LESBIAN/GAY LAW NOTES ISSN 8755-9021 Summer Issue 2002 Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212-431-2156, fax 431-1804; e-mail: asleonard@aol.com or aleonard@nyls.edu Contributing Writers: Fred A. Bernstein, Esq., New York City; Ian Chesir-Teran, Esq., New York City; Alan J. Jacobs, Esq., New York City; Steven Kolodny, Esq., New York City; Todd V. Lamb, Esq., New York; Mark Major, Esq., New Jersey; Sharon McGowan, Esq., Cambridge, MA; Tara Scavo, Student, NY Law School '03; Daniel R Schaffer, New York City; Robert Wintemute, Esq., King's College, London, England. Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118; e-mail: le- gal@interport.net (C) 2002 by the Lesbian & Gay Law Association Foundation of Greater New York. ARKANSAS SUPREME COURT RULES SODOMY LAW INAPPLICABLE TO PRIVATE, CONSENSUAL SEX In a belated Independence Day present to lesbian and gay residents of Arkansas, that state's Supreme Court ruled on July 5 in _Jegley v. Picado_, 2002 WL 1453664, that the state's same-sex sodomy law was unconstitutional as applied to private behavior by consenting adults. The court's decision invalidated the law based on two provisions of the state constitution, one protecting individual privacy and the other guaranteeing equal protection of the laws. The ruling came in a lawsuit filed years ago by Lambda Legal Defense and Education Fund on behalf of seven gay residents of the state, none of whom had ever actually been prosecuted under the sodomy law but each of whom was willing to declare publicly that they have engaged in illegal sexual activity in private with consenting adult partners and would continue to do so. On that basis, they claimed that they were in danger of prosecution under an invalid criminal statute, and subject to stigmatization and discrimination as a result. Several years of the lawsuit were consumed by argument over whether the plaintiffs had standing to seek a declaration that the law was unconstitutional. The state argued that because there was no record that anybody had been prosecuted under the statute for consensual sex in private since its enactment in 1977 (when it replaced a prior sodomy law that applied to heterosexuals and homosexuals alike and had much more severe penalties), the plaintiffs in this case had no reasonable basis for fearing prosecution. In rejecting that argument in her opinion for the state supreme court, Justice Annabelle Clinton Imber accepted the plaintiffs' argument that as long as the law remained on the books, they were stigmatized as criminals and could suffer a variety of negative consequences, including discrimination by the state in such areas as employment and parental rights. She wrote, "In the past decade, three different attempts to repeal the statute have failed, sending a signal to prosecutors of the statute's continuing vitality. The State has refused to disavow enforcement of the statute and is, in fact, vigorously defending the legality of the statute in the present action. In addition, albeit for public or nonconsensual conduct, there have been prosecutions under Arkansas's sodomy statute as recently as 1988. In addition, our sodomy statute has been used outside the criminal context in ways harmful to those who engage in same-sex conduct prohibited by the statute. Clearly this statute is not moribund, and the State has not foresworn enforcement of it." In a concurring opinion, Justice Robert L. Brown drove home this point even more strongly, writing, "I agree completely that the State has placed the plaintiffs in a catch-22 situation. According to the State, they are dubbed criminals but have no recourse in the courts to correct this status. The State's counsel at oral argument contended that the sodomy statute is a 'dead letter' and that no prosecutor currently enforces it. Nor has it been enforced for decades, counsel adds. In the same breath, she urges that the statute must be kept on the books and that the plaintiffs should be prevented from challenging it, even while the statute makes them criminals. It is indisputable that the sodomy statute hangs like a sword of Damocles over the heads of the plaintiffs, ready to fall at any moment. The idea of keeping a criminal statute on the books which no one wants to enforce is perverse in itself. This brands the plaintiffs with a scarlet letter that the State contends they should have no chance to contest in the courts of this State. The State's position comes perilously close to complete inconsistency and smacks of a no-lose proposition for the government and a no-win situation for the plaintiffs. Other sister states have refused to countenance this argument and have permitted attacks on their sodomy statutes by plaintiffs who admit to the conduct but who have not been arrested." Justice Brown's reference to "other sister states" was quite significant, since when it came to evaluating the constitutionality of the sodomy law on the merits, the court repeatedly referred to and quoted from decisions by appellate courts in Montana, Kentucky, Tennessee, and Georgia, all relatively recently invalidating sodomy laws by reference to state constitutional privacy arguments, and in some cases equal protection arguments as well. Brown, more than Imber, noted a developing trend in state courts to find criminal treatment of private sexual expression invalid, commenting, "The Georgia reversal is symptomatic of the national sea change in attitude towards statutes such as these." Justice Imber strongly asserted the unconstitutionality of the statute, broadly proclaiming the right of Arkansas citizens to protection from government interference with their privacy. After reviewing constitutional text, various state statutes, rules and court decisions, she wrote, "In considering our constitution together with the statutes, rules, and case law mentioned above, it is clear to this court that Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution. . . . [We] hold that the fundamental right to privacy implicit in our law protects all private, consensual, noncommercial acts of sexual intimacy between adults. Because Ark. Code Ann. secs. 5-14-122 burdens certain sexual conduct between members of the same sex, we find that it infringes upon the fundamental right to privacy guaranteed to the citizens of Arkansas." Since the right to privacy was found to be fundamental, any statute that burdens it is subject to strict scrutiny, under which it could only be upheld if the government had a compelling justification for it. Here, the court found that the state actually had provided no justification for the invasion of privacy at all. "According to the circuit court's order in this case, appellant concedes that the State can offer no compelling state interest sufficient to justify the sodomy statute. Therefore, Arkansas's sodomy statute at Ark. Code Ann. sec. 5-14-122 is unconstitutional as applied to private, consensual, noncommercial, same-sex sodomy." The court could have stopped at this point, but instead discussed the alternative ground for attacking the statute: equal protection. The challengers argued that by making it criminal for gay people to engage in conduct which was freely allowed to heterosexuals, the state had discriminated on the basis of sex and sexual orientation. If this was found to be sex discrimination, under Arkansas precedents there would be a heightened level of judicial review. The correct standard of review for sexual orientation discrimination was yet to be established by Arkansas's highest court. In this case, the court found that there was a valid claim of sex discrimination, but proceeded to analyze the case by the least demanding standard of judicial review, assuming that there would be no heightened review for a claim of sexual orientation discrimination, and found the law wanting even under that most permissive standard. Justice Imber wrote, "[The state] contends that the prohibitions of the statute are justified by the State's legitimate interest in protecting public morality. Appellees counter that long-standing, negative views about a group of people do not amount to proper justification for differential treatment. . . . We agree that the police power may not be used to enforce a majority morality on persons whose conduct does not harm others. The Arkansas Equal Rights Amendment serves to protect minorities at the hands of majorities. . . . [The] State has a clear and proper role to protect the public from offensive displays of sexual behavior, to protect people from forcible sexual contact, and to protect minors from sexual abuse by adults. However, criminal statutes, including those proscribing indecent exposure, rape, statutory rape, and the like, are in existence to protect the public from precisely such harms." Justice Imber continued that the state "has not offered sufficient reasoning to show that notions of a public morality justify the prohibition of consensual, private intimate behavior between persons of the same sex in the name of the public interest. There is no contention that same-sex sodomy implicates the public health or welfare, the efficient administration of government, the economy, the citizenry, or the promotion of the family unit. We have consistently held that legislation must bear a real or substantial relationship to the protection of public health, safety and welfare, in order that personal rights and property rights not be subjected to arbitrary or oppressive, rather than reasonable, invasion." Thus, the statute was unconstitutional on equal protection grounds. Justice Brown's concurrence focused on emphasizing the spatial privacy aspect of the case -- that the plaintiffs were arguing for the right to engage in sexual activity with their chosen partners in private -- and pointed out that a prior opinion of the court upholding the constitutionality of the previous sodomy law concerned a prosecution for engaging in sexual activity in a parked car, which he characterized as "public activity." There was a dissenting opinion by two members of the court, but it was entirely concerned with the issue of the plaintiffs' standing to bring the case. These justices argued that as nobody had been prosecuted recently under the law for consensual private activity, there was no real threat of prosecution against the plaintiffs. They argued that the discrimination plaintiffs might encounter as gay people was more likely due to social attitudes than to the continued existence of the sodomy law, and thus could not serve as a basis for giving them the kind of personal stake necessary to get a declaration of the law's unconstitutionality. One difference between the opinion for the court and the concurrence by Justice Brown had to do with the final outcome of the case. For a majority of the court, the correct result was to declare that the sodomy law was unconstitutional as applied to adult, consensual private sex. Justice Brown pointed out that there are other statutes to take care of non-consensual or public sex cases, and therefore no need to keep the statute on the books at all. Either way, with Arkansas's criminal sodomy law essentially rendered invalid, there remain only a handful of states in which statutes specifically target gay people for criminal prosecution. In one of those, Texas, a cowardly state supreme court has refused to step in and reverse a retrograde court of appeals decision upholding the same-sex sodomy law on morality grounds. Perhaps this decision from neighboring Arkansas will help the Texas legislature see the wisdom of repealing the sodomy law, as the Arizona legislature recently did in response to privacy arguments. A slightly larger number of states still have sodomy laws that do not distinguish between same-sex and opposite-sex conduct. A.S.L. LESBIAN/GAY LEGAL NEWS Arizona Appeals Court Rules Out Joint Custody for Lesbian Moms; Suggests Visitation Order Instead The Court of Appeals of Arizona has ruled that a trial court abused its discretion when it awarded two lesbians, who separated after living together as domestic partners, joint custody of their daughter. _Nielson v. Thomas_, 2002 WL 1379186 (June 27). The panel unanimously ruled that Arizona's statutory framework does not permit two people of the same gender to have custody of a child, if only one of the two parents is the "legal" (i.e., biological or adoptive) parent of the child, even if both parents raised the child together. While Nielson and Thomas were living together in a committed relationship, Thomas adopted her own sister's newborn daughter. Nielson and Thomas then raised the child together. It was undisputed, and the court found, that Nielson was "in loco parentis" to the child. When the child was one year old, the couple separated and agreed to seek joint custody of the child. In 1988, the trial court entered an order awarding both women joint custody, with Thomas having primary physical custody. Thomas, who had agreed to this arrangement, did not appeal the order. In 1999, Thomas was hospitalized for the seventh time since 1997 for mental health and drug-related issues. Nielson filed a petition for temporary and permanent custody, which Thomas opposed. The trail court issued an order awarding temporary visitation to Nielson and supervised visitation for Thomas. After a hearing in December 2000, and after Thomas had made a personal recovery (including clean drug tests and counseling), the court directed that joint custody resume. The court designated Nielson as the final decision maker on medical, educational and religious issues concerning the child, and awarded costs and attorney's fees to Nielson. Thomas appealed, arguing that the trial court lacked subject matter jurisdiction under Arizona law to issue any of the custody orders . Writing for the appellate panel, Judge Noyes ruled that the trial court had jurisdiction to rule on Nielson's petition for custody, which resulted in the second and third court orders, under A.R.S. 25-415(A)(4)(b). This subsection applies to custody proceedings commenced by a "non-legal parent" if "the child's legal parents are not married to each other at the time the petition is filed." Thomas argued that this subsection did not apply, since the child had only one legal parent, Thomas. (The court's opinion does not discuss the child's biological father at all; presumably, the child was conceived through an unknown sperm donor, or a known donor had relinquished parental rights when Thomas adopted the child.) The court rejected this argument: "To interpret the statute as Thomas argues that it should be interpreted would mean that non-legal parents could initiate custody proceedings if the child has a single legal parent as a result of death, separation, or divorce, but could not do so if the child has a single legal parent as a result of adoption. We find no good reason to so arbitrarily remove adopted children from the protection of [the] statute." On the substantive issue of custody, the court observed that Arizona's statutes do not explicitly permit joint custody between a "legal" parent and a non-parent. Instead, there is a presumption that it is in the best interests of a child to award custody to a legal parent, which can be overcome by the non-legal parent though "clear and convincing" evidence that granting custody of the child to the legal parent would not be in the child's best interests. The court went on to note, however, that the court must make an "either-or decision": "Either it is in the child's best interest for a legal parent to have custody or it is not. The court cannot find that it is in the child's best interest for a legal parent to have custody and that it is also in the child's best interest for a non-legal parent to have custody," Judge Noyes explained. The appellate court vacated the two orders emanating from Nielson's petition, and appeared to recognize the difficult position in which it had placed the trial court. Judge Noyes explained, "We recognize that the trial court made a great effort to decide this case in accordance with the best interests of the child, and we also believe that such an effort need not be frustrated by a statute that requires the court to award custody to only one of the parties. The court can award reasonable visitation rights to the other party, and the court has considerable discretion in shaping the contours of its custody and visitation orders." Jayme Thomas was represented by Nancy A. Stewart. Lisa Nielson was represented by Bette Adelman and Teresa Foster. _Ian Chesir-Teran_ Ohio Appeals Court Approves Change of Custody Away From Lesbian Mom A unanimous court of appeals panel has approved a trial court's decision to switch custody of two young boys from their lesbian mother to their father, finding changed circumstances in the mother's decision to convert to Islam and live with another woman who is a convicted sex offender. _In re Marriage of Faulhaber_, 2002 WL 1401066 (Ohio App., 11th Dist., June 28, 2002) (not reported in N.E.2d). The parties were married in 1991 and had two sons, in 1992 and 1995. In 1999, their marriage was dissolved and the court gave Maria residential and legal custody, awarding Allan the standard visitation order. However, even before the divorce, Maria had met Pia Carrington, now known as Djata Samad, through an internet chatroom, and ultimately Samad, who had become a Muslim, came to live with Maria and the boys. Maria also converted to Islam and changed her name. Samad had done prison time for various offenses, including a sexual offense involving the assault of someone with whom she was previously living. Upon learning about Samad's presence in the household, Allan brought an action to change custody, and was awarded first temporary and then permanent custody of the boys. Maria was granted visitation, with the restriction that another adult always be present when Samad was around. The evidence on which the court relied was a report by a county investigator who supported the change of custody, finding that the children were "far more comfortable" at Allan's home, and that the atmosphere in Maria's home had created "confusion, uncertainty and fear" in the children's lives. Also, the guardian ad litem appointed by the court to represent the children's interests concurred in this recommendation, stating concern about the "cumulative changes" in Maria's life and about Samad's "criminal background." The only dissent came from the court-appointed psychologist, who recommended that the children remain with Maria "on the basis that he did not perceive a change in circumstances sufficient to warrant a change of custody." But the court discounted his testimony because he "was not informed. . . of Samad's criminal history." The court of appeal agreed with the trial court's decision to switch custody, finding no abuse of discretion based on this record. The court rejected Maria's argument that the decision reflected unconstitutional discrimination on the basis of her sexual orientation. Without getting in to any discussion about the level of judicial review for a sexual orientation discrimination claim, Judge Robert Nader observed that Ohio precedents support taking into account the sexual orientation of a parent in terms of the impact it may have on minor children, but asserted that in this case "there is no evidence that the trial court considered the issue of sexual orientation to be determinative." For all the record shows, the trial court was concerned with Samad's past criminal record, not her gender or the sexual nature of her relationship with Maria, in deciding that the children would be better of with Allan. "The court determined that appellant's sudden change in sexual orientation and decision to co-habitate with a convicted sex offender had contributed to appellant becoming 'systematically isolated from the outside world,' including her own parents. The court further determined that appellant's isolation was adversely affecting Ryan and Matthew. Such a determination is not a violation of appellant's constitutional rights." Finding that the trial court's decision was not against the weight of the evidence, Nader articulated the bottom line in this case: "The fact remains that appellant has undergone many changes in her life and is currently living with a convicted sex offender. Therefore, weighing the evidence and all reasonable inferences, we cannot conclude that the trial court clearly lost its way or created such a manifest miscarriage of justice that the judgment must be reversed." A.S.L. Battle Continues Over Mass. Marriage Amendment Although the Massachusetts Supreme Judicial Court rejected constitutional objections to a proposed state constitutional amendment that would ban same-sex marriages, _Albano v. Attorney General_, 2002 WL 1286977 (June 13, 2002), legislative maneuvering may keep the measure off the ballot, according to press reports from the Bay State. The state's legislature received a petition with sufficient valid signatures, proposing to add to the state constitution a provision stating that only a marriage between one man and one woman would be valid and recognized in Massachusetts, and further providing that same-sex couples would be ineligible to receive any of the benefits or incidents exclusive to marriage from the state or any of its agencies, departments, authorities, commissions, officials, and political subdivisions. Opponents fear that enactment of this measure would go beyond banning same-sex marriages to curtailing the ability of state officials either voluntarily, or by court order, to extend recognition to same- sex couples in any context. (For example, under Massachusetts high court rulings, same-sex couples may jointly adopt children; if enacted, would the proposed amendment overrule that decision?) Filing suit on behalf of a group of Massachusetts same-sex couples, Gay & Lesbian Advocates & Defenders challenged the proposal on two grounds: that it violates a ban on referenda relating to the powers of the courts, and that it improperly contains subject matter that is not related or mutually dependent, thus presenting multiple policy questions to voters in one yes-or-no vote. The high court unanimously rejected both of these arguments, in a short opinion by Justice Cowin. As to the first, Cowin observed that past cases have established that the only referenda that would run afoul of the "powers of the courts" limitation are those that would literally strip the courts of jurisdiction to hear particular kinds of cases, or expressly deprive the courts of particular remedial powers. Cowin asserted that a measure seeking to change substantive law would not be such a measure. Turning to the more substantive objection, Cowin refused to indulge the argument that the proposal improperly combines unrelated subjects. The plaintiffs pointed out that the measure "affects same-sex couples in many different contexts," and listed a variety of statutes relating to the rights and responsibilities of marriage, including those relating to inheritance, taxes, medical decisions, and wrongful death claims. Cowin responded that "an initiative petition can address more than one subject if those subjects are related. Subjects are related '[i]f . . . one can identify a common purpose to which each subject of an initiative petition can reasonably be said to be germane.' Here, the entire petition relates to the common purpose of restricting the benefits and incidents of marriage to opposite-sex couples. Although the plaintiffs list many statutes that may be affected should the measure be adopted, each statute affected creates a benefit or responsibility that arises from married status. A measure does not fail the relatedness requirement just because it affects more than one statute, as long as the provisions of the petition are related by a common purpose." Thus, the court concluded that the Attorney General had properly certified the proposal as complying with constitutional requirements, thus putting the ball in the legislature's court. Under Massachusetts law, in order to be placed on the ballot, a referendum must attain an affirmative vote of 25 percent of the House and Senate members. Senate President Thomas F. Birmingham, hoping to block the referendum, has maneuvered to keep the matter from coming to a vote. Claiming that other pending proposed constitutional changes were occupying legislators, who would need more time to consider the merits of the marriage proposal, Birmingham managed to put off legislative consideration until later in July, according to a June 20 report in the _Boston Globe_. A.S.L. Lambda Files Marriage Suit in New Jersey Opening a new front in the same-sex marriage campaign, Lambda Legal Defense & Education Fund filed a complaint in the New Jersey Superior Court, Hudson County Chancery Division, on June 26, seeking injunctive relief against state officials who refused to provide marriage license applications to the seven plaintiff couples during the previous weeks. _Lewis v. Harris_. This is the first case filed by Lambda, the nation's largest and oldest lesbian and gay rights public interest law firm, seeking same-sex marriage. (Lambda entered the Hawaii case, which had originally been filed by an individual attorney, at a later stage in the litigation. With the exception of the Vermont and Massachusetts cases, which were filed by Gay and Lesbian Advocates and Defenders, a Boston-based public interest firm, all other same-sex marriage cases to date have been filed by individuals on their own behalf using private counsel.) Lambda's complaint focuses on Article I, paragraph 1 of the New Jersey Constitution of 1947, which provides: "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness." This provision had been construed as a guarantee of due process, equal protection, and a right of privacy. In Count 1 of the Complaint, Lambda alleges that governmental interference with the right of same-sex couples to marry is a denial of the right to privacy, characterized as a "core personal choice." In Count 2, Lambda alleges a denial of equal protection. Lambda attorneys listed as counsel on the case are David S. Buckel, Adam Aronson, and Legal Director Ruth E. Harlow. New Jersey counsel are Lawrence S. Lustberg and Risa E. Kaufman of Gibbons, Del Deo, Dolan, Griffinger & Vecchione. The filing of the complaint drew national media attention, including arguments by proponents of a federal constitutional amendment to ban same-sex marriage that this lawsuit reinforces the need for such an amendment. A.S.L. Supreme Court Opts for More Time to Sue on Hostile Environment Claims In _National Railroad Passenger Corp. v. Morgan_, 122 S. Ct. 2061 (June 10, 2002), the Supreme Court clarified how lower courts should apply the statute of limitations in various types of employment discrimination cases. In order to recover damages for discrete acts of discrimination by an employer, an aggrieved employee must file charges within the 180- or 300-day limitations period specified by Title VII. When an employee alleges a hostile work environment, however, the employee is entitled to seek damages for the entire period that the hostile work environment existed so long as one act contributing to the hostile environment occurred within the relevant time period. Abner Morgan sued Amtrak for both discrete acts of racial discrimination and for perpetuating a racially hostile work environment. Morgan filed a complaint with the EEOC in February 1995, and the agency issued a right to sue letter in July 1996. Morgan filed his lawsuit against Amtrak in a California federal court three months later. Morgan's complaint contained a litany of allegedly discriminatory acts, some of which had occurred within 300 days of the time that he filed his charge with the EEOC, but many of which had taken place earlier. Amtrak filed a motion for summary judgment, asking the district court to throw out any claims stemming from actions occurring outside of this 300-day period. The district court granted the motion, and Morgan appealed. The Ninth Circuit Court of Appeals reversed the district court, ruling that, under the "continuing violations doctrine," Morgan could seek damages for the entire period of discrimination so long as the incidents falling outside of the time period represented part of an "ongoing unlawful employment practice." When a plaintiff seeks to hold an employer liable for an "unlawful employment practice," he must file a complaint with the EEOC within 180 days of when the practice occurred. If the plaintiff lives in a state that has an agency authorized to grant relief for such complaints, Title VII allows the plaintiff 300 days to file his complaint with the EEOC, a federal agency, in order to give the plaintiff an opportunity to resolve the dispute through state processes. As a result, the pivotal question facing the Court in _Morgan_ was "what constitutes an 'unlawful employment practice' and when has that practice occurred," so that one can determine when the 180- or 300-day clock begins to run. The 9th Circuit had ruled that a series of discrete discriminatory acts could qualify as one "unlawful employment practice," meaning that so long as one act occurred within the statutory time period, the plaintiff could seek to recover for the entire period during which the "practice" took place. Interestingly, Justice Thomas parted company with his conservative colleagues to write the opinion for the Court, which affirmed in part and reversed in part the 9th Circuit's decision. Rejecting the lower court's analysis, Justice Thomas observed that on numerous previous occasions the Supreme Court has reiterated that "the term 'practice' [can] apply to a discrete act or single 'occurrence,' even when it has a connection to other acts." Accordingly, all nine Justices agreed that, when a plaintiff seeks to hold an employer liable for a specific discriminatory act, the clock begins to run at the moment the act occurs. "Each discrete discriminatory act starts a new clock for filing charges alleging that act," the Court stated. A plaintiff may seek to recover for a number of discriminatory incidents, but each one must fall within the statutory time period. A plaintiff may nevertheless include information about discriminatory acts falling outside of that period to explain the context within which the timely acts occurred. He may not, however, seek damages for actions that occurred outside the statutory period. Hostile work environment claims, on the other hand, require a different analysis, as they are "different in kind from discrete acts" because "[t]heir very nature involves repeated conduct." These claims are based on the cumulative effect of individual acts, no one of which may be actionable when viewed in isolation. As a result, Justice Thomas wrote, "[i]t does not matter, for purposes of [Title VII,] that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." A plaintiff may not, however, delay for an unreasonable amount of time before filing a hostile work environment claim. The Court made clear that a plaintiff may waive his rights if he does not timely assert them. Likewise, an employer may assert defenses of estoppel and equitable tolling "when equity so requires." Justice O'Connor wrote separately, joined by Chief Justice Rehnquist and Justices Scalia and Kennedy. She agreed with the majority's analysis regarding discrete acts of discrimination, and insisted that there was no reason to apply a different rule when handling hostile work environment claims. "Although a hostile environment claim is, by its nature, a general atmosphere of discrimination not completely reducible to particular discriminatory acts, each day the worker is exposed to the hostile environment may still be treated as a separate 'occurrence,' and claims based on some of those occurrences forfeited." Justice O'Connor also wrote a paragraph, joined only by Justice Breyer, in which she insisted that a "discovery" rule should be used to determine when the statutory clock begins to run for claims regarding discrete discriminatory actions. Under this rule, a plaintiff must file his claim within 180 or 300 days after he had, or should have had, notice of the discriminatory act. She left for another day, however, the question of how this discovery rule should be applied in specific cases. Justice Thomas, on the other hand, specifically avoided discussing the discovery rule in the majority opinion, stating in two separate footnotes, one dealing with discrete claims of discriminatory conduct and the other regarding hostile environment claims, that Morgan's case "presents no occasion to resolve that issue." Although this case involved racial discrimination, the Court's holding will apply with equal force to sex discrimination cases, which is good news for LGBT advocates. Although Title VII does not (yet) include sexual orientation as a protected category, many LGBT plaintiffs have nonetheless been able to use this statute to recover damages against employers who discriminated against them because they did not conform to traditional gender stereotypes (i.e., butch women and effeminate men). If Congress ever amends Title VII to include sexual orientation, or if Congress passes the Employment Non-Discrimination Act (ENDA), the principles announced in Morgan might be applicable to lawsuits involving sexual orientation discrimination as well. _Sharon McGowan_ 7th Circuit Rebuffs Gay Tax Rebel - Again For a second time, Robert Mueller unsuccessfully sought to win the sympathies of a U.S. Court of Appeals, 7th Circuit, panel for his argument that the Internal Revenue Code violates the constitution by denying him and his domestic partner, Todd Bates, the right to file jointly and benefit from the standardized deduction for married couples. _Meuller v. Commissioner of Internal Revenue_, 2002 WL 1401297 (unpublished disposition). Last year, in _Mueller v. Comm'r_, No. 00-3587, 2001 WL 522388 (7th Cir., April 6, 2001), the court rejected Mueller's attempt to draw into question the constitutionality of the Defense of Marriage Act, noting that he was disputing his taxes for the years 1985-1995, and that the DOMA did not go into effect until after it was enacted in the fall of 1996. That argument was not available to the court this year, when Mueller's 1996 return was at issue. Mueller and Bates both signed the return, checking the joint filing status (although crossing out the word 'married') and claiming a standardized deduction provided for married filers. The IRS then went after Mueller for an additional $8,712, and the Tax Court rejected his arguments. On the appeal, Mueller renewed his claim that the failure to make joint filing status available to same-sex couples violates the constitution, and that to the extent a contrary result is dictated by DOMA, then DOMA is unconstitutional. But the judges refused to be drawn into a dispute about the constitutionality of DOMA. Observing that DOMA, by its terms, is limited to withdrawing federal recognition from same-sex marriages that have been recognized under a state's marriage law, the court noted that Mueller and Bates have not obtained a state- recognized marriage in Illinois, their domicile, and thus DOMA is irrelevant to their case. Having disposed of Mueller's attempt to get them to address DOMA, they apparently decided not to address anything, since there is no substantive discussion in this short, unpublished memorandum of the merits of his equal protection claim. For the court, the case boiled down to the lack of any dispute about the amount due under Mueller's recalculated 1996 income tax, so the court affirmed the Tax Court's ruling ordering Mueller to pay up, and concluded with a little lecture to him: "We remind Mr. Mueller once again that despite his personal dissatisfaction with the current tax laws, he does not have license to ignore them. We also warn Mr. Mueller that if he continues to file frivolous tax appeals, he faces the possibility of sanctions." A.S.L. Maryland High Court Upholds Montgomery County Domestic Partnership Benefits In a unanimous opinion issued on June 14, Maryland's highest court upheld the validity of Montgomery County's ordinance that provides domestic partnership benefits for the same-sex partners of county employees. _Tyma v. Montgomery County_, (Md. Ct. App.). The opinion by Chief Justice Bell cites and relies on numerous decisions by the courts of other states upholding similar benefits plans. Surprisingly, the taxpayer plaintiffs did not argue that the plan might violate the Equal Protection Clause by failing to provide benefits for same-sex domestic partners. The Montgomery County Council and the County Executive enacted the Employee Benefits Equity Act late in 1999. The act extends benefits, such as health, leave, and survivor benefits, to the same-sex domestic partners of County employees on the same basis that those benefits are extended to legal spouses. The Council cited two policy bases for the Act: the County's "longstanding policy, in law and practice, against employment discrimination based on sexual orientation," and a stated belief that "it is unfair to treat employees differently based solely on whether the employee's partner is legally recognized as a spouse." The statement of findings indicated that many other employers are providing such benefits, and that the County had to do so in order to be competitive in hiring qualified employees. When these types of laws are passed, the conservative legal foundations swing into action, recruiting some local citizens to be named plaintiffs in a challenge to the validity of the local law. The resulting lawsuit usually turns on issues of state constitutional and statutory law, most specifically on the degree of legislative autonomy that the state grants to its political subdivisions, on principles of state law preemption, and, perhaps most crucially on whether there is a state law or regulation that on its face restricts who may receive benefits flowing from public employment. In Maryland, counties are authorized to establish a charter granting their legislative bodies broad jurisdiction to pass laws on matters affecting public health and welfare, and local governments are delegated broad authority to establish their employee benefits policies. There is no state law strictly defining who can receive benefits through a link to public employment. The main distinction seems to be between truly local laws and laws on subjects having state- wide impact and significance. The Court of Appeals easily agreed with the trial court that the Act was merely an instance of a local government body establishing its own employee benefit policies, had no extraterritorial scope or ambition, and thus did not run afoul of whatever restrictions are explicit or implicit in the governing home rule laws respecting the legislative competence of the county council. Taking on the more serious issue of preemption, the court decisively rejected the plaintiffs' argument that the domestic partnership act was a wolf in sheep's clothing - an attempt to undermine the state's statutory ban on same- sex marriage. "We agree with the Circuit Court that the County had the authority, and clearly so, to enact the subject benefits legislation and that the Act is a local law that does not infringe upon the Legislature's ability to regulate marriage on a statewide basis," wrote Chief Justice Bell. "The Act at issue in this case does not, and does not purport to, define or regulate marriage in Maryland. Indeed, the Act itself includes the purpose for which the County enacted it, setting out the County's specific findings that 'many private and public employers provide or plan to provide benefits for the domestic partners of their employees' and that '[p]roviding domestic partner benefits will significantly enhance the County's ability to recruit and retain highly qualified employees and will promote employee loyalty and workplace diversity.'" The court asserted that the County "must have the power to regulate local employment and, as to that, its employees." The court found that its own prior precedents tended to support this view, and also observed that in other jurisdictions, the courts had routinely upheld the validity of local domestic partnership laws, except where there was a specific state benefits law with which the partners law would specifically conflict. (Also, most the decision rejecting benefit plans are older, while the string of recent rulings in support of their validity constitutes a clear trend.) "Nothing in the Act purports to, or can be construed to, create an alternate form of marriage, authorize common law marriage or create any legal relationship," Bell insisted. "Nor does the Act, by its terms or implication, restrict, modify or later any rights incident to a marriage recognized in this State or give one domestic partner rights, beyond the employment benefits enumerated, against the other. . . As a matter of fact, therefore and in sum, the Act affects only the personnel policies of Montgomery County and does not implicate the State's interest in marriage or affect the State's ability to regulate marriage on a statewide basis." The court also rejected a federal preemption argument, based on provisions of the Act purporting to make same-sex partners eligible for certain benefits that may be founded out of federal or state tax revenue. A.S.L. Nebraska Supreme Court Revives Co-Parent Custody Suit The Nebraska Supreme Court unanimously reversed a trial court decision that had granted summary judgment against a lesbian co-parent who was seeking custody and visitation rights on the basis of an out-of-state co-parent adoption order in _Russell v. Bridgens_, 264 Neb. 217 (June 28, 2002). However, the court's ruling was narrowly premised on the trial court's incorrect allocation of proof burdens and did not address important legal issues underlying the case. These issues were addressed in detail by a concurring opinion. Serenna D. Russell and Joan C. Bridgens were living together as partners in December 1997 when they jointly adopted a young boy, who had been singly adopted the year before by Bridgens. According to the 1997 adoption decree issued by a Pennsylvania Common Pleas Court, "all requirements of the Acts of Assembly have been fulfilled and complied with." Subsequent to the adoption, the two women were raising the child together and had moved to Germany. However, in August 1999, Russell and the child returned to the U.S., while Bridgens remained in Germany. On November 21, 2000, Russell, then living in Douglas County, Nebraska, filed a petition to establish custody and support for the child, drawing a cross-petition from Bridgens, who subsequently moved for summary judgment. Russell was apparently asserting a right to seek sole custody as an adoptive parent of the child. Bridgens argued in opposition that the Pennsylvania adoption order was invalid, inasmuch as Pennsylvania appellate courts have found that two unmarried persons of the same sex may not jointly adopt a child, an issues that is current only appeal to the Pennsylvania Supreme Court. The trial court, looking at these Pennsylvania decisions, concluded that the Common Pleas Court lacked jurisdiction to approve the adoption, since Bridgens had not given consent to termination of her parental rights, which would be required in all but stepparent adoption cases, and thus granted summary judgment to Bridgens, who now has custody of the child. The Supreme Court took Russell's appeal directly, finding need for expedition in the case, but Justice Stephan's opinion for the court does not provide for a speedy outcome. Stephan found that Bridgens failed to carry her burden of proving the Pennsylvania adoption invalid. The only documentary evidence in the record before the trial court is the facially valid Pennsylvania adoption order, which recites that all laws have been complied with. If Bridgens wants to challenge that adoption as an underlying basis for Russell's standing to seek custody, she will have to provide more documentary evidence. "There is no evidence in the record establishing that the necessary consents were not included with the petition for adoption or that Bridgens did not, in fact, relinquish her parental rights prior to the 1997 'coparent' adoption," wrote Stephan. Thus, no burden shifted to Russell to show that the statutory requirements were met, and summary judgment was improper. Concurring, in an opinion that was also joined by Justice Wright, Justice Gerrard argued that the Pennsylvania adoption, being facially valid and having recited within the order that all statutory requirement were complied with, should be entitled to full faith and credit in a Nebraska court. Furthermore, Gerrard argued, Russell's standing as an adoptive parent might be irrelevant, because Nebraska has also recognized an _in loco parentis_ theory by which somebody such as Russell could prove an actual parental relationship and thus gain standing to seek custody. As to this, Gerrard pointed out that Russell had offered an affidavit concerning her relationship with the child, which had been rejected as irrelevant by the trial court. Gerrard found this ruling to be erroneous, since such evidence would be probative of the _in loco parentis_ argument. Russell is represented by Susan Ann Koenig and Angela Dunne Tiritilli, and John F. Eker III represents Bridgens. Support Center for Child Advocates and others filed an amicus brief, as did the ACLU Foundation of Nebraska. A.S.L. Ohio Appeals Court Endorses Emotional Distress Claim for Anti-Gay Workplace Harassment, But Rejects Sexual Orientation Discrimination Claim Barry Tenney, an employee at GE since 1973, alleges that he suffered several years of constant harassment from his supervisors and co-workers, and that GE endorsed and engaged in the conduct. Among his accusations are that fellow employees made outrageous comments abut Tenney's parents; told Tenney that he's a trouble-maker, a bad worker and a liar; made death threats; wrote graffiti on bathroom walls saying that Tenney had AIDS; and other similar conduct. Tenney claims that this conduct caused him severe emotional distress and depression, making him unable to devote his full attention to the job. _Tenney v. General Elec. Co._, 2002 WL 1305990 (Ohio App. 11th Dist., June 14, 2002). Tenney brought charges that his co-workers interfered with his employment relationship; that they and GE intentionally inflicted emotional distress; and that they discriminated against him based on sexual orientation. The defendants asked for and received summary judgment for failure to state a claim upon which relief could be granted, and the matter was appealed to the court of appeals, 11th District, for which Judge Robert A. Nader wrote the opinion. The Supreme Court of Ohio has held that intentional infliction of emotional distress may be proved by showing: (1) that the defendant intended to cause the plaintiff serious distress, (2) that the defendant's conduct was extreme and outrageous, and (3) that the defendant's conduct was the proximate cause of plaintiff's serious emotional distress. _Phung v. Waste Mgt., Inc._, 71 Ohio St. 3d 408, 410, 644 N.E.2d 286 (1994). The _Tenney_ court in found that, if Tenney's allegations can be substantiated, intentional infliction of emotional distress might be provable. The lower court was reversed on this count. However, sexual orientation discrimination is not illegal in Ohio. The absence of the words "sexual orientation" in the Ohio civil rights statute suggests that the legislature did not intend to make such discrimination illegal. The Ohio Supreme Court has had the opportunity to extend protections to gay people, according to Judge Nader, but has not done so, although a concurrence in _Retterer v. Whirlpool Corp._, 89 Ohio St. 3d 1215, 729 N.E.2d 760 (2000), stated that "it is only a matter of time before the question [of sexual orientation discrimination] is properly before the court." Under present law, the _Tenney_ court had to conclude that civil rights statutes do not apply to sexual orientation discrimination, and the court affirmed summary judgment on this issue for GE and Tenney's co-workers. A dissenting judge, Judith A. Christley, would extend civil rights protections to sexual orientation based on the Ohio Supreme Court's holding that the civil rights statute protects against all forms of sex discrimination in the workplace, including discrimination consisting of same-sex sexual harassment. _Hampel v. Food Ingredients Specialties, Inc._, 89 Ohio St. 3d 169, 729 N.E.2d 726 (2000). She noted that the discriminatory conduct need not be motivated by sexual desire to support an inference of discrimination based on sex, citing _Oncale v. Sundowner Offshore Servs., Inc._, 525 U.S. 75, 80 (1998). Therefore, she would characterize Tenney's claim as one for same-sex sexual harassment, and extend protection to discrimination based on sexual orientation. _Alan J. Jacobs_ Harassed Florida Lesbian Suffers Dismissal of Claims Against Employer and Coworkers In a brief per curiam opinion, a Florida appeals court affirmed the dismissal of a complaint filed by a lesbian against her employer and coworkers for employment discrimination and intentional infliction of emotional distress. _De La Campa v. Grifols America, Inc._, 2002 WL 1269560 (June 26, 2002). Turning first to the discrimination claim, the court agreed with the trial court's determination that chapter 11A of the Miami-Dade County Code, which prohibits discrimination in employment on the basis of sexual orientation, provides no private cause of action for individuals to enforce those guarantees. Aindry De La Campa contested this finding, insisting that she had received a notice of a right to sue from the Miami-Dade County Equal Opportunity Board that authorized her lawsuit pursuant to section 11A-12 of the County Code. While this section used to provide a private cause of action, however, the court observed that this provision had been eliminated by a more recent amendment to the Code. Therefore, notwithstanding the language in the Board's right to sue letter, the court ruled that De La Campa was not entitled to enforce her rights under the Code through a private lawsuit. With regard to her claim of intentional infliction of emotional distress, the court ruled that the harassment allegedly suffered by De La Campa did not rise to a level that would sustain liability under Florida law. A plaintiff alleging intentional infliction of emotional distress must show that (1) the wrongdoer's conduct was intentional or reckless; (2) the conduct was outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. The court explained that, with regard to prong two, the Florida Supreme Court has ruled that, for conduct to be considered "outrageous," it must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." The question of whether prong two has been satisfied is a question of law to be decided by the trial judge. The court then observed that claims for intentional infliction of emotional distress based solely on allegations of verbal abuse have rarely survived this stringent test. In most cases, the verbal abuse must be accompanied by some type of offensive touching in order for liability to attach. Turning then to De La Campa's complaint, the court noted that her allegations of sexual harassment consisted primarily of derogatory comments relating to homosexuality and other abusive acts, such as excluding her from corporate sponsored social functions because of her sexual orientation. While commenting that De La Campa's allegations, if true, "constitute objectionable and offensive conduct," the court ruled that as a matter of law they "do not rise to the level of outrageousness that is required by law in a claim for intentional infliction of emotional distress." Accordingly, the court threw out the claims against De La Campa's homophobic coworkers and the vicarious liability claim lodged against her employer. _Sharon McGowan_ 4th Circuit Rejects Equal Protection Challenge to Prison Housing Policy A unanimous panel of the U.S. Court of Appeals for the 4th Circuit ruled against an equal protection challenge to a prison's alleged policy of denying all requests by gay male prisoners to be housed in a double-occupancy cell. _ v. Wyche_, 2002 WL 1331775 (June 18, 2002). Using a rational basis standard of review made more deferential by the prison settings, the court concluded that prison authorities have sound reasons to house gay male prisoners in single-occupancy cells. The plaintiff prisoner was represented by students from the University of Virginia's Appellate Litigation Clinic. Daniel Veney, a gay man, was incarcerated at Riverside Regional Jail in Hopewell, Virginia., beginning in January, 2000. Throughout his first year, he was kept in a single-occupancy cell except for two days. He made several requests to be put in a double-occupancy cell, but was denied. He filed a grievance, alleging he was discriminated against because of his sex and sexual orientation, arguing that the prison apparently denies double-occupancy cells only to gay male prisoners. His grievance was denied, and his subsequent federal lawsuit under 42 U.S.C. sec. 1983 was dismissed by District Judge Jerome B. Friedman (E.D.Va.). On appeal, Veney continued to argue that there was no good penological justification for denying gay men an equal opportunity to live in double-occupancy cells. The prison authorities have consistently taken the position that they have no such policy, but rather that there is a general policy against changing cell assignments unless necessary for security or medical reasons. However, for purposes of deciding whether summary judgement should be granted against Veney, the court treats his allegations as true. Writing for the court, Judge Williams began the analysis by finding that Veney had stated a prima facie case of intentional discrimination. However, this was just the beginning of the analysis, the crucial question being the degree of judicial scrutiny that would be given to a facially discriminatory prison housing policy. Williams noted that the standard of review in an equal protection case that does not involve either a fundamental right or a suspect classification is the deferential rational basis test, tempered in prison cases by strong deference to legitimate penological concerns that may underpin a challenged policy. In this case, Williams found that no claim of deprivation of a fundamental right was involved, since there is no constitutionally-based fundamental right for prisoners to be in double-occupancy cells. Perhaps more controversial is Williams' contention that this case did not involve a suspect classification. The basis for that assertion was simply a citation to _Romer v. Evans_, 517 U.S. 620 (1996), a case in which the Supreme Court did _not_ determine the appropriate standard for reviewing a sexual orientation discrimination claim, but found that the policy challenged in that case would not even survive a rational basis review, and so struck it down. In common with all too many other lower federal courts, the 4th Circuit in this case misconstrues this to be a holding that sexual orientation discrimination claims are not subject to heightened scrutiny. Neither the Supreme Court in _Romer_ nor the 4th Circuit in this case devotes any attention or discussion to the question whether a higher level scrutiny should apply in sexual orientation cases, applying the traditional tests that were used in other cases in the past. Having decided to view the challenged policy from the perspective of the least intrusive level of review, the court concluded that there were many penological justifications for housing gay inmates in single-person cells. Perhaps most significantly, the court relied on the hate crime phenomenon, observing that documented hate crimes are significant in number, signifying widespread hostility towards gay people; thus prison authorities could argue that any policy of housing gays separately from straight prisoners would be justified as a safety precaution, and housing them with other gay prisoners might give rise to sexual activity that violates prison rules (Horrors, we had no idea that any gay sex was happening in prisons!!!). Thus, it struck the court as rational to house gays singly in order to avoid unnecessary confrontations with straight prisoners. Judge Williams also noted that housing gay male prisoners separately could be a prophylactic measure to stem the spread of HIV/AIDS in prison populations. As to the claimed sex discrimination, which would be subjected to a somewhat higher level of scrutiny, Williams opined that there were differences between gay men and lesbians, and the ways they relate to other men and women, that would justify having a policy regarding gay men and following a different policy on housing of lesbians. Straight men were seen as more likely to be intolerant to gay prisoners than straight women, so the safety issues (and possibly the medical issues) where seen as more strongly weighing against segregated living conditions for gay prisoners. At the end, the court affirmed the district court and affirmed the grant of summary judgment against the plaintiff. A.S.L. 3rd Circuit Invalidates Federal Requirement for Library Internet Filters A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit unanimously ruled May 31 that the Children's Internet Protection Act (CIPA) violates the 1st Amendment, and permanently enjoined its enforcement. _American Library Association, Inc. v. United States_, 2002 WL 1126046. CIPA would have effectively barred access on public library computers to thousands of gay and lesbian-related websites that would be automatically blocked by commercial software intended to block access to sexually-related materials. CIPA arose out of Congress's concern that federal money provided to public libraries could be paying for adults to access pornography online at library internet terminals. The idea of anybody accessing sexually-explicit material at public expense is anathema to most hypocritical publicly-sex-phobic politicians, so Congress rushed to do something about it by placing a draconian condition on federal financial assistance to public libraries. (Since public libraries are drastically underfunded in this country and many could not exist without the pittance of federal assistance they receive, this is a serious threat.) Under the law, libraries that do not put filtering software into place to block access to sexually-oriented materials on their terminals would forfeit both their general federal financial assistance and also the specific assistance (including cut-rate internet access) that they are provided under programs enacted during the Clinton Administration to assure widespread public accessibility of the internet. The problem, as Chief Circuit Judge Becker pointed out in the opinion, is that no blocking software now available is sensitive enough to distinguish between obscene and non-obscene sexually oriented material, or to distinguish between such material that is or is not harmful to minors, another "banned" category under CIPA. (Imagine, Congress wants library computer terminals rigged so that nobody can see anything on them that a member of Congress would consider to be harmful to a minor. Further progress in the infantilizing of America. . .) Blocking software is based on detecting words and phrases, and is not sensitive to graphic images. This means that only if the text accompanying graphics contains key words and phrases will it be detected by the software. In addition, innocuous uses of the words and phrases could result in blocking a particular website, even though it was non- obscene and/or non-pornographic and contained nothing harmful to children. During a trial, the court heard testimony from several library users about how materials whose access is surely permissible under CIPA would be blocked. "One teenager testified that the Internet access in a public library was the only venue in which she could obtain information important to her about her own sexuality. Another library patron witness described using the Internet to research breast cancer and reconstructive surgery for his mother who had breast surgery. Even though some filtering programs contain exceptions for health and education, the exceptions do not solve the problem of overblocking constitutionally protected material," wrote Judge Becker. The key issue for judicial review, of course, was whether the government could sustain the program by showing that it was a rational approach to dealing with the problem identified by Congress, or whether CIPA is to be judge under the "strict scrutiny" standard because it is clearly a content-based regulation of speech. The court found that "strict scrutiny" is the appropriate standard in this case, rejecting the government's argument that putting on blocking software is similar to a library making a decision - clearly not subject to strict scrutiny - about which books to buy or magazines to obtain via subscription. The court pointed out that when buying a filtering program, the library cannot be sure which particular websites will be blocked and which will not be, as each software company has its own proprietary software that can do no more than generally describe the parameters of its operations. Thus, the library can hardly be said to be exercising a conscious decision of choice as to which websites it wants to make available when it purchases such software. The court found that not only would existing blocking technologies block thousands of constitutionally-protected websites that are unobjectionable under CIPA, but they would also fail to block many websites of the type that Congress meant to include within the statutory prohibition, again because of the lack of sensitivity to graphics in the screening software. Thus, such software is not particularly affective in achieving Congress's purpose, and the statutory requirement fails to meet the test of strict scrutiny, which is that the statutory requirement is narrowly tailored to achieve a compelling governmental interest without restricting speech any more than is necessary for that purpose. The notion of "narrow tailoring" just does not apply to existing blocking technologies. The court decisively rejected the government's argument that requiring the software would be constitutional so long as it would block out a significant amount of unprotected material. Such an argument might suffice for a statute being consider under rationality review, but not under strict scrutiny. The government is likely to seek Supreme Court review on this one. The decision appears consistent with an earlier ruling by the U.S. District Court in Vermont, using the 1st Amendment to strike down a similar internet-directed law passed a few years ago by the Vermont state government. _American Booksellers Foundation for Free Expression v. Dean_, 2002 WL 1173669 (D. Vt. April 18, 2002). A.S.L. California Appeals Court Rejects Challenge to Gay Man's Will In a unanimous reversal of the trial court, the California 4th District Court of Appeal rejected a challenge to the last will and testament of Ernest William Henault in _Henault v. Castagna_, 2002 WL 1335602 (June 19, 2002) (not officially published). The court disagreed with the trial judge's conclusion that the main beneficiary under the will had exerted undue influence on the testator in order to get his house at Newport Beach. Ernest William Henault, who went by the name of "Eric," was an HIV+ gay male hairdresser with severe liver disease due to his alcoholism. When his doctor told him in May 1996 that he was terminal and he should get his affairs in order, he made a new will, leaving his Newport Beach house and half of his other assets to William Castagna, a longtime friend and his general handyman whose wife, Lori, had been a hairdressing client of Eric since about 1972. (A prior will had made a significant bequest to a former boyfriend.) Of the remaining half of the residuary estate, the will designated 10% to go to Jan Hension, a longtime female friend, and 40% to go to Henault's brother James, who lived in Massachusetts and who was the only one of Henault's siblings with whom he still maintained a somewhat cordial relationship, mainly through James's wife. Eric made clear that he didn't want the estate going to his other siblings, including the following in his homemade will: "I Ernest W. Henault being of sound mind leave any of the remaining members of my immediate family the sum of $1.00 (one dollar). Although I have always love [sic] my family, I have been deeply hurt by the way they have shunned me because I chose to live an alternative lifestyle. I wish them well." William Castagna drove Eric to a Staples store so he could use a computer to type up and print out the document. He then drove Eric to Castagna's house for a picnic, during which Henault executed the will in front of three witnesses (two non-beneficiaries and Lori Castagna). The day after the will was executed, Eric executed a durable power of attorney that Castagna had prepared, naming Castagna his attorney in fact, and shortly thereafter Eric also signed a health care power of attorney naming Castagna to make decisions. Eric's condition worsened, and for the last several months of his life he saw mainly the Castagnas and, during the last two weeks, a live-in caretaker who he had hired. After Eric passed away, Castagna notified his siblings who decided to file suit seeking to have the will excluded from probate. In the case before Orange County Superior Court James Jackman, a document surfaced purporting to be a contract signed in 1993 by Eric promising to leave his house to Castagna. A neutral handwriting expert retained at the court's direction testified that Eric's signature on this contract was a forgery. The Henault siblings charged that Castagna and his wife, who was also an informal caretaker for Eric, had exerted undue influence to get Eric to leave them his real property. Judge Jackman, skeptical about Castagna's veracity in light of the possibly forged 1993 contract, found that Castagna and his wife exerted undue influence on Eric, and barred the will from probate. Jackman appointed one of Henault's estranged brothers, Emile, to be administrator of the estate, to be divided equally between the siblings with nothing for the Castagnas. Castagna appealed. Writing for the court of appeals, Judge Fybel observed that where a will appears on its face to be procedural and substantively sound, there is a strong presumption in California in favor of enforcement of the will, with the burden on contestants to prove invalidity. In this case, the court of appeals found flaws with all of the trial court's findings. Most particularly, it found that a long-time friendship does not create a fiduciary relationship. It was not until the signing of the powers of attorney that a fiduciary relationship existed between Castagna and Henault. The court found no signs of actual undue influence, and that the purpose set out in the will seemed consistent with other testimony from witnesses about Eric's attitudes. Although much goes unspoken in this opinion, it appears to this writer that the court was weighing the correct way to go when the surviving relatives say that the beneficiary is just an opportunistic golddigger, and yet the same thing could be said about the siblings, in light of the statement in Henault's final will about their attitude toward him as a gay man and his desire not to leave them more than a token. Was Jackman's ruling an expression of homophobia, or just mistrust of the Castagnas taking advantage of a situation to the detriment of Eric's family? One will probably never know the true story. A.S.L. Autoerotic Asphyxiation Deaths Produce Varied Legal Results Concluding that death or injury resulting from autoerotic asphyxiation is accidental and not intentional, the Court of Special Appeals of Maryland delivered an opinion illuminating the conflicting answers given by prior courts in _Callaway v. Mamsi Life and Health Insurance Company_, 2002 WL 1377771 (June 26). Autoerotic asphyxiation, hanging, or "hypoxyphilia," the practice of denying oxygen or blood to the brain "up to, but not including, loss of consciousness" to increase the intensity of sexual gratification, is defined as a mental disorder in the Sexual Masochism category by the American Psychiatric Association's Diagnostic and Statistical Manual (4th ed.), which estimates that "two hypoxyphilia-caused deaths per million are detected and reported each year" in the U.S. (Suburban legend has it that parents posthumously rearrange such scenes so their teenagers' deaths are reported as suicides.) As a heterosexual male, David Callaway was typical of adult asphyxiators. Mamsi Life and Health Insurance Company (Mamsi) denied payment of death benefits to Callaway's beneficiaries, arguing that he died from intentional self-injury rather than an accident. The terms "accident" and "injury" were not defined in the insurance contract. The parties argued fatal drug- overdose and drunk driving cases, from which the court found that an injury caused by an intentional act is not precluded from being caused by an accident if something unforeseen produces the injury, and that this question should be resolved from the insured's perspective. The court uncovered eight federal (ERISA) cases and seven state law disputes over life insurance proceeds from autoerotic asphyxiation deaths since 1976. In four of eight federal cases and three of seven state cases plaintiffs recovered. Writing for the court, Judge Hollander reasoned that because death is a statistically rare result, the fatality was not reasonably foreseeable to the Insured, and that the "fleeting hypoxia" intended to result from such asphyxiation is not an "injury" within the meaning of the insurance policy. The court noted that acceptance of the insurer's arguments could create a "slippery slope" on which sky divers', mountain climbers', etc. accidental death claims could be inappropriately denied. _Mark Major_ Reverse Discrimination Claim Fails Against Gay Men's Health Crisis Gay Men's Health Crisis (GMHC), the world's first AIDS services organization, successfully fended off a sexual orientation discrimination charge by a heterosexual former employee in _Berner v. Gay Men's Health Crisis_, 2002 WL 1164422 (N.Y.App. Div., 1st Dept., June 4, 2002). A unanimous ruling by a four-judge panel rejected Reina Berner's allegation that she was discharged as a coordinator of counseling services because she is not a lesbian. The opinion affirmed a January 25 decision by Manhattan Supreme Court Justice Jane Solomon, who had granted GMHC's motion to dismiss the complaint filed under New York City's sexual orientation discrimination law on the somewhat peculiar ground that Berner had "failed to adduce evidence sufficient to show, prima facie, that her supervisor, the sole actor accused of discrimination, knew that she is heterosexual." According to the terse appellate memorandum decision, Berner had no prior experience dealing with persons with AIDS when she was hired. For more than a year before her discharge, her supervisor had complained about her performance, expressing concern about her "lack of understanding of AIDS-related issues." At the time of her discharge, Berner alleges that her supervisor said that she "lacked passion for the job because 'it wasn't part of [her] community.'" She seemed to believe that this isolated comment was the smoking gun for her case, arguing that the clear implication was (as summarized by the court) that because "the heterosexual community" does not suffer from the AIDS epidemic, "individual heterosexuals such as plaintiff were not up to the job." "This interpretation of the supervisor's comment is speculative and not supported by the record," wrote the court, which observed that the clients she was hired to serve were "not just homosexuals." Trial judge Solomon had interpreted this as being a comment on Berner's shortcomings as an employee. Berner had also offered an affidavit from a purported expert witness opining that her discharge was probably motivated by discrimination, but the appellate court commented that this was "of little probative value" in a case that would require direct evidence of discriminatory intent. "In any event," commented the court, "the reliability of the expert's data with respect to the sexual orientation of defendant's employees was not established." The expert presumably assumed, based on the organization's name and origins, that the staff is overwhelmingly gay. A.S.L. Botched Jury Instruction Leads to Retrial of Slayer of Gay Man In an unpublished ruling, the Florida 3rd District Court of Appeals ordered a new trial for Kevaris Lamont Pollock, who was convicted of manslaughter in the killing of Larry Sheppard. Pollock claimed self- defense. _Pollock v. State of Florida_, 2002 WL 1284671 (Fla.App. 3 Dist., June 12, 2002.) The Court of Appeals, in an opinion by Judge Ramirez, found that the jury had been "misled" by the closing statement of the prosecution and the instructions from the judge. In 1997, Pollock who was then seventeen years old and Sheppard, who was then twenty-four, became friends. Sheppard gave Pollock gifts for his newborn daughter and for himself. In 1998, Pollock found out that Sheppard was gay and told him that he "did not share that lifestyle." Sheppard continued to give Pollock gifts for his daughter. Later in 1998, Sheppard invited Pollock to the movies and while driving him home asked Pollock what he was going to get him for Valentine's Day. While they talked, Sheppard rubbed Pollock's leg and Pollock pushed his hand away and told him he was not interested. Pollock testified that when they got to his home and he tried to leave, Sheppard locked the car doors and again grabbed Pollock's leg. Pollock resisted, but Sheppard pushed his hand inside Pollock's pants. Pollock said that he then took Sheppard's gun out of the glove compartment and shot him six times. Prosecutors argued that Pollock was trying to rob Sheppard and charged him with first degree murder, but he was convicted of manslaughter. Pollock argued that he shot Sheppard "to prevent an imminent sexual battery upon himself." Judge Ramirez wrote that the prosecutor misstated the law five times during his closing argument by arguing to the jury that Pollock was not in imminent danger of death or great bodily harm from an attempted sexual battery. "This repeated argument emphasized and capitalized upon the erroneous jury instructions given by the court." The trial judge instructed the jury that "a person is justified in using force likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent... great bodily harm to himself or another and the attempt to commit sexual battery upon himself or another." The correct instructions, according to the Court of Appeals, should have been "or" rather than "and." _Daniel R Schaffer_ H2 = 8th Circuit Holds Sharing Restroom With Transgendered Colleague is Not Hostile Environment Sexual Harassment A three-member panel of the U.S. Court of Appeals, 8th Circuit, affirmed a summary judgment ruling against Carla Cruzan, a public school teacher in Minnesota, who claimed that a hostile work environment was created when Debra Davis, a male to female transgendered person, was allowed to use the women's faculty bathroom. Cruzan v. Special School District et al. 2002 WL 1339108 (June 20, 2002). The school district authorized Davis to use the women's restroom after its counsel advised of its obligations under the state human rights law, which covers "gender identity." David Nielsen ha worked since 1969 at the School, and in early 1998 told administrators that she would "transition" and change her name to Debra Davis. The school worked with her, legal counsel, the parent teacher association, students, parents, and psychologists on her transition at work. Cruzan had asked whether Davis would be allowed to use the women's faculty bathroom and was told that "other arrangements would be made" for Davis. After the school's legal counsel cited the Minnesota Human Rights Act (MHRA), Davis was allowed to use the women's faculty bathroom. The MHRA prohibits discrimination on the basis of a person's "self- image or identity not traditionally associated with one's biological maleness or femaleness." After Davis had used the women's faculty bathroom for a few months, Cruzan saw her using a privacy stall. Cruzan immediately went to the principal and complained about Davis being in the bathroom. The principal, who was in the hallway with students, asked Cruzan to either wait in his office or to make an appointment to discuss the matter. Cruzan refused and did not raise the issue with the principal again. But she filed a complaint with the Minnesota Department of Human Rights (MDHR), which dismissed it, finding that the MHRA "neither requires nor prohibits restroom designation according to self-image of gender or according to biological sex." Cruzan subsequently filed a Title VII action, asserting religious discrimination, sex discrimination and a hostile work environment. Davis retired in 2001. The district court granted summary judgement for the school, without deciding Cruzan's religious discrimination claim, finding that she failed to inform the school district of her religious beliefs and did not suffer an adverse employment action because of it. On appeal the 8th Circuit panel found, _per curiam_, that Cruzan "expressed general disapproval of Davis's transition and the school district's decision to allow Davis to use the women's faculty bathroom," but did not give a reason other than "personal privacy." Cruzan argued that her filing with the MDHR met the notice requirement. The panel rejected this argument, noting that "it is undisputed that Davis's use of the female staff bathroom had no effect on Cruzan's title, salary, or benefits." Cruzan avoided sharing a bathroom with Davis by using the students' bathroom. The panel also rejected Cruzan's claim of "an abuse of the summary judgment procedure" by having a male judge to decide what a "reasonable women" would find a "working environment that is abusive. . ." The American Civil Liberties Union; OutFront Minnesota; Gay, Lesbian and Straight Education Network of Minnesota; Harry Benjamin International Gender Dysphoria Association; and the National Center for Lesbian Rights filed amicus briefs. _Daniel R Schaffer_ California Supreme Court Custody Ruling May Benefit Gay Parents In a unanimous ruling that may potentially prove useful in custody petitions brought by non-biological parents in Uniform Parentage Act states, the California Supreme Court held in _In re Nicholas H._, 2002 WL 1225026 (June 6, 2002), that a man who had been the domestic partner of a boy's mother when the child was born, but who was not related to the boy, was entitled to custody in a situation where the biological father of the boy was not in the picture (and indeed had never been acknowledged as a "father"). Although the unusual facts of the case may make it _sui generis_ and thus less than dispositive in gay-related custody disputes, nonetheless the decision recognizes concepts of _de facto_ parental status that might prove transferable in appropriate cases. As summarized by Justice Brown, writing for the court: "When Kimberly was pregnant with Nicholas, she moved in with Thomas. Thomas is not Nicholas's biological father, as he admits, but both Kimberly and Thomas wanted Thomas to act as a father to Nicholas, so Thomas participated in Nicholas's birth, was listed on Nicholas's birth certificate as his father, and provided a home for Kimberly and Nicholas for several years. Thomas has been the constant in Nicholas's life. . . Thomas has lived with Nicholas for long periods of time, he has provided Nicholas with significant financial support over the years, and he has consistently referred to and treated Nicholas as his son. 'In addition [according to the findings of the Court of Appeal], there is undisputed evidence that Nicholas has a strong emotional bond with Thomas and that Thomas it he only father Nicholas has ever known.'" On the other hand, Kimberly has not been a particularly effective mother, as the record supports Thomas's allegations of "Kimberly's drug use, transiency, lack of gainful employment and violence towards others." The juvenile court had determined that Nicholas had to be removed from her custody, at a time when she and the child were not living with Thomas. Nicholas had testified that he preferred to live with Thomas, complaining that his mother "hits and slaps him" and smokes marijuana." The juvenile court judge expressed concern about her "mental and emotional health." The juvenile court decided to award custody to Thomas, but the Court of Appeal felt that it was stuck due to California precedents suggesting that a person who was not biologically related or legally related through adoption to a child was not entitled to be awarded custody over the objection of the child's biological parent, and Kimberly, who had not specifically been found to be an unfit parent, had the right to veto this. The Supreme Court disagreed with this interpretation of the statute and precedents. Sec. 7611(d) of California's version of the Uniform Parentage Act provides, according to Justice Brown, that "A man who receives a child into his home and openly holds the child out as his natural child is presumed to be the natural father of the child." The court of appeal had decided that because both Kimberly and Thomas testified that he was not the natural father of Nicholas, the presumption was rebutted in his case, and as a result he would not be entitled to custody, even though, as the juvenile court had observed, this would mean that Nicholas was essentially fatherless, and in circumstances where Kimberly could not provide a proper home, would have to be placed in the custody of the state or put into foster care. (Actually, in this case it appears that Thomas was trying to rescue Nicholas from state custody.) The Supreme Court took a somewhat different view of the cited section and its interaction with other sections of the Family Code. Pointing out that in this case nobody has been proven to be the natural father of Nicholas, since the man who Kimberly claims impregnated her is not available or interested in asserting parental rights, Brown asserted "that a man does not lose his statute as a presumed father by admitting he is not the biological father," reaching this conclusion by relying on sec. 7612(b), which provides: "If two or more presumptions arise under section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls." "As a matter of statutory construction," wrote Brown, "if the Legislature had intended that a man who is not a biological father cannot be presumed father under section 7611, it would not have provided for such weighing, for among two competing claims for presumed father status under section 7611, there can be only one biological father." Brown also observed that the legislature does not require blood test evidence to be considered in determining issues of paternity. "It is unlikely the Legislature would - without explicitly so stating - adopt a contrary rule that blood test evidence (or an admission) must defeat the claim of a person who claims presumed father status under section 7611(d)." The balance of the opinion is devoted to reviewing in detail all the relevant earlier court of appeal decisions, distinguishing them, disapproving of one of them, and holding back from taking positions on questions not necessarily presented in this case, such as "what constitutional rights are enjoyed by a man who is not a child's biological father but who is seeking to receive a child into his home and to achieve presumed father status." The upshot of the opinion is that Thomas can be considered a presumed father for purposes of this case, and may ultimately be awarded custody of Nicholas. The potential implications for gay parents are both obvious and uncertain. While the opinion accepts the proposition that things other than biological or legal ties may be significant in determining parental status, on the other hand it seems to rest entirely on a close reading of legislative provisions dealing specifically with fathers, and most of the litigation involving same-sex partner custody disputes concern women, not men. Whether the court would transfer the general concept to a case in which a former lesbian partner is seeking custody, or just visitation, with a child who remains in the primary custody of her biological mother - especially a biological mother who does not exhibit the drawbacks of Kimberly - is still an open question. Nowhere in its decision does the court specifically refer to California case law involving same-sex partner custody or visitation disputes. However, in an article in the _Los Angeles Times_ on June 7 discussing the case, Deborah Wald, an attorney at the National Center for Lesbian Rights, stated that the decision "clearly establishes that people who know from day one that they aren't biological parents can through their conduct become parents. And that is huge. . . It is wonderful that courts are looking beyond strict, formulaic definitions of what constitutes a parent and are looking instead at who is important to the children." Thomas's attorney, Frank H. Free, hailed the "recognition by the state Supreme Court that biology is not the most important factor in determining paternity." A.S.L. Civil Litigation Notes _U.S. District Court - California_ - One of the major 9/11 issues for the LGBT community is whether surviving same- sex partners of victims have any legal claims that they could bring against the airlines if the federal compensation fund is unavailable to them. A recent decision in a case involving opposite-sex domestic partners provides an unfortunate answer. In _Beck v. Alaska Air Group_, 2002 WL 1162387 (U.S.Dist.Ct., N.D. Cal., May 24, 2002), District Judge Breyer faced a motion to dismiss for failure to state a claim, where the plaintiff is allegedly the surviving opposite-sex domestic partner of a passenger killed in an airplane crash. The question whether Pamela Beck, the surviving partner, could sue turned on whether she is an appropriate party under federal maritime law, which applies to air crashes. In 1970, the U.S. Supreme Court had ruled that the maritime jurisdiction includes wrongful death claims. In the absence of a statute, the federal courts look to both the Death on the High Seas Act and to state wrongful death statutes to determine who may sue. Judge Breyer held that the personal representative of an estate can bring a wrongful death action for the estate, but only a legal wife, husband, parent, child or dependent relative could personally bring a wrongful death action. He granted the motion, finding that Beck was not the estate representative and was not within the specified degrees of legal relationship to the deceased. _Federal - Pennsylvania_ -- In _Sterling v. Borough of Minersville_, 232 F.3d 190 (3rd Cir. 2000), the court allowed a constitutional suit to go forward against a police officer who allegedly threatened to "out" a teenage boy to his grandfather, after which the boy, told another boy who was present that he would commit suicide, and he subsequently did so. The case went to a jury trial, but the jury ruled in favor of the defendants. Now, U.S. Magistrate Arnold C. Rapoport has granted a new trial in _Sterling v. Willinsky_, having found upon reviewing the record that the jury's decision was against the weight of the evidence. Rapoport found that the testimony of the plaintiff's key witnesses was corroborated by several credible and uninterested witnesses, while the defendant's story was back up only by one interested witness who did not actually here the conversation between the police officer and the boy who later committed suicide. Rapoport quoted the following language from an earlier opinion in justification of his ruling: "A reasonable jury could not have come up with a verdict for defendants on all of the claims. While it is unclear if the jury was guided by passion and prejudice or a misunderstanding of their duties, having had the opportunity to observe the demeanor of the witnesses, the court is certain that the verdict for the defendants on all claims was contrary to the weight of the evidence and allowing the verdict to stand would permit a miscarriage of justice." _Allentown Morning Call_, June 26; _Legal Intelligencer_, June 27. _U.S. Bankruptcy Court - Minnesota_ - A gay man filed for personal bankruptcy at a time when he still owed a significant amount of money on a loan from his former domestic partner's mother. The mother had made the loan in order to assist the man to pay off a back-tax assessment by the government, so that the man and her son would be able to get a mortgage to buy a house. Several years later, the relationship between the man and her son ended, the son moved out of the house, the man sold the house, and the son sued the man for his share of the asset; that suit was resolved in a settlement agreement. In _Rasmussen v. Unruh_, 2002 WL 1072059 (Bankr.D.Minn. May 8, 2002), Bankruptcy Judge O'Brien granted Ione Rasmussen's motion as a creditor to reject Richard Unruh's bankruptcy petition on grounds that it had materially misstated his assets and debts. As a result, her loan to him will not be dischargeable in bankruptcy. In defending the action, Unruh tried to argue that the loan had been a gift to him and her son in order to make it possible for them to buy the house, or that his liability on the loan should be considered settled due to his asset settlement with her son, Brian, his former domestic partner. Judge O'Brien rejected both these contentions, and commented that since he was denying Unruh's bankruptcy petition, the loan to Mrs. Rasmussen would be permanently render non-dischargeable in bankruptcy. _Florida_ - Michael Kantaras, the transgendered father who is embroiled in a custody dispute over his adopted children with his ex-wife, was awarded temporary custody by Senior Pasco-Pinellas Circuit Judge Gerard O'Brien due to Linda Kantaras's failure to abide by the visitation order in effect in the case until a final decision can be made on the merits. Judge O'Brien found that Linda violated a term of the order that required her to refrain from using her ex- husband's transsexuality to turn the children against him. Michael will not have primary custody until the case is decided. A three-week trial was held, ending in February. Linda's attorneys claimed that when the couple wed she did not know that Michael had formerly been a woman, and argued that the adoptions by Michael of children born to Linda should be invalidated based on Florida's law against gay adoptions. The case has garnered national media attention. _Tampa Tribune_, June 5. _New Jersey_ - The New Jersey Supreme Court, unanimously reversing an appellate division decision, held that a man was entitled to pursue his contract and tort claims against a group of Catholic priests and the Archdiocese of Camden, based on allegations of same-sex harassment while the plaintiff was in training for the priesthood. _McKelvey v. Pierce_, 2002 WL 1466823 (July 10, 2002). The trial and intermediate appellate courts had granted defendants' motion to dismiss, finding that allowing the litigation to proceed would violate the Religion Clauses of the 1st Amendment by excessive entanglement of the judicial process in the internal personnel policies of the church. Rejecting this argument in an opinion for the court, Justice Long maintained that the church is not above the law, and is responsible for torts and breaches of contract. In this case, the man claimed that so many self-identified gay priests came on to him and pressured him to join in homosexual activity that he had to quit the program. The response of the Archdiocese to his leaving had been to send him a bill for all the educational expenses it had incurred for his training. (Shades of the U.S. military, which customarily sent a bill for tuition to gay ROTC members who were kicked out of the service until recent changes in policy.) The supreme court held that it was premature to grant a motion to dismiss on 1st Amendment grounds. The defendants should be required to answer the complaint and submit to discovery, and issues of excessive entanglement could be dealt with on an issue-by-issue basis as the litigation proceeded. _Idaho_ -- The _Idaho Statesman_ reported on July 11 that Bonneville County Magistrate Mark Riddoch ruled that a gay father may not have visitation with his two school-age children as long as he is living with a gay partner. Theron McGriff and his partner recently bought a house together. In order to allow McGriff to keep seeing his children, his partner has moved into a mobile home parked in front of the house. Riddoch ruled that Shawn McGriff should be awarded primary legal and physical custody, and that Theron could only exercise visitation provided "Father is not residing in the same house with his male partner." Theron is contemplating an appeal, but Shawn's attorney, Marie Tyler, is confident that the Idaho Supreme Court, which has never previously ruled in a case involving a gay parent, would follow the lead of North Dakota, Ohio and Michigan, where courts have placed such restrictions on gay parents' visitation rights. _Kentucky_ -- The _Lexington Herald Leader_ reported on July 4 that Franklin Circuit Judge William Graham had issued an order against E. John Reinhold, chief executive of Medi-Share, a "Biblical" alternative health insurance company, forbidding the company from doing business in Kentucky. Medi-Share is a self-described "cost-sharing program" open only to Christians, and it specifically refuses to provide services to those with "unbiblical lifestyles," including, inter alia, gays and lesbians. (Somebody at Medi-Share is not reading their Bible carefully enough!) A spokesperson for the company said that it had hundreds of Kentucky families among its members. The state insurance department, which sought the court order, maintained that this was an unlicenced insurance company that was violating fair practice policies. _Federal - New York_ -- On June 27, a federal district court jury in Brooklyn found that a Toys 'R' Us store had unlawfully allowed harassment and discrimination against three transsexual customers, in violation of public accommodations and civil rights laws, but made token damage awards of only $1 to each of the plaintiffs. Their lawyer, LeGaL member Tom Shanahan, called the verdict a "moral victory in a landmark case for the gay and lesbian and transsexual community." Ironically, the defendant had sensed the direction in which things were heading and had offered each of the plaintiffs a $100 gift certificate in an attempt to settle the case. They were seeking damages of $300,000 each, claiming that they were menaced by store employees and threatened with baseball bats. The trial was held before District Judge Charles Sifton, who was reportedly angered when the defendant's attorney stated during his opening that it was unsurprising that the plaintiffs had attracted "comments" in light of their appearance. _New York Daily News_, June 28; _Newsday_, June 28. _Massachusetts_ -- The Massachusetts Appeals Court for Middlesex County upheld a conviction for second- degree murder and kidnapping of Charles Jaynes, a pedophile whose attempt to interest a 10-year-old boy in having sex ended tragically in the boy's death. _Commonwealth v. Jaynes_, 2002 WL 1340242 (June 21, 2002). One ground for appeal raised by Jaynes was that the trial court closed the courtroom during voir dire at the request of some of the potential jurors, due to questioning about juror attitudes towards and experiences concerning homosexuality. The appeals court found that while the defendant is entitled to an open and public trial, his rights were not violated by the limited closure during voir dire, where the trial court had followed a procedure that has been approved by the U.S. Supreme Court in _Press-Enterprise Co. v. Superior Ct. of California_, 464 U.S. 501 (1984), under which the court informs prospective jurors in advance of any sensitive questioning that is expected to occur and offers to close voir dire so that only counsel and parties are present during questioning. The court found that in this case "the interests of individual members of the venire in maintaining their privacy while providing the court and the parties extremely sensitive information about their beliefs and life experiences was an overriding one," and that the trial court struck the correct balance. Also, notably, Jaynes' attorney did not object at the time, and stated no objection to the ultimate selection of jurors. _Federal -- Minnesota_ -- A county police officer who allegedly twice solicited a gay teenager to give him a "blow job" in his squad car may be liable to the youth for sexual abuse, but not in federal court, ruled U.S. District Judge Manson in _Kemmer v. Beltrami County/Beltrami County Sheriff's Dept._, 2002 WL 1348007 (D. Minn., June 18, 2002). Judge Manson aptly describes the factual allegations in this case as "seemingly tailored more for a made-for- TV movie, than litigation." The whole story is too lengthy to recount here. It suffices to say that Jerry Kemmer, a gay man born in 1979, was apparently a police groupie who liked to dress up in quasi-police outfits, hang around with cops, and even impersonate a police officer. He has accumulated a bunch of convictions, including for such impersonation, for sodomy, for driving with a suspended license, and for writing worthless checks. He claimed that on several occasions Deputy Ernie Beitel invited him into his squad car and offered to let him off from one offense or another if he would perform oral sex on Beitel, which he did. Things came to a head when Kemmer, by now at least 20 but under the age for drinking in Minnesota, was out drinking and driving erratically and ended up leading police a 60-mile high-speed chase, that ended in his being roughed up a bit by police officers when he was arrested. Kemmer filed suit, which the police removed to federal court and moved to get rid of by summary judgment. Many of the claims had been withdrawn by stipulation, leaving just a few for resolution, and the court ruled against Kemmer on all his federal claims. Judge Manson did find there was a potential viable claim against Beitel for sexual abuse, since Kemmer was a minor under state law for at least two of the "blow job" allegations, but that the court would not exercise discretion to deal with the state law claim in the absence of any viable federal claim, and remanded to the state district court from which the case had been removed by the defendants. This one is fun to read, and would make a neat little TV movie, as the court suggested. Manson (or a clerk in chambers) knows how to tell a story in prose. . . _New York_ - The N.Y. Appellate Division, 1st Dept., revived a state law antitrust battle between two local gay publications with a unanimous decision in _Two Queens, Inc. v. Scoza_, 2002 WL 1424583, 2002 N.Y. Slip Op. 0552, issued on July 2. The battle is between the popular _HX_ and _Next_ magazines. HX included a non-competition clause in its employment agreements. When Ronald Scoza left to work for Next, HX filed suit to enforce the clause. Next counterclaimed with an antitrust charge: that HX was giving out free or discounted advertising with the proviso that advertisers eschew Next. HX persuaded trial judge Karla Moscowitz to dismiss the counterclaim, arguing that Next's circulation had continued to grow and that because most of HX's ad revenue came from national advertisers, the antitrust claim was preempted by federal law. In unanimously reversing, the appellate panel pointed out that the preemption issue turns on whether the main impact of the alleged anti-competitive practice was local or national, an issue that was sharply disputed and could not be resolved on a pre-discovery motion to dismiss. And the local NYC gay media wars continue. _Washington State_ - A settlement has been reached in the litigation between Frank Vasquez and the surviving family members of Robert Schwerzler, whom Vasquez contended was his domestic partner. Upon Schwerzler's death intestate, his legal heirs sought to remove Vasquez from the house in which the men had lived together for several decades. The "family" contended that the men were merely roommates and that Schwerzler was not gay. A trial judge had granted summary judgment to Vasquez, using a state common law theory of meretricious relationship, but was reversed by the court of appeals, which had ruled that this doctrine could not be used for same-sex couples, since it was intended to apply to quasi-marital relationships between persons of the opposite sex. The state supreme court reversed that decision last November, in _Vasquez v. Hawthorne_, 33 P.3d 735 (Wash. 2001), finding that a disposition on motion had been improper because there were contested factual issues about the nature of the men's relationship. The case having been thrown back into the trial court, the parties settled down to negotiate something that would keep Vasquez, elderly, ailing and illiterate, in the house. Under the settlement, he gets to stay for the rest of his life, but ownership of the house goes to the legal heirs, who will receive a payment from Vasquez's law firm. The Schwerzler family will pay to maintain the structure and take care of property taxes, and Vasquez will assume responsibility for interior maintenance, windows and groundskeeping. Trial court judge Vicki Hogan approved the settlement on June 26. Both sides proclaimed satisfaction, Schwerzler's heirs stating that they hadn't wanted to make Vasquez homeless, but wanted to protect their property interests in the house. _Tacoma News Tribune_, July 10. A.S.L. Criminal Litigation Notes _U.S. Supreme Court_ - On June 3 the Supreme Court denied certiorari in _Cockrell v. Burdine_, 2002 WL 1159629, a last-ditch attempt by the state of Texas to executive Calvin Burdine, a gay prisoner whose court-appointed attorney slept through significant portions of his trial, an occurrence which eventually led after may years of litigation to a decision by the U.S. Court of Appeals for the 5th Circuit to grant a writ of habeas corpus on grounds that Burdine's right to counsel during his murder trial was violated. See _Burdine v. Johnson_, 262 F.3d 336 (5th Cir. 2001). While Burdine's counsel slept, the prosecutor argued to the court that sentencing a gay murderer to life in prison would not be any punishment at all, leading to a fair implication that the prosecution, at least, meant to argue that gays convicted of murder should be put to death, as contrasted to some other murder defendants, specifically because of their sexual orientation. Now, the state will have to retry Mr. Burdine if they want to execute him. Considering how much time has past since the underlying crime, effective retrial may be an impossibility. _California_ - The California Court of Appeals made history in _People v. Garcia_, 77 Cal. App. 4th 1269 (2000) (not officially published), when it held that prosecutors could not excuse jurors solely on the basis of their sexual orientation, a ruling that resonated so strongly that California's legislature went on to codify it. But what of Cano Garcia, the criminal defendant whose burglary conviction was vacated in that opinion as a consequence of the trial court's rejection of Garcia's objection to the prosecutor's excusing two lesbian venire members? The case was remanded to give the prosecutor an opportunity to explain his grounds for excluding the two. On June 24, in _People v. Garcia_, 2002 WL 1365643 (Cal. App., 4th Dist.), the court affirmed Orange County Superior Court Judge Corey S. Cramin's ruling that the prosecutor's explanations were sufficient to have avoided the taint of a discriminatory excusal. In effect, the prosecutor said he didn't want a graduate student on the jury, because graduate studies tend to over-intellectualize the matters presented for decision, and he didn't want to the other woman because she seemed to be too friendly with the graduate student! The trial court found that this had nothing to do with the women's sexual orientation and, writing for the Court of Appeal, Judge Bedsworth agreed. So Garcia's conviction stands. _Colorado_ - Shaun Murphy was sentenced to 40 years in prison on June 3 for the murder of Fred Martinez, a 19- year-old "two spirit"Native American (according to some of his friends). Martinez's mother and others contended that Murphy killed the boy because of Fred's sexuality, which combined elements of transgender and homosexuality. Murphy had pled guilty to second-degree murder, and contended that he was intoxicated and confused at the time of the crime, which he characterized as an accident. Martinez's body was found in a desert canyon, his skull smashed. The district attorney presented evidence that Murphy had a history of violent assaults, and Montezuma County District Judge Sharon Hansen, who passed sentence, commented to Murphy that she was most disturbed by his leaving the scene and not even calling anonymously for medical help for Martinez, knowing that he was hurt. Murphy's mother, a lesbian, and his aunt, a transsexual, both denied the Murphy was prejudiced or would have killed Martinez because of his sexuality. They contended that he fought Martinez in self-defense. _Denver Post_, June 4. _District of Columbia_ - Joseph Mesa, a former Gallaudet University student convicted of murdering fellow-students Eric Plunkett and Benjamin Varner, received 6 concurrent life terms without parole from D.C. Superior Court Judge Robert Richter on July 10. _Associated Press_ report. In the case of Plunkett, Mesa's defense was insanity and homosexual panic, allegedly brought on by an unwanted homosexual advance. The jury apparently gave little credence to this, in light of the viciousness of the crime against Plunkett, who was kicked repeatedly in the head and bludgeoned with a desk chair. _Nebraska_ -- What can the jury be thinking as it hears testimony in the trial of Roger Van, a 55-year-old florist charged in a small city Nebraska court with the sexual torture and imprisonment of a Houston, Texas, man. Van's defense at the trial, which was ongoing as we went to press, was that the victim consented, in advance, to everything that was done to him. Van has a dungeon set up in the basement of his florist shop, where he practices the arts of S&M sex with consenting partners. He claims that through a series of hundreds of emails over a period of three months, he and the "victim" had reached an agreement for an extended S&M scene, and that the victim, upon arrival, had insisted on no "safe word" to end the scene. In his testimony, the victim indicated that he had been depressed and was seeking to punish himself for perceived failings when he agreed to this activity, and after a few days of being tied down, whipped, beaten, branded and sexually used, had come to regret his decision and wanted to end the experience, but that Van refused, holding him "captive" for nine days. Van's partner, Jerry Marshall, who has pled guilty to a misdemeanor charge for his participation, helped the victim to escape. Still to come was testimony by a psychologist about S&M practices, keying in on the issue of whether valid consent can exist in such arrangements. _Omaha World-Herald_, July 9 & 10. For an academic consideration of the issues raised by this case, see the article by Monica Pa, cited below. _Texas_ - Legal realism in Fort Worth! In _In the Matter of C.J.H._, 2002 WL 1291855 (Tex. Ct. App., Ft. Worth, June 13, 2002), the court was considering the appeal of a sentence imposed on a gay teenager for sexually molesting his mother's boyfriend's six-year-old boy. One possibility would have been to send young C.J.H. to a year of "boot camp" prison, but C.J.H. reacted in terror to that proposal. According to the opinion of the court of appeals by Justice Dauphinot, "Appellant did not want to go to boot camp and that if he did go to boot camp, he was in danger of 'getting into conflicts, fights, and being picked on for his sexual orientation or ... being exploited sexually for oral and anal sex.' A letter, apparently from a boot camp teacher, indicated that the current boot camp inmates knew about Appellant's sexual orientation and planned to hurt him when he arrived. A letter from the boot camp case manager to the juvenile probation officer rejected Appellant as a candidate for the camp 'due to safety issues.'" In other words, although criminal justice authorities routinely deny that sexual assault is a significant problem in their facilities, in this instance it couldn't be denied and the whole sordid mess goes right into the court's opinion; these prison authorities lack enough control over order within their facilities to prevent sexual assaults of gay inmates. Ultimately, the court sentenced C.J.H. to go into the custody of the Texas Youth Commission for an indefinite period to participate in the sex offender program; upon successful completion of the program, he may be discharged back to his mother's custody. A.S.L. Legislative Notes _Federal_ - For the first time, the federal government has enacted a new benefit program that will have the effect in some cases of providing benefits to the same-sex partners of persons covered by the law. In the "Mychal Judge Police and fire Chaplains Public Safety Officers' Benefit Act of 2001" Congress widens the range of permitted beneficiaries under a program that pays compensation to public safety officers who are killed in the line of duty. Where previously, benefits were limited to surviving spouses or children of police or firefighters, the new law widens the scope of coverage of chaplains, and broadens the scope of beneficiaries, in cases where a public safety officer is not survived by a wife or children, to whoever was named as a beneficiary in the individuals' most recent life insurance policy. According to an Associated Press report on June 24 reporting that President George W. Bush had signed the measure into law, some Republicans had opposed the bill because designated beneficiaries may include unmarried partners (including same-sex partners) of public safety officers and chaplains, but in the end it was passed without formal opposition in either chamber of Congress. The measure was adopted as an amendment to the Omnibus Crime Control and Safe Streets Act of 1968, and will be codified at 42 U.S.C. 3796(a) and (b). The measure takes effect retroactively to September 11, 2001, and was inspired by the heroism of Father Mychal Judge, the Catholic chaplain for the N.Y.C. Fire Department who died during the World Trade Center attack and who was known by many in New York to be gay. _Federal_ - Our report in the last issue on the proposed U.S. Marriage Amendment to the Constitution omitted part of the language of the Amendment. The full test is as follows: "Marriage in the United States shall consist only of the union of a man and woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." This amendment would arguably have blocked the Vermont Supreme Court's decision in _Baker v. State of Vermont_, 744 A.2d 864 (Vt. Supreme Ct. 1999), which construed the Vermont constitution's common benefits provision to require that same-sex couples be afforded all the legal rights and responsibilities that are provided for opposite-sex couples under the state's marriage laws. Whether it would also invalidate the resulting Vermont Civil Union law would depend how broadly it would be construed. Political observers gave little chance of it surviving the ratification process, however. _Federal_ -- Senator Mark Dayton, a Minnesota Democratic, introduced a bill in the Senate on June 27 to extend health, retirement and life insurance benefits to same-sex partners of federal employees. Rep. Barney Frank, a Massachusetts Democrat, introduced a companion bill in the House. Frank said that he expects "total opposition" from the Bush Administration to this bill, even though Bush had just signed a measure to extend some benefits to surviving same-sex partners of public safety officers who dies in the 9/11 terrorist attacks at the World Trade Center and the Pentagon. Frank said Bush "had to sign that bill because the firefighters were pushing hard for it." Minnesota's other senator, Paul Wellstone, is a co-sponsor of the bill. _Star Tribune_, June 28. _District of Columbia_ -- On July 8, the District of Columbia finally launched its domestic partnership registration program, ten years after the city council first voted to set it up. The delay was due to Congress, which included in every subsequent D.C. appropriations bill a ban on implementation of the program. Finally, this year, Congress desisted and President Bush signed an appropriations measure without the ban. Mayor Anthony Williams noted that the District now joins eight states, 132 municipalities, 168 Fortune 500 companies, 4,010 private employers, non- profits and unions, and 167 colleges and universities in providing domestic partnership benefits for employees. Registration under the law also provides some other benefits for non-employees of the district in their dealings with the district government. _Washington Post_, July 9. _Colorado_ -- In a surprise turnabout, the University of Colorado regents approved health care benefits for same-sex partners and dependents of gay employees on a 5-4 vote on June 27. The regents had voted last year to add sexual orientation to the University's non-discrimination policy, but had balked at going all the way to benefits entitlements. The policy will take effect in November, when university officials predicted that about ten people will enroll. (Either it's a very small university, or these officials don't know their staff very well.) _Denver Post_, June 28. _Florida_ -- The Sarasota City Commission voted unanimously on July 1 to let voters decide whether to amend the city's charter to add a non-discrimination provision that would cover race, religion, sexual orientation "and other criteria" in employment, housing, and public accommodations, according to a report in the July 2 issue of the _Sarasota Herald-Tribune_. Specific language was to be proposed to the Commission at its July 15 meeting, for inclusion on the ballot in November. There is an Aug. 26 deadline for approval of specific charter-altering language. * * * On June 20, Orlando's Human Relations Board approved a recommendation to the city council to pass an ordinance prohibiting discrimination in employment, housing and public accommodations on account of sexual orientation. City law already bans discrimination on the basis of race, religion, color, national origin, sex, age, disability and marital status. Some local religious leaders vowed to oppose the proposal. _Bradenton Herald_, June 21. _Illinois_ - HB 101, which would prohibit discrimination on the basis of sexual orientation in employment, housing, public accommodations and credit again went down to defeat in the Illinois legislature. Although the Democratic- controlled House passed the bill on a 60-55 vote last year, it was bottled up in the Republican-controlled Senate. State Senator John Cullerton, a Chicago Democratic who is the lead sponsor in that chamber, never called the bill up for a committee hearing because of his perception that it would be rejected in the Executive Committee and never achieve a floor vote. Hopes are pinned on the fall elections. _St. Louis Post-Dispatch_, June 2. _Portland, Maine_ - The City Council voted 6-3 to enforce its ordinance requiring city contractors to provide same- sex domestic partnership benefits against the Salvation Army, which sought an exemption on religious grounds. Under terms of the resolution passed by the council, the Salvation Army will lose funding for the Meals on Wheels program and the senior center it operates. Then, in an 8-1 vote, the Council approved a proposal to repeal a part of the ordinance exempting some grant-receiving organizations from compliance, responding to a new state law that requires health insurance companies to offer domestic partnership benefits if they offer benefits to married couples. Prior to passage of the law, the city was powerless to enforce its policy affirmatively against such organizations. _Portland Press Herald_, June 4. _Anne Arundel County, Maryland_ - The school board in Anne Arundel County unanimously voted to approve a new policy protecting students from harassment and employees from discrimination on the basis of sexual orientation, becoming at least the third Maryland county, after Howard and Montgomery counties, to adopt such a policy. The June 5 vote was described by the school superintendent as a matter of "common sense." The new policy calls for school officials to take disciplinary action against anybody who harasses gay students, and guarantees gay students equal access to school programs and activities. _Baltimore Sun_, June 6. _North Carolina_ -- The Durham City Council voted 4-3 against a proposal that would have extended health and dental coverage to same-sex partners of city employees. The City Manager had supported the proposal after hearing from two employees who wanted benefits for their partners. The city includes sexual orientation in its non- discrimination policy, but a majority of Councilmembers were swayed by arguments about the moral implications of allowing unmarried couples to receive the same benefits as married couples. _Raleigh News & Observer_, June 19. _Oregon_ -- On June 20, the Multnomah County Commissioners voted 3-2 not to give employee charitable donations to agencies that discriminate, but the measure was compromised to the extent that the county will continue to support United Way, even though the local United Way still supports the Boy Scouts of America. However, United Way would not be allowed to pass along any county money to the BSA. Potential charitable recipients will have to affirm that they do not discriminate on the basis of race, religion, color, sex, marital status, familial status, national origin, age, mental or physical disability, sexual orientation, gender identity or source of income. _Portland Oregonian_, June 21. A.S.L. Law & Society Notes _Michigan_ -- In a startling reversal of an established procedure, Washtenaw County, Michigan, Chief Judge Archie Brown issued a directive that second-parent adoptions may not be granted in the county's courts, which include the county court in Ann Arbor, which has been granting a significant number of such adoptions to lesbian couples in recent years. Brown found that the adoptions violate a state law that allows only individuals and married couples to adopt children. Virtually all the second parent adoptions granted in Michigan have been in Ann Arbor, including 17 in 2001 and 7 so far this year. Brown indicated that adoptions already granted would not be disturbed, but that judges are not to adopt any new ones. Will the trial bench of Ann Arbor take this lying down? Next question. Ann Arbor had been the only place in the statute where same-sex couples could find sympathetic courts to approve adoptions. _Detroit Free Press_, June 5. _California_ -- On June 5 the University of California Board of Regents voted to extend retirement benefits to UC employees with domestic partners. The benefits will go into effect throughout the UC system effective July 1. The Regents estimated that 2 percent of their 128,500 employees have same-sex partners and 6 percent have opposite-sex domestic partners, resulting in a one-time cost to fund future benefits obligations of $139 million, and ongoing annual costs of about $7 million. The system had previously extended health insurance coverage for employees with same- sex partners only. _Santa Fe New Mexican_, June 5. _Massachusetts_ -- Seeking to signal its disagreement with the Boy Scouts of America's official anti-gay policies, the Minuteman Council, which oversees more than 18,000 Scouts and 3,300 adult members in the Boston area invited openly gay radio commentator David Brudnoy to be the master of ceremonies at its annual fund-raising dinner on June 10. Last year, the Council approved a bylaw explicitly prohibiting sexual orientation discrimination, and is waiting to hear whether it will be expelled by the national organization. _Boston Globe_, June 10. _Virginia_ - Governor Mark Warner was disappointed by the refusal of the Virginia Housing Development Authority Board to change its criteria so that same-sex couples could receive loan assistance. So disappointed that he has appointed openly-gay Jay Fisette, a member of the Arlington County Board, to an opening on the state housing board. Predictably, a spokesperson for the Richmond-based Family Foundation, an anti-gay group, condemned the appointment as part of a plot by Warner to destroy the morals of Virginia by "endorsing homosexual relations," in violation of the state's sodomy law. Fisette's response: "I didn't realize I was that important. Their limited view of the world, and families, is clearly a step back in time and quite different from the world we live in." Warner's spokesperson, press secretary Ellen Qualls, said the appointment was a "clear message" that the governor was committed to changing the rule, which she characterized as the most restrictive in the nation. "Fisette is the kind of person the governor is looking for, because he's looking for people to vote to expand the lending policy to serve more Virginians." _Washington Post_, July 11. A.S.L. International Notes _Late-Breaking News Flash_ -- As we were going to press, we learned that the European Court of Human Rights issued an important decision on transgender rights in a case involving the U.K., and the Toronto Division of the Ontario Superior Court of Justice issued a decision favoring the plaintiffs in a pending suit by same-sex couples seeking the right to marry. We did not have full text of these decisions in time to write about them in this issue of Law Notes, but we will provide full reports in the September issue. _International_ -- An international on-line sperm bank was scheduled to be launched in late June for the use of lesbians seeking to have children through donor insemination. The sperm bank can be accessed at www.mannotincluded.com. _National Post_, June 25. _The Express_ reported on June 27 that in its first 48 hours of operation, the site received 8,000 registrations, with 3,000 lesbian couples seeking sperm and 5,000 gay men signed up as potential donors. _India_ -- India's law Centre is conducting a study on the legal, social and ethical aspects of legalising gay sex among consenting adults, in response to an inquiry from the nation's high court, which is considering an application from Naz Foundation, a gay rights group, to declare Section 377 of the Penal Code ("Unnatural Offenses") in applicable to consensual gay sex between adults. _Times of India_, June 25. _Great Britain_ -- Clare Steen, a male to female transsexual, achieved a handsome monetary settlement of her discrimination claim pending against Structural Polymer Systems Ltd before the Equal Opportunities Commission. _Daily Telegraph_, June 26. _New Zealand -- Prime Minister Helen Clark, extended a "personal apology on behalf of the government" to gay New Zealanders for the historic discrimination they have suffered. In an interview with _Express_, a gay newspaper, she said, "It's been disgraceful, of course it has. People have put up with the most appalling discrimination, stereotyping, people have been criminalised." Reporting on this, the _Christchurch Press_ (June 5) pointed out that NZ's Labor Party had "clearly branded itself as 'the gay party,'" with three openly gay or lesbian representatives in the Parliament, and three additional lesbian candidates in the top 50 position in the party list for future elections. _Austria_ - Austria's State Secretary for Finance, Alfred Finz, has called for the abolition of Paragraph 209, which sets a higher age of consent for gay sex than is set for non-gay sex. The statute has attained controversial status lately with some high level prosecutions of men for having sex with teenager boys. If the age of consent is equalized as between gay and non-gay intercourse, most of these incidents, which involved boys 16 or older, would have been legal. _Die Presse_, June 5. _Manitoba, Canada_ - The New Democratic Party government in Manitoba introduced legislation on June 6 that would provide recognition for same-sex partners in several respects, including the ability jointly to adopt children and to make medical decisions for a partner. The law would also require that relationship with same-sex partners be disclosed and taken into account in terms of conflict of interest rules governing the members of public bodies. Later in the session, the government is expected to introduce legislation on property rights for same-sex partners. _Winnipeg Free Press_, June 7. _Quebec, Canada_ -- The Quebec legislature approved a civil union bill, becoming the second province after Nova Scotia to do so. The bill gives same-sex couples the same rights and obligations as married heterosexual couples, including adoption rights and rights to artificial insemination, according to a Reuters bulletin published in the _Philadelphia Inquirer_ on June 9. Openly lesbian cabinet minister Andrea Boulerice commented, "We are celebrating a historic moment today," after the bill was passed. The minimum age for civil unions was set at 18, but 16-year-olds may contract heterosexual marriages in Quebec. Divorces for civil unions will be less complicated than for marriages; if there are no children, a notary public can witness a divorce agreement. _Korea_ -- The _Korea Times_ (July 5) reports that the Pusan District Court approved on July 3 a change of gender on a citizen identification card for a male to female transgender person, a first in Korea. The Korean Medical Association has estimated that about 300 to 400 Koreans under sex reassignment procedures each year, but this is the first time a court has authorized such a gender change for this reason. The few past cases in which changes were allowed had to do with "biological reasons, such as chromosome unbalance and defects," according to the news report. _Jerusalem, Israel_ -- Jerusalem experienced its first gay pride march on June 7, with estimates that at least 4,000 people took part in the parade, facing down a small number of vociferous protesters. While the city government had refused to provide direct financial support for the event, it did allow gay rights banners to be strung up on street lamps and provided a high level of security protection. A large-scale gay rights celebration has been an annual event in Tel Aviv for many years. Israel provides a higher level of recognition and protection for gay rights than many other western nations in terms of decriminalization of sex and protection against employment discrimination, but is still behind in family law, a subject largely controlled by religious conservatives. _Jerusalem Post_, June 9; _Sweden_ - The Swedish Parliament voted on June 5 to approve a proposed law that allows cohabiting same-sex couples who have registered a legal partnership to apply jointly to adopt a child, either from within Sweden or from abroad. Thus the Swedes go one step further than the Danes, Dutch and Icelanders, who permit same-sex adoptions of children within their borders. However, the new law is seen as likely having little extra-territorial impact, since none of the other European countries surveyed by the Foreign Ministry would consent to have a same-sex couple from another country adopt one of their children. Few children are put up for adoption in Sweden, so the main impact of the law will probably be for situations where a person in a same-sex relationship has a child and her partner wants to adopt the child. _The Independent - London_, June 7. _The Netherlands_ - The latest census shows that there are about 50,000 gay and lesbian families in the Netherlands, an increase of 25% over those counted five years ago. The census showed that gay partnerships were more common among men than women, that about one of every seven couples had legally formalized their partnership either by registering as partners or by marrying under the new law that went into effect last year, and that one in every 13 same-sex couples have adopted children. Most of those adopting children have been lesbian couples. _Gay.com Newscenter_, June 5. _Canada_ - On June 28, 2002, the new Immigration and Refugee Protection Act and accompanying regulations went into effect, under which Immigration Canada now recognizes same-sex partners as "common law" spouse- equivalents, including such partners in the "Family Class," so they can be sponsored by a Canadian citizen or permanent resident. The Act introduces a procedural structure for dealing with gay family claims, and establishes appropriate forms for administering such claims. _Ireland_ - Mr. Justice McKechnie of the High Court of Ireland ruled against a petition by Dr. Lydia Annice Foy, a dentist, for a new birth certificate listing her as female, on July 9. Dr. Foy, born Donal Mark Foy 55 years ago in Athy, County Kildare, underwent gender reassignment surgery in 1992 after being diagnosed as transsexual, and changed her name through an administrative process. In a 130-page decision reviewing in detail scientific evidence, the judge concluded that Dr. Foy had been born male with conforming biological structures, and that the state of evidence is not yet such as to show that there is a biological basis in the brain for transsexuality, thus as a matter of law a transgender person cannot be declared by the court to be a member of the opposite sex. McKechnie noted the complication that at the time of the operation, Dr. Foy was married to a woman and had two children, and was not divorced from her until some years after the operation. In opposing Foy's petition, the ex-wife had argued that a new birth certificate would invalidate the marriage and affect the status of the children. _Irish Times_, July 10. _United Kingdom_ - Prime Minister Tony Blair has decided to appoint Rowan Williams, head of the Anglican Church in Wales, to be the 104th Archbishop of Canterbury, thus following the recommendation of the Crown appointments commission. Press reports anticipating Williams' appointment commented on his generally pro-gay views, which caused no lack of consternation among conservatives, as the Archbishop of Canterbury is the ritual head of the nation's established church. _The Guardian_, July 10. A.S.L. Professional Notes Out lesbian former prosecutor Florence Finkle has been promoted to become director of the New York City Civilian Complaint Review Board. She has headed the CCRB's investigative unit since 1996, and was previously an assistant district attorney in Manhattan. In 1998, she was the subject of an article in _Glamour_ magazine about her process of coming out to herself. _New York Daily News_, July 10. Openly gay U.S. Rep. Barney Frank is the subject of a new documentary film by Bart Everly, titled "Let's Get Frank." Frank is a Harvard Law graduate who is a prominent leader among Democratic liberals in the House. In the film, he recalls then-Speaker Tip O'Neill's reaction to Frank's announcement about his homosexuality. Tip said to Barney, "I'm sorry to hear that. I thought you were going to be the first Jewish speaker." Then Tip told his staff, "We better get ready. Barney Frank is going to come out of the room." _Boston Herald_, June 17. The film is expected to be screened for the first time this summer or fall. A.S.L. AIDS & RELATED LEGAL NOTES Supreme Court Again Narrows ADA; Supports EEOC Reg Allowing Exclusion of Persons From the Workplace For Their Own Protection The U.S. Supreme Court has narrowed the protections provided under the Americans with Disabilities Act (ADA), ruling unanimously that under a regulation promulgated by the Equal Employment Opportunity Commission, the ADA does not require employers to hire people whose own health or safety would be put at risk by the job. _Chevron U.S.A., Inc. v. Echazabal_, 2002 WL 1270586 (June 10). Reversing a decision by the 9th Circuit Court of Appeals, the Supreme Court concluded that the EEOC did not exceed its rulemaking authority when it adopted the regulation at issue (29 C.F.R. secs. 1630.15(b)(2)), even though the ADA on its face only permits employers to refuse to hire individuals who would pose a direct threat to others in the workplace. Mario Echazabal worked for independent contractors at one of Chevron's oil refineries since 1972. Twice, he applied for a job directly with Chevron and was turned down, due to a liver condition (eventually identified as Hepatitis C) which Chevron's doctors said would be exacerbated by continued exposure to toxins at Chevron's refinery. Chevron ultimately asked Echazabal's employer either to reassign him to a job that did not expose him to harmful chemicals, or to simply remove him from the refinery. Echazabal's employer opted for the latter option, and laid him off in 1996. Echazabal filed suit against Chevron under the ADA. Chevron alleged that its conduct was proper and not subject to liability under the ADA, since Echazabal's liver condition posed a direct threat to him if he continued his work at the refinery. Although two medical witnesses disputed Chevron's assessment of Echazabal's medical condition (and the effect that future work at the refinery would have on his health), the District Court granted summary judgment to Chevron. On appeal, the Ninth Circuit reversed, finding that the EEOC exceeded its rulemaking authority when it adopted the "threat-to-self" regulation. Echazabal's principal argument to the high court was based on the rule of statutory construction _expressio unius exclusio alterius_: that by including in the ADA a provision allowing employers to refuse jobs to those who would pose a direct threat to others, Congress meant to prevent employers from refusing jobs to individuals who pose a threat to themselves only. Writing on behalf of the Court, Justice Souter rejected this argument first and foremost based on the language of the ADA itself, which mentions the "threat to others" exception as only one of any possible number of "qualification standards" that may be relied upon by employers to deny jobs to applicants with disabilities. Souter also took the position that Echazabal's position proved too much, asking: "When Congress specified threats to others in the workplace, for example, could it possibly have meant that an employer could not defend a refusal to hire when a worker's disability would threaten others outside the workplace? If Typhoid Mary had come under the ADA, would a meat packer have been defenseless if Mary had sued after being turned away? Expressio Unius just fails to work here." Chevron alleged that the EEOC's regulation was reasonable for reasons the Court called "unsurprising," including the wish to avoid time lost to sickness, excessive turnover from medical retirement or death, and litigation under state tort law. While the Court did not discuss these issues at any length, it did give decisive weight to Chevron's fear that by hiring Echazabal, it could be found to violate the Occupational Safety and Health Act of 1970, a federal law requiring employers to ensure the general safety of their workers. "Although there may be an open question whether an employer would actually be liable under OSHA for hiring an individual who knowingly consented to the particular dangers the job would pose to him [or her]," Souter wrote, "there is no denying that the employer would have asking for trouble." Perhaps anticipating criticism from disability advocates, Souter denied that the EEOC regulation allows "the kind of workplace paternalism that the ADA was meant to outlaw." According to the Court, the ADA meant only to protect persons with disabilities from decisions based on "untested and pretextual stereotypes." Souter emphasized that the EEOC regulation, by contrast, requires there to be "particularized enquiry into the harms the employee would probably face" and that the direct threat defense must be "based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence." Echazabal was represented by Samuel R. Bagenstos. Chevron was represented by Stephen M. Shapiro. _Ian Chesir- Teran_ [Editor's Note: The potential effect of this decision on people with HIV who wish to continue working could be significant, if employers succeed in enlisting medical professionals to opine that particular people with HIV could be harmed by exposure to something in the employer's workplace. A.S.L.] California Appeal Court Refuses to Block Extradition of Middle-Aged HIV+ Man to Georgia for Teen Offense Rejecting an argument that sending him into the Georgia prison system would violate the constitutional ban on cruel and unusual punishment, the California Court of Appeal, 2nd District, denied a petition for a writ of habeas corpus filed by Timothy Walton, a middle-aged man with HIV who is wanted by the State of Georgia for escaping from a Georgia prison in 1973 while serving a 7-year sentence for a robbery committed when he was 19. _In re Timothy Walton_, 2002 WL 1376021 (June 26, 2002). Walton escaped as part of a general breakout by about two dozen inmates, when he had served six months of his sentence. He made his way to California, where he has lived ever since, having married, had and raised children, and is now a grandfather, described by the court as "afflicted with AIDS." Walton has not exactly led an exemplary life in California, having had several brushes with the law. Shortly after his arrival there, in June 1975, he was arrested on a domestic violence charge originating from what Walton characterizes as a "domestic squabble." He was kept in custody on a "fugitive hold" from the Georgia Department of Correction, which requested extradition, and Governor Gerry Brown had approved the request, but while Brown was out-of-state, Lt. Gov. Mervyn Dymally, acting as governor, withdrew the authorization for extradition, noting that Walton was "young. . ., about to be married," and expressing "concern for Mr. Walton's safety" in the Georgia prison system. Although Walton came to the attention of the police in California several times over the following decades, Georgia authorities, when contacted, didn't seek extradition, having been rebuffed once. But then, after he was arrested for operating a bicycle after dark without a light, Georgia officials decided to try again and, after reviewing the case, Gov. Gray Davis decided to authorize the extradition, even though Walton claimed that his current health condition would present particular dangers in light of the Georgia prison system's notorious reputation when it comes to AIDS treatment. Having failed to impress the governor, Walton filed his writ and managed to impress the L.A. County Superior Court with his doctor's medical testimony that the transportation to Georgia and incarceration there, with consequent interference with his treatment, could significantly reduce his life span. However, in an opinion by Judge Woods, the court of appeal concluded that Georgia is entitled to the extradition of a fugitive, and Walton's evidence, while moving, was misdirected, because once the governor had approved the request for extradition, the court's role on a petition for a writ of habeas corpus was limited to four issues: whether the extradition documents were facially proper, whether the petitioner was charged with a crime in the demanding state, whether there is no mistaken identity issue, and whether the petitioner is actually a fugitive from justice. All four of these questions are uncontested in Walton's case. In the course of a lengthy discussion of the modern history of extradition law, the court noted that when Acting Gov. Dymally had blocked Walton's extradition in the mid-1970s, the law was otherwise, but subsequent U.S. Supreme Court precedents had sharply circumscribed the ability of a state to refuse to comply with a valid extradition request from another state. "The status of Walton's health simply is not relevant to the right of the State of Georgia to demand his extradition," wrote Woods, who said that really the only relevant arguments raised by Walton were that Georgia had effectively waived its right to demand extradition by its past actions in not following up and seeking extradition several times over the years when contacted by California law enforcement authorities about Walton's continued arrests. Woods noted that California courts have not been receptive to such arguments, however. The decision drew a long, detailed dissent from Judge Johnson, claiming that "this is one of those extraordinarily rare instances where a state's behavior in the extradition process -- involving undue delay, earlier ignored opportunities to pursue extradition, and an express waiver -- violated petitioner's due process rights to fundamental fairness." In essence, Johnson claimed that when Georgia officials had repeatedly rejected attempts to pursue extradition, and had, in writing, specifically waived that right on prior occasions, it was fundamentally unfair to somebody who had been living in California for 30 years to suddenly send him to a Georgia prison. However, even Judge Johnson agreed with the majority that Walton's health arguments did not pose a constitutional barrier to his extradition. "Harsh as it may seem," wrote Johnson, "California courts have no reason to even inquire into the truth of these claims. . . It is the courts of the demanding state -- and only those courts -- which have jurisdiction to consider any constitutional or legal claims the prisoner may suffer illness, injury or death if extradited to that state. Accordingly, petitioner Walton's Eighth Amendment claims must be addressed to the Georgia courts." On the other hand, Johnson argued that this did not mean that "Walton's present precarious health condition cannot enter into the due process equation when considering whether Georgia's conduct in the extradition process this past quarter century has created an egregious situation where to grant that state's current request would deny Walton his due process right to 'fundamental fairness' under the U.S. Constitution." Johnson would resolve this 14th Amendment issue against Georgia. A.S.L. PWA Wins Reversal of Summary Judgment on Disability Discrimination Claim Michael Marshall worked for Floral Telephone Services, a florist, continuously for a year, but arrived late every Tuesday, the day he had AIDS treatments. _Marshall v. Floral Telephone Servs., Inc._, 2002 WL 1376231 (Cal. App. 2d Dist. June 26, 2002). The arrangement was approved by his employer/supervisor, Lou Cohen. The treatments caused a painful medical condition in Marshall's right foot and leg, making it difficult for him to stand for extended periods. He was too ill to work during the busiest time of year (from Secretary's Day in April to Mother's Day in May), and had to undergo surgery in May. Cohen told him that his job would be waiting for him when he wanted to return, and Marshall did return in late May, asking for accommodations based on his illness-related disability. The accommodations would have entailed a shortened work schedule and limiting his assignments to those not requiring strenuous activity. Cohen refused to make accommodations and terminated Marshall. According to Marshall, Cohen called Marshall a troublemaker (he had complained to the state labor department about the lack of overtime pay) and said that the person who replaced him was faster and cheaper. Marshall filed complaints against Floral, alleging disability discrimination and retaliatory firing. Floral asked for and received summary judgment, the trial court finding that Marshall could not establish a prima facie case: (1) because Marshall's disability did not limit his ability to perform a major life function, which is a requirement for finding disability discrimination; and (2) Floral needed to hire someone permanent to replace Marshall because the volume of business in April and May make it essential to have an employee who can handle all aspects of the job. The appellate court reversed the trial court, finding triable issues of fact as to whether Marshall suffered a disability and whether Floral's reasons for hiring a replacement for Marshall were a pretext for unlawful discrimination. The court found that standing on one's feet _is_ a major life activity, citing 29 C.F.R. secs. 1630.2(i). Whether Marshall's illness is the cause of his inability to stand is an issue for a trier of fact; therefore, the appeals court reversed the trial court on that issue. The appellate court also found that whether Floral had a legitimate reason to discharge Marshall, or whether the stated reason was a pretext, is also an issue for trial. Pretext, said the court, may be inferred from (a) the timing of a discharge decision, (b) the identity of the decision-maker, or (c) the discharged employee's job performance before termination. Pretext may be demonstrated by showing that the proffered reason (a) had no basis in fact, (b) did not actually motivate the discharge, or (c) was insufficient to motivate the discharge. One fact that the court found significant was that Floral often had hired temporary workers in the past, especially to handle the April-May crunch. In addition, the timing of the termination might suggest that it was based upon Marshall's disability and not on any undue hardship that Floral would have suffered. Although the appellate court upheld the trial court's dismissal of the retaliation charge, it reversed the decision regarding disability discrimination, finding significant issues that a trier of fact is best suited to decide. _Alan J. Jacobs_ Lack of HIV+ Defendant's "Regard for Human Life" Justified Consecutive Sentences A Tennessee appellate panel affirmed the conviction and consecutive sentences of a 24-year-old parolee who, knowing that he was HIV+ and that his sex partner was only 14 years old, had unprotected sex with her. He did not reveal his HIV status, although he had known of his status for several years. _State of Tennessee v. Harvey_, 2002 WL 1162346 (Tenn. Crim. App. May 31, 2002). Michael Harvey appealed his conviction both on the sufficiency of the evidence, and on the excessiveness of consecutive sentences totaling 20 years (in addition to two consecutive sentences from which he was then on parole). The court had little trouble affirming the jury's determination that the sole testifying witness to the event, the victim, was more credible than Harvey (testifying in his own behalf), his brother, and their mother, whose testimony placed Harvey elsewhere. The conviction was upheld. In allowing consecutive sentences for the two counts arising from the statutory rape, the opinion for the court by Judge John Everett Williams referred to Tennessee's sentencing guidelines, Tenn. Code secs. 40-35-115(b)(1) to (7). The guidelines state that sentences may run consecutively if "the defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high." Harvey fit this description, stated Williams, and deserved to receive a sentence of six years for the Class E felony of statutory rape, Tenn. Code sec. 39-13-506, followed by a 14-year sentence for the Class C felony of criminal exposure to HIV. Tenn. Code. sec. 39-13-109. Another aggravating circumstance -- that Harvey was a past offender then on parole -- also justified the consecutive sentences, to be served after he had served consecutive sentences for his prior conviction. _Alan J. Jacobs_ Requested HIV Test After Needle-Stick Injury Does Not Violate ADA The question before the federal district court in _Kressler v. Four Winds Hospital_, 2002 WL 1300057 (S.D.N.Y. June 11) was whether a private psychiatric hospital employee who was terminated for refusing to take an HIV test after a work-related needle stick injury stated a cause of action under the Americans with Disabilities Act ("ADA"). The needle stick injury occurred as the employee, a mental health worker named Daniel Kessler, was attempting to assist a nurse in administering medication to a 10-year-old patient. Kessler was stuck with the needle before the patient got the injection. The hospital wanted the test done in order to assess the risk of exposure to HIV and thus avoid the need for prophylactic treatment. District Judge Harold Baer, Jr., granted the hospital's motion to dismiss, ruling that in requesting that Kessler take the test, the hospital did not treat him as if he had a disability or impairment within the meaning of the ADA. Kessler did not make this required allegation in his complaint, and it could not be inferred from the circumstances. While Kessler argued that the request for the test necessarily gave rise to a cause of action under ADA, the court ruled otherwise, stating that only those medical inquiries that did not serve a legitimate business purpose were barred under the ADA. In this case, the test was requested so that the health of a patient could be protected. This would certainly fall within the hospital's legitimate business needs, according to the court. _Steven Kolodny_ Dallas Court Recognizes "Great Lengths" of VA Care for Terminal AIDS Patient The U.S. District Court for the Northern District of Texas, Dallas Division, deciding a malpractice case brought on behalf of a deceased AIDS patient against the Veterans Administration Hospital and Nursing Home in Dallas, concluded sympathetically that while plaintiffs were unquestionably sincere, "it [is] not uncommon for family members to have higher expectations [than] an objective person would have in situations concerning the quality of care of their loved ones." _Naab v. United States_, 2002 WL 1268032 (N.D. Tex., May 31, 2002). In 1993, VA doctors diagnosed the disease PML in AIDS patient Edwin Armijo, giving him an accurate prognosis of at most two months to live. Armijo received about twenty-three days of hospice care in the VA home, returning to the hospital about two weeks before his death. While he was at home, Armijo's wife (Armijo-Naab) and children actively assisted in his care. Naab complained that VA nursing staff failed to properly feed and medicate Armijo, and to clean Armijo and his room. A representative of the AIDS Interfaith Network described Armijo's room as being dirty and cluttered, and told staff that Armijo was developing bed sores. Each of these factual allegations were refuted. Nursing home records and staff testimony indicate that, while Armijo's room appeared cluttered due to such equipment as a walker and wheelchair, the room was cleaned and Armijo was bathed frequently. The family's complaints about cleanliness, bed sores, nutrition and medication were promptly investigated by the relevant specialists. Although no bed sores were found at the time or at autopsy, Armijo was placed on a special mattress and turned every two hours. In light of eating difficulty common to advanced AIDS, Armijo received a feeding tube. Judge Lindsay examined photographs offered by the plaintiffs and their emotional demeanor and reasoned that the latter "did not permit them to assess the evidence in an objective manner." Noting that plaintiffs could not contend that the alleged inadequate care caused Armijo's death, and that they stated no clear-cut theory of recovery, Judge Lindsay treated theirs as a case for loss of spousal and parental consortium. Finding conclusive evidence that the quality of the nursing delivered to Armijo met the requisite standard of care, without any evidence of "mass conspiracy on the part of the medical personnel to lie, the judge assessed litigation costs against plaintiffs. _Mark Major_ AIDS Litigation Notes _Federal -- Puerto Rico_ -- _Pubill-Rivera v. Curet_, 2002 WL 1414089 (U.S.Dist.Ct., D.P.R., May 31 2002), is one of those decisions about which one shakes one's head and questions whether judges are either too well or not well enough versed in their Dickens. The suit was brought by Maritza Pubill-Rivera, whose son, Amaury, died from AIDS at age 22 while incarcerated in Bayamon Regional Jail. His death was quick, painful, and unnecessary, to judge by the pleadings, occurring primarily because prison officials exhibited no sense of urgency whatsoever about providing medical services to people with HIV-related symptoms who test positive. He sought medical services in the jail on July 31, 1996, presenting with AIDS-like symptoms, and was "tested" (for what is unclear from the opinion) and sent back to his cell. No follow-up or treatment was provided at that time. On October 31, he tested positive for HIV and was sent back to his cell, with no follow-up or special treatment. His symptoms having intensified to severe pain, diarrhea, vomiting and loss of appetite, he again sought medical care on November 30, and the attending physician described him as being "acutely" sick with AIDS. Finally (but too late), he was given some medications and admitted to a regional hospital, where he died a few days later. Maritza sought to hold prison health officials liable under the 8th Amendment for cruel and unusual punishment, suing in federal court under 42 USC 1983, alleging that there was a systemic failure and deliberate indifference to the medical needs of prisoners with HIV such as her son. Granting the defendants' motion to dismiss (!), District Judge Garcia-Gregory treated Maritza's allegations as falling short of the constitutional standard, amounting merely to potential negligence claims which would not satisfy the "deliberate indifference" standard. Reading this opinion, one feels like saying things about the judge that are not printable in this kind of publication. That the notorious shortcomings of Puerto Rican jails in dealing with AIDS do not give rise to liability of the responsible officials is shocking. The court's attempt to dispose of the case as a matter of pleading deficiencies is heartless. _Federal -- Florida_ -- A sailor who was denied employment when he tested HIV+ had no claim under the ADA or legal principles governing employer responsibility for injuries to sailors (so-called "maintenance and cure"), according to a decision by District Judge Hoeveler in _Thomas v. New Commodore Cruise Lines Limited, Inc._, 202 F. Supp. 2d 1356 (S.D. Fla., May 22, 2002). Ian Thomas made a contract to work on the steamship Enchanted Capri for defendant cruise line, which was contingent on passing a pre-employment physical including an HIV test. Thomas reported for duty, but an officer discovered he hadn't been tested and he was sent to the Marine Medical Unit in New Orleans, where he tested HIV+. Thomas applied for maintenance and cure and was turned down, then filed this suit. The court held that there was a well-known exception to the right of maintenance and cure for venereal diseases. Thomas argued that enactment of the ADA had displaced this exception, because HIV is a disability. The court responded that HIV is not a _per se_ disability, and there was no indication Congress intended to displace the normal rules of maintenance and cure in the case of venereal diseases. Even if a non-discrimination requirement arose from the ADA, the court found no discrimination here, in that HIV was treated the same as any other venereal disease as a disqualification. Further, Thomas was unable to show how he had become infected, which might be relevant if he was infected in the course of performing shipboard duties. He speculated either that a "condom broke" or that he might have suffered a puncture wound with an infected needle, but he could not specify either such incident as having actually happened. The court granted summary judgment to the employer. _Maine_ -- Steven DesRochers, a wheelchair-bound HIV+ hospice resident who needed hip replacement surgery was turned down for services by Dr. Paul Kamins, an orthopedic surgeon in Belfast, Maine. DesRochers complained to the state human rights commission, which ruled 3-1 on June 17 that Kamins had violated state law banning public accommodations discrimination against persons with disabilities. In response to the discrimination charge, Kamins came up with several non-discriminatory reasons for refusing to perform the operation, but they were determined by a majority of the commission to be after-the-fact rationalizations, overshadowed by Kamins' comment at the time to a nurse from the hospice that performing the procedure for DesRochers would put his surgical team "at risk" and that he had a family to consider. _Portland Press Herald_, June 18. _Maryland_ -- In a lengthy opinion, the Maryland Court of Special Appeals found that the state's consumer Protection Division was justified in going after Neal Deoul, a lawyer and co-founder of a company called T-Up, Inc., which was formed to market a product made up of concentrated aloe vera extract and cesium chloride as a cure-all for immune system problems. Among other things, this snake-oil operation claimed that their product was an effective treatment for AIDS, as well as a wide variety of other diseases. This product was never subjected to testing or submitted for licensing to the FDA. When federal and state regulators went after T-Up and its operators, they concluded that consumer fraud laws and federal drug regulations had been violated by the company, which marketed its product through direct mail using purchased mailing lists with hundreds of thousands of names, and a lengthy proceeding resulted in orders to cease business and imposed significant civil fines on the individuals involved, who then sought judicial review. The fines were calculated based on the number of gullible people who actually purchased the product in response to the direct mail campaign. In _T-Up, Inc. v. Consumer Protection Division_, 2002 WL 1377794 (June 26, 2002), the court upheld the orders against the company and its co-founders and operators. Amazing what people think they can get away with. _Missouri_ -- In _State of Missouri v. Moss_, 2002 WL 1326053 (Mo. Ct. App., E.D., Div. 2, June 18, 2002), the court upheld the conviction of Marshall Moss for "recklessly exposing his former girlfriend to HIV without her knowledge and consent through unprotected sex." Evidently, the girlfriend was not infected, as the sentence imposed was five years, suspended, a similar period of probation, and a $5,000 fine. Quoth the court per curiam: "No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law." The parties were presented with an unpublished memorandum opinion "for their information only." _Louisiana_ -- She had to know it was too good to be true. On September 26, 2001, Honorable Piper Griffin of the Orleans Parish Civil District Court awarded Marie Cornish, an unemployed grandmother of two, age 40, damages totaling $2.5 million in her negligence suit against Doctors Care LLC, a health clinic, for a delay of a few months in notifying her of an HIV+ test result. On June 12, 2002, the Court of Appeal of Louisiana, 4th Cir., vacated the judgment, which had been rendered on the defendant's default, and remanded back to the trial court. _Cornish v. Doctors Care, LLC_, 2002 WL 1335244. Cornish testified at the default hearing that she went in for testing early in April 2001, but was not notified of her HIV+ result until late in July, and that this delay had so compromised her future health status as to have reduced her predicted life span from 24 more years to one year. She provided no expert medical testimony for the contention that more prompt treatment would have prevented her from developing AIDS. In an opinion by Judge Miriam G. Waltzer, the court determined that a default judgment could not be rendered on the basis of this evidence, because there was no prima facie case for negligence liability, which includes present probative evidence that a breach of duty by the defendant actually caused an injury to the plaintiff. The court found nothing in the record to support a conclusion that a delay of a few months in commencing treatment for HIV infection would have more likely than not produced such a drastic diminution of Ms. Cornish's life span. (From the court's account of the evidence, it appears that what happened was that when Ms. Cornish's test came in positive, the defendant sent the sample out to a different lab for a confirmatory test, and held up contacting her until the confirmation had come in.) _New York_ -- N.Y. Supreme Court Justice Alan D. Oshrin has ruled that a massive jury verdict given to a woman whose picture was used in a drug company's brochure for HIV-related medications must be set aside and the case retried unless she will accept a significantly smaller amount of damages. _Doe v. Merck & Co._, NYLJ, 6/3/2002 (N.Y. Sup. Ct., Suffolk County). The jury had awarded $2 million in punitive damages and $1 million in compensatory damages. Justice Oshrin found that the trial record would not support an award for punitive damages, as it appeared that the defendant thought it had permission for the publication and the problem may have been miscommunication rather than a wilful flouting of the plaintiff's privacy rights. Furthermore, the court found $1 million excessive, and offered Doe $650,000 as damages if she did not wish to relitigate the case before a new jury. Doe had given Merck permission to take and use her picture in what she thought was a brochure for users of Crixivan, an HIV drug, but later discovered that the picture had been used in a general advertising brochure and that a caption had falsely described her as an unmarried 19-year-old mother of two who suffered from both HIV and herpes, due to sexual promiscuity. Liability had been determined in this case on a summary judgment motion before a different judge, and then the case went to Oshrin for trial of the damage claim. "The conduct discussed is not so flagrant as to transcend mere carelessness," wrote Oshrin. "Punitive damages may not be awarded in a case where there is only negligence or poor judgment on the part of the defendant." Here, while the defendant knew that the plaintiff had not specifically approved the language of the caption or the placement of the picture, its actions were at worst negligent under the circumstances, with no intention to cause injury to the plaintiff. The reduction of compensatory damages was premised on testimony by a defense expert disputing the degree of emotional distress suffered by Doe. _South Carolina_ -- In _Ex Parte The Department of Health and Environmental Control; State v. Doe_, 2002 WL 1306166 (June 17, 2002), the Carolina Supreme Court unanimously ruled that a state health department record of an individual's HIV test result was admissible in a criminal prosecution of the individual for knowingly exposing a victim, in this case a minor, to HIV. When the John Doe defendant was prosecuted, the state sought from the Health Department Doe's HIV test record, information about chain of custody of the test results, and information about any HIV counseling Doe had, in order to establish that he knew about his HIV status at the time he was accused of violating the state's HIV law. The health department resisted these requests, and the state filed a motion to compel production of evidence. The circuit court ordered that all this information be revealed, but the court of appeals refused to order disclosure of counseling records. The Supreme Court found that there was no need for chain of custody information, because the test record could be admitted as a business record, but the court concluded that the counseling records should be disclosed to assist the state in proving Doe's knowledge. "In our opinion," wrote Chief Justice Toal, "any DHEC counseling records pertaining to Doe's notification of his HIV status are relevant to proving Doe's requisite knowledge, and, therefore, are admissible. The procedure in section 44-29-136(A) governs when and to whom this information can be released and provides appropriate safeguards for release of this information which were adhered to in this case." _Pennsylvania_ -- A state trial court in Corry, Pa., sentenced James Willison, 37, to 8-16 years in prison for having unprotected sex with two teenage girls and soliciting sex from a third, without disclosing that he was HIV+. He had also pled guilty to corruption of minors charges for giving alcohol to yet another girl and asking her to perform oral sex. _Charleston Gazette_, July 5. A.S.L. AIDS Policy & Society Notes Dr. Julie Geberding, well known for her work on HIV infection as well as the recent anthrax scares, was appointed to be director of the U.S. Centers for Disease Control and Prevention by Health & Human Services Secretary Tommy Thompson on July 3. In comments to the press, Geberding said, "I want to state very clearly that my essential goal is to substantially reduce and ultimately prevent HIV infection." _American Political network; American Health Line_, July 5. Pennsylvania's Independent Regulatory Review Commission voted 4-1 on June 13 to require health care providers to report to the state the names of people infected with HIV. The state Department of Health already has name- reporting for 52 other diseases, including tuberculosis and full-blown, diagnosed AIDS, and had been arguing that it needed to know about HIV infection in order to track the epidemic and know where to focus attention. The panel rejected attempts by AIDS activists to substitute a coded system for name-reporting, responding to the department's argument that only with name reporting could it be sure it was getting accurate data and helping those who are in need of services. _Philadelphia Inquirer_, June 14. The _New York Times_ reported on June 21 that GlaxoSmithKline, manufacturer of many widely-used HIV drugs, had decided to freeze the prices charges for six of its AIDS drugs in the U.S. until at least January 2004. This follows Pfizer's announcement that it would freeze the price of two of its AIDS drugs for the next two years. A Glaxo executive pointed out that many people get these medications through state-funded programs, and many states had reported budget crunches as the number of people with HIV kept increasing and new medications kept people alive and healthy much longer. In a speech to business leaders with overseas interests, U.S. Secretary of State Colin Powell, who also co-chairs the presidential task force on AIDS, said that U.S. companies with overseas operations should not discriminate against people living with HIV in their overseas employment policies. "They are just like anyone else," said Powell. "They need our help. They need our compassion. They need to be given the opportunity to be contributing members of society. . . I strongly encourage the CEOs that are here today to develop AIDS policies suitable for the countries in which your companies operate." Powell also encouraged mandatory HIV training programs within companies, and said that "there should be no stigmatization of persons with the HIV virus." _Deseret News_, June 25. A.S.L. AIDS International Notes _Barcelona, Spain_ - The 14th International AIDS Conference, held in Barcelona during July, produced the usual flood of headlines as researchers announced the results of new studies and international and national bodies released new data about the progress of the epidemic and efforts to contain it. Among the leading stories was a startling study showing that 70% of HIV+ gay men may be unaware of their HIV-status - a blatant failure for current testing protocols in the U.S., since most effective behavior modification to prevent HIV's further sexual transmission is reliant on individuals knowing their HIV status. Another study, emanating from Boston, suggested that developing a vaccine for HIV would be particularly complicated due to the emergence of many different strains of the virus; the study focused on an HIV-infected man whose body had been mounting a successful immune defense to his original infection but then was profoundly defeated when the man had unprotected sex and was infected by a different strain. One study showed that the average life expectancy in 11 African countries will drop below age 40 by 2010 if there is not some radical intervention to curb the spread of HIV. International bodies warned about a massive increase in the number of AIDS orphans, especially in Africa, and U.S. Secretary of Health and Human Services Tommy Thompson encountered disruptive demonstrations during his scheduled speech, amid charges that the U.S.'s announced contribution to a world AIDS fund was much too small to make a dent in the rapidly growing epidemic in Africa and Asia. Former U.S. President Bill Clinton, speaking on a panel of political leaders, announced regret that he did not do more as president to deal with HIV transmission issues, including needle-exchange programs, which had been effectively vetoed at the behest of Clinton's drug war czar, Gen. Barry McCaffrey. Clinton now acknowledges studies showing that needle exchange programs do not lead to increased illicit drug use. Both China and the Soviet Union were subjected to severe criticism for failing to respond effectively to the epidemics in their countries. World bodies predicted that in the absence of massive increases in funding for prevention work, the epidemic would get exponentially worse over the next decade, and some commented that even though the epidemic now goes back over two decades, we are still at the "beginning" of the world HIV epidemic. So far, there is no sign of the virus having reached saturation and a plateau in any major population, and there are signs in the U.S. that combination therapy may lose its effect over time due to developed resistance and evolving strains of HIV. However, there were also announcements of some new drugs emerging to keep long-term survivors another step ahead of viral resistance. _International_ -- The _Wall Street Journal_ reported June 26 that the U.S. government and the European commission had agreed on a set of proposals to the World Trade Organization to support poor countries that are seeking generic HIV medications from Indian and Brazilian companies that are ignoring first world patent protections. This was characterized as a major breakthrough, as in the past some government leaders, including former V.P. Al Gore, had taken steps to try to protect the rights of U.S. pharmaceutical patent holders against such efforts. * * * On June 19, U.S. President George W. Bush announced that $500 million would be donated by the U.S. government to efforts to prevent HIV transmission from expectant mothers to babies in Africa and the Caribbean. _New York Times News Service_, June 20. _South Africa_ -- Affirming a lower court ruling, South Africa's constitutional court ordered the government on July 5 to provide nevirapine to HIV+ pregnant women at public health care facilities. The government had been resistant, at first due to President MBeki's doubts about HIV being the cause of AIDS, but more recently due to arguments that the infrastructure for administering the drug effectively on a large scale did not yet exist. The court ruled that further delay violated the Bill of Rights. "We do not underestimate the nature and extent of the problem facing government in its fight to combat HIV/AIDS and, in particular, to reduce the transmission of HIV from mother to child," wrote the court, which also acknowledged the need to proceed cautiously with new medications, "but the nature of the problem is such that it demands urgent attention." The Health Minister insisted that the decision did no more than echo the government's internal decision, taking in April, to expand the nevirapine program throughout the country. _Associated Press_, July 6. _China_ -- _China Post_ reported on June 19 that police authorities in Taipi are attempting to remove four policemen who have tested HIV+ from the force. Family members of the police officers complained to the paper about harassment directed at the officers and their families to pressure them to quit their jobs. China has no law protecting employment rights of HIV+ individuals. _France_ -- A French appeals court shocked many observers by dismissing charges against 30 defendants who were expected to stand trial shortly for their alleged roles in an HIV-tainted blood scandal a decade ago that resulted in the unnecessary infection of thousands of people, of whom several hundreds have already died. Most of the victims were hemophiliacs who contracted HIV through blood-product medications, made with blood that public officials allegedly knew could be tainted but did not discard. _The Independent - London_, July 5. _Great Britain_ - The _British Medical Journal_ reported that the number of HIV cases in the United Kingdom almost doubled since 1995, and that by the end of 2003, it is expected to rise from the current count of 30,000 to about 39,000. Also, while infection from gay sex or shared needles is down over the past decade in the U.K., heterosexual sexual transmission cases are up 48 percent in that period. _London Evening Standard_, May 31. * * * Vito Calabrese, an HIV+ waiter at the Shadow Lounge Club in Brewer Street, London, has been sentenced to two years in prison for biting a woman on the dance floor of the club. Calabrese pleaded guilty to the charge of wounding, and the judge justified the sentence by reference to "the anxiety suffered by that woman." Judge David Paget told the defendant before sentencing: "It is a totally bizarre offence and the only explanation you gave was that you were under the influence of drink or drugs." _London Evening Standard_, June 28. _Canada_ -- A trial court in Kitchener imposed a 10 year prison sentence on Edgard Monge, a Nicaraguan native, who was convicted of having unprotected sex with four women without informing them of his HIV status. Two of the women were infected, as well as a baby born to one of them. _National Post_, June 28. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS LESBIAN & GAY & RELATED LEGAL ISSUES: Baime, Major Eugene E., _Private Consensual Sodomy Should Be Constitutionally Protected in the Military by the right to Privacy_, 171 Military L. Rev. 91 (March 2002) (someone talk to this man's career counselor). Beiner, Theresa M., _Let the Jury Decide: The Gap Between What Judges and Reasonable People Believe is Sexually Harassing_, 75 Southern Cal. L. Rev. 791 (May 2002). Brinig, Margaret F., _Domestic Partnership: Missing the Target?_, 4 J. L. & Fam. Studies 19 (2002) (from right-wing perspective). Brody, Evelyn, _Entrance, Voice, and Exit: The Constitutional Bounds of the Right of Association_, 35 U.C. Davis L. Rev. 821 (April 2002). Buss, Emily, _"Parental" Rights_, Virginia L. Rev. 635 (May 2002). Butler, Judith, _Is Kinship Always Already Heterosexual?_, 13 Differences 14 (2002). Calvert, Clay, and Robert D. Richards, _Free Speech and the Right to Offend: Old Wars, New Battles, Different Media_, 18 Georgia State U. L. Rev. 671 (Spring 2002). Calvert, Clay, _Regulating Sexual Images on the Web: Last Call for _Miller_ Time, but New Issues Remain Untapped_, 23 Hastings Comm. & Ent. L. J. 507 (Spring 2001). Coolidge, David Orgon, _Widening the Lens: Chapter 6 of the ALI Principles, Hawaii and Vermont_, 4 J. L. & Fam. Studies 79 (2002) (from right-wing perspective). Duncan, William C., _The Legacy of_ Romer v. Evans_ - So Far_, 10 Widener J. Pub. L. 161 (2001). Elrod, Linda D., and Robert G. Spector, _A Review of the Year in Family Law: State Courts React to_ Troxel, 35 Fam. L. Q. 577 (Winter 2002). Felder, Myrna, _Who May Adopt A Child? 'In re Adoption of Emilio R.'_, NY Law Journal, June 10, 2002, p.3 (thoughtful review of New York case law on adoption, including adoption by gay co-parents; title case involved 1st Dept. decision allowing an unmarried heterosexual couple to adopt jointly; author calls for legislature to revise NY adoption laws so as to reflect the reality of new decisions and family structures). Hacking, Ian, _How "Natural" are "Kinds" of Sexual Orientation?_, 21 L. & Philosophy 335 (May 2002). Haggerty, Bernard P., _Hate Crimes: A View from Laramie, Wyoming's First Bias Crime Law, the Fight Against Discriminatory Crime, and a New Cooperative Federalism_, 45 Howard L. J. 1 (Fall 2001). Hazeldean, Suzan, and Pradeep Singla, _Out in the Cold: The Challenges of Representing Immigrant Lesbian, Gay, Bisexual and Transgender Youth_, 7 Bender's Immigration Bulletin 11 (June 1, 2002). Hermann, Donald H.J., _Legal Incorporation and Cinematic Reflections of Psychological Conceptions of Homosexuality_, 70 UMKC L. Rev. 495 (Spring 2002). Jacobs, Melanie B., _Micah Has One Mommy and One Legal Stranger: Adjudicating Maternity for Non-Biological Lesbian Coparents_, 50 Buffalo L. Rev. 341 (Winter 2002) Knauer, Nancy J., _The September 11 Attacks and Surviving Same-Sex Partners: Defining Family Through Tragedy_, 75 Temple L. Rev. 31 (Spring 2002). Kohm, Lynne Marie, _How Will the Proliferation and Recognition of Domestic Partnerships Affect Marriage?_, 4 J. L. & Fam. Studies 105 (2002) (from a right-wing perspective). Kwok, Chi Steve, _A Study in Contradiction: A Look at the Conflicting Assumptions Underlying Standard Arguments for Speech Codes and the Diversity Rationale_, 4 U. Pa. J. Const. L. 493 (April 2002). Maravilla, Christopher Scott, _The Feasibility of a Law to Regulate Pornographic, Unsolicited, Commercial E-Mail_, 4 Tulane J. Tech. & Int. Prop. 117 (Spring 2002). Merin, Yuval, _Equality for Same-Sex Couples_ (University of Chicago Press, 2002) (Extensive international survey of legal recognition for same-sex couples, available both in paperback and hardcover. The author is an Israeli legal scholar and academic in Tel Aviv, who is also a current member of Legal.). Nussbaum, Martha C., _Millean Liberty and Sexual Orientation: A Discussion of Edward Stein's_ The Mismeasurement of Desire, 21 L. & Philosophy 317 (May 2002). Robertson, John A., _Precommitment Strategies for Disposition of Frozen Embryos_, 50 Emory L. J. 989 (Fall 2001). Schwartzberg, Beverly J., _Untangling Marriage's Hidden History: Two Views_, 11 UCLA Women's L. J. 281 (Spring/Summer 2001) (book review essay). Skover, David M., and Kellye Y. Testy, _LesBiGay Identity as Commodity_, 90 Cal. L. Rev. 223 (January 2002) (essay). Stein, Edward, _Precis of_ The Mismeasurement of Desire: The Science, Theory and Ethics of Sexual Orientation, 21 L. & Philosophy 305 (May 2002) (and reply to Nussbaum and Hacking articles noted above, at 349). Strasser, Mark, _Same-Sex Marriages and Civil Unions: On Meaning, Free Exercise, and Constitutional Guarantees_, 33 Loyola U. Chi. L. J. 597 (Spring 2002). _Student Articles:_ _Employment Law - Title VII - Sex Discrimination - Ninth Circuit Holds That Male Coworkers' and Supervisors' Harassment of Male Employee for Failing to Meet Sex Stereotype Constitutes Sex Discrimination - Nicholls v. Azteca Restaurant Enterprises, 256 F. 3d 864 (9th Cir. 2001)_, 115 Harv. L. Rev. 2074 (May 2002). Kelly, Scott, _Scouts' (Dis)Honor: The Supreme Court Allows the Boy Scouts of America to Discriminate Against Homosexuals in_ Boy Scouts of America v. Dale, 39 Houston L. Rev. 243 (2002). King, Tiffany L., _Working Out: Conflicting Title VII Approaches to Sex Discrimination and Sexual Orientation_, 35 U.C. Davis L. Rev. 1005 (April 2002). Olson, Kristin, _Comprehensive Justice for Victims of Pornography-Driven Sex Crimes: Holding Pornographers Liable While Avoiding Constitutional Violation,_ 80 Oregon L. Rev. 1067 (Fall 2001). Pa, Monica, _Beyond the Pleasure Principle: The Criminalization of Consensual Sadomasochistic Sex_, 11 Tex. J. of Women & L. 93 (Fall 2001). Rowland, Virginia, _Constitutional Law - Deference to Discriminators:_ Boy Scouts of America v. Dale, 31 N. Mex. L. Rev. 607 (Summer 2001). Sanford, Bill W., _"Virtually" A Minor: Resolving the Potential Loophole in the Texas Child Pornography Statute_, 33 St. Mary's L. J. 549 (2002). Schepard, Andrew, _Revising 'Alison D.': Child Visitation Rights for Domestic Partners_, NY Law Journal, June 27, 2002, p. 3. Schilder, Nicole, _Anti-Vibrator Legislation: The Law is on Shaky Ground_, 29 Hastings Const. L. Q. 89 (Fall 2001) (ha ha ha). Turner, Alex, _The Denial of Benefits to the Same-Sex Domestic Partners of State Employees: How Do Claims of Discrimination Fare Outside the Shadow of ERISA Preemption?_, 4 U. Pa. J. Labor & Emp. L. 669 (Spring 2002). Voss, Andreas S., _The Right to Privacy & Assisted Reproductive Technologies: A Comparative Study of the Law of Germany and the U.S._, 21 NYLS J. Int'l & Comp. L. 229 (2002). Zahner, Adrianne K., _A Comprehensive Approach to Conflicts Between Antidiscrimination Laws and Freedom of Expressive Association After_ Boy Scouts of America v. Dale, 77 Chicago-Kent L. Rev. 373 (2001). _Specially Noted:_ Vol. 21, No. 3 of Law & Philosophy (A Kluwer journal) features a symposium on Edward Stein's book, The Mismeasurement of Desire: The Science, Theory and Ethics of Sexual Orientation. The symposium includes a summary of the main ideas in his book by Stein, discussions by Martha Nussbaum and Ian Hacking, and a response by Stein. Individual articles are listed above. Stein is an articulate exponent of the social construction approach to the issue of sexual orientation in the context of law. * * * Vol. 6, No. 2 of the Canadian journal, Review of Constitutional Studies (2002), focuses on the Canadian Charter of Rights and various issues concerning its proper role within the Canadian legal system. The Charter has been an important tool for judicial empowerment of lesbian and gay equality in Canada, even though it says nothing directly about lesbians and gay men or sexual orientation as such. Articles by Lorraine E. Weinrib, Richard H. Pildes, Hester Lessard, Robin West, Donna Greschner, and Ruth Colker. AIDS & RELATED LEGAL ISSUES: Amarasekara, Kumar, and Mirko Bagaric, _The Vacuousness of Rights in the Euthanasia Debate_, 6 Int'l J. Hum. Rts. 19 (Spring 2002). Berger, Mark, _Rethinking the Legal Oversight of Benefit Program Exclusions_, 33 Rutgers L. J. 227 (Winter 2002). Burris, Scott, _Disease Stigma in U.S. Public Health Law_, 30 J. L. Med. & Ethics 179 (Summer 2002). Correa, Carlos Maria, _Unfair Competition Under the TRIPS Agreement: Protection of Data Submitted for the Registration of Pharmaceuticals_, 3 Chicago J. Int'l L. 87 (Spring 2002). Felgueroso, Jose, _TRIPs and the Dispute Settlement Understanding: The First Six Years_, 30 AIPLA Quarterly J. 165 (Spring 2002). Hoen, Elen 't, _TRIPS, Pharmaceutical Patients, and Access to Essential Medicines: A Long Way from Seattle to Doha_, 3 Chicago J. Int'l L. 27 (Spring 2002). Klein, Andrew R., _Fear of Disease and the Puzzle of Future Cases in Tort_, 35 U.C. Davis L. Rev. 965 (April 2002). Lazzarini, Zita, Sarah Bray, and Scott Burris, _Evaluating the Impact of Criminal Laws on HIV Risk Behavior_, 30 J. L. Med. & Ethics 239 (Summer 2002). Maniskas, Richard A., Bragdon v. Abbott_: The Case in Which Reproduction Was Ruled to Be a Major Life Activity Under the Americans With Disabilities Act_, 10 Widener J. Pub. L. 215 (2001). Mook, Jonathan R., Toyota v. Williams_: The Disability Analysis Continues_, 28 Emp. Rel. L. J. 25 (Summer 2002). Sykes, Alan O., _TRIPS, Pharmaceuticals, Developing Countries, and the Doha "Solution"_, 3 Chicago J. Int'l L., 47 (Spring 2002). Thomas, Archibald J., III, _How to Seek Reasonable Accommodation in the Workplace for a Physical or Mental Disability_, 2 Employee Rts. Q. 46 (Spring 2002). Torres, Mary Ann, _The Human Rights to Health, National Courts, and Access to HIV/AIDS Treatment: A Case Study from Venezuela_, 3 Chicago J. Int'l L. 105 (Spring 2002). _Student Notes & Comments:_ Bailey, Theodore C., _Innovation and Access: The Role of Compulsory Licensing in the Development and Distribution of HIV/AIDS Drugs_, 2001 J. L., Tech. & Pol. 193 (Spring 2001). Collins, Beth, _The Americans With Disabilities Act: Rehabilitation Congressional Intent_, 28 J. of Legis. 213 (2002). DeAgostino, Sienna, Board of Trustees of the University of Alabama v. Garrett_: The Decision's Impact on the Americans With Disabilities Act_, 79 U. Detroit Mercy L. Rev. 281 (Winter 2002). Vaughan, Susan Vastano, _Compulsory Licensing of Pharmaceuticals Under TRIPS: What Standard of Compensation?_ 25 Hastings Int'l & Comp. L. Rev. 87 (Fall 2001). EDITOR'S NOTE: This is the annual Summer Issue of Law Notes. The next issue will be the September issue, which will be mailed to subscribers after Labor Day. * * * All points of view expressed in _Lesbian/Gay Law Notes_ are those of identified writers, and are not official positions of the Lesbian & Gay Law Association of Greater New York or the Legal Foundation, Inc. All comments in _Publications Noted_ are attributable to the Editor. Correspondence pertinent to issues covered in _Lesbian/Gay Law Notes_ is welcome and will be published subject to editing. Please address correspondence to the Editor or send via e-mail. ^Z