LESBIAN/GAY LAW NOTES
ISSN 8755-9021     March 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;
Courtney Joslin, Providence, Rhode Island; 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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LOUISIANA APPEALS COURT FINDS SODOMY LAW UNCONSTITUTIONAL

The frequently-challenged but heretofore unvanquished "crime
against nature" statute in Louisiana has been declared
unconstitutional as applied to "private, consensual, non-commercial
acts of sexual intimacy between individuals who are legally capable
of giving their consent" by a unanimous three-judge panel of the
Louisiana Court of Appeal, 4th Circuit.  _State v. Smith_, 1999 WL
74614 (Feb. 9, 1999).  The court's declaration is based on Article
I, Section 5 of the Louisiana constitution.

On September 24, 1995, Mitchell Smith met Yvonne Lauro in a bar in
Chalmette, Louisiana.  They had a drink together and drove to
another establishment, a lounge in New Orleans East, before going
to Jack's Motel, where they had sex.  Lauro claims she was raped
and sexually assaulted (including anal and oral sex).  Smith claims
they had consensual sex, limited mainly to oral sex.  After they
had sex, Smith drove Lauro home.  The following day, she contacted
the police with her story of rape and assault, and told the same
story to her boyfriend and others.  Smith was charged with rape and
aggravated crime against nature.  At trial before the Criminal
District Court in New Orleans, Judge Patrick G. Q          Quinlan evidently
found Smith's testimony more convincing than Lauro's, because he
acquitted Smith on the rape and aggravate crime against nature
charges, but as both parties testified that there was oral sex,
Quinlan convicted Smith of crime against nature and sentenced him
to three years in prison.  The sentence was then suspended, and
Quinlan imposed two years of probation and a fine.  Smith appealed,
challenging the constitutionality of the statute on a variety of
grounds.

The crime against nature statute, La. Rev. Stat. 14:89A(1), defines
a crime against nature as follows:  "The unnatural carnal
copulation by a human being with another of the same sex or
opposite sex or with an animal. . .  Emission is not necessary; and
when committed by a human being with another, the use of the
genital organ of one of the offenders of whatever sex is sufficient
to constitute the crime."

The court's opinion, by Judge Patricia Rivet Murray, quickly
disposes of Smith's argument that the statute is unconstitutionally
vague or overbroad.  A long history of judicial construction has
made it very clear that the reference to "unnatural carnal
copulation" is a euphemism for anal or oral sex, and courts have
routinely rejected vagueness challenges to crime against nature
statutes on the theory that everybody knows what was being
outlawed.  As to overbreadth, the court found that constitutional
challenges to overbreadth are "not appropriate `when the
impermissible applications of the challenged statute affect conduct
rather than speech,'" citing _Broadrick v. Oklahoma_, 413 U.S. 601
(1973).

As to privacy, however, the court found little difficulty in
finding a constitutional violation.  Unlike the federal
constitution, the Louisiana constitution has an express provision
on privacy, Art. I, Sec. 15, which "guarantees that every
individual shall be secure in his person against unreasonable
invasions of privacy."  This being the case, Louisiana courts have
found that the state constitution "affords even more stringent
protection of individual liberty" than the federal constitution. 
Reviewing prior privacy challenges to the statute, Judge Murray
found that they were either premised on federal constitutional
theories, or arose in cases involving public sex or public
solicitation, so the privacy question under the state constitution
had not previously been squarely presented.

"There can be no doubt," wrote Murray, "that the right of
consenting adults to engage in private non-commercial sexual
activity, free from governmental interference, is protected by the
privacy clause of the Louisiana Constitution.  La. Rev. Stat.
14:89A (1) is state action that imposes a burden on this
constitutionally protected right.  In order to determine if this is
a constitutionally permissible burden on the right to privacy, we
must employ a standard of strict judicial scrutiny.  Such an
intrusion on an individual's constitutionally protected right to
privacy is justified only by a compelling state interest.  In
addition, the state action must be no greater than that needed to
further only that compelling interest."

In this case, the government had actually provided no
justifications for the statute.  Although the attorney general was
notified of this pending appeal, the state's law department did not
file a brief in the case.  New Orleans District Attorney Harry
Connick Sr.'s staff argued the appeal primarily as a dispute over
the factual findings of the trial court and articulated no policy
justifications for the statute.  Thus, the court was left to its
own devices in imagining potential arguments, which it culled from
the state arguments described in recent sodomy law challenges in
Georgia, Tennessee and Kentucky.  Following the lead of those
courts, Murray found that none of the hypothetical justifications
were sufficiently compelling (or even rational) to justify the
invasion of a fundamental privacy right.

"The State has not suggested and this Court has not been able to
discern a benefit to the State that would warrant the unduly
oppressive invasion of an individual's constitutionally guaranteed
right to privacy imposed by La. Rev. Stat. 14:89A (1)," concluded
Murray, ruling that Smith's conviction must be reversed.

Smith is represented by Byrne W. Dyer, III, of Gretna, Louisiana. 
The prosecuting attorney, Tim McElroy, told the Associated Press
that an appeal to the Louisiana Supreme Court will be filed. 
A.S.L.
 
LESBIAN/GAY LEGAL NEWS 

Mississippi Supreme Court Rejects Custody Modification Petition
from Gay Dad

On Feb. 4, the Supreme Court of Mississippi affirmed the findings
of a Chancery Court denying the application of a gay father for
modification of a custody and visitation order in effect with
regard to his son.  _Weigand v. Houghton_, 1999 WL 47748.  David
Weigand had filed a petition for modification of the custody order
with respect to his son alleging a serious change in circumstances
supporting his application.

David and Machelle Houghton were divorced in 1987 in Kansas. 
Originally, they had joint custody of their minor child, but in
1988 the custody arrangement was modified giving Machelle
residential custody of the minor when David moved to California.
Machelle subsequently remarried and currently resides in
Mississippi with her husband, Jeff Houghton, and the minor child. 
Jeff is a convicted felon who had been arrested for hitting
Machelle in the face in the presence of the minor child.  In
another incident, Jeff was intoxicated and knocked out the window
of a car being driven by Machelle, also in the presence of the
minor child.  At one point, Machelle, Jeff and the minor child were
evicted from their apartment due to Jeff's violent behavior.  
Evidence presented at trial indicated that Jeff has a heavy drinker
who often mixed alcohol with prescription pain medicine.  Jeff did
not work due to a disability and Machelle worked two jobs to
support the family.  

David, on the other hand, owns his own home in California with his
life partner, Wayne Fields.  David admitted to being in a
homosexual relationship and admitted having engaged in anal and
oral sex with his life partner, but stated that this did not take
place in the presence of the minor child during visitation.

Evidence adduced at trial showed that David was a property manager
earning about $40,000 per year.  David and Wayne were in a
monogamous relationship for in excess of eight years.  Evidence
also showed that David had made every effort to provide for the
minor child.  David bought the child a personal computer and
software to encourage the child to enhance his writing skills. 
David also arranged for an 800 number so that the child could reach
him anytime he wished.  Moreover, David had offered to pay for the
child to go to private schools and he had spent a great deal of
time investigating schools in Mississippi and California which
could provide the child the best education.

The child, who was fourteen at the time of trial, expressed no
preference for which parent he wished to live with.  The child did
state to the Chancery Court that he was embarrassed when David and
Wayne showed affection for each other.

Judge James L. Roberts, writing for the Supreme Court, held that
the decision of the Chancellor could not be disturbed unless there
was a clear showing that he abused his discretion.  The Court then
went on to summarize the Chancellor's decision.  The Chancellor
found that the minor child exhibited no preference as to with which
parent he wished to reside.  The factor weighed in favor of
maintaining the status quo.  The Chancellor did find that
Machelle's employment responsibilities hindered her relationship
with the child and that David's work was more conducive to a good
relationship with the child.  Both parents were found to have great
love and affection for the child.  With regard to the incidents of
domestic violence in Machelle's home, the Chancellor found this
weighed in favor of awarding custody to David.  

However, the Chancellor was most troubled by the moral fitness of
the parents.  The Chancellor spent many pages of the decision
discussing the fact that David was openly gay and had admitted to
violations of Mississippi's sodomy laws.  Interestingly, as pointed
out in a strong dissent by Justice McRae, no inquiry was ever made
into whether Machelle had violated those same laws which apply
equally to heterosexuals and homosexuals.  Lastly, the Chancellor
emphasized the fact that Machelle had enrolled the child in
religious training, finding that this training weighed heavily in
favor of Machelle maintaining custody.

Based on these findings, the Chancery Court denied David's
application to obtain residential custody of the child and entered
an order indicating that Wayne could not be present during David's
visits with the child.

Justice Roberts found no reason to disturb the Chancery Court's
decision as to custody, but the court found that the Chancery Court
abused its discretion by putting limitations on David's visitation.

Justice McRae wrote a lengthy dissent in which he pointed out that
much of the Chancery Court's reasoning was based upon David's
homosexuality.  The dissent found it outrageous that the court
could find that the child was better off living in an explosive
environment with a stepfather who was a convicted felon, wife
beater, drinker, drug-taker, adulterer and child-threatener as
opposed to the stable environment provided for by the father.  The
dissent strongly argued that David's homosexuality was the only
reason the Chancery Court refused to alter the custody arrangement. 
The dissent also argued that the decision was so afoul of the best
interests of this child as to violate the Fourteenth Amendment.

David Weigand was represented by the American Civil Liberties Union
and volunteer attorneys Robert McDuff and Alison Steiner.  In
response to the decision, David Ingebretsen, Executive Director of
the ACLU of Mississippi, said that he was pleased that the court
overturned the visitation restrictions. "But," he added, "I am
perplexed that they decided that the public violent outbursts of
the stepfather were preferable to his natural father's private
relationship with his partner."  

In light of the dissent's comments about a possible constitutional
violation, thought is being given to attempting a U.S. Supreme
Court appeal. _Todd V. Lamb_

 South Africa Court Says Constitution Compels Recognition of Same-
Sex Couples Under Immigration Law

The High Court of South Africa's Cape of Good Hope Provincial
Division, in Cape Town, has ruled that the South Africa
Constitution's equality requirements are violated by the refusal of
the government to allow same-sex partners of South Africans to
settle in the country on the same basis as spouses of South
Africans.  _National Coalition for Gay and Lesbian Equality v.
Minister of Home Affairs_, Case No. 3988/98 (Feb. 12, 1999).  The
ruling must be confirmed by the Constitutional Court before it can
take effect.

The lawsuit was brought by a gay rights organization and a dozen
South Africans whose non-South African same-sex partners are
seeking to live with them in that country.  Under the Aliens
Control Act 96, marital spouses of South Africans may be issued an
immigration permit under section 25(5).  In addition, the Minister
of Home Affairs is authorized upon a finding of "special
circumstances" to "exempt any person or category of persons" from
the requirement of having an immigration permit, which effectively
allows the Minister to grant the right of legal residence for an
indeterminate period of time.  

Prior to the institution of this lawsuit, the Minister had actually
used this discretionary power on behalf of an increasing number of
same-sex couples, but ultimately the ministry decided that the
mounting numbers of applicants suggested that this could not be
considered a "special circumstance" and began denying them, as well
as proceeding against some same-sex partners with deportation
proceedings.

When the lawsuit was filed, the government attempted to delay the
proceedings by requesting more time to respond on the ground that
the matter was being taken up by the Cabinet.  However, continued
procrastination resulted in the court losing patience with the
government, and scolding it for failure to respond to the progress
of the case.  "Much as this court would have wished to have the
views of government before it," wrote Judge Dennis Davis, "it
cannot condone the disdain with which the respondents have treated
their obligations to the court.  Section 237 of the Constitution of
the Republic of South Africa Act 108 of 1996 provides that all
constitutional obligations must be performed diligently and without
delay.  Were there to be a constitutional obligation upon the
respondents to treat applicants with the same concern and respect
due to married persons, such an obligation should be performed
without delay and respondents should have acted so as to expedite
the resolution of this matter rather than to delay it."  Davis also
rejected the government's arguments that the matter was not ripe
for litigation or might be considered moot, before proceeding to
the merits.  

Davis found that the term "spouse" contained in the Aliens Control
Act could not be construed to include same-sex partners, so that
"other than spouses who have been married or are part of a
customary union, all forms of conjugal life partnerships are
excluded from the preferential treatment conferred in terms of
section 25(5)."  (The reference to "customary union" concerns
certain extra-legal heterosexual marital relations recognized among
the indigenous people living within South Africa.) 
Section 9(1) of the Constitution provides that everyone is equal
before the law in South Africa, and specifically lists sexual
orientation as a prohibited ground of discrimination.  The
Constitution Court has adopted a mode of analysis of discrimination
claims proceeding as follows: Does the law differentiate between
people or categories of people and, if so, does the differentiation
bear a rational connection to a legitimate government purpose? 
Even if such a connection is shown, the differentiation, if it
amounts to unfair discrimination, will be found to violate the
Constitution.

Relying upon the Supreme Court of Canada's decision in _Vriend v.
Alberta_, 50 CRR2d 1 (1998), Davis found that the prohibition of
unfair discrimination was based on a respect for diversity and a
desire to avoid the psychological harm that results from unequal
treatment.  "The Constitution seeks to promote a society in which
diversity of identity is respected and protected," Davis wrote. "In
other words, the constitution seeks to transform the nature of the
boundaries which previously determined the character of the South
African community." 

"The Act fails to meet this imperative," Davis asserted, as it
"prefers certain forms of life partnership over others.  In doing
so, it grants legal recognition to certain styles of life and
confirms the legal rejection of others.  In the context of the
constitutional commitment to a plurality of identity and that
everyone should be treated with equal concern and respect it must
follow that section 25(5) cannot be justified on the grounds of
fairness."

Davis also found that there "was no evidence before the court to
suggest that this breach of the guarantee against discrimination on
the grounds of sexual orientation could possibly be justified." 
Because the applicants were only challenging the statute's
exclusion of same-sex life partners, Davis limited the court's
holding to such people. 

The difficulty of providing an appropriate remedy consumed the
balance of the opinion.  The court had essentially three options. 
It could declare section 25(5) unconstitutional as a whole, but
this would only have the effect of eliminating the right of spouses
of South Africans to immigrate without curing the applicants'
problems.  The court might "read in" to the statute the inclusion
of same-sex partners.  As to this, Davis concluded that the court
was not in a position to engage in the essentially legislative task
of defining who among same-sex partners would qualify to be treated
on the same basis as marital spouses.  Finally, the court could
simply declare the existing arrangement to be unconstitutionally
discriminatory and stay the effect of its holding to give the
government sufficient time to amend the statute, while issuing
interim relief to protect the rights of same-sex couples pending a
final outcome.  

The court chose the third alternative.  The decision that section
25(5) violates the constitution's equality requirement, subject to
confirmation by the Constitutional Court, is recommended to be
delayed in taking effect for one year.  In the meantime, the High
Court ordered that the Ministry of Home Affairs resume its prior
practice of finding that applications from same-sex partners
present "special circumstances" justifying allowing the non-South
African partners to continue living in the country, working or
studying as the case may be, until this controversy is ultimately
resolved.  The court also ordered the government to pay the
plaintiffs' costs of litigation, including their attorneys fees.

Judges Conradie and Knoll stated agreement with Davis's opinion,
making it an order of the High Court which will now be taken to the
Constitutional Court, whose jurisdiction is limited to reviewing
the constitutional holding.  

Reacting to the decision, Zackie Achmat, Director of the Coalition
for Gay and Lesbian Equality, stated: "The judgment unambiguously
vindicates the position of the Coalition and these same-sex
couples.  The Department of Home Affairs has persistently acted in
a cruel and unjustifiable manner against lesbian and gay people. 
The sad history of this case is that lesbian and gay couples have
been harassed, detained and threatened with deportation for the
past two years.  This is typical of the high-handed and
bureaucratic bullying of all immigrants and refugees.  This
decision is the first step in holding the department accountable to
all people for its actions."  A.S.L.

 U.S. District Court Shuts Down COPA
      
United States District Court Judge Reed preliminarily enjoined the
enforcement of the Child Online Protection Act (COPA), which was
supposed to go into effect on November 29, 1998, and denied the
defendant Janet Renoþs motion to dismiss for lack of standing in
ACLU v. Reno, 1999 WL 44852 (E.D.Pa. Feb. 1), see also,  ACLU v.
Reno, 1998 WL 813423 (E.D.Pa. Nov. 23, 1998) (temporary restraining
order granted). This decision follows the very controversial ACLU
v. Reno I, 117 S.Ct. 2329 (1997), which struck down provisions of
the Communications Decency Act of 1996 (CDA) as violative of the
First Amendment. Both COPA and CDA were attempts by Congress to
regulate content and to prevent minors from accessing pornographic
material on the Internet.

The American Civil Liberties Union, representing a broad range of
individuals, entities, and organizations suing on behalf of their
members, who are speakers, content providers, and ordinary users on
the Web, brought this action. One such individual was Thomas P.
Rielly, founder and chairman of PlanetOut, a Web site directed to
developing an online community for gay, lesbian, bisexual, and
transgendered people. The  represented Web sites provide free
educational information that touch on sexual issues, sometimes with
but not necessarily in a pornographic manner. The plaintiffs
attacked COPA on several grounds: (1) that it is invalid on its
face and as applied to them under the First Amendment for burdening
speech that is constitutionally protected for adults, (2) that it
is invalid on its face for violating the First Amendment rights of
minors, and (3) that it is unconstitutionally vague under the First
and Fifth Amendments. The plaintiffs also framed their facial
attack to the statute as an overbreadth challenge, arguing that
speech will be chilled on the Web because the statute covers more
speech than it was intended to cover, even if it can be
constitutionally applied to a narrow class of speakers.

On the other side, Reno argued that COPA passed constitutional
muster because (1) the statute is narrowly tailored to the
governmentþs compelling interest in protecting minors from harmful
materials, (2) the statute does not inhibit the ability of adults
to access such speech or the ability of commercial purveyors of
materials that are harmful to minors to make such speech available
to adults, and (3) the statute provides affirmative defenses that
are technologically and economically feasible methods for speakers
on the Web to restrict the access of minors to harmful materials.
To  answer the plaintiffþs argument that COPA is overbroad, Reno
argued that the definition of "harmful to minors" materials did not
apply to any of the material on the plaintiffsþ Web sites. COPA
uses a community standard of decency set forth in Miller v.
California, 413 U.S. 15 (1973), to determine whether material is
pornographic.

On the plaintiffsþ motion for preliminary injunction, the court
heard five days of testimony and one day of argument on January 20
through 27, 1999.  Plaintiffs alleged that they would have suffered
or would imminently have suffered an injury and that the statute
offered a credible threat of present or future criminal
prosecution. The precautions set forth in COPA requiring age
verification and credit card access would diminish access to the
information and traffic on the sites and would also increase the
costs for operating the sites. Mr. Rielly, of PlanetOut, testified
that the Internet was a valuable resource for "closeted"  people
who do not voluntarily disclose their sexual orientation due to
fear of the reactions of others, because it allows closeted people
access to this information while preserving their anonymity.
PlanetOut provides a member form for users who would like to
register in order to receive free benefits, but it does not require
membership to access its site. PlanetOut contains some content of
a sexual nature, including chat profiles of users, at least one of
which included a photograph of a male with exposed genitals, and
Internet radio shows with "Dr. Ruthless" on topics such as anal sex
and masturbation. Rielly further testified that he predicted that
traffic to his site would drop off if he were to require credit
card or other age verification on PlanetOut; to support this
prediction, he noted that the traffic on a competitorþs site which
had placed its entire content behind a credit card wall and charged
users $10 per month only grew to 10,000 total users. 

The court, in considering this testimony and the effect of COPA,
held that COPA was presumptively invalid and subject to strict
scrutiny. The court reasoned that non-obscene sexual expression is
protected by the First Amendment. See Sable Communications of
California, Inc. v. FCC, 492 U.S. 115, 126 (1989). A statute which
has the effect of deterring speech, even if not totally suppressing
speech, is a restraint on free expression. See Fabulous Associates,
Inc. v. Pennsylvania Public Utility Commission, 896 F.2d 780, 785
(3d Cir. 1990). "A statute is presumptively inconsistent with the
First Amendment if it imposes a financial burden on speakers
because of the content of their speech." Simon & Schuster, Inc. v.
Members of the New York State Crime Victims Board, 502 U.S. 105,
115 (1991). Finally, when a speaker is faced with the unwelcome
choice of prosecution or self-censorship and/or using expensive
protective measures, e.g., credit card and age verification
services, a burden is placed on free speech, contrary to First
Amendment principles. See Erzoznick v. City of Jacksonville, 422
U.S. 205, 217 (1975).

Weighing this burden on free speech against the Governmentþs
compelling interest in protecting children, the court concluded
that the statute was not narrowly tailored and that the least
restrictive means were not used to achieve that goal. Despite
Congressþs good intentions, ". . . the goals of Congress could be
served without the imposition of possibly excessive and serious
criminal penalties, including imprisonment and hefty fines, for
communicating speech that is protected as to adults or without
exposing speakers to prosecution and placing the burden of
establishing an affirmative defense on them instead of
incorporating the substance of the affirmative defenses in the
elements of the crime."  See ACLU v. Reno, 1999 WL 44852 at 88. 

Though the Governmentþs interest in protecting children is
extremely important, reducing what is available on the Internet to
a level that is acceptable to children destroys the marketplace of
ideas that the Internet represents. Without the marketplace of
ideas, an important tool for seeking truth is lost. Whittling away
at the protection of the First Amendment for the "advantage" of
children today does not serve their interests tomorrow. The court,
in its decision, has struck a great victory for the First Amendment
and lesbian and gay interests, allowing a free flow of information
to those people who would otherwise not have access. Preserving the
anonymity of Internet users allows the marketplace of ideas an even
greater advantageþthat all ideas may be expressed without the
consequence of censorship or prejudice.  _Leo L. Wong_

 The Fourth Circuit Upholds Gag on Virginia State Employees

In Urofsky v. Gilmore, 1999 WL 61952 (4th Cir. Feb. 10), the U.S.
Court of Appeals for the 4th Circuit reversed the district court and
upheld a Virginia statute restricting state employees from
accessing sexually explicit material on computers that are owned or
leased by the state. Under the law, state employees may access,
download, print or store sexually explicit material on their work
computers only if they receive written approval from an agency
head. Such approvals are made available to the public and will be
granted only if the agency head deems such access to be required in
connection with a bona fine research project. The suit challenging
the statute was brought by the American Civil Liberties Union and
the ACLU of Virginia on behalf of six university professors,
claiming that the statute violated their First Amendment right to
freedom of expression.

In a well-reasoned opinion, the district court for the Eastern
District of Virginia struck down the statute, holding that it
infringed on state employees' First Amendment rights. The court
held that Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct.
1731, 20 L. Ed.2d 811 (1968), set forth the appropriate standard
for reviewing restrictions on the speech of government employees.
Under Pickering, a court must balance the interests of the employee
as a citizen, in "commenting upon matters of public concern and the
interests of the State, as employer, in promoting the efficiency of
the public services it performs through 
its employees." Id. at 568. Applying the Pickering standard, the
district court held that, because the Act defined the term
"sexually explicit" so broadly that much of the restricted speech
could "be expected to be of benefit to the public," the statute
restricted speech on "matters of public concern."

Weighing against the state in the Pickering balance was the fact
that the Act's broad restrictions were prospective in nature, and
that the Act discriminated on the basis of the content of the
speech. On the other side, the court noted that, in addition to
considering the rights of state employees, the court must consider
the First Amendment rights of the "public to receive and benefit
from the speech of the state employees."

The court next proceeded to analyze the interests proffered by the
Commonwealth, that the restriction was necessary to: "(1) maintain
operational efficiency in the workplace; and (2) prevent the
creation of a sexually hostile work environment." While
acknowledging the legitimacy of these concerns, the court,
nevertheless, held the statute unconstitutional on the ground that
it was "both fatally overinclusive and underinclusive," evincing an
"obvious lack of 'fit.'" Furthermore, state employees were already
subject to content-neutral policies and statutes that addressed
these concerns. 

The Act was underinclusive because it targeted only workplace
distractions which were sexual in nature, and was overinclusive in
that it restricted speech on sexual information that was not
necessary to prevent sexual harassment or a sexually hostile work
environment. The court rejected the Commonwealth's argument that
the statute imposed only a minimal burden because the Act provided
for an approval process by which state employees would be allowed
to access sexually explicit materials. Rather than viewing this
approval process as a saving grace, the court explained that this
provision merely granted broad discretion to the government, and
that this discretion "reinforce[d] our belief" 
that the regulations were impermissible. 

In a short opinion, the Fourth Circuit reversed. Judge Wilkins,
joined by Judge Luttig, authored the majority opinion. The 4th
Circuit agreed that Pickering was the appropriate standard, but
disagreed with the district court's determination that the Act
regulated matters of public concern. 

Using an illogical argument that could have sweeping effects on the
speech of public employees, the Williams wrote that the speech of
a public employee in his or her capacity as an employee can never
constitute speech on a matter of public concern, stating: "The
essence of Plaintiffs' claim is that they are entitled to access
sexually explicit material in their capacity as state employees.
Because Plaintiffs assert only an infringement on the manner in
which they perform their work as state employees, they cannot
demonstrate that the speech to which they claim entitlement would
be made in their capacity as citizens speaking on matters of public
concern."

This determination essentially ended the Fourth Circuit's inquiry
because, according to the court, "[i]f a public employee's speech
does not touch upon a matter of public concern, the Commonwealth,
as employer, may regulate it without infringing any First Amendment
protection." As such, the court concluded: "The Act regulates the
speech of individuals speaking in their capacity as Commonwealth
employees, not as citizens, and thus the Act does not touch upon a
matter of public concern. Consequently, the speech may be
restricted consistent with the First Amendment."

The court disposed of several important claims by way of terse
footnotes. Without explanation, the court disposed of plaintiffs'
claim that the Act was overbroad and held that a prior 4th Circuit
opinion, _Boring v. Buncombe County Bd. of Education_, 136 F.3d 364
(4th Cir.)(en banc), cert. denied, 119 S. Ct. 47 (1998), foreclosed
the plaintiffs' academic freedom claim. Finally, again without
explanation, the court simply declared that "the Act [was] not
unconstitutionally vague because it [gave] a 'person of ordinary
intelligence a reasonable opportunity to know what is prohibited.'"

Judge Hamilton, who had dissented in Boring, filed a short
concurrence. He explained that "left to [his] own devices, [he]
would hold that the Plaintiff's speech in this case [was] entitled
to some measure of First Amendment protection," but felt
constrained by _Boring_ to concur. Judge Hamilton also wrote
separately in order to "make clear that we leave unanswered the
question of whether a governmental employee who seeks to access and
disseminate sexually explicit materials rising to the level of
matters of public concern, not in his or her role as a governmental
employee, but rather as a private citizen, is entitled to some
measure of First Amendment protection."

The plaintiffs are considering whether to request a rehearing en
banc or appeal to the Supreme Court. In addition to litigation
efforts, there has also been work on the legislative level. Kent
Willis, Executive Director of the ACLU of Virginia, noted that the
4th Circuit's opinion was released two days after the Virginia
House of Delegates voted 99-0 to pass a bill repealing the law.
"The Virginia General Assembly reacted sensibly to our lawsuit by
directing a new bipartisan science and technology commission to
come up with a reasonable alternative to the censorship scheme," he
said. "We hope that the Senate 
side will follow the lead of the House and the sound advice of the
science commission and not be influenced by this illogical circuit
court ruling." 

A New York Times editorial criticizing the Fourth Circuit's opinion
stated that "better options exist * * * Virginia [could] prohibit
state employees from using office computers for non-job-related
purposes, without resorting to a content-based distinction that
hurts free speech and limits the legitimate use of computers by
educators." _Courtney Joslin_ 

 7th Circuit Rules on Post-_Oncale_ Same-Sex Harassment Claim Under
Title VII

In _Shepherd v. Slater Steels Corp._, 1999 WL 80735 (Feb. 19), the
U.S. Court of Appeals for the 7th Circuit has reversed a grant of
summary judgment to the employer in a same-sex sexual harassment
case, opining that this post-_Oncale_ case presented factual issues
about the motivation of the harassment that should not be decided by
the court on a summary judgment motion.  The opinion sheds some
light on how the lower courts may deal with same-sex harassment
claims in light of last term's Supreme Court opinion holding that
same-sex harassment claims can be brought under Title VII provided
that the plaintiff can show that the harassment was because of the
plaintiff's sex.

Lincoln Shepherd alleged that he was subjected to severe, pervasive
sexual harassment by a co-worker, Edward Jemison, and that his
complaints to management did not produce any resolution of the
problem.  When the events at issue occurred, Jemison was 64 years
old and Shepherd was much younger.  Shepherd claimed that Jemison
began to harass him around November 1995, the alleged harassment
beginning with Jemison commenting that Shepherd was "a handsome
young man" and escalating to Jemison frequently playing with his
genitals (both clothed and unclothed) in Shepherd's presence and
making comments about having sex with Shepherd.  In one incident,
Shepherd alleged that while he was lying face-down on a bench in the
work area to alleviate stomach cramps, Jemison stood over him,
"rubbing himself into an erection," watching Shepherd, and then
saying, "If you don't turn over, I'm liable to crawl up on top of
you and fuck you in the ass."

Shepherd alleged that after he complained to management, Jemison
actually escalated the harassment with a variety of crude comments
and gestures.  Ultimately, in March 1996, an incident occurred when
Shepherd alleged that Jemison provoked him into fighting, and both
men were discharged as a result of the fighting incident.

Shepherd sued under Title VII, alleging sexual harassment and
retaliation.  He contended that he was discharged in retaliation for
his complaints about Jemison's conduct.  The evidentiary record
before Chief District Judge William C. Lee (N.D. Indiana) included
Shepherd's deposition and an affidavit in opposition to the motion
for summary judgment, as well as testimony from two other male
employees indicating that Jemison had also exposed his genitals to
them in similar circumstances to Shepherd's allegations, as well as
some evidence that Jemison had also exposed himself to a female
employee.  Judge Lee concluded that Shepherd was not being harassed
because of his sex, and that the discharge was for fighting, not
retaliation for his complaints, and granted summary judgment to the
employer.

Reversing as to the sexual harassment claim in an opinion by Circuit
Judge Rovner, the court focused on a major issue left open by
_Oncale_: what exactly constitutes harassment "because of the sex"
of the plaintiff.  As Rovner conceptualized the issue for the court,
"Can one reasonably infer from the evidence before us that the
harassment Shepherd describes was discrimination `because of' his
sex?"  Based on _Oncale_, Rovner commented that harassment need not
be motivated by sexual desire in order to be actionable, and stated
also that "it is clear that the sexual content or connotations of
workplace harassment do not automatically render that conduct sex
discrimination."  (This contradicts a holding by a different 7th
Circuit panel in _Doe v. City of Belleville_, 119 F.3d 563 (7th Cir.
1997), which was vacated for reconsideration by the Supreme Court
after _Oncale_.)  

Rovner also commented that _Oncale_ "demonstrates that there is no
singular means of establishing the discriminatory aspect of sexual
harassment.  So long as the plaintiff demonstrates in some manner
that he would not have been treated in the same way had he been a
woman, he has proven sex discrimination."  In this case, that means
providing facts from which a fact-finder might conclude that
Jemison's behavior towards male co-workers is different than towards
female co-workers.  

When the form of the harassment is sexual solicitation, the most
direct way to prove motivation is to show that the harasser is
lesbian or gay, Rovner commented.  In this case, there was no direct
allegation by Shepherd or other witnesses about Jemison's sexual
orientation.  However, wrote Rovner, "There is evidence in the
record that Jemison's harassment of Shepherd was borne of sexual
attraction," including his comments and gestures.  "Although none of
these incidents necessarily proves that Jemison is gay. . ., the
connotations of sexual interest in Shepherd certainly suggest that
Jemison might be sexually oriented towards members of the same sex. 
That possibility in turn leaves ample room for the inference that
Jemison harassed Shepherd because Shepherd is a man." While a fact-
finder might interpret the evidence differently, Rovner asserted
that in ruling on a motion for summary judgment before trial, it was
not appropriate for the district court to attempt to resolve this
factual issue.  Where the plaintiff's allegations could give rise to
alternative explanations, a determination of the facts should follow
a trial where a fact-finder could hear from relevant witnesses and
judge credibility.  

Referring again to _Oncale_, Rovner commented: "Whether the sexual
content of the harassment is indicative of sex discrimination must
therefore be examined with attention to the context in which the
harassment occurs. . . [When] the context of the harassment leaves
room for the inference that the sexual overlay was not incidental --
that the harasser was genuinely soliciting sex from the plaintiff or
was otherwise directing harassment at the plaintiff because of the
plaintiff's sex -- then the task of deciding whether the harassment
amounts to sex discrimination will fall to the finder of fact."

The one fly in the ointment was the evidence in the record that
Jemison may also have harassed a female employee with sex come-ons. 
Rovner noted an "obvious hearsay problem" with this evidence, and
said that based on the record, it was not clear that Jemison had
"harassed women at the Slater plant in the same way and to the same
degree that he allegedly harassed Shepherd. . . .  As the record
presently stands, the finder of fact could permissibly conclude that
Jemison harassed Shepherd sexually because he is male. Shepherd is
therefore entitled to a trial on his claim of sex discrimination."

Dissenting, Circuit Judge Bauer asserted that "the undisputed facts
show that the hostile work environment was not a gender-based
hostility.  The obnoxious, crude and outrageous behavior the
plaintiff complains of was directed at male and female alike; it was
offensive to male and female alike.  It is even offensive in the
repeating. Nevertheless, Shepherd has failed to meet the requirement
of a prima facie sexual harassment case based on a hostile work
environment."  

The court affirmed the district court in granting summary judgment
on the retaliation claim, finding that Shepherd's discharge was for
fighting, not for complaining about sexual harassment.  A.S.L.

 8th Circuit Reinstates Same-Sex Harassment Claim Against Postal
Service

The U.S. Court of Appeals for the 8th Circuit reinstated a jury
verdict against the U.S. Postal Service in a Title VII same-sex
sexual harassment suit.  _Bailey v. Runyon_, 1999 WL 55233 (Feb. 8). 
Plaintiff George Bailey alleged that his supervisors failed to
discipline a male co-worker who had made habitual, unwelcome sexual
advances towards Bailey from April to November of 1993.  The
district court concluded that the Postal Service had taken
sufficient remedial action to end the harassment, and granted the
Postal Service's post-verdict motion for judgment as a matter of
law.  The 8th Circuit panel unanimously reversed, concluding that
the Postal Service was liable under Title VII because it waited over
four months to act on the plaintiff's complaints.

Shortly after Bailey began working at a post office in March of
1993, co-worker Bob Tylon began soliciting him for sex on a regular
basis.  Bailey advised Tylon that he was not gay, and that Tylon's
advances were not welcome.  In April, Bailey complained to his
supervisor, Valerie Ellms, after Tylon persisted to question Bailey
about oral sex.  According to Bailey, Ellms laughed and took no
official action to address the situation.  Four months later, Bailey
filed a written complaint with Ellm's supervisor after Tylon grabbed
Bailey's crotch twice and made other explicit sexual advances. 
Tylon was warned to stay away from Bailey, and was told that future
inappropriate conduct would result in "drastic" action.  Tylon
defied this warning and exposed his genitals to Bailey one month
later in the men's lavatory.  After Bailey filed a second written
complaint, Tylon's work assignment was changed.  Tylon was also
warned that any future contact with Bailey would result in his
termination.
      
Bailey argued that he suffered mental anguish as a result of Tyson's
conduct, and had to consult with a counselor for anxiety attacks and
anti-depressants.  However, Bailey admitted on cross examination
that while he was being treated by his family physician during that
time period, he never related his symptoms to the alleged on-the-job
harassment.  Bailey also admitted that he did not begin seeing a
counselor until almost a year after the alleged harassment, and then
complained that his anxiety attacks were related to public speaking,
not Tylon's conduct.

The jury returned a verdict in favor of the Bailey on liability, but
found that he had not suffered any damages. The district court
granted the defendant's motion for judgment as a matter of law,
concluding that the Postal Service took appropriate steps to correct
the situation by warning Tylon, changing his job duties and
threatening him with termination.  The trial court denied as moot
plaintiff's motion for a new trial as to damages.

In an opinion by Circuit Judge Ross, the panel ruled that there was
sufficient evidence in the record to support the jury's verdict
against the Postal Service.  According to the court, the plaintiff
had to show that the Postal Service "knew or should have known of
the harassment and failed to take proper remedial action."  The
court found that although the Postal Service eventually did take
action to discipline Tylon, it came only several months after
plaintiff made his first complaints to Ellms.  Since Ellms did not
act on Bailey's complaints, but allowed Tylon's inappropriate
behavior to continue unchallenged for four months, there was
evidence to support the jury's verdict that the Postal Service "knew
of Tylon's conduct, but failed to put a stop to it promptly."

The case was remanded to the district court with instructions to
hear Bailey's motion for a new trial on damages.  The panel
mentioned that during oral arguments on appeal, the Postal Service
conceded that the plaintiff would be entitled to nominal damages and
attorney's fees if the jury's verdict were reinstated.

This is the first 8th Circuit case to address same-sex sexual
harassment since the Supreme Court ruled in 1998 that such
harassment is actionable under Title VII.  _Ian Chesir-Teran_

 Homophobic Harassment Not Actionable Under Title VII

Granting a motion for summary judgment in favor of the employer in
_Klein v. McGowan_, 1999 WL 88828 (D. Minn., Feb. 16), U.S. District
Judge Frank found that allegations of homophobic harassment did not
state a claim under Title VII of the Civil Rights Act of 1964.

Josh Klein worked for 16 years as a communications technician aide
in the Hennepin County Sheriff's Department, until he retired in May
of 1996.  In August 1997, he filed suit, alleging that throughout
his period of employment he had been subjected to sexual harassment
by various supervisors and co-workers, including the present and
former Sheriffs.  The original complaint specified discrimination
claims under federal and state law, as well as tort claims, but on
this motion the focus was on the Title VII claim.  Klein alleged
that at his first meeting with one of his supervisors, he was told:
"If I ever find out you're queer, I'll fire you." Subsequently, he
was called "homo" by another employee and subjected to a variety of
petty harassment from supervisors and staff.  Finally, after putting
up with this for many years, Klein decided to retire.

Judge Frank first found that none of the specific incidents of
homophobia alleged by Klein had occurred within 300 days of his
filing of charges with the EEOC, consequently, the Title VII claim
was barred by the statute of limitations.  Nonetheless, Frank
proceeded to devote the bulk if the opinion to explaining why Klein
had failed to allege facts sufficient to support a prima facie case
of sexual harassment under Title VII.  

First, Frank found that Klein's allegations did not describe conduct
sufficiently severe or pervasive to meet the standard for actionable
harassment established by the courts.  "Admittedly, viewing the
evidence most favorably to Plaintiff, the conduct alleged went
beyond mere teasing or offensive comments.  However, the fact that
there was cultural intolerance, a lack of decency and civility, and
even outright offensive conduct, is insufficient to implicate Title
VII. . .  Having examined the totality of the circumstances, the
Court concludes, as a matter of law, that the behavior alleged by
Plaintiff, while undoubtedly offensive, rude, and at times
culturally intolerant, did not constitute actionable harassment
under Title VII."

More to the point, however, and reflecting on one of the big open
questions for lesbian and gay employees in the wake of last term's
Supreme Court decision in _Oncale_, Frank found that Klein's
allegations failed to support the essential element that the
harassment was based on Klein's sex.  "The workplace at issue here
was almost entirely male," wrote Frank, "and there is no allegation
that anyone other than Plaintiff was subjected to the allegedly
harassing conduct.  Thus, Plaintiff cannot meet the burden of
showing that one sex was treated differently than another sex in
this case."

Frank specifically rejected the idea that harassment of a sexual
nature aimed at somebody perceived to be gay can be considered
harassment "because of sex."  "Plaintiff attempts to circumvent the
comparison between the way males and females were treated at the
Division by claiming that the alleged harassment was indeed based on
sex because it was based on `the sexual aspect of [Plaintiff's]
personality.' The implication of this claim is that Plaintiff was
harassed because he was perceived as being a homosexual.  However,
it is well settled that Title VII does not recognize a cause of
action for discrimination based on sexual orientation. . . .  Of
course, Plaintiff does not claim that the harassment stems from
animus toward his perceived homosexuality. Instead, he argues that
there is a difference between `the sexual aspect of [Plaintiff's]
personality' and Plaintiff's sexual orientation, and, further, that
`the sexual aspect of [Plaintiff's] personality' is equivalent to
Plaintiff's sex for the purposes of Title VII's `based on sex'
analysis."

"The Court declines to equate the sexual aspect of Plaintiff's
personality with Plaintiff's sex for the purposes of Title VII. . .
. [If] gender and sex were equivalent under Title VII, Title VII
would prohibit the harassment of a male because of effeminate
behavior or the perception that he is gay.  However, Title VII
clearly does not prohibit harassment based on the victim's
sexuality. Moreover, . . . the Supreme Court . . .  vacated a
decision of the Seventh Circuit in which that court approved of the
`gender' approach, thus raising serious doubts about whether that
approach is viable.  _See City of Belleville v. Doe_, 118 S.Ct. 1183
(1998), vacating 119 F.3d 563 (7th Cir.1997)."

Thus, at this court is reading the Court's action in vacating _City
of Belleville_ together with its insistence in _Oncale_ that the
plaintiff must show that the harassment is "because of sex" as
ruling out coverage for homophobic harassment under Title VII. 
A.S.L.


 Wife's Belief That Husband Had Gay Affair Insufficient to Justify
Living Apart

The Appeals Court of Massachusetts held that appellant Geraldine
Dunn, seeking a spouse's retirement plan death benefits by claiming
that she and her spouse had been living apart for "justifiable
cause," had to show her husband's actual marital misconduct,
contrary to an administrative magistrate's conclusion that "... the
fact that Ms. Dunn reasonably believed that her husband was bisexual
and committing adultery provides justifiable cause for living
apart." _Dunn v. Contributory Retirement Appeals Board_, 1999 WL
79850 (Mass.App.Ct., Feb. 22).  The court acknowledged ambiguity in
the governing statute, G.L. c. 32, Sec.12(2)(d), in the words
"living apart for justifiable cause," which could plausibly be read
to refer either to an objectively reasonable belief in the other
spouse's misconduct, or to actual marital misconduct.  Finding no
authority on point defining justifiable cause,  the court reasoned
that the definition could be found in domestic relations law where
"justifiable cause" is a term of art that "has long required proof
of actual marital misconduct."

The magistrate below entered findings crediting Ms. Dunn's belief
that her deceased spouse had been having a sexual relationship with
a male friend named Larry.  Dunn had never caught the two men _in
flagrante delicto_, basing her inference of the affair on "long
periods of estrangement, an aggregation of incidents of suspicious
behavior involving personal hygiene and undergarments, a succession
of clues that convinced Geraldine Dunn her husband was spending
inordinate amounts of time with Larry, and various remarks by her
husband suggestive of an obsession with homosexual behavior."  

Opposing Dunn's claim was Shelby Reno, whom Mr. Dunn described as
his fiancee on a change of beneficiary form five months before his
death.  At trial Reno testified to Mr. Dunn's heterosexuality. 
Larry also testified, denying any sexual affair with Dunn and
stating that "he had been (and still was) happily married to his
wife of thirty-four years and that his relationship with Dunn was
only that he was one of a number of boat owners who, like Larry,
spent substantial amounts of time hanging around the docks."

The Appeals Court reversed and remanded the case to the retirement
appeals board to evaluate the witnesses' credibility and make a
finding on the factual question of marital misconduct.  _Mark Major_

 8th Circuit Upholds Exclusion of Student Groups from Intervention
in Activity Fee Case

In _Curry v. Regents of the Univ. of Minnesota_, 1999 WL 42242 (Feb.
1), the U.S. Court of Appeals for the 8th Circuit affirmed a
decision to prevent three student groups from intervening in a case
that threatens the University's mandatory student activity fee. 
Matthew Curry and four other students allege that the University
violated their First Amendment rights by forcing them to contribute
mandatory student fees to campus organizations "engaging in
ideological or political advocacy with which the plaintiffs
disagree."  The Queer Student Cultural Center (QSCC), La Raza
Student Cultural Center (La Raza) and the University Young Women
(U-YW) all petitioned to intervene in the case to protect their
interests as funded student organizations that engage in such
activity.  

Magistrate Judge Jonathon Lebedoff denied the motion to intervene as
of right, concluding that the student groups had not shown that they
possess a legally protectable interest, and that even if they did,
the named Defendant, the University of Minnesota, could adequately
represent their interests.  The Magistrate Judge also denied their
motion for permissive intervention, finding that the intervening
student parties would interject collateral issues into the
litigation.  The student groups were permitted, however, to
participate as Amici Curiae.  U.S. Chief District Judge Magnuson (D.
Minn.) affirmed the Magistrate's decision, and the student groups
appealed.

The 8th Circuit panel, in an opinion by Chief Judge Bowman, reviewed
the petition to intervene as of right de novo, and determined that
three different grounds warranted denying the intervention.  First,
the panel found that the students have no interest in the amount of
money they actually receive.  The students claimed that, under
_Rosenberger v. University of Virginia_, they are entitled to
receive funding on a viewpoint neutral basis.  While agreeing with
that general point, the panel found that the students' "interests in
receiving viewpoint-neutral funding from the mandatory fee system
and participating in expressing activities are not threatened by the
plaintiffs' complaint."  The panel determined that the only interest
the students have is in the level of funding that they receive from
the University.  However, the students "have no constitutional or
legal right to compel unwilling students to provide financial
support for their activities."  In the absence of a legally
cognizable right, the student groups lacked standing to join the
litigation.

Second, the students did not demonstrate that the University would
not adequately represent their interests.  The students claimed that
their interest in protecting their First Amendment expressive
activities is distinct from the University's interest in upholding
the current fee system generally.  The panel refused to recognize a
distinction, however, noting that the students "potentially may lose
funding, however, only if the fee system is not upheld."  So even
though the students and the University may have different motives
throughout the litigation, their interests were the same, and
intervention was not warranted.

Finally, the panel relied on the doctrine of parens patriae, which
holds that when a government entity is a party to a case in a matter
of sovereign interest, the government is presumed to adequately
represent the interests of the public.  Notably in this case,
however, the University of Minnesota did not object to the student
groups' intervention; only the Plaintiffs contested the motion. 
Nevertheless, the panel held that the University's interest in
defending the mandatory student fee system "encompasses the
[students'] asserted interests."

The panel reviewed the denial for permissive intervention under the
more lenient standard of abuse of discretion.  Even though
permissive intervention is designed to "promote[] judicial economy
by facilitating, where constitutionally permissible, the
participation of interested parties in others' lawsuit," Bowman
noted that "a federal case is a limited affair, and not everyone
with an opinion is invited to attend."  Reiterating the students'
lack of standing, and their failure to persuade the court that they
had a unique interest which needed protection, the panel deferred to
the judgment of the Magistrate Judge and affirmed his denial of
permissive intervention under Fed. Rule of Civil Procedure 24.  
_Sharon McGowan_

 Ohio Appeals Court Affirms Manslaughter Conviction of Lesbian Who
Shot Her Lover's Husband

The Court of Appeals of Ohio, 2nd District, has affirmed the
manslaughter conviction of Shelley L. Davis, a lesbian who shot and
killed the husband of her lover, Deborah Jones.  _State v. Davis_,
1999 WL 64206 (Feb. 12)(unpublished opinion).

In September 1995, Davis and Deborah Jones, who was separated from
her husband, David Jones, purchased a house together in Trotwood,
Ohio.  While they were living there, Davis received threats from
David Jones by voice mail and took security measures including
purchasing ammunition for and loading two guns that she and Deborah
Jones had in their house.  

Deborah told Shelley that she intended to go back to her husband. 
On February 7, 1996, Deborah and David Jones came to the house to
remove some of Deborah's clothing.  While they were there, Shelley
returned home and got into an argument with David.  She got a pistol
she had hidden in the room and held it behind her back.  According
to Shelley, David came toward her, stating: "I should have fucked
you up a long time ago."  Shelley then shot David in his arm from a
distance of about two feet.  David ran through the house, shouting
to Deborah that he had been shot.  He got outside but died in the
yard, the bullet apparently having trailed into his chest from his
arm.  Shelley and Deborah were unaware that David's wound was
mortal, and remained in the house conversing.  Shelley testified
that she shot David to make him stay away from her.

At trial, the court instructed the jury that Shelley, who was
charged with felonious assault, could alternatively be convicted of
involuntary manslaughter, and the jury convicted her of the latter. 
On appeal, Shelley argued that the court erred in this instruction,
claiming that the evidence at trial would not support the
manslaughter offense.  After reproducing a substantial transcript of
Shelley's testimony, the court concluded that the evidence was
consistent with a jury verdict of manslaughter, so the charge was
not given in error, and sustained the verdict.  The evidence showed
that Shelley knew the gun was loaded, and fired with the intent to
cause physical harm to David but not with the intent to kill him, as
the evidence showed the gun had more bullets in it but she only
fired once although she had the chance to fire at David again.
A.S.L.

 N.Y.C. Domestic Partnership Ordinance Survives First Court Test

New York Supreme Court Justice Louis York has rejected a challenge
to the validity of New York City Local Law 303(a), a wide-ranging
domestic partnership ordinance enacted last summer, as well as
Executive Orders 48 and 49 of former Mayor David N. Dinkins, which
were codified by the law.  _Slattery v. City of New York_, NYLJ,
2/11/99, p.28, col.6 (N.Y.Sup.Ct., N.Y.Co., 2/9/99).  

Plaintiffs, who are New York City taxpayers and landholders
represented by a conservative legal foundation, claimed that the
City Council and the Mayor lacked authority to establish domestic
partnership policies for the city.  First, they argued that state
law regulation of marriage and family under the Domestic Relations
Law preempts any local legislative authority on the subject. 
Second, they argued that the domestic relations law creates a form
of common law marriage, which was officially abolished in New York
by legislation in 1933.  Third, they argued that the defendants
exceeded their statutory legislative authority.  Finally, they
argued that the defendants attempted to give domestic partners what
amounts to a marital status without legislative authority.

Under the Home Rule Law that is the source of New York City's
legislative authority, the city council has broad legislative
authority but may not adopt laws that are inconsistent with state
law.  Justice York noted that the state has itself extended
recognition to domestic partners in the tenant succession context
under _Braschi v. Stahl Associates_, 74 N.Y.2d 201 (1989) and its
implementing regulations, so provisions of the domestic partnership
law governing succession rights in city-owned buildings is merely a
local expression of existing state policy.

More to the point, York found that the domestic partnership law did
not create a new form of common law marriage because of the
significant differences between domestic partnership and marriage. 
After discussing significant differences between marriage and
domestic partnership, York concluded that the "formal requirements
regulating marriages. . . are far more stringent than those
regulating domestic partners," noting the requirements for a
marriage license and the detailed law governing divorce, as compared
to the simple filing procedure for starting and terminating domestic
partnerships.  York also noted that "once people have entered into
marital relationships, they acquire certain rights and
responsibilities with respect to their spouses" which go beyond the
limited rights provided under the domestic partnership ordinance. 
York stressed the significant financial differences, such as
intestate succession and elective share rights, and the degree to
which earnings of married people are considered marital property.  

York concluded, "Thus, as compared to marital relationships,
domestic partnerships are marked by their lack of formalization,
lack of legal protection, and by the significantly fewer rights that
are extended to the domestic partners. . . Like a similar ordinance
recently upheld by the Colorado Court of Appeals, Local Law 303(a)
`qualifies a separate and distinct group of people who are not
eligible to contract a state-sanctioned marriage to receive health
and dental insurance benefits from the City,' _Schaefer v. City &
County of Denver_, -- P.2d -- (Co. Ct. App. Oct. 15, 1998)(available
at 1998 WL 722603).  Because this purpose does not infringe on `the
integrity and importance of the institution of marriage,' id., this
portion of plaintiffs' challenge must fail."

As to the argument that the City Council was not authorized to
provide benefits to local government employees beyond those
authorized by state statutes, York found that New York courts have
generally recognized wide discretion in local governments to
determine how to compensate their employees, recognizing the need of
local governments to compete effectively in the labor market for
competent staff.  There are a variety of state laws governing who is
entitled to employee benefits in the public sector.  Some of those
laws specify that family members of employees may be covered through
group insurance, while others speak more specifically of spouses and
children.  York found that it would not be reasonable to hold that
domestic partners could be covered under the laws referring to
family members but not under the laws referring to spouses,
concluding that domestic partners were like spouses for this
purpose.  Once again, York relied heavily on the reasoning of the
Colorado Court of Appeals in _Schaefer_, and noted that the N.Y.
Civil Service Law stated a policy of giving local governments
flexibility in determining their compensation policies.

York found that the differences in wording between various New York
state laws governing public employee benefits created latent
ambiguities, leaving it open to the court to adopt a harmonizing
construction.  "As in nearly all other relevant provisions," he
wrote, "the legislative intent here is to allow municipalities to
extend benefits to families.  It does not make sense that, by using
the terms `spouse' and `dependent children' instead of `family'
here, the legislature would attempt to limit the municipalities'
discretion with respect to this one employment benefit.  Finally, in
light of the undisputed legislative intent to grant local
governments the power to give their employees competitive salary and
benefits packages; and the general trend toward giving greater,
albeit limited, rights and recognition to unmarried domestic
partners and nontraditional family units in general, it is not
unreasonable for defendants to interpret the law in a fashion that
allows them to keep pace with this societal as well as legislative
trend."
Ending on a cautionary note, York remarked that in the ordinance the
city had "retain[ed] the power to add rights and benefits to those
already listed."  "Any amendments to the ordinance will have to be
consistent with home rule principles," he commented.

Justice York closed with a footnote thanking his law secretary, Beth
Herstein, "for her contributions to the research and drafting of
this decision."  We echo his thanks.  A.S.L.

 N.Y. Court Rules Prostitution Law Applies to Gay Hustler

In an opinion which is most interesting for a dictum reflecting
changing judicial views of homosexuality, the motion of a male
hustler to dismiss a misdemeanor prostitution information for facial
insufficiency was rejected in _People v. Medina_, 1999 WL 73231(N.
Y. Crim. Ct., N.Y. County, Jan. 26).  The information charged that
Medina agreed to engage in "sexual contact" with a male undercover
police officer in the form of "sexual intercourse."  Medina alleged
that it was legally impossible for two males to engage in sexual
intercourse, maintaining that this was only possible between a male
and a female.  Medina's argument was that the information should
have charged him with  agreeing to engage in "deviate sexual
intercourse," instead, and was thus facially insufficient.

Medina was charged with a violation of N.Y. Penal Law sec. 230.00,
which provides that "a person is guilty of prostitution when that
person agrees to engage in sexual conduct with another person in
return for a fee."  "Sexual conduct" is not defined in Article 230
of the Penal Law.  Medina argued that one had to look to Penal Law
Article 130, which deals with other sex crimes.  In this article,
distinctions are drawn between "sexual intercourse" (which has "its
ordinary meaning") and <!69>deviate sexual intercourse<!70> ("sexual
conduct between persons not married to each other consisting of
contact between the penis and the anus, the mouth and the penis, or
the mouth and the vulva."). The distinction is drawn because New
York law distinguishes between rape and sodomy as criminal offenses.

In rejecting Medina's argument, the court pointed out that the
definitions section of Article 130 states that the definitions
therein were applicable to that article.  Penal Law sec. 230.10, on
the other hand, expressly states that the sex of the two parties is
immaterial, and that "it is no defense that such persons were of the
same sex."  

In the dictum which is of particular interest, the court looked to
the plain meaning of the terms used in the information, noting that
"deviate" means "departing significantly from social norms." 
Accordingly, the court reasoned, the terms "sexual intercourse" and
"deviate sexual intercourse"  " . . . reflect the view that
heterosexual activity is normal while homosexual activity is not. .
. . While such an understanding may have been accepted in the past
[reference to a 1977 New York case omitted],  . . . it is now less
firmly rooted in the public understanding."   _Steven Kolodny_

 Pennsylvania Court Turns Back Same-Sex Harassment Claim in
Unemployment Benefits Case

The Commonwealth Court of Pennsylvania denied the appeal of a women
who claimed unemployment benefits related to her alleged
constructive discharge from her job because of same-gender sexual
harassment.  _Johnson v. Unemployment Compensation Board of Review_,
1999 WL 35232 (Pa. Cmwlth. Ct., Jan. 28).  While Lana Johnson worked
as a food service manager, she fended off advances from a female
supervisor which included what the court characterizes as
"horseplay" with "lesbian overtones".  Johnson complained directly
to the harasser who promised to quit, but did not.  The court
declined to reconsider Johnson's application for unemployment
benefits because she had not complained to the company about the
supervisor.  The court noted that same-sex conduct which is sexual
harassment does not per se constitute a "necessitous and compelling
cause" which would excuse the claimant's failure to take steps to
alleviate the problem.  Nor had Johnson shown that an internal
complaint would have been futile; she had skipped a meeting with an
area supervisor about the problem and quit on the same day.  _Dirk
Williams_

 Vermont Law Students Take On the Solomon Amendment

Three student organizations at Vermont Law School have filed what is
apparently the first legal challenge to the Solomon Amendment, 104
Pub.L. 208, sec. 514, a federal law that forbids any funds
appropriated for the departments of Labor, Health and Human
Services, or Education to go to any institution of higher education
that adopts a policy effectively barring military recruitment
personnel from on-campus access to students.  The complaint in
_Alliance of Lesbian, Gay, Bisexual, Transgendered, and Straight
Students v. Cohen_, filed Jan. 28 in U.S. District Court in Vermont,
contends that the Solomon Amendment violates the 5th and 10th
Amendments of the federal constitution's Bill of Rights, and seeks
a declaration from the court that it is "void and without effect" as
applied to Vermont Law School.  The suit seeks, alternatively, a
declaration that regulations promulgated under the Amendment are
beyond the scope of the amendment and void.

The theory of the case is not readily ascertainable from the
complaint.  In essence, the students argue that requiring the law
school to allow on campus an employer that discriminates on the
basis of sex and sexual orientation, as admittedly the military
does, violates the equal protection rights of the students.  The
suit also makes a federalism argument, claiming that the federal
government violates the 10th amendment's reserved rights concept by
imposing an unconstitutional condition on the receipt of federal
funds without any significant justification.  They argue in the
complaint that the military does not need access to the law school
campus in order to recruit sufficient law students to staff open
positions in the Judge Advocate General Corps, so there is no reason
to condition receipt of federal funds on access to the campus.

The case has been assigned to District Judge William K. Sessions,
III, a 1995 appointee of President Bill Clinton.

The student groups are represented by Eileen M. Blackwood, a
Burlington, Vermont, attorney, and are advised by Sheldon M. Novick,
a Scholar in Residence at the Law School.  A.S.L.

 Washington State Appeals Court Upholds Conviction Under Hate Crimes
Law

In a rare reported opinion construing a hate crimes law in an anti-
gay context, the Washington Court of Appeals, Div. 1, affirmed the
convictions of Jeffrey Allen Lynch, Dondrey Levon Whitted, and Aaron
Ramone Jefferson, who were all 17 years old at the time of the
offense, of malicious harassment on the basis of the perceived
sexual orientation of the victim.  _State v. Lynch_, 970 P.2d 769
(Wash.App., Div. 1, Jan. 25, 1999).  However, the court found that
the ban against double jeopardy had been violated by the trial court
when it sentenced the three men separately for fourth-degree assault
and malicious harassment based on the same incident.

On March 9, 1996, a gay couple, M and C, were at home when their dog
started barking wildly.  M went to investigate and discovered the
three teenage defendants peering into the living room window.  When
they saw M, they started shouting and making lewd gestures.  When M
went to the door and asked them what their problem was, two of the
youths "began making lewd gestures and comments regarding the
coupleþs sexual orientation."  The two youths in question are
African-Americans (the third youth, Lynch, who did not make these
comments at the time, is Caucasian), and got into an argument with
M during which M used racial slurs.  Eventually the youths went to
a gate in C and Mþs fence and started kicking it; M went out of the
house and got into a confrontation with them during which all three
youths assaulted him in various manners, even as neighbors were
trying to separate the combatants.

In appealing their sentences, the youths argued that there was
insufficient evidence to support the finding of guilt for malicious
harassment.  Under Washington law, malicious harassment carries a
more severe penalty than simple assault, based on the defendant
selecting a victim due to the victimþs personal characteristics,
including sexual orientation.  Writing for the court, Judge Grosse
found that the record provided sufficient evidence from which a
fact-finder could infer that Mþs sexual orientation was a factor in
his selection by the defendants as a victim, noting that the
"statements and actions of the juveniles may be used as
circumstantial evidence of victim selection."

Furthermore, Grosse rejected Lynchþs argument that because none of
the evidence showed that he had made any sexually derogatory remarks
to M, the evidence did not support his conviction, finding that
Lynch was a participant in the overall incident.  "He could hear
what the others were saying and doing and chose not to leave.  The
State did not have to prove that he shared the same mental state
with the others."

However, Grosse found that as all the elements of fourth-degree
assault were included within the crime of malicious harassment, it
would be double jeopardy to impose separate sentences on the
defendants for both offenses, so the sentences for assault were
vacated.  A.S.L.

 False Imputation of Homosexuality in New York Still Defamation Per
Se

Without explanation, a unanimous four-judge panel of the N.Y.
Appellate Division, First Dept., ruled Jan. 26 in _Nacinovich v.
Tullet & Tokyo Forex, Inc._, 1999 WL 44433, that a false imputation
of homosexuality is still considered per se defamation in New York.

The defamation claim was included in a multi-claim complaint filed
by Anthony Nacinovich against his former employer.  Nacinovich
alleges that he was subjected to a hostile environment and suffered
retaliatory discharge in response to his complaints.  He also claims
he was defamed when another employee drew cartoons ridiculing him,
including depicting him engaging in homosexual activity, and that
the employer tolerated and refused to stop the circulation of these
cartoons.  

Ruling on the employer's dismissal motions, the trial judge, Justice
Lorraine Miller, had refused to dismiss the defamation claim for
lack of an allegation of actual injury, holding that a false
imputation of homosexuality is defamatory per se in New York. 
Miller relied on a 1984 ruling by the Appellate Division in the 2nd
Department, which had stated that "rightly or wrongly," our society
still places a stigma on homosexuality.  In affirming Justice
Miller's ruling on this point, the Appellate Division merely cited
another Second Department case of similar vintage, with no
explanation.

While the court might be correct that a false imputation of
homosexuality would still damage the reputation and social standing
of a typical person in the eyes of many people today, the court's
failure to discuss intervening social developments suggests that
this may have been a routine, reflexive citation to old cases
without any consideration of social change.  In light of the
traditional common law rules for identifying types of defamatory
speech that should be presumed injurious, the holding is
questionable. A ruling to the contrary is _Hayes v. Smith_, 832 P.2d
1022 (Col.App. 1991), in which the Colorado court held that social
change had removed such comments from the per se classification.  

We have learned that the defendant did not raise this issue in its
appeal of Justice Miller's ruling, arguing instead that the
plaintiff's factual allegations were inaccurate.  This may explain
the court's failure to discuss it, but not its decision to rubber-
stamp the lower court ruling.  A.S.L.

 Federal Court Dismisses Photographer's Defamation Claims Against
_National Enquirer_

A federal District Judge granted summary judgement on behalf of the
_National Enquirer_ in case in which Stephen Miles was identified as
a "pedophile" and a "sex offender."  _National Enquirer, Inc. v.
Miles_, 1999 WL 49850 (D. Colo., Jan. 27).   Miles named two
reporters, John South and David Wright, as well as 20 John Does, as
defendants.

In a piece written for the _Enquirer_, South and Wright, wrote in
part: "Included on that list are dozens of pedophiles and sex
offenders living in Boulder.  One of them, gay photographer Stephen
Miles. . ."  Judge Brimmer found that as a matter of law the use of
"pedophile" and "sex offender" was defamatory per se.  The court
rejected the contention that being accused of "being a homosexual"
is defamatory per se, citing _Hayes v. Smith_, 832 P.2d 1022, 1025
(Colo.App.1992).  
The court found that South and Wright had "a good faith belief" that
Miles "was and is" a pedophile and sex offender.  Wright interviewed
Miles, at which time Miles reportedly told him that "he had an
interest in young men" and showed him "erotic" pictures which Wright
interpreted as being "of underage boys, as young as thirteen." 
Miles had been charged in 1989, but not convicted, of taking
pornographic pictures of juveniles and giving them drugs and
alcohol. Miles had also been convicted and jailed on charges of
sexual exploitation.  The decision does not note if this charge
involved minors.    

The court found that even if Miles was not a pedophile based on a
medical definition, Young and Wright did not have evidence which
would have warranted further investigation.  Similarly, even though
Miles has never been convicted of a sex offense charge, Wright and
Young acted in "good faith" by naming him a sex offender.  "It is
quite reasonable to think that a sex offender is a person who has
committed sex offenses, regardless of whether the person was ever
convicted of a sex offense," Brimmer stated in dismissing all of the
charges against the _National Enquirer_.

Brimmer asserted that this decision is consistent with "the trend of
modern decisions of the United States Supreme Court, starting with
_New York Times v. Sullivan_."  The courts are setting a "high
hurdle" for defamation plaintiffs, and as a result summary judgement
is being granted more frequently.  Ultimately, Judge Brimmer wrote
that whether the high hurdle set was good or not "must be answered
politically rather than legally."  _Daniel R Schaffer_

 9th Circuit Disagrees With Aspects of 7th Circuit Student Activity
Fee Case

A panel of the U.S. Court of Appeals for the 9th Circuit, upholding
the constitutionality of the University of Oregon's distribution of
student activity fees to the Oregon Student Public Interest Research
Group Education Fund (OSPIRG EF), specifically disagreed with
aspects of the 7th Circuit's decision last year striking down a
similar funding mechanism at the University of Wisconsin.  _Rounds
v. Oregon State Board of Higher Education_, 1999 WL 86684 (Feb. 23).

A group of students filed suit against the University and various
university officials, claiming that their First Amendment rights
were violated by the University giving a portion of their student
activity fees to support OSPIRG EF.  A magistrate judge recommended
rejecting their lawsuit, which the district court did.  On appeal,
the Court of Appeals ruled in an opinion by Circuit Judge Thomas
that the university had created a limited public forum for
educational speech activities, funding a variety of organizations
providing differing viewpoints.  Such a forum can operate using
general student activity fees, since nobody is compelled to join any
particular student organization or espouse its views.

The court noted that OSPIRG EF's activities seemed to have been
particularly tailored to avoid objections raised in other PIRG
funding cases, divorcing its political and lobbying activity from
the Educational Foundation, which focuses on advancing the academic
environment by providing students with opportunities to participate
in public interest research projects.  In this sense, the court
found the case distinguishable from _Southworth v. Grebe_, 151 F3d
717, reh'g denied, 157 F.3d 1124 (7th Cir. 1996) pet. for cert.
filed (Jan. 25, 1999), in which the 7th Circuit found that
protesting students were entitled to a commensurate reduction in
their activity fees proportional to funding of politically-oriented
student groups with which the objectors disagreed.  "To the extent
that Southworth holds that a public university may not
constitutionally establish and fund a limited public forum for the
expression of diverse viewpoints," wrote Thomas, "we respectfully
disagree for the reasons previously discussed."  A.S.L.

 New York Courts Join in Crackdown on Sex-Related Businesses

The Giuliani Administration in New York City is having better luck
in the courts on enforcement of the adult uses zoning law.  On Feb.
4, the N.Y. Appellate Division, 1st Department ruled in _City of New
York v. Stringfellow's of New York, Ltd._, NYLJ, 2/8/99, p. 25, that
an otherwise-adult oriented business could not escape the zoning law
by admitting an occasional child to the premises, and a trial judge
in Queens ruled to the same effect in _City of New York v.
Goldfingers_, NYLJ, 2/9/99, p.33.  Also published on Feb. 8, the
Appellate Division, 1st Department ruled in _City of New York v. Les
Hommes_, NYLJ, 2/8/99, p. 27, that a gay-oriented adult bookstore
that had operated more than twenty years on the Upper West Side of
Manhattan was in violation of the zoning ordinance.  Although the
proprietor had substantially increased the inventory of non-sexually
related videos and purported to change the character of the mini-
theater part of the operation, the unanimous appellate panel found
support in the trial record for Justice Stephen Crane's conclusion
that the business remained primarily an adult business, which is not
allowed in this neighborhood under the zoning ordinance.  

These decisions mark a move by the courts away from strict
construction and toward a broader interpretation of the ordinance
and its enabling regulations.  Previously, some courts had managed
to find loopholes based on the percentage of floor space dedicated
to adult uses, but these newer decisions suggest that the courts may
abandon that approach in favor of looking at the overall nature of
the business and the clients to whom it is trying to appeal.  A.S.L.

 N.Y. Court Acquits Transsexual on Loitering for Prostitution Charge

Judge Eileen Coin of New York City Criminal Court acquitted Dustin
Roseboom, a pre-operative male to female transsexual, on charges of
loitering for prostitution.  _People v. Roseboom_, NYLJ, 2/16/99, p.
29, col. 6 (N.Y. County).

Roseboom was arrested by a plain clothes police officer in the
Manhattan meatpacking district at the intersection of 14th, Horatio
and Hudson Streets in the early morning hours of July 15, 1998. 
Roseboom was wearing a red outfit, had long black hair, and wore
makeup.  The police officer observed Roseboom approach three
different cars and converse with the drivers.  All the drivers were
male.  Roseboom did not get into any of the cars.  After observing
Roseboom for about twenty minutes, the officer made the arrest.

The officer testified that this was an area where transvestite and
transsexual prostitutes hung out looking for customers, and that he
had recognized some of the other people in the vicinity as
prostitutes he had seen at the police station.  Roseboom testified
that this is a transvestite/transsexual-friendly area and that he
was walking around to see if anyone he knew was in the area.

Judge Coin found that the People had failed to prove beyond a
reasonable doubt that Roseboom was loitering for the purpose of
prostitution.  No prostitution transaction was consummated, and the
facts were as consistent with Roseboom's story as with the police
officer's story.  Mere loitering is not an offense.  The case
against Roseboom was dismissed.  A.S.L.

 Lesbian/Gay Litigation Notes

The Hawaii Supreme Court vacated the attempted murder conviction of
a man who fired shots at his wife, who had moved out to live with
her lesbian lover, on the ground that the trial court erred in its
instruction to the jury concerning reasonable doubt.  _State v.
Perez_, 1999 WL 56006 (Feb. 8).  Most of the opinion by Justice
Levinson is concerned with another aspect of the case: whether the
trial court erred in its charge concerning the defense of extreme
mental or emotional disturbance.  The Intermediate Court of Appeals
had found that instruction defective, but the Supreme Court
disagreed.  See the highly technical opinion, cited above, for
details.

The University of Pittsburgh is stirring consternation by
contending, in response to a domestic-partner benefits lawsuit, that
Pittsburgh's human rights ordinance forbidding sexual orientation
discrimination is invalid.  The University argues that Pennsylvania
municipalities do not have authority to forbid forms of
discrimination that are not already forbidden by state law. 
Pennsylvania does not prohibit sexual orientation discrimination by
private employers in the state.  

A labor arbitrator ruled Feb. 9 that the Tampa Police Department was
justified in demoting a sergeant who made homophobic statements to
and about a departmental employee after the employee inadvertently
deleted a computer file that the sergeant had been working on for
the past two hours.  The demoted officer, Karen Lea, brought an
openly gay friend as a witness that she is not homophobic, and the
police union argued that she had merely been "venting" due to
frustration, but the arbitrator concluded that Lea had violated the
city's policy against sexual orientation discrimination and thus the
demotion was appropriate.  _St. Petersburg Times_, Feb. 10.

The Appellate Court of Illinois, First District, ruled that
Chicago's Commission on Human Relations has exclusive jurisdiction
of a claim that a gay man was unlawfully dismissed as a Chicago
police officer during his probationary period on the basis of his
sexual orientation.  Upholding dismissal of an action brought by
Kevin Flynn in the Circuit Court seeking judicial review of his
discharge, the Appellate Court held that the circuit court is
without jurisdiction to hear an employment discrimination claim in
the first instance.  _Flynn v. Hillard_, 1999 WL 77759 (Feb. 18).  

Wally Lowe, a member of Concerned Citizens for Broward, filed suit
Feb. 18 seeking to invalidate Broward County, Florida's, new
domestic partnership law, which was enacted in January.  Lowe argues
that the county violated the state constitution by legislating in
the area of domestic relationships.  A hearing was scheduled for
Feb. 28 before Circuit Judge Robert Andrews to determine whether
temporary relief should be issued against the law going into effect
on March 1.  Lowe's brief in support of temporary relief was drafted
by attorneys at Northstar Legal Center in Fairfax, Virginia, a
conservative organization dedicated to litigating against gay
rights.  (Anyone for a vast, right-wing conspiracy here?)  _Sun
Sentinel_, Ft. Lauderdale, Feb. 29.  A.S.L.

 School Litigation Notes

San Leandro, California, High School teacher Karl Debro has filed
suit in U.S. District Court in Oakland against the San Leandro
Unified School District, alleging that a reprimand placed in his
personnel file concerning his classroom discussion about racism and
homophobia violates his 1st Amendment rights.  Debro, the school's
only African-American teacher, is faculty advisor to the school's
Gay/Straight Alliance.  He claims that the school board's policy of
requiring advance clearance before teachers discuss "controversial
issues" in the classroom is unconstitutional, and tends to
"intimidate people from addressing the horrible treatment gay,
lesbian and bisexual students get."  Debro is represented by Julia
Sherwin, an Oakland attorney, with assistance from the Center for
Constitutional Rights. _San Francisco Chronicle_, Feb. 18.

Three Barron, Wisconsin, high school students and their parents have
filed suit in U.S. District Court in Milwaukee, alleging that the
District Administrator, Vita Sherry, violated their constitutional
rights by removing two books with "homosexual themes" from the high
school library.  A parent of a former high school student had
contacted the school district to ask that the four books dealing
with homosexuality be banned from the school.  A committee made up
of residents and teachers recommended that all four books be
retained, but administrators decided that "Baby Be-Bop" and "The
Drowning of Stephan Jones" contained "vulgar language," justifying
their removal.  The complaint in the case alleges that School Board
President Bruce Ostenson supported removal of the books based on
"his belief that homosexuality is a learned behavior."  The
plaintiffs are represented by the ACLU of Wisconsin.  U.S. District
Judge Barbara Crabb scheduled a March 3 hearing in the case. 
_Milwaukee Journal Sentinel_, Feb. 18.

 Legislative Notes

The Columbus, Ohio, City Council has repealed the domestic
partnership ordinance that it had passed on December 14.  Under the
Columbus City Charter, citizens have thirty days after the Council
adopted a measure to submit petitions asking for a referendum on the
measure.  Opponents of the ordinance, who claimed that it had been
rushed through without adequate public discussion, quickly obtained
enough petition signatures to force a referendum.  The Council
decided to avoid a referendum by repealing the measure, which leaves
the Council free to take up the measure again at a later date.  (Had
it been repealed by referendum, a new domestic partnership ordinance
could not be passed without another referendum.)  _Daily Labor
Report_ No. 27 (BNA), 2/10/99, at A-3.

The Seattle, Washington, City Council has amended the city's Fair
Employment Practices Ordinance to authorize a private right of
action for employment discrimination.  As a practical matter,
Seattle citizens suffering discrimination on most of the enumerated
grounds in the ordinance could already file lawsuits based on state
or federal law, but the Ordinance also covers sexual orientation and
political ideology, so the practical effect of the ordinance is to
give people experiencing employment discrimination on these grounds
a right to by-pass the cumbersome city administrative complaint
process and file lawsuits directly.  The mayor has stated that he
will sign the legislation. _Seattle Times_, Feb. 19.

The Mecklenburg County, North Carolina, Commission has voted to
repeal an April 1997 resolution that had imposed major cuts in
funding on the Charlotte Arts & Science Council.  The 1997
resolution was passed in response to the Council's funding of local
theater productions of _Angels in America_ and _Six Degrees of
Separation_, plays featuring gay characters.  Public reaction to the
prior vote resulted in defeat of several Commissioners in recent
elections, and a new majority determined to restore the arts
funding.  _Greensboro News & Record_, Feb. 19.

 Law & Society Notes

AIDS activist Larry Kramer, keynote speaker at the Midwest Lesbian,
Gay, Bisexual and Transgender Campus Conference held in Madison,
Wisconsin, in February, stated that gays and lesbians have made
little progress toward equality and acceptance in the last twenty
years.  "The plague hasn't gone away at all," Kramer lamented.  "Gay
people still get treated terribly in just about any possible place
you can be.  Polls of anyone still say how much they hate us." 
_Wisconsin State Journal_, Feb. 22.

Students at Harvard Law School held a conference on same-sex
marriage issues on Feb. 13 that drew several speakers from national
gay rights organizations and attracted the attention of the _Boston
Globe_ (Feb. 14).

The Associated Press reported Feb. 11 that a coalition of gay rights
groups has spoken out against the death penalty in connection with
the prosecution of Aaron J. McKinney and Russell A. Henderson for
the murder of Matthew Shepard, a gay man who died after being beaten
in Laramie, Wyoming, last year.  Among the groups joining in the
statement were the National Gay and Lesbian Task Force, Lambda Legal
Defense & Education Fund, Gay Men of African Descent, the
International Gay and Lesbian Human Rights Commission, the New York
City Gay & Lesbian Community Services Center, the National Center
for Lesbian Rights, and the ACLU Lesbian and Gay Rights Project. 
The groups took the position that capital punishment does not deter
crime, will not reduce hate crimes, perpetuates violence, and is
used discriminatorily against minorities and poor people.  _N.Y.
Times_, Feb. 12.

The _Oregonian_ (Feb. 15) reports that the city of Gresham, Oregon,
is making domestic partnership benefits available to same-sex
partners of city employees on the initiative of the city's insurance
provider, which announced an open enrollment period for such
benefits in reaction to a decision in December by the Oregon Court
of Appeals holding that public employers in Oregon are required to
provide such benefits to their employees as a requirement of equal
protection under the state constitution.  The city council was not
consulted about this move.  A memo from the City Manager indicated
that the expected increase in the city's expense for employee health
insurance is about half a percent.

The _San Francisco Chronicle_ (Feb. 19) reports that the Christian
Action Network of Forest, Virginia, has contacted the Federal
Communications Commission to request that a new warning label be
required for television programs with lesbian and gay characters or
content.  At present, the FCC requires warnings about violence, sex
and adult language so that viewers who prefer to avoid such
programming will be suitably forewarned.  Martin Mawyer, president
of C.A.N., asserted that there are "parents across the country that
are sick and tired of having their living rooms invaded by
homosexual characters and activities on their television."  However,
a serious policy difference seems to have opened up between C.A.N.
and Rev. Jerry Falwell.  When asked whether Teletubbies should have
this warning label, a spokesperson for C.A.N. demurred, stating that
Tinky Winky "is not a gay character... at least not the way I look
at it."  However, C.A.N. president Mawyer's press release did
indicate alarm over an upcoming HBO program concerning "a fuzzy
little yellow bird who learns he's gay."  A true threat to Western
Civilization, we say!  

Sexual orientation discrimination laws are not just about gay
rights.  Former saleswomen have filed sexual orientation
discrimination charges against a Chanel boutique in San Francisco,
claiming that the gay male manager of the store discriminates
against heterosexual women, and had replaced them with gay men.  The
suit, filed in U.S. District Court (_Blumenthal v. Chanel, Inc._,
No. C99-0590, filed 2/8/99, N.D.Cal.), alleges violations of Title
VII, the California Fair Employment and Housing Act, the Employee
Retirement Income Security Act (ERISA) and California and San
Francisco measures against sexual orientation discrimination. 
Chanel asserts that the claims are without merit.  _San Francisco
Chronicle_, Feb. 20; _Daily Labor Report_ No. 36 (BNA), 2/24/99, p.
A-3.

A student referendum at Southern Methodist University in Dallas has
supported the addition of "sexual orientation" to the University's
non-discrimination policy by a vote of 961-670.  However, the
proposal must still win the support of top administrators and the
board of trustees before it can be implemented.  _Fort Worth Star-
Telegram_, Feb. 19.

 International Law Notes

The International Lesbian & Gay Association reports an interesting
decision by the Supreme Court of Spain's military division.  On Feb.
13, the Court ruled on the appeal by Corporal Francisco Javier
Crespo Lopez, a Naval officer, who was sentenced to one year
imprisonment for abusing his authority when in 1994 he punched ten
draftee soldiers in the chest because they either "looked queer" to
him or he believed they were staring at him.  On appeal, Lopez
argued that the draftees were to blame for their own injuries.  The
court characterized Lopez's arguments as "absurd."

Japan's Supreme Court upheld a decision by customs inspectors to
block the private importation by a Japanese citizen of a single copy
of an art book of photographs by Robert Mapplethorpe on grounds of
obscenity.  Three members of the five-member panel voted that the
book is obscene because it contains photos "emphasizing male
genitals," but two members dissented, contending that individuals
might differ over whether the book, which has been sold in Japan,
can be considered obscene.  The plaintiff, Masaru Tsuchiya, who
bought the book in the U.S. and tried to mail it to himself in
Japan, questioned the argument that the book would corrupt public
morals, inasmuch as he had bought only the one copy for his private
use, but the Japanese Supreme Court decided in December 1984 that
custom inspectors could ban the import of magazines on obscenity
grounds.  _Associated Press_, Feb. 23.

The High Court at Hamilton, New Zealand, ruled Feb. 10 against an
appeal by a lesbian contesting a lower court order that she pay
child support to her former lover to help pay for the costs of
raising the children they conceived through donor insemination.  The
court also awarded $3,000 in court costs to the birth mother.  The
court stated that this case came under the Child Support Act 1991
because it would cover somebody who has entered "into a relationship
in the nature of marriage."  Andrew Davie, attorney for the
appellant, stated that he was not surprised by dismissal of the
appeal, but stated as to his client: "She has some difficulty
understanding how she was unable to adopt and unable to marry but
has now been made a step-parent."  _The Dominion_, Feb. 12; _Waikato
Times_, Feb. 11.

The Supreme Court of Canada will hear an appeal by the Little
Sisters gay and lesbian bookstore in its ongoing battle with
Canadian customs over the importation of gay and lesbian literature. 
The British Columbia Court of Appeal ruled last year that the Canada
Customs Act does not infringe the store's rights under the Canadian
Charter, although its application produces the absurd result that
books published and freely distributed within Canada can be seized
if they are imported from outside of Canada.  _Edmonton Sun_, Feb.
19. A.S.L.

 Developments in European and U.K. Law

Age of Consent.  As promised in July 1998, the UK government
introduced its own Sexual Offences (Amendment) Bill in December
1998.  (The full text and explanatory notes can be found at
www.parliament.the-stationery-office.co.uk/pa/pabills.htm.)  The
Bill will equalise the age of consent at 16 for all sexual activity,
whether male-male, female-female, or male-female.  However, to
address concerns raised in the debates in June and July 1998 (see
1998 LGLN 135), the Bill will create a new offence criminalizing
consensual sexual activity between a person over 18 and a person
under 18 if the older person is in a "position of trust" in relation
to the younger person.  The maximum penalty is two years in prison.
The older person is in a "position of trust" if they look after
persons under 18 who are receiving full-time education or are living
in, among other institutions, a hospital or a residential care home. 
It would appear that it has never in British history been a criminal
offence for a male or female teacher to engage in consensual sexual
activity with a female student aged 16 or 17, or for a female
teacher to do so with a male student aged 16 or 17.  The prospect of
the same rule applying to consensual sexual activity between a male
teacher and a male student aged 16 or 17 has provoked the creation
of this new offence.  The Bill received its second reading on
January 25 and was passed by a large majority (for the debate, see
www. parliament.the-stationery-office.co.uk/pa/cm/cmhn0199.htm).  It
will probably go to the House of Lords the week of March 15.  If the
Lords reject it again, as they did in July 1998, the House of
Commons could not pass it without the consent of the Lords, under
the Parliament Acts 1911 and 1949, until 25 January 2000.
 
Same-Sex Partners of European Community Staff.  On January 28, in D.
& Sweden v. Council, Case T-264/97, the European Court of First
Instance in Luxembourg held that the refusal by the Council (the
main EC legislative institution) to treat the Swedish same-sex
registered partnership of a Council employee as equivalent to a
marriage in relation to an employment benefit did not violate EC
law.  (For a press release in English, see
europa.eu.int/cj/en/cp/cp9905en.htm; for the full text of the
decision in French, see europa.eu.int/cj/en/index.htm under "Staff
Cases".)  The Court applied Grant v. South-West Trains, Case C-
249/96, [1998] ECR I-621, and extended it by holding that an
employer is not required to treat a stable same-sex relationship in
the same way as a traditional marriage, even where the same-sex
relationship has been officially registered by a national
administration.  The Swedish government had intervened in support of
D.  It is not known whether the decision will be appealed to the
European Court of Justice. _Robert Wintemute_

On Feb. 11, the British Court of Appeal reduced the sentences for
five men who had been convicted of "indecency" for participating in
a sex party that was captured on videotape.  They had all been given
probation or community service orders after being convicted of gross
indecency or buggery.  Although England decriminalized consensual
sex between adults in 1967, it remains a crime to have sex in
public, which is defined as any situation where more than two people
are present.  Justices Kay and Bracewell, who heard the appeal,
concluded that the sentences were too onerous because the defendants
were all first-time offenders, but rejected the argument that any
sentence would violate the European Convention on Human Rights. 
Justice Kay commented that although consensual homosexual offenses
were not viewed with their former seriousness, the trial judge could
conclude that these offences warranted the imposition of community
service.  _The Guardian_, Feb. 12.  A.S.L.

 Professional Notes

Our report last month that Therese Stewart, sworn in as president of
the Bar Association of San Francisco in mid-December, was the first
openly lesbian or gay president of a major metropolitan bar
association, was apparently off by a few weeks.  On Dec. 4, 1998,
Todd Stevens, an openly gay partner at Keeney, Waite & Stevens in
San Diego, was sworn in as president of the San Diego Bar
Association.  Lest anyone question whether this is a major
metropolitan bar association, it has 7,000 members and the city of
San Diego has a much larger population than San Francisco!  Thanks
to a west coast informant for setting us right on this story.  

Lambda Legal Defense & Education Fund seeks a full-time
administrative assistant in its New York office to work with two
attorneys, including the AIDS project director.  Must have excellent
oral and written communication skills, as well as computer and
office skills.  Compensation from mid 20s, DOE.  Full benefits. 
Cover letter and resume to Ruth Harlow, LLDEF, 120 Wall Street,
Suite 1500, New York NY 10005-3904.  

The Centre of European Law, School of Law, King's College,
University of London, will be holding "Legal Recognition of Same-Sex
Partnerships:  A Conference on National, European, and International
Law" on July 1-3, 1999 in London.  Confirmed panel chairs include
U.S. District Judge Deborah Batts (S.D.N.Y.), Mr. Justice Edwin
Cameron (South Africa High Court, Johannesburg), Professor Didi
Herman (Keele U., UK), Professor David Richards (New York
University), and current or former judges of the House of Lords, the
European Court of Justice, the European Court of Human Rights, the
French Constitutional Court, and the Supreme Court of Canada. 
Confirmed speakers include former European Court of Justice
Advocates General Giuseppe Tesauro (P. v. S. & Cornwall County
Council, 1996), and Michael Elmer (Grant v. South-West Trains,
1998), as well as Nicholas Bamforth (U. of Cambridge), Mary Bonauto
(GLAD), Daniel Borrillo (U. de Paris X), Ruth Busch (U. of Waikato,
NZ), Donald Casswell (U. of Victoria, BC), Andy Chiu (City U., Hong
Kong), Matthew Coles (ACLU), Davina Cooper (Keele U., UK), William
Eskridge (Yale), Chai Feldblum (Georgetown), Leo Flynn (Eur. Ct.
Justice, Luxembourg), Sandra Fredman (U. of Oxford), Aeyal Gross
(Tel-Aviv U.), Elspeth Guild (U. of Nijmegen, NL), Janet Halley
(Stanford), Eric Heinze (Queen Mary, U. of London), Laurence Helfer
(Loyola LA), Andrew Koppelman (Northwestern), Kathleen Lahey
(Queen's U., Ontario), Arthur Leonard (New York Law School), Craig
Lind (U. of Sussex, UK), Leslie Moran (Birkbeck, U. of London),
Wayne Morgan (U. of Melbourne), Nancy Polikoff (American U.),
Kendall Thomas (Columbia), Kenji Yoshino (Yale), Kees Waaldijk (U.
of Leiden, NL), Stephen Whittle (Manchester Metro. U.), Robert
Wintemute (King's, U. of London), and Evan Wolfson (Lambda Legal
Defense & Education Fund).  For further information and a
registration form, visit
http://www.kcl.ac.uk/kis/schools/law/research/cel/index.html or
e-mail elizabeth.haigh@kcl.ac.uk.

AIDS & RELATED LEGAL NOTES

4th Circuit Holds Karate School Could Refuse Participation to HIV+
Youngster

Affirming a ruling by Senior District Judge Richard L. Williams of
the Eastern District of Virginia, a unanimous panel of the U.S.
Court of Appeals for the 4th Circuit held in _Montalvo v.
Radcliffe_, 1999 WL 65624 (Feb. 12), that a karate school did not
violate the public accommodations title of the Americans With
Disabilities Act when it refused to allow an HIV+ 12-year-old boy to
participate in its regular karate classes.

Michael Montalvo, who has full-blown AIDS, wanted very much to
enroll at U.S.A. Bushidokan, a traditional Japanese-style martial
arts school in Colonial Heights, Virginia, run by James P.
Radcliffe, II, because many of his friends were enrolled in the
school.  When Michael's parents filled out the application form,
they indicated that he did not suffer from any illness or condition
that could possibly be infectious to others, but Michael's AIDS
condition was apparently known to some others in the community and
the school received an anonymous call relating that Michael had
AIDS.  The Montalvos denied this when Radcliffe contacted them, but
when he said Michael could not enroll without presenting a negative
HIV-test, they admitted he had AIDS.  Radcliffe offered to provide
private karate lessons to Michael as an accommodation, but refused
to allow him to participate in the regular classes, which involve
intense physical combat among the students.  Michael was not
interested in private lessons, as a main motivation for signing up
was that many of his friends were taking the classes.

Radcliffe testified that the karate activity resulted in bleeding
wounds from time to time, and sometimes it would not be until after
the combatants are separated when the loser stops offering a defense
that blood is spotted.  At trial, doctors appeared as expert
witnesses for both parties.  The doctors agreed that HIV was
transmitted by blood to blood contact, and that it also could be
transmitted if an infected person bled on the intact skin or in the
eye of another person.

The trial court found that Michael was a person with a disability
and the karate school was a place of public accommodation covered by
the act.  However, the court found Michael was not a qualified
individual with a disability because his condition would present a
"direct threat" to other participants in the program which could not
be eliminated by any accommodation other than what Radcliffe had
offered: private lessons.

In an opinion affirming the trial judge, Circuit Judge Niemeyer
found that application of the analytical factors specified by the
Supreme Court in _School Board v. Arline_, 480 U.S. 273 (1987),
supported the conclusion that Michael posed a significant risk to
other participants in the karate class.  Although there was no solid
evidence that HIV had ever been transmitted in this context,
nonetheless the experts for both parties agreed that it was
theoretically possible.  Thus, the court followed the growing body
of precedent in employment discrimination cases involving HIV+
healthcare workers, under which even a theoretical possibility of
HIV-transmission in a particular context is deemed sufficient to
support a finding of significant risk, in light of the other
_Arline_ factors.  

Wrote Niemeyer: "When balancing the _Arline_ factors to determine
whether a risk is significant, one need not conclude that each
factor is significant on its own. Rather, the gravity of one factor
might well compensate for the relative slightness of another.  Thus,
when the disease at risk of transmission is, like AIDS, severe and
inevitably fatal, even a low probability of transmission could still
create a significant risk.  In this case, therefore, we agree with
the district court that Michael's condition posed a significant risk
to the health and safety of others."

Turning to the question whether a reasonable accommodation could
eliminate the risk, Niemeyer agreed with the trial court the
accommodation offered by Radcliffe -- to give private karate lessons
to Michael -- was the most that could be requested here. 
Implementing "universal precautions" for dealing with blood injuries
did not appear feasible to the court, based on Radcliffe's testimony
that "the suddenness of injuries, the tendency of some wounds to
splatter blood, the continuing movement and contact, and the
inability to detect injuries immediately all would undermine the
effectiveness of these precautions, particularly for places not
protected by eye coverings, gloves, or other similar coverings." 
Alternatively, "To require U.S.A. Bushidokan to make its program a
less combat-oriented, interactive, contact intensive version of
karate would constitute a fundamental alteration of the nature of
its program.  The ADA does not require U.S.A. Bushidokan to abandon
its essential mission and to offer a fundamentally different program
of instruction."  A.S.L.

 North Carolina Appeals Court Affirms Conviction of HIV+ Defendant
on Rape Charges

In _State v. Monk_, 1999 WL 68305 (N.C.App., Feb. 16), the court
affirmed the conviction of Andrew Lee Monk of statutory rape and
taking indecent liberties with a minor, rejecting Monkþs attempt to
upset the verdict based on how his HIV-status was treated in the
context of the case.

Monk, then age 36, lived in the same neighborhood as the victim, a
teenage girl who was evidently friends with Monkþs 12-year old son. 
The victim visited Monkþs home to deliver some Christmas cookies on
Dec. 15, 1996.  Monk sexually assaulted the victim, who screamed and
ran back to her own home.  Upon Monkþs arrest, his mother informed
the police that he had tested positive for HIV and actually had
AIDS.  In addition to the crimes of which he was convicted, Monk was
also initially charged with attempted murder and assault with a
deadly weapon, and the trial judge refused to dismiss these charges
before the trial commenced.  Although these charges were dismissed
at the conclusion of the trial, reference to Monkþs HIV status was
made throughout the trial, despite repeated attempts by his counsel
to exclude this information from evidence due to possible juror
prejudice.  The victim has repeatedly tested negative for HIV, but
has undergone AZT treatment.

The Court of Appeals, in an opinion by Judge McGee, affirmed the
conviction and the lengthy prison sentence imposed on Monk.  McGee
specifically rejected Monkþs argument that he could not be
prosecuted for attempted murder or use of a deadly weapon on the
ground that such a prosecution would usurp the legislatureþs
authority to determine the nature of crimes under North Carolina
law.  The Court also rejected Monkþs argument that as the murder and
deadly weapons charges were dismissed before the case went to the
jury, the introduction of evidence about his HIV status during the
trial provided a basis for setting aside the verdict on the ground
of prejudice and that the subsequent dismissal of these charges
rendered the HIV-related information irrelevant to the determination
of the remaining charges.  McGee stated that there was no showing
that this evidence had unfairly prejudiced the jury, and North
Carolina courts had not concluded as a matter of law that evidence
about a defendantþs HIV-status was automatically prejudicial. A.S.L.

 Texas Appeals Court Holds Criminal Defendant's HIV Status
Admissible in Sexual Assault Case

Affirming a sentence of life imprisonment rendered by a jury in a
sexual assault case, the Texas Court of Appeals in Texarkana found
no error in the trial court's decision to admit evidence about the
defendant's HIV status.  _Franklin v. State_, 1999 WL 44871 (Feb.
3).

B.J. Franklin was found guilty at trial of having sexual intercourse
with his 9-year old stepdaughter.  She testified that he threatened
to kill her if she told her mother.  A witness from the Child
Protective Services agency testified that Franklin was HIV positive
and that both his wife and stepdaughter are also infected.  Franklin
signed a confession to committing the sexual act which was admitted
in evidence.

Among many issues Franklin raised on appeal, he contended that the
trial court erred by admitting evidence of his HIV status during the
guilt/innocence phase of the trial. Franklin argued that this
evidence was not relevant, that if relevant its prejudicial value
outweighed its probative value, that it is inadmissible as "evidence
of other crimes, wrongs, or acts," and that he had not been notified
in advance that it would be admitted as required by Texas criminal
procedure rules.

Writing for the court, Justice Grant found that Franklin's HIV
status was relevant information; because his stepdaughter was also
HIV+, evidence of Franklin's status tended to confirm that he
engaged in sex with her.  Grant also found that "the evidence is
prejudicial but does not appear to be necessarily so unfairly
prejudicial as to allow this Court to conclude that the trial court
abused its discretion by admitting the testimony."  Concluding that
this evidence did not fall into the "other crimes" category, Grant
stated that it was not covered either by the advance notification
requirement or the exclusionary rule for such evidence.  Finally,
Grant countered Franklin's contention that this evidence was hearsay
(the CPS worker testified that he was told by Franklin that he was
HIV+) by characterizing it as a declaration against interest and
thus eligible for a hearsay rule exception.  A.S.L.

 U.S. District Judge Holds Discharged Employee Entitled to Trial of
ADA Claim

Refusing to grant a motion for summary judgment, U.S. District Judge
Robert Carter found that a former employee of a music publisher is
entitled to a trial of his claim that he was fired because he has
AIDS.  _Wallengren v. Samuel French, Inc._, 1999 WL 65048 (S.D.N.Y.,
Feb. 11).  The case is premised on the Americans With Disabilities
Act and the New York State Human Rights Law, both of which have been
construed to prohibit unjustified discrimination against persons
with HIV infection or AIDS.

Charles Van Nostrand, president of Samuel French, Inc., hired Henry
Wallengreen to be his administrative assistant in March 1992.  In
May 1994, Wallengreen was stricken with PCP pneumonia and learned
for the first time that he was HIV+ and had full-blown AIDS.  After
he had missed work frequently for medical reasons, Van Nostrand
asked about his condition, and was told by Wallengren in January
1994 that he had AIDS.  Wallengreen alleges that beginning with this
revelation, he began to experience subtle forms of discrimination at
the hands of Van Nostrand, who had also made some remarks such as
"This could cost the company a lot of money."  Uneasy about the
status of his job, Wallengren began exploring other possibilities. 
Van Nostrand claims that he became aware of this when he opened a
letter from a Samuel French-represented author to Wallengren
referring to Wallengren's possible move to another publishing house. 
Van Nostrand confronted Wallengren with the letter, which elicited
a response that Wallengren was not planning to go anywhere else. 
However, Wallengren had actually scheduled a meeting with a French
competitor to discuss moving there and establishing a new line for
them, and Van Nostrand claims that he decided to fire Wallengren for
this disloyalty.  Wallengren, on the other hand, claims this is
pretextual and the discharge is due to AIDS.

Judge Carter refused to grant summary judgment because of these
disputed facts concerning the state of Van Nostrand's knowledge when
he made the discharge decision.  In deciding a summary judgment
motion, the court is not supposed to resolve disputed issues of
fact, but rather to view all factual allegations in the light most
favorable to the party opposing the motion.  "Although plaintiff's
disloyalty would have been grounds for immediate termination,"
concluded Carter, "it remains a question for the jury to determine
whether defendants did indeed know about the MTI proposal at the
time.  This determination will essentially turn on an assessment of
credibility."  Carter found that a reasonable jury could, if it
believed Wallengren's allegations and disbelieved Van Nostrand's,
conclude that Van Nostrand decided to discharge Wallengren because
of his disabling condition of AIDS.  A.S.L.

 NY Appellate Division Says Dentist Reasonably Draped Office Before
Treating HIV+ Patient

A dentist found liable for discrimination against an HIV+ patient
successfully appealed part of the judgment against him, in  _Cerio
v. N.Y.S. Div. of Human Rights_, 1999 WL 62215 (N.Y.App.Div., 4th
Dept., Feb. 10).  Petitioner Dr. Daniel Cerio was accused of
discriminating against respondent Wayne K. based on respondent's HIV
status.  The New York State Division of Human Rights issued findings
of fact that Dr. Cerio discriminated against Wayne K. by
overcharging him for a routine cleaning, scheduling his appointments
at the end of the day and week, and improperly draping all surfaces
of the examination room when treating him.  Wayne K. was awarded
$7,500 in damages.  Dr. Cerio appealed, and won a partial reversal
from a unanimous panel in an opinion by Justice Denman.

The Appellate Division found that the record supported the claim of
overcharging but did not support the finding that Dr. Cerio
discriminated against Wayne K. by draping all surfaces in the
examination room.  The court agreed with expert testimony that doing
so was a reasonable precaution in light of Wayne K.'s seropositive
status.  Likewise, scheduling him at the end of the day was also
found to be reasonable, considering the additional precautions with
respect to draping surfaces.  Finding the damage award excessive,
the court lowered it to $1,000.  _K. Jacob Ruppert_

Federal Court Denies Summary Judgment to Insurer in Pre-Existing
Condition Dispute

U.S. District Judge Deborah Batts (S.D.N.Y.) denied a defendant
insurance company's motion to dismiss in a benefits denial suit
questioning the insurer's ability to diagnose a claimant as having
AIDS despite the absence of any mention of AIDS in a claimant's
medical records at the time.  _Miller v. Metropolitan Life Insurance
Co._, 1999 WL 46722 (Feb. 1).  This case further questions an
insurer's logic as to the presence of pre-existing conditions as a
reason to deny claims as well as alerting them as to possible
HIV/AIDS patients.

Plaintiff Ken Miller has been HIV+ for over twelve years.  He began
working for his employer in Dec. 1994 and was placed on his
employer's long term disability benefits plan on Jan. 1, 1995.  The
plan contains a pre-existing condition limitation that denies
coverage for any condition for which an employee received medical
advice or treatment within 3 months prior to being covered by the
plan.  In Jan. 1995, Miller was diagnosed with AIDS, and in March he
became disabled due to treatment of Kaposi's sarcoma, an AIDS-
related cancer occurring mostly in male patients.  

In Aug. 1995, Miller filed for long term disability, which was
quickly denied by MetLife, based on Miller's treatment for
esophageal candidiasis (yeast infection) within the 3-month
proscriptive period before entering the plan.  MetLife's denial
stated that Miller "had an upper endoscopy which revealed esophageal
candid[iasis] which is a condition related to [AIDS];" therefore,
Miller had AIDS within this period which would be considered a
pre-existing condition.  Miller sought reconsideration, which
MetLife denied after submitting his claim to Dr. Joel Spear, who,
after a review of Miller's medical records and the Center for
Disease Control and Prevention's (CDC) surveillance case definition
of AIDS, concluded that the diagnosis of candidiasis within the 3
month proscriptive period confirmed Miller's diagnosis of AIDS. 
Miller disputed that esophageal candidiasis was ever diagnosed, and
argued that MetLife unreasonably relied upon Spear's opinion that
Miller had esophageal candidiasis, and therefore, AIDS.

Judge Batts found conflicting medical notes and letters persuasive
to the degree necessary to deny MetLife's motion for summary
judgment, finding a material issue of fact exists as to when or if
Miller was diagnosed with esophageal candidiasis within the
proscriptive period.  The first time Miller's claim was denied,
MetLife relied upon a letter from Dr. Karim Sayed confirming a
diagnosis of esophageal candidiasis. However, Sayed's notes as well
as the pathology report he relied upon (oddly dated after Sayed's
letter confirming diagnosis) indicated only "suspicious of candida." 
Furthermore, Miller's primary physician's notes indicated that
Miller only had endoscopy and gastritis and made no mention of
esophageal candidiasis. 

Going further, Batts was troubled by MetLife's position that, for
the purposes of evaluating individuals for long term disability
benefits, Miller's esophageal candidiasis necessarily meant that he
had AIDS.  MetLife made much of this finding in October of 1994,
when Miller was not diagnosed with AIDS until January of 1995. 
Finally, Batts criticized MetLife's reliance on the CDC's 1993
classification in concluding that the presence of esophageal candida
meant one had AIDS, when the CDC expressly disclaims reliance
thereon for the purpose of "statutory or legal requirements for
entitlement to Federal disability or other benefits. . ." 

Interestingly, Judge Batts is the first openly gay or lesbian judge
to be appointed to the Federal bench.  _K. Jacob Ruppert_

 N.Y. Trail Court Order Bifurcation of Malpractice Trial to Preserve
HIV Confidentiality

In _Levy v. Cody_, NYLJ, 2/18/99, p.32, col. 3 (N.Y. Sup. Ct., Kings
County), Justice Steinhardt was faced with the problem that counsel
for the medical malpractice defendant had obtained information that
the plaintiff is HIV+, and wanted to introduce that evidence at
trial (even though the malpractice claim has nothing to do with the
plaintiffþs HIV status) on the issue of damages, as bearing on the
plaintiffþs life expectancy.  Defendantþs counsel obtained the
information during discovery when the plaintiff executed a general
release to allow defendant to obtain copies of her medical records,
and various health care providers forwarded the information, even
though the release did not specifically authorize disclosure of HIV-
related information as required by New Yorkþs HIV confidentiality
law.

Conceding that information about the plaintiffþs HIV-status could be
relevant to the issue of damages, but also recognizing as valid
plaintiffþs claim that introduction of the information during trial
could be prejudicial to her claim on the merits, Justice Steinhardt
decided to bifurcate the trial.  During the first part, on
liability, information about the plaintiffþs HIV status may not be
introduced.  If the jury then concludes that Dr. Cody is liable for
malpractice, the plaintiffþs HIV status could be introduced during
the damage phase of the trial.

In an unfortunate postscript, Steinhardt noted that the plaintiff
had fallen ill with pneumonia after commencement of the proceedings,
so a mistrial was declared and the case will have to be rescheduled
when the plaintiff is sufficiently recovered to participate.  A.S.L.

 AIDS Litigation & Legislation Notes

U.S. District Judge Robert E. Coyle has sentenced Larry Clare
Greene, convicted of marketing fake HIV test kits for home use, to
63 months in prison.  Greene, a resident of Los Banos, California,
was convicted of five counts of mail fraud and 11 counts of wire
fraud, and was sentenced on Feb. 17.  His actions triggered a Food
and Drug Administration recall of the test kits, only the second
such recall of a medical device in the FDA's history.  The kits were
never approved by the FDA, but were marketed by Greene over the
Internet and in California pharmacies.  _Fresno Bee_, Feb. 18.

Justice John DiBlasi of New York State Supreme Court, Westchester
County, ruled in _Dunlap v. Levine_, NYLJ, 2/8/99, p. 31, col. 1,
that a physician, a hospital, a home health care organization and a
pharmaceutical supplier were not jointly and severally liable for
AIDS phobia developed by a funeral director who sustained a needle-
stick injury while removing an intravenous device from a corpse in
a private home.  Plaintiff Dunlap came to the get the body from an
apartment in New York City and, although unfamiliar with the devices
in question, attempted to remove the IV equipment from the decedent
and sustained a needle-stick, after which the decedent's nephew, who
was present in the apartment, told Dunlap that his uncle had died
from AIDS and assisted Dunlap in washing out the wound with clorox. 
Dunlap has been HIV-tested every six months since the incident, and
has always tested negative.  The court found that none of the
defendants had a duty to the plaintiff to remove the IV equipment
from the dead body, that the plaintiff had failed to follow standard
procedure in the funeral business for dealing with the situation,
and that the plaintiff's repeated negative HIV tests undermined the
genuineness of his emotional distress claim.

The U.S. Court of Appeals for the 2nd Circuit found that a prison
medical records clerk was entitled to qualified immunity in a suit
for damages for her release of a prisoner's medical records
containing HIV-related information in response to a discovery
request in an unrelated case "because the state of federal law
regarding what constitutes a valid waiver of the right to privacy in
one's HIV-related information was unclear at the relevant time
period."  _Washington v. Alston_, 1999 WL 66152 (Feb. 10)
(unpublished disposition).

U.S. District Judge Jack Weinstein (E.D.N.Y.) found that a downward
departure from sentencing guidelines was warranted for an HIV+
defendant who pled guilty to participating in a cocaine sales
transaction.  _U.S. v. Hammond_, NYLJ, 2/24/99, p.42, col.3. 
Hammond, a 50-year old addict who is married with several young
children, was arrested when he assisted a government informant in
obtaining the sale of 15 grams of cocaine.  Hammond suffers from
symptomatic HIV-infection, but has not progressed to full-blown
AIDS.  He has refused to undergo triple therapy while in prison,
contending that his life in prison would be much more difficult if
he drew attention to himself by seeking specialized AIDS treatment. 
He has been held in prison for 13 months while his case is pending. 
According to Judge Weinstein, the sentence guidelines would provide
for a sentence of 37 to 46 months in his case, but Weinstein found
that a downward departure was warranted based on Hammond's home
situation and his HIV condition.  Weinstein sentenced Hammond to 13
months, time served, and ordered his discharge from prison.

The Court of Civil Appeals of Alabama unanimously affirmed a
decision by the Madison Juvenile Court to terminate the parental
rights of M.W., who is HIV+, to her two young sons, one of whom is
also HIV+.  _M.W. v. State Dept. of Human Resources_, 1999 WL 77661
(Feb. 19).  The court found that M.W. was incapable of providing
adequate parental care to the children.  (The father's parental
rights had also been terminated, and he had not appealed.)  Included
in the record was evidence that the mother frequently slapped the
children, left them at home unattended for significant periods of
time, had not fixed home or employment, had tested positive for
cocaine, and had not cooperated in the treatment of her HIV+ son.

Mariam Henriquez was arrested on charges of prostitution in West
Palm Beach, Florida, on Nov. 24, 1998. after offering to perform
oral sex on an undercover police officer for $20.  When questioned
by police, she stated that she was HIV+, having been tested in
connection with a prior arrest.  On Feb. 18, she was sentenced to 90
days in jail under a 1997 Florida law that makes it a crime to
engage in sexual activity that is "likely to transmit" HIV.  As she
had been in jail since the arrest, the sentence amounted to little
more than time served.  Had she actually transmitted the virus, she
would be subject to imprisonment up to 15 years.  A press report on
the case did not specify the proof offered to show that an HIV+
woman performing oral sex on a man is "likely to transmit" HIV.  We
rather doubt it.  A spokesperson for the state's attorney's office
claimed that a recent study found that almost half of the
prostitutes (gender not specified in the press report) in West Palm
Beach are HIV+.  Sounds like sex panic time in WPB.  _Sun-Sentinel_,
Ft. Lauderdale, Florida, Feb. 19.

Pamela Wiser, who admitted to having sex with numerous men without
disclosing her HIV+ status in order to get "revenge" on her
boyfriend who she claims infected her, was sentenced to 26-1/2 years
in prison in the Circuit Court in Lewisburg, Tennessee, on Feb. 19. 
She pled guilty in December to 22 counts of knowingly exposing
sexual partners to HIV.  One of the men, who testified in the case,
said that he has since tested HIV+.  _Los Angeles Times_, Feb. 20.

The state of Pennsylvania has joined ten other states in passing
standby guardianship laws, which allow a parent to appoint a trusted
relative or other caretaker to "stand by" and be available to act as
the child's guardian upon the parent's death or incapacity.  The
ability to make such a legally binding appointment has become
crucial for HIV-infected parents as part of ordering their affairs
and ensuring that their children will be properly cared for.  The
Pennsylvania law went into effect on Feb. 22. A.S.L.

 International AIDS Law Notes

The Tokyo, Japan, District Court has issued the first ruling
interpreting Japan's HIV confidentiality law.  A dental student who
felt compelled to drop out of school after the university health
services disclosed his HIV status to the dental school charged a
violation of his confidentiality rights.  The court held that the
dental school was entitled to have this information in order to
protect patients.  Wrote Presiding Judge Ko Ito, "The dentistry
department needed to know about the plaintiff's physical condition
to prevent other patients from being infected with HIV during
clinical demonstrations and to see whether he was physically capable
of attending the demonstrations."  _Yomiuri Shimbun_, Feb. 23.

In France, the criminal case against a former prime minister and two
cabinet ministers on charges that in 1985 they authorized the use of
donated blood that had not been tested for HIV, thus causing the
infection of numerous French surgical patients, appeared to collapse
on Feb. 24 when the chief public prosecutor told the court that
there was insufficient evidence to support the charges.  The judges
were expected to rule during the first week in March.  _Atlanta
Constitution_, Feb. 25.

Clinton's first AIDS scandal?  Canadians allegedly infected as a
result of transfusion from blood collected in Arkansas in the early
1980s are calling for a U.S. Justice Department investigation of the
links between President Clinton, who was then governor of Arkansas,
and Leonard Dunn, a Clinton friend and head of Health Management
Associates, Inc., the firm that collected the blood and sold it for
use in Canada at a time when it is alleged that the FDA would not
allow sale of such blood in the U.S.  _Washington Times_, Feb. 25.

PUBLICATIONS NOTED

_Specially Noted:_

The Law Notes Case Table for 1998 is now available.  It can be
accessed on-line in the Queer Resources Directory <www.qrd.org> or
obtained in hard copy from Daniel R Schaffer, our circulation staff
member (see masthead for contact information).  The Case Table will
be sent at no charge to LeGaL members and Law Notes subscribers; the
charge for others is $5.

LESBIAN & GAY & RELATED LEGAL ISSUES:

Allen, Ernie, and Nadine Strossen, _Megan's Law and the Protection
of the Child in the On-Line Age_, 35 Amer. Crim. L. Rev. 1319
(Summer 1998).

Ayres, Susan, _Coming Out: Decision-Making in State and Federal
Sodomy Cases_, 62 Albany L. Rev. 355 (1998).

Ball, Carlos A., and Janice Farrell Pea, _Warring With Wardle:
Morality, Social Science, and Gay and Lesbian Parents_, 1998 U. Ill.
L. Rev. 253 (see article by Lynn D. Wardle, below).

Bonauto, Mary, Susan M. Murray, and Beth Robinson, _The Freedom to
Marry for Same-Sex Couples: The Opening Appellate Brief of
Plaintiffs Stan Baker et al. In_ Baker et al. v. State of Vermont,
5 Mich. J. Gender & L. 409 (1999).

Brill, Norman Q., _Is Homosexuality Normal?_, 26 J. Psychiatry & L.
219 (Summer 1998).

Carter, Stephen L., _"Defending" Marriage: A Modest Proposal_, 41
Howard L. J. 215 (Winter 1998)(part of symposium issue).

Eckols, Linda S., _The Marriage Mirage: The Personal and Social
Identity Implications of Same-Gender Matrimony_, 5 Mich. J. Gender
& L. 353 (1999).

Edwards, Susan S. M., _On the Contemporary Application of the
Obscene Publications Act 1959_, Crim. L. Rev. 843 (Dec. 1998)
(U.K.).

Eskow, Lisa R., and Kevin W. Cole, _The Unqualified Paradoxes of
Qualified Immunity: Reasonably Mistaken Beliefs, Reasonably
Unreasonable Conduct, and the Specter of Subjective Intent That
Haunts Objective Legal Reasonableness_, 50 Baylor L. Rev. 869 (Fall
1998).

Hardaway, Robert M., Miranda K. Peterson and Cassandra Mann, _The
Right to Die and the Ninth Amendment: Compassion and Dying After_
Glucksberg _and_ Vacco, 7 Geo. Mason L. Rev. 313 (Winter 1999).

Haynes, Rachel, _Bisexual Jurisprudence: A Tripolar Approach to Law
and Society_ (book review), 5 Mich. J. Gender & L. 229 (1999).

Hoye, William P., and William A. Hahn, _Beyond the Camel's Nose:
Institutional Liability for Peer Sexual Harassment on Campus_, 50 S.
Car. L. Rev. 55 (Fall 1998).

Rubin, Peter J., _Equal Rights, Special Rights, and the Nature of
Antidiscrimination Law_, 97 Mich. L. Rev. 564 (Nov. 1998).

Wardle, Lynn D., _Fighting with Phantoms: A Reply to_ Warring with
Wardle, 1998 U. Ill. L. Rev. 629 (see article by Ball & Pea, above).

Yoshino, Kenji, _Assimilationist Bias in Equal Protection: The
Visibility Presumption and the Case of "Don't Ask, Don't Tell", 108
Yale L. J. 485 (Dec. 1998).

_Student Notes & Comments:_

Albertyn, Cathi, and Beth Goldblatt, _The Decriminalization of Gay
Sexual Offences:_ The National Coalition for Gay and Lesbian
Equality v The Minister of Justice and others, 14 South African J.
Hum. Rts. 461 (1998).

Bolding, Mary, _California's Registration and Community Notification
Statute: Does it Protect the Public From Convicted Sex Offenders?_,
25 Western St. U. L. Rev. 81 (Fall 1997).

Davie, Larry D., _Boys Can No Longer Just Be Boys: Same-Sex Sexual
Harassment Perpetrated by Heterosexuals Found Actionable Under Title
VII_, 23 S. Ill. U. L. J. 239 (Fall 1998).

Fernsler, Stephie-Anna Kapourales, _Pennsylvania's "Registration of
Sexual Offenders" Statute: Can it Survive a Constitutional
Challenge?_, 36 Duquesne L. Rev. 563 (Spring 1998).

Keiser, Debra M., _Regulating the Internet: A Critique of _Reno v.
ACLU, 62 Albany L. Rev. 769 (1998).

Law, Erin J., Oncale v. Sundowner Offshore Services, Inc._: The
United States Supreme Court Holds That Same-Sex Sexual Harassment Is
Actionable Under Title VII_, 73 Tulane L. Rev. 723 (Dec. 1998).

Long, Jason C., _Housing Discrimination and the Status of Unmarried
Cohabitants -- Living with_ McCready v. Hoffius, 76 U. Detroit Mercy
L. Rev. 99 (Fall 1998).

Nixon, Christopher T., _Should Congress Revise the Tax Code to
Extend the Same Tax Benefits to Same-Sex Couples as are Currently
Granted to Married Couples?: An Analysis in Light of Horizontal
Equity_, 23 S. Ill. U. L. J. 41 (Fall 1998).

Ramachandran, Banu, _Re-Reading Difference: Feminist Critiques of
the Law School Classroom and the Problem With Speaking From
Experience_, 98 Col. L. Rev. 1757 (Nov. 1998).

Todd, Meredith M., _Are Schools Liable for Student-on-Student Sexual
Harassment Under Title IX?_, 63 Mo. L. Rev. 1049 (Fall 1998).

_Specially Noted:_

_The Constitutional Underclass: Gays, Lesbians, and the Failure of
Class-Based Equal Protection_, by Evan Gerstmann (Univ. of Chicago
Press, 1999), presents a detailed analysis of how the courts have
treated equal protection claims and the way convention equal
protection jurisprudence has fallen short of providing true equality
for lesbian and gay litigants.  Gerstmann is particularly critical
of the "class based" approach to equal protection.

Symposium: Law and the Politics of Marriage: Loving v. Virginia
After Thirty Years, 41 Howard L.J. No. 2 (Winter 1998).

AIDS & RELATED LEGAL ISSUES:

Anderson, Allen F., and Xu Hua, _Guangxi on the Precipice: Drug
Abuser Behavior and the Nascent Spread of HIV in One Chinese
Region_, 42 Int'l J. of Offender Therapy & Comp. Criminology 369
(Dec. 1998).

_Student Notes & Comments:_

Blayer, Stacey D., _But Names Will Never Hurt Me: HIV Surveillance
& Mandatory Reporting_, 39 Boston Coll. L. Rev. 1175 (Sept. 1998).

Dudley, Allen, _Rights to Reasonable Accommodation Under the
Americans With Disabilities Act for "Regarded As" Disabled
Individuals_, 7 Geo. Mason L. Rev. 389 (Winter 1999).

Koziar, Jeffrey, _Judicial Estoppel and the Americans With
Disabilities Act: Should the Courts Defer to the EEOC?_, 50 Rutgers
L. Rev. 2259 (Summer 1998).

Mabey, Tamara Lynn, Smallwood v. State_: Maryland's High Court
Refuses to Permit the Fact Finder to Infer a Specific Intent to Kill
from AIDS Rape_, 27 U. Balt. L. Rev. 251 (Fall 1997).

Puma, Michael J., _Respecting the Plain Language of the ADA: A
Textualist Argument Rejecting the EEOC's Analysis of Controlled
Disabilities_, 67 Geo. Wash. L. Rev. 123 (Nov. 1998).

Walsh, Maureen R., _What Constitutes a "Disability" Under the
Americans With Disabilities Act: Should Courts Consider Mitigating
Measures?_, 55 Wash. & Lee L. Rev. 917 (Summer 1998).

_Specially Noted:_

Symposium: A World of Research Subjects, 28 Hastings Ctr. Report No.
6 (Nov/Dec 1998)(focus on ethical issues raised by research on AIDS
treatments in third world countries).

EDITOR'S NOTE:

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