LESBIAN/GAY LAW NOTES ISSN 8755-9021 April 1998 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: Ian Chesir-Teran, Esq., New York City; Otis R. Damslet, Esq., New York City; Leslie S. Deutsch, Esq., New York City; Todd V. Lamb, Esq., New York City; Mark Major, Esq., Long Island, New York; Seth M. Rosen, NY Law School Student, New York City; K. Jacob Ruppert, Esq., Queens, New York; Daniel R Schaffer, New York City; Paul Twarog, Esq., New York City; Dirk Williams, Esq., Boston, Massachusetts; 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) 1998 by the LeGaL Foundation of the Lesbian & Gay Law Association of Greater New York $45/yr by subscription; Foreign Rate US$60 ALASKA JUDGE DECLARES SAME-SEX MARRIAGE A FUNDAMENTAL RIGHT In a completely unprecedented ruling issued on February 27, Alaska Superior Court Judge Peter A. Michalski declared that the right of an individual to select a marital partner of the same sex is a fundamental right under that state's constitution, which can be abridged by the state only upon a showing that such abridgement is necessary to serve a compelling interest of the state. _Brause v. Bureau of Vital Statistics_, 1998 WL 88743. Michalski granted partial summary judgement to plaintiffs Jay Brause and Gene Dugan, and denied the state's motion for summary judgment. This may be the first time that any judge has ruled that same-sex marriage is a fundamental right. The case stemmed from an application for a marriage license filed by Brause and Dugan with the state's Office of Vital Statistics on Aug. 4, 1994, and denied by that office. The Alaska Marriage Code, A.S. 25.05.011(a) specifically defines marriage as a "civil contract entered into by one man and one woman" and Alaska has reacted to the Hawaii marriage litigation by passing an anti-same- sex marriage law, codified at A.S. 25.05.013, providing that same sex marriages are void in Alaska, regardless where they are contracted. Thus, Brause and Dugan could not argue, as some same- sex marriage litigants plaintiffs have in the past, that the court could order the state to grant them a marriage license through interpretation of the existing statute. Noting the specificity of the marriage law, Michalski commented that the plaintiffs were challenging "the very definition of marriage found in the Code." However, Michalski refused to be limited by any traditional notion of marriage in resolving this dispute. "It is the duty of the court to do more than merely assume that marriage is only, and must only be, what most are familiar with. In some parts of our nation mere acceptance of the familiar would have left segregation in place." After reviewing the role of the state in controlling access to and defining the incidents of marriage, Michalski asserted that it was the task of the court to "test the legal definition of marriage to determine whether the definition itself, a definition that excludes persons of the same sex who want to marry, is constitutional." Here, the express protection of the right of privacy in Article I, sec. 22, of the Alaska Constitution, which has been broadly construed in the past by the Alaska Supreme Court, provided an extraordinary weapon for the plaintiffs in their attack on the statute. The Alaska court has construed this provision in _Breese v. Smith_, 501 P.2d 159 (1972), to invalidate a high school hair length rule on grounds of a fundamental right to control one's personal appearance, and in _Ravin v. State_, 537 P.2d 494 (1974), to protect the private possession of marijuana in the home. Michalski acknowledged that some might see the extension of privacy concepts to something as "public" as the state recognition of a marital relationship as extraordinary. But by reference to such federal privacy decisions as _Griswold v. Connecticut_, 381 U.S. 479 (1965), and _Loving v. Virginia_, 388 U.S. 1 (1967), Michalski showed how the privacy/autonomy concept has been used to protect against "government intrusion into one's intimate affairs." He showed that in the hair length case, for example, the government was concerned with public appearance, but the court dealt with the case as a privacy case. Similarly, the selection of a marital partner is both a private and public act. "Clearly, the right to choose one's life partner is quintessentially the kind of decision which our culture recognizes as personal and important," wrote Michalski. "Though the choice of a partner is not left to the individual in some cultures, in ours it is no one else's to make. Indeed, the marriage license and the marriage ceremony themselves make clear that this must be a choice freely made by the individual." Michalski criticized the Hawaii Supreme Court's failure to recognize this right as fundamental in _Baehr v. Lewin_, 852 P.2d 44 (1993). According to Michalski, the Hawaii court asked the wrong question in exploring the due process application to this issue. Rather than asking whether same-sex marriage is a long established tradition, that court should have asked "whether the freedom to choose one's own life partner is so rooted in our traditions," a question to which the court's answer is affirmative: "Here the court finds that the choice of a life partner is personal, intimate, and subject to the protection of the right to privacy. Failure of the state to provide public recognition of that private choice, whether it is the choice of a life partner of the opposite sex or of the same sex, is analogous to the unwillingness of the school in _Breese_ to allow the presence of a student who made a personal choice to wear long hair." Consequently, governmental intrusion into such a choice is not allowed unless the state can show a compelling interest that makes abridgement of the right necessary. Brause and Dugan had also asserted an equal protection claim. although Michalski found that this issue was moot because of his ruling on the fundamental rights claim. However, hedging his bets against a likely interlocutory review by the Alaska Supreme Court, he also found that "the specific prohibition of same-sex marriage does implicate the Constitution's prohibition of classifications based on sex or gender," although in Alaska such classifications are not subjected to strict scrutiny, merely the intermediate heightened level of scrutiny akin to federal constitutional sex discrimination claims. Michalski found no difficulty in showing how the same-sex marriage ban is sex discrimination: "if twins, one male and one female, both wished to marry a woman and otherwise met all of the Code's requirements, only gender prevents the twin sister from marrying under the present law. Sex-based classification can hardly be more obvious." Michalski directed the parties to "set necessary further hearings to determine whether a compelling state interest can be shown for the ban on same-sex marriage found in the Alaska Marriage Code." However, the state's attorney, John Gaguine, promptly announced that he would file an appeal in the state supreme court, and the state senate promptly passed a resolution calling on the court (which has discretion about whether to take such interlocutory appeals) to take the case and decide it quickly. Suspicious of their notoriously liberal supreme court, the Alaska legislators also set the wheels in motion to place a question on the fall ballot to overrule the court's constitutional determination. An amendment proposed by Senator Loren Leman is brief and to-the-point: "Each marriage contract in this state may be entered into only by one man and one woman." If it is approved by 2/3 vote in each house of the legislature, it would be placed on the November ballot. News of the Alaska decision also appeared to give new impetus to efforts in other states to pass laws against recognition of same-sex marriage (see below). Plaintiffs Brause and Dugan are represented by Robert Wagstaff. A.S.L. LESBIAN/GAY LEGAL NEWS Supreme Court Finds Same-Sex Harassment Actionable under Title VII The U.S. Supreme Court unanimously upheld a plaintiff's right to sue for sexual harassment under Title VII of the Civil Rights Act of 1964, regardless of the harasser's sex or sexual orientation. _Oncale v. Sundowner Offshore Services, Inc._, 118 S.Ct. 998 (March 4). Plaintiff Joseph Oncale suffered a nasty campaign of physical and verbal sexual harassment by co-workers and supervisors on an oil rig. (See _Law Notes_, October 1995, June 1996, and January 1998). The harassment included simulated sexual assaults, even though everyone involved was heterosexual and male. After complaining unsuccessfully to supervisory personnel, Oncale quit, requesting his pink slip reflect that he left due to sexual harassment and verbal abuse." Oncale sued but the U.S. District Court for the Eastern District of Louisiana dismissed, bound by _Garcia v. Elf Atochem North America_, 28 F.3d 446 (5th Cir. 1994) (same-sex harassment not actionable under Title VII). The Fifth Circuit affirmed, following _Garcia_. The Supreme Court reversed. Writing for a unanimous Court, Justice Antonin Scalia looked to the plain language of the statute, which prohibits "discriminat[ion] because of ... sex" in the "terms" or "conditions" of employment. "Our holding [in _Meritor Savings Bank, FSB v. Vinson_, 477 U.S. 57 (1986)] that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements," Scalia wrote. Addressing floodgate arguments, Scalia quoted _Meritor_: "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." However, Scalia noted that the same actions might have different implications in different contexts: "A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field - even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office." Scalia refuted the claim that Title VII was intended solely to prevent one sex from discriminating against the other. "As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." One hopes this reasoning might prevail over "original intent" arguments elsewhere as well, for example enforcing the Equal Protection clause to stop states denying same-sex couples the equal protection of the laws governing marriage. Justice Clarence Thomas joined the unanimous opinion and added a one-sentence concurrence: "I concur because the Court stresses that in every sexual harassment case, the plaintiff must plead and ultimately prove Title VII's statutory requirement that there be discrimination `because of ... sex.'" The Court disposed of two other same-sex harassment cases on March 9. It denied certiorari in _Fredette v. BVP Management Associates_, 112 F.3d 1503 (11th Cir. May 22, 1997) (cert. denied sub nom. _BVP Mgmnt. Assoc. v. Fredette_, 1998 WL 97294), allowing a male employee to sue for harassment by a male supervisor. The Court vacated _Doe v. City of Belleville_, 119 F.3d 563 (7th Cir., July 17, 1997) (see _Law Notes_, September 1997), remanding for reconsideration in light of _Oncale_, in which Scalia characterized Belleville as holding that workplace harassment that is sexual in content is always actionable, regardless of the harasser's ... motivations." (In fact, _Belleville_ found workplace harassment that included an assault on the victim's testicles actionable because the victim necessarily experienced it "as a male.") _Otis R. Damslet_ _Oncale_ and _Fredette_ may now proceed to trial, where the plaintiffs will have to show that they were harassed "because of [their] sex" in order to prevail. The _Belleville_ case returns to the 7th Circuit, where the court will have to decide whether the plaintiff can still maintain a cause of action in light of the somewhat obscure dicta of Scalia's opinion for the Court. _Arthur S. Leonard_ Bicoastal Appellate Split on Boy Scouts: New Jersey and California Courts Differ on Application of Civil Rights Laws in Gay Cases In New Jersey and California, it is unlawful for many organizations that provide goods and services to the public to discriminate on the basis of sexual orientation. In New Jersey, the state's Law Against Discrimination was amended in 1991 explicitly to ban discrimination on the basis of sexual orientation in any "place of public accommodation." In California, the courts have construed the Unruh Civil Rights Act, enacted in 1959 to ban discrimination by "business establishments," to cover sexual orientation discrimination. In recent weeks, appellate courts in both states issued decisions on whether the Boy Scouts of America are amenable to suit under these laws, ruling on discrimination claims by openly gay men who were denied assistant scoutmaster positions. First, the New Jersey Appellate Division ruled in favor of the plaintiff, as described in the following article by _Ian Chesir-Teran_. Then a few weeks later, the California Supreme Court ruled in favor of the Boy Scouts, as described further below by _Arthur S. Leonard_. In both cases, the gay plaintiffs were represented by attorneys employed by Lambda Legal Defense & Education Fund: Evan Wolfson in the New York office and Jon Davidson in the Los Angeles office, together with other cooperating attorneys and a variety of amici. A.S.L. _New Jersey_. In a major gay civil rights victory, a 3-judge panel of the Appellate Division of the New Jersey Superior Court unanimously concluded that the Boy Scouts of America violated the state's anti-discrimination statute when it expelled a member for being gay. _Dale v. Boy Scouts of America_, 1998 WL 84577 (March 2). A majority of the panel also held that New Jersey's Law Against Discrimination (LAD) precluded the Boy Scouts from excluding the plaintiff from serving as a volunteer leader in the organization. James Dale first enrolled in the Boy Scouts of America (BSA) as a Cub Scout at the age of eight. Dale ultimately earned the prestigious rank of Eagle Scout in addition to thirty honor badges and various other awards. He applied and was approved for adult membership in the BSA at age eighteen. Two years later, however, the Monmouth Council -- one of 400 local Boy Scout councils -- expelled him from his position as Assistant Scoutmaster and revoked his BSA membership solely because he is gay. The Council Executive learned of Dale's sexual orientation through a newspaper article in the Newark Star Ledger, in which Dale was identified as the co-president of the Rutgers University Lesbian/Gay Alliance. The Northeast Region Review Committee supported the decision of the Monmouth Council. Dale sued in the Superior Court in Monmouth County, seeking damages and reinstatement. The BSA alleged that its decision to expel Dale was based on a 1978 BSA policy statement which prohibits "anyone who openly declares himself to be a homosexual" from serving as a volunteer leader. (The BSA adopted a more extensive anti-gay policy statement in 1993, prohibiting "avowed homosexuals" from becoming leaders or members.) BSA also claimed that homosexuality conflicted with the Scout Oath, which demands that scouts be "morally straight," and with the Scout law which requires scouts to be "clean." The trial judge granted summary judgment to the defendants, concluding that the BSA was not a "place of public accommodation" subject to New Jersey's anti-discrimination law because it was not confined to a physical space like a restaurant or a hotel. This narrow position had previously been adopted by the U.S. Court of Appeals for the 7th Circuit and the Supreme Court of Kansas in dismissing anti-discrimination suits brought against the BSA by former members who were expelled for being atheists. The trial court also held that the BSA's right to the freedom of expressive association under the First Amendment permitted it to exclude homosexuals from membership and service, even assuming the BSA were covered by New Jersey law. The judge relied on derogatory, homophobic rhetoric to support his position, referring to the plaintiff at one point as an "avowed sodomist," although there was no mention of anything in the trial record to suggest that Dale had ever referred to himself using such language. The Appellate Division rejected the narrow definition of "public accommodation" espoused by the trial court. In an opinion by Judge Havey, the court instead likened the BSA to Little League Baseball, which has been held to constitute a public accommodation in New Jersey even though it too lacks a fixed physical space. The court ruled that the BSA is a public accommodation subject to the LAD because it invites the public at large to join, advertises extensively to encourage new membership, and because it has an extensive and historic association with various public entities including public schools, PTA's, firehouses and local civic groups. A contrary conclusion would thwart the legislative intent and remedial purpose of LAD and other civil rights legislation, the court concluded. The court likewise rejected the trial court's holding that the First Amendment's implied freedom of expressive association allows the BSA to exclude homosexuals from its ranks as members and leaders. The court acknowledged a tension between the compelling state interest in eradicating discrimination and the freedom to associate for the expression of fundamental views. However, notwithstanding the BSA's 1978 policy statement and the Scout Code and Oath, the court concluded that gay members and volunteer leaders would not thwart or otherwise interfere with the BSA's underlying, fundamental purpose or message. Judge Landau penned a separate opinion, concurring in part and dissenting in part. Landau bemoaned that the current state of New Jersey law has indeed "transformed" organizations such as the BSA into places of public accommodation under New Jersey law. Yet he distinguished between the effect this status has on BSA membership and BSA leadership. Landau agreed with the "carefully crafted" majority opinion that BSA membership could not be denied to homosexuals. But he believed that requiring the BSA to allow gay men to act as volunteer leaders would force the BSA to appear to endorse homosexuality, conflicting fundamentally with its longstanding moral beliefs. According to Landau, this would violate BSA's right of expressive association guaranteed by the First Amendment. The New Jersey LAD was amended in 1991 to prohibit discrimination on the basis of sexual orientation in employment, housing, and public accommodations. The inclusion of sexual orientation as a protected class is not a guarantee against discrimination, however, as California's recent Boy Scout ruling makes clear. The Dale decision, which the Boy Scouts will appeal to the state supreme court, is nonetheless a significant win (apparently the first such win at an appellate level), not only because of its immediate result in New Jersey, but also because it fuels the fire for future victories in sister states and municipalities. _Ian Chesir-Teran_ _California_. All seven members of the California Supreme Court agreed that the Boy Scouts of America is not a "business establishment" within the meaning of the Unruh Civil Rights Act, but they were of several minds in arriving at that conclusion in _Curran v. Mount Diablo Council of the Boy Scouts of America_, 1998 WL 125249 (March 23). The longest-serving member of the court, Justice Stanley Mosk, a liberal holdover from the long-gone "Rose Bird Court," sounded almost apologetic in his concurring opinion in reaching this conclusion, commending gay plaintiff Timothy Curran as exactly the sort of person the BSA should place in a leadership position. Even the more conservative Chief Justice Ronald George, writing for a majority of the court's members, insisted that "the resolution of this matter does not turn on our personal views of the wisdom or morality of the actions or policies that are challenged in this case." There were also separate concurring opinions by Justices Joyce Kennard, Kathryn Werdegar, and Janice Roger Brown. (In a companion decision, _Randall v. Orange County Council, Boy Scouts of America_, 1998 WL 125222, the court applied the same holding to discrimination claims brought by twin brothers who were expelled from their Cub Scout troop for being atheists.) Like Jim Dale in New Jersey, Timothy Curran devoted several happy childhood years to scouting, rising in the ranks to Eagle scout before aging out of the program. Simultaneously, he was discovering his gay sexuality and became an openly gay civil rights advocate at his high school, coming to the attention of the _Oakland Tribune_, which featured an interview with Curran in a three-part article on gay teenagers in the San Francisco Bay Area that was published June 29-July 1, 1980. By that time, Curran was no longer an active scout, but shortly thereafter, he applied to become an assistant scoutmaster so that he would be qualified to attend the 1981 Boy Scouts National Jamboree. His application was rejected that fall, explicitly because he was now openly gay, and Curran filed suit under the Unruh Act. His lawsuit seemed to take forever to get to a final decision. One lengthy delay occurred when the trial court put the matter on hold pending the U.S. Supreme Court's consideration of a public accommodations case involving Rotary, International. There were also interlocutory appeals that delayed things, and then the final appeal was delayed while the later-filed _Randall_ case was working its way through the system. Penultimately, the Court of Appeal upheld a ruling by the trial court in favor of the Boy Scouts on the ground that applying the Unruh Act to Curran's claim would violate the Scouts' expressive association rights under the First Amendment. Unlike the trial court, the Court of Appeal also ruled that the Unruh Act did not apply to the Scouts, thus rendering the constitutional ruling dictum in the case. The Supreme Court affirmed the latter ruling, and stated that because the Unruh Act did not apply, the court would not rule on the expressive association claim, which was mooted. However, in her concurring opinion, Justice Kennard stressed the serious constitutional association issue as an independent reason for adopting a narrow construction of the Unruh Act to avoid applying it to the Boy Scouts. In his opinion for the court, Chief Justice George traced the long history of "public accommodations" and "business establishment" law in California. Prior to the 1959 Unruh Act, California had a series of statutes forbidding discrimination in places of public accommodation. The change in nomenclature in 1959, substituting the phrase "all business establishments of every kind whatsoever," was held by the court to have been a change with substantive import. Analyzing the application of the 1959 wording to this case, George emphasized the non-business aspects of the Boy Scouts. He noted that the courts had given this phrase an expansive application in the past. "Nonetheless," he wrote, "although past California decisions demonstrate that the Act clearly applies to any type of for-profit commercial enterprise, and to nonprofit entities. . . whose purpose is to serve the business or economic interests of its owners or members, no prior decision has interpreted the "business establishments" language of the Act so expansively as to include the membership decisions of a charitable, expressive, and social organization, like the Boy Scouts, whose formation and activities are unrelated to the promotion or advancement of the economic or business interests of its members. . . In our view, given the organization's overall purpose and function, the Boy Scouts cannot reasonably be found to constitute a business establishment whose membership decisions are subject to the Act." In contrast to the N.J. Appellate Division, which stressed the size of the national organization, the numerosity of its members, and the nonselectivity of the membership, Justice George focused on the small units, the den or the troop, meeting in members' homes, and described the organization's focus as involving the youthful members in "a variety of activities, ceremonies, and rituals that are designed to teach the moral principles to which the organization subscribes." George acknowledged that the BSA also engages in commercial activities, selling various products and charging for participation in its programs, but drew a distinction between such activities and the organization's decision about admitting people to membership or voluntary leadership positions. Justice Mosk's concurrence found the court's explanation of its decision unsatisfactory, and articulated a different theory of the case. For Mosk, the essence of a business establishment is the nature of its relationship with its customers, which he characterized as a relationship of proprietor and patron, a relationship which he concluded did not pertain between the Boy Scouts and its members (although it does pertain, clearly, between the Boy Scouts and those non-scout members who purchase goods or services from the organization). In a wide-ranging discussion, Mosk reviewed key holdings going back several decades, characterizing some as wrongly decided in light of this theoretical view, and calling for overruling certain of them with which Chief Justice George struggled in attempting to distinguish past precedents to reach his conclusion in this case. In her brief concurrence, Justice Brown endorsed Mosk's analysis, characterizing the court's past jurisprudence on this issue as "a mess" and asserting that Mosk had successfully cleaned up the mess by articulating a coherent theory for construing the term "business establishment." In her separate concurrence, Justice Werdegar is even more critical than Justices Mosk and Brown of the court's jurisprudential record on this issue, pointing out significant problems with the majority's reasoning in this case. _After three decades of decisions, including today's, addressing the question whether particular entities are `business establishments' subject to the act, a competent attorney in many foreseeable cases still would not be able to advise a client with a reasonable degree of certainty whether the act applies." The problem, insisted Werdegar, is that the legislature had evaded the crucial task of defining its terms. She bemoaned the need for judges to try to define crucial undefined statutory terms, warning that it would lead to more confusing decisions and unnecessary litigation. Nonetheless, she agreed with the court's ultimate conclusion in this case. Because this decision turns solely on an interpretation of state law, there is no further possibility of appeal beyond a petition for rehearing or reconsideration, which, in view of the unanimity of result, would seem unlikely to be granted. In predicting the effect of this ruling on challenges to the Boy Scouts' policies in other jurisdictions, it is important to note the peculiar wording, legislative history and history of application of the Unruh Act, which can provide a basis for distinguishing this case from proceedings in other states. On the other hand, the California court's characterization of the Boy Scouts as a matter of factual findings may prove influential, differing as it does from the factual findings of the New Jersey Appellate Division regarding the nature and purpose of the organization. The California court accepted the Boy Scouts' assertion of the centrality of a particular moral vision to its mission, including within that vision a firm rejection of the normality and healthiness of a self-accepting gay identity and acceptance of traditional Judaeo-Christian God-centered theology. The New Jersey court, by contrast, pictured the Scouts as a secular, relatively non-ideological organization whose espousal of anti-gay dogma appeared to have been recently adopted, perhaps partly to avoid controversy with "family"-oriented traditionalists. Clearly, the way a court characterizes the organization will have much to do both with its resolution of the statutory question and, if need be, the constitutional question raised by applying a non- discrimination law to the organization's membership decisions. A.S.L. Alabama Supreme Court Upholds Restrictions on Lesbian Mother's Visitation Rights, Imputing Criminality Based on Sodomy Law A divided Supreme Court of Alabama reversed an appellate decision which would have removed restrictions on visitation rights for R.W., a non-custodial mother engaged in a four-year lesbian relationship. _Ex parte D.W.W. (In re: R.W. v. D.W.W.)_, 1998 WL 81615 (Feb. 27). On their divorce in 1996, D.W.W., the father, was awarded custody of the two minor children and R.W. was granted limited periods of visitation "only at the maternal grandparents' home under their supervision and control and in no event shall the children be around N.L., the mother's sexual partner, during any visitation period." The trial judge also ordered that "Neither party shall have overnight adult guests (family excluded) while [the] children are in their home and under their custody unless they are married thereto." The opinion does not discuss the legality of lesbian marriage in Alabama. Chief Justice Hooper's opinion (with which another Justice concurred, two others concurring in the result, and two dissenting) shows great deference to "the duty of an appellate court. . . to affirm the trial court's judgment if it is supported by any credible evidence" in concluding that the visitation restrictions were reasonably drawn to protect the interests of the children. Hooper states "that R.W. at times displayed poor parenting skills . . . the judge could have found that R.W. had hit her daughter with the buckle of a belt, leaving marks on the child . . . the judge heard testimony indicating that R.W. has been an impatient parent, at times even shaking her son when his medication to control his hyperactivity was wearing off." Justice Kennedy dissented "[b]ecause the main opinion seems to be more interested in providing social commentary than in protecting the best interests of th[e] children. . . In an apparent attempt to play to public opinion, the main opinion has ignored the sound reasoning of the Court of Civil Appeals and has mischaracterized much of the evidence presented in this case. . . While I am not attempting to condone R.W.'s lifestyle, I cannot ignore the fact that the trial court's decision appears to be founded primarily on prejudice." Kennedy enumerates eleven items of evidence, relevant to the interests of the children, which the trial court and the main opinion neglect to address, including: D.W.W.'s history of alcohol abuse, violence, and numerous D.U.I. citations including one while R.W. was pregnant, and one during the pendency of this action; D.W.W. ran into a tree stump, totaling his car, while driving intoxicated with his 23-month old daughter who was not secured in a child safety seat; D.W.W. has been charged with domestic abuse on three occasions, and R.W. testified that there were many unreported incidents of abuse during their 10-year marriage; D.W.W.'s two arrests for third-degree assault. Police described him as "highly intoxicated and using abusive language." On D.W.W.'s second arrest, the police noted a bruise on R.W.'s left eye and were forced to apprehend D.W.W. after he fled on foot. Despite a guilty plea on one assault charge, D.W.W. testified that he never hit his wife; D.W.W. closed his infant son in a clothes dryer; D.W.W. has consistently demonstrated his willingness to disparage R.W. in front of the children and to use them as pawns in this dispute; D.W.W. has threatened to kill R.W., the children, and others; on several occasions, the daughter's school complained about her personal hygiene and manners following her weekend visits with D.W.W.; D.W.W. allegedly increased his son's Ritalin dosage without consulting the child's physician; the children often returned from D.W.W.'s house with flea bites, and both contracted scabies after visiting him; and although D.W.W. had been ordered to pay child support, the mortgage on the marital home, and half of the children's daycare bill, the home mortgage remained in default throughout this proceeding and the children's daycare facility had to sue to collect the unpaid balance. In upholding the trial court's requirement that R.W.'s "sexual partner" N.L., with whom she and the children lived since 1994, absent herself during the visits, the main opinion vaguely refers to evidence that N.L. sometimes used disciplinary methods on the children that "the mother even admitted . . . she personally would not choose ... yet she continued to allow her sexual partner to punish the children harshly." The court grudgingly admits that R.W. and N.L. do not engage in sexual contact in front of the children but "they openly display affection in the children's presence" and "[b]oth women are active in the homosexual community . . . they frequent gay bars and have discussed taking the children to a homosexual church." In a footnote to Justice Kennedy's dissent, by contrast, we learn that R.W. has decided to take the children to her parents' church and that R.W. and N.L. socialize "almost exclusively" with coworkers and family. The main opinion takes as "evidence that the children have been adversely affected by their mother's [lesbian] relationship" the facts that "[a]fter moving in with R.W. and N.L., the children began using vulgar language and required psychiatric counseling. The mother herself admits that her daughter began having problems with manipulation and lying. The evidence showed that this child also experiences problems dealing with anger and that she sometimes acts violently." In dissent, Justice Kennedy reasons that "many of the children's learning and behavioral difficulties began before R.W. separated from D.W.W. and therefore could not be attributed to R.W.'s relationship with N.L., as the main opinion implies. The evidence showed that the children had excelled in school over the year and a half they were in their mother's custody, and that N.L., who is a child guidance counselor, had spent many hours working with the parties' daughter to improve her spelling and her motor skills." Kennedy also points out that "the record indicates that R.W. spanks the children less often than D.W.W. does, and that the marks on the daughter, addressed in the main opinion, actually occurred when R.W. grabbed the daughter's arm to rescue her from drowning in the deep end of a pool." In a footnote, Kennedy notes that the only possible evidence for the court's assertion that the children "required psychiatric counseling" was testimony that D.W.W. had begun taking them to his sessions with his alcoholism therapist. The trial court found R.W.'s conduct to violate the laws of nature. Absent any evidence as to the specifics of R.W.'s sex life, the main opinion questions R.W.'s parental fitness based on the presumed criminal nature of her relationship with N.L., and suggests that lesbianism in general is illegal under the Alabama Code. Justice Kennedy quotes the code, which bars oral sex between the unwed regardless of gender. The main opinion implies that violation of this statute is tantamount to parental unfitness. Kennedy concludes that prejudice, rather than the best interests of the children, determined this result. _Mark Major_ South Dakota Supreme Court Orders Reinstatement of Teacher Who Spoke to Students About Gay Sex On February 25, 1998, the Supreme Court of South Dakota reversed a lower court and ordered reinstatement of an elementary school teacher who had been terminated after describing homosexual sexual activities to his students. _Collins v. Faith School District_, 1998 WL 89636. Richard Collins was an elementary school teacher with the Faith School District. His employment was terminated based upon "incompetency" for his conduct after a sex education video was shown to the students. A community health nurse showed the sex education video to the 4th, 5th and 6th grade students. Afterwards, the male students went with Collins for a question and answer session concerning the video. Although the school system does not have a specific sex education curriculum, Collins had done the program with the same nurse for over fifteen years with the same routine of taking the male students for a question and answer session afterwards. This year, during the question and answer session, one student asked how two men could have sex. In response, Collins first cautioned the students that this type of behavior was frowned upon, most people did not believe in it, and the boys would find it gross. Collins then described oral and anal sexual intercourse in explicit detail to the students. After several complaints from parents, a hearing was scheduled before the school board to consider Collins' dismissal. Although Collins had an exemplary record with the school system and this was the first and only complaint brought against him, the school board found him incompetent and recommended his dismissal. The school board's decision was affirmed by the District Court. The Supreme Court of South Dakota reversed in a decision by Justice Amundson, finding that incompetence must arise from a course of conduct or a series of incidents, and a single incident is insufficient to support a finding of incompetence. The court found that a single incident could give rise to a finding of incompetence only if it is of "such magnitude or of such far reaching consequences that a teacher's ability to perform his or her duties will be permanently impaired." Here, there was no finding by the lower court that the incident had any effect whatsoever on Collins' teaching ability. In fact, the principal of the school testified that after the incident she did not even feel it necessary to spend time in Collins' classroom to determine the long term effects of the incident. Accordingly, the court ordered that Collins be reinstated and that a hearing be scheduled to determine back pay due Collins. _Todd V. Lamb_ First Circuit Revives Gay Professor's Discrimination Lawsuit The U.S. Court of Appeals reversed the district court's grant of summary judgment in a discrimination case brought by a gay, HIV+ professor contesting a denial of tenure, holding that the court's jurisdiction to hear statutory discrimination claims was not preempted by a contractual grievance procedure. _Brennan v. King_, 1998 WL 115859 (March 20). Michael Brennan joined the faculty of Northeastern University in 1998 as a tenure-track assistant professor of industrial engineering. He applied for tenure in the 1993-94 academic year, and received positive recommendations at the departmental and decanal levels of review. However, the provost informed Brennan that he would recommend against tenure, and ultimately the president and the board of trustees followed the provost's recommendation. Brennan did not exercise his rights under the grievance procedure to contest the provost's recommendation before it went to the president. Instead, he filed charges with the Mass. Commission Against Discrimination (MCAD), which has jurisdiction over sexual orientation discrimination issues as well as disability discrimination claims, and the federal Equal Employment Opportunity Commission, which administers the Americans With Disabilities Act (ADA). Neither agency found a violation of its statute, but EEOC issued its standard right-to-sue letter and Brennan filed suit in federal court, claiming violations of the ADA and sec. 504 of the Rehabilitation Act, the Massachusetts law, and his employment contract. U.S. District Judge Richard Stearns granted summary judgment on all claims, finding that the university grievance procedure took priority. Writing for the court of appeals, Senior District Judge Pollak (E.D.Pa., sitting by designation) first addressed the question whether the Federal Arbitration Act required submission of this dispute to arbitration under the University's contractual grievance procedure. Pollak found that the university's grievance procedure could not take priority over Brennan's statutory claims because the grievance procedure does not authorize the arbitrator to award tenure as a remedy. "Evidently the arbitrator is confined to addressing non-substantive issues that may -- but also may not -- have some impact on the tenure decision ultimately made by the university's trustees." The most that an arbitrator could do would be to compel the provost to forward the favorable recommendation by the candidate's department and dean to the trustees. Furthermore, the faculty handbook describes the grievance procedure as being available to the dissatisfied tenure candidate, but does not describe the process as mandatory. The court also rejected the notion that some sort of "exhaustion of administrative remedies" concept should be applied to this case, noting that there was no allegation of a collective bargaining contract under which the right to sue might be held to be waived or forestalled until contractual remedies could be exhausted. In this case, Brennan was suing to vindicate individual rights guaranteed by federal and state law, and the court found, at least as to his statutory claims, that he should be entitled to pursue them directly in court, having satisfied the requirement of first submitting them to the relevant administrative agencies. (Rehab. Act. sec. 504 does not require any administrative agency exhaustion prior to filing suit.) However, Brennan's breach of contract claim fell under a distinct analysis of state contract law, under which resorting to court instead of exercising a contractually available grievance procedure was questionable. Consequently, the court upheld the grant of summary judgment on the breach of contract claim, and remanded the case for further proceedings on the statutory claims. A.S.L. Federal Court Strikes Down Limitation on Public Employee Access to Sexually-Oriented Internet Material The U.S. District Court for the Eastern District of Virginia sided with professors at Virginia universities in declaring unconstitutional a state law intended to restrict state employee access to sexually explicit material on state-owned computers. _Urofsky v. Allen_, 1998 WL 86587 (E.D.Va. Feb. 26). The case was decided on motions for summary judgement, in which the plaintiffs, represented by the American Civil Liberties Union (ACLU), argued that "Restrictions on State Employee Access to Information Infrastructure", Va. Code sec. 2.1-804, violated the First Amendment of the Constitution. The plaintiffs alleged that the Act interfered with their research and teaching, particularly in regard to gender roles, sexuality, indecency laws, and the "fleshy school" of Victorian poets. The defendant argued that the law is a legitimate limitation of the speech of government employees. The law prohibits state employees from using state computers to access sexually explicit material, unless it was previously approved in writing by the Agency head. Material addressing homosexuality would fall within the prohibition of the Act. District Judge Brinkema stated the standard of review as when government employees speak on matters of public concern, their speech is entitled to First Amendment protection. Speech by public employees on matters of purely private concern is unprotected. Under this standard, the court must balance the interests of the employee as a citizen in commenting upon matters of public concern and the interest of the state, as employer, in promoting the efficiency of the public services it promotes through its employees. The court noted that the Act applies to sexually explicit speech that normally enjoys First Amendment protection. It also noted that the Act's broad definition of sexually explicit content could extend to the very research and debate that the plaintiffs noted in their complaint: "At stake is the ability of more than 101,000 public employees at all levels of state government to read, research, and discuss sexually explicit topics within their areas of expertise. This includes inquiry and debate by academics in the fields of art, literature, medicine, psychology, anthropology, and law, and the exchange of sexually explicit information and opinions by employees in Virginia's Departments of Corrections, Social Services, Juvenile Justice, and Mental Health, and the Office of the Commonwealth's Attorney General. Indeed, in the instant case, the Commonwealth's own attorneys were required to obtain written agency approval to make use of the Internet material they have identified as `sexually explicit' before they could submit it with their pleadings, noted the judge. Because intellectual debate deals with sex, the court found that the speech of public employees on sexually explicit matters may be in the public concern and therefore protected by the First Amendment. The state argued that "state employees computer use is not protected speech under the First Amendment because the employees are acting in their capacities as government employees, not public citizens." Further, the state advanced to justifications for the restriction imposed by the law: (1) to maintain operational efficiency in the workplace, and (2) to prevent the creation of a sexually hostile work environment. The state recited instances in which the workplace had been disrupted or an employee had complained about sexually-explicit materials displayed on office computers. While noting the legitimate concerns of the state, Judge Brinkema found that the law was "both fatally overinclusive and underinclusive," as it did not necessarily reach all material that might cause the evils it was intended to prevent, but it broadly swept into its reach many instances of harmless materials. The judge also noted the restricted grounds on which permission could be given under the Act to access sexually-explicit materials, and evidence in the record showed that "implementation of the approval process has proven problematic." The court also noted that there were content-neutral ways to achieve the state's goals, by prohibiting "unauthorized use" of state equipment. Given all these flaws, the court concluded that the law did not constitute a "reasonable response" to the state's legitimate interests because "the Act fails to advance these interests in a direct and material way." Indeed, the Act's "poor fit" suggested that it was "intended to discourage discourse on sexual topics, `not because it hampers public functions but simply because [the state] disagree[s] with the content of employees' speech.'" Thus, the state failed to meet its burden to justify an abridgement of speech, and summary judgment was granted in favor of the plaintiffs. _Paul Twarog & Arthur S. Leonard_ Dispute Continues Over McVeigh Reinstatement In _McVeigh v. Cohen_, 983 F.Supp. 215 (D.D.C., Jan. 26, 1998), U.S. District Judge Stanley Sporkin ruled that the U.S. Navy violated the "Don't Ask, Don't Tell, Don't Pursue" policy on gays in the military by discharging Timothy McVeigh because his America On-Line member profile (posted under an alias) appeared to indicate that he might be gay. Sporkin enjoined the Navy "from taking any adverse action against Plaintiff, including discharging Plaintiff from the United States Navy or otherwise hindering Plaintiff's Naval Service, on the basis of his alleged sexual orientation so long as Plaintiff is in compliance with 10 U.S.C. sec. 654 and relevant regulations. . ." After this decision was issued, it was speculated that McVeigh and the Navy would reach a settlement under which he could take early retirement with full benefits. That apparently hasn't happened, and McVeigh sought a further hearing with the court, charging that the Navy had refused to reinstate him to an appropriate position. At a hearing held on March 5, the Navy contended that it had offered McVeigh three alternative postings, but he had rejected them, claiming that they were not commensurate with his rank and experience. The Navy also argued that the court had no jurisdiction to review its decisions about where to assign McVeigh. In an opinion issued March 11, _McVeigh v. Cohen_, 1998 WL 116270, Judge Sporkin rejected the Navy's contention. While agreeing that a court may not order the Navy to give McVeigh a specific assignment, Sporkin concluded that he did have the authority to determine whether the assignments offered to McVeigh were in compliance with his order, and scheduled a hearing on March 26 for factual inquiry on the clashing contentions concerning the appropriateness of the postings offered to McVeigh. At the March 26 hearing, according to an Associated Press report, Sporkin ordered the Navy to offer McVeigh an appropriate posting by June 1, and set a hearing for that date to oversee compliance with his order. The Navy contends that although an opening did occur recently for a "chief of boat" position similar to the one from which McVeigh had been discharged, it had concluded that McVeigh was not the best qualified person for that position. At the hearing, the Navy also raised doubts about whether someone now suspected of being gay should be assigned to a nuclear sub with its close living quarters, but a Justice Department spokesperson insisted that the government intends to reinstate McVeigh, evidently signalling a reluctance to appeal Sporkin's order to the D.C. Circuit. A.S.L. NY Federal Court Rules Gay Discrimination Claim Against Securities Firm Must Go to Arbitration Jonathan Gold, who filed an employment discrimination suit against Deutsche Morgan Grenfell alleging sex and sexual orientation discrimination under both Title VII and New York state laws, must submit his dispute to arbitration, according to a March 19 ruling by U.S. District Judge Kimba Wood in _Gold V. Deutsche Aktiengesellschaft_, 1998 WL 126058 (S.D.N.Y.) (not officially published). Gold was hired by defendant out of the MBA program at New York University as a trainee. In April 1996 he was transferred from his original posting to Deutsche Morgan Grenfell, where he alleges that "he was required to do demeaning work, and subjected to disparaging comments by his supervisors on the basis of his sexual orientation." Gold also alleges that the employer maintained a "working environment that was hostile to individuals whose sexual preference is for individuals of their same sex." Gold was discharged June 30, 1996, and filed his lawsuit in February 1997. The defendants moved to dismiss for failure to state a claim, or in the alternative to defer the case to arbitration. (Gold's apparent failure to allege a violation of the New York City Human Rights Law certainly raises questions about whether he has stated a claim, given the slim likelihood of persuading a federal court that a hostile environment case based on the sexual orientation of the plaintiff would be actionable under Title VII or the NY State Human Rights Law, neither of which expressly forbids sexual orientation discrimination.) In common with most of those hired by the financial services industry, Gold had signed the industry's uniform application form which includes an agreement that all disputes between employees and employers in the industry are subject to binding arbitration. Although in some contexts, i.e., labor-management collective bargaining agreements, the federal courts have held that employees may assert statutory employment discrimination claims despite the existence of a grievance arbitration process in their union contracts, the federal courts have generally found that the tight arbitration provision in the National Association of Securities Dealers application form essentially ousts the federal courts of jurisdiction to hear discrimination lawsuits against securities firms. Based on these precedents, Judge Wood granted the defendants' motion to compel arbitration, and ordered the court proceedings stayed pending such arbitration. A.S.L. Virginia Federal Court Denies Summary Judgement in Prisoner Rape Case In a rare instance of allowing a prisoner rape 8th Amendment case go to trial, U.S. District Judge Ellis ruled in _Wilson v. Wright_, 1998 WL 130018 (E.D.Va., March 19), that prisoner Ronald Wilson had stated a potentially valid 8th Amendment claim against a prison official who was responsible for cell assignments, and that controverted facts precluded deciding the case on summary judgment for either party. Wilson, described as "a 5'8" tall, 136 pound white male" who was 19 years old at the time in question, was sentenced to 28 years for breaking and entering, burglary, and grand larceny, was placed in the general prison population in Greensville Correctional Center. He was assigned to share a double cell with inmate Robert Ramey, described as "a 38-year-old, six-foot one-inch, 290-pound African- American male serving a 33-1/2 year sentence for the abduction- with-intent-to-defile and forcible sodomy of a twelve-year-old boy." Ramey's prison record showed that he had a history of violence and sexual assault in the prison. Predictably, Ramey anally raped Wilson within a week of Wilson's assignment to share his cell. Wilson complained, and ultimately obtained a reassignment (and protective custody when word of his complaints spread to other inmates who then threatened him with retribution for turning in Ramey). Ramey was disciplined for the incident. Wilson sued prison officials, claiming a violation of his 8th Amendment rights. Most of the prison officials were dismissed from the case, which has boiled down now to one named defendant, Carmen Baylor, the employee who made the cell assignment. Baylor claims that she had not consulted Ramey's prison file before assigning Wilson to share his cell, even though checking the files of both inmates is supposed to be standard prison procedure. Ramey denies having assaulted Wilson. Judge Ellis concluded that it was possible, given the state of the record on cross-motions for summary judgment, that a jury could conclude that Ramey did assault Wilson (there was medical evidence of rectal trauma the next day) and that Baylor's conduct evinced culpable indifference to the welfare of Wilson in making the cell assignment, and concluded that the case should go to trial. A.S.L. NY Civil Court Blocks Eviction of Gay Life Partner New York City Civil Court Judge Hoffman has issued an order blocking the eviction of Vance Jones, who claims to be the surviving gay life partner of Richard Watts, who died from AIDS on August 23, 1991. _170 West 85 Street HDFC v. Jones_, N.Y.L.J., 3/18/98), p. 29, col. 6 (N.Y.Co.Civ.Ct.). Watts and Jones, already a couple for several years, moved into the apartment at 170 West 85th Street together in 1983. When the building converted to a co-op in 1989, Watts purchased the shares for the apartment, but both men contributed toward their living expenses, according to papers filed by Jones in this lawsuit, and held themselves out as family members to relatives and friends. There's no indication in the court's decision that the men ever filed a domestic partnership certificate with the city or took any action to require the co-op to recognize them as a couple. Watts died without a will or any other formal legal document recognizing Jones as his heir or family member. Jones continued to live in the apartment after Watts' death, and the co-op took no action until April 1997, when it filed suit in the Surrogate's Court seeking appointment of an administrator for Watts' estate so that the co-op could gain possession of the apartment. The co-op's petition never mentioned Jones, but stated that Watts' only surviving heir was a sister. There is no indication that Jones was notified that the co-op was filing these papers in the Surrogate's Court, or that the Surrogate who acted in the case, Hon. Eve Preminger, had any knowledge about these circumstances when she appointed the Public Administrator for New York County, Ethel Griffin, to administer Watts' estate. Griffin, acting as administrator, surrendered to the co-op Watts' shares and proprietary lease. The next month, a cousin of Jones filed a complaint at the City Human Rights Commission, claiming that the co-op was harassing Jones and discriminating against him by failing to designate him a successor to Watts on the proprietary lease. The co-op retaliated by filing a lawsuit seeking to evict Jones. Jones, who is allegedly mentally incompetent, has had a court guardian ad litem appointed to represent him. In its recent ruling, the Civil Court ordered the co-op to let Jones continue living in the apartment while the Human Rights Commission deals with his discrimination claim. The Human Rights Commission has the power to order the co-op to issue the proprietary lease to Jones as a succeeding family member to Watts, according to Judge Hoffman's decision, if the Commission finds that Jones and Watts were family members. A.S.L. Marriage & Domestic Partnership Notes Voters in Oak Park, Illinois, passed an advisory referendum on March 17 supporting the establishment of a city registry for same- sex couples. The vote was 5035 to 4792. _Chicago Sun-Times_, March 19. Tower Records, which operates 187 retail stores throughout the U.S., announced that effective April 1 it will be providing medical, dental and vision benefits to same-sex partners of its employees. The new benefits program will also provide COBRA eligibility for same-sex partners (i.e., continuation of coverage if their employee partner loses his or her job) and will expand Tower's leaves of absence policy for employees to include leaves due to a family death or illness involving a same-sex partner. _Sacramento Bee_, March 3. "Freddie Mac," the Federal Home Loan Mortgage Corporation, announced that it began providing domestic partnership benefits to its staff as of Jan. 1. _Washington Blade_, Feb. 27. In pending litigation challenging San Francisco's ordinance requiring city contractors to extend domestic partnership benefits, U.S. District Judge Claudia Wilken issued a temporary restraining order on Feb. 27 exempting Federal Express Corp. from compliance with the ordinance. _Air Transport Assoc'n of America v. City and County of San Francisco_, No. C97-01763 (N.D.Cal., Feb. 27)(see BNA _Daily Labor Report_ No. 44, 3/6/98, p. A-5); _San Francisco Chronicle_, Feb. 28. FedEx's compliance became an immediate issue due to ongoing negotiations to lease the corporation 100,000 square feet of building space at the city's airport. "If FedEx signs the contract with the city's status quo provision and this court upholds the ordinance," said Judge Wilken, "the company will be forced to adopt a benefits policy and maintain it for the length of the lease even though the city's insistence on that policy might be unlawful." On the other hand, if the law has been held invalid by the time the lease ends, "FedEx will have to choose between continuing to provide these benefits or withdrawing the benefits and suffering an adverse effect on employee morale. In either case, FedEx would suffer damages that could not easily be quantified and consequently amount to irreparable injury." Wilken found that without this lease, FedEx would have great difficulty in continuing to provide its current package delivery services, and, according to the judge, "serious" questions are raised by the case concerning ERISA preemption of the city's authority to adopt the ordinance. A further hearing on the matter was scheduled for April 3. In a refreshing change from some recent cases, New York City Civil Court Judge Arlene Hahn found a non-traditional family relationship in a tenant succession case without significant financial documentation of interrelationship. _King David Development Co. v. Artega_, NYLJ, 3/11/98 (NYC Civ. Ct., Housing Part, N.Y. Co.), p. 27, col.4. The rent stabilized tenant died from AIDS. The respondent had moved in with him and established something akin to a "mother and son" relationship. Judge Hahn found that she had presented proof on 6 of the 8 factors mentioned by tenant succession regulations, the only major gap being lack of documentary evidence of financial interdependence such as joint bank accounts, credit cards or the like. Hahn noted that all eight factors need not be satisfied, and that it was not unusual for people with limited assets to lack the formal ties with financial institutions that would generate such documentation. Arizona Superior Court Judge Allen Minker (Greenlee County) ruled March 13 that it is legal for Pima County to extend health insurance benefits eligibility to the unmarried domestic partners of its employees. The county's Board of Supervisors approved the policy in March 1997, but implementation was held up when taxpayers protested to the County Attorney's Office, which filed an action in Superior Court challenging the Supervisors' authority to adopt the policy. According to a press report, Minker's opinion offered little explanation, merely asserting: "The legal authorities do not support the position of the county attorney. The Board of Supervisors did act within their authority on this case." It was unknown at press time whether the county attorney would appeal. _Arizona Daily Star_, March 14. Opposition to same-sex marriage continued in several state legislatures. On March 11, the Iowa House of Representatives and the Kentucky House of Representatives passed bills that would deny legal recognition of same-sex marriages. _Des Moines Register_, March 12; _Chicago Tribune_, March 12. However, according to an internet posting on March 15 by the West Virginia Lesbian & Gay Coalition, a similar ban passed by both houses of that state's legislature has died in conference committee, at least for now. A committee of the Central Conference of American Rabbis of Reform Judaism has issued a report on the issue of same-sex marriage. The Conference voted in 1996 to urge that civil marriage be available to lesbians and gay men, but had stated in that resolution that it was not taking a position with respect to the availability of a Jewish religious marriage for a same-sex couple. The new report, published in the CCAR's Journal (Winter 1998), urges that the Conference refrain from taking a position on this issue, because the committee was unable to achieve a consensus. A majority of the committee feels that the Jewish concept of religious marriage is so heterosexually specific that it should not be opened up to same-sex couples; a minority of the committee believes that reform Rabbis should be able to perform Jewish religious wedding ceremonies for same-sex couples. The entire committee agreed that congregations and rabbis should recognize lesbian and gay families and households within their congregations. C.C.A.R. Responsa Committee, _On Homosexual Marriage_, CCAR Journal, Winter 1998, pages 5-35. A.S.L. Law & Society Notes In _Stringfellow's of New York v. City of New York_, 1998 WL 77749 (N.Y.Ct.App., Feb. 24), New York's highest court rejected a constitutional challenge to a new city zoning ordinance that would sharply reduce the permissible locations for sex-oriented businesses. The Giuliani Administration exulted and announced plans to implement the ordinance, but determined sex shop owners have managed to stall implementation with a federal suit, claiming that the ordinance does not leave sufficient realistic locations for sex-oriented businesses. Their claim is now pending before the U.S. Court of Appeals for the 2nd Circuit. The plaintiffs have shown that a substantial number of sites identified by City officials as "available" for commercial uses are actually nothing of the kind, located in undeveloped marshland, in areas occupied by large, established businesses, in parking lots and public parkland, etc. On Feb. 20, President Bill Clinton issued a directive that requires all federal government health insurance plans, including those purchased by the government from private insurance companies to cover health care costs of federal employees, to adopt a Patients Bill of Rights that bans discrimination, inter alia, on the basis of sexual orientation. A White House press release indicated that because the directive will apply to Medicare, Medicaid, all military and veterans health plans, etc., about 85 million Americans are covered under the directive. _Washington Blade_, Feb. 27. Several openly gay public officials successfully won election in recent weeks. In Tempe, Arizona, Neil Giuliano, who came out during his second term as mayor, won re-election with 56 percent of the vote. In Massachusetts, Elizabeth Malia, an openly lesbian candidate, won a special election to fill a vacant seat in the Massachusetts House of Representatives, thus becoming the state's first openly gay state legislator in two decades. (Elaine Noble, who served in the Mass. House in the mid-1970s, was the first openly-gay state legislator in the nation.) Another openly-gay candidate, Gary Resnick, won election to the Wilton Manors, Florida, City Council. _Southern Voice_, March 19. Most of the scientific research on biological bases for homosexual orientation has focused on male subjects. Early in March there were nationwide press reports about a new study published in the _Proceedings of the National Academy of Sciences_ showing, apparently for the first time, a physical characteristic more prevalent in lesbians than in heterosexual women: a variation in hearing and how individuals process sound sources. The study found that lesbians' hearing was more like men than like heterosexual women, possibly indicating physical differences in brain structure correlating with sexual orientation. The _Daily Record_, a legal newspaper in Baltimore, Maryland, reported that the state's Commission on Judicial Disabilities has issued a warning to Circuit Court Judge Lawrence H. Rushworth concerning his reference to a father's homosexuality in ruling on a child visitation matter. Rushworth's decision to deny overnight visitation was overturned by the state's Court of Special Appeals, but the state's highest court, the Court of Appeals, has agreed to review the case. Maryland has adopted the ABA Model Code of Judicial Conduct, which forbids bias on the basis of sexual orientation by judges. _Daily Record_, March 12. The California Court of Appeal, 4th District, recognized parental rights and responsibilities of "non-biological" parents in _Marriage of Buzzanca_, 1998 WL 102105 (March 10). An infertile husband and wife arranged to have an embryo genetically unrelated to either of them implanted in a woman, serving as a "surrogate," who would carry the fetus to term and provide them with the child. After the surrogate became pregnant, the husband and wife split up, and the question of their parental rights or responsibilities came before the trial court, which decided, extraordinarily enough, that the youngster (who had been born by the time of the trial court's decision) had no legal parents. Reversing this decision, the court of appeal noted the precedent that a man could be a father even though he did not contribute sperm if his wife conceived through donor insemination. Based on this principle, the court decided that "a husband and wife [should] be deemed the lawful parents of a child after a surrogate bears a biologically unrelated child on their behalf." Thus, the matter was remanded to the trial court for a declaration that the parties are the legal parents of the child, and for a determination of issues of custody and visitation. The _Washington Blade_ reported March 13 that significant numbers of young gay men may inadvertently render themselves disqualified for college or vocational financial aid from the federal government by failing to register with the Selective Service System. Although Congress has banned military service by openly-gay people, that does not mean that gay men are excused from compliance with the Selective Service Law, which requires all male citizens to register upon reaching age 18. Federal assistance programs disqualify any male who has failed to comply with the Selective Service Law. The city council in Fort Collins, Colorado, gave final approval on March 4 to a gay rights ordinance scheduled to take effect March 13, covering employment, housing and public accommodations, but opponents promptly stated that they would attempt to get a repeal referendum on the ballot. _Denver Post_, March 5. Reacting to the repeal of a recently-passed gay rights ordinance by the Salt Lake City Council, City Attorney Roger Cutler has drafted a new proposed ordinance that would protect city employees from discrimination based on criteria that are not "job- related." This is intended to be responsive to those Council members who were unhappy with granting "special rights" to gay people. _Deseret News_, March 5. A.S.L. Pending Litigation As we went to press, the Supreme Court was scheduled to hear oral argument March 31 in _National Endowment for the Arts v. Finley_, No. 97-371, an appeal of 100 F.3d 671 (9th Cir.), in which the 9th Circuit held unconstitutional a federal directive that the NEA "take into consideration general standards of decency and respect for the diverse beliefs and values of the American public" in deciding whether to fund particular projects. The action was brought by four performance artists -- three of whom are openly lesbian or gay -- who were denied grants under this standard. The 9th Circuit found a 1st Amendment free speech violation; the Clinton administration petitioned for certiorari. A coalition of civil rights groups has filed suit on behalf of the members of a high school gay/straight student club in Salt Lake City, challenging discrimination by the local school board. _East High Gay/Straight Alliance v. Board of Education of Salt Lake City School District_, U.S.Dist.Ct., Utah (filed 3/19/98). The suit alleges violations of the Equal Access Act, the First Amendment, and other federal laws. In order to keep from having to recognize this student group or allow it to meet on the high school campus, the school board reclassified certain social clubs as "curricular" and allowed other clubs to meet unofficially, according to the complaint. Lambda Legal Defense & Education Fund is lead counsel in the case, joined by the ACLU of Utah, the ACLU of Northern California, and the National Center for Lesbian Rights. Cooperating attorneys on the case include Marlin G. Criddle and Laura Milliken Gray of Salt Lake City, and Heller Ehrman White & McAuliffe, a Los Angeles-based law firm. _Lambda Press Release_, March 19. A.S.L. Litigation Settlements and Verdicts The Alexander Hamilton Post (San Francisco) of the American Legion has settled its discrimination lawsuit against the California Legion. The suit, filed in San Francisco Superior Court in 1996, alleged that the Legion had violated state antidiscrimination law by its homophobic treatment of the Hamilton Post, which is an organization of gay and lesbian military veterans. Under the settlement, the state body will make a payment of damages of undisclosed amount, will cease denigrating the gay chapter, will instruct the editor of its publications to do the same, and will encourage its districts around the state to tell new members that special-interest posts like the Hamilton post exist. _San Francisco Examiner_, March 3. The City of Tucson, Arizona, has settled a lawsuit brought by a police officer who was discharged for making homophobic remarks. Joseph Hite was fired in 1996 after several incidents in which it is alleged that he made homophobic remarks. Hite sued the city, claiming that it had failed to follow the requirements of civil service rules in his case. _Hite v. City of Tucson_. His discharged was upheld by the civil service commission, but a state court vacated the matter for rehearing based on allegations that one of the commissioners had improperly consulted independent experts about the case. The matter was about to be reheard by the commission when the settlement was announced. Under terms of the settlement, Hite will be reinstated and then resign effective last Jan. 4, and will receive $55,000 in back pay and legal fees. The police chief announced he was satisfied with this resolution, since he does not have to take Hite back on the force. _Arizona Daily Star_, March 4. A Smith County, Texas, jury voted to impose a 30-year sentence and a $10,000 fine on Billy Glenn Adams, who was convicted of wounding Kevin Adams (not related to him) and leaving him partially paralyzed in one arm. The defendant claims he was drunk and does not remember shooting Kevin Adams, but the defendant had told others that he was out "queer-hunting" that night and bragged about having shot a "queer." _Houston Chronicle_, March 6. A Houston, Texas, jury has voted to impose the death sentence on Derrick Leon Jackson, 29, in the beating and stabbing murders of Richard Alan Wrotenbery and Forrest G. Henderson, both then 31, in their apartment in September 1988. The case took so long to come to trial because Jackson was identified through new fingerprint techniques that did not exist at the time of the murder. In pleading against the death penalty, Jackson's attorney mentioned to Henderson having allegedly gone to gay bars in Houston's Montrose neighborhood the night before the killings, picking up Jackson, and taking him back to the couple's apartment. Jackson has never stated any reason for the murder. _Houston Chronicle_, March 18. Rudolph A. Serra, President of the Stonewall Bar Association in Detroit and a member of that city's Human Rights Commission, has informed us of a case in which he represented a gay Grand Rapids teenager who was prosecuted for "accosting and soliciting a minor for immoral purposes." The Rockford, Michigan, jury acquitted Jason Marshall, 19, on March 9, after the alleged victim, a 16- year-old, who was forced to testify, effectively repudiated the prosecutor's version of the case. Serra issued a press release blasting the prosecutor for forcing the young "victim" to testify publicly about his homosexuality, in a case where there was no evidence that the defendant had ever solicited the "victim" to engage in any sexual activity. _People v. Marshall_. Another strike-out for lesbian mother Sharon Bottoms: Henrico County, Virginia, Circuit Court Judge Buford M. Parsons, Jr., who has consistently ruled against Bottoms in her struggle to regain custody of her son Tyler from her mother Kay Bottoms, has ruled against a motion by Sharon Bottoms to expand her visitation rights to include contact with Bottoms' partner, April Wade. Despite a directive from the state's intermediate appellate court that Parsons reconsider his guidelines from prior visitation rulings, see 1997 WL 421218 (July 27), Parsons made no statement in his brief order of a reason for rejecting Bottom's request. The court of appeals had ruled that Parsons erred in banning contact between Tyler and Wade solely because Wade is a lesbian. A gay nightclub in Minneapolis, called "Gay 90's," had begun to attract many heterosexual patrons in recent years to view its drag shows. Recently, six heterosexuals filed a lawsuit claiming they had either been refused admittance or treated poorly in the club due to their sexual orientation. An out-of-court settlement was reached on March 14, under which the club will offer a formal apology to the plaintiffs and reaffirm an open-door policy to people of any sexual orientation. In addition, the club and the plaintiffs will make a joint financial donation to Camp Heartland, a summer camp for children with AIDS. Minnesota law prohibits discrimination on the basis of sexual orientation by places of public accommodation. _Star-Tribune_ (Mpls.-St. Paul), March 17. A.S.L. International Notes The Canadian Supreme Court heard arguments on March 18 in a case challenging the definition of "spouse" in the context of the right to seek an alimony award under the Ontario Family Law Act. That act defines a spouse as a "person of the opposite sex." In the case, a lesbian couple, identified as "H" and "M," had split up, and one was seeking an award of alimony from the other. The lower court ruled that excluding a same-sex couple from the coverage of the law was discriminatory, in violation of the federal charter of rights. The couple then settled the case, but the province of Ontario appealed, as the lower court rulings placed a cloud on the legitimacy of the Family Law Act. If the lower court rulings are upheld, family law provisions throughout Canada might have to be revised to extend various rights to same-sex couples. _Canadian Broadcasting Corp. Newsworld Online_, March 18. The French-language publication "Tels Quels" in its March 1998 issue provides a summary of a Circular Letter issued last fall by the Minister of Internal Affairs of Belgium, setting forth conditions under which international same-sex partners may seek permanent residence in Belgium. Although there are several strict conditions set forth, the most significant are that one member of the couple must already be a Belgian citizen, they must cohabit in a long-lasting relationship memorialized in a notarized living- together contract, and the Belgian citizen member of the couple must assume legal responsibility for the support and continuing good behavior of the non-citizen. _From a summary posted by Alan Reekie for the International Lesbian & Gay Association, posted to the association's internet mailing list._ A.S.L. Professional Notes LeGaL Member Lewis A. Silverman has been elected Village Justice of the incorporated village of Lake Grove in Suffolk County, Long Island, New York. He is also a professor and Director of the Family Law Clinic at Touro Law Center. Gay attorney Steve Martin has been sworn in as the new mayor of West Hollywood, California; his mayor pro tem is another openly gay councilmember, John Heilman. President Bill Clinton has nominated openly-gay attorney Q. Todd Dickinson to be Deputy Assistant Secretary of Commerce to head the Patent and Trademark Office. Dickinson, a University of Pittsburgh Law School graduate, is a past board member of Human Rights Campaign, and was co-chair of Philadelphia Attorneys for Human Rights, a lesbian/gay bar association, from 1991 to 1995. He has practiced intellectual property law for almost two decades in industry and law firms, and belongs to the major professional associations in that field. _Washington Blade_, March 13. Gay & Lesbian Advocates & Defenders (GLAD), New England's public interest legal organization, is expanding. GLAD seeks a full-time Staff Attorney to litigate sexual orientation and HIV-related civil rights and discrimination cases throughout New England. Qualified candidates must have 5-10 years of litigation and/or appellate experience; commitment to and familiarity with legal issues relating to the lesbian, gay and bisexual communities and to HIV and AIDS issues; experience with public speaking, media and public relations; and ability to supervise staff, interns and volunteers. New England bar admission preferred. Salary depends on experience; excellent benefits. Send confidential resume, cover letter and writing sample to Gary D. Buseck, Esq., GLAD, 294 Washington Street, Suite 740, Boston, MA 02108-4608. Servicemembers Legal Defense Network (SLDN) seeks a Legal Director. SLDN is the sole legal aid and watchdog organization for those harmed by "Don't Ask, Don't Tell, Don't Pursue." The ideal candidate is a lawyer with 5-10 years experience with significant client contact. Military law, civil rights law, legal aid experience and/or prior military service is ideal, though not required. Candidate must have highly developed management and organizational skills. Candidate will have primary responsibility for all cases and management of legal staff, including legal interns. The Legal Director will assist the Executive Directors with policy, watchdog, education & outreach and other projects as assigned. Salary: 40-50, depending on experience. SLDN is an equal opportunity employer. Please send resume to SLDN, Legal Director, P.O. Box 65301, Washington, D.C. 20035-5301. The 13th Annual Dinner of the Massachusetts Lesbian and Gay Bar Association on May 8 will feature U.S. District Court Judge Nancy Gertner as keynote speaker. The MLGBA will also honor Bennett H. Klein, Esq., a staff attorney at Gay & Lesbian Advocates & Defenders, with its Community Service Award. Klein is lead counsel in Bragdon v. Abbott, see below. The Association will present its Kevin Larkin Memorial Award to Michelle Benecke and C. Dixon Osburn, co-executive directors of the Servicemembers Legal Defense Network. A.S.L. AIDS & RELATED LEGAL NOTES 2nd Circuit Reverses Summary Judgment in "Off-Label Use" Suit Against ERISA Benefits Plan Reversing a trial court's grant of summary judgment in favor of an employee benefits plan governed by the Employee Retirement Income Security Act (ERISA), a 2nd Circuit panel ruled Jan. 20 that a home health service company caring for a person with AIDS covered by the plan was entitled to a trial of its claim that "off-label" administration of particular drugs prescribed by the person's doctor should be covered under the plan. _I.V. Services of America v. Trustees of the American Consulting Engineers Council Ins. Trust Fund_, 136 F.3d 114. The case is very significant, because many treatments in connection with AIDS have been developed by doctors using existing licensed drugs, and FDA labelling has not caught up with current accepted uses in many instances. Michael Whitehurst, a hemophiliac with AIDS, was hospitalized with CMV Retinitis. His physician, Dr. Mark Pierce, treated him with Ganciclovir, which has a side effect of neutropenia. To treat neutropenia, Dr. Pierce prescribed Neopogen. The costs of both treatments were reimbursed by the plan. When Whitehurst was to be discharged to his home, Dr. Pierce prescribed continuing treatment with Neopogen and Leukine to complement continuing Ganciclovir treatment at home. I.V. Services was contracted to provide the home drug therapy to Whitehurst. When I.V. submitted its first bill to the plan, it was denied reimbursement for these drugs, the plan asserting, for the first time, that these drugs were not covered because they were experimental and not specifically approved by the Food and Drug Administration for these uses. The trial judge, construing the benefits plan documents, agreed with the plan that the documents specifically limited coverage to FDA-approved uses, and granted summary judgment. On appeal, the 2nd Circuit, in an opinion by Judge Guido Calabresi, reversed, finding that the plan document's language was ambiguous enough on the issue to leave a fact question requiring jury consideration. The plan document provides that drugs provided for home health care are covered if they "are approved by the United States Food and Drug Administration for general use in treating the injury or illness for which they are prescribed." The plan asserts that this means that they need only reimburse if the FDA has specifically approved a drug for a particular treatment for a particular disease. In this case, Neupogen has been approved for combatting neutropenia that results from the treatment of certain cancers, but has not been specifically approved for combatting neutropenia that results from Ganciclovir treatment for CMV retinitis. I.V. contends that once the FDA has approved a drug for treating neutropenia, the plan should be obligated to reimburse for any use of that drug to treat neutropenia, regardless of the cause of the neutropenia. Finding that either interpretation of the plan language would be plausible, Calabresi found that it was clear error for the district court to rule as a matter of law that only one interpretation was correct. Additionally, I.V. argued that the plan had reimbursed for Neupogen while Whitehurst was hospitalized, and that the plan document specifically provides that drugs that are reimbursed for in- patients will also be reimbursed subsequently when the patient gets home care. The plan argues that the prior reimbursement occurred due to clerical error rather than a conscious decision that this medication was covered. Calabresi asserted that summary judgment on this point had been improper as well; an affidavit by the moving party asserting that the earlier payments were made due to clerical error need not be believed by the fact-finder, and, in any event, the truth or falsity of that contention was not determinative on the ultimate question of whether the plan is obligated to pay for this drug. The case was remanded for further fact-finding and trial. A.S.L. Federal Court Rules Against HIV+ Campaign Official in HIV Disclosure Lawsuit Federal District Judge John T. Elfvin allowed the City of Buffalo to amend its response to a 1995 HIV disclosure lawsuit after a 22 month lag. _Adamczyk v. City of Buffalo_, 1998 WL 89342 (W.D.N.Y., Feb. 23). Judge Elfvin also granted summary judgement for the City regarding most of the suit. Also named in the suit were the Buffalo Police Department, the Erie County Democratic Party, and various John and Jane Does. On September 15, 1992, Laurence A. Adamczyk was arrested for DWI and obstructing governmental administration. He was asked if he was taking any medication. Adamczyk said that he was taking AZT because he was HIV+. Adamczyk's HIV status was noted on an unspecified form that was required to be completed for all incoming arrestees. Adamczyk, along with the unspecified form, were taken to the cellblock area. One of the officers noted on a prisoner control sheet: "A-4: Adamczyk, Lawrence --taking AZT for HIV." The police had, at the time, a policy of recording all medical information, including HIV-related information, on prisoner control sheets. The Police Department sent a copy of the form to the Clerk of the Buffalo City Court and the Erie County Probation Department. Adamczyk was released on September 22nd. Three years later, while Adamczyk was Erie County Executive candidate Dennis Gorski's campaign manager, an anonymous fax was sent to media outlets on September 7, 1995. It read in part: "DEAR VOTER, ... ONE CONCRETE FACT WE ALL MUST KNOW IS THAT GORSKI'S CAMPAIGN MANAGER, LARRY ADAMCZYK[,] IS INFECTED WITH AIDS AND IS HIV+. ALL VOTERS SHOULD KNOW THE PEOPLE AROUND GORSKI ARE NOT NORMAL PEOPLE... (ADAMCZYK['S] LAST ARREST AND CELLBLOCK SHEET ARE ATTACHED FOR PROOF)." When Adamczyk first filed suit, the City did not challenge Adamczyk's allegation that the prisoner control sheet had been sent to various media outlets. Much later, the City sought to amend its answer to assert a statute of limitations defense. While acknowledging "sympathy" for Adamczyk and the "shocking and reprehensible manner" in which his HIV status was disclosed, Judge Elfvin sought to "insulate" the Court and rule based solely on the evidence in the record. Adamczyk contended that he would be "unduly prejudiced" by the City amending their response. Specifically, he argued that if discovery were re-opened he would have to determine "precisely when the [Prisoner Control Sheet] was removed from the official files in which it resided." In granting the City's motion to amend, the Court found that Adamczyk knew in September 1992 that the prisoner control sheet had been created and shared with other governmental agencies and it was his obligation to pursue discovery at that time. Joseph F. DeMarco, a Probation Supervisor had called Adamczyk at the time to let him know of the document noting his HIV status and that he destroying "all copies" in his office, but that it would be shared with other agencies. Adamczyk did not dispute this in his deposition. Lacking proof that the Police released the prison control sheet to the media, the Court ruled that there was "insufficient evidence" for a jury to find the Police or any of the other agency named responsible for releasing the form. The Court dismissed Adamczyk's conspiracy claim as lacking proof. Specifically, Adamczyk did not show a key factor that he was a member of a class-based group entitled to protection. Of note, the Court did not find that the "alleged conspiracy was motivated by class-based discriminatory animus." The Court did not find the conduct of the unnamed defendants in 1992 to have been intentionally done to inflict emotional distress. Taking note of Adamczyk's failure to file a Notice of Claims before he filed his state claims, the Court dismissed most of Adamczyk's PPPL and Article 27-F claims. _Daniel R Schaffer_ Missouri Appeals Court Rejects Challenge to Conviction for Creating a Risk of HIV Infection The Missouri Court of Appeals affirmed a criminal conviction under a state statute which penalizes the creation of a risk of HIV infection. _State v. Bowens_, 1998 WL 85711 (March 3). A jury convicted Herbert Bowens of rape, kidnapping, and creating a grave and unjustifiable risk of HIV infection. On appeal, he argued that the statute criminalizing the risk of HIV infection was unconstitutionally overbroad, that the prosecution had failed to meet its burden of proof to show that he had created such a risk, and that the trial court had incorrectly excluded evidence of the victim's HIV-negative status. (Defendant also raised two other grounds for his appeal, unrelated to the HIV risk statute.) The Court of Appeals rejected Bowens' argument that the statute made no exception for knowing and consenting partners, which might violate conduct protected by _Griswold v. Connecticut_, 318 U.S. 479 (1965), because the defendant had failed to adequately raise the argument at trial, thereby waiving it as an issue on appeal. The Court of Appeals also rejected Bowens' second argument, that the evidence was insufficient to show that he had created a "grave and unjustifiable risk" of HIV infection. The jury could have found a risk, the court reasoned, based on the common knowledge that sexual intercourse can transmit HIV, and could have found that the risk was unjustifiable by virtue of the fact that the defendant raped the victim. In addition, because the assault injured the victim, the jury's finding that the risk was grave was supported. Finally, it was not error for the trial court to exclude evidence of the victim's HIV status. The Court of Appeals suggested that the defendant may have had an argument that such evidence was relevant because it went to whether the victim had misidentified him as the perpetrator of the crime, but that he failed to properly preserve the issue at trial. _Dirk Williams_ N.Y. Appellate Division Finds Proof of Exposure Necessary in AIDS Phobia Suit Reversing the trial judge, a panel of the New York Appellate Division, First Department, ruled Feb. 26 that an AIDS phobia plaintiff must allege actual exposure to HIV in order to maintain an action for emotional distress based on "AIDS phobia." _Bishop v. Mt. Sinai Medical Center_, 1998 WL 106038. Plaintiff Phyllis Bishop alleges that as she was exiting the hospital on May 31, 1991, she was "struck by a plastic dumpster which careened off a loading dock" and suffered a cut from an unidentified sharp object, resulting in bleeding. She went to the emergency room, where she was offered HIV testing and urged to take prophylactic doses of AZT in she had been exposed to HIV. She refused the medication or any testing, but subsequently took an HIV test from her physician more than a year later, which was negative. The hospital moved for summary judgment, noting prior New York cases holding that a claim for AIDS phobia is unreasonable unless it is based on actual exposure to HIV. The hospital also offered a sworn statement from the director of its Infectious Disease Clinic, asserting that the hospital's infectious control procedures made it unlikely that HIV-infected sharps would be implicated in this accident. Also, the hospital asserted that the dumpster came from the kitchen area, and would not have contained anything that could have been HIV-contaminated. The trial court refused to grant summary judgment, opining that because the sharp object that cut the plaintiff had never been recovered and tested, the possibility of actual exposure could not be ruled out as a matter of law. Reversing, the Appellate Division, in a per curiam opinion, noted that the burden is on the plaintiff to allege actual exposure in such a case, especially where, as here, the hospital's uncontradicted evidence showed that its normal procedures and the provenance of the dumpster appeared to rule out actual exposure. In this case, the court found plaintiff's "fear of contracting AIDS was too remote and speculative to be compensable." A.S.L. 7th Circuit Rejects Challenge to Trial Judge's Ruling on Expert Witnesses in Multidistrict HIV Case In _Matter of Rhone-Poulenc Rorer Pharmaceuticals, Inc._, 1998 WL 105490 (March 11), the U.S. Court of Appeals for the 7th Circuit rejected an attempt by the defendants to overturn an order by District Judge John F. Grady in the pending multidistrict litigation over liability for HIV transmission via blood products limiting the number of defense expert witnesses on common issues to 24. The defendants had proposed a list of 137 expert witnesses, arguing that there were enough individual plaintiff cases to justify designating the large pool of experts. Of course, the plaintiffs would be put to the expense of deposing all these experts, and the time consumed would drastically delay getting to trial. Judge Grady had decided that the defendants realistically need have no more than 24 experts in reserve on common issues in the cases. Writing for the Court of Appeals, Chief Judge Richard Posner found that this kind of order by a trial judge could not be overturned by writ of mandamus except for egregious abuses of discretion, and he rejected the contention that this order fell in such a category. A.S.L. NY Court Gives Green Light To Suit For Fraud/Wrongful Adoption of HIV+ Child In an action for fraud and/or wrongful adoption, Justice Cusick of the N.Y. Supreme Court, Richmond County, granted plaintiffs' motion to unseal the adoption records of infant plaintiff Justin LiGrecci, who is HIV+, and denied defendants cross-motions to dismiss and for summary judgement. _Moreau v. Roman Catholic Diocese of the City of New York_, NYLJ, 3/12/98, p.33, col.2. Plaintiffs allege that the defendant adoption agency possessed information pertaining to Justin's medical history and the circumstances surrounding his birth which placed him in a high risk category for contracting HIV. Justin was adopted on 1984 and was diagnosed with HIV in 1994. Thereafter, plaintiffs learned that the natural mother was a drug addict who may have engaged in prostitution, and that Justin was born addicted to drugs and consequently suffered from various medical conditions. The death of the birth parents was not disputed. Plaintiffs claim that the medical records of the birth mother and the postpartum records of Justin are necessary for the prosecution of the action and for the medical treatment of the child. Defendants, the Archdiocese of New York and the New York Foundling Hospital, opposed plaintiffs' motion, contending the infant plaintiff was already aware that he has HIV and that plaintiffs have not established medical need for the records via a physician's affidavit. Defendants further cross-moved for dismissal for failure to state a cause of action or in the alternative for summary judgement, arguing that fraud has a 6 year statute of limitations and that it began to run on or before the date of adoption ten years ago. Defendants also claim that the action is time-barred under state civil practice rules because the action was not brought within 2 years when the infant plaintiff was diagnosed with HIV. Justice Cusick found that plaintiffs' motion sufficiently established good cause to have the records reviewed in-camera, citing the child's entitlement to them and the possible relevant information they hold regarding the issues raised in the action. On the jurisdictional issues for the fraud/wrongful adoption action, the court found that there was a question of fact whether the action is time barred, specifically as to when the plaintiffs discovered or should have discovered the alleged fraud, not necessarily the date of adoption or date of diagnosis. The court dismissed on relevancy grounds defendants' argument that no HIV test existed in 1984, thereby freeing them of liability for not discovering Justin's sero-positive status or for concealing it from him. Under the same reasoning, the court found no prima facie showing by defendants that they are entitled to summary judgment as a matter of law. _K. Jacob Ruppert_ Federal Court Denies Habeas Petition from Convicted HIV+ Murderer In _Tokar v. Bowersox_, 1998 WL 125656 (E.D.Mo., March 19), U.S. District Judge Perry denied a petition for writ of habeas corpus by Jeffrey Tokar, who was convicted of murder in a jury trial and sentenced to death. Among the numerous grounds Tokar cited in his petition was that the trial court erred by allowing a fellow petitioner to testify about a statement Tokar had made in jail concerning his HIV status. During the penalty phase of Tokar's trial, the state called Benjamin Richardson, who had been a fellow prisoner of Tokar when he had been incarcerated for another crime prior to the commission of the murder in this case. Richardson testified that he had a conversation with Tokar in which Tokar speculated that he was being released early due either to an error or his medical condition. Richardson testified that Tokar told him that "he tested positive for HIV and he had nothing to lose; all he had to live was two years anyway, so there was not a damned thing you call could do to him." Tokar's attorney had objected in advance to Richardson's testimony, but was overruled by the trial court. In his petition, Tokar claimed that the admission of this evidence was likely to have prejudiced the jury against him. In rejecting this argument, Judge Perry wrote: "There is no specific constitutional right prohibiting disclosure a person's HIV status at trial." Perry concluded that admission of this testimony was not "so egregiously onerous that it denied petitioner a fundamentally fair trial." Perry focused on the rather slight credibility that Richardson would have had as a witness, speculating that the "jury may have disbelieved him entirely" and that there were so many aggravating factors in this case that the jury would likely have reached its decision in the penalty phase even if it disbelieved this testimony. A.S.L. Hospital Settles AIDS Discrimination Case The _Washington Post_ reported March 11 that George Washington University Hospital settled a suit brought by the U.S. Justice Department under the ADA on behalf of Ron Flowers, an HIV+ D.C. resident, who claimed he was denied service at the hospital solely due to his HIV status. Without admitting Flowers' allegations, the hospital settled the case with a payment of $125,000 to cover his compensatory damages and attorneys fees and signed an agreement with the Justice Department not to deny services to persons based on their HIV status. A.S.L. AIDS Law & Society Notes A study published in the _New England Journal of Medicine_ late in March confirmed that the addition of protease inhibitors to the available treatments for AIDS has sharply accelerated the decline in mortality from HIV-infection that had already been observed from the period immediately prior to the widespread use of these drugs in 1996. _Wall Street Journal_, March 26. According to one of the co-authors of the report, Dr. frank J. Pallella of Northwestern University Medical School, the drop in mortality is "phenomenal." Among the 1255 AIDS patients in the study, the mortality rate from AIDS dropped about 75% from January 1994 to January 1997, and the drop was "especially notable starting in early 1996, when many people infected with HIV. . . first began taking a combination of three of more medicines, including the new protease drugs. . . AIDS-related deaths plummeted almost 50% between the first and second quarters of 1996, and the death rate was halved again by the second quarter of 1997," according to the study. The results of this study reinforce the critical importance, in terms of legal policy, of securing protection against discrimination for HIV+ people who are not suffering severe AIDS symptoms, as to which the Supreme Court's decision later this year in _Bragdon v Abbott_, see below, will be crucial. The crucial importance of _Bragdon_ is also emphasized by the new push by federal authorities to encourage more widespread HIV testing. On March 26, the _New York Times_ reported the CDC's estimate that 250,000 U.S. residents are unaware that they are HIV+, and that more than 700,000 people who get HIV tests do not return to the testing center or call to find out their results. The _Times_ article noted that a new generation of HIV-antibody tests is now available that can produce a result in ten minutes after blood is drawn, obviating the need for people to wait a week or more for results and then get back to the testing center, but that so far few doctors or test centers have adopted these new tests. Of course, if more people know their HIV-status (and records of such status are more widespread), the need for protection from discrimination for those who are asymptomatic HIV+ is even greater. Expressing increasing impatience with the failure of the Clinton Administration to come to grips with the issue of federal funding for IV-needle exchange programs, the Presidential Advisory Council on HIV/AIDS voted to express "no confidence" in the administration's commitment towards AIDS prevention. Under existing legislation, the administration could approve such funding from existing appropriations by finding that research has documented the usefulness of this method to combat further spread of HIV. However, despite mounting evidence in support of this conclusion, the administration -- in the person of Secretary of Health & Human Services Donna Shalala -- has insisted on further study before making a decision. _Washington Post_, March 17. A.S.L. AIDS Litigation Notes As we went to press, the Supreme Court was scheduled to hear oral argument March 30 in _Bragdon v. Abbott_, No. 97-156, appeal from 107 F.3d 934 (1st Cir.), in which the lower court held that a dentist violated the Americans With Disabilities Act by refusing to perform routine dental services for an HIV+ woman in his office. The Court granted certiorari on three questions: Whether "reproduction" is a "major life activity" under the ADA; Whether asymptomatic HIV+ people are "per se disabled" under the ADA; and whether the opinion of a private health care provider, based on his "professional judgment," that he should not render care to an HIV+ person in his office merits deference by the federal courts under the ADA. The _Los Angeles Times_ reported March 11 that a married HIV+ soldier was sentenced by a military court to 15 years in prison for having unprotected sex with seven women without disclosing his serostatus. Army Spc. Raymond Humphries pleaded guilty to 7 counts of aggravated assault, 8 counts of adultery, 4 counts of sodomy, and one count of willfully disobeying an order to use a condom and disclose his HIV status to sexual partners. Humphries was immediately transferred to Ft. Leavenworth, Kansas, to begin serving his sentence. A.S.L. International AIDS Note On Feb. 13, Philippine President Fidel V. Ramos signed into law "An Act Promulgating Policies and Prescribing Measures for the Prevention and Control of HIV/AIDS in the Philippines." The legislation ranges widely over issues of education, safe practices and procedures, testing, screening and confidentiality, health support services, discrimination, and so forth. It is described in an internet posting by the United Nations' Country Programme Advisor, Geoff Manthey, as "well balanced" and as having been "developed through extensive discussions with the affected and infected communities," and is supported by the country's association of person with AIDS. A.S.L. PUBLICATIONS NOTED LESBIAN & GAY & RELATED LEGAL ISSUES: Bennett-Alexander, Dawn D., _Title VII Liability vs. Employee Confidentiality: Should an Employer be Liable for Failure to Act on a Sexual Harassment Claim When the Failure is Based on Harassee's Request for Confidentiality?_, 49 Labor L. J. 825 (February 1998). Boyle, James, _Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors_, 66 U. Cin. L. Rev. 177 (Fall 1997). Brown, Erika Maria, and Stephanie Greene, _From Private Clubs to Parades: How Accommodating Are State Laws?_, 42 N.Y.L.S. L. Rev. 125 (1998). Bybee, Jay S., _The Equal Process Clause: A Note on the (Non)Relationship Between_ Romer v. Evans_ and _Hunter v. Erickson, 6 Wm. & Mary Bill of Rts. J. 201 (Winter 1997)(part of _Romer v. Evans_ symposium). Chambers, David L., _Polygamy and Same-Sex Marriage_, 26 Hofstra L. Rev. 53 (Fall 1997). Chang, Robert S., and Jerome McCristal Culp, Jr., _Nothing and Everything: Race, _Romer_, and (Gay/Lesbian/Bisexual) Rights, 6 Wm. & Mary Bill of Rts. J. 229 (Winter 1997)(part of _Romer v. Evans_ symposium). Croome, Rodney, _Gay Law Reform: A Celebration Address_, 16 Univ. Tasmania L. Rev. 9 (1997) (part of symposium on homosexual law reform in Australia). Duncan, Richard F., _The Narrow and Shallow Bite of_ Romer_ and the Eminent Rationality of Dual-Gender Marriage: A (Partial) Response to Professor Koppelman_, 6 Wm. & Mary Bill of Rts. J. 147 (Winter 1997)(part of _Romer v. Evans_ symposium). Feather, Nancy J., _Defense of Marriage Acts: An Analysis Under State Constitutional Law_, 70 Temple L. Rev. 1017 (Fall 1997). Flagg, Barbara J., _"Animus" and Moral Disapproval: A Comment on_ Romer v. Evans, 82 Minn. L. Rev. 833 (February 1998). Kirby, Michael, _Seven Lessons of Hobart_, 16 Univ. Tasmania L. Rev. 1 (1997) (part of symposium on homosexual law reform in Australia). Koppelman, Andrew, Romer v. Evans_ and Invidious Intent_, 6 Wm. & Mary Bill of Rts. J. 89 (Winter 1997)(part of _Romer v. Evans_ symposium). Linton, Paul Benjamin, _State Equal Rights Amendments: Making a Difference or Making a Statement?_, 70 Temple L. Rev. 907 (Fall 1997). Nagel, Robert F., _Playing Defense_, 6 Wm. & Mary Bill of Rts. J. 167 (Winter 1997)(part of _Romer v. Evans_ symposium). Oliveri, Claudia, _Congress Wrestles with the Internet:_ ACLU v. Reno_ and the Communications Decency Act_, 6 Media L. & Policy (NY Law School) 12 (Fall 1997). Purvis, Alexandra, and Joseph Castellino, _A History of Homosexual Law Reform in Tasmania_, 16 Univ. Tasmania L. Rev. 12 (1997) (part of symposium on homosexual law reform in Australia). Russ, John A., IV, _Shall We Dance? Gay Equality and Religious Exemptions at Private California High School Proms_, 42 N.Y.L.S. L. Rev. 71 (1998). Slovic, Paul, _Trust, Emotion, Sex, Politics, and Science: Surveying the Risk Assessment Battlefield_, 1997 U. Chi. Legal Forum 59. Strasser, Mark, _Statutory Construction, Equal Protection, and the Amendment Process: On_ Romer, Hunter_, and Efforts to Tame_ Baehr, 45 Buffalo L. Rev. 739 (Fall 1997). Strong, S.I., Romer v. Evans_ and the Permissibility of Morality Legislation_, 39 Arizona L. Rev. 1259 (1997). Underwood, James L., _The Supreme Court's Assisted Suicide Opinions in International Perspective: Avoiding a Bureaucracy of Death_, 73 N. Dak. L. Rev. 641 (1997). Valdes, Francisco, _Acts of Power, Crimes of Knowledge: Some Observations on Desire, Law and Ideology in the Politics of Expression at the End of the Twentieth Century_, 1 J. Gender, Race & Justice 213 (Fall 1997). Waldo, Craig R., Jennifer L. Berdahl, and Louise F. Fitzgerald, _Are Men Sexually Harassed? If So, By Whom?_, 22 L. & Human Behavior 59 (February 1998). Wiener, Richard L., and Linda E. Hurt, _Social Sexual Conduct at Work: How Do Workers Know When it is Harassment and When it is Not?_, 34 Cal. Western L. Rev. 53 (Fall 1997). _Student Notes & Comments:_ Appleman, Bradley A., _Hate Speech: A Comparison of the Approaches Taken by the United States and Germany_, 14 Wis. Int'l L.J. 422 (Spring 1996). Beahn, John M., Reno v. ACLU_: The Communications Decency Act Hits a Red Light on the Information Superhighway_, 47 Catholic U. L. Rev. 333 (Fall 1997). Clark, Kaija, _School Liability and Compensation for Title IX Sexual Harassment Violations by Teachers and Peers_, 66 Geo. Wash. L. Rev. 353 (January 1998). Glynn, Katherine C., _Turning to State Legislatures to Legalize Physician-Assisted Suicide for Seriously Ill, Non-Terminal Patients After_ Vacco v. Quill_ and _Washington v. Glucksberg, 6 J. L. & Policy 329 (1997). Greene, Hillary, _Undead Laws: The Use of Historically Unenforced Criminal Statutes in Non-Criminal Litigation_, 16 Yale L. & Pol. Rev. 169 (1997) (argues that laws which are not generally enforced, such as sodomy laws against consenting adults in private, should not be used in secondary contexts, such as child custody disputes, to disadvantage the parties who are presumed to violate such laws, such as gay men and lesbians). Hall, Shelley M., _Quixotic Attempt? The Ninth Circuit, the BIA, and the Search for a Human Rights Framework to Asylum Law_, 73 Wash. L. Rev. 105 (January 1998). Hughes, Heather Lauren, _Same-Sex Marriage and Simulacra: Exploring Conceptions of Equality_, 33 Harv. Civ. Rts. - Civ. Lib. L. Rev. 237 (Winter 1998). Johnson, Voris E., _Making Words on a Page Become Everyday Life: A Strategy to Help Gay Men and Lesbians Achieve Full Equality Under South Africa's Constitution_, 11 Emory Int'l L. Rev. 583 (Fall 1997). Kaplan, Rebecca Dawn, _Cyber-Smut: Regulating Obscenity on the Internet_, 9 Stanford L. & Pol. Rev. 189 (Winter 1998). Keefer, Timothy Joseph, _DOMA as a Defensible Exercise of Congressional Power Under the Full-Faith-and-Credit Clause_, 54 Wash. & Lee L. Rev. 1635 (Fall 1997). Lu, Julie S., Rowinsky v. Bryan Independent School District_: Does Title IX Impose Liability on Schools for Student-to-Student Sexual Harassment?_, 42 Villanova L. Rev. 969 (1997). Recent Cases, _Constitutional Law -- First Amendment and Equal Protection -- Ninth Circuit Upholds "Don't Ask, Don't Tell" Policy for Gays and Lesbians in the Military. --_ Holmes v. California Army National Guard_, 124 F.3d 1126 (9th Cir. 1997)_, 111 Harv. L. Rev. 1371 (March 1998). Schaen, Richard, _Challenging "Don't Ask, Don't Tell": The Future of Military Recruitment on Public Law School Campuses_, 65 U. Cin. L. Rev. 1359 (Summer 1997). Taylor, Corey, _Same-Sex Sexual Harassment in the Workplace Under Title VII: The Legal Dilemma and the Tenth Circuit Solution_, 46 U. Kan. L. Rev. 305 (January 1998). Willett, Germaine Winnick, _Equality Under the Law or Annihilation of Marriage and Morals? The Same-Sex Marriage Debate_, 73 Indiana L.J. 355 (Winter 1997). _Specially Noted:_ A new law school casebook, _Employee Benefits Law_, by Maria O'Brien Hylton and Lorraine A. Schmall (West, 1998), devotes a substantial portion of its last chapter, titled "New Frontiers," to a detailed discussion of domestic partnership benefits. Unfortunately, it is the very last section of the very last chapter of the book. How many courses will get that far? Vol. 13, Pt. 4 of the _New York Law School Journal of Human Rights_ (1997) reprints the fact pattern, bench brief, and best brief prize-winners from the 1997 New York Law School Froessel Moot Court Competition. The subject matter of the competition was same-sex marriage and physician-assisted suicide. U.S. Supreme Court Justice Antonin Scalia presided at the final arguments. _Symposia:_ Symposium: Romer v. Evans, 6 William & Mary Bill of Rts. J. No. 1 (Winter 1997) (individual articles noted above). * * * Mini- Symposium on _Homosexual Law Reform_, 16 Univ. of Tasmania L. Rev. No. 1 (1997). * * * Mini-Symposium on _Physician-Assisted Suicide: Rights and Risks to Vulnerable Communities_, 25 Fordham Urb. L. J. (1997-98). AIDS & RELATED LEGAL ISSUES: Chavkin, Wendy, Deborah Elman, and Paul H. Wise, _Mandatory Testing of Pregnant Women and Newborns: HIV, Drug Use, and Welfare Policy_, 25 Fordham Urban L.J. 749 (1997-98)(symposium on HIV testing of women and newborns). Cooper, Elizabeth B., _Introduction_, 25 Fordham Urban L.J. 719 (1997-98) (Introduction to symposium on HIV testing of women and newborns). Crawford, Colin, _Changing Positions and Entrenched Polemics: A Brief History of the Association to Benefit Children's Views on Pediatric HIV Testing, Counseling, and Care_, 25 Fordham Urban L.J. 729 (1997-98)(symposium on HIV testing of women and newborns). Flannery, Michael T., and Raymond C. O'Brien, _Mandatory HIV Testing of Professional Boxers: An Unconstitutional Effort to Regulate a Sport That Needs to Be Regulated_, 31 U.C. Davis L. Rev. 409 (Winter 1998). Mayersohn, Assemblywoman Nettie, _The "Baby AIDS" Bill, 25 Fordham Urban L.J. 721 (1997-98)(symposium on HIV testing of women and newborns). Post, Linda Farber, _Bioethical Consideration of Maternal-Fetal Issues_, 25 Fordham Urban L.J. 757 (1997-98)(symposium on HIV testing of women and newborns). Schroedel, Jean Reith, and Daniel R. Jordan, _Senate Voting and Social Construction of Target Populations: A Study of AIDS Policy Making, 1987-1992_, 23 J. Health Politics, Policy & L. 107 (February 1998). _Student Notes & Comments:_ Decker, Amy M., _Criminalizing the Intentional or Reckless Exposure to HIV: A Wake-Up Call to Kansas_, 46 U. Kan. L. Rev. 333 (January 1998). Deeley, Elizabeth L., _Viatical Settlements Are Not Securities: Is It Law or Sympathy?_, 66 Geo. Wash. L. Rev. 382 (January 1998). Heinemann, Richard A., _Pushing the Limits of Informed Consent:_ Johnson v. Kokemoor_ and Physician-Specific Disclosure_, 1997 Wis. L. Rev. 1079. Rosse, Daria, Doe v. Southeastern Pennsylvania Transportation Authority _(SEPTA): The Politics of Disclosure_, 6 J. Pharmacy & L. 133 (1997). Sinton, Jennifer, _Rights Discourse and Mandatory HIV Testing of Pregnant Women and Newborns_, 6 J. L. & Policy 187 (1997). _Symposia:_ _Mandatory Testing of Pregnant Women and Newborns: HIV, Drug Use, and Welfare Policy_, 25 Fordham Urban L.J. 719-776 (1997-98)(mini- symposium, separate articles noted above). EDITOR'S NOTE: All points of view expressed in _Lesbian/Gay Law Notes_ are those of identified writers, and are not official positions of the Lesbian & Gay Law Association of Greater New York or the LeGaL Foundation, Inc. All comments in _Publications Noted_ are attributable to the Editor. Correspondence pertinent to issues covered in _Lesbian/Gay Law Notes_ is welcome and will be published subject to editing. Please address correspondence to the Editor or send via e-mail.