LESBIAN/GAY LAW NOTES

ISSN 8755-9021 January 2000

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: Elaine Chapnik, Esq., New York City; Ian Chesir-Teran, Esq., New York City;

Steven Kolodny, Esq., New York City; Mark Major, Esq., Long Island, New York; Daniel R

Schaffer, New York City; Robert Wintemute, Esq., King's College, London, England.

Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118;

e-mail: le-gal@interport.net

(C) 2000 by the Lesbian & Gay Law Association Foundation of Greater New York.

VERMONT SUPREME COURT RULES SAME-SEX COUPLES ENTITLED TO EQUAL

TREATMENT; MANDATES LEGISLATIVE CHANGE WITHOUT SET TIMETABLE

In a unanimous ruling, the Vermont Supreme Court has ordered the state legislature to extend to

same-sex couples the benefits and protections that are currently offered exclusively to married

heterosexual Vermonters. _ Baker v. State of Vermont, 1999 WL 1211709 (Dec. 20). The landmark

victory is a fitting culmination to a decade that has seen a drastic surge in public debate and political

activity concerning the legal status of same-sex relationships -- in local, state and national arenas and

in all three branches of government. It perhaps also alleviates some of the disappointment stemming

from the Hawaii Supreme Court's order, issued eleven days before the Vermont decision, which

dismissed the only other pending same-sex marriage case in the country. (See below)

Vermont's five Supreme Court justices concluded that since the state's marriage statute implicitly

permits only opposite-gender couples to marry, it violates the "Common Benefits Clause" of

Vermont's constitution: "That government is, or ought to be, instituted for the common benefit,

protection and security of the people, nation or community; and not for the particular emolument or

advantage of any single man, family, or set of persons who are a part only of that community." (Ch.

1, Art. 7) The court's decision was not based on federal law or the Equal Protection Clause of the

Fourteenth Amendment to the Federal Constitution, and therefore cannot be appealed to the United

States Supreme Court.

"The legal benefits and protections flowing from a marriage license are of such significance that any

statutory exclusion must necessarily be grounded on public concerns of sufficient weight, cogency,

and authority that the justice of the deprivation cannot seriously be questioned," announced Chief

Justice Jeffrey Amestoy in the majority opinion adopted by three of the justices. The court professed

little difficulty ruling that in the case of same-sex couples, not only did the arguments advanced by

the State fail to overcome this burden of proof, but they also undermined Vermont's existing public

policy concerning family relations.

For example, the State argued that denying marriage benefits to same-sex couples was justified in

order to "further the link between procreation and child rearing," and to promote a permanent

commitment between couples for the security of their children. Yet Vermont already permits

same-sex couples to adopt and rear children who are born through assisted-reproductive techniques.

Vermont was also one of the first states to permit same-sex second-parent adoptions. In light of

these laws, and recent studies cited by the court which showed that a growing number of children

are being born to and raised by same-sex couples, the Chief Justice concluded that "if anything, the

exclusion of same sex couples from the legal protections incident to marriage exposes their children

to the precise risks that the State argues marriage laws are designed to secure against."

The court also noted that many of the benefits of marriage, including intestacy rights, standing to

commence wrongful death or loss of consortium actions, evidentiary privilege for marital

communications, homestead rights, spousal support, and hospital visitation rights, are not dependent

on whether a couple has children. As the majority opinion noted, these collective benefits,

protections, and obligations are indicative of the fact that marriage is premised on more than the

desire to raise a family: "The extension of the Common Benefits Clause to acknowledge plaintiffs

as Vermonters who seek nothing more, nothing less, than legal protection and security for their

avowed commitment to an intimate and lasting human relationship is simply, when all is said and

done, a recognition of our common humanity."

Notwithstanding the court's unanimous conclusion that the state's marriage statute is

unconstitutional, the court did not direct Vermont to immediately begin issuing marriage licenses

to same-sex couples. Instead, four out of five of the justices chose to leave the ultimate decision to

the legislature, who must now determine how to effectuate the court's ruling requiring substantive

equality among heterosexual and homosexual couples. According to the court, the legislature could

forego legalizing same-sex marriage as long as same-sex couples are offered the same benefits as

married couples. Chief Justice Amestoy justified the court's limited remedy by contending that "a

sudden change in the marriage laws or the statutory benefits traditionally incidental to marriage may

have disruptive and unforeseen consequences." Early reports in the _New York Times_ and the

_Boston Globe_ indicated that Vermont Governor Howard Dean (D) favors creating a domestic

partnership system in lieu of same-sex marriage; Dean expressed discomfort with the concept of

same-sex marriage, and suggested that his discomfort was widely shared.

Justice Denise Johnson dissented from the "novel" and "truncated" remedy fashioned by the court,

accusing the majority of hypocrisy. "Within a few pages of rejecting the State's doomsday

speculations as a basis for upholding the constitutionality of discriminatory

classification, the majority relies upon those very same speculations to deny plaintiffs the relief to

which they are entitled as a result of the discrimination," she argued. Justice Johnson would enjoin

the state from denying marriage licenses to same- sex couples.

The plaintiffs are represented by Beth Robinson and Susan M. Murray of Langrock, Sperry & Wool,

a Middlebury, Vermont, law firm, and Mary Bonauto of Gay & Lesbian Advocates & Defenders, a

Boston-based public interest law firm. Amicus briefs were filed by more than fifteen organizations,

including Lambda Legal Defense and Education Fund, Vermont Coalition for Lesbian and Gay

Rights and P-FLAG. _Ian Chesir-Teran_

_Additional notes by Arthur S. Leonard_: The Vermont Supreme Court's decision in _Baker_

appears to be the first by a court of last resort in any jurisdiction to hold on the merits that same-sex

couples are entitled to the same rights and benefits as married opposite-sex couples, although

decisions by Hungary's Constitutional Court to allow same-sex couples to be treated the same as

common-law spouses and recent decisions by the highest courts in South Africa, Canada, and Britain

have come close to this point. In South Africa, the Constitutional Court ruled that the nation's

constitutional commitment against discrimination on grounds of sexual orientation required the

immigration laws to be changed so as to accord equality between committed same-sex couples and

married opposite-sex couples; the Law Committee of the House of Lords, Britain's highest appeals

court, recently ruled that a same-sex couple should be treated as family members for purposes of

tenant regulations; and the Canadian Supreme Court ruled last summer that same-sex couples should

be treated as equivalent to married couples under an Ontario law on spousal support obligations.

In his opinion for the Vermont court, Chief Justice Amestoy speculated that the legislature might

look to the legislative domestic partnership schemes adopted in the Scandinavian countries, or to the

original, broadly-conceived domestic partnership proposal presented to the Hawaii Senate during its

deliberations over responses to the _Baehr_ ruling, as models for compliance, while noting that those

schemes fell short of full equality. Indeed, it is hard to know how the Vermont legislature could

meet the court's mandate of providing full equality through a domestic partnership statute, without

providing expressly that same-sex couples who qualify and register must be treated precisely the

same as opposite-sex couples for every benefit, right, and obligation of state law. Even then, of

course, full equality would not have been achieved, since only conferral of the right to marry itself

would likely have extra-territorial consequences. There is no direct precedent, for example, for

opining on whether a neighboring state would recognize a Vermont registered partnership if, for

example, the couple were traveling out-of-state and encountered some situation in which their

marital status would be crucial. Even married same-sexers would be likely to confront obstacles to

recognition of their relationships, not least the 1996 federal Defense of Marriage Act and some 29

state-analogue statutes, but at least as lawfully married couples they would have clear legal standing

to challenge those obstacles. Consequently, a strong argument might be made that only by

conferring the right to marry would the Vermont legislature clearly meet the equality mandate set

down by the court.

The Vermont Supreme Court retained jurisdiction of the case, and Amestoy's opinion suggested that

should the legislature opt for a domestic partnership scheme, or should the legislature fail to act in

a timely fashion, the court stood ready to hear arguments that it should mandate the right to marry

as a remedy. As to the likelihood that this will result in a delay sufficient to produce a constitutional

amendment overruling the decision, Vermont's constitution is not nearly so easy to amend as

Hawaii's. A proposed amendment would have to be approved by two successive legislatures with

a legislative election intervening before it could be placed on the ballot, so the earliest such an

amendment could be presented to the people for ratification would be many years in the future.

Amestoy's opinion said that the current statute could remain in effect "for a reasonable period of

time" to give the legislature a chance to act. One speculates that a "reasonable period" would not

go beyond the electoral life of one legislature.

There is another point of interest surrounding the decision, although it is a point mainly of concern

to devotees of constitutional theory. In his opinion for the court, Chief Justice Amestoy departed

from past Vermont precedents, in which the court had closely followed the jurisprudence of the U.S.

Supreme Court under the Equal Protection requirements of the 14th and 5th Amendments. Beginning

in the 1930's, the Supreme Court constructed a methodology based on different levels of judicial

review depending upon the characteristics upon which discrimination was based and the significance

of the rights as to which discrimination was alleged. In the three-tiered structure that emerged,

discrimination involving "suspect classifications," such as race, or concerning "fundamental rights,"

such as the right to vote, was reviewed under a "strict scrutiny" standard that was usually fatal to the

challenged statute or rule, placing the burden on the government to show a compelling interest that

could only be achieved by following the challenged policy. Discrimination involving non-suspect

classifications or interests that were not seen as fundamental received deferential "rational basis"

review, under which the challenged statute or rule would survive if the court could hypothesize any

plausible rationalization for it. An intermediate standard appeared to be applied in cases involving

sex discrimination, where the court held that "heightened scrutiny" was appropriate and the

government had to come up with a convincing justification of the need to classify people based on

their sex to achieve an important purpose.

Some members of the Supreme Court have questioned the logic of this three-tiered approach,

arguing that all discriminatory treatment should be subject to careful review under the Equal

Protection requirement, and in recent years the Court has seemed to develop a more flexible

approach, particularly in considering discrimination based on classifications that have not been

determined by the Court to be suspect, such as sexual orientation in _Romer v. Evans_ (1996). In

his opinion, after observing that state supreme courts are not bound to follow U.S. Supreme Court

methodology in construing their state constitutions, Amestoy contended that the Vermont court had

departed in the past from strict adherence to the three-tiered approach, and that in Vermont all equal

protection challenges should be evaluated by a flexible, fact-based analysis that takes into account

the weight of interests affected on both sides of the issue.

Amestoy's analysis persuaded two of his colleagues, but produced concurring opinions following

different paths by Justices John Dooley and Denise Johnson. Justice Dooley expressed grave

concerns about Amestoy's approach, suggesting that the departure from precedent might undermine

the perceived legitimacy of the court's conclusion (with which he heartily agreed). For Dooley, the

case could be dealt with straightforwardly by finding that sexual orientation is a suspect

classification for purposes of the Vermont Common Benefits clause, and that the state's articulated

justifications for reserving marriage for opposite-sex couples fail to withstand strict scrutiny.

Justice Johnson's opinion was both a concurrence and a dissent, but she concurred only with the

majority's conclusion on the merits, not with its methodology. She preferred to follow the lead taken

by the Hawaii Supreme Court, which had determined that so long as a person's sex was used by the

state as a basis to grant or deny marriage rights, the marriage law was imposing a sex classification,

and that sex classifications are "suspect" for purposes of equal protection analysis. From there, her

analysis was similar to Justice Dooley's, finding that the state's rationale for its policy failed the

strict scrutiny review. Johnson departed from Dooley and Amestoy in finding that the only remedy

would be to order the state to let same-sex couples have marriage licenses on the same basis as

opposite-sex couples. In defending its existing policy, the state had argued that one justification was

to avoid the disruption and uproar that granting same-sex marriages might cause; Amestoy had

dismissed this as a rationale in his ruling on the merits, but had then invoked the same argument in

his ruling on the remedy -- thus, Johnson's denunciation of the majority for hypocrisy on this point.

No matter how this eventually turns out, lesbians, gay men and bisexuals should long remember the

names of the five Vermont Justices who unanimously agreed in their historic ruling of December 20,

1999, that same-sex couples should be entitled to all the rights and benefits that are routinely

accorded to opposite-sex couples in our society through the legal status of marriage. They hereby

join the Lesbian and Gay Legal Rights Hall of Fame. (Is any Lesbian and Gay Community Center

ready to establish such an institution?) They are: Jeffrey L. Amestoy, Chief Justice, and Associate

Justices Denise R. Johnson, John A. Dooley, James L. Morse, and Marilyn S. Skoglund. A.S.L.

LESBIAN/GAY LEGAL NEWS

Hawaii Supreme Court Finds Marriage Case Mooted by Constitutional Amendment, But Also Finds

Sexual Orientation is Suspect Classification Under State Constitution

The Hawaii Supreme Court announced on December 9 that the long-running lawsuit seeking the

right to marry for same-sex couples is over. After pondering the matter for three years, the court

ruled in _Baehr v. Miike_, No. 20371, 26 Fam. L. Rep. (BNA) 1075, that a constitutional

amendment passed by Hawaii's voters in November 1998 had rendered the controversy moot by

taking the issue out of the hands of the courts and giving the legislature "the power to reserve

marriage to opposite-sex couples." The end of the case came almost exactly nine years after it began,

with three same-sex couples applying for marriage licenses at the Hawaii Health Department on Dec.

17, 1990. While the decision ended the suit, it also appeared to contain, in a footnote, an

extraordinary extension of constitutional rights for lesbian and gay Hawaiians and an implicit

invitation for more litigation over unequal treatment.

Although the plaintiffs did not gain their immediate goal, their case spawned a revolution in the law

as it stimulated state and federal legislation, prompted numerous prominent people and organizations

to endorse same-sex marriage, persuaded the lesbian and gay legal movement to take up the quest

for same-sex marriage as an important goal, and made the idea of same-sex marriage seem inevitable

to a growing majority of the population.

The case began with the Hawaii Health Department's rejection of the marriage license applications

filed by Ninia Baehr and Genora Dancel, Jose Melillo and Patrick Lagon, and Tammy Rodrigues and

Antoinette Pregil. The rejected couples decided to sue the state, and approached the ACLU and

Lambda Legal Defense Fund seeking counsel. At that time, the legal organizations were very cool

to the idea of litigating for marriage licenses for same-sex couples, reacting both to unsuccessful

cases brought in the 1970s and to a critique of the traditional marriage institution that rejected it as

inappropriate for same-sex couples. Unable to secure help from the gay legal movement, the couples

found Dan Foley, a non-gay private practitioner who took on the case as a public interest project.

Hawaii Circuit Judge Robert Klein issued the first ruling in the case _Baehr v. Lewin_, 5. CC 91-

1394 (Haw. Cir. Ct. Sept. 3, 1991), finding that there was no fundamental right for same-sex couples

to marry under the Hawaii constitution, and that the alternative equal protection challenge should

be judged under the undemanding rational basis test and rejected. The plaintiffs appealed this ruling

to the Hawaii Supreme Court, which sat on the case for some time before issuing its historic ruling

in _Baehr v. Lewin_, 852 P.2d 44 (Haw., May 5, 1993), affirming Klein's holding on the

fundamental rights issue, but reversing on the equal protection issue. In _Baehr_, the Hawaii

Supreme Court determined by plurality vote that denying a marriage license because of the sex of

the applicants was a form of sex discrimination and, noting that the Hawaii Constitution expressly

bans discrimination on the basis of sex, that such a denial should be subjected to the strict scrutiny

review that is used for government policies that disadvantage people based on a suspect

classification.

The case was remanded for a trial, which was held, after much discovery and many postponements,

in October 1996. But the time between the Supreme Court ruling and the trial generated intense

discussion in government, in the national media, and within the gay rights movement. The 1993

decision prompted Lambda Legal Defense & Education Fund to change its stance on same-sex

marriage and join the case as co-counsel, with Evan Wolfson, a senior staff attorney (who had argued

within Lambda in favor of bringing marriage litigation for many years) designated to head Lambda's

new "Marriage Project." The opinion set off an alarm among conservative religious groups, which

made opposition to same-sex marriage into a major fund-raising tool and which stimulated their

followers among state legislators to begin introducing bills explicitly declaring same-sex marriage

contrary to public policy, in reaction to claims (perhaps somewhat exaggerated in light of the actual

precedents) that if Hawaii sanctioned same-sex marriages, other states would be compelled to

recognized them under the U.S. Constitution's Full Faith & Credit Clause unless, perhaps, the states

had adopted express public policies to the contrary.

The wave of state legislation and the agitation by conservative religious groups put the issue on the

agenda for Republican presidential candidates in 1996, several meeting during the Iowa caucus

campaign to pledge their opposition to same-sex marriage, and the leading Republican candidate,

Senate Majority Leader Robert Dole, introducing the Defense of Marriage Act in the Senate, with

the rapid endorsement of incumbent President Bill Clinton. The Defense of Marriage Act purported

to relieve the states of any obligation under the Full Faith & Credit Clause to recognize out-of-state

same-sex marriages, and forbade the federal government from recognizing same-sex marriages for

purposes of federal law. In a political deal to get a "clean" vote on the Senate floor without a string

of threatened amendments (including one attaching the pending Employment Non-Discrimination

Act), Senate leaders agreed to let ENDA come to a vote on the Senate floor following passage of

DOMA. To the amazement of most observers, ENDA secured 49 votes and would have passed the

Senate had not one Democratic supporter been absent due to a family medical emergency. Vice

President Al Gore was standing by to cast the tie-breaking vote, had a 50-50 tie occurred. This was

the highest official level of support ever yet attained at the federal level for legislation banning

sexual orientation discrimination.

Hawaii had its own political reaction to the pending trial. State legislators quickly passed a statute

declaring the public policy of the state to limit marriage to opposite-sex couples, but as the Hawaii

Supreme Court reacted to a state petition to clarify or reconsider its ruling by reaffirming it, it

became clear that a constitutional amendment would be the only way to block same-sex marriage

if the trial turned out in the plaintiffs' favor.

The trial was conducted in the full glare of national publicity and the Presidential campaign. District

Judge Kevin Chang heard four expert witnesses for each side, who addressed their testimony

exclusively to the issue of gays as parents. This was because the state framed its defense of the

statute almost entirely on the proposition that the state had a compelling interest to ensure the best

possible environment for raising children, which required restricting marriage to opposite-sex

couples. Judge Chang was not convinced by the state's arguments. In _Baehr v. Miike_, 1996 WL

694235 (Haw. Cir. Ct., 1st Cir. Dec. 3, 1996), he decisively rejected the argument that the state's

concern for children justified denying marriage licenses to same-sex couples. Indeed, Chang found

that gay people could be good parents, that many were raising children, and that excluding gay

people from getting married actually harmed their children by denying them the derivative benefits

that the marriage of their same-sex couple parents would bring. Judge Chang stayed his ruling

pending the state's appeal.

Now the legislative opponents of same-sex marriage in Hawaii were truly alarmed, since they fully

expected the Supreme Court would affirm Chang's ruling. The legislature came to a stalemate,

however, with one house eager to present the public with a constitutional amendment that would

overrule the court, and the other eagerly considering the passage of a sweeping domestic partnership

bill that would extend most of the rights of marriage to same-sex couples, if not the actual legal

status, in hopes that the court would see such legislation as sufficient to meet constitutional

objections. In the ultimate compromise, the legislature approved a narrow constitutional amendment

for placement on the November 1998 ballot, that would specifically give the legislature the power

to "reserve marriage" for opposite-sex couples, and also approved a Reciprocal Beneficiaries Law,

that would extend many rights and privileges common to marriage to same-sex couples (and to

opposite-sex couples who were barred by law from marrying, as well).

Now the waiting game began. Would the Supreme Court affirm Judge Chang's ruling before the

scheduled vote on the amendment, which by operation of the Hawaii constitution could not take

place before November 1998? What would happen if the state was ordered to allow same-sex

couples to marry before the vote was held? How would such a development affect the vote? There

was much speculation, and during this period the drive to ban same-sex marriage in other states

accelerated. The debate and anticipation also affected public opinion, as the proportion of polling

respondents who opposed same-sex marriage started to decline and the proportion who believed that

same-sex marriage would happen, but sometime off in the future, began to rise.

It was during the euphoria of this period that Gay & Lesbian Advocates & Defenders, the Boston-

based New England gay public interest law firm, collaborated with attorneys in Vermont on a new

same-sex marriage case. Although the trial court dismissed the case, _Baker v. State of Vermont_,

No. S1009-97 Cnc (Chittendon Super. Ct. December 19, 1997), this was seen as a temporary setback

and an appeal was filed to the liberal Vermont Supreme Court. Also, individual litigants in Alaska,

proceeding against the advice of the national gay legal groups, had filed a same-sex marriage case

and obtained a positive trial court ruling in _Brause v. Bureau of Vital Statistics_, 1998 WL 88743

(Alaska Super. Feb. 27, 1998), but legislators there put an initiative on the ballot to overrule the

decision by constitutional amendment before the Alaska Supreme Court could rule on it.

Then came the stunning defeat on Election Day 1998 in Hawaii, as 69% of the voters approved the

amendment. (The Alaska ballot amendment also passed.) There was immediate debate in Hawaii

and elsewhere about whether this mooted the state's appeal of Judge Chang's decision, but a quick

decision was expected from the Hawaii Supreme Court, which was widely seen to have been

awaiting the result of the vote before having to make a controversial decision. In the event, the court

spent more than a year after the election deciding what to do, receiving briefs, putting off holding

arguments, generating controversy over whether the legislature had to act or could rest on the statute

it passed in reaction to the 1993 decision. Finally the court spoke on Dec. 9, issuing a brief order

that found the amendment had mooted the controversy and taken the question of same-sex marriage

out of the hands of the courts. The court ordered Judge Chang's decision reversed and the case

remanded for entry of judgment in favor of the state.

Justice Ramil wrote a concurring opinion, arguing that the 1993 decision had been wrong and should

be overturned as well. This provoked a lengthy textual footnote from the court, with the one true

surprise of the decision. Ramil had contended that the 1993 plurality decision erred in treating the

denial of marriage licenses to same-sex couples as sex discrimination. He argued that it was actually

sexual orientation discrimination, and, as such, not a form of discrimination invoking strict scrutiny

review. The court's footnote argued that Ramil had misunderstood key aspects of the 1993 decision,

but that his contention that the case involved sexual orientation discrimination would not have

produced a different result, because strict scrutiny would still be required!

"This is so," wrote the court, "because the framers of the 1978 Hawaii Constitution, sitting as a

committee of the whole, expressly declared their intention that a proscription against discrimination

based on sexual orientation be subsumed within the clause's prohibition against discrimination based

on sex," citing the published Proceedings of the Constitutional Convention. The court pointed out

that the state had conceded as much in its briefs prior to the 1993 ruling.

So, even as it was ending the quest for same-sex marriage in Hawaii, at least for now, the court

appeared to be inviting same-sex couples in the state to challenge every instance in which the state

denies them equal treatment with opposite-sex couples, and promising to apply strict scrutiny when

those controversies might reach the Supreme Court. Given the feisty movement in support of the

case that had grown up in Hawaii over the decade of the 1990s, it seemed quite likely that the

invitation will be accepted. Surely, the 1998 constitutional amendment does not stand in the way,

as it was so whittled-down by legislative compromise that it literally applies only to the issue of

marriage itself, and not to any of the incidents of marriage. An argument that same-sex couples in

Hawaii may be constitutionally entitled to all the incidents of marriage, should a committed set of

plaintiffs decide to make it, might well prove successful.

But for now, the attention of the same-sex marriage movement turned to Vermont, where the state

supreme court issued its historic unanimous ruling less than two weeks later, and to California,

where an initiative banning same-sex marriage proposed by State Senator Knight will be on the

March 7 ballot when voters cast their votes for presidential nominees in the California primary.

A.S.L.

N.Y. High Court Rejects Giuliani's Definition of "Adult" Businesses

In _City of New York v. Les Hommes_, 1999 N.Y. Slip Op. 10744, 1999 WL 1215136 (Dec 20.),

the N.Y. Court of Appeals dealt the administration of N.Y. City Mayor Rudolph Giuliani yet another

stinging judicial rebuke in its campaign to regulate non-criminal conduct of which the mayor

disapproves.

In the early 1990's, the Giuliani administration sought to "clean up" the city and rid it of "adult

establishments" and "adult bookstores," which trafficked in sexually explicit materials, by enacting

a zoning ordinance that declared businesses which devoted "a substantial portion" of sales and

storage space to adult materials to be "nuisances" subject to closure if they were located anywhere

in the city except for a few designated zones far from residential or commercial centers. "A

substantial portion" was interpreted to mean 40% or more of the floor space, or 10,000 square feet

of floor space, regardless of the size of the business. A bookstore would fall under the purview of

this ordinance if 40% or more of its accessible stock for sale or rent was of an "adult" nature. This

zoning ordinance survived facial challenge, and many such businesses were forced to close around

the city. A few have resisted closing efforts and attempted to adjust their stock and appearance to

comply with the ordinance.

When Les Hommes, a bookstore catering to the gay community on New York City's Upper West

Side, adjusted its stock, its display space in front, and the content of its video rooms and mini-theater

in the back to comply with the new ordinance, the City tried a different approach. The City sought

to enjoin continued operation of the business, arguing that even though the business was in literal

compliance with the ordinance, because the bulk of the business conducted by Les Hommes

(surprise! surprise!) related to its adult materials, the changes were a sham. The trial court bought

this argument, and granted a permanent injunction against continued operation of the business in its

current form, ruling that because of the terribly stale inventory of "non-adult" videos, and because

the "non-adult" videos offered by the store were only for sale, while the "adult videos" could be

rented, compliance was formalistic and a sham. The Appellate Division affirmed, agreeing that Les

Hommes "in its true essence remained a non-conforming adult video establishment."

In a tersely-worded unanimous opinion written by Judge Carmen Ciparick, the Court of Appeals

reversed, ruling that literal compliance with the ordinance and accompanying regulations was all that

was needed, because nothing in the ordinance or regulations gave any support to the view that the

source of revenue for the business or the stability of the non-adult stock need be considered.

Reliance on a distinction between sales and rentals was erroneous, the court ruled, because the

guidelines treated sales and rentals the same way. The court concluded that the guidelines had to be

enforced as written. Either stock was accessible, or it was not. Either square footage devoted to

non-adult materials was sufficient, or it was not. Questions as to whether the owners of the business

had a "good faith desire" to sell non-adult materials, or whether the volume of non-adult stock was

stable or profitable "are not part of the inquiry here," wrote Judge Ciparick. "We cannot rewrite the

City's guidelines to include these additional considerations."

The Mayor immediately announced that he would ask the Law Department to propose a modification

of the guidelines in order to overrule the court's decision. _Steven Kolodny_

Washington Court Allows Gay Relationship Evidence to Impeach Witness for Defendant

In an unpublished opinion, the Court of Appeals of Washington affirmed admission of testimony of

a gay relationship to impeach a witness over the defense's objection that the impeachment was

improper and prejudicial. _State of Washington v. Wilson_, 1999 WL 1048646 (Wash.App. Div.

2, Nov. 19).

At his trial for the multiple rape of a male child, Timothy Wilson's defense called Robert Rictor to

testify that he lived with Wilson since 1993 and had seen Wilson and the child behave as uncle and

nephew, but had not seen any sexual contact between them. On cross-examination, the trial court

permitted the State to ask Rictor if he and Wilson were in a homosexual relationship. Rictor replied

that they were a gay couple in a romantic and sexual relationship. The trial court admitted testimony

of the gay relationship to impeach Rictor for bias. Wilson's contention is that the evidence that he

and Rictor had a sexual relationship lent greater credibility to the child's accusations of homosexual

rape and was therefore unfairly prejudicial.

Stating that "a relationship between a party and a witness is generally relevant for impeachment

purposes," Judge Houghton's opinion noted that evidence of the relationship "is relevant for

impeachment purposes as it may show a bias affecting Rictor's testimony." Wilson had cited _U.S.

v. Gillespie_, 852 F.2d 475, 479 (9th Cir.1988), for the proposition that evidence of a witness's

homosexuality can be "extremely prejudicial." But Houghton cited Washington state cases that

"have permitted evidence of homosexuality in some contexts," concluding: "Under the facts of this

case, the trial court could have admitted or excluded the evidence of Wilson's homosexual

relationship with Rictor. But we cannot conclude that it abused its discretion in admitting it." _Mark

Major_

European Court of Human Rights Bans Sexual Orientation Discrimination in Child Custody

Decisions

On Dec. 21, a 7-member chamber of the European Court of Human Rights held unanimously (by 7-

0) in _Salgueiro da Silva Mouta v. Portugal_ (Application No. 33290/96) (available at

appellate court's use of a gay father's sexual orientation as a negative factor in deciding to deny him

custody of his daughter violated Articles 8 (respect for family life) and 14 (non-discrimination) of

the European Convention on Human Rights.

The father, Joao Manuel Salgueiro da Silva Mouta, and the mother reached an agreement, in

connection with their divorce proceedings, that she would have parental authority over their daughter

(then aged 3) and that he would have a right to visit. However, when she did not permit him to visit,

and placed the daughter in the custody of her parents, the father applied to the Lisbon Family Court

for parental authority. In response, the mother accused the father's male partner, with whom he had

been living since he and the mother separated, of sexually abusing the daughter. In the light of a

report by psychologists, the Family Court rejected the allegation, finding that the daughter's

statements were the result of the influence of adults, and awarded parental authority to the father,

who was better able to provide a stable environment. The daughter then lived with the father for six

months, until she was abducted by the mother.

Subsequently, the Lisbon Court of Appeal reversed the Family Court's decision and awarded

parental authority to the mother. The Court of Appeal noted that the mother had been living with

a male partner for two years whose monthly income was three times that of the father, that young

children should only be separated from their mothers in exceptional cases, and that the allegation of

sexual abuse against the father's partner could not be ignored. The Court of Appeal then observed

that the father's living with another man was not the best environment for the moral, social and

mental development of a child, who "must live in a family, a traditional Portuguese family ... It is

not necessary to decide whether or not homosexuality is an illness or a sexual orientation ... In both

cases, one is in the presence of an abnormality and a child must not grow up in the shadow of

abnormal situations; it is human nature that requires it ..." The Court of Appeal concluded that the

mother's failure to permit visits was not yet a sufficient reason to deprive her of parental authority.

Although the father would have a right to visit, "he had to understand that it would not be advisable

to create situations permitting the child to understand that her father lives with another man in

conditions similar to those of spouses." After the Court of Appeal's decision, the mother never

permitted the father to visit.

The European Court of Human Rights began by holding that the Court of Appeal's decision had

interfered with the father's Article 8 right to respect for his family life. Article 14 therefore applied,

and prohibited differences in treatment, without objective and reasonable justification, between

persons in similar situations. Even though the Court of Appeal's main concern was the "best

interests of the child," the Court of Appeal had introduced a new factor in reversing the Family

Court's decision, namely the fact that the father is gay and lives with a man. There had therefore

been "a difference in treatment between the father and the mother, which was based on the sexual

orientation of the father, a concept which is covered, it cannot be doubted, by Article 14 of the

Convention," which contains a list of grounds of discrimination that is illustrative and not exhaustive

(and that does not expressly mention sexual orientation). This difference in treatment would be

discriminatory under Article 14 if it did not have an objective and reasonable justification, i.e., if it

did not pursue a legitimate aim and if there was not a reasonable relationship of proportionality

between the means used and the aim. Here, protection of the health and rights of the child was a

legitimate aim, but the proportionality requirement was not satisfied.

The European Court had to decide whether the Court of Appeal's references to the father's sexual

orientation were mere obiter dicta, or whether they were a decisive factor. The European Court held

that "these passages from the Court of Appeals's decision, far from being merely awkward or

unfortunate expressions ... or mere obiter dicta, indicate ... that the homosexuality of the father had

a determining weight in the final decision ... It was therefore necessary to observe ... that the Court

of Appeal has made a distinction dictated by considerations relating to the sexual orientation of the

father, a distinction which cannot be tolerated under the Convention (see, mutatis mutandis,

_Hoffmann v. Austria_, 1993, paragraph 36)." In _Hoffmann_, the European Court held that a

mother's being a Jehovah's Witness could not be held against her in a child custody decision, and

said in paragraph 36: "Notwithstanding any possible arguments to the contrary, a distinction based

essentially on a difference in religion alone is not acceptable."

_ Salgueiro da Silva Mouta_ is a major breakthrough for a number of reasons. It is the European

Court of Human Rights' first decision protecting lesbian, gay and bisexual parents against

discrimination. It is the Court's first decision finding that a distinction based on sexual orientation

is "discrimination" contrary to Article 14 of the Convention (combined with another Article of the

Convention, as must always be the case). And the citation to _Hoffmann_ arguably places sexual

orientation in a group of "suspect grounds of discrimination" under Article 14, along with sex, race,

religion, nationality and illegitimacy. Distinctions based on these grounds can only be justified by

"very weighty reasons." _Robert Wintemute_

Illinois Appeals Court Rejects Lesbian Co-Parent Visitation Petition

Affirming a decision by Cook County, Illinois, Circuit Judge Herman Knell, the Illinois First District

Court of Appeal ruled Dec. 16 in _Matter of Visitation With C.B.L.; A.B. v. H.L._, 1999 WL

1204780, that the specific provisions of Section 607 of the Illinois Marriage Act provide the sole

mechanism for a person to obtain visitation rights with a minor, rejecting a lesbian co-parent's

argument that she should be afforded visitation as a "de facto" parent.

Amanda and Helen met in 1984 and formed a lesbian relationship. In 1993, having decided to have

a child together, they obtained semen from a donor and Helen became pregnant, giving birth to their

child, C.B.L., in December of that year. Amanda participated equally in caring for C.B.L. until the

couple split up in 1995. The next year, Helen moved with C.B.L. to Chicago. Amanda sought to

continue her relationship with C.B.L., but beginning in March 1997 Helen denied Amanda any

further contact with the child. Amanda filed suit in Cook County Circuit Court, seeking a visitation

order based on a theory that had an established history in Illinois: de facto parent status.

As originally enacted, the Illinois Marriage Act provided for visitation only for legal parents of

minors. Over the years, courts used a common law concept of de facto parent to extend visitation

rights to grandparents, stepparents, and other relatives who had formed close attachments with

children and were seeking visitation rights over the opposition of a custodial legal parent or parents.

Responding to these court rulings, the legislature adopted piecemeal amendments to the law,

extending the categories of individuals who would have standing to seek visitation orders. Now,

section 607 of the Marriage Act is a lengthy, complex provision specifying categories of individuals

who can seek visitation and laying out limitations and terms governing such orders.

Circuit Judge Knell found, and the appeals court agreed, that this process of legislative expansion

had come to occupy the field, and refused to use the common law doctrine to recognize a new class

of potential applicants for visitation. Writing for the appeals court, Judge John Hourihane found that

in this case the "enactment of general and comprehensive legislation. . . indicates a legislative intent

that the statute should totally supersede and replace the common law dealing with the subject

matter." Houlihane concluded that the Illinois Marriage Law "is such a statute. Since its enactment

in 1977, section 607 has evolved from a simple, straightforward codification of the common law of

parental visitation to a complex and ever-growing statutory provision. Indeed, section 607 presently

constitutes a detailed and comprehensive legislative enactment on the subject of visitation."

Having found that the statute now supersedes the common law as the source of judicial authority in

visitation cases, the court found that Amanda's attempt to invoke a common law principle to achieve

standing was "without merit," as section 607 has become the sole source of standing for visitation

cases. Amanda had conceded in the trial court that she was not qualified for visitation under section

607.

Houlihane concluded the brief opinion (a substantial portion of which consists of a footnote quoting

the entirety of section 607), by commenting that "this court is not unmindful of the fact that our

evolving social structures have created non-traditional relationships," but asserting that the decision

of who gets standing, "an issue of complex social significance," required a legislative solution, and

to date section 607 is it.

Amanda was represented on appeal by Lambda Legal Defense Fund staff attorney Heather Sawyer,

who charge the court with "abdicating" its responsibility towards the best interest of the child. The

opinion is in line with a majority of the appellate courts that have faced this question, but a few

courts, most recently the Massachusetts Supreme Judicial Court in _E.N.O. v. L.M.M._, 429 Mass.

824, 1999 WL 430460 (June 29), have come up with ways to get around the limitations of visitation

statutes in order to reaffirm important family values in the best interest of children. A.S.L.

Nevada Supreme Court Retrenches on Bystander Emotional Distress Claims; Chief Justice Protests

Unfairness to Gay Couples

Pulling back from a 1998 decision in which a plurality of the court decided to allow fact-finders to

determine whether individuals had a "close" and "intimate" relationship sufficient to support an

award of damage for emotional distress in bystander situations, a majority of the Nevada Supreme

Court ruled in _Grotts v. Zahner_, 1999 WL 1138496 (Dec. 13), that a bright-line test based on legal

or blood relationships should determine standing in such cases. Chief Justice Rose, dissenting,

protested the unfairness of this result for, among others, lesbian and gay couples.

Plaintiff Kellie Grotts and her fianc‚, John Colwell, were involved in an accident in which Colwell

was killed. Grotts sued Gertrude Zahner seeking bystander emotional distress injuries, premised on

the injury she suffered from witnessing the demise of her beloved John. The trial court determined

that because she was not, as a matter of law, "closely related" to Colwell, her claim had to be

dismissed.

In 1998, a plurality of the Nevada Supreme Court ruled in _State Dept. of Transportation v. Hill_,

963 P.2d 480, that whether the relationship between the plaintiff and the injured person was "close"

enough to justify liability was a factual issue to be determined based on an inquiry into the nature

of the relationship, rather than a question of law to be decided by the court based on blood or marital

ties. Retrenching from that position, four members of the court held, in an opinion by Justice

Maupin, that such standing issues <69>should, as a general proposition, be determined based upon

family membership, either by blood or marriage. Immediate family members of the victim qualify

for standing to bring NIED [negligent infliction of emotional distress] claims as a matter of law.

When the family relationship between the victim and the bystander is beyond the immediate family,

the fact finder should assess the nature and quality of the relationship and, therefrom, determine as

a factual matter whether the relationship is close enough to confer standing. This latter category

represents the `few close cases' where standing will be determined as an issue of fact, either by a jury

or the trial court... We therefore hold that any non-family `relationship' fails, as a matter of law, to

qualify for NIED standing."

Protesting this new standard, Chief Justice Rose pointed out that the recent _Hill_ decision had

provided an opportunity for the lower courts to develop a new, more flexible standard, which the

court was precipitously cutting off. More importantly, the new rule ignored social reality. "While

this rule will be predictable, it will permit some people to pursue this claim who have no close

relationship, and yet prohibit others who have a loving, close relationship with someone injured or

killed from pursuing these claims merely because they are not related by blood or marriage. . .

Anyone living in a non-traditional relationship will be denied the chance to recover emotional

distress damages, while those living together with benefit of marriage will not suffer such prejudice.

It is a fact of life that many gay men and lesbian women have partners with whom they have lived

for decades and shared a close, loving relationship. These individuals will be denied the right to

even claim damages for emotional distress for witnessing injury or death to their partner for no other

reason than that they are not legally married, a status they cannot prevent. The closeness of two

people should be judged by the quality and intimacy of the relationship, not by whether there is a

blood relationship or whether a document has been filed at the court house. A segment of our

population should not be denied legal redress imply because of their lifestyle."

It will be interesting to see whether the Vermont legislature addresses this issue as part of its

consideration of how to meet the Vermont Supreme Court's mandate in _Baker v. Stated>, see

above. A.S.L.

Federal Court Holds That Homophobic Verbal Workplace Harassment Was Not Outrageous Enough

to Support Emotional Distress Claim Against Co-Workers

U.S. District Judge John R. Padova (E.D.Pa.) ruled in _Redden v. ContiMortgage Corp._, 1999 WL

1257280 (Dec. 1999) (not officially published), that the typical litany of anti-gay verbal harassment

aimed at an effeminate male employee was not sufficiently outrageous to sustain a claim of

intentional infliction of emotional distress against the employee's co-workers.

Norman Redden was hired as a financial analyst by ContiMortgage Corp. in September 1997, and

resigned on May 20, 1998. Redden alleges that he encountered verbal harassment of a homophobic

nature from several co-workers throughout his employment at ContiMortgage. He alleged that these

co-workers questioned "his presentation as a male," labeled him a "misfit" and a "fag," mimicked

his speech patterns and intonations, asked him "why gay guys talk like that," suggested that he was

having sex parties at home and that he was masturbating under his desk, asked him whether he

kissed other men and generally made fun of him. Redden alleges that a supervisor participated in

some of this misconduct, and took no steps to restrain the other co-workers. Redden claimed that

for several weeks beginning in February 1998, these co-workers parodied the song, "In the Navy,"

with sexually explicit and derogatory comments concerning gay men. This led Redden to complain

to the company's human resources office. He resigned on May 20, and filed a complaint with the

Pennsylvania Human Relations Commission on July 18 of that year, alleging sexual harassment.

The complaint was cross-filed with the EEOC, which issued him a right to sue letter.

Redden filed suit in federal court against ContiMortgage and four of his co-workers, alleging sexual

harassment in violation of Title VII and the state sex discrimination law, and adding a common law

claim of intentional infliction of emotional distress. In the motion before the court, all defendants

sought dismissal of the emotional distress claim. (Redden had previously agreed to dismissal of the

two statutory claims against his co-workers, recognizing that the federal and state discrimination

laws afford claims only against the employer, not against co-workers.) In litigating the motion,

Redden also conceded that his tort claim against the employer would have to be dismissed as

preempted under Workers Compensation Law, so the only question remaining for the court in ruling

on the motion was whether Redden had stated a valid claim of intentional infliction of emotional

distress against his co-workers.

"To establish a claim for intentional infliction of emotional distress," wrote Padova, "a plaintiff must

show that the conduct was `so outrageous in character, and so extreme in degree, as to go beyond

all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized

society,'" quoting from _Hoy v. Angelone_, 720 A.2d 745 (Pa. 1998). Padova observed that "such

a claim based on sexual harassment in the workplace is exceedingly difficult to maintain," quoting

from several Pennsylvania cases, including _Hoy_, in which courts had found that the verbal

harassment typical in hostile environment cases did not constitute the type of outrageous conduct

sufficient to sustain a tort action. (Although the court didn't mention such cases, some courts in

other jurisdictions have upheld such claims where the alleged misconduct included egregious

offensive physical touching, including mock rapes and actual sexual assaults.) "The Court finds that

the conduct at issue in this case falls squarely within the _Hoy_ decision," Padova concluded.

"While the court does not condone the alleged treatment of Plaintiff by his co-workers, the episodes

of harassment alleged by Plaintiff do not rise to the level of intentional infliction of emotional

distress."

Because of the way he disposed of this motion, Padova declined to rule on the defendants'

contention that the emotional distress claim against them would also be preempted by the Workers

Compensation Act. Of course, Padova's ruling does not affect Redden's continuing sexual

harassment claims against ContiMortgage under Title VII and the Pennsylvania discrimination

statute, which were not at issue in this motion. A.S.L.

Missouri Appeals Court Finds Judicial Bias Tainted Adverse Custody Decision Against Lesbian

Mother

The Missouri Western District Court of Appeals has reversed an adverse custody decision against

a lesbian mother by Cole County Circuit Judge Thomas J. Brown, on the ground that Judge Brown

should have disqualified himself from hearing the case due to the way he conducted a hearing on a

recusal motion by the mother. _Williams v. Reed_, 1999 WL 1219945 (Dec. 14).

When David Williams and Debra Reed Williams divorced, the court awarded joint custody, with

their child to reside with Ms. Reed and Mr. Williams to pay $81.50 a month in child support. Less

than a year after the divorce, David filed a motion to modify child custody and support, alleging four

"substantial and continuing changed circumstances" to justify the modification. Three of the four

circumstances pertained to allegations about Debra's "homosexual relationship" with Tracy Moore,

including allegations that Ms. Moore had a reputation for violence with same-sex partners, and that

this open same-sex relationship was not in the best interest of their daughter, Mercedes. Three days

prior to the scheduled trial on the motion, Debra's lawyer filed a motion for change of venue and

recusal of the judge. The basis for the motion on venue was that Mr. Williams is a local police

officer in Cole County and as such had undue influence over various people who would be involved

in the case. The basis for the motion on recusal was that Ms. Reed claimed to have heard that Judge

Brown was himself going through a divorce with child custody issues involving his wife being in

a same-sex relationship. At the recusal hearing, it became evident relatively quickly that Ms. Reed

had no real information about the judge's marital situation and had just been speculating, but Brown

indicated he had phoned his wife, who had denied the allegations and expressed outrage about them,

and that the judge had become personally offended by these charges. In addition, Brown ordered Ms.

Reed to take the stand to be quizzed by him about the source of her information, and threatened her

with contempt if she refused to do so without conferring first with her lawyer. Brown denied the

recusal motions. At the subsequent hearing, he granted Williams' modification motion, and ordered

Debra to pay $367.14 per month in child support, more than four times the amount of child support

that David had been ordered to pay in the prior disposition.

On appeal, the court unanimously agreed, in an opinion by Chief Judge Breckenridge, that Brown

should have recused himself, and that a new trial before a different judge should be held on the

modification order. The court found no problems with Brown's denial of the change of venue

motion, but found that the way he had handled the recusal hearing would have left a distinct

impression on a neutral observer that he was unable to preside as a neutral arbiter over the motion

to modify custody. Williams had argued in opposition to Reed's appeal that to reverse based on the

recusal hearing would be to provide litigants with a strategy for disqualifying a judge: make some

outrageous charge about the judge's personal life and provoke him or her into conduct at the recusal

hearing that suggests bias against the party who made the allegations. Breckenridge rejected this

suggestion, emphasizing that it was the way in which Judge Brown conducted himself at the hearing

that was at fault. He should not have called his wife to discuss the allegations, and once it was

established that Ms. Reed had no basis for them, he should have just denied the motion without

making statements about being personally offended on behalf of himself and his wife and without

subjecting Ms. Reed and her counsel to coercive, repetitious questioning. A.S.L.

11th Circuit Rejects Challenge to Prison Housing Policy

Plaintiff Frank Wayne was attacked by four or five other inmates while imprisoned in DeKalb

County Jail in 1993. He filed a lawsuit based on 42 U.S.C. Sec. 1983, claiming that his injuries were

the result of a policy of housing gay, bisexual and HIV+ inmates together without regard to their

violent propensities, and therefore the Sheriff's Department failed to protect him from injury in

violation of the Eighth and Fourteenth Amendments. _Wayne v. Jarvis, 1999 WL 1123046

(U.S.Ct.App., 11th Cir., Dec. 8).

The facts show that while Jarvis was awaiting his housing assignment, another inmate told him that

he would be placed in a medium security dorm (E-2-A) if he said he was homosexual. He then told

the housing classification officer that he was bisexual (falsely, he now claims) and was placed in

E-2-A, where the attack occurred. The district court granted summary judgment on the grounds that

Wayne failed to raise a genuine issue of material fact as to whether the Sheriff's Department had a

custom or practice of housing gay, bisexual and HIV+ inmates together without regard to their

violent propensities. Judge Carnes, writing for the 11th Circuit, affirmed the lower court's ruling.

The court set forth the standard for plaintiffs seeking redress from a municipality under 42 U.S.C.

1983. The plaintiff must show that a municipal policy or custom caused the plaintiff's injury. "A

policy is a decision that is officially adopted by the municipality or created by an official of such rank

that he or she could be said to be acting on behalf of the municipality A custom is a practice that

is so settled and permanent that it takes on the force of law." Sewell v. Town of Lake Hamilton 117

F.3d 499 (11th Cir. 1997). Judge Carnes found that Wayne failed to present sufficient evidence to

raise a genuine issue of material fact as to the existence of such a policy or custom, because he did

not identify a single inmate who was both gay, bisexual or HIV+ and should have been placed in a

higher security setting than E-2-A, a medium security dorm. Wayne did present evidence of an

inmate who was involved in four violent incidents, three occurring in E-2-A, but after the second

incident, he was temporarily removed. Carnes stated that this showed that prisoners sometimes were

removed from E-2-A based on their violent propensities. Furthermore, while it appears that the

Sheriff's Department transferred this inmate back to E-2-A knowing his violent propensity, the

decision to transfer back is not enough to establish a custom or policy regarding the housing of

violent inmates. Carnes cited cases to the effect that isolated incidents are not enough to demonstrate

a pervasive practice of constitutional violations.

The court further found that Wayne did not produce any evidence that only gay, bisexual or

HIV-positive inmates were placed in E-2-A. One official testified that known homosexuals were

housed there, but not exclusively, and another testified that mentally ill inmates were also placed

there, regardless of their sexual orientation or HIV status. The housing classification form of one of

the Wayne's attackers indicated that he was put in E-2-A because he was suicidal. The form did not

indicate that he required special housing due to sexual preference, as did Wayne's form

Apparently, the Sheriff's Department viewed E-2-A as a "special needs" dormitory. The judge

concluded that the plaintiff failed to present sufficient evidence to raise a genuine issue of material

fact as to the existence of a policy or custom of housing inmates based solely on their sexual

preference or HIV status.

The district court also granted summary judgment to eight deputy sheriffs named as defendants who

were added to the complaint after the statute of limitations ran out. Plaintiff Wayne did not find out

their identity until Sheriff Jarvis filed his answer to Wayne's interrogatories, which was three months

after the expiration of the statute of limitations. At that time, he amended his complaint to add them

as parties instead of the original defendants, "Seven Unknown Deputy Sheriffs." Wayne relied on

Rule 15(c)(3) of the F.R.C.P., which states that "an amendment of a pleading relates back to the date

of the original pleading when the amendment changes the party and the party to be brought in by

amendment knew or should have known that, but for a mistake concerning the identity of the

proper party, the action would have been brought against the party." Carnes was not persuaded that

the plaintiff's lack of knowledge as to the deputies' identities was a mistake concerning the identity

of the proper party. He cited cases from several circuits holding that amending a complaint to

replace a John Doe defendant with his correct name does not cause the complaint to relate back to

the original filing date. The judge was very unsympathetic to Wayne's contention that as a pro se

litigant and a prisoner, his complaint should be liberally construed. The judge blamed his failure to

file within the statute of limitations on his dilatoriness, not on his lack of a lawyer. Judge Carnes

affirmed the district court ruling that this amendment constituted a change in the parties sued, and

thus his claims against the deputies were barred by the statute of limitations. _Elaine Chapnik_

Connecticut Trial Court Allows Second-Parent Visitation Case to Proceed

Finding that the break-up of a non-traditional family may confer standing upon a lesbian co-parent

to seek visitation with the biological child of her former partner, Connecticut Superior Court Judge

McLachlan refused to dismiss such an action in _Laspina-Williams v. Laspina-Williams_, 1999 WL

1256354 (Conn. Super., New Haven J.D., Oct. 19).

Lisa and Cheryl lived together in a committed relationship for about ten years. In 1990, they jointly

purchased a house in which Cheryl continues to reside with their daughter. They discussed having

a child and Lisa unsuccessfully attempted to conceive through donor insemination for a period of

about 18 months. They then agreed that Cheryl would attempt to become pregnant, which she did

via donor insemination. Lisa accompanied Cheryl to all insemination procedures and midwife visits.

Their child was born September 9, 1994, and Lisa was present at the birth. Lisa quit her full-time

job when their daughter reached eleven months and stayed home to care for the child, with whom

she bonded as a parent. The child refers to Lisa as "Mommy." Lisa claims to have contributed to

the child's financial support, including paying health insurance premiums and purchasing clothing,

paying private school tuition, and shouldering other normal family expenses. In 1997, upon Cheryl's

application to the Probate Court, Lisa was appointed co-guardian of the child. However, in October

1998 the relationship between the two women ended and Lisa moved out of the house.

Lisa was able to maintain contact and visitation with the child until March, 1999, when Cheryl

terminated such contact and filed a new action in the Probate Court seeking to terminate Lisa's

guardianship. Lisa filed this action in the Superior Court, seeking an order of visitation, and Cheryl

moved to have it dismissed, asserting lack of standing and that the Probate Court proceeding was

the appropriate forum in which to settle the visitation issue.

Judge McLachlan rejected the argument that Lisa lacks standing to seek a visitation order.

Connecticut law does not restrict visitation rights to biological or adoptive parents, but does provide

that the court's jurisdiction on visitation issues only arises upon some disruption of the family unit.

Cheryl was relying on the Connecticut Supreme Court's decision in _Castagno v. Wholean_, 684

A.2d 1181 (1996), in which that court found that because there was no disruption in the family unit,

the court lacked jurisdiction to consider a visitation request by grandparents who were being

excluded from contact by the children's parents. But McLachlan found that in this case, there is a

disruption in the family unit -- the breakup of Lisa and Cheryl. Seizing upon several prior decisions

of Connecticut courts recognizing the emergence of non-traditional families over recent years,

McLachlan stated agreement with "the reasoning and conclusions of the aforementioned cases" and

concluded that, "based on the allegations of the plaintiff's complaint and the affidavits presented,

the plaintiff has standing giving the court subject matter jurisdiction."

"Section 46b-59 does not define the relationship necessary to give standing," explained McLachlan.

"Without addressing or labeling the status of the relationship of the parties, the defendant allowed,

even encouraged, the plaintiff to assume a significant role in the life of the child such that she is a

party entitled to seek visitation with the child."

McLachlan also rejected the argument that the matter should be resolved in the Probate Court,

finding that both the Superior Court and the Probate Court have jurisdiction to deal with visitation

issues. "It is somewhat disingenuous for the defendant to urge that visitation be resolved as part of

the guardianship she needs to terminate," McLachlan commented. A.S.L.

Connecticut Trial Court Rejects Technical Objections to Sexual Orientation Discrimination Suit

Connecticut Superior Court Judge Rittenband (Hartford J.D.) rejected technical objections to the

filing of a sexual orientation discrimination suit in _Bogdahn v. Hamilton Standard Space Systems

Int'l, Inc._, 25 Conn. L. Rptr. 183, 1999 WL 1122518 (Conn. Super., Nov. 30), finding that the

procedural requirements of the state's civil rights law should be broadly construed to effectuate the

legislative intention to allow discriminatees to bring lawsuits based on timely-filed claims.

The plaintiff is the administrator of the estate of Paul C. Pelletier, a gay man who was driven to

commit suicide by vicious anti-gay harassment he suffered on the job at Hamilton Standard.

Pelletier originally filed his complaint alleging sexual harassment and discrimination on the basis

of sexual orientation with the Connecticut Commission on Human Rights and Opportunities on June

1, 1994, alleging that he had complained to his employer about the anti-gay activities of his co-

workers, Mark Bond and Bruce McGarry, but had obtained no relief. Pelletier alleged "that Bond

and McGarry ridiculed and harassed Pelletier because of his sexual orientation, he was called

derogatory names such as `faggot' by McGarry and Bond, and, on repeated occasions in the spring

of 1994, the mens' room at Hamilton was defaced with derogatory slurs related to Pelletier's sexual

orientation." In his superior court complaint, the plaintiff alleges that Pelletier committed suicide

on June 16, 1994, as a direct result of the sexual harassment and discrimination described in his

complaint filed with the Commission.

Hamilton and the individual named defendants moved to strike various counts in the complaint. The

motions were premised primarily on alleged technical errors by the plaintiff and the Commission in

the matter of issuing the "release to sue" required as a predicate for filing a lawsuit under the civil

rights law, and also on the failure of the complainant to have cited particular sections of the statute

in his original administrative complaint. Judge Rittenband found that the statute had some internal

inconsistencies that might lead one through a literal application of its terms to find the lawsuits

against co-workers are precluded or that the failure to cite a particular provision in the administrative

complaint would preclude a later lawsuit based on that provision, but ruled that these technical

problems should yield to the overall purpose of the statute. The original administrative complaint

included all the factual allegations necessary to state the claims that are alleged in the court

complaint, and any technical fault with the release to sue might be attributable to the Commission

as much as to the plaintiff. There was no problem of notice here, since the substance of the

allegations put the defendants on notice of the nature of the claims being asserted, the alleged

discrimination was unlawful at the times it was alleged to have been committed, the administrative

charge was timely filed, and the plaintiff obtained the release to sue (on January 2, 1997) prior to

filing the instant lawsuit. Thus, the motions to strike were denied. Judge Rittenband prefaced the

opinion with the statement that this "appears to be a case of first impression in Connecticut."

Patrick Tomasiewicz represents the plaintiff. A.S.L.

Legislative Notes

California's Knight Initiative (Proposition 22) which would ban same-sex marriage in the state will

likely have a new name when it goes on the ballot in March. Ruling from the bench at a hearing on

Dec. 8, Sacramento Superior Court Judge James T. Ford agreed with arguments by Lambda Legal

Defense Fund on behalf of the League of Women Voters of California that the name on the

proposition as submitted by Sen. Knight, "Definition of Marriage," would be misleading to voters,

and that instead the measure should be titled "Limit on Marriages" as decreed by California Attorney

General Bill Lockyer, since its purpose is to limit the availability of marriage. The law firm of

Heller Ehrman White & McAuliffe collaborated with Lambda in presenting the views of the LWV

in defense of the Attorney General's decision, which had been challenged in court by supporters of

Proposition 22. _Stutzman v. Jones_, No. 99-CS-02549. _LWV Press Release_, Dec. 8; _Los

Angeles Times_, Dec. 9. * * * Meanwhile, in Colorado, the Secretary of State's office has approved

a proposed constitutional amendment to limit recognized marriage in Colorado to opposite-sex

couples. There is a 30-day challenge period during which the Secretary's office will evaluate any

objections to the proposal, and then will follow a petitioning period during which its proponents will

need to gather about 64,000 signatures from registered voters to get it on the ballot. _Omaha World-

Herald_, Dec. 17.

Miami-Dade County (Florida) Commissioners voted Dec. 7 to ban restaurants from automatically

adding tips because of a customer's race, gender, marital status, sexual orientation, or because the

customer has children. The action came in response to a widely-publicized Oct. 23 incident where

a restaurant added a 15% service charge to the bill of Charles Thompson, an African-American

customer, based on its view that African-Americans are inadequate tippers. Thompson filed charges

with the State Human Rights Commission, which initiated a lawsuit that was settled by the restaurant

agreed to establish a sensitivity program. _Associated Press_, Dec. 10.

The Westchester County, New York, Board of Legislators voted 12-5 on Dec. 13 to establish a

county Human Rights Commission with jurisdiction over complaints of discrimination in housing,

employment, credit or use of public accommodations on the basis of race, sex, age, national origin

or sexual orientation. County Executive Andrew J. Spano, a supporter of the measure, was expected

to sign it. Almost all the testimony offered at the public hearing prior to passage was against the

inclusion of sexual orientation; most of this testimony was stimulated by several religious

organizations that urged their followers to attend the hearing and testify. _N.Y. Times_, Dec. 14.

A.S.L.

Litigation Notes

Private Calvin Glover of the U.S. Army was convicted in a court martial of murdering Pfc. Barry

Winchell in an outrageous homophobic attack. The cowardly Glover bludgeoned Winchell to death

with a baseball bat while Winchell was sleeping in military barracks. Glover maintained he was

egged on by Specialist Justin Fisher, who supplied him with the baseball bat when Glover had been

drinking, urging Glover to avenge himself on Winchell for a beating Winchell administered Glover

in response to anti-gay taunting. On Dec. 9, Glover was sentenced to life imprisonment, with the

possibility of parole; he will also be demoted and dishonorably discharged from the service.

National press coverage of the Glover trial, together with coverage of the Steve May investigation

(see below), led to a renewed focus on the flaws of the military "don't ask, don't tell" policy, as there

was speculation that this tragedy would not have occurred had Winchell been able to complain about

anti-gay harassment to his commander rather than resorting to self-help to protect himself from

Glover. In the ensuing discussions, President Clinton announced that he believed the "don't ask,

don't tell" policy was seriously "out of whack," and Defense Secretary William Cohen directed the

various military branches to adopt more forceful anti-harassment policies. However, it did not

appear that political leaders in the U.S. will move anytime soon to abandon the increasingly bankrupt

policy, under which discharges of lesbian and gay service members have more than doubled since

the policy was instituted in 1993. The two leading Democratic candidates for the presidency, Vice

President Al Gore and former Senator Bill Bradley, have both called for an end to the ban on military

service by openly lesbian and gay people, as has First Lady Hillary Clinton, who is seeking the U.S.

Senate seat in New York to keep her occupied after her husband's term expires. _NY Times_, Dec.

9 & 14; _Chicago Tribune_, Dec. 10.

The Massachusetts Supreme Judicial Court has upheld the first degree murder conviction of Timothy

Duguay, then 23, for stabbing to death a 17-year-old man with whom he had a five-year homosexual

relationship that appeared to be breaking up. _Commonwealth of Massachusetts v. Duguay_, 1999

WL 1101171 (Dec. 7). Duguay and the victim, who were neighbors and lived just a few houses

away from each other, began their sexual relationship when Duguay was 17 and the victim was 12.

According to Justice Abrams' opinion for the court, "The victim alternated between maintaining

intimacy with the defendant and distancing himself from the defendant." In the period leading up

to the murder, they had "several disagreements" and Duguay had obtained a court order requiring

the victim to pay back some money Duguay had lent him. Duguay let the victim know that he would

rather have the victim spend the night with him than get his money back. The victim and Duguay

spent that Thursday night together and had sex, and made a date for the following Sunday night. But

the victim stood up Duguay and went out with his girlfriend instead. The next day, after Duguay had

come around the victim's house several times demanding to know where the victim had been the

night before, the victim died after being stabbed at his home 21 times in his neck, face and chest.

Duguay had left a voicemail message on the victim's mother's telephone (the victim lived at home

with his mother and several other relatives), revealing their homosexual relationship and saying that

the victim was "going to answer for the head games he's played with me." Duguay made inculpatory

statements to the police officers who picked him up. At trial, his attorney tried to suggest that there

was some sort of conspiracy to frame him. (There was evidence that an uncle of the victim who

resided in the house was a drug dealer, and that the victim slept with a knife under his pillow.) On

appeal, he sought to challenge various evidentiary rulings without success. What a sad story....

The _Albuquerque Journal_ reported Dec. 29 that the New Mexico Supreme Court has affirmed the

murder conviction of Arthur Lopez in connection with the stabbing death of Noah Rodriguez, a

popular Santa Fe school teacher, on October 13, 1996. Lopez is serving a life sentence in the

murder. Lopez's appeal argued that the trial judge improperly refused to instruct the jury on self-

defense. Lopez had claimed he was defending himself from sexual advances by Rodriguez. Chief

Justice Pamela Minzner noted that Lopez "inflicted 54 stab wounds upon Rodriguez and crushed his

skull. These repetitive, violent actions suggest conduct fueled by hatred or by rage or other strong

emotion, not by fear." Thus, the evidence did not provide a basis for instructing the jury to consider

self-defense as mitigating the charge.

The _Salt Lake Tribune_ reported Dec. 4 that the lack of coverage for anti-gay hate crimes under

Utah's criminal law required 3rd District Judge William Barrett to dismiss felony charges against

Brian Hitt and Jason Millard, who were alleged to have beaten two men and terrorized three others

because of their sexual orientation. Hitt and Millard yelled "faggot!" as they went after their victims,

who were clearly targeted because of their perceived sexual orientation, but they will face only

misdemeanor counts of assault and criminal mischief. Utah has a hate crimes law, but the legislative

debate became so divisive around the issue of sexual orientation that the legislature decided to

remove all specific categories from the law, leaving it virtually useless in criminal prosecutions,

according to Judge Barrett, who labeled the law "incomplete" in ruling that the charges filed by the

prosecutor had to be reduced.

Although the Pennsylvania state government passed a law exempting state and state-related

universities from compliance with any local ordinance that might require the extension of same-sex

benefits to employees, the Pittsburgh Commission on Human Rights announced Dec. 8 that it would

not dismiss a complaint filed against the University of Pittsburgh alleging a discriminatory denial

of such benefits. According to Commission Member Pamela Golden, who wrote a brief order

denying the motion on behalf of the Commission, the state law might preclude the Commission from

demanding an extension of benefits as a remedy, but it would not bar the Commission from

adjudicating whether the University's policy is discriminatory. The ACLU, which is representing

the complainants before the Commission, argued that the state law, hastily drafted, may not even

apply to the case, since the local ordinance under which the charges were filed doesn't mention

benefits but simply forbids discrimination in housing and employment. _Pittsburgh Post-Gazette_,

Dec. 9.

The new year begins with lawsuits challenging the constitutionality of sodomy laws pending in

Louisiana, Arkansas, Virginia, and Puerto Rico. In mid-December, the Virginia Court of Appeals

agreed to hear the appeals of nine men who were convicted of soliciting sodomy in a sting operation

carried out by undercover vice cops in a Roanoke park. Virginia's sodomy law forbids all anal or oral

sex, regardless of consent. In his petition to the court of appeals seeking permission to appeal the

convictions of his clients, attorney Sam Garrison specifically targeted the law for constitutional

attack, arguing that the case involves "the fundamental right of 4.5 million adult Virginians to be free

from governmental intrusion into areas where they have a reasonable expectation of privacy."

Virginia is one of just 17 states that still maintain laws against private consensual sodomy, and some

of those only ban the act for same-sex partners. _Roanoke Times_, Dec. 15.

The _Chicago Tribune_ (Dec. 4) reported that Cook County, Illinois, Circuit Judge Thomas P.

Durkin has denied a temporary restraining order that would have blocked the United Methodist

Historic Campground in Des Plaines, Ill., from evicting a couple who had hung signs in their cottage

window supporting lesbian and gay rights. Durkin concluded that issuing such an order would

violate the 1st Amendment rights of the campground operators. William and Nannette Graham had

hung the sign in their window to protest the decision by the campground to refuse to rent a cottage

to a gay male couple, Rob Carroll and Russell Elenz, based on their sexual orientation. The

campground administration denies that the turn-down of Carroll and Elenz was due to that factor.

A.S.L.

Law & Society Notes

The protests mounted by a variety of groups during the World Trade Organization meeting in Seattle

in December took on special interest for lesbians and gay men because of the threat to operation of

city ordinances in Seattle, San Francisco and Los Angeles that bar those cities' governments from

doing business with any organization that does not provide benefits for the non-marital domestic

partners of their employees. Equality Washington, a state-wide gay rights organization, pointed out

that the Agreement on Government Procurement, enforced through the World Trade Organization,

forbids governments that have adhered to the agreement from placing any conditions on their

procurement contracts that do not relate directly to the goods or services to be provided, and that

there is agitation within the WTO to extend the agreement to the procurement practices of states and

cities. Such an action could severely undermine the enforcement of the domestic partnership

ordinances. _Equality Washington_ Press Release, Dec. 6.

It wasn't even close: San Francisco Mayor Willie Brown won re-election over his openly-gay

challenger, Board of Supervisors President Tom Ammiano, with 60% of the vote, based on the count

prior to opening of absentee ballots, which wasn't expected to change much. Ammiano had jumped

into the race as a write-in candidate at the last minute, and came 4th in a crowded field during the

general election in November, forcing Brown into a one-on-one run-off, which was held Dec. 14.

Ammiano's being gay was apparently not much of an issue in the campaign, since Brown is about

the most pro-gay mayor in the United States. The race turned more on the fears of the San Francisco

business community about Ammiano's far-leftist economic views, which inspired businesses to

donate huge sums to political action committees to run anti-Ammiano and pro-Brown advertisements

in the weeks prior to the run-off. Also, the city's Republicans and moderates, who otherwise would

never think of supporting him, had nowhere to go in the run-off except to the staunchly liberal

Brown. In the end, Brown outspent Ammiano by 10-1, and his supporters' phone banks were able

to contact every San Francisco registered voter multiple times. _Associated Press_, Dec. 15.

Backsliding on partner benefits: When Exxon and Mobil merged, fears were expressed about the

future of the domestic partnership benefits program that Mobil had recently instituted for same-sex

partners of employees. The fears were well-grounded. On Dec. 15, the merged corporation, to be

known as Exxon Mobil Corp., announced that it would only offer health benefits to "legally

recognized" (i.e., married) partners of employees, although it would carve out those Mobil

employees who survived the merger and had begun receiving partnership benefits and would

continue the benefits for those employees only. According to a corporate spokesperson, Tom

Cirigliano, the motivation had nothing to do with money, but was motivated by the corporation's

concerns about inquiring into the personal relationships of its employees. Cirigliano also stated a

fairness concern, contending that giving benefits to same-sex partners but not to unmarried opposite-

sex partners was discriminatory. (Cirigliano didn't mention the obvious cure for that problem...)

Cirigliano did state that in countries where unmarried couples are legally recognized, such as

Denmark, for example, the corporation would provide benefits to those in legally-recognized

relationships. There was no explanation as to why the myriad municipal domestic partnership

registries in the U.S., or the state systems in California and Hawaii, would not qualify. BNA _Daily

Labor Report_ No. 241, 12/16/99, p. A-6/7.

"Who's Asking?" When Arizona legislator Steve May referred to himself as gay during a legislative

debate, he didn't consider the revelation particularly newsworthy, since his sexual orientation had

been known during his election campaign. But Lt. Steve May of the U.S. Army Reserve (the same

person) apparently violated Defense Department regulations by pronouncing himself an adherent of

the love that dare not speak its name (at least in military circles, where fear of homosexuality runs

rampant). After spending many months and thousands of taxpayer dollars "investigating" whether

May was in violation of the military policies, Major Eileen Norton issued a report, concluding that

May's commander has no option but to recommend initiation of a separation action, this despite an

affidavit given by May's commander, Captain Stephen Sherbondy, stating, "May's performance as

an officer under my command has been nothing less than outstanding since he joined the unit." Of

course, a Defense Department that is so starved for new recruits that it is running advertisements on

the radio offering $20,000 cash signing bonuses must quickly rid itself of any outstanding members

who mention (while off duty and carrying out legislative functions purportedly protected by the 1st

Amendment) that they are gay. May has announced he will sue if separation proceedings occur.

_Associated Press_, Dec. 12.

School officials in Davis, California, have barred the Boy Scouts of America from any activities in

school facilities because the organization bars membership by gay people and atheists. _Washington

Times_, Dec. 11.

Shenendehowa, N.Y., school officials announced that the local high school would promulgate a new

policy against harassment that would include sexual orientation. The policy responded to concerns

raised by the mother of a gay student who had suffered harassment, which she voiced at a Nov. 9

school board meeting. According to a Dec. 3 article in the _Albany Times Union_, this policy

would make the Shenendehowa High School one of the few in New York State that explicitly bans

anti-gay harassment. The Coalition for Safer Schools of New York State plans expressed support

for a legislative proposal, expected to be introduced this year in the New York legislature, that would

mandate the adoption of anti-discrimination codes for all public schools that would include sexual

orientation along with other categories, and would be called the "Dignity for All Students Act."

California Governor Gray Davis has appointed Daniel Zingale, an openly-gay man known nationally

as a lobbyist on AIDS and gay rights issues, to run the new state agency that will oversee the

operation of managed care systems. Prior to his service with AIDS Action Council and Human

Rights Campaign in Washington, Zingale had served as Davis's chief deputy when Davis was

California State Controller. The new Department of Managed Care will not even come into

existence until July, so Zingale's initial task will actually be to create a new government agency

intended to take on the massive task of regulating the financing of health care in the nation's largest

state. _Los Angeles Times_, Dec. 7.

Bexar County, Texas, Clerk Gerald Rickoff was asked by some same-sex couples to accept for

filings their sworn statements of domestic partnership, as the county clerk has been doing in Travis

County ever since the Austin city council passed a domestic partnership ordinance (which was later

repealed by voters). Rickoff, uncertain how to proceed, asked for a ruling from Texas Attorney

General John Cornyn, with a predictable result. On Dec. 17, Cornyn issued an Attorney General's

Opinion stating that a declaration of domestic partnership is not a document "required or permitted

by law to be recorded. Accordingly, county clerks are not required to accept them for recording."

_Houston Chronicle_, Dec. 18.

Trustees of the University System of New Hampshire voted Dec. 2 to extend benefits entitlement

to same-sex partners of university employees, probably beginning Feb. 2 if all the details can be

settled by then. The vote was 21-1 to direct the Office of the Chancellor to develop the requisite

policies. _Manchester Union Leader_, Dec. 3.

Proposed European Community Legislation Bans Sexual Orientation Discrimination in Employment

On Nov. 26, the European Commission (the executive of the 15-country European Community)

made public its "Proposal for a Council Directive ... establishing a general framework for equal

treatment in employment and occupation_ (available at

proposed Directive would be adopted under the authority of the new Article 13 of the European

Community Treaty, which came into force on May 1, 1999 (see June 99 Law Notes). The proposed

Directive would prohibit direct discrimination (disparate treatment) and indirect discrimination

(disparate impact) as regards access to employment and occupation (including promotion, vocational

training, and employment and working conditions, including dismissal and pay) and membership of

organizations of workers, employers or professionals. The prohibited grounds covered by the

Directive (Article 1) would be racial or ethnic origin, religion or belief, disability, age or sexual

orientation (sex is already covered by existing E.C. legislation).

Article 2(3) would provide that "[h]arassment of a person related to any of the discriminatory

grounds and areas referred to in Article 1 which has the purpose or effect of creating an intimidating,

hostile, offensive or disturbing environment, shall be deemed to be discrimination ..." The only

express exception (apart from one applying only to age discrimination) would be where "by reason

of the nature or context in which particular occupational activities are carried out, such a

characteristic constitutes a genuine occupational

qualification." The explanatory memorandum, which says that this exception "should be construed

narrowly," gives only one example: "it would be justified for an institution established for religious

purposes to impose occupational requirements which are necessary for the fulfilment of the duties

attached to the relevant post." As yet, there

is no exception for employment benefits, which are clearly covered as "pay." A "positive action"

provision (Article 6) would permit "measures intended to prevent or compensate for disadvantages

concerning persons to whom any of the discriminatory grounds in Article 1 apply."

The proposed Directive can only be adopted if all 15 Member States of the E.C. vote for it in the

Council of Minsters (the main legislative body of the E.C.). A single Member State can veto it. If

the Directive is adopted, it will represent a major advance for the seven Member States which

currently have no legislation banning sexual orientation discrimination in employment: Austria,

Belgium, Germany, Greece, Italy, Portugal, and the United Kingdom. Although the Directive would

only apply to employment, its scope could be extended in the future. Existing E.C.

legislation on sex discrimination applies to some forms of social security. And the Commission's

parallel "Proposal for a Council Directive ... implementing the principle of equal treatment

between persons irrespective of racial or ethnic origin" (see URL above) would apply not only to

employment but also to "social protection and social security, social advantages, education

(including grants and scholarships), access to and supply of goods and services, and cultural

activities." _Robert Wintemute_

International Legal Notes: The English-Speaking World

British Defense Secretary Geoff Hoon announced Dec. 12 that the Blair government has definitely

decided to comply with the recent ruling by the European Court and end the formal ban on military

service by "homosexuals." Apparently pulling back from trial balloons about introducing a version

of "don't ask, don't tell" or a conduct code that would require absolute celibacy, Hoon stated that

a new conduct code would focus on banning sexual activity between on-duty personnel. "Someone's

sexuality is a private matter," said Hoon. "People are entitled to a private life. A new code of

conduct is, therefore, the right way of dealing with this question, but I want to make sure that any

solution to this problem does not jeopardize the effectiveness of the armed forces." _The Times of

London_ reported on De. 13 that the new code would be drawn up during January, but a Defense

spokesperson said no specific timetable had been adopted for ending the formal service ban. _New

York Times_, Dec. 14.

The British press seemed fascinated during December with the story of Barrie Drewitt and Tony

Barlow, a prosperous gay male couple who hired Rosalind Bellamy, a California resident, to be the

surrogate mother of their children. Another woman donated an egg, which was then fertilized using

sperm donated by both men. Bellamy gave birth to twins, a girl and a boy, in a hospital in Modesto

on Dec. 9. Drewitt and Barlow intend to remain in California until they can be assured that they will

be able to bring the twins back with them to their home in Danbury, Essex, with legal recognition

of their parental status and the twins' U.K. citizenship. They were identified as Parent 1 and Parent

2 on the twins' birth certificates, and as they were born in the U.S., the twins are U.S. citizens.

Various departments of the British government were quoted as passing the buck regarding which

office or ministry is responsible to make a decision about their status. _Daily Telegraph_, Dec. 15;

_Daily Mail_, Dec. 13.

The Irish Republic's Equality Authority has appointed an advisory committee on equal opportunities

for gays and lesbians, which will explore the Authority's role in addressing issues of discrimination

and exclusion. Niall Crowley, CEO of the Authority, said: "Our goal is to secure and realize the

rights of all individuals and groups covered by the legislation" on non-discrimination which was

recently enacted. _Irish Times_, Dec. 3.

The South African government plans to propose a new law this year, somewhat strangely titled the

"Realignment of Sexual Orientation Bill," which will supplant earlier laws in dealing with requests

to change birth certificates as a result of sex-reassignment procedures. Under the proposed law,

which was drafted in response to a Law Commission report, a person who has had a sex change

through surgical and medical treatment will be able to apply to the director-general of home affairs

to have their birth register entry changed to reflect their new sex. Although persons who had sex

changes are already able to get changes on documents such as drivers licenses and passports under

prior laws dating from 1963 and 1992, the new law will go the final distance to allowing alteration

of the most relevant record for establishing such a change. _Cape Argus_, Dec. 13.

The final 1999 session of Australia's parliament ended in a flurry of debate over homosexuality, as

the Howard government joined with other opponents to block an attempt to end tax and

superannuation discrimination against same-sex couples, and the prime minister made clear his

opposition to any legislation that would extend formal recognition on a national basis to same-sex

partners. (Australia already extends some recognition in the context of immigration rights.)

Democrats Senator Andrew Bartlett had moved an amendment to a superannuation bill that would

have required the government to compile a list of legislative changes that would be needed to ensure

equal treatment of same-sex couples, sparking the debate. _Sydney Morning Herald_, Dec. 10;

_Canberra Times_, Dec. 10.

In New Zealand, the Law Commission issued a study paper to the Ministry of Justice recommending

that same-sex marriages be recognized in law by a system of registration that would put them on the

same legal footing as opposite-sex marriages. The Commission also recommended that laws

currently applied to heterosexual de facto (unmarried) couples should also apply to those gay couples

who don't choose to register. The Commission opined that simply extending the existing marriage

laws to include same-sex couples would cause "unnecessary and understandable offence, but a

registration system would avoid giving offence while conferring rights and obligations `virtually

identical' to those in marriage," according to a description of the report by the _Christchurch Press_

(Dec. 9). Prime Minister-Elect Helen Clark supports giving legal recognition to gay and lesbian

couples. Openly-gay Member of Parliament Chris Carter said he did not advocate opening

traditional marriage to same-sex couples, because the issue was "too emotional." The outgoing

Prime Minister, Jenny Shipley, has also supported legal recognition short of actual marriage.

On Dec. 15, the Toronto, Canada, School District Board voted to adopt a new equity action plan for

the public schools mandating a respect for all those in the school system, regardless of gender,

socioeconomic background, disability or sexual orientation. The Board suggested that school

authorities should examine teaching materials to determine whether they are biased, ensure that

school libraries reflect the full range of Canada's lesbian and gay community, disabled and

socioeconomic classes, and support student leadership program to combat homophobia. _Toronto

Star_, Dec. 16. Perhaps somebody should arrange to have these Toronto school board members meet

with the school boards in Orange County, California, and Salt Lake City, Utah, to discuss appropriate

ways to deal with the reality that there are lesbian and gay kids in the schools and lesbian and gay

teachers on the staff whose rights need to be protected.

The gay-friendly Supreme Court of Canada will next consider whether Trinity Western University,

which identifies itself as a religious institution, is privileged to require its students to sign a pledge

stating they will not engage in homosexual conduct as a condition of their participation in a proposed

teacher-education program. The British Columbia College of Teachers, an accrediting agency for

such programs, charged that this constituted unlawful discrimination, but was rebuffed by the British

Columbia Supreme Court and the Court of Appeal. _Globe and Mail_, Dec. 10.

The Immigration Commissioner of the Philippines, Rufus Rodriguez, has denied the request of a

German business consultant to be allowed to stay in the country past the expiration of his

employment contract with a Manila-based church group on the ground that he is in a same-sex

relationship with a Philippine citizen. Irmgarrd Ehlers, the disappointed applicant, wrote to

Rodriguez, "Given your country's democratic Constitution, I am seeking permission to allow me to

reside in the Philippines as a German citizen on the recognition that I am in a same-sex partnership

with a Filipino." Ehlers added that Germany and other European Union countries now extend

residency rights to same-sex partners of their citizens. But the Bureau of Immigration turned down

the request, stating that only foreigners who are legally married to Filipino citizens are entitled to

residency status. _Singapore Straits Times_, Dec. 15. A.S.L.

AIDS & RELATED LEGAL NOTES

Federal Court Dismisses HIV Discrimination Claim, But Makes Important Ruling on Disabled Status

U.S. District Jude Reinhard (N.D.Ill.) has granted summary judgment for the employer in a pending

HIV-discrimination case, but in the course of so doing has rendered an important ruling finding

Americans With Disabilities Act coverage for asymptomatic people with HIV infection. _Rotter v.

Brinker Restaurant Corp._, 1999 WL 113982 (Dec. 10).

Konrad T. Rotter worked for about six months as a waiter at defendant's restaurant, Chili's Grill and

Bar, prior to his discharge for insubordination. Rotter was diagnosed HIV+ in September 1994, and

was hired by Chili's in Rockford, Illinois, in March 1995. Managers at the restaurant received an

anonymous phone call on May 4, 1995, telling them that Rotter suffered from tuberculosis or

hepatitis, and also a visit from a customer making a similar allegation. The next day, the three

supervisors in the restaurant met with Rotter and confronted him with these allegations. He denied

having either of those maladies, but told them he was HIV+. One of the managers called the parent

company's Corporate Risk Management Department to determine how to deal with Rotter, and was

told that Rotter should be treated the same as any other worker and his HIV status kept confidential.

Apparently this advice was followed; Rotter continued to be assigned regular shift work, and the

only incidents giving rise to concerns were instances where he suffered cuts that needed bandaging.

Once he was sent home from work early when a manager determined that he had not adequately

contained the bleeding from a cut. Although the restaurant continued to receive reports about Rotter

suffering from various diseases, and also encountered some rumors that they had a waiter with AIDS

working at their restaurant, these rumors and reports died down after a few days. The managers

refused to take any action to deal with the rumors, telling Rotter that this was "his problem and to

keep it that way."

On September 22, 1995, a problem developed between Rotter and one of the managers. Rotter's

section of the restaurant had closed for the night, but a sudden stream of additional customers caused

the manager to decide to reopen Rotter's section and ask him to take another table. Rotter agreed

to take one table, but rebelled when he was asked to take a second. The manager told him he could

either take the table or "hit the bricks," and discharged him when he refused.

Rotter sued Chili's corporate parent, Brinker Restaurant Corp., for disability discrimination under

the ADA, alleging both the time he was sent home early and his discharge as HIV-related

discrimination, and also raising claims about alleged adverse employment references and about the

local managers' disclosure of his HIV status within the company. Brinker moved for summary

judgment.

Judge Reinhard began the analysis with a discussion of the prima facie case under the ADA. The

first prong is an allegation that the plaintiff is a person with a disability. Chili's argued that as

Rotter, a gay man, testified in his deposition that he had no plans to have any children, he could not

be considered a person with a disability under the Supreme Court's decision in _Abbott v. Bragdon_,

524 U.S. 624 (1998), in which the Court found that an HIV+ woman was disabled because of the

impact of her condition on her reproductive activity. Reinhard stated that "the court disagrees with

Chili's' [sic] narrow reading of _Bragdon_. The Supreme Court in _Bragdon_ specifically noted

that the respondent's claim had been limited to the argument that the HIV infection placed a

substantial limitation on her ability to reproduce and bear children. 118 S.Ct. at 2205. Thus, it

limited its discussion accordingly, but had `little doubt that had different parties brought the suit they

would have maintained that an HIV infection imposes substantial limitations on other major life

activities.' The Supreme Court's discussion of HIV and its progressively debilitating and eventually

fatal impact. . . clearly shows the disease will substantially limit more than the major life activity of

reproduction. . . Thus, at the very least, questions of fact exist as to whether Rotter is disabled within

the meaning of the ADA. The court assumes, for purposes of this motion for summary judgment,

that he is." The court also noted that Rotter's deposition testimony left unclear whether his decision

not to father a child was based on his sexual orientation or on the risk of transmitting the disease to

his child and the likelihood his child would be without a parent, thus leaving some ambiguity even

on the issue of reproduction.

This holding is quite significant in rejecting a narrow reading of _Bragdon_ and finding that a

plaintiff's status as a gay man is not dispositive of the issue disability.

However, Rotter suffered summary judgment because he was unable to allege, at least to the court's

satisfaction, any basis for connecting his discharge with his HIV status. Reinhard found that having

been sent home early from one shift in the finger cut incident was not a significant enough adverse

employment impact to constitute discrimination, and that Chili's had adequately shown that

insubordination was grounds for immediate termination under its employment policies, without any

resort to warnings or progressive discipline. Furthermore, Reinhard found no basis other than

conclusory allegations for the charges regarding bad job references, and that the limited disclosures

to corporate higher-ups concerning Rotter's HIV status were legitimately related to consultations

within the company about how to treat him. Actually, from Reinhard's description of the factual

allegations in the record, it sounds as if Chili's followed the advice of corporate headquarters by

allowing Rotter to work regular shifts with no restrictions, and by keeping his HIV status

confidential.

Rotter is represented by attorney Patricia S. Ball of Schaumburg, Illinois. A.S.L.

Federal Court Denies Summary Judgment in Perceived HIV-Discrimination Housing Case

U.S. District Judge Kessler (D.D.C.) refused a real estate agent's motion for summary judgment in

a Fair Housing Act suit alleging discrimination on the basis of perceived HIV status. _Neithamer

v. Brenneman Property Services, Inc._, 1999 WL 1249716 (Dec. 17). Plaintiff William Neithamer

alleged disability discrimination, under the FHA, and both disability and sexual orientation

discrimination under the D.C. Human Rights Act.

Neithamer contacted the defendant real estate agency in September 1997 when he was looking for

a new house to rent. He was shown a townhouse in Northwest D.C. that he liked, and he completed

a rental application. He told Padraig Wholihan, the agent, that his credit report would show that he

failed to make some payments to creditors a few years earlier. He said this was due to an emergency

situation, when he devoted his resources to paying medical bills for his same-sex lover, who died

from AIDS in 1994. Neithamer assured Wholihan that he had maintained good credit since that

time, as his more recent bank statements and credit references would show. Wholihan presented the

application to the property owner, who rejected the application.

When Wholihan informed Neithamer of this, Neithamer, presuming that it was due to his credit

record, offered to pay a second month's rent as additional security. Wholihan informed Neithamer

that the owner had rejected this offer as well. Neithamer then found a minister willing to co-sign the

lease on his behalf, but Wholihan never ran a credit check on the minister and the owner rejected

the offer of a co-signer. Finally, Neithamer offered to pre-pay an entire year's rent, but Wholihan

told him that the owner had also rejected this offer. Neithamer then called George Brenneman, the

owner of the real estate agency, to ask whether he was being discriminated against. According to

Neithamer, Brenneman responded angrily on the phone, stating "if you try to sue me, I have a pack

of bloodsucking lawyers who will place countersuits against you for libel and drive you into the

ground." (Wholihan, who claimed to have heard the conversation from Brenneman's end, claimed

that Brenneman said he had a "bulldog of an attorney" and that he might countersue. Neithamer's

lawsuit alleged discrimination based on his sexual orientation and perceive disability of HIV+ status,

as well as intimidation and coercion in violation of the civil rights laws. Brenneman filed a motion

for summary judgment.

As there was no direct evidence of discrimination, Judge Kessler found that Fair Housing Act case

law supported the use of the _McDonnell Douglas_ test established under Title VII of the Civil

Rights Act for evaluating whether a plaintiff's factual allegations were sufficient to make out a prima

face case raising an inference of discrimination, requiring the defendant to articulate legitimate, non-

discriminatory reasons for its actions. Kessler found, based on the allegations of Neithamer's

complaint and the affidavits submitted in opposition to the motion, that Neithamer's statements to

Wholihan made it rather clear that Neithamer is gay, which was sufficient, taken with the other

allegations, to raise an inference of discrimination under the D.C. Human Rights Law. However,

to maintain the action in federal court, it was necessary to find a prima facie case of disability

discrimination under the Fair Housing Act. Although Neithamer is also HIV+, he had not revealed

this to Wholihan, and the defendants on their motion to dismiss alleged that they were unaware of

his HIV status.

Kessler found that based on Neithamer telling Wholihan about the death of Neithamer's same-sex

partner from AIDS in 1994, Neithamer had given sufficient information to Wholihan to support an

allegation that the defendant believed that Neithamer was HIV+, following a chain of reasoning that

a gay man whose lover died from AIDS was likely to have had a sexual relationship with his lover

during which he was likely to have been exposed to HIV. Since, on the motion for summary

judgment, it was sufficient that there be a basis in the record for concluding that the defendant

believed that the plaintiff was a person with a disability, Kessler found the first prong of the

_McDonnell Douglas_ test to be satisfied. (Kessler found, without discussion, that being HIV+ or

perceived as such is a disability under the Fair Housing Act, citing a 1994 1st Circuit decision.)

Brenneman contended that the decision to reject Neithamer as a tenant was solely that of the property

owner, and should not be imputed to the real estate agency under either statute. Kessler found that

there were sufficient allegations that the agent had not relayed all of Neithamer's offers to the owner

as to implicate the agent in possible discrimination. Brenneman also contended that Neithamer

failed to meet the second prong of the prima facie case, i.e., to allege that he was a qualified tenant,

due to his poor credit record. While Kessler found that Neithamer's credit record, standing alone

and unexplained, would serve as a legitimate reason to reject him as a tenant, it appeared that the

explanation he gave to Wholihan, together with Neithamer's proffer of a co-signer or a payment of

a year's rent in advance, were sufficient to rebut this proposition and establish him as a qualified

tenant..

Consequently, Kessler ruled that Neithamer had adequately stated a prima facie case under both

statutes, and rejected the motion for summary judgment. Kessler also found that Neithamer's

account of the telephone conversation with Brenneman was sufficient to sustain the count on

coercion and intimidation, noting that the different accounts of that conversation created a factual

dispute to be resolved at trial. A.S.L.

Connecticut Court Refuses to End AIDS Phobia Case; Holds Doctors' Statements Foreseeably

Caused Plaintiff's Distress

Judge Booth of the Connecticut Superior Court denied summary judgment for the defendants where

a woman sought emotional distress damages from feared exposure to HIV and hepatitis. _Ayotte v.

Kates_,1999 WL 1063261 (Nov. 3). Ayotte sued for emotional distress.

On July 11, 1996, Ayotte underwent surgery at the Hartford Surgical Center performed by Dr. Kates.

After the surgery, she was told by a Dr. Kemp, that the instruments used may not have been sterilized

after being used on a previous patient. She was told that she "could possibly be afflicted with

Hepatitis B and C and HIV." She was put on medication for five days and told that she would have

to wait six months to determine whether or not she had been exposed to HIV. Further testing and

medication was done at the urging of her doctors.

Citing _Barrett v. Danbury Hospital_, 654 A.2d 748 (Conn. 1995), Judge Booth denied summary

judgment requested by the defendants, finding: "While it may be that there is no evidence that Mrs.

Ayotte was actually exposed to hepatitis or HIV, her affidavit states that she was specifically warned

of these dangers and agreed to certain testing at the urging of her doctor." Although Connecticut has

not formally adopted the "actual exposure" test used by many other states in dealing with AIDS

phobia claims, in this case, the court found that Ayotte's emotional distress was within the scope of

the risk. "This court does not believe that the foreseeability of distress can be denied when the

doctor warns of infection and requests and receives permission to test for that infection." _Daniel

R Schaffer & A.S.L._

Ohio Appeals Court Affirms Conviction of HIV+ Man for Attempted Murder in Rape of 8-Year Old

Boy

The Ohio 12th District Court of Appeals affirmed the conviction of Ronald Hutchinson, an HIV+ gay

man, for attempted murder for raping an 8-year old boy. _State of Ohio v. Hutchinson_, 1999 WL

1236354 (Dec. 20) (not officially reported). Hutchinson did not appeal his conviction of rape, but

argued that the State failed to establish mens rea for the crime of attempted murder.

The victim's parents left their son and his two brothers at the home of their uncle, Wil S., when they

went away for a weekend. When they returned on Sunday, they found Wil S. and his wife were

having a picnic, at which their three sons and various other family members were present, along with

Ronald Hutchinson, who was known to them to be a gay man. When the mother spoke with her 8-

year-old son, J.S., he told her that Hutchinson was gay. She told her son "that he should not judge

other people." When J.S. came home from school the next day, he again told her that Hutchinson

was gay, and she asked him why he kept bringing it up. "Upset and crying, J.S. said that on Saturday

night, [Hutchinson] laid down beside him on the floor and `had pulled his pants down and tried to

stick his thing in his [J.S.'s] butt." When the mother asked J.S. what he meant by "thing," he pointed

to his penis. J.S. was taken the hospital, where medical tests showed evidence of anal penetration,

including tearing and bruising. A criminal investigator questioned Hutchinson, who denied having

sexual intercourse with J.S., "saying that because he had AIDS, that would be murder and he would

not do that." According to the investigator, Hutchinson also made a statement "implying that

because he was going to die, there was nothing that anyone could possibly do to punish him."

At trial, Hutchinson stipulated that he had tested HIV+. As of the date of trial, J.S. had not tested

HIV+. At the conclusion of the State's evidence, Hutchinson moved for acquittal on the charge of

attempted murder, showing that the State had provided no evidence that he intended to cause the

death of J.S. His motion was overruled, and he was found guilty of attempted rape and attempted

aggravated murder. He received consecutive sentences of 7 years for the rape and 8 years for the

murder attempt. He appealed only the attempted murder conviction.

According to Judge Powell, writing for the court, this is a case of first impression for Ohio, although

the Ohio Supreme Court had previously rejected an attempt by an HIV+ person who pled guilty to

set aside an attempted murder charge based on having spit at a police officer. _State v. Bird_, 692

N.E.2d 1013, reconsideration denied, 695 N.E.2d 266 (Oh. 1998).

Powell found that the state's burden on the charge of attempted aggravated murder was to show that

Hutchinson attempted to cause the death of another while committing a felony, in this case a rape.

As Hutchinson was not contesting the rape conviction, which was supported by medical evidence

tending to confirm J.S.'s story, there was no basis for questioning the rape conviction. As to the

issue of intent regarding murder, Powell quoted the Ohio Supreme Court's decision in _State v.

Garner_, 656 N.E.2d 623 (1995), to the effect that "persons are presumed to have intended the

natural, reasonable and probable consequences of their voluntary acts."

In this case, the trial court received expert testimony from a medical doctor concerning the risks of

HIV transmission during anal intercourse. Dr. Siegel testified that "the highest risk of transmission

occurs during anal receptive intercourse. The doctor stated that the risk is even greater when a child

is involved. . . Dr. Siegel testified that if an HIV positive adult male who had the AIDS syndrome

[sic] were to anally rape a boy so that the boy suffered anal tears and bruising, this would be a `very,

very high risk sexual situation.' Adult data estimates that there is about a one in one hundred chance

of contracting HIV from unprotected anal receptive intercourse with an HIV infected person. Dr.

Siegel stated that the statistical risk of HIV infection is even greater where a child is anally raped by

an adult." Siegel also testified that HIV infection is incurable and fatal, and that an HIV infected

person's bodily fluids would be considered a "dangerous instrument."

As Hutchinson knew he was HIV+, and attempted to rape J.S., the court found that Hutchinson's

"deliberate actions put his victim in grave risk of death. Appellant stated that because he had AIDS,

having sexual intercourse with the boy would be murder and commented that there was nothing that

anyone could possibly do to punish him. Reviewing appellant's actions as well as his words, a

reasonable mind could conclude beyond a reasonable doubt that appellant intended to kill." A.S.L.

Georgia Appeals Court Upholds Convictions of HIV+ Man For Sexually Assaulting Two Women

In _Parks v. State of Georgia_, 1999 WL 1128796 (Dec. 9), the Georgia Court of Appeals affirmed

an array of convictions of defendant Parks for forcing two women to have oral and anal sex with

him, and rejected his objection to the admission of evidence that one of the women took AZT for

a period of sex months after the incidents in question.

Parks apparently contracted HIV during a prior relationship with one of the women, M.M. Although

their relationship was ending, M.M. agreed to parks' request to go to his house. She arrived

accompanied by her female friend, J.A., who was not HIV+. When they arrived, Parks was

intoxicated and complained that M.M. had ruined his life by giving him HIV; brandishing a shotgun,

he forced M.M. and J.A. to get into their car and drive him to a secluded area, where he forced both

women to have both oral and anal sex with him. Evidently the area wasn't all that secluded, because

there was testimony that while this was happening, the women were calling out for help and other

people were milling around the area; at least one window of the car was down. However, nobody

came to the assistance of the women. After these events, the women went first to a police station to

make a complaint against Parks and then to a hospital, where J.A. was put on an AZT regimen.

Examination of J.A. showed that Parks had ejaculated in her vagina. Parks' version of these events

was that both women had consented to have sex with him, and that he had offered both women

money.

In appealing his convictions, Parks argued that the state constitutional right of privacy was violated

by his sodomy convictions, citing _Powell v. Stated>, 510 S.E.2d 18 (Ga. 1998), in which the

Georgia Supreme Court found state constitutional protection for private, consensual sodomy between

adults. Writing for the court, Judge Phipps rejected this argument, pointing out that this activity took

place in public, and that Parks testified he offered to pay the women to have sex with him, so this

was not the cloistered, non-commercial setting protected under _Powell_, even if the court were to

believe Parks's description of events. Parks also argued that it was error to allow testimony about

J.A.'s use of AZT after the incidents. Phipps found, on the contrary, that this testimony might have

been beneficial to Parks, "as it left the jury with the impression that J.A. might not have contracted

the AIDS virus." A.S.L.

AIDS Litigation Notes

In _In re Dallas County Hospital District_, 1999 WL 1134633 (Dec. 13) (not officially published),

the Texas Court of Appeals in Dallas upheld a trial court order that a blood donor submit to a

videotaped deposition in connection with litigation against the hospital for transmission of HIV by

blood transfusion. The plaintiffs argued that it was necessary to depose the donor in this fashion for

two reasons: so the jury could evaluate the donor's credibility regarding the circumstances under

which the donor was screened prior to donating blood, and so that the jury could see for itself the

physical effects of HIV infection by viewing the videotape of the infected donor. The court of

appeals decision is not published, but the Westlaw report of the case published the dissenting opinion

of Judge Wright. Wright concluded that ordering this form of deposition, which could compromise

the anonymity of the blood donor, violates sec. 162.011 of the Texas Health and Safety Code.

Wright agreed that the information the plaintiffs seek is "reasonably calculated to lead to the

discovery of admissible evidence relevant to the subject matter of the proceeding," which is the

standard for ordering discovery. "However," wrote Wright, "because I believe this information

could be obtained without a face-to-face videotaped deposition, I cannot conclude the trial court's

order meets the criteria set forth in section 162.011. I fail to see why it is necessary to utilize a form

of deposition that is extremely likely to lead to the identification of the donor. . . Although I

recognize that the jury might better determine donor P3098's credibility if the deposition were

videotaped or if the donor were to testify in person at trial, I cannot conclude that alone is sufficient

to outweigh the donor's statutory right to anonymity. Nor can I agree that it is necessary to videotape

the deposition to demonstrate the physical pain and suffering the plaintiff is likely to undergo as a

result of AIDS. That information could be provided through expert testimony or through a willing

AIDS patient."

In _Rollf v. Interim Personnel, Inc._, 1999 WL 1095768 (U.S.D.C., E.D.Mo., Nov. 4), District Judge

Webber undertook an analysis of disability issues under the ADA that may be pertinent to people

with HIV. Plaintiff Terry Rollf suffers from hepatitis C, and claims his employment was terminated

due to this medical condition. The employer sought dismissal of the ADA claim, arguing that Rollf

does not suffer a disability within the meaning of the ADA. Rollf alleged that his doctor advised him

to use a condom whenever he has sex to avoid transmitting HCV to his sexual partner, and that this

substantially impairs his reproductive ability. He also alleged that the medications used to treat his

condition have significant side effects, including personality effects that make it difficult for him to

interact with others, and made factual allegations tending to support the argument that he was

discharged because many co-workers were frightened of the possibility of contracting HCV from

him, at least partly due to a misapprehension that it is casually transmissible. The employer, relying

on the Supreme Court's _Sutton_ decision, argued that hepatitis C is a treatable condition, and also

sought to distinguish _Bragdon v. Abbott_ by arguing that Rollf could still engage in reproductive

activity through resort to artificial insemination. Judge Webber denied the motion, finding that the

requirement that Rollf always use a condom during intercourse is a substantial impairment of his

reproductive function, and also noting, from the _Arline_ case (1987) under sec. 504 of the

Rehabilitation Act, that discrimination due to fear of infection is certainly covered under federal

disability discrimination law as a perceived disability. Wrote Webber, "The Court finds that Rollf's

allegations that Interim terminated him on the basis of mythology, rather than medical evidence, are

sufficient to state a claim that Interim regarded him being disabled. Moreoever, Rollf's allegations

regarding Interim's belief that Rollf posed a health threat to his fellow workers -- simply from his

presence in the workplace -- are adequate to allege that Interim regarded Rollf as substantially

impaired in the major life activity of working, because such a belief would have made it impossible

for Rollf to perform almost all jobs, not merely his job with Interim as a warehouse worker."

The old Catch-22 at work? William Ellsworth, an HIV+ school teacher whose partner died from

AIDS in 1993 and who subsequently took a medical leave to successfully battle his AIDS-related

lymphoma, upon recovery moved back to his home state and sought a new teaching position.

Although a school principal with whom he was acquainted indicated that she would certainly give

him a job, it was later claimed by the school district that there was no vacancy for him in her school,

and that his score on a standardized oral exam, the Gallup Urban Teacher Perceiver Interview Guide,

was too low for him to qualify for employment in the Houston Independent School District. when

Ellsworth filed suit under the ADA, the district contended he had falsified his application in various

ways. He did not, incidentally, disclose his HIV status, but did disclose that he had suffered from

and been cured of lymphoma. In an unpublished decision issued on Dec. 7, U.S. District Judge

Vanessa Gilmore found that Ellsworth was not discriminated against based on HIV status, since he

had never revealed that condition to the school district, and that he failed to make out a prima facie

case under the ADA because his test score was too low for him to be considered "qualified" for the

position he sought. In a running commentary on the decision that Ellsworth distributed on the

internet, he pointed out that the Houston schools had a severe teacher shortage and was hiring

uncertified individuals, many of whom had even lower scores than he did, to fill vacant teaching

positions. Ellsworth also contends that there was a vacancy at the principal's school that he could

have filled. In his email, Ellsworth claims that his lawyer failed to introduce significant evidence

that could have changed the result. _Ellsworth v. Houston Independent School District_, No. H-98-

2112 (U.S.D.C., S.D.Tex., Houston Div., Dec. 7, 1999); _Houston Chronicle_, Dec. 10.

The _Milwaukee Journal Sentinel_ (Dec. 11) published a strange story about the sentencing of a 25-

year-old HIV+ man to a prison term of 125 years on charges of repeatedly sexually assaulting his

stepdaughter, who has not tested HIV+. According to the story, Kenosha, Wisconsin, County Judge

Michael Wilk commented in passing sentence: "One might ask how could a civilized person

intentionally act in a way that exposes a stepdaughter to the danger of HIV in addition to the actual

sexual acts themselves." The defendant, whose name was not given in the story, presumably to

protect the privacy of the victim, denied having ever had sex with his stepdaughter, but his case

collapsed at trial when the prosecution presented a witness who exploded the defendant's alibi for

a particular date; the defendant claimed to have been watching a particular fight on television at the

time he was alleged to have been assaulting his stepdaughter, but a cable TV company employee

testified that the fight scheduled for that time had been canceled and was not broadcast.

The _Washington Post_ reported Dec. 30 that a D.C. Superior Court jury has awarded damages of

$250,000 to be paid by Washington Hospital Center to a John Doe plaintiff for improper breach of

confidentiality regarding his HIV status. Doe, a janitorial employee at the U.S. Department of State,

was in the hospital for HIV-related treatment; a State Department colleague, who also had a part-

time position as a receptionist at the hospital, learned about his HIV status and spread the word back

at the State Department. When Doe returned to work, he was met by "little stares and innuendoes,"

and filed suit against the hospital. In a prior ruling, the court held he could proceed anonymously

to try to preserve his battered confidentiality.

Quite belatedly, Westlaw has published the transcript of the bench opinion of the Oregon Circuit

Court in _Matter of Felix Tyson, a Child_, 1999 WL 997489 (April 20), in which Judge Duiven

ordered that the Juvenile Court intervene to prevent an HIV+ mother from breast-feeding her

newborn child. Wrote Duiven, "It appears fundamental that the avoidance of the threat of harm of

a substantial risk of introduction of a fatal disease is a protected right of the child. While the parents

may choose to run that risk with their child, the law of the State of Oregon gives the State not only

the opportunity to second guess this decision but the responsibility to do so. It is the order of the

Court that under the statutory scheme of Oregon Law, Juvenile Court intervention to prevent breast

feeding of the child in this case is required to protect the best interests of the child. The Court does

not take lightly the decision to intervene in parental decision making. But protection of children

from however well-intentioned but poor decision making is required." A.S.L.

Australian High Court Deals Setback to HIV+ Military Recruit

In _X v. The Commonwealth of Australia_ 167 Australian L. Rep. 529 (Dec. 2, 1999), the High

Court of Australia appears to have rejected a discrimination claim by an HIV+ recruit who had been

dismissed from the army solely on account of his serostatus. X enlisted on Nov. 23, 1993, knowing

that he would be tested for HIV and a host of other infectious conditions. He began recruit training,

including drill and physical training, during which time he took required blood tests. On Dec. 21,

he was informed that he had tested positive for HIV, and he was discharged on Dec. 24 under the

Australian Defence Forces _Policy for the Detection, Prevention and Administrative Management

of HIV_, which had been issued in July 1989. The policy provided that newly-inducted entrants

found to be HIV+ should be promptly discharged.

The Human Rights Commissioner to whom the case was assigned found the discharge to be

unlawful, noting that X was healthy and fully capable of undergoing training and performing his

assigned duties. The government sought judicial review, which was denied by one judge but then

granted by the Full Court of the Federal Court, which reversed the Commissioner's ruling. A grant

of special leave brought the case to the High Court. The High Court accepted the military argument

that an HIV+ recruit could be found not qualified because in the course of assignment he might be

required to be a blood donor, or might be engaged in activities where he would be exposed to injuries

that could cause him to bleed and transmit HIV to others. The government argued that it could not

accommodate X by guaranteeing he would be assigned to duties that did not present these risks. The

Court held that the case should be sent back to the Commission for reconsideration in light of these

arguments.

The opinion drew an extended dissent from the only openly-gay member of the Court, Hon. Michael

Kirby, who argued that the Australian army was large enough that they should be able to

accommodate an HIV+ recruit with useful skills in a position that minimized the risk to others of

HIV transmission. "Common sense suggests that, consonant with the will of the Parliament

expressed in the Act [the anti-discrimination statute covering disabilities], it would have been

possible, in such a large field of the Commonwealth's employment, to find `particular employment'

for X that could have been carried out without unreasonable risk to other ADF personnel or

unreasonable burdens to the ADF itself. On the face of things, therefore, X's automatic discharge

in accordance with the Policy appears to be a breach of the Act. If so, it would entitle X to redress

for which the Act provides. However, as past cases indicate, and this one again demonstrates, the

field of anti-discrimination law is littered with the wounded who appear to present the problem of

discrimination which the law was designed to prevent and redress but who, following closer judicial

analysis of the legislation, fail to hold on to the relief originally granted to them." A.S.L.

AIDS Law & Society Notes

The U.S. Centers for Disease Control and Prevention issued final guidelines on Dec. 9 on the issue

of reporting of diagnosed HIV infections to public health authorities. The CDC is taking the position

that the best way to collect data about the ongoing HIV epidemic is to require reporting of the names

of those who test positive to state and local public health authorities; that data is then cumulated and

reported in statistical form, without names, to the CDC. Advocates for People with HIV/AIDS have

long called for the use of "unique identifiers" rather than the actual names of infected individuals

to be reported to public health authorities, in order to protect confidentiality and avoid accidental

disclosures that could be harmful to the individuals involved. A major debate has ensued about

whether a system without names reporting can produce sufficiently accurate data. The data is needed

to plan public health responses, and to provide a basis for allocating government funding for

treatment and related services, so undercounting can be a serious problem from a policy standpoint.

Reactions to the new guidelines seemed contradictory. The mainstream press reported that CDC was

pressuring the states to adopt name-reporting systems; the ACLU, in a Dec. 10 press release,

appeared to contradict the general media accounts by describing the guidelines as being supportive

of the use of unique identifiers. The reality appears to be somewhere in between, as the guidelines

tolerate the use of unique identifiers (without loss of federal financial assistance underwriting the

data collection programs) but for a limited period of time during which states using that system will

have to show that they have attained a specified level of accuracy in their data. So the debate over

data collection methodology and its impact on the rights of people with HIV continues.... _Wall

Street Journal_, Dec. 10; ACLU Press Release, Dec. 10.

It is unlikely that N.Y. Mayor Rudolph Giuliani foresaw all the consequences of losing his lawsuit

with Housing Works, the AIDS services organization, over the obstacles his administration was

placing in the path of people with HIV seeking housing benefits to which they are entitled..

Referring to the decision in that case, U.S. Secretary of Housing and Urban Development Andrew

Cuomo announced that federal financial assistance for the homeless would not longer be

administered by the City, which could not be trusted to distribute the funds to all those who were

eligible, but instead would be distributed by HUD directly. A.S.L.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES:

Damiano, Christin M., _Lesbian Baiting in the Military: Institutionalized Sexual Harassment Under

"Don't Ask, Don't Tell, Don't Pursue," 7 Am. U. J. Gender, Soc. Pol. & L. 499 (1999).

Henderson, Lisa, _Simple Pleasures: Lesbian Community and_ Go Fish, 25 Signs 37 (1999).

Kirby, Hon. Justice Michael, _Same-Sex Relationships Some Australian Legal Developments_,

19 Australian Bar J. 4 (Nov. 1999) (based on speech delivered to international legal conference on

recognition of same-sex couples at King's College, London, July 1999).

Lester, Toni, _Protecting the Gender Nonconformist from the Gender Police Why the Harassment

of Gays and Other Gender Nonconformists Is a From of Sex Discrimination in Light of the Supreme

Court's Decision in_ Oncale v. Sundowner, 29 New Mex. L. Rev. 89 (Winter 1999).

Mashima, Rieko, _Problem of the Supreme Court's Obscenity Test Concerning Cyberporn:

Community Standards Remaining after_ ACLU v. Reno, 16 Computer Lawyer No. 11, 23 (Nov.

1999).

Robertson, Jennifer, _Dying to Tell: Sexuality and Suicide in Imperial Japan_, 25 Signs 1 (Autumn

1999).

Rubenstein, William B., _The Myth of Superiority_, 16 Const. Comment. 599 (Winter 1999) (from

the perspective of gay rights litigation, challenges the "common knowledge" that federal courts are

superior to state courts as a forum for litigating over civil rights).

Velte, Kyle C., _Egging on Lesbian Maternity: The Legal Implications of Tri-Gametic In Vitro

Fertilization_, 7 Am. U. J. Gender, Soc. Pol. & L. 431 (1999).

Vetri, Dominick, _Almost Everything You Always Wanted to Know About Lesbians and Gay Men,

Their Families, and the Law_, 26 Southern U. L. Rev. 1 (Fall 1998) (note: published in December

1999, containing many useful tables and data collections updated through mid-1999).

_Student Notes & Comments:_

Crabtree, Travis, Southworth v. Grebe_: The Inquisition of the First Amendment_, 36 Houston L.

Rev. 1093 (Fall 1999).

Foreman, Todd, _Nondiscrimination Ordinance 101: San Francisco's Nondiscrimination in City

Contracts and Benefits Ordinance: A New Approach to Winning Domestic Partnership Benefits_,

2 U. Pa. J. Lab. & Emp. L. 319 (Fall 1999).

Miller, Heather L., _Strike Two: An Analysis of the Child Online Protection Act's Constitutional

Failures_, 52 Fed. Communications. L. J. 155 (Dec. 1999).

Phelps, Alan, _Picketing and Prayer: Restricting Freedom of Expression Outside Churches_, 85

Cornell L. Rev. 271 (Nov. 1999).

Recent Cases, _Civil Rights Public Accommodation Statutes New Jersey Supreme Court Holds

That Boy Scouts May Not Deny Membership to Homosexuals. _ Dale v. Boy Scouts of America_,

734 A.2d 1196 (N.J. 1999),_ petition for cert. filed_, 68 U.S.L.W. 1083 (U.S. Oct. 25, 1999)(No.

99-699)_, 113 Harv. L. Rev. 621 (Dec. 1999) (suggests a constitutional association analysis under

which gays would have a right to be members but not necessarily to serve in leadership positions).

_Specially Noted:_

Prof. Cass Sunstein of the University of Chicago Law School has written a brief fantasy piece about

what might have happened had Justice Lewis Powell actually been confronted during his

consideration of _Bowers v. Hardwick_ with the reality of his gay clerks. Interesting, and heart-

wrenching.... Cass R. Sunstein, _Two Phone Calls_, 16 Const. Comment. 595 (Winter 1999).

AIDS & RELATED LEGAL ISSUES:

Grushcow, Jeremy, _The Ethics of Subject Selection for Testing Live-Attenuated HIV Vaccines_,

6 Univ. Chi. L. Sch. Roundtable 113 (1999).

Mansfield, Nancy R., _Evolving Limitations on Coverage for AIDS: Implications for Health Insurers

and Employers Under the ADA and ERISA_, 35 Tort & Ins. L. J. 117 (Fall 1999).

Wit, Adam C., Sutton_ and_ Murphy_: What It Means to Be Disabled Under the ADA_, 25 Emp.

Rel. L. J. No. 3, 41 (Winter 1999).

_Student Notes & Comments:_

Barhorst, _What Does Disability Mean: The Americans With Disabilities Act of 1990 in the

Aftermath of_ Sutton, Murphy_, and _ Albertsons, 48 Drake L. Rev. 137 (1999).

Friedland, Michelle T., _Not Disabled Enough: The ADA "Major Life Activity" Definition of

Disability_, 52 Stanford L. Rev. 171 (Nov. 1999).

Johnston, Timothy D., _Reproduction is Not a Major Life Activity: Implications for HIV Infection

as a Per Se Disability Under the Americans With Disabilities Act_, 85 Cornell L. Rev. 189 (Nov.

1999).

_Specially Noted:_

The 1999 Cumulative Supplement has been published for _AIDS and the Law_ (3rd ed., Panel

Publications) by David W. Webber. The supplement, which is approximately 250 pages, can be

ordered by calling 1-800-638-8437.

EDITOR'S NOTE:

All points of view expressed in _Lesbian/Gay Law Notes_ are those of identified writers, and are not

official positions of the Lesbian & Gay Law Association of Greater New York or the LeGaL

Foundation, Inc. All comments in _Publications Noted_ are attributable to the Editor.

Correspondence pertinent to issues covered in _Lesbian/Gay Law Notes_ is welcome and will be published subject to editing. Please address correspondence to the Editor or send via e-mail.