LESBIAN/GAY LAW NOTES
ISSN 8755-9021 June 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; Steven Kolodny, Esq., New York
City; Todd V. Lamb, Esq., New York City; Mark Major, Esq., Long
Island, New York; Sharon McGowan, Harvard Law Student, Cambridge,
Massachusetts; 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; Leo Wong, New York Law School
Student.

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

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(C) 1998 by the LeGaL Foundation of the Lesbian & Gay Law
Association of Greater New York    
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U.S. COURT ORDERS REINSTATEMENT OF GAY TEACHER

In a decision not yet officially reported, U.S. District Judge
Susan J. Dlott of the Southern District of Ohio ruled on May 18
that the Williamsburg, Ohio, Board of Education unconstitutionally
discriminated against Bruce N. Glover, a gay elementary school
teacher, when it voted not to renew his contract for the 1996-97
school year.  _Glover v. Williamsburg Local School District Board
of Education_, No. C-1-96-896 (UPI Press Report, May 19, 1998).  As
gay teachers have been notably unsuccessful in winning employment
discrimination claims, the ruling takes on special significance as
one of the few of its kind, and is particularly noteworthy as
coming from a district court in a circuit that has a bad history on
this issue.  See, e.g., _Rowland v. Mad River Local District_, 730
F.2d 444 (6th Cir. 1984), cert. denied, 470 U.S. 1009, rehearing
denied, 471 U.S. 1062 (1985).

Glover, who had previously worked as an insurance agent, went back
to school to get an education degree and had several substitute
teacher jobs, including some in the Williamsburg School District,
before being hired for a full-time position for the 1995-96 school
year.  At the time of his hiring, district officials knew that he
was gay, although there was testimony at trial that some of the
school board members who voted on his initial appointment may not
have known that he was gay.  

Glover received above-average evaluations from his building
principal for his first semester as a 6th grade English and Social
Studies teacher, with the exception of the category "conformity
with professional standards."  The principal gave Glover an
evaluation of "poor" for that category based on a rumor that had
been conveyed to the principal by the school superintendent (based
on a phone call from an undisclosed source) that Glover's African-
American domestic partner, who together with some other adults had
been invited to the school for a Christmas party for the sixth
grade class, had been seen holding hands with Glover during the
party.  Contrary to the district's established written policy, the
principal did not question Glover about this report, but assumed it
to be true and based his evaluation on it.  (Similarly, the school
superintendent told the school board about this "incident" in
executive session, assuming it to be true.)   

When the principal met with Glover in January 1996 to review his
first semester evaluation, Glover questioned the "poor" rating and
heard for the first time that somebody had called the school to
report about Glover holding hands with his partner in the presence
of students at a school function.  Glover disputed the report, and
further investigation by the principal showed it to be untrue.  The
principal then changed the evaluation for that category to "above
average," but the superintendent did not report this correction to
the school board.  In a meeting between Glover, the principal, and
the superintendent, both administrators warned Glover that there
were people in the community who were "out to get him," and he
should be careful not to cause any concern.  In particular, they
told him that his partner should not come to the school, even
though it was customary for teachers to invite other adults to
attend social events at the school.

This incident (and particularly the school superintendent's
agitation over the phone call) seems to have affected the
principal's ability to be objective in rating Glover.  During the
second semester, he evaluated Glover as below-average in most
categories.  However, he recommended that both Glover and
Whitehead, a female first year teacher with worse evaluations than
Glover, be renewed for the next year.  The school board rejected
both recommendations, voting not to renew either teacher.  During
an appeal process, Glover addressed the board in open session,
claiming that he was being discriminated against based on sexual
orientation and that the principal had not been adequately helpful
in assisting him in improving his ability to control student
behavior in the classroom.  (This later point was the ostensible
reason for his non-renewal.)

The other teacher also appealed.  The board voted to reverse its
decision and hire her, but to stick with its decision on Glover,
based on his purported problems in managing student behavior. 
Ironically, the other teacher had been rated even lower than Glover
in this category.  One wonders where the school board's legal
counsel was during all of this?

Glover sued in federal court, claiming discrimination on the basis
of sexual orientation, sex, and race (i.e., the race of his
domestic partner) and a first amendment violation premised on
retaliation for his statements at the board hearing, and also
asserting supplementary claims of sex and race discrimination under
the Ohio Human Rights Law.  The School Board defended on the basis
that they had dismissed him for inadequate student management
skills and that, in any event, sexual orientation discrimination
claims are not actionable under the equal protection clause.

After a trial at which all the principal players testified, Judge
Dlott concluded that the Board's reason for refusing to renew
Glover's contract was pretextual.  Applying the method of analysis
normally used in employment discrimination cases under the federal
civil rights act, she found that Glover was a member of a protected
class who had stated a prima facie case of discrimination, that the
board met its intermediate burden of articulating a legitimate
grounds for his dismissal, but that he had proved by a
preponderance of the evidence that his sexual orientation, not his
student management skills, were the reason for the discharge.  In
reaching this conclusion, Dlott specifically emphasized the
comparison to Whitehead, the heterosexual teacher who was renewed,
as well as the conflicting and contradictory testimony of various
members of the school board, who never really seemed to get their
story together.  

As to the board's claim that sexual orientation discrimination is
not actionable, for which the board cited _Bowers v. Hardwick_, the
Supreme Court's 1986 sodomy decision, Judge Dlott pointed out that
_Hardwick_ did not involve an equal protection claim, and citing
_Romer v. Evans_ and _Stemler v. City of Florence_, 126 F.3d 856
(6th Cir. 1997), held that Glover's equal protection claim for
sexual orientation discrimination would be evaluated under the
rationality standard of review.  As to this, Dlott found that the
board had failed to articulate any reason why a gay person,
particularly one with above-average ratings as a teacher, should be
denied a renewal contract.  Having found the board's only
articulated reason pretextual, Dlott concluded that "the Board was
motivated by animus toward Glover as a homosexual, [so] Glover
necessarily prevails under a rational basis review of the Board's
decision."

However, Dlott found that there was inadequate evidence to support
Glover's sex and race discrimination claims, and, in a closer call,
that there was inadequate evidence to conclude that Glover's
statements protected by the first amendment at the board's open
meeting were a motivating factor in the board's non-renewal
decision.

In addition to ordering that Glover be offered a teaching contract
for the 1998-99 and 1999-2000 school years, Dlott awarded back-pay
for the past two school years and compensatory damages for
emotional distress, totaling $71,492.00, plus attorneys fees and
costs of his legal action.  Glover is represented by Cincinnati
attorney Alphonse A. Gerhardstein, who is also co-counsel in the
continuing litigation over Cincinnati's Issue 3, the anti-gay
ballot initiative (see below re certiorari filing). (We thank Mr.
Gerhardstein for promptly sending us a copy of the opinion.) 
A.S.L.

LESBIAN/GAY LEGAL NEWS   

South African Court Strikes Down Sodomy Law

Judge Jonathan Heher of the Witwatersrand (Johannesburg) Division
of the High Court of South Africa issued an opinion on May 8
declaring unconstitutional that nation's laws against consensual
sodomy between males.  _National Coalition for Gay & Lesbian
Equality v. Minister of Justice_, Case No. 97/023677.  As the
government provided no defense for the laws, there will be no
appeal to the Supreme Court, and it is expected both that the
Constitutional Court will routinely approve the portions of the
opinion affecting statutes and that the full bench of the High
Court will ratify Judge Heher's decision in due course.

The ruling came upon applications from the National Coalition for
Gay and Lesbian Equality and the South African Human Rights
Commission, both seeking a judicial declaration that the new South
African Constitution was violated by the laws.  That Constitution
includes concepts of due process, privacy, and equal protection of
the laws that go beyond the U.S. Constitution, by specifying sexual
orientation as a prohibited ground for discrimination by the
government.

In common with other British Commonwealth nations, South African
sex crimes laws have specifically focused on sex between males, and
have not directly addressed lesbian sex.  The laws attacked in this
case include the common law crimes of sodomy, defined as anal sex
between men, and unnatural sexual acts, which have been interpreted
to include mutual masturbation, achieving orgasm by rubbing the
penis between the thighs of the other party, and oral sex between
men.  By contrast, oral or anal sex involving women has been legal
in South Africa.  

In addition, the lawsuit attacked section 20A of the Sexual
Offences Act of 1957, which outlaws sexual acts committed by men in
any setting where more than two people were present, as well as a
provision of the Security Officers Act that disqualifies anybody
convicted of sodomy from being a security officer.  The lawsuit
also attacked the inclusion of sodomy under various provisions of
the Criminal Procedure Act of 1977, which virtually imposed the
disqualifications of the old racial apartheid system on anyone
convicted of sodomy. 

Judge Heher's decision premised the declaration of
unconstitutionality on the provision banning sexual orientation
discrimination.  He found that outlawing anal intercourse
discriminates against gay men on two counts: "First, anal
intercourse is the homosexual man's form of sexual expression,
equivalent to heterosexual intercourse per vaginum.  The crime
forbids the satisfaction of that basic need, at peril of freedom
and reputation, and deprives a person of that sexual orientation of
physical, emotional and psychological outlets while his
heterosexual compeers face no such obstacle.  Second, anal
intercourse between men and women is not penalised by law, while
between males it is a criminal offense, which in the nature of
things strikes only at homosexuals."

After reviewing the arguments in support of sodomy laws, including
those made by the U.S. Supreme Court's 1986 decision in _Bowers v.
Hardwick_, Heher concluded that they were insubstantial in light of
the fundamental discrimination at issue.  "Although the suppression
of sodomy may in times past have been regarded as a necessary prop
of morality both public and private, that is today too tenuous a
thread upon which to support its continued criminalisation," he
wrote, concluding that he could not think of any "reasoned basis"
for forbidding gay men to do what heterosexual couples were free to
do.

Heher began his analysis by discussing a 1993 law review article by
then-Professor Edwin Cameron, an openly-gay South African legal
scholar who is now a judge on the same High Court on which Judge
Heher sits.  After quoting Cameron's arguments against the sodomy
law, Heher wrote: "Constitutionally we have reached a stage of
maturity in which recognition of the dignity and innate worth of
every member of society is not a matter of reluctant concession but
is one of easy acceptance.  Nor is that perception inimical to
views held by a large percentage of the population, as witness the
liberalisation of attitudes in the media, the open acceptance of
persons of divergent sexual orientation into positions of
responsibility in society and the public recognition of what has
always been the de facto reality that, by reason of their
particular emotional and intellectual make-up, many homosexuals
contribute vastly to the greater well-being of mankind."

With these remarks, Heher paid an oblique tribute to Judge Cameron
and the National Coalition, in a decision that marks the
vindication of decades of effort toward ending South Africa's
status as one of the last of the major industrial nations to
criminalize consensual sodomy.  Attorney Gilbert Marcus argued the
case for the coalition. 

This decision leaves the United States in the anomalous position of
being virtually the last major Western democracy where a
substantial part of the country maintains criminal bans on
consensual gay sex.  A.S.L.

Clinton Issues Executive Order Banning Sexual Orientation
Discrimination in the Executive Branch

In a much-delayed follow-up on a promise from the 1992 election
campaign, U.S. President Bill Clinton signed an Executive Order on
May 28, formally amending Executive Order 11478 (Equal Employment
Opportunity in the Federal Government), to add "sexual orientation"
to the characteristics covered by the federal government's equal
opportunity policy.  This action was largely symbolic, since most
of the departments, agencies and bureaus of the Executive Branch
had adopted their own non-discrimination policies several years ago
in response to a Clinton directive to the heads of all agencies
urging such a course of action.  The policy applies only to
civilian employment, and thus does not affect the policy of
excluding openly lesbian and gay people from uniformed military
service as agreed by Congress and Clinton in 1993.

Furthermore, although victims of discrimination may seek redress
through informal administrative procedures within their agencies,
the executive order does not create any rights enforceable in the
federal courts, because the president does not have any legislative
authority.  Acknowledging this basic limitation on his handiwork,
Clinton accompanied the order with a renewed call to Congress to
pass the Employment Non-Discrimination Act (ENDA), a pending bill
that would ban disparate treatment on the basis of sexual
orientation in public and private employment to the extent of
Congress's power under the Commerce Clause.  This call was nothing
new, either, as Clinton has endorsed the bill several times in the
past, and little likelihood is given for its passage so long as
control of Congress lies in Republican hands.  

In an unusual high point of support, 49 Senators voted for ENDA
shortly before the 1996 elections, as part of a deal under which
the Defense of Marriage Act (DOMA), which bans federal recognition
of same-sex marriages and purports to excuse the states from any
obligation they have to recognize such marriages when contracted in
other states, was brought to the floor under a rule precluding
floor amendments.  Under the circumstances, Senators had an
opportunity to demonstrate that their support for DOMA was not
intended as "gay-bashing" while secure in the knowledge that ENDA
would not be enacted because it hadn't a prayer of even coming to
the floor in the House of Representatives.  These unusual
circumstances are unlikely to recur soon.  A.S.L.

1st Circuit Upholds Retaliation Claim by Gay Employee Under Title
VII

A unanimous panel of the U.S. Court of Appeals for the 1st Circuit
upheld a jury verdict in favor of Richard Provencher, a gay man who
claimed that he suffered unlawful retaliation under Title VII after
having filed a sexual harassment claim against his employer. 
_Provencher v. CVS Pharmacy_, 1998 WL 254432 (May 26).

Provencher was employed by CVS beginning in 1988.  From late 1989
until April 1992, he worked as an assistant store manager for
Deborah Banaian, until he was promoted to be a store manager and
transferred to another location.  When CVS fired him in May 1995,
he was employed as their store manager in Manchester, New
Hampshire.  Provencher claimed that he was sexually harassed by
Banaian because he was gay, and fired by CVS because he pursued a
harassment claim against Banaian.  Provencher claimed that Randy
Ellis, his supervisor in 1989, directed Banaian to harass him
because he was gay and Ellis hoped this would force him to quit,
but instead Provencher reported the harassment to company officials
and, when they took no action, to the New Hampshire Commission for
Human Rights.  At around that time (in 1995), Provencher served
jury duty and was terminated by CVS based on an allegation that he
had falsified payroll records by claiming pay for his full workweek
during his jury duty period, even though his actual time spent on
duty was significantly fewer hours.  Provencher claimed that this
was pretextual, and his discharge was retaliatory.  The jury agreed
with Provencher.

In an interesting sidelight to the case, Banaian, who was also
named as a defendant, cross-claimed against Provencher for false
imprisonment and intentional infliction of emotional distress,
based on an incident when she showed up at his new store and he had
police officers escort her from the premises, telling them that she
was forbidden to enter his store.  (This incident followed on
several incidents where Banaian came to the store and spent long
periods of time staring at Provencher, who evidently finally lost
patience with her.)

The main dispute on appeal was over District Judge Joseph
Diclerico's instructions to the jury on how to deal with a mixed
motive retaliation case under Title VII.  CVS argued that the
instructions could have misled the jury to believe that they could
find for Provencher even though his payroll falsification would
merit discharge, so long as his protected activity in pursuing his
sexual harassment claim "played a part" or was "a motivating
factor" in the discharge.  Writing for the court, Senior Circuit
Judge Coffin found that some of the language in the jury charge
might have been confusing, but that Judge Diclerico's instruction
that the jury determine whether Provencher's protected activity was
the "true" or "real" reason for the discharge made it unlikely that
the jury was misled as to Provencher's ultimate burden of proof.  

CVS also disputed the jury's award of $8,000 in punitive damages,
arguing that punitive damages should only be available in a jury
trial when the jury also awards compensatory damages.  In this
case, the jury had only awarded punitive damages, and the judge had
added a compensatory damage award totalling over $150,000.  Coffin
found that the district court's award to Provencher of back pay and
front pay was based on the injury he had suffered from retaliatory
discharge, and that the failure of the jury to award those damages
would not stand in the way of the jury's award of punitive damages.

As to Banaian's counterclaims, the court of appeals held that the
district court had appropriately dismissed them based on Banaian's
allegations, which did not state a case under either theory because
she was never actually restrained by the police officers, but
merely asked to leave (which she did, promptly), and that there was
no other valid tort claim on which to premise a claim for emotional
distress damages under the circumstances.  

At trial, Provencher's hostile environment sexual harassment claim
had been dismissed by the court on statute of limitations grounds. 
The court of appeals agreed with this disposition, finding that
Provencher's claim accrued upon the first incident of actionable
harassment.  The court rejected his argument that he should be able
to bootstrap backwards in time to pick up incidents that had
occurred prior to March 18, 1994, the relevant date for limitations
purposes.  Virtually all of the harassing conduct had occurred
prior to that date.  In this case, because Provencher was
challenging particular acts of harassment rather than a continuing
company policy of harassment, the court rejected any "continuing
violation" theory for this case. 

Provencher is represented by attorney Andru H. Volinsky.  A.S.L.

10th Circuit Rules Evidence of Victim's Homosexuality Properly
Excluded From Murder Trial

A unanimous panel of the U.S. Court of Appeals for the 10th Circuit
ruled May 22 that a trial court had correctly excluded evidence
that the victim of a murder was gay and had made sexual advances
toward a friend of the defendant.  _U.S. v. Bautista_, 1998 WL
261406.  The court affirmed Michael Bautista's conviction for
second-degree murder of David Carrillo on an Indian reservation in
New Mexico.

Carrillo's body was discovered on April 4, 1996, in his apartment
at the Laguna Rainbow Elderly Care Center on a Pueblo reservation. 
There were numerous blunt force wounds on his head and 48 puncture
wounds to his back, abdomen, and neck.  Various pieces of evidence
led the local police to Bautista, who ultimately confessed but
claimed he was fending off an aggressive sexual advance.  According
to Bautista, he had been drinking with Carrillo and both men were
at least moderately drunk when Carrillo came on to him sexually;
when Bautista demurred, Carrillo reached for an ice pick, but
Bautista beat him to the punch.  Bautista also claimed that when he
and a friend left Carrillo's apartment, Carrillo was unconscious
but they didn't think he was dead.

At trial, Bautista sought to introduce testimony from a friend who
claimed to have been the subject of unwanted sexual advances by
Carrillo, as well as the friend's girlfriend, who would testify
that the friend had told her about Carrillo's advances
contemporaneously to that incident.  Bautista's theory of
admissibility was that this testimony tended to confirm his story
that he did not intend to kill Carrillo, but was merely fending off
aggressive sexual advances.  The trial court excluded both
witnesses.

Wrote Senior Circuit Judge Barrett, "We agree with the district
court that testimony of Carrillo's homosexuality was irrelevant and
potentially highly prejudicial.  We fail to discern how the
victim's sexual orientation is relevant to the charge of second-
degree murder or to a defense of `heat of passion.'  In contrast,
however, evidence of the victim's aggressive character may be
admissible, whether homosexually or heterosexually motivated, to
establish that the victim was the aggressor. . .  Bautista could
have introduced evidence of Carrillo's reputation for
aggressiveness, but he could not introduce specific instances of
aggressive conduct. . .  The district court properly noted that
Bautista had the opportunity to testify that he feared Carrillo's
aggressive homosexual advances and that he had killed Carrillo in
the heat of passion upon adequate provocation.  In fact, in his
confession, which he relied upon, that is the theory the jury
heard."  But, as the verdict showed, the jury rejected this
defense.

The bulk of the opinion is devoted to rejecting Bautista's claim
that his confession should have been excluded on a theory that it
was derived from a prior interrogation that raised issues under the
_Miranda_ rules.  A.S.L.

Texas Supreme Court Reverses Decision Affecting Co-Parent Standing

In a per curiam opinion issued on May 8, the Texas Supreme Court
reversed a decision by the court of appeals that had accorded
standing to a lesbian co-parent seeking to assert visitation rights
to the child she had been raising with her partner prior to the
break-up of their relationship.  _Jones v. Fowler_, 41 Tex. Sup.
Ct. J. 808, 1998 WL 226895. 

Tonia Jones and Lisa Fowler conceived a child through donor
insemination in 1991, when they had been partners for about 5
years.  Jones was the biological mother of the child, who was born
in 1992.  In 1994, the women's relationship ended, but Jones
allowed continued contact with the child by Fowler for another
year.  Then Jones cut off further contact and Fowler filed suit. 
The trial court ruled that Fowler did not have standing to seek
visitation, but the state court of appeals reversed.

The case turns on section 102.003(9) of the Texas Family Code,
which grants standing to bring a "suit affecting the parent-child
relationship" to a person who has had actual care, control, and
possession of a child for at least six months preceding the filing
of the lawsuit.  Prior to recodification, the provision had
conferred such standing only on someone whose care, control, and
possession occurred during the six months "immediately preceding"
the filing of suit.  The 1995 recodification of the Family Code
removed the word "immediately."

In its decision, reported at 949 S.W.2d 442 (Tex. App., 3rd Dist.
July 3, 1997), the court of appeals held that the removal of the
word "immediately" should be considered a substantive change to the
statute, and so Fowler would have standing to bring suit because
she had actual care, control, and possession of the child for a
period of at least six months at some time prior to having filed
suit.  In reversing this decision, the Texas Supreme Court asserted
that the legislative history of the recodification showed that the
legislators did not intend to change the substantive requirements
of sec. 102.003(9) when they removed the word "immediately."  The
court also quoted from a dictionary definition of "preceding" which
suggested that the concept of "immediately" was part of the
definition of preceding.

In neither the court of appeals nor the supreme court opinions was
anything made of the fact that the case involves a same-sex couple. 
There is no mention of the Texas sodomy law, and apart from the
names of the parties, no indication that the case has anything to
do with the sexual orientation or sex of the parties.  A.S.L.

Virginia Appeals Court Rules Against Mother on Primary Custody
Appeal

Affirming a trial court order, the Court of Appeals of Virginia
ruled May 26 against Donna M. Piatt, who is in a relationship with
another woman, in her effort to obtain primary physical custody of
her child.  _Piatt v. Piatt_, 1998 WL 260019.  Although the
majority opinion by Chief Judge Fitzpatrick claims to have applied
a non-discriminatory standard in evaluating the relative merits of
john, the father, and Donna, the mother as primary physical
custodian, a detailed dissent by Judge Annunziata showed that in
fact a double-standard had been applied by the court to the
disadvantage of the mother.

The parties married in 1989, and their child was born in 1993. 
Both parents worked, and child care was provided by several friends
and relatives.  They separated in December 1994 and entered into an
agreement where they cared for the child on alternate weekdays and
weekends.  After Donna moved out of the family residence in June
1996, the child spent alternate weeks with each parent, an
arrangement that both parents found unsatisfactory.  Their
settlement agreement provided that Dr. Christopher D. Lane perform
a custody evaluation.  Lane recommended that Donna have primary
physical custody, opining that she had "demonstrably broader"
parenting skills.  At the time of trial, John had been dating a
woman for several months who he planned to marry.  At that point,
Donna had been in a relationship with a woman for slightly longer
than John's relationship with his fiance, but this was Donna's
second relationship with a woman.  In the cases of both John and
Donna, their new relationships began after their formal separation
from each other.  Donna testified that she was uncertain about her
sexual orientation and was "experimenting."

The trial judge, Circuit Judge William G. Plummer, awarded joint
custody, with primary physical custody for John and generous and
unrestricted visitation for Donna (who was not living with her
current girlfriend).  In the eyes of Plummer, Donna was
"promiscuous" for having had two relationships, while John was more
"settled" for having just one where marriage was projected.  On
this basis, Judge Plummer, who characterized Donna's period of
"experimentation" as "turmoil," found John's household to be more
stable and thus better as the primary residence of the child.

Writing for the court, Chief Judge Fitzgerald rejected Donna's
contention that Plummer was biased against her because of her
sexual conduct since the separation, asserting that the trial
judge's evaluation of the parties had been even-handed and that the
he was not bound to follow the expert's recommendation.  Dissenting
Judge Annunziata sharply disagreed, highlighting the double-
standard of treating Donna's two serially monogamous relationships
as "promiscuous" while considering John's relationship as "stable." 
Judge Plummer had made much of the fact that Donna was engaging in
these relationships while still married to John, but, as the
dissent observed, John was also still married to Donna while
engaged in his own sexual relationship with his new girlfriend. 
"No evidence proved that either party had any extramarital
relationship prior to their separation," wrote Annunziata. "Thus,
the court's distinction between the parties on this basis has no
foundation in the evidence."

Further, Annunziata observed that Virginia cases require a showing
that a parent's sexual conduct have had some impact on the child in
order for it to be relevant to a custody determination.  In this
case, there was no evidence that Donna's relationships had any
impact on the child, a four-year-old as to whom there was no
evidence that the child knew or was even aware of her mother's
sexual activities.  "While the evidence showed that the wife was
`struggling' with her sexual identity, no evidence proved that the
wife's `struggle' affected her ability to parent the child. 
Indeed, the evidence is to the contrary," argued Annunziato, citing
Dr. Lane's conclusion that Donna would be the preferable custodial
parent.

Donna is represented by Cheryl K. Bruner of Manassas, Virginia,
with amicus assistance from the National Center for Lesbian Rights.
A.S.L.

Tennessee Appeals Court Orders New Trial in Rough Sex Death Case

The Tennessee Court of Criminal Appeals ruled on May 22 that the
trial of James Clayton Young, Jr., for the death of Joey Ladd
during the course of "rough sex," had so many erroneous rulings by
the trial court that a new trial will be necessary.  _State v.
Young_, 1998 WL 258466.  

Young, who was 34 at the time of the incident, and Ladd, who was a
19-year-old college student, both worked at a restaurant in
Murfreesboro.  Young did not testify in his own defense, but a
confession was admitted in evidence.  According to his confession,
Young and some other co-workers were concerned that Ladd was
drinking too much, and they took him to Young's apartment for a
social evening that was supposed to include some counseling. 
Eventually everybody left except Young and Ladd, who were both
drinking rather heavily by then.  Young confessed to Ladd that he
had homosexual leanings and Ladd responded in kind.  The two men
engaged in sex, including anal sex in which Ladd penetrated Young
but Young had difficulty maintaining an erection and Ladd passed
out.  Young states that Ladd revived, and Young then told Ladd that
he had fantasies about bondage sex that he had always wanted to
work out and that might restore his erection.  Ladd consented to
being handcuffed and gagged; then Young sat on his back and
attempted to penetrate him, but still had trouble maintaining an
erection.  Young then took a t-shirt, which he wrapped around
Ladd's neck, and began "riding" his back pulling on the towel like
reins on a horse.  Ladd began to struggle, but Young was so caught
up in his drunken fantasy that he continued to "ride" until Ladd
went limp.  

When Young could not detect a pulse, he panicked, removed Ladd's
body from his apartment to a dumpster, and the next day transported
the body to a remote field where he set it in a ditch, covering it
with a sleeping bag.  The body was discovered several days later by
a construction worker, and a police investigation quickly led to
Young, who first denied knowing anything about the body, but
ultimately confessed to the events as above.

Young was charged with three counts: deliberate and premeditated
murder, felony murder in the perpetration of a rape or an attempted
rape, and unlawful disposal of a corpse.  The first count was
dismissed at trial, and the issue for the jury ultimately came down
to deciding between felony murder (i.e. causing the death of Ladd
while raping or attempting to rape him) or lesser homicide offenses
of second degree murder, voluntary manslaughter, reckless homicide,
and criminally negligent homicide.  The state's theory appeared to
be that the final act leading to Ladd's death was not consensual
because Ladd was either too drunk to consent or was unconscious
(asleep) after the prior sex acts when Young commenced the rough
bondage sex.  Young's story, as above, was that this was really an
accidental death for which he accepted responsibility but in no way
a felony murder.  After the case went to the jury, Young offered to
plead guilty to second degree murder, but the judge rejected his
offer.  The jury convicted of felony murder, and the trial court
imposed a life sentence.

In an extraordinarily lengthy and detailed opinion, Judge Wade
scrutinized numerous objections to evidentiary rulings by the trial
judge, J.S. Daniel of the Rutherford County Court.  Characterizing
this as a difficult case and disclaiming any criticism of the trial
judge for bias, Wade concluded that while none of the individual
contested rulings would by themselves justify reversing the
verdict, taken cumulatively it was possible that the jury had been
inappropriately swayed against the defendant.  Of particular
concern was the way in which Young's confession was presented.  It
was not a seamless statement, but rather a lengthy tape recording
of an interrogation by two police detectives, containing lengthy
statements by the detectives, which Wade found should have been
heavily redacted to avoid planting in the jury's minds the
detectives' conclusory statements about what happened.  In
addition, the medical examiner was allowed to testify as to rather
speculative views of what might have happened at various points,
and irrelevant but prejudicial testimony about the defendant's
sexuality and lifestyle were also allowed in evidence.  One judge
concurred in the result but dissented from the discussion about
redaction, contending that proper jury instructions could take care
of that problem.  A.S.L.

Federal Claims Court Punts Military/ROTC Scholarship Case

The U.S. Court of Federal Claims dismissed a case alleging that the
Army improperly discharged a gay man from the Reserves and sought
repayment of his ROTC scholarships for lack of jurisdiction. 
_Talbot v. United States_, 1998 WL 209258 (April 27). 

Plaintiff John Talbot joined ROTC in 1988.  He quickly withdrew,
but in 1990 the Army ordered him to begin Reserve service.  Talbot
petitioned for immediate honorable discharge "because of
homosexuality," and reported for service.  The Army discharged him,
ordering him to repay $13,000 in scholarship money.  In 1996,
Talbot challenged the Army's anti-gay policy in the Claims Court,
seeking (1) an order voiding the discharge, (2) back pay for three
years "constructive service," (3) a declaratory judgment that he
need not repay any scholarship money, and (4) attorney's fees and
costs.  The Army counterclaimed for the $13,000 plus interest and
penalties.

Judge Margolis dismissed for lack of jurisdiction.  The Tucker Act
serves as the general Congressional consent to suit in the Claims
Court, but it does not provide jurisdiction for a termination claim
if the termination was voluntary.  Citing several precedents from
other contexts, Margolis opined that Talbot had left voluntarily by
requesting a discharge at the earliest possible time, rather than
awaiting a possible discharge later.  Margolis dismissed the Army's
counterclaim together with the complaint, but awarded costs to the
Army.  _Otis R. Damslet_

Indiana Supreme Court Rejects Murder Appeal Involving Gay Sex

The Indiana Supreme Court rejected a defendant's contention that
his consensual homosexual activity could supply the "sudden heat"
required to reduce his murder conviction to voluntary manslaughter. 
_Grant v. State of Indiana_, 1998 WL 214322 (Apr. 30).  On a June
evening in 1994, Telly Grant drank alcohol and watched gay
pornographic videos in an apartment with five other men.  Grant had
sexual relations with at least one of the men before the videos,
and may have done so after as well. In the course of the evening
Grant apparently had a dispute with Anthony Alexander, and on
leaving the apartment told the two men who left with him that he
wanted to "jump" Alexander. Grant and one of the men then gained
re-entry to the apartment where Grant was seen to attack and stab
Alexander. 

The jury convicted Grant of murdering Alexander and of attempting
to murder another of the men present. Grant unsuccessfully appealed
his conviction on four claims of error, including one based on the
trial court's refusal of his tendered instruction on the
lesser-included offense of voluntary manslaughter.  Grant contended
that he is heterosexual and that his participation in homosexual
activity was unusual conduct for him; and that the "sudden heat"
prerequisite for his manslaughter instruction was established by
evidence that he acted out of anger toward the "source of his
humiliation and anger" resulting from his homosexual activity. 

Judge Dickson "decline[d] to permit the defendant's own consensual
actions to constitute sufficient provocation."  The judge also
pointed to the fact that Grant engaged in his homosexual activity
over the course of several hours, in contradiction to his
contention of suddenness.  _Mark Major_

Gay Father's Permission Not Needed for Adoption of His Children

Dutchess County, N.Y., Family Court Judge James D. Pagones ruled in
_Matter of Adoption of Gabrielle and Nicholas_, NYLJ, 5/18/98, that
the stepfather of two young children could adopt them without
obtaining consent from the children's gay father, who had not seen
the children for about five years.

In a case that was apparently hotly contested at trial, the gay
father argued that his ex-wife had demanded that he refrain from
all contact with the children, because she did not want them to be
exposed to a "faggot."  The father and his "roommate" both
testified that he had made some attempts at contact, and had left
Christmas presents for them in 1996.  However, the father, who had
filed some actions seeking visitation but never followed up on
them, testified that he had assumed that he "had no chance" to win
the right to see his children because of his homosexuality. 
Apparently, the news that his ex-wife's new husband intended to
adopt the children had spurred him to seek better informed legal
counsel, and he was now trying to assert his rights.

The father's case was not helped by the fact that seven support-
related proceedings had been filed against him between 1991 and
1997 for failure to pay child support due under the divorce order.

Judge Pagones found that there were credibility problems in the
father's testimony, noting that the children's mother denied some
key points of his testimony and that there were pertinent
differences between his testimony and his "roommate"'s testimony
about the nature and frequency of his attempts to contact his
children.  Ultimately, the court found that the father had
effectively abandoned the children, and thus under N.Y. Dom. Rel.
Law sec. 111(2)(a), his consent would not be required for the
adoption because of his failure to assert his parental rights over
a period of many years.  A.S.L.

N.J. Court Rules Against Surviving Life Partner

In a heartbreaking case illustrating the perils of gay life
partners failing to execute appropriate documents concerning their
relationship, a New Jersey judge denied an attempt by a gay man to
stay in the house in which he had lived with his deceased life
partner for fifteen years.  _Matter of Estate of Carl Benkendorf_,
N.J. Superior Ct. Chancery Div., Passaic County (May 8, 1998).  The
surviving partner, Bruce Arzig, has appealed the ruling.

Arzig and Benkendorf began their relationship in the 1960s.  In
1980, after Benkendorf was injured and required full-time care,
Arzig gave up his job in New York and moved in with Benkendorf in
his Clifton, New Jersey, house, and was continuously in residence
there with Benkendorf from 1983 until Benkendorf died in 1994. 
Prior to Arzig moving in and caring for Benkendorf, Benkendorf had
made a will leaving his entire estate to family members.  During
the period from 1983 to 1994, Arzig was entirely dependent
financially on Benkendorf, and Benkendorf was entirely dependent
physically on Arzig, as Benkendorf's family members provided no
assistance in caring for the ailing man.  Benkendorf had promised
Arzig that Arzig could live in the house for the rest of Arzig's
life and would be provided for financially.  In furtherance of
these promises, Benkendorf executed a blank will form and also
endorsed various stock certificates "in blank" and turned them over
to Arzig, instructing him to "take care of himself." 
Unfortunately, Arzig took no further steps to do so while
Benkendorf was alive.

After Benkendorf died, Arzig continued to live in the house without
paying rent, and turned over the blank will and stock certificates
to Benkendorf's executor, relating the story of his promise and
assuming that the family was acquiescing in his continued
residence.  However, recently, the family placed the property on
the real estate market and informed Arzig he must vacate the
premises.  Arzig, who is elderly and has not had a regular job
since 1980,  filed suit against the estate, seeking enforcement of
Benkendorf's promises to him.

The trial judge, Amos. C. Saunders, dismissed the suit in a ruling
from the bench based on the doctrine of laches, finding that by
waiting for several years after Benkendorf's death before asserting
a legal claim, Arzig had disqualified himself from asserting any
such claim.  Saunders refused to stay his ruling pending appeal. 
Arzig's attorney, Richard I. Miller of the firm of Harold Leib &
Associates in Clifton, New Jersey, filed an appeal on May 19,
seeking a stay from the Appellate Division.  A.S.L.

N.Y. Judge: False Imputation of Homosexual Conduct Is Still Libel
Per Se

New York State Supreme Court Justice Lorraine S. Miller has ruled
that a false imputation of homosexual conduct remains libelous per
se in New York.  _Nacinovich v. Tullett & Tokoyo Forex, Inc._, N.Y.
Supreme Ct., N.Y. County (NYLJ, 5/22/98, p. 25, col.5). 
Consequently, the court refused to grant summary judgment for the
defendants on a defamation claim based on the circulation in the
plaintiff's workplace of cartoons depicting him engaging in
homosexual activity.  The court also refused to dismiss a same-sex
sexual harassment claim premised on the same and similar conduct.

Plaintiff Anthony Nacinovich was hired by the defendant in May 1990
to work as a foreign currency trader.  His problems at work
allegedly began in January 1993 when the defendant hired Kevin
Farrell, who began drawing caricatures of various employees and
circulating them in the office.  Farrell drew numerous caricatures
of Nacinovich, depicting him as engaging in homosexual activity,
cross-dressing, and declaring himself to be gay.  The circulation
of these drawings evidently led other employees to join in
directing derogatory comments at Nacinovich, including "Serbian
dope,", "stupid guinea," and "gay motherfucker," among others. 
Nacinovich complained on various occasions, but the defendant did
nothing to stop this conduct or the circulation of the caricatures. 
Even after Farrell left the company, another employee, Blades
Williamson, continued on occasion to circulate the offensive
drawings and direct abusive language at Nacinovich.  After
Nacinovich sent a complaint letter to the defendant's president, he
was reassigned to a position he considered less desirable at
substantially reduced pay.  

Nacinovich sued under the state and local human rights laws,
claiming hostile environment sexual harassment and discrimination
on the basis of national origin, as well as unlawful retaliation. 
He added tort claims of defamation, intentional infliction of
emotional distress, and negligent hiring, naming individual
defendants (including Williamson) as well as the corporation.

Noting the U.S. Supreme Court's recent decision in _Oncale v.
Sundowner Offshore Service, Inc._, 118 S.Ct. 998 (1998), as
persuasive authority, Justice Miller ruled that same-sex harassment
is actionable as sex discrimination under the state and local human
rights laws.  She did not go any further in analyzing whether the
plaintiff had adequately alleged that he was subjected to
harassment "because of sex," which is one of the specific
requirements the Supreme Court established in _Oncale_.  She did
find that Nacinovich had adequately alleged a claim for retaliation
under the human rights laws.

Turning to the tort claims, Justice Miller dismissed the negligent
hiring claim on the ground that the Workers Compensation Law
provides the exclusive remedy for any workplace injury due to
negligence.  She also dismissed the intentional infliction of
emotional distress claim, on the ground that such a claim in New
York may only be stated for injuries due to conduct that is not
otherwise tortious, and also on the ground that the conduct alleged
in the complaint was not sufficiently "outrageous" to meet the
requirements for the tort in New York.

Turning to the defamation claim, Miller noted that some courts had
accorded wide protection to cartoonists under defamation law, on
the ground that critical statements in cartoons are usually seen as
opinion, satirical commentary and the like, rather than factual
assertions.  However, Miller insisted that cartoons can be
defamatory.  She emphasized that "one of the drawings graphically
depicts plaintiff engaging in a sexual act with another male co-
worker and another depicts him naked and holding another man. 
Rightly or wrongly, the society in which we live still attaches a
stigma to a person who is labeled a homosexual (see, Matherson v.
Marchello, 100 AD2d 233 [2nd Dept. 1984]). Consequently, a
depiction which falsely imputes homosexual behavior constitutes
libel per se under our State law (see Dally v. Orange County
Publications, 117 AD2d 577 [2nd Dept. 1986]; Matherson, supra;
Mazart v. State of Ne York, 109 Misc.2d 1092 [Ct. of Claims
1981])."

Miller found that in this case the purpose of the cartoons was "to
injure plaintiff's reputation and expose him to ridicule and shame
among his co-workers," and could be presented to a jury without
alleging special damages under the defamation per se doctrine. 
A.S.L.

N.Y. Mayor Giuliani Proposed Wide-Ranging Domestic Partnership
Ordinance

N.Y. City Mayor Rudolph Giuliani, making good on a campaign
commitment to the Empire State Pride Agenda, a gay rights lobbying
group, announced on May 11 a combined legislative and
administrative initiative to establish equality of treatment
between unmarried domestic partners (both same-sex and opposite-
sex) and married couples under policies of the city of New York. 
The two-pronged initiative includes a bill, Intro 303, introduced
in the City Council under the sponsorship of Speaker Peter Vallone
(a candidate for the Democratic nomination for Governor this year),
and a series of amendments to various administrative policies and
regulations.  The City Council is expected to vote on Intro 303
this summer, with committee hearings scheduled to begin on June 2. 

Mainstream press comment was highly favorable, but on Sunday, May
24, John Cardinal O'Connor, head of the Archdiocese of New York of
the Roman Catholic Church, delivered a televised sermon denouncing
the proposal as violative of "natural law" and tending to undermine
the institution of marriage. (_New York Times_, May 25.)  Although
both Giuliani and Vallone are Catholics, neither seemed deterred by
the Cardinal's comments, as both were quoted in the _New York
Times_ on May 25 as believing that this is a civil rights equality
issue and the right thing to do.

There was criticism, however, in the gay press reflecting the
unhappiness of the city's openly lesbian and gay councilmembers and
the leaders of the city's lesbian and gay Democratic clubs at
having been excluded from the process of framing the proposed
legislation.  (A domestic partnership bill drafted by Councilmember
Thomas P. Duane, a candidate this year for the State Senate, has
been pending in the Council for several years without being brought
to a floor vote.)  It appeared that the details of the bill were
generated entirely within the Giuliani administration, and even the
Pride Agenda was only given a last minute look before the public
announcement.  The main criticisms of the bill were (1) that it
lacked a general policy statement requiring all city policies to
treat domestic partners equally with marital partners, (2) that it
failed to legislate a requirement that the city contract only with
employers who adopt domestic partnership policies in their own
businesses, similar to a law enacted by the city of San Francisco,
California, two years ago, and (3) that it requires formal
registration in order for a couple to be eligible for any of the
benefits it covers, unlike existing state regulations on tenant
succession in rent-regulated housing, under which a surviving
partner can demonstrate the existence of a protected partnership
after the fact based on the nature of the relationship.

In essence, the bill codifies the provisions of a series of
executive orders issued by prior mayors Edward I. Koch and David N.
Dinkins, under which the city had set up a partnership registry,
accorded recognition to partners in the areas of hospital
visitation, jail visitation, city employment bereavement leave and
child care leave policies, and tenant succession in city-owned
housing, as well as the settlement of a lawsuit under which the
city extended eligibility for participation in its employee health
insurance program to domestic partners of city employees.  In
addition, the bill specifies about two dozen other city policies
that the Giuliani administration has identified as requiring
legislative change in order to effectuate equality between domestic
partners and marital partners.  The Mayor's Office also released a
lengthy table, broken down by agency or commission, adding to the
bill's provisions those sections of the city's regulations and
rules that will be amended to achieve this policy.

The "equality" principle as embodied in the mayor's proposal works
both ways: extending benefits and imposing responsibilities.  For
example, in situations where public officials are required to make
financial disclosures on behalf of themselves and their immediate
family members, they will also have to make such disclosures on
behalf of their domestic partners.

The combination of the bill and the regulatory changes will result
in one of the nation's most wide-ranging municipal domestic
partnership policies.  However, omission of a city contracting
provision means that the bill will fall short of the impact of San
Francisco's contracting law, under which several thousand San
Francisco employers have adopted domestic partnership policies in
order to continue doing business with that city.  By contrast, the
New York measure will not directly expand the number of city
residents who are eligible for domestic partnership health benefits
beyond those already covered by existing executive orders. (Of
course, the city can't directly order private sector employers to
adopt such plans, due to federal preemption of legislative
authority to regulate private sector employee benefit plans.  But
a federal judge in California recently opined that San Francisco's
method of indirectly requiring many employers to adopt such plans
as city contractors would not violate ERISA.)  

In addition to Intro 303, a Republican city council member, Andrew
Eristoff, introduced a bill that would codify existing mayoral
executive orders that require city contractors to certify that they
do not discrimination on the basis of sexual orientation. 
(Reported in LGNY (Lesbian & Gay New York), June 4.)  Although
Mayor Giuliani did renew the prior administrations' executive
orders on this subject, legislation would ensure that future mayors
would be bound to continue the policy.  A.S.L.

Other Domestic Partnership & Marriage Notes

After a long and bitter struggle, and over the loud opposition of
the Archdiocese of Philadelphia, the Philadelphia, Pennsylvania,
City Council voted on May 7 to approve a domestic partnership
ordinance that extends health and pension benefit entitlements to
same-sex partners of city workers.  In votes on separate bills, the
Council also approved a measure to exempt same-sex domestic
partners from the real estate transfer tax on the same basis that
marital partners are exempted, and enacted a ban on employment
discrimination on the basis of marital status.  Mayor Ed Rendell
was a supporter of all three bills. _Lancaster, PA, Intelligencer
Journal_, _York Daily Journal_, May 8.

For the first time, a non-gay private sector employee has sued to
obtain domestic partnership benefits for his opposite-sex partner. 
Paul Foray filed suit May 18 in the U.S. District Court for the
Southern District of New York against Bell Atlantic, the regional
telephone company, alleging that the company's failure to extend
its domestic partnership insurance benefit plan to include
opposite-sex couples violates the federal Equal Pay Act of 1963 and
Title VII of the Civil Rights Act of 1964.  Foray uses a theory
analogous to that adopted by the Hawaii Supreme Court in _Baehr v.
Lewin_, 825 P.2d 44 (Haw. 1993), when it ruled that denying
marriage licenses to same-sex couples constitutes sex
discrimination.  If one's eligibility to participate in a program
depends upon sex (i.e., the program uses sex to classify
individuals and allocate benefits), it is a prima facie case of sex
discrimination, placing a burden on the discriminating party to
provide a lawful justification.  In the case of Title VII, the
employer would be required to show that sex is a "bona fide
occupational qualification," which is another way of saying that it
is necessary for the employer to classify based on sex.  Given the
past track record of the many employers who have adopted inclusive
benefits programs without suffering adverse economic consequences,
it should prove difficult for employers to meet that burden of
justification.  On the other hand, the initial hurdle is to get the
court to accept the analogy and find that the practice of limiting
eligibility for domestic partnership benefits to same-sex couples
is, conceptually, a form of sex discrimination.

American Telephone & Telegraph (AT&T) and two of the unions
representing its employees have reached agreement on a 4-year
contract that will include domestic partnership health benefits
coverage for same-sex partners of the company's employees.  _Boston
Globe_, May 12.

CQ, a publishing company in Washington founded in 1945 that
publishes _Congressional Quarterly_ and a variety of other
publications concerning congressional affairs announced that it
will extend eligibility for health benefits to same-sex domestic
partners of its employees.  The company employees approximately 300
people.  _Washington Blade_, May 15.

Rolland Jacks, a Santa Barbara, California, resident, has filed
suit in Santa Barbara County Superior Court against the City of
Santa Barbara, challenging a recently-enacted domestic partnership
ordinance.  Jacks had spoken against the proposed ordinance at city
council hearings, claiming that its passage would "undermine
marriage."  Jacks' attorney, Benjamin Bull of Scottsdale, Arizona,
contends that the city lacks authority to spend tax money on the
non-marital partners of its city employees.  _Santa Barbara News-
Press_, April 28.

Alabama enacted its own version of the Defense of Marriage Act. 
Alabama House Bill 152, passed by the legislature on May 1 and
signed into law by right-wing fundamentalist Gov. Fob James,
describes marriage as "a sacred covenant, solemnized between a man
and a woman, which, when the legal capacity and consent of both
parties is present, establishes their relationship as husband and
wife, and which is recognized by the state as a civil contract." 
The new law provides that the state shall not issue any marriage
license "to parties of the same sex" and shall not recognize as
valid "any marriage of parties of the same sex that occurred or was
alleged to have occurred as a result of the law of any jurisdiction
regardless of whether a marriage license was issued."

Alaska voters will be presented with a referendum question in
November asking whether they want to change their state
constitution to overrule a recent state court decision holding that
the state's failure to allow same-sex couples to marry legally is
unconstitutional.  _Anchorage Daily News_, May 12; _Washington
Blade_, May 15. A.S.L.

"Expert" Homophobe Dismissed

A federal court dismissed a suit by a homophobic expert witness. 
_Jeffrey v. Nutt_, 1998 WL 204685 (N.D.Tex. April 17).

In a child custody hearing, psychologist John Jeffrey testified as
an expert witness that children are better raised by a mother and
a father than by two homosexual men.  The gay father complained to
the Texas State Board of Examiners of Psychologists that Jeffrey
was imposing his personal bias against homosexuals in the treatment
of children.  The Board investigated, charging Jeffrey with 34
violations of its rules, but ultimately dropped the charges. 
Jeffrey sued the Board under the First and Fourteenth Amendments
and 42 USC 1983, alleging the investigation cost him hospital and
insurance privileges, and seeking damages and an injunction. 

Judge Fish dismissed the constitutional claims in favor of the
Section 1983 claims, then dismissed the Section 1983 claims on the
grounds of absolute immunity for quasi-judicial agency officials. 
Fish dismissed Jeffrey's request for injunctive relief for lack of
standing, because Jeffrey had not alleged another investigation was
likely.  Fish remanded a pendent malpractice claim to state court. 
_Otis R. Damslet_

Reduced Prison Terms for Gay Designers in Money-Laundering Case

A San Francisco gay couple who have an interior decorating business
and who were convicted in the U.S. District Court for the Eastern
District of New York on charges of money-laundering in connection
with their extensive design work for Jose Santacruz Londono, a
notorious Columbia drug lord, were sentenced on May 21 by Judge
Jack Weinstein to much shorter sentences than would be mandated by
the sentencing guidelines.  _U.S. v. Blarek and Pellecchia_. 

Weinstein decided that Antony Blarek 2d should serve 5 years and 8
months, and Frank Pellecchia should serve 4 years.  Weinstein said
that the two gay men would be vulnerable to assault in prison, and
also noted that Mr. Pellecchia is HIV+ and both men were motivated
more by artistic egotism than by greed or ingrained criminal
behavior in their dealings with Londono, who authorized them to
spend huge sums of money on buying trips around the world to outfit
his resplendent country mansions.  

The _New York Times_ reported May 22 that Weinstein had issued a
63-page opinion to justify his downward departures from the
sentencing guidelines, but the opinion was not available as we went
to press.  According to the _Times_, Weinstein's opinion "widely
explored and critiqued Federal sentencing guidelines, and ruled
that the unusual nature of this case compared with other money-
laundering cases provided a rationale for leniency."  

In noting the men's vulnerability as homosexuals in prison,
Weinstein focused on the notoriety surrounding their case, which
was extensively covered in the local tabloid press in New York
City, and their ages and physiques.  "The reality is that
homosexual defendants may need to be removed from the general
prison population for their own safety," wrote Weinstein.  "This
would amount to a sentence of almost solitary confinement, a
penalty more difficult to endure than any ordinary incarceration." 
Weinstein also noted that a lengthy prison term would interfere
with the "holistic" treatment regimen Pellecchia was pursuing for
his HIV infection.  A.S.L.

Supreme Court Notes

Lambda Legal Defense & Education Fund has filed a petition with the
U.S. Supreme Court, seeking review of the 6th Circuit's latest
decision in _Equality Foundation of Greater Cincinnati v. City of
Cincinnati_, 128 F.3d 289 (1997), rehearing en banc denied, 75 Fair
Empl. Prac. Cas. (BNA) 1763 (1998) (not officially published).  In
that case, the 6th Circuit refused to back down from its prior
holding that Cincinnati Issue 3, a city charter measure that
forbids the city from adopting any policy banning discrimination
against gay people, is not unconstitutional, despite an intervening
remand from the Supreme Court for reconsideration in light of
_Romer v. Evans_, 116 S.Ct. 1620 (1996).  In _Romer_, the Supreme
Court struck an almost identically worded measure that had been
adopted by voters as an amendment to the Colorado constitution. 
The 6th Circuit, picking up on a suggestion by Justice Scalia in
his dissent from the Supreme Court's prior action on the case, held
that a city charter amendment presents entirely different
constitutional issues from a state constitutional amendment, thus
denying the relevance of _Romer_ to this case.  Co-counsel with
Lambda are Alphonse Gerhardstein, a Cincinnati attorney who argued
the case in the 6th Circuit, Scott Greenwood of the ACLU of Ohio,
and Ohio attorney Richard Cordray.

Peggy Boring, a North Carolina high school drama teacher who was
dismissed in a controversy over the production of a play that
included a lesbian character, lost her federal lawsuit in February
in a 7-6 vote by the en banc 4th Circuit that overturned her prior
3-judge panel victory.  See _Boring v. Buncombe County Board of
Education_, 136 F.3d 364 (4th Cir. 1998).  But the _Los Angeles
Times_ reported May 13 that she has filed a petition for certiorari
with the U.S. Supreme Court, seeking review of her claim that the
discharge violated her first amendment rights.  The six dissenting
judges in the 4th Circuit stated that the school district had made
Boring a "scapegoat" for the controversy generated by the play. 
Boring has taken a position as a drama teacher at a new arts magnet
school in Charlotte. A.S.L.

Law & Society Notes

Sandra Nelson, whose appeal to the U.S. Supreme Court over
employment discrimination she suffered as a newspaper reporter
because she participated in gay rights political activity, see
_Nelson v. McClatchy Newspapers, Inc._, 931 P.2d 870 (Wash. 1997),
mod'd, 936 P.2d 1123 (1997), cert. denied, 118 S.Ct. 175 (1997),
filed a petition April 2 with the Inter-American Commission on
Human Rights, claiming that the Supreme Court's failure to review
her case violated her rights under the International Covenant on
Civil and Political Rights.  The petition was filed on Nelson's
behalf by the Magnus Hirschfeld Centre for Human Rights, a New York
based non-governmental organization engaged in international legal
advocacy for lesbian and gay rights.

The U.S. Internal Revenue Service has again backed down from
refusing to grant tax exempt status to a gay group after receiving
a letter of protest from the Lambda Legal Defense & Education Fund. 
This time, it was a volunteer organization serving lesbians with
breast cancer, which some bureaucrat at the I.R.S. was refusing to
grant tax exempt status unless it expanded its purpose to serve all
women.  Lambda sent a protest letter, authored by staff attorney
David Buckel, on April 14.  On May 4, the I.R.S. backed down and
responded that it would grant the tax status.  _Associated Press_,
May 4; Lambda Press Release, May 5.

Attempting to counter the flack it encountered when its co-
chairman, Stephen Covey, spoke at a fundraiser for an anti-gay
marriage group in Hawaii, Franklin Covey Co. has announced an
amendment of its formal non-discrimination policy to add "sexual
orientation."  _Salt Lake Tribune_, May 20.

The administration of Harvard Law School announced that it believes
that its current policy of barring military recruiters from the
school's placement office does not violate the federal Solomon
Amendment, because military recruiters may still come on campus by
invitation of individual faculty members or students, and have done
so in recent years.  Harvard was one of the first law schools to
bar military recruiters for using its placement facilities, almost
twenty years ago.  Recently, the Defense Department contacted the
law school as part of its effort to secure entry to law school
placement offices under the Solomon Amendment (which bans various
kinds of federal financial assistance to schools that maintain bans
on military recruitment on campus).  

A study published in the May 5 issue of _Pediatrics_, a
professional journal, found that self-identified gay teenagers were
three times as likely as straight teens to have attempted suicide,
and that a third of all self-identified gay teens surveyed in a
study undertaken in Massachusetts high schools in 1995 reported
having attempted suicide in the past year.  This tends to confirm
earlier studies, including a study commissioned by the U.S.
Department of Health and Human Services during the Bush
administration but not released after its results were leaked and
conservative members of Congress objected to their official
publication.  _Washington Blade_, May 8.

The _Washington Blade_ (May 8) reported that the District of
Columbia Crime Victims Compensation Program paid $4,000 in medical
and emergency dental bills to David Wildt, a gay man from Baltimore
who was subjected to a bias-motivated assault outside a Washington
gay bar in September 1977.  The director of the program told the
_Blade_ that she thought this might be the first time that the
program had made a payment to the victim of an anti-gay bias
attack.  The program is operated by the D.C. Superior Court.

Timothy McVeigh, the Naval officer who was ordered reinstated by a
federal court after being processed for discharge based on
statements contained in his America On-Line profile, was promoted
on May 12 to the rank of Master Chief Petty Officer, which is the
highest enlisted rank in the U.S. Navy, according to press
accounts.  Nonetheless, the government is continuing its appeal of
District Judge Stanley Sporkin's ruling that McVeigh's discharge
violated the "don't ask, don't tell" policy. See _McVeigh v.
Cohen_, 983 F.Supp. 215 (D.D.C., Jan. 26, 1998). _Newsday_, May 9. 


After protracted delay purportedly due to concerns about his
campaign contributions, the U.S. Senate on May 22 confirmed openly-
gay businessman Fred Hochberg to be deputy director of the Small
Business Administration.  Hochberg is a former co-chair of Human
Rights Campaign, the national gay political organization.  He will
be the second-highest ranking openly-gay member of the Clinton
Administration.  (The highest is Virginia Apuzzo, who is in charge
of administration of the Executive Office of the President in the
White House.)  The confirmation process for James C. Hormel, the
San Francisco philanthropist nominated to be ambassador to
Luxembourg, remains stalled in the Senate despite overwhelming
approval by the Foreign Relations Committee, due to "holds" placed
on the nomination by some Republican Senators who assert that
Hormel will use the post for pro-gay activities.

A record number of openly gay people are running for the House of
Representatives in this year's primaries and general elections,
according to a May 27 article in the _Los Angeles Times_.  The
article lists: Incumbents Barney Frank (D.-Mass.) and Jim Kolbe
(R.-Ariz.), as well as new candidates Christine Kehoe, seeking to
unseat Rep. Brian Bilbray (R-CA) in San Diego; Tammy Baldwin (D),
seeking an open seat in Wisconsin; Susan Tracy (D), seeking an open
seat in Massachusetts; and Margarethe Cammermeyer (D), seeking to
unseat Rep. Jack Metcalf (R-Wash.).  The _Times_ article asserts
that three of the four lesbian candidates have raised more money
than their opponents.  A.S.L.

Miscellaneous Litigation Notes

The New York Appellate Division, First Department, ruled May 28 in
a tenant succession case under NY rent regulations that the
prevailing successor to the lease should have been awarded
attorneys fees in a successorship dispute with the landlord.  _245
Realty Associates v. Sussis_, NYLJ, June 1.  Under the terms of the
lease, in any litigation between the landlord and the tenant, the
prevailing party would be entitled to attorneys fees.  The court
majority reasoned that if the landlord had prevailed in its attempt
to evict the brother of the deceased tenant, the landlord would
have been entitled to an award of attorneys fees from the
decedent's estate, so it was only fair to construe the lease
broadly to award fees in this case to the prevailing survivor-
successor.  A dissenting judge, agreeing with the trial court that
the successor's claim was brought under tenant succession
regulations rather than the lease, argued that the successor was
never a party to the lease and thus not entitled to benefit from
its attorney fee provision.

A jury in Carroll County, Georgia, convicted Shannon Blair, 21, of
the murder of Bobby Payton, 39, who was allegedly Blair's lover. 
Firefighters responding to a fire at Payton's mobile home found his
body with 37 stab wounds.  Although Blair had burns on his face, he
initially denied having been present at the fire, but ultimately he
admitted having stabbed Payton.  At the trial in Carroll County
Superior Court, Blair's attorney argued that Payton had sexually
abused Blair and it was really a self-defense case, but the jury
found otherwise.  _Southern Voice_, May 7.

The Chancery Court in Little Rock, Arkansas, heard oral argument
May 29 on a motion by the state of Arkansas to dismiss the pending
challenge against the constitutionality of the state's sodomy law. 
The plaintiffs in _Picado v. Bryant_ are represented by Lambda
Legal Defense Fund Staff Attorney Suzanne B. Goldberg, cooperating
attorney David Ivers of Mitchell, Blackstock & Barnes, and attorney
Gary Sullivan, who is "of counsel" to the plaintiffs.

The Georgia Supreme Court heard oral argument on May 18 in a new
challenge to the constitutionality of the state's draconian felony
sodomy law, under which prison terms of up to 20 years are
authorized regardless of consent.  At issue in _State v. Powell_ is
whether a 29-year-old man can be convicted of sodomy for engaging
in consensual oral sex with his 17-year-old niece.  _Atlanta
Constitution_, May 19. A.S.L.

Legislative Notes

The Rhode Island legislature was close to repealing the state's law
against consensual sodomy as we went to press.  The House passed a
sodomy repeal bill, H 7585, by a 49-40 vote on May 7, and the
relevant Senate committee approved the measure late in the month. 
It was reported that the governor, a Republican, would allow a
repeal bill to become law without his signature.  The repeal would
be effected by amending the state's "crime against nature" law so
that it would apply solely to bestiality.  Rhode Island already
prohibits discrimination on the basis of sexual orientation, in
common with all other New England states except Maine.

Responding to voter petitions that required either repeal or a
referendum, the Fort Collins, Colorado, City Council has scheduled
a referendum for November 3 on whether a recently enacted ordinance
banning sexual orientation discrimination should remain in effect. 
The council had unanimously passed the ordinance, but 54 local
clergy organized a petition drive to seek repeal.  _Rocky Mountain
News_, May 6.

The _Washington Blade_ reported May 15 that the Fayetteville,
Arkansas, City Council voted 6-2 on May 5 to override Mayor Fred
Hanna's veto of a resolution expanding the city's equal employment
policy to include "sexual orientation" and "familial status."  We
believe this may be the only official measure in the state of
Arkansas addressing the issue of sexual orientation discrimination.

The New York State Assembly has again passed a bill to amend the
state's Human Rights Law to add "sexual orientation" to the covered
categories.  This is the sixth consecutive year that the bill has
passed the Democrat-controlled Assembly.  Sen. Roy Goodman (R.-
Manhattan), who chairs the relevant Senate committee and is a co-
sponsor of the bill in the Senate, promised the Empire State Pride
Agenda, the state's gay lobbying group, that he would schedule
hearings, but passage in the Senate depends on the willingness of
Majority Leader Joe Bruno, a staunch opponent of the bill, to let
it come to a vote.  _NY Blade News_, May 22.

In a heartbreaking 4-3 vote, the Des Moines, Iowa, City Council
rejected a proposal to add "sexual orientation" to the city's human
rights ordinance.  The mayor had supported the change.  _Omaha
World-Herald_, May 20.  However, just days earlier, the city
council in Iowa City voted 4-3 to allow same-sex couples without
children to qualify for city housing assistance.  Council member
Dee Vanderhoef, identified as having cast the deciding vote, said:
"I'm real clear that it is time to move forward and identify
couples as families, whether it be heterosexual or whether it be
homosexual.  For me, it's a human issue."  Iowa City's human rights
ordinance forbids sexual orientation discrimination. _Omaha World-
Herald_, May 14.

Voters in Ypsilanti, Michigan, rebuffed an effort by anti-gay
forces to repeal a gay rights ordinance that was passed in December
1997.  The city council had suspended the ordinance in February
pending a vote on the referendum, which was forced by submission of
petition signatures.  The vote against repealing the ordinance was
56 percent to 44 percent in this city of 25,000 residents. 
_Milwaukee Journal Sentinel_, May 7; _The Capital Times,_ May 6.

The Berkeley, California, City Council voted May 5 to deny free
dock space to the Sea Scouts, a unit of the Boy Scouts of America,
because the organization has a formal policy of excluding openly
gay people from participation.  The 8-1 vote ended a 60-year
practice of providing free accommodations to the organization. 
_San Francisco Chronicle_, May 6. A.S.L.

International Notes

The BBC World Service reported May 21 that the parliament in Cyprus
had passed a bill decriminalizing consensual gay sex, in order to
bring the country in line with the other members of the Council of
Europe.  But, in an analysis released by the International Gay &
Lesbian Human Rights Commission on May 26, Sydney Levy and Scott
Long contended that the new law was a charade, in effect replacing
the old repressive law with a new repressive law.  The old law
punished "carnal knowledge of any person against the order of
nature" with five years imprisonment.  While details of the new
bill aren't fully known, it appears that "carnal knowledge" has
been replaced with references to "unnatural licentiousness between
men."  In addition, the new law reportedly outlaws advertisements
for gay partners, "indecent proposals," and contains "ambiguous"
words to ensure that homosexuality is not "encouraged."  It also
introduces stiffer penalties for same-sex rape than for opposite-
sex rape.  Will the Council of Europe be fooled by this?

Radio Liberty reported May 22 that the Romanian government has
proposed amendments to that nation's criminal code that would
effectively decriminalize consensual gay sex, in order to comply
with Romania's new obligations as a party to the European
Convention for the Protection of Human Rights.

Leaders of Britain's governing Labour Party have rejected demands
by gay advocates to include sexual orientation in a pending hate
crimes law, on the ground that the purpose of the law is to deal
with racist violence and the addition of other categories would
"blur the anti-racist message."  The Labour leaders also rejected
a demand that a pending Human Rights Bill include sexual
orientation; although British domestic law will be incorporating
the terms of the European Convention on Human Rights, which has
been interpreted by juridical bodies of the European Union to ban
sexual orientation discrimination in some cases, the British
activists were concerned that because the Convention does not
specifically mention sexual orientation, British courts might not
follow that interpretation. _The Guardian_, May 28.  * * *  This
summer, British MPs will vote on a measure to equalize the age of
consent for all legal sexual activity, regardless of the genders of
participants.  At present, the age of consent for gay male sex is
two years higher than for lesbian sex or heterosexual sex.

The German Parliament has approved a measure that will grant a
"blanket pardon" to all people who were convicted on "political,
military, racial, religious or philosophical grounds" during the
Nazi government of 1933-1945.  The new law was said to provide
"moral rehabilitation" for those whose convictions were never
voided by post-War German courts (in some cases because the German
penal code continued to include their offenses, including sodomy). 
A heavy part of the debate focused on those convicted of homosexual
conduct by the Nazis, as such conduct was a crime in Germany before
the Nazi era and continued to be criminal for decades afterwards. 
Supporters of the new law say that it includes anti-gay
prosecutions, even though homosexuality is not specifically
mentioned.  No monetary restitution is made by the new law.  _N.Y.
Times News Service_, May 29; _London Daily Telegraph_, May 28.

United Press International reported May 25 that the Canadian
province of Nova Scotia has decided to pay pension benefits to
surviving partners of same-sex couples on the same basis as
surviving partners of opposite-sex couples.  The provincial
government decided that a recent Ontario Court of Appeal decision,
with which the federal government appears likely to acquiesce,
should be treated as a national precedent.  (A government spokesman
said a decision on appealing had not yet been made; the deadline is
June 22.)  Two cases were pending before the Nova Scotia Human
Rights Commission by gay men, Wilson Hodder and Paul Boulais,
seeking recognition of their partnerships for this purpose. 
_Toronto Globe and Mail_, May 26.  A.S.L.

Professional Notes

The Association of the Bar of the City of New York, the nation's
largest municipal bar association, has decided to make its Special
Committee on Lesbians and Gay Men in the Profession into a regular
standing committee of the Association with expanded subject-matter
jurisdiction to include all legal issues concerning lesbian and gay
rights.  The vote of the Association's executive committee is
subject to ratification of a by-laws amendment by the membership at
next year's annual meeting, since the establishment of new standing
committees is always accomplished through an amendment of the
Association's by-laws.  The new committee, effective with the 1999-
2000 committee year, would be called The Committee on Lesbian and
Gay Rights.

The Philadelphia Bar Association's Committee on the Legal Rights of
Lesbians and Gay Men is sponsoring an appearance by New Jersey
Superior Court Judge Thomas G. Bowen, who is co-chair of the New
Jersey Supreme Court's Task Force on Gay and Lesbian Issues.  The
event will take place at the Bar Association, 1101 Market Street,
10th floor board room, in Philadelphia, on June 11, 1998, at 8:30
a.m.  Reservations are required.  Call Jeffrey M. Lindy at 215-575-
9290 or B. Adam Sagan at 215-639-6646 for information.

The _San Francisco Chronicle_ reported May 24 that four openly
lesbian and gay attorneys are contending for judicial office on a
June ballot in that city.  Nancy Davis, a lesbian civil rights
lawyer, is challenging incumbent Municipal Court Judge Dorothy Von
Beroldingen, who is 83 years old and noted as a pro-gay judge. 
Stephen Collier, a gay staff lawyer at Tenderloin Housing Clinic,
is challenging incumbent Municipal Court Judge Kevin Ryan.  Openly
lesbian Commissioner Carol Yaggy and openly gay Deputy Public
Defender Ron Albers are competing against each other for a vacant
seat on the Municipal Court.

The Colorado Legal Initiatives Project (CLIP), a non-profit law
office specializing in legal advocacy on lesbian/gay/bi/trans
issues in Colorado, is seeking a staff attorney.  This organization
was formed in 1992 in response to Amendment 2, but has widened its
focus to a broad array of issues.  They are looking for someone
with at least 5 years of litigation experience who is admitted to
practice in Colorado or who can gain admission by motion, and who
has experience with or interest in GLBT civil rights.  Starting
salary $35,000 - $38,000 depending on experience, with benefits. 
Minorities and people with disabilities are especially encouraged
to apply.  Starting date approximately 7/1/98.  Send resume and
writing sample to Colorado Legal Initiatives Project, PO Box
300397, Denver CO 80203. A.S.L.

AIDS & RELATED LEGAL NOTES

Georgia Supreme Court Upholds HIV Testing Statute

The Georgia Supreme Court unanimously ruled on May 4 that a state
law authorizing a court to compel an HIV test of a criminal
defendant under certain circumstances does not violate the federal
4th or 14th Amendments.  _Adams v. State_, 1998 WL 213752. 
However, unanimity was partially broken by Justice Sears, who
concurred separately to comment that she concluded the trial court
had erred in ordering the testing of the defendant.

A trial judge ordered that Malik Adams undergo HIV testing when he
was arrested after a scuffle with two police officers.  Adams was
wearing a bandage, and one of the police officers suffered some
scratches.  The police officer told the trial judge that he thought
it was possible that Adams might have bled and so he might have
been exposed to Adams's blood.  On this basis, the court ordered
HIV testing pursuant to a Georgia statute that authorizes courts to
order such testing when there is probable cause to believe that a
"victim" has been exposed to the blood of a defendant.

Adams claimed that the statute facially violates the 4th Amendment
prohibition on unreasonable searches and the right of privacy under
the due process clause of the 14th Amendment.  Writing for the
court, Justice Hugh Thompson rejected both constitutional claims. 
While acknowledging that a blood test is a search within the
meaning of the 4th amendment and that privacy rights protected by
the due process clause are implicated by the statute, Thompson
found that the state has a compelling interest in authorizing HIV
testing on behalf of a person who is exposed to a criminal
defendant's blood, and that a blood test is a minimally intrusive
means of advancing that interest, especially when the statute
carefully limits the use of the resulting test information through
confidentiality protection.  

Although all members of the court agreed with this conclusion,
Justice Sears pointed out in her concurrence that the testimony by
the scratched police office was not really sufficient to meet the
probable cause requirement of the statute.  However, she noted,
since Adams had long since been tested pursuant to the court's
order, the issue was moot.  A.S.L.

Ohio Supreme Court Rejects Appeal in HIV Spitting Case

In a 6-1 vote, the Supreme Court of Ohio ruled against an HIV+ man
who was convicted for felonious assault with a deadly weapon after
spitting in the face of a police office.  _State v. Bird_, 1998 WL
195646 (May 6).  The court ruled that since the defendant initially
pleaded no contest to the charge, he could not now challenge
whether his saliva constituted a "deadly weapon" under Ohio law.

In October 1993, Jimmy L. Bird was indicted for one count of
felonious assault with a deadly weapon after he spit in a police
officer's face.  The police officer tested negative for HIV
immediately after the incident.  Bird entered a plea of no contest,
and was sentenced to probation.  In April 1996, Bird's probation
was revoked as a result of several unrelated misdemeanor
convictions.  Bird then filed a delayed appeal challenging his
felonious assault conviction.

Writing for court, Justice Sweeney rejected Bird's contention that
the indictment was insufficient to charge him with felonious
assault.  The court implicitly concluded that whether or not saliva
constitutes a deadly weapon under Ohio law is a question of fact. 
("Deadly weapon" is defined as "an instrument, device, or thing
capable of inflicting death, and designed or specially adapted for
use as a weapon, or possessed, carried, or used as a weapon.")  The
court explained that had the case gone to trial, the prosecution
would have had to prove beyond a reasonable doubt all of the
elements of the indictment, including that Bird's saliva is a
deadly weapon.  Since Bird pled no contest to the charge, however,
he admitted the truth of all of the allegations in the indictment.

In a lone dissenting opinion, Justice Pfeifer challenged the
majority's ruling that the definition of a deadly weapon is a
question of fact exclusively.  "What if the indictment had said
Bird assaulted Officer Shirk with a powder puff, a water balloon,
or a jelly doughnut, and Bird had pled no contest?" Pfeifer asked. 
Pfeifer concluded that the trial court abused its discretion in not
making a legal determination that saliva is a deadly weapon before
convicting Bird.

The court also rejected Bird's assertion that he was denied
effective assistance of counsel because his lawyer did not file a
motion to dismiss the indictment and did not seek expert testimony
to demonstrate that the saliva of an individual with HIV is not a
deadly weapon.  The court found that Bird's attorney did begin
undertaking efforts to develop expert defense testimony. 
Additionally, the plea of no contest may very well have been the
best trial tactic for Bird in this case, the court concluded, since
the prosecution refrained from indicting Bird with the more serious
charge of felonious assault on a police officer, and recommended
probation in exchange for the no contest plea. _Ian Chesir-Teran_

Second Circuit Reverses Compensatory Damage Award in HIV Employment
Discrimination Case Due to Lack of Mitigation

In _Greenway v. Buffalo Hilton Hotel_, 1998 WL 210677  (April 30),
the U.S. Court of Appeals for the Second Circuit clarified the duty
of an employee who was found to have been wrongfully discharged in
violation of the Americans with Disabilities Act to mitigate his
damages after discharge, but affirmed his right to punitive damages
under the ADA.

Danny Greenway had been working for the Buffalo Hilton Hotel for
five years when he first applied for disability benefits relating
to HIV in 1992.  While the condition had not been disclosed
previously, it was not required to be disclosed.  What is clear
from the record was that after five years of excellent employee
evaluations, there was a marked deterioration of that record.  Mr.
Greenway was dismissed after four disciplinary write-ups during the
following 17 months. 

Greenway sued Hilton in federal court in December 1994 alleging
that he had been discharged on account of a disability - his HIV+
status - in violation of the ADA and the New York Human Rights Law.
Hilton answered that the dismissal was not on account of his HIV
status, but in compliance with standard company policy, on account
of his four disciplinary writeups.  Greenway, naturally, argued
that this was all a pretext, and during trial, elicited testimony
that the "policy" had not been uniformly applied, and that there
were other employees who had not been dismissed after as many as
eleven such writeups, some of which were far more serious than the
relatively minor matters which were the subject of Greenway's.

The jury was apparently persuaded, awarding Greenway $65,000 in
back pay, $50,000 for future medical premiums, $324,000 for future
medical costs, together with punitive damages of $1,000,000 for a
total of $1,439,000, plus costs and attorneys fees. After trial,
the trial court denied Hilton's motion for new trial, but reduced
the back pay award by the $7,700 Greenway had earned after
termination, reduced the punitive damages to the $200,000 limit of
punitive damages permitted by the ADA, and added $10,000 to the
compensatory award as "front pay."

Hilton appealed on two points.   The first concerned remarks by
Greenway's counsel during closing argument.  The gist of these
remarks was that gay-bashing can take place without use of a
baseball bat. Hilton argued that references to gay-bashing and to
"whacking a homosexual with a baseball bat" were intended to
inflame the jury and suggest that Hilton's actual motivation was
anti-homosexual animus.  The court rejected this argument
completely.  While these remarks were found to be "hardly 
commendable," the court ruled that in context, the jury ruled on
the evidence and not the lawyers' arguments, and that Hilton opened
the door for these remarks, as Hilton's counsel disingenuously
urged the jury not to judge Greenway for his lifestyle or his
disease. The court ruled that these two remarks canceled each other
out.

The second argument concerned shifting burdens of proof.  A
plaintiff in this type of case must come forward with sufficient
facts to make out a prima facie case of discharge under
circumstances giving rise to an inference of discrimination.  Once
this burden is met, it creates a presumption of discriminatory
intent, which the employer must rebut by showing legitimate,
nondiscriminatory reasons for its actions.  Once the employer's
burden is met, the presumption against the employer "drops out of
the picture" and the plaintiff must come forward with facts
showing that employer's explanation was a pretext.  Hilton argued
that the jury either misunderstood or chose to misapply the judge's
instructions, as the jury found that Hilton came forward with no
evidence of legitimate, nondiscriminatory reasons for discharge. 
The court rejected this argument because this matter was not
presented to the trial court while the jury was still impaneled and
the error could be corrected; the argument was waived.

The court did however, modify the award of compensatory damages. 
After his discharge, Greenway did six months of temp work and got
retrained as a machinist.  He had been unemployed since October
1994, however, since he said he could not find work as a machinist
in the Buffalo area, and would not take work as a bartender.  The
court adopted Hilton's argument that Greenway did not exercise
reasonable diligence in finding other work.  Because Greenway did
not exercise reasonable diligence in finding other work, he would
not be allowed to show how much he lost as a result of the Hilton
job.  All compensatory damages (back wages, front wages, lost
insurance premiums and medical costs) were stricken.

In sum, the court affirmed as to liability and punitive damages,
but struck compensatory damages. _Steven Kolodny_

Federal Court Denies Summary Judgment to Day Care Centers in HIV
Discrimination Case

U.S. District Judge Crabb (W.D.Wis.) denied a motion for summary
judgment by three day care centers that are charged with violating
the Americans With Disability Act, Title III (public
accommodations) by discriminating against L.W., an HIV+ child. 
_U.S. v. Happy Time Day Care Center_, 1998 WL 264188 (April 13). 
In March 1996, when L.W. was 3 years old, his legal guardian
applied to three different day care centers, all of which refused
to take L.W. because of his HIV status.  The guardian then filed
charges with the Justice Department, which is suing on L.W.'s
behalf.

The defendants argued that an HIV+ child does not have a disability
within the meaning of the ADA.  They contended that L.W., who has
suffered mild symptoms of HIV infection, is not substantially
limited in any major life activity, and that they are not excluding
L.W. because of a record of a disability or because L.W. is
perceived as having a disability.

Judge Crabb's opinion notes that there is a split among the circuit
courts of appeals as to whether asymptomatic HIV-infection is a per
se disability under the ADA, which will be resolved by the end of
the current Supreme Court term when a decision is issued in _Abbott
v. Bragdon_, 107 F.3d 934 (1st Cir.), cert. granted, 118 S.Ct. 554
(1997).  But the circuit split focuses on whether reproduction is
a major life activity and whether the effect of HIV-infection on
reproduction constitutes a significant limitation on that activity. 
Such questions seem marginally relevant to the question whether a
3-year old is disabled.

Crabb decided that the issue of what constitutes a major life
activity should be evaluated based on the particular plaintiff, in
this case a 3-year old boy.  Crabb concluded that L.W.'s infection
could potentially affect his ability to care for himself, to the
extent that a 3-year old can care for himself, if only due to the
need to coordinate a variety of medications for which he obviously
needs considerable assistance, and caring for oneself is listed in
the ADA regulations as a major life activity.  

Since there was no indication that the day care centers knew
anything about L.W.'s passed hospitalizations, it was unlikely that
L.W. would be covered under the second prong of the ADA definition
(record of a disability), but there was a good chance that L.W.
could be covered under the third prong, of being regarded by others
as having a disability.  

As to this, the defendants seized on lower federal court decisions
that have given a narrow construction to the third prong, holding
that it applied to situations where a defendant perceived that the
plaintiff was substantially limited in a major life activity. 
Judge Crabb, harking back to the Supreme Court's _Arline_ decision,
rejected such an approach, opining that if one was excluded from a
program because of fears of contagion (as in the _Arline_ case
itself), then one was being excluded because of perceived
disability.

Consequently, the motions for summary judgment were denied because
Crabb concluded that there was a genuine factual dispute about
whether L.W. is covered under the ADA.  A.S.L.

Kansas Appeals Court Grants New Trial After Prosecutor Suggests To
Jury The Defendant Is HIV+ 

A Kansas man convicted on drug charges was granted a new trial on
account of prosecutorial misconduct that including suggesting to
the jury during closing argument that syringes found in defendant's
apartment were HIV-infected. _Kansas vs. Gray_, 1998 WL 227144
(Kansas Ct. App., May 8).  The appeals court found. in an opinion
by District Judge Becker, that in light of the state's weak case,
the amount of egregious statements made by the prosecutor, whether
objections were made or not, were so prejudicial as to amount to
reversible error. 

On July 21, 1994, the police were called twice to the home of
defendant Bobby Joe Gray.  Armed With a search warrant, they
confiscated a small amount of marijuana and drug paraphernalia
including spoons and syringes and items indicative of drug
trafficking.  Gray, his live-in girlfriend and a female neighbor
were all charged with possession and distribution of marijuana and
possession of drug paraphernalia.  Generous plea agreements were
made with the two women in exchange for their testimony against
Gray, upon which the state heavily relied to support their theory
of constructive possession since the evidence was weak for actual
possession. 

During trial, defendant denied knowledge and ownership of the
spoons and syringes.  The prosecutor, not believing him, directed
him to exhibit his arms.  Gray did so, revealing nothing, to which
the prosecutor commented: "[S]ure saw a lot more on the day we
arrested you." The defense made a timely objection.  A motion for
mistrial was denied.  The court agreed to admonish the jury to
disregard the statement but did not do so until immediately before
the jury retired to deliberate.

Numerous improper comments were also made during the prosecutor's
closing argument, to which defense made no objection.  The most
serious was a statement made by the prosecutor that the syringes in
evidence were HIV-contaminated.  Other statements made included the
prosecutor's opinion that Gray was "the kingpin," referring to
preliminary hearing testimony not entered as evidence at the trial,
telling the jury that "the prosecutor was an attorney for the
individual jurors and they were his clients" and (my favorite)
defining reasonable doubt as "[i]f there's some reasonable
explanation to not believe my claims, then you've got to go with
the defendant" (pity he didn't make it rhyme as Johnny Cochran
did).  Gray was convicted.

Gray immediately appealed his denied motion for mistrial and
alleged, inter alia, that prosecutorial misconduct violated his
right to a fair trial.

Judge Becker found that the prosecutor's remark suggesting
previously-seen needle marks on Gray's arm during cross-examination
was gross and flagrant and that the admonishment came too late and
may have heightened the jury's awareness of the comments. Most
importantly, since the evidence was already weak against Gray, it
is implausible that it had so little effect on the jurors as to be
considered mere harmless error.

Turning to the HIV and other remarks made during closing argument,
the court had to consider whether the remarks were outside the
considerable latitude the prosecutor has to discuss the evidence
and if so, whether they were so prejudicial as to amount to
reversible error in light of the record as a whole.  Judge Becker
found that many of the arguments presented by the state went beyond
the scope of fair comment on the evidence, even considering the
liberal latitude afforded to them.  Following the same reasoning,
the court ruled that the trial court's attempt to cure the
prejudice was too remote in time and context from the original
statement, which had been allowed to germinate in the jury's mind
by the time any cure was offered.  If the first statement was not
prejudicial, then certainly, when combined with the egregious
remarks during closing, the defendant's trial was substantially
prejudiced and he is entitled to a new trial.

The court continued that under normal circumstances a
contemporaneous objection is required to preserve an issue of
improper closing argument for appeal.  However, the court followed
recent local precedent by reiterating the duty a prosecutor and a
trial judge owe to protect a defendant's right to a fair trial. 
Here, the court ruled that a trial judge need not wait for the
defendant to object to prevent prosecutorial misconduct from
occurring.  Both the prosecutor and the trial court failed in this
duty, so the defense's failing to object does not preclude appeal
on this issue.  _K. Jacob Ruppert_

Military Appeals Court Rules on Rights of HIV+ Officer

Major James T. Goldsmith was accused and convicted of willfully
disobeying a "safe sex" order from a superior officer after he had
unprotected vaginal intercourse with two women while he was HIV+. 
Goldsmith later alleged that while he was incarcerated, the Air
Force withheld his HIV medication, putting him in grave danger, and
threatened to retroactively apply a new federal statute to
Goldsmith allowing Goldsmith to be dropped from the rolls of the
Air Force after six months of confinement in prison.  

Goldsmith filed a Writ Appeal of Extraordinary Relief with the
Court of Criminal Appeals seeking to compel the Air Force to
provide uninterrupted HIV medication during his confinement and to
enjoin the Air Force from dropping him from the rolls.  The appeal
was denied.  Goldsmith then made the same application to the United
States Court of Appeals for the Armed Forces.  

On April 29, 1998, the court denied as moot the portion of the
application dealing with Goldsmith's HIV medication, however, the
court enjoined the Air Force from dropping Goldsmith from its
rolls. _Goldsmith v. Clinton_, 1998 WL 210863.  On the HIV
medication application, the court found that by the time the appeal
was heard and ultimately decided, Goldsmith had been released from
confinement rendering his application moot.  The lower court relied
on the judgment of the military doctors and found that the
withholding of Goldsmith's medication was not unusual or cruel. 
The Court of Appeals never addressed the merits of the claim.  On
February 10, 1996, 10 U.S.C. sec. 1167 took effect, which allows
the military to drop from the rolls any commissioned officer by
reason of a sentence of confinement of more than six months
adjudged by a court-martial.  This law took effect several months
after Goldsmith was sentenced and confined.  The Court of Appeals
found that application of this law to Goldsmith was ex post facto
and therefore unconstitutional. 

A strong dissent argued that 1167 was a purely administrative
statute and did not concern punishment.  However, the majority of
the court agreed that permitting the Air Force to drop Goldsmith
from its rolls would essentially permit the Air Force to amend his
sentence at will.  _Todd V. Lamb_

New York Appellate Division Affirms Dismissal of AIDS-Phobia Case
Against Hospital

The New York Appellate Division, 2nd Department, unanimously
concluded that a woman who was accidentally pricked by a needle at
a hospital failed to sustain her cause of action for negligent
infliction of emotional distress based on her fear of contracting
AIDS.  _Schott v. St. Charles Hospital_, 1998 WL 228366 (Nay 4). 
Marie Suzanne Schott was stuck by a 25-gauge needle as she put on
a newly-laundered hospital gown in the Radiology Department of the
hospital while preparing to have an x-ray taken.  Since the
incident, Mrs. Schott has tested negative for HIV several times.

The trial court granted the hospital's motion for summary judgment. 
The Appellate Division unanimously affirmed.  A plaintiff must
satisfy a two-prong test to successfully demonstrate actionable
AIDS-phobia, the court explained: (1) actual or probable presence
of HIV where the alleged transmission occurred, and (2) that there
was some plausible mode of transmission whereby HIV contamination
could with reasonable likelihood enter the plaintiff's bloodstream. 
In this case, the Appellate Division agreed with the trial court
that the first prong was not satisfied.  The needle in question was
not the type used for blood transfers, and was caught in a gown
that had just been washed.  The likelihood of HIV presence or
contamination therefore was extremely remote.  The court also ruled
that no negative inference should be drawn against the hospital for
failing to test the needle for HIV within days of the accident. 
The court concluded the hospital's failure to test the needle was
not motivated by an intention to destroy evidence.

According to the Appellate Division, summary judgment in favor of
the hospital was appropriate since Mrs. Schott's fear of
contracting AIDS was "too irrational and speculative." _Ian Chesir-
Teran_

6th Circuit Denies HIV+ Prisoner's Bid for Early Release

In a per curiam opinion issued without oral argument on May 6, a
panel of the U.S. Court of Appeals for the 6th Circuit rejected a
bid by Marvin Lee Bell, who is serving a 70-month sentence for
drug-related offenses, for an early release due to his HIV+ status. 
_Bell v. Beeler_, 1998 WL 246379 (unpublished disposition).  

A panel of prison officials had denied Bell's petition for
compassionate release, concluding that he might continue his
criminal activity if released.  His appeal to the prison warden was
denied, on the ground that the sentencing judge had been aware of
his HIV-status at sentencing, that his criminal history merited the
lengthy sentence, and that he was reckless about other people's
health, as demonstrated by his having fathered children after being
diagnosed HIV+.  Bell then pointed out that his children were
conceived before he learned of his HIV status.  The warden
corrected the record but reiterated his ruling.  A further appeal
to the Regional Director was denied, relying primarily on the first
cited ground.  

The court of appeals dismissed Bell's appeal as frivolous, finding
that no constitutional claim of discrimination based on his HIV-
status could be raised because, in the court's words, "the denial
was based on the non-discriminatory reasons that the judge was
aware of Bell's health status when he imposed the sentence and that
Bell's life expectancy exceeded one year." A.S.L.

Montana Supreme Court Rules Against Workers Comp Claimant on AIDS
Phobia

The Montana Supreme Court affirmed the finding of the state's
workers' compensation tribunal that a claimant who alleged his
mental illness stemmed from an occupational exposure to HIV and
Hepatitis B was malingering.  _EBI/Orion Group v. Blythe_, 1998 WL
208147 (Apr. 28).  Several years after a needle stick at work
exposed him to HIV, Michael Blythe filed a worker's compensation
claim alleging that he suffered from a schizoaffective disorder
caused by the stress of worrying about contracting AIDS from the
needle stick.  The Worker's Compensation Court found that Blythe
had fabricated his illness and was not disabled.  The Montana
Supreme Court affirmed, finding substantial credible evidence in
the record to support the finding that Blythe was malingering,
including admissions by Blythe's own treating physician and his
expert witness that it was possible he was faking the illness.  In
addition, Blythe's own "meticulous" diary, which the lower court
found showed Blythe's "preoccupation with launching a lawsuit" did
not mention any symptoms of the mental illness until just before he
went to see a psychiatrist.  The court also affirmed the lower
court's findings concerning the weight to attach to the competing
medical opinions in the case, finding that although Blythe's
treating physician's opinion was entitled to greater weight than
the other expert witnesses, it was not conclusive upon the trier of
fact.  _Dirk Williams_

Missouri Judge Orders Trial in HIV-Assault Case

After a two-day evidentiary hearing, St. Charles County, Missouri,
Associate Circuit Court Judge Jon A. Cunningham ruled on May 27
that Brian Stewart must stand trial on charges that he deliberately
infected his son with HIV through an injection of tainted blood.

Stewart had an affair with Jennifer beginning in 1990, but had
denied that he was the father of her son, who was born in 1991,
even though genetic testing indicated that he was.  The boy was
diagnosed with AIDS in 1996.  He had never received a transfusion
and his mother was not HIV+.  Investigators then focused on Stewart
because he was employed as a phlebotomist at a time when the boy
was a patient at the hospital where he worked, and he had the
opportunity to inject the boy with HIV-tainted blood.  Jennifer
recalled an incident at that time when she left the boy's room
while Stewart was there, and that when she returned 20 minutes
later the boy was screaming and crying.  Various other witnesses,
including Stewart's ex-wife and a current girlfriend, testified
about comments he made that could be construed as showing knowledge
about the boy's HIV-status at a time before it was actually
diagnosed.  Stewart's attorney contended that the prosecution's
case consists entirely of theories and speculation.  Judge
Cunningham determined that there is enough evidence to justify
going forward with a trial, and denied Stewart's attempt to get the
charges dismissed.  _St. Louis Post-Dispatch_, May 28.  A.S.L.

AIDS Law & Society Notes

Dr. Maurice Genereux, a Toronto AIDS doctor, has been sentence to
just under two years in prison and three years probation for
assisting two HIV+ men who were depressed with their suicides by
prescribing lethal doses of sleeping pills for them.  Prior to the
criminal proceeding, Genereux was stripped of his medical license. 
The Canadian papers were describing him as the first physician in
North America to be convicted of assisting suicide.  Genereux is
appealing the decision by Judge Charles Scullion of the Ontario
Court's Provincial Division.  _Toronto Globe and Mail_, May 14.  

The U.S. Court of Appeals for the 3rd Circuit has lined up with
several other circuits in adopting a restricted view of the
application of the Americans With Disabilities Act (ADA) to the
health insurance benefits employers provide to their employees.  In
_Ford v. Schering-Plough Corp._, 1998 WL 258386 (May 22), a panel
of the circuit rejected an ADA claim brought by Colleen Ford, who
had to retire from her employment due to a mental disability. 
Although the employer's benefits plan provided physical disability
benefits through age 65, the plan provided mental disability
benefits for only two years.  Ford claimed that the cap on mental
disability benefits was discrimination on the basis of a
disability.  The court disagreed, finding that all employees of the
defendant, regardless of their disabilities, were covered by the
same rules, and that an employer is free under the ADA to provide
different benefits for different kinds of disabilities.  In
addition to rejecting Ford's Title I (employment discrimination)
claim, the court also rejected a Title III (public accommodations)
claim, holding that Title III is concerned with physical access to
places, not with differences in benefits offered by the insurance
company from whom the employer purchased coverage. Unfortunately,
a similar decision by the 6th Circuit last year was denied
certiorari by the Supreme Court.  More bad news for PWAs. . .

The Louisiana Court of Appeal, ruling on an interlocutory appeal,
decided that plaintiffs in an HIV-transfusion case bore the burden
of showing that the medical malpractice statute violated their
constitutional rights by setting a short statute of limitations
that they were unable to meet in the pending case.  _Doe v.
Southern Baptist Hospital_, 1998 WL 248619 (May 6).  

U.S. District Judge Breyer (N.D.Cal.) released an order May 13 in
_U.S. v. Cannabis Cultivators Club_, 1998 WL 257103, issuing an
injunction against the continuing activities of the defendant, an
organization that grows and distributes marijuana for medical use. 
Many of the defendant's clients are persons with AIDS who claim
that marijuana use is valuable in dealing with aspects of their
physical condition.  Although Californians approved a ballot
measure, Proposition 215, repealing state criminal penalties for
humanitarian possession and use of marijuana, federal drug
enforcement authorities have moved swiftly against organized
efforts to make pot available to medical patients.

Fulton County, Georgia, Superior Court Judge Bensonetta Tipton Lane
ruled in favor of Michael T. Murphy, who was suing his ex-lover
Darrell "Bill" Lansden in a business dispute concerning two gyms
patronized primarily by gay men that Murphy had purchased from
Lansden.  According to an account in the _Atlanta Journal_ (May 7),
Lansden was found to have harassed Murphy and improperly revealed
Murphy's HIV-status to a third party in an attempt to regain
control of the popular gyms.  Lane awarded $26,000 in damages to
Murphy, of which $3,000 was for infliction of emotional distress
and $7,000 as punitive damages.

Nushawn Williams, the HIV-infected man whose sexual activities in
Western New York allegedly led to the infection of numerous young
women, was indicted May 20 by a Chautauqua County grand jury on two
counts of second-degree statutory rape in connection with his
sexual exploits.  Williams is already being prosecuted in New York
City, but the Chautauqua County indictment was made to ensure that
he wouldn't be released on any technicality from the charges
pending in New York City.  _Buffalo News_, May 21.

A jury in Spokane County, Washington, Superior Court, acquitted
Larry D. Mullins, an HIV+ man, of second-degree assault for having
unprotected sex with a Spokane woman.  The woman testified that
Mullins told her he had no sexually-transmitted diseases before
they had sex, when he declined her suggestion to use a condom, and
that she learned about his HIV-status at a later date.  The woman
has repeatedly tested negative since the incident.  Mullins' fiance
testified that he was diagnosed with the HIV two years ago, and the
alleged incident took place one year ago.  Mullins's attorney
argued to the jury that the state had failed to present any
evidence that Mullins intended to harm the complainant, and she
apparently was not harmed.  After voting to acquit, a juror told
local reporters that the jury would not convict a man who didn't
intend to harm anyone.  _Spokesman Review_, May 13.  A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES:

Bartlett, Peter, _Silence and Sodomy: The Creation of Homosexual
Identity in Law_, 61 Modern L. Rev. (UK) 102 (January 1998) (review
essay).

Bennett-Alexander, Dawn D., _Same-Gender Sexual Harassment: The
Supreme Court Allows Coverage Under Title VII_, 49 Lab. L. J. 927
(April 1998).

Bix, Brian, _Consent, Sado-Masochism and the English Common Law_,
17 Quinnipiac L. Rev. 157 (Summer 1997).

Chabora, Paige E., _Congress' Power Under the Full Faith and Credit
Clause and the Defense of Marriage Act of 1996_, 76 Nebraska L.
Rev. 604 (1997).

Chamallas, Martha, _The Architecture of Bias: Deep Structures in
Tort Law_, 146 U. Pa. L. Rev. 463 (Jan. 1998).

Chester, Ronald, _To Be, Be, Be. . . Not Just to Be: Legal and
Social Implications of Cloning for Human Reproduction_, 49 Fla. L.
Rev. 303 (April 1997).

Delgado, Richard, _Are Hate-Speech Rules Constitutional Heresy? A
Reply to Steven Gey_, 146 U. Pa. L. Rev. 865 (March 1998).

Epstein, Richard A., _Externalities Everywhere?: Morals and the
Police Power_, 21 Harv. J. L. & Pub. Pol. 61 (Fall 1997).

Eskridge, William N., Jr., _Law and the Construction of the Closet:
American Regulation of Same-Sex Intimacy, 1880-1946_, 82 Iowa L.
Rev. 1007 (May 1997).

Grattet, Ryken, Valerie Jenness, and Theodore R. Curry, _The
Homogenization and Differentiation of Hate Crime Law in the United
States, 1978 to 1995: Innovation and Diffusion in the
Criminalization of Bigotry_, 63 Am. Sociological Rev. 286 (April
1998).

Hall, Jeffrey L., _Coming Out in West Virginia: Child Custody and
Visitation Disputes Involving Gay or Lesbian Parents_, 100 W. Va.
L. Rev. 107 (Fall 1997).

Henaghan, Mark, _Same-Sex Marriages in the Court of Appeal_, New
Zealand L. J., January 1998, p.40.

Katz, Katheryn D., _The Clonal Child: Procreative Liberty and
Asexual Reproduction_, 8 Albany L. J. of Sci. & Tech. 1 (1997).

Kende, Mark S., _The Supreme Court's Approach to the First
Amendment in Cyberspace: Free Speech as Technology's Hand-Maiden_,
14 Const. Commentary 465 (Winter 1997).

Kirk, Delaney J., and Maria M. Clapham, _Is It Just `Men Behaving
Badly' or Sexual Harassment? The Supreme Court Ruling on Same-Sex
Harassment_, 49 Lab. L. J. 954 (April 1998).

Koppelman, Andrew, _Same-Sex Marriage, Choice of Law, and Public
Policy_, 76 Texas L. Rev. 921 (April 1998).

Lee, Jennifer J., _The Internet and First Amendment Values:_ Reno
v. ACLU_ and the Democratization of Speech in the Marketplace of
Ideas_, 22 Columbia-VLA J. L. & Arts 61 (1997).

Loux, Andrea, _Idols and Icons: Catharine Mackinnon and Freedom of
Expression in North America_, 6 Feminist Legal Studies 85 (1998).

McClain, Linda C., _Deliberative Democracy, Overlapping Consensus,
and Same-Sex Marriage_, 66 Fordham L. Rev. 1241 (March 1998).

Neu, Jerome, _Sexual Identity and Sexual Justice_, 108 Ethics 586
(April 1998) (review essay).

O'Callaghan, Jerome, _Censorship of Indecency in Ireland: A View
From Abroad_, 16 Cardozo Arts & Ent. L. J. 53 (1998).

Pellicciotti, Joseph M., _The Constitutional Guarantee of Equal
Protection in Canada and the United States: A Comparative Analysis
of the Standards for Determining the Validity of Governmental
Action_, 5 Tulsa J. Comp. & Int'l L. 1 (Fall 1997).

Perry, Sandra J., and Ross L. Fink, _Resolving the Legality of
Same-Sex Sexual Harassment: The Case of_ Oncale v. Sundowner
Offshore Services, Inc., 49 Lab. L. J. 949 (April 1998).

Posner, Richard A., _Against Constitutional Theory_, 73 N.Y.U. L.
Rev. 1 (April 1998) (Madison Lecture - discusses theoretical
shortcomings of _Romer v. Evans_).

Rao, Radhika, _Reconceiving Privacy: Relationships and Reproductive
Technology_, 45 UCLA L. Rev. 1077 (April 1998).

Rasmussen, Eric, _Of Sex and Drugs, and Rock'n'Roll: Does Law and
Economics Support Social Regulation?_, 21 Harv. J. L. & Pub. Pol.
71 (Fall 1997).

Richardson, Janice, _Beyond Equality and Difference: Sexual
Difference in the Work of Adriana Cavarero_, 6 Feminist Legal
Studies 105 (1998).

Robinson, Robert K., Brian J. Reithel, and Geralyn McClure
Franklin, _Same Sex Sexual Harassment: The Implications of_ Oncale
v. Sundowner Offshore Services, 49 Lab. L. J. 941 (April 1998).

Safranek, John P., and Stephen J. Safranek, _Can the Right to
Autonomy be Resuscitated After_ Glucksberg_?_, 69 U. Colo. L. Rev.
731 (1998) (re physician-assisted suicide).

Schultz, Vicki, _Reconceptualizing Sexual Harassment_, 107 Yale L.
J. 1683 (April 1998).

Strasser, Mark, _Constitutional Limitations and_ Baehr_
Possibilities: On Retroactive Legislation, Reasonable Expectations,
and Manifest Injustice_, 29 Rutgers L. Rev. 271 (Winter 1998).

Winslade, William, T. Howard Stone, Michele Smith-Bell, and Denise
M. Webb, _Castrating Pedophiles Convicted of Sex Offenses Against
Children: New Treatment or Old Punishment?_, 51 SMU L. Rev. 349
(Jan-Feb 1998).

_Student Notes & Comments:_

Kabat, Alan R., _Scarlet Letter Sex Offender Databases and
Community Notification: Sacrificing Personal Privacy for a Symbol's
Sake_, 35 Amer. Crim. L. Rev. 333 (Winter 1998).

Kanotz, Michael J., _For Better of For Worse: A Critical Analysis
of Florida's Defense of Marriage Act_, 25 Florida St. U. L. Rev.
439 (Winter 1998).

Kramer, Elizabeth J., _When Men Are Victims: Applying Rape Shield
Laws to Male Same-Sex Rape_, 73 N.Y.U. L. Rev. 293 (April 1998).

Maroney, Terry A., _The Struggle Against Hate Crime: Movement at a
Crossroads_, 72 N.Y.U. L. Rev. 564 (May 1998).

Rappaport, Kim L., _In the Wake of_ Reno v. ACLU_: The Continued
Struggle in Western Constitutional Democracies with Internet
Censorship and Freedom of Speech Online_, 13 Amer. U. Int'l L. Rev.
765 (1998).

Snodgrass, Gwendolyn L, _Creating Family Without Marriage: The
Advantages and Disadvantages of Adult Adoption Among Gay and
Lesbian Partners_, 36 Brandeis J. Fam. L. 75 (Winter 1997-98).

Wells, Joanna, _Community Notification Provisions for Sex
Offenders: Not Punishment for Ex Post Facto and Double Jeopardy
Purposes - W.P. v. Poritz, 931 F.Supp. 1199 (D.N.J. 1996)_, 22 So.
Ill. U. L. J. 243 (Fall 1997).

_Symposia:_

_Physician-Assisted Suicide: Facing Death After_ Glucksberg_ and_
Quill, 82 Minn. L. Rev. No. 4 (April 1998) (articles by Susan M.
Wolf, Yale Kamisar, Kathryn L. Tucker, Howard Brody, Robert A.
Burt, Ezekiel J. Emanuel, Patricia A. King and Leslie E. Wolf, and
Sylvia A. Law). * * * _Michigan State Medical Society Mackinac
Island Conference on Bioethics: A Deliberation on Ethics in
Medicine_, 75 U. Detroit Mercy L. Rev. No. 3 (1998) (includes
extensive discussion of physician-assisted suicide).

AIDS & RELATED LEGAL ISSUES:

Diller, Matthew, _Dissonant Disability Programs: The Tensions
Between the Americans With Disabilities Act and Federal Disability
Benefit Programs_, 76 Texas L. Rev. 1003 (April 1998).

Fidler, David P., _The Globalization of Public Health: Emerging
Infectious Diseases and International Relations_, 5 Indiana J.
Global Leg. Studies 11 (Fall 1997).

Gallagher-Mackay, Kelly, _Routine Offering of HIV Tests to Pregnant
Women: Foetal Supremacy, Medical Authority, and Invisible Effects
on Women_, 9 Canadian J. of Women & L. 336 (1997).

Gostin, Lawrence O. & David W. Webber, _HIV Infection and AIDS in
the Public Health and Health Care Systems: The Role of Law and
Litigation_, 279 JAMA 1108 (April 8, 1998).

Jaffe, Michael D., and Joseph D. Nohavicka, _The Application of the
Disabilities Act to the Practice of Insurer Underwriting_, NYLJ,
May 28, 1998, p.1, col.1 (from the perspective of insurance
industry counsel - you guess their position).

_Student Notes & Comments:_

Anderson, Sean, _Individual Privacy Interests and the "Special
Needs" Analysis for Involuntary Drug and HIV Testing_, 86 Calif. L.
Rev. 119 (Jan. 1998).

Comment, _The Constitutional Issues Presented by the Communications
Decency Act's Application to HIV/AIDS Information on the Internet_,
8 Albany L. J. of Sci. & Tech. 195 (1997).

Daley, Michele L., Barrett v. Danbury Hospital_--The Connecticut
Courts Take Their First Look at a Claim for Negligent Infliction of
Emotional Distress in an "AIDS Phobia" Case_, 17 Quinnipiac L. Rev.
261 (Summer 1997).

Hansell, Jordan B., _Is HIV "Extraordinary"?_, 96 Mich. L. Rev.
1095 (Feb. 1998).

Knapp, Eric J., _Tort Law -- Turning Blood Into Whine: "Fear of
AIDS" as a Cognizable Cause of Action in New Mexico --_ Madrid v.
Lincoln County Medical Center, 28 N. Mex. L. Rev. 165 (Winter
1998).

Lagitch, Kellie E., _Mandatory HIV Testing: An Orwellian
Proposition_, 72 St. John's L. Rev. 103 (Winter 1998).

Leon, Jorge M., _Two Hats, One Head: Reconciling Disability
Benefits and the Americans With Disabilities Act of 1990_, 1997 U.
Ill. L. Rev. 1139.

Walker, Rebecca, _Governing Physician-Associated Risk Disclosure by
Adopting the ADA "Direct Threat" Approach: Doctors, Pack Up Your
Stethoscopes and Get Out Your Checkbooks_, 1997 U. Ill. L. Rev.
1199.

EDITOR'S NOTE:

_Law Notes_ now goes to its summer publication schedule.  The
Summer issue will be published in mid-July.  * * *  All points of
view expressed in _Lesbian/Gay Law Notes_ are those of identified
writers or the Editor, 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.