NEW YORK COURT OF APPEALS REJECTS CHALLENGES TO MARRIAGE RECOGNITION...

December 2009
NEW YORK COURT OF APPEALS REJECTS CHALLENGES TO MARRIAGE RECOGNITION DECISIONS
The New York Court of Appeals, the state’s
highest court, unanimously rejected two attempts by the Alliance Defense Fund, an antigay litigation group, to obtain invalidation of
actions by government officials authorizing recognition of out-of-state same sex marriages.
Godfrey v. Spano; Lewis v. N.Y.S. Dep’t of Civil
Service, 2009 WL (November 19). The case actually divided the court 4–3, although all of the
judges agreed on the result to reject the challenges. The majority was made up entirely of
judges appointed by former Governor George
Pataki, a Republican. The concurring group
was made up entirely of judges appointed by
Pataki’s predecessor, Mario Cuomo, a Democrat, and Pataki’s recent successors, Governors
Eliot Spitzer and David Paterson, both Democrats.
The majority decided to reject the challenges
based on narrow grounds of pleading rules and
statutory construction, refusing to take on the
broader question of marriage recognition for all
purposes while strongly urging the legislature
to address the issue.
One of the defendants, Andrew Spano, recently defeated for re-election as Westchester
County Executive, issued an executive order in
June 2006 directing all Westchester County
agencies “to recognize same-sex marriages
lawfully entered into outside the State of New
York in the same manner as they currently recognize opposite sex marriages for the purposes
of extending and administering all rights and
benefits belonging to these couples, to the
maximum extent allowed by law.” The Appellate Division (2nd Dept), the intermediate appellate court, upheld the order unanimously on
the ground that it did no more than to command
that agencies recognize such marriages as far as
the law would allow, and thus was actually more
symbolic than substantive.
Writing for the majority of the Court of Appeals, Judge Eugene F. Piggott, Jr., refused to
premise the court’s ruling on that ground. “We
find such language, which may appear either
expansive or restrictive depending on the
reader, ambiguous, and we would not encourage executive officials to try to insulate their orders from judicial review by this means.” Instead, the majority of the court pointed out that
LESBIAN/GAY LAW NOTES
in order to challenge this kind of executive policy, the plaintiff has to allege that the policy requires specific expenditures that are not otherwise authorized by law, and that Alliance
Defense Fund had failed to do so.
Spano had submitted an affidavit from his
commissioner of finance, stating that he could
think of “no instance where the County has expended funds or extended benefits in connection with [the] Executive Order.” “That statement is unsurprising,” wrote Judge Piggott, “in
that Westchester County already insured
same-sex domestic partners and dependents of
County employees before the Executive Order
was issued, requiring only that applicants for
domestic partner coverage have lived with their
domestic partners in a committed financially
interdependent relationship for at least a year.”
Piggott found that the affidavit “supports our
judgment that the conclusory nature of plaintiffs’ allegations is more than a matter of inartful
pleading.”
Thus, the court found the “lack of specificity
fatal to plaintiffs’ cause of action.”
Turning to the challenge to the September
2006 decision by the State Civil Service Commission to recognize same-sex marriages contracted elsewhere for purposes of eligibility for
spousal benefits administered by the commission, the court focused on the original legislation establishing the benefits program back in
the 1950s, under which the legislature delegated to the commission the task of establishing
specific eligibility criteria for benefits. The Appellate Division had been divided in its rationale for upholding the policy, a majority following the precedent established by another
Appellate Division panel upstate in Martinez v.
County of Monroe (4th Dept.), which ruled that
traditional New York marriage recognition
rules would provide for the recognition of
same-sex marriages contracted elsewhere. A
minority of the Appellate Division panel preferred to premise the ruling on finding that the
commission had not abused its discretion in expanding its eligibility rules as a matter of interpretation of the statute. Disavowing the need to
decide the broader marriage recognition issue
in this case, the Court of Appeals majority in-
December 2009
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, Esq. NYC; Alan J. Jacobs, Esq., NYC; Bryan Johnson, Esq., NYC; Daniel Redman, Esq., San Francisco; Stephen E. Woods,
NYLS ‘10; Eric Wursthorn, Esq., 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
©2009 by the LeGaL Foundation of the LGBT Law Association of Greater New York
ISSN 8755–9021
stead adopted the view of the concurring judges
in the Appellate Division.
“Because we can decide the cases before us
on narrower grounds,” wrote Judge Piggott, “we
find it unnecessary to reach defendants’ argument that New York’s common law marriage
recognition rule is a proper basis for the challenged recognition of out-of-state same-sex
marriages. We end,” he continued, “by repeating what we said in Hernandez v. Robles, expressing our hope that the Legislature will address this controversy; that it ‘will listen and
decide as wisely as it can and that those unhappy with the result – as many undoubtedly
will be – will respect it as people in a democratic state should respect choices democratically made.’”
Judge Carmen Ciparick, joined by Chief
Judge Jonathan Lippman and Judge Theodore
Jones, agreed with the majority that the challenges should be rejected, but argued that the
broader question of marriage recognition was
“squarely presented” by the two cases and that
the court should have answered it. “The effect
of the majority’s rationale in affirming these orders will be to permit an unworkable pattern of
conflicting executive and administrative directives promulgated pursuant to the individual
discretion of each agency head,” she wrote.
“We ought to avoid the confusion that would
arise from a same-sex couple being considered
legally married by one agency for one purpose
but not married by another agency for a different purpose.”
The most dramatic example of this, not mentioned by Judge Ciparick in her opinion, is the
continued refusal of the state tax department to
extend recognition to such marriages, despite
the directive issued by Governor Paterson in response to the Martinez ruling. As a result, while
many state agencies, such as the state insurance department, have complied with Paterson’s directive, the tax department has discouraged married same-sex couples from filing joint
returns and has inspired consternation and uncertainty among such couples regarding their
estate planning and property rights.
Most of Judge Ciparick’s opinion was devoted to reiterating the reasoning of the Appellate Division in Martinez, adopting the view of
that court that New York marriage recognition
rules would require government agencies in the
state to recognize such marriages because they
are not forbidden by any state laws and do not
fall within the “natural law” exception for cases
of incest or polygamy.
Because the Court did not rule on the merits
of the broader marriage-recognition issue, its
decision does not reverse the rulings by the Ap-
212
pellate Division panels on that question, and by
common New York practice they remain binding precedents within their departments even
though the Court affirmed the Appellate Division rulings on other grounds. Thus, as of now,
there is unanimity among the several Appellate
Division panels that have addressed the issue
of recognition of same-sex marriages from outof-state: they all hold that traditional New York
December 2009
marriage recognition rules would mandate recognizing such marriages, and such remains the
statewide precedent at the level of the Appellate Division.
Since the ruling by the Court of Appeals is an
authoritative determination on a matter of state
law, it is not subject to appeal further to the U.S.
Supreme Court. In both of the cases, same-sex
couples were allowed to intervene as co-
Lesbian/Gay Law Notes
defendants to represent the interests of married
same-sex couples in New York, and they were
represented in opposing the challenges by
Lambda Legal attorney Susan Sommer. Government attorneys Mary Lynn NicolasBrewster and Sasha Samberg-Champion represented the defendants, and attorney Brian
Raum argued for the Alliance Defense Fund.
A.S.L.
LESBIAN/GAY LEGAL NEWS
Two 9th Circuit Judges Rule Again on Benefits
for Same-Sex Spouses of Court Employees
On November 18 and 19, two judges of the U.S.
Court of Appeals for the 9th Circuit, sitting as
part of the Employment Dispute Resolution
(EDR) Plan for the federal courts in their circuit, responded to the impertinent move by the
federal Office of Personnel Management (OPM)
to interfere with the relief they had ordered earlier this year on behalf of gay employees of the
Circuit’s courts who sought to enroll their
spouses in the federal employee benefits plan
program. In both cases, employees of the court
had married their same-sex partners in California during the “window period” prior to the
passage of Proposition 8, and their marriages
are deemed valid in California pursuant to the
more recent California Supreme Court decision
construing the effect of Proposition 8 on
previously-contracted marriages.
On November 18, Judge Stephen Reinhardt
ordered that Brad Levenson, a deputy federal
public defender for the Central District of California, be compensated for the expense of obtaining equivalent insurance for his partner,
both retrospectively to the date he was denied
benefits and prospectively until such time
when he is allowed to enroll his husband. In the
Matter of Brad Levenson, 2009 Westlaw
3878233 (9th Cir. EDR, Nov. 18, 2009).
On November 19, Chief Judge Alex Kozinski
took things a step further and ordered that OPM
drop its opposition to enrolling Karen Golinski’s wife in the program, and that the insurer,
Blue Cross Blue Shield, enroll Golinski’s wife
for spousal benefits. Kozinski also joined Reinhardt in ordering compensation dating back to
the time when Golinski’s initial application was
denied. In the Matter of Karen Golinski, 2009
WL 4043529 (9th Cir. EDR, Nov. 19, 2009).
What was most interesting about the orders,
however, was how they took on the Executive
Branch on behalf of the circuit’s gay employees.
In the case of Judge Reinhardt, this involved
not only repeating his earlier explanation of
why the Defense of Marriage Act (DOMA) is
unconstitutional to the extent that it would
block this extension of benefits, but also demolishing the argument that the Justice Department (DOJ) has been making in the pending
DOMA challenge brought by Gay & Lesbian
Advocates & Defenders in the U.S. District
Court in Boston, Gill v. Office of Personnel Management. The DOJ, put in the position of defending a logically indefensible statute, concocted its “neutrality” argument. The argument
goes this way: In 1996, in the wake of the Hawaii Supreme Court’s same-sex marriage decision, Baehr v. Lewin, and the pending trial of
that case, Congress could have enacted DOMA
with the intention of keeping the federal government from getting embroiled in the controversial issue of same-sex marriage by preserving the “status quo70 of one definition of
marriage for all purposes of federal law, a definition that at that time matched the definition
used in fact by all the states. DOJ argues that by
adopting this uniform definition of marriage for
federal law, Congress was being “neutral” in
the midst of state-level controversy.
First, Reinhardt notes that this “post hoc justification would not survive the heightened
scrutiny that … likely applies to Levenson’s
claim.” (This refers to Reinhardt’s frequently
reiterated conclusion that this is an instance of
sex discrimination, which invokes heightened
scrutiny under existing precedent, and sexual
orientation discrimination, which he argues
should invoke heightened scrutiny.) “Even under the more deferential rational basis review,
however, this argument fails,” he continued.
“DOMA did not preserve the status quo vis-avis the relationship between federal and state
definitions of marriage; to the contrary, it disrupted the long-standing practice of the federal
government deferring to each state’s decisions
as to the requirements for a valid marriage.”
“Because state law governs marriage recognition,” he continued, “the only consistent definition that could be employed at the federal
level is the one that was in effect prior to
DOMA. At that point, a marriage recognized as
valid by the couple’s state of domicile was also
recognized as valid by the federal government.
DOMA replaced that consistency with a
marked inconsistency: under DOMA, a couple
can be legally married in their state of domicile
but not ‘married’ for purposes of receiving federal benefits.”
“Moreover, even if Congress could be said to
have an independent interest in remaining neutral with regard to a contentious social issue,
that is not what Congress did here. By enacting
DOMA, Congress affirmatively stepped into the
fray, and took the position that same-sex partners should not have access to federal benefits
no matter what legal status a state decides to accord their relationship. Congress thus sided
with those states that would limit marriage to
opposite-sex couples, and against those states
that would recognize the marriages of same-sex
couples. Taking that position did not further any
governmental interest in neutrality, if indeed
such an interest exists.”
As to the remedy for Brad Levenson, Reinhardt said it would be inappropriate to grant
Levenson’s petition to order the Federal Public
Defender program in the Central District of
California to make a contract with an insurance
company to provide coverage to Levenson and
his husband, because the only agency authorized by law to make such contracts for coverage
of federal employees and their families is the
Office of Personnel Management. The alternative relief Levenson sought, an order that he be
compensated for the expense of providing comparable insurance for his partner, did strike Reinhardt as feasible, so that is what he ordered,
remanding the case for the federal defender
program and Levenson to agree on an amount of
“back-pay” and a method for covering those
costs going forward. Reinhardt indicated that
he would retain jurisdiction of the case to resolve any disputes that might arise in implementing his order, even though he has rotated
out of the chairmanship of the dispute panel
that would normally hear future cases.
Unlike Reinhardt, who ruled that DOMA was
unconstitutional in this context, Judge Kozinski
had previously resolved Karen Golinski’s complaint by engaging in some creative interpretation of the statute governing federal employee
benefits, finding that it was feasible to interpret
it to allow benefits for the same-sex spouse of a
court employee. In revisiting the issue, and
having ordered back-pay relief to compensate
Golinski for the denial of benefits up to the
present, Kozinski turned to the question of prospective relief, finding that there are three options: (1) reissue his earlier order that Golinski’s wife be enrolled in the federal employee
benefits program, (2) order that she be paid the
amount necessary to secure comparable coverage for her wife going forward, or (3) do nothing,
Lesbian/Gay Law Notes
and let Golinski bill the government periodically for the continuing cost of covering her wife
through private insurance, to be enforced by
new grievances if the government refuses to
pay. Kozinski concluded that the only option
that would provide an appropriate remedy was
the first.
He concluded that the circuit’s employee
dispute program had the authority to order
OPM to cease interfering, as well as the authority to order that Golinski’s wife be enrolled in
the program. “For the discrimination she’s suffered in the past, I can offer Ms. Golinski only
money,” he wrote. “The remedy that’s ‘appropriate’ for the future, however, is enrollment of
Ms. Golinski’s wife into the same program an
opposite-sex spouse would enjoy. I see no justification for giving Ms. Golinski a lesser remedy
at substantial taxpayer expense when she can
have a full remedy at zero cost to the taxpayers.” The reference to “zero cost” comes because Golinski already has her children enrolled, so she is already receiving family
coverage. The group insurer that provides the
benefits for federal court employees in California would not charge the government any additional premium to add an employee’s spouse to
an existing family coverage enrollment.
Kozinski concluded that because Congress
had established the system making the employee dispute resolution panels set up by the
courts the exclusive way to resolve grievances
by court employees, there must follow the
power to award appropriate remedies, or “judicial employees who are victims of discrimination would have no remedy at all.” He found
that OPM’s intervention to prevent the implementation of his previous order implicates “the
autonomy and independence of the Judiciary as
a co-equal branch of government. In effect,
OPM has claimed that its interpretations of the
rights and benefits of judicial employees are
entitled to supremacy over those of the Judiciary. That’s incorrect,” Kozinski insisted, “and
the Executive must henceforth respect the Judiciary’s interpretation of the laws applicable
to judicial employees. Any other result would
prevent the Judiciary from accomplishing its
constitutionally assigned functions, by seriously undermining our autonomy over personnel matters.”
Kozinski asserted that OPM “may not disregard a coordinate branch’s construction of the
laws applying to its employees. No less than the
other branches of government, the Judiciary is
dependent on people to carry out its mission.
Barring us from determining, within reasonable
bounds, the rights and duties of our personnel
under the laws providing for their employment
would make us a ‘handmaiden of the Executive.’ The power both to interpret and execute a
law is the power to control those governed by
it.” He drove home this point by citing to The
Federalist Papers.
December 2009
Kozinski amplified his point by showing how
the Judiciary is dependent on a variety of federal agencies to carry out its functions. Nobody
would seriously argue that the Treasury Department could refuse to issue paychecks because
it disagreed with the pay policies established
by the courts for their personnel, so why should
OPM be entitled to interfere with this decision
about court employees’ benefits? Kozinski
stated that he did not believe that Congress intended to grant such authority to OPM. He
found that the relevant statutes authorized the
courts to set up their own workplace complaint
resolution system “without interference by the
Executive. I therefore conclude that an EDR
tribunal’s reasonable interpretation of a law applied to judicial employees must displace, for
purposes of those employees, any contrary interpretation by an agency or officer of the Executive.”
Thus, he concluded, because he had ruled,
sitting as an EDR officer, that Golinski was entitled to enroll her wife in the federal employee
benefits program, she was so entitled, despite
DOMA. “OPM had, and has, no authority to
conclude otherwise,” he asserted.
Judge Kozinski has thrown down the gauntlet
to the Executive Branch, and Judge Reinhardt
has declared that the Justice Department’s
main defense of DOMA, advanced in the pending case in Boston, is wrong. The 9th Circuit
seems to be in rebellion against the Justice Department’s continued obstinate defense of
DOMA, a statute that the President has condemned as discriminatory and whose repeal he
has advocated (if but faintly so far). In this connection, it is worth noting that Judge Kozinski
was appointed to the 9th Circuit by President
Ronald Reagan and is generally seen as a conservative, but on matters of fairness to the employees of his court, he insists on equality and
vindication of their rights.
Brad Levenson represents himself pro se in
this matter. Karen Golinski is represented by
Lambda Legal, with local cooperating attorneys
Rita Lin and James R. McGuire of Morrison &
Foerster listed on Judge Kozinski’s opinion.
A.S.L.
Federal Court Rejects Free Speech Claim by
Anti-Gay Professor Whose Contract Was Not
Renewed
In Nichols v. University of Southern Mississippi,
2009 WL 3517616 (S.D. Miss. Oct. 26, 2009),
U.S. District Judge Keith Starrett granted the
University of Southern Mississippi administration officials’ motion for summary judgment in
a Section 1983 suit brought by a former adjunct
music professor for “violations of his Procedural and Substantive Due Process Rights under the Fourteenth Amendment, Equal Protection Rights, and First Amendment Rights¼ a
state breach of contract claim and violation of
213
Mississippi’s Due Process Clause.” The professor brought suit when his contract was not renewed after a gay student complained that he
had made anti-gay statements to the student in
violation of the university’s nondiscrimination
policy.
The conversation in question dealt with the
subject of homosexuality in the New York theater world. Before the voice teacher knew that
his voice student was gay, he told the student,
who had mentioned plans to pursue a career in
New York, that “New York was morally challenging [and] that AIDS was a severe problem
there.” After the student confronted the professor and came out to him, the professor, among
other things, told the student that gay people
have a shortened life span, that “homosexuality
is a disgusting lifestyle,” and that gay life was
characterized by “jealousy, drugs, and AIDS.”
The student complained to another professor in
the School of Music, and word made its way up
the chain of command. As a result, the professor’s superiors met with him concerning the incident. They told him that he had violated the
school’s nondiscrimination policy. He was permitted to finish out his contract, and his contract was not renewed.
Relevant to our readers, the court held that
the professor did not have a First Amendment
retaliation claim against the school. Citing to
the 5th Circuit’s decision in Modica v. Taylor,
the court held that “to prove a retaliation claim
based on the First Amendment, the plaintiff
must prove: (1) he suffered an adverse employment action; (2) the speech involved a matter of
public concern; (3) his interest in commenting
on matters of public concern outweighs the
University’s interest in promoting efficiency;
and (4) the speech motivated the adverse employment action.” The court added the U.S. Supreme Court’s element that “when public employees make statements pursuant to their
official duties, the employees are not speaking
as citizens for First Amendment purposes, and
the Constitution does not insulate their communications from employer discipline.”
The court held that while homosexuality and
AIDS “could generally be considered matters
of public concern as they have been the center
of intense public debate¼the courts have consistently taken a broad view of what constitutes
classroom speech that is not afforded protection
under the First Amendment.” Because of the
form and the context (the statements were
“made in the classroom setting by a professor to
a student” though they didn’t pertain to the subject of the professor’s class), the statements
were made in the professor’s official capacity,
while discussing the student’s career interests
as a signer, the court held, and were thus “not
afforded First Amendment protection.” The
court also held that, given the university’s nondiscrimination policy, the professor was unable
to show that his statements trumped the
214
school’s efficiency interest “in providing a
learning environment that does not tolerate disrespect or contempt based on sexual orientation.”
Kim Turner Chaze of Durham, New Hampshire served as counsel for the plaintiff professor, and Purdie & Metz, PLLC and Lee P. Gore
of the University of Southern Mississippi
served as counsel for defendants. Daniel Redman
Gay Peruvian Denied Withholding of Removal;
Fails to Establish Fear of Future Persecution or
Pattern/Practice of Persecution
On November 20, 2009, a three-judge panel of
the U.S. Court of Appeals for the 3rd Circuit denied Jair Izquierdo’s petition for review of the
denial of withholding of removal by the Board of
Immigration Appeals (BIA). Izquierdo v. Attorney General of the United States, 2009 WL
3963628 (not selected for publication). The
court found that Izquierdo, a Peruvian native
and citizen, had failed to establish that the evidence he presented compelled findings that he
feared future persecution or that there was a
pattern or practice of persecution of gay men in
Peru.
Izquierdo’s fear of persecution arose from the
sexual abuse he suffered as a child at the hands
of his cousin. The abuse began in 1984, when
Izquierdo was eight, and lasted for six years.
Izquierdo did not report his cousin to the police
until about ten years after the abuse ended. No
action was taken against the cousin, because,
the Immigration Judge (IJ) found, Izquierdo
failed to cooperate with the police. Izquierdo
claimed that follow-up with the police would
have been “pointless,” based upon what the
Court of Appeals concluded was “police insensitivity.” Based upon the brief snippet of
Izquierdo’s testimony contained in the Court of
Appeals’ decision, “insensitive” appears to be
a very mild way of describing the police’s actions: “the police made [Izquierdo] repeat his
description of the abuse in a public area and
demanded that [Izquierdo] produce witnesses.”
Izquierdo entered the U.S. in 2001 as a nonimmigrant visitor. He overstayed his visa, and
was served with a notice to appear in June
2006. Izquierdo applied for asylum, withholding of removal and protection under the Convention Against Torture (CAT), claiming that he
suffered past persecution and fears of future
persecution in Peru because he was gay.
After a hearing, the IJ held that Izquierdo
was ineligible for asylum because his application was untimely, and that Izquierdo otherwise
failed to meet his burden of proof to establish
eligibility for withholding of removal or protection under the CAT. On appeal, the BIA affirmed the IJ’s decision. Izquierdo then appealed the denial of withholding of removal to
December 2009
the Court of Appeals. To prevail, Izquierdo had
to show that the evidence he presented compelled the conclusion that he was more likely
than not to suffer persecution if he returned to
Peru.
Izquierdo argued that he had established
past persecution and was therefore entitled to
the rebuttable presumption that he would also
face future persecution: [1] that based upon
country conditions, the evidence showed the
police would have done nothing about his sexual abuse; and [2] that the BIA assigned improper weight to Izquierdo’s delay in reporting
the abuse.
The panel found that because Izquierdo had
only provided evidence of country conditions
for gay people in Peru during 2003–2005, well
after the time the abuse ended or when
Izquierdo reported the abuse, Izquierdo failed
to demonstrate that the police would have been
unable or unwilling to protect him at the time
the abuse occurred. Izquierdo could have overcome this hurdle by presenting evidence of
country conditions in 1990, or otherwise demonstrating that the conditions for gay people in
Peru in 2003 or 2005 were the same as in 1990.
Izquierdo argued that the BIA implicitly
found that his delay in reporting the abuse was
fatal to his application for withholding of removal, or that the BIA should not have given
any weight to the fact that Izquierdo returned to
Peru from the U.S. for a visit in 2001. The panel
flatly rejected these arguments. Rather, it was
proper for the BIA to note that Izquierdo’s delay
in reporting to the police was relevant to the determination of whether the police were “unable
or unwilling to control” the abuse, said the
court. The panel also approved of the BIA’s determination that Izquierdo’s subjective fear of
persecution was undermined by his decision to
return to Peru in 2001.
Izquierdo’s second ground for appeal, regarding pattern or practice of persecution,
stemmed from the IJ’s erroneous conclusion
that he could not make such a finding absent a
“statute or appellate court decision squarely
addressing the issue.” The BIA found that the
IJ’s error was harmless because Izquierdo
nonetheless failed to demonstrate systemic,
pervasive or organized persecution. The Court
of Appeals affirmed the BIA’s determination,
and also found that the BIA had “adequately
reviewed the record and considered Izquierdo’s claims.” Eric J. Wursthorn
Lesbian/Gay Law Notes
though the court found it “disturbing” that the
events of alleged persecution described by the
applicant were characterized as “minor... to say
the least” by an Immigration Judge (IJ), and
that the applicant “correctly notes that the IJ’s
statement of the well-founded fear standard
was muddled, if not outright erroneous.”
Pacheco v. Holder, 2009 WL 3720169 (2nd Cir.,
Nov. 9, 2009)(not published in F.3d).
The court’s summary order does not reveal
any of the details of Pacheco’s petition, stating
that the court assumes “the parties’ familiarity
with the underlying facts and procedural history of the case.” The opinion, assuming that
Pacheco’s testimony was credible because neither the IJ nor the BIA said anything in their
opinions to question it, noted that Pacheco’s description of incidents in which he claims to
have incurred persecution in Venezuela was
“disturbing,” but insisted that the court was
“unable to find error in the agency’s determination that these events did not rise above the
level of harassment and discrimination such
that they constituted persecution.”
As to Pacheco’s allegation that he had a
well-founded fear of future persecution if deported back to Venezuela, “the agency found
that the presence of gay organizations and gay
individuals running for public office in Venezuela undermined Pacheco’s claim. While the
record may, as Pacheco argues, support the conclusion that there is widespread homophobia
and related violence in Venezuela, we cannot
find that the agency erred in its analysis, even if
we would (or could) have drawn a different conclusion.” The problem, the court points out, is
that different inferences could be drawn from
the record as to this issue, and in such a case, “a
reviewing court must defer to that choice so
long as the deductions are not illogical or implausible.” And, despite noting Pacheco’s accurate criticism of the IJ’s articulation of the legal standard, the court insisted that the BIA had
used the correct standard in reviewing the IJ’s
decision.
The court also rejected Pacheco’s argument
that the agency had improperly found that his
“several return trips to Venezuela” undermined
his subjective fear of persecution. Pacheco had
argued that he had stopped making trips back
once he determined that “he could no longer
tolerate returning to Venezuela,” but this cut no
ice with the court, which cited prior rulings affirming the agency’s similar holdings involving
asylum applicants from other countries. A.S.L.
2nd Circuit Rejects HIV+ Gay Venezuelan
Refugee’s Asylum Claim
Federal Civil Litigation Notes
A panel of the U.S. Court of Appeals for the 2nd
Circuit affirmed the decision of the Board of
Immigration Appeals (BIA) to reject an application for asylum, withholding of removal and
relief under the Convention Against Torture
from an HIV+ gay man from Venezuela, even
Supreme Court — In Bobby v. Van Hook, 2009
WL 3712013 (Nov. 9, 2009), the Supreme
Court, ruling per curiam, rejected a petition for
habeas corpus from a death row inmate who had
lured a gay man from a bar and murdered the
man in his apartment. The petitioner contended
Lesbian/Gay Law Notes
that he had inadequate assistance of counsel.
The 6th Circuit agreed with him, pointing to
ABA Guidelines for defense of capital cases,
but the Supreme Court pointed out that the version of the ABA Guidelines to which the 6th
Circuit referred in its opinion post-dated the
trial and were, in the Court’s view, substantially
more demanding and detailed then Guidelines
in effect at the time of the trial. Furthermore, the
Court found that the 6th Circuit had given the
Guidelines too much weight, as if they were
binding regulations as opposed to suggestions.
The petitioner claimed his lawyers delayed until too late in the proceedings to begin investigating mitigating evidence to present at the trial
phase.
2nd Circuit — A unanimous panel of the 2nd
Circuit denied a petition for review by a lesbian
from Guyana seeking to avoid deportation back
to her home country in Isaacs v. Holder, 2009
WL 3806390 (Nov. 16, 2009). The court’s
summary order assumes the parties’ knowledge
of the facts, so doesn’t relate any! It seems that
Ms. Isaacs incurred an aggravate felony conviction and thus was held ineligible for refugee
status in the U.S., despite her allegations that as
a lesbian she had a reasonable fear of persecution if returned to Guyana. The court does not
describe the evidence she presented on this
point or the nature of the felony of which she
was convicted. Responding to her further pro se
application for relief under the Convention
Against Torture (CAT), the court upheld the Immigration Judge’s conclusion that Isaacs had
“failed to establish a likelihood that she will be
tortured in Guyana,” finding that her argument
relied upon a chain of hypothetical circumstances – that people would assume she is a lesbian based on her appearance, that this would
cause her to be arrested and detained, and that
lesbians are tortured in prison in Guyana – as to
none of which she showed a likelihood that they
would occur.
10th Circuit — N-A-M, a transgendered person from El Salvador, was ordered removed to
that country by the Board of Immigration Appeals, upon determination that she had been
convicted of a “particularly serious crime” in
the United States. A 10th Circuit panel affirmed that ruling in N-A-M v. Holder, 2009 WL
3949130 (Nov. 20, 2009), even though the Immigration Judge found that she had a “viable
persecution claim” based on her experiences as
a transgered person in El Salvador. (In a footnote, the court commented that “N-A-M is a
preoperative transgender person and wishes to
be addressed as female.”) N-A-M disputed the
IJ’s treatment of non-felonious conduct as a
“particular serious crime,” but the court found
that Congress did not mean to limit this classification to felonies, and that the agency did not
have to make a separate determination of
whether the petitioner presented a danger to the
community once it had determined that a seri-
December 2009
ous crime was committed. Circuit Judge Henry
concurred in a separate opinion arguing at
length that the law governing this area is confusing and inconsistent, and commenting the
N-A-M and amicus brief writers on this case
“raise noteworthy arguments that merit the
separate discussion of this concurrence and
hopefully will draw further scrutiny to this matter.”
Arizona — Lambda Legal has filed suit on
behalf of ten state employees against Governor
Jan Brewer to attempt to reverse a state policy
that will ban domestic partnership benefits for
state employees. Collins v. Brewer, No. 2:09cv-02402- HRH (D. Ariz., filed Nov. 17, 2009).
The previous state administration of Governor
Janet Napolitano, a Democrat, decided in 2007
to grant domestic partnership benefits for state
employees, a decision criticized at the time by
Republican state legislators. Now Gov. Napolitano has resigned to take office as Secretary of
the federal Department of Homeland Security,
bringing the Republican Lt. Gov., Jan Brewer,
into office. The legislature, under Republican
control, sought to effect economies in the state
budget in the face of the economic downturn,
and decided that one place to cut was domestic
partnership benefits, a decision that will leave
quite a few state employees “high and dry.”
H2013, recently enacted, limits spousal benefits to legal spouses and children of state government workers. Lambda argues that the
measure violates the 14th Amendment’s Equal
Protection Clause.
Arizona — The Cheesecake Factory, Inc.,
has agreed to pay $345,000 to settle a suit
brought against it by the EEOC based on complaints by half a dozen male employees of the
company’s Chandler, Arizona, restaurant about
sexual harassment by male coworkers including simulated rapes, unwanted touching, and
variety of other outrageous activities, some allegedly carried out in full view of supervisory
personnel who allegedly did nothing to stop
them or punish the perpetrators. EEOC v.
Cheesecake Factory, Inc., No. 08–1207, consent
decree entered 11/5/2009. (See BNA Daily Labor Report No. 216, A–1, Nov. 12, 2009. Under
the terms of the consent decree, the company
admits no wrong doing, and it continues to
maintain that the conduct at issue never happened because, if it had, the company would
have done something about it. According to the
company, it agreed to pay the money and undertake policy changes and staff education in order
to avoid the expense and disruption of litigation. Yeah….
California — The ongoing pre-trial skirmishing in Perry v. Schwarzenegger, the pending federal constitutional challenge to California’s anti-same-sex-marriage constitutional
amendment, continued during November, focused mainly on the continued refusal of the
Defendant-Intervenors, the proponents of
215
Proposition 8, to submit various internal communications that have been subpoenaed as part
of the discovery process. Although Judge
Walker has repeatedly rejected their arguments
as to why the material should not be discoverable, see, e.g., 2009 WL 3823174 (N.D.Cal.,
Nov. 11, 2009), and finally ordered materials to
be turned over to the plaintiffs, the DefendantIntervenors managed to win the ear of Circuit
judges, who agreed to delay this aspect of discovery while considering the merits of
Defendant-Intervenors argument concerning
1st Amendment privilege. See Perry v. Schwarzenegger, No. 09–17241 & 17551. The panel of
Circuit Judges Wardlaw, Fisher and Berzon
granted a temporary stay of Judge Walker’s orders pending consideration of the merits of
Defendant-Intervenors’ motion. Judge Walker
has scheduled a trial to begin in January, but
this continued discovery wrangling could delay
it.
California — A transsexual inmate in the
California prison system won an initial victory
in her suit challenging various aspects of her
treatment by correctional officers, as U.S. Magistrate Dennis L. Beck, performing the screening function on pro se prisoner complaints, determined that the Jane Doe plaintiff had stated
cognizable claims for failure to protect under
the 8th Amendment, retaliation for invoking
the grievance procedure in violation of the 1st
Amendment, and violation of Equal Protection
under the 14th Amendment. Doe v. Yates, 2009
WL 3837261 (E.D. Cal., Nov. 16, 2009). The
inmate complains that despite her protests and
requests, she was housed with dangerous male
inmates who raped and assaulted her repeatedly, and that her attempts to pursue grievances
about this were stymied by the officers, who
also inflicted various humiliations on her. She
also complained about deprivation of medical
care and interference with her attempts to pursue her legal remedies. After the events at issue
in this case, the inmate was transferred to a different California prison, but as a result of Judge
Beck’s recommendations, it is possible she will
be able to pursue claims against various officers. Beck gave the officers an additional 30
days to file responses to the complaint.
California — A transsexual inmate proceeding pro se fell afoul of procedural and pleading
requirements in Jones v. Haws, 2009 WL
4015432 (C.D. Cal., Nov. 18, 2009), according
to the opinion issued by Magistrate Frederick F.
Mumm recommending that the case be dismissed without prejudice. The inmate, complaining about denial of her requests to be
placed in a trans-friendly environment and to
be given her medications, filed a petition for a
writ of habeas corpus. The judge pointed out
that a writ of habeas corpus is not the appropriate pleading for this kind of case, since the inmate is not challenging her conviction or prison
sentence. Instead, she should be filing a civil
216
rights action under 42 USC sec. 1983. However, since she has not exhausted internal
prison grievance procedures, a 1983 action
would be subject to dismissal. By recommending dismissal without prejudice, Magistrate
Mumm leaves the door open for the inmate to
pursue her grievances and then file a 1983 action. District Judge Philip S. Gutierrez, responding to the Magistrate’s recommendation,
granted the prison warden’s motion to dismiss
the case without prejudice for lack of subject
matter jurisdiction.
Louisiana — U.S. District Judge Patricia
Minaldi accepted a recommendation by Magistrate Judge Kathleen Kay to dismiss a civil
rights claim brought by a gay state prisoner protesting his termination from a vocational cabinet making/carpentry class in Thomas v. Terrell,
2009 WL 3615073 (W.D.La., Nov. 2, 2009).
Magistrate Kay found Thomas’s complaint to
be frivolous. He named as defendants only the
wardens at Allen Corrections Center, where is
was incarcerated, but his complaint alleges that
a corrections order told him he would be removed from the class because the officer despises homosexuals. Civil rights liability to
prisoners in the context of litigation under 42
USC sec. 1983 does not extend to prison wardens unless they either were personally involved in the discrimination or created a discriminatory policy that was being enforced by
underlings, neither of which pertained to this
case. Further, in his own suit papers Thomas indicated he had been told that the officer in
question had no authority to decide who would
take particular vocational classes. Thus, the
complaint was deemed frivolous.
Louisiana — While affirming Magistrate
Judge Karen L. Hayes’ recommendation to dismiss as frivolous a complaint by a state prisoner
that he suffered discrimination because of his
“purported sexual orientation,” District Judge
Robert G. James made a “clarification” of Magistrate Hayes’ discussion of the inmate’s equal
protection claim in Hall v. Morehouse Parish
Detention Center, 2009 WL 3762084 (W.D.La.,
Nov. 9, 2009). Hayes’ report had cited 5th Circuit authority incompletely on the issue of sexual orientation discrimination claims, making
it sound as if “neither the Supreme Court nor
the Fifth Circuit Court of Appeals has recognized sexual orientation as a protected group.”
To the contrary, observed Judge James, the
complete passage from the cited authority went
on to state that “a state violates the Equal Protection Clause if it disadvantages homosexuals
for reasons lacking any rational relationship to
legitimate governmental aims.” In this case,
the court rejected a challenge to a decision by
prison officials to shift the inmate to a cell
where he could be more regularly observed, out
of concern that his reputation for being gay
might make him more vulnerable to attacks by
other inmates. He did not prefer the new ar-
December 2009
rangement, disliking being under more frequent observation.
Ohio — U.S. District Judge David A. Katz
(N.D. Ohio), denied summary judgment to the
defendant employer in a case alleging that a
former supervisory employee who was perceived to be gay was subjected to unlawful hostile environment harassment. Horton v. Potter,
2009 WL 3599567, 107 Fair Empl. Prac. Cas.
(BNA) 1100 (Oct. 26, 2009). Anti-gay graffiti
in the men’s rooms directed at Horton led him
to complaint to supervision, but the resulting
investigation turned up nothing. Subsequently,
Horton was subjected to an embarrassing investigation in response to a hearsay report, subsequently unverified, that he had made a sexual
advance to a fellow employee. He was briefly
transferred as a result, but then reinstated to his
former position, before ultimately being discharged on unrelated grounds. Rejecting the
Postal Service’s argument that the allegations of
the complaint were not sufficient to ground a
hostile environment claim, Judge Katz found
that “the deposition and affidavit testimony
presented by Horton could reasonably be read
as demonstrating that the two incidents emphasized by Horton were part of a larger campaign
of gossip, innuendo, and name-calling by certain of his co-workers, centering on his perceived homosexuality, that effectively destroyed Horton’s respect and esteem among his
co-workers.... The presence of bathroom graffiti
and the launching of what might be reasonably
seen as a baseless sexual harassment investigation against Horton, when taken in conjunction
with widespread gossip, name-calling and joking about Horton’s sexual orientation among
other employees, would appear to rise beyond
the level of good-natured teasing or isolated instances to severe, pervasive, and unwelcome
harassment that a reasonable person would
perceive as hostile or abusive.” However, the
court granted summary judgment as to Horton’s
retaliation claim, which it found had not been
filed in a timely manner.
Pennsylvania — Senior District Judge Buckwalter (E.D.Pa.) granted a motion for preliminary injunction by the Cradle of Liberty Council of the Boy Scouts of America, seeking to halt
proceedings in state court to evict the Council
from a city-owned building that has been
rented to the Scouts for a nominal sum since the
building was constructed by the city for use of
the Scouts in 1929. Cradle of Liberty Council v.
City of Philadelphia, 2009 WL 3921140 (Nov.
18, 2009). The City has been taking the position that in order to continue using the building
the Scouts must either abandon their discriminatory membership policies (which excludes
gays and atheists from membership) or agree to
pay market rates. The Scouts take the position
that they are being singled out for adverse treatment in violation of Equal Protection and the
First Amendment, pointing out that the Su-
Lesbian/Gay Law Notes
preme Court has ruled that the Scouts have a
First Amendment right to restrict their membership as an expressive association, and that
the City has not gone after any other lessees of
city property based on their membership policies. The City has a state court eviction proceeding under way, which was supposedly being put on hold while the federal court
considered the City’s motion to dismiss this
case brought by the Scouts, but notice that the
eviction proceeding was going forward led the
Scouts to move for this preliminary injunction.
Most of the opinion is devoted to Judge Buckwalter explanation for concluding that various
statutory and prudential doctrines against federal court interference with pending state proceedings do not impede the issuance of the preliminary injunction in this case. A.S.L.
Virginia Appeals Court Gives Full Faith and Credit
to North Carolina Custody Order for Gay Dads
A three-judge panel of the Court of Appeals of
Virginia ruled on November 24 that the Fairfax
Juvenile and Domestic Relations District Court
had properly accorded full faith and credit, as
required by the U.S. Constitution, to a North
Carolina judicial decision awarding primary legal and residential custody of a child to two gay
men (who are registered California domestic
partners). Prashad v. Copeland & Spivey, 2009
WL 4030852. Still pending before the Deomstic Relations Court is a demand by the woman
who served as surrogate mother for the child
that the North Carolina custody ruling be modified to give her sole custody. One of the judges
on the Court of Appeals argued in dissent that
the case was not properly before the court for
review on the merits.
In September 2003, Roberto-Luis Copeland
and Philip Spivey contracted in Minnesota with
Tanya Prashad, a married woman, for her to be a
surrogate mother of their child. Copeland and
Spivey both donated sperm that was mixed together to inseminate Prashad, and their child,
identified by the court as A.C.C., was born in
Minnesota in August 2004. No DNA test was
done to determinate who was the father, and
Copeland was named on the birth certificate. A
few days after A.C.C. was born, the two men
moved with A.C.C. to North Carolina. Prashad
visited the child in North Carolina with the consent of the fathers, but the relationship deteriorated and after February 2005 the fathers refused to allow further contact.
Prashad and her husband traveled to North
Carolina in April 2005, intending to take
A.C.C. away from the fathers and bring the
child back to Minnesota. A confrontation ensued in which the fathers refused to let Prashad
see the child, and the fathers left with the child
for California, where Copeland and Spivey registered as domestic partners. After staying in
Lesbian/Gay Law Notes
California for a time, they returned to North
Carolina with A.C.C.
While they were living in North Carolina,
Prashad filed an action against Copeland in the
North Carolina Justice Court in Gaston County,
seeking an award of custody and an order compelling the men to submit to DNA testing to determine A.C.C.’s biological father. The court ordered the test, and Spivey was determined to be
the biological father. Spivey then moved to intervene as a party in the custody proceeding.
The North Carolina court determined that it
had jurisdiction over the case because the two
men and A.C.C. were legal residents of the
state.
Sorting out the situation, the North Carolina
trial court decided that both Spivey and Copeland should be parties to the case, Spivey as
biological father, and Copeland as the person
who was listed on the birth certificate and had
actually served as A.C.C.‘s father since her
birth. The court did not use the term “de facto
father,” but that is essentially how it treated
Copeland in allowing him to be a party. The
court then approved a written agreement signed
by Spivey, Copeland and Prashad, under which
Copeland and Spivey were awarded primary legal and physical custody of A.C.C., and
Prashad was awarded secondary legal and
physical custody.
Copeland and Spivey then moved with
A.C.C. to Fairfax County, Virginia. Seizing upon
Virginia’s legal hostility to same-sex couples
(evidence by having adopted both a statute and
a constitutional amendment banning recognition of same-sex marriages, civil unions and
domestic partnerships), Prashad filed petitions
in the Fairfax Juvenile Court, seeking to have
the North Carolina custody judgment registered with the court but with Copeland omitted
as a parent, and also seeking custody of A.C.C.
She specifically asked the court to exclude
Copeland from having any parental rights, arguing that any acknowledgment of Copeland as
a parent was an implicit recognition of the relationship between Copeland and Spivey in violation of Virginia law. Prashad also filed a petition to modify the North Carolina judgment so
as to give her sole legal and physical custody of
A.C.C.
On March 12, 2008, the Fairfax court registered the North Carolina court orders in their
totality, declining Prashad‘s demand to exclude
Copeland. Prashad appealed this decision to
the Fairfax County Circuit Court, which affirmed, and then she took her appeal to the Virginia Court of Appeals, which also affirmed.
The majority of the Court of Appeals panel
ruled in an opinion by Judge Cleo E. Powell that
under the Full Faith and Credit Clause of the
U.S. Constitution, Virginia courts are obligated
to recognize and enforce judicial orders concerning custody and jurisdiction of children
that are issued by courts of other states that had
December 2009
proper jurisdiction over the parties and the subject matter of the case. Since Copeland, Spivey
and the child were residents of North Carolina
at the time the custody agreement was embodied in a court order there, the Juvenile Court
properly registered it without any modification.
The Court of Appeals made clear that its decision only concerned the registration of the
North Carolina custody and visitation orders,
pointing out that all the discussion in the appeal raised by Prashad about “homosexual
marriage” and “same-sex relationships,” was
irrelevant in the court‘s eyes to the specific issue that was being appealed.
The court also discussed the federal Parental
Kidnapping Prevention Act, which was intended to avoid “jurisdictional competition and
conflict between State courts” by making clear
that courts must respect custody decrees by
“sister states.” The court also noted that Virginia had adopted the Uniform Child Custody
Jurisdiction and Enforcement Act, which requires Virginia courts to “recognize and enforce” child custody determinations by the
courts of other states. The court found that all
the requirements of this statute were met by the
North Carolina custody order.
Finally, the court found that the Virginia
Marriage Amendment and the anti-same-sex
marriage statute were essentially irrelevant to
the issue of registering the North Carolina custody order because, as Judge Powell pointed
out, “neither party is asking the Court to recognize Copeland and Spivey‘s relationship.” Furthermore, the North Carolina court, in determining that Copeland should be part of the
custody proceeding there, had based this determination on Copeland’s long-standing relationship with the child, and not in any way on Copeland‘s relationship with Spivey. As such, the
Virginia amendment and statute were not implicated.
This ruling does not end the matter, of course,
because still pending before the Fairfax Juvenile Court is Prashad‘s separate petition to
modify the custody award to give her sole legal
and physical custody. In a long and technical
dissent, one member of the court held that the
appeal was not properly before the court because the Juvenile Court‘s order to register the
North Carolina custody order was not a final order on the merits of the dispute between the
parties, but merely a preliminary step that had
to be accomplished before the Juvenile Court
would address the merits of the modification
petition. The dissenter did not state disagreement with the majority‘s analysis of the substantive legal issues concerning recognition of
the North Carolina custody orders, but merely
that the court should have denied the appeal
without discussing those issues at this stage of
the case.
Gregory R. Nevins, an attorney in Lambda
Legal’s Atlanta Regional Office, represented
217
Copeland and Spivey on the appeal, with participation of the ACLU of Virginia and local Virginia counsel, Laurie Forbes. A.S.L.
Divided California Appeals Court Rejects
Blackmail Claim Against Discharged Gay
Employee
A divided three-judge panel of the California
2nd District Court of Appeal ruled on Nov. 20
that a discharged gay employee and his attorney did not engage in blackmail when they
threatened to sue the former employer, and to
bring to light employer’s unlawful conduct, as
part of settlement negotiations after the discharge. Stark v. Withrow, 2009 WL 3957538
(non-published opinion).
According to the opinion for the panel majority by Judge Johnson, Martin Withrow was employed for several years as art director of
Chrome Hearts LLC, a fashion company owned
by Richard and Laurie Lynn Stark, that had
many celebrity clients. Withrow, who is gay, alleges that from the start of his employment he
was subjected to sexual harassment and harassment based on his sexual orientation, including a “near constant barrage of racist, sexist and homophobic epithets and jokes by the
Starks.” When he complained from time to
time, the Starks attempted to minimize their
conduct. For example, in response to an email
complaint from Withrow, Richard Stark told
Withrow “that although he uses the words ‘fag’
and ‘faggot’ all the time, he ‘does not mean anything’ by them.” At various times, both Starks
assured Withrow that he was “part of the family” and that he had a “big part” to play as
Chrome Hearts grew as a successful fashion
business.
And yet they suddenly summarily terminated Withrow on May 5, 2008, “ostensibly for
insubordination and poor output of work.”
Withrow was summoned to a meeting with
Chrome Hearts’ CFO, Mario Lejtman, who offered him a written “separation agreement” by
which he would give up any right to sue in exchange for $50,000. Withrow, evidently insulted by this, went to an attorney, Jeffrey Thomas, who commenced negotiations on his half,
starting out with a demand for $190,000 to settle all claims Withrow might have against the
business.
Negotiations between Lejtman and Thomas
continued, with Thomas taking a hard line, laying out legal claims that Withrow might assert,
the kinds of evidence that might be introduced
at trial and who might be deposed for evidence
supporting Withrow’s claims, and pointing out
the variety of things Thomas knew about the
Starks’ activities – some quite scandalous –
that might come out in litigation. While there
was small movement on each side towards a
settlement figure, the Starks finally decided to
play hardball back, filing an unverified com-
218
plaint against Withrow and Thomas alleging
causes of action for extortion, slander, intentional infliction of emotional distress, and
wrongful interference with prospective economic advantage. Withrow struck right back,
cross-complaining against Chrome Hearts and
the Starks for sex and sexual orientation discrimination, sexual harassment, retaliation in
violation of state statutes, as well as common
law claims for wrongful termination, breach of
good faith and fair dealing, intentional infliction of emotional distress, and breach of an
implied-in-fact contract.
Withrow and Thomas also filed a motion to
strike the complaint, claiming all the negotiation statements on which the complaint was
based were privileged pre-litigation negotiation activity protected by the First Amendment,
and also contending that the plaintiffs should
be sanctioned under the anti-SLAPP statute.
The trial court agreed with defendants, granting
their motions to dismiss and for anti-SLAPP
sanctions, and the Starks and Chrome Hearts
appealed.
In essence, the Starks were claiming that by
threatening that various pieces of unsavory information would become public and their celebrity clients would be exposed to depositions
if they did not settle with Withrow, Withrow and
Thomas were subjecting them to blackmail.
Writing for the panel, Judge Johnson rejected
this claim, finding that these were settlement
negotiations, pure and simple, and Thomas was
merely pointing out what might come out in the
context of a trial if litigation ensued. Never had
Thomas expressly threatened on behalf of
Withrow that harmful facts would be released
directly to the public unless payment were
forthcoming. The court distinguished a California case, Flatley v. Mauro, 39 Cal.4th 299
(2006), heavily relied upon by the Starks, on
the basis that Withrow appeared to have valid
legal claims against the Starks and was not
merely threatening to disclose unsavory information in a baseless lawsuit to shake them
down. Thus, the court said, the communications were “absolutely protected by the litigation privilege.”
Judge Rothschild dissented, arguing that
Thomas’s settlement demands on behalf of
Withrow “constituted extortion as a matter of
law.” Rothschild argued that the key letter sent
by Thomas to Lejtman upon which the Starks
relied for their complaint “was nothing more
than a thinly veiled threat to publicly expose alleged criminal and embarrassing facts about
his employers, to burden their celebrity clients
by taking their depositions, and to publicly enmesh those celebrity clients in the employers’
claimed tax fraud.” You had to be there….
Fans of celebrity litigation should definitely
access this unpublished decision from Westlaw
and have a good read. A.S.L.
December 2009
Westchester County Judge Agrees to Waive
Publication of Trans Name Change
Finding that transsexuals are at risk of being
victimized by hate crimes, New York Supreme
Court Justice William J. Giacomo has granted a
request by a transsexual man that the usual requirement that a name-change notice be published in a local newspaper be waived in his
case, and that the court files on the proceeding
be sealed. The opinion, consistent with the
court’s findings, identifies the name-change
applicant only by his initials, E.P.L.. In the Matter of the Application of E.P.L., 2009 Westlaw
3764453 (N.Y.Sup.Ct., Westchester Co., Nov.
10, 2009).
“This is an application by Petitioner, a transgender individual, for a name change to correspond with his male gender identity,” wrote
Justice Giacomo. “An adult does not need permission of the court to change one’s name, however, ‘public policy favors a court’s review and
granting of name change applications because
this makes the change of name a matter of public record.’” Court-ordered name-changes are
especially useful for transsexuals, as the resulting court order can be helpful in getting the appropriate changes made on documents such as
passports, drivers licenses, social security
cards, and other identifying documents, as well
as business forms, credit cards, and the various
other ways our name is significant as we go
through life.
One possible down-side of a court-ordered
name change in New York, however, is that a
statute, Civil Rights Law section 63, requires
that a court-ordered name change be published
in “a designated newspaper in the county in
which the order is entered within sixty days after the making of the order.” The publication requirement serves an important public policy of
giving notice about the name-change to the local community, but the statute provides that the
court may decide to waive the publication requirement.
In this case, E.P.L., age 20 and about to start
life afresh with his new name, requested that
his name change not be published in Westchester County and that the court records of the case
not be made accessible to the public. Under the
waiver provision, Civil Rights Law section
64–a, the court can waive publication if it finds
that publication would jeopardize the safety of
the person who’s name is being changed. The
usual case in which this is done is where somebody who has been the victim of domestic violence seeks a name change as part of a process
of avoiding further victimization by the perpetrator of the violence.
In this case, E.P.L. did not allege that he had
been the victim of violence in the past due to his
transsexuality, but rather sought to show that
publishing his name change would “out” him
as transsexual in the community and increase
Lesbian/Gay Law Notes
the risk of violence to him, as transsexuals are
well-documented victims of hate violence.
Justice Giacomo described numerous studies showing the vulnerability of transsexuals to
hate violence, and noted particularly the recent
enactment of the Matthew Shepard and James
Byrd, Jr., Hate Crimes Prevention Act by the
federal government, expanding the definition of
federal hate crimes to include those perpetrated because of the gender identity of the victim. The judge found that E.P.L.’s request was
well-grounded, concluding, “In short, while
petitioner did not, and hopefully could not, cite
a personal experience of violence or crime
against him based on his gender identity, he has
made a compelling argument as to why, at the
age of twenty, he has a right to feel threatened
for his personal safety in the event his transgender status is made public.”
In addition to waiving publication, Justice
Giacomo ordered that the court files on this
case be sealed, “and shall be hereinafter
opened only by order of the court for good cause
shown or at the request of the applicant.” A.S.L.
State Civil Litigation Notes
California — In Price v. 7–Eleven, Inc., 2009
WL 4068607 (Nov. 25, 2009), the California
2nd District Court of Appeal found that a written “contract” between the owner of a 7–11
franchise store in Santa Monica and the lesbian
employee who served as manager, under which
the owner agreed that upon his death the employee could purchase the franchise, was unenforceable for lack of consideration. Both the
employee and her registered domestic partner
worked in the business as well as providing personal service to the owner. However, after they
helped the elderly owner to move into an assisted living situation, the 7–11 Corporation
made a deal to award the franchise to somebody
else, and all the employees were discharged
when the new management took over. The employee sued for wrongful discharge and to enforce her rights, but the court found she was an
at-will employee and that the promise to sell
her the franchise was conditioned on the death
of the owner, which had not occurred. Furthermore, the court found that no consideration had
been given for the promise.
District of Columbia — In a rather adventurous ruling, the District of Columbia Court of
Appeals, which is the equivalent of a state appeals court for the nation’s capital district, has
ruled in Monteilh v. AFSCME, AFL-CIOD, No.
06–CV–1155,107 FEP (BNA) 561 (Sept. 17,
2009), that employees who live and work outside the District of Columbia can avail themselves of the protection of the District’s antidiscrimination law if their employer’s alleged
discriminatory decisions are made in the District. Many national organizations are headquartered in the District while carrying out con-
Lesbian/Gay Law Notes
siderable activity involving employment in
other jurisdictions. This case did not involve a
sexual orientation or gender identity claim, being premised on alleged race and age discrimination suffered by the plaintiff, an AFSCME
employee who has never lived or worked in the
district but who claims that the unlawful promotion decisions by his employer were made in
the District. Because the District’s antidiscrimination law covers sexual orientation,
gender identity, and many other forms of discrimination that are not routinely included in
the laws of other states, such as source of income, personal appearance, student status,
family responsibilities, political affiliation, and
place of residence, the decision to exert jurisdiction in such cases is likely to be controversial. Of course, if Congress passes the Employment Non-Discrimination Act, there will be
nationwide coverage. However, ENDA would
only apply to employers large enough to be covered under Title VII of the Civil Rights Act, so
there would still be a need for state and local
laws applying to smaller companies.
Illinois — In Kirk v. Arnold, No.
09–CH–3226 (Cook County Circuit Court), the
ACLU is representing transsexuals who were
denied accurate birth certificates due to restrictive policies adopted by the Illinois Department of Vital Records. The filing of the lawsuit early this year seems to have lit a fire under
the Department, because it recently reversed
course on the challenged policies. According to
a press release issued on November 16 by the
ACLU LGBT Rights Project, the Department is
dropping its requirement that gender reassignment surgery be performed by surgeons licensed in the United States, and is relaxing its
requirements as to how much and what kind of
surgery is necessary for female-to-male transition. According to the release, it is expected
that Judge Peter Flynn, before whom the case is
pending, will likely dismiss the lawsuit once a
number of procedural issues in the case are resolved. ACLU of Illinois and the national ACLU
LGBT Rights Project were assisted in the litigation by pro bono attorneys from the Chicago office of Jenner & Block.
Nevada — The Las Vegas Review-Journal
reported on Nov. 11 that District Judge David
Wall had denied a request by some parents of
students attending Green Valley High School
for a court order forbidding planned performances of “The Laramie Project” and “Rent” at
the high school. “The Laramie Project” is a
documentary play dealing with the impact of
the murder of Matthew Shepard, a young gay
man, and “Rent” is a musical show that includes gay characters. Judge Wall reportedly
ruled that because the plays were voluntary for
participants and audience, it is “a matter of
choice” whether they participate and there is
no basis for the court to interfere.
December 2009
South Carolina — Former foster parents of
an infant who had initially declined to adopt the
infant lacked standing to seek to adopt the infant after they learned that the child was being
placed with a lesbian for adoption, according to
a ruling by Greenville County Family Court
Judge Letitia H. Verdin that was affirmed on
appeal by the Court of Appeals of South Carolina in Michael P. & Lisa P. V. Greenville County
Department of Social Services, 684 S.E.2d 211
(Oct. 2, 2009, rehearing denied, Oct. 22,
2009). The child was born with cocaine in his
system and was immediately placed in emergency protective custody, the family court
granted DSS custody and DSS placed him with
the appellants, with whom he lived for the first
year of his life. DSS asked the appellants if they
wanted to adopt the child and they declined,
stating they thought the child should be placed
with a younger couple. When they learned the
child had been placed with a 34–year old lesbian as a “pre-adoptive foster parent,” they
brought this action against DSS. The lesbian intervened as a respondent and moved to dismiss
the action on standing grounds, a motion
granted by the trial court and affirmed. The
court said that because the appellants lacked
standing to bring the action, they also lacked
standing to raise any issue concerning the respondent’s qualifications to adopt the child.
Vermont — Rutland Family Court Judge William Cohen ruled on Nov. 20 that Janet Jenkins
should have sole legal custody of Isabella
Miller, the 7–year-old girl born to Jenkin’s
former civil union partner, Lisa Miller. The couple split up in 2003, and Miller filed an action
in Vermont to dissolve the civil union and determine custody. Miller, who lives in Virginia,
then sought to have the Virginia courts give her
sole custody of the child, and sought to exclude
Jenkins from contact. Ultimately, in litigation
that went up to the highest courts of both states,
it was determined that the Vermont court had
jurisdiction over the custody action and that the
Virginia courts were bound to accord full faith
and credit to Vermont rulings. As Miller has
persisted in refusing to allow Jenkins to maintain contact and visitation with her daughter,
Judge Cohen has now ruled that she is entitled
to sole custody, finding this in the child’s best
interest because of Miller’s obdurate refusal to
cooperate with the visitation orders from the
Vermont court. A.S.L.
Criminal Litigation Notes
Puerto Rico — The island was rocked by the
discovery of the body of a gay teenager, decapitated and partially burnt, in mid-November.
Juan Martinez Matos was subsequently arrested and charged with the murder of Jorge
Steven Lopez Mercado, a 19–year old college
student, widely known in the community as an
active volunteer for organizations advocating
219
HIV prevent and gay rights. The case quickly
generated sufficient notoriety to stimulate vigils in memory of Mercado in San Juan, New
York, and Chicago, according to an Associated
Press report published on Nov. 19. The charge
against Matos was first-degree murder and unlawful weapons possession. Activists protested
the failure of prosecutors to invoke the hate
crimes statute. A.S.L.
Legislative Notes
Federal — The House Oversight and Government Reform Committee has approved the proposed Domestic Partnership Benefits & Obligations Act by a party-line vote of 23–12 on
November 18. The bill, H.R. 2517, would provide that same-sex domestic partners of federal
workers be provided the same benefits and incur the same responsibilities as legal spouses of
federal workers. Lead sponsor Tammy Baldwin,
the House’s only openly-lesbian member, has
called for a floor vote in December. During
committee consideration, amendments offered
by Republican members attempting to introduce superfluous issues were voted down, but
an amendment was adopted by voice vote to require the Government Accountability Office to
produce a study to be released two years after
the effective date of the law to show how the law
has affected the price of insurance premiums
and its impact, if any, on recruiting and retention in the federal workforce. DC Agenda, Nov.
19.
Employment Non-Discrimination Act —
Committees in both houses of Congress have
now held hearings on the Employment NonDiscrimination Act, and a vote is expected in
the House before the end of the year, although
there were indications that some tinkering
might be done with the bill before it was put to a
final vote in committee and referred to the floor
of the House.
California — The City of Long Beach has
approved an Equal Benefits Ordinance under
which city contractors will have to provide domestic partnership benefits to their employees
in order to remain qualified to do business with
the city. The benefits requirements are phased
in under the ordinance. For the first year, it applies only to contracts for more than $100,000,
after which the City Manager is supposed to report back to the City Council about the experience of the first year. If the Council approves
the second phase, the threshold amount will
drop to $25,000 contracts. Also, any business
leasing city property for more than $350,000
per year would have to provide equal benefits to
its employees, but this would be put into place
only for renewals of existing leases and new
leases, not for leases now in effect. Exceptions
are made for non-profits and there is a hardship
exception to be determined on a case-by-case
basis. The council was told that when the ordi-
220
nance is fully implemented, it would affect 87
employers in the city. Grunion Gazette, Long
Beach, CA, Nov. 18.
District of Columbia — The D.C. Board of
Ethics and Elections ruled against a proposed
ballot measure that would ban same-sex marriage in the district. The District Council recently passed an ordinance authorizing the district to recognize same-sex marriages
contracted elsewhere, and Congress did not exercise its power to veto the measure. A new
measure authorizing same-sex marriages was
then introduced in the Council, and is likely to
be voted upon before the end of the year. The
disappointed proponents of the referendum
have initiated a lawsuit seeking to compel its
placement on the ballot, led b y Bishop Harry
Jackson represented by the Alliance Defense
Fund. Proponents of the marriage measure in
the Council are relying on the Democratic leaders in Congress to stymie any attempts to pass a
veto measure.
New Hampshire — Sore losers? Opponents
of same-sex marriage, taking heart from the recent repeal of the Maine law authorizing samesex marriage in a voter referendum, are hoping
to make the New Hampshire law authorizing
same-sex marriage short-lived. The law goes
into effect on January 1, 2010. According to a
Nov. 15 report by Doug Ireland in the Tribune,
Republican legislators plan to introduce two
measures when the legislature convenes in
January seeking to cut off marriages as quickly
as possible. One is a bill to repeal the same-sex
marriage law, reinstating the status quo of civil
unions for same-sex partners. The other is a
proposed constitutional amendment to provide
that marriage in the state be defined as only the
union of one man and one woman. The repeal
bill could be passed by a simple majority, unless vetoed by the governor, in which case a
super-majority would be needed. The constitutional amendment would need 60% support in
the legislature to be placed on the ballot. Rep.
Jim Splaine, the Portsmouth Democratic who
was the lead proponent for same-sex marriage,
expressed optimism that both efforts could be
blocked.
Pennsylvania — The House Judiciary Committee has approved House Bill 745, which
would amend the state’s Ethnic Intimidation
Act to include sexual orientation or gender
identity. The 18–8 vote in committee brought
support from representatives of both parties.
Rhode Island — Spouting the usual drivel
about defending “traditional marriage,” Governor Carcieri has vetoed a measure that would
have added “domestic partners” to the list of
persons authorized by law to make funeral arrangements for others. Wrote Carcieri in his
veto message: “This bill represents a disturbing trend over the past few years of the incremental erosion of the principles surrounding
traditional marriage, which is not the preferred
December 2009
way to approach this issue. If the General Assembly believes it would like to address the issue of domestic partnerships, it should place
the issue on the ballot and let the people of the
state of Rhode Island decide.” It seems bizarre
to have a state-wide referendum to determine
whether surviving domestic partnerships
should be authorized to make funeral arrangements for their loved ones. Carcieri also objected to the idea that somebody who has been a
domestic partner for only a year would have priority over traditional family members in determining funeral arrangements, and he contended that the lack of an official domestic
partnership registry would make the law difficult to administer on a case-by-case basis,
lacking a bright line test for determining
whether partners had been together for at least
a year when the occasion arose for making funeral arrangements. One of the sponsors of the
bill, State Representative David Segal, described the governor as “heartless” and
pointed out that this had nothing to do with the
definition of marriage. The legislation was proposed in response to testimony offered at legislative hearings on the proposed marriage bill, at
which a man spoke of a months-long battle he
had to persuade state authorities to release his
partner’s body so he could carry out the funeral
wishes his late partner had expressed, the delay
being due to a legal requirement that officials
try to contact legal relatives first. Newsblog.projo.com, Nov. 11.
Texas — In the wake of a traumatic incident
involving a mishandled police raid on a gay bar,
the Fort Worth City Council voted 6–3 on November 10 to amend the city’s antidiscrimination ordinance to add “gender identity” (the measure already includes “sexual orientation”), as the city moved to train staff members on dealing with the LGBT community and
the police department appointed a liaison to the
community for the first time. Council staff is
also researching proposals to adopt a domestic
partnership benefits plan and to expand the
scope of city employee health coverage to include gender reassignment procedures. The
police chief announced that some officers involved in the botched bar raid will be disciplined with brief suspensions from duty, a decision greeted with some criticism as being
inadequate to the scope of the offense, amidst
charges that a finding that the officers did not
use excessive force seemed inconsistent with
factual reporting about the incident, in which
some patrons of the bar sustained physical injuries.
Utah — When the Mormon Church officially
endorses controversial legislation in Utah, it
tends to get enacted. Gay rights advocates who
have been struggling for years to get the Salt
Lake City Council to enact a law banning discrimination on the basis of sexual orientation or
gender identity suddenly achieved their goal on
Lesbian/Gay Law Notes
November 10, when the LDS Church announced its support of the proposed ordinance
at a Council meeting. The announcement led to
an immediate unanimous vote to enact the
measure. Although the Church has been depicted as intensely anti-gay, and is widely reported to have provided a large part of the financial muscle behind the passage of
Proposition 8 in California last year, meetings
between local gay leaders and church officials
seems to have led to some changes of heart. An
official LDS spokesperson, Michael Otterson,
told the Council, “The Church supports these
ordinances, because they are fair and reasonable and do not do violence to the institution of
marriage.” Otterson premised the church’s
support on a belief in “human dignity, in treating people with respect even when we disagree
– in fact, especially when we disagree.” Nice
rhetoric, and helpful in passing this antidiscrimination ordinance, but clearly not backing away from the church’s staunch opposition
to same-sex marriage. Salt Lake Tribune, Nov.
11, 2009. Mayor Ralph Becker signed the
measure into law on November 17. Deseret
Morning News, Nov. 18. A.S.L.
Law & Society Notes
Election Results — The voters of Maine voted to
veto the same-sex marriage bill passed earlier
in the year, so it will not go into effect. The
Maine referendum result does not prevent the
legislature from returning to the issue in future
to pass a new bill authorizing same-sex marriages, or to expand upon the state’s very limited domestic partnership bill to enact something more akin to the civil union measures that
were previously enacted in Vermont, Connecticut and New Hampshire. ••• Voters in Washington State voted to affirm the legislature’s action in passing an expansion of the state’s
domestic partnership law to approximate the legal rights and responsibilities of marriage under state law. ••• In Kalamazoo, Michigan,
voters decisively rejected a referendum that
would have repealed a recently enacted city ordinance that bans discrimination on the basis of
sexual orientation and gender identity. •••
Charles Pugh, an openly-gay former Fox TV
news anchor, won the most votes of any candidate for the city council in Detroit, as a result of
which he will serve as City Council President.
He is the city’s first openly-gay elected official.
••• Openly gay candidates were also elected
to city councils in Salt Lake City UT, St. Petersburg FL, Akron OH, and Maplewood MN. •••
In Houston, openly-lesbian City Controller Annise Parker received the highest vote total in a
multi-candidate election for mayor and will
compete in a run-off with the second-highest
vote getter. ••• In New Jersey, Gov. Jon
Corzine was defeated for re-election by Christopher Christie. As Christie has pledged to veto
Lesbian/Gay Law Notes
any same-sex marriage measure, the election
result sent New Jersey gay rights advocates
back to the legislature urging a passage of the
pending marriage equality bill by the lameduck session so that it could be signed into law
before the end of his term by Gov. Corzine. The
alternative is to put off the hope for enacting
same-sex marriage in the state for at least four
years.
California — The Proposition 8 repeal effort
was launched on November 16, when
signature-gathering began in support of a proposal to amend the California Constitution to
replace the amendment enacted last year that
limits marriage in California to the union of one
man and one woman. Although there was no
consensus among activists in the state as to
whether 2010 or 2012 would be a better year to
target this campaign, those favoring the earlier
attempt decided to proceed on their own without a united community behind them. Additionally, lacking access to big funding, they announced they would attempt to meet the
signature threshold largely through the efforts
of volunteers and on-line social networking.
Reuters, Nov. 16.
U.S. Department of Housing and Urban Development — HUD announced that it was undertaking a national study of housing discrimination against LGBT people, and is proposing
regulations to ban such discrimination in public housing programs. The National Multi
Housing Council, an industry association,
stated support for the HUD proposal. The Federal Fair Housing Act of 1968, which bans
housing discrimination, does not include sexual orientation or gender identity, but does include familial status and handicap as a result of
a 1988 amendment, in addition to the original
categories of race, color, religion, sex or national origin. National gay rights legislation
first introduced in the 1970s and reintroduced
until the early 1990s would have added sexual
orientation to the housing law, but in 1993 gay
rights advocates changed their national legislative strategy to focus solely on employment, so
there is no pending federal legislation addressing LGBT housing discrimination.
American Medical Association — The
American Medical Association’s policymaking arm recently passed resolutions asserting that denial of the right to marry to same-sex
couples is detrimental to the health of gay people, noting studies showing that married persons generally enjoy better health than unmarried persons. The AMA also approved a
resolution stating that the “don’t ask, don’t tell”
policy on military service by gay people is detrimental to their mental and physical health,
and violates the principle of doctor-patient confidentiality by requiring military doctors to
“out” gay service members who reveal their
sexual orientation in the course of seeking
health care. According to the AMA, the policy
December 2009
has a chilling effect on military patients, who
confront the dilemma of compromising the
quality of their health care by concealing their
sexuality from their doctors or risk being discharged under the policy if they are honest with
their doctors. Houston Chronicle, Nov. 11.
Presbyterian Church — The San Francisco
Chronicle (Nov. 11) has reported what is
claimed to be the first ordination of an openlylesbian woman as a minister in the Presbyterian
Church. Lisa Larges has been ordained a deacon at Noe Valley Ministry Presbyterian
Church, by a Nov. 10 vote of the local presbytery. There are other openly-lesbian minister of
the church, but the article claims that none of
them were openly lesbian at the time of their ordination. The General Assembly of the Presbyterian Church USA voted to end its ban on
openly gay or lesbian ministers last year, but
that vote was not binding because it was rejected by a majority of the country’s presbyteries, the local church bodies. Regional presbyteries are allowed to consider individual
candidates who submit statements explaining
their disagreement with the church’s policy,
which Rev. Larges did.
Child-Abusing Priests — Disputing a canard
propagated by the Vatican as scandals involving child-abusing priests surfaced a few years
back, a report commissioned by the U.S. Conference of Catholic Bishops and prepared by
researchers at John Jay College of Criminal
Justice in New York indicates that homosexuality was not a “predictor” of child abuse by
priests. When the crisis broke, the Vatican had
ordered a review of seminary admissions policies in the United States to ensure that nobody
who evidenced any inclination to homosexuality might be admitted to study for the priesthood. But research now shows no correlation
between sexual orientation and a disposition to
abuse children sexually. Associated Press, Nov.
18.
Broward County, Florida -Broward’s first
openly gay mayor, Ken Keechl, was sworn into
office on Nov. 17. The job of mayor rotates
among the elected county commissioners, and
Keechl was selected by his fellow commissioners for the job. Miami Herald, Nov. 18. A.S.L.
Argentina Gay Couple Wins Marriage Rights
The Associated Press reported on Nov. 17 that a
gay male couple in Buenos Aires, Jose Maria Di
Bello and Alex Freyre, are planning to marry,
now that a trial judge has ruled that they are entitled to do so as a matter of constitutional interpretation and the mayor of the city has announced that the city will not appeal. Judge
Gabriela Seijas ruled that the right of equality
guaranteed by the Argentine constitution was
offended by laws limiting marriage to a man
and a woman, and ordered the city to issue a
marriage license to the couple. Mayor Mauricio
221
Marci’s announcement that the city would not
appeal the ruling effectively invites other
same-sex couples to apply for licenses and obtain judicial orders. “We have to live with and
accept this reality: the world is moving in this
direction,” AP quoted him as telling the local
press. According to the article, Freyre is executive director of the Buenos Aires AIDS Foundation, and Di Bello is an executive with the Argentine Red Cross. A.S.L.
International Notes
Australia — The government of Australia’s
Capital Territory is again attempting to provide
equal partnership rights to same-sex couples,
having suffered a veto of an earlier attempt by
the federal government. On Nov. 11 the ACT
parliament passed laws that would allow
same-sex couples to formalize civil partnerships through a legally-binding ceremony, according to a Nov. 12 report in the Australian.
Prime Minister Kevin Rudd, who had vowed
not to overrule such legislation during his campaign for office, at first seemed inclined to back
away from this promise, as newspapers speculated that the national government would again
intervene. But on Nov. 27, the Canberra Times
reported that a compromise had been reached,
quoting ACT Attorney General Simon Corbell
as stating that the federal government would allow the measure to take effect provided some
amendments were incorporated concerning
procedural matters. The question at month’s
end was whether local legislators would be willing to accept the amendments, which would
tend to distinguish these same-sex partnerships from marriages in various ways.
Austria — The Austrian federal government
has introduced a bill, approved at the cabinet
level on Nov. 17, to be voted upon by the national parliament on Dec. 10, which would establish registered partnerships for same-sex
couples. The partnership bill provides many of
the rights and responsibilities of marriage, but
it preserves numerous distinctions, which drew
criticism from Dr. Helmut Graupner, who characterized the measure on national television as
an act of segregation, discrimination, and hostility towards children being raised by samesex couples.
Canada — The Canadian Press Association
reports that a federal judge, Yves de Montigny,
has ordered a Refugee Board to reconsider the
petition for asylum in Canada by a lesbian from
the United States who is fleeing after suffering
harassment and threats from fellow soldiers at a
U.S. military base. Under the U.S. Don’t Ask
Don’t Tell military policy that the Obama Administration continues to enforce while the
Pentagon purportedly tries to figure out how to
end it without invoking troop riots like those
that broke out in Canada, the U.K., and other
major western countries after they dropped
222
their bans on gay military service (not!!!), Bethany Smith could not go to her superior officers
for help in dealing with her persecutors, because that would lead to her discharge under
the policy (and possibly even prosecution under the military’s unconstitutional but still in
force sodomy law, if eager military investigators
whose mission is to rid the armed forces of gay
people at all costs dig into an investigation and
produce evidence of SODOMY). In a major embarrassment to the Canadian government, the
judge decided that the Refugee Board was required by Canadian law to seriously consider
whether Ms. Smith would be subjected to persecution under American policy if returned to
the U.S., and not to dismiss the argument out of
hand. In 2008, the Canadian House of Commons approved a resolution calling on the government to allow American military deserters to
stay in Canada, but the government has reportedly ignored the resolution.
France — An administrative tribunal in Besancon has overruled local authorities and ordered that Emmanuelle B. be allowed to adopt a
child with her same-sex partner. France provides the legal construct of a civil solidarity
pact for same-sex couples, but it does not explicitly include the right to adopt children
December 2009
jointly. Gay and lesbian people who adopt in
France have normally been required to adopt as
single adults, but Emmanuelle B. refused to
take this route, and pursued her case to the
European Court of Human Rights, which ruled
in her favor in January 2008. However, such
rulings are not binding on the local government, but merely declarations that the local
government’s position violates France’s treaty
obligations with Europe. Now that a local tribunal has ruled, the issue is tossed back to the
government to devise an appropriate solution
for the nation. It does seem odd that France is
willing to accord a legal status with many rights
of married couples to same-sex couples, but at
the same time to refuse to allow joint adoptions,
especially insofar as many same-sex couples
are raising children together, and the denial of
rights in this respect works the most hardship
on the children. Reuters, Nov. 10.
Sweden — The Swedish Lutheran Church
has ordained its first openly-gay bishop, Eva
Brunne, and has given its priests permission to
perform weddings for same-sex couples.
Brunne was elected to be Bishop of Stockholm
in May, but was officially ordained early in November in Uppsala Cathedral.
Lesbian/Gay Law Notes
Turkey — The New York Times reported on
November 26 on what was purportedly the first
“honor killing” of an openly gay man by a member of his family who felt angered and embarrassed about the gay man’s existence. Although
it is believed that many gay men have been
killed by members of their family in this way,
the open murder of 26–year-old Ahmet Yildiz
in Istanbul by his father has stirred agitation in
the press, as murder and assault charges have
been filed in the case, even though the father,
Yahya Yildiz, ran away and is believed to be
hiding out in the Kurdish region in northern
Iraq. Yahya Yildiz is being tried in absentia.
Such cases would normally be sweeped under
the rug by Turkish authorities and ignored by
the press, but when Yahya shot Ahmet several
times on the street, one bullet also wounded a
neighbor, Ummuhan Darama, a woman who decided to make a public case out of it and to testify against Yahya. A fuller story is available at
nytimes.com.
United Kingdom — Openly gay ScottishAmerican actor Alan Cumming has been inducted into the Order of the British Empire in a
ceremony conducted on November 24 by Princess Ann, inw hich he was recognized for his
services to film, theatre and arts and for his
work for gay rights. Cumming told the press that
the acknowledgment of his work for gay rights
was “the most important thing.” A.S.L.
AIDS & RELATED LEGAL NOTES
U.S. HIV Entry Ban Ended
On November 2, the Obama Administration
published in the Federal Register the final
regulation ending the formal exclusion of
HIV+ individuals from entering the United
States. Congress repealed the statutory requirement for the ban in 2008, but the Bush Administration took no steps to repeal the regulation
that kept the ban in force. Ending the ban was a
position in the Obama platform during the 2008
election, so upon confirmation of the necessary
officials – a process that was stretched out by
Republicans in the Senate who managed to delay many confirmations, including relevant
confirmations in the Homeland Security and
Immigration operations – efforts were initiated
to publish a proposed regulation in the Federal
Register in order to provide the necessary public comment period before a final regulation
could be issued. In a ceremony at the White
House on October 30 for the president’s signature of the Ryan White HIV/AIDS Treatment
Extension Act of 2009, President Obama credited the Bush Administration and Congress
with having begun the process of changing the
policy in 2008, and announced that the final
regulation, to be published on November 2,
would take effect as per legal requirements 60
days after publication, essentially at the begin-
ning of 2010. In his remarks, the president observed that the HIV travel ban had been instituted 22 years ago “in a decision rooted in fear
rather than fact,” and acknowledged that the
continuing ban had stood in the way of the U.S.
taking a leadership role in combating the global
HIV epidemic. Indeed, since the establishment
of the ban, major international AIDS conferences have not been held in the United States
because HIV+ participants would not easily be
able to attend without seeking demeaning waivers from U.S. immigration authorities. Hopefully, an international AIDS conference can
now be planned to be held in the United States.
Gay City News, Nov. 12, 2009. A.S.L.
AIDS Litigation Notes
Kansas — Recently, the Kansas Supreme Court
upheld criminal convictions of an HIV+ man
for exposing various women to HIV through
sexual intercourse, in State v. Richardson, 289
Kan. 118, 289 P.2d 696 (2009), for acts performed in Lyon County. Subsequently, Richardson was prosecuted in Douglas County on
the same charges for acts involving additional
women. In State v. Richardson, 2009 WL
3837626 (Nov. 13, 2009), the Kansas Court of
Appeals upheld his convictions on the Douglas
County charges. A major contention on the ap-
peal by Richardson was that as a result of antiretroviral therapy his viral load had been reduced to undetectable levels before he had sexual relations with the victims in the Douglas
County case, and thus he could not be found to
have actually exposed them to a deadly disease
or to have the necessary mens rea for the offense. He also argued that the charge to the jury
was flawed in assuming rather than presenting
as a question for decision whether HIV infection in this effectively treated state constitutes a
“deadly disease.” Since the statute does not
specifically criminalized exposure to HIV,
speaking rather in terms of exposure to a deadly
disease, Richardson contended that this issue
must be submitted to the jury through a proper
question. The court of appeals agreed with
Richardson that the jury charge was flawed, but
found it was not fatally flawed and that the trial
record presented to the jury could support convictions. Richardson was allowed to present expert testimony on the degree of risk he presented, and the court concluded that the jury
could have acquitted had it agreed with Richardson’s argument that he had not placed the
victims at risk. The court rejected various other
claims raised on appeal, approving lengthy probationary sentences to be served by Richardson on top of the sentences from the Lyon
County prosecution.
Lesbian/Gay Law Notes
Wisconsin — In a pending lawsuit alleging
discriminatory denial of medical services to an
HIV+ individual, U.S. District Judge J.P.
Stadtmueller ruled on Nov. 9 that the plaintiff,
who was alleging severe emotional and psychological distress, had put her mental condition in
issue in the case and thus must submit to an independent psychological examination as part
of pre-trial discovery. Rose v. Cahee, 2009 WL
3756985 (E.D.Wis.) While acknowledging that
an emotional distress claim, as such, does not
necessarily subject a plaintiff to a requirement
to submit to such testing, the court observed
that in this case the claim went beyond claiming damages arising from “natural distress, humiliation, and embarrassment suffered as a result of discriminatory treatment… Instead,
Rose claims ‘serious psychological and emotional distress’ and alleges continuing emotional harm, a deterioration in her mental state,
and an increase in her medications following
the defendants’ refusal to prive her with care.”
Under the circumstances, the court determined
that defendants should be able to secure such
an examination, which would not involve any
invasive procedures. A.S.L.
Social Security Disability Cases
California — In Palmer v. Astrue, 2009 WL
3734126 (C.D.Cal., Nov. 4, 2009), U.S. Magistrate Judge Carolyn Turchin found that a denial
of disability benefits to an HIV+ plaintiff had
to be remanded because the ALJ had insufficiently developed the record as to jobs that the
plaintiff might perform in the current economy.
December 2009
To qualify for benefits, a plaintiff must established that they are disabled from meaningful
employment. In this case, the court found, there
were gaps in the factual record that would have
to be completed on remand.
Florida — In Stroman v. Astrue, 2009 WL
3669640 (S.D.Fla., Nov. 4, 2009), District
Judge James L. King remanded the HIV+
plaintiff’s disability claim back to the agency,
finding that the ALJ had unaccountably failed
to note or accord any weight in his opinion to
the fact that the plaintiff had been found to be
disabled under the immune system disorders
rule and that the case had been remanded to the
judge to determine when the disability began;
furthermore, the ALJ had rejected the opinion
of the plaintiff’s treating physician without any
more than a generalized disapproval of it,
whereas precedent of the circuit require a detailed refutation of a treating physician’s opinion by reference to specific contrary evidence.
Thus, the case had to be remanded for a new determination whether the plaintiff qualified for
disability benefits.
Florida — In Grice v. Astrue, 2009 WL
3878467 (S.D.Fla., Nov. 18, 2009), District
Judge Paul C. Huck approved a report by Magistrate Judge John J. O’Sullivan finding that an
ALJ had committed reversible error in ruling on
a disability claim by an HIV+ plaintiff in that
the ALJ erred in determining the plaintiff’s residual functional capacity by giving no explanation for according lesser weight to the treating physician’s opinion than to other evidence.
Washington — In Brewitt v. Astrue, 2009 WL
3711975 (W.D.Wash., Nov. 3, 2009), District
223
Judge Robert J. Bryan upheld a determination
by the agency that the HIV+ plaintiff was not
entitled to disability benefits because he retained sufficient residual functioning to be able
to work despite his disabling condition. A.S.L.
International AIDS Notes
Botswana — MMEGI/The Reporter reported on
Nov. 25 that Christopher Molomo, the head of
the National AIDS Coordinating Agency
(NACA), had revealed that NACA has recruited
gay people in Botswana to assist in the agency’s
efforts to combat the HIV epidemic in that
country. He also said that the agency has been
providing counselling and treatment to gay men
and provide services to all affected by HIV, regardless how they came to contract the virus.
The statement was considered newsworthy because Botswana, in common with most African
nations, considers gay sex a serious criminal offense, and the gay community in the country is
very much underground.
Kenya — Time.com reported on Nov. 8 that
the Kenyan government, acknowledging the
need to involve the country’s underground gay
community in the fight against HIV, has “shed a
long-time refusal to acknowledge the existence
of homosexuality and will launch a survey of
gay attitudes and behaviors in its three biggest
cities next year.” Sex between men is illegal in
Kenya, a felony with a potential penalty of up to
14 years in prison. Dr. Nicholas Muraguri, director of the National AIDS/STI Control Program, told Time that “we cannot as a country socially exclude these groups and hope that we
will win the war against HIV at the same time.”
A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
NCLR Seeks Senior Attorney for Federal Policy
LESBIAN & GAY & RELATED LEGAL ISSUES:
The National Center for Lesbian Rights is accepting applications for the position of Senior
Attorney for Federal Policy for a two-year term
in the organization’s Washington, D.C., Regional Office. This is primarily a position for a
legislative lawyer interested in lobbying and
education on LGBT issues in the context of the
federal legislative agenda. This is not a litigation position. A minimum of five years experience and active license to practice from any
state bar are prerequisites. The fulltime position is available immediately, offering competitive non-profit salary and benefits. Cover letter,
resume, 5–10 page legal research writing sample, and three work references should be submitted by email to Joshua Delgado, Legal Assistant, NCLR, at [email protected].
Alexandre, Michele, Sex, Drugs, Rock & Roll
and Moral Dirigisme: Toward a Reformation of
Drug and Prostitution Regulation, 78 UMKC L.
Rev. 101 (Fall 2009).
Bonauto, Mary L., and Evan Wolfson, Advancing the Freedom to Marry in America, 36
Hum. Rts. No. 3, 11 (Summer 2009).
Brown, Emily J., When Insiders Become Outsiders: Parental Objections to Public School Sex
Education Programs, 59 Duke L.J. 109 (Oct.
2009).
Bruch, Stephanie A., Politicking from the
Pulpit: An Analysis of the IRS’s Current Section
501(c)(3) Enforcement Efforts and How It is
Costing America, 53 St. Louis Univ. L.J. 1253
(Summer 2009).
Crocker, Thomas P., From Privacy to Liberty:
The Fourth Amendment After Lawrence, 57
UCLA L. Rev. 1 (Oct. 2009).
Davis, Peggy Cooper, Responsive Constitutionalism and the Idea of Dignity, 11 U. Pa. J.
Const. L. 1373 (July 2009).
Defterderian, Varty, Fair Housing Council v.
Roommates, Inc.: A New Path for Section 230
Immunity, 24 Berkeley Tech. L. J. 563 (Annual
Review 2009) (Note).
Eskridge, William N., Jr., A Pluralist Theory
of the Equal Protection Clause, 11 U. Pa. J.
Const. L. 1239 (July 2009).
Galles, Kristen, Human Rights Heroes: Evan
Wolfson and Mary Bonauto, 36 Hum. Rts. No.
3, 26 (Summer 2009) (Tribute to two leading
advocates of marriage rights for same-sex couples).
Garcia, Belkys, Reimagining the Right to
Commercial Sex: The Impact of Lawrence v.
Texas on Prostitution Statutes, 9 N.Y. City L.
Rev. 161 (Winter 2005).
Goldberg, Suzanne B., Marriage As Monopoly: History, Tradition, Incrementalism, and the
Marriage/Civil Union Distinction, 41 Conn. L.
Rev. 1397 (July 2009)(commentary).
224
Greaney, John M., Breaking Down Barriers:
The Goodridge Decision and Modern Civil
Rights, 72 Albany L. Rev. 609 (2009) (State
Constitutional Commentary).
Hollander, Michael, Gay Rights in Uganda:
Seeking to Overturn Uganda’s Anti-Sodomy
Laws, 50 Va. J. Int’l L. 219 (Fall 2009).
Hollinger, Joan Heifetz, and Naomi Cahn,
Forming Families by Law: Adoption in America
Today, 36 Hum. Rts. No. 3, 16 (Summer 2009).
Hutchinson, Darren Lenard, Sexual Politics
and Social Change, 41 Conn. L. Rev. 1523
(July 2009) (commentary).
James, Steve, Romeo and Juliet Were Sex Offenders: An Analysis of the Age of Consent and a
Call for Reform, 78 UMKC L. Rev. 241 (Fall
2009).
Joslin, Courtney G., The Evolution of the
American Family, 36 Hum. Rts. No. 3, 2 (Summer 2009).
Kent, Alexis, A Matter of Law: The NonViolent Homosexual Advance Defense Is Insufficient Evidence, 44 U.S.F. L. Rev. 155 (Summer
2009).
Klein, Bennett, and Daniel Redman, From
Separate to Equal: Litigating Marriage Equality in a Civil Union State, 41 Conn. L. Rev.
1381 (July 2009).
Kushner, Julia Shear, The Right to Control
One’s Name, 57 UCLA L. Rev. 313 (Oct. 2009).
Logan, Wayne A., Contingent Constitutionalism: State and Local Criminal Laws and the
Applicability of Federal Constitutional Rights,
51 Wm. & Mary L. Rev. 143 (Oct. 2009).
Mabry, Cynthia R., Joint and Shared Parenting: Valuing All Families and All Children in
the Adoption Process With an Expanded Notion
of Family, 17 Amer. Univ. J. Gender, Soc. Pol’y
& L. 659 (2009).
Minter, Shannon Price, Interstate Recognition of LGBT Families, 36 Hum. Rts. No. 3, 10
(Summer 2009).
December 2009
Norton, Helen, Constraining Public Employee Speech: Government’s Control of Its
Workers’ Speech to Protect Its Own Expression,
59 Duke L.J. 1 (Oct. 2009).
Norcott, Flemming L, Jr., The Evolution of
State Constitutional Law in Connecticut, 72 Albany L. Rev. 617 (2009) (State Constitutional
Commentary).
Nourse, Victoria F., A Tale of Two Lochners:
The Untold History of Substantive Due Process
and the Idea of Fundamental Rights, 97 Cal. L.
Rev. 751 (June 2009).
Oliviera, Gustavo, Cook v. Gates and Witt v.
Department of the Air Force: Judicial Deference
and the Future of Don’t Ask Don’t Tell, 64 U. Miami L. Rev. 397 (Oct. 2009).
Poirier, Marc R., Name Calling: Identifying
Stigma in the “Civil Union”/“Marriage” Distinction, 41 Conn. L. Rev. 1425 (July
2009)(commentary).
Schmeiser, Susan R., Changing the Immutable, 41 Conn. L. Rev. 1495 (July 2009) (commentary).
Shotwell, Kristin D., The State Marriage
Cases: Implications for Hawai’i’s Marriage
Equality Debate in the Post-Lawrence and Romer Era, 31 U. Haw. L. Rev. 653 (Summer
2009).
Stern, Judith S., and Claire V. Merkine, Brian
L. v. Administration for Children’s Services:
Ambivalence Toward Gender Identity Disorder
as a Medical Condition, 30 Women’s Rts. L.
Rptr. 543 (Spring/Summer 2009).
Tamir, Michal, and Dalia Cahana-Amitay,
“The Hebrew Language Has Not Created A Title
For Me”: A Legal and Sociolinguistic Analysis
of New-Type Families, 17 Amer. Univ. J. Gender,
Soc. Pol’y & L. 545 (2009).
Tetlow, Tania, Discriminatory Acquittal, 18
Wm. & Mary Bill Rts. J. 75 (Oct. 2009).
Weinberg, Jill D., Gender Nonconformity: An
Analysis of Perceived Sexual Orientation and
Gender Identity Protection Under the Employ-
Lesbian/Gay Law Notes
ment Non-Discrimination Act, 44 U.S.F. L. Rev.
1 (Summer 2009).
Wilder, Bruce L., Assisted Reproduction: Preserving Families and Protecting the Rights of
Individuals, 36 Hum. Rts. No. 3, 21 (Summer
2009).
Yarwood, John M., Breaking Up Is Hard to
Do: Mini-DOMA States, Migratory Same-Sex
Marriage, Divorce, and a Practical Solution to
Property Division, 89 Boston Univ. L. Rev. 1355
(Oct. 2009).
AIDS & RELATED LEGAL ISSUES:
Brostek, Major Derek J., Prosecuting an HIVRelated Crime in a Military Court-Martial: A
Primer, 2009–SEP Army Law. 29 (September
2009).
DeGroat, Diane M., When Students Test Positive, Their Privacy Fails: The Unconstitutionality of South Carolina’s HIV/AIDS Reporting Requirement, 17 Amer. Univ. J. Gender, Soc. Pol’y
& L. 751 (2009).
Johnson, Robert, The Model Law on HIV in
Southern Africa: Third World Approaches to International Law Insights Into a Human
Rights-Based Approach, 9 African Hum. Rts. L.
J. 129 (2009).
EDITOR’S NOTE:
All points of view expressed in Lesbian/Gay
Law Notes are those of identified writers, and
are not official positions of the Lesbian & Gay
Law Association of Greater New York or the LeGaL Foundation, Inc. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in
Lesbian/Gay Law Notes is welcome and will be
published subject to editing. Please address
correspondence to the Editor or send via email.