LESBIAN/GAY LAW NOTES
ISSN 8755-9021 Summer 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@nyls.edu

Contributing Writers: Steven Kolodny, Esq., New York; Todd V. Lamb,
Esq., New York; Mark Major, Esq., New York; Seth M. Rosen, NY Law
School Student; K. Jacob Ruppert, Esq., New York; Dirk Williams,
Esq., Boston.

Circulation: Daniel R 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   


Montana Supreme Court Finds Same-Sex Sodomy Law Violates State
Constitution; Unanimous Court Divided Over Theory of the Case

The Montana Supreme Court affirmed a decision by Montana District
Judge Jeffrey M. Sherlock, finding the state's felony same-sex
sodomy law violative of the Montana Constitution as applied to
adult consensual sex conducted in private. __Gryczan v. State__,
No. 96-202 (July 2). (The decision had not yet appeared on
electronic databases as of our press date.)  Although all seven of
the justices agreed that the law is unconstitutional as applied to
consensual sex between adults in private, Chief Justice J.A.
Turnage wrote a separate opinion concurring and dissenting,
disagreeing about the theory the court should use to invalidate the
statute.  As a result of this decision, the number of states in
which lesbians, gay men and bisexuals may be subject to prosecution
for adult consensual sex in private is now reduced to 19 or 20,
depending upon how one counts Massachusetts, in which decisions by
the state's highest court cast considerable doubt upon the
enforceability of various sex crimes laws against consenting adults
in private.  

The Montana law, MCA sec. 45-5-505, is at once broad and narrow;
while it outlaws all "sexual contact or sexual intercourse," going
beyond the more typical ban specifically of anal or oral sex, it
imposes the ban only on same-sex couples, thus being narrower than
most of the remaining sodomy laws in effect in the U.S.  The law
makes no distinction on its face between public or private conduct,
or between consensual or non-consensual sex.  The penalty for
violation of the statute is a prison term for up to 10 years or a
fine of up to $50,000 or both.  

Six Montana citizens challenged the statute in a test case brought
by attorneys Holly J. Franz of Helena, Montana, and Rosemary
Daszkiewicz of Seattle, Washington, on behalf of the Women's Law
Center.  Amicus briefs in support of the plaintiffs were filed by
the Women's Law Caucus, the Montana Public Health Association,
Lambda Legal Defense & Education Fund, and the ACLU Lesbian and Gay
Rights Project.  A group calling itself Montana Citizens for
Decency Through Law filed an amicus brief in support of the
statute.

In his earlier ruling, Judge Sherlock found the law violative of
both the state's explicit protection for privacy and of equal
protection of the laws.  Writing for the supreme court, Justice
James C. Nelson explained that the court had found the statute
violative of the state constitution's privacy provision, and thus
would not rule on the equal protection claim.  A significant
portion of the decision is devoted to the plaintiffs' standing to
bring suit, in light of the lack of any indication that the statute
has ever been enforced against participants in consensual, private
adult sex.  Characterizing the law as "a criminal law aimed
specifically at one group of citizens," and noting that the
legislature had recently refused to repeal it, Nelson found that
the plaintiffs could assert a fear of future prosecution despite
the lack of any past record of such.  Agreeing with Sherlock,
Nelson also found that the plaintiffs adequately showed that the
very existence of the statute imposed a psychological injury and
stigmatizing effect on lesbian and gay Montanans, and that the
statute might be used against them collaterally as a justification
of discrimination and as a spur to hate crimes.

Turning to the merits, Nelson emphasized that the Montana
constitution, unlike the federal constitution, has an express
privacy provision.  Nelson referred to federal cases in describing
two strands of constitutional privacy theory: the 4th Amendment
strand, focusing on whether the individual as a reasonable
expectation of privacy in resisting the government's physical
intrusion into her home or private affairs, and the 14th Amendment
due process strand, pertaining to personal autonomy in making
important life decisions, as exemplified by cases on contraception,
abortion and the like.  The U.S. Supreme Court refused to extend
this second strand of privacy cases to "homosexual sodomy" in
__Bowers v. Hardwick__, 478 U.S. 186 (1986).  "Regardless of
whether __Bowers__ was correctly decided," wrote Nelson, "we have
long held that Montana's Constitution affords citizens broader
protection of their right to privacy than does the federal
constitution."

"Respondents have an expectation of privacy in the activities
proscribed by the statute since `a person's decision as to sexual
matters is probably one of the most private areas of a person's
life," and even though many in society might disapprove of
homosexual activity, "that is not to say that society is unwilling
to recognize as reasonable an expectation of privacy as to
consensual, adult, private, same-gender sexual conduct. . . .
Quite simply, consenting adults expect that neither the state nor
their neighbors will be cohabitants of their bedrooms.  Moreover,
while society may not approve of the sexual practices of
homosexuals, or, for that matter, sodomy, oral intercourse or other
sexual conduct between husband and wife or between other
heterosexuals, that is not to say that society is unwilling to
recognize that all adults, regardless of gender or marital state,
at least have a reasonable expectation that their sexual activities
will remain personal and private."  

Having found that the "reasonable expectation" strand of privacy
theory covers the case, Nelson found that the personal autonomy
strand applies as well, noting that "regardless of whether same-
gender, consensual sexual conduct is accorded federal constitution,
personal-autonomy privacy protection as a fundamental right or as
a right implicit in the concept of ordered liberty, Montana's
Constitution. . . explicitly protects individual or personal-
autonomy privacy as a fundamental right by its placement in the
Declaration of Rights.  In fact, it is hard to imagine any activity
that adults would consider more fundamental, more private and,
thus, more deserving of protection from governmental interference
than non-commercial, consensual adult sexual activity."

Nelson then evaluated and rejected each of the state's arguments as
to its "compelling interest" requiring it to outlaw the conduct in
question.  The argument that the sodomy law is useful in the fight
against AIDS was quickly rejected: "Despite the two-plus decades
that the statute [in its current form] has been in effect, HIV
infection is currently a significant cause of illness and death in
this State, and AIDS is not the sixth leading cause of death among
middle-aged Montanans," wrote Nelson, pointing out that an amicus
brief from the Montana Public Health Association argued against the
AIDS rationale, and that, in any event, its relevance to lesbians
was questionable.  Also, Nelson noted that Montana has taken other
steps to cope with AIDS that are more directly focused on
education.

Nelson also rejected the public morality argument, which had been
accepted by the U.S. Supreme Court in __Bowers__.  "We do not deny
the legislature's public policy-making power, nor do we dispute
that public policy and the laws implementing it may often reflect
majority will and prevailing notions of morality.  Nevertheless, it
is axiomatic that under our system of laws, the parameters of the
legislature's policy-making power are defined by the Constitution
and that its ability to regulate morals and to enact laws
reflecting moral choices is not without limits. . . .  It is not
the judiciary's prerogative to condone or condemn a particular
lifestyle and the behaviors associated therewith upon the basis of
moral belief.  That said, it does not follow, however, that simply
because the legislature has enacted as law what may be a moral
choice of the majority, the courts are, thereafter, bound to simply
acquiesce.  Our Constitution does not protect morality; it does,
however, guarantee to all persons, whether in the majority or in a
minority, those certain basic freedoms and rights which are set
forth in the Declaration of Rights, not the least of which is the
right of individual privacy. . . .  It is, perhaps, one of the most
important rights guaranteed to the citizens of this State, and its
separate textual protection in our Constitution reflects Montanans'
historical abhorrence and distrust of excessive governmental
interference in their personal lives.  That such interference is
because the majority wills it is no less pernicious."

Thus, the court concluded that the statute should be held
unconstitutional "as applied to Respondents and other consenting
adults engaging in private, same-gender, non-commercial, sexual
conduct."

All concurred fully in this opinion except Chief Justice Turnage,
who was concerned that the court's expansive treatment of the
privacy concept might open the door further than Turnage would like
to other personal autonomy claims, most explicitly the claimed
right to assistance from a physician in committing suicide.  Since
the Montanan sodomy law applied only to same-sex couples, Turnage
preferred to review the statute under Equal Protection theory,
derived both from the federal and state constitutions.  

"To be treated equally under the law is a far broader
constitutional right, together with the right of due process, than
any other constitutional guarantee in either the federal or state
constitution," Turnage insisted.  Noting that the court had found
(and Turnage agreed) that the statute bore "no rational
relationships to either of its suggested governmental purposes," it
failed the test of equal protection.  "As an expression of societal
mores, the statute is both overbroad and underinclusive, forbidding
consensual intimate touching between homosexuals without any
evidence that such conduct was historically forbidden, yet
permitting heterosexuals to engage in conduct long deemed
inappropriate by some segments of society, such as anal sex, sex
outside of marriage, and non-procreative sex. Furthermore, the
State has not demonstrated, nor can it demonstrate, that the
purpose of [the statute] was or is to protect public health.  Not
one of the three public health experts who testified in this case
suggested that [the statute] offered any benefit to the public
health."

The Montana Supreme Court's decision, in its implicit hostility to
__Bowers v. Hardwick__, vindicates the successful litigation
strategy previously pursued in Kentucky and Tennessee, and with
partial success in Texas, where procedural problems got in the way
of a disposition on the merits by the highest court.  Cases from
the "deep south" have been less successful, although that may be
more attributable to their arising from prosecutions for public
solicitation than to an ultimate predisposition of those courts on
the merits of the challenge.  The successful test case approach in
Montana and Tennessee, avoiding the messiness of an actual
prosecution, may provide a template for legal activists in the
remaining states, particularly those few with same-gender-only
sodomy laws, although the usefulness of this approach needs to be
tempered by careful consideration of state standing and
jurisdictional rules, as demonstrated by the Texas experience. 
A.S.L.

LESBIAN/GAY LEGAL NEWS 

9th Circuit Rules for Russian Lesbian on Asylum Petition

In a critically important ruling for lesbian and gay applicants for
asylum in the United States, the U.S. Court of Appeals for the 9th
Circuit granted the appeal of a Russian lesbian, reversing an order
of the Board of Immigration Appeals in __Pitcherstkaia v.
Immigration and Naturalization Service__, 1997 WL 342902 (June 24). 
This is apparently the first asylum application by a lesbian or gay
applicant to advance to the federal appellate level and generate a
published opinion.  The key holding of the case is that the "alien"
applying for asylum does not have to prove that her alleged
persecutor(s) in her home country harbors a subjective intent to
harm or punish her.

Alla Pitcherskaia entered the US on a 6-month tourist visa in 1992,
and filed an asylum application before the visa expired.  Reciting
the political histories of her father, an anti-communist activist
who died in prison, and herself, she claimed fear of future
persecution based on her anti-Communist activities.  Of course, by
that time the Communist regime was collapsing, and the Asylum
office, while finding her story credible, determined that she
failed to establish a well-founded fear of future persecution and
ordered deportation since she had by then overstayed her visa.  

Renewing her asylum request, Pitcherskaia revealed for the first
time that she was a lesbian, and claimed future fear of persecution
as a member of a particular social group: Russian lesbians.  At a
hearing, she recited her history of lesbian activism, police
surveillance of her, threats that she would be subjected to shock
treatments to "cure" her of lesbianism, and documentation that
Russian officials were repeatedly demanding that she submit to
interrogation and "treatment."  The Asylum Office did not expressly
rule on her credibility, but again concluded that she had not
established eligibility for asylum or withholding of deportation. 
On appeal, the Board of Immigration Appeals affirmed this ruling,
concluding that she was not subject to persecution because the
Russian authorities did not intend to harm her, but rather intended
to "cure" her lesbianism.  The Board also concluded that social
changes in the former Soviet Union made it unlikely that she would
be subjected to future persecution.  BIA Chairman Schmidt
dissented, finding that Pitcherskaia met the criteria for asylum.

Writing for the court, Judge Betty Fletcher agreed with Chairman
Schmidt, finding that the law did not require an asylum applicant
to prove that her persecutors intended to harm her.  "The objective
component [of the statutory test] requires that the alien establish
a reasonable fear of persecution by credible, direct, and specific
evidence," wrote Fletcher.  Although changing conditions in a
country might undermine the conclusion that past persecution would
continue in the future, the BIA bore the burden of showing the
significance of such change, because an alien who establishes past
persecution raises a presumption that it will continue.  

Focusing on the issue of proving persecution, Fletcher pointed out
that persecution has been defined by the courts as "the infliction
of suffering or harm upon those who differ. . . a way regarded as
offensive. . . This definition of persecution is objective, in that
it turns not on the subjective intent of the persecutor by rather
on what a reasonable person would deem `offensive.'  That the
persecutor inflicts the suffering or harm in an attempt to elicit
information, . . . for his own sadistic pleasure, . . . to `cure'
his victim, or to `save his soul' is irrelevant.  Persecution by
any other name remains persecution."  

Turning specifically to Pitcherskaia's petition, Fletcher
concluded: "The fact that a persecutor believes the harm he is
inflicting is `good for' his victim does not make it any less
painful to the victim, or, indeed, remove the conduct from the
statutory definition of persecution.  The BIA majority's
requirement that an alien prove that her persecutor's subjective
intent was punitive is unwarranted.  Human rights laws cannot be
sidestepped by simply couching actions that torture mentally or
physically in benevolent terms such as `curing' or `treating'
victims."

The case was remanded to the BIA for reconsideration, the court
commenting that is was expressing "no view on whether the evidence
established a valid claim of asylum when the appropriate definition
of persecution is applied."

Pitcherskaia was represented on appeal by Ignatius Bau, a leading
immigration practitioner in San Francisco, and Suzanne Goldberg,
staff attorney at Lambda Legal Defense & Education Fund.  A.S.L.

District Court Strikes Down "Don't Ask, Don't Tell" Policy in
Lambda/ACLU Test Case

Ruling on remand from the U.S. Court of Appeals for the 2nd
Circuit's decision in __Able v. United States__, 88 F.3d 1280
(1996), U.S. District Judge Eugene H. Nickerson (E.D.N.Y.) found
that the policy violates the equal protection requirement of the
5th Amendment by imposing different rules on homosexual and
heterosexual service members in a decision announced on July 2. 
(The decision had not appeared on electronic databases as of our
press date.)  Ultimately finding that the only real justification
for the policy was anti-gay prejudice, Nickerson characterized the
conditions imposed on lesbian, gay and bisexual service members by
the policy as "degrading and deplorable."  Shortly after the
decision was announced, Attorney General Janet Reno stated, in
response to press inquiries, that the Justice Department would
appeal to the 2nd Circuit.

The case began shortly after the government codified the "don't
ask, don't tell" policy that had been hammered out between the
Clinton Administration and Congressional leaders during 1993. 
Lambda Legal Defense Fund and the American Civil Liberties Union's
Lesbian and Gay Rights Project collaborated on constructing a test
case, bringing forward plaintiffs from each of the uniformed
services who were willing to "come out" in order to challenge the
policy.  

Under the policy announced in 10 U.S.C. sec. 654(b), lesbians, gay
men and bisexuals in the service are subject to discharge under two
distinct rules: Under subsection (b)(1), they can be discharged for
engaging in, or soliciting another to engage in, any "homosexual
acts," unless they can prove that they do not have a "propensity or
intent to engage in homosexual acts."  "Homosexual acts" are
broadly defined to include virtually any physical conduct with
another person of the same sex that would produce sexual
gratification, and, as Nickerson noted, could be as innocuous as
holding hands.  Under subsection (b)(2), any service member who
says that he or she is gay is subject to discharge, unless they can
prove that they do not have a "propensity or intent to engage in
homosexual acts."

In his first ruling on the merits of the case, Nickerson had found
that the six class members, none of whom had admitted engaging in
homosexual conduct, lacked standing to challenge subsection (b)(1). 
Ruling on their challenge to subsection (b)(2), he found a 1st
Amendment violation of freedom of speech.  The 2nd Circuit
reversed, finding that if (b)(1) is constitutional, then the
military can impose the requirements of (b)(2); consequently, the
constitutionality of (b)(2) depends on the constitutionality of
(b)(1), and the plaintiffs have standing to challenge (b)(1).  So
holding, the circuit court remanded the case to Nickerson for a
direct consideration whether (b)(1) is constitutional.

Here, the Supreme Court's 1996 decision in __Romer v. Evans__, 116
S.Ct. 1620, became crucial to the case.  Nickerson characterized
__Romer__, in which the Court struck down Colorado Amendment 2 as
violating the Equal Protection Clause of the 14th Amendment, as
follows: "That case established that government discrimination
against homosexuals in and of itself violates the constitutional
guarantee of equal protection.  Implicit in this holding is a
determination that such discrimination, without more, is either
inherently irrational or invidious."  Since the policy treats
homosexuals differently from heterosexuals in what it allows them
to do, the focus turns to whether the government can provide a
sufficient justification to meet the requirements of equal
protection.

After giving a capsule history of societal attitudes towards
homosexuality and of the military's history of treatment of this
issue, Nickerson mentioned recent testimony by military leaders
about the meritorious service rendered by homosexual service
members.  Nickerson then noted that the restrictions of the policy
applied only to homosexuals, but that "military law proscribes a
broad range of sexual conduct without regard to the actor's sexual
orientation," including a gender-neutral sodomy ban, as well as
bans on improper fraternization (sexual relationships) between
service members, rape (also gender-neutral), and "conduct
unbecoming an officer and a gentleman" [or gentlewoman], and other
provisions along similar lines.  Thus, the military has in place a
wide range of rules to prohibit sexual conduct that might be seen
as disruptive of morale and good order, none of which is directly
challenged by the plaintiffs.

"Given the admitted fact that homosexuals are no more likely than
heterosexuals to violate provisions of the Military Code," a point
conceded by the government, "there was no need to add a further
sanction as a deterrent to sexual misconduct, and the government
does not argue otherwise," wrote Nickerson.  The broad definition
of "homosexual act" "enables the Armed Forces to dismiss someone
who, for example, kisses or holds hands off base and in private or
has done so before entering the service," explained Nickerson.  "No
such sanction is imposed on a heterosexual who, with the same
purpose, does the same thing with someone of a different sex." 

"It is hard to imagine why the mere holding of hands off base and
in private is dangerous to the mission of the Armed Forces if done
by a homosexual but not if done by a heterosexual," wrote
Nickerson.  "Given the government's concessions, the discriminatory
prohibition against holding hands cannot have been designed as a
prophylactic to reduce still further the chance that a homosexual
will violate the military law prohibiting sodomy, rape, harassment,
or lewd and lascivious behavior.  The obvious basis for defining
`homosexual act' to include an act such as holding hands was not
because the act is inherently dangerous but because of what the act
says about the actor, namely, `I have a homosexual orientation.'" 
Clearly, the policy is intended to discriminate against persons of
such orientation.

Before evaluating the government's justifications for the policy,
Nickerson notes the doctrine of deference to military judgment in
personnel matters, but points out that such judgments are not
exempt from "the constitutional imperative of equal protection."

The government provides three justifications: fostering unit
cohesion, promoting the privacy of heterosexual service members,
and reducing sexual tensions.  Nickerson found, in effect, that all
three of these justifications boiled down to just one thing:
catering to the presumed anti-gay prejudices of heterosexual
service members.  Nickerson labels the government's explanation for
its first justification as "an outright confession that `unit
cohesion' is a euphemism for catering to the prejudices of
heterosexuals" and quotes chapter and verse from the testimony of
military officials before Congress when the policy was being
debated.  

"The private prejudices of heterosexual service members are
illegitimate reasons for government-sanctioned discrimination
against gay and lesbian service members," wrote Nickerson, quoting,
ironically enough, from an opinion by one of the Supreme Court's
most outspoken homophobes, the former Chief Justice Warren Burger,
who wrote in __Palmore v. Sidoti__, 466 U.S. 429 (1984): "The
Constitution cannot control such prejudices but neither can it
tolerate them.  Private biases may be outside the reach of the law,
but the law cannot, directly or indirectly, give them effect.
`Public officials sworn to uphold the Constitution may not avoid a
constitutional duty by bowing to the hypothetical effects of
private. . . prejudice that they assume to be both widely and
deeply held."  Nickerson also insisted that imposing silence on
homosexual service members will not foster unit cohesion, but
actually the opposite, since heterosexual service members know that
gays are serving even if they don't know which members are gay.  If
unit cohesion will be destroyed by heterosexuals knowing that gays
are present, an elaborate masquerade about who is gay won't cure
the "problem."

The same rationale blasts the privacy argument out of the water. 
If heterosexual service members' "privacy" is invaded by having
known gays bunk with them or shower with them, how is it any less
invaded by having "secret" gays present, under a system where
everybody knows that they are there but they can't identify
themselves?  Nickerson similarly makes short work of the "sexual
tension" argument, pointing out that the government has provided no
basis for believing that homosexual service members are more likely
than heterosexual service members to stimulate sexual tensions by
acting on their attractions to other service members.  (Indeed, it
is ironic that the government persists in making these arguments in
light of the ongoing scandal about heterosexual harassment in the
military, although Nickerson is too polite to say so.)  "The
illogic of the arguments based on privacy and sexual tension
further reveals the purpose of the Act to acquiesce in, indeed
encourage, the animosity of some heterosexuals toward homosexuals
in the vain hope those heterosexuals are misled into believing no
homosexuals are serving with them."

Nickerson's empathy with lesbians, gay men and bisexuals serving in
the Armed Forces is illustrated by the next part of the decision,
in which he imagines what it must be like for a homosexual service
member to serve under this policy.  "For the United States
government to require those self-identifying as homosexuals to hide
their orientation and to pretend to be heterosexuals is to ask them
to accept a judgment that their orientation is in itself
disgraceful and they are unfit to serve.  To impose such a
degrading and deplorable condition for remaining in the Armed
Services cannot in fairness be justified on the ground that the
truth might arouse the prejudice of some of their fellow members."

The next section of the decision is rather puzzling.  Having
already held that the policy is based solely on prejudice and is
not rationally related to the government's articulated interests,
Nickerson could just stop.  But instead, he produced a discussion
of factors that the courts have used to determine whether to focus
heightened scrutiny on discriminatory legislation, observing that
neither the Supreme Court in __Romer__ nor the 2nd Circuit in this
case had discussed whether heightened scrutiny should be applied to
anti-gay policies, coming to no firm conclusion, and really going
nowhere with the discussion, other than to conclude, once again,
that the military policy is motivated by anti-gay prejudice. 
Nickerson concluded with brief sections noting that his decision
does not affect the gender-neutral sexual relations of the Code of
Military Justice, that there is historic precedent in the racial
desegregation of the military for imposing equal treatment
requirements, and attempting to distinguish recent decisions in
other circuits upholding the policy (on the ground that one case
involved admitted conduct and two others dealt solely with the
"don't tell" part of the policy).  Ultimately, Nickerson declared
that the policy violates both the 1st and 5th Amendments and
enjoined its enforcement against the plaintiffs.

Attorneys who represented the plaintiffs in this stage of the
litigation included Beatrice Dohrn, Evan Wolfson and Ruth Harlow of
Lambda and Marc Elovitz and Matthew Coles for the ACLU.  A.S.L.

11th Circuit, En Banc, Rules Against Robin Shahar in Public
Employment Case

Former Georgia Attorney General Michael Bowers's decision to refuse
to employ Robin Shahar, a lesbian attorney, was upheld in an 8-4
vote by the U.S. Court of Appeals for the 11th Circuit, sitting en
banc, on May 30.  __Shahar v. Bowers__, 114 F.3d 1097.  The ruling
supplanted a vacated three-judge panel decision that would have
required the state on remand to show a compelling justification for
refusing to hire Shahar, 70 F.3d 1218 (1995), and affirmed a
decision by the U.S. District Court for the Northern District of
Georgia, 836 F.Supp. 859, which had dismissed Shahar's lawsuit in
1993 based on the trial judge's decision that Bowers's concerns
about the impact of Shahar's wedding on the Law Department
outweighed Shahar's constitutional association rights.  

Within days after the decision was released, Bowers, who recently
resigned to run for Governor of Georgia, told reporters that he had
engaged in a ten-year adulterous affair with an employee in his
office.  Bowers admitted that his position in the __Shahar__ case
was "morally hypocritical," but insisted he had done the correct
thing by withdrawing his job offer to her.  Attorneys for Shahar
filed a motion with the court seeking a reconsideration of the
decision in light of Bowers' revelation.

The court's opinion ducked the central legal issues in the case:
(1) whether the constitutional right of intimate association
applies to a same-sex relationship, and (2) whether the right of
free exercise of religion would be violated by refusing to employ
a person because they participated in a religious ceremony to bless
a same-sex relationship.  Instead, the court took the approach of
assuming for purposes of discussion that such constitutional rights
exist, but concluded that Bowers's interests as the chief law
enforcement officer of Georgia outweighed any rights Shahar might
have in the constitutional balance, and that the religious nature
of her wedding ceremony had nothing to do with Bowers's decision. 
The opinion emphasized the particular nature of the job in question
in determining the weight to give to Bowers's concerns.

The 12-judge panel was sharply split.  The opinion for the court by
Circuit Judge J. L. Edmondson represented the views of seven
members.  Circuit Judge Gerald Tjoflat, concurring, reached the
same conclusion for different reasons.  Each of the four dissenters
wrote a separate opinion explaining his or her disagreement with
the majority.  Different views about the significance of __Romer v.
Evans__, 116 S.Ct. 1620 (1996), which declared Colorado's anti-gay
Amendment 2 unconstitutional, emerged as a major point of
difference among the judges.

Robin Brown worked as a summer clerk in the Georgia Department of
Law in 1990, prior to her last year at Emory Law School, where she
was an honors student and an editor of the Law Review.  Brown's
work earned her a permanent job offer to work on death penalty
cases.  She accepted the offer and filled out an application. 
Under "marital status" she indicated that she was engaged to marry
Francine Greenfield.  Evidently nobody in the Law Department paid
attention to this form when it was submitted.  In June 1991, Brown
notified the Law Department that she wanted to start work in
mid-to-late September, because she was marrying at the end of July
and then taking a honeymoon trip.  She also indicated that her new
last name would be Shahar.  By that time, word had spread in the
Department that Brown was marrying another woman, and Department
staff members brought the "situation" to the attention of Bowers,
a notorious foe of gay rights who defended Georgia's felony sodomy
law in __Bowers v. Hardwick__, 478 U.S. 186 (1986).  Bowers reacted
by withdrawing his "offer" of employment, stating in a letter that
this was due to Brown's participation in a same-sex wedding.

Brown and Greenfield had their wedding in South Carolina, conducted
by Rabbi Sharon Kleinbaum, and both legally changed their last
names to Shahar.  Robin Shahar obtained a job in the Atlanta City
Attorney's office and filed suit against Bowers, represented by the
ACLU's Lesbian and Gay Rights Project.

The District Court determined that the Shahars' relationship was
protected by the right of intimate association and that their
marriage ceremony was protected by the right of free exercise of
religion.  However, neither of those rights is absolute, and the
district court determined that Bowers's concerns about the
operation of his office took priority.  The district court accepted
Bowers's argument that he had not refused to employ Shahar because
she is a lesbian.  Bowers claimed that other lesbian or gay people
were working in his office, although he refused to name them.
(Bowers evidently followed the "don't ask, don't tell" policy in
his office.)  A three-judge panel of the 11th Circuit reversed and
sent the case back for trial, concluding that Bowers should have to
do more to justify his contention that employing Shahar would
disrupt his office.  Bowers successfully petitioned for en banc
rehearing.

Judge Edmondson indicated that the court would not decide whether
the right of intimate association includes a right for lesbians and
gay men to form cohabiting relationships.  Edmondson contended that
it was unnecessary for the court to decide this because, even
assuming that such a right existed, as a governmental employer
Bowers could refuse to employ Shahar if he reasonably believed such
employment would undermine the operation of his Department.  Bowers
argued that in light of the Georgia sodomy law, the Department's
continuing involvement in a variety of situations concerning gay
issues, and the prohibition of same-sex marriage under Georgia law,
it would be inappropriate for the court to order him to employ
Shahar.  At the heart of Bowers's argument was the proposition that
employing somebody who was engaged in a same-sex "marriage" would
undermine the credibility of his office as an enforcer of Georgia
laws, confusing the public by sending mixed messages, and also
undermining office morale.  He also argued that Shahar herself
could have conflicts due to positions the Department was taking on
issues like same-sex marriage, sodomy law enforcement, and domestic
partnership.  

The Georgia sodomy law, upheld by both the U.S. Supreme Court and
the Georgia Supreme Court, provides a prison sentence of up to
twenty years for anybody who engages in oral or anal sex,
regardless of gender.  Bowers contended that it would be reasonable
to assume that anybody engaged in a same-sex relationship is a
probable violator, and the court agreed with him, echoing the
"presumption" approach of military cases.

In what was probably the most offensive part of the court's
opinion, Edmondson analogized this case to a prior decision
upholding the discharge of a Ku Klux Klan member by a sheriff's
department. This was cited for the proposition that an elected
official may properly take public opinion into account in making
personnel decisions.  Edmondson emphasized that Shahar had been
offered a position in which she would be seen by the public as a
spokesperson for the Attorney General, and contended that Bowers,
as an elected official, had a right to decide to employ in such
"policy" positions only those whose conduct he was confident would
reflect the office's positions on controversial issues such as
same-sex marriage.  Edmondson emphasized that the constitutional
balance might be different in a case involving a lower-level public
employee, but insisted that the Attorney General required a large
degree of discretion in making decisions about hiring attorneys.

Edmondson found the __Romer__ decision to be essentially irrelevant
to the case, distinguishing it as being concerned with "status"
rather than "conduct."  The court concluded that it was "obvious"
that the religious nature of Shahar's commitment ceremony had
nothing to do with Bowers's decision not to employ her, disposing
of her free exercise of religion argument with little discussion.

Concurring in the result, Judge Tjoflat argued that it was
impossible for the court to conduct a constitutional balancing test
between Shahar's rights and Bowers's employment concerns without
determining the constitutional status of Shahar's rights.  If
Shahar had a fundamental right at stake, the court would have to
apply "strict scrutiny" to Bowers's arguments, and might have to
rule in favor of Shahar.  But Tjoflat concluded that Shahar's
constitutional claim was very weak, arguing that the right of
intimate association applies most strongly to
traditionally-sanctioned relationships such as marriage.  To find
constitutional protection for "homosexual relationships," he
argued, the court would have to find that such relationships
"played a critical role in the culture and traditions of the Nation
by cultivating and transmitting shared ideas and beliefs," and, he
concluded, "this simply is not the case."  Citing __Hardwick__, in
which the Supreme Court said that "no connection between family,
marriage, or procreation on the one hand and homosexual activity on
the other has been demonstrated," Tjoflat revived the most
contemptuous remark from Justice Byron White's opinion: that the
constitutional claims of gay people for protection under the 14th
Amendment are "facetious."

Dissenting, Senior Circuit Judge John Godbold said that he "would
grasp the nettle and hold that in the particular circumstances of
this case Shahar enjoyed rights of intimate association and
expressive association and that the Attorney General violated those
rights because he did not act reasonably in revoking the agreement
made with Shahar."  Godbold reiterated the discussion from the
panel's opinion about the validity of Shahar's associational and
religious rights.  He argued that "the undisputed evidence is that
in fact the Attorney General did terminate Shahar because of her
religiously-based association with her partner."  

More importantly, Godbold argued, Bowers had acted unreasonably by
failing to make any inquiry of Shahar about what meaning she
attached to her "marriage."  Bowers, at least to judge from the
letter he wrote and the arguments he made in court, felt that
Shahar was flouting Georgia law by claiming to be married, when in
fact it was clear that Shahar attached no legal significance to the
ceremony or her relationship with her partner.  Bowers staked his
case on the contention that employing Shahar would confuse the
Georgia public about the Law Department's position regarding
same-sex marriage, but, Godbold argued, because Shahar was making
no claim of legal marital status, there was no such confusion
except in Bowers's own mind.  

Godbold observed that Bowers had absolutely refused to meet with
Shahar, but just rushed to judgment.  "If the Attorney General had
made reasonable investigation this case might never have arisen,"
wrote Godbold.  "But not only did he make no further investigation,
he closed the door to knowledge. . .  The Attorney General walled
himself off, forbade comment or inquiry by staff members who met
with Shahar, and terminated the agreement with Shahar on his
erroneous perception of the association that she was asserting. 
Whatever his views on possible adverse effects on his office, he
did not act reasonably."

In her dissenting opinion, Senior Circuit Judge Phyllis Kravitch
was particularly scornful of the majority's readiness to credit
Bowers's predictions of an adverse impact on his staff and the
credibility of his office.  She emphasized the private and personal
aspects of Shahar's relationship with her partner, and especially
criticized Bowers's reliance on presumed public disapproval of
homosexual relationships as a basis for his action.  Citing
__Romer__, Kravitch commented that "the Supreme Court has now held
that animosity toward gay people is an illegitimate purpose for
state policy, and thus, to prevail in the balancing of interests,
Bowers must cite more than perceived, public distaste for
homosexuals."  Kravitch concluded that Shahar's "constitutional
interest in pursuing her intimate association with her partner
outweighs any threat to the operation of the Georgia Department of
Law."

Kravitch made passing mention of __Romer__ toward the end of her
opinion, but it was the central focus of Circuit Judge Stanley F.
Birch's dissent.  "In my opinion," he wrote, "the Court's
recognition in __Romer__ that homosexuals, as a class, are entitled
to some protection under the Equal Protection Clause bears on the
validity -- and therefore the weight in applying the . . .
balancing test -- of Bowers's justifications for his action.  With
__Romer__ in the balance, the scales tip decidedly in favor of
Shahar. . .  The weight we accord to Bowers's asserted interests,.
. . hinges entirely on the reasonableness of his predictions as to
how Shahar's homosexual relationship might affect or disrupt the
Attorney General's office."  Birch found it significant that
"Bowers has made no showing of actual disruption. . .  When we
closely examine these predictions, we discover that each one is
based on a series of assumptions and unsupported inferences about
Shahar because of her status as a homosexual."  In other words,
Birch disagreed totally with the District Court's facile
determination that Bowers had not discriminated on the basis of
sexual orientation.  

In the majority opinion, Edmondson briefly disposed of __Romer__ by
asserting that it was about "status" while this was a case about
"conduct."  Birch destroyed this argument in a textual footnote: 
"It is a matter of simple logic that only homosexuals would enter
into a homosexual marriage.  Bowers's action, therefore, draws a
distinction that, on its face, reaches homosexuals only and
distinguishes among similarly situated people on the basis of one
trait only: that they are homosexual.  Bowers cannot escape this
conclusion by subdividing the class of homosexuals into those who
elect to enter into a homosexual marriage and those who do not, and
then claiming that he discriminated against Shahar not because of
her status as a homosexual but because she is a homosexual and she
entered into a homosexual marriage."  Birch argued that this would
be like discharging an attorney who married an attorney of a
different race, and arguing that one had not discriminated based on
race.

Birch also exploded Bowers's argument that other staff members and
the public would think Bowers was tolerating a violation of the
sodomy law by employing an attorney who was engaged in a same-sex
relationship.  The sodomy law applies to everybody, not just
homosexuals, and one could just as easily assume that single
employees in the office who are not virginal have violated
Georgia's sodomy or fornication laws.  (In Georgia, it is only
legal to have sex with a person to whom you are legally married,
and then you are restricted to vaginal intercourse.  Does anyone
take these laws seriously other than Michael Bowers?  Ironically,
just days after the decision came out, Bowers, who had resigned as
Attorney General to mount a campaign for governor, admitted
publicly that he had been engaged in a ten-year adulterous affair
with a Law Department employee some years earlier, and resigned his
commission in the Georgia Air National Guard in light of the
current situation about adultery in the military, admitting to
reporters that he had acted hypocritically in the case of Robin
Shahar.  There were no reports that the state was preparing to
prosecute Bowers, still a declared candidate for the Republican
nomination for governor, for adultery.)

"In short, Bowers's asserted interests . . . are based on
inferences from [Shahar's] status as a homosexual which Bowers
claims that he, the public, and department staff are entitled to
make," wrote Birch.  "In light of . . . __Romer__, these
status-based inferences, unsupported by any facts in the record and
explained only by animosity toward and stereotyping of homosexuals,
do not constitute a legitimate interest that outweighs Shahar's
First Amendment right of intimate association."

Finally, Circuit Judge Rosemary Barkett devoted much of her dissent
to pointing out how the court failed to follow the Supreme Court's
analytical method for determining whether a public employee's
constitutional rights have been violated.  Instead of making a
considered evaluation of the interests of both sides, "the majority
permits a government employer to support termination decisions
predicated on the employee's exercise of First Amendment rights
with only a minimal and totally subjective rationale and without
considering the rights of the employee in the balance.  In effect,
the majority grants overwhelming, if not complete, deference to the
Attorney General's subjective views."

Further, Barkett criticized the majority for failing to accord
appropriate consideration to Shahar's interests. "Given the fact
that it is not illegal in Georgia for two women to own a house in
common, purchase insurance together or even exchange rings, it is
difficult to understand how the fact that someone might discover
these things could possibly affect the ability of the Attorney
General to do his job effectively -- the Attorney General is simply
not charged with ensuring that his employees refrain from obtaining
the blessing of their religious leaders prior to cohabitating in
Georgia (which is essentially all that Shahar has done.)"
  
Finally, Barkett pointed out the logical extremes to which Bowers's
conflict of interest arguments could be taken.  Bowers argued that
Shahar would not be able to credibly represent the office because
of her interest in gay issues.  "Surely the Attorney General's
office has lawyers who have a `special interest' in any number of
topics: abortion, school desegregation, affirmative-action or
rights for the disabled, for instance. . .  Absent hard evidence,
it is difficult to imagine a court upholding, for example, an
Attorney General's assertion that he fired a black attorney because
he believed (assumed?) that attorney's `special interest' in
desegregated schools would prove disruptive to the office."

Shahar was represented at oral argument by Ruth Harlow, former ACLU
staff attorney and now Lambda Legal Defense and Education Fund's
New York Office Managing Attorney.  The ACLU and Lambda now jointly
represent Shahar in her motion for reconsideration.  A.S.L.

Supreme Court Term Ends With Significant Decisions for Gay Concerns

The U.S. Supreme Court ended its October 1996 term on Friday, June
27, releasing a string of significant decisions over the final
weeks of the term.  At least two have direct significance for
lesbians and gay men, and several others may also have some
long-term significance.

On June 26, the Court invalidated provisions of the Communications
Decency Act (CDA) of 1996 that, if they had gone into effect, could
have significantly restricted the presence of homosexually-oriented
material on the Internet.  __Reno v. ACLU__, 1997 WL 348012.  The
CDA was added to a major telecommunications deregulation bill
without any serious study by Congress.  Reacting to news reports
about pornography on the Internet, Congressional prudes sought to
criminalize knowingly either sending an "obscene or indecent"
message to anybody under 18 years of age, or using an interactive
computer service to send or display "patently offensive"
communications involving "sexual or excretory activities or organs"
that could be accessed by somebody under 18 years of age.  

The Court was unanimous in agreeing that the "indecency" and
"patently offense" portions of the CDA violated the First
Amendment, and Justice John Paul Stevens's opinion was especially
important for establishing that communication on the Internet
enjoys full First Amendment rights, not the more restricted
protection that the Court has recognized for radio and television
broadcasting.  Where two members of the Court, Justice Sandra Day
O'Connor and Chief Justice William H. Rehnquist, parted company
from the majority was in finding that Congress could make it
unlawful to knowingly send an indecent message to a person under
age 18; while they agreed that the government could not penalize
send indecent messages where the sender was uncertain of the age of
potential recipients, they believed that in those specific
instances where somebody knew he or she was sending an indecent
message to a minor, they could be punished.  The entire Court
agreed that Congress could legislate against obscene messages,
which do not enjoy any First Amendment protection.  

Lesbian and gay Internet service providers were part of the
coalition of groups that filed the legal challenge to the laws,
which helps to underline how crucially important the ruling in
__Reno v. ACLU__ is for the future discussion of gay issues
on-line.  The Court reasserted a point it has made in other
contexts: while concern for children is important, it does not
generally justify restricting what adults can say or do.  

This decision came shortly after press reports that federal
district courts had invalidated laws in two states seeking to
regulate sexually-explicit content on the internet, one on
federalism grounds, the other on free speech grounds.  Both
decisions are probably superfluous in light of this Supreme Court
ruling.

The rulings on physician-assisted suicide, __Vacco v. Quill__, 1997
WL 348037, and __Washington v. Glucksberg__, 1997 WL 348094, were
issued on June 26.  These lawsuits were brought by groups of
doctors and their terminally-ill patients, challenging laws in New
York and the state of Washington that penalize physicians for
assisting their patients in committing suicide.  The plaintiff
groups included AIDS doctors and severely ill people with AIDS who
wanted to assure their right to terminate their lives with the help
of their doctors if things became too painful to bear any longer.

The Court unanimously reversed both court of appeals decisions.  In
__Washington__, the 9th Circuit Court of Appeals had found that the
law violated a fundamental right of personal autonomy.  In
__Vacco__, the 2nd Circuit Court of Appeals found that the New York
law violated the equal protection rights of those terminally ill
patients who were unable to commit suicide without the help of
their doctors, reasoning that they had as much right to commit
suicide as did those patients who, in effect, committed suicide by
demanding an end to their medical treatment under circumstances
where death would inevitably result.  In prior decisions, the Court
has upheld the right of a mentally competent patient to refuse
treatment, even if the result would be to hasten the patient's
death.

Writing for the Court, Chief Justice Rehnquist asserted that the
Due Process Clause, which is generally identified as the source for
those fundamental constitutional rights that are not spelled out in
the document itself, could not support a right to physician-
assisted suicide.  Following a logic that will be familiar to those
who have read the Court's infamous sodomy decision of ten years
ago, __Bowers v. Hardwick__, Rehnquist contended that fundamental
rights under the Due Process Clause are determined by reference to
those rights that have been respected historically in our society. 
Rehnquist argued that physicians have been prohibited from
assisting their patients to commit suicide from the beginning of
this country's history, so a right to such assistance may not be
deemed fundamental.

Since physician-assisted suicide was determined not to be a
fundamental right, the state could prohibit it for any rational
reason.  Rehnquist found it rational for the state to protect
terminally ill patients from being coerced into committing suicide
by overbearing doctors or relatives.

As to the Equal Protection argument in __Vacco__, Rehnquist
observed that this doctrine depends on finding that the two groups
being compared are similarly situated.  Unlike the 2nd Circuit, the
Supreme Court did not conclude that those terminally ill people who
can end their misery by discontinuing treatment and those who can
only end their lives with affirmative help from their doctors are
similarly situated.

These decisions drew strongly-worded protests from AIDS advocates
and lesbian and gay rights groups, as they mark yet another
instance in which the state invades the autonomy of individuals in
making important decisions about their lives.  However, several of
the concurring opinions by other justices, and even Rehnquist's
opinions for the Court, suggested that the Court might be receptive
to a more narrowly-targeted right to assisted suicide, under
circumstances where a terminally-ill patient was in extreme pain
that could not be controlled by medication and where all hopes for
recovery through further treatment are futile.  Conceptually,
however, it might be difficult to get such a case up before the
Court.  At the same time, the Court hinted that there might be no
constitutional barrier to the states repealing their laws against
physician-assisted suicide in carefully defined cases.

Another end-of-term decision that may ultimately have important
consequences for the lesbian and gay community was __City of Boerne
v. Flores__, 1997 WL 345322, issued June 25.  In this case, the
Court, speaking through Justice Anthony M. Kennedy, found the
Religious Freedom Restoration Act (RFRA) unconstitutional.  RFRA
was born out of Congressional disagreement with a 1990 decision,
__Employment Division v. Smith__, 494 U.S. 872, in which the Court
upheld a state's decision to deny unemployment benefits to Native
Americans who lost their jobs because they used peyote, an illegal
drug, in their religious observances.  The Native Americans had
claimed First Amendment free exercise of religion protection for
their activity.  The Court ruled in __Employment Division__ that
the Free Exercise Clause does not override state laws of "general
application," such as drug laws, that were not specifically enacted
to prevent religious observance.  

Prior to the ruling in __Employment Division__, the Court had
customarily extended significant protection to religious observers
in such circumstances.  Despairing of enacting a constitutional
amendment to overrule the Court's decision, Congress came up with
RFRA, which ordered the courts to subject any general laws to
"strict scrutiny" when they were challenged as substantially
abridging a religious practice.  This meant that the state would
have to show that it had a compelling interesting that could only
be met by restricting the practice in question.

The Court's response was that Congress does not have authority to
pass laws that effectively overturn constitutional interpretations
of the Supreme Court.  Under the division of powers between the
branches of government and between the federal and state
governments, said the Court, the Supreme Court's determination of
what the constitution means is final and can only be overruled by
the people of the country through the amendment process.  Although
section 5 of the 14th Amendment gives Congress a grant of power to
pass laws implementing constitutional rights, Kennedy found that
this law did more than "implement" the right of free exercise of
religion; rather, it attempted to change that right from the
content it had been given by the Supreme Court.  Indeed, Kennedy
argued, by establishing a strict scrutiny test for general laws
that incidentally impose a substantial burden on religious
practices, Congress had gone beyond the Court's pre-__Employment
Division__ approach, which he characterized as a "balancing test." 

The case's significance for the lesbian and gay community is that
religious opponents of homosexuality have sought to use the Free
Exercise Clause to develop their own "special right" to refuse to
comply with legal non-discrimination requirements, in cases
involving apartment rentals, public accommodations, and even direct
challenges to the constitutionality of gay rights laws in New
Jersey and Hawaii.  Had RFRA been upheld, it is possible that
religious conservatives could use it to tear big holes in laws
banning anti-gay discrimination, by claiming that these laws of
general application would have to give way to sincerely-held
religious objections by employers, landlords, and others.  On the
other hand, the enactment of RFRA stopped momentum in Congress
toward amending the Constitution to provide special protection for
religious observance.  If the demise of RFRA leads to new calls for
amending the Constitution, gay rights laws could be in serious
trouble.

Two other cases with little apparent relevance to gay issues also
deserve some comment.  In __Agostini v. Felton__, 1997 WL 338583
(June 23), the Court overruled __Aguilar v. Felton__, 473 U.S. 402,
a decision from the 1980s that had barred public school systems
from sending their teachers into religious schools to  provide
remedial education.  __Aguilar__ had been decided by a sharply
divided Court, at a time when the Court's majority was much more
strongly committed to the concept of a "wall of separation between
church and state" than it has become since the appointment of more
conservative justices by Presidents Reagan and Bush.  In
__Agostini__, Justice O'Connor wrote, among other things, that
__Aguilar__ should be overruled because intervening decisions by
the Court had significantly undermined the rationale for that
opinion.
 
This approach raises an interesting analogy to __Bowers v.
Hardwick__.  Last year, in __Evans v. Romer__, Justice Antonin
Scalia suggested in his bitter dissent that the Court's decision
was totally inconsistent with __Bowers__.  The Court upheld the
sodomy law in __Bowers__ based on the idea that the moral
disapproval of homosexuality by most Georgians provided a rational
basis to outlaw sodomy.  But in __Evans__, the Court said that
moral disapproval of homosexuality could not justify the state
amending its constitution to prevent gays from obtaining protection
from discrimination.  If the Court's view now is that moral
disapproval of homosexuality is not a legitimate justification for
state laws, might O'Connor's comments suggest that the Court would
be a receptive to a new federal sodomy law challenge?

Where speculation arising from __Agostini__ is hopeful, speculation
arising from __Kansas v. Hendricks__, 1997 WL 338555 (June 23), is
definitely not.  In this decision, the Court upheld a Kansas law
allowing the state to commit violent sex offenders to mental
institutions, even if they are not found to be mentally ill, once
their prison terms end.  Writing for the Court, Justice Clarence
Thomas rejected the notion that virtually perpetual incarceration
under such circumstances violated the Constitution by imposing
punishment beyond that prescribed by law.  It's not punishment,
wrote Thomas, to confine somebody in order to protect society. 
And, in a phrase that might come to haunt us as the AIDS epidemic
lingers, "A state could hardly be seen as furthering a `punitive'
purpose by involuntarily confining persons afflicted with an
untreatable, highly contagious disease."  Most experts would
contend that AIDS is not "highly contagious," but not those on the
right wing who have begun to argue about "AIDS
exceptionalism" in challenging the refusal of public health
officials to undertake routine HIV testing and reporting and
contact tracing.  Opposing such measures, AIDS advocates have
frequently pointed to positive concern by the Supreme Court for
personal liberty.  Thomas's comments, if they reflect the views of
many other justices, may not bode well in the coming battles over
AIDS public health measures.  (We are indebted to attorney Barrett
Brick of Washington, D.C., for suggesting the potential
significance of __Agostini__ and __Hendricks__.) A.S.L.

Massachusetts Supreme Court Orders Family Court to Explain Need for
Home Study on Adoption Petition by Lesbian Moms; GLAAD Appeal Wins
Reconsideration

Ruling 5-2 on June 11 in __Adoption of Galen__, 425 Mass. 201, 680
N.E.2d 70, the Supreme Judicial Court of Massachusetts ordered the
Suffolk Division of the Probate and Family Court Department to
reconsider whether it is necessary to order a home study before
ruling an adoption petition jointly filed by a lesbian mother and
her domestic partner.  The petitioners challenged the requirement
of a home study as discriminatory, and contended that the family
court's refusal to waive this requirement was an abuse of
discretion.

The case concerns Nancy, Nancy's son Galen, conceived through donor
insemination, and Nancy's partner, Laura.  Nancy and Laura have
been domestic partners for more than ten years, and jointly planned
to have children through donor insemination.  Galen was born in
1996.  Shortly after his birth, Nancy and Laura petitioned the
family court for an adoption order so that they would both be legal
parents of Galen.

All the evidence presented by the women accompanying their
petition, including affidavits from three medical professionals
supporting the adoption, indicated that they would provide a
suitable home for Galen.  Nonetheless, the family court ordered
that a home study be conducted by the Social Services Department,
even though this may cause significant delay in approving the
adoption.  Nancy and Laura petitioned the family court to waive the
requirement of a home study, but their petition was denied, the
family court stating that such a study "serves an important
purpose" because it "assists the Court in determining whether an
adoption should be allowed by providing, through independent child
welfare professionals, relevant information about the child,
parents and the home."  The family court judge also noted that the
"only evidence" accompanying the petition was submitted by the
petitioners, but gave no other explanation for refusing to waive
the requirement.

Massachusetts law requires that a home study be performed, but
gives the court discretion to waive a home study when one of the
petitioners is already the child's parent.  According to a study
cited by Justice Marshall's opinion for the court, such waivers are
routinely granted when single parents get married and join with
their new spouses to petition for adoption.  Nancy and Laura argued
that their situation was analogous to such a step-parent adoption
and should be treated the same way.

Justice Marshall's opinion went a long way toward agreeing with
them.  While the decision whether to waive a home study lies within
the discretion of the family court, such waivers appear to be
routine for step-parents, and Marshall found nothing in the
recorded comments by the family court judge to justify denying the
waiver in this case.  On the other hand, there was no written
opinion by the family court judge, so the court concluded that it
should send the case back with directions for the family court
either to grant the waiver or give a reasonable explanation. 
"Where, as here, a claim has been made that the only reason for
ordering a home study is because the petitioners are of the same
gender," wrote Marshall, "it is incumbent on the judge to explain
the reasons for ordering the home study."  Although the court did
not formally find an abuse of discretion, its mandate certainly
signalled disapproval of the practice, apparently routine among
Massachusetts family court judges, of refusing to waive home
studies when same-sex couples file adoption petitions.

Justices O'Connor and Lynch dissented, arguing that the delay issue
was irrelevant because Galen was living with his legal mother and
her partner anyway, and that there was nothing in the record to
show that the family court abused its discretion in ordering the
study.  Perhaps significantly, the dissenters had also dissented
from the court's 1993 decision authorizing joint adoptions by same-
sex couples, __Matter of Tammy__, 619 N.E.2d 315.

Nancy and Laura are represented by Katherine Triantafillou and
Joyce Kauffman.  Gay & Lesbian Advocates and Defenders and the
office of Massachusetts Attorney General Scott Harshbarger
submitted amicus briefs in support of the women's petition. A.S.L.

Federal Court Refuses to Dismiss Sexual Harassment Claim by Lesbian
College Student Against Female Teacher

In an apparent case of first impression under Title IX, 20 U.S.C.
sec. 1681, which prohibits sex discrimination in educational
institutions that receive federal funds, U.S. District Judge
Stearns (D.Mass.) refused to dismiss a hostile environment sexual
harassment claim brought by a lesbian student against Mount Ida
College and one of her professors, identified as Dr. Jane Doe. 
__Donovan v. Mt. Ida College__, 1997 WL 259522 (Jan. 3) (not
reported in F.Supp.).  Judge Stearns dismissed a quid pro quo
harassment claim, however, while refusing to dismiss some
supplemental state law tort claims.

Denise Donovan is identified in the first sentence of the opinion
as "a lesbian and a former student at Mount Ida College."  As
summarized by the court: "From the Amended Complaint, deeming its
facts and inferences to be true, one gleans the impression that Doe
began her pursuit of Donovan from the moment she enrolled in Doe's
class.  Over the ensuing months, Donovan received persistent and
undesired attentions from Doe, including two invitations to engage
in a sexual relationship.  Moreover, Doe's hounding of Donovan
intruded into other facets of Donovan's scholastic life when Doe
intervened twice with other of Donovan's professors to secure
Donovan's exclusive companionship." The complaint also describes an
incident during which another student, frustrated at Doe's
favoritism toward Donovan, "called Donovan `a fucking homo lesbian'
in front of Doe and the entire class," after which Donovan alleges
that Doe, apparently closeted, changed her attitude towards
Donovan, and "effectively shut her out of further class
participation."  In effect, Donovan alleges that Doe sought to
pursue Donovan privately but feared public identification as a
lesbian.

In evaluating motions to dismiss by Mt. Ida College and Doe,
Stearns concluded that "Title IX's prohibitions are not restricted
to heterosexual conduct," and that the complaint adequately set out
the basis for claims of sexual harassment as well as sexual
orientation discrimination, actionable as a supplemental state law
claim under Massachusetts's gay rights law. 
A key issue in any hostile environment case is whether the alleged
misconduct is sufficiently pervasive and severe to have transformed
the environment such as to deprive the plaintiff of equal
opportunity, in this case in the context of her college education. 
Title IX courts usually look to Title VII (employment) case law in
analyzing such claims, due to the paucity of published Title IX
cases.  The 1st Circuit has set a relatively high standard in
hostile environment cases, which Stearns speculates may not be met
here, but "I perceived enough difference between the work and the
school milieu to justify a less rigorous standard under Title IX,"
said Stearns.  "The authority relationship between a student and
her teacher is likely to be more intense than that between a worker
and her boss, the age disparity is likely to be greater, and the
student less likely to have access to the types of protective
mechanisms like trade unions, civil service regulations, grievance
procedures, and employment policing agencies, that are at the
disposal of many workers.  Also considering the fact that the law
regarding hostile environment claims under Title IX is a work in
progress, Donovan should be given the opportunity to better develop
her claim to be tested in a summary judgment context on a true
factual record."

However, Stearns found insufficient basis in the complaint for
sustaining a quid pro quo sexual harassment claim, suggesting that
rearranging the factual allegations in chronological order resulted
in removing the impression that Doe specifically retaliated in any
way for Donovan's rejection of her alleged sexual overtures. 
A.S.L.

Colorado Supreme Court Reverses __Borquez__ Verdict; Remands for
New Trial on Anti-Gay Discharge Under Off-Duty Conduct Law

In __Ozer v. Borquez__, 1997 WL 340666 (June 23), the Colorado
Supreme Court reversed a jury verdict that was rendered in favor of
a gay attorney who had sued his firm for wrongful discharge in
violation of a state statute which prohibits discharge of an
employee because of the employee's lawful activities outside the
workplace, and for invasion of privacy.  The court reversed because
the trial court had not given an instruction to the jury on the
statutory grounds, and had given an incorrect instruction on the
privacy tort claim, and remanded the matter for a new trial. 

Borquez had been associated with Ozer & Mullen, the defendant firm,
for two years in February 1992, when he found out that his partner
had been diagnosed with AIDS.  He was not "out" on the job.  He
made an appointment for the next day to get himself tested, and
called his office to arrange for someone to cover a deposition and
an arbitration during this period.  The call was referred to Robert
Ozer, a partner in the firm.  Borquez explained the situation,
"came out" to his boss, and asked that the matter be kept
confidential.  Ozer told him to "do what he needed to do," but made
no reply to the request for confidentiality.  When Borquez returned
to work two days later, he found that Ozer had discussed the matter
with the firm manager, one of the partners, and two of the
secretaries, and that everyone in the firm knew of the situation.

Borquez was discharged a week later, allegedly on account of the
firm's poor financial situation.  This was despite the fact that
Borquez had received three merit raises during his tenure with the
firm, including one given just a few days before he had come out.

Borquez sued the firm and the partner, claiming wrongful discharge
and invasion of privacy.  Borquez alleged violation of sec.
24-34-402.5(1), 10A C.R.S. (the "lawful activities statute"), which
makes it an unfair labor practice to discharge an employee based on
the employee's lawful conduct outside the workplace during
non-working hours, and based on the anti-discrimination clause of
the City and County of Denver ordinance sec. 28-93(a)(1), which
made it unlawful for an employer to discharge an employee based on
the employee's sexual orientation (along with race, color, national
origin, gender, age, etc.).  Borquez also sued in tort for
"invasion of privacy in the nature of unreasonable publicity given
to one's private life."

A 5 day jury trial was held in July 1993.  Because Colorado
Constitutional Amendment II, which would have banned ordinances
like the Denver ordinance, had not yet been stricken, the trial
court judge proposed that the matter not be tried under the Denver
ordinance, but on whether Borquez was discharged on account of his
"sexual orientation or for some other reason," and instructed the
jury that an award should be made if it found that Borquez "would
not have been discharged but for his sexual orientation."  No jury
instruction was specifically given on the "lawful activities"
statute.  The jury found for Borquez, and returned a verdict of
$30,841 for the wrongful discharge claim, $20,000 for the invasion
of privacy claim, and $40,000 in exemplary damages.  

The defendants appealed, arguing that the verdict on wrongful
discharge was erroneously based on the Denver ordinance, which does
not imply a private cause of action, and because the ordinance was
barred by Amendment II, that Colorado does not recognize the tort
alleged, because the evidence did not support the claim, and that
the instructions on invasion of privacy were incorrect.

The Court of Appeals affirmed the jury verdict. That court ruled,
first, that the wrongful discharge claim was supported by the
lawful activities statute, second, that Colorado would recognize
the invasion of privacy claim, and third, that the jury
instructions regarding the invasion of privacy claim were not
defective.

In the instant opinion, the Colorado Supreme Court affirmed the
second point, recognizing the tort of invasion of privacy based on
unreasonable publicity given to one's private life, but reversed as
to the two other points.  Since no jury instruction had been given
on the lawful activities statute as a basis for the claim for
wrongful discharge, it could not be relied on as a basis for the
verdict.  Finally, the Supreme Court remanded because the trial
court jury instructions had improperly confused "publication" of
the private facts with unreasonable "publicity", when each had a
specific and different meaning in context.  The court was careful
to state that it was not ruling on the merits of the "lawful
activities" statute claim, and did not discuss the court of
appeals' analysis of that claim on the merits.  S.K.

Illinois Appeals Court Upholds Stalker Law In Case Involving Gay
Bar Owner

Rejecting a challenge to the constitutionality of a state law
criminalizing "stalking," the Illinois Appellate Court, 1st Dist.,
affirmed a 3-year prison sentence for a self-described "good-
looking straight white man" who terrorized a woman who owns a gay
bar.

The victim, Michelle Fire, testified to a chain of events in which
James Rand persistently "came on" to her without her encouragement,
yelled anti-lesbian epithets against her, continued to approach her
despite her requests that he stop. (Fire's sexual orientation is
not discussed in the opinion.)  When he was arrested, Rand told
police officers that "this was a lesbian conspiracy orchestrated by
Michelle Fire" and said that he was "going to get that lesbian
[expletive]." (Deletion in court's text.)  

Rand was charged under 720 ILCS 5/12-7.3, providing that "a person
commits stalking when he or she, knowingly and without lawful
justification, on at least 2 separate occasions follows another
person or places the person under surveillance or any combination
thereof and: (1) at any time transmits a threat to that person of
immediate or future bodily harm, sexual assault, confinement or
restraint; or (2) places that person in reasonable apprehension of
immediate or future bodily harm, sexual assault, confinement or
restraint."

Writing for the court, Justice O'Brien rejected the argument that
the statute was void as overbroad or vague, finding that past
interpretation had extinguished any overbreadth problems and that
there was no vagueness problem about application of the statute to
the facts of this case.  The court also rejected a challenge to the
trial court's jury instructions.  A.S.L.

Texas Appeals Court Holds Lesbian Co-Parent Can Sue for Visitation
Rights

Ruling on a question of first impression construing a Texas statute
governing suits for child visitation rights, the Texas Court of
Appeals, 3rd District, held that a lesbian co-parent who had
enjoyed at least six months of "actual care, control, and
possession of the child" prior to filing suit could maintain an
action seeking "possessory conservatorship" (the Texas term for
visitation rights).  __Fowler v. Jones__, 1997 WL 365473 (July 3). 
The opinion by Chief Justice Jimmy Carroll places no significance
on the homosexual nature of the relationship between the parties.

Lisa Fowler and Tonia Jones began their relationship in 1986, and
Jones gave birth as a result of donor insemination in 1992. 
Fowler, Jones and the child lived together as a family until mid-
1994, and Jones permitted Fowler "to have access to and possession
of the child for varying periods of time" after that until about
June 1995, when Jones denied Fowler further access to the child and
had the child's surname (which had included both "Fowler" and
"Jones") legally changed to just "Jones."  

Fowler sued for legal visitation rights, but the trial court
concluded that it lacked jurisdiction under Tex. Fam. Code Ann.
sec. 102.003(9), which allows such a suit to be filed by a non-
parent "who has had actual care, control, and possession of the
child for not less than six months preceding the filing of the
petition."  The trial court apparently felt bound by prior rulings
of the court of appeals holding that the six month period described
by the statute must have been immediately prior to the filing of
suit.  Fowler had also claimed, in the alternative, that she should
be treated as a parent.  As to that, the trial court found that
Fowler was not biologically related to the child and that she and
Jones never "memorialized" their relationship in a ceremony or
legal document.  

Chief Justice Carroll pointed out that the legislature had changed
the law in 1995 to remove the word "immediately," thus leaving the
statute open to a broader interpretation that would confer standing
on a non-parent who had enjoyed at least a six-month period of such
"care, control, and possession of the child" at __any__ time prior
to the filing of the petition.  Rebutting Jones' argument that this
would produce the absurd result that somebody who had abandoned a
child could at a later date bring suit under the statute, Carroll
found that, since the court would then have to make a best interest
determination to rule on the merits, the conferring of jurisdiction
to hear the case would not necessarily be absurd.  On the other
hand, Carroll pointed out, requiring that the six months period be
immediately prior to filing the petition could produce an absurd
result: "That is, parties who have co-parented a child may separate
and try to reconcile or voluntarily agree to visitation; if their
separation becomes final or difficulties in visitation arrangements
arise even one day and six months after their separation, any step-
parent or party not legally or biologically related to the child
may be deprived of standing to have a hearing on the merits." 
Thus, it was logical for the legislature to delete the immediacy
language, and for the court to treat the deletion as a substantive
change in the statute, reacting to the court's prior interpretation
with which the legislature disagreed.  The case was remanded for
further proceedings.

In an Associated Press report published July 4 in many newspapers,
Jones's attorney, Mary Kay Sicola, announced that Jones would seek
reconsideration or appeal to the Texas Supreme Court. Jones's
current partner, Susan Arbuckle, and the sperm donor, Lawrence
Thoren, are joined as co-defendants in the case.  Fowler is
represented by Austin, Texas, attorney James Arth, who we thank for
promptly sending us a copy of the decision (which subsequently
appeared on Westlaw shortly before we went to press).  A.S.L. 

Lambda Wins Appeal in Ohio Custody Dispute

In a major victory, a unanimous three-judge panel of the Ohio Court
of Appeals ruled in favor of gay father Herbert Inscoe's appeal in
__Inscoe v. Inscoe__, 1997 WL 346199 (Oh. App., 4th Dist., June 18)
(not officially published).  The per curiam ruling reversed a
homophobic decision by the Meigs County Common Pleas Court, which
decided to change custody from the father to the mother based
solely on the father's "openly gay life-style."  Pat Logue, Lambda
Legal Defense & Education Fund's Chicago Office Managing Attorney,
represented Inscoe on the appeal.

The Inscoes were married in 1983 and had their son in 1984. 
Herbert filed for divorce in 1988, and was granted custody of his
son after a trial during which he was open about being gay.  In
1993, Bonnie filed an order seeking weekend visitation, which was
granted for three weekends a month and for the summer months. 
However, during the following school year the son's extra-
curricular activities began to interfere with visitation, and in
December 1994, Bonnie filed a motion for contempt, claiming her
visitation rights were being violated, and seeking a change of
custody, claiming that her son's "current living conditions" were
not in his best interest.  Herbert countered with a motion seeking
limits on Bonnie's visitation to accommodate his son's other
weekend activities.

At trial it appeared that Bonnie's claim boiled down to Herbert's
sexual orientation and relationship with his new partner of two
years, with whom he ran a pet shop business.  A court-appointed
investigator recommended keeping custody with Herbert.  After the
trial, the judge ordered that a psychologist examine the child and
report to the court.  The psychologist reported that the
10-year-old boy was uncomfortable in talking about his father's
homosexuality, and suggested that in light of society's disapproval
for gays, the child might suffer some psychological detriment in
the future from living with his father.  There was also evidence at
trial that Bonnie's nephew had sexually abused the boy, and that
the nephew lived in the same building as Bonnie.  An investigation
had resulted in charges against the nephew, and a trial was pending
at the time of the custody hearing.

The trial court ordered a change of custody to Bonnie, and ordered
Herbert to pay child support, finding that Herbert's "openly gay
life-style" was having an adverse effect on his son.  For computing
child support, the court assumed that Herbert earned half the
annual net income of the pet shop business (which was legally owned
in his partner's name). 

The court of appeals pointed out that the U.S. Supreme Court, in
__Palmore v. Sidoti__, 466 U.S. 429 (1984), an custody dispute
involving an interracial couple, had ruled that societal prejudices
cannot provide the basis for a custody decision, and held that the
same principle applied here.  In order to change custody, the party
seeking the change must show that the child's current living
situation reflects "changed circumstances" that are harmful,
because the law disfavors changing custody.  The court found that
the evidence at trial would not support such a conclusion.  Indeed,
two of the judges felt that there was no real change of
circumstances that could trigger a decision about changing custody,
since Herbert was openly gay during the original divorce
proceedings.  The third judge thought that Herbert's new partner
and work situation constituted a change of circumstances.

The trial court also erred by assuming that Herbert's income was
half the annual net income of the pet shop business.  Since Herbert
was an employee of the pet shop, the court should have calculated
his income based on his salary.  This was not because Herbert and
his partner could not legally marry; under Ohio law, the income of
a new legal spouse is also not supposed to be counted in
determining a parent's income for child support purposes.

The court of appeals sent the case back to the trial court for a
new hearing.  Amicus support for Herbert's appeal came from the
Ohio Human Rights Bar Association, the American Academy of Child
and Adolescent Psychiatry, the Ohio Psychological Association, and
the National Association of Social Workers. A.S.L.

Tennessee Appeals Court Switches Custody From Lesbian Mother to
Father, Disclaiming Any "Moral Judgments"

In a June 20 decision, the Tennessee Court of Appeals switched
physical custody of a child from the unmarried lesbian mother with
whom the child has lived since birth (almost 4 years) to the
child's biological father, based on the court's disagreement with
the trial court over which parent would be better for the child. 
__In re Nickolas E. Price__, 1997 WL 338588.

William Harris, the father, and Christian Carol Price, the mother,
were romantically involved off and on from June 1986 until 1989;
they continued to see each other occasionally and on October 12,
1992, after having dinner to celebrate William's birthday, they had
sex and Nickolas was conceived.  However, by that time Chris had
apparently determined that she was a lesbian and was living with a
lesbian roommate.  When she gave birth to Nickolas, William, also
unmarried, filed a suit for a declaration of paternity and sought
custody.  

The trial court heard from many witnesses, including a clinical
psychologist, Dr. John Hutson, who testified that "there was no
long-term harm to a child who has a homosexual parent," but also
stated "that it is a minor but noticeable experience that children
raised by homosexual parents are subject to being ostracized and
teased by their peers."  Hutson also testified that it would be
wrong to take physical custody away from Chris.

There were many other factual issues that surfaced during the
trial: Chris has a problem with alcohol; she placed Nickolas in an
unlicensed day-care center even though William offered to pay for
him to go to a licensed center; Chris lives with a lesbian roommate
(with whom she does not have a sexual relationship) and has stated
that she would bring lovers home to the apartment when Nickolas was
there; and Chris had attempted suicide twice in the past.  

Despite these issues, the trial court awarded joint custody to both
parents, designating Chris the parent with physical custody and
granting liberal visitation rights to William.  The trial court
also rejected William's request to restrict Chris from engaging in
sexual activity in the custodial home while Nickolas was present. 

The court of appeals, in an opinion by Presiding Judge Crawford,
disagreed with the trial court's conclusions, finding that Chris
had a history of emotional instability exacerbated by her recurring
drinking problems.  While disclaiming making an moral judgments
about Chris's "lifestyle," Crawford wrote: "We cannot disregard a
parent's activity that may have an impact on the developmental
stage of a child's life.  We feel it is unacceptable to subject
children to any course of conduct that might signify approval of
any illicit conduct whether it be between homosexuals or
heterosexuals.  Mother and her roommate have testified that they
are not lovers, and there is nothing in the record to indicate that
this is not correct.  However, Mother's prior history of emotional
instability as compared to Father's history appears to fall
measurably short."

In switching physical custody to William, the court emphasized his
great concern for the child, shown from the time of birth, when
William placed Nickolas on his insurance plan and filed an action
within five days seeking custody and a declaration of paternity, as
well as registering Nickolas for a licensed day care center.  The
court also noted Chris's failure to respond at any point in the
appeals process to protect her custody award.  Finding that William
was in a better position to provide a "more consistent and stable
environment for the child," the court reversed the trial court on
physical custody.  It also approved William's request to restrict
either parent from "cohabitating overnight with individuals with
whom either party is romantically involved while the child is in
his or her care."  The court also ordered that on remand the trial
court establish "liberal visitation rights for Mother and to
determine her obligation for child support."

It is difficult to evaluate this decision based solely on the
court's opinion.  Chris was not represented on appeal, so the
presentation to the court was necessarily one-sided and its
presentation of the facts undoubtedly reflects this limitation. 
The only expert testimony on the record supports the trial court's
physical custody award to Chris.  One rather suspects that animus
towards lesbian mothers by the court affected the outcome, since it
is rare for an appellate court to reverse a custody determination
based on disagreements with the trial court over factual issues.
A.S.L.

South Carolina Appeals Court Holds Homosexual "Fatal Attraction"
Defendant Failed to Preserve Objections for Appeal

In a curious but frightening turn of events following a gay
break-up, a dumped ex-boyfriend with a psychotic bent attempted to
destroy his South Carolinian insurance salesman lover of three
weeks, and was held liable after a civil default judgment for
invasion of privacy and intentional infliction of emotional
distress.  In this ruling, the South Carolina Court of Appeals
found that defendant's opportunity to appeal was lost by failing to
make proper objections during a damages hearing after the default
judgment was entered. __Doe v. S.B.M.__, 1997 WL 333943 (June 9).

In the spring of 1994, Doe and S.B.M. were involved in a romance
and lived together for three weeks in Greenville, South Carolina. 
Doe ended the relationship in April of 1994.  Thereafter, S.B.M.
contacted Doe's employer and informed him of their homosexual
relationship.  Furthermore, S.B.M. stole Doe's mail and Rolodex of
his insurance clients.  S.B.M. stated that he would not be
satisfied until Doe was "flipping hamburgers and driving a
Volkswagen."  He wanted Doe's personal and professional reputation
ruined going as far to also call Doe's mother and informing her of
the graphic details.   Doe eventually moved to Charlotte to escape
S.B.M.'s harassment.  As a result, Doe lost his Greenville
apartment deposit.

S.B.M. followed Doe to Charlotte and resumed his threats and
harassment.  Doe called the Charlotte police twice and reported
S.B.M.'s conduct.  S.B.M. also broke into Doe's new apartment,
physically threatened Doe, and keyed the side and slashed the tires
of Doe's company car.  He told Doe he tapped his phones. On the
night of May 3, 1994, S.B.M. went to Doe's neighborhood, knocked on
his neighbor's doors, and walked from door to door yelling Doe was
a "queer," a "fag," and other terms of hate.  As a result of
S.B.M.'s calls to Doe's employer and the other acts of harassment
that followed Doe to work, Doe's employer asked Doe to resign.  Doe
remained unemployed for two months. 

The court granted a temporary restraining order until the case
could be heard upon its merits.  At that trial, S.B.M. failed to
answer and the judge signed an order of default and set a damages
hearing date.  At the damages hearing, S.B.M. appeared pro se and
did not object to any of Doe's evidence and testimony. The judge
ordered a written order awarding Doe a total damages award of
$30,204.23.  After the issuance of this order, S.B.M. filed a
motion to be relieved of default and for a new trial and new
hearing on damages.  The court denied all motions and S.B.M.
appealed.  

Writing for the court, Judge Anderson quickly clipped all but one
of S.B.M.'s issues by stating that it is a well-settled rule that
an issue may not be raised for the first time on appeal, but must
have been raised to the trial judge to be preserved for appellate
review.  The record clearly reveals the S.B.M. did not object to
any issue relating to damages except his request to cross-examine
Doe regarding loss of employment by Doe, therefore S.B.M.'s failure
to object at trial waives any right to raise those issues.   As to
the one issue S.B.M. did preserve, whether the trial court erred in
prohibiting him from cross-examining Doe at the damages hearing
regarding the reason Doe lost his job, S.B.M. claims that Doe's
loss of employment is an element of damage, not a question of
liability.  However, S.B.M.'s queries related to liability rather
than damages and consequently, the court prohibited S.B.M. from
continuing his cross of Doe and sustained Doe's objection as to
relevance.  This slip opinion included the rather humorous (and
lengthy) colloquy between the court and S.B.M. on this issue,
fulling illustrating this point and S.B.M.'s slow cognitive ability
(and stubbornness) to accept it.   K.J.R.

NY Appellate Division Finds No Spousal Privilege for Gay Couple

In a terse per curiam decision issued on July 1, the N.Y. Appellate
Division, 1st Department, rejected a claim of evidentiary spousal
privilege on behalf of a gay couple.  __Greenwald v. H & P 29th
Street Associates__, 1997 WL 365935.  Glenn Greenwald and his same-
sex partner brought an action against the owner and the managing
agent of an apartment building for refusing to aggregate their
income for purposes of determining whether they met the building's
minimum income requirements, presumably for purchasing an
apartment.  The plaintiffs moved for a protective order limiting
disclosure in discovery to matters not privileged under N.Y. Civ.
Prac. L. & Rules 4502(b), which protects confidential
communications between a "husband" and "wife" "during marriage." 
N.Y. Supreme Court Justice David Saxe denied the motion, and the
plaintiffs appealed.

The appellate division held that the trial court correctly
concluded that the spousal privilege statute does not extend "in
the plaintiff's words, `to homosexuals in a spousal relationship.'" 
It noted that the two N.Y. Court of Appeals decisions relied upon
by the plaintiffs for the notion that the court could give a broad
interpretation to domestic relations law concepts in matters
involving same-sex couples concerned more broadly-worded statutes
that were open to interpretation.  Here, the statute was precise in
specifying husband, wife, and marriage.  Evidently, the plaintiffs
had also raised an unspecified constitutional argument (presumably
equal protection) before the trial, which was  not preserved for
appeal, but the appellate division gratuitously commented that it
would also find the constitutional arguments to be without merit. 
A.S.L.

Supreme Court to Decide Whether Same-Sex Harassment Claim May be
Brought Under Title VII; Cert. Grant Leads a District Court to Deny
Attorney Fees to Employer in Same-Sex Harassment Case Even Though
Claim Must be Dismissed; Dismissal in Case Where Harassment Was
Insufficiently Severe

The Supreme Court announced on June 9 that it would review the 5th
Circuit's decision in __Oncale v. Sundowner Offshore Services,
Inc.__, 83 F.3d 118 (5th Cir. 1996), holding that same-sex
workplace harassment claims may not be brought under Title VII of
the Civil Rights Act of 1964.  Although the Court had denied
certiorari petitions in several same-sex harassment cases just last
fall, the persistence of this issue, and the recent issuance of
several decisions by other circuits allowing such claims to go to
trial, together with the urging of the Clinton Administration to
take the case, seems to have tipped the balance on the Court in
favor of plunging into this contentious thicket.  

U.S. District court judges in the 5th Circuit are now in an awkward
position: they must dismiss same-sex harassment claims brought
under Title VII due to controlling circuit precedent, but should
they also award attorneys fees to employers as prevailing parties
on such motions on the ground that the plaintiffs' claims are
"frivolous, unreasonable, without foundation, and/or brought in bad
faith," the standard for such fee awards under 42 U.S.C. sec.
2000e-5(k)?  In __Riser v. Haggar Clothing Co.__, 1997 WL 361644
(N.D.Tex., June 25) (not officially published), Judge Sanderson
decided as follows: "The fact that a conflict exists among the
circuits as to whether a cause of action lies under Title VII for
same-sex sexual harassment coupled with the fact that the Supreme
Court granted certiorari in __Oncale__ precludes a finding that
Plaintiff's claims were frivolous and baseless as Defendant
contends."  Thus the Defendant's application for attorneys fees was
denied. 

In __Drew v. First Savings of New Hampshire__, 1997 WL 352201
(D.N.H. April 2), District Judge Devine dismissed a same-sex
harassment claim, finding that the magistrate judge had correctly
concluded that the alleged harassment was insufficiently severe to
violate Title VII.  A supervisor, who was believed by the employees
to be a lesbian (although she asserted to the contrary in papers
filed with the court), had a practice of hugging employees when she
gave them their paychecks, and sending cute little note cards to
employees with pieces of candy.  Some employees, construing these
behaviors to be sexually-motivated, found them personally
offensive, and ultimately two of them filed suit under Title VII,
alleging sexual harassment.  They complained to the employer about
this practice, but obtained no relief.  The court found that the
hugging incidents detailed in the complaint were insufficient to
state a hostile environment sexual harassment claim under Title
VII.  This is the kind of case that generates scare articles by
critics of civil rights laws about frivolous litigation.  A.S.L.

Supreme Court Asked to Rule on Gay Foster Placements

A petition has been filed with the U.S. Supreme Court on behalf of
a John Doe petitioner from Massachusetts who alleges a violation of
his constitutional rights by virtue of the state's social services
agency placing his 14-year-old son with a gay male couple as foster
parents for a period of six months last year.  __John Doe, In re:
Care and Protection of Minor Child__.  The petition, dated April
28, 1997, and discussed in an article in the __National Law
Journal__ on July 7, was filed by Boston attorney James Michael
Kelley.  

The petitioner asserts that the placement was made without
notification of the sexual orientation of the foster parents to
himself or his wife; that he, his wife and children are practicing
Catholics; that the Catholic Church disapproves of the gay
lifestyle; and thus, that placement of his teenage son with a gay
male couple violates the petitioner's parental rights, as set out
in cases such as __Wisconsin v. Yoder__, 406 U.S. 205 (1972), to
determine the religious upbringing of his children.  

Technically, the petition appeals from an order of the
Massachusetts Supreme Judicial Court, entered on January 28, 1997,
dismissing as moot the petitioner's appeal of lower court decisions
denying his petition to terminate the foster care arrangement.  The
case was mooted when the child was returned to petitioner after the
agency decided there was not enough evidence to uphold allegations
of child abuse, according to the __Law Journal__ report.  The
petitioner claims that due to the brevity of foster placements and
the policy of the state allowing such foster placements, this is an
issue capable of repetition but evading review.  A.S.L.

Professor Who Defended Gay Thesis Topic Has First Amendment Claim

District Judge Wilkinson (U.S.Dist.Ct., E.D.La.) ruled June 25 in
__Marino v. Louisiana State University Board of Supervisors__, 1997
WL 358141 (not officially published) that a junior faculty member
who claimed she suffered retaliation after championing a gay
literary thesis topic pursued by a graduate student under her
advisement can maintain an action for violation of her 1st
Amendment rights against the University and certain named
defendants.

According to the complaint, Dr. Virginia Marino, an assistant
professor of foreign languages, was asked by her department chair,
a defendant in the case, to direct the thesis of a graduate student
whose topic was homosexual themes in the work of a famous French
author.  Marino was asked to undertake this task because the
student was having difficulty over his work with his originally
assigned thesis advisor.  Marino approved the topic and advocated
it within the department, even when senior department members made
it clear that they thought the graduate student should not be given
a degree because of his topic selection.  As a result of
controversy over this, several members of the senior faculty
allegedly retaliated against Marino by agitating against her normal
reappointment, the department chair allegedly treated her
differently from other faculty in the matter of a sick leave she
needed due to knee and foot injuries, and she received the lowest
raise of any active faculty member for the 1996-97 school year. 
She resigned in October 1996 and claimed constructive discharge.

The main issue preoccupying Judge Wilkinson on the motion to
dismiss was the defendants' claim of qualified governmental
immunity under the 11th Amendment.  Government officials performing
discretionary tasks are normally immune from liability unless it
can be shown that they violated a well-established constitutional
right of the plaintiff.  Wilkinson found, as alleged by Marino,
that "the issue of homosexual studies in an academic setting has
been a matter of strenuous debate in recent years" and thus that
her statements on behalf of the student's work could be considered
speech on a matter of public concern, an initial requirement for
finding 1st Amendment protection for public employee speech. 
Wilkinson found that the next issue, whether Marino's interest
outweighed any legitimate interest of her employer, could not be
decided without further litigation.  Wilkinson did find that Marino
sufficiently alleged facts indicating that she suffered retaliation
because of her speech to raise a claim of violation of rights.  

Wilkinson also found that there was enough in the complaint to keep
alive supplemental state law claims of tortious interference with
contract by some of the named defendants and defamation based on
remarks made about Wilkinson by some of the named defendants. 
A.S.L.

Tennessee Criminal Appeals Court Considers Homosexuality Issues in
Affirming Murder Conviction

Rejecting various claims for post-conviction relief, the Tennessee
Court of Criminal Appeals affirmed a life sentence for Joseph
Rhinerson in the shooting of his neighbor, Daniel Walker. 
__Rhinerson v. State__, 1997 WL 327616 (June 17) (not officially
published).  Rhinerson had raised homosexuality issues in
contesting the fairness of his trial.

Rhinerson, single, lived with another man, and contends that he had
a reputation in the community as a homosexual.  Yet, his public
defender did not question prospective jurors about their views
concerning homosexuality.  Rhinerson contended that the fairness of
his trial was compromised, in light of his reputation in the
community and the possibility that some jurors might have been
biased against him because of their unknown views on this subject. 
The court found that Rhinerson's attorney made a strategic decision
that could not be challenged on post-trial review under an
ineffective assistance of counsel standard, and that the failure to
voir dire on homosexuality, when it was not apparently an issue in
the case, did not deprive defendant of a fair trial.  The court
also found little merit to the defendant's argument that the
prosecutor sought to prejudice the jury by mentioning that after
the murder the defendant and his "homosexual friend" were seen
walking "arm in arm" in the neighborhood.  A.S.L.

Louisiana Appeals Court Upholds Life Sentence for Murder of Gay Man

A panel of the Louisiana Court of Appeal, 3rd Circuit, voted 2-1 to
uphold the life sentence upon conviction of second degree murder of
Ronald Reeves for the death of Arnold Davis, a gay man, near Iowa,
Louisiana.  __State v. Reeves__, 1997 WL 292716 (June 4).  Reeves
presented a variety of defenses at trial, including that he killed
Davis because Davis was badgering him for sex, but while in custody
of police officers, Reeves stated: "I killed the guy because he was
a faggot."  In appealing his sentence, Reeves claimed that
introduction of some of his remarks as well as a formal confession
violated his rights against self-incrimination.  The appellate
panel was divided 2-1 on whether police questioning violated the
__Miranda__ rule in this case.  Although Reeves was twice advised
of his rights, and at first refused to talk without a lawyer, he
subsequently changed his mind after reading the affidavit attached
to his arrest warrant and being told by a detective that this was
his "last chance" to give his side of the story.  A majority of the
court felt that this did not cross the line established in U.S.
Supreme Court cases concerning whether police conduct coerced a
defendant to waive his __Miranda__ rights.  A.S.L.

Military Appeals Court Refuses to Adopt Exclusionary Rule for
Evidence Obtained in Violation of Current Guidelines

A service member convicted of indecent assault and indecent
exposure in the context of homosexual activity was unsuccessful in
persuading the U.S. Navy-Marine Corps Court of Criminal Appeals to
adopt a ruling excluding evidence obtained in violation of the
"don't ask, don't tell" guidelines.  __United States v. Nadel__, 46
M.J. 682 (March 26).  Sergeant Nadel, who received various
penalties in addition to a bad conduct discharge, asserted that
some of the evidence introduced against him arose from an
investigation that was initiated without a sufficient basis under
the guidelines, which instruct military commanders that they are
not to initiate investigations of service members for suspected
homosexuality unless they have an objective basis for proceeding. 
However, the court found that the guidelines did not create legally
binding procedures that could be invoked to exclude evidence.  In
addition, it pointed to significant evidence sufficient to support
the convictions that was not so tainted, since it came from the
complaint of the other service member involved in the sexual
assault incident.  A.S.L.

New Hampshire Governor Signs Rights Bill

New Hampshire Governor Jeanne Shaheen signed H.B. 421 on June 7,
making her state the eleventh to enact legislation banning
discrimination on the basis of sexual orientation.  (Maine became
the tenth state during May.)  The New Hampshire law becomes
effective January 1, 1998.  It amends existing civil rights laws in
New Hampshire to add references to sexual orientation where
appropriate, and defines sexual orientation as follows: "`Sexual
orientation' means having or being perceived as having an
orientation for heterosexuality, bisexuality or homosexuality. 
This definition is intended to describe the status of persons and
does not render lawful any conduct prohibited by the criminal laws
of this state or impose any duty on a religious organization.  This
definition does not confer legislative approval of such status, but
is intended to assure the basic rights afforded under New Hampshire
law."  By contrast, the new Maine law's definition avoids all
hedging about and straightforwardly says: "`Sexual orientation'
means having a preference for heterosexuality, homosexuality or
bisexuality, having a history of that preference or being
identified with that preference." A.S.L.

ENDA, Modified, Introduced Again

The Employment Non-Discrimination Act of 1997 (ENDA), H.R. 1858, S.
869, a bill to ban employment discrimination on the basis of sexual
orientation by employers who are covered by Title VII of the Civil
Rights Act of 1964, the Congressional Accountability Act, and the
Presidential and Executive Office Accountability Act, was
introduced in Congress on June 10 with 34 Senate sponsors and 150
House sponsors.  An earlier version of ENDA came one vote short of
passage in the Senate last year, when it achieved an unprecedented
floor vote as part of a deal to allow a floor vote on the Defense
of Marriage Act without an ENDA amendment.  

In its newest version, ENDA was modified to address concerns stated
during the Senate debate last year, including exempting employers
from the usual statistical recordkeeping under civil rights laws
that might require inquiries into employees' sexual orientation,
and an absolute prohibition on affirmative action based on sexual
orientation, including as part of consent decrees settling cases. 
The bill also explicitly authorizes employers to establish
workplace conduct rules, so long as they are evenhandedly applied
to all employees.  As with earlier versions, ENDA only outlaws
intentional discrimination, and would not authorize disparate
impact cases.  Furthermore, volunteer employees, religious
organizations and the military are all expressly exempted from
coverage.

Despite the close Senate vote last year under extraordinary
circumstances, the sponsors do not expect ENDA to come to a vote
this year or to pass either house even if it did, although one
never knows what circumstances might provide a vehicle for a floor
vote (as last year's DOMA debate did).  As a result of the 1996
elections, the Senate is slightly more conservative than it was
when the last vote was taken, and nobody predicts any movement on
ENDA by the House Republican leadership.  See 66 USLW 2009
(7/1/97). A.S.L.

Hawaii Becomes First State to Extend Benefits to Domestic Partners
Through Legislative Enactment

Hawaii became the first American state to extend legal recognition
for same-sex couples through legislation when the "Reciprocal
Beneficiaries" Bill, passed by the legislature as part of a deal to
place an anti-gay-marriage constitutional amendment on the ballot
in November 1998, went into effect without Gov. Cayetano's
signature on July 8.  The governor, a supporter of gay domestic
partnership efforts, flashed hot and cold about signing H.B. 118,
but ultimately concluded that there were too many flaws for it to
earn his imprimatur.  A major objection was that legislators bowed
the lobbyists from conservative groups by extending the law to any
couple legally barred from marriage, thus allowing a father and
son, for example, to register as reciprocal beneficiaries; Cayetano
did not support extending the measure beyond same-sex domestic
partners.  However, the governor did not want to upset the deal for
now by vetoing the bill.  

One spokesperson for Hawaii employers suggested that the bill will
stir up litigation quickly, due to confusion about who is covered,
particularly in the area of employee benefits.  Relying on an
exemption from ERISA preemption for Hawaii, the bill is the first
to require that private sector employers provide health benefits
for non-marital partners of their employees.  However, it is not
precisely clear how far the exemption in 29 U.S.C. sec. 1144(5)
extends, and it seems likely that a court test will materialize
quickly on this aspect of the law.

Although domestic partners of state employees in some other states
enjoy some aspects of recognition by virtue of executive action or
collective bargaining, prior to Hawaii's action only municipal or
county employees in a few dozen locations around the country have
enjoyed such benefits as a result of legislation.  The benefits
covered by the Hawaii law are wide-ranging, but fall significantly
short of full marriage rights, and of course confer no rights to
federal benefits or status.  A.S.L.

Domestic Partnership & Marriage Notes

KPMG Peat Marwick, a major national accounting and benefits
consulting firm, released a survey indicating that 23 percent of
those American companies that have more than 5,000 employees now
offer domestic partnership health benefits.  Of those with between
1,000 and 5,000 employees, 13 percent offer the benefits.  Of
smaller firms, with between 200 and 999 employees, 12 percent
offered the benefits.  Overall, from a survey of 1502 randomly
selected employers with over 200 employees, 13 percent offer
domestic partnership coverage.  The Peat Marwick report stimulated
extensive media coverage toward the end of June.  __San Francisco
Examiner__, June 24.

San Francisco's beleaguered ordinance barring city contracts with
private employers who fail to provide domestic partnership benefits
for their employees, which went into effect June 1, flared into the
headlines again on June 16, with city officials speculating that
traditional summer trips to major theme parks outside the city for
inner-city kids might have to be cancelled, since the theme parks
(Great America, Marine World, Santa Cruz Boardwalk) don't have such
benefits programs.  Mayor Willie Brown promptly announced his view
that the city's funding of these trips did not amount to
"contracting" with the amusement establishments, and Cynthia
Goldstein, the Human Rights Commission's contract compliance
officer, allowed as how some exceptions to the ordinance were
possible if appropriate application was made to the Commission. 
The gravest threat to the ordinance remains a federal lawsuit filed
by the airline industry, arguing that the city's actions are
preempted by any one of several federal laws, including the
Employee Retirement Income Security Act.  A second suit, filed on
behalf of another city contractor, P.M. & M. Electronics, Inc., has
been filed by a conservative public interest firm and consolidated
with the airline suit.  Both cases have been consolidated for
argument before U.S. District Judge Claudia Wilken, based in
Oakland.  __San Francisco Chronicle__, June 16, 17 & 18.

New Orleans, Louisiana, Mayor Marc Morial issued Exec. Order 97-
1122, extending spousal benefits eligibility to registered domestic
partners of the city's gay and lesbian employees, at a May 17
banquet sponsored by Human Rights Campaign, the national gay
political group.  The City Council had actually voted to extend
such benefits in 1994, but the measure was vetoed by then-Mayor
Sidney Barthelemy.

On June 5, Colorado Governor Roy Romer vetoed H.B. 97-1198, a bill
intended to ban recognition of same-sex marriages in that state. 
In a veto message, Romer stated two reasons for the veto: First, as
drafted, the bill might invalidate thousands of existing common-law
marriages in Colorado.  Second, Romer considered the measure to be
"fundamentally negative and divisive," arguing that under existing
Colorado law there was no danger that lesbians and gay men could
claim the right to marry or have their out-of-state marriages
recognized.  "The only real effect of this bill is to target gay
and lesbian people and to exclude and stigmatize this group in our
society," declared Romer.

Among major corporate employers announcing new domestic partner
benefits plans in recent weeks have been: Digital Equipment
Corporation, effective July 1; and Pacific Telesis, effective
January 1, 1998 for pensions, leaves, adoptions, and dependent life
insurance and January 1, 1999, for health insurance (medical,
dental, vision, dependent care); Visa International (applicable to
U.S. based international employees and Visa US employees), covering
medical, dental and vision benefits, effective January 1, 1998.

When a state enacts a law against recognition of same-sex
marriages, does the law implicitly extend to recognition of out-of-
state adoptions by same-sex couples?  The Durham, North Carolina,
__Herald-Sun__ reported July 10 on a case pending in that city
where a court is considering whether North Carolina's law against
same-sex marriages means that the state should not give any effect
to a Washington state adoption proceeding in which the adoptive co-
parent is petitioning for custody over the opposition of the
child's birth parent, who has now moved out of North Carolina.  The
adoptive parent argues that Full Faith & Credit requires the N.C.
court to honor the out-of-state adoption decree as a "judgment,"
while the birth parent argues for a public policy exception based
on the recently-enacted N.C. statute.

The Los Angeles Unified School District's board voted 5-2 on June
30 to grant domestic partnership benefits to same-sex partners of
District employees.  The board's president, openly-gay Jeff Horton,
said he would not seek benefits because his partner has adequate
coverage where he works.  __Los Angeles Times__, June 3. A.S.L.

Illinois Appeals Court Finds Sexual Proposition A "Breach of Peace"

The Illinois Appellate Court, ruling on an issue of first
impression, held that a sexual proposition constitutes a breach of
the peace under Illinois law in __People v. Allen__, 1997 WL 289644
(Ill. App., 4th Dist., June 2).  The court affirmed the disorderly
conduct conviction of Lloyd D. Allen, a 47-year-old man, for a
pattern of threatening and sexually explicit remarks to two 16-
year-old boys over a period of nine months.  Finding one count
insufficient in a five count charge, the court remanded for
resentencing because Allen had received one undivided sentence on
all counts.  Allen had been fined $250, and sentenced to one year's
probation and seven weekends in jail. 

Writing for the court, Justice Cook defined "disorderly conduct"
under the Illinois Criminal Code, sec. 26-1(a)(1), to mean doing
"any act in such unreasonable manner as to alarm or disturb another
and to provoke a breach of the peace."  Since there was no evidence
that Allen engaged in, threatened, or produced violence, Cook first
considered whether words alone can constitute disorderly conduct,
holding that they can, either when they are abusive and "fighting
words" likely to provoke violent reaction, or otherwise if they
were harassing or threatening.

In a public square, Allen told the boys that they had attended a
gay party and that he could "suck (one boy's) dick" better than
anyone at the party.  Later, in a store where one boy worked
bagging groceries, Allen placed his arm on the boy and said "you
are good with your hands. I bet you are good with other things with
your hands."  When one boy was leaving work, Allen asked him if he
had "learned to swallow yet," told the boy he knew what the boy
drove, where he lived, when he worked, and how to find him.  There
was also evidence Allen had been circling the store in his car
nightly.  He later threatened that if the boys told anyone what he
had said, he would spread rumors they were "queer."  The boys
testified that Allen's conduct scared them, caused them to work in
the back room to avoid contact with him, and made them afraid to
leave the store alone.

Addressing the threat to spread rumors the boys were gay, the court
ruled that was a threat to destroy their reputation and sufficient
by itself to constitute disorderly conduct, even absent a threat of
immediate physical harm.  As to Allen's non-threatening words, the
court found them to constitute a breach of the peace in two
respects, first as a sexual overture to a minor, and second, as
harassing, unwelcome, lewd, implicitly threatening, and frightening
to minors, even if they did not incite actual violence.  A.J.L.

Suburban N.Y. Court Rejects Partner Benefits Claim

N.Y. Supreme Court Justice Allan Winick rejected a claim for
domestic partnership benefits brought by Duke Funderburke, a
retired teacher, against the Uniondale school district. 
__Funderburke v. Uniondale Union Free School District No. 15__,
1997 WL 370533 (Sup.Ct., Nassau Co., May 21).  Funderburke had
applied for medical benefits coverage for his domestic partner,
attorney Bradley Davis, and was denied on grounds that only legal
spouses were eligible.  His lawsuit seeks an order requiring the
district to adopt a domestic partnership benefits plan, and to
extend eligibility to his domestic partner.  Funderburke announced
that he has filed an appeal with the Appellate Division, 2nd
Department.  __Newsday__, June 19.  

Funderburke premised his claim on alternative legal theories of
marital status discrimination under the state's Human Rights Law,
and sexual orientation discrimination under the N.Y. City Human
Rights Law.  (Although the school district is in Nassau County,
Funderburke and his partner reside within New York City.)  Justice
Winick's opinion notes that the state Civil Service Department
issued a memorandum to local government agencies in February 1995,
advising them that they could "elect to extend health care coverage
to domestic partners of state employees and retirees," but that the
school district decided not to extend benefits.

Winick first analyzed the marital status claim.  He found that this
provision "protects an individual from discrimination because of
his/her status of being married or unmarried.  It does not protect
someone living in a long-term domestic-partnership relationships." 
Winick concluded that the district's plan holds all applicants to
the same standard, "whether someone is single, married, separated
or divorced," and thus does not discriminate on the basis of
marital status.

As to the sexual orientation discrimination claim, Winick rejected
Funderburke's attempt to rely on the decision in __Gay Teachers
Association v. Board of Education of the City School District of
the City of New York__, a case through which New York City public
employees won domestic partnership benefits in a settlement after
issuance of a decision upholding their cause of action by the
Appellate Division, 1st Department.  Winick pointed out that __Gay
Teachers__ "involves the conduct of a school district within the
City of New York, [and] is not controlling under the facts at bar." 
Neither Nassau County nor New York State bans discrimination in
employment on the basis of sexual orientation, although __state__
employees are protected from such discrimination by an executive
order and most state employees enjoy domestic partnership benefits
eligibility by virtue of collective bargaining agreements
negotiated in the final months of former Gov. Mario Cuomo's
administration.

Winick's opinion totally ignores the potential effect of __Romer v.
Evans__ on a discrimination claim brought by gay litigants against
a public employer, but it is not clear from the decision whether
the plaintiff here raised an equal protection claim in the
complaint.  A.S.L.

U.S. District Court Allows Sexual Orientation Discrimination Claim
to Proceed Against N.Y.C. Health & Hospitals Corp.

Ruling on cross-motions for summary judgment, U.S. District Judge
Leonard Sand held on June 16 that Richard Sussman, a gay physician
and former intern at Coney Island Hospital (operated by the N.Y.C.
Health & Hospitals Corporation and thus a public employer), was
entitled to pursue various claims against his former employer,
including sexual orientation discrimination pursuant to New York
City's human rights law.  __Sussman v. NYC Health & Hospitals
Corp.__, 1997 WL 334964 (not reported in F.Supp.).

Sussman, who was removed from his neurology internship under highly
contested circumstances, alleges that sexual orientation
discrimination was one of the motivations.  Of course, his ability
to pursue this claim in federal court depends upon the viability of
federal constitutional and statutory claims, some of which he lost
on summary judgment but enough of which survived (mainly due to
contested facts underlying the claims) to keep his lawsuit alive.

The sexual orientation issue allegedly arose as follows: Sussman,
a person with dyslexia, had not disclosed his sexual orientation
when he was hired as an intern under a one-year contract.  Midway
through the contract, Sussman received an offer of an internship at
Beth Israel Hospital in Manhattan; in seeking permission from his
boss, Dr. Sandor Friedman, to terminate his internship early in
order to take the Beth Israel position, Sussman "came out" and
asserted that in the Manhattan hospital, he would be able to be
more open about being gay.  Friedman's response was allegedly to
characterize Sussman as "ungrateful."  Friedman ultimately denied
Sussman's request; Sussman attributes the various faults in his
subsequent performance, to the extent they existed, to depression
over having lost the opportunity with Beth Israel, and alleges that
the change in his evaluations and his treatment by Dr. Friedman all
post-dated his revealing his sexual orientation.  Within a few
months, Sussman's performance so deteriorated that he was pressured
to quit or be fired and was subsequently terminated in a hospital
proceeding. A.S.L.

Doctor Held Not Liable When His Radiology Technician Performs
Unwanted Oral Sex on a Patient

In __Porter v. Harshfield__, 1997 WL 340761 (June 23), the Arkansas
Supreme court sustained summary judgment in favor of Dr. David
Harshfield against Randy Porter's claim that Harshfield is
responsible because his employee, radiology technician Jerry
Pearrow, initiated unwanted oral sex with Porter while Porter was
lying on an examination table preparatory to an ultrasound
procedure.  Porter had also sued Pearrow and won $30,000 damages in
a default judgment.

Porter claimed that Pearrow's sexual assault on him was committed
within the scope of his employment by Harshfield, and thus
Harshfield should be vicariously liable.  The court rejected a
variety of potential tort theories for holding Harshfield liable. 
Porter presented an affidavit from a police officer stating that
Pearrow had "previously engaged in homosexual conduct" and had been
the subject of a complaint about sexually assaulting a female
patient during a procedure while previously employed at another
medical institution.  The court found this irrelevant, since it was
possible that Harshfield could have done a competent prehiring
investigation of Pearrow and never have uncovered this information. 
Moreover, wrote Chief Justice "Dub" Arnold for the court, "Porter
has stated no connection, and we know of none, between sexual
orientation and a predisposition to commit sexual assault." 
Ultimately, the court concluded that the case should be resolved
based on a common law master & servant doctrine: whether Harshfield
should reasonably have expected Pearrow to engage in the
objectionable conduct as part of his job.  Concluding that
Pearrow's conduct was not so expectable, the court concluded
Harshfield should not be held liable for it.  

One justice, dissenting, sought to impose on health care providers
the virtual strict liability imposed on public carriers, arguing
that disrobed patients awaiting examinations in doctors' offices
are at the mercy of the doctors for protection of their persons,
thus requiring a higher standard.  A.S.L.

Illinois Appeals Court Rules on Procedural Issues in Sexual
Orientation Discrimination Investigations

Upholding a decision by the Cook County Commission on Human Rights
not to pursue a sexual orientation discrimination claim on behalf
of Luis Zunino, the Illinois Appellate Court, 1st Dist., ruled June
19 that the Commission was not required to hold a hearing after its
investigation substantiated the defendant's reasons for terminating
Zunino's employment.  __Zunino v. Cook County Commission on Human
Rights__, 1997 WL 335593.

Zunino was discharged by DHL Airways on Sept. 3, 1993, for tape
recording a conversation with the station manager without his
permission.  Zunino filed a complaint with the Commission, claiming
that the discharge was due to his sexual orientation, which he
alleged became known to DHL a few years earlier when it was
revealed by a co-worker; he also claimed that the station manager
had begun to harass him due to anti-gay bias after the
investigation of a sexual harassment charge against a co-worker by
another employee in Nov. 1991.  The Commission's staff interviewed
several witnesses and concluded that there was no violation of the
human rights ordinance, finding that Zunino's discharge was
consistent with that of non-gay workers who had been fired for
taping conversations for supervisors without authorization, and
that DHL, which had a non-discrimination policy that covered sexual
orientation, had given Zunino consistent job evaluations both
before and after it became aware of his sexual orientation.  The
Commission denied Zunino's request for a hearing, as did the
circuit court.

Upholding the Commission's decision in an opinion by Judge Cerda,
the Appellate Court concluded that the Commission is not required
to hold a hearing on a discrimination complaint if its
investigation produces no substantial evidence that a violation of
the ordinance occurred.  The court emphasized that Zunino had not
presented the Commission investigator with any evidence that he was
treated differently from other employees due to his sexual
orientation, so he failed to allege even a prima facie case of
discrimination under the loosest pleading standard.  A.S.L.

New York Republican Leader Changes Course on Domestic Partners;
Supports Successorship Rights

In a most amazing political conversion, N.Y. State Senate Majority
Leader Joseph Bruno stated publicly that he acknowledges gay and
lesbian couples for purposes of rent regulation laws.  Bruno, the
leading opponent of the state's rent regulation laws, said he was
making the switch in an attempt to demonstrate flexibility in
negotiations over the rent laws that were set to expire on June 15. 
Bruno had earlier said that only immediate legal family members
should have succession rights.  The Senate leader said he had
changed his mind after talking to fellow Republicans Gov. George
Pataki, U.S. Senator Alfonse D'Amato and some of his own state
Senate colleagues "who represent a lot of those people. . .  These
are families. . . They consider themselves families whether they
are married or not, so I think that argument
is pretty persuasive," Bruno said.  The legislative leaders and the
governor reached a last minute deal to renew rent regulation, which
included successorship rights for domestic partners, but restricted
such rights to one generation (i.e., a person, whether spouse,
child or domestic partner, who succeeds to a leasehold may not pass
it on through successorship to a subsequent occupant).  The new
law, which will extend for six years, reduces the category of those
eligible for successorship to exclude aunts, uncles, and cousins.
K.J.R. & A.S.L.

Barney Frank Proposes "Anti-Hypocrisy Act" for Military

In an attempt to capitalize on the military's maladroit handling of
its high-profile adultery cases, out, proud and gay U.S.
Representative Barney Frank (D-Mass.) proposed legislation on June
16 to decriminalize consensual sex in the armed forces -- including
adultery and "sodomy<.170>  The "Anti-Hypocrisy Act of 1997", H.R.
1915, has turned the adultery cases of Kelly Flinn and Gen. Joseph
Ralston into a debate on the gay movement's terms: the right of
consenting adults to have a private sexual relationship. "I do not
think that adult members of the military ought to be criminally
penalized for sexual activity of a private, consenting nature,"
said Frank.  

The proposed bill would not directly repeal the legislative ban on
military service by openly lesbian, gay or bisexual persons, but
would make it very difficult for the military to justify
prosecuting or discharging personnel under the "don't ask, don't
tell" policy.  Under the bill, fraternization or sexual misconduct
that undermines "good order and discipline" would still be subject
to disciplinary action.  Although not expected to pass, it will
raise the issue at a time when Defense Secretary William Cohen is
appointing panels to study the military's rules and standards on
sexual behavior.   The proposed bill has been referred to the House
National Security Committee.  K.J.R.

Law & Society Notes

 A historic first!  President Bill Clinton issued a message to all
lesbian and gay pride celebrations last month, sending "warm
greetings" and reciting his record in support of lesbian and gay
rights.  "America's continued success will depend on our ability to
understand, appreciate, and care for one another.  We're not there
yet, and that is why our efforts to end discrimination against
Lesbians and Gay men are so important."  Although Clinton issued
messages to individual gay pride celebrations upon request
beginning in 1995, this is the first time any U.S. president has
issued a blanket message to all gay pride celebrations in the
country.  __Washington Blade__, July 4.  There were also
unconfirmed reports that Clinton will shortly name an openly-gay
diplomatic to an ambassadorial post requiring Senate confirmation. 
Clinton has been gun-shy on openly-gay appointments that would have
to go to Sen. Jesse Helms's (R-N.C.) Senate Foreign Relations
Committee for confirmation, and had backed away from a nomination
of openly-gay Jim Hormel as Ambassador to Fiji a few years ago
after opposition surfaced based on Fiji's sodomy law.  __Washington
Blade__, Jun 27.

Hoping finally to achieve enactment of a gay rights law on the 20th
anniversary of the Anita Bryant repeal campaign of 1977, Dade
County activists pinned hopes on a measure proposed by County
Commissioner Bruce Kaplan that would add sexual orientation to the
county's civil rights ordinance.  Christian Coalition members
jammed the Commission's meeting June 17, prevailing on the
Commissioners to pass instead a CC-inspired "family values"
resolution and to vote down Kaplan's proposal 7-5.  The City of
Miami, within Dade County, prohibits sexual orientation
discrimination, but its ordinance has no effect in the suburban
parts of the county.  On July 9, the Commissioners rejected an
attempt to revive the issue.

Legislators in Nebraska, Delaware and Louisiana passed hate crime
laws that include "sexual orientation"-motivated crimes during
June.  Nebraska Gov. Ben Nelson signed his state's bill on June 12,
and Gov. Thomas Carper of Delaware announced he would sign his
state's bill during a ceremony on July 12.  Republican Gov. Mike
Foster of Louisiana had not announced whether he would sign as we
went to press.  __Washington Blade__, July 4.

On June 27, Connecticut Gov. John Rowland signed a bill banning
anti-gay discrimination in Connecticut public schools, following
the example of laws previously passed in Wisconsin and
Massachusetts.  In addition, the Rhode Island Board of Regents
issued a policy statement to similar effect governing that state's
public schools on May 22.  __Washington Blade__, July 4.

A new domestic violence law went into effect in Virginia on July 1,
using the phrase "household member" to describe those who might
seek assistance from law enforcement officers under a policy
intended to separate warring family members without making
unnecessary arrests.  However, the definition of "household member"
when dealing with unmarried persons refers to persons who
"cohabit," and there are fears that local police will refer to a
1994 attorney general's opinion holding that cohabitation only
refers to opposite-sex couples in determining whether the law
applies.  __Washington Blade__, July 4.

The Florida District Court of Appeal rejected an appeal from a
first degree murder conviction in __Terrill v. State__, 1997 WL
345988 (June 25), in two sentences as follows: "We find no error in
the trial court's exclusion of proffered `expert' testimony that
the crime occurred while [the defendant] was `subject to a
homosexual rage, which explains the form of the killing and how he
carried the killing out and why it happened under those
circumstances.'. . . There is no other error." (citations omitted). 


In a rare reversal, the U.S. Court of Appeals for the Armed Forces
held in __United States v. Johnson__, 1997 WL 370068 (July 7) by a
vote of 3-2 that the Court of Criminal Appeals erred in not
affording Navy Lt. Charles W. Johnson a hearing on his claim that
higher-ups at the Pentagon interfered to block the convening
authority from softening his final court-martial sentence on
charges of engaging in oral sex with his 16-year-old son.  It seems
that somebody in the Pentagon faxed to the __Washington Blade__ a
copy of a memo written by the legal counsel to the Chief of Naval
Personnel concerning procedures for discharge of homosexuals, which
appeared to reflect some contact with the convening authority in
Johnson's case, the convening authority was changed, and Johnson
was told by his executive officer that his commanding officer was
being pressured from above to reverse his original position. 
(Johnson's c.o. originally supported retaining him in the service.)

The ACLU of New Jersey and the ACLU's Lesbian & Gay Rights Project
have jointly filed suit in New Jersey Superior Court, Bergen
County, challenging the refusal of the state's Department of Human
Services to approve a joint adoption by two gay men.  __Holden v.
Dept. of Human Services.__ The gay couple, Jon Holden and Michael
Gallucio, are foster parents of Mark, who was born HIV-exposed and
cocaine addicted.  They were told after exhaustive screening by DHS
that they could jointly adopt Mark, but when they applied, DHS took
the position that first Michael could adopt, and then Jon could
apply for a "second-parent" adoption, as recently recognized under
N.J. cases.  DHS argues that its existing policies only allow
adoptions by married couples or single persons.  In its suit, the
ACLU claims that DHS's handling of this case is discriminatory,
illegal, and harmful to Mark.

The N.Y. Appellate Division, 1st Depart., upheld the
constitutionality of New York City's new zoning regulations for
sexually-oriented establishments in a decision released just as we
were going to press.  A full analysis of the ruling in
__Stringfellow's of New York v. City of New York__ (July 10) will
be published in the September issue of __Law Notes__.  Press
reports indicated that the opinion was brief and contained no
detailed analysis of the constitutional issues.  __NY Times__, July
11.

Rejecting a constitutional challenge to a Los Angeles zoning
ordinance, the California Court of Appeal, 2nd Dist., rejected a
petition for writ of mandate from the operator of an adult sex shop
in the Canoga Park area of L.A., who was ordered to sharply curtail
the hours of operation of his store.  __E.W.A.P., Inc. v. City of
Los Angeles__, 1997 WL 377067 (July 9).  Le Sex Shoppe was a 24-
hour operation.  Police officers documented heavy gay male cruising
and sexual activity in the vicinity of the shop during late night
and early morning hours, and the zoning authorities received
several letters from members of the public.  Zoning authorities
ordered that the shop be closed from 10 p.m. to 9 a.m.  The
petitioner's lament that this would reduce his business by 46
percent was found unavailing by the court, which also rejected 1st
Amendment and vagueness challenges to the underlying zoning
statute, observing that the police and zoning activity was focused
on the "effects" of the business being opened, and that, at least
as to this petitioner, there could be no question that the
ordinance applied to this situation, precluding a vagueness
challenge.

California state auditors are investing charges that the state's
Department of Alcoholic Beverage Control is discriminating against
gay-oriented businesses in enforcing the state's alcoholic beverage
regulations.  Critics of the ABC note that there are twice as many
inspections of gay bars as would be predicted based on their
percentage of all licensed facilities subject to ABC regulation. 
__Los Angeles Times__, July 9.

A Harris County, Texas, jury sentenced a man implicated in a
vicious anti-gay murder case to 10 years probation.  Ronald
Gauthier's half-brother stabbed Fred Mangione 35 times with a deer-
gutting knife outside a gay bar in Katy, Texas, causing his death. 
The prosecutor claimed that Ronald held Mangione down while his
half-brother did the stabbing.  (The half-brother is now serving a
life sentence for the crime.)  Gauthier claimed he was not present
during the crime, although blood was smeared on his pants.  A
police officer testified that both brothers told him they had
murdered a "fag;" and there was similar evidence from bar patrons
about statements made by the brothers after the crime.  The judge
has imposed various strict restrictions on Gauthier, and will
require him to write a letter of apology to Mangione's surviving
lover.  __Houston Chronicle__, June 29, July 1.

Jan Overholtzer won a $360,000 jury award in her sexual orientation
discrimination suit against the West Contra Costa County Unified
School District.  Ironically, both Overholtzer and one of the
supervisors she charges with discrimination are lesbians.  $15,000
of the award was designated as punitive damages.  Overholtzer
claimed she was constructively discharged after she told her
immediate boss that she was a lesbian, as a result of harassment
and demeaning treatment.  __San Francisco Examiner__, July 4.

__The Recorder__, a California legal newspaper, reported April 8
that Retired Alameda County Superior Court Judge Roderic Duncan,
ruling on a lesbian co-parent's visitation petition, opined that in
an appropriate case a limited "visitation guardianship" should be
awarded to a co-parent "if it is proven that a natural parent harms
her children unnecessarily by denying them visitation with a
meritorious __de facto__ parent who is out of favor."  However, in
the case at hand, __Guardianship of Children of Lisa Wagner__, No.
248043-1 (March 31), Duncan found that petitioner Kathleen Crandall
had made "serious mistakes" in her relationship with the children
that precluded making such an award in her favor.  Alice Philipson,
Crandall's lawyer, planned to appeal Duncan's ruling.  

The N.Y. Appellate Division, 1st Depart., affirmed dismissal of a
sexual orientation discrimination complaint against a cooperative
apartment building in __Fine v. Berman__, 657 N.Y.S.2d 6 (April
22), finding that the co-op board had adequate grounds to turn down
the gay applicant, based on (1) admittedly untruthful answers on
his application form, (2) his persistent tardiness in paying rent
to his present landlord, and (3) his lack of any apparent assets.

New York appellate courts continue to exhibit hostility to tenant
succession claims.  In __226 Company v. Becker__, NYLJ, 6/3/96, p.
25, col.1, Appellate Term, N.Y. County, reversed a successorship
decision by Judge Margaret Taylor.  Taylor had found that the
respondent and the deceased tenant were non-traditional family
members, having a quasi-father-and-son relationship.  They lived
together in the apartment for five years, during which they
travelled together on vacations and the tenant had financially
supported the respondent.  However, appellate term noted that they
did not intermingle finances, jointly own property, or formalize
any legal obligations, that the tenant did not name respondent as
a will beneficiary, give him a power of attorney or name him on a
health care proxy, and that relatives of the tenant cleaned out his
personal belongings from the apartment.  It strikes us that
appellate term was applying criteria more appropriate to a domestic
partnership than to a non-traditional father-and-son relationship
in evaluating this successorship claim.  A.S.L.

International Legal Developments

The European Union has officially gone on record opposing
discrimination based on sexual orientation.  In a new treaty
approved by the leaders of the fifteen European Council nations in
Amsterdam in June, the relevant article provides: "Without
prejudice to the other provisions of this Treaty and within the
limits of the powers conferred by it upon the Community, the
Council, acting unanimously on a proposal from the Commission and
after consulting the European Parliament, may take appropriate
action to combat discrimination based on sex, racial or ethnic
origin, religion or belief, disability, age or sexual orientation." 
While this article doesn't directly outlaw any particular act of
discrimination, it does provide authorization by the member states
for the Council to pursue claims of discrimination through
appropriate channels.  This is a major breakthrough, resulting from
years of lobbying by the International Lesbian and Gay Association
and gay rights organizations in many of the member states of the
European Union. * * * Reuters reports that San Marino, "the world's
oldest and smallest republic," dating from the year 301 A.D., has
repealed its laws against homosexual conduct by a parliamentary
vote of 28-21 with one abstention.  The repealed laws had a maximum
penalty of one year in prison.  __Orlando Sentinel__, July 10. * *
* A new Danish law regulating donor insemination procedures in
clinics and hospitals will apparently bar lesbians or single women
who are not in relationships with men from availing themselves of
these services, by restricting eligibility for such procedures to
opposite-sex couples who are married or in marriage-like
relationships, according to an internet posting by the Danish gay
rights organization.  Enterprising lesbians can perform
insemination procedures in their homes, which are not regulated by
this statute. * * * __Chicago Defender__ (June 12) reports per UPI
dispatch that a Canadian Public Service Staff Relations Board ruled
affirmatively on the application of Ross Boutlier that a gay
federal employee is entitled to marriage leave, even though his
"spouse" is of the same sex.  Board Chairman Yvon Tarte commented,
"the granting of such family-related leave in situations such as
the one I am faced with in this case, merely recognizes the fact
that the homosexual community possesses the right to establish
families in pursuance of their sexual orientation. . . The law is
never static." * * * No gay marriage yet in South Africa, but gay
divorce is on the horizon.  GayNet Cape Town reports that Philip
van Rensburg is suing his wealthy former lover, Hugo Ehlers, for
half of Ehlers's assets on the dissolution (at Ehlers's
instigation) of their 13-year relationship. * * * Israel's Supreme
Court heard argument on June 24 in a case brought by the
Association for Civil Rights in Israel and gay rights groups
challenging the refusal of the Education Ministry to allow the
broadcast of a documentary about lesbian and gay youth in Israel. 
The Ministry, under the control of orthodox religious forces in the
Likud government, claimed that the documentary was not adequately
"balanced" because all anti-gay views were omitted.  Each of the
three justices presiding at the hearing expressed serious doubts
about the Ministry's arguments, and at the conclusion of the
hearing, the court gave the Ministry two weeks to respond to a
suggestion that the documentary be broadcast and then followed
immediately be a "balanced" panel discussion of the subject,
according to a report by Moshe Reinfeld in __Ha'aretz__, the
Israeli newspaper, on June 25. * * * Relying on a 1994 Israel
Supreme Court, the Haifa magistrate's court decided that it could
issue an order of protection to a lesbian under the country's law
against family violence.  The lesbian couple in the case signed a
shared-living contract drafted by a lawyer in 1995; the applicant
for the protection order alleges that her partner is an alcoholic
who comes home drunk, humiliating, cursing and threatening her, and
that they are in the process of dissolving their relationship. 
__Ha'aretz__, June 3. * * * Press reports from Belgium indicate
that the Flemish regional government is planning to amend tax
regulations to entitle registered domestic partners the same
reduced inheritance tax rates as marital partners, according to an
Internet posting by the International Lesbian & Gay Assoc'n. * * *
The newly-elected French government has announced through Justice
Minister Elisabeth Guigou that it intends to establish a "contract
of social union" by which same sex couples can obtain legal status
and equal rights with heterosexuals in matters such as housing,
inheritance, and taxes, according to a Reuters report from Paris on
June 23. * * * The __Washington Blade__ reported that Spain's
parliament approved a domestic partnership bill on May 27,
described as an "extensive civil rights package." * * * Portugal's
Socialist Party is championing a Partnership Bill that will give
many of the rights of married couples to registered same-sex
partners, and the country's lesbian and gay rights organization is
predicting passage of the measure in 1998.  A.S.L.

Professional Notes

The American Bar Association's annual meeting in San Francisco July
31-Aug. 6 will include several programs of special interest to
__Law Notes__ readers: "Removing Legal Barriers to Needle Exchange
Programs: Show Me the Data!" (Aug. 3); "Sexual Orientation
Discrimination in the Legal Community" (Aug. 4); "Same Gender
Couples: Do They Have Any Rights?" (Aug. 1); "Fairness & Equal
Opportunity for All? Same Sex Marriage, Domestic-Partner Benefits
and Job Discrimination Based on Sexual Orientation" (Aug. 1).  In
addition, the annual Allies for Justice Award ceremony, co-
sponsored with the National Lesbian and Gay Law Association, will
be held on Aug. 1 at the Hotel Nikko, 5:30 p.m.

The __NY Law Journal__ reported July 7 that the National
Association for Law Placement's second annual report on openly-gay
attorneys at major firms showed a marked increase in major New York
City firms willing to provide such information for the use of law
students making decisions about where to apply and where to accept
offers.  Among the firms responding to the question on NALP's
survey, Milbank Tweed Hadley & McCloy had the largest percentage of
openly gay attorneys, 5.2 percent (which stands to reason, since
Milbank was the first NYC firm to pay an associate's dues in LeGaL,
among the first to ban sexual orientation discrimination, and the
first in NYC to offer domestic partnership benefits to lesbian and
gay staffers).  Eight firms reported that more than 2 percent of
their attorneys are openly gay, although one was estimating rather
than reporting an actual number.  NALP officials cautioned that the
actual number is probably higher, since the survey only asked about
"openly" lesbian or gay attorneys known to firm management.  Some
firms continue to resist answering the question, contending they
are protecting the privacy of their attorneys.

A Task Force on Gender, Racial, and Ethnic Fairness established by
the U.S. Court of Appeals for the Second Circuit has issued a draft
report recommending that the courts of the Circuit establish
policies banning sexual orientation discrimination.  The June 10
report thus goes beyond the scope of the original charge to the
Task Force, which did not include sexual orientation among the
subjects for study.  However, announcement of the establishment of
the Task Force prompted communications from LeGaL and the NY City
Association of the Bar urging the Task Force to take account of
sexual orientation issues, with apparent success.  Because many EEO
laws exempt the federal court system from coverage as a matter of
separation of powers, it is up to the courts to adopt their own EEO
policies.  The Second Circuit covers New York, Connecticut and
Vermont, and employees almost 2,000 persons.  __BNA Daily Labor
Report__ No. 115, 6/16/97, at A-4.

George Northrup, a 53-year-old Dane County, Wisconsin, judge
discussed his life as a gay judge with the __Wisconsin State__
newspaper in an article published July 5.  Northrup, who has never
formally "come out" publicly, is dying from mesothelioma, having
lost his partner of 21 years to AIDS recently.  Northrup contends
that most people in the courts and justice system in Dane County
knew he was gay, but that there were almost no problems over his
24-year career in the system.  "Whether you're gay or straight, the
issue is how you handle yourself, not your sexual orientation," he
stated.  

Sheila James Kuehl, an openly lesbian attorney who is speaker pro
tem of the California State Assembly, has won election as the first
openly lesbian or gay member of the Harvard University Board of
Overseers, a governing body of America's oldest major university. 
Kuehl is a 1978 graduate of Harvard's Law School, and previously
won fame as a television actor in the Dobey Gillis series. 
__Washington Blade__, June 27.

Openly lesbian attorney Gigi Sohn, former chair of GAYLAW, the gay
and lesbian attorneys group in Washington, D.C., has won election
to the D.C. Bar Association's Board of Governors.  In New York
City, openly gay Criminal Court Judge Michael R. Sonberg, a LeGaL
member, was recently elected Secretary of the Association of the
Bar of the City of New York, the nation's largest municipal bar
association. A.S.L.

AIDS & RELATED LEGAL NEWS BRIEFS 

Federal Court Lets HIV+ Doctor Maintain Discrimination and Common
Law Actions Against Employer

U.S. District Judge Andersen (N.D. Ill.) held on May 23 that Dr.
Bari Parks, who is HIV+, may bring claims of disability
discrimination, breach of contract, and tortious interference with
a contractual relationship against Female Health Care Associates
(FHC) for failing to hire her as agreed after learning of her HIV
status.  __Parks v. Female Health Care Associates, Ltd.__, 1997 WL
295870.  This case departs from the usual approach in which courts
have almost automatically found HIV+ doctors to be disqualified
from suing under disability discrimination law.

On April 22, 1994, Dr. Parks, an obstetrician and gynecologist,
received a draft one-year employment contract from FHC with a July
18, 1994, start date.  FHC notified her by mail on May 19 that her
start date was changed to July 25.  On June 10, Parks received a
letter from Dr. John Hobbs, an FHC shareholder, confirming FHC's
agreement to contract modifications, including a provision that
termination could only be "with cause."  Over the rest of June and
the first three weeks of July, Parks executed several FHC documents
anticipating her employment.  On July 20, FHC held a reception at
Rush-Presbyterian Hospital, her workplace location, in her honor. 
The night of the reception, Parks fell ill and was admitted to the
emergency room, where she was diagnosed with HIV and remained
hospitalized until July 31.  Hobbs and other FHC shareholders, Drs.
Lawson and Gorens, visited her several times and reassured her that
her illness would not affect her employment.  September 14 was her
new start date.  In the interim, defendants were meeting with
Rush-Presbyterian officials to see what effect Parks's HIV status
would have on her job. 

When she reported for work on September 14, Parks learned that
before she could begin, she must petition Rush-Presbyterian for
permission to work and that Hobbs would have to contact certain
medical personnel about issues regarding HIV+ healthcare workers. 
Hobbs said he would contact Parks by September 19 regarding the
status of the petition.  Parks heard nothing by September 23 and
started calling and leaving messages for Hobbs.  She learned in
October that Hobbs never prepared the petition, and FHC did not
return her calls.

Parks filed an EEOC complaint under the Americans With Disabilities
Act (ADA).  On February 26, 1996, nearly a year later, EEOC mailed
a right to sue letter to her attorney, but Parks alleged that she
did not receive letter until September 18, and she filed this
action on October 30.  Defendants moved to dismiss, arguing that
Parks's ADA claim is time-barred and that she is not a "qualified
person with a disability" because her HIV status would pose a
significant risk to the health and safety of patients, which risk
cannot be eliminated by reasonable accommodation.  

Judge Andersen reminded defendants that the ADA expressly
incorporates the procedures of Title VII, which provides 90 days to
file suit after the plaintiff receives a right to sue letter. 
Since Parks claimed the letter was not delivered to her or her
attorney until September 18, the court considered the complaint
timely for purposes of this motion, but warned that summary
judgment could be granted if discovery produced evidence that
Parks's attorney received the EEOC letter much earlier.

On Parks's substantive qualifications as a plaintiff, Andersen
ruled that Parks may be able to prove that she is "an individual.
. . who, with or without reasonable accommodation, can perform the
essential [job] functions," because reasonable accommodation of her
disability may have been possible.  Andersen refused to grant
summary judgment prior to discovery solely on the basis of
accumulated cases granting judgment against other HIV+ health care
workers, commenting, "It is appropriate for this court to make such
a determination only after review of the facts and a review of the
reasonable medical judgments and objective evidence."

Regarding the breach of written and oral contract, defendants
sought dismissal on three grounds: (1) the contract was never
signed by defendants, (2) any oral contract is barred by the
Statute of Frauds and terminable at will, and (3) Parks failed to
allege that she met and performed all conditions precedent to 
enforcement.  The court ruled that FHC's failure to send Parks an
executed copy does not warrant dismissal, since Parks had not yet
had the benefit of discovery to uncover a fully-executed copy or to
establish that a meeting of the minds took place.  Even if FHC
never executed the contract, Andersen pointed to the extensive
correspondence setting forth terms of an employment contract, which
might be sufficient to meet the Statute of Frauds.

On the oral contract issue, Andersen gave Parks the benefit of the
doubt due to uncertainty whether the agreement was finalized on
June 10, 1994, with a start date of June 25, 1994, as defendants
submit (and thus unable to be completed within one year of that
start date), or sometime "throughout June and the first three weeks
of July of 1994 [when Parks] received numerous documents and
instructions from FHC. . . and [Parks] was requested by FHC to
execute. . . various documents in preparation for her employment.
. ."  Furthermore, defendants' argument that any oral contract is
terminable at will failed, because the parties' negotiations showed
that the agreement was for a specific duration and terminable only
with cause.  

The court further found that Parks properly stated a claim for the
tort of intentional interference with a contractual relationship. 
Under Illinois law, the tort requires the existence of a valid
business expectancy or contractual relationship, defendant's
knowledge thereof, defendant's intentional interference which
prevents the realization of the business expectancy or causes
breach of the contract, and damages.  Defendants argued that their
interference was justified in the interest of public safety and
that Parks must plead that their actions were malicious.  The
court quickly clipped the malice argument, stating that it was no
longer necessary to establish malice in a tortious interference
action.  __Roy v. Coyne__, 630 N.E.2d 1024 (Ill. App., 1st Dist.
1994).  Moreover, Parks's pleading sufficiently controverted the
defendant's justifications.  Parks did not expressly allege that
defendants' tortious interference with business expectancy was
likewise unjustified. but Andersen granted leave to amend the
complaint on this point.  K.J.R.

HIV+ Tattoo Earns Discharge for Hospital Worker

An hospital employee's refusal to cover up his "HIV-Positive"
tattoo was misconduct sufficient to justify his discharge, ruled
the U.S. Court of Appeals for the 9th Circuit in an unpublished
disposition in __Baldetta v. Harborview Medical Center__, 1997 WL
330648 (June 11).  Baldetta alleged a violation of the Americans
With Disabilities Act and sec. 504 of the Rehabilitation Act.  The
court found that the hospital had allowed him to continue working
after learning he was HIV+, and only took action when he reported
to work one day with the tattoo and refused to cover it up while on
duty.  Since the tattoo "was not an unavoidable physical
manifestation of Baldetta's disability," the trial court correctly
concluded that Baldetta was not discharged because of his HIV-
status.

Baldetta also asserted 1st Amendment claims, based both on the
order to cover up his tattoo and on an order that he not speak
about HIV/AIDS with hospital patients.  Although the court found
that wearing an "HIV-positive" tattoo does constitute speech
protected by the 1st Amendment, the protection in the context of a
public employment workplace is not absolute, and must be weighed
against potential disruption.  The hospital presented statements by
several doctors that "display of the tattoo would cause stress in
severely injured or ill patients which could hinder their
recovery," thus the hospital had presented sufficient evidence that
Baldetta's speech was "likely to be disruptive."

Baldetta fared better on his other 1st Amendment claim, the court
of appeals finding that the broad order banning all HIV/AIDS speech
with patients raised constitutional concerns, especially when
Baldetta showed that one HIV+ patient had initiated discussion with
him.  The court remanded this issue to the district court "to weigh
Baldetta's interest in this speech on a matter of public concern
against Appellees' interests in restricting all HIV or AIDS-related
speech" between Baldetta and patients.

The brief opinion does not indicate what Baldetta's position was in
the hospital, but it seems unlikely that he is a doctor, and we
would guess he is probably not a health care professional.  A.S.L.

Illinois Appellate Court Rules Against Emotional Distress Claim in
Needlestick Case; Justices Split on Reasoning

A 3-judge panel of the Illinois Appellate Court, 1st Dist.,
unanimously held in __Majca v. Beekil__, 1997 WL 346667 (June 24),
that the plaintiff's fear of contracting AIDS after she was cut by
a scalpel containing residue from an AIDS patient was not
compensable.  The cut occurred when Eileen Majca, an office
employee of a doctor who was responsible for cleaning the office
and taking out trash, pushed her hand into a can of overflowing
medical waste left by Dr. Lacher, an office tenant who later died
from AIDS. In a negligence suit seeking damages for her fear that
she may contract AIDS, Majca and her husband sought compensation
against Dr. Lacher's estate and another office tenant for medical
expenses and pain.

Although Majca did not know of Dr. Lacher's illness at the time of
the cut, she sought immediate medical treatment, took a
precautionary HIV test which came out negative, and took another
test 3 months later with the same result.  Eight months after the
cut, Dr. Lacher died of AIDS; on the same day Majca learned for the
first time of his condition. She testified she "just lost it," a
doctor gave her a sedative because she was "just so worked up," and
she "started vomiting."  She took another HIV test one month later,
which was also negative.

Writing for the court and affirming the trial court's grant of
summary judgment to the defendants, Justice McNulty ruled that
Majca adequately presented evidence of actual exposure and that her
fear was reasonable, given the deadly nature of AIDS, but that such
fear is compensable only to the extent it is supported by medical
evidence of an increased risk of contracting the disease caused by
the negligent exposure.  Justice McNulty ruled further that a
plaintiff must mitigate her fear by learning what she can about the
likelihood she contracted the disease and that such fear could not
be augmented by ignorance concerning AIDS and its transmission.

Applying these principles to limit the permissible recovery period,
Justice McNulty held that the period began only when Majca learned
that Dr. Lacher was HIV positive, since her fear from the time she
was cut and before she knew of Dr. Lacher's condition, though
reasonable, was based on facts showing only a remote possibility of
HIV infection.  As to the end of the period, Justice McNulty took
note of studies showing most persons contracting HIV in the United
States will test positive within 6 months after the initial
exposure.  Since Majca did not learn of Dr. Lacher's HIV condition
until 8 months after the cut, McNulty held that Majca had a duty to
take another test immediately and could not hold defendants
responsible for her one month delay thereafter in being re-tested.

Justice McNulty concluded that by the time of the third test
Majca's reasonable fears were not severe enough to warrant
compensation against Dr. Lacher's estate.  Majca did not appeal
from the trial court's order granting summary judgment to Dr.
Beekil (who was neither a partner nor agent of Dr. Lacher), which
was based on the finding that he had no way of knowing of the
dangerous condition created by Dr. Lacher's negligence.

In a separate opinion, concurring in the result but dissenting in
part from the reasoning in the majority opinion, Justice DiVito
agreed that because there was no "window of anxiety" there could be
no recovery, but objected to Justice McNulty's discussion of the
standard for determining whether fear of HIV infection is
compensable as being unnecessary and confusing.  In DiVito's view,
severity is not a requirement for negligent infliction of emotional
distress as it is with an intentional tort.  The controlling issue
is proximate cause, and Majca failed to establish that Dr. Lacher's
negligence proximately caused her emotional distress.  DiVito also
concluded that Majca failed to show actual exposure.  Justice
Rakowski, in an additional concurring opinion, agreed that the
absence of a "window of anxiety<!70> was dispositive and discounted
the standards set forth in both the other opinions, saying that
since the two other justices did not agree, those discussions did
not "even rise to the level of obiter dictum."  A.J.L.

D.C. Circuit Sides With EEOC on ADA Disability Estoppel Issue

In a pair of panel decisions issued June 20, the U.S. Court of
Appeals for the D.C. Circuit ruled that disability discrimination
plaintiffs are not estopped from bringing suit under the Americans
With Disabilities Act (ADA) as a result of being awarded disability
benefits, either under the Social Security Act or under a private
disability insurance policy.  __Swanks v. Washington Metropolitan
Area Transit Authority__, 1997 WL 335143, 6 A.D. Cases 1544;
__Whitbeck v. Vital Signs, Inc.__, 1997 WL 335140, 6 A.D. Cases
1540.  Circuit Judge David Tatel wrote both opinions, but different
judges made up the balance of each panel.

The ADA requires that a plaintiff allege he or she is a qualified
person with a disability, i.e., a person who, with reasonable
accommodation, can perform the job in question.  Some courts (most
prominently the U.S. Court of Appeals for the 3rd Circuit in
__McNemar v. Disney Store, Inc.__, 91 F.3d 610 (1996), cert.
denied, 117 S.Ct. 958 (1997)) have found that a plaintiff who has
applied for and received disability benefits is estopped from
pursuing an action claiming that they are a qualified person with
a disability, because the Social Security disability system
requires a finding that an individual is unable to work.  The
__McNemar__ case involved a person with HIV/AIDS who submitted the
required certification for disability benefits and simultaneously
pursued an ADA claim protesting his discharge.

Judge Tatel went to the heart of the matter in __Swanks__, pointing
out that the estoppel approach "would force disabled individuals
into an `untenable' choice between receiving immediate subsistence
benefits under the Social Security Act or pursuing discrimination
remedies.  Forcing such a choice would undermine the pro-employment
and anti-discrimination purposes of the two statutes."  In
__Whitbeck__, the employer sought to invoke an estoppel defense
based on the plaintiff's receipt of disability benefits under a
private insurance policy.  Wrote Tatel: "Where, as here, an insurer
makes disability determinations without regard to whether the
insured can work with reasonable accommodation, an award of
benefits does not preclude a later claim that the insured can work
with accommodation."

Tatel noted that several other circuit courts have issued rulings
inconsistent with the estoppel approach taken by the 3rd Circuit in
__McNemar__, but enough courts have followed the 3rd Circuit
decision to suggest that a certiorari petition in either of the
D.C. Circuit cases might provoke the Supreme Court to reconsider
its evasion of the issue earlier this year when it refused to
review __McNemar__.  The outcome of this controversy is, of course,
of crucial importance to people with HIV/AIDS.  A.S.L.

D.C. District Court Embraces EEOC Guidelines on Medically-
Correctable Conditions Under ADA

Another district court has endorsed the EEOC's guidelines for
deciding whether an individual with a medically-correctable
impairment is a person with a disability under the Americans With
Disabilities Act.  The EEOC has opined that the determination
should be made without regard to "mitigating measures" that might
correct the impairment.  

U.S. District Judge Friedman wrote in __Fallacaro v. Richardson__,
1997 WL 314843 (D.D.C. June 6), that "the EEOC's `no mitigating
measures' interpretation is eminently reasonable, consistent with
the language and purposes of the Rehabilitation Act, and supported
by the legislative history of the ADA. . .  Individuals who need
wheelchairs, artificial limbs, hearing aids and other prosthetic
devices clearly have impairments that may substantially limit their
major life activities.  Neither as a matter of law nor of common
sense would we say that they are not impaired or disabled because
their prosthetic device happens to be exceptionally good.  The
EEOC's `no mitigating measures' interpretation embodies the
sensible position that the use of a prosthetic aid or medication
does not eliminate the underlying disability although it may, as a
practical matter, reduce or even eliminate its effects."

As people living with AIDS benefits from new treatments and are
physically able to re-enter the workforce, the EEOC interpretation
will be crucial to ensuring that they continue to be protected from
discrimination by the ADA and sec. 504 of the Rehabilitation Act. 
The lower federal courts are divided on the issue.  A.S.L.


Two Federal Circuits Refuse Downward Sentencing Departures for
Defendants with AIDS

In __Montanez-Anaya v. U.S.__, 1997 WL 351634 (1st Cir. June
20)(unpublished disposition), and __U.S. v. Smith__, 1997 WL 346045
(4th Cir. June 24)(unpublished disposition), federal appeals courts
reiterated their now well-established position that defendants with
HIV/AIDS are not normally entitled to downward departures under
federal criminal sentencing guidelines solely because of their AIDS
diagnosis.  Both courts emphasized that a downward departure would
be in order only where the district court concluded that the
defendant's physical condition was so extraordinarily compromised
that he could not possibly commit further criminal acts or present
any danger to society.  Reviewing the district courts under an
abuse of discretion standard, the appeals courts found no basis for
upsetting the sentences in either case.  A.S.L.

1st Circuit Upholds Damages Against Veterans Administration For
Malpractice in HIV Diagnosis

A unanimous panel of the U.S. Court of Appeals for the 1st Circuit
upheld a damage award of $33,750 to Lucas Lucarelli, a disabled
veteran of the Air Force, for being informed by a Veterans Hospital
in Puerto Rico that he was HIV+ when, in fact, he was not. 
__Lucarelli v. U.S.__, 1997 WL 351626 (June 18) (unpublished
disposition).  Lucarelli was admitted to a VA hospital in Puerto
Rico for back surgery, and submitted to HIV testing.  The test was
negative, but Lucarelli was not informed at the time of his
surgery.  In March or April 1993, Lucarelli received a letter from
the hospital dated December 15, 1992, stating that he was HIV+. 
Lucarelli was tested again in December 1993 and was negative.  He
sued under the Federal Tort Claims Act, and won damages in a bench
trial before Judge Juan M. Perez-Gimenez.  Appellants claimed that
the district court erred in calculating damages, but the court of
appeals, reviewing the decision under the "clearly erroneous"
standard, found no clear error and affirmed the award without
discussing the details of the appellants' claims.  A.S.L.

Illinois Federal Court Refuses to Dismiss HIV+ Patient's Claim
Under Rehab Act

In __A.R. v. Kogan__, 1997 WL 294494 (U.S.Dist.Ct., N.D.Ill., May
29), the court held that an HIV+ person is "handicapped" under the
federal Rehabilitation Act.  It upheld the plaintiff's right to
bring a discrimination claim against a doctor who refused to treat
her after learning of her condition.

In denying the doctor's motion to dismiss the claim, Judge Milton
Shadur ruled that A.R. met all four requirements for asserting a
discrimination claim under the Act. In addition to being
"handicapped," she was discriminated against solely for that
reason, the activity in question receives federal financial
assistance, and she is "otherwise qualified."  Shadur rejected the
doctor's argument that A.R. was not "otherwise qualified," pointing
out that he had not initially refused her as a patient when she
exhibited symptoms which could have been suffered by non-HIV+
patients and only refused to treat her after he tested her and
learned of her condition.  Shadur cautioned that the action was
only at the motion stage where the complaint allegations must be
viewed most favorably to the plaintiff, and noted that the facts
remained to be established at trial.

The court also upheld A.R.'s claim for intentional infliction of
emotional distress under state law.  Shadur ruled that, in light of
the sensitive nature of her claim, it could not be said as a matter
of law that the plaintiff would be unable at trial to prove facts
which meet the stringent requirements for establishing such a claim
in Illinois.

The court dismissed the third claim brought under the Americans
with Disabilities Act of 1990, (ADA) because it had been framed to
seek only damages and not injunctive relief.  Shadur ruled that the
ADA specifically limited claims of private plaintiffs in public
accommodations cases to the latter relief and allowed monetary
damage relief only when sought by the Attorney General. A.J.L.

Illinois Appellate Court Disallows HIV Emotional Distress Claim by
Uninfected Dental Patients

A person can only state a claim for emotional distress resulting
from a possible HIV infection if there is a substantial, medically
verifiable possibility of contracting AIDS from the alleged
exposure, held the Appellate Court of Illinois, 1st District, in
__Doe v. Northwestern University__, 1997 WL 330361 (June 17).

In July 1991, Northwestern University informed the six anonymous
plaintiffs that an HIV+ dental student performed both invasive and
uninvasive treatments upon them.  The letter stated that the risk
of transmission of the HIV virus was very low, but that as a
precaution an HIV test should be performed.  Subsequent tests
revealed none of the plaintiffs contracted the virus. Also, none of
the plaintiffs contend that the dental student bled during any of
the procedures he performed.  The six plaintiffs subsequently
filled a suit against the University citing several causes of
action, including emotional distress resulting from their fear of
contracting HIV from the student. 

The trial court dismissed this claim, holding that in order to
state a claim of emotional distress, plaintiffs must allege that
they were actually exposed to the virus.  Plaintiffs contested this
requirement of actual exposure, and appealed the judgment. Upon
review, the court affirmed the trial court's decision, and
articulated a new test to determine when a claim of emotional
distress based on possible HIV transmission is valid.  Writing for
the court, Justice Jill McNulty stated that a plaintiff who fears
he or she may have contracted AIDS because of a defendant's
negligence may only collect damages if there is a substantial,
medically verifiable possibility that the virus was contracted. 
The opinion states that fear resulting from misconceptions and
ignorance of HIV and AIDS is uncompensable, and that actual
exposure to the virus is not necessary to state a claim.  The court
held that the possibility of transmission from dental student to
patient was too low to allow plaintiffs to recover for their
emotional distress. 

In concurrence, Justice Gino DiVito argued for the requirement of
actual exposure.  DiVito explained that the majority's test that
possibility of transmission must be substantial and medically
verifiable is open to interpretation and possibly vague.  In his
opinion, DiVito argues that the plaintiffs' injuries were not from
transmission, but from the letter they received informing them of
their possible infection.  According to DeVito, the actual exposure
requirement will confine litigation to cases where an actual
possibility of infection caused the distress.  S.M.R.

Florida Appeals Court Quashes Order for HIV-Testing of Criminal
Defendant

Strictly construing the state's law requiring courts to order HIV-
testing of defendants at the request of victims, the Florida
District Court of Appeal, 4th Dist., quashed a testing order in
__James v. State__, 1997 WL 330537 (June 18), because there was no
evidence that the factual prerequisite of the statute is met.  In
this case, defendant Lakisha James stabbed the victim with a steak
knife.  There was no allegation that James ever bled on the victim. 
Under the statute, sec. 960.003(2), testing shall be ordered if the
crime involves "transmission of body fluids from one person to
another," in which case the court shall order "such person to
undergo HIV testing."  Ruling per curiam, the court of appeal
construed this language to mean that the body fluids must have gone
from the defendant to the victim in order for the victim to be able
to compel HIV testing of the defendant.  In this case, there was no
such evidence in the trial court record. A.S.L.

Federal Court Opines That Unauthorized Disclosure of Mistaken HIV
Diagnosis May Give Rise to Tort Damages

Although ultimately dismissing the claim due to pleading
deficiencies, U.S. District Judge Greenaway (D.N.J.) opined in
__Poveromo-Spring v. Exxon Corp.__, 1997 WL 358792 (June 26), that
an unauthorized disclosure that an individual had been diagnosed
with HIV could give rise to a claim for intentional infliction of
emotional distress.  The case concerns an Exxon employee who
suffered an "unspecified brain ailment" during her 1991 summer
vacation, and then claims to have encountered problems at work,
leading to a complex lawsuit involving claims under the ADA, the NJ
Law Against Discrimination, and various supplemental torts claims. 
Pertinent here is her allegation that a named defendant, Exxon
company doctor John Sekel, "improperly conveyed her medical
diagnosis, including an incorrect HIV diagnosis, to her superiors
and co-workers."

Sorting through the claims, a magistrate judge recommended
dismissal of plaintiff's emotional distress claim.  Exxon argued
that the intentional disclosure of an incorrect AIDS diagnosis
"falls short of the kind of `extreme' and `outrageous' conduct that
must be present to support such a claim."  Judge Greenaway
disagreed, finding that AIDS "has a stigma attached to it
unparalleled by any other disease.  AIDS sufferers are often
shunned and ignored, and an intentional disclosure of such a
diagnosis, albeit an improper diagnosis, could certainly fall
within the framework of extreme and outrageous.  Unfortunately,
plaintiff does not substantiate her claim that: (1) Sekel knew of
her misdiagnosis, and (2) that if he knew, he disclosed it to
others.  Plaintiff merely states that Sekel and her personal
physician engaged in a conversation.  Without more, this claim is
insufficient. . ."  A.S.L.

Tennessee Appeals Court Says Failure to Notify Transfusion
Recipients Gives Rise to Ordinary Negligence Claim

On May 30, the Court of Appeals of Tennessee found that Vanderbilt
University Medical Center had not engaged in the practice of
medicine when, in the late 1980s, it decided against implementing
a policy to notify pre-March 1985 blood transfusion recipients that
they should be tested for exposure to HIV. __Doe v. Vanderbilt
University, Inc.__, 1997 WL 284627.  Jane Doe underwent elective
jaw surgery sometime prior to March 1985, but was not told that she
had received blood during the procedure.  In 1989, while unaware of
the facts or her condition, Jane Doe became pregnant and gave birth
to a daughter.  The daughter died shortly after birth due to
complications caused by HIV.  Shortly thereafter, Doe herself died
of AIDS.

Doe sued Vanderbilt University alleging medical malpractice based
on Vanderbilt's failure in 1987 and 1988 to individually notify
patients who had received blood transfusions prior to March 1985
that the blood they received had not been tested for HIV.  At issue
on appeal was whether Vanderbilt should have been required to
introduce expert testimony regarding the medical malpractice claim,
or whether expert testimony was not required because the claim
sounded in negligence.

In Tennessee, the distinction between ordinary negligence and
malpractice turns on whether the acts or omissions complained of
involve a matter of medical science or art requiring specialized
skills not ordinarily possessed by lay persons or whether the
conduct complained of can instead be assessed on the basis of
common everyday experience of the trier of fact.  __Peete v. Shelby
County Health Care Corp.__, 938 S.W.2d 693, 696 (Tenn. App. 1996). 
In finding that the decision not to notify patients did not sound
in medical malpractice, the court cited __Weiner v. Lenox Hill
Hosp.__, 88 N.Y.2d 784 (N.Y. 1996), which found that a hospital's
failure to adequately safeguard its blood supply from HIV is a
claim sounding in negligence for the purpose of selecting the
applicable Statute of Limitations.  Based on the decisions in
__Peete__ and in __Weiner__, the court concluded that the claim
sounded in negligence and expert testimony was not required at
trial.  

The Estate of Jane Doe was represented by Abby R. Rubenfeld, Esq.,
of Rubenfeld & Associates.  Ms. Rubenfeld is a LeGal member
practicing in Nashville, Tennessee, who is a former chair of the
ABA's Section on Individual Rights and Responsibilities and former
legal director of Lambda Legal Defense & Education Fund.  T.V.L.

NY Appellate Division Reverses Discrimination Ruling Against Dental
Practice

 The N.Y. Supreme Court Appellate Division, 2nd Department,
annulled the finding of the State Division of Human Rights that a
group of dentists had discriminated against a patient with HIV. 
__Schulman v. State Div. of Human Rights__, 1997 WL 282865 (May
27).  The complainant went to a group dental office for an
appointment and told a hygienist that he was HIV+.  A dentist
examined the patient, reviewed his x-rays and determined that a
root canal was necessary.  Although the group of dentists did
perform root canals on some patients, the dentist referred this
patient to a hospital.  

The patient was referred out, the dentists explained, because the
doctor who typically performed root canals was on vacation and
because the referring dentist believed that the hospital had
recently received a grant to provide dental care to people with
AIDS.  When the patient was unable to schedule a prompt appointment
at the hospital, he called back for additional referrals, but
apparently did not seek further treatment at the defendants'
office.  

In a rather conclusory manner, the court annulled the state
agency's determination of discrimination, essentially restating the
dentists' defense as its reasoning.  It would seem the court has
left a loophole for discriminators who do not with to treat people
with AIDS and/or HIV -- simply refer the patient out of the office
without letting on that the service the patient needs is provided
in-house.  D.W.

Texas Appeals Court Dismisses Doctor's Action Against Lab for HIV
Testing Practices

Finding that a doctor's action against a laboratory whose HIV-
testing practices resulted in the doctor being sued by a patient
was an improper attempt to seek indemnification, the Texas Court of
Appeals, 14th Dist., upheld dismissal of the doctor's case in
__Meredith v. Pathlab, Inc.__, 1997 WL 333449 (June 19) (not
officially published).  

Dr. Meredith ordered HIV testing on behalf of a patient.  Pathlab's
practice was to do an ELISA test and, if that is positive, to
perform a confirmatory Western blot test, but to report only the
ELISA test unless the doctor orders the confirmatory test.  In this
case, the patient tested positive on ELISA and negative on Western
blot; the lab reported only the positive test to the doctor, with
a recommendation that a Western blot be performed.  Dr. Meredith
communicated this information to the plaintiff, who did not request
a Western blot.  Later, the patient learned she was not HIV+ and
sued Dr. Meredith and the lab.  The trial court in that suit
dismissed all claims against Dr. Meredith, and the patient settled
with the lab.  Then Dr. Meredith filed this suit against the lab,
claiming that its practices had injured her by subjecting her to
suit by her patient.

Upholding the lab's motion to dismiss the case, the court
determined that this was really an attempt by Dr. Meredith to gain
indemnification for her litigation expenses from the lab, and that
because the lab had already settled with the patient, it was no
longer subject to any suit for indemnification arising from this
incident.  A.S.L.

Texas Appeals Court Finds Suit Against Doctor on False Diagnosis
and Disclosure to be Timely

This case is interesting mainly because of the outrageous conduct
alleged against the defendant, Dr. Robert E. Sullivan.  __King v.
Sullivan__, 1997 WL 314802 (Tex.App., 1st Dist., June 12).  

Sandy King entered a drug rehab program for which HIV testing was
required in Dec. 1990.  She tested positive via ELISA, with an
inconclusive Western blot reading. The lab told the doctor that due
to the Western blot reading, he should not tell the patient she
tested positive.  But the doctor told King on Jan. 10, 1991, that
she had AIDS and was going to die, and should tell her family about
this so they could assist her in winding up her personal affairs.
(Great bedside manner, doc!)  King asked for a confirmatory test,
but Sullivan told her that this would be extremely expensive and he
did not arrange for such tests.  He did draw blood for a second
ELISA, which also came back positive; Sullivan communicated this
result to King on Jan. 31.  

Subsequently, King went to an independent lab for a Western blot,
which came back negative.  King filed suit against Sullivan and the
hospital that ran the drug rehab program on April 8, 1993.

Sullivan sought dismissal on a statute of limitations defense.  The
Texas Medical Malpractice statute imposes a strict 2 year statute
of limitations, which can be extended by 75 days if the plaintiff
files a notice of claim with the doctor within 2 years.  The notice
letter in this case was sent Jan. 18, 1993.  Sullivan claimed that
King's claim accrued Jan. 10, 1991, so her notice letter and
subsequent filing of the lawsuit were time-barred.  King argued
that she was the victim of a continuous course of treatment by
Sullivan ending on Jan. 31, which is when her claim accrued, or, in
the alternative, that Sullivan injured her giving rise to an
independent tort claim each time he falsely told her she was HIV+. 
(There is also a claim concerning Sullivan's alleged unauthorized
disclosure of King's HIV status to others that is not involved in
this statute of limitations issue.)

The trial court accepted Sullivan's argument and dismissed the
malpractice claims against him.  Writing for the appeals court,
Justice Mirabal found that King's independent tort theory was
correct; although any claim based on the Jan. 10 notification was
time-barred, King's notice was timely with respect to the Jan. 31
incident, so that claim, essentially identical to the Jan. 10
claim, could proceed to trial.  A.S.L.

Arizona Appeals Court Find Hemophiliac's Suit Against Manufacturers
Time-Barred

The Arizona Court of Appeals ruled Feb. 18 that negligence and
product liability actions against various producers of blood
coagulants (fractionators) and healthcare providers, brought by
plaintiffs who contracted HIV from the coagulants, were time-
barred, notwithstanding plaintiffs' contention that their cause of
action did not accrue until they read and heard that "there was
reason to believe that the fractionators were negligent with regard
to transmission of HIV."  __Doe v. Miles, Inc.__, 1997 WL 279883. 


From 1978 to 1987 twins A. and B. Doe received prescribed infusions
of factor VIII concentrate to control their hemophilia.  In 1987
they tested positive for HIV, which they contracted from the
infusions.  The record shows that at that time A., and the twins'
mother Jane, believed that the source of the HIV infection was the
infusions, and they knew or could have discovered who produced and
administered the factor concentrate.  Jane had read and retained
newsletters from 1983 linking HIV to the factor concentrate.  B.
died of AIDS in 1989.  In 1992 A. Doe "saw documents" at a National
Hemophilia Foundation meeting and "heard from people that there was
reason to believe that the fractionators were negligent with regard
to transmission of HIV."  At that point A. "came to the conclusion
that...there was something wrong."  Jane (on behalf of herself and
B.'s estate) and A. filed actions against the fractionators and
healthcare providers in 1993.  They contend that their actions were
timely because they didn't realize that the defendants were
negligent or at fault until 1992.  Judge Pelander disagreed,
holding that the 2 year statute of limitations began to run in 1987
when the plaintiffs knew of the injury (HIV), knew the cause
(factor concentrate), and knew who allegedly caused the injury. 
The decision is subject to further appellate review.  M.M. 

Louisiana Appeals Court Remands AIDS Fear Case for Repleading

A 3-judge panel of the Louisiana Court of Appeal, 3rd Circuit,
holding that a plaintiff must allege that a channel to the
plaintiff for infection exists in order to sue for negligent
infliction for emotional distress arising out of a fear of HIV
transmission, remanded a complaint to allow the plaintiff to
replead sufficient facts.  __Stewart v. St. Frances Cabrini
Hospital__, 1997 WL 310358 (June 11).  

Cedric Stewart, an employee of Cabrini Hospital, was stuck by a
hypodermic needle while retrieving waste from a non-hazardous
material container.  He was immediately treated for the puncture
and prescribed AZT.  The hospital informed him that he may have
been exposed to HIV or hepatitis B and advised him to avoid
unprotected sex and open-mouth kissing with his wife.  Terry
Stewart, his wife, sued the hospital for negligent infliction of
emotional distress, alleging that no attempt had been made to
determine whether the needle had been contaminated by any
infectious disease, and that due to the hospital's negligent
actions, she has developed a fear of contracting AIDS and as a
result, is no longer able to perform her marital duties which has
led to a marital breakdown.  The trial court denied defendant's
peremptory exceptions of no cause and no right of action.  

Writing for the court, Judge Thibodeaux defined the threshold issue
as whether there is a reasonable factual basis on which Stewart can
make a negligent infliction of emotional distress claim.  To do
that, the court must examine the possibility of a channel for
infection between the needle and Mr. Stewart and from Mr. Stewart
to Ms. Stewart, as established in two leading Louisiana
transmission cases, __Vallery v. Southern Baptist Hospital__, 630
So. 2d 861 (La. App. 4 Cir. 1993), writ denied, 634 So. 2d 860, and
__Boutin v. Oakwood Village Nursing Home__, No. 96-1579 (La. App.
3 Cir. Apr. 2, 1997).  The court found two problems in arriving at
that conclusion in Stewart's case: the hospital allegedly never
made any effort to determine whether the needle was contaminated
and that no channel for infection between Mr. and Mrs. Stewart is
alleged in Ms. Stewart's petition, without which the claim is
speculative.   

"We recognize Ms. Stewart's fear of contracting [AIDS] as real and
genuine.  However, not every fear is compensable.  Although it is
possible that Mr. Stewart was exposed to [HIV] through a needle
prick, and although it is possible that Mr. Stewart exposed his
wife through a channel for infection, the allegations set forth in
Ms. Stewart's petition are insufficient to establish a cause of
action.  A channel for infection must be alleged."  The case was
remanded to the district court to allow Ms. Stewart to amend her
petition and state a cause of action consistent with __Vallery__
and __Boutin__. K.J.R.

N.Y. Appellate Divisions Reiterates 3-Year Limitation in
Transfusion Case

Ruling in __Otero v. Presbyterian Hospital in the City of New
York__, 1997 WL 340286 (June 19), the N.Y. Appellate Division, 1st
Dept., stated: "It has been consistently held that for Statute of
Limitations purposes, the transmission of the HIV virus, whether
via transfused blood or otherwise, is governed by the three-year
period set forth in CPLR 214-c(2)."  In this case, the decedent was
diagnosed as HIV+ in 1987, and sued on a negligence theory for
transmission.  Upholding dismissal of the action as time-barred in
a cryptic, incompetently written opinion that does not set out the
factual allegations or even mention when the complaint was filed,
the court also stated: "It is well settled that concealment by a
medical provider of its own purported negligence or malpractice
does not state a separate cause of action for fraud where the
alleged damages relate solely to the alleged negligence or
malpractice."  Of course, since the court refrains from describing
the claim it was dismissing any more than is suggested by the
preceding sentence, one can only speculate about the meaning of
this opinion.  One wonders why it was published at all.  A.S.L.

N.Y. Court Lets 1982 Transfusion Case Go to Trial Against Doctor
Who Ordered Transfusion

Rejecting motions to dismiss claims for HIV transmission and
administering a blood transfusion without informed consent, N.Y.
Supreme Court Justice Stanley Sklar suggested in __Coe v. Osei__,
NYLJ, 6/5/97, p.28, col.4 (N.Y. County), that a doctor who
negligently ordered a blood transfusion in October 1982 could be
liable for the resulting HIV transmission, even though the medical
community may not yet have reached a consensus then that AIDS could
be spread in that manner.

Charles Coe, plaintiffs' decedent, was born prematurely on Oct. 6,
1982, at Mercy Hospital.  Defendant Raphael Osei was the attending
physician.  Charles received four blood transfusions during his
first week of life, the second of which appears to have included
blood from a donor with AIDS.  Charles was diagnosed in 1991, and
died in 1994.  His parents sued Dr. Osei, Mercy Hospital, and the
New York Blood Center.  The latter defendants are apparently out of
the case due to prior rulings of the court.  In this opinion,
Justice Sklar addressed Dr. Osei's motion to dismiss.

In effect, Osei contends that he could not be liable for HIV
transmission because at the time he was unaware of a risk of HIV
infection.  However, Mr. Coe claims that when Osei sought consent
for the transfusion, Coe asked him about the risks of AIDS and
hepatitis, and Osei stated he could not guarantee the safety of the
transfusion, which leaves a factual dispute as to whether Osei knew
of the risk.  In any event, Coe contends Osei was negligent in
ordering the transfusion, and, under New York precedents, the
injury for which compensation is claimed need not be one reasonably
foreseeable to the defendant, provided the defendant could
reasonably foresee the possibility of some injury as a result of
his actions, and the risk of hepatitis B and other blood-borne
infections was known at the time.  __Derdiarian v. Felix
Contracting Corp.__, 51 N.Y.2d 308 (1980).  The court notes that by
the time of this incident, there were already press reports
suggesting a link between AIDS and blood transfusions.  

On the issue of consent, it appears that Mr. Coe may have declined
to consent to the second transfusion, and that Dr. Osei may have
had Mrs. Coe, then under anesthesia, aroused to secure her
authorization.  Under the circumstances, found Justice Sklar, there
are controverted issues of fact concerning the circumstances under
which consent was obtained, and whether such consent was valid.

Although several significant recent appellate decisions have found
liability where transfusions took place in 1983 (after CDC had
convened a meeting with the blood banking industry in January of
that year, at which Dr. Don Francis urged blood bankers to consider
using a hepatitis B antibody test to screen donated blood), this
case based on an Oct. 1982 transfusion may result in one of the
earliest HIV transfusion incidents to give rise to adjudicated
liability, depending how the factual issues are sorted out at trial
and whether Dr. Osei's insurance carrier prefers litigation to
settlement.  * * *  The __Derdiarian__ case, a classic torts
opinion found in some law school casebooks, also provided the basis
for a May 30 decision by the N.Y. Appellate Division, 4th Dept., in
__Doe v. Roe__, 1997 WL 287600.  Plaintiff sought compensatory and
punitive damages for violation of N.Y. Pub. Health L. sec. 2782,
which prohibits custodians of patient health records containing
HIV-related information from disclosing that information without
patient authorization (except for circumstances not relevant here). 
Plaintiff claims that defendants, a doctor and a professional
corporation, violated this section by sending medical records
disclosing plaintiff's HIV status to the attorney for plaintiff's
former employer.  The defendants argued that the claim should be
dismissed because the attorney had previously received other
records revealing plaintiff's HIV status, so their breach of the
statute was not the proximate cause of plaintiff's injury.  On this
basis, Supreme Court granted the motion to dismiss.  Reversing, the
Appellate Division noted that there was no indication on the record
that the attorney actually knew of plaintiff's HIV status when he
received the records in question, and, citing __Derdiarian__,
observed that the issue of proximate cause is "a question of fact
for trial."  A.S.L.

N.Y. Court Denies Damages for Needle-Stick Injury

A New York trial judge dismissed an action for damages for
emotional distress about fear of contracting AIDS resulting from a
needle-stick injury.  __Schott v. St. Charles Hospital__, NYLJ,
5/30/97, p.30, col.1 (Sup.Ct., Suffolk Co.).  The plaintiff had
arrived at the hospital for testing prior to surgery.  She was
instructed to change into a hospital gown. "The hospital gown
bunched up on plaintiff's hips, and, when she pulled it down, she
was stuck by a needle in the palm of her left hand.  She removed
the needle herself, and it appeared to be a metal needle with a
plastic blue end," wrote Justice Jack Cannavo.  The plaintiff was
tested for HIV antibodies immediately, then at approximately two
month intervals.  As of six months after the incident, she had
always tested negative, and there was no indication that the needle
had been used on anybody with a contagious condition. 
Nevertheless, she sued the hospital, claiming that its negligence
caused her severe emotional distress.

Under these circumstances, Justice Cannavo held that a cause of
action for emotional distress must fail under established New York
precedents, which require a showing that the plaintiff was actually
exposed to HIV before damages can be awarded for fear of
contracting AIDS.  "There is no objective proof that the plaintiff
has contracted, may contract or was even exposed to a blood-related
disease.  The claim for emotional distress is remote, speculative,
and not compensable."  A.S.L.

2nd Circuit Finds Easy Out in Prodigy Transmission Case

Barbara Haybeck sued Prodigy Service Company, the operator of the
on-line Prodigy computer service, claiming that Prodigy should be
liable under a respondeat superior theory for Haybeck's HIV-
infection, which she claims to have received from a Prodigy
employee whom she met in an on-line chat room.  District Judge
Sotomayor dismissed her complaint for failure to state a claim, and
she appealed.  In __Haybeck v. Prodigy Services Co.__, 1997 WL
338844 (June 20), the U.S. Court of Appeals dismissed Haybeck's
appeal, noting that she failed to allege that she is a citizen of
a different state from Prodigy.  "Because her claim is based on
state law and cannot support federal question jurisdiction, we have
no subject matter jurisdiction," wrote the court in its summary
order, thus avoiding having to rule on the burning question of
whether online services that provide chat rooms are liable if their
employees, misrepresenting their HIV-status, meet people and then
have sex with them, transmitting HIV.  A.S.L.

AIDS Law & Society Notes:

The MacArthur Foundation's so-called genius awards were announced
in June.  This year, AIDS treatment activist Mark Harrington was
designated as a recipient of an award to support his full-time work
with the Treatment Action Group in New York and on the national
level.  

The state of Maine passed a law in June making it legal for
residents of the state to possess up to ten hypodermic needles
without a prescription if they are obtained pursuant to a state-
authorized needle-exchange program.  According to the __Portland
Press Herald__ (June 13), the law was passed with bipartisan
support at the instigation of state public health officials, who
pointed out that 30 percent of Maine's recently reported AIDS cases
resulted from IV drug use.  H.P. 287 amends 17-A MRSA secs. 1110
and 1111.  

The San Francisco Human Rights Commission voted 5-1 on June 12 to
uphold rules regulating the city's sex clubs, under which the clubs
may not provide private rooms to patrons.  The vote was sparked by
a letter from the Commission's Lesbian, Gay, Bisexual, Transgender
Advisory Committee, which urged the Commission to find the city
health department's regulations in violation of the city's law
against sexual orientation discrimination.  The health department
defended the rules as intended to help curb the spread of HIV and
other sexually transmitted diseases.  __San Francisco Chronicle__,
__San Francisco Examiner__, June 13.

Researchers at the University of Virginia Health Sciences Center
reported the result of a study on how HIV is spread in Virginia. 
They found that the majority of Virginians whom they surveyed
(adult AIDS patients at the University's medical center between
1982 and 1993) actually lived in small towns and rural areas, and
that for most of them their risk behavior was heterosexual sex with
multiple partners.  Two-thirds of the HIV-infected study
participants reported continuing to engage in sexual activity after
learning they were HIV+, of whom 6 percent said they never use
condoms and 15 percent said they do not always use condoms.  So
much for conventional wisdom about how HIV is or is not spread in
the U.S.A. __Richmond Times-Dispatch__, July 1.

There was much angst a few years ago about whether the FDA should
license home HIV-test kits being offered by private companies.  Now
Johnson & Johnson, one of the companies whose kit has become
available at drugstores over the past year, is pulling the item
from the market, reporting that usage is so low that the whole
operation (which includes testing samples submitted by mail and
providing counseling by telephone) is not profitable.  __Washington
Blade__, July 4.  A.S.L.

PUBLICATIONS NOTED 

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Arriola, Elvia R., __Law and the Gendered Politics of Identity: Who
Owns the Label "Lesbian"?__, 8 Hastings Women's L.J. 1 (Winter
1996).

Cahn, Naomi R., __Reframing Child Custody Decisionmaking__, 58 Ohio
St. L. J. 1 (1997)(amazingly, purports to discuss the issues of
custody claims by non-biological parents without directly
addressing the case law concerning lesbian or gay co-parents, even
though citing Polikoff's seminal work on the topic).

Crone, Dan, __Assisted Suicide and the U.S. Court of Appeals for
the Ninth Circuit: A Philosophical Examination of the Majority
Opinion in__ Compassion in Dying v. Washington, 31 U.S.F. L. Rev.
399 (Winter 1997).

Frank, Barney, Bowers__ + Ten: Litigation, Legislation, and
Community Activism__, 32 Harv. Civ. Rts. - Civ. Lib. L. Rev. 265
(Summer 1997) (Rep. Frank's persuasive stump speech on how gays
should participate in the political process finely makes it into
print in a well-edited version).

Gates, E. Nathaniel, __Estranged Fruit: The Reconstruction
Amendments, Moral Slavery, and the Rearticulation of Lesbian and
Gay Identity__, 18 Cardozo L. Rev. 845 (Nov. 1996) (Comment on
Richards, see below).

Hutchinson, Darren Lenard, __Out Yet Unseen: A Racial Critique of
Gay and Lesbian Legal Theory and Political Discourse__, 29 Conn. L.
Rev. 561 (Winter 1997).

Kramer, Larry, __Same-Sex Marriages, Conflict of Laws, and the
Unconstitutional Public Policy Exception__, 106 Yale L.J. 1965 (May
1997) (no, the other Larry Kramer).

Leonard, Arthur S., __Going for the Brass Ring: The Case for Same-
Sex Marriage__, 82 Cornell L. Rev. 572 (March 1997) (Review of
Eskridge, __The Case for Same-Sex Marriage__).

Ramanathan, Erik D., __Queer Cases: A Comparative Analysis of
Global Sexual Orientation-Based Asylum Jurisprudence__, 11
Georgetown Imm. L. J. 1 (Fall 1996).

Richards, David A.J., __Abolitionist Feminism, Moral Slavery, and
the Constitution: "On the Same Platform of Human Rights"__, 18
Cardozo L. Rev. 767 (Nov. 1996) (Slavery symposium: The Slavery
Analogy in Modern Constitutional Jurisprudence).

Singh, D., __Cohabitation Relationships Revisited: Is It Not Time
for Acceptance?__, 29 Comp. & Int'l L. J. of Southern Africa 317
(Nov. 1996).

Strasser, Mark, __Judicial Good Faith and the__ Baehr__ Essentials:
On Giving Credit Where It's Due__, 28 Rutgers L.J. 313 (Winter
1997).

Ward, Cynthia, __On Difference and Equality__, 3 Legal Theory 65
(March 1997).

Wilets, James D., __Conceptualizing Private Violence Against Sexual
Minorities as Gendered Violence: An International and Comparative
Law Perspective__, 60 Albany L. Rev. 989 (1997).

__Student Notes & Comments:__ 

Almeida, Alicia Christina, Thomasson v. Perry__: Has the Fourth
Circuit Taken "Don't Ask, Don't Tell" Too Literally?__, 75 N. C. L.
Rev. 967 (March 1997).

Baroutjian, Raffi S., __The Advent of the Multifactor, Sliding-
Scale Standard of Equal Protection Review: Out with the Traditional
Three-Tier Method of Analysis, in with__ Romer v. Evans, 30 Loyola
of L.A. L. Rev. 1277 (April 1997).

Gross, Kara L., __Toward Gender Equality and Understanding:
Recognizing That Same-Sex Sexual Harassment Is Sex
Discrimination__, 62 Brooklyn L. Rev. 1165 (1996).

Gunsburg, Samuel A., __Frozen Life's Dominion: Extending
Reproductive Autonomy Rights to In Vitro Fertilization__, 65
Fordham L. Rev. 2205 (April 1997).

Harris, Cathy A., __Outing Privacy Litigation: Toward a Contextual
Strategy for Lesbian and Gay Rights__, 65 Geo. Wash. L. Rev. 248
(Jan. 1997).

Henigan, Patrick, __Is Parental Authority Absolute? Public High
Schools Which Provide Gay and Lesbian Youth Services Do Not Violate
the Constitutional Childrearing Right of Parents__, 62 Brooklyn L.
Rev. 1261 (1996).

Kimball, Andrea A., Romer v. Evans__ and Colorado's Amendment 2:
The Gay Movement's Symbolic Victory in the Battle for Civil
Rights__, 28 U. Toledo L. Rev. 219 (Fall 1996).

Note, __Virtual Community Standards: Should Obscenity Law Recognize
the Contemporary Community Standard of Cyberspace?__, 30 Suffolk U.
L. Rev. 117 (1996).

Rogers, Jerald W., Romer v. Evans__: Heightened Scrutiny Has Found
a Rational Basis -- Is the Court Tacitly Recognizing Quasi-Suspect
Status for Gays, Lesbians, and Bisexuals?__, 45 U. Kans. L. Rev.
953 (May 1997).

Rutherford, Elizebeth A., __Employee Benefits -- Domestic Partner
Benefits: Are You Doing It Right?__, 23 Emp. Rel. L. J. 125 (Summer
1997).

Shafiqullah, Hasan, __Shape-Shifters, Masqueraders, & Subversives:
An Argument for the Liberation of Transgendered Individuals__, 8
Hastings Women's L.J. 195 (Winter 1996).

Tobisman, Cindy, __Marriage vs. Domestic Partnership: Will We Ever
Protect Lesbians' Families?__, 12 Berkeley Women's L. J. 112
(1997).

__Specially Noted:__

The May 1997 issue of __Maine Bar Journal__ contains two articles
of particular interest to __Law Notes__ readers: Pamela Knowles
Lawrason, __Sexual Orientation Discrimination in the Legal
Profession: Is Maine Any Different?__, and Patricia A. Peard,
__Domestic Partnership Benefits: Equal Pay for Equal Work__.  The
Lawrason article prominently cites and quotes from several studies
of sexual orientation discrimination in the legal profession
previously published by other bar associations.

AIDS & RELATED LEGAL ISSUES: 

Gibeaut, John, __Filling A Need__, ABA J., July 1997, 48-54
("Lawyers are drilling home the point that dentists who won't treat
HIV patients may be practicing the most pervasive discrimination of
all.")

Hoekstra, David John, __"Regarded As" Disabilities Under the ADA__,
48 Labor L. J. 293 (May 1997).

Schilling, Robert F., Andrew Ivanoff, Nabila El-Bassel & Fred
Soffa, __HIV-Related Behaviors in Transitional Correctional
Settings__, 24 Crim. J. & Behavior 256 (June 1997).

Trebilcock, Michael, Robert Howse & Ron Daniels, __Do Institutions
Matter? A Comparative Pathology of the HIV-Infected Blood
Tragedy__, 82 Va. L. Rev. 1407 (Nov. 1996) (accompanied with
Commentaries by Sherry Glied and Julie Roin).

Winterbauer, Steven H., __The Direct Threat Defense: Striking a
Balance Between the Duties to Accommodate and To Provide a Safe
Workplace__, 23 Emp. Rel. L. J. 5 (Summer 1997).

__Student Notes & Comments:__

Flowers, Mona L., __Viatical Settlements: A Healthy Alternative for
the Terminally Ill__, 21 L. & Psychology Rev. 181 (Spring 1997).

Gavilan, David, __Que Paso? ("And Then What Happened?"): The Plight
of Cuban Detainees at Guantanamo Bay__, 4 Cardozo J. Int'l & Comp.
L. 451 (Summer 1996).

Halem, Samantha Catherine, __At What Cost?: An Argument Against
Mandatory AZT Treatment of HIV-Positive Pregnant Women__, 32 Harv.
Civ. Rts. - Civ. Lib. L. Rev. 491 (Summer 1997).

Recent Decision, __Civil Rights - Reexamining the "Significant
Risk" Standard Under the Rehabilitation Act and the Americans With
Disabilities Act Within the Context of HIV and AIDS - __Doe v.
University of Maryland Medical System Corp., 50 F.3d 1261 (4th Cir.
1995), 69 Temple L. Rev. 1571 (Winter 1996).

EDITOR'S NOTE
A reader informs us that we reversed the order of founding of
California's two major lesbian and gay lawyer organizations in the
May __Law Notes__.  Lawyers for Human Rights in Los Angeles began
in 1979, and Bay Area Lawyers for Individual Freedom in San
Francisco began in 1980. * * * 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.