DE FACTO

January 2010
IRISH SUPREME COURT REJECTS GAY DE FACTO FAMILIES AND AUTHORIZES ACCESS TO LESBIANS’ CHILD FOR SPERM DONOR
A five-judge panel of the Supreme Court of Ireland, unanimously reversing a trial judge, ruled
on December 10, 2009, that a lesbian couple
and their child do not constitute a legallyrecognized family in Ireland and that the gay
man who had donated sperm used to conceive
their child was entitled as a biological father to
seek access to the child in the form of a visitation schedule. However, the court upheld the
trial judge’s decision that it would not be appropriate to appoint the sperm donor as a legal
guardian of the child, although he was entitled
by Irish law to apply for such an appointment.
In the course of reaching its decision in the
case of McD. v. P.L. & B.M., [2009] IESC 81,
Supreme Court Record No. 186/08, the court
also ruled that the trial judge, High Court Judge
John Hedigan, who formerly sat for many years
as a judge of the European Court of Human
Rights, had erred in concluding that the lesbian
couple and their child would be regarded as a
family under Article 8 of the European Convention on Human Rights. Such family status, if it
were recognized in Ireland, could weigh heavily in balancing their rights as against any
rights claimed by the sperm donor. Instead, according to the Supreme Court, the term “family” as used in the Irish Constitution is solely
based on a married couple.
The case received a fair degree of notoriety in
the media early in 2007, when a different trial
judge issued an order sought by McD to keep
the mothers from moving to Australia with the
child. That order was affirmed by the Supreme
Court in response to an emergency appeal.
According to the lead opinion for the court by
Justice Susan Denham, the mothers had
reached an agreement with a different man to
be their sperm donor in 2003, but after several
unsuccessful attempts P.L. was unable to become pregnant, and the original donor lost interest. Then the women became friendly with
John McD., who offered after some initial hesitation to step in as the sperm donor. They took a
written agreement that had been drafted by the
prior sperm donor and adapted it to the new arrangement. Under the agreement, McD was not
to have any parental rights or obligations, but
was to assume the role of a “favorite uncle” with
the child with visitation at the discretion of the
LESBIAN/GAY LAW NOTES
mothers. This agreement was signed shortly after P.L. became pregnant with sperm donated
by McD. The mothers entered into a civil partnership in the U.K. after that status became
available in 2005, but this is not recognized in
Ireland.
After the child was born, McD became intensely interested, visited more frequently than
the women desired, and appeared to them to be
poised to attempt to assert a great role than they
had contemplated. They sought to temper his
enthusiasm by reduced contact, and then announced that they would be traveling to Australia, P.L.’s native country, to introduce the child
to P.L.’s family and spend some time there.
McD, alarmed at losing contact, instituted the
lawsuit under a statute authorizing unmarried
biological fathers to seek appointment as legal
guardians, seeking such an appointment, joint
legal custody, and formal visitation rights. He
also sought an order that the child not be removed from Ireland pending the outcome of the
suit.
At the time, the trial judge hearing McD’s
emergency motion determined to let the mothers take their child to Australia for a few
months, but required that they return and stay
with the child in Ireland until the case was decided on its merits. During the course of the
proceedings, the High Court (that is, the trial
court in this case) required the mothers to provide some visitation opportunities for McD,
which went off without incident.
However, the trial judge on the merits, John
Hedigan, giving great weight to a report prepared by a neutral expert who had interviewed
all the parties and who recommended against
any compelled contact with McD. Hedigan decided that it was inappropriate to appoint McD
as guardian under the circumstances, and that
the mothers and their child constituted a de
facto family which should not be disturbed by
requiring access to the child for McD. In reaching this conclusion, Hedigan found that the result would be consistent with Ireland’s treaty
obligations under the European Human Rights
Convention, finding that under the Convention
the lesbian couple and their child would be
considered a “family” whose integrity would
have to be respected under the law.
January 2010
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NYC 10013, 212–431–2156, fax 431–1804; e-mail: [email protected] or
[email protected]
Contributing Writers: Chris Benecke, J.D., NYC; Alan J. Jacobs, Esq., NYC; Bryan Johnson, J.D., NYC; Steven Kolodny, Esq., NYC; Daniel Redman, Esq.;
Stephen E. Woods, NYLS ‘10; Eric Wursthorn, JD, NYC.
Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212–353–9118; e-mail: [email protected]. Inquire for rates.
LeGaL Homepage: http://www.le-gal.org
Law Notes on Internet: http://www.nyls.edu/jac
©2010 by the LeGaL Foundation of the LGBT Law Association of Greater New York
ISSN 8755–9021
The Supreme Court emphatically disagreed
with all but one of these conclusions, however.
As to the guardianship decision, all the judges
agreed that appointing McD a legal guardian of
the child would not be in the child’s best interests, given the hostile relationship that now exists between McD and the child’s mothers and
the circumstances under which the child was
conceived. Such guardianships are more usually set up in cases involving unmarried cohabitation of a different-sex couple with their
child, and are intended to provide a legal bond
between father and child in such circumstances to protect the relationship.
In this case, however, McD never had such a
relationship with the lesbian couple, being
merely a casual friend who agreed to donate
sperm, and who had signed an agreement foreswearing any desire to be a legal parent. While
the court found that such written agreements
are not legally enforceable, and noted that the
parties had not even signed it until after P.L. became pregnant, it concluded that the agreement
was evidence of the arrangements to which the
parties had agreed.
Justice Denham concluded that Judge Hedigan had given undue weight to the expert’s report, and that the overriding goal of Irish family
law is “to place the child’s welfare as the first
and paramount consideration.” The court also
concluded that Hedigan was mistaken about
European Convention law, finding that the
European Court has not yet issued any decision
holding that a same-sex couple, with or without
children, should be considered a “family” for
purposes of Article 8 of the Convention, and
that in any event Ireland’s accession to the convention treaty did not require subjugating domestic Irish family law to European Court
precedents in an individual case. In a separate
opinion, Justice John Murray produced an extensive discussion of the complicated interrelationship of Irish domestic law and European
human rights law.
The court also decisively rejected Judge Hedigan’s conclusion that the mothers and child
could be considered a de facto family for purposes of Irish domestic law. The Irish Constitution provides that “the State recognises the
Family as the natural primary and fundamental
unit group of Society, and as a moral institution
possessing inalienable and imprescriptible
rights, antedecent and superior to all positive
law,” and specifically provides that the State,
“therefore, guarantees to protect the Family in
its constitution and authority.” However, according to Justice Denham, although the Constitution does not “expressly” define the term
family, court decisions have unanimously con-
2
sidered that a marriage is a necessary element
for a legal family in Ireland. Unmarried cohabitants may have certain rights and protections
under Irish law, but their relationship is not
considered a family.
“There is no institution in Ireland of a de
facto family,” wrote Justice Denham. So when
custody and visitation issues arise in cases involving unmarried parents, the special legal
status of a family in Irish law is not involved,
and the court is to make its decision based on
the welfare of the child. In this case, wrote Denham, “The Respondents are a loving couple,
taking care of the child, in a settled environment,” and this is a “key factor” in determining
that McD should not be appointed a legal
guardian.
Since the written agreement was not a legally
enforceable contract and European Human
Rights law was deemed irrelevant, the court decided that the issue of visitation should be determined based on the best interest of the child.
“Applying the test to all the circumstances of
the case,” wrote Justice Denham, “I would
January 2010
make an order enabling access by the father to
the child. This is in the best interests of the
child. I would envisage this contact at stated
times during the year. It may be on one day a
month. It may vary according to circumstances.
It may vary as time goes by and the child grows
up. It may commence by access of the father
and child in the company of another. I make no
decision on these details and none should be
inferred. These are matter which require to be
decided. Indeed this result is not very different
from the original agreement entered into between the parties.”
Justice Denham, echoed by the other judges
(three of whom wrote separate opinions explaining their concurrence with the court), expressed a preference for a settlement by the
parties rather than a court order. “It may be possible for the parties to arrive at an agreement
without the necessity of returning the matter to
the High Court to hear parties and to determine
the details of access,” she wrote. “However, it if
is not possible for the parties to reach an agreement on access, I would remit the matter to the
Lesbian/Gay Law Notes
High Court for a hearing and determination on
that issue.”
Among the matters that the parties would
have to determine would be whether and how
frequently the mothers could take the child
with them to visit P.L.’s family in Australia,
which is likely to be a continuing point of contention. But all that has yet to be worked out.
LGBT rights campaigners in Ireland immediately responded to the court’s decision with
disappointment at the rejection of the de facto
family concept, as the national legislature was
poised to take up a proposal by the government
to enact a Civil Partnership law to provide some
legal status short of marriage for same-sex couples. The Irish Times reported on December 11
that Brian Sheehan, director of the Gay and
Lesbian Equality Network, said that the court’s
judgment highlighted “the importance and urgency of providing legal support and recognition” for same-sex partners and their child.
“Providing a legal framework for parenting,
with the welfare of the children the paramount
guiding principle, will also help clarify obligations and responsibilities from the outset,” he
told the newspaper. A.S.L.
LESBIAN/GAY LEGAL NEWS
Ninth Circuit Panel Reverses Discovery Order in
Prop 8 Litigation as Case Moves Towards Trial
In the most recent turn of events in Perry v.
Schwarzenegger, the Proposition 8 lawsuit led
by Messrs. Ted Olson and David Boise, a Ninth
Circuit panel overturned District Judge Walker’s ruling on a discovery request. 2009 WL
4795511 (9th Cir. Dec. 16, 2009). Judge
Fisher, writing for the panel, held that the plaintiffs’ request for internal campaign communications among proponents of Proposition 8 infringed on the First Amendment rights of the
Proponents. [Editor: Although a member of the
Circuit called for en banc review, the court issued a notice at the end of December, after this
article was submitted, announcing that the requisite number of Circuit judges did not endorse
the request, so the panel decision is final.]
Judge Fisher held that the court had jurisdiction under the collateral order doctrine. The
disputed issue, whether a First Amendment
privileged cloaked the internal campaign communications from discovery, was held to be immediately appealable as the discovery dispute
was conclusively determined by the district
court, the First Amendment concerns were
separate from the merits of the case, and the issue would be effectively non-reviewable upon
appeal from a final judgment. In determining
that the issue would not be reviewable in the ordinary course, Judge Fisher held that Mohawk
v. Carpenter,, a recent decision in which the Supreme Court ruled that discovery issues pertaining to the attorney-client privilege are re-
viewable upon appeal, was inapplicable in the
First Amendment context. Judge Fisher
pointed out that the present issue was of constitutional dimensions, more important to the
public interest than attorney-client privilege,
and would not increase the caseload of appellate courts because First Amendment privileges are rarely raised in discovery. Although
recognizing that whether Mohawk should apply
in the First Amendment context is “a close
question,” Judge Fisher ultimately held that jurisdiction could be obtained through the collateral order doctrine.
As a precautionary measure, Judge Fisher
also held that jurisdiction was proper through a
grant of mandamus. In analyzing the factors for
mandamus review, Judge Fisher held that,
should Mohawk apply to the case and bar interlocutory review, there would be no alternative
avenue for relief. Further, post-judgment appeals would not be able to provide a remedy, as
proponents of Proposition 8 would already be
injured by the disclosure itself. Judge Fisher
also held that the present dispute was not only a
significant question of first impression, but also
that the decision by the district court was
clearly erroneous as a matter of law. Accordingly, mandamus jurisdiction was appropriate
as an alternative to the collateral order doctrine.
Turning to the substantive issues, Judge
Fisher first explained his disagreement with the
lower court’s holding that the First Amendment
does not apply to internal campaign communications. Although the district court ruled that
the identities of rank-and-file members had to
be protected, Judge Fisher noted that even such
protected disclosure could still have a chilling
effect on participation in campaigns as well as
the free flow of information within such campaigns.
Having found a prima facie case of infringement of First Amendment rights, Judge Fisher
turned to the plaintiffs’ argument that a sufficiently compelling need for the requested information justified the infringement. The district court had ruled that such infringement was
justified, as the disclosures might reasonably
lead to the discovery of admissible evidence.
Judge Fisher ruled that this argument was insufficient in the context of First Amendment
rights, pointing out that the plaintiffs could obtain information from other sources or secure
expert testimony on whether campaign messages were designed to appeal to voters’ animosity toward gays and lesbians. Chris Benecke
[Editor’s Note: Trial in this case is scheduled
to begin in the U.S. District Court in San Francisco before Judge Vaughn Walker on January
11. It is predicted that the trial, which will include extensive expert testimony, may take as
long as a month. There is a possibility that some
or all of the trial may be web-cast, under a new
experimental program adopted by the 9th Circuit for live transmission of trials, but the Proponents of Proposition 8, the actual defendants
in the lawsuit, have objected, arguing that expert witnesses opposed to same-sex marriage
may face harassment or worse if their testimony
is televised.]
Lesbian/Gay Law Notes
Federal Trial Courts Disagree About First
Amendment Protection for Teachers’
Homophobic Classroom Speech
In Sheldon v. Dhillon, 2009 WL 4282086
(U.S.Dist. Ct., N.D. Cal. Nov 25, 2009), a biology adjunct professor formerly employed at a
community college brought a 42 U.S.C.
Sec.1983 suit alleging violation of her First
Amendment rights. Plaintiff claimed that
school administrators refused to renew her contract following a complaint by a student that —
in response to a student’s question regarding
the impact of genetics on homosexuality — the
professor “made offensive and unscientific’
statements, including that there aren’t any real
lesbians’ and that there are hardly any gay men
in the Middle East because the women are
treated very nicely.’” The court denied the defendant school’s motion to dismiss.
This decision follows on the heels of Nichols
v. University of Southern Mississippi, 2009 WL
3517616 (S.D. Miss. Oct. 26, 2009), a similar
case with a different outcome covered in last
month’s Law Notes. In that case, the plaintiff
adjunct professor’s contract was not renewed
because a student complained the professor
made homophobic comments to him after class,
and he brought suit alleging First Amendment
violations. The court granted the school’s motion to dismiss in part based on the Supreme
Court’s ruling in Garcetti v. Ceballos. That case
dealt with a deputy district attorney who wrote a
report critical of an affidavit issued by his office, and who alleged that as a result he suffered
retaliation in violation of the First Amendment.
The Supreme Court held in Garcetti that government officials were exempt from First
Amendment protections when speaking in their
official capacity. “Because of its form and context,” in a classroom, to a student, regarding career plans, the district court held in Nichols,
“this speech is best characterized as speech
made in Dr. Nichols’s official capacity and is
not afforded First Amendment protection.”
In contrast to the Nichols case, in Sheldon the
district court denied the defendants’ motion to
dismiss plaintiff’s First Amendment claims.
The court pointed out that the Supreme Court
had pointedly refused to rule in Garcetti as to
the decision’s applicability to academic settings. In ruling for plaintiff, the Sheldon court
relied in part on the Supreme Court’s decision
in Hazelwood Sch. Dist. v. Kuhlmeier to hold
that “a teacher’s instructional speech is protected by the First Amendment, and that if the
defendants acted in retaliation for her instructional speech, those rights will have been violated unless the defendants’ conduct was reasonably related to legitimate pedagogical
concerns.” The court limited “legitimate pedagogical concerns” to those “within the parameters of the approved curriculum and within academic norms.” In Hazelwood, the Supreme
January 2010
Court held that a journalism teacher who refused to let his students publish articles dealing
with divorce and pregnancy in the class newspaper had not violated the students’ First
Amendment rights. The court held there that
“educators do not offend the First Amendment
by exercising editorial control over the style
and content of student speech in schoolsponsored expressive activities so long as their
actions are reasonably related to legitimate
pedagogical concerns.” The court in Sheldon
cited Hazelwood for the same principle for
which it was cited in California Teachers Ass’n v.
State Bd. of Educ., a 2001 9th Circuit case. In
that case, the court cited Hazelwood for the
proposition that a regulation barring schoolteachers from using any language for instruction other than English did not violate the First
Amendment because it served a “legitimate
pedagogical interest.”
According to an article on the website InsideHigherEd.com, the academic community has
expressed concern about Garcetti‘s application
in the university setting and was “cautiously
pleased” by the court’s ruling in Sheldon. Rachel Levinson, senior counsel for the American
Association of University Professors, stated,
however, “she couldn’t be fully pleased while
other rulings continue to apply Garcetti to
higher education.”
Alliance Defense Fund and Pacific Justice
Institute serve as counsel for plaintiff. Stubbs &
Leone served as counsel for defendants. Daniel
Redman
Military Appeals Panels Affirms Criminal
Sanctions and Bad Conduct Discharge for
Consensual Gay Sex
The U.S. Navy-Marine Corps Court of Criminal
Appeals has affirmed a decision by a military
judge to impose criminal sanctions and a badconduct discharge on a service member for engaging in consensual gay sex, according to his
guilty plea. United States v. Hartman, 2009 WL
5126122 (Dec. 29, 2009) (not reported in
M.J.).
Senior Judge Booker’s terse summary of the
facts indicates that Hartman, a sonar technician, “was attached to a fast-attack submarine
that was in Georgia for some routine work, and
he was staying in a room in the base’s transient
visitors’ quarters that another Sailor from his
submarine had procured. According to his responses during the plea colloquy, [Hartman]
awoke to find another male Sailor fondling his
penis. [Hartman] eventually assisted the other
Sailor in penetrating [Hartman’s] anus. This
activity all occurred while a third occupant of
the room, a petty officer also attached to the
submarine, slept in one of the two beds in the
room.” The opinion does not indicate how this
activity came to the attention of military
authorities, although the most logical inference
3
from the balance of the opinion is that the other
Sailor (who testified against Hartman during
the court-martial) turned Hartman in, claiming
that he had been coerced into have sex with
him.
Hartman was charged with forcible sodomy
in violation of Article 125 of the UCMJ. The
military judge responded to his plea to a reduced charge of consensual sodomy with a penalty of one month in the brig, forfeiture of all pay
and allowances for that month, reduction in pay
grade and a bad-conduct discharge.
On appeal, Hartman contended that Article
125 was unconstitutional in its application to a
plea of consensual sodomy, and that during the
sentencing proceeding the judge had improperly admitted evidence contending that “the
sodomy was by force and without consent of the
other Sailor.” (Which suggests the peculiar notion of a man forcing another unwilling man to
top him anally... and doing so quietly enough
that an officer sleeping in the same room was
not disturbed?)
The appeals court panel unanimously affirmed the trial judge, finding that the presence
of another officer in the room, “albeit apparently unconscious” while the admitted “sodomy” was going on, meant that it was not taking
place in “private” and was thus outside the
sphere of “liberty” described in Lawrence v.
Texas by the Supreme Court. Military appeals
courts have taken the position that Lawrence
has limited application in the military sphere to
circumstances that come entirely within the
scope of the protected liberty described in that
opinion, and even then finding an exception for
situations where the particular needs of the
military arguably require a prohibition of sex
— such as conduct on military bases involving
persons of different rank.
As to the contention that it was error — an
abuse of discretion — to admit testimony during the sentencing hearing that Hartman’s conduct may not have been consensual, the court
said, “We find no such abuse [of discretion] in
this case. Even if the military judge did abuse
his discretion, the likelihood of harm to the appellant is near nonexistent given the sentence
adjudged and approved.” Citing the official
rules for courts-martial, the court asserted that
the government “may offer evidence of the circumstances surrounding an offense or the effect
of an offense in its case on sentencing… Here,
the Government offered testimony from the
other participant in the sodomy, a third class
petty officer, that provided a comprehensive
picture of the events of 19 October 2008 and
the effect that those events had on him. The appellant could be punished only for a crime
whose elements had been established beyond a
reasonable doubt. While the evidence offered
by the Government could have pushed the sentence toward the upper limit of the maximum
allowable for consensual sodomy (confinement
4
for 5 years; reduction to E–1; forfeiture of all
pay and allowances; and a dishonorable discharge; contrast this with the maximum for
forcible sodomy, the offense originally alleged,
of life), there is no danger in this case that the
appellant would have been punished for anything other than the offense of which he stood
convicted. The appellant was properly advised
that the maximum confinement that he faced
for the offense to which he pleaded guilty was 5
years. We are confidence that the military
judge, sitting as the sentencing authority, understood and properly applied the law regarding the maximum sentence and confined his
consideration to the offense before him.” A.S.L.
New Mexico Court Upholds Human Rights Ruling
Against Wedding Photographer
The Second Judicial District Court in Bernalillo County, New Mexico, ruled that a momand-pop photography business that was hauled
before the state’s Human Rights Commission
for refusing to provide their photography services to a lesbian couple for their commitment
ceremony did not enjoy a First Amendment
right to disobey the law. Elane Photography,
LLC v. Willock, CV–2008–06632 (Dec. 11,
2009).
The Human Rights Commission found that
New Mexico’s prohibition of sexual orientation
discrimination by “any public accommodation” had been violated by Elaine and Jon Huguenin, doing business as Elane Photography
LLC, and that their business was not entitled to
some sort of religious belief exemption from
having to provide equal services without regard
to sexual orientation of customers. Elane Photography filed suit against Vanessa Willock,
who had filed the civil rights complaint, seeking an order setting aside the Commission’s ruling.
The Huguenins argued strenuously on appeal that their business should not be considered a public accommodation, as they were just
a mom-and-pop company operating out of their
home, going to events when contracted to provide photography services, but the court found
that they were advertising their services on the
internet and in the yellow pages, and comfortably fit within the developing case law in New
Mexico and around the country in meeting the
requirements of a “public accommodation” as a
business actively providing services to the public.
They also made the usual disingenuous argument that they were not discriminating based
on sexual orientation. Indeed, they would be
happy to photography a wedding between a gay
man and a lesbian, for example, but they just
held religious objections to any kind of formal
ceremony linking two persons of the same sex
in some sort of wedding. They said that, if anything, they were discriminating on the basis of
January 2010
marriage. As to this argument, wrote Judge
Alan M. Malott, “The Court disagrees and finds
that Plaintiff’s policy discriminates, on its face,
against gays and lesbians. It goes without saying that they are the only members of the public
who are involved in same-sex marriages or
commitment ceremonies. Just as with professional creativity, a sincerely held belief does
not justify discrimination based upon sexual
orientation under the NMHRA.”
As to the religious discrimination claim, the
plaintiffs argued that the state should not compel them to participate in a ceremony to which
they held religious objections, but Judge Malott
rejected the idea that requiring them to provide
their professional photography services at such
an event amounted to that. “This case is not an
example of religious persecution,” he wrote.
“Plaintiff and its owner-operator is not being
forced to participate in any ceremony or ritual;
the only requirement is that she photograph the
event. This is no different from the caterer or
florist attending the ceremony in order to provide its commercial service; they attend it, not
participate in it.”
Plaintiffs complained that the NM Human
Rights Act was not “neutral” with respect to religion because it exempted religious institutions from having to comply with the sexual orientation non-discrimination provision, but
provided no such exemption for religious individuals. Consequently, they challenged the
constitutionality of the act, arguing that New
Mexico had no compelling interest sufficient to
justify such an abridgement of religious freedom. Malott rejected this argument, finding
that the act was perfectly neutral with respect to
religion, and was not intended to discriminate
on grounds of religion. But even if a compelling
interest were needed to justify it, he found one:
the state’s desire to stamp out discrimination by
businesses offering goods and services to the
public.
The irony that same-sex marriage was not involved in the case evaded comment from the
court.
The Alliance Defense Fund is representing
Elane Photography, so this ruling will be appealed to the state appellate courts, and, one
suspects that if the state appellate courts affirm
Judge Malott, ADF will file a cert. petition to
the US Supreme Court. A.S.L.
Federal Civil Litigation Notes
Supreme Court — The Supreme Court has
granted a writ of certiorari in Christian Legal
Society v. Martinez, No. 08–1371, in which the
9th Circuit had summarily affirmed a district
court’s ruling that the University of California,
Hastings, could apply its nondiscrimination
policy to refuse campus recognition for a chapter of the Christian Legal Society, which restricts its members to those who affirm Chris-
Lesbian/Gay Law Notes
tian faith and bars membership to anyone who
engages in “unrepentant homosexual conduct”
or whose religious beliefs differ from the official
statement of faith of the organization. (Thus,
professing Christians who support gay rights,
including gay Christians, would be disqualified
from membership, apparently.) The University
took the position that as a state institution it
could not provide official recognition or support
without violating its non-discrimination policy,
which mirrors the non-discrimination policy for
places of public accommodation adopted by the
state legislature as well. CLS chapters have
waged legal battles in several jurisdictions to
obtain official recognition on state university
campuses with varying results, and the Supreme Court’s grant of review is seen as intended to resolve a split between the 9th Circuit
and a ruling by the 7th Circuit in a case involving Southern Illinois University.
District of Columbia — According to a report
in Law.com on Dec. 23, U.S. District Judge
Richard Leon denied a motion to dismiss an obscenity prosecution from the bench on December 22, rejecting the argument that federal obscenity laws are unconstitutional both on
grounds of vagueness and on a liberty argument
derived from Lawrence v. Texas. The bench ruling in United States v. Stagliano may be appealed quickly, as Judge Leon said at the hearing that he would consider allowing an
interlocutory appeal to the D.C. Circuit. “This
is about the overarching legal issue in this case,
and needs to be resolved one way or another.”
Federal officials indicted John Stagliano and
his company, Evil Angel Productions, claiming
illegal sale and transfer across state lines of obscene material, noting particular two DVDs,
“Storm Squires 2: Target Practice” and “Milk
Nymphos,” and a film trailer for “Fetish Fanatic
Chapter 5.” The motion to dismiss claimed that
the federal obscenity statute — which follows
the Supreme Court’s Miller rules — is unconstitutionally vague because it leaves the determination of what is obscene up to juries under a
charge to consider “contemporary community
standards” in deciding the degree of sexual explicitness that is permissible, and that the privacy rights established in Lawrence include the
right to purchase, own and view such films.
Leon opined that the statutes provided sufficient guidance for courts, and, he said, “The
liberty interest the defendants claim pales in
comparison to the liberty interest announced in
Lawrence.”
Illinois — In Fellers v. Potter, 2009 WL
4679505 (N.D.Ill., Dec. 7, 2009), a non-gay
male postal employee alleged that he was subjected to hostile environment sexual harassment when his supervisor said to him, in the
presence of other employees, that he “wanted
to hug me and kiss me all over my body.” Plaintiff promptly filed an administrative discrimination complaint about this incident and upon
Lesbian/Gay Law Notes
its dismissal, quickly filed a federal court action, which was dismissed on summary judgment in this opinion. District Judge Robert M.
Dow, Jr., found that although same-sex harassment is actionable under Title VII, courts normally require more than an isolated incident to
find “severe and pervasive” conduct necessary
to support a hostile environment claim. Dow recited examples of other cases in which the 7th
Circuit had found incidents on their face more
severe than what plaintiff alleged here that did
not meet the threshold of severity necessary to
find that the plaintiff’s terms and conditions of
employment had been adversely altered. Dow
also noted that cases that involve only statements, not offensive touching, are unlikely to
succeed, concluding, “The evidence here depicts an immature, at least subjectively offensive remark, but not conduct that was so frequent, humiliating, or threatening as to create a
hostile work environment.”
Indiana — The U.S. Court of Appeals affirmed a ruling by U.S. District Judge Larry J.
McKinney (S.D. Indiana) rejecting discrimination claims by two former employees of the Indianapolis Star newspaper, who claimed they
lost their jobs because of their religiouslybased opposition to homosexuality. Patterson v.
Indiana Newspapers, 2009 WL 4573706 (7th
Cir., Dec. 8, 2009). In both cases, the court
found, the employer had legitimate nondiscriminatory reasons for its actions. Both
cases involved individuals who had been employed as editorial writers. In the case of one, an
internal reorganization of responsibilities combined with her abuse of the overtime pay process led the paper to reassign her to the copy
desk; preferring to write editorial, she resigned
from the paper rather than accept the reassignment. In the other case, the employee was discharged because of frequent errors in his work
that required the newspaper to print corrections, a situation that was not improved after he
was put into a probationary program. The appeals court found that the religious discrimination claims were properly dismissed.
Kentucky — A new stage has been reached in
the long-running lawsuit of Pedreira v Kentucky
Baptist Homes for Children, Inc., 579 F.3d 722
(6th Cir. 2009). This is the case where the defendant discharged an employee after discovering she was a lesbian, on the basis of religious
disapproval of her lifestyle. The plaintiff
charged religious discrimination in violation of
Title VII and also alleged that state funding for
the defendant violated the Establishment
Clause since it imposed a religious employment test and proselytized among the children
committed to its care by the state. The Title VII
claim has fallen out of the state as a result of adverse rulings in motion practice, but the 6th
Circuit ruled in August that the claimed Establishment Clause violation could be litigated.
On December 16, the Circuit denied rehearing
January 2010
or en banc review, and the defendants declared
that they would petition the U.S. Supreme Court
for certiorari, thus setting up a potential consideration of whether government funding of social
services provided by religious organizations
violates the Establishment Clause when those
organizations actively proselytize among the recipients of the social services.
New York — Julie Kamps, an attorney formerly employed by Fried, Frank, Harris,
Shriver & Jacobson LLP in that firm’s New York
office, has filed a discrimination complaint
against the law firm in the U.S. District Court for
the Southern District of New York, alleging violations of Title VII of the Civil Rights Act of
1964, the New York State and New York City
Human Rights Laws, and various common law
claims sounding in contract and tort. Kamps v.
Fried, Frank et al., No. 09 CIV 10392 (filed
Dec. 22, 2009). Kamps, a lesbian, alleges that
she was discriminated against and harassed because of her sex and sexual orientation, describing in her lengthy complaint incidents of
hostile environment harassment as well as various slights, insults and comments assertedly
motivated by hostility to her as a lesbian woman
who did not conform to female gender stereotypes. She alleges that although the firm has a
formal non-discrimination policy, the policy is
not followed and was not followed in her case.
She alleges that she was discharged while in the
midst of mediation of her internal discrimination claims at the firm. Kamps represents herself pro se. Assuming the address under her
signature line in the complaint reflects her current residence in California, it is puzzling that
she premises federal jurisdiction in her complaint on federal question jurisdiction and does
not alternatively rely on diversity jurisdiction.
A frequent problem in gay discrimination
claims brought in federal court asserting supplementary state law grounds is that if the court
decides to dismiss the Title VII claim, it will almost invariably also dismiss the state law
claims. Were the case premised on diversity,
the lawsuit could survive in federal court without the federal question claims. We make this
observation because Title VII claims by gay
plaintiffs are the most difficult to sustain, especially in light of 2nd Circuit adverse precedent
in cases where gay plaintiffs have tried to claim
relief on a gender stereotyping or hostile environment theory under Title VII, while the state
and local law claims arise under statutes that
explicitly outlaw sexual orientation discrimination, providing the surest vehicle for the plaintiff’s case. We also note that the complaint, passionately composed but short on detail, may be
found inadequate to establish the federal
claims in light of the Supreme Court’s recent
decision in Ashcroft v. Iqbal, 129 S.Ct. 1937
(2009), which has been construed as ratcheting
up significantly the pleading requirements in
federal civil litigation.
5
Texas — Rejecting plaintiff’s argument that
his Title VII claim against the city of San Angelo, Texas, based on alleged action by the
former mayor of San Angelo, J.W. Lown, could
not be fairly tried in that city, U.S. Magistrate
Judge Jeff Kaplan of the Dallas Division of the
U.S. District Court for the Northern District of
Texas granted a motion by the city to transfer
the action to the San Angelo Division of the
court. Doe v. City of San Angelo, 2009 WL
5033936 (Dec. 21, 2009). The John Doe plaintiff, formerly employed as a manager at the San
Angelo Municipal Airport, claims he was subjected to a hostile environment and treated differently by the former mayor from similarly
situated female city employees. Mayor Lown
caused a national media splash by resigning
shortly after being sworn in for his fourth term
in order to move to Mexico to live with his
same-sex partner. John Doe stated that he filed
his action in Dallas because he felt that Lown
remained very popular in San Angelo despite
his “coming out” and resigning, and so a San
Angelo jury would likely be predisposed in
Lown’s favor. Magistrate Kaplan rejected this
rationale, finding that all the criteria used to determine venue pointed to the San Angelo Division as the appropriate venue for this case.
“Without some empirical evidence that plaintiff cannot receive a fair trial in San Angelo, the
court is unable to conclude that the interest of
justice’ requires keeping this case in Dallas —
a venue that has absolutely no connection to the
facts or to the parties,” wrote Kaplan.
West Virginia — U.S. District Judge Irene C.
Berger approved a report and recommendation
by U.S. Magistrate Judge R. Clarke Vandervort
in Blue v. Fox, 2009 WL 4406032 (S.D.W.Va.,
Nov. 30, 2009), holding that a Unit Manager at
a federal prison had not violated the 8th
Amendment when she stated, in the hearing of
other inmates, that she would not grant plaintiff’s request that a particular inmate be moved
into his cell because “you are both known as
homosexuals.” Plaintiff’s legal theory was that
by making this statement in the hearing of other
inmates, the defendant had labeled him as a
homosexual and subjected him to the risk of attack from other inmates. Magistrate Vandervort
rejected this theory for 8th Amendment liability. “In order to establish a claim of failure to
protect, the inmate must show that he is incarcerated under conditions posting a substantial
risk of serious harm’ and that the prison officials acted with “deliberate indifference” to inmate health or safety.’ First, Plaintiff fails to allege that he was incarcerated under conditions
imposing a substantial risk of serious harm.
Plaintiff does not say that he was assaulted or
that his life was threatened by other inmates or
that his safety was jeopardized because of Defendant’s statement. Second, Plaintiff fails to
allege facts sufficient to satisfy the subjective
component of deliberate indifference. To satisfy
6
the subjective component, Plaintiff must allege
that Defendant was conscious of the risk of
harm to him.” Vandervort also noted that the
plaintiff had failed to allege that he had actually
suffered any serious injury as a result of the defendant’s statement. A.S.L.
State Civil Litigation Notes
California — The Charleston Gazette (West
Virginia) reported on Dec. 18 that the California Department of Parks and Recreation is establishing a Task Force to address equality issues for female and gay employees, as part of a
settlement of a harassment suit brought by a
lesbian park ranger in San Diego County Superior Court. “Jennifer Donovan claimed that colleagues posted obscene drawing and left underwear and sex toys in her locker during the six
years she worked at San Onofre and San
Clemente State Beaches.” According to
Donovan’s attorney, Wendy Musell, the settlement requires the newly-formed Task Froce to
monitor recruitment and equality issues for
women, gays, and transgendered people. The
Parks Department of course disclaimed any
wrongdoing on its part.
New Jersey — There were press reports at the
end of December that N.J. Superior Court Judge
Francis Schultz had ruled on December 23,
2009, in Robinson v. Hollingsworth, that Angelia Robinson, a woman who had served as a gestational surrogate to provide children for her
gay brother and his partner, is the legal mother
of the resulting twin girls and is entitled to seek
custody and visitation rights. According to the
press reports, the children were conceived with
anonymously donated ova and sperm from Sean
Hollingsworth, the partner of Donald Robinson
Hollingsworth, so Angelia Robinson is not genetically related to the children. New York
Times, Dec. 31. Most states that have confronted the issue have decided that gestational
surrogates who are birth mothers do not have
superior parental rights as against the wives of
the men whose sperm was used to inseminate
them, but the issue has not really been well settled yet regarding women who provide gestational surrogacy services for gay male couples.
There are a series of Connecticut decisions
from 2008 concerning gestational surrogates
for gay couples, but the cases were focused on
whether the men could obtain birth certificates
showing both men as parents of the child without going through an adoption proceeding for
the non-biological father; in those cases, the
gestational surrogates were not seeking to assert parental rights and supported the fathers’
quest for appropriate birth certificates for the
children. The newspaper reports describe Donald and Sean Hollingsworth as being married,
but do not indicate where they married. They
reside in Jersey City, and Donald is an accountant who works in Manhattan. At this point, New
January 2010
Jersey authorities have taken the position that
same-sex marriages performed out of state will
be regarded as civil unions in New Jersey, although at least one judge has suggested that
they should be considered marriages for the
purpose of access to the divorce courts.
Texas — In Cox v. Waste Management of
Texas, Inc., 2009 WL 3490946 (Tex. Ct. App.,
Ft. Worth, Oct. 29, 2009), the court affirmed a
grant of summary judgment to the employer and
to the plaintiff’s former supervisor in an alleged
case of same-sex sexual harassment in violation of state law. The plaintiff, Eric Cox,
claimed that his gay supervisor, Tony Wadley,
had subjected him to both quid pro quo and
hostile environment sexual harassment. Cox
claimed that Wadley persistently and aggressively came on to him and sought a romantic relationship with him, despite Cox’s repeated denial that he was gay or was interested in Wadley.
When Cox finally decided that Wadley had
gone too far, he complained to higher level supervisors. Cox’s allegations related almost entirely to statements, text messages and phone
calls from Wadley, and did not include any allegations of unwanted touching of a sexual nature. The company instituted an investigation
of Cox’s complaint, and ultimately suspended
Wadley and notified him that he had violated
company policy; Wadley subsequently resigned. From the time Cox made a formal complaint, Wadley ceased to contact him. The company offered Cox, a truck-driver, a transfer to a
different location, or alternatively offered to
transfer Wadley to a different location so that
Cox would not have to see him at work, but Cox
declined these offers. The company let Cox take
sick leave to deal with the emotional problems
he allegedly suffered as a result of his treatment
by Wadley, and Cox never returned to work for
the company. In his lawsuit, Cox alleged that
the company did not care about him, had not
taken adequate punitive measures against
Wadley, and had constructively discharged
Cox. He also charged infliction of emotional
distress and assault against Wadley. In affirming the trial court’s grant of summary judgment
to the company and Wadley, the court of appeals found that the company’s prompt response to the complaint and the actions it took,
while perhaps not ideal in every respect, were
sufficient to avoid liability under the Texas law
banning sex discrimination. The court rejected
Cox’s claim that the company had made conditions for him so intolerable that he was constructively discharged, or that offering him a
transfer to a different location constituted retaliation for his complaints. It is hazardous to
form an opinion about what happened based
solely on the factual narrative in a 17 page appellate decision, but the court does make it
sound (without using the term) like Cox was a
sort of “eggshell plaintiff” who had an unusually severe adverse emotional reaction to the
Lesbian/Gay Law Notes
unwanted attentions of a gay supervisor, but
that the company most likely responded in a
lawful manner to his complaints.
Vermont — The extended saga of the child
custody and visitation litigation between Lisa
Miller and Janet Jenkins continued to garner
national headlines at the end of 2009. The two
women were once domestic partners who had a
Vermont civil union and had a child together,
born to Miller. However, Miller initiated an action in Vermont to dissolve the civil union and
moved with their child to Virginia, where she
refused Jenkins access to her daughter. The
Vermont court had awarded Miller custody as
the birth mother, but decreed that Jenkins
should have visitation rights. Miller, who claims
to have become a born-again Christian and to
have repented of her lesbian past, resisted allowing visitation, claiming that Virginia law,
hostile to same-sex partners, backed her up.
Parallel lawsuits proceeded through the courts
of both states, resulting in consistent rulings
that the Vermont visitation order in favor of
Jenkins was enforceable in Virginia by virtue of
a federal statute and constitutional principles
of full faith and credit for state court decrees.
The U.S. Supreme Court refused to review these
rulings. But Miller continued to resist, leading
Vermont Family Court Judge William Cohen to
issue a new order in November switching custody to Jenkins with visitation rights for Miller,
and ordering Miller to surrender the child.
Jenkins asserts that as custodian of the child,
she would not block visitation with Miller.
Miller then “disappeared” with the child, her
telephone disconnected and her attorney, Matthew Staver, refusing to comment on the case.
Judge Cohen issued an order that Miller turn
over the child to Jenkins by 1 pm on New Years
Day at the Virginia home of Jenkins’ parents,
having previously denied a request by Miller to
delay the transfer. As we went to press, Miller
had defied the court order by failing to turn over
the child, her whereabouts not known. New
York Times, Jan. 1 & 2, 2010. A.S.L.
Criminal Litigation Note
California — In People v. Gonzalez-Astacio,
2009 WL 4894358 (Dec. 21, 2009), the California 2nd District Court of Appeal affirmed the
defendant’s conviction of the first degree murder of a gay man whom defendant had met in a
gay bar. The court said the evidence at trial supported the prosecution’s theory that defendant
was intending to rob the victim but ended up
bludgeoning him to death in defendant’s motel
room in order to cover defendant’s tracks. Defendant sought to portray his actions as selfdefense when the victim, an older man, came
on to him despite his protestations that he did
not want the victim to touch him, even though
he had acted flirtatiously in the bar. A.S.L.
Lesbian/Gay Law Notes
Legislative Notes
Federal — On Dec. 16, the Senate Homeland
Security & Governmental Affairs Committee
approved the Domestic Partnership Benefits
and Obligations Act, which would provide domestic partnership benefits for federal employees with same-sex partners.
Federal — U.S. Rep. Fortney Peter Stark (DCalif.) has introduced H.R. 3827, a bill that
would outlaw discrimination on the basis of
sexual orientation, gender identity or marital
status in any prospective adoption or foster care
placement, under the title “Every Child Deserves a Family Act.” The basis for federal jurisdiction to legislate on this is not spelled out
in the statute, and adoption and foster care are
generally considered to be matters of state, not
federal, policy. Presumably, this is intended to
enforce the 14th Amendment Equal Protection
Clause by outlawing state policies that discriminate on these bases. It might also be premised on the spending clause, since its operative
provisions apply to agencies that receive federal funding.
Federal — U.S. Rep. Steve Israel (D-N.Y.)
has introduced H.R. 4376, the Freedom From
Discrimination In Credit Act of 2009, which
would amend the Equal Credit Opportunity Act
to prohibit discrimination on account of sexual
orientation or gender identity when extending
credit. The bill was introduced on Dec. 16,
2009, with 44 co-sponsors, and was referred to
the House Committee on Financial Services.
District of Columbia — As expected, the District Council approved a same-sex marriage bill
on a second vote by 11–2, and it was signed by
Mayor Adrian M. Fenty on December 12, setting into motion a period during which the
measure is vulnerable to Congressional veto
before it can go into effect. In signing the measure, Fenty said, “Marriage inequality is a civil
rights, political, social, moral and religious issue in this country and many nations. As I sign
this act into law, the District, from this day forward, will set the tone for other jurisdictions to
follow in creating an open and inclusive city.”
The measure will not take effect until after the
Congressional review period — 30 legislative
days — has passed. Legislative days are days
when Congress is in session. Fenty expressed
confidence that a measure introduced by Republican opponents of same-sex marriage in
the House of Representatives to override the local legislation would not be brought to the floor
by the Democratic leadership. A lawsuit is
pending by opponents of the measure, seeking
to have a court order the District to hold a referendum on the issue of same-sex marriage.
Washington Post, Dec. 13.
Georgia — The city council in Chamblee, a
city in DeKalb County, Georgia, approved a
resolution banning sexual orientation discrimination in city employment, following the lead of
January 2010
several other Georgia municipalities: Atlanta,
Clarkston, Decatur and Doraville. The measure
passed unanimously in November, according to
a Dec. 15 report in the Atlanta Journal and
Constitution.
New York — After much drama and angst,
the marriage equality bill came to a vote in the
New York State Senate and was defeated by a
wider margin than expected, 28–34. The chief
sponsor of the bill, Senator Thomas J. Duane
(D-Manhattan), had claimed to have commitments from enough Republican Senators to put
the bill over the top despite the lack of support
from a handful of Democrats. In the event, however, as it appeared that there would not be
enough votes to pass the bill, the Republicans
all deserted Duane and even some Democrats
who had been considered possible “yes” votes
ended up voting against the measure. Thus only
Democrats voted for the bill, and Duane denounced the betrayal by those who had given
private commitments, although he did not publicly name any names. There was some talk of
trying to bring the bill back in the next session
of the legislature, and gay rights political and
lobbying groups announced that they would focus on electing more Democrats to the Senate
who were willing to campaign on a platform of
supporting marriage equality, which means, in
effect, that these groups will have to play a determined role in recruiting and campaigning for
Democratic primary challengers to some relatively well-entrenched incumbent Senators.
North Carolina — Mecklenburg County
commissioners followed the lead of local legislators in Chapel Hill, Carrboro, Durham,
Greensboro and Durham and Orange Counties,
voting 6–3 along party lines on December 15 to
extend domestic partner benefits to municipal
employees in same-sex relationships. The next
open enrollment period in the county’s employee benefits program, next fall, will provide
the first opportunity for employees to enroll
their same-sex partners, with benefits going
into effect in 2011. Republicans on the commission all voted against the proposal, arguing
that it could violate state laws against cohabitation. (Of course, state laws against cohabitation
would most likely be unconstitutional under
Lawrence v. Texas, but one suspects that decision is not popular among Republican county
commissioners in North Carolina.) Most of the
other North Carolina communities offer benefits to both same-sex and opposite-sex cohabiting partners, but Mecklenburg decided to restrict the benefits to same-sex partners who
may not marry under state law. Charlotte Observer, Dec. 16.
Ohio — The Akron City council voted 11–2
on November 30 to amend the city’s nondiscrimination ordinance to bar discrimination
in employment and housing on the basis of sexual orientation and gender identity. Mayor Donald Plusquellic, a supported of the measure,
7
promptly signed it into law. Employers, employment agencies and city contractors are all
bound by the measure. However, the measure
provides that “gender identity within this chapter 34 shall not apply to or be contained in public contracts for the provision of services to minor children under the age of eighteen,” and
that neither sexual orientation nor gender identity would “apply to or be contained in public
contracts with religious organizations.” BNA
Daily Labor Report No. 234, A–7 (Dec. 9,
2009).
Texas — The el Paso City Council unanimously rejected a citizen-initiated ordinance
that would have eliminated health insurance
benefits for unmarried same-sex and oppositesex partners of city employees on December 8.
A motion to reject the ordinance by Representative Ann Morgan Lilly was passed without
discussion or public comment. The council approved a policy change to extend such benefits
in August, and it was to go in effect in January
2010. As of December 9, 22 city employees had
applied for partner coverage.
Utah — Salt Lake County has followed the
lead of Salt Lake City by enacting ordinances
banning discrimination on the basis of sexual
orientation and gender identity in December,
modeled on ordinances previously enacted by
Salt Lake City in November. The measures
passed with unanimous support from both
Democrats and Republicans on the County
Council. Deseret Morning News, Dec. 16.
A.S.L.
Law & Society Notes
OPM Hangs Tough on Benefits Denial — The
federal Office of Personnel Management is persisting in the position that it is forbidden from
complying with a ruling by 9th Circuit Chief
Judge Alex Kozinski that a lesbian attorney employed by the federal courts in that circuit is entitled to have her legal wife added as a spouse to
the insurance plan provided by the courts to
their employees. OPM is taking the position
that a ruling by Judge Kozinski sitting in his capacity as a member of the circuit’s grievance
procedure panel is not binding on the executive
branch and does not enjoy the status of a real judicial opinion. It will be interesting to see
whether Judge Kozinski will attempt to hold in
contempt one of the highest-ranking openlygay members of the Obama Administration, the
head of the OPM, John Berry, for refusing to
comply with his order. He has already ruled that
by failing to perfect an appeal to his prior order,
OPM had waived its right to seek further review.
California — John Perez, an openly gay Latino Democratic Assemblymember representing Los Angeles, has been selected by his colleagues to be the Speaker of the California
Assembly. As such, he will be the highest-
8
ranking openly gay state legislator in the country, presiding over a legislative chamber of the
most populous state. The formal election to
confirm the choice of the Democratic caucus in
the Democrat-controlled chamber was to be
held upon the convening of the legislature in
January, and was imminent as this is being written. SFGate.com, Dec. 11, 2009.
Louisiana — Mayor Cedric B. Glover of
Shreveport, Louisiana, issued an executive order expanding the city’s policy of nondiscrimination to include sexual orientation
and gender identity. The Order took immediate
effect and is applicable to all appointed, classified and unclassified city personnel, full and
part-time, including employees of the police
and fire departments, according to a report in
U.S. Federal News on Dec. 17.
Maryland — Responding to a vigorous lobbying campaign by transgender rights advocates, Maryland officials have put a hold on a
new policy that would have required effective
January 1 that Marylanders seeking a change of
gender identification on their driver’s licenses
present a court order or officially amended
birth certificate. Under the policy in place
since 2000, such drivers’ license changes had
been made available upon certification by a licensed physician or psychologist that the individual was effecting gender transition. The
problem identified by advocates is that individuals undergoing transition need the new
identification at a point in the process earlier
than they could obtain a court order. Courts normally require evidence of permanent medical
alteration before they will issue such an order,
but under prevailing standards for treatment of
gender dysphoria an individual must spend
considerable time living as a member of the desired gender before such medical procedures
will be approved. Thus, the transitioning individual will groom and dress in their desired
gender and will need appropriate governmentissued ID in the form of a driver’s license to
deal with the requirements of everyday life
where identification might be demanded, especially by law enforcement officials, well before
they can obtain the medical treatments that are
prerequisite to a court ordered change on their
birth certificate or declaration of gender identity. Baltimore Sun, Dec. 31.
Minnesota — The United States Senate has
confirmed President Obama’s appointment of
Minneapolis Assistant Police chief Sharon
Lubinski to be the United States Marshall for
the U.S. District of Minnesota. Lunbinski thus
becomes the first openly-gay person to be confirmed to be a U.S. Marshall. The Marshalls’
Service is responsible for federal courthouse
security, witness protection, and the apprehension of federal fugitives. Lubinski is a native of
Green Bay, Wisconsin, and served as a sheriff’s
deputy in that state before joining the Minnea-
January 2010
polis police department. Associated Press, Dec.
28, 2009.
New York — N.Y. City Comptroller William
C. Thompson, Jr., released his annual report on
the results of shareholder proxy resolution activity by the N.Y.C. Pension Fund, one of the nation’s largest shareholders. According to the
Nov. 30, report, nine companies agreed to adopt
an explicit prohibition against workplace discrimination based on sexual orientation in response to shareholder resolutions introduced
by the NYC Fund, and ten companies that already banned sexual orientation discrimination
agreed to add gender identity to their policies.
At one company where the proposal on gender
identity was put to a shareholder vote, D.R.
Horton, it carred with 54.2% of the shares cast
supporting the proposal. U.S. Federal News,
Dec. 1.
Episcopal Church — The recent election by
the Diocese of Los Angeles of an openly-lesbian
woman who lives in a long-term relationship
with her same-sex partner, Mary Glasspool, to
be a bishop in their diocese has caused consternation in various parts of the international Anglican Communion, already in turmoil after the
election of an openly-gay man to be Bishop of
New Hampshire in 2003. The head of the Anglican Communion, Archbishop of Canterbury
Rowan Williams, released a statement on December 6: “The election of Mary Glasspool by
the diocese of Los Angeles as suffragan
biship-elect raises very serious questions not
just for the Episcopal Church and its place in
the Anglican Communion, but for the communion as a whole,” he said. Glasspool is the first to
be elected to high church office since the Episcopal Church decided in July 2009 to open all
levels of church service to gays and lesbian living in committed relationships. The election, in
the face of warnings from Williams against
making such a move, may presage a final split
between the U.S.-church and the U.K.-based
Anglican Communion, many of whose member
churches in the Third World are extremely homophobic. Christian Century, Dec. 29.
Texas — On December 12, votes in Houston,
Texas, the nation’s fourth largest city, elected
openly-lesbian city controller Annise Parker to
be the next Mayor of the city, rejecting the candidacy of former city attorney Gene Locke. Although openly-gay mayors have been elected in
other cities, Parker’s election was seen as historic because it took place in one of the nation’s
largest cities in a state that has been, on balance, relatively hostile to gay people in terms of
its legal regime. It was a Texas anti-gay sodomy
law that was struck down by the U.S. Supreme
Court as recently as 2003, in Lawrence v. Texas,
and the state has elected two successive conservative Republican governors (George W.
Bush and Rick Perry) and is represented by
conservative Republican senators and mainly
conservative Republican house members. Al-
Lesbian/Gay Law Notes
though Locke did not expressly raise Parker’s
sexual orientation as a campaign issue, antigay social conservatives flooded the city with
anti-gay campaign literature in an attempt to
defeat her when she emerged as the favorite to
win the run-off. Parker took office on January 1.
Chron.com, Dec. 13, 2009. A.S.L.
U.K. Appeals Court Holds That Anti-Discrimination
Obligation Trumps Individual Religious Belief.
The Court of Appeal (Civil Division), hearing
an appeal from the Employment Appeal Tribunal in the case of Lillian Ladele, who was employed by the London Borough of Islington as a
registrar of births, marriages and deaths, beginning in 2002, ruled that Ms Ladele was obliged
to fulfill her duties as a marriage registrar despite her religious objections to same-sex civil
partnerships. Ladele v. London Borough of Islington, [2009] EWCA Civ. 1357 (Dec. 15,
2009). When the U.K. enacted a law authorizing civil partnerships for same-sex couples, the
local authorities determined that the registrars
of births, marriages and deaths who served as
civil officiants for weddings would also serve
that role for the civil partnerships. Ms. Ladele,
asserting her religious objection to having anything to do with legally uniting same-sex couples, argued that she should be exempted due to
her religious belief. After all, she argued, under
European Human Rights Law and English law,
freedom of religious belief is protected.
Ms. Ladele’s stand induced tension with her
fellow registrars, especially some of whom were
gay and complained formally that her refusal to
perform such ceremonies was discriminatory.
The complaints led to formal proceedings, and
a ruling by an Employment Tribunal that the
employer was guilty of discrimination on
grounds of religious belief by requiring her to
perform such ceremonies. The local authorities
appealed to the Employment Appeal Tribunal,
which set aside that determination, deciding
rather that allowing Ms. Ladele to refuse services to same-sex couples would violate the
overriding policy of non-discrimination. The
position of the Appeal Tribunal, affirmed by the
Court of Appeal, was that employees are free to
believe what they like, but as civil servants they
are obligated to carry out their lawful functions
without discrimination on the basis of sexual
orientation against members of the public entitled to access their services.
The court endorsed the Appeal Tribunal’s
determination that the Employment Tribunal’s
finding of discrimination against Ms. Ladele
was “quite unsustainable.” As the Appeal Tribunal had stated, Ms. Ladele’s complaint “is
not that she was treated differently from others;
rather it was that she was not treated differently
when she ought to have been,” i.e., a failure to
accommodate her religious beliefs. The court
found that local officials were not motivated by
Lesbian/Gay Law Notes
Ladele’s religious beliefs in taking action
against her, but rather by her refusal to perform
“her assigned civil partnership duties.” Thus,
it was not a case of direct discrimination, but
rather “indirect discrimination” in the sense
that requiring her to perform her duties would
burden her religious belief as it was expressed
through her refusal to perform an assigned job
duty.
The crux of the decision may be found in the
following quotation from the Court of Appeals’
opinion, at paragraph 46: “Islington wished to
ensure that all their registrars were designated
to conduct, and did conduct, civil partnerships
as they regarded this as consistent with their
strong commitment to fighting discrimination,
both externally, for the benefit of the residents
of the borough, and internally in the sense of relations with and between their employees. I
find it very hard to see how this could be challenged, either as being Islington’s actual aim, in
the light of the evidence, or as being a legitimate aim, in the light of Islington’s Dignity for
All policy, current legislation and mainstream
thinking.”
In other words, in the U.K., and in the borough of Islington, the commitment to nondiscrimination on grounds of sexual orientation
in government services is firmly established,
what under U.S. law might be called a “compelling state interest,” and would take priority over
the individual religiously-based objections of
public employees assigned on a routine basis to
perform government services. This is confirmed in paragraph 55 of the opinion: “This
appears to me to support the view that Ms. Ladele’s proper and genuine desire to have her religious views relating to marriage respected
should not be permitted to override Islington’s
concern to ensure that all of its registrars manifest equal respect for the homosexual community as for the heterosexual community.” The
court found this view consistent with the U.K.’s
treaty obligations under the European Convention as well as national and local law.
The court concluded that “it is simply unlawful for Ms. Ladele to refuse to perform civil partnerships. It is also hard to resist the conclusion
that this means that Islington had no alternative
but to insist on her performing such duties together with their other registrars.” The court
did note that some other local jurisdictions had
taken a different path, refraining from assigning
objecting officials from performing such ceremonies in order to avoid confrontations, and
stated that they were free to do so, but that Islington was totally within its rights to impose a
uniform job assignment on all its registrars
since no such accommodation was required by
the law. A.S.L.
January 2010
Other International Notes
Roman Catholic Church — Participants in an
International Human Rights Day event held at
the United Nations in New York on Dec. 10
were reportedly “stunned” when a representative of the Catholic Church delivered a statement on behalf of the Church stating opposition
to “discriminatory penal legislation against homosexual persons” and apparently calling for
respect for the human rights of gay people. The
Holy See stated: “As stated during the debate of
the General Assembly last year, the Holy See
continues to oppose all grave violations of human rights against homosexual persons, such
as the use of the death penalty, torture and other
cruel, inhuman and degrading punishment.
The Holy See also opposes all forms of violence
and unjust discrimination against homosexual
persons, including discriminatory penal legislation which undermines the inherent dignity of
the human person. As raised by some of the
panelists today, the murder and abuse of homosexual persons are to be confronted on all levels, especially when such violence is perpetrated by the State. While the Holy See’s
position on the concepts of sexual orientation
and gender identity remains well known, we
continue to call on all States and individuals to
respect the rights of all persons and to work to
promote their inherent dignity and worth.” The
statement was submitted by Rev. Philip J. Bene,
JCD, Legal Attache, Permanent Observer Mission of the Holy See to the United Nations. It
sparked optimistic speculation that the Catholic Church would no longer actively oppose
civil legislation banning discrimination on the
basis of sexual orientation and gender identity.
One immediate stimulus for the statement being issued may have been international concern about draconian anti-gay penal legislation
reportedly being considered by the Ugandan
Parliament at the instigation of Christian ministers.
Europe — Gay internet journalist Rex Wockner reports that the European Union’s Treaty of
Lisbon, which came into force on December 1,
incorporates the European Union’s Charter of
Fundamental Rights, which he characterizes as
“the only international government document
that bans discrimination based on sexual orientation” in its Article 21. Three member countries had opted out of the Charter — the United
Kingdom, Poland, and the Czech Republic —
but are now presumably bound to its provisions
as a result of the Treaty of Lisbon. The treaty enhances the authority of the European Parliament and makes the European Union as an entity a signatory to the European Convention on
Human Rights, which means all nations party
to the treaty can be sued in that court for violation of human rights. In recent years the European Convention has been construed by the
European Court of Human Rights in several
9
important cases advancing gay and transgender
rights. It will be interesting to see whether the
more recalcitrant members of the European
Community, such as Poland, will reform their
attitudes towards gay rights as a result of the
Treaty coming into force.
Argentina — Disappointed when a federal
judge barred their marriage in Buenos Aires
despite the willingness of local officials to allow
it, Alex Freye and Jose Maria di Bello went
forum-shopping and found a pro-gay marriage
governor in Tierra del Fuego, at the southern tip
of the country, who was willing to officiate at
their ceremony, which was held on December
28. Thus, they become the first legally-married
same-sex couple in Latin America, because the
legislative developments in Mexico City (see
below) were not set to take effect until later. El
Pais, Dec. 30.
Australia — The Herald Sun reported on
Dec. 29 that the Refugee Review Tribunal has
overturned a decision to deport a Pakistani
pre-operative transsexual, on grounds that if returned to Pakistan the individual might be the
target of an honor killing by family members
and could be forced into prostitution for support. The Immigration Minister had refused to
grant a protection visa to the Pakistani, because
the transsexual’s partner had assisted her in
obtaining a fake Australian passport. In overturning that decision, the Tribunal stated: “The
tribunal accepts his evidence that he has experienced death threats and harassment by Pakistani people including members of his own
family, and that he now lives in constant fear of
such threats and harassment. The applicant
fears that he will be the victim of an honour killing if he returns to Pakistan.”
Australia — The Sydney Morning Herald reported on Dec. 30 that the Family Court of Australia had upheld a decision on parenting orders for an estranged lesbian couple. Although
the Federal Magistrate’s Court had ruled the
non-biological mother could not be considered
a legal parent of the child, nonetheless that
court had ordered visitation on her behalf, and
the Family Court has upheld that determination.
Australia — The Australians Capitol Territory Legislative Assembly passed legislation in
November allowing same-sex couples to have
legally binding partnership ceremonies. In December, the Assembly passed additional legislation, amending the earlier measure to placate
the Federal government, which had threatened
to block the measure from going into effect. Under the amendments, same-sex couples can
still have the ceremonies but will have to notify
the Registrar General, an extra step beyond
what is required of opposite-sex couples having
a marriage ceremony. The Australian Christian
Lobby continues to criticize the legislation,
stating that it mimics marriage and that by accepting it the Federal Government has betrayed
10
the Christian community. ABC Premium News,
Dec. 10.
Austria — The Parliament passed legislation
on December 10 that will allow same-sex couples to enter civil unions that will carry many,
but not all, rights of marriage. The measure was
to take effect January 1, 2010. The final vote
was 110–64. The right-wing Freedom Party
criticized the measure, saying it goes too far towards marriage. The left-wing Greens, on the
other hand, criticized it for being too limited.
Among other differences from marriage, the bill
formally bans the adoption of children by
same-sex couples, or donor insemination for
same-sex couples, and will not allow the recording of civil unions in the same registry as
marriages. The legislation also received a
mixed reception from gay leaders, some hailing
it as progress while others condemned it as setting up a separate and inferior status for samesex partners in violation of European Community equality principles. Associated Press, Dec.
11.
Canada — The Guelph Mercury (Dec. 3) reports that Justice E.C. Wilson of the Court of
Queen’s Bench has rejected ruling by the Alberta Human Rights Commission that an antigay letter by Stephen Boissoin, a former pastor,
published in the Red Deer Advocate constituted
a hate crime. The Commission had opined that
the letter would stir up hatred against homosexuals, and speculated that its publication had
played a role in the beating of a gay teenager
two weeks after it was published. The commission had ordered Boissoin to refrain from disparaging homosexuals publicly and to pay
damages to the complainant in the case, a Red
Dear high school teacher, Darren Lund, in the
amount of $5,000Canadian. Justice Wilson rejected the ruling on grounds of freedom of
speech protected by the Canadian Charter of
Rights, finding that Boissoin was entitled to
publish his opinion that, as the newspaper summarized it, “gays were as immoral as pedophiles, drug dealers and pimps.”
China — The Legislative Council has
amended the domestic violence law in Hong
Kong to extend protection to same-sex couples,
effective January 1, according to a Dec. 17 report in the South China Morning Post. According to the report, “victims of violence in a
same-sex cohabitation relationship will be able
to seek civil remedies for violent acts and apply
for court injunctions to prohibit abusers from
entering or remaining in their residences. Currently these rights are only enjoyed by heterosexuals.” As part of the change in the law, the
statute’s title is being changed to “Domestic
and Cohabitation Relationships Violence Ordinance,” in order to avoid criticism that the
change would amount to legal recognition of
same-sex relationships.
Honduras — The gay community in Honduras was shaken by the murder of Walter Tro-
January 2010
chez, an HIV+ gay rights activist whose death
was seen as part of a wave of anti-gay violence
in the country. Miami Herald, Dec. 21, 2009.
Iran — Investigative reporter Doug Ireland
reported in Gay City News on December 10 that
twelve men are threatened with execution for
sodomy in Iran.
Malawi — A couple of gay men who took the
risk of holding a public traditional engagement
ceremony in Malawi have suffered arrest and
likely prosecution under the country’s strict
anti-homosexuality laws, according to world
press reports. Prosecutors took action on the assumption that the men have engaged in homosexual intercourse, an said they would send the
men to a hospital for a medical examination to
obtain proof that they have had sex together.
The maximum penalty for consensual gay sex
in Malawi is 14 years in prison.
Mexico — On December 21, the Mexico City
legislature voted to authorize same-sex marriages. The measure was officially published on
December 29, and goes into effect in March.
The city’s tourism secretary, Alejandro Rojas,
predicted that as a result, “Mexico City will become a center, where people from all over the
world will be able to come and have their wedding, and then spend their honeymoon here.”
Rojas said his office was already in talks with
tourism companies about creating package
deals to compete with other major cities where
same-sex marriage has become available. The
National Action Party of Mexican President Felipe Calderon is opposed to the Mexico City action and has vowed to challenge it in the courts.
Associated Press, Dec. 30. The Mexico City officials have shown themselves to be better capitalists than the majority of the New York State
Senate, which decided to forfeit the economic
benefits of adding gay marriage tourism to the
state’s attractions when it voted against a marriage equality bill in the midst of a struggle to
deal with a massive state revenue deficit. Unlike the Mexico City legislators, New York State
Senators were incapable of connecting the dots.
Pakistan — In many countries, a national
identification card is a necessity to carry on
everyday life, and such cards routinely identify
the bearer as male or female. This has proved
burdensome for transsexuals and transvestites,
people whose outward appearances diverges
from the official gender recorded on their cards
and thus gets them into all kinds of difficulties.
Last year, the government of India declared that
for purposes of voting it would recognize a third
option for gender identification, so as not to disenfranchise such individuals. On December
24, 2009, the Supreme Court of Pakistan issued
an order requiring that nation’s government to
recognize a third gender to accommodate the
country’s “hijra” community, comprising
transsexuals, transvestites, and eunuchs. Pursuant to this order, people identifying as hijra
will have an option to indicate the same on their
Lesbian/Gay Law Notes
official identification cards. Chief Justice Iftikhar Chaudjhry’s opinion for the court also
warned that hijra’s inheritance rights must be
respected, and that police harassment would
not be permitted. PoliticsDaily.com, Dec. 25.
Peru — Press sources have reported that the
Constitutional Court of Peru ruled 3–2 recently
that gay Peruvians are entitled to serve in the
armed forces and the police. The ruling came in
a case arising from the expulsion of a gay student from the country’s police academy. According to press reports, the court declared that
a “sexual option cannot be a prerequisite or
precondition to determine capacity or professional ability… To sustain [something like] this
is not only anachronistic, but attempts against
the principle of human dignity.” Press reports
were posted to the internet by Andres Duques, a
frequent reporter on LGBT legal developments
in Latin America.
Rwanda — AllAfrica.com (Dec. 19) reports
that Minister of Justice Tharcisse Karugarama
had issued a statement denying reports circulated by various Human Rights organizations
that the nation’s Parliament was to vote on a new
law criminalizing consensual homosexual conduct. The reports had indicated such a vote
would take place on December 16, but Karugarama denied that anything like that occurred in
the Parliament on that date. Although some
anti-gay forces had introduced such a legislative proposal, Karugarama stated that the government had “no intentions whatsoever to
criminalize homosexuality,” stating that sexual
orientation is a private matter, not a state business.
Uganda — Various international bodies responded with outrage to reports that Uganda
was poised at the instance of various selfdescribed Christian ministers to enact draconian anti-gay statutes imposing severe penalties for sodomy, and also imposing criminal
penalties on any person who failed to report to
law enforcement officers about offenses by homosexuals. Over the course of November and
December a variety of comments emanated
from government figures in that country either
denying or confirming that such measures were
contemplated. At month’s end, it was uncertain
exactly what was happening, but the U.S. State
Department issued a condemnation of the reported legislative proposals, as did various international bodies. A.S.L.
Professional Notes
Lambda Legal has announced the appointment
of M. Dru Levasseur as a transgender rights attorney. Levasseur, formerly a staff attorney at
the Transgender Legal Defense & Education
Fund, is a former member of the LGBT Bar Association of Greater New York Foundation
board of directors, and is active with the LGBT
Rights Committee of the New York City Bar and
Lesbian/Gay Law Notes
the Legal Issues Committee of the World Professional Association for Transgender Health.
Levasseur initiated LeGaL’s Transgender Committee. Levassuer is a graduate of Western New
England College of Law.
Simone Bell, a former staff attorney at
Lambda Legal, was elected on December 1 to
represent Georgia House District 58 in the
Georgia State Assembly. As such, she becomes
for the first openly lesbian African-American
state legislator in the United States, according
to a press release issued by Lambda Legal on
Dec. 2 hailing her election.
The New York City Bar Association issued its
2009 Diversity Benchmark Report, indicating
that 124 law firms and corporate law offices
have now signed on to the diversity statement
pledging non-discrimination on the basis of
sexual orientation. Based on self-reporting by
January 2010
firms, the Report indicated that the percentage
of gay attorneys at firms increased from 2.3% in
2007 to 3.0% in 2009, although the Report admitted that the increase may just be due to more
attorneys self-identifying as gay when surveyed
by their firms. Although 94 firms participated
in the Association’s diversity survey, only 74%
of those firms indicated that they ask their attorneys about sexual orientation in their internal surveys. According to the report, the representation of openly gay attorneys at
participating firms had nearly doubled from
2004 to 2009. The report indicated that data
gathered by the National Association for Law
Placement, which surveys firms on their diversity efforts, indicated a similar trend, finding
that nationwide openly gay attorneys went from
less than 1.0% in 2002 to about 1.52% in the
most recent figures. “The large majority of
11
openly gay attorneys were disproportionately
represented in four major cities (e.g., Los Angeles, San Francisco, New York, and Washington),
according to NALP and the representation
across those four cities was 2.8%.” Openly gay
attorneys make up a larger percentage of law
firm associates than law firm partners.
The Chicago Tribune reported on December
6 that a group of openly gay and lesbian Cook
County, Illinois, judges have formed the Alliance of Illinois Judges, encompassing 15
openly lesbian or gay male judges in the county,
which comprises the city of Chicago. Sebastian
Patti, an Illinois Appellate Court justice, told
the newspaper that he sees the organization as a
“trade association.” The newspaper reported
the claim that with 15 openly gay judges, Chicago had the highest concentration of openlygay judicial officials in the country. A.S.L.
AIDS & RELATED LEGAL NOTES
AIDS Litigation Notes
Federal — Georgia — In McDaniels v. Lee,
2009 WL 5125372 (S.D.Ga., Dec. 28, 2009),
U.S. District Judge J. Randal Hall adopted a report and recommendation by U.S. Magistrate
Judge W. Leon Barfield concluding that the
plaintiff, an HIV+ state inmate, had not been
deprived of medical treatment in violation of
his 8th Amendment rights. The plaintiff, who
was diagnosed as HIV+ in 1993, answered
“no” when he was asked whether he had any
medical problems on his intake booking in June
2008. He did not subsequently mention that he
was HIV+ until his 14–day check-up, and then
was provided with follow-up and medication
soon after his blood lab-work was received by
the medical staff. (He initially refused to
authorize access of his civilian medical records.) He was found to have dangerously low tcells and elevated viral load and was placed on
a medical regime which eventually raised his
t-cell count and significantly lowered his viral
load. In his lawsuit, he claimed that the 37–day
delay from the time he was booked in the jail
until he began receiving medication violated
his 8th Amendment rights, but the court found
that he was responsible for most of the delay,
and expert testimony from the treating physicians indicated that the delay had not cause any
particular harm to him, especially as he had
told the doctor that he had not been taking any
HIV-related meds for 4–5 years prior to his admission to the jail.
Federal — Maryland — In Boulware v. Tessema, 2009 WL 3806401 (D. Md., Nov. 12,
2009), U.S. District Judge William M. Nickerson granted defendants’ motion to dismiss an
8th Amendment suit brought by a state inmate
living with HIV who claimed deliberate indifference to his medical condition by the prison
authorities. The claim, filed on the plaintiff’s
behalf by another inmate, alleged that plaintiff
was dying, that “medical care providers refused to address his complaints regarding the
HIV medication causing vomiting, abdominal
pain, loss of appetite, weight loss, headaches
and rash. He further states he requested to see a
specialist at Johns Hopkins Hospital to address
his intolerance for the HIV medication, but his
request was denied.” The plaintiff sought injunctive relief and monetary damages. The defendants’ response was that plaintiff was not
dying and was non-compliant with his treatment regime, refusing medications that were offered to him. This led to his transfer to the Correctional Mental Health Center. Defendants
also denied plaintiff’s allegation that they had
disclosed his HIV status to other inmates.
Nickerson found that defendants “have provided Plaintiff with medication, dietary
changes, and the opportunity to comply with
medical orders to treat his illnesses. His noncompliance with medical directives is well
documented. His allegations that his illness
may be treated more effectively at another outside facility is simply an insufficient basis for a
finding of deliberate indifference to a serious
medical need. Mere disagreement with the
treatment provided is not a basis for an Eighth
Amendment violation.” Nickerson concluded
that “it was Plaintiff’s own refusal to cooperate
with staff that has stood in the way of ongoing
medical care for his serious medical needs. The
Eighth Amendment claim must fail.” Reading
this opinion is frustrating. The defenses proffered seem non-responsive to the nature of the
complaint. Plaintiff was not complaining that
he was not being offered medication, but rather
that he had serious adverse effects to the medication he was being offered, causing him, apparently, to stop taking it, but that the prison
medical providers did not present him with alternatives and refused his request to let him see
a specialist to figure out a medical regimen he
could tolerate. As such, the court appears to
have missed the point in throwing out the case.
This does not appear to be a simple disagreement about desirable treatment modalities.
One reads such opinions in sorrow.
Federal — Michigan — In Holder v. Palmer,
588 F.3d 328 (6th Cir., Dec. 9, 2009), the court
of appeals affirmed a ruling by a federal district
judge that an HIV+ defendant convicted of
sexually penetrating an uninformed partner
had not been denied an impartial and biased
jury when the trial judge impaneled five jurors
who had expressed bias against interracial relationships during voir dire. Petitioner is
African-American, and was accused of having
sex with Caucasian women without disclosing
his HIV+ status to them. The court notes that
each of the jurors “stated under oath and on the
record that they could set aside their opinions
and decide the case on the evidence despite
their views on interracial relationships.” Defense counsel did not challenge the seating of
any of these jurors at trial. The petitioner argued that he had received ineffective assistance of counsel, but the court pointed out that
both his counsel and the trial judge had closely
questioned the potential jurors, and that Holder
had provided “no reason to doubt the validity of
the jurors’ assurances.” Circuit Judge Karen
Nelson Moore dissented, stating “Because I believe that at least three of the impaneled jurors
showed actual bias and that their assurances of
impartiality should not have been believed, I
would hold that Holder’s trial counsel’s failure
to challenge the seating of these jurors constituted ineffective assistance of counsel and that
Holder is entitled to a writ of habeas corpus.”
She argued that in rejecting Holder’s appeal the
Michigan Court of Appeals had applied a rule
contrary to clearly established Supreme Court
12
precedent, and thus Holder was entitled to de
novo review of his claim by the federal court.
State — California — Los Angeles County
Superior Court Judge David Yaffe reportedly
rejected a demand by the AIDS Healthcare
Foundation that Los Angeles County crack
down on unprotected sex in the pornography industry. According to a complaint filed in Judge
Yaffe’s court over the summer, there were more
than 3,700 cases of sexually transmitted diseases reported in the “adult” industry over the
preceding five years. According to news reports, Yaffe commented that it was up to County
health officials, not the court, to determine how
to oversee public health issues. The Associated
Press reported on December 23 that the foundation plans to appeal Yaffe’s decision. A.S.L.
Social Security Disability Cases
Florida — In Gibson v. Astrue, 2009 WL
5067757 (M.D.Fla., Dec. 15, 2009), U.S. Magistrate Gary R. Jones issued an order affirming
the decision of the Commission to deny disability benefits to the plaintiff, a person living with
full-blown AIDS, on the ground that substantial
January 2010
evidence in the record supported the Administrative Law Judge’s decision that the plaintiff
was not disabled within the meaning of the
benefits law, because she retained the residual
functional capacity to perform the cashier job
that she had been doing prior to her AIDS diagnosis. Magistrate Jones noted testimony that
plaintiff was receiving treatment and doing
well, and found that the testimony concerning
the side-effects of her medication did not prove
she was disabled from gainful employment.
A.S.L.
International AIDS Notes
Obama Administration Global AIDS Priorities
Criticized — AIDS advocates have voiced criticism that the new focus of the U.S. Global AIDS
plan seems to be aimed at diverting funding
from treatment to prevention, and that prevention efforts will be diluted by focusing on a host
of medical conditions, not just HIV. Dr. Eric
Goosby, the Global AIDS Coordinator and chair
of the President’s Emergency Plan for AIDS
Relief (Pepfar), denied the charges, insisting
that more people will be provided with treat-
Lesbian/Gay Law Notes
ment each year under the administration’s refocused plan. However, the New York Times reported on Dec. 9 in an article detailing the
controversy that the proposed five-year strategy
of the draft plan distributed on World AIDS
Day, December 1, and subsequently supplemented with additional materials on December
7, indicated a slower rate of growth in the
number of individual targeted for treatment assistance, when compared to the rate of annual
growth during the Bush Administration. The
plan suggests that spending more on prevention
is a better allocation of resources.
United States to Host 2012 International
AIDS Conference — At a State Department
Ceremony on Dec. 1 marking World AIDS Day,
Secretary of State Hillary Rodham Clinton announced that the 19th annual International
AIDS Conference would be held in Washington, D.C. Such international conferences have
not been held in the United States since a ban
on entry of HIV+ travelers into the country was
enacted early in the AIDS epidemic by a panicked and homophobic majority in Congress.
The recent repeal of the HIV travel ban makes
holding such a conference in the United States
possible. A.S.L.
PUBLICATIONS NOTED
LESBIAN & GAY & RELATED LEGAL ISSUES:
Bold, Fredric J., Jr., Vows to Collide: The Burgeoning Conflict Between Religious Institutions
and Same-Sex Marriage Antidiscirmination
Laws, 158 U. Pa. L. Rev. 179 (Dec. 2009).
Brennan, Patrick McKinley, The Place of
“Higher Law” in the Quotidian Practice of
Law: Herein of Practical Reason, Natural Law,
Natural Rights, and Sex Toys, 7 Georgetown J.
L. & Pub. Pol’y 437 (Summer 2009).
Brown, Andrew C., International Adoption
Law: A Comparative Analysis, 43 Int’l Lawyer
1337 (Fall 2009).
Carter, Nate, Shocking the Conscience of
Mankind: Using International Law to Define
“Crimes Involving Moral Turpitude” in Immigration Law, 10 Lewis & Clark L. Rev. 955
(Winter 2006).
Chehardy, Kimberly N., Conflicting Approaches: Legalizing Same-Sex Marriage
Through Conflicts of Law, 8 Conn. Pub. Int. L.J.
301 (Spring/Summer 2009).
Clark, Laura M., Should Texas’s Former Ban
on Obscene-Device Promotion Pass Constitutional Muster Under a Murky Lawrence?, 41 St.
Mary’s L.J. 177 (2009).
Crocker, Thomas P., From Privacy to Liberty:
The Fourth Amendment After Lawrence, 57
UCLA L. Rev. 1 (Oct. 2009).
Darmer, M.K.B., and Tiffany Chang, Moving
Beyond the “Immutability Debate” in the Fight
for Equality After Proposition 8, 12 Scholar (St.
Mary’s Law Review on Minority Issues) 1 (Fall
2009).
Davis, George B., Personnel is Policy:
Schools, Student Groups, and the Right to Discriminate, 66 Wash. & Lee L. Rev. 1793 (Fall
2009).
Davis, Peggy Cooper, Responsive Constitutionalism and the Idea of Dignity, U. Pa. J.
Const. L. 1373 (July 2009).
Eriksson, Andrea, European Court of Justice:
Broadening the Scope of European Nondiscrimination Law, 7 I-Con [Int’l J. Const. L.] 731
(Oct. 2009).
Eskridge, William N., Jr., A Pluralist Theory
of the Equal Protection Clause, 11 U. Pa. J.
Const. L. 1239 (July 2009).
Gedicks, Frederick Mark, Atmospheric
Harms in Constitutional Law, 69 Md. L. Rev.
149 (2009) (treats the dignatory harm associated with denial of marriage by states that allow
civil unions and domestic partnerships as a
species of “atmospheric harm” for purposes of
constitutional analysis).
Gerards, Janneke, and Hanneke Senden,
The Structure of Fundamental Rights and the
European Court of Human Rights, 7 I-Con [Int’l
J. Const. L.] 619 (Oct. 2009).
Goldberg, Daniel S., And the Walls Came
Tumbling Down: How Classical Scientific Fallacies Undermine the Validity of Textualism and
Originalism, 39 Hous. L. Rev. 463 (Summer
2002).
Graham, Tiffany C., Exploring the Impact of
the Marriage Amendments: Can Public Em-
ployers Offer Domestic Partner Benefits to Their
Gay and Lesbian Employees?, 17 Va. J. Soc.
Pol’y & L. 83 (Fall 2009).
Green, Meredith E., Who Knows Where the
Love Grows?: Unmarried Cohabitants and Bystander Recovery for Negligent Infliction of
Emotional Distress, 44 Wake Forest L. Rev.
1093 (2009).
Greene, Beverly, The Use and Abuse of Religious Beliefs in Dividing and Conquering Between Socially Marginalized Groups: The
Same-Sex Marriage Debate, 64 J. Amer. Psychological Assoc’n 698 (Nov. 2009).
Harada, Nikko, Trans-Literacy Within
Eighth Amendment Jurisprudence: De/Fusing
Gender and Sex, 36 N.M. L. Rev. 627 (Summer
2006)(transgender prisoner legal issues).
Hart, Melissa, and Paul M. Secunda, A Matter of Context: Social Framework Evidence in
Employment Discrimination Class Actions, 78
Fordham L. Rev.37 (Oct. 2009).
Harvey, Kathryn J., The Rights of Divorced
Lesbians: Interstate Recognition of Child Custody Judgments in the Context of Same-Sex Divorce, 78 Fordham L. Rev. 1379 (Dec. 2009).
Hawkins, Brian, The Glucksberg Renaissance: Substantive Due Process Since Lawrence
v. Texas, 105 Mich. L. Rev. 409 (Nov. 2006).
Hayes, William Charles, “Rabbit” Hunting
in the Supreme Court: The Constitutionality of
State Prohibitions of Sex Toy Sales following
Lawrence v. Texas, 44 Fa. L. Rev. 245 (Fall
2009).
Lesbian/Gay Law Notes
Konnoth, Craig J., Created In Its Image: The
Race Analogy, Gay Identity, and Gay Litigation
in the 1950s–1970s, 119 Yale L.J. 316 (Nov.
2009).
Lash, Kurt T., Originalism as Jujitsu, 25
Const. Comment. 521 (Summer 2009) (review
of “Retained by the People: The Silent’ Ninth
Amendment and the Constitutional Rights
Americans Don’t Know They Have” by Daniel
A. Farber).
Majeed, Azhar, Defying the Constitution: The
Rise, Persistence, and Prevalence of Campus
Speech Codes, 7 Georgetown J. L. & Pub. Pol’y
481 (Summer 2009).
Maravilla, Christopher Scott, The Other
Don’t Ask, Don’t Tell: Adultery Under the Uniform Code of Military Justice After Lawrence v.
Texas, 37 Cap. U. L. Rev. 659 (Spring 2009).
Miller, Darrell A.H., State DOMAs, Neutral
Principles, and the Mobius of State Action, 81
Temple L. Rev. 967 (Winter 2008).
Morey, Maribel, The Civil Commitment of
State-Dependent Minors: Resonating Discourses That Leave Her Heterosexuality and His
Homosexuality Vulnerable to Scrutiny, 81
N.Y.U. L. Rev. 2129 (Dec. 2006).
O’Brien, David M., More Smoke Than Fire:
The Rehnquist Court’s Use of Comparative Judicial Opinions and Law in the Construction of
Constitutional Rights, 22 J. L. & Pol. 83 (Spring
2006).
Patterson, Charlotte J., Children of Lesbian
and Gay Parents: Psychology, Law, and Policy,
64 J. Amer. Psychological Assoc’n 727 (Nov.
2009).
Pozzuolo, Joseph R., and Lisa A. Leggieri,
Adapt Estate Planning Strategies to Fit the
Needs of Same-Sex Couples, 83 Tax Strategies
284 (Nov. 2009).
January 2010
Pull, Joseph A., Questioning the Fundamental Right to Marry, 90 Marq. L. Rev. 21 (Fall
2006).
Purvis, Dara E., Evaluating Legal Activism:
A Response to Rosenberg, 17 Buff. J. Gender, L.
& Soc. Pol’y 1 (2009) (re same-sex marriage).
Roy, Joseph A., Non-Traditional Activism:
Using Shareholder Proposals to Urge LGBT
Non-Discrimination Protection, 74 Brooklyn L.
Rev. 1513 (Summer 2009).
Schwin, Kevin, Toward a Plain Meaning Approach to Analyzing Title VII: Employment Discrimination Protection of Transsexuals, 57 Clev.
St. L. Rev. 645 (2009).
Segall, Eric J., Reconceptualizing Judicial
Activism as Judicial Responsibility: A Tale of
Two Justice Kennedys, 41 Ariz. St. L.J. 709 (Fall
2009)(criticizes Kennedy’s decision in Romer
v. Evans as irresponsible for mischaracterizing
the Colorado Supreme Court’s holding in the
case and failing to mention and deal with in
some way Bowers v. Hardwick).
Shiners, Eric, Keeping the Boss Out of the
Bedroom: California’s Constitutional Right of
Privacy as a Limitation on Private Employers’
Regulation of Employees’ Off-Duty Intimate Association, 37 McGeorge L. Rev. 449 (2006).
Simmonds, Kathleen, Reforming the Surrogacy Laws of Australia: Some Thoughts, Considerations and Alternatives, 11 Flinders J. L.
Reform 97 (June 2009).
Simmons, Omari Scott, Picking Friends From
the Crowd: Amicus Participation as Political
Symbolism, 42 Conn. L. Rev. 185 (Nov. 2009).
Solove, Daniel J., and Niel M. Richards, Rethinking Free Speech and Civil Liability, 109
Colum. L. Rev. 1650 (Nov. 2009).
Stein, Anya J., The Guarantee Clause in the
States: Structural Protections For Minority
13
Rights and Necessary Limits on the Initiative
Power, 37 Hastings Const. L.Q. 343 (Winter
2010).
Strasser, Mark, State Marriage Amendments
and Overreaching: On Plain Meaning, Good
Public Policy, and Constitutional Limitations,
25 Law & Ineq. 59 (Winter 2007).
Vartanian, Jessica R.,Confessions of the
Church: Discriminatory Practices by Religious
Employers and Justifications for a More Narrow
Ministerial Exception, 40 U. Toledo L. Rev.
1049 (Summer 2009).
AIDS & RELATED LEGAL ISSUES:
Brosteck, Major Derek J., Prosecuting an HIVRelated Crime in a Military Court-Martial: A
Primer, 2009–SEP Army Law. 29 (September
2009).
Leonard, Elizabeth Weeks, Right to Experimental Treatment: FDA New Drug Approval,
Constitutional Rights, and the Public’s Health,
37 J. L. Med. & Ethics 269 (Summer 2009).
Pollard, Deana A., Sex Torts, 91 Minn. L. Rev.
769 (Feb. 2007).
EDITOR’S NOTE:
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Law Notes are those of identified writers, and
are not official positions of the Lesbian & Gay
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