LESBIAN/GAY LAW NOTES ISSN 8755-9021 June 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. SUPREME COURT INVALIDATES LAWS AGAINST CONSENSUAL SODOMY; MAJORITY VOTES TO OVERRULE _BOWERS V. HARDWICK_ In a ruling that totally demolishes the precedent of _Bowers v. Hardwick_, 478 U.S. 186 (1986), the U.S. Supreme Court held on June 26 that state laws criminalizing consensual, private non- commercial sex between adults violate the individuals' liberty interests under the Due Process Clause of the 14th Amendment. _Lawrence v. Texas_, 123 S.Ct. 2472, 2003 WL 21467086. Writing for the Court, Justice Anthony M. Kennedy asserted that "_Bowers_ was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. _Bowers v. Hardwick_ should be and now is overruled." The immediate effect of the decision was to reverse the convictions of petitioners John Geddes Lawrence and Tyron Garner under the Texas Homosexual Conduct Law and to render that law unenforceable in cases of private, adult consensual sex, as well as to signal the invalidity of the remaining sodomy laws in other states as applied to such conduct. Joining Justice Kennedy's opinion were Justices John Paul Stevens (who had dissented in _Bowers_), David Souter, Ruth Bader Ginsburg, and Stephen Breyer. In a separate opinion, Justice Sandra Day O'Connor argued that the Texas Homosexual Conduct Law should be struck down as a violation of the Equal Protection Clause, but she refused to join in overruling _Bowers_, a case in which she had voted with the majority to uphold Georgia's sodomy law against a 14th Amendment due process challenge. The entirely predictable dissenters were Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, with written opinions by Scalia and Thomas. Scalia's fulminating dissent was lengthier than Kennedy's opinion for the 5-member majority. Lambda Legal represented Lawrence and Garner, Texas men who were arrested in Lawrence's bedroom when police officers responding to a false report discovered them engaged in anal intercourse. A local cooperating attorney in Houston, Mitchell Katine, represented the defendants in the Texas trial courts, and Lambda Legal Director Ruth Harlow presented their argument to the Texas Court of Appeals. Paul Smith, an appellate advocate at the D.C. office of Jenner & Block, argued the case before the Supreme Court as a cooperating attorney for Lambda. Lawrence and Garner originally pled guilty in a Justice of the Peace court but preserved their constitutional challenge to the statute for appeal. The Texas statute, as its name suggests, criminalizes sexual contact between persons of the same sex, while imposing no liability on opposite-sex partners who engage in the same kind of conduct. It was adopted during the 1970s after a three-judge district court had declared unconstitutional a predecessor felony sodomy law that applied to all anal or oral sex regardless of the gender of the parties. The defendants achieved a brief success on appeal in the Texas courts, when a three-judge appellate panel agreed with them that the state's sodomy law violated their state and federal constitutional rights, but the en banc 14th District Court of Appeal reversed, citing _Bowers v. Hardwick_ as dispositive. See 41 S.W.3d 349 (Tex. App. 2001). The Texas Court of Criminal Appeals, the highest state appellate court for criminal cases, declined to review the case. When Lambda Legal petitioned for certiorari, they had a strategic decision to make: whether to mount a narrowly-focused equal protection challenge, or whether to attempt to topple all the remaining state sodomy laws by asking the Court to find a due process violation and overrule _Bowers_. Lambda decided to ask the Court to overrule _Bowers_ as well as to address both equal protection and privacy issues, and, to the surprise of many, the Court included that all three questions in its order granting certiorari. Lambda decided the risk of defeat was worth taking in light of the changes that had occurred since _Bowers_ was decided, including several state sodomy law invalidations, both judicially and legislatively, significant changes in public opinion, and subsequent decisions by the Court indicating some receptivity to a broader holding, most notably _Romer v. Evans_, the 1996 case in which Justice Kennedy, writing for a six-member majority of the Court, found that there was no rational basis for Colorado to have amended its state constitution to prohibit any policy protecting gay people from discrimination. The gamble paid off handsomely, as the Court took the bait and overruled _Bowers v. Hardwick_.. Kennedy's opinion, after a brief preamble summarizing his view of the Court's "liberty" jurisprudence that clearly flags the outcome of the case, immediately addressed _Bowers_, which was the main obstacle to a constitutional challenge. After reviewing the key Supreme Court privacy precedents that led up to _Bowers_, Kennedy asserted that the Court erred in _Bowers_ in several respects, including how it conceptualized the case, how it relied on incomplete or distorted history to find support for the contention that the case did not involve a deeply-rooted right protected by substantive due process, and how _Bowers_ was out of step with the emerging international human rights consensus. Writing for the majority in _Bowers_, Justice Byron White had framed the question as whether the constitution "confers a fundamental right upon homosexuals to engage in sodomy." Kennedy found this to be a distorted view of what the case was about, as had Justice Harry Blackmun in his dissenting opinion in _Bowers_. "That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake," wrote Kennedy. While the challenged statutes directly regulate conduct, to focus narrowly on that trivializes the interests involved. "To say that the issue in _Bowers_ was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in _Bowers_ and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." In _Bowers_, Justice White had insisted that in order to achieve constitutional protection, the conduct had to be something that was historically valued and protected, and cited the long history of sodomy laws for the proposition that "homosexual sodomy" enjoyed no such status. Kennedy noted that the historical aspect of the _Bowers_ opinion had attracted much adverse criticism, due to its oversimplification of the situation regarding ancient laws. Until relatively recently, all sodomy laws in the U.S., deriving from the statute passed by the English Parliament during the reign of Henry VIII, were concerned only with acts and not with the sex of those engaging in them. Indeed, as Kennedy notes, contemporary historians of human sexuality have argued that the concept of "the homosexual" did not exist as such, either in popular understanding or in the eyes of the law, until late in the 19th century, and it was not until the 1970s, when legislatures were getting around to modernizing their penal codes in light of the recommendations put forth by the American Law Institute in its Model Penal Code, that U.S. sodomy statutes were enacted focusing solely on same-sex conduct, and even then only in a handful of states. (On the date _Lawrence_ was decided, the only states that penalized solely same-sex conduct were the geographically contiguous states of Texas, Oklahoma, Kansas and Missouri.) Thus, the historical record does not support Justice White's assertion that there is a long history of singling out homosexual conduct, as such, for condemnation. "In summary, the historical grounds relied upon in _Bowers_ are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated." Kennedy conceded that White and Burger were correct on a more general level in contending that there was not a historical tradition of favorable views towards homosexuality, but noted that the ground has shifted in the past half century, beginning with the ALI's recommendation to decriminalize private, adult consensual sex, the subsequent law reform in many U.S. jurisdictions, and the reformist move in English flowing from the Wolfenden Committee report and leading to repeal of the sodomy laws in Great Britain in 1967. Kennedy also noted that the European Court of Human Rights had invalidated Northern Ireland's sodomy law several years prior to _Bowers_. And Kennedy observed that since _Bowers_, judicial and public opinion has moved on. More states have invalidated sodomy laws through judicial action and there have been more legislative repeals, reducing the number of states with actively, enforceable sodomy laws to just 13. (In an interesting coincidence pointed out in some media reports after the decision was announced, all of those thirteen states cast their electoral votes for George Bush in 2000.) Kennedy also pointed to subsequent developments in Supreme Court opinions, including the newly energized "liberty" jurisprudence under the Due Process Clause that emerged from the Court's decision reaffirming the right of abortion in _Planned Parenthood v. Casey_, 505 U.S. 833 (1992), and the opinion in _Romer v. Evans_, 517 U.S. 620 (1996), in which Kennedy, writing for the Court, struck down Colorado Amendment 2 as a measure adopted as an expression of anti-gay bias. _Romer_ was decided as an equal protection case; Kennedy acknowledged that _Romer_, in that respect, provides the basis for a "tenable argument" to strike down the Texas statute, but he clearly wanted to issue a ruling that would affect all the existing sodomy laws, stating: "Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants." Kennedy then goes on to assert that protecting individual rights under the rubric of "liberty" also advances the equal protection interests in the case. Justifying the broader due process approach, he argued: "If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of _Bowers_ has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons." It is well to pause at this point and wonder where this rhetoric of respect came from, since it is not characteristic of prior Supreme Court opinions. Respect for human dignity is not a principle clearly articulated in the Constitution or previously developed at any length in American constitutional law as an articulated premise. One suspects that Justice Kennedy (or his clerks) has been influenced by the rhetoric of the European Court of Human Rights and of the Canadian courts in recent decisions concerning legal recognition for same-sex partners and marriage rights. The European Charter does speak in terms of "respect" for private life, and such language was especially prominent in the Ontario Court of Appeals marriage ruling that emerged just weeks before _Lawrence_. Perhaps this is a case where, unusually, the Supreme Court of the U.S. is being influenced by the rulings of non-U.S. courts on a matter that implicates human rights at a fundamental level. Certainly, Justice Kennedy's citation of judicial developments in Europe and elsewhere was seen by many commentators as noteworthy and, in the context of a majority opinion, perhaps unprecedented in the Supreme Court's practice. Kennedy continued by noting the ways in which enforcement of sodomy laws results in stigma and disadvantage to those caught in the net, and rehearses the sharp criticisms of _Bowers_ by legal commentators. Interestingly, Kennedy cited books by two conservative legal scholars, Charles Fried and Richard Posner, to support this point, perhaps intending to signal that the approach he is taking here is consistent with conservative political values. (A prominent citation to the amicus brief filed by the Cato Institute, a libertarian think tank, is another instance of this.) Kennedy then grappled with the issue of stare decisis, and what principles should govern when the Court is asked to overrule a relatively recent precedent. He noted that issues of stare decisis differ depending on the nature of the case, and that the doctrine has less of a role to play in constitutional adjudication than in statutory adjudication, especially where the case did not, in his view, implicate a prior holding upon which people had extensively relied in structuring their lives (by contrast with the abortion decisions). Indeed, he found _Bowers_ was not a strong precedent to rely upon in light of developments subsequent to its issuance. "The rationale of _Bowers_ does not withstand careful analysis," Kennedy asserted, following with a lengthy quotation from Justice Stevens' dissent in the earlier case. "Justice Stevens' analysis, in our view, should have been controlling in _Bowers_ and should control here." Emphasizing that this was a case involving adults engaged in private consensual activity, Kennedy insisted that the petitioners "are entitled to respect for their private lives. . . . The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government." Kennedy concluded by invoking the concept of development of constitutional principles in response to societal change, throwing Justice Scalia some red meat for his ensuing attack. Kennedy never directly addressed in his opinion, in terminology familiar from prior case law, whether the claimed right in this case was a fundamental right, or what level of judicial scrutiny should be used to evaluate the state's asserted interests in abridging it. As in his opinion in _Romer v. Evans_, Kennedy evaded the more usual type of constitutional analysis familiar from law school Constitutional Law classes and law review articles by asserting his conclusion strongly without providing a clear analytical framework for reaching it, thus laying the opinion open to severe criticism from Scalia, the former law professor and pedant. In her concurring opinion, Justice O'Connor noted that she had joined the opinion in _Bowers_ and would not now join the Court in overruling it, for reasons she does not articulate. But she then immediately stated her agreement that the Texas law is unconstitutional, invoking the Equal Protection Clause. Without engaging in any self-conscious discussion of whether sexual orientation is a suspect classification, she assumed that this case implicates the kind of "searching" rationality review characteristic of cases where "the challenged legislation inhibits personal relationships." She argued that although the Court found in _Bowers_ that the state's moral choice to condemn homosexual conduct was sufficient rational basis to withstand a due process challenge, such a justification would not suffice in an Equal Protection case subject to such "searching" review. Perhaps she was trying to make the point that the history of moral disapproval embodied in sodomy statutes generally has been a disapproval of sodomy, not homosexuality, as such, another way of making the same point Kennedy was making in his critique of the _Bowers_ decision's historiography. For O'Connor, moral disapproval of particular conduct will suffice to preserve the statute in a Due Process challenge, but moral disapproval of a group of people, subjecting them to a different rule of law, may not be constitutionally defensible. Hair-splitting? O'Connor rejected the absurd argument that Texas made before the Court that the statute does not discriminate against gay people because even heterosexuals are forbidden to engage in homosexual acts. "While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual," she wrote. "Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class." (Interesting to observe that Kennedy insists on referring to "homosexuals" while O'Connor speaks of "gay persons.") O'Connor finds confirmation of her view that the Texas sodomy law is directed toward gay people as a "class" in the way the Texas courts treat defamation claims; they view a false imputation of homosexuality as per se defamatory, based on the notion that it is, in effect, the imputation of criminal conduct. In a prior Texas case in which the sodomy law was challenged, a Texas appellate panel had stated: "The statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law." Both Kennedy and O'Connor insisted that this decision would not necessarily determine other hotly argued gay rights issues, such as same-sex marriage. As noted above, Kennedy stated that sodomy laws "do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." O'Connor, speaking more directly to the point, stated that the unconstitutionality of the sodomy law "does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations the asserted state interest in this case other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group." But she does not specify what those reasons are. Justice Scalia wrote his usual venom-filled dissent, accusing the majority of the court of having enlisted in the "so-called homosexual agenda," which he then defined as attempting to achieve real equality and an end to any social stigma for gay people. Sounds like an eminently reasonable agenda to me, but I'm unaware that any representative enclave of gay people has actually adopted it formally. Scalia's opinion is consumed with taking pot-shots at the majority and concurring opinions for their analytical weaknesses and failures to engage in traditional constitutional analysis, and asserts that the majority has basically enlisted in the "culture wars" on the side of the homosexuals. Justice Thomas's brief dissent is more tempered and actually surprising in some respects. Harking back to Justice Potter Stewart's dissent in _Griswold v. Connecticut_, 381 U.S. 479 (1965), in which Stewart referred to the anti-contraception law as "uncommonly silly," Thomas found that description appropriate for the Texas Homosexual Conduct Law and said, "If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources." But he goes on to say that he can't find in the text of the constitution the rights of privacy or liberty described by Justice Kennedy, so as a judge he lacks the authority to invalidate the statute. Perhaps the best way to conclude this brief description of the case is to quote Justice Kennedy's preamble. "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions." Continuing a course set in _Planned Parenthood v. Casey_, the Court majority no longer speaks in terms of privacy, but instead couches its decision in the text of the 14th Amendment by invoking "liberty" as the interest it is protecting. Justice Scalia's concern about the Court enlisting in the "so-called homosexual agenda" sparks an ironic observation: a few days after the decision was released, Lambda Legal announced to the world that it had established a website detailing the plan of action for establishing gay legal equality in light of the _Lawrence_ decision. So now there is a gay legal agenda, posted on the Internet, but it seems a bit different from the one foreseen by Scalia, since Lambda is not particularly concerned with attacking laws on incest, masturbation and polygamy. Lambda's "agenda" can be viewed at Lambda's website: www.LambdaLegal.org. Another irony worth noting is that Justice Kennedy was appointed to the Court to take the seat vacated by the retirement of Justice Lewis F. Powell, who was the "swing" vote in _Bowers_ and who, after retiring from the Court, stated publicly that he had come to believe that the case should have come out differently and he regretted his vote. Sitting in Justice Powell's place, Kennedy now asserts, as Powell came to believe, that _Bowers_ was wrongly decided. Poetic justice, in more ways than one! The breadth of Justice Kennedy's rhetoric led to much speculation about how _Lawrence_ would be construed as a precedent by the lower courts and in subsequent Supreme Court decisions raising due process and equal protection claims. One hint was given the next day, when the Court acted on a pending cert. petition in another case (see below). There was immediate speculation that the ruling made the "Don't Ask, Don't Tell" military policy much more vulnerable to attack, grounded as it was in anti-gay antipathy overtly expressed in the Congressional findings leading to its adoption (10 U.S.C. sec. 654). This issue may play out quickly, as Loren S. Loomis, a former Army lieutenant colonel who was discharged for being gay in 1997 filed a federal lawsuit on July 8 challenging the constitutionality of the policy and seeking to have his discharge reversed and his service record corrected. Much is at stake for Mr. Loomis, whose discharge came shortly before he would have earned the right to a substantial military pension after nearly two decades of honorable service, including several decorations for his service in Vietnam. _New York Times_, July 9. And, as per Scalia's dissent, there was much panic articulated from the right wing about same-sex marriage, with Senate Majority Leader Bill Frist promptly endorsing a constitutional amendment against same-sex marriage that had been introduced recently. However, on July 2 President George Bush responded to a reporter's question about the amendment by stating, "I don't know if it's necessary yet. Let's let the lawyers look at the full ramifications of the recent Supreme Court hearing. What I do support is a notion that marriage is between a man and a woman." _Associated Press_, July 3. On a more practical level, law enforcement officials in states that still have sodomy laws on the books had to determine how their activities would be affected by _Lawrence_. On its face, Justice Kennedy's opinion was careful to circumscribe the holding to criminalization of private, non-commercial, consensual sex between adults, leaving open questions about laws on loitering and solicitation, such as the Model Penal Code's penalties for loitering in a public place for the purpose of soliciting "deviate sexual intercourse." The New York Court of Appeals struck down such a law shortly after having invalidated that state's sodomy law, on the ground that the state no longer had an interest in preventing such conduct from taking place in private, so the statute's failure to differentiate between solicitation for private acts and solicitation for public acts was a fatal flaw. The U.S. Supreme Court granted certiorari in that case, but then dismissed the writ after hearing oral argument without ruling on the merits. _See People v. Uplinger_, 58 N.Y.2d 936 (1983), _certiorari dismissed as improvidently granted_, 467 U.S. 246 (1984). In the days after the ruling, we saw press reports from Utah, Texas, North Carolina, and Michigan concerning uncertainty by law enforcement officials or, in some cases, assertions of a continued right to enforce the laws to the extent possible in light of _Lawrence_, such as continuing to go after gay men who cruise in parks and public restrooms. A.S.L LESBIAN/GAY LEGAL NEWS Supreme Court Directs Reconsideration of Kansas Sodomy Conviction; Unexplained Decision Suggests Equal Protection Component to _Lawrence v. Texas_ On June 27, the Supreme Court indirectly suggested the potential scope of _Lawrence_ by granting certiorari in _Limon v. Kansas_, 41 P.3d 303 (Kan. App., 2002) (table; text not published), vacating the judgment of the Kansas Court of Appeals, and remanding the case "for further consideration in light of _Lawrence v. Texas_." The ACLU represents Matthew Limon, who received a 17-year prison sentence for performing consensual oral sex with a fellow male resident of a school for developmentally disabled youth in Miami County, Kansas. Limon was 18 and the other youth was almost 15 years old at the time of the offense. Under Kansas law, had the "victim" been a person of the opposite sex, the maximum sentence that could be imposed would be fifteen months. The Kansas Court of Appeals rejected the ACLU's argument that this violates Limon's equal protection rights, in an unpublished opinion that was denied review by the Kansas Supreme Court last June. The Supreme Court's decision to vacate and remand raises fascinating questions: The Court decided _Lawrence_ as a due process case; the only member of the majority who addressed equal protection issues in any depth was Justice O'Connor, whose concurring opinion carries little precedential weight since she was the 6th vote to strike the Texas law, so her vote was not needed to overrule _Bowers_ on due process grounds (and she did not agree that _Bowers_ should be overruled). Does this action by the Court on _Limon_'s petition mean that a majority of the Court is willing to entertain a broader reading of gay equal protection rights derived from _Lawrence_? There are additional interesting issues here, especially capacity and consent. The ultimate result of this one is sure to be interesting. A.S.L. Same-Sex Marriage Comes to North America; Canadian Courts Order Immediate Issuance of Licenses to Same-Sex Partners, and Federal Government Goes Along Only three years after they began, Canada's latest same-sex marriage cases have succeeded in bringing the walls excluding same-sex couples from civil marriage tumbling down across the country. Canada is the first country in the world in which this breakthrough has been achieved in whole or part through litigation, rather than solely through legislation, as in the Netherlands and Belgium. Marriage cases had failed in 1974 and 1993, but the Supreme Court's decision in _M. v. H._ in 1999 that Section 15(1) of the Canadian Charter of Rights and Freedoms requires equal treatment of unmarried different-sex and same-sex couples (see June 1999 LGLN) set the stage for another attempt to open up marriage. Three Charter cases began in 2000, and trials were held in Vancouver, Toronto and Montr‚al in 2001 (see Nov. 2001 LGLN). It had been expected that all three cases would eventually reach the Supreme Court, which would then find a Charter violation, perhaps in 2005, and possibly give the federal government six months to two years to change the law. But equality has been achieved much more quickly than expected. On May 1, in _EGALE Canada Inc. v. Canada (Attorney General)_, 2003 BCCA 251, 13 B.C.L.R. (4th) 1, 2003 CarswellBC 1006, a three-judge panel of the British Columbia Court of Appeal granted a unanimous declaration that "the common law bar against same-sex marriage is of no force or effect because it violates rights ... guaranteed by s. 15 ... and does not constitute a reasonable and demonstrably justified limit on those rights ... within the meaning of s. 1," and reformulated the common law definition of marriage to mean "the lawful union of two persons to the exclusion of all others." However, the court suspended the declaration and reformulation until July 12, 2004, "solely to give the federal and provincial governments time to review and revise legislation to bring it into accord with this decision." [The July 12, 2004, date was selected to coincide with a date previously set by a lower Ontario court in a ruling issued last summer, whose appeal was pending when the B.C. court decision was announced. Editor] On June 10, in the Ontario case, now known as _Halpern v. Canada (Attorney General)_, 2003 CarswellOnt 2159, the Ontario Court of Appeal reached the same conclusion as the B.C. Court of Appeal, finding an unjustifiable violation of Section 15(1) in a single judgment "By the Court." But the Ontario Court unexpectedly and dramatically declined to suspend its remedy. Instead, it made the following order: "To remedy the infringement of these constitutional rights, we: (1) declare the existing common law definition of marriage to be invalid to the extent that it refers to 'one man and one woman'; (2) reformulate the common law definition of marriage as 'the voluntary union for life of two persons to the exclusion of all others'; (3) order the declaration of invalidity in (1) and the reformulated definition in (2) to have immediate effect; (4) order the Clerk of the City of Toronto to issue marriage licenses to the [applicant same-sex] Couples; and (5) order the Registrar General of the Province of Ontario to accept for registration the marriage certificates of Kevin Bourassa and Joe Varnell and of Elaine and Anne Vautour [who were married in a religious ceremony at the Metropolitan Community Church in Toronto on Jan. 14, 2001]." The Ontario Court began its Section 15(1) analysis by rejecting the federal Government's argument that "marriage, as an institution, does not produce a distinction between opposite-sex and same-sex couples. The word 'marriage' is a descriptor of a unique opposite-sex bond that is common across different times, cultures and religions as a virtually universal norm." The court responded: "If marriage were defined as 'a union between one man and one woman of the Protestant faith', surely the definition would be drawing a formal distinction between Protestants and all other persons. ... Similarly, if marriage were defined as 'a union between two white persons', there would be a distinction between white persons and all other racial groups. In this respect, an analogy can be made to the anti-miscegenation laws that were declared unconstitutional in _Loving v. Virginia_ [a U.S. Supreme Court opinion from the 1960s - Editor] ... [A]n argument that marriage is heterosexual because it 'just is [heterosexual]' amounts to circular reasoning. It sidesteps the entire s. 15(1) analysis. It is the opposite-sex component of marriage that is under scrutiny. The proper approach is to examine the impact of the opposite-sex requirement on same-sex couples to determine whether defining marriage as an opposite-sex institution is discriminatory ..." The court found that "the common law definition of marriage creates a formal distinction between opposite-sex couples and same-sex couples on the basis of their sexual orientation" and that the distinction is "discriminatory." Federal and provincial legislation equalizing the rights and obligations of unmarried different-sex and same-sex partners, after _M. v. H._, is not sufficient. "In many instances, benefits and obligations do not attach until the same-sex couple has been cohabiting for a specified period of time. Conversely, married couples have instant access to all benefits and obligations. Additionally, not all benefits and obligations have been extended to cohabiting couples [e.g., division of property upon relationship breakdown]. ... [Section] 15(1) guarantees more than equal access to economic benefits. ... In this case, same-sex couples are excluded from a fundamental societal institution marriage. The societal significance of marriage, and the corresponding [non- economic] benefits that are available only to married persons, cannot be overlooked. ... Exclusion perpetuates the view that same-sex relationships are less worthy of recognition than opposite-sex relationships. In doing so, it offends the dignity of persons in same-sex relationships." The Court then considered whether the "opposite-sex" common-law definition of marriage helps achieve "pressing and substantial objectives" under the Section 1 justification test: "What needs to be determined ... is whether there is a valid objective to maintaining marriage as an exclusively heterosexual institution. Stating that marriage is heterosexual because it always has been heterosexual is merely an explanation for the opposite-sex requirement of marriage; it is not an objective that is capable of justifying the infringement of a Charter guarantee. ... The first purpose [of marriage advanced by the federal Government, 'uniting the opposite sexes'], which results in favouring one form of relationship over another, suggests that uniting two persons of the same sex is of lesser importance. ... [A] purpose that demeans the dignity of same-sex couples is contrary to the values of a free and democratic society and cannot be considered to be pressing and substantial. A law cannot be justified on the very basis upon which it is being attacked ..." "The second purpose ... is encouraging the birth and raising of children. ... We fail to see how the encouragement of procreation and child-rearing is a pressing and substantial objective of maintaining marriage as an exclusively heterosexual institution. Heterosexual married couples will not stop having or raising children because same-sex couples are permitted to marry. Moreover, an increasing percentage of children are being born to and raised by same-sex couples. The [federal government] submits that the union of two persons of the opposite sex is the only union that can 'naturally' procreate. In terms of that biological reality, same-sex couples are different from opposite-sex couples. In our view, however, 'natural' procreation is not a sufficiently pressing and substantial objective to justify infringing the equality rights of same-sex couples. ... [S]ame-sex couples can have children by other means, such as adoption, surrogacy and donor insemination. A law that aims to encourage only 'natural' procreation ignores the fact that same-sex couples are capable of having children. Similarly, a law that restricts marriage to opposite-sex couples, on the basis that a fundamental purpose of marriage is the raising of children, suggests that same-sex couples are not equally capable of child-rearing. The [federal government] has put forward no evidence to support such a proposition. Neither is the [federal government] advocating such a view; rather, it takes the position that social science research is not capable of establishing the proposition one way or another. In the absence of cogent evidence, it is our view that the objective is based on a stereotypical assumption that is not acceptable in a free and democratic society that prides itself on promoting equality and respect for all persons." "The third purpose ... is companionship. ... Encouraging companionship between only persons of the opposite sex perpetuates the view that persons in same-sex relationships are not equally capable of providing companionship and forming lasting and loving relationships. Accordingly, it is our view that the [federal Government] has not demonstrated any pressing and substantial objective for excluding same-sex couples from the institution of marriage. ..." Even if the "procreation and childrearing" and "companionship" objectives were pressing and substantial, they are not "rationally connected to the opposite-sex requirement in the common law definition of marriage. ... It is not disputed that marriage has been a stabilizing and effective societal institution. The [applicant same-sex] Couples are not seeking to abolish the institution of marriage; they are seeking access to it. ... The law is both overinclusive and underinclusive. The ability to 'naturally' procreate and the willingness to raise children are not prerequisites of marriage for opposite-sex couples. Indeed, many opposite-sex couples that marry are unable to have children or choose not to do so. Simultaneously, the law is underinclusive because it excludes same-sex couples that have and raise children. ... Gay men and lesbians are as capable of providing companionship to their same-sex partners as persons in opposite-sex relationships." And even if the objectives were rationally connected to the opposite-sex requirement, they could be achieved by alternative means (opening up civil marriage to same-sex couples). The opposite-sex requirement therefore does not "minimally impair" the Section 15(1) rights of same-sex couples: "[T]he [federal government] submits that ... [c]hanging the definition of marriage to incorporate same-sex couples would profoundly change the very essence of a fundamental societal institution. [It] points to no-fault divorce as an example of how changing one of the essential features of marriage, its permanence, had the unintended result of destabilizing the institution with unexpectedly high divorce rates. This, it is said, has had a destabilizing effect on the family, with adverse effects on men, women and children. Tampering with another of the core features, its opposite-sex nature, may also have unexpected and unintended results. Therefore, a cautious approach is warranted. We reject [this] submission as speculative. The justification of a Charter infringement requires cogent evidence. In our view, same-sex couples and their children should be able to benefit from the same stabilizing institution as their opposite-sex counterparts. ... [A]llowing same-sex couples to choose their partners and to celebrate their unions is not an adequate substitute for legal recognition. This is not a case of the government balancing the interests of competing groups. Allowing same-sex couples to marry does not result in a corresponding deprivation to opposite-sex couples." The federal government asked the Ontario appeals court to suspend its declaration of invalidity for two years, as the lower court had done. The court declined to so do: "There is no evidence before this court that a declaration of invalidity without a period of suspension will pose any harm to the public, threaten the rule of law, or deny anyone the benefit of legal recognition of their marriage. ... [T]here was no evidence before us that the reformulated definition of marriage will require the volume of legislative reform that followed the release of the Supreme Court['s] ... decision in _M. v. H_. In our view, an immediate declaration will simply ensure that opposite-sex couples and same-sex couples immediately receive equal treatment in law in accordance with s. 15(1) ..." Because the judgment had immediate effect, and the federal government (perhaps taken by surprise) did not seek an immediate stay from the Supreme Court, one of the applicant same-sex couples, Michael Leshner and Michael Stark, obtained a marriage license from the City of Toronto and were married on the afternoon June 10. By June 13, Toronto City Hall had already issued 89 marriage licenses to same-sex couples. Ontario's Marriage Act has no residence or nationality requirements, which means that any same-sex couple from anywhere in the world could marry in Ontario. For the next week, it was unclear whether the federal government would appeal _Halpern_ and _EGALE_ to the Supreme Court, and what would happen to the marriages of the newlywed couples if the Supreme Court were to reverse the Ontario and B.C. Courts of Appeal. On June 17, the speculation ended when Prime Minister Jean Chretien made an historic statement: "We will not be appealing the recent decision[s] on the definition of marriage. Rather, we will be proposing legislation that will protect the right of churches and religious organizations to sanctify marriage as they define it. At the same time, we will ensure that our legislation includes and legally recognises the union of same sex couples. As soon as the legislation is drafted, it will be referred to the Supreme Court. After that, it will be put to a free vote in the House [of Commons of the federal Parliament]." The purpose of the reference will be to ensure that the exemption for religious organizations is constitutional, and that the legislation is binding on provincial governments. Canada's Constitution has been interpreted as granting jurisdiction over "capacity to marry" and "divorce" to the federal Parliament, and jurisdiction over "solemnization of marriage" (including the issuance of marriage licenses) and other aspects of family law to provincial legislatures. (Although the federal government has declined to appeal _Halpern_, the Ontario Conference of Catholic Bishops, together with the Evangelical Fellowship of Canada, the Islamic Society of North America, and the Catholic Civil Rights League, have asked the Supreme Court for leave to do so.) The planned federal legislation is likely to be approved by the Supreme Court, and passed by the federal Parliament, by June 2004. It will extend the _Halpern_ decision from Ontario to the other nine provinces and three territories, unless courts in the other provinces and territories voluntarily adopt the reasoning and remedy in _Halpern_, or the governments of other provinces and territories voluntarily comply with _Halpern_ (as federal Justice Minister Martin Cauchon has urged them to do; the government of Alberta has made it clear that it will not do so). On July 8, the B.C. Court of Appeal opened up civil marriage to same-sex couples in B.C. by lifting the suspension on its May 1 declaration and reformulation after applications by the same-sex couples with the consent of the federal government. "It is reasonable to assume ... that any consequential amendments to the law which may be required as a result of this Court's decision do not require the suspension of remedy which this Court originally imposed. It is also apparent that any further delay in implementing the remedies will result in an unequal application of the law as between Ontario and British Columbia ... In these circumstances, the Court is satisfied that it is appropriate to amend the order in these appeals to lift the suspension of remedies, with the result that the declaratory relief and the reformulation of the common law definition of marriage as 'the lawful union of two persons to the exclusion of all others' will take immediate effect." Antony Porcino and Tom Graff were married in Vancouver within minutes of the decision. _Robert Wintemute_ [Editorial Note: As there is no residency requirement to obtain a marriage license in Ontario, same-sex couples from the United States began heading north to marry as soon as the announcement was made that the Toronto City Clerk's office would comply with the court ruling and issues licenses. Gay-friendly religious figures and judges stood ready to conduct ceremonies with very little advance notice. It was uncertain whether a same-sex marriage from Canada would be recognized in the United States for any purpose. One potential drawback of Americans marrying in Canada is that there is a residency requirement in order to file a divorce action. Gay rights organizations in the U.S. cautioned those heading north to marry that if/when they encountered difficulties in getting their marriages respected in the U.S., they should consult with the lesbian/gay legal rights organizations prior to filing lawsuits.] Supreme Court Remains Sharply Split on Affirmative Action in University Admissions The U.S. Supreme Court issued two decisions on June 23 dealing with the admissions process at the University of Michigan. By a vote of 5-4, the Court ruled in _Grutter v.Bollinger_, 123 S.Ct. 2325, 2003 WL 21433492, that the University's Law School could take race into account in making admissions decisions, in pursuit of a "compelling interest" to maintain a racially diverse student body because of the academic benefits that the school asserted would flow from such diversity. Key to the Court's decision was a finding that the Law School takes race into account as only one among many subjective factors in deciding among students whose LSAT and undergraduate grades suggest they are capable of succeeding in law school, and that the First Amendment mandates that the Court grant "deference" to the law school's judgment that diversity is desirable for pedagogical reasons. By contrast, six members of the Court voted to strike down the University's affirmative action program for undergraduate admissions in _Gratz v. Bollinger_, 123 S.Ct. 2411, 2003 WL 21434002. The undergraduate admissions office at Michigan uses a point system to evaluate candidates, under which membership in an "underrepresented minority group" is worth 20 points on a scale of 150 for any applicant whose high school grades and SAT scores suggests they are qualified. In practical effect, this means that virtually every applicant from an "underrepresented minority group" (the University does not count Asian-Americans as an underrepresented minority) is offered admission, without any further inquiry into other factors in all but a handful of cases, if their test scores exceed a minimal threshold. As a matter of vote-counting, the different outcomes turned heavily on the judgment of Justice Sandra Day O'Connor, so often the swing voter on this Court. Justice O'Connor wrote the opinion for the majority in _Grutter_, and joined the opinion by Chief Justice William Rehnquist in _Gratz_. The vote of Justice Stephen Breyer was also determinative, as he joined O'Connor's opinion in _Grutter_ but concurred in the result in _Gratz_ without signing on to Rehnquist's opinion. The only justice who refused to take a position on the merits of the _Gratz_ case was Justice John Paul Stevens, who argued that the plaintiffs in that case lacked standing to bring the lawsuit, having enrolled at other colleges after being rejected by Michigan in the mid-1990's and long since graduated. Justice David Souter joined Stevens in this procedural objection, but proceeded in a separate opinion and in concert with Justice Ruth Bader Ginsburg to argue that on the merits the undergraduate admissions program should survive judicial review. Justice Ginsburg argued that the Court has erred in using "strict scrutiny" to evaluate government programs that are intended to be "inclusive" of minorities, since the whole idea behind "strict scrutiny" is to put a major burden on the government to justify programs that are "exclusionary." Justices Antonin Scalia and Clarence Thomas, consistent with their past positions, argued in dissent in _ Section 7613(b) states: "The donor of semen provided . . . for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived." The court stated that this section is inapplicable, because Robert donated his sperm for the exclusive use of his wife and himself, and not for "a woman other than the donor's wife." The court held that Susan's argument supporting single parenthood would best be directed toward the legislature. And since Daniel's right to a stable home is not at issue, Susan's argument should be reserved for any future effort by Robert and Denise to obtain custody. Denise argued on appeal that she has standing as an "interested person" within the meaning of Family Code section 7650, which permits "[a]ny interested person [to] bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of this part [the Uniform Parentage Act] applicable to the father and child relationship apply." Even though this provision did not restrict the standing of alleged mothers, California appellate courts have refused to recognize biologically unrelated women as "interested parties." The court cites to a 1997 case where a lesbian failed to obtain recognition of her parental status to her former partner's daughter, _West v. Superior Court_, 59 Cal.App.4th 302, 306 (3rd Dist. 1997). In addition, the court cited to a case where they held that section 7650 "has no application where it is undisputed [that the gestational and genetic mother] is the natural mother of the child." _Curiale v. Reagan_, 222 Cal.App.3d 1597, 1600 (3rd Dist. 1990). In a case similar case to this, where a husband and wife suspected unauthorized use of their genetic material for another couple, who had used the same clinic and thus became the parents, the court held that the plaintiff wife did not have standing and that ". . . an unrelated person who is not a genetic parent is not an 'interested person'" under sec. 7650. _Prato-Morrison v. Doe_, 103 Cal.App.4th 222, 229 (2nd Dist. 2002). Even though Denise tried to dispute the holding of _Prato-Morrison_, the court held that Susan is the undisputed mother, because she gave birth to Daniel. Denise's attempt to assert that she was the intended mother failed, since she has neither a gestational nor a genetic relationship to Daniel. The court affirmed that Robert is Daniel's father and Susan is Daniel's mother. The issues of custody and visitation were not before the court at this stage of things. However, so far Susan is willing to allow informal social contact between the families. _Audrey E. Weinberger_ 2nd Circuit Upholds Connecticut's Exclusion of Scouts from Charitable Campaign In an opinion by Circuit Judge Guido Calabresi, a unanimous three-judge panel of the U.S. Court of Appeals for the 2nd Circuit upheld the state of Connecticut's decision to exclude the Boy Scouts of America and its local Connecticut Rivers Council from participating in the annual charitable fund-raising campaign that the state conducts for its employees. _Boy Scouts of America v. Wyman_, 2003 WL 21545096 (U.S.Ct.App., 2nd Cir., July 9, 2003). After the New Jersey Supreme Court ruled in 1999 that the Boy Scouts of America had violated New Jersey's human rights law by dismissing James Dale, an openly-gay man, as an assistant Scout leader, the head of Connecticut's civil rights agency contacted the committee that runs the Connecticut State Employee Campaign, an annual event by which state employees in Connecticut can authorize that charitable donations be withheld from their paychecks and contributed to any of a number of charities listed in the campaign booklet. Up to that time the Scouts had always been listed in the booklet. The Committee in turned contacted the Connecticut Rivers Council to determine whether they followed the same discriminatory policies that were followed in New Jersey and, after determining that the Connecticut Scouts would not allow gay adults to participate as members or leaders, the Committee asked the state's civil rights agency, called the Commission on Human Rights & Opportunities (CHRO), whether the Scouts' policies violated Connecticut law, and whether the campaign would be violating the law if it allowed the Scouts to participate. The CHRO advised the committee that allowing the Scouts to participate would violate the state's Gay Rights Law, which prohibits the state from discriminating in its employment policies or in its provision of services on the basis of sexual orientation. Within days after being notified in May 2000 that they were being excluded from the upcoming fall campaign, the Scouts sued in federal court, claiming that the exclusion violated their First Amendment rights and Connecticut laws (including a provision of the gay rights law itself, which bound the state not to discriminate against heterosexuals). Just a few weeks later, the U.S. Supreme Court issued its decision in _Boy Scouts of America v. Dale_, 530 U.S. 640 (2000), holding that the Scouts had a First Amendment right of expressive association to refuse to have a gay activist (as James Dale was identified in the Court's opinion) as an assistant Scoutmaster, on the theory that this would interfere with the Scouts' ability to convey their message of opposition to homosexuality. The Connecticut officials analyzed their position anew in reaction to the Dale decision, but concluded that it did not change their own obligations under state law. They reasoned that the Scouts were free to discriminate on the basis of sexual orientation in picking adult leaders and employees, but that this did not obligate the state to allow them to participate in the charitable campaign, and that their exclusion was mandated by the state law. U.S. District Judge Warren Eginton agreed with the state, 213 F. Supp. 2d 159 (D. Conn. 2002), and granted summary judgment against the Scouts, who appealed. Judge Calabresi devoted a substantial part of his opinion to reviewing the arguments about how narrowly or broadly the Dale decision should be construed. It is possible to read it as applying only to the issue of adult Scout leaders, and not in general to all of the Scout's membership and employment policies, in which case much of the Scouts' discriminatory practice would not necessarily be protected by the First Amendment, or to read it broadly as giving the Scouts complete discretion to exclude gays from all aspects of its operations. Court decisions can be found supporting both views. But Calabresi found it unnecessary for the court to take sides between a broad or narrow construction of Dale, because he found that the Scouts' exclusion from the Connecticut program was, at least in part, because of their constitutionally-protected policy of refusing to have openly-gay adults in leadership positions, so an analysis of their First Amendment claim was required. Thus, the Scouts could satisfy the first step of the inquiry whether they were excluded from participation in a government program due to their constitutionally-protected activity. But Calabresi concluded that they fell down on the next step, which was determining whether this exclusion itself violated the First Amendment. Calabresi found that the burden imposed on the Scouts was incidental here, not direct, in that Connecticut was not trying to order the Scouts to hire gay leaders. Rather, it was excluding them from a non-public forum (as previous cases had determined that these kinds of charitable campaigns are not a "public forum"), and was not doing so for the purpose of discriminating against a particular viewpoint. Rather, Calabresi found, Connecticut was concerned with the act of discrimination in employment on the basis of sexual orientation, not with censoring particular viewpoints. Connecticut was not excluding the Scouts in order to muzzle them from expressing their viewpoint but, rather, in order to avoid facilitating their continued discrimination against Connecticut residents on the basis of their sexual orientation. While admitting that this had the effect of disfavoring a particular viewpoint, Calabresi found that such was a necessary side-effect of any law prohibiting discrimination, but that the law's purpose was to prevent discrimination, and thus it could be considered, for purposes of this analysis, to be a view-point neutral law. (And, indeed, the law as written prohibits discrimination against all persons on the basis of sexual orientation, thus protecting heterosexuals, bisexuals and even those of indeterminate sexual orientation from discrimination on that basis.) The Scouts tried to argue that Connecticut was engaging in viewpoint discrimination because it allowed a variety of charities that are gay-identified to participate in the campaign, including P- FLAG and Lambda Legal, both of which are advocacy organizations. But Calabresi found that their inclusion was entirely consistent, since there was no evidence that they discriminated in their membership policies based on sexual orientation or any other prohibited ground. He also noted that the CHRO was very careful in responding to the committee's inquiries not to take a position on the question whether the Scouts were violating the gay rights law by excluding openly gay boys from membership, but rather focused its response solely on the Scout's adult membership and leadership policies. Consequently, the court could avoid taking a position on whether inclusion of the Girl Scouts in the charitable campaign raised a problem. Finally, Calabresi rejected the argument that excluding the Scouts violated the gay rights law itself. The Scouts had pointed to a provision by which the legislature indicated that the law should not be construed to constitute state endorsement or support for homosexuality, and argued that excluding the Scouts from the charitable campaign constituted a pro-gay statement by the campaign on behalf of the state government. Once again, Calabresi insisted, the government was not taking sides on a political issue here, but merely enforcing its statutory requirement of non- discrimination. Although the litigation was fought out between the Scouts and the state government, a group of gay rights organizations combined under the banner of Gay and Lesbian Advocates and Defenders, the Boston-based New England public interest law firm, to file a friend-of-the-court brief in support of the state's position. A.S.L. Judge Posner (7th Circuit) Reexamines Sex Stereotyping in Title VII Cases The June 2002 _Law Notes_ reported the summary judgement granted to the employer on the Title VII same-sex hostile environment harassment claim in _Hamm v. Weyauwega Milk Products, Inc._, 199 F.Supp.2d 878 (E.D. WI. 2002). The appellate opinion, affirming based on work performance conflicts and speculation about Hamm's sexual orientation, includes law and economics theorist Judge Richard Posner's concurrence criticizing exisiting "sex stereotyping" jurisprudence, and proposing a "simpler and more intuitive" approach "that would reduce future litigation." Hamm v. Weyauwega Milk Products, Inc., 2003 WL 21362198 (7th Cir., Jun.13, 2003)). Quoting Judge Posner nearly in the entirety: "The case law as it has evolved holds . . . that although Title VII does not protect homosexuals from discrimination on the basis of their sexual orientation, it protects heterosexuals who are victims of "sex stereotyping" or "gender stereotyping." "The origin of this curious distinction, which would be very difficult to explain to a lay person (an indication, often and I think here, that the law is indeed awry), is the Supreme Court's decision in _Price Waterhouse v. Hopkins_, 490 U.S. 228 (1989). Part of the evidence that the plaintiff in that case had been denied promotion because she was a woman was that her male superiors hadn't liked her failure to conform to their expectations regarding feminine dress and deportment. That was indeed a reason to suspect that the firm discriminated against women. But there is a difference that subsequent cases have ignored between, on the one hand, using evidence of the plaintiff's failure to wear nail polish (or, if the plaintiff is a man, his using nail polish) to show that her sex played a role in the adverse employment action of which she complains, and, on the other hand, creating a subtype of sexual discrimination called "sex stereotyping," as if there were a federally protected right for male workers to wear nail polish and dresses and speak in falsetto and mince about in high heels, or for female ditchdiggers to strip to the waist in hot weather. If a court of appeals requires lawyers presenting oral argument to wear conservative business dress, should a male lawyer have a legal right to argue in drag provided that the court does not believe that he is a homosexual, against whom it is free to discriminate? That seems to me a very strange extension of the Hopkins case. "The 'logic' of the extension is that if an employer disapproves of conduct by a man that it would not disapprove of in a woman, or conduct by a woman that it would not disapprove of in a man, the disapproval is 'because of' sex. What is true, as I have said, is that this asymmetry of response may be evidence of sex discrimination; but to equate it to sex discrimination is a mistake. If an employer refuses to hire unfeminine women, its refusal bears more heavily on women than men, and is therefore discriminatory. That was the Hopkins case. But if, as in this case, an employer whom no woman wants to work for (at least in the plaintiff's job classification) discriminates against effeminate men, there is no discrimination against men, just against a subclass of men. They are discriminated against not because they are men, but because they are effeminate. "If this analysis is rejected, the absurd conclusion follows that the law protects effeminate men from employment discrimination, but only if they are (or are believed to be) heterosexuals. To impute such a distinction to the authors of Title VII is to indulge in a most extravagant legal fiction. It is also to saddle the courts with the making of distinctions that are beyond the practical capacity of the litigation process. Hostility to effeminate men and to homosexual men, or to masculine women and to lesbians, will often be indistinguishable as a practical matter, especially the former. Effeminate men often are disliked by other men because they are suspected of being homosexual (though the opposite is also true effeminate homosexual men may be disliked by heterosexual men because they are effeminate rather than because they are homosexual), while mannish women are disliked by some men because they are suspected of being lesbians and by other men merely because they are not attractive to those men; a further complication is that men are more hostile to male homosexuality than they are to lesbianism. To suppose courts capable of disentangling the motives for disliking the non-stereotypical man or woman is a fantasy. "Inevitably a case such as this impels the employer to try to prove that the plaintiff is a homosexual (the employer's lawyer actually said at the argument that a plaintiff's homosexuality would be a complete defense to a suit of this kind) and the plaintiff to prove that he is a heterosexual, thus turning a Title VII case into an inquiry into individuals' sexual preferences to what end connected with the policy of the statute I cannot begin to fathom. An unattractive byproduct of the inquiry is a gratuitous disparagement of homosexuals as when Hamm in his brief, remarking on how 'his harassers tormented him with the ultimate attack on his masculinity, namely, barraging him with every vulgar, slang phase for a homosexual,' concludes: 'For a heterosexual male, such slurs are tantamount to verbal castration' (emphasis mine) as if they were unwounding when directed at a homosexual male. "'Sex stereotyping' should not be regarded as a form of sex discrimination, though it will sometimes, as in the Hopkins case, be evidence of sex discrimination. In most cases emphatically so in a case such as this in which, so far as appears, there are no employees of the other sex in the relevant job classification the 'discrimination' that results from such stereotyping is discrimination among members of the same sex. The distinction can be illustrated by a pair of examples. If the producer of Antony and Cleopatra refuses to cast an effeminate man as Antony or a mannish woman as Cleopatra, he is not discriminating against men in the first case and women in the second, although he is catering to the audience's sex stereotypes. But if a fire department refused to hire mannish women to be firefighters, this would be evidence that it was discriminating against women, because mannish women are more likely than stereotypically feminine women to meet the demanding physical criteria for a firefighter. _Mark Major_ Civil Litigation Notes _Federal - 6th Circuit_ A panel of the U.S. Court of Appeals for the 6th Circuit affirmed a deportation order that had been approved by the Board of Immigration Appeals, rejecting a plea from a gay Rumanian national who claims he would suffer persecution if forced to return to his country. _Iancu v. Immigration and Naturalization Service_, 2003 WL 21421639 (June 17, 2003). Iancu overstayed his visa and was the subject of a January 1996 deportation order by the INS. He then filed for asylum, but evidently was not particularly well-brief on what he would have to allege and prove, since the court found that his story changed during the course of the hearing process and ultimately could not meet the relatively stiff burden of showing a reasonable fear of persecution. Iancu did allege that he had been stopped by law enforcement personnel in Rumania and "questioned" about his homosexuality, but the court found that this is not enough. "Even if it is true that he was detained and questioned regarding his homosexuality, 'persecution' requires 'more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty,'" wrote the court, per curiam, quoting from _Mikhailevitch v. INS_, 146 F.3d 384, 390 (6th Cir. 1998). The court found that the deportation decision was supported by substantial evidence in the record. A.S.L. _Federal - Hawaii_ The _Honolulu Star-Bulletin_ reported on July 4 that U.S. District Judge Helen Gillmor denied a request for injunctive relief by Hawaii P-FLAG, a gay community center, and a gay-trans Family Network organization, all of whom wished to march in a Kid's Day Parade in Honolulu that was being sponsored jointly by the city and the Hawaii Chistrian Coalition. Judge Gillmor found that the Coalition was basically paying for the event, and the city's role was mainly to allow it to happen and provide police protection. As such, she found the parade to be a private event, whose organizer could decide whom to include and whom to exclude. _Honolulu Star-Bulletin_, July 4. A.S.L. _Federal - Indiana_ U.S. District Judge David F. Hamilton has ruled in _Sweet v. Mulberry Lutheran Home_, 2003 WL 21525058 (S.D. Ind., June 17, 2003), that, notwithstanding the Supreme Court's ruling in _Price Waterhouse v. Hopkins_, 490 U.S. 228 (1989), and subsequent cases in other parts of the country suggesting that under _Hopkins_ discrimination against transgendered persons might be forbidden by the sex discrimination ban in Title VII of the Civil Rights Act of 1964, nonetheless in the 7th Circuit the binding precedent remains _Ulane v. Eastern Airlines, Inc._, 742 F.2d 1081 (7th Cir. 1984), which held that an employer does not violate Title VII by firing an employee for having a sex change operation. In this case, John Sweet, who represented himself pro se, claimed that he was discharged as a licensed practical nurse when his employer learned that he was planning a sex-change operation. The employer denied this, setting forth three incidents of inappropriate treatment of patients by Sweet that it claimed were the basis for its decision. Judge Hamilton found that even if Sweet's charges did qualify as sex discrimination, he would still suffer summary judgment against him because he had failed to present evidence undermining the employer's contention that he was properly terminated for poor performance. Sweet also claimed retaliation, based on the employer's action in filing a disciplinary complaint against him with state licensing authorities based on the three incidents. Sweet claimed that this complaint was filed in retaliation for his filing of a discrimination charge with the EEOC. The employer credibly showed that the management official who filed the complaint had no knowledge of Sweet's EEOC charge at the time. A.S.L. _Federal - Indiana_ In _Doe v. City of Lafayette, Indiana_, 2003 WL 21480355 (June 27, 2003), a panel of the U.S. Court of Appeals for the 7th Circuit voted 2-1 that the city had violated the First Amendment rights of the John Doe plaintiff by banning him from all city parks at any time under threat of arrest for trespass. Doe, a convicted child molester who had satisfactorily completed his period of parole after release from prison, was driving home from work one day in January 2000 when he began to have sexual fantasies about children, so he drove to the park and spent some time watching teenage boys playball, fantasizing about having sex with them. After watching for a while, Doe got back in his car and left, but he was troubled by this experience and told his psychologist and his self-help group about it. His former probation officer then received an anonymous call informing him of what Doe had done, the probation officer contracted the police department, and the Police Chief discussed the matter with the City Attorney, as a result of which the Parks Department issued its order to Doe to stay out of the parks. Doe sued to vacate the order, and the trial judge granted summary judgment to the city. Reversing in an opinion by Circuit Judge Williams, the panel found that one has a First Amendment right to think perverted thoughts without suffering consequences, and that the law can only punish action. The court analogized the case to _Stanley v. Georgia_, where the Supreme Court upheld a right to private possession of obscene matter, and _Robinson v. California_, where the Supreme Court found an 8th Amendment violation in a California statute criminalizing the status of being addicted to drugs, and said that just as a convicted bank robber could not be barred once having passed probation from going into banks, a convicted child molester similarly could not be barred from using public parks. One can be a pedophile without suffering criminal penalty, so long as one takes no action. Judge Ripple vehemently dissented, calling the ban a reasonable effort by the city to protect its children in light of Doe's past history and propensities. A.S.L. _Federal - Oregon_ The Equal Employment Opportunity Commission (EEOC) announced the settlement of a same-sex harassment lawsuit that had been filed on behalf of five male employees against RSG Forest Products, Inc., of Oregon, in the U.S. District Court. _EEOC v. RSG Forest Products, Inc._, No. 02-CV-1334-JE (D. Ore., settlement approved, May 27, 2003). Under the terms of the settlement, each of the five employees will receive a payment from the company. The supervisor who had been accused of sexually harassing the complainants through "physical actions, crude sexual comments, and related activities" has been terminated. The EEOC filed suit after attempts at settlement failed. BNA Daily Labor Report No. 118, 6/19/2003, p. A-13. A.S.L. _Federal - Tennessee_ Having made the mistake of filing a same-sex harassment claim in federal court, Lonnie King reaped the consequences of an unsuccessful appeal from a summary judgment. _King v. Super Service, Inc._, 2003 WL 21500008 (U.S.Ct.App., 6th Cir., June 26, 2003). The trial court found that King was harassed by two co-workers because they perceived him as gay. The court found no evidence that the sexually-charged statements that the co- workers made provided any evidence of sexual desire on their part, and there was no evidence of generalized hostility against men in the workplace. This court was disinclined to follow those circuits who have embraced a gender non-conformity theory of Title VII harassment liablity. A.S.L. _Federal - Utah_ Yet another unsuccessful same-sex harassment claim under Title VII, this time involving a female plaintiff, was decided in _Dick v. Phone Directories Company, Inc._, 2003 WL 21295928 (D. Utah, June 4, 2003). As is frequently the case, the court found that the raucous and vulgar workplace conduct described by the plaintiff was revolting, but did not violate the statute. This was apparently a workplace in which all the employees were women, so the plaintiff was unable to allege credibly that she was harassed because of generalized hostility to having women in the workplace. Rather, she claimed that she was the target of sexually- charged inuendo and unwanted attention. She was unable to show that any of the alleged harassers were lesbians or were going after her due to sexual interests. The court found that the conduct alleged was not actionable under Title VII, because there was no proof that the plaintiff was targeted because of her sex. A.S.L. _Arizona - Tucson_ Endorsing a recommendation from the city's Commission on Gay, Lesbian, Bisexual and Transgender Issues, the Tucson City Council voted unanimously on June 30 to authorize city officials to proceed with plans to set up a domestic partner registry. Still to be determined which city department will administer the program and what fees will be established for registration. The vote was seen as a strong signal to the city administration to resolve these issues quickly and come back to the council with a proposed ordinance. Registered partners would obtain the right to visit partners in hospitals and to get discounts under various city programs, and the registry could also be used by private businesses as a way of establishing eligibility for domestic partnership benefits. _Tucson Citizen_, July 1. A.S.L. _New York_ On June 2, the New York Appellate Division, 2nd Department, rejected a claim that tenant succession regulations under which same-sex domestic partners are protected from eviction were invalidly promulgated. _Gioia v. Lynch_, 760 N.Y.S.2d 351. In a terse opinion of just a few sentences, the court stated that the Division of Housing and Community Renewal (DHCR) had "substantially complied" with the State Administrative Procedure Act in promulgating the regulations, whose summary description when they were published for comment was "reasonably precise." Lambda Legal Defense Fund and Westchester County's Lesbian and Gay Community Services Center, known as The Loft, filed an amicus brief in the case. A.S.L. _North Carolina_ The North Carolina Supreme Court has affirmed a decision holding that counties and municipalities in that state do not have authority to adopt employment discrimination laws that are broader than existing state laws. _Williams v. Blue Cross Blue Shield of North Carolina_, 581 S.E.2d 415 (June 13, 2003). The ruling is based on a provision of the state constitution which reserves to the state legislature sole law-making authority on employment policies. The plaintiff had filed an age discrimination charge with a county human relations commission that had been established after the state legislature approved a measure allowing the county to pass its own human rights ordinance; the employer sought an injunction against the proceeding on state constitutional grounds, and the court agreed that the legislature could not authorize a county to set up a human relations commission. So much for attempts to pass sexual orientation and gender identity discrimination measures in North Carolina below the state level. This ruling means that such measures adopted in Ashville and Raleigh are unenforceable, at least with respect to employment discrimination. A.S.L. Criminal Litigation Notes _Federal New York_ U.S. Dist. Judge Lewis Kaplan (S.D.N.Y.) rejected a demand by criminal defendant Russell A. Harding, the politically-connected former president of the New York City Housing Development Corporation (a Giuliani Administrative patronage appointee whose father was head of the state Liberal Party, a Giuliani ally), that prospective jurors for his trial on charges of possessing child pornography be required to complete a questionnaire eliciting their attitudes concerning homosexuality and child pornography. Kaplan acknowledged that "some of the issues likely to arise in this case may be regarded as sensitive by some prospective jurors," but that Harding had "failed to demonstrate that use of a _written_ questionnaire is necessary or preferable to a proper _voir dire_ conducted by the Court." Harding's apparent concern was that prospective jurors questioned about these subjects in open court might not give "honest and frank responses" to questions about their ability to be "fair and impartial." Judge Kaplan indicated that if need be he could exclude the public from the questioning concerning these issues, and denied Harding's request for use of a questionnaire. _United States of America v. Harding_, 2003 WL 21518835 (July 7, 2003). A.S.L. _California_ The California 2nd District Court of Appeal upheld the standard pattern jury instructions of hate crimes in _People v. Verdugo_, 2003 WL 21495158 (June 30, 2003). Sergio Verdugo was sentenced to life in prison without parole after a jury found him guilty of first degree murder, committed in the commission of robbery and burglary involving use of a deadly weapon, and first degree robbery, intentionally committed because of the victim's sexual orientation. Verdugo had claimed that the regular jury instruction explaining the hate crime element of the case was too ambiguous and should have been further clarified by the court. The charge stated that the hate crime motivation element is met if the "bias motivation" is "a cause in fact of the murder, whether or not other causes also exist." The trial judge also gave extra guidance to the jury, telling them that the allegation was that "the defendant intentionally committed said offenses because of the victim's sexual orientation or because of the defendant's perception of the victim's sexual orientation. . . If you find the defendant guilty of Count 2 or 3, you must determine whether the defendant intentionally committed said offense because of the victim's sexual orientation, or because of the defendant's perception of the victim's sexual orientation." The appellate court rejected the contention that the judge should have further explained to the jury what "because of" means. Wrote Presiding Judge Spencer for the appeals court, "The California Supreme Court has observed, in another, similar context, that the phrase 'because of,' as employed in these statutes, is a term of common usage that gives a person of ordinary intelligence a reasonable opportunity to ascertain what the statutes prohibit." A.S.L. _Ohio_ A gay sex-date set on a chat-line turned bloody, leading to a conviction for felonious assault and a seven year prison term for Richard Koballa, upheld by the 8th District Court of Appeals of Ohio in _State of Ohio v. Koballa_, 2003-Ohio-3535, 2003 WL 21513041 (July 3, 2003) (not reported in N.E.2d). The victim, Michael Zinicola, and David Carp met through a gay sex chat-line, and set up a date to meet after several telephone conversations. Carp brought along his friend, Richard Koballa. Accounts differ as to what happened when they got to Zinicola's house, but there is agreement that Koballa slashed Zinicola's neck with a razor blade. Koballa claims that he slashed Zinicola after Zinicola, on his knees, grabbed Koballa's arm and testicles while demanding to engage in oral sex. Zinicola testified that the date was set up to talk about sex and masturbate, and that Koballa attacked him without provocation. A jury convicted Koballa of felonious assault and he was sentenced to 7 years. The appellate court rejected Koballa's arguments of self-defense and that the jury should have been charged on the lesser offense of aggravated assault (which would require proof of sufficient provocation to justify the nature of the attack), and also upheld the trial court's decision to exclude from evidence gay pornography found by police in Zinicola's apartment, agreeing with the trial court that it was non-probative and potentially prejudicial. A.S.L. _Texas_ Calvin Burdine, who was convicted of murder and sentenced to death after a trial during which his court-appointed attorney slept through crucial testimony, has recently agreed to plead guilty in exchange for a life sentence. Burdine's conviction had been vacated by the U.S. Court of Appeals for the 5th Circuit, after having been upheld repeatedly by the death-obsessed Texas appellate criminal court system. The Court of Appeals had concluded that a defendant is not receiving effective assistance of counsel when counsel is asleep, a point that seems to have eluded the state appellate bench. (Maybe they thought it made no difference in this case because everybody knew that Burdine committed the murder, and the main issues in the case had to do with the degree of culpability and potential sentence, so somnolent counsel was probably not outcome-determinative.) _Burdine v. Johnson_, 262 F.3d 336 (5th Cir., en banc, 2001), cert. denied, 122 S.Ct.2347 (2002); plea bargain reported in _Ft. Worth Star-Telegram_, June 20, 2003. A.S.L. U.S. Legislative Notes _Federal_ The Bush Administration called on Congress to grant "faith-based charities" that receive federal financial assistance a broad exemption from state and local antidiscrimination laws as well as federal laws. Although federal law does not prohibit anti-gay discrimination, more than a dozen states and numerous counties and cities do prohibit such discrimination, and it was claimed that some religious charities were refraining from taking public funding for fear that they would be subject to such laws in their hiring practices. The Administration's call on June 24 for Congressional action was seen by some as pandering to the Christian Evangelical groups that have been calling for increased government funding for their social services programs, but who don't want to have to defend discrimination lawsuits. _Washington Post_, June 25. _Federal_ As Senator Bill Frist (Rep. - Tennessee), the majority leader, was calling for passage of a constitutional amendment to ban same-sex marriage in the U.S. (and apparently to overturn state laws authorizing civil unions and domestic partnership benefits as well), and Senator Rick Santorum (Rep. - Pennsylvania) was grousing about the Supreme Court's decision in _Lawrence v. Texas_, Senator Mark Dayton (Dem. - Minnesota) was introducing a bill to authorize domestic partnership benefits for gay federal employees. The measure has been introduced in each session of the House since 1997 by Rep. Barney Frank, but this is the first time Frank has found a Senate sponsor to introduce a counterpart bill. According to a July 5 story in the _St. Paul Pioneer Press_, Dayton has five co-sponsors for the bill: Joseph Lieberman (Dem. - Connecticut), John Kerry (Dem. - Massachusetts), Hillary Clinton (Dem. - New York), Patty Murray (Dem. - Washington), and Daniel Inouye (Dem. - Hawaii). So where are the Californians on this? And where is Chuck Schumer? _Arizona_ On June 21, Governor Janet Napolitano, a Democrat, issued an executive order prohibiting employment discrimination on the basis of sexual orientation by state agencies, and authorizing disciplinary action for any state employees who engage in "sexual harassment or other harassment based on sexual orientation." The order does not cover employees of the state legislative or judicial branches of employees of state-sponsored colleges or universities, which in Arizona are not within the jurisdiction of the governor for personnel matters. The state's gay rights organization welcomed the order but criticized it for omitting reference to gender identity or expression, although arguments can be made that existing policies could be interpreted to cover this category as well. Although the order covers discrimination in compensation, it was not intended to extend domestic partnership benefits to state employees. _Arizona Republic_, June 22; BNA _Daily Labor Report_ No. 125 (6/30/2003), at A-5. _California Statewide_ Three bills that would substantially broaden domestic partnership rights and expand protection to transgendered persons under existing legislation, have all passed the state Assembly and the Judiciary Committee of the state Senate. Passage in the Senate was seen as likely, but the one question mark was the Governor. Gov. Davis is now the target of a recall petition campaign, and he has been warned by rights-wing groups in California that they will mount a major anti-gay campaign against the governor if he signs these bills. No way of predicting which way Davis may jump. _Newsday_, July 7. _California San Francisco & Statewide_ San Francisco City Assessor Mabel Teng has announced a policy change in the City Assessor's office, under which property transfers between same-sex partners will henceforth be exempt from the policy of change-in-ownership tax reassessment. This is particularly important on the death of a person, since passage of title of property in such circumstances to an "unrelated" person would normally result in reassessment of the property and a substantial increase in property taxes. The new policy will give domestic partners the same rights as spouses to avoid such reassessments. Teng stated that she considered this a just and fair interpretation of California tax laws. _San Francisco Chronicle_, June 27. Teng's announcement followed on a similar action in the city of Alameda, where the Council voted 3-2 to exempt legally registered domestic partners from the property transfer tax. These events presaged a vote by the equivalent state-wide body, the State Board of Equalization, which voted on July 8 to change the rules that would govern property tax assessment upon the death of a domestic partner. The Chair of the Board, openly-lesbian former state legislator Carol Migden, was the chief proponent of the meausre, which carried on a 3-2 party-line vote. Changes to Rule 462.040 and 462.240 will guide county assessors in determining whether a co-owner who dies should be considered a domestic partner, thus immunizing the property from the usual reassessment upon passage of title to the surviving partner. _Oakland Tribune_, June 5; _Equality California_, July 9 Press Release; _San Francisco Chronicle_, July 10. _Delaware_ The Delaware House passed H.B. 99 by one vote on June 30. The measure next goes to the state Senate, where it was stalled in committee after being passed by the House during the previous session. The measure forbids discrimination in employment, housing, public works contracting, and public accommodations on the basis of actual or perceived sexual orientation. It has the very vocal support of Governor Ruth Ann Minner, who issued an executive order upon taking office last year banning sexual orientation discrimination in the state government. Chances for passage in the Senate may crucially depend upon which committee is assigned jurisdiction. The bill has bipartisan sponsorship and support. BNA _Daily Labor Report_ No. 128, 7/3/03; _News Journal_, June 29. _District of Columbia_ The _Washington Blade_ reported on July 4 that a new District of Columbia law took effect on June 21, authorizing domestic partners to make medical decisions on behalf of their partners. The Health-Care Decisions Act of 2003 was described by local gay activists as a "modest step" towards extending "full civil equality to same-sex relationships." The law requires hospitals in the district to follow the wishes of a domestic partner or "close friend" of a person whose medical condition does not make it possible for her to make her own decisions, but only becomes operational if the incapacitated person did not execute a durable power of attorney. Domestic partners must be registered to qualify as a "domestic partner" for this purpose, but presumably unregistered partners might qualify as a close friend," which is defined in the law as "any adult who has exhibited significant care and concern for the patient, and has maintained regular contact with the patient so as to be familiar with his or her activities, health, and religious and moral beliefs." Registration under any domestic partnership law similar to the District's law will suffice. _Georgia Fulton County_ Fulton County Commissioners voted 4-2 on July 2 to allow employees of the county to obtain health and insurance and other benefits for persons with whom they are coupled in a "committed relationship," making Fulton the fourth county in Georgia to approve domestic partnership benefits, joining Atlanta, DeKalb an Decatur counties. As originally proposed, the measure would have applied to all unmarried couples, but it was amended to apply only to same-sex couples, on the theory that straight couples can choose marriage if they want to obtain benefits. _Atlanta Constitution_, July 3. _Illinois - Cook County_ The Cook County Board voted on July 1 to establish a domestic partnership registry, joining the city of Oak Park as the only governmental body in Illinois providing such a service for same-sex partners. Although the registry will be largely symbolic, hope was expressed that employers and businesses will use it as a basis for recognizing partnerships for purposes of employee benefits and discounts. _Chicago Tribune_, July 2. _Kentucky Lexington_ Lexington Mayor Teresa Isaac created instant political chaos when she adopted an executive order extending partnership benefits to city employees. The city council went ballistic and passed a resolution calling for a moratorium on implementation of the policy while council members tried to scare up enough petitions to put a question to the voters. The resolution passed 11-4, but on July 3 Mayor Issac said she would veto it. _Lexington Herald Leader_, July 4. However, in a preliminary vote, eleven members of the council voted to put an override resolution on the counsel's agenda. The margin of votes suggested that an override is possible, most likely during August. _Lexington Herald Leader_, July 9. _Louisiana East Baton Rouge Parish_ Under the radar: On July 9, the _Baton Rouge Advocate_ reported that the East Baton Rouge Parish city government had quietly added "sexual orientation" to its internal non-discrimination policy in a publication dated April 29. Capital City Alliance, a gay rights organization, approached Mayor Bobby Simpson last fall about adding sexual orientation to the policy, and they worked quietly behind the scenes to get the change accomplished. Mayor Simpson, characterized in the news report as a "conservative Republican," told the newspaper that this was an easy decision, "just something you should have." When approached on July 8, he stated: "It's just a matter of time before it's mandatory. Right now, it's not mandatory, but it's not something that we will tolerate." There had been a Louisiana Executive Order banning sexual orientation discrimination in state government employment, but it was rescinded when Mike Foster, another "conservative Republican," took office as governor in 1996. _Maryland_ The Maryland State Board of Education voted 8-3 on June 24 to adopt new public safety standards for the state's public schools, which for the first time will include "sexual orientation" as a forbidden ground of discrimination. The vote brings the board in line with recent state legislation banning such discrimination in employment, housing and public accommodations. Expanding on existing broad and general language, the new standard specifies that all students "without exception and regardless of race, ethnicity, region, religion, gender, sexual orientation, language, socioeconomic status, age or disability" are entitled to a safe school environment. The vote came after the board heard testimony from many students about why such protection is needed. _Washington Post_, June 25. _Nevada_ _365Gay.com_ reported July 3 that Nevada Gov. Kenny Guinn had signed legislation by which adults can make written designations of other, unrelated adults for purposes of hospital visitation rights and funeral decision-making. Prior to the new legislation, unmarried couples in Nevada had no legally binding mechanism to make such designations. The local gay press hailed this as a breakthrough for same-sex couples, who have as yet achieved no legal recognition at the state level. _New York_ - The State Assembly passed the Dignity for All Students Act bill on June 10 in a bipartisan vote of 136-8, but it stalled in the State Senate, where Republicans had favored a much narrower bill. _New York Nassau County (Long Island)_ The Nassau County government has agreed with the union representing county employees to include a domestic partnership benefits program in a new collective bargaining agreement. The agreement would cover both same-sex and opposite- sex domestic partners, and would include health insurance and other benefits that are extended only to married couples under the prior union contract. _Newsday_ reported on July 11 that in order to qualify the partners must be in a "committed relationship. . . of lasting duration" and live together. They may not be married to anybody else, and after a domestic partnership dissolves, there is a six-month period before a new relationship can be recognized and qualify for benefits. County employees and their partners would have to file a Domestic Partner Affidavit with the county. The proposed collective bargaining agreement, which still needs to be ratified by the county legislature and the union's members, would run through 2007. The union ratification vote is scheduled for July 24. Reacting to cost concerns, County Supervisor Tom Suozzi's office speculated that only a small number of county employees would sign up for the benefits, due to what _Newsday_ described as "the potential stigma of identifying themselves as gay and the experiences of other municipalities." If things run true to form, this benefit won by intense lobbying by lesbian and gay rights activists will be used mainly by opposite-sex unmarried couples. _New York Suffolk County (Long Island)_ The Suffolk County legislature rejected a resolution that would have established a domestic partnership registry. Lead sponsor Jon Cooper, a Democrat from Huntington, emphasized the unfairness to his domestic partner, Rob, who is the legal parent of their adopted children but not entitled to coverage under Cooper's employment-related insurance plan. _Suffolk Life_, June 18, 2003. _Ohio - Cleveland Heights_ Supporters of a proposal to establish a domestic partnership registry have filed more than 5700 petition signatures seeking an affirmative referendum on the subject in Cleveland Heights. They are hoping for a vote on Nov. 4. _Ohio News Network_, Jun 23. _Puerto Rico_ The Senate of the Commonwealth of Puerto Rico voted on June 23 to approve a new Penal Code that would eliminate penalties for consensual sodomy, while retaining penalties for non-consensual sodomy. Little hope had been seen for the measure until the Senate's majority leader told the press in mid-June that the ban on consensual sodomy was "unenforceable." Information about the vote was posted to the Queerlaw listserve by Andres Duque, Director of Mano a Mano, a gay rights organization in Puerto Rico. _Rhode Island West Warwick_ Police officers in West Warwick, Rhode Island, will be able to take sick leave to care for a domestic partner of either sex, and the police department's equal opportunity policy will be amended to ban sexual orientation discrimination, under a new labor agreement with the police union that was ratified on July 8 by the town council. _Providence Journal_, July 9. _Vermont_ Addressing one of the handful of ways in which Vermont Civil Unions might have afforded different benefits from marriage under state law, the administration of Gov. James Douglas has moved to change state rules regarding eligibility for Medicaid-funded nursing home care to provide such coverage to civil union partners without resort to federal funds. There had been a fear articulated that any attempt to use federal Medicaid appropriations to provide benefits to civil union couples could have run afoul of the federal Defense of Marriage Act and subjected Vermont to a loss of federal Medicaid funding. Said a spokesperson from the Agency of Human Services, "The administration has always been concerned about trying to ensure that we did not run afoul of prevailing laws. On the one hand, we have an obligation to be mindful of the larger Medicaid program and to protect it. But, through a lot of careful thought, we crafted a solution that is in keeping with Vermont law." The rules changes necessary to effectuate the solution were approved on July 10 by the Legislature's Administrative Rules Committee. _Barre Montpelier Times_, July 11. A.S.L. U.S. Law & Society Notes _National_ Hope springs eternal.... On June 17, the Southern Baptist Convention announced a new initiate to reach out to gay people and cure them of their homosexuality through faith. "Homosexuals can find freedom from this sinful, destructive lifestyle," said Richard Land, head of the denomination's public policy arm, as quoted by the Associated Press. "They can be redeemed. They can be liberated." These statements were based on faith, of course, since there is no scientific evidence that sexual orientation can be altered through prayer or faith. But then, of course, religion is about faith, not scientific evidence. _Associated Press_, June 17, 2003. _National_ John Ashcroft strikes again! For several years, lesbian and gay employees of the U.S. Justice Department have held a gay pride month ceremony in the department's 'Great Hall', presenting awards, celebrating gay pride month, and usually hearing some welcoming words from a ranking official of the department. Such was the case in 2002, when Deputy Attorney General Larry Thompson spoke to the assembly of about 150 people. But late in May, word went to the leaders of the department's gay employees group that the event could not be held, ostensibly because such events are only held for occasions that have been recognized in presidential proclamations, and unlike Bill Clinton, who issued annual proclamations for gay pride month, George Bush has stated opposition to "politicizing" sexuality by any sort of formal recognition of gay people or causes. Adverse press comment led to backing and filling by department spokespersons, who claimed without any credibility that there had been miscommunications about what was decided, but that the ceremony could be held but no high agency official would participate and the gay employee group would have to bear all expenses of the event. Responding to this, the gay employee group held their event at another location the U.S. Capitol building, at the invitation of Senator Frank Lautenberg (D.-N.J.). _Associated Press_, June 11; _Washington Blade_, June 20. _National - Private Sector_ Wal-Mart, the world's largest retail sales organization and the largest private sector employer in the United States, sent an email to all store managers on July 1 announcing a new corporate policing prohibiting discrimination on the basis of sexual orientation. Wal-Mart has amended both its employment and anti-harassment policies to forbid discriminatory treatment of lesbian and gay workers, but has not yet decided to extend benefits to domestic partners. A spokesperson for the corporation attributed the new policy to requests internally from employees who said they felt e