_, 1996 WL 706832 (Minn.App., Dec. 10) (not officially published). A.S.L. New Decision in Thorne Case May Show Military Ploy to Defend the "Don't Ask, Don't Tell" Policy A key factor in determining whether the "don't ask, don't tell" policy on military service by lesbians and gay men rests on whether the policy creates an irrebuttable presumption that service members who say they are gay will engage in prohibited conduct. As revealed in the new opinion in _Thorne v. U.S. Dept. of Defense_, 1996 WL 686481 (U.S.Dist.Ct., E.D.Va., Nov. 20), by District Judge Ellis, it appears that the Defense Department may have figured out a way to defeat the argument that the policy creates an irrebuttable presumption: create a model case in which the presumption is "rebutted" and then cite that in all subsequent challenges to the policy. Thorne served more than six years as a commissioned officer in the Navy, ultimately earning the designation of Naval Flight Officer. On May 19, 1992, he "came out" during on appearance on "Nightline." He was processed for discharge, but his discharge was held up during the period when the President and Congress were debating changing the policy. Ultimately he was re-processed for discharge under the new policy. While Thorne's case was pending before Judge Ellis, the 4th Circuit announced its decision in _Thomasson v. Perry_, 80 F.3d 915, cert. denied, 65 U.S.L.W. 3305 (1996), in which it rejected a constitutional challenge to the policy. Nonetheless, Thorne argued that the record in his case, which contained no evidence of conduct and rested solely on his televised statement that he is gay, makes his case distinguishable from Thomasson's case, justifying a different result. In essence, Thorne contended that he was being discharged solely for stating he was gay under a policy that created an irrebuttable presumption equating status with conduct in violation of the 5th Amendment. Thorne sought to bolster his case by referring to an internal Defense Department memorandum by DoD General Counsel Judith A. Miller, which Thorne argues directed military commanders to reject any distinction between status and conduct in their administration of the policy. The Miller memorandum states: "A member may not avoid the burden of rebutting the presumption merely by asserting that his or her statement of homosexuality was intended to convey only a message about sexual orientation, as defined in the Directives, and not to convey any message about propensity or intent to engage in homosexual acts. To the contrary, by virtue of the statement, the member bears the burden of proof that he or she does not engage in, and does not attempt, have a propensity, or intend to engage in homosexual acts. If the member in rebuttal offers any evidence that he or she does not engage in homosexual acts or have a propensity or intent to do so, the offering of the evidence does not shift the burden of proof to the government. Rather, the burden of proof remains on the member throughout the proceeding." Rejecting Thorne's challenge, Ellis credited evidence about a discharge case that occurred after the Miller Memorandum was issued. In this case, an 18-year veteran officer, who had confided in his commander that he needed time off to care for his "male companion" who "was in the last stages of AIDS," was processed for discharge. Before the Board of Inquiry, he stated under oath: "As I stand before you, I do not intend to engage in any activities which are contrary to Navy or Department of Defense regulations." The Board unanimously found that he had failed to rebut the presumption, but was overturned by a Board of Review, which ordered his reinstatement. The Board of Review purported to base its conclusion on: a DoD study showing that gay service members in many instances successfully refrain from engaging in prohibited acts; the officer's HIV-negative status; the government's failure to present evidence of homosexual conduct; the officer's past performance and credibility; the stressful circumstances under which the officer revealed his homosexuality to his commander and his reason for doing so; the introduction of the Miller Memorandum at the hearing, which the Board found had "tainted the result." On the basis of this case, Judge Ellis found that it was possible to rebut the presumption, thus removing any question as to its constitutionality, and granted the government's motion for summary judgement. This strikes us as fairly hypocritical. The Navy exercises clemency in the case of an 18-year officer who desperately needs time off to care for his dying lover, letting him remain in the service (undoubtedly long enough to be able to retire with a full pension), and then produces his case as "Exhibit A" in subsequent constitutional challenges to the "don't ask, don't tell" policy. So now the Navy has a "show case" that can be used to defeat all subsequent challenges, at little cost to the Navy (which realizes, of course, that the justifications offered for the policy have no real substance). Or are we reading too much into this case? A.S.L. Louisiana Appeals Court Affirms Reinstatement of Teacher Discharged in Homophobic Smear Campaign Life is stranger than fiction. Consider the case of _Holt v. Rapides Parish School Board_, 1996 WL 709720 (La.App., 3rd Cir., Dec. 11), in which the Court of Appeal of Louisiana affirmed a decision by District Judge Lewis Lauve ordering reinstatement of Gwendolyn Holt as a tenured teacher. From the court's recitation of the facts, this sounds like something out of the 1950's. Gwendolyn Holt was a tenured teacher and coach for women's sports at Oak Hill High School. One of her students was Lori Robinson, the daughter of Holt's cousin Mike Robinson. Holt and the Robinsons had a close, familial relationship, and that carried over into Holt's relationship with Lori at school. As is sometimes the case with unmarried female sports coaches, rumors ran throughout the community that Holt was a lesbian. Seizing on these rumors and a bunch of unsubstantiated "incidents" involving Holt and Lori, the Superintendent of Schools, Allen Nichols, went to the Board of Education seeking Holt's dismissal on grounds of "willful neglect of duty" based on an "improper relationship" with a student. The Board held a hearing, after which it voted 5-4 that several of the incidents were proven, found Holt guilty of "willful neglect of duty" by a vote of 6-3, and then voted to discharge her by a vote of 5-4. In the ensuing lawsuit, Holt persuaded Judge Lauve that there was no substance to the charge. Upholding this determination in an opinion by Judge Decuir, the appeals court found that the charges against Holt "are replete with insinuations and innuendos, but the Board's case is seriously lacking in evidence, much less the `substantial evidence' required to support the Board's actions. The trial judge stated: The events did happen, but except for some vague inference, they do not substantiate a charge of an unprofessional relationship. Furthermore, the other facts and circumstances of these events make them completely innocuous. We agree with the trial judge and, thus, find no error in the district court's finding. . ." The court concluded that the School Board's decision "was arbitrary and an abuse of discretion," and assessed the School Board the full costs of the appeal. A.S.L. Marriage & Domestic Partnership Notes The decision by Hawaii Circuit Judge Kevin Chang early in December in _Baehr v. Miike_, holding that the state had failed to show a compelling interest requiring it to exclude same-sex couples from eligibility for marriage licenses, led to a torrent of media commentary, and renewed efforts in some states to pass laws reserving access to marriage to opposite-sex couples as a matter of important public policy. Sixteen such laws were passed earlier in 1996, but a greater number introduced in state legislatures were bottled up in committee or otherwise defeated, in one case through a courageous veto by Governor Roy Romer of Colorado. The New Jersey Senate's Judiciary Committee held hearings soon after the decision was announced and voted 6-0 to approve a bill called the "Marriage Protection Act" on Dec. 16. The bill would ban legal recognition of same-sex marriages performed in other states. _Philadelphia Inquirer_, Dec. 17. As the public discussion lengthened, some new realism was injected into commentary about the Full Faith & Credit issue (i.e., whether other states would have to recognize same-sex Hawaiian marriages by virtue of federal constitutional obligation). As Andrew Sullivan pointed out in a measured discussion in _The New Republic_'s Dec. 30 issue (pp. 15-16), there is little historic support for the assertion, repeated as a sort of mantra by opponents of same-sex marriage, that the constitutional will compel such recognition unless states take action to legislate against it. The Full Faith & Credit clause has not normally been relied upon by courts in determining whether, under particular circumstances, they should recognize out-of-state marriages that could not have been performed within the jurisdiction (such as common law marriages, marriages in which one or both parties would be considered under-age in the jurisdiction, or marriages between close blood relatives that would be forbidden within the jurisdiction). Furthermore, many of these cases arise for adjudication when one party to the marriage is deceased and the dispute relates to survivor benefits or estate matters; cases involving recognition of on-going marriages are rare. So the courts would be faced with questions of first impression in many jurisdictions, without any extensive history of Full Faith & Credit precedent to predict the outcome. Colorado District Judge Larry Naves, presiding over a suit by two taxpayers challenging the legitimacy of Denver's recently enacted domestic partnership benefits ordinance, ruled against the plaintiff's demand that the plan not go into effect pending trial of their claims. In his Dec. 19 ruling, Judge Naves characterized as "really weak" the case presented by the plaintiffs, who are claiming that the ordinance violates state law by illegally attempting to redefine marriage. "This appears to be a situation where a purely local issue was addressed by local legislation and there is no state law that conflicts with it," said Naves, according to a report in the _Rocky Mountain News_ (Dec. 20). Perot Systems has become the first Texas-based corporation to offer domestic partner benefits to same sex partners, effective Jan. 1. Also new on the DP bandwagon is McKinsey and Co. The city council in Alexandria, Virginia, a bastion of support for gay rights in an otherwise rather hostile state, approved a resolution on Dec. 14 asking the state legislature to repeal the state's anti-gay sodomy law, amend the hate crimes law to protect gays, revise the state insurance code to allow same-sex partners to be designated as beneficiaries on insurance policies, and amendment the human rights law to protect gays from discrimination. But one proposal struck the councillors as too much to ask; by a vote of 4-3, they refused to include a request to legalize same-sex marriages. _Washington Blade_, Dec. 20. The Lesbian and Gay Law Association of Greater New York announced in December that its Professional Services Committee has negotiated benefits plans including domestic partnership coverage that will be available to LeGaL members. A special mailing to LeGaL members will explain the benefits and provide an opportunity to apply. A.S.L. Louisiana Court Upholds Conviction in Homosexual Panic Case In _State v. Lewis_, 1996 WL 709183 (La. App. 2nd Cir. Dec. 11), the court affirmed a jury's conviction of the defendant for second degree murder, and a mandatory sentence life sentence without possibility of probation, parole or reduction of sentence. The defendant raised a variant of the homosexual panic defense. Police responded to 911 calls by neighbors of the victim, Jefferson, and found Lewis in the apartment. He gave a voluntary statement to them, alleging that he hit Jefferson with a heavy lamp in response to Jefferson's homosexual advances. Lewis's assignments of error were that the trial court should have granted a motion for a new trial, and that the trial court should have granted a post-verdict motion for acquittal. If Lewis was correct, the evidence was sufficient to convict, at most, of manslaughter, and not second degree murder. The appellate court upheld the trial court's denial of the motion for new trial as essentially within its sound discretion, and rejected the post verdict motion for acquittal because the evidence, taken in a light most favorable to the state, amply supported the verdict, and did not support Lewis's claim of heat of passion. Lewis had met Jefferson a month before and had accepted money from him at that time. He claimed that he met Jefferson at his own home the night of the murder and was driven to Jefferson's house to borrow some money to buy presents for his (Lewis's) girlfriend. He claimed that he did not know that Jefferson was a homosexual until Jefferson came on to him, at which time he went into a rage and beat Jefferson on the head with a lamp until Jefferson stopped moving. Lewis told police that he could not escape because he feared Jefferson would attack him if he (Lewis) attempted to open the door. Neighbors who called 911 said that they had heard the argument and struggle, heard Jefferson screaming for help and for the police, heard the door open, and heard another voice shout "Oh no you don't" and "come back here" before the door slammed one last time. Evidence admitted at trial showed that Jefferson died of blunt trauma wound to the head, and a stab wound to the heart. Lewis hadn't mentioned the stabbing to the police. On cross- examination, the medical examiner stated that, while other scenarios were possible, the nature of the wound was such that it most likely that Jefferson was stabbed by someone standing over him as he was lying on his back. Lewis denied having sex with Jefferson, but condoms were found on the living room table. An analysis of Lewis's jeans and boxer shorts indicated the presence of semen. Jefferson was found clad only in jeans, which were pulled down around his buttocks. While Lewis suffered some minor wounds, a substantial amount of blood was found at the scene, too much for Lewis's wounds to have been the source. His clothes were bloody, but his shoes were not. Jefferson's sister testified that the tennis shoes which Lewis was wearing at the time of his arrest were Jefferson's and that a bloody pair of tennis shoes found hidden in Jefferson's closet were not Jefferson's. Taken all together, this was not a difficult decision. S.K. Bay Area Scouts Take a New Stand on Homosexuality Responding to pressures from the city government and major charitable funders in the San Francisco Bay Area, the Bay Area Council of Boy Scouts has reportedly modified its policy to allow gay men and boys to participate in Scout activities provided they do not "openly advocate homosexuality." This attempt to replicate the Defense Department's "don't ask, don't tell" approach to the issue is phrased as follows in a policy memorandum leaked to the press: "The Boy Scouts of America does not ask prospective members about their sexual preference, nor do we check on the sexual orientation of boys who are already in scouting. We allow youth to live as children and enjoy scouting without immersing them in the politics of the day." The Council evidently hopes that this new policy will enable it to resume receiving funding that had been cut off or threatened as a result of the prior exclusionary policy. _San Francisco Examiner_, Dec. 10. A spokesperson for the Council claimed the policy had been cleared with the national office, but a spokesperson for the national office was quoted in an interview with the _New York Times_ (Dec. 19) as stating: "The fact is nothing, nothing has changed regarding our policy regarding homosexual members. We don't allow registration of avowed homosexuals." The California Supreme Court is presently considering an appeal in _Curran v. Mt. Diablo Council, Boy Scouts of America_, 29 Cal.App. 4th 192 (1994), in which a state court of appeal held that the Scouts are not a public accommodation subject to the non-discrimination requirements of the Unruh Civil Rights Act. A.S.L. Defense Department Reportedly Getting Tough on Universities The Defense Department has apparently signalled its intention to implement the newest version of the "Solomon Amendment" in the recent military appropriations bill, under which a university may be barred from virtually all federal financial assistance (including student loan money) if ROTC is excluded from the campus. This according to reports from the _Sacramento Bee_ (Dec. 20) about turmoil over the issue of ROTC at California State University at Sacramento. The president of the university reported met with officials of DoD and the Department of Education on a trip to Washington and received conflicting messages; from DoD, that implementation of the new requirements would come quickly; from DoEd that nothing will happen until regulations are issued in the spring. Either way, schools that have barred ROTC or military recruiters may be in for a rough time under the new regulations. A.S.L. Law & Society Notes Dismissing a challenge to the old military discharge policy, the U.S. District Court for Kansas reaffirmed its prior holding, on remand from the 10th Circuit, that the old policy offended neither the equal protection nor bill of attainder principles. _Walmer v. U.S. Department of Defense_, 1996 WL 717330 (Nov. 25). In this instance, plaintiff Joyce L. Walmer's counsel apparently filed no papers in opposition to the government's motion for summary judgment, so the court granted the motion, but explained the government's arguments. Any challenge to discharges under the old policy in the 10th Circuit are apparently precluded under _Rich v. Secretary of the Army_, 735 F.2d 1220 (10th Cir. 1984). Marc Smith and Michael Snell, a gay male couple living in New Hampshire, sued DeWolfe Simmonds Realtors, claiming that the real estate agency had "blacklisted" their home and allowed prospective purchasers to steal jewelry while viewing the property. Smith claimed that after confronting the agency about the alleged theft, a representative said she regretted having "gotten involve with you two queers." A Hillsborough County jury ruled in favor of the defendants, according to the _Boston Globe_, Dec. 1. Dale McCormick lost the primary for a U.S. House nomination in Maine, but she ended the year by becoming one of only a handful of openly-gay statewide officials in the nation when she was elected by the Maine legislature on Dec. 4 to a two-year term as Maine State Treasurer. McCormick will manage Maine's $3.2 billion annual budget. Other openly-gay statewide officials include: Ed Flanagan, recently reelected Vermont State Auditor; Sheila Kuehl, recently elected by her California Assembly colleagues to be their speaker pro tem (the first woman to hold that position), and Allan Spear, who has been president of the Minnesota Senate since 1993. _Washington Blade_, Dec. 13 and 20. The 1990 U.S. Census introduced questions that for the first time might be used to analyze the number of same-sex partner households in the nation. 1993 census data indicated that 4.6 percent of all unmarried-partner households were same-sex households; more refined data released in 1994 showed that 9.2 percent of unmarried partner households in the 20 largest cities were same-sex households. Now the Census Bureau has announced it will add the same questions to its Current Population Survey, an annual survey of a large sample of the population used to generate data in years intermediate to the decennial census. _Washington Blade_, Dec. 20. Gay politicos in Washington were delighted with President Clinton's appointment of retiring Maine Senator William Cohen, a Republican, as Secretary of Defense. Cohen voted for the Employment Non-Discrimination Act in September, and helped to repeal a clause in last year's defense appropriations bill that mandated the discharge of HIV+ service members. Human Rights Campaign rated Cohen 80 out of 100 on his votes on gay-related issues in the 104th Congress; Log Cabin Republicans rated him at 87 out of 100. _Washington Blade_, Dec.13. Last month we reported that U.S. District Judge John Shabaz (E.D.Wis.) had ruled in favor of some Christian students protesting having their student activity fees at the University of Wisconsin used to support organizations with which they disagreed, such as the lesbian and gay student group. The court's decision is still not available on electronic databases, but the _Wisconsin State_ reported Dec. 7 that the University of Wisconsin Board of Regents had voted to appeal the case to the 7th Circuit Court of Appeals. On Dec. 16, the _Capital Times_, a newspaper in Madison, Wisconsin, reported that the University of California had been operating under similar restrictions as a result of the California Supreme Court's 1993 decision in _Smith v. Regents of the University of California. The article includes an interview with Karen Kenney, director of student activities at UC-Berkeley, who said that the requirement to refund a portion of activity funds to protesting students had not been onerous, and that few students had applied to have their fees refunded based on political objections to particular campus groups. Frustrated after New Mexico's governor vetoed a hate crimes bill that included sexual orientation in 1995, the Albuquerque City Council passed its own Hate Crimes Ordinance on Dec. 16 by a vote of 7-2. The Ordinance only affects misdemeanors, since the city doesn't have legislative authority to deal with more serious crimes, but it adds the possibility of an additional penalty if the misdemeanor is committed out of animus on the basis of race, religion, color, national origin, ancestry, gender, sexual orientation or disability. _New Mexico Rainbow_, Dec. 17. Same old story? It's widely known that military women who refuse to have sex with male superiors are routinely brand "lesbians" and hounded out of the service. One such service member, Amy L. Barnes, refused to go quietly. Barnes filed suit against the Navy, claiming that officers on her ship violated the military policy by launching an investigation of "rumors" about her sexuality started by a male superior whose sexual advances she had rebuffed. Barnes's lawyers claimed that up to sixty women on board the ship were targeted in the resulting investigation, and "that two of Barnes's shipmates were told they would be jailed if they didn't accuse Barnes and two other women of being lesbians," according to a story published Dec. 14 in the _Virginian-Pilot_, a Norfolk, Virginia, newspaper. The Navy decided to settle the case, offering Barnes $12,000, "equal to what she would have gotten for educational aid under the GI Bill had she been allowed to complete her tour of duty." Barnes accepted the settlement. The Navy's Inspector General is reportedly investigating the way her superiors handled the investigation, according to an unidentified Naval official cited in the article. A.S.L. International Notes The Swedish Parliament on Dec. 10 approved a proposal by the government to specifically include homosexual refugees in the amended Aliens Act as a category for consideration of asylum claims. Claims by gay people for political asylum have been controversial recently in Sweden, where the government turned down some claims by gays who had escaped from Iran, where homosexuality is a capital offense. _Swedish Lesbian/Gay Politics_, published by the Swedish Federation for Gay and Lesbian Rights, No. 29/1996 (Nov. 21-Dec. 12, 1996). The Ontario Court of Appeals ruled that the Ontario Family Law Act's spousal support provisions violate constitutional requirements by excluding same-sex couples. _M v. H._. However, recognizing that simply adding same-sex couples to the coverage of the law without a full consideration of the consequences, the court held any remedy in abeyance for one year to give the provincial government an opportunity to cure the problem through legislation. If no change is made legislatively, the court will then order that the Act be construed to apply to same-sex couples. Our source is a press release issued by the Court, posted to the Internet by Canadian lawyers. The Austrian Parliament's upper chamber voted on Dec. 12 in favor of amendments to the Austrian penal code, including the total repeal of bans on pro-gay information or lesbian/gay associations. As the lower chamber already passed the measures on Nov. 27, they are expected to go into effect on March 1, 1997. A minor storm erupted in Israel over remarks made by President Ezer Weizman to a high school assembly. Responding to a question from a student, Weizman characterized gays and lesbians as "abnormal," parodied gay speech, and spoke in opposition to same sex marriage. The presidency is a largely ceremonial position in Israel. Nonetheless, the Israeli gay rights groups staged a demonstration outside Weizman's residence and called for his resignation. A few days later, Weizman met with gay leaders and issued an official apology for his remarks. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS Is HIV-Positive Status a "Disability"? Federal Court Says No Rejecting the evidence in legislative history that Congress intended to protect people with asymptomatic HIV-infection from discrimination under the Americans With Disabilities Act, U.S. District Judge Malcolm J. Howard (E.D.N.C.) ruled Oct. 3 that under controlling 4th Circuit precedent such individuals do not qualify as having a "physical impairment that substantially limits a major life activity." _Cortes v. McDonald's Corp._, No. 5-95-CV-827-H1 (11 AIDS Policy & Law No. 22, at p. 1, Dec. 27, 1996). Cortes worked at a McDonald's franchise in Fuquay-Varina, North Carolina. Cortes and McDonald's differ about the circumstances under which he quit his job, but Cortes alleged that after he told his manager that he was HIV+, he was denied the chance to receive management training necessary to advance on the job. Judge Howard found that there was no indication that McDonald's believed that Cortes was unable to perform his job due to his HIV-status, and said he was bound by the 4th Circuit's decision in _Ennis v. Nat'l Assoc. of Business & Educational Radio, Inc._, 53 F.3d 55 (4th Cir. 1995), in which the court held that HIV infection is not automatically a "disability" under the statute. Howard found that Cortes was not regarded by McDonald's as having a disability, thus eliminating an alternative method of finding coverage under the statute. This decision, which is not officially published, seems to run counter to a variety of other decisions holding HIV+ status to be a disability for various purposes under the ADA. A.S.L. EEOC Settles Important Employment Discrimination Case The Equal Employment Opportunity Commission has settled an important HIV discrimination case based on one of the first complaints filed under the Americans With Disabilities Act when it became effective in 1992. _EEOC v. Dolphin Cruise Line Inc._ (U.S.Dist.Ct., S.D.Fla., settlement announced Dec. 18). _New York Times_, Dec. 19. The case involved a man who was hired to be an entertainer on a cruise ship. The cruise line required HIV-testing of all new hires. The man had been sent a signed employment contract before the HIV+ results came back from his test. The cruise line then purported to cancel the employment contract, claiming that the entertainer would pose a significant risk of harm to himself or others because he was HIV+. The settlement, under which the complainant receives $90,000 in damages and the cruise line agrees both to abandon HIV-testing of applicants and employees and to initiate appropriate training and non-discrimination policies, follows on a decision on a summary judgment motion issued over the summer by District Judge Wilkie D. Ferguson, Jr., holding that the defendants had "failed to demonstrate, by other than speculation and stereotyping, that the health risk posed in the particular work environment is significant." The EEOC had sued both Dolphin Cruise Lines and the subcontractor that hired the entertainer, American Entertainment Productions. A.S.L. Federal Court Rules Against HIV+ Prisoner on Privacy Claim In _Quinones v. Howard_, 1996 WL 717360 (U.S.Dist.Ct., W.D.N.Y. Dec. 11), inmate Evan Quinones charged prison employees with violating his constitutional rights by disclosing, against his will, that he was HIV+. The Department of Correction defendants argued that Quinones's action was time-barred and that they were shielded by qualified immunity. District Judge Larimer refused to dismiss the complaint based on the statute of limitations; however, he granted dismissal applying the doctrine of qualified immunity pursuant to 42 U.S.C. sec. 1983. On or about June 27, 1992, Quinones alleges that he suffered an injury while performing his prison duties which caused him to bleed profusely. Quinones further claimed that prison guard Michael Marinaccio warned two nearby prisoners, "Don't touch that blood cause that guy has the Aides Virus (sic)." Quinones claims that he wrote up a complaint based on the incident and handed it to a correction officer in November or December, 1994, for mailing to the court. The complaint was not mailed until January, 1995. Noting that the complaint was dated November 11, 1994 and the affirmation of service of service was notarized on December 2, 1994, the court held that it was timely filed within the meaning of Fed.R.Civ.P. 5(e). The court asserted that in order to satisfy the statute of limitations, a prisoner need only submit the complaint to prison officials within the statutory period. Concerning the issue of qualified immunity, the court explained, state officials are not liable for civil damages if they can show that their conduct "did not violate a clearly established. . . constitutional right of which a reasonable person would have known." The court stated that the constitutional right in question must be established by either the Supreme Court or the applicable circuit court. According to Judge Larimer, district court decisions, by themselves, are not sufficient to establish constitutional rights. In _Doe v. City of New York_, 15 F.3d 264 (2nd Cir. 1994), the Court of Appeals for the 2nd Circuit recognized an individual's right to protect the confidentiality of his or her HIV status. However, the _Quinones_ court refused to apply _Doe_. It stated that because _Doe_ was decided two years after the incident in question in this case occurred, it was not a "clearly established" constitutional right at the pertinent time. In addition, the court stated that _Doe_ was distinguishable because the plaintiff in _Doe_ was not an inmate and that "inmates do not possess all the rights of free persons." Furthermore, the court refused to apply a number of district court decisions holding that inmates have a constitutional right to protection from the unauthorized disclosure of their HIV status. The court declared that these rulings "are not authoritative as precedent and therefore do not establish the duties of the parties." C.W. Federal Jury Award in AIDS Discrimination Case Generates Argument on Damage Caps A decision by a federal jury in Buffalo, New York, to award $1 million in punitive damages to a man discharged due to AIDS has generated an argument about the applicability of ADA damage caps in cases where there is a supplementary state discrimination law claim. On Oct. 18, 1996, a jury awarded total damages of $1.4 million to Danny Greenway, who claimed he was discharged by the Buffalo Hilton Hotel a bartender because he has AIDS. The jury awarded $1 million in punitive damages, $65,000 in backpay, $50,000 for past and future cost of health insurance, and $324,000 for past and future medication costs. Oral argument was scheduled for Dec. 18 on post-trial motions filed by Hilton, including a motion to reduce compensatory and punitive damages to $200,000, the ADA damage cap. Greenway has applied for attorneys fees and frontpay in the amount of $600,000. The New York Human Rights Law, under which Greenway had filed a supplementary claim, has no cap on compensatory damages but does not allow for punitive damages, according to several state court rulings. Greenway is arguing that to the extent the ADA cap applies, the employer, a Hilton franchisee, should be treated as a larger employer aggregating all its hotels and thus the cap should be $300,000. Hilton is claiming that its exposure under ADA is limited to $200,000 because the franchise owner of the Buffalo hotel (which owns three other hotels) has a total payroll of over 500. _Greenway v. Buffalo Hilton Hotel_, No. 94-CV-878A (W.D.N.Y.). BNA _Daily Labor Report_ No. 230, 11/29/96). A.S.L. Pennsylvania Appeals Court Says HIV Information is Relevant in Damage Calculations On April 18, 1991, Louis Aiello fell and injured himself as a result of a damaged concrete step at the Walnut/Locust Street subway stop in Philadelphia. The injury caused a tibial plateau fracture of his left leg, which required surgery, as well as other injuries to his knee and foot. At the time of the accident, Aiello had AIDS-Related Complex symptoms and had known he was HIV+ since 1986. Aiello sued the Southeastern Pennsylvania Transportation Authority (SEPTA) for his injuries. During the trial, the trial court excluded all the evidence of Aiello's HIV and AIDS-related illnesses. The trial court determined that pursuant to the Confidentiality of HIV-Related Information Act (Act), 35 P.S. sec. 7602, the evidence of Aiello's HIV and AIDS-related illness did not fall within the compelling need exception of the Act. The Act assures that information gained as a result of HIV testing will remain confidential. The Act, nevertheless, still provides for the disclosure of confidential HIV-related information if the person seeking to disclose the information has a compelling reason to do so. SEPTA appealed the lower court's ruling, arguing that the money judgment obtained by Aiello against SEPTA contained payments for future lost wages based on the average life expectancy of a 36-year-old male. Since the jury never heard any evidence of Aiello's HIV infection, they had no way of knowing that his life expectancy was less than that of an average 36-year-old man. On appeal, the Commonwealth Court of Pennsylvania, in a decision written by Judge Jim Flaherty, found that given the nature of the damages awarded in a personal injury case, SEPTA had a compelling reason to introduce evidence of Aiello's HIV infection to the jury. _Aiello v. Southeastern Pennsylvania Transportation Authority_, 1996 WL 717038 (Dec. 13). The appellate court applied a balancing test in which it weighed the need for disclosure against the privacy interest of the individual. The court noted that Aiello voluntarily brought suit against SEPTA, asserting claims for past, present and future quality of life and loss of wages. As such, Aiello himself raised the issue of his life expectancy and therefore cannot use the Act to prevent the jury from making an accurate determination of his life expectancy. T.V.L. AIDS Law & Society Notes The initial euphoria surrounding the new multi-drug treatments including protease inhibitors has begun to abate, as some doctors report less success with these treatments in the "real world" than has been achieved in early clinical studies. A lengthy article on AIDS treatment issues in the Dec. 13 issue of the _Washington Blade_ by top investigative reporter Lisa Keen points out that some physicians are reporting a significant portion of their AIDS patients can't tolerate the new drugs, can't stick to the difficult medication regimen, or show no signs of improvement. While it seems true that for some people with AIDS the new treatments have produced near- miraculous results in enhanced health and low (to the point of virtually undetectable) viral load, the new treatments are not a universal cure, and fears persist that the virus may evolve to accommodate these medications as it has done with prior medications. While hope remains strong that the protease inhibitors may prove more effective in the long run than did AZT and its nucleoside analogues, the word now is watchful waiting. * * * In its "Person of the Year" issue, _Time Magazine_ saluted Dr. David Ho, director of the Aaron Diamond AIDS Research Foundation, who is responsible for several major breakthroughs in AIDS research. The accompanying articles confirmed the substance of the _Blade_ story: the new medications may not work for as many as a third of those who have tried them, but for some they have produced seemingly miraculous results, raising T-cell counts, lowering "viral load" to the undetectable level, and clearing up various opportunistic infections. On Dec. 17 the White House issued a statement from President Clinton setting six major goals for federal AIDS activities: developing a cure and a vaccine; reducing and eventually eliminating new infections; guaranteeing care and services for HIV+ people; fighting AIDS-related discrimination; translating scientific advances quickly into improved care and prevention; and providing continued support for international efforts to combat AIDS. Significantly missing from the listed goals was any specific reference to needle-exchange programs, a sore point with AIDS activists who maintain argue that the administration is allowing drug-war politics to get in the way of effect strategies to reduce HIV transmission among IV drug users. Spending for federal AIDS programs has risen in each year of the Clinton administration. A.S.L. _Announcements:_ The Duke Journal of Gender Law & Policy has announced a conference titled "HIV Law and Policy: Ensuring Gender Equitable Reform," to be held Feb. 21 and 22 at Duke University. For more information about the conference or the journal, call 919-613-7223 or send e-mail to: djg@student.law.duke.edu. PUBLICATIONS NOTED LESBIAN & GAY & RELATED LEGAL ISSUES: _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) (Committees on Lesbians and Gay Men in the Legal Profession; Sex and Law; and Civil Rights). Cantor, Norman L., _Discarding Substituted Judgment and Best Interests: Toward a Constructive Preference Standard for Dying, Previously Competent Patients Without Advance Instructions_, 48 Rutgers L. Rev. 1193 (Summer 1996). Coleman, Arthur L., and Jonathan R. Alger, _Beyond Speech Codes: Harmonizing Rights of Free Speech and Freedom from Discrimination on University Campuses_, 23 J. Coll. & Univ. L. 91 (Summer 1996). Eskridge, William N., Jr., _Outsider-Insiders: The Academy of the Closet_, 71 Chi-Kent L. Rev. 977 (1996). Ettelbrick, Paula L., _Wedlock Alert: A Comment on Lesbian and Gay Family Recognition_, 5 J. L. & Policy (Brooklyn L.S.) 107 (1996). Jacobs, Daniel J., _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). Stefancic, Jean, _The Law Review Symposium: A Hard Party to Crash for Crits, Feminists and Other Outsiders_, 71 Chi-Kent L. Rev. 989 (1996). Stefancic, Jean, and Richard Delgado, _Outsider Scholars: The Early Stories_, 71 Chi-Kent L. Rev. 1001 (1996) (anecdotage about attempts by pioneers in "outsider" fields of law, such as gay legal scholars, to gain respect in the legal academy). Sunstein, Cass R., _Leaving Things Undecided_, 110 Harv. L. Rev. 5 (Nov. 1996) (leading constitutional scholar advocates "judicial minimalism," the avoidance of socially contentious issues by courts - specific discussion of same-sex marriage, as well as a critique of _Romer_ and its impact on the continued viability of _Hardwick_). _Student Notes & Comments:_ McFarland, Deborah N., _Beyond Sex Discrimination: A Proposal for Federal Sexual Harassment Legislation_, 65 Fordham L. Rev. 493 (Oct. 1996) (argues that Congress should pass a sexual harassment bill covering all work-place sex-related harassment). The Supreme Court: 1995 Term: I. Constitutional Law: B. Equal Protection: 1. Discrimination Based on Sexual Orientation: _Romer v. Evans_, 110 Harv. L. Rev. 155 (Nov. 1996). _Specially Noted:_ Donald G. Casswell, Professor of Law at the University of Victoria, Canada, has produced a treatise titled _Lesbians, Gay Men, and Canadian Law_ (Emond Montgomery, Toronto, 1996), which provides a comprehensive discussion of lesbian and gay legal issues in the context of Canadian law. Indeed, the treatment has a scholarly depth unmatched by any work we know about American law on the subject. This work could well serve as the model for a similar project on American law. Information on ordering can be obtained from the publisher at 416- 975-3925 (e-mail: emplaw@io.org). _Specially Noted:_ The _National Law Journal_ featured an op-ed article by Prof. Deborah L. Rhode (Stanford) in its Dec. 16 issue titled: "Anti-Gay Prejudice Persists in Legal Workplace." Rhode summarized the results of several studies conducted by various bar associations, and called for courts, bar associations and all legal employers to adopt non-discrimination policies and enforce them. AIDS & RELATED LEGAL ISSUES: Tucker, Bonnie Poitras, _Application of the Americans With Disabilities Act (ADA) and Section 504 to Colleges and Universities; An Overview and Discussion of Special Issues Relating to Students_, 23 J. Coll. & Univ. L. 1 (Summer 1996). _Student Notes & Comments:_ Crandall, Erika J., _Confusion in the Courts: What to Do With HIV-Positive and AIDS-Infected Public Employees_, 10 J.L. & Health 153 (1995-96). MacGillis, James C., _The Dilemma of Disparity: Applying the Federal Sentencing Guidelines to Downward Departures Based on HIV Infection_, 81 Minn. L. Rev. 229 (Nov. 1996). O'Toole, Erin M., _HIV-Specific Crime Legislation: Targeting an Epidemic for Criminal Prosecution_, 10 J.L. & Health 183 (1995-96). Schulman, Eric L., _Sleeping With the Enemy: Combatting the Sexual Spread of HIV-AIDS Through a Heightened Legal Duty_, 29 John Marshall L. Rev. 957 (Summer 1996). EDITOR'S NOTE CORRECTION: Last month we incorrectly identified incumbent U.S. House member Jim Kolbe as a Democrat. He is a Republican. * * * 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.