LESBIAN/GAY LAW NOTES
ISSN 8755-9021 Summer (July/August) 2004

Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013,
212-431-2156, fax 431-1804; e-mail: asleonard@aol.com or aleonard@nyls.edu

Contributing Writers: Ian Chesir-Teran, Esq., New York City; Allen Drexel, Esq., New York 
City; 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; Sharon McGowan, Esq., 
New York, N.Y.; 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) 2004 by the Lesbian & Gay Law Association Foundation of Greater New York.

6th CIRCUIT PANEL FINDS TRANSSEXUALS PROTECTED BY TITLE VII AND EQUAL 
PROTECTION CLAUSE
 
A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, issued a 
unanimous decision on June 1 in _Smith v. City of Salem, Ohio_, 369 F.3d 912,  holding that 
Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the 14th Amendment 
both forbid discrimination against transsexuals.  The decision directly contradicted an 
unpublished decision issued a few weeks earlier by a different 6th Circuit panel, _Johnson v. 
Fresh Mark, Inc._, 2004 WL 1166553 (May 18).  In both cases, the lawsuits had been dismissed 
by the same trial judge, Peter C. Economus of the Northern District of Ohio, who has now 
suffered the somewhat odd fate of being affirmed and reversed for essentially the same ruling in 
the space of just a few weeks.  The following day, June 2, a federal district judge in Arizona 
issued a similar ruling upholding a Title VII cause of action for a transsexual plaintiff  in _Kastl 
v. Maricopa County Community College_, CIV-02-1531 PHX SRB, a decision designated as 
"not for publication" by Judge Susan R. Bolton.

_Johnson v. Fresh Mark, Inc._ was designated by the 6th Circuit panel as "not recommended for 
full-text publication," while _Smith v. Salem_ will be officially published in the Federal 
Reporter.  Since drafts of federal court of appeals opinions are circulated among all the active 
judges of the particular appeals court before they are released, this raises interesting questions 
about an important and far-reaching decision that puts the 6th Circuit, generally seen as one of the 
more conservative federal appeals courts, out in front of the other circuits on transgender rights.



In the past, the 6th Circuit has been known to immediately vacate a controversial ruling and 
schedule a rehearing before an expanded panel consisting of all active judges in the circuit.  This 
was done, for example, in a case that Lambda Legal won many years ago, _Dorr v. First 
Kentucky National Corp._ (1986), when a three-judge 6th Circuit panel ruled that a gay man 
could pursue a religious discrimination claim under Title VII when his employer fired him 
because he became president of the local chapter of Dignity, the gay Catholic group.  The effect 
of scheduling such a rehearing, or review _en banc_, is effectively to "de-publish" the original 
decision, reducing it to a nullity in terms of legal precedent.  Although the 6th Circuit did not 
make any immediate move in that direction in Smith's case, it seems likely that the City of Salem 
will try to get some sort of reconsideration, especially given the egregious facts in the case.

Selena Johnson, the plaintiff in the earlier case, was born a man but presented herself and was 
hired as a woman, and had not had gender reassignment surgery.  According to the brief per 
curiam opinion, "After receiving complaints that Johnson had used both the men's and women's 
restrooms, Johnson's employer informed her that she could not return to work until it received a 
note from her doctor stating whether she was male or female and whether there was any reason 
she should be using the restroom of the opposite gender."  The employer ultimately decided that 
Johnson's driver's license, which designated her as male, should settle the matter, and ordered 
her to use only the men's room.  On this basis, Johnson refused to return to work and was 
discharged for absenteeism.

Johnson sued under Title VII and the Americans With Disabilities Act (ADA).  Judge Economus 
granted the employer's motion to dismiss, finding that Title VII does not forbid discrimination 
against transsexuals and that the ADA specifically states that "transsexualism" is not a condition 
covered by the statute as a disability.  Johnson argued on appeal that the precedents the trial court 
relied upon had been superseded by _Price Waterhouse v. Hopkins_, 490 U.S. 228 (1989), where 
the Supreme Court held that sex-stereotyping is a form of sex discrimination prohibited by Title 
VII.  Economus rejected that argument.  Without any substantive discussion, the 6th Circuit said 
in its unpublished opinion that after hearing oral argument and studying the briefs filed by the 
parties, "we are not persuaded that the district court erred in dismissing the complaint."

Jimmie Smith's case was a bit different.  Smith, also born male, had a successful employment 
history with the Salem Fire Department, rising to the rank of lieutenant.   Smith was diagnosed as 
suffering from gender dysphoria and began to feminize his dress and appearance.  When this 
raised questions with co-workers and comments that Smith was not "masculine enough," Smith 
notified the immediate supervisor about the diagnosis and the likelihood that eventually Smith 
would probably get a sex-change operation.  Although Smith asked that this be kept confidential, 
the supervisor immediately communicated the information to upper management and the top 
officials in the city government quickly became involved.

According to the opinion for the 6th Circuit by Judge R. Guy Cole, Jr., the Fire Chief and the 
city's top lawyer convened a meeting with the mayor, the city auditor, the city service director, 
and the city safety director, for the specific purpose of figuring out how to get rid of Smith.  The 
meeting settled on a strategy to provoke Smith into resigning by requiring a battery of 
psychological exams, hoping that Smith would balk at participating and could then be discharged 
for insubordination.  The safety director did not dissent at the meeting, but called Smith after the 
meeting to inform him about this plan, calling it a "witch hunt."



Smith promptly retained an attorney, who telephoned the mayor to warn about legal ramifications 
if they tried to go through with the plan, and Smith filed a discrimination complaint with the 
Equal Employment Opportunity Commission.  Four days later, the first chief suspended Smith 
based on "an alleged infraction of a City or Fire Department policy," a charge that was later 
found to be without merit.

Smith's lawsuit claimed sex discrimination in violation of Title VII and the constitution, 
unlawful retaliation, and violations of state law, including invasion of privacy.  Economus 
granted the city's motion to dismiss the case, based on the same reasoning as in _Johnson_. 

The three-judge panel in _ Smith_  was different from the one that had upheld the dismissal in 
_Johnson_ in an important respect.  Instead of consisting of three members of the 6th Circuit, it 
included two 6th Circuit judges and a semi-retired federal trial judge from California, William 
Schwarzer.  Federal judges have lifetime tenure and are not required to retire, but they can elect 
upon reaching a certain age to take senior status and a reduced workload at the same rate of pay.  
When senior judges signify their willingness to travel, they may be assigned to sit "by 
designation" as guest judges in other federal trial and appellate courts.  They are considered to be 
honorary members of the court on which they are sitting, and the decisions in which they 
participate are considered to be decisions of that court.

Schwarzer's participation may have made a big difference in the outcome of the case, because 
the 9th Circuit, which hears appeals from the federal courts in California, has taken a leading role 
in recent years in expanding the concept of "sex" under federal anti-discrimination laws.  In 
_Schwenk v. Hartford_, 204 F.3d 1187 (9th Cir. 2000), the 9th Circuit ruled that a transgendered 
person could sue under the federal Violence Against Women Act and, in that opinion, observed 
that the body of court decisions rejecting transsexual discrimination claims prior to the Supreme 
Court's decision in _Price Waterhouse v. Hopkins_ was no longer good law.   In two later cases, 
_Nichols v. Azteca Restaurant Enterprises, Inc._, 256 F.3d 864 (9th Cir. 2001) and _Rene v. 
MGM Grand Hotel, Inc._, 305 F.3d 1061 (9th Cir. En banc 2002), cert. denied, 538 U.S. 922 
(2003), the 9th Circuit held that employees subjected to homophobic harassment of a sexual 
nature could sue under Title VII if they could credibly claim that they were harassed due to 
gender non-conformity, concluding that this was discriminatory sex-stereotyping and thus sex 
discrimination.

Writing for the _Smith_ panel, Judge Cole found that these precedents had thoroughly 
undermined the old precedents that Economus relied upon in dismissing the case.  Judge 
Economus erred in focusing on Smith's characterization as a "transsexual" rather than on the 
reason why Smith was suffering adverse treatment in the workplace.  Title VII is concerned with 
the later, not the former.  It does not create "protected classes" of individuals, but rather prohibits 
discrimination on "prohibited grounds," such as the sex of an individual.  (This was the lesson of 
the Supreme Court's unanimous decision in its same-sex harassment case, _Oncale v. 
Sundowner Offshore_, 523 U.S. 75  (1998), when the Court held that as long as a victim was 
harassed "because of sex," it did not matter whether the victim and the harasser were of the same 
gender or opposite genders.)



"Sex stereotyping based on a person's gender non-conforming behavior is impermissible 
discrimination, irrespective of the cause of that behavior," wrote Cole. "A label, such as 
'transsexual,' is not fatal to a sex discrimination claim where the victim has suffered 
discrimination because of his or her gender non-conformity. . .  Even if Smith had alleged 
discrimination based only on his self-identification as a transsexual - as opposed to his specific 
appearance and behavior - this claim too is actionable pursuant to Title VII.  By definition, 
transsexuals are individuals who fail to conform to stereotypes about how those assigned to a 
particular sex at birth should act, dress, and self-identify.  Ergo, identification as a transsexual is 
the statement or admission that one wishes to be the opposite sex or does not relate to one's birth 
sex.  Such an admission - for instance the admission by a man that he self-identifies as a woman 
and/or that he wishes to be a woman - itself violates the prevalent sex stereotype that a man 
should perceive himself as a man."  Thus, if an individual suffers discrimination because he or 
she is transgendered, such discrimination violates Title VII's ban on sex discrimination.

From there, Cole found it no stretch at all to revive Smith's constitutional claim as well, noting 
that claims of intentional sex discrimination by public employees also come within the 
prohibition of equal protection of the laws in the 14th Amendment.  Cole also found that Smith 
had sufficiently alleged a claim of unlawful retaliation, based on the suspension meted out just 
days after Smith's lawyer had telephoned the mayor.  Since the federal claims in Smith's case 
were revived, upon return to the trial court the state law claims could also be revived.

While the 6th Circuit was not ruling on the ultimate merits of Smith's discrimination claims, the 
city has not seriously controverted Smith's allegation that city officials met with the specific 
purpose of seeking his removal from employment solely because he is transsexual, so this 
decision is likely to lead to a prompt settlement offer from the city if it is not overturned by the 
full 6th Circuit or reversed by the Supreme Court.  

Although quite a few federal appeals courts have now accepted the argument that gender non-
conforming people may find protection under Title VII, this is the first direct appellate ruling that 
a transsexual's sex discrimination claim may be pursued under that statute, with the added 
complication that because Smith is a public employee and Smith's claim involves intentional 
discrimination, a constitutional claim may also be made.  As such, it is a decision of immense 
importance for the transgendered community.  

If upheld against further appeals, this ruling could render superfluous the continuing efforts by 
transgender rights activists to get "gender identity" added to the pending federal gay rights bill, 
since transgendered people would already have more protection under Title VII, which forbids a 
wider range of discriminatory action than the narrowly-drafted ENDA (Employment Non-
Discrimination Act) would provide.  Given its significance, this case could end up before the 
U.S. Supreme Court.  



In the _Kastl_ decision from Arizona, issued the following day, District Judge Bolton confronted 
facts very similar to the _Johnson_ case, except for one interesting particular. Whereas Johnson's 
employer decided that a driver's license designating her as male was determinative of her sex, 
Kastl's employer, a community college, deemed her driver's license, which she had gotten 
legally changed to designate her as female, as "inconclusive" and "irrelevant" to the question of 
which restroom she could use.  Rebecca Kastl was both a student and an adjunct faculty member 
at the college.  The problem arose when other students complained about her use of the women's 
restroom facilities.  The school then adopted a policy that until a transgendered person presents 
evidence of completed sex-reassignment surgery, they must use the restroom intended for their 
original biological sex.  In other words, Kastl would have to use the men's room, even thought 
her dress, grooming, and presentation were entirely female.  Protesting the danger to which this 
would subject her, she refused to comply, and was discharged.  

Given the nature of the case, Kastl asserted an array of statutory claims under Title VII of the 
Civil Rights Act, Title IX of the Higher Education Act, the ADA, and the federal constitution.  
Ruling on the college's motion to dismiss, Judge Bolton agreed that the ADA claim had to go, 
but refused to dismiss any of the other claims, finding that each stated a viable legal cause of 
action and that contested factual issues remained for trial on all of them.  Most significantly, 
Bolton, who was likely unaware of the 6th Circuit's _Smith_ decision that was just released the 
day before her opinion, followed similar reasoning in finding first that it was well-established 
that gender non-conformity cases can be litigated under Title VII, next that transsexualism 
presents a clear instance of discrimination due to gender non-conformity, and then that what 
constitutes intentional sex discrimination under Title VII also counts as sex discrimination under 
the Equal Protection Clause.  

In addition, Bolton found that the definition of sex discrimination under Title IX would be 
congruent with Title VII, and that Kastl had also stated plausible claims of due process and free 
speech violations.  In light of the first impression issues raised in the case, it is unclear why 
Bolton designated her opinion as "not for publication," which is a shame in light of the paucity of 
officially published authority on transgender workplace issues. Perhaps she will reconsider if the 
decision attracts sufficient attention and comment.  Pass the word. . .  A.S.L.

LESBIAN/GAY LEGAL NEWS

Supreme Court Affirms Preliminary Injunction Against Child On-Line Protection Act

Continuing an almost unbroken string of victories for free speech advocates challenging 
Congressional attempts to shield children from exposure to on-line pornography, the Supreme 
Court ruled 5-4 in _Ashcroft v. ACLU_, 542 U.S. ____, No. 03-218, 2004 WL 1439998 (June 
29), that a federal district court in Philadelphia had properly issued a preliminary injunction to 
stop the Child Online Protection Act (COPA) from going into effect.   The Court ruled that the 
government had not met its burden of showing that delaying the implementation of the Act until 
a court can determine on the merits whether it violates the First Amendment would cause 
irreparable injury to the public.  The district court will now have an opportunity to address the 
constitutional issue on the merits while the injunction continues. 

COPA provides criminal penalties for any commercial on-line content provider of sexually-
oriented material that may be judged "harmful to minors" if the provider does not condition 
access on use of a credit card or some other adult verification device.



Justice Anthony Kennedy wrote the decision for the Court, which was joined by Justices John 
Paul Stevens, David Souter, Clarence Thomas, and Ruth Bader Ginsburg.  In a separate 
concurring opinion that was joined by Justice Ginsburg, Justice Stevens wrote that he would 
have declared the Act unconstitutional outright, rather than sending the case back to the district 
court for a hearing.

Justice Stephen Breyer, in a dissent joined by Chief Justice William Rehnquist and Justice 
Sandra Day O'Connor, argued that the compelling interest of protecting children and the 
technological choices made by Congress in the Act were sufficient to uphold the Act against the 
constitutional challenge to a content-based regulation of speech.   Breyer found that the statute 
was subject to "strict scrutiny," the most rigorous form of judicial review, but would survive such 
review and thus should not have been enjoined.  By contrast, Justice Scalia, writing only for 
himself, reiterated his longstanding view that the constitution provides little protection to 
pornographic content, and thus would uphold the statute as a reasonable attempt by Congress to 
protect children from exposure to it.

The whole controversy really comes down to "screens" versus "filters."  In COPA, Congress 
provided that anybody in the United States who puts sexually-oriented material that might be 
harmful to minors on-line for commercial purposes must place the material behind some sort of 
age verification screening process, either by requiring people to use a credit card to access it or 
by requiring people to subscribe to some age verification system in order to get access.  The 
American Civil Liberties Union, which filed the suit as lead plaintiff, argued that this was too 
restrictive for First Amendment purposes, and that a less restrictive alternative is available in the 
form of filters that can be activated to block access to sexually-oriented sites on computers 
accessible to kids.  The ACLU argues that adults should not be encumbered in being able to 
access sexually-oriented materials on the Internet.

In his opinion for the Court, Justice Kennedy emphasized that the question before the Court was 
actually rather narrow; not whether the statute is unconstitutional, but rather whether the ACLU 
had shown that there was a serious enough constitutional question under the First Amendment so 
that the law, which imposes criminal penalties, should not be allowed to go into effect until a 
court has had an opportunity to decide the constitutional issues after a full trial on the merits of 
the case.  In such a situation, the question for an appeals court is whether the trial court abused its 
discretion in granting the preliminary injunction.

For the majority of the Court, this was not a difficult question.  Kennedy pointed out that under 
the Supreme Court's own precedents, as long as the plaintiff shows that the constitutional 
question is at least a close one, open to real argument, and that the consequence of letting the 
statute go into effect would be to threaten criminal penalties for speech that is arguably protected 
by the constitution, then issuing a preliminary injunction is not an abuse of discretion in 
anticipation of a full trial on the merits.  



The ACLU had pointed out various ways in which the use of filters could be more effective in 
achieving Congress's child-protection goals than the screening method.   In particular, plenty of 
sexually-related content on the Internet originates from outside the United States, from content 
providers who would not be subject to the statute, since Congress generally lacks authority to 
impose criminal penalties for conduct that does not take place under U.S. jurisdiction.  But a 
filter on an individual computer that is programmed to detect and block sexually-related material 
could block the unscreened foreign pornography.   Thus, argues the ACLU, the filter technology 
may be more effective in stopping children from seeing Internet pornography, while leaving 
adults free to access it.

Agreeing with the ACLU argument, Kennedy also noted the potential harm to free speech  of 
letting the statute go into effect and then throwing the burden on particular internet content 
providers to raise these issues in defending a criminal prosecution.  Since filtering technology is 
available now, parents who are concerned about their child's exposure to sexual materials on-line 
can take steps to block their access, and the Supreme Court has already upheld a federal statute 
that provides strong financial incentives to public and school libraries to install such filters at all 
their internet access points.  

But, Kennedy noted, it is possible that technological innovations, which happen so fast on the 
Internet, have already made the district court's initial determination obsolete, so the case needs to 
be viewed anew by the district judge to determine on the merits whether the balance struck by 
Congress between free speech and protection of children was appropriate in this case.

Justices Stevens and Ginsburg concurred, but clearly only to be sure that the injunction stays in 
place, since their views, expressed in Stevens' dissent, go further in questioning the statute's 
constitutionality. "Criminal prosecutions are, in my view, an inappropriate means to regulate the 
universe of materials classified as 'obscene,'" wrote Stevens, "since 'the line between 
communications which "offend" and those which do not is too blurred to identify criminal 
conduct,'" quoting his own dissenting opinion in _Smith v. United States_, 431 U.S. 291, 316 
(1977).  Stevens has been consistently skeptical about the use of criminal law to police sexually-
oriented speech.

"To be sure," wrote Stevens, "our cases have recognized a compelling interest in protecting 
minors from exposure to sexually explicit materials.  As a parent, grandparent, and great-
grandparent, I endorse that goal without reservation.  As a judge, however, I must confess to a 
growing sense of unease when the interest in protecting children from prurient materials is 
invoked as a justification for using criminal regulation of speech as a substitute for, or simple 
backup to, adult oversight of children's viewing habits." A.S.L.

Mississippi Supreme Court Rebuffs Lambda Legal Ethics Complaint Against Homophobic Judge



In a 5-2 decision that drew a vigorous and impassioned dissent, the Mississippi Supreme Court 
ruled on July 1 in _Mississippi Commission on Judicial Performance v. Wilkerson_, 2004 WL 
1471110, that a state trial judge who made public statements categorically impugning the sanity 
of gay people may not be sanctioned under the state's judicial ethics code, because his remarks 
are protected as political and religious speech under the First Amendment.  The ruling rejected a 
recommendation for discipline from the Mississippi Commission on Judicial Performance, which 
found that a "letter to the editor" and a follow-up radio interview by George County Justice Court 
Judge Connie Glen Wilkerson violated half a dozen provisions in the state's judicial ethics code 
as well as a provision of the state constitution, Article 6, Section 177A, which charges judges 
with refraining from conduct that will bring the judicial office into disrepute.

Wilkerson's unprovoked outbursts were a reaction to news reports about the California 
legislature's decision to authorize same-sex partners to bring wrongful death lawsuits, just as 
legal spouses may do, for the injury they suffer as a result of harm to their partners.  California 
was reacting in response to a notorious case involving a surviving lesbian partner's lawsuit 
against the keepers of pit-bulls that had mauled her partner to death.  Wilkerson wrote a letter to 
a local newspaper, stating that he "got sick on my stomach today" when he read about this 
legislation, asserting (in all-capital letters) "AMERICA IS IN TROUBLE!," and stating as part of 
his diatribe, "In my opinion gays and lesbians should be put in some type of a mental institute 
instead of having a law like this passed for them." Wilkerson's letter referenced the Bible and 
God's will.   

The newspaper published the letter, resulting in a radio station calling Judge Wilkerson and 
interviewing him on the air.  (Wilkerson claimed in response to the ethics charge that he did not 
know his remarks were being broadcast.)  During the radio interview, the reporter repeatedly 
asked Wilkerson about how these statements would affect his work as a judge, but Wilkerson 
insisted that he had not signed the letter as a judge, but just as a "red blooded American, you 
know, Christian man.  The Christian people need to take a stand as well as anybody else, you 
know."  Wilkerson did not shy away from repeating his earlier anti-gay remarks, however, 
stating, "As far as I know, a person like that's sick, you know.  I wouldn't want to punish a 
fellow for being sick.  I'd want to do something for him, help him in some way, you know.  
That's where I'm coming from.  But I don't think he ought to have a right - extra - you know, 
extraordinary rights."

Outraged gay folks in Mississippi brought these comments to the attention of Lambda Legal, 
which filed ethics charges against Judge Wilkerson with the Commission on Judicial 
Performance.  After an investigation, the Commission determined that Wilkerson's comments 
deserved sanctions, but the Mississippi Supreme Court decided that they are protected by the 
First Amendment.  Writing for the court, Justice Jess H. Dickinson found that Wilkerson was 
commenting about matters of public concern.  Under the Supreme Court's First Amendment 
jurisprudence on public employee speech, comments on matters of public concern have a high 
degree of constitutional protection, and can only be curtailed if required in order to accomplish 
the public purposes for which the individual is employed.  Dickinson did not find that such a 
necessity existed in this case.



What was particularly interesting about Dickinson's opinion was the notion that Wilkerson's 
comments were actually useful for lesbians and gay men who might find themselves in his court. 
  "Whatever state interest the Commission may find in preventing judges from announcing their 
private views on gay rights would conflict with, and be outweighed by, the more compelling state 
interest of providing an impartial court for all litigants," wrote Dickinson, "including gays and 
lesbians.  Allowing - that is to say, forcing - judges to conceal their prejudice against gays and 
lesbians would surely lead to trials with unsuspecting gays or lesbians appearing before a partial 
judge.  Unaware of the prejudice and not knowing that they should seek recusal, this surely 
would not work to provide a fair and impartial court to those litigants."

Dickinson observed that Judge Wilkerson "will doubtless face a recusal motion from every gay 
and lesbian citizen who visits his court.  We can predict that the rationale for the motions will be 
that Judge Wilkerson is prejudiced against gays and lesbians, and he has a preconceived belief 
that their mental capacity as a class of people is inferior to society in general."  The court did not, 
however, take a position on whether ultimately Wilkerson would have to recuse himself from all 
litigation involving gay people.

Justice George C. Carlson, Jr., wrote a passionate dissent, joined by Justice James E. Graves, Jr.  
Carlson, after insisting that this case was not about gay rights, seemed to feel that the majority 
had missed the point.  The issue wasn't just whether Judge Wilkerson was personally biased, or 
had created the appearance of being biased, but rather whether his conduct would lessen respect 
for the judiciary.  Quoting an earlier decision by the court, he pointed out that "the primary 
purpose of judicial sanctions is not punishment of the individual judge but 'to restore and 
maintain the dignity and honor of the judicial office and to protected the public against future 
excesses.'"  

"Canon 2 [of the judicial ethics code] charges all judges to avoid impropriety and the appearance 
of impropriety in all activities.  Most important is the charge for judges to respect and comply 
with the law and conduct themselves in a manner that promotes public confidence in the integrity 
and impartiality of the judiciary."  For judges to make biased remarks in public statements might 
tip off litigants that they should move for recusal, but, in Carlson's view, judges should not be 
making biased remarks in any event, since it undermines the judiciary's reputation for fairness.  
Carlson also disagreed with the court's conclusion that Judge Wilkerson's comments qualified 
for the highest level of First Amendment protection accorded to comments on matters of public 
concern. "Although speech of today's judge was supposedly directed to state legislation 
regarding same sex partnership, he also did not hide his views on his opinions of the homosexual 
population as a whole.  I do not agree that this type of speech - the judge's personal views 
regarding all homosexuals - relates to political and social community concerns.  However, even 
if the judge's speech is found to relate to political and social community concerns, this type of 
speech fails the second prong [of the First Amendment analysis that has been set forth by the 
U.S. Supreme Court] by 'impeding the performance of the speaker's duties.'"

Because the court's decision was based in part on its interpretation of the First Amendment, it 
might be possible to frame an appeal to the United States Supreme Court.  At press time, Lambda 
Legal had not yet announced whether it would pursue such a course.  A.S.L.

Gay Lebanese Man Loses U.S. Asylum Appeal



A 1998 advisory opinion by the State Department that <169prohibitions on homosexual behavior 
went unenforced" in Lebanon helped to sink an asylum petition by Mohamad Abdul-Karim, a 
gay man who had appealed a negative determination by the Board of Immigration Appeals to the 
U.S. Court of Appeals for the 9th Circuit in San Francisco. _Abdul-Karim v. Ashcroft_, 2004 WL 
1435149 (June 24, 2004) (not selected for publication).  The brief per curiam opinion did not 
relate how Abdul-Karim came to be present in the United States. 

Abdul-Karim had testified in an asylum hearing about former classmates in Lebanon who had 
been arrested for sodomy, and produced home-made translations of undated, but apparently old, 
newspaper clippings to support his contention that he had a reasonable fear of persecution if he 
was required to return to Lebanon.  But the Immigration Judge concluded that this evidence, 
much of it second-hand and unverifiable, was not sufficient to overcome the results of the 1998 
State Department survey, not least because the question is whether a gay Lebanese man would 
face persecution today, and all of Abdul-Karim's evidence dated back many years when 
conditions in Lebanon may have been quite different.

Both the Board of Immigration Appeals and the 9th Circuit panel concluded that Abdul-Karim 
had failed to rebut the "substantial evidence" of the State Department advisory.  According to 9th 
Circuit precedents, these State Department advisories constitute "substantial evidence" in the 
absence of "powerful contradictory evidence."

Abdul-Karim's failure to win asylum may have been inevitable in light of current realities in 
Lebanon, but the court's discussion of his evidence suggests the possibility that better-informed 
representation might have produced a more favorable result.  For example, the newspaper 
clippings he submitted were undated and there was no certification as to the reliability of the 
translations.  The court noted that under 8 C.F.R. sec. 103.2(b)(3), any foreign-language material 
submitted as evidence in an immigration hearing is supposed to consist of a "full English 
translation which the translator has certified as complete and accurate, and by the translator's 
certification that he or she is competent to translate from the foreign language into English."  The 
translations submitted by Abdul-Karim were unsigned and unsworn, suggesting that he must 
have been representing himself pro se, or with the assistance of a lawyer unfamiliar with the rules 
of practice in the asylum forum.  A.S.L.

Minnesota Appeals Court Reverses Conviction of Gay Teacher For Possession of Child 
Pornography

A unanimous panel of the Minnesota Court of Appeals has reversed the convictions of 
elementary school teacher Brian Victor Myrland for three counts of possession of pictorial 
representations of minors.  Based upon a searching analysis of the record, the court concluded 
that insufficient evidence had been presented against Myrland to sustain the convictions.  In one 
of the more interesting portions of its opinion, the court also sternly rebuked the prosecutor in the 
case for making inappropriate, inflammatory comments to the jury designed to suggest that 
Myrland was a pedophile, notwithstanding the utter lack of evidence that this was so. _State of 
Minnesota v. Myrland_, 681 N.W.2d 415 (Minn. Ct. App.,  June 22, 2004). 



On May 14, 2001, students at Highland Elementary School in Apple Valley, Minnesota 
approached the school's computer lab monitor, Lisa Losure, to tell her that they had found 
something "icky"at a printer in the lab.  Losure investigated and found two printed Internet 
photographs, both of which depicted adult men with exposed genitals.  The lab monitor 
immediately suspected Myrland, a fifth-grade teacher, of having viewed and printed images, 
because some months earlier, Myrland had approached Losure and told her that he had viewed 
some "inappropriate" web sites on his classroom computer.  After discovering the pictures on 
May 14, Losure walked through the school to determine which computers were running the 
Internet at that time.  She found four computers that had an Internet browser open, including the 
computer in Myrland's classroom.

Subsequent examination of Myrland's computer turned up numerous images and references to all 
manner of pornographic material classroom computer, including some with references to "boys" 
and "sex teens."  The school confronted Myrland, who admitted to having used several other 
school computers as well to view adult male pornography during non-school hours.  These 
computers were located in the classrooms of other teachers.  His practice was apparently to find 
images on the Internet that "pleased" him, then print them off on school printers and take them 
home.

During the school's examination of other computers Myrland admitted to having used, school 
personnel found references to several web sites that appeared to contain sexual images of minors, 
and contacted the police.  The web sites in question contained terms that police associate with 
child pornography, such as "illegal teens" and "hard-core action of teen boys."  However, 
Myrland told the police he had never viewed or even attempted to view sexual images of minors, 
and that he had no interest in such material.  He indicated that his main interest was adult, male, 
gay pornography, but no child pornography.

Myrland was ultimately charged with three separate counts of possession of pictorial 
representations of minors, each count corresponding to a computer on which child pornography 
had been found.  During a three-day jury trial, witnesses for the State testified that searches of the 
computers Myrland had admitted to using revealed thousands of pornographic images, a few of 
which depicted what appeared to be young teenage boys engaged in sexual behavior.  However, 
on cross-examination, one witness admitted that it was impossible to determine who had 
originally downloaded the images or viewed them, and that anyone with access to the computers 
could have done so.  Another prosecution witness, a computer analyst with the Minnesota Bureau 
of Criminal Apprehension, likewise admitted that there was no way to tell who had viewed the 
images or if they had been viewed at all.  He further admitted on cross-examination that some of 
the web sites referenced could have been accessed inadvertently or could have appeared on the 
screen when a computer user accessed another site.

Myrland acknowledged at trial that he was gay and that he had viewed adult male pornography 
on school computers during after-school hours, but testified he had never viewed or searched for 
any images of minors engaged in sexual behavior.  Crucially, he stated (and the State conceded) 
that all teachers had access to all school computers using the same access code.  The computers 
were available during the summer, when Myrland was not present in school, and he admitted that 
he often left the Internet running on his computer during school hours when he was not in the 
classroom.  

The jury found Myrland guilty of two counts of possession of child pornography and acquitted 
him of the third count.


Based upon its review of the evidence presented at trial, the appellate court, in an opinion by 
Judge Hudson, concluded that the evidence was insufficient to support Myrland's convictions.  
Hudson explained that the circumstantial evidence upon which the prosecution relied did not 
"form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of 
the accused as to exclude 'beyond a reasonable doubt' any reasonable inference other than guilt." 
 First, while the evidence showed that Myrland did have access to the computers and the Internet, 
undisputed evidence also showed that the Internet access code was the same for all teachers on 
all the school's computers, and that any number of students, teachers, or others may also have 
accessed to the computers.  

Second, the court held, the evidence did not prove beyond a reasonable doubt that Myrland had 
"possessed the images knowing their content."  The court reviewed all the evidence presented at 
trial, including a number of photographic images that appeared to depict minor boys engaged in 
sex acts.  While it noted that these images were indeed "graphic and repugnant," and also 
"disturbing and repulsive," the court concluded that this fact was not proof that Myrland 
possessed or intended to possess child pornography.

One of the more notable, and praiseworthy, aspects of this interesting opinion is its discussion of 
prosecutorial misconduct in the case.  In general, the court noted, it is improper for a prosecutor 
"to urge the jury to protect society with its verdict."  Similarly, prosecutors are forbidden to make 
arguments intended to "inflame the passions or prejudices of the jury," or to attempt to divert the 
jury from the facts of the case by making broad policy arguments.

In this case, however, the prosecutor was permitted to argue, among other similar things, that 
once a pornographic image of a child reaches the Internet, that child is victimized again and again 
every time the image is viewed.  She also stated that in order for child pornography to exist, 
"there had to be a kid who either had to be sexually abused, who was required to perform some 
type of sexual act."  The appellate court noted that these statements were irrelevant to the facts of 
the case, and that were also highly inflammatory.  There was no allegation whatsoever that 
Myrland had sexually abused any child or children or created the images in question.  Indeed, the 
court noted, Myrland was a well-liked teacher who had never, in 20 years of teaching, been 
accused of improper behavior toward a student.  The prosecutor's statements in closing 
argument, the court concluded, were clearly designed to appeal to the jury's disgust over the 
content of the images and to divert the jurors' attention from the fact that the State had failed to 
prove that appellant was in fact guilty of the charged crimes. _Allen Drexel_

Colorado Appeals Court Upholds Parenting Order for Lesbian Co-Parent, But Remands for 
Reconsideration of Restriction on Exposure to "Homophobic" Religious Teachings



In an important ruling on previously undecided questions of Colorado law, a three-judge 
Colorado appellate panel ruled in _In the Interest of E.L.M.C., a Child_, 2004 WL 1469410 (July 
1), that Elsey Maxwell McLeod, the former domestic partner of Cheryl Ann Clark, was entitled 
to an award of parenting time and responsibility toward the child whom Clark had adopted, but 
that the trial court's order restricting Clark from exposing the child to homophobic religious 
teachings required reconsideration due to constitutional concerns about freedom of religion.  The 
ruling was particularly significant because Colorado appellate courts had not yet taken a position 
on the issues generated by _Troxel v. Granville_, 530 U.S. 57 (2000), in which the Supreme 
Court had invalidated a Washington state law that authorized awarding visitation rights to third 
parties over the protest of a child's parents when the court found that to be in the child's best 
interest.  The Supreme Court had ruled that the biological or legal parents of a child have 
constitutional rights to determine the upbringing of the child that cannot be lightly interfered with 
by the state.

Since the Troxel case, courts in several states have had to determine the impact of that decision 
on cases in which former domestic partners are disputing issues of child custody or visitation 
between one parent who is the legal parent and the other parent who has no legal relationship 
with the child.

Clark and McLeod had been domestic partners for several years when they decided to adopt a 
child together.  Their plan was to adopt a Chinese child, but they learned that China did not allow 
joint adoptions by same-sex couples, so they went forward with Clark being the sole adoptive 
parent.  However, after the adoption was approved and the women brought the child back to 
Colorado, they filed a petition for custody with a Colorado court and obtained a judicial order 
granting joint custody of the child to the two women.  After a few more years had passed the 
relationship between the women deteriorated.  Based on the opinion for the court by Judge John 
R. Webb, this deterioration seems partly due to McLeod's relationship to the child, with Clark 
having sent McLeod a letter accusing her of bonding so tightly with the child as to "leave out" 
Clark.   Ultimately the women split up and Clark tried to gradually cut down the amount of 
contact McLeod could have with the child, with an aim to eliminating contact entirely after a few 
years.  According to newspaper reports (but not mentioned in the court's opinion) was that Clark 
had become a devout Christian and McLeod feared that she was taking the child into religious 
settings where anti-gay statements would be made.  

In pursuance of her plan to end McLeod's contact with the child, Clark filed a motion with the 
state court challenging the validity of the custody order that had been issued after the child was 
adopted, and persuaded a magistrate judge that the order was void on the basis that the court had 
lacked jurisdiction.  Colorado's custody statutes are written in such a way as to lend some 
credence to the argument that a court would not have jurisdiction over a custody dispute unless it 
arose in the context of a marriage breaking up.

However, the magistrate then foiled Clark's plans by temporarily ordering joint parenting time 
and joint decision-making while the case was pending, and subsequently the trial judge, Denver 
District Judge John W. Coughlin, determined that the original custody order was actually valid 
and that joint parental responsibility should be awarded to the two women, with the caveat that 
Clark would have sole responsibility in the areas of dental care and religion.  Judge Webb's 
decision does not make clear why Judge Coughlin felt the need to make this further point, but he 
ordered Clark not to expose the child to any "homophobic" religious teachings.  The trial judge's 
order did not define the term "homophobic."



Clark appealed, arguing that under the Troxel decision the court could not award parental rights 
to McLeod over Clark's opposition, so long as Clark was found to be a fit parent.  As have many 
other courts, the Colorado Court of Appeals found that this was too broad a reading of Troxel, as 
the Supreme Court had not set up a total bar on custody or visitation claims by "unrelated" third 
parties.  However, addressing a point that had not been specifically decided by the Supreme 
Court, Webb found that legal parents have a fundamental right regarding decision-making and 
control of the raising of their children, so a compelling state interest would have to be shown to 
justify circumventing Clark's objections.  Preventing harm to the child could be such a 
compelling state interest.

In this case, Webb found that the deep psychological bond between McLeod and the child 
provided the basis for such a compelling interest, since the state is legitimately concerned about 
avoiding harm to children, whether that harm is physical or psychological, and Colorado courts 
have long accepted the proposition that terminating contact with a "psychological parent" may be 
the source of significant harm to a child.  Thus, the compelling interest standard would be met, 
and the trial court's decision to award joint parenting rights to McLeod was affirmed.

However, the court of appeals found that the trial record did not support the court's order about 
exposing the child to "homophobic" religious teachings.  For one thing, Clark's freedom of 
religion was implicated, an interest separate from and additional to her fundamental right as a 
parent, so once again a compelling interest would have to be shown.  More particularly, if the 
state was to impose some restriction on Clark's ability to provide religious exposure to her child, 
it would have to be shown that the restriction was necessary to prevent harm to the child.
Webb found that there was nothing in the trial record to suggest that exposing the child to 
homophobic religious teachings, whatever that might mean, would cause physical or 
psychological harm to the child.  However, the court did not merely overturn this part of the trial 
court's order.  Instead, it returned the case to the trial court with instructions to conduct 
additional fact-finding on this issue before making a final decision.  It will be up to McLeod to 
show that such a restriction is necessary to prevent harm to the child.

Because of the unprecedented trial court order restricting exposure to homophobic religious 
teachings, the case had drawn widespread media interest (and even some threats by right-wing 
Colorado legislators to impeach Judge Coughlin) and attracted amicus briefs from a variety of 
organizations, ranging from the right-wing anti-gay Liberty Counsel organization to the National 
Center for Lesbian Rights and the ACLU of Colorado.  Media coverage of the appellate court's 
reversal of this part of the order also received extensive coverage, much of it (at least in the 
headlines) missing the nuance of the decision, which did not reject the notion that such an order 
could be made, but rather found that the factual predicate for such an order had not been made 
yet in this case, but might be upon further factual investigation by the trial court. A.S.L.

Yale Faculty and Students Granted Standing to Battle Solomon Amendment



Judge Janet C. Hall of the U.S. District Court for Connecticut has granted standing to two groups 
at Yale Law School (YLS) to challenge the anti-gay Solomon amendment, which denies certain 
funding to educational institutions that fail to give military recruiters access to students. _Burt v. 
Rumsfeld_, 2004 WL 1392381 (D. Conn. June 9, 2004) (granting standing to members of Yale 
Law School faculty); _Student Members of Student/Faculty Alliance for Military Equality 
(SAME) v. Rumsfeld_, 2004 WL 1392275 (D. Conn. June 9, 2004) (granting standing [although 
denying it on some issues] to members of YLS gay student organization).  The Solomon 
Amendment was attached to the National Defense Authorization Act for Fiscal Year 1996.  It is 
now codified at 10 U.S.C. sec. 983.  It is seen as anti-gay because campus restrictions against the 
military are ordinarily adopted by colleges with gay-inclusive non-discrimination policies 
(NDPs). The U.S. military bars open gays and lesbians from its ranks, therefore, cannot agree to 
campuses' NDPs.

Rep. Gerald Solomon, an upstate N.Y. Republican who sponsored the amendment, retired from 
the House of Representatives at the end of 1998 and died in 2001, but his name lives on in the 
infamous amendment.

The court's rulings were on the Defense Department's motions to dismiss the complaints for lack 
of standing and lack of ripeness. The motions were denied in regard to the faculty, and granted in 
part, denied in part for members of the student organization.

Since 1978, YLS has had a policy barring discrimination based on sexual orientation to all 
employers using the schools placement offices. Yale found that the policies of the Armed Forces 
discriminate against homosexuals; recruiters for the military, therefore, were barred from the 
campus. After several years of letter-writing between the Defense Department and YLS, the 
Defense Department notified Yale that it was in violation of the Solomon Amendment, making it 
ineligible for certain funding.

Forty-four faculty members filed suit on Oct. 16, 2003, contending that the Solomon Amendment 
and the regulations implementing it violate their First and Fifth Amendment rights; that the 
regulations implemented are not a reasonable interpretation of the Solomon Amendment; and 
that, in any case, YLS is in compliance. The aspects of the complaint concerning the First and 
Fifth Amendments regard the necessity for the faculty to "provide the military with the public 
association and endorsement necessarily conveyed by allowing the military access to the Career 
Development Office program. . . . This insistence conflicts with YLS's NDP, which requires all 
recruit employers to sign a non-discrimination statement."

The student-members of SAME alleged that they, along with many other students, chose YLS 
because of its non-discrimination policy and message. They contended that the DoD's 
interpretation of the Solomon Amendment as applied to YLS is unreasonable; that it violates 
their First Amendment right to be part of an association that rejects the message of 
discrimination, forces them to adopt a message of discrimination, and prevents them from 
receiving a message of non-discrimination that, but for the DoD, YLS would send. The students 
also argued that enforcement of the Solomon Amendment is impermissible viewpoint 
discrimination because it penalizes only those students who attend law schools that seek to apply 
otherwise generally applicable non-discrimination policies to military recruiters. Thus, the 
Solomon Amendment, as applied to YLS, violates their Fifth Amendment equal protection 
rights.



Judge Hall recited the requirements for standing as enunciated by the Supreme Court in _Raines 
v. Byrd_, 521 U.S. 811 (1997): (1) an injury in fact; (2) caused by the conduct complained of; 
and (3) that such injury is likely to be redressed by a favorable judicial decision. The court found 
that the faculty members had met the requirement for each of these elements, whereas the student 
plaintiffs met all the elements for some of their grievances, but not all.

For there to be an injury, the plaintiff must allege a personal stake in the outcome of the 
controversy, to make sure that the plaintiffs suffer adversity so as to sharpen the presentation of 
issues, thereby illuminating for the court difficult constitutional issues. The court found that the 
faculty members have such a stake. Their complaint alleged they were compelled to suspend their 
NDP because of threats leveled at their institution by the Department of Defense, in violation of 
the faculty's rights to freedom of speech and association. The DoD would force them to 
participate in inflicting discrimination on those certain students. These alleged injuries, stated the 
judge, are of a sufficiently concrete and personal nature to give the plaintiffs standing to pursue 
this action.

The faculty members further alleged that their enactment of the NDP, and their decision to apply 
it to all aspects of law school life, including the recruitment process, was protected speech. They 
alleged that the Solomon Amendment, the DoD's regulations, and the application of those 
regulations against Yale and YLS, had forced them to choose between the exercise of their 
constitutional rights and federal funding for themselves, YLS, and Yale University. The court 
found that these allegations set forth a cognizable First Amendment injury.

The faculty members presented a due process claim by contending that the Solomon 
Amendment, by requiring them to allow an employer on campus that discriminates against their 
students, violates the special relationship between student and teacher. The Supreme Court has 
recognized, stated Judge Hall, that the Fifth Amendment at times protects the teacher-student 
relationship, citing _Meyer v. Nebraska_, 262 U.S. 390 (1923). The plaintiffs are teachers; and 
they have articulated a right that has been found to be cognizable. As a result, the Fifth 
Amendment can be understood to grant them a right to judicial relief.

The District Court further held that the cause of the alleged abridgment of the faculty members' 
constitutional rights was the Solomon Amendment and the DoD's enforcement of it. Therefore, 
causation, the second prong of the 3-part rule to show standing, is met.

The judge further found that the issue is ripe for determination, meeting the third prong of the 
rule on standing. DoD points out that no final determination regarding Yale had yet been made. 
Yet, numerous letters had passed between responsible parties at YLS and DoD, and a notice of 
imminent action had been sent to YLS. 



But Judge Hall noted that the regulation itself is _final_. Under the Administrative Procedures 
Act, a party must show that the regulation has caused the plaintiff some concrete harm; in some 
cases, this may be satisfied by the promulgation of the regulation itself. Here, the regulation has 
presented the plaintiffs with an immediate dilemma, and has further been applied to them by 
some concrete action (a letter from DoD setting a deadline for resolution of Yale's non-
compliance with the Solomon Amendment). Thus, stated Judge Hall, the challenge to the 
regulation is ripe.

Judge Hall was less magnanimous in granting standing to the student plaintiffs. The students 
contended that they have a right to be part of an association that sends a particular message about 
discrimination, and that, because of the Solomon Amendment as enforced by the DoD, they are 
not only required to associate, but to effectively adopt the military's discriminatory message by 
association, unless they speak out against it. However, the students are not the proper parties to 
bring this associational claim, stated the court. The principles of the association that is YLS are 
set by the faculty and can change at any time. While the students may have chosen YLS because 
of its non-discriminatory principles, they have not alleged that they have an institutional voice in 
how those principles are set or maintained, making the plaintiffs patrons of the YLS association, 
not themselves members of the association, for purposes of the specific issue here. Therefore, 
they fail to have standing on the First Amendment association claim.

The students also argued that they have a First Amendment right to receive information, 
including the law school's non-discrimination message. Judge Hall cited ample precedents to 
come to her holding that the students have standing to pursue this claim, denying the DoD's 
motion to dismiss the plaintiffs' right to receive information and ideas.

The students also contended that the DoD impermissibly discriminated against them because they 
had chosen to be part of an association that rejects discrimination against gays and lesbians. The 
court held that while a claim of "viewpoint discrimination" is cognizable, the students are not the 
proper parties to assert it because the viewpoint being suppressed is that of the law school 
faculty. The mere fact that they agree with the law faculty's viewpoint does not make their own 
viewpoint the target of the discrimination. The viewpoint discrimination claim is thus dismissed.

Regarding equal protection, the students alleged that they have been subjected to the unique and 
personal harm of exclusion from participation in an official law school program, branded as 
second-class citizens, and marked with a stigma that the Supreme Court recognized as 
illegitimate in _Lawrence v. Texas_, 539 U.S. 558 (2003). While the court found this claim to be 
dubious in light of the fact that the military's "Don't Ask Don't Tell" policy has been found to be 
constitutional (albeit only in decisons rendered prior to _Lawrence_), Judge Hall statee that a 
court must be cautious not to confuse the merits of a claim with the plaintiff's standing to assert 
it. Therefore, the court held that the students have standing to pursue their equal protection claim. 

The court also held that the students' complaint meets the causation element, in that their injury 
was fairly traceable to the DoD's policy because it produced a coercive effect on the action of 
others. The claim was also ripe in the same manner as the faculty's cause is ripe for judicial 
determination. 

Therefore, as to the students, the DoD's motion to dismiss for lack of standing is granted as to 
the associational and viewpoint discrimination claims, and denied as to the right to receive ideas 
and information and the equal protection claims.



The battle against the Solomon Amendment may now be fought on its merits. _Alan J. Jacobs_

Insurance Agents Assurance of Coverage Insufficient to Sustain Claim by Gay Partner Under 
Homeowner's Policy; Alternative Claims Allowed

A gay male domestic partner who was not specifically mentioned in the homeowner's insurance 
policy that he and his partner purchased could not maintain an action on the policy for personal 
injuries, but could pursue a negligence claim against the insurer, according to a June 28 ruling by 
U.S. District Judge Jerry Buchmeyer (N.D.Tex.), ruling on the insurer's motion for summary 
judgment in _Walker v. State Farm Lloyd's_, 2004 WL 1462200.

David Walker and Edward Blount, domestic partners in Dallas, have been living together since 
1991.  They purchased residential property coverage for their home through a State Farm agent 
for coverage beginning in 1995 and renewed since then from year to year.  According to 
Walker's complaint, the agent told them that they would both be covered under the policy, but 
the actual written policy that was issued to them names only Blount, with the usual boilerplate 
language extending coverage to spouse and minor children of the named insured.  They pooled 
their finances, so Walker was contributing to the payment of the insurance premiums from year 
to year.  

In 1999, they reported a water condition to the insurer, which inspected and had some mold 
removed from the bathroom, but Walker claims the inspection and work was not properly done, 
mold condition remained elsewhere in the building, and eventually he suffered sinusitis and 
respiratory problems.  When the men complained about continued problems in the house, State 
Farm "reopened" the case and paid for the men to stay at a hotel while remediation work was 
being done, but State Farm denied Walker's claim under the insurance policy for his injuries, 
asserting that he was not covered under the policy. 

Walker brought a diversity action in the federal court, Texas law governing, claiming breach of 
contract, breach of duty of good faith and fair dealing, negligence, and violation of Article 21.21 
of the Texas Insurance Code, which concerns unfair settlement practice on claims.  The insurer 
moved for summary judgment.

Judge Buchmeyer found that none of Walker's theories for breach of contract were viable.  
Turning first to the written instrument, Buchmeyer found it clear on the face of the instrument 
that only Blount was a named insured, and that Walker would not qualify as a "spouse" under 
Texas law.   "The contract nowhere grants Walker status as policyholder or insured, and Walker 
fails to point out any provisions within the policy itself suggesting that he has status as a party to 
the contract.  Absent privity, Walker lacks standing to sue directly as a party to the contract."



Walker advanced four alternative theories for coverage.  First, he argued promissory estoppel, 
premised on the representation by the insurance agent that the policy would cover both men.  
While Texas courts have recognized the promissory estoppel theory for construing service 
contracts, Buchmeyer found that "the parol evidence rule bars the introduction of evidence of 
promissory estoppel." In this case, the agent's representations would constitute extrinsic evidence 
presented for the purpose of varying or adding to the terms of an unambiguous written 
agreement. "Because the Policy was reduced to a single unambiguous writing, the parol evidence 
rule operates to exclude extrinsic evidence - such as the State Farm agent's representations - 
from consideration," wrote Buchmeyer.

Next, Walker argued that he should be treated as a third-party beneficiary of the insurance 
contract, since he lived in the premises that were being insured.   Buchmeyer found that under 
Texas law, to claim such status, "a claimant must show that the contract was entered into directly 
and primarily for his benefit," usually evidenced by being mentioned in the contract itself.  But 
Walker was not mentioned in the contract. "To successfully advance a third-party beneficiary 
claim, Walker could have had the insured procure an endorsement adding his name to the Policy 
as an additional insured. . .  As no such language appears in the written contract, Walker's third-
party beneficiary claim fails."

Then Walker tried to argue that State Farm had ratified its agent's representations by addressing 
mail jointly to himself and Blount when corresponding about their water damage claims.  
Buchmeyer found that under Texas law, ratification depends on a party performing a voluntary, 
intentional act that is inconsistent with an intention to avoid the alleged agreement.  In this case, 
he found nothing inconsistent in the actions of State Farm. "Mere correspondence with or about 
someone associated with a dispute is not tantamount to recognizing the validity of the alleged 
agreement 'by acting or performing under the contract or by otherwise affirmatively 
acknowledging it.'" Although it isn't specifically mentioned in this part of the opinion, 
Buchmeyer evidently didn't see State Farm's willingness to pay for hotel accommodations for 
Walker during the period of dispossession as a ratification or some form of admission of 
coverage.

Finally, Walker argued that State Farm should be required to cover his injuries as a matter of 
public policy, because failure to do so would be discriminatory in light of Texas's refusal to 
extend any legal family status to same-sex partners.  Buchmeyer found that Walker's argument 
"seems to ignore the possibility that Blount could have procured an endorsement placing Walker 
within the scope of coverage." Furthermore, Walker could have sued Blount, his partner, for his 
injuries, and then Blount could have called upon the insurer to defend the case, thus indirectly 
covering Walker's claim. "But an adversarial lawsuit... would pit the interests of Blount and 
Walker against each other even though each wants to keep them aligned," Buchmeyer noted. 
"This unhappy result seems to be required by the law as it currently stands.  While Walker 
understandably challenges the Policy on public policy grounds, it nonetheless comports with this 
state's public policy as it relates to same-sex unions."



With the fall of the breach of contract claim, the bad faith claim was also untenable, since any 
duty to act in good faith would have to arise out of the insurance contract, and Buchmeyer had 
found that the insurance contract did not create any contractual duty running from State Farm to 
Walker.  However, the negligence claim was a different story.  Buchmeyer found that Walker's 
factual allegations were sufficient to create a triable issue on the question whether State Farm had 
breached its duty to perform under the contract using reasonable care not to injure persons or 
property, "and one who is not privy to the contract may assert a negligence claim for breach of 
that duty." Having found that Walker had also presented sufficient medical evidence in a doctor's 
affidavit to create a factual issue about causation as well, Buchmeyer refused to grant summary 
judgement on the negligence claim

As to the statutory claim, Buchmeyer found that Walker's allegations were sufficient to create an 
issue as to whether he had detrimentally relied on the representations of State Farm's agent, by 
failing to secure an endorsement adding him as a named insured to the policy, and this could 
sustain a cause of action under section 21.21.  Consequently, Buchmeyer refused to grant 
summary judgment on this claim as well.

The rulings on the breach of contract claims provide yet another illustration of the way denial of 
the right to marry disadvantages same-sex couples, in this case putting the burden on them to 
confirm the verbal promise of an insurance agent by scrutinizing the resulting contract to make 
sure that both partners are covered, and then taking steps to add the uninsured partner to the 
policy if the writing does not conform with the verbal promise.  

[For gay legal history buffs, it is worth noting that Judge Buchmeyer was the author of a 
magnificent opinion in _Baker v. Wade_, 553 F. Supp. 1121 (N.D. Tex. 1982), holding the Texas 
sodomy law unconstitutional more than twenty years before _Lawrence v. Texas_ came along, 
only to suffer reversal in the 5th Circuit.]  A.S.L.

Gay Texan's Indecent Exposure Conviction Upheld

In a case that has all the earmarks of entrapment, the Forth Worth division of the Texas Court of 
Appeals rejected Vann Dean Elkin's appeal of the jury verdict in an indecent exposure case 
involve a plainclothes police officer in a Tarrant County public park.  The unanimous per curiam 
ruling in _Elkin v. State_, 2004 WL 1472624 (not reported in S.W.2d) was issued on July 1.  
Elkin and the plainclothes officer, Jerry Sillers, presented rather different stories to the jury.  It is 
undisputed, however, that Elkin "exposed his penis" to Sillers "in a public park," according to 
the unsigned opinion by the court.

According to Elkin, he had completed a three-mile walk around Lake Benbrook when he was 
accosted by Sillers, who flattered him with sexual advances, but Elkin refused to have sex in the 
park.  Instead, Elkin testified that he gave Sillers his card and invited him to come back to 
Elkin's house, then turned away to get into his truck parked nearby.  But, said Elkin, Sillers 
"continued to move closer, urging [Elkin] to show Sillers his 'd-.'" Elkin testified that he was 
taking medication for impotence which require frequent urination, and at that point he was hit by 
the need, so "he pulled out his penis, said, 'Excuse me, but I've got to urinate,' turned away from 
Sillers, and urinated."  Sillers then arrested him for indecent exposure.



Or at least, that was Elkin's story.  Sillers testified to a more detailed conversation during which 
Elkin showed interest in fooling around with Sillers.  According to Sillers, he asked Elkin if he 
was a cop, and Elkin replied, "Hell, no.  I've been in trouble with the law before in a park just 
like this and it took about $3,000 to get me out of trouble.  So I was arrested in Waco by a park 
ranger... Right when I went down on the guy, he busted me."  Sillers testified that Elkin gave him 
a card and "insisted" that Sillers stop by Elkin's house.  Siller testified that he then asked if Elkin 
would let him "see what I would be messing around with," and that Elkin then unzipped his 
pants, pulled out a partially erect penis which he stroked fully erect, and said, "It will grow a little 
more, don't worry."  Clearly, both men had been watching too much gay porn.  Who writes this 
dialogue?

At any rate, the jury apparently believed Sillers rather than Elkin on the ultimate motivation for 
unzipping, undoubtedly influenced by the statement that he had been previously arrested for 
public sex.  This was the main point Elkin argued on appeal, that it was unfairly prejudicial to 
allow the testimony about his prior offense, since the issue was his motivation on this occasion, 
and the jury might have presumed without proof that his motivation on this occasion was the 
same as in the past incident.  But the court of appeals agreed with the state that the past offense 
was relevant to that key question of motivation, since it tended to reinforce Sillers' testimony that 
Elkin pulled out his penis for the purpose of encouraging Sillers to pay him an amorous visit at 
home, and not for the purpose of urination.  The court also rejected Elkin's contention that he 
had received ineffective legal representation, or that the evidence present was insufficient to 
support the jury's verdict.

The opinion makes no mention of any argument about entrapment, even though both versions of 
what happened indicate that Sillers initiated contact with Elkin, effectively solicited him to have 
sex, and specifically suggested that Elkin pull out his penis for Sillers' inspection.  Sillers seems 
to have been following the standard operating procedure for entrapping gay men in public 
cruising situations.  The court's opinion does not mention what penalty was imposed on Elkin.  
A.S.L.

California Appeals Court Rejects Libel Claim Arising From Lesbian Custody Dispute

The California Court of Appeal, 4th District, has thrown out a libel lawsuit brought against the 
infamous Sharon S. by her former partner, Annette F. _Annette F. v. Sharon S._, 2004 WL 
1433945 (June 28, 2004).  These women originally gained public notoriety as the couple whose 
ugly breakup and custody litigation placed second-parent adoptions throughout the state in 
jeopardy. _Sharon S. v. Superior Court_, 31 Cal. 4th 417 (2003).  The court dismissed Annette's 
libel complaint on the grounds that allegedly defamatory statements made by Sharon were 
protected by the state's anti-SLAPP statute, and that Annette could not prove that Sharon had 
made false statements with the requisite level of malice to justify a finding of liability.

Sharon received significant negative publicity, particularly from the gay and lesbian media, as a 
result of her attempts to nullify Annette's second-parent adoption of the children they had raised 
together as a couple.   While the litigation was working its way through the California courts, 
Sharon wrote a letter to the Lesbian and Gay Community Center of San Diego and to the _Gay 
and Lesbian Times_ of San Diego, in which she defended her position in the litigation.  
Specifically, she called Annette "a convicted perpetrator of domestic violence" and claimed that 
Annette had "made repeated false accusations of child abuse and neglect" against her.  In 
September 2002, Annette filed a libel action against Sharon, claiming that these statements were 
false and defamatory.


Sharon filed a special motion to strike the complaint under California's anti-SLAPP statute, a 
provision that was enacted in 1992 for the purpose of providing an efficient procedural 
mechanism for the early and inexpensive dismissal of non-meritorious claims "arising from any 
act" of the defendant "in furtherance of the person's right of petition or free speech under the 
United States or California Constitution in connection with a public issue . . ."  When 
determining whether to dismiss a complaint under the anti-SLAPP statute, a court must first 
determine whether the speech at issue is protected under the statute, and must then assess 
whether the plaintiff is likely to succeed on the merits of his/her claim.  In this case, the trial 
court determined that Sharon's speech was protected under the statute, but refused to strike the 
complaint on the grounds that Annette had demonstrated a probability of success on the merits of 
her libel claim.  Sharon appealed.

The Court of Appeal, in an opinion written by Associate Justice Cynthia Aaron, agreed that 
Sharon's letters were speech regarding a matter of significant public concern, as they pertained to 
the custody dispute under consideration by the California courts.  Sharon's statements about 
Annette's history as a perpetrator of domestic violence and Annette's accusations of abuse and 
neglect were some of the facts directly at issue in the underlying adoption proceedings.  Sharon 
had claimed that her consent to the second-parent adoption of their first child was the result of 
fraud or undue influence resulting from Annette's acts of domestic violence against her.  
Similarly, Annette's allegations of abuse and neglect were also relevant to the parties' competing 
claims as to the best interests of their children.

But the Court of Appeal disagreed with the trial court on the proper standard for assessing 
Annette's likelihood of prevailing on the underlying libel claim.  In the court's view, Annette's 
involvement in a highly publicized court battle over custody of their children made her a "limited 
purpose public figure."  As a result, in order to succeed on her claims, Annette would have to 
demonstrate by clear and convincing evidence that Sharon made false statements with actual 
malice.

As to the charge that Sharon defamed Annette by stating that Annette was a "convicted 
perpetrator of domestic violence," the court observed that the statement was inaccurate in that 
Annette had not been "convicted" of a crime.  The court noted, however, that Sharon had 
successfully petitioned for a temporary restraining order against Annette in December 2000, and 
that during this hearing, the court found that there was reasonable proof of past acts of abuse by 
Annette against Sharon.  Because the word "convict" can also simply mean blameworthy, the 
court found that Sharon's statement was not sufficiently erroneous to trigger liability.  As Judge 
Aaron explained, "Sharon's explanation that she innocently use the term 'convicted' to refer to a 
non-criminal adjudication of domestic violence by the family court [was] not so implausible as to 
support an inference of actual malice."  The court recognized that Sharon felt angry at Annette 
and was stunned by the amount of hostility directed at her because of their legal dispute.  It also 
acknowledged that Sharon did not utter the allegedly defamatory statements in the heat of 
argument, and "had ample opportunity to check the accuracy of the statements," but did not do 
so.  Nevertheless, these facts alone did not rise to the level of actual malice.



Similarly, with respect to Sharon's statements that Annette had made "repeated false accusations 
of child abuse and neglect," the court found that Annette would not be able to prove actual 
malice.  Annette had leveled accusations of abuse and neglect against Sharon in connection with 
the underlying custody dispute.  But all of the individuals with whom Annette raised these issues 
- namely, their son's attorney, his pediatrician and his psychologist - found the charges to be 
unfounded.  The court also noted that Annette did not provide any additional information to 
substantiate her allegations.  Consequently, in the court's view, Annette was unlikely to succeed 
on the libel claim pertaining to this statement as well.

Based on these determinations, the Court of Appeal remanded the case with instructions to grant 
Sharon's motion to strike and to enter judgment in her favor.  The court also awarded Sharon her 
costs on appeal.  Acting Presiding Justice Judith Haller and Justice Alex McDonald joined the 
opinion. _Sharon McGowan_

Wrongly Calling Somebody Gay May Not Be Defamatory

In the first such case to be decided since the U.S. Supreme Court invalidated laws against 
consensual gay sex last year, Judge Nancy Gertner of the United State District Court in Boston, 
Massachusetts, has ruled that it is not automatically defamatory to falsely call somebody gay.  
Ruling on a motion to dismiss defamation and related claims in _Albright v. Morton_, 2004 WL 
1240900 (May 28, 2004), a case brought by James Albright, a former bodyguard and lover of the 
singer-actress-author Madonna, Judge Gertner wrote that it would be "outrageous" to adopt the 
plaintiff's arguments.  And, just a few days later, U.S. District Judge Charles Haight (S.D.N.Y.), 
ruling in _Lewittes v. Cohen_, NYLJ, 6/4/2004, another defamation case involving falsely 
calling somebody gay, found that the claim was filed too late, but suggested that if it had been 
timely, there still would be some question whether calling somebody gay could be considered 
defamatory today.

Albright worked as a bodyguard for Madonna for six months in 1992, and subsequently had a 
brief affair with her.  Several years later, Albright was approached by Michael O'Mara Books, 
which was developing a book proposal about Madonna, and he agreed to be interviewed.  In the 
book, published in 2001 by St. Martin's Press, as well as in a book excerpt published by Time, 
Inc. in _People_, a photograph showing Madonna with her openly-gay bodyguard, Jose 
Guitierez, was incorrectly captioned to indicate that Albright was Guitierez.  Albright claimed 
that the mislabeled caption would lead readers wrongly to conclude that he was gay, and sought 
damages for defamation, invasion of privacy, improper commercial appropriation of his image, 
negligent infliction of emotional distress and intentional infliction of emotional distress.



Gertner found it implausible that anybody viewing the book or the magazine article would 
conclude that Albright was gay.  For one thing, the caption did not state that the man who was 
pictured next to Madonna was gay.  Far from it, in fact, as the caption in the book indicated that 
the pictured man, identified as Albright, had told the author that he felt "overwhelming love" for 
Madonna, and the magazine article caption went further to identify Albright as Madonna's 
"secret lover."  Thus, Gertner concluded, it was doubtful that any reader would question 
Albright's heterosexuality, even if the reader happened to know that the man in the picture was 
gay.  (Gertner noted that the man in the picture was wearing a black leather jacket, tinted glasses, 
a string neckless with a pendant, and an earring, but wrote, "Nothing in the photograph suggests 
that he is gay." Most like metrosexual?)

Despite this ruling, Gertner decided to use this decision as an opportunity to strike one more 
blow for gay equality, so she went on to address the question whether it would be defamatory if a 
reader of the book or magazine could draw the conclusion that Albright is gay. "Looking at any 
'considerable and respectable class in the community' in this day and age," she wrote, "I cannot 
conclude that identifying someone as a homosexual discredits him, that the statement fits within 
the category of defamation per se."

The common law rule in most jurisdictions has long been that a false imputation that somebody 
is gay is defamatory _per se_, mainly because it carried the implication that the individual 
engaged in criminal sexual activity, but some courts have continued to consider such statements 
to be defamatory _per se_ even after the repeal of their state's sodomy laws, on the grounds that 
public opinion still regards homosexuality as a stigma on an individual's reputation in society.  

"While courts outside this jurisdiction are split on whether a statement wrongfully identifying 
someone as homosexual is defamatory per se," wrote Gertner, "their decisions rely on statutes 
criminalizing same-sex sexual acts (statutes which may well be unconstitutional), and fail to 
incorporate more recent decisions recognizing homosexuals' equal rights."  Amazingly, 
Albright's lawyers cited the Massachusetts sodomy law in support of their claim, even though the 
Supreme Judicial Court of Massachusetts had recently ruled that it was inapplicable to private, 
consensual gay sex.  Of course, since Albright filed his claim, the U.S. Supreme Court has struck 
down all sodomy laws, and the Massachusetts court has twice ruled in favor of same-sex 
marriage.

Under these circumstances, Gertner found it difficult to credit the argument that a person could 
be presumed to have suffered a reputational loss from a false statement that they are gay. "I reject 
the offensive implication of plaintiffs' argument that, even without the implicit accusation of a 
crime, portions of the community 'feel [homosexuals] are less reputable than heterosexuals,' as 
plaintiffs allege in this Complaint. . .  If this Court were to agree that calling someone a 
homosexual is defamatory per se - it would, in effect, validate that sentiment and legitimize 
relegating homosexuals to second-class status."  Gertner compared this case to one in which a 
Caucasian claims to have been defamed by being wrongly labeled as African-American.  
Although such a case would have been treated as _per se_ defamatory perhaps fifty years ago, it 
would be laughed out of court today.

"What has not changed in the case law is the conclusion that the category 'defamatory per se' 
should be reserved for statements linking an individual to the category of persons 'deserving of 
social disapprobation' like a 'thief, murderer, prostitute, etc.,'" wrote Gertner, quoting a 
Colorado appellate decision from 1991. <!69>To suggest that homosexuals should be put into 
this classification is nothing short of outrageous."



An alternative argument for Albright would have been to show that he suffered actual economic 
injury as a result of the publication, but he had not made any specific allegation to this effect, and 
Judge Gertner would probably have questioned the credibility of such an assertion in any event, 
in light of her rejection of Albright's claim that a reader of the book or article could wrongly 
conclude that he was gay as a result of the erroneous name in the caption.  Having rejected the 
defamation claim, Gertner concluded that the rest of Albright's case had collapsed as well, and 
dismissed all claims against all defendants.

New York cases were among those from other states that Gertner noted in her ruling, as courts 
applying New York law have continued to apply the old precedents treating a false imputation of 
homosexuality as automatically defamatory.  But in his opinion published on June 4 in the _New 
York Law Journal_, Judge Haight suggested that may no longer be the case. Plaintiff Michael 
Lewittes is a journalist and editor, whose brother was going through a divorce from Marilyn 
Blume.  According to Lewittes's complaint, Blume got her brother, Joshua Cohen, to put up a 
website containing her divorce papers.  The website also included some textual description of 
Blume's disputes with David Lewittes, and stated, "the story will be told," accompanied by a 
statement in smaller print, "ask the doorman . . . and that closeted editor of a certain paper."  
Michael Lewittes claimed that the reference was to him, and that he is not gay.  In addition to a 
variety of other claims, he sought damages for defamation.
Judge Haight found that the time for Lewittes to file his legal claim began to run when the 
statement appeared on the website.  A defamation claim can be asserted for a period of one year 
after a defamatory statement is made, but Lewittes first asserted his claim more than one year 
later, so Haight granted the motion to dismiss that claim as untimely.  But, in a footnote, he 
commented briefly on the merits of the claim.

After finding that the text on the website referring to "that closeted editor of a certain paper . . .  
certainly passes this threshold test insofar as it may reasonably be found to imply that plaintiff is 
gay," Haight observed, "It does not necessarily follow from this, however, that an implication of 
homosexuality is defamatory."  After listing prior court rulings applying the _per se_ defamation 
rule, Haight stated, "Given welcome shifts in social perceptions of homosexuality, however, 
there is good reason to question the reliability of these precedents," and then listed several law 
journal articles that argue that calling a person gay should no longer be considered defamatory.

Two federal judges in the space of a week may not exactly be a stampede, but certainly this is 
evidence of a trend in the law reflecting the changed public attitude springing from _Lawrence v. 
Texas_ and the recent surge in same-sex marriage activity.  A.S.L.

Massachusetts Marriage Developments



 _Federal Appeals Ruling_ - Rejecting a last-ditch attempt by opponents to put a stop to same-
sex marriages in Massachusetts, a unanimous 1st Circuit Court of Appeals panel in Boston ruled 
on June 29 in _Largess v. Supreme Judicial Court for the State of Massachusetts_, 2004 WL 
1453033, that the state's highest court did not violate the federal constitution when it ruled that 
Massachusetts must let same-sex partners get married. The panel, consisting of Chief Circuit 
Judge Michael Boudin and Circuit Judges Sandra Lynch and Jeffrey Howard, affirmed a recent 
ruling by District Judge Joseph Tauro, rejecting the argument that the _Goodridge_ decision 
violates the federal constitutional guarantee that each state shall have a "republican form of 
government."   The three appeals judges issued a _per curiam_ opinion.

The lawsuit had been brought by a group of state legislators, who argued that only the political 
branches of the government - the legislator and the governor - could decide who is entitled to 
marry, since that is a political public policy issue.  They argued that by dictating a particular 
result, the state's highest court had usurped legislative functions in a ruling inconsistent with the 
notion of a republican government, in which the people's elected representatives make the law.
But they ran up against more than two centuries of a broad, tolerant approach by the U.S. 
Supreme Court on the question whether particular variations in the structure and composition of 
state governments might be said to violate the so-called "Guarantee Clause." The constitution 
itself sheds no light on the scope or meaning of that clause, and John Adams had written to a 
correspondent that neither he nor anyone else knew exactly what it meant, thus leaving the Court 
free to adopt an expansive view and accommodate the wide variety of state governmental 
structures, which differ markedly from state to state in the allocation of legislative, executive and 
judicial authority.

The plaintiffs had also relied on their reading of the Massachusetts Constitution, which they say 
the high state court had violated.  However, the Mass. SJC had already rejected that argument, 
and under the federal system the highest court of a state has the last word on the meaning of the 
state's constitution.  Although Judge Tauro had voiced some agreement with the Massachusetts 
high court's ruling on that score, the court of appeals basically said that it would take a hands-off 
approach to any question of interpreting the Massachusetts Constitution.  Instead, the court relied 
on past U.S. Supreme Court decisions that effectively added up to a very undemanding view of 
what constitutes a republican form of government.  In essence, if the structure of state 
government was established by the people of the state through an appropriate constitution-
making process, and the people retained the ultimate authority to change laws with which they 
disagree through a constitutional amendment process, the federal courts are unlikely to step in, 
except for the unlikely event that the people of a state try to set up a monarchy or a dictatorship 
rather than a system in which their chief executive and legislators are elected by the public.  

The plaintiffs had argued that the time-consuming amendment procedures, under which a 
proposed state amendment against marriage cannot come before the general public for a vote 
until the fall of 2006, meant that the court had been free to "legislate" without any immediate 
danger of being checked by the popular will.  But representative government does not necessarily 
mean that the legislature has to have the first, decisive word on every matter of public policy, 
otherwise the courts could not function to decide any case that raised questions not directly 
addressed by an explicit statutory provision.  As a practical matter, pure "republicanism" is not 
required by the federal constitution.  And, after all, the people of Massachusetts had 
democratically approved a constitution that established this prolonged amendment process.  Of 
course, the opponents of same-sex marriage vowed to seek U.S. Supreme Court review, which 
seems highly unlikely to be granted.  



_Challenge to Section 11_ - On June 18, two lawsuits were filed against state officials in an 
attempt to gain a judicial resolution of the question whether out-of-state same-sex couples can 
marry in Massachusetts.  One of the suits was brought on behalf of twelve city and town clerks, 
asserting that they should be able to issue valid marriage licenses to such couples. The other, 
brought on behalf of eight non-resident same-sex couples, five of whom married before the 
Governor and Attorney General bullied local officials into compliance and three of whom 
applied but were turned away, was filed by Gay & Lesbian Advocates & Defenders (GLAD) in 
Suffolk Superior Court in Boston, under the name _Cote-Whitacre v. Department of Public 
Health_, asserting that the state is misinterpreting Section 11, which is, in any event, a statute 
that must be construed in light of _Goodridge v. Department of Public Health_, 440 Mass. 309 
(2003) (holding same-sex couples are constitutionally entitled to equal access to marriage), and 
that its actions violate not only state constitutional requirements of equality and due process but 
also the plaintiffs' federal constitutional rights under the Privileges and Immunities Clause of the 
14th Amendment, which has been interpreted in a variety of circumstances to block states from 
affording differential treatment as between residents and non-residents.  

_Attleboro & Fall River_ - After Attorney General Thomas Reilly wrote to the municipalities 
that had indicated they would issue licenses to same-sex partners from out-of-state, all of the four 
eventually fell into line and ceased issuing such licenses, at least temporarily.  (See 
Provincetown, below.)  But the Associated Press reported on May 25 that two other city clerks, 
in Attleboro and Fall River, had issued such licenses without any advance announcement or 
fanfare, and briefly continued doing so.

_Provincetown_ - On May 25, the Provincetown selectmen voted temporarily to suspend issuing 
marriage licenses to same-sex couples from out of state, in accordance with a warning letter that 
had been received from Attorney General Thomas Reilly that such licenses would violate an old 
Massachusetts statute that forbids issuing licenses to out-of-state couples whose marriages would 
be voice in their jurisdictions of residence.  Although the Chair of the Board of Selectmen, Dr. 
Cheryl Andrews, reiterated the council's belief that it is "unlawful and unconstitutional to deny 
out-of-state same-sex couples the right to marry in Massachusetts," they were not willing to defy 
the state government on this issue. _365Gay.com_, May 26.

_Numbers_ - According to a survey undertaken by the _Boston Globe_ and published on June 
17, about 2500 same-sex couples applied for marriage licenses in Massachusetts during the first 
week after the _Goodridge_ decision went into effect on May 17.  During that first week, 
Cambridge received 310 applications, followed by Provincetown with 225, but even small towns 
in out-of-the-way locations received the applications.  The survey found that 265 different 
communities in the state received applications.  At least 164 applications came from out-of-state 
couples, mainly from New York and surrounding New England states.  A.S.L.

New Paltz, NY, Mayor Ordered to Perform No More Same-Sex Couple Marriages, But Criminal 
Charges Against Him Dismissed by Court on Grounds of Unconstitutionality



E. Michael Kavanagh, a New York State Supreme Court Justice in Ulster County, issued a 
permanent injunction ordering New Paltz Mayor Jason West to desist from performing marriages 
between same-sex couples. _Habel v. West_.   Kavanagh's June 7 order made permanent a 
temporary order that had been issued several months ago after Liberty Counsel, a right-wing 
litigation group, filed a lawsuit on behalf of Robert Habel, a dissenting member of the New Paltz 
Board of Trustees.  But just three days later, Town of New Paltz Justice Court Judge Jonathan D. 
Katz issue his ruling in _People v. West_, 2004 WL 1433528 (New Paltz, N.Y., Justice Ct., June 
10), finding that the state had failed to rebut West's claim that the marriage law's exclusion of 
same-sex couples violates the state and federal constitution, and thus that misdemeanor charges 
that had been brought against West for performing same-sex marriages for couples who did not 
have New York marriage licenses should be dismissed.  (On June 24, Liberty Counsel filed a 
new lawsuit, seeking to bar other New Paltz officials from performing the weddings, and Judge 
Kavanagh set a July 19 court date for a hearing on their request for relief.)

Justice Kavanagh issued a narrowly-focused opinion that took no position on any issue other than 
whether Mayor West had the authority to perform marriages for same-sex couples (or any other 
couples) who had not obtained a valid New York State marriage license.  Kavanagh said nothing 
in his opinion about whether the marriages that West performed were valid, whether West was 
guilty of the criminal charges filed against him, or even whether the refusal of the New Paltz 
town clerk to issue licenses to same-sex couples violates either the state's marriage laws or the 
constitutional rights of the applicants.

Instead, Kavanagh focused narrowly on whether West is entitled to ignore the statutory 
requirement of a marriage license based on his view that same-sex couples have a constitutional 
right to marry.  Conceding that the refusal of licenses to same-sex couples "may violate those 
constitutional provisions that guarantee to all equal protection of the laws," Kavanagh insisted 
that "the decision to issue a marriage license in this State is not one for the Mayor to make; that 
duty by State law belongs to the Town Clerk."  Indeed, Kavanagh's decision even appears to 
suggest that had the clerk decided to issue the license, West could have gone ahead and 
performed the marriages.

Without getting into the merits of the clerk's decision, Kavanagh did note that the refusal of the 
licenses was consistent with Attorney General Eliot Spitzer's informal opinion rendered on 
March 3, concluding that the current New York marriage law does not allow for same-sex 
marriages.  Spitzer has since expanded on that opinion in his defense of affirmative lawsuits that 
were subsequently filed by Lambda Legal and the ACLU.  While taking the political position that 
same-sex couples should be allowed to marry as a matter of public policy, Spitzer is arguing that 
neither the federal nor state constitutions compel that result.

Finding a "clear violation of the Domestic Relations Law," which specifically provides that 
certain public officials, such as mayors, are authorized to perform weddings for couples who 
have obtained marriage licenses, Kavanagh concluded that West's attempt to characterize his 
action as "civil disobedience" had "profound and unsettling implications," because it could lead 
to widespread lawlessness by public officials.  (Perhaps a copy of the decision should be sent to 
Alberto Gonzalez, George W. Bush's chief legal counsel, who wrote the opinion that the United 
States does not have to honor its international treaty obligations concerning treatment of 
prisoners, without consulting any U.S. or international legal body, since one could argue that the 
federal administration is theoretically doing the same thing on a large scale that West was doing 
on a tiny scale in New Paltz!)



Kavanagh concluded that West is "by his office . . . obligated to comply with the law and abide 
by it.  A public officer may not question the constitutionality of a statute and refuse to comply 
with its provisions.  Indeed, the Mayor, as a town official, cannot challenge the constitutionality 
of a statute relating to his governmental powers and duties."  Kavanagh's comment must be read 
in context, for certainly West could challenge the constitutionality of the statute by bringing a 
lawsuit.  Kavanagh undoubtedly meant to say that West's doubts about the constitutionality of 
the marriage restriction did not provide West with authority to ignore the clear requirement in the 
Domestic Relations Law that couples obtain licenses before mayors perform civil marriage 
ceremonies for them.  

West's attorney, E. Joshua Rosenkranz of Heller Ehrman White & McAuliffe, a law firm that has 
donated significant time to gay rights causes, released a statement disagreeing with Kavanagh's 
narrow characterization of the issues presented by the case. "The only reason any couple in this 
case was denied a marriage license was because they were of the same sex, and the only reason 
Mayor West acted was because the denial is unconstitutional."  Rosenkranz said that West would 
appeal.

In the criminal prosecution, Judge Katz took on the substantive issue that Justice Kavanagh had 
avoided.  For the first time, a New York trial judge ruled that the state's domestic relations law 
violates both the federal and state constitutions by denying same-sex couples the right to marry.  

Mayor West's performances of marriages for same-sex couples had brought him up against 
sections 13 and 17 of the New York Domestic Relations Law, which taken together appear to 
limit the mayor's authority to perform a marriage only to couples who have obtained valid 
licenses.  West went ahead nonetheless and performed twenty-five weddings until he was 
preliminarily ordered to desist by Justice Kavanagh.

The Ulster County Prosecutor, Donald Williams, filed misdemeanor charges against West in the 
town court.  Arguing the case before Judge Katz, Williams maintained that the only relevant 
question was whether West had violated the statute, which makes it a misdemeanor for 
somebody who is authorized to perform marriages to do so for a couple that has not obtained a 
valid license.  E. Joshua Rosenkrantz, West's attorney, argued that West could not be guilty of a 
crime if the underlying marriage law was unconstitutional, and provided Katz with the 
appropriate legal arguments to challenge the constitutionality of the marriage law.   Williams did 
not respond with any arguments in support of the marriage law, and no argument was presented 
by the state attorney general's office either, although that office has responded in other recently-
filed lawsuits by defending the law.



Under the circumstances, Katz's decision took on the nature of a default judgment, although he 
did not call it that. "Town courts have jurisdiction to dismiss criminal charges on the grounds 
that the law defining the violation charged in unconstitutional," wrote Katz, finding that in light 
of West's defense argument, "the determination of the constitutionality of DRL 17 is both 
'necessary and unavoidable.'" "Cultural and political attitudes about homosexual rights and 
same-sex marriage are evolving rapidly," Judge Katz observed. "No recent act of the legislature 
suggests a policy favoring any form of discrimination against homosexuals or same-sex 
partnerships," he wrote.  Indeed, he found the opposite to be the case, noting that the legislature 
"has adopted sweeping legislation directed to discrimination against homosexuals," and that 
there have been several decisions by the state's highest court affirming gay rights in the context 
of tenant succession and co-parent adoption.  Katz also took note of the recent decision against 
St. Vincent's Hospital, holding that a surviving gay partner from a Vermon Civil Union could 
file a wrongful death action in New York, and also pointed out that Justice Kavanagh's decision 
enjoining West from performing further marriages took no position on the constitutionality of the 
Domestic Relations Law's failure to make such marriages available to same-sex couples.

Katz found that the legal question for him to answer was "whether there is a legitimate state 
purpose in prohibiting same-sex marriages."  Since neither the Ulster County Prosecutor nor the 
state Attorney General had proposed any state purpose in this case, wrote Katz, "The net effect of 
the lack of proof is that this record contains no evidence tending to show that there is a legitimate 
state interest in refusing marriage to same-sex partners. . .  If the state had a legitimate 
governmental purpose in preventing same-sex couples from marrying either the chief law 
enforcement officer of Ulster County or of the State of New York could have taken this 
opportunity to articulate it."   Thus, Katz concluded, "the defense has rebutted the presumption of 
constitutionality enjoyed by DRL 13 shifting the burden of proof on that issue to the People," and 
the prosecution had signally failed to meet that burden.

"In dismissing the Information charging the mayor with violating DRL 13, 17, I heed the 
admonishment of Justice Brandeis that 'We must be ever on our guard lest we erect our 
prejudices into legal principles.'"  

Katz is an elected judge, who does not come up for re-election again until 2006, according to 
early press reports.  County D.A. Williams announced that he would appeal the ruling.

Taking heart from the dismissal, New Paltz's deputy mayor, Rebecca Rotzler, and town trustee 
Julia Walsh, neither of whom are named in the injunction against Mayor West, announced that 
they would perform wedding ceremonies for same-sex couples, and they jointly officiated at 
ceremonies for four same-sex couples on June 17.  Said Walsh, "We will not stop until all 
Americans have equal protection under the law." _Associated Press_, June 17.  A.S.L.

Marriage & Partnership Litigation Notes



_Federal - Minnesota_ - In the June _Law Notes_ we reported on litigation filed by Jack Baker 
and Mike McConnell seeking the right to file an amended joint federal tax return and claim a 
refund, based on their Minnesota marriage of the 1970s.  Our report was based on a newspaper 
article.  We have since been contacted by Baker, an attorney, to correct some incorrect 
assumptions we made in writing the article.  The timing of their lawsuit is independent of recent 
developments in marriage law, and had rather to do with the timing of particular career goals, 
particularly for McConnell, a senior officer of the Minneapolis public library system who 
recently presided over the opening of a spectacular new library facility that is a crowning project 
of his career.  In fact, Baker says, the IRS did not cite the Defense of Marriage Act in rejecting 
the amended tax return, instead merely stating that same-sex marriages are not recognized by the 
government.  Baker and McConnell contend that the Defense of Marriage Act, which states that 
the federal government will not recognize same-sex marriages for purposes of federal law and 
was enacted in 1996, is irrelevant to their case and cannot be "retroactively" applied to invalidate 
their marriage, which was performed after they secured a license from a city clerk in Mankato, 
MN, in the wake of their unsuccessful lawsuit in the Minnesota courts, the first lawsuit seeking a 
license for a same-sex marriage.   We suspect, however, that as the case is litigated it is likely 
that the issue of DOMA, its applicability and its constitutionality may be drawn into question.

_California_ - San Francisco Superior Court Judge Richard Kramer was assigned by the State 
Judicial Council on June 11 to take charge of hearing the five different marriage lawsuits now 
pending in the trial courts of the state.  According to a June 12 report in the _San Jose Mercury 
News_, Kramer, a Republican, was appointed to bench by Governor Pete Wilson.  Meanwhile, 
the California Supreme Court was expected to rule in August on whether San Francisco had 
improperly defied state law by issuing marriage licenses back during the winter.

_Florida_ - Florida now has its third lawsuit on the issue of same-sex marriage, brought in West 
Palm Beach by two same sex couples: Sheldon Woller and Michael Nagle, and Ruth Berman and 
Connie Kurtz.  Both couples went to the county clerk's office seeking a license on June 29 and 
were turned down, then returned to the Palm Beach County Clerk's office on July 1 to file their 
lawsuit.   The other suits are a large class action filed in Broward County in February by personal 
injury lawyer Ellis Rubin, and a suit filed by six couples in Monroe County (Key West) in April 
by the National Center for Lesbian Rights and Equality Florida, which could be called the 
"official" gay legal movement lawsuit in Florida. _Palm Beach Post_, July 1. * * * According to 
a July 9 report in the _Orlando Sentinel_, Mr. Rubin intends to file more lawsuits on behalf of 
same-sex partners.  Without revealing the names of his clients, Rubin indicated he would be 
filing a lawsuit in Orlando on July 12 on behalf of a gay male couple, and on the same date in 
Tampa on behalf of two gay male couples and a lesbian couple.  Rubin said, "We're going where 
people want to get married," and indicated that he had other cases pending in several counties.    
Florida has a Defense of Marriage Act banning same-sex marriages. "Our lawsuits will claim that 
Florida's law is unconstitutional because it makes second-class citizens out of gay couples," 
Rubin told the _Sentinel_.  The anti-gay litigation group, Liberty Counsel, stated that it would 
intervene on behalf of the state in each of Rubin's cases.  Liberty Counsel's attempt to intervene 
as an "interested party" in Rubin's big Broward County class action suit was rejected by the trial 
court, but it is appealing that ruling.  Rubin, who has been practicing law for half a century, told 
the newspaper that he was willing to take these cases to the U.S. Supreme Court, asserting, "I 
don't file suits unless I think I'm going to win, based on good law and good facts."



_Maryland_ - Another state heard from. . .  On July 7, the American Civil Liberties Union filed 
suit in the Baltimore City Circuit Court seeking marriage licenses on behalf of nine same-sex 
couples resident in Maryland.  The suit alleges that exclusion of same-sex partners from the right 
to marry violates Md. Const. Art. 46's ban on sex discrimination, Art. 24's requirement of equal 
protection of the laws and due process of law as sexual orientation discrimination and/or 
deprivation of a fundamental right.  The complaint filed in the case devotes much of its attention 
to detailed biographies of the couples, showing how they have been disadvantaged, 
inconvenienced and in some cases harmed by their inability to marry.  The case is a collaborative 
effort between the ACLU Foundation of Maryland the national ACLU Lesbian and Gay Rights 
Project.  The named defendants in _Deane v. Conaway_ are the Baltimore city clerk and the 
clerks in other Maryland counties where the plaintiffs applied for licenses and were rejected.

_New Mexico_ - The New Mexico Supreme Court agreed to hear arguments stemming from 
Sandoval County Clerk Victoria Dunlap's decision to issue marriage licenses to same-sex 
couples.  A lower court issued a restraining order against Dunlap after she had issued 66 licenses. 
Then the sheriff closed her office on orders from the state attorney general.  Her lawyer appealed 
to the Supreme Court, which told the state to file a written response to Dunlap's appeal by July 6. 
  Dunlap, a Republican, was retiring as county clerk this year, and lost a bid for nomination to a 
seat on the county commission.  365Gay.com, June 23.   The Associated Press reported on July 8 
that the Supreme Court had unanimously denied Dunlap's request to lift a temporary restraining 
order that had been issued to stop her from giving out licenses pending an ultimate determination 
on the merits by the Court.  According to the AP report, the Court's action was taken without a 
written opinion.

_New York_ - Twenty-five same-sex couples from Ithaca, N.Y., have filed suit against the New 
York State Health Department seeking the right to marry.  Ithaca Mayor Carolyn Peterson 
announced that the city would join the plaintiffs in arguing for issuance of licenses, even though 
for technical reasons the city is being named as a co-defendant in the lawsuit, because the city 
clerk has taken the position that licenses cannot be issued without the authorization of the state. 
_Gay Wired_, June 3.

_New York_ - The _New York Law Journal_ reported on June 18 that two same-sex couples 
who participated in marriage ceremonies held by Unitarian Universalist Minister Sam Trumbore 
on March 27 had filed suit on June 16 in Albany County, initiating a proceeding under Article 78 
of the Civil Practice Law and Rules to compel the state health department to permit the Albany 
City clerk to issue them marriage licenses to retroactively validate their marriages.  Elissa Kane 
and Lynne Lekakis, and Robert Barnes and George Jurgsatis, are represented by Albany attorneys 
Terence L. Kindlon and Kathy Manley.  They are pointing to a provision of state law that 
suggests that marriages performed by an official authorized to perform marriages may be deemed 
valid even though the couple did not obtain a valid marriage license, but also making equal 
protection arguments as a back-up to their statutory argument.  

_North Carolina_ - Two Durham men who had planned to file a lawsuit seeking a marriage 
license after they were turned down by the county clerk have decided that the expense of 
litigation at this time is beyond them.  Since the national gay litigation groups have not been 
targeting North Carolina as a state to contest for marriage at this point, they would have to go it 
alone.  Richard Mullinax, Jr., and Perry Pike had filed a lawsuit in District Court late March after 
their license application was rejected by Durham County Commissioner of Deeds Willie L. 
Covington.  Durham County Attorney Chuck Kitchen filed a motion to dismiss on jurisdictional 
grounds, and District Court Judge Craig Brown granted the motion in May, opining that the 
matter should have been filed in the Superior Court on grounds of jurisdiction. _Durham Herald 
Sun_, June 23. 



_Ohio_ - Franklin County Common Pleas Judge Daniel Hogan ruled on May 28 that an anti-
marriage amendment that was submitted for approval prior to circulation of petitions had a 
misleading summary statement and could not be circulated.  The amendment, a variation on the 
standard wording that is being proposed in several states by voter initiative, goes beyond 
forbidding same-sex marriages by forbidding the state to create any legal status for unmarried 
individuals.  Judge Hogan found that summary misleading because, according to an Associated 
Press report on May 28, "it would be read as denying the moral validity of same-sex relationships 
while the amendment is concerned only with their legal validity.  The lawsuit seeking approval of 
the proposal was brought by Thom Rankin and Raymond Zander, of Westlake.

_Ohio_ - Cuyahoga County Common Pleas Judge Robert T. Glickman rejected a challenge filed 
by Rev. Jimmie Hicks, Jr., a Cleveland Heights councilman who was seeking to invalidate a 
domestic partnership registry ordinance that had been enacted in a popular voter initiative.  Hicks 
had argued that the city lacked authority to set up such a registry, but Glickman found that it was 
within the powers of the municipality.  Hicks vowed to appeal.   As of May 28, 85 couples had 
registered since the registry opened for business on January 26.  The measure was passed with 
55% of the vote in the gay-friendly suburb. _Associated Press_, May 28.

_Oregon_ - In _Li v. State of Oregon_, 2004 WL 1258167 (Ore., Multnomah Co. Cir. Ct., April 
20, 2004), Judge Frank Bearden had ruled that the state must accept for registration the licenses 
of same-sex couples who had been married in Multnomah County prior to the issuance of 
Bearden's order.  But the Oregon Court of Appeals granted the state a temporary stay of 
Bearden's order on June 2, just days before the deadline that Bearden had set, according to a June 
5 report in _The Oregonian_.  

_Oregon - Multnomah County_ - In _Belgarde v. Linn_, filed May 24 in Multnomah County 
Circuit Court, opponents of marriage for same-sex couples sued the county commissioners who 
had voted to authorize issuing licenses for such marriages, claiming that public money had been 
misspent and the officials should personally have to pay back to the county the expenses incurred 
by their actions, including litigation costs.  The suit also seeks an injunction against the county 
incurring any future costs for the purposes of allowing same-sex couples to marry.  The lead 
plaintiff, Johny Alan Belgarde, is director of the Christian Coalition of Oregon.  _The 
Oregonian_, May 25.  An unhappy engaged opposite-sex couple who were turned away when 
they sought a marriage license in Benton County - which has declared a moratorium on issuing 
licenses until the issue of same-sex marriages is resolved in Oregon - has filed suit against 
Benton County.  Orin Nusbaum and Amanda Fanger assert that as Benton County residents they 
should not have to travel to a neighboring county in order to get a marriage license.  Said their 
lawyer, Chris Dunfield of Corvallis, "It's a matter of principle.  The clerk is required by law to 
issue marriage licenses to those who are qualified. _Nusbaum v. Morales_.  Dunfield said that his 
clients are not anti-gay or opposed to same-sex marriage. _Corvallis Gazette Times_, June 24.  
A.S.L.

Marriage & Partnership Legislative Notes



_Cherokee Nation_ - Ruling after a lesbian couple had filed for a tribal marriage application, the 
Cherokee National Tribal Council voted to define marriage as a union between a man and a 
woman.  The council approved the measure on June 14.  Prior to this resolution, Cherokee law 
stated that "every person" age 18 or older could be married with three exceptions: (1) if they 
were already married to somebody, (2) if the applicants were nearer of kin than first cousins, or 
(3) if they are insane or idiots.  Using that definition, Kathy Reynolds and Dawn McKinley got 
married in May in a Cherokee tribal ceremony at Tulsa, Oklahoma's Mohawk Park, but the tribe 
refused to record their marriage, which led them to apply to the council.  The state of Oklahoma 
traditionally honors marriages recorded by the Cherokee Nation.  _Advocate_, June 16. 

_United States Senate_ - The Republican leadership in the Senate announced in mid-June that it 
would attempt to have a vote on the floor of the Senate in mid-July on the proposed Federal 
Marriage Amendment, which would prevent states from authorizing same-sex marriages and, 
some say, would also seriously endanger non-marital legal statuses, such as civil unions or 
domestic partnerships.  As we went to press, the speculation was that the vote would take place 
during the week of July 12, shortly before the Democratic National Convention, and that the 
affirmative votes would fall short of the 2/3 necessary to recommend a constitutional 
amendment.  The purpose of holding the vote would be to force members to go on record with 
respect to the amendment in order to make it a campaign issue, and there were fears that some 
Democratic incumbents might cave to the pressure based on the perception that the general 
public supports the proposed amendment.

_United States House of Representatives_ - House Majority Leader Tom DeLay, a Texas 
Republican, told the _Washington Times_ (July 8) that the House will vote on the Federal 
Marriage Amendment when it comes back from its August recess.  He also stated that the House 
will be considering a bill that would limit federal court jurisdiction over cases involving 
marriage.  Under the Constitution, Congress has legislative authority to define the jurisdictional 
limits of the lower federal courts.  

_United States House_ - U.S. Rep. Jerrold Nadler (D.-N.Y.) has introduced a bill called the 
Equal Access to Social Security Act, H.R. 4701, that would extend to same-sex partners the same 
right as married couples to benefits and equal treatment under the Social Security Act.  Picking 
up language from his own Permanent Partners Immigration bill, Rep. Nadler proposes to add the 
phrase "or permanent partner" to all references to spouses in the Social Security Act.  Co-
sponsors at the time the bill was introduced on June 24 included Reps. Baldwin (WI), Frank 
(MA), Grijalva (AZ) and Kennedy (RI).  The full text is available through a link on Rep. 
Nadler's website.

_U.S. Conference of Mayors_ - Mayors Thomas Menino of Boston, Gavin Newsom of San 
Francisco, and Richard Daley of Chicago co-sponsored a resolution presented to the U.S. 
Conference of Mayors at a meeting in Boston to oppose the Federal Marriage Amendment.  The 
resolution was approved unanimously in committee, but then tabled on a 46-44 vote by the full 
conference, and a motion to bring it off the table lost by a vote of 47-45.  Opponents argued that 
the conference should only approve resolutions that enjoyed consensus support.  One mayor 
speculated that many did not want to be put on the spot of voting for or against such an 
amendment, in light of their own re-election campaigns this fall. _Associated Press_, June 28.  


_Arkansas_ - According to a July 2 article in the _Arkansas Democrat Gazette_, proponents of a 
state constitutional amendment to forbid same-sex marriages have submitted more than double 
the petition signatures necessary to put the measure on the ballot on Nov. 2.  The signatures are 
subject to verification by the secretary of state.  Organizers of the petition drive claim that about 
75% of those who were approached to sign the petitions agreed to do so, and there was no 
organized opposition to the petition drive in the state. The ACLU of Arkansas, criticizing the 
proposal, opined that it would ban civil unions as well as marriages for same-sex partners.  More 
than half a dozen other states will have anti-marriage measures on their ballots this fall.

_California_ - On a vote of 42-27, the California State Assembly voted on June 24 to opposed 
the Federal Marriage Amendment.  On the same date, the Assembly voted 41-31 to state its 
support for the Permanent Partners Immigration Act, a bill introduced by U.S. Rep. Jerrold 
Nadler that would require the immigration authorities to accord spousal status to same-sex 
partners of U.S. residents and citizens. _Associated Press_, June 24.

_Louisiana_ - On June 9 the Louisiana Senate voted 31-6 to put before voters this fall a proposed 
state constitutional amendment banning same-sex marriages.  The House had previously 
approved such a measure, specifying that the vote take place on November 2 during the general 
election.  The Senate version calls for a vote on September 18.  A floor vote in the Senate 
rejected an amendment to the measure proposed by Sen. Joel Chaisson, a Democrat, that would 
have cut it back to addressing only marriages and not civil unions or other forms of legal 
recognition.  The date for voting on this has been the only major point of contention within the 
legislature, with Democrats preferring the earlier date, and Republicans, hoping to help the 
president's re-election campaign, pushing for the general election date in November. _Associated 
Press_, June 9.  

_Maryland_ - Both Howard County and the city of Hyattsville have announced plans to extend 
domestic partner benefits to the partners of public gay employees.  The Hyattsville City Council 
voted 9-1 in favor of extending the benefits during the last week of May, and a week earlier 
Howard County Executive James N. Robey issued an executive order authorizing the county to 
begin issuing such benefits. _Washington Blade_, June 4.

_Michigan_ - Proponents of a state constitutional amendment to ban same-sex marriages claimed 
to have gathered more than 400,000 signatures to put the measure on the ballot in Michigan this 
fall. 317,000 valid signatures are required.  The proposed measure was criticized by local gay 
rights groups as likely to roll back benefits and rights that have already been won in the same 
state for same-sex couples in several venues, by going beyond outlawing marriage. _Detroit Free 
Press_, June 30.

_Missouri_ - The timing of voting on the Missouri anti-marriage amendment has been resolved 
in favor of August 3, when a primary election is already scheduled to be held and a referendum is 
already on the ballot concerning whether to allow a casino riverboat to operate on the White 
River near Branson. _Kansas City Star_, June 26.



_New Jersey_ - The state's new domestic partnership law took effect on July 10, providing that 
same-sex and/or elderly unmarried opposite-sex couples who register are entitled to certain state 
tax benefits, inheritance rights, hospital visitation and medical decision-making rights, and 
protection from discrimination on the basis of their domestic partnership status.  In addition, the 
law authorized treatment of domestic partners of state employees as spouses for purposes of state 
employee benefit plans, and gave local governments the option to do the same.  According to a 
July 9 report in the _New Jersey Law Journal_, at least three towns, Maplewood, South Orange, 
and Princeton Borough, had enacted measures authorizing such benefits by the end of June.

_New York_ - The Town of Huntington, on Long Island, established a domestic partnership 
registry after a June 1 vote by the town board.  Other towns on Long Island that have established 
such registries include East Hampton, Southampton, Southold, and North Hills Village in North 
Hempstead.  Although no benefits are directly provided, registered partners can use their 
certificates to persuade employers and businesses to recognize their status as domestic partners. 
_Newsday_, June 2.

_Oregon_ - While the Oregon courts ponder whether the state constitution requires the state to 
allow same-sex couples to marry, opponents of same-sex marriage have taken matters into their 
own hands, gathering petition signatures for an initiative measure to amend the state constitution 
to ban same-sex marriage.  According to a July 1 report in _The Columbian_, they managed to 
get 244,587 signatures, a new record and more than twice the number required. Signatures are 
still subject to validation by the secretary of state before their proposal can be certified for the 
Nov. 2 ballot.  Basic Rights Oregon, the state's gay rights political organization, announced it 
would launch a statewide campaign to defeat the proposed amendment.  Each side announced 
plans to spend about $1.5 million on the campaign.  The flood of same-sex marriage amendments 
around the country is expected to boost the re-election efforts of George W. Bush by bringing out 
many conservative voters who might otherwise have stayed home due to unhappiness with the 
large budget deficits produced by the Bush Administration. A.S.L.

Marriage Partnership Law & Policy Notes

_Federal Tax Policy_ - A conservative group, calling itself Public Advocate of the United States, 
sought an opinion letter from the Internal Revenue Service on whether same-sex couples who get 
married can file joint tax returns.  As expected, the I.R.S. responded, in writing, that only 
"married individuals" as defined in the federal Defense of Marriage Act "could elect to file a 
joint return." Said the IRS, "Even though a state may recognize a union of two people of the 
same sex as a legal marriage for the purposes within that state's authority, that recognition has no 
effect for purposes of federal law.  A taxpayer in such a relationship may not claim the status of a 
married person on the federal income tax return."  Public Advocate hailed this as a "victory for 
the American family," according to a June 14 UPI story.  What a transparent set-up. . .  Of 
course, this will create significant complications for those who have been legally married in 
Canada or Massachusetts.  Massachusetts, like most states, requires its taxpayers to fill out their 
forms by reference to their federal forms, so the lack of conformity is likely to generate confusion 
unless Massachusetts prepares special forms for same-sex married couples.



_Economic Impact_ - A study by the Congressional Budget Office, the non-partisan agency 
established by Congress to generate empirical evidence for use in the legislative process, 
determined that allowing same-sex partners in the United States to marry would save the federal 
government almost $1 billion a year.  Most of the savings would come from the so-called 
"marriage penalty" contained in federal tax law, which results in net higher taxes from two-
income couples where the income of the individual members of the couples were in lower 
brackets but their aggregate income would raise them to a higher bracket.  The study showed 
about $400 million in additional tax revenue, combined with a drop in spending on various social 
welfare benefits where combined couple income would disqualify potential recipients whose 
individual income (or lack of income) would qualify them for benefits.  In a press release 
announcing the CBO study results, the Williams Project from UCLA Law School observed that 
the results paralleled its own study undertaken in California, which had determined that the state 
would enjoy net savings of $22-25 million a year if same-sex partners could marry under state 
law.

_Corporate Response - Continental Airlines_ - C