LESBIAN/GAY LAW NOTES
ISSN 8755-9021 November 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; 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; Dirk Williams,
Esq., Boston, Massachusetts; Robert Wintemute, Esq., King's
College, London, England; Leo Wong, New York Law School Student.

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

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(C) 1998 by the LeGaL Foundation of the Lesbian & Gay Law
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SOUTH AFRICA'S CONSTITUTIONAL COURT STRIKES DOWN SODOMY LAWS

On October 9, in _National Coalition for Gay and Lesbian Equality
v. Minister of Justice_, the Constitutional Court of South Africa
held (by 9 votes to 0) invalid under Sections 9 (equality), 10
(dignity) and 14 (privacy) of the final Constitution of the
Republic of South Africa (1996), the common law offence of
"sodomy," sec. 20A of the Sexual Offences Act, 1957 (which made it
an offence for two men to "commit[] . . . at a party [any occasion
where more than two persons are present] any act . . . calculated
to stimulate sexual passion or to give sexual gratification"), and
the inclusion of sodomy in the Criminal
Procedure Act, 1977 (which, inter alia, indirectly disqualified
persons convicted of sodomy from receiving a pension) and the
Security Officers Act, 1987 (which prohibited persons convicted of
sodomy from registering as security officers).  The application was
supported by the South African Human Rights Commission and was not
opposed (except initially and on limited grounds) by any of the
three government respondents.  The Court's judgment is certainly
one of the most resoundingly positive ever on an issue of sexual
orientation discrimination.

Justice Lori Ackermann wrote for himself and seven other judges. 
He began by citing Section 8(2) of the interim Constitution of the
Republic of South Africa Act, 1993 ("No person shall be unfairly
discriminated against . . . on one or more of the following grounds
in particular . . . sexual orientation . . ."), and the final 1996
Constitution's Section 9(3) ("The state may not unfairly
discriminate . . . against anyone on one or more grounds, including
. . . sexual orientation . . .") and Section 9(4) ("No person may
unfairly discriminate . . . against anyone [on a Section 9(3)
ground] . . . National legislation must be enacted to prevent or
prohibit unfair discrimination.").  He then considered the common
law offence of sodomy, defined as "sexual intercourse per anum
between human males."  (Like most common law jurisdictions outside
the U.S., South Africa's offence excluded oral intercourse, whether
male-male, male-female or female-female.  Unlike them, it also
excluded male-female anal intercourse.)

Applying the Court's equality case law, he had to decide whether
the sodomy offence's discrimination based on sexual orientation was
"unfair discrimination."  Although "unfairness" is presumed for
specified Section 9(3) grounds under Section 9(5), and no party
contended that it was fair, the Court had to satisfy itself "that
fairness ha[d] not been established."  The determining factor
regarding unfairness is "the impact of the
discrimination on . . . the members of the affected group." 

After citing an influential pre-appointment article (see (1993) 110
South African L.J. 450) by an openly gay law professor (who played
a major role in the negotiations leading to the inclusion of sexual
orientation in the interim Constitution and is now Mr. Justice
Edwin Cameron of the Witwatersrand High Court), Justice Ackermann
held that "the concept `sexual orientation' as used in Section 9(3)
. . . must be given a generous interpretation of which it is
linguistically and textually fully capable of bearing.  It applies
equally to the orientation of persons who are bi-sexual, or
transsexual and it also applies to the orientation of persons who
might on a single occasion only be erotically attracted to a member
of their own sex."  He then observed that "[t]he discriminatory
prohibitions on sex between men reinforce[] already existing
societal prejudices and severely increase[] the negative effects of
such prejudices on their lives," citing findings of serious
psychological harm by the European Court of Human Rights in _Norris
v. Ireland_ (1988) and the Supreme Court of Canada in _Vriend v.
Alberta_ (1998).  They also "legitimate or encourage blackmail,
police entrapment, violence (`queer-bashing') and . . . refusal of
facilities, accommodation and opportunities."   He added that
"[t]he impact of discrimination on gays and lesbians is rendered
more serious and their vulnerability increased by the fact that
they are a political minority not able on their own to use
political power to secure favourable legislation . . . They are .
. . almost exclusively reliant on the Bill of Rights for their
protection."  

He concluded that the discrimination is "unfair" because: 
"(a) [It] is on a specified ground [sexual orientation].  Gay men
are a permanent minority in society and have suffered patterns of
disadvantage.  The impact is severe, affecting the dignity,
personhood and identity of gay men at a deep level . . . (b) [It]
. . . criminalises private conduct of consenting adults which
causes no harm to anyone else.  It has no other purpose than to
criminalise conduct which fails to conform with the moral or
religious views of a section of society. (c) [It] has . . . gravely
affected the rights and interests of gay men and deeply impaired
their fundamental dignity."  Against this, "[t]here is nothing
which can be placed in the other balance of the scale."

Justice Ackermann also concluded that the sodomy offence violates
Section 10 of the final 1996 Constitution ("Everyone has inherent
dignity and the right to have their dignity respected and
protected") because "[i]ts symbolic effect is to state that in the
eyes of our legal system all gay men are criminals."  In addition
to this symbolic harm, "gay men are at risk of arrest, prosecution
and conviction . . . simply because they seek to engage in sexual
conduct which is part of their experience of being human. Just as
apartheid legislation rendered the lives of couples of different
racial groups perpetually at risk, the sodomy offence builds
insecurity and vulnerability into the daily lives of gay men. 
[Unlike the U.S. Supreme Court majority in _Bowers v. Hardwick_
(1986), Justice Ackermann saw the analogy between miscegenation
laws and sodomy laws.]  There can be no doubt that the existence of
a law which punishes a form of sexual expression for gay men
degrades and devalues gay men in our broader society."  

As for Section 14 of the final 1996 Constitution ("Everyone has the
right to privacy . . ."), Justice Ackermann found a third
violation.  "Privacy recognises that we all have a right to a
sphere of private intimacy and autonomy which allows us to
establish and nurture human relationships without interference from
the outside community.  The way in which we give expression to our
sexuality is at the core of this area of private intimacy.  If, in
expressing our sexuality, we act consensually and without harming
one another, invasion of that precinct will be a breach of our
privacy. . . . The fact that a law prohibiting forms of sexual
conduct is discriminatory, does not, however, prevent it at the
same time being an improper invasion of the intimate sphere of
human life to which protection is given by the Constitution in
Section 14."

Could any of these violations be justified under Section 36(1) of
the final 1996 Constitution?  "The harm caused by [the sodomy
offence] can . . . affect [the gay man's] ability to achieve
self-identification and self-fulfillment . . . [It] radiates out
into society generally and gives rise to a wide variety of other
discriminations, which collectively unfairly prevent a fair
distribution of social goods and services and the award of social
opportunities for gays."  Against this, "[n]o valid purpose has
been suggested.  The enforcement of the private moral views of a
section of the community which are based to a large extent on
nothing more than prejudice, cannot qualify as such a legitimate
purpose."  In particular, "[religious] views, however honestly and
sincerely held, cannot influence what the Constitution dictates in
regard to discrimination on the grounds of sexual orientation."  

Nor did Justice Ackermann find anything in the case law of other
open and democratic societies that would lead him to a different
conclusion.  He considered decriminalisation legislation in
England, Wales Scotland, and Germany, anti-discrimination
legislation in New South Wales and New Zealand, the European Court
of Human Rights' judgment on criminalisation in Northern Ireland in
_Dudgeon v. U.K._ (1981), the U.N. Human Rights Committee's views
on criminalisation in Tasmania in _Toonen v. Australia_ (1994), the
Supreme Court of Canada's finding that sexual orientation is an
"analogous ground" under Section 15(1) of the Charter in _Egan v.
Canada_ (1995), and the Ontario Court of Appeal's judgment on a
higher age of consent for anal intercourse in _R. v. M. (C.)_
(1995).  He concluded that "[b]y 1996, sodomy in private between
consenting adults had been decriminalised in the United Kingdom and
Ireland, throughout most of Western Europe, Australia (with the
[arguable] exception of Tasmania), New Zealand and Canada."  As for
the United States, "[the] 1996 Constitution differs so
substantially . . . that the majority judgment in [_Bowers v.
Hardwick_ (1986)] can really offer us no assistance . . . The 1996
Constitution contains express privacy and dignity guarantees as
well as an express prohibition of unfair discrimination on the
ground of sexual orientation ... [This eliminates the U.S. Supreme
Court's difficulty with] `. . . rights not readily identifiable in
the Constitution's text'."

Justice Ackermann declared that the sodomy offence is
constitutionally invalid "in its entirety," i.e., even when applied
to male-male anal intercourse that is non-consensual or involves a
partner under the age of consent.  The Court had "found the very
core of the offence to be constitutionally invalid.  There can be
no doubt that [its] existence . . . was not dictated by the
objective of punishing `male rape'. . . . The fact that . . . `male
rape' [was covered] was really coincidental.  The core of the
offence was to outlaw gay sexual expression of a particular kind." 
Nothing "requires the continued existence of a severely truncated
form of the common-law offence."  Male rape is punishable at common
law as "indecent assault" or "assault with intent to cause grievous
bodily harm," and the Sexual Offences Act, 1957 protects persons
below certain ages.  

The three challenged statutory provisions also fell.  The "men at
a party" offence (sec. 20A of the Sexual Offences Act, 1957) had an
"absurdly discriminatory purpose and impact," demonstrated by the
fact that it could apply to a gay man at a party who kissed his
partner on the mouth in a way "calculated to stimulate sexual
passion."  Should the invalidation of these
offences be retrospective?  Justice Ackermann concluded that the
sodomy offence "ceased to exist when the interim [1993]
Constitution came into force on 27 April 1994."  Convictions
relating to "conduct constituting consensual sexual conduct between
adult males in private" committed after this date are invalid, if
a proper appeal procedure has been or is invoked.  If it is "just
and equitable," courts may also enforce pension rights from that
date.  Otherwise, the Court's judgment generally has effect from
October 9, 1998.

The ninth judge, Justice Albie Sachs, made the decision unanimous
with a very strong and eloquent concurring opinion, which began:
"Only in the most technical sense is this a case about who may
penetrate whom where.  At a practical and symbolical level it is
about the status, moral citizenship and sense of self-worth of a
significant section of the community."  "[W]hat is really being
punished . . . ?  Is it an act, or is it a person? . . . [M]ale
homosexuality . . . is punished simply because it is deviant. . .
. for its perceived symbolism rather than because of its proven
harm . . . [C]onsensual anal penetration of a female is not
criminalised.  Thus, it is not the act of sodomy that is denounced
by the law, but the so-called sodomite who performs it; . . . the
threat that same-sex passion . . . is seen as representing to
heterosexual hegemony.  The effect is that all homosexual desire is
tainted, and the whole gay and lesbian community is marked with
deviance and perversity. . . . People are subject to extensive
prejudice because of what they are . . . not because of what they
do. . . . There could be few stronger cases than the present for
invoking the protective concern . . . offered by the Constitution."

In spite of the applicants' concerns about the adequacy of a
privacy argument ("it suggests that homosexuality is shameful and
. . . should only be protected if it is limited to the private
bedroom"), "equality and privacy cannot be separated, because they
are both violated simultaneously by anti-sodomy laws."  "[T]he
violation of equality by the anti-sodomy  laws is all the more
egregious because it touches the deep, invisible and intimate side
of people's lives . . . [T]he gross interference with privacy will
bear strongly on the unfairness of the discrimination, while the
discriminatory manner in which groups are targeted for invasions of
privacy will destroy any possibility of justification . . ."  The
applicants' "treating [privacy] as a poor relation of equality" was
unnecessary.

Citing Justice Blackmun's dissent in _Bowers v. Hardwick_ (1986),
Sachs observed that "privacy protects people, not places . . .
[Privacy is] a right to get on with your life, express your
personality and make fundamental decisions about your intimate
relationships without penalisation."  "What is crucial is  the
nature of the activity, not its site."  Yet, privacy does not mean
"blanket libertarian permission to do anything . . . [that] is
sexual and done in private. . . . [V]ery few democratic societies
. . . do not penalise persons for engaging in inter-generational,
intra-familial, and cross-species sex, whether in public or in
private. . . . [S]ex involving violence, deception, voyeurism,
intrusion or harassment is punishable . . . or else actionable,
wherever it takes place (there is controversy about prostitution
and sado-masochistic and dangerous fetishistic sex).  The privacy
interest is overcome because of the perceived harm. . . . Respect
for privacy does not require disrespect for social standards."

Justice Sachs concluded:  "Although the Constitution itself cannot
destroy homophobic prejudice it can require the elimination of
public institutions which are based on and perpetuate such
prejudice.  From today a section of the community can feel the
equal concern and regard of the Constitution and enjoy lives less
threatened, less lonely and more dignified.  The law catches up
with an evolving social reality.  A love that for a number of years
has dared openly to speak its name in bookshops, theatres, film
festivals and public parades, and that has succeeded in becoming a
rich and acknowledged part of South African cultural life, need no
longer fear persecution for intimate expression.  A law which has
facilitated homophobic assaults and induced self-oppression, ceases
to be. . . .  Homosexuals are no longer treated as failed
heterosexuals but as persons in their own right. . . . Section 9 of
the Constitution is unambiguous: discrimination on the grounds of
being gay or lesbian, is presumptively unfair and a violation of
fundamental rights.  This judgment holds that . . .  homosexual
erotic activity must be treated on an equal basis with heterosexual
. . . [W]hat is statistically normal ceases to be the basis for
establishing what is legally normative. . . . [G]ays and lesbians
cannot be forced to conform to heterosexual norms; they can now
break out of their invisibility and live as full and free citizens
of South Africa. . . . [P]ersons who for reasons of religious or
other beliefs disagree with or condemn homosexual conduct are free
to hold and articulate such beliefs.  Yet, . . . [the Constitution]
does not allow the state to turn these beliefs - even in moderate
or gentle versions - into dogma imposed on the whole of society. .
. . [T]he decision of this Court should be seen as part of a
growing acceptance of difference in an increasingly open and
pluralistic South Africa . . . [and might] encourage amongst the
heterosexual population a greater sensitivity to the variability of
the human kind."  

The National Coalition for Gay and Lesbian Equality was represented
by Mr. G.J. Marcus and Mr. M. Chaskalson, assisted by Nichollas,
Cambanis & Associates.  _Robert Wintemute_

LESBIAN/GAY LEGAL NEWS   

Supreme Court Denies Certiorari in Cincinnati Issue 3 Case

The U.S. Supreme Court announced Oct. 13 that it will not review
the constitutionality of Cincinnati Issue 3, a city charter
amendment enacted by voters in 1993 that bars the city from
adopting any policies protecting gay people from discrimination. 
_Equality Foundation of Greater Cincinnati v. City of Cincinnati_,
No. 97-1795, 66 USLW 3749, 1998 WL 248349.  This announcement was
surprising because Issue 3 is virtually identical to Colorado
Amendment 2, which the Supreme Court declared unconstitutional in
_Romer v. Evans_, 517 U.S. 620 (1996).  Most Court observers had
expected the Court either to summarily reverse the lower court's
ruling upholding Issue 3, or to grant review of the case. 

Issue 3 provides that neither the city of Cincinnati nor any of its
boards or commissions could adopt "any ordinance, regulation, rule
or policy which provides that homosexual, lesbian, or bisexual
orientation, status, conduct, or relationship constitutes,
entitles, or otherwise provides a person with the basis to have any
claim of minority or protected status, quota preference or other
preferential treatment."  Issue 3 also states that any such policy
that had previously been adopted "shall be null and void and of no
force or effect."  Issue 3 was adopted after a "no special rights"
campaign which, it was later learned, was largely funded with
donations funnelled through Colorado for Family Values, a front
organization for right-wing religious groups based in Colorado
Springs that had previously been the force behind passage of
Colorado Amendment 2 in 1992.

Equality Foundation of Greater Cincinnati, an organization
organized to oppose Issue 3, promptly filed suit in federal court
and won a decision from the trial judge that the measure was
unconstitutional, relying on the same legal theories that the
Colorado Supreme Court had adopted in striking down Amendment 2. 
See 860 F.Supp. 417 (S.D.Ohio 1994).  The city appealed to the U.S.
Court of Appeals for the 6th Circuit, which reversed the trial
court and held that Issue 3 was a constitutional decision by the
voters to limit civil rights protection in Cincinnati. See 54 F.3d
261 (6th Cir. 1995).  Equality Foundation petitioned the Supreme
Court for review.

After the Supreme Court issued its _Romer v. Evans_ decision in
1996, it vacated the 6th Circuit's Cincinnati decision and sent the
case back to the lower court for reconsideration in light of
_Romer_. See 518 U.S. 1001 (1996). Justice Antonin Scalia
dissented, arguing that a municipal charter amendment did not
present the same constitutional problems that the Court had
identified in Colorado's Amendment 2.  Taking a leaf from Scalia's
book, the 6th Circuit then reaffirmed its earlier ruling, 128 F.3d
289 (6th Cir. 1997), petition for rehearing en banc denied, 75 Fair
Emp. Prac. Cas. (BNA) 1763, 1998 U.S.App. Lexis 1765 (6th Cir.
1998), and Equality Foundation once again sought Supreme Court
review.

In an unusual development, Justice John Paul Stevens issued a brief 
statement on Oct. 13 accompanying the Court's announcement.  Joined
by Justices David Souter and Ruth Bader Ginsburg, Stevens
emphasized that a refusal by the Supreme Court to review a lower
court decision should not be interpreted as a ruling by the Supreme
Court on the merits of the case.  In this case, said Stevens, the
Court decided not to take the case because of confusion about the
effect of Issue 3.

In its decision upholding Issue 3, the 6th Circuit said that it
"merely removed municipally enacted special protection from gays
and lesbians."  But it is clear on its face that Issue 3 did more
than that.  As the plaintiffs explained in their petition for
certiorari to the Supreme Court, Issue 3 " bars antidiscrimination
protection only for gay, lesbian and bisexual citizens."  The
difference is crucial.  According to the 6th Circuit's decision,
Issue 3 merely repealed the city's anti-discrimination polices as
they affect gays.  According to the plaintiffs, Issue 3 embeds in
the Cincinnati City Charter a prohibition on the adoption of any
policy that might protect gay people from discrimination, just as
Amendment 2 did in Colorado.

Justice Stevens explained that the Supreme Court does not normally
get involved in the interpretation of state or local laws.  "Thus,
the confusion over the proper construction of the city
charter counsels against granting the petition" for review in this
case.  "The Court's action today should not be interpreted either
as an independent construction of the charter or as an expression
of its views about the underlying issues that the parties have
debated at length," said Stevens.

The Court's denial of review could also be seen as entirely in
character with its past treatment of gay and lesbian rights issues.
Over the past thirty years, the Supreme Court has rarely agreed to
review a case that was lost by the gay litigants in the lower
courts.  The Court has usually taken for review cases in which the
gay litigants won a lawsuit, and the losing side has petitioned the
Court for review.  

The only exceptions to this practice were the Gay Olympics case,
_San Francisco Arts & Athletics, Inc. v. United States Olympic
Committee_, 483 U.S. 522 (1987), in which the Court affirmed the
9th Circuit's decision that the U.S. Olympic Committee could veto
use of the term "Olympics" by the organizers of what were then
renamed the Gay Games, and two decisions from the period of the
Warren Court in the 1960's, when the Court took a case challenging
the post office's refusal to carry gay literature through the
mails, _Manual Enterprises, Inc. v. Day_, 370 U.S. 478 (1962), and
another case challenging the statutory exclusion of gay people from
immigrating to the U.S., _Boutilier v. Immigration & Naturalization
Service_, 387 U.S. 118 (1967).  Ultimately, the Court ruled in
favor of the gay litigants in the postal case, and against the gay
litigants in the immigration case.  A.S.L.

Supreme Court Refuses to Hear Challenge to Military Policy

On Oct. 19, the U.S. Supreme Court denied certiorari in _Thorne v.
U.S. Department of Defense_, No. 98-91 (1998 WL 407150), a
challenge to the constitutionality of the "don't ask, don't tell"
military policy.

Tracy Thorne, a highly decorated Naval aviator, appeared on ABC
Nightline in May 1992 to announce that he was gay.  Discharge
proceedings were initiated against him almost immediately, but he
was not finally discharged after exhausting all appeals within the
military system until 1995, by which time the new policy was in
place.  Thorne filed his challenge in the U.S. District Court for
the Eastern District of Virginia, which issued a ruling denying his
claim in 1996, 945 F.Supp. 924.  The 4th Circuit affirmed in an
unpublished opinion earlier this year, 139 F.3d 893 (table).

The Supreme Court has consistently spurned every opportunity to
review the military policy, and seems likely to continue avoiding
this issue unless a circuit court of appeals holds the policy
unconstitutional.  The 2nd Circuit's decision in _Able v. United
States_, 1998 WL 647142 (September 23), upholding the policy, might
serve as a vehicle to get this issue up to the high court if a
petition for en banc review is successful.  But such petitions are
rarely granted, as the following story shows.  A.S.L.

9th Circuit Judges Dissent From Denial of En Banc Review in
Military Challenge

In a very belatedly published opinion, five judges of the U.S.
Court of Appeals for the 9th Circuit dissented from the decision to
deny en banc review in a case challenging the U.S. military's
"don't ask, don't tell" policy.  _Holmes v. California Army
National Guard_, 1998 WL 672061 (9th Cir., April 6).  Andrew Holmes
and Richard Watson, lieutenants in the California Army National
Guard, lost their positions when they went public about being gay. 
Their challenge was rejected by a three-judge panel, a majority of
which also rejected their petition for rehearing.  Then the full
circuit voted to reject their petition for rehearing en banc.

Dissenting from the denial of en banc review, Circuit Judge
Pregerson, joined by Circuit Judges Reinhardt, Kozinski, Michael
Daly Hawkins, and Tashima, argued that the military policy "imposes
silence -- not inaction -- upon gay and lesbian service personnel. 
The words `Don't Ask' and `Don't Tell' forbid speech, not conduct." 
The essence of the majority's opinion, and of opinions upholding
the policy from other circuits, has been acceptance of the
government's contention that the policy is aimed solely at conduct,
and merely uses speech to detect those with a "propensity" to
engage in forbidden "homosexual conduct."

Pregerson argues in dissent that the policy's restriction on speech
is impermissibly content-based "because it penalizes gay and
lesbian members of our armed forces for revealing one basic aspect
of their identities, any time or any place. . .  To make matters
worse, the `Don't Ask/Don't Tell' policy imposes a viewpoint
restriction on speech.  Unlike their gay and lesbian counterparts,
heterosexual military personnel may talk about their sexuality with
jeopardy."  Pregerson concluded: "A person who has taken an oath to
protect and defend the Constitution of the United States should not
be denied that privilege simply because that person wishes to make
a statement about his or her innermost self.  It seems to me that
such speech, which is truthful and neither harms nor endangers
anyone, is shielded by the First Amendment."  A.S.L.

Maryland Trial Judge Rules Oral Sex Law Does Not Apply to Gays in
ACLU Challenge, But Sustains Solicitation Law

In a surprise to the parties, Maryland Circuit Court Judge Richard
T. Rombro, ruling on a motion by the defendants to dismiss for lack
of standing, has construed the Maryland oral sodomy law, 27 M.C.
sec. 554, not to apply to private, consensual sex between adults of
the same sex.  _Williams v. Glendening_, No. 98036031/CL-1059
(Baltimore City Cir. Ct., Oct. 15, 1998).  Rombro also ruled on the
merits of a challenge to the solicitation law, 27 M.C. sec. 15(e),
rejecting the challenge.

This is a test case constructed by the ACLU of Maryland and the
national ACLU Lesbian & Gay Rights Project to challenge what
remains of the state's oral sex sodomy law subsequent to _Schochet
v. State_, 580 A.2d 176 (Md. 1990), in which the state's highest
court construed that statute not to apply to private, consensual
heterosexual oral sex in order to avoid constitutional privacy
concerns. (A separate provision, 27 M.C. sec. 553, applies to anal
sex and was not challenged in this case.)  The plaintiff group
includes one man who had been arrested for soliciting oral sex by
a vice cop, to ensure that at least one member of the plaintiff
group could survive any challenge to standing.  (The other members
of the group are gay and lesbian couples who expressed fear of
possible prosecution and a non-gay taxpayer who objected to the
expenditure of public funds on enforcement of the statute.) 
Inclusion of the arrestee necessarily led to including a challenge
to the solicitation law as well as the underlying oral sodomy law. 
The named defendants are the governor, attorney general, the
Baltimore police commissioner, the Anne Arundel County executive
and the county police chief.

The challenged oral sodomy statute provides, in pertinent part:
"Every person who is convicted of taking into his or her mouth the
sexual organ of any other person or animal, or who shall be
convicted of placing his or her sexual organ in the mouth of any
other person or animal, or who shall be convicted of committing any
other unnatural or perverted sexual practice with any other person
or animal, shall be fined not more than one thousand dollars
($1,000.00), or be imprisoned in jail or in the house of correction
or in the penitentiary for a period not exceeding ten years, or
shall be both fined and imprisoned within the limits above
prescribed in the discretion of the court."  Court decisions have
construed this law to apply beyond oral sex to include other non-
vaginal sexual acts as well (including one case involving anal
sexual assault with a broom handle).  The solicitation statute
makes it unlawful "to ... solicit ... for the purpose of
prostitution, lewdness or assignation."  

In their motion to dismiss, the defendants asserted that they
should not have been named as individual defendants; as plaintiffs
are seeking injunctive relief, the defendants claimed that it would
be proper to name the state and county directly rather than
individual public officials.  Judge Rombro agreed, and ordered that
the state and county be substituted as defendants.  

The defendants also argued that none of the plaintiffs had standing
to challenge the sodomy law, asserting that there is no active
enforcement of the statute against same-sex adult couples having
consensual sex in private.  As to this, the court disagreed with
defendants, finding that it "cannot say that the concerns of these
plaintiffs are not real" in light of the possibility of prosecution
and consequent loss of livelihood and reputation.  The court also
noted that there are 24 separate prosecutory jurisdictions in
Maryland, so the assurances of the named defendants in this case
that prosecution would not be undertaken did not resolve the
matter.  The court was also persuaded by decisions in other
jurisdictions, most recently in Montana, finding that a similar
test case plaintiff group had standing to challenge that state's
sodomy law.

The court then proceeded, without explaining why, to rule on the
merits of the plaintiffs' claim.  The plaintiffs were seeking a
declaration that the statute is unconstitutional as applied to
them; the defendants argued that the statute should be construed to
avoid the constitutional question that would be raised by
prohibiting homosexuals from engaging in conduct that is allowed
for heterosexuals.  The state itself suggested that applying sec.
554 to same-sex couples would raise both equal protection and
privacy concerns. 

Judge Rombro, following the approach of the court of appeals in
_Schochet_, agreed with the defendants that the statute could and
should be so construed.  "It cannot be doubted, as Defendants
concede, that there would be an equal protection violation if acts,
considered not criminal when committed by a heterosexual couple,
could be prosecuted when practiced by a homosexual couple.  There
is simply no basis for the distinction."  Thus, seeking to avoid
the constitutional problem, "this court. . . will hold that the
statute as it is written does not encompass consensual, non-
commercial, heterosexual or homosexual activity between adults in
private."

However, Rombro refused to strike down the solicitation statute,
rejecting the plaintiffs' argument if the underlying act is not
illegal, then solicitation to commit the act cannot be penalized
either.  Plaintiffs based their argument on _People v. Uplinger_,
447 N.E.2d 62 (N.Y. 1983), cert. dismissed, 467 U.S. 246 (1984), in
which New York's highest court held that, having invalidated
application of the sodomy law to consensual adult sex in 1980, it
must thereafter invalidate a loitering statute as it applied to
charges of soliciting deviate sexual intercourse. 

Rombro found the New York case distinguishable in various respects. 
First, he noted that the Maryland law does not single out
homosexuals, but rather prohibits all solicitation for engaging in
lewdness.  "Clearly one segment of society is not singled out." 
Next, the New York law was a loitering law, whereas the Maryland
law focuses directly on solicitation.  Finally, the _Uplinger_
court had noted that the legislature could pass a law regulating
offensive public conduct.  "The _Schochet_ decision held that acts
between consenting adults which were conducted in private are not
criminal," Rombro noted; "An unwanted solicitation is neither
private nor consensual."

"This court believes that the varied ramifications of a
solicitation make it inappropriate for a court to declare such a
statute facially unconstitutional.  Certainly there is a difference
whether the solicitation occurs in a bar, gay or straight, [or] in
a shopping mall.  In the latter case, there is involved an element
of harassment and nuisance; cases arising from that set of facts
usually come about because of merchant complaints that their
customers have received unwelcome overtures."

Rombro concluded by entering an order declaring that 27 M.C. sec.
554 "does not apply to private, consensual, non-commercial sexual
activity."  Interestingly, as this was an early stage in the
litigation and the parties had not expected a ruling on the merits
in this dismissal motion, the court had not yet certified the case
as a class action.  However, having substituted the state and
county as defendants, it appears that this order should have the
effect of banning prosecutions under sec. 554 throughout the state. 
What impact this ruling would have on enforcement of sec. 553, the
sodomy provision that applies to anal sex, is unclear, although
presumably the same privacy and equal protection arguments that
were used in _Schochet_ and this case could be summoned to persuade
prosecutors to refrain from pressing charges under sec. 553 as
well.

As we went to press, there was no announcement whether either the
state or the plaintiffs would appeal.  As the court actually
adopted the reading of sec. 554 urged by the state while sustaining
the constitutionality of the solicitation law, it seemed unlikely
the state would want to appeal.  As the invalidation of sec. 554 as
applied to consensual sex would significantly undermine the
justification for enforcing the solicitation law in many
circumstances, it is possible that the plaintiffs will conclude
that an appeal at this point is not necessary, although lack of an
appeal means that there will be no published appellate decision to
cite in this case.  (Perhaps the legislature can be persuaded to
revise the law so that it will explicitly apply only to public
and/or non-consensual sex, thus obviating any problem about
reliance on an unpublished trial court decision.)

Commenting on the decision, ACLU Project Director Matt Coles noted
that sodomy laws are frequently invoked by gay rights opponents to
justify anti-gay discrimination.  Now, at least in Maryland, "they
can no longer justify opposition to lesbian and gay rights by
saying that we are criminals once these laws are struck from the
books."  Lead attorney on the case for the ACLU of Maryland is
Dwight Sullivan.  A.S.L.

Federal Court Says Straight City Worker Can Sue for Sexual
Orientation Discrimination

Denying a motion to dismiss by the defendant, U.S. District Judge
Bucklo ruled in _Cleaves v. City of Chicago_, 1998 WL 729744
(N.D.Ill., Oct. 14), that a discharged city police officer had
stated a claim for violation of equal protection by alleging that
the city's policy recognizing same-sex domestic partners does not
extend equal recognition to unmarried opposite-sex partners.

Byron Cleaves sued under Title VII and 42 U.S.C. secs. 1981 and
1983, alleging he was unlawfully discharged as a probationary
officer.  One of the grounds for discharge was that he was absent
without permission.  As recounted by the court, "On May 7, 1997,
Mr. Cleaves informed Sergeant O'Sullivan that he would not be at
work due to the death of his father-in-law.  Mr. Cleaves is not
married.  At the time of the incident Mr. Cleaves was engaged, and,
in his view, married.  Although Mr. Cleaves did not technically
have a father-in-law, he suggests that if homosexual partners may
receive the same benefits as married, heterosexual couples, then he
should also have those rights even if he does not have a marriage
license.  Mr. Cleaves claims it was improper for him to be written
up for being absent without permission and for filing a false
report."  Cleaves alleged a violation of both Title VII and equal
protection by the city's refusal to treat his attendance at the
funeral the same as it would treat the attendance by a gay employee
of his or her domestic partner's father's funeral.

Dismissing the Title VII claim, Judge Bucklo found no allegation of
discrimination "due to his gender."  The claim could be construed
as involving marital status, but marital status discrimination is
not covered under Title VII.  Also, "Mr. Cleaves' claim could be
read to state a claim for discrimination based on his heterosexual
sexual orientation; that is, as a heterosexual in a relationship he
does not have the same rights as a homosexual in a relationship. 
Sexual orientation, however, also is not protected under Title
VII."

However, the court alternatively construed Cleaves' claim as
raising an equal protection issue.  "Neither marital status nor
sexual orientation involve a suspect classification or impact a
fundamental interest, and thus, equal protection claims on those
bases are examined under the rational basis test," Bucklo observed. 
"The City argues that Mr. Cleaves fails to state a claim because he
has not alleged facts showing that the government's actions are
irrational.  The federal courts work under a notice-pleading
standard and Mr. Cleaves has sufficiently put the City on notice of
his Section 1983 claims and the actions he believes violated his
equal protection rights.  The City does not argue that the
classifications alleged to be discriminatory by Mr. Cleaves have
any rational basis.  The City also argues Mr. Cleaves' Section 1983
claim is deficient for failure to allege a City policy caused his
injury.  Mr. Cleaves asserts that the City provides unmarried
homosexual couples with greater rights than unmarried heterosexual
couples.  Mr. Cleaves has pled a City policy."

Consequently, the court concluded that the City's motion to dismiss
the Equal Protection claim must be denied.  The court also refused
to dismiss a Title VII claim for retaliation based on other facts
Cleaves had alleged.  A.S.L.

District Court Rules on Puerto Rican Police Restrictions

On Sept. 30, U.S. District Judge Hector M. Laffitte (D.P.R.) struck
down Regulation 29 of the Puerto Rico Police Department's
disciplinary code, which made it a grave offence for officers of
the Puerto Rico Police Department to associate with homosexuals..
_Ramos-Padro v. Commonwealth of Puerto Rico_, Civ. No. 95-1770
(HL).  The court found that Regulation 29 furthers no state
interest and violates the First Amendment.  

Lambda Legal Defense and Education Fund brought the case on behalf
of the Gay Officers Action League (GOAL) after members of GOAL were
harassed by the PRPD in 1995 during a convention in San Juan. 
Although their main purpose for going to San Juan was to hold their
annual convention, members of GOAL had told the press that they
were also interested in starting a local chapter of GOAL in Puerto
Rico.  Within hours after the GOAL members gave their interview to
local press, the PRPD, with a group of 30 officers dressed with
riot helmets and night sticks, entered a local gay bar (where
several members of GOAL were present) on the pretense of checking
the validity of the bar's licenses.  In addition to challenging the
constitutionality of Regulation 29, the lawsuit seeks damages for
Civil Rights violations as a result of the raid on the gay bar.  

Before the court were two motions for summary judgment which were
dealt with in separate opinions.  The first motion dealt with
whether Regulation 29 violated the First Amendment of the
Constitution.  Most of Judge Laffitte's 29-page decision dealt with
whether GOAL had standing the challenge the Regulation.  GOAL
stated that six of its members were members of the PRPD, but none
of those six wanted to be identified, for obvious reasons.  GOAL
could not produce anyone who was willing to state publicly that
they would have joined GOAL but for Regulation 29.  Nevertheless,
the court found that because most of GOAL's members are gay, Puerto
Rico police offices may not, according to Regulation 29, join the
organization or even attend any of its meetings.  The court then
found that the Regulation prevents GOAL from carrying out its
activities or recruiting new members.  Based on the foregoing, the
court found that GOAL had standing to challenge Regulation 29. 

GOAL claimed that Regulation 29 unconstitutionally limited its
associational rights.  The court found that GOAL's activities were
primarily political in nature and constitute expressive activities
under the First Amendment.  At this point the burden shifted to the
Commonwealth to show a compelling state interest for the Regulation
unrelated to the suppression of ideas. 

Two members of the PRPD's psychology and social work departments
testified at depositions that there was no reason why police
officers should not associate with homosexuals.  There was no
evidence that officers could not carry out their duties without the
prohibition on association with homosexuals.  Although Judge
Laffitte applied a heightened level of scrutiny in declaring
Regulation 29 unconstitutional, in dicta the Judge stated that the
Regulation would not have passed even the rational basis test, as
the PRPD offered no justification whatsoever for the Regulation. 

The second part of the lawsuit, and Judge Laffitte's second
opinion, also released on Sept. 30, dealt with the alleged civil
rights violations as a result of the "inspection" at the gay club
in San Juan during the GOAL convention.  Ultimately, the court
found that a question of fact existed as to whether the PRPD
singled out the bar and its patrons for anti-gay harassment and to
retaliate against GOAL for publically supporting lesbian and gay
police officers.  A trial will be required on these issues.  

In response to these opinions, Ruth Harlow, Lambda's Managing
Attorney, stated: "Regulation 29 made lesbian and gay Puerto Ricans
pariahs to their own police force.  The regulation's demise means
that they can now expect equal access to members of their police
department and to no longer be treated as outcasts."  _Todd V.
Lamb_

Federal Court Dismisses Sexual Orientation Discrimination Claim in
Connecticut

A federal District Court in Connecticut dismissed a sexual
orientation employment discrimination complaint against the
American Red Cross (ARC) on Oct. 13.  Jon White, a Registered Nurse
(RN) alleged that he was harassed and had a promotion delayed based
on being male and gay.  _White v. Martin_, 1998 WL 720473.

White, then a Licensed Practical Nurse, was hired by the ARC in
1987.  Upon becoming an RN in October of 1993, he applied for an RN
position and was promoted in August of 1994.  He alleged
discrimination in the delay of his promotion on the basis of his 
being male and gay.  He is still employed as an RN at the ARC.  In
February of 1994 he filed a complaint with the Connecticut
Commission for Human Rights and Opportunities (CCHRO). An
investigator issued a "Reasonable Cause Finding" in April 1996. 
The case was reassigned to another investigator who reversed the
finding in December 1996 and dismissed the complaint on its merits. 
White argued that the reassignment was done at the request of the
ARC.  On February 24, 1998 he filed suit against the ARC and  the
Commission.    

Senior District Judge Goettel found that White's Title VII Claims
alleging sex discrimination were invalid because he did not get a
right-to-sue letter from the EEOC.  White argued that he "filed
through CCHRO with the EEOC."  The court found that it was not
clear if he requested that his charge be dual-filed with the EEOC.
Further, the court ruled that even if White had filed with the
EEOC, he did not receive a right-to-sue letter and presented no
evidence that would support a waiver of the requirement.  

The ARC asserted that White improperly brought claims under the
Connecticut Fair Employment Practices Act due to his failure to
obtain a release from the CCHRO prior to filing suit.  Judge
Goettel rejected White's claim that because the CCHRO could not
provide the relief he sought, he was not required to follow their
procedures. 

White also alleged negligence, "recklessness and maliciousness" and
"negligent infliction of emotional distress" by the ARC.  The ARC
successfully sought dismissal of these allegations, arguing that
White had failed to state a claim upon which relief may be granted. 
The court found that White had not alleged any violation of public
policy.  White's commonlaw at-will employment status, the court
ruled, was not outweighed by claims of discrimination in
considering these tort claims.  Additionally, the fact that he was
still employed by the ARC was cause to reject the claim of
"negligent infliction of emotional
distress."  The emotional distress claim was rejected because the
conduct alleged fell "short of misconduct which exceeds `all bounds
usually tolerated by a decent society'," the rather demanding
standard imposed in cases where physical injury is lacking.   

Having rejected all of the allegations made by White against the
ARC, Judge Goettel ruled that the claims against the CCHRO
similarly lacked merit and rejected the allegations against the
agency and its employees.  _Daniel R Schaffer_

Court Dismisses Claim of Sexual Orientation Favoritism

A public employee fired for circulating a news release accusing his
supervisor of playing favorites based on sexual orientation was not
entitled to preliminary injunctive relief on his claim that the
termination violated his First Amendment rights.  _Greer v.
Amesqua_, 1998 W.L. 707593 (U.S. Dist. Ct., W.D. Wisc., Sept. 25). 


Firefighter Ronnie Greer believed Fire Chief Debra Amesqua to be a
lesbian and publicly criticized her handling of a disciplinary
matter involving another fire chief, whom Greer also perceived to
be a lesbian.  In a verbose opinion, the U.S. District Court held
that Greer was not entitled to injunctive relief, i.e.,
reinstatement, because the fire department's interest in running a
department that could serve the public effectively outweighed the
plaintiff's interest in having his first amendment rights
protected.  Though not explicitly a basis for the opinion, the
court goes to some length to describe the plaintiff as a fanatical
right wing nut who picketed Amesqua's swearing in and distributed
anti-gay literature at work.  _Dirk Williams_

Court Strikes Down Boston City Parade Regulations

In _Nationalist Movement v. City of Boston_, 12 F. Supp. 182 (D.
Mass., July 2, 1998), the U.S. District Court struck down the
regulations promulgated by the City of Boston which govern issuance
of permits for parades, on its face and as applied to a group
branded by civil rights groups as racist, anti-semitic and
homophobic.  The court ruled that the regulations vest too much
discretion in the City in regulation of time place and manner of
issuance of parade permits.

In 1994, the sponsors of the traditional St. Patrick's Day parade
(known locally as the "St. Patrick's Day/Evacuation Day" parade)
canceled the parade rather than comply with an injunction issued by
the Massachusetts Superior Court requiring them to allow the
Irish-American Gay, Lesbian and Bisexual Group of Boston to march
as an identifiable group. (This injunction was later overturned in
_Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
Boston_, 515 U.S. 557 (1995).) The controversy came to the
attention of one Richard Barrett, leader of a group called the
Nationalist Movement, a majoritarian group based in Mississippi. 
A joint letter by the mayor of Boston, The Urban League of
Massachusetts and the Anti-Defamation League described this group
as one that "deals in hatred."   Barrett decided to organize a
"resurrected St. Patrick's Day Parade" to show the local people
that they could still have their parade with all due pomp and
circumstance.

In early March 1994, Barrett wrote to the City's Transportation
Commissioner, requesting a permit for a parade on May 7, 1994, as
he would be required to do under the Boston Transportation
Department Regulations.  The regulations require a person seeking 
to hold a parade to make a written request, setting forth date,
time, proposed route, sponsor, and approximate number of
participants.  The Commissioner of Transportation must issue such
a permit unless the time, route and size of the parade would
disrupt the use of any street or public place, or material portion
thereof.

The Commissioner did have the authority, however, to grant special
permits for occasions of "extraordinary public interest" for events
which would not be annual or customary, for any public street, at
any day or hour, and to modify the route time and date of a parade
to alleviate public congestion and promote public safety. Barrett
sought to hold his parade in South Boston, along the traditional
route of the parade, and was in apparent compliance with the
regulations.

The permit was denied on the grounds of public congestion and
public safety (given the nature of the marchers) and because no 
separate "street closing permit" had been requested. The group
entered into negotiations with the City. The City tried to have the
parade moved out of South Boston, but the group refused, as
changing the venue would interfere with the message which the group
sought to convey.  The permit was refused, and the group chose to
have its march anyway, along the desired route.  The court found
that the City entered into preparations for the parade which were
pretty similar to what would have been done had the permit been
granted: parking was prohibited along the parade route on the day
of event, with violators were towed, and street excavation permits
were suspended. Contingency plans were made for
counter-demonstrators.

The court found that on the day of the parade, 600 city police
officers were in the area, with 200 state troopers nearby.   Though
participants and onlookers could pass through checkpoints, physical
arrangements made it difficult for people to join the group or to
interact with the march participants.  The police were deployed in
such a manner that the marchers were forced to march on the
sidewalk, while the police occupied the adjoining street. There
were no disturbances during the march.

The Nationalist Movement sued, alleging violations of civil rights
under 42 USC secs. 1983 and 1985, alleging that the City deprived
the marchers their rights of freedom of speech and assembly as
guaranteed under the First and Fourteenth Amendments of the
Constitution. 

The court found for the Nationalist Movement, finding that the City
treated this group differently from others seeking to march under
similar circumstances, and that the nature and content of the
groups message was the reason for this different treatment.  The
court rejected the City's justifications for its treatment of the
group as merely pretextual, pointing to other marches and
demonstrations which were permitted by the city, including the
Prayer Foundation parade and the annual Gay Pride parade, both of
which involved substantially greater disruptions to traffic and
created far greater congestion. The stated concerns for public
safety were likewise rejected as pretextual, under a similar
rationale.

The court then struck down the regulations in question altogether,
for they vest unbridled discretion on the Commissioner of
Transportation, who could determine when a parade would "disrupt"
a street or when it would "deny reasonable police protection" the
rest of the City, to modify time palace and manner of the parade in
the interests of promoting public safety, and to grant the
Commissioner, with the approval of the Transportation Commission,
to make exceptions for "occasions of great public interest."  At
trial, the Transportation Commissioner conceded that decisions as
to applications were made on their particular merits, which the
court took to mean as being on an ad hoc basis, without limits to
discretion.  The burden on the City would be to draft regulations
which would serve the legitimate needs of maintaining order and
safety while leaving no leeway for content based restrictions as to
time, place or manner of participation. 

The court noted the irony of this case for both sides.  The City's
handling of the matter brought far more attention to the march and
notoriety to the group than would have otherwise been merited, and
the abuse of discretion led to the striking down of the regulations
in question.  For the Nationalist Movement, a majoritarian group,
the irony was that it wound up protecting the interests of minority
interests, which the group opposes.  _Steven Kolodny_

Colorado Appeals Court Rejects Challenge to Same-Sex Benefits for
Denver Employees

A unanimous 3-judge panel of the Colorado Court of Appeals has
rejected a challenge to the city of Denver's adoption of a
domestic-partner benefit plan for same-sex partners of municipal
employees.  _Schaefer v. City & County of Denver_, 1998 WL 722603
(Oct. 15).

Paul Schaefer and Irene Tader, taxpayers in the city and county of
Denver, Colorado, filed suit contesting the authority of the local
government to adopt a program extending health and dental benefits
to the same-sex partners of local government employees, shortly
after the ordinance was enacted in 1996.  Under the program,
benefits go to "spousal equivalents," defined as "an adult of the
same gender with whom the employee is in an exclusive committed
relationship, who is not related to the employee and who shares
basic living expenses with the intent for the relationship to last
indefinitely."  Denver District Court Judge Robert S. Hyatt had
rejected the plaintiffs' challenge, and they appealed.

Plaintiffs challenged the ordinance on several grounds.  First,
they asserted that the decision whether to extend such benefits was
a matter of state-wide concern, beyond the competence of a local
government unit to decide.  The court disagreed, noting the broad
home-rule powers delegated to Denver pursuant to the state
constitution.  "Our supreme court has recognized that the authority
to define the scope of employee compensation, including benefits,
is of particular importance to a local government because of its
impact on a city's ability `to both hire and retain qualified
individuals,'" wrote Judge Roy for the court.  "As such, the court
recognized that a city's payment of health care premiums for its
employees `is a matter of local concern which has not been
addressed by state statutory provisions, and is therefore subject
to the limitations imposed by the city charter.'"

The plaintiffs also argued that the local ordinance was
inconsistent with state insurance laws, which define "dependents"
in the context of group insurance policies to include spouses and
children.  The court found that these insurance law provisions as
not "limiting, or intending to limit, the power of a home rule city
to design and implement group health insurance programs for its
employees."  Unlike some other states, Colorado has not
specifically defined eligibility for public employee benefits
through a statute of statewide application.  This made the instant
case distinguishable from _Lilly v. City of Minneapolis_, 527
N.W.2d 107 (Minn.App. 1995), and _City of Atlanta v. McKinney_, 454
S.E.2d 517 (Ga. 1995), in which municipal domestic partnership
benefit plans were held invalid.  (The Atlanta plan, as later re-
enacted, was subsequently upheld by the Georgia Supreme Court.)

Finally, the plaintiffs argued that the ordinance contradicted the
state's marriage laws by purporting to redefine family and marital
relationships.  The court found that the local law did not
"infringe" on the purpose of the state marriage laws.  "The
ordinance qualifies a separate and distinct group of people who are
not eligible to contract a state-sanctioned marriage to receive
health and dental insurance benefits from the City.  Therefore, the
ordinance does not adversely impact the integrity and importance of
the institution of marriage."

The court concluded that the determination of employee benefits
programs for municipalities is purely a matter of local concern in
Colorado, and affirmed the lower court's judgment in favor of the
defendants.  A.S.L.

Maryland Court Upholds County Non-Discrimination Ordinance

A radio station owned by the Christian Broadcast Network lost a
desperate and multi-layered attempt to invalidate a county
anti-discrimination ordinance by arguing that such an ordinance
prohibiting discrimination based on sexual orientation conflicts
with the state law which does not prohibit such discrimination. 
_Broadcast Equities, Inc. vs. Montgomery County, MD_, 1998 WL
678075 (October 2).  The holding, a small part of a host of state
and federal constitutional issues raised in this case (as well as
valuable dictum in support of states to include sexual orientation
in their employment non-discrimination laws), declared that
"[a]lthough discrimination on the basis of sexual orientation is
not specifically covered by State law, this surely does not mean
that such discrimination is permitted."
 
Appellant Broadcast Equities, Inc. (BEI) allegedly fired Richard
Mangus because he is gay.  He filed a complaint with the Montgomery
County Human Relations Commission (Commission) which, after three
years, found reasonable grounds to believe discrimination occurred
in Mangus' termination and violated the county employment
non-discrimination ordinance (County Code or ordinance).  After BEI
refused to settle, the Commission filed charges asking for
re-instatement and/or back pay and $1000 in damages for humiliation
and embarrassment.  

BEI filed a complaint in the Court of Special Appeals of Maryland,
seeking a declaration that enforcement of the ordinance violates
BEI's federal Due Process and Equal Protection rights, violates 42
U.S.C. 1983, is unconstitutional under the state constitution, and
violates BEI's rights to freedom of association, religion and
speech under the US Constitution.  BEI also sought an injunction
barring appellees from proceeding against them and for fees and
costs of the litigation.  Both parties filed motions for summary
judgment.  The court granted the county's motion ruling all
appellant's claims excluding the facial challenges to the
employment non-discrimination laws are premature, that its federal
claims are not ripe for judicial review and found no grounds for
the invalidity of the subject employment non-discrimination laws. 
BEI appealed claiming that the court erred on all counts, and most
importantly, its failure to declare Montgomery County's employment
non-discrimination ordinance to be in conflict with Maryland law
and thus preempted.

BEI contended that County Code's provision prohibiting sexual
orientation discrimination conflicts with State law which has no
such prohibition.  Of BEI's six arguments on the matter, Judge
Hollander, writing for the 3-judge panel, addresses only four,
dismissing the rest as mere "conclusory assertions."  First,
Hollander explained that Maryland case law has held that the fact
that an ordinance enlarges upon the provisions of a state statute
by requiring more that the state requires creates no conflict, but
merely supplements the state law.  Moreover, when a state law
merely excludes a particular activity from its coverage, the courts
have not attributed to the state legislature an intent to preempt
local legislation regulating or prohibiting that activity.  The
court found no conflict, reasoning that "although discrimination on
the basis of sexual orientation is not specifically covered by
State law, this surely does not mean that such discrimination is
permitted."

The court considered two other similar conflict issues raised by
BEI regarding specific provisions of the County Code authorizing
the Commission to order damages and other compensatory relief and
the county requirement that complaints be filed within one year as
opposed to six months as required under the state law.  On the
latter, the court ruled that although filing with the Commission
after six months would preclude a complainant from later seeking a
State commission investigation, this does not preclude a local
commission from such a pursuit.  On the former (and BEI's only
success in its appeal of 14 issues), the court found that the State
law was clear that the monetary relief available at the
administrative level is confined to back pay.  The court
accordingly held that to the extent that the County Code authorizes
the Commission to award monetary relief in addition to back pay, it
would be invalid.  The court also rejected several other technical
claims BEI had raised.

There were other creative but meritless claims.  On a state powers
argument, BEI claimed that under the Express Powers Act granting
counties authority to enact local laws, there was no express
authority prior to 1995 for counties to enact employment
discrimination laws, because it was not until then that the state
legislature amended the act to include the authority to address
such issues.  To BEI's embarrassment, the court reminded them of a
1981 case that clearly "acknowledged that the charter counties are
permitted to enact legislation on the subject."  BEI further argued
that the ordinance is invalid because it is not a local law, in
that it is not limited in geographic scope to Montgomery County
because it includes those who "recruit[] individuals within the
county to apply for employment within the county or elsewhere." 
The court read the ordinance more narrowly, clarifying that the
discriminatory conduct by any employer within or without the County
must occur in Montgomery County, therefore the proscribed conduct
is confined to County limits.  BEI also lost its argument that the
authority to enforce Commission orders in the circuit court creates
an unconstitutional private cause of action.

BEI's lone success on the issue of monetary relief beyond back pay
was bittersweet; the court noted that other damages may be
recoverable including attorney/witness fees and costs and
apportioned 90% of the litigation bill to BEI(!).  _K. Jacob
Ruppert_

Ninth Circuit Rules in Favor of Domestic Partner in Insurance Claim

In _Fleming v. Monumental Life Insurance Company_, 154 F.3d 1001
(Sept. 1, 1998), the U.S. Court of Appeals for the 9th Circuit
ruled in favor of a surviving gay life partner in a dispute over
his partner's life insurance policy.  William L. Fleming sued
Monumental Life Insurance Company and Monumental General
Insurance Company to recover life insurance benefits due under a
policy Monumental issued to Paul Arnold, Flemingūs domestic
partner.

Fleming and Arnold purchased a home together in Seattle in 1990,
for which they obtained a mortgage.  In 1993, they purchased a
mortgage life insurance policy through a group plan available
from their mortgage company.  At this time, Arnold had been
diagnosed with AIDS.  In June, Monumental issued a policy, but
neither Arnold nor Fleming ever saw a copy of the group policy.
Both were aware that the policy included a "conversion privilege"
that allowed group policy holders to convert to individual
policies without evidence of insurability. The policy also
included several standard formalities regarding submission forms,
insurance limits, and premium payment information. 

In early 1995, Fleming and Arnold learned that their mortgage
company was going to change group insurance carriers, so they
wrote to Monumental to convert to an individual policy.  On May
9, Robin Fitzhenry, a client service associate at Monumental,
responded by mailing applications to both Fleming and Arnold. In
the accompanying cover letter, Fitzhenry advised the two to
submit monthly premiums she had calculated for the men's
"attained ages and an insurance coverage amount of $231,463.00." 
On May 25, Arnold submitted his completed application along with
a personal check to cover the premium due for the first month. 
The application Fitzhenry sent actually listed an insurance
amount of $221,463.00, $10,000 less than stated in her cover
letter.  Because the applications contained a premium table,
Fleming used those tables to determine that based on the premium
quote, Fitzhenry had made a "scrivener's error" on the
applications, and so Fleming corrected the amount to read
$231,463.  Monumental delayed responding to the application, even
though Fleming's check promptly cleared the bank, so on July 24,
Fleming spoke with Fitzhenry and she agreed with his calculation
and that the effective date of Arnold's policy was June 9, 1995. 
She also stated that the policy would be issued shortly.  Fleming
memorialized this conversation in a letter to Fitzhenry dated
August 1. Fitzhenry testified during her deposition that she
believed Fleming's letter accurately reflected the conversation
on July 24.    On July 26, Arnold died. 

On August 8, Colleen Gizinski of Monumental wrote a letter to
Fleming indicating that although Arnold's conversion application
requested coverage in the amount of $231,463, according to the
conversion privilege, his coverage could not exceed "the amount
of insurance which ends, or $18,000." The letter also indicated
that his coverage had an effective date of April 1.  She returned
Arnold's signed application on which she had crossed out $231,463
and substituted $18,000 in the space marked "Insurance Amount
Desired." She also included a check for $155.88, which she said
represented overpayment of premium.  On August 25, Fleming wrote
to Gizinski, informing Monumental for the first time of Arnold's
death, enclosed Arnold's death certificate, returned the refund
check, and demanded death benefits of $231,463.  Monumental
refused to pay and Fleming sued.  The trial court ruled in favor
of Fleming, and Monumental appealed.  

The court of appeals rejected Monumental's claim that this was a
contract subsequent to the Group Policy and that the original
terms regarding insurance limits should govern. The court
determined that Fitzhenry acted as Monumental's authorized agent
and was, in effect, able orally to modify the terms of the group
policy.  She did so and effectively confirmed the $231,463 offer
by sending a written confirmation and application.  Therefore,
<!69>any individual policy issued shall not be deemed to be a
continuation of the insurance under the Group Policy. . . but
shall be a new and separate contract."  When Arnold returned the
application with his personal check, he accepted the offer. 

Judge Susan P. Graber wrote the dissent, advancing a legalistic
argument that followed a series of insurance cases.  She
determined that "by definition, the right to convert a group
policy to an individual policy is a right granted by, and subject
to the written terms of, the group policy."  Also, the form that
Fleming sent was only an application that did not equal
"acceptance" of an offer, in Graber's view. 
 
Both sides of the court had convincing arguments, but the
majority followed the essential spirit of contract law in
striking down an unfair denial of benefits.  This ruling
implicitly sends a message that insurance companies must stand by
the promises they make to their clients and that they cannot
wriggle out of payment through strictly legalistic terms and
arguments.  Leo L. Wong

Oncale Case Settlement Announced

The landmark case in which the U.S. Supreme Court ruled last term
that same-sex sexual harassment could be actionable as sex
discrimination under Title VII of the Civil Rights Act of 1964
has been settled before trial.  The Associated Press reported
Oct. 24 that Joseph Oncale, whose trial had been scheduled to
begin Monday, Oct. 26, reached a settlement with Sundowner
Offshore Services, Inc., after two mediation sessions before
Magistrate Lance Africk. The settlement provides for an
undisclosed amount of money to be paid to Oncale within thirty
days.  Both parties agreed not to disclose the terms of the
settlement.  In his complaint, Oncale, who worked on an oil rig
in the Gulf of Mexico, alleged that he was subjected to verbal
and physical harassment (including simulated sexual assault in a
shower) so intense that he had to quit his job.  A.S.L.

Law & Society Notes

Four municipalities will vote on Nov. 3 on whether to enact
protection against discrimination based on sexual orientation:
Fort Collins, Colorado; Fayetteville, Arkansas; South Portland
and Ogunquit, Maine.  In addition, voters in Hawaii and Alaska
will vote on proposed constitutional amendments on the subject of
defining marriage; in Hawaii, the proposal gives the legislature
authority to define marriage as the union of a man and a woman,
thus effectively overruling the Hawaii Supreme Court's same-sex
marriage ruling in _Baehr v. Lewin_, 852 P.2d 44 (Haw. 1993),
while in Alaska the proposal places in the constitution a
definition of marriage as being the union of a man an a woman. 
In both of those states, lawsuits are still pending seeking
access to marriage licenses for same-sex couples.  The Mormon
Church has emerged as the most active financial proponent of both
marriage measures, having donated $600,000 to a Hawaii group
promoting that state's measure, and $500,000 to a similar group
in Alaska.  _New York Times_, Oct. 28; _Salt Lake Tribune_, Oct.
28.

The brutal murder of Matthew Shepard in Wyoming led to renewed
calls for passage of a federal hate crimes law that would cover
sexual orientation, although there was considerable debate about
the efficacy of such laws, and some commentators pointed out that
Shepard's accused murderers are subject to the death penalty
under existing Wyoming criminal law.  Among those who publicly
called for passage of the federal law were President Bill Clinton
and Attorney General Janet Reno.

A challenge to the constitutionality of Louisiana's felony sodomy
law was scheduled to go to trial on Oct. 26 before State District
Judge Robert Murphy.  Louisiana Electorate of Gays and Lesbians,
Inc., the organizational plaintiff, obtained an injunction
against enforcement of the law pending trial.  According to an
Associated Press report of Oct. 25, the state will produce expert
witnesses to show that gays can convert to heterosexuality and
that a homosexual orientation is a choice that people can refrain
from making.  The state will also argue, according to the press
report, that the law is necessary to protect the moral integrity
of the state's children.  Louisiana's statute covers both oral
and anal sex and applies to everybody regardless of gender or
sexual orientation.

The Cathedral of Hope in Dallas, Texas, described as "the
nation's largest gay and lesbian church," filed a lawsuit on Oct.
27 against WGN-TV in Chicago, which is seen nationally through
satellite feeds to major cable systems, for allegedly breaching a
contract to air a 30-minute infomercial produced by the church as
a counter to the recent advertising campaigns by conservative
Christian groups on the subject of "changing" homosexuality.  WGN
claims that it had never agreed to air the program, and several
other cable stations had previously turned it down as too
controversial for broadcast. _New York Times_, Oct. 28.

The _Cincinnati Enquirer_ reported Oct. 26 that Jaime Garner, a
former player on the Northern Kentucky University's Women's
Basketball team, has filed a federal discrimination suit against
university officials, claiming she was booted off the team
because she is a lesbian.  Garner claims that Coach Nancy Winstel
asked her about her sexual orientation, then dropped her from the
squad asserting that she "destroyed the team chemistry."  Garner
was the second-leading scorer on the team last season.

Reuters News Service reported Oct. 23 that a poll of U.S. jurors
showed that jurors are biased against big corporations, gay
people, and politicians, and would follow their beliefs
regardless of instructions from the bench.  The poll showed that
gays and lesbian who are involved in a trial are three times as
likely to face a biased jury as are African-Americans, Hispanics,
or Asians.

Rev. Gregory Dell, a Methodist minister in Chicago, will stand
trial before an ecclesiastical panel of the United Methodist
Church for performing a same-sex commitment ceremony at Broadway
United Methodist Church in the Lakeview neighborhood in
September.  The complaint against him by the bishop of the
Northern Illinois Conference of the church is the first such to
be filed since Aug. 11, when the supreme court of the
denomination declared that a prohibition against performance of
same-sex unions is binding as church law.  _Chicago Tribune_,
Oct. 23.

Bob Jones University, a Christian-fundamentalist institution, has
announced that any gay alumni who dare to set foot on campus will
be subject to arrest, according to an Oct. 23 Associated Press
report.  However, this threat does not include the on-campus art
museum, out of fear of loss to the museum's 501(c)(3) tax-exempt
status.  

Maine Medical Center, the largest employer in Portland, Maine,
has adopted a domestic partnership insurance plan that will
extend to all domestic partners of its employees, provided they
meet the requirement of being in a long-term, intimate and
committed relationship of at least one year's duration, be at
least 18 years old, live together in the same permanent
residence, and provide proof that they are financially dependent
on each other.  Blue Cross Blue Shield of Maine is reportedly
considering adopting a similar plan.  _Bangor Daily News_, Oct.
12.

Stymied by the state of North Carolina's refusal to allow
insurance companies to sell group policies that include coverage
for employees' same-sex domestic partners but not for opposite-
sex partners, Duke University is paying directly for insurance
coverage for the same-sex partners of its employees.  According
to the _Raleigh News & Observer_ (Oct. 8), the state Department
of Insurance advised Blue Cross and Blue Shield of North Carolina
in a July 30 letter: "The extension of coverage to domestic
partners must be offered to all employees regardless of sexual
orientation or the ability to enter into a legal marriage."  The
Insurance Department takes the position that limiting coverage to
same-sex partners would violate the unfair trade practices laws
of the state.  BCBS has offered to sell inclusive domestic
partnership coverage to Duke, but Duke has refused to expand its
policy, arguing that opposite-sex couples can get married if they
want benefits.

In its latest session, Congress has again attempted to censor the
Internet through the new "Child Online Protection Act" and so the
ACLU is back in court in _ACLU v. Reno II_, filed Oct. 22 in U.S.
District Court in Philadelphia (E.D.Pa.).  The coalition of
plaintiffs in the case is represented by Ann Beeson, Chris Hansen
and J.C. Salyer of the ACLU, Shari Steele of the Electronic
Frontier Foundation and David Sobel of the Electronic Privacy
Information Center, with the assistance of the law firm of Latham
& Watkins.

The New York State Unified Court System has established the
Office of the Special Inspector General for Bias Matters to
handle complaints of bias in the courts, including bias grounded
in marital status or sexual orientation discrimination.  The
office will develop a volunteer alternative dispute resolution
program to handle bias complaints.  _New York Law Journal_, Oct.
14. A.S.L.

Quebec Court of Appeal Strikes Down Higher Age of Consent for
Anal Intercourse 

On April 15, in _R. v. Roy_, 1998 CCC LEXIS 455, 125 C.C.C. 3d
442 (English translation), the Quebec (Canada) Court of Appeal
struck down sec. 159 of the Canadian Criminal Code, which
prohibits anal intercourse unless it is consensual, private and
between husband and wife (each of whom is 14 or over) or between
any two persons (each of whom is 18 or over).  For any kind of
sexual activity other than anal intercourse, the age of consent
is generally 14 under secs. 151 and 152 of the Code.  In a case
involving private, consensual anal intercourse between an adult
male and a 16-year-old male, the Court held (by 3 votes to 0)
that sec. 159 "establishes discriminatory distinctions based on
age, marital status and [indirectly] sexual orientation" contrary
to Section 15(1) (equality rights) of the Canadian Charter of
Rights and Freedoms, and that this discrimination cannot be
justified under Section 1.  The Court noted that "[a]lthough one
can argue that this legislative scheme applies to all unmarried
young people, the effect of the legislation is much more
prejudicial to homosexuals, for whom anal intercourse represents
a regular sexual practice."

The constitutional validity of sec. 159 remains uncertain,
because no appeal seems to have been taken to the Supreme Court
of Canada in _Roy_ which could settle the question for the whole
of Canada.  In _R. v. M. (C.)_ (1995), 98 C.C.C. (3d) 481, the
Ontario Court of Appeal also struck down sec. 159, with two
judges finding age discrimination and one judge finding
(indirect) sexual orientation discrimination.  But there was also
no appeal in _M. (C.)_.  Both _M. (C.)_ and _Roy_ reject the risk
of HIV transmission as a justification for a higher age of
consent for anal intercourse.  LeBel, J.A., in _Roy_ cites the
reasoning of Abella, J.A., in _M. (C.)_:  "Health risks ought to
do be dealt with by the health care system.  Ironically, one of
the bizarre effects of a provision criminalizing consensual anal
intercourse for adolescents is that the health education they
should be receiving to protect them from avoidable harm may be
curtailed, since it may be interpreted as counselling young
people about a form of [illegal] sexual conduct . . .  Hence, the
Criminal Code . . . may itself . . . contribute to the harm it
seeks to reduce."  _Robert Wintemute_
 
International Notes

The Associated Press reported Oct. 21 that newly-elected German
Chancellor Gerhard Schroeder has announced that among the
legislative initiatives of his new government will be adding
sexual orientation to anti-discrimination laws and extending
eventual legal recognition to gay couples.

The British Labour Government will introduce bills in the new
session of Parliament to lower the age of consent for gay sex to
16 and to repeal the infamous "Clause 28" under which local
councils could not spend money on any programs that might be seen
as "promoting" homosexuality.  The age of consent issue was
passed by the previous Commons, but defeated in the House of
Lords.  The government indicated that this time around it was
prepared to invoke the Parliament Act, under which the law would
have to be passed if re-presented after a second defeat in the
Lords.  _Mail on Sunday_, Oct. 11.  

Agence France Presse reported Oct. 23 that a court in Mendoza
Province, Argentina, has ruled that a same-sex couple is entitled
to the same social benefits as those enjoyed by partners in a
heterosexual legal or common-law marriage, which include welfare
payments, workers' compensation, and a pension upon death of one
of the partners.  The lawyer for the couple, Sergio Breitman,
claimed this was an unprecedented ruling for Argentina.  The name
of the couple was not reported.  

A French government proposal to recognize unmarried same-sex and
opposite-sex couples as having a legal partnership status ("Civil
Solidarity Pact") failed on Oct. 9 when enough of the majority
left members stayed away from the legislature to allow the
minority rightists to vote the measure down.  The government
announced that the bill would be resubmitted and an attempt would
be made to get the governing party members to attend the session,
perhaps as early as the end of October.  _Washington Post_, Oct.
10.

The New Zealand Press Association reported Oct. 23 that the New
Zealand Navy's Equal Employment Opportunities Coordinator, Lt.-
Commander David Washer, has ordered a supply of pink triangle
decals for use in an education program against homophobia in the
service.  The decals will be used on warships to denote that they
are "safe havens" for lesbian and gay crew members.  Perhaps the
style-conscious U.S. Navy should take the hint. . .

A working party appointed by the Attorney General of New South
Wales, Australia, has recommended amending the state's Crimes Act
to stop lawyers from using allegations of homosexual advances as
the basis for a defense of provocation.  The working party also
recommended the homosexual age of consent to 16, and issuing a
formal reminder to judges that they are not "courts of morals,"
especially in cases where alleged victims do not conform with
majority stereotypes.  The Attorney General, Mr. Shaw, distanced
himself from some of the recommendations, but embraced the
homosexual advance issue, stating: "The current case in the U.S.
involving the senseless murder of a gay man in Wyoming at the
hands of two men claiming provocation is cause for all
governments to be concerned to review this critical area of the
law." _Sydney Morning Herald_, Oct. 15.  A.S.L.

Professional Notes

 A group of lawyers is attempting to establish an International
Gay Attorneys Network, which would enable each participating
attorney to serve clients not only locally but worldwide. 
According to an email message distributed by attorneys Stefan A.
Haas, in San Francisco, and Helmut Graupner, in Vienna, Austria,
there would be branches throughout the world, each branch of the
network consisting of "a gay, bisexual or a pronounced gay-
friendly attorney serving his g/b clientele not only in specific
g/b affairs but offering them legal support in all their
businesses, needs, problems, worries, sorrows and troubles." 
They claim that lawyers are already participating in the Network
from Berlin, Geneva, Munich, Prague, San Francisco, and Vienna. 
Any attorneys who might be interested in participating should
contact Helmut Graupner: telephone 43-676-309 47 37; email
<a8301536@unet.univie.ac.at>.

Students at Harvard Law School are planning a conference on same-
sex marriage issues to be held Feb. 12-13, 1999, in Cambridge. 
Co-sponsors of the conference are Harvard Law School Lambda,
Harvard Civil Rights-Civil Liberties Law Review, Harvard Civil
Liberties Union, Gay & Lesbian Advocates & Defenders, Lambda
Legal Defense & Education Fund, the National Center for Lesbian
Rights, and the ACLU Lesbian and Gay Rights Project.  The
conference will be titled: Freedom to Marry: Consolidating
Strategies, Planning Victories.  Papers are solicited for the
conference on constitutional theories supporting same-sex
marriage, constitutional theories for challenging federal and
state versions of DOMA, and legal arguments for state recognition
of foreign-jurisdiction same-sex marriages.  For more
information, contact conference co-chairs: Justin Deabler, 617-
591-9560, jdeabler@law.harvard.edu; Sharon McGowan, 617-493-9112,
smcgowan@law.harvard.edu.

The National Lesbian & Gay Law Foundation has announced its
second Student Writing Competition.  Winner of the first
competition was Dirk Selland, for his article on challenges to
the Maryland sodomy law.  The deadline for the second competition
is June 15, 1999.  Papers no longer than 25 pages may address any
"cutting edge legal issue affecting the Lesbian, Gay, Bisexual
and/or Transgender Community."  First prize includes $1,000,
publication in the Journal of Law & Sexuality (published at
Tulane University), and free participation (travel, hotel,
registration fees) at Lavender Law 1999 in Seattle to present a
workshop on the winning paper and receive the monetary prize. 
For full details, contact Bacher Associates at
Lbacherjr@counsel.com (or write: NLGLA Writing Competition,
Bacher Associates, Lincoln Centre III, Suite 1600, 5430 LBJ
Freeway, Dallas, TX 75240).

The AIDS Legal Council of Chicago has a staff attorney opening
with a concentration in family law issues.  The attorney will
assist clients in permanency planning through advice and
counseling, drafting simple wills and powers of attorney,
preparing guardianships, and when necessary, representing clients
in court and administrative proceedings.  Applicants must be
admitted to the Illinois bar, with a preference for those fluent
in Spanish with experience in HIV law, child welfare law,
discrimination law, and public benefits law.  Salary range is
$34k+ depending on experience.  Send resume and cover letter to:
Ann Hilton Fisher, Executive Director, AIDS Legal Council of
Chicago, 220 S. State #1330, Chicago IL 60604.  ALC is an equal
opportunity employer.

The _Cincinnati Enquirer_ (Oct. 15) ran a highly complimentary,
detailed profile on openly-gay local attorney Scott Greenwood who
is serving as the Ohio Civil Liberties Union's volunteer general
counsel in addition to running his own law practice in
Cincinnati.  Greenwood has been a prominent participant in a
variety of high profile civil liberties cases, including the
fight against Issue 3 and his own lawsuit as a plaintiff alleging
discrimination in his discharge from a large Cincinnati law firm. 
A.S.L.

AIDS & RELATED LEGAL NOTES

Supreme Court May Resolve Circuit Split Over ADA/SSDI Estoppel
Issue

The U.S. Supreme Court announced on October 5 that it will
consider whether people who are receiving Social Security
disability benefits (SSDI) may bring discrimination claims under
the Americans With Disabilities Act (ADA).  The Court's eventual
ruling in the case, which will be argued this winter, may be
significant for people with AIDS.

The ADA protects qualified persons with disabilities from
discrimination in employment, public services and public
accommodations.  In order to be "qualified" for protection from
employment discrimination, an individual with a disability must
be able to perform the essential functions of the job, with or
without reasonable accommodations.  Under SSDI, a person
establishes eligibility for disability benefits by showing that
they are not capable of holding gainful employment.

In the case granted review by the Court, _Cleveland v. Policy
Management Systems_, No. 97-1008, the U.S. Court of Appeals for
the 5th Circuit in New Orleans ruled that a person who has
qualified for disability benefits should be presumed not to be
qualified under the ADA, and dismissed a discrimination claim
brought by a woman who had received disability benefits after
suffering a stroke.  

In one of the first cases to raise this issue, _McNemar v. Disney
Store, Inc._, 91 F.3d 610 (3rd Cir. 1996), cert. denied, 117
S.Ct. 958 (1997), a gay man with HIV infection who was discharged
by a Walt Disney Store, purportedly for violating a company rule,
subsequently obtained disability benefits based on his
AIDS-related condition.  He filed a discrimination claim about
his discharge, but was thrown out of court because he had
received disability benefits based on his statement to the Social
Security office that he was disabled from working; the 3rd
Circuit ruled that the plaintiff should be estopped from arguing
that he is capable of working, when he has previously submitted a
statement under oath to the Social Security Administration that
he is not physically capable of holding gainful employment.  

At the time the Court denied certiorari in _McNemar_, there was
no split in circuit authority, but now the federal appeals courts
are sharply divided about whether receiving disability benefits
should disqualify somebody from ADA protection.  The District of
Columbia Circuit Court of Appeals has ruled that the tests for
disability under the two statutes are different enough so that an
eligibility determination for benefits should not preclude an ADA
discrimination suit.  _Swanks v. Washington Metropolitan Area
Transit Authority_, 116 F.3d 582 (D.C.Cir. 1997), and a panel of
the 3rd Circuit has appeared to disavow the _McNemar_ ruling in
_Krause v. American Sterilizer Co._, 126 F.3d 494 (3rd Cir.
1997).

The Supreme Court granted review to address two questions:
Whether applying for or receiving disability benefits creates a
presumption that somebody is not qualified under the ADA, and if
such a presumption is not created, what weight a court in an ADA
case should give to the receipt of disability benefits in ruling
on whether an individual is qualified under the ADA?  A.S.L.

Supreme Court Refuses to Consider AIDS Discrimination Claim by
Estate of Health Care Worker

The U.S. Supreme Court announced Oct. 5 that it will not review a
decision by the U.S. Court of Appeals for the 6th Circuit which
had rejected a discrimination claim by an HIV+ health care
worker.  _Estate of William Mauro v. Borgess Medical Center_,
1998 WL 273378; decision below, _Mauro b. Borgess Medical
Center_, 137 F.3d 398 (6th Cir. 1998).  Mauro was a surgical
technician who was dismissed when he refused to submit to an HIV
test.  The district court, affirmed by the 6th Circuit, decided
that because a surgical technician assists in the operating room
under circumstances that may theoretically expose his blood to
the blood of patients, the hospital had a right to demand HIV
testing upon suspicion that a surgical technician might be
infected with HIV.  The court, in line with virtually all other
courts that have considered the issue, decided that even the
minuscule risk of transmission from health care worker to patient
in this setting constitutes a "significant risk" for purposes of
the Americans With Disabilities Act.  A.S.L.

11th Circuit Orders Remand of Public Accommodations Case to State
Court

In an interesting decision reflecting the jurisdictional
complexities of the interrelationship of the Americans With
Disabilities Act and state laws, the U.S. Court of Appeals for
the 11th Circuit vacated a district court decision and ordered
remanded to state court a claim of public accommodations
discrimination by an HIV+ plaintiff seeking damages for refusal
of medical treatment.  _Jairath v. Dyer_, 154 F.3d 1280 (11th
Cir., Sept. 16, 1998).

Vimal Jairath did not like the way his advancing HIV condition
made his face appear "thin and gaunt," so he went to Dr. Wallace
K. Dyer, a plastic surgeon, seeking to have a Gore-Tex implant
procedure on his face.  Upon learning that Jairath was HIV+, Dyer
refused to perform the procedure, arguing that in light of the
solely cosmetic purpose of the procedure and the increased risk
of infection to the doctor, he was entitled to deny treatment.  

Jairath found another doctor to perform the procedure, but filed
suit for damages against Dyer in a Georgia state court, alleging
a violation of O.C.G.A. sec. 51-1-6, which provides: "When the
law requires a person to perform an act for the benefit of
another or to refrain from doing an act which may injure another,
although no cause of action is given in express terms, the
injured party may recover for the breach of such legal duty if he
suffers damage thereby."  Jairath claimed that Title III of the
ADA creates a duty on the part of Dyer, and that Dyer's violation
of that duty caused him compensable injury.

Dyer removed the case to federal court, arguing that Jairath's
claim raised a question of federal law under the ADA.  Jairath
sought to have the case remanded back to state court, arguing
that it was essentially a state law claim.  The federal district
court sided with Dyer, denied the remand, and granted summary
judgment on the merits to Dr. Dyer.  Jairath appealed.

In an opinion by Circuit Judge Anderson, the court found that
this was essentially a state law case that should have been
remanded.  Anderson relied heavily on _Merrell Dow
Pharmaceuticals Inc. v. Thompson_, 478 U.S. 804 (1986), where
plaintiff sued a drug company for negligence, asserting the
company's violation of an FDA regulation as creating a rebuttable
presumption of negligence.  The Supreme Court ruled in that case
that as Congress had not created a private right of action that
would afford the relief Thompson was seeking, it would go against
congressional intent for a federal court to adjudicate such a
claim on the merits under its federal question jurisdiction.  

Anderson found Jairath's case to be analogous.  In Title III of
the ADA, prohibiting disability discrimination by places of
public accommodation, Congress limits private claims to
injunctive relief.  Jairath is not seeking injunctive relief; he
has had the procedure performed by another doctor and is not
seeking further treatment from Dyer.  Since monetary damages are
not available in a private right of action under the ADA, the
district court is without jurisdiction to rule on the merits of
Jairath's claim, and should have remanded the case.

The court vacated the district court's judgment on the merits and
remanded the case with instructions to return it to the state
court system.  A.S.L.

D.C. Circuit Rejects Challenge to Limitation on Damage Suites by
Prisoners in AIDS Privacy Case

Affirming a dismissal by the U.S. District Court, a unanimous
panel of the U.S. Court of Appeals for the D.C. Circuit ruled
Oct. 27 that a statute depriving prisoners of the right to sue
for damages for emotional and mental distress in the absence of
physical injuries is constitutional, thus ending a lawsuit by a
prisoner seeking damages for the improper revelation of his HIV
status.  _Davis v. District of Columbia_, 1998 WL 743572.

Michael Davis, an inmate at D.C. Central Prison in Lorton,
claimed that a prison official improperly broke the seal on
Davis's medical records and disclosed their contents to other
people without Davis's consent, spreading a story that Davis was
"dying of HIV."  Claiming a violation of his privacy right
resulting in emotional and mental distress, Davis sued under 42
U.S.C. sec. 1983.  The district court dismissed the action sua
sponte under 42 U.S.C. sec. 1997e(e), a 1996 measure passed by
Congress to cut down on "frivolous" lawsuits by prisoners.  Sec.
1997e(e) provides: No Federal civil action may be brought by a
prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury.

Davis contended that sec. 1997e(e) violates his right to equal
protection and to access to the courts.  In rejecting both
claims, Circuit Judge Williams found that although Davis may have
a constitutional right of privacy in his medical records, there
is no constitutional requirement that Congress afford him a full
civil remedy for its violation.  Williams found that the statute
merely deprives prisoners of the right to sue for damages for
non-physical injuries, while leaving intact their right to sue
for injunctive relief.  (In this case, injunctive relief was not
sought, and Williams observed that Davis alleged in his complaint
that the prison official was violating prison rules by unsealing
and sharing the contents of his medical records with others.)
"Here we do not see that the preclusion of backward-looking
relief in cases where the wrong causes only mental and emotional
injury, and there is no prior physical injury, could be said to
`directly and substantially' interfere with the exercise of the
hypothetical right," Williams wrote.  

Similarly, Williams rejected the claim that this limitation of
damages constituted an unconstitutional deprivation of access to
the courts.  "The `right of access' cases protect prisoners from
being unduly hampered in litigation by their incarceration; they
provide no doctrinal support for affording them heightened
judicial scrutiny over congressional power to define remedies,"
Williams asserted.  A.S.L.

Federal Court Denies ADA Protection to Person Believed by
Employer to be HIV+

Is a person who is erroneously perceived as having asymptomatic
HIV/AIDS entitled to protection under the ADA for on-the-job
harassment?   According to U.S. District Court Judge Lee of the
Northern District of Indiana, the answer to this question is a
resounding no.  In _EEOC & Smith v. General Electric Co._, 1998
WL 67485 (July 21), Judge Lee granted summary judgment to General
Electric after concluding that the plaintiff was not a "qualified
individual with a disability."  Even though there was evidence
that GE supervisors regarded Smith as having HIV, Judge Lee ruled
that Smith's claims failed because there was no evidence that GE
subjectively perceived Smith as being substantially limited in a
major life activity.

Smith was hired by GE in 1980 as a standardizing electrician. 
During a hospital visit in 1992 for an esophagal tear, Smith
alleged he became convinced that he had HIV when a doctor at the
hospital asked him how long he had been HIV+.  Smith was not
tested for HIV at the hospital.  The doctor denied asking this
question or otherwise inquiring about Smith's HIV status.  

According to Smith, rumors spread at GE that he had AIDS.  Smith
contended that he was subjected to harassment on the job as a
result of these rumors.  The harassment culminated in an incident
where someone at GE allegedly dropped a container of enamel on
Smith in August of 1994.  Smith was hospitalized as a result of
the incident, and refused to return to work after he was released
from the hospital.  Smith filed a charge of discrimination with
the EEOC, alleging that his rights were violated under the ADA.

GE alleged that Smith knew he did not have HIV, yet continued to
spread lies to his employer to perpetuate the perception that he
was HIV+.  For example, Smith tested negative for HIV on several
occasions, and was advised by his own family physician that he
did not have HIV.  Nonetheless, Smith falsely told GE medical
staff that he was going to Atlanta to participate in an HIV
study, and was actively undergoing other treatment for HIV
infection.

Smith alleged that he was covered under the ADA as an individual
with a disability because he was "regarded as" having HIV by his
employer, and because the alleged harassment against him resulted
from the perception that he had HIV.  However, the court
concluded that this was not enough for Smith to survive summary
judgment.  According to the court, the ADA requires Smith to
demonstrate that GE "acted or failed to act based on the belief
that Smith was substantially limited in a major life activity." 
The court rejected Smith's argument that HIV is inherently a
substantially limiting impairment.  The court instead relied on
evidence that Smith was able to perform his normal job duties,
and that none of Smith's supervisors questioned his ability to do
his job despite any perception of his having HIV. 

Lee's decision was issued two days after the United States
Supreme Court's pivotal HIV/ADA ruling in _Bragdon v. Abbott_,
1998 WL 332958 (June 25).  The decision does not cite _Bragdon_,
despite _Bragdon_'s potential impact on Smith's claims against
GE.  In _Bragdon_, the Supreme Court concluded that asymptomatic
HIV infection is an impairment from the moment of infection,
within the meaning of the ADA.  As reported in the Summer 1998
issue of the _Lesbian/Gay Law Notes_, Justice Kennedy's dicta --
read together with Justice Ginsburg's concurring opinion, which
lists a broad range of activities affected by HIV infection --
hinted that virtually all people with HIV infection should be
recognized by lower courts as being covered under the ADA.

Lee's ruling strays from this reading because Smith was required
to show that GE subjectively perceived him to be substantially
limited in a major life activity, even after the court found that
he was perceived has having HIV by his employer.  If Smith
appeals Judge Lee's decision, the case could offer an early test
of _Bragdon_'s impact on the courts' analysis of the middle prong
of the 3-part disability definition in the ADA: "regarded as
having such an impairment."  _Ian Chesir-Teran_

New Jersey U.S. District Court Refuses to Dismiss HIV Privacy
Claim

In _P.F. v. Mendres_, 1998 WL 678115 (Sept. 29), the U.S.
District Court for New Jersey refused to dismiss an AIDS privacy
case against a state official who was claiming qualified immunity
from suit.  P.F., suing on behalf of herself and her foster
children, accused Jean Mendres, Deputy Director of the Division
of Youth and Family Services (DYFS), of violating their right to
privacy by disseminating information that two of the children are
HIV+.  

P.F. serves as a foster mother for S.F. and T.F., who DYFS has
designated "medically fragile" children.  Shortly after the birth
of N.F., a biological sibling of S.F., in May 1995, P.F.
requested that she be allowed to provide a home for N.F.  The
initial request was denied on May 19 by the Central Regional
Administrator of DYFS but the ruling was reversed on August 3 by
the Administrative Review Officer of the Northern Regional Office
of DYFS.  On August 14, P.F. received a letter from Mendres,
announcing that she was overturning the decision to place N.F. in
P.F.'s care sua sponte.  This letter contained "confidential HIV
information," and was distributed to seven individuals other than
P.F and allegedly placed in the P.F. case file "where it is
available to any DYFS employee who has access to the file."  P.F.
denied ever authorizing or consenting to the disclosure of the
HIV information contained in the letter.

P.F.'s Complaint states four claims: first, a sec. 1983 violation
of plaintiffs' constitutional right to privacy protected under
the 9th and 14th Amendments; second, a violation of right to
privacy guaranteed in Article 1, Section 1, of the New Jersey
Constitution; third, a violation of N.J. Statute 26:5C-7, by
revealing HIV information without the plaintiffs' consent; and
fourth, a violation of constitutional due process when Mendres
decided to overturn the placement of N.F. with P.F. without
notifying the prospective foster parent, and in the absence of
any established procedure permitting such conduct.

Under sec. 1983, the plaintiff must allege that a person acting
under color of state law has violated a right secured by federal
law, either constitutional or statutory.  Government officials
sued in their official capacities are insulated from civil
damages liability when their actions do not "violate clearly
established statutory or constitutional rights of which a
reasonable person would have known."  In this case, District
Judge Cooper asked whether dissemination of the August 14 letter
to individuals other than P.F. "violated plaintiffs' clearly
established right to be free from an unreasonable intrusion into
their privacy as that right was understood at the time by
reasonable DYFS officials."  

The court determined that it could not determine as a matter of
law whether the defendants had violated the plaintiffs' right to
privacy because "[n]ecessarily subsumed in [that] inquiry . . .
is an analysis of whether defendants' actions rose to the level
of a constitutional violation."  3rd Circuit precedent specifies
a 7-prong test for making this determination.  The first five
prongs relate to the individual's interests, and hence posed
little trouble for this case.  However, the court noted that it
could not evaluate the last two prongs, which pertained to the
government's interest in disclosure, because "[i]n order to make
that assessment, [the court] must have information which
indicates: (1) what role each individual who received the letter
played in the placement process, and (2) if those individuals had
a particular need to know the information placed in the August 14
letter."  Thus, even though the court recognized that issues of
qualified immunity should be decided early in the litigation, it
acknowledged that without this information it could not determine
"whether defendant's conduct was justified under the
circumstances."  

The court decreed limited discovery "concerning the nature of the
actions which Mendres took in disseminating the August 14 letter,
her reasons for disclosing the information to those named in the
Complaint, and the roles that each of those individuals played in
the process of determining the appropriate placement for N.F." 
Judge Cooper noted that the extent to which DYFS officials
employed adequate safeguards to protect against the unauthorized
disclosure of confidential information would also be relevant to
its inquiry.  Finally, the court emphasized that the granting of
initial discovery did not prejudice the right of the defendants
to file a motion for summary judgment if, after discovery, the
factual disputes regarding qualified immunity have been resolved
in its favor.  _Sharon McGowan_

Colorado Appeals Court Bars Expert Testimony on Transfusion
Testing

The Colorado Court of Appeals affirmed a trial court's summary
judgment denying the admissibility of scientific evidence by a
plaintiff infected with AIDS by transfusion.  _Smith v. Belle
Bonfils Memorial Blood Center_, 1998 WL 684332 (Sept. 3).

Plaintiff Christine Smith, given HIV-contaminated blood in the
course of a hip operation, alleged that the national blood
banking industry, including Belle Bonfils, acted negligently in
failing to use an additional screening procedure.  The procedure
requires that blood donations be stored frozen during a "window
period," after passage of which the donor is retested for HIV
before the donated blood is used.  The "window period" is
determined by the amount of time it takes for an HIV+ donor's
immune system to produce enough antibodies to be medically
detectable, which in 1993 was approximately twenty-two days from
the date of infection.  Belle Bonfils tested the blood given to
Smith during the window period. 

Smith sought to introduce the deposition of an expert that, had
this procedure been in place in 1993, plaintiff would not have
received the infected transfusion.  Belle Bonfils countered with
expert depositions stating that said procedure could not
practically be applied to the nation's blood supply.  Belle
Bonfils' experts testified that: "(1) a large number of blood
donors would be needed to implement the freezing and retesting
method and such donors were simply unavailable; and (2) the
opinion of plaintiff's expert lacked scientific validity because
he had failed to explain how the freezing and retesting process
could be applied on a large scale without crippling the nation's
blood supply."

The appellate court concluded that the testimony of Smith's
expert did not meet the admissibility requirements for scientific
evidence set forth in _Frye v. United States_, 293 F. 1013
(D.C.Cir. 1923), or those in _Daubert v. Merrell Dow
Pharmaceuticals, Inc._, 509 U.S. 579 (1993).  The _Frye_ test
remains the standard in Colorado; the appellate court concluded
that the trial court's application of _Daubert_ was a harmless
error.  _Frye_ requires that the techniques used to apply a
generally accepted principle must themselves be generally
accepted in the relevant scientific community.  To the contrary,
the court found that the freeze and retest principle "applied on
a mass level, has not been subjected to peer review or
publication, nor has it been accepted in the scientific
community," and would require a drastic increase in the nation's
blood supply. 

The _Daubert_ rule tests: "(1) whether the theory/technique can
be and has been tested; (2) whether it has been subjected to peer
review and publication; (3) the known or potential rate of error;
and (4) whether it has been generally accepted within the
scientific community.<!70>  The court noted that while the freeze
and retest technique has been tested and used on a local level,
"scientific validity for one purpose is not necessarily
scientific validity for other, unrelated purposes," i.e. national
application.  _Mark Major_

N.Y. Appellate Division Upholds Denial of Summary Judgment in
HIV-Discrimination Case

Affirming an order denying summary judgment to the employer in an
HIV-discrimination case, the N.Y. Appellate Division, 1st
Department, found factual issues requiring a trial of the claim. 
_Gilbert v. Related Management Co._, NYLJ, Oct. 8, 1998, p.27.

Cliff Gilbert, described in the per curiam opinion as an "openly
gay man," claims that upon returning to work after suffering a
bout of shingles, he was told by his supervisor that she was
concerned he might have AIDS.  He claims that after this
conversation he was demoted and discharged, and alleges
discrimination based on perceived HIV status and AIDS.  The
employer moved for summary judgment, relying upon statements by
members of its staff that they were ignorant of the plaintiff's
HIV status.

The court found that Gilbert had alleged facts sufficient to make
out a prima facie case of disability discrimination, and imputing
knowledge to the employer.  Thus, there was a clash as to a
central fact in the case, and "the truthfulness of defendant's
assertions of ignorance is properly left for determination by the
factfinder."  A.S.L.

HIV+ Prisoner May Have Received Ineffective Assistance of Counsel
on Guilty Plea

An HIV+ prisoner is entitled to a determination whether his
counsel provided ineffective assistance in advising on a possible
plea bargain, due to inaccurate advice about his ability to be
placed on work release.  _Brown v. State_, 1998 WL 737956
(Alabama Ct. Crim. App., Oct. 23).  

On January 23, 1997, Joseph Brown pled guilty to burglary,
assault and theft charges after his attorney informed him that he
would be placed on work release within 18 months if he took the
plea offered by the state.  Counsel knew that Brown was HIV+ when
he offered this advice.  Brown pled guilty and was sentenced to
20 years.  After he was incarcerated, he learned that due to his
HIV+ status he was not eligible for participation in the state's
prison work release program.  He petitioned the court to have his
guilty plea set aside, on the ground that he would not have pled
guilty had he been properly advised about his ineligibility for
work release.  The circuit court dismissed his petition, finding
that such a petition was not an appropriate method to challenge a
denial of work release participation.

In a brief opinion by Judge Baschab, the Alabama Court of
Criminal Appeals found that the circuit court erred by
considering this a petition to challenge denial of work release. 
Rather, this was a petition to set aside the plea on grounds of
ineffective assistance of counsel.  Baschab stated: "He has
stated a claim that, if true, could entitle him to relief."  The
matter was remanded to the circuit court for a determination on
the merits of the petition.  A.S.L.

AIDS Law & Society Notes

New attention was drawn to the devastating AIDS epidemic in South
and Central Africa by a report released Oct. 28 by the Population
Division of the United Nations.  The report said AIDS has
achieved pandemic proportions in several sub-Saharan countries,
where at least one in four people is infected with HIV.  Life
expectancy in Botswana, which was 61 years at birth five years
ago, is now 47 years at birth and is expected to drop further to
41 years by 2005.  The report noted that 86 percent of the people
now living with HIV reside in the 34 countries of sub-Saharan
Africa, and that 91 percent of the world's recorded AIDS deaths
last year occurred in these 34 countries.  _New York Times_, Oct.
28.

New medications have sharply altered vital statistics for people
with AIDS in the United States.  According to statistics released
in October, AIDS-related deaths in 1997 were half as many as in
1996, although studies show that the number of new HIV infections
in the U.S. have stayed stable at an annual rate of 40,000.  _New
York Times_, Oct. 8.

A medical expert panel has recommended to the Centers for Disease
Control & Prevention that all pregnant women should be tested for
HIV as part of routine prenatal care.  The panel asserted that
such a procedure could lead to a further reduction in the number
of newborns who are infected, because of the availability of
treatments that will sharply reduce the amount of HIV in infected
mothers' bloodstreams.  _New York Times_, Oct. 15.

The continuing controversy about proposals to require name-
reporting to health agencies of those testing positive for HIV
received new fuel by two studies published in the _Journal of the
American Medical Association_ on Oct. 28.  One, undertaken by
federal researchers in six states that require name-reporting,
concluded that the requirement did not have the effect of
significantly reducing the number of people getting tested.  The
other, undertaken by researchers at two hospitals in San
Francisco involving a survey of AIDS patients in seven states,
found that those who test anonymously seek testing and treatment
significantly earlier than those who are tested under
"confidentiality" policies that include name-reporting.  _Los
Angeles Times_, Oct. 28.

Reporting on lawsuits brought by the Equal Employment Opportunity
Commission against Rockwell International Corp. on behalf of job
applicants who were denied employment based on diagnostic
predictions of future disease arising from pre-employment
physical exams, the _Washington Post_ (Oct. 27) reported data
from an American Management Association study showing that about
four percent of companies surveyed are testing prospective
employees for HIV.  The EEOC contends that such testing violates
the Americans With Disabilities Act if the results are being used
to deny employment opportunities.

Greedy lawyers get their comeuppance from 7th Circuit Chief Judge
Richard Posner in _In re Factor VIII or IX Concentrate Blood
Products Litigation_, 1998 WL 724974 (Oct. 19).  Under a
negotiated settlement approved in a consent decree, HIV-infected
hemophiliacs were each to receive $100,000 net for release of
their negligence claims against the blood-clotting medication
manufacturers, and the manufacturers were to create a $40 million
fund to cover court costs and attorney fees associated with the
case.  As part of that settlement, attorneys would be compensated
from the fund and would release their claims for contingent fees
under the contracts with their clients.  However, it appears that
so far the settlement has yielded a payout by the manufacturers
to the hemophiliacs of about $600 million, which means the money
available for attorney fees (less than $40 million) is far below
the contingent fees the attorneys expected to receive, which
would have amounted to at least $300 million (assuming all
infected hemophiliacs ultimately file their claims).  So now the
attorneys are trying to go after their contingent fees, but
Posner won't let them, affirming an injunction issued by the
district court in an opinion strewn with colorful language.  Fun
reading...   

The federal circuit courts continue to be deeply divided over
employer obligations to accommodate persons with disabilities
under the ADA.  Most recently, the D.C. Circuit and the 9th
Circuit seemed to go in different directions within days of each
other in _Aka v. Washington Hospital Center_, 1998 WL 698396
(D.C.Cir., en banc, Oct. 9), and _Barnett v. U.S. Air, Inc._,
1998 WL 685838 (9th Cir., Oct. 6).  The crux of the dispute is
the degree to which the burden should be placed on employers to
take affirmative steps to accommodate long-time employees who
develop disabling conditions; the 9th Circuit would put most of
the burden on the employee, while the D.C. Circuit construes the
ADA to place more of a burden on the employer.  Perhaps the
continuing circuit splits on this issue, of increasing
significance to people with HIV/AIDS, will lead to Supreme Court
review soon.  

The newest federal appropriations bill, passed prior to the
Congressional election recess, bans use of federal money as well
as local city funds for needle exchange programs in the District
of Columbia.  The measure even threatens to withdraw government
funding from any organization that uses private money to fund
needle exchanges.  _Washington Post_, Oct. 22.  Query: Is this
measure part of a plan by the Republican majority in Congress to
reduce the population of undesirable (presumably non-Republican)
voters in the district, through transmission of HIV?  A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES:

Abrams, Kathryn, _The New Jurisprudence of Sexual Harassment_, 83
Cornell L. Rev. 1169 (July 1998) (and _Postscript: A Response to
Professors Bernstein and Franke_ [see below]).

Austin, Janice L., Patricia A. Cain, Anton Mack, J. Kelly
Strader, and James Vaseleck, _Results from a Survey: Gay,
Lesbian, and Bisexual Students' Attitudes About Law School_, 48
J. Legal Educ. 157 (June 1998).

Barnard, Catherine, _The Principle of Equality in the Community
Context:_ P, Grant, Kalanke_ and_ Marshall_: Four Uneasy
Bedfellows?_, 57 Cambridge L.J. 352 (July 1998).

Bernstein, Anita, _An Old Jurisprudence: Respect in Retrospect_,
83 Cornell L. Rev. 1231 (July 1998) (response to Abrams, above).

cunningham, e. christi, _The Rise of Identity Politics I: The
Myth of the Protected Class in Title VII Disparate Treatment
Cases_, 30 Conn. L. Rev. 441 (Winter 1998).

Franke, Katherine M., _Gender, Sex, Agency and Discrimination: A
Reply to Professor Abrams_, 83 Cornell L. Rev. 1245 (July 1998).

Grodin, Joseph R., _Rediscovering the State Constitutional Right
to Happiness and Safety_, 25 Hastings Const. L. Q. 1 (Fall 1997).

Hutchinson, Darren Lenard, _Accommodating Outness:_ Hurley_, Free
Speech, and Gay and Lesbian Equality_, 1 U. Pa. J. Const. L. 85
(Spring 1998).

Quinan, Robert L., Jr., _To Be Out or Not to Be Out?_, 3 Careers
& the Minority Lawyer No. 2, 34 (Fall 1998).

Ralston, Julie Yuki, _Geishas, Gays and Grunts: What the
Exploitation of Asian Pacific Women Reveals About Military
Culture and the Legal Ban on Lesbian, Gay and Bisexual Service
Members_, 16 L. & Inequality 661 (Summer 1998).

Udell, Collin O'Connor, _Intimate Association: Resurrecting a
Hybrid Right_, 7 Tex. J. Women & L. 231 (Spring 1998).

_Student Notes & Comments:_

Cox, Jeffrey L., _Defining a New Medium of Communication Under
the First Amendment: The Supreme Court Tackles Speech on the
Internet in_ Reno v. American Civil Liberties Union, 22 Nova L.
Rev. 763 (Spring 1998).

Davis, Linda K., _When is Same-Gender Sexual Harassment
Actionable Under Title VII?_ Fredette v. BVP Management, 22 Nova
L. Rev. 559 (Winter 1998).

Dlabik, Charles J., _Convicted Sex Offenders: Where Do You Live?
Are We Entitled to Know? A Year's Retrospective of Ex Post Facto
Challenges to Sex Offender Community Notification Laws_, 22 Nova
L. Rev. 585 (Winter 1998).

Famoso, Robin, _Ambush TV: Holding Talk Shows Liable for the
Public Disclosure of Private Acts_, 29 Rutgers L.J. 579 (Spring
1998).

Readler, Chad A., _Local Government Anti-Discrimination Laws: Do
They Make a Difference?_, 31 U. Mich. J. L. Reform 777 (Spring
1998).

SimmsParris, Michele M., _What Does It Mean to See a Black Church
Burning?  Understanding the Significance of Constitutionalizing
Hate Speech_, 1 U. Pa. J. Const. L. 127 (Spring 1998).

Testa, Nicole, _Sentenced to Life? An Analysis of the United
States Supreme Court's Decision in_ Washington v. Glucksberg, 22
Nova L. Rev. 821 (Spring 1998).

_Specially Noted:_

Symposium, _Constitutional Issues Involving Use of the Internet_,
8 Seton Hall Const. L. J. No. 3 (Summer 1998)(several articles
focus on Internet privacy and censorship).

AIDS & RELATED LEGAL ISSUES:

Annas, Dr. George J., _Protecting Patients from Discrimination --
The Americans With Disabilities Act and HIV Infection_, 339
N.Eng.J.Med. No. 17, at 1255 (10/22/1998).

_Specially Noted:_

Vol. 113, Supplement 1 (June 1998) of _Public Health Reports_
consists of an extended symposium of short articles about various
aspects of AIDS, HIV-transmission, and drug abuse.

EDITOR'S NOTE:

All points of view expressed in _Lesbian/Gay Law Notes_ are those
of identified writers, and are not official positions of the
Lesbian & Gay Law Association of Greater New York or the LeGaL
Foundation, Inc.  All comments in _Publications Noted_ are
attributable to the Editor.  Correspondence pertinent to issues
covered in _Lesbian/Gay Law Notes_ is welcome and will be
published subject to editing.  Please address correspondence to
the Editor or send via e-mail.