LESBIAN/GAY LAW NOTES
ISSN 8755-9021    February 1999

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

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CONNECTICUT HIGH COURT REJECTS SECOND-PARENT ADOPTION; REFUSES TO
DECIDE CONSTITUTIONAL CLAIMS

Bucking the recent trend in neighboring states, the Connecticut
Supreme Court voted 6-1 to grant the state's appeal in the case of
a lesbian couple seeking to effect a second-parent adoption by one
of the women of the son they are raising together.  The opinion by
Chief Justice Robert Callahan in _In re the Adoption of Baby Z._,
247 Conn. 474, 1999 WL 33449 (Jan. 26), drew an angry, impassioned
dissenting opinion by Justice Robert Berdon, charging the court
with trampling on "the constitutional rights of gay and lesbian
parents -- who are not permitted to marry under Connecticut law --
and heterosexual parents who elect to remain unmarried."  Justice
Berdon noted that courts in neighboring Vermont, Massachusetts, New
York and New Jersey had all approved such adoptions. 

The petitioners in this case, called Malinda and Anne in court
papers, have lived together as partners for more than ten years and
planned together to have a child through donor insemination of
Anne.  Baby Z was born in 1992, and the women have raised him
together as co-parents.  He calls Malinda "Mama" and has a strong
relationship with Malinda's father, whom he calls "Grandpa."  When
the women filed to have Malinda adopt Baby Z with Anne's approval,
everybody who examined their household and relationships, including
the state supreme court, concluded that adoption would be in the
child's best interest.      

The problem, as always in these cases, is that the adoption
statutes in Connecticut, which date from an earlier time (most
recently revised in the 1970s), were drafted by legislators who
were not thinking about the possibilities of second-parent
adoptions.  Thus, the laws incorporate a standard heterosexual
marriage model.  In Connecticut, this takes the form of a statute
describing three models for adoption.  Under the first model, the
parental rights of the biological parents are terminated and a
"statutory parent" (in essence, a legal guardian) is appointed for
the child.  The statutory parent then gives the child up for
adoption to a person or couple approved by the courts.  Under the
second model, a single parent who marries can give the child for
adoption to his or her spouse.  Under the third model, a legal
guardian may give a child up for adoption to a blood relative of
the child.  The statute also sets up an Adoption Review Board,
which has the power to waive the requirement under the first model
that a "statutory parent" give the child for adoption.

When Malinda and Anne sought to have Malinda adopt Baby Z, the
Probate Court judge determined that they did not fit under any of
these models, but sent the case to the Adoption Review Board with
the idea that the Board, if it determined the adoption to be in the
best interest of Baby Z, could waive the requirement for a
statutory parent and recommend approval of the adoption.  However,
the Board decided that it did not have jurisdiction to waive the
statutory parent requirements in this case and refused to do so.  
When Malinda and Anne appealed to the Superior Court, that court
determined that the adoption would be in the best interest of Baby
Z and that the Board did have authority to waive the statutory
requirements, so the case should be sent back to the Board for its
reconsideration.   At this point, through some procedural
maneuvers, the case went directly up to the state supreme court.

Chief Justice Callahan's decision is most notable for its rigid,
technical formality.  Baby Z is largely absent from the opinion,
which undertakes no discussion of what would be in his best
interest, but rather focuses at excruciating length on the
formalities of Connecticut adoption law.  Callahan concluded that
regardless of what would be best for Baby Z, the legislature did
not provide for second-parent adoption, and that the Board's
authority to waive having a placement made by the "statutory
parent" was very narrow.  

"We recognize that all of the child care experts involved in this
case have concluded that the proposed adoption would be in Baby
Z.'s best interest," wrote Callahan.  "Because of the statutory
nature of our adoption system, however, policy determinations as to
what jurisdictional limitations apply are _for the legislature, not
the judiciary,_ to make. [emphasis in original]. . . . Thus, even
thought the plaintiffs have presented a factual record that may
warrant sympathetic consideration of their adoption application,
their petition cannot transcend the jurisdictional limits of the
adoption statutes. . .  The members of our legislature, as elected
representatives of the people, have the power and responsibility to
establish the requirements for adoption in this state.  The courts
simply cannot play that role."

While claiming to be following the legislative mandate of "liberal
construction," Callahan asserted that the language of the statute
was clear and would only allow of one meaning: the Board's waiver
authority was narrowly confined to dispensing with the requirement
that the statutory parent actually determine the placement, and did
not extend to the necessity for appointment of a statutory parent
and the filing of an adoption petition by the statutory parent.

In short, the only way this adoption could take place would be for
Anne to agree to termination of her parental rights and the
appointment of a statutory parent.  Then Anne and Malinda would
have to take the risk that the statutory parent might decide to
give Baby Z for adoption to somebody else, under an adoption code
that authorizes the courts to consider the sexual orientation of a
prospective parent among the factors in determining whether a
placement would be in the best interest of the child.

Anne and Malinda also argued that failing to interpret the adoption
law in a way that would allow Malinda to adopt without affecting
Anne's continuing parental rights would be unconstitutional, both
as a matter of the due process rights of Anne and the equal
protection rights of both mothers.  The lower courts had not ruled
on this question, as they were consumed with the technicalities of
compliance with the statute, and the Supreme Court ducked it as
well, stating that it might be considered by the lower courts in
the next stage of this case on remand.

By contrast, Justice Berdon's dissent gives a much fuller picture
of the facts of the case, focusing on the loving household in which
Baby Z is being raised, characterized by its close family ties. 
Berdon argued that what the court was overlooking is the mandate,
written into the statute, that the court should liberally interpret
the statute to advance the best interest of the child.  Berdon
argued that the court's rigid interpretation of the Board's waiver
authority and insistence that Anne must agree to give up her
parental rights if she wants the possibility of a subsequent joint
adoption with Malinda violates this mandate.  "A reasonable
construction of the statutory scheme governing adoptions in the
state of Connecticut does not support this contention," wrote
Bredon.  "Moreover, and of fundamental importance, the best
interests and well-being of Baby Z. require that Malinda adopt him
so that the three -- Malinda, Anne and Baby Z. -- can live together
as a family unit with legal ties."

Berdon points out that the legislative history of this statutory
scheme shows that what the legislature was concerned about was
preventing "black market" adoptions, transactions in which babies
are sold to the highest bidder at a time when potential parents
were facing a shortage of healthy babies available for adoption (at
least in part due to the then-recent U.S. Supreme Court decision
legalizing abortion).  The complicated statutory parent procedure
was intended to prevent this black market from operating in
Connecticut.  Clearly, argued Berdon, the Board's exercise of its
waiver authority in cases like _Baby Z_ would be totally consistent
with this legislative history.  

More importantly, however, Berdon argued that Malinda could qualify
under the second adoption model, as the spouse of Anne.  The court
gave short shrift to this argument, insisting that
spouse must mean legally married husband or wife.  But Berdon
argued that the legislative mandate for liberal construction
extended to all the provisions of the statute, and pointed out that
in actuality Anne and Malinda have a spousal relationship,
certainly from the viewpoint of Baby Z, who considers both women to
be his parents.    

"As a term of art, `spouse' is the label applied to the person to
whom one is legally married.  It would be foolish, however, to
suggest that this definition of the word exhausts the rich mine of
its many meanings. . .  [The] word `spouse' takes on a more
expansive meaning in our changing times.  In terms of the ways in
which people structure their lives and conduct their interpersonal
relationships, your spouse is the person with whom you vow to share
your life and raise your family.  Although Malinda does not
technically qualify as Anne's spouse under the former definition,
it is clear that she is in fact Anne's spouse under the latter
definition. . . Malinda is in fact Anne's spouse in every sense but
the narrow one that she and Anne are unable to procure a marriage
certificate. . . The fact that Baby Z. calls Malinda `Mama'
strongly suggests that he regards Malinda as his mother and,
correlatively, as Anne's spouse."

Berdon also argued that refusing to let Malinda adopted Baby Z
violated both due process and equal protection, and that there was
no need for the court to leave this issue for consideration by the
lower courts.  Berdon argued that there was no legitimate interest
that the state could advance by denying Baby Z the opportunity to
be legally related to both of the women who are raising him, in
light of the fact that every professional concerned in this case
had agreed that adoption was in the child's best interest.  

"The robust protection of family integrity recognized by both this
court and the United States Supreme court establishes that the
relationships between Baby Z. and his two mothers is of
constitutional magnitude," Berdon asserted.  "For this reason,
substantive due process embraces Anne and Malinda's desire to raise
Baby Z. in a family environment that is most likely to promote his
best interests.  More specifically, it embraces their desire to
raise their son with two coequal mothers, each of whom is fully
recognized in the eyes of the law.  It also precludes the state
from conditioning such an arrangement upon Anne's willingness to
terminate all of her constitutionally protected rights to her
biological son."  

As to the equal protection claim, wrote Bredon, "It is beyond
question that the majority's interpretation of the statutory scheme
inflicts an `illogical and unjust' punishment on children like Baby
Z. for the sole reason that their parents are not married. . . .
Requiring Anne to terminate her parental rights to Baby Z. before
permitting the proposed adoption constitutes a denial of equal
protection because it discriminates against an unmarried biological
parent without any grounds whatsoever, let alone the requisite
reasonable grounds. . . . Neither the statute nor the majority has
advanced any justification for visiting a grave sanction upon an
unmarried parent such as Anne, and for good reason: the
classification is wholly irrational."

Malinda and Anne, who are represented by Jane Rothchild, a
Connecticut Civil Liberties Union cooperating attorney, and
Jennifer Middleton for the ACLU Lesbian and Gay Rights Project and
Philip Tegeler, legal director of the Connecticut CLU, will now
pursue their constitutional arguments before the Superior Court
sitting as a court of probate, to which the case was remanded. 
A.S.L.

LESBIAN/GAY LEGAL NEWS 

Washington Appeals Court Upholds Discharge of Gay Man; Local
Ordinances Not Sufficient to Defeat State's Employment-At-Will
Doctrine

The Court of Appeals of Washington has rejected a gay man's
challenge to the state's employment-at-will doctrine, and has ruled
that state public policy does not prohibit private employers from
firing an employee based solely on her or his sexual orientation. 
_Webb v. Puget Sound Broadcasting Co._, 1998 WL 898788 (Dec. 28). 
The court concluded that Seattle and King County's local
ordinances, which prohibit employment discrimination based on
sexual orientation, are insufficient to establish a "public policy"
exception to Washington's employment-at-will doctrine.

Webb's complaint alleged that in October of 1994, he worked as an
on-air personality at KWRM, a station owned by defendant Puget
Sound Broadcasting.  (The decision does not clarify whether KWRM is
a radio or television station.)  Puget Sound began negotiating the
sale of the station with Sandusky Newspapers. Sandusky was Webb's
former employer, and knew that Webb was gay.  The negotiations
between Puget Sound and Sundusky included discussions about Webb. 
After sale negotiations began between the companies, Puget Sound
accused Webb of airing an over-abundance (up to 60%) of shows with
"gay themes."  Webb said that at most, only 10% of his shows had
"gay themes."  Soon afterwards, Puget fired Webb.  Sandusky agreed
to purchase KWRM two days after Webb was fired.  

In April of 1997, Webb sued Puget Sound Broadcasting for wrongful
discharge.  Webb alleged that he was fired because of his sexual
orientation, in violation of public policy. The trial court granted
Puget's motion to dismiss, concluding that "there is no clearly
articulated public policy sufficient to create an exception to the
employment at will doctrine in instances where homosexuals are
terminated from employment because of their sexual orientation." 
Webb appealed, and in an unpublished opinion written by Judge
Kennedy, the Washington Court of Appeals affirmed.

According to the appellate court, Washington's employment-at-will
doctrine permits an employer to discharge employees "for no cause,
good cause or even cause morally wrong without fear of liability." 
One exception to the doctrine is based on Washington's Law Against
Discrimination, which prohibits discriminatory discharge on the
basis of age, sex, marital status, race, creed, color, national
origin, or disability. However, Washington's LAw Against
Discrimination does not protect against discrimination on the basis
of sexual orientation.  (The court rejected Webb's argument that
the Law Against Discrimination violated his rights under the equal
protection clauses of the state and federal constitution for
failing to protect lesbian and gay men. According to the court, the
equal protection clauses only address "invidious discrimination"
and not discrimination by omission.)

Another exception to the at-will doctrine concerns discharges which
"contravene a clear mandate of public policy."  The court noted
that public policy exceptions have generally arisen in four
contexts in Washington: where employees are fired for refusing to
commit an illegal act; for performing a public duty or obligation
(like serving jury duty); for exercising a legal right or
privilege, like filing a workers compensation claim; and in
retaliation for reporting employer misconduct.

Webb argued that since Seattle's Municipal Code (sec. 4.04) and the
King County Code (sec. 12.18.010) both declare it to be against
their respective public policies to discriminate against
individuals based on their sexual orientation, his discharge fit
within the public policy exception to the at-will doctrine.  The
court disagreed, concluding that "these local ordinances are not
sufficient to establish a clear mandate of statewide public policy"
since they do not address the citizens of Washington State
collectively.  In so holding, the Washington appellate court
aligned itself with the decision in _Greenwood v. Taft, Stettinius
& Hollister_, 663 N.E.2d 1030 (Oh.App. 1995), rev. denied, 662
N.E.2d 22 (1996), in which an Ohio appellate court considered the
same issue.

The court also rejected Webb's argument that the U.S. Supreme
Court's decision in _Romer v. Evans_ impacted on Washington's
public policy.  The court noted that _Romer_ only addressed state
action, and not discrimination perpetrated by private employers.
_Ian Chesir-Teran_ 

Maryland Officials Agree to Limit Application of Sodomy Laws

The State of Maryland has agreed not to appeal an Oct. 15, 1998,
ruling by Baltimore Circuit Court Judge Richard T. Rombro in
_Williams v. Glendening_, which held that Annotated Code of
Maryland, art. 27, sec. 554, the state law criminalizing oral sex,
may not be used to prosecute private consensual sex between adults
of the same sex. In addition, the state has agreed that the same
interpretation should apply to the law on anal sex, sec. 553, and
this agreement was made official on Jan. 19 when Judge Rombro
signed a judgment declaring that neither of these laws applies to
"consensual, non-commercial, private sexual activity."  _Williams
v. State of Maryland_, No. 98036031/CC-1059 (Md. Cir. Ct.,
Baltimore City).  Furthermore, Rombro issued an injunction
forbidding the state or state agents from enforcing these laws "in
cases of consensual, non-commercial, private sexual activity."    

Rombro's decisions were based on _Schochet v. State_, 580 A.2d  176
(Md. 1990), in which the court ruled that rather than considering
whether the oral sex law was unconstitutional, it would interpret
that law as not applying to private, consensual sex between adults
of the opposite sex.  In that case, the male defendant was
initially charged with forcing the female complainant to have oral
sex with him, but ultimately was convicted of consensual oral sex. 
On appeal, he challenged his conviction as violating the
constitutional right of privacy. Courts that want to avoid reaching
such constitutional questions may interpret a statute narrowly to
avoid having to decide the constitutional question, as the Maryland
court did in that case.

In this new challenge to the oral sex law, brought by the ACLU on
behalf of a group of lesbian and gay Marylanders, the plaintiffs
charged that penalizing them for conduct in which heterosexuals can
freely engage violates the constitutional guarantee of equal
protection of the laws.  Rather than having to decide this
constitutional question, Rombro decided to narrow the
interpretation of the law further.

This is apparently the first time that a state sodomy law has been
invalidated in the course of litigation by agreement of the
parties.  In some prior cases, trial court decisions invalidating
sodomy laws were not appealed, but because of the nature of the
case, the decisions had not precedential authority outside of the
counties in which they were decided.  Although this does not mean
that the law will be taken off the books, the court's formal
judgment will be noted in the commentary printed in future editions
of the Maryland statutes.  Furthermore, Rombro's judgment names the
state as the defendant rather than Governor Parris Glendening, who
was the named defendant in last October's judgment, so the court's
order binds the state government as a whole rather than just
binding the governor.

The governor's commitment to goes beyond agreeing to the settlement
of this case.  In his inaugural address for his new term on Jan.
20, he stated that sexual orientation should be among the grounds
of prohibited discrimination, and in a press release the same day
announced he would introduce legislation to ban sexual orientation
discrimination.  State Delegate Sheila E. Hixson of Silver Spring
has been seeking co-sponsors for an Anti-Discrimination Act that
would ban discirmination in employment, housing and public
accommodations on the basis of sexual orientation.  Her proposal
includes a broad definition of sexual orientation that might also
protect transvestites and transgendered persons under the following
rubric: "having or being perceived as having an identity,
expression or physical characteristic not traditionally associated
with an individual's biological sex or sex at birth."  The governor
has not yet committed to introducing Hixson's bill.  (This
paragraph based on the Jan. 22 edition of BNA's _Daily Labor
Report_.)

Michael Adams, the ACLU Lesbian and Gay Rights Project staff
attorney who worked on the case, said, "This is the first time a
state has voluntarily given up any part of a sodomy law.  The Court
has already crippled these laws in its earlier ruling and now it
has finally put them out to pasture."  The ACLU of Maryland
provided local counsel and participated in negotiating the
settlement.  According to the ACLU, moving Maryland into the "free
state" column for gay people means that there are only 18 state
sodomy laws and the Puerto Rico sodomy law left in effect in the
U.S.  Of those state laws, 13 target all sodomy regardless of the
genders of the participants, while five target only same-sex
conduct. 

Legal challenges to sodomy laws are pending before the courts in
Louisiana, Arkansas, Puerto Rico, and Texas.  Last year, the
Georgia Supreme Court invalidated that state's felony sodomy law,
which had previously been upheld by the U.S. Supreme Court in 1986. 
Noting the progress toward elimination of U.S. sodomy laws, Adams
commented, "Today's settlement brings us one step closer to the day
when the government will no longer have the right to police
anyone's bedrooms anywhere in the United States, and that day is
surely coming."  A.S.L.

11th Circuit Holds Title VII Does Not Bar Employer From Discharging
Employee's Former Lesbian Lover to Keep Employee From Quitting

In _Llampallas v. Mini-Circuits, Lab, Inc_, 1998 WL 901716
(December 28), the U.S. Court of Appeals for the 11th Circuit held
that a company does not discriminate on the basis of sex in
violation of Title VII when it fires one woman in order to keep her
ex-lover, also a woman, from quitting.  Circuit Judge Tjoflat,
writing for the three-judge panel, also dismissed Llampallas'
claims against the Palmetto Extra Condominium Association because
the court found that she was never an "employee" of Palmetto, and
Palmetto could not be held liable along with Mini-Circuits under
the "single employer" theory.

Elba Llampallas and Marta Blanch were partners from 1977 until
1990, moving together from New Jersey to Florida, buying a house
together, opening a joint bank account together and working with
the same company, Mini-Circuits Inc.  Blanch worked as General
Manager at the Hialeah facility and was the supervisor of
Llampallas, who worked as an assembler (the lowest ranking
position) at the same plant.  Harvey Kaylie, President of
Mini-Circuits, was Blanch's supervisor, and shared a professional
and social relationship with the two women.  Both women
consistently received substantial raises and bonuses for their job
performance, and there was no criticism about either woman in their
employment records.

In the fall of 1990, Blanch and Llampallas ended their sexual
relationship and Blanch moved out of the house.  Blanch began to
threaten Llampallas, telling her that if she did not resume their
sexual relationship, Blanch would have her fired.  Other
Mini-Circuits employees witnessed these threats, which occurred on
several occasions, even before the dissolution of the relationship. 
Finally, on May 23, 1991, after a particularly bitter confrontation
with Llampallas, Blanch called Kaylie in New York and told him she
was resigning because she could no longer work with Llampallas. 
Kaylie told Blanch not resign, and then called Llampallas and
instructed her to come up to New York to meet with him.  

Kaylie and Llampallas met in New York on May 24, 1991, and
discussed Llampallas' work performance.  Kaylie suggested that
Llampallas manage a different facility for Mini-Circuits.  During
this conversation, Llampallas told Kaylie that she and Blanch were
having a "personal problem."  After this meeting, Kaylie placed
Llampallas on suspension with full pay.  Originally he said that he
was considering Llampallas for a new position in a new
Mini-Circuits office.  On November 8, 1991, however, Kaylie
informed Llampallas by letter that there would be no new
Mini-Circuits facility, and terminated her employment with the
company.  

Two months later, Llampallas received another letter, signed by
Blanch on Mini-Circuit's stationery, removing Llampallas from her
position as Vice President and member of the Board of Palmetto
Extra Condominium Association.  She had served on this three-member
Board with Blanch and Kaylie.  After losing both of these
positions, Llampallas tried to obtain comparable, or even permanent
employment, elsewhere but was unsuccessful.

Llampallas brought suit against both Mini-Circuits and Palmetto on
October 19, 1993, claiming that Blanch had "conducted a campaign of
`quid pro quo sexual harassment' against her" and that
Mini-Circuits and Palmetto were strictly liable for that
harassment.  The district court found in favor of Llampallas,
concluding that Mini-Circuits was strictly liable for Blanch's
harassment because Blanch had forced Mini-Circuits to discharge
Llampallas by threatening to quit herself.  The district court also
found that Palmetto's discharge of Llampallas from her Board
position and officer duties was a direct result of her discharge
from Mini-Circuits.  As a result, Llampallas was entitled to
recover for the loss of her officer-director position at Palmetto. 
Finally, the court found that both Palmetto and Mini-Circuits were
jointly liable for Llampallas' loss of her respective positions
with the two companies because the two entities were a single
employer under Title VII.  

The 11th Circuit panel of Circuit Judges Tjoflat and Edmonson and
Senior U.S. District Judge O'Neill (E.D. Pa.), reversed the
district court on all counts.  

In considering Llampallas' Title VII claim against Mini-Circuits,
the panel began by noting that in order to succeed in her suit, a
Title VII plaintiff must establish, by a preponderance of the
evidence (1) a discriminatory animus toward her, (2) an
alteration
in the terms and conditions of her employment by the employer and
(3) a causal link between the two.  The panel found that
Llampallas failed to satisfy the third prong requirement that her
termination  was causally linked to Blanch's discriminatory
animus toward her. 

The panel emphasized that the burden rested with Llampallas to
prove that Blanch's discriminatory animus caused Kaylie to
terminate her employment at Mini-Circuits, and found that
Llampallas did not meet that burden.  

The panel reiterated the district court's finding that, when
Kaylie terminated Llampallas' employment, he did so in order to
keep Blanch from quitting.  The court considered this to be
permissible under Title VII: "Title VII does not prohibit an
employer from discharging an employee because it wishes to retain
another, presumably more valuable, employee -- unless, of course,
the desired employee is of a different sex from the plaintiff,
and the decision can be linked to a discriminatory animus towards
persons of the non-desired employee's sex.  Here, Llampallas and
Blanch are both women; thus the fact that Kaylie chose Blanch
over Llampallas cannot give rise to an ultimate inference that
Kaylie chose Blanch `because of' Llampallas' sex."  

The court found it particularly important that Blanch herself did
not fire Llampallas, although it mentioned in a footnote that she
possessed that authority to do so.

The court also rejected the "cat's paw" theory of liability; that
is, if the decisionmaker acted in accordance with the harasser's
decision without himself evaluating the employee's situation,
then the plaintiff has sufficiently satisfied the prong 3
causation requirement.  The panel found that the New York meeting
was a sufficiently independent evaluation of Llampallas'
situation to render the termination permissible: "Kaylie's
decision to suspend and discharge Llampallas was not simply a
tacit approval of Blanch's own decision to do the same."  The
court did recognize, however, that Blanch's threat to quit "was
probably part of a scheme to manipulate the company into firing
Llampallas because of her sex -- Blanch made a `fake' threat
knowing that Kaylie would choose her over Llampallas."  Yet,
somehow, the court ruled that it did not need to decide "whether
Mini-Circuits could be held liable based on Kaylie's unwitting
compliance in Blanch's manipulative plan, because such is not the
case before us."  However, the court did not explain its
understanding of the case actually before it in order to
distinguish the two.

The court ruled that the New York meeting between Kaylie and
Llampallas "broke the chain" of causation between Blanch's
harassment and Mini-Circuit's decision to terminate Llampallas'
employment.  The court found that Kaylie was not on notice of
Blanch's discriminatory animus toward Llampallas.  In another
footnote, the court dismissed the fact that Llampallas testified
that she believed Kaylie knew that she and Blanch were lovers
because he had visited their home on several occasions and "must
have seen that she and Blanch shared a bedroom."  
The court noted that Kaylie denied knowing that the two women
were
homosexual, let alone that they were involved in a sexual
relationship with each other, until Llampallas filed sexual
discrimination charges with the EEOC based on Blanch's
harassment.  
In another footnote, the court refused to accept Llampallas'
claim that her mention of personal problems with Llampallas put
Kaylie on notice of Blanch's harassment.  Kaylie insisted that
"he did not want to pry" when Llampallas mentioned the "personal
problems," and the court accepted that explanation:  "We find
that these statement, standing alone, are not nearly enough to
put Kaylie on notice that Blanch was sexually harassing
Llampallas, especially in light of the fact that Kaylie claimed
he never knew that either Blanch or Llampallas was a lesbian. 
Even in this day and age, an employer is not expected to assume
that two of his female employees have engaged in a sexual
relationship. . . [Llampallas' comment about a] personal problem,
therefore, would not have put a reasonable employer on notice
that Blanch and Llampallas were having a sexual relationship, let
alone that Blanch was harassing Llampallas."  The court suggested
that Llampallas still could have succeeded on her Title VII claim
if she had proven that Kaylie himself harbored a discriminatory
animus toward her.  But the court ruled that Llampallas had not
made this showing, and consequently had failed to satisfy prong 3
of the Title VII test.  Therefore, it reversed and remanded the
case back to the district court.  Circuit Judge Tjoflat wrote the
opinion for the panel, and Circuit Judge Edmonson concurred in
the result.  _Sharon McGowan_

9th Circuit Lets Religious Landlords Reject Unmarried Cohabitants

In a 2-1 ruling that implicitly overruled decisions by the
Alaska and California Supreme Courts and directly contradicted
the December 22, 1998, decision by the Michigan Supreme Court in
_McCready v. Hoffius_, 1998 WL 889388, a panel of the U.S. Court
of Appeals for the 9th Circuit ruled on Jan. 14 in _Thomas v.
Anchorage Equal Rights Commission_, 1999 WL 11337, that a
landlord with religious objections to renting an apartment to an
unmarried couple is exempt from complying with a state law
banning discrimination on the basis of marital status.  The
Alaska and California cases in question are _Swanner v. Anchorage
Equal Rights Commission_, 874 P.2d 274 (Alaska), cert. denied,
513 U.S. 579 (1994), and _Smith v. Fair Employment and Housing
Commission_, 913 P.2d 11434 (Calif. 1996).

In an opinion by Circuit Judge Diarmuid O'Scannlain, the court
based its ruling on the right of free exercise of religion
guaranteed by the 1st Amendment, together with purported
constitutional rights of landlords to resist regulations that
restrict their freedom in selecting tenants and accompanying
rights of freedom of speech.

The ruling, which has obvious implications for lesbians and gay
men facing religiously-based discrimination, drew a scathing
dissenting opinion from Circuit Judge Michael D. Hawkins. 
Recognizing the potential implications for gay people, Lambda
Legal Defense & Education Fund had filed an amicus brief in this
case. 

The lawsuit was brought by Kevin Thomas and Joyce Baker, each of
whom owns rental property in Anchorage, Alaska, that is subject
to both state and local laws forbidding housing discrimination on
the basis of marital status.  In the past, Alaska courts have
held that these laws specifically forbid landlords from refusing
to rent apartments to unmarried couples, even though the
landlords have religious objections to facilitating
"fornication."  Although there was no indication that anybody had
every filed a discrimination complaint against Thomas or Baker,
they claimed that as observant Christians they had consistently
refused to rent apartments to unmarried couples, and that they
feared possible future prosecution under the state and local
laws, so they filed suit to have the laws declared
unconstitutional as applied to them.

U.S. District Judge H. Russel Holland ruled in favor of the
landlords, and the state appealed to the 9th Circuit.  State
officials quickly indicated that they would petition for a
rehearing before a larger panel of the 9th Circuit.

The decision goes against the trend of recent rulings by
appellate courts on this question, which have been strongly
influenced by _Employment Division v. Smith_, 494 U.S. 872
(1990), in which the Supreme Court ruled, in an opinion by
Justice Antonin Scalia, that the free exercise clause does not
prevent a state from applying a religiously-neutral law of
general application to particular conduct, even though applying
the law will incidentally affect an individual's right to
practice his or her religion.  (_Smith_ involved a claim by a
Native American that his right to ingest peyote for religious
purposes was unconstitutionally burdened when he was denied
unemployment benefits after being fired by his employer for using
peyote.)

Most courts addressing the issue of the religious landlord since
_Smith_ case have ruled that marital status discrimination
provisions are laws of general application, and that the
incidental burden placed on a landlord's exercise of his religion
by forbidding him from discriminating against unmarried couples
does not violate the 1st Amendment.

Disagreeing with this reasoning, Judge O'Scannlain seized upon
comments in Justice Scalia's opinion about cases where the
challenged government action involved both free exercise of
religion and some other constitutional right, so-called "hybrid"
constitutional claims.  In attempting to harmonize the Court's
decision in _Smith_ with prior free exercise cases, Scalia argued
that the prior cases where constitutional violations were found
all involved such hybrid claims.  However, Scalia's opinion does
not specifically described how courts should handle hybrid
claims.

In this case, O'Scannlain accepted the landlords' arguments that
the Alaska and Anchorage discrimination laws also affected their
right not to have their property "taken" for a public purpose
without just compensation, and their right of free speech under
the 1st Amendment.  Having found that the landlords presented a
hybrid claim, O'Scannlain asserted that application of the
discrimination law to them must be tested under the highest level
of judicial review, strict scrutiny, under which the state must
demonstrate a compelling interest that can only be accomplished
by application of the challenged law.

In this case, O'Scannlain held that Alaska did not have a
compelling interest in preventing housing discrimination against
unmarried couples, reasoning that the state disadvantaged or
failed to protect unmarried couples in a variety of settings, and
that discrimination against them, unlike race or sex
discrimination, had never been identified by the courts as
presenting the same kind of weighty public policy concerns.  In
particular, O'Scannlain observed that other categories covered by
discrimination law, such as race or sex, had been identified by
the Supreme Court as invoking strict or heightened scrutiny in
equal protection contexts, unlike marital status.  Indeed,
O'Scannlain observed, in single-family zoning cases, the Court
had even countenanced discrimination against unmarried
cohabitants.

Ironically, exactly the same arguments were rejected just a month
ago by the Michigan Supreme Court in _McCready v. Hoffius_.  In
that case, applying _Employment Division v. Smith_, the court
found that Michigan's marital status discrimination law was one
of general application and thus no free exercise claim could
successfully be asserted.  Further, responding to a state
constitutional argument, the Michigan court acknowledged that the
state free exercise clause was more protective of religious
rights than the federal clause as interpreted by the U.S. Supreme
Court, but concluded that the state had a compelling interest in
protecting unmarried couples from housing discrimination,
primarily due to the fundamental interest that individuals have
in securing suitable housing.

In his dissenting opinion, Judge Hawkins first argued that the
court should have dismissed the case outright on jurisdictional
grounds.  Under the constitution, federal courts are only
supposed to decide actual cases and controversies, and are
forbidden from giving advisory opinions or deciding hypothetical 
cases.  Hawkins pointed out that neither of these landlords had
ever been charged with violating the law, and there was only one
reported Alaska court decision involving this kind of claimed
discrimination.  Under the circumstances, he argued, this case
was not ripe for adjudication and the court should have avoided
deciding it. 

But then turning to the merits, Hawkins strongly rejected the
court's adoption of the hybrid theory, criticized the way the
court had applied it in this case, and particularly objected to
the court's acceptance of the landlords' arguments about the
taking of their property and restrictions on their freedom of
speech.  Hawkins pointed out that all these aspects of the
opinion contradicted past rulings on these various legal
theories, including rulings by the U.S. Supreme Court that have
upheld state and local regulations of land use and landlords'
rental decisions.

Hawkins criticized the court's failure to exercise judicial
restraint by ruling on a controversial question in a case that
did not involve an actual enforcement action under the local
laws.

Hawkins's concluding comments sound the alarm about the possible
harms flowing from this decision.  "Its potential for harm
will be seen when a landlord in this circuit refuses, on the
basis of religious beliefs as honestly and firmly held as those
of Thomas & Baker, to rent or sell housing to divorced
individuals, interracial couples, victims of domestic abuse
seeking shelter, or single men or women living together simply
because they cannot afford to do otherwise, in spite of state and
local laws forbidding such discrimination," he wrote.

That this was a "put-up" case, as part of a general campaign by
religious conservatives to undermine anti-discrimination laws
raising "moral" concerns, is shown by the identity of
organizations that have filed amicus briefs in many of the recent
cases on the subject, including this one.  The Center for Law &
Religious Freedom filed an amicus brief on behalf of many of the
same groups who filed anti-gay amicus briefs in pending same-sex
marriage cases and cases attacking domestic partnership benefits
plans and state anti-discrimination statutes. 

On Jan. 25, Los Angeles City Attorney James Hahn joined with
civil rights groups in Southern California to announce that they
would petition the 9th Circuit to rehear the case or grant en
banc review.  Hahn said, "This ruling. . . would allow
discrimination against unmarried couples, gay men, lesbians,
people with AIDS, HIV and other disaiblities.  It opens the door
to other forms of discrimination, which theoretically could be
justified on religious grounds.  We have fought too hard for
civil rights protecitons. . . to allow this decision to stand."
_Los Angeles Times_, Jan. 26.  A.S.L.

Ohio Appeals Court Reverses Gay Solicitation Conviction

Finding that a simple statement to an undercover police officer
who was urinating in a public restroom that the speaker wanted to
"suck" him did not constitute fighting words, the Court of
Appeals of Ohio in Cuyahoga County reversed a conviction for
"importuning" under Ohio R.C. 2907.07(B).  _State of Ohio
Metroparks v. Lasher_, 1999 WL 13971 (Jan. 14).

The statute in question provides: "No person shall solicit a
person of the same sex to engage in sexual activity with the
offender, when the offender knows such solicitation is offensive
to the other person, or is reckless in that regard."

Sergeant Mark Carney, a parks ranger for the city of Cleveland,
was working as an undercover officer seeking to entrap gay men. 
(OK, the court doesn't describe it that way, but this newsletter
does not pretend to total objectivity in describing these cases.) 
Carney claims that when he drove into the parking lot near a
restroom in the Meadows Picnic area of Cleveland Metropark, he
saw Alvin Lasher writing something on a piece of paper and hand
it to the driver of a car, who then drove away.  Carney then saw
Lasher walk into the men's room and look out the men's room
window. 

Carney entered the men's room and saw Lasher sitting fully
dressed on one of the toilet seats.  Carney said "hello" to
Lasher and walked to the urinal adjacent to the toilet stall to
relieve himself.  There was a glory hole in the partition, and
Carney claims Lasher was watching him urinate through the hole. 
Carney asked Lasher "What are you looking for?"  Lasher replied
that he would like to "suck" Carney.  When Carney then said
"Excuse me?" Lasher repeated his statement.  Carney then arrested
Lasher.

Carney later testified that Lasher's statement offended him and
that, if he were off duty and Lasher had made such a statement,
he would have struck him.  Carney's testimony, of course, was
presented in order to meet the standard set by the Ohio Supreme
Court in _State v. Phipps_, 58 Ohio St.2d 271 (1979), in which
the court upheld this statute against a constitutional challenge
by narrowing its construction to apply only to "fighting words."

Lasher moved to dismiss the charges, claiming the statute was
unconstitutional under the federal and state constitutions.  The
trial judge in Garfield Heights Municipal Court denied the
motion, and a jury convicted Lasher, who was sentenced to a six-
month jail term and a $1,000 fine, execution of sentence being
stayed pending this appeal.

Writing for the court, Judge McMonagle seemed quite sympathetic
to the constitutional claims, but found that as an inferior
court, the court of appeals could not overrule a prior
determination by the Ohio Supreme Court that this statute is
constitutional.  However, McMonagle found the idea that this case
amounted to fighting words to be rather far-fetched.  "Here, the
evidence is just not sufficient to support a conclusion that
appellant's words tended to incite an immediate breach of the
peace.  Sergeant Carney is a police officer and trained to
exercise a higher degree of restraint than the average person,
especially in this factual scenario where he is acting as a decoy
in hopes of eliciting a solicitation.  Accordingly, there was no
real likelihood that Sergeant Carney would react violently to
appellant's words."

But even going beyond this precise factual setting of a vice copy
decoy, McMonagle found the likelihood that this kind of simple
solicitation in a men's room would elicit violence from the
average person to be "remote."  The court noted that Lasher was
fully dressed, that Carney actually initiated the conversation,
and that Carney could have left the restroom without incident. 
"Moreover, appellant merely told Sergeant Carney what he wanted
to do to him; he did not ask Carney to perform any act.  Under
these circumstances and on this evidence, we conclude that
although appellant's words may well have been inappropriate,
annoying and even offensive, nonetheless, they did not rise to
the level of fighting words."

The court also concluded that under the circumstances, Lasher's
statements were not reckless, either.  Since he was responding to
Carney's question, "we are unable to conclude that appellant
acted with heedless indifference to the consequences that his
solicitation would be offensive."  

The conviction was reversed, and the court ordered that Lasher
recover his costs of the appeal from the parks department and
that a special mandate be sent to the trial court to effect the
court of appeals' judgment in the matter.  Lasher was represented
by Lawrence R. Smith and George R. Wertz of Akron, Ohio.  A.S.L.

Oregon Appeals Court Affirms Harassment Verdict Under State
Disability Law

The Oregon Court of Appeals upheld a jury's verdict awarding
damages against a co-worker and the employer for homophobic
harassment in _Wheeler v. Marathon Printing, Inc._, 1998 WL
869969 (Nov. 25).  However, the court held that an employer
cannot be held liable for intentional infliction of emotional
distress based on its failure to get co-workers to stop harassing
another worker.

Edward Wheeler was employed beginning in 1989 by Marathon
Printing as a press operator.  His boss was Marathon's owner, Ken
Zirk, and one his co-workers was Gary Wilkinson, who is a co-
defendant in the case.  Wheeler's problems began in 1991 when
Wilkinson commented to him that "if plaintiff would give him a
`blow job,' Wilkinson would `owe' him two." Wilkinson claimed the
comment was a joke, but Wheeler, "who had been sexually molested
as a child and had sought counseling to aid him in dealing with
issues of sexual orientation, did not understand it as a `joke.' 
Instead, plaintiff was devastated by the comment and sought
additional counseling."

Wilkinson then allegedly exacerbated the situation by calling
Wheeler homophobic names for several months.  Wheeler confronted
him and asked him to stop, and when he didn't, Wheeler went to
Zirk to complaint, but Zirk would not do anything about it. 
After Zirk refused to help, Wheeler attempted suicide and was
hospitalized for depression.  Wheeler begged Zirk to make some
changes in the workplace so that Wheeler would not be working
near Wilkinson, but Zirk refused, and when Wheeler returned to
work, Wilkinson resumed the name-calling.  Wheeler's counselor
wrote Zirk seeking an end to the harassment, but Zirk responded
by making a videotape in which he questioned Wilkinson about the
harassment, which Wilkinson denied.  Finally, Wheeler walked off
the job after Wilkinson called him "a crazy lunatic faggot."

Wheeler sued for disability discrimination and intentional
infliction of emotional distress.  The jury found the employer
guilty of discrimination and constructive discharge, awarding
damages totalling over $50,000 on those claims.  The jury also
found that both Marathon and Wilkinson were guilty of intentional
infliction of emotional distress, assessing damages against
Marathon of $15,600 and against Wilkinson of $7,500.

The court of appeals rejected all but one of Marathon's
assignments of error, agreeing with Marathon that it could not be
held liable for intentional infliction of emotional distress for
failing to prevent Wilkinson from inflicting such distress on
Wheeler.  In particular, Marathon argued that Wheeler's complaint
was not really about disability discrimination (premised on his
depression) but rather on perceived sexual orientation
discrimination, a category not covered by state law.  (This
argument is undermined by the court of appeals' subsequent ruling
in _Tanner v. Oregon Health Sciences University_, 1998 WL 869976
(Dec. 9), which we reported last month, holding that sexual
orientation discrimination may be cognizable under the state's
sex discrimination law.)  

Writing for the court, Judge Haselton found that Wheeler did have
a disability under the law, depression, and that Marathon's
failure to assist Wheeler amounted to failure to accommodate
Wheeler's disability.  In this case, the court found that Wheeler
had presented evidence from which a jury could conclude that
Wheeler's disability was either "caused by, or continuously
materially exacerbated by, Wilkinson's conduct," that at least
some of Wilkinson's harassing conduct was in response to
Wheeler's depression, that Wilkinson was acting in the scope of
his employment (and thus his conduct could be attributed to
Marathon), that Zirk knew about Wheeler's depression and the
effect Wilkinson's razzing was having but refused to do anything
about it, and finally that Zirk even testified that he was
relieved when Wheeler walked out and didn't come back, thus
ending the situation.  Consequently, the court of appeals
approved the trial judge's refusal to direct a verdict against
the plaintiff.

As to the argument that the case was really about sexual
orientation, not disability, discrimination, the court said:
"Although the evidence might well suggest that Wilkinson's
original motivation for engaging in the harassing conduct that
first created the hostile work environment was homophobia, a
reasonable jury could conclude that Wilkinson continued to engage
in that conduct, at least in material part, because of
plaintiff's disability."

While rejecting Wilkinson's argument on appeal that his conduct
was insufficiently egregious to subject him to tort liability for
intentional infliction of emotional distress, the court accepted
Marathon's argument.  (Here, of course, workers compensation law
is a complicating factor, since mere negligence by the employer
would not subject it to common law tort liability.)  The court of
appeals found that in this case the claim against Marathon was
not that it initiated or encouraged the harassment, merely that
it "allowed" the harassment to continue; as such, this was not
sufficient to impose tort liability on the employer.  A.S.L.

Supervisor May Be Individually Liable for Sexual Orientation
Discrimination Under Connecticut Law

A federal district judge has held that a supervisor can be
individually liable for discrimination on the basis of perceived
sexual orientation under the Connecticut Fair Employment
Practices Act (CFEPA).  _Swanson v. Envirotest_, 1998 WL 928415
(D.Conn, Dec. 18).  Swanson sued Robert Jackson, a manager
responsible for statewide operations at Envirotest, a Vehicle
Emission Inspection (VEI) company, alleging discrimination under
Title VII of the federal Civil Rights Act of 1964 as well as the
CFEPA.

Swanson was hired in November of 1995 as a Station Manager at an
Envirotest VEI facility and had received satisfactory or better
job performance reviews.  Swanson claims she was harassed by Nick
Aurora, an employee of the State Department of Motor Vehicles,
who had called her a "dyke" and boasted that he could have
employees fired or transferred.  Swanson's complaints to
Envirotest regarding Aurora were ignored.  Melissa Dombroski,
hired by Swanson, reported that Aurora called her a "dyke" and
"lesbian," but her complaints were similarly ignored.  Dombroski
rented the second floor of the duplex owned by Swanson and her
husband.  In March of 1997, Dombroski received a promotion which
was rescinded ten days later on April 15 by Jackson after
complaints by a friend of Aurora who also applied for the job.
Dombroski left the work site after being told of the promotion
being rescinded.  On the same day, while Swanson was taking a
scheduled break, she was verbally harassed by Aurora.  Swanson,
upset by the incident, put another employee in charge and left
for the day.

That evening, Swanson was called to a meeting where Jackson was
present.  At the meeting Swanson was told that Dombroski could be
transferred for living at the same address as her.  Swanson
disputed this.  The next day she was told that her "verbal
resignation" (which had not been offered) was accepted.  She sued
on April 22, 1998.

Citing CFEPA, Judge Nevas found that supervisory employees could
be held liable for discrimination on the basis of perceived
sexual orientation.  The statute refers to "any person [or]
employer" for the purposes of fixing liability for
discrimination.  "This Court has consistently found that CFEPA
imposes liabilities on individual supervisory employees," Judge
Nevas wrote.  Further, "despite the defendant's invitation, the
Court is not inclined to reconsider its conclusion" relating to
liability of supervisory employees.  Consequently, Nevas denied
Jackson's motion to dismiss him as an individual defendant in the
case under the state law claim.  (It is well established that
individual supervisors cannot be sued under Title VII.)  _Daniel
R Schaffer_

Federal Court Rejects Constitutional Challenge to Public
College's Sex Ed Course

This just in from the culture wars. . .  U.S. District Judge
Gershon (E.D.N.Y.) has rejected a constitutional challenge
brought by some conservative Nassau County taxpayers against a
sex education course offered at Nassau County Community College. 
_Gheta v. Nassau County Community College_, 1999 WL 30668 (Jan.
21).  The taxpayers charged that the course, which presents human
sexuality as an academic subject and uses texts which attempt a
non-judgmental presentation of sexual diversity, violates their
rights as taxpayers by presenting an anti-religious approach to
the subject.  Gershon granted defendants' motion for summary
judgment.

After concluding that at least some of the plaintiffs are Nassau
County taxpayers with standing to challenge a program supported,
at least in part, by tax dollars, Judge Gershon proceeded to
demolish the theory of plaintiffs' case.  After summarizing the
textbooks and syllabi of this popular course, "Family Living and
Human Sexuality," Gershon subjected the course to the three-
pronged test adopted by the Supreme Court in _Lemon v. Kurtzman_,
403 U.S. 602 (1971(), to analyze whether the course violates the
Establishment Clause of the First Amendment.

Under the first prong, governmental purpose, Gershon found that
there was no dispute that the course "has the secular purpose of
teaching students about human sexuality as an academic subject." 
On the "excessive entanglement" prong, Gershon found that "there
is no evidence that the NCC curriculum committee, in selecting
the curriculum for [the course], has had any dealings with,
connections to or involvement with any religious or anti-
religious organizations, or that the textbooks were published by
companies with religious or anti-religious affiliations."

Finally, turning to what she characterized as "the crux of
plaintiff's Establishment Clause claim," Gershon focused on
whether the course "has the effect of disparaging the Judeo-
Christian sexual ethic while promoting "sexual pluralism."  As to
this, her analysis was made up largely of quotes from prior
federal court decisions, to the effect that the Establishment
Clause is not violated when a public school course presents a
subject in a way that may offend the religious views of some
taxpayers.  

"If it were unconstitutional to require students to read books in
which concepts coinciding with their religious beliefs came under
question, then thousands of college courses throughout the
country would be invalidated, including courses on philosophy,
history, religion, literature, and biology," wrote Gershon.  "The
dispositive issue is not whether the course materials contain
statements that conflict with the beliefs of certain religious
groups, but whether the inclusion of such statements communicates
a message of government endorsement or disparagement of religion.
. .  Viewing the evidence in the light most favorable to
plaintiffs, the materials as a whole are designed to teach
students about human sexuality as an academic subject, and not
about religion."

As a parting shot, Gershon noted: "In fact, the relief sought by
the plaintiffs would itself result in a violation of the
Establishment Clause.  Allowing religious groups to dictate the
curriculum of a public college would have the direct and obvious
effect of endorsing those groups' religious views. . .  In
addition, assuming that only those materials expressly found
objectionable by plaintiffs were to be considered, the school
would become involved in deciding which statements are offensive
to plaintiffs' religious views and why they approve.  Such an
enterprise would be a paradigm of improper entanglement."  A.S.L.

Court Rejects Inquiry Into Robbery Victim's Sexual Orientation

In _Hughey v. State_, 1998 WL 906426 (Dec. 30), the Mississippi
Court of Appeals affirmed the conviction of defendant Alvin
Hughey of one count of armed robbery.  The issue of concern on
appeal was whether the trial court was correct in denying Alcorn
the opportunity to cross examine the prosecution's chief witness
as to his sexual orientation. 

Hughey was charged with robbing a convenience store in Corinth,
Mississippi in October 1996.  The clerk behind the counter
activated a silent alarm, and identified the defendant as the
perpetrator.  Hughey's defense was that the clerk himself stole
the money for the purchase of sex and drugs, and concocted the
story as a cover. 

The trial court sustained the prosecution's objection to
inquiries concerning the clerk's sexual orientation, and the
appellate court
affirmed.  The appellate court ruled that while Hughey could have
made inquiry as to whether the clerk might have a reason to
fabricate a story, and that proclivity to use money for illegal
purposes (drug use, gambling, hiring of prostitutes) might be
relevant to demonstrate such a proclivity, the court found no
necessity to inquire into the clerk's sexual orientation. To
allow inquiry into this matter would have been unfairly
prejudicial.  "Paying prostitutes was the key, not the sex of the
prostitutes," wrote Judge Southwick for the court.  S.K.
 
Ohio Appeals Court Rules Out Evidence of Victim's Homosexuality
in Murder Case

In _State v. Frost_, 1998 WL 864907 (Ohio App., 2nd District,
Nov. 13), the court affirmed a trial judge's decision to exclude
evidence that a murder victim had semen in his anal tract,
finding that this otherwise probative evidence was too
prejudicial to give to the jury.

Robert Frost was charged with the murder of Stephina Jackson (a
man), who was found stabbed to death in an alley in Dayton after
midnight on January 4, 1997.  Eyewitnesses had placed Jackson and
Frost together earlier that night at a nearby apartment, others
saw them in the alley, and there was testimony that Frost was
overheard threatening Jackson.  The state filed a motion in
limine before trial to exclude the evidence that Jackson had
semen in his anal tract.  Jackson was convicted of murder.

On appeal, Jackson argued that exclusion of the semen evidence
was error, asserting: "It is clear from the record that the
decedent must have engaged in anal intercourse with another male
shortly before his demise.  Such evidence raises a reasonable
inference that the decedent engaged in homosexual activity, even
prostitution, with someone other than Defendant shortly before
his death.  Coupled with the fact that the decedent was in the
midst of a high crime area, the existence of semen in the
decedent's anal tract raises a distinct probability of another
suspect and motive.  Clearly, the trial court abused its
discretion by failing to recognize the obvious relevancy of the
semen evidence, let alone weigh its probative value against any
alleged prejudicial effect."

Ohio Evidence Rule 403(A) provides that relevant evidence may be
excluded "if its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury."  

Writing for the court of appeals, Judge Grady observed that "the
principal fact in issue at trial was the identity of the person
who stabbed and killed Stephina Jackson. . . .  The
considerations that Frost would argue to the jury are
illustrative of the very reasons why Evid.R. 403(A) was enacted
and should be employed. The fact that the deceased had engaged in
anal intercourse shortly before his death does not support an
inference that his partner in that sexual conduct stabbed him,
absent some evidence that the encounter involved or led to his
murder.  There is none.  To suggest that it might have happened
that way invites speculation by the jury.  More ominously, it
could lead jurors who personally disapprove of homosexual sex, or
homosexuals in general, to devalue the decedent's murder and
excuse the perpetrator, whoever that was, from criminal
liability."  The court concluded that the trial judge did not
abuse his discretion in excluding this evidence.  The court also
rejected two other assignments of error.  A.S.L. 

Repeal Effort Under Way on Solomon Amendment

Students at Boston College Law School and U.S. Representative
Barney Frank (D.-Mass.), who represents the congressional
district in which the school is located, have begun a project to
obtain repeal of the notorious Solomon Amendment, the current
version of which was enacted by Congress as part of the Omnibus
Budget Reconciliation Act, 104 P.L. 208 (H.R. 3610), Section
514(b), enacted September 30, 1996.  Under this provision, none
of the funds appropriated for the Departments of Labor, Health
and Human Services, or Education (and related agencies) may be
made available by contracts or grants (including a grant of funds
to be available for student aid) to any educational entity that
"in effect prevents (1) entry to campuses, or access to students
(who are 17 years of age or older) on campuses, for purposes of
Federal military recruiting" or that prevents access to basic
directory information about students.

After the government issued regulations putting this provision
into effect for the school year beginning in the Fall of 1997,
most law schools that had been barring military recruiters
because of the anti-gay Defense Department personnel policies
decided to allow the military recruiters to come on campus in
order to avoid losing federal financial assistance, most
particularly work study and other assistance for students.  The
Solomon Amendment in effect coerced schools to chose between
preserving their non-discrimination policies and their financial
aid programs.  

After students from B.C. Law School invited Rep. Frank to speak
on the subject, he agreed to become involved in an effort to
repeal this measure during the current (106th) Congress.  At the
annual meeting of the Association of American Law Schools, held
in New Orleans on Jan. 7-10, Rep. Frank spoke at a program
sponsored by the Association's Section on Gay and Lesbian Legal
Issues about the prospects for repealing the Amendment.  With
Rep. Gerald Solomon, author of the amendment, having retired from
Congress, its most vigorous proponent is no longer on the scene. 
Frank indicated that repealing the amendment seemed possible,
provided that the lesbian and gay community nationwide is capable
of generating sufficient communications to members of Congress to
persuade them that it is to their political advantage to pass a
repeal measure.

Frank emphasized that individual letters to Representatives and
Senators are the most effective way to do this.  Petitions, phone
calls, even e-mail, are less effective than letters from
registered voters in the member's constituency.  Frank speculated
that as few as 15-20 letters to an individual representative
could make a significant impression.  He also noted that since
there are law schools in almost every state, letter-writing
campaigns by law faculty and students had a good chance of
reaching most members of Congress.

Those who want to communicate with their representatives and
senators can do so easily.  Mail should be address to the
member's name, U.S. House of Representatives, Washington D.C.
20515, or U.S. Senate, Washington D.C. 20510.  A.S.L.

N.J. Appellate Division Shows Restrain in Applying Megan's Law

At least one court is showing some restraint in imposing Megan's
Law notification requirements.  In _Matter of Registrant R.F._,
1998 WL 925203 (N.J.Super.App.Div., Dec. 28), two judges of the
New Jersey Appellate Division denied a prosecutor's request to
require a convicted sex offender's registration information to be
sent to 25 schools, agencies and community organizations in and
about his home area.  

R.F. had been convicted of engaging in sexual activity with the
10-year-old son of his girlfriend in his home.  He is a 31-year-
old with a history of behavior disorders, alcohol and drug abuse,
etc.  (He had previously, as a young teenager, been involved in
an incident where he fondled the genitals of a 3-year old female
counsin, as a result of which he underwent a period of
psychotherapy treatment.)  There was no evidence that he had ever
engaged in sexual misconduct outside his home, hung around
schoolyards, or was even a pedophile, and the evidence showed
that he was now clean and sober.  A licensed psychologist who
examined him testified that there was no overall risk to the
community upon his release from prison.  

Nonetheless, the prosecutor argued for this expansive
notification on the grounds that under the rating system used for
evaluating offenders, R.F. was a tier II offender posting a
moderate risk.  The court was having none of this.  Judge Antell
pointed out that "it is the prosecutor's burden to prove by clear
and convincing evidence not only the degree of risk created by
registrant's presence in the community, but also the scope of
notification necessary to protect the members of the community
likely to encounter him."

Antell prominently quoted prior decisions concerning incest
offenders, and the likelihood that notification outside the
family circle was unnecessary as a matter of community
protection.  "We find nothing in the registrant's history and
personal circumstances that rises to the level of clear and
convincing evidence that he threatens the children attending the
listed schools," wrote the court, noting that the two prior
incidents of sexual abuse took place in his home and "nothing in
the evidence suggests that he is given to prowling schoolyards or
other areas serving children."  

The court commented that the prosecutor wrongly sought to shift
the burden to R.F. to show that he is not a risk, when under
Megan's Law the burden is on the prosecutor to show the necessity
for imposing notification.  A.S.L.

Ohio Appeals Court Upholds Exclusion of Community Standards
Survey in Prosecution of Adult Bookstore for Obscenity

The Ohio Court of Appeals affirmed the conviction of an adult
bookstore on obscenity charges in a case involving ostensibly gay
pornography.  _State v. Midwest Pride IV Inc._, 1998 WL 898277
(Ohio App. Dec. 28).  

Two sheriffs purchased pornographic videos at the bookstore, one
of which involved men who were able to engage in anal sex with
themselves.  (Because the men in the video are described as being
"assisted" by women, it is unclear what, if any, homosexual
content the films contained.)  The defendant was convicted at
trial and appealed on several grounds, including the contention
that the trial court improperly excluded evidence of their
proposed expert, a social scientist who had researched local
community standards concerning pornography.  The excluded
evidence was a telephone survey of 150 households in the county,
eliciting respondents' views on pornography.  The trial court
judge ruled that the survey was irrelevant and excluded the
evidence.  

The Appeals Court reasoned that the poll would be relevant and
admissible if it addressed community standards in general, as
well as the community's acceptance of the particular work in
question.  Noting the "large difference in communicative impact"
between a written phrase and its videographic impact, the court
held that the trial judge arrived at the correct result.  While
the poll included community standards information, it did not
specifically touch upon the community's reaction to the two 
specific videotapes in question.  The court also rejected two
other grounds upon which the defendant appealed: that a juror was
improperly excluded and that the judge should have given a
particular jury instruction, finding that neither was an abuse of
the broad discretion granted the trial court.  _Dirk Williams_

California District Court Rules Against Same-Sex Harassment Claim

On Dec. 30, the U.S. District Court for the Northern District of
California granted summary judgment to a defendant accused of
discrimination by allowing a hostile work environment based on
same-sex harassment.  _Pavao v. Ocean Ships, Inc._, 1998 WL
917528.  Whitey Paveo was employed on board the Samuel Cobb for a
period of 90 days.  At various points during the voyage, Pavao
was allegedly harassed by the Chief Cook, Thomas Barnett. 
Barnett allegedly made numerous comments inviting Paveo to
perform oral sex on Barnett and would refer to Paveo using the
female gender and frequently touched Paveo on the arms, shoulders
and neck.  

The court granted summary judgment to the defendant finding that
<!69>occasional vulgar banter, even if tinged with sexual
innuendo, does not create the type of hostile or deeply repugnant
environment contemplated by Title VII."  The court noted that
these incidents were between two men, both heterosexual. 
However, the court went on to note that had these incidents
occurred between people of different genders or had there been
credible evidence that the harrasser was homosexual, an inference
of discrimination could have been drawn from the facts before the
court.  _Todd V. Lamb_

D.C. Circuit Finds Medical Director of Prisons Immune From 8th
Amendment Suit by Transsexual Prisoner

A unanimous panel of the U.S. Court of Apepals for the D.C.
Circuit ruled Dec. 18 that the medical director of the U.S.
Bureau of Prisons had qualified immunity in a suit brought by a
transsexual prisoner claiming that her 8th Amendment rights were
violated by denial of treatment.  _Farmer v. Moritsugu_, 1998 WL
879474.  

Federal prisoner Dee Farmer, a male-to-female preoperative
transsexual famous as a Supreme Court litigant on other issues,
sought a variety of "treatments" without success, and wrote to
the medical director of the Bureau of Prisons with her requests. 
He replied in a letter explaining the Bureau's policy on
treatment for transsexuals: they will be maintained in the status
they had achieved as of the time their incarceration began, and
the Bureau will not provide treatment to bring a sex-change
further along.  Farmer claims to have written again urging
reconsideration, but Moritsugu claims not to have received the
letters.  

The trial court held that the Bureau's policy was constitutional,
but denied Moritsugu's motion to dismiss the claims against him
on qualified immunity grounds.  On appeal, the court found that
even if Farmer's claims were deemed true, Moritsugu, who was
merely applying a constitutional policy of the Bureau, was immune
from personal liability under the 8th Amendment "deliberate
indifference" standard.  A.S.L.

Spitzer Restores Protections for Lesbian/Gay Attorneys

On his first full day in office on Jan. 4, New York State's new
attorney general, Eliot L. Spitzer, a Democrat, issued an
executive order banning discrimination on the basis of sexual
orientation in the New York State Law Department.  The first such
order in the department was issued by former Attorney General
Robert Abrams, also a Democrat, in 1980, but Spitzer's immediate
predecessor, Dennis C. Vacco, a Republican, removed sexual
orientation from the department's non-discrimination policy
immediately upon assuming office four years ago, and several of
the department's openly lesbian and gay attorneys were then
discharged as part of a massive internal purge of the department
replacing career attorneys with patronage appointments.  A.S.L.

Legislative Notes

The City Council in Spokane, Washington, voted 4-3 on Jan. 25 to
pass an ordinance banning discrimination in employment, housing
and public accommodations on the basis of gender, race, religion,
marital status, age, disability, or sexual orientation.  At
first, the ordinance will apply only to workplaces with 25 or
more employees, but that number will be lowered in steps until it
hits 8-employee workplaces in 2001.  A more expansive definition
of sexual orientation that would have included transsexuals was
deleted in the final version of the bill, which also includes a
broad exemption "where compliance would substantially burden a
personþs (or organizationþs) exercise of religion."  An opponent
stated that a citizen petition drive to place a repeal question
on the ballot would commence promptly.  _Spokesman Review_, Jan.
26. * * * There was an internet report, which we were not able to
confirm at presstime, that the Louisville, Kentucky, City Council
passed an ordinance banning sexual orientation discrimination in
employment during the last week of January.  According to this
report, distributed by a transgender rights group, the definition
of sexual orientation in the ordinance is arguably broad enough
to provide protection to transgender persons.  More on this next
month.

The Broward County, Florida, Commission voted 6-1 on Jan. 26 to
provide health benefits to the domestic partners of county
employees.  The measure also sets up a partnership registry open
to all domestic partners, not just county employees, that will
establish rights to hospital and jail visitation, and companies
that provide such benefits to their employees will be given
preference in bidding for county contracts.  (Unlike the San
Francisco ordinance, Broward will not mandate that employers
provide such benefits in order to qualify as contractors.) 
Concerned Citizens for Broward, a conservative group, indicated a
lawsuit challenging the measure may be in the works.  Lobbying by
the Concerned Citizens succeeded in getting the Council to back
away from the San Francisco-style contractors provision that had
initially been proposed.  _Ft. Lauderdale Sun-Sentinel_, Jan. 27.

The Santa Clara County, California, Board of Supervisors voted
unanimously on Jan. 12 to adopt a policy requiring that all
county contractors have policies banning sexual orientation
discrimination.  _N.Y. Blade News_, Jan. 29.

The Charter Reform Commission for Los Angeles has proposed that
the new city charter include a provision requiring the city to
extend the same employee benefits to domestic partners as it does
to spouses of its employees.  In addition, the charter proposal
will include a requirement, similar to San Francisco's, that city
contractors provide such benefits to their employees if they want
to continue doing business with the city.  Los Angeles is a much
larger city than San Francisco, so its contractor provision is
likely to have a much greater impact.  The charter will be put to
a vote by the residents of the city later this year.  _New
Release from the Commission_, Dec. 31.

The Cedar Rapids, Iowa, City Council voted 3-2 on Jan. 7 to amend
the city's civil rights ordinance to add sexual orientation to
the prohibited grounds of discrimination.  The measure covers
education, housing, credit, employment and public accommodations.
_Des Moines Register_, Jan. 8; _Omaha World-Herald_, Jan. 9.

The city council of Petaluma, California, voted unanimously on
Jan. 4 to establish a domestic partner registry and extend
employee benefits to non-married partners of city employees.  The
benefits include dental, vision, leave, life insurance, and long-
term disability.  Because medical and retirement benefits are
provided through the state, they are not included until such time
as the state modifies its policies.  The ordinance defines
domestic partners as unrelated people of at least 18 years of age
who live together, even if they own separate residences, who have
agreed to joint responsibility for living expenses and are not
married nor a part of another domestic partnership.  _Santa Rosa
Press Democrat_, Jan. 5.

Litigation Notes

Robert Borquez, the gay Denver lawyer who was fired after he told
his boss, Robert Ozer, that he needed time off to deal with his
partner who had just been diagnosed with AIDS, has finally
settled his long-running lawsuit against Ozer's law firm.  See
_Ozer v. Borquez_, 940 P.2d 371 (Colo. 1997).  The case has
generated several interesting appellate decisions concerning the
possible use of an off-duty conduct law to protect employees from
anti-gay discrimination, as well as establishing an important
precedent under Colorado law for the privacy rights of employees. 
According to a press report, Borquez settled for about $95,000. 
Both Borquez and Ozer told a Denver reporter that the lawsuit had
changed their legal careers by persuading them to specialize in
employment law.  _Denver Rocky Mountain News_, Jan. 7.

The U.S. Supreme Court refused to review the 2nd Circuit's
decision in _Hickerson v. City of New York_, 146 F.3d 99 (1998),
which rejected a constitutional challenge to New York City's
adult business zoning ordinance, on Jan. 11.  Rejecting two cert.
petitions, _Amsterdam Video, Inc. v. City of New York_, No. 98-
569, and _Hickerson v. City of New York_, No. 98-574, the Court
put to rest the constitutionality of the ordinance for now. 
However, the Giuliani Administration has encountered some
enforcement setbacks due to loopholes in the law; should
amendments be made to close those loopholes, new constitutional
litigation is likely to begin.

On Jan. 11, the U.S. Supreme Court denied a petition for
certiorari in _Nebraska v. Pattno_, No. 98-647, 1999 WL 8044.  In
the underlying decision, _Nebraska v. Pattno_, 579 N.W.2d 503
(Neb. 1998), the Nebraska Supreme Court set aside a prison
sentence of 20 months to 5 years for Aaron Pattno, then 25 years
old, who had pled guilty of having sex with a 13-year old boy. 
The basis for setting the sentence aside was bias by the trial
judge, whose comments during sentencing included reading Biblical
passages condemning homosexuality.  The Supreme Court noted that
consensual sodomy between adults was not a crime in Nebraska, so
the Biblical passages read by the judge were "not relevant to the
crime for which Pattno pled guilty."  According to an Associated
Press report on Jan. 12, Pattno's new sentence was 4 years
probation, but by that time Pattno had actually served 13 months
in jail and had become eligible for parole under the original
sentence.  

The Arkansas Supreme Court upheld a life sentence without parole
for Yitzhak Abba Marta, who was convicted of the brutal murder of
Alan Walker, a gay transvestite who was viciously stabbed to
death in 1996.  _Marta v. State_, 1999 WL 18452 (Jan. 14).  The
court rejected a variety of challenges to the fairness of Marta's
trial, none of which related directly to the bias nature of the
crime.  Marta had admitted that Walker's "sexual preferences"
were among the reasons that he and his accomplice killed him.

The Urban Justice Center and volunteer attorneys from Paul,
Weiss, Rifkind, Wharton & Garrison in New York have filed suit in
U.S. District Court in Manhattan on behalf of gay, lesbian and
bisexual youths in foster care in the city, claiming that they
are subjected to physical violence and psychological abuse on
account of their sexual orientation in the cityþs foster care
system.  _Joel A. v. Giuliani_ (S.D.N.Y., filed Jan. 15, 1999). 
The six class representatives described severe instances of
homophobic abuse in the complaint, claiming that when they sought
assistance through the system, their appeals for protection were
met with indifference, blame or isolation. _New York Times_, Jan.
16.

Some guys will do anything for a date....  Veteran gay rights
activist Frank Kameny, determined to spark a new challenge to
Virginia's sodomy law, went on a radio talk show on Dec. 23 and
broadcast a solicitation to every person in the state of Virginia
age 18 or above "to engage with me in an act of sodomy of his or
her choice and as defined by Section 18.2-361 of the Virginia
Code, in some indisputable private place in the state of Virginia
at a time of our mutual convenience." Kameny announced that he
was particularly interested in having his solicitation reach law
enforcement officials, but based on news reports, we doubt that
his solicitation was particularly seductive in tone. . . .
_Washington Blade_, Jan. 1. A.S.L.

Law & Society Notes

In a historic first, homosexual survivors of the Holocaust have
been expressly included as part of the group of recognized
victims under a settlement agreement negotiated between lawyers
for Holocaust survivors and representatives of Swiss banks. In
the agreement, "homosexuals" are listed along with Jews, disabled
people, Gypsies and other groups as "targets and victims of Nazi
persecution."  Gay holocaust survivors who claim entitlement to
assets held in Swiss bank accounts prior to the war will be able
to assert claims against a $1.25 billion pool of funds to be
established in settlement of a lawsuit pending in U.S. District
Court in New York.  _Los Angeles Times_, Jan. 23; _N.Y. Times_,
Jan. 22.

We note the passing of an important early gay rights litigant. 
Vernon E. þCopyþ Berg, III, among the first gay military
plaintiffs, died Jan. 27.  Berg was a young Naval officer of high
attainment who was discharged after a sailor reported on his off-
duty sexual activities.  Bergþs lawsuit, combined with a pending
suit by Leonard Matlovitch, was heard by the U.S. Court of
Appeals for the D.C. Circuit, which found that the Defense
Department had failed in his case adequately to explain why it
did not exercise the discretion it had under then-existing
regulations to keep such a great performer in the service despite
his sexuality.  The case was ultimately settled, producing a
change in policy under which gay personnel would not
automatically be given less than desirable discharges.  See Berg
v. Claytor, 591 F.2d 849 (D.C.Cir. 1978).

The Arkansas Child Welfare Agency Review Board voted Jan. 6 to
ban gay people from being foster parents in the state.  _Arkansas
Democrat Gazette_, Jan. 7.  The only other state with such an
outright ban is New Hampshire, where there is a proposal pending
before the state legislature to repeal a law passed a decade ago
that bans gays from being foster or adoptive parents.

Wisconsin Attorney General James Doyle filed a certiorari
petition with the U.S. Supreme Court on Jan. 25, seeking to
overturn the 7th Circuitþs decision in _Southworth v. Grebe_, 151
F.3d 717, rehearing en banc denied, 157 F.3d 1124 (1998).  The
circuit court held that students who objected to the political
activities of particular campus groups were entitled to a
reduction in their student activities under the First Amendment
to avoid being compelled to provide financial support to those
groups.  Particular targets of the lawsuit, brought by a group of
conservative students, were the campus lesbian/gay and AIDS
groups.  The 7th Circuit ruling conflicts with an earlier ruling
by the 2nd Circuit, creating a circuit split that might persuade
the Supreme Court to take the case.  _Milwaukee Journal
Sentinel_, Jan. 26.

Speaking, we presume, from deep personal experience, Pope John
Paul II told officials from a Vatican tribunal: "It is only in
the union between two sexually different persons that the
perfection of the individual can occur, in a synthesis of unity
and of mutual psychic-physical completeness."  The Pope made the
statement in the context of deploring efforts to attain legal
recognition for same-sex couples, which he characterized as
evidence of "widespread deterioration of the natural and
religious sense of marriage."  _Milwaukee Journal Sentinel_, Jan.
22.

A thumb in the eye of the Republican leadership of the Senate at
a precarious time for the President: Bill Clinton has re-
nominated James Hormel to be U.S. Ambassador to Luxembourg. 
Hormel's nomination died in the last Congress because Senate
Majority Leader Trent Lott, an outspoken homophobe, refused to
bring the matter up for a vote, even though the Foreign Relations
Committee, chaired by Jesse Helms (no slouch in the outspoken
homophobe department), had approved the nomination.  Hormel, a
prominent gay philanthropist who, in an earlier life, was a dean
at the University of Chicago Law School, was tarred by right-wing
groups with personal responsibility for all the accessions
decisions made by the librarians in San Francisco who administer
a gay studies collection which he endowed at the Public Library. 
Lott claimed that he was acting based on concerns that Hormel
would use his position as the nation's first openly-gay
ambassador to advance a "gay agenda."  Hormal stated that as an
ambassador it was his job to advance the administration's foreign
policy agenda, not his personal views.  _N.Y. Times_, Jan. 13.

Despite overwhelming support from the faculty, the president of
Pennsylvania State University, Graham Spanier, decided to block a
faculty senate request for same-sex domestic partnership
benefits.  After consulting with legislative leaders, Spanier
concluded that extending such benefits would endanger the
University's financial support from the state.  _Pittsburgh Post-
Gazette_, Jan. 8.

The Utah Board of Child and Family Services voted 7-2 on Jan. 22
to require that caseworkers determine that all adults living in
prospective adoptive homes be related to the prospective parents
by blood, legal marriage or adoption.  The intent of the
provision is to forbid adoptions by same-sex couples, unmarried
heterosexual couples, and polygamists (who loom as a big issue
due to the state's Mormon heritage).  Single parents would be
allowed to adopt, so long as no other unrelated adult resides in
their household.  _Deseret News_, Jan. 23.  

A split has open up among lesbian and gay activists about the
prosecutors' decision to seek the death penalty in the Matthew
Shepard murder cases.  Few lesbian and gay rights organizations
had taken a position in general on the death penalty prior to
this case, but the ACLU, which has consistently opposed capital
punishment, issued a press release Jan. 22 announcing its
opposition to the death penalty in this and all cases.  Some
activists have protested the failure of leading gay rights
organizations to take a similar public position.

The Defense Department released data on Jan. 22 showing that
discharges under the "don't ask, don't tell" military policy were
up in 1998 over 1997.  According to news reports, 1,145
servicemembers were discharged under the policy in 1998, a 13%
increase.  The increase was due to the Air Force and the Army;
discharges under the policy decreased in the Navy and the
Marines.  Announcement of the data unleashed disagreement about
the cause for the overall increase.  The Defense Department
speculated that servicemembers who wanted to quit, especially
during basic training, were taking advantage of the policy as a
"free way out" of the military.  The Servicemembers Legal Defense
Network challenged this explanation, claiming that discharges
were up because more commanders were violating the part of the
policy that prohibits them from affirmatively hunting out
lesbians and gay men for discharge.  _N.Y. Times_, Jan. 23.
A.S.L.

International Notes

The International Gay and Lesbian Human Rights Commission reports
that the Republic of Chile in South America has repealed its law
against consensual sodomy.  Law 1047, published in the Official
Daily of the Republic on Dec. 23, 1998, repeals the criminal code
section that criminalized same-sex sexual relations between
consenting adults, and sets the age of consent for same-sex
relations at 18 (which is higher than the age for heterosexual
activity).  The repeal capped a seven-year campaign by local gay
rights activists in Chile.

The Foundation for Equal Families, a group promoting equal
treatment for same-sex couples, has filed suit against the
federal government of Canada, seeking implementation of recent
lawsuits that interpreted the Canadian charter to require equal
treatment for same-sex couples by adjustment of federal statutes
and programs.  The lawsuit targets 58 statutes that the
plaintiffs contend should be changed in light of recent court
decisions.  At least one official seems to have gotten the
message: Immigration Minister Lucienne Robillard announced that
the Immigration Department is proposing to extend to same-sex
couples the same immigration rights as married couples.  _Toronto
Globe and Mail_, Jan. 8. However, Prime Minister Jean Chretien
scotched rumors that the government would introduce sweeping
legislation to provide formal legal equality for same-sex couples
on Jan. 20, saying that such legislation is "not on the agenda of
the government at this time."  Chretien indicated that the
government is considering various ways of complying with the
spate of recent court rulings requiring equal treatment in
particular contexts.  _United Press International_, Jan. 20.

New South Wales, Australia, has enacted legislation giving the
same legal status to gay and lesbian couples as is extended to
heterosexual partners under the workers' compensation laws.  The
measure, which became effective Dec. 1, adopts the concept of a
de facto relationship, defined as "unrelated adult persons" who
live together in a genuine, continuing relationship where there
is mutual commitment, according to a news report by the _Sydney
Morning Herald_, Jan. 18.  The law already recognized unmarried
heterosexual couples in such relationships; the Dec. 1 change
extends eligibility to same-sex couples.  

The British Parliament is again considering a proposal to
equalize the age of consent for gay male sex with heterosexual
sex at 16 years.  A measure introduced by the Labour government
to achieve this end passed the House of Commons last year but was
rejected by the House of Lords.  The new measure Labour is
introducing this year adds a provision as a sop to the
homophobes: creation of a specific criminal offence "for teachers
and others in a position of care to make advances to their
charges, whtever their sexuality."  This is intended to address
the argument, voiced in the Lords, that lowering the age of
consent would encourage or permit teachers to initiate sexual
relations with their teenage students.  _Evening Standard_, Jan.
25.

A court in Zimbabwe has sentenced former president Canaan Banana
to ten years imprisonment with hard labor for "sodomy and
indecent assault."  Nine years of the sentence was suspended
provided that Banana pays 7,000 pounds compensation to the male
aide he was accused of subjecting to sexual abuse and the family
of a policeman reportedly shot by the aide for taunting him about
the affair.  President Robert Mugabe, who has made numerous
public comments disparaging homosexuals, has sought vigorous
prosecution of the case, but there is speculation that after
having received an appeal on Bananaþs behalf from South African
President Nelson Mandela, a gay rights supporter, Mugabe may end
up pardoning Banana from serving the remaining prison term.
_Daily Telegraph_ (from World Reporter), Jan. 19. 

The British Columbia, Canada, Supreme Court has ruled that a
section of the criminal code that outlaws possession of child
pornography violates Canada's charter of rights and freedoms and
is thus unconstitutional.  The decision in the case of John
Sharpe, released Jan. 15, apparently caused great outrage among
public figures in B.C., who called for the government to appeal. 
_Sharpe v. British Columbia_.  A.S.L.

Extortionate Gay Attorney Disbarred

A suspended attorney seeking damages in breach of a contract to
extort money from a closeted gay man was barred from practice by 
the New York Supreme Court, Appellate Division, Departmental
Disciplinary Committee for the First Judicial Department, on
December 3.  In the Matter of Yao, (680 N.Y.S.2d 546)

Respondent Richard Yao was admitted to practice law in New York
in 1985, but did not actively practice law.  In 1992, he extorted
a wealthy executive by threatening to tell the world the
executive was gay and had a former lover with AIDS, unless the
executive paid him $10,000 a month for life.  In 1995, after the
executive refused to make more than one payment, Yao, aided by
counsel, filed a $20 million lawsuit alleging that the executive
breached their "contract."  Yao swore to facts in a verified
complaint that established as a matter of law that he committed
extortion. 

New York County Supreme Court determined that the "contract" was
extortionate, dismissed the suit, and fined Yao $10,000 (the
maximum amount permitted under 22 NYCRR section 130-1.1) and his
counsel $1,000 as sanctions for instituting frivolous litigation.
The court stated that Yao "attempts to utilize his legal learning
as a sword to take advantage of those with whom he has homosexual
relations."

The established sanction for an attorney who has committed the
felony of extortion alone is disbarment.  In considering Yao's
sanction the court noted his prior criminal conviction for
aggravated harassment, and inferred financial distress as his
motive for extortion based on three Federal tax liens against
him.  Additional factors aggravating Yao's violation of the Code
of Professional Responsibility include his apparent lack of
remorse and failure to appear at his hearing.  Yao's default
denied the court any opportunity to cross-examine him on
allegations that he offered as mitigating evidence in an
affidavit alleging that he is a rape victim and that the
executive whom he is accused of extorting is "a sexual predator
who has a history of pouncing on younger innocent victims and
exposing them to the threat of HIV and AIDS."  _Mark Major_

Professional Notes

Therese M. Stewart, an openly-lesbian partner at the San
Francisco firm of Howard, Rice, Nemerovski, Canady, Falk &
Rabkin, was sworn in on Dec. 18 as the president of the Bar
Association of San Francisco.  In a Jan. 7 article, San
Francisco's _Bay Area Reporter_ hailed her as the "first openly
gay head of a major metropolitan bar association."  Stewart is a
1981 Boalt Hall law school graduate, who clerked for Judge
Phyllis Kravitch on the 11th Circuit Court of Appeals before
joining Howard, Rice.  She specializes in business litigation,
and chaired the BASF's Committee on Gay and Lesbian Issues in
1990-91.  She is also Vice President of the Legal Aid Society of
San Francisco.  

David Catania, an openly-gay member of the District of Columbia
City Council who is an associate at Akin, Gump, Strauss, Hauer &
Field L.L.P., is the subject of a profile in the Jan. 25 issue of
_National Law Journal_.  Catania is doubly "out" on the job: as a
gay man and a conservative Republican in a traditionally liberal
Democratic law firm, one of whose name partners is a former chair
of the Democratic National Committee. 

Barbra Kavanaugh, a member of Buffalo, New York's Common Council
since 1996, has been appointed to head the Western New York
Office of the New York State Law Department by Attorney General
Eliot Spitzer.  Kavanaugh, who is openly lesbian, practiced
public interest law for 12 years before going into politics, and
her experience is seen as particularly suited for heading the
Department's Buffalo office, which has traditionally taken a lead
in litigating public interest-type issues.  Kavanaugh was briefly
a candidate for the Democratic nomination for lieutenant-governor
last year.  _N.Y. Blade News_, Jan. 29.   A.S.L.

Announcements

Applications are due this month for the 1999 Lesbian and Gay Law
Association Foundation Hank Henry Summer Judicial Fellowship
program.  Under this program, a law student is selected to spend
the summer clerking in the chambers of a variety of lesbian/gay
and lesbian/gay-friendly state and federal judges in New York
City.  The fellowship provides a stipend to cover the student's
summer expenses.  For full details of application procedures,
contact LeGaL Administrator Danniel R Schaffer at 212-533-9118,
<le-gal@interport.net>.  Deadline for submissions is February 15.

The National Educational Foundation for Individual Rights (NEFIR)
administers several fellowship programs to provide financial
assistance to law students performing public interest work during
the summer.  Of particular interest to Law Notes readers would be
the Steven Block, Steven Richter, Roberta Achtenberg, and Mary
Morgan fellowships, which support lesbian/gay rights and AIDS
legal work in the San Francisco Bay Area.  Law students need not
be attending Bay Area schools to qualify, but the fellowships
support work to be done in that geographical region. 
Applications are due March 26.  For full details contact Kelly
Dermody at 415-956-1000 or via email at <kdermody@lchb.com, or
send a written request for an application to BALIF/NEFIR
Fellowship Program, PO Box 2602, San Francisco, CA 94126-2602.

Human Rights Campaign, a lesbian and gay rights political
organization headquartered in Washington, D.C., has announced its
Summer 1999 fellowship program.  There will be three full-time
HRC Fellows in the Washington office this summer.  Applicants
should have a strong academic record at an accredited American
law school and strong interpersonal, writing and research skills. 
These are not salaried positions, but HRC will help the selected
applicants apply for public interest grants from other funders. 
The deadline for submitting applications is March 8.  Applicants
should send a cover letter, resume, brief writing smaple, the
names of two references, and a copy of their law school grade
transcript, to: Anthony E. Varona, Esq., Chief Counsel, HRC, 919
18th St., N.W., Suite 800, Washington DC 20006.

AIDS & RELATED LEGAL NOTES

10th Circuit Rules Denial of Protease Inhibitors to Prisoners Does
Not Violate 8th Amendment

In a ruling that reverses a district courtþs sua sponte dismissal
of an HIV+ prisonerþs due process and 8th Amendment claims on
several points, the U.S. Court of Appeals for the 10th Circuit
ruled on Jan. 27 that the prisonþs refusal to provide a protease
inhibitor as part of his treatment to the prisoner does not
constitute "deliberate indifference" to the prisonerþs health and
well-being.  _Perkins v. Kansas Dept. of Corrections_, 1999 WL
33063.

Darren Perkins alleges that he has had AIDS since September 1993.
On January 27, 1997, he became angry with two prison guards and
spat on them when he went outside to the prison yard for
exercise.  Since then, he has been held in administrative
segregation, has been required to wear a face mask that covers
his entire head whenever he leaves his cell, and has been denied
all exercise outside his cell.  Perkins filed a pro se action
under 42 U.S.C. section 1983, claiming that these conditions
violate his right to due process of law as well as constituting
cruel and unusual punishment under the 8th Amendment.  Perkins
also alleges that although he is receiving two medications, AZT
and 3TC, the prison has denied him a protease inhibitor to
complete the cocktail treatment that is now state-of-the-art,
thus placing him at serious medical risk, inviolation of his 8th
Amendment right to medical treatment while incarcerated.  The
trial judge, acting sua sponte, dismissed all of his claims, and
he appealed.

In an opinion by Circuit Judge Porfilio, the court found that the
district judge erred in dismissing Perkinsþ claims about his
current conditions of incarceration.  In past cases, the court
has made clear that punishment for particular misbehavior in
prison may be imposed, but must bear some relationship to the
offense and may not be imposed solely to stigmatize somebody on
the basis of personal characteristics or conditions.  In this
case, Perkins has alleged that he is being treated differently
from other prisoners involved in spitting incidents solely
because he has AIDS.  Furthermore, the court has made it clear
that denial of exercise privileges for extended periods of time
may constitute cruel and unusual punishment due to the mental and
physical impact prolonged deprivation may have on prisoners. 
Thus, the rulings on these claims were reversed and remanded for
the district court to receive some response from the prison and
make appropriate findings of fact before ruling further.

However, the court rejected Perkinsþ 8th Amendment medical
treatment claim.  Under current 8th Amendment jurisprudence,
negligent medical treatment does not violate a prisonerþs rights,
the standard being a showing that prison officials are acting
with "deliberate indifference" to a prisonerþs medical condition
in a way that poses a serious threat to the prisonerþs health. 
In prior cases, the 10th circuit has held that "a prisoner who
merely disagrees with a diagnosis or a prescribed course of
treatment does not state a constitutional violation."

Perkins conceded that he is receiving treatment in the form of
AZT and 3TC, nucleosides that were commonly prescribed for AIDS
prior to the advent of protease inhibitors.  But Perkins,
apparently well-informed about treatment developments, is
concerned that continuing this treatment course without the
addition of a protease inhibitor creates the risk that his viral
infection will develop immunity to the drugs, and he has actually
stopped taking the two nucleosides.  The court, treating this as
a simple "disagreement" with the prisonþs medical staff over
treatment, could benefit from some education about current HIV
treatment theories. A.S.L.

Court Rules Employer Knowledge is Key Element in ADA Employment
Discrimination Suit

Granting a motion for summary judgment in _Pope v. Kaiser
Foundation Health Plan_, 1998 WL 865646 (E.D.Cal., Dec. 7), U.S.
District Judge Shubb found that lack of employer knowledge about
the plaintiff's HIV status was a fatal flaw for plaintiff's
discrimination claim under the ADA.

Stephen Pope, who is HIV+, began working as a pharmacy technician
in Kaiser's South Sacramento medical facility in March 1995, but
was demoted to a pharmacy clerk position after failing an
examination required by the employer.  After his health declined he
was placed on leave in January 1996, and was threatened with
termination if he could not resume work by August 1, but his
response to this threat resulted in an agreement for him to stay on
personal leave without pay or benefits.

Pope claimed discrimination based on disability under federal and
state law and sexual orientation under state law, and filed suit in
Sacramento County Superior Court.  Kaiser removed the case to
federal court and moved for summary judgment on Pope's claims. 
Pope based his discrimination claims on his demotion and various
actions by supervisors and co-workers which he interpreted as AIDS
or gay-phobic.

In ruling on the employer's motion, Judge Shubb found that Pope
qualifies as a person with a disability under the ADA, but would
not be considered qualified for protection for the period after his
went on leave.  Looking at the period prior to the leave, Shubb
found that Pope had failed to allege facts indicating that his
employer or co-workers knew that he was HIV+, commenting that he
had told two co-workers "in confidence" and did not recall telling
anyone else.  "Even though plaintiff took frequent medical leave,
of which defendant was aware, plaintiff has not indicated that his
supervisors, human resource personnel, any other managers, or union
representatives knew that he had HIV or that the medical leave
might be attributed to HIV," Shubb found.  "When an employer has no
knowledge of the disability, plaintiff cannot demonstrate that its
adverse action was discriminatory because of the disability."  

This analysis, of course, totally overlooks what appears to be the
real theory of Pope's case: that supervisors and co-workers
believed he had a disability, based on his perceived sexual
orientation, making this a possible case of what employment
discrimination law theorists have called "intersectionality," or
the confluence of two theories producing a hybrid cause of action. 
(The theory has had a mixed reception in the few cases in which it
has been advanced.)  

Shubb also found that Kaiser's actions placing Pope on leave and
then threatening termination did not violate the ADA because Pope
was no longer qualified to work at that point (noting that he had
applied for workers' compensation benefits and described himself at
his deposition as "totally and permanently disabled") and that
Kaiser was observing the terms of its collective bargaining
agreement governing leaves.  

Shubb also rejected an alternative claim of hostile work
environment.  While noting that courts have assumed there is a
cause of action for hostile work environment harassment under the
ADA, Shubb concluded that the incidents alleged by Pope were not
sufficiently severe and too isolated to count as the kind of
pervasive hostility and harassment that the Supreme Court has
required in sexual harassment cases.  In addition, Shubb noted that
many of the incidents cited by Pope concerned harassment based on
his sexual orientation, solely a state law claim in this context.

Having determined that summary judgment was appropriate on Pope's
federal claims, Shubb decided not to exercise supplemental
jurisdiction over Pope's state law claims, noting particularly that
Pope had not exhausted administrative remedies before filing his
lawsuit, and there is a lingering unsettled issue concerning
exhaustion requirements under Calif. Labor Code sex. 1102.1 (which
prohibits sexual orientation discrimination in employment).  A.S.L.

Hospital Counselor Not "Deliberately Indifferent" to Mental Health
Needs of PWA

U.S. District Judge Conaboy (M.D.Pa.) ruled Dec. 29 that a mental
health counselor employed by Community Counseling Services (CCS),
a contractor for the Luzerne County Prison in northeastern
Pennsylvania, did not violate the 8th Amendment rights of a prisoner
with AIDS by failing to respond to all the prisonerþs requests for
counseling.  _Hetzel v. Swartz_, 1998 WL 919629. The court also
ruled that the counselor did not violate the prisonerþs rights
under Pennsylvaniaþs HIV confidentiality law when he discussed the
prisonerþs medical condition with other medical personnel in the
prison.

Roy Hetzel was incarcerated in July 1994 on drug possession
charges.  While imprisoned, Hetzel had a blood test and learned for
the first time that he was both HIV+ and had "full blown AIDS."  He
was discharged on a compassionate basis due to failing health in
November 1995 and died May 30, 1996.  He married the woman with
whom he had been arrested (she served a shorter sentence) shortly
before his death.  While still incarcerated, Hetzel filed a pro se
civil rights complaint against CCS and Jim Swartz, the CCS employee
assigned to provide contract mental health counseling at the
prison, alleging that his repeated requests for mental health
counseling for depression and anxiety due to his AIDS condition had
been ignored and that his HIV-status had been inappropriately
revealed by Swartz to others in the prison, who thereafter shunned
Hetzel and denied him appropriate services.

Judge Conaboy had rejected the defendantþs attempts to get the case
dismissed, and held a trial at which both lay and expert witnesses
appeared.  Conaboy concluded that the experts were divided as to
whether Hetzel received appropriate care, but that the defendantþs
lay witnesses, and especially the defendant, were more credible
than the plaintiffþs witnesses in establishing what had actually
happened.  Conaboy found that under the circumstances Hetzel had
not established deliberate indifference to his condition; in fact,
Swartz had met with him for several counseling sessions, and
neither Swartz nor any other medical personnel at the prison had
concluded that Hetzel suffered from serious mental disturbance
requiring repeated counseling sessions.  Swartz testified that
Hetzel actually denied he needed mental health services, but
appeared to be trying to build a record to bring a lawsuit against
the prison.

Swartz also testified that he had only discussed Hetzelþs medical
condition with two prison employees, both involved in overseeing or
administering prisoner health care.

Conaboy concluded that summary judgment should be awarded to the
defendant.  A.S.L.

Prisoner Adequately Alleges "Deliberate Indifference" in Denial of
Treatment Claim

U.S. District Judge Carter (D. Maine) found in _McNally v. Prison
Health Services, Inc._, 1998 WL 858223 (Dec. 8),that an HIV+ jail
detainee had pleaded facts sufficient to state a constitutional
claim of improper denial of treatment under the Due Process Clause
of the 14th Amendment.

David McNally was arrested in early November 1997 under
circumstances resulting in some physical injury to him by the
police.  He was taken to a hospital for treatment before being
transported to the Cumberland County jail.  At the jail, he
revealed that he was HIV+ and requested that he be allowed to take
his medications.  Although McNallyþs doctor confirmed his
medication and dosage, the Prison Health Services organization
responsible for health care at the jail denied his request for
medication.  McNally was held in jail for three days without
medication before being released on bail, during which he claims he
suffered "terrible fevers, night chills and night sweats,
infections from the cuts and bruises inflicted by the arresting
officers, and psychological stress over being forced to endure a
potentially fatal deprivation of prescribed medication."  After
being released, he went to the hospital where he was kept for
several days for treatment to correct the problems ascribed to the
interruption of his medication.

Because McNally was a pretrial detainee rather than a convicted
inmate, his claim is governed by the Due Process Clause of the 14th
Amendment rather than the 8th Amendment, which applies only to
punishment imposed upon conviction.  However, in the First Circuit,
the courts have applied the same "deliberate indifference" standard
to such claims as they do to 8th Amendment medical treatment claims,
on the theory that pretrial detainees are entitled to at least the
same level of medical care as convicts.  Rejecting the defendantsþ
motion to dismiss the case for failure to state a claim, Judge
Carter found that McNally had successfully alleged facts sufficient
to support a claim of deliberate indifference.

Indeed, if McNallyþs allegations are borne out at trial, it looks
like an open and shut case.  He revealed to jail officials that he
is HIV+ and under medical treatment, which statements were
confirmed by his doctor.  It seems clear that interruption of
treatment for HIV infection can have very serious consequences,
including the development of drug-resistant viral strains and a
rapid increase in viral load, producing serious physical symptoms. 
Judge Carter found that McNallyþs allegations about the symptoms he
experienced were sufficient to have put the jail-keepers on notice
that he required medical attention.  At this point, the defendants
have alleged no reason for denying his medication, so at least
based on his allegations þ which provide the sole factual basis for
ruling on a motion to dismiss þ a case for deliberate indifference
appears obvious.  Of course, McNally still faces the hurdle of
establishing the truth of his allegations at trial.  A.S.L.

California Appeals Court Rules On Adoption of AIDS Orphans

The California 4th District Court of Appeal ordered that a
permanent plan to place orphaned sisters for adoption must depend
on a showing that adoptive parents fully informed of one sister's
HIV infection are "waiting in the wings." _In re Yuridia, Orange
County Social Services Agency v. Ana M._, 1998 WL 910152 (Dec. 31).

Before Yuridia and Endira's parents died of AIDS, their mother
nominated their grandmother Ana to be guardian of the sisters.  Ana
had been recognized as a de facto parent of the four and five year
olds; she sent them from her residence in Mexico to live with their
aunt Maria in the U.S. where Yuridia could receive treatment for
AIDS. The children were taken away from Maria when she was arrested
for willful child cruelty toward her own daughter; Endira told
social workers that Maria also hit her. The juvenile court
terminated all parental rights of either the aunt and uncle or the
grandparents, found both children adoptable and selected adoption
as their permanent plan. The opinion states that everyone involved
agrees that Yuridia and Endira are a "sibling pair" who should not
be broken up. 

The juvenile court found the children adoptable although no
prospective adoptive parents have been identified for Yuridia and
in face of the fact that the children's aunt, uncle and
grandparents all want them. Endira's foster family did not want to
adopt Yuridia, illustrating the appellate concern that "many
prospective adoptive parents . . . would prefer not to adopt a
child with the disease . . . given the vigilant administration of
medications currently required to stabilize AIDS patients and the
likelihood of an early death. . . "   

California code requires a finding of clear and convincing evidence
that a child "will be adopted" before parental rights are
terminated and adoption is selected as the permanent plan for a
child. While there is no statutory requirement that a potential
adoptive home be waiting in the wings, the appellate opinion holds
that since "there is no evidence that there are any prospective
adoptive parents outside the family who, having been fully informed
of the one child's medical condition and consequent needs, still
desire adoption . . . that absence means there is no `clear and
convincing' evidence that the children will be adopted. And given
the absence of such evidence, the net effect of the juvenile
court's order is to deprive them of the extended family who want to
adopt them in what may prove to be the chimerical hope that a
better arrangement will come along." 

Accordingly, the appellate court reversed and remanded for the
juvenile court to take additional evidence on the question of
adoptability.  If a fully informed prospective parent (other than
the family) is not waiting in the wings, then the court is to
appoint "at least one legal guardian for the children from the pool
of appropriate family members (either Maria and [husband], or Ana
and [husband], depending on which couple would be in the children's
best interests), assuming that no intervening reason has arisen
which would otherwise make them unsuitable.  The alternative would
potentially thwart the intent of the statute by permanently leaving
the children in foster care.  _Mark Major_

Florida Appeals Court Allows Defamation Suit by Model Against
Insurance Company to Continue

Reversing a motion to dismiss that had been granted by the trial
court, the Florida 4th District Court of Appeal ruled Jan. 20 in
_Facchina v. Mutual Benefits Corp._, 1999 WL 19185, that the so-
called economic loss rule, used to differentiate between tort and
contract claims, did not bar a defamation claim by a male model
whose photograph had been used in a national advertising campaign
by a viatical benefits company seeking to buy insurance policies
held by persons with AIDS.

Paul V. Facchina, Jr., alleged that he is a male model who is paid
for the commercial use of his image.  He claims that in 1994 he
made a contract with the defendant, a company that engages in the
business of "matching people interested in purchasing death
benefits of qualified life insurance policies from individuals
desiring to sell these benefits for their current, reduced cash
value."  Under the contract, Facchina agreed to "release" to the
defendant "the use of my photograph. . . for advertisement purposes
without further consideration.  Said advertisement shall be limited
to the sole purpose of purchasing life insurance policies and its
related interests."  

Facchina alleges that the defendant then used his photo in an
advertising campaign targeted to gay men with AIDS in such a way as
to imply that he, himself, is a gay man with AIDS.  In his
complaint, Facchina alleges that he was portrayed as a "`poster
boy' for homosexuals dying from AIDS."  Facchina claims to have
suffered "physical injury resulting from severe emotional distress,
including treatable gastrointestinal problems and treatable dental
damages due to nocturnal teeth grinding."

The defendants moved to dismiss Facchina's tort claims, arguing
that his only claims, if any, were for breach of contract.  The
trial court agreed, and dismissed all his torts claims, with this
appeal following.

Writing for the court, Judge Farmer found that there is legislative
authorization in Florida for this kind of suit under Section 540.08
of the Florida statutes, which authorizes suit "for any loss or
injury sustained" as a result of unauthorized commercial
publications of a person's "name, portrait, photograph, or other
likeness."  Here, Faccina's claim was not purely a tort claim, so
the judge-made doctrine under which purely economic loss is not
compensable in a tort action would not apply.  

"In light of the special purposes underlying ELR [the economic loss
rule], we have little trouble in concluding that plaintiff's
defamation cause of action is not barred by ELR.  By contracting
with defendant to allow the use of his likeness in specified
advertising, plaintiff could hardly have foreseen the need to
provide for remedies for a later defamatory falsehood concerning
him.  It would be unrealistic to hold defamation claimants to a
duty to provide for remedies by contract with potential defamers,
assuming they could be foressen."  The court also held that the
rule does not bar Faccina's breach of privacy claim.

Because the question was not before it at this stage of the case,
the court did not decide whether it is actually defamatory to
falsely impute that somebody is a gay man with AIDS.  A.S.L.

Illinois Court Rejects AIDS Phobia Claim

On Dec. 31, the Appellate Court of Illinois, 1st District,
dismissed claims for negligent infliction of emotional distress for
fear of exposure to HIV, finding that one must allege actual
exposure to HIV to make out such a claim.  _Doe v. Noe_, 1998 WL
909739.  The Appellate Court relied on _Majca v. Beekil_, 193
Ill.2d 407 (1998), in which the Supreme Court adopted the
actual-exposure requirement to claims based on fear of contracting
AIDS and held that "[w]ithout proof of actual exposure to HIV, a
claim for fear of contracting AIDS is too speculative to be legally
cognizable."  The court noted that the question of whether an HIV+
physician has a duty to disclose his or her HIV status to a patient
prior to performing invasive surgery, remains unresolved in
Illinois.  _Todd V. Lamb_ 

N.Y. Appellate Court Rules AIDS Phobia Claim Relates Back to
Initial Workers Compensation Claim

In _Crawford v. N.Y.C. Health and Hospitals Corp._, NYLJ, Jan. 21,
1999 (N.Y.App.Div., 3rd Dept., Jan. 14, 1999), the court
unanimously rejected an employer's argument that an AIDS phobia
claim raised in 1993 relating back to a 1987 incident was time-
barred under the two-year statute of limitations in New York's
Workers Compensation Law.

The claimant suffered a needlestick injury while working as a
dietary aid at one of the defendant's hospitals on Aug. 5, 1987. 
She filed a compensation claim premised on the loss of use of her
left arm for some period following the incident, and was awarded
benefits, with the case being closed by the Compensation Board in
Nov. 1988.  In March 1993, she moved to reopen the case, alleging
new physical complications as well as a claim for "consequential
posttraumatic neurosis or `AIDS reaction phobia'" resulting from
the 1987 needlestick.  The employer moved to bar this phobia claim
on limitations grounds.

The Workers Compensation judge denied the employer's motion.  On
this appeal, the court concluded: "Because evidence in the record
supports the conclusion that a relationship exists between the
subsequent claim for psychological injuries and the 1987 injury for
which there was a timely claim, the two-year limitations period set
forth in Workers' Compensation Law section 28 does not bar
amendment of the timely claim to include the latter injury." 
A.S.L.

AIDS Law & Society Notes

In determining whether someone has a disability within the meaning
of the Americans With Disabilities Act, does it matter whether the
condition at issue is medically correctable such that it does not
appear to substantially impair a major life activity?  The lower
courts are split on this question, which is of obvious significance
to people with AIDS in the time of protease inhibitors.  The
Supreme Court may resolve the split this term, having granted
certiorari in _Sutton v. United Air Lines Inc._, 130 F.3d 893 (10th
Cir. 1997), cert. granted, No. 97-1943 (1/8/99), and _Murphy v.
United Parcel Service_, 141 F.3d 1185 (10th Cir. 1998), cert.
granted, No. 97-1992 (1/8/99).  In both cases, the 10th Circuit
found no ADA protection on the ground that the alleged disabling
condition was medically correctable.  The EEOC has taken the
position that a condition should be evaluated without regard to
whether it is medically correctable.  The 6th Circuit agrees with
the 10th Circuit's position, but the 1st, 3rd, 7th, 8th, 9th and
11th Circuits have all agreed with the EEOC.  In a third case
granted review on Jan. 8, _Kirkingburg v. Albertson's Inc._, 143
F.3d 1228 (9th Cir. 1998), cert. granted, No. 98-591 (1/8/99), the
9th Circuit found that a truck driver with monocular vision is
protected by Title I, in contradiction to a ruling by the 5th
Circuit.

Denying certiorari in _Ford v. Schering-Plough Corp._, No. 98-529
(Jan. 11, 1999), the Supreme Court let stand a 3rd Circuit
decision, 145 F.3d 601, holding that Title III of the ADA, which
prohibits public accommodations discrimination on the basis of
disability, does not apply to discriminatory terms in disability
insurance policies sold to employers on behalf of employee groups.

The 9th Circuit has weighed in again on the estoppel issue dividing
the circuits under the ADA.  In _Lujan v. Pacific Maritime
Association_, 1999 WL 23128 (Jan. 22), a unanimous panel found that
the plaintiff's testimony in a social security disability
proceeding that he was "unable to work" did not preclude him from
pursuing an employment discrimination claim under the Americans
With Disabilities Act.  Said the court, "Lujan did not state in his
disability application that he is unable to perform any specific
tasks that are an essential function of every job for which he
would apply with PMA."  Consequently, the plaintiff could proceed
to show that the employer had jobs available which the plaintiff
could perform with reasonable accommodation.  This reaffirms a
prior circuit decision in _Johnson v. Oregon_, 141 F.3d 1361 (9th
Cir. 1998).  The Supreme Court has slated argument this term in a
case from another circuit, _Cleveland v. Policy Management
Systems_, which raises the same estoppel question.

Ruling on an interesting contract formation question, the U.S.
Court of Appeals for the 7th Circuit found that Alpha Therapeutic
and Abbott Pharmaceuticals had not made a binding contract
concerning Abbott's liability to Alpha in connection of the sale of
Abbott's division that manufactured "factor concentrate" in 1978. 
_Abbott Laboratories v. Alpha Therapeutic Corp._, 1999 WL 6936 (7th
Cir., Jan. 11).  Alpha in turn has been included in the class
action brought by HIV-infected hemophiliacs, and was entitled under
the terms of sale to indemnification from Abbott to the extent that
liability may be based on inventory of the product that was
transferred in the sale.  Abbott claimed that an agreement had been
reached in negotiating its liability to Alpha, but Alpha persuaded
the court that the agreement was only preliminary and not
contractually binding.

The ACLU announced settlement of a complaint to the Maine Human
Rights Commission on behalf of Patrick Biggers, a homeless man who
was turned out of a shelter in Ellsworth, Maine, due to his HIV
status.  Under the terms of the settlement, the shelter will adopt
an AIDS education program for its staff and extend a formal apology
to Biggers.  _ACLU News Release_, Jan. 15.  

The Court of Appeals of Ohio, 2nd District, ruled Jan. 22 in
_McDaniel v. Faust_, 1999 WL 22744, that the trial court correctly
ruled against the plaintiff in an AIDS phobia emotional distress
case involving a dentist.  The plaintiff, a patient of Dr. Faust,
learned that the dentist's office had been charged by the state
dental board with failing to use sanitized gloves while performing
dental work.  Plaintiff then allegedly developed severe emotional
distress, fearing she might contract AIDS.  Surprisingly, the court
did not impose sanctions on McDaniel's attorney for filing a
frivolous lawsuit.  The Ohio courts have consistently held that
AIDS phobia damages will not be awarded in the absence of showing
that the plaintiff was actually placed at risk through exposure to
HIV.

In a bitterly contested custody action, the N.Y. Appellate
Division, 4th Dept., has affirmed a trial courtþs decision to award
custody of two children to their HIV+ father rather than the
mother.  _Matter of Michael M v. Tanya E._, 1998 WL 954927 (Dec.
31).  The children were born in California in 1982 and 1986 and the
family moved to Rochester, N.Y., in 1989.  In 1990, the mother and
children moved out of the family residence.  In 1991, the court
ordered that mother not move the children from Monroe County
without obtaining court approval so that the father could maintain
visitation.  The mother asked to move the children back to
California and the court approved, provided she paid to send the
children back to Rochester for visitation.  Since then, there has
been continuous wrangling about visitation as the mother has
relocated to Kentucky and petitioned a Kentucky court to end
fatherþs visitation.  Kentucky abstained on the grounds that
jurisdiction over custody remained with the New York court, and the
New York court awarded custody to the father.  Without going into
the question of the fatherþs HIV-status, the Appellate Division
decision indicates that this factor was "considered" and that under
all the circumstances, especially the motherþs actions preventing
the father from exercising visitation, the trial court had
appropriately awarded custody to the father.

The Worcester, Mass., city council voted 7-4 against a proposed
needle exchange program on Jan. 26.  This reaffirmed a 1995 vote. 
Proponents of needle exchange programs as a means of combatting the
spread of HIV had hoped that intervening changes in membership of
the council would change the result, but to no avail.  _Worcester
Telegram & Gazette_, Jan. 27.    

The Poudre School District, in northern Colorado, has adopted a
policy that provides that HIV-infected students may be excluded
from participation in school athletics upon the recommendation of
an assessment team including the student's parents, public health
officials, and school administrators.  Yet another incentive for
HIV+ students in Poudre who want to play sports to conceal their
status from school officials.  Smart policy!  _N.Y.Times_, Jan. 16. 
A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES:

Calleros, Charles R., _Same-Sex Harassment, Textualism, Free
Speech, and_ Oncale_: Laying the Groundwork for a Coherent and
Constitutional Theory of Sexual Harassment Liability_, 7 Geo. Mason
L. Rev. 1 (Fall 1998).

Eckert, Laura, _Inclusion of Sexual Orientation Discrimination in
the Equal Credit Opportunity Act_, 103 Commercial L. J. 311 (Fall
1998).

Freeman, Michael, _How Should an English Court Respond to a Same-
Sex Union?_, [1998] Int'l Fam. L. 99 (Nov. 1998).

Hager, Mark M., _Harassment Law's Conflicted Course_, 49 Lab. L. J.
(CCH) 1225 (Dec. 1998).

Khaliq, Urfan, _Transsexuals in the European Court of Human
Rights:_ X, Y and Z v. UK, 49 Northern Ireland L. Q. 191 (Summer
1998).

Kier, Elizabeth, _Homosexuals in the U.S. Military: Open
Integration and Combat Effectiveness_, 23 Int'l Security No. 2, 5
(Fall 1998).

Milbank, Jenni, Review Essay: _Homophobic Violence_ by Gail Mason
and Stephen Tomsen; _Faces of Hate_ by Chris Cuneen, David Fraser
and Stephen Tomsen, 20 Sydney L. Rev. 502 (Sept. 1998).

Powell, H. Jefferson, _The Lawfulness of_ Romer v. Evans, 77 N. C.
L. Rev. 241 (Nov. 1998).

Pryke, Sam, _Nationalism and Sexuality: What Are the Issues?_, 4
Nations & Nationalism Pt. 4, 529 (Oct. 1998).

Ritter, Matthew A., _The Penile Code: The Gendered Nature of the
Language of the Law_, 2 N.Y.C. L. Rev. 1 (Spring 1998).

_Student Notes & Comments:_

DeMatteo, David S., _Welcome to Anytown, U.S.A. -- Home of
Beautiful Scenery (And a Convicted Sex Offender): Sex Offender
Registration and Notification Laws in_ E.B. v. Verniero, 43
Villanova L. Rev. 581 (1998).

Dorgan, Walter J., III, _The Cyberworld Cannot be Confined to
Speech That Would be Suitable for a Sandbox_, 29 Seton Hall L. Rev.
286 (1998).

Williams, S. Ashby, _Long Overdue: The Actionability of Same-Sex
Sexual Harassment Claims Under Title VII_, 35 Houston L. Rev. 895
(Fall 1998).

_Specially Noted:_

Oakland, California, attorney Frederick Hertz, whose practice
focuses on family law issues for same-sex couples, has written
_Legal Affairs: Essential Advice for Same-Sex Couples_, summing up
his experiences and providing wide-ranging practical advice.  The
book is a paperback original published by Henry Holt & Co.  ISBN 0-
8050-5224-0.  It is aimed more at lay readers than lawyers, but
lawyers working in this area may find the discussion useful. * * *
XXXVII Int'l Legal Materials 1101 (Sept. 1998) reports the opinion
of the South Africa High Court (Witwatersrand Division) in
_National Coalition for Gay and Lesbian Equality v. The Minister of
Justice_, a case challenging the South African sodomy law.

AIDS & RELATED LEGAL ISSUES:

Fluss, Sev S., Book Review of _Human Rights and Public Health in
the AIDS Pandemic_ by Lawrence O. Gostin and Zita Lazzarini, 5
European J. Health L. 337 (Sept. 1998).

Parmet, Wendy E., Book Review of _Human Rights and Public Health in
the AIDS Pandemic_ by Lawrence O. Gostin and Zita Lazzarini, 23 J.
Health Politics, Pol. & L. 1005 (Dec. 1998).

_Student Notes & Comments:_

Diegnan, Richard P., Jr., _Quasi-Governmental Immunity: Should
Organizations Receive Immunity for Charitable Works? --_ Snyder v.
American Association of Blood Banks, 29 Seton Hall L. Rev. 256
(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 Nebraska L. Rev. 206 (1998).

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