LESBIAN/GAY LAW NOTES
ISSN 8755-9021 October 2003

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 Bernstein, Esq., New York City; Joshua Feldman, Student, NY Law
School '05; Joseph Griffin, Student, NY Law School '05; Alan J. Jacobs, Esq., New York City;
Steven Kolodny, Esq., New York City; Todd V. Lamb, Esq., New York City; Mark Major, Esq.,
New Jersey; Sharon McGowan, Esq., Washington, D.C.; Tara Scavo, Alumna, NY Law School
'03; Daniel R Schaffer, New York City; Audrey E. Weinberger, Student, NY Law School '05;
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@earthlink.net.  Inquire for subscription rates.

(C) 2003 by the Lesbian & Gay Law Association Foundation of Greater New York.

11TH CIRCUIT DUMPS ALABAMA SODOMY LAW CHALLENGE ON STANDING
GROUNDS   

A panel of the U.S. Court of Appeals for the 11th Circuit unanimously ruled on Sept. 11 that a
pending challenging to the constitutionality of the Alabama sodomy law was correctly dismissed
by the district court for lack of standing prior to the Supreme Court's decision in _Lawrence v.
Texas_, 123 S.Ct. 2472 (2003). _Doe v. Pryor_, 2003 WL 22097758.   The opinion for the court
by Circuit Judge Carnes ridiculed the plaintiffs for persisting with the case in light of
_Lawrence_, seizing upon a written admission by the named defendant, Alabama Attorney
General William H. Pryor, Jr., that as a consequence of _Lawrence_ the sodomy law could not be
legally enforced against consent adults for private sexual activity.

The case was brought a while ago by two anonymous gay men and two anonymous lesbians. 
Three of the plaintiffs alleged that the statute violated their First Amendment rights.  The fourth,
J.B., a lesbian mother who had lost custody and suffered restrictions on her visitation, also
alleged an equal protection violation, noting that Alabama courts had relied on the sodomy law in
determining her fitness for custody and placing restrictions on the presence of her partner during
visitation with her children.  

It was clear from his introductory remarks that Judge Carnes saw no reason for a court to have to
deal with the merits of this case. "In the wake of the _Lawrence_ decision," he wrote, "the statute
has been declared dead by the Alabama Attorney General, who as the chief law enforcement
officer of the state ought to know.  But the corpse is not dead enough to suit the plaintiffs, who
want the federal courts to drive a stake through its heart by adding our pronouncement to the
Attorney General's.  For the reasons that follow, they don't have standing to get us to speak on
the subject beyond what we must say in order to dispose of their appeal from the district court's
dismissal of their complaint for lack of standing."

District Judge Ira De Ment had found that there was no record of recent prosecutions under the
statute for private, adult consensual activity, thus the plaintiffs could not allege any reasonable
fear of prosecution under the statute for such conduct.  

In reviewing this decision, Carnes first took the question of J.B.'s standing to bring an equal
protection claim, based on the adverse decisions against her in the custody and visitation
litigation.  Finding that "all of her alleged injuries arise out of the Alabama custody proceeding,"
Carnes asserted: "Even if we assume that all of those alleged injuries meet the _Lujan_ injury-in-
fact requirement, she still does not have standing to bring this claim because her injuries are not
fairly traceable to the Alabama Attorney General and they cannot be redressed through this action
against him."   Since the Attorney General was not a party to the custody proceeding, and there
was no indication that the state had ever prosecuted J.B. for sodomy, Carnes agreed with the
district judge that J.B.'s claim of standing was fatally flawed.

Finding that Attorney General Pryor had never threatened to prosecute J.B., Carnes observed,
"To the contrary, in the wake of the Supreme Court's _Lawrence_ decision, he now concedes
that section 13A-6-65(a)(3) is unconstitutional, in his words, 'to the extent that it applies to
private, legitimately consensual anal and oral sex between unmarried persons,' which is the only
kind J.B.'s allegations cover.  Because there is no 'challenged action' by the Attorney General,
J.B.'s injuries are not "fairly traceable" to the only defendant before the Court." Carnes also
asserted that an injunction against the Attorney General prohibiting enforcement of the statute by
his office would not "change the result J.B. suffered in the state court custody proceeding."
Carnes took the humble   and technically correct   position that rulings on the constitutionality
of state laws by inferior federal courts have no binding precedential authority in the state courts. 
Only the U.S. Supreme Court can issue a binding decision on the unconstitutionality of a state
law, according to Carnes, and therefore the U.S. District Court in Alabama and the 11th Circuit
are without authority to provide any remedy for the wrong suffered by J.B.

Carnes pointed out that the Supreme Court's decision in _Lawrence_ should suffice   together
with Pryor's concession   to persuade Alabama courts that their sodomy law can no longer be
relied on as a basis for ruling in a custody case.  He commented that if _Lawrence_ did not
suffice, it was unlikely that anything the 11th Circuit or the District Court would say on the matter
would carry more weight with the state courts.  

In light of Pryor's concession, it was easy for Carnes to find that none of the plaintiffs now face a
credible threat of prosecution under the law, thus precluding their having standing to seek a
declaration from the federal court as to its constitutionality. "Besides," he wrote, "we are not
going to turn a blind eye to recent events which establish that there is no credible threat of
enforcement of section 13A-6-65(a)(3).  The United State Supreme Court has held that statutory
prohibitions on consensual sodomy like the Alabama statute are unconstitutional because they
infringe upon the rights of 'adults to engage in the private conduct in the exercise of their liberty
under the Due Process Clause of the Fourteenth Amendment.'  The Alabama Attorney General
has expressly conceded in supplemental briefing to this Court that the Supreme Court's decision
in _Lawrence_ renders section 13A-6-65(a)(3) unconstitutional 'to the extent that it applies to
private, legitimately consensual anal and oral sex between unmarried persons,' which is all that
these plaintiffs are concerned about.  The Alabama Attorney General is the chief law
enforcement officer of the state and has supervisory authority over every district attorney in
Alabama.  Because there is no credible threat of enforcement of section 13A-6-65(a)(3), the
plaintiffs have no standing to challenge that statute on First Amendment grounds."

The lead counsel for the plaintiffs, James Garland, an instructor at Hofstra University Law
School, contends that the court got the standing analysis wrong in J.B.'s case.  He points out that
in the custody and visitation cases before the Alabama courts, there was no allegation that J.B.
had engaged in anal or oral sex with her partner or anybody else, and that the court's reliance on
the sodomy law in those cases had given it a more expansive harmful effect, going beyond the
specific sex acts as to which A.G. Pryor has conceded the law's inapplicability in light of
_Lawrence_.  However, it seems unlikely that the 11th Circuit would go en banc for a dispute of
this type, or that the Supreme Court would be interested in reviewing this ruling on the standing
question.  A.S.L.

LESBIAN/GAY LEGAL NEWS 

Ninth Circuit Revives Suit by Gay Air Force Psychiatrist

The United States Court of Appeals for the Ninth Circuit has breathed new life into the
constitutional claims of a gay psychiatrist who is fighting the United States Air Force's efforts to
recover from him, after he was discharged from the military for coming out of the closet, the
money that it outlaid for the cost of his medical education. _Hensala v. Dep't of Air Force_, 2003
WL 22128924 (Sept. 12). Reversing in part the decision of U.S. District Judge William H. Alsup
(N.D. Cal.), the majority of the divided appellate panel concluded that Hensala should have the
opportunity to prove that the military applies its recoupment policy against former service
members discriminatorily on the basis of sexual orientation, in violation of the First Amendment
free speech and federal Equal Protection.

Under the Armed Forces Health Professional Scholarship Program, the military pays for medical
education in exchange for an enforceable commitment to serve on active duty in the armed forces
as a physician for an agreed upon period of time. Under the program, the military has the right to
recuperate the costs of the service member's education if she or he "voluntarily or because of
misconduct" fails to complete the period of active duty specified in the agreement. (Since 1957,
misconduct under the Uniform Code of Military Justice has included sex between service
members of the same gender.)  In 1994, the Deputy Secretary of Defense issued a memo
clarifying that while a service member who comes out of the closet   and fails to prove that he or
she is celibate   is subject to discharge under the "Don't Ask, Don't Tell" policy, the military
only seeks recoupment if the service member "made the statement [coming out of the closet] for
the purpose of seeking separation."

Hensala is a psychiatrist and a former Air Force Reserve captain who participated in the
scholarship program. He graduated from Northwestern University Medical School in 1990, and
was appointed Captain in the Air Force Reserve, Medical Corps. After his graduation, he
requested and was granted two deferments of active duty so that he could complete a three-year
psychiatric residency and a two-year fellowship in child psychiatry. In 1994, the Air Force
notified Hensala that his active duty would begin in 1995. Soon afterwards, Hensala advised the
Air Force that he was willing to perform his required active duty service, but was gay and
intended to live with his partner while serving. At first, Hensala's commanding officer said that
this was acceptable as long as Hensala did not bring his partner to the housing office and did not
publicize their relationship. Ultimately, however, by 1997 the Air Force had conducted an
investigation concerning Hensala's statement that he was gay, appointed counsel to represent him,
concluded after a recorded interview that Hensala had informed the Air Force of his sexual
orientation in order to avoid active duty, discharged him and ordered him to repay $71,429.53
pursuant to the recoupment policy. Hensala did not contest his discharge, but petitioned to have
the recoupment order rescinded.

When that petition was denied in April of 2000, he sued the government, alleging that the
recoupment order violated the Administrative Procedure Act, his procedural due process and
equal protection rights and his right to freedom of speech. In May 2001, the district court granted
the Air Force's motion for summary judgment. The Court of Appeals affirmed the lower court's
dismissal of Hensala's APA and due process claims, but reversed and remanded the case as to his
equal protection and free speech claims.

In support of his APA claim, Hensala argued that the administrative determination to seek
recoupment against him lacked an adequate factual foundation. The appellate panel unanimously
disagreed. Writing on behalf of himself and Judge Richard A. Paez, Judge Sidney R. Thomas
wrote that under the deferential arbitrary and capricious standard of review, the facts supported
the Air Force's determination, based on its internal policies. The conclusion that Hensala came
out of the closet in order to induce his own separation from the military was "supported by
inferences drawn from the timing of Hensala's disclosure and [the investigating officer's] credibility
determination," Judge Thomas explained. 

The Court of Appeals deferred ruling on Hensala's appeal until three months after the United
States Supreme Court issued its decision in _Lawrence v. Texas_, 123 S.Ct. 2472 (2003), that
state anti-sodomy laws violate the 14th Amendment's Due Process Clause. The panel even invited
supplemental submissions from the parties as to the impact of _Lawrence_ on their claims and
defenses.  Hensala raised an alternate APA argument based on _Lawrence_   that the recoupment
policy could not be enforced because it was "contrary to a constitutional right." The panel chose
in the end not to address this argument on the merits, although Judge Thomas noted: "We do not,
of course, preclude the parties from pursuing the claim on remand." 

As for his due process claim, Hensala argued that there was a presumption that any service
member's statement declaring her or his sexual orientation constituted an irrebuttable finding of
the service member's intent to separate from the military, despite a written policy providing for
individualized findings. Here, too, the appellate court disagreed: "Even viewing the evidence in
the light most favorable toward Hensala, the record demonstrates that the Air Force orders
recoupment after individualized determinations of intent and does not, in policy or in practice,
circumvent the investigation by applying an irrebuttable presumption." 

Hensala persuaded the majority of the panel that he should be given the opportunity to pursue his
equal protection and free speech claim, based on the argument that unlike the "Don't Ask, Don't
Tell" policy, the recoupment policy focuses on sexual orientation, not on alleged conduct.  Judge
Thomas wrote that "there are genuine issues of material fact as to whether the recoupment policy
applies exclusively to service members who are gay [or lesbian] and not simply to all service
members who violate [the rule against same-sex sexual conduct]  If it is demonstrated that the
armed forces is discriminating based on status, Hensala's equal protection and first amendment
claims present genuine issues that need to be resolved at trial."

Judge A. Wallace Tashima dissented from that portion of the court's ruling that resuscitated
Hensala's equal protection and First Amendment claims, concluding that Hensala simply had not
lived up to his end of the bargain with the Air Force. He explained: "John Hensala received a free
medical education at taxpayer expense to the tune of $71,429.53. In return, he promised to serve
as a physician in the United States Air Force for four years. Quite simply, Hensala refused to
perform his part of the bargain   he reneged on his promise. Because I can see no legal reason
why Hensala should not be held to his bargain and required to repay the government for his
medical education, I dissent from so much of the majority opinion as remands this case for
further proceedings."

It is difficult to imagine how Hensala will be able to develop an adequate record to succeed on
his equal protection and free speech arguments. It appears he will have to demonstrate either that
the Air Force (i) has declined to enforce its recoupment policy against heterosexual service
members who were discharged from the military for violating the rule against same-sex sexual
conduct; or (ii) enforced the recoupment policy against celibate lesbian or gay service members.
Has the Court of Appeals merely given false hope to Hensala and others in the same
predicament? Will the case be decided on the facts at all, or will the district court rule in
Hensala's favor in light of the Supreme Court's decision in _Lawrence_? The answers to these
questions are sure to come in the not too distant future. 

Hensala was represented on appeal by Stephen L. Collier and Richard DeNatale, Clyde J.
Wadsworth, Christopher F. Stoll, Edward E. Schiffer, and Jo Ann Hoenniger of Heller Ehrman
White & McAuliffe. The United States Air Force was represented by Anthony J. Steinmeyer, E.
Roy Hawkens and Cpt. Andrew LeBlanc. _Ian Chesir-Teran<MD> 

Anti-Gay Group Can Sue Over Transit Ads

Three judges of the U.S. Court of Appeals in Atlanta ruled on September 9 in _Focus on the
Family v. Pinellas Suncoast Transit Authority_, 2003 WL 22078076 (11th Cir.), that Focus on the
Family, a group that claims that "homosexuality" is a preventable condition, can sue the Pinellas
County, Florida, Suncoast Transit Authority over a decision by a county contractor, Eller Media,
Inc., against putting Focus ads on the Authority's bus-stop shelters early in 2000.  Eller, under
contract with the Authority to avoid any political or controversial advertising on the shelters, had
refused the ads on the grounds that they would be controversial and offensive to some members
of the public.  Focus claims its First Amendment rights were violated.

The contract between the Transit Authority and Eller forbids any advertising that involves a
"political or socially embarrassing subject,<!70> and specifically states: "Advertisements of a
political or editorial or election nature are prohibited."  In January 2000, a representative from
Focus on the Family contacted Eller to inquire about placing advertisements on bus shelters to
promote a conference that Focus would be holding that spring in the Tampa-Clearwater area. 
The conference was going to be titled Love Won Out, and the posters would describe the
conference as "addressing, understanding and preventing homosexuality in youth," with this text
printed over a close-up picture of a human face.  

Focus claims that it faxed a copy of the advertisement to an Eller representative, who approved
it.  Eller sent Focus its standard form contract, which a Focus staff member signed and returned
to Eller.  Focus had bus shelter-size ad placards printed up, but before they could be installed, the
Eller employee contacted Focus and said that the advertisements had been rejected because the
Transit Authority did not like the word homosexual appearing on the advertisement.  When the
director of the conference contacted another Eller representative, she was told that the TA
rejected the ad because it was too political. Further inquiry brought a denial from Eller managers
that the TA had been consulted, and an assertion that Eller rejected the ad on its own.  

The TA contends that the General Manager of Eller's Clearwater office rejected the ad because,
quoting the court, "the notion that homosexuality is preventable is highly controversial and
potentially offensive."  In a deposition, the Eller manager, Wayne Mock, testified that he was not
basing his decision on the contract with the TA, but rather on Eller's own internal policies,
including policies spelled out in their form contract, which Focus had signed.  Eller returned
Focus's payment for the ad space, and returned the placards.

Focus first sued the TA in the state court in Pinellas County under a state public records law,
attempting to compel disclosure of records concerning Eller's management of the advertising
space on the TA's bus shelters, but the state courts rejected the lawsuit, finding that Eller was a
private company so its internal records were not subject to the public records law.  Then Focus
filed suit against the TA in the U.S. District Court, claiming that the rejection of its
advertisement violated the First Amendment.  Focus charged that any content-based censorship
of advertising based on its political stance violated Focus's right to freedom of speech, and
sought an injunction to compel acceptance of  its advertising for the bus shelters.  It also wanted
an injunction blocking the enforcement of the agreement between Eller and the TA restricting the
content of bus-shelter advertising.

The federal trial judge granted judgment to the defendants, finding that in this case the decision
to reject the ads was solely made by Eller, a private company, which was not subject to the First
Amendment, since that provision of the Constitution restricts only government or state action. 
The trial judge also concluded that Focus did not have standing to challenge the constitutionality
of the contract between Eller and the TA, since it could not establish that it had suffered any
recognizable legal harm or would suffer such harm in the future just by virtue of the existence of
that contract.

In its September 9 ruling, the federal court of appeals sharply disagreed with this analysis.

Writing for the court, Judge Stanley Marcus found that the trial court "erred to the extent it
concluded that Focus had not suffered a concrete, particularized injury in fact."  Judge Marcus
observed that Focus spent money to prepare the advertising placards, which it could not use, and
was denied the opportunity to publicize its conference, thus likely losing some of the potential
attendance.  Marcus also found that the trial judge should not have concluded as a matter of law
that the TA had nothing to do with rejecting the ads, pointing out that according to Focus, the
first two Eller employees to whom it had spoken both said that the TA had rejected the ads, and
thus Focus had sufficiently alleged that there was some connection between the TA and the
decision to reject its ads, even though Eller's manager claimed to have made the decision without
consulting the TA.

The trial court had also premised the denial of injunction relief on the fact that the conference
had already occurred by the time the case came before the court for decision, so there was no
reason to issue an injunction affecting future conduct by Eller or the TA.  But Judge Marcus
explained that Focus has alleged that it plans to hold future conferences in the area and will be
seeking to advertise again in the future, so prospective relief is also relevant to its case.

Perhaps more significantly, the appeals court rejected the trial judge's conclusion that Focus had
failed to show that any governmental action was involved in turning down the ads.  Since the
trial judge's ruling came on a motion for summary judgment before any trial had been held, the
issue for the court was whether there was a genuine controversy about whether the TA had been
involved in the decision.  If so, then a trial would be needed to resolve the controversy.  

In this case, the question was whether Eller's decisions about which ads to reject for the bus
shelters could be "imputed" to the state for purposes of determining that rejection of the ads was
a governmental action subject to the First Amendment's protection for freedom of speech.  Based
on prior U.S. Supreme Court decisions, Marcus found that it was possible that Focus could prove
at trial that the necessary connection between the TA and Eller could be found to meet this
requirement. "In short," he wrote, "there is palpable evidence that this is not a case where a
private actor in a contractual relationship with a governmental entity acted independently in
harming a third party, but rather that the state, acting through the private entity, caused the third
party's harm."  Explaining further, Marcus asserted that when a contract obligates a private entity
to take certain actions by direction of the government, an argument can be made that the private
entity is acting as a surrogate for the government.  The issue to be determined at trial would be
whether Eller officials took the action they did in order to comply with the TA's policy of
avoiding political or controversial or embarrassing messages on the bus shelters.  

Another argument the TA made was that the lawsuit should be dismissed because Focus had not
sued Eller.  The TA claimed Eller was an indispensable party, because unless Eller is a party to
the case, the court can't order Eller to accept the ads in the future.  TA pointed out that its
contract with Eller did not obligate Eller to accept ads at the direction of the TA, so it was
possible that an injunction that ordered the TA to accept Focus's ads would not be binding on
Eller. 

Judge Marcus agreed that it would make sense for Eller to be in the case, but did not find that
this was a basis for dismissing the lawsuit.  Since Eller's office is located within the district,
there is no barrier to joining Eller as a co-defendant, and the trial judge could just order Focus to
amend its complaint to make Eller a co-defendant with the TA, as a condition of allowing the
case to continue.  

The appeals court ordered that the case be revived, and that the trial judge afford Focus an
opportunity for a decision on the merits of its claim that its First Amendment rights were
violated.

Since large public transit authorities routinely contract the function of placing advertising on
their facilities to private media companies, this case concerns a recurring issue of concern to gay
organizations as well as anti-gay organizations.  The same principles that Focus is trying to
invoke could be relevant if an advertising contractor wanted to reject a gay pride month
advertisement.  As obnoxious as Focus's ads would be to many people, especially gay people,
vindicating the principle of content-neutrality in access to public forums is important for gay
groups seeking to bring our messages to the public.  A.S.L.

California Substantially Expands Domestic Partner Rights

On September 19, California Governor Gray Davis signed into law A.B. 205, a bill that
significantly expands the rights and responsibilities of domestic partners, bringing that status
very close to the Vermont Civil Union in terms of bestowing those rights that can be given under
state law to same-sex partners.  A 1999 measure, also supported by Davis, had already
established a domestic partnership registry system for same-sex couples in California, but only
provided a limited number of rights for same-sex partners, which had been expanded in some
subsequent enactments.  The new law, authored by Assemblymember Jackie Goldberg of Los
Angeles, significantly moves toward providing registered same-sex partners with almost all of
the same rights that married couples have under California law, the main exception being that
they will continue to be considered individuals for purposes of the state tax laws.  It also
establishes that domestic partners will have the same potential liability for the debts of their
partners, and attendant support obligations, as are now imposed on married couples. 

The measure goes into effect on January 1, 2005.  The long lead-time was considered necessary
to allow those couples who are already in registered partnerships to decide whether they want to
terminate them in light of the additional responsibilities that will be attached to this status.  _San
Francisco Chronicle_, _Los Angeles Times_, _Associated Press_, Sept. 20.

While the Vermont law was historic in being the first state law to create a status virtually equal to
marriage for same-sex partners, Vermont is one of the smallest states, with only about 630,000 in
population, much less than one percent of the nation's population.  California, by contrast, is the
largest state, whose 34.5 million residents make up 12 percent of the nation, according to an op-
ed article by E.J. Graff that appeared in the _Boston Globe_ on Sept. 29, highlighting the
massive social importance of what California has done.  A handful of couples with Vermont civil
unions have presented issues to courts in other states about recognition, with mixed results.  One
imagines, given the sheer size of California and the number of couples who already have
reportedly registered their unions since that was possible in 1999 (about 22,000, according to
Graff, compared to 776 civil-union couples thus far in Vermont), that we will soon see many
cases around the country of California domestic partners seeking recognition of their status for a
variety of purposes while traveling or after relocating to other states.  A.S.L.

Lesbian Co-Parent Denied Visitation But May Pursue Adoption

An Illinois appellate court rejected a lesbian mother's theory that she had standing, either _in
loco parentis_ or as a _de facto_ parent, to seek visitation with the biological children of her
former domestic partner.  However, the court did vacate the dismissal, obtained ex parte by the
biological mother, of a co-parent adoption petition as violating procedural due process. _In re
Adoption of A.W., J.W., and M.R., Minors_, 2003 WL 22070543 (Ill.App. 2 Dist., Sept. 4).

R.H. and E.W. were cohabiting domestic partners when, through donor insemination, E.W.
conceived and bore three children.  In 1999, they jointly filed a verified petition for the related
adoption of the minor children. In 2001, they amended the petition, stating that E.W.'s signature
showed her consent.  In 2002, E.W. refused her consent to adoption by R.H., and obtained an ex
parte order dismissing the adoption petition.  Some months later, R.H. petitioned, seeking to
reinstate the adoption petition, and to obtain visitation and a mediation referral. 

R.H. averred that, at the time each child was born, she and E.W. were co-parents and together
had cared for the children since each child's birth.  R.H. alleged that she had no notice that E.W.
had moved ex parte to dismiss the adoption petition.  R.H. further alleged that at the court
appearance for presentation of the adoption petition in 2001, she, E.W., and the children were
taken into the trial court's chambers, where the trial judge indicated verbally that the adoption
was final. R.H. stated her belief that the adoption was final at that time, until she was told by
E.W. in 2002 that it was not. There is no final order of adoption in the record.

The trial court denied R.H.'s petition to reinstate the adoption petition, finding that, since E.W.
had the absolute right to withdraw consent, no notice was necessary. The appellate court,
however, vacated the order dismissing the adoption petition, finding the order void. The court
explained that procedural due process requires that original parties to an action, who have not
been defaulted, be given notice of motions. Court rules require written notice and a certificate of
service.  E.W. had unsuccessfully argued that notice to R.H. should be construed from E.W.'s
statement of intent to the lawyer who represented both women on the original petition.

The appellate court affirmed the trial court's denial of visitation and mediation referral. The
court's review of the question of R.H.'s standing to seek visitation turned on the determination
(reached in a 1999 lesbian co-parent adoption case, _In re Visitation with C.B.L._, 309
Ill.App.3d 888) that the specific visitation provisions of the Illinois Marriage and Dissolution of
Marriage Act (the Act) do not simply codify common law but are to be understood as the sole
source of standing for visitation. R.H. conceded that the Act does not specifically grant her
standing, and the court "decline[d] to go where the legislature has not led." _Mark Major_ 

Boston Court Allows Defamation Claim to Continue Against Gay Weekly Paper

_Bay Windows_, a weekly Boston newspaper aimed at the lesbian and gay community, will have
to defend against a claim that it defamed a local businessman, David Shephard, and Shephard's
public relations firm, by publishing an article that the court believes could be construed by
readers to have suggested that Shephard and his company acted improperly in handling payments
intended for one of their clients, the Greater Boston Business Council (GBBC). _Shephard v.
Bay Windows, Inc._, 2003 WL 22225764 (Mass. Super. Ct., September 22, 2003).

Massachusetts Superior Court Justice Judith Fabricant scrutinized a multitude of claims by
Shephard focusing on various statements appearing in a June 22, 2000, article published by _Bay
Windows_ concerning the resignation of GBBC's president amidst allegations of conflict of
interest and possible financial mismanagement at GBBC.  While Fabricant granted summary
judgment against Shephard on most of his claims, she concluded that in this one particular the
newspaper may be liable for damages, depending on factual proof at trial.

Shephard started his public relations firm in 1996 and joined GBBC, a non-profit gay community
chamber of commerce, soon acquiring a contract to manage GBBC's advertising sales.  Under
the contract, Shephard's company was responsible for selling advertising for the organization's
newsletter and dinner program book, and to round up sponsors for GBBC events. Justice
Fabricant noted that Shephard was "quite successful" in fulfilling this contract, having generated
about $100,000 annually in advertising and sponsorship for GGBC, and earning substantial
commissions on those sales.

There was a vacancy on the GBBC board in 1997, and Shephard was proposed to fill it. 
Concerned that this might present a conflict of interest, the board sought an opinion from its legal
counsel, who stated that there would not be a conflict.  (The court's opinion does not go into this
in any detail, but presumably counsel advised that because Shephard's business interests under
his contract were well-known to all the board members, such full disclosure obviated a legal
conflict of interest, as long as Shephard didn't vote on any issues in which he or his firm had a
direct interest.)  The board voted to appoint Shephard to the vacancy, and he has been re-elected
regularly since then, although the conflict issue was raised and discussed during the re-election
processes.

In 2000, the GBBC board elected Lori Pilcher for a two-year term as president.  Pilcher worked
as an audit manager for a federal agency, and she was determined to make GBBC's finances her
particular focus, but claims to have encountered difficulties in getting information from Shephard
about his activities for the organization.  Pilcher also raised again the conflict of interest issues
concerning Shephard.   On May 11, 2000, Pilcher resigned as president because she "felt
uncomfortable about the financial situation," according to her deposition in the lawsuit.  She said
that her continued difficulties in getting information from Shephard played a significant part in
this, although Shephard, in his deposition, testified that he submitted information but that Pilcher
had objected to the format.  

Although Pilcher and the GBBC board agreed to keep the story of her resignation confidential
until after the organization's annual awards dinner, the story leaked to _Bay Windows_, which
assigned reporter Beth Berlo to write an article.  Berlo interviewed many of the relevant people,
including Shephard and Pilcher, and her article was published on June 22.  Shephard claims the
article defamed him in a variety of ways, which all boiled down in their essence to
communicating to readers that Shephard had engaged in wrongdoing in his simultaneous
positions as board member and contractor of GBBC.  Shephard also claimed that the article
invaded his privacy by publishing the amount of money he was receiving from GBBC, and that
the newspaper had been negligent in publishing various inaccuracies.

Finding that Shephard and his company are "public figures" for purposes of this litigation,
Justice Fabricant concluded that under Massachusetts law he would have to prove that the
newspaper acted with "actual malice" in order to hold it liable for the defamatory effect, if any,
of the article, meaning that he would have to show that the newspaper published either with
actual knowledge of the untruth of its allegation or with reckless disregard as to their truth.

Justice Fabricant found that some of the statements in the article that Shephard regarded as
defamatory were assertions of opinion or were not calculated to convey to readers any criticism
of Shephard, but rather of GBBC in its dealings with him, and thus could not be the basis of
damages.

But the judge found that one paragraph, which can be read to accuse Shephard of
"misappropriating funds" by accepting checks made out to his business that should have been
made out to GBBC, could be the basis of a libel claim. "The statement, read in a natural manner
according to its plain terms, is susceptible of the meaning that Shephard and his company
received and kept funds intended for and rightfully belonging to GBBC.  That construction draws
support from the overall tenor of the article, with its emphasis on alleged financial improprieties. 
As so construed, the sentence would certainly tend to hold the plaintiffs up to contempt and to
impair their standing among a considerable and respectable class of the community."

But this is not yet a win for Shephard, in light of the judge's finding that he and his company are
public figures.  The issue remains whether the statement was published with actual malice, and
on this Justice Fabricant found that neither party had yet provided sufficient evidence for a
decision.   The article stated that the reports about Shephard accepting the checks were
"unconfirmed" and that "proof" was lacking.  Berlo based these reports on her interviews with
the former president, Pilcher, and a former board member who had leaked Pilcher's resignation
letter to the newspaper, having obtained a copy from another board member.  

Shephard testified in his deposition that one advertising purchaser had mistakenly made a check
out to his firm, but that he had endorsed it over to GBBC and sent it to the organization without
cashing it, and he also testified that when reporter Berlo asked him the identity of that purchaser,
he had refused to identify the purchaser to protect its confidentiality.  Berlo, by contrast, recalled
that Shephard stated he did not remember which client had sent the check, and reported it that
way.

Thus, Shephard contests the "unconfirmed" report, and alleges that the newspaper, through
Berlo, knew that he disputed it.  On the issue of actual malice, however, the question is whether
the newspaper printed the allegation either with knowledge that it was false or with reckless
disregard as to whether it was false.  Justice Fabricant found that the record at this point would
not support a conclusion that the newspaper knew the allegations were false, "but would permit,
although not compel, a jury to infer that the defendant entertained serious doubts as to the truth
of the statement.  That inference would support a finding of malice.  Accordingly, the plaintiff is
entitled to a trial on his claim of libel with respect to this passage."

Fabricant also found that if Berlo had misreported that Shephard said he could not recall the
identity of the advertising purchaser in question, that would add to the defamatory character of
the allegations, so that statement in the article could also be considered by a jury in determining
the issues of malice and damages.

However, Fabricant rejected Shephard's claim that his right of privacy was violated when the
newspaper published the amount of his commissions.  Since the commissions were paid by the
board of a non-profit membership organization, upon approval of the board, "there can be no
doubt that all sixteen board members knew or had access to the information, and the members of
the organization may have had access as well."  This could hardly be seen as "intimate and
personal" information, as a consequence, according to Fabricant, and thus could not provide the
basis for a claim of invasion of privacy.  Also, since Shephard was found to be a public figure, he
could not claim damages for news reporting that was merely negligent, since the U.S. Supreme
Court has found that the First Amendment shields newspapers from liability for negligent
reporting, so long as defamatory statements are not published with actual malice.

The press plays an important role in casting light on the inner workings of community
organizations that raise money from the public, which helps to explain the high legal barriers
raised against liability for such reporting, even when it may be erroneous.  However, newspapers
are held accountable if they go into print with damaging information when they have not
established an adequate basis for believing that the information is true.  As Justice Fabricant's
opinion makes clear, it is not necessarily enough in such circumstances for the newspaper to
describe the damaging information as unconfirmed, if the editors have some doubts about its
accuracy.  This case shows the tightrope that reporters and editors must walk on occasion in
filling this important watchdog role for the public.  A.S.L.

Federal Court Rejects Summary Judgment Motion from INS in "Sham Marriage" Case

On September 19, U.S. District Judge W. Royal Furgeson in San Antonio, Texas, rejected the
government's attempt to throw out a lawsuit by an Israeli woman seeking permanent resident
status in the United States. _Correa v. Pasquarell_, 2003 WL 22231297 (W.D. Tex.)  Dina Korb
Correa's petition had been denied based on the Immigration Service's conclusion that she had
entered into a sham marriage with a gay man in order to gain U.S. citizenship. 

According to Furgeson's opinion, Dina married Raul Correa, an American citizen, on September
9, 1989, in San Antonio.  On October 11, Raul filed a petition with the Immigration Service
(INS) seeking "immediate relative status" for Dina, so that she could remain in the U.S. while her
petition for permanent residence status was determined.  On April 18, 1991, without any notice
or warning to the Correas, INS agents showed up at their house at a time when Raul was not at
home.  The agents poked around, looking in rooms and closets, and then left without asking any
questions.  On September 4, 1991, the INS sent Raul a notice that it was planning to deny the
petition.  The INS letter said that the "marriage possesses a negative element of such extreme
gravity that it tends, in and of itself, to demonstrate that it is fraudulent."

This "negative element" appears to be that the INS had concluded that Raul and Dina were
"homosexuals," according to Judge Furgeson, and that the marriage was solely to let Dina
become a permanent U.S. resident.  The basis for this conclusion was that Raul and Dina were
living with Dina's brother, Riki Korb, and a woman identified as Limor Levi Korb.  The INS
agents found that there were two bedrooms in the house, each with one bed.  In the rear bedroom,
the closet contained only women's clothes.  In the front bedroom, the closet contained only
men's clothes.  The INS drew the conclusion that the two men were using the front bedroom and
the two women the rear bedroom, and informed Raul that unless he could prove that the marriage
was genuine, the petition would be denied.

Within days, Raul submitted an affidavit stating that he and his wife were sharing the apartment
with Riki and Riki's wife.  He said that he and his wife shared the rear bedroom, but that her
clothes completely filled the closet, so he kept his clothes in the closet in a third bedroom in the
house.  He also stated that Riki and his wife Limor shared the front bedroom.  He also said that
as he and Riki wore the same sizes, they sometimes shared clothes.  He didn't mention where
Limor's clothing was kept.  Raul stated in this affidavit that he had been informed that the INS
agent never looked in the third bedroom or its closet, or in any dresser drawers.  Raul attached a
copy of his 1990 federal tax return to the affidavit.  It showed that he had checked the status
"married filing separately" for 1990.  He also attached copies of family pictures taken at his
wedding, and stated that Dina's parents had not attended the wedding because "as I understand it,
they live in Israel and the government furnishes them vacations every seven years."

On January 22, 1992, the INS rejected the immediate relative petition, releasing a  statement that
repeated what had been said in its original communication and insisting that Raul had provided
"no evidence which can be subjected to in-depth scrutiny for verification."  Reacting to Raul's
statement about why Dina's parents were not at the wedding, the INS said that "such a statement
about the practices of a modern democracy clearly casts a cloud of suspicion over any statement
made in such an affidavit."  The INS characterized the observations of its agents as "clear" and
insisted that "the conclusions that flow from these observations are indisputable."  The INS also
insisted that the wedding pictures proved nothing about the validity of the marriage, merely that a
ceremony had taken place.  The INS noted that Raul's affidavit gave no explanation about why
he and Dina had not filed a joint tax return.  Thus, the INS concluded that there was "reasonable
doubt" about whether the marriage was bona fide.

Raul filed a notice of appeal.  While it was pending, he died on February 14, 1995, from
complications of AIDS.  The INS had the appeal dismissed by the Board of Immigration Appeals
on the ground that Dina was no longer married to an American citizen, but she quickly filed a
new petition seeking permanent status as the widow of an American citizen.  This was turned
down as well, and she filed the lawsuit, claiming that there had never been an appropriate
consideration of the status of her marriage.

Judge Furgeson found that Dina had made some excellent criticisms of the way the INS
functioned in her case.  The regulations provide that when the Service is planning to deny such a
petition, it is supposed to inform the petitioner of the grounds for denial, to offer the petitioner an
opportunity to rebut the information and present information on his behalf.  In addition, the
Service is required to announce its decision "in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely reacted."  In this case, though, Furgeson
found the Service fell down in several particulars.  

The initial notice sent to Raul only mentioned the house inspection, and did not mention any
other basis for doubting the bona fides of the marriage.  Yet, in its final ruling, the service relied
also on the tax filing status, without having asked Raul for any explanation of it, and also appears
to have relied on hearsay and gossip that its agents picked up from neighbors and acquaintances,
none of which Raul was given any opportunity to rebut.  Furthermore, Furgeson criticized the
INS for assuming that because Raul may have misunderstood the Israeli government's policy on
vacations as a reason for Dina's parents not attending the wedding, therefore the credibility of his
entire affidavit was totally undermined.

Furgeson also criticized the use to which the INS put the notes of its investigators. "Comparing
the investigator's notes with the statements in the INS notice reveals no direct evidence of where
any of the parties actually slept," he wrote. "Rather, this conclusion seems to have been drawn on
the basis of the location of 'clothing and personal items.'  It is unclear that Mr. Correa was even
present at the time of the inspection.  In his response to this notice, Mr. Correa attempted to rebut
the conclusions drawn on the basis of the investigation.  Mr. Correa explained that he and his
brother-in-law bought the house jointly.  He stated that his wife's clothes entirely occupied the
closet in his bedroom, and he kept his clothes in a separate closet, which the investigator did not
open.  He further stated that the investigator did not open any of the dresser drawers and did not
ask for any explanations from those present at the time of the inspection.  Additionally, he stated
that he and his brother-in-law shared many articles of clothing because they were the same size."

Yet the INS did not directly address any of this evidence in its statement denying the petition. 
Rather, it stated that the evidence could not "be subjected to in-depth scrutiny for verification." 
This struck the judge as odd, for he commented, "It is unclear to the Court what evidence, apart
from a sworn statement about his courtship and marriage, Mr. Correa was expected to provide to
substantiate his pre-marital relationship." 

Furgeson also expressed puzzlement about the INS relying, on one hand, on "vast sources of
hearsay, anecdotal and circumstantial evidence" to conclude that this was a sham marriage, but to
hold Raul to some standard of verifiability regarding the pictures from his  wedding.  Furgeson
questioned the weight INS gave to Raul's having filed a separate tax return from Dina for which
"no reason was given," when, Furgeson said, "it is unclear why any such reason was required, let
alone that Mr. Correa was made aware of this requirement."  

Furgeson concluded that "the final INS determination raises a question as to the extent to which
this rebuttal evidence was properly considered and weighed by the INS in determining the
validity of Plaintiff's marriage to Mr. Correa, as opposed to merely being given nominal
treatment after a conclusion had already been reached."  Without taking a position on whether
Dina was likely to win her case, Furgeson concluded that questions of "material fact" had been
raised sufficient to require a trial. "The history of this case suggests a succession of procedural
rulings which reinforce and augment the authority of the initial INS determination without
affording Plaintiff an adequate opportunity to challenge, and the Court to review, the validity of
the underlying findings.  Given the significance of this determination in deciding Plaintiff's
ability to remain in this country, the Court finds it prudent to avoid compounding this problem."

This case raises interesting questions about what constitutes a valid marriage for immigration
purposes.  Is it impossible to contemplate that a gay man and a lesbian might want to get married
for a variety of reasons, not including sexual intimacy, and so long as no state law requires that a
man and woman be heterosexuals in order to marry, they are entitled to do so?  Setting aside
whether what the INS investigators observed at the Correa house was such clear evidence that the
men and women were living separately at opposite ends of the house, would this clearly be
determinative of whether they had valid marriages?  (Evidently the status of Rikki and Limor
was not an issue in this case, because it was not mentioned in the INS ruling or explored in the
court's opinion.)  Is a sexual relationship a prerequisite for a marriage to be respected by the
federal government?

Interestingly, in some of the earliest cases in which same-sex partners sought marriage licenses
and claimed that the law was discriminatory, some of the courts responded that there was no
discrimination on the basis of sex or sexual orientation because gay people were free to marry
persons of the opposite sex, and men and women were equally prohibited from marrying persons
of the same sex.  Well, maybe not according to the Immigration Service. . .  A.S.L.

Arkansas Appeals Court Upholds Ten Year Prison Term for Gay Couple Who Had Sex With
Teen Boy

A unanimous three-judge panel of the Court of Appeals of Arkansas, Div. IV, affirmed ten-year
prison sentences for a gay male couple on charges that they sexually assaulted a 16-year-old
teenage boy who was spending the night with them. _Murphy v. State of Arkansas_, 2003 WL
22094596 (Sept. 10, 2003).  The court had to confront as a matter of first impression the
definition of "temporary caretaker" contained in the sexual assault statute.

According to the opinion for the court by Judge Larry D. Vaught, the defendants, Timmy Murphy
and Lewis Ray, are an openly-gay couple who were known to Mark and Sherrie Cater, parents of
the victim.  Murphy would tutor the victim for his biology class.  Murphy and Ray were visiting
the Caters on the afternoon of December 7, 2001, the day before the victim was scheduled to visit
Murphy for a tutoring session.  The victim arrived home from school while the men were there,
and it was agreed that they would take him out for dinner and Christmas shopping and he would
sleep over their house.  At trial, "the Caters testified that they informed appellants that they
accepted their lifestyle but warned the appellants not to 'try anything' with their son.  According
to testimony, appellant Ray assured the Caters, 'we'll keep ourselves to each other and leave your
son alone.  He's just there for the night to have a good time with us.'"  But the son later reported
that the men had "engaged in deviate sexual activity with him, including fondling, oral and anal
sex, upon arriving at their home after dinner and shopping."

The prosecutor originally charged both men with rape, but when it appeared that the conduct may
have been consensual, lowered the charges shortly before trial to sexual assault under a relatively
new statute.  (Arkansas's sodomy law was declared unconstitutional last year in _Jegley v.
Picado_, 80 S.W.3d 332 (Ark. 2002), as applied to private consensual acts between adults.) 
Under the new statute, Ark. Code Ann. Sec. 5-14-124(a), it is sexual assault in the first degree if
the victim is under 18 and, inter alia, the defendant is "a temporary caretaker, or a person in a
position of trust or authority over the victim,170> even though the conduct be consensual.  The
prosecutor argued that Murphy and Ray were temporary caretakers when the victim stayed at
their house overnight with his parents' permission.

The defendants argued that the victim was a social guest and that they were not his caretakers,
but the trial court rejected this argument and was sustained on appeal.  Judge Vaught referred to
some cases from other jurisdictions where defendants were found to have violated similar
statutes when having sex with minor "social guests." 

Wrote Vaught: "The victim in the instant case was a sixteen-year-old minor who lived with his
parents.  There was testimony that he was somewhat developmentally delayed compared to
'normal' children his age and that he did not drive.  From our review of the evidence, the victim
in this case, besides being a year younger, was even more dependent on adult care and
supervision than the victim in [_People v. Kaminski_, 615 N.E.2d 808 (Ill. App. 1993)] was.  It
is undisputed that appellants specifically obtained permission from the victim's parents for him
to leave with them for the express purposes of going out for dinner and Christmas shopping, as
well as to spend the night at their home.  There is testimony that the victim's parents asked for,
and received, assurances from the appellants that they would look after the victim and not 'try
anything' with him.  It is reasonable from the circumstances to infer that the victim's parents
expected appellants to provide food, transportation, safe lodging, and care for their son while he
was with them.  Also, similar to the circumstances in _Kaminski_, appellants would not have had
the opportunity to assault the victim absent his parents' entrusting him to their care."

The court also rejected the argument that the trial court improperly refused to allow a
continuance in order to give the defendants' attorney more time to prepare in light of the change
in the statute under which the defendants were charged.  The change was made just eight days
before trial, and defendants argued that their attorney had been preparing to defend a rape charge. 
The new statute, with no case law, necessitated an all-jurisdictions research task that had not
been anticipated.  But the appeals court held that this was a matter within the discretion of the
trial judge.  Although the court rejected the state's argument that the proof under the two
different charges remained essentially the same, it was satisfied that the trial court "could find
that the appellants' lawyers had sufficient time to research the new issues and were less than
diligent in filing their motion for continuance." A.S.L.

Connecticut Trial Court Finds That California Legal Parent Can Pursue Custody Claim

 Connecticut Judge Antonio C. Robaina ruled in _Davis v. Kania_, 2003 WL 22132724
(Superior Ct., Hartford, Aug. 29, 2003) (unpublished opinion), that a gay man who was
recognized in California as the legal parent of a child born under a surrogacy arrangement,
should be treated as a legal parent in Connecticut for purposes of a custody dispute with the
child's biological father.  The decision relied on a prior unpublished Superior Court decision
from New Haven that involved two Connecticut men who had secured a court order to the
hospital where their child was born requiring that both men be listed on the birth certificate.

In the Hartford case, Robert William Davis and David John Kania, who had been domestic
partners for thirteen years, were contending over custody and visitation for their son.  Judge
Robaina described them in his opinion as "two gentlemen who were involved in a homosexual
relationship."  They had made an agreement in 2000 with Linda Kay Randall, a Los Angeles
resident, to be the surrogate mother for their child.  Each of the men donated sperm and obtained
ova for the attempted fertilization, but the child, named Cameron Leo Davis-Kania,  was
conceived using David's sperm.  A California trial court issued a judgement of paternity on
December 6, 2000, designating David as a biological and legal parent and Robert as a legal
parent of Cameron, with both men identified as such on Cameron's birth certificate.

In September 2002 they moved to Connecticut and soon terminated their relationship.  Cameron
was living mainly with David, and Robert had liberal visitation rights.  David decided to take
Cameron to Greece for three months.  Robert filed an application on April 3, 2003, seeking an
order prohibiting David from taking Cameron out of the country.  Judge Robaina ordered that a
hearing be held on Robert's application.  Then Robert filed another application on April 20,
seeking shared legal and physical custody, as well as an order not to remove Cameron from
Connecticut.

David and Robert made an agreement, dated May 14, 2003, under which David was temporarily
given sole custody and Robert was given liberal visitation rights.  They also agreed that David
would not take Cameron out of the country until Judge Robaina ruled on a motion to dismiss that
David was to file, testing Robert's legal right to seek custody in Connecticut.  The August 29
decision is Judge Robaina's ruling on that motion.

Robaina found that the Superior Court has jurisdiction over this dispute under the Uniform Child
Custody Jurisdiction and Enforcement Act, which authorizes a court to make custody decisions
concerning children who are residing in the state.  The more difficult question was whether
Robert, as a non-biological father who had been deemed a legal parent in California, could rely
on that California judicial determination to seek custody in Connecticut.  David was arguing that
a Connecticut court was not bound to honor the California decree, because it would violate
public policy in Connecticut.

Judge Robaina found that _Vogel v. Kirkbride_, Docket No. FA 02 0471850 (Dec. 18, 2002), the
prior unpublished New Haven trial court order, was relevant here.  In that case, which involved a
similar surrogacy arrangement, the court ordered the hospital to name both men on the child's
birth certificate as legal parents.  The New Haven court found that "the egg donor agreement and
gestational carrier agreement were valid, enforceable and irrevocable under the laws of the state
of Connecticut."  Judge Robaina also relied on a prior Connecticut Supreme Court decision,
_Adamsen v. Adamsen_, 151 Conn. 172, 195 A.2d 418 (19630, stating that a plaintiff could
enforce in Connecticut rights that he had by virtue of the laws of other states so long as no
Connecticut public policy was violated.  In this case, Robaina found, both Robert and David
"were parties to the California action and the judgment does not contravene Connecticut policy
or violate its laws," so Robert "can enforce his  legal right" as a parent in the Connecticut court.

Judge Robaina also found an alternative ground for allowing Robert to sue for custody: equitable
estoppel.  Under this theory, Robaina explained, a party is bound by his past actions when those
actions are "intended or calculated to induce another party to believe in the existence of certain
facts and to act upon that belief" and the other party changes his position in reliance on that.  In
this case, Robaina found that through his actions and words David had led Robert to believe that
he was a legal parent to Cameron, and Robert had certain acted upon that belief.   Under
equitable estoppel, David would be prohibited from taking the position in this case that Robert
was not a legal parent of Cameron.

Thus, Judge Robaina refused to dismiss the case, and Robert will be allowed to pursue his
parental rights in the court proceeding. A.S.L.

Divided 11th Circuit Panel Finds Qualified Immunity Protects College Administrators on Same-
Sex Harassment Charge

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled on September 15 in
_Snider v. Jefferson State Community College_, 2003 WL 22119938, that until the court had
recently ruled that same-sex sexual harassment is actionable under the Equal Protection Clause
against a public employer, officials of the college were not on sufficient notice to charge them
with individual responsibility to redress such harassment by a supervisory employee of the
college.  

The plaintiffs, four male security guards employed by Jefferson State Community College in
Alabama, alleged that between 1983 and 1998 they and other male employees were subjected to
sexual harassment by their supervisor, William Shelnutt, who was Chief of Security at the
college.  They claimed that the defendants, the president and the dean of business operations at
the college, either knew or should have known about Shelnutt's misconduct, had to a duty to
prevent it, and failed to stop it, in violation of the plaintiffs' constitutional rights under the 5th and
14th Amendments.  The defendants raised a claim of qualified immunity, arguing that at the time
it was not established that such harassment is actionable as a constitutional claim.

Writing for a majority of the panel, Circuit Judge Edmondson noted that in 1997 the 11th Circuit
had ruled that same-sex harassment was actionable under Title VII of the Civil Rights Act of
1964, and the U.S. Supreme Court issued a similar ruling in 1998.  However, Edmondson
asserted, this was not tantamount to a ruling that same-sex harassment was also constitutionally
actionable. "Title VII originally was created to reach conduct that the Constitution did _not_
reach; and the statute and Constitution are not always concurrent." Edmondson took the view that
until there was a precedent stating that such conduct violated the Constitution, there was not fair
warning to public employers that they could be sued on such a constitutional claim.  

Dissenting in part, Circuit Judge Barkett agreed that until the 11th Circuit ruled in 1997 that
same-sex harassment was actionable under Title VII, public officials in Alabama could profess
ignorance that they had any duty to prevent or redress same-sex harassment in their workplace. 
But she disagreed with the majority that the 1997 ruling did not put the officials on notice that
they were now vulnerable to liability on such a claim.  She pointed out that Title VII and 14th
Amendment liability for intentional acts of discrimination is coextensive, and that it was well-
established in the 11th Circuit by 1979 that sexual harassment, as such, violated the Equal
Protection Clause in a public sector workplace. "Accordingly," wrote Judge Barkett, "such
parallel claims may be analyzed together, with no distinctions being drawn between the two."  
Thus, to the extent the plaintiffs' claims were based on conduct that occurred after May 22, 1997,
the date of the court's prior decision, they should not be barred by qualified immunity from being
asserted against the college officials.  A.S.L.

Georgia Supreme Court Affirms Exclusion of Evidence About Victim's Sexuality in Murder
Case

The Georgia Supreme Court unanimously affirmed Eddie Smart's conviction for the brutal
murder of James Henry Williams, Jr., a gay man.  In _Smart v. The State_, 2003 WL 22169774
(Sept. 22), the court rejected Smart's attempt to get his conviction (and two consecutive life
sentences) reversed based on the trial judge's refusal to let him introduce evidence of Mr.
Williams' sexuality and past sexual conduct.

The murder occurred on December 4, 1999, in DeKalb County.  According to Chief Justice
Norman S. Fletcher's opinion for the Supreme Court, Smart told the police and testified at the
trial that he had entered Williams' apartment to use the telephone and then killed Williams in
self-defense when Williams made unwanted sexual advances towards him.  Forensic evidence
showed that Williams sustained forty stab wounds and there were blood stains throughout the
apartment.  At trial, the prosecution presented evidence that Williams' briefcase was found
disordered, and contained multiple empty bank deposit bags.  The prosecution also showed that
Williams was known to carry money in his briefcase, and that Smart had told an acquaintance
that he killed Williams while robbing him.  The jury convicted Smart of malice murder, felony
murder, and armed robbery.

Appealing his conviction, Smart complained that he had not been allowed to present evidence
that would support his self-defense claim.  Smart wanted to show that Williams had been
convicted of public indecency in 1994 for "enticing a young boy to his door and masturbating in
front of the child."  He also wanted to present a former lover of Williams, Ricco Reeves, to
testify about their homosexual relationship.  Smart argued that both of these items of evidence
would tend to corroborate his story that he was fighting off a sexual advance when he stabbed
Williams to death.

"The trial court did not err," wrote Fletcher, "by refusing to allow Smart to dwell on irrelevant
matters related to Williams' past sexual relationships.  Smart's efforts to present entirely
irrelevant evidence throughout the trial about Williams' homosexual relationships were merely
attempts to attack Williams' character, and it was not error for the trial court to exclude such
evidence."  Rejecting the attempt to bring Williams' past conviction for public indecency to the
attention of the jury, Fletcher noted that this conduct "does not qualify as a prior act of violence
because there is no evidence that the crime caused any physical harm," and there was no
connection between Williams' behavior on that occasion and the issues in Smart's trial.
"Evidence intended solely to impugn the character of a victim of a crime is inadmissible,"
Fletcher asserted.

Similarly, the court found no error from the lack of testimony by Reeves, Williams' alleged
former lover, since there was no indication that this evidence would be relevant to the question
whether Williams' made unwanted sexual advances to Smart on December 4, 1999.  The court
also found, quite logically, that Smart had not receive ineffective assistance of counsel by virtue
of his lawyer's failure to locate Reeves, since Reeves' testimony, at least as described by the
lawyer during a sidebar with the court, would not have been admissible. 

The kind of defense Smart was presenting would have been routinely accepted by courts not so
many years ago, but most courts have come to reject "homosexual panic" defenses by murderers
and now generally reject the assertion that evidence that somebody was gay would support the
conclusion that they would necessarily make aggressive, unwanted physical advances of
sufficiently threatening character to warrant the kind of extreme response represented by forty
stab wounds.  Indeed, these days the state typically presents expert testimony that such brutal
attacks are typical of homophobic gay-bashing, although in this case it appears that robbery was
an important part of the murderer's motivation for the crime.  A.S.L.

New York Trial Judge Strikes Down Revised Adult Zoning Law

In _Ten's Cabaret, Inc. f/k/a Stringfellow's of New York, Ltd. v. City of New York_, NYLJ,
9/16/2003, p. 18, col. 1 (N.Y. Supr. Ct., N.Y. Cty., Sept. 9, 2003), Justice Louis York struck
down a New York City ordinance which would bar an "adult establishment" from operating
within 500 feet of a bookstore or school.  An "adult establishment<!70> was defined as an adult
theater, adult eating or drinking establishment, adult bookstore, or any combination of these.  

This ordinance was passed as part of an ongoing initiative of the Giuliani administration to rid
the city of such businesses, dating back to 1993. (Long-time readers of _Law Notes_ have read
numerous cases on this topic. This writer has written about several such cases over the years.)
The city has met with very limited success in these attempts, mostly because the ordinances
enacted went much further than was constitutionally permitted to regulate businesses of this
nature, raising serious First Amendment concerns.

As summarized by Justice York, New York City did not regulate adult businesses in any special
manner at all until 1993, when a study was undertaken to see what "secondary effects" such
unregulated businesses had on surrounding communities. The study found that such businesses
depressed the real estate values of the surrounding areas, created an esthetically unpleasant
environment because of the unpleasant signage used, and raised concerns about exposing minors
to sexually explicit imagery. Judge York stated that, as a result, the 1993 study "purported" to
link adult businesses to various secondary effects, including nearby crime and lower property
values.

The city responded by passing an ordinance that restricted permissible location of adult
businesses. The test of whether a business fell withing the scope of the ordinance was whether a
"substantial portion" of floor space was devoted to "adult" materials or activities.  Responding to
arguments that "substantial portion" was vague, the city adopted a 60/40 rule: a business would
be deemed a nuisance and shut down if more than 40% of the premises, measured by floor space,
was devoted to adult materials or uses.  As amplified, this measure was upheld, and some
businesses closed down.  Many survived, however, by apportioning floor space and diversifying
inventory such that floor space and inventory devoted to adult uses fell under the 40% threshold. 

The city responded by challenging compliance with the 60/40 rule as being a sham in many
instances, because businesses derived substantially more than 40% of their revenue from adult
material, notwithstanding literal compliance with the 60/40 floor space allocation. The New York
Court of Appeals rejected this argument in 1999, as the ordinance in question looked to floor
space and inventory, not profitability. The City amended the zoning ordinance yet again in 2001,
removing all reference to whether a "substantial" portion of the business was related to adult
activities, barring all such business that sold adult materials or presented any adult activities from
operating within 500 feet of a church or school.

The businesses responded with the instant action, seeking to enjoin enforcement of the ordinance
as currently formulated, obtained a temporary restraining order against enforcement of the
ordinance, and filed a motion for preliminary injunction which is determined in this decision.
The City responded with a motion for summary judgment. 

Justice York summarized national and New York state law concerning restrictions on adult
businesses: time, place and manner restrictions reasonably related to legitimate concerns
unrelated to the content of the speech presented by the adult businesses are acceptable.
Regulations that attempt to restrict business operations on grounds relating to content of the
message would not be acceptable.

York granted summary judgment to the plaintiffs and struck down the ordinance, ruling that the
city failed to make the required showing that the businesses caused adverse effects on the
surrounding community. The city did not make a new study to determine whether businesses
complying with the 60/40 rule had any adverse impact on the surrounding communities, or where
there is a need for further regulation. The city argued that the showing was made sufficiently in
its 1993 study. The judge noted that this study was made before the 60/40 rule was enacted, and
there was no showing that businesses complying with this rule had the same adverse effects on
the surrounding communities as the unregulated businesses that were studied in 1993. The only
relevant study on the record was by plaintiffs, which showed no such adverse impact on the
surrounding communities.

Given the zeal with which the City of New York has been pursuing the matter, it is doubtful that
we have heard the last of this saga. _Steve Kolodny_

Federal Court Rejects Prison Warden's Immunity Claim on Speech Suppression Charge

U.S. District Judge Tunheim (D. Minn.) denied a motion to dismiss by Connie Roerhrich, a
Minnesota prison warden who is an individual defendant in a constitutional case brought by
prison employees who were disciplined for their conduct during a mandatory training session
titled "Gays and Lesbians in the Workplace." _Altman v. Minnesota Dept. of Corrections_, 2003
WL 22076606 (Aug. 24, 2003).  A jury had returned a verdict against the warden individually for
violating her employee's constitutionally protected rights to freedom of speech and equal
protection under the law.  Judge Tunheim's holding highlights the balancing analysis applicable
to such claims of immunity.   

The plaintiffs were opposed to attending the mandatory session due to their religious convictions. 
In protest, they brought Bibles and read passages aloud during the session's activities.  The
session leaders reported seeing other participants watching the plaintiffs instead of the class and
sometimes even becoming distracted themselves.  The plaintiffs were disciplined via written
reprimand and denial of promotions for which they were otherwise eligible.

Roerhich claimed qualified immunity.  Government officials are immune from personal liability
for civil damages if their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known, according to the verbal formulation
employed by the courts.  In an analysis of the warden's ability to claim such immunity, the court
used a two-prong test enunciated in _Washington v. Normandy Fire Protection District_, 272
F.3d 522, 526 (8th Cir.2001).  The first prong requires a determination of whether a
constitutional right has actually been violated.  This question turns first to whether the conduct
can be "fairly characterized as constituting speech on a matter of public concern." _Connick v.
Myers_, 461 U.S. 138, 146 (1983).   The defendant argued that internal prison policy was not a
matter of public concern.  However, the court cited other 8th circuit language holding exactly the
contrary.  The way prisons deal with gays and lesbians is clearly a matter of public concern.  The
question of whether such speech is a matter of public concern was considered to be  well settled
in _Altman v. Minnesota Dept. of Corrections_, 251 F.3d 1199, 1202 (8th Cir.2001), a prior
ruling in this case.

With the first prong of the test realized, Judge Tunheim analyzed the facts under the second
required element, a balancing process derived from _Pickering v. Board of Education_, 391 U.S.
563 (1968).  This process weighs the employee's right to comment on matters of public concern
against the state's interest, as an employer, "in promoting the efficiency of the public services it
performs through its employees."  The court need only apply the Pickering Balancing Test if the
defendant has first met the burden of proving sufficient evidence that the speech "created a
disruption in the workplace."

According to Judge Tunheim, the conclusory allegations of disruption were not enough to trigger
the Pickering balancing test in this case.   The evidence of disruption during the training session
did not rise to the requisite level of "disharmony in the workplace, impeded plaintiffs' ability to
perform their duties, or impaired working relationships with other employees."   Thus, the
warden's immunity claim was dismissed. _Joshua Feldman_

Challenge Filed Against Solomon Amendment

A group of law schools associated in the Forum for Academic and Institutional Rights (FAIR),
the Society of American Law Teachers (SALT), two law student groups (from Boston College
and Rutgers University) and some individual students, joined together to file suit on Sept. 19
against the U.S. Department of Defense, seeking an injunction against enforcement of the
Solomon Amendment, a provision of U.S. law that was enacted to coerce institutions of higher
education into allowing military recruiters on their campuses by authorizing withholding or
cancellation of federal financial assistance to any institution that excludes such recruiters.  

The Solomon Amendment was originally enacted in 1995 after a New York court ruled that
military recruiters must be excluded from the placement office at the State University of New
York's law school in Buffalo, by virtue of an executive order banning sexual orientation
discrimination in state agencies that had been issued a decade earlier by Governor Mario Cuomo.
See _Doe v. Rosa_, 606 N.Y.S.2d 522 (N.Y.Sup.Ct., N.Y.Co., 1993).  SUNY-Buffalo is in the
legislative district that was then represented by U.S. Rep. Gerald Solomon, a Republican (since
retired), who sponsored the amendment to a Defense Department appropriations bill.  The
original version of the Solomon Amendment only applied to Defense Department funds, and was
construed by the Defense Department to apply only to the unit of a university that actually barred
military recruiters.  At the time, many law schools had already adopted placement office policies
banning employers that discriminate based on sexual orientation, some in response to a by-laws
requirement of the Association of American Law Schools that had been added in 1990, but some
others voluntarily adopting such policies beginning in the late 1970s.  Since few law schools
receive Defense Department funds, the original version of the Solomon Amendment turned out
to have little impact on law schools, although it hastened the change of placement office
practices at many research universities that had significant Defense contracts.

Reacting to the failure of his amendment to achieve military access at law schools, Rep. Solomon
introduced a broader version during the following legislative cycle, this time extending the ban to
money appropriated for a wide range of government agencies that do business with American
higher education, not just the Defense Department.  This threatened the law schools directly,
since most benefit from funds appropriated for the U.S. Department of Education to provide
financial assistance to students through work study programs, guaranteed loans and fellowships. 
U.S. Representatives Frank and Campbell then teamed up to add a provision shielding any
money intended for student financial assistance from the operation of the Solomon Amendment. 
When the Defense Department realized that the Frank-Campbell Amendment had effectively
countered Solomon's latest version, it revised its interpretation of the regulations so as to
attribute the exclusion of military recruiters to the entire university, not just the law school.  As a
result, during the fall of 2002, the military was able to get access to almost every law school
where it wanted to recruit, since university administrators proved unwilling to sacrifice federal
funds that made up a substantial part of their budgets in order to let their law schools continue to
stand on principle in operating their career services offices.

The legal theory underlying _FAIR v. Department of Defense_, which was filed in the U.S.
District Court in New Jersey and assigned to Judge John C. Lifland, is that the Solomon
Amendment places an unconstitutional condition on the receipt of federal higher education
funds, in violation of academic freedom protected by the 1st Amendment.   FAIR was formed as a
vehicle to bring suit without placing any individual law school on the line, and FAIR did not
release the names of participating law schools at the time the suit was filed, although their
identity was likely to become known during the course of litigation.  The lead counsel in the case
is Professor Kent Greenfield of Boston College Law School, although the _Boston Globe_
reported on Sept. 20 that B.C. is not itself a member of FAIR.   The _Globe_ also reported that
the other local law schools it had contacted had all stated that they were not involved in the suit. 
Harvard Law School's Dean, Elena Kagan, issued a statement in response to the _Globe_'s
inquiry: "Harvard Law School is not a member of this organization, but I share its commitment
to nondiscrimination.  I look forward to the day when all Americans - regardless of sexual
orientation - can serve their country with honor and distinction."

The lawsuit names as defendants the cabinet secretaries heading all the agencies whose
appropriations are encumbered by the Solomon Amendment, and seeks immediate temporary
relief to prevent Solomon from being used during the balance of this fall's recruitment season. 
Responding to this request, Judge Lifland held an immediate hearing and gave the government
one week to respond to the request for temporary relief.  

A spokesperson for the U.S. Attorney's Office in Newark told the _New York Times_ (Sept. 20),
"We will contend that the Solomon Amendment is constitutional and will seek to prohibit any
limitation on its enforcement." Constitutional law authority Prof. Laurence Tribe of Harvard told
the _Globe_, "I think it's a serious and very weighty lawsuit," and he claimed that the Supreme
Court has ruled in the past that although the government can withhold funds from an activity it
disapproves, it can't deny funding to an entire organization on that basis. "This law is an attempt
to take the principle that he who pays the piper calls the tune much further than the courts have
generally allowed," said Tribe to the _Globe_.  A.S.L.

Civil Litigation Notes

_U.S. Court of Appeals - 9th Circuit_   A unanimous panel rejected a challenge to an order of the
Board of Immigration Appeals, denying a gay Mexican man's application for asylum and
withholding of removal. _Contreras v. Ashcroft_, 2003 WL 22176710 (U.S.Ct.App., 9th Cir.,
Sept. 8, 2003) (not selected for publication).  Contreras claimed that he was persecuted on
account of his sexual orientation in Mexico.  He testified that police officers called him
"immoral" and extorted money from him, thieves robbed him using homophobic epithets, and a
group of men beat him, calling him a "faggot." The court found that this evidence did not meet
the threshold requirements under U.S. immigration law for proving persecution.  The per curiam
opinion states that "the harm suffered by Romero Contreras, although unfortunate, does not rise
to the level of persecution," asserting that there is a legally relevant distinction between
harassment or discrimination and persecution.

_U.S. District Ct. - Pennsylvania_ - In _Bair v. Shippensburg University_, 2003 WL 22075681
(Sept. 4), District Judge John E. Jones III (M.D. Pa.) Ruled that the student code of conduct at
Shippensburg University violates the 1st Amendment rights of students to exercise their freedom
of speech.  The code specifically condemned "acts of intolerance" including speech directed at
others "for ethnic, racial, gender, sexual orientation, physical, lifestyle, religious, age, and/or
political characteristics." Judge Jones found that, on its face, the code prohibited speech that is
protected by the 1st Amendment, pointing out that read literally it could ban communications
precisely because of their effectiveness in arousing a passionate response from the listener, and
that the prohibition was too expansive to survive constitutional scrutiny.

_U.S. District Ct. - Pennsylvania_ - A settlement has been reached in the long-running case of
_Sterling v. Borough of Minersville_, 232 F.3d 190 (3rd Cir. 2000).  The case arose when the son
of plaintiff Madonna Sterling, 17-year-old Marcus Wayman, committed suicide after a local
police officer threatened to tell his grandfather that he was gay and was apprehended in a parked
car with one of his high school football teammates late at night.  The 3rd Circuit had ruled that the
town could be held liable for a violation of Wayman's civil rights.  A jury ruled against Wayman,
but the judge had set aside the verdict as inconsistent with the evidence.  The ACLU Lesbian and
Gay Rights Project, representing Sterling, negotiated a $100,000 settlement.  For purposes of
establishing legal rights, the 3rd Circuit's published decision is the key result of the case,
establishing the constitutional right of teenagers to keep their sexual orientation confidential.  (It
is not known whether Wayman was actually gay.  His plight has become the subject of an
independent film, which was recently screened in Minersville at a fundraiser for a human rights
organization.) _ACLU Press Release_, Sept. 12.

_U.S. Bankruptcy Court, W.D. Washington_   In _In re Russell L. Goodale,  Debtor_, 2003 WL
22173701 (U.S. Bankruptcy Ct., W.D. Wash., July 25, 2003), Bankruptcy Judge Karen A.
Overstreet found that under the federal Defense of Marriage Act, 1 U.S.C. sec. 7, a former same-
sex partner of a debtor could not be considered a "spouse" for purposes of the bankruptcy law, a
determination that was crucial in deciding that the debtor in this case can avoid a lien of
judgment against him by his former partner, which lien derived from a state court's finding that
the two men had been in a "meretricious relationship" which, under state law, gave the court
authority to make an equitable distribution of the property they had jointly acquired during their
18-year relationship.  The distribution resulted in giving the former partner a lien against the
debtor's property, which he sought to avoid in the bankruptcy proceeding he had filed.  The
former partner sought to characterize his claims as a spouse in order to prevent the debtor from
avoiding the lien, but the judge ruled this was not possible in light, inter alia, of the Defense of
Marriage Act.

_California_ - California State Senator William "Pete" Knight (R-Palmdale), author of
Proposition 22, which bars the state from recognizing same-sex marriages, has joined forces with
the Alliance Defense Fund to sue the state to block A.B. 205 (see above) from going into effect. 
Knight argues that the adoption of numerous policies extending legal recognition to same-sex
partners violates Prop. 22, which was passed with 60% of the vote.  Knight's lawsuit seeks
interim relief to block the measure from going into effect.  This seems rather premature, since the
legislation by its own terms would not go into effect until 2005.  The legislative counsel to the
legislature had opined that A.B. 205 was not an amendment of Prop. 22, and thus did not require
a new statewide referendum vote to be enacted. _Los Angeles Times_, Sept. 23.

_Florida_ - Lambda Legal announced the successful settlement of a housing discrimination claim
it had brought on behalf of Fred Sternbach and Stephen Miller, a gay couple whose application to
rent an apartment together at Royal Colonial Apartments in Boca Raton had been rejected on the
ground that the landlord rented only to "married couples." An applicable Palm Beach County law
forbids housing discrimination on the basis of sexual orientation or marital status.  The
settlement was reached during a mediation session held on September 29.  Royal Colonial has
agreed to pst notices that it abides by fair housing practices in its offices and rental agreements,
and will pay $25,000 each to Sternbach, Miller, and Lambda Legal (as attorneys fees). 
According to Lambda staff attorney Greg Nevins and cooperating attorney Agnes Hollingshead,
although the law has been in place more than a decade, few complaints have been filed, most
likely due to the reluctance of individuals to make a public case out of their turn-downs by
landlords.  According to a survey by the Kaiser Family Foundation, about a third of lesbian, gay
and bisexual people have suffered some form of housing discrimination. _South Florida Sun-
Sentinel_, Oct. 1.

_Georgia_ - Achieving an important reversal of decision, Lambda Legal reported success in
persuading a Georgia judge to grant a legal name change to a pre-operative male to female
transgendered person, Vickee Gatliff.  A judge had previously turned down the name-change
application on public policy grounds. _Lambda Press Release_, Sept. 11, 2003.

_Hawai'i_ - The Hawaii Supreme Court will soon hear arguments in _Hawai'i Civil Rights
Commission v. RGIS Inventory Specialist_, Civ. No. 02-1-1703-07, an appeal by the state's Civil
Rights Commission from a trial court ruling that Hawai'i's law against workplace sex
discrimination does not prohibit discrimination against transgender persons.  The Civil Rights
Commission had taken the position in this case that the sex discrimination law should be broadly
construed, in light of _Oncale v. Sundowner Offshore, Inc._, 523 U.S. 75 (1998) and _Price
Waterhouse v. Hopkins_, 490 U.S. 228 (1989).  The trial court granted judgment to the
employer, finding that the framers of Hawai'i's sex discrimination laws had not intended them to
cover transgender persons.  In an amicus brief filed on behalf of itself, Human Rights Campaign
and Gay & Lesbian Advocates & Defenders, the National Center for Lesbian Rights argues that
the Commission had correctly concluded that these recent Supreme Court rulings had superceded
prior federal circuit decisions rejecting Title VII sex discrimination claims from transgender
plaintiffs.  In particular, the 9th and 1st Circuits have ruled that transgender persons are protected
under the sex discrimination provisions of the Violence Against Women Act and the Federal Fair
Credit Act.  NCLR's brief also notes several state court cases from other jurisidictions that have
adopted expansive interpretations of their sex discrimination laws to encompass transgender
discrimination.

_Michigan   Ann Arbor_   The conservative Thomas More Law Center filed a lawsuit in the
Washtenaw County Circuit Court against the Ann Arbor Public School District on September 22,
claiming that the District's policy of providing insurance benefits to same-sex partners of district
employees is a violation of the Michigan Defense of Marriage Act.  The plaintiff asserts that this
is a test case to determine whether the Act is more than purely symbolic, arguing that domestic
partnership benefits policies constitute "counterfeit marriages" in violation of the law. 
According to a district spokesperson, about fifteen of the district's 3,000 employees have signed
up for the benefits, which were first offered during the 2001-2002 academic year.  The benefits
are specified in a labor agreement between the district and the Ann Arbor Education Association,
and the president of the Association, Linda Carter, indicated that the union, which represents
about 1200 teachers, who seek to join the lawsuit if necessary to protect their members' benefits.
_Detroit Free Press_, Sept. 23.

_Wisconsin - Madison_ - The Wisconsin Equal Rights Division has issued a probable cause
finding against the City of Madison on charges that Robin Williams, a city parking utility
manager, has discriminated against employees and discharged individual based on their sexual
orientation.  The finding came after investigation of complaints by former employees Jeffrey
Earle and Douglas Sonntag, who were discharged by Williams in 2002.  Responding to an
inquiry from the _Capital Times_ (Sept. 15), the mayor's office indicated that the city's internal
investigation under the prior mayoral administration had rejected the claim of discrimination, but
the new mayor would look at the ERD findings anew before deciding how to proceed in the case. 
A.S.L.

Criminal Litigation Notes

_U.S. 2nd Circuit Court of Appeals_ - In _United States v. Holston_, 343 F.3d 83 (Sept. 4), the
U.S. Court of Appeals for the 2nd Circuit ruled that recent Supreme Court decisions limiting
federal legislative authority on federalism grounds do not undermine the constitutionality of the
Protection of Children Against Sexual Exploitation Act of 1977, 18 U.S.C. sec. 2251(a), as
amended in 1998 to authorize federal prosecution of child pornographers who use "materials that
have been mailed, shipped, or transported in interstate or foreign commerce." Defendant Eric
Holston sought to argue that his child pornography activities are purely local in nature and thus
should be beyond federal legislative concern.  (New York State law would also forbid his
activities, but the state's penalties are significantly less than those authorized under federal law.) 
The decision upheld a ten-year sentence that had been imposed by U.S. District Judge Richard
Arcara (W.D.N.Y.).  Reviewing authority from other circuits, Judge Barrington D. Parker, Jr.,
found that the weight of authority had found that the 1998 amendment was sufficient to ground
Congress's power to reach this activity.  There was no question that Holston's photographic
activities used materials that had moved in interstate commerce.

_U.S. District Ct. - C.D.Cal._ - Robert Rosenkrantz, who has served 17 years in state prison for a
murder he committed the day after his high school graduation when the victim had "outed" him
to his father under circumstances generating severe emotional distress, is turning to the federal
courts in search of the parol release he has been denied by Governor Gray Davis.  Rosenkrantz is
arguing that Davis's use of his veto power over the decision of the parole board is
unconstitutional in Rosenkrantz's case, because it is based on a 1988 ballot initiative that
occurred three years after the date of the murder.  Rosenkrantz, who presented the parole board
with substantial evidence of rehabilitation and who has expressed deep remorse for his acts, says
that retroactive application to his case is constitutionally defective.  At early stages in the
litigation some California judges had ruled that the governor had improperly adopted a policy of
never approving parole for convicted murderers, which the government denied and which was
found to be inaccurate by the appellate courts. _Los Angeles Times_, Sept. 24.

_U.S. Military_   A Marine Corps court martial jury found Lance Cpl. Stephen Funk guilty of
unauthorized absence and sentenced him to six months in jail for refusing to respond to a call-up
for the Iraq war.  Funk, who says he is gay, claims that he was singled out for prosecution
because of his active participation as a speaker at anti-war rallies.  He tried to make something
out of his sexual orientation in the court marital proceeding, but the military judge ruled that out
of order, evidently believing that it was irrelevant that Funk would have been subject to discharge
for saying he was gay had he reported for duty.  (During wartime periods, service commanders
have been known to put anti-gay discharges on hold in deference to their staffing needs.)
_Reuters_, Sept. 8.

_California_   Los Angeles Superior Court Judge Richard A. Stone passed sentence on three
men who had seriously assaulted gay actor Trev Broudy on Sept. 1, 2002, in an incident that
many in the community believed should have been prosecuted as a hate crime but was not.  Stone
sentenced Torwin Sessions to 21 years in prison, Larry Walker to 13 years, and Vincent Dotson
to 7 years, after all three had pleaded guilty to mayhem and conspiracy to commit robbery. 
Prosecutors dropped an assault charge in exchange for the guilty pleas.  Bourdy, who remains
seriously disabled as a result of the attack, faced his assailants in court and said, "I refuse to be a
victim, inspire of what you did to me." The district attorney, Steve Cooley, found that the attack
was motivated by an attempt to rob Broudy, not his sexual orientation, but this struck community
observers as odd, since Broudy had just hugged a male friend on the street before being struck in
the head with a baseball hat.  During the sentencing hearing, Broudy insisted that he had been
targeted because he is gay.  The attack left him in a coma for more than a week, and he continues
to be unable to read, see clearly or drive.  He also has memory problems, and has not been able to
resume a previously-lucrative career as a voice-over actor. _Los Angeles Times_, Sept. 27.

_California_ - Los Angeles Superior Court Judge William F. Fahey passed sentence on two men
who pled guilty to hate-crime and attempted murder charges stemming from attacks with
baseball bats directed against gay men in Hollywood.  As part of a plea bargain, Fahey sentenced
Selvin Campos to 10 years in state prison and Ever Wilfred Rivera to 14 years.  Fahey also
ordered the defendants to pay the medical expenses incurred by their victims.  Had the
defendants been convicted in a trial, they would have faced potential life sentences. _Los
Angeles Times_, Sept. 11.

_California_   Santa Barbara Superior Court Judge Diana R. Hall was acquitted of one felony
count on charges of having assaulted her lesbian partner, but was convicted of driving under the
influence of alcohol and sentenced to three years probation, counseling and a fine.  Had
prosecutors not agreed to drop associated felony charges, Hall would have been most likely
disbarred and removed from the bench. _Washington Blade_ Sept. 26.

_Iowa_   In _State of Iowa v. Bailey_, 2003 WL 22187152 (Sept. 24, 2003), the Court of
Appeals of Iowa upheld the murder, robbery and theft convictions of Bobby Ray Bailey, who
claimed he was acting in self-defense when he inflicted mortal wounds on an elderly man, Alfred
Comito, who Bailey claims promised to pay him $100 to let Comito perform fellatio on Bailey. 
According to Bailey, Comito, who was 82 years old, very short and overweight, reneged on his
promise after performing the act, and then attacked Bailey with a hammer when he refused to
leave Comito's house.  Judge Miller wrote for the court, "Bailey's account attempts to paint a
picture of an old, rich, homosexual man whose refusal to pay the money he had promised for a
sex act caused a low-functioning, homeless man who suffers from schizophrenia and hears
voices to just 'snap.'  On the other hand the State tries to portray a kindly, older, wealthy man
whose reward for trying to help out the less fortunate by giving them work was to be robbed and
savagely beaten for a hundred dollars by one of the very people he was trying to help." Bailey's
story was undermined by evidence that after beating Comito to a pulp, he took the man's car keys
and drove away in his black Cadillac limousine. The jury evidently did not believe his story. 

_North Carolina_   The _Charlotte Observer_ reported on Sept. 25 that a Superior Court judge
had turned down a motion by convicted murderer Eddie Hartman to halt his execution scheduled
for Oct. 3, on the ground that the prosecutors used homophobic bias to persuade the jury to vote
for the death penalty.  While admitting that he shot his roommate, Herman Smith, in the head,
Hartman maintains that the prosecutor convinced the jury to impose the death penalty by
emphasizing Hartman's homosexuality in closing arguments.  On Sept. 29, Hartman's attorney
filed a request for a stay of execution with the State Supreme Court, but the court denied the stay
on Oct. 1.  Hartman's lawyer has appealed to the governor for clemency, seeking to convert the
sentence to life imprisonment.  National gay rights organizations have participated in an
advertising campaign in local newspapers in support of Hartman's case.  _Charlotte Observer_,
Oct. 1 & 2. A.S.L.

State & Local Legislative Notes

_Arizona - Tucson_ - The city council approved final plans to establish a domestic partnership
registry.  Couples can begin registered on Dec. 1, 2003.  The direct benefits of registering are
visitation rights for same-sex partners at hospitals within city limits, and eligibility for any
discounts that local businesses offer to families.  Co-habiting same-sex or opposite-sex couples
over the age of 18 may register; they must sign a statement that they are not blood relatives and
are in an exclusive relationship. _Arizona Daily Star_, Sept. 24.

_California_ - On Sept. 10, Governor Gray Davis signed into law a measure to protect foster
children from discrimination by requiring parents to watching training presentations about the
state's anti-discrimination law and imposing a non-discrimination requirement upon them.  The
grounds of forbidden discrimination include race, ethnicity, religion and sexual orientation.  _San
Jose Mercury News_, Sept. 10.

_New York - Baldwinsville_ - The Baldwinsville Central School District is amending its code of
conduct to add "sexual orientation" to its anti-harassment policy.  On Sept. 8, a former local
student, Allen Wolff, addressed a school board meeting asking for the policy change and was
referred to the superintendent of schools, who agreed to make the change, which would be
effective at the beginning of the next school year. _Post Standard/Herald-Journal_, Sept. 23.  The
power of a single voice...

_North Carolina   Durham_ Durham County Commissioners voted unanimously on September 2
to offer health insurance to same-sex partners of county employees, following on a decision last
year by the Durham City Council to extend such benefits to municipal employees.  Durham is the
first N.C. county to offer such benefits.  In addition to the city of Durham, Chapel Hill and
Carrboro provide such benefits to municipal employees. _News & Observer_, Sept. 3. A.S.L.

Law & Society Notes

_Federal_ - Gay immigration activists have sent a protest to the U.S. Citizenship and
Immigration Services in the Department of Homeland Security about a new immigration policy
that disadvantages transgendered persons.  In the protest letter, dated September 9, the activists
note that "several petitions for immigrant visas (I-130s) and fianc‚ visas (k visas) have been
denied by district offices of the USCIS solely because one of the married or engaged individuals
is transsexual." Evidently, prior to the turnover of immigration enforcement to the new unit of
the Homeland Security Department, the old Immigration Service had taken a more tolerant
approach towards the issue of marriage by post-operative transsexuals, willing to accept
marriages as valid if they were valid where performed, even though some American states have
gone on record as rejecting such marriages.  According to the protest letter, the policy appears to
stem from a March 20, 2003, memorandum to district directors asserting that the Service has no
legal basis to recognize a marriage involving a transsexual person.  The activists maintain that
this is a change in policy that violates the plain language of the Immigration and Nationality Act
and settled legal precedents.  The Act itself defines a "qualifying marriage" for immigration
purposes as one that is legal where enacted.  This takes on more significance recently as many
more countries, especially in Europe, are coming around to the view that a transgender person
who has undergone gender reassignment should be treated as a member of his or her desired
gender for all legal purposes.  Even in England, where decades-old court precedents staunchly
rejected this view, the government has now proposed a complete reform of the law regarding the
status of transgender persons.  It is the U.S. that lags behind, to judge by relatively recent
appellate decisions in Kansas and Texas.  (A sterling exception is the recent ruling by Maryland's
highest court, accepting the reality of transgender experience.)  The change in U.S. policy may be
due to fears that terrorists from Muslim countries may disguise themselves as members of the
opposite sex to gain entry to the U.S.  

And, speaking of immigration, international headlines were generated on September 19 (see
_New York Times_, _Chicago Tribune_), when an overzealous U.S. Customs agent insisted that
under the Defense of Marriage Act he could not allow a legally-married same-sex couple from
Canada to enter the U.S. as a married couple.  As reported in the _Chicago Tribune_, Kevin
Bourassa and Joe Varnell, one of the couples whose case led to the same-sex marriage victory in
the Ontario Court of Appeals, "abandoned their trip to a human rights conference in Georgia after
a U.S. customs official at Toronto's Pearson International Airport refused to accept their joint
customs declaration form, saying the United States doesn't recognize same-sex marriages.

_Illinois - Cook County_ - Cook County's Domestic Partnership Registry opened for business on
October 1, and couples lined up overnight outside the County Building.  John Pennycuff and
Robert Castillo claimed the honor of the first to register their partnership and receive a County
Certificate.  During the first day, seventy-one couples registered.  The Registry was authorized by
the county board in a July vote.  Although Gov. Rod Blagojevich spoke supportively about this
step, he was not willing to commit to seeking a statewide registry at this time. "I support
domestic partnerships between couples that are committed to one another so the laws are applied
equally when it comes to relationships, and a registry could very well be something that would
help do that," said the governor to the _Chicago Tribune_ (Oct. 2), "But we've not really thought
through the implications of that, so I'm not in a position to say right now whether that would be
something the state would do." Cook County has offered domestic partnership benefits to same-
sex partners of county employees since 1999.

_New Jersey_   With a motion for summary judgment pending in _Lewis v. Harris_, the same-
sex marriage lawsuit in New Jersey Superior Court, on Sept. 29 the _Newark Star-Ledger_
published the results of a statewide poll on same-sex marriage and domestic partnership that was
conducted by the newspaper in connection with Eagleton-Rutgers.  The poll  showed that 52
percent of New Jersey residents support civil unions for same-sex partners, and about 60 percent
think that same-sex couples should have the same insurance and Social Security rights as married
couples.  The poll showed 43 percent supporting same-sex marriage, a plurality of those polled (a
significant number expressed no opinion), and among younger respondents the percentage got as
high as 64 percent among those age 18 to 29.  (A recent national poll by ABC News reported that
only 37 percent of U.S. residents favor same-sex marriage, and only 40 percent support civil
unions.)   Unlike other polls, this one also asked a question about recognizing marriages from
other jurisdictions, finding that 53 percent of respondents thought that New Jersey should
recognize a same-sex marriage if it were performed in another state and the couple moved to
New Jersey   a moot point, perhaps, since no other state now authorizes same-sex marriages. 
Unfortunately, the pollsters were not sharp enough to ask about whether New Jersey should
recognize Canadian same-sex marriages.  

_New York_   On September 22, the New York State Democratic Party adopted a resolution at
its convention in Buffalo supporting civil marriage for same-sex couples.  State Party Chairman
Herman "Denny" Farrell, who also heads the New York County (Manhattan) Democratic
Committee, told the _New York Post_ (Sept. 23): "We want to make sure that these folks can
have the same treatment as everybody else.  This does not impose our will on churches, mosques
and synagogues."  

_Illinois_ - Tim McCanless and Roy Bates, a gay couple living near Peoria, Illinois, went to
Vermont in June and had a civil union ceremony.  When they returned home, Roy decided that
now that he was married to Tim, he should have the same last name, so he took the civil union
certificate to the Roanoke County Secretary of State's Office and asked to have his surname
changed to McCanless.  The clerk said he also needed to bring his social security card.  Roy and
Tim came back to the office with Roy's social security card.  Then they were told that Roy
needed to show a new social security card reflecting his new name.  Roy went to the Peoria
Social Security Office and applied to have a new card issued as Roy McCanless; he was issued a
receipt for the application which he brought back to the Roanoke Secretary of State's Office,
together with lots of other documentation showing that the old Roy Bates was the new Roy
McCanless.  The state has now issued Roy a new driver's license as Roy McCanless.  Although
the Secretary of State's Office takes the position that a Vermont civil union has no status in
Illinois, Roy McCanless now has the same surname as his male life partner. _Peoria Journal
Star_, Sept. 25.

_New York - Arlington_   The _Poughkeepsie Journal_ (Sept. 17) reports that the Arlington
School District has concluded a collective bargaining agreement under which public school
teachers will be able to obtain health insurance coverage for domestic partners.  The new benefit
will take effect July 1, 2004, the beginning of the new contract coinciding with the district's
fiscal year.  Both same-sex and opposite-sex partners will be eligible.  According to the
_Journal_ article, qualifying couples will have to prove a long-term financial commitment or
living arrangement, such as joint financial or child-rearing obligations.

_New York   Rochester_   _The Empty Closet_, a publication of the Gay Alliance of the
Genesee Valley, reported in its September 2003 issue that openly-gay Bill Pritchard has been
designated by fill a vacant seat on the Rochester City Council, and will stand for election for the
balance of an unexpired term through 2005 this fall, probably running unopposed.  Pritchard has
been on the City Planning Commission for six years.

_Pennsylvania - Philadelphia_ - According to a Sept. 23 report in the _Philadelphia Inquirer_, the
mayor's office informed the Cradle of Liberty Boy Scout Council that the Scouts would be
denied continued free use of city property, a building at 22nd and Winter Streets where the
Council has its offices, because of the organization's policy of overt discrimination against gay
people.  The board chair of the scout council indicated that this would force them to move their
offices to a suburban location, since they could not afford city rents.  The executive director of
the council told the newspaper that moving from the city would destroy the scouting program. 
Scout leaders said they would ask the city for more time to try to work out differences, which
focus on the Council's capitulation to the demand of the national office of the Boy Scouts of
America that they reaffirm their obedience to the national organization's requirement that gay
men and boys be excluded from participation or membership.  A Philadelphia ordinance bans
such discrimination by places of public accommodation.  The Scouts have enjoyed the free use of
city land to build their headquarters at that location since 1928.  The city owns the property,
which the Scouts occupy rent-free. * * * At a meeting on Sept. 26 with city officials, Council
representatives promised to figure out a way to comply with the city's non-discrimination policy,
in order to avoid being evicted from the city's building. _Philadelphia Inquirer_, Sept. 28. 
However, as the newspaper noted, "The challenge now is for Cradle of Liberty to figure out a
way to accommodate two opposing policies   the city's and the national Boy Scouts'.  David
Lipson, the board chair of the scout council, said that "we will be in compliance with the city
ordinance." How he will pull that one off in the face of the recalcitrance of the national Scouts
organization is anybody's guess.

_Utah_ - The _Salt Lake Tribune_ (Sept. 30) reports that domestic partners of University of Utah
students and staff can now obtain many of the same benefits afforded to married partners,
including medical insurance, but they must pay extra for the benefits.  The University sees this as
an extension of its policies of helping find jobs or other services for the domestic partners of
students and staff as the need arises.   Depending on the plan selected, the cost to cover a partner
for medical insurance runs from $178 to $515 per month.

_Washington, D.C._   Lambda Legal has announced that it is joining with the Child Welfare
League of America on a project to reform the foster care system in the U.S. to accommodate the
particular needs of sexual minority youth.  At present, many sexual minority youth (gay, lesbian,
bisexual, transgender, intersexual, or questioning their sexual identity) in foster care are not
accorded the kind of counseling and supportive services that would ease their transition to a
secure adult sexual identity.  The three-year project will seek to engage child welfare agencies
nationwide in a process of rethinking their approach to these issues, through regional forums and
training programs. _Lambda Press Release_, Sept. 18.

_Utah_ - The _Deseret News_ reported on Aug. 30 that the new rabbi of Congregation Kol Ami,
the largest Jewish congregation in the state, is out lesbian Rabbi Tracee Rosen.  Rosen was
picked by the congregation's search committee based on their conclusion that she was the "best
rabbi" whom they considered.  The article reported that 80% of the congregants voted in favor of
her appointment, which she wryly noted was a stronger mandate than almost any political leader
gets.  A.S.L.

United Nations Human Rights Committee Requires Equal Treatment of Different-Sex and Same-
Sex Unmarried Partners

At least 50 years elapsed before the first victory for same-sex partners under international human
rights law, on July 24 in the European Court of Human Rights in _Karner v. Austria_ (Sept. 2003
LGLN).  The second success followed only 13 days later, on Aug. 6 in the United Nations Human
Rights Committee in _Young v. Australia_, Communication No. 941/2000.  (The Committee's
"views" are available at http://www.unhchr.ch, Treaty Bodies Database Search, "Edward Young." 
It is not clear whether the Committee knew about Karner.)  

Edward Young had been in a 38-year relationship with his partner, Mr. C., a war veteran.  After Mr.
C.'s death, Mr. Young applied for a veteran's dependant pension under the federal Veteran's
Entitlement Act (VEA), which defines "dependant" as including a "partner," and "<partner" as a
person "living with a person of the opposite sex ... in a marriage-like relationship."  Because the
legislation states unambiguously that a veteran's partner must be "of the opposite sex," and
Australia's Constitution does not contain a bill of rights or an equal protection clause, his claim was
rejected by three federal agencies:  the Repatriation Commission, the Veterans Review Board, and
the Human Rights and Equal Opportunities Commission.  He then submitted his communication to
the UN's Human Rights Committee under the Optional Protocol to the International Covenant on
Civil and Political Rights. (The US has ratified the Covenant but not the Optional Protocol
permitting individual complaints).  He argued that the denial of a pension constituted sexual
orientation discrimination contrary to Article 26 of the Covenant: "All persons ... are entitled without
discrimination to the equal protection of the law. ... [T]he law shall ... guarantee ... protection against
discrimination on any ground such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status."

Strangely, the Australian Government chose not to assert any justification for the difference in
treatment between different-sex and same-sex unmarried partners.  Instead, it raised three technical
objections to the claim:  (1) because Mr. C.'s death was not "war-caused," rendering Mr. Young
ineligible for a pension even if he had been a woman, either Mr. Young was not a "victim" of a
violation of a Covenant right, and therefore did not have standing to make his Article 26 claim, or
he had failed to show that the difference in treatment was based on his sexual orientation;  (2)
because he could have appealed to the Administrative Appeals Tribunal, the Federal Court, and
ultimately the High Court (Australia's highest), he had failed to exhaust his domestic remedies; and
(3) he had failed to provide sufficient evidence that he was Mr. C.'s de facto partner (ie, that they
were living "in a marriage-like relationship").  The Committee easily dismissed all three objections: 
(1) whether or not Mr. C.'s death was "war-caused," the "domestic bodies seized of the case[] found
the author's sexual orientation to be determinative of lack of entitlement"; (2) "domestic remedies
need not be exhausted if they objectively have no prospect of success"; and (3) whether or not Mr.
Young would have satisfied the other criteria for being a partner, "the only reason provided by the
domestic authorities ... was ... that [Mr. Young] did not satisfy the condition of 'living with a person
of the opposite sex' ... this is the only aspect of the VEA at issue before the Committee."

Turning to the merits, "[t]he Committee recall[ed] its earlier jurisprudence [case law] that the
prohibition against discrimination under article 26 comprises also discrimination based on sexual
orientation ... [and] that differences in the receipt of benefits between married couples and
heterosexual unmarried couples were reasonable and objective, as the couples in question had the
choice to marry with all the entailing consequences. ... [I]t is clear that [Mr. Young], as a same sex
partner, did not have the possibility of entering into marriage. Neither was he recognized as a
cohabiting partner of Mr. C, for the purpose of receiving pension benefits, because of his sex or
sexual orientation.  ... [N]ot every distinction amounts to prohibited discrimination under the
Covenant, as long as it is based on reasonable and objective criteria. The [Australian Government]
provides no arguments on how this distinction between same-sex partners ... and unmarried
heterosexual partners ... is reasonable and objective, and no evidence which would point to the
existence of factors justifying such a distinction has been advanced. In this context, the Committee
finds that the [Australian Government] has violated article 26 ... by denying [Mr. Young] a pension
on the basis of his sex or sexual orientation." 

It remains to be seen whether the Australian Government will comply with the Committee's "views,"
which, unlike a "judgment" of the European Court of Human Rights, governments are not legally
bound to implement.  Compliance would probably mean amending the VEA and dozens of other
federal statutes that provide benefits to unmarried different-sex partners but not to same-sex partners. 
Since 1999, hundreds of similar statutes have been amended by state or territorial legislatures in New
South Wales, Victoria, Western Australia, Queensland, the Australian Capital Territory, and
Tasmania (ie, all Australian jurisdictions except the federal level, the state of South Australia, and
the Northern Territory).  Although the Australian Government took less than nine months to comply
with the Committee's conclusion in _Toonen v. Australia_ (1994), that Tasmania's ban on male-
male sexual activity violated the Covenant's express right of privacy (Article 17), the Australian
Government has yet to comply with a series of recent Committee rulings against its policy of
mandatory detention of asylum-seekers.

There is also some uncertainty as to the precedential strength of _Young_.  In their concurring
opinion, Committee members Ruth Wedgwood (formerly a professor at Yale Law School) and
Franco DePasquale stated that "the posture of the instant case limits the reach of our decision,"
describ[ing] the Committee's decision as a "default judgment" and the case as "not ... contested."
"Many governments and many people of good will share an interest in finding an appropriate moral
and legal answer to the issues and controversies of equalizing various government entitlements
between same-sex and heterosexual couples, including the disputed claim that there is a trans-
jurisdictional right to recognition of gay marriage. ... [T]he Committee has not purported to canvas
the full array of 'reasonable and objective' arguments that other states and other complainants may
offer in the future on these questions in the same or other contexts as those of Mr. Young. ... [T]he
Committee must continue to be mindful of the scope of what it has, and has not, decided in each
case."  Although the Committee did not have the opportunity to consider any justifications in
_Young_, in future cases it will be able to invoke the reasoning of the European Court of Human
Rights in _Karner_, which rejected the Austrian Government's "protection of the traditional family"
justification. _Robert Wintemute_

South African Supreme Court of Appeal Upholds Wrongful Death Action for Surviving Gay Partner

Adopting what it called an "incremental step" in common law development, the Supreme Court of
Appeal of South Africa ruled in _Du Plessis v. Road Accident Fund_, Case No. 443/2002 (Sept. 19,
2003), that the surviving gay life partner of a road accident victim was entitled to apply to the Fund
for compensation on the same basis as a surviving legal spouse.  The decision by Justice Tom Cloate
may be the first non-U.S. decision to cite _Lawrence v. Texas_, and is typical of South African
decisions in drawing on rulings and legal developments from many other jurisdictions, including
England, Canada, New Zealand, the U.S. and the European Union.  

The case arose from the death on September 1, 1999, of Albert Ernest Clack in an auto accident. 
Clack and the plaintiff, Antonie Michael Du Plessis, had been cohabiting partners since March 1988. 
In August 1988, they had a public commitment ceremony with numerous witnesses performed by
a state marriage officer (not acting in his official capacity, of course).  They had made wills in favor
of each other.  On September 1, 1994, Du Plessis was found to be medically disabled and awarded
a small disability pension, but he derived most of his financial support from Clack, who was well-
employed.  South Africa's Road Accident Fund is to compensate individuals for damages due to
accidents, including compensation of surviving legal spouses for loss of income.  Du Plessis applied
for some compensation, but was turned down on the ground that his partnership with Clack was not
legally recognized.  The trial judge sustained the denial of benefits on the ground that it was up to
the Parliament to determine whether same-sex partners should be accorded spousal status.

The Supreme Court of Appeal found, to the contrary, that allowing a surviving same-sex partner in
the position of Du Plessis to claim compensation would be but an incremental change in the common
law in a direction consistent with the South African Constitution, which bans sexual orientation
discrimination, and recent South African case law, including Constitutional Court decisions
authorizing pension rights for the same-sex partner of a lesbian judge and requiring the government
to recognize committed same-sex partners for purposes of residency rights under the immigration
laws.  In the course of his opinion for the court, Judge Cloate also refers to the recent same-sex
marriage decisions in Canada, and notes three U.S. courts that have now found some sort of spousal
rights for same-sex partners - the courts in Hawaii, Alaska, and Vermont that have ruled on same-sex
marriage claims.  The court also noted the authorization for same-sex marriage in the Netherlands
and Belgium, and the growing law supporting legal recognition for same-sex unions in particular
circumstances in England, New Zealand, and the European Union.  

The Fund bases its qualifications for compensation on common law principles, providing
compensation under circumstances where an action for wrongful death would be recognized.  Under
English common law, the wrongful death action was originally authorized only for a widow on the
loss of her husband.  Cloate traced how South African courts have expanded that principle
incrementally by allowing husbands to sue for the wrongful death of a wife and in other particulars. 
He found that the policy grounds normally articulated for such a cause of action are that the deceased
party had an obligation to provide support to the surviving partner, and that the relationship was one
whose recognition was in the interest of society.  He found that both policies applied to this case,
observing that the public commitment ceremony supported an inference of intent by the parties to
be mutually bound for support, and that in this particular case Cleck had been providing substantial
support to Du Plessis for several years since his disability adjudication.  Cloate also saw in the recent
South African case law developments an emerging judgment that same-sex partnerships are valued
and supported under South African law. 

"To extend the action for loss of support to partners in a same-sex permanent life relationship similar
in other respects to marriage," he wrote, "who had a contractual duty to support one another, would
be an incremental step to ensure that the common law accords with the dynamic and evolving fabric
of our society as reflected in the Constitution, recent legislation and judicial pronouncements."

The court also found that Du Plessis was entitled to apply for any actual burial expenses he had
incurred on behalf of Cleck, and for attorneys fees for the two counsel he had retained to handle the
appeal, both of which had been opposed by the Fund.  This was a unanimous decision by the five-
judge panel of the court, and as a common law decision, is not susceptible of appeal to the
Constitutional Court by the government.   A.S.L.

Tasmanian Law Establishes Virtual Equality for Same-Sex Couples

The Australian state of Tasmania has passed ground-breaking relationships law reform legislation. 
 For the purposes of state law the Tasmanian Relationships Act 2003 gives same-sex relationships
virtual equality with married couples. This equality extends to over 100 state laws and includes
everything from state superannuation through next-of-kin, medical treatment and state taxes to
statutory compensation schemes and license transfer fees.   It also includes step-parent adoption, but
does not include general placement adoption or presumption of parenthood for the same-sex partners
of women who conceive through fertilization procedures. It does not cover marriage because that
subject is reserved by the Australian Constitution to the federal government.

The Tasmanian Relationships Act gives a broad range of rights and  responsibilities to a broader
range of significant personal relationships than other domestic partner legislation.  In other 
Australian jurisdictions (Western Australia, New South Wales,  Victoria and Queensland), same-sex
relationship recognition has been achieved largely by rendering the concept of de facto relationship
gender neutral.   At the heart of the Tasmanian statute are two newly created concepts.   One is the
"significant relationship" - a relationship between two adult persons who have a relationship as a
couple and who are not married to one another or related by family. The other new concept (although
a modified version also exists in NSW) is the "caring relationship," which may include two older
companions, a care-giver and the person they care for, people in ethnic or aboriginal families whose
kinship is not recognized by traditional European law, or any two people who are significant to each
other for whatever reason.   There is no requirement for there to be a sexual relationship, or
cohabitation.   The criteria are mutual support and a shared life.   (The terms "de facto relationship,"
"husband," "wife" and "spouse" have been erased from all Tasmanian laws and replaced with the
terms "significant partner" and "caring partner.")

The Relationships Act establishes a registry for all newly enfranchised relationships.  No rights or
responsibilities will flow from registration except recognition of the relationship under state law.  
But registration will be important as a way for people in significant personal relationships to prove
their relationship if challenged, particularly in emergency situations.

As a way for same-sex couples to have their relationships officially and explicitly sanctioned by the
state, the Tasmanian registration scheme is the first in Australia.   There is a 'full faith and credit'
clause in the Australian Constitution. 

The bill and the Act when it commences can be accessed at  http://www.thelaw.tas.gov.au.

_David Buchanan SC_

Canadian Commons Approves Hate Crimes Measure

On Sept. 17, by a vote of 141-110, the House of Commons of the (federal) Parliament of Canada
passed Bill C-250, introduced by Svend Robinson MP (who came out as the House's first openly gay
member in 1988).  Approval by the Senate is expected.  The bill (available at http://www.parl.gc.ca,
Bills) amends s. 319 of the federal Criminal Code (there is only one such code for the entire country
because criminal law is a federal responsibility under the Constitution of Canada), which renders
guilty of an offence "[e]very one who, by communicating statements, other than in private
conversation, wilfully promotes hatred against any identifiable group."  The bill does so by adding
"sexual orientation" to the definition of an "identifiable group" in s. 318(4) ("'identifiable group'
means any section of the public distinguished by colour, race, religion or ethnic origin"), and by
adding "or an opinion based on a belief in a religious text" to the existing defence in s. 319(3)(b)
where the accused "in good faith, ... expressed or attempted to establish by argument an opinion on
a religious subject."  The existing defence was expanded to counter claims that the bill would
criminalise quoting from the Bible.  The other defences in s. 319(3) are:  (a) truth, (c) "relevan[ce]
to any subject of public interest, the discussion of which was for the public benefit," and (d) "in good
faith, ... point[ing] out, for the purpose of removal, matters producing or tending to produce feelings
of hatred towards an identifiable group."  Unlike the US Supreme Court, the European Court and
Commission of Human Rights have frequently and unanimously upheld hate speech legislation as
a justifiable interference with freedom of expression (most recently in the Court's July 7
admissibility decision in _Garaudy v. France_).  The Supreme Court of Canada did so narrowly (5-4)
in _R. v. Keegstra_, [1990] 3 S.C.R. 697.  Canada's bill will join similar legislation in such
jurisdictions as Denmark, Iceland, Ireland, the Netherlands, Norway, South Africa, Spain, Sweden
and the Australian states of New South Wales, Queensland and Tasmania. _Robert Wintemute_

Other International News

_Australia_ - The _Cairns Post_ reported Oct. 1 that the Victorian Civil and Administrative Appeals
Tribunal has revoked an exemption it had given to the organizers of Lezfest 2004 to advertise their
women-only event, having been notified that a transsexual lobby group objected to advertising that
the event was open only to "female-born lesbians."  

_Australia_ - So which country has the most gay couples?  On September 24, newspapers across
Australia, gulled by a spurious survey by a condom manufacturer, proclaimed "Aussie top of the
world for gays," reporting that seventeen percent of Australians were involved in gay and lesbian
relationships, slightly more than the United States, and that Vietnam had the lowest percentage of
gay relationships: 3 percent.  Further inquiry found that the numbers were generated by a poll
conducted by Durex, a condom manufacturer, on its website, asking those who hit the website to
indicate what kind of a relationship they were in.  So, 17 percent of Australians who responded to
a poll by a condom manufacturer on the internet are in gay relationships.  So what?  (Oh, and the poll
also showed that the hottest to trot on earth are the Hungarians, who report an average of 152 sexual
acts with another person per year, Australians coming second with 125.)  _Hobart Mercury_, _Cairns
Post_, _Adelaide Advertiser_, Sept. 24.  Must have been a slow news day....

_Canada_ - An attempt by the opposition Canadian Alliance to put the Liberal governing party on
the spot by proposing a resolution to reaffirm the definition of marriage as a union between one man
and one woman failed on September 16, when members of the 301-member Canadian House of
Commons voted 137-132 to reject the resolution.  Supporters of same-sex marriage were cheered
by the defeat of the resolution, but concerned that the margin of victory was so close, that fewer than
half the members of the entire House cast their votes against the resolution, and that many Liberal
members were among those supporting it.  There was concern that when the affirmative government
bill to recognize same-sex marriage comes to a vote, it may be difficult to carry the House.  The
Liberals actually hold 170 seats.  The government bill now sits with the Supreme Court of Canada,
which has been asked by the government to rule on various questions before the measure is put to
a vote, including whether the bill provides sufficient leeway for religious institutions and whether
the Parliament's action redefining the common law of marriage in Canada will have binding effect
on all the provinces. _Associated Press_, Sept. 17.

_Columbia_ - _Gay.com UK_ reported on Aug. 29 that the government has cancelled its plans to
introduce laws giving same-sex partners certain legal rights, as a result of the Roman Catholic
Church's anti-gay directive issued during the summer, charging Catholic politicians with a moral
duty to refrain from extending any legal rights to same-sex partners.  Columbia is described as a
"strongly Catholic" country.

_Indonesia_   Indonesia's director general of legislation announced Sept. 29 that the government
is working on a new version of sections of the criminal code to reflect the Muslim faith of the
country's majority.  The existing code is largely a legacy of the period of Dutch colonial rule.  Under
the proposed revisions, all non-marital sex would be outlawed, as would be cohabitation and
witchcraft.  Abdul Gani Abdullah, the director general, told Reuters news service that the intent is
not for proactive enforcement, but rather to have the law in place to respond to complaints being
filed.  According to the newspaper article, "Beliefs in witchcraft and mysticism are widespread,
especially on the main island of Java.  Many Indonesians are generally relaxed about homosexuality.
_The Guardian_, Sept. 30.

_Israel_ - The newspaper _Haaretz_ reported on Sept. 8 that a female-to-male transsexual who was
charged with sexually abusing teenage girls had agreed to a plea bargain involving six months of
community service and payment of fines to two of the complainants.  Hen Alkobi claimed that these
had been consensual relationships, and that the girls were pressured by their families into charging
him with raping them with dildos, to avoid the implication that the girls were lesbians.  Alkobi
disputed the court's finding that there was not true consent.  According to the news report, the Haifa
District Court found that Alkobi was guilty of "wrongful impersonation" by not telling these girls
that he was a genital female.  Rejecting the argument that Alkobi could present himself as male in
seeking a sexual relationship with a woman, the court stated: "When a person becomes involved in
intimate relations with another, he or she must reveal his or her identity as a 'male' or 'female,' in
the standard sense of the term.  In a case in which relations of love are established, and the 'consent'
of one side is won without the disclosure of this essential fact, there is a violation of the partner's
autonomy, and the situation cannot be described as 'free consent.'"

_New Zealand_ - As a way of cracking down on fraud committed by heterosexuals in order to gain
permanent residency in New Zealand by marrying New Zealanders and then abandoning them as
soon as their status is permanent, the Immigration Minister, Lianne Dalziel, announced new rules
on September 29 that will have the effect of equalizing treatment of same-sex and opposite-sex
(including married) couples.  Henceforth, all those applying for permanent residency on the basis
of a relationship with a New Zealander will have to prove that they have lived together in a genuine
relationship for at least 12 months.  Under the prior rules, legally married couples did not have to
prove any length of relationship, while unmarried partners (referred to as "de facto couples") had to
prove that their living-together relationship had lasted for two years. _Stuff.co.nz_, September 29.

_Russia_ - The _New York Times_ reported on Sept. 9 that a same-sex couple in Nizhny Novgorod
had been married in a Russian Orthodox service by a priest named Rev. Vladimir of Rozhdestvensky
Church.  Upon news of this having happened during the first week in September, church officials
suspended the priest, who went into seclusion after telling a local news reporter that he had not
performed a wedding ceremony for the two men, Denis Gogolev and Mikhail Morozov.  However,
the _Times_ printed a photograph showing the two men standing hand-in-hand being blessed by the
priest, and the men are wearing the traditional foil crowns worn by Russian males for wedding
ceremonies.  The article described other photographs that had been taken by a friend, showing the
priest undertaking the various steps of the wedding ritual with the two men.  This is the first reported
attempt at a same-sex Orthodox marriage ceremony in Russia.  Mr. Gogolev, a former military
officer, stated that he had bribed the priest to perform the ceremony, and that the priest had muttered
"How shameful" just before the ceremony began.   Although homosexual acts were decriminalized
in Russia during the Gorbachev regime's "perestroika" phase, the gay rights movement remains
small and relatively clandestine in the socially conservative country, according to the _Times_
report.

_Scotland_ - The Scottish Law Commission has circulated a draft Criminal Code for comment.  The
Code will do away with all remaining common law crimes in Scotland and provide that only acts
specified in the Code are forbidden.  The Code includes a hate crimes law that covers offences
motivated by hatred or contempt and includes sexual orientation and gender among the specified
categories.  The sexual offences section provides clarification concerning the details of consent and
modifies existing law on public indecency in ways that, unfortunately, continues to provide
substantial subjectivity and leeway for law enforcement authorities determined to crack down on gay
cruising activity.  The Code is available on-line at www.scotlawcom.gov.uk.  Comments must be
received by December. _Gay Scotland_ No. 146, Oct. 2003.  (Our thanks to Gay Scotland editor
Brian Dempsey for sending us this information.)

_United Kingdom_ - A coalition of British labor unions is mounting an attack to two provisions of
the new government employment regulations that are intended to effectuate the requirement by the
European Union that each member nation ban sexual orientation discrimination in the workplace. 
The unions are complaining that the challenged provisions will allow any employer with some
religious connection to continue to discriminate, and that they will still permit employers to refuse
to provide pension coverage for same-sex partners of workers.   The unions indicated that apart from
these flaws, they were "very happy" with the new regulations.  The unions are bringing their claim
in the High Court, asserting that in these respects the regulations misinterpret the original European
Union's Employment Equality Framework Directive, and could also breach the U.K.'s Human
Rights Act.  The new regulations are intended to become effective on Dec. 1, 2003.

_United Kingdom_ - A multifaith group of religious letters signed a joint letter of support for Dr.
Rowan Williams, the Archbishop of Canterbury, calling for tolerance and an end to homophobia in
religion.  The signers included, for the first time, Muslim religious leaders, as well as liberal Jewish
rabbis and representatives of several Christian denominations.  The main target of the letter is to
criticize fundamentalism and to sound the alarm at attempts by fundamentalists to spread their
influence in England.  One of the letter's organizers, Muhammad Yusuf, the chairman of the Council
of University Imams, said, "All forms of fundamentalism, whether fundamentalist Islamist or
fundamentalist evangelical, are abhorrent to the values of Britain's multi-faith and multicultural
society.  It is time for the moderate majority of Christians, Jews and Muslims in this country to lose
their wishy-washy image." _The Guardian_, Sept. 26.

_United Kingdom - London_ - Responding to complaints from gay groups, London Mayor Ken
Livingston has banned subway advertising by Sandals, a holiday firm that promotes "couples" hotels
for "mixed-sex couples only." "London Underground agreed it is not acceptable for a company with
such an openly discriminatory policy to advertise on public transport in this city," Mr. Livingston
told the _London Independent_ (Sept. 29).  A.S.L. 

Professional Notes

Responding to a request from attorney Daniel L. Weiss of the firm of Shulman & Weiss in Paterson,
N.J., the New Jersey State Bar Association's board of trustees has voted to establish a gay and
lesbian rights committee for the association.  The Association's executive director, Harold L.
Rubenstein, has asked Weiss to recommend names for formal appointment to the committee by the
Association's president.  Members of the bar in New Jersey who are interested in service on this
committee should contact Mr. Weiss at dw.esq@verizon.net or by calling 973-345-1151.  Weiss has
experience in starting new lesbian/gay organizations, having founded the Gay and Lesbian chapter
of the American Immigration Lawyers Association.

LeGaL member Cynthia Schneider, formerly with South Brooklyn Legal Services' HIV Project, is
the new legal director for the Center for Lesbian and Gay Rights in Philadelphia, Pennsylvania.  The
Center provides legal services in the gay community and also initiates test-case litigation.  The
previous legal director of the Center, Tiffany Palmer, resigned in August to co-found a new law
partnership for private practice.  Under Palmer's leadership, the Center had begun a Family Rights
Project. _Center for Lesbian and Gay Civil Rights Press Release_, September 7.

Charles R. Williams, the philanthropist and educator who donated $3 million to UCLA Law School
to begin a Center for sexual orientation law has reached agreement with the school to donate an
additional $4 million.  Another anonymous donor has also come forward with $500,000.  Taken
together, this creates a $7.5 million endowment to underwrite the ongoing work of the Williams
Center on Sexual Orientation Law.  The additional gift will underwrite fellowship and visiting
scholar programs at the Center.  Brad Sears is the administrative director of the Center, and Prof. Bill
Rubenstein, former director of the ACLU Lesbian and Gay Rights Project, is the key faculty member
associated with the Center.

Kentucky State Senator Ernesto Scorsone (D-Lexington) made local headlines on September 30
when he "came out" in the course of a speech to state workers at the Governor's Equal Employment
Opportunity Conference.  His statement makes Scorsone the first openly-gay elected state legislator
in Kentucky.  A longtime member of the legislature, Scorsone made an unsuccessful run for
Congress in 1998, and has not ruled out another try at the federal job.  Although he was not "out"
publicly prior to this statement, Scorsone was known among gay legal advocates for having been the
lead attorney in _Commonwealth of Kentucky v. Wasson_, 842 S.W.2d 487 (Ky. 1992), in which
the Kentucky Supreme Court declared the state's sodomy law unconstitutional as applied to cases
of private, consensual adult sex, and for taking a leading role in public debates on gay and AIDS
issues in the state. _Lexington Herald Leader_, Oct. 1. 

The U.S. Senate unanimously confirmed Michael Mosman to be a U.S. District Judge in Oregon. 
Mosman's nomination had initially stirred opposition from gay groups when it was revealed that he
was the conservative Supreme Court clerk who helped to persuade Justice Powell to vote to uphold
the Georgia sodomy law in _Bowers v. Hardwick_ (1986).  In May, Mosman, who has been serving
as the U.S. Attorney for Oregon, met with gay groups and Senator Ron Wyden to assure them that
his views have changed and that he supports equal rights under the Constitution for gay people.  He
also pledged that he would not let his personal views about abortion affect his official rulings from
the bench.  (As a district judge, he is bound to follow Supreme Court and 9th Circuit precedents.) 
On the basis of this meeting, Sen. Wyden and the gay groups in Oregon dropped their opposition to
the nomination. _The Columbian_, Sept. 27.  A.S.L.

AIDS & RELATED LEGAL NOTES

PWA Entitled to Accommodation Under Fair Housing Act

When a person is disabled as a result of HIV infection and, as a result, is unable to work and has
limited income from his disability benefits, in seeking to rent a new apartment, it is a reasonable
accommodation to require a landlord to alter its rental policies and allow a relative of the disabled
person to co-sign the lease in order to satisfy the landlord's minimum credit and income
requirements.  _Giebeler v. M&B Associates_, 2003 WL 22119329 (9th Cir., September 15, 2003). 


John Giebeler is disabled due to his infection with HIV and unable to work.  Prior to becoming
disabled, Giebeler earned $36,000 per year.  However, since becoming disabled, his income is
limited to the benefits he receives under the Social Security Disability Insurance program.  In 1997,
Giebeler sought to lease a new apartment that was closer to his mother's home and less expensive
than where he was previously residing.  The defendant, M&B Associates, turned down Giebeler's
rental application because of insufficient income.  Giebeler then inquired if his mother could co-sign
the lease.  This request was also turned down.  The landlord maintained a strict policy against having
co-signers on residential leases.   The record before the court indicated that Giebeler's mother had
sufficient income to qualify for the apartment.

District Judge Ronald M. Whyte dismissed the case, finding that changing the landlord's policy (or
making an exception thereto) by allowing the mother to co-sign the lease was beyond the type of
accommodation required by the Fair Housing Amendments Act (FHAA), which forbids disability
discrimination in residential housing.  Judge Whyte held that an accommodation that remedies the
economic status of a disabled person is not the kind of accommodation required by the statute, which
is concerned mainly with physical access.

The 9th Circuit reversed, in an opinion by Circuit Judge Berzon.  The central issue in dispute on
appeal is whether bending a landlord's usual means of testing a prospective tenant's likely ability
to pay the rent over the course of the lease is an accommodation at all within the meaning of the
FHAA.  The court held that permitting Giebeler to live in an apartment rented for him by his
qualified mother would have adjusted for his inability, because of his disability, to earn his own
income while providing the landlord with substantial assurance that the full rent   not a discounted
amount   would be paid monthly.

The 9th Circuit panel found that Giebeler demonstrated that, but for the accommodation, he was
likely to be denied an equal opportunity to enjoy the housing of his choice.  Moreover, the court
found that the accommodation requested was reasonable.  The purpose of the landlord's minimum
income requirement is to ensure that tenants have sufficient income to pay rent consistently and
promptly.  The court held that allowing a financially eligible relative to rent an apartment for a
disabled individual who, except for his current financial circumstances, is qualified to be a tenant
does not unreasonably threaten the landlord's interest.  In addition, the court commented that
although this landlord had a policy against co-signers, in many rental markets it is not unusual for
parents to co-sign leases for their children.  Thus, the court held that requiring the landlord to change
its policy to allow the mother to co-sign the lease was a reasonable accommodation within the
intendment of the FHAA and should have been honored.  The court remanded the matter for further
consistent proceedings. _Todd V. Lamb_

Ohio Appeals Court Orders Trial on Doctor's Unilateral Order for HIV Test

A divided panel of the Court of Appeals of Ohio, First District (Hamilton County) ruled on Sept. 19
that the Court of Common Pleas judge erred in granting summary judgment to a defendant doctor
who had ordered an HIV test of a patient without obtaining specific consent. _Davis v. Liebson_,
2003 Ohio 4965, 2003 WL 22149333.  

Phyllis Davis consulted Dr. Samuel Liebson, a licensed podiatrist, about some problems with her
feet.  Liebson diagnosed "hammertoes" and recommended surgery.  Davis agreed to the surgery. 
During preoperative workup, a nurse drew some of Davis's blood, which Liebson sent out for lab
tests, including an HIV test.  Liebson never specifically asked Davis for permission to test her blood
for HIV.  Before the scheduled surgery date, Davis' employer, also a doctor, told her that surgery was
not necessary for her condition, and another podiatrist she consulted concurred, saying the condition
was treatable without surgery.  Davis cancelled the surgery.  She was subsequently billed for the lab
work and was surprised to discover that she had been tested for HIV; when she then went to
Liebson's office to review her records, she discovered she had also been tested for syphillis without
specific authorization.  Her results on both tests were negative, but she was upset about them even
being performed, and sued under an Ohio statute that requires informed consent for medical testing. 
The statute provides an exception for testing that the doctor deems necessary in his professional
judgment in order to render treatment.

Davis claimed that the HIV and syphillis tests were not necessary for treatment of her foot condition,
and that Liebson ordered the tests to inform himself prior to surgery whether she was infected, rather
than for the purpose of diagnosing or treating her.  Liebson argued to the trial court that he was
exercising his professional judgment as authorized by the statute, and the trial judge agreed.  On
appeal, Davis argued that the standard for evaluating "professional judgment" should be something
closer to the medical malpractice standard   i.e., whether knowledgeable doctors in the community
would require such testing before a foot operation   and not whether Dr. Liebson as an individual
thought it necessary.

Writing for a majority of the court, Judge Doan found guidance in _Littleton v. Good Samaritan
Hospital & Health Center_, 529 N.E.2d 449 (1988), in which the Ohio Supreme Court adopted a
"professional judgment rule," something intermediate between the subjective judgment of the
individual doctor and a medical malpractice standard based on professional consensus.  Although
the _Littleton_ case was decided in a different factual context, Judge Doan found its reasoning
appropriate for this case, and held that the doctor's decision to test without consent should be tested
by both his good faith in ordering the test and a "professional standard" to evaluate whether doctors
in general would give such a test without consent under the circumstances.  The case was remanded,
with a dissent arguing that Dr. Liebson should be shielded from liability so long as he believed in
good faith that the test was appropriate for dealing with Davis's condition, inasmuch as the statute
on its face made an exception to the consent requirement based on the judgment of the doctor. 
A.S.L.

"Psst, Did You Know Doc Johnson Has HIV?"   No Defamation Found

An obstetrician/gynecologist in rural Martin, Tennessee, in the northwestern portion of the state, was
the subject of rumors that she was sending her patients letters informing them that she had tested
HIV+.  She had done no such thing, and the doctor sued for defamation.  However, since no malice
was shown, and the rumor-mongers sincerely believed the story and felt it their duty to spread it, the
defendants were found not liable for defamation. _Whitehurst v. Martin Medical Center, P.C._, 2003
WL 22071467 (Tenn. App. Aug 28, 2003).

The original rumor arose between 1991 and 1993 when Dr. Susan Johnson separated from her
husband, William Whitehurst.  Local residents believe that the rumor may have been started either
by Whitehurst or by the couple's daughter. The '91-'93 rumor was eventually squelched.

This case involves a similar rumor started on Oct. 6, 1997, when an unnamed individual asked a
physician at Martin Medical Center whether he had heard that Dr. Johnson was HIV+. The physician,
Dr. Eason, decided to ask others, and some of those people had "heard something to that effect."
From the doctors at the hospital, the rumor spread to the pharmacists at Wal-Mart, other employees
at the store, and the friends and families of all.  On Oct. 10, someone thought to call Dr. Johnson's
office to find out if the rumor was true. The caller found that the information was not true, related
this news to others, and damage control was begun both at Wal-Mart and at the medical center.

Three months later, Dr. Johnson and her husband sued the medical center and various individuals
for defamation, alleging damage to Dr. Johnson's reputation, to her medical practice, and to her
emotional well-being.

Dr. Johnson moved that the '91-'93 rumors not be allowed as evidence, but her motion was denied.
She also moved to disallow the defendants' "qualified privilege" which would permit them to assert
as a defense a good-faith belief in the truth of the rumors. This motion was granted, but not until
after the testimony had been heard.

The jurors held for the defendants, and Dr. Johnson appealed. She asked that the appellate court
overturn the jury verdict because (1) certain evidence should have been disallowed under the
qualified privilege; (2) the court should not have allowed evidence of the '91-'93 rumors; and (3)
the trial court should have set aside the jury verdict because it defied logic and reason and was
against the weight of evidence.

The appeals court used an abuse-of-discretion standard in analyzing the trial court's result. The
opinion by Judge Holly M. Kirby first outlined the elements required for defamation under
Tennessee law: (a) a statement is published (i.e., publicized, i.e., stated) (b) with knowledge that the
statement is false and defaming (c) or with reckless disregard for the truth of the statement (d) or
negligence in failing to ascertain the truth of the statement. Some degree of fault by the defendants
must be proven.

The "qualified privilege," which was disallowed by the trial court, is a defense in Tennessee
defamation law when statements are made in good faith upon any subject in which the party
communicating has an interest, or as to which he or she has a duty to a person having a
corresponding interest or duty. _Southern Ice Co. v. Black_, 189 S.W. 861, 863 (Tenn.1916).  Actual
malice must be shown by evidence that the defendant had serious doubts as to the truth of the
statement, and that disseminating such statement while doubting it shows reckless disregard for truth
or falsity and demonstrates actual malice. Because the qualified privilege was not permitted, Dr.
Johnson was not required to show actual malice.

Since the qualified privilege was not available, Dr. Johnson contended on appeal that statements
allowed at trial showing a good-faith belief in the truth of the rumors were irrelevant and prejudicial. 
The defendants argued, on the other hand, and the appellate court held, that the statements were
permissible for other purposes. In any defamation case, the jury is entitled to know whether the
defendants knew the statements were false, why the defendants relied on the statements, and why
the defendants disseminated the information. This information (some of which was elicited by the
doctor's own attorney) was highly pertinent to the defendants' fault, an element that the plaintiff had
the burden to prove. The statements were not barred by the qualified privilege.

The court further held that the '91-'93 rumors were pertinent and admissible because one of the
plaintiffs, specifically, Dr. Johnson's husband, may have started the rumors, and a plaintiff cannot
recover if the plaintiff introduced the rumor into the community. In any event, the trial court made
no reversible error in allowing those rumors; there was no abuse of discretion.

The trial court was not required to rule that the verdict was against the weight of the evidence
because the jury had fairly made a determination as to whether the defendants were negligent, and
determining whether the defendant acted prudently is within the province of the jury. The defamation
suit failed, and costs were assigned to Dr. Johnson. _Alan J. Jacobs_

Federal Court Bars Government Liability for 1983 Transfusion

In _Doe v. United States _, 2003 WL 22076706 (Aug. 27, 2003), Judge Osteen of the U.S. District
Court for the Middle District of North Carolina rejected a suit brought by the family of a young
woman  who contracted AIDS during a blood tranfusion.  Finding for the defendant United States,
the court held that the statute of limitations barred the claims, and that the plaintiffs had also failed
to show that the defendants had not satisfied the applicable standard of care, or that there had been
a lack of informed consent.
 
On July 7, 1983, pregnant with her first child and already in labor, plaintiff Jane Doe arrived at the
U.S. Navy Regional Medical Center in Tennessee.  She required an emergency Caesarean section. 
The circumstances surrounding what happened next were hotly contested.  Doe did not recall the
possibility of a transfusion ever having been discussed, nor did she believe that there had been any
consultation as to the risks. The district court held that a consultation had in fact taken place, before
the surgery, because both doctors asserted that it had, and because Doe had signed a waiver
acknowledging the risks. 

After the birth, Doe's condition seemed to improve, but within a couple of days took a turn for the
worse.  Although the court found the evidence sufficient to believe that the two doctors had
consulted with her as to "standard" risks before the Caesarian section, no one discussed the risk of
a possible transfusion subsequent to the birth, and she did not sign any additional waiver or consent
form. Dr. Perez, having been informed of the change in condition, but without examining or
consulting with Doe, ordered a transfusion using blood from a Navy blood bank.  The blood, as was
eventually discovered, was HIV-infected. 

Three years later, in 1986, Doe gave birth to her second child, Baby John Doe. By 1991, Doe had
developed a myriad of health problems.  On July 18, 1995, she tested positive for HIV, and
subsequent testing confirmed the diagnosis. On July 31, 1995, Doe and her husband completed an
adult HIV Confidential Case Report. The report suggested the two possible causes: "sex with male" 
and "transfusion of blood/blood components. " Doe had no sexual partners other than her husband,
who tested negative for HIV.  The Does were concerned nonetheless, because of an affair John Doe
had three years prior.  

By September, 1995, Jane had eliminated all risk factors except for her husband and the 1983
transfusion.  In October 1995, with the Navy blood transfusion as the prime suspect, Doe
authorized Dr. Lane, an infectious disease specialist, to ask the Navy to trace the blood
transfusion.  Lane telephoned the Navy medical center on October 27, 1995, and followed up
with a written request four days later. The Navy's response arrived on October 4, 1996, as a faxed
copy of an internal memo which identified one of Doe's donors as a sailor who had died from
AIDS.  Doe then retained counsel.  In August 1998, Doe's lawyer passed the case to another
lawyer for reasons the court did not discuss.  Her new lawyer filed administrative claims with the
Navy on September 2, 1998.  Nearly three years later, the Navy responded by denying the claims
on statute of limitations grounds.  On July 3, 2001, the Doe family filed the present action with
the District Court.

The court held that under federal law, a plaintiff need have merely "elemental knowledge" of a
claim for the statute of limitations to begin running, and that Doe  possessed such knowledge on
July 31, 1995.  In the court's view, Doe "knew" that the 1983 blood transfusion had caused her
injury as of that date. The court rejected the plaintiffs' contention that they weren't on inquiry
notice until October 4, 1996, the date the Navy informed Doe about the HIV-infected donor. 
Doe argued that she could not know the critical fact about the cause of the infection because that
information remained in the government's hands, but this failed to persuade the court. "Lingering
uncertainty," the court replied, does not prevent claim accrual.  In still stronger language, Judge
Osteen asserted the impossibility of Doe's position because, in the court's view, the "plaintiff
need not know that the suspicious event is more likely than not the cause." Statutes of limitations
may be tolled in the interests of justice, when the plaintiff has been misled or deceived in order to
conceal the existence of a cause of action, but the court found that there was nothing wrongful in
the Navy's year-long delay in answering her doctor, because it was a typical response for the
Navy Blood Program. The court also suggested that Doe's original attorney might have been
blameworthy in failing to make a timely claim, and that the Government cannot be made to
suffer the consequences.

The court further held that even if the statute of limitations had not barred the claims, the
plaintiffs had failed to prove by a preponderance of the evidence that Dr. Perez had violated the
applicable standard of care in ordering a transfusion for Doe, or that Doe had not given informed
consent for the transfusion.  

The Navy's two expert witnesses testified that Dr. Perez's decision to transfuse Doe was an
appropriate course of treatment, and that the care she received exceeded the standard of care in
Tennessee in 1983, when doctors, the court says, considered blood transfusion a low-risk
procedure. The court found that at that time, it was hypothesized that AIDS was a blood-borne
virus, but that "the medical and scientific communities did not reach a consensus that AIDS
could be transmitted by blood until 1984."

The plaintiffs' expert testified that Dr. Perez should have visited Doe before ordering the
transfusion and should have noted his reasons for the transfusion. The plaintiff also introduced
uncontroverted evidence that her post-op symptoms were inconsistent with shock, the danger that
the transfusion purported to avert.  The court discounted this evidence, however, because, in the
opinion of the court, the plaintiff had failed to satisfy the court that even this would have violated
the standard of care in Tennessee in 1983.  The court went on to declare that it was reasonable, at
the time, to give a transfusion to ward off the risk of shock, however remote a possibility.   

Doe also argued that her consent to a Caesarean section on July 8 did not include an implicit
consent to a transfusion the following day, and that it therefore constituted medical battery.  The
defense answered that obstetricians in Tennessee in 1983 did not use a separate consent form
before ordering a post-operative transfusion, because, again, the court emphasized, it was viewed
as a low-risk procedure. As Doe failed to show any evidence to dispute that characterization, the
court accepted this view of the standard of care. 

Doe's final claim, lack of informed consent, was rejected because she failed to show that a
reasonable person would not have consented to the transfusion if adequately informed of all the risks. 
In Tennessee, in 1983, said the court, the standard of care did not require doctors to discuss the risk
of infection, because blood banks screened for known blood-borne infectious diseases such as
malaria, syphilis, and hepatitis. A doctor could, held the court, obtain informed consent before a
surgery without disclosing "every possible thing that might go wrong."  Judgment was granted in
favor of the United States as against the entire Doe family. 

In 1981, Congress gave the National Institutes of Health (NIH) some $3 million for AIDS research
and a year later, upped the amount to more than $21 million. On January 4th, 1983, seven months
before Doe went into labor, the Centers for Disease Control advised the FDA to take certain basic
precautionary measures, which, the CDC said, would eliminate over 90 percent of HIV-contaminated
blood drawn from infected donors.  At that time, the majority of voting members on FDA's Blood
Product Advisory Committee (BPAC) either worked for or had financial interests in blood banking
organizations like the American Red Cross. Ten years later, the Department of Health and Human
Services commissioned a study to explain how HIV had spread through the blood supply in the early
1980s. The study concluded that "a failure of leadership and inadequate decision-making processes" 
caused more than 20,000 people to contract AIDS in the early 1980s, most from blood transfusions.
In particular, the study found, donor screening was ineffective, regulatory action was weak, and
patients were not told enough about AIDS to make informed decisions. The study recommended that
a fund be established to compensate people who were infected with HIV from contaminated blood.
A bill, the "Steve Grissom Relief Fund Act," would provide a one-time payment of $100,000 to each
of the infected individuals, and to about 12,000 others similarly situated.  It has yet to be adopted,
although similar measures have been adopted in some other countries. _Joseph Griffin_

AIDS Litigation Notes

_Federal - 6th Circuit - Ohio_ - In a case where an HIV+ man claims that a police officer used
excessive force to arrest him, a 6th Circuit panel ruled on Sept. 24 that a U.S. district judge in Ohio
had improperly decided a qualified immunity motion against the plaintiff when there were disputed
material facts and the plaintiff's allegations, if true, would establish a constitutional violation for
which immunity would not be available. _D'Agastino v. City of Warren_, 2003 WL 22220530. 
D'Agastino, who had run out of a hospital in his underwear while drunk and then acted in a
disorderly way in traffic on the street, was taken down by police officer Richard Kovach with a
baton.  While D'Agastino was sprawled face-down on the ground, he alleges that Kovach slammed
his head into the pavement several times before making the arrest, causing significant head injuries. 
Kovach denies slamming D'Agastino's head, and pled qualified immunity to D'Agastino's claims
under 42 USC sec. 1983 and state tort law.  The district judge found that D'Agastino's allegations
did not describe unreasonable force under the circumstances such that Kovach should have known
his conduct was unconstitutional; the Circuit panel disagreed, and held that the immunity ruling
should not have been made before a jury could sort out the credibility issues as between
D'Agastino's and Kovach's accounts of the arrest.  The court conceded that D'Agastino might have
problems prevailing, particularly in light of his blood alcohol level at the time of his arrest, but
asserted that he had the right to try.

_Federal - Northern District of Illinois_ - District Judge Kennelly of the U.S. District Court for the
Northern District of Illinois has reversed course in _Cotton v. Alexian Brothers Bonaventure
House_, 2003 WL 22078287 (Sept. 9, 2003), and rescinded an earlier ruling that two state laws were
not violated when two residents were evicted from a long-term care residence for people with HIV. 
The residence claimed that one of the individuals was evicted because he had made a threat to
another resident, and the other because he had entered another resident's room uninvited and
attempted to initiate sexual contact.  The two former residents sued in federal court claiming a
violation of the federal Housing Opportunities for People with AIDS Act (HOPWA), and seeking
to assert supplementary claims under the Illinois Forcible Entry and Detainer Act and the Chicago
Residential Landlord Tenant Ordinance.  Ruling on a summary judgment motion, Judge Kennelly
had dismissed the Illinois and Chicago claims, but on reconsideration decided that the proper course
on the merits of whether those statutes applied to residents of a long-term care facility for people
with AIDS was actually a disputed issue of state law.  The court determined that the better course
would be to decline to assert jurisdiction over those state law claims, which a federal court can do
as an exercise of discretion, since it is unclear how they would be decided by the state courts in the
absence of any published precedents.  

_California_ - Ronald Gene Hill, a former member of the San Francisco Health Commission, was
arrested and jailed on September 17 after being indicted under a state law that makes it a crime
intentionally to infect a sex partner with HIV.  Two HIV+ men testified to the grand jury about have
unprotected sex with Hill after he repeatedly told them that he was HIV-negative, at a time when he
knew he was infected.  There was also evidence that he was actively soliciting sexual activity on the
internet.  If convicted, Hill faces up to eight years in prison. _San Francisco Chronicle_, Sept. 18.

_Colorado_ - Lambda Legal has filed an appeal of a decision by Kaiser Permanente, a large HMO,
denying coverage for a kidney transplant for John Carl, who is living with HIV.  Kaiser rejected
Carl's request, asserting that "kidney transplantation for HIV-positive patients is contraindicated.
. . due to its experimental status and nonfavorable outcomes." Lambda Legal notes that the California
office of Kaiser has approved coverage for kidney transplants, and that peer-reviewed medical
journal articles have concluded that it should not be considered experimental for HIV-positive
patients.  Lambda's formal internal appeal is a prerequisite to litigation. _Lambda Legal_ press
release, Sept. 22.

_Massachusetts_   _Commonwealth v. Boone_, 2003 WL 22087552 (Mass. App. Ct., Sept. 9, 2003)
(unpublished disposition), presents the tragic story of a John Doe victim who claims to have been
raped twice by his HIV+ cousin when he was 14 years old.  According to the unpublished per curiam
opinion, the cousin, who had not disclosed his HIV status to the victim or the victim's family, was
staying in the victims home occasionally beginning in February 1996.  According to the victim's
testimony, he went to bed around 9 pm on his 14th birthday, April 27, and "was awakened by
someone pinning him down on his bed" who he later identified as his cousin, Paul Boone. "He felt
the defendant force his penis into his anus," but struggled free.  He claimed Boone threatened to kill
him if he told anybody.  The victim claimed that another anal assault by Boone took place sometime
in August, followed by a similar threat.  Later in August, Boone told the victim and his family taht
he was HIV+, left and never returned.  Two years later John began to experience troubling
symptoms, was taken to a pediatrician who diagnosed him as HIV+ and experiencing symptoms of
full-blown AIDS.  The victim cried and confessed what had happened to the doctor, who testified
at trial. The defendant presented a medical expert who testified that the victim was likely infected
at an earlier time, since the likelihood that an otherwise healthy teenager would develop full-blown
AIDS less than two years after being first exposed to the virus were about one in a hundred.  The
defendant also presented testimony that the Social Services Department was involved with the
victim's family due to drinking problems by the mother and various unspecified allegations against
the father.  The defendant was convicted of rape and sentenced to five years.  The appellate court
upheld the conviction and sentence, rejecting the argument that the doctor's testimony should have
been rejected or that the trial judge had improperly premised the sentence on a finding that Boone
had actually infected the victim.  The trial judge had made clear on the record that he was imposing
sentence for exposing the victim to HIV in the course of sexual assault, and not for transmitting the
virus.  A.S.L.

International AIDS Notes:

_Great Britain_ - The Association of British Insurers has published a set of proposals for
underwriting procedures that are intended to ensure that gay men receive respectful treatment as
applicants to purchase insurance and that insurance companies do not make assumptions about
applicants' risk of HIV/AIDS or of their sexuality as a result of their occupations.  The proposals
were devised with input from the Terrence Higgins Trust, an AIDS organization that is the
equivalent of Gay Men's Health Crisis in the U.S., and with input from pink-finance.com, an
association of gay people in the financial industry. _The Guardian_, Sept. 23. * * * The Ministry of
Defence has announced a revision to its pension policy under which registered partners of military
service members will be given the same rights as married couples, beginning in 2005.  At the same
time, to help pay for the anticipated expense, the age at which pension entitlement kicks in will be
raised several years. _The Express_, Sept. 16. A.S.L.

_New Zealand & Australia_ - A review has been published of the effectiveness and efficiency of
New Zealand's needle and syringe exchange program (NESP).   Highlights are: the NSEP prevented
an estimated 1,031 HIV infections and 1,091 chronic Hepatitis C infections in IDUs in New Zealand
between 1988 and 2001; 96.5% of users described the service they received at peer-based exchanges
as "good" or "very good"; the program returns $NZ20 in value of blood-borne viruses infections
prevented for every $1 invested.  The full report is available at  
http://www.burnet.edu.au/researchandprograms/epi/downloads/nznsepreview

In Australia, despite the hostility of its current federal government to harm reduction policies in
relation to injecting drug use, its health department has published a similar report on the savings in
dollars and lives achieved by implementing NESPs in Australia at the outset of the HIV/AIDS
epidemic http://www.health.gov.au/pubhlth/publicat/document/roireport.pdf. Still in Australia, an
independent evaluation report of a medically  supervised injecting centre (MISC) pilot project in
Sydney (state of New South Wales) has been published with positive results - principally in the
avoidance of drug overdose-related deaths: http://druginfo.nsw.gov.au/druginfo/reports/msic.pdf  
In what is seen as a politically pragmatic response, the NSW government has announced legislation
authorising the single MSIC operating in Sydney to continue operating for four years but that no
other MISCs will be established. _David Buchanan_

_AIDS Policy Notes:_

A new study is generating controversy over the cause of the AIDS epidemics in sub-Saharan Africa. 
David Gisselquist, described as "an independent economist and anthropologist based in Hershey,
Pennsylvania," undertook a review of past studies on HIV epidemiology in Africa and came to a
strikingly different conclusion from the "official line" spouted by the World Health Organization. 
WHO estimates that 90 percent of HIV infections in sub-Saharan Africa are transmitted sexually. 
This would make South Africa quite different from Europe and North America, and Gisselquist
concludes that the WHO estimates do not match up with the various epidemiological studies.  He
estimates that only one-third of the HIV infections are sexually transmitted, concluding that one-third
are caused by unsafe injections, and the final third passed on by transfusions and other blood-borne
means.  Gisselquist has testified about his findings before the U.S. Senate, seeking to influence how
U.S. funds are spent on HIV prevention activities in Africa, contending that more money should be
spent on education of health care workers and insuring adequate supplies and equipment to improve
the safety of health care services.  Top officials of WHO and the UN AIDS Program are sharply
critical of Gisselquist's methodology, and argue that Gisselquist's proposals would inappropriately
divert prevention money into areas where it would have minimal impact. _Christian Science
Monitor_, Oct. 2. A.S.L.

PUBLICATIONS NOTED & ANNOUNCEMENTS

CONFERENCE ANNOUNCEMENTS

On Saturday, October 11, American University Washington College of Law and the National Center
for Lesbian Rights will present a conference titled "Theory Meets Practice: A Conversation Between
Practitioners Who Represent Lesbian and Gay Parents and Academics Who Write About Legal
Issues Relevant to Their Work." There will be a private component of the event for invited
academics and practitioners to exchange information about the latest scholarship and the pressing
practical issues, as well as a public component.  Information and on-line registration materials can
be found at www.wcl.american.edu/secle. 

Lavender Law 2003 will be held on Friday, October 17, through Sunday, October 19, in New York
City.  This national lesbian/gay/bisexual/Transgender/AIDS law conference provides the annual
meeting for the National Lesbian and Gay Law Association, and is co-sponsored by the Association's
Foundation, the Lesbian and Gay Law Association of Greater New York, and several NYC-area law
schools.  Events will be held at the Association of the Bar of the City of New York and at Fordham
University Law School's Lincoln Center Campus.  The keynote speaker will be Paul Smith, the
victorious Supreme Court advocate in _Lawrence v. Texas_.  The annual Dan Bradley Award
recognizing professional contributions to lesbian and gay law will be given to Matt Coles and Leslie
Cooper of the ACLU Lesbian and Gay Rights Project, with particular reference to their work on a
case challenging the constitutionality of Florida's statutory ban on adoption of children by gay
parents.   For details and registration materials, check the conference website: www.lavenderlaw.org.

On Friday, November 7, the Moritz College of Law at Ohio State University in Columbus will host
a full-day program titled "Equality, Privacy and Lesbian and Gay Rights After _Lawrence v.
Texas_." The opening keynote address will be given by Prof. Cass Sunstein of the University of
Chicago Law School, and the closing keynote address will be given by Prof. Catharine A.
MacKinnon of the University of Michigan Law School.  The panelists include an array of prominent
names, including Prof. William Eskridge, Jr., of Yale, prolific author on gay law, and Prof. Charles
Fried of Harvard, former Solicitor General of the U.S. in the Reagan Administration and former
justice of the Massachusetts Supreme Judicial Court.  The full list of moderators and panelists can
be found on the symposium's website, www.moritzlaw.osu.edu/lawjournal/symposium.html.  The
symposium will be webcast live for those who are interested but unable to attend.

LESBIAN & GAY & RELATED LEGAL ISSUES:

Bader, Eleanor J., Review of _The Sharon Kowalski Case: Lesbian and Gay Rights on Trial_ by
Casey Charles (Univ. Press of Kansas, 2003), NYLJ, 9/5/2003, p. 2.

Bhagwat, Ashutosh, _What If I Want My Kids to Watch Pornography?: Protecting Children From
"Indecent" Speech_, 11 Wm. & Mary Bill of Rights J. 671 (Feb. 2003).

Corlett, J. Angelo, and Robert Francescotti, _Foundations of a Theory of Hate Speech_, 48 Wayne
L. Rev. 1071 (Fall 2002).

Cvetkovski, Cvetan, _Equal Protection Arguments in Constitutional Claims for Same-Sex Marriage:
Does the Equal Protection Doctrine Mandate Legalization of Same-Sex Marriage?_, 10 J. Const. L.
In Eastern & Central Europe 43 (2003).

Dauvergne, C. and J. Millbank, _Crusingforsex.com: An empirical critique of the evidentiary
practices of the Australian Refugee Review Tribunal: A six year comparative study of refugee cases
involving lesbians and gay men in Australia and Canada_ 28(4) Alternative LJ 178-181 (2003)
<http://www.altlj.org/>.

Feldmeier, John P., _Close Enough for Government Work: An Examination of Congressional Efforts
to Reduce the Government's Burden of Proof in Child Pornography Cases_, 30 N. Ky. L. Rev. 205
(2003).

Fink, Howard, and June Carbone, _Between Private Ordering and Public Fiat: A New Paradigm for
Family Law Decision-making_, 5 J. L. & Fam. Studies 1 (2003).

Goldstein, Richard, _Liberation vs. "Progress": A Challenge to Queer People & Their Allies_, 60
Guild Practitioner 112 (Spring 2003).

Green, Steven K., _Religious Discrimination, Public Funding, and Constitutional Values_, 30
Hastings Constitutional L. Q. 1 (Spring 2002).

Gregory, John DeWitt, _Family Privacy and the Custody and Visition Rights of Adult Outsiders_,
20 GPSOLO (ABA) No. 2, 22 (March 2003).

Heyman, Steven J., _Ideological Conflict and the First Amendment_, 78 Chi-Kent L. Rev. 531
(2003) (focus on the legal status of pornography).

Heyman, Steven J., _Spheres of Autonomy: Reforming the Content Neutrality Doctrine in First
Amendment Jurisprudence_, 10 Wm. & Mary Bill of Rts. J. 647 (April 2002) (includes discussion
on hate speech laws).

Hull, Kathleen E., _The Cultural Power of Law and the Cultural Enactment of Legality: The Case
of Same-Sex Marriage_, 28 L. & Social Inquiry 629 (Summer 2003).

Hutchinson, Darren Lenard, _Factless Jurisprudence_, 34 Columbia Hum. Rts. L. Rev. 615 (Summer
2003) (Comment responding to lead article by Terry Smith, titled "Everyday Indignities: Race,
Retaliation, and the Promise of Title VII," as part of a symposium titled "Combating Subtle
Discrimination in the Workplace." Hutchinson discussed application of Smith's analysis to lesbian
and gay workplace issues.)

Levitan, Shari A., and Ellen S. Berkowitz, _Unmarried But Protected_, 142 Trusts & Estates (ABA)
No. 9, 28 (September 2003) (how to create tax-efficient plans to meet the objectives of unmarried
same-sex and opposite-sex couples).

Lezin, Justyn, _(Mis)Conceptions: Unjust Limitations on Legally Unmarried Women's Access to
Reproductive Technology and Their Use of Known Donors_, 14 Hastings Women's L.J. 185
(Summer 2003).

Marshall, Anna-Maria, _Injustice Frames, Legality, and the Everyday Construction of Sexual
Harassment_, 28 L. & Social Inquiry 659 (Summer 2003).

McGowan, Sharon M., _The Bona Fide Body: Title VII's Last Bastion of Intentional Sex
Discrimination_, 12 Columbia J. Gender & L. 77 (2003).

Norrie, Kenneth McK., _Would Scots Law Recognise a Dutch Same-Sex Marriage?_, 7 Edinburgh
L. Rev. 147 (May 2003).

Peterman, Larry, and Tiffany Jones, _Defending Family Privacy_, 5 J. L. & Fam. Studies 71 (2003).

Schmidt, Christopher J., _Revitalizing the Quiet Ninth Amendment: Determining Unenumerated
Rights and Eliminating Substantive Due Process_, 32 U. Balt. L. Rev. 169 (Spring 2003).

_Student Articles:_

_1999 Michigan Senate Bill No. 936: Constitutional in the Face of a Strict Scrutiny Analysis When
Requiring Public Libraries to Restrict Minors' Access to Harmful Material on the Internet_, 48
Wayne L. Rev. 1259 (Fall 2002).

Baruch, Jason, _Constitutional Law: Permitting Virtual Child Pornography   A First Amendment
Requirement, Bad Policy, or Both?_, 55 Fla. L. Rev. 1073 (Sept. 2003).

Bovalino, Kristin M., _How the Effeminate Male Can Maximize His Odds of Winning Title VII
Litigation_, 53 Syracuse L. Rev. 1117 (2003).

Boykin, Charles, Ashcroft v. Free Speech Coalition et. al._: Is the Child Pornography Prevention Act
First Amendment Friendly, or a Virtual Disaster?_, 30 Southern U. L. Rev. 261 (Spring 2003).

Daugherty, Michael G., _The Ninth Circuit, the BIA, and the INS: The Shifting State of the
Particular Social Group Definition in the Ninth Circuit and its Impact on Pending and Future Cases_,
41 Brandeis L.J. - Univ. of Louisville 631 (2003).

Daugherty, Jennifer G., _Sex Offender Registration Laws and Procedural Due Process: Why_ Doe
v. Department of Public Safety Ex Rel. Lee_ Should be Overturned_, 26 Hamline L. Rev. 714
(2003).

Hydorn, Anne C., _Does the Constitutional Right to Privacy Protect Forced Disclosure of Sexual
Orientation?_, 30 Hastings Constitutional L. Q. 237 (Winter 2003).

McAfee, Bryan T., Ashcroft v. American Civil Liberties Union_: The Latest Attempt to Protect
Children From Internet Pornography_, 5 J. L. & Fam. Studies 159 (2003).

Pallios, Andrea, _Should We Have Faith in the Faith-Based Initiative: A Constitutional Analysis of
President Bush's Charitable Choice Plan_, 30 Hastings Constitutional L. Q. 131 (Summer 2002).

Voigt, Eric P., _Reconsidering the Mythical Advantages of Cohabitation: Why Marriage Is More
Efficient than Cohabitation_, 78 Indiana L. J. 1069 (Fall 2003).

_Specially Noted:_

The _Georgetown Journal of Gender and the Law_ has published its annual review issue, Vol. IV,
No. 1 (Fall 2002) which, despite the cover date, was received on September 3, 2003.   The student-
written review issue is broken down into five categories: Constitutional Law, Family Law, Education
Law, Violence Law, and Employment Law. To judge by some of the sections we sampled, the essays
were completed prior to the major Supreme Court decisions announced toward the end of the 2002-
03 term of the Court in June.

Vol. 11, No. 2 of _American University Journal of Gender, Social Policy & the Law_ is devoted to
a symposium titled: "Confronting Domestic Violence and Achieving Gender Equality: Evaluating
_Battered Women & Feminist Lawmaking_ by Elizabeth Schneider." * * * Vol. 55, No. 6 of the
_Stanford Law Review_ (June 2003) includes a "Book Review Symposium" reflecting on different
forms of discrimination.

A First Amendment symposium in 41 Brandeis L. J. - Univ. Of Louisville No. 3 (2003) includes
several articles about regulation of sexual content on the internet: William D. Araiza, _Captive
Audiences, Children, and the Internet_, at 397; Ronald J. Krotoszynski, Jr., _Childproofing the
Internet_, at 447; Katherine S. Williams, _Child-Pornography and Regulation of the Internet in the
United Kingdom: The Impact on Fundamental Rights and International Relations_, at 463.

AIDS & RELATED LEGAL ISSUES:

Bagenstos, Samuel R., _"Rational Discrimination," Accommodation, and the Politics of (Disability)
Civil Rights_, 89 Va. L. Rev. 825 (Sept. 2003).

Gostin, Lawrence O., _The Global Reach of HIV/AIDS: Science, Politics, Economics, and
Research_, 17 Emory Int'l L. Rev. 1 (Spring 2003).

Kutcher, Norman, _To Speak the Unspeakable: AIDS, Culture, and the Rule of Law in China_, 30
Syracuse J. Int'l L. & Commerce 271 (Summer 2003).

Lee, Lisa M., Matthew T. McKenna, and Robert S. Janssen, _Classification of Transmission Risk
in the National HIV/AIDS Surveillance System_, 118 Pub. Health Rep. 400 (Oct. 2003).

Tveiten, Margit, _The Right to Health Secured HIV/AIDS Medicine - Socio-Economic Rights in
South Africa_, 72 Nordic J. Of Int'l L. 41 (2003).

_Students Articles:_

Renquin, Meredith, _AIDS 2002, Barcelona_, 19 N.Y.L.S. J. Of Hum. Rts. 869 (Summer 2003).

EDITOR'S NOTE:

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