Date: Mon, 9 Aug 1999 18:00:20 EDT
From: ASLeonard@aol.com

LESBIAN/GAY LAW NOTES
ISSN 8755-9021 Summer 1999

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; Todd V. Lamb, Esq., New York City; Arthur J. Levy, Esq.,
Brooklyn, N.Y.; Mark Major, Esq., Long Island, New York; Sharon
McGowan, Harvard Law Student, Cambridge, Massachusetts; K. Jacob
Ruppert, Esq., Queens, New York; Daniel R Schaffer, New York City;
Dirk Williams, Esq., Boston, Massachusetts; Robert Wintemute, Esq.,
King's College, London, England; Leo Wong, New York Law School
Student.

Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340,
NYC 10003. 212-353-9118; e-mail: le-gal@interport.net


MASSACHUSETTS HIGH COURT RECOGNIZES GAY FAMILIES      =20

In two decisions issued in recent weeks, the Supreme Judicial Court
of Massachusetts has recognized the reality of lesbian and gay
families, although only one of the decisions had a favorable
outcome on the merits.  In _E.N.O. v. L.M.M._, 429 Mass. 824, 1999
WL 430460 (June 29), the court ruled 5-2 that a probate judge had
jurisdiction to issue a temporary visitation order on behalf of a
lesbian co-parent who had initiated an action for joint custody of
the child she had been raising with her former partner.  However,
in _Connors v. City of Boston_, 1999 WL 500031 (July 8), the court
unanimously concluded that a state law on public employee benefits
preempted the effort by Boston Mayor Thomas Menino to extend health
benefits to the domestic partners of city employees by executive
order.

The opinion in _E.N.O._ by Justice Abrams treats the decision to
allow a same-sex co-parent to sue for custody and visitation as
almost routine, a stance that drew an infuriated dissenting opinion
by Justice Fried (who retired from the court with the issuance of
this opinion).  Although Massachusetts domestic relations laws do
not specifically authorize a legally unrelated third party to seek
custody of or visitation with a child, the court held that the
legislature has given the Probate Court equity jurisdiction, and in
family law matters this should be exercised in the best interest of
the child. =20

"The Probate Court's equity jurisdiction is broad," wrote Abrams,
"extending to the right to authorize visitation with a child.  This
is because the Probate Court's equity jurisdiction encompasses `the
persons and estates of infants'" (quoting _Gardner v. Rothman_, 345
N.E.2d 370 (Mass. 1976), where the court allowed the father of an
illegitimate child to seek visitation despite the lack of specific
statutory authorization).  "The court's duty as parens patriae
necessitates that its equitable powers extend to protecting the
best interests of children in actions before the court, even if the
Legislature has not determined what the best interests require in
a particular situation."

The case involved a couple who had "shared a committed, monogamous
relationship for thirteen years," during which they executed
documents seeking to formalize their relationship.  They were
living in Maryland when they decided to become parents through the
insemination of L.M.M.  E.N.O. participated fully throughout the
pregnancy, attending birthing workshops and so forth, and attending
the insemination sessions and participating in making medical
decisions.  The women made a written contract that specified that
if they broke up in the future, E.N.O. would continue to have
parental rights towards their child.  L.M.M.'s pregnancy during
1994 was <69>complicated."  When the son was born in 1995, E.N.O.
acted as L.M.M.'s birthing coach and cut the umbilical cord.  The
hospital staff treated E.N.O. as a mother of the child, and birth
announcements were sent out in both of the women's names.  E.N.O.
assumed most of the responsibility for supporting the family during
the months following the child's birth, and as L.M.M. experienced
medical difficulties, E.N.O. also assumed primary caregiver
responsibility for the child for some time. =20

The family moved to Massachusetts in September 1997, and in April
1998 E.N.O. contacted an attorney to explore a joint adoption
proceeding so that both would be legal mothers.  Shortly after
this, their relationship deteriorated and they separated in May.=20
L.M.M. then denied E.N.O. any further access to the child, and
E.N.O. initiated this litigation, obtaining a temporary visitation
order from the Probate Judge which was reversed by the Court of
Appeal. =20

Turning to the issue of "best interest of the child," Abrams noted
that the Probate Judge "emphasized the plaintiff's role as a parent
of the child.  It is our opinion that he was correct to consider
the child's nontraditional family.  A child may be a member of a
nontraditional family in which he is parented by a legal parent and
a de facto parent.  A de facto parent is one who has no biological
relation to the child, but has participated in the child's life as
a member of the child's family.  The de facto parent resides with
the child and, with the consent and encouragement of the legal
parent, performs a share of caretaking functions at least as great
as the legal parent. . .  The de facto parent shapes the child's
daily routine, addresses his developmental needs, disciplines the
child, provides for his education and medical care, and serves as
a moral guide.

"The recognition of de facto parents is in accord with notions of
the modern family," Abrams continued.  "An increasing number of
same gender couples, like the plaintiff and the defendant, are
deciding to have children.  It is to be expected that children of
nontraditional families, like other children, form parent
relationships with both parents, whether those parents are legal or
de facto. . .  Thus, the best interests calculus must include an
examination of the child's relationship with both his legal and de
facto parent."

Abrams then summarized the factors to which a court should look in
determining whether somebody is a de facto parent who should be
considered a viable candidate for custody or visitation rights,
including whether there was a substantial parent-child
relationship, whether the candidate had assumed a formal role in
the child's life evidenced by legal documents, whether the legal
parent had treated the candidate as a parent of her child in the
past, whether they had lived together for some time as a family,
and whether the candidate had demonstrated an interest in
continuing the relationship with the child.

Abrams rejected the argument, recently accepted in a Florida case,
_Kazmierazak v. Query_, 1999 WL 415215 (Fla.App., 4th Dist., June
23) (see below), that recognizing a lesbian co-parent as a de facto
parent entitled to contest custody and visitation would improperly
restrict the legal parent's fundamental right, as a fit parent, to
custody of her child, founded on a liberty interest in the 14th
Amendment (and the due process clause of the state constitution)
that has been recognized by the U.S. Supreme Court in _Stanley v.
Illinois_, 405 U.S. 645 (1972), and the Massachusetts Supreme
Judicial Court in _Opinion of the Justices_, 691 N.E.2d 911 (Mass.
1998).  Abrams insisted that such rights are not "absolute," and
that the court "must balance the defendant's interest in protecting
her custody of her child with the child's interest in maintaining
her relationship with the child's de facto parent.  The intrusion
on the defendant's interest is minimal.  What tips the scale is the
child's best interests."

Distinguishing this case from cases where a putative father brings
a paternity suit that threatens to disrupt a family unit, Abrams
said, "The family that must be accorded respect in this case is the
family formed by the plaintiff, the defendant, and the child.  The
defendant's parental rights do not extend to the extinguishment of
the child's relationship with the plaintiff. . .  The child's
interest in maintaining his filial ties with the plaintiff counters
the defendant's custodial interest. . .  The only family the child
has ever known has splintered.  The child `is entitled to be
protected from the trauma caused by the disruption' of his
relationship with the plaintiff" (citation omitted). =20

Having noted that the Probate Court's decision was consistent with
the recommendation of the Law Guardian appointed to represent the
child's interest, the court reversed the court of appeals and
reinstated the Probate Court's temporary visitation order, pending
a final disposition on the merits of the case.

In dissenting, Justice Fried characterized what the court had done
as "judicial lawmaking," insisting that L.M.M., as a fit legal
mother, had the right to determine who would associate with her
son.  "The probate judge's order in this case was wholly without
warrant in statute, precedent, or any known legal principle," Fried
remarked, "and yet the majority of this court has upheld it.  As
such, the opinion the court delivers today is a remarkable example
of judicial lawmaking.  It greatly expands the courts' equity
jurisdiction with respect to the welfare of children and adopts the
hitherto unrecognized principle of de facto parenthood as a sole
basis for ordering visitation.  Even while expanding judicial
authority and making an addition to the common law, the court
speaks as though its decision were nothing extraordinary.  In light
of the denigration of parental rights and the judicial infringement
on the province of the Legislature effected by the court's
decision, all without an acknowledgement of the novelty of that
decision, I must respectfully dissent."  Fried was particularly
critical of the court's mentioning of the contract that two women
had made, guaranteeing E.N.O. continued parental status in the case
of a split-up, since such agreements have traditionally been held
to be unenforceable.  In a footnote, the court rejected Fried's
criticism, saying it was not enforcing that contract but rather
treating it as evidence of the women's intentions in creating their
family unit.

The court's decision was foreshadowed by its ruling in _Youmans v.
Ramos_, 711 N.E.2d 165 (Mass. June 22, 1999), in which it upheld
continued visitation rights for a child's maternal aunt against the
wishes of the child's father, based on the broad equitable powers
of the probate court.  The issue of same-sex co-parent rights to
visitation or custody after a couple splits up has sharply divided
the appellate courts of the states, but support for the view
embraced in this case by the Massachusetts Supreme Judicial Court
is growing.

Fried came closer to getting his way in the second decision,
_Connors v. City of Boston_.  (According to a note to the decision,
Fried participated in the deliberations, but had resigned from the
court by the time the opinion was finalized.)  The mayor and city
council of Boston were poised to extend benefits eligibility to
domestic partners of city employees, but doubts were raised about
their ability to do so without specific state legislative
authorization.  State legislative leaders also had some doubts
about the propriety of doing this, and an advisory opinion from the
court eventuated in 1998, _Opinions of the Justices_, 427 Mass.
1211, in which six members of the court concluded that the
legislature could delegate to the city of Boston the authority to
define domestic partnership for the purpose of extending such
benefits.  The legislature passed a bill for this purpose, but
Governor Paul Celluci, a Republican, vetoed the bill, voicing his
concerning that including unmarried opposite-sex couples as
domestic partners, as the city planned to do, would undermine the
state's interest in promoting marriage.

With the city council stymied from acting, Mayor Menino went ahead
on his own, issuing an executive order extending the benefits.  A
group of taxpayers, led by plaintiff Dennis Connors, then filed
suit, claiming that the mayor and city lacked authority to extend
such benefits.  A superior court judge agreed with the plaintiffs,
and issued an order to stop the law from going into effect.  The
case was certified to the Supreme Judicial Court to consider
whether the mayor's executive order is inconsistent with state law
and thus a violation of the city's home rule powers.

In agreeing with the plaintiffs, the court adopted a rather strict
reading of the statutory language, concluding, in an opinion by
Justice Margaret Marshall, that the legislature had indeed intended
to authorize local governments to extend benefits eligibility
_only_ to the legal spouses and dependent children of municipal
employees, and that this was the exclusive source of authority for
cities to provide benefits to anyone other than their own
employees. =20

The opinion is given over largely to the arcana of local government
legislative authority.  However, towards the end of the opinion,
Justice Marshall notes that the benefits legislation was enacted at
a time when family structures were quite different from the
present, leaving the suggestion that the legislature should revisit
this issue. =20

"When the Legislature enacted G.L. c. 32B in 1955, c. 760, it
defined the term `[d]ependents' in a manner consistent with the
then-prevalent view of persons for whom the beneficiary (the
employee) likely had an obligation to provide support, and who
reasonably could be viewed as relying on the beneficiary for
support. . . We recognize that the category of covered dependents
of city employees, as defined by the Legislature in 1955 and 1960,
no longer fully reflects all household members for whom city
employees are likely to have continuing obligations to provide
support.  A `family' may no longer be constituted simply of a wage-
earning father, his dependent wife, and the couple's children.  We
also recognize that the categories of household members who may
rely on a wage earner for support have broadened over time. . . =20

"Adjustments in the legislation to reflect these new social and
economic realities must come from the Legislature, whether it does
so by expanding the statutory definition of `dependent' or by
authorizing governmental units to define for themselves the term
`dependent.' Our decision is mandated only because, in the context
of group health insurance provided by governmental units for their
employees, the Legislature has defined precisely the scope of the
term dependent to exclude all but spouses, unmarried children under
nineteen years of age, and older children in limited circumstances.
. .  Had the mayor sought to extend group health insurance benefits
to other categories of household member beyond those defined by the
Legislature, our conclusion would be the same.  We recognize that
some household members of some of Boston's employees may be without
a critical social necessity, health insurance.  That is a reality
that must be addressed by the Legislature."

Ultimately, the decision has greater reach than the city of Boston,
since four other municipalities in the state have previously
extended eligibility for benefits to domestic partners of their
employees, and the validity of whose programs is now thrown into
doubt by this decision.  Since no appeal is possible, an attempt to
work out an agreement between the governor and the legislature over
an appropriate legislative resolution is next on the agenda for
proponents of domestic partnership coverage.

The city's defense of its benefits program was carried on by David
Mills and Assistant Attorney General Robert L. Quinan, Jr., with
amicus support from Jennifer Levi and Mary L. Bonauto of Gay &
Lesbian Advocates & Defenders on behalf of a group of lesbian and
gay city employees whose benefits were affected by the outcome.  In
_E.N.O., the plaintiff was represented by E. Oliver of Boston and
Mary Bonauto of GLAD; while Elaine M. Epstein and Gary Owen Todd
represented the defendant and Bettina Borders represented the
child's interests.  A.S.L.

LESBIAN/GAY LEGAL NEWS=20

Nebraska Supreme Court Condemns Gay Bar Decorations as Obscene

Operators of gay bars in Nebraska will have to tone down the
sexual component of their wall decorations as a result of a
unanimous ruling by the Nebraska Supreme Court in _Tipp-It, Inc. v.
Conboy (July 9).  Evaluating three pictures that were hanging on
the wall in the basement of "Run Bar," an Omaha establishment
operated by Terry Tippit, the court found the pictures to be
constitutionally unprotected obscenity, whose further exhibition
could subject Tippit to criminal charges.

Tippit had applied to the city for a certificate of occupancy for
the basement bar, and local fire inspectors were sent to examine
the premises.  The fire inspectors complained to the police
department that there were offensive pictures on the walls.  A
police officer visited the bar at 10 p.m. on December 13, 1994, and
seized three pictures (out of 22 hanging in the basement) on
grounds of obscenity.  After discussing the matter with the local
prosecutor, Tippit filed a declaratory judgment lawsuit in the
Douglas County District Court, seeking a declaration that the
pictures were art protected by the 1st Amendment.=20

The trial court's description of the pictures indicates that they
each depicted naked men sporting exaggeratedly large penises,
apparently in the act of engaging in oral or anal sex or having
just engaged in sex.  In other words, the pictures went beyond=20
nudity to depict actual sexual activity in a manner designed to
"turn on" gay patrons of the bar.  The trial court heard testimony
from Dr. Robert Aikin, chairman of the Department of Fine and
Performing Arts at Creighton University, as an art expert.  Aikin
indicated that whether viewed objectively based on principles of
artistic composition or subjectively based on whether a particular
picture has been selected for exhibition or publication, these
pictures did not qualify as having any particular artistic value.=20
The trial court concluded that the pictures were obscene, and
Tippit appealed.

In an opinion by Chief Justice Hendry, the Supreme Court applied
the U.S. Supreme Court's well-established obscenity test under the
case of _Miller v. California_, 413 U.S. 15 (1973), under which a
picture loses 1st Amendment protection if it fails a three-part
test that is applied to "hard core" depictions
of sexual activity.  In _Miller_, the Supreme Court stated that
this standard would apply to "patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, actual
or simulated, or patently offensive representations or descriptions
of masturbation, excretory functions, and lewd exhibition of
genitals."  In sec. 28-807(15), the Nebraska legislature described
the type of material it sought to regulate depictions of acts of
"sexual conduct," including "acts of ... homosexuality, sodomy,
sexual intercourse, or prolonged physical contact with a person's
clothed or unclothed genitals."  In short, as far as the Nebraska
legislators are concerned, any depiction of sexual conduct is
potentially condemned as "obscene."

According to _Miller v. California_, obscene materials are those
that "taken as a whole, appeal to the prurient interest in sex,
which portray sexual conduct in a patently
offensive way, and which, taken as a whole, do not have serious
literary, artistic, political, or scientific value."  (This is the
test under which a Cincinnati jury found a few years ago
that Robert Mapplethorpe's homoerotic photographs, which had been
displayed in a local art museum, were not obscene.)

Nobody could argue with Chief Justice Hendry's conclusion that the
three pictures were designed to appeal to a prurient interest in
sex.  Both their content and the context in which they were being
exhibited was explicitly sexually charged.  Hendry also concluded
that the depiction of sex was patently offensive, without any
explanation as to why.  Clearly, the fire inspectors were offended
by the pictures, but one might question the standard to be used for
evaluating pictures hanging in the basement bar of an establishment
whose clientele were entirely gay men.  However, litigants have
generally been unsuccessful in getting courts to apply a
specialized standard to evaluate material whose distribution is
being targeted only to a particular part of the population.

Finally, the court said that although it was not bound to follow
Dr. Aikin's conclusion as part of its de novo review, it noted that
Aikin's testimony was the only expert testimony offered at trial
and was uncontradicted.  (The court never indicates in the opinion
which side called Aikin as an expert witness.)  Hendry agreed with
Aikin that the pictures lacked any serious artistic value.

In a significant procedural ruling prior to addressing the merits,
the court found that even though this was a civil declaratory
judgment action initiated by Tippit rather than a prosecution, it
was up to the state to show that the materials were obscene beyond
a reasonable doubt in light of the serious constitutional issues
raised and the possibility of criminal prosecution turning on the
outcome of that determination.

Although the court was unanimous in its conclusion, two members
sought to qualify their participation in the result with concurring
statements.  In the longer of the two, Justice Gerrard concurred
"reluctantly" and wrote separately on the issue of the "`value' of
the material at issue."  Wrote Gerrard: "The trial court and the
majority in this case rely upon the opinion of Dr. Roger Aikin, an
acknowledged expert in the field of art.  I find Aikin's testimony
to be marginally persuasive. . .  I do find Aikin's testimony,
however, to be essentially uncontradicted, and his qualifications
and the foundation for Aikin's opinion have not been challenged on
appeal."  Thus, as the court was confined on appeal to the record
as presented, Gerrard concurred in the result, but clearly would
have preferred to have seen the plaintiff bring forward some sort
of expert testimony to challenge Aikin's views.  Justice Miller-
Lerman added a single sentence in concurrence, making clear that
concurrence was based on "the applicable standard of review [i.e.,
whether the trial court's decision was clearly erroneous] and the
record with which we are presented."

This appears to be the first major court decision since the
Mapplethorpe case to consider specifically whether artistic
depiction of gay sex is obscene.  The court's conclusion that the
state may seize and destroy these pictures on grounds of obscenity
suggests that the 1st Amendment's command that the government make
"no law abridging the freedom of speech" ring rather hollow when it
comes to gay sex.  A.S.L.

Florida Appeals Court Rejects Custody Claim by Lesbian Co-Parent on
Standing Grounds

In another setback for non-biological parents, a Florida Court of
Appeals denied the petition of a lesbian co-parent for custody and
temporary visitation of her child.  In _Kazmierazak v. Query_, 1999
WL 415215 (June 23), the District Court of Appeal of Florida, 4th
Dist., upheld a trial court's denial of Penny Kazmierazak's
petition for failure to state a cause of action and lack of
standing to seek custody or visitation.  The court held that
Kazmierazak's status as "psychological parent" was neither adequate
for purposes of standing nor sufficient to trump the interests of
the biological parent.=20

In discussing the case, Judge Gunther offered little detail
regarding the relationship of Penny Kazmierazak, Pamela Query and
their child.  In her petition, Kazmierazak alleged that Query "may
not be a fit and proper person to retain custody of the minor" and
"it is in the best interest of the minor" that she be awarded
custody.  However, the court observed that Kazmierazak did not
assert that the child is suffering any demonstrable harm or that
"it will be detrimental to the child to deny her custody or
visitation."
=20
As this case hinged on the procedural issue of standing, the court
focused on Florida law granting parental rights to non-biological
parents.  First, the court reviewed the statutory provisions
whereby a non-parent may petition for custody or visitation of
another's child, and found none of these applicable to
Kazmierazak's situation.  Chapter 39 allows a non-parent to file a
petition for dependency.  Chapter 61 allows a grandparent, in
certain situations, to obtain custody or visitation during a
divorce proceeding.  Finally, Chapter 61 allows a non-parent to
petition for adoption without the consent of the biological parent
when the biological parent has been found to have deserted or
abandoned the child. =20

The court also relied on Florida's constitutional right of
"parental privacy," which prevents "state intervention, either
through the legislature or the courts" in the constitutionally
protected sphere of child-rearing.  The court noted that in _Von
Eiff v. Azicri_, 720 So.2d 510 (Fl. 1998), the Florida Supreme
Court struck down a grandparent visitation provision because it did
not require a threshold showing of demonstrable harm to the child
before interfering with the constitutional rights of the biological
parents.  However, Kazmierazak tried to circumvent _Von Eiff_ by
arguing that a  psychological parent to the child is on "equal
footing with [her partner, the biological mother] and no longer
confronts the aforementioned impediments to seeking custody or
visitation with the child."

The court then undertook an analysis to determine whether or not a
psychological parent has the same rights as a biological parent
under Florida law.  Judge Gunther discussed the three cases relied
on by Kazmierazak -- _Wills v. Wills_, 399 So.2d 1130 (Fla. 4th DCA
1981), _Simmons v. Pinkey_, 587 So.2d 522 (Fla. 4th DCA 1991), and
_Heffernan v. Goldman_, 256 So.2d 522 (Fla. 4th DCA 1971).  In
_Wills_, the court granted temporary visitation to a step-mother
during a dissolution action.  However, Judge Gunther pointed out
that the court's reasoning in Wills turned on the "best interest of
the child without explicitly resolving the question of the standing
of the psychological parent to seek visitation."  The court also
relied on the "best interest of the child" standard in _Simmons_,
where the court denied the petition of the biological father, who
was in prison for killing the biological mother, and granted
custody to the foster mother with reasonable visitation for the
father.  The "best interest" standard also dictated the result in
_Heffernan_, where the court granted custody to the step-mother
despite the biological mother's petition for custody.=20

Although these cases appear to support common law rights for
non-biological or psychological parents, Judge Gunther insisted
that these precedents must be reexamined in light of _Von Eiff_.=20
If grandparents, who were endowed with a statutory entitlement in
_Von Eiff_, could not constitutionally be permitted to infringe on
the privacy rights of biological parents, then parties such as
Kazmierazak, who could not even assert a common law right to
custody or visitation, clearly do not have "rights equivalent to a
biological parent."  =20

In further support of its decision, the court considered non-4th
District cases, including another lesbian custody dispute, _Music
v. Rachford_, 654 So.2d 1234 (Fla. 1st DCA 1995), where the court
rejected the claims of the non-biological mother that she was a de
facto parent to the child (Editor's Note: Ironically, the theory
that carried the day in Massachusetts shortly after this Florida
decision was issued).

Judge Gunther's decision and the special concurrence of Judge Gross
reemphasize the relationship of family law questions to the
same-sex marriage struggle.  Gunther gave little consideration to
Kazmierazak's in loco parentis argument because "this concept has
arisen only in the context of a marital relationship."  Gross
focused primarily on questions of the court's jurisdiction, writing
that "the court's power to determine child-related issues should
derive from its jurisdiction over dependency, juvenile, dissolution
of marriage and adoption proceedings." Gross called on the court to
discontinue its practice of creating "poorly defined relationships
such as `psychological parents,' which then confer rights on the
recipients of the label against a natural parent."  Furthermore,
Gross insisted that _Heffernan_ was wrongly decided even before
_Von Eiff_, and that the decision in _Wills_, far from granting
general rights to step-mothers, hinged on the fact that the
step-mother in _Wills_ had rights as a party to a dissolution
proceeding.=20

In a noteworthy final paragraph, Judge Gross went straight to the
heart of the matter when he said that "[t]he real problem in this
area is section 63.042(3), Florida Statutes (1997), which prevents
someone like appellant from creating that type of legal
relationship with a child that would confer legal rights and
obligations."  Specifically, Sec. 63.042(3) states: "No person
eligible to adopt under this statute may adopt if that person is a
homosexual."  Judge Gross noted that the constitutionality of this
provision, under either the privacy or equal protection clause, has
not yet been tested in his district or by the Florida Supreme
Court.  Gross asserted that _State v. Cox_, 627 So.2d 1210 (Fla. 2d
DCA 1993), which upheld the statute against a constitutional
challenge, "does not appear to be the last word on the issue,"
noting the lack of an evidentiary record in that case.  So, despite
the short-term defeat for non-biological parents, _Kazmierazak v.
Query_ may set the stage for future challenges to Florida's
homophobic family laws.  _Sharon McGowan_

Florida Appeals Court Reverses Dismissal of Defamation Claim by Gay
Judge

The Florida District Court of Appeal for the 5th District has
revived a defamation action brought by Rand Hoch, a gay man who was
a Florida Workers Compensation Judge, against a law firm for
statements members of the law firm allegedly made during a seminar
presented to the employees of a corporation that represents
employers before in the Workers Compensation forum.  _Hoch v.
Rissman, Weisberg, Barrett_, 1999 WL 445800 (July 2).  Hoch alleges
that the defamatory comments, suggesting that his decisions could
be influenced by playing on his sexual interests, led to his not
being reappointed to the bench.

The Rissman law firm presented a series of seminars during the
early 1990s as a way of promoting their business of Workers
Compensation representation.  In May 1994, the firm presented a
seminar for employees of the Riscorp Corporation, which provides
workers compensation defense representation.  In the course of
discussing workers compensation judges, one of the speakers is
alleged to have said, according to the recollection of two of the
attendants, that "if you wanted to influence Judge Hoch, you should
send men in tight shorts before him," and that the litigators
should be blond.  Subsequently, a tape cassette of this lecture
showed up in another law firm=FEs offices, where it was transcribed;
ultimately, a transcription of the tape came into the possession of
another attorney, and ultimately was distributed widely in the
local legal community.  Shortly thereafter, Judge Hoch, who
believed he had been unanimously recommended for reappointment by
the appropriate screening process, was denied reappointment.  Hoch
brought a defamation and conspiracy action against the Rissman
firm, and the other law firm where the cassette had been
transcribed.  The Orange County Circuit Court granted summary
judgment against Hoch.

Writing for the court of appeal, Judge Sharp found that Hoch had
alleged the necessary elements of defamation and conspiracy, and
that material factual issues were in dispute, so judgment should
not have been granted without a trial.  There was sufficient
evidence in the record from which a fact-finder could conclude that
the allegedly defamatory statements had been made; at least two of
those attending the seminar recalled similar statements, the
transcription of the tape included the statement, and the notes of
one of the speakers included phrases that suggested the statement
had been made. =20

The defendants contended that Hoch had failed to allege special
damages with sufficient specificity, but the court found that the
statement, if made, would be defamatory per se, because it imputed
to Hoch conduct inconsistent with his professional obligations, and
thus no special damages need be shown to make the statement
actionable.  The court rejected the contention that the Rissman
attorneys=FE comments were privileged, finding that the seminar was
an educational program, not an occasion of attorney-client
consultation. Sharp also rejected the defendants=FE contention that
the statement was merely an expression of opinion, finding that
"the comment about Hoch implies that he could be improperly
influenced in his judicial decision-making.  this comment is based
on facts not disclosed and would not be an expression of pure
opinion."  As Hoch was a public official, the statements would not
be actionable unless made with actual malice; in this case, Sharp
found that the Rissman attorneys had conceded that they knew the
statements to be false, and that they were probably made in jest,
so it would be possible for a fact-finder to conclude that the
malice requirement had been met.  Sharp found that the factual
allegations were also sufficient to support Hoch=FEs conspiracy
theory, i.e., that the statements were made by one or more of the
Rissman attorneys "pursuant to a common plan or scheme formulated
by the Rissman defendants to promote their own economic interest."

However, the court found that the trial court had properly granted
summary judgment in favor of the other law firm defendant, finding
that there was no specific allegation in the complaint concerning
that firm=FEs role in publishing the defamatory statement (as
contained in the transcript produced from the tape cassette of the
meeting).  Thus, the lower court=FEs decision was affirmed in part,
reversed in part, and remanded for trial on Hoch=FEs claims against
the Rissman firm.

Hoch is openly gay.  The defamation issue in this case is not the
imputation of homosexuality, but rather the imputation that due to
his homosexuality Hoch=FEs decision-making could be influenced by
sending handsome young blond representatives to appear before him,
and the case concerns per se defamation because the statement could
be taken to impute to Hoch a susceptibility to improper influences
on his judicial decisionmaking. A.S.L.

Texas Appeals Court Upholds Temporary Injunction Against Houston
Executive Order

A temporary injunction halting enforcement of an executive order
issued by Houston, Texas, Mayor Lee Brown banning discrimination
based on sexual orientation in connection with the activities of
the Houston municipal government, was recently affirmed by a Texas
appeals court.  _Hotze v. Brown, 1999 WL 418363 (Tex.App., 14th
Dist., June 24).

In 1985, after the city council passed a gay rights bill, there was
a referendum which repealed the bill.  In 1998, newly-elected Mayor
Brown signed an executive order prohibiting discrimination based on
sexual orientation that applied only to activities and employees of
the City of Houston.  Richard Hotze, an organizer of the referendum
repeal drive, and Councilman Rob Todd sought a temporary injunction
to halt enforcement of the executive order, arguing that, under the
Houston City Charter, only the civil service commission, with the
City Council's approval, may make rules and regulations pertaining
to civil service employees (Houston Code, Art. V-a, 2, 4).  In
their motion, Hotze and Todd argued that, by issuing an executive
order applicable to civil service employees, Brown usurped the
powers granted to the City Council and civil service commission and
thereby exceeded his legal authority.  The trial court granted the
motion, while holding that Hotze did not have standing to
participate in the litigation as a plaintiff.

On appeal, Hotze claim that the trial court erred in finding that
he lacked standing to maintain the action.  The appeals court, in
an opinion by Chief Justice Paul C. Murphy, agreed with the trial
court, ruling that Hotze, a private citizen, did not suffer a
"special" injury; i.e., he had not been injured in a way that was
different than any other member of the general public.  A person
seeking to enjoin governmental actions must demonstrate that he or
she has been injured other than as a member of the general public.=20
Hotze asserted standing as (i) a voter whose vote against the
referendum was nullified by Brown's action, (ii) a taxpayer trying
to enjoin the City from spending tax revenues for purposes of
enforcing an ultra vires executive order, (iii) a person who was
affected by Brown's violation of the City Charter and (iv) a person
who spent time and effort to defeat the city council ordinance.=20
Except for the last assertion, Justice Murphy found that Brown's
actions did not affect Hotze differently than they affected any
other citizen who voted against the referendum. To support his
fourth assertion, that he had spent time and effort on the
referendum, Hotze cited a case which held that the appellants had
standing because they incurred extraordinary expenditures to win a
special election and so had suffered a distinct and palpable
injury.  The court distinguished that case by noting that Hotze did
not have a palpable injury; he merely expended time and effort in
the campaign.

In their first cross point, defendants argued that the trial court
erred in ruling that City Councilman Todd (i) had standing to
assert his claims and (ii) had legal authority, i.e., capacity, to
bring the suit.  The appeals court agreed with the trial court.=20
Murphy first looked at Todd's assertion of standing, which rested
upon his lawmaking capacity as a City Councilman, specifically: (i)
the executive order denied him his right to participate in the
decision-making process in an area in which the City Council has
exclusive jurisdiction; (2) the executive order, if allowed to go
into effect, would put the City Council in perpetual conflict with
the Mayor; and (3) Brown's action nullified Todd's vote.  Citing
numerous cases from other states, as the issue of lawmaker standing
is a matter of first impression in Texas, the Murphy concluded that
Todd could establish standing based on his allegation that his
power as a City Councilman was usurped.  Todd, unlike Hotze, has an
interest peculiar to himself that was different than that of the
general public.=20

The court next considered whether Todd had capacity to bring the
suit.  The defendants argued that Todd was not authorized to act on
behalf of the City Council.  Murphy readily dispatched this
argument by stating that Todd did not specifically allege that he
was acting on behalf of the City Council; rather, he asserted his
rights only on his own behalf as a member of the City Council.=20

The appeals court next considered the validity of the temporary
injunction that the trial court issued to prevent the order from
going into effect, noting that an appeals court may reverse the
grant of a temporary injunction only if the record shows a clear
abuse of discretion.  The trial court had found that if enforcement
of the executive order were not halted Todd (i) would be imminently
and irreparably injured by the loss of his authority and (ii) had
a probable right to recovery.  Justice Murphy agreed: injury was
imminent because enforcement of the order would usurp Todd's
authority as a legislator instantly. If the order were enforced,
City employees would be limited in their ability to act. By failing
to enact a similar rule, the City Council was affirming a "hands
off" policy with regard to those types of discriminatory actions,
which policy was in conflict with the Mayor's executive order. In
addition, the court held that the injury was irreparable because
Todd's loss of authority was not compensable by money damages and,
because monetary damages could not be calculated, there was no
adequate remedy at law. =20

Finally, the appeals court considered whether Todd established a
probable right to recovery.  The Houston City Charter grants the
City Council approval power over anti-discrimination rules for City
employees, yet Brown did not obtain such approval prior to
promulgating the executive order in question.  Murphy found that
the trial court did not abuse its discretion in finding that Todd
established a probable injury and a probable right of recovery, and
therefore it did not err in granting Todd's application for a
temporary injunction.  _Elaine Chapnik_

San Francisco Equal Benefits Ordinance Survives Additional Court
Challenge

San Francisco's Equal Benefits Ordinance, which requires companies
doing business with the city to provide spousal benefits to the
registered domestic partners of its unmarried employees, has
survived a second round of legal challenges by the airline industry
and a fundamentalist Christian-backed contractor.  In two separate
rulings, Judge Claudia Wilken of the U.S. District Court for the
Northern District of California upheld the general validity of the
ordinance and granted summary judgment in favor of the city.  _Air
Transportation Association of America v. San Francisco_, 1999
U.S.Dist. Lexis 8747 (May 27); _S.D. Myers v. San Francisco_, 1999
U.S.Dist. Lexis 8748 (May 27).  As a result of these decisions, San
Francisco may withhold and withdraw contracts from any company that
refuses to provide an employee's registered domestic partner with
non-ERISA benefits such as relocation compensation, free travel
privileges, bereavement leave and family
medical leave, to the extent that these benefits are provided to a
heterosexual married employee's spouse.

As reported in the May 1998 issue of _Lesbian/Gay Law Notes_, the
airline industry won a partial exemption from the Equal Benefits
Ordinance last year, after Judge Wilken ruled that due to federal
preemption of regulation of the airline industry, San Francisco
could not compel airlines to provide certain health insurance and
pension benefits to registered domestic partners as the expense
involved could affect the airlines' routing decisions.  In that
ruling, the court left open whether ERISA preemption would apply to
proprietary city contracts outside the airline arena.  Judge Wilken
also ruled in April 1998 that the dormant commerce clause precluded
the city from requiring contractors to extend spousal benefits to
the registered domestic partners of employees who work outside of
San Francisco and whose work does not directly relate to a contract
with the city.

The airline industry's most recent legal foray, led by plaintiff
Air Transportation Association of America and newcomers
Federal Express and United Airlines, argued that the Airline
Deregulation Act (ADA) precluded San Francisco from requiring
airlines to provide even non-ERISA benefits to an employees'
registered domestic partner.  United Airlines currently offers
three such benefits to heterosexual married employees and their
spouses: paid bereavement leave if a spouse dies, unpaid medical
leave if a spouse or spouse's family member becomes seriously ill,
and flight discounts for spouses.  Federal Express provides these
and two other benefits: flowers for an employee whose spouse has
died and discounted package shipping for spouses.=20

The ADA provides that state and local authorities "may not enact or
enforce a law, regulation or other provision having the force and
effect of law related to price, route, or service" of an airline.=20
The court concluded in its April 1998 ruling that the Equal
Benefits Ordinance was not related in any way to services or
prices.  Therefore, Judge Wilken held that ADA preemption would
apply only if the plaintiffs could demonstrate that "the potential
cost or other burden of bringing a carrier's benefit plans into
compliance with the otherwise-valid portions of the Ordinance is so
great that air carriers will be coerced into changing their
routes."  In adopting this burden of proof, and rejecting the less
onerous standard advanced by the plaintiffs, Judge Wilken sought to
weed out challenges to ordinances whose effects "are too remote to
frustrate the goals of the ADA and require preemption."=20

The court concluded that the evidence failed to demonstrate that
the benefits at issue would have the necessary impact on the
plaintiffs to trigger ADA preemption.  Judge Wilken noted that
"although plaintiffs speculate that burdens associated with the
Ordinance could influence the timing of some carriers' decisions,
or hypothetically lead them to avoid doing business with the City,
Plaintiffs provide no proof that they, or the members they
represent, are seriously considering not flying in or out of San
Francisco, or limiting or rejecting future business or expansion,
as a result of the burdens of complying with the Ordinance."  The
court therefore granted summary judgment to the city on the
plaintiffs' preemption claims.

The plaintiffs moved for an injunction barring enforcement of the
court's order pending an appeal to the 9th Circuit.  The court
requested further briefing from the parties on this issue, and held=20
that it would not lift the preliminary injunction which it issued
in October 1998 until it ruled on plaintiffs' motion.

The second suit recently adjudicated by Judge Wilken was brought by
S.D. Myers, Inc. (SDMI), an Ohio-based company that provides
maintenance service to private and government entities for large
electrical transformers.  SDMI claims to conduct its business "in
accordance with Christian biblical principles."  According to
SDMI's complaint, one of these principles is the belief that if it
gave health insurance to registered domestic partners of employees,
it "would be approving a lifestyle that God has said we are not to
approve of."  SDMI provides its heterosexual married employees and
their spouses with benefits including health, vision, dental,
disability and life insurance.  SDMI also offers employees and
their lawful spouses two non-ERISA benefits: bereavement pay and
family medical leave.

Prior to the enactment of the Equal Benefits Ordinance, San
Francisco contracted with SDMI to maintain electrical transformers
on city property in Toulome, California.  In 1997, San Francisco
invited bids on a new contract for maintenance services on
city-owned electrical transformers located outside city limits.=20
SDMI was the lowest qualified bidder.  The city rejected SDMI's
request for an exemption from the requirements of the ordinance.=20
When SDMI refused to make spousal benefits available to the
registered domestic partners of employees who would be working on
the city contract, the city rejected SDMI's bid.  SDMI commenced
this action seeking declaratory and injunctive relief.

SDMI argued that the Equal Benefits Ordinance violates California's
constitution because it conflicts with state marriage and community
property laws, and because it regulates personal relationships,
something which SDMI alleged is within the sole province of the
state.  The court rejected this position, ruling that the ordinance
nether duplicates nor contradicts state law on these issues.=20
According to the court, the ordinance does not address in any way
rights which state laws confer on married couples, such as
community property, spousal support, and inheritance rights.=20
Rather, the ordinance only concerns itself with private employment
benefits.  Additionally, while California may have a legitimate
interest in promoting marriage, Judge Wilken explained that
"California statutory and decisional law also recognizes domestic
partnership and prohibits discrimination based on marital status,
which indicates that laws supporting nonmarital relationships are
neither inimical to state marriage laws nor contrary to state
policy favoring marriage."

The court reaffirmed its conclusion that the dormant commerce
clause invalidates that portion of the Equal Benefits Ordinance
which would require contractors to extend spousal benefits to the
registered domestic partners of employees who work outside of San
Francisco and whose work does not directly relate to a contract
with the city.  However, as it did in the airline case, the court
concluded that SDMI could legitimately be required to provide
spousal benefits to those unmarried employees with registered
domestic partners who would be working directly on the city
contract at issue.

SDMI's argument concerning ERISA preemption had the greatest
potential to invalidate crucial provisions of the Equal Benefits
Ordinance, but ultimately was not addressed by the court on the
merits.  SDMI posited that ERISA preempted the ordinance's
requirement that SDMI provide the registered domestic partners of
unmarried employees with ERISA-qualified health, vision, dental,
disability and life insurance.  This was an issue of first
impression, since the court's April 1998 ruling concerning ERISA
preemption was limited to the airline industry --- an industry
which concerns the city's regulatory (as opposed to proprietary)
functions, and which is also preempted by the ADA and other federal
law.

The court agreed with the city's argument that SDMI lacked standing
to argue ERISA preemption.  In order to have standing, Judge Wilken
ruled that "SDMI must establish that it has suffered an actual or
threatened injury that is fairly traceable to the challenged action
or conduct of Defendants, and that is likely to be redressed by a
favorable decision."  Since SDMI declared that it would not make
even its non-ERISA benefits available to domestic partners of its
employees working on the city contract at issue, a favorable ruling
on its ERISA claim still would not make SDMI eligible for the city
contract.  The court therefore granted summary judgment to the city
on all claims.=20

These two decisions are undeniably favorable for the city and its
citizens who have registered domestic partners.  Nonetheless, they
still leave the Equal Benefits Ordinance vulnerable to an ERISA
preemption challenge from non-airline industry companies.  This is
no small matter, since ERISA benefits are often the most beneficial
and costly to be offered by employers.  Since it also appears
likely that both the airline industry and SDMI intend to appeal
Judge Wilkens' rulings, the most challenging battles have yet to be
fought.  _Ian Chesir-Teran_

_Editor's Note_: The _San Francisco Examiner_ reported on June 30,
subsequent to the submission of this article for publication, that
the air carriers have filed an appeal with the 9th Circuit Court of
Appeals. A.S.L.

Local Cable Operator's Indecency Policy Survives First Amendment
Challenge

The U.S. Court of Appeals for the 2nd Circuit affirmed a district
court's ruling finding that Time Warner's standard for sexually-
oriented programming on its leased access cable network is
constitutionally sound, but that its suspension provision for
programmer-violators violates the Cable Act. _Loce vs. Time Warner
Entertainment_, 1999 WL 387150 (June 14). =20

Plaintiffs Thomas Loce and Ed Richter are producers of late night
cable programs that principally feature scenes of female nude
dancers in various adult clubs along with commentary and interviews
by Loce and Richter as the show's hosts.  The commentaries
typically focus on a stripper's physique and the hosts' sexual
fantasies about them.  The program became a source of controversy
as Syracuse and Rochester, N.Y., cable subscribers and community
members petitioned Time Warner (TW), the local cable franchisee, to
cease carrying the show (the programs are unscrambled and come to
subscribers as part of the basic cable service plan). =20

In 1997, Loce and Richter submitted to TW-Syracuse a program
entitled "Lookers" that featured nude female dancing, simulated sex
and masturbation and featured ads for escort services offering
"house and hotel calls" and appeals to men to "bring your hard
dicks down here."  TW-Syracuse informed the producers that the
program violated its decency policy and would not be aired and,
pursuant to its suspension policy, the producers were prohibited
from submitting new material to TW-Syracuse for six months.=20
Plaintiffs then submitted similar programming to TW-Rochester
entitled "A Tribute To Violence," featuring real life violence such
as a man being devoured by lions with his family looking on in
horror, an actual suicide by gunshot, and excerpts from graphically
violent motion pictures that included violence to amputees and the
violent deaths and beatings of women.  This program also included
sexually explicit advertisements and lewd, "humorous" commentaries
by the hosts.   TW-Rochester likewise denied broadcast of the show
citing violation of its indecency policy, but did not suspend the
producers from submitting other programming.  However, when the
producers submitted soon thereafter a third program to TW-Rochester
entitled "The All Black Special," that featured similar content but
with African American participants only, TW-Rochester acted upon
its suspension policy and forbad them to submit programming for six
months.  Thereafter, the producers' programming was telecast on
TW-Rochester's public access channels and not on its leased
commercial channels.  Now banned from submitting programming to
either cable franchise, Loce and Richter sued Time Warner
Entertainment.

Plaintiffs sought a declaration that the application of TW's
indecency policy to the three rejected episodes violated the Cable
Act and their 1st Amendment rights, and preliminary and permanent
injunctions prohibiting TW from engaging in pre-screening and
censorship pursuant to its indecency policy.  Plaintiffs argued
that TW had violated the Cable Act by failing to respond to
requests for clarification of whether the policy forbade depiction
of topless women and by refusing to specify the parts of the
rejected tapes it considered indecent in order to give programmers
an opportunity to edit and resubmit modified versions of the tapes.=20
Plaintiffs further argued that if cable operators deem programming
indecent, the Cable Act authorizes them to bar only the program,
not the persons who provide the programs.  Likewise, Plaintiffs
sought injunctions that the subject programs be broadcast in their
entirety and a judgment that the suspension provision of the TW
indecency policy violated the Cable Act.

TW responded by requesting a declaratory judgment and injunctive
relief and moved for summary judgment dismissing the complaint,
arguing that the 1st Amendment was not applicable because TW is not
a state actor, and that the Cable Act permitted it to refuse to
broadcast the subject programs because they were "patently
offensive" as judged by contemporary community standards in the
Rochester/Syracuse areas.

The district court granted summary judgment dismissing most of
plaintiffs' claims, but upheld their challenge to the suspension
provisions.  Both parties appealed.  The 2nd Circuit rejected both
sides' challenges to the district court's ruling.

Writing for the court, Circuit Judge Amalya Kearse concurred with
the lower court's dismissal of the 1st Amendment claims, reasoning
that there was no basis on which to infer that TW's indecency
policy or its treatment of the plaintiff constituted state action.=20
The mere existence of federal law requiring the availability of
leased programming and that local government grants cable
franchises does not characterize the cable operators as state
actors or as joint venturers in the administration thereof.=20
Addressing the issue of statutory provisions governing leased
access channels, the court stated that given the framework of the
legislative history of the Cable Act, there was no genuine issue of
fact to be tried as to the reasonableness of TW's rejection of the
three programs.  Plaintiffs did not adduce any evidence that TW's
rejection on the basis of indecency was not reasonable nor did they
contest the assertion that the programs featured the profane
language and the graphic sexual and violent nature as described by
TW.  As Kearse concluded, "[n]o rational fact finder could find
that TW's belief that [the subject programs] depicted sexual
activities or organs in a patently offensive manner as measured by
contemporary community standards was not reasonable.<!70>

Turning to the reasonableness of TW's procedure to not identify for
programmers what parts of the submission it deems obscene or
indecent in order to allow the programmer to edit and resubmit the
program, the court affirmed the district court's ruling that the
Cable Act imposes no obligation on a cable operator to work with a
programmer in the program-editing process.  However, the court did
add that it does not regard the district court as having given TW
carte blanche to refuse consideration of programming that has been
rejected and then resubmitted after editing.

Lastly, turning to TW's suspension provision, the court affirmed
the lower court ruling reiterating that the purpose of the Cable
Act was to ban programs, not programmers and that there is no
indication that Congress meant otherwise.  _K. Jacob Ruppert_

N.Y. Judge Considers Sanctioning Defense Attorney for "Outing"
Plaintiff in Court Papers

An otherwise routine summary judgment motion has turned ugly for
New York attorney Alan Golomb.  Next month, Suffolk County, N.Y.,
Supreme Court Justice William L. Underwood Jr. is expected to
decide whether to sanction Golomb for exposing aspects of the
plaintiff's personal life, including her sexual orientation, in his
affirmation seeking to dismiss the plaintiff's complaint.  _T.W. v.
The "X" Company_, NYLJ, July 12, 1999. =20

Plaintiff T.W. sued a termite inspection company for breach of
contract and negligent infliction of emotional distress after
discovering that the house she purchased was infested with
termites, despite contrary findings in "X" Company's termite
inspection report. The defendant moved for summary judgment on the
emotional distress claim.  Golomb argued among other things that
T.W.'s mental distress, if any, was pre-existing, since "she [T.W.]
is single; she is gay. . . she was adopted. . . her brother had a
drug problem."

The court ultimately dismissed plaintiff's emotional distress cause
of action on the law, but accused Golomb of tarnishing the image of
the legal profession for divulging T.W.'s personal background
unnecessarily.  Justice Underwood, who concluded that the Golomb's
affirmation "shocked the conscience of the court,"  explained in
his written decision that "the Court cannot remain silent in the
face of this attempt to stigmatize the plaintiff, lest by our
silence we appear to condone the plaintiff's language."=20

Justice Underwood directed counsel for both parties to submit
affirmations on whether Golomb should be sanctioned for his
conduct.  The court's decision, which tests the limit of an
attorney's duty to zealously represent the interests of her or his
client, is the first known case in which a New York judge has
expressed a willingness to consider sanctioning an attorney for
inappropriately divulging an adversary's sexual orientation.  _Ian
Chesir-Teran_

Supreme Court Creates Safe Harbor From Punitive Damages for
Employers in Civil Rights Cases

In _Kolstad v. American Dental Association_, 1999 WL 407481 (June
22), the Supreme Court began to sketch the circumstances under
which an employee can recover punitive damages in employment
discrimination suits brought under Title VII of the 1964 Civil
Rights Act.  Prior to 1991, successful Title VII plaintiffs were
only entitled to equitable relief, primarily backpay and
reinstatement.  Congress amended Title VII in 1991,  however, to
provide additional remedies including punitive damages for certain
Title VII and ADA violations.  The 1991 Act limits compensatory and
punitive damages awards to cases of "intentional discrimination"
and sec. 1981a(b)(1) further provides that in order to recover
punitive damages the=20
plaintiff must demonstrate that the respondent engaged in=20
discriminatory practices "with malice or with reckless indifference
to the federally protected rights of an aggrieved individual."

The Supreme Court granted certiorari in _Kolstad_ to resolve a
conflict among the circuits concerning the circumstances under
which a jury may consider a request for punitive damages under sec.
1981a(b)(1). The decision has wide civil rights implications
because this punitive damages standard also applies to suits
brought under the Americans with Disabilities Act (ADA) and the
Federal Fair Housing Act (FHA), and would likely apply to the
Employment Non-Discrimination Act (ENDA) which would ban sexual
orientation discrimination if it is passed.

Carole Kolstad brought suit in federal district court in the
District of Columbia, alleging that the respondent's decision to
promote a male co-worker over herself was an act of sex
discrimination in violation of Title VII. The jury found that
Kolstad had been the victim of intentional sex discrimination and
awarded her $52,718 in backpay. The district judge, however, denied
Kolstad's request for a jury instruction on punitive damages.  In
a split decision on appeal, the Court of Appeals for the District
of Columbia Circuit reversed the district court's denial of the
petitioner's request for a jury instruction on punitive damages.=20
In so holding, the panel rejected the respondent's claim that
punitive damages were only available under Title VII in
"extraordinarily egregious cases."
=20
The panel held that a finding of intentional discrimination was
sufficient to put the question of punitive damages before the jury.
This panel opinion was reversed, however, by an en banc majority of
the D.C. Circuit Court of Appeals which, in a divided opinion,
affirmed the holding of the district court. The en banc majority
concluded that, a defendant must be shown to have engaged in some
"egregious" misconduct before the jury is permitted to consider a
request for punitive damages.

The U.S. Supreme Court then reversed the en banc majority and held
that a Title VII plaintiff need not prove egregious conduct in
order to satisfy sec. 1981a's requirements for a punitive damages=20
award. After examining the history and structure of the 1991 Act,
the Court concluded that the language of sec. 1981a does not
require a "showing of egregious or outrageous discrimination
independent of the employer's state of mind." Rather, "[t]he terms
`malice' or `reckless indifference' [in sec. 1981a] pertain to the
employer's knowledge that it may be acting in violation of federal
law, not its awareness that it is engaging in discrimination."

But, while this holding that a Title VII plaintiff need not prove
egregious conduct appeared to make it easier for a Title VII
plaintiff to be awarded punitive damages, the Court, by a separate
5-4 vote, provided employers with a broad safe harbor against such
awards.  This part of the opinion provided that a plaintiff could
not impute punitive damages liability to an employer for the
discriminatory actions of its supervisory employees when the
employer has made "good faith efforts" to comply with the civil
rights law.  By implication, this safe harbor also applies to suits
brought under the ADA and the FHA.

In adopting this standard, the Court rejected the standard of
agency liability set forth in the Restatement of Agency, which
provides that a principal may be liable for the misconduct of its
agents "where an employee serving in a `managerial capacity'
committed the wrong while `acting in the scope of employment.'" The
Court rejected this unconditional scope of employment standard,
stating that, in the punitive damages context, application of this
standard "would reduce the incentive for employers to implement
antidiscrimination programs," which would be "directly contrary to
the purposes underlying Title VII."  In sum, the Court continued:
"Recognizing Title VII as an effort to promote prevention as well
as remediation, . . . we agree that, in the punitive damages
context, an employer may not be vicariously liable for the
discriminatory employment decisions of managerial agents where
these decisions are contrary to the employer's 'good-faith efforts
to comply with Title VII.'"

Chief Justice Rehnquist, joined by Justice Thomas, dissented from
parts I and II-A of the majority's decision, stating that he would
"hold that Congress' two-tiered scheme of Title VII monetary
liability implies that there is an egregiousness requirement that
reserves punitive damages only for the worst cases of intentional
discrimination."  However, Rehnquist joined the second part of the
decision, expressing relief that the safe harbor it created would
make punitive damage awards difficult if not always impossible.

Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer,
dissented from part II-B (the one part with which Chief Justice
Rehnquist agreed). After examining the structure and the purposes
of the 1991 Act, Stevens agreed with the Court's holding that a
Title VII plaintiff need not prove egregiousness in order to be
awarded punitive damages.  Stevens then parted company with the
majority. Stevens argued that the majority's holding with respect
to imputed liability was "gratuitous" and "ill advised" because
this question was not addressed by either of the parties. In fact,
when asked at oral argument about this issue, counsel for
respondent stated twice that both parties agreed "that that precise
issue is not before the Court. . . The absence of briefing or
meaningful argument by the parties," Justice Stevens argued, "makes
this Court's gratuitous  decision to volunteer an opinion on this
nonissue particularly ill advised."

In sum, the decision is a mixed result; while the Court's rejection
of an egregiousness requirement appears to be pro-plaintiff, the
Court's creation of a safe harbor makes it extremely unlikely that
plaintiffs will be able to collect punitive damages for the
discriminatory actions of managerial employees.  It is also
interesting to note that the Court's holding appears to be in=20
some tension with several of its recent sexual harassment rulings.
Last year, the Court ruled that employers generally have to take
"reasonable care" to prevent discriminatory behavior by supervisory
employees and that, if the supervisor had taken "tangible
employment action" against an employee, the company had no defense
and was liable. The Court in _Kolstad_. however, made no similar
distinction among the range of discriminatory actions. Rather, it
appears that so long as an employer has made "good faith efforts"
to comply with the civil rights law, it is completely immune from
imputed liability for punitive damages.  _Courtney Joslin_

Supreme Court Ruling on Sovereign Immunity May Undermine Civil
Rights Enforcement Efforts.

In _Alden v. Maine_, 1999 WL 412617 (June 23), the U.S. Supreme
Court used historical concepts of state sovereign immunity to rule,
5-4, in an opinion by Justice Anthony Kennedy, that probation
officers in the state of Maine could not maintain a lawsuit in
state court alleging a violation of the federal Fair Labor
Standards Act in pursuit of overtime pay claims.  Kennedy's opinion
was one of three issued on that date that significantly expanded
the concept of state sovereign immunity from suit on federal
claims.  (The other two cases involved patent and trademark
infringement claims.)  As the 11th Amendment already expressly
immunizes the states from suit by citizens of other states in
_federal court_, and has been expansively construed in the past by
the Court to immunize states from suit by their _own_ residents in
_federal court_, the _Alden_ ruling has the effect of holding that
only the federal government itself can institute a lawsuit in
federal or state court to force a state to comply with federal law.=20
For many statutory schemes in which Congress has relied on
individuals to enforce their own civil rights claims, this could
seriously diminish the ability of state employees to enjoy the
rights conferred on them by federal employment laws.

Kennedy's opinion does recognize that the Court has found a variety
of situations where waivers of sovereign immunity can be implied,
apart from situations where the state has actually waived its own
immunity either constitutionally or by statute.  Perhaps the most
significant, for purposes of civil rights enforcement, is Section
5 of the 14th Amendment, which gives Congress authority to
legislate to enforce the rights guaranteed in that Amendment,
including due process and equal protection rights of individuals as
against the states.  Thus, a civil rights law that was premised by
Congress as an enforcement mechanism for 14th Amendment rights
might not be subject to this sovereign immunity ruling.  Next term,
the Court will likely confront some civil rights cases involving
state employees that will provide a vehicle for pinning down this
exception to the _Alden_ ruling, which would be crucial for HIV+
state employees, for example, alleging violations of the ADA, or,
in future, state employees suing for violations of ENDA, if it were
to be passed.  Of course, states are not immune from suit for
violation of federal constitutional rights, so lesbian or gay state
employees advancing 5th Amendment due process or equal protection
claims, or 1st Amendment free speech or assembly claims, should
still be able to assert those claims in state as well as federal
courts.

The Court's decision drew a dissenting opinion from Justice Souter,
joined by Justices Stevens, Ginsburg, and Breyer, sharply
contesting Justice Kennedy's version of the historical evidence
about the understanding of the scope and nature of state sovereign
immunity at the time the Constitution was written and adopted, and
criticizing the majority opinion as sharply undercutting the
ability of Congress to enforce laws that it is fully authorized to
have passed.  (Nobody in the case disputed that Congress now has
authority to establish minimum wage and overtime requirements for
state employees).  A.S.L.

Divided Michigan Appeals Court Upholds $10 Million Jury Verdict for
Gay Shooting Victim

A divided panel of the Michigan Court of Appeals has upheld a $10
million plus interest jury verdict for Sean McBride, who was
rendered a paraplegic by a gunshot fired by a homophobic harasser
at the entrance of the apartment complex where McBride lived.=20
_McBride v. Pinkerton's, Inc._, No. 202147 (July 2, 1999)
(unpublished disposition).  The court affirmed the trial judge's
refusal to grant judgment notwithstanding the verdict in McBride's
negligence claim against Pinkerton's, Inc., the contractor that
supplied the security guard for the apartment complex, and reversed
the trial court's dismissal of negligence claims against the
management company and owner of the complex.

McBride, a gay man, had recently moved into the Wellington Arms
complex in downtown Detroit, after being told by the management
company's sales representative that despite the complex's location
in a dangerous neighborhood, there was excellent security,
including the presence of a Pinkerton security guard as well as an
electronic security system under which all visitors had to identify
themselves via intercom and be buzzed in by tenants.  On January
27, 1994, McBride returned home from work to find an unusually
large number of people loitering in the lobby, and as he walked
through the lobby, someone in the lobby verbally harassed him,
calling him "faggot" and "gaybob," and asking whether he was a boy
or a girl.  McBride claims the Pinkerton guard who was on duty took
no action in response to this harassment.  Shortly thereafter,
McBride went out to shop and was again harassed in the lobby, with,
he testified, the guard laughing along with the others at the name-
calling, which this time included the words "fag," "bitch,"
"whore," and "sissy."  McBride went out a third time without
incident, but as he returned home, several of the harassers were
standing in the doorway blocking his entrance, and amidst their
verbal encounter, one harasser drew a gun and shot McBride,
rendering him paraplegic.

McBride sued Pinkerton's, the management company and the owner for
negligence.  At trial, the court dismissed the claims against the
latter two parties, but allowed the negligence claim against
Pinkerton's to go to the jury, which rendered a verdict in favor of
McBride for $10 million.  Pinkerton's appealed the trial court's
refusal to set aside the verdict, and McBride appealed the
dismissal of the other two defendants from the case.

Each member of the panel wrote an opinion.  In his lead opinion for
the court, Judge William B. Murphy found that by contracting to
provide guard services at the complex, Pinkerton's did assume a
duty of care towards McBride, and that the jury could have found
that the repeated verbal harassment in the lobby, observed by the
guard, made the subsequent violence foreseeable, thus providing a
basis for finding the guard's negligent conduct a proximate cause
of McBride's injury.  On another disputed point, Murphy found that
McBride's HIV+ status would not justify a special instruction to
the jury to disregard standard mortality tables in making its
damage calculations, agreeing with the trial judge that it was
possible that an HIV+ person could be sustained in good health
through medication until such time that a cure is found, and thus
would not necessarily have a shorter lifespan than predicted by
standard tables.  Disagreeing with the trial court, Murphy found
that the management company and the owner also had duties to
McBride that may have been violated in this case, so the matter
would have to be remanded to try McBride's claims against these
other two parties.  Judge Robert P. Young wrote a concurring
opinion.

Dissenting, Judge Joel P. Hoekstra argued that McBride failed to
show that Pinkerton's owed him a duty of care, and completely
disagreed with the foreseeability analysis the majority had
advanced.  "In my opinion, neither the assailants, Pinkerton's
employee, nor Pinkerton could have known that these parties would
come together in this place and time.  Rather, this was a chance
encounter that was unconnected to the events that preceded it in
the lobby.  Where the shooting occurred as one party was coming and
others were leaving, the shooting constituted no more than an
unfortunate, random act of violence for which Pinkerton should not
be held legally responsible for failing to anticipate or prevent.
. . .  To prevent the assault in this case would have required
Pinkerton to provide a level of protection well beyond the scope of
protection that Pinkerton contractually agreed to render for
plaintiff's landlord."  A.S.L.

N.Y. County Surrogate Approves Joint Adoption for Gay Couple

In a significant ruling on the right of gay people to adopt
children, in _Matter of Baby Boy T_, No. QDS 24228620, NYLJ 5/7/99
(N.Y.Surr.Ct, N.Y.Co., Apr. 7), Surrogate Eve Preminger issued an
order granting joint adoption of a child to an unmarried male
couple.  Neither of them was previously the biological or adoptive
parent of the child.  This is the first reported opinion of this
nature in New York State.

Surrogate Preminger acknowledged that families today no longer
solely consist of the stereotypical scenario of male husband and
female wife and two or three biological children. While some courts
have denied adoptions to petitioners in non-traditional
relationships within the fairly recent past, Justice Preminger
found that the thinking on the bench has changed, citing cases
involving adoptions by unmarried heterosexual and homosexual
couples in New York, California and Alaska.  Surrogate Preminger
cited her own prior decision in _Matter of Evan_, 153 Misc.2d 844
(N.Y. Surr. Ct, N.Y. Co. 1992), in which she approved an adoption
by the same-sex partner of the biological parent. In _Matter of
Evan_, Preminger focused on a standard involving the best interests
of the child: "Today a child who receives proper nutrition,
adequate schooling and supportive sustaining shelter is among the
fortunate, whatever the source."

The court also placed great reliance on _Matter of Dana_, 86 N.Y.2d
651 (N.Y. 1995) (adoption by lesbian partner of biological mother)
and _Matter of Jacob_, ibid. (companion case; adoption by male
partner of unmarried biological mother), which approved co-parent
adoption by the unmarried same-sex companion of a biological
parent, as serving the underlying purpose of N.Y. Domestic
Relations Law sec. 110, which provides for adoption by
"[a]n adult unmarried person or an adult husband and his adult wife
together." These concerns are to promote the best interests of the
child and to facilitate as many children as possible, irrespective
of the parents' sexual orientation and marital status. =20

The court further stated: "_Dana_ has established as New York law
that the lesbian or homosexual orientation of adoptive parents is
not a bar to adoption, where all other appropriate social concerns
are met and the adoption is in the best interests of the child.
_Jacob_ has established that the unmarried status of adoptive
parents is not a bar to adoption, provided that the proposed
parents' relationship is longstanding and stable and the adoption
is in the best interests of the child. The necessary result of this
decisional law - specifically intertwining the results of _Dana_
and _Jacob_ - is that no legal bar exists to the petition of
proposed adopting parents who are of the same sex and unmarried."

The court made specific findings of fact concerning the fitness of
the co-petitioners to adopt, noting the required home study, the
longstanding and committed relationship of the co-petitioners, and=20
the agreement of the biological mother to the adoption.  _Steven
Kolodny_

_Editor's Note_: After the editor published an account of this case
in _LGNY_, a gay community newspaper in New York City, he received
an e-mail message from another male couple, Jerry and Myron Pavlon-
Blum, who asserted that Surrogate Preminger had approved the joint
adoption of their son on March 14, 1997, so _Matter of Baby T_ was
not the first case in which such an adoption was approved in New
York.  However, it appears to be the first case in which an opinion
has been released and published to create a citable precedent.=20
A.S.L.

Pennsylvania Appeals Court Voids Protection From Abuse Order

A 3-judge panel of the Pennsylvania Superior Court has reversed a
decision of the Northampton County Court of Common Pleas, which had
granted a "protection from abuse" order (PFA) to a gay man based on
threats from his former male lover.  _D.H. v. B.O._, 1999 WL
410372, 1999 PA Super 149 (June 15).

D.H. filed a petition in the Common Pleas Court on May 26, 1998,
alleging that his former lover was threatening him and seeking an
order to prevent the former lover from contacting him in any
manner.  A temporary order was issued, and after a hearing on May
29, the court entered a permanent order, barring B.O. from any
attempt to contact D.H. for a period of one year.  B.O. appealed,
and the order was unanimously reversed, in a decision by Judge
Popovich.

B.O. argued on appeal that D.H. had failed to allege the requisite
relationship to come within the coverage of 23 Pa.C.S. sec. 6108,
the statute that authorizes the issuance of protection from abuse
orders, and that D.H. had failed to allege an act of abuse that
would warrant the relief granted.  He also alleged a denial of due
process, in that he was not represented by counsel at the May 29,
1998, hearing on the application.

Popovich rejected the due process claim, pointing out that B.O. had
been free to hire a lawyer, and his failure to do so "does not
amount to a denial of due process."  Popovich also rejected the
argument that D.H. failed to allege the requisite relationship.=20
The statute applies to conduct involving "sexual or intimate
partners."  Wrote Popovich, "In the present case, the PFA petition
the complainant filed referred to appellant as his former roommate
and homosexual lover, and the complainant testified that he and
appellant formerly had a sexual relationship, which lasted for
approximately one and one-half months.  This evidence was
sufficient to demonstrate an intimate relationship."

However, the court concluded the evidence of B.O.'s conduct and
threats was "insufficient to justify the entry of a PFA order," as
the statute requires a showing that the respondent engaged in a
course of action "under circumstances which place the person in
reasonable fear of bodily injury. . ." =20

The hearing record showed that D.H. had gone to Florida on vacation
and, upon return, learned that B.O. had left several "disturbing"
messages at his place of employment.  D.H. then phoned B.O. and
terminated their relationship.  B.O. did not go quietly, but
instead repeatedly contacted D.H. by pager and telephone seeking to
revive their relationship.  During the course of these
communications, B.O. accused D.H. of having a relationship with a
co-worker, and said, "I'm going to get him any way I can."  D.H.
also testified that B.O. made threats against D.H.'s boss at work,
and had made threats to reveal financial irregularities about
D.H.'s business.  The hearing record consisted entirely of D.H.'s
testimony and his telephone logs.

"Unfortunately," wrote Popovich, "the complained of conduct does
not amount to an `act of abuse' under the Protection from Abuse
Act.  The only physical threats appellant made were directed
towards appellee's co-worker.  Appellant never threatened to cause
physical injury to appellee.  The one threat directed toward
appellee was not a threat to cause physical harm but to expose
potentially damaging financial information about appellee's
employer.  Furthermore, the other messages complained of relay no
more than appellant's chagrin over unrequited love."  A.S.L.

California Superior Court Grants Legal Parent Status to Lesbian
Couple Prior to Child's Birth

San Francisco Superior Court Judge Donna Hitchens granted the
petition of the partners in a lesbian couple who sought to be
declared the legal parents of their child, in a case involving a
woman who conceived a child through in vitro fertilization using
her lover's fertilized eggs.  _In the Matter of McAllister &
Subak_, No. FL032006 (Cal. Super., San Fran. Co., May 24, 1999).=20
The women filed their petition for declaration of parental rights
prior to the birth of the child.

The main issue before the court was whether the birth mother (Dr.
Subak) and the genetic mother (Dr. McAllister) could both be
declared to be legal parents under the Uniform Parentage Act (UPA)
as embodied in the California Family Code.  According to Hitchens,
under the UPA (which has been adopted in several states), a legal
relationship may be established regardless of the marital status of
the parents. Family Code Secs. 7601, 7602.  Furthermore, under the
UPA, giving birth is not sufficient to establish legal parentage.
Legal parentage _may_ be established by proof that the birth mother
has given birth to the child (FC Sec. 7610), but the fact of
gestation alone may not be enough to establish legal parentage, nor
is it the only way to establish legal parentage.  The guiding
principle is the intent of the parties.  A person who causes the
procreation of a child and intends to raise the child as his or her
own will be considered the child's legal parent under the UPA,
notwithstanding that she or he is neither the birth mother nor the
genetic parent.

This principle was established by _Johnson v. Calvert_, 5 Cal.
4th 84, cert. denied, 510 U.S. 874 (1993), and cert. dismissed, 510
U.S. 938 (1993) and _In re the Marriage of Buzzanca_, 61 Cal. App.
4th 1410 (4th Dist. Ct. App., March 1998, rev. denied, June 10,
1998).  These cases involved the legal rights of surrogate mothers
vis-a-vis their birth children, where the surrogate mother became
pregnant through implantation of fertilized eggs other than her
own. =20

The _Johnson_ case concerned a husband and wife who entered into a
surrogacy contract with a woman, under which she agreed to be
implanted with the wife's eggs which were fertilized by the
husband's sperm.  Although the surrogate mother agreed to
relinquish all parental rights, after giving birth, the surrogate
mother sued for parental rights. The court in _Johnson_ found that
both the genetic mother and the gestational mother had shown
evidence of a mother and child relationship as contemplated by the
UPA.  However, the _Johnson_ court did not think it would be in the
best interests of the child to recognize both mothers as legal
parents.  The court looked at the intent of the parties in order to
designate one woman as the legal mother. Determining that the wife
should be the legal parent, the court held, "she who intended to
procreate the child - that is, she who intended to bring about the
birth of a child that she intended to raise as her own - is the
natural mother under California law." =20

The court in _Buzzanca_ went even further in applying an intent-
based test, conferring legal parentage on a couple with no genetic
or gestational link to the child.  That case involved the same
facts as _Johnson_, except that the surrogate mother was
impregnated via anonymous sperm and egg donors.  Although neither
the husband nor the wife was genetically related to the child, the
court found that the legal rights of the couple were superior to
that of the surrogate mother.  Interestingly enough, although the
husband sought a declaration that he was not the legal father
because the couple had separated and he no longer wanted
responsibility for the child, the court declared him to be the
legal parent because of his original intent in causing the
procreation of the child.  The _Buzzanca_ court found that applying
an intent-based test is proper in "any situation where a child
would not have been born `but for the efforts of the intended
parents'."

Given the more problematic facts in _Johnson_ and _Buzzanca_,
Judge Hitchens had no trouble finding that Drs. McAllister and
Subak were the legal parents for the child.  Both parties intended
to create a child, one was the birth mother, the other the genetic
mother, each party intended that the other have equal parental
rights, and each party signed a declaration stating that she
desired to be the legal parent and to assume all of the
responsibilities of raising the child. =20

Furthermore, the court found that the best interest of the child is
served by declaring two people to be the legal parents.  Hitchens
said that because the child will benefit from the love and care of
two people and be entitled to financial support from both of them,
as well as the right to inherit, receive Social Security and health
insurance, even "in the _unfortunate_ event that the parties
separate" (emphasis added), the child's interest is served by the
parental declaration.  _Elaine Chapnik_

Anti-Gay Robber Loses Appeal

The Texas Court of Appeals rejected a criminal defendant's attempt
to use a hate crime statute to challenge his aggravated robbery
conviction.  _Majano v. State_, 1999 WL 387844 (Tex. App. Jun. 15).


Angel Majano and another person robbed a man at gunpoint, during
which they beat the him and called him "faggot." Majano,
challenging his conviction for aggravated robbery, argued that the
evidence was insufficient to show that he had intentionally
selected the victim because of a bias against homosexuals.=20

The Texas hate crime statute, the Court of Appeals noted, provides
for the sentencing enhancement.  Proving Majano's intent under that
statute was not crucial to the state's case in prosecuting him for
aggravated robbery.  In addition, the trial court had not make any
specific findings of bias pursuant to the hate crime law, and
Majano did not challenge the jury's findings on the other elements
of the crime.  The court also rejected Majano's argument that the
victim's in court identification of him was tainted.  _Dirk
Williams_

Federal Court Rejects Challenge to Same-Sex Only Domestic Partner
Benefits

In _Foray v. Bell Atlantic a/k/a NYNEX Corporation_, 1999 WL 370631
(U.S.Dist.Ct., S.D.N.Y., June 8), Judge Robert Patterson ruled that
employers can offer benefits to same sex domestic partners of their
employees and not to opposite sex domestic partners without running
afoul of federal civil rights laws.

In January 1996, NYNEX (now BellAtlantic) instituted a new employee
benefit plan which extended benefits to "same-sex domestic
partners" of employees. These benefits included medical, dental and
vision care coverage, beneficiary designations, leaves, relocation,=20
life insurance and adoption reimbursements.

Plaintiff Paul Foray was an unmarried man employed by NYNEX who was
living with his female domestic partner, Jeanine Muntzner. After
the plan was implemented, he submitted a formal request that NYNEX
add Ms. Muntzner to his benefits plan.  NYNEX declined by letter,
stating, "Under U.S. law, same-sex domestic partners cannot marry,
while opposite sex domestic partners can. In view of this, coverage
for Domestic Partners is offered to same-sex domestic partners, not
to heterosexual partnerships."

Foray filed suit in New York State Supreme Court, alleging
discrimination on the basis of sexual orientation and marital
status.  The matter was removed to federal court because the claims=20
related to employee benefits and were thus preempted by ERISA, 29
USC sec. 1001 et seq.  Foray voluntarily dismissed his suit, and
filed a claim of sex discrimination with the EEOC. The EEOC denied
his claim and issued a right-to-sue letter in February 1998.  Foray
then refiled  his suit in federal court, alleging violations of
Title VII of the Civil Rights Act of 1964 (sex discrimination) and
the Equal Pay Act, 29 USC secs. 206 (d) and 215 (1)-(2).  Foray
argued that he meets all criteria for receiving benefits under the
domestic partnership plan but for the fact that he is male and his
domestic partner is female.

Judge Patterson rejected this argument decisively.  Precisely
because Foray and Muntzner are of opposite sex, Patterson ruled,
they are able to marry and thus qualify Muntzner for benefits, an
option which would not be available to Foray and Muntzner if they
had been of the same sex.  "This difference in ability to marry,
which does not bear on the quality or stability of the
relationship, is material in the context of a compensation plan
which grants benefits to employees' chosen partners. NYNEX's policy
of distinguishing between unmarried opposite-sex domestic partners
and unmarried same-sex domestic partners reflects and remedies
differences between these persons in this particular context, and
does not discriminate between similarly situated men and women."

Coverage in the June 9 edition of the _New York Law Journal_ stated
that Thomas Coleman, one of Mr. Foray's lawyers, who is executive
director of a group called the American Association for Single
People, vowed to appeal, calling the ruling a "slap in the face of
unmarried workers throughout America."  _Steven Kolodny_

Gay Securities Analyst Loses ADA Discrimination Suit Against
Standard & Poor's

U.S. Circuit Judge Sotomayor sitting by designation in the Southern
District of New York granted summary judgment to the defendant
employer Standard & Poor's in an Americans with Disabilities Act
(ADA) discrimination suit brought by Paul Valentine, a gay man who
alleged discrimination based on his disability of bipolar disorder
and his sexual orientation.  _Valentine v. Standard & Poor's_, 1999
WL 436772 (S.D.N.Y., June 24).

Valentine began working at S&P in 1982, and during the early years
of his employment was among the top-rated securities analysts in
the company.  When hired, he had recently been discharged from a
mental hospital where he had been treated for a "nervous
breakdown," and he continued to suffer mood swings that required
medication and frequent consultation with a psychiatrist.  Despite
these disabilities, his work was highly related until the late
1980s, when his ratings began to slip.  Valentine felt that the
slippage in ratings was caused partly by homophobia, as word began
to spread within S&P that he was leading a gay lifestyle outside
the office.  As his rankings continued to plummet, he came to
believe that S&P officials who disapproved of his sexuality were
trying to get him fired; at some point, he also came to believe
that he was suffering discrimination because of his mental
difficulties.  (For example, in one incident, he was stopped from
appearing as a guest on the popular "Wall Street Week" television
program on PBS because, so he believe, S&P did not want to be
represented on the air by somebody with mental problems.)  Things
came to a head when he left a voicemail message on the line of a
colleague who was leaving to join another company, in which he made
accusations about the colleague's sexuality and implied, perhaps in
an ironic tone, that the colleague's career was in jeopardy.  The
colleague forwarded the voice mail message to a supervisor and
Valentine was discharged.

Valentine sued under the ADA, claiming discrimination on the basis
of his disability.  The factual record also indicates substantial
allegations of sexual orientation discrimination, but there is no
indication that Valentine, who represented himself in the case,
thought to append a claim under the New York Human Rights Law on
the ground.

Judge Sotomayor found the record devoid of evidence that Valentine
was discharged for any reason other than the misconduct that
precipitated the discharge, and also concluded that the series of
negative evaluations Valentine had received over the five year
period prior to his discharge were not an appropriate basis for a
discrimination claim, since there was no indication that his terms
and conditions of employment were affected by the evaluations.=20
Neither did she find any evidence that the discharge was in
retaliation for Valentine having filed internal discrimination
grievances with his union. =20

Valentine had argued that the misconduct was actually a
manifestation of his mental problems and thus should not be held to
justify his discharge.  But, concluded Sotomayor, "I further note
that whether Valentine's misconduct was a manifestation of his
disability is immaterial because the ADA does not immunize disabled
employees from discipline or discharge for incidents of misconduct
in the workplace. . .  Viewing the instant record in the light most
favorable to plaintiff, no rational jury -- with knowledge of the
law -- could find either that he was `otherwise qualified' to
perform the essential functions of his job or that S&P's actions in
terminating the plaintiff were motivated by discrimination."=20
A.S.L.

NY Appellate Court Finds Surviving Same-Sex Partner A "Family
Member" For Tenancy Succession Rights Based Upon Holy Union
Ceremony

In a brief but very important decision that eases the formalism on
family succession rights for same-sex couples, the New York Supreme
Court's Appellate Term for the 1st Department, which hears appeals
from the New York City Civil Court, voted 2-1 to allow such
succession relying nearly exclusively on respondent
and tenant's same-sex Holy Union ceremony and little else.  _Arnie
Realty Corp. v. Torres_, N.Y.L.J., 6/3/99, p.27, col.6
(N.Y.Sup.Ct.,  App. Term, 1st Dep't).  This could be the first step
toward the end of gay couples having to parade a laundry list of
marital-like status indicators before a court in order to establish
themselves as family members.

In 1986 Respondent Torres, then 23, moved into the subject
Westchester Bronx apartment of tenant Mr. Follette, 53, occupying
a separate bedroom.  They lived together for eight years until 1994
when Follette died.  In 1988, Follette and Torres were wed in a
Holy Union ceremony.  Torres did not participate in the funeral
arrangements and was not named in Follette's will or as beneficiary
of his life insurance policy; however, Follette had instructed the
policy beneficiary, the priest who had performed the Holy Union
ceremony, to leave Torres the balance thereof after estate debts
were paid.  Torres testified that he lived in the apartment and did
the housework and cooking while Follette worked, and that when
Follette became ill, he took care of him until his death.  The
landlord testified that Follette had described Torres as "a
boarder" in the apartment.  =20

After Follette's death, the landlord sought to evict Torres, who
then successfully sued for succession rights under the rule in
_Braschi v. Stahl Assoc. Co._, now codified in 9 N.Y.C.R.R. 2204.6.
Landlord appealed.

Of the triumvirate, Presiding Justice Parness and Justice Davis
affirmed the civil court ruling in Torres' favor, stating in a
one-paragraph decision that Torres had established that he was
entitled to succeed to the rent-controlled tenancy as a
non-traditional family member.  The court seems to have relied
solely upon the facts that Torres and Follette formalized their
relationship in a Holy Union ceremony and that Follette made
indirect financial provisions for Torres' support after his death.=20
In a defiant dissenting opinion, nearly 10 times the length of the
opinion for the court, Justice William P. McCooe reasoned that
Torres did not meet his burden of proof establishing that he and
Follette had an "emotional and financial commitment and
interdependence" to one another.

McCooe began with the financial component, reiterating the
testimonies of Torres and the landlord that Torres slept in a
separate bedroom and did housekeeper duties and that Follette told
the landlord that Torres was a boarder.  There was no other witness
on this point.  Furthermore, McCooe found it troublesome that there
was no documentary evidence during this 8-year period such as joint
bank accounts or intermingled funds to establish such financial
interdependence and that the life insurance and the will designated
others.  McCooe then turned to the more intangible factor of
Torres' emotional relationship with Follette.  Here, McCooe relies
heavily of testimony of Father Pridemore, the Episcopal priest who
officiated Torres' and Follette's Holy Union, and his definition
thereof and sought to discover if such existed between them.=20
McCooe found a lack of such commitment, at least in the later
years, citing family court and INS documents stating that Torres
was the father of a child born during this period, Torres' lack of
knowledge of Follette's personal life, absence of any "jointly
attending family functions," that Follette's cousins handled the
funeral arrangements and that Torres was not designated in the life
insurance policy or the will.

"Generally," McCooe finds, "there is no better test in defining the
economic and emotional relationship between two people than who the
deceased leaves his money to [sic]."  McCooe ultimately found that
Torres did not sustain his burden of proof to establish his
credentials as a non-traditional family member and therefore argued
that the judgment below should have been reversed.  _K. Jacob
Ruppert_

Florida Circuit Court Upholds Application of Domestic Violence Law
to Gay Couples

Hillsborough County, Florida, Circuit Judge Ron Ficarrotta ruled
June 23 that Florida's domestic violence law applies to same-sex
couples.  The ruling came on a motion by David Baker to dismiss
charges that he violated a restraining order that was granted last
year to his former partner, David Lozier, who alleged that Baker
had struck him and threatened violence against him.  Lozier went to
the police when Baker continued to make threatening phone calls
despite the order.  _State v. Baker_.

Under the Florida statute, as amended in 1991, domestic violence
injunctions are available to people who are related by blood or
marriage, who have a child in common, and who live or have lived
together "as if a family."  The statute does not define the phrase
"as if a family," but Judge Ficarrotta found that the 1991
amendment adding that phrase to the law showed that the legislature
intended to expand coverage "beyond the traditional husband and
wife scenario."  Lozier and Baker had lived together for seven
years and shared a joint bank account prior to the dissolution of
their relationship.

"To hold otherwise," wrote the judge, "would undermine the efforts
to safeguard, regardless of gender, the rights of victims of
domestic violence."  Rejecting an argument by the public defender's
office on behalf of Baker that applying the law to gay couples
would violate Florida's public policy against same-sex marriage,
Ficarrotta wrote, "The Court's role in issuing the injunction is to
protect the victim and stop the violence.  It is not to validate
relationships."

A hearing is scheduled for July 27 on the merits of the case
against Baker.  _Tampa Tribune_, _St. Petersburg Times_, June 24.=20
A.S.L.

U.S. Court Rules for Gay Police Officer on Harassment Claim

A jury of the U.S. District Court for the Eastern District of New
York found Nassau County and its police force liable for anti-gay
harassment against James M. Quinn, a former police officer.  The
verdict, announced June 16, awarded Quinn a total of $380,000 in
damages, including punitive damage awards against three named
defendants in the police force and $250,000 compensation for
emotional distress. =20

Quinn had joined the force in 1986.  He claimed that after fellow
officers learned that he was gay in 1987, he became the target of
pranks, pornographic graffiti and pictures, and doctored records
hung around the station house accusing him of transvestism and
child molestation.  Quinn also claimed that he was "over-
supervised," as if his superiors could not trust him to carry out
his job because of his sexual orientation.  Quinn claimed his
protests to supervisors, some of whom were joining in the
harassment, were ignored.  Prior to the jury verdict, U.S. District
Judge Arthur Spatt ruled from the bench that the equal protection
clause of the 14th Amendment could provide the basis for a
workplace harassment claim by a gay state employee.

In an opinion issued on June 28 in _Quinn v. Nassau County Police
Department_, 1999 WL 450863 (E.D.N.Y.), Spatt elaborated his
reasoning, drawing heavily on the Supreme Court's ruling in _Romer
v. Evans_, 517 U.S. 620 (1996).  "The _Romer_ Court established
that government discrimination against homosexuals, in and of
itself, violates the Equal Protection Clause," Spatt concluded.=20
Noting that subsequent court decisions have applied a "rational
basis" test to determine whether government policies that
discriminate on the basis of sexual orientation are constitutional,
he said that "as in _Romer_, these Courts recognized that
government action in a civil rather than a military setting cannot
survive a rational basis review when it is motivated by irrational
fear and prejudice towards homosexuals." =20

Rejecting an attempt by the defendants to have the verdict set
aside, Spatt ruled that "the plaintiff has introduced more than
sufficient evidence to support a claim for an Equal Protection
violation based on a workplace environment that transcended
hostile, coarse and boorish behavior, and which was motivated by an
invidious, irrational fear and prejudice towards homosexuals.=20
Section 1983 liability can be imposed upon the employer, the Nassau
County Police Department, and the remaining defendant supervisors,
for failing to properly investigate and address Quinn's complaints,
and permitting the acts of harassment which the supervisors either
observed or themselves perpetrated."

Spatt rejected the suggestion that the result should be governed by
a recent ruling by another judge of the same district (see below)
that anti-gay harassment claims were not actionable under Title
VII.  _Simonton v. Runyon_, 1999 WL 345956 (E.D.N.Y., May 26).=20
Spatt noted that unlike the 14th Amendment, Title VII specifies
distinct categories of protection.  While characterizing that
decision as "well-written and thoughtful," Spatt found it not to be
controlling.  He also found that Quinn had stated a separate claim
for conspiracy to deprive him of his civil rights under 42 U.S.C.
sec. 1985(3), finding that the case qualifies for the "personal
interest" exception to the intracorporate conspiracy doctrine
(under which a court is normally barred from finding that employees
of a common enterprise are engaged in a conspiracy), based on the
determination that individuals were harassing Quinn out of personal
malice, not as an effectuation of some concerted official policy.=20


However, Spatt decided to dismiss Quinn's First Amendment claim, in
which he alleged he suffered retaliation because he complained
about his treatment.  Spatt found that Quinn's only formal
complaint did not mention his sexual orientation claim, relying
instead on a disability based on the injury that led to his
retirement from the police force, and thus did not constitute
speech on a matter of public interest; further, there was scant
evidence that any of the torment he suffered was in retaliation for
this particular complaint.=20

Spatt denied the defendants' request to cut down the emotional
distress damages.  The defendants argued that the size of the award
"shocks the conscience," but Spatt found it not out of line with
other similar damage awards in other cases.  "Quinn's testimony,
which his social worker corroborated, as to the emotional distress
he suffered from years of chronic, pervasive, humiliating and
severe sexual orientation harassment adequately supports the award
of compensatory damages in this case," wrote Spatt, concluding that
"This award does not shock the Court's conscience."  A.S.L.

Arkansas Sodomy Challenge to Proceed in Different Court

In a unanimous ruling issued June 24, the Arkansas Supreme Court
held that a challenge to the constitutionality of the state's
sodomy law had been filed in the wrong court, but sent it to the
correct court for further proceedings, rejecting the state's
argument that the plaintiffs lack standing to challenge the law.=20
_Bryant v. Picado_, 1999 WL 419115.

Seven gay and lesbian citizens of Arkansas, represented by Lambda
Legal Defense & Education Fund and local cooperating attorneys in
Arkansas, filed suit in January 1998 in the Pulaski County Chancery
Court, seeking equitable relief against future enforcement of Ark.
Code Ann. sec. 5-14-122, which makes it a misdemeanor for persons
of the same sex to engage in anal or oral sex.  They charged both
federal and state constitutional violations.  The state moved to
dismiss the case, arguing sovereign immunity and claiming that the
plaintiffs, who have never been prosecuted under the statute,
lacked standing, that the named state officials were not amenable
to suit, and that the Chancery Court did not have jurisdiction over
the case.  The Chancery Court issued a decision denying the state's
motion, and the state filed an interlocutory appeal.

Writing for the court, Justice Donald L. Corbin expressed no view
as to most of the state's arguments, but found that the state was
correct in asserting that the Chancery Court lacked jurisdiction of
the matter.  Although there are quite a few cases in which
challenges to the validity of a statute have been brought in the
Chancery Court seeking equitable relief, the court insisted that
only a court which would have had subject matter jurisdiction of an
action under the challenged statute would have jurisdiction to hear
an action challenging the statute's constitutionality, so this
challenged should have been filed in the circuit court. =20

However, without further explanation, Corbin wrote, "We disagree
with Appellants' assertion that Appellees' constitutional challenge
must be postponed until one or more of them is arrested and charged
with violating the statute," thus agreeing that the plaintiffs have
standing to bring the case, and passing silently over the state's
other arguments.  The court remanded the case to the chancery
court, with directions to transfer the complaint to the circuit
court, where, presumably, the ruling as to plaintiffs' standing
will be considered settled under the doctrine of law of the case.=20


Justice Robert Brown wrote separately to state his "sympathy for
attorneys researching proper jurisdiction for a declaration of a
criminal statute's constitutionality," because such research would
not, prior to this decision, have turned up a totally clear answer.=20
"Here," wrote Brown, "a personal right to privacy is asserted by
the appellees who argue that the threat of criminal prosecution
hangs over their heads like a sword of Damocles.  Circuit court is
the proper jurisdiction for things criminal, and . . . circuit
court may not only resolve the constitutional question but also
enjoin enforcement of an unconstitutional statute."

Lambda staff attorney Suzanne Goldberg, lead counsel in the case,
argued before the Arkansas Supreme Court on behalf of the
plaintiffs.  A.S.L.

Louisiana Appeals Court Strikes Down Obscene Devices Law

A unanimous panel of the Louisiana Court of Appeal, 1st Circuit,
declared unconstitutional a state law that prohibits the sale of
"obscene devices" (i.e., sex toys) in _State v. Brenan_, 1999 WL
486977 (July 1).  While the court premised its decision on the Due
Process Clause of the 14th Amendment, finding that the state's
justification for the law was insufficient under rationality
review, a separate concurrence by two of the judges also noted the
state constitutional right of privacy as a possible source for
reaching the same result.

Christine Brenan operates a business called The Dance Box where she
sells dance costumes and supplies for adults and children.  In a
separate partitioned section of the store from which children are
excluded, she stocks sex toys and sexual aids.  Some officious
members of the public, offended by these items, complained to the
police, who came and confiscated them and arrested Brenan.  Brenan
was convicted on two counts of "promoting obscene devices" and
sentenced to 2 years at hard labor and a $1500 fine on each count,
but the judge suspended sentence and placed her on 5 years
probation.  Brenan appealed.

Writing for the unanimous panel, Chief Judge Carter found
persuasive the recent decision in _Williams v. Pryor_, 41 F.Supp.2d
1257 (N.D.Al. 1999), in which a federal court found a similar
statute unconstitutional on Due Process grounds.  Wrote Carter, "we
agree with the rationale of _Williams v. Pryor_ and likewise find
the instant statute lacks a reasonable, rational relationship to a
legitimate state interest."

The state never really articulated any sort of specific
justification for the statute in its litigation papers, but Carter
imagined the state was interested in protecting public morals and
specifically protecting unconsenting adults from being offended and
children from being exposed prematurely to sexually explicit
materials.  But Carter found the statute's broad prohibition on
sales went too far beyond merely achieving these goals.  Carter
noted that it was unlikely that an unconsenting adult would buy an
obscene device, and the state could achieve its legitimate
objective by regulating the manner of marketing to ensure that
adults were not unwittingly exposed to offensive materials and that
children were totally shielded from exposure to them.

In a separate special concurrence, Carter, with the concurrence of
one other member of the panel, also proposed the state
constitutional right of privacy as a source of protection for
Brenan's activities.  Noting that another circuit of the court had
struck down the sodomy law recently on privacy grounds, Carter
speculated that even a more narrowly drafted version of the law
might well run afoul of the state privacy right, since the state
would have the more difficult burden of showing a compelling
interest and a statute narrowly drafted to achieve that interest.=20
Carter also noted that although the Georgia courts had upheld a
similar statute, that decision might now be questionable in light
of the subsequent Georgia Supreme Court ruling striking down that
state's sodomy law, _Powell v. State_, 510 S.E.2d 18 (1998). A.S.L.

Illinois Appellate Court Vacates Adoption Denials by Rogue Judge

Cook County (Chicago, Illinois) Circuit Court Judge Susan J. McDunn
has been relieved of her duties on the bench as a result of
judicial outrage at her actions in two adoption cases brought
before her by lesbian couples.  Although neither adoption case
presented any special issues deserving of extended consideration,
McDunn insisted on holding "best interest hearings" and then
delayed in ruling on the petitions.  McDunn invited the anti-gay
Family Research Council to become a party to one of the cases and
to file papers opposing the adoptions.  When the parties sought to
get another judge appointed to their cases and a supervising judge
reassigned the cases to himself and granted the adoptions, McDunn,
on her own initiative, reclaimed jurisdiction and issued her own
order voiding the adoptions.  An appeal to the Illinois Appellate
Court resulted in vacating her orders.  Chief Justice Donald P.
O'Connell wrote in a June 3 order reassigning McDunn to
administrative duties: "Judge Susan J. McDunn has been publicly
implicated in conduct whereby she disregarded clear law in hearing
certain adoption matters. . . Judge McDunn decided cases before her
based upon her own personal bias." =20

On July 19, the Appellate Court issued an opinion by Justice Zwick
disposing of the legal issues in the adoption case.  _Matter of the
Petition of C.M.A. to Adopt K.D.W._, 1999 WL 507853 (Ill.App., 1st
Dist.).  Zwick noted McDunn's "extreme and patent bias against the
adoptive parents based upon their sexual orientation.  This bias
was manifest in numerous ways, including her insensitive probing
and wrongful interrogation of the adoptive parents' early sexual
history.  We can conceive of no legitimate motive or worthwhile
purpose for questioning the petitioners on such clearly irrelevant
matters." =20

"Petitioners in both of these cases came to our state court system
in order to be allowed to adopt children, children with whom they
had already formed a loving relationship over a period of time.  A
higher purpose cannot be imagined.  To have the petitioners treated
in the manner that they were is nothing less than appalling."

Zwick characterized McDunn's attempt to bring in the Family
Research Council as a "secondary guardian" for the adoptive
children to be "legally and logically indefensible," and noted that
McDunn had "improperly disseminated sensitive and confidential
information to non-parties, in violation of section 50/18 of the
Adoption Act."

The Chicago Council of Lawyers and the Gay Bar Association of
Chicago have filed a complaint with the Judicial Inquiry Board
concerning McDunn's conduct.  _Chicago Lawyer_, July 1999. A.S.L.

California Court Holds Definition of "Developmental Disability"
Unneeded in Consent Question=20

The California Court of Appeal, 4th Dist., affirmed the conviction
of a man for committing unlawful sodomy with two men in their early
twenties, confirming a jury's finding that the men were incapable
of giving consent due to "developmental disability" absent a jury
instruction defining that term. _People v. Mobley_, 72 Cal.App.4th
761, 85 Cal.Rptr.2d 474 (May 28).

Robert Mobley had anal intercourse with Steve and Jon.  On
cross-examination, Steve agreed that he could make his own
decisions and select his own friends, that he "sort of" wanted to
have intercourse when Mobley requested it, and that he had sex with
Mobley freely and voluntarily.  Steve also testified that he had
had the sex for friendship, and agreed that he was "the type of
person that if someone tells you to do something that you just
automatically do it."=20

Jon testified that he was "confused and had mixed feelings" when
Mobley asked him for sex, but "he agreed he voluntarily did the
acts because `[he] was told.'" =20

Penal Code section 286 criminalizes the act of sodomy performed
with "[another person] who at the time was incapable, because of
mental disorder or developmental or physical disability, of giving
legal consent to said act, and said defendant knew or reasonably
should have known of such condition."  The code states that the
existence of a conservatorship based on grave disability "as a
result of a mental disorder" is insufficient to nullify consent and
"that a `developmental' disability rendered the alleged victim
incapable of giving consent" must be proven.    =20

The prosecution's psychologist expert witness testified that
"although neither Steve nor Jon were technically mentally retarded"
because Steve's I.Q. tested at 80 and Jon's at 70-75, "such was not
a true indicator of their ability to think and reason without
consideration of their `adaptive behavior' or social living
skills."  Based on the testimony of it's own psychologist, the
defense counsel requested a jury instruction "that the term
`developmental disability' refers to a person who has an I.Q. of 69
or less."  The superior court declined to so instruct, "stating it
did not believe such was an accurate statement of the law."

Mobley posits that the legal-medical definition of "developmental
disability" in Welfare and Institutions Code section 4512(a) is the
proper definition for a "developmental disability" that could
affect the capacity of Steve and Jon to give effective consent.
Section 4512(a) defines the term to "include mental retardation,
cerebral palsy, epilepsy, and autism [and] disabling conditions
closely related to mental retardation or to require treatment
similar to that required for individuals with mental retardation."=20


The court of appeal, in an opinion by Judge Huffman, agreed with
the trial court "that Mobley's interpretation is a hypertechnical
reading" and that "no technical legal or medical diagnosis of
developmental disability" is required for conviction under section
286.  In his appeal Mobley claimed that the trial court had a sua
sponte duty to instruct on the technical medical-legal definition
of the term "developmental disability."  Mobley also claims there
was insufficient evidence of incapacity of either victim to give
legal consent.
Citing _Bowers v. Hardwick_ on the point that sodomy was
"originally criminal even between consenting adults" and implying
that the legislature carved out "consenting adults" as an
exceptional category not requiring protection from sodomy, the
appellate court went on to resist the "almost irresistible"
presumption that "where the language of a statute uses terms that
have been judicially construed -- the terms have been used in the
precise and technical sense -- placed upon them by the courts."  =20

As a result of two prior convictions Mobley was sentenced to a
prison term of 435 years to life.  _Mark Major_

Pennsylvania Judge Denies Application for Second-Parent Adoption

Erie County, Pennsylvania, Common Pleas Court Judge Shad Connolly
issued an opinion on June 18 denying an application by a gay man to
become the adoptive parent of his partner's adopted son and
daughter.  _Matter of Adoption of C.C.G. and Z.C.G._.  Noting that
Pennsylvania has passed a statute specifically forbidding same-sex
marriages, Connolly concluded that the applicant could not be
considered a "spouse" of the adoptive parent of the two children,
and thus under a strict construction of Pennsylvania's adoption
statute, would not be qualified to adopt without terminating the
parental rights of his partner. =20

In a report about the case published in the _Pennsylvania Law
Weekly_ on July 19, Danielle Rodier noted that Pennsylvania trial
courts are divided on the question whether second-parent adoptions
can be granted.  While a Lancaster County judge had issued an
opinion very similar to Connolly's in 1998, _Adoption of R.B.F. and
R.C.F._, PICS Case No. 98-2395 (Common Pleas Ct., Lancaster Co.,
Oct. 22, 1998), a York County judge granted such a petition in
_Adoption of E.O.G._, 28 D&C 4th 262 (Common Pleas Ct., York Co.,
1993).  It awaits somebody willing to go more public and appeal the
denial of a petition to a higher court to resolve these
differences.

Rodier's article points out the curious fact that Connolly issued
his opinion on June 18 even though a hearing was scheduled in the
case on June 24.  Indeed, an attorney for the petitioner, unaware
of the judge's unpublished opinion, had actually filed a motion to
withdraw the petition on June 22, having concluded that the judge
was "preordained" to rule against the petition.  A.S.L.

Anti-Gay Harassment Claim Fails Under Title VII

The U.S. District Court for the Eastern District N.Y. dismissed a
Title VII sex discrimination claim by a gay male postal worker who
was harassed because of his sexual orientation. _Simonton v.
Runyon_, 1999 WL 345956 (May 26). Dwayne Simonton's suit against
his employer attempted to use a theory of gender discrimination
based on _Oncale v. Sundowner Offshore Services, Inc._, 118 S.Ct.
998 (1998), which held that harassment between two persons of the
same gender could be actionable.  District Judge Wexler dismissed
the complaint for failure to state a claim, focusing on _Oncale_'s
requirement that the discrimination be "based on sex.". Noting that
the _Oncale_ court never mentioned the issue of whether same-sex
harassment based on sexual orientation was actionable, the line of
cases holding to the contrary were undisturbed, the judge reasoned,
interpreting Simonton's claim as being based on his sexual
orientation, not his sex; therefore, he could not get his foot in
the door opened by _Oncale_. _Dirk Williams_

Gay Man Unsuccessfully Sues for Wrongful Commitment

A panel of the U.S. Appeals Court for the 8th Circuit upheld
summary judgement in favor of a police chief who was accused of
lying to get a gay man, George Hedges, involuntarily committed. =20
Hedges v. Poletis, 1999 WL 417333 (June 3).  The panel found that
the police chief, George Randy Poletis, was entitled to qualified
immunity.  =20

In 1995 Hedges, a resident of Lake Lotawana, Missouri, was in a
dispute with his neighbors, the Snodgrasses. There had been=20
reports filed by both Hedges and the Snodgrasses with the police.=20
In May of that year, Poletis had been named police chief.  Soon
after,  the mayor received a letter regarding the dispute.  The
source of the letter is not indicated.  It included a copy of a
letter by Hedges' psychiatrist noting that he had anxiety, major
depression, obsessive compulsive disorder, and that he was on
psychotropic medication.  It also noted that Hedges had purchased
a gun for self-protection.   =20

The mayor had Poletis review reports regarding the dispute.=20
Poletis believed that Hedges was "potentially dangerous," but that
there was no probable cause for involuntary commitment.   He
referred the case to a local mental health center.  Thomas Wells,
who investigated, found that Hedges had not threatened anyone, and
closed the case on August 3 without consulting Poletis.  Poletis
called Wells on August 8 to report that Hedges had been seen
beating himself and threatening a neighbor.  On August 17, Wells
interviewed a female neighbor who stated that Hedges had been
relatively calm for ten days.  That evening, Wells received a call
from a male neighbor asking him to continue the investigation.  The
next morning, Wells received a call from James Snodgrass that the
police had recommended that his family leave their dock so as not
to be shot by Hedges.  At Well's request, Poletis collected
affidavits from himself, other officers and James Snodgrass.  Wells
sought to have Hedges committed, which was approved the next day by
the County Court.  Hedges was released on August 21.=20

Hedges sued Poletis alleging, denial of due process and equal
protection.  Hedges alleged that Poletis deliberately provided
false information to Wells and sought to commit him because he is
gay.  A federal district judge granted summary judgment to the
defendants on August 25, 1998.  In upholding the summary judgement,
the panel found that Poletis had not "lied to convince the mental
health investigator to begin commitment proceedings."  The panel
described Hedges' claims as "bare assertions," but acknowledged
that Hedges' sexual orientation was known and was a factor.  The
panel noted that "some officers" testified that they spoke to
Poletis about Hedges being gay. Hedges said that his sexual
orientation was "well-known" and that Poletis must have known.
"Poletis was motivated more from the fact that he believed Hedges
to be dangerous than from the fact that he was a homosexual," the
panel found. _Daniel R Schaffer_

Litigation Notes

The California Supreme Court announced July 21 that it will not
review the 1st District Court of Appeal's decision in _Guardianship
of Z.C.W.; Kathleen C. v. Lisa W._, 84 Cal. Rptr. 2d 48, 71 Cal.
App. 4th 524 (1999), in which the court of appeal denied a petition
by a lesbian co-parent to be appointed guardian of the two children
she had been raising together with her former partner.  _Los
Angeles Times_, July 22.  The trial court, affirmed by the court of
appeal, found that where the biological mother was fit and
presented no harm to the children, a person who was not legally
related to the children through blood or adoption could not seek
appointment as a guardian.  (Kathleen's petition to be appointed a
guardian was an apparent attempt to make an end-run around
California precedents denying visitation petitions by lesbian co-
parents.)  Clearly, the California courts are set against any
change in this area by judicial fiat, so the ball is in the
legislature's court. * * * On the same date, the California Supreme
Court announced that it would rule on an appeal filed by San
Francisco Giants baseball star Barry Bonds from a lower court
decision concerning the enforceability of a prenuptial agreement
with his former wife.  The legal issue in the case is whether such
an agreement is rendered unenforceable if one of the parties was
not represented by separate counsel.  Since it is common for
couples to use one attorney for the drafting and execution of
prenuptial and living together agreements, the court's ultimate
decision could have an impact for same-sex couples as well as
married couples who have made such agreements.

The New Jersey Supreme Court has rejected a constitutional
challenge to the state's law authorizing enhancement of penalties
for crimes motivated by bias.  _State v. Apprendi_, 1999 WL 417435
(June 24).  The very lengthy opinion for the court by Justice Ohern
concludes that the statute complies with the guidelines established
by the U.S. Supreme Court and does not unfairly prejudice
defendants by failing to require the prosecutor to prove beyond a
reasonable doubt that the crime was motivated by bias.  The court
was comfortable with the clear and convincing evidence standard for
such determinations. =20

The Louisiana Supreme Court announced June 25 that it will review
the decision in _State v. Smith_, 729 So.2d 648 (La.App., 4th Cir.,
1999), in which the state's sodomy law was declared
unconstitutional as applied to consensual, non-commercial private
sexual acts between adults.  The Louisiana sodomy law, LSA-R.S.
14:89A(1), applies to all anal or oral sex regardless of the
genders of participants.  The _Smith_ case involved consensual oral
sex between and man and a woman. =20

There's nothing like a lawsuit to focus the attention of an
educational bureaucrat.  In April, a group of students approached
Richard Donegan, the assistant principal of Manchester, New
Hampshire, High School West, asking for recognition of a
Gay/Straight Alliance at the school, and were denied.  Indeed, the
students were told that they would have to obtain permission from
the School Board even to hold meetings on school property.=20
Represented by Boston's Gay & Lesbian Advocates and Defenders, they
filed a federal lawsuit invoking the Equal Access Act and naming as
defendants school principal Robert A. Baines and the Manchester
School District.  After a July 13 vote by the school board,
Principal Baines announced that the club would be recognized and
afforded equal treatment with other student clubs retroactive to
April 1, the date when the students first sought recognition.=20
_GLAD Press Release_, July 22.

The U.S. District Court for the Central District of California has
approved a $10,000 settlement of a claim that Bally Total Fitness,
Inc., discharged a male employee in retaliation for the employee
filling a same-sex harassment claim against a male co-worker.=20
_EEOC v. Bally Total Fitness, Inc._, CV-99-009900-WDK (C.D.Cal.,
judgement entered 7/7/99).  Bally's attorney did not admit any
wrongdoing, but insisted this was a "nuisance settlement to avoid
protracted and costly litigation." _BNA Daily Labor Report_ No.
133, 7/13/199.

The Gender Advocacy Internet News service reported that the New
Jersey Civil Rights Division has found probable cause on a
discrimination claim brought by a transsexual, Angela Bridgman,
against a New Jersey employer.  As New Jersey law forbids
discrimination on the basis of sex or sexual orientation but does
not specifically enumerate gender identity as a protected
characteristic, the ruling is significant administrative precedent
making it possible for transgendered persons suffering
discrimination to file complaints with the Division in the future.

Steven Eric Mullins, 25, pled guilty to murder in the death of
Billy Jack Gaither, in Coosa County, Alabama, Circuit Court on June
24.  He is expected to receive a life sentence.  Charles Monroe
Butler, Jr., who collaborated with Mullins in the murder and has
confessed to police, faces an Aug. 2 trial date unless he also
pleads guilty.  _Chicago Tribune_, June 25.

West Palm Beach, Florida, juries have convicted two teenagers of
murdering Steven Goedereis, a gay man, in 1998.  Bryan Donahue, 17,
and Billy Dodge, 18, allegedly beat and kicked Doedereis to death
after hearing him call Donahue "beautiful."  Donahue's attorney had
argued that Donahue was motivated by fear of being sexually
assaulted, not be anti-gay hatred.  Donahue faces a potential life
sentence, and Dodge faces up to 30 years.  _Orlando Sentinel_, June
15.

On June 21, Texas Circuit Judge Bill Rhea denied a motion by
Rebecca Bledsoe, the plaintiff in pending litigation, for a
temporary emergency order to block the state from placing any
children in foster or adoptive homes with gay parents.  Bledsoe, a
social worker, had lost her job over her refusal to effectuate her
agency's policies in this regard, and is now challenging the
policies in court.  Instead, Judge Rhea ordered both sides to brief
the issue of the legality of placing children in foster homes with
gay parents.  _ACLU Press Release_, June 22.

The _Washington Blade_ reported June 4 that a Massachusetts Appeals
Court reversed a probate court ruling that had rejected an attempt
by a lesbian to change her surname to the same as her partner's
surname.  The news report included a quote from the appeals court's
final order, as follows: "We find unpersuasive the judge's
rationale for dismissing the petition.  The judge reasoned that
allowing the petitioner to change her name is against the public
interest because it would mislead the public into believing that
the petitioner was somehow related to her live-in companion when in
fact she is not. . .  The record does not reflect, and the judge
does not articulate, however, any harm to the public interest that
would arise from any misunderstanding."  The _Blade_ report
attributes this story to the May 26 issue of New England's _in
newsweekly_.  We have been unable to locate this opinion on
Westlaw, Lexis, or on the website of the Massachusetts Law Weekly,
which publishes selected opinions of the Massachusetts appeals
courts.  If any reader can identify this case and point us to a
source for the opinion, we would be most appreciative.

A Travis County, Texas, jury convicted David Ludwick July 1 of the
capital murder of John Davis Cavness, Jr., a gay man, who was found
dead in his Austin home in January 1998.  _NY Blade News_, July 16.=20
A.S.L.

Federal Religion Bill May Open Big Loopholes in Gay Rights Laws

On July 15, the U.S. House of Representatives voted 306-118 in
favor of the Religious Liberty Protection Act, a measure intended
to overturn Supreme Court decisions that subjugate religious
practice rights to the requirements of general state laws.  (A
prior attempt by Congress to do this, called the Religious Freedom
Restoration Act, was struck down by the Supreme Court as an
unconstitutional violation of separation of powers.)  If passed by
the Senate and signed by the President, this bill would prohibit
state and local governments from placing a "substantial burden" on
individual exercise of religion in the absence of a compelling
state interest.

Fears were expressed that the bill would create a major loophole in
state and local laws forbidding discrimination on the basis of
sexual orientation, since it could be construed to grant exemptions
from compliance on any individual who has religious objections to
homosexuality.  Several Representatives presented an amendment
intended to carve out state and local civil rights laws from the
operation of this bill, but fell short on a vote of 234-190.=20
President Clinton has stated his support for the bill, noting the
need for "clarification of civil rights protections" if it passes.=20
A counterpart bill has not yet been introduced in the Senate,
although a Senate committee held hearings on the subject on June
23.  _New York Times_, July 16; _BNA Daily Labor Report_ No. 136,
7/16/99.  A.S.L.

Legislative Notes

Another go-round for the Employment Non-Discrimination Act in
Congress: On June 24, the latest version was introduced, with lead
sponsors James Jeffords, Edward Kennedy and Joseph Lieberman in the
Senate and Barney Frank and Christopher Shays in the House.  The
main change from earlier versions is an express ban on affirmative
action or other forms of preferential treatment on the basis of
sexual orientation.  The bill also exempts religious organizations,
the military, and employers of fewer than 15 people.  Rep. Shays,
a Republican, stated that the bill would pass the House if the
leadership allowed it to come to a vote.  The bill was introduced
with 35 Senate co-sponsors and 155 House co-sponsors.  In a
statement released after the introduction press conference,
President Clinton stated that he would "continue to work for its
passage until it becomes law." _BNA Daily Labor Report No. 122
(6/25/99), _Associated Press_, June 24.

The Nevada law banning employment discrimination on the basis of
sexual orientation by public employers and private for-profit
companies with 15 or more employees was signed into law on May 29
by Governor Kenny Guinn, a Republican.  Guinn said, "Signing this
bill was a matter of fairness and doing what's right for the people
of Nevada.  Discrimination based on race, gender, religion or
sexual orientation is wrong, and I hope this law sends that message
loud and clear."  The only openly-gay member of the Nevada
legislature, Assemblyman David Parks, a Las Vegas Democratic, had
introduced the bill in February, and pronounced himself "immensely
pleased" that the governor had signed it.  Parks indicated he would
next look into whether to propose legislation banning sexual
orientation discrimination in housing and public accommodations.=20
Nevada is one of eleven states that ban employment discrimination
based on sexual orientation.

Missouri enacted a tough new hate crimes law on July 1, providing
for enhanced sentences for crimes committed because of the victim's
race, color, religion, national origin, gender, sexual orientation,
and disability.  The new law replaces a more limited ethnic
intimidation law that was deemed inadequately effective by the
legislature.  _St. Louis Post-Dispatch_, July 2.

A quiet war has broken out between Utah's Division of Child and
Family Services and its lay board of trustees over the issue of gay
people as adoptive or foster parents.  The board, led by
conservative Scott Clark, voted 7-2 in January to oppose allowing
gays to be adoptive parents, but the Department is opposed to this
policy and has been working to block an attempt by the board to
disqualify gays automatically as foster parents.  Clark claims that
gay parents expose their children to "gender confusion" by not
modeling proper gender roles. _Salt Lake Tribune_, July 13.

An attempt by Connecticut legislatures to repair the damage done by
the state Supreme Court's decision in _In re the Adoption of Baby
Z_, 724 A.2d 1035 (Conn. 1999), has foundered due to an anti-gay
marriage amendment appended to the bill.  In _Baby Z_, the court
held that Connecticut adoption statutes do not allow for the
granting of second-parent adoptions for gay couples.  The pending
legislation, which has widespread support, was intended to amend
the adoption law to allow such adoptions, but late on June 2 the
state House of Representative voted to amend the bill to include a
ban on recognizing same-sex marriages.  As a result, the bill
appeared dead for this session, since many of the pro-gay
proponents do not want to vote for the same-sex marriage ban.=20
_Hartford Courant_, June 4.

The Maine Municipal Employees Health Trust directors voted 9-1 in
May to include domestic partner coverage under the trust's health
and dental plans, effective January 1, 2000.  As most Maine
municipalities participate in the employee benefits program
administered by the trust, this means that most municipal employees
in Maine will become eligible for such coverage next year.  The
coverage will also extend to children of domestic partners if they
are legal tax dependents of the employee.  The Health Trust
Services Director, Stephen Gove, told the _Bangor Daily News_ (June
4) that eligibility requirements will include a least one year of
joint residence and a showing of financial interdependence.=20
Coverage will extend to both opposite-sex and same-sex unmarried
couples.

The Lexington-Fayette Urban County Council in Kentucky voted July
8 to ban discrimination on the basis of sexual orientation in
housing, employment and public accommodations, becoming the second
jurisdiction in Kentucky after Louisville to adopt a gay rights
law.  Louisville's recently-adopted ordinance, however, applies
only to employment.  The Lexington measure, No. 201-99, also
benefits transgendered people, since it includes "gender identity"
as part of the protected characteristic, as did Louisville.  The
measure was amended during final consideration to exempt religious
groups unless they receive substantial government funding.=20
_Louisville Courier-Journal_, July 9.

On July 13, the Milwaukee, Wisconsin, City Council voted 10-7 to
approve an ordinance establishing a domestic partnership registry
for same-sex couples.  Mayor John Norquist signed the measure later
that day.  It will take effect September 1.  The measure confers no
tangible benefits on those who register, but the existence of the
registry will give businesses a method of determining whether
particular people are qualified to receive domestic partnership
benefits or other family-type recognition.  Registrants must be 18
or older, live together and show some for of financial
consolidation, such as joint bank accounts or joint ownership of
property such as a car or a home.  The city's Fiscal Bureau Manager
estimated that 500 couples will register during the first year, and
an additional 100 each subsequent year, basing this on the
experience of Madison, Wisconsin, where 349 couples have registered
since Madison's system went into effect in 1990.  _The Capital
Times_, _The Milwaukee Journal Sentinel_, July 14.

Voters in Albuquerque, New Mexico, will face a series of proposed
changes to their city charter in an October election, including a
proposal to add the words "sexual orientation" and "mental
disability" to the charter's list of prohibited reasons for
discrimination.  The charter already prohibits discrimination based
on race, color, religion, sex, national origin or ancestry, age and
physical handicap.  _Albuquerque Journal_, June 22.

The Chicago Transit Authority has approved a proposal to extend
health coverage to same-sex partners of CTA employees, beginning in
July.  The proposal covers medical, dental and vision coverage,
which is current offered only for employees' legal spouses.  CTA's
move brought it in line with the City of Chicago and Cook County,
which had earlier passed ordinances extending such benefits.  CTA
joins Chicago and Cook County in limiting DP coverage to same-sex
partners.  _CTA Media Relations Dept. Press Release_, June 16.

The National Gay & Lesbian Task Force (NGLTF) announced May 25 that
it will not support the enactment of the Employment Non-
Discrimination Act (ENDA), now pending in Congress, unless it is
amended to include protection for "gender expression," a phrase
intended to cover transgendered persons and others who do not
conform to gender stereotypes.  _Washington Blade_, June 11. A.S.L.

Law & Society Notes

On June 11, U.S. President Bill Clinton issued his first official
proclamation of Gay and Lesbian Pride Month.  "I encourage all
Americans to observe this month with appropriate programs,
ceremonies, and activities that celebrate our diversity," said
Clinton's proclamation, "and to remember throughout the year the
gay and lesbian Americans whose many and varied contributions have
enriched our national life."  The national press took little note
of the proclamation, but the Southern Baptist Convention, meeting
in Atlanta, approved a resolution rebuking the president and asking
Clinton to rescind his recess appointment of James Hormel as
Ambassador to Luxembourg.  _Washington Blade_, June 18.

James Hormel was sworn in by U.S. Secretary of State Madeleine
Albright on June 29 as Ambassador to Luxembourg.  Hormel, who
received a recess appointment from President Clinton after a cabal
of Republican senators blocked any vote on his nomination, is the
first openly-gay person to serve as a U.S. ambassador.  The
swearing-in ceremony was unusually large and public, especially
given the size of the country to which Hormel will represent U.S.
interests. _San Francisco Chronicle_, June 30.

Virginia Apuzzo, Assistant to the President for Management and
Administration, the highest ranking openly-lesbian member of the
Clinton Administration, will leave the White House to become first
occupant of the newly-created Virginia Apuzzo Chair for Leadership
and Public Policy at the National Gay & Lesbian Task Force Policy
Institute, based in New York.  _Washington Blade_, June 11. =20

Q. Todd Dickinson, an openly-gay attorney who has been serving as
the U.S. Assistant Secretary of Commerce and Commissioner of
Patents in an acting capacity since his predecessor, openly-gay
attorney Bruce Lehmann, left that position, was nominated by
President Clinton on July 6 to assume the position in his own
right.  According to _Legal Times_, Dickinson is considered by
experts to be highly qualified for the post, and there was some
speculation that the six-month delay by the administration in
making the appointment may be due to Dickinson's association as
Lehman's assistant.  Lehman proved to be controversial due to his
efforts to revamp the program and make basic changes in U.S.
intellectual property law.  The position requires Senate
confirmation.   _Washington Blade_, July 16.

The _Washington Blade_ (July 9) reported that U.S. Rep. Janice
Schakowsky (D.-Ill.) has amended her office non-discrimination
policy to include "gender self-image or identity," thus apparently
becoming the first member of Congress to ban discrimination against
transgendered individuals in her office.

In an investigative article by Dave Moniz titled "Military Adjusts
to `Don't Ask, Don't Tell'" the _Christian Science Monitor_ (July
13) reports that attitudes within the military towards the presence
of gay people have moderated since the heated debates of 1993.=20
Moniz reports a sociological study showing that opposition to
service by gay people has declined among male Army personnel from
77 percent to 52 percent, and among female Army personnel from 34
percent to 25 percent.  Moniz reports that the number of honorable
discharges for homosexuality is up, but military spokespersons
insist that this is due to new recruits voluntarily "coming out" in
order to be discharged after deciding they really don't want to go
through with their enlistments.  The article does report the views
of gay spokespersons who insist that discrimination against gays is
still a big problem in the military under the current policy, which
provides that gay people may serve so long as the fiction can be
maintained that they are not really there. * * * The Servicemembers
Legal Defense Network has sounded the alert about the killing of
Pfc. Barry L. Winchell in Army barracks at Ft. Campbell, Kentucky
on July 5.  Spec. Justin R. Fisher and Pvt. Calvin N. Glover have
been charged with offenses in the death, which SLDN suggests was
motivated by Winchell's perceived sexual orientation.  Military
investigators have been tight-lipped about what they have found
thus far, apart from filing charges.  _Associated Press_, July 21.

The General Assembly of the Presbyterian Church (USA) voted 3-2
against a proposal to repeal a church law that effectively bans gay
men and lesbians from being ordained as ministers in the church.=20
The 319-198 vote took place June 25 during the denomination's
annual meeting in Ft. Worth, Texas.  _New York Times News Service_,
June 26.

A mini-panic ensued in Houston when Rev. Rick Scarborough, founder
of a right-wing non-profit group called Vision America, received an
anonymous fax and email suggesting that illegal same-sex marriages
were being performed as a result of certain Texas courts granting
name changes to pre-operative transsexuals, who were then
attempting to marry their "same-sex" partners.  Birth certificates
are not required to get a marriage license in Texas, so
theoretically a preoperative male-to-female transsexual could get
a name change and driver's license in the new name, then apply for
a license to marry a man.  _Nat'l L. J._, July 12.

M. John Berry, the openly-gay Assistant Secretary of the Interior,
announced on June 21 at the annual Garden Party benefit held by the
New York City Gay and Lesbian Community Services Center that the
Interior Department has added the Stonewall Inn and its immediate
surroundings to the National Register of Historic Places, in
recognition of the historic significance of the events of June 1969
that took place there and led to the birth of the modern lesbian
and gay rights movement.  The listing is of symbolic significance,
but may prove useful in protecting the site from any major future
modification that detracts from its historic value.

One gay businessman is taking the problem of discrimination into
his own hands.  North Carolina merchant Bob Page has adopted a
policy of asking all vendors whether they discriminate on the basis
of sexual orientation, and refusing to do business with those who
either refuse to answer or fail to submit a satisfactory policy on
employment discrimination.  Page's business, Replacements Ltd.,
sells hard to find china, silverware and crystal, and deals with
over 300 vendors.  _Greensboro News & Record_, June 28. A.S.L.

International Notes

The Dutch cabinet has approved the introduction in Parliament of a
bill that would make marriage and adoption available for same-sex
partners.  The bill will not end the system of registered
partnership, for those who prefer it, but instead will allow these
systems to co-exist for five years, during which registered
partners would have an option to convert their relationship to a
marriage.  The only difference between opposite-sex and same-sex
marriage will be that if a child is born to a woman in a lesbian
marriage, her female spouse will not be presumed to be the father;
however, through adoption, she will be able to become the second
mother.  Given the procedures followed for legislation in the
Netherlands, it is expected that it will take a few years for the
bill to proceed through both houses of the Parliament to final
adoption.  Based on a report posted by Kees Waaldijk, Faculty of
Law, Leiden University, on June 27.

The Finnish government is poised to enact a measure that would
allow same-sex couples to register their partnerships and obtain
most of the rights of married couples.  The proposal is similar to
laws now existing in the other Scandinavian countries.  The main
distinction from marriage is that registered same-sex couples would
not be allowed to jointly adopt children.  _Reuters_, June 3.

In a symbolic reaction to the Canadian Supreme Court's decision in
_M v. H_, holding that Ontario's failure to include same-sex
couples as "spouses" under its family law statute that imposes
spousal support obligations is a violation of the Canadian Charter
of Rights, the Canadian House of Commons voted June 8 in support of
a resolution stating that "marriage is and should remain the union
of one man and one woman to the exclusion of all others."  The
motion was brought forward by the conservative (and largely anti-
gay) Reform Party, but had broad support across party lines,
including the governing Liberal Party, whose Justice Minister
supported the motion.  The resolution has no legal effect on the
court's decision, which did not involve marriage.  Canadian law has
in recent years extended to unmarried heterosexual couples many of
the rights and obligations of spouses, and this is the rubric under
which gay Canadians have been seeking legal status for same-sex
partnerships, rather than through attempts to achieve same-sex
marriage.  Press comment suggests that the Commons vote had more to
do with political symbolism than any change in government policy on
that score, as the governing party is continuing to identify
provisions of federal law that require adjustment to accord
recognition to same-sex partners.  _Reuters_, June 9; _Toronto
Sun_, June 9. =20

The Toronto _Globe and Mail_ reported June 1 that Wilson Hodder and
Paul Boulais became the first gay men in Canada to receive survivor
benefits under the Canada Pension Plan when the federal government
agreed to settle their claims shortly before an appeals tribunal
was to have heard their appeals.  Justice Minister Anne McLellan
conceded, in a two-page document, that denial of the survivor
benefits infringed their rights under Section 15 of the Charter of
Rights and Freedoms, which had been construed just ten days earlier
by Canada's Supreme Court as requiring a broad definition of
"spouse" to include same-sex partners under Ontario's Family Law
Act spousal support provisions.

The Court of Appeal for British Columbia, Canada, has ruled 2-1
that Section 163.1(4) of Canada's Criminal Code, which makes it an
offense to possess child pornography (defined as depiction of
sexual activity involving someone under the age of 18), violates
the Canadian Charter of Rights.  _R. v. Sharpe_, BCCA 1999 416,
CA025488 (June 30, 1999) (available online at:
<www.courts.gov.bc.ca/jdb-txt/ca/99/04/c99-0416.html>.  Justices
Southin and Rowles each wrote lengthy opinions supporting this
conclusion, while Chief Justice McEachern responded in a lengthy
dissent.  This decision will be particularly noteworthy to U.S.
readers because it differs from the conclusion reached by the U.S.
Supreme Court on the same issue in _Osborne v. Ohio_, 495 U.S. 103
(1990), where the Court accepted, over the dissent of Justice
William J. Brennan, the argument that the evils flowing from child
pornography outweighed the privacy rights of individuals regarding
possession of expressive materials in the privacy of their homes.=20
Justice Southin specifically cites Brennan's dissent as the more
persuasive view. =20

The New South Wales, Australia, Legislative Assembly has approved
amendments to the De Facto Relationships Act, which will now be
renamed the Property Relationships Act and expanded from opposite-
sex unmarried couples to embrace same-sex couples as well.  The
main point of the law is to authorize the courts to adjust property
issues upon termination of a non-marital relationship, and the law
will impact on such issues as intestacy, tax applications to
property transfers between partners, insurance contracts, trustee
property, protected estates, family relations and some pension
issues.  The law will also extend to some important non-property
rights, including medical treatment decisions, accident
compensation, appointment of guardians, and other non-economic
rights that had previously been reserved only for opposite-sex
couples.  We are indebted to attorney David Buchanan of Sydney,
Australia, for drawing our attention to this important legislation,
whose text can be found at
<www.parliament.nsw.gov.au/gi/billist9.html>.  The Assembly
finished work on the bill on June 1, and the governor assented to
its passage on June 7.

The British Labour Government announced in the House of Commons on
June 15 that after a review of immigration policy, it had decided
to reduce the period of cohabitation required for recognition of
same sex couples under British immigration policy from four to two
years, with a two year probationary period imposed after
recognition, so that four years will be required before permanent
"settlement" in the U.K. is recognized.  _Hansard House of Commons
Report_, June 16, 1999.

Several internet postings in recent weeks have mentioned a June 24
ruling by the Namibia High Court in Windhoek, ruling that a German
lesbian should be entitled to continued residence as a domestic
partner of a Namibian citizen.  The Office of Home Affairs has
twice refused German-born Liz Frank's applications to stay in the
country without citing any reasons.  Judge Harold Levy found that
since Namibia recognizes heterosexual common law relationships for
immigration purposes, and has a constitutional equality provision,
then same-sex relationships should be accorded equal treatment.=20
"Not only is this relationship recognized," wrote Levy, "but the
respondents should have taken it into account when considering
first the applicant's application for permanent residence and this
the respondent admits it did not do."  The government did not
immediately indicate whether it would appeal the ruling.  Although
the president of Namibia has spoken out in recent years against
homosexuality, the country's constitution and laws appear to be
very liberal on the subject.  A.S.L.

Professional Notes

The Centre for European Law at King's College, London, hosted a
conference July 1-3 on legal recognition of same-sex partnerships
that drew an extraordinary array of judges, legislators, legal
scholars and practitioners from the U.S., Canada, Europe, Asia,
Africa and South America.  The participants engaged in plenary
sessions and panel presentations reviewing the status of legal
recognition for same-sex couples in their respective countries, and
arguing about theories and strategies for achieving greater
recognition in the future.  There was considerable difference about
the desirability of seeking marriage as opposed to domestic
partnership or the forms of registered partnership offered in
Scandinavian countries.  The eminence of the participants
(including members of the highest judicial bodies of Canada,
Australia, and England) so startled some opponents of same-sex
marriage that some conservative types organized a joint letter
signed by 163 legal academics from around the world, criticizing
the conference for failing to include opponents of same-sex
marriage on the program and arguing that marriage should be
restricted to opposite-sex couples.  Of course, this statement was
drafted in ignorance of the hot theoretical debate among gay
scholars concerning the desirability of same-sex marriage, a debate
that surfaced in the very first panel on theoretical perspectives.=20
At its closing session, the conference participants approved a
statement in response to the criticisms, noting the diversity of
views presented.  Conference organizer Robert Wintemute, a faculty
member at King's College, hopes that edited versions of the
conference presentations can be collected in a book to be published
next year.  * * *  A highlight of the conference was the principal
dinner address delivered by Justice Michael Kirby of the High Court
of Australia.  Kirby is the only openly-gay member of a nation's
highest court.  An Australian newspaper, _Sun Herald_, ran a
lengthy article on July 18 with extended quotations from Kirby's
speech, in which he argued forcefully for legal recognition of
same-sex partnerships, noting his own 30-year partnership with
Johan van Vloten.

The _National Law Journal_ (June 7) published a feature article on
the all-gay law firm of Crockett & Chasen in Miami, Florida.  The
firm is headed by Paul Hampton Crockett, author of a book on
practical legal issues for lesbians and gay men.

The National Lesbian & Gay Law Association 1999 membership
directory is available for purchase for $10 from NLGLA, PO Box
180417, Boston MA 02118.  A.S.L.

AIDS & RELATED LEGAL NOTES

Supreme Court Ruling on ADA Disability Definition May Undercut
Protection for People With HIV/AIDS

In a trio of decisions issued June 22, the Supreme Court adopted a
literalistic construction of the definition provisions of the
Americans With Disabilities Act (ADA) that may make it difficult
for some people with HIV/AIDS to obtain protection from
discrimination under that statute, depending on how lower courts,
and ultimately the Supreme Court, apply its logic to HIV-related
discrimination claims.  _Sutton v. United Air Lines_, 1999 WL
407488; _Murphy v. United Parcel Service, Inc._, 1999 WL 407472;
_Albertsons, Inc. v. Kirkingburg_, 1999 WL 407456.

The Court was faced with conflicting decisions among the circuits
on the question whether, in determining if a person has a
"disability" within the meaning of 42 U.S.C. sec. 12102(20) of the
ADA, the availability or effect of mitigating measures to correct
or overcome the disabling condition should be taken into account in
deciding whether their physical or mental impairment `substantially
limits' a major life activity. =20

In _Sutton_, myopic twin sisters whose applications to be
commercial airline pilots had been rejected on the basis of their
poor eyesight were held by the 10th Circuit not to have a
disability because when they use corrective lenses their eyesight
is fully correctable.  (The airline insisted that pilots must have
a certain level of visual acuity without corrective lenses.) =20

In _Murphy_, an auto mechanic whose job required him to operate a
truck who was discharged because of his high blood pressure was
also held by the 10th Circuit not to have a disability because
available medication brings his blood pressure within normal range.=20


In _Kirkingburg_, a truckdriver who has monocular vision (i.e., is
essentially blind in one eye) and lost his job due to his inability
to meet Department of Transportation vision standards for
commercial drivers, was held by the 9th Circuit to have a
disability, even though his monocular vision has not prevented him
from engaging in any particular major life activity, on the ground
that monocular vision is "different" for vision experienced by
those with two functioning eyes.  The 9th Circuit also held that
the availability of a waiver from the vision standard by DOT
undermined the employer's defense based on that standard.

The Court affirmed the two 10th Circuit rulings, and reversed the
9th Circuit.

The lead opinion is _Sutton_, in which Justice Sandra Day O'Connor
wrote for the Court in an opinion joined by Chief Justice Rehnquist
and Justices Scalia, Kennedy, Souter, Thomas and Ginsburg, with
Justice Ginsburg adding a brief concurring opinion.  Justice John
Paul Stevens dissented, in an opinion joined by Justice Stephen
Breyer, who also produced a separate brief dissent.  Stevens
characterized the Court's construction of the disability provision
as "miserly," not in keeping with the remedial purpose of the Act.

Perhaps the most startling aspect of O'Connor's opinion is its
total rejection of legislative history in construing the technical
definitional language of the statute, and her outright rejection of
the EEOC's policy guidance on the central question, which itself
merely restates key language from the relevant House and Senate
committee reports on the ADA bill.  Both the House and Senate
Committees specifically stated, in identical language, that
"whether a person has a disability should be assessed without
regard to the availability of mitigating measures, such as
reasonable accommodations or auxiliary aids," and even used the
example of a diabetic or an epileptic who condition as medically
controllable as being covered by the statue.  Yet, O'Connor stated
"that respondent is correct that the approach adopted by the agency
guidelines -- that persons are to be evaluated in their
hypothetical uncorrected state -- is an impermissible
interpretation of the ADA."  (In other words, it is impermissible
for an agency to adopt the interpretation of the statute that the
relevant drafting committees of Congress stated was their intended
interpretation, if a majority of the Supreme Court, focusing solely
on the language of the statute, finds a different interpretation to
be indicated.)

The ADA has three alternative definitions of a disability.=20
Subsection A defines "disability" as "a physical or mental
impairment that substantially limits one or more of the major life
activities" of an individual.  (Subsection B, which the Court did
not discuss, protects individuals who have a "record" of a
disability.)  Subsection C, discussed below, protects persons
"regarded by others as having such a disability."  =20

As to Subsection A, says O'Connor, "Because the phrase
`substantially limits' appears in the Act in the present indicative
verb form, we think the language is properly read as requiring that
a person be presently -- not potentially or hypothetically --
substantially limited in order to demonstrate a disability.  A
`disability' exists only where an impairment `substantially limits'
a major life activity, not where it `might,' `could,' or `would' be
substantially limiting if mitigating measures were not taken."=20
Thus, if a person with poor eyesight can attain good eyesight by
using corrective lenses, they are no longer a person with a
disability, and if an employer refuses to hire them on the basis of
their poor eyesight, they cannot bring suit under the ADA.  While
they still have an impairment -- poor eyesight -- that impairment
does not `substantially limit' a major life activity because it is
correctable. =20

O'Connor supported this conclusion by reference to last year's
_Bragdon_ decision, in which the Court held back from considering
whether HIV-infection is a per se disability, instead taking the
approach that a case-by-case analysis of how an impairment affects
the individual plaintiff must be made.  Under such an approach,
said O'Connor, the Court must focus on the present circumstances of
the plaintiff, not the hypothetical circumstances were the
plaintiff to be deprived of assistive devices or medical treatment.

O'Connor further bolstered this conclusion by reference to the
statement in the preamble of the statute that "some 43,000,000
Americans have one or more physical or mental disabilities, and
this number is increasing as the population as a whole is growing
older."  The Court heard from counsel arguing these cases on behalf
of the employers that the 43 million figure must have meant
Congress did not intend to include people with correctable physical
problems, because the actual number of such people is two or three
times greater than 43 million.  (It is estimated that more than 100
million Americans wear corrective lenses, for example.)  O'Connor
cited research studies from several years prior to the ADA's
enactment that estimated the number of people with disabling
conditions severe enough to suffer functional limitations even when
using corrective devices such as hearing aids, corrective lenses or
prostheses as 37.3 million.  Of course, this interpretation of what
Congress intended would tend to reduce the ADA to a marginally
effective statute at best, since people who met the newly-rigorous
definition of having a disability would probably be qualified for
only a narrow range of jobs.

O'Connor indignantly rejected the dissent's argument that this
interpretation of the statute will always exclude from protection
people using prosthetic limbs or taking blood pressure or epilepsy
medication.  "The use of a corrective device does not, by itself,
relieve one's disability," she argued.  "Rather, one has a
disability under subsection A if, notwithstanding the use of a
corrective device, that individual is substantially limited in a
major life activity.  For example, individuals who use prosthetic
limbs or wheelchairs may be mobile and capable of functioning in
society but still be disabled because of a substantial limitation
on their ability to walk or run.  The same may be true of
individuals who take medicine to lessen the symptoms of an
impairment so that they can function but nevertheless remain
substantially limited.  Alternatively, one whose high blood
pressure is `cured' by medication may be regarded as disabled by a
covered entity, and thus disabled under subsection C of the
definition.  The use or nonuse of a corrective device does not
determine whether an individual is disabled; that determination
depends on whether the limitations an individual with an impairment
actually faces are in fact substantially limiting."

This argument might carry greater weight, had not O'Connor then
turned around to reject the Suttons' claim that they merited ADA
protection under Subsection C.  O'Connor stated that the "regarded
as" provision applies in two kinds of cases: where an employer
mistakenly believes that an applicant or employee has a
substantially limiting impairment, or where the employer mistakenly
believes that a non-limiting impairment which the applicant or
employee does have is substantially limiting.

The problem, said O'Connor, was that the Suttons argued that the
airline "mistakenly believes their physical impairments
substantially limit them in the major life activity of working,"
rather than arguing that the airline mistakenly believed that their
poor eyesight substantially limited their major life activity of
seeing.  O'Connor argued that the airline did not believe they were
substantially limited in the major life activity of working;
rather, the airline believed their poor eyesight in its uncorrected
state disqualified them from being commercial airline pilots.  In
order to substantially limit the major life activity of working,
held the Court, an impairment must prevent an individual from
engaging in "a class of employment," not just a particular job
category.  O'Connor, noting that the Suttons have obtained
certification as pilots from the F.A.A. and had flown for regional
airlines, contended that their eyesight does not prevent them from
flying airplanes or carrying on a wide variety of other
occupations, it merely disqualifies them, in the view of this
particular employer, from being commercial pilots for UAL, and thus
does not rise to the level of substantially limiting a major life
activity.  This reading, of course, appears to stand the purpose of
the third prong on its head, and is so illogical as to defy
coherent description.

The impact of the Court's decision is most dramatic, especially
regarding Subsection C (the "regarded as" part of the definition)
when viewed through the lense of its companion case: _Murphy v.
United Parcel Service_.  Murphy has high blood pressure, which when
tested exceeded, in UPS's opinion, the limits allowed by Department
of Transportation regulations for drivers operating trucks in
interstate commerce, under a regulation requiring that a driver
have "no current clinical diagnosis of high blood pressure likely
to interfere with his/her ability to operate a commercial vehicle
safely."  When medicated, the district court found, Murphy "is
inhibited only in lifting heavy objects but otherwise functions
normally," so the district court held he was not disabled under the
ADA, and was not "regarded as" having a disability, because UPS
fired him based on its belief he was not certifiable as qualified
under the DOT regulation, not based on any mistaken belief it had
on the actual scope of his impairment. =20

Murphy's cert petition challenged the 10th Circuit's conclusion
that his condition should be evaluated for purposes of the
Subsection A definition in its medicated state.  Airily disposing
of this part of his appeal, O'Connor, again writing for the Court
(Stevens and Breyer dissenting), simply stated that _Sutton_
decided the question.  "Because the question whether petitioner is
disabled when taking medication is not before us, we have no
occasion here to consider whether petitioner is `disabled' due to
limitations that persist despite his medication or the negative
side effects of his medication."

Turning to the Subsection C argument, O'Connor went to great
lengths to downplay the EEOC regulations issued to explicate the
disability definition.  Indeed, in _Sutton_ she even suggested that
the EEOC, which was delegated by Congress the task of issuing
regulations to implement Title I of the ADA, did not have any
authority to issue regulations on the disability definition,
because it does not appear in Title I, but is rather in a
preliminary section of the ADA containing definitions for terms
used throughout all the titles of the Act. =20

Murphy had argued that UPS regarded him as substantially limited by
his hypertension in the major life activity of "working," which is
one of the activities identified by the EEOC in its regulation.=20
O'Connor again raised the narrow concept adopted in _Sutton_, and
pointed out that UPS fired Murphy based on its view that he
couldn't meet DOT requirements for drivers, but that his other
abilities as a mechanic were not in doubt, as indicated by the fact
that after he was fired he quickly obtained a job as a mechanic
with another employer.  "The evidence that petitioner is regarded
as unable to meet the DOT regulations is not sufficient to create
a genuine issue of material fact as to whether petitioner is
regarded as unable to perform a class of jobs utilizing his
skills," wrote O'Connor.  "At most, petitioner has shown that he is
regarded as unable to perform the job of mechanic only when that
job requires driving a commercial motor vehicle -- a specific type
of vehicle used on a highway in interstate commerce." =20

In other words, whether an ADA plaintiff is being evaluated under
Subsection A or Subsection C, the issue apparently boils down to
whether whatever medical condition the plaintiff has, in light of
available medications or assistive devices, substantially limits
the plaintiff from performing _any_ job for which the plaintiff has
requisite skills, and not whether the reason why the plaintiff was
fired is because the plaintiff has a particular impairment. =20

Justice Stevens' dissent in _Sutton_ sharply disputes the Court's
interpretation of the definitional provision.  He argued that "if
we apply customary tools of statutory construction, it is quite
clear that the threshold question whether an individual is
`disabled' within the meaning of the Act -- and, therefore, is
entitled to the basic assurances that the Act affords -- focuses on
her past or present physical condition without regard to mitigation
that has resulted from rehabilitation, self-improvement, prosthetic
devices, or medication.  One might reasonably argue that the
general rule should not apply to an impairment that merely requires
a nearsighted person to wear glasses.  But I believe that, in order
to be faithful to the remedial purpose of the Act, we should give
it a generous, rather than a miserly, construction."

Stevens argued that the 3-prong construction of the definition made
makes it "pellucidly clear" that Congress intended to cover people
with serious albeit remediable disabilities, using the example of
the war veteran with a prosthetic limb.  "In my view, when an
employer refuses to hire the individual `because of' his
prosthesis, and the prosthesis in no way affects his ability to do
the job, that employer has unquestionably discriminated against the
individual in violation of the Act."  Rejecting O'Connor's focus on
the present tense nature of the Subsection A definition using the
example of a person with a hearing aid, Stevens pointed out that
Subsection B, covering those with a "record" of a disability,
"plainly covers a person who previously had a serious hearing
impairment that has since been completely cured" by the use of the
hearing aid.  (Under O'Connor's view, a person with impaired
hearing who used a hearing aid could only prevail under the ADA by
showing that she continued to be substantially limited in a major
life activity even though her hearing was corrected, and O'Connor
clearly would not allow her to pursue the "bootstrapping" argument
that she was impaired in the major life activity of "working" when
her employer fired her because of her hearing aid!) =20

Stevens quoted chapter and verse from the legislative history to
show that the Court's interpretation was exactly opposite to what
Congress expressly intended, as spelled out in the Senate and House
committee reports, which were then faithfully taken up and
incorporated in the EEOC regulations and guidelines.  Stevens
pointed out that eight of the nine circuit courts to have
considered the question had adopted the same approach as the EEOC,
with only the 10th having diverged along the course now approved by
the Court.  He rejected the argument based on the 43 million people
figure contained in the statutory findings, pointing out that the
Court has frequently interpreted remedial statutes to apply to
broader classes of people than Congress had presumably anticipated,
pointing to last year's decision on same-sex sexual harassment,
_Oncale v. Sundowner Offshore Services_, 523 U.S. 75 (1998).  (When
Congress was considering passage of Title VII in 1964, there was no
thought that sexual harassment would be covered, much less same-sex
harassment.)  And he emphasized that the question before the Court
was not whether the Suttons could be commercial pilots, which would
ultimately require an inquiry into whether they are qualified for
the job in light of qualifications dictated by business necessity,
but rather whether they met the threshold requirement of having a
disability within the meaning of the ADA. =20
In his brief dissent, after stating agreement with Justice Stevens'
arguments, Justice Breyer addressed the Court's curious contention
that the EEOC was not authorized by Congress to issue regulations
defining "disability."  Breyer pointed out that as that term is
used in Title I, the EEOC "might elaborate through regulations the
meaning of `disability' in this last-mentioned provision, if
elaboration is needed in order to `carry out' the substantive
provisions of `this subchapter.'"

The opinion in _Kirkingburg_, by Justice Souter for a unanimous
Court (with Justices Stevens and Breyer holding back from joining
in one section in which Souter addresses the disability holding),
focuses primarily on whether an employer could rely on a
Transportation Department regulation to deny employment to a driver
with monocular vision, and the Court had little trouble in
producing unanimous agreement on that point.  In addressing the
disability issue, Souter found that the 9th Circuit had too easily
reached the conclusion that somebody who is virtually blind in one
eye has a "disability" within the meaning of the Act. =20

The 9th Circuit had concluded that because somebody who sees with
only one eye sees "differently" from everybody else, they are
necessarily substantially limited in the major life activity of
seeing.  But in line with the "miserly" approach taken by the Court
in _Sutton_, Souter contended that under the ADA one could not jump
to such conclusions; rather, it should be determined whether
Kirkingburg was, as an individual, substantially limited in any of
his major life activities.  The category of monocular persons, "as
we understand it, may embrace a group whose members vary by the
degree of visual acuity in the weaker eye, the age at which they
suffered their vision loss, the extent of their compensating
adjustments in visual techniques, and the ultimate scope of the
restrictions on their visual abilities.  These variables are not
the stuff of a per se rule."  While Souter commented that it was
likely most people with this condition would be found to have a
disability, it was not a foregone conclusion and should be
determined on a case-by-case basis.

The potential impact of these three decisions on ADA protection for
people with HIV/AIDS is difficult to predict, but it is likely that
between their holdings and their plentiful dicta they will pose
additional stumbling blocks to HIV+ plaintiffs.  All three
decisions emphasize (and invoke _Bragdon v. Abbott_ for) the
proposition that each ADA plaintiff must be considered as an
individual in determining whether the disability definition is met,
including the key question of whether their particular physical
impairment substantially limits their own major life activities.=20
This keeps open one of the major loose ends of the _Bragdon_ case.=20


In _Bragdon_, the Court found that Sydney Abbott qualified as
disabled because of the impact of her asymptomatic HIV-infection on
her ability to have a child, and refrained from deciding whether
HIV infection could be considered a per se disability under the
ADA.  This leaves open the question whether a post-menopausal
asymptomatic HIV+ woman could bring a discrimination claim under
the ADA, or whether she would be able to come up with another way
in which her HIV infection substantially limits a major life
activity, even though it is being controlled through currently
available medications.  (And what of the HIV+ gay man who can
provide no credible evidence that he has ever contemplated engaging
in reproductive activity, such as the plaintiff sneeringly denied
ADA standing by the 4th Circuit in _Runnebaum v. Nationsbank of
Maryland_, 123 F.3d 156 (4th Cir. 1997)?)  In _Kirkingburg,_
Justice Souter made the only substantive reference to HIV in this
trio of opinions, stating: "While some impairments may invariably
cause a substantial limitation of a major life activity, cf.
Bragdon, supra, at 642 (declining to address whether HIV infection
is a per se disability), we cannot say that monocularity does."

Perhaps it is time for Congress to amend the ADA to make clear that
certain conditions are meant to be covered as disabilities, by
taking the disputed regulatory language from its own prior
committee reports and placing it in the text of the statute, or
even by adding a non-exhaustive list of presumptively covered
conditions, such as HIV infection, hypertension, diabetes and
cancer.  In her article _Major Litigation Activities Regarding
Major Life Activities: The Failure of the "Disability" Definition
in the Americans With Disabilities Act_, 77 N.C. L. Rev. 1405
(April 1999) (noted below), Lisa Eichhorn suggests that the ADA
should be amended to do away with the incredibly litigation-prone
definition of disability and replace it with something functional
that will achieve the remedial purposes of the Act.  In light of
this trio of decisions, her article is prescient indeed.  The
situation calls to mind the late 1980's, when a string of Supreme
Court decision undermining the effectiveness of Title VII of the
Civil Rights Act provoked Congress into passing a package of
amendments, expressly overturning several of the Court's decisions.=20
Deja vu?  A.S.L.

Seventh Circuit Holds That HIV Insurance Caps Do Not Violate the
ADA

In _Doe v. Mutual of Omaha Insurance Company_, 1999 WL 353014 (June
2), a panel of the U.S. Court of Appeals for the Seventh Circuit
held 2-1 that insurance caps on benefits for AIDS-related
conditions that were significantly lower than the caps for other=20
health conditions did not violate the public accommodations
provision of the Americans with Disabilities Act (ADA), Title III.
The Seventh Circuit's holding, in an opinion by Chief Judge Richard
Posner, overturned a federal district court's ruling striking down
the drastic restrictions on coverage, and did so despite voluminous
evidence showing that there was no actuarial basis for such
discriminatory caps.

The case was filed by Lambda Legal Defense and Education Fund and
the AIDS Legal Council of Chicago (ALCC) on behalf of two HIV+ men
charging that the company violated the ADA and the Illinois
insurance law and endangered lives by severely limiting HIV-related
health care coverage. One policy limits lifetime benefits for AIDS
or AIDS-related conditions (ARC) to $25,000, and the other limits
such benefits to $100,000, while the limit for other conditions in
both policies is $1 million, a limit that can be reinstated to
allow for an additional $1 million in coverage if the policyholder
made no new claims after two years.

In December 1998, District Judge Suzanne B. Conlon entered final
judgment against the company based upon stipulated facts and
evidence submitted by the parties prior to trial, on the ground
that the policies violated the ADA as a matter of law.  Expert
testimony submitted by plaintiffs indicated that the insurance=20
company, Mutual of Omaha, knew when it initiated the coverage
restrictions that the cost of treating HIV infection and AIDS was
similar to or less than the cost of treating other medical
conditions, and that the coverage restrictions were not based on
sound actuarial principles. Mutual of Omaha had moved to dismiss
the complaint, arguing that Title III of the ADA did not reach the
terms of insurance policies. The district judge rejected this
argument and ordered the company to provide actuarial-based
justifications for the HIV/AIDS cap. Following the district court
ruling, Mutual of Omaha filed an appeal on the question of whether
the ADA applies to the content of health insurance coverage.

Judge Posner began his analysis by acknowledging that under sec.
302(a) of Title III, a facility that is open to the public "cannot
exclude disabled persons from entering the facility and, once in,
from using the facility in the same way that the nondisabled do."=20
Accordingly, Posner continued, it would violate the Act to refuse
to sell an insurance policy to a person with AIDS. The court
concluded, however, that the caps did not violate Title III. Mutual
of Omaha did not refuse to sell the plaintiffs insurance, and
"[t]he common sense of the statute is that the content of the goods
or services offered by a place  of public accommodation is not
regulated [by Title III]."

Analogizing, Posner explained: "A camera store may not refuse to
sell cameras to a disabled person, but it is not required to stock
cameras specially designed for such persons."  Similarly, "[a]
furniture store that does not stock wheelchairs knows that it is
making its services less valuable to disabled than to nondisabled
people, but the Americans with Disabilities Act has not been
understood to require furniture stores to stock wheelchairs."

The court next looked to the safe harbor provision of the ADA, sec.
501(c)(1), which provides that Title III (the public accommodations
provision) "shall not be construed to prohibit or restrict an
insurer . . . from underwriting risks, classifying risks, or
administering such risks that are based on or not inconsistent with
State law," unless the prohibition or restriction is "a subterfuge
to evade the purposes" of that Title. The plaintiffs argued that
this safe harbor provision, sec. 501(c)(1), would have no function
if sec. 302(a) of Title III did not regulate the content of
insurance policies.

An insurance company would not be within the safe harbor of sec.
501(c)(1), and would violate Title III, the court explained, if it
"refus[ed] to sell a health-insurance policy at all to a person
with AIDS, or charg[ed] him a higher price for such a policy, or
attach[ed] a condition obviously designed to deter people with AIDS
from buying the policy (such as refusing to cover such a person for
a broken leg)."  These actions, the court continued, were=20
distinguishable from the actions here, "offering insurance policies
that contain caps for various diseases some of which may also be
disabilities within the meaning of the Americans with Disabilities
Act." In so holding, the court rejected the interpretation of the
ADA proffered by the Department of Justice, the department in
charge of enforcing the legislation, despite the doctrinal
_Chevron_ deference to agency interpretations.

Furthermore, the court explained that plaintiffs' suit must fail in
any case because it was barred by the McCarran-Ferguson Act, which
"forbids construing a federal statute to `impair any law enacted by
any State for the purpose of regulating the business of insurance
. . . unless such Act specifically relates to the business of
insurance.' 15 U.S.C. sec. 1012(b)."  The panel noted that the ADA
does prohibit an insurance company from  refusing to sell insurance
to a disabled person because of their disability, and that this
prohibition is not barred by the McCarran-Ferguson Act.=20

But the court distinguished this prohibition from the actions in
this case.  "It is one thing to say that an insurance company may
not refuse to deal with disabled persons; the prohibition of such
refusals can probably be administered with relatively little
interference with state insurance regulation . . . and anyway this
may be a prohibition expressly imposed by federal law because
encompassed within the blanket prohibition of section=20
302(a) of the Americans with Disabilities Act, and so outside the
scope of the McCarran-Ferguson Act. It is another thing to require
federal courts to determine whether limitations on coverage are
actuarially sound and consistent with state law."

The majority tried to temper its opinion by explaining that it did
not "leave the plaintiffs" remediless as they may be able to obtain
relief under state law.

Circuit Judge Evans dissented. He began by stating that he thought
Judge Posner's analogy was inaccurate. "[W]e are not being asked to
force a restaurant to alter its menu to accommodate disabled
diners; we are being asked to stop a restaurant that is offering to
its nondisabled diners a menu containing a variety of entrees while
offering a menu with only limited selections to its disabled
patrons."

"The parties stipulated that the very same affliction (e.g.,
pneumonia) may be both AIDS-related and not AIDS-related and that,
in such cases, coverage depends solely on whether the patient has
AIDS. In my view that is more than enough to trigger an ADA
violation."

Judge Evans also disagreed with Judge Posner's McCarran-Ferguson
Act analysis.  Evans pointed out that Posner conceded that the Act
would be violated if the insurance company was refusing to deal
with persons on the basis of their disability. And, in light of his
own analysis of the insurance policies in question, Judge Evans
argued that, "[c]onsistent with McCarran-Ferguson we can -- and we
should -- decide exactly what the majority seemed to think is
permissible: whether an insurer may refuse to deal with disabled
persons on the same terms as nondisabled persons."

In response to the 7th Circuit's decision, Heather C. Sawyer, staff
attorney for Lambda's Midwest Regional Office who argued the case
before the 7th Circuit in March, said, "Insurance policies place
all sorts of across-the-board limitations on coverage to reduce
costs. However, singling out a disability and refusing to cover
expenses from it is unprecedented.  Discrimination is the only
possible explanation for such cruel limits."  _Courtney Joslin_

11th Circuit Upholds Requirement That Police Officers Disclose
Their HIV Status Pursuant to TB Testing Program

The U.S. Court of Appeals for the 11th Circuit ruled that the
Americans With Disabilities Act does not prohibit an employer from
inquiring into an employee's HIV status if the inquiry is
rationally related to a legitimate business purpose in _Watson v.
City of Miami Beach_, 177 F.3d 932, decided on May 28.

William Watson is a police officer for the City of Miami Beach.  In
1995, the police department was conducting a mandatory,
department-wide tuberculosis testing program.  The program came
about because officers in the Miami Beach police department have
extensive contact with people at high risk for tuberculosis.  As
part of the mandatory tuberculosis examination, doctors at Mount
Sinai Hospital required the police officers to disclose their HIV
status.  People with HIV are diagnosed and treated differently for
tuberculosis than patients who have not tested positive for HIV.

Watson refused to disclose his HIV status and thereafter was
relieved from duty with pay pending a fitness-for-duty examination.=20
One week later, Watson was restored to active status and it was
recommended that he receive stress management counseling.

Watson sued the City of Miami Beach, alleging discrimination under
the Americans With Disabilities Act.  Watson first argued that he
was relieved from duty pending the fitness for duty examination in
violation of the ADA.  The court found, however, that Watson failed
to prove the threshold element of such a claim, to wit, that he was
disabled.  Watson argued that since other officers in the police
department regarded him as paranoid, disgruntled, oppositional, and
difficult, this was evidence that Watson had a mental impairment
entitling him to relief under the ADA.  The court rejected this
argument.

Watson's second argument was that the tuberculosis and fitness-for-
duty examinations were prohibited medical inquiries under the ADA.=20
The court, however, concluded that both the fitness for duty
examination and the tuberculosis examination were "job-related and
consistent with business necessity."  The court found that the
tuberculosis examination required by the City addressed unrefuted
health concerns regarding officer safety.  In addition, the court
found it was necessary to disclose one's HIV status to properly
diagnose and treat tuberculosis.  _Todd V. Lamb_

HIV+ Inmate's Claim of Inadequate Medical Care Rejected

On May 28, the U.S. Court of Appeals for the Second Circuit upheld
a summary judgment against an HIV+ inmate, finding that Wilfredo
Polanco did not state an 8th Amendment claim arising out of
inadequate medical care.  _Polanco v. Dworzack_, 1999 WL 357856
(unpublished disposition).  Polanco claimed that the defendant
doctors, nurses, and administrators at the Attica Correctional
Facility wrongfully refused to provide him with the brand-name
dietary supplement "Ensure," thereby causing him to suffer weight
loss and a dangerous drop in his T-Cell count, in deliberate
indifference to his medical needs, thereby violating  his right to
be free from cruel and unusual punishment.

Noting that in order to establish an 8th Amendment claim arising
out of inadequate medical care, a prisoner must prove "deliberate
indifference to [his] serious medical needs," the court focused on
uncontested affidavits establishing that Polanco was given an
"extensive medical examination" when he arrived at Attica. The exam
revealed that Polanco was HIV+ and had been "refusing to take
prescribed protocol medications for his HIV+ (AIDS)." Despite
Polanco's requests, Ensure was not prescribed because the medical
staff observed, and his records indicate that, contrary to his
allegations, he maintained a steady weight during his stay at
Attica (actually gaining weight at one point). The staff concluded
that the supplement was not medically indicated but authorized an
additional snack each evening, which Polanco often refused.

Finding no evidence "that would call into question the propriety of
the treatment he received, let alone suggest that such treatment
amounted to deliberate indifference," the court held that no
reasonable juror could conclude that Polanco suffered a civil
rights violation, but rather that Polanco's "claim amounts to a
difference of opinion on matters of medical judgment."  _Mark
Major_

Michigan Appeals Court Reluctantly Revives Suit Challenging Prison
Policies

Expressing its disagreement with rulings by the Michigan Supreme
Court and the U.S. Supreme Court allowing prisoners to bring claims
under civil rights statutes, the Michigan Court of Appeals
nonetheless adhered to its obligation to follow precedent and
revived civil rights claims brought by state prisoners with HIV-
infection who were excluded from certain programs on a categorical
basis under state policies.  _Doe v. Michigan Department of
Corrections_, 1999 WL 452120 (June 25).  The court also reversed
the trial court=FEs negative decision on the plaintiffs=FE Equal
Protection claims, finding that the court had applied the wrong
legal test for evaluating their claims.

The plaintiffs alleged that the defendant=FEs policy directive of
1989, categorically excluding HIV+ prisoners from placement in
community residential programs, camps, and farms, and its revised
directive of 1990, relaxing the exclusion somewhat but posing
barriers in individual cases that were not posed to HIV- prisoners,
violated the Michigan Handicappers=FE Civil Rights Act (HCRA) and the
Equal Protection Clause.  Several months before trial, the
plaintiffs sought to amend their complaint by adding claims under
the federal Rehabilitation Act, Section 504, and the Americans With
Disabilities Act, but the trial judge denied their motion to amend.=20
The trial judge found that the HCRA was not available to prisoners,
and that the policies survived rational basis review under the 14th
amendment.

Writing for the court of appeals, Judge Griffin explained at length
why the court thought that a recent decision by the Michigan
Supreme Court, _Neal v. Dep=FEt of Corrections_, 583 N.W.2d 249
(Mich. 1998), allowing a prisoner=FEs complaint under the Michigan
Civil Rights Act to go forward, was poorly reasoned, and why the
dissent in that case was correct.  Similarly, Griffin criticized
the U.S. Supreme Court=FEs decision in _Pennsylvania Dep=FEt of
Corrections v. Yeskey_, 524 U.S. 206 (1998), which held that
prisoners could bring claims under the Americans With Disabilities
Act (ADA).  Griffin noted that the HCRA was similar in intent and
purpose to the state=FEs Civil Rights Act, and thus if it were to
follow precedent, the court should decide the question of first
impression (i.e., whether the HCRA applies to prisons) in a manner
logically consistent with the _Neal_ and _Yeskey_ decisions.  "We
apply the holding of [_Neal_] only because we are required to do
so. . .  we reluctantly rule that the trial court erred in finding
that plaintiffs had failed to state a claim for relief under the
HCRA."  The court also found that it was an abuse of discretion for
the trial judge to deny the motion to amend to add federal
Rehabilitation Act and ADA claims, especially as the U.S. Supreme
Court has found that these statutes do apply to prisons.

Turning to the constitutional claim, the court found that the trial
judge erred in using the rational basis test to evaluate whether
the prison policies violated the Equal Protection Clause.  In the
context of prisons, wrote Griffin, "a traditional equal protection
analysis is not utilized.  Rather, `when a prison regulation
impinges on inmates=FE constitutional rights, the regulation is valid
if it is reasonably related to legitimate penological interests,"
quoting _Turner v. Safley_, 482 U.S. 78 (1987).  _Turner_ imposes
a four-prong test that differs significantly from traditional
rational basis review.  Consequently, since the trial judge used
the wrong legal analysis to evaluate the plaintiffs=FE claims, a
remand for reconsideration of those claims was required.  A.S.L.

Arkansas Appeals Court Rejects Challenge to Subpoena of HIV-Related
Medical Records

The Arkansas Court of Appeals found that state laws specifically
authorize a prosecutor to subpoena HIV-related medical records if
they are needed to investigate charges that the subject of the
records is exposing others to HIV infection.  _Weaver v. State of
Arkansas_, 990 S.W.2d 572 (Ark.App., May 12, 1999).

Pierre Weaver was charged with three counts of exposing another
person to HIV, in violation of Ark.Code Ann. sec. 5-14-123.  He was
convicted on one count and sentenced to 30 years in prison.  While
trial was pending on the other two counts, he sought to suppress
introduction of his medical records, claiming that they had been
inappropriately obtained by the prosecutor using a subpoena, in
violation of Weaver's 4th Amendment rights.  Weaver claimed that
only a search warrant issued on probable cause could overcome his
right of privacy regarding his medical records.  The trial court
overruled his suppression motion, and he was convicted and
sentenced on the other two counts, 30 years for each count, to be
served concurrently with the sentence on the first count.  Weaver
appealed.

In an opinion by Judge Sam Bird, the court ruled against Weaver
without discussing any of his constitutional claims.  Rather, the
court quoted in full the state's HIV confidentiality law, which
provides that "any prosecuting attorney of this state may subpoena
such information as may be necessary to enforce the provisions of
this section and 5-14-23. . ., provided that any information
acquired pursuant to such subpoena shall not be disclosed except to
the courts to enforce the provisions of this section," and
concluded that because the prosecutor was investigating a crime, a
search warrant was not needed and the trial court did not err in
denying Weaver's motion to suppress. =20

The court entirely overlooked the restrictive wording at the end of
the statute, which says that the information acquired by subpoena
may only be disclosed to the courts to enforce "the provisions of
this section" (i.e., the section guaranteeing HIV confidentiality,
NOT the other statute on exposing others to HIV).  Perhaps an
appeal to the Arkansas Supreme Court is in order, although we don't
hold out much hope of Weaver prevailing. A.S.L.

Trial Needed on AIDS Fear Claim Arising from Confrontation With
Escaped HIV+ Prisoner

The Louisiana Court of Appeals, 3rd Circuit, upheld a trial court's
refusal to grant summary judgment for the defendant, the state
prison system, on an HIV-exposure damage claim arising from a
confrontation between the plaintiff and an escaped HIV+ prisoner.=20
_Seaman v. Howard_, 1999 WL 346631 (June 2).  James Seaman alleges
that he was exposed to the blood of Larry Jeansonne, who had
escaped from an off-site work assignment while incarcerated at the
Louisiana Department of Public Safety and Corrections' Vernon
Parish Correctional Facility.  Judge Thibodeaux, writing for the
court, held that there were material issues of fact in dispute
regarding the duty of the DPSC to convey information to local
prison officials regarding the prisoner's history of escape, so the
case was not appropriate for disposition by summary judgment.

In August 1993, Larry Jeansonne was convicted of cocaine possession
and sentenced to the custody of the DPSC.  He was originally
sentenced to the East Baton Rouge Parish Correctional Facility, but
in January, 1994 was transferred to the Vernon Parish Correctional
Facility.  Jeansonne was permitted to work outside of the facility
to perform maintenance work on vehicles owned by the Vernon Parish
Policy Jury soon after his arrival.  On February 23, 1994,
Jeansonne attempted to escape by stealing a car from the repair
shop, but ran the car into the front yard of James Seaman, a former
police office.  In his attempt to restrain Jeansonne, Seaman
received open wounds which were smeared with Jeansonne's blood.=20
When Jeansonne was later apprehended, a blood test was taken,
revealing that Jeansonne was HIV+. =20

Seaman then sued the DPSC, "seeking damages for his exposure to the
HIV virus and for his fear of contracting AIDS."  Specifically,
Seaman alleged that the DPSC had a duty to provide Vernon Parish
Warden Dewey Creasy with Jeansonne's medical and criminal history,
specifically regarding his HIV-status and prior escape record. The
DPSC filed a motion for summary judgment, which the trial court
denied.  The Court of Appeal originally denied DPSC's appeal, but
heard the case after the Louisiana Supreme Court granted the writ
application and remanded the case for briefing.

The Court of Appeal began its analysis by noting that "the
determination of whether a particular duty should be imposed on a
particular governmental agency is a policy question that hinges on
the facts and circumstances of each case."  While the question
regarding the existence of a duty is a legal one, the inquiry often
hinges on specific questions of fact that must be resolved before
a case may be disposed of through summary judgment.=20

Specifically, the court noted that there "are material factual
issues in dispute regarding the availability of Jeansonne's
criminal history of escape."  Prison officials and DPSC officials
disagreed over whether the information had been conveyed at the
time Jeansonne was transferred to Vernon Parish, and there was a
further question regarding the availability of this information
through a computer database.

The court held that the trial court properly denied the motion for
summary judgment because these factual disputes had not been
resolved. =20

The court distinguished _Harper v. State_, 679 So. 1321 (1996), a
case where the DPSC was found to be immune from liability when a
prisoner with a history of parole violations injured another
prisoner during an escape attempt.  DPSC was there found not to be
liable because the agency "did not have the power to control what
a sheriff does with prisoners in his custody."  Judge Thibodeaux
pointed out, however, that the undisclosed information in that case
concerned the prisoner's status as a parole violator, "a fact known
to the sheriff's office."  Furthermore, the sheriff had taken the
parole violation into account when assigning the prisoner in Harper
to an off-site work facility, whereas the officials in Vernon
Parish had not been able to make their decision with full
information. =20

With regard to the duty to disclose medical history, Wardon Creasy
insisted that he would not have allowed Jeansonne to work off-site
had he known of the prisoner's HIV status.  Jeansonne testified
that he had had blood taken prior to his transfer, but Seaman
alleged that the results of the blood test were not disclosed at
the time of the prisoner's transfer.  The court refused to decide
the question regarding the DPSC's duty to disclose Jeansonne's HIV
status, finding the presence of a factual dispute with regard to
the disclosure of past escape attempts sufficient to uphold the
trial court's denial of summary judgment: "We pretermit
consideration of whether the DPSC had a duty to monitor, discover,
and treat Jeansonne's HIV positive status and to communicate this
information to the Vernon Parish Correctional Facility."  _Sharon
McGowan_

4th Circuit Joins Other Circuits in Holding Title I of ADA Does Not
Mandate Equal Benefits for All Disabilities

Lining up with decisions from the 3rd, 6th and 7th Circuits, the
U.S. Court of Appeals for the 4th Circuit ruled June 16 in _Lewis
v. KMart Corp._, 1999 WL 394280, that a private-sector employer did
not violate the Americans with Disabilities Act when it provided a
lesser level of benefits for mental disabilities than for physical
disabilities under its employee benefits plan.  Writing for the
court, Circuit Judge Hamilton observed that the 4th Circuit had
previously ruled in _Rogers v. DHEC_, 1999 WL 193895 (April 8),
that a public employer had not violated Title II of the ADA by
providing lesser benefits for mental disabilities.  The court saw
no determinative distinction between public employment under Title
II and private employment under Title I of the statute.  Taking
essentially the same view that the 7th Circuit took with respect to
ADA Title III in _Doe v. Mutual of Omaha_, described above, the
court essentially held that so long as people with disabilities are
not totally excluded from obtaining insurance coverage, the non-
discrimination requirement of the ADA is satisfied so long as the
same package of benefits is offered to everybody, regardless of
disability.  A.S.L.

AIDS & Related Litigation Notes

The U.S. Court of Appeals for Veterans Claims ruled June 14 that
the surviving spouse of a veteran who died from AIDS was not
entitled to death pension benefits.  _Hernandez v. West_, 1999 WL
446872.  Under the relevant statute, a surviving spouse of a
military veteran is entitled to death benefits if the veteran dies
from service-related causes.  In this case, the veteran served from
May 1968 to April 1970, and died from AIDS in 1992.  The veteran's
AIDS was apparently acquired from intravenous drug abuse, sometime
after his discharge from military service.  Although he had been
diagnosed with a variety of other medical conditions, some of which
might have been service-related, the court upheld a determination
that as the actual cause of death was not service-related, no death
benefits were payable.

The U.S. Supreme Court ruled on June 22 in _Olmstead v. L.C._, 1999
WL 407380, that under Title II (public services) of the ADA, a
state had discriminated against two mentally retarded women by
requiring them to remain in a more restricted service environment
than was required by their mental conditions.  State health
authorities found that the women should be placed in community-
based care, but for financial reasons the state kept them confined
in a psychiatric hospital unit.  Writing for the Court, Justice
Ruth Bader Ginsburg found that this is discriminatory.  However,
disagreeing with the 11th Circuit's view of the state's burden in
defending its actions, the Court found that the state could present
evidence of its overall resource allocation situation in justifying
the decision to continue housing the women in the psychiatric unit.

The U.S. Court of Appeals for the 11th Circuit threw out an HIV-
discrimination claim as untimely filed in _Zillyette v. Capital One
Financial Corp._, No. 98-3404 (7/7/99) (see _BNA Daily Labor
Report_ No. 137, 7/19/99).  Zillyette was discharged shortly after
informing his employer that he had been diagnosed HIV+ and would
need certain schedule changes to accommodate his condition.  He
filed ADA discrimination charges with the EEOC, and was mailed a
right to sue letter by certified mail, which the Postal Service
unsuccessfully attempted to deliver on September 5, 1996.  However,
Zillyette did not respond to the to the notice left at his home,
and did not ultimately pick up the letter from the post office
until after a second unsuccessful attempt was made to deliver the
letter on September 10.  Zillyette filed his lawsuit pro se on Dec.
12, 1996.  The court accepted the argument that the filing was more
than 90 days after receipt of the right to sue letter, taking the
position that such a letter is received when the Postal Service
leaves its notice, identifying the sender, at the recipient's
address.

The Arizona Supreme Court ruled June 18 that a restrictive covenant
in an employment contract that might have prevented an AIDS
specialist from continuing to practice within a 5-mile radius for
3 years after leaving a group practice was unenforceable as a
matter of public policy.  _Valley Medical Specialists v. Farber_,
1999 WL 398614. The court was troubled at the idea that a doctor's
patients could be made to suffer if he decided to leave his
practice affiliation. =20

The Louisiana Supreme Court reinstated a jury verdict in favor of
defendants in _Peterson v. Gibraltar Savings and Loan_, 1999 WL
330387 (May 18), in which the court of appeal had granted a motion
for judgment NOV by plaintiff Fred Peterson, who claimed he was
sodomized and infected with HIV by intruders in a parking garage in
Metairie, Louisiana, in May 1988.  Peterson learned he was HIV+
after donating blood in 1992.  He claims that the only possible
source of his HIV infection was the sexual assault he suffered in
1988, and argued that the negligent security operation of the
parking lot operator was the proximate cause of his injury.  The
jury ruled against him and the trial judge refused to set aside the
verdict.  Peterson's appeal was successful at the court of appeal
level, where the court reversed the denial of NOV, found the
defendants 80% responsible for Peterson's injury, and awarded him
$4,364,333 plus interest, court costs, and witness fees, and denied
the defendants' motions for rehearing.  The Supreme Court was
sharply split, 4-3, in deciding to reverse and reinstate the jury
verdict, as there was evidence that the defendants had concealed
the extent of their insurance coverage, which may have affected the
course of proceedings below.

The Missouri Court of Appeals, E.D., Div. 1, has reversed and
remanded for new trial in _Mrs. M.C. and Mr. B.C. v. Yeargin_, 1999
WL 507122 (July 20), in which a woman who was a guest at a Marriott
Hotel in St. Louis had won a multi-million dollar negligence
verdict after being assaulted (including anal sodomy) in her hotel
room by an HIV+ man in 1994.  Among her claims was a fear of AIDS
claim.  The evidence showed that when the police apprehended her
assailant almost two months after the incident and informed her
that the assailant was HIV+, she and her husband decided to
terminate her recently-discovered pregnancy, having been advised
that there was a 40% chance that if she had become infected, she
would pass the infection to her child in utero or at birth.  The
appeals court ordered a new trial because of problems with the
trial court's charge to the jury.

Juan Chavez, who confessed to murdering five middle-aged gay men
because he was angry that homosexuals were spreading AIDS, has been
sentence to life in prison by Los Angeles, CA, Superior Court Judge
Jacqueline Connor on June 21.  The sentence is imposed without
possibility of parole.  Prosecutors said that his story was
pretextual; that he was really interested in robbing the men of
jewels, cars, and ATM cards.  _Los Angeles Times_, June 22. A.S.L.

AIDS & Society Notes

The Associated Press reported that researchers in Uganda have
demonstrated that nevirapine was 47 percent more effective than AZT
in preventing transmission of HIV from pregnant women to their
offspring, according to an announcement by the U.S. National
Institutes of Health on July 14.  The news was considered
particularly significant because of the relatively low cost of
nevirapine, which would make possible widespread use in Third World
Countries where perinatal transmission has emerged as a major
crisis.

PUBLICATIONS NOTED

LESBIAN & GAY & RELATED LEGAL ISSUES:

Allison, Gary D., _The Cultural War over NEA Funding: Illogical
Statutory Deconstruction Erodes Expressive Freedom_, 34 Tulsa L. J.
233 (Winter 1999).

Backer, Larry Cata, _A Cobbler's Court, A Practitioner's Court: The
Rehnquist Court Finds Its "Groove"_, 34 Tulsa L. J. 347 (Winter
1999).

Backer, Larry Cata, _Toleration, Suppression and the Public/Private
Divide: "Homosexuals" Through Military Eyes_, 34 Tulsa L. J. 537
(Spring 1999).

Battaglia, Jack M., _Religion, Sexual Orientation, and Self-
Realization: First Amendment Principles and Anti-Discrimination
Laws_, 76 U. Detroit Mercy L. Rev. 189 (Winter 1999).

Carolan, Bruce, _An Army of Lovers? Queering the Minister of
Defence Report of the Homosexual Policy Assessment Team_, 34 Tulsa
L. J. 555 (Spring 1999).

Carr, Captain John A., _The Difference Between Can and Should:
_Able v. United States_ and the Continuing Debate About Homosexual
Conduct in the Military_, 46 Air Force L. Rev. 1 (1999).

Conway, Helen L., _Transsexuality and Child-related Cases_, 29 Fam.
L. (U.K.) 332 (May 1999).

Culhane, John G., _Uprooting the Arguments Against Same-Sex
Marriage_, 20 Cardozo L. Rev. 1119 (March 1999).

Dodson, Robert D., _Homosexual Discrimination and Gender: Was_
Romer v. Evans_ Really A Victory for Gay Rights?_, 35 Cal. West. L.
Rev. 271 (Spring 1999).

Drobac, Jennifer Ann, _Pansexuality and the Law_, 5 Wm. & Mary J.
Wom. & L. 297 (Spring 1999).

Glasser, Ira, _The Struggle for a New Paradigm: Protecting Free
Speech and Privacy in the Virtual World of Cyberspace_, 23 Nova L.
Rev. 625 (Winter 1999).

Keller, Susan Etta, _Operations of Legal Rhetoric: Examining
Transsexual and Judicial Identity_, 34 Harv. Civ. Rts. - Civ. Lib.
L. Rev. 329 (Summer 1999).

Knauer, Nancy J., _Heteronormativity and Federal Tax Policy_, 101
W. Va. L. Rev. 129 (Fall 1998) (provocative analysis of marital
provisions in federal tax code from the perspective of queer
theory).

Kuykendall, Mae, _Resistance to Same-Sex Marriage as a Story About
Language: Linguistic Failure and the Priority of a Living
Language_, 34 Harv. Civ. Rts. - Civ. Lib. L. Rev. 385 (Summer
1999).

Lanctot, Catherine J., _The Plain Meaning of_ Oncale, 7 Wm. & Mary
Bill of Rts. J. 913 (April 1999).

Limas, Vicki J., _Significant Employment Law Decisions in the 1997-
98 Term: A Clarification of Sexual Harassment Law and a Broad
Definition of Disability_, 34 Tulsa L. J. 307 (Winter 1999).

Samuelson, David R., _Hart, Devlin, and Arthur Miller on the Legal
Enforcement of Morality_, 76 Denver U. L. Rev. 189 (1998).

Silverstein, Louise B., and Carl F. Auerbach, _Deconstructing the
Essential Father_, 54 Amer. Psychologist 397 (June 1999) (review of
research debunking the argument that single-parent households are
bad for children).

Rohr, Marc, _Can Congress Regulate "Indecent" Speech on the
Internet?_, 23 Nova L. Rev. 707 (Winter 1999).

Roth, Louise Marie, _The Right to Privacy Is Political: Power, the
Boundary Between Public and Private, and Sexual Harassment_, 24 L.
& Soc. Inq. 45 (Winter 1999).

Sharpe, Andrew N., _Transgender Performance and the Discriminating
Gaze: A Critique of Anti-Discrimination Regulatory Regimes_, 8 Soc.
& Leg. Studies 5 (March 1999).

Ware, Dabney D. & Bradley V. Johnson, Oncale v. Sundowner Offshore
Services, Inc._: Perverted Behavior Leads to a Perverse Ruling_, 51
Fla. L. Rev. 489 (July 1989).

Whitehead, John W., _Eleventh Hour Amendment or Serious Business:
Sexual Harassment and the United States Supreme Court's 1997-1998
Term_, 71 Temple L. Rev. 773 (Winter 1998) (Head of conservative
Rutherford Institute [which supported Paula Jones's sexual
harassment case against President Clinton] analyzes the _Oncale_
same-sex harassment case; for interested curiosity-seekers). =20

Willborn, Steven L., _Taking Discrimination Seriously:_ Oncale_ and
the Fate of Exceptionalism in Sexual Harassment Law_, 7 Wm. & Mary
Bill of Rts. J. 677 (April 1999).

Yalda, Christine A., _Walking the Straight and Narrow: Performative
Sexuality and the First Amendment After Hurley_, 8 Soc. & Leg.
Studies 25 (March 1999).

_Student Notes & Comments:_

Band, Kenneth, _The Importance of Updating Sexual Harassment
Policies to Thwart Same-Sex Sexual Harassment Claims_, 16 Hofstra
Lab. & Emp. L. J. 481 (Spring 1999).

Barnett, James E., _Updating_ Romer v. Evans_: The Implications of
the Supreme Court's Denial of Certiorari in_ Equality Foundation of
Greater Cincinnati v. City of Cincinnati, 49 Case West. Res. L.
Rev. 645 (Spring 1999).

Bennett, Alan G., _The "Cure" That Harms: Sexual Orientation-Based
Asylum and the Changing Definition of Persecution_, 29 Golden Gate
U. L. Rev. 279 (Spring 1999).

Bevilacqua, Elizabeth, _Child Sex Tourism and Child Prostitution in
Asia: What Can be Done to Protect the Rights of Children Abroad
Under International Law?_, 5 ILSA J. Int'l & Comp. L. 171 (Fall
1998).

Brightwell, Rochelle L., Willis v. Wal-Mart_: Same-Sex Sexual
Harassment as a Recognized Claim in West Virginia_, 101 W. Va. L.
Rev. 253 (Fall 1998).

Brown, Anne B., _The Evolving Definition of Marriage_, 31 Suffolk
Univ. L. Rev. 917 (1998) (considers same-sex marriage and domestic
partnership).

Cavazos, Sandra, _Harmful to None: Why California Should Recognize
Out-of-State Same-Sex Marriages Under Its Current Marital Choice of
Law Rule_, 9 UCLA Women's L. J. 133 (Fall/Winter 1998).

Kimpel, Jason D., _"Distinctions Without a Difference": How the
Sixth Circuit Misread_ Romer v. Evans, 74 Indiana L. J. 991 (Summer
1999).

Lukoff, Jennifer C., _South Africa Takes the Initial Step Towards
a Brilliant Twenty-First Century: A Comparative Study of_ State v.
Kampher_ &_ Bowers v. Hardwick, 18 N.Y.L.S. J. Int'l & Comp. L. 459
(1999).

McMillen, Stephen, _Adult Uses and the First Amendment: The_
Stringfellow's_ Decision and Its Impact on Municipal Control of
Adult Businesses_, 15 Touro L. Rev. 241 (Fall 1998).

Note, _Preserving Children's Rights: The Challenges of Eradicating
Child Sexual Exploitation in Thailand and India_, 22 Suffolk
Transnational L. Rev. 259 (Winter 1998).

Paulsen, Marti, _Does Public Access to Sex Offender Registration
Information Under the Kansas Sex Offender Registration Act
Constitute Cruel and Unusual Punishment? [_State v. Scott_, 961
P.2d 667 (Kan. 1998)]_, 38 Washburn L. J. 727 (Spring 1999).

Prettyman, Tom, _Federal and State Constitutional Law Challenges to
State Sex Offender Laws_, 29 Rutgers L. J. 1075 (Summer 1998).

Seamon, Aaron A., _The Flawed Compromise of 10 U.S.C. sec. 654: An
Assessment of the Military's "Don't Ask, Don't Tell" Policy_, 24 U.
Dayton L. Rev. 319 (Winter 1999).

Silver, Brian M., _Freedom of Expression and Adult Entertainment:
The Naked Truth_, 37 Duquesne L. Rev. 103 (Fall 1998).

Spiess, Lillian M., _What's Wrong With This Picture?: The National
Endowment for the Arts and the "Decency and Respect" Standard_, 15
Touro L. Rev. 779 (Winter 1999).

Toker, Rachel L., _Multiple Masculinities: A New Vision for Same-
Sex Harassment Law_, 34 Harv. Civ. Rts. - Civ. Lib. L. Rev. 577
(Summer 1999).

Van Duyn, Amy L., _The Scarlet Letter Branding: A Constitutional
Analysis of Community Notification Provisions in Sex Offender
Statutes_, 47 Drake L. Rev. 635 (1999).

_Specially Noted:_

Symposium on Prostitution and the Law, 10 Hastings Women's L. J.
No. 1 (Winter 1999). * * * Symposium: Section 1983 Municipal
Liability in Civil Rights Litigation, 48 DePaul L. Rev. No. 3
(Spring 1999)

AIDS & RELATED LEGAL ISSUES:

Aziz, Mirian, and Murray Earle, _Legalising Cannabis for
Therapeutic Use: A Comparative Assessment_, 3 Med. L. Int'l 273
(1998).

Eichhorn, Lisa, _Major Litigation Activities Regarding Major Life
Activities: The Failure of the "Disability" Definition in the
Americans With Disabilities Act_, 77 N.C. L. Rev. 1405 (April 1999)
(recommends amending the ADA to adopt a commonsense definition of
disability that will short-circuit continuing litigation about such
bizarre issues as what constitutes a major life activity).

Osterlund, Anthony, _The Unequal Balancing Act Between HIV-Positive
Patients and Physicians_, 25 Ohio Northern U. L. Rev. 149 (1999).

Sulds, Jonathan L., and Jonathan L. Israel, _Discrimination by
Association_, NYLJ, 6/28/99, p.9, col.1 (discusses cases of
individuals who suffer discrimination because of their association
with people with HIV).

Wright, R. George, _Persons with Disabilities and the Meaning of
Constitutional Equal Protection_, 60 Ohio St. L. J. 145 (1999).

_Student Notes & Comments:_

Comment, _Determining Reasonable Accommodations Under the ADA: Why
Courts Should Require Employers to Participate in an "Interactive
Process," 30 Loyola U. Chi. L. J. 513 (Spring 1999).

Dowdle, Warren W., _What's Underneath My Bed? Kansas Recognizes a
Claim for Fear of Contracting AIDS [_Reynolds v. Highland Manor,
Inc., 954 P.2d 1240 (Kan. 1998)_], 38 Washburn L. J. 269 (Fall
1998).

Foster, Leanne Mashburn, _Asymptomatic HIV-Infection and Its Place
Within the Americans With Disabilities Act After_ Bragdon v.
Abbott, 43 St. Louis U. L. J. 177 (Spring 1999).

Greenstein, Jeffrey B., _New Jersey's Continuing Expansion of Tort
Liability: _Williamson v. Waldman_ and the Fear of AIDS Cause of
Action_, 30 Rutgers L. J. 489 (Winter 1999).

Guidry, Leah, _To Heal Another or to Protect Oneself?: HIV Under
the ADA in Light of_ Bragdon v. Abbott, 15 Touro L. Rev. 805
(Winter 1999).

Kinnally, Moira J., _Not in My Backyard: The Disabled's Quest for
Rights in Local Zoning Disputes Under the Fair Housing, The
Rehabilitation, and the Americans With Disabilities Acts_, 33
Valparaiso U. L. Rev. 581 (Spring 1999).

Ocheltree, Alan, _Bragdon v. Abbott_, 25 Ohio Northern U. L. Rev.
183 (1999).

Pauls, Todd, _Asymptomatic HIV, Reproduction, and the Americans
With Disabilities Act of 1990: The Disability Dilemma in_ Bragdon
v. Abbott, 22 Hamline L. Rev. 633 (Winter 1999).

Recent Developments, _Is HIV Really a "Disability"?: The Scope of
the Americans With Disabilities Act After_ Bragdon v. Abbott_, 118
S.Ct. 2196 (1998), 22 Harv. J. L. & Pub. Pol. 751 (Spring 1999).

Reeder, Amy C., Bragdon v. Abbott_: Is Asymptomatic HIV a Per Se
Disability Under the Americans With Disabilities Act?_, 50 Mercer
L. Rev. 631 (Winter 1999).

Richter, Dana, _Not in My Office: Medical Professionals and Their
Refusal to Treat HIV/AIDS Patients_, 23 L. & Psych. Rev. 179
(Spring 1999).

Ruby, Rebecca, _Apprehending the Weapon Within: The Case for
Criminalizing the Intentional Transmission of HIV_, 36 Am. Crim. L.
Rev. 313 (Spring 1999).

Schultz, Jill L., _The Impact of Title III of the Americans With
Disabilities Act on Employer-Provided Insurance Plans: Is the
Insurance Company Subject to Liability?_, 56 Wash. & Lee L. Rev.
343 (Winter 1999).

Volkman, Karen M., _The Limits of Coverage: Do Insurance Policies
Obtained Through an Employer and Administered by Insurance
Companies Fall Within the Scope of Title III of the Americans With
Disabilities Act?_, 43 St. Louis U. L. J. 249 (Spring 1999).

_Specially Noted:_

Symposium on the Beginning and End of Life, 12 Notre Dame J. L.
Ethics & Pub. Pol. No. 2 (1998).

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. * * * Regular monthly publication
resumes with the September 1999 issue of _Law Notes_.