LESBIAN/GAY LAW NOTES
ISSN 8755-9021     September 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: Otis R. Damslet, Esq., New York; Steven
Kolodny, Esq., New York; Mark Major, Esq., New York; Seth M.
Rosen, NY Law School Student; K. Jacob Ruppert, Esq., New York;
Daniel R Schaffer, New York; Paul Twarog, 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

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(C) 1997 by Lesbian & Gay Law Association of Greater New York     
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4th Circuit Guts Statutory Protection for "Asymptomatic" People
With HIV

In an en banc ruling announced Aug. 15, the U.S. Court of Appeals
for the 4th Circuit upheld a grant of summary judgment against an
HIV+ gay man in an employment discrimination case, finding he was
not a person "with a disability" under the Americans With
Disabilities Act and that he failed to allege a prima facie case
of discrimination.  _Runnebaum v. Nationsbank of Maryland_, 1997 WL
465301.  In an opinion for 6 members of the court, Judge Karen J.
Williams effectively held that asymptomatic HIV infection is not a
disability within the meaning of the Act.  Five members of the
court dissented in an opinion by Judge Michael, arguing that HIV+
people are clearly covered by the statute.  Judge Hamilton
concurred in the result, but agreed with the dissenters that the
majority should not have reached the issue of whether
asymptomatic HIV+ people have a statutory "disability." 

Nationsbank hired William Runnebaum, an openly gay man, in May
1991.  After a year working in the private banking department in
Baltimore, he applied to transfer to a sales position in the
trust department.  His transfer was granted and he began working
under the supervision of Ann Petit in July 1992.  Pettit
discharged Runnebaum at a meeting in her office in January 1993. 
These are the uncontested facts in the case. 

Everything else was contested.  Nationsbank claimed Runnebaum did
not perform up to standard in any of his jobs, failed to fulfill
initial goals established for his sales position, and did not
behave appropriately during client sales calls.  (Runnebaum
testified in his deposition that Pettit counseled him about
appropriate behavior at client meetings.)  Nationsbank also
claimed Pettit made the decision to fire him early in November
1992, before she knew he was HIV+, but decided to give him an
additional opportunity to "redeem" himself, so did not discharge
him immediately.  Nationsbank noted that Runnebaum never indicated
that he had any disability, and asserted that his HIV status was
not the basis for his discharge.  

Runnebaum presented evidence that he was doing as well as or better
than another sales person, Andersson, who was not discharged, and
that he had received affirmative notes and comments from Pettit
about his work.  During November 1992, Pettit assigned him to plan
and execute the department's largest annual event, a holiday sales
party for clients and staff, which was held successfully. 
(Runnebaum attended the event with his "boyfriend.")  Runnebaum
knew he was HIV+ long before he applied for the job, but suffered
no disabling physical symptoms and did not disclose his HIV status
to anybody at Nationsbank until September 1992, when he told
Michael Brown, a gay man who is the Senior Managing Officer of
Nationsbank's Baltimore office.  He told Brown during a social
occasion at a gay bar.  Brown informed Pettit about Runnebaum's
HIV-status in late November or December 1992.

After receiving a right-to-sue letter from the EEOC based on his
complaint of violation of Title I of the ADA, Runnebaum filed a
federal action which also raised a claim under ERISA.  (The ERISA
claim alleged that he was discharged to prevent him from receiving
benefits associated with his HIV-status, specifically AZT, which he
had begun receiving under Nationsbank's health plan.)  On motion by
Nationsbank, the district court granted summary judgment against
Runnebaum on both statutory claims.  Taking as uncontested that an
asymptomatic HIV+ person has a disability within the meaning of the
ADA, the district court found that Runnebaum failed to make out a
prima facie case that he was fired because of his disability, and
that dismissal of the ERISA claim logically followed.  A 3-judge
panel of the 4th Circuit reversed, 2-1, but the Circuit voted to
grant en banc review.

The opinion for the court by Judge Williams violates most of the
precepts governing the role of an appellate court in passing on a
summary judgment motion.  The court actively draws factual
inferences against the party opposing summary judgment, ignores
significant conflicts over material facts, and reaches out to
decide issues that were not briefed or properly before it.  In
this case, the trial judge treated as uncontested that Runnebaum
was a person with a disability, and ruled against him based on
other requirements of the prima facie case.  Most centrally, the
trial judge decided, based on the pre-trial record, that Runnebaum
failed to satisfy the requirement of showing that he was performing
up to the legitimate expectations of the employer.  Apparently, as
exhaustively documented by Judge Michael in his dissent, the
parties conducted discovery and litigated the summary judgment
motion with the understanding that Runnebaum's status as a person
with a disability was not being contested.

The court's approach of determining whether Runnebaum is a member
of the class of persons protected by the ADA also violates the
precept that civil rights statutes are remedial statutes, to be
construed broadly to effectuate the legislative purpose of
combating unjustified discrimination.  Instead, the court adopts
a formalistic approach, eschewing reference to legislative history
and focusing on dictionary definitions of statutory terms to adopt
a literalistic interpretation of the statute.

To state a prima facie case, an ADA plaintiff must allege that he
is a "qualified individual with a disability."  A disability may
be "(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having
such an impairment."  During the legislative process, relevant
committees in both the House and the Senate included in their
formal written reports their understanding that HIV-infection was
such an "impairment" and that its impact on reproductive and
sexual activity would qualify as substantially limiting major life
activities.  President George Bush specifically called for
protection of people with HIV and AIDS from discrimination by
urging passage of the ADA, which he subsequently signed. 
Congressional proponents of the legislation made statements
during floor debate asserting that people with HIV infection,
regardless of whether symptomatic or asymptomatic, would be
protected by the ADA.

The court found that Runnebaum's coverage by the ADA would have
to come under the first or third prongs of the definition. 
Addressing the first prong, the court opined that asymptomatic
HIV-infection is not an "impairment."  The term "impairment" is not
defined in the statute.  After reciting dictionary definitions
(e.g., "make worse by or as if by diminishing in some material
respect" - Webster's 9th New Collegiate Dictionary), Williams
asserted: "Under these definitions, asymptomatic HIV infection is
simply not an impairment; without symptoms, there are no
diminishing effects on the individual."  In a footnote, the court
dispensed with testimony about how HIV actually begins battling the
immune system from the earliest stages of infection.  The court
found this essentially irrelevant to the issue of impairment,
insisting that until HIV infection manifests itself in disabling
physical symptoms, the statutory requirement has not been met.

Williams rejected the contention that the impact of HIV infection
on reproductive or sexual activity constitutes a substantial
limitation on a major life activity.  While conceding that the
Supreme Court has treated reproductive rights as "fundamental" for
Due Process protection, the court was unwilling to treat the
exercise of every fundamental right as a "major life activity." 
(In a footnote, Williams noted that the Constitution protects the
"right to bear arms" but suggested that bearing arms was not a
major life activity.  Tell that to the Marines!)  Williams argued
that HIV+ people _can_ engage in reproductive and other sexual
activity, drawing a distinction between impairments that prevent
one from engaging in an activity as opposed to impairments that
make the activity dangerous.  

Williams asserted that the statutory language was so clear and
unambiguous that resort to legislative history would not be
appropriate.  And, in a personal dig against the plaintiff in
this case, a gay man, Williams noted there was nothing in the
record indicating any interest by Runnebaum in "fathering a child." 
As to the impact of HIV on Runnebaum's sex life, said Williams:
"Moreover, the record makes clear that Runnebaum's ability to
engage in intimate sexual relations was not substantially limited
by his HIV infection; the record shows that he concealed his HIV
infection from his lover.  Ergo, Runnebaum's HIV infection, if an
impairment, does not substantially limit one or more of the major
life activities. . ."  This, of course, conveniently overlooked two
significant factors: (1) Discovery and litigation of the summary
judgment motion were carried out with the understanding that
Runnebaum's status as a member of the protected class was not a
contested issue; and (2) Runnebaum never had an opportunity to
present evidence at trial on these issues, should they be judged
relevant.  

Having concluded that an asymptomatic HIV+ person is not
disabled, Williams turned to the alternative third prong of the
definition, protecting persons who are "perceived" as having "such
an impairment."  To Williams, this language means that a person is
protected if he can credibly allege that the employer
discriminated against him because of the employer's perception that
he had a disabling impairment.  Unlike the first prong, this was
held to incorporate a subjective component, the employer's
motivation for the discharge.  Apparently accepting as true
Pettit's deposition testimony that she decided to discharge
Runnebaum early in November 1992, before she knew that he was HIV+,
and commenting that Runnebaum had presented no other factual
allegations tending to show unlawful motivation, Williams found no
prima facie case under this prong.  As the dissent pointed out,
this conveniently overlooked the significant period between
November 2 and the actual discharge, as well as Brown's deposition
testimony about his reaction to learning that Runnebaum was HIV+. 
(Brown testified about the fears and confusions this information
stimulated in him, including doubts about Runnebaum's ability to
continue working in the long run.)  

Finally moving to an issue that was properly before it, the court
agreed with the district court that Runnebaum failed to satisfy
the prima facie case requirement that he was meeting his employer's
legitimate expectations.  Williams gave full credit to
Nationsbank's evidence that Runnebaum fell short of the goals
articulated for his sales position, as well as the other criticisms
of his work, and failed even to mention much of the evidence that
Runnebaum had managed to get into the pre-trial record through
depositions, such as the comparison between his performance and
that of another sales person who was not discharged.  Finally,
looking to the last element of the prima facie case, the court
found that Runnebaum failed to show that his discharge occurred
under circumstances under which an inference of discrimination
could be raised.

Williams asserted that summary judgement on the ERISA claim
logically followed on the ADA claim, asserting without
explanation or analysis that failure to meet the prima facie case
requirement under the ADA signalled a similar failure under ERISA.

Judge Michael's dissent, on behalf of himself and four other
members of the court, was detailed and outspoken.  Michael
pointed out that Runnebaum's status as a person with a disability
was not contested below and thus not properly before the court for
decision.  "I believe the majority means to create a per se  rule
excluding those with asymptomatic HIV from the protections of the
ADA.  It essentially admits as much," Michael observed, "noting
that its definition of disability `suggests that asymptomatic HIV
infection will never qualify' as a disability."  Michael argued
that the decision "moves this circuit even further from the
mainstream of ADA interpretation.  More importantly, it moves us
completely away from the interpretation that Congress clearly
intended."  

Michael highlighted the clash between the court's approach and
the explicit mention of HIV-infection being covered, in committee
reports, President Bush's speech, and floor statements by members
of Congress.  He also noted the direct contradiction of the 1st
Circuit's recent decision in _Abbott v. Bragdon_, 107 F.3d 934
(1997).  Michael also disagreed with the court's disposition of
the other legal issues in the case, arguing, with detailed examples
from the record, that on virtually every point there were relevant
contested facts as to which a trial was necessary for appropriate
resolution of the legal claims.  

Because only half of the judges on the en banc panel agreed with
the opinion for the court on the issue of ADA coverage of
asymptomatic HIV-infected persons, the precedential weight of the
opinion is open to dispute.  If it is seen as a majority holding
on
behalf of the circuit on that question, it creates a direct split
in circuit authority between this decision and the 1st Circuit's
_Abbott_ decision, which would make the issue of whether
asymptomatic HIV+ persons are members of the ADA protected class
ripe for Supreme Court review, provided a timely certiorari
petition is filed by Runnebaum.  This decision illustrates a
trend among the more conservative federal courts in narrowing
access to ADA protection on several related grounds, but all based
on a formalistic, literalistic interpretation of statutory language
while eschewing legislative history.   

Interestingly, all members of the court appointed by Democratic
Presidents Carter and Clinton dissented.  The majority was made up
of judges appointed by Republican Presidents Ronald Reagan, George
Bush and Richard Nixon.  In addition, dissenting Judge Hall was
appointed by Republican President Gerald Ford.  Judge Hamilton, who
concurred in affirming the district court's grant of summary
judgement solely on its own grounds, was appointed by President
Bush.  

The result in this and other cases may suggests need to seek more
directly explicit protection for people with HIV/AIDS under federal
law, rather than continuing to rely on the generic protection of
disability discrimination law.  A.S.L.

LESBIAN/GAY LEGAL NEWS 

11th Circuit Refuses to Reconsider Shahar Case

On Aug. 1, ten judges of the U.S. Court of Appeals for the 11th
Circuit, joined by two senior judges who had sat on the original
3-judge panel, voted 9-3 against rehearing Robin Shahar's appeal in
her lawsuit against former Georgia Attorney General Michael Bowers. 
_Shahar v. Bowers_, 1997 WL 430823, denying rehearing of 114 F.3d
1097 (May 30, 1997).  

Shahar, a lesbian and a top law student at Emory University in
Atlanta, had accepted a job offer from Bowers to work in the
Georgia Law Department after graduation.  When Bowers subsequently
learned that Shahar was planning a same-sex marriage ceremony with
her female life partner, he "rescinded" the job offer.  Shahar, now
a lawyer for the city of Atlanta, sued Bowers in federal court,
claiming a violation of her rights of equal protection, freedom of
association, and free exercise of religion.  In its en banc
decision issued on May 30, 1997, the 11th Circuit ruled that, even
assuming that Shahar had a right of intimate association that was
burdened by Bowers's action, he was justified as the chief law
enforcement officer of Georgia, where "sodomy" is a felony offense,
to refuse to employ an attorney who was engaging in a same-sex
marriage.  

The court, over vigorous dissents, accepted Bowers's argument that
employment of Shahar under the circumstances would undermine the
credibility of his office, and its dedication to majority moral
values.  Just days after the court issued its decision, Bowers, who
had retired to run for Governor of Georgia, disclosed that he had
conducted an adulterous affair with a female employee of his office
over a period of ten years (including some of the time covered by
the incidents in the Shahar lawsuit).  Bowers told reporters that
his position on the _Shahar_ case was hypocritical, but he still
thought he had made the correct decision to discharge her.

Shahar's attorneys from the ACLU and Lambda Legal Defense Fund then
moved the court to reopen the case for further argument in light of
Bowers's personal revelations, arguing that his own conduct was
inconsistent with the justifications he advanced in defending
against Shahar's constitutional claims.  The court was not
persuaded.  

In a per curiam memorandum, the court claimed that Shahar had the
opportunity during pre-trial discovery to inquire about whether any
employees of the Law Department "including the Attorney General"
had committed adultery.  Rather than pursuing such a line of
inquiry, the parties agreed that both sides would refrain from
conducting discovery about "the sexual histories of the specific
people involved in this litigation."  (What the court avoids saying
directly, of course, is that in a state with a felony sodomy law
carrying a prison term of up to 20 years, it was only prudent for
Shahar to agree that she would not conduct discovery into the
sexual activities of Law Department members in exchange for an
agreement that they would not seek to use the compulsory process of
discovery to probe her sexual relationship with her partner.)  

The court commented that since Bowers's adultery would have been
discoverable, it could not now be used as a basis to reopen the
case.  "Because Ms. Shahar did not diligently seek out this
information when the information could have been regularly
considered by the district court and then by the court of appeals,
no strong equities favor her request that we take the extraordinary
step of supplementing the record at this late moment."

The court added a statement about how it would not be proper for it
to take "judicial notice" of Bowers's confession of adultery.  "She
has shown us no case -- and we have found none -- where a federal
court of appeals took judicial notice of the unofficial conduct of
one person based upon newspaper accounts (or the person's campaign
committee's press release) about that conduct."  The court
concluded its per curiam statement by commenting, without any
further explanation, that "we cannot readily say that the result of
the case probably would be different from the 30 May result."

Judges Birch, Barkett and Godbold, all dissenters from the May 30
decision, also dissented from the decision to deny Shahar's motion.
"The majority contends that the equities are against Shahar to
supplement the record at this late stage because she failed to
discover the information about Bowers' affair in the district
court.  We submit that the majority should have, in balancing the
equities, also considered the fact that Bowers waited until a few
days after its decision issued before he made the information
public.  This timing, to say the least, is suspicious; especially
considering that, despite his discovery agreement with Shahar,
Bowers was able to argue in court `issues of public perception and
of appearances on the matter of sodomy and [] married []
homosexuals in general.'  Not only was Bowers able to argue that
point, but he also was able to argue that Shahar could not function
as a trustworthy member of his staff because she likely had a
conflict of interest with respect to Georgia's sodomy law. 
Considering that Bowers admits that, perhaps at the very time he
fired Shahar, he also was breaking Georgia's adultery and
fornication laws, his justification is entitled to no weight.  At
the very least, Bowers' justification evinces discrimination
against Shahar solely on the basis of her status as a homosexual,
since Bowers did not make the same assumption about conflict of
interest with respect to himself or other lawyers in his
department."

The dissenters also contended that judicial notice would be
entirely appropriate, since it would be based not on
interpretations by journalists, but by Bowers' own public
statements, and that since the time had not run to petition for
rehearing, the request to supplement the record was timely.  A.S.L.

7th Circuit Strongly Upholds Same-Sex Harassment Claim 

In a brilliant opinion by Circuit Judge Ilana Diamond Rovner, the
U.S. Court of Appeals for the 7th Circuit ruled that same-sex
harassment is actionable under Title VII of the Civil Rights Act of
1964, even where the perpetrators are heterosexual.  _Doe v. City
of Belleville_, 1997 WL 400219 (July 17). 

Twin teenage brothers, J. and H. Doe (pseudonyms), were hired by
the City of Belleville in 1992 to work in the municipal cemetery. 
From the first, they suffered "a relentless campaign of harassment
by their male co-workers."  J, who apparently was overweight, was
ridiculed as "fat boy," while H., who wore an earring but was not
gay, was constantly referred to as "fag," "queer," or "bitch." 
Co-worker Jeff Dawe, a heterosexual former Marine of "imposing
stature," repeatedly questioned H. as to whether he was a boy or
girl, threatened to sexually assault him, and on one occasion
backed him up to a wall and grabbed him by the testicles ostensibly
to determine whether H. was male or female, announcing "I guess
he's a guy."  Co-workers encouraged Dawe and joked that J. and H.
were lovers.  The brothers did not report the harassment, but
decided to quit their jobs on two weeks' notice.  Fearing
reprisals, J and H told co-workers that their reason for quitting
was that their father was sending them to Oklahoma.  However they
confided in one city employee that they were really quitting
because of the harassment, and when their co-workers discovered
this deception the harassment escalated - culminating in a
firecracker being exploded near H. 

After filing charges with the EEOC and obtaining right-to-sue
letters, the Does sued Belleville claiming sexual harassment and
retaliation in violation of Title VII.  Because Belleville is a
government employer, the Does also claimed the harassment denied
them the equal protection of the laws in violation of the
Fourteenth Amendment. 

The district court granted summary judgment in favor of the city,
reasoning that since the plaintiffs worked in an all-male
environment they were not discriminated against because they were
male, but rather because they were perceived as gay.  See _Ulane v.
Eastern Airlines, Inc._, 742 F.2d 1081 (7th Cir. 1984) ("Congress
manifested an intention to exclude homosexuals from Title VII
coverage.").

Reversing, the circuit court ruled that sexual harassment is
actionable even when the perpetrators and the victims are both
heterosexual and of the same sex.  Judge Rovner catalogued the
verbal and physical abuse and wrote, "If H. were a woman, no
court would have any difficulty construing such abusive conduct as
sexual harassment."  Rovner observed: "Title VII on its face draws
no distinction between men and women, either as plaintiffs or
harassers, and the EEOC describes sexual harassment in
gender-neutral terms," referring to EEOC guidelines on sexual
harassment claims.

The majority conceded that, in the all-male work environment, H
had been singled out not for being male but rather for failing to
conform to his co-workers' expectation of masculine attire -
specifically for wearing an earring.  Citing _Price Waterhouse v.
Hopkins_, 490 U.S. 228 (1989), however, Rovner wrote that it was
enough that H had been singled out for abuse because he failed to
conform to the gender stereotypes of his co-workers, and that he
had necessarily experienced the resultant harassment
(particularly the physical assault) "as a male."

Rejecting the minority rule that holds a man harassed by another
man has no claim under Title VII (see _Oncale v. Sundowner
Offshore Servs., Inc._, 83 F.3d 118 (5th Cir. 1996), cert. granted,
65 U.S.L.W. 3809, 1997 WL 605211 (U.S., June 9) (opining that
Congress intended Title VII to prevent one gender from 
discriminating against the other)), Rovner wrote that Congress "had
very little preconceived notion what types of sex discrimination
they were dealing with when they enacted Title VII."  She commented
that "sex was added to the list of prohibited grounds of
discrimination by a congressional opponent at the last minute in
the hopes that it would dissuade his colleagues from approving the
bill; it did not." 

Rovner concluded that the plain language of the statute must govern
rather than subsequent unfounded speculation about original intent.

Rovner also refuted the line of cases holding that a same-sex
harassment plaintiff must prove that the perpetrator was
homosexual.  Compare _McWilliams v. Fairfax County Board of
Supervisors_, 72 F.3d 1191 (4th Cir. 1996), cert. denied, 117 S.
Ct. 72 (1996) (same-sex harassment not actionable where the
perpetrator is not homosexual) and _Wrightson V. Pizza Hut of
America, Inc._, 99 F.3d 138 (4th Cir. 1996) (same-sex harassment
actionable where the perpetrator is homosexual).  Rovner opined
that "Title VII does not require that sexual harassment be
motivated by attraction, only that it be `because of sex';
indeed, harassment, like other forms of victimization, is often
motivated by issues of power and control on the part of the
harasser, issues not necessarily related to sexual preference." 
Describing some of the abusive opposite-sex harassment cases on
record, Rovner asked hypothetically whether an employer could avoid
liability by proving that the harasser is gay.  Rovner concluded,
"We need not immerse ourselves in this quagmire.  We have never for
a moment, in cases where men have harassed women, entertained the
notion that it would be a defense to the claim of sexual harassment
to show that the harassers were gay, or at least that they were not
sexually attracted to the plaintiff."

Observing that the harassment in this case was inherently sexual,
necessarily implicating the plaintiffs' gender, Rovner concluded
that the brothers were entitled to a trial, because they had
produced "more than enough evidence to permit the factfinder to
conclude that each of the brothers had subjectively experienced
his workplace as hostile.  They adequately detailed the incidents
of harassment, it is clear that they experienced them as
harassment, and the harassment had a significant impact upon them. 
They need show no more."  The constitutional equal protection
claim, based on a theory of sex discrimination, was also remanded
for trial under the same reasoning.

The majority affirmed summary judgment on the retaliation claim,
however, because the Does had not produced evidence that the
abuse was motivated by pursuing a claim of sexual harassment.  

Judge Manion wrote separately, concurring in the majority's
holding that same-sex harassment can be actionable under Title VII,
but dissenting from the finding that the Does had stated a claim. 
Manion opined that the Does would have had to prove that they were
harassed specifically because they were male.  Surprisingly, Manion
did not address _Price Waterhouse_.

Depending on how the Supreme Court rules in _Oncale_, this opinion
may have profound significance.  It argues persuasively that
same-sex harassment is actionable under Title VII regardless of the
sexual orientation of the harasser - thus relieving plaintiffs of
the need to prove their harassers are gay, and imposing the same
standard of conduct on supervisors and co-workers regardless of
their sexual orientation.  Conceptually, the opinion shifts the
focus of inquiry away from the motive of the harasser (physical
attraction, enforcement of stereotypes, abuse of power), and
towards the experience of the victim, emphasizing that the
harassment is actionable if it necessarily implicates the
plaintiff's sex, i.e. the plaintiff necessarily experiences it
particularly as a male or female.  Also, the opinion is in
considerable tension with _Ulane_, which imposed narrow coverage on
Title VII based on presumed congressional intent to exclude
homosexuals and transsexuals; the opinion specifically rejects
imputing congressional intent, and upholds a right of action where
the plaintiffs are made to suffer because they do not conform to
gender stereotypes.  Given that harassment based on sexual
orientation almost always involves conduct similar to that alleged
in this case, and at least arguably is motivated by failure to
conform to gender stereotypes, the opinion may open a window for
plaintiffs harassed on the basis of their sexual orientation to
claim a violation of Title VII.  O.R.D.

7th Circuit Defers Ruling on University of Wisconsin Fee Dispute

A panel of the U.S. Court of Appeals for the 7th Circuit decided
July 11 that it lacked jurisdiction to rule on the merits of a
dispute concerning student activity fees at the University of
Wisconsin.  _Southworth v. Grebe_, 1997 WL 411225 (unpublished
disposition).  Three conservative students who objected to their
activity fees going to fund the lesbian and gay student group and
an environmental rights group had filed suit in the U.S. District
Court in Madison, where Chief Judge John C. Shabaz ruled in their
favor on a motion for summary judgment for declaratory relief
under the 1st Amendment, but did not issue an injunction, instead
urging the parties to work out a fee system that would meet the
requirements of his constitutional ruling.  The University
appealed.  The court of appeals, in a per curiam order, found
that it lacked jurisdiction because Judge Shabaz had not issued a
final ruling on the plaintiffs' request for injunctive relief, and
had not disposed formally of a variety of pendent state law claims
that the plaintiffs had asserted in their complaint but did not
include in their motion for summary judgment.  

The court dismissed the appeal for lack of jurisdiction, and told
the parties to go back to the district court for a ruling on the
request for an injunction and a formal disposition of the
remaining claims.  Assuming the parties would then bring a new
appeal, the court instructed them to limit their briefing to the
district court's decision concerning injunctive relief and the
remaining counts, since the parties had extensively brief the
merits already.

On July 24, Judge Shabaz issued his new ruling, ordering the
University to publish a list each year of student activities that
can and cannot be supported by mandatory student fees, and to
allow objecting students to withhold the portion of their fees that
would go to "political or ideological activities" with which they
disagree.  The order stated that mandatory student fees could be
used "only for activities reasonably intended to promote [the
university's] educational mission by providing opportunities (and
forums) for the free expression of diverse viewpoints."  The
court also ordered the university to establish an arbitration
procedure for students who disagree with the list of groups and
want to withhold funds from groups on the approved list.  Now that
Shabaz has ruled, the university can appeal back to the 7th
Circuit.  _Capital Times_ (Madison, Wisconsin), July 25.  A.S.L.

2nd Circuit Upholds Finding of Civil Rights Violation by Prison
Official Who Raped Gay Male Prisoner, But Reduces Punitive
Damages 

A panel of the U.S. Court of Appeals for the 2nd Circuit upheld a
bench verdict for violation of federally protected civil rights
against a prison official who raped a gay male prisoner, but
substantially reduced the amount of punitive damages that had
been awarded by the district court.  _Mathie v. Fries_, 1997 WL
426567 (July 31).

Maurice Mathie, a gay man, was arrested in August 1989 for his
role in the strangulation death of a man on Long Island.  He was
held as a pretrial detainee in the Suffolk County Correctional
Facility, where Roy Fries was employed as the sergeant in charge of
internal security.  Fries was the person to whom a prisoner would
apply for change of housing.  Mathie requested a transfer to a
different area in the facility because somebody in his area was
threatening him. When Mathie met Fries in Fries's office to present
his request, Fries detained him for a lengthy meeting during which
Fries interrogated Mathies in depth about his sexuality.  This led
to a series of meetings in his office initiated by Fries, in which
he gradually initiated more intimate physical contact.  According
to Mathie's account of the last such meeting, Fries grabbed him
from behind, handcuffed him to some pipes, pulled down his pants,
and "anally penetrated" him.  Mathie claimed he had never
previously taken the passive role in anal sex and did not
participate in this voluntarily.  He also claimed that he suffered
physical trauma and extended mental trauma as a result of the
incident.  Mathie subsequently pled guilty to manslaughter and is
currently serving consecutive sentences totalling 10 to 30 years.

Mathie sued Fries under 42 U.S.C. sec. 1983, alleging a violation
of his civil rights.  Fries denied that any sexual encounters had
taken place, and sought to persuade the court that he was being
framed by Mathie.  However, at the conclusion of a bench trial,
District Judge Arthur D. Spatt (E.D.N.Y.) found Mathie more
credible than Fries (who is now retired), and rendered a verdict
in favor of Mathie, awarding $250,000 in compensatory damages and
$500,000 in punitive damages.  (Under an indemnification agreement,
Suffolk County will be paying whatever damages are awarded against
Fries.)

Writing for the court on appeal, Chief Judge Jon O. Newman found
that Judge Spatt's rulings on the merits of the case were not
clearly erroneous, and upheld both the substantive verdict and
the award of compensatory damages.  The compensatory damages issue
was complicated by the claim for emotional distress.  Expert
witnesses for both parties indicated that Mathie was already
suffering emotional distress from his participation in the murder,
incarceration, and possibly lengthy prison term upon conviction;
Fries sought to emphasize these factors as the main source of the
symptoms on which the emotional stress claim was based.  Judge
Spatt indicated in his ruling that he had taken into account the
multiple sources of emotional distress in attempting to assign a
value to emotional distress attributable to Fries's misconduct. 
Newman sympathized with the trial judge's difficulties in
allocating damages on this issue: "Indeed, the entire allocation
problem, if susceptible to any precise resolution, appears to
involve an analysis of psychological effects beyond what can
reasonably be expected of a trial judge, who cannot be obliged to
turn one lawsuit into a graduate seminar in forensic psychiatry."

Ultimately, Spatt's express recognition of the difficulties and
earnest attempt to make a reasonable allocation persuaded the
court to sustain his compensatory damage award as not clearly
erroneous.  The punitive damage award was found even more
troublesome by the court.  Although the amount of $500,000 appeared
within the scope of punitive damages according to guidelines
derived from the Supreme Court's recent decision in _BMW of North
America, Inc. v. Gore_, 116 S.Ct. 1589 (1996), Newman found the
amount excessive when compared to damage awards in other cases
involving "sexual assaults by private individuals and assaultive
and other misconduct by law enforcement officers."  The court
concluded that under the circumstances of this case, punitive
damages should not exceed $200,000.  A.S.L.

U.S. District Court in Arizona Refuses to Dismiss Same-Sex
Harassment Claim Under State Law

Ruling on a motion to dismiss in a diversity case, the U.S.
District Court for the District of Arizona held that the Arizona
Civil Rights Act extends to claims of both hostile environment
and quid pro quo same-sex harassment.  _Storey v. Chase Bankcard
Services, Inc._, 1997 WL 414730 (July 21).  The plaintiff claimed
that she was sexually propositioned by her female supervisor and,
when she refused her advances, was denied promotion and suspended
for three days.  She also alleged that several other female
employees suffered similar harassment, and that the employer
failed to take steps to discipline the supervisor.

The defendant employer moved to dismiss, asserting that the state
law ban against sex discrimination did not extend to such a
claim.  District Judge Silver found that Arizona courts have
generally followed federal precedents under Title VII of the Civil
Rights Act of 1964 in construing their state law.   Reviewing the
now-voluminous case law under Title VII regarding same-sex
harassment, Silver found that the overwhelming majority view would
support a cause of action in this case, noting that only the 5th
Circuit, at the appellate level, had categorically ruled out
same-sex harassment claims.  Silver found that arguments advanced
by the 5th Circuit unpersuasive, and denied the motion to dismiss
the harassment and retaliation claims.  

However, the court dismissed a claim of wrongful discharge in
violation of public policy, finding that Arizona courts have
found that such common law claims may not be asserted when
statutory claims are available covering the same conduct. 
Additional claims of intentional infliction of emotional distress
and wrongful retention/failure to supervise were not addressed in
this motion. A.S.L.

Virginia Court of Appeals Remands Bottoms Visitation Case

The Virginia Court of Appeals recently remanded _Bottoms v.
Bottoms_ for further consideration, writing that the
homosexuality of a parent is not the only factor that should be
considered when grating visitation privileges. 1997 WL 421218 (July
29).  This decision marks a preliminary victory for lesbian mother
Sharon Lynne Bottoms, whose daughter was placed into the custody of
the child's maternal grandmother, Pamela Kay Bottoms.  The
visitation decree in question forbade all contact, including verbal
contact, between the child and Bottoms's partner.  Bottoms sought
modification of the decree, arguing that the constraints improperly
restricted her access to the child.

In a memorandum opinion, the court of appeals held that the trial
court had misconstrued _Roe v. Roe_, 228 Va. 722 (1985) to hold
that visitation decisions may be based solely on the sexual
orientation of the mother.  Contrary to the trial court, the
court of appeals interpreted _Doe_ as declining to hold that
homosexuals are unfit parents _per se_.  The court of appeals held
that the relevant inquiries set out in _Doe_ include the parent's
conduct in the presence of the child, the impact of the parental
relationship on the child, and what actions would be in the best
interests of the child.  The court of appeals wrote that the
because of the misapplication of _Doe_, the trial court failed to
consider relevant evidence, and remanded the case for
reconsideration.  S.M.R.

Florida Court Rejects Attack on Gay Ban in Adoption Statute

The Florida statute explicitly barring adoption by gays and
lesbians was upheld by a Florida Circuit Court Judge John A.
Frusciante on July 27.  The court ruled in _Amer v. 
Johnson_, Case No. 92-14370 (Fla.Cir.Ct., Broward Co.), that Fla.
Stat. sec. 63.042, which was passed in 1977, around the time of
the controversial Anita Bryant "save our children" campaign to
overturn a gay rights ordinance, can be upheld as constitutional
under the state's equal protection clause.  In so doing, it denied
relief to petitioner, June Amer, a lesbian who sought to adopt a
child through the Children's Home Society of Florida, Inc. 

The court accepted the premise that the adoption process creates
a legal family relationship which aims to provide children with a
permanent and stable family life, and that the best interest of
the child and the well-being of those persons living within the
surrogate family are the primary adoption proceeding concerns. 
It went on to accept expert testimony that exposure to male and
female role models is of particular significance in child
development. 
The court relied on an estimate that ninety percent of all
children grow up to be heterosexual, regardless of the sexuality of
their parentage, yet found that both parents played a significant
role in aiding the sexual identity development of the child.  It
concluded in accepting evidence that as families deviate from the
male-female parent role model, the child is more prone to develop
emotional handicaps and psychological dysfunctions.

The court found that the Petitioner's equal protection claim did
not involve a fundamental right, a protected liberty interest, or
a suspect class; thus heightened review was not required.  It
used the "rational basis" test, in which legislative provisions are
generally upheld against equal protection challenges, as economic
and social policy statutes bear a presumption of  validity.  A
legislative provision fails rational basis review only when it
rests on grounds wholly irrelevant to the achievement of the
state's objective.  The burden on the challenger is to disprove
every reasonably conceivable basis that might support the
challenged classification.

Both parties acknowledged that the challenged provision is
facially grounded in the state's legitimate interest in protecting
its children.  The court stated that persons seeking to adopt do
not have a fundamental right, but are merely asking the state to
verify that the candidate's adoption would serve the best interests
of the child.  In turning to the crux of the argument, the court
stated that uncontroverted testimony showed that children needed
both male and female influences to develop appropriately.  By their
very nature, homosexual households are obligatorily either
motherless or fatherless.

The state has determined that the best interest of the children
cannot be served by an environment that eliminates heterosexual
role-modeling, when overwhelming evidence shows children need a
male-female environment for healthy development.  Thus, in the
eyes of the court, the statute passes the rational basis test.  It
chose not to address why an unmarried, single, heterosexual adult
could adopt under the statute, when such a party would not be
providing a male-female parental household for the child.

The record showed that Florida has more children awaiting
adoption than available parents wishing to adopt.  Amer offered
that adoption by homosexuals was preferable to leaving a child in
what the court referred to as "foster care drift," which has been
shown to be damaging to the child.  The court opined that if the
state had determined that foster-care drift was preferable to
homosexual adoption, it was within its right to do so. P.T.

Massachusetts Federal District Court Rejects Claimed on Behalf of
Gay Employee Who Committed Suicide

In an opinion that stressed the inadequacies of the plaintiff's
lawyer in framing and presenting the case, U.S. District Judge
Ponsor granted summary judgment against the estate of a gay
employee on claims of discrimination and intentional infliction
of emotional distress.  _Bogdahn v. Hamilton Standard_, 1997 WL
418060 (D. Mass., July 23).  

According to stipulated facts, Paul Pelletier, a gay man serving
as a shop steward for the Machinists union at a Connecticut plant
of Hamilton Standard, was subjected to derogatory language about
homosexuals from a company executive during a grievance meeting
on April 8, 1993.  After the meeting, Pelletier requested that the
union "do something" about the company representative's
homophobia, but nothing was done.  Over the course of the next
year, Pelletier discovered and brought to light various
improprieties by officials of the local union and stimulated
investigations that apparently led nowhere.  In May 1994, Pelletier
lost the annual shop steward election, and complained to the
international union that local officials prevented a fair election. 
Suffering from severe depression, Pelletier committed suicide on
June 16, two weeks after having filed a complaint with the
Connecticut Commission on Human Rights.  Later, Bogdahn, the
administrator of his estate, filed an amended complaint with the
Commission, alleging that the company and union officials had
engaged in a campaign of discrimination, sexual harassment,
slander, and negligent and intentional infliction of emotional
distress against Pelletier, which led to his suicide.

In 1995, Bogdahn filed a diversity suit in federal court, repeating
most of the same claims asserted in the Connecticut
administrative action.  Motions for summary judgment by all the
defendants were referred to a magistrate, who issued a report and
recommendations after holding hearings.  The magistrate recommended
granting summary judgment on all claims except the emotional
distress claim against the company representative.

Judge Ponsor, repeatedly asserting that homophobia was
reprehensible, nonetheless found that summary judgment should be
granted against the plaintiff on all claims.  After affirming the
magistrate's finding that the factual record provided inadequate
support for the various charges against the employer and the
union officials, Ponsor focused in on the emotional distress claim
against Cryer, the company official who allegedly made the
homophobic remarks.  "Under Connecticut law," wrote Ponsor,
"conduct by a defendant that displays bad manners or is merely
insulting or hurts ones' feelings is not sufficient to base an
action for intentional infliction of emotional distress." 
Finding that Cryer's conduct was not "extreme or outrageous,"
Ponsor asserted: "To say this is not to condone the remarks.  They
were certainly both discriminatory, and highly offensive.  However,
they are not sufficiently egregious to satisfy the `extreme and
outrageous' element of plaintiff's claim."  Ponsor also found that
a reasonable jury "simply could not conclude that the comments made
by defendant Cryer over a year before Pelletier took his life were
sufficiently hurtful in themselves to have caused him such severe
emotional distress."

Ponsor laid most of the blame for plaintiff's loss on the motions
to counsel: "To repeat, discrimination against homosexuals is
both despicable and illegal; it should not and must not be
tolerated.  But the evil of the defendants' alleged misconduct does
not relieve plaintiff's attorney of the responsibility to prosecute
his case in accordance with clearly established rules.  Applying
those rules to this case, as to others, the court must conclude
that plaintiff's counsel failed to present sufficient facts to
justify any reasonable jury in concluding that either Bond [a union
official] or Cryer intentionally inflicted emotional distress on
Pelletier."  A.S.L.

11th Circuit Grants Gay Man a Writ of Habeas Corpus Twelve Years
After Murder Conviction

The U.S. Court of Appeals for the 11th Circuit granted a gay
doctor a writ of habeas corpus 12 years after he was convicted of
first-degree murder, reversing the District Court for the Southern
District of Florida.  _Freund v. Butterworth_, 1997 WL 397181 (July
16).  The panel deliberated this highly fact-sensitive appeal for
well over two years before it unanimously concluded that Freund's
trial counsel had flouted legal ethics by representing him in spite
of multiple conflicts of interest.  The firm's lack of judgment
deprived Freund of his 6th Amendment right to the effective
assistance of counsel, the court ruled.

Dr. John Freund, a closeted gay oncologist, suffered from severe
bouts of depression and attempted to commit suicide in June of
1983 by injecting himself with large doses of narcotics.  This
episode had an effect on him similar to a frontal lobotomy, costing
him his medical practice and hospital privileges.  The son of one
of Freund's former patients, John Trent, who had a reputation for
heavy drug use, extreme violence, and prostitution, befriended
Freund with promises of helping him regain his hospital privileges. 
Instead, Trent took advantage of Freund's compromised mental
capacity and lured him to participate in the torture/murder of
Ralph Walker, one of Trent's henchmen.

Trent and Freund were both arrested and indicted as co-defendants
for Walker's murder.   Freund was represented by a firm that had
a thirteen year professional and "social" relationship with Trent. 
Not only had the firm represented Trent previously on drug
possession and aggravated assault charges, but Trent also
admitted supplying friends of the firm with illegal drugs and
organizing sex parties for members of the firm.  

All of the physical evidence pointed to Trent as the murderer; no
physical evidence implicated Freund at all.  The firm nonetheless
chose to pursue an insanity defense on Freund's behalf, rather
than relying on a blame-shifting defense as the evidence seemed to
warrant.  This strategy failed: Freund was convicted of
first-degree murder and sentenced to a life in prison.  Trent,
through separate counsel, pled guilty to second-degree murder and
was a free man at the time of Freund's appeal.

The 11th Circuit was critical not only of the law firm for
agreeing to represent Freund in spite of its prior dealings with
Trent, but also of the four prior judicial decisionmakers -- the
state trial judge, the state district court of appeal, the federal
magistrate judge and federal district judge -- for failing to
perceive the conflict of interest posed by the firm's
representation of Freund.  The seriousness of the conflict of
interest, coupled with the lack of evidence implicating Freund,
warranted the unusual move of issuing the writ.  I.T.  

[N.B.: The case is especially newsworthy because it is very rare
for a federal court of appeals to order the issuance of a writ of
habeas corpus based on ethical violations by trial counsel. A.S.L.]

Federal Court Strikes Down Absolute Ban on Receipt of "Sexually
Explicit" Publications by Prisoners

In an opinion sharply critical of the practice of appending
substantive floor amendments to appropriations bills without any
legislative consideration of their practical consequences or
constitutionality, U.S. District Judge Stanley Sporkin found that
an amendment to the Omnibus Appropriations Act of 1997, Pub.L.
No. 104-208, which prohibits federal prisons from distributing or
making available to prisoners "commercially published information
or material [known to be] sexually explicit or featur[ing]
nudity," violates the First Amendment on its face and should be
permanently enjoined.  _Amatel v. Reno_, 1997 WL 468167 (D.D.C.,
Aug. 12).

In 1979, the Federal Bureau of Prisons (BOP) adopted regulations
giving wardens authority to keep prisons from receiving
publications if the warden's determined, based on review of the
individual publication, that its receipt would be "detrimental to
the security, good order or discipline of the institution or if
[the publication] might facilitate criminal activity."  The
regulations specifically forbid rejecting a publication solely
because its content is "religious, philosophical, political,
social or sexual, or because its content is unpopular or
repugnant."  An interpretive statement by BOP specifically
indicates that under this standard, explicit depictions of
homosexual conduct will normally be excluded, unless the warden
finds that it would not "pose a threat at the local institution,"
but literary material on homosexual themes should not be excluded
if it is not sexually explicit.  Under this standard, which was
found constitutional by the Supreme Court in _Thornburgh v.
Abbott_, 490 U.S. 401 (1989), the ability of inmates to obtain
lesbian and gay publications has varied widely depending upon the
individual determinations of wardens.  The Court upheld the 1979
regulations as not being a "content-based" regulation of speech,
because the focus of the warden's scrutiny was not on censoring
material for its own sake but rather on excluding material that the
warden judged would prove disruptive in the prison context.

During House debate on the Omnibus Appropriations bill last year,
Rep. John Ensign introduced a floor amendment to ban the
distribution of sexually explicit materials in prisons.  In a
statement supporting the amendment, Rep. Christiansen
characterized as "deplorable" that federal prisoners "are granted
access to vulgar, sexually explicit materials while serving time.
. .  I believe this bill will make sure prisons are punishment, not
playgrounds."  The amendment was added to the bill, and
implemented by new BOP regulations published on Nov. 6, 1996. 
Three prisoners filed this suit, joined by several public interest
organizations.

Analyzing the constitutional challenge to the regulations, Judge
Sporkin found that the interest of prisoner rehabilitation,
identified by the government as the content-neutral objective of
this measure, would constitute a "legitimate penological
interest," but questioned whether that is what this amendment was
really about.  "In face of the legislative history behind the
Ensign Amendment and the plain language of the Amendment, this
Court concludes that distinctions on the basis of content were not
drawn solely with a view to the implications for rehabilitation. 
Rather, the Ensign Amendment is a content-based statute with a sole
focus on the sexual nature of the publications it seeks to
prohibit," wrote Sporkin.  "The Ensign Amendment on its face does
exactly what the 1979 regulations did not do: it restricts
materials based solely on sexual content.  Nothing in the statute
or its history indicates any finding by Congress, or even belief on
its part, that prohibition of sexually explicit materials or those
featuring nudity would have further rehabilitative goals in a
manner that prohibition of other materials would not."

Sporkin pointed out the absurdity of the amendment as interpreted
by BOP: Playboy and Penthouse are automatically on the banned
list, but the Sports Illustrated Swimsuit Issue and the Victoria
Secret catalogue come in.  "While there is little doubt that
Playboy and Penthouse have stronger sexual content, there is no
reason to believe that they are nay more or less rehabilitative
than the latter two publications.  If rehabilitation was the
content neutral goal of the Ensign Amendment, then presumably it
would ban all non-rehabilitative publications.  If anything, the
distinction drawn by the new program statement further emphasizes
the non-neutral nature of the Ensign Amendment."

Finally, Sporkin stated the court's concern "that this law
ignores the history of careful and time-tested regulation and
replaces it with a hastily-drafted statute tagged on to a massive
budget bill.  It is clear that this Amendment has nothing to do
with budgetary concerns. . .  It is also clear that the Amendment
was passed with little consideration of its consequences.   there
was no Congressional finding that the old regulations were
deficient in some manner.  There was no Congressional finding that
this Amendment would serve a rehabilitative purpose, or any other
purpose.  There was no investigation into the practical concerns
raised in enforcing such a statute.  And there was no
consideration of the Constitutional concerns raised by such
legislation."

Sporkin issued an order declaring the Ensign Amendment
unconstitutional and permanently enjoining its enforcement.  A.S.L.

New Mexico Appeals Court Asserts Jurisdiction in Interstate
Second Parent Custody/Visitation Dispute

A unanimous panel of the New Mexico Court of Appeals ruled May 5
in _Barnae v. Barnae_, 1997 WL 453121, that the New Mexico trial
court had properly asserted jurisdiction in a case brought by a
California co-parent for custody/visitation with two children she
had been raising with her former lesbian partner before the partner
moved to New Mexico.  The different case law on co-parent
standing in the two jurisdictions appears to have played a
significant role in the court's ruling.

Biological mother and petitioner began their relationship in
California in 1986, shortly after the birth of the first child. 
The second child was conceived by donor insemination in 1991.  In
1992, the parties had a commitment ceremony, although they differ
on what agreements, if any, they had made regarding their rights
and duties with respect to the children.  Petitioner alleges that
until the termination of their relationship in August 1995, she
was the primary caretaker of the children.  After Petitioner moved
out in 1995, she continued to visit and maintain a relationship
with the children, but disputes about her frequency of visitation
appear to have increased as Biological mother complained about her
dropping in unannounced and uninvited and accused her of
"stalking-like behavior."  In January 1996, Biological mother sold
off many possessions and moved to New Mexico, where she enrolled
the older child in school and expressed her intention to settle. 
Petitioner followed and, about a month and a half after the move,
filed suit in the state court seeking custody and/or visitation. 
Biological mother, who reacted to the commencement of the lawsuit
by taking the children back to California and filing a suit in
California state court to affirm her custody rights, moved to
dismiss based on lack of jurisdiction and forum non conveniens
arguments, which were
rejected by the trial court.

The court of appeals, in a decision by Judge Pickard, found that
the Biological Mother and the children had sufficient contacts
with New Mexico to make the state's courts an appropriate place for
this litigation to take place, noting that the facts on which such
a determination is to be made are those existing at the time the
petition was filed, so Biological mother's relocation back to
California was irrelevant.  At a hearing during which the
California trial judge was on a telephone conference line with
the New Mexico trial judge, the California judge asserted that in
light of California case precedents on co-parent lack of standing,
the California suit would probably be dismissed for lack of
standing.

This weighed in to the New Mexico court's determination that the
suit should proceed in New Mexico, where there is appellate
precedent that a co-parent may sue to vindicate parental status. 
In addition, the court rejected the forum non conveniens
argument, noting that when the suit was filed, it appeared that the
Biological mother intended to establish her domicile in New
Mexico and had enrolled a child in school.  

The National Center for Lesbian Rights, assisted by cooperating
attorneys from Heller, Ehrman, White & McAuliffe, filed an amicus
brief with the court.  A.S.L.

N.Y. Appellate Division Upholds NYC Zoning Regulations Against
1st Amendment Challenge

In an irresponsibly terse opinion, considering the significance
of the subject matter, the N.Y. Appellate Division, 1st Department,
rejected a constitutional challenge to N.Y.C. regulations that will
sharply restrict the locations of "adult establishments." 
_Stringfellow's of New York, Ltd., v. City of New York_, 1997 WL
384753 (July 10).

The regulations, initiated by the administration of Mayor Rudolph
Giuliani and passed, after much intense community debate, by the
City Council, restrict the location of adult establishments,
defined as businesses that "regularly feature" or devote a
"substantial portion" of their activities to entertainment or
material that is "characterized by an emphasis on. . . specified
anatomical areas [or] specified sexual activities."  Under the
regulations, such businesses may only operate in a small number
of neighborhoods, remote from residential or central business
areas, and then are restricted in number and forbidden to be
located within specified proximity of schools and churches.  Under
these regulations, most of the "adult establishments" in the
traditionally-gay-oriented West Village may have to close due to
their siting outside permitted areas or their close proximity to
schools or churches.  Many of the businesses in question have
been operating at their present locations for decades with no
community complaints.  The regulations might even be construed to
require closing gay bars that include erotic dancers.

In light of the seriousness of the issues and the important 1st
Amendment issues implicated by the regulations, as well as the
tradition of broad protection for "adult businesses" by the New
York courts under our state constitution, the Appellate
Division's per curiam opinion is startlingly brief.  After a few
sentences stringing together vague platitudes about the zoning
power extracted from past Court of Appeals decisions (including,
ironically, dicta from a decision in which that court rejected an
attempt to close an adult bookstore in the Buffalo area despite
evidence of prostitution on the premises), the court asserts
without any explanation or analysis: "An ordinance such as the
one in issue meets that test" and rejects, without any explanation
or discussion, arguments by the plaintiffs seeking to distinguish
a Court of Appeals decision that had upheld an adult zoning
ordinance passed by the Town of Islip in Suffolk County.  

Representatives of the plaintiffs immediately indicated their
intention to appeal this decision.  A.S.L.

N.Y. Appellate Courts Exhibit Continued Hostility To Gay Tenant
Succession Claims

Exhibiting unmistakable hostility to lesbian and gay apartment
succession claims and ignoring the spirit of _Braschi v. Stahl
Associates Co._, 74 N.Y.2d 201 (1989), two New York appellate
decisions, announced within days of each other, each yielding a
strong dissenting opinion, held that a family relationship had
not been established under Rent Stabilization Code provisions
modeled after the Braschi family definition guidelines (9NYCRR
2520.6(o)).

In _West End Associates v. Wildfoerster_, 1997 WL 417216 (App.
Div., 1st Dept., July 27), affirming by a 3 to 1 majority an
Appellate Term decision upholding a grant of possession to the
landlord after a non-jury trial, the court adhered to the trial
court's finding that prior to the tenant's AIDS-related death, he
and Frederick B. Wildfoerster, III, had a "very close, loving
relationship" of 20 years, that Wildfoerster was totally
dependent upon the tenant financially, the latter paying for all
household expenses and providing Wildfoerster complete financial
support. Wildfoerster worked as the tenant's business assistant and
personal secretary, lived with the tenant for 2 years prior to the
tenant's death as well as during an earlier 2 year period, and from
the time the tenant first showed signs of AIDS, cared for the
tenant "as a family member would."

In support of their finding of no family relationship, the
majority pointed principally to the absence of financial protection
by the tenant for Wildfoerster by will, insurance, or monetary
gift, and also to evidence that Wildfoerster received his mail at
a different address, which he listed on credit applications, his
driver's license and tax returns, and that there was no commingling
of finances, no joint ownerships, and no indication of sharing of
household expenses.

In a dissenting opinion, Justice E. Leo Milonas repeatedly
invoked _Braschi_ and concluded that in the context of "the
totality of their relationship," Wildfoerster demonstrated the
dedication, caring and self-sacrifice necessary to meet his  burden
under the statute, and established that a family relationship
existed. In addition to the evidence referred to and rejected by
the majority, Milonas cited undisputed testimony that the two
worked out of the apartment, traveled together, attended business
and social functions and entertained together, were visited by
friends and Wildfoerster's parents as a couple, and behaved as a
family. Milonas also cited undisputed testimony of several
witnesses found credible by the trial court that the two shared a
very close and loving relationship, including testimony by a
31-year friend of the tenant that the latter had declared to him
his love for Wildfoerster.

In explanation of the absence of financial sharing and post-death
provision for Wildfoerster, and Wildfoerster's use of a different
mailing address after he moved in with the tenant, Milonas found
that those facts painted an "entirely consistent portrait" with
the finding by the trial court that the tenant was an intensely
private man who took pains to hide his homosexuality; refused to
acknowledge publicly his relationship with Wildfoerster or even
the nature of his illness; the tenant's passion for personal
secrecy was so great that Wildfoerster and the tenant's close
friends exhibited a reluctance to disclose personal information
about the tenant even after his death; and that the foregoing was
consistent with Wildfoerster's facade to the outside world
downplaying their relationship. Milonas concluded that, instead of
considering the totality of the relationship, the trial court had
focused on a single factor, the absence of a will.

Gay Men's Health Crisis filed an amicus brief in support of
Wildfoerster's appeal.

In _54 Featherco, Inc. v. Correa and Maisonet_, N.Y.L.J., July
30, 1997, p. 21, Col. 1 (App. Term, 1st Dept.), affirming by a 2 to
1 majority the trial court's denial to Maisonet of succession
rights, Maisonet and Correa, the tenant of record, had been live-in
lovers for 13 years, until Correa moved out to deal with family
problems in Puerto Rico. They had shared holidays, social
activities, and travel, hosted parties, attended events at
relatives' homes, were in the words of one witness "always
together," called themselves "lovers," and were financially
interdependent. Correa had supported Maisonet, who was disabled,
and Maisonet turned over her welfare checks to Correa, who signed
them over to the landlord.

Giving deference to the findings of fact and credibility of the
trial judge (Pierre B. Turner), who derogatorily defined "lovers"
as "somebody is going to bed with (somebody). . . That doesn't
mean . . . a long term caring relationship," the court held
Maisonet failed to sustain her burden of proof. Acknowledging that
Correa and Maisonet had lived and socialized together for over ten
years, the majority termed them no more than "close friends" and
based their denial of succession rights on the absence of
documentation corroborating the intermingling of finances, sharing
of household expenses, or formalizing their joint obligations, and
on a letter Correa had sent to the Department of Social Services
terming Maisonet a "boarder."

In her dissenting opinion, Justice Helen Freedman found that the
two had a close, loving relationship in which they shared their
lives and finances "in every sense of the word." Invoking Braschi
and itemizing the RSC family definition criteria, Freedman
countered the majority's emphasis on their lack of formalized
legal obligations by pointing out that Correa and Maisonet had
limited income and few possessions and were financially
unsophisticated; and that the only thing of value they had was the
apartment lease, which Correa had attempted to "will" to Maisonet
by writing a letter asking that Maisonet be allowed to retain it.
Freedman concluded that in such cases courts deemed the absence of
formalized legal obligations non-dispositive. Freedman criticized
the trial court's derisive reference to lovers, noting that under
the definition in the American Heritage Dictionary  (2d. College
Ed., 1991), lovers are "a couple in love with each other," which
implies more than a sexual relationship.

The issue arose in a non-payment proceeding against Correa as
tenant of record. The court held that Maisonet was without
standing to defend and that Correa continued to be obligated to pay
rent, leaving open the possibility that if Correa had paid the rent
in her own name, the succession issue might not have arisen. 
A.J.L.

Texas Appeals Court Upholds Dismissal of Palimony Suit Against
Van Cliburn, Citing Statute of Frauds

In Zaremba v. Cliburn, 1997 WL 401176 (July 17), a case that
highlights the importance of written cohabitation agreements for
gay couples, the Texas Court of Appeals affirmed the dismissal of
all but one count of a complaint filed by Thomas Zaremba, the
alleged ex-lover of Harvey Lavan Cliburn, J.R. a/k/a Van Cliburn,
the famous concert pianist, arising from the breakup of their
relationship.  

Zaremba alleged that the two men met in 1966 and began living
together in 1977.  According to Zaremba, when he moved in with
Cliburn, it was expressly or impliedly promised that, in exchange
for managing Cliburn's business affairs, he was promised a share
of Cliburn's assets and income.  After Cliburn broke up the
relationship in 1994, Zaremba sued in Family District Court for
an accounting of partnership assets, imposition of a constructive
trust, breach of contract, breach of fiduciary relationship, bad
faith, fraud, appointment of a receiver, quantum meruit, and
intentional infliction of emotional distress.  The matter was
transferred to District Court (a general trial court), and
Cliburn answered, denying the allegations and raising several
defenses: that all contract claims would have been founded on "an
unwritten agreement concerning conjugal nonmarital cohabitation,"
which would be unenforceable under the Texas Statute of Frauds;
that Zaremba's petition was seeking recovery of community property
that is only available to Texas spouses on dissolution of marriage,
but Texas only recognizes heterosexual unions; that allegations of
quantum meruit and unjust enrichment did not state a claim because
an expectation of reasonable compensation cannot be inferred when
services are rendered to a person of the same household.  Finally,
Cliburn argued that Zaremba's claim of intentional infliction of
distress, which was premised on allegations that Cliburn may have
exposed Zaremba to  HIV, was insufficient because Zaremba did not
allege that he had tested positive for HIV or that Cliburn had HIV.

The trial court agreed with Cliburn, ruling that the claims
stated were all based, in fact, on a purported oral or implied
partnership agreement for services rendered in consideration of
nonmarital conjugal cohabitation, and that such contracts are
barred by the Texas Statute of Frauds.  All of Zaremba's claims
were dismissed with prejudice.

The Court of Appeals affirmed with regard to all causes of action
except to the claim for intentional infliction of emotional
distress.  Zaremba would be allowed to amend his complain to
allege that he had tested positive for HIV or that Cliburn had
contracted HIV.

Until 1987, the Texas Statute of Frauds included "agreement[s]
made on consideration of marriage."  Tex. Bus. & Com. Code sec.
26.01(b)(3).  In 1987, this provision was revised and extended to
"agreement[s] made on consideration of marriage or on
consideration of nonmarital conjugal cohabitation."  This revision
was made in reaction to a case filed for "palimony" in Texas state
courts against Billy Jean King. This can be seen from the extensive
appendix annexed to this decision, which quoted substantial
portions of the hearing before the state Senate Committee on
Jurisprudence and the transcript of the record of the second and
third readings of the bill amending the statute.  Very pointed
references were made to suits against Lee Marvin, Alfred
Bloomingdale, Liberace, and Billy Jean King.  In colorful
language, the position was stated that under the prior law,
unwritten agreements made in consideration of promises to marry
could not be enforced, but unwritten promises made in support of
promises to "live together" could be enforced. The representative
of the Texas Family Law Council characterized such suits as "strike
suits," in which the plaintiffs had never prevailed. The sponsoring
senator put his intentions quite bluntly in debate before the state
Senate: ". . .--yes sir--I'm killing palimony . . . " and " . . .
we won't have to worry about the Lee Marvin kind of lawsuits in
Texas if this bill passes."

The appellate court accepted the intent of the legislature
without qualification, ruling that this was, in fact, a suit to
enforce an unwritten contract relating to a nonmarital conjugal
relationship.  The decision points to the fact that the suit was
originally filed in family court, indicating that Zaremba clearly
thought of this as a "family" matter.  The court would not permit
Zaremba to advance alternative theories to further his claims,
citing case law to the effect that Texas courts looked with
disfavor on litigants seeking to bypass the statue of frauds by
advancing other causes of action.   Zaremba's argument that he
should be allowed to proceed because the contract was entered into
long before the statute of frauds was amended was likewise
rejected, as the court ruled that Zaremba and Cliburn had seven
years time after the revision before they broke up to put their
understanding in writing. S.K.

Convicted Juvenile Murderer of Gay Man Loses Appeal to Suppress
Voluntary Confession 

The Missouri Court of Appeals, Western District, upheld a lower
court's denial of a motion to suppress a voluntary confession of
a 16-year-old boy convicted of murder and sentenced to consecutive
sentences of life imprisonment without possibility of parole for
the lynching and killing of a gay man.  _State_ v. Barnaby_, 1997
WL 405334 (July 22).  The defendant claimed that his videotaped
confession was involuntary and that his trial counsel was
ineffective because his attorney failed to call him as a witness.

Defendant Shawn Dale Barnaby and three friends stalked the Blue
Valley Park in Jackson County to "[m]ak[e] some money" robbing
those perceived as gay.  They sat in hiding until victim William
Childs drove by.  They attacked and ordered him out of his car
whereupon they beat him to the ground.  The teens then dragged
him into the woods where they repeatedly stabbed him all over his
body and struck him twice in the head with a 42-pound rock. 
Barnaby was later arrested and his full confession videotaped by
police with his mother present.  At trial the court denied the
defendant's motion to suppress the videotaped confession and the
case proceeded to trial resulting in guilty verdicts.  Defendant
appealed the denial of his suppression motion.

Barnaby contends that his mother was an unwilling participant
during the questioning, therefore not a "friendly adult" as
required by statute for police interrogation of minors, thus
rendering his confession involuntary.  The Missouri legislature
and courts have recognized that because juveniles may not be able
to assess their rights adequately, they must be allowed to confer
with a friendly adult, such as a parent, guardian or custodian,
during questioning.   Also, whether a confession by a juvenile is
voluntary is to be judged by the totality of the circumstances
with no single factor being dispositive.  The court found no
evidence of involuntariness and sustained the motion court's
ruling.  The record and videotape clearly reflected that the
officers did not badger, accuse, or take advantage of the defendant
or that he was precluded by the authorities from conferring with
his seemingly unwilling mother. 

Barnaby next claims that his counsel was constitutionally
ineffective for not allowing him to testify because "in such
cases jurors would like to hear what the accused has to say on his
own behalf about the incident."  The motion court held that the
allegation was insufficient to require an evidentiary hearing
because there were no specific facts to support his assertion as
required by law.  The appeals court agreed and further stated
that the defendant failed to set forth the content of what his
testimony would have been and how it would have been
outcome-determinative. K.J.R.

Butt Plug and Vibrator Denied Entry

The N.Y. Supreme Court, Appellate Division, 3rd Dept., affirmed
the inadmissibility of an Expando hand-held "butt plug" and a
banana-shaped vibrator in the trial of a 16-year-old man convicted
of the murder of his foster father.  _People v. Roedel_, 660
N.Y.S.2d 97 (July 17).  Roedel, on trial for bludgeoning the victim
with fireplace tools and then slashing his throat with a kitchen
knife, argued justification and extreme emotional disturbance on
the theory that the victim was a pedophile who made unwanted
advances toward and subjected Roedel to sexual contact, and that
Roedel threatened to expose the victim as a homosexual pedophile to
the Division for Youth.  

The trial court allowed Roedel to introduce "a number of homosexual
pornographic films, books and magazines" and "two  sexual
implements that were far more obvious in their function than those
at issue here" found in the victim's home, conditioned on Roedel's
testimony that he had seen the victim using those items and that
the victim "engaged in repeated and multiple acts of sexual abuse
and contact with" Roedel from late 1991 through September 1992. 
The appellate court, citing Roedel's testimony that he only saw the
victim rubbing the vibrator across his lips once for under five
minutes and "trying to wrap [the butt plug] around him[self]" for
ten minutes or less while clad in boxer shorts and socks, affirmed
exclusion of the vibrator and butt plug as both irrelevant and
cumulative.  The court noted that the "defendant apparently shares
our ignorance concerning the intended use of this device because he
testified that he asked the victim what it was and was told that it
was none of his business."  M.M.

Rape Shield Law Applies to Exclude Evidence About Sexual History
of Gay Manslaughter Victim

The N.Y. Appellate Division, 4th Dept., ruled in _People v.
Covich_, 1997 WL 374102 (July 3), that the trial court did not
abuse its discretion when it precluded testimony about past
homosexual activities of the victim in the course of a
manslaughter trial where the defendant raised a justification
defense.  John Covich admitted to the death by strangulation of the
victim during the course of a "homosexual encounter," but contended
he had not intended to kill the victim, raising a justification
defense at trial, and sought to present a witness who would testify
that he (the witness) had a homosexual relationship with the victim
27 years ago and knew that more recently the victim had patronized
male prostitutes.  The trial court precluded this testimony under
CPL 60.42, the so-called rape shield law, finding that the
relationship with the witness was remote in time and that the
circumstances of the incidents the witness would testify about did
not bear a "significant probative relation" to the charges in the
indictment.

The appellate division held that the verdict was not against the
weight of the evidence: "Although the defendant contends that the
killing was an accident and that the victim was the sexual
aggressor, the proof establishes beyond a reasonable doubt that
defendant continued to pull a cord tightly around the victim's
neck until the victim died of asphyxiation."  The court found that
other claimed errors did not cumulatively support the contention
that defendant was denied a fair trial.  A.S.L.

Father Must Pay Gay Son's College Expenses

Rejecting a father's claim that he was abandoned by his gay son,
N.Y.C. Family Court Judge Maney enforced a divorce agreement on
which obligated the father to pay for the son's college expenses.
_Dzierson v. Dzierson_, 1997 WL 435039 (June 26).

Susan B. Dzierson, the mother, brought an action asking the court
to enforce a support provision in the couple's 1979 divorce
agreement.  The father, William V. Dzierson, Jr., had agreed to
be solely responsible for his son's college expenses, including
tuition, room and board at a college of the son's choice.  The
divorce agreement called for the father to be "consulted" on the
decision.  The father filed a cross-petition alleging that he was
"abandoned" by his son, and thus was relieved of his  obligation
to pay for his college expenses and child support. The  son,
William V. Dzierson, III, was born on February 3, 1978.  The mother
had sole custody of the son after the divorce, with the father
having visitation.  In the early part of the son's life, the father
had frequent visitation, including vacations.

In December of 1995, the son "came out"to the father.   The
father told the son that he couldn't accept his "lifestyle" and
"didn't know how he would be part of his son's life. . ."  He
testified that he his son refused to speak with him from that point
until May 1996. 

The court rejected his claim of abandonment and dismissed his
cross-petition on the merits.  In making its finding, the court
found that a parent's statutory obligation of support until a
child's 21st birthday can only be terminated if the child
"voluntarily abandons the noncustodial parent by refusing all
contacts or visitation, without cause," citing _Radin v.
Radin_, 209 A.D.2d 396.  The court found that while the son had a
"reluctance" to keep a normal relationship with his father, this
did not constitute abandonment.

The court found that the son consulted with the father on his
decision to go to Emerson College.  In discussing the finding on
the issue of consultation, the court implied that the father
intentionally tried to avoid "becoming intimately involved" with
his son as a "tactic" to avoid paying his college expenses.  The
court refused to impose what it described as a "penalty" on the
son.  D.R.S.

Gay Prisoner Loses Suit Over Mail Interdiction

Joseph Allen, a gay Washington State prisoner, lost his pro se
suit against prison authorities over their interception of various
forms of mail, including lesbian/gay-oriented material.  _Allen v.
Wood_, 1997 WL 392182 (E.D.Wash. June 9).  

Allen complained about the interception and confiscation of
catalogues, magazines, some personal correspondence, postage
stamps, and a greeting card.  Prison authorities moved for
summary judgment.  Unfortunately, Allen, unrepresented, did not
file a response to the motion.  

It is frustrating reading District Judge Suko's decision, since
at many points Allen appears to have lost by default, since there
was nobody to make the requisite constitutional arguments on his
behalf and the state's arguments went unrebutted.  Most
significantly, the court's discussion of the equal protection
issues concerning the exclusion of gay-related materials is
breathtakingly superficial in light of _Romer v. Evans_, a case
never mentioned in the opinion.  (The opinion speaks as if the
Equal Protection Clause provides no protection against
discrimination on the basis of sexual orientation, a clearly
incorrect assertion after _Romer_.)  The court found that all the
exclusions were justified by legitimate penological concerns,
accepting at face value as "unrebutted" the entire range of
justifications presented by the prison authorities for each
exclusion.  A.S.L.

California Court of Appeals Upholds Student Government's
Political Use of Student Activity Fees

The California Court of Appeal, First District, ruled July 25 in
_Smith v. Regents of the Univ. of Calif._, 1997 WL 414867, that
the educational value of student government political activities
outweighed the burden on dissenting students' free speech and
associational rights when mandatory student fees went to student
organizations that engaged in political advocacy.  Conservative
student groups have initiated lawsuits in several jurisdictions
attempting to defund such groups as lesbian/gay student
organizations, arguing that it violates the conservative
students' constitutional rights to require them to pay activity
fees that subsidize other students in carrying on political
activities with which the fee-payers disagree.  This suit, by
contrast, directly attacked the political activities of the student
government organization.

In this case, on remand from a California Supreme Court decision,
844 P.2d 500, cert. denied, 510 U.S. 863 (1993), in which that
court had found that use of the fees did represent an
infringement of constitutional rights and remanded for
consideration of the balance of burdens under established First
Amendment principles, the trial court had found that the financial
burden on complaining students was minimal.  On appeal, the court
of appeal agreed with the plaintiffs that the issue went beyond
financial burden, and that it was up to the government to prove
that the challenged use of the fees was justified in spite of this
burden.  But the court then went on to endorse the trial court's
finding that the political activities of the student government had
significant, and not merely incidental, educational value.  The
court concluded that
so long as the education benefit of these activities was not
merely incidental to the pursuit of political goals, the courts
should not interfere with the educational judgment of the
university in deciding to use student activity fees to fund these
activities. A.S.L.

Domestic Partnership & Marriage Notes

Denver, Colorado, District Court Judge Robert Hyatt ruled July 16
that the city's domestic partnership benefits ordinance, which
extends eligibility for insurance coverage to the domestic
partners of city employees, does not go beyond the city's home rule
authority and is not preempted by state law.  _Schaefer v. City and
County of Denver_, No. 96-CV-6630 (Colo.Dist.Ct., Denver Co.). 
Hyatt held that the Uniform Marriage Act, relied on by the
plaintiffs to contend that the city's action was ultra vires, was
not relevant, since it deals with conditions for obtaining a
marriage license, and domestic partnership is not marriage.  The
city ordinance, said Hyatt, "simply adds a new group of persons
eligible for insurance coverage."  Hyatt found no provision of
state law specifically prohibiting the city from extending such
eligibility.  BNA Daily Labor Report No. 147, 7/31/97, at A-7;
_Rocky Mountain News_, July 17.

A lawsuit against the Chapel Hill, North Carolina, domestic
partnership benefits program was filed anonymously by a citizen
styling himself "Publius Heterodoxus," who argued in court papers
that he/she had to proceed anonymously out of fear of
"retribution" from "militant homosexuals."  Lawyer Sharon Thompson,
who represents the town in defending its policy, says there is no
justification for allowing the plaintiff to proceed anonymously,
and expects to ask the court to require the plaintiff to file in
his/her own name.  The North Carolina Press Association is also
considering a legal challenge to allowing the plaintiff to remain
anonymous, citing a state constitutional provision requiring that
"all courts must be open."  _News & Observer_ (Raleigh, NC), Aug.
21.

Three same-sex couples in Vermont filed suit against the state on
July 22 seeking marriage licenses.  _Baker v. State_, Chittenden
Superior Court.  The suit was filed by Vermont attorneys Susan
Murray and Beth Robinson, of Langrock, Sperry & Wool, in
collaboration with Mary Bonauto, staff attorney at Gay & Lesbian
Advocates & Defenders, a Boston-based public interest law firm,
and resulted from discussions between the legal staffs of the major
lesbian and gay rights litigation organizations, which agreed that
the time was right to build on the progress in Hawaii by initiating
suit in another state with a pro-gay climate (state
anti-discrimination law, public sector domestic partnership
benefits, no sodomy law, gay-friendly governor and legislature,
reasonably gay-friendly courts that have approved second-parent
adoptions).  In recent cases, the Vermont Supreme court has taken
an expansive view of the scope of its state equal protection
clause, beyond the requirements of federal equal protection.  In
addition, the Vermont constitution has a "common benefit" clause,
which has been construed to require that benefits provided by the
state be made available to all the citizens.  Married couples in
Vermont receive more than 150 benefits under state laws and
regulations that are not available to same-sex couples.  _Boston
Globe_, July 22; GLAD Press Release, July 22.

Among employers newly announcing policies extending benefits
eligibility to domestic partners of their employees in recent
months are:  Shell Oil Co., the first major energy company to
adopt such a policy, effective in 1998 (_Houston Chronicle_, July
8); The Episcopal Church in the United States, by vote of its
general convention on July 19, authorized local churches to adopt
domestic partner benefits plans for clergy and lay employees,
although at the same meeting the convention narrowly defeated a
motion to allow ministers of the church to bless same-sex unions
(_Los Angeles Times_, July 20) (later in the 10-day convention, the
church also voted to officially apologize to lesbians and gay men
for "years of rejection and maltreatment", _Philadelphia Inquirer_,
July 26); J.P. Morgan & Company, whose plan will go into effect
Dec. 1, becoming the first major Wall Street investment house to
adopt such a plan (_New York Times_, July 25) (a report in the
_Wall Street Journal_ said that other major firms now considering
such policies includes Merrill Lynch, Morgan Stanley, Dean Witter,
and Goldman Sachs); Lucent Technologies, effective Jan. 1, 1998,
according to an Internet posting by Lucent employees; U.S. West,
effective Jan. 1, 1998; VISA Corp. and Aetna Insurance.  

The _Philadelphia Inquirer_ reported Aug. 15 that a neutral labor
arbitrator broke a tie between union and management representatives
and ruled that same-sex domestic partners of employees of
Philadelphia Newspapers, Inc., the _Inquirer_'s parent company, are
entitled to inclusion in the company's group health insurance
programs.  This will also affect employees of the commonly-owned
_Philadelphia Daily News_.  Arbitrator Robert Nagle found that the
cost to the employer would be "negligible,_ and that the
jointly-administered labor/management health and welfare fund had
"ample resources" to absorb the costs.  Arbitrator Nagle left to
fund trustees the task of framing eligibility criteria.  The ruling
pertained only to same-sex partners.

Harvard University announced that same-sex marriage ceremonies
may be held in the University's Memorial Church.  Rev. Peter Gomes,
the minister of the church, who is openly gay, stated: "I am
pleased to be able to extend the hospitality of the university
church to all members of the university."  In recent months, both
Princeton and Emory Universities have determined that such
ceremonies may not be held in their church buildings.  

What's going on in Hawaii now?  Confusion, evidently, about
implementation of the new reciprocal beneficiaries law, which
went into effect in July.  Attorney General Margery Bronster issued
an opinion suggesting that most Hawaii businesses were not required
to provide medical coverage to partners of employees, and several
large businesses joined together to file a lawsuit challenging the
law, presumably arguing that ERISA preemption ousted the state of
jurisdiction to require them to extend their benefits plans to
employees' partners. _Honolulu Advertiser_, Aug. 15. A hearing is
scheduled on the lawsuit for Sept. 22.  Meantime, wrangling
continues over when or whether the state will have to hold a new
referendum about having a constitutional convention.  Proponents of
the convention prevailed before a Federal District Judge David
Ezra, who found that the state courts had improperly changed the
rules of the game after the vote in last year's general election.

A majority of those voting on the question had voted "yes," but
enough ballots were left empty on that question to deprive the
convention supporters of an absolute majority of votes ballots
case.  The Hawaii Supreme Court ruled last winter, in a suit
brought by the state's labor union federation, that such an
absolute majority was required.  The federal judge reasoned that
since this interpretation was not established prior to the last
election, voters were not aware that their failure to vote on the
question would be counted as a "no" vote, thus rendering the
election unfair.  The federal court ordered a new election in 60
days from its ruling, but the state managed to win an extension
to December as it contemplated an appeal to the 9th Circuit. 
Proponents of the convention hope to amend the constitution to
overrule the Hawaii Supreme Court's same-sex marriage decision of
1993.  _Washington Times_, July 21.  Although the Hawaii Supreme
Court had not yet set a date for oral argument in the state's
appeal of last year's order by Judge Chang requiring issuance of
marriage licenses to same-sex couples as we went to press, it has
denied the state's motion to delay consideration of the case
until after the 1998 general election, according to Lambda Legal
Defense Fund attorney Evan Wolfson, who is co-counsel in the case. 
At the 1998 general election, Hawaii's voters will face a proposal
to amend their constitution to allow (but not compel) the
legislature to restrict marriage to opposite-sex couples.  A.S.L.

Law and Society Notes

When the U.S. Supreme Court ruled in _Washington v. Glucksberg_,
117 S.Ct. 2258 (June 26, 1997), and _Vacco v. Quill_, 117 S.Ct.
2293 (June 26, 1997), that states violated neither the due
process nor equal protection clauses of the 14th Amendment by
making it a crime for a person to assist somebody in committing
suicide, there was a case pending before the Florida Supreme Court
raising the same issue under the Florida constitution's right of
privacy.  The case, _Krischer v. McIver_, 1997 WL 414567, yielded
a decision on July 17, consistent with the U.S. Supreme Court's
handling of the issue.  With one dissent, the court found that the
right to privacy in this instance was overcome by compelling state
interests in preserving and protecting life.  The case was brought
by a person with AIDS and his doctor.

In _State v. Cagle_, 1997 WL 422673 (July 24), the North Carolina
Supreme Court affirmed a death sentence for Richard Cagle and a
sentence of life imprisonment for Michael Scott in the murder of
Dennis House, a gay man.  The evidence showed that Cagle, Scott
and others went out to a gay bar with the specific intention of
finding, robbing and assaulting a gay man.  In appealing the
sentences, the defendants sought to draw analogies to other cases
in which lesser sentences were imposed.  Writing for the court,
Justice Orr stated: "Another distinguishing feature in the case
before us is that the evidence suggests that the crime was
motivated in part by prejudice toward homosexuals.  The co-
conspirators continually referred to their plan to rob House as a
plan to `roll a fag.'  The plan to stab House, instigated by
Cagle, was carried out when Cagle induced House to perform a
homosexual act, thereby placing him in a vulnerable position."

In the never-ending saga of litigation by the homophobic minister
Fred Phelps, Sr., and his Westboro Baptist Church, arising out of
the church's policy of picketing AIDS-related funerals and other
public gatherings of gay groups, the U.S. Court of Appeals for
the 10th Circuit ruled on Aug. 12 in _Phelps v. Hamilton_, 1997 WL
458688, that the federal district court in Colorado had
appropriately abstained from intervening in several state
prosecutions brought against Phelps  and the church by a local
prosecutor in connection with some of their picketing activities.

Phelps had sought a federal injunction on 1st Amendment grounds,
and argued that the normal rule of federal abstention from
intervention in pending state criminal proceedings should not
apply because of bad faith by the prosecutor.  The court found it
was not enough to show that the prosecutor actively disliked Phelps
and personally opposed his anti-gay activities in order to qualify
for the bad faith exception.  A.S.L.

I.R.S. Backs Down in Confrontation With Gay Group

Lambda Legal Defense & Education Fund successfully intervened
with the Internal Revenue Service on behalf of a support group for
gay adolescents seeking tax exempt status under sec. 501(c)(3) of
the Internal Revenue Code.  

Gay & Lesbian Adolescent Support System (GLASS), a non-profit
group in Glassboro, North Carolina, which had applied for the tax
status, received a letter from the IRS dated September 10, 1996,
posing detailed inquiries about its operations, and containing the
following objectionable statement: "As presented in your
literature, the positions espoused by your organization may be
viewed as appear as tending (sic) to encourage or facilitate
homosexual practices or would encourage the development of
homosexual attitudes and propensities by the young and
impressionable.  Please describe in detail the procedures and
safeguards in place to assure that counsellors and participants
do not encourage or facilitate homosexual practices or encourage
the development of homosexual attitudes and propensities by minor
individuals attending your programs."

The letter stated that processing of GLASS's application would be
deferred until the requested information was received, and that
it would be assumed that GLASS did not want to pursue the tax
status if an answer was not received within 30 days.

David Buckel, a Lambda staff attorney, wrote to the IRS on July
1, 1997, on behalf of GLASS, pointing out the free speech and equal
protection implications of the IRS's letter and demanding its
withdrawal as well as non-discriminatory processing of GLASS's
application.  In a letter dated July 9, 1997, the IRS responded,
indicating that GLASS's application would be revived and reassigned
to a new investigator, and that the September 10, 1996 letter would
be "withdrawn."  A.S.L.

Law & Society Notes:

What could have turned into the gay trial of the century was
aborted when Andrew Cunanan, alleged killer of five men (three of
them gay), committed suicide in a Miami Beach houseboat on July
24. (In media reports late in August, Cunanan's mother was quoted
as asserting he had not committed suicide, but had been killed by
the police alerted to his present in the houseboat by a security
guard.)  The whereabouts of Cunanan became a national preoccupation
after the murder of prominent gay fashion designer Gianni Versace
in front of his South Beach mansion.  Media sensitivity to the gay
issues in the case were mixed, with some reinforcing stereotypes
about "homicidal homosexuals" while others characterized Cunanan's
behavior as aberrant.

The American Psychological Association's Council of
Representatives, meeting in Chicago in mid-August, adopted a
resolution reaffirming its view that homosexuality is not a
mental illness or defect, but declining to approve a resolution
making it an ethical violation for its members to engage in
therapeutic attempts to alter sexual orientation.  It was
interesting to observe the media spin on this action: Most of the
press reported it as an effective condemnation of those
psychologists who claim they are able to "cure" homosexuality,
while others saw it as giving the green light to such practitioners
to continue their activities.  Ironically, the following week _The
New Yorker_ (Aug. 25 & Sept. 1 double issue) published an extensive
excerpt from a new biography of Dr. Alfred C. Kinsey, lead author
of the pathbreaking 1948 publication, _Sexual Behavior in the Human
Male_.  Kinsey's book revolutionized scientific discussion of
homosexuality
by purporting to demonstrate that a large minority of the male
population engaged in at least some homosexual activity, and that
at least 10 percent were predominantly homosexual for several
years of their adult life.  Biographer James H. Jones contends that
Kinsey was himself a closeted gay man who enjoyed sadomasochistic
sex and occasionally engaged in sexual activity with his male
survey subjects.  Pointing out the non-representative nature of the
survey population underlying Kinsey's study, Jones asserted that
the survey was skewed in favor of finding much more homosexual
activity than would be detected by a scientifically constructed
random survey (as more recent surveys have suggested, putting the
predominantly gay figure at more like 2 to 3 percent of the adult
male population).  The biography will become available in October.

National media attention focused in mid-August on the case of
Army Lt. Col. Loren Loomis, discharged from the service on grounds
of homosexuality with a "less than honorable discharge" just a week
before he would have been eligible to retire with full benefits
based on his years of service.  Loomis had kept a low profile,
although he was open about his homosexuality with some other Army
personnel at Fort Hood, but avoided trouble under the "don't ask,
don't tell" policy, until an enlisted man who had participated in
naked revels at Loomis's private house burned the place down in an
attempt to destroy a videotape that showed him parading naked. 
Arson investigators examining the interior of the house came across
a video camera on a tripod, still loaded with the relevant tape,
and turned the tape over to military authorities.  The tape
depicted Loomis engaging in homosexual acts with other enlisted
men.  The arsonist served 90 days in jail, was given a 10-year
probated sentence, and was ordered to pay restitution for property
damage.  Loomis is preparing to appeal his discharge to the Board
for Correction of Military Records.  The Servicemembers Legal
Defense Network criticized the discharge as a departure from the
"don't ask, don't tell" rule, pointing out that military
investigators are not supposed to search out evidence of a member's
sexual activities, and noting that Loomis had asked for permission
to retire, so there was no urgent need to discharge him prior to
his full benefit date.  _Houston Chronicle_, Aug. 17.

U.S. House of Representatives Speaker Newt Gingrich, observing
that all the attention being focused on sexuality in the military
was "demoralizing to active personnel," called for the creation of
a commission to take an overall look at the issue of sex in the
armed forces.  Speaking on a Sunday television talk show on Aug. 3,
Gingrich said that recent events had turned the military into a
"social laboratory" and commented: "You don't hire a military as a
social laboratory."  _Chicago Tribune_, Aug. 4.

The _Washington Blade_ (Aug. 15) reported that the Immigration
and Naturalization Service had granted political asylum on March 31
to a gay man from Bangladesh, who credibly asserted that he was
threatened with death by stoning by Islamic fundamentalists in his
home city.

Washington State Secretary of State Ralph Munro announced Aug. 5
that proponents of a ballot measure to ban sexual orientation
discrimination in the state had presented sufficient valid
signatures to place their issue on the ballot this November,
along with seven other certified ballot questions.  Initiative 677
would bar employment discrimination on the basis of sexual
orientation in workplaces with more than eight employees,
authorizing those suffering discrimination on the basis of actual
or perceived sexual orientation to bring suit in state court
seeking damages. _Seattle Times_, Aug. 5.  If this measure passes,
it would be the first time that the voters of a state have enacted
such protection for lesbian and gay residents.

A trial court decision in Connecticut allowing a second-parent
adoption by a lesbian couple, announced on April 24, 1996, has
been belatedly selected for official publication.  _In re  Adoption
of Baby Z_, 45 Conn. Supp. 33.  It will also be published in the
Atlantic Reporter.  The text of the opinion has become available
on-line as well: 1996 WL 910150.

Evanston, Illinois, which has long banned sexual orientation
discrimination by city ordinance, has now expanded the ordinance
to protect transgendered persons as well.  The unanimous July 28
vote followed hearings in which a local lobbying group persuaded
the City Council that existing laws provided no protection. 
Evanston is the first Illinois jurisdiction to extend such
protection. _Chicago Tribune_, July 29.  

LeGaL member Elaine H. Nissen has reported success in obtaining a
second parent adoption in New Jersey on behalf of a gay male
couple, where the adopting second parent has AIDS and derives his
sole source of income from disability benefits.  The first parent
adopted the child in Texas, in 1995, and it has been raised by
the two men since November 1994.  The adoption was approved on June
6, 1997, by New Jersey Superior Court Judge Mac D. Hunter (Hudson
County), after extensive AIDS education for the judge.  Anybody
conducting or contemplating similar proceedings who wants more
information about the case may contact Nissen at 212-685-3539 or
201-461-8630, or <ehnissen@aol.com>.

Six months ago, the Wayne-Westland, Michigan, school board voted
to adopt a policy prohibiting sexual orientation discrimination and
harassment in its schools.  Then, over the summer, a school board
election led to the defeat of the chair and some other members. 
Now, the new board majority voted to rescind the policy, while
adopting a broad policy statement condemning discrimination without
identifying specific grounds.  The new board president said that
while she was "concerned" about anti-gay discrimination, existing
conduct codes and state law already provided adequate protection
for students and staff.  _Detroit News_, Aug. 20. A.S.L.

Pending Litigation Notes

Kristie Vecchione is seeking an annulment of her marriage with
Joshua Vecchione on grounds that Joshua, a post-operative
transsexual, is really still legally a woman and so their
marriage was void as a same-sex marriage.  Kristie is making this
argument in the context of a custody proceeding in Orange County,
California.  An annulment would make Kristie the sole parent of
their 3-year-old daughter, who was conceived by donor insemination
using semen donated by Joshua's brother.  Kristie claims that she
married under false pretenses when she was 18; although Joshua, who
was raised as Janine, told her he was a transsexual, she claims he
also told her that he had formerly possessed genitalia of both
sexes and was capable of producing sperm. Joshua is represented by
Taylor Flynn of the ACLU's Lesbian & Gay Rights Project. _Rocky
Mountain News_, July 20.

The American Civil Liberties Union of Washington filed suit in
U.S. District Court in Seattle on July 23 on behalf of Mark
Iversen, a gay teen who claims he was brutally beaten and kicked in
a classroom at Kentwood High School in October 1996 by eight
classmates who yelled "faggot" and "queer" as they struck him,
with other students watching and encouraging the assault.  Iversen
claims school authorities were alerted to repeated harassment but
did nothing to protect him, and that teachers joined in the
harassing conduct.  Reading the ACLU's factual summary of the case
inspires deja vu, since it sounds almost exactly like the facts in
_Nabozny v. Podlesny_, 92 F.3d 446 (7th Cir. 1996), in which the
court upheld an equal protection claim by a student under similar
circumstances and the matter was ultimately settled for $900,000 in
damages.  ACLU Press Release, July 23.

A lesbian mother and a gay male sperm donor are battling in Cook
County Circuit Court over parental rights to a child conceived
through donor insemination.  On Aug. 4, Circuit Court Judge
Kathleen Kennedy denied a motion by Lynn Alleruzzo, the birth
mother, to dismiss Kevin Green's petition for joint custody,
visitation, the right to share in the boy's support, and
declaration of paternity.  The litigation arose after Green
refused to give consent to the adoption of the baby by Alleruzzo's
partner.  Alleruzzo and Green assert divergent accounts of the
understandings they had concerning his role or lack thereof as a
parent prior to the sperm donation.  Green characterized the
court's ruling on the motion as a victory, "but not a very strong
one.  I still can't see my child."  (Alleruzzo terminated Green's
visitation with the child once the dispute arose, asserting that he
had violated an agreement to consent to the adoption.)  Judge
Kennedy appointed a guardian to represent the child's interest in
the litigation, and ordered a report on whether it would be in the
child's best interest to establish a father-son bond with Green. 
According to the _Chicago Tribune_, Aug. 5, Green and his partner
and Alleruzzo and her partner had been good friends prior to the
controversy.

The ACLU filed suit in the U.S. District Court for Idaho on July
31 on behalf of Peter Boag, a historian at Idaho State University
whose research project was denied funding specifically because of
its gay subject matter.  Claiming a violation of academic freedom
by the Idaho Board of Education, which vetoed the grant, the suit
alleges a First Amendment violation because the grant involved
public funds.  Sixteen research proposals were presented to the
board during this grant cycle; all were approved except Boag's,
even though it was recommended by the board's higher education
council and Boag's academic peers.  The faculty council at Idaho
State passed a resolution condemning the vote, the American
Association of University Professors sent a letter of protest to
the board.  ACLU Press Release, July 31.

The Florida First District Court of Appeal has withdrawn its
opinion in _Ward v. Ward_, 1996 WL 491692 (Aug. 20, 1996), in
which it upheld an award of custody to John Ward in preference to
lesbian mother Mary Ward.  Mary Ward died suddenly while a motion
was pending for reconsideration of the court's ruling, making her
custody petition moot.  In a one-paragraph order issued on Aug.
4, the court dismissed the appeal and withdrew the 1996 decision,
which had not been officially published.  Charlene Carres, a
Tallahassee lawyer who represented Ward, said, "We definitely
consider this a victory because the decision which upheld the
trial court's order is a very bad precedent, a very bad example for
trial courts to follow."  The trial court's state rationale for its
custody ruling was that the daughter, who had been raised by her
mother from birth to age 12, was entitled to "a chance to live in
a non-lesbian world."  _Sun Sentinel_, Aug. 5.

Stanislaus County, California, Superior Court Judge Edward Lacy
has convicted Ivy Lynn Martin of first degree murder in the death
of her son, who was beaten to death by Martin's lesbian partner. 
Lacy found that Martin's lover, who was also convicted, beat
Martin's young son daily.  Although Martin was not present when the
fatal blow was struck in 1989, Lacy found her complicit in the
murder.  A jury had previously convicted Martin, but the U.S. Court
of Appeals for the 9th Circuit had ordered a new trial on a habeas
petition, finding that Lacy had improperly instructed the jury. 
Martin's attorney vowed to appeal the verdict.  _Sacramento Bee_,
Aug. 17.

A man who claims he was innocently scratching a rash in his
crotch while relieving himself in a restroom in a store in the
Altamonte Mall in Sanford, Florida, is suing the municipalities of
Altamonte Springs and Sanford for being arrested in a police
crackdown on restroom sex at the mall.  Terry Kaplan is asserting
claims of false arrest, invasion of privacy, and malicious
prosecution, seeking $15,000 damages.  Allegedly reacting to
complaints by store employees about sexual activity in the
restroom, the police drilled a peephole in the side of a stall in
the men's room and stationed an officer in an adjacent stall to spy
on individuals who made suspicious noises.  A police officer
claimed that Kaplan was masturbating and making a "pleasure moan"
and arrested him on the spot.  At a hearing on Aug. 11, Circuit
Judge Leonard Wood refused to dismiss the lawsuit.  Wood commented,
"I think anybody. . . has the right to privacy when they go to the
bathroom.  If not, why do they put doors on?"  Kaplan was one of
eight people arrested on the same day in that restroom, but charges
were dropped several months after the arrest.  He has already
rejected a $5,000 settlement offer.  Good for him!  _Orlando
Sentinel_, Aug. 12.  A.S.L.

AALS Creates Military Exception To Non-Discrimination Policy;
Seeks Amicus Participation in Lawsuit Challenging the Anti-Gay
Military Ban; Schools Begin to Lift Bans In Response to Solomon
Amendment and Anticipated Regulations

Bowing to the situation created by the most recent version of the
Solomon Amendment, which bans federal financial assistance to
institutions of higher education that bar military recruiters
from their facilities, the Executive Committee of the Association
of American Law Schools voted to create a military exception to its
by-law requirement that member schools exclude employers who will
not certify that they do not discriminate on the basis of sexual
orientation.  The Committee's action was sparked by information
from U.S. Department of Education indicating that implementing
regulations for the Solomon Amendment, which are still being
drafted, will affect federal work study money and Perkins Loan
Funds that are channelled to student recipients through the law
schools.  (Direct student loans will not be affected.)  Nearly 90
percent of member law schools stand to lose federal money if they
persist in barring military recruiters.  Also at risk will be any
federal research grants to faculty members at affected schools.

In a memo to law school deans by AALS Executive Director Carl C.
Monk, dated Aug. 13, the Executive Committee indicated its hope
that member schools would try to find alternative funds to
replace federal money before deciding to allow military recruiters
on campus, and imposed a requirement that schools allowing military
recruitment undertake ameliorative efforts to preserve a
non-discriminatory atmosphere on their campus.  Among the
ameliorative efforts suggested: informing students that the
military discriminates on a basis forbidden by AALS and their law
school's non-discrimination policies and that the military
recruiters are only being allowed on campus due to threatened loss
of federal funding, holding public forums for discussion of the
military policy or, more broadly, the issue of sexual orientation
discrimination.  In assessing the environment at the law school,
the AALS will also take note of the existence of active lesbian/gay
student organizations, and the presence of openly gay faculty and
staff.  And, seeking to throw whatever persuasive weight it may
have against the military policy, the AALS will seek permission to
file an amicus brief with the U.S. Court of Appeals for the 2nd
Circuit in _Able v. U.S._, an appeal by the government from a
decision holding the military's current policy unconstitutional. 

On Aug. 21, the _Minneapolis Star Tribune_ reported that William
Mitchell College of Law, in St. Paul, was considering lifting its
ban on military recruiters, since it stood to lose over $400,000
in federal loan and work study money.  The article reported that
Hamline University, also in St. Paul, had quietly capitulated to
the military in June. 

Facing up to the reality of new federal regulations, the City
College of San Francisco's board of trustees voted Aug. 18 to
lift the ban on military recruiting at the school.  The College
stood to lose $1.7 million in federal funds for work study and
student loan programs if it did not allow the recruiting.  Several
other schools in the Bay Area have also changed their policy as a
result of the threatened loss of funds, including San Jose and
Sonoma State Universities and Mills College.  _San Francisco
Chronicle_, Aug. 19. A.S.L.

Professional Notes

We would be remiss not to note the death of Justice William J.
Brennan, Jr., at the age of 91.  Justice Brennan consistently
voted in favor of gay rights over the course of a long career on
the Supreme Court beginning in the 1950's.  Even before Stonewall,
he was voting in favor of gay litigants in immigration and
naturalization cases.  He was among the dissenters in _Bowers v.
Hardwick_, and, in a significant dissent to a denial of
certiorari in a case concerning the discharge of a lesbian junior
high school guidance counselor, he laid the groundwork for the
hoped-for future ruling finding that anti-gay discrimination should
be subject to strict scrutiny under the Equal Protection Clause. 
See _Rowland v. Mad River Local School District_, 470 U.S. 1009
(1985).  Justice Brennan's votes in gay-related cases were, of
course, consistent with the "radical egalitarianism" with which he
was charged by such critics as Edwin Meese and Robert Bork.  To
Justice Brennan, every human being was entitled to a full measure
of dignity and respect from society, regardless of their personal
characteristics, whether they be race, religion, disability, sex or
sexual orientation.  In perhaps his most significant written
opinion for the cause of human dignity, Justice Brennan wrote for
the Court in the key precedent extending the protection of
disability discrimination laws to
persons with contagious conditions, _School Bd. of Nassau Co. v.
Arline_, 480 U.S. 273 (1987) - a decision subsequently codified
by Congress in amendments to the Rehabilitation Act and whose
reasoning was incorporated in the Americans With Disabilities Act. 

The board of directors of the National Lesbian and Gay Law
Association, meeting in San Francisco during the ABA annual
meeting early in August, amended NLGLA's by-laws to indicate that
the lesbian and gay community, as referenced in the by-laws,
includes bisexuals and transgendered persons.  This action was
taken after a report by a special committee that had been working
since the last Lavender Law conference on the issue of transgender
inclusion in NLGLA.

The New Jersey Supreme Court has appointed a Task Force on Gay
and Lesbian Issues, with a mandate to study and report on anti-gay
bias in the state court system, and to recommend remedial measures. 
The 25-member Task Force includes several representatives from the
lesbian and gay legal community, including Joshua Goodman, board
president of the New Jersey Lesbian & Gay Law Association, attorney
Theodore R. Bohn, Ruth Harlow of Lambda Legal Defense & Education
Fund, and Professor Annamay Shepard of Rutgers Law School in
Newark.

A gay attorney, Richard Yao, was temporarily suspended from
practice by the N.Y. Appellate Division, 1st Department, in an
opinion published in the _NY Law Journal_, 7/21/97, p.6, based on
findings last year in a civil suit that Yao had attempted to
extort money from John Bult, described as "a wealthy financial
executive with whom he had a brief, intimate relationship."  Yao
sued Bult for breach of contract, claiming that Bult had made an
enforceable promise to pay Yao $10,000 a month for the rest of
Yao's life in exchange for Yao's promise not to reveal certain
information about Bult's "personal life."  The trial court in that
case, _Yao v. Bult_, sanctioned Yao and his attorney, finding the
alleged agreement to be illegal and "nothing more than an attempt
to extort money from an apparently wealthy but vulnerable
individual."  The Appellate Division, responding to a motion from
the Disciplinary Committee, found the prior trial court findings a
sufficient basis to hold Yao in violation of disciplinary rules for
attorneys and to impose a temporary suspension, pending a full
investigation by the Disciplinary Committee.  Although Yao is not
an active legal practitioner, he did practice corporate law briefly
before going into business.  A.S.L.

South African Court Strikes Down Sodomy Law

The High Court of South Africa, Cape of Good Hope Provincial
Division, has ruled that the common law penalty for consensual
sodomy between males as applied to consenting adults in private
violates the new South African Constitution.  _State v. Kampher_,
No. 001377/97, Case No. 232/97.  Writing for the court, Justice
Farlam found that the sodomy law specifically violates the
constitution's guarantee of equal protection of the laws and the
provision forbidding discrimination by the government on the
basis of sexual orientation.  

Although the constitution also has a specific privacy provision,
Farlam stated a preference to base the ruling on the non-
discrimination provision.  Farlam commented that the non-
discrimination provisions of the constitution "clearly evince an
intention on the part of the framers of the Constitution to
expand the grounds of tolerance and understanding so that sexual
activity between consenting male adults is no longer subject to
criminal sanction.  I do not think that it is necessary to invoke
the constitutional entrenchment of the right to privacy to come to
this conclusion."

The bulk of Farlam's opinion is devoted to construing Sec. 33(1)
of the Interim Constitution (applicable to this case, which arose
before the new Constitution finally went into effect), which
provides that enumerated rights "may be limited by laws of
general application, provided that such limitation  . . .  shall be
permissible only to the extent that it is . . . reasonable; and .
. . justifiable in an open and democratic society based on
freedom and equality."  Here, the court had recourse to decisions
by the European Court of Human Rights striking down sodomy laws in
Ireland, and noted the voluntary repeal of penalties for
consenting adults in England and Canada.  The court also discussed
the U.S. decision in _Bowers v. Hardwick_ (1986), observing that
Justice Lewis F. Powell, Jr., the swing voter in support of the
Georgia sodomy law, later recanted his decision after retiring from
the court, and that Justice Antonin Scalia, dissenting in _Romer v.
Evans_ (1996), had argued that the majority's approach in _Romer_
was inconsistent with the holding in _Bowers_.  Consequently,
Farlam concluded that the dissent in _Bowers_ was more significant
for purposes of construing the South African constitution than was
the majority opinion.  Farlam concluded that continuing to apply
the sodomy law to consenting adult males in private (the South
African law, in common with other British Commonwealth nations
prior to law reform, applied only to males) was not justifiable in
light of developments in the other western democracies on this
subject.

This decision, which is subject to appeal to the constitutional
court by the government, effectively ends the offense of common
law consensual sodomy in the Western Cape Province of South Africa,
and may serve as persuasive precedent in other parts of South
Africa.  Given the pro-gay orientation of the present South African
government, and the strongly argued opinion, it seems likely that
the case, if decided by the constitutional court, would result in
the end of criminal penalties for consensual sodomy throughout
South Africa.  (It is interesting to note, by contrast, that
approximately 20 states in the U.S. still retain criminal penalties
for consensual sodomy between adults, in some cases as serious
felonies with long potential prison terms.)  

Full text of the decision is available on-line at the following
address:
<http://www.qrd.org/qrd/world/legal/state-v-gordon.kumpher>. 
A.S.L.

Other International Notes

As a special committee created by the Dutch parliament continues
to explore the issue of full legal marriage for same-sex couples,
an interim measure was passed setting up a partnership registration
system starting Jan. 1, 1998.  Registered partners in the
Netherlands, in common with those in the Scandinavian countries,
will have many of the same rights and responsibilities as married
couples, with certain exceptions pertaining to adoption of
children, artificial insemination and partnership retirement
benefits.  This according to a report in _De Gay Krant_ of July 18,
forwarded to the Internet by a member of a Dutch gay liberation
group.  

A new education minister in Thailand, Chingchai Mongkoltham, has
reversed the decision of the prior minister, and will lift the
ban on gay people being admitted to the teacher-training Rajabhat
Institute, according to an Aug. 17 article in the _Bangkok Post_.

The government of English Labour Prime Minister Tony Blair will
avoid a decision by the European Court on whether its
differential age of consent for gay men and non-gay men violates
European Community law by conforming the ages of consent to 16. 
When England repealed criminal penalties for consensual homosexual
sex in 1967, the age of consent was set at 21.  In 1994, Blair had
voted to lower the age to 16, but the ruling Conservatives were
willing to go no lower than 18 for gay men at that time. 
Associated Press, as reported in the _St. Louis Post Dispatch_ on
July 15.

The Employment Appeal Tribunal in the United Kingdom has ruled
that transsexuals who suffer discrimination or harassment at work
can file charges under the Sex Discrimination Act, according to a
UK Press Association Report forwarded by ILGA on July 15.

The Canadian province of British Columbia has amended its
domestic relations law to give same-sex couples the same privileges
and responsibilities for child support, access and custody as
unmarried heterosexual couples, having earlier amended its adoption
law to allow same-sex couples to adopt children on the same basis
as unmarried heterosexual couples (such adoptions being allowed in
the province).  The measure passed by an overwhelming margin
including members of all parties, including some of the most
conservative legislators.  _Vancouver Sun_, July 23; _Miami
Herald_, July 24.

The general assembly of the United Reformed Church in the United
Kingdom (England) voted 324-189 to allow "practicing homosexuals"
to become ministers in the church, upon the request of local
churches.  Religion News Service, as reported July 12 in the
_Arizona Republic_. A.S.L.

Conference Announcement

Keele University in North Staffordshire, United Kingdom, will
host a conference titled "Gender, Sexuality & Law" on June 19-21,
1998. This international conference will provide an opportunity for
participants to explore new developments in feminist legal
theory, queer legal theory and critical race theory as they bear on
the conference topics.  Reduced conference fees are available for
those who register before Jan. 31, 1998, and reduced rates are also
available for students or "unwaged participants" (is this the new
euphemism for unemployed people?).  Those interested in
participating should contact the Law Department, Keele
University, North Staffordshire, ST5 5BG, United Kingdom.  E-mail:
<GSL98@keele.ac.uk>.  A.S.L.

Contest Opportunity

The Gay & Lesbian Alliance Against Defamation is conducting an
essay contest in connection with Lesbian & Gay History Month. 
Participants should submit a typed essay of up to 750 words on
the following topic: "What does lesbian, gay, bisexual and
transgender history mean to you, and how do you envision that
history influencing the future of the movement?"  The winning essay
will be published in a variety of cooperating publications around
the country, and the winning participant will receive a round trip
ticket anywhere American Airlines flies in the continental U.S.,
Mexico, Canada, the Caribbean, Bermuda and the Bahamas (some
restrictions apply).  Submissions, which must be received by
September 22, should be mailed to: Bill Horn, LGHM Essay contest,
GLAAD, 150 W. 26 St., #503, NYC 10001, or e-mailed to:
<horn@glaad.org>.  A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 

N.J. High Court Clarifies Law on AIDS Phobia Claims

Holding that a claim for negligent infliction of emotional
distress due to fear of contracting AIDS may not be based on
misinformation, ignorance, and hysteria about the causes and
transmission of AIDS, the New Jersey Supreme Court unanimously
overturned an Appellate Division ruling that had allowed a
fear-of-AIDS claim if a jury found the claim to be "reasonable" and
based on "common knowledge" about AIDS.  _Williamson v. Waldman_,
1997 WL 403709 (July 21).  The supreme court held, in an opinion by
Justice Handler, contrarily, that persons claiming fear of AIDS
must educate themselves as to the causes and transmission of AIDS;
thus, to be actionable, a fear-of-AIDS claim must be not only
reasonable but also based on a higher degree of knowledge about
AIDS than "common knowledge."

While performing office cleaning duties, Karen Williamson was
pricked by a surgical knife left in a trash receptacle in an
examining room used by the three doctor defendants.  After
washing her hands, she went to a relative's home and discussed the
incident with an acquaintance who is a nurse.  The nurse advised
her to go to the emergency room immediately.  Although she claims
that she was at once alarmed over the potential of contracting
hepatitis and AIDS, Williamson went home and made an appointment
with her family doctor, whom she saw 4 days later.  He recommended
she be periodically tested for HIV over a period of 7 to 10 years. 
It was not clear whether he tested her at that time, but more than
a year later she tested negative; the result was the same in tests
taken 2 successive years thereafter.  After the second negative
result, Williamson's doctor advised her that her chances of
contracting HIV from the incident were "slim or remote."  Handler
cited no evidence that Williamson or the defendant doctors had come
in contact with a person known to be HIV+.

Williamson reported that after the incident she became depressed
and suffered "lifestyle changes": she refused to have a second
baby, which she and her husband had wanted, and thereafter she
and her husband engaged only in protected sexual relations.

The trial court granted the doctors summary judgment, finding
that Williamson did not demonstrate actual exposure to HIV. The
Appellate Division reversed and remanded for jury trial, holding
that Williamson could recover if she established that her fears
were reasonable.

Applying traditional negligence-related concepts of duty, breach,
and proximate causation, Justice Handler, writing for the court,
concluded that the trial court's standard based on objective
factors, which require actual HIV exposure or evidence of
medically sound channels of HIV transmission, was harsh and unfair.
Handler noted that any reasonable person, aware of the massive
AIDS-related informational campaign currently being waged by
federal, state and local officials, who is stuck by a used and
discarded medical instrument that may have come in contact with
blood, could reasonably develop a fear of contracting AIDS.

Handler likewise found the Appellate Division's reasonableness
standard unsatisfactory, because in permitting recovery for fear
of AIDS based merely on "common knowledge," it would allow claims
based on prevalent and persistent ignorance about AIDS and would
indirectly encourage prejudice and discrimination against people
living with HIV.  Agreeing with the Appellate Division that the
case presents a jury question, the court modified the Appellate
Division's holding and adopted an enhanced reasonableness
standard which requires that, in addition to showing genuine and
substantial emotional distress, persons seeking recovery for fear
of contracting AIDS exhibit knowledge about AIDS which is current,
accurate, and generally available to the public.

As to the applicable "window of anxiety," during which recovery
would be allowed and after which a reasonable and well-informed
person would no longer continue to experience emotional distress,
Handler cited evidence that most persons infected with HIV have
detectable antibodies within three months to a year after
exposure, leaving the precise determination of the window period
for the trial court. Handler adhered to that part of the trial
court's holding that Williamson's continued distress after the
window period was "idiosyncratic" and non-compensable.

Handler noted that the doctor Williamson consulted gave incorrect
information as to the period during which Williamson needed to be
tested, identifying it as 7 to 10 years, and later modifying it
to a period of "a year or two."  However, Handler concluded that
the additional emotional distress this erroneous information may
have caused Williamson was beyond the pale of generally accepted
medical advice and not reasonably foreseeable by other health-care
professionals, and thus not legally attributable to the negligence
of the defendant doctors. In a footnote, the court cautioned that
it was not endorsing causes of action for emotional distress
against doctors who proffer conservative advice to a
possibly-exposed patient.  A.J.L.

Massachusetts High Court Gives Strict Construction to
Incontestability Provision of Insurance Law

Answering questions certified by the U.S. Court of Appeals for
the 1st Circuit in litigation over a life insurance policy that had
been negotiated to a viatical settlement company by a person with
AIDS, the Massachusetts Supreme Judicial Court unanimously held in
_Protective Life Ins. Co. v. Sullivan_, 1997 WL 420790 (July 29),
that there is no "fraud" exception under the state insurance law's
incontestability provisions, and that the insured's failure to
disclose his HIV status did not equitably toll the incontestability
period.

Daniel Sullivan tested HIV+ in November 1990, and purchased a
$100,000 life insurance policy from Protective Life in 1991. 
Although he was then taking AZT and under regular medical
supervision, Sullivan omitted this information from his insurance
application form, which specifically requested information about
medical treatment.  Protective Life issued the policy on Nov. 8,
1991, but did not require any medical examination, even though
its application form included consent for one to be conducted.  The
policy form, which had been approved by the Massachusetts
Insurance Department, provided that the policy was incontestable
after two years except for fraud by the applicant.

By June 1992, Sullivan's health had deteriorated to full-blown
AIDS, he stopped working, and he applied for disability benefits
under a policy with another insurance company.  On Nov. 8, 1993,
just after the second anniversary of his Protective Life policy,
Sullivan applied to Protective Life for the waiver of premiums
due to disability available under the policy.  Meanwhile, in
October 1993, Sullivan sold his right to benefits under the policy
to Dignity, a viatical settlement company, for $73,000.  After
figuring the whole thing out and realizing it had been scammed,
Protective Life filed suit in U.S. District Court against Sullivan
and Dignity, seeking a declaration that the policy was rescinded
because of Sullivan's fraud.  The District Court, finding a fraud
exception to the incontestability feature of the policy, ruled in
favor of the plaintiffs, and defendants appealed.

The Court of Appeals certified to the Supreme Judicial Court two
questions of state law: Is the policy's fraud exception
enforceable, considering that the insurance commissioner had
approved Protective Life's policy form which specifically
incorporated a fraud exception to the incontestability clause? 
Was incontestability equitably tolled by Sullivan's conduct?  The
court answered both questions in the negative, in an opinion by
Justice Marshall.

Marshall noted that one provision of Massachusetts law provides
that every life insurance policy must have a provision making the
policy incontestable when it has been in effect for two years,
except for non-payment of premiums, military service in time of
war, or certain claims based on accidental death.  The court
found that this provision, mentioning three exceptions to
incontestability, clearly provided for no other exceptions,
observing that the counterpart provision governing health
insurance policies does specifically authorize fraud exceptions to
incontestability clauses, thus showing that the legislature
specifically meant to allow for fraud exceptions in one kind of
policy but not the other.  

Protective Life sought to invoke another provision of the
Massachusetts insurance law, which predates the incontestability
provision, providing that insurance companies shall generally be
bound by the factual statements contained in applications when
they do not undertake medical exams of applicants, but allowing
insurance companies to challenge fraudulent representations in
policy applications.  The court found this unavailing, noting
that the incontestability provision was a later enactment. 
Logically, the earlier provision is now limited to situations where
the incontestability bar does not apply.

Turning to the equitable tolling issue, the court found that
Protective Life was not in a good position to demand equitable
relief from the court.  When Sullivan applied for the insurance,
he signed an application form that authorized Protective Life to
conduct a medical examination, but it issued the policy without
doing so.  (At the time, many insurance companies did not carry
out examinations unless the face value of a policy was above
$100,000.)  Justice Marshall noted that through reasonable
diligence Protective Life could have discovered the truth about
Sullivan's HIV-status at any time prior to the expiration of the
incontestability period, so there was no basis to bail out the
insurer for failing to act prudently.  

Since the state court's construction of Massachusetts law is
authoritative, it seems likely that the U.S. Court of Appeals
will reverse the district court and order dismissal of the
underlying case.  The case attracted considerable amicus attention,
drawing briefs from Cancer Care, Inc., the AIDS Law Project of Gay
& Lesbian Advocates & Defenders, the American Council of Life
Insurance, and the Massachusetts Attorney General's Office.  A.S.L.

Connecticut Supreme Court Holds Exposure to HIV is Compensable
Injury Under Workers Compensation Law

In a ruling of first impression, the Connecticut Supreme Court
construed the state's workers compensation law to require the
employer to assume medical expenses incident to employee exposure
to HIV.  _Doe v. City of Stamford_, 1997 WL 441362 (July 22).

John Doe, a Stamford police officer, was exposed to HIV in
February, 1993, "when medical pads contaminated with body fluids
of a criminal suspect came into contact with an open wound on the
claimant's thumb."  When the suspect revealed that he was HIV+,
Doe went to Stamford Hospital to have the wound on his thumb
treated, and subsequently submitted to HIV testing and monitoring. 
He remains HIV-negative.  A few months later, Doe was exposed to
tuberculosis "when he came into repeated, close physical contact
with another criminal suspect who, it was later learned, suffered
from an active case of that disease."  Both of these exposure
incidents occurred in the line of duty.  Doe subsequently tested
positive for exposure to tuberculosis, but did not develop an
infection.  Doe's doctor recommended follow-up testing for HIV. 
The city paid for Doe's initial lab tests for exposure, but refused
to pay any subsequent medical bills for monitoring and follow-up,
claiming that there was no compensable injury under the workers
compensation law.  The commissioner of compensation agreed with the
city, as did the compensation review board.

Writing for the court, Justice Peters found that the agency had
adopted too narrow a definition of "compensable injury" to
comport with the purpose of the statute.  "Although actual
infection may be necessary to establish an `occupational disease'
as that term is defined in sec. 31-275(15), the definition of
`injury' in sec. 31-275(16)(A) does not require a similar
pathological manifestation," wrote Peters.  "Indeed, it would be
contrary to the humanitarian and remedial purpose of the act to
infer that the legislature intended that an employee who sustains
actual exposure to a potentially fatal infectious disease must
await the onset of the disease before he can recover expenses
associated with necessary, and possibly lifesaving, medical
intervention."  

The court also rejected the city's attempt to distinguish this
kind of exposure from a puncture wound exposure, which apparently
the city believed would come within the statutory definition
imposing responsibility for compensation.  Since the city had
stipulated that Doe's contacts with contagious individuals were
sufficient to constitute "exposures" to infectious agents, it could
not logically argue that the lack of a puncture wound made this
less of an "injury."  The court was equally dismissive of the
city's argument that Doe had no claim until he suffered some form
of incapacitation or loss of income; the court pointed out that
this was relevant to a disability claim but not a claim for
compensation for medical expenses.

The case was remanded to the compensation commissioner for
consistent proceedings on Doe's claims.  A.S.L.

9th Circuit Denies Summary Judgment in AIDS Insurance Rescission
Litigation

The U.S. Court of Appeals for the 9th Circuit held that summary
judgment was inappropriate against the beneficiaries of an
insurance policy on the issue of whether the insurance company
could rescind the policy based on the insured's alleged
concealment of material information, namely his HIV status. 
_Preston v. Minnesota Mut. Life Ins. Co._, 1997 W.L. 381941 (Jul.
9). 

Paul Preston purchased mortgage life insurance on his mother's
home in March 1992.  In July 1992, he learned he was HIV+ and later
submitted a disability claim to the insurance company under
another policy.  In September 1993, the insurance company learned
that Preston had seen a doctor in 1990, which he had not indicated
on his mortgage insurance application.  Preston died in October
1993. 

Minnesota Mutual continued its investigation and rescinded the
policy only after Preston's death.  Given these circumstances the
court held that there was a material issue of fact as to whether
Preston's nondisclosure of the 1990 doctor visit was knowingly
concealed based on Preston not being able to respond to the
company's allegations, and on testimony from the doctor that he
did not recall Preston and that he would only have told Preston
that his blood tests were slightly abnormal.  The court also held
that Preston's mother (for whom he purchased the insurance) had
standing because, although she was not an express beneficiary of
the insurance contract, it was made expressly for her benefit. 
D.W.

6th Circuit Rules that Title III of ADA is Inapplicable to
Disability Insurance Claim

Rejecting a decision by a 3-judge panel, the U.S. Court of
Appeals for the 6th Circuit, en banc, voted 8-5 to affirm the
dismissal of a discrimination cause of action against an insurance
company under Title III of the Americans With Disabilities Act
(ADA).  _Parker v. Metropolitan Life Ins. Co._, 1997 WL 431851
(Aug. 1).  In so doing, the court explicitly disagreed with the
approach of the 1st Circuit in _Carparts Distribution Center v.
Automotive Wholesaler's Association_, 37 F.3d 12 (1994). 
_Carparts_ is widely-cited as an important precedent protecting
people with AIDS from insurance discrimination under the ADA.

Prior to the passage of the ADA, attempts by individual employees
complaining about discrimination in their insurance benefits to
seek relief were stymied by the failure of the federal Employee
Retirement Income Security Act (ERISA) to expressly forbid
discrimination in the content of benefits plans based on
particular disabilities or conditions, and by ERISA's preemption
provision, which prevented states and localities from providing a
cause of action for such discrimination.  After passage of the ADA,
which specifically forbids discrimination in employee benefits
plans under Title I, and which subjects insurance companies to
non-discrimination requirements as "places of public accommodation"
under Title III, there was speculation that discriminatory
provisions in employee insurance benefits could now be attacked
under the ADA, either by actions against the employer under Title
I or actions against insurance companies under Title III.  In
_Carparts_, an HIV+ auto dealer who obtained his health insurance
through group coverage from the auto wholesaler's association,
brought suit under the ADA attacking an AIDS-cap adopted by the
group plan.  The 1st Circuit held that suit could be brought under
Title III, analogizing the association to an "insurance office," a
category of public accommodation listed in Title III, and that a
discrimination claim could be based on discriminatory practices in
the _content_ of insurance policies.  Several district courts have
followed _Carparts_, as did the 3-judge panel in this case.

Writing for the majority of the en banc circuit court, Judge
Kennedy found that the public accommodations provision does not
extend to the content of insurance policies.  "A benefit plan
offered by an employer is not a good offered by a place of public
accommodation," wrote Kennedy. "Parker did not access her policy
from MetLife's insurance office.  Rather, she obtained her
benefits through her employer.  There is, thus, no nexus between
the disparity in benefits and the services which MetLife offers to
the public from its insurance office."  The court held that if she
had been denied physical access to the insurance company's place of
business, she would have a claim under Title III, but not
otherwise.  

"Furthermore," wrote Kennedy, "Title III does not govern the
content of a long-term disability policy offered by an employer. 
The applicable regulations clearly set forth that Title III
regulates the availability of the goods and services the place of
public accommodation offers as opposed to the contents of goods
and services offered by the public accommodation."  The court also
insisted that the ADA, in general, "prohibits only discrimination
between the disabled and non-disabled."  In a portion of the
opinion that was arguably unnecessary and egregiously narrows the
scope of ADA protection, the court opined that "the ADA does not
mandate equality between individuals with different disabilities." 

Thus, for example, an employer capping AIDS-related benefits at a
lower level than benefits for other comparably expensive illnesses
would not be in violation of the ADA, provided that all employees
are afforded the same package of benefits, regardless of their
disability.  This directly contradicts the position that the EEOC
has been taking in bringing suit against employers who have placed
tight caps on AIDS-related benefits for their employees.

There were two dissenting opinions, by Judges Boyce and Merritt,
who were joined by three other members of the court.  Both
dissents emphasized the bizarre result this decision produces: As
Judge Boyce summarized Judge Merritt's argument, "Under the
majority view, individuals who purchase insurance through an
insurance officer are entitled to Title III protections while those
who purchase insurance through their employers receive no Title III
protections."  Merritt argued that this result "flies in the face
of sec. 501(c) of the Act," which provides insurance companies with
a "safe harbor" for certain practices that are consistent with
sound actuarial practice; why would there be a need for a "safe
harbor" if the substantive provisions of ADA did not apply to the
sale of insurance?

The plaintiff had also brought a Title I claim against her
employer, but was held not to have standing to bring such a claim
concerning disability insurance benefits; if she was eligible for
the benefits, the court found, she could not be a "qualified
person with a disability" because she would be unable to perform
the work in question (as was indeed the case in this situation). 
A.S.L.

Michigan Appeals Court Affirms Conviction of HIV+ Person For
Engaging in Sex Without Disclosure

The Michigan Court of Appeals affirmed the conviction of a
legally incapacitated woman with HIV under a state statute
criminalizing sexual acts by persons with HIV who do not inform
their partners of their status.  _People v. Jensen_, 564 N.W.2d 192
(Mich. App. 1997).  

Brenda Jensen, a legally incapacitated person, had sex without
informing her partner that she was HIV+.  When she boasted to her
legal guardian and to the staff of her group home about having
sex, the guardian contacted the police.  Jensen was subsequently
charged with violating the criminal statute.  On appeal, Jensen
made three arguments:  that the trial court had inappropriately
excluded exculpatory hearsay testimony; that there was insufficient
evidence to support Jensen's conviction absent inadmissible blood
test evidence; and that Jensen's 32 month sentence was
disproportionate to her crime. 

The Court of Appeals rejected these arguments and affirmed
Jensen's conviction.  Jensen's lawyers at trial wished to introduce
hearsay evidence from Jensen's roommate that went to the issue of
duress; the roommate would have testified that Jensen told her she
had had sex because she was afraid her partner might kill her and
that he would not leave the room until she had sex with him.  The
hearsay was not admissible as an admission by a party because the
statement was not offered against the person making it.  The
statement was not admissible as an excited utterance because the
court was not convinced that it was made under the stress or
excitement of the event and because it was made a day after the
event took place.  Nor was the hearsay statement admissible as a
statement against interest because it was largely exculpatory (and
thus not completely contrary to Jensen's interest), and because it
was uncorroborated and thus lacked trustworthiness.  

Turning to the question of improperly admitted blood test
evidence, the decision is silent as to why the blood test evidence
was admitted and does not clearly explain Jensen's argument for why
it constituted error.  Apparently Jensen's lawyer attempted to
fashion an argument that she could not have "known" her HIV status
as the statute required because HIV is "not specifically defined by
a blood-count variable."  Unconvinced, the court agreed that the
blood test evidence was irrelevant and inadmissible, but in light
of other evidence that the defendant knew about her HIV status, was
harmless error which did not with any reasonable probability affect
the trial's outcome. 

Finally, the court affirmed Jensen's sentence in light of her
"life-threatening behavior."  The court also declined to consider
Jensen's argument that her conviction was unconstitutional on
privacy and free speech grounds because this objection had not
been properly preserved and because the court was not convinced
that it would affect the case's outcome.  The defendant's mental
incapacity goes virtually unmentioned, despite the fact that it may
likely have played a part in her getting swept into the  sexual
situation in which she found herself, in her subsequent boasting.
and in her conviction.  D.W.

Louisiana Appeals Court Upholds Admission of DNA-Test Evidence in
"Attempted Murder by HIV Injection" Case

An attempted murder charge against a doctor gave rise to a
fascinating ruling by the Court of Appeal of Louisiana, 3rd
Circuit, on the question whether DNA testing of two HIV-infected
blood samples may be introduced as evidence.  _State v. Schmidt_,
No. 97-249, 1997 WL 435026 (July 29).

Richard Schmidt, a gastroenterologist in Lafayette, Louisiana,
engaged in an adulterous affair with Janice Trahan, a married
patient, over a period of about ten years.  During the affair,
Ms. Trahan divorced her husband and secured a promise from Schmidt
that he would divorce his wife and marry Trahan.  When Schmidt
failed to divorce his wife, Trahan began dating other men.  Schmidt
responded by separating from his wife, but shortly after the
separation, when Trahan tried to phone Schmidt on his birthday, she
discovered that he had spent the night with his wife, and she
angrily broke off the relationship.  However, she continued to be
his patient, and she was in process of receiving a series of
vitamin B12 injections.  She complained of feeling ill after
receiving such an injection on Aug. 4, 1994, and her health
deteriorated.  On January 3, 1995, she underwent testing with
another doctor and learned that she was positive for both HIV and
hepatitis C.  Suspecting foul play, she went to the district
attorney and claimed she had been injected with these infectious
agents by Dr. Schmidt.  The grand jury indicted Schmidt for
attempted second degree murder.  

During pre-trial wrangling, the parties battled over two
evidentiary rulings that are the subject of this appellate
decision.  One concerned evidence of Dr. Schmidt's procedure in
drawing blood from two of his patients (one infected with
hepatitis C, the other with HIV) on Aug. 2 and Aug. 4, compared to
his normal procedures for documenting such activities.  The other
concerned the state's desire to introduce expert testimony based on
DNA testing of blood drawn from Trahan and from Dr. Schmidt's
HIV-positive patient, the essence of which was that the strains of
HIV in the two samples were very similar in pertinent respects, and
dissimilar from other HIV-strains from the Lafayette area tested as
a control group.  The trial judge found both items of testimony to
be admissible, and Schmidt took an interlocutory appeal to test
this ruling prior to trial.

In a unanimous decision by Judge Peters, the court of appeal
upheld the trial court's evidentiary rulings.  The opinion provides
a detailed look at the procedure by which HIV strains are tested to
determine similarity, and reflected a real battle of experts, as
five highly qualified experts (three for the state and two for the
defense) presented detailed explanations and critiques of the
methodology being used by the state's experts.  The ruling called
for an application of the Supreme Court's 1993 decision in _Daubert
v. Merrell Dow Pharmaceuticals_, 509 U.S. 579, concerning the
standards to be applied by trial courts in determining the
admissability of expert opinions based on new scientific
procedures, as the relevant Louisiana evidence code provisions are
identical to the federal rule (Fed. R. Evid. 702) construed in
_Daubert_.  The court undertook a meticulous review of the hearing
record, and concluded that the trial court had correctly applied
_Daubert_ to allow admission of the expert testimony.  Peters also
endorsed the trial judge's rejection of Schmidt's argument that the
trial judge should hear testimony about allegations of flaws in the
way the DNA testing procedures were carried out.  The judge
determined that this would invade the province of the jury, which
was the appropriate fact-finder on that issue.  A.S.L.

Louisiana Court of Appeals Rejects Downward Sentencing Departure
for HIV+ Drug Offender

Rejecting a trial judge's apparent consideration of a defendant's
HIV-status in departing downward from the sentence mandated by
law, the Louisiana Court of Appeals, 4th Circuit, remanded for
resentencing in the case of Eddie D. Lee, an HIV+ man convicted
of possession of cocaine.  _State v. Lee_, 1997 WL 461455 (Aug.
13).

The appeals court also rejected Lee's appeal of his conviction,
based on his being forced to wear prison clothes in court during
the trial, and for ineffective assistance of counsel.

Eddie D. Lee was sentenced under the state's Habitual Offender
Law, which required him to be sentenced to a mandatory life
sentence because it was his fourth conviction.  Although Lee was
charged with possession of cocaine with the intent to distribute,
the jury convicted him on a lesser charge of simple possession. 
The court initially sentenced to five years of hard labor; after
the State objected, Judge Cannizzaro changed the sentence to
thirteen years imprisonment.      

The State appealed the sentence, claiming that Cannizzaro did not
sufficiently explain how Lee's HIV-status warranted an exception to
the mandated life sentence.  The Appeals Court ruled unanimously,
in an opinion by Judge Plotkin, that the trial court is "required
to explain in detail the thirteen-year sentence imposed in
derogation of the mandated sentence."

Citing _State v. Dorthey_, 623 So.2d 1276 (La. 1993), the Appeals
Court ruled that for the life sentence to be an unconstitutionally
excessive sentence, it must be found that it is ". . . grossly out
of proportion to the severity of the crime and does no more than
impose substantial pain and suffering."  The court found that
Cannizzaro had "mechanically" restated the criteria for an
exception, Lee's HIV status, and the jury's conviction on a lesser
charge than that brought by the state. Sentencing Lee to a life
term, Cannizzaro had ruled, would be "a needless purposeful
imposition of pain and suffering."  Plotkin commented that
Cannizzaro's reasoning was "subjective and unsubstantiated."    

Citing Lee's "long and serious criminal record," the appeals
court did not consider his HIV status to be a mitigating factor for
sentencing purposes.  The statute does not specifically recognize
HIV-status as a mitigating factor.  Plotkin also noted the
existence of medical facilities and procedures in the prison
system, asserting that the prisons had "reasonable and
compassionate" policies in caring for HIV+ prisoners.

Recent federal rulings and New York rulings have held that an
HIV+ status is not valid as a sole criterion for deviating from
sentencing guidelines.  See _People v. A.F._, NYLJ, 3/25/97,
p.29, col.4 (N.Y.Sup.Ct., King's County), _Montanez-Anaya v. U.S._,
116 F.3d 464 (1st Cir. 1997), and _U.S. v. Smith_, 1997 WL 346045
(4th Cir.).  D.R.S.

6th Circuit Affirms Dismissal of Wrongful Death Claim as Time-
Barred

Wrongful death claims by Lawrence Gatti, Jr., based on the AIDS-
related deaths of both of his parents, have been finally
dismissed as time-barred in an unpublished per curiam disposition
by the U.S. Court of Appeals for the 6th Circuit.  _Gatti v.
American Red Cross_, 1997 WL 447634 (Aug. 6).  Tennessee's one-year
statute of limitations applies to this case.  Gatti's suit was
filed on November 16, 1994, two years after his father's death and
three years after his mother's death.  The suit was sparked by
Gatti reading an article in a local newspaper on May 15, 1994,
titled "Blood Banks Knew of AIDS Risks in '83."  

The Gatti's attributed their AIDS to an infusion of a Red Cross-
supplied blood product in 1984 during a hemorrhage suffered by
Mr. Gatti, Sr., a mild hemophiliac.  Several months after the
infusion, the Red Cross sent a letter to its regional medical
directors, recalling certain lots of Antihemophiliac Factor because
a donor whose blood had been used for those lots had been diagnosed
with AIDS.  (This was before the licensing of HIV-antibody tests
that occurred in March 1985; at that time, the only way to know
that particular blood products were tainted was upon the ARC or
AIDS diagnosis of a blood donor.)  The regional director sent a
copy of the recall letter to Mr. Gatti's doctor, who contacted the
Gatti's and sent them a copy.  Gatti had bloodwork done at that
time, which showed abnormal T-cell ratios, and in 1987 he tested
positive for HIV.  Mrs. Gatti also tested positive, and actually
developed full-blown AIDS and died before Mr. Gatti.  The Gatti's
shared all this information with their son as it was happening.  He
was appointed administrator of each of their estates shortly after
their deaths.

The court rejected his argument that he didn't realize he had a
lawsuit until reading the 1994 newspaper article, finding that
the potential for filing suit for wrongful death arose immediately
upon the death of each parent and that reasonable diligence by
Gatti, Jr., would have made this apparent within the one-year
statute of limitations.  The court also rejected the argument that
the limitation should be tolled by the Red Cross's conduct,
observing that the Red Cross had concealed nothing in this case,
having notified the Gatti's promptly about the recall and the
reason for it.  A.S.L.

Court of Veterans Appeals Reverses Negative Determination on HIV-
Related Service Disability Claim

The U.S. Court of Veterans Appeals ruled in _Saathoff v. Gober_,
1997 WL 395343 (July 15), that the Board of Veterans Appeals
(BVA) erred when it found that Michael Saathoff's HIV-infection
could not be service-connected, and thus denied him benefits both
for his HIV-infection and for related psychological problems.

Saathoff served on active duty in the Navy from December 1988 to
December 1989.  After completing the Basic Hospital Corps School
in March 1989, he worked as a hospital corpsman.  As part of his
routine HIV testing in the service, he tested negative in September
1989.  He also tested negative in February 1990, a few months after
his discharge, but tested positive for HIV in September 1990. 
Saathoff hypothesized that he acquired HIV through a needle-stick
injury incurred during his hospital work, and presented expert
testimony at his benefits claim hearing that it may take six months
or more after an exposure to HIV for somebody to test positive on
the standard antibody screening test.  Nonetheless, the BVA held
that since he had tested negative after his separation from the
service, the later positive test could not be service-related.

The Court of Veterans Appeals, in an opinion by Chief Judge
Nebeker, found that Saathoff had sustained his burden of showing
that his claim of a service-connected HIV infection was
plausible, based on the expert testimony he offered about how long
it may take after exposure for an infected individual to develop
sufficient antibodies to trigger the screening test.  Also noting
the expert testimony attributing his psychological problems to his
HIV-status, the court found that a plausible service-connection had
been demonstrated for both claims, and ordered the case remanded
for consistent readjudication.  A.S.L.

ADA and Emotional Distress Claims Do Not Survive Death of
Plaintiff in Utah

Construing Utah's uniquely-worded survival statute, U.S. District
Judge Sams ruled that claims for violation of the Americans With
Disabilities Act brought by a person with AIDS against his former
employer do not survive the plaintiff's death.  _Allred v.
Solaray, Inc._, 1997 WL 451175 (July 21).

The opinion does not discuss the underlying facts of the case,
merely listing the legal claims (which also included violation of
the Utah Anti-Discrimination Act and a supplemental state law
tort claim for intentional infliction of emotional distress), and
indicating that Allred was seeking reinstatement, backpay, and
compensatory and punitive damages.  Allred died from AIDS on June
1, 1996, and the representative of his estate petitioned to be
substituted as plaintiff, while the defendants moved for summary
judgment, asserting that the discrimination claims did not
survive Allred's death and that on the emotional distress claim,
his personal representative would be entitled to "receive no more
than the out-of-pocket expenses Mr. Allred incurred as a direct and
proximate result of their allegedly unlawful conduct."

Because the ADA does not expressly address the issue of survival
of claims, the court looks to the law of the state where the claims
arose.  Utah's survival statute, Utah Code Ann. sec.
78-11-12(1)(a), provides: "Causes of action arising out of personal
injury to the person. . . do not abate upon the death of the . . .
injured person.  The . . . personal representatives or heirs of the
person who died have a cause of action against the wrongdoer. . .
for special and general damages. . ."  Sams found that this
provision, which has not been authoritatively construed by the Utah
Supreme Court in the context of federal statutory discrimination
claims, should be interpreted to limit survival actions to claims
involving physical injuries to the deceased.  Although the term
"personal injury" might be broadly construed to include civil
rights violations, emotional distress and the like, the court found
that the longer phrase "personal injury to the person" suggested a
limitation to physical injuries to the body of the plaintiff.  

"The court has not found any published decision in which claims,
other than those for physical injuries, have been held to survive
under Utah's statute," wrote Sams.  However, Sams also noted that
the statute was most recently amended in 1991, and in fact there
are no published decisions interpreting the statute in its
current formulation.  But Sams stated that "the court believes
Utah's survival statute should be construed to permit survival of
claims for `personal injury to the person,' as opposed to claims
for injury to his rights, reputation or property," and thus that an
ADA claim would not survive the death of the plaintiff.

There is absolutely no discussion by Sams of how this
construction of the statute in this kind of case serves to fulfill
the policy of the ADA to deter and remedy disability
discrimination.  Obviously, such an interpretation severely
undermines the operation of the statute, since employers and other
business people subject to the ADA's requirements could well reason
that there is little risk in discriminating against a person who
has a potentially fatal condition, in light of the frequent delays
involved in the litigation process and the likelihood that a
potential plaintiff will die before a final judgment can be
rendered on his or her claim.

Having concluded that the ADA claim did not survive Allred's
death, the court found itself without jurisdiction to hear the
supplemental state law discrimination and tort claims, and
granted the motion for summary judgment and denied the personal
representative's motion to be substituted as plaintiff.  A.S.L.

Federal Court Dismisses HIV+ Patient's Treatment Discrimination
Claim Under ADA

Holding that a doctor's claimed reason for refusing treatment to
an HIV+ patient -- that the treatment posed a significant risk to
the patient's health -- was "reasonable as a matter of law," and
that the doctor could not be penalized for exercising "caution" in
his medical judgment, the U.S. District Court, Northern District of
Georgia, found no fact issue and granted the doctor summary
judgment in a discrimination suit brought under the Americans With
Disabilities Act (ADA), 42 U.S.C. sec. 12101, and a Georgia damage
enabling statute. _Jairath v. Dyer_, 1997 WL 429060 (July 24).

Vimal Jairath went to Dr. Wallace Dyer for a Gore-Tex implant
procedure, a form of cosmetic surgery. When Dyer learned Jairath
was HIV+, he declined to treat him. Jairath immediately went to
another doctor who performed the procedure. The court did not
indicate whether Dyer gave Jairath any reason at the time of the
refusal. 

On deposition, Jairath testified he did not intend to seek
further medical treatment from Dyer. Dyer testified that the risk
of infection from the procedure was about 35% for HIV+ persons
which was "way too high. . . to risk," and cited a medical article
in support of his position. On Jairath's behalf, 2 doctors
testified that a patient's seropositivity does not automatically
make him unsuitable for the operation and that the proper course is
to conduct a thorough medical examination to determine the
patient's specific immune status. District Judge Carnes found that
there was medical support for both views; there is "a range of
legally acceptable bases upon which a doctor can predicate" a
refusal to perform the procedure in question.

Jairath sued under a combined theory based on the Georgia statute
(O.C.G.A. sec. 51-1-6) and the ADA. Because the state and federal
claims were interdependent, Jairath had to succeed on both to
prevail. Discussing the state claim first, Carnes concluded that
the Georgia statute, which did not itself create a substantive
right, allowed damage recovery upon showing a breach of a
statutorily-created duty, but only if the statute creating the
duty did not provide the injured party with a cause of action.
Carnes ruled that the ADA, the duty-creating statute invoked by
Jairath, allows a private litigant injunctive but not monetary
relief. Carnes held that since the ADA afforded Jairath a cause of
action, he was precluded from invoking the Georgia statute and was
limited to relief under the ADA.

Addressing the ADA claim, Carnes applied a 3-part analysis,
requiring a showing that: a) Jairath suffered an injury in fact,
b) his injury was caused by Dyer's conduct, and c) his injury is
capable of being redressed by a favorable court ruling. Carnes
found Jairath suffered injury and that it was caused by Dyer's
conduct but that a favorable ruling would not redress the injury
because Jairath's ending of his relationship with Dyer ended any
chance Dyer could cause him future harm, precluding injunctive
relief. In a holding on standing remarkably akin to finding the
ADA afforded Jaraith no cause of action, Carnes stated that
Jaraith's injury "cannot be redressed through the means available
to the court."

Turning to Dyer's liability for ADA disability discrimination,
Carnes held that, to establish a prima facie case Jairath had to
show that: a) he has a disability, b) Dyer's office is a place of
public accommodation, c) Jairath was denied full and equal
medical treatment because of his disability, and d) under the
circumstances, the denial gave rise to an inference that it was
based solely on the disability. Carnes found that Jairath
established all these elements, and thus a prima facie case of
discrimination.  However, in asserting that the proposed
treatment was a direct threat to Jairath's health, Dyer raised a
legitimate nondiscriminatory reason for his treatment refusal,
which Jairath failed to rebut, resulting in the conclusion that
Jairath raised no fact issue. 
 
Two fact issues the court did not address and as to which Carnes
accepted as fact Dyer's assertions, are: 1) whether risk to
Jairath's health was the actual reason for Dyer's treatment
refusal, and 2) whether Dyer had performed less risky cosmetic
surgery upon other HIV+ patients. In what may have been intended
as a revealing footnote, Carnes cited a case holding that a patient
who failed to contest a doctor's assertion on deposition was bound
by it, leaving a suggestion that in Carnes' view that may have
happened here.  A.J.L.

Connecticut Court Rejects Habeas Petition From HIV+ Convicted
Murderer Based on Conduct of His 1985 Trial

In _Mercer v. Warden_, 1997 WL 428685, Rockville County,
Connecticut, Superior Court Judge Bishop denied a habeas corpus
petition by Eugene Mercer, an HIV+ man serving a 45-year sentence
for the December 1984 murder of Susan Larson.  

Mercer was convicted in a jury trial, at which the state provided
strong evidence from which the jury could have concluded that
Mercer shot Larson in the head in order to steal her car.  Mercer
was apprehended in the stolen car later on the date of the
murder.  Following his arrest, he was held at Bridgeport
Correctional Facility.  In April 1985, feeling sick, Mercer
requested medical attention, at which time he was diagnosed with
AIDS-Related Complex and subsequently tested positive for HIV.  

The subsequent trial in September 1985 was one of the earliest
ones in the nation at which the HIV-status of a defendant was a
serious issue.  The trial judge met with the prosecutor and
Mercer's assigned public defender to discuss the problem, as county
sheriffs were afraid to transport Mercer to the courtroom. 
Ultimately, the court held a hearing, open to the public, to
receive expert testimony about whether Mercer's presence in court
would endanger any of the other participants in the trial.  This
proceeding received extensive local newspaper coverage, including
speculation about isolation booths and remote television
transmissions.  The medical director of the jail testified,
correctly, that there was no basis for any special precautions and
that the jurors and the lawyers were in no danger of catching AIDS
from being in the same room with Mercer.  

Ultimately, the trial judge ordered the trial to proceed without
any special precautions, although the court officers and sheriffs
wore latex gloves while transporting Mercer to and from the
courtroom.  During jury selection, the court and lawyers raised
AIDS issues with jurors, jurors were excused who had any concerns
about AIDS, and in closing remarks at trial, the prosecutor told
the jury that Mercer's medical condition, and possible sympathy
for him, should not influence their decision-making.  The rationale
given by the attorneys for all this discussion with the jurors was
that the newspaper coverage and the gossip about AIDS in the
courthouse were such that it was likely jurors would have heard
about it in connection with this case, so it could not be
ignored. Mercer's public defender raised no objections to the open
pre-trial hearing, the latex gloves, the introduction of AIDS
issues into jury selection (indeed, he participated in that), or
the prosecutor's closing remarks.

Mercer's conviction was upheld by the Connecticut Supreme Court
in 1988.  At that time, the supreme court considered many of the
issues raised in this petition, and found on balance that the
trial had been fair.  The present habeas petition, one of several
filed and amended from time to time by Mercer, seemed to be based
largely on newly-uncovered evidence obtained from two jurors and
some court monitors.  Reading Judge Bishop's detailed
reconstruction of the events of the trial is fascinating, given the
look back at judicial and public attitudes about AIDS during that
nervous summer of 1985, the first summer that the HIV test was
available, the summer of Rock Hudson, the summer of the first real
wave of AIDS concern in the national media as reflected in a
Newsweek cover story that was published the week after the trial
court's open hearing on the AIDS issues in the trial.

Judge Bishop faulted the performance of the public defender in
failing to raise some objections, and the performance of the
trial judge in allowing the latex gloves and holding an open
hearing on the dangers of AIDS.  Bishop also found that the
statements made to the jury panels included errors and irrelevant
information.  The attorneys were faulted for speaking with the
press about these issues during the pendency of the case; they were
all quoted extensively in the newspaper reports entered into
evidence during the habeas hearing.  Bishop also found, based on
expert testimony introduced at the habeas hearing, that labeling
Mercer as a person with AIDS in the summer of 1985 did place him in
a category regarded with suspicion and stigmatized by the general
public.  Bishop concluded that "there were errors of a professional
magnitude committed by counsel" during the trial.  

However, weighing in the balance the very strong case against
Mercer, Bishop found that whatever errors were made did not rise
to the level of violating his due process rights, or his right to
effective representation of counsel, since they were unlikely to
have affected the outcome to his prejudice.  Indeed, the evidence
showed that Mercer's condition may have even generated sympathy
among some of the jurors.  Bishop denied the writ, finding that
it was unlikely the trial would have turned out differently if the
various errors of judge and counsel had not been made.  A.S.L.

Florida Appeals Court Finds Blood Bank Not a "Health Care
Provider" Under Medical Malpractice Statute

The Florida District Court of Appeal, 4th Dist., ruled July 30
that a blood bank is not a "health care provider" under the state's
Medical Malpractice Reform Act.  Consequently, plaintiffs in a suit
alleging that the blood bank negligently delayed notifying a
patient that her prior transfusion may have been HIV-tainted did
not have to comply with the special filing and limitations
provisions of the Reform Act.  _Community Blood Centers of South
Florida, Inc. v. Damiano_, 1997 WL 430003.

Francine Damiano received a transfusion in 1986 after giving
birth to twins.  In 1990, she was diagnosed with AIDS.  She and her
husband Alfred filed suit in 1992 against her doctor and the
blood bank.  The plaintiffs complied with the notice and limitation
requirements of the Reform Act with respect to the doctor, but not
with respect to the blood bank.  The claim against the blood bank
was based solely on its failure to notify Francine that she had
received tainted blood; Alfred, who is also HIV+, attributes his
infection to sexual relations with his wife during the period
between her transfusion and her AIDS diagnosis, and claims it might
have been prevented had the blood bank notified Francine that she
had been exposed to HIV-tainted blood.  Four years after the suit
was filed, as pretrial discovery continued, the blood bank filed a
motion to dismiss on limitations grounds, citing the Reform Act. 
Had the blood bank raised this defense quickly after filing of the
suit, the Damianos could have taken steps to comply with the Reform
Act before expiration of its limitations period.  The trial court
denied the blood bank's motion.  the blood bank petitioned for a
writ of certiorari to the district court of appeal.

The court, in a per curiam opinion, denied the blood bank's
petition, finding extensive evidence in past Florida court
decisions as well as the wording and history of the Reform Act
that the legislature did not intend for this kind of suit against
a blood bank to be covered by the Reform Act.  

In a concurring opinion, Judge Pariente states as an additional
ground the blood bank's delay in raising the limitations defense,
citing a prior Florida Supreme Court ruling in which a medical
malpractice defendant had played a similar game of waiting for
the limitations period to expire before raising the defense that
plaintiffs had failed to comply with certain procedural
requirements of the Reform Act.  Pariente identified as the
purpose of the Reform Act's special procedures the encouragement of
expeditious settlement of malpractice litigation, and found that
this purpose would not be served by exercising the court's
certiorari jurisdiction "to review orders denying motions to
dismiss filed long after the lawsuit has been filed. . .  If the
blood bank truly desires to promptly resolve the claim at this
advanced stage of the proceedings, it could request arbitration
or court-ordered mediation.  To exercise our certiorari
jurisdiction in this case and allow dismissal of the complaint
would not foster the purposes of the pre-suit requirements and
would make a mockery of the well-motivated purposes of the pre-suit
requirements."  A.S.L.

HIV+ Clerk's Discrimination Complaint Effectively Rebutted by
Employer

Finding that the factual allegations of Frank Barnes's ADA
discrimination complaint against Yellow Freight System, Inc.,
were successfully rebutted by the employer, U.S. District Judge
Fish (N.D. Tex.) granted summary judgment to Yellow Freight in an
Aug. 7 decision.  _Barnes v. Yellow Freight System, Inc._, 1997 WL
452954 (not officially reported).

Barnes was hired by Yellow Freight in 1987.  In 1993, Barnes
revealed his HIV status to his supervisor, but admitted in his
deposition that he was not treated unfairly at work after this
disclosure.  In February 1995, Yellow Freight downsized its
Dallas office, eliminating ten clerical positions, including
Barnes's.  Under the terms of the collective bargaining agreement,
Barnes had a right to elect a transfer to a similar position in
Sioux Falls or to put his name on the Dallas lay-off roster, giving
him recall rights if positions opened up in Dallas.  As a transfer
would continue his medical benefits coverage (while forfeiting
office seniority) but a layoff would end his benefits, Barnes, who
was receiving expensive medications under the health plan, bid for
the transfer and his bid was successful.  The bid form indicated
that if Barnes was successful, he had to report for work at the new
location on his assigned starting date, or his employment would be
terminated.  

Barnes was ordered to report for work in Sioux Falls by April 10,
1995.  Barnes met with his doctor after learning of the transfer
date, to consult about continuing his medical care.  The doctor
determined that for Barnes to continue to receive the
experimental drug 3CT, he would have to travel from Sioux Falls to
either Minneapolis or Kansas City.  Barnes, who decided this was an
unworkable arrangement, approached his supervisor about
rescinding his bid and electing Dallas lay-off status.  However,
when he failed to report in Sioux Falls by April 10, he was
terminated by the customer services manager there.  Barnes
complained about this in writing to Yellow Freight, but the company
took the position that by accepting the transfer and then failing
to report, Barnes had forfeited his job.  Barnes sued under the
ADA, and appended a state law torts claim of intentional infliction
of emotional distress.  He has made no attempt to find other work
while this lawsuit is pending.

Ruling on Yellow Freight's summary judgment motion, Judge Fish
found that the issue whether an HIV+ individual is a member of
the ADA protected class is uncontested.  Without going through any
detailed analysis of whether Barnes adequately stated a prima
facie case, Fish indicated that "the court is satisfied that Yellow
Freight has articulated a legitimate non-discriminatory reason for
terminating Barnes. . . [and] thus negated any presumption of
discrimination."  Consequently, the burden was on Barnes to show
that Yellow Freight's explanation for his discharge was pretextual. 
"Barnes has adduced no facts, however, suggesting that a
discriminatory reason likely motivated this decision or that Yellow
Freight's explanation was not credible."  Fish also rejected
Barnes's argument that the discharge reflected a failure to
accommodate his disability, as there was no showing that Yellow
Freight terminated Barnes "in order to avoid accommodating [his]
impairments at the workplace" (quoting from a recent 5th Circuit
ADA decision, _Burch v. Coca-Cola Co._, 1997 WL 425943 [July 30]).

Finally, as to the emotional distress claim, Fish noted that
Texas sets a very high standard for the award of emotional distress
standards.  "The Fifth Circuit has held that under Texas law the
broad range of conduct encompassing mere employment disputes cannot
support a claim for intentional infliction of emotional distress,"
he noted, citing _Johnson v. Merrell Dow Pharmaceuticals, Inc._,
965 F.2d 31 (5th Cir. 1992), and also cited several cases showing
that Texas courts had consistently refused to award such damages in
the absence of extremely outrageous employer conduct.

Consequently, the court granted summary judgment to Yellow
Freight on all of Barnes's claims.  A.S.L.

AIDS Law & Society Notes:

Does Title II of the Americans with Disabilities Act, which
requires that "public entities" make available their services
without unjustified discrimination against persons with
disabilities, apply to state and local prisons' policies toward
prisoners?  Reversing a district court and answering this
question in the affirmative in _Yeskey v. Commonwealth of
Pennsylvania Dept. of Corrections_, 1997 WL 378975 (July 10), the
U.S. Court of Appeals for the 3rd Circuit lined up with prior
decisions from the 7th, 9th and 11th Circuits.  Holding contra are
the 4th and 10th Circuits.  "The question of the applicability of
the ADA to prisons is an important one," wrote Judge Becker for the
3rd Circuit, "especially in view of the increased number of
inmates, including many older, hearing-impaired, and HIV-positive
inmates, in the nation's jails."  Although the Supreme Court denied
certiorari in
the 4th Circuit case, _Torcasio v. Murray_, 57 F.3d 1340 (1995),
cert. denied, 116 S.Ct. 772 (1996), perhaps the continuing split
will tempt the Supreme Court to consider the issue, as it is
debatable whether prisoners could be considered consumers of
public services, and at least some courts find the argument
persuasive that it would be inconsistent with the normal deference
to penological expertise to allow administrative agencies and
courts to subject the decisions of prison administrators to the
requirements of the ADA.

The _Washington Times_ reported Aug. 20 that President Clinton's
nomination of William Weld to be ambassador to Mexico is
threatening to undermine attempts within the Clinton
administration to modify the administration's positions on medical
use of marijuana and needle exchange programs.  Sen. Jesse Helms
has made Weld's support for both of these issues a centerpiece in
his opposition to the nomination.  Meanwhile, within the
administration, advocates on AIDS policy had been quietly
maneuvering to persuade the president to soften the
administration's opposition on both issues, with some success,
which is now seen as jeopardized, especially as right-wing groups
have been mobilizing against the Weld nomination by focusing on
these issues. 

The _Boston Globe_ reported July 30 that a court in Cyprus has
convicted a Greek Cypriot of "knowingly infecting his British
girlfriend with the AIDS virus."  The defendant claimed that he
had disclosed his HIV status prior to having sexual intercourse
with his girlfriend, but the court found that informed consent was
not a defense.  Judge Antonis Liatsos stated: "A sick person has a
legal obligation to avoid any action likely to transmit such a
dangerous disease."  A.S.L.

PUBLICATIONS NOTED 

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Allison, Gary D., _Free Speech, Indecency and the Electronic
Media: The Fragmentation of the Supreme Court_, 32 Tulsa L. J. 403
(Spring 1997).

Backer, Larry Cata, _Reading Entrails:_ Romer, VMI_ and the Art
of Divining Equal Protection_, 32 Tulsa L. J. 361 (Spring 1997).

Balkin, J.M., _The Constitution of Status_, 106 Yale L.J. 2313
(June 1997).

Bilstad, Blake T., _Obscenity and Indecency in a Digital Age: The
Legal and Political Implications of Cybersmut, Virtual
Pornography, and the Communications Decency Act of 1996_, 13 Santa
Clara Computer & High Tech. L.J. 321 (1997).

Bowman, Cynthia Grant, _A Feminist Proposal to Bring Back Common
Law Marriage_, 75 Oregon L. Rev. 709 (Fall 1996).

Burke, Debra D., _The Criminalization of Virtual Child
Pornography: A Constitutional Question_, 34 Harv. J. Legis. 439
(Summer 1997).

Bush, Julian S., _Who Will Ensure That a Patient's Living Will is
Enforced?_, 24 Estate Planning 195 (June 1997).

Christensen, Craig W., _Legal Ordering of Family Values: The Case
of Gay and Lesbian Families_, 18 Cardozo L. Rev. 1299 (January
1997).

Cohen, Jean L., _Is There a Duty of Privacy?  Law, Sexual
Orientation, and the Construction of Identity_, 6 Tex. J. Women &
L. 47 (Fall 1996).

Coolidge, David Orgon, _Same-Sex Marriage?_ Baehr v. Miike_ and
the Meaning of Marriage_, 38 So. Tex. L. Rev. 1 (March 1997).

Dillof, Anthony M., _Punishing Bias: An Examination of the
Theoretical Foundations of Bias Crime Statutes_, 91 Northwestern
U. L. Rev. 1015 (Spring 1997).

Dubnoff, Caren G., Romer v. Evans_: A Legal and Political
Analysis_, 15 L. & Inequality 275 (Spring 1997).

Eskridge, William N., Jr., _A Jurisprudence of "Coming Out":
Religion, Homosexuality, and Collisions of Liberty and Equality
in American Public Law_, 106 Yale L.J. 2411 (June 1997).

Franke, Katherine M., _Homosexuals, Torts, and Dangerous Things_,
106 Yale L.J. 2661 (June 1997) (commentary on new casebooks on
sexuality/homosexuality and law).

Franke, Katherine M., _What's Wrong With Sexual Harassment?_, 49
Stanford L. Rev. 691 (April 1997).

George, Robert P., _Public Reason and Political Conflict:
Abortion and Homosexuality_, 106 Yale L.J. 2475 (June 1997).

Gorman, Wayne, _Hearsay in Sexual Offence Prosecutions_, 39 Crim.
L. Q. (UK) 493 (1997).

Griffin, Andrew, _Another Case, Another Clause -- Same-Sex
Marriage, Full Faith and Credit and the U.S. Supreme Court's
Evolving Gay Rights Agenda_, Pub. L., 315 (Summer 1997) (British
law journal).

Gruen, Lori (ed.), _Sex, Morality, and the Law_ (New York:
Routledge, 1997) (anthology includes extensive coverage on
lesbian and gay issues).

Hanan, Jehnna Irene, _The Best Interest of the Child: Eliminating
Discrimination in the Screening of Adoptive Parents_, 27 Golden
Gate U. L. Rev. 167 (Spring 1997).

Hicks, Martin, and Gareth Branston, _Transsexual Rape -- A
Loophole Closed?_, The Criminal Law, Aug. 1997, at 565 (U.K.).

Hucker, John, _Antidiscrimination Laws in Canada: Human Rights
Commissions and the Search for Equality_, 19 Hum. Rts. Q. 547
(1997).

Kersch, Ken I., _Full Faith and Credit for Same-Sex Marriages?_,
112 Poli. Sci. Q. 117 (Spring 1997).

Lee, Jae-Jin, _Understanding Hate Speech as a Communication
Phenomenon: Another View on Campus Speech Code Issues_, 19
Communications & the L. 63 (June 1997).

McAllister, Stephen R., _The Constitutionality of Kansas Laws
Targeting Sex Offenders_, 36 Washburn L.J. 419 (Summer 1997).

Minow, Martha, _Not Only for Myself: Identity, Politics, and
Law_, 75 Oregon L. Rev. 647 (Fall 1996).

Murray, S. Douglas, _The Demise of Campus Speech Codes_, 24
Western St. U. L. Rev. 247 (Spring 1997).

Powell, Brian, and Douglas B. Downey, _Living in Single-Parent
Households: An Investigation of the Same-Sex Hypothesis_, 62 Am.
Sociological Rev. 521 (August 1997).

Raisty, Laura M., _Bystander Distress and Loss of Consortium: An
Examination of the Relationship Requirements in Light of_ Romer
v. Evans, 65 Fordham L. Rev. 2647 (May 1997).

Rush, Sharon Elizabeth, _Equal Protection Analogies -- Identity
and "Passing": Race and Sexual Orientation_, 13 Harv. Black Letter
L. J. 65 (Spring 1997).

Russell, Dennis, _Speech Vulnerabilities, Unique Concerns:
Regulating Hate Speech on University Campuses_, 19 Communications
& the L. 79 (June 1997).

Siegel, Reva, _Why Equal Protection No Longer Protects: The
Evolving Forms of Status-Enforcing State Action_, 49 Stanford L.
Rev. 1111 (May 1997).

Simon, Norman C., _The "Evolution" of Lesbian and Gay Rights:
Reconceptualizing Homosexuality and_ Bowers v. Hardwick_ From a
Sociobiological Perspective_, 1996 Ann. Sur. Am. L. 105 (1996).

Strassberg, Maura I., _Distinctions of Form or Substance:
Monogamy,
Polygamy and Same-Sex Marriage_, 75 N. C. L. Rev. 1501 (June
1997).

Swisher, Peter Nash, and Nancy Douglas Cook, Bottoms v. Bottoms_:
In Whose Best Interest? Analysis of a Lesbian Mother Child
Custody
Dispute_, 34 U. Louisville J. Fam. L. 843 (1995-96).

Tedeschi, Debra Sherman, _The Predicament of the Transsexual
Prisoner_, 5 Temple Pol. & Civ. Rts. L. Rev. 27 (Fall 1995).

Weinberg, Jonathan, _Cable TV, Indecency and the Court_, 21
Columbia-VLA J. L. & Arts 95 (Winter 1997).

Yared, Christine, _Where Are the Civil Rights for Gay and Lesbian
Teachers?_, 24 Hum. Rts. (ABA) No. 3, 22 (Summer 1997).

_Student Notes & Comments:_ 

Arora, Vikas, _The Communications Decency Act: Congressional
Repudiation of the "Right Stuff"_, 34 Harv. J. Legis. 473 (Summer
1997).

Brown, Leonard G., III, _Constitutionally Defending Marriage: The
Defense of Marriage Act, _Romer v. Evans_ and the Cultural Battle
They Represent_, 19 Campbell L. Rev. 159 (Fall 1996) (Student
passionately argues that Scalia was correct in _Romer_ dissent,
and supports constitutionality of DOMA).

Cheng, Edward S., _Boys Being Boys and Girls Being Girls --
Student-to-Student Sexual Harassment From the Courtroom to the
Classroom_, 7 UCLA Women's L.J. 263 (Spring/Summer 1997).

Kinney, Heather M., _The "Deliberate Indifference" Test Defined:
Mere Lip Service to the Protection of Prisoners' Civil Rights_, 5
Temple Pol. & Civ. Rts. L. Rev. 121 (Fall 1995).

Guillerman, Diane M., _The Defense of Marriage Act: The Latest
Maneuver in the Continuing Battle to Legalize Same-Sex Marriage_,
34 Houston L. Rev. 425 (Summer 1997).

McDonald, Daniel J., _Regulating Sexually Oriented Businesses:
The Regulatory Uncertainties of a "Regime of Prohibition by
Indirection" and the Obscenity Doctrine's Communal Solution_,
1997 Brigham Young U. L. Rev. 339.

Note, _Teetering on the Brink of Equality: Sexual Orientation and
International Constitutional Protection_, 17 Boston Coll. 3rd
World L.J. 365 (Spring 1997).

Onixt, Micah, Romer v. Evans_: A Positive Portent of the Future_,
28 Loyola U. Chi. L. J. 593 (Spring 1997).

Parrott, Vicki, _The Effect on the Child of a Custodial Parent's
Involvement in an Intimate Same-Sex Relationships -- North
Carolina Adopts the "Nexus Test" in_ Pulliam v. Smith, 19 Campbell
L. Rev. 131 (Fall 1996).

Patton, Rodney, _Queerly Unconstitutional?: South Carolina Bans
Same-Sex Marriages_, 48 S. Caro. L. Rev. 685 (Spring 1997).

Railey, Elizabeth Rover, _Three Men and a Baby: Second-Parent
Adoptions and Their Implications_, 38 Boston Col. L. Rev. 569
(May 1997).

Reed, Elizabeth J., _Criminal Law and the Capacity of Mentally
Retarded Persons to Consent to Sexual Activity_, 83 Va. L. Rev.
799 (May 1997).

Ritchie, Christopher D., _Confronting Indecent Cable Television
Programming: Balancing the Interests of Children and the Exercise
of Free Speech in_ Denver Area Educational Telecommunications
Consortium, Inc. v. FCC, 21 Nova L. Rev. 741 (Winter 1997).

Ruskay-Kidd, Scott, _The Defense of Marriage Act and the
Overextension of Congressional Authority_, 97 Col. L. Rev. 1435
(June 1997).

Sloan, Craig A., _A Rose by Any Other Name: Marriage and the
Danish Registered Partnership Act_, 5 Cardozo J. Int'l & Comp. L.
189 (Spring 1997)47878.

Stepka, Donald T., _Obscenity On-Line: A Transactional Approach
to Computer Transfers of Potentially Obscene Material_, 82 Cornell
L. Rev. 905 (May 1997).

Wilson, William M., III, Romer v. Evans_: "Terminal Silliness,"
or Enlightened Jurisprudence?_, 75 N.C. L. Rev. 1891 (June 1997).

_Symposia:_

Volume 6 of the Australasian Gay and Lesbian Law Journal (1997)
has been published, containing the following articles: Justice
Michael Kirby, _Homosexual Law Reform: The Road of Enlightenment_;
Justice Alastair Nicholson, _The Changing Concept of Family: The
Significance of Recognition and Protection_; Anita Jowitt, _The
Legal Recognition of Relationships Between Couples of the Same Sex:
A New Zealand Perspective_; Jenny Gentles, _Sexuality in Our
Society: Rape and Sexual Intimacy_; Joseph Carmel Chetcuti, _The
Dismembered Body Case: Gay Panic Defense in a Civil Law Legal
System_.  _Fidelity in Constitutional Theory_, Symposium, 65
Fordham L. Rev. No. 4 (March 1997).

_Specially Noted:_

The Summer 1997 issue of _Family Advocate_ (Vol. 20, No. 1), the
magazine published by the ABA's Family Law section, is devoted to
lesbian and gay family law issues, with brief articles by
Frederick C. Hertz, Kathryn Kendell, Charlotte J. Patterson, Donna
J. Hitchens, Beatrice Dohrn, Jane A. Marquardt, Daniel R. Foley,
and Norman N. Robbins.  The issue also includes an interview on
adoption by gay and lesbian couples with Emily Doskow, a prominent
practitioner in the area. * * *  In the _National Law Journal_'s
Aug. 18 issue, Lambda Legal Defense & Education Fund staff attorney
David S. Buckel writes a plea for judicial education programs on
sexual orientation issues.  "Unequal Justice for Gays in Hostile
Courtrooms" (p.A20) provides specific examples in which lesbian and
gay litigants encountered judicial bias, and describes action by
the ABA and many states to enact ethical rules for judges that
prohibit sexual orientation bias, as well as the efforts by several
bar associations to study and document the problem.  Buckel notes
that, apart from some preliminary work being done in California,
there is little evidence of any effort by authorities to address
these new anti-bias requirements in their judicial education
programs.  Buckel has authored a detailed report on the subject for
Lambda Legal Defense Fund, from which copies are available. 
(Call 212-809-8585.) * * * "Using Family Values to Expand Lesbian
Rights," by David E. Rovella, in the _National Law Journal_ issue
of Aug. 25 (p. A7), highlights the family law work on behalf of
lesbians and gay men by the National Center for Lesbian Rights,
based in San Francisco. 

AIDS & RELATED LEGAL ISSUES: 

Andrias, Richard T., & Robert E. Stein, _Sterile Syringes and
Needle Exchange Programs: On the Frontline in the Battle to Stop
the Spread of HIV_, 24 Hum. Rts. (ABA) No. 3, 8 (Summer 1997).

Frierson, James G., _Heads You Lose, Tails You Lose: A Disturbing
Judicial Trend in Defining Disability_, 48 Lab. L. J. (CCH) 419
(July 1997).

Hollins, Janet, _An Imminent, Unidentifiable Victim: Does HIV
Require a Duty to Warn?_, 64 Defense Counsel J. 214 (April 1997).

Kane, Stephanie, and C. Jason Dotson, _HIV Risk and Injecting
Drug Use: Implications for Rural Jails_, 43 Crime & Delinquency 169
(April 1997).

King, Kathryn, _Communication Difficulties in the AIDS Ward: Can
Cultural Theory Help?_, 24 Crim. Justice & Behavior 391
(September 1997).

Lee, Michel, _Searching for Patterns and Anomalies in the ADA
Employment Constellation: Who Is a Qualified Individual With a
Disability and What Accommodations Are Courts_ Really_ Demanding?_,
13 The Labor Lawyer 149 (Summer 1997).

Mann, Jonathan M., _Medicine and Public Health, Ethics and Human
Rights_, 27 Hastings Ctr. Rpt. No. 3, 6 (May-June 1997).

Parmet, Wendy E., and Donald J. Jackson, _No Longer Disabled: The
Legal Impact of the New Social Construction of HIV_, 23 Am. J. L.
& Med. 7 (1997).

Rossbacher, Henry H., James S. Cahill and Linda L. Griffis,
_ERISA's Dark Side: Retiree Health Benefits, False Employer
Promises and the Protective Judiciary_, 9 DePaul Business L.J.
305 (Spring/Summer 1997).

Stanley, Ann E., _May I Ask You a Personal Question? The Right to
Privacy and HIV Testing in the European Community and the United
States_, 65 Fordham L. Rev. 2775 (May 1997).

Tucker, Bonnie Poitras, _Insurance and the ADA_, 46 DePaul L.
Rev. 915 (Summer 1997).

Wilkinson, Wendy, _Judicially Crafted Barriers to Bringing Suit
Under the Americans With Disabilities Act_, 38 S. Tex. L. Rev.
907 (July 1997).

Wolohan, John T., _An Ethical and Legal Dilemma: Participation in
Sports by HIV Infected Athletes_, 7 Marquette Sports L. J. 373
(Spring 1997).

_Student Notes & Comments:_

Canick, Simon M., _Constitutional Aspects of Physician-Assisted
Suicide After_ Lee v. Oregon, 23 Am. J. L. & Med. 69 (1997).

Doerler, William L., SEC v. Life Partners, Inc._: An Extended
Interpretation of the_ Howey_ Test Finds That Viatical
Settlements Are Investment Contracts_, 22 Del. J. Corp. L. 253
(1997).

Heron, Ashley S., _The Americans With Disabilities Act: Who Can
Claim Its Protection?_, 48 Alabama L. Rev. 1023 (Spring 1997).

Note, _The Americans With Disabilities Act of 1990: An Analysis
of Title III and Applicable Case Law_, 29 Suffolk U. L. Rev. 1117
(Winter 1995).

Ruffo, Kristen S., _Public Policy vs. Parent Policy: States
Battle Over Whether Public Schools Can Provide Condoms to Minors
Without Parental Consent_, 13 N.Y.L.S. J. Hum. Rts. 589 (Spring
1997).

Schar, Reid J., _Downward Sentencing Departures for HIV-Infected
Defendants: An Analysis of Current Law and a Framework for the
Future_, 91 Northwestern U. L. Rev. 1147 (Spring 1997).

Taylor, Jake, _Sex, Lies, and Lawsuits: A New Mexico Physician's
Duty to Warn Third Parties Who Unknowingly May Be at Risk of
Contracting HIV From a Patient_, 26 New Mex. L. Rev. 481 (Summer
1996).

_Symposia:_

_Towards a Compassionate and Cost-Effective Drug Policy: A Forum
on the Impact of Drug Policy on the Justice System and Human
Rights_, 24 Fordham Urban L.J. 315 (Winter 1997).  _Drug
Development -- Who Knows Where the Time Goes?_, 52 Food & Drug L.
J. No. 2 (1997).

EDITOR'S NOTE

All points of view expressed in Lesbian/Gay Law Notes are those
of identified writers, and are not official positions of the
Lesbian and Gay Law Association of Greater New York.  All comments
in Publications Noted are attributable to the Editor. 
Correspondence pertinent to issues covered in Law Notes is welcome
and will be published subject to editing. Please address
correspondence to the Editor or send by e-mail. A.S.L.