LESBIAN/GAY LAW NOTES
ISSN 8755-9021     October 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; Arthur J. Levy, Esq., Brooklyn; Mark
Major, Esq., New York; Seth M. Rosen, NY Law School Student; K.
Jacob Ruppert, Esq., New York; Daniel R Schaffer, New York; Ian
Teran, Esq., New York; Paul Twarog, Esq., New York; Dirk Williams,
Esq., Boston; Robert Wintemute, Esq., King's College, London,
England.

Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340,
NYC 10003. 212-353-9118; e-mail: le-gal@interport.net

LeGaL Homepage: http://www.interport.net:80/~le-gal
Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln
(C) 1997 by Lesbian & Gay Law Association of Greater New York                        
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9th Circuit Upholds Military Discharges of Holmes and Watson

In an opinion totally lacking in the logic and wit of Sir Arthur
Conan Doyle, a panel of the U.S. Court of Appeals for the 9th
Circuit upheld the discharges of 1st Lt. Holmes and Lt. Watson from
the armed forces under the "don't ask, don't tell" policy adopted
by Congress and the Clinton Administration in 1993.  __Holmes v.
California Army Nat'l Guard__, 1997 WL 545865 (Sept. 5).  No, not
Sherlock Holmes and Dr. Watson, but the coincidence is startling,
isn't it?  The cases of the two men were consolidated for hearing
before a panel consisting of Charles Wiggins, a Reagan appointee,
and Stephen Reinhardt, a Carter appointee, both of the 9th Circuit,
and Thomas Reavley, a Carter appointee from the 5th Circuit,
sitting by designation.  Reavley and Wiggins are both semi-retired,
serving on senior status.  Wiggins wrote for the court; Reinhardt
dissented at length.

Richard Watson enlisted in the Navy in 1981 and achieved the rank
of lieutenant in 1991, capping a career rich in awards and
commendations.  Prior to his discharge, Watson was serving as an
Assistant Professor of Naval Science in the Naval Reserve Officers
Training Corps.  On Oct. 28, 1994, Watson sent a note to his
commanding officer stating: "I have a homosexual orientation.  I do
not intend to rebut the presumption."  The reference was to a key
element of the "don't ask, don't tell" policy, under which anybody
who says they are gay is presumed to have a propensity to engage in
homosexual conduct, and will be discharged unless they can rebut
this presumption.  At a later stage in his discharge proceedings,
Watson submitted a statement that he had not ever engaged in
homosexual conduct on a military base or with military personnel,
and did not intend to do so in the future.  This was deemed
insufficient to rebut the presumption, since he had not disavowed
engaging in homosexual conduct off-base or with persons outside the
military.  The district court upheld Watson's discharge for
"homosexual conduct."  (Under the regulation, one who does not
rebut the presumption is subject to discharge for homosexual
conduct, since stating that one is gay is considered conduct in
this context.)

Andrew Holmes enlisted in the California Army National Guard in
1986, becoming an officer in 1989.  He was promoted to 1st
Lieutenant and Combat Military Police Platoon Leader.  On June 3,
1993, in the midst of the furious public debate over Clinton's
proposal to end the ban and ongoing hearings conducted by Senator
Sam Nunn, Holmes sent a memo to his commanding officer, stating:
"As a matter of conscience, honesty and pride, I am compelled to
inform you that I am gay."  As a result, Holmes's federal
recognition as a Guard member was withdrawn; while he continues to
serve in a reserve status, it is in a lesser status under which he
would not be called to active duty in the event the Guard is
mobilized.  The federal district court in his case concluded that
this violated Holmes's right to equal protection and freedom of
speech and ordered his reinstatement.

Both cases arrived at the 9th Circuit about the same time, and were
consolidated for hearing before the same panel.  The panel voted 2-
1 that the policy, on its face and as applied to Holmes and Watson,
is constitutional.

As background to the case, Wiggins noted that the 9th Circuit
recently upheld the portion of the current policy that requires
discharge for __actual__ homosexual conduct, in __Philips v.
Perry__, 106 F.3d 1420 (9th Cir. 1997).  Thus, this decision starts
out accepting as precedent that the military may discharge members
for actually engaging in homosexual conduct (even though the
conduct in Philips was all off-duty, off-base, and with non-
military personnel).  The remaining issue is whether discharging
persons for saying they are gay but not offering evidence to rebut
the presumption that they will engage in actual homosexual violates
their constitutional rights of equal protection, due process, or
freedom of speech.

The 9th Circuit has rejected the contention that anti-gay
discrimination is subject to heightened scrutiny, and Wiggins cites
__Romer v. Evans__, 116 S.Ct. 1620 (1996), in partial support of
this view, describing that case as "applying rational basis review"
to the claim that Colorado Amendment 2 was unconstitutional.  Under
rational basis review, per __Heller v. Doe__, 509 U.S. 312 (1993),
government policies are presumed constitutional and "the burden is
on the one attacking the legislative arrangement to negative every
conceivable basis which might support it."  Further, noted Wiggins,
review of military policy is "especially deferential."

Against this backdrop, and already having a 9th Circuit precedent
that the military may discharge persons for engaging in homosexual
conduct, Wiggins found that the military had a legitimate interest
in preventing such conduct from occurring by presuming that self-
identified homosexuals have a propensity to engage in such conduct,
and that such a presumption was rational.  This conclusion was
bolstered by all of the other federal circuit decisions that have
considered this issue: __Richenberg v. Perry__, 97 F.3d 256 (8th
Cir. 1996); __Able v. U.S.__, 88 F.3d 1280 (2d Cir. 1996);
__Thomasson v. Perry__, 80 F.3d 915 (4th Cir. en banc), cert.
denied, 117 S.Ct. 358 (1996).  (Although the 2nd Circuit in
__Able__ remanded for consideration of the question decided in
__Philips v. Perry__, __supra__, it did decide that the
"presumption" theory was rational if the ban on conduct was
constitutional.)  "Although the legislature's assumption that
declared homosexuals will engage in homosexual conduct is
imperfect, it is sufficiently rational to survive scrutiny under
__Heller__," wrote Wiggins.  

Wiggins also concluded that this result was consistent with the 9th
Circuit's earlier decision ordering the reinstatement of Keith
Meinhold, because Meinhold's discharge was processed under the
prior military policy, which deemed "homosexuality" to be
"incompatible with military service," but which did not spell out
the propensity theory of homosexual status.

Wiggins rejected the argument that the opportunity to rebut the
presumption was meaningless, pointing out that several service
members had apparently done so by establishing to the satisfaction
of military discharge boards that despite their statements of
homosexual identity, they had not in the past and would not while
serving in the military engage in actual homosexual conduct with
anybody.

Having found the policy rational in the context of an equal
protection challenge, Wiggins concluded that it was also
sustainable against due process and free speech challenges.  Since
the court accepted the policy's conflation of self-identification
with conduct, the discharges in this case were for conduct, not for
speech, and thus, in Wiggins's view, distinguishable from the
holdings in Meinhold's case as well as Dusty Pruitt's case, which
arose under the prior policy.  (In both cases, the openly gay
servicemembers achieved victories in the 9th Circuit.)

Judge Reinhardt, the dissenter, has emerged as an articulate
exponent of gay rights on the 9th Circuit.  Ironically, he
dissented from the 3-judge panel decision that had struck down the
prior military policy in a challenge by Perry Watkins (see
__Watkins v. U.S. Army__, 837 F.2d 1428 (9th Cir. 1988), finding
the panel's decision in that case precluded by the Supreme Court's
ruling in __Bowers v. Hardwick__.  But the policy has evolved, and
so has Reinhardt's thinking on this issue.  "I believe that
discharging a serviceman on the basis of the statement `I am a
homosexual,' `I am gay,' or `I am a lesbian' impermissibly burdens
rights guaranteed by the First Amendment," he wrote.

Reinhardt's opinion turns on a close reading of the new statute and
regulations.  There was no 1st Amendment violation in discharging
a servicemember who said he or she was gay under the __prior__
regulation, because their speech was merely evidence establishing
their status, and the prior policy required discharge based on
status by declaring that "homosexuality is incompatible with
military service."  But that's not the new policy.  Under "don't
ask, don't tell," homosexuality as a status is not deemed
incompatible with military service; what is deemed incompatible is
homosexual conduct.  Where Reinhardt departs from the majority is
in the interpretation he puts on the statement "I am gay."  The
majority accepts the government's equation of the statement with a
propensity to engage in forbidden conduct, that transforms itself
into a confession of conduct unless rebutted. Reinhardt sees it as
merely a revelation of a status, under a policy that does not
prohibit military service by those who have that status.  

"It is evident to me," he wrote, "that if homosexual status is not
a bar to service, admitting to that status -- the statement that `I
am a homosexual' -- cannot itself be a cause for discharge.  There
can be nothing wrong about admitting to a status that is proper;
yet what is being punished in the case before us is just that --
the admission of a permissible status.  Clearly, therefore, it is
not the status that is being punished; it is the speech.  Punishing
speech that does no more than acknowledge a permissible status
violates the First Amendment.  There is no legitimate, let alone
compelling, governmental interest in punishing a serviceman's
acknowledgment that he is a member of a group that is eligible for
military service."

Reinhardt is actually quite skeptical about the ability to separate
issues of status and conduct when it comes to sexuality.  He finds
the presumption that homosexuals will engage in homosexual conduct
to be quite logical.  What he rejects is the notion that persons
must be celibate in order to serve in the military, but he accepts
that this seems to be the law in the 9th Circuit under the
__Philips__ decision.  In forceful prose, he describes how
ludicrous the political "compromise" of the policy actually is, and
how it lends itself to "unfair and discriminatory" treatment.  And
he shows how counterintuitive are the factual inferences the
government seeks to draw from the statements at issue:

"The tenuous connection the government seeks to draw between speech
and propensity (and then between propensity and conduct) cannot
withstand scrutiny under the First Amendment.  The difference
between being a homosexual and saying one is a homosexual is
precisely that -- one has said what is a fact.  The presumption
that one who speaks truthfully is more likely to engage in
prohibited conduct than one who conceals or lies about his
homosexual status is plainly insupportable.  It is at least as
likely that the homosexual who has acknowledged his sexual
orientation, and who knows that everyone is aware of his
preferences, will be willing to refrain from conduct that would
lead to his discharge as it is that a homosexual who has
successfully concealed his status, leads a covert and secretive
life and hopes not to be discovered, will refrain from `illicit'
encounters.  There is simply no rational basis for the presumption
that those who are honest have a greater propensity to commit
homosexual acts than those who prefer to hide their sexual
proclivities.  The presumption is of course also flawed in its
underlying premise that homosexual orientation involves only an
`abstract sexual preference . . . as distinct from a propensity.' 
As I have stated earlier, there is nothing abstract about the human
sex drive.  The thesis that being a homosexual, or having a
homosexual orientation, does not entail a propensity or proclivity
for a particular form of sexual activity, but that acknowledging
one's homosexual status does, is consistent with neither the facts
of life nor the plain meaning of the English language.  While these
artificial concepts of `orientation,' `preference,' `abstract
sexual preference,' `propensity,' `proclivity' may be sufficient to
support the policy's status/conduct distinction, they are far too
evanescent and subtle to serve as a basis for prohibiting or
punishing speech of substantive import."

Concluded Reinhardt: "Lieutenants Holmes and Watson will be
discharged not because they have engaged in prohibited conduct and
not because they are homosexual.  Rather the military seeks to
exclude them because they spoke openly of their homosexual status.
The new `Don't Ask, Don't Tell' policy, while purporting to allow
homosexuals to serve in this country's armed forces,
unconstitutionally conditions their service on an abridgment of
their free speech rights under the First Amendment.  For that
reason, I would hold the speech portion of `Don't Ask, Don't Tell'
unconstitutional."

Having litigated this far, it seems likely that either Holmes or
Watson, or perhaps both of them, will petition for en banc
reconsideration and perhaps certiorari.  However, as indicated by
the Supreme Court's denial of certiorari in __Thomasson__, it seems
unlikely that the issue of military service by gay people will
reach the Supreme Court for full consideration on the merits until
such time as a federal court of appeals decides to declare the
policy unconstitutional.

Watson is represented by Christopher J. Bakes and Douglas G.
Chapman III, Bakes & Chapman, of San Francisco.  Holmes is
represented by Todd E. Thompson and L. Jay Kuo from the firm of
Howard, Rice, Nemerovsky, Canady, Falk & Rabkin, also of San
Francisco.  Karen M. McGaffey of Bogle & Gates, Seattle, filed an
amicus brief on their behalf for the Northwest Women's Law Center,
as did Kirk Childress of Washington on behalf of the Servicemembers
Legal Defense Network.  In addition to government attorneys from
the U.S. Justice Department and the California Attorney General's
Office (defending the California Army National Guard's interest in
the case), the court received an amicus brief from Melissa Wells-
Petry on behalf of the Family Research Council, an anti-gay
lobbying and litigation group.  A.S.L.

LESBIAN/GAY LEGAL NEWS 

9th Circuit Upholds Attorney Fee Award to Meinhold in Navy
Discharge Dispute

Another episode was logged in what has become one of the most
celebrated "Gays in the Military" cases of the 90's.  The U.S.
Court of Appeals in the ever-maligned 9th Circuit upheld the award
of attorneys fees and a finding of bad-faith on the part of the
government in the on-going saga of Keith Meinhold.  __Meinhold v.
U.S. Department of Defense__, 1997 WL 527926 (Aug. 28).  Meinhold,
a Navy petty officer, was discharged in August 1992 for telling ABC
News "on the air" that he was gay.  This piece of the case, in
which Meinhold prevailed at the district court level and now on
appeal, focused on Meinhold's filing of a motion for attorneys fees
under the Equal Access to Justice Act (EAJA), which entitles a
party who substantially prevails in a civil action against the
government to attorneys fees unless the position of the government
was "substantially justified."

When Meinhold originally challenged his discharge in federal court,
District Court Judge Terry Hatter issued a preliminary injunction
ordering his reinstatement.  Hatter eventually went on to hold that
Meinhold's discharge was unconstitutional under the Equal
Protection Clause because the Navy's policy of discharging gay
servicemembers on a statement of homosexual status alone was not
rationally related to its permissible goals (that of discharging
homosexuals who engage in gay sex).  Not being entirely satisfied
by the government's position in the case, the district court
permanently enjoined the Department of Defense from denying
enlistment or discharging any person based on his sexual
orientation alone.   

The 9th Circuit avoided the constitutional question of discharge 
on the basis of status by reading the regulation as one which
mandates separation only when the person's statement indicates a
propensity to engage in homosexual acts.  It upheld Meinhold's
reinstatement because his statement to news anchor Peter Jennings,
during the dinner-hour news, only gave an indication of his sexual
status, and not his proclivities (this may have been a different
case had Meinhold appeared on __Nightline__ at bedtime).  The 9th
Circuit then vacated the district court's nation-wide injunction on
discharges except as it applied to Meinhold.  The 9th Circuit's
involvement up to this point is commonly referred to as "Meinhold
II."

Meinhold filed for attorneys fees under EAJA and the district court
awarded them on the basis that the government did not have
substantial justification for the discharge and its defense of the
discharge.  EAJA provides that "when a private litigant succeeds in
a civil proceeding against the United States, the prevailing party
must be awarded fees and expenses unless the  court finds that the
position of the United States was substantially justified."  On
appeal, the court may only reverse the district court's decision if
it finds "it was based on an erroneous conclusion of law or when
the record contains no evidence on which the decision could have
rationally been based."  The appeals court, in an opinion by Judge
Boochever, noted that the merits panel found that the Navy violated
its own regulation on discharge by discharging Meinhold on the
basis of his bare statement:  "I am in fact gay."  The panel found
that this statement does not indicate a desire to engage in
homosexual acts, what the regulation purports to abhor, and further
that Meinhold denied he had ever engaged in homosexual acts.  The
question of the benefit to the country of celibate seamen seemed to
be left for another day [which, unfortunately, occurred all too
soon. . . See the lead story in this issue of __Law Notes__ - Ed.].

The 9th Circuit found that it was bound to the panel's decision
that the Navy had violated its own regulation, and that the Navy
was only arguing a position which the panel had already rejected:
that an acknowledgement of status is equivalent to an admission of
conduct.  The district court, in awarding fees, found that the Navy
had not carried its burden in showing that its litigation posture
was reasonable, and the appeals court affirmed, as it could not say
that the district court had ruled irrationally.  The court finally
noted that it was not charged with deciding the constitutionality
of a regulation that no longer exists, but only with determining
whether the district court abused its discretion.  The court went
on to affirm a slightly reduced fee award to Meinhold, on the basis
that the district court has discretion in awarding attorneys 
fees and noted that the Supreme Court cautioned about a fee request
resulting in "a second major litigation."  It then remanded the
case to the lower court to allow for an award to Meinhold of fees
for the appeal.

In dissent, Judge Kozinski argued that the majority created a
conflict with four other circuits which ruled that the government
may discharge members of the armed forces simply for stating that
they are homosexuals.  He stated that the government had never lost
on the issue of gay discharge in any other circuit, and that under
the EAJA the issue is not whether every case the government cites
is on point with its position, but whether the weight of authority
"is so clearly against it that the government should have known
better than to continue pressing the point."  He noted that without
a single case before Meinhold's earlier one going the other way,
the government clearly had precedent on its side.  He concluded
that what the affirmation of the award is telling the government is
that it is no longer entitled to argue in the 9th Circuit that it
may "remove self-proclaimed homosexuals from the armed forces."  He
flatly states that this does not  reflect the law of the 9th or any
other circuit. P.T.  

Alabama Court Preserves Custody for Lesbian Mother

An Alabama appeals court reversed a trial court decision that would
have taken custody away from a mother due to her lesbian
relationship.  __J.B.F. v. J.M.F.__, 1997 WL 564476 (Ala. Civ.
App., Sept. 12).

The parties were divorced in 1993, agreeing their daughter would
remain in the custody of her mother, who had taken care of her
since birth.  In 1994, the father petitioned to change custody
based on the fact that the mother was "cohabiting with and
maintaining a sexual relationship with a member of the same sex." 
The mother acknowledged the relationship, but denied doing anything
that violated Alabama law.  Her girlfriend, "G," acted as a second
parent.  At the mother's request, the trial court appointed an
expert, who reported the child was developing normally.  On its own
motion, however, the trial court appointed a guardian ad litem, and
followed the guardian's recommendation that custody be transferred
to the father, and that the mother's visitation be exercised "with
no overnight guest who is unrelated by blood or marriage."  The
order was stayed pending appeal.

On appeal, Judge Wright cited cases from twenty-three states,
agreeing with the nineteen that found "no difference between a
parent living with someone of the opposite sex without the benefit
of marriage and a parent living in a committed relationship with
someone of the same sex."  Therefore, the father, who was living
with an opposite-sex partner to whom he was not married, had the
burden of proving the relationship was adversely affecting the
child.  The record contained no such evidence; just the opposite:
the child was "thriving," happy and well-adjusted, and wanted to
stay with her mother, whom even the father conceded was a good
parent.  Wright concluded that the decision was so unsupported by
the evidence that it had to be reversed. 

Two judges concurred in the opinion, and two more in the result. 
Judge Thompson dissented, asserting there was sufficient evidence
to support the trial court's decision, but without specifying what
that evidence was.  O.R.D. 

Nebraska Appeals Court Affirms Custody for Mother Despite Lesbian
Relationship

By a 2-1 vote, the Nebraska Court of Appeals (an intermediate
appellate court) affirmed a decision by the Douglas County District
Court, refusing to change custody of an 11-year daughter from her
mother, who has engaged in a same-sex relationship, to her father. 
__Hassenstab v. Hassenstab__.  According to a report in the __Omaha
World-Herald__ on Sept. 24, the Sept. 23 decision turned entirely
on the father's failure to demonstrate that the mother's conduct
had caused any harm to the daughter.

Thomas and Carol Hassenstab married in 1986 and divorced in 1990,
with Carol being awarded custody of their daughter, who is now 11
years old.  In 1996, Thomas sought a change of custody, arguing
that the mother's subsequent "homosexual relationship" was a
material alteration of the facts on which custody was granted.  The
trial court found that the daughter was happy, well-adjusted, and
had not suffered any negative effects from her mother's
relationship with another woman.  In an opinion for the court,
Judge Everett Inbody wrote: "There was no showing that the daughter
was directly exposed to the sexual activity or that she was in any
way harmed by the homosexual relationships between Carol and her
partner."  

Concurring, Judge Wesley Mues stated philosophical agreement with
the dissent on a personal basis, but asserted that the law demands
that custody be affirmed unless a harmful effect can be shown.  "If
this case had involved Carol's live-in relationship with a male, I
expect our decision to affirm would have passed with little note,"
he wrote, commenting that the decision was consistent with the law,
"whether morally correct or not."

Dissenting, Judge Edward Hannon emphasized that both parents are
Catholics who sent their child to parochial school and thus
subscribed to a code that considers homosexuality to be immoral. 
Hannon argued that parents teach morality by their life example,
and that "Carol has obviously set a horrible example." He insisted
that her conduct "will necessarily impair" her daughter in the
future, and thus it would be in her best interest to transfer
custody to her father.

Thomas's lawyer indicated that a decision had not been made on an
appeal.  According to the news report, this was the first Nebraska
appellate decision on whether a parental same-sex relationship
would justify a change in custody; if not appealed to the state's
supreme court, the court of appeals decision would have the effect
of a state-wide precedent.  A.S.L.

Florida Appeals Court Remands Lesbian Custody Case for
"Clarification"

The Florida District Court of Appeal reversed and remanded for
clarification a trial court's denial of a lesbian mother's bid to
obtain physical custody of her children.  __Packard v. Packard__,
1997 WL 528285 (1st Dist., Aug. 19).  Julie Packard was living in
a relationship with a woman when the trial court denied her
physical custody of her two daughters.  Brian Packard was also
living with a woman, and her children.  The trial court awarded
custody to the father because he would provide a more "traditional
family environment."  The Court of Appeal, unable to discern
whether or how the lower court applied Florida's statutory factors
to the facts of the case, declined to speculate as to whether the
"traditional family environment" standard was proper (but noted
Julie Packard's argument that Brian's non-marital relationship was
not "traditional"), and remanded for clarification.  D.W.

Mass. Appeals Court Rules on Discharge of School Custodian for
Homosexual Conduct

The Appeals Court of Massachusetts has affirmed the decision of the
state's Civil Service Commission that the Brockton School Committee
should not have discharged a custodian who was arrested for
engaging in oral sex in a public park.  __School Committee of
Brockton v. Civil Service Commission__, 1997 WL 570400 (Sept. 11). 
Rejecting the Superior Court's action in overturning the Civil
Service Commission's decision to convert the School Committee's
discharge decision to a one-year suspension, the Court concluded
that Massachusetts civil service law requires a showing that there
is a nexus between the misconduct charged against an employee and
the performance of his job.

In this case, Ralph Wise, a tenured civil service custodian
employed at a Brockton elementary school, was arrested by a police
officer who allegedly discovered him engaged in oral sex with
another man (age 60) in D.W. Field Park.  After a hearing, the
school superintendent discharged Wise for "inappropriate and
unbecoming" conduct.  Wise missed one scheduled shift as a result
of the arrest.  Wise appealed the decision to the civil service
commission, which assigned the matter to a magistrate for an
administrative hearing.  The magistrate decided that the conduct
with which Wise was charged did not have a sufficient nexus with
his custodial duties to justify discharge, but that his missing a
shift due to the arrest merited a one-year suspension.  The
Brockton school committee appealed to the Superior Court, which
reversed and reinstated the discharge, opining that there was
"nothing in the Commission's findings to justify the reduction of
Wise's penalty from discharge to suspension."

In an opinion for the appeals court, Judge Jacobs found that the
superior court applied the wrong standard.  As a tenured civil
servant, Wise could not be discharged except for "just cause," and
Massachusetts civil service provisions state that a discharge will
not be sustained if the employee establishes that it was based
"upon any factor or conduct on the part of the employee not
reasonably related to the fitness of the employee to perform in his
position."  Thus, the nexus requirement.  Wise was not engaged in
pedophilic activity, which might raise concerns for an elementary
school custodian, but rather was arrested for having oral sex with
a 60-year old man.  The court found that the magistrate had
implicitly concluded that Wise's continued employment presented no
harm to the school children or to the legitimate interests of the
school, even though his arrest was reported in the local
newspapers.

Wrote Jacobs: "In dealing with an interest as fundamental and
important as an employee's work tenure, an appointing authority has
the responsibility, when challenged before the commission, to
present evidence specifically and rationally justifying its action. 
In the absence of a relevant regulation or explicit job standards,
a rubric describing conduct as `inappropriate and unbecoming,' even
if generally accurate and applied in good faith, is insufficient to
justify discharge. . .  Here, there is no evidence that the
commission has forced an unreasonable risk upon the school
committee."  However, the court found sustainable the magistrate's
determination that Wise's missed shift as a result of his arrest
provided a sufficient basis for a one-year suspension.

Gay & Lesbian Advocates & Defenders submitted an amicus brief to
the court, which specifically rejected GLAD's suggestion that it
consider whether Wise's activity in a shaded area of the park might
not have occurred in a "public setting"; unfortunately, Wise had
never raised this issue before the commission, so it was waived on
appeal.  A.S.L.

Ohio Appeals Court Finds No Standing for Lesbian Co-Parent in
Visitation Case

In a case of first impression in Ohio, the Court of Appeals,
Franklin County, denied visitation to a child's non-biological
lesbian co-parent.  __Liston v. Pyles__, 1997 WL 467327 (Aug. 12). 
Judge Young wrote the opinion for the divided court.

After living in a committed relationship for twelve years,
appellant Marla Liston and her partner Tamara Pyles planned to
raise a child together.  Pyles bore the couple's son, Connor, whom
both parties cared for until their relationship soured three years
later.  After the couple separated, Pyles denied Liston all contact
with Connor.  The divided appellate panel affirmed the trial
court's conclusion that Liston lacked standing to seek an order of
visitation because she is neither Connor's biological nor adoptive
parent.

Ohio courts generally may consider requests for visitation only in
the context of a divorce, dissolution of marriage, legal
separation, annulment, or child support proceeding.  Same-sex
relationships lack legal status both in their formation and
termination.  Liston therefore filed a complaint asking that she be
compelled to pay child support. The court interpreted the support
statute narrowly, however, ruling that only a biological or
adoptive parent may be compelled to pay child support.  Because
Liston could not be ordered to pay child support, the court
concluded she lacked the requisite "piggy-back" standing to demand
visitation.  The majority rejected Liston's request for visitation
based on the doctrines of __in loco parentis__ and/or equitable
estoppel, concluding instead that only the state legislature has
the authority to extend visitation rights to lesbian and gay
partners of biological or adoptive parents.

Dissenting, Judge Tyack rejected the majority's restrictive
interpretation of Ohio's child support statute, and argued that
Liston should be given the opportunity to demonstrate that
visitation would be in the best interests of the child.  The Liston
case demonstrates a continued, dire need for legislative reform,
either by way of second-parent adoptions, or the recognition of
same-sex marriage, in order to accommodate non-traditional family
structures. 

The appellant was represented by Marya C. Kolman and Cathleen
Cover, with amicus support from the National Center for Lesbian
Rights (Kathryn D. Kendell, Legal Director, and Shannon Minter,
staff attorney).  Barry H. Wolinetz, Baker & Hostetler, represented
the appellee.  I.T.

Another 7th Circuit Panel Finds Same-Sex Harassment Covered Under
Title VII

Citing with approval a recent panel decision in __Doe v. City of
Belleville, 1997 WL 400219 (July 17), another panel of the U.S.
Court of Appeals for the 7th Circuit has ruled that same-sex
harassment in the workplace may be actionable as sex discrimination
under Title VII of the Civil Rights Act of 1964.  However, Circuit
Judge Cummings's opinion for the court in __Johnson v. Hondo,
Inc.__, 1997 WL 541952 (Aug. 28), cautions that the plaintiff must
show that he or she was harassed on account of sex in order to
state a valid claim.

Craig Johnson, a former employee of the CocaCola Bottling Co. of
Wisconsin, a franchise owned by Hondo, Inc., alleged that he was
subjected to hostile environment harassment by the conduct of a
male co-worker, Ollie Hicks.  Johnson and Hicks worked in an all-
male environment.  Johnson alleged that Hicks frequently said
things to him like "I am going to make you suck my dick" or
variants of this theme; Johnson's response was to call Hicks a
"punk," "faggot," "fag," and "s.o.b."  Johnson also alleged that
Hicks was homosexual, and had made similar comments to two other
male co-workers.  Johnson alleged that he and others complained to
management, but nothing was done to redress their complaints and
Johnson was ridiculed for making them.  After many months of this
conduct by Hicks, Johnson and Hicks finally came to physical blows
and both men were terminated for fighting while on duty.

The district judge predicted (on the basis of dicta in earlier
opinions) that the 7th Circuit would hold that same-sex harassment
was covered under Title VII, but nonetheless granted summary
judgment to the employer on Johnson's same-sex harassment claim,
finding that Johnson had failed to make out a prima facie case of
sexual harassment.  The 7th Circuit panel agreed with the district
judge on both points, noting another panel's __Belleville__
decision which was issued subsequent to the district court's
decision, but also agreeing with the district judge that a hostile
environment case had not been made out by Johnson.

Johnson's response to Hicks's conduct showed that he was not
intimidated by it, found District Judge Warren, and Hicks's conduct
did not cross "the line that separates the merely vulgar and mildly
offensive from the deeply offensive and sexually harassing."  More
importantly, Judge Warren found that Johnson was not singled out
because of his sex, concluding that "the facts of the fight present
a personal grudge match between two workers rather than a case of
sexual harassment."

The appeals court agreed with this analysis: "Although explicit
sexual content or vulgarity may often take a factfinder a long way
toward concluding that harassing comments were in fact based on
gender, this need not necessarily be the case.  Most unfortunately,
expressions such as `fuck me,' `kiss my ass,' and `suck my dick,'
are commonplace in certain circles, and more often than not, when
these expressions are used (particularly when uttered by men
speaking to other men), their use has no connection whatsoever with
the sexual acts to which they make reference -- even when they are
accompanied, as they sometimes were here, with a crotch-grabbing
gesture.  Ordinarily, they are simply expressions of animosity or
juvenile provocation, and there is no basis in this record to
conclude that Hicks' usage was any different."

The court noted that Johnson tried to bolster his claim by calling
Hicks a homosexual and referring to his conduct as "homosexual
advances," "homosexual overtures," and "homosexual onslaughts," but
the court was not buying it, finding no support in the record for
any contention that Hicks was sexually interested in Johnson.  In
a footnote, the court implicitly parted company from the 4th
Circuit, which only recognizes same-sex harassment claims when the
harasser is homosexual.  "In the different sex situation," wrote
Cummings, "we do not ask a slew of subjective and invasive
questions about the sexual orientation of the perpetrator or of the
victim.  We ask whether the treatment meted out created a hostile
work environment because the victim was singled out because of his
or her gender, and if so, whether the treatment was so severe and
pervasive as to alter the conditions of the victim's employment in
a significant way."  The same approach is to be followed in same-
sex harassment cases.  A.S.L.

Illinois Supreme Court Makes Inscrutable Ruling in Housing
Discrimination Case

Throwing a puzzle to legal commentators, the Illinois Supreme Court
has refused, without explanation, to review the decision in
__Jasniowski v. Rushing__, 678 N.E.2d 743 (Ill. App. Ct. 1997), but
at the same time voided the lower court ruling in a case of first
impression under an Illinois statute prohibiting marital status
discrimination in housing.  The case involves a landlord's refusal
to rent an apartment to a cohabiting heterosexual couple, based on
the landlord's religious objections to unmarried cohabitation.  The
state's civil rights agency and the Appellate Court had ruled
against the landlord, who filed this appeal.

The result of the Supreme Court's action is to relieve the landlord
of the order to pay a small fine and a large legal fee award, while
leaving unanswered the question whether religiously-observant
landlords are entitled to a "free exercise of religion" exemption
from having to comply with the state civil rights law.  __Chicago
Sun-Times__, Oct. 2.  A.S.L.

Minnesota Supreme Court Affirms Same-Sex Harassment Claim

A male heterosexual victim of sexually-related verbal and physical
abuse by his male heterosexual employer was allowed to prosecute a
sexual harassment claim pursuant to the Minnesota Human Rights Act
(Minn. Stat. ch. 363) (MHRA) by the Minnesota Supreme Court without
showing that the harassment affected one gender differently from
the other or that the harasser was homosexual. __Cummings v.
Koehnen__, 1997 WL 528158 (Aug. 28). The court departed from the
federal rule requiring proof of disparate gender effect under Title
VII of the Civil Rights Act of 1964 (42 U.S.C. sec. 2000-e-
2(a)(1)), noting that the MHRA specifically defines and prohibits
sexual harassment, while Title VII only prohibits sex
discrimination.

Charles Koehnen, co-owner of S & K Trucking and Landscaping,
L.L.C., hired Richard Cummings as a seasonal truck driver. In his
complaint with the Minnesota Dept. of Human Rights (MDHR), Cummings
alleged that, on a daily basis, Koehnen called Cummings derogatory
sexual names, including "fat faggot," and at various times said
"How about sucking my little dick and making it a big dick before
you go out to make me money"; told Cummings to bend over so he
could engage him in anal sex; placed his hands on Cummings' hips
simulating anal sex while stating "Here, let me show you how a real
man takes it"; told Cummings he was going to use his pony tail as
a handle while Cummings was on his knees to give Koehnen a "blow
job"; pinched him on the buttocks or on the inside of his legs and
placed tools and a garden hose against Cummings' crotch and
genitals; told Cummings to "bend over so I can do you in the ass";
and threw Cummings' paycheck on the floor, making him bend over to
pick it up, whereupon he grabbed Cummings' hips and simulated anal
sex, saying "Once you had this you'll never go back to your wife."
Cummings was subsequently notified he would not be recalled from a
seasonal layoff.  Cummings alleged these incidents were unwelcome
and interfered with his work, creating a hostile work environment. 


Writing for court, Justice Gardebring found that the MHRA makes it
an unfair employment practice to discriminate against an employee
"because of sex," defines "discriminate" to include "sexual
harassment," and defines "sexual harassment" to include sexual
advances, requests for sexual favors, and sexually motivated
physical or verbal conduct which are a) unwelcome, b) known or
should have been known to the employer, who then failed to take
timely and appropriate action, and c), any of the following: i)
submission of the claimant thereto was an explicit or implicit term
of obtaining employment, ii) the employer used submission thereto
or rejection thereof as a factor in decisions affecting employment,
or c) the conduct charged substantially interfered with employment
or created an intimidating, hostile or offensive work environment
for the claimant.  Ruling that the MHRA should be liberally
construed to accomplish its purposes, which include protecting
employees from sexual harassment, Gardebring held that the
statutory words "because of sex" are rendered superfluous in sexual
harassment claims by the specific statutory definitions of
discrimination and sexual harassment; those definitions make it
clear sexual harassment is "discrimination based on sex"; and that
Cummings need only prove the elements of the statutory definitions
and does not need to prove also that the harassment was "because of
sex." In a footnote, Gardebring noted without approval or
disapproval that the court of appeals read "because of sex" to mean
"relating to human sexuality." 

Gardebring rejected the employer's contention that because there
were no female employees situated similarly to Cummings and because
both men were heterosexual, Cummings cannot show differential
gender treatment or that Koehnen's conduct was motivated by sexual
interest in Cummings, and that as a result Cummings could not meet
his burden of proving that the harassment was "because of sex." 

Gardebring noted that the MHRA originally prohibited "only sex
discrimination" until an amendment specifically added a definition
of and prohibited sexual harassment. In Gardebring's view, when the
legislature left intact the phrase "because of sex" it produced a
"drafting anomaly." Gardebring reasoned that requiring a showing of
differential treatment would lead to absurd results, in that it
would leave two classes of employees unprotected: those working in
a single gender workplace and those working where both males and
females are harassed. Gardebring also noted that the MDHR took the
same position in its probable clause finding, in similar findings
in other cases, and in its submission of an amicus curiae brief,
which was "entitled to deference."  Gardebring concluded that the
MHRA does not require a claimant to show disparate treatment or
that offending conduct was motivated by an interest in sexual
activity with the claimant.

In a strong dissenting opinion, Justice Page agreed that the MHRA
prohibits sexual harassment between persons of the same sex but
then went on to insist that the MHRA amendment did not eliminate
the requirement to prove that the offending conduct occurred
"because of sex," which, in Page's view, means gender disparity. 
Page did not attempt to reconcile the two views and did not explain
what forms of same-sex sexual harassment would remain actionable if
a showing of gender disparity were required. 

Page also reviewed the legislative history behind the amendment
prohibiting sexual harassment and concluded that it came about as
a codification of the court's holding in __Continental Can Co.,
Inc. v. State__, 297 N.W.2d 241 (Minn. 1980). Page found that in
that case the court held sexual harassment actionable as a form of
gender discrimination under the MHRA prohibition of discrimination
on the basis of sex. Quoting from that opinion, Page stated that
the rationale of that case was to effectuate the MRHA's purpose "to
rid the workplace of disparate treatment of female employees merely
because they are female" and that such disparity created a work
environment different from that faced by males. Page concluded that
the purpose of the MHRA amendment was to remove barriers to
equality based on gender.

Criticizing the majority's analysis as "politically correct" but
"legally flawed," Page argued that the majority effectively read
the "because of sex" requirement out of the statute, violating
legislative intent.  Page worried that the majority's decision
would generate a flood of unwarranted sexual harassment claims and
stated that the real need for protection lay with women and men who
have faced barriers to gender equality in the workplace. 

While writing that the legislature did not intend to make
actionable all "rude and crude" workplace conduct between persons
of the same sex, Justice Page disavowed any intention to excuse the
conduct charged, agreeing that it was both "offensive and
disgusting" and "rude and crude" and of the type an employer should
not have to tolerate.  A.J.L.

U.S. Court in Ohio Sustains Same-Sex Harassment Cause of Action

U.S. District Judge Katz (N.D. Ohio) denied summary judgment to the
defendants in __Griswold v. Fresenius USA, Inc.__, 1997 WL 569180
(Sept. 10), a same-sex harassment case under Title VII of the Civil
Rights Act of 1964.  This case involves a claim by a heterosexual
male employee that he was subjected to hostile environment sexual
harassment by a heterosexual male company supervisor.  

A major issue on this motion was whether the court would accept
testimonial affidavits from co-workers of the plaintiff, describing
the alleged harasser's behavior.  One aspect of the allegations of
the complaint was that the alleged harasser, although heterosexual,
constantly engaged in "stereotypical `homosexual' behaviors" as
part of his harassing conduct.  The court found the affidavits
admissible: "While Kinder's propensity to engage in stereotypical
`homosexual' behaviors may indicate little or nothing about his
true sexual orientation, most lay people are familiar with the
social import of certain gestures, speech patterns, and styles of
walking and standing," wrote Katz, "and are competent to give
opinions about whether a given individual engages in stereotypical
`homosexual' behavior, and thus `comes across' as homosexual or
bisexual."

More significantly, the court found that a same-sex harassment
claim involving heterosexuals could be brought under Title VII. 
The court found for purposes of deciding the motion that the
alleged harasser "engaged in a regular pattern of physically
accosting male, but not female, employees in a sexual manner by
fondling their breasts, shoulders and buttocks; engaged in
stereotypical homosexual nonverbal behaviors; and `propositioned'
male employees and subjected them to lewd comments; and that such
behavior was neither commonplace horseplay nor perceived as such by
the targets of [his] behavior." The court also found that
supervisory personnel received and disregarded "multiple
complaints" about this employee's behavior.

After reviewing the divided precedent from different circuits and
noting that the 6th Circuit had not definitively addressed the
issue before the court, Judge Katz asserted that the better view
was taken by the 8th Circuit, which has ruled that hostile
environment claims of this type can be brought under Title VII. 
Rejecting the 4th Circuit's requirement that the alleged harasser
be homosexual in order to sustain a same-sex harassment claim, the
court discounted the worry that its decision would open a floodgate
of frivolous harassment claims.  Katz suggested that this problem
could be avoided by erecting a presumption that persons do not
sexually harass others of the same sex, and requiring the plaintiff
to show (to overcome this presumption) "both (1) background
circumstances to support the suspicion that the defendant is an
unusual employer who discriminates against the offended demographic
group, and (2) that the employer gave favorable treatment to
similarly situated employees who were not members of the protected
group."  Noting that in this case, the plaintiff had submitted
credible evidence that the alleged harasser's conduct fit this
typology, the court held that summary judgment should not be
granted to the defendant.  A.S.L.

U.S. Court in New York Refuses to Dismiss Same-Sex Harassment Claim

Ruling in __Bellom v. Neiman Marcus Group, Inc.__, 1997 WL 535234
(S.D.N.Y., Aug. 26), District Judge Barrington D. Parker, Jr.,
denied defendant's motion for summary judgment in a same-sex
harassment claim brought by Elizabeth Bellom concerning conduct of
her former supervisor, Diane Livingston.  Bellom claims that
immediately after she was hired in October 1994 as a make-up artist
in the cosmetics department of defendant's White Plains, N.Y.,
store, Livingston began to subject her to unwelcome sexually
suggestive comments and behavior.  She complained about this to
management, which instituted an investigation in February 1995 and
dismissed Livingston later that month.  Bellom claims that the
defendant was aware of Livingston's objectionable conduct long
before it took any steps to "investigate" the problem.  Judge
Parker found that there were factual issues concerning when
defendant actually became aware of Livingston's conduct, so refused
to grant summary judgment in favor of defendant.  The defendant
argued that it had moved against Livingston expeditiously and thus
should not bear any liability under Title VII.  A.S.L.

Virginia Appeals Court Rejects Equal Protection Attack on
Solicitation Law

The defendant in __Branche v. Commonwealth__, 1997 WL 533082 (Va.
Ct. App., Sept. 2), was convicted for criminal solicitation to
commit oral sex, a felony, in a Virginia Beach park.  He argued on
appeal that the statutory scheme which underlies the conviction
violates the Equal Protection Clause of the 14th Amendment of the
U.S. Constitution because it punishes those acts which are
typically performed by homosexual men as felonies, while the
equivalent acts typically performed by (female) prostitutes are
punished as misdemeanors. "Oral sodomy" is a Class 6 felony
according to Va. Code sec. 18.2-361.  Va. Code sec. 18-2.29 makes
it a felony to solicit the commission of a felony.  However, the
state prostitution statute, Va. Code sec. 18.2-346, makes
commission of oral sex or the solicitation to commit oral sex
(among other sex acts) for money merely a Class 1 misdemeanor.

The Virginia Beach police were staking out a park as part of an
investigation of criminal solicitations.  The arresting officer,
Detective Cruz, was "cruised" by the defendant near a rest room.
Cruz said he didn't want to do anything there, for fear of being
caught, so the two went into the surrounding woods.  After the two
agreed that neither wanted to engage in anal sex, Branche suggested
mutual oral sex.  Cruz then arrested Branche, read him his
__Miranda__ rights, and asked him if he would have asked for money
in return for oral sex.  Branche said he would not have done so.

The appellate court, in an opinion by Judge Coleman, framed
Branche's position as follows: "The unfairness of the [statutory]
scheme, . . ., is that females who solicit another to commit an act
of oral sodomy for money can be convicted only of a misdemeanor
[citation omitted], whereas men who solicit another to commit an
act of oral sodomy, not for money, may be convicted of a felony."

The court stated Branche's position correctly, and rejected it in
its entirety, ruling that the statutory scheme does not
impermissibly distinguish or make classifications.  The rationale,
as stated, defies all logic, under the facts of this case.  The
court cites a number of U.S. Supreme Court cases for the
proposition that people who are not similarly situated need not be
treated the same for Equal Protection analysis.  The court then
states that those arrested for criminal solicitation to commit oral
sex are differently situated from those who are arrested for  
prostitution, and this does not create impermissible
classifications among people who are similarly situated.  The
problem is that the court refuses to say why. 

In a passage so breathtaking in either stupidity or intellectual
dishonesty that it must be quoted in full, the court stated: "The
defendant correctly observes that persons who solicit oral sodomy
may be guilty of either a felony or a misdemeanor depending upon
whether they seek remuneration for the act.  While both statutes
prohibit solicitation to engage in the act of sodomy, one statute
is directed at those who do so for remuneration and the other is
directed at those who do so without a request or demand for
remuneration.  By recognizing different motivations, the statutes
create separate classifications of prohibited conduct.  The persons
affected by the statutes are not similarly situated and the General
Assembly may without judicial scrutiny under the Equal Protection
Clause, assign distinct punishments for different crimes. [citation
omitted] 

"Because the two groups of individuals proscribed by the statute
are not engaged in the same activity, the General Assembly's
decision to punish one group more severely than the other does not
violate our constitutional principle of equality. Thus, we reject
the defendant's claim that the statutory scheme violates the Equal
Protection Clause." 

It barely needs to be said that Branche's arguments of selective
enforcement and insufficiency of the evidence were likewise
rejected. S.K.

N.C. Court Recognizes Out-of-State Gay Adoption

Durham County, North Carolina, District Judge Elaine O'Neal ruled
on Aug. 29 that under the Full Faith and Credit clause of the U.S.
Constitution, North Carolina should recognize the adoption of a
child by her lesbian co-parent which occurred three years ago in
Washington state.  

The child was born in 1993 to S.R.E, and adopted shortly
thereafter by E's partner, A.S.S.  The women and
child moved to North Carolina subsequent to the adoption.  In 1996,
E and S ended their relationship, and the child continued to
live with S, the adoptive parent.  E now lives in Georgia.

S initiated the litigation, seeking a declaration giving her
legal custody of the child.  E opposed the action, observing
that a recent North Carolina law forbids same-sex marriages in the
state and arguing that North Carolina's public policy should be
used to deny S's petition under a "public policy exception" to
the Full Faith and Credit requirement.

Rejecting E's argument, Judge O'Neal wrote that recognizing the
out-of-state adoption "simply allows the court to determine custody
of the child, as between two involved adults, based on the
interests of the child -- which is the expressed public policy of
the state in resolving custody matters. . .  North Carolina has no
public policy denying parental status to an individual based upon
that person's sexual preferences," she concluded.  O'Neal scheduled
a further hearing to make a best interests determination, but
indicated in her decision that E may have surrendered her
"paramount interest" in the child by consenting to the adoption. 
(Normally, in a custody dispute, it is presumed that the best
interest of the child will be served by placing it in the custody
of a natural parent.)  A.S.L., based on reports in the __Charlotte
Observer__ (Aug. 31) and the __Raleigh News & Observer__ (Aug. 30).
A.S.L.

Ohio Appeals Court Holds Domestic Violence Statute Applies to Non-
Marital Relationship

In a decision that may prove helpful to members of same-sex couples
seeking assistance from law enforcement authorities to combat
violence within their relationships, the Ohio Supreme Court ruled
Sept. 24 that unmarried cohabitants may be subject to penalties for
domestic violence under the state's criminal law.  __State v.
Williams__, 683 N.E.2d 1126, 79 Ohio St. 3d 459.  

In this case, the defendant was convicted of the crime of domestic
violence for assaulting the woman with whom he was living in a non-
marital sexual relationship.  The trial court found him guilty of
domestic violence.  The court of appeals reversed, holding that
defendant's right to counsel had been violated and that the
evidence was insufficient to show that defendant and victim were
cohabiting.

Writing for the court, Justice Alice Robie Resnick noted that the
sole issue on appeal was whether victim and defendant were "family
or household members" as specified in the statute, R.C. 2919.25. 
The law extends beyond marital relationships to a person who is
"living as a spouse" with another person, which includes
"cohabitants," a term which is not otherwise defined in the
statute.  Rejecting the defendant's arguments, the court found that
the statute does not require that the defendant and the victim
share the same residential address.

Justice Resnick noted that "domestic violence arises out of the
relationship between the perpetrator and the victim."  Thus, even
dating relationships should come within the statute, given the
legislature's intention to deal with the problem of domestic
violence.  The court cited with approval lower Ohio court decisions
applying the statute to a broad range of cases, including a 1996
decision applying it to homosexual couples, __State v. Linner__,
665 N.E.2d 1180 (Ohio App.).  Resnick concluded that the only
requirements for finding the statute applicable were "sharing of
familial or financial responsibilities and consortium," and then
described the possible indicia of each of these elements, noting
that a case-by-case determination had to be made to determine
whether the relationship of the parties was sufficient to bring
them within the coverage of the domestic violence law.  The
judgment was unanimous, although two members of the court concurred
only in the judgment, not joining the opinion.  A.S.L.

Mass. Appeals Court Holds Durable Power of Attorney Trumps
Guardianship Application by Natural Heirs

Ruling in a case of first impression that should be of interest to
those doing estate planning for lesbians and gay men, the Appeals
Court of Massachusetts held in __Guardianship of James A. Smith__,
1997 WL 561435 (Sept. 11), that individuals appointed under a
validly executed durable power of attorney should have priority in
appointment as guardians in the event of the incapacity of the
maker of the durable power.  In this case, James A. Smith executed
a durable power of attorney in 1989 appointing two of his friends
and business associates, David Adams and Alfred Carl, to be his
"attorneys in fact."  Several years later, his wife and daughter
petitioned the probate court to be appointed as guardians of Smith,
alleging his incapacity, and they were provisionally appointed;
Adams and Carl filed objections, asserting that they should be
appointed as guardians.  The probate judge ruled in favor of the
relatives over the appointed attorneys in fact, asserting that as
the attorneys in fact were also employees of the business that was
owned by Smith, they would have a conflict of interest in serving
as his guardians.

In an opinion for the appeals court, Judge Warner found no conflict
of interest, and also found that under the guardianship statute,
Adams and Carl must be appointed guardians as an effectuation of
Smith's intent, unless they were shown to be unqualified.

This decision holds potentially great significance for lesbians and
gay men, whose estate planning efforts are occasionally challenged
by estranged biological family members, who may seek to have
themselves appointed guardians in preference to a life-partner or
friend previously appointed in a durable power of attorney,
especially when the alleged incompetent has significant assets or
an ongoing business.  (The durable power of attorney has emerged in
recent years as a key component of "gay family planning.")  This
Massachusetts ruling, which involved an interpretation of the
Uniform Durable Power of Attorney Act, joins a recent Pennsylvania
decision, __In re Sylvester__, 409 Pa. Super. 439, in finding that
one appointed under such a power of attorney has priority to be
appointed a guardian in case of incapacity.  The court noted that
the Uniform Act is in effect in 28 states, the District of
Columbia, and the U.S. Virgin Islands.  Estate planners, take note!

Gay & Lesbian Advocates & Defenders, the Boston-based lesbian/gay
rights public interest law firm, submitted an amicus brief by Mary
Bonauto and Gary Buseck, urging the result reached by the court.
A.S.L.

Court Rejects Appeal of Heterosexual Rape Conviction Premised on
Defendant's Homosexuality

The Ohio Court of Appeals, 9th District, rejected an
ineffectiveness-of-counsel appeal from a rape conviction.  The
convicted rapist had complained that his attorney failed to consult
with him prior to trial, thus preventing him from asserting his
alleged homosexuality as a defense to the charge of heterosexual
rape.  __State v. Buchanan__, 1997 WL 537662 (Ohio App., 9th Dist.,
Aug. 20).  His "genitalia is not enough" defense, along with nine
other assignments of error, were overruled.

In the early hours of Jan. 1, 1990, victim Beverly Sturm was
warming up her car in the ally of a bar.  Larry Gene Buchanan
entered the car, shoved Sturm to the passenger side, brandished a
knife, and drove to a vacant parking space.  He cut open her
garments, raped her, threatened her and fled.  Buchanan, convicted
of raped, filed a petition for post conviction relief which was
denied without hearing.

Buchanan's assignment of error of interest here states that the
trial court erred in finding that there was no substantial
violation of defense counsel's duties to his client.  Buchanan
claims that his trial counsel's "absence to consult" with him prior
to trial prevented him from asserting his homosexuality as a
defense to the charge of rape.  He argues that papers he submitted
with this petition purportedly showing that he was discharged from
the armed forces for engaging in homosexual acts demonstrated that
he had no motive to rape a female, and indeed "could not produce an
erection to facilitate the elements of the charge."  

Judge Baird, writing for the court, affirmed the trial court's
finding that Buchanan points to no evidence that his counsel failed
to meet with him prior to trial, only a copy of his military
discharge for engaging in homosexual acts, which does not
constitute an evidentiary document containing sufficient operative
facts to establish that his counsel did not meet with him prior to
trial.  The judge also seemed puzzled why Buchanan would launch
such a defense in light of Buchanan's testimony that over the
period of the rape he and his ex-fiancee were in the process of
getting back together.

Buchanan, who apparently had his fill with "ineffectual" lawyers
and appeared pro se, filed his brief in excess of fifty pages,
notwithstanding the court rules that it cannot exceed thirty.  Only
the first thirty pages were accepted, which only contained the
first five of the ten assignments of error. The court disregarded
and overruled those remaining. K.J.R.

Convict Fails to Equate Lesbian Behavior with Violent Propensities

A Nevada death row inmate unsuccessfully appealed the denial of his
attempt to obtain and introduce evidence of a co-defendant's
alleged post-arrest aggressive homosexual conduct with multiple
partners while in prison.  __Gallego v. McDaniel__, 1997 WL 539043
(U.S.Ct.App., 9th Cir., Sept. 4).

Gerald Gallego and Charlene Williams committed a total of ten "sex
slave" murders in three states.  Williams pled guilty to two counts
of second-degree murder and was granted transactional immunity for
the remaining eight murders in exchange for her testimony against
Gallego.  Gallego sought court-ordered psychological testing of
Williams, calculated to discredit her testimony on
cross-examination.  Gallego intended to imply that "as a highly
intelligent lesbian dominatrix" Williams might have committed the
kidnapping and murder of six teenagers (five of them women) for
which Gallego was sentenced.  

The 9th Circuit Court of Appeals rejected Gallego's argument that
the trial court deprived him of his 6th Amendment right to confront
his accuser when it denied the request for psychological testing. 
The court reasoned that character evidence of Williams's alleged
"propensity for violent homosexual behavior" would only be
admissible to rebut any evidence Williams may have offered to show
that she was a peaceful person or not involved in the murders. 
Williams, however, made no claims of being incapable of instigating
the murders; nor was she the defendant on trial.  Therefore,
Williams didn't "open the door" to character evidence in rebuttal.

Gallego's request to introduce prison disciplinary reports about
Williams' behavior was also denied as the reports were multiple
hearsay, as well as for their irrelevance.  In rejecting Gallego's
claim that he was denied the right to confront his accuser, the
court observed that Williams "was subjected to a withering
cross-examination that reduced her to tears on at least one
occasion."  M.M.

N.J. Appellate Division Upholds Hate Crimes Statute

The New Jersey Appellate Division rejected a constitutional
challenge to the state's hate crimes law in __State v. Apprendi__,
1997 WL 530290 (Aug. 19).  The law authorizes a penalty enhancement
if the state can show by a preponderance of the evidence that the
defendant's criminal act was motivated by categorical bias;
included among the listed categories is "sexual orientation."  In
this case, the alleged bias was racial.  The defendant claimed that
the statute was unduly vague, a claim rejected out of hand because
the N.J. Supreme Court has previously rejected a vagueness
challenge of the statute.  The defendant's claim that the statute
offended due process by not requiring that proof of bias meet the
"beyond a reasonable doubt" standard required some more discussion
in Justice Humphreys's opinion.  "The flaw in the defendant's
argument," wrote Humphreys, "is that the Legislature has not made
racial bias an element of the crime.  The Hate Crime Statute acts
as a sentencing factor."  While due process requires that the state
prove beyond a reasonable doubt that the defendant's conduct came
within all specified elements of the underlying criminal charge,
there is no due process requirement that the state prove beyond a
reasonable doubt the factors considered by the court in sentencing
apart from those defining the underlying crime.  Humphreys found
that the hate crimes law does not itself define any elements of the
underlying crime of harassment, of which the defendant was charged. 
A.S.L.

California Appeals Court Rules Against City in Police Entrapment
Cases

The __Los Angeles Times__ reported Sept. 26 that the California
Court of Appeal, 4th District, denied an appeal by the City of
Santa Ana from a Superior Court decision about the propriety of a
"sting" operation carried out against patrons of an adult video
store.  

According to the newspaper report, plainclothes police officers
spent more than $4,000 watching "skin flicks" (mainly gay-oriented)
and "allowed themselves to be groped in unmarked police cars" in
order to entrap patrons of the store into committing public sex
offenses.  In a decision released Sept. 25 in __Discount Adult
Books & Video v. City of Santa Ana__, the appellate court affirmed
an award of $65,000 in attorney fees to the plaintiff, and "ruled
that the undercover sting operation improperly solicited and
encouraged the very behavior it aimed to stop," according to the
__Times__.  The court noted that the plaintiffs had taken steps to
prohibit lewd behavior on their premises, including employee
patrols and signs warning against illegal activities.  "There was
nothing more they could have done," wrote the court.  During the
police action, the employee patrols were suspended at police
direction, thus creating the environment for more sexual activity
that the police could then focus upon.  "Officers made eye contact
and engaged in other forms of nonverbal communication which
encouraged and incited lewd conduct," said the court.  Then the
police moved to shut down the plaintiff's business, the owner filed
suit in Orange County Superior Court, and successfully defended its
victory in the court of appeal.  The city attorney's office
announced it would file a motion for reconsideration by the court. 
A.S.L.

Ohio Court Holds That Municipal Gay Rights Ordinance Provides
"Public Policy" Basis for Wrongful Discharge Suit

Ohio does not have a state law banning employment discrimination on
the basis of sexual orientation, but the city of Columbus has an
ordinance to that effect.  In __Mier v. Certified Oil Company__,
No. 97CVH-01-0203 (Aug. 25, 1997), Franklin County Common Pleas
Judge Daniel T. Hogan refused to dismiss a claim for wrongful
discharge in violation of public policy brought by two lesbians who
were dismissed by the defendant company.  Hogan found that the
Columbus ordinance provided the necessary statement of public
policy to support a wrongful discharge tort claim.

Hogan's ruling contradicts a decision by the Ohio Court of Appeals
in the southern part of the state in __Greenwood v. Taft,
Stettinius & Hollister__, 105 Ohio App.3d 295 (1995), in which that
court held that the Cincinnati gay rights ordinance did not provide
a public policy basis for a wrongful discharge action.  The
__Greenwood__ court opined that only public policies of statewide
authority could serve as the basis for a state court tort claim. 
Hogan found this rationale to be inconsistent with the Ohio Supreme
Court's most recent formulation of the tort of wrongful discharge
in __Painter v. Graley__, 70 Ohio St.3d 377 (1994), in which that
court stated that evidence of "public policy" could be found in
sources other than state statutes, and that: "An exception to the
traditional doctrine of employment-at-will should be recognized
only where the public policy alleged to have been violated is of
equally serious import as the violation of a statute."

Applying the __Painter__ test, Hogan found that a municipal
ordinance that is not in conflict with the general laws of the
state "has the same legal force as a statute, and the violation
thereof has the same legal import as violation of a statute. 
Therefore, under the test set forth in __Painter__, a municipal
ordinance is a sufficient basis for public policy exception to the
employment-at-will doctrine."  Since the __Greenwood__ court never
went through this analysis suggested by the __Painter__ case, Hogan
found its holding unpersuasive, and refused to dismiss the wrongful
discharge claim.

If this ruling is affirmed in an appellate decision, it will set up
a conflict among the intermediate courts that might bring the issue
to the Ohio Supreme Court.  The potential significance of this
ruling is great.  In most jurisdictions, municipalities do not have
the authority to legislate state causes of action, and many
municipal gay rights ordinances consequently have little
enforcement authority behind them.  The public policy exception to
the employment-at-will rule has been adopted in many states.  If
municipal gay rights ordinances become widely accepted as the kind
of public policy declarations that can provide a basis for a tort
suit for wrongful discharge, lesbian and gay employees will have
won a significant means of redress for discriminatory discharges
from employment.

The plaintiffs are represented by Columbus attorney Elliott T.
Fishman, to whom thanks is due for sending us this unpublished
decision.  Copies of the decision can be obtained from Mr. Fishman
at 614-258-7777.  * * *  The potential significance of the Ohio
ruling is shown by the uproar among the gay community in Portland,
Oregon, about a Sept. 23 decision by a Multnomah County Circuit
Court judge, finding that Portland's municipal human rights
ordinance was not enforceable in state court.  The ordinance covers
two categories not covered under state law: sexual orientation, and
welfare status.  According to the __Portland Oregonian__ (Oct. 1),
Mayor Vera Katz has held special meetings with the city council and
representatives of the lesbian and gay community to talk about ways
to enhance enforcement of the ordinance without the assistance of
the state courts.  In addition considering a ballot initiative
(similar to one pending in Washington State) to enact a state-wide
gay rights law, other possibilities include creating a municipal
tribunal to enforce the civil rights ordinance.  A.S.L.

Securities & Exchange Commission Proposes New Rule Reversing
__Cracker Barrel__ Policy

In a notice published in the Federal Register on Sept. 26, the
Securities and Exchange Commission (SEC) has proposed a new rule on
shareholder proposals that would overturn a policy that had
excluded shareholders from forcing a vote on employment policies of
corporations.  The proposal would amend 17 CFR Part 240 so as to
allow shareholders to petition companies to include in their proxy
materials "employment-related proposals that raise significant
social policy measures."  In its __Cracker Barrel__ no-action
letter of a few years ago, the SEC had ruled that Cracker Barrel
Corp. was not required to include in its proxy materials a
shareholder resolution to adopt a corporate policy banning sexual
orientation discrimination.  The shareholder measure had been
prompted by Cracker Barrel's adoption of a policy of discharging
and refusing to hire openly lesbian, gay or bisexual employees. 
(Cracker Barrel has since formally rescinded the policy and claims
that it now employs gay people, but it has refused to reinstate the
people who were discharged under the policy.)

Under the proposed new policy, such resolutions could be presented,
but the threshold of shareholder support to place them into the
proxy materials would rise for repeated inclusions after
shareholder rejection, in order to meet the SEC's concern that
corporations not be burdened with duplicative proposals that have
little chance of passage.

The full text of the proposal can be found at 62 Fed. Reg. 50682
(1997 WL 590663).  Public comments are due to the SEC by Nov. 25,
1997, and can be sent via e-mail to the following address: <rule-
comment@sec.gov>  Comments submitted electronically should have the
following in the subject line: File No. S7-25-97.  Those comments
filed electronically will be posted on the SEC's web site:
www.sec.gov.  A.S.L.

Lambda Achieves Successful Resolution of Headstone Controversy

Lambda Legal Defense & Education Fund announced that it had
achieved a successful resolution of a dispute over the wording of
a headstone at Har Jehuda Cemetery in Upper Darby, Pennsylvania. 
Sherry Barone filed a lawsuit, represented by Lambda, in April,
charging the cemetery with breach of contract because the cemetery
would not install a stone on the grave of Barone's late life
partner, Cynthia Friedman, containing an inscription with the words
"life partner."  The cemetery claimed it was refusing to install
the stone because of conflicting instructions from Friedman's
surviving legal relatives, and that the cemetery did not itself
have any objection to the inscription.  Friedman, anticipating her
death, had taken all possible steps to execute legal documents
giving Barone authority to make decisions on her behalf, and had
specifically requested that the term appear on her marker.  Under
the terms of the settlement announced Sept. 5, the cemetery will
install the headstone and pay Barone $15,000 in compensation for
the breach of contract.  A.S.L.

Domestic Partnership & Same-Sex Marriage Notes

Oak Park, Illinois, will establish a registry for same-sex domestic
partners as a result of a 5-2 vote by the Village of Oak Park's
board of trustees early in September.  The vote did not authorize
any benefits for registrants.

San Francisco's ordinance barring the city from contracting with
companies that fail to provide domestic partner benefits to their
employees has been running into heavy weather.  The __San Francisco
Examiner__ reported Sept. 13 that the lack of vendors who comply
with the law has caused considerable problems since it went into
effect June 1, requiring the city to pay premiums for various
items, and that the Board of Supervisors is considering amending
the ordinance to address some of these problems.  Oral argument was
held Oct. 3 in __Air Transport Association v. City and County of
San Francisco__ in the U.S. District Court, N.D.Cal., before Judge
Claudia Wilken, concerning a claim by certain employers that the
ordinance is either invalid on its face or as applied to them.

Ruling from the bench, Cook County, Illinois, Circuit Judge Thomas
Durkin refused to stop Chicago's domestic partnership ordinance
from continuing in effect.  The ordinance, passed on March 19, took
effect May 16, and a lawsuit was filed by self-described "pro-
family" supporters claiming that the city lacked jurisdiction to
enact it.  To date, about thirteen city employees have filed for
coverage for their domestic partners.  Judge Durkin commented that
he had received unwelcome, unsolicited telephone calls related to
this decision. __Chicago Tribune__, Sept. 17; __Washington Blade__,
Sept. 26.

Following up on his veto of a bill that would have banned
recognition of same-sex marriages in Colorado, Gov. Roy Romer has
appointed a Commission on the Rights and Responsibilities of Same-
Sex Relationships.  The commission is charged with examining issues
of probate, property rights, inheritance, estates, and health-care
laws and policies, and to report back to the Governor with
recommendations for policy changes and legislation.  Rev. Jerry
Wintterowd, bishop of the Episcopal Diocese of Colorado, will serve
as chairman.  Other members include representatives of the lesbian
and gay community, religious leaders, corporate human relations
executives, and other community leaders (including a Republican
state legislator).  __Rocky Mountain News__, Sept. 12.

The large Knight-Ridder newspaper chain has authorized individual
newspapers in the chain to decide whether to offer domestic
partnership benefits to same-sex partners of their employees. 
Pursuant to this new policy, corporate employees of Knight-Ridder
and employees of the Miami Herald/El Nuevo Herald will be able to
apply for such coverage for their partners effective Jan. 1, 1998.

The Michigan State University Alliance of Lesbian, Bisexual, Gay &
Transgendered Students reports that a resolution extending benefits
eligibility to same-sex partners of faculty and staff has been
approved by the University.

Delegates to the California State Bar approved resolutions calling
on California's congressional delegation to work for repeal of the
Defense of Marriage Act (a federal law withholding recognition from
same-sex marriages for purposes of federal law and purportedly
allowing states to refuse to recognize lawful same-sex marriages
performed in other states), and calling on the state legislature to
amend California's marriage law so as to allow same-sex couples to
marry in the state.  Associated Press report, Sept. 17; __Daily
Journal__, Sept. 16.

The New York Appellate Division, 3rd Department, will hear oral
argument Nov. 6 in the appeal of __Storrs v. Holcomb__, 645
N.Y.S.2d 286 (N.Y. Sup. Ct., Tompkins Co. 1996), in which the trial
court rejected the petition by Phillip and Toshav Storrs for a
marriage license.  Phillip and Toshav, a same-sex couple who have
had a religious (Jewish) commitment ceremony, sought a marriage
license from the Ithaca, New York, city clerk.  The clerk and city
council had expressed willingness to issue the license, but a
contrary directive from state officials led them to deny the
application.  Curiously, the state has failed to intervene in the
case.

On Sept. 26, the Finnish Parliament voted 105-35 (with 59 absent)
to approve a report by the Committee of Laws supporting
establishment of a recognized partnership status for unmarried
(including same-sex) couples in Finland.  This passes
responsibility to the government for amending existing laws to
remove unequal treatment for such couples, according to an internet
posting from Finland.  

New Zealand's highest court, the Court of Appeal, heard oral
argument in September on a challenge to the denial of marriage
licenses to three lesbian couples.  Counsel for the plaintiffs
argued that the 1955 Marriage Act could be construed to allow same-
sex marriages, and should be so construed in light of the Bill of
Rights Act.  The government argued that if there is any right to
marriage, it clearly is not absolute, since the Marriage Act
forbids several types of marriage without question, and that
construing the Marriage Act to include same-sex couples would
contradict the common-law meaning of the term "marriage," which
should control since the term was not defined in the statute. 
__The Press__, Christchurch, NZ (Sept. 4).

The feared Hawaii constitutional convention referendum is again on
old.  Last November, Hawaii voters appeared at first to have
approved a ballot measure calling for a state constitutional
convention, at which opponents to same-sex marriage were expected
to seek a constitutional overruling of the Hawaii Supreme Court's
1993 same-sex marriage decision.  However, the state supreme court
ultimately determined that the measure had failed, as voters who
did not mark their ballots on that question should be counted as
"no" votes, and a majority of all those who voted was needed to
pass the measure.  Over the summer, a federal district judge ruled
that this decision by the Hawaii court had deprived the voters of
their rights, because they were not aware that abstaining on that
question would be counted as a negative vote.  Consequently, the
judge ordered that the state hold an immediate special election
(which was then negotiated to early December) on the issue.  On
Sept. 10, the U.S. Court of Appeals for the 9th Circuit stayed this
decision pending a hearing on the merits of the state's appeal of
the district court's order.  (Both federal decisions are not
published or available on electronic databases.)  Consequently, it
now appears that a referendum on a constitutional convention is
unlikely before the scheduled Nov. 1998 referendum on a proposed
constitutional amendment that would authorize the state legislature
to enact a law against same-sex marriage.  In the meantime, the
Hawaii Supreme Court has rejected a motion by the state to delay
ruling on its appeal in the same-sex marriage case until after the
referendum, and has also rejected a motion by the plaintiffs-
appellees in that case to expedite consideration.  No argument date
has been announced, but the Hawaii Supreme Court does not usually
schedule oral arguments on appeals and briefing is completed, so a
decision could be issued at any time.  A.S.L.

Law Schools Admit Military Recruiters As Solomon Amendment Takes
Effect

Recruiters from the Judge Advocate General Corps of the varies U.S.
armed services have begun calling law schools that had previously
barred the military to begin scheduling on-campus interviewing. 
Under the most recently-enacted version of the Solomon Amendment,
law schools stand to lose federal work-study and student loan money
if they continue to bar military recruiters, so law school
administrations and faculty have been deciding to let the
recruiters in.  A memorandum to law school deans from the
Association of American Law Schools (AALS) advised that the
Association will not consider a member school to be in violation of
Association by-law requirements to bar discriminatory employers if
schools that admit military recruiters on campus can show that they
stood to lose significant funding which could not be replaced from
other sources and that they are taking "ameliorative" steps to
assure a supportive environment for lesbian, gay and bisexual
students, faculty and staff.  Among the ameliorative steps
mentioned by the AALS is support for lesbian/gay/bisexual student
organizations and having openly lesbian/gay/bisexual faculty and
staff.  (AALS had never previously called on schools to seek out
openly gay faculty, so this might be seen, in some ways, as a
backdoor affirmative action initiative.  AALS regulations already
encourage schools to employ a diverse faculty in terms of race and
gender.)  A.S.L.

Law & Society Notes

The White House has confirmed that President Bill Clinton will be
the keynote speaker at Human Rights Campaign's National Dinner in
Washington on Nov. 8.  Clinton will be the first sitting U.S.
president to participate in this kind of public, gay movement
event.  The dinner this year will be honoring Ellen DeGeneres, who
will attend with her partner, Anne Heche.  __Washington Blade__,
Sept. 26.

The National Gay & Lesbian Task Force announced Sept. 19 that it
has amended its mission statement to read as follows: "The National
Gay and Lesbian Task Force works to eliminate prejudice, violence
and injustice against gay, lesbian, bisexual and transgendered
people at the local, state and national level."  The new mission
statement includes bisexuals and transgendered people for the first
time as part of the expressly-stated constituency of the Task
Force.  

The U.S. Senate Labor & Human Resources Committee has scheduled a
hearing on the Employment Non-Discrimination Act (ENDA) for Oct.
21.  A prior form of ENDA failed passage by one vote in the Senate
last year, when it was brought to the floor under a closed (no
amendments) rule in a deal to secure a similarly restricted floor
vote for the Defense of Marriage Act, which overwhelmingly passed. 
Sen. James M. Jeffords (R-Vt.), chair of the committee, is a co-
sponsor of ENDA.  Passage of ENDA in the Senate without the benefit
of a closed rule vote seems unlikely in this session, and there is
no effort to bring it to a vote in the House.  __Washington
Blade__, Sept. 26.

The recently-enacted gay rights law in Maine will not go into
effect as scheduled, because a group opposing the law has
apparently succeeded in obtaining sufficient signatures on
petitions to require a referendum.  The Christian Civic League
contends that their action is not anti-gay, but rather that they
are concerned about the creation of "special rights" for
homosexuals.  (Where have we heard that line before?)  The most
likely date for the referendum will be during the town meeting
season in March, according to a former Maine secretary of state
interviewed by the __Portland Press Herald__ (Sept. 21).  Two years
ago, Maine voters defeated a statewide referendum measure that
would have prohibited the enactment of gay rights laws, by a vote
of 53 percent to 47 percent.  According to news reports, the
question that will appear on the ballot will not be weighted with
objectionable language, but merely will ask whether Maine law
should prohibit discrimination on the basis of sexual orientation. 
__Washington Blade__, Sept. 26.

California gay rights, round 4? 5?  Anyway, the California state
legislature just keeps on passing bills that would add "sexual
orientation" to the Fair Employment and Housing Code.  Former Gov.
George Deukmejian vetoed two such bills, and present Gov. Pete
Wilson vetoed such a bill during his first term.  Subsequently,
Wilson signed a more limited bill, amending the Labor Code to add
a cause of action for employment discrimination on the basis of
sexual orientation, but with limited remedies and a cumbersome
procedure for enforcement. (That bill codified state court
decisions finding such a cause of action under a provision
protecting political activities of all employees; Wilson had relied
on those court decisions to state that the FEHC amendment was
unnecessary, so he had no real basis to object to the
codification.)  Now the legislature has passed AB 257, a new sexual
orientation amendment to the Fair Employment and Housing Code, and
as we go to press, speculation is rife but hard information is
lacking as to whether Wilson will veto again.  The margin of
passage was too narrow for a veto override to be feasible.  __San
Diego Union-Tribune__, Sept. 25.  

The New York State Administrative Board of the Courts has adopted
a statement of client rights that most be posted prominently in
every legal office, effective Jan. 1, 1998.  Included in the
statement, which will be codified in Part 1210 of 22 O.C.C.R.R., is
the following: "You may not be refused representation on the basis
of race, creed, color, religion, sex, sexual orientation, age,
national origin or disability."  This echoes an existing non-
discrimination requirement in the Code of Professional
Responsibility for New York Lawyers.

In an unofficially published disposition in __Goad v. Silverman__,
1997 WL 543380 (Sept. 5), the U.S. Court of Appeals for the 4th
Circuit found no constitutional violations in a decision by the
Medical College of Virginia to dismiss Dr. Steven Goad from a
residency program in psychiatry for engaging in inappropriate
sexual conduct toward women.  Goad, a self-professed fundamentalist
Christian, claimed, among other things, that he suffered
retaliation from Dr. Rochelle Klinger, a lesbian psychiatrist on
the faculty, in response to his outspoken objection to the
conception of homosexuality and the gay and lesbian community as
cultural equals of other respected cultures.  The court found that
there was ample evidence to support the district court's finding
that Goad was dismissed for his inappropriate sexual conduct toward
female staff members and clients.

A happy ending to a Massachusetts adoption case: In __Adoption of
Galen__, 680 N.E.2d 70 (Mass. 1997), the Massachusetts Supreme
Judicial Court instructed the Suffolk Probate & Family Court to
decide whether a home study was necessary in a second-parent
adoption case without any discrimination on account of the sexual
orientation or gender of the parents.  In this case, involving a
lesbian couple represented by Katherine Triantafillou and Joyce
Kauffman of Cambridge, the trial judge, who had initially denied
the couple's request to waive a home study, has now reversed that
decision, so the adoption of their son (who is the biological
offspring of one of the mothers) can go ahead without delay.

Last month we reported about Lambda Legal Defense Fund's
intervention with the Internal Revenue Service on behalf of Gay &
Lesbian Adolescent Support System (GLASS) of Greensboro, North
Carolina, a non-profit group that ran into problems attempting to
receive a determination of tax exempt status.  There is a happy
ending to the story.  On August 20, the I.R.S. issued a
determination of exempt status under sec. 501(c)(3) for GLASS. 
Lambda Staff Attorney David Buckel represented GLASS in securing
the new determination of tax status.  

The __Press-Enterprise__ in Riverside, California, reported Sept.
24 that the Hemet school system has amended its policy against
discrimination to include "sexual orientation."  The 4-2 vote in
favor of the amendment came after a gay student from West Valley
High School testified before the board that he almost committed
suicide last year because of verbal harassment due to his sexual
orientation.

The openly-gay Chairperson of the U.S. Maritime Commission, an
independent administrative agency of the federal government, Harold
J. Creel, has issued a directive banning sexual orientation
discrimination within the agency and establishing a mechanism to
deal with discrimination complaints.  According to a survey by the
__Washington Blade__, approximately 3/4 of the federal civilian
workforce is now covered by administratively promulgated policies
banning sexual orientation discrimination, including 14 out of 17
federal departments (the laggards being the Department of Defense,
the Department of the Army, and the Department of the Air Force),
and 34 out of 72 administrative agencies.  __Washington Blade__,
Sept. 12.

The Administrative Board of the National Conference of Catholic
Bishops issued a pastoral letter that received nationwide press
coverage on Oct. 1, urging Catholic parents not to reject their
lesbian or gay children.  The bishops apparently accept the
contention that a homosexual orientation is not a matter of choice. 
"All in all," they wrote, "it is essential to recall one basic
truth.  God loves every person as a unique individual.  Sexual
identity helps to define the unique person we are. . . God does not
love someone any less simply because he or she is homosexual."  The
document appears to be a departure from established Church
doctrine, although it still preserves a distinction between
acceptance of gay people and toleration of gay sex.  The letter
states that sexual activity between same-sex partners is immoral,
and advises parents to urge their gay children to lead a chaste
life, but also urges them not to break off contact with their
children should the children reject this suggestion.  __Associated
Press__, Oct. 1.  

The San Antonio, Texas, city council voted on Sept. 11 to end city
funding for the Esperanza Peace and Justice Center, a non-profit
organization that has presented controversial theater productions
and exhibits, many of them lesbian and gay-themed.  The executive
director of the Center commented that her organization had been a
target for conservatives for many years.  A lawsuit may be brewing. 
__Washington Blade__, Sept. 26.

Although the University of Notre Dame, in Indiana, has denied a
request to add "sexual orientation" to its formal non-
discrimination policy, University President Rev. Edward A. Malloy
issued an "open letter" to the university community stating that
gay and lesbian people are welcome at Notre Dame.  Malloy explained
that the University hesitated to include "sexual orientation" in
what could be a legally-binding non-discrimination statement, for
fear that a court in a discrimination case would depart from the
moral teachings of the Catholic church in interpreting or applying
such a provision.  __Chronicle of Higher Education__, Sept. 3.

State laws authorizing notification of local police departments or
members of the public when a convicted sex offender is released to
live in the community have been upheld as constitutional recently
in two major test cases: __E.B. v. Verniero__, 1997 WL 473107 (3rd
Cir., Aug. 20, 1997), and  (2nd Cir., Aug.  , 1997).  As these laws
have gone into effect in various states, gay rights organizations
have reported receiving calls from gay men who either fear that
their past run-ins with the law arising from restroom or park
cruising activities may subject them to the laws, and in some
areas, individuals arrested on such charges decades ago have
received notices requiring them to register their names with local
policy.  Although some trial judges have been sympathetic to
arguments that, at least as to past offenders, these laws may
impose improper ex post facto penalties, in __E.B.__ the 3rd
Circuit held that the community notification provisions of New
Jersey's law did not inflict "punishment," although as a
constitutional matter the state bore the burden of proof that such
notification was justified in any particular case.  

President Clinton announced Oct. 1 that he has appointed Virginia
M. Apuzzo, presently the Associate Deputy Secretary of Labor, to be
the chief administrator of the Executive Office of the President as
an "assistant to the president."  This is the highest-ranking
executive branch job that one can attain without Senate
confirmation, and makes Apuzzo, a former executive director of the
National Gay & Lesbian Task Force, the highest-ranking openly
lesbian or gay official in the federal government.  Apuzzo will be
responsible for the safe and efficient functioning of the White
House operation, including supervision of White House security. 
Prior to her federal appointment, she had served in several
executive positions in the administration of New York Governor
Mario Cuomo, including Commissioner of Civil Service.  __Washington
Times__, Oct. 2.  

The Court of Appeal of Louisiana upheld a sentence of life
imprisonment without parole for Ronald Graves, convicted of the
first degree murder of Joseph Balog, a gay man, as part of a "fag-
bashing" incident in the New Orleans French Quarter.  __State v.
Graves__, 1997 WL 578275 (La.App., 4th Cir. Sept. 10). A.S.L.

European and United Kingdom Legal Developments

European Convention on Human Rights:  Full text Judgments of the
European Court of Human Rights (http://www.dhcour.coe.fr) and
Reports of the European Commission of Human Rights
(http://www.dhcommhr.coe.fr) are now available via the Internet.

European Community Law:  The draft 1997 Treaty of Amsterdam, once
signed and ratified, will insert a new Article 6a (see 1997 LGLN
104 for the text) into the Treaty establishing the European
Community (1957 Treaty of Rome) which will expressly authorize, but
not require, new European Community legislation prohibiting sexual
orientation discrimination.  Any legislation will require the
consent of all 15 Member States and will probably be confined to
employment and social security (the scope of existing EC sex
discrimination law).  Regardless of when legislation is adopted,
Article 6a will have an immediate symbolic impact by listing sexual
orientation alongside sex, racial or ethnic origin, religion or
belief, disability and age in what is effectively the
"Constitution" of the European Community. 

On July 9, the EC's European Court of Justice (ECJ) in Luxembourg
heard oral argument in __Grant v. South-West Trains Ltd.__ (Case
C-249/96) (see 1997 LGLN 48), the first case of anti-lesbian or
anti-gay discrimination to reach the Court.   (The Opinion of
Advocate General Elmer is expected on September 30, and the
Judgment of the Court in early 1998.)  Cherie Booth QC, wife of
British Prime Minister Tony Blair, presented the case for Lisa
Grant.  Ms. Booth argued that "but for" Grant's sex (i.e., if Grant
were an unmarried man living with a female partner rather than an
unmarried woman living with a female partner), Grant would be paid,
under the voluntarily adopted policy of her employer, about 1000
pounds more per year (the approximate value of the rail travel
benefits her partner is currently denied).  Grant's employer has
thus violated Article 119 of the Treaty of Rome, which provides
that "men and women should receive equal pay for equal work."  Ms.
Booth stressed that the case is not concerned with marriage as
such, or with differential treatment of married and unmarried
couples, and that a decision in favour of Grant would not prevent
employers from taking marital status into account.  In the
alternative, Ms. Booth argued that "sex" in Article 119 should be
interpreted as including "sexual orientation."

Counsel for South-West Trains argued that to characterize the case
as one of sex discrimination is "artificial," "unnatural" and "a
fallacy." Grant's argument is "ingenious" but is "built on sand"
and was rejected in __DeSantis v. Pacific Telephone & Telegraph
Co.__ (U.S., 9th Cir. 1979).  An ordinary person would say that the
case is about discrimination against "homosexuals."  Grant is
treated differently, not because she is a woman, but because she
and her partner are of the same sex.  Article 119 plainly does not
prohibit sexual orientation discrimination, which in any case
South-West Trains does not practise.  South-West Trains has merely
withheld a "family benefit" from a same-sex couple, which is not
socially recognized as a "family."

Counsel for the U.K. Government stressed that the (new Labour)
Government is opposed to unfair discrimination of any kind and
welcomes the new Article 6a (see above), but that the issue in this
case should be dealt with by new legislation under Article 6a
rather than a "strained" extension of existing laws against sex
discrimination.  The "true" ground of discrimination is sexual
orientation, because an unmarried man living with a male partner
would be treated in the same way as Grant.  __Loving v. Virginia__
(U.S. Sup.Ct.) and __Baehr v. Lewin__ (U.S. Hawaii Sup. Ct.) are
not persuasive because they turn on specific features of the U.S.
and Hawaii Constitutions.

Counsel for the European Commission (the "executive branch" of the
EC) argued that Grant was attempting to extend the notion of
"spouse," and that employment law cannot be used to extend family
law.  Consensus in the EC on the notion of "spouse" only includes
unmarried opposite-sex partners and not same-sex partners.  The
Commission proposed a compromise:  The Court should hold that
Article 119 does prohibit discrimination based on an employee's
sexual orientation, but does not prohibit denial of a benefit to an
employee's partner "where access to [the] benefit is based on
notions which derive from the family law of the Member State."  The
Commission's "individual vs. couple" distinction reflects the EC's
desire not to get involved in family law issues (which are left to
national law), but implies that the Commission will support the
applicant in the ECJ's next lesbian and gay rights case, __The
Queen ex parte: Terence Perkins v. Secretary of State for Defence__
(Case C-168/97) (see 1997 LGLN 48), in which an individual is
challenging the U.K. armed forces' ban on gay, lesbian and bisexual
employees.

[Late-breaking development: On Sept. 30, Michael Elmer, an advocate
general of the court, issued a report concluding that Grant should
win her claim on grounds of sex discrimination in violation of
European community law.  According to press reports, the advocate
general's report usually forecasts accurately the ultimate vote by
the full court. A.S.L.]

United Kingdom Law:  On April 11, in __Re W (a minor) (adoption:
homosexual adopter)__, [1997] 3 All E.R. 620 (High Ct., Fam. Div.),
Singer J. held that the (England and Wales) Adoption Act 1976
"permits an adoption application to be made by a single applicant,
whether he or she at that time lives alone, or cohabits in a
heterosexual, homosexual or even an asexual relationship with
another person who it is proposed should fulfil a quasi-parental
role towards the child."  He rejected the arguments of counsel for
the child's mother (who objected to adoption by a lesbian woman
who lives with her female partner) "that it is inconceivable that
Parliament in 1976 would have contemplated adoption by one of a
homosexual cohabiting couple," or that such an adoption should be
declared "contrary to public policy."  "If there is to be a line
drawn as a matter of policy to prevent homosexual cohabiting
couples or single persons with homosexual orientation applying to
adopt, then it is for Parliament so to conclude and with clarity to
enact."  The decision confirms the absence of any statutory bar to
adoption by a gay, lesbian or bisexual individual, living on their
own or with a same-sex partner.  But s. 14(1) of the 1976 Act
clearly limits joint adoption to married opposite-sex couples, as
required by Article 6(1) of the European Convention on the Adoption
of Children (E.T.S.
No. 58).  Joint residence orders under the Children Act 1989 serve
as a partial substitute for joint adoption.

On June 27, in __C. v. R.__ (No. EAT/1063/96), the Employment
Appeal Tribunal held that the (Great Britain) Sex Discrimination
Act 1975 does not need to be amended and can be interpreted as
prohibiting discrimination against transsexual employees who have
declared their intention to undergo gender reassignment.  Under the
ECJ's decision in __P. v. S. & Cornwall County Council__ (see 1996
LGLN 82), U.K. law must prohibit such discrimination.  __C. v. R.__
has the effect of extending __P.__ to private sector
employees in the U.K.

On July 23, in __Fitzpatrick v. Sterling Housing Association Ltd.__
(CCRTF 96/0638/E), the Court of Appeal (of England and Wales) held,
by 2-1, that Martin Fitzpatrick cannot succeed to the tenancy of
his deceased male partner's private sector apartment.  Fitzpatrick
and John Thompson had lived together in the apartment for 18 years. 
During the final 8 years, Fitzpatrick provided constant care for
Thompson, who had become a tetraplegic.  The decision turned on
whether the succession rights
conferred by the (England and Wales) Rent Act 1977 (First Schedule)
on the "surviving spouse" (which includes "a person who was living
with the original tenant as his or her wife or husband"), or "a
member of the original tenant's family ...
residing with him ... [for 2 years] before his death," could be
interpreted as covering Fitzpatrick.  

For the majority, Lord Justice Waite held that Fitzpatrick could
not be a "spouse" because the Court was bound by its own
interpretation of similar statutory language in __Harrogate Borough
Council v. Simpson__, [1986] 2 Fam. L. Rep.91 (a public sector
housing case).  As for being a "family member," Fitzpatrick
certainly qualified "[i]f endurance, stability, interdependence and
devotion were the sole hall-marks."  And an interpretation covering
"all sexual partners, whether of the same or opposite sex" would be
"consistent ... with social justice."  But the concept of "family"
used by English law in this area required ties of kinship, adoption
or marriage, with the only relaxation being for heterosexual
cohabitants.  Although this "restrictive extension ... is out of
tune with modern acceptance of the need to avoid any discrimination
on the ground of sexual orientation," only Parliament should decide
whether "[f]riends of long standing" should also be included, along
with same-sex partners, and how the competing rights of landlords
should be reconciled.  "The [trial] judge was right... to resist
the temptation to change a bad law by giving it a new linguistic
twist."  It is up to Parliament to reflect "the spirit of our times
... which recognizes the value of all
abiding relationships, the heterosexual, the lesbian, the gay - or
even those which are not sexually based at all."  Lord Justice Roch
added that "the ordinary popular meaning" of the phrase "member of
the original tenant's family" would not include Fitzpatrick.

Lord Justice Ward dissented, after citing a number of Canadian and
U.S. cases, including __Braschi v. Stahl Associates Co.__ (U.S.
N.Y.)  He said that he would strain to give the statute a
non-discriminatory interpretation.  "To exclude same-sex couples
from ... the Rent Act proclaims the inevitable message that society
judges their relationship to be less worthy of respect, concern and
consideration ..."  He thus concluded that, "in terms of love,
nurturing, fidelity, durability, emotional and economic
interdependence . . . there is no essential difference between a
homosexual and a heterosexual couple and ... that [Fitzpatrick] had
lived with the deceased tenant as his husband or wife."  In the
alternative, he concluded that "at least they were living as
members of a family."  "[T]he ordinary
man is liberated enough to accept in 1997 ... that the bond between
[Fitzpatrick] and the deceased was de facto familial."  R.W. * * * 
The __Times__ of London reported Aug. 27 that the British
government was "poised to give hundreds of foreign nationals in
homosexual relationships with British citizens the right to settle
in the UK following a Home Office review of immigration laws."  The
newspaper reported that the expected policy change would also apply
to unmarried heterosexual couples in long-term relationships.  The
paper reported that on Aug. 26, a Court of Appeal judge had
adjourned a case in which a 39-year old Brazilian was appealing a
ruling that he had to leave Britain for his home country, despite
his long-term relationship with a British citizen.  The judge
decided to postpone consideration in light of reports that the Home
Office was planning a change of policy.  The recently-elected
Labour government campaigned for office on a pledge of support for
equal rights for lesbians and gay men, and the prime minister's
wife, as noted above, argued a claim for domestic partnership
benefits before the European Court of Human Rights over the summer. 

The London __Daily Telegraph__ reported Sept. 22 that the
government is offering lesbian and gay civil servants the option to
extend their pension benefits to their same-sex partners, together
with unmarried heterosexual partners.  The extension will require
the civil servants to make a small extra pension contribution.

The London __Times__ reported Sept. 27 that the gay members of
Parliament will host a gay cabaret night at the party's annual
conference, at the hotel where Prime Minister Blair and the cabinet
will be staying.  The event, which is expected to draw many of the
Labour MPs (who have been invited with flyers urging "Be gay for a
night"), will be similar to the traditional Welsh and Scottish
evenings that have been held during past party conferences.  How
far we have come. . .

The London __Guardian__ reported Sept. 25 that the Amsterdam
(Netherlands) City Council voted to allow its gay employees to
apply for 5 days extra holiday for a honeymoon with their domestic
partners.  To qualify, council workers must sign a cohabitation
agreement and participate in a partnership ceremony at town hall.

The International Lesbian & Gay Association (ILGA) relayed a report
from the Antwerp Gazette that the Ghent, Belgium, Appeals Court has
ruled that sadomasochistic sex that is fully consensual and
includes minimal violence is not a violation of the criminal law. 
Ruling contrary to a recent decision by the European Court and an
earlier ruling under Belgian law by the Liege Appeals court, and
focusing solely on the facts in the case before it, the court found
that the adult participants had no intent to commit the offense of
assault, and thus the defendants, the manager and certain members
of a sex-club, should not be found guilty on the assault charge
(although the manager was found guilty of other charges concerning
the operation of a sex-club.) 

ILGA also reported in its Euroletter 53 (9/97) that the Luxembourg
Parliament voted on June 17 to adopt a civil rights law that
forbids discrimination based on sexual orientation (together with
many other categories).  The bill was modelled after the French
civil rights law.  The vote in favor was 47-0, with 10 abstentions. 


ILGA Euroletter 53 also reported that the Dutch Supreme Court has
ruled against a petition by a lesbian couple to allow each of the
women to adopt her partner's children.  The Sept. 5 ruling in
__Petitions of Van Ijzendoor & Louman__ will be appealed to the
European Court of Human Rights.  

ILGA Euroletter 53 also reported that San Marino repealed its
criminal penalties for homosexual conduct on July 9.  The age of
consent is set at 14, but it is an offense under San Marino law to
"incite a minor under 18 years to sexual corruption," leaving some
doubt as to the effective age of consent for gay sex.  A.S.L.

Israel Supreme Court Supports Broadcast of Gay Documentary

A unanimous panel of the Israel Supreme Court ruled Sept. 21 that
the Minister of Education could not block broadcast of a
documentary about lesbian and gay youth that had been approved for
broadcast by the Educational TV station and the Education Ministry. 
Minister Zevulun Hammer, responding to pressure from religious
conservatives, had declared that the program was inadequately
balanced because it did not include any spokespersons for the
viewpoint that homosexuality was immoral and harmful.  The program
includes interviews with two gay teens in front of a youthful
audience, followed by a discussion between the audience and the
interviewees.  In an opinion for the court, Justice Kedmi wrote
that "the big picture which emerged from the encounter was that
gays and lesbians were just like other young people, and that the
characteristics which nature imbued in them did not remove them
from the mainstream."  A rabbi who serves as Deputy Minister of
Health was quoted in the press as deploring the decision,
criticizing the Supreme Court for lacking Jewish ethics, and
taunting the Court by calling for appointment of "a declared
homosexual to the Supreme Court, or that one of them, if there are
any, will come out of the closet. . .  Why not?  There is nothing
to be ashamed of.  The restraints have been lifted and the
perversion has been allowed."  The challenge to the Education
Minister's decision was litigated by the Association for Civil
Rights in Israel, that country's counterpart to the American Civil
Liberties Union.  __Jerusalem Post__, Sept. 22; __Ha'aretz__, Sept.
22 (posted to the internet by the Agudah, the Association of Gay
Men and Lesbians in Israel).  A.S.L.

Tokyo High Court Rules Against Anti-Gay Discrimination

On Sept. 16, the Tokyo, Japan, High Court rejected an appeal by the
Tokyo city government of a lower court ruling against anti-gay
discrimination by a government-operated youth hostel.  __Washington
Blade__, Sept. 26.  The case stemmed from a 1990 incident when the
operator of the hostel ejected two gay men who had complained about
harassment by other youths in the hostel.  The Tokyo Board of
Education, which has supervisory authority over youth hostels,
ruled that gays must be excluded from the hostels as their presence
would interfere with "sound development of youth."  The Tokyo
District Court ruled that this was unlawful discrimination.  A.S.L.

Professional Notes

Boston-based Gay & Lesbian Advocates & Defenders announced the
appointment of Gary Buseck as its new executive director, effective
Nov. 3.  Buseck, a long-time GLAD supporter, former board member
and active cooperating attorney, is a leader of the lesbian and gay
bar in Boston.  He participated on behalf of GLAD in litigating
some of the most important gay rights and AIDS cases in New England
in recent years.  Buseck will resign his partnership with
McDonough, Hacking & Neumeier to take the GLAD position.  He earned
his law, bachelors and masters degrees from Boston College, and
attended a Jesuit seminary prior to attending law school.

The ACLU has announced the appointment of Washington attorney
Christopher E. Anders as legislative counsel responsible for gay
and lesbian rights and the rights of people with HIV/AIDS. 
Anders's immediate agenda is passage of the Employment Non-
Discrimination Act (ENDA), combating efforts to mandate HIV name-
reporting, and joining efforts to narrow state Megan's Law sex-
offender registration requirements that are currently sweeping gay
men into their net.  Anders, who was previously employed as an
associate at Dunaway & Cross, was honored by Whitman-Walker Clinic
for outstanding pro bono work on behalf of persons with HIV/AIDS.

Dane County, Wisconsin, Circuit Judge George Northrup died from
cancer at age 53 on Sept. 11.  Northrup, who was quietly openly gay
while serving on the bench, made a public announcement about his
sexual orientation in June, at which time he gave an extensive
interview to the __Milwaukee Journal Sentinel__ about his life as
a gay judge.

A symposium titled "Constructing Family, Constructing Change:
Shifting Legal Perspectives on Same-Sex Relationships" was held at
Temple University Law School in Philadelphia on Oct. 4.  The
symposium was co-sponsored by the __Temple Political & Civil Rights
Law Review__, the Temple Law School Gay and Lesbian Alumni/ae, and
the Temple Law Students for Lesbian, Gay, Bisexual and Transgender
Rights.  Papers delivered at the symposium will be published in a
subsequent issue of the Review.  More than a dozen prominent
professors, judges and practitioners were listed as panelists.
A.S.L.

AIDS AND RELATED LEGAL NEWS BRIEFS 

Condom Use No Defense to Aggravated Assault Charge Stemming From
Consensual Sex

Rejecting the use of a condom as a defense for not disclosing one's
HIV+ status to a sexual partner, the U.S. Court of Appeals for the
Armed Services affirmed  the aggravated assault  conviction of an
Aviation Electrician's Mate, James E. Klauck.   Klauck was also
convicted of violating a lawful order by not telling a female Petty
Officer his HIV+ status.  __U.S. v. Klauck__, 1997 WL 539564 (Sept.
3).   

Prior to September 30, 1994, Klauck tested positive for HIV.  The
evening of September 30, he "sought out Petty Officer M for the
purpose of engaging in sexual intercourse."  Both of them drank
heavily that evening.  Prior to intercourse Petty Officer M told
Klauck to use a condom.  Another Petty Officer interrupted before
climax was reached.  Klauck was convicted of violating Articles 92
and 128 of the Military Code of Justice and sentenced to forfeiture
of $3,000 in pay, 90 days in confinement, a demotion, and a
bad-conduct discharge, with 45 days of confinement subsequently
suspended.  As of the trial,  Petty Officer M had not tested
positive for HIV.

Relying heavily on the testimony of Captain Mitchell Carl, MD, who
was qualified as an expert in infectious diseases, Chief Judge Cox
found that Klauck's actions were "likely to produce death or
grievous bodily harm."  Klauck had been counseled
about transmission of HIV and was instructed to warn future
partners about his medical status.  He was ordered not to engage in
sexual contact without the use of a condom and to inform any sexual
partner that condom use would not guarantee that the virus would
not be transmitted.  Dr. Carl testified that there is a higher risk
of transmission of the virus from a male to a female.  He further
testified that it is possible to transmit HIV without ejaculating
and that a condom, even if used properly, has a 6% breakage rate. 
[Note: A recent study by the National Institute of Child Health and
Human Development on pregnancy protection reported by the CDC
National AIDS Clearinghouse found that latex condoms broke or
slipped off 1% of the time during intercourse.]

Judge Cox wrote that "anytime a person willfully or deliberately
exposes an unsuspecting victim to a deadly or debilitating disease
such as HIV. . . the actor may be liable for an aggravated assault
-- or worse. . ."         The ruling stated that the decision was not
based on the "statistical probability" of HIV infection, but on the
"likelihood of the virus causing death or serious bodily harm if it
invades the victim's body."  D.R.S.

Consent No Defense to Military Prosecution of HIV+ Soldier for
Engaging in Unprotected Sex

The U.S. Court of Appeals for the Armed Forces upheld the
conviction of a naval officer for aggravated assault based on his
having unprotected sex after learning he was HIV+.  __U.S. v.
Bygrave__, 1997 WL 530246 (Aug. 28).  

Michael Bygrave tested positive in 1986 and afterward had
unprotected sex with two women, both naval officers.  Bygrave was
convicted for aggravated assault on both women.  Bygrave challenged
his conviction of assault on the second woman, identified as "C",
whom he subsequently married.  Bygrave argued that C knew of his
HIV status, and that she had consented to having unprotected sex
with him.  Bygrave also argued that the conviction violated his
constitutional right to privacy.  The court rejected Bygrave's
consent argument, distinguishing the crime of aggravated assault
from the crime of rape, where lack of consent is an element of the
case.  In a case where the act is likely to produce grievous bodily
harm or death, the court reasoned, consent is a legal
impossibility.  Using similar reasoning, the court rejected
Bygrave's argument that C's consent negated the requirement that
the act be perpetrated with unlawful force or violence.   In other
words, C's consent to unprotected sex with Bygrave, given the risk
of grievous bodily harm or death, was not legally cognizable.  The
court also rejected Bygrave's public policy arguments against the
assault statute as it was applied to him, deferring to Congress to
deal with balancing the competing interests involved in the
criminalization of consensual sex.

Turning to the constitutional argument, the court held that Bygrave
had not show a violation of his privacy rights.  Acknowledging the
protection of privacy of some aspects of reproductive behavior
created by __Griswold v. Connecticut__, 381 U.S. 479 (1965) and the
holding of __Bowers v. Hardwick__, 478 U.S. 186 (1986) that there
is no generalized right to sexual intimacy between consenting
adults, the court noted that between these two standards, "the
constitutional terrain, . . . as it has been laid out by the
Supreme Court, grows more difficult to negotiate."  Finding no
clear precedential answer, the court turned to a balancing test,
weighing the governmental interest at stake against the impingement
on the individual's rights.  The court came quickly to the
conclusion that the government has a legitimate interest in the
health and life of the victim, including an interest in her health
and welfare as a soldier in the military's employ, an interest in
avoiding costly medical care for her, and a general governmental
interest in public health.  The court explicitly avoided taking a
stand on the question of whether the prosecution of a servicemember
for transmission of HIV to a civilian would violate a
constitutional privacy right.  D.W. 

Bankruptcy Court Rules on Fear of AIDS Claim

When Mychael Robinson, a gay man, sued Alan Louie, his former
partner, for fraud, intentional infliction of emotional distress,
breach of partnership and breach of fiduciary duty, among other
claims, stemming from exposure to HIV, Louie filed a petition in
bankruptcy, seeking protection of the automatic stay of legal
claims.  But the ploy was unsuccessful.  __In re Alan Louie,
Debtor__, 1997 WL 566318 (Bankr. N.D.Cal., Sept. 2).  Bankruptcy
Judge Montali determined that Robinson claim for sexual battery was
sustainable as a matter of law and, as an intentional tort claim,
was not subject to the bankruptcy stay.

Robinson and Louie met and began dating in 1991, continuing their
dating relationship until 1995, when they exchanged commitment vows
and moved in together.  They pooled all their assets and agreed
that Louie would be the primary earner and Robinson would be
responsibility for maintaining the household, so Robinson closed
his businesses and Louie agreed to support him.  The men had
previously engaged only in protected intercourse, but after moving
in together, Louie told Robinson that condoms were not necessary
and actually removed a condom from Robinson during sex.  In
December 1995, Robinson discovered bottles of AZT hidden in Louie's
house, confronted Louie, learned that Louie had been HIV+ for more
than a year.  The relationship ended.  Robinson has continued to
test negative for HIV.

After Louie filed a chapter 7 bankruptcy petition, Robinson brought
this proceeding for a declaration that monetary liability arising
from his lawsuit would be nondischargeable under sec. 523(a)(6) of
the Bankruptcy Code.  Montali found that Louie's knowledge of his
HIV+ status gave rise to a duty under state law to disclose his
status to any sexual partners; the court had to determine whether
Robinson could state a cause of action for intentional infliction
of emotional distress under the above-stated facts, since an
intentional tort claim would be nondischargeable.

In __Kerins v. Hartley__, 27 Cal.App.4th 1062, 33 Cal.Rptr.2d 172
(2d Dist. 1994), the court dismissed an emotional distress claim
brought against the estate of a doctor who had died from AIDS by a
patient who persistently tested HIV-negative.  The court in that
case found that because the plaintiff tested negative more than six
months after possible exposure (and first learned of her exposure
more than six months after it occurred), she could not have
reasonably feared contracting AIDS from the exposure, and opined
that only somebody who had been actually infected could sustain an
action for negligent or intentional infliction of emotional
distress for fear of contracting AIDS.  Since Robinson has
continued to test negative, the court found that any continuing
fear by Robinson would be unreasonable at this point.

However, the court found that Robinson had set forth the necessary
allegations for a fraud action, which would provide the basis for
a nondischargeable debt, although Robinson had failed to plead the
necessary damages flowing from the fraud (once the emotional
distress aspect of his claim was rejected).  The court allowed
Robinson to amend his complaint to allege "actual damages" arising
from the fraud.

Turning to the sexual assault and battery claims, Montali found
that an assault claim could not be sustained, because Robinson did
not know, when he consented to unprotected sex with Louie, that
Louie was HIV+.  However, the very lack of knowledge vitiated his
consent, leaving a facially sufficient claim for battery (or
unwanted sexual touching).  "By engaging in unprotected sexual
contacts without informing his partner of his HIV-positive status,
a sexually offensive contact resulted," wrote Montali, and this
would be a nondischargeable claim, since it is a "wrongful act. .
.done intentionally, [which] necessarily produces harm."

Louie had argued that __Kerins v. Hartley__ would also bar this
battery claim under California law, as such a claim had been
dismissed as part of that case.  But Montali found the two cases
significantly distinguishable, noting that __Kerins__ dealt with a
"technical battery" of an HIV+ doctor operating on a patient
without disclosing his status, presenting minimal risk of actual
transmission, while this case involves unprotected sexual contact,
an "inherently harmful" activity when one partner is HIV+.  The
court found that the "policy reasons bolstering __Kerins__ do not
exist here," and that Robinson would be entitled to recover any
actual damages caused by the sexual battery, although not damages
for emotional distress.

In a separate opinion, which has not appeared on electronic
databases, the court ruled on the breach of partnership claim. 
A.S.L.

Illinois Appeals Court Revives Fear of AIDS Claim

Reversing a decision by a trial judge to dismiss a claim for
emotional distress damages due to fear of contracting AIDS, the
Appellate Court of Illinois, 1st Dist., ruled Sept. 19 in __Natale
v. Gottlieb Memorial Hospital__, 1997 WL 580754, that Robert Natale
had stated a claim when he alleged that Dr. Gerard Sublette had
used a non-sterile, contaminated scope on him during a colonoscopy
procedure, thus exposing him to potential infection with HIV.  The
trial court, finding that under Illinois law a plaintiff must
allege actual exposure to HIV to survive a motion to dismiss on
such a claim, dismissed the case, because Natale did not allege
specific facts to support a claim of possible HIV exposure.  
In an opinion reversing and reviving the claim, Justice South found
that it was sufficient for plaintiff to allege in the complaint
that he "was exposed to infections including Hepatitis A, B and C,
and HIV and other transmissible diseases."  "Whether plaintiff can
prove that he was exposed to HIV is not the question before this
court," wrote South.  "If defendants had wished to question whether
facts exist to support plaintiff's allegations, they should have
filed a motion for summary judgment. . .  However, this is not the
course that defendants chose.  They challenged the legal
sufficiency of plaintiff's complaint. . ., and thus, admitted
plaintiff's factual allegations for the purpose of their motion." 
Tactics!  Tactics!  A.S.L.

Alabama Supreme Court Sustains Products Liability and Negligence
Claims Against Hardee's in AIDS Fear Case, but Remands for New
Trial

In __Flagstar Enterprises, Inc. v. Davis__, 1997 WL 564475 (Sept.
12), the Alabama Supreme Court reversed and remanded a $250,000
jury verdict against the franchise operator of a Hardee's
Restaurant who was sued when a customer claimed to have developed
fear of contracting AIDS due to exposure to blood found in a
styrofoam package containing a biscuit with gravy that she had
purchased and partially consumed.  The reversal was not because the
court found that Maureen Davis had no valid legal claim against the
defendant, but rather due to a lack of evidence supporting one of
her alternative legal theories of recovery, which undermined the
jury's general verdict and required dismissal of one of her claims
as a matter of law.  (This case has a haunting resemblance to
__Montalbano v. Tri-Mac Enterprises of Port Jefferson, Inc.__, 652
N.Y.S.2d 780 (Sup. Ct., Suffolk Co. 1997), in which the court
dismissed a fear of AIDS claim brought by a fast-food store
customer who allegedly discovered blood on his french fries).

Davis works at the cash register at a BP gas station.  One of the
other employees customarily stops at the Hardee's to pick-up
breakfast food for the other employees on the morning shift.  On
Nov. 30, 1993, the other employee brought back a container with the
biscuit and gravy that Davis had ordered.  She placed it under a
counter and reached in without actually looking in the container,
and had apparently consumed some of the biscuit (without ever
looking at it) between dealing with customers.  When she finally
did look at the opened container, she saw blood inside.  She
notified the other employees, who threw their food away, and the
biscuit container was sent to the County Health Department for
testing, which confirmed that the red substance was blood of human
origin.  The court's opinion does not indicate that the blood was
tested for HIV, although its source seems to have been traced to a
Hardee's employee who was sent home from work after she told her
supervisor that the bloody container might have been due to her. 
Apparently the Hardee's employee was not tested for HIV, or at
least her HIV-status is not disclosed in the opinion.  

At trial, Davis presented a professor from the University of
Alabama at Birmingham who testified that a person could contract
HIV through oral ingestion of contaminated blood.  Davis has never
tested positive for HIV.  She sued Hardee's under theories of
negligence, wantonness and violation of Alabama's products
liability statute, and won a general jury verdict for $100,000
compensatory damages and $150,000 punitive damages.

Writing for the Alabama Supreme Court, Justice Houston found that
the trial court should have dismissed the wantonness claim on
motion, as the evidence presented did not support the conclusion
that the defendant acted with wanton disregard for the safety of
its customers.  However, the court held that the trial judge had
properly refused to dismiss the negligence and products liability
claims.  Although Alabama does not recognize a separate tort of
negligent infliction of emotional distress, it will award damages
for emotional distress arising from negligence, and in this case
the jury could have concluded that the Hardee's employee was
negligent if she knew she was bleeding and took no steps to ensure
that her blood did not contaminate outgoing food orders.  The court
also held that the trial judge had correctly refused to dismiss the
products liability claim, concluding that food contaminated by
human blood could be considered a "defective" product, and that the
evidence left a question for the jury of whether the package was
contaminated while in Hardee's control.

Since it was likely that a substantial portion of the general
damages (especially the punitive damages) were awarded on the
wantonness claim, the verdict had to be reversed and remanded so
the case can be retried.

In a dissent jointed by two other justices, Justice Cook argued
that sufficient evidence was presented to submit the wantonness
claim to the jury, focusing on the testimony of the Hardee's
employee in question: "If the jury believed, and apparently it did,
that Cohill knew she was bleeding and that her blood may have
gotten into the styrofoam container, yet continued to work and
package biscuits and gravy for customers, then the jury could have
found that Cohill's conduct occurred with a reckless or conscious
disregard for Hardee's customers, including Davis."  A.S.L.

HIV+ Employee Denied Insurance Coverage May Not Sue Employer's
Insurance Provider Under ADA; ERISA Suit Proceeds

A plaintiff who sued his employer and insurance company for failure
to pay medical expenses after he was diagnosed HIV+ survived a
motion to dismiss his claim under the Employee Retirement Income
Security Act (ERISA), but failed under the Americans with
Disabilities Act (ADA).  __Allen v. Cub Foods Corporation and Rush
Prudential Insurance__, 1997 WL 566365 (N.D.Ill., Sept. 5).

After Allen, an employee of Cub Foods, tested HIV+, he contacted
Cub's health insurance provider, Rush Prudential.  Rush Prudential
allegedly confirmed that it would pay for any covered services for
Allen.  Plaintiff alleges that since diagnosis he has incurred
$20,000 in medical and hospital expenses which Rush has refused to
pay.  Allen further alleges that Cub demanded that he agree to
change the terms of his insurance policy due to his HIV status. 
Allen filed an EEOC complaint naming Cub only.  After the EEOC
issued Allen a "right to sue" letter, plaintiff filed an amended
complaint, alleging that Rush violated ERISA, that both Rush and
Cub Foods discriminated against plaintiff due to his HIV status in
violation of the ADA.  Rush moved to dismiss, alleging:  (1)
plaintiff's state law estoppel claim is pre-empted by ERISA; (2)
plaintiff failed to exhaust his administrative remedies under
ERISA; (3) plaintiff failed to name Rush in the EEOC charge; and
(4) Rush is not an "employer" within the meaning of the ADA.

District Judge Anderse denied Rush's motion to dismiss under ERISA
for two reasons.  The court ruled that the complaint did not, as
Rush claimed, allege a state law estoppel claim.  While a state law
estoppel claim is pre-empted by ERISA, Allen's claim was a standard
claim for denial of covered plan benefits under ERISA.  Further, as
the plan in question was not under review, Rush had not shown that
Allen had exhausted his administrative remedies under ERISA.  As
the motion must view the facts in the light most favorable to the 
non-moving party, Allen, the court was left to assume that Allen's
demands of Rush had exhausted his administrative remedies and
therefore this complaint was properly filed against Rush and should
go forward.

Rush prevailed against Allen in the ADA claim, as a party not named
in an EEOC charge cannot be sued under the ADA's employment title. 
The court stated that Allen had alleged no facts which provide an
exception to that rule.  It went on to state that even if Allen had
alleged appropriate facts to bring Rush in, the motion to dismiss
must still be granted because Rush is not an "employer" within the
meaning of the ADA.  Individuals who did not meet the statutory
definition of "employer" cannot be sued under the employment title
of the ADA.  It has been stipulated that in this case, Cub Foods is
the employer, not Rush Prudential.  The court noted that the
Seventh Circuit had not adopted a sweeping definition of "employer"
which would include health  insurance providers.  Thus Allen's
claim against Rush went forward under the ERISA claim alone. P.T.

Uncooked Condom Cooks West Virginia Torts Suit

Plaintiff Shirley Rader's negligence case was cooked when a condom
found swimming in dinner leftovers was found by the Food and Drug
Administration to have been uncooked.  __Rader v. The Kroger Co.__,
1997 WL 557321 (U.S.Dist.Ct., S.D.W.Va., Sept. 3).

Rader prepared a spaghetti dinner for her family on Sept. 8, 1994,
using a house brand jar of spaghetti sauce purchased at a Kroger's
supermarket.  The delicious meal was a great success.  After
dinner, the Rader family members dutifully placed their dishes,
without rinsing them, in the sink or on the kitchen counter.  "That
evening or the next morning," wrote District Judge Haden, "Mrs.
Rader scraped the leftovers from the dishes into the sink.  After
emptying the last bowl, and before turning on the garbage disposal,
she saw what she thought was an onion peel amongst the leftovers in
the sink.  She reached to discard it and, when it felt `funny,' she
`pulled it apart a little bit to see what it was.' When she saw it
was a condom, she became `very, very upset' at the thought the
condom had been in their food while they ate it and immediately
began to pour bleach over her hands and arms.  When her husband and
brother returned home, she showed them the condom, which her
brother stored in the freezer in a sandwich bag."  Mrs. Rader
believed that the condom had come from the spaghetti sauce jar. 
Mrs. Rader and her brother, who was living with the Raders,
required treatment from a psychologist as a result of this
incident.  They have frequently tested HIV-negative ever since the
incident.  The Food & Drug Administration lab determined that "the
condom had been used, but not cooked."

Judge Haden ruled that defendant Kroger should be granted summary
judgment because "Plaintiffs have not raised a triable issue as to
whether the condom was in the jar when it left Defendant's
possession and control, a necessary element of each claim asserted
by Plaintiffs."  Haden observed that there was no direct
testimonial evidence about the condom being present during the
preparation or consumption of the meal, or that it was observed in
the jar or as part of the sauce poured out of the jar.  "No one
noticed anything unusual during dinner."  The dishes stood in the
sink and on the counter for some time before Rader went to scrape
them off.  "Given these undisputed facts, and the permissible,
reasonable inferences accompanying them, Plaintiffs have not raised
a genuine issue that the condom was contained in the Kroger-brand
jar of spaghetti sauce when it left Defendant's possession and
control."  Accordingly, the suit against Kroger was dismissed.

The editor would like to know what was going on in Mrs. Rader's
kitchen between the time the dishes were stacked and she went to
scrape them.  And who's going to bed without dinner tonight? A.S.L.

3rd Circuit Holds Estoppel Theory Inapplicable to ADA Retaliation
Claims

In __Krouse v. American Sterilizer Co.__, 1997 WL 592543 (Sept.
26), the U.S. Court of Appeals for the 3rd Circuit held that an
individual who has filed a claim for disability benefits is not
estopped from bringing a retaliation claim under the Americans With
Disabilities Act.  The court, in an opinion by Circuit Judge
Mansmann, disagreed with the U.S. District Court, W.D. Penn., which
had applied the circuit's __McNemar__ rule to find that the
plaintiff was not entitled to assert any claim under the ADA.

In __McNemar v. Disney Store__, 91 F.3d 610 (3rd Cir. 1996), cert.
denied, 117 S.Ct. 958 (1997), the court held that a person with HIV
who had filed a disability benefits claim, in which he stated under
oath that he or she was permanently disabled from working, was
estopped from bringing a disability discrimination claim under the
ADA, which requires that the plaintiff be a "qualified individual
with a disability" -- that is, an individual capable, with
reasonable accommodation, of performing the job in question. 
However, the Judge Mansmann pointed out that the retaliation
provision of the ADA authorizes "any person" to bring a retaliation
claim, and that the requirements for a prima facie case under this
theory do not include an assertion that the plaintiff is an
"qualified person with a disability."  Thus, Krouse was not
disqualified from filing his retaliation claim solely because he
had previously filed a disability benefits claim.

The opinion for the court suggests that there is some disquiet
within the 3rd Circuit about its __McNemar__ ruling.  Noting that
"__McNemar__ has been the object of considerable criticism" and
that "Some of this criticism might be well-founded," Judge Mansmann
also observed that "it is not the role of a panel to revisit a
previous panel's decision," asserting that reconsideration of the
issue must be left to an en banc court.  But Mansmann did write a
lengthy footnote citing and quoting the critics of __McNemar__,
characterizing as "a thoughtful opinion" the ruling earlier this
year by the D.C. Circuit Court of Appeals in __Swanks v. Washington
Metro. Area Transit Auth.__, 116 F.3d 582, which rejected
__McNemar__.  Mansmann also noted criticisms by the EEOC and the
Social Security Administration, and a harshly critical law review
article.

However, in this case the court found that the plaintiff, an
individual suffering from back problems, had failed to meet other
elements of the prima facie case, and thus affirmed the district
court's dismissal of the retaliation claim.  A.S.L.

Illinois Disability Law Avoids ADA Definitional Problem

The recent decision of the 4th Circuit Court of Appeals in
__Runnebaum v. Nationsbank of Maryland__, 1997 WL 465301, showed
how the generic definitions of the Americans With Disabilities Act
may fail to provide protection to asymptomatic HIV+ individuals, at
least in the hands of unsympathetic judges.  The decision of the
Appellate Court of Illinois in __Lake Point Tower, Ltd. v. Illinois
Human Rights Commissions__, 1997 WL 530281 (Aug. 28), shows how a
differently-worded statute avoids this problem.

The charging party in __Lake Point__, Dorothy Johnson, claimed that
she was terminated from employment because she had cancer.  Johnson
suffered from non-Hodgkins lymphoma, and had an operation to remove
affected lymph nodes.  At the time concerned in this case, Johnson
was "relatively asymptomatic," according to her doctor's
deposition.  When she asked for a reason for her termination
shortly after her surgery, her supervisor would not tell her,
although he did mention that he had told the General Operations
Manager of the company that she had cancer.  Appealing a
determination by the Human Rights Commission in Johnson's favor,
Lake Point argued that she did not have a "handicap" under the law,
and urged the court to follow the kind of interpretation advanced
in the __Runnebaum__ plurality opinion: that an asymptomatic
condition cannot be considered a "physical impairment."

Writing for the court, Presiding Justice Wolfson declined to follow
ADA precedent, noting how the Illinois law's definition of
"handicap" is much broader than the ADA's definition of
"disability."  In Illinois, "Handicap means a determinable physical
or mental characteristic of a person, including, but not limited
to, a determinable physical characteristic which necessitates the
person's use of a guide, hearing or support dog, the history of
such characteristic, or the perception of such characteristic by
the person complained against, which may result from disease,
injury, congenital condition of birth or functional disorder. . ." 
The current wording derives from a 1980 amendment, which removed
from the statute the requirement that the condition cause a
substantial limitation on major life activities, thus reflecting a
judgment by the Illinois legislature that the more stringent
definition (which had been copied from the federal Rehabilitation
Act) deprived too many people from protection.  Under this
definition, it was clear that Johnson had a "handicap" and was
covered by the statute.  A.S.L.

Louisiana Federal Courts Denies Summary Judgement to Insurance
Company in Dispute Over Liability Policy and Discrimination

Pansy Aaron Griffin, who is HIV+, sued under the Americans With
Disabilities Act and Section 504 of the Rehabilitation Act after
being effectively denied admission by Cameron College to study to
be a Medical Assistant by being denied financial aid for which she
was qualified.  She named as co-defendant First Financial Insurance
Co., Cameron's general liability insurer.  FFIC's policy limits
coverage to bodily injury and property damages liability, and
exclude coverage for acts intended or expected to inflict injury. 
FFIC moved to dismiss, asserting that a discrimination claim falls
outside the scope of the policy.  __Griffin v. Cameron College,
Inc.__, 1997 WL 567958 (U.S.Dist.Ct., E.D.La., Sept. 11).

In a decision denying the insurer's motion to dismiss, District
Judge Livaudais found that Louisiana courts have construed
insurance contracts to include coverage for the emotional distress
stemming from unfair discrimination as an aspect of "bodily
injury."  As to the disclaimer regarding intentional injuries, the
court quoted a Louisiana case construing a similar insurance
contract to the following effect: "when minor injury is intended,
and a substantially greater or more severe injury results, whether
by chance, coincidence, accident, or whatever, coverage for the
more severe injury is not barred."  In this case, the court found
that there were factual disputes concerning the coverage question. 
"While officials of Cameron College may have acted intentionally in
effectively denying her admission, and such an act could reasonably
have been `expected' to cause her mental anguish, if biting and
vicious remarks as to her medical condition were made so that she
could overhear them, or would be told of them, then the degree of
plaintiff's mental anguish might reasonably have been intended or
expected to be more severe.  These are questions of fact. . ."  

Griffin alleged in her complaint that she learned that a Financial
Aid Counselor had "castigated" the Admissions Representative for
allowing Griffin to enroll, telling him: "We had one of `them' in
here before.  Who the hell do they think they are, they will be
dead before they pay back their loans."  A.S.L.

AIDS Law & Society Notes

During September, federal health officials announced that for the
first time reports of new AIDS cases were down.  (A decline in
AIDS-related deaths had previously been reported.)  There was
speculation that new medications have created a statistically
significant reduction in the number of HIV-infected individuals who
have progressed to full-blown AIDS.  However, there is no solid
data on the rate of new HIV-infections, since this is not a
reportable event in many states, including California and New York. 
Alarmingly, the Associated Press reported Sept. 26 that there seems
to be a statistically significant increase in gonorrhea diagnoses
among gay men seeking testing and treatment at public health
clinics around the country, which may indicate a decline in the
observation of safer-sex precautions among gay men.  And the __New
York Times__ reported Sept. 30 that although the new medications
(the so-called cocktail combining anti-retrovirals with protease
inhibitors) appear to suppress the virus to an undetectable level
in many patients, it appears that over time the virus is staging a
comeback in about half of those in whom it had been rendered
undetectable.  However, curiously, many of those whose viral loads
have increased above the detectability threshold appear to remain
reasonably healthy.  (Could it be that strains of the virus that
stage a comeback from the effects of the cocktail are less damaging
to their human hosts, thus presaging a long-term manageable
infection?)  

United Press International reported Sept. 25 that William Calvert,
a former Florida public health worker, has been sentenced to one
year of probation on his no-contest plea for breaching the
confidentiality of AIDS patients by taking the list home on a
computer, where his former partner obtained access to the list,
printed it out, and used it in unauthorized ways.  Calvert's former
partner, Gregory Wentz, had previously been convicted of a second-
degree misdemeanor and sentenced to 60 days in jail for his part in
the affair; that sentence is under appeal.  

The __Kansas City Star__ reported on Sept. 10 that Sean Sykes, who
had unprotected sex with several women over a period of years after
learning he was HIV+ in 1991, has been sentenced to ten years in
prison on two counts of risking infection of another with HIV by
Jackson County Circuit Court Judge Lee E. Wells.  City Health
workers had testified that they repeatedly warned Sykes to use
protection after he tested positive, but he was treated for
venereal diseases six times between 1992 and 1996.  One of his sex
partners tested positive in 1993.  The charges against Sykes were
brought under an HIV-specific criminal statute enacted by the
Missouri legislature in 1988.  This is only the second case brought
under that statute.  Sykes claimed he didn't intend to harm
anybody, and blamed his lapses on alcoholism.  

Rhode Island is one of the few northeastern states that still has
a law banning consensual sodomy, but the Attorney General's Office
has announced that "It is not our policy to charge consenting
adults under this statute."  The announcement was made in
connection with a decision by state prosecutors to drop sodomy
charges against two Massachusetts men who were charged with
engaging in consensual homosexual conduct at a roadside stop on a
highway.  However, other charges against the men will be
prosecuted, including trespassing and loitering for indecent
purposes.  __Worcester Telegram & Gazette__, Sept. 9. 

A federal district court jury in St. Louis acquitted several prison
officials of violating the civil rights of a former prisoner who
apparently contracted HIV in prison.  The Aug. 29 verdict in the
lawsuit by Michael E. Blucker is not the final word in the case,
since the jury failed to reach a decision with respect to two of
the co-defendants, and a new trial will be set for them.  Blucker
tested HIV-negative when first incarcerated in Menard Correctional
Center after conviction of car theft and burglary.  He claims that
he was made a sex-slave by fellow prisoners and repeatedly raped. 
He first tested HIV+ a year after his admission.  After testing
positive, he was transferred to another prison, where he had
surgery on his rectum for what he claimed were injuries due to
rape.  In order to win damages in his $1.5 million federal torts
suit, Blucker had to persuade the jury that prison officials showed
deliberate indifference to his well-being.  Prison witnesses
testified that Blucker never complained about being sexually abused
while at Menard, and that he had actually declined an offer of
protective custody.  __St. Louis Post-Dispatch__, Aug. 30.

__American Medical News__ reported Sept. 15 that the Delaware
Supreme Court has ruled that a dentist was not liable for battery,
even though he failed to disclose his HIV+ status before treating
patients.  A study by the state's health department failed to
uncover any of the dentist's patients who have tested HIV+.

Federal courts continue to be divided over whether the
determination that somebody is an "individual with a disability"
under the ADA should be made without regard to the mitigating
effects of medical treatment.  This is a potentially crucial issue
for people with HIV/AIDS who are healthy enough to work as a result
of medical treatment, and thus might not be considered to have a
substantial physical or mental impairment by courts that reject the
EEOC's position on this issue.  On Sept. 2, a sharply divided panel
of the U.S. Court of Appeals for the 6th Circuit in __Guilday v.
Mecosta County__, 7 A.D. Cases (BNA) 348, rejected the EEOC
position, with Judge Cornelia G. Kennedy writing for herself and
Judge Ralph B. Guy Jr. that the EEOC interpretation should not be
followed.  A.S.L.

European Court of Human Rights Protects Persons with HIV/AIDS

Most HIV-related decisions of the European Court of Human Rights to
date have concerned compensation for haemophiliacs with HIV.  But
two 1997 judgments are of more general application.  (Both
judgments can be found at http://www.dhcour.coe.fr.)

On Feb. 25, the Court held in __Z. v. Finland__ that, "[i]n view of
the highly intimate and sensitive nature of information concerning
a person's HIV status, any State measures compelling communication
or disclosure of such information without the consent of the
patient call for the most careful scrutiny on the part of the
Court."  Applying this standard, the Court upheld (by 8-1) orders
requiring the doctors and psychiatrist of Z. (an HIV+ woman)  to
give evidence in criminal proceedings against her husband (accused
of knowingly transmitting HIV), and the seizure of Z.'s medical
records.  But the Court also found (by 9-0) two violations of Z.'s
right to respect for her private life under Article 8 of the
European Convention on Human Rights, in that the confidentiality
order in the criminal proceedings had a limit of only 10 years, and
Z.'s name and HIV status had been mentioned by a Finnish appellate
court in a judgment that had been made available to the press.

On 2 May, in __D. v. United Kingdom__, the Court held (by 9-0)
that, if a man who was approaching death from AIDS-related
complications were deported to the Caribbean island of St. Kitts,
it would amount to "inhuman treatment" and violate Article 3 of the
Convention.  The man (D.) had attempted to enter the U.K. as a
visitor, but had been caught with a large quantity of cocaine.  He
was prosecuted and imprisoned and developed AIDS while in prison
(he had apparently been exposed to HIV before his arrival in the
U.K).  After his release from prison, immigration officials sought
to deport him to St. Kitts.  Although "aliens who have served their
prison sentences and are subject to expulsion cannot in principle
claim any entitlement to remain ... in order to continue to benefit
from medical, social or other forms of assistance," the Court
stressed the "very exceptional circumstances" and "the compelling
humanitarian considerations."  D. was "in the advanced stages of a
terminal and incurable illness," and there was "a serious danger
that the conditions ... in St. Kitts [inadequate medical treatment
and no family support] [would] further reduce his already limited
life expectancy and subject him to acute mental and physical
suffering."  The Court also noted that the U.K. had "assumed
responsibility for treating [D.'s] condition," and that D. had
"become reliant on the medical and palliative care which he [was]
receiving. . .  The abrupt withdrawal of these facilities [would]
entail the most dramatic consequences for him."  R.W.

PUBLICATIONS NOTED 

LESBIAN & GAY & RELATED LEGAL ISSUES: 

Amar, Akhil Reed, __Justice Kennedy and the Ideal of Equality__, 28
Pacific L. J. 515 (1997) (essay).

Ball, Carlos A., __Moral Foundations for a Discourse on Same-Sex
Marriage: Looking Beyond Political Liberalism__, 85 Georgetown L.J.
1872 (June 1997).

Cox, Barbara J., __The Lesbian Wife: Same-Sex Marriage As an
Expression of Radical and Plural Democracy__, 33 Cal. West. L. Rev.
155 (Spring 1997).

Earle, Beverly, and Anita Cava, __The Collision of Rights and a
Search for Limits: Free Speech in the Academy and Freedom From
Sexual Harassment on Campus__, 18 Berkeley J. Emp. & Lab. L. 282
(1997).

Freshman, Clark, __Re-visioning the Dependency Crisis and the
Negotiator's Dilemma: Reflections on the Sexual Family and the
Mother-Child Dyad__, 22 L. & Soc. Inq. 97 (Winter 1997).

Hearst, Alice, __Constructing the Family in Law and Policy__, 22 L.
& Soc. Inq. 131 (Winter 1997).

Hibbs, Mary, __Assisted Reproduction Technology and the Law__, 2
Contemp. Issues in L. 1 (1997).

Hughes, Todd M., __Making__ Romer__ Work__, 33 Cal. West. L. Rev.
169 (Spring 1997).

Kuykendall, Mae, __Essay: On Defined Terms and Cultural
Consensus__, 13 J. L. & Politics 199 (Winter 1997) (on DOMA).

Morris, Robert, __"What Though Our Rights Have Been Assailed?"
Mormons, Politics, Same-Sex Marriage, and Cultural Abuse in the
Sandwich Islands (Hawai`i)__, 18 Women's Rts. L. Rep. 129 (Winter
1997).

Nayo, Lydia A., __In Nobody's Best Interests: A Consideration of
Absolute Bans on Sexual Minority Adoption from the Perspective of
the Unadopted Child__, 35 U. Louisville J. Fam. L. 25 (1996-97).

Post, Dianne, __Why Marriage Should Be Abolished__, 18 Women's Rts.
L. Rep. 283 (Spring 1997).

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

Taylor, Martin Morgan, __Scientific Advance, Static Legal Stance:
The Anomalous Position of Transsexuals Within the Domestic Rape
Law__, 2 Contemp. Issues in L. 49 (1997).

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

Wolhuter, Lorraine, __Equality and the Concept of Difference: Same-
Sex Marriages in the Light of the Final Constitution__, 114 South
African L.J. 389 (1997).

__Student Notes & Comments:__ 

Becker, James A., __Healthcare Surrogacy Laws: Implications for Gay
and Lesbian Families__, 35 U. Louisville J. Fam. L. 97 (1996-97).

Case Note, __Troubling Genders: A Comment on__ P v S and Cornwall
County Council, 2 Int'l J. Discrim. & L. 217 (1997).

Comment, __Throwing Stones: Rational Basis Review Triumphs Over
Homophobia__, 27 Seton Hall L. Rev. 1064 (1997).

Hacking, James O., III, __Won't You Be My Neighbor?: Do Community
Notification Statutes Violate Sexual Offenders' Rights Under the
Constitution's Ban on Ex Post Facto Laws?__, 41 St. Louis U. L. J.
761 (Spring 1997).

Plank, Tonya, __Expanding the Feminine Sexual "Imaginary:" A
Response to Drucilla Cornell's Theory of Zoning Pornography__, 18
Women's Rts. L. Rep. 215 (Winter 1997).

Simone, Catharine J., __"Kill(er) man was a Battered Wife" -- the
Application of Battered Woman Syndrome to Homosexual Defendants:__
The Queen v. McEwen, 19 Sydney L. Rev. 230 (June 1997).

Tucker, Dana M., __Preventing the Secondary Effects of Adult
Entertainment Establishments: Is Zoning the Solution?__, 12 J. Land
Use & Envir. L. 383 (Spring 1997).

Weiss, Debra L., __The Sex Offender Registration and Community
Notification Acts: Does Disclosure Violate an Offender's Right to
Privacy?__, 20 Hamline L. Rev. 557 (Winter 1996).

__Book Review:__

 Review of __Law's Desire: Sexuality and the Limits of Justice__,
by Carl Stychin, 2 Int'l J. Discrim. & L. 235 (1997). 

__Specially Noted:__

The Tulane Journal of Law & Sexuality is seeking articles for
publication in its 8th volume.  This is the only student-edited
journal solely devoted to creating a forum for legal academic
writing on issues that affect gay and lesbian people.  Article
proposals can be sent via e-mail to the articles editor at
<Ahames@fire.tulane.edu>.  Submissions should be sent to: Journal
of Law & Sexuality, Tulane Law School, 6329 Freret St., New Orleans
LA 70118-5670.

AIDS & RELATED LEGAL ISSUES: 

Craven, B.M., G.T. Stewart & M. Khan, __AIDS: Safety, Regulation
and the Law in Procedures Using Blood and Blood Products__, 37
Medicine, Science & L. 215 (British Academy of Forensic Sciences)
(July 1997).

Drass, Kriss A., Peter R. Gregware & Michael Musheno, __Social,
Cultural, and Temporal Dynamics of the AIDS Case Congregation:
Early Years of the Epidemic__, 31 L. & Society 267 (1997).

Gostin, Lawrence O., & Zita Lazzarini, __Prevention of HIV/AIDS
Among Injection Drug Users: The Theory and Science of Public Health
and Criminal Justice Approaches to Disease Prevention__, 46 Emory
L.J. 587 (Spring 1997).

Koehler, Cynthia R., __Incontestability Laws Abet Fraud by
Applicants. . . Courts' Refusal to Infer a Fraud Exception Exposes
Carriers that Waive Medical Exams to Liability," 20 Nat. L. J. No.
2 (Sept. 8, 1997).

McGovern, Theresa M., __Mandatory HIV Testing and Treating of
Child-Bearing Women: An Unnatural, Illegal, and Unsound Approach__,
28 Col. Hum. Rts. L. Rev. 469 (Spring 1997).

__Student Notes & Comments:__

Fallek, Sahri B., __Health Care for Illegal Aliens: Why it is a
Necessity__, 19 Houston J. Int'l L. 951 (Spring 1997).

Stevens, Andrea K.R., __The Hysteria Continues: When a Non-Parent's
HIV Infection Threatens Parental Rights__, 35 U. Louisville J. Fam.
L. 161 (1996-97).

__Specially Noted:__

Wiley Law Publications has issued a third edition of its treatise,
__AIDS and the Law__ (ISBN 0-471-13542-9), edited by David W.
Webber.  The treatise provides a concise summary of U.S. AIDS law,
current as of early 1997, in the areas of public health law,
workplace law, public services and accommodations, schools and
educational programs, housing, criminal law, tort law, public
benefits law, international law, and immigration law.  Many of the
contributors have published widely in this area.  Annual looseleaf
supplementation will be available for purchasers of the volume who
enter into a subscription agreement with Wiley.

__Specially Noted:__

 File this one under "tales of the bizarre": In the September 29,
1997, issue of __National Review__, Chandler Burr points to Cuba's
approach to AIDS (forced testing of the entire population and
detention in sanatoria of all testing positive) in arguing in
support of the Coburn Bill, H.R. 1062, a measure that would require
mandatory HIV-reporting and other coercive measures ostensibly to
combat the spread of HIV.  Burr points to the low prevalence of HIV
in Cuba as evidence that this authoritarian approach successfully
prevented a major AIDS epidemic, and points to the much higher
prevalence of HIV in the U.S. to argue that so-called "AIDS
exceptionalism" (i.e., not using the same public health approach
for AIDS as have been used in the past for tuberculosis and
venereal diseases) does not work.  Rep. Tom Coburn, a very
conservative Republican from Oklahoma, is not suggesting that
Congress appropriate the money necessary to provide treatment for
every American who tests HIV+, needless to say. * * *  The national
media reported in September that the __New England Journal of
Medicine__ had endorsed mandatory name-reporting of those testing
HIV+.  What the national media downplayed or overlooked entirely
was that the __Journal__'s editorial, titled __Battling HIV on Many
Fronts__, 337 N.Eng.U.Med. 779 (Sept. 11, 1997), called for a 4-
prong approach to combatting the epidemic: a national standard for
HIV-reporting (including name reporting to public health
officials); expanded access to effective medications for groups now
deprived of access; improved access to physicians experienced in
treating HIV/AIDS; and improved protection of patients from
violations of privacy and discrimination (emphasizing
discrimination in access to insurance and treatment).  The
editorial, by Dr. Robert Steinbrook, did not specifically advocate
passage of the Coburn Bill in the absence of these other measures,
none of which is addressed by Rep. Coburn.

EDITOR'S NOTE

A new contributing writer, Arthur J. Levy, Esq., was inadvertently
omitted from the contributing writers list in the September Law
Notes.  All articles over the initials A.J.L. are by him. * * *
Elaine Nissen's e-mail address was rendered incorrectly in the
September Law Notes.  It is <ehnissen@aol.com>.  Contact her for
information about the N.J. adoption case in which she represented
a gay male couple. * * *  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.