Date: Sun, 30 May 1999 11:40:49 EDT
From: ASLeonard@aol.com

LESBIAN/GAY LAW NOTES
ISSN 8755-902109June 1999

Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 1
0013, 212-431-2156, fax 431-1804; e-mail: asleonard@aol.com or aleonard@nyls
.edu

Contributing Writers: Elaine Chapnik, Esq., New York City; Ian Chesir-Teran,
 Esq., New York City; Steven Kolodny, Esq., New York City; Todd V. Lamb, Esq
., New York City; Arthur J. Levy, Esq., Brooklyn, N.Y.; Mark Major, Esq., Lo
ng Island, New York; Sharon McGowan, Harvard Law Student, Cambridge, Massach
usetts; K. Jacob Ruppert, Esq., Queens, New York; Daniel R Schaffer, New Yor
k 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

SUPREME COURT OF CANADA STRIKES DOWN OPPOSITE-SEX DEFINITION OF SPOUSE IN LESBIAN ALIMONY CASE

Canadian same-sex couples took a major step towards equality on May 20, when
 the Supreme Court of Canada held (by 8-1) in _M. v. H._ (http://www.droit.umontreal.ca/doc/csc-scc/en/index.html) that a statute defining "spouse" as 
including unmarried opposite-sex but not same-sex partners contained 
unjustifiable sexual orientation discrimination, contrary to Section 15(1) of 
the Canadian Charter of Rights and Freedoms.  The Supreme Court had found such a d
efinition justified, by a 5-4 margin, in _Egan v. Canada_, [1995] 2 S.C.R. 5
13.  Rather than overrule _Egan_, the majority carefully distinguished it, p
lacing theoretical limits on the legal impact of _M. v. H_.  But the practic
al political impact of _M. v. H._ is likely to be sweeping.

M. and H. were two women who, during a 10-year relationship, had lived toget
her, purchased property together, and started an advertising business togeth
er.  When the relationship broke down, M. (the financially weaker party) sou
ght financial support from H. and brought a constitutional challenge to the 
only legal obstacle she faced: the definition of "spouse" in sec. 29 of Onta
rio's Family Law Act (FLA).  Under sec. 29, "spouse" is defined, solely for 
the purpose of support obligations, as a legally married spouse or "either o
f a man and woman who are not married to each other and have cohabited [live
d together in a conjugal relationship] ... continuously for a period of not 
less than three years."  Under sec. 30, "[e]very spouse has an obligation to
 provide support ... for the other spouse, in accordance with need, to the e
xtent that he or she is capable of doing so."

Justice Cory wrote for 6 of 9 judges with regard to Section 15(1), in spite 
of the Attorney General for Ontario's concession that the FLA contravened Se
ction 15(1) and had to be justified under Section 1 of the Charter, and the 
identical conclusion of 5 of 9 judges with regard to a similar definition of
 "spouse" in _Egan_.  The Court is reluctant to adopt any "formalistic or me
chanical" principles under Section 15(1) (e.g., all distinctions between unm
arried opposite-sex and same-sex partners constitute prima facie sexual orie
ntation discrimination and must be justified).  It prefers to conduct an ela
borate "purposive and contextual" analysis of each distinction to determine 
whether it in fact constitutes "discrimination."

Justice Cory began by observing that the appeal concerned only the Ontario l
egislature's extension of spousal support obligations to unmarried opposite-
sex but not same-sex couples, and not "whether same-sex couples can marry, o
r whether [they] must, for all purposes, be treated in the same manner as un
married opposite-sex couples."  In particular, the shorter qualification per
iod ("a relationship of some permanence") where an unmarried opposite-sex co
uple has a biological or adopted child was not in issue.  Nonetheless, the c
hallenged aspect of the definition of "spouse" in sec. 29 involved different
ial treatment.  "[S]ame-sex couples will often form long, lasting, loving an
d intimate relationships.  The choices they make in the context of those rel
ationships may give rise to the financial dependence of one partner or the o
ther."  And "there is nothing to suggest that [they] do not meet the legal d
efinition of `conjugal'."  Under sec. 29, "[they] are denied access to [the 
FLA's court-enforced system of support] entirely on the basis of their sexua
l orientation," which the Court unanimously held in _Egan_ to be an "analogo
us ground" of discrimination (roughly akin to a "suspect" or "quasi-suspect"
 classification in U.S. constitutional jurisprudence). 20
This differential treatment was "discriminatory" in a "purposive and context
ual" sense.  "It implies that [same-sex couples] are judged to be incapable 
of forming intimate relationships of economic interdependence as compared to
 opposite-sex couples ... [S]uch exclusion perpetuates the disadvantages [th
ey suffer] and contributes to the erasure of their existence ...  Therefore 
... the human dignity of individuals in same-sex relationships ... is violat
ed by the impugned legislation."

Justice Iacobucci, writing for 6 of 9 judges, considered the justifiability 
of the distinction under Section 1 of the Charter.  He began by holding that
 _Egan_ was not binding and that the FLA "must be evaluated on its own merit
s."  He then held that the opposite-sex definition of "spouse" was not ratio
nally connected to the twin objectives of the FLA: "[p]roviding for the equi
table resolution of economic disputes when intimate relationships between fi
nancially interdependent individuals break down," and "alleviating the burde
n on the public purse to provide for dependent spouses."  Instead, "[it] has
 the deleterious effect of driving a member of a same-sex couple who is in n
eed of maintenance to the welfare system and therefore imposes additional co
sts on the general taxpaying public."  Nor did the definition advance the On
tario government's two asserted objectives:  "improving the economic circums
tances of heterosexual women," and "the protection of children."  Heterosexu
al men had the right to apply for support, and it did not matter that gay me
n and lesbian women might need to do so less frequently than heterosexual wo
men "because their relationships are typically more egalitarian."  With rega
rd to children, the FLA is "simultaneously underinclusive and overinclusive 
... [O]pposite-sex couples are entitled to apply ... irrespective of whether
 or not they are parents and regardless of their reproductive capabilities o
r desires ... [And] an increasing percentage of children are being conceived
 and raised by lesbian and gay couples as a result of adoption, surrogacy an
d donor insemination."

Justice Iacobucci went on to reject several other arguments.  First, the com
mon law of constructive trusts and contracts does not provide an adequate al
ternative to the FLA.  Second, the fact that "some individuals in same-sex r
elationships, including H. herself, have expressed reservations about being 
treated as `spouses' within the family law system ... [is not] a reason to d
efer to the choices of the legislature ... [G]iven that the members of equal
ity-seeking groups are bound to differ to some extent in their politics, bel
iefs and opinions, it is unlikely that any sec. 15 claims would survive sec.
 1 scrutiny if unanimity with respect to the desired remedy were required." 
 Third, the case did not require him "to consider whether financially interd
ependent individuals who live together in non-conjugal relationships, such a
s friends or siblings, ought to be constitutionally entitled to apply for su
pport ... Any such claims would require an independent constitutional analys
is ..."

Turning to the remedy, Justice Iacobucci declined to follow the Ontario Cour
t of Appeal in reading the words "a man and a woman" out of sec. 29 and repl
acing them with the words "two persons."  He did so because the sec. 29 defi
nition of "spouse" (in Part III of the FLA) did not apply to cohabitation an
d separation agreements under Part IV of the FLA, which permit unmarried opp
osite-sex couples to contract out of their Part III support obligations.  "[
S]ame-sex partners would find themselves in the anomalous position of having
 no means of opting out of the default system of support rights."  Moreover,
 the sec. 29 definition of "spouse" does apply to dependants' tort claims fo
r damages under Part V of the FLA.  Justice Iacobucci did not think it "safe
 to assume that the legislature would have enacted the statute in its altere
d form [with same-sex couples acquiring the right to bring tort claims as de
pendants after the death of one partner]."  Instead, he declared sec. 29 to 
be "of no force or effect," but suspended his declaration for six months, be
cause it "may well affect numerous other statutes that rely upon a similar d
efinition of  the term `spouse'.  The legislature may wish to address the va
lidity of these statutes in light of the unconstitutionality of sec. 29 of t
he FLA ... [I]f left up to the courts, these issues could only be resolved o
n a case-by-case basis at great cost to private litigants and the public pur
se ...[T]he legislature ought to be given some latitude in order to address 
these issues in a more comprehensive fashion."  20

It is difficult to assess the legal impact of _M. v. H._  The Court was care
ful to limit the issue before it to a particular statute excluding same-sex 
couples from a system of court-enforced support obligations.  Indeed, Justic
e Iacobucci made no attempt to overrule _Egan_, which involved a similar opp
osite-sex definition of "spouse," but in relation to a federal pension benef
it.  Instead, he distinguished _M. v. H._ as involving "no concern regarding
 the financial implications of extending benefits to gay men and lesbians ..
. [R]ather than increasing the strain on the public coffers, the extension w
ill likely go some way toward alleviating those concerns because same-sex co
uples as a group will be less reliant on government welfare ..."  Reading _E
gan_ and _M. v. H._ together, one could take the cynical view that the Court
 is happy to require equal rights and obligations for same-sex couples _inte
r se_, because these do not increase and may reduce public expenditure, but 
not necessarily vis-85-vis third parties, including governments.  The Court
 has certainly left itself lots of room to distinguish _M. v. H._ in future 
cases involving public expenditure, marriage or children.

However, the federal and provincial governments and legislatures in Canada a
re unlikely to bother with these legal technicalities.  They are likely to r
ead _M. v. H._ as requiring the amendment of hundreds of federal and provinc
ial statutes containing similar opposite-sex definitions of "spouse."  Omnib
us bills amending all of these statutes, by extending the definitions to inc
lude same-sex couples, could be introduced within the next couple of years. 
 Qu82bec did so earlier in May before the Court's judgment (see Bill 32, ht
tp://www.assnat.qc.ca/eng/publications/projets-loi/publics/99-a032.htm).  On
ly Alberta, Canada's most conservative province, may balk and consider a ref
erendum on invoking Section 33 of the Charter to avoid compliance with _M. v
. H._  If these amendments are adopted, same-sex couples will be treated une
qually by legislation only where rights and obligations are restricted to ma
rried opposite-sex couples (e.g., the FLA with regard to division of propert
y and possession of the matrimonial home).  _M. v. H._ thus sets the stage f
or a same-sex marriage case under the Canadian Charter. _Robert Wintemute_

LESBIAN/GAY LEGAL NEWS20

Nevada Bans Sexual Orientation Discrimination in Employment

Nevada will shortly become the eleventh state to ban sexual orientation disc
rimination in employment.  Assembly Bill 311, introduced by the legislature'
s only openly-gay member, Assemblymember David Parks of Las Vegas, was passe
d by the Assembly on April 1 by a vote of 30-11, and passed the Senate in sl
ightly different form on May 20 by a vote of 13-8.  On May 22, the Assembly 
concurred in the Senate amendment and the bill was delivered to Governor Ken
ny Guinn on May 24. Gov. Guinn, a Republican, indicated on May 27 that he in
tended to sign the bill within a few days.  Several Republican members of th
e legislature had crossed party lines to vote for the bill. _Las Vegas Sun_,
 May 28; _Los Angeles Times_, May 29.20

Unlike most of the so-called "gay rights bills" enacted by other states, the
 Nevada bill only addresses employment discrimination, leaving to another da
y the issues of housing, public services and accommodations, and credit, iss
ues normally addressed in such civil rights measures.  The bill narrowly def
ines "sexual orientation" as "having or being perceived as having an orienta
tion for heterosexuality, homosexuality or bisexuality," so its possible app
lication to transgendered people is unclear. Only workplaces with 15 or more
 employees will be covered.

Perhaps the greatest departure from the approach of other states is embodied
 in the amendment added in the Senate, which exempts from compliance all non
-profit organizations recognized by the federal Internal Revenue Service und
er sec. 501(c)(3).  This rather broad exemption would apparently rule out se
xual orientation discrimination claims against not-for-profit hospitals, pri
vate schools, religious organizations, charities, and other public interest 
entities that enjoy tax exempt-tax deductible status.  The amendment appears
 to have been motivated primarily by legislators' concerns about shielding t
he Boy Scouts of America from any challenge to its anti-gay policies, as wel
l as insulating religious organizations and their affiliated hospitals and s
chools from having to comply. 20

The measure will take effect on October 1, 1999. A.S.L.

Supreme Court Upholds Private Right of Action for Student-on-Student Sexual 
Harassment Under Title IX of the Education Amendments of 1972

In a decision that may have particular significance for lesbian and gay publ
ic school students, the U.S. Supreme Court ruled on May 24 that students who
 suffer sexual harassment from their peers may sue their school districts un
der Title IX of the federal Education Amendments of 1972.  The 5-4 decision 
in _Davis v. Monroe County Board of Education_, 1999 WL 320808, exposed a fi
erce argument among the justices over the proper allocation of authority bet
ween the federal government and local school boards about how to address the
 sometimes rambunctious conduct of public school students.

The case arose  during the 1992-93 school year when 5th grader Lashonda Davi
s complained that a boy in her class was subjecting her to harassment, inclu
ding unwanted sexual touching and sexual comments.  She complained to her te
acher, her gym coach, and the school principal, and her parents also called 
the school to complain, but they allege that the school refused to take the 
situation seriously and no disciplinary or corrective action was taken again
st the boy.  According to Davis's complaint, as the harassment continued her
 grades dropped, she contemplated suicide, and she feared a sexual attack fr
om the boy.  Ultimately, her parents brought the situation to the attention 
of the police, and the boy was prosecuted for sexual battery, to which he pl
ed guilty.

Davis's mother filed suit against the school district, alleging a violation 
of Title IX, which provides that "no person in the United States shall, on t
he basis of sex, be excluded from participation in, be denied the benefits o
f, or be subjected to discrimination under any education program or activity
 receiving Federal financial assistance."  The federal district court dismis
sed the case, finding that the school district could not be held liable for 
harassment perpetrated by students.  A 3-judge panel of the 11th Circuit rev
ersed, but was then reversed in turn by the Circuit en banc.  The Supreme Co
urt granted certiorari, noting that the lower federal courts are sharply spl
it over this issue.

In her opinion for a bare majority of the Court, Justice Sandra Day O'Connor
 emphasized that the school district cannot be held liable for harassment by
 students, but that it could be held liable for failing to take steps to rem
edy the situation once it was brought to the attention of school officials. 
 O'Connor observed that if harassment was so severe and pervasive that it pr
event the victim from enjoying the benefits of the educational program, and 
the school, knowing of this, did nothing about it, the resulting situation s
eemed to come clearly within the language of the statute.  O'Connor pointed 
out the similarity with last term's decision in _Gebser v. Lago Vista Indepe
ndent School District_, 524 U.S. 274 (1998), in which the Court upheld a cau
se of action under Title IX against a school district which allegedly failed
 to take steps to remedy a situation where a teacher initiated a sexual rela
tionship with a student.  As in this case, she emphasized, the Court was not
 finding the school district vicariously liable for the teacher's conduct, b
ut rather was finding the school district potentially liable for failing to 
take steps to remedy the situation after it was brought to the district's at
tention.

The decision drew a strong dissenting opinion from Justice Anthony M. Kenned
y, joined by Chief Justice Rehnquist and Justices Scalia and Thomas.  Kenned
y argued that Title IX, which is premised on the spending power of Congress,
 falls within the area in which the Court has traditionally insisted on limi
ting private causes of action to situations where Congress has clearly speci
fied the prohibited conduct.  He insisted that when the Education Amendment 
Act of 1972 was passed, Congress could not have contemplated that it was imp
osing damage liability on school districts for sexual harassment of students
 by other students.  For one thing, as of 1972 the federal courts had not ye
t accepted the theory that sexual harassment violates laws against sex discr
imination.  For another, the statute itself clearly imposes liability on fed
eral funding recipients for their own behavior and policies, and by extensio
n for the behavior and policies of their contractors (e.g., a school could b
e held liable for sex discrimination if it contracted with a company to run 
its cafeteria and that company engaged in sex discrimination), but nowhere m
entions any liability for the conduct of students. 20

Kennedy emphasized that the Court's decision could open the floodgates to nu
merous expensive lawsuits by disgruntled students, and that given the unpred
ictable conduct of students, who are just learning how to behave with their 
peers, the result could be a major diversion of scarce educational resources
 into paying damage awards.  Kennedy suggested that a decision to risk such 
a diversion of resources should not be made by the Court, and clearly had no
t been made by Congress, which has no general legislative authority in the a
rea of local educational policy. 20

Because this is a statutory interpretation case, it is possible that Kennedy
's dissent will inspire Congress to address the issue through amendments of 
Title IX.  Kennedy pointed out that, unlike Title VII, which deals with work
place sex discrimination, Title IX contains no limitations on damage awards,
 and Congress might be inspired to address that issue.  Contrarily, Congress
 might even react against the majority decision by amending Title IX specifi
cally to exclude or limit private rights of action.

If it withstands Congressional reaction, the decision could be particularly 
significant to sexual minority students, who are the particular targets of h
arassment in the nation's public schools.  Since the landmark 1997 decision 
by the 7th Circuit in _Nabozny v. Podlesny_, gay students in several parts o
f the country have initiated legal action against school authorities who hav
e failed to address the problem of anti-gay sexual harassment in the schools
.  Indeed, the U.S. Department of Education reacted to _Nabozny_ by adopting
 that decision's conclusion that a school administration's failure to take s
teps against anti-gay sexual harassment is sex discrimination (since there w
as evidence that the school administration did take action to deal with hara
ssment of female students by male students) and incorporating the holding in
to guidelines indicating that the Department would consider failure of schoo
ls to take steps against known instances of anti-gay harassment as violative
 of Title IX.  A.S.L.

Air Force Appeals Court Rejects Challenge to Constitutionality of Military S
odomy Law As Applied to Married Couple

Upholding the court martial conviction of First Lt. James M. Allen for, amon
g other things, consensual sodomy with his wife, the U.S. Air Force Court of
 Criminal Appeals voted 2-1 to reject a constitutional challenge to the appl
ication of Article 125 of the Uniform Code of Military Justice to consensual
 anal sex between spouses.  _U.S. v. Allen_, 1999 WL 305093 (April 22).

Allen's conduct came to light when a technician monitoring the Falcon Air Fo
rce Base Local Area Network noticed that somebody was downloading a file lab
elled "pictures.erotica" from the Internet onto an office PC.  The technicia
n determined that the file being downloaded was a GIF showing naked children
, and reported the matter.  It turned out that Allen was the only person wit
h access to the computer in question at the time of the downloading.  Air Fo
rce investigators, collaborating with local civilian law enforcement authori
ties, searched his home and seized materials showing that he had lots of por
nography on his computer, including child pornography.  When Air Force inves
tigators interrogated his wife, she told them she knew nothing about the por
nography, but that she could tell them things that would make them blush, in
cluding that Allen had encouraged her to engage in prostitution to earn mone
y at a time they were heavily in debt, that he had beaten her up, and that t
hey had anal sex together.

Allen was subsequently convicted at court martial for consensual sodomy, ass
ault and battery, conduct unbecoming an officer, soliciting his wife to comm
it prostitution, and transporting sexually explicit depictions of children i
n interstate commerce.  He was sentenced to dismissal from the service, tota
l forfeitures of pay and benefits, and seven years in prison.  On appeal, he
 argued that the consensual sodomy charges should have been dismissed based 
on the constitutional right of privacy.

Allen argued that consensual anal sex between spouses should come within the
 marital privacy right recognized by the Supreme Court in _Griswold v. Conne
cticut_, 381 U.S. 479 (1965).  He argued that _Bowers v. Hardwick_, 478 U.S.
 186 (1986), which held that homosexuals do not have a constitutional right 
to engage in sodomy, was distinguishable.  He managed to persuade Military J
udge Spisak, who argued that consensual anal sex between spouses was disting
uishable from other cases in which the Court of Military Appeals has upheld 
the application Article 125 to heterosexuals.  Those cases involved unmarrie
d persons, or situations where the sex went on in public or where one of the
 parties made it public by exhibiting a videotape to a friend.  In this case
, Spisak argued, marital privacy should prevail.

The two other members of the appellate panel, Judges Young and Schlegel, dis
agreed, each writing separately to argue that the Air Force appeals court co
uld not and should not go beyond existing precedents in which the Court of M
ilitary Appeals has upheld application of the sodomy regulations to heterose
xuals.  In addition, both judges argued that it was inappropriate to charact
erize Allen's conduct as consensual sodomy.  His wife had testified that she
 did not enjoy engaging in this activity, and that he had only succeeded in 
getting her to participate after extensive importuning on his part.  They co
ncluded that it was not truly consensual, so even if the privacy right would
 apply to consensual acts, they would still not apply it in this case.  A.S.
L.20

Emotional Distress Claim Based on Employer's Alleged Homophobic Investigatio
n of Supervisor Survives Dismissal Motion

Claims of intentional infliction of emotional distress and negligent inflict
ion of emotional distress arising out of an employer's alleged investigation
 of a supervisor's sexual orientation were sufficient to survive a motion to
 dismiss in a wrongful termination lawsuit.  _Nance v. M.D. Health Plan, Inc
._, 1999 WL 279733 (U.S.Dist.Ct., D.Conn. March 31).

After being terminated from his job, James Nance brought a wrongful terminat
ion action against M.D. Health Plan pursuant to Title VII and the Connecticu
t civil rights law alleging discrimination and improper conduct in connectio
n with his termination. Nance, an African-American, was terminated after all
egations of sexual harassment were brought against him by subordinates.  The
 investigation, started without Nance's knowledge, was based upon allegation
s that Nance had pinched a male employee's buttocks, had disciplined an empl
oyee who had rebuffed his advances, and gave favorable treatment to male emp
loyees who socialized with him after work.
0DNance alleged that the investigation was improper in that it was initiate
d without his knowledge, it included interviews with Nance's subordinates re
garding his sexual orientation and private conduct outside work, that the in
vestigation was limited to four of the eighteen employees on his staff, that
 Nance was never informed of the results and that a similarly charged white 
employee was not terminated.

In this decision, the court dealt with the defendant's motion to dismiss com
mon law claims of intentional and negligent infliction of emotional distress
 that were appended to the discrimination complaint. Under Connecticut law, 
a claim for intention infliction of emotional distress must be supported by 
allegations of intentional actions wholly lacking in social utility.  Nance 
relied upon _Forbes v. Merrill Lynch_, 957 F.Supp. 450 (S.D.N.Y. 1997), to s
upport his contention that the inquiry into his sexual orientation alone was
 sufficient to survive a motion to dismiss his intentional infliction of emo
tional distress claim.  District Judge Arterton distinguished the _Forbes_ c
ase, however, noting that Mr. Forbes included allegations that his employer 
had screamed at him in public, made disparaging comments about homosexuals a
nd people with AIDS, and upon learning that Forbes had AIDS, sprayed Lysol o
n telephones and desks used by him.
0DNevertheless, the court denied the motion to dismiss the intentional infl
iction of emotional distress claim. Arterton stated: "[T]he reality of conti
nuing homophobia, discrimination and even fatal violence directed towards ho
mosexuals precludes the conclusion at this preliminary stage that the motiva
tion or circumstances of defendant's questioning does not constitute extreme
 and outrageous conduct."  Noting that gay employees may take great pains to
 conceal their sexual orientation while at work in order to avoid being vict
ims of such homophobia, Arterton concluded: "An employer's questioning that 
signals to others its belief that the subject employee is a homosexual in re
ckless disregard of a foreseeable, unsavory response by those persons thus i
nformed, could constitute extreme and outrageous conduct."

Similarly, Nance's allegations of negligent infliction of emotional distress
, based upon unreasonable conduct in connection with the termination process
, also survived defendant's motion to dismiss.  The court again held that at
 such an early stage of the litigation, the factual record was insufficient 
to determine the investigation and subsequent termination of Nance constitut
ed unreasonable conduct in connection with his termination. _Todd V. Lamb_

Federal Court in Pennsylvania Denies Employer's Summary Judgment Motion in S
ame-Sex Harassment Case

U.S. District Judge Padova (E.D.Pa.) has denied the employer's motion to dis
miss a same-sex harassment complaint under Title VII as well as supplementar
y state law tort claims, finding that the "personal animosity" underlying ho
stile environment harassment comes within a recognized exception to the excl
usivity of a Workers Compensation remedy.  _Merritt v. Delaware River Port A
uthority_, 1999 WL 285900 (April 20).

John Merritt began working as a controls technician on the Walt Whitman Brid
ge, which crosses the Delaware River, in 1981.  He claims to have been subje
ct to sexual harassment by John Pilla, a custodian assigned to the Bridge.  
According to Merritt's complaint, Pilla has repeatedly solicited Merritt for
 sex, both anal and oral, and has repeatedly grabbed at Merritt's genitals. 
The defendant describes Pilla as a "mentally challenged individual" who has 
occasionally used inappropriate sexual language with employees of both sexes
.  Merritt alleged that when he reported these incidents to his supervisors,
 they responded by laughing, ignoring his complaints, and asking him to keep
 things quiet because his complaints could get them in trouble.

Merritt's lawsuit alleges sexual harassment under Title VII of the Civil Rig
hts Act and Section 1983 of the Civil Rights Act of 1871, and negligent rete
ntion and supervision and intentional infliction of emotional distress under
 Pennsylvania state law.  In addition, Mrs. Merritt, a co-plaintiff, alleges
 loss of consortium due to the emotional distress suffered by her husband. I
n moving for summary judgment, the defendant claimed immunity from liability
 under Pennsylvania law as a joint Pennsylvania-New Jersey public authority,
 and also claimed that Merritt failed to state a sex discrimination claim be
cause Pilla was an "equal opportunity harasser" of persons of both sexes.  T
he defendant also claimed Merritt's allegations were insufficient to hold th
e employer liable for Pilla's misconduct.  The defendant argued that Merritt
's tort claims were displaced by the Workers Compensation Law, and that he f
ailed to allege facts egregious enough to state a claim for intentional infl
iction of emotional distress.

Denying the motion, Judge Padova found that there was a genuine issue of mat
erial fact as to whether Pilla was a so-called equal opportunity harasser.  
Said Padova, "reading the Rule 56 record in the light most favorable to Plai
ntiffs, the Court concludes that an inference of sex-based harassment can be
 drawn from the facts. . .," so summary judgment would not be appropriate.  
In addition, Padova found that Merritt's allegations that his supervisors re
fused to take any action on his complaints were sufficient to impose respond
eat superior liability on the employer.

Padova rejected the defendant's argument that it was immune to suit on Penns
ylvania state law theories, finding that the authorizing legislation made th
e defendant an entity entitled to sue or be sued in the courts of both state
s.  Padova noted that the defendant had consented to be sued under Pennsylva
nia's Workers Compensation Act, and that all the alleged conduct occurred on
 the Pennsylvania side of the bridge.  As to the Workers Compensation argume
nt, Pennsylvania recognizes an exception for injuries caused by "third parti
es" (i.e., individuals other than the employer) motivated by personal animos
ity.  Padova found that a fellow employee's personally motivated acts of sex
ual harassment would fall into this exception. 20

As to the intentional infliction of emotional distress claim, Padova found M
erritt's allegations to be sufficient to withstand the motion.  "Here, as se
t forth in Plaintiffs' Rule 56 submission, Pilla repeatedly exposed himself 
to Merritt, touched Merritt's genitals on many occasions, and engaged in mas
turbation while calling out Merritt's name.  Pilla's conduct took place over
 a period of nine months. When Merritt reported Pilla's conduct to his super
visors, they reacted to his complaints with laughter, inaction, and efforts 
to hide Pilla's conduct by asking Merritt to keep quiet.  For these reasons,
 the Court concludes that this may well be the rare case. . . where the cond
uct directed at Merritt that took place in the DRPA workplace is so outrageo
us that it offends all notions of decency and should be regarded as atrociou
s and utterly intolerable in a civilized society."

Padova also refused to grant summary judgement on the loss of consortium cla
im, in light of the rulings on the other claims.  A.S.L.

8th Circuit Denies Habeas Corpus Petition From Gay Man On Death Row

A gay man convicted of the brutal murder of a 16-year-old boy and sentenced 
to death by a Missouri jury lost his bid for habeas corpus when a panel of t
he U.S. Court of Appeals for the 8th Circuit ruled on May 11 that his consti
tutional rights were not violated when the prosecutor introduced evidence th
at he was gay and was the lover of his co-defendant.  _Lingar v. Bowersox_, 
1999 WL 289182.  The court also rejected a claim of ineffective assistance o
f counsel, a conclusion from which one member of the panel dissented.

Stanley Lingar, then 22, and David Smith, then 18, were lovers.  They were o
ut drinking and driving around Doniphan, Missouri, on the night of January 5
, 1985.  According to Smith's testimony, Lingar had consumed 30 cans of beer
, a quart of beer, and half a bottle of wine prior to the commission of the 
murder.  Lingar and Smith had picked up some hitchhikers while driving aroun
d.  They then came across a Jeep parked by the road with its hood up. When t
hey stopped, the 16-year old driver of the jeep, Scott Allen, told them he w
as out of gas.  They left the hitchhikers to watch Allen's car and took Alle
n to look for a gas station, but none was open.  Then Lingar drove out of to
wn, ordered Allen to take his coat off, stopped the car and ordered Allen to
 strip and masturbate in front of Lingar and Smith.  Allen was too cold and 
frightened to do so.  Lingar then drove them to his parents' house, where he
 retrieved a rifle, got back in the car, pointed it at Allen, and said, "Now
 I'll bet you're going to do what I say without arguing."  Lingar drove to a
 rural area, stopped the car, and again told Allen to masturbate.  Allen ask
ed if he could urinate first.  Lingar let him out of the car, then shot him 
while he was urinating.  Lingar shot him several times, hit him over the hea
d with a tire iron, and ran him over with the car.  Lingar and Smith later r
eturned to the scene, retrieved the body and dumped it in a river, after whi
ch they fled the jurisdiction.  The court's opinion is not clear about how t
he police identified them as the culprits.  Ultimately, Smith made a deal an
d turned state's evidence in exchange for a reduced charge.  His testimony i
s the source of this story, which was confirmed by forensic evidence and tes
timony of the hitchhikers.

At the penalty phase of the trial, after Lingar had been convicted of first 
degree murder, the prosecutor had Smith testify that he and Allen were lover
s.  Lingar's attorney asked the court to exclude this evidence on the ground
 that it was "irrelevant, immaterial, highly prejudicial, and inflammatory."
  The prosecutor argued that it related to the circumstances of the crime an
d Lingar's character, and that part of Lingar's motivation for killing Allen
 was to keep Lingar's homosexuality a secret.  The trial court overruled the
 objection and allowed the evidence in.  Although Smith was briefly question
ed about the nature of the relationship, the prosecutor did not refer to Lin
gar's homosexuality or to the theory about motivation during closing argumen
ts.  The jury recommended the death penalty, which was the sentence of the c
ourt, and the Missouri courts rejected Allen's appeals.

Lingar renewed his objection to this evidence in seeking a writ of habeas co
rpus, arguing that its admission had deprived him of a fair trial by the jur
y, and that the state's failure to warn his attorney that the issue would be
 raised had deprived him of the opportunity to voir dire the jury on their a
ttitudes towards homosexuality during the jury selection phase of the trial.
  Writing for the panel, Circuit Judge Fagg asserted that even if a constitu
tional issue were raised, Lingar would only be entitled to the writ if the e
rror actually harmed him.  "In other words, we must ask whether there is a r
easonable probability that the homosexuality evidence might have contributed
 to Lingar's death sentence."

The court concluded that admission of this evidence was "harmless," assertin
g that Smith's testimony on the point was quite brief and the state never ev
en mentioned it during closing arguments.  Furthermore, the homosexuality ev
idence had nothing to do with the two aggravating factors stressed by the st
ate during its closing argument in the penalty phase: the outrageousness of 
the crime, and the kidnapping aspect of the crime.  "Given the appalling fac
ts of the crime, which alone established the two aggravating circumstances, 
and the absence of compelling mitigating circumstances, it is clear beyond a
 reasonable doubt that admission of the evidence did not contribute to the j
ury's death verdict," asserted Fagg.

Lingar had also argued that his counsel was inadequate in various ways, incl
uding failing to procure and present evidence that Lingar had a history of s
exual abuse, substance abuse, and blackouts, and had a rather low IQ.  The m
ajority of the panel rejected this contention as well, drawing a dissent fro
m Circuit Judge Heaney, who found that "Lingar was clearly prejudiced by his
 counsel's failure to develop and present this evidence.  There is no reason
able probability that a jury advised of these circumstances would have impos
ed the death sentence on this 20-year-old, mentally retarded and mentally di
sturbed young man."  A.S.L.

Ohio Appeals Court Rules Sexual Orientation Discrimination Not Actionable on
 Same-Sex Harassment Claim

On March 26, the Ohio Court of Appeals, 3rd District, ruled in _Retterer v. 
Whirlpool Corporation_, 1999 WL 254412, that the Marion County Common Pleas 
Court had correctly refused to allow Douglas Retterer to amend his complaint
 in a pending lawsuit to add a count of same-sex harassment after the Suprem
e Court issued its decision in _Oncale v. Sundowner Offshore Services, Inc._
 last year. 20

Retterer had filed a complaint asserting tort claims and sexual harassment a
gainst two supervisors in connection with their physical assault against him
 in April 1994.  In the fall of 1995, the trial court granted summary judgme
nt in favor of the employer and the two supervisors on all claims; on appeal
, Retterer won a reversal on the tort claims.  As trial was pending, the Sup
reme Court issued its _Oncale_ decision.  Retterer filed a motion seeking to
 revive his harassment claim, contending that it had been rejected based on 
the view that same-sex harassment was not actionable as sex discrimination, 
but was unsuccessful.  At the subsequent trial of the tort claims, the emplo
yer was dismissed as a party and the jury decided in favor of the defendant 
supervisors.

On appeal, Retterer argued that the trial court erred in refusing to allow h
im to revive his harassment claim.  Writing for the appeals court, Judge Wal
ters observed that neither the trial court nor the appeals court in its earl
ier decision had granted the summary judgment based on a holding that same-s
ex harassment was not actionable.  Rather, according to Walters, that claim 
was rejected because Retterer failed to introduce evidence that he was haras
sed because of his sex.  Apparently, the evidence was that Retterer was sing
led out for harassment because he was, or was perceived to be, gay, and the 
court found that harassment based on sexual orientation was not actionable u
nder the sex discrimination statute.  Walters said that this analysis "was n
ot affected by nor contrary to the subsequent Supreme Court decision in Onca
le."20

Retterer is represented by the prominent gay Ohio attorney Eliot Fishman. A.
S.L.

Mississippi Appeals Court Rules on "The Case of the Back-Stabbing Lover"

The Court of Appeals of Mississippi has upheld the validity of a contract be
tween two gay men who ended their 9 year relationship after one of the men w
ounded the other with a knife during an argument.  _Estate of Reaves v. Owen
_, 1999 WL 309077 (Feb. 9).  The court rejected the contention that the cont
ract was void as a matter of law merely because it included provisions conce
rning the parties' "admittedly homosexual relationship."

After Reaves stabbed Owen in the back (for reasons not explained in the cour
t's decision), Reaves agreed to pay Owen a total of $59,000 in twelve monthl
y installments.  According to the express terms of the agreement, which was 
signed by both parties after each consulted with his own attorney, payments 
were to continue in the event that Reeves died before the final payment was 
made.  In exchange, Owen agreed to release Reeves from all civil liability a
rising from Reaves' intentional tort.  The agreement also included several o
ther provisions concerning the couple's break-up: the parties agreed not to 
have any further contact with one another, and Owen agreed to return to Reev
es certain personal property, including a car and antiques.

Reaves died of AIDS after making only one payment to Owen.  When the persona
l representative of Reaves' estate refused to continue making payments under
 the terms of the agreement, Owen filed a claim against Reaves' estate.  The
 personal representative challenged Owen's claim, alleging that the contract
 was the result of coercion stemming from a domestic dispute.  Reaves' estat
e also alleged that the contract was against public policy because palimony 
is not recognized in Mississippi since it is void as against public policy. 
20

After a hearing, the chancellor issued an order in favor of Owen:  "the proh
ibition against same sex marriages does not preclude individuals from exerci
sing their rights to privately commit by contract to spend their money and d
istribute their property as they wish."  The chancellor rejected the notion 
that the payments under the contract were palimony payments.

The court of appeals, in an opinion by Judge Diaz, agreed:  <!69>Despite num
erous attempts by the appellant to characterize this matter as a domestic di
spute between Owen and Reeves after their homosexual relationship ended, thi
s Court views it as a matter of contract law."  The court concluded that the
 contract arose out of an arms-length negotiation between the parties, and n
ot through fraud, hardship, oppression or mistake.  The court unanimously af
firmed the chancellor's order, and imposed a 15% statutory penalty against R
eaves' estate for pursuing an unsuccessful appeal. 20

Reaves' estate was represented by Thomas E. Royals and Cynthia A. Stewart; O
wen was represented by Mary Marvel Fyke. _Ian Chesir-Teran_

Wisconsin Appeals Court Upholds Conviction of Gay Man for Aggressively Solic
iting Teenager for Sex

In an unpublished ruling, The Court of Appeals of Wisconsin affirmed the con
viction of David P. Baker of attempted third degree sexual assault for attem
pting to persuade a teenage boy to have sex with him.  _State v. Baker_, 199
9 WL 270313 (Wis.App., May 5).  Baker did not appeal his convictions for mis
demeanor exposing genitals to a child and disorderly conduct.   20

According to the trial record, the victim, who was seventeen, came to Baker'
s tanning salon for an appointment and apparently overheard Baker talking wi
th a female customer about Baker's recent sexual activities.  Baker then tur
ned to the victim and asked him, now that he knew Baker was bisexual, if he 
would "ever be interested in doing anything with" Baker.  The teenager decli
ned "emphatically."  Baker then followed him to a tanning booth and stood in
 the doorway and  offered to oil him down and "touted" the "benefits of  sex
ual encounters with a man."   After each approach by Baker, the teenager dec
lined.  The teenager tried to close the door, but Baker's foot kept the door
 open.  Baker got down on his knees in front of the teenager in the booth, w
ho backed away, trying to move a chair so that he could back up further.  Ba
ker moved within three inches of the teenager's crotch and asked him to let 
him "do all the work," and "appeared" to try and take off the teenager's bel
t. The teenager told Baker that he "needed to leave."   Baker exposed himsel
f as the teenager tried to shut door and asked him to expose himself to Bake
r. The teenager, who was "pretty hysterical," declined again and asked Baker
 to leave. Baker left. The teenager estimated that he "expressed his lack of
 interest and consent" to Baker at least fifteen times. 20

Baker contended that he merely tried to "convince" the teenager to have cons
ensual sex, since he "never touched, grabbed or lunged" at the teenager. The
 Court of Appeals found, in denying Baker's appeal, that a key component was
 that when the teenager became "hysterical" when he was backed into a corner
, Baker did not desist in "convinc[ing]" him to have sex.  _Daniel R Schaffe
r_20

Minnesota Appeals Court Finds Discharge of Lesbian Not Pretextual

In an unpublished decision, the Court of Appeals of Minnesota affirmed summa
ry judgment in favor of the employer in a case alleging discrimination on th
e basis of sexual orientation.  _Grosberg v. Listening Ear Crisis Center Pro
ject, Inc._, 1999 WL 109603 (March 2). 20

Patricia Grosberg, a former client of Listening Ear Crisis Center, an organi
zation that works with victims of domestic violence, sexual assault, and oth
er crimes, became a volunteer at the agency and was hired for a full-time po
sition in December 1993.  She alleges that at the time she was hired, the ag
ency was aware of her sexual orientation, her past criminal history and her 
past chemical dependency problems.  Her employment went along just fine unti
l the board of directors hired a new executive director, Jodi Ritter, with w
hom Grosberg did not get along.  Although Grosberg continued to receive good
 evaluations for her work with clients, Ritter became so frustrated with her
 that she contacted a board member and said she was quitting because she cou
ld not deal with Grosberg.  The board member decided Ritter was more importa
nt to the agency, and discharged Grosberg.

Grosberg claimed that the agency's complaints about her conduct were pretext
ual, and she was really discharged because of her record of past chemical de
pendency and her sexual orientation.  Grosberg contended, in effect, that be
cause she had continued to receive good job evaluations, the complaints abou
t her conduct must have been pretextual. 20

The court found, in an opinion by Justice Amundson, that there was no real d
ivergence between Grosberg's allegations and the contentions of the defendan
t that Grosberg could not get along with Ritter and that Ritter interpreted 
Grosberg's aggressive behavior as insubordinate.  The court found that on th
is basis the defendant had established a legitimate, nondiscriminatory reaso
n for the discharge.  The opinion contains no discussion of whether Grosberg
's sexual orientation may have played a role in her inability to get along w
ith Ritter, other than to repeat Grosberg's statement that she did not belie
ve that the members of the board of directors treated her any differently fr
om other employees because of her sexual orientation.  A.S.L.

Hospital's Differential Treatment of Gay Appendectomy Patient May Violate Fe
deral Emergency Medical Treatment Act

A Kansas hospital may have violated the federal Emergency Medical Treatment 
and Active Labor Act (EMTALA) when two of its emergency room physicians requ
ired a gay man to submit to an HIV test and await the results of the test be
fore they would perform an emergency appendectomy.  _Blake v. Richardson_, 1
999 WL 319082 (U.S.Dist.Ct., D. Kans., April 1). 20

Joseph Blake came to the emergency room at Overland Park Regional Medical Ce
nter on March 24, 1997, "complaining of pain in the lower right quadrant of 
his abdomen, a condition that was eventually diagnosed as acute appendicitis
."  According to Blake's complaint, while he was awaiting treatment, Dr. Ral
ph Schutz asked him if he was gay, and when Blake responded affirmatively, S
chutz and Dr. Jay Richardson required him to consent to taking and awaiting 
the results of an HIV test before they would provide any treatment.  Blake, 
in pain and requiring urgent treatment, complied with their request, and aft
er the test results were received, an emergency appendectomy was performed. 
 Three days later, Blake was released from the hospital while still running 
a low grade fever, with no prescription for antibiotics.  Thereafter, Blake 
suffered a bowel obstruction and had to have a second operation to remove ga
ngrenous material from his abdomen.

Blake sued the two doctors, the medical center and an attending nurse, on a 
variety of claims, including a violation of EMTALA, codified at 42 U.S.C. se
c. 1395dd et seq., which provides, inter alia, that hospitals with emergency
 rooms may not discriminatorily refuse to provide emergency treatment.  In m
oving to dismiss the EMTALA count, the medical center claimed that the statu
te was only intended to deal with situations where a patient is denied treat
ment for economic reasons.  Rejecting this argument, District Judge Lungstru
m observed that the U.S. Court of Appeals for the 10th Circuit "has specific
ally held that plaintiff's status as indigent or uninsured is unnecessary to
 the maintenance of an EMTALA action."

On the other hand, EMTALA was not enacted as a federal medical malpractice s
tatute; it is an anti-discrimination measure.  Blake's theory of the case is
 that "unless all appendicitis patients are ordinarily required to wait for 
the results of an HIV screen before being rushed to surgery, once his sexual
 orientation was discovered by defendants, plaintiff was singled out and tre
ated differently than other similarly situated patients.  Thus,. . . OPRMC f
ailed to administer the same level of treatment regularly provided to patien
ts exhibiting acute appendicitis symptoms."  Judge Lungstrum found this theo
ry sound under the statute, and refused to dismiss the EMTALA claim.

However, the court agreed that assault and battery claims against the two do
ctors, premised on their refusing to provide treatment unless Blake consente
d to an HIV test, were barred by a one-year statute of limitations.  However
, Lungstrum noted that Blake was free to amend his complaint to convert thes
e claims to medical malpractice claims, which would not be time-barred.

The medical center and the third individual named defendant, a nurse who was
 in attendance during the incidents described in the complaint, also moved t
o be dismissed under the assault and battery counts.  The court found that n
o factual allegations implicated the nurse in any wrongdoing.  As to the hos
pital, the court found that a Kansas statute specifically exempts health car
e facilities from liability for state law damages on account of the actions 
of independent contractors, and that the doctors who were on duty in its eme
rgency room were independent contractors, not employees, so the medical cent
er was dismissed as a defendant on these claims.

Steve Matalone, II, and Rachel Foley of Kansas City represent Blake.  A.S.L.

N.Y. Court Upholds Asset Division Contract of Lesbian Couple

N.Y. Supreme Court Justice Herman Cahn has ruled that there should be a tria
l to determine how to split up the assets of a lesbian couple who had made a
 written agreement for a 50/50 asset division in case they split up.  _Oms v
. Joseph_, N.Y.L.J., 5/20/99, p. 30, col. 2 (Sup.Ct., N.Y. County). 20

According to the complaint filed by Tina Oms, Oms and Meril Joseph began liv
ing together as a couple in 1985.  Over the next ten years they bought a Man
hattan co-op apartment together and also acquired a place in the Hamptons.  
When their relationship began, Oms already owned a Brooklyn brownstone.  Oms
 and Joseph set up various brokerage, bank and other financial accounts begi
nning in 1990, mainly to receive an inheritance of about $1,000,000 from Jos
eph's mother to Joseph.  20

During the early years of their partnership, Oms pursued a career in real es
tate and Joseph practiced law.  In 1993, Joseph's employer asked her to relo
cate to Atlanta, Georgia.  Oms and Joseph then discussed how this would affe
ct their relationship, and they agreed that Oms would quit the real estate b
usiness and move down to Atlanta with Joseph.  On October 20, 1993, Joseph s
igned a written memorandum that Oms dictated to her, which stated: "To Tina,
 From Meril.  Because you are leaving your job and moving with me to Atlanta
 next month, I want to ensure you that should anything occur between the two
 of us to split us apart that you and I are to divide our assets 50/50 to re
flect the partnership that we share and the life we built together."

Oms and Joseph moved to Atlanta and bought a house and a Mercedes-Benz car. 
 While Joseph took up her law practice in Atlanta, Oms became the homemaker 
in the couple, giving up her career and becoming financially dependent on Jo
seph.  In May 1995, Joseph told Oms that she wanted to end their relationshi
p.  According to the papers filed in the lawsuit, both Oms and Joseph then e
ngaged in "wrongful conduct," including signing each other's names on variou
s documents to get access to money and the like.

Oms filed a lawsuit seeking enforcement of the October 1993 memorandum, whic
h Joseph opposed, claiming it was not a legally enforceable contract.  Justi
ce Cahn found that this constituted a unilateral contract.  In this case, Jo
seph promised that their assets would be split 50/50 in exchange for Oms giv
ing up her job and moving down to Atlanta with Joseph.  Cahn ruled that when
 Oms moved to Atlanta, she had accepted Joseph's offer and the contract beca
me binding.

However, Cahn found that the contract was ambiguous, because it did not spec
ify which assets were subject to the 50/50 promise.  Consequently, he ruled 
that it was impossible to dispose of the case without a trial, during which 
each of the women will have the opportunity to present evidence about what w
as intended to be covered by the contract.  In the meantime, Cahn ordered, b
y agreement of the parties, that the real estate they owned in New York be s
old off and the proceeds placed in an interest-bearing escrow account until 
the court has the information necessary to decide how it should be divided. 
 In addition, Cahn ordered that a conference be held in chambers to resolve 
who would have to disclose what in order for the case to go forward.  A.S.L.

Is Defense Counsel's Sexual Orientation Relevant in Defense of Accused Gay-B
asher?

In Washington v. Enault, 1999 WL 257645 (Wash. App.  Div. 1, Apr. 26), the a
ppellate court confirmed the conviction of Isaiah Enault for first degree mu
rder of a gay man.  The State had planned to offer evidence of Enault's anti
-gay animus at trial as motive.  Enault had planned to counter with a showin
g that his defense counsel was gay.  The State moved in limine to exclude th
is evidence.  The trial court granted the motion in limine, but ruled that t
his evidence could be introduced at trial if it proved relevant.  Although t
he state introduced this evidence at trial, defense counsel raised no object
ion.  Because there was no objection, this issue was deemed waived.  Further
 consideration of this matter was stayed pending resolution of other issues 
in the case currently on appeal before the Washington State Supreme Court.  
_Steve Kolodny_

Legislative Notes

New Hampshire Governor Jeanne Shaheen signed into law on May 3 a measure rep
ealing that state's ban on adoptions of children by gay people.  The new law
 also ends the ban on gay serving as foster parents. _Boston Globe_, May 4. 
The measure takes effect on July 2.  This action leaves Florida as the only 
state with a statutory ban on gays serving as adoptive or foster parents, an
d the ACLU has filed another lawsuit seeking to invalidate that ban on const
itutional grounds.

Domestic partnership issues have come to the fore in the California legislat
ure.  By a straight party-line vote late in May, the Senate and Assembly ext
ended eligibility for domestic-partner health benefits to the partners of le
gislators and their employees, according to a May 23 report in the _Washingt
on Times_.  The _Times_ claimed this made the California legislature the fir
st in the nation to take such an action; however, it is worth noting that th
e New York State Assembly has had a domestic partner benefits plan in place 
for five years.  Of wider import for Californians, on May 25 the California 
Senate approved a state domestic partnership bill that would establish a reg
istry for same-sex and opposite-sex domestic partners in the Secretary of St
ate's office, and would establish recognition of such partners for purposes 
of hospital visitation, beneficiary rights under wills, and conservator righ
ts in certain probate cases.  The measure as described in press reports seem
ed less extensive than a measure that passed the legislature in 1994 but was
 vetoed by then-Gov. Pete Wilson.  A more expansive domestic partnership mea
sure was then passed by the Assembly on May 27, 41-32, and now the measures 
will have to be reconciled. The Assembly measure requires health insurance c
ompanies doing business in the state to offer domestic partnership coverage 
on group policies if requested by employers, and should prove especially use
ful for employers seeking to qualify for contracts with the City of San Fran
cisco. As to whether Gov. Gray Davis would sign a domestic partnership bill,
 he is on record as supporting domestic partnership, and as Lt. Governor cas
t a tie-breaking vote in favor of adding a domestic partnership measure to a
n anti-same-sex marriage bill, which resulted in the withdrawal of that bill
 by its anti-gay sponsor, Sen. Pete Knight.  _Los Angeles Times_, May 26.

Broward County, Florida, Circuit Court Judge Robert Andrews ruled on April 3
0 that the county's recently enacted domestic partnership law does not viola
te state law.  _Concerned Citizens for Broward v. Broward County_.  Just day
s before the ruling, the county commission had amended the law to tie up som
e loose ends and to add a provision that the law should not be construed to 
violate any other local, state or federal law.  The plaintiffs in this chall
enge contended that the law violated the state's version of the Defense of M
arriage Act by purporting to create a new marital status for same-sex couple
s.  Andrews rejected the argument.  While acknowledging that there is some s
imilarity between marriage and domestic partnership, he noted that there wer
e significant differences.  Further, he rejected the argument that because t
he ordinance extends to non-marital partners certain benefits that state law
 affords to marital partners, the ordinance is in effect giving recognition 
to a new marital relationship.  _Sun-Sentinel_, Ft. Lauderdale, May 1.

In a preliminary vote on May 20, the Pittsburgh, Pennsylvania, City Council 
approved a plan to extend benefits for health insurance to same-sex partners
 and common law partners of non-union city employees.  Such benefits are alr
eady available to union-represented city employees as a result of collective
 bargaining, and the city administration reports that so far only five city 
employees have filed to obtain benefits for their partners.  The city has ab
out 4200 employees, of whom 3700 are union-represented.  The bill, which was
 supported by a vote of 5-2, requires applicants to provide evidence of fina
ncial interdependence in order to qualify for the benefits.  _Pittsburgh Pos
t-Gazette_, May 21. A.S.L.

Law & Society Notes

A Florida appeals court has ruled that a viable defamation claim was stated 
by a boy who was characterized on a radio talk show as a "drug using teenage
 homosexual prostitute" who had accompanied a public official to a social fu
nction for a fee.  In _Anson v. Paxson Communications Corp._, 1999 WL 270424
 (Fla.App., 4th Dist., May 5), the court reversed an order of dismissal, dis
agreeing with the circuit court's characterization of these remarks by a pai
r of talk radio hosts as "talk radio schtik" and thus protected statements o
f opinion, and ruled that the allegations of the complaint state a cause of 
action.

American Management Systems, a systems-integration and consulting company wi
th more than 3500 employees (and reportedly one of the largest employers in 
Fairfax County, Virginia), has extended health insurance benefits eligibilit
y to domestic partners of its employees, effective June 1.  _Washington Blad
e_, May 14.

A controversy continues between the Boy Scouts of America and the Unitarian 
Universalist Association.  Association-affiliated churches plan to continue 
awarding religion merit badges to young Unitarians who are Boy Scouts, even 
though the BSA wants to stop the practice because of the Association's conde
mnation of the Scouts' discriminatory policies towards gay people.  The Asso
ciation claims they've worked out a settlement of the controversy with the S
couts by making some emendations in a published manual, but the Scouts say t
he deal is no good because the Association persists in publishing their cond
emnation of the Scout policy in separate publications.  _Boston Globe_, May 
19.

The Broward County, Florida, Democratic Party has elected a transsexual who 
is in the midst of the sex reassignment process to be a member of its execut
ive committee.  Diane Arnold, formerly known as Dave Arnold, is a 64-year-ol
d retired New York State civil servant who commenced the sex change process 
after his wife Lenora died last year.  "I'm a transsexual," Arnold said.  "L
iving as a woman is something I thought about for the past 50 years, but I w
ould never do it while my wife was alive."  Arnold was an unsuccessful candi
date for mayor of Lauderdale Lakes in 1998.  _Ft. Lauderdale Sun-Sentinel_, 
May 24.  A.S.L.

Gay Groups Issue Custody Dispute Guidelines

A coalition of gay groups including Gay & Lesbian Advocates & Defenders (Bos
ton), Lambda Legal Defense & Education Fund, National Center for Lesbian Rig
hts (San Francisco), Lesbian & Gay Rights Project of the ACLU, Family Pride 
Coalition, and Children of Lesbians and Gays Everywhere (COLAGE) have joined
 together to issue Guidelines on custody disputes between same-sex couples. 
 The Guidelines were made available on GLAD's website (<http://www.glad.org>
) beginning May 3.  The participating groups expressed the hope that attorne
ys would use these Guidelines to assist their clients in achieving a resolut
ion of their custody disputes without damaging the community through bad cou
rt decisions. 20

The Guidelines urge parties to avoid the courts if at all possible, use medi
ation or other alternative dispute mechanisms, and if cases go to court, to 
refrain from making homophobic arguments or arguments that deny the reality 
of lesbian/gay family relationships.  Most importantly, the Guidelines empha
size that the legal system is generally hostile to same-sex family issues an
d is rarely willing to place the best interest of the child ahead of technic
alities concerning the standing of unrelated parents to bring custody or vis
itation claims.  A.S.L.

Litigation Notes

Newspapers reported at the end of May that U.S. District Judge Claudia Wilke
n (N.D.Cal.) issued two more decisions concerning San Francisco's ordinance 
that requires city contractors to provide domestic partnership benefits to t
heir employees, known as the Equal Benefits Ordinance.  The May 27 opinions 
were not available as we went to press, but will receive a full report in ou
r Summer issue.  In _Air Transportation Association v. San Francisco_, No. C
97-01763 CW, Judge Wilken ruled that United Airlines, which uses San Francis
co's airport as a major operating hub, must comply with the ordinance regard
ing "non-economic" benefits posing de minimis cost, such as marital leave an
d travel benefits.  Wilken had previously ruled that San Francisco could not
 compel the airlines to offer domestic partnership pension and health benefi
ts, due to federal preemption of airline regulation.  In the second case, _S
.D. Myers v. San Francisco_, No. C 97-04463 CW, Wilken rejected an attempt b
y an Ohio company that lost a $143,000 contract to perform maintenance on el
ectric transformers owned by the city's Public Utilities Commission to have 
the ordinance invalidated.  Myers is represented by Pat Robertson's American
 Center for Law and Justice, and the Center's chief counsel, Jay Sekulow, in
dicated that Wilken's ruling would be appealed to the 9th Circuit. An amicus
 brief in support of the ordinance was filed by Lambda Legal Defense & Educa
tion Fund, the ACLU of Northern California and the ACLU's National Lesbian &
 Gay Rights Project, and the National Center for Lesbian Rights. _San Franci
sco Chronicle_, _San Francisco Examiner_, _Lambda Press Release_, May 28.

On May 7, a Michigan jury found that The Jenny Jones Show, owned by Time-War
ner, was negligent in staging a program in which Scott Amedure, a gay man, s
poke of his sexual fantasies about Jonathan Schmitz, who claims to be hetero
sexual.  A few days after the show was taped, Schmitz shot Amedure to death.
  Schmitz was convicted of murder in 1996, but an appeals court threw out th
e conviction and a retrial will be held.  In this case, Amedure's family sue
d the television program for damages.  The jury awarded $5 million for Amedu
re's suffering, $10 million for loss of companionship, and $10 million for l
oss of future earnings.  Lawyers for Warner said they would appeal, and argu
ed that the verdict would have a chilling effect on all media by establishin
g a legal requirement to obtain psychological profiles of talk show guests t
o ensure against violent responses to embarrassing situations.

A sexual orientation discrimination filed under the Tompkins County, New Yor
k, Human Rights Ordinance was ruled untimely in _Parry v. Tompkins County_, 
1999 WL 256113 (N.Y.App.Div., 3rd Dept., April 29).  Nadine Parry was reassi
gned different duties as a youth counselor in Dec. 1995 after two female cli
ents claimed they felt uncomfortable with alleged physical contact by her.  
Parry believed her reassignment was unlawfully motivated by sexual orientati
on discrimination, and filed a grievance with her union as well as a complai
nt of violation of the local ordinance.  The union and Parry made a settleme
nt agreement on April 18, 1996, under which she was to return to work and th
e employer was to remove adverse documents from her files, but this agreemen
t fell apart, Parry resigned and moved out of state.  She filed a notice of 
claim against the county in December 1996, but didn't file her lawsuit until
 Dec. 31, 1997.  The county's motion to dismiss as untimely was granted.  Th
e court found that a one-year statute of limitations set by the ordinance ha
d been exceeded, since Parry didn't file her lawsuit until more than a year 
after the settlement fell apart.20

In _Benavidez v. U.S._, 1999 WL 317449 (May 20), the U.S. Court of Appeals f
or the 10th Circuit, reversing a decision by the U.S. District Court in New 
Mexico, found that a member of the Laguna Pueblo Indian Tribe who, as a boy,
 had been seduced into sexual activity by a male psychotherapist assigned to
 treat him by the Indian Health Service, could bring a claim against the gov
ernment for malpractice.  The government had argued successfully before the 
district court that in fact the complaint actually constituted an intentiona
l tort, as to which sovereign immunity is not waived under the Federal Tort 
Claims Act.  In an opinion by Circuit Judge Lucero, the court analyzed the p
recedents on patient-therapist sexual relationships and found that it was ir
relevant whether the sexual conduct appeared to be consensual, given the dep
endency nature of the relationship between a patient and therapist, and that
 claims such as this are customarily deemed to be malpractice (negligence) c
laims.

Bergen County, New Jersey, Superior Court Judge Sybil Moses has approved a s
econd adoption for Jon and Michael Galluccio, the gay couples whose joint ad
option of their first child in January 1998 resulted from the settlement of 
a lawsuit by which the New Jersey Division of Youth and Family Services chan
ged their policy against allowing unmarried couples to jointly adopt childre
n.  The Galluccio's had been serving as foster parents of Madison, their new
ly adopted daughter.  The Galluccios would like to adopt Madison's sister ne
xt year.  _Newark Star-Ledger_, May 18.

The Universal Fellowship of Metropolitan Community Churches reported April 2
4 that a Texas district judge, Keith Nelson of the 78th Judicial District, r
uled that a lesbian mother may not take her child to services of the MCC chu
rch.  Wrote Judge Nelson, according to the UFMCC release: "The primary issue
 is where the child would attend Sunday school and church... the intent was 
for mainline churches to be utilized in the religious training of the daught
er.  This would include the Catholic Church, and church in the Protestant fa
ith such as Presbyterian, Methodist, Baptist, Christian, Episcopalian, which
 are considered to be the standard religious institutions in the Protestant 
field.  The Metropolitan Community Church does not fall within this category
."  An appeal of this restriction was filed on April 23.

Chastity Pasley, the girlfriend of Russell Henderson, self-confessed murdere
r of Matthew Shepard, has been sentenced to 15-24 months in prison as an acc
essory to the crime for lying to police and destroying evidence.  The maximu
m sentence for her guilty plea could have been 3 years in prison and a $3,00
0 fine.  Pasley colluded with the murderers to help fabricate an alibi.  _Ch
icago Tribune_, May 23.

A former employee of Morgan Stanley Dean Witter, the largest securities firm
 in the U.S., is suing the firm for discrimination based on race and perceiv
ed sexual orientation, after having been discharged when his nude photograph
s appeared in the April 1998 issue of _Playguy_ magazine.  Christian Curry's
 case took a strange turn recently, when the Manhattan District Attorney's O
ffice dropped charges against him that had been instituted when he was arres
ted for allegedly attempting to plant racist and homophobic e-mail messages 
in Morgan Stanley's computer network to provide evidence in support of his d
iscrimination case.  The charges were dropped when the prosecutors concluded
 that Morgan Stanley may have paid an acquaintance of Curry $10,000 to frame
 Curry on these charges.  Curry, who denies he is gay and produced a fiance 
for press interviews, stated that the nude photos were taken years ago when 
he was modeling for the money, and that he had never specifically authorized
 their publication in a gay magazine.  Morgan Stanley suspended two executiv
es on May 27 as a result of the new information coming out of the prosecutor
s' office.  Curry filed his discrimination lawsuit, raising claims under Tit
le VII and the New York City human rights ordinance, earlier in May.  _New Y
ork Times_, May 19 & May 27.

The ACLU Lesbian & Gay Rights Project reported May 5 that a Mississippi chan
cery court struck down a restriction on the visitation rights of a lesbian m
other which would have required the mother's partner to be absent during vis
itation, in reliance on the Mississippi Supreme Court's recent decision in _
Weigand v. Houghton_.  The _Weigand_ case had been widely criticized as a de
feat for a gay father seeking custody of his son, but the court had upheld v
isitation and stricken a requirement that the father's partner not be presen
t during visitation.  The ACLU report did not further identify the case.20

Fulton County, Georgia, Superior Court Judge Stephanie Manis has awarded joi
nt custody of a 1-1/2 year old boy to his father and his lesbian mother.  Br
ent Hayes and Dana Jay dated briefly, although Jay has said that she realize
d she was a lesbian ten years ago.  In suing for custody, Hayes claimed that
 Jay only dated him in order to get pregnant, deceiving him about using birt
h control, so that she and her lover could have a child.  Hayes also claimed
 that he and his wife could provide a better home for the child.  However, J
ay's attorney said there was really no animosity between the two parents and
 both are concerned about their son.  As a result of the order, the child wi
ll continue to live with Jay and her partner, and Hayes will have liberal vi
sitation rights.  Judge Manis ordered that Hayes' visitation rights be expan
ded as the child gets older.  _Atlanta Constitution_, May 19.

A Chicago trial judge, Susan J. McDunn, was abruptly transferred to traffic 
court after complaints that she was ideologically opposed to adoptions by ga
y parents and had been soliciting the anti-gay Family Research Council to in
tervene in adoption cases pending before her, according to a report in the _
Chicago Sun Times_.

On May 3, two judges in Roanoke, Virginia, issued rulings that the Virginia 
sodomy law may constitutionally be applied to the cases of men arrested for 
soliciting gay sex in a city park.  Judges Richard Pattisall and Robert Dohe
rty, ruling in cases involving 18 men arrested in police sting operations, e
mphasized the public nature of the solicitations.  Pattisall wrote: "Common 
sense informs one that there can be no expectation of privacy to an act that
 is performed in public.  The defendants must seek their remedies according 
to the facts they bring to court, not to imaginable or conceivable facts."  
In his opinion, Doherty relied on _Bowers v. Hardwick_, writing: "The findin
gs of the U.S. Supreme Court are not wrong under our system of government.  
They cannot be changed unless the Supreme Court reverses itself, unless Cong
ress changes the law, or unless the Constitution is changed by the citizens.
"  Doherty did not explain how Congress could change Virginia's sodomy law. 
 Police claimed the sting activity was instituted in response to citizen com
plaints about sexual solicitation in the park.  Sam Garrison, a Roanoke atto
rney representing nine of the defendants, indicated that if they are convict
ed the cases will probably be appealed.  _Roanoke Times & World News_, May 4
.

The much-challenge Florida law banning gay people from adopting children, no
w the only such law in the nation since the recent repeal of New Hampshire's
 law, is once again being challenged by the ACLU, this time in federal court
.  The complaint in _Lofton v. Butterworth_, filed May 26 in the U.S. Distri
ct Court in Key West, claims that the statutory ban violates the rights of b
oth prospective adoptive parents and prospective adoptive children to equal 
protection, privacy, intimate association, and family integrity.  In a news 
release announcing the lawsuit, the ACLU noted that proposals to ban adoptio
ns by gay people have surfaced in six states around the country. A.S.L.

International Notes

The upper house of the New South Wales, Australia, legislature has approved 
the Property (Relationships) Legislation Amendment Bill, which will equate t
he status of same-sex and opposite-sex unmarried couples for most purposes u
nder New South Wales law.  The government, which introduced the bill, comman
ds a majority in the lower house, so passage early in June was predicted.  A
ccording to a report in the _Sydney Morning Herald_, May 27, this puts NSW i
n the forefront of Australian states in extending legal recognition to same-
sex partners.  "Limited inheritance rights exist in Victoria and the ACT and
 legislation is before the Queensland Parliament to recognise same-sex relat
ionships under industrial relations laws," the newspaper reported.

One of the most despised anti-gay actions of the Thatcher Administration may
 be ended by Great Britain's current Labour Government.  At a dinner of the 
gay rights organization Stonewall on May 20, Cabinet Office Minister Jack Cu
nningham announced that the Labour Government would take steps to repeal the
 infamous Section 28 of the Local Government Act, which prohibited local aut
horities from using any public money for "intentionally promoting homosexual
ity" or teaching "the acceptance of homosexuality as a pretended family rela
tionship" in publicly-funded schools.  Also present at the Stonewall dinner 
was openly-gay Culture Minister Chris Smith.  _The Toronto Star_, May 22.

The French Senate voted on May 11 to reject for the second time the civil So
lidarity Pact bill, which would have provided a legal status for unmarried s
ame-sex and opposite-sex domestic partners that would have included tax and 
inheritance advantages.  According to an Associated Press report of May 12, 
the Senate, which is dominated by right-wing parties, voted down the measure
 without any debate, its opponents having warned that passage could lead to 
adoptions of children by gay couples.  The measure was proposed by the gover
nment and had been passed by the lower house.

The _Times of London_ reported May 13 that following upon a European Court o
f Justice ruling there has been a ministerial law reform in England to prote
ct transsexuals against discrimination at work.



The _Canberra Times_ reported May 24 that a male-to-female transsexual in Vi
ctoria, Australia, identified in the press report as VZG, is seeking a judic
ial declaration of gender identity, arising out of a dispute with the Social
 Security Appeals Tribunal about whether VZG is to be identified as male or 
female.  The Tribunal had asserted that VZG was raising a fuss in support of
 a campaign to have the government allow amendments to birth certificates to
 reflect the post-gender-reassignment sex of individuals, which is not prese
ntly allowed.

The lower house of the Canadian Parliament voted 137-118 on May 25 in suppor
t of a bill that would extend survivor benefits to the partners of gay and l
esbian Canadian federal civil servants.  the vote came just days after the C
anadian Supreme Court ruled that excluding same-sex partners from the covera
ge of spousal support obligation laws violated the Canadian Charter of Right
s.  _Toronto Globe and Mail_, May 26.  A.S.L.

Professional Notes

New York City Mayor Rudolph Giuliani appointed Joseph J. Dawson, a gay attor
ney who previously worked as a prosecutor in the New York County District At
torney's Office, to the New York City Criminal Court.  Dawson was sworn in o
n May 26 and will be assigned to the Criminal Court in the Bronx.  _N.Y. Law
 Journal_, May 27.

For the first time, the Office of the Attorney General of Massachusetts is h
olding a special recruitment reception for minority attorneys, and the offic
e mailed invitations to the June 7 event to all members of the Massachusetts
 Lesbian and Gay Bar Association.  The event is being held in the Ceremonial
 Room at the Attorney General's Office in Boston. A.S.L.

AIDS & RELATED LEGAL NOTES

Supreme Court Rejects Judicial Estoppel Theory in ADA/SSDI Cases

Resolving a split in the circuits and addressing an issue of great potential
 significance to some people living with HIV/AIDS, the U.S. Supreme Court ru
led May 24 that having applied for a received Social Security Disability Ben
efits does not necessarily preclude someone from bringing a discrimination a
ction under the Americans With Disabilities Act.  _Cleveland v. Policy Manag
ement Systems Corp._, 1999 WL 320795.  The unanimous decision, articulated i
n a brief opinion by Justice Stephen Breyer, reversed a ruling by the U.S. C
ourt of Appeals for the 5th Circuit, which had imposed a presumption that an
 SSDI recipient could not bring an ADA claim.  The first ruling on this issu
e by a federal appeals court, _McNemar v. Disney Store, Inc._, 91 F.3d 610 (
3rd Cir. 1996), cert. denied, 519 U.S. 1115 (1997), had employed a judicial 
estoppel theory premised on prior receipt of SSDI benefits to reject an ADA 
claim by an HIV+ man seeking to challenge his termination from employment.
20

In his opinion for the Court, Justice Breyer noted that the definition of di
sability under the two statutory schemes differed sufficiently to reject the
 idea that a person qualified for benefits under SSDI would necessarily be d
isqualified for protection under the ADA.  The apparent conflict comes becau
se SSDI eligibility requires the individual to be unable to pursue gainful e
mployment, while ADA eligibility requires a person to be able to perform the
 essential elements of a job, with or without reasonable accommodation, desp
ite their disabling condition. 20

"In our view," wrote Breyer, "despite the appearance of conflict that arises
 from the language of the two statutes, the two claims do not inherently con
flict to the point where courts should apply a special negative presumption 
like the one applied by the Court of Appeals here.  That is because there ar
e too many situations in which an SSDI claim and an ADA claim can comfortabl
y exist side by side." 20

In the case before the Court, a woman who had suffered a stroke, disabling h
er from working, filed for SSDI benefits, then recovered sufficiently to res
ume working, then was discharged by her employer, then reiterated her SSDI c
laim, then filed an ADA claim concerning her discharge, and then was found e
ligible for SSDI benefits retroactive to the date of her stroke, ended up ge
tting her ADA claim tossed out by the federal district court and the 5th Cir
cuit on estoppel grounds.  Justice Breyer points out that the plaintiff offe
red an explanation of the discrepancies between her application for SSDI ben
efits and the allegations of her ADA complaint, and that on remand the trial
 court should examine these explanations without engaging in any presumption
 against allowing the ADA claim to proceed. 20

The decision does not eliminate any adverse effect on an ADA claim of a clai
mant's having applied for disability benefits.  Instead, the Court ruled, th
e claimant will have a burden to explain any discrepancy between the factual
 allegations made to obtain disability benefits and the factual allegations 
that must be made to state a prima facie case under the ADA.  In light of th
e rather generalized statements that must be submitted on standard SSDI appl
ications, it is possible, and even likely in many cases, that somebody who c
ould work with reasonable accommodation (the standard for eligibility for pr
otection under the ADA) might also qualify for disability benefits for the t
ime when they are not working.  A.S.L.

Supreme Court Holds Military Court Lacks Jurisdiction To Block President Fro
m Discharging HIV+ Officer

In _Clinton v. Goldsmith_, 1999 WL 303741 (1999), the U.S. Supreme Court hel
d that the Court of Appeals for the Armed Forces (CAAF) did not have jurisdi
ction to block the President from firing an HIV+ Air Force major, James T. G
oldsmith, who had been imprisoned for defying an order from a superior offic
er to inform his sex partners that he was HIV+ and to practice safer sex.

On March 4, 1994, Goldsmith was convicted by a general court-martial of will
ful disobedience of an order, two counts of assault with a means likely to p
roduce death or grievous bodily harm, and one count of assault on a superior
 commissioned officer, and sentenced to six years' confinement and a partial
 pay forfeiture.  This sentence was affirmed by the Air Force Court of Crimi
nal Appeals, and Goldsmith did not petition the CAAF for review.

Subsequently, in reliance on a statute enacted February 10, 1996, empowering
 the President to discharge any military officer who had been sentenced by a
 court-martial to and served more than six months' confinement, the Air Forc
e notified Goldsmith that it was taking action to discharge him. Goldsmith d
id not immediately contest this. Rather, he petitioned the Court of Criminal
 Appeals for extraordinary relief under the All Writs Act, 28 U.S.C. sec. 16
51(a), to redress the unrelated alleged interruption of his HIV medication d
uring his incarceration. The Court of Criminal Appeals ruled that it did not
 have jurisdiction to issue such extraordinary relief.  It was in Goldsmith'
s appeal of this ruling to the CAAF that he first asserted the claim that th
e Air Force's action to drop him from the rolls violated the Ex Post Facto a
nd Double Jeopardy Clauses.  Relying on the All Writs Act, the CAAF granted 
his petition and enjoined the President and other officials from discharging
 Goldsmith.

The Supreme Court unanimously reversed the holding of the CAAF on the ground
 that the relief granted by the CAAF was not within its circumscribed statut
ory jurisdiction.  In an opinion by Justice David Souter, the Court held tha
t, in establishing the CAAF, Congress confined the court's jurisdiction to t
he review of sentences imposed by courts-martial: "the CAAF has the power to
 act `with respect to the findings and sentence as approved by the [court-ma
rtial's] convening authority and as affirmed or set aside as incorrect in la
w by the Court of Criminal Appeals.' 10 U.S.C. sec. 867(c)."  And while the 
All Writs Act authorizes use of extraordinary writs, it confines the authori
ty to issue such writs to those that are in aid of the issuing court's juris
diction. "Since the Air Force's action to drop [Goldsmith] from the rolls wa
s an executive action, not a `findin[g]' or `sentence,' sec. 867(c), that wa
s (or could have been) imposed in a court-martial proceeding, the eliminatio
n of Goldsmith from the rolls appears straightforwardly to have been beyond 
the CAAF's jurisdiction to review and hence beyond the `aid' of the All Writ
s Act in reviewing it."

Goldsmith argued that the relief issued by the CAAF was in aid of its jurisd
iction because the relief "protected and effectuated the sentence meted out 
by the court-martial * * * by precluding additional punishment, which would 
incidentally violate the Ex Post Facto and Double Jeopardy Clauses."  But th
is claim, the Court said "was beside the point" because (1) "Goldsmith's cou
rt-martial sentence ha[d] not been changed; * * * and [(2)] the CAAF [was] n
ot given authority, by the All Writs Act or otherwise, to oversee all matter
s arguably related to military justice, or to act as a plenary administrator
 even of criminal judgments it ha[d] affirmed."

Furthermore, the Court held, even if the CAAF had had jurisdiction, "resort 
to the All Writs Act would still [have been] out of bounds * * * in light of
 alternative remedies available to a servicemember demanding to be kept on t
he rolls."

The Court did note, however, that having brought his claim to the Secretary 
of the Air Force regarding the notification that he may be dropped, "[i]f th
e Secretary takes final action to drop him from the rolls (as he has not yet
 done), Goldsmith will (as the Government concedes) be entitled to present h
is claim to the Air Force Board of Correction for Military Records (BCMR)." 
 And, Goldsmith "may also have recourse to the federal trial courts" if he c
hooses to challenge the ruling of the BCMR.

In a footnote, the Court dismissed Goldsmith's argument that seeking BCMR re
view would be futile "since BCMR's lack authority to declare statutes uncons
titutional * * * and are generally `unresponsive, bureaucratic extensions of
 the uniformed services,'" stating simply: "In light of the fact that respon
dent chose to circumvent BCMR review, we need not address whether the Air Fo
rce BCMR has the power to correct a record that is erroneous as a result of 
a constitutional violation."

"In sum," wrote Justice Souter, "executive action to drop respondent from th
e rolls falls outside of the CAAF's express statutory jurisdiction, and alte
rnative statutory avenues of relief are available. The CAAF's injunction aga
inst dropping respondent from the rolls of the Air Force was neither `in aid
 of [its] jurisdictio[n]' nor `necessary or appropriate.' Accordingly, we re
verse the court's judgment."  _Courtney Joslin_

Federal Court Allows Action to Proceed Against Sheriff For Depriving Inmate 
of AIDS Medications

Senior District Judge Arthur Spiegel of the U.S. District Court for the Sout
hern District of Ohio denied a county Sheriff's motion for summary judgment,
 thus enabling a former inmate with AIDS to bring a 42 U.S.C. sec. 1983 suit
 for alleged deliberate denial of medication during a 9-day incarceration.  
_Murphy vs. Bray_, 1999 WL 305005 (March 12).

Plaintiff Devin Karl Murphy was arrested and jailed in the Hamilton County J
ustice Center for solicitation.  At the time of his arrest, Murphy was takin
g a host of medications for thrush, meningitis, herpes and depression as wel
l as an AIDS-inhibitor cocktail.  Upon arrival at the jail, Murphy informed 
the officers and Corrections Medical Systems, Inc. (CMS), the state-contract
ed medical services company for the facility, that he was HIV+ and was takin
g several prescription drugs.  CMS later confirmed that Murphy had full-blow
n AIDS.  Murphy was questioned by co-defendant Dr. Jean-Claude Loiseau, who 
contacted Murphy's treating physician and home health-care nurse, who inform
ed Loiseau of Murphy's medication regimen.  Dr. Loiseau wrote an order stati
ng "OK to have all his medications brought from home and to start them as di
rected."  After meeting with Loiseau and pursuant to Loiseau's written order
, Murphy called his companion to bring his medications to the jail.  His com
panion did so, only to be stopped by guards citing a written policy that no 
inmate may have medications brought from home.  Murphy alleges that he compl
eted and submitted a form appraising CMS of the problem which, he claims, wa
s returned to him without explanation.  Co-defendant and Hamilton County She
riff Simon Leis assert that Murphy completed no form and made no complaint w
hatsoever.  Murphy received no medication during his entire 9-day incarcerat
ion.

Notwithstanding the written policies of co-defendants CMS and Sheriff Leis, 
Murphy argued that defendant Dr. Loiseau allowed Murphy to obtain the medica
tions from home because a custom had developed that directly contradicted th
is policy and that the rules and implementation of the custom were not unifo
rmly defined.  Murphy sued Leis in his official capacity, contending that he
 failed to provide a constitutionally adequate system of medical care at the
 HCJC (an 8th Amendment violation), that such failures are not investigated,
 and that the county, via its policy maker Sheriff Leis, acquiesced in and/o
r ratified the custom of failing to provide a constitutionally adequate syst
em of medical care to inmates.  Sheriff Leis moved for summary judgment rega
rding the allegations against him in the principal action, claiming that Mur
phy fails to raise any genuine issue of material fact to indicate that Leis 
acted with deliberate indifference to Murphy's illness and did so while acti
ng under the color of state law, the threshold necessary to sustain a sec. 1
983 claim.  In his defense, Leis claims that, at most, the facts relating to
 CMS's failure to acknowledge a communique from Murphy's home health care nu
rse states a claim for negligence and, as such, does not constitute a sec. 1
983 violation.

After reviewing the facts in a light most favorable to Murphy, as required i
n deciding such a motion, Judge Spiegel found that Murphy raised a genuine i
ssue of material fact as to whether Leis knew of and disregarded an excessiv
e risk of harm presented to Murphy by the custom at the facility.  Murphy pr
offered rather damaging deposition evidence of co-defendants Dr. Loiseau and
 Deborah Bray (a CMS nurse), who state that a custom had developed allowing 
inmates to bring medications from home and that there were previous incident
s where family members brought medications to the facility and were refused.
  Nurse Bray further expressed a need to "fine-tune the policy as to where t
he medications went [and] who got [them.]"  Moreover, Murphy's medical exper
t witness testified that the custom was not uniformly understood or applied 
and no reasonable effort was made to assure that the custom actually worked 
in all situations.  Constructing the nexus between CMS and Leis, Murphy alle
ged that Nurse Bray specifically discussed this need to fine-tune with Leis 
or his designee, and that Leis knowingly failed to instruct officers to cont
act corrections medical personnel when family members brought medications fo
r inmates.  Accordingly, Leis' motion for summary judgment was denied.

Plaintiff Murphy cross-claimed with a motion for summary judgment against De
fendant Sheriff Leis, but the court reserved judgment, finding that the cros
s-motion will not be ripe before trial.  Due to Murphy's failing health, an 
expedited trial schedule was ordered. _K. Jacob Ruppert_

Federal Court Rejects HIV Discrimination Suit, Finding Legitimate Reasons fo
r Employment Termination

On April 21, U.S. District Judge Moore in the Southern District of Florida d
ismissed the claims of Susan Chockla, who had accused Celebrity Cruise Lines
 of HIV-related employment discrimination and wrongful termination.  _Chockl
a v. Celebrity Cruise Lines_, 1999 WL 304609.  Citing a prior history of war
nings and reprimands, Judge Moore held that Chockla failed to make out a pri
ma facie case of discrimination under either the Americans with Disabilities
 Act or the Florida AIDS Discrimination Act.  09

Susan Chockla started working with Celebrity Cruise Lines in August 1992 as 
a Document Agent in its Documentation Department.  All Celebrity employees w
ere subject to a series of rules which regulated employee work and behavior.
  In particular, employees were permitted to take a total of five sick days,
 three personal days and were entitled to arrive late to work on three occas
ions per year.  Employees were also permitted only one incoming and one outg
oing personal call each day. 20

During her time at Celebrity, Chockla exceeded her permitted number of absen
ces, due to a variety of reasons including car trouble, taking her son to co
urt proceedings and picking up her son after he had been sent home from scho
ol.  In addition, she arrived late more times than permitted by her employer
's policy.  Specifically, she either arrived late or left early on approxima
tely eleven occasions between February and September, 1995.  On September 21
, 1995, Chockla received a written warning from her supervisor, Frieda Lagan
iere for poor attendance and was placed on thirty days probation.  Chockla w
as also reprimanded for taking excessive breaks.

In February 1996, one month after Chockla had taken a one week
absence from work, she told her immediate supervisor, Linda Raven, that she 
had tested positive for the HIV virus, but that her absence was unrelated to
 her HIV condition.  Raven then informed Laganiere about Chockla's condition
.  In March, 1996, Chockla received a written warning for her violation of C
elebrity's telephone usage policy.  In April, Raven reported to Laganiere th
at Chockla's productivity had declined and that she exhibited a general lack
 of interest in her work, citing instances of excessive taking of breaks and
 gazing out the window.  Raven suggested that Chockla be placed again on pro
bation.  In June, 1996, Raven's successor, Susan Celeste, issued repeated or
al and written warnings to Chockla for absentee policy violations.  Chockla 
received additional warnings in July for poor attendance and rudeness to emp
loyees and/ or customers.  Finally, in August, Chockla requested to take lea
ve from work.  Laganiere granted Chockla's request, and encouraged Chockla t
o take all the time she needed.  Chockla returned from leave on September 23
.  Soon after returning from leave, Chockla received multiple written warnin
gs for poor attendance and was placed on a sixty day probationary period.  F
inally, on October 29, 1996, Laganiere received the Company's telephone repo
rt, which suggested that Chockla had made an excessive amount of personal ca
lls in violation of Celebrity's policy.  Chockla was terminated the next day
.   Chockla sued Celebrity, claiming employment discrimination due to her HI
V status, in violation of the Americans with Disabilities Act and wrongful t
ermination in violation of the Florida AIDS Discrimination Act.09

Judge Moore dismissed both of Chockla's claims, noting that she had not made
 out a prima facie case of discrimination.  In order to make out a prima fac
ie case under the ADA, a plaintiff must demonstrate that (1) she has a disab
ility, (2) she is a qualified individual and (3) she was discriminated again
st because of her disability.  Judge Moore found that Chockla failed under p
rong three, noting that for the duration of her employment, Chockla had been
 receiving warnings and reprimands for failing to abide by company policies.
  In particular, "much of [Chockla's] misconduct and discipline occurred pri
or to when [Celebrity] learned of [her] disability."  Consequently, the cour
t found that the company had legitimate and non-discriminatory grounds for f
iring her, based on her misconduct.  In dismissing the ADA claim, Judge Moor
e wrote, "[u]nsupported allegations are not sufficient to survive a motion f
or summary judgment."
20
After dismissing Chockla's federal claim, Judge Moore quickly disposed of Ch
ockla's state claim.  He found "substantial evidence to justify the terminat
ion of [her] employment for reasons entirely unrelated to her disability."  
In particular, "[t]he record indicates that she was repeatedly reprimanded b
oth prior to and after [Celebrity's] awareness of [her] disability, and [she
] has failed to rebut [Celebrity's] assertions regarding regarding her unsat
isfactory performance."  _Sharon McGowan_

Illinois Appeals Court Finds Dentists Free to Discriminate Against HIV+ Pati
ents

The Appellate Court of Illinois reversed a human rights agency's finding tha
t a dentist's office is a place of public accommodation under the Illinois h
uman rights law. _Baksh v. Human Rights Comm._, 1999 WL 285495 (Ill. App. 1 
Dist. May 7).20

G.S. had been a patient of Dr. Baksh's for 10 years. In 1988, G.S. called Ba
ksh prior to an appointment, disclosed his HIV status, and canceled an appoi
ntment due to a mouth lesion related to his HIV. Later, Baksh asked G.S. if 
his domestic partner was "safe to treat" and refused to continue to treat G.
S., referring him to another clinic.20

G.S. filed a discrimination claim with the state human rights agency, allegi
ng that he had been illegally denied the use of a place of public accommodat
ion, the dentist's office. An Administrative Law Judge found that the dentis
t's office was a place of public accommodation, that G.S. had been discrimin
ated against by the dentist, and awarded damages.  The Illinois Appellate Co
urt affirmed the ALJ's findings that the plaintiff had filed his charge with
in the statute of limitations, and that the plaintiff's charge survived his 
death, but, turning to the discrimination claim, found that the dentist's of
fice was not a place of public accommodation.20

The court based its conclusion on case law that found a public university wa
s not a place of public accommodation, and on cases that held that the sale 
of medical and legal services are not covered under the state consumer prote
ction statute.  Justice O'Mara Frossard, in a strong dissenting opinion, pun
ched holes in the majority opinion. The plain language of the statute states
 that "place of public accommodation" means a business of the kind whose ser
vices are made available to the public, a definition which clearly applied t
o Dr. Baksh's office. The dentist's office was dissimilar from the universit
y, which was not a place of public accommodation because it required student
s to meet admission guidelines and excluded those who failed to meet the cri
teria.20

The dissent also disagreed with the majority's reliance on cases interpretin
g the consumer protection statute, stating that the
legislature clearly intended the human rights statute to have broader covera
ge, and that the exclusion of legal and medical offices from the consumer pr
otection statute's mandate was attributable to the fact that there were pree
xisting remedies for those harmed in the medical and legal context.  (Of cou
rse, dentists' offices are covered under as public accommodations under the 
federal Americans With Disabilities Act.)  _Dirk Williams_

Texas Appeals Court Orders Trial in 1983 AIDS-Tainted Transfusion

The Texas Court of Appeals reversed a no-evidence summary judgment entered a
gainst a woman who sued a blood bank claiming that she contracted AIDS due t
o the blood bank's negligence in blood screening and testing at the time of 
her 1983 blood transfusion. _Aguirre v. South Texas Blood & Tissue Center_, 
1999 WL 249173 (April 28).  Given the date of transfusion, this is among the
 earliest cases where a court has refused to rule against a plaintiff for a 
claim of negligence regarding HIV transfusion liability.

Plaintiff Sandra Aguirre received a blood transfusion in July of 1983 after 
childbirth in a local hospital.  The blood was supplied by South Texas Blood
 & Tissue Center (South Texas), donated by up to twelve individuals.  Aguirr
e began having health problems in 1993 and was diagnosed with AIDS in 1994. 
 She then brought suit against South Texas, claiming that it was negligent b
ecause it failed to exercise the degree of care that is ordinarily exercised
 by and expected of blood banks in its drawing, preparation, handling, scree
ning and testing of blood products, and that such negligence proximately cau
sed Aguirre to become HIV+.  South Texas successfully moved for summary judg
ment under Texas' no-evidence summary judgment rule, requiring that there be
 no evidence of one or more essential elements of a claim or defense on whic
h an adverse party would have the burden of proof at trial.  Aguirre appeale
d.

Aguirre argued that the lower court erred because she did raise a genuine is
sue of material fact regarding the standard of care, South Texas's breach of
 the care, and proximate causation.  Alternatively, she complained that Sout
h Texas destroyed their records and evidence which would have defeated their
 summary judgment.  South Texas argued that Aguirre still has no evidence to
 support her claim and, alternatively, states that it was not liable for the
 destruction of the records. 20

In an opinion for the court, Chief Judge Hardberger explained that a no-evid
ence summary judgment is the functional equivalent of a pretrial directed ve
rdict, and that the evidence must be reviewed in the light most favorable to
 the one against whom the no-evidence summary judgment was rendered.  Employ
ing that same standard of review in this decision, Hardberger searched for "
more than a scintilla of probative evidence to raise a genuine issue of mate
rial fact. . . [that] rises to a level that would enable reasonable and fair
-minded people to differ in their conclusions." 20

Aguirre submitted supporting affidavits from herself, her doctor and her exp
ert witness as well as 1983 memos from the American Association of Blood Ban
ks regarding standard operating procedures and AIDS.  Aguirre contends that 
these memos constitute the standard of care for South Texas in 1983 and that
 South Texas failed to meet that standard.  South Texas responded that there
 was still confusion about AIDS in 1983 and that a standard of care was emer
ging at the time and that there is no evidence that it breached that standar
d and there is some evidence that it was in compliance therewith.  South Tex
as further contends that even if the records existed and Aguirre was able to
 positively show that one of the donors were HIV+, while such evidence might
 show that the tainted blood caused her to contract HIV, it would still be n
o evidence that South Texas' breach of the applicable standard of care proxi
mately caused her to become infected.  Aguirre responded that this is a tria
l burden and that she will meet it.

Hardberger ruled that Aguirre brought forth more than a scintilla of probati
ve evidence and that issues regarding the appropriate standard of care in th
e blood banking industry in 1983 and whether South Texas breached it were be
tter left to a jury.  Therefore, the summary judgment was reversed and the c
ase remanded for trial on the merits.  Finding an issue of material fact, th
e court did not address the issue of destruction of evidence.  _K. Jacob Rup
pert_

Connecticut Appeals Court Finds Consumer Protection Agency Can Require Pharm
acy to Disclose Billing Records

In a case involving the right of the Commissioner of Consumer Protection of 
Connecticut to demand that a pharmacy produce billing records containing con
fidential HIV and AIDS treatment-related information, the Appellate Court of
 Connecticut agreed with the trial court to require the pharmacy to give the
se records to the Commissioner.  _Shiffrin v. I.V. Services of America, Inc.
_, 1999 WL 259959 (Conn. App., May 4).  I.V. Services of America, Inc. filed
 a motion for a protective order in response to the Commissioner's investiga
tive demand on several statutory and constitutional grounds.

The Commission served an investigative demand on I.V. Services pursuant to t
he Connecticut Unfair Trade Practices Act, General Statutes 42-110a et.seq. 
(CUTPA). The Commission was investigating whether I.V. Services violated CUT
PA by (1) billing patients for medical equipment and services after it had r
epresented to them that their insurance companies, not they, would be billed
, and (2) unfairly and deceptively inflating prices on prescription drugs. T
he demand required, among other things, that I.V. Services produce certain c
ustomer lists and billing records.20

In its defense, I.V. Services argued that the information sought was protect
ed under the pharmacist-customer privilege provided by General Statutes Sec.
 20-626. Appellate Court Judge Schaller ruled that since Sec. 20-626 is limi
ted to records pertaining to "the nature of pharmaceutical services rendered
," the privilege did not protect records pertaining to I.V. Services' billin
g and trade practices. In addition, since the Commissioner demanded only inf
ormation relating to these trade practices and the trial court allowed I.V. 
Services to redact any information identifying the patient's condition, the 
judge ruled that the information sought was not protected.20

The judge quickly disposed of I.V. Services' other arguments, based on certa
in exceptions to Sec. 20-626, i.e., the circumstances under which a pharmacy
 may disclose otherwise privileged information.  Firstly, Sec. 20-626(b) sta
tes that a pharmacy may disclose privileged information if it is sought purs
uant to a subpoena.  I.V. Services argued that the use of the word "may" ind
icated that such disclosure was permitted but not mandatory, and, in any cas
e, the investigative demand was not a subpoena for purposes of Sec. 20-626. 
 The judge noted that it was unlikely that the legislature would have given 
a party the option of not answering a subpoena, given the judicial sanctions
 that might be imposed as a result.  With regard to whether the investigativ
e demand was the legal equivalent of a subpoena for purposes of Sec. 20-626,
 the judge ruled that Sec. 42-110k, which specifies the Commissioner's enfor
cement powers, explicitly gives the Commissioner the right to choose to use 
either an investigative demand or a subpoena.  Since the legislature intende
d CUTPA to be a remedial measure, it is to be construed liberally. Therefore
, the judge determined, the Commissioner's choice to use a demand rather tha
n a subpoena should not be held against him.

A secondly exception to Sec. 20-626 permits a pharmacy to disclose otherwise
 privileged information if it sought by "a governmental agency with authorit
y to review or obtain such information."  I.V. Services claimed that the Com
mission of Pharmacy, not the Commission of Consumer Protection, is responsib
le for the regulation of pharmacies. The court cited Gen. Stat. Ch. 400j, wh
ich explicitly gives the Commission of Consumer Protection general superviso
ry power over the Commission of Pharmacy to support its finding that the Com
missioner has the statutory authority to review I.V. Services' billing recor
ds.

Next, I.V. Services argued that disclosing the requested information would v
iolate the privacy rights of people with HIV and AIDS, based on Gen. Stat. 1
9a-583(a), which provides, in relevant part: "No person who obtains confiden
tial HIV-related information may disclose or be compelled to disclose such i
nformation..."). The court, in disposing of this defense, noted that the tri
al court permitted the defendant to redact all specific references to the pa
tient's physical or mental condition before complying with the demand. The j
udge stated that redaction would adequately protect the privacy rights of pe
ople with HIV and AIDS.

Lastly, I.V. Services argued that the Commissioner lacked probable cause to 
issue the demand; therefore requiring the pharmacy to comply with it would v
iolate its federal and state due process rights. The court refused to consid
er this defense because, although it was briefed by the parties, the trial c
ourt did not discuss the matter in its memorandum of decision. 20

The court affirmed the trial court's order denying I.V. Services' motion for
 protection against the Commissioner's investigative demand.  _Elaine Chapni
k_

AIDS Diagnosis Reopens Social Security Disability Case

On May 5, the U.S. District Court for the Southern District of New York rema
nded to the Commissioner of Social Security a disability benefits case based
 on new evidence of the claimant's HIV+ status.  _De Thomas v. Commissioner 
of Social Security_, 1999 WL 285513 (S.D.N.Y.).

Plaintiff Anna De Thomas was twice denied disability benefits on her 1994 cl
aim based on her unemployment due to "unspecified allergies."   At hearings 
before Administrative Law Judges in 1995 and 1997, De Thomas showed that she
 had fainted in 1992 and was taken to a hospital emergency room where she wa
s found to have unspecified allergies that resulted in rashes. De Thomas tes
tified that she was injected with and continues to take Benadryl to prevent 
flare- ups, and that the Benadryl has left her "tired," has "given [her] a f
eeling that [she does not] care," and has made her feel "worthless."  De Tho
mas also complained of joint pain, high blood pressure, liver disease, and a
 kidney problem and was diagnosed variously as suffering from hypertension, 
hay fever, allergic rhinitis and dermatitis. However she testified that she 
was able to walk for exercise, sit, conduct household chores, and travel alo
ne by public transportation. The determination at the hearings was that De T
homas could continue her work in hospital administration.

De Thomas, representing herself, persuaded District Court Judge Cote to reop
en the matter.  She presented a doctor's letter stating that she had been re
peatedly misdiagnosed, and, in 1998 was finally diagnosed with advanced immu
nosuppression resulting from AIDS.  The district court liberally construed t
he letter as a motion to remand the case to the commissioner for redetermina
tion. Finding "that there is new evidence which is material and that there i
s good cause for the failure to incorporate such evidence into the record in
 a prior proceeding," Judge Cote remanded the case to the commissioner.  _Ma
rk Major_

AIDS Litigation Notes

The Colorado Supreme Court announced May 10 that it had denied a petition fo
r certiorari in _Smith v. Belle Bonfils Memorial Blood Center_, 1998 WL 6843
32 (Colo. App., Sept. 3, rehearing denied, Oct. 29), a case presenting a nov
el negligence theory for blood bank liability for transfusion of HIV stemmin
g from a 1993 medical procedure.  At trial, Christine Smith sought to offer 
expert testimony that the national blood banking industry is negligent in no
t adopting a screening method that would require all donated blood to be sto
red for six months and then retested before being used for transfusions.  Th
e court of appeals had ruled that the trial court correctly excluded such ex
pert testimony as not meeting the test for scientific acceptance.

A Harris County, Texas, district court jury recommended a life prison term f
or Paul Edward Broussard, an HIV+ man convicted of repeatedly sexually assau
lting a seven-year old boy and infecting him with HIV.  The assaults took pl
ace more than seven years ago, but the matter didn't come to light until las
t summer when the boy, then 14 years old and repeatedly sick, had a blood te
st and was found to be HIV+.  The defendant, whose defense throughout the tr
ial was that he was uninfected and had never assaulted the boy, subsequently
 tested HIV+.  The defendant claims he didn't know he was HIV+ in 1993, when
 these events were said to have taken place. Judge Mike Anderson imposed the
 life sentence, under which Broussard cannot be considered for parole until 
having served at least 30 years.  _Houston Chronicle_, May 26. 20

York County, South Carolina, Circuit Court Judge Buford Greer ordered an HIV
+ man to pay $5 million in damages to a woman who claims he intentionally in
fected her with HIV.  The parties were identified in court papers as Jane Do
e and John Doe.  According to the plaintiff's attorney, Randall Hood, the de
fendant and the plaintiff were dating for five years, and the defendant neve
r revealed he was HIV+.  When he developed a grudge against the plaintiff, w
ho accused him of having sex with other women, he decided to infect her, or 
so the plaintiff claimed.  Attorney Hood said that the defendant is a middle
-aged man with sufficient property and wealth that the plaintiff expects to 
collect "a substantial amount" of the $5 million damage award.  This was rep
orted to be the first case of its kind in South Carolina.  The damages were 
allocated as $1 million for compensatory damages and $4 million for punitive
 damages.  The defendant never appeared in court at the May 12 hearing of th
e case.  _Rock Hill Herald_, May 13.

John David Martin, an HIV+ man living in Marion, Indiana, has been sentenced
 to one year residence in a work release facility and one year of probation 
after pleading guilty to two criminal recklessness felony charges for having
 failed to disclose his HIV-status during relationships he had with two diff
erent women.  Martin admitted engaging in unprotected sex with both women, n
either of whom have developed HIV infection.  Martin told Marion Superior Co
urt Judge Charles A. Wiles in court on May 11 that he was sorry for his acti
ons and had been "selfish" by exposing these women during a period when he w
as going through denial about being HIV+ and infectious.  The sentence impos
ed by Wiles also requires Martin to perform 100 hours of community service a
nd pay a $3,355 fine; the sentence will not commence until Martin completes 
serving a 6 month prison term in Hamilton County, where he was previously co
nvicted for having unprotected sex with one of the women in that county. _In
dianapolis Star_, May 12.

A 2-year old child of HIV+ parents who has been living in a foster home sinc
e shortly after his birth will be released to the custody of his father, Den
nis Haynes, a former drug abuser, according to the Oregon State Attorney Gen
eral's Office.  Both Haynes and his ex-wife, also HIV+, had sought custody, 
and the foster parents had hoped to adopt the child, who had been removed to
 a foster home after Paulette Haynes' doctor raised doubts about her ability
 to take care of the boy properly.  _Portland Oregonian_, May 25.
 20
A prominent Latino dentist in Jamaica Plains, Massachusetts, has agreed to p
rovide free dental care to people living with HIV as part of a settlement of
 a discrimination case arising from alleged refusal to treat people with HIV
/AIDS.  Dr. Guillermo Recinos will also pay $20,000 to settle the discrimina
tion claim, brought by Mass. Attorney General Thomas Reilly, and will pay an
 additional $40,000 to settle complaints of Medicaid fraud.  _Boston Globe_,
 April 23. A.S.L.

AIDS Law & Society Notes

_China Daily_ reported May 21 that the People's Republic of China's Ministry
 of Health has promulgated a comprehensive regulation dealing with HIV/AIDS 
issues.  Under the regulation, no organization or individual may reveal the 
names and addresses of HIV or AIDS patients, and medical personnel are requi
red to keep such information strictly confidential.  Health care providers w
ho are assigned to provide services to HIV patients may not refuse to provid
e treatment, because Chinese law entitles all citizens to medical and health
 care.  The regulation also forbids discrimination in employment, study or s
ocial activities on the basis of HIV status, and allows HIV+ individuals to 
marry, provided both parties to the marriage receive appropriate counseling 
from medical consultants.  The regulation strictly forbids blood or tissue d
onations by HIV+ individuals.

A group calling itself "Community United for Gay Sexual Privacy" has propose
d a ballot initiative in San Francisco to block city Health Department rules
 that ban private rooms in gay sex clubs and that require club staffers to m
onitor all patrons to ensure that nobody is engaging in unsafe sexual activi
ties.  (This sounds like one of those "only in San Francisco" stories...) A 
member of the group, AIDS activist Michael Petrelis, claims that under curre
nt regulations, all sexual activity in sex clubs has to take place out in th
e opening, thus deterring patronage by those who seek to keep their sexual a
ctivity private, and diverting those people into less safe venues.  _N.Y. Ti
mes_, May 29; _San Francisco Chronicle_, May 4.  Pardon us for wondering whe
ther asking the general public to vote on whether gay men should be allowed 
to have unsafe sex in bathhouses is a good idea...

An Australian judge has sentenced a bank executive with AIDS to at least 18 
months in prison for having defrauded his employer of over $450,000.  Accord
ing to a report in the _Canberra Times_ on May 22, Joseph Herschel told the 
court that his priorities in life changed when he was diagnosed HIV+; not kn
owing how long he would remain healthy, he began stealing money from the ban
k and spending it on new clothes, dining out, sporting and camping equipment
, investment shares, and a trip overseas.  Justice Jeffrey Miles set a maxim
um term of 4-1/2 years, noting expert testimony that given Herschel's respon
se to his medication, he should be able to endure a prison sentence of that 
length of time.  Said Judge Miles: "I do not think this is a case in which t
here is a substantial possibility or probability that the offender would not
 survive an appropriate prison term. . .  The offender's career is in ruins.
 . . he will probably find it difficult ever to get work in the financial wo
rld.  There is in my view no alternative to a prison sentence and an immedia
te one."  A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES:

Bell, Mark, _Shifting Conceptions of Sexual Discrimination at the Court of J
ustice: from _P v S_ to _Grant v SWT_, 5 European L. J. 63 (March 1999).

Cain, Patricia A., _A Review Essay: Tax and Financial Planning for Same-Sex 
Couples: Recommended Reading_, 8 L. & Sexuality 613 (1998).

Clark, B., _Competing Custody Rights: New Concepts of `Family' and the Best 
Interests of the Child_, 31 Comp. & Int'l L. J. of Southern Africa 288 (Nov.
 1998).

Cohen, Ronnie, Shannon O'Byrne and Patricia Maxwell, _Employment Discriminat
ion Based on Sexual Orientation: The American, Canadian and U.K. Responses_,
 17 L. & Inequality 1 (Winter 1999).

Dent, George W., Jr., _Secularism and the Supreme Court_, 1999 Brigham Young
 U. L. Rev. 1 (in the context of a historical review of the role of religion
 in legal decision-making, a brief consideration of _Romer v. Evans_, which 
from the author's perspective reflects hostility to religion by the Supreme 
Court majority).

Donovan, James M., _An Ethical Argument to Restrict Domestic Partnerships to
 Same-Sex Couples_, 8 L. & Sexuality 649 (1998).

Dworkin, Gerald, _Devlin Was Right: Law and the Enforcement of Morality_, 40
 Wm. & Mary L. Rev. 927 (March 1999)(including responses by Jeffrie G. Murph
y and Lawrence C. Becker).

Foote, William E., and Jane Goodman-Delahunty, _Same-Sex Harassment: Implica
tions of the_ Oncale_ Decision for Forensic Evaluation of Plaintiffs_, 17 Be
havioral Sciences & L. 123 (1999).

Frost, Cynthia J., Shahar v. Bowers_: That Girl Just Didn't Have Good Sense!
_, 17 L. & Inequality 57 (Winter 1999).

Garrow, David J., _The Right to Die: Death With Dignity in America_, 68 Miss
. L. Rev. 407 (Winter 1998).

Gibson, Jeffrey G., _Lesbian and Gay Prospective Adoptive Parents: The Legal
 Battle_, 26 Hum. Rts. No. 2, 7 (Spring 1999).

Hernandez, Michael V., _The Right of Religious Landlords to Exclude Unmarrie
d Cohabitants: Debunking the Myth of the Tenant's "New Clothes,"_ 77 Nebrask
a L. Rev. 494 (1998).20

Litigation Division Note, _"Don't Ask, Don't Tell" Held Constitutional: Now 
What?_, Army Lawyer, Feb. 1999, 46-49 (suggests that litigation focus will n
ow shift to whether particular discharges are justified under the regulation
s, with particular concern in "speech" cases as to whether the Board of Inqu
iry has adequately evaluated regulatory factors in determining that somebody
 has not rebutted the presumption of a propensity to engage in homosexual co
nduct).

Mingo, Jeffery C., _More Colors Than the Rainbow: Gay Men of Color Speak Abo
ut Their Identities and Legal Choices_, 8 L. & Sexuality 561 (1998).

Mishima, L., _Criminal Prohibition of Sexually Explicit Materials (4): How T
hey Have Been Banned and Freed in the United States_, 45 J. L. & Pol. of Osa
ka City Univ. No. 1 (Nov. 1998).

O'Neil, Robert M., _Student Fees and Student Rights: Evolving Constitutional
 Principles_, 25 J. Coll. & Univ. L. 569 (Winter 1999).

Zinser, L. Michael, _New Supreme Court Rules on Sexual Harassment Liability_
, 22 Am. J. Trial Advoc. 297 (Fall 1998).

_Student Notes & Comments:_

Brennan, John A., _A State Based Right to Physician Assisted Suicide_, 79 Bo
ston U. L. Rev. 231 (Feb. 1999).

Case Law, _Case C-249/96. Lisa Jacqueline Grant v. South-West Trains, Ltd._,
 5 Col. J. European L. 141 (Fall/Winter 1998/99).

Hillis, Lisa, _Intercountry Adoption Under the Hague Convention: Still an At
tractive Option for Homosexuals Seeking to Adopt?_, 6 Indiana J. Global Leg.
 Stud. 237 (Fall 1998).

Hochberg, Melanie, _Protecting Students Against Peer Sexual Harassment: Cong
ress's Constitutional Powers to Pass Title IX_, 74 N.Y.U. L. Rev. 235 (April
 1999).

Law, Erin J., _Taking a Critical Look at Second Parent Adoption_, 8 L. & Sex
uality 699 (1998).

Note, _Irreconcilable Cohabitation Statutes and Statutory Proscriptions Agai
nst Marital Status Discrimination: McCready v. Hoffius and the Unworkable St
atus-Conduct Distinction_, 44 Wayne L. Rev. 1809 (Winter 1999).

Parr, Wendy M., _When Does Male-on-Male Horseplay Become Discrimination Beca
use of Sex?:_ Oncale v. Sundowner Offshore Services, Incorporated, 25 Ohio N
orthern U. L. Rev. 87 (1999).

Pearson, Sheila Lee, In re Mcintyre_: A Victory for Pre-Operative Transgende
r Persons_, 8 L. & Sexuality 731 (1998).

Queen, Thomas I., Jr., _Holding the Same-Sex Sexual Harassment Claim at Arm'
s Length: The Supreme Court's Strict (and Correct) Interpretation of Title V
II in_ Oncale v. Sundowner Offshore Services, Inc., 33 U. Richmond L. Rev. 2
57 (March 1999).

Schaffner, Joan E., _Approaching the New Millennium with Mixed Blessings for
 Harassed Gay Students_, 22 Harv. Women's L. J. 159 (Spring 1999).

Selland, Dirk, _Will Maryland Enter the Twenty-First Century in the Right Di
rection by Rescinding Its Ancient Sodomy Statutes?_, 8 L. & Sexuality 671 (1
998) (Recipient of NLGLA Student Writing Competition Award at Lavender Law 1
998 in Boston.  The answer to the question posed by the title is yes; subseq
uent to the writing of the article, the State of Maryland settled a lawsuit 
challenging the constitutionality of the "ancient sodomy statutes" by agreei
ng that they cannot be enforced against consenting adults regardless of sex.
)

Wolfe, Noel K., Shahar v. Bowers_: The Balance Between Constitutional Rights
 and Governmental Efficiency_, 8 L. & Sexuality 713 (1998).

_Specially Noted:_

In _The Scientific Basis of Child Custody Decisions_ (John Wiley & Sons, 199
9), editors Robert M. Galatzer-Levy and Louis Kraus have assembled essays by
 leading experts in the relevant disciplines to assist judges and lawyers in
 resolving contested custody cases.  The book includes a chapter titled "The
 Best Interest of Children of Gay and Lesbian Parents," by Dr. Amity Pierce 
Buxton.  Dr. Buxton, the heterosexual former spouse of a gay man, has undert
aken significant research on the impact of children and parents when a paren
t "comes out," and that research provides significant data for the chapter, 
which also includes an extensive bibliography of professional publications o
n the subject.  This chapter should be a useful resource for attorneys and l
ay people dealing with these issues, and many other chapters will also have 
relevant information.

Symposium, _Balancing the Equities: The Evolving Law of Sexual Harassment_, 
34 Wake Forest L. Rev. No. 1 (1999).

Symposium, _Should Cyberspace Be a Free Speech Zone?: Filters, "Family Frien
dliness," and the First Amendment_, 15 N.Y. L. Sch. J. Hum. Rts. Part One (1
998).

AIDS & RELATED LEGAL ISSUES:

Dingake, Oagile Key, _HIV/AIDS, Human Rights, Ethics and the Media in Botswa
na_, 13 Zimbabwe L. Rev. 133 (1996).

Gostin, Lawrence O., Scott Burris & Zita Lazzarini, _The Law and the Public'
s Health: A Study of Infectious Disease Law in the United States_, 99 Col. L
. Rev. 59 (January 1999).

King, Michelle R., and Beth S. Herr, _The Consequences and Implications of a
 Case-By-Case Analysis Under the Americans With Disabilities Act for Asympto
matic HIV-Positive Gay Men and Lesbians Post_ Bragdon, 8 L. & Sexuality 531 
(1998).

Salbu, Steven R., _The FDA and Public Access to New Drugs: Appropriate Level
s of Scrutiny in the Wake of HIV, AIDS, and the Diet Drug Debacle_, 79 Bosto
n U. L. Rev. 93 (Feb. 1999).

Weiss, Catherine, and Sherrill Cohen, _Condom Availability Programs in the P
ublic Schools: Approved in the Courts_, 26 Hum. Rts. No. 2, 19 (Spring 1999)
.

White, Christopher C., _Health Care Professionals and Treatment of HIV-Posit
ive Patients: Is There an Affirmative Duty to Treat Under Common Law, the Re
habilitation Act, or the Americans With Disabilities Act?_, 20 J. Legal Med.
 67 (March 1999).

_Student Notes & Comments:_

Bridges, Jonathan, _Mitigating Measures Under the Americans With Disabilitie
s Act: Interpretation and Deference in the Judicial Process_, 74 Notre Dame 
L. Rev. 1061 (March 1999).

Carton, Emily J., _Lethal But Not Disabled? -- The Circuits Split on ADA Cov
erage of the Asymptomatic HIV-Positive Victim_, 103 Dickinson L. Rev. 129 (F
all 1998).

Coffin, Jennifer N., _Civil Rights -- Rehabilitation Act of 1973 and America
ns with Disabilities Act -- HIV-Infected Health Care Workers and the "Direct
 Threat" Defense_, 66 Tenn. L. Rev. 311 (Fall 1998).

Kaemmerling, Michelle, Bragdon v. Abbott_: ADA Protection For Individuals wi
th Asymptomatic HIV_, 77 N.C. L. Rev. 1266 (March 1999).

Kuiper, Jody K., _The Need for Tougher Standards in Washington Imposing Crim
inal Liability for the Intentional Exposure to HIV_, 34 Gonzaga L. Rev. 185 
(1998/99).

Note, _Fourth Amendment Balancing Act: Special Needs of Rape Victims Justify
 Court-Ordered HIV Testing of the Accused_, 29 Seton Hall L. Rev. 1094 (1999
).

Plager, Jenny L., _Foster Parents and AIDS: Considering the Best Interests o
f a Foster Child in_ In re Interest of John T., _4 Neb. Ct. App. 79, 538 N.W
.2d 761 (1995)_, 77 Neb. L. Rev. 617 (1998).

Recent Developments, _Tort Law -- Actual Exposure or Possible Exposure?: The
 AIDS Phobia Debate -- Are Courts Opening the Litigation Floodgates or Illus
trating Judicial Proscription?_, 22 Am. J. Trial Advoc. 495 (Fall 1998).

Staff of Volume 8, _State Statutes Dealing With HIV and AIDS: A Comprehensiv
e State-by-State Summary_, 8 L. & Sexuality 1 (1998).

_Specially Noted:_

The first 530 pages of 8 L. & Sexuality (1998) is devoted to a compilation a
nd summary of state laws dealing with HIV and AIDS, an update of a prior sum
mary published in this journal in 1995.  Individual copies of the journal ar
e available; call 504-865-5835, or check their website: <http://www.law.tula
ne.edu/journals.htm>.

EDITOR'S NOTE:

_Correction:_ In the May issue of _Law Notes_, reporting on the decision in 
_People v. Jackson_, 1999 WL 242639 (Ill.App., April 26), we inadvertantly r
eversed the names of the defendant and the murder victim a few times in our 
account of the case.  All references to statements by Posey should be attrib
uted to Jackson, since Posey was obviously deceased and not in a position to
 make any statements to the police.20

_Law Notes_ now takes its summer break.  The next issue will be published to
ward the end of July, 1999.

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