LESBIAN/GAY LAW NOTES ISSN 8755-9021 December 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; Arthur J. Levy, Esq., Brooklyn, N.Y.; 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 LeGaL Homepage: http://www.interport.net:80/~le-gal Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln (C) 1998 by the LeGaL Foundation of the Lesbian & Gay Law Association of Greater New York $45/yr by subscription; Foreign Rate US$60 GEORGIA SUPREME COURT DUMPS SODOMY LAW; FINDS STATE PRIVACY VIOLATION The Georgia Supreme Court ruled on Nov. 23 that the state's felony sodomy law, OCGA sec. 16-6-2(a), which authorized up to 20 years of imprisonment for anybody convicted of engaging in oral or anal sex regardless of consent, violates the Georgia constitutional right of privacy. _Powell v. State_, 1998 WL 804568. The statute that the court struck down is the same one that was upheld by the U.S. Supreme Court in its infamous decision in _Bowers v. Hardwick_, 478 U.S. 186 (1986). Although the ruling came in a heterosexual sodomy case, the invalidation of the statute, which does not distinguish between heterosexual and homosexual conduct, appears total. This new challenge to the Georgia sodomy law arose from the prosecution of Anthony San Juan Powell, who was charged with rape and aggravated sodomy against his wife's 17-year old niece. Powell testified that their sexual activity, which included cunnilingus, was consensual. At the conclusion of the trial, the judge charged the jury that even if they believed Powell's testimony, they could convict him of consensual sodomy under Georgia criminal law. The jury convicted Powell of consensual sodomy, and he appealed. The opinion for the court by Chief Justice Robert Benham based the decision on a little-known ruling, _Pavesich v. New England Life Insurance Co._, 50 S.E. 68 (Ga. 1905), which was described as the first decision by a state high court to find a constitutional right of privacy to be implied by a general guarantee of due process of law. In that case, the Georgia court held that a man had a claim for invasion of privacy under the state constitution against a life insurance company that had used his photograph in a newspaper advertisement without his permission. In the course of its 1905 decision, the court used sweeping rhetoric to describe a fundamental right of privacy embedded in the guarantee of due process of law in the state's constitution. Tracing the right of privacy back to ancient Roman law, the court described this liberty interest as "embracing the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common good." Furthermore, said the 1905 court, this includes "the right to live as one will, so long as that will does not interfere with the rights of another or of the public," and the "right to be let alone so long as one was not interfering with the rights of other individuals or of the public." In more recent years, Georgia courts had developed this right to include, for example, the right of a state prisoner to refuse food and medical treatment, see _Zant v. Prevatte_, 286 S.E.2d 715 (Ga. 1982); _State v. McAfee_, 385 S.E.2d 651 (Ga. 1989). Given this past history, and the accepted principle that state constitutions may provide greater protection for individual rights than the federal constitution provides, Benham observed that the Georgia Supreme Court clearly has a tradition of affording greater protection to individual privacy than does the U.S. Supreme Court, making the _Hardwick_ decision irrelevant to the court's determination of this case. Benham declared that "it is clear that consensual sexual behavior between adults in private is covered by the principles espoused in _Pavesich_ since such behavior between adults in private is recognized as a private matter by `any person whose intellect is in a normal condition...'", quoting from the _Pavesich_ decision. "We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than consensual, private, adult sexual activity," wrote Benham, then citing recent decisions striking down sodomy laws in Montana, Tennessee, and Texas. (The Texas court of appeals decision was subsequently reversed on procedural grounds by the Texas Supreme Court.) After determining that private adult sex is covered by the right of privacy, the court had to decide whether the state's legitimate interests outweighed the individual's rights. Here, Benham observed that the state's legitimate interest is in protecting the public against offensive public conduct, and protecting individuals against unwanted activity. After producing a long list of other laws specifically enacted to achieve these goals, Benham concluded that ultimately the only role left for the sodomy law is interfering with the private consensual activities of adults, which is not a legitimate state interest. Countering the argument of lone dissenting judge George H. Carley that the state has a right to criminalize conduct deemed immoral by the majority, Benham argued that "it is not the prerogative of members of the judiciary to based decisions on their personal notions of morality," and that the fact that a particular law is enacted in pursuit of the legislature's moral judgments does not remove that law from scrutiny under the constitution. "While many believe that acts of sodomy, even those involving consenting adults, are morally reprehensible," Benham commented, "this repugnance alone does not create a compelling justification for state regulation of the activity. . . We agree with our fellow jurists [in Tennessee, Kentucky and Pennsylvania] that legislative enactments setting `social morality' are not exempt from judicial review testing their constitutional mettle." In a concurring opinion, Justice Leah Sears, a frequent champion for lesbian and gay rights on the Georgia Supreme Court in recent years, saluted the court's decision as "clearheaded and courageous." Taking on the dissent, Sears argued that "simply because something is beyond the pale of `majoritarian morality' does not place it beyond the scope of constitutional protection. To allow the moral indignation of a majority (or, even worse, a loud and/or radical minority) to justify criminalizing private consensual conduct would be a strike against freedoms paid for and preserved by our forefathers. Majority opinion should never dictate a free society's willingness to battle for the protection of its citizens' liberties. To allow such a thing would, in and of itself, be an immoral and insulting affront to our constitutional democracy." In his dissent, Justice Carley accused the majority of misinterpreting _Pavesich_ and undermining democratic government in Georgia by striking down a criminal law that dated back to English common law colonial days. Carley argued, in effect, that longstanding criminal laws are not subject to judicial review, and can only be removed by legislative repeal. He noted that the majority of sodomy laws that have been removed from the books since the 1960's were removed through legislative repeal rather than judicial invalidation, and argued that the court should have allowed the legislative process to run its course in Georgia. Carley also argued that the rationale of the court's opinion would invalidate all criminal laws that regulate private consensual conduct, including incest, adultery, and private drug use. There is a certain irony to the court's decision, since in recent years this court has ducked several opportunities to rule directly on the constitutionality of the sodomy law. In fact, just a few years ago, in _Christenson v. State_, 468 S.E.2d 188 (Ga. 1996), a plurality of the court had issued language finding the law constitutional in a case where a majority voted to reject the constitutional challenge on the ground that the conduct in question (a solicitation to engage in sodomy) took place in public. (In his decision, Chief Justice Benham cited the solicitation law in his list of statutes regulating public conduct. A challenge to the constitutionality of punishing somebody for soliciting lawful conduct may be next on the list for Georgia civil libertarians.) Even more ironically, a year ago the U.S. Supreme Court refused to review a federal appellate decision that had upheld the right of the Georgia attorney general, then Michael Bowers, to withdraw a job in his office from Robin Shahar, an openly lesbian attorney, at least in part because Bowers argued that his duties to uphold Georgia's sodomy law made it impossible for him to employ an openly-lesbian attorney who had a rabbi perform a commitment ceremony for her and her partner. _Shahar v. Bowers_, 114 F.3d 1097 (11th Cir.), cert. denied, 118 S.Ct. 693 (1997). On the other hand, some recent decisions involving gay and lesbian family law issues, including _City of Atlanta v. Moran_, 492 S.E.2d 193 (Ga., Nov. 3, 1997) (upholding domestic partner benefits for Atlanta municipal employees), had signalled some receptivity by the court to gay rights arguments, so the opinion was not a total surprise to legal observers, although the scope of the victory and the decisiveness of the vote were unexpected. Although the case involved heterosexual sodomy, the Georgia statute did not distinguish between homosexual and heterosexual acts, and several gay rights groups, including Lambda Legal Defense & Education Fund and the ACLU Lesbian and Gay Rights Project, had filed briefs urging the court to invalidate the law. _Other sodomy law developments_ The Orleans Parish Civil District Court in Louisiana heard oral arguments during the last week of October in a suit seeking invalidation of that state's sodomy law. On the final day of testimony, the state presented Richard Cohen, a psychotherapist, as an expert witness who claimed that he had "overcome" his own homosexuality and has gone on to a successful career as a therapist "curing" homosexuals. Cohen claimed that he had a 100% success rate "when patients accept the treatment." Rebutting this testimony, plaintiffs' attorney John Rawls presented Ralph Roughtan, an Emory University psychiatry professor, who testified that changes in sexual behavior should not be confused with changing underlying sexual orientation. Roughtan testified that somebody who is homosexual but engages in heterosexual sex "is trying to be something you are not." _Associated Press_, Oct. 31. Once again, the Texas sodomy law faces a constitutional challenge, but for the first time in an actual prosecution for consensual adult sodomy committed in private. John Lawrence and Tyrone Garner were happily engaged in oral sex in Lawrence's unlocked apartment in Houston on Sept. 17 when police entered the apartment after receiving a false report of an armed intruder. (The maker of the false report, who apparently had some grudge against the men, has also been prosecuted.) They were arrested and charged with a violation of the misdemeanor law that makes it a crime for two men or two women in Texas to have oral or anal sex. The maximum penalty is a $500 fine. The men pled "no contest" to the charges at an arraignment hearing on Nov. 20, represented by Mitchell Katine and David Jones, Texas cooperating attorneys for Lambda Legal Defense & Education Fund, and were each fined $125. Outside the hearing room, Lambda staff attorney Suzanne Goldberg announced that the defendants planned to contest the constitutionality of the law. _N.Y. Times_, _Houston Chronicle_, _Chicago Tribune_, Nov. 21. A recent attempt to contest the law came to grief on jurisdictional grounds in the Texas Supreme Court, the court holding that a ruling on constitutionality would have to come from the Court of Criminal Appeals in an actual prosecution. _State v. Morales_, 869 S.W.2d 941 (Tex. 1994). In Virginia, Roanoke police cracking down on sexual solicitation in public parks announced that they would seek felony indictments against 18 men who were arrested for soliciting sodomy from undercover cops. Unlawful sexual solicitation is generally a misdemeanor, unless the underlying act being solicited is a serious felony, which sodomy is in Virginia. The announcement brought renewed calls for reform of the Virginia sodomy law. _Associated Press_, Nov. 1. A.S.L. LESBIAN/GAY LEGAL NEWS Lesbian Volleyball Coach Wins Reinstatement and Removal of Gag Order In a major victory for lesbian and gay public school teachers, Wendy Weaver won her motion for summary judgment in a discrimination suit against the Nebo School District, ordering her reinstatement as a high school volleyball coach and striking down an attempt by the district to impose a ban on her public discussion of her sexual orientation. _Weaver v. Nebo School District_, No. 2:97-CV-819J (U.S.Dist.Ct., C.D. Utah, Nov. 25, 1998). The decision by District Judge Bruce Jenkins, which was not officially published as we went to press, is available on the ACLU of Utah's website. Weaver, who teaches psychology and physical education at Spanish Fork High School and had an outstanding record as a girls' volleyball coach (including four state championships), had taken a few years off from coaching in order to pursue an advanced degree. Her teaching position is tenured, but the coaching position was a year-to-year appointment. Weaver had an understanding with Robert Wadley, the school principal, that she would be returning as coach during the 1997-98 school year, having completed her graduate school work. However, her ex-husband, also a school district staff member, began spreading stories that she was a lesbian, which led one of the team members to phone and ask her outright. When Weaver responded "Yes," the team member said that she would not feel comfortable being coached by Weaver and would not compete the following year. The student's parents then contacted school officials, who evidently were already convulsed by the news that their star volleyball coach was a lesbian, as internal meetings to discuss how to deal with this development were already underway. Ultimately, Wadley notified Weaver that she would not be reappointed to coach the girls volleyball team, and the school district sent her two letters, warning her not to discuss her sexuality publicly on pain of losing her job. Weaver filed suit in federal district court, claiming that the restrictions on her speech and the withdrawal of her coaching position violated her constitutional rights. As the parties had no dispute about the underlying facts, they agreed that the court would dispose of the matter on summary judgment, and this opinion issued just a few weeks after cross-motions were argued. Judge Jenkins found for Weaver on all counts. First, he determined that the school's attempt to censor Weaver's speech about her sexuality outside the classroom clearly violated her 1st Amendment rights. (Interestingly, Weaver's only speech on the subject at the time the district imposed the ban consisted of one word: "Yes" in response a volleyball team member's telephone inquiry. The real problem was her ex-husband's speech, and the district also issued an order to him banning any public discussion of his ex-wife's sexuality. Presumably this order is also unconstitutional, but he never sued. . .) Under free speech precedents concerning public employees, content- based prohibitions on speech about matters of public concern may only be restricted if necessary to prevent disruption of the public agency's functions. The district had argued that Weaver's sexuality was not a matter of public concern, harking back to the 6th Circuit's decision in _Rowland v. Mad River School District_, 730 F.2d 444 (6th Cir. 1984), cert. denied, 470 U.S. 1009, reh. denied, 471 U.S. 1062 (1985), but Judge Jenkins preferred to cite Justice William J. Brennan's dissent from the Supreme Court's refusal to review that decision, noting that by the time the district issued its gag order to Weaver, her sexuality had become a matter of intense public concern due to the stories spread by her ex-husband, the volleyball team member's phone call, intense public discussion, and the numerous internal meetings being held within the district administration. Further, Jenkins found that the district had presented no evidence of any disruption of Weaver's classes. The only real disruption concerned phone calls by parents and the refusal to play on the team if Weaver coached by one student, which the court did not consider germane to the 1st Amendment controversy. In addition, Jenkins found that the district violated Weaver's right to equal protection of the laws under the 14th Amendment by refusing to reappoint her as volleyball coach. Citing _Romer v. Evans_, 517 U.S. 620 (1996) for the proposition that in cases of anti-gay discrimination by a government body, the court would "insist on knowing the relation between the classification adopted and the objective to be obtained," Jenkins found that "the record before the court contains no job-related justification for not assigning Ms. Weaver as volleyball coach. Nor have the defendants demonstrated how Ms. Weaver's sexual orientation bears any rational relationship to her competency as teacher or coach, or her job performance as coach -- a position she has held for many years with distinction. . . Absent some rational relationship to job performance, a decision not to assign Ms. Weaver as coach because of her sexual orientation runs afoul of the Fourteenth Amendment's equal protection guarantee." As further icing on the cake, Jenkins accepted Weaver's arguments that the failure to appoint her was retaliatory based on her exercise of First Amendment rights, and that the attempt to impose a gag order on her violated her right to equal protection in regard to a fundamental right of free speech. Jenkins granted Weaver's motion for summary judgment, ordering the school district to rescind the gag order letters, offer to appoint Weaver to coach volleyball for the 1999-2000 season, and pay damages in the sum of $1,500 (which is the amount of stipend she would have received had she coached volleyball for the 1997-98 season). No word yet on an appeal by the school district, which seems likely. Weaver is represented by ACLU National Lesbian and Gay Rights Project attorneys Matt Coles (Project Director) and Jennifer Middletown, ACLU of Utah attorney Stephen C. Clark, and Salt Lake City attorney David B. Watkiss. A.S.L. 7th Circuit Denies En Banc Review in Student Activity Fee Case The Seventh Circuit Court of Appeals voted 5-3 to deny a rehearing en banc in _Southworth v. Grebe_, 157 F.3d 1124 (7th Cir. 1998) on Oct. 27. In this case, plaintiff students (self-identified Christian conservatives) claimed that their 1st Amendment rights were violated when the University of Wisconsin-Madison regents used their mandatory student activity fees to fund a content-neutral forum where groups engaged in political and ideological activities, speech and advocacy with which the students disagreed, including student organizations concerned with gay rights and AIDS issues. Students felt that this use of their fees amounted to compelled speech. Judge Ilana Diamond Rovner and Judge Diane P. Wood each wrote a scathing dissent from the denial of en banc review with which Judge Terrence T. Evans joined. In both opinions, the judges determined that the panel opinion extended the prohibition against compelled speech to a new level, beyond what the Supreme Court had recognized in _Abood v. Detroit Bd. Of Educ._, 431 U.S. 209 (1977) and _Keller v. State Bar of California_, 496 U.S. 1 (1990). In these two cases, the associations, which directly represented their constituencies in certain matters, used their mandatory member dues to engage in political and ideological activities with the objecting members did not agree. The Supreme Court held that this use amounted to compelled speech in violation of 1st Amendment free speech and association rights because the activities could be directly attributable to the dissenting members. The Court also held that the associations could only use member dues to further activities which were germane to the representational purpose of the association. The dissents criticized the original panel opinion, 151 F.3d 717 (Feb. 26, 1998), which stated that the use of mandatory student activity fees to create a content-neutral forum was not germane to the educational purpose of a university and that the university's interest in promoting robust debate and free exchange of ideas on the campus did not outweigh the free speech and association rights of the students. The dissents said that these findings were contrary to Supreme Court precedents which gave great weight to robust debate and free expression in a university setting, such as _Healy v. James_, 408 U.S. 169 (1972) and _Keyishian v. Bd. of Regents_, 385 U.S. 589 (1967). They also stated that this ruling impeded the ability of a university to distribute student activity fees in a content neutral manner. Finally, the dissents opined that the speech could not be directly attributed to the objecting students because the funding scheme was used to create a content- neutral public forum rather than used to fund groups which engaged in political and ideological activities, speech and advocacy. Interestingly, the plaintiff students conceded that the funding arrangement was designed to create such a public forum for free expression. The _Southworth_ case creates a conflict with a Second Circuit Court of Appeals decision, _Carroll v. Blinken_, 957 F.2d 991 (2d Cir. 1992). In _Carroll_, the court determined that university student fee funding of the N.Y. Public Interest Research Group did not amount to compelled speech. The court also held that the group could not include all of the students who paid activity fees on their membership roles as "payment of mandatory student activity fees is not the equivalent of an endorsement of group activities." That students can effectively use the courts to silence others when they do not agree is the most disturbing quality of the 7th Circuit panel opinion. Giving students carte blanche to remove funding from a content-neutral forum will decrease the viability for presentation of a wide range of ideas. When ideas are repressed or not given the chance to be presented, a chilling effect spreads over the university campus and students will not have as great a learning experience. The University has indicated its intention to file a petition for certiorari with the U.S. Supreme Court. _Leo Wong_ 7th Circuit Holds Court Must Explain Downward Departure from Guidelines in Sentencing Gay Pedophile The U.S. Court of Appeals for the 7th Circuit remanded for resentencing the case of a gay man who pled guilty to distributing child pornography, due to the district court's downward departure from the United States Sentencing Guidelines Manual. _U.S. v. Wilke_, 156 F.3d 749 (Sept. 16). In its appeal, the government contended that the district court erred by relying on the nature of Wilke's offense, his sexual orientation, and his demeanor in deciding that Wilke was vulnerable to abuse in prison and that his extraordinary charitable acts were not "motivated by a desire to entice children into illicit sexual activity." The government argued that the district court made its vulnerability determination "by considering that Wilke is homosexual without evidence before it establishing that homosexuals as a group are vulnerable to abuse in prison and by relying on subjective statements about Wilke's demeanor even though the court described him as being of average height and weight." Wilke, a 5'11", 160-pound, 46-year-old, described by the district judge as having a "passive, meek demeanor," pled guilty to exchanging child pornography with a New Jersey man via mail and computer. Wilke put on as witness a former federal inmate who testified that, given Wilke's physical characteristics ("he looked scared and not like someone who could fight") and his sexual crime related to a minor, the Bureau of Prisons would not be able to protect him from being "abused, raped, and turned into a sex slave" while incarcerated. While the court held that on remand the district court could consider Wilke's sexual orientation and demeanor, it cautioned that the court "must provide a sufficient explanation of the reasons, and the nexus of the reasons to vulnerability to abuse, thereby enabling appropriate appellate review." In a partial dissent, in which he agreed with the majority view that it is illogical that the crime on which the Sentencing Commission based the recommended range may be a factor in justifying a departure from that range, Judge Cudahy cited authority that "subjective findings on demeanor [are] clearly within the purview of the trial judge and [the district judge] has made more than adequate findings with respect to Wilke's demeanor." Judge Cudahy also took issue with the majority's reaction to the 28 letters attesting to Wilke's community service submitted to the court, stating "the majority's observations are simply unacceptable.. . The majority seems to be saying that in organizing and participating in numerous community events involving young people, Wilke was motivated by a desire to exploit those occasions for illicit sexual purposes. This, of course, is the purest and most objectionable speculation, there being no showing that Wilke's community contributions had the slightest relation to sexual misdeeds. In fact, the spontaneous outpouring of praise for his social contributions is strong evidence that members of the community who knew him best did not perceive any questionable motivations." _Mark Major_ Georgia Supreme Court Permits Evidence of Anti-Gay M.O. By Murdering Car Thief The Georgia Supreme Court rejected a claim that a trial court erred by allowing a prosecutor to introduce evidence that the defendant's modus operandus was to befriend gay men preparatory to assaulting them and stealing their cars. _Smith v. State_, 1998 WL 806160 (Oct. 26). The defendant received a life sentence for felony murder. According to the opinion, the state's version of the facts was that Mark Smith and his co-defendant, Carlos Rutledge, accepted a ride from the victim, Keith Stapleton, who drove them to his hotel room. When Stapleton allegedly made sexual advances to Rutledge, Smith became enraged, hit and choked Stapleton, and demanded his car keys. Smith and Rutledge left in the rental car, and Stapleton was found dead in his hotel room the next morning. At trial, the court let the prosecution introduce evidence that in a prior case Smith had used an alias and solicited a ride from a victim late at night near a bar, and after some discussion of a "homosexual encounter," had violently robbed the victim, having told a similar story to police officers upon his arrest. Rejecting the argument that the trial court erred in admitting this evidence, the court found that "the two attacks were sufficiently similar so that proof of the prior attack was relevant to show identity, bent of mind, and intent and, thus, tended to establish Smith's commission of the attack for which he was convicted." The court also ruled that the trial court had correctly excluded evidence of Stapleton's HIV status, which Smith sought to introduce in support of his theory that Stapleton had been killed by another sexual partner out of some sort of revenge motive. The court noted that "Smith's theory was mere speculation for which he never laid a foundation." A.S.L. New Jersey Court Grant Lesbian Co-Parent Joint Custody of Child In a groundbreaking victory for non-biological lesbian and gay parents in New Jersey, Judge Vincent J. Grasso of the Ocean County Superior Court granted joint legal custody to a non-biological lesbian parent, REM, after she and the child's biological mother ended their seven-year relationship. _REM v. SLV_, Docket No. FD-15-748-98N (Nov. 2, 1998). In a 21-page letter memorandum addressed to counsel for both parties, the court ruled that REM had legal standing to petition the court for custody based on the equitable doctrine of _parens patrie_. The court also held that based on the facts of the case and the findings of the court-appointed guardian ad litem and court-appointed psychologist, joint custody was in the best interest of the child. SLV and REM first broached the topic of conceiving and raising a child together 4-5 years into their relationship, and 2-3 years after they had moved in together in Lakewood, NJ. The couple researched various parenting options and decided upon donor insemination. They agreed that SLJ would be inseminated with the sperm of a donor selected by the couple, since REM had a medical history of asthma, cervical cancer and a hysterectomy. The couple also agreed that since REM had physical restrictions from a work-related injury, she would stay at home and be the primary caretaker of the child. According to the couple's plan, SLV would return to work as a respiratory therapist soon after the child's birth. The donor insemination procedure was covered by SLV's insurance; REM agreed to pay for the sperm donor costs. SLV became pregnant in 1995. REM accompanied SLV to doctor visits and Lamaze birth classes. SLV executed a power of attorney designating REM as her attorney-in-fact, and a will designating REM as the guardian of any minor children SLV might have. SLV gave birth to a boy on March 2, 1996. The couple named him AJMV, ensuring that he shared the last names of both REM and SLV. Both parties were listed as AJ's parents on his birth certificate and on his birth announcement. After 8 weeks, SLV returned to work and REM remained at home with AJ as the primary caretaker during SLV's working hours. SLV assumed childcare responsibilities when she returned from work. After AJ's birth, the parities executed an agreement entitled "Agreement between Mother and her Partner" which memorialized the mutual decision of the parties to conceive, bear and raise the child. The document acknowledged REM as a _de facto_ parent. Although SLV disputed the authenticity of her signature on the agreement, the court nonetheless concluded that based on the evidence, it accurately reflected the intent of the parties at the time of AJ's birth. Within one month of AJ's birth, the parties filed a petition for REM to formally adopt AJ with SLV's consent (a second-parent adoption). The court appointed an independent agency to investigate the proposed adoption. However, while the petition was pending, the couple decided that the home study and investigation might not be favorable since they shared a single-family house with their landlord, an elderly gentleman. SLV and REM therefore withdrew the petition with the understanding that they would refile it once the two of them constituted a household alone. Problems developed in the parties' relationship, leading to a breakup just before Thanksgiving in 1996. SLV accused REM of resenting the fact that SLV was AJ's biological mother. According to SLV, REM admitted not loving SLV anymore. REM claimed at trial that SLV threatened to leave with AJ and to withhold her consent to REM's petition for adoption unless REM met certain conditions including paying for certain household bills. (REM had previously used part of her workers compensation award to pay off approximately $25,000 of SLV's debts and $26,000 of joint debts). Problems continued when in December of 1997 the parties filed mutual domestic violence complaints. After the court issued restraint orders, SLV moved out of the house. The parties have been living apart since that time. At first, REM was granted supervised visitation of AJ, which she exercised regularly. The court later granted REM unsupervised visits with AJ. SLV and AJ now live with SLV's parents, lesbian partners who have been together for almost 25 years. REM's mother and stepfather live an hour away from the parties, and testified how they consider AJ an integral part of their family. The guardian ad litem for AJ testified that both SLV and REM presented as good parents and caretakers with strong emotional bonds to AJ. According to the court, the guardian ad litem recommended that "it was in AJMV's best interest to continue the psychological bond and relationship with REM with a substantial time share equal to that of the biological mother." The guardian deferred the legal question as to whether a non-biological parent was entitled to custodial rights as a parent. Judge Grasso also appointed a licensed psychologist to conduct a psychological evaluation and bonding evaluation to determine AJ's best interests. The psychologist testified that both parties were fit and appropriate parental figures with the best interest of AJ at heart, and noted little difference in the bonding between AJ and his relationships with REM and SLV. According to the psychologist, AJ would experience trauma if his bond with REM were severed permanently. Therefore, the psychologist recommended that REM have "a substantial time share which would put SLV and REM on an equal footing with the child." The court began its legal inquiry by addressing the threshold question of whether REM had standing to assert a legal claim for custody and/or visitation. Since REM and SLV were not legally married, REM did not have automatic standing under New Jersey statutes. Without automatic standing, a petitioner generally must demonstrate that the natural parent is either unfit or has abandoned the child. According to the court, however, "a line of cases has evolved in New Jersey which address and recognize the equitable powers of courts to consider custody and/or visitation to a third party under its parens patrie power." For example, Grasso noted New Jersey decisions in which foster parents were granted custody without the requisite finding of parental unfitness or abandonment. New Jersey courts likewise have exercised their equitable powers to grant visitation rights to grandparents before the state legislature enacted a visitation statute. The court cited and relied upon one such grandparent visitation case, _Zack v. Fiebert_, 235 N.J. Super. 424 (App. Div 1989), in which the Appellate Division held that "where, as a preliminary matter, the third party is able to show that he or she stands in the shoes of a parent to the child and thus in parity with the natural parent, he or she should be accorded the status of a natural parent in determining the standard to be to be applied to the quest for custody." Grasso concluded that _Zack_ applied to the present case, regardless of REM and SLV's sexual orientation: "There is no reason here to treat REM's claim for custody and/or visitation any differently due to the fact that the dispute is between two persons of the same gender, or more specifically, between two former partners of a lesbian relationship." In support of this conclusion, the court cited New Jersey's 1993 and 1995 favorable second-parent adoption court rulings. The court also noted that the commentary to New Jersey Rule 5:1-2, which vests the Family Court with jurisdiction over civil actions "arising out of a family or family type relationships," explicitly notes the possibility that it was worded broadly so as to include "unmarried cohabiting adults whether or not of the same sex and children who are part of their households." Finally, the court looked to the decisions of other jurisdictions for guidance on the issue of standing, noting a split among jurisdictions. Courts in New York and California have taken more formal/traditional approaches to defining family relationships, while those in Wisconsin and Pennsylvania have adopted more functional approaches. Judge Grasso aligned New Jersey with the latter jurisdictions. Based on the facts of the case, the court concluded: "The family-type relationship between SLV and REM, although non-traditional, was formed and developed several years prior to the child's birth. The birth of the child, AJMV, was not coincidental to the parties' relationship, but rather a planned parenting arrangement between SLV and REM. There can be little question from the evidence in this case that both SLV and REM intended this child, AJMV, to be a product of their lesbian union and relationship and not merely the offspring of SLV as a single parent. The court is satisfied that REM has been able to show that she stands in the shoes of a parent to the child and should be accorded the status of a parent in parity with SLV in determining the standard applied in her quest for custody and visitation." Based on the recommendations of the court-appointed psychologist and the guardian ad litem, and all of the testimony adduced at trial, the court concluded that joint and shared custody was in AJ's best interest. The court ordered that primary residential custody continue with SLV. The court also imposed a duty of support on both SLV and REM. Judge Grasso's decision is particularly significant and exciting because it is the first case in New Jersey, if not in the country, where joint custody, as opposed to mere visitation, has been granted to a non-biological lesbian parent. The court's decision was thorough and well reasoned. As in almost all custody decisions, which are based on "the best interests of the child," the court's ultimate holding was highly fact specific. However, by granting standing to non-biological parents to petition for custody and visitation, the court has further legitimized a functional definition of "family" which ultimately favors lesbian and gay (ex)-couples and their children. Counsel for the parties were Bettina E. Munson of Freehold, N.J., and Paul J. Urbania of Red Bank, N.J. _Ian Chesir-Teran_ [Although an appeal of this decision appears unlikely, the court noting that both parties expressed willingness to comply with whatever decision the court might render, it differs enough from some other New Jersey rulings to suggest that this issue will eventually have to go to an appellate level. - Editor] Kansas Supreme Court Finds Phelps Anti-Gay Threats Non-Felonious On Nov. 6, the Supreme Court of Kansas upheld a district court judge's decision to dismiss two felony counts each against the Rev. Fred W. Phelps Sr. and his son, Jonathan B. Phelps, noted anti-gay protesters. However, the court held that the district court erred in dismissing a disorderly conduct charge against the senior Phelps. _State v. Phelps_, 1998 WL 771637. Phelps, a Baptist minister and leading anti-gay demagogue, was charged with disorderly conduct after calling Topeka, Kansas, lawyer Jerry Palmer a "sodomite" and a "fat ugly sodomite" in March 1992 as Palmer walked to a fundraising luncheon hosted by Hillary Clinton. The intimidation charges dated from June 1993, when Jonathan Phelps picketed St. David's Episcopal Church bearing the messages, "Pig Palmer FUS (fat ugly sodomite)," "God Hates Fags" and "Gays are worthy of death (Romans 1:32)." The picketing was in response to Palmer's intent to testify against Phelps in the disorderly conduct case. In affirming the dismissal of the two felony counts, the court applied a reasonable person test. Essentially the court questioned whether a reasonable person confronted by the signs carried by Phelps would take such language as a threat that the person or persons displaying the sign would inflict or cause to be inflicted physical or other harm to the person named in the signs. The court defined threat as a "communicated intent to inflict physical or other harm on any person or on property." Palmer argued that the signs constituted a physical threat of harm against him and, when read together, basically said "Palmer must die." The court disagreed, concluding that prosecutors did not present sufficient evidence to establish probable cause that Fred Phelps or Jonathan Phelps attempted to prevent or dissuade Palmer from testifying in the misdemeanor disorderly conduct prosecution. News reports from Kansas indicate that upon remand the disorderly conduct charges, as to which the trial court was reversed on jurisdictional grounds, were dropped. _Todd V. Lamb_ Michigan Court Upholds Conviction For Man Having Sex With Mentally Incapable Man On Sept. 29, a Michigan appeals court released a decision holding that the ability of a mentally incapable person to appraise the nature of his or her sexual conduct is not limited to the mechanics thereof, but also to the morality of the conduct as well. _People vs. Breck_, 584 N.W.2d 602 (1998). The court walked a tightrope be merging morality, law and sexuality in a case of homosexual activity with a mentally incapable person. Defendant Larry Joe Breck was charged with criminal sexual conduct for having sex with a "mentally incapable" man. The trial court held that the victim was incapable of consenting to acts of sexual intercourse with Breck because the victim was "mentally incapable" as defined under Michigan law. Breck argued on appeal that a plain reading of the statute indicates that the statute only prohibits sexual relations with persons who are unable to understand the "physical nature of the act because of a mental disease or defect." Breck contends that his victim did understand the nature of the act, and whether the victim could comprehend the moral consequences of the sexual acts was irrelevant, as long as the victim knew that the acts were occurring and was doing nothing to stop them. Writing for the tribunal, Judge Kelly relied exclusively on _People v. Easley_, 42 N.Y.2d 50 (1977), a New York case of nearly identical facts and law. In that case the court held that the understanding of the sexual act encompasses more than a knowledge of its physiological nature, but also an appreciation of how it will be "regarded in the framework of the societal environment and taboos to which a person will be exposed." In other words, assessing the moral quality of the act also plays a role in one's ability to "appraise," i.e., appraising the nature of stigma, ostracism or other non-criminal sanctions of society. The court found the _Easley_ reasoning very persuasive and therefore adopted it, holding that the language of the Michigan statute is meant to encompass not only an understanding of the physical act, but also an appreciation of nonphysical factors, including attendant moral qualities of the act. To rule otherwise "would strip the statute of the protection that the Legislature intended for those. . . who know what is happening to them but are incapable of protesting or protecting themselves because of a severely diminished intellectual capacity" and would limit these protections to those "who are so divorced from reality that they are not even aware of what is happening to them physically." Based on the victim's psychologist's testimony, the victim was found unable to appraise the nature of the sexual activity as either morally right or wrong, nor did he understand that others could not engage in sex with him without his consent. _K. Jacob Ruppert_ Federal Court Allows Same-Sex Harassment Claim to Proceed Against Public Employer Under 42 U.S.C. Sec. 1983. Police officers in Shawnee, Kansas, who claimed they were subjected to unlawful homosexual advances from a supervisor can maintain an action under 42 U.S.C. Sec. 1983, even though their suit is untimely under Title VII of the Civil Rights Act of 1964, ruled District Judge O'Connor in _Carney v. City of Shawnee_, 1998 WL 758842 (D.Kans., Oct. 9). The officers filed sex discrimination charges with the EEOC, which issued a right to sue letter to them. They subsequently retained counsel, but never gave him the right to sue letter, and the suit he ultimately filed on their behalf was brought more than 90 days after the right to sue letter was issued. However, their complaint also alleged a violation of their constitutional equal protection rights, claiming jurisdiction under sec. 1983. Finding that the Title VII sex discrimination claim was time-barred, Judge O'Connor nonetheless found that a sexual harassment claim against a public employer may also be grounded in the equal protection clause of the 14th Amendment, and that the action would be timely under sec. 1983, which gives the federal court jurisdiction to hear constitutional claims. A.S.L. Federal Court Rejects Religious Employment Discrimination Claim Against Baptist Medical College by Minister of Gay-Friendly Church A "Christian" medical school was entitled to the religious institution exemption under Title VII in a discrimination suit brought by an employee who was fired after becoming a minister in a church with a special outreach to gay people. _Hall v. Baptist Memorial Health Care Corporation_, 1998 WL 819763 (U.S.Dist.Ct., W.D.Tenn., Nov. 23). The decision by District Judge Donald additionally found that even if the school was not entitled to the exemption, the plaintiff had failed to state a prima facie case of religious discrimination. Glynda Hall was hired by the Baptist medical college as a student services specialist in August 1995. Her job involved working with students and the administration in organizing and planning activities of various campus student organizations. At the time she was hired, Hall was a regular attendant at Holy Trinity Community Church, a non-denominational church with a large lesbian and gay membership. This church affirms the morality of lesbian and gay relationships and targets its membership outreach towards the gay community. In the spring of 1996, Hall began the process of becoming a minister at Holy Trinity. That summer her supervisor inquired about her church membership, and when Hall told him that she attended services at Holy Trinity, a church he believed to be an advocate for gay rights, he approached the college's president, Dr. Rose Temple, who told him that the college "would not make an issue" of Hall's choice of denomination to worship. Hall was ordained as a minister at Holy Trinity in September 1996, but did not invite her supervisor to the ordination ceremony "because she feared she would be fired if [he] discovered she was a lesbian and that Holy Trinity welcomed gay and lesbian members." However, she did inform him that she was a lesbian shortly thereafter, and gave him a copy of the church's newspaper. The supervisor then went to President Temple, who decided that the college could no longer employ Hall. Temple took the position that it was inconsistent with the college's Southern Baptist orientation, condemnatory of homosexuality, to employ a minister of a pro-gay church in the student services position. "Temple believed that a serious conflict existed between [Hall's] employment at the College in a position of influence and her ordination as a minister in a church which espoused views contrary to those held by the Southern Baptist Convention." Hall was terminated when she refused to resign. She then charged the college with discrimination on the basis of religion in violation of Title VII of the Civil Rights Act. The college argued that it was entitled to an exemption from compliance with Title VII under 42 U.S.C. sec. 2000e-1(a), which exempts a religious. . . educational institution. . . with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such. . . educational institution. . . of its activities." Pointing out that the college was a medical school which included only one three-hour religious course in its curriculum, Hall argued that it was not a religious educational institution. After reviewing the history and activities of the college, Judge Donald rejected this argument. "The purposes and programs of the College are permeated with a conviction to adhere to Christian principles while providing education in Nursing and Health Sciences," wrote Donald. "Defendant's college has a clear relationship with the Baptist church. In light of the overwhelming evidence of the College's religious activities and nature, the mere fact that the College only requires one three-hour course in religion is not sufficient to deprive it of its appropriate classification as a religious educational institution." However, realizing that a higher court might disagree, Donald then proceeded to evaluate whether Hall stated a claim under Title VII in case the college is found not to qualify for the exemption. In this case, Donald found that there was no factual dispute that Hall was discharged for becoming a minister in a pro-gay church. (Because Title VII does not forbid discrimination on the basis of sexual orientation, Hall had to couch her claim as a religious discrimination claim.) Hall argued that she was discharged specifically for pursuing her religious vocation to become a minister at Holy Trinity. The college argued that it was inconsistent with its mission to employ in a student services position a person who had assumed a leadership position in an organization that espoused views sharply contrary to the religious views that permeated the college. Hall argued that this was a pretext for religious discrimination. Judge Donald rejected the pretext argument. "Even if the court assumes, arguendo, that Plaintiff has established a prima facie case of religious discrimination, her claim still must fail for failure to prove that Defendant's articulated reason for terminating her was pretextual. Defendant asserts that it terminated Plaintiff because she had assumed a leadership role in an organization espousing beliefs diametrically opposed to those held by the College itself. In her deposition, Temple stated that Plaintiff's ordination as a minister at Holy Trinity was the catalyst for her termination. Temple expressed her belief that Plaintiff's position as a minister for Holy Trinity was a position of leadership, irrespective of whether she had done any preaching or public speaking at that time. Temple perceived a conflict between Hall's leadership position in an organization which publicly embraced and supported homosexuals and her employment at a College founded by and affiliated with those who consider homosexuality to be a sin and a perversion in the eyes of God. In short, the Defendant has articulated a legitimate, nondiscriminatory reason for Plaintiff's termination and offered credible evidence to support the veracity of that reason." Donald concluded that Hall was not discharged because of the religious nature of her activities, but rather because of the pro- gay nature of her activities. "The fact that the organization which appointed Plaintiff to a leadership position happened to be religious does not transform an attempt to maintain an atmosphere consistent with those views into an act of prohibited religious discrimination. Plaintiff even conceded that she believed Defendant would have fired her if she had been elected president of a local gay and lesbian coalition or had made a televised speech opposing the Southern Baptist Convention on gay and lesbian issues," wrote Donald. "Although such a concession does not prove that the Defendant did not discriminate against Plaintiff on the basis of religion, it does provide further support for Defendant's contention that it fired Plaintiff, not because of her religious beliefs or practices, but because of her leadership position in an organization which publicly advocated gay and lesbian issues." Donald rejected Hall's attempts to rebut the college's case with examples of other colleagues who assertedly engaged in conduct antithetical to Southern Baptist beliefs but who were not discharged, and granted summary judgment to the defendant. A.S.L. Pre-Op Transsexual Wins Right To Seek Medicaid Funding For Sex Reassignment Surgery In a victory for the transgender community, a pre-op transsexual won the right to proceed with a 42 U.S.C. sec. 1983 suit against the State of Iowa for denying Medicaid benefits for sex reassignment surgery. _Smith v. Palmer_, 1998 WL 758372 (U.S.Dist.Ct., N.D. Iowa, Oct. 13). District Judge Bennett held that a material question of fact exists as to whether sex reassignment surgery is a medically necessary treatment for gender dysphoria and whether the Iowa Department of Human Services' reliance on a report prompting it to specifically exclude such surgery from funding was a reasonable exercise in discretion. In 1994, the Iowa administrative rules governing the Iowa Medicaid program were changed to specifically exclude sex reassignment surgery. In May of 1997, plaintiff John Smith sued the State of Iowa, claiming it violated the federal Medicaid statute by denying him coverage for sex reassignment surgery and that this denial was arbitrary and violated his right to due process under the 14th Amendment. Iowa filed a motion for summary judgement on the merits. In a methodic decision oddly beginning with a Yogi Berra quote ("It's deja vu all over again"), Judge Bennett tests whether the statute in question gives rise to a federal right under sec. 1983. Smith claimed that the language of the implementing regulation of the Medicare statute standing alone is sufficient to create such a right. The court disagreed and began an analysis of the Medicaid statute with an understanding that if it created a federal right, then its attendant implementing regulations (like the one under fire here) would as well. The court found that a federal right does exist in the enabling statute and, flowing from that, in the attendant regulation holding that under the test, Smith was an intended beneficiary, that the statute was amenable to judicial enforcement and that Congress imposed a binding obligation on the states participating in the Medicare program. Now turning to the merits of the case, the court examined whether there is a genuine question of fact as to whether sex reassignment surgery is a medically necessary treatment for "gender dysphoria." In the state's motion, Iowa contended that it is not required under Medicaid to provide Smith all possible medically necessary treatments currently available, but may place appropriate limits on the type of treatments offered. Testimony of Smith's doctor persuaded the court to find that such a question of fact exists, stating that those diagnosed with gender dysphoria, such as Smith, improve with sex reassignment surgery and not psychotherapy and that sex reassignment surgery is a medically necessary treatment for such a condition. Next, the court addressed Smith's due process claim that the denial was arbitrary and thus violative of the 14th Amendment. It is uncontested that in 1980 an identical case was brought against the State of Iowa for denying Medicaid funding for sex reassignment surgery. _Pinneke v. Preisser_, 623 F.2d 546 (8th Cir. 1980), hence the Yogi Berra quip. There the court found the state's refusal to fund was violative of its Medicaid obligations. Following this decision, the Iowa Department of Human Services added a specific exclusion of sex reassignment surgery to the Iowa Administrative Rules. After its own literature review and public comment, it excluded the procedure from funding; it had only received one formal comment, by Smith's own attorney, which opposed the proposed rule. Smith successfully persuaded the court that an issue of fact existed in that this literature review was poorly researched and excluded the opinions of doctors (like Smith's) who treat gender dysphoria, thereby delivering the final blow to the state's motion for summary judgement. In a surprising and supportive move by the court, plaintiff John Smith, still biologically a woman, was referred to in the masculine and by his pseudonym throughout this opinion. _K. Jacob Ruppert_ Military Appeals Court Upholds Discharge for Sham Marriage The U.S. Navy-Marine Corps Court of Criminal Appeals has upheld the court martial conviction and discharge of Allen B. Phillips, a cryptologic technician in the Navy, on charges that Phillips engaged in a sham marriage with a lesbian in order to be able to live off-base with his gay male lover. _Phillips v. U.S._, 1998 WL 832060 (Nov. 20). Here's a different version of don't ask, don't tell. According to military prosecutors, Allen Phillips was conducting a gay relationship and desired to be able to move off the military base, where he was required to live as a single man, in order to live with his lover. He contracted a marriage with a lesbian in order to qualify under military rules to live off-base. When military investigators discovered that he was living with another man and not with his wife (who was herself living with a lesbian partner), they charged Phillips with conspiracy, making false official statements, and larceny. (Apparently, having claimed that he was married, Phillips not only got to live off base but also received a housing allowance from the Navy to pay for his off-base digs.) Phillips denied that his marriage was a sham or that he was trying to defraud the military, but the appeals court did not find much basis for his disclaimers, particularly rejecting his attempts to discredit the court martial's admission of testimony about Phillips' homosexual activities both before and after contracting his marriage. (Phillips argued that he could be a bisexual man who had contracted a valid heterosexual marriage while carrying on a homosexual relationship, but a military appeals court wasn't about to buy such a story.) The sentence affirmed by the appeals court included a bad-conduct discharge, confinement for 120 days, and reduction to the lowest enlisted pay grade. And thus the military kicks out yet another highly skilled service member in whom it undoubtedly had invested a small fortune in training. (Recall the anecdote about how the military leaders were horrified during the run-up to the Gulf War to discover that they had a severe shortage of personnel who could deal with our Gulf allies in their own languages because the ranks of language specialists had been sharply reduced in peacetime by the forced discharges of large numbers of gay men.) A.S.L. Military Appeals Court Upholds Discharge of Captain for "Sodomy" The U.S. Navy-Marine Corps Court of Criminal Appeals has upheld the discharge of Captain Donald R. Dinkel for having oral sex with a corporal in his bedroom. _U.S. v. Dinkel_, 1998 WL 764070 (Sept. 15) (not officially published). Captain Dinkel apparently misinterpreted various "signals" and "innuendos" he believed to be coming to him from Corporal D., so he invited the young man over to his house for dinner, drinks, and to spend the night. After the men had retired, Dinkel went into the room where Corporal D. was sleeping, removed the sheet, fondled Corporal D. through his shorts, pulled down the shorts and commenced to give Corporal D. a "blow job." Corporal D. awoke indignant and turned in Captain Dinkel, who was subsequently convicted of fraternization, sodomy and indecent assault. On appeal, the court vacated the indecent assault conviction, finding that the court martial had improperly led Dinkel through a line of questioning to shake his earlier testimony that he thought Corporal D. wanted him to initiate sex, but nonetheless affirmed the other convictions and the sentence imposed by the court martial: dismissal, confinement for 24 months, and forfeiture of all pay and allowances. A.S.L. Ohio Appeals Court Finds No Privacy Rights for Transsexual Prison Inmate An Ohio Court of Appeals upheld the dismissal of a preoperative transsexual inmate's pro se civil rights complaint. _Susan Marie Pollock aka Mark Lee Pollock v. Anthony Brigano_, 1998 WL 778352 (Ohio App., 12th Dist., Nov. 9). The court rejected Pollock's claim of being a transsexual because of a lack of medical documentation. On Dec. 16, 1993, Pollock filed a complaint charging civil rights violations at the Warren Correctional Institution. On Nov. 8, 1995, Pollock filed a supplemental complaint alleging breach of privacy in the prison setting. On Feb. 7, 1996, a trial court dismissed the privacy claims. Pollock's appeal of the dismissal was unsuccessful because the court of appeals found the appeal premature. On Nov. 22, 1996, the defendant-appellees moved for summary judgment on the remaining claims, arguing inter alia that 22 of 24 declarations made by Pollock in response to defense arguments were submitted without notarization. In Nov. 1997, the trial court granted summary judgment. Pollock then appealed, alleging that the trial court erred by granting summary judgment on the 22 declarations, by not giving a warning that only notarized allegations would be admissible, and by dismissing the privacy claims. The Court of Appeals rejected the first two claims because there was no record that Pollock had requested prison officials to notarize the documents or that such a request was refused and that there is no obligation to inform an appellant of the rules of summary judgement. Writing for the Court of Appeals, Judge Koehler found that Pollock could not be recognized as a transsexual because no evidence was provided from medical authorities supporting the assertion. The court ruled that Pollock "is unqualified to reach a medical and/or psychological diagnosis about gender identity disorder or any other medical and/or psychological condition." Pollock claimed that the prison had violated her privacy rights by requiring her to shower, change clothes, and use the toilet together with other male inmates and/or in the presence of male guards. Pollock also charged that guards had engaged in "grop[ing]" during pat-down searches. The court held that Pollock was not entitled to have privacy in a prison cell, observing that courts had not recognized any application of the 4th Amendment's ban on unreasonable searches and seizures in a prison context. Although the court found that the trial court did not adequately address constitutional issues, it nonetheless found that the privacy claims had no merit and that the paramount need for institutional security overrode any claims by Pollock. _Daniel R Schaffer_ Federal Court Says NY Parole Board Can Ban Possession of Porn, If It Can Define Porn U.S. District Judge Deborah Batts (a member of LeGaL and, to date, the only openly lesbian nominee to be confirmed by Congress as a federal judge) preserved a parolee's challenge to re-arrest on an alleged violation of a vague anti-pornography parole condition in _Farrell v. Burke_, 1998 WL 751695 (S.D.N.Y., Oct. 28). Plaintiff Christopher Farrell, incarcerated for three counts of sodomy in the third degree, was paroled in October, 1994. In March, 1995, Parole Officer Corey Burke imposed on Farrell the Special Condition that Farrell agree not to "own or possess any pornographic material." In May, 1996, Burke arrested Farrell and revoked his parole for possession of two books, _Scum: True Homosexual Experiences_ and _Best Gay Erotica, 1996_, and the magazine _My Comrade_. Farrell alleges that Burke acted under color of state law to deprive him of his First and Fourteenth Amendment rights in violation of 42 U.S.C. sec. 1983. Burke and his Parole Board codefendants moved for dismissal based on absolute immunity, qualified immunity, and the rule in _Heck v. Humphrey_, 512 U.S. 477 (1994). _Heck_ bars sec. 1983 claims which would invalidate a conviction or sentence (in Farrell's case, parole revocation) which had never been "reversed on direct appeal, expunged by executive order," or otherwise directly invalidated. Judge Batts found that the facts did not place the instant case clearly within _Heck_'s ambit for several reasons including: _Heck_ creates no additional state exhaustion requirement and it is unclear that parole revocation satisfies the "conviction or sentence" requirement, and _Heck_ bars challenges to the substantive result rather than challenges to procedure, but it is unclear whether Farrell's complaint challenges the result of the parole revocation process or the procedures "from imposition of the Special Condition through subsequent parole revocation" used. Judge Batts also declined dismissal based on Defendants' absolute immunity argument because Farrell's complaint provided no factual basis for determining whether imposition of the Special Condition was an adjudicative act and his arrest was a prosecutorial act or if either or both were administrative acts. The opinion cites instances where cases and Parole Guidelines have characterized such acts each possible way; however absolute immunity protects officials in performance of their adjudicative and prosecutorial functions but not administrative ones. As to Defendants' claim of qualified immunity, Judge Batts analyzed First and Fourteenth Amendment rights as applicable to a parolee in this context, noting that New York parolees have status equivalent to an inmate and retain only "those First Amendment rights that are not inconsistent with status as a prisoner or penological objectives." Finding neither Second Circuit nor Supreme Court support for the unrestricted First Amendment right of a paroled sex offender to possess pornography (citing subsequent cases approving restrictions), the Judge dismissed Farrell's First Amendment claims. Plaintiff Farrell's Fourteenth Amendment due process claims, however, were preserved on the basis that he was "charged with understanding the scope of a Special Condition which even his Parole Officer did not fully understand." While Farrell does not consider any of the materials pornographic, Burke "testified that he believed the Special Condition applied to possession of any material that included a nude depiction, including Playboy Magazine or a photograph of Michelangelo's sculpture, "David"." Judge Batts concluded that "a close question exists as to whether Plaintiff was entitled to a clearer definition of the Special Condition," and so dismissal of the claim was not warranted. _Mark Major_ Same-Sex Harassment Plaintiffs Strike Out In Two District Courts Two United States District Courts have entered judgments for defendants on post-_Oncale_ same-sex sexual harassment claims. _Higgins v. New Balance Athletic Shoe, Inc._, 1998 WL 749036 (D. Me., Oct. 14); _Pfullman v. Texas Department of Transportation_, 1998 WL 754918, (W.D. Tex. Oct. 16). In _Higgins_, the court granted summary judgment for the defendant on the plaintiff's sexual harassment claim because the plaintiff had not shown that the discrimination was "because of" his sex or gender, as the U.S. Supreme Court required in _Oncale_. Although the court acknowledged that a man targeted for harassment because of perceived effeminate behavior might have a Title VII claim, Higgins had only alleged that he was a homosexual and that his harassers perceived him as such. In other words, the court held, while allegations of harassment because of sexual orientation are not actionable, allegations because of sex or gender, including social sex roles associated with masculinity or femininity, are actionable. By contrast, the _Pfullman_ court wasted little time interpreting the riddle of _Oncale_'s mandate. Following a bench trial, the court entered judgment for the defendant. Pfullman alleged five incidents of sexual harassment involving a supervisor sitting on his lap and making crude sexual comments. Resolving all factual disputes in the defendant's favor, the court even finds that, "Without being aware of it, Plaintiff was apparently eating his sausage in a suggestive manner." Of the five incidents the Plaintiff alleged, the court found evidence to support only three, and found that those did not support a conclusion that there was a hostile work environment. The court also ruled against Pfullman on his retaliation claim. _Dirk Williams_ Court Stops Library From Censoring Internet Access In _Mainstream Loudoun v. Board of Trustees of the Loudoun County Library_, 1998 WL 822105 (U.S.Dist.Ct., E.D.Va., Nov. 23), District Judge Leonie Brinkema found that a policy on internet access promulgated by public library trustees violated the 1st Amendment, and enjoined the trustees from continuing to enforce it. Under the policy adopted on Oct. 20, 1997, the library adopted a series of restrictions on internet access through library terminals. In addition to blocking all access for e-mail, chat rooms, or pornography, the library installed a commercial site- blocking software package called X-Stop, which basically blocks access to any internet site with discussions of sex. This was purportedly for the purpose of preventing library terminals from being able to access any child pornography, obscene material, or material deemed harmful to juveniles. It had the effect, as the court found, of blocking access to such websites as The Safer Sex Page, the Books for Gay and Lesbian Teens/Youth Page, and the Renaissance Transgender Association page, all of which the court found to contain no material the fell within the above descriptions. The court found that this was a content-based restriction on speech, thus invoking strict scrutiny under the 1st Amendment,a nd that it was not narrowly tailored . Furthermore, the court noted that the policy inappropriately restricted adult access based on a judgment that material was not fit for viewing by juveniles, provided inadequate standards for restricting access, and provided inadequate procedural safeguards to ensure prompt judicial review of individual blocking decisions. A.S.L. Federal Judge Refuses to Help Porn Producer Enforce Its Copyrights In a rather unusual opinion, U.S. District Judge John S. Martin, Jr., ruled Nov. 13 that a producer of obscene materials is not entitled to the assistance of the court in going after a company that is pirating the pornographer's wares. _Devils Films, Inc. v. Nectar Video_, 1998 WL 790921 (S.D.N.Y.). Devils Films, a producer of sexually-explicit films, discovered that pirated copies of its videotapes were being sold by Nectar Video. The plaintiff filed suit against Nectar for copyright infringement, and applied to the court for an order to have the U.S. Marshall enter the defendant's premises and seize videotapes listed on an exhibit to the application. Based on the titles, which include "Straight Anal," "Lesbian," and "Transsexual," and "one even more explicit category," Judge Martin viewed some of the pirated videotapes that had been purchased by plaintiff's agent in defendant's store and submitted as exhibits, and found that "they are hard core pornography bereft of any plot and with very little dialogue" and thus were "obscene" under current constitutional standards. Martin determined that the court should not exercise its equitable powers "to support the operation of plaintiff's pornography business. While the Court may not discriminate in the exercise of its powers because it disagrees with the content of protected speech, the First Amendment does not protect obscene material." While acknowledging that both the 5th and 9th Circuits have held that "obscenity is not a defense to a claim of copyright violation," Martin observed that plaintiff's business included producing these videotapes in California and shipping them to New York and other places, thus violating a variety of federal laws governing commerce in obscene matter. "Given the clearly criminal nature of plaintiff's operation, it is self-evident that the Court should not use its equitable power to come to plaintiff's assistance and should invoke the doctrine of unclean hands and leave the parties where it finds them," Martin expostulated (if one can expostulate in print...). He also expressed doubts that the 2nd Circuit would follow the lead of other circuits in finding that a producer of obscene matter can resort to the federal courts for assistance in enforcing their copyrights. A.S.L. Labor Arbitrator Rejects D.P. Benefits Claim Labor Arbitrator Thomas J. Coyne rejected a grievance against the Marion City Schools and Marion Education Association claiming that the school board had discriminated against unmarried live-in partners of teachers by denying them insurance coverage. The union claimed that there was nothing in the collective bargaining agreement to prevent a teacher from defining his or her family to include an unmarried partner, and claimed that the employer had actually continued to carry divorced spouses of some employees on its health insurance roles. The arbitrator said that the allegations about divorced persons were "foolish, exaggerated and misleading" and had been "designed to confuse the real issue." He went on to say that a family, under the contract, consists of "persons who are legally responsible and accountable for the caring of one another," and that this definition did not include unmarried partners. In light of the "clear and unambiguous language," wrote Coyne, no financial consideration "is due to any union member who is single, but would like to claim family status for his or her friends." _In re Marion city Schools and Marion Education Association_, 111 Lab. Arb. (BNA) 134 (1998). A.S.L. Election Notes In Hawaii and Alaska, voters approved constitutional amendments dealing with the definition of marriage by margins of about 2-1. In Hawaii, the measure, intended to overrule the state Supreme Court's decision in _Baehr v. Lewin_, 852 P.2d 44 (Haw. 1993), gives to the legislature the authority to declare that a legal marriage can only be contracted between a man and a woman. Some would argue that this moots the final appeal pending in _Baehr_, but plaintiffs' attorneys, Hawaii attorney Dan Foley and Lambda Legal Defense Fund Marriage Project Director Evan Wolfson, urged that the court continue to decide the case. And the court asked the parties on Nov. 23 to submit briefs on the effect of the constitutional amendment on the lawsuit. Immediately after the election, re-elected Governor Ben Cayetano announced he would propose a more comprehensive version of domestic partnership legislation to expand on the reciprocal beneficiary law that had already been passed as part of the political deal that put the amendment initiative on the ballot. In Alaska, the measure defines marriage for purposes of state law as the union of a man and a woman. The state has moved to dismiss the pending same-sex marriage case. In other referenda, voters disapproved measures to ban sexual orientation discrimination in: Fort Collins, Colorado; Fayetteville, Arkansas; and Ogunquit, Maine. A pro-gay rights measure was narrowly passed in South Portland, Maine. In U.S. Congressional elections, openly-gay Representatives Barney Frank (D.-Mass.) and Jim Kolbe (R.-Ariz.) were re-elected (Frank without formal opposition in his district). Tammy Baldwin, an openly-lesbian Wisconsin state legislator, became the first openly lesbian member of Congress and the first openly lesbian or gay person to be elected to Congress who was not already an incumbent, by winning a hot contest for an open seat by a decisive margin. She was also the first woman ever to be elected to Congress from Wisconsin. (Both Frank and Kolbe, and former Congressmen Gunderson and Studds, came out while members of Congress.) Other openly lesbian or gay candidates for Congress, Paul Barby, Margarethe Cammermeyer and Christine Kehoe, all attempting to unseat incumbents, were unsuccessful, although each of them did amass a credible percentage of the vote under the circumstances. The only openly-gay statewide elected official, Vermont State Auditor Ed Flanagan, a Democrat, was re-elected with a 13 point margin. According to a summary produced by the _Washington Blade_ (Nov. 6), all gay incumbents running for re-election around the country appeared to be successful. In San Francisco, Tom Ammiano was the top vote-getter for the Board of Supervisors, and thus will be president of the board. Challengers to incumbents or seeking open seats had mixed success. Elected to state offices were Jarrett Barrios (Massachusetts), Jackie Biskupski (Utah), Tom Duane (New York), Mary Ann Guggenheim (Montana), Steve May (Arizona), and Mark Pocan (Wisconsin). May becomes the only openly-gay Republican state legislator. An Oregon race involving Elli Work was too close to call at the _Blade_'s press time. In addition, Jim Graham was elected to the D.C. City Council, and Anne Stradauskas was elected Baltimore County Sheriff. This last election result was ironic, since a state court judge in Baltimore County recently ruled that the sodomy law may not be enforced by local law enforcement authorities against consenting adults. In other races, perhaps the most significant result for future lesbian and gay legal developments was the election of Gray Davis as governor in California. His two immediate predecessors, George Deukmejian and Pete Wilson, had vetoed numerous legislative measures sought by the lesbian and gay and AIDS-activist communities that are likely to be signed by Davis if they clear the legislature in the future, including a sexual-orientation amendment to the Fair Employment and Housing Code and a domestic partnership registration bill. On the federal level, the Republican party retained working control of both houses of Congress, lessening the likelihood that the Employment Non-Discrimination Act could be brought to a vote in either chamber during the next Congress. In an interesting twist, the Senate candidate in New York favored by Human Rights Campaign, the national lesbian and gay political organization, Republican Senator Alfonse D'Amato, was defeated by Democratic U.S. Rep. Charles Schumer, the endorsee of Empire State Pride Agenda, the N.Y. State lesbian and gay political organization. Exit polls indicated that the overwhelming majority of voters who identified themselves as lesbian or gay supported Schumer. A.S.L. Legislative Notes More than twenty years after a repeal referendum of a gay rights ordinance in Miami-Dade County, Florida, made national headlines due to the leadership of Anita Bryant, the spokesperson for the Florida Citrus Commission, in obtaining the repeal, the Miami-Dade County Commission has at long last voted to pass an ordinance prohibiting discrimination on the basis of sexual orientation in employment and housing. The 7-6 vote on Dec. 1 came after a heated debate by the Commissioners with much audience demonstrator participation, and amid vows by the local Christian Coalition leaders that a new referendum would be sought to repeal the measure. _Associated Press_, Dec. 2. The Camden, Maine, Board of Selectmen voted unanimously late in November in support of the concept of non-discrimination on the basis of sexual orientation. As a result of the vote, the town personnel board will consider a proposal to ban sexual orientation discrimination in town employment, and the selectmen agreed to lobby the town's health insurance provider to make domestic partnership coverage available. However, the chair of the board's human rights committee said it has not decided whether to propose a broader ordinance that would cover private-sector activity, as uncertainty exists whether such a measure should be deferred pending attempts to pass a new state-wide gay rights bill to replace the one repealed by voters earlier this year. _Bangor Daily News_, Dec. 1. N.Y. Parade Permit Procedure Ruled Unconstitutional U.S. District Judge Leonard Sand ruled Nov. 16 that the procedure for granting parade permits in New York City, the frequent bane of lesbian and gay rights and AIDS organizations, is unconstitutional due to a lack of time limits for the police department to respond to applications. _MacDonald v. Safir_, 1998 WL 799179 (S.D.N.Y., Nov. 16). Although Sand rejected other grounds for challenging the permit process, including the way in which the police department is given broad discretion to deny permits, he noted a suspicious pattern by which permits from uncontroversial groups or groups favored by the city administration are granted with dispatch, while applications from disfavored groups (including, for example, the Irish Lesbian and Gay Organization, or ACT-UP, or groups protesting police brutality) are held for long periods of time, and then denied shortly before the target date for the march or parade, thus putting the burden on the applicants quickly to find a judge to seek a court order allowing them to march. The lack of a firm time schedule for ruling on permits effectively denies adequate time for judicial review, and leaves open the opportunity for inequitable treatment with respect to access to a public forum. Sand ordered the city to come up with an appropriate set of regulations incorporating an adequate time schedule. * * * In another action, a panel of the 2nd Circuit Court of Appeals ordered New York City to allow Housing Works, an AIDS services group, and ACT-UP NY to hold a press conference in City Hall Plaza on December 1 to commemorate World AIDS Day and protest various aspects of the city's AIDS policy. In _Housing Works, Inc. v. Safir_, 1998 WL 823614 (S.D.N.Y., Nov. 25), District Judge Harold Baer Jr. had ordered the city to allow a demonstration to be held on the steps of city hall, but the 2nd Circuit subsequently cut back the order to place the demonstration in the plaza below the steps. (The city had wanted to limit the demonstration to City Hall Park, south of the plaza and further away from City Hall.) In a bizarre show of force, the Giuliani Administration routed the paltry number of demonstrators into police pens, surrounded them with scores of police officers, and had helicopters hovering over the event as environmental inspection officers used sound monitors to determine whether noise levels were exceeded as demonstraters read the names of people who have died from AIDS over a microphone. Meanwhile, a high chain link fence has been erected restricting entry to City Hall Park, emphasizing the growing paranoia of Mayor Giuliani about the security of his tiny, early 19th-century fortress. _New York Times_, Dec. 2. A.S.L. Suit Allowed on Sexual Orientation Harassment Claim The Superior Court of Connecticut denied a motion for summary judgement where a deceased worker's estate administrator, David Bogdahn, claimed that decedent Paul Pelletier faced sexual orientation discrimination at his work which lead to his suicide. _Bogdahn_ v. Hamilton Space Systems International, Inc., 1998 WL 756722 (Oct. 7). The suit also named as defendants Pelletier's union representatives. Pelletier, a union steward and member of the union's auditing committee, Pelletier filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CCHRO) on June 1, 1994, claiming discrimination and harassment. On June 18, he committed suicide. The CCHRO complaint was amended to claim that harassment led to his suicide. Bogdahn filed the federal court suit on July 11, 1995. According to the complaint, Pelletier found what he believed to be financial irregularities in Local 743, involving named defendant union officers Bond and McGarry, but the union took no action on the report. According to the complaint, Bond and McGarry began a campaign to replace Pelletier as steward and auditing committee member, painted derogatory remarks on the rest room walls and distributed leaflets "insulting" to Pelletier. The complaint also cited verbal and physical harassment and assault. Neither Hamilton Standard nor the IAM took any action to remedy Pelletier's complaints. The complaint claimed that as a result of the harassment Pelletier became depressed, suffered severe emotional distress and committed suicide. On July 23, 1997, U.S. District Judge Posner dismissed the federal suit in an unpublished decision, citing "numerous fatal deficiencies" in the complaint, primarily failure to exhaust administrative remedies. In seeking summary judgment in the state suit, the defendants made the same arguments on which they prevailed in the federal court. Bogdahn responded that the federal case was dismissed on "procedural and technical grounds," and that "the absence of the release from the CCHRO was the key factor in the ruling," which should not preclude continuation of the state suit. Bogdahn also argued that Public Act 98-245, which prohibits sexual orientation discrimination at work, covers "all cases pending with the commissioner or in the courts." Superior Court Judge Teller ruled that summary judgment proceedings are to argue ". . . the presence of contested factual issues," not the "legal sufficiency" of claims, and dismissed the motion for summary judgement. The court also found that Bogdahn "did not have an adequate opportunity to litigate the case on the merits, since the [federal] District Court essentially determined that it lacked subject matter jurisdiction." _Daniel R Schaffer_ Law & Society Notes The American Center for Law and Justice, a conservative non-profit law firm, has filed suit on behalf of a dozen members and supporters of the Catholic Action League of Massachusetts, seeking to block implementation of Boston Mayor Thomas Menino's executive order that extends eligibility for health benefits to same-sex domestic partners of city employees. On Dec. 2, plaintiffs' attorney Vincent McCarthy appeared before Middlesex County, Massachusetts, Superior Court Judge Charles Grabau seeking a preliminary injunction to prevent the order from going into effect pending a trial on the merits of plaintiffs' claim that the mayor did not have authority to promulgate the order. Grabau was to rule on the order after this issue of _Law Notes_ goes to press. Full details next month. _Boston Globe_, Dec. 3; _Associated Press_, Dec. 2. The Vermont Supreme Court heard oral argument Nov. 18 on the state's refusal to grant marriage licenses to same-sex couples. In December 1997, the Superior Court had rejected the challenge in _Baker v. State of Vermont, No. S1009-97 Cnc (Crittendon Super. Ct. 1997). Supporters of the plaintiffs were cheered by the questioning of the judges, which seemed to indicate some sympathy for the plaintiffs' case. The _New York Times_ reported on Nov. 19: "In questioning lawyers Wednesday, some of the justices seemed to challenge the ban on same-sex marriage more than the proposal to lift it." California Secretary of State Bill Jones announced Nov. 17 that proponents of a ballot initiative to ban same-sex marriages in that state have submitted sufficient signatures for a place on the ballot in March 2000. The measure, labelled the "definition of marriage" initiative, mandates that the state only recognize as valid a marriage between a man and a woman. _Los Angeles Times_, Nov. 18. The U.S. Supreme Court refused to review the case of Charles Merino, a California police officer who was removed as a boy scout leader by the San Diego scouts after he "came out" as gay. Merino's case was lost in the state courts on the ground that the Scouts are not covered by the state's public accommodations law. He tried to raise an equal protection issue in his certiorari petition to the Supreme Court, but it would be unusual (virtually unprecedented) for the Court to grant certiorari on a ground never raised or considered in the lower courts. _Merino v. San Diego Boy Scouts_, 1998 WL 687066, No. 98-544 (Nov. 30). The Supreme Court denied certiorari in _Valentin v. Gates_, 1998 WL 686944, No. 98-526 (Nov. 16), letting stand lower court rulings that judges have tort immunity for their judicial actions. Raul Valentin, a transsexual, wanted to sue a Pennsylvania state judge who sentenced Valentin to exile from Lebanon, Pennsylvania, after Valentin was convicted by a magistrate of disorderly conduct as a result of an incident at a town swimming pool. According to an Associated Press report, Valentin, a preoperative transsexual who had been taking hormone injections to enhance breast size, was wearing a bikini and got involved in some sort of scrap with others at the pool. While serving a brief prison sentence, Valentin was tested and found to be HIV+. Valentin was then taken before Common Pleas Judge G. Thomas Gates, who ordered Valentin to leave town and not come back; the judge threatened Valentin with incarceration in state prison if Valentin returned to Lebanon. Valentin was taken to the bus station and put on the bus with a one-way ticket to New York City. Valentin now lives in a hospice on Staten Island. Valentin sued Judge Gates in federal court in 1997, but the action was dismissed on immunity grounds. _Associated Press_, Nov. 16. U.S. District Judge Bruce Jenkins (C.D. Utah) has refused to issue preliminary relief in _East High Gay/Straight Alliance v. Board of Education_, No. 2:98CV193J, an action brought jointly by the ACLU Lesbian and Gay Rights Project and Lambda Legal Defense & Education Fund on behalf of high school students in Salt Lake City seeking to form a gay/straight student alliance. The lawsuit challenges a school district policy withholding recognition from all extracurricular student clubs. Jon Davidson, a Lambda attorney, told the Associated Press that the plaintiffs may try to bring an interlocutory appeal of the Nov. 25 ruling. _Associated Press_, Nov. 26. Lambda attorney David Buckel appeared to argue the preliminary injunction motion for the plaintiffs. Russell Henderson and Aaron McKinney, co-defendants in the murder of Matthew Shepard, pleaded not guilty to first degree murder, kidnapping and robbery charges in Albany County, Wyoming, District Court on Dec. 2. Shepard, a gay college student, was found hanging almost lifeless tied to a fence and subsequently died in a hospital. Police have obtained confessions from both defendants, indicating that they had pretended to be gay to lure Shepard into their truck, intending to rob him, then took his wallet and beat him severely, leaving him tied to the fence. Exercising their rights under local law, they moved for a change of judge, and are expected to seek a change of venue away from Laramie. Judge Jeffrey Donnell will appoint a new judge to preside over the case. Prosecutors must announced by Dec. 31 whether they will seek the death penalty. The suspects' girlfriends, also charged as accessories after the fact, were to be arraigned on Dec. 9, after which a trial date will be set for the men. The men are seeking to be prosecuted separately, but the prosecution has been seeking a joint trial. _Washington Times_, Dec. 3. The National Gay & Lesbian Task Force has issued a new report by Prof. M.V. Lee Badgett, U. Mass. at Amherst, titled _Income Inflation: The Myth of Affluence Among Gay, Lesbian and Bisexual Americans_. Countering the argument that sexual orientation discrimination laws are not needed because gays are an economically comfortable group, Badgett documents that gay men actually make less on average than occupationally-comparable heterosexual men. Badgett shows that the frequently-cited data to the contrary are based on studies of non-representative groups, most often subscribers to glossy publications, who are disproportionately upper-middle-class compared to the gay population as a whole. _USA Today_, Dec. 3. The U.S. Court of Appeals for the 8th Circuit affirmed the trial court's judgment against a discrimination claim brought by Debera Cochenour, who was discharged as an employee of Cameron Savings and Loan in Missouri because she and another employee were spreading rumors in the bank about the customers' sexual orientation. _Cochenour v. Cameron Savings and Loan_, 1998 WL 789559 (Nov. 16). Cochenour claimed violations of the Americans With Disabilities Act, the Age Discrimination in Employment Act, and the Missouri Human Rights Act, but a jury was unpersuaded, the trial judge denied a motion for new trial, and the court of appeals found Cochenour's claims of error at trial to be either unfounded or, in one case, harmless. U.S. District Judge Lowell A. Reed Jr. (E.D.Pa.) issued a temporary restraining order on Nov. 19 blocking implementation of the so- called Child Online Protection Act (COPA), 47 U.S.C. sec. 231, recently signed into law by President Clinton. COPA is Congress's latest attempt to prevent the dissemination of sexually-oriented material on the Internet. The TRO, which was extended early in December, will bar enforcement of the act until Feb. 2, 1999. Reed scheduled a hearing on a permanent injunction on Jan. 20. _ACLU v. Reno_, Civ. Act. No. 98-5591 (E.D.Pa.). A Teradyne, Inc., employee announced in an internet posting on Oct. 30 that Teradyne, Inc., has announced domestic partnership benefits (medical/dental/vision) for same-sex partners of its U.S. employees. Rutgers University in New Jersey announced Nov. 13 that it will extend health benefits to same-sex partners of its employees to settle a pending discrimination suit. _New York Times_, Nov. 14. Johns Hopkins University had previously announced a similar decision, which will be effective in 1999. _Baltimore Sun_, Oct. 30. The City Council in Salt Lake City, Utah, which first passed a gay rights ordinance by a 5-2 vote, and then repealed the measure shortly thereafter by a 4-3 vote, has now moved to adopt a new ordinance that prohibits city supervisors from basing employment decisions on anything other than "job-related criteria." This is a new-style don't ask, don't tell ordinance: don't ask if it forbids sexual orientation discrimination, and we won't tell you that this is what we are doing. Just to make sure everybody knows what is being covered, the measure includes the following statement in the list of prohibited bases for employment decisions: "The status of having a lifestyle which is irrelevant to successful job performance; and the status of being in or outside of an adult interpersonal relationship or a family relationship." _Salt Lake Tribune_, Nov. 16. Mark Iversen, a former high school student in the Kent, Washington, school district, has settled his harassment suit against the district for $40,000. Iversen, who claimed that school officials failed to protect him against anti-gay harassment, had filed suit in July 1997, represented by the ACLU. The trial was scheduled to begin on Nov. 10 in Seattle, but settlement was reached on Nov. 6. Iversen is now a community college student, and will use the money for his education, personal counseling, and contributions to organizations that advocate youth diversity issues. _News Tribune_, Tacoma, Nov. 7. The _Washington Post_, reversing a long-standing policy, will now accept paid advertisements for same-sex unions. However, unlike announcements of weddings and engagements that are published on Wednesdays, the same-sex union announcements will be published on Friday's together with announcements of bar and bat mitzvas, family reunions, confirmations, retirements, and other special events. The _Post_ announced that the Wednesday society column was reserved for legally-recognized events. _Washington Blade_, Nov. 6. A.S.L. Professional Notes Karen Tramontano, an openly-lesbian attorney, has been appointed Assistant to the President and Counselor to the Chief of Staff in the White House. Tramontano will serve as a senior policy advisor to President Clinton as holder of one of the dozen top policy positions in the Executive Office, according to Richard Socarides, the White House Special Assistant who serves as President Clinton's liaison to the lesbian and gay community. _Washington Blade_, Nov. 6. The National Employment Law Project, based in New York City, is searching for a new Executive Director This organization specializes in impact litigation, public advocacy, support for organizing, technical assistance to grassroots organizations, unions and policy makers, and production of publications, all relating to individual and collective worker rights. Along with the usual administrative and policy skills, the job requires at least five years prior experience in the not-for-profit sector. Compensation starting at $60-70k, depending on experience, with excellent benefits. Send resume and cover letter by Dec. 11 to: Mr. Marttie L. Thompson, Chair, Board of Directors, NELP, 55 John Street, 7th Fl., New York NY 10038. A new association of lesbian, gay, bisexual and transgender lawyers in Israel will meet Dec. 9, at the offices of the Society for Gays, Lesbians, Bisexuals and Transgenders in Israel in Tel-Aviv. Information on the association can be obtained by e-mail: . A.S.L. Developments in European and U.K. Law _European Convention on Human Rights._ On Nov. 1, Protocol No. 11 to the European Convention on Human Rights came into force. (For the text of the Convention, as amended by Protocol No. 11, see "Texts" at www.coe.fr.) The Protocol makes several major changes to the procedure for enforcing the Convention, but does not change any of the substantive rights. The old full-time European Commission of Human Rights (a screening body) and part-time European Court of Human Rights are effectively merged into a new full-time European Court of Human Rights. Of the 39 judges appointed to the Court so far (one for each of the 40 Council of Europe member states, except Russia, which has not appointed a judge yet), 8 are women vs. only one for the old Court. The jurisdiction of the new Court is compulsory under new Article 34, whereas the jurisdiction of the old Commission and old Court had been subject to the periodic (and revocable) consent of the respondent government under old Articles 25 and 46. Applications by individuals complaining of violations of their Convention rights will now be made directly to the new Court, but around 90% will probably be declared inadmissible by three-judge Committees (the rough equivalent of a denial of cert. by the U.S. Supreme Court). Applications declared admissible will be heard by seven-judge Chambers, or where there is a serious question of interpretation or a risk of inconsistency with a prior judgment of the Court, by a seventeen-judge Grand Chamber. _Incorporation of the European Convention into U.K. Law._ On Nov. 9, the Human Rights Act 1998 received the Royal Assent (notional signature by Queen Elizabeth II) and became law, although it is not expected to come into force until 2000 (to allow for a period of judicial training). The Act (www.hmso.gov.uk/acts.htm) partially incorporates the rights in Articles 2 to 12 and 14 of the Convention, and parts of Protocols 1 and 6, into U.K. law. Since the Convention came into force in 1953, it has not been possible to enforce it directly in a U.K. court, but only to invoke it as an aid to interpreting ambiguous Acts of the U.K. Parliament, or as an inspiration for the development of common law rules. Direct enforcement required a trip to the European Commission and Court of Human Rights in Strasbourg. From 2000, litigants will be able to enforce it directly in U.K. courts, but only against acts of public authorities other than primary legislation (Acts of Parliament), i.e., secondary legislation and decisions of cabinet ministers, administrative agencies, the police, immigration officials, etc. that are not strictly required or authorized by primary legislation. Although sec. 3(1) requires courts to interpret primary legislation, "so far as it is possible to do so . . . in a way which is compatible with the Convention rights," taking into account the case law of the European Court and Commission of Human Rights (sec. 2), secs. 3(2) and 4(6) make it clear that courts do not have the power to strike down primary legislation that clearly violates the Convention. The Labour government was not ready to break with the British tradition of parliamentary sovereignty. Thus, the courts will be bound to uphold a hypothetical "Torture of Terrorists Act 2000." A judgment finding that such an Act violates the Convention, and which is binding on the U.K. government under Article 46 of the Convention, can only be obtained from the European Court of Human Rights. U.K. courts are empowered to issue non-binding declarations of incompatibility under sec. 4. These have no legal force but may have some political utility. The government may invoke a fast-track amendment procedure under sec. 10 if it chooses to comply with the court's declaration. An amendment to Article 14 (non-discrimination) of the Convention, adding an express reference to "sexual orientation," was rejected, but this proposal was a complete non-starter, in that it was always understood that incorporation would take place without changing a single word of the substantive rights in the Convention. An attempt to add a blanket exemption for religious institutions, so as to preclude feared challenges to refusals to ordain openly gay or lesbian priests or celebrate same-sex marriages, was watered down to a requirement in sec. 13 that courts "have particular regard" to the importance of freedom of religion (Article 9 of the Convention). _Same-Sex Partners of European Community Staff._ On Nov. 19, _D. and Sweden v. Council of the European Union_, Case T-264/97, was argued in the Court of First Instance of the European Communities in Luxembourg. The government of Sweden is supporting D.'s argument that his employer, the Council [of Ministers], should treat his Swedish same-sex registered partnership as equivalent to a marriage. See 1998 L.G.L.N. 136. There is generally no Advocate General's opinion in the Court of First Instance, so judgment could be rendered as early as Feb. 1999. _French National Assembly Debates Partnership Law._ The bill creating a new institution of "pactes civils de solidarite (civil solidarity pacts)," and granting those entering into these pacts many of the rights of married different-sex couples (but not the right to adopt children jointly), was debated by the French National Assembly (lower house of Parliament) in early November. These pacts would be open both to same-sex couples and different-sex couples who choose not to marry. This correspondent witnessed the vigorous, indeed noisy and undemocratic, opposition of deputies from parties of the right, who are doing everything possible to delay passage of the bill. If and when it is passed, they will probably take a case to the Constitutional Council, challenging its validity under the French Constitution. The text of the bill, related documents, and the debates can be found at www.assemblee-nationale.fr under "Dossiers d'Actualite - PACS." _Ireland Bans Sexual Orientation Discrimination in Employment._ On 19 June, the President of Ireland signed into law the Employment Equality Act, 1998, which bans discrimination in public or private sector employment based on sexual orientation and eight other grounds (including "membership of the travelling community"). The Unfair Dismissals (Amendment) Act, 1993 had already banned dismissals based on sexual orientation. The 1998 Act extends this protection to, inter alia, hiring, promotion, working conditions, collective agreements, advertising and vocational training. For further information, contact info@justice.irlgov.ie. _Dr. Robert Wintemute, School of Law, King's College, London_ Other International Notes South Africa's new Employment Equity Act, Act No. 55 of 1998, has now been promulgated, with text published in the Government Gazette, No. 19370, Oct. 19, 1998. Sec. 6 of the Act specifically forbids unfair discrimination, inter alia, on the basis of sexual orientation or HIV status, and Sec. 7(2) provides that HIV testing for employment may only be undertaken if "such testing is determined to be justifiable by the Labour Court." * * * Pension Funds Adjudicator John Murphy has ordered a South African pension fund to pay death benefits to a gay man in Cape Town following the death of his partner from AIDS. Murphy based his action on the South African constitution, which bans sexual orientation discrimination. Murphy reasoned that homosexual unions, in appropriate circumstances, should enjoy the same status, rights and benefits as heterosexual unions. _Cape Argus newspaper_, South Africa, Oct. 31, 1998. Trials of politicians on charges of inappropriate homosexual activity occurred during November in Zimbabwe and Malaysia. In Zimbabwe, former president (1980-1987) Canaan Banana was convicted of sodomy and assault in incidents involving bodyguards, chefs and gardeners at his official residence while he was in office, but Banana did not hang around for sentencing, fleeing the jurisdiction and turning up on Dec. 2 in a meeting with South African President Nelson Mandela. An Interpol official speculated to the press that Banana was hoping to gain asylum in Chile. Meanwhile, in Malaysia, Anwar Ibrahim, deputy prime minister and finance minister, was on trial on charges that he had made his wife's former driver a "homosexual sex slave." Ibrahim, who has denied the charges, asserts that they are politically motivated. The British Labour government decided to include a proposal to equalize the age of consent for gay men with that for heterosexuals (16) in the Queen's Speech at the opening of Parliament on Nov. 24, even though a similar measure that had passed the last session of the Commons was defeated in the House of Lords in July; the new proposal will include provisions intended to protect 16-17 year olds from exploitation by older men. The government shelved plans to repeal Clause 28 of the 1988 Local Government Act, which had banned local councils from expending funds for activities that might "promote" homosexuality, mainly due to political fallout from the "outing" or voluntary coming out of three members of the Blair cabinet, one of whom, Welsh Secretary Ron Davies, resigned after it was revealed that he may have been blackmailed in connection with an assignation at a known gay cruising place. Also among the newly out were Agriculture Minister Nick Brown and Trade and Industry Secretary Peter Mandelson, one of Prime Minister Tony Blair's closest political associates and advisors. Culture Secretary Chris Smith, who was appointed as an openly-gay minister, can now start a cabinet caucus if he is so inclined. _N.Y. Times_, Nov. 12; _Los Angeles Times_, Nov. 11; _Daily Telegraph London_, Nov. 6; _Daily Mail_, Nov. 5. Peter Tatchell, leader of the British gay rights group Outrage, was convicted on Dec. 1 of "indecent behaviour in a church" under an 1860 statute and punished with a token fine, amounting to about $30 in U.S. money, for having staged a protest in Canterbury Cathedral just before the Archbishop was to deliver his Easter sermon. Tatchell had ascended to the pulpit and called for the church to end its opposition to an equal age of consent for gay men and its ban on ordination of openly gay clergy. _Associated Press_, Dec. 2. Glen Murray has become the first openly gay man to be elected mayor of a major Canadian city: Winnipeg, the capital of Manitoba province. _Associated Press_, Oct. 30. The Tel-Aviv (Israel) Family Court ruled Oct. 18 that it does not have jurisdiction to hear a claim arising from the break-up of a longtime gay male couple, because the men, who had been together 15 years, did not constitute a family within the meaning of legal definitions governing the court's jurisdiction. Judge Shtofman suggested that the plaintiff file suit in the District Court, which has plenary jurisdiction. (Based on an Internet posting by Aeyal Gross, Faculty of Law, Tel-Aviv University) Israel now has its first openly-gay elected official: Michal Eden, a lesbian who was elected to Tel Aviv's municipal council on the Meretz Party line. Tel Aviv is the largest city in Israel. (Based on an Internet posting by the Community of Feminist Lesbians in Israel.) The Dutch Cabinet has approved a legislative proposal to allow same-sex couples to adopt children. However, to avoid controversy with other countries, only Dutch children could be adopted. The measure will be submitted to the Parliament early in 1999. Same- sex couples in the Netherlands were allowed to enter a civil contract akin to marriage effective last Jan. 1, but the new status did not include the same rights to adopt children that are afforded to heterosexually married couples. _Associated Press_, Nov. 15; _Reuters_, Nov. 13. Canada's courts, which have been far out front of other countries in expanding the legal rights of same-sex couples, are now pondering the accompanying responsibilities. Brian Orser, a pro figure skater and two-time Olympic silver medalist, is the respondent in a palimony suit by a former boyfriend, Craig Leask, who is seeking $5,000 monthly support payments, property, access to Orser's vacation home, and damages for "adultery" by Orser. Orser had tried to keep the case under wraps, but Ontario Court Judge Susan Lang refused to keep the proceedings anonymous, stating that disclosure of the parties' identities "would not attract any public stigma" in modern Canadian society. The outcome of _Leask v. Orser_ will likely turn on the outcome of a case involving a lesbian couple presently pending before the Canadian Supreme Court. _Newark Star-Ledger_, Nov. 21; _Toronto Globe and Mail_, Nov. 19. According to a posting on Queernet by Ales Pecnik of Ljubljana, the new Slovenian "Law About Work Relations" which took effect Oct. 24, 1998, includes a ban on sexual orientation discrimination and same- sex workplace harassment. A.S.L. AIDS & RELATED LEGAL NOTES 6th Circuit Affirms Summary Judgment Against PWA in Discrimination Suit In an unpublished disposition, a divided panel of the U.S. Court of Appeals for the 6th Circuit upheld a grant of summary judgment to the employer in an AIDS discrimination suit. _Fisher v. Trinova Corporation_, 1998 WL 774111 (Oct. 13) (notice to be published in F.3d table). Thomas Fisher, a 12-year employee, was fired without notice on June 23, 1994, from his position as Director of Total Quality Management at Vickers, Inc., a subsidiary of Trinova Corp. At the time, Fisher had been working in that position in the defendant's Ohio offices for about a year, after having transferred from another subsidiary in Los Angeles where he had been employed as Manager of Training and Education. In 1991, Fisher suffered from Porphryia Cutanea Tarda, an unsightly skin condition, and he also had a tumor removed from his neck that year, leaving him gaunt and anemic. In January 1992, he received a positive result from an HIV test, and later (in 1993) confided in one co-worker, Mary Everett, who has testified that she kept the information totally confidential. Later in 1992, Fisher received an award from the company for his superior work, and when it proved necessary to eliminate his position late in 1992, he was offered the opportunity to transfer to the Ohio offices. When he expressed hesitancy due to the likely loss upon sale of his house, the corporation bought his house at a rate somewhat below his purchase price but well above the price the corporation recovered when it resold the house. During his employment in the Ohio office, Fisher experienced recurrent shingles and got into a tussle with the employer's insurance company, which required intervention from corporate human resources staff in order to get Aetna to cover some of his claims. In January 1994, Fisher was diagnosed with AIDS-related complex and began receiving AZT, submitting his claims to Aetna and experiencing no problems with coverage. When he was discharged in June 1994 without warning, the company claimed that this was due to elimination of his position, but Fisher came to believe that decision-makers in the company suspected he had AIDS and had fired him for that reason. He believed that they would have learned from Aetna that he was taking AZT, and suspected that his former co- worker in Los Angeles may have shared the information with others. Fisher filed suit under the Americans With Disabilities Act. The district court granted summary judgment to the company. Writing for the court of appeals panel, Circuit Judge Batchelder found that Fisher had failed to provide to raise a colorable claim that the company was aware that he was HIV+ or had AIDS-related complex at the time he was discharged. Wrote Batchelder, "the plaintiff . . . must show in his prima facie case that it is at least possible that the employer fired him because of the disability; in other words, the plaintiff must show knowledge, actual or constructive, before the burden ever shifts to the employer. . . Fisher failed to provide the court with enough evidence from which a jury could reasonably infer that Defendants knew of Fisher's HIV status, instead setting forth only a speculative theory lacking in evidentiary support." Batchelder found that at best Fisher had suggested a possible chain of information by which his supervisor could have known that he was HIV+, but that the chain "contains too many broken links." For example, employees of the company's human resources department and employees of Aetna submitted affidavits specifically denying that the company employees knew the nature of Fisher's medications or that Aetna would divulge such information to an employer, and Fisher's co-worker swore that she never broke his confidence concerning his HIV status. Dissenting, Circuit Judge Merritt described this as a "close case" in which he "would allow this case to go to the jury and not cut off the plaintiff's opportunity to prove his case at trial. . . The evidence discloses that a secretary to the plaintiff and plaintiff's supervisor thought that plaintiff may have had AIDS and that he was gay, and it seems likely that this information was communicated to others at the company, including managers. It was suspicious that plaintiff was fired summarily after just a year at his new job with the company in Ohio. the plaintiff had worked for the company for twelve years and had recently received an outstanding employee award. I believe that the plaintiff's evidence, taken in the light most favorable to him, raises an inference that the company knew he had AIDS. This inference creates a genuine issue of material fact." The court's decision is consistent with the 6th Circuit's overall record of hostility to HIV and AIDS discrimination claims under the ADA. A.S.L. Maine Supreme Court Affirms Decision to Let Mother Control Child's AIDS Treatment In a unanimous ruling issued on Nov. 19, the Supreme Judicial Court of Maine affirmed the district court's ruling rejecting an attempt by the state to superseded the mother of a 4-year-old HIV+ child in making medical treatment decisions. _In re Nikolas E._, 1998 WL 803280. However, Chief Justice Wathen's opinion for the court indicated that this might not be the last word on treatment for Nikolas. Nikolas's mother and father, who are divorced, are both HIV+, and NIkolas's sister died in January 1997 from AIDS-related causes. During 1997, Nikolas's family doctor, Jean Benson, referred Nikolas to a pediatric infectious disease specialist, Dr. John Milliken, who recommended that Nikolas undergo highly aggressive anti- retroviral therapy, the latest high-potency drug cocktail for HIV infection. Nikolas's mother, recalling the severe reactions that her daughter had suffered under an anti-retroviral regime, rejected this recommendation, stating that she would rather wait to see how Nikolas fared on his current treatment regimen before approving the more high-powered treatment. Milliken sent a copy of his treatment recommendations to the state, expressing concern about the mother's unwillingness to approve the treatment. State officials then referred Nikolas's mother to another specialist, in Boston, who discussed the therapies with her. This specialist, Dr. Kenneth McIntosh, opined that the mother was not being irrational in her approach to the treatment issue, but the state nonetheless brought suit for a child protection petition, seeking to supplant Nikolas's mother as his medical decision-maker. The district court, finding that the medical experts could not state with certainty whether and how much the proposed treatment would benefit Nikolas, and finding that the mother was keeping an "open mind" about future resort to this therapy should Nikolas's condition worsen, refused to grant the petition. The guardian ad litem who had been appointed by the district court to represent Nikolas's interests in the proceeding appealed this determination. After concluding that the guardian had standing to appeal the district court's ruling, despite the failure of the state to initiate an appeal, Chief Justice Wathen found that the statutory authorization for the state under 22 M.R.S.A. sec. 4003 provided that children could be taken from the custody of their parents "only where failure to do so would jeopardize their health and welfare." In this case, the district court had construed this to mean that the state had a burden of showing imminent danger to Nikolas before his mother's custody could be terminated. Endorsing the district court's view, Wathen noted that Nikolas's mother's willingness to keep an open mind about future treatment suggested that the harm requirement of the statute had not been met, and found that the district court's "findings implicitly reflect that the appropriate factors were weighed" in determining whether the state had met its burden to justify terminating custody. Since the district court's findings were reviewable under the "clear error" standard, and the expert testimony failed to quantify conclusively how the proposed treatment would benefit Nikolas, the Supreme Judicial Court refused to substitute its judgment of the evidence for that of the district court. "In this case, although there was evidence that would support the guardian's argument that Nikolas was in circumstances of jeopardy, the evidence does not compel such a finding to the exclusion of any other. The credibility and weight of the evidence is within the province of the factfinder," wrote Wathen. The state had conceded that the expert testimony could be construed either way. "Thus, the court was not clearly erroneous in remaining unpersuaded that jeopardy had been established." However, Wathen cautioned that should either Nikolas's condition or the information about available treatments change, "that balance could shift in favor of treatment. Neither the parents nor the State should assume that the trial court's decision, affirmed by our opinion today, is necessarily the final word on treatment for Nikolas." A.S.L. Eleventh Circuit Backs Away From AIDS Insurance Ruling In _World Insurance Co. v. Branch_, 156 F.3d 1142 (11th Cit., Sept. 29), the court backed away from a trial court ruling on AIDS-caps under Title III of the Americans With Disabilities Act by finding the issue moot and vacating a ruling by U.S. District Judge Richard C. Freeman which had been issued on May 22, 1997. In his ruling, _World Insurance Co. v. Branch_, 966 F.Supp. 1203 (N.D.Ga. 1997), Freeman had found that an attempt by an insurer to limit lifetime AIDS claims under a health insurance policy to $5,000 was unlawful disability discrimination under the public accommodations provisions of the ADA. At the same time, however, Freeman had determined that the plaintiff insurance company's demand to rescind the policy for fraud (non-disclosure of HIV status by the insurance applicant) would be governed by Texas law, which allows fraud claims to proceed despite an insurance policy's incontestability clause. Subsequently, Freeman ordered the policy rescinded. Defendant Ralph Branch appealed the rescission order, and the Plaintiff insurance company appealed the AIDS-cap ADA ruling. In a brief per curiam opinion, the circuit court upheld the rescission ruling and stated that "because the policy has been rescinded, the district court's ruling regarding AIDS and Title III of the ADA is moot and is vacated." At the time it was issued, Freeman's ruling was hailed as a potentially significant precedent under the ADA, as courts are divided over whether the contents of insurance policies are covered under the public accommodations provisions of that statute. A.S.L. Federal Court Rules HIV+ Inmate Not Entitled to His Choice of Treatment In _Polanco v. Dworzack_, 1998 WL 770463 (U.S.Dist.Ct., W.D.N.Y., Sept. 30), District Judge Siragusa held that an HIV+ state prison inmate did not have a constitutional right to his treatment of choice. Wilfredo Polanco had been incarcerated at Clinton Correctional Facility, where he was receiving a dietary supplement called "Ensure" as part of his HIV-related treatment. He was transferred to Attica, where his continued demands to continue receiving Ensure were rejected by the prison staff. Polanco filed suit claiming an 8th Amendment violation based on the refusal of the medical staff at Attica to provide the dietary supplement he had requested. (Polanco refused conventional HIV/AIDS treatments, insisting that he would treat his condition solely through dietary supplements.) The Attica medical staff determined that he did not need a dietary supplement, based on a thorough physical examination, but did relent to the extent of placing him on a list to receive an extra snack each evening, usually a bologna sandwich. Polanco was allegedly abusive to the staff, and occasionally threw the sandwich back at the server. State corrections officials investigated his complaints, and determined that he had received frequent treatment, a full examination upon arrival and regular monitoring, and that he had refused the drugs that had been prescribed for him. When he left Attica, his weight was higher than when he arrived. District Judge Siragusa held that the defendants were entitled to judgment as a matter of law. "The defendants have demonstrated that they properly treated the plaintiff in accordance with Attica's medical protocols. . . The defendants have demonstrated that the plaintiff's complaint is only that he was not given a specific, name-brand dietary supplement. The plaintiff was given a daily supplementary snack, however he was dissatisfied because he did not receive Ensure. Thus, the plaintiff's claim arises entirely from his disagreement with his doctor's medical judgment." Under established 8th Amendment standards, a prisoner's disagreement with a prison doctor's professional judgment does not rise to the level of cruel and unusual punishment necessary to state a valid legal claim against the prison. A.S.L. Federal Court Lets Breach of Confidentiality Claim in City Jail Proceed Against Milwaukee U.S. District Judge Gordon (E.D.Wis.) refused to dismiss a claim that the City of Milwaukee may have violated the rights of an HIV+ person when police officers placed a sign on his jail cell stating "HIV Positive Inmate." _Roe v. City of Milwaukee_, 1998 WL 790728 (Nov. 2). Plaintiff "John Roe" was arrested by Milwaukee police officers late on the night of May 6, 1997, for reasons not specified in this opinion. Noticing that he had a cut on his hand, the officers called a paramedic to the scene, to whom Roe disclosed that he was HIV+. When he was brought to the police station for booking, Roe disclosed his HIV status to the booking officer. After he was placed in his holding cell, the booking officer taped a pink piece of paper with bold black writing on his cell door, stating "HIV Positive Inmate." Doe asked why the sign was placed there, and the officer replied that it was "a reminder to sanitize the cell after the plaintiff left and before another inmate occupied the cell." Roe asked that the sign be removed, and eventually (after three hours) it was. Roe alleged that the sign was visible to other prisoners and anyone else coming into the jail. Roe filed a suit in state court, alleging federal and state constitutional and statutory violations against both the city and individual named police officers. The defendants removed the case to federal court and filed motions to dismiss. Roe moved to have the state law claims remanded to state court, and for the federal court to abstain from ruling on the federal claims until the state law claims were decided. Judge Gordon agreed with Roe that the state law claims raised novel questions concerning interpretation of Wisconsin's privacy statute as well as the Wisconsin constitution, as to which there was no controlling state court precedent, and thus that it was prudent for the court not to exercise supplementary jurisdiction over these claims and to remand them. Turning to the federal claims, Gordon ruled first that abstention on these claims was not appropriate, since resolution of the state law claims would have no significant effect on the federal claims. Gordon next ruled that the individual named defendants have qualified immunity, rejecting Roe's argument that a prior decision by the 7th Circuit on a prisoner HIV confidentiality claim would have established at the time of this incident that the officers' actions were unconstitutional. Gordon found that the statements in the opinion upon which Roe relied were dicta in that case, and that prior district court opinions on which Roe relied could not serve to show that a constitutional principle was established at a particular time. However, Gordon found that Roe had alleged a facially valid claim that the city's failure to train, supervise and enforce lawful policies regarding disclosures of jail occupants' HIV-status deprived Roe of his rights to privacy, liberty, due process and equal protection in violation of the 9th and 14th Amendment and constituted cruel and unusual punishment under the 8th and 14th Amendment. Gordon commented that "a local government entity may be subject to suit under sec. 1983 for inadequate training of its employees. . . where the failure to train amounts to deliberate indifference to the rights of persons with whom municipal employees come into contact." In this case, Roe's allegations were sufficient to state a claim "because they give the defendants notice of the plaintiff's claim against the City." Further, that the individual officers could not be held liable because of qualified immunity was not dispositive of the city's liability, since the immunity ruling was not based on the merits of the claim. Gordon also ordered that Roe file a new motion seeking the right to proceed anonymously in federal court, as his only motion for anonymity had been filed solely with the state court. A.S.L. California Appeal Court Rules Defendant May Not Be Subjected to Involuntary HIV Testing Apart From Statutorily Specified Grounds In _People v. Khonsavanh S._, 79 Cal. Rptr. 2d 80 (Oct. 14), the California Court of Appeal, Fourth District, Division 1, held that a juvenile convicted of a felony and sentenced to confinement could not ordered to undergo AIDS testing as matter of judicial discretion, absent presence of a statutory basis for such testing. Khonsavanh was a member of Oriental Killer Boys (OKB), a street gang. On two consecutive nights, shots were fired from the same car at members of a rival gang, who fled both times. Khonsavanh was admittedly in the car on the second night, having joined his gang members explicitly to go cruising in the rival gang's territory, although he claimed that at the time he was in the back seat and sleepy from drinking at a party earlier that evening. There was no finding that Khonsavanh had fired any of the 10 to 20 shots that were fired. No person was injured, although on the first night a dog was hurt. Investigators traced the car to an OKB member, who admitted he was involved in both incidents. Khonsavanh was convicted after trial before a court-appointed referee of aiding and abetting the shootings on the second night and was sentenced to a maximum term of confinement fixed on appeal at 18 years and 4 months. After the conviction, with no request by the prosecution nor a recommendation to such effect by the referee, the trial court on its own initiative ordered Khonsavanh to undergo AIDS testing. In addition to appealing the conviction, Khonsavanh appealed from that order. After upholding the conviction, Associate Justice Haller, writing for the court, addressed the testing order. Haller rejected the Attorney General's argument of waiver by failure of Khonsavanh to object below, and held there were "peculiar circumstances" justifying a finding of no waiver. Haller found that the issue arose fleetingly at the close of the dispositional hearing, in which defense counsel was "utterly surprised" by the court's ruling and had little opportunity to react. Haller agreed that the waiver doctrine was sound in that it is intended to reduce errors committed in the first instance and to conserve judicial appellate resources. He noted that in the usual case, not presented here, both sides know before the dispositional hearing the likely sentence and the reasons to be advanced. As to involuntary AIDS testing, Haller held that such testing is "strictly limited" by statute and that, pursuant to California's Health and Safety Code, Sec. 120990, sub. (a), absent a statutory basis for such testing, "no person" may be involuntarily tested for AIDS. Haller concluded that AIDS tests may be ordered only under circumstances specified in the statute, all of which involve situations where theoretically HIV might have been transmitted. Haller found no evidence that any of the specified provisions applied, nor did the Attorney General so contend. Haller held that the trial court erred in ordering Khonsavanh to undergo AIDS testing. In a footnote, Haller commented without explanation that the issue is probably moot, which most likely means that Khonsavanh in fact underwent testing, but emphasized the court's intention that this holding would be instructive to the local juvenile court. _Arthur J. Levy_ N.Y. Appellate Division Rules Against AIDS Housing Organization in N.Y.C. Contract Dispute A panel of the N.Y. Appellate Division, First Department, has unanimously reversed a preliminary injunction that had barred the City of New York from interfering with the housing contracts of Housing Works, Inc., a non-profit AIDS housing organization, pending a trial of the merits of Housing Works's litigation against the City. _Housing Works, Inc. v. City of New York_, N.Y.L.J., 11/23/98, p. 28, col.3 (1st Dept.). Housing Works has been providing housing to more than 200 persons with AIDS under a "scatter site housing" program by contract with the City of New York. Under the program, Housing Works rents apartments and sublets them to homeless people with AIDS, and the City provides the funding for the rentals and supportive services. In 1996, the City undertook an audit of Housing Works due to reports about financial irregularities. The audit purportedly turned up significant problems with Housing Works' accounting systems, improper transfers of City funds from Housing Works to other organizations, and misappropriation of City funds by a Housing Works employee. After repeated audits, the City announced that it would not renew Housing Works's contracts and would reassign them to other providers of housing services for PWA's. Housing Works, a persistent and vocal critic of the Giuliani Administration, claimed that this action was retaliatory, and filed suit in New York Supreme Court. Evidently Housing Works convinced Justice Emily Jane Goodman, who has repeatedly restrained the City from terminating its contracts with Housing Works, although all of her orders have been vacated on appeal. Finally, she issued a preliminary injunction, having concluded that Housing Works was likely to prevail on its retaliation claim. The Appellate Division not only unanimously reversed, but also ordered that the case be reassigned to another trial judge. The panel concluded that the audits, if accurate, provided an independent ground for terminating the contracts regardless of the retaliation issue. Under established 1st Amendment precedents, even if it is shown that a government actor has taken action in retaliation for protected expressive activity by a government employee or contractor, the government is nonetheless privileged to act if it had a valid nondiscriminatory basis for taking the action. The Appellate Division panel concluded that this was likely the case with the Housing Works contracts, noting that the contracts were expressly terminable at will by the City and that the allegations of wrongdoing (to which Housing Works had not responded through the proper administrative review channels, according to this opinion) were sufficient to disqualify Housing Works from continuing to administer these contracts. A.S.L. N.Y. Appellate Division Partially Revives Tort Claim in Needle- Stick Injury Case In a decision announced Nov. 19, the N.Y. Appellate Division, 3rd Department, ruled that even though the plaintiff was not actually exposed to HIV in a needle-stick incident, he might nevertheless seek damages in connection with the AZT treatment to which he submitted as a result of the incident. _McLarney v. Community Health Plan_, NYLJ, 12/2/98, p.25, col.3. Daniel McLarney performed trash removal work at the defendant's dental clinic, presumably employed by a contractor. He was accidentally stuck by a needle while removing a bag of trash from a dental examining room. He reported the incident to the defendant clinic, then went to the hospital with the needle. The emergency room nurse ascertained that the needle did not contain sufficient material to test for the presence of HIV, so it was discarded. McLarney was told that he should treat the incident as if he had been exposed to HIV, and was prescribed a 6-8 week course of AZT treatment. He developed severe side effects to AZT, and discontinued the treatment before it had run its course. He never tested HIV+ and there is no evidence that the needle was used on any HIV+ patients at the dental clinic. In seeking treatment for the side effects from AZT, McLarney learned that he had a hiatal hernia, as well as an esophageal ulcer that may have been caused or exacerbated by the AZT treatment or the stress of the situation. McLarney sued for emotional distress for fear of developing AIDS, a violation of Public Health Law sec. 1389-cc, and compensation for physical injuries and derivative losses caused directly by the needlestick or the subsequent treatment. The trial court granted summary judgment to the defendant, citing the well-established New York rule that fear of AIDS claims stemming from needle-stick incidents must be dismissed in the absence of evidence of actual exposure to HIV. While affirming dismissal of the first two claims, Justice Paul Yesawich, Jr., found that the third claim for compensatory damages should be allowed. Even though emotional distress damages for fear of contracting AIDS are not recoverable under these circumstances, plaintiff had sustained an actual needle-stick injury for which treatment was prescribed and suffered actual ill effects from the treatment, therefore normal rules of tort recovery should apply if the defendant is found negligent at trial. A.S.L. N.Y. Appellate Court Terminates Parental Rights to HIV-Positive Child In a per curiam ruling issued Oct. 27, the N.Y. Appellate Division, First Department, affirmed an order by New York County Family Court Judge Leah Marks terminating the parental rights of "John J." over Atreyu Rashawn G., who is HIV+. _In re Atreyu Rashawn G._, 679 N.Y.S.2d 129. The basis for the court's finding of neglect in this case was John J.'s "substantial and repeated failure to plan for his child's future for a period of more than one year. During the relevant time period, respondent failed to avail himself of the medical training necessary to enable him to care for the HIV- positive child. . ., notwithstanding petitioner agency's diligent efforts to encourage respondent's attendance at medical training sessions scheduled to coincide and be held in conjunction with respondent's child visitation at the agency." The court also affirmed the decision to allow the child's foster mother to adopt him. "The foster parents were the only family the child had ever known, and, the surviving foster mother has cared for the child since his earliest infancy, and has become adept at administering the medical care necessary to maintain his fragile health." A.S.L. Florida Appellate Court Affirms HIV-Test Order for Criminal Defendant In _Isom v. State_, 1998 WL 830660 (Fla.App., 5th Dist., Nov. 30), David Isom, charged with various sexual offenses, sought to appeal the Brevard County Circuit Court's order that he submit to HIV testing. The District Court of Appeal denied Isom's petition for certiorari, and his request for a stay pending further appeal. Isom was charged with two counts of sexual activity with a minor by a person in custodial authority, and four counts of committing a lewd, lascivious or indecent act upon a child. Other than mentioning that in one of these counts Isom is charged with forcing or enticing the victim to masturbate him, the court does not otherwise describe the nature of the sexual activity. The state moved to require Isom to submit to HIV testing, and the trial court granted the motion. On appeal, Isom advanced three argument against the testing. First, he contended that his alleged offenses all occurred more than 18 months before the testing was sought, and that in such a case it made no sense to test him and much sense for the alleged victims to get tested. The court of appeal disagreed about the timing of the charged events, and found that the statute that authorizes testing of defendants contained no such time limit. Next, Isom argued that the trial court's order violated a prior decision of this court of appeal, which had rejected an attempt by a criminal defendant to obtain HIV testing of the alleged victim. The court noted that the prior decision was premised on the lack of statutory authority for such testing, while this case came squarely within Section 960.003 of the Florida code. Finally, Isom argued that for him to be tested posed a positive danger to his health in prison, because it is "impossible to keep many things secret in the jail," and there was no testimony showing a compelling reason why the alleged victim could not protect her health by getting tested. The court rejected this argument on the ground that the statute does not require such an evidentiary showing, and that is concerns about discrimination in prison are "purely speculative at this juncture." A.S.L. Connecticut Trial Court Refuses to Strike AIDS Phobia Claim Connecticut Superior Court Judge Pellegrino has refused to strike a claim for unintentional infliction of emotional distress based on fear of contracting AIDS, despite the failure of the plaintiff to allege actual exposure to HIV. _Crumb v. Waterbury Hospital Health Center_, 1998 WL 761683 (J.D. Waterbury, Aug. 14). Plaintiff Helen Crumb alleges that, while a patient in the defendant's hospital, she suffered a needlestick injury while being turned over in bed by a hospital staff member. The needle was apparently left in the bed or hospital linens. She asserts that as a result of this incident she developed a fear of contracting AIDS. The court's opinion makes no mention of whether the needle was found and tested for the presence of HIV. Noting that the Connecticut Supreme Court did not adopt an "actual exposure" requirement for AIDS phobia cases in _Barrett v. Danbury Hospital_, 654 A.2d 748 (1995), its most recent precedent on AIDS emotional distress, Pellegrino turned for guidance to _Montinieri v. Southern New England Telephone Co._, 398 A.2d 1180 (1979), in which that court stated that an action for unintentionally-caused emotional distress "does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact" but must include conduct by the defendant that "involved an unreasonable risk of causing emotional distress." On that basis, Pellegrino found that Crumb's allegations were sufficient to withstand the defendant's motion to strike. A.S.L. Suit Against Hospital for HIV Test Slip-Up Held Time-Barred Reversing a ruling by the New York Supreme Court, Westchester County, the Appellate Division, 2nd Department, ruled Oct. 26 that a suit by Heidi Playford against the Phelps Memorial Hospital Center on negligent failure to notify Ms. Playford of her HIV+ test result is time-barred. _Playford v. Phelps Memorial Hospital Center_, 1998 WL 789377 (Oct. 26). Playford was tested in October 1992 when she was pregnant, and was told a month later that she had tested negative. In fact, the hospital mixed up test results and Playford was HIV+, but she was not informed of this until December 1995, when she learned that both she and two of her four children, born after she was given the incorrect test report, were HIV+. She sued the hospital in December 1996. The hospital moved to dismiss on timeliness grounds, claiming that the statute of limitations for malpractice had run. Supreme Court denied the motion, holding that this was an ordinary negligence claim rather than a malpractice claim, and that the "discovery" rule, under which a claim accrues when the plaintiff discovers the necessary underlying facts, applies to this case. On appeal, the court agreed that this is an ordinary negligence claim, but noted that under New York law, the discovery rule only applies to claims of exposure to toxic substances. All other ordinary negligence claims accrue upon occurrence of the injury, not on the date of discovery. Thus, under the 3-year statute, this claim was time- barred. A.S.L. N.Y. Appellate Division Upholds Denial of Unemployment Benefits to Worker Fired for Breaching HIV Confidentiality The New York Appellate Division, 3rd Dept., has affirmed a decision by the New York Unemployment Insurance Appeal Board that denied a claim for benefits by a worker fired for breaching HIV confidentiality rules. _Matter of Guibert_, 1998 WL 762389 (Oct. 19). The claimant was employed as an AIDS program coordinator at a community health center. She was discharged for divulging information about a prospective client to a colleague who was not a co-worker in the program. Although she did not use the client's name, a third party who overheard the conversation was able to identify the client and passed the information to the client's sister, who contemplated suing the employer for this breach of confidentiality. Although an administrative law judge ruled in favor of the claimant, the Appeal Board reversed, finding that the claimant had been discharged for misconduct on the job. The court found substantial evidence in the record to support the Board's determination. A.S.L. Supreme Court to Review Military Conviction for Unsafe Sex In June 1998, Law Notes reported that the Court of Appeals for the Armed Forces enjoined the Air Force from dropping Major James T. Goldsmith from its rolls. Goldsmith was convicted of violating a "safe sex" order from a superior officer by having unprotected vaginal intercourse with two women while he was HIV+. The Air Force attempted to drop Goldsmith from its rolls relying on a new statute enacted after Goldsmith began serving his sentence. The Supreme Court has now granted the government's motion for writ of certiorari and will review the decision on double-jeopardy, ex post facto and jurisdictional grounds. _Clinton v. Goldsmith_, 1998 WL 552127, No. 98-347 (Nov. 2), granting certiorari in _Clinton v. Goldsmith_, 48 M.J. 84 (CAAF 1998). _Todd V. Lamb_ AIDS Law & Society Notes The New York Court of Appeals has agreed to review the case of _New England Mutual Life Ins. Co. v. Doe_, N.Y.L.J. at 31, col.6 (Apr. 10, 1998), in which the Appellate Division, 2nd Department, held that an incontestability clause in an insurance policy barred the insurer from canceling the policy it had sold to an HIV+ man. Granting of the motion for leave to appeal was announced on September 22. Shortly thereafter, the Appellate Division, 4th Dept., announced a similar decision in the case of _Pavata v. Paul Revere Life Ins. Co._, No. 1161. U.S. District Judge Suzanne B. Conlon ruled Dec. 2 in _Doe v. Mutual of Omaha_, No. 98 C 325 (N.D.Ill.), that HIV and AIDS- related caps on medical coverage in insurance policies violates the Americans With Disabilities Act, according to a press release from Lambda Legal Defense and Education Fund, which represents the plaintiffs along with the AIDS Legal Council of Chicago. The text of the opinion was not available as we went to press. Full details next month. A state court jury in Lafayette, Louisiana, convicted Dr. Richard Schmidt of attempted second-degree murder on Oct. 23 for intentionally injecting his former lover, Janice Trahan Allen, with HIV-infected blood on Aug. 4, 1994. DNA analysis of the HIV strain that now infects Allen showed that she was infected with the same strain that had infected a hepatitis patient from whom Schmidt alleged drew blood. At the time, Allen thought that Schmidt was giving her a vitamin B-12 injection to combat chronic fatigue syndrome. _New Orleans Times Picayune_, Oct. 24. According to _Science_ magazine (No. 282: 851-852, Oct. 30, 1998), this was "the first time that a DNA analysis of HIV strains was used in a criminal court in the United States." The California Supreme Court has voted to review the decision in _Galanty v. Paul Revere Life Insurance Co., 66 Cal.App.4th 15, 77 Cal.Rptr.2d 589_ (Cal. Ct. App. Aug. 17, 1998), review granted, Nov. 4, 1998, in which the 2nd district court of appeal allowed the defendant insurer to escape coverage under a disability insurance policy sold in 1989 to a man who had tested HIV+ in 1987 but had not disclosed this fact on his insurance application. The lower court accepted the argument that an HIV+ person has a pre-existing condition, even when the HIV+ person has not been under medical treatment for that condition at the time the insurance policy goes into effect. (The court of appeal relied on the Supreme Court's finding in _Bragdon v. Abbott_ that HIV infection constitutes an impairment from the moment of infection.) The insured was diagnosed with AIDS in 1994 and made a claim for benefits, well after the 2-year contestability period in the policy had expired. Jon Davidson of Lambda Legal Defense & Education Fund and former Lambda attorney Mary Newcombe represent appellant Galanty. _San Francisco Recorder_, Nov. 5. The _Times of India_ reported Nov. 17 that the Indian Supreme Court had ruled against a claim that a hospital violated the rights of an HIV+ man by revealing his status to the family of his fiance, thus preventing his marriage. "If a person suffering from the dreadful disease AIDS, knowingly marries a woman and thereby transmits infection to that woman, he would be guilty of offenses under Section 269 (negligent act likely to spread infection of disease dangerous to life) and Section 270 (malignant act likely to spread infection of disease dangerous to life) of the Indian Penal Code," said the court, ignoring the possibility of barrier contraceptives. These two penal code sections have the effect of imposing a duty on an HIV+ person to refrain from marrying, and imposing on the hospital a duty to notify the infected person's prospective marital partner. The court ended its decision by stating that people with AIDS "deserve full sympathy. They are entitled to respect as human beings. They have to have the right to avocation. Government jobs or services cannot be denied to them as has been laid down in some American decisions." A.S.L. PUBLICATIONS NOTED LESBIAN & GAY & RELATED LEGAL ISSUES: Auslander, Leora, _Do Women's + Feminist + Men's + Lesbian and Gay + Queer Studies = Gender Studies?_, 9 Differences No. 3, 1 (Fall 1997). Becker, Mary, _The Sixties Shift to Formal Equality and the Courts: An Argument for Pragmatism and Politics_, 40 Wm. & Mary L. Rev. 209 (Oct. 1998). Blair, Anita K., _Constitutional Equal Protection, Strict Scrutiny and the Politics of Marriage Law_, 47 Cath. U. L. Rev. 1231 (Summer 1998). Campbell, Angus, and Kenneth Norrie, _Homosexual Rights in_ Romer v. Evans_: Animus Averted_, 27 Anglo-Amer. L. Rev. 285 (July-Sept. 1998). Cicchino, Peter M., _Reason and the Rule of Law: Should Bare Assertions of "Public Morality" Qualify as Legitimate Government Interests for the Purposes of Equal Protection Review?_, 87 Georgetown L. J. 139 (Oct. 1998). Collett, Teresa Stanton, _Recognizing Same-Sex Marriage: Asking for the Impossible?_, 47 Cath. U. L. Rev. 1245 (Summer 1998). Culhane, John, _Review of Sexual Orientation and Human Rights_, 16 Wis. Int'l L.J. 579 (Summer 1998). DeLaet, Debra L., _Don't Ask, Don't Tell: Where is the Protection Against Sexual Orientation Discrimination in International Human Rights Law?_, 7 L. & Sexuality 31 (1997). Demas, Jeff, _Seven Dirty Words: Did They Help Define Indecency?_, 20 Communications & L. 39 (Sept. 1998). Fahringer, Herald Price, _Zoning Out Free Expression: An Analysis of New York City's Adult Zoning Resolution_, 46 Buff. L. Rev. 403 (Spring 1998). Felder, Myrna, _A Nonbiological Father and Equitable Estoppel_, NYLJ, 11/13/98, p.3, col. 1 (discussion of _Maby H. v. Joseph H._). Finnis, John, _The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and Historical Observations, 42 Am. J. Juris. 97 (1997) (Forum: Sexual Morality and the Possibility of "Same-Sex Marriage"). Fredericks, Albert, _Adult Use Zoning: New York City's Journey on the Well-Travelled Road From Suppression to Regulation of Sexually Oriented Expression_, 46 Buff. L. Rev. 433 (Spring 1998). Hirsch, H.N., _Levels of Scrutiny, the First Amendment, and Gay Rights_, 7 L. & Sexuality 87 (1997). Iglesias, Elizabeth M., & Francisco Valdes, _Religion, Gender, Sexuality, Race and Class in Coalitional Theory: A Critical and Self-Critical Analysis of LatCrit Social Justice Agendas_, 19 Chicano-Latino L. Rev. 503 (Spring 1998). Johnson, Monica K., and Jennifer K. Robbennolt, _Using Social Science to Inform the Law of Intestacy: The Case of Unmarried Committed Partners_, 22 L. & Human Behavior 479 (Oct. 1998). Jones, Logan M., _Regulating Child Pornography on the Internet -- The Implications of Article 34 of the United Nations Convention on the Rights of the Child_, 6 Int'l J. Children's Rts. 55 (1998). Koppelman, Andrew, _Is Marriage Inherently Heterosexual?_, 42 Am. J. Juris. 51 (1997) (Forum: Sexual Morality and the Possibility of "Same-Sex Marriage"). Kubasek, Nancy K., Kara Jennings, and Shannon T. Browne, _Fashioning a Tolerable Domestic Partners Statute in an Environment Hostile to Same-Sex Marriages_, 7 L. & Sexuality 55 (1997). Latham, Melanie, _Regulating the New Reproductive Technologies: A Cross-Channel Comparison_, 3 Med. L. Int'l 89 (1998). Lee, Patrick, and Robert P. George, _What Sex Can Be: Self- Alienation, Illusion, or One-Flesh Union_, 42 Am. J. Juris. 135 (Forum: Sexual Morality and the Possibility of "Same-Sex Marriage"). Lemin, Jae, _"To Know or Not to Know?": The Privacy Law Implications of_ The 1996 Paedophile and Sex Offender Index, 28 Victoria U. of Wellington L. Rev. 415 (May 1998) (New Zealand). Lessig, Lawrence, _What Things Regulate Speech: CDA 2.0 vs. Filtering_, 38 Jurimetrics 629 (Summer 1998). Little, Margaret Hillyard, _Questioning the Limitations of Legal Reform (A Review of Legal Inversions: Lesbians, Gay Men, and the Politics of Law, by Didi Herman and Carl Stychin, eds.)_, 4 Rev. of Constitutional Studies 379 (1998). Lubin, Peter, & Dwight Duncan, _Following the Footnote or the Advocate as Historian of Same-Sex Marriage_, 47 Cath. U. L. Rev. 1271 (Summer 1998). Massaro, Roni M., _Reviving Hugo Black? The Court's "Jot for Jot" Account of Substantive Due Process_, 73 N.Y.U. L. Rev. 1086 (Oct. 1998). McCarthy, Martha M., _Students as Victims of Sexual Harassment: The Evolving Law_, 27 J. L. & Educ. 401 (July 1998). McGhee, Derek, _Looking and Acting the Part: Gays in the Armed Forces -- A Case of Passing Masculinity_, 6 Feminist Legal Studies 205 (1998). Mertus, Julie, _Human Rights of Women in Central and Eastern Europe_, 6 Am. U. J. Gender & L. 369 (Spring 1998). O'Neil, Robert M., _Free Speech on the Internet: Beyond "Indecency"_, 38 Jurimetrics 617 (Summer 1998). Perry, Michael J., _Liberal Democracy and Religious Morality_, 48 DePaul L. Rev. 1 (Fall 1998). Regan, Milton C., Jr., _Same-Sex Marriage and Communal Dialogue_, 8 Responsive Community No. 4, 56 (Fall 1998). Schroeder, Theodore A., _Fables of the Deconstruction: The Practical Failures of Gay and Lesbian Theory in the Realm of Employment Discrimination_, 6 Am. U. J. Gender & L. 333 (Spring 1998). Simon, Glenn E., _Cyberporn and Censorship: Constitutional Barriers to Preventing Access to Internet Pornography by Minors_, 88 J. Crim. L. & Criminology 1015 (Spring 1998). Smith, Steven D., _Natural Law and Contemporary Moral Thought: A Guide from the Perplexed_, 42 Am. J. Juris. 299 (1997) (review essay). Strasser, Mark, _Natural Law and Same-Sex Marriage_, 48 DePaul L. Rev. 51 (Fall 1998). Sullivan, Kathleen M., _Discrimination, Distribution, and City Regulation of Speech_, 25 Hastings Const. L. Q. 209 (Winter 1998). Terrasa, Gabriel A., _Fitting a Square Peg Into a Round Hole: "Same Sex" Sexual Harassment and the "Because of . . . Sex" Requirement in Hostile Environment Claims_, 67 Revista Juridica Univ. de Puerto Rico 163 (1998). Thompson-Schneider, Donna, _The Arc of History: Or, the Resurrection of Feminism's Sameness/Difference Dichotomy in the Gay and Lesbian Marriage Debate_, 7 L. & Sexuality 1 (1997). Tunick, David C., _Computers and the Criminal Law: Obscenity in Cyberspace -- What Is the Community Standard?_, 34 Crim. L. Bull. 448 (Sept.-Oct. 1998). Ward, Kenneth D., _Free Speech and the Development of Liberal Virtues: An Examination of the Controversies Involving Flag-Burning and Hate Speech_, 52 U. Miami L. Rev. 733 (April 1998). Wardle, Lynn D., _Legal Claims for Same-Sex Marriage: Efforts to Legitimate a Retreat from Marriage by Redefining Marriage_, 39 S. Tex. L. Rev. 735 (June 1998)(staunch opponent of same-sex marriage in another go-round on his favorite topic). Wriggins, Jennifer, _Maine's "Act to Protect Traditional Marriage and Prohibit Same-Sex Marriages": Questions of Constitutionality Under State and Federal Law_, 50 Maine L. Rev. 345 (1998). _Student Notes & Comments:_ Blais, Mark, _The Department of Education Clarifies Its Position Concerning Peer Sexual Harassment: But Will Federal Courts Take Notice?_, 47 Cath. U. L. Rev. 1363 (Summer 1998). Bowerman, Kristie, Pitcherskaia v. I.N.S._: The Ninth Circuit Attempts to Cure the Definition of Persecution_, 7 L. & Sexuality 101 (1997). Carpenter, Alison G., _Belgium, Germany, England, Denmark and the United States: The Implementation of Registration and Castration Laws as Protection Against Habitual Sex Offenders_, 16 Dickinson J. Int'l L. 435 (Winter 1998). Colangelo-Bryan, Joshua, _Discrimination Down Under: Lessons From the Australian Experience in Prohibiting Employment Discrimination on the Basis of Sexual Orientation_, 7 Pacific Rim L. & Pol. J. 377 (March 1998). Epstein, Linda B., _What is a Gender Norm and Why Should We Care? Implementing a New Theory in Sexual Harassment Law_, 51 Stanford L. Rev. 161 (Nov. 1998). Fischer, Andrea L., _Florida's Community Notification of Sex Offenders on the Internet: The Disregard of Constitutional Protections for Sex Offenders_, 45 Clev. St. L. Rev. 505 1997). Gewirtzman, Doni, _"Make Your Own Kind of Music": Queer Student Groups and the First Amendment_, 86 Calif. L. Rev. 1131 (Oct. 1998). Hughes, Lawrence Bradfield, _Can Anyone Be the Victim of a Hate Crime?_, 23 U. Dayton L. Rev. 591 (Spring 1998). Jackman, Martha, _"Giving Real Effect to Equality":_ Eldridge v. B.C. (A.G.)_ and_ Vriend v. Alberta, 4 Rev. of Constitutional Studies 352 (1998). Lund, William A., _What's in a Name? The Battle Over Ballot Titles in Oregon_, 34 Willamette L. Rev. 143 (Winter 1998). Lynd, Paul R., _Juror Sexual Orientation: The Fair Cross-Section Requirement, Privacy, Challenges for Cause, and Peremptories_, 46 U.C.L.A. L. Rev. 231 (Oct. 1998). Mason, J.K., _United Kingdom v. Europe: Current Attitudes to Transsexualism_, 2 Edinburgh L. Rev. 107 (Jan. 1998). McCreight, Kimberly, _Call For Consistency: Title VII and Same-Sex Hostile Environment Sexual Harassment_, 1 U. Pa. J. Lab. & Emp. L. 269 (Spring 1998). Melchoir, Jill A., _The Quiet Battle for the Heart of Liberty - A Victory for the Cautious_: Washington v. Glucksberg, 66 U. Cin. L. Rev. 1359 (Summer 1998). Note, Oncale v. Sundowner Offshore Services Inc._ and the Future of Title VII Sexual Harassment Jurisprudence_, 39 Bos. Coll. L. Rev. 937 (July 1998). Note, _Shareholder Proposal Rule: Cracker Barrel in Light of_ Texaco, 39 Bos. Coll. L. Rev. 965 (July 1998). Pryor, Thomas Earl, _Does Arkansas Code Section 5-14-122 Violate Arkansas's Constitutional Guarantee of Equal Protection?_, 51 Ark. L. Rev. 521 (1998) (Section 5-14-122 is the sodomy law). Strasser, Mark, Baker_ and Some Recipes for Disaster: On DOMA, Covenant Marriages, and Full Faith and Credit Jurisprudence_, 64 Brooklyn L. Rev. 307 (1998). Stratton, Traci Shallbetter, _No More Messing Around: Substantive Due Process Challenges to State Laws Prohibiting Fornication_, 73 Wash. L. Rev. 767 (July 1998). Yoder, J. Dwight, _Justice of Injustice for the Poor?: A Look at the Constitutionality of Congressional Restrictions on Legal Services_, 6 Wm. & Mary Bill of Rts. J. 827 (Summer 1998). = _Specially Noted:_ 47 Catholic Univ. L. Rev. No. 4 (Summer 1998) contains a symposium titled _Law and the Politics of Marriage: Loving v. Virginia After 30 Years_. The articles all contain commentary on the same-sex marriage controversy, and are cited above. The November 1998 Supreme Court issue of the _Harvard Law Review_ includes a student comment on _Oncale v. Sundowner Offshore Services, Inc._, 112 Harv. L. Rev. 325. 20 Western New England L. Rev. No. 1 (1998) contains a symposium devoted to the question whether lawyers should be prohibited from discriminating in the selection of clients. The symposium was sparked by a ruling of the Massachusetts Commission Against Discrimination, finding unlawful sex discrimination by a woman whose practice consists primarily of representing women in divorce actions who had turned down a male client. The MCAD took the position that a lawyer's decisions on which clients to take come within the MCAD's public accommodations jurisdiction. The symposiasts almost uniformly criticize the decision as wrong, and argue that lawyers should be allowed to discriminate. Some make 1st Amendment arguments in support of the point, and one argues an analogy with the case of _Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston_, 515 U.S. 557 (1995). 29 Columbia Hum. Rts. L. Rev. No. 2 includes a symposium titled _Shifting Grounds for Asylum: Female Genital Surgery and Sexual Orientation_. The Sexual Orientation panel discussion is reported at pages 496-532. 37 Int'l Legal Materials No. 5, 1101-1103 (Sept. 1998), contains a summary and text of decision for _National Coalition for Gay and Lesbian Equality et al. v. The Minister of Justice et al._, the decision of the High Court of South Africa (Witwatersrand Local Division), concerning the South African sodomy law. (This is not the decision reported last month in _Law Notes_, but rather the earlier lower court decision in the same case.) Panel Publishers, which is the current name of the company that has taken over John Wiley & Sons, has published a 1998 supplement to Alba Conte's treatise, _Sexual Orientation and Legal Rights_. The update is sent automatically to those who purchased the treatise from the publisher. Those interested in purchasing the update should contact the publisher at 1-800-234-1660. The University of California Press has issued a paperback edition of _Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade_, by David J. Garrow. This 1994 book provides an extraordinarily detailed review of the development of sexual privacy law by the Supreme Court, and incidentally provides a good discussion of the implications for lesbian and gay law, including a detailed consideration of _Bowers v. Hardwick_. For the new paperback edition, Garrow has written an Epilogue that updates the discussion through mid-1998, including some recent sodomy law decisions and the Supreme Court's decision in _Romer v. Evans_ (1996), which he sees as a virtual overruling of _Hardwick_. AIDS & RELATED LEGAL ISSUES: Harris, Erica Worth, _Controlled Impairments Under the Americans with Disabilities Act: A Search for the Meaning of Disability_, 73 Wash. L. Rev. 575 (July 1998). Mish, Risa M., _"Regarded as Disabled" Claims Under the ADA: Safety Net or Catch-All?_, 1 U. Pa. J. Lab. & Emp. L. 159 (Spring 1998). Ratner, Michael, _How We Closed the Guantanamo HIV Camp: The Intersection of Politics and Litigation_, 11 Harv. Hum. Rts. J. 187 (Spring 1998). Rozmus, Kelly C., _Representing Families Affected by HIV/AIDS: How the Proposed Federal Standby Guardianship Act Facilitates Future Planning in the Best Interests of the Child and Family_, 6 Am. U. J. Gender & L. 299 (Spring 1998). _Student Notes & Comments:_ Luxenberg, Dave, _Why Viatical Settlements Constitute Investment Contracts Within the Meaning of the 1933 and 1934 Securities Acts_, 34 Willamette L. Rev. 357 (Spring 1998). Satchwill, Allison A., _Asymptomatic HIV and the Americans With Disabilities Act:_ Runnebaum v. Nationsbank of Maryland, N.A., 66 U. Cin. L. Rev. 1387 (Summer 1998). Schneider, Theresa A., _Stretching the Limits of the ADA: Asymptomatic HIV-Positive Status as a Disability in_ Bragdon v. Abbott_, 118 S.Ct. 2196 (1998)_, 77 Neb. L. Rev. 206 (1998). _Specially Noted:_ Kluwer Law International has published _Legal Responses to AIDS in Comparative Perspective: Balancing Individual Rights and Societal Interests_. Edited by Prof. Stanislaw Frankowski of St. Louis University School of Law, the book collects ten essays on legal responses to HIV/AIDS written by scholars from five continents. The countries covered are: United States, Canada, South Africa, Australia, India, Japan, Netherlands, Hungary, Poland, and Argentina. The U.S. essay is by the editor of Lesbian/Gay Law Notes, Arthur Leonard. ISBN 90-411-1037-2. The November 1998 Supreme Court issue of the _Harvard Law Review_ includes a student comment on _Bragdon v. Abbott_, 112 Harv. L. Rev. 283. Panel Publishers, which is the current name of the company that has taken over John Wiley & Sons, has published a 1998 supplement to David Webber's treatise, _AIDS and the Law_ (3rd ed.). The update is sent automatically to those who purchased the treatise from the publisher. Those interested in purchasing the update should contact the publisher at 1-800-234-1660. 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.