LESBIAN/GAY LAW NOTES
ISSN 8755-9021 Summer 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.

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SUPREME COURT RULES 5-4 THAT "ASYMPTOMATIC" HIV-INFECTION MAY BE
COVERED AS A DISABILITY BY ADA

A majority of the U.S. Supreme Court ruled in _Bragdon v. Abbott_,
1998 WL 332958 (June 25), that asymptomatic HIV infection can be
covered as a disability under the Americans With Disabilities Act,
but vacated and remanded a decision by the 1st Circuit for further
proceedings on the issue of whether an HIV-infected dental patient
would present a "direct threat" of injury to a dentist, as that
term is defined in the ADA.  This was the first decision by the
Supreme Court to undertake a substantive interpretation of the ADA,
and also the first decision by the Court directly to address legal
questions raised by the AIDS epidemic.  

Justice Anthony M. Kennedy wrote for the Court, with concurring
opinions by Justices John Paul Stevens (joined by Justice Stephen
Breyer) and Ruth Bader Ginsburg.  Justice David Souter was the
fifth member of the majority.  Chief Justice William Rehnquist
dissented, joined by Justices Antonin Scalia, Clarence Thomas and,
in part, Sandra Day O'Connor, who also wrote a separate brief
dissent.

The case arose in September 1994 when Dr. Randon Bragdon declined
to fill a cavity for Sidney Abbott, who had disclosed her HIV+
status, in his Bangor, Maine, dental office.  Bragdon maintained
that his office did not have sufficient infection control capacity
to deal with an HIV+ patient, and offered to fill the cavity in a
hospital dental clinic setting instead.  Abbott rejected this offer
and sued under Title III of the ADA, alleging discrimination in the
provision of public accommodations.  In a deposition, Abbott stated
that upon learning her HIV status she had decided not to have
children, out of concern that she might infect her sexual partner,
pass the infection to her child, and be unable to raise a child
should she progress to symptomatic AIDS.  Abbott also stated that
she was not presently limited in any of her other life activities
by her HIV-infection.  

Under the ADA, an individual with a disability is defined, inter
alia, as a person who has a "physical or mental impairment" that
"substantially limits a major life activity" of that person.  There
was little dispute that HIV infection is a physical impairment, but
Bragdon argued that Abbott, who did not have symptomatic AIDS, was
not substantially limited in a major life activity.  Abbott argued
that reproduction is a major life activity, and that her HIV
infection imposes a substantial limitation on her ability to engage
in such activity.  Bragdon's rejoinder was that reproduction is not
a major life activity, and even if it were, that the possibility of
transmitting HIV to a sexual partner or child or of being unable to
complete the process of raising the child did not constitute
substantial limitations, since they did not actually prevent Abbott
from becoming pregnant and bearing a child.

The ADA also provides that a person with a disability may be denied
services if providing the services would present a "direct threat"
to the health or safety of others.  The statute defines "direct
threat" as a "significant risk. . . that cannot be eliminated by a
modification of policies, practices, or procedures or by the
provision of auxiliary aids or services."  Abbott argued that the
risk to Dr. Bragdon in filling her cavity was so slight as to be
insignificant, particularly if Bragdon followed the guidelines
issued by the Centers for Disease Control and Prevention (which
have been given the force of law through their adoption by the
Occupational Safety and Health Administration as safety standards
for dental offices).  Bragdon countered that in light of the severe
consequences should HIV be transmitted, even the slight possibility
that transmission might take place when the guidelines are being
followed are sufficient to present a "significant risk" of
transmission, referring to the analysis of numerous lower federal
courts that have ruled against discrimination claims by HIV+ health
care workers based on their assessment of the risk of HIV
transmission from health care workers to patients.

Granting summary judgment in favor of Abbott, the lower courts
resolved both of these issues against Bragdon.  The Supreme Court
affirmed as to the first issue -- whether asymptomatic HIV-
infection is a disability -- by a 5-4 vote, but was more divided
over the "direct threat" issue.  Seven members of the Court (three
in the majority on the first issue, and four in the dissent on the
first issue) concluded that the case should be remanded to the 1st
Circuit for further proceedings, although those who were members of
the majority on the first issue had a different view from the
dissenters as to the standard to be employed by the lower courts in
resolving the question.  Two members of the majority, Justices
Stevens and Breyer, would have affirmed the lower courts outright
on the second issue.

Justice Kennedy's opinion on the first issue presents a careful,
step-by-step analysis of each part of the statutory definition. 
First, noting the impact of HIV infection on the hemic and
lymphatic systems, Kennedy concluded that HIV infection is a
physical impairment.  Kennedy provided a detailed summary of
current knowledge about the natural history of HIV infection in
humans that is remarkable for a court opinion.  In a passage that
directly contradicts the holdings of several of the circuit courts
of appeals, Kennedy concluded: "In light of the immediacy with
which the virus begins to damage the infected person's white blood
cells and the severity of the disease, we hold that it is an
impairment from the moment of infection. . .  HIV infection must be
regarded as a physiological disorder with a constant and
detrimental effect on the infected person's hemic and lymphatic
systems from the moment of infection.  HIV infection satisfies the
statutory and regulatory definition of a physical impairment during
every stage of the disease."  Indeed, Kennedy suggested that the
term "asymptomatic" cannot properly be applied to HIV infection at
any stage.

The next issue is whether the impairment "affects a major life
activity."  Abbott was argued that HIV infection affected her
ability to reproduce, which she contended is a major life activity. 
Because the Court is constitutionally limited to deciding actual
cases, the meticulously cautious Justice Kennedy would not be
pulled into the more general question of whether HIV infection is
a per se disability, but rather focused this section of the opinion
on whether the life activity identified by Abbott sufficed to meet
the statutory definition.  However, he noted: "Given the pervasive,
and invariably fatal, course of the disease, its effect on major
life activities of many sorts might have been relevant to our
inquiry.  Respondent and a number of amici make arguments about
HIV's profound impact on almost every phase of the infected
person's life.  In light of these submissions, it may seem
legalistic to circumscribe our discussion to the activity of
reproduction."  But because the lower courts had dealt solely with
reproduction, Kennedy said, the Court would follow its practice of
speaking only to the issues properly raised on appeal.

As to that, Kennedy said, the majority of the Court had "little
difficulty" in concluding that reproduction is a major life
activity, noting with approval the 1st Circuit's construction of
"major" as denoting "comparative importance" and "significance." 
"Reproduction and the sexual dynamics surrounding it," wrote
Kennedy, "are central to the life process itself."  Kennedy went on
to reject Bragdon's argument, embraced in the dissents, that
Congress intended to focus only on those life activities that had
a "public, economic or daily dimension."

Kennedy then considered whether HIV's effect on reproduction was
such as to constitute a substantial limitation on that activity. 
The Court found that the impairment was substantial in two ways:
the risk of transmitting HIV to a sexual partner, and the risk of
transmitting HIV to a child during gestation and childbirth.  The
Court rejected the contention that because an HIV+ woman was
physically able to conceive a child, her reproductive ability was
not substantially limited.  "The Act addresses substantial
limitations on major life activities, not utter inabilities,"
Kennedy insisted.  "Conception and childbirth are not impossible
for an HIV victim but, without doubt, are dangerous to the public
health.  This meets the definition of a substantial limitation. 
The decision to reproduce carries economic and legal consequences
as well.  There are added costs for antiretroviral therapy,
supplemental insurance, and long-term health care for the child who
must be examined and, tragic to think, treated for the infection. 
The laws of some States, moreover, forbid persons infected with HIV
from having sex with others, regardless of consent."

Kennedy rejected the argument that refraining from reproduction due
to HIV infection was merely a matter of personal choice, and
asserted that "when significant limitations result from the
impairment, the definition is met even if the difficulties are not
insurmountable."  Concluding that there was no triable issue of
fact remaining on this issue, a majority of the Court held that
Abbott had established her coverage as an individual with a
disability, and sustained the lower courts' grant of summary
judgment on this issue.

In his dissent, Chief Justice Rehnquist revived the arguments
accepted by some of the circuit courts that so-called
"asymptomatic" HIV infection does not limit a person's daily life
activities and thus cannot constitute a disability, even alluded
approvingly to some lower court decision that hold that people with
rather serious medical conditions were not protected by the ADA
because there were medications that could alleviate their physical
symptoms.  (Although the majority opinion did not directly address
this point, its very silence on the issue, in light of the flood of
amicus briefs on both sides of the medical questions, might
implicitly suggest a lack of sympathy for this argument.  Indeed,
the notion that the existence of medical remediation of symptoms
eliminates the disability contradicts the logical basis for
Kennedy's conclusion that "asymptomatic" HIV infection is a
disability.)

There was some speculation after the opinion was announced that the
Court's narrow treatment of the disability issue left open the
question of whether an HIV+ gay man who had never expressed an
interest in having children, or an HIV+ individual who was
otherwise incapable of reproductive activity (e.g., a person who
had been surgically sterilized prior to learning of their HIV
status), would be protected by the ADA.  On this point, Kennedy's
dicta, reinforced by a short concurring opinion in which Justice
Ginsburg enumerated the array of activities affected by HIV
infection, suggested that the lower courts should recognize
virtually all persons with HIV infection as being covered under the
statute.  Although the Court noted that Abbott stated her decision
to refrain from having children, the opinion did not seem to rest
heavily on that point.  Also, the analytical method Kennedy
followed suggested that a majority of the Court was generally
receptive to a broad construction of the definition of disability.

And if there were any doubts about the broader effect of the
ruling, Kennedy added two points that suggested such a broader
effect.  First, he noted that agencies and courts had construed the
Rehabilitation Act's relevant provisions to apply to HIV infection,
and observed that Congress had expressly provided that the ADA
should be construed to be at least as protective as the earlier
statute.  Second, he noted the broad reading that regulatory
agencies have given to the definition of disability, emphasizing
the deference that the Court normally pays to such interpretations. 

On the issue of "direct threat," Kennedy was hesitant to render a
final decision.  He noted that the relevant statutory language
stemmed from the Court's prior decision in _School Board v.
Arline_, 480 U.S. 273 (1987), and Congressional reaction to that
decision embodied in amendments to the Rehabilitation Act, which
were then carried forward using the same language and concepts in
the ADA.  "The existence, or nonexistence, of a significant risk
must be determined from the standpoint of the person who refuses
the treatment or accommodation, and the risk assessment must be
based on medical or other objective evidence," he wrote. 
Significantly, Kennedy rejected Dr. Bragdon's argument that if he
had a good faith belief that the risk was significant, he should be
excused from treating Abbott.  Kennedy asserted that "petitioner
receives no special deference simply because he is a health care
professional."  Instead, Kennedy said that the judgment should be
based on an objective assessment of scientific information, and as
to that, "the views of public health authorities, such as the U.S.
Public Health Service, CDC, and the National Institutes of Health,
are of special weight and authority. . .  The views of these
organizations are not conclusive, however.  A health care
professional who disagrees with the prevailing medical consensus
may refute it by citing a credible scientific basis for deviating
from the accepted norm."

However, having reviewed the record, Kennedy was not satisfied that
the 1st Circuit's holding was necessarily supported by the summary
of the evidence found there.  In particular, Kennedy was concerned
that the circuit court may have placed too much weight on 1993 CDC
Guidelines that did not contain an express risk assessment, and on
a 1991 American Dental Association statement that, Kennedy
speculated, may have had more to do with notions of professional
ethical obligation than with scientific risk assessment.  Kennedy
acknowledged that there was evidence in the record of statements by
public health officials that it was safe for dentists to treat HIV+
patients, but noted that the timing of those statements was not
clear.

In remanding the case, Kennedy suggested that the 1st Circuit might
well, on the basis of the record, reaffirm its earlier decision,
but that it was necessary for the lower court to conduct a
searching review of the record, and if need be remand for further
hearings, to make sure it had relevant evidence on the state of
knowledge as of September 1994 when Dr. Bragdon refused his
services to Abbott.

Justice Stevens, joined by Justice Breyer, agreed with Kennedy's
discussion of the legal standard, but felt that the 1st Circuit's
decision on this issue was sufficiently grounded in the record to
justify affirmance.  However, concerned that a remand by seven
members of the Court who were split 3-4 on the appropriate standard
would create confusion (and, Stevens left unspoken, might even
suggest that Chief Justice Rehnquist's dissent was speaking for the
Court as a "plurality opinion" on this point), Stevens and Breyer
joined the Court's decision to remand on the basis of Justice
Kennedy's legal analysis.

In dissent, Rehnquist argued that no special weight should be given
to the views of public health officials in deciding whether a
health care worker was justified in refusing services due to
concern over the health or safety of himself or his patients. 
Rehnquist asserted that Bragdon had presented sufficient evidence
to avoid summary judgment on the "direct threat" issue, by showing
that as of September 1994 the CDC was investigating seven instances
of possible transmission of HIV from patients to dental workers. 
"One need only demonstrate `risk,' not certainty of infection,"
argued Rehnquist.  "Given the `severity of the risk' involved here,
i.e., near certain death, and the fact that no public health
authority had outlined a protocol for eliminating this risk in the
context of routine dental treatment, it seems likely that
petitioner can establish that it was objectively reasonable for him
to conclude that treating respondent in his office posed a `direct
threat' to his safety."  In this quotation, Rehnquist exactly
mirrored the reasoning of several lower courts that have refused to
protect HIV+ health care workers from employment discrimination
under the Rehabilitation Act and the ADA.

Rehnquist also noted the evidence that as of that time there were
42 documented cases of HIV transmission from patients to health
care workers other than dentists, as bearing the reasonableness of
Bragdon's objections to treating Abbott in his office.

Thus, although the Court's decision establishes, by majority vote,
that HIV+ women of childbearing capacity are covered by the ADA,
and that most probably so is everybody else who suffers HIV
infection, regardless of symptomatic status, the Court did not
ultimately decide the important question whether health care
workers have an obligation under the ADA to perform invasive
procedures that may involve blood exposure upon HIV+ patients. 
Justice Kennedy's discussion of this issue strongly suggests, in
light of current information and more recent statements by the CDC
and other public health agencies, that the answer to that question
today should be "yes," but more litigation will be necessary to
establish the point.  The question is important not only for
determining the right to treatment of HIV+ patients, but also bears
on the degree of protection the ADA might afford to HIV-infected
health care workers.

Abbott's case was argued before the Supreme Court by Bennett Klein,
a staff attorney specializing in AIDS law at Gay and Lesbian
Advocates & Defenders, a Boston-based public interest law firm. 
Numerous amicus briefs were filed in support of Abbott's position,
some of which were cited and expressly relied upon by the Court,
particularly as to the scientific grounds for the disability
decision.  A.S.L.

SUPREME COURT SUSTAINS CONSTITUTIONALITY OF DECENCY & RESPECT
"CONSIDERATION" FOR ARTS ENDOWMENT GRANTS

Ruling on a constitutional challenge brought by four performance
artists, three of whom are openly gay, the Supreme Court ruled 8-1
on June 25 that the government could require the National Endowment
for the Arts (NEA) to take "into consideration general standards of
decency and respect for the diverse beliefs and values of the
American public" when making grants.  _National Endowment for the
Arts v. Finley_, 1998 WL 332991.  However, the ultimate impact of
the decision was clouded by Justice Sandra Day O'Connor's
construction of the challenged provision, 20 U.S.C. section
954(d)(1), in the opinion for the Court, which was sharply
criticized in a concurring opinion by Justice Antonin Scalia. 
Justice David Souter was the sole dissenter.

The challenged provision was enacted as part of the NEA's
appropriations for fiscal year 1990, in reaction to a public uproar
over two artistic projects in 1989 that had been funded, at least
in part, through NEA grants: an exhibition of photographs by Robert
Mapplethorpe, and a conceptual art work by Andres Serrano
consisting of a photograph of a crucifix immersed in urine.  The
provision was included in the appropriations bill as a compromise
to avert the total defunding of the NEA or more harshly worded
restrictions that were under consideration.  The bill also reduced
the NEA's funding for the fiscal year by the exact amount of the
grants that had supported the Mapplethorpe show and the Serrano
photograph.

The four performance artists, who were already suing as a result of
being denied grants despite the positive recommendations of the
agency's review panel, amended their complaints to argue that sec.
954(d)(1) violates the First Amendment as a vague, content-based
regulation of speech.  The agency settled their individual claims
by awarding them grants, but the issue of the constitutionality of
the provision was preserved as a live issue because these
individuals all intended to apply for future grants.  The district
court and the 9th Circuit both held the provision to be facially
unconstitutional as a vague, content-based regulation of speech.

Justice O'Connor concluded that, as the government had argued in
its appeal, the contested provision was merely a hortatory measure,
and did not forbid the NEA from awarding grants for art that might
be considered indecent or disrespectful of mainstream values. 
Furthermore, although the provision is imprecise and thus might, as
the challengers argued, lend itself to discriminatory application,
nonetheless O'Connor asserted that the process of selecting grant
recipients from among large numbers of applicants necessarily
involves a highly discretionary and subjective process.  The
problem is that all the factors the agency might consider in
awarding grants are subjective, and necessarily so; artistic
quality, no less than indecency or disrespectfulness, are matters
of interpretation as to which even expert review bodies might
disagree.  O'Connor concluded that one could not even run a program
such as the NEA arts grants without there being a large element of
subjective judgment.  Inasmuch as the Congressional directive was
merely to "consider" whether a proposal was indecent or
disrespectful, O'Connor did not see a direct harm.

Furthermore, since the four artists in question had actually
obtained their grants in a settlement of the other part of their
suit, this was not an "as applied" case, so there was no particular
instance of the provision being used to deny a grant before the
Court (as there could not be, because this litigation had resulted
in injunctions barring the NEA from implementing the challenged
provision).

This first part of the decision, standing alone, might lend
reassurance that the Court had whittled down the potential effect
of the provision to an innocuous bit of Congressional venting, had
not O'Connor proceeded in the next part of her opinion to observe
that "although the First Amendment certainly has application in the
subsidy context, we note that the Government may allocate
competitive funding according to criteria that would be
impermissible were direct regulation of speech or a criminal
penalty at stake," on the ground that "Congress has wide latitude
to set spending priorities."  Harking back to a notorious opinion
in which the Court upheld a Congressional ban on federal funding of
family planning clinics in which clients received any counseling
regarding the option of abortion, O'Connor observed that Congress
may "selectively fund a program to encourage certain activities it
believes to be in the public interest..."  In that case, the Court
had insisted that Congress was not engaging in viewpoint
discrimination but was merely choosing to fund one activity to the
exclusion of another.

Justice Scalia, dissenting for himself and Justice Thomas, began by
observing: "The operation was a success, but the patient died." 
Pointing to the first part of O'Connor's opinion, Scalia contended
that the Court had sustained the provision "by gutting it.  The
most avid congressional opponents of the provision could not have
asked for more."  To Scalia, it was clear that Congress did not
intend this provision to be merely hortatory, but rather to be an
obligatory factor for serious consideration in the grant awarding
process, and indeed a mandate for the agency to avoid awarding
grants for art that could be seen as indecent or disrespectful of
mainstream values.  

And for Scalia, his interpretation of the statute raised no First
Amendment problems, because in his view a governmental decision not
to award a grant to an artist does not constitute an "abridgment of
speech."  (Scalia, ever the textualist, chided the majority for
failing to engage with the language of the First Amendment in its
decision.)  The artist is free to solicit funding from other
sources and produce his or her artwork.  Congress has not levied a
fine or imposed a penalty based on the content of his or her work. 
There is no authority given by the statute for the government to
enjoin the production, exhibition or distribution of indecent or
disrespectful art.  Were the refusal to award a grant to be
construed as an "abridgment" of speech, then the NEA would become
"the mandatory patron of all art too indecent, too disrespectful,
or even too kitsch to attract private support."  But the NEA is not
the sole source of money for art in our society, which would be, in
Scalia's view, the only condition that would support an argument
that the provision is an abridgment of speech.

Indeed, Scalia argued that sec. 954(d)(1) "is no more
discriminatory, and no less constitutional, than virtually every
other piece of funding legislation enacted by Congress."  Scalia
cited numerous examples of federal programs that award money based
on the content of the program to be funded, including the NEA,
which is supposed to award grants for "artistic (as opposed to
scientific, or political, or theological) expression."  Ultimately,
Scalia disagreed with O'Connor's conclusion that the First
Amendment would have any applicability to an arts grant award
program.

In his dissenting opinion, Justice Souter agreed with Scalia that
the Court erred in its interpretation of the provision.  "The
decency and respect proviso mandates viewpoint-based decisions in
the disbursement of government subsidies," said Souter, and the
government had failed to meet the test for showing "why the statute
should be afforded an exemption from the fundamental rule of the
First Amendment that viewpoint discrimination in the exercise of
public authority over expressive activity is unconstitutional." 
Parting company with both Scalia and O'Connor, Souter argued that
the First Amendment is crucially relevant to the circumstances
under which the NEA awards grants for artistic expression. 
Certainly, the government can make content-based determinations
when it is funding a program to speak on behalf of the government,
or when it is purchasing artistic expression for its own use, but
when it is establishing a more general program to support artistic
expression, it may not "discriminate invidiously in its subsidies
in such a way as to aim at the suppression of ... ideas."  

Quoting from Congress's statement of purpose in founding the NEA,
Souter found that the purpose of the agency was "to encourage
expression of a diversity of views from private speakers."  "Given
this congressional choice to sustain freedom of expression," wrote
Souter, "the First Amendment forbids decisions based on viewpoint
popularity. . .  It may not use the NEA's purse to `suppres[s] ...
dangerous ideas'" (quoting an earlier decision by the Court).  

The ultimate impact of this decision is hard to predict because the
challenged standard, although enacted in 1990, has never been
directly implemented by the NEA due to this litigation.  The
meaning of the statute as determined by the Court majority is now
binding federal law.  If the statute is merely an innocuous
expression by Congress that the NEA should not make grants without
thinking about potential controversy on grounds of sexual content
or deviation from mainstream morality, as the Court appears to
hold, it would still likely produce some chill when it comes to
funding explicitly lesbian or gay art, especially when such art
might be construed as expressing views contrary to majoritarian
religious sentiment (e.g., Terrence McNally's play "Corpus
Christi," the subject of recent controversy based on reports that
it depicts a gay Christ-like figure who has sex with his followers,
and is being produced by a theater company that has received NEA
funding in the past). 

NEA's reaction to this controversy has been to cut out grants to
individual artists (thus avoiding the Serrano problem) and to
direct much of its reduced discretionary money towards general
support of mainstream cultural institutions with proven track
records of broad public support, such as symphony orchestras, large
museums, and the like, and to state arts agencies, thus avoiding
making direct funding decisions at the federal level.  This has the
effect of undermining one of the original goals of the NEA, as
Justice Souter pointed out: to encourage the new, the experimental,
the non-mainstream, precisely because mainstream art has readier
access to private money and state agencies are undoubtedly less
insulated from local politics than a federal agency would be). 
A.S.L.

LESBIAN/GAY LEGAL NEWS   

Alabama Supreme Court Rules Heterosexual Households Are Inherently
Superior for Child-Rearing; Removes Custody From Lesbian Mother

In an interesting case where divorced parents subsequently created
nearly exactly equivalent two-parent homes but for one being
homosexual, a lesbian mother again lost custody of her daughter to
her heterosexual ex-husband.  _J.B.F. v. J.M.F._, 1998 WL 321964
(Alabama Sup. Ct., June 19).  Since the court found no abuse of the
broad discretion the trial court has to determine custody, it let
stand the decision changing custody from mother to father, but not
without making its preference for heterosexual parenting known.

The parties were divorced in January 1993 after a 6 year marriage,
and the trial judge awarded custody of the parties' minor daughter
to the mother.  Shortly thereafter, the mother fell in love with
G.S., a woman, which eventually led to a committed relationship,
the exchanging of rings and identifying themselves as "life
partners."   In April 1993, mother and daughter moved in with G.S. 
The father knew of the relationship but claims he assumed that they
would not share a bedroom and would represent their relationship to
the child as "roommates."  The father subsequently remarried, and
the child regularly visited him and his new wife in their home. 
During these visits, he learned that his former wife and G.S. were
sharing a bedroom, that the child occasionally slept with them in
their bed, and that they kissed in the presence of the child.  The
child also once remarked that "girls could marry girls and boys
could marry boys."  The father immediately moved to modify the
divorce judgment in order to obtain custody. 

At trial, the evidence showed that the mother had created a nearly
identical family structure with G.S. as had the father and his new
wife.  Expert psychological testimony unanimously concluded that
the child has a loving relationship with both parents and their new
partners and that these relationships are a benefit to the child. 
The experts testified that the child's relationship with her mother
is excellent and well-bonded, and that the child exhibited no
pathology whatsoever.  Overall, there was a consensus that the
child was "pretty, well groomed, intelligent, energetic, healthy
and generally happy."  The only negative testimony was from the
father's witness, a "pastoral counselor," who testified that,
utilizing play therapy with anatomically correct dolls, he detected
possible issues of sexuality and anger with the child.  He also
stated that the father's suspicion of sexual abuse stemmed from the
mother being a lesbian.  However, he only had two interviews with
the child and none with the other parties.  The guardian ad litem
concurred with the mutually supportive psychological results, but
testified that studies exist that suggest that a child reared by
homosexual parents could suffer exclusion, isolation, a drop in
school grades and other problems.  Ultimately, the guardian ad
litem recommended that the father have custody.  The court agreed,
adding that the mother's visitation be restricted in that it not be
exercised "...in the presence of a person to whom she is not
related by blood or marriage," which was later modified to provide
that the restriction "shall not apply and be considered as being
applicable to the general public, casual, professional, platonic or
business relationships."

The Court of Civil Appeals reversed, asserting that hetero or
homosexual misconduct cannot, in itself, support a change of
custody unless the trial court finds that the misconduct has a
detrimental effect upon the child.  The appeals court found it did
not, returned custody to the mother, and the father appealed.

Writing for the Alabama Supreme Court, Justice Champ Lyons found
that there was no need to require the father to show that the
mother's relationship with the child was having a substantial
detrimental effect upon the child, but rather that he must
establish, based upon the changes in the parties' circumstances,
that a change in custody would materially promote the child's best
interest and that the positive good from a custody change would
more than offset the inherently disruptive effect of uprooting the
child, which was allegedly the standard originally applied by the
trial court.   

Lyons identified two distinct changes in the parties'
circumstances: (1) the father remarried and formed a two-parent
heterosexual home, and (2) the mother's discreet affair changed to
a two-parent openly homosexual home.   Notwithstanding the
unanimous supportive expert psychological testimony, the court held
that trial court did not abuse its discretion in granting custody
to the father, because the record contained evidence based upon
which the trial court could have concluded that it would be in the
child's best interest to be reared in a heterosexual home.  [The
only such evidence cited in the opinion is a wholly speculative law
review article by Brigham Young University Professor Lynn Wardle,
an ardent opponent of gay parenting and same-sex marriage, who
relies on no studies but specializes in critiquing the methodology
of the now-numerous studies that support qualifications of lesbian
and gay parents. - Editor]

In clearly biased and confusing extraneous dictum, the court went
beyond an objective finding that there was no abuse of discretion
by the trial court.  Lyons reveals bias, stating "the inestimable
developmental benefit of a loving home environment that is anchored
by a successful marriage is undisputed" and that the father could
now provide this benefit to his child, while the mother "is unable,
while choosing to conduct an open cohabitation with her lesbian
life partner, to provide this benefit."  Here, Lyons not only
selects a poor choice of words, but such an empty conclusion
conveniently avoids any analysis of the identical nature of the
marital relationships of both parties (although Lyons does concede
the marital-like status of the mother's relationship by using the
term "life partner") and the relevance of civilly vs. non-civilly
recognized adult marriages in custody determinations. Ironically,
earlier in the decision, Lyons itemizes the supportive expert
testimony of the mother and sums up her accomplishment of
"establish[ing] a two-parent home environment," presenting her
relationship with her partner "as the social and moral equivalent
to heterosexual marriage."  

As the final garnishment, Lyons takes the opportunity to cite an
earlier opinion declaring the mother's lifestyle "neither legal in
this state, nor moral in the eyes of most of its citizens,"
complete with a footnote to the Alabama State Code's sodomy law and
its commentary declaring the legislature's intent to "make all
homosexual conduct criminal."

The issue of the mother's visitation restriction was remanded since
the appellate court did not address that issue, having reversed the
trial court's decision.  _K. Jacob Ruppert_

Nebraska Supreme Court Vacates Sentence Imposed by Bible-Quoting
Judge

The Supreme Court of Nebraska has set aside the criminal sentence
which was imposed on a man who pled guilty to sexually assaulting
a minor, because the trial judge read into the record biblical
passages condemning homosexuality during sentencing.  _Nebraska v.
Pattno_, 254 Neb. 733, 1998 WL 325654 (June 5).  The court
concluded that the trial judge abused his discretion and violated
the defendant's due process rights when he announced his religious
views on homosexuality during the sentencing phase of a case
concerning pedophilia charges.

Twenty-five year old Aaron Pattno pled guilty to sexual assault of
a child after he was caught fondling a 13 year old boy.  Pattno and
M.B. first met through an internet chat room, and planned together
the overnight visit which was the setting for the sexual encounter.
According to the Supreme Court, e-mail which the police retrieved
from Pattno's home suggested that Pattno and M.B. shared mutual
affection during the several months that they knew one another. 
During sentencing, the trial judge read aloud passages form the
Bible condemning homosexuality as "shameless," "unnatural" and a
"dishonorable passion."  He then sentenced Pattno to the maximum
penalty permitted by statute: 20 months to 5 years imprisonment. 
There is no minimum sentence mandated under Nebraska law for this
offense.

Pattno argued on appeal that the sentence was motivated by the
judge's religious views, and that the judge therefore violated
various provisions of the Code of Judicial Conduct. The state
argued that the quoted passages were "justified commentary on the
heinousness of Pattno's crime."  The state also maintained that
since the sentence imposed was within the statutory guidelines for
the offense in question, it was valid.

The Supreme Court disagreed, ruling that the trial judge's conduct
violated Pattno's due process rights for two principal reasons. 
First, there are no laws in Nebraska criminalizing sex between two
consenting adult males.  Therefore, the Biblical passages
concerning homosexuality which the trial judge quoted were
irrelevant to the crime to which Pattno pled guilty.  Second, by
reciting and interpreting Biblical passages, the trial judge had
breached the separation between church and state.  

The Supreme Court established an "objective" test to determine
whether a judge is biased against a defendant: the test hinges on
whether a reasonable person familiar with the facts and
circumstances of the case would conclude that the judge was biased. 
Concluding that the test was met in this case, the court set aside
Pattno's sentence and remanded the case for resentencing by a
different judge. _Ian Chesir-Teran_

Arkansas Sodomy Challenge Survives First Round

Judge Collins Kilgore of the Pulaski County, Arkansas, Chancery
Court ruled on June 23 that the plaintiffs in _Picado v. Bryant_,
No. OT98-432, a constitutional challenge to the Arkansas sodomy
law, are entitled to a trial of their claims.  The court rejected
the state's argument that as none of the plaintiffs have been
prosecuted, and as the state does not routinely enforce the law
against consenting adults who keep their activities private, the
plaintiffs have not sustained a personal injury sufficient to have
standing to sue, the court accepted the argument by Lambda Legal
Defense Fund staff attorney Suzanne Goldberg that the impact of a
sodomy law on the lives of lesbians and gay men provides sufficient
injury to confer standing.  

The constitutional challenge rests on due process (privacy) and
equal protection claims under both the state and federal
constitutions.  In finding these claims justiciable, Judge Kilgore
specifically invoked recent appellate decisions in Tennessee,
_Campbell v. Sundquist_, 926 S.W.2d 250 (Tenn. App. 1996), and
Montana, _Gryczan v. State_, 942 P.2d 112 (Mont. 1997), in which
courts found declaratory judgment actions presenting constitutional
challenges to be justiciable under similar circumstances.

Kilgore next rejected the argument that plaintiffs would have an
adequate remedy at law if they would just patiently wait to be
prosecuted and then raised their constitutional claims as a
defense.  Kilgore found this argument contradictory, since on the
justiciability point the state argued that the plaintiffs had no
reasonable fear of prosecution.  More significantly, however, "to
accept Defendants' arguments, one would have to conclude that it is
acceptable for Plaintiffs to live and suffer the harms associated
with continuing threats of criminal prosecution under a
constitutionally suspect statute.  This Court believes it has
jurisdiction because in this case there is no adequate remedy at
law."  The court also rejected arguments that the individual named
plaintiffs could not be sued and that the state constitution
precluded the suit by disallowing lawsuits against the state in its
own courts.

The court's language suggests an understanding of the harms that
sodomy laws do, even when they are not directly enforced, and gives
hope of a favorable outcome on the merits, particularly when the
court refers to the challenged statute as "constitutionally
suspect."

Goldberg is joined as counsel in the case by Arkansas attorneys
David Ivers and Gary Sullivan.  A.S.L.

Alaska Supreme Court Denies Review in Same-Sex Marriage Case

The Alaska Supreme Court has refused a request by the state
government to review Superior Court Judge Peter Michalski's
February 1998 decision in a same-sex marriage case.  _Brause v.
Bureau of Vital Statistics_, 1998 WL 88743 (Alaska Super. Ct., Feb.
27).  In that decision, Michalski had rejected a motion by the
state to dismiss the lawsuit, finding that Jay Brause and Gene
Dugan, a gay Anchorage couple, had raised valid state
constitutional questions in their challenge to the state's refusal
to give them a marriage license.  Michalski concluded that the
right to pick a marital partner of either sex is a fundamental
right under the Alaska constitution.  This means that the state can
refuse to issue marriage licenses to same-sex couples only if it
can show a compelling state interest that can only be achieved by
categorically denying licenses to same-sex couples.

Ordinarily, the state Supreme Court's refusal to grant an
interlocutory appeal would mean that the case will go to trial. 
But there is a complicating factor: Alaska legislators have placed
a question on the general election ballot in November giving voters
an opportunity to amend the state constitution to declare that
marriage is limited to opposite-sex couples.  If the ballot
question is approved, the case may become moot. 

Alaska Assistant Attorney General John Gaguine told the _Anchorage
Daily News_ (June 6) that he may ask Michalski to delay the trial
until after the November election.  But such a request may not be
necessary, because in the ordinary course of things it would be
unlikely that the case could be litigated to a decision by November
3.  _Anchorage Daily News_, June 6. A.S.L.

Massachusetts High Court Green Lights Boston DP Benefits

In a 6-1 decision, the Massachusetts Supreme Judicial Court gave
the City of Boston a green light to provide domestic partner
benefits to its employees. _Opinions of the Justices to the House
of Representatives_, 427 Mass. 1211, 1998 WL 324482 (Jun. 15).  

The City of Boston, under pressure from activists to provide
domestic partner benefits to city employees filed a "home rule"
petition with the state legislature, essentially asking the
legislature to approve a proposed city ordinance that would provide
health insurance to domestic partners of city employees.  Notably,
several other municipalities in Massachusetts have provided
domestic partner benefits to their employees without seeking such
legislative approval.  The legislature in turn sought advice from
the court, asking whether the city ordinance granting domestic
partner benefits would run afoul of the state constitution, and
whether the state bill authorizing it was an improper delegation of
authority by the legislature to the city. 

The Supreme Judicial Court declined to answer the first question,
finding that it was authorized to offer guidance only in situations
where there is serious doubt about the legislature's power and
authority to act without violating the constitution.  Since the
first question essentially asked whether the City of Boston, not
the legislature, had the power to act, it was not within the scope
of the court's authority to answer the question.  

Regarding the second question, the court answered that the home
rule petition did not constitute an improper delegation of the
legislature's authority to the city.  Mindful of providing the city
"maximum elbow room" to solve its local problems, the court found
that the Legislature had not delegated fundamental policy
decisions, that the proposed act would provide adequate direction
to the city for its implementation, and that there were adequate
safeguards for any abuse of discretion delegated to the city.  In
addition, the court found the proposed legislation did not single
out any person for special privileges or advantages at the expense
of the rights of another.  The provision of insurance to a domestic
partner, the court reasoned, does no more to those who do not
receive the benefit than the provision of benefits to employee
dependents can be said to injure employees without dependents.  

Presumably, the ducks are now in a row for the Legislature to
approve Boston's home rule petition, and for the City of Boston to
join the numerous towns and cities in Massachusetts that already
provide such coverage.  New England's public interest law firm, Gay
& Lesbian Advocates & Defenders, submitted an amicus brief.  _Dirk
Williams_

N.Y. Appellate Division Reject's Surviving Partner's Wrongful Death
Claim

The New York Appellate Division, 1st Department, has ruled that a
gay surviving partner may not bring a wrongful death action against
the party whose alleged negligence caused the death of his partner. 
According to a report in the _New York Law Journal_ on July 10, a
four-judge panel split 3-1 in affirming N.Y. County Supreme Court
Justice Sheila Abdus-Salaam's dismissal of Donald Raum's wrongful
death claim against Restaurant Associates, Inc.  The court's
decision had not been published as of our deadline, so this report
is based on the _Law Journal_'s article.

Haig Herbert Kashian, then 54, allegedly contracted salmonella
poisoning after eating a box lunch prepared by the now-defunct
Brasserie restaurant on October 14, 1992, and died thereafter. 
Raum, Kashian's life partner for twenty years, was appointed
executor of the estate.  Raum sued for damages for Kashian's
conscious pain and suffering and wrongful death.  N.Y.'s Estates
Powers & Trusts Law, sec. 5-4.1, authorizes a surviving spouse to
maintain an action for wrongful death.  The appellate division
held, in an unsigned opinion, that the trial judge had correctly
ruled that a same-sex partner is not a legal spouse, and that the
legislature's failure to extend the right to sue to a non-marital
surviving partner did not discriminate on the basis of sexual
orientation, "in that unmarried couples living together, whether
heterosexual or homosexual, similarly lack the right to bring a
wrongful-death action, and, as such, the statute does not
discriminate against same-sex partners in spousal-type
relationships."

The opinion apparently developed into a debate between the majority
of the court and dissenting Justice Ernst Rosenberger, who argued
that the court should adopt a broad construction of "spouse,"
emulating the approach of the N.Y. Court of Appeals in _Braschi v.
Stahl Associates_, 74 N.Y.2d 201 (1989), in which that court
extended the definition of "family member" to include a surviving
gay life partner in a case concerning the right to succeed to a
rent-controlled leasehold.  

After noting that the relationship of Raum and Kashian bore all the
indicia of a family, Rosenberger argued: "It is both unfair and
unconstitutional to deny plaintiff the right to sue the person
responsible for the death of his life partner because he was not
married to the decedent, when the law prevented them from marrying. 
The legal status of the dependents' relationship to the decedent
does not affect their need for compensation and support, nor
diminish society's interest in preventing tortious behavior.  There
is thus no rational basis for excluding a class of injured
dependents from recovery, nor for granting a windfall to those who
negligently cause death, simply because the dependents did not have
a legally recognized relationship with the decedent."

But the majority observed that in _Braschi_, the court was dealing
with a statutory term that was not explicitly defined in the
statute, whereas the Estates, Powers & Trust Law defines the term
"spouse."  Further, the majority argued that _Braschi_ "was a
decision propelled by policy considerations not pertinent to the
present case."  The judges in the majority are Richard Wallach,
Israel Rubin, and Peter Tom.

Raum and the Kashian Estate are represented by attorneys Martin
Karlinsky, Tal Marnin and Jennifer Zuch of the firm of Camhy
Karlinsky & Stein.  A.S.L.

Alabama Appeals Court Refuses to Restrict Gay Father's Visitation
Rights

In <MJI>K.T.W.P. v. D.R.W._, 1998 WL 307936 (June 12), the Alabama
Court of Civil Appeals refused to rule that a non-custodial gay
parent should be restricted from having his life partner present in
the house during visitation with his child, upholding a trial court
decision.

K.T.W.P. (the mother) and D.R.W. (the father) were married in 1984,
had a daughter in 1988, separated in 1992, and divorced in 1993. 
They agreed to joint custody.  Primary physical custody was with
the mother, with the father having "standard visitation."  The
mother remarried in 1994.  The father went to live with his new
"sexual partner," a man. The father's "sexual preference" was found
to be a factor contributing to the divorce.

In 1996, the father filed a petition for contempt, alleging that
the mother had improperly denied visitation and failed to provide
medical insurance for the child.  He requested primary physical
custody.  The mother denied all the father's allegations, moving
for contempt for failure to pay child support and for certain
medical coverage.  She requested termination of the father's
visitation rights.

After a trial, the trial court denied both petitions for
modification, held both parties in contempt, ordered the father to
provide medical insurance, ordered the mother to communicate with
the father concerning visitation, and granted the father the right
to claim the tax exemption concerning the child.  Both parents were
restricted from engaging in sexual conduct with their respective
partners in the presence of the child, but the court refused to
place any further restriction on the father's visitation rights. 
The mother appealed.

The trial court found that when the mother first remarried, the
newlyweds spent their first six months sharing a room in the
stepfather's parent's house with the child.  According to the
stepfather, the child might observe sexual activity between the
adults.  In the father's house, on the other hand, the child always
had her own bedroom in the father's two-bedroom house; the father's
sexual partner slept in the other bedroom in the house and not with
the father. The father slept in the living room. 

The appeals court reversed the finding of contempt as it related to
the mother, and remanded to the trial court for factual findings to
support the contempt finding against her, but refused to reverse
the trial court's rulings concerning visitation rights.  The
appeals court stated that the mother's argument concerning
restriction of the father's visitation "is based squarely on her
disapproval of the father's homosexuality," that "although a trial
court can restrict heterosexual parents from having overnight
guests of the opposite sex during visitation, her conclusion that
a trial court should restrict homosexual parents from having
overnight guests of the same sex does not logically follow."  

After having heard the evidence, the trial court could have
restricted visitation to the father based upon the evidence before
it, and the appeals court probably would have sustained it, but
nothing in Alabama law required the court to adopt the mother's
position, based on the facts before it.  All contrary cases cited
by the mother involved situations where there was demonstrable
injury to the child from the manner in which it was being raised. 
The restriction of sexual conduct in the presence of the child was
deemed by the appellate court to offer sufficient protection of the
best interests of the child. 

Other issues in the appeal did not turn on sexual orientation. [It
will be interesting to see whether this decision is appealed, in
light of the Alabama Supreme Court's subsequent ruling in _J.B.F.
v. J.M.F._, reported above. -Editor] _Steven Kolodny_

Indiana Supreme Court Rejects Manslaughter Charge in Murder of Gay
Man

The Indiana Supreme Court ruled April 30 in _Gant v. State_, 694
N.E.2d 1125, that the Marion Superior Court did not abuse its
discretion by refusing to charge the jury on the lesser-included
defense of manslaughter in the prosecution of Telly Gant for the
murder of Anthony Alexander and the attempted murder of Gordon
Murrell, both gay men.

From the evidence as summarized in Justice Dickson's opinion for
the court, it appears that Gant and several other men were engaged
in conversation in an Indianapolis apartment building parking lot
on the evening of June 16, 1994, about homosexuality.  The men went
to the basement of the apartment building, where they engaged in
homosexuality, and then went upstairs to Murrell's apartment, where
they talked, consumed alcohol, and watched gay porno videos.  The
evening gradually wound down as men began to leave.  As he was
leaving the apartment, Gant stated to the two men leaving with him
that he wanted to "jump" Alexander.  He turned back into the
apartment and attacked Alexander with a knife.  Murrell, who had
stayed behind, attempted to defend Alexander and suffered stab
wounds as well.  Alexander subsequently died from his wounds.  Gant
emerged from the apartment carrying a bloody knife and with blood
on his clothing.  

At trial, Gant argued that he was heterosexual and that engaging in
homosexual activity was unusual conduct for him, generating anger
that, combined with subsequent alcohol consumption, led him to act
out of this anger toward the source of his humiliation and anger. 
However, the trial judge refused to charge the jury on
manslaughter.  

Upholding this refusal, Justice Dickson wrote: "We decline to
permit the defendant's own consensual actions to constitute
sufficient provocation.  Furthermore, we find the evidence of
suddenness to be lacking.  The defendant had engaged in homosexual
activity over the course of several hours.  While the defendant,
upon leaving the apartment, may have regretted his conduct, there
is an absence of appreciable evidence of sudden heat.  We decline
to find error in the trial court's refusal of the defendant's
tendered instruction..."  A.S.L.

Washington Appeals Court Discounts Claim of Homophobic Prejudice by
Jurors

In _Frye v. Jack_, 1998 WL 283055 (June 1), the Court of Appeals of
Washington, Division One, held that the jurors' comments about
Barbara Frye's sexual orientation during deliberations did not
justify granting Frye a new trial because the comments that
"inhered" in the verdict were inadmissible to impeach the verdict,
and those that did not inhere in the verdict did not rise to the
level of showing that juror bias affected the verdict.   

The case involved an automobile accident involving Barbara Frye and
Sandra Jack in June 1994.  Although the parties disputed who had
the right of way, Jack nevertheless hit Frye, knocking her off her
motor scooter, causing headaches, thumb and knee pain, which
"greatly diminished [Frye's] ability to work and enjoy her favorite
activities."  Frye's roommate, Annie Thoe, testified as to Frye's
condition prior to the accident.  During the trial, Frye and Thoe
revealed that they were co-owners of a house in which they lived,
worked at the same location, traveled together and shared the same
group of friends.

The jury ruled unanimously (12-0) in favor of Jack, but immediately
thereafter, one of the jurors telephoned the trial judge to express
her concern about comments made by several other jurors during 
deliberations, and tried to change her vote.  According to three
other jurors, the initial vote was 8-4 in favor of Jack.  As the
jury reconsidered, one juror questioned the "true" nature of the
relationship between Frye and Thoe, saying, "I wonder what their
relationship really is and if they're hiding that I wonder what
else they're hiding."  

Another juror then speculated that Frye and her "girlie" friends
had been drinking beer at dinner prior to Frye's accident, and that
Frye probably "blew through the stop sign" in order "to get home to
be with her `girlie friend' to do whatever it is that `girlie
friends' do to each other."  After considering these comments, the
jury voted again, this time 9-3 in favor of Jack.  Finally, the
three jurors (who had submitted affidavits to the judge about the
comments made during deliberations) changed their votes. Afterwards
the three jurors claimed they were not aware that a hung jury was
an option in a civil trial, even though the judge had instructed
them that ten votes were necessary for a verdict.  The trial judge
found that the comments of the two jurors speculating about Frye's
sexual orientation was inappropriate because there had been no
evidence submitted concerning the issue.  The trial judge ordered
a new trial, finding that the juror misconduct had prevented Frye
from receiving a fair and unbiased jury trial.  Jack appealed the
decision.

Reversing the trial court, Appeals Judge Coleman briefly discussed
the standard of review, noting that "[p]arties are entitled to a
fair but not necessarily perfect trial by a panel of impartial,
indifferent jurors."  Coleman then analyzed the conduct of the
jurors, noting that the first juror's comments questioning the
nature of the relationship between Frye and Thoe, and their
truthfulness in other matters did not reflect either pro- or anti-
homosexuality bias.  Instead, <!69>it was merely one juror's
evaluation of Frye's credibility that was based on perceived
truthfulness, not upon sexual orientation."  Judge Coleman then
considered the second juror's comments about "girlie friends," and
found that while it is "derogatory and suggestive of prejudice,"
those statements, "without more, do[] not support an inference that
the declarant or other jurors were unable to evaluate the evidence
fairly."  He noted the distinction between words that possibly
signify prejudice and those that provide evidence that the
declarant prejudged the issue due to bias.  The court asserted that
the comments about "what `girlie friends' do" were
indistinguishable from comments from a juror "with a disapproving
opinion on unmarried heterosexual couples opin[ing] that the
plaintiff did not stop at a stop sign because he or she was in a
hurry to get home to do whatever it is that `unmarried couples'
do."  

The court also characterized the comments as "inhering" in the
verdict, and therefore inadmissible to impeach the verdict.  Judge
Coleman asserted that "[t]he mental processes by which individual
jurors reached their respective conclusions, their motives in
arriving at their verdicts, the effect the evidence may have had
upon the jurors or the weight particular jurors may have given to
particular evidence, or the jurors' intentions and beliefs are all
factors inhering in the verdict itself, and averments concerning
them are inadmissible."  Judge Coleman summarily dismissed the two
jurors' comments about Frye's sexual orientation as "inher[ing] in
the verdict" and refused to "use[] the jurors' thought processes to
impeach the verdict."  

Apparently ignoring the risk of homophobia in the jury box, Judge 
Coleman insisted that "innumerable situations could be imagined
where an opinion is communicated about a particular group of
individuals that is not based upon evidence presented at trial. 
However, as long as the opinion does not affect the declarant's
ability to fairly judge the evidence, a new trial should not be
granted."  It is unclear whether the court's analysis was
influenced by the initial vote in favor of Jack; Judge Coleman
dismissed the jurors' confusion about the hung jury option with one
sentence. _Sharon McGowan_

N.Y. Appellate Division Rules Against Lesbian Co-Parent

The N.Y. State Appellate Division, 4th Dept., overturned a ruling
by an Onondaga Family Court Judge awarding temporary visitation of
a child to Diane T.O. after she and Lynda A.H., who had the child
by donor insemination, ended their long-term relationship.  _Matter
of Lynda A.H. and Diane T.O._, 1998 WL 307452 (June 10).  

After Lynda A.H. and Diane T.O. lived together for 17 years, they
decided to have a child.  They agreed that Lynda A.H. would be
inseminated, and she had a girl in September 1993.  The daughter
was given Diane T.O.'s last name as her middle name and Lynda
A.H.'s last name as her last name.  Lynda A.H. and Diane T.O.
jointly raised the child and contributed to her financial support.
She called Diane T.O. "omi" (for other mommy).  When the child was
3 1/2 years old, Lynda A.H. and Diane T.O. jointly petitioned the
Onondaga County Family Court to enable Diane T.O. to adopt the
child.  Seven months later the relationship ended, Lynda A.H. moved
out of the house with the girl, and she revoked her consent to the
adoption.  The court dismissed the adoption petition.  Diane T.O.
then filed for custody of, or visitation with, the child.

Justice Boehm, writing for the unanimous five-judge court, found
that Family Court Judge Hedges erred in not dismissing Diane T.O.'s
petition and in awarding temporary visitation to her.  The court
ruled that, when deciding between a "biological parent and a
nonparent, the biological parent has a superior right to custody of
a child."  "Surrender, abandonment, persisting neglect, unfitness
or other like extraordinary circumstances" would be necessary to
show that the biological parent had relinquished custody.  The
"nonparent," the court said, "has the burden of proving that
extraordinary circumstances exist" to overcome the biological
parent's "superior right" of custody.  Unless this burden is met,
the best interests of the child are not relevant for the court to
consider.  

The court found that granting temporary visitation to Diane T.O.
would "impermissibly impair [Lynda A.H.'s] right to custody and
control of the child" as the biological parent.  

The court rejected arguments by Diane T.O. and the Law Guardian
that a "pending motion to vacate the dismissal of the adoption
petition" gave Diane T.O. standing to seek visitation, finding that
these circumstances did not distinguish this case from the binding
New York precedent of _Matter of Alison D. v. Virginia M._, 572
N.E.2d 27 (N.Y. 1991), in which the Court of Appeals had found that
a lesbian co-parent did not have standing to seek visitation with
the child she had helped to conceive and raise.

The Appellate Justices also determined that Judge Hedges improperly
ordered Lynda A.H. and Diane T.O. to pay the legal fees and
expenses of the Law Guardian, finding that the fees should be paid
by the State.  _Daniel R Schaffer_

California Appeals Court Orders Trial on Sexual Orientation
Discrimination and Infliction of Emotional Distress Claims

Reversing a grant of summary judgment by the San Diego Superior
Court, the California Court of Appeal, 4th District, ruled July 2
that Daniel Kovatch, a gay former employee of California Casualty
Management Co., Inc., is entitled to a trial of his claim that he
was constructively discharged in violation of the state's public
policy banning sexual orientation discrimination, as well as a
claim for intentional infliction of emotional distress.  The ruling
gives a major boost to the potential efficacy of California's
sexual orientation discrimination law.  _Kovatch v. California
Casualty Management Co., Inc._, No. D025565 (Super. Ct. No. 682539)
(not officially reported).  

Kovatch was hired by CCMC to be a sales representative in October
1989.  He was promoted in 1992, and then promoted again in August
1993 when he was transferred to San Diego to be a sales supervisor,
reporting to Mr. Aldinger, the sales manager in that office.  

Kovatch alleges that during the three months he worked in San
Diego, he was targeted as gay by Aldinger, subjected to mounting
hostile environment harassment by Aldinger and others in the
office, and explicitly threatened with discharge by Aldinger in the
following terms on November 10, 1993: "Let me make something loud
and clear to you, Dan.  I don't like you.  You're a faggot, and
there is no place for faggots in this company.  And when Paul
[Rapp] and I meet with you tomorrow, you're fired."  Kovatch was so
shaken by this incident that he took sick leave, which he extended
several times on advice of his doctor.  

When Kovatch complained to the company's human resources department
about being harassed, his complaint was referred to Marianne Jones,
the company's employment relations manager.  Jones claimed that her
investigation did not corroborate Kovatch's allegations (i.e., the
employees in question all denied mistreating Kovatch).  She
ultimately offered him reassignment at a lower title and salary to
a different office in response to his statement that he would not
return to work for Aldinger (which she treated as his desire not to
work in the San Diego office).  Kovatch did not return from his
leave, and obtained a job with another insurance company.  He then
filed suit, alleging breach of contract, wrongful discharge in
violation of public policy, and intentional infliction of emotional
distress.

The employer moved for summary judgment, arguing that Kovatch was
an at-will employee who could be discharged at any time with or
without cause, that his employment was terminated because he failed
to return from leave, that the company took adequate steps to
investigate his complaints and to offer him suitable employment,
and that his emotional distress claim was barred by the workers
compensation law.  The trial judge granted the motion.

Writing for a unanimous three-judge panel, Judge Nares determined
that Kovatch was an at-will employee, so summary judgment was
properly granted on the breach of contract claim.  However, Nares
concluded that the trial court erred in granting the motion as to
the other claims.

As to the wrongful discharge claim, which is based on the
California Labor Code provision banning employment discrimination
based on sexual orientation, the court noted that it has previously
been held that the Labor Code provision may ground a claim of
wrongful discharge in violation of public policy.  In this case,
the burden is on Kovatch to show that he was constructively
discharged due to homophobic harassment.  Taking the allegations of
his complaint to be true, Nares found that Kovatch had sufficiently
alleged facts that a reasonable jury could find to constitute
hostile environment harassment severe enough to constitute
constructive discharge, a standard requiring the jury to conclude
that a reasonable person in Kovatch's position would have found the
workplace atmosphere "intolerable."  The trial court had restricted
its consideration to those incidents in which Kovatch alleged
specific homophobic statements, and had found them to be isolated
incidents rather than pervasive misconduct.  Judge Nares found that
Kovatch's allegations of a variety of slights and snubs, in
addition to the expressly homophobic statements, provided enough
basis for a factual contest requiring jury resolution.  (Perhaps
the detailed recitation of Kovatch's factual allegations are the
reason why the court has designated this opinion to be unpublished. 
Courts frequently shy away from publishing gay law opinions that
the judges would find uncomfortable to read, with unfortunate
consequences in the relative unavailability of those opinions for
later quotation and citation.)

Nares was dismissive of the company's argument that it had met its
burden to deal with Kovatch's complaints by investigating and
offering him an alternative position at lower title and pay.

On the emotional distress claim, Nares noted that California courts
have allowed emotional distress claims by employees who are
alleging sexual harassment, seeing both the wrongful discharge tort
and the emotional distress tort as falling outside negligence type
of claims that are normally held to be preempted by workers
compensation law.  As to the sufficiency of allegations to ground
an intentional infliction of emotional distress claim, Nares
commented that California courts have treated intentional sexual
harassment as "outrageous" conduct, and Kovatch's allegations of
his emotional distress, including the need for medical treatment,
provide an adequate basis for a jury question as to whether he
suffered severe emotional injury.

This decision, albeit designated not for official publication, is
significant on two grounds: It takes seriously the sort of sub rosa
anti-gay campaign to which employees may be subjected by homophobic
supervisors, and by allowing a claim of intentional infliction of
emotional distress (with attendant potential punitive damages), it
puts some additional teeth into the wrongful discharge cause of
action, thus making it more likely that gay employees will be able
to find counsel eager to take their cases on a contingency basis
and companies will be more likely to settle than to litigate.  In
addition, by reinforcing the availability of the wrongful discharge
tort action as an enforcement mechanism for the Labor Code sexual
orientation provision, it helps to overcome the rather limited
administrative enforcement available for sexual orientation
discrimination cases, and perhaps to give employers a stronger
incentive to stamp out sexual orientation discrimination in their
workplaces.

Kovatch is represented by Los Angeles attorney Nick De Biase, with
amicus assistance from Lambda Legal Defense Fund cooperating
attorney Jim Emery of Keker & Van Nest in San Francisco.  A.S.L.

Minnesota Appeals Court Rules That Calling Someone a Lesbian Is Not
Per Se Defamation

The Court of Appeals of Minnesota affirmed a summary judgment
ruling against a heterosexual woman who sued Hennepin County after
a county social worker falsely accused her of being a lesbian.  The
court held that "allegations of lesbianism" are not defamatory per
se under Minnesota law.  _Foley v. County of Hennepin_, 1998 WL
313546 (June 16).

Deborah Foley's two step-grandchildren were placed with her
voluntarily by her daughter in-law.  A social worker employed by
the Hennepin County Department of Children and Family Services was
assigned to provide services to the children and their mother.
According to Foley, the social worker met with the children's
mother and maternal grandparents and advised them that Foley was
unstable, interested in pornography and the occult, and was having
a lesbian relationship.  The social worker repeated these
allegations to Foley's therapist and even alleged during a custody
hearing that Foley had made sexual advances towards one of the
children.  The district court found these allegations to be false
and awarded custody of the children to Foley.

Foley alleged that others learned about the allegations, including
her ex-husband and the Boy Scouts of America, where she was a
volunteer.  As a result of these disclosures, Foley claimed she
suffered extreme humiliation and emotional distress.

The Court of Appeals held that defamation per se may be based on
false accusations that "impute serious sexual misconduct to the
person."  However, the court held that in light of legislation such
as Minnesota's human rights act that protects against sexual
orientation discrimination, allegations of lesbianism do not impute
serious sexual misconduct.  The court also concluded that Foley had
not suffered any harm to her reputation based on the humiliation
and emotional distress alleged.  The district court's order
granting summary judgment to the County was therefore affirmed as
to the defamation count. 

Historically, courts have relied (and still continue to rely) on
sodomy statutes and other homophobic laws to justify and perpetuate
discrimination against lesbians and gay men.  It is therefore
encouraging to see the Minnesota Court of Appeals do the reverse,
by building dynamically on the state's human rights act to reject
negative characterizations of homosexuality in other legal
contacts.  _Ian Chesir-Teran_

West Virginia High Court Outlines Scope of Same-Sex Harassment
Cases

The Supreme Court of Appeals of West Virginia determined that the
West Virginia Human Rights Act recognizes a cause of action for a
claim of same-gender sexual harassment, in response to a certified
question in a case of first impression from the U.S. District Court
for the Southern District of West Virginia, pending before District
Judge Charles H. Haden II. The court also determined what elements
are necessary to establish a claim for sexual harassment under the
West Virginia Human Rights Act, W. Va.Code, 5-11-1, in _Willis v.
WAL-Mart Stores_, 1998 WL 331510 (June 24).  W.Va. Supreme Court
Justice Workman, following the example of the recent U.S. Supreme
Court decision in _Oncale v. Sundowner Offshore Services_, 118
S.Ct. 998 (1998), determined that the West Virginia Human Rights
Act recognized a cause of action for a claim of same-gender sexual
harassment.

Plaintiff Christopher Lack filed a complaint against James Bragg,
his supervisor, and Wal-Mart Stores, alleging that he had been the
victim of sexual harassment.  Lack alleged that Bragg made
offensive jokes, remarks, and gestures to him or in his presence.
Examples of the offensive behavior alleged by Lack included Bragg
grabbing his crotch at a Christmas party in December 1994 while
stating "This is your Christmas present," and another instance when
Bragg motioned as if he was going to unzip his pants while saying
"Come here."  Bragg, reportedly, would also say, "I'm coming. I'm
coming, Chrissy. I'm coming for you," when Lack called Bragg to the
service desk. Lack filed a complaint with the employer, which
resulted in Bragg's termination.

Wal-Mart relied on the 4th-Circuit's pre-_Oncale_ approach to
claims involving same-sex sexual harassment, arguing that a
violation of the Act can only be established if Plaintiffs can
prove that Bragg was a homosexual.  Relying on _Oncale_, Justice
Workman rejected this argument and stated that the aggressor need
not be homosexual, although without such evidence, same-sex
harassment could be harder to prove.  The _Oncale_ court, citing
_Harris v. Forklift Systems, Inc._, 510 U.S. 17 (1993), stated that
the critical issue in sexual harassment claims is whether members
of one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed. Many
factors can instigate sexual harassment, not just sexual desire.

In _Oncale_, the Court determined that in order to establish a
claim for same-sex harassment, a plaintiff-employee must prove that
(1) the subject conduct was unwelcome; (2) it was based on the sex
of the plaintiff; (3) it was sufficiently severe or pervasive to
alter the plaintiff's conditions of employment and create an
abusive work environment; and (4) it was imputable on some factual
basis to the employer. The _Oncale_ court also stated: "Conduct
that is not severe or pervasive enough to create an objectively
hostile or abusive work environment -- an environment that a
reasonable person would find hostile or abusive -- is beyond Title
VII's purview."  The U.S. Supreme Court held that ordinary
socializing in the workplace should not be mistaken for sexual
harassment. 

Noting that West Virginia courts have consistently followed federal
court interpretations of Title VII in construing the state's civil
rights law, Workman indicated that the West Virginia courts would
consistently follow federal same-sex harassment principles under
Title VII.  This case represents one of the first state
interpretations of the same-sex harassment issue post-_Oncale_.
_Leo L. Wong_

Gay Chatter Is Not Hostile Environment Sexual Harassment Under
Title VII

An allegedly heterosexual woman lost her hostile environment sexual
harassment claim when a U.S. District Court judge ruled that being
exposed to constant comments about gay sex by her openly-gay co-
worker was not sexual harassment.  _Crawford v. Bank of America_,
1998 WL 292985 (N.D.Ill., May 28) (not officially reported).  

Deborah Crawford, co-manager with a gay man of a Bank of America
branch office, asserted that her gay co-worker's constant
references to gay sex had created a hostile environment, subjecting
her to discrimination on the basis of sex and sexual orientation in
violation of Title VII.  The employer moved for summary judgment,
arguing that even if Crawford's allegations were factually true,
they were not actionable as a matter of law.  Chief Judge Aspen
agreed with the defendant.

First, Aspen noted that Crawford's claim of sexual orientation
discrimination is not cognizable under Title VII because federal
courts have uniformly held that Title VII does not forbid such
discrimination.  "Sexual orientation enters into this case only
because the allegedly harassing comments and stories from
Crawford's co-worker were of a homosexual nature," wrote Aspen. 
Aspen found two defects in Crawford's sex discrimination claim. 
First, "there is no evidence that Crawford was subjected to her co-
worker's stories because of her gender, and discrimination on the
basis of gender is the crux of her claim. . . But the fact that her
homosexual co-worker's comments were of a sexual nature actually
works against Crawford; we ordinarily do not expect a homosexual
man to make overtures to a woman."  Citing and quoting from the
Supreme Court's recent decision in _Oncale v. Sundowner Offshore
Services, Inc._, 118 S.Ct. 998 (1998), Aspen commented that
Crawford could not rely on the sexual nature of the comments to
draw inferences of sex-bias on the part of her co-worker, and thus
could not proceed on a hostile environment theory.

Secondly, Crawford had never communicated any of this to management
officials above the level of her co-worker, and they could not be
expected to have learned about it otherwise.  Under 7th Circuit
precedents, employer liability for hostile environment harassment
by a co-worker must be premised on employer negligence in failing
to deal with a harassing situation that the employer knows about,
or should discover through reasonable attentiveness.  In this case,
the employer has a sexual harassment policy and a grievance
mechanism, and Crawford made no reasonable effort to invoke the
policy.  (This result is not apparently affected by the Supreme
Court's two sexual harassment employer liability decisions issued
a month later and reported elsewhere in this issue of _Law Notes_,
as those decisions on vicarious liability relate to harassment of
rank-and-file employees by supervisors.)

Aspen also found that Crawford had presented no probative evidence
on an alternative disparate treatment claim based on sex, and
granted summary judgment to the defendant.  A.S.L.

California Trial Judge Holds "Don't Ask, Don't Tell" Violates State
Law

In a decision widely-reported in the press but not yet available in
Westlaw or Lexis databases, San Francisco, California, Superior
Court Judge David Garcia ruled June 19 that the federal military
"don't ask, don't tell" policy may not be implemented by the
California National Guard, due to its conflict with state law
banning sexual orientation discrimination.  Although former Lt.
Andrew Holmes lost his federal challenge to his exclusion from the
Guard in _Holmes v. California Army National Guard_, 124 F.3d 1126
(9th Cir. 1997), he has achieved an initial victory in his state
court suit.  Refusing to dismiss the case, Garcia certified it as
a state class action covering all gay, lesbian and bisexual members
of the California National Guard who face discharge if their sexual
orientation becomes known.  The state has argued that it is
compelled to apply the "don't ask, don't tell" policy in its
National Guard units due to federal military policy.  Disagreeing,
Judge Garcia found that an individual could continue to serve in
the state force without being qualified for federal aspects of the
work.  _San Francisco Chronicle_, June 20, July 1; _New York
Times_, July 1.  The state will appeal the ruling. A.S.L.

6th Circuit Affirms New Medicaid Fraud Trial for Former Gay Lovers

In an unpublished disposition, the U.S. Court of Appeals for the
6th Circuit affirmed a decision by the U.S. District Court for the
Southern District of Ohio that two gay men may be prosecuted a
second time for Medicaid fraud after a mistrial was declared in
their first trial.  _U.S. v. Neufeld_, 1998 WL 320985 (June 4)
(unpublished disposition).  

Dr. Elliot Neufeld and Jon Mickle were indicted for Medicaid fraud. 
The allegation was that Neufeld, who had a general family medical
practice, and Mickle, who was a registered nurse in a low-level
management position with a home health care company, had been part
of a conspiracy between 1991 and 1994 to violate the
Medicare/Medicaid anti-kickback statute.  Neufeld and Mickle also
had a sexual relationship during this period of time.  During jury
selection, their counsel made a point of questioning each jury
about whether they could be fair in a case where the defendants
were homosexuals, and also indicated that the defendants were
friends.  However, the defense asked the judge to rule that the
prosecutor could not introduce evidence of "specific instances of
sexual conduct" during the trial, and the judge so ruled.

Then during the trial the prosecutor called on a former employee of
the home health care company and elicited testimony that the
defendants were "lovers," to which the defendants' attorney
objected on grounds of violation of the pre-trial order.  The court
admitted the testimony, but later granted a defense motion for a
mistrial on grounds of violation of the pre-trial order.  However,
the court denied a defense motion to dismiss the indictment on
grounds of double jeopardy.  In a ruling affirmed by the 6th
Circuit, the trial judge found that the prosecutor had not
deliberately provoked a mistrial, but rather had thought that
eliciting testimony that the defendants were lovers would not be a
violation of the pre-trial order because no evidence was elicited
about them engaging in specific instances of sexual conduct. 
Consequently, under the circumstances it would not be considered
double jeopardy to retry the defendants.  A.S.L.

SEC Reverses _Cracker Barrel_ Opinion; May Allow Shareholder
Proxies on Corporate Employment Policies

The U.S. Securities and Exchange Commission has published
amendments to its rules governing shareholder proposals that may
significantly expand the opportunity for corporate shareholders to
pressure businesses to adopt gay-friendly employment policies. 
_Amendments to Rules on Shareholder Proposals_, 63 Fed. Reg. 29106
(May 28, 1998), to be codified at 17 CFR Part 240.14a.  The new
rule, effective June 29, marks a return to a "case by case"
evaluation of whether a proposed shareholder resolution concerns
the "ordinary business operations" of a company and thus may be
excluded from the proxy-solicitation mailings that corporations
must send to their shareholders prior to annual shareholder
meetings.

The new rule specifically overrules the position the S.E.C. took in
1992 in response to a controversy at the Cracker Barrel
Corporation.  Cracker Barrel, which operates a chain of "family"
restaurants in many states, adopted an explicit policy against
employing lesbians, gay men and bisexuals in 1991.  Several
employees were specifically fired as a result of the policy, and
gay groups declared a boycott of Cracker Barrel.  Because Cracker
Barrel was a profitable, expanding business, it had attracted money
from many institutional investors, including municipal pension
funds.  Elizabeth Holtzman, at that time Comptroller of New  York
City with responsibility for managing the city's pension fund
investments, tried to use the City's position as a Cracker Barrel
shareholder to propose a shareholder resolution that would demand
that Cracker Barrel adopt a sexual orientation non-discrimination
policy.

Cracker Barrel did not want to include this proposal in its annual
proxy mailing, and sought a ruling from the S.E.C. that this
pertained to its "ordinary business operations" and thus did not
have to be included.  The S.E.C. granted Cracker Barrel's request,
in a 1992 decision announcing the Commission's view that employment
policies, including discrimination policies, should be considered
ordinary business operations and thus not subject to shareholder
decision-making.  _Cracker Barrel Old Country Store, Inc._, 1992 WL
289095 (SEC 1992)(shareholders cannot vote on ordinary business
matters, including whether to ban sexual orientation
discrimination).

Holtzman filed a lawsuit against the S.E.C. challenging this
position, but she lost in the U.S. Court of Appeals for the 2nd
Circuit.  _N.Y.C. Employees' Retirement System v. S.E.C._, 45 F.3d
7 (2nd Cir. 1995).  However, new members of the S.E.C. appointed by
President Clinton began to state their opposition to the Cracker
Barrel ruling, and last September, the Commission published
proposed new rules that would open up the proxy process to a
certain extent.  See 62 Fed. Reg. 50682 (Sept. 18, 1997).

The Commission was flooded with written comments about the rules,
both pro and con.  According to the May 28 announcement in the
Federal Register, the Commission received more than 2,000 comments
from individuals, organizations, and companies.

Under the newly-announced approach, the Commission will decide on 
a case-by-case basis whether a particular employment-related
shareholder proposal relates to ordinary business operations or
whether it concerns a matter of social policy on which shareholders
should be entitled to express their views.  Responding to
criticisms of the September 1997 proposal, the Commission decided
not to adopt certain rules that would have made it more difficult
for a defeated shareholder proposal to be brought up again in
following years.

While the new rule does not guarantee that every shareholder
proposal having to do with gay issues would automatically qualify 
for inclusion in a company's proxy mailing, comments by the
Commission accompanying the new rules suggest that the kind of
resolution that was presented to Cracker Barrel would certainly
qualify.   It is less certain that a resolution seeking domestic
partnership benefits would qualify, although a good argument could
probably be made that such a resolution would be addressing social
policy questions of significance in trying to achieve equal
treatment in the workplace for unmarried employees. A.S.L.

California Judge Rules Against Police Sex Decoys

Relying on the California Supreme Court's 1996 decision in _Baluyut
v. Superior Court of Santa Clara County_, 50 Cal. Rptr.2d 101, 911
P.2d 1, an equal protection challenge to a police operation using
undercover decoys to entrap gay men into sexual acts outside a
targeted adult bookstore, Stanislaus County Superior Court Judge Al
Girolami threw out a prosecution against a gay man who had
evidently been enticed by an undercover police officer to violate
a statute that prohibits "lewd behavior," defined as touching of
buttocks, genitals or female breasts in a public place where the
participants have not taken reasonable precautions to prevent being
observed by passers-by.  _People v. Reyna_ (June 11).  

According to a June 13 report in the _Modesto Bee_, Judge Girolami
broadly interpreted _Baluyut_ to mean that unless the police are
ready to start using the same tactics to lure heterosexuals into
making unlawful solicitations for sex, they cannot use undercover
officers deliberately to entice gay men into violating the law.  

The _Bee_ news report does not provide details of the defendant's
arrest, reporting only that the case "stemmed from a September
incident at Tuolumne River Regional Park" where "a former Modesto
man. . . solicited an undercover police decoy for a homosexual sex
act."  Defendant G. Reyna is represented by Bay Area attorney Bruce
W. Nickerson, who litigated the _Baluyut_ case and "specializes in
gay rights issues," according to the _Bee_.  Nickerson examined
court records and found that all the prosecutions under the statute
going back several years involved undercover operations against gay
men.  Nickerson told the _Bee_ that he intended to use this ruling
to secure reversals of convictions for perhaps twenty other
Stanislaus County residents who were similarly entrapped by police
over the past three years.  

An official from the County Attorney's office said that it would
not appeal the ruling. A.S.L.

"Straight" Sailor Discharged for Gay Sex Wins Appeal

According to long-standing military regulations, pre-dating the
current "don't ask, don't tell" regime, somebody who has gay sex
can be retained in the service if they prove they aren't really
gay.  But in their rush to discharge all gays, the military
sometimes trips over its own regulations, as found by the U.S.
Court of Federal Claims in _Kindred v. U.S._, 1998 WL 305204 (June
9).  

Lt. J.G. Steven B. Kindred, a married man with several children who
had served 17 years at the time of his discharge, was accused of
sexual abuse by his step-daughter.  Responding to the charge, the
Naval Investigative Service requested that Kindred enter the Navy's
Family Advocacy Program to have a psycho-sexual evaluation done. 
The FAP is described by the court as a "social services program
established by the Navy to `address . . . child and spouse
maltreatment, sexual assault and rape. . .  The program provides
for treatment of service members and for investigation of
allegations of abuse."

While he was being interviewed for the psycho-sexual evaluation,
Kindred was asked to give a complete account of his past sexual
experiences.  He voluntarily complied, asserting that he had never
assaulted his step-daughter but that "he had been involved in a
number of homosexual encounters -- all but one taking place
approximately four years before the evaluation."  The FAP turned
over this information to his commanding officer, who recommended
that Kindred be discharged for homosexual conduct.  (Typically,
statements made in counseling programs in the military are not
treated as confidential.)

Kindred was processed through the system and discharged, even
though he maintained throughout that he was heterosexual, that the
homosexual incidents, which had occurred during a rocky period in
his marriage, had been experimentation designed to determine if his
sexuality was the problem in his marriage, that he had resolved all
doubts in favor of heterosexuality and concluded that he was
uninterested in -- even repulsed by -- gay sex, and would not
engage in it in the future.  Under military regs, the decision-
making bodies are supposed to evaluate somebody who has engaged in
homosexual conduct in light of a list of mitigating factors
designed to show that the individual is, in fact, not gay, and to
make specific findings with respect to those factors.

In challenging his discharge, Kindred advanced a variety of
unsuccessful arguments, but he succeeded in convincing the Court of
Federal Claims that the Navy had failed to abide by its own
regulatory procedures in that no decision-maker at any point in the
process had made specific findings on the record regarding the
mitigating factors and Kindred's argument that his was a case where
discretion could and should be exercised to avoid a discharge.  

Wrote Judge Turner, "Plaintiff served 17 years in the Navy without
incident and underwent a lengthy administrative discharge
proceeding without any discharge authority ever making explicit
findings concerning whether, despite his candid admission of
misconduct, he was fit for service.  The failure of the Navy to
consider the factors for retention before plaintiff was discharged
makes plaintiff's discharge unlawful."

On this basis, the court ordered Kindred's reinstatement to active
service retroactive to his date of discharge at his then-current
rank, with backpay and allowances and correction of his naval
records to delete all references to his discharge.  However, the
court noted that this disposition was without prejudice to the
Navy's right to institute new discharge proceedings, provided that
this time they follow their own rules to make sure they are not
mistakenly discharging a heterosexual.

The case illustrates, of course, that the actually military
regulations (as opposed to the incompetent practices of the Navy
administration in this case) impose a status discrimination, and in
essence have nothing to do with conduct, despite the pious
disclaimers of Congress and military leaders.  A.S.L.

"Breeder" Harassment Not Actionable

In _Chrouser v. DePaul University_, 1998 WL 299426 (May 20), U.S.
District Judge Kocoras (N.D.Ill.) granted a defense motion for
summary judgment in a case involving both Title VII same-sex
harassment and the Americans With Disabilities Act.

Plaintiff Kelley Chrouser taught at DePaul University, where she
alleged sexual harassment by two lesbian colleagues.  One called
her a "breeder," and the other commented on her body and clothing. 
When her department's Personnel Committee decided not to renew her
contract (citing unprofessional behavior, "thin" scholarship, and
"moodiness"), Chrouser complained to the EEOC and then sued.  

Judge Kocoras ruled that the breeder remark was based on sexual
orientation, not sex, and therefore was not actionable under Title
VII.  As to the remaining comments and one episode of allegedly
intimidating staring, Kocoras wrote that some of the comments
seemed intended solely to help the plaintiff dress in a more
professional manner, and "nine incidents of sexual harassment over
roughly a two year period . . . does not qualify as pervasive." 
(Pervasiveness is required for a hostile environment harassment
claim.)

Kocoras also rejected Chrouser's ADA claim, based on "adjustment
disorder with depressed mood," because the essential functions of
the job were "1) teaching, 2) collegiality and service, and 3)
scholarship," finding that Chrouser had failed to evince that she
was qualified for the position.  Lastly, Kocoras rejected
Chrouser's retaliation claim, finding no evidence that the
personnel committee even knew of her complaints when they decided
not to renew her contract.  _Otis R. Damslet_

Marriage & Domestic Partnership Notes
     
Showing how far the mainstream paradigm has begun to shift on same-
sex marriage, the Washington State Democratic Party adopted a
resolution at its June 6 convention, stating: "We affirm that
because marriage is a basic human right and an individual personal
choice, the state should not interfere with same-gender couples who
choose to marry and share fully and equally in the rights,
responsibilities and commitment or civil marriage." 

On June 24, the New York City Council voted 39-7 to approve a
domestic partnership bill introduced by Speaker Peter Vallone at
the behest of Mayor Rudolph Giuliani.  The bill codifies existing
registration procedures and policies in the city government (which
had previously been established by executive orders dating in some
cases back to the administration of Edward I. Koch in the 1980s),
and identifies about two dozen instances in city ordinances where
domestic partnership status will be equated with marital status. 
The bill imposes burdens as well as awarding benefits, as it will
extend financial disclosure and conflict of interest rules to
domestic partners of city employees on the same basis that such
rules apply to marital spouses.  Mayor Giuliani signed the bill
into law on July 7.

The Colorado Commission on the Rights and Responsibilities of Same-
Sex Relationships, appointed by Gov. Roy Romer, has produced a
report arguing that the state should grant committed same-sex
couples the same rights, benefits and responsibilities that are
granted to married heterosexual couples.  However, the Commission
did not endorse same-sex marriage, instead calling for the
establishment of a special registered status for same-sex couples. 
Romer appointed the commission as part of his response to a
proposed state law, which he vetoed, to outlaw same-sex marriage. 
Local gay rights leaders criticized the report as endorsing
"apartheid," while state Republican legislative leaders
characterized its recommendations as "ridiculous."  _Denver Post_,
July 8.

The Salvation Army has announced that it will cease to do business
with the City of San Francisco, rather than comply with a city
ordinance that requires city contractors to provide domestic
partnership benefits for their employees.  Although the Salvation
Army will continue to provide various programs for the elderly and
indigent, the San Francisco programs will rely solely on private
donations and will be considerably scaled back due to the
discontinuation of city money.  _San Francisco Chronicle_, June 4.

AMR, the holding company that owns American Airlines, announced
June 10 that single employees can extend to one registered
companion many of the same travel privileges that are now given to
employees' spouses.  _Washington Blade_, July 3.

The hot debate this summer in Hartford, Connecticut, is over
whether unmarried (including gay) couples should be able to pay the
discounted family fee for use of the town pool.  The Democratic
Minority Leader of the City Council, Patrick McCabe, has proposed
a new resolution to create a "household" category that would let
same-sex couples and other people who share a household to use the
reduced rate.  An earlier resolution that would have specifically
extended the family rate to same-sex couples was voted down by the
Republican council majority in June, although the council then
voted to reduce the individual membership rate by $50.  McCabe's
proposal would still require households to pay more than families,
but the total would be less than multiple individual memberships. 
_Hartford Courant", July 8.

The ACLU Lesbian & Gay Rights Project filed suit in New York
Supreme Court against Yeshiva University, alleging that the school
unlawfully discriminated on the basis of sexual orientation and
marital status by refusing to allow same-sex couples to reside in
married student housing at the school's Albert Einstein College of
Medicine in the Bronx, N.Y.  The ACLU lead attorney _Levin v.
Yeshiva University_ is Michael Adams, with assistance from Project
Director Matt Coles, NY Civil Liberties Union attorney Art
Eisenberg, and cooperating attorneys James Esseks and Karen
Honeycutt from Vladeck, Waldman Elias & Engelhard.

Taking principled positions has proved costly to the California
State Bar.  The organization's stands in favor of same-sex marriage
and reproductive freedom, among other issues, have brought it into
a collision course with Governor Pete Wilson and conservative
elements in the state legislature and judiciary.  The confrontation
resulted in the legislature upholding Wilson's veto of a bill
authorizing a continuation of dues requirements for members of the
state bar, as a result of which a substantial portion of the Bar
Association's staff has been laid off.  (The California State Bar
administers bar admissions and lawyer discipline, and all attorneys
admitted to practice in California are required to be dues-paying
members, but the legislature and governor play a large role in
authorizing dues levels.)  The governor is seeking the power to
appoint a majority of the Bar Association's board of governors.

Jon and Michael Galluccio, whose joint adoption of a son made legal
history in New Jersey recently, had a wedding ceremony on June 21
at the Episcopal Church of the Atonement in Fair Lawn, N.J., that
was reported throughout the country as a result of an Associated
Press story.  The ceremony attracted one protester, who exclaimed,
"There are no gays in heaven - Repent!"  _Newsday_, June 22. 
A.S.L. 

U.S. Supreme Court Notes

In a ruling that will make it difficult for students to bring
sexual harassment claims against teachers under Title IX of the
Education Amendments of 1972, a federal statute that forbids sex
discrimination by educational institutions that receive federal
funds, the Supreme Court ruled 5-4 in _Gebser v. Lago Vista
Independent School District_, 1998 WL 323555 (June 22), that a
school district could only be liable for harassment by a teacher
when the harassment was reported or made known to a school district
official who had authority to take action, and the official failed
to take action to stop the harassment.  The court rejected the
contention that by placing school teachers in positions of control
and authority over students, the district was subjecting itself to
strict liability for the teachers' actions.  (The 2nd Circuit,
among others, had taken the more liberal position.)  

In two opinions issued June 26, the Supreme Court clarified the
potential liability of employers for sexual harassment committed by
supervisory personnel.  _Burlington Industries, Inc. v. Ellerth_,
1998 WL 336326; _Faragher v. City of Boca Raton_, 1998 WL 336322. 
The Court held that employers will be vicariously liable when
supervisors engage in quid pro quo sexual harassment and the
employee suffers adverse consequences, such as discharge, denial of
a promotion, or a bad work assignment for refusing a supervisor's
sexual advances.  In such cases, there will be no requirement to
show that the employer was negligent; so long as the employee
suffered adverse consequences, the supervisor's harassing conduct
will be attributed to the employer.  In cases where there is no
quid pro quo, usually referred to as "hostile environment" cases,
the employer will be vicariously liable for a supervisor's "misuse"
of authority, unless it can show that it maintains a policy that
forbids the harassing conduct and the plaintiff unreasonably failed
to take advantage of the policy.  
In _General Media Communications v. Cohen_, 1998 WL 130798 (S.Ct.,
June 26), the Supreme Court denied certiorari to the publisher of
_Penthouse_ magazine, who was seeking to overturn a ruling by the
U.S. Court of Appeals for the 2nd Circuit, 131 F.3d 273 (1997),
upholding a law that excludes sexually explicit publications from
sale on military bases.  The Defense Department's rule forbids sale
or rental of magazines or videos whose "dominant theme" is to
portray nudity "in a lascivious way."  Military members can buy
material off-base and bring it on-base, unless, of course, it is
adjudged to be "obscene," in which case it is subject to
confiscation.  

Nine cities have joined an amicus brief urging the Supreme Court to
grant certiorari and reverse the opinion of the U.S. Court of
Appeals for the 6th Circuit in _Equality Foundation of Greater
Cincinnati v. City of Cincinnati_, 128 F.3d 289 (1997).  Despite a
remand from the Supreme Court in light of _Romer v. Evans_, the 6th
Circuit reiterated its view that Cincinnati voters did not violate
the Equal Protection Clause of the federal constitution when they
voted to amend their city charter to prohibit the city from
protecting gay people from discrimination.  Cities joining the
amicus brief include: Aspen, Atlanta, Boulder, Los Angeles, New
York, Philadelphia, Portland (Oregon), San Francisco, and Seattle. 
_Bay Area Reporter_, July 2. A.S.L.

Litigation Notes

The U.S. Court of Appeals for the 2nd Circuit affirmed a decision
by U.S. District Judge Miriam Cedarbaum to refuse to enjoin
enforcement of New York City zoning regulations that will sharply
reduce the locations where sexually-oriented businesses can operate
within the City of New York.  _Hickerson v. The City of New York_,
1998 WL 283205 (June 3).  Although comments from the bench at oral
argument raised hopes that the court might find that the plaintiffs
should be given a new opportunity to show that the ordinance was
motivated by a constitutionally impermissible intent to sharply
reduce the number of such businesses, ultimately the court decided
to step out of this controversy, holding that the plaintiffs had
been given a fair opportunity to litigate their First Amendment
claims in the state courts, and as a matter of "full faith and
credit" the federal courts should not allow the same claims to be
relitigated in a different forum.  The underlying New York Court of
Appeals decision in this matter is reported as _Stringfellow's of
New York Ltd. v. City of New York, 91 N.Y.2d 382 (1998).  Judging
by news reports following the decision, many operators of adult
businesses will attempt to alter their businesses by increasing the
proportion of non-sexual inventory they carry and toning down their
window displays and signage, in order to continue operating at
their present locations.

California newspapers reported that San Francisco Superior Court
Judge David Garcia found that it would violate the California
constitution for the California National Guard to disqualify
openly-gay people from serving based on the federal "don't ask,
don't tell" policy.  Garcia reportedly told attorneys in the case,
which was brought by former Guard member Andrew Holmes, that he
will certify a class action lawsuit.  A spokesperson for the state
National Guard announced that they would take an appeal to the
First District Court of Appeal.  _Holmes v. California National
Guard_, _San Francisco Examiner_, June 24.

Both the U.S. Navy and America On-Line have reached settlements
with Timothy R. McVeigh, whose confidentiality was breached by AOL
in response to inquiries from Naval investigators looking into
information that McVeigh had posted an AOL profile of himself
suggesting that he was gay.  The Navy took the position that the
posting violated the "don't ask, don't tell" policy.  McVeigh, who
has never publicly discussed his sexual orientation, sued to block
his discharge, and also sued AOL for violating its own terms of
service by revealing his identity to the Naval investigators. 
Under the agreement with the Navy, McVeigh will retire with full
benefits and reimbursement of his litigation expenses, including
legal fees.  In an agreement with AOL, McVeigh agreed to drop his
lawsuit in exchange for an undisclosed monetary settlement and a
formal apology.  AOL claims that it has changed its privacy
policies and will drill its staff to ensure that they know how to
apply the policies in the future to protect the confidentiality of
AOL subscribers.  _New York Times_, June 12.

On June 24, 1997, the 9th Circuit ruled in _Pitcherskaia v.
Immigration and Naturalization Service_, 118 F.3d 641, that Russian
lesbian Alla Pitcherskaia's claim for asylum should not have been
rejected based on a theory that her Russian oppressors believed
they were curing her of homosexuality by demanding that she submit
to psychiatric treatment.  The matter was remanded to the
Immigration Service.  A year later, on June 26, Immigration
officials announced that they would send the case back to an
immigration judge for a new determination of whether Pitcherskaia
is likely to be persecuted if returned to Russia.  Lambda Legal
Defense & Education Fund, which represented Pitcherskaia in her
appeal to the 9th Circuit, condemned this new development, arguing
that there was sufficient evidence in the original hearing record
to conclude that Pitcherskaia is entitled to asylum, and that she
should not be left in legal limbo any longer.

U.S. District Judge Hansen (D. New Mexico) has granted a
preliminary injunction against the enforcement of a New Mexico
statute that purports to protect children from exposure to
sexually-oriented material on the Internet by imposing penal
sanctions on people who transmit such materials.  Hansen found that
the plaintiffs are likely to succeed on their claims that the
provision violates the 1st, 5th and 14th Amendments and the
Commerce Clause of the U.S. Constitution.  _ACLU v. Johnson_, 1998
WL 355459 (June 30).  Earlier in the month, a New York Supreme
Court Justice, Carolyn Demarest of Brooklyn, rendered a similar
ruling, holding unconstitutional N.Y. Penal Law sec. 235.22, which
makes it a crime to use the internet to transmit sexually explicit
images to encourage minors to engage in sexual activity.  _People
v. Barrows_, NYLJ, 6/12/98, p. 38, col. 5.

A Worcester County, Massachusetts, jury has awarded $600,000 in a
same-sex harassment case brought under Massachusetts employment
discrimination law.  _Belanger v. Norton Co._, No. 95-01767B (Mass.
Superior Ct., Worcester, May 21, 1998).  Donald Belanger claimed
that he had been subjected to sexual abuse by a co-worker who
attacked him twice, constantly asked him to have sex, and made lewd
comments and gestures towards him.  When Belanger complained to a
supervisor, he was told to "turn the other cheek," and the
supervisor also made sexual comments to Belanger, implying that he
believed Belanger to be gay.  Belanger quit his job, was
hospitalized for depression, and attempted suicide.  The jury ruled
on a hostile environment sexual harassment claim, other elements of
the complaint having been dismissed by the court.  _BNA Daily Labor
Report_, No. 119, June 22, 1998, pp. A-5/6.

A Louisiana judge has ordered that two children be placed in the
temporary custody of their paternal grandparents, based on the
grandparents' claim that the children's lesbian mother, Becky Lynn
Davis, is engaging in sexual activity with her partner in their
presence and attempting to influence the children's sexual
orientation.  The children's father, Joseph C. Davis, is in prison
for a parole violation based on threats he is alleged to have made
to his ex-wife.  Caddo Parish District Court Judge Michael Walker
issued not explanation for his order.  _Washington Blade_, July 3.

The ACLU Lesbian & Gay Rights Project has filed a lawsuit in San
Juan Superior Court challenging the constitutionality of Puerto
Rico's sodomy law.  The statute, which penalized the "crime against
nature," apparently applies both to homosexuals and heterosexuals. 
The maximum penalty under the law is a fine up to $1,000 and a
prison term of up to ten years.  The suit alleges violations of
both equal protection and privacy rights under both the
commonwealth and U.S. federal constitutions.  Representing the
plaintiffs in _Sanchez v. Commonwealth of Puerto Rico_ (filed June
23) are ACLU staff attorney Michael Adams, Project Director Matt
Coles, and San Juan attorney Charles Hey Maestre, with assistance
from attorney Ana Irma Rivera Larsen.  

A mediated settlement may be in store in the lawsuit against the
Salt Lake City, Utah, School Board brought by the East High School
Gay/Straight Alliance with the assistance of Lambda Legal Defense
& Education Fund and the ACLU of Utah.  The suit was sparked by the
School Board's decision to ban all non-curricular student clubs
rather than extend recognition (as would be required by the federal
Equal Access Act) to the gay/straight student alliance.  On June 8,
representatives of all parties told U.S. District Judge Bruce
Jenkins that they would attempt mediation to avoid having to try
the case.  _Salt Lake Tribune_, June 9.

A Florida jury has awarded Peggy Moore $1 million in damages in a
same-sex harassment suit against Belk Lindsay Stores, Inc. 
_Orlando Business Journal_, June 5.  Moore claimed that a female
co-worker had subjected her to offensive unwanted touching of a
sexual nature, including kissing, use of vulgar language, and
sexual propositions.  The defendant store claimed, among other
things, that Moore could not have a case because the co-worker was
not bisexual or lesbian, but the Supreme Court's March decision in
_Oncale_ removed that defense.  The company vowed to appeal.

U.S. District Judge Susan J. Dlott has reiterated her order that
openly gay teacher Bruce Glover be reinstated for a two-year
contract at Williamsburg, Ohio, Elementary School, but modified her
award to allow the school district to reassign him to a middle
school if no position is open teaching in the lower grades. 
_Glover v. Williamsburg Local School District Board
of Education_, No. C-1-96-896 (June 2, 1998).  _Cincinnati
Enquirer_, June 3.  The facts of this case were reported in _Law
Notes_ in June.

Bartow County, Georgia, Judge Tom Pope rejected a claim by a
lesbian mother that restrictions on child visitation contained in
her 1995 divorce order constitute unlawful discrimination.  At the
time of her divorce, Connie Drenkhahn obtained custody of the
couple's 7-year-old son, while her ex-husband, John Hemphill,
received custody of their infant daughter; under the terms of the
divorce, the daughter would visit her mother three days each week,
and the mother's partner could not be present during visitation. 
Different judges have fined Drenkhahn several times for violating
this restriction, so Drenkhahn went to court to challenge the
restriction.  Judge Pope found that the restriction was placed
because of Drenkhahn's partner's conduct, not due to sexual
orientation.  Drenkhahn expects to appeal the ruling.  _Atlanta
Constitution_, June 18.

The business and professional press are paying attention to what is
claimed to be the first sexual orientation discrimination suit
brought by a financial industry professional against a major bank. 
Joseph Daniel, an Ivy-league graduate and former vice president of
Dresdner Bank, charged that the bank discriminated against him and
ultimately discharged him because he is gay, and is seeking $75
million in damages in U.S. District Court (S.D.N.Y.).  On June 8,
U.S. District Judge Denny Chin refused to dismiss the diversity
suit (which is based on New York City's Human Rights Ordinance). 
A looming issue that may stand in the way of the litigation is
whether the dispute is subject to mandatory industry-controlled
arbitration, under the standard employment agreements that have
long been used in the financial services industry.  _National Law
Journal_ July 6; _New York Daily News_, June 15.

Can a client confiding in his or her attorney about sexual matters
expect that the attorney can't be ordered to testify about the
substance of those confidences in later court proceedings, even if
the client has died in the interim?  The Supreme Court said yes in
_Swidler & Berlin v. U.S._, 1998 WL 333019 (June 25).  This should
bolster assurances that attorneys may give lesbian and gay clients
who want to know that their confidences will go no further.  But
one important exception may also be important for lesbian and gay
clients: attorneys can be required to testify about client
confidences when necessary to effectuate the client's purpose as a
testator.

The Office of Civil Rights (OCR) of the U.S. Department of
Education has reached an agreement with the public school system in
Fayetteville, Arkansas, to institute policies to protect lesbian
and gay students from harassment.  The agreement resulted from
filing of a complaint by Lambda Legal Defense & Education Fund on
behalf of William Wagner, a gay student who had suffered harassment
so severe that his parents removed him from the local high school
in fear for his life.  The agreement, which was signed by the
Fayetteville school superintendent on June 8 and reported by OCR to
Lambda in a June 17 letter, requires the school system to adjust
its policies and procedures and train faculty, staff, and students
about the obligations to refrain from harassment, and to provide
progress reports on compliance to OCR until June 1999.  According
to Lambda staff attorney David Buckel, who represents Wagner, this
was the first sexual orientation harassment case to have been filed
under new Title IX Guidelines that OCR issued in March 1997, which
for the first time officially recognized that same-sex harassment
by fellow students is prohibited "sex discrimination" under Title
IX.  A.S.L.

Legislative Notes

Some Republican members of the House of Representatives have
indicated they will attempt to amend an appropriations bill to
forbid the executive branch from spending any money appropriated by
Congress on enforcement of President Clinton's executive order,
issued May 28, banning sexual orientation discrimination within the
executive branch.

President Bill Clinton sent a letter to the majority and minority
leadership of both houses of Congress on June 24, urging quick
passage of the pending Hate Crimes Prevention Act of 1998.  The
bill would empower federal prosecutors to prosecute hate crimes
committed because of the victim's sexual orientation, gender, or
disability, and would remove many existing jurisdictional
requirements for prosecution of hate crimes under current federal
laws covering race, religion, and national origin.  Clinton stated:
"Whether it is a gay American murdered as he walks home from work
or a Jewish American whose synagogue is desecrated by swastikas,
such acts are not only examples of bias and bigotry -- they are
crimes.  They strike at the heart of what it means to be an
American and at the values that define us as a Nation.  That is why
I believe now is the time for us to take strong and decisive action
to fight hate crimes."

On July 1, the New Orleans City Council approved an ordinance that
outlaws intimidation based on "gender identification." 
Intimidation is defined as "the commission of any act" against a
person because of one of the characteristics listed in the
ordinance, which also covers sexual orientation, race, age, color,
creed, disability, gender or other characteristic.  However, the
measure, which is intended to protect cross-dressers and
transsexuals, also specifically allows employers to adopt dress-
codes prohibiting cross-dressing in the workplace.  Employees who
present a doctor's certificate that they have been diagnosed with
gender identification disorder do not have to comply with employer
dress codes.  _New Orleans Times-Picayune_, July 2; _Baton Rouge
Advocate_, July 3.

The Selectmen of Ogunquit, Maine, unanimously adopted a
proclamation early in June declaring the town's support of non-
discrimination principles, but fell short of passing a local civil
rights ordinance to ban anti-gay discrimination.  Town Manager
pointed out that two-thirds of the ballots cast in Ogunquit in the
February referendum on Maine's gay rights law were in favor of
retaining the law.  Ogunquit experiences an influx of gay
vacationers every summer and wanted to assure gay people that they
were welcome without discrimination in the town.  _Portland Press
Herald_, June 4. * * * In similar action, the Brunswick, Maine,
town council voted unanimously on July 6 that Brunswick "supports
a spirit of tolerance," and will consider adopting a policy banning
discrimination based on sexual orientation for town employees. 
_Portland Press Herald_, July 7.

The city council in Madison, Wisconsin, unanimously passed a
resolution on July 7 saying that all people, including gays and
lesbians, have a right to live in peace as valued members of the
community, according to a July 8 article in the _Wisconsin State
Journal_.  Passage of the resolution was precipitated by the
erection of five billboards quoting the Bible as condemning
homosexuals as sinners.  The billboards were erected by Wisconsin
Christians United, a right-wing fundamentalist group.  (Madison was
one of the earliest cities in the U.S. to pass a law banning anti-
gay discrimination, in 1979.)

The Gainesville, Florida, City Commission voted 3-1 on June 1 to
add sexual orientation to the city's human rights ordinance, which
forbids discrimination in employment, housing and public
accommodations.

A gay rights law enacted over a mayoral veto in Fayetteville,
Arkansas, on May 6, is headed to the ballot.  The city clerk
announced that more than enough voters have signed petitions to
require a referendum seeking repeal of the measure, which will be
held in November. _Washington Blade_, July 3.

Rhode Island Governor Lincoln Almond, a Republican, signed into law
a measure repealing that state's "crime against nature" law on June
5, according to _The Washington Blade_ (July 3).  The State Senate
had approved the bill by a vote of 26-17 on June 2, after it had
previously passed the House.  This was a traditional law derived
from English common law that prohibited "the abominable and
detestable crime against nature committed with mankind or with a
beast."  The bill repeals the offense against humans but leaves
intact the prohibition against bestiality.  _Associated Press
Political Service_, June 2.

After the mayor of Topeka appointed a gay man and a lesbian to the
city's Human Relations Commission, who then suggested that the
Commission study the problem of anti-gay discrimination in the
city, the city council voted to amend the human relations ordinance
to strip the mayor of her appointment power to the Commission, and
to remove from the Commission's mandate the study of discrimination
issues.  Supporters of the amendments cited the Kansas sodomy law
as justification of their actions.  _Topeka Gay & Lesbian Task
Force Press Release_, June 23.  A.S.L.

Professional Notes

Attorney-client privilege was the subject for intense scrutiny in
the U.S. Supreme Court's June 25 decision in _Swidler & Berlin v.
U.S._, 1998 WL 333019.  Independent Counsel Kenneth Starr sought
disclosure of notes taken by James Hamilton, an attorney at the
firm of Swidler & Berlin, during a conference with Vince Foster, a
White House attorney who was a new client of the firm, shortly
before Foster's death under mysterious circumstances.  Starr sought
the notes as part of his investigation of "Travelgate," the
controversy over the discharge of staff members at the White House
travel office.  Starr argued that the notes, which would ordinarily
be covered by attorney-client privilege, should be made available
because Foster is deceased and could not be harmed by their
release.  Disagreeing with this contention, the Court ruled 6-3, in
an opinion by Chief Justice William Rehnquist, that attorney-client
privilege continues after the demise of the client, except for some
traditional narrowly-defined recognized common law exceptions. 
There is no general exception when the notes could provide useful
and relevant information sought by a criminal prosecutor.  The case
received discussion in the gay press as bearing on the ability of
attorneys to assure lesbian and gay clients that they could confide
in their lawyers in confidence without fearing that the lawyers
could be required to reveal their confidences after the client's
death.

The June 1998 issue of _California Lawyer_ (vol. 18, no. 6),
includes an article describing how legal employers can evaluate
their own practices to avoid sexual orientation discrimination,
under the title: _MCLE Self-Study: Sexual Orientation Bias_ (p.
59).

Justice Leah Sears' support for gay rights in her opinions on the
Georgia Supreme Court have become a central focus of her re-
election campaign.  According to the June 11 issue of _Southern
Voice_, a gay newspaper, one of her opponents has been circulating
campaign materials claiming that Justice Sears "would require the
state to license same-sex marriages," and characterizing this as "a
direct attack on our basic moral standards."  The campaign flyer
cites Sears' dissenting vote to overturn the Georgia sodomy law in
a 1996 case, although it could just as well have cited her opinions
in cases concerning the Atlanta domestic partnership ordinance,
which would have seemed more to the point!

Openly lesbian San Diego, California, Municipal Court Judge Bonnie
Dumanis won 72 percent of the vote on June 3 in her campaign for an
open seat on the state Superior Court.  

The Chicago Bar Association has created a Gay and Lesbian Task
Force for its Young Lawyer's Section, to examine the needs of
younger lesbian and gay lawyers and allow a regular meeting
opportunity for lesbian, gay, bisexual and transgendered law
students.  The Association created a Committee on the Legal Rights
of Lesbians and Gay Men last year.  The Committee's co-chairs for
1998-99 will be Roger McCaffrey and Mary Trew.  Mark Wojcik, an
openly-gay professor at John Marshall Law School, has been elected
to the Association's Board of Managers.  

A Charleston County, South Carolina, Grand Jury has refused to
indict David Schwacke, the Solicitor for Charleston and Berkeley
Counties, for misconduct based on charges that he used his office
computer to access gay pornography and solicit sex with men. 
Schwacke was "outed" by office staff members who discovered sexual
images on his computer screen, and local Republican leaders called
for a grand jury investigation.  As a result of the incident,
Schwacke is now the only openly-gay elected official in South
Carolina.  He issued a public apology to the voters of the 9th
Judicial Circuit for "the mistakes in my personal life and their
unwitting participation as observers in this sordid tale." 
_Associated Press Political Service_, June 3.

Brooklyn, N.Y., attorney Ruth Gursky, a long-time member of the
Lesbian & Gay Law Association of Greater New York, is a recipient
of the Tom Waddell Award given by the Awards Task Force of the
Federation of Gay Games to honor a person whose volunteer efforts
and participation in connection with the Gay Games "embodies the
standards of commitment, selflessness and love of humanity, set by
the late Dr. Tom Waddell," who was a founder of the Gay Games. 
Gursky, a member of Team N.Y., will compete at the Gay Games in
Amsterdam.

Openly gay attorney Todd Dickinson was confirmed by the U.S. Senate
on June 1 for the post of Deputy Assistant Secretary of Commerce
and Deputy Commissioner for Patents and Trademarks.  Dickinson is
reportedly the ninth openly-gay person to win Senate confirmation. 
Dickinson's immediate boss, the Assistant Secretary and
Commissioner of Patents, Bruce Lehman, is also openly gay.  What's
this about gay attorneys and intellectual property law....?  A.S.L.

Positions for Movement Lawyers in Chicago, San Francisco and Denver
Are Announced

Lambda Legal Defense & Education Fund seeks a staff attorney for
their Midwest Office in Chicago to do lesbian, gay and HIV-related
civil rights work and public education.  Applicants should have
significant litigation experience (4+ years preferred), excellent
legal writing and speaking skills, demonstrated commitment to
lesbian, gay and PWA rights.  Experience working in communities of
color preferred.  Salary form low 40's, depending on experience;
excellent benefits.  Send cover letter, resume and writing sample
to: Patricia Logue, LLDEF, 11 E. Adams, Suite 1008, Chicago IL
60603.

The ACLU of Northern California has an opening for a full-time
staff attorney in its San Francisco office.  The position involves
litigation on civil liberties issues, public advocacy work, serving
as co-counsel with cooperating attorneys and supervising volunteers
in the office.  Qualifications include at least a year of
litigation experience or a judicial clerkship and a demonstrated
interest in one of the following areas: lesbian and gay rights,
race and national origin discrimination, criminal justice. 
Applicants must be members of the California bar or be prepared to
take the February 1999 bar exam.  Salary depending on experiencing,
minimum of $40,000 and full benefits.  Send resume and cover letter
to: Frances Beal, ACLU of Northern California, 1663 Mission St.,
Suite 460, San Francisco CA 94103.

The Colorado Legal Initiatives Project, a Denver-based nonprofit
law office specializing in gay, lesbian, bisexual and transgender
legal issues, seeks a full-time Executive Director.  The ED will be
the chief full-time employee, supervising the staff attorney and
other office staff as well as volunteers, engaging in public
speaking, fundraising activity, and the like.  Someone with
fundraising experience and management or legal experience is
sought.  Salary dependent on experience, and competitive benefits,
are offered, with potential for a performance-based bonus. 
Resumes, references, salary history and cover letter should be sent
to CLIP Search Committee c/o Robert Borquez, 1337 Delaware St.,
Denver CO 80203, or faxed to 303-571-1617.

International Notes

Great Britain's House of Commons voted 336-129 on June 22 to lower
the age of consent for gay men to have sex to 16, placing it on a
par with the age of consent for heterosexuals.  When Britain
decriminalized consensual gay sex in 1967, the age of consent was
set at 21.  The Conservative government of John Major had four
years ago voted to lower the age to 18.  Equalizing the age of
consent remained a major political issue for gay people in Britain,
and was one of the campaign promises to the Labour Party under the
leadership of Tony Blair, the present Prime Minister.  The measure
still has to survive consideration in the much more conservative
House of Lords, where its fate is uncertain.  _Equality Alliance
Press Release_, June 23; _London Globe and Mail_, June 23. 
However, the Commons overwhelmingly defeated a proposal to amend
the nation's Human Rights law to expressly ban anti-gay
discrimination on July 2.  _OutRage! Press Release_, July 7.

Great Britain's Defence Minister, George Robertson, told the _Daily
Telegraph_ in an interview published June 6 that the ban on
military service by gays should be lifted "in principle," and that
a provision to achieve that result might be included in the
government's Armed Forces Bill in the year 2000.  On this issue,
members of Parliament would be given a free vote, not subject to
party discipline, similar to the free vote recently held on
equalizing the age of consent for gay men with that for other
Britons.  

A British Industrial Tribunal has ruled that Air Foyle
discriminated unlawfully on the basis of sex against Kristina
Sheffield, a transsexual, who had applied for a pilot position. 
The tribunal, noting that Sheffield had served with the Royal Air
Force and as a mercenary in the Rhodesian Air Force (in both cases
as a man), concluded that she had the experience and qualifications
for the job, so should not have been rejected solely on the basis
of her sexuality.  _Daily Telegraph_, June 1.

The Canadian Government decided not to appeal a recent Ontario
court ruling that requires the government to treat same-sex
domestic partners as equivalent to spouses in administering federal
tax laws.  Subsequently, the political leadership in British
Columbia and New Brunswick announced legislation intended to extend
equal pension benefit rights to same-sex couples.  The Quebec
government has also announced plans to extend many marital rights
to same-sex couples.  Quebec Justice Minister Serge Menard
announced that the government would propose extending an array of
marital rights to "common law" couples, regardless of gender,
pointing out that a recent census showed about 20% of Quebec
household to consist of unmarried adult couples.  In Toronto, the
City Council voted 35-2 on June 4 to provide survivor pension
benefits to employees with same-sex "spouses." _Globe and Mail_,
June 5, June 19, June 23, June 30.  In Edmonton, the city and the
municipal workers union have negotiated the extension of benefits
to same-sex couples.  _Edmonton Journal_, July 8.

The parliament of Finland has removed a provision of the penal code
forbidding promotion of homosexuality, and has equalized the age of
consent for sexual activity at 16 for all persons.  (Previously, it
had been 18 for gays and lesbians.)  

Responding to international attention stimulated by internet
postings, the Swedish Ministry for International Development,
Migration and Asylum Policy has granted permanent residence status
to a gay man from Iran on the ground that he had a well-grounded
fear of persecution should he return to his homeland.

_The Australian_ reported June 12 that a gay man who was falsely
accused of sexually abusing his young son was awarded custody of
the boy on December 4, and that the mother had withdrawn her appeal
to the Family Court of Australia in _H. v. S._.  Magistrate
Mitchell in Sydney Local Court described the mother's household as
stressed, crisis-ridden and commented that hysteria was a "not
infrequently prevailing mood."  

It appears that the Netherlands may become the first country to
offer legal marriage to same-sex couples, probably shortly after
the turn of the century.  According to a report posted to the
Internet by the coordinator of the Dutch chapter of the Lesbian and
Gay Immigration Rights Task Force, a new coalition government
emerging from national elections in May has agreed to introduce a
legal civil marriage bill for same-sex couples.  Details are
unclear at this time, including whether persons who are not Dutch
citizens would be able to come to the Netherlands to marry.  (Under
existing domestic partnership registration law in the Netherlands,
one of the participants must be Dutch.)  A.S.L.

AIDS & RELATED LEGAL NOTES

Supreme Court: ADA Applies to Prisons

In a ruling of great significance for incarcerated persons with
HIV/AIDS, the U.S. Supreme Court ruled unanimously on June 15 that
the Americans With Disabilities Act applies to programs and
activities afforded to the inmates of state and local prisons. 
_Pennsylvania Department of Corrections v. Yeskey_, 118 S.Ct. 1952. 
Title II of the ADA prohibits a "public entity" from discriminating
against a "qualified individual with a disability" regarding any of
the "benefits" of "programs, services or activities" of the entity. 
The State of Pennsylvania had argued that its prisons should not be
considered an "entity" subject to the law, and that in any event
prisoners could hardly be characterized as "beneficiaries" of a
prison's services.  

In a short opinion, Justice Antonin Scalia, an ardent advocate of
applying the plain meaning of statutory language, found no basis
for the state's arguments.  The statute defines "public entity" as
"any department, agency, special purpose district, or other
instrumentality of a State or States or local government."  Nothing
could be clearer; Congress did not intend to exclude any state
operations from ADA coverage.  As to the state's other argument,
Scalia pointed out that prisons provide many programs and
activities for prisoners, and most ADA litigation involving prisons
concerns the prison's decision to exclude a prisoner with a
disability from participating in a particular program or activity. 
(Indeed, HIV+ prisoners have filed numerous suits under the ADA to
protest their exclusion from a variety of prison programs that are
routinely made available to healthy prisoners.)  As to a further
argument that application of the ADA to prisons would be
unconstitutional, Scalia noted that this issue had not been
preserved for review in the case.  (On June 22, the Court denied
certiorari in another case that would have presented the
constitutional issue.)  

In light of the Court's subsequent decision in _Bragdon v. Abbott_
holding that persons with "asymptomatic" HIV infection may be
considered disabled under the ADA, this decision takes on renewed
significance for HIV-infected prisoners and those responsible for
providing prison services to them.  A.S.L.

Federal Court Rejects Incapacity Challenge to Nureyev Will

U.S. District Judge Denny Chin (S.D.N.Y.) upheld testamentary and
inter vivos dispositions of assets by Rudolf Nureyev against a
challenge brought by some of his surviving relatives, who argued,
among other things, that Nureyev's AIDS-related illness had
destroyed his contractual and testamentary capacity at the time he
executed the documents.  _Rudolf Nureyev Dance Foundation v.
Noureeva-Francois_, 1998 U.S.Dist. LEXIS 9399 (June 25).

Rudolf Nureyev, the world-famous ballet dancer and choreographer,
died from AIDS in Paris on January 6, 1993, from AIDS-related
causes.  Nureyev entered the hospital for the last time in late
November 1992, and remained hospitalized until his death, having
deteriorated by Christmas to the point where he could no longer
speak.  Shortly before being hospitalized, he was deposed on
November 13 in connection with a pending lawsuit.  All of the
documents in question in this case were executed in the weeks and
months prior to that deposition.  The deposition, which took place
in the presence of several witnesses, showed that he was at that
time "lucid and intelligent."

Nureyev left all his American assets, totalling about $7 million,
to the Rudolf Nureyev Dance Foundation, which was established for
the sole purpose of receiving these assets and using them to
perpetuate Nureyev's memory through grants to dance organizations
and sponsoring dance events.  For tax purposes, Nureyev executed
several documents during the last year of his life to transfer
ownership of his U.S. assets to the foundation, rather than have
them pass by testamentary disposition.  Responding to threats of
lawsuits from surviving family members, the foundation filed suit
in federal court in New York, naming all Nureyev's surviving family
members as defendants, for a judicial determination as to the
ownership of the assets in question.

The family made a variety of arguments in support of its contention
that the various documents should be set aside, including mental
capacity, undue influence by Nureyev's attorney (who was designated
to head the foundation, for which he is paid an annual salary),
improper use of inter vivos gifts as testamentary substitutes, and
a contention that the property had previously been given to other
parties and so could not be given to the foundation.  The last
point was disposed of quickly when the other party, a European
foundation, disclaimed all interest in the U.S. property.  Judge
Chin found no undue influence, and found that the property
transfers prior to death were proper.

The significant point in terms of AIDS law was the finding on
mental capacity.  Chin reviewed the standards for contracting and
for making a will, the former being rather more demanding but of
prime relevance to this case because the family was challenging
both the inter vivos property transfers and the will.  Chin noted
New York case authority that a person is not to be presumed
incompetent merely because they are suffering from a disease.  In
_Feiden v. Feiden_, 542 N.Y.S.2d 860 (App.Div., 3rd Dept. 1989),
the court held that a person suffering from Alzheimer's disease
should not be presumed incompetent to execute a valid deed; it is
up to the challenger to establish incompetence.  Thus, Chin
asserted, "an individual suffering from AIDS would not be presumed
incompetent."

Applying these principles to Nureyev's case, Chin found that he was
fully competent to authorize the transfers and execute the will. 
"In the fall of 1992, in the few weeks before he executed the deeds
of gift, Nureyev was choreographing La Bayadere for the Paris
Opera.  He was working with dancers and showing them the steps.  He
was socializing with friends and continuing to lead a full life. 
He was having intelligent conversations with his friends, his
lawyer, and others.  Although he was ill and dying, he knew very
well what he was doing.  In November 1992, just a few weeks after
he signed the deeds of gift, he gave a deposition to perpetuate his
testimony. . .  Although the circumstances were extremely
difficult, he testified in a firm, strong, intelligent, and
articulate manner."  (Nureyev had signed his will the previous
spring.)

Consequently, Judge Chin ruled for the foundation and rejected all
challenges brought by the family.  A.S.L.

8th Circuit Revives Prisoner's 8th Amendment Suit on Rape
Transmission of HIV

The U.S. Court of Appeals for the 8th Circuit ruled that a district
judge erred in granting judgment as a matter of law in favor of a
prison warden on a claim that a prisoner's 8th Amendment rights
were violated in a series of incidents that allegedly included
transmission of HIV.  _Spruce v. Sargent_, 1998 WL 375404 (July 8).

Kendell Spruce was incarcerated in an Arkansas prison between
January and December of 1991.  He claims that he was repeatedly
raped by more than 20 different prisoners, at least one of whom was
HIV+ and transmitted the virus to Spruce.  Spruce filed grievances
and sought to be transferred out of circumstances where he felt
vulnerable to rape, but all to no avail, and ultimately filed an
action under 42 U.S.C. sec. 1983 against the guard captain, the
warden, and the assistant director of the state prison system.  

The warden of the prison signed various documents showing awareness
of the ordeal Spruce was undergoing, but no willingness to take
steps to protect him.  Warden Sargent testified that inmates in the
prison had to fight against sexual aggressors, and that it was up
to the inmates to protect themselves from rape.  At the close of
evidence, the trial judge granted a defense motion for judgment as
a matter of law in favor of the assistant director and the warden,
but allowed the claims against the guard captain to go to the jury,
which acquitted.  On appeal, the court affirmed the judgment in
favor of the assistant director, as well as the trial court's
denial of a motion for a new trial against the guard captain, but
reversed and remanded as to the warden.

Circuit Judge Beam reviewed the standard for finding an 8th
Amendment violation based on treatment in prison, which requires
that the prisoner show that he is incarcerated under conditions
posing a substantial risk of serious harm, and that prison
authorities exhibited deliberate indifference to the risk.  Beam
cited 8th Circuit authority to the effect that rape or sexual
assault by other prisoners is "sufficiently serious to amount to a
deprivation of constitutional dimension."  The issue is whether
Spruce presented evidence from which a jury could conclude that
Sargent was aware of this danger and proceeded with deliberate
indifference to Spruce's plight.  In this case, Beam found,
documents in evidence, together with Warden Sargent's testimony,
could lead a jury to conclude that Sargent was aware of the problem
and intentionally did nothing to protect Spruce.  Thus, the trial
judge erred in taking the case from the jury and granting judgment
in favor of Sargent, and the case against Sargent was remanded for
a new trial.  A.S.L.

Nebraska Supreme Court Rules On Mental Anguish Claims In
Fear-of-AIDS Cases

In a decision soundly reiterating the medical realities associated
with HIV infection, the Nebraska Supreme Court ruled that proof of
actual exposure to HIV is _not_ necessary to recover damages for
mental anguish and anxiety in fear-of-AIDS cases.  _Hartwig v.
Oregon Trail Eye Clinic_, 254 Neb. 777, 1998 WL 351056 (June 19). 
While recognizing that the actual exposure rule provides an
objective measure to the reasonableness and genuineness of such a
claim, the court observed that the actual exposure rule prevents
the objective quantification of the reasonableness and genuiness of
a fear-of-AIDS claim when it is impossible or impracticable to
prove or disprove that actual exposure occurred.  The case was
remanded for a new trial.

Penny M. Hartwig was stuck by two used hypodermic needles that were
negligently placed in an ordinary trash receptacle.  She
immediately took an HIV-antibody test.  Subsequent tests were to be
performed three, six and twelve months from the time of the
accident.  A negative test after 3 months indicated a 95%
probability that Hartwig was not infected with HIV, and a negative
test after 6 months indicated a 99.5% probability that Hartwig was
not infected.  Hartwig testified negative at all times.  The Clinic
was unable to ascertain positively the identity of the patient or
patients upon whom the needles were used and the needles were never
tested.

Hartwig sought damages for the anxiety and mental suffering that
resulted from her fear of contracting HIV and developing AIDS.  The
trial court prohibited Hartwig from presenting evidence regarding
her mental anguish, as the court determined that Hartwig was
required to prove actual exposure to HIV, not merely potential
exposure.  After the jury returned a $3,000 verdict for actual
physical pain and suffering from the injuries, Hartwig moved for a
new trial, and appealed denial of her motion to the state supreme
court.

Hartwig argued on appeal that Nebraska law has long recognized that
where a physical injury has been sustained, a plaintiff may recover
damages for mental suffering and anxiety reasonably resulting from
such physical injury.  The Clinic argued the majority view in
fear-of-AIDS cases, the rule that "actual exposure" to HIV must be
established to recover for mental anguish and anxiety.  The court
noted that this rule was popular when applied to such cases pleaded
as negligent infliction of emotional distress claims but not in
cases brought on the theory of parasitic damages, i.e., damages
occasioned by anxiety specifically due to a reasonable fear of a
future harm attributable to an actual physical injury caused by the
defendant's negligence.  Nonetheless, the court relied upon several
fear-of-AIDS cases pleaded as negligent infliction of emotional
distress causes for direction, since those jurisdictions that have
required an actual exposure to HIV as a prerequisite to recovery
for mental distress damages do so in order to objectively quantify
the reasonableness of a plaintiff's fear of contracting AIDS.

After lengthy discussion of many fear-of-AIDS cases, Justice
Gerrard cited a "logical flaw" common to all: the failure to
recognize that modern medicine treats a _potential_ exposure to HIV
virtually the same as it treats an _actual_ exposure, until a blood
test reveals, to a certain statistical level of confidence, that
such person is HIV-negative.  "We think it inconsistent to suggest
that during the period of time in which such person is required by
competent medical advice to conduct his or her life as though he or
she were HIV infected, the law would conclude that it is
unreasonable, speculative, fanciful, or whimsical for such person
to have a real and intense fear that he or she is HIV positive and
may suffer a slow, agonizing death from AIDS."  Resting its
reasoning upon cases where the actual exposure rule was rejected,
the court recognized that the actual exposure rule is antithetical
to the quantification of the reasonableness and genuineness of
one's claimed fear of AIDS in circumstances where it is
impracticable or impossible to ascertain whether the needle (or
other medically sufficient channel of transmission) was
contaminated. 

Thus, Hartwig's fear of acquiring HIV was reasonable, even though
no actual channel of transmission was identified, because requiring
Hartwig to allege actual transmission would unfairly punish her for
lacking the requisite information to do so.  The court concluded
that Hartwig may adduce proof and potentially recover damages for
mental anguish from the time of possible exposure to that time when
she knows or should know that she is not infected.  _K. Jacob
Ruppert_

6th Circuit Rejects Challenge to Medical Care of HIV+ Prisoner

In an unpublished disposition, the U.S. Court of Appeals for the
6th Circuit ruled May 27 against a claim by Keith M. Owens, an HIV+
Kentucky state prisoner, that the medical care afforded in his
prison violates statutory and constitutional rights.  _Owens v.
O'Dea_, 1998 WL 344063.  The court affirmed the district court's
grant of summary judgment to the defendant prison officials.

Owens was diagnosed HIV+ in 1988, and began taking AZT sometime
between 1988 and 1990.  This treatment continued after he was
incarcerated in May 1993 in the Kentucky State Reformatory.  On
Aug. 11, 1994, Owens was transferred to the Eastern Kentucky
Correctional Complex, "along with a small supply of Retrovir [AZT],
which was exhausted by August 19, 1994."  Owens had trouble getting
to see a doctor, but finally was examined by the institution's in-
house physician, Dr. Ameji, on September 7, 1994.  Ameji drew
blood, and found that Owens had a CD4 count of 560 (at the low end
of the "normal" range) and was asymptomatic.  Concerned about
potential side-effects of AZT, Ameji decided not to renew Owens'
prescription, but continued to monitor his CD4 count, and renewed
the AZT treatment on March 27, 1995.  Owens continues at a "normal"
CD4 level and has not developed symptomatic HIV disease.

Owens filed suit in November 1994, claiming violations of 42 USC
sec. 1983, the Americans With Disabilities Act, the Rehabilitation
Act, and other general federal civil rights statutes.  He claimed
that the prison system was violating his rights based on Ameji's
refusal to prescribe AZT for him for more than 6 months, contending
both that he was being subjected to cruel and unusual punishment
and unlawful discrimination under federal statutes.  Owens sought
an order placing him under the care of an AIDS specialist,
prohibiting disclosure of his HIV status without his consent, and
requiring the prison system to comply with the ADA.  The district
court granted summary judgment in favor of the defendants.

In this decision issued prior to the Supreme Court's ruling in
_Pennsylvania Dept. of Corrections v. Yeskey_, 118 S.Ct. 1952 (June
15, 1998), and _Bragdon v. Abbott_, 1998 WL 332958 (June 25, 1998),
the court of appeals abstained from expressing a view on whether
the ADA and Rehabilitation Act applies to prisons and whether an
asymptomatic HIV+ prisoner is an "individual with a disability"
under those statutes.  Instead, Judge Ryan assumed that the
statutes would apply, but concluded that Owens had not stated a
claim.  "There is no evidence that Owens was denied medical care,
much less denied medical care because of his HIV status," wrote
Ryan, who also noted that Owens was not entitled to "reasonable
accommodation" under ADA because that was a Title I (employment)
concept rather than a Title II (services offered by public
entities) concept.  Rather, Title II of ADA requires that public
entities modify their services if necessary to make them accessible
to persons with disabilities, and Ryan saw no need for modification
in this case.

Turning to Owens' 8th Amendment cruel and unusual punishment claim,
Ryan observed that a plaintiff must establish prison conduct that
involves more than an ordinary lack of due care.  The plaintiff
must show, in a medical treatment case, both that the deprivation
imposed on him is objectively serious and that the prison officials
proceeded with deliberate indifference to his well-being.  Indeed,
Ryan pointed to U.S. Supreme Court precedent establishing that the
plaintiff must show that he or she is suffering from "unnecessary
and wanton infliction of pain" in order to prevail on a claim that
the prison is imposing cruel and unusual punishment.  "An alleged
inadvertent failure to provide adequate medical care, while perhaps
evidence of medical malpractice, does not evidence sufficiently
harmful acts or omissions to state a cognizable claim" under the
8th Amendment, Ryan asserted, finding that "there was no evidence
that medical treatment was deliberately or indifferently withheld." 
A.S.L.

Missouri Supreme Court Rejects Challenges to Criminal Transmission
Statute

After separate jury trials, Charles Mahan and Sean Sykes were
convicted of creating a grave and unjustifiable risk of infecting
another with HIV.  Both convictions were affirmed on appeal by the
Supreme Court of Missouri on June 16 in _State v. Mahan_, 1998 WL
312752.

In Missouri, it is a class D felony for a person knowingly infected
with HIV to deliberately create a grave and unjustifiable risk of
infecting another person with HIV through sexual contact.  Prior to
being charged under the statute, a known HIV+ individual would
receive Level II counseling.  Level II counseling is administered
to an HIV+ individual by a public health counselor when officials
receive reports that the person may be exposing people to the
virus.  During the session, the individual is told that he or she
must tell his or her partners that they are infected with HIV.  In
addition, counseling is giving on safer sex practices, including
the proper use of condoms, and the counselees are given a pamphlet
informing them that criminal charges can be filed against them if
they create a risk of infecting others with HIV.

Sykes received Level II counseling on two occasions.  During both
sessions he indicated that he understood that he had to tell his
sexual partners about his infection and that he had to wear condoms
when he had sex.  During the second counseling session Sykes told
the counselor that he did not like to wear condoms and that they
often broke during intercourse.  He apparently told the counselor
that his penis was too big and he could not wear them.  The
counselor then made a fist and stretched the condom over the fist
to show that the condom would fit on any penis.  Despite the
counseling, Sykes had unprotected sex with Jamie Walker, a 16-year-
old girl, on no less than four occasions.  Sykes never informed
Walker of his HIV status and Sykes never used a condom.  In
addition, Sykes entered into a long term relationship with Jana
Brent.  They moved in together and had regular sexual intercourse
over a period of a year and a half.  Brent testified that they
occasionally used condoms, but usually did not.  Brent further
testified that Sykes never told her he was HIV+.  Brent has since
tested positive for HIV. 

Charles Mahan also received Level II counseling after finding out
he was HIV+.  Despite the counseling, Mahan met Bruce Stuebner and
engaged in anal sex with Stuebner over 20 times without using a
condom.  Prior to their first sexual experience, Steubner asked
Mahan if he was HIV+ and Mahan said no.  Stuebner has since tested
positive for HIV.

Sykes and Mahan were convicted of creating a grave and
unjustifiable risk of HIV transmission.

On appeal, both Sykes and Mahan challenged the constitutionality of 
the statute, arguing that it was overbroad since, as written, it
could be construed to outlaw constitutionally protected activity,
including heterosexual intercourse between an HIV+ individual and
a willing and informed partner, and childbirth by an HIV+ mother. 
The court found that since neither defendant had engaged in these
activities, they lacked standing to challenge the statute on
overbreadth grounds.  

Mahan also challenged the statute on vagueness grounds.  He argued
that it was unclear what constituted a grave and unjustifiable risk
of HIV infection.  The court found this argument unpersuasive, 
especially in light of the counseling that both defendants had
received.  Both defendants alleged that the trial courts erred in
permitting the prosecution to put in evidence that they were HIV+.
Both defendants argued that this information was protected by the
confidentiality laws and could not be admitted in court.  The court
found that the exception for public employees who need to know in
connection with their public duties was sufficient to allow
evidence of their status to be admitted in court.

The final challenges were evidentiary in nature.  First, Sykes
argued that testimony regarding his failure to respond to a letter
from Jamie Walker was inadmissable because of his right to remain
silent after his arrest.  Post-arrest silence cannot usually be
used against you in court, but the court found that where the
silence was in response to a private inquiry and not one from a
public official, it was admissible.  Finally, Sykes challenged the
chain of custody of his blood samples when they were tested for
HIV.  The court found that there was sufficient evidence beyond the
tests themselves, including his participation in Level II
counseling, that proved his HIV status, so even if the chain of
custody were not established, it was not prejudicial to Sykes. 
Both convictions were affirmed.  <M>Todd V. Lamb_

Federal Court Upholds Discharge of PWA for Sexual Harassment of Co-
Worker

A person with AIDS who was terminated after an alleged sexual
proposition to a coworker was not discriminated against on the
basis of disability, a federal district court held. _Monroe v.
Wal-Mart Stores, Inc._, 1998 WL 299452 (N. D. Ill. May 28). 

Wal-Mart employed Curtis Monroe, a person with AIDS.  He requested
and received at least two accommodations of his disability:
changing his work hours, and inside work.  When a co-worker alleged
that Monroe propositioned him for sex, a supervisor investigated. 
Although Monroe denied making the pass, the supervisor found the
co-worker more credible and terminated Monroe.  

After a bench trial, the court found that Wal-Mart had successfully
established that its reason for terminating Monroe, his alleged
sexual harassment of the co-worker, was a legitimate
non-discriminatory reason.  Working in the employer's favor in the
court's analysis of whether the stated reason for the termination
was pretextual, was that the Wal-Mart had not treated Monroe badly,
and in fact had accommodated him, and had responsibly investigated
the alleged sexual harassment.  _Dirk Williams_

HIV+ Prisoner Can Pursue Privacy Suit Against N.Y.C. Prison Guard

U.S. District Judge Harold Baer, Jr., rejected a motion to dismiss
an HIV-confidentiality suit brought by a prisoner against a New
York city corrections officer who "outed" her as HIV+ to several
other inmates.  _Colon v. Arrabito_, 1998 WL 305636 (S.D.N.Y., June
9).

Elizabeth Colon, then an inmate at Singer Detention Center, had
been careful to keep her HIV status confidential to avoid problems
with other inmates and guards.  She went to the medication window
on April 8, 1997, to pick up her prescribed dosage of AZT, which
she quickly put in her pocket.  She claims that Corrections Officer
Arrabito then ordered her to show him her medication.  She told him
it was "very private and confidential," but he was insistent.  When
she held out the AZT container cupped in her hand, he "snatched" it
from her and "started waving it around for all to see."  (Several
other inmates were in the area and could see what was going on.) 
When she attempted to get it back, the officer "would pull it back
all the while laughing."   Frustrated, Colon began to cry and
finally Arrabito returned her medication.

Representing herself pro se, Colon filed suit alleging violation of
her constitutional right of privacy by Officer Arrabito.  Arrabito,
represented by the New York City law department, moved to have the
case dismissed, claiming that as a corrections officer he enjoys
qualified immunity, and that he had acted reasonably under the
circumstances.  Arrabito claimed that he had to see the medication
to make sure that Colon did not have contraband drugs.

Judge Baer determined that Colon could sue a corrections officer if
she was asserting a clearly established right and if the officer's
conduct was not objectively reasonable under the circumstances.  In
this case, Baer noted, several federal courts have ruled that
inmates have a right of privacy and confidentiality concerning
their HIV status, based on a 1978 U.S. Supreme Court decision,
_Whalen v. Roe_, 429 U.S. 589, which recognized that the
constitution protects "the individual interest in avoiding
disclosure of personal matters" by government officials.  Baer
identified several federal district cases in New York since the
beginning of the AIDS epidemic that have specifically held that
HIV-positive inmates are protected by the constitutional right of
privacy from "unwarranted disclosure" of their HIV status, and
noted that the U.S. Court of Appeals for the 2nd Circuit has ruled
on the more general question that individuals have a
constitutionally protected privacy interest in their HIV status. 
See _Matter of Doe v. City of New York_, 15 F.3d 264 (2nd Cir.
1994).

In addition, addressing the "objectively reasonable conduct" point,
Baer had harsh words for Office Arrabito's alleged misconduct on
this occasion.  "If the allegations are true," he wrote, "Officer
Arrabito's conduct can only be described as infantile,
reprehensible and deliberately designed to reveal Ms. Colon's HIV
status in violation of her constitutional right to privacy." 
Citing Feodor Dostoyevsky's statement in _The House of the Dead_
that the test of civility in a society is the manner in which
government treats incarcerated citizens, Baer commented that "this
conduct certainly plays havoc with that concept," as the defendant
had "robbed the plaintiff of the little dignity remaining to
incarcerated men and women."

Perhaps now that Colon's claim will receive a trial before Judge
Baer, the City of New York law department may consider settling the
case and offering her a belated apology, as well as providing
appropriate training on HIV confidentiality to its prison guards.
A.S.L.

Allegations Found Insufficient for "Perceived Disability" Suit
Under ADA

A gay man's attempt to use the Americans With Disabilities Act as
a means to redress for alleged employment discrimination under a
"perceived disability" theory failed due to insufficient factual
allegations, according to a June 30 opinion by U.S. District Judge
I. Leo Glasser in _DeFilippo v. GMRI, Inc._, 1998 WL 353983
(E.D.N.Y.).

Jeffrey DeFilippo began working as a waiter at the defendant's Red
Lobster Restaurant in Hicksville, N.Y., in April 1993.  According
to DeFilippo's complaint, in August 1995 he made the mistake of
telling the assistant manager that he had recently tested negative
for HIV, from which the manager apparently concluded that DeFilippo
was gay and began, together with other employees, to subject him to
on-going harassment.  DeFilippo claims that when he contacted the
regional director for defendant GMRI, owner of the Red Lobster
chain, he was told that "we don't want to know about your sexual
preference."  The harassment allegedly culminated on November 24,
1995, when the refusal of a co-worker to assist DeFilippo provoked
him into swearing in front of customers, for which he was
discharged.  

DeFilippo filed a disability discrimination claim with the New York
State Division of Human Rights, asserting that he suffered
discrimination due to the employer's perception that he was at risk
for AIDS.  After the Division dismissed his charge, he filed suit
under the ADA and the Rehabilitation Act, sec. 504, appending a
state law emotional distress claim.  The defendant moved for
summary judgment.

Judge Glasser found that many of DeFilippo's allegations were based
on hearsay that would be inadmissable in court and thus could not
be considered as true for purposes of deciding a summary judgment
motion.  Ultimately, he concluded that DeFilippo had not presented
any potentially admissible evidence "that defendants believed
plaintiff to have an impairment at all much less that defendants
believe plaintiff to have an impairment that substantially limits
one or more of his major life activities."  

Further, Glasser found that GMRI consistently discharged staff
members who swore in the presence of customers, so there was no
basis for drawing an inference of discriminatory motive from the
facts of DeFilippo's discharge.  The Rehabilitation Act claim was
dismissed on jurisdictional grounds (GMRI is not a federal
contractor or funding recipient), and the emotional distress claim
was previously dismissed at oral argument of the motion.  A.S.L.

N.Y. Appellate Division Finds "Special Circumstances" May Revive
AIDS-Phobia Claim

New York courts have generally been tough on AIDS phobia claims,
requiring that plaintiffs allege with specificity an actual
exposure to HIV in order to recover for emotional distress due to
fear of contracting AIDS.  However, in _Fosby v. Albany Memorial
Hospital_, 1998 WL 356905 (July 2), the Appellate Division, 3rd
Department, unanimously reversed the Supreme Court's dismissal of
an AIDS phobia claim, finding that "special circumstances" might
exist that would make the defendant legally responsible for the
plaintiff's fears.

According to the complaint, while a patient at the defendant
hospital Beth Fosby suffered a needlestick injury while reaching
for a blanket.  She removed the needle and gave it to a nurse, who
told her that she could get a copy of the incident report, which
would indicate how the needle was previously used.  However, the
hospital refused to provide the report, instead advising Fosby to
get HIV tests at three, six and 12 month intervals.  She has
consistently tested negative, but sued for emotional distress due
to her fear, based on the hospital's testing advice, that she might
have contracted HIV.  The hospital waited 18 months before sending
the needle to a lab for testing, which revealed the needle had not
previously been used.  Supreme Court dismissed Fosby's suit on the
ground that she had not alleged actual exposure to HIV.

In a short opinion reversing and remanding the case under the
"special circumstances" exception to the actual exposure rule,
Justice James White asserted that the "defendant's unexplained
refusal to provide plaintiff with any information regarding the
needle may well constitute a `special circumstance' given
plaintiff's exposure to a scientifically accepted means of
transmission of HIV together with defendant's unreasonable
withholding of information regarding the prior use of the needle
and whether the needle had been, or could have been, tested for the
presence of blood or HIV antibodies."  A.S.L.

N.Y. Court Finds Transfusion Suit Against City Agency Timely

Even though a New York statute requires that lawsuits for personal
injuries be commenced against municipal corporations within 15
months of the accrual of the claim, an HIV-transmission suit
alleging negligence in screening donated blood filed 19 months
after the transfusion was timely due to another state statute
establishing a "discovery" rule for accrual in negligence cases. 
_Raymond v. New York City Health & Hospitals Corp._, NYLJ,
7/9/1998, p.29, col.1 (N.Y.Sup.Ct., Queens County, LaTorella, J.). 


Plaintiff Veronique Raymond received her transfusion during surgery
on January 21, 1994.  On March 1, 1995, a public health counselor
affiliated with the hospital called her to state that she had
tested HIV+.  She filed a notice of claim against the Health &
Hospitals Corporation on May 17, 1995, alleging that the defendant
was negligent in screening blood used for transfusions, and filed
her lawsuit on August 18, 1995.  The defendant, refusing to comply
with the plaintiff's discovery requests, responded to plaintiff's
motion to compel discovery by cross-moving to dismiss on timeliness
grounds.

Although N.Y. Civ. Prac. L. & Rules sec. 214-c(3) provides that the
time for filing a negligence claim "caused by the latent effects of
exposure to any substance or combination of substances, in any
form, upon or within the body" begins to run "on the date of
discovery of the injury by the plaintiff or on the date when
through the exercise of reasonable diligence the injury should have
been discovered, whichever is earlier," the defendant argued that
this provision does not apply to actions for medical malpractice,
as expressly stated in subsection c(5).  Rejecting the defendant's
argument, Justice LaTorella found that although the plaintiff had
described her complaint as a medical malpractice complaint, it was
in reality a claim of ordinary negligence in the collection and
screening of blood, rather than a claim of malpractice in providing
medical treatment.  Denying the defendant's motion for summary
judgment, the court ordered the defendant to comply with the
plaintiff's disputed discovery requests.  A.S.L.

Victoria (Australia) Supreme Court Requires Showing of Probability
of Death in HIV Transmission Case

Appellant Samuel Mutemeri succeeded in his appeal from conviction
of recklessly engaging in conduct that placed another in danger of
death, for having unprotected sexual intercourse while being HIV
positive.  _Mutemeri v. Cheesman_, No. 8332 of 1997 (Victoria
Supreme Court, March 17, 1998).

A magistrate's court below found that the appellant knew of his HIV
positive status, was counselled as to the risk of transmitting HIV
by unprotected sex, yet proceeded to have unprotected intercourse
with a "Ms. AB" on 12 occasions with the belief that his acts would
place Ms. AB in danger of death and with disregard to such a
foreseen outcome.  

Mutemeri appealed the conviction based on issues of law.  First, he
contended that in order to establish that he acted recklessly, it
would have to be proven that he foresaw that a probable consequence
of his sexual activity would be the death of AB.  The Supreme Court
of Victoria, based on it's analysis of the legislative history and
application of the statutory general endangerment offence, affirmed
the lower court's ruling that Mutemeri satisfied the subjective
mens rea requirement by his intention to engage in intercourse with
AB, and the objective requirement that a "reasonable man" would
realize that he was placing another in danger of death.  The
foreseen probable consequence the appellant recklessly disregarded
was the danger of death, rather than death.

Mutemeri also contended that the magistrate below could not have
found that his acts placed AB in danger of death because no
evidence was offered that contracting HIV was life endangering, and
the magistrate was not entitled to take judicial notice of this
fact.  While the Supreme Court agreed that the life endangering
property of HIV was notorious enough for the court to take judicial
notice thereof, it nevertheless concluded that the magistrate could
not have found beyond a reasonable doubt that Mutemeri's acts
exposed AB to "more than a mere possibility" of death without
evidence.  The court points to expert medical testimony to the
effect that the risk of male to female transmission of HIV by
unprotected sex is between 1 in 667 and 1 in 2,000.  Further, no
evidence was offered as to the probability of AB's death in the
event that she did contract HIV from Mutemeri.

Interestingly, although the Supreme Court set aside the judgment
below convicting Mutemeri, it declined his application for an order
prohibiting publication of his name and identity.  Mutemeri deposed
to the facts that the magistrate's court had refused such an order,
that he had been identified in the newspaper and on television as
having HIV or AIDS, and that his personal life, employment, and
residential tenancy had suffered as a result. The Supreme Court,
apparently responsive to the arguments of solicitors for the Herald
and Weekly Times Ltd. and David Syme Ltd., decided that the
protection of public health from Mutemeri's "reprehensible conduct.
. . (whatever its criminality)" and the public interest in the open
conduct of trials outweighed Mutemeri's interest in "personal
liberty and privacy."  _Mark Major_

AIDS Litigation Notes

_Schieben v. Heartland Blood Centers of Aurora_, pending in Cook
County, Illinois, Circuit Court, was settled for $500,000 on June
10.  _Chicago Tribune_, June 11.  Florence Schieben, 77, claimed
she contracted HIV from a tainted transfusion during 1994 hip
replacement surgery at a hospital in Hammond, Illinois, and alleged
that the blood center was negligent in not discarding donated blood
that had yielded an ambiguous screening test result.  Her infection
was discovered when the blood donor came in for a second donation
and definitely tested positive, resulting in a look-back at the use
of his prior donations and identifying Ms. Schieben.

After a four day trial, a jury in Texas's 348th District Court
rejected a negligence claim brought by Khristol Watson against Drs.
Muddamalle Augustine, Steven Sotman, Daniel Barbaro, and National
Psychopharmacology Laboratories on June 4.  Watson received an HIV+
test result in 1991, but subsequently discovered that she was not
infected with HIV after having undergone a hysterectomy,
specifically undertaken because she believed she was infected and
had decided not to have children as a result.  She sought damages
of $38 million.  The jury vote was 11-1 against her.  _Austin
American-Statesman_, June 7.

California Superior Court Judge Bruce Clark has sentenced Sean De
France, an HIV+ man age 40, to 165 years in prison for sexually
molesting a 15-year old boy.  Originally charged with more than a
dozen counts of molestation, De France pled guilty to one count,
but under the state's "three strikes and your out" sentencing law,
the judge sentenced him to six consecutive terms of 25 years to
life.  The young victim made a videotape that was played at the
sentencing hearing, in which he said: "Sometimes I wonder if I'm
supposed to be here alive or if I'm supposed to be dead, 6 feet
under the ground."  The youth also stated that De France's
punishment should be based on the film "Braveheart - torture him
and tear his insides out."  There is no indication in the press
report of this case that the youth has tested positive for HIV. 
_Los Angeles Daily News_, June 27. A.S.L.

AIDS Legislative Notes

In a last-minute suprise to gay lobbyists, the Democratic
leadership of the N.Y. State Assembly decided to allow a floor vote
on a measure to require name reporting and contact-tracing for
those who test HIV+ in the state, although anonymous test centers
will still be allowed to operate without reporting requirements. 
The measure, which has previously passed the Republican-controlled
Senate, was overwhelmingly approved in the Assembly and was
awaiting the governor's signature at our press deadline.

Colorado Governor Roy Romer vetoed S.B. 137, a bill that he found
would have a "chilling effect" on confidential HIV testing in the
state.  Under the bill, all persons charged with prostitution or
other sex offenses involving penetration would have had to submit
to HIV testing and the results turned over to prosecutors, so that
they could go after "repeat offenders."  _Rocky Mountain News_,
June 6.

Alaska Governor Tony Knowles vetoed a bill that would have made it
a felony to knowingly spread HIV.  The bill would have specifically
made it a crime to sell tainted blood or for a person who knows he
is HIV+ to engage in sex with somebody without disclosing his HIV
status.  Knowles explained the veto by saying that the bill would,
in effect, "criminalize a disease."  He stated that existing laws
against reckless endangerment and assault could be used to deal
with individuals who deliberately spread the virus.  _Chicago
Tribune_, June 21. A.S.L.

AIDS Law & Society Notes

The American Bar Association's Commission on Mental and Physical
Disability Law issued a study on June 17 showing that the
overwhelming majority of employees who file discrimination claims
under the Americans With Disabilities Act are unsuccessful in the
adjudication of their claims.  The study showed that 92 percent of
the employment cases adjudicated in court since the ADA went into
effect in 1992 have been won by the employer, as have been 86
percent of the cases resolved by the EEOC.  The Commission called
for changes in the law to remove some of the most significant
evidentiary roadblocks.  (We have noted in this publication that
decision by several of the federal circuit courts have seriously
reduced the potential scope of the law in redressing employment
problems encountered by persons with disabilities.)  _National Law
Journal_, June 29.

The Clinton Administration's decision not to fund needle-exchange
programs evidently did not go far enough for some conservative
members of Congress, who were reportedly planning to attach an
amendment to future health appropriations measures banning the use
of federal funds for needle exchange.

The International AIDS Conference in Zurich generated more gloom
than light, as researchers reported on a surge of new HIV infection
in the Third World, growing signs of HIV developing resistance in
persons taking the new cocktail treatments, and doubts about the
ability to produce an effective vaccine anytime soon. A.S.L.

AIDS International Notes

A Cyprus court found an HIV+ waiter guilty of infecting two Cypriot
women with HIV on June 5.  Andreas Michael denied that he had
negligently transmitted the virus by having unprotected sex with
the two women without informed his partners of his HIV status, but
the court found him guilty; he faces up to two years in prison. 
_Agence France-Presse_, June 5. A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES:

Arend, Patrice S., _Defamation in an Age of Political Correctness:
Should a False Public Statement that a Person is Gay be
Defamatory?_, 18 No. Ill. U. L. Rev. 99 (Fall 1997).

Beck, Hon. Phyllis W., _The Metamorphosis of the Family_, 7 Temple
Pol. & Civ. Rts. L. Rev. 251 (Spring 1998).

Brauch, Jeffrey A., _Municipal Activism v. Federal Law: Why ERISA
Preempts San Francisco-Style Domestic Partnership Ordinances_, 28
Seton Hall L. Rev. 925 (1998) (The author is a professor at Regent
University Law School, a Christian-fundamentalist institution).

Bricklin, Shoshana, _Legislative Approaches to Support Family
Diversity_, 7 Temple Pol. & Civ. Rts. L. Rev. 379 (Spring 1998).

Bruce, Teresa M., _Pornophobia, Pornophilia, and the Need for a
Middle Path_, 5 Amer. U. J. Gender & L. 393 (Spring 1997).

Burris, Scott, _Gay Marriage and Public Health_, 7 Temple Pol. &
Civ. Rts. L. Rev. 417 (Spring 1998).

Cain, Patricia A., _The Future of Feminist Legal Theory_, 11 Wis.
Women's L. J. 367 (1997).

Cain, Patricia A., _Lesbian Perspective, Lesbian Experience, and
the Risk of Essentialism_, 2 Va. J. Soc. Pol. & L. 43 (1994).

Cain, Patricia A., _Taxing Lesbians_, 6 S.Cal. Rev. L. & Women's
Studies 471 (1997).

Coles, Matthew, _The Meaning of_ Romer v. Evans, 48 Hastings L.J.
1343 (Aug. 1997) (why _Romer v. Evans_ is important, from the
ACLU's top gay rights lawyer).

Colker, Ruth, _Sexual Orientation: Militarism, Moralism, and
Capitalism_, 48 Hastings L.J. 1201 (Aug. 1997).

Currah, Paisley, _Defending Genders: Sex and Gender Non-Conformity
in the Civil Rights Strategies of Sexual Minorities_, 48 Hastings
L.J. 1363 (Aug. 1997)

Dark, Okianer Christian, _Incorporating Issues of Race, Gender,
Class, Sexual Orientation, and Disability Into Law School
Teaching_, 32 Willamette L. Rev. 541 (1996).

Eskridge, William N., Jr., _Three Cultural Anxieties Undermining
the Case for Same-Sex Marriage_, 7 Temple Pol. & Civ. Rts. L. Rev.
307 (Spring 1998).

Eskridge, William N., Jr., and Sheila Rose Foster, _Discussion of
Same-sex Marriage_, 7 Temple Pol. & Civ. Rts. L. Rev. 329 (Spring
1998).

Feldblum, Chai R., _A Progressive Moral Case for Same-sex
Marriage_, 7 Temple Pol. & Civ. Rts. L. Rev. 485 (Spring 1998).

Foster, Sheila Rose, _The Symbolism of Rights and the Costs of
Symbolism: Some Thoughts on the Campaign for Same-sex Marriage_, 7
Temple Pol. & Civ. Rts. L. Rev. 319 (Spring 1998).

Glennon, Theresa, _Binding the Family Ties: A Child Advocacy
Perspective on Second-Parent Adoption_, 7 Temple Pol. & Civ. Rts.
L. Rev. 255 (Spring 1998).

Goishi, Miye A., _Unlocking the Closet Door: Protecting Children
From Involuntary Civil Commitment Because of Their Sexual
Orientation_, 48 Hastings L.J. 1137 (Aug. 1997).

Goldfarb, Sally F., _Family Law, Marriage, and Heterosexuality:
Questioning the Assumptions_, 7 Temple Pol. & Civ. Rts. L. Rev. 285
(Spring 1998).

Greenstein, Saul, Oncale v. Sundowner Offshore Services_: Will
Sexual Identity Continue to Regulate Recovery in Title VII Same-Sex
Sexual Harassment Cases_, 6 Circles 35 (1998).

Hellman, Deborah, _Two Types of Discrimination: The Familiar and
the Forgotten_, 86 Calif. L. Rev. 315 (March 1998)(a theory of
equal protection that explains why the Supreme Court's normal
analysis was stymied in _Romer v. Evans_).

Hirshman, Linda, _Hard Bargains: The Politics of Heterosexuality_,
55 Wash. & Lee L. Rev. 185 (1998) (for empathetic _Law Notes_
readers: the problems of non-gays).

Hixson, Thomas S., _Public and Private Recognition of the Families
of Lesbians and Gay Men_, 5 Amer. U. J. Gender & L. 501 (Spring
1997).

Huff, Leslye M., _Deconstructing Sodomy_, 5 Amer. U. J. Gender & L.
553 (Spring 1997).

Knauer, Nancy J., _Domestic Partnership and Same-Sex Relationships:
A Marketplace Innovation and a Less than Perfect Institutional
Choice_, 7 Temple Pol. & Civ. Rts. L. Rev. 337 (Spring 1998).

Knauer, Nancy J., _Forward to Symposium: Constructing Family,
Constructing Change: Shifting Legal Perspectives on Same-sex
Relationships_, 7 Temple Pol. & Civ. Rts. L. Rev. 245 (Spring
1998).

Kogan, Terry S., _Transsexuals and Critical Gender Theory: The
Possibility of a Restroom Labeled "Other"_, 48 Hastings L.J. 1223
(Aug. 1997).

Kwan, Peter, _Jeffrey Dahmer and the Cosynthesis of Categories_, 48
Hastings L.J. 1257 (Aug. 1997).

Neal, Odeana R., _Writing Rules Does Not Right Wrongs_, 7 Temple
Pol. & Civ. Rts. L. Rev. 303 (Spring 1998).

O'Brien, Raymond C., _Single-gender Marriage: A Religious
Perspective_, 7 Temple Pol. & Civ. Rts. L. Rev. 429 (Spring 1998).

Polikoff, Nancy D., _Resisting "Don't Ask, Don't Tell" in the
Licensing of Lesbian and Gay Foster Parents: Why Openness Will
Benefit Lesbian and Gay Youth_, 48 Hastings L.J. 1183 (Aug. 1997).

Robson, Ruthann, _Beginning From (My) Experience: The Paradoxes of
Lesbian/Queer Narrativities_, 48 Hastings L.J. 1387 (Aug. 1997).

Rubenstein, William B., _In Communities Begin Responsibilities:
Obligations at the Gay Bar_, 48 Hastings L.J. 1101 (Aug. 1997)
(what obligations do lesbian/gay/bisexual/transgendered lawyers owe
to the queer communities?).

Scholinski, Daphne, _After-Wards_, 48 Hastings L.J. 1195 (Aug.
1997)(personal testimony about the impact of psychiatric
incarceration on lesbian/gay/bi/trans youth).

Pouncy, Charles R.P., _Marriage and Domestic Partnership:
Rationality and Inequality_, 7 Temple Pol. & Civ. Rts. L. Rev. 363
(Spring 1998).

Rahdert, Mark C., _Same-Sex Relationships: A Constitutional
Commentary_, 7 Temple Pol. & Civ. Rts. L. Rev. 495 (Spring 1998).

Renee, Leane, _Impossible Existence: The Clash of Transsexuals,
Bipolar Categories, and Law_, 5 Amer. U. J. Gender & L. 343 (Spring
1997).

Sera, Jean M., _Surrogacy and Prostitution: A Comparative
Analysis_, 5 Amer. U. J. Gender & L. 315 (Spring 1997).

Strasser, Mark, _For Whom_ Bell_ Tolls: On Subsequent Domiciles'
Refusing to Recognize Same-Sex Marriages_, 66 U. Cin. L. Rev. 339
(Winter 1998).

Valdes, Francisco, _Queer Margins, Queer Ethics: A Call to Account
for Race and Ethnicity in the Law, Theory, and Politics of "Sexual
Orientation"_, 48 Hastings L.J. 1293 (Aug. 1997).

Walsh, Walter J., _The Fearful Symmetry of Gay Rights, Religious
Freedom, and Racial Equality_, 40 Howard L. J. 513 (Winter 1997)
(Commentary on the Georgetown University Gay Student Organization
litigation by former law clerk of Judge Julia Mack, author of the
opinion for the court).

Zalesne, Deborah, _When Men Harass Men: Is It Sexual Harassment?_,
7 Temple Pol. & Civ. Rts. L. Rev. 395 (Spring 1998).

_Student Notes & Comments:_

Allen, Beth A., _Same-Sex Marriage: A Conflict-of-Laws Analysis for
Oregon_, 32 Willamette L. Rev. 619 (1996).

Barrage, Rafic H., Reno v. American Civil Liberties Union_: First
Amendment Free Speech Guarantee Extended to the Internet_, 49
Mercer L. Rev. 625 (Winter 1998).

Brannen, Jennifer R., _Unmarried With Privileges? Extending the
Evidentiary Privilege to Same-Sex Couples_, 17 Rev. of Litigation
311 (Spring 1998).

Butler, Charles J., _The Defense of Marriage Act: Congress's Use of
Narrative in the Debate Over Same-Sex Marriage_, 73 N.Y.U. L. Rev.
841 (June 1998).

George, Melisa C., _Because of Sex: Same-Sex Sexual Harassment
Claims Under Title VII of the Civil Rights Act of 1964_, 22 L. &
Psych. Rev. 251 (Spring 1998).

Gobla, Kimberly A., _The Infeasibility of Federal Internet
Regulation: The Online Parental Control Act of 1996 -- A Reaction
to the Communications Decency Act of 1996_, 102 Dickinson L. Rev.
93 (Fall 1997).

Goles, David S., Smith v. Fair Employment and Housing Commission_:
Religious Freedom and Anti-discrimination Laws Square Off in the
Landlord/Tenant Setting_, 18 No. Ill. U. L. Rev. 197 (Fall 1997).

McGuire, John J., _The Sword of Damocles is Not Narrow Tailoring:
The First Amendment's Victory in_ Reno v. ACLU, 48 Case Wes. Res.
L. Rev. 413 (Winter 1998).

Patten, James M., _The Defense of Marriage Act: How Congress Said
"No" to Full Faith and Credit, and the Constitution_, 38 Santa
Clara L. Rev. 939 (1998).

Pickhardt, Jonathan, _Choose or Lose: Embracing Theories of Choice
in Gay Rights Litigation Strategies_, 73 N.Y.U. L. Rev. 921 (June
1998).

Pinski, Gregory G., _Civil Rights -- Federal Remedies -- The Eighth
Circuit Recognizes Same-Sex Harassment Under Title IX and Adopts
the "Knew or Should Have Known Standard" for Scholl District
Liability_ - Kinman v. Omaha Public School District_, 94 F.3d 463
(8th Cir. 1996)_, 74 N. Dak. L. Rev. 141 (1998).

Shuki-Kunze, Jennie R., _The "Defenseless" Marriage Act: The
Constitutionality of the Defense of Marriage Act as an Extension of
Congressional Power Under the Full Faith and Credit Clause_, 48
Case Wes. Res. L. Rev. 351 (Winter 1998).

Semmel, Nathan M., _Talking Back to Cyber-Mom: Challenging the
Communications Decency Act of 1996_, 14 NYLS J. Hum. Rts. 533
(Winter 1998).

Walsh, J.F., Jr., _First Amendment Protection of Homosexual
Conduct_, 48 Case Wes. Res. L. Rev. 381 (Winter 1998).

Werst, Brian M., _A Survey of the First Amendment "Indecency" Legal
Doctrine and Its Inapplicability to Internet Regulation: A Guide
for Protecting Children from Internet Indecency after_ Reno v.
ACLU, 23 Gonzaga L. Rev. 207 (1997/98).

Williams, M. Clayborn, _Title VII and Same-Sex Sexual Harassment:
What Is the Proper Theoretical Basis for a Sexual Harassment
Claim?", 21 Am. J. Trial Advoc. 651 (Spring 1998) (still a very
live question after _Oncale_).

_Symposia:_

_Intersexions: The Legal & Social Construction of Sexual
Orientation_, 48 Hastings L.J. No. 6 (Aug. 1997) (first mainstream
law journal to publish a second symposium on sexual orientation
law!  individual articles noted above); _Constructing Family,
Constructing Change: Shifting Legal Perspectives on Same-sex
Relationships_, 7 Temple Political & Civ. Rts. L. Rev. No. 2
(Spring 1998) (individual articles noted above) * * * Symposium on
Megan's Laws, 34 Crim. L. Bulletin NO. 3 (May/June 1998). * * * The
July 1998 issue of the Cornell Law Review, vol. 83, no. 5, contains
a virtual symposium on sexual harassment law, with articles by
Kathryn Abrams, Anita Bernstein, and Katherine M. Franke.

AIDS & RELATED LEGAL ISSUES:

Albert, Miriam R., _Selling Death Short: The Regulatory and Policy
Implications of Viatical Settlements_, 61 Albany L. Rev. 1013
(1998).

Altman, Dennis, _HIV, Homophobia, and Human Rights_, 2 Health &
Hum. Rts. No. 4, 15 (1998).

Berg, Paula E., _When the Hazard Is Human: Irrationality, Inequity,
and Unintended Consequences in Federal Regulation of Contagion_, 75
Wash. U. L. Q. 1367 (1997).
Beyrer, Chris, _Burma and Cambodia: Human Rights, Social
Disruption, and the Spread of HIV/AIDS_, 2 Health & Hum. Rts. No.
4, 84 (1998).

Block, Alison, Book Review, _Global Justice: Women and AIDS_, 5
Duke J. Gender L. & Pol. 227 (Spring 1998) (symposium).

Blum, John D., _Safeguarding the Interests of People With AIDS in
Managed Care Settings_, 61 Albany L. Rev. 745 (1998).

Bobinski, Mary Anne, _Patients and Providers in the Courts:
Fractures in the Americans With Disabilities Act_, 61 Albany L.
Rev. 785 (1998).

Bradstreet, Angela M., and David M. Rice, _Trying to Have it Both
Ways_, 40 For the Defense No. 6, 17 (June 1998) (discussion of
using estoppel based on disability benefits claims to bar
employment discrimination claims by persons with disabilities).

Burris, Scott, Book Review, _Fatal Extraction: The Story Behind the
Florida Dentist Accused of Infecting His Patients With HIV and
Poisoning Public Health_ by Mark Carl Rom, 23 J. Health Politics,
Policy & L. 581 (June 1998) (The book reviewed is a serious public
policy study of the Kimberly Bergalis/Dr. David Acer incident, and
recommended reading for all those interested in HIV/AIDS and public
policy).

Breslow, Nancy A., _Standard of Proof to Sustain AIDS-Phobia
Claims_, N.Y.L.J., June 10, 1998, p.1.

Burris, Scott, _Law and the Social Risk of Health Care: Lessons
from HIV Testing_, 61 Albany L. Rev. 831 (1998).

Closen, Michael L., _The Decade of Supreme Court Avoidance of AIDS:
Denial of Certiorari in HIV-AIDS Cases and Its Adverse Effects on
Human Rights_, 61 Albany L. Rev. 897 (1998).

Fentiman, Linda C., _AIDS as a Chronic Illness: A Cautionary Tale
for the End of the Twentieth Century_, 61 Albany L. Rev. 989
(1998).

Fernandezs, Hermes, _Is AIDS Different?_, 61 Albany L. Rev. 1053
(1998).

Goosby, Eric P., _HIV Law & Policy: Keynote Address_, 5 Duke J.
Gender L. & Pol. 3 (Spring 1998) (symposium).

Gostin, Lawrence O., and James G. Hodge, Jr., _Piercing the Veil of
Secrecy in HIV/AIDS and Other Sexually Transmitted Diseases:
Theories of Privacy and Disclosure in Partner Notification_, 5 Duke
J. Gender L. & Pol. 9 (Spring 1998) (symposium).

Gostin, Lawrence O., and James G. Hodge, Jr., _The "Names Debate":
The Case for National HIV Reporting in the United States_, 61
Albany L. Rev. 679 (1998).

Gottfried, Richard N., _Lessons from Chautauqua County_, 61 Albany
L. Rev. 1079 (1998) (AIDS symposium).

Heywood, Mark, and Morna Cornell, _Human Rights and AIDS in South
Africa: From Right Margin to Left Margin_, 2 Health & Hum. Rts. No.
4, 60 (1998).

Hodes, Joel L., and Ellen M. Bach, _Corporate America's Response to
the AIDS Crisis: What Price Glory?_, 61 Albany L. Rev. 1091 (1998).

Irish, Meredith, _Accelerating Change: A History of ACT-UP's AIDS
Activism_, 5 Duke J. Gender L. & Pol. 227 (Spring 1998)
(symposium).

Jackson, Helen, _Social Determinants of Women's Vulnerability to
HIV Infection in Southern Africa_, 2 Health & Hum. Rts. No. 4, 9
(1998).

Kass, Nancy E., and Andrea Carlson Gielen, _The Ethics of Contact
Tracing Programs and Their Implications for Women_, 5 Duke J.
Gender L. & Pol. 89 (Spring 1998) (symposium).

Lavin, Laurence, _AIDS, Medicaid, and Women_, 5 Duke J. Gender L.
& Pol. 193 (Spring 1998) (symposium).

Mann, Jonathan, and Daniel Tarantola, _Responding to HIV/AIDS: A
Historical Perspective_, 2 Health & Hum. Rts. No 4, 5 (1998).

Marconi, Katherine, Barney Singer, and Marsha Fahrer, _The Paradigm
Shift in Medicaid: Women with HIV Under Managed Care_, 5 Duke J.
Gender L. & Pol. 211 (Spring 1998) (symposium).

Mastroianni, Anna C., _HIV, Women, and Access to Clinical Trials:
Tort Liability and Lessons from DES_, 5 Duke J. Gender L. & Pol.
167 (Spring 1998) (symposium).

Miller, Paul Steven, _The EEOC's Enforcement of the Americans With
Disabilities Act in the Sixth Circuit_, 48 Case Wes. Res. L. Rev.
217 (Winter 1998) (reviewing caselaw in the circuit that has done
most to gut protection for HIV/AIDS affected persons under the
ADA).

Pratt, David, _Health Care Policy: What Lessons Have We Learned
From the AIDS Pandemic?: Opening Remarks_, 61 Albany L. Rev. 671
(1998)(introduction to symposium).

Selbin, Jeffrey, and Mark Del Monte, _A Waiting Room of Their Own:
The Family Care Network as a Model for Providing Gender-Specific
Legal Services to Women with HIV_, 5 Duke J. Gender L. & Pol. 103
(Spring 1998) (symposium).

Shapiro, Lauren, _An HIV Advocate's View of Family Court: Lessons
From a Broken System_, 5 Duke J. Gender L. & Pol. 133 (Spring 1998)
(symposium).

Smith, Kimberly, _Mandatory HIV Testing for Convicted or Accused
Sex Offenders: Toward a Model Scheme_, 6 Circles 52 (1998).

Stevens, Helga, _AIDS, Not Hearing AIDS: Exploring the Link Between
the Deaf Community and HIV/AIDS_, 2 Health & Hum. Rts. No. 4, 98
(1998).

Swidler, Robert N., _Special Needs Plans: Adapting Medicaid Managed
Care for Persons With Serious Mental Illness or HIV/AIDS_, 61
Albany L. Rev. 1113 (1998).

Watkins, Beverly Xaviera, Robert E. Fullilove, and Mindy Thompson
Fullilove, _Arms Against Illness: Crack Cocaine and Drug Policy in
the United States_, 2 Health & Hum. Rts. No. 4, 42 (1998).

Wodak, Alex, _Health, HIV Infection, Human Rights, and Injecting
Drug Use_, 2 Health & Hum. Rts. No. 4, 24 (1998).

_Student Notes & Comments:_

Carlis, Michael D., and Scott A. McCabe, _Are There No Per Se
Disabilities Under the Americans With Disabilities Act? The Fate of
Asymptomatic HIV Disease_, 57 Md. L. Rev. 558 (1998).

Chambers, Elizabeth C., _Asymptomatic HIV as a Disability Under the
Americans With Disabilities Act_, 73 Wash. L. Rev. 403 (April
1998).

Houghton, Kimberly Jane, _Having Total Disability and Claiming It,
Too: The EEOC's Position Against the Use of Judicial Estoppel in
Americans With Disabilities Act Cases May Hurt More Than It Helps_,
49 Alabama L. Rev. 645 (Winter 1998).

McMillion, Evans, _The Case Against Mandatory HIV Testing of
Pregnant Women: The Legal and Public Policy Implications_, 5 Duke
J. Gender L. & Pol. 227 (Spring 1998) (symposium).

Mowery, Grace-Marie, _A Patient's Right of Privacy in Computerized
Pharmacy Records_, 66 U. Cin. L. Rev. 697 (Winter 1998).

Recent Cases, _Statutory Interpretation -- Americans With
Disabilities Act -- Tenth Circuit Holds That Courts Should Consider
Mitigating Measures in Evaluating Disability --_ Sutton v. United
Air Lines, Inc._, 130 F.3d 893 (10th Cir. 1997), 111 Harv. L. Rev.
2456 (June 1998) (severely criticizes 10th Circuit for its position
that a person whose physical impairment is correctable does not
have a disability).

Zazzli, Mara E., _HIV-Infected Health Care Workers Who Perform
Invasive, Exposure-Prone Procedures: Defining the Risk and
Balancing the Interests of Health Workers and Patients_, 28 Seton
Hall L. Rev. 1000 (1998).

_Symposia:_

_Symposium on Health Care Policy: What Lessons Have We Learned From
the AIDS Pandemic?_, 61 Albany L. Rev. No. 3 (1998) (individual
articles noted above). * * * _Special Focus: HIV/AIDS and Human
Rights_, 2 Health & Hum. Rts. No. 4 (1998) (individual articles
noted above) * * * _HIV Law & Policy: Ensuring Gender-Equitable
Reform_, 5 Duke J. Gender L. & Pol. No. 1 (Spring 1998) (individual
articles noted above).

EDITOR'S NOTE:

All points of view expressed in _Lesbian/Gay Law Notes_ are those
of identified writers, and are not official positions of the
Lesbian & Gay Law Association of Greater New York or the LeGaL
Foundation, Inc.  All comments in _Publications Noted_ are
attributable to the Editor.  Correspondence pertinent to issues
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