LESBIAN/GAY LAW NOTES November 1994 Lesbian and Gay Law Association of Greater New York Editor in Chief: Arthur S. Leonard, NY Law School 57 Worth Street, New York, NY 10013 ASLeonard@aol.com Circulation: Audrey Hartmann, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118 (C) 1994 by Lesbian & Gay Law Association of Greater New York ISSN 8755-9021 Contributing Editor: Colin Crawford, Instructor, Brooklyn Law School Contributing Writers: Otis Damslet, Esq., New York; Paula Ettelbrick, Esq., New York; Steven Kolodny, Esq., New York; Todd V. Lamb, Esq., New York; Dirk Williams, J.D., Boston; Paul Twarog, Student, New York Law School; Robert Bourguignon, Student, Brooklyn Law School; Clarice B. Rabinowitz, Student, Brooklyn Law School. Colorado Supreme Court Strikes Down Amendment 2 On Oct. 11 (coincidentally, "National Coming Out Day), the Colorado Supreme Court granted a permanent injunction against the implementation of the anti-gay voter initiative, known as Amendment 2. In so doing, it became the first state supreme court in the country to rule that voter initiatives that prevent government from enacting legal protection for lesbians, gay men and bisexuals are unconstitutional. The decision came after the initial appeal of the preliminary injunction, where the court held that the denial of access to the political process implicated a fundamental right, which required strict scrutiny, and a two-week trial on the state's alleged compelling justifications. The Amendment 2 case, Evans v. Romer, 1994 WL 554621, was also the first of its kind to go to trial. Six of the seven justices found Amendment 2 unconstitutional. In brief, Amendment 2 sought to amend the state's constitution to prohibit state and local government from enacting any laws or policies "whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall. . . entitle any person. . . to claim any minority status, quota preferences, protected status or claim of discrimination." After a trial with extensive testimony and, at times, outrageous assertions by the state's witnesses, trial judge H. Jeffrey Bayless found that such a provision either lacked a compelling state rationale or, where a compelling rationale was implicated, the provision was too broadly drawn. In its prior decision, the Supreme Court had held that, based on U.S. Supreme Court caselaw, there exists a fundamental right to have equal access to the political process. Denying lesbians, gay men and bisexuals the opportunity to lobby their elected officials to enact legislation protecting their interests (which would be the effect of Amendment 2) denied them such access. In the Oct. 11 decision by Chief Justice Rovira, the court refused to reconsider this holding. The central issue on this second appeal, therefore, was whether the state had proved any compelling justification for denying access to this class of persons, and whether Amendment 2 was "narrowly tailored" to achieve such an interest without unnecessarily burdening the constitutional right of participation. While the Colorado Supreme Court's opinion upholding the trial court's decision lacks the eloquent, impassioned call for justice that has come through in some other similar decisions, the court effectively and methodically picked apart each of the state's asserted justifications. First, the court rejected the state's assertion that Amendment 2 protects the sanctity of religious, familial and personal privacy. While religious and familial privacy are certainly compelling state interests, the court found that Amendment 2 was not narrowly enough drawn to further those particular interests. The less restrictive way to protect religious freedom would be to include religious exemptions in civil rights legislation. Further, the state's interest in preserving the right of some parents to teach traditional moral values to their children fails "because it rests on the assumption that the right of familial privacy engenders an interest in having government endorse certain values as moral or immoral." The personal privacy argument fails because Amendment 2 would forbid government from banning discrimination in "all aspects of commercial and public life, no matter how impersonal." The narrower means of meeting this concern, according to the court, is to exempt, for instance, owner-occupied housing units from the non-discrimination law, as has been done and accepted in other contexts. Second, the court rejected the state's claim that Amendment 2 serves the compelling state interest in seeing that limited resources are dedicated to the enforcement of laws protecting those who fall into suspect classes, rather than diverting some funds to protect lesbians, gay men and bisexuals from discrimination. Preservation of fiscal resources and administrative convenience are not compelling state interests. And, even if they were, Amendment 2 does not achieve the goal of preserving fiscal resources since the facts from other jurisdictions indicate that enforcing sexual orientation prohibitions has not had a significant financial impact on the state. Third, the state argued that Amendment 2 allows the state's citizens to establish public social and moral norms, which are defined as a) preserving heterosexual families and marriage, and b) sending the societal message condemning lesbians, gay men and bisexuals as immoral. Interestingly, the court responded by saying it knew of "no authority to support the proposition that the promotion of public morality constitutes a compelling governmental interest." At most, according to the court, this interest is substantial, but not compelling. "[A]ntidiscrimination laws make no assumptions about the morality of protected classes -- they simply recognize that certain characteristics, be they moral or immoral (sic) -- have no relevance in enumerated commercial contexts." Furthermore, employment termination and evictions on the basis of sexual orientation are not appropriate ways of advancing even valid moral beliefs. Fourth, the court rejected the state's argument that Amendment 2 prevents government from supporting the political objectives of a special interest group. Because virtually any law could be regarded as benefitting a "special interest group," the state's argument would "justify striking down almost any legislative enactment imaginable." Finally, the court rejected the state's obviously absurd argument that Amendment 2 would prevent factionalism and divisiveness over the controversial issue of homosexuality. This is accomplished by eliminating the "city-by-city and county-by-county battles over this issue." The court pointed out that the state sought to end debate over the issue by preventing one side (lesbians, gay men, etc.) from having a forum to discuss their concerns. Justice Scott filed a concurring opinion in which he attempts to resurrect the privileges and immunities provision of the Equal Protection Clause as the correct means to analyze the voters' attempt to cut certain people out of the process. While Judge Scott's concurrence is interesting, significant downsides to his theory are that the privileges and immunities clause applies only to those who are citizens, and the clause has been a virtual dead letter of constitutional law since the 1873 Slaughter-House cases. Justice Erickson dissented from the majority's view, as he did in the prior appeal, arguing that there is no basis for the court's claim that there exists a fundamental right to engage in the political process. Instead, he analyzes the claim as an Equal Protection argument and applies rational basis scrutiny to the claims raised by the state. (Since the trial court's decision rejecting strict scrutiny analysis on the basis of sexual orientation was not raised on appeal, the majority did not address this issue.) The State of Colorado announced that it will seek review by the U.S. Supreme Court. Now pending before the 6th Circuit Court of Appeals is the Cincinnati Issue 3 case, in which the trial court used the same analysis as the Colorado Supreme Court in finding an equal protection violation. It seems unlikely that the Supreme Court will take up this question for review until the 6th Circuit decides that case. As yet, there is no split among the state high courts or the circuit courts on this issue. P.L.E. Other Initiative News: Hillsborough County, Florida, Elections Supervisor Pam Iorio certified a petition on Oct. 17 that will place on the ballot March 7 an initiative measure seeking to repeal Tampa's ordinance banning sexual orientation discrimination, and forbidding the enactment of such an ordinance in the future. A previous such initiative was passed by the voters, but the vote was invalidated by the state courts due to irregularities with the petitions. * * * West Palm Beach, Florida, Supervisor of Elections Jackie Winchester announced Oct. 24 that nearly a third of the signatures collected on petitions seeking a referendum to repeal that city's recently enacted gay rights ordinance were invalid. Petitioners need to get 353 more valid signatures by Nov. 4 or they will have to start over from scratch. If the necessary signatures are obtained, the city council must either repeal the ordinance or schedule a special election. A.S.L. LESBIAN/GAY LEGAL NEWS Maryland Appeals Court Remands North Visitation Case for New Hearing; Other Custody/Visitation Notes After an extraordinary 13-member en banc hearing, the Maryland Court of Special Appeals ruled Oct. 25 that David North was entitled to a new hearing on his request for unsupervised overnight visitation with his daughters. North v. North, 1994 WL 580362. North, an HIV+ gay man, had been awarded unsupervised visitation from 11 a.m. to 6 p.m. on alternating Saturdays and from 2 p.m. to 7 p.m. on alternating Sundays, but the Circuit Court for Prince George's County had denied his request for overnight visitation or several weeks during summer vacation. David and Kathryn North married in 1982. He was a Baptist minister, and she is the sister of a Baptist minister. They had three daughters in the marriage. In 1991, David, who unbeknownst to his wife was bisexual and engaging in affairs with men throughout his marriage, discovered that he was HIV+, but continued to have unprotected sex with Kathryn for three months until he moved out of the marital home in June 1991 after telling his wife about his serostatus. (She and the children have repeatedly tested negative for HIV.) He moved in with a family friend, David York, who was secretly an HIV+ gay man, with whom he eventually developed an intimate relationship. York was already a longtime friend of Kathryn and the children, and was a godfather of the youngest child. Over the next year, David continued to have extended visitation contact with his children, but once he announced his and York's homosexuality to his wife and indicated that he and York were lovers and intended to tell the daughters about this, she refused to allow further visitation and filed for divorce. Kathryn argued for no visitation for David, contending that both his HIV status and his homosexual lifestyle presented dangers to the children. David promised that he would not tell his daughters about his "lifestyle" if that was necessary for him to have visitation, and he and York maintained a residence with separate bedrooms (and a third bedroom for the girls to use on overnight visitation). The court decided that David's past dishonesty and reprehensible conduct in continuing to have unprotected sex with his wife without revealing his HIV status indicated a serious character flaw that justified denying extended and overnight visitation. David appealed, with amicus assistance from Lambda Legal Defense and the ACLU. Nine members of the court agreed, in an opinion by Chief Judge Wilner, that the refusal to authorize overnight visitation but the grant of unsupervised daytime visitation were inconsistent enough to be irrational, and thus vacated the visitation order and remanded for a new hearing. "The problem is that the restriction does not follow logically from the facts found by the court and has no reasonable relationship to its announced objective," wrote Wilner. If David could not be trusted to keep his promise not to expose his children to a "homosexual lifestyle," why was he being permitted unsupervised visitation for several hours on Saturdays and Sundays? The denial of overnight visitation in the circumstances seemed arbitrary and an abuse of discretion. In a footnote, Wilner commented that the lower court seemed not to have relied on David's HIV status, but indicated that should the issue arise on remand, "we would hold that a child's visitation with a non-custodial HIV-positive parent cannot be restricted on the basis of that parent's HIV status unless the court finds that visitation without that restriction might endanger the child's physical health or impair his or her emotional development." Wilner's opinion drew dissents from the remaining four judges, some of whom insisted that the lower court could reasonably consider overnights as presenting a qualitatively different situation from daytime visitation, pointedly noting that most sexual activity in the North-York home was likely to occur during the night. Justice Cathell wrote, "The majority's decision not to resolve the issue avoids the homosexuality issue and any resultant controversy regardless of the nature of that resolution, especially now that the national homosexual rights groups have been permitted to insert themselves into this private visitation dispute. Provided that Mrs. North has sufficient resources to continue the battle, the controversy will not now go away. Its resolution has only been delayed, not avoided." * * * The Virginia Supreme Court announced Oct. 25 that it would review the court of appeals decision in Bottoms v. Bottoms, 444 S.E.2d 276 (June 21). This was bad news for lesbian mother Sharon Bottoms, since a denial of review would have returned her son, Tyler Doustou, to her custody. Tyler remains in the custody of Sharon's mother, Kay Bottoms, pursuant to trial level rulings; Kay's appeal of the court of appeals decision, which returned custody to Sharon, automatically stayed that ruling. (Richmond Times-Dispatch, Oct. 26). A.S.L. Delaware Court Allows Defamation Claim Following Radio Personality's Allegations of Rival's Homosexuality The Superior Court of Delaware, New Castle County, will permit an action for defamation to go forward against a local radio station personality for allegedly referring to employees of a rival radio station as homosexuals who make passes at business associates. The comments were made to the head of an advertising agency with whom the radio station did business. In Q-Tone Broadcasting Co. v. Musicradio of Maryland, Inc., 1994 WL 555391 (Aug. 22), defendant Donald Duckman, a radio personality, commented on the air that the staff of a rival radio station were "just a bunch of homosexuals anyway," that they wanted to "touch [Duckman's] butt," that they "wear lace on their drawers," that the "Q" in rival radio personality Tony-Q's name stood for "Queen," and suggested that his rivals were child molesters. Duckman also commented to representatives of an advertising agency that Tony-Q was a homosexual and had asked whether he had "put the move" on an advertising executive. Judge Silverman held that the comments made over the air regarding Tony-Q being a homosexual or likening him to a child molester were "derogatory references to transvestitism or homosexuality" but that, absent specific facts supporting the on- air accusations, "a reasonable listener would take those comments as name-calling and no more." While the court noted that "not all accusations of homosexuality are non-defamatory automatically," this was not a case where such accusations were made as assertions of fact intended to cause harm. No action in defamation could proceed as a result of the comments made on the air. However, the court held that the comments allegedly made by Duckman as to Tony-Q's sexuality "not only imply[ing] that [Tony- Q] is a homosexual, but that he propositions his male clients. . . . support a prima facie case of slander per se because they malign [Tony-Q] in his professional conduct." The court also dismissed plaintiffs' allegation of "false light invasion of privacy," again because general accusations of homosexuality were not actionable per se, and so no special damages could have been incurred. R.B. Rhode Island Supreme Court To Consider Sodomy Challenge A pair of superior court decisions casting doubt on the constitutionality of Rhode Island's "abominable and detestable crime against nature" law will result in state supreme court consideration soon. In State v. Lopes, P1/90-3789 (March 11), Superior Court Justice Wiley was presiding over the trial of a man charged with rape and forcible sodomy of a woman. The jury was charged that consent would not be a defense to the sodomy claims. The jury acquitted on the rape and forcible sodomy charges, but convicted on two charges of consensual anal sodomy. The defendant moved to "arrest judgment," claiming that a conviction on consensual sodomy would violate his right to privacy. In 1980, the Rhode Island Supreme Court upheld the sodomy law against a federal and state constitutional privacy challenge in State v. Santos, 413 A.2d 58, so Wiley could not really do much with the privacy argument, but he decided instead to consider the challenge under an equal protection theory. Even though the Rhode Island law does not distinguish between marital and non-marital sodomy, federal privacy precedents would suggest that marital couples could not be prosecuted for private, consensual sodomy (as the state of Georgia's counsel conceded in oral argument at the U.S. Supreme Court in Bowers v. Hardwick, 478 U.S. 186 (1986). This raised the question whether there was any rational basis for prohibiting unmarried persons from engaging in conduct that was permitted for married persons. Referring to several opinions from other states finding sodomy laws applicable only to unmarried persons to be constitutionally flawed, Wiley concluded that it was unconstitutional for the Rhode Island law to be applied to Lopes, and concluded: "Lastly, the court would urge the state legislature to consider repealing 11-10-1 in order to bring Rhode Island into line with the majority of states. Also this would avoid the dilemma of the lesser included offense request in first degree sexual assault cases." The state petitioned for certiorari, which has been granted by the state supreme court. On June 28, in a bench ruling, Superior Court Justice Pfeiffer relied on the Lopes ruling to dismiss charges of crime against nature and solicitation of crime against nature against Robert De Magistris. (State v. De Magistris, P2/93-3890). Pfeiffer ruled that as the underlying substantive prohibition was unconstitutional, solicitation to engage in the conduct could not be illegal. However, do to factual disputes, Pfeiffer refused to dismiss charges of "securement, direction or transportation for pecuniary gain," which suggests that the sodomy and solicitation charges against De Magistris were asserted within the broader context of a prostitution or pimping charge. (The brief transcript of the bench ruling is rather cryptic as to facts.) The state's petition for certiorari is pending. If granted, it is possible the cases will be consolidated for consideration by the Rhode Island Supreme Court. A.S.L. Domestic Partnership Updates The Public Employees Federation, which represents New York State- employed scientists, engineers and food inspectors reached agreement with the Governor's Office of Employee Relations on Sept. 26 for a domestic partnership health insurance program. To qualify for benefits, couples must document that they have been together six months, share a residence and are financially interdependent. The union insisted that both gay and heterosexual couples be covered. Unions representing state university professionals and state prison guards had previously reached agreements on domestic partnership, also covering both gay and non-gay couples. Albany Times Union (Sept. 28). A gay/lesbian Workplace Group honored three Minnesota employers for adopting domestic partner benefits plans. St. Paul Companies, Northern States Power, and the Wilder Foundation have all announced extension of benefits to both same-sex and opposite-sex domestic partners as of Jan. 1. Park Nicollet Medical Center, which operates 19 clinics, also announced it would implement such a plan as soon as its payroll computer system can be adapted for the purpose, according to a consultant to the Center. (St. Paul Pioneer Press, Oct. 14). The University of New Mexico Domestic Partner Benefits Policy went into effect Oct. 1. All domestic partners, gay or non-gay, are eligible for employee benefits on the same basis as spouses of employees if they register and file an affidavit with the University. Health insurance will be effective Jan. 1, 1995. The Pennsylvania Insurance Department refused to approve an insurance policy covering same-sex (but not opposite-sex) domestic partners, contending that such a policy violates the state's Unfair Insurance Practices Act by discriminating on the basis of sex and marital status. The refusal came in a Sept. 29 letter by Richard W. Stoner, a Policy Examiner in the Department's Office of Rate and Policy Regulation, to Independence Blue Cross. Beginning Jan. 1, 1995, Prudential Insurance Co. will be offering domestic partnership coverage in group policies for companies with 50 or more employees in California, according to a recent Internet posting. Capital Cities/ABC, one of the nation's largest media companies, announced extension of domestic partnership benefits to same-sex partners of employees. (San Francisco Chronicle, Oct. 8). In Colorado, Celestial Seasonings and Tattered Cover Bookstore provides partner benefits. (Rocky Mountain News, Oct. 9). And, in Minnesota, St. Paul Companies, Northern States Power, and the Wilder Foundation have adopted benefit plans, and Park Nicollet Medical Center announced plans to implement a plan pending conversion of its payroll data system. (St. Paul Pioneer Press, Oct. 14). The University of New Mexico Domestic Partnership Benefits Policy went into effect on Oct. 1, which insurance coverage becoming available effective Jan. 1. A.S.L. Federal Litigation Notes The Supreme Court denied certiorari on Oct. 3 in Jackson v. Brighel, 17 F.3d 280 (9th Cir. 1994), in which a gay man discharged from the Air Force for homosexual conduct was challenging the search of his off-base home that led to the discharge. For details, see 1994 LGLN 41. A.S.L. The Justice Department announced it would not appeal the decision of the 9th Circuit Court of Appeals in Meinhold v. United States Department of Defense, 1994 WL 467311, 65 FEP Cases (BNA) 1132 (Aug. 31), in which the court upheld the military's policy excluding sexually active gays from service, but required reinstatement of Meinhold on the ground that nothing he did or said expressly indicated his desire to engage in such conduct. The Defense Department is apparently taking the position that the court's decision does not impair the validity of its current policy -- Meinhold was discharged under the policy in effect prior to the Clinton administration. A.S.L. In a case turning more on technicalities than anything else, a 5th Circuit panel in an opinion by Judge Garwood, dismissed a Title VII sexual harassment case involving male-on-male sexual harassment. Garcia v. Elf Atochem North America, 28 F.3d 446 (July 29). Garcia sued the parent company, Elf Atochem, of a subsidiary he worked for, Seagraves Ozark. He also named Jerry Mowell, plant manager at Seagraves Ozark, and Rayford Locke, the foreman Garcia claims harassed him. Garcia stated that on several occasions Locke approached him from behind and grabbed Garcia's crotch, making sexual motions. He complained to Seagraves Ozark, which reprimanded Locke and informed him that future incidents would result in termination. Locke had not harassed Garcia again; although Seagraves Ozark admitted that it received other similar complaints about Locke, it viewed the incidents more as horseplay than anything else. It informed Locke that such behavior was inappropriate for a supervisor; after counselling, there were no further complaints. The trial court granted the defendants' motions for summary judgment and the appeals panel affirmed. As to Elf Atochem, Judge Garwood noted that Title VII liability attaches only to the plaintiff's employer, and Elf was not Garcia's statutory employer. The court found that Garcia failed to show that the parent and subsidiary were a "single, integrated enterprise" for liability to attach to the parent. As for Locke himself, the court reiterated that Title VII liability only applies to the plaintiff's "employer." Locke, as a plant foreman, was not Garcia's employer (although he exceeded the status of co-worker). The court found that to attach liability to Locke, it would have to construe "employer" to go beyond "those with the ability to hire or fire." As the court put it, Locke was not responsible for the terms and conditions of Garcia's employment, so Title VII is inappropriate as applied to Locke. Lest you think that leaves Mowell, not so, says the court. Even if Mowell were considered Garcia's employer, and Locke did indeed sexually harass Garcia, Mowell would only be liable if he failed to take "prompt remedial action" to end the harassment. Mowell reprimanded Locke immediately after Garcia reported the alleged harassment, and his prompt action caused Locke's undesired behavior to cease. Finally, the court stated that this is all academic anyway, as it held in Giddens v. Shell Oil Co., No. 92-8533 (5th Cir. Dec. 6, 1993)(unpublished), that "[h]arassment by a male supervisor against a male subordinate does not state a claim under Title VII even though the harassment has sexual overtones. Title VII addresses gender discrimination." The court concluded that what Locke did to Garcia could not in any event constitute sexual harassment within Title VII, and therefore summary judgment in favor of all of the defendants is proper. P.T. * * * On Oct. 11, the Supreme Court denied a petition for certiorari in Giddens, No. 93-1758. A.S.L. U.S. District Judge Raymond J. Dearie rejected a magistrate's decision in U.S. v. Eric Hoffmann, 93 Cr. 948 (see NYLJ, Oct. 20, p. 1), vacating the conviction of Eric Hoffman for public lewdness in a secluded area of Gateway National Recreation Area. The arresting police officer was out looking for persons engaged in homosexual activity, and came across Hoffman among the shrubbery at 8:45 p.m. on a Sunday evening. The magistrate took the position that outdoors activity was "public" and convicted Hoffman, imposing a small fine. Dearie disagreed, citing People v. McNamara, 578 N.Y.S.2d 476 (NY Ct. App. 1991), in which NY's highest court held that sexual activity in a parked car did not violate laws against public sex if under the circumstances it was clear that the participants did not intend their activities to be visible to the public. "The only photograph entered into evidence depicts an area that, even in broad daylight, is dark and shrouded with shrubbery," wrote Dearie, who said there was nothing in the NY precedents "that suggests that the outdoors must always be a public place." Dearie emphasized that "the arresting officer, hardly a casual passerby, was on patrol searching for evidence of homosexual behavior or drug activity, and yet he could not see the defendant and his companion until he left the path and penetrated the apparently dense shrubbery." A.S.L. Adhering to a position previously announced in several rulings, the U.S. Court of Military Appeals held in U.S. v. Gates, 1994 WL 577534 (Sept. 16), that the constitutional right of privacy does not invalidate the application of Art. 125, Uniform Code of Military Justice, to private, non-adulterous, non-commercial, consensual heterosexual fellatio. Citing Bowers v. Hardwick, 478 U.S. 186 (1986), as had prior military courts, Judge Wiss indicated that the Hardwick court's "approach" to evaluating "claimed due process rights" doomed the appellant's case, even though the Hardwick decision was concerned only with "homosexual sodomy." * * * Elena Martinez, who says she is not a lesbian and that the whole thing is a big mistake, has agreed to accept an honorable discharge from the Marines in which her papers will indicate that she left the service because of homosexual acts. Martinez had been accused based on rumors that she had been seen kissing other women, and dancing with another woman in a bar. Based on these rumors, it was alleged that a senior enlisted Marine held a closed-door meeting with her co-workers to try to dig up dirt on her. Whatever happened to "don't ask, don't tell"? (Charlotte Observer, Oct. 7). A.S.L. State Litigation Notes In the appeal of a capital murder conviction, the Texas Court of Appeals found no error in a criminal trial court's refusal to admit into evidence pornographic pictures of the victim, who had suffered a stroke and who was partially paralyzed. Reagan v. State, 1994 WL 548711 (Tex. App., Oct. 6). The appellant, who had lived with the victim for a period of time, apparently argued that the photographs were relevant because the victim had allegedly sexually assaulted him. The Court of Appeals disagreed, finding that the pictures would have inflamed the jury, and that the appellant had been allowed to present evidence of the victim's sexual orientation at trial. The court also overruled Reagan's other arguments concerning proper venue and the right to confront witnesses. D.W. The Florida Fourth District Court of Appeal dismissed the appeal of a murder, kidnapping and attempted robbery conviction, rejecting a claim that the trial judge had given inadequate opportunity during voir dire for defense attorneys to probe any bias in favor of gays among prospective jurors. Velez v. State, 1994 WL 583695 (Oct. 26). The defendant claimed that the severe beating which caused Patrick Grogan's death in Grogan's apartment occurred because Grogan made a homosexual advance toward co- defendant Amento, and Velez beat up Grogan defending Amento. The court found that the trial court had adequately covered this issue during the voir dire. A.S.L. The California Court of Appeal, 1st District, revived a discrimination suit under the state's Unruh Civil Rights Act in which Thomas Sherck, a gay man, charged that the California Golf Club of San Francisco had discriminated against him on the basis of his sexual orientation by denying him membership. The club claims that Sherck's application was denied because his sponsors (who he named as co-defendants) withdrew their support. The club is not contesting coverage under the Act. (Sacramento Bee, Sept. 30). A.S.L. In a divorce proceeding in which the wife filed for divorce because the husband "changed" his sexual orientation and began an extramarital relationship with a man, the Connecticut Superior Court, Judge Silbert presiding, ruled that although the husband's infidelity exacerbated the deterioration of the marriage and "hastened its decline," it cannot be said to be the cause of the breakdown. Fraser v. Fraser, 1994 WL 577121 (Oct. 12). Rather, the court concluded that the marriage had broken down irretrievably, but not as the result of fault that can be attributed to either party. Lorraine Fraser filed for divorce in 1993, after thirteen years of marriage and two children with Stephen Fraser. Stephen acknowledged that he had begun to question his own sexual identity about two years prior to the commencement of the divorce action, and that he had been involved in a sexual relationship with one Westrup for about a year prior. Lorraine Fraser called Westrup as a witness, and he confirmed the relationship through what the court referred to as "candid" testimony. Stephen claimed that his sexual orientation and infidelity undoubtedly had an impact on his marriage, but that it actually began to break down several years prior, and the lack of communication in the relationship caused him to feel "alone." Evidently, the court agreed. The court ordered dissolution played out along fairly standard terms. She gets the car and $40 per week in alimony, he gets his dictionary and an oil painting of the kids painted by his sister. One point of interest was the custody visitation schedule. Lorraine was awarded custody of the children, subject to the rights of reasonable visitation by Stephen. Lorraine requested that Westrup not be permitted to join Stephen during visitation, but, as the court noted, offered no compelling reason for that request. The court denied her wish, stating that Westrup's presence would not cause the children any harm, but offered that it was influenced by Stephen representing that he would refer to Westrup as a "friend," and that no sexual activity or reference to the nature of their sexual relationship will occur during any visits. The court was silent as to whether any similar restrictions were placed on Lorraine. P.T. New York City Criminal Court Judge Laura Jacobson held that non- sexual S&M activity performed for a fee is not prostitution under the NY Penal Code, sec. 230.00. People v. Georgia A., NYLJ, 10/27/94, p. 37, col. 2 (Kings Co.). The defendant was arrested after making an assignation with a police officer, taking him to her apartment, and beginning preparations for her performance as a dominatrix. Judge Jacobson found that the officer "entered Ms. A's apartment intending to participate in an arrest and nothing was going to deter him from that end result," even though the defendant made clear that she was not interested in any form of sexual intercourse with the officer. Describing the defendant's detailed testimony about the services she offered, Jacobson wrote: "Her testimony was educational as well as entertaining and provided an insight into an area of behavior which is not often talked about in public. . . Ms. A. was quite adamant when she stated that a person involved in the `S & M' sexual life did not want intercourse, and that as a dominatrix and participant in that life, she never offered, nor would she offer, to have intercourse with anyone seeking her services." Jacobson concluded that the defendant's services did not include "sexual conduct" as that term has been construed under sec. 230.00, which forbids anyone from engaging or offering to engage in "sexual conduct with another person in return for a fee," and dismissed the charges. A.S.L. Hamilton County, Ohio, Municipal Court Judge William Mallory refused to dismiss obscenity charges against the Pink Pyramid, a bookstore specializing in gay and lesbian materials, and three of its clerks. The Oct. 3 ruling concerned a misdemeanor complaint, punishable by up to 180 days in prison and a $1,000 fine for the clerks and a $5,000 fine for the store. The prosecution concerns rental of a videotape of Pasolini's film, "Salo, or the 120 Days of Sodom," a deliberately gross depiction of fascism that includes depictions of explicit sex and excrement. The defense argued that Pasolini's film, regardless of its explicitness, could not possibly be found obscene under the Supreme Court's Miller test, because of its artistic and political value. Mallory held that the question whether the film was obscene was a factual matter for the jury to determine. A trial is scheduled to being Jan. 9, 1995. A.S.L. Last month, we related a newspaper report of a decision holding that Florida's Department of Health & Rehabilitative Services had violated administrative notice and hearing requirements in its adoption of rules and policies disqualifying unmarried couples and gay people from being foster parents. The decision is now published as Matthews v. Weinberg, 1994 WL 531291, 19 Fla. L. Weekly D2088 (Fla.App., 2nd Dist., Sept. 30). A.S.L. Lambda Legal Defense settled an administrative complaint before the Connecticut Commission on Human Rights and Opportunities against The American Radio Delay League, a national ham radio association, which had refused to run an advertisement in its magazine by the Lambda Amateur Radio Club (LARC). Lambda charged a violation of Connecticut's human rights law, which forbids sexual orientation discrimination by public accommodations. After the commission found probable cause in February 1994, settlement discussions ensued. The League is required to adopt a non-discrimination policy, pay LARC's legal fees, and offer free advertising to LARC. A.S.L. The Massachusetts Parole Board on Oct. 18 unanimously voted to parole Debra Denise Reid, who was convicted of manslaughter in the stabbing death of her partner, Jacqueline Gary. Ms. Reid contended she was a battered woman who had killed her partner in self-defense, but the trial judge refused to allow any evidence on this point to be heard by the jury, and the Board of Pardons refused to commute her sentence. Governor Weld never acted on her commutation petition. Reid is represented by Sandra E. Lundy, a private practitioner in Boston. A.S.L. Legislative Notes The Elementary and Secondary Education Act was approved by Congress and signed by President Clinton. The conference committee had removed a draconian amendment approved in both houses that would have essentially denied federal funds to school districts that provided any affirmative counseling for gay students or indicated in any way to students that homosexuality was an acceptable "lifestyle." Instead, the final bill included a provision barring the use of federal funds to promote sexual activity of any kind by students. A.S.L. The North Carolina legislature approved amendments to the state's penal law that substantially reduced potential penalties for consensual sodomy ("crime against nature" [CAN], NCGS sec. 14- 177) effective Oct. 1. Prior to Oct. 1, CAN was a class H felony with a maximum sentence of up to 10 years, and solicitation was a misdemeanor punishable by up to 2 years. Anyone convicted of CAN or attempt to commit CAN faced a presumptive sentence of three years and it was entirely within the judge's discretion whether to impose a prison sentence. The revisions downgrade the classifications for CAN and soliciting CAN, and make it likely that only those with bad prior records would receive an active term of imprisonment, since active terms are not supposed to be imposed on first offenders in these categories. Our thanks to Greensboro attorney John Boddie for alerting us to these changes. A.S.L. Law & Society Notes A new study conducted by researchers at the University of Chicago, and claiming to be based on a large enough national random sample to be reasonably accurate, found that 2.8% of men and 1.4% of women called themselves gay, lesbian or bisexual, but that significantly larger percentages said they had engaged in same-sex conduct (5.3% and 3.5%, respectively) and an even larger percentage admitted to same-sex feelings and desires (10.1% and 8.6%). The researchers admitted that the research method, which involved face-to-face interviews, probably meant that these numbers understated the true representation of same-sexers in the sample. Activists scoffed at the likelihood that any face-to- face random survey could produce accurate figures. The New York City Loft Board, which regulates the rights of residents of loft apartments, has recognized the right of surviving gay partners to take over the lofts of their deceased partners, according to a news report in the New York Law Journal (Oct. 12, p.1). The ruling in Matter of Snelham-Moor, TR-0580, accords loft residents the same rights enjoyed by rent stabilized and rent controlled tenants under regulations promulgated by the State Division of Housing and Community Renewal, and also accords with decisions about cooperative apartment proprietary lease rights of the New York City Commission on Human Rights. The Clinton Administration has appointed quite a few openly-gay officials, but fumbled the appointment of Tom Potter, former Portland, Oregon, Police Chief, to head a new program established by the recently passed crime bill to increase the number of police officers nationwide. Potter, an ardent gay rights supporter, withdrew from consideration after a high Justice Department official questioned whether he could be effective in dealing with local police officials due to his well-known gay rights activism. The DOJ fumbling produced widespread ridicule in the media. The Florida Supreme Court has adopted a code of judicial conduct modeled on the 1990 ABA Code, which prohibits sexual orientation discrimination by judges. In re: Code of Judicial Conduct, 1994 WL 525903 (Sept. 29). The Rabbinical Assembly of America, the rabbinic arm of Conservative Judaism in the United States, approved a "Pastoral Letter on Intimate Relations" that affirms the morality of unmarried heterosexual cohabitation if the participants otherwise follow the same ethical norms as married persons. Without directly taking a position on the morality of same-sex relations, the letter urges respect for lesbians and gays and encourages their participation in synagogue life. Dean Hamer, the National Cancer Institute researcher who announced that he had identified the possible location of a gene on the X chromosome that may be a factor in determination of sexual orientation, has published The Science of Desire: The Gay Gene and the Biology of Behavior with co-author Peter Copeland. Sure to spark continued debate, the book provides a detailed account of Hamer's research and the possible interpretation of his results. A reader corrected our report last month about Mike Pisaturo, who is a candidate for the Rhode Island (not California) state House. The reader also notes that depending on the election outcome, some residents of Cranston, R.I., will be represented in both houses of the legislature by a gay man. Out of the medical closet: American Association of Physicians for Human Rights has changed its name to The Gay and Lesbian Medical Association. Volker Beck, a member of the Green Party, is the first openly gay person to be elected to the German Bundestag, the lawmaking chamber of the parliament. He told reporters that gay marriage is a major legislative goal. The Toronto Star (Oct. 19) reports that the Metro Toronto Children's Aid Society has changed its prior policy of barring same-sex couples from becoming foster parents. The Society announced it was changing its policy because new research shows "heterosexual couples do not have a corner on parenting capacity. Some homosexual couples can provide an appropriate and more nurturing environment." A.S.L. Professional Notes Lavender Law IV, a conference organized by the National Lesbian and Gay Law Association, was held in Portland, Oregon, on Oct. 21-23. It drew more than 500 lawyers and law students. The keynote speaker at opening ceremonies was Governor Roberts of Oregon. NLGLA presented its Dan Bradley Service Award to Prof. William Adams of Southeastern University Law School (Ft. Lauderdale, Florida), and awards for contributions to lesbian and gay civil rights to Abby Rubenfeld and Arthur Leonard. * * * At the ABA's 1994 Annual Meeting in August, NLGLA presented its Allies for Justice Awards, given to non-gay lawyers who have contributed significantly to the fight for gay rights, to Sara- Ann Determan, a partner of Hogan & Hartson, Dean William Robinson of the District of Columbia School of Law, former ABA President Chesterfield Smith, a partner at Holland & Knight, and John Pickering of Wilmer, Cutler & Pickering. A.S.L. AIDS AND RELATED LEGAL NEWS BRIEFS First Circuit Adopts Broad Construction of ADA; Revives HIV-Cap Benefits Claim by Auto Dealer Against Industry Benefits Plan In an important case of first impression, the U.S. Court of Appeals, First Circuit, ruled Oct. 12 that the president and sole shareholder of Carparts Distribution Center, Inc., Ronald Senter, could maintain an action under Titles I and III of the Americans With Disabilities Act for disability discrimination against the self-funded medical reimbursement plan operated by the Automotive Wholesalers Association of New England. Carparts Distribution Center, Inc. v. Automotive Wholesaler's Association of New England, Inc., 1994 WL 543530. The district court had dismissed Senter's claim that the imposition of an HIV benefits cap by the plan violated ADA, holding that neither the Association nor its plan was an "employer" of the plaintiff for ADA purposes, and that the plan itself was not covered as a "place of public accommodation" under Title III. In dismissing on these grounds, the district court never reached the merits of whether either title of ADA could be construed to forbid HIV-related benefit caps, a question being hotly contested in several forums. Turning first to the Title I (employment discrimination) claim, Circuit Judge Torruella argued: "If under any legal theory defendants could be considered `employers' for purposes of Title I, then plaintiffs should be given an opportunity to amend their complaint to allege the facts establishing the application of that theory to the present case," and then noted a variety of theories under which the concept of "employer" had been treated expansively under civil rights laws, including Title VII of the 1964 Civil Rights Act. "If [the Association] and [the plan] exist solely for the purpose of enabling entities such as Carparts to delegate their responsibility to provide health insurance to their employees, they are so intertwined with those entities that they must be deemed an `employer' for purposes of Title I of the ADA," said Torruella, relying on Title VII precedent; furthermore, the defendants might be considered "agents" of the employer, whose relationship would not insulate them from Title I liability. The court also noted cases where non-employees had been found to have Title VII claims because a particular aspect of their employment was effectively controlled by an entity who was not otherwise their employer. Torruella concluded that Carparts' factual allegations were sufficient to make any of these theories viable, thus presenting a basis for jurisdiction. Turning to the Title III claim, Torruella held the question whether "places of public accommodation" are "limited to actual physical structures" to be a question of first impression under ADA, and concluded that "they are not so limited." The court used the example of a "travel service," one of the listed types of businesses in the statutory definition, and noted that a customer might use a travel service entirely through telephone communication without ever entering a physical structure. A broad definition as encompassing just about any business selling services seems consistent with the legislative history. While noting that sec. 501(c) might require a contrary result under Title I, it was premature to judge the definitional question in advance of trial on such a significant issue of first impression. Finally, noting that the trial court's dismissal of claims under the New Hampshire Law Against Discrimination and 42 U.S.C. sec. 1985(3) as preempted by ERISA was based on the lower court's erroneous dismissal of the ADA claims, the court remanded those claims as well for reconsideration in light of its opinion. While the court did not address the merits of whether ADA actually forbids AIDS caps, EEOC has achieved several settlements of claims in such cases (see below), and a consensus seems to be forming on the issue. Taken together with the 1st Circuit's jurisdictional rulings in this case, a strong message is sent to employee benefit plan administrators about the dangers of adopting HIV-specific benefits caps. A.S.L. Court Upholds Visitation for Father Who Shares House With HIV+ Brother In Sherman v. Sherman, 1994 WL 535459 (Oct. 5), the Tennessee Court of Appeals ruled a mother's unsubstantiated fear that her daughters might be exposed to HIV does not provide grounds to restrict the father's visitation rights. The Shermans were married in 1980, and lived during most of their marriage on a North Carolina ranch owned by Mr. Sherman's parents. Mr. Sherman's brother lived elsewhere on the ranch with his "homosexual companion." The Shermans' two daughters were born in 1981 and 1984. When the Shermans divorced in 1988, Ms. Sherman received custody of the two children; Mr. Sherman received visitation rights on alternate weekends and holidays. Ms. Sherman re-married in May of 1991, becoming Ms. McLaughlin. She and her new husband moved to Tennessee, while negotiating new visitation agreements for the Sherman daughters. In August of 1991, Ms. McLaughlin learned that Mr. Sherman's brother had HIV, a fact which the family had withheld from her. The McLaughlins were "extremely upset at the news." In 1992 Ms. McLaughlin filed a petition, based on changed circumstances, seeking to restrict Mr. Sherman's visitation rights and to prohibit visitation at his parents' ranch. Mr. Sherman opposed the petition. The trial court awarded Mr. Sherman four weeks of summer visitation, plus holidays, at the ranch. The Court of Appeals affirmed. The court reasoned that its primary concern must be the best interests of the child, including an interest in continuing relationships. In this case, the children's grandparents, their father, their uncle, and many of their childhood friends, in addition to many of their mother's relatives, all lived on or near the ranch. The court also noted that parents have a constitutionally protected interest in maintaining a relationship with their children. The court qualified this statement, however, by adding that visitation should be limited "when it would expose the child to harm in the physical or moral sense" - although the party seeking to curtail visitation on this basis bears the burden of proof. The court further added that it would not substitute its own judgment for that of medical experts in determining whether the presence of an HIV+ person in the same house might harm the children. In order to restrict Mr. Sherman's visitation rights, therefore, the court stated that Ms. McLaughlin needed to present expert evidence that staying at the ranch would create a medically significant increased risk to the children. Ms. McLaughlin had presented no such evidence, and the court cited numerous cases and articles describing the risk of HIV transmission in household contact as virtually nonexistent. The Court of Appeals therefore affirmed the judgment, with costs, and remanded the case for whatever further proceedings might be required. One surprising issue was not a part of the case on appeal. The trial court order awarding visitation also required Mr. Sherman and his parents to take periodic HIV tests, and to furnish the results to Ms. McLaughlin. The Court of Appeals stated in a footnote that, because the respondents had not objected to the tests, it would not decide whether ordering them was permissible under the circumstances. O.R.D. Court Continues Consideration of HIV-Related ADA Discrimination Claim In Real Life Philadelphia Case; Lawyers Take Matter To Press In Doe v. Kohn, Nast & Graf (U.S.Dist.Ct., E.D.Pa.), plaintiff "John Doe", a lawyer, claims he was fired by defendant, a prestigious law firm, because he is infected with HIV. Kohn, Nast maintains that it fired Doe because his work was disappointing. This life-imitates-art-imitates-life scenario is identical to the premise of the 1993 Jonathan Demme film, Philadelphia. Doe's Second Amended Complaint included defamation and invasion of privacy claims, as well as two counts of discrimination under the Americans with Disabilities Act (ADA). On October 6, District Judge Gawthrop granted in part and denied in part Kohn Nast's motion for summary judgment on the four counts, 1994 WL 558250. The court agreed with defendant and dismissed the defamation claim. Doe alleged that defendant's statements to the media, including The National Law Journal, NBC News and ABC News, in which the firm detailed its view of his poor work habits and improper conduct, were defamatory. But the court found that the statements were protected by Pennsylvania's "fair comment" privilege, "which does apply to reports of pleadings even in the absence of judicial action," so long as the reports "are a fair and accurate report of pleadings and in-court statements made by defendants at future stages of the case." As to the privacy claim, Kohn, Nast admits that it opened Doe's mail, but argued that this does not constitute an unlawful invasion of privacy. Judge Gawthrop denied their motion for summary judgment on this count, however, concluding that the claim was not time-barred and that "a jury must determine whether the defendants reasonably believed that they were authorized to open those letters" and "whether defendants' actions would have been highly offensive to the reasonable person." Judge Gawthrop also refused to dismiss both ADA discrimination claims. The first involved improper medical inquiries under the ADA. The court ruled that "plaintiff has not failed to exhaust his administrative remedies." The court also disagreed with Kohn, Nast's contention that "Doe has failed to state a claim that the firm made an improper medical inquiry" under the ADA, 42 U.S.C. sec. 12112(d)(4)(A). Doe claims that his Kohn, Nast boss became suspicious that he was ill, searched his office and found a letter from Johns Hopkins University AIDS service, which the boss then placed in his personal file. "This sequence of events, if proved, states a claim that [the boss] made an improper medical inquiry of the plaintiff." The second ADA claim involved retaliation under 42 U.S.C. sec. 12203(b). Doe alleges that the firm asked him to leave when it discovered he planned to file a lawsuit accusing them of not renewing his contract because he is HIV-positive. "This allegation by itself is sufficient to support a claim under sec. 12203(b)," wrote Gawthrop. Alan B. Epstein, Doe's attorney, says this is the first ADA- discrimination case involving either AIDS or HIV to come to trial. On Oct. 24, Epstein told The National Law Journal (p. A12), that Doe was a victim of two viruses, the AIDS virus and the virus of "invidious discrimination." The National Law Journal also reported that Kohn, Nast unsuccessfully attempted to change venue from Pennsylvania's eastern district, in Philadelphia, to the state's middle or western districts, in order to avoid the inevitable coverage linking the Demme film and the case. Judge Gawthrop rejected Kohn, Nast's attempts to dismiss any juror who had seen the film. After selecting the jury, the defense asked the judge to strike the jury and begin anew, arguing that Kohn, Nast believed the 13 women and 2 men on the panel were "predisposed to favor the plaintiff." An unconvinced Judge Gawthrop shot back: "Think you'll do better next time?" and told the defense that the selected jury would remain. There have been further fireworks in the case. On Oct. 18, The Philadelphia Inquirer reported that Judge Gawthrop reprimanded Donald J.P. Sweeney, a defense attorney, for raising the issue of homosexuality during cross-examination of Doe. Unlike the judge in the film Philadelphia, Judge Gawthrop has refused to allow the jurors to hear any evidence about Doe's sexuality and how he acquired the virus. Judge Gawthrop stated that Doe's sexual orientation is irrelevant to the central question of the case, namely whether Kohn, Nast discriminated against Doe by firing him after it learned he was HIV-positive. After Sweeney admitted that the question was irrelevant, he attempted to excuse his behavior, calling it "a foolish" error, adding, "I did not do it recklessly, I did not do it intentionally," to which Judge Gawthrop acerbically queried, "Was your subconscious, sir, launching that word off your tongue?" Defense counsel maintains that evidence of Doe's sexual orientation should be admitted eventually because during pretrial proceedings Doe himself referred to such rumors. However, Judge Gawthrop warned both attorneys that if either brought up the issue again, they would "run the risk of personally being heavily sanctioned." Further tension erupted about instructions to the jury regarding Doe's sexuality. Defense counsel maintains that the jury should merely be told not to consider the issue of sexual orientation at this point. However, Doe's counsel angrily responded, "If that's true then I get to ask [Kohn, Nast partners] what their sexual preference is. . . what kind of kinky things they get into in any given evening. . . . They can call Playboy, they can call Hustler, and they can all come down here and have a ball." When the jurors returned, Judge Gawthrop said the issue is "absolutely irrelevant to this trial . . . It's a red herring having nothing to do with the issue in this case." C.B.R. Federal Court Allows Liability Suit Against State Police Officers for HIV Testing of Arrestee U.S. District Judge Munson (N.D.N.Y.) ruled Sept. 14 in Incitti v. Skinner, 1994 WL 532527, that the administrix of the estate of David Lipinski was entitled to litigate on the merits claims that Lipinski's federal and state constitutional and common law rights were violated in June 1987 when state police allegedly coerced him into submitting to an HIV test while in custody during investigation of allegations that Lipinski had engaged in sodomy with two teenage boys, and the subsequent leak of information about his HIV status to the local newspapers. Lipinski denied the sodomy allegations during his interrogation. When a police officer said he would be arrested, he ran from the room and suffered a cut above his eye when another officer slugged him in the face to prevent his escape. The incident caused some bloodshed, and the officer requested that Lipinski, now under arrest, undergo HIV testing. Lipinski refused to consent at first, then agreed when (according to his deposition) he was told that the police could obtain a court order and forcibly extract blood from him. (In fact, an attorney from the state police department had advised local state police officials that a court order could not be obtained.) Three weeks later, while Lipinski was in Broome County Jail, the HIV test results came back positive to the state police department doctor who had extracted the blood. He notified the state police officer, families of the teenage boys, hospital staff, and the sheriff at the jail. Lipinski was informed of the result after being moved to an isolation cell. The sheriff told a local newspaper reporter, resulting in newspaper stories. Lipinski, despondent, attempted suicide unsuccessfully and was sent briefly to a Psychiatric Center. After he was sent back to prison, he was found stabbed to death in his cell on October 18, 1991. By that time, he had already filed suit against the police officers, the doctor, the state police superintendent, the state police department and a variety of other state employees, and had been deposed. His administrix was substituted as plaintiff. Judge Munson was ruling on a variety of cross-motions for summary judgment in his Sept. 14 opinion. On claims under 42 U.S.C. sec. 1983 for violation of Lipinski's 4th Amendment right against unreasonable search or seizure and his due process right of privacy, Munson essentially denied summary judgment to both sides, at least with respect to claims asserted against the defendants as individuals. (He found qualified immunity to protect the official defendants, and thus dismissed them as defendants.) Munson concluded that there was a genuine dispute about the voluntariness of Lipinski's consent to the test, making summary judgment inappropriate on the 4th Amendment claim. However, on the due process privacy claim, he found that at the time of this incident, the defendants could reasonably have believed that the police officer's need to know Lipinski's HIV status, as well as the teenage boys Lipinski was charged with having "sodomized," would outweigh any privacy interest Lipinski had with respect to their learning of his HIV status. Lipinski had failed to allege facts sufficient to make a prima facie case that the newspaper leaks were attributable to any of the named defendants; the article clearly named the Broome County sheriff as their source, and he was not named as a defendant. As to pendent state tort claims, Munson found that they also rode on the resolution of the consent issue, so were not suitable for summary judgment. Turning to Lipinski's conspiracy claim under 42 U.S.C. sec. 1985, Munson granted the defendants' motion to dismiss for failure to state a claim against the State Police Department and its chief, but refused to dismiss as against the local state police personnel who might be said to have conspired to coerce Lipinski into giving consent to the test. Once again, the outcome turns on fact-finding at trial. Munson disposed of various discovery motions against the chief of the state police by noting that he had been removed from the case as a defendant by disposition of the substantive motions. Finally, Munson denied the defendants' motion for Rule 11 sanctions, finding no support for their argument that Lipinski's motions were frivolous or filed for improper reasons. Significantly, the incidents underlying this case took place in 1987, several years before New York State enacted a comprehensive HIV confidentiality statute. A.S.L. Military Court Holds Consent No Defense in Case of Sexually- Transmitted HIV In U.S. v. Bygrave, 1994 WL 525030 (Navy-Marine Court of Military Review, Aug. 30), the court held that consent is not a defense to prosecution for aggravated assault for exposing a sexual partner to HIV. Michael M.A. Bygrave infected two women with HIV during sexual intercourse. The first, Petty Officer 2nd Class J, which whom he had an affair in 1987-88, he never told about his HIV status (which he knew about from the inception of the affair), and in fact specifically denied to her that he had any sexually transmitted diseases. When she tested positive in mid-1988 and confronted him, he confessed that he was also positive, and their relationship terminated. Then Bygrave was assigned to another base and became sexually involved in 1990 with Petty Officer 3rd Class C, this time informing his partner that he was HIV positive. They usually used condoms during sex, but forgot on "one or two occasions." In July 1991, C was informed that she was HIV positive, and she expressed certainty in pretrial statements that he was the source of her infection. Bygrave and C subsequently married. Appealing his conviction, Bygrave argued that as to C, consent was a defense to the charge of aggravated assault. The review panel rejected this claim. "There is no dispute in our law that seminal fluid containing the HIV qualifies as a means likely to produce death or grievous bodily harm. It logically follows then that informed consent is no defense to assault by means of HIV-infected seminal fluid passed through unprotected sexual intercourse," wrote Judge Larson, going on to recite a variety of policy reasons for refusing to recognize consent in such circumstances. However, the sentence against Bygrave was set aside for reconsideration because of a showing that the staff judge advocate had made statements to the press prior to sentencing that impaired the appearance of impartiality of the tribunal in that phase of the proceeding. A.S.L. HIV Transmission Litigation Notes The 6th Circuit Court of Appeals, applying Tennessee law, held Oct. 19 that in a product liability action for AIDS transmission through blood products, the statute of limitations begins to run when the blood is given to the patient. Spence v. Miles Laboratories, Inc., 1994 WL 568339. Wynne Spence was first diagnosed with hemophilia in 1977 following an automobile accident. Spence required treatment for hemophilia several times between the accident and 1986. He received Factor IX blood clotting medication. During the summer of 1986, after a knee injury, Spence received Konyne-HT, a blood clotting factor manufactured by Miles Laboratories. The blood used to manufacture the factor was collected and processed during 1984 and 1985. In March 1986, the Tennessee legislature enacted a statute requiring that blood collected directly from individuals be tested for AIDS prior to being administered to a patient. Tenn. Code Ann. sec. 68-32-102. One of the issues before the court was whether the statute required Miles to recall Konyne-HT that had already been manufactured and test it for the virus prior to selling it to Spence in July 1986, but the court avoided that issue and decided the case on narrower grounds. Since sec. 68-32-102 does not reference a statute of limitations, the court determined that the case was based upon products liability and consequently the action must be brought within one year after the expiration of the anticipated life of the product as determined by the expiration date placed on the product, which for this lot of Konyne-HT was June 5, 1987. Spence was diagnosed with AIDS in March 1990 and filed his suit March 20, 1991. Application of Tennessee's products liability statute of limitations thus time- bars Spence's claim. Spence argued that receiving the factor was more analogous to medical service than purchase of a product, but the court narrowly construed the medical service statute to include "the transplanting, injection, transfusion or other transfer of such substances" but not to include the sale of blood clotting factor, thus time-barring Spence's claims. T.V.L. District Judge Motz ruled Sept. 30 in Doe v. American National Red Cross, 1994 WL 575496 (U.S.Dist.Ct., D. Md.), that the defendant Red Cross was entitled to summary judgment in an HIV transmission suit arising from a blood donation taken in January 1984. The plaintiffs, brother and daughter of a woman who died from AIDS in 1992 as a result of her 1984 transfusion, argued that the failure of the blood bank to test donated blood for Hepatitis-B virus (as a surrogate marker for AIDS), to screen donors by directing questioning them about their sexual activity, or to provide warnings about the fatal risk of contracting AIDS from transfusions, violated the blood bank's duty of care at that time. The defendant moved to dismiss on the ground that it was complying with the standard of care of the blood banking industry at that time. Plaintiffs alleged that a jury could conclude that the industry had effectively controlled government regulators and "unduly lagged in the adoption of new and available devices" to prevent harm, citing a ruling to that effect by the Colorado Supreme Court in Quintana v. United Blood Services, 827 P.2d 509 (1992). After reviewing the factual allegations in the light most favorable to the plaintiffs, Motz found that a rational jury could not reach such a conclusion, asserting that plaintiff had presented insufficient evidence that the methods being advocated by plaintiffs were so developed by January 1984 that it would be negligent for a blood bank not to have adopted them. A.S.L. In Skinner v. Glenn, 1994 WL 524036 (U.S.Dist.Ct.N.J.) (not officially reported), the plaintiff, an inmate in a pre)release program in the New Jersey prison system, filed suit against his employer, a recycling company, in a work release program. The plaintiff alleged violation of his civil rights under 42 U.S.C. sec. 1983 in federal court. The injuries sustained included needle sticks suffered while handling garbage which was being recycled. The complaint alleged that Skinner would now have to undergo HIV testing every six months for the next eighteen months, that inadequate precautions were taken to prevent foreseeable injuries of this nature, and that state action was involved, because the work release program somehow implicated his employer as a state actor. The court granted the employer's motion to dismiss, finding that Skinner did not name the state or a state actor as a defendant, and that he was working for a private party under regulations promulgated by the state of New Jersey Department of Corrections which specifically defined the terms of a prisoner's work release program to preclude state involvement during working hours. Thus, no state action could be shown; while Skinner might have a workers' comp claim against the employer, or a tort claim against the state, neither claim could be heard in federal court. S.K. 11th Circuit Rules Against Pregnant Nurse Who Refused to Care For AIDS Patient In Armstrong v. Flowers Hospital, Inc., 33 F.3d 1308, 65 FEP Cases 1742 (Oct. 3), the 11th Circuit Court of Appeals ruled that the hospital had not violated the Pregnancy Discrimination Amendment (PDA) to Title VII of the Civil Rights Act of 1964 by terminating the employment of a pregnant nurse who refused an assignment to care for an AIDS patient. Pam Armstrong had been working for Flowers Hospital for less than a year (and was just about a year and a half out of nursing school) when she was assigned an HIV+ patient with cryptococcal meningitis. Armstrong had recently become pregnant, and became alarmed that treating this patient might prevent a risk to her fetus. She did not consult any expert medical authorities at the hospital, but based her conclusion on her own rereading of some of her textbooks and conversations with some other nurses. She decided to refuse the assignment and was terminated under a hospital rule requiring termination of any nurse who refused a patient assignment. Armstrong claimed her discharge violated the employer's duty not to discriminate against pregnant employees. The district court granted summary judgment on her Title VII claims, and the court of appeals affirmed, finding that her complaint did not state a claim under either a disparate treatment or a disparate impact theory. While it was true that the Supreme Court had upheld an employer's voluntary preferential treatment of pregnant employees in the past, wrote District Judge Ann Conway (M.D. Fla., sitting by designation) for the court, the PDA had never been construed to require preferential treatment, and the hospital's policy was applicable to all nurses, regardless of their pregnancy conditions. Armstrong pointed to specific hospital policies exempting pregnant nurses from caring for patients with hepatitis-B, or from working in radiology, but the court did not find the existence of such policies dispositive, noting that Armstrong had provided no evidence of any specific risk to the fetus when universal precautions were used. * * * U.S. District Judge Donetta Ambrose held in Doe v. Aliquippa Hospital Association, No. 93-570 (W.D.Pa., Sept. 29), that a hospital was not required under the Rehabilitation Act to provide an accommodation to an operating room technician who had developed an extreme fear of contracting AIDS. The technician tested HIV+ after a needle-scratch during surgery, but subsequently tested negative several times. She developed an extreme fear that made it difficult for her to function in the operating room, and resigned when the hospital refused to grant a leave of absence. The court rejected her argument that she suffered a physical or mental impairment of the type covered by the Act. See 3 BNA Health Law Reporter 1445-46 (10/13/94). A.S.L. HIV: Not An Automatic Pass Out of Prison The NY Appellate Division, 1st Dept., turned down a petition by Todd Branham for reduction of his sentence on the ground of HIV infection. People v. Branham, 1994 WL 578521 (Oct. 4). Branham was convicted by a jury of robbery in the second degree and, as a persistent violent felony offender, received a term of 8 years to life. Noting that the sentence was the minimum authorized by statute, the appeals court said that defendant's HIV status does not render the sentence unconstitutional or excessive. There was no mention in the brief per curiam opinion of Branham's actual medical condition; one suspects that he is relatively healthy from the lack of such mention. A.S.L. Maryland Agrees to End Non-Consensual HIV Testing The State of Maryland settled a lawsuit brought by a man who was forced to undergo HIV testing by police officers based on rumors that he was spreading AIDS to others. Doe v. Burger (Washington Times, Oct. 18). The John Doe plaintiff was stopped by police officers on his way to work on Aug. 3, 1992, handcuffed and brought to the police station and forced to submit to HIV testing "because his male companion was infected with HIV" and "County health officials had told the sheriff's office that Mr. Doe had infected his companion and other men." As part of the settlement, the defendant announced that Doe was not deliberately spreading HIV, and that the state would not seek to test people in the absence of probable cause to believe a crime was committed. A.S.L. HIV Discrimination Litigation Notes In an unpublished disposition, the 9th Circuit Court of Appeals rejected the plaintiff's appeal in Dutson v. Farmers Insurance Exchange, 1994 WL 497838 (Sept. 9), from a grant of summary judgment on his HIV discrimination claim brought under Oregon's Handicapped Persons Civil Rights Act. Dutson is an HIV+ insurance agent, whose agency was terminated for a period of time due to charges, later rescinded, that he had forged a signature on some checks. [This is a much simplified statement of a very complex fact pattern.] The issue on appeal was whether Dutson could even make a claim of employment discrimination under the Act. Dutson argued that independent contractors were covered under the Act, but the court found that the Act's coverage was restricted to employees, and that as an insurance agent, Dutson was actually an independent contractor. [The court also rejected Dutson's appeal on a variety of other claims not relevant to his HIV status.] A.S.L. In Matter of Brooklyn Hospital Medical Center, NYLJ, 10/18/94, p. 23, col. 4, the New York Appellate Division, 2nd Dept., affirmed an October 22, 1992 order and judgment of the Supreme Court, Kings County, which had in turn affirmed a decision of the New York City Commission on Human Rights of December 23, 1991. The appeal, brought pursuant to NYC Admin. Code sec. 8-123, stemmed from a Commission decision awarding $25,000 in compensatory damages to the mother of a man who died from AIDS at the hospital. The court decided that the evidence supported the finding that "the hospital discriminated against the complainant by unlawfully withholding the `accommodations, advantages . . . or privileges' of its facility . . . from her because her son was suffering from" AIDS, in violation of Admin. Code sec. 8-107[2] (the city's human rights ordinance). The court further concluded that the damages awarded were supported by the evidence of the mental anguish she had suffered as a result of the hospital's discriminatory conduct "and is within the range of awards approved by this and other courts.". C.B.R. Castle Dental Clinic in Houston agreed to pay $100,000 in damages to Harrison J. Totten to settle a claim that Totten was denied services after disclosing his HIV+ status. The U.S. Justice Department claims this is the first settlement of such a claim against a dental clinic under the ADA. Under the settlement agreement in U.S. v. Castle approved by the U.S. District Court for the Southern District of Texas, the clinic must establish a non-discrimination policy and a training program for its staff, but does not admit having violated the ADA. See 3 BNA Health L. Rep. 1343. A.S.L. EEOC continues in its unbroken chain of successes in putting an end to AIDS-caps in employment-related insurance coverage through settlement of complaints. U.S. District Judge David Hittner approved a consent order Oct. 11 in EEOC v. Tarrant Distributors, No. H-94-3001 (S.D. Tex.), under which Tarrant will drop its $10,000 lifetime cap on AIDS and HIV-related benefits; the defendant had previously agreed to raise the cap as to Stephan Mardock, an employee whose complaint started the case, and to provide an immediate payment of $10,000 for Mardock's health care needs. As part of the settlement, the cap is lifted for all claims after August 1994 and plan documents will be revised to reflect this as of January 1, 1995. In addition, Tarrant will make good $40,000 in unpaid medical bills for Mardock, will donate $20,000 to AMFAR, and will report on compliance for five years to EEOC. In his written order, Judge Hittner holds that ERISA does not preempt ADA or Title VII claims regarding employee benefits, finding that different or lesser benefits for AIDS would violate ADA even if the employer instituted the change prior to the effective date of ADA, because every subsequent denial of benefits is a new violation of ADA. See BNA Daily Labor Report No. 196, 10/13/94, at A-1. A.S.L. AIDS Legislative Notes Bad policy choices? On September 30, California Governor Pete Wilson vetoed two bills that were eagerly sought by the AIDS advocacy community and signed a bill that the community opposed. AB 2610, which would have legalized needle exchange programs, and AB 1364, which would have legalized compassionate use of marijuana for people with AIDS and other life-threatening diseases and would have effected other regulatory changes, were both vetoed. Wilson signed AB 1239, which authorizes non- consensual HIV testing of hospital patients at the request of health care workers who believe they have been exposed to the patient's blood. In Pennsylvania, Governor Robert Casey on September 29 signed a measure authorizing HIV testing of certain convicted sex offenders at the request of their victims, who will be given the test results. The law also provides free HIV testing and counselling for sex crime victims. A.S.L. PUBLICATIONS NOTED & ANNOUNCEMENTS ANNOUNCEMENTS The Department of Law at the University of Lancaster, England, has announced the first conference in the United Kingdom on lesbian and gay legal studies, to be held in September 1995. Anybody interested in offering a paper for the conference should send the title and an abstract (up to 200 words) to either Leslie Moran or Sarah Beresford, Law Department, University of Lancaster, Lancaster, LA1 4YN. Those interested in being on the mailing list for details about the conference should also write, and will receive a preliminary program by the end of 1994. Some students and recent law graduates have launched The National Journal of Sexual Orientation Law, an on-line journal available to those with Internet access. To subscribe, individuals should send the following message (replacing the bracketed phrases with the appropriate information) to listserv@unc.edu: subscribe gaylaw [FIRST NAME][LAST NAME] Subscribers will receive bulletins with short summaries of the articles available and information on how to retrieve them when each new issue comes on-line. The first issue, now available, has several articles by legal academics, one by practitioners, and a student case note. Anyone who wants to get involved, or to contribute briefs to a brief bank that will be maintained by the Journal, should contact the editor-in-chief, Mary Sylla, at mmsylla@gibbs.oit.unc.edu, or call 919-932-1365. This year's theme for the City University of New York's Center for Lesbian and Gay Studies competition for two Rockefeller Residency Fellowships in the Humanities is "The History and Practice of Lesbian and Gay Politics." Fellowships carry an award of $37,000. Dissertation projects will not be accepted. Applications are due February 15, 1995. For information, contact CLAGS at the CUNY Graduate Center, 33 West 42nd Street, Room 404N, New York NY 10036-8099. LESBIAN & GAY & RELATED LEGAL ISSUES: Black, Kimberli R., Personality Screening in Employment, 32 Am. Bus. L. Rev. 69 (1994). Cohen, Daniel I. A., The Hate That Dare Not Speak Its Name: Pornography Qua Semi-Political Speech, 13 L. & Philosophy 195 (May 1994). Cunningham, Andrew J., The European Convention on Human Rights, Customary International Law and the Constitution, 43 Int'l & Comp. L. Q. 537 (July 1994). Dyzenhaus, David, Pornography and Public Reason, 7 Canadian J. L. & Juris. 261 (July 1994). Gavigan, Shelley A.M., Paradise Lost, Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian, and Gay Engagement to Law, 31 Osgoode Hall L.J. 589 (Fall 1993). Jacobs, Andrew M., Rhetoric and the Creation of Rights: MacKinnon and the Civil Right to Freedom From Pornography, 42 U. Kansas L. Rev. 785 (Summer 1994). Johnson, Jeffery L., Constitutional Privacy, 13 L. & Philosophy 161 (May 1994). McEvoy, J.P., The Charter and Spousal Benefits: The Case of the Same-Sex Spouse, 2 Rev. of Constitutional Studies 39 (1994) (Canadian law journal). Weisbrod, Carol, The Way We Live Now: A Discussion of Contracts and Domestic Arrangements, 1994 Utah L. Rev. 777. Student Notes & Comments: Godfrey, Peter C., Defining the Social Group in Asylum Proceedings: The Expansion of the Social Group to Include a Broader Class of Refugees, 3 J. L. & Policy 257 (1994) (note predates recent Justice Department pronouncements on recognizing gays as a social group for asylum purposes). Martin, Jorge, English Polygamy Law and the Danish Registered Partnership Act: A Case for the Consistent Treatment of Foreign Polygamous Marriages and Danish Same-Sex Marriages in England, 27 Cornell Int'l L. J. 419 (Spring 1994). Mullender, Richard, Sado-Masochism, Criminal Law and Adjudicative Method: R v. Brown in the House of Lords, 44 Northern Ireland Legal Q. 380 (Winter 1993). Parsons, Barry M., Bottoms v. Bottoms: Erasing the Presumption Favoring a Natural Parent Over Third Parties -- What Makes This Mother Unfit?, 2 George Mason Ind. L. Rev. 457 (Summer 1994). Paton, Scott C., "The Government Made Me Do It": A Proposed Approach to Entrapment Under Jacobson v. United States, 79 Cornell L. Rev. 995 (May 1994). Specially Noted: Lawyer/film producer Abby Ginzberg has made a video titled "Inside/Out: A Portrait of Lesbian & Gay Lawyers." LeGaL is one of the co-sponsoring organizations for the video, which is also sponsored by the National Education Foundation for Individual Rights, the National Association for Law Placement, and the ABA's Individual Rights and Responsibilities Section, and many other law firms, groups, and individuals. Several LeGaL members are among those interviewed for the video, which has a running time of approximately 35 minutes. It is intended for use in diversity training on issues of homophobia in the legal workplace, and includes simulations as well as interviews, edited into a coherent package. Interview segments are woven together, and interspersed with simulations, in a way that skillfully provides a tight focus and avoids the boredom that would be inherent in an undifferentiated talking heads format. A Discussion Guide with full bibliographic references accompanies the video. Copies are available for $150 from Ginzberg Video Productions, 1136 Evelyn Ave., Albany, CA 94706. The May 1994 issue of the Southern California Law Review (Vol. 67, No. 4), is devoted to the text and introductory comments concerning the Final Report of the Ninth Circuit Gender Bias Task Force. AIDS & RELATED LEGAL ISSUES: Bastow, Karen, Women, AIDS, and Family Benefits: A Case Study, 7 Canadian J. Women & Law 173 (1994). Crowley, Leo T., AIDS-Phobia Claims and the Disabilities Act, New York Law Journal, Oct. 20, 1994, p.3. Schmall, Lorraine, Toward Full Participation and Protection of the Worker With Illness: The Failure of Federal Health Law After McGann v. H & H Music Co., 29 Wake Forest L. Rev. 781 (1994). Student Notes & Comments: Caster, Kevin, The Future of Self-Funded Health Plans, 79 Iowa L. Rev. 413 (Jan. 1994). Storer, Ted, The Americans With Disabilities Act: Will the Insurance Field Change?, 20 Ohio Northern U. L. Rev. 1031 (1994). 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 and Gay Law Association of Greater New York. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in Law Notes is welcome and will be published subject to editing.