GAYS OF INDIA WIN LIBERATION FROM ARCHAIC SODOMY LAW

Summer 2009
GAYS OF INDIA WIN LIBERATION FROM ARCHAIC SODOMY LAW
The High Court in the National Capitol Territory in New Delhi ruled on July 2 that Section
377 of the India Penal Code, a legacy of the
British colonial period, violates constitutional
guarantees of privacy, liberty and equality in its
criminalization of private consensual adult sexual conduct. Ruling on a test case brought by a
non-profit advocacy group, the NAZ Foundation, the court’s ruling reportedly has nationwide effect in the world’s largest democracy
(estimated population over 1.1 billion), unless
reversed by the Supreme Court of India. NAZ
Foundation v. Government of NCT of Delh,
WP(C) No. 7455/2001.
In the immediate aftermath of the ruling,
there were signs that the government was not
inclined to challenge it in the Supreme Court,
but an outraged astrologer, Suresh Kumar
Kaushal, filed a plea with the Supreme Court
urging reversal. A two judge panel of the Supreme Court made up of Chief Justice
Balkrishnan and Justice Sathasivam issued a
notice to the government, asking for its position
concerning Kaushal’s petition challenging the
High Court ruling, but refused Kaushal’s demand that the High Court ruling be stayed immediately. The panel said that it would hear arguments on July 20 as to whether it should
review the NAZ Foundation decision, and
whether the ruling should be stayed pending
such a review. Financial Express, July 10.
The triumphant advocates for the NAZ Foundation before the High Court were Anand Grover, Trideep Pais, Shivangi Rai, Mehak Sothi,
and Tripti Tandon, who fought an eight-year
battle to their July 2 victory.
Section 377 was adopted under the British
administration in 1860, under the heading of
prohibiting “unnatural offences.” It states:
“Whoever voluntarily has carnal intercourse
against the order of nature with any man,
woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine. Explanation — Penetration is sufficient to constitute
the carnal intercourse necessary to the offence
described in this section.” Similar legislation
was imposed in many other British colonies,
LESBIAN/GAY LAW NOTES
and lingers in the laws of many of the Commonwealth countries, long after the U.K. itself decriminalized private consensual adult sex in
1967.
The NAZ Foundation first filed suit in 2001,
but the court’s initial response was to dismiss
the case as presenting a purely academic question not subject to the court’s jurisdiction. The
plaintiffs appealed the dismissal, and the Supreme Court agreed with them that the case
presented a serious legal question requiring judicial consideration. Upon the remand, the
court seems to have considered the challenge
with great enthusiasm, for it produced a deeply
researched opinion that decisively rejects virtually all of the arguments made by the defendants in defense of the statute. Along the way to
reaching its decision, the court also, incidentally but potentially of great significance to future gay rights work in India, rules that anti-gay
discrimination itself violates the Constitution.
Various provisions of the Indian Constitution
have been construed to provide the equivalent
protections for liberty and equality found in
many western constitutions influenced by the
United States Constitution’s Due Process and
Equal Protection clauses, as well as by the protection for human autonomy and dignity protected most vigorously by the European Convention on Human Rights and the Canadian
Charter of Rights, as well, most recently, as the
post-apartheid South African Constitution. As
with most former British colonies, the Indian
judiciary looks freely to precedents from other
Commonwealth countries for its jurisprudence,
and is not hesitant to quote from decisions by
the Supreme Courts of other English-speaking
nations sharing the common law and constitutional heritage. Thus, the court, in a lengthy
opinion by Chief Justice Ajit Prakash Shah,
joined by Justice S. Muralidhar, set forth a
wide-ranging analysis of these human rights
principles grounded in the legal opinions of
many nations, including the important sodomy
law rulings by the South African Constitutional
Court and the United States Supreme Court, as
well as some recent sodomy law invalidations
by smaller Asian-Pacific national courts.
Summer (July/August) 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; Steven Kolodny, 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
Section 377, whose history is recounted at
length in the ruling, is an archaic artifact of colonial rule. Prior to the colonization by western
powers, Asian countries did not have specific
criminal prohibitions on consensual sexual
conduct, and anthropologists have traced a rich
history of sexual diversity among the various
cultures of Asia and the Pacific. Indian society
itself reflects a rich blend of various religious
and ethnic traditions, including Hindu and
Buddhist teachings, Islam, and the Christianity
brought by European colonizers. Onto this rich
brew the British colonial rulers engrafted statutory law reflecting the English criminal law prohibitions on “unnatural” sex acts, statutes
worded with the ambiguity characteristic of legal descriptions of a crime “not fit to be named
among Christians,” a crime rooted in Christian
Biblical teaching. Court decisions over time
made clear that consensual anal or oral sex, regardless of the age of participants, consent, or
place of performance, would be subject to
criminal penalty under this facially vague statute.
The NAZ Foundation contended that Section
377 was unconstitutional as far as it condemned consensual anal or oral sex involving
adults acting in private. This finding could lead
to facial invalidation of the statute, or to a declaration that it was unconstitutional as applied
to specified conduct. A complicating factor in
the case is that Section 377 is used to punish a
variety of conduct extending far beyond consensual sodomy, and the government argued
that its application to sexual assault and to sexual molestation of minors was clearly constitutional. The court’s solution was to “read down”
the statute to eliminate its unconstitutional applications.
The court emphasized the diversity of Indian
society, the respect for that diversity reflected
in constitutional guarantees of liberty and
equality, and a distinction between private and
public morality in considering justifications for
criminal intervention in the private lives of individuals.
Wrote Chief Justice Shah: “[P]opular morality or public disapproval of certain acts is not a
valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on
shifting and subjective notions of right and
wrong. If there is any type of morality’ that can
pass the test of compelling state interest, it must
be constitutional’ morality and not public morality.” This quotation follows extensive discussion and quotation from the U.S. Supreme
Court’s decision in Lawrence and the European
122
Summer 2009
Court of Human Rights ruling on the Irish sodomy law in Dudgeon, a case that was controversially cited by U.S. Justice Kennedy in Lawrence. (Controversial in that some critics, on
and off the Supreme Court, dispute the legitimacy of citation to foreign precedent in constitutional cases.)
“The Constitution of India recognises, protects and celebrates diversity,” he continued.
“To stigmatise or to criminalise homosexuals
only on account of their sexual orientation
would be against the constitutional morality.”
That is, according to Chief Justice Shah, the Indian Constitution generates its own moral system, incorporating the guarantees of individual
rights that it contains. Thus, to maintain legislation that is used to harass, oppress or discriminate against gays along the lines outlined
in the NAZ Foundation’s complaint and supporting documentation is itself immoral in light
of the constitution.
Chief Justice Shah noted that the Law Commission of India has recommended changes in
the Penal Code that would remove any necessity to maintain Section 377 on the books, by
enacting specific prohibitions to deal with
non-consensual and underage sexual conduct,
and laid out a road map for the government to
enact penal laws consistent with the constitutional morality identified by the court.
Responding to the government’s defense of
the statute, Chief Justice Shah wrote: “The argument of the learned ASG that public morality
of homosexual conduct might open floodgates
of delinquent behaviour is not founded upon
any substantive material, even from such jurisdictions where sodomy laws have been abolished. Insofar as basis of this argument is concerned, as pointed out by Wolfenden
Committee, it is often no more than the expression of revulsion against what is regarded as unnatural, sinful or disgusting. Moral indignation,
howsoever strong, is not a valid basis for overriding individuals’s fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the
argument of public morality, even if it be the
majoritarian view. In Indian context, the latest
report (172nd) of Law Commission on the subject instead shows heightened realisation about
urgent need to follow global trends on the issue
of sexual offences. In fact, the admitted case of
Union of India that Section 377 IPC has generally been used in cases of sexual abuse or child
abuse, and conversely that it has hardly ever
been used in cases of consenting adults, shows
that criminalisation of adult same-sex conduct
does not serve any public interest. The compelling state interest rather demands that public
health measures are strengthened by decriminalisation of such activity, so that they can
be identified and better focused upon.”
The reference to Wolfenden Committee is, of
course, to the British Parliamentary Committee
that recommended sodomy law reform in the
1950s, resulting in the United Kingdom’s 1967
reform of its sodomy law. The reference to public health measures arose from the divided response of the Indian government to this lawsuit,
as the Justice Ministry defended the statute
while the Health Ministry filed a brief arguing
that Section 377 had proved an impediment to
effective public health measures to combat
HIV/AIDS.
Western press reporting on the opinion was
initially mistaken as to the effect of the ruling,
forgetting that different nations have their own
judicial systems, court structures, and relation-
Lesbian/Gay Law Notes
ships of judicial to legislative power. According
to an article published in The Times of India
shortly after the opinion was released on July 2,
the Supreme Court of India has made clear in
recent decisions that a ruling of this sort by the
High Court of any province or state on a constitutional question of first impression will have
national application unless reversed or modified by the Supreme Court.
In the weeks leading up to the July 2 ruling,
there had been intimations by the government
that it might take up the question of reforming
Sec. 377 so as to exempt private adult consensual conduct from its scope, but those trial balloons floated in the media immediately brought
protests from some religious authorities, followed by a cooling of reformist ardor from government spokespersons. Whether the July 2
decision will affect that political process is an
open question. Certainly, the misrepresentation
of the opinion by opponents of sodomy law reform threatened to pollute the debate right of
the bat, as they wrongly asserted that the decision gave license to rapists and child molesters,
precisely what the High Court had avoided by
“reading down” the statute rather than declaring it facially invalid.
On another front, the question whether this
ruling will have extra-territorial influence in
other former British colonies that maintain
similar statutes of similar prevnance was the
point of much speculation. A justice official in
Singapore, Law Minister K. Shanmugam, responded to this question by asserting that the
government there is inclined to follow public
opinion, which still overwhelmingly disapproves of homosexual conduct, according to a
July 6 report in the Straits Times. Only time will
tell if the India decision contributes to a trend
in the other direction. A.S.L.
NEW HAMPSHIRE LEGISLATES FOR SAME-SEX MARRIAGES
Following in the wake of statutory authorization
for same-sex marriages passed in the neighboring New England states of Connecticut, Vermont and Maine in recent months, New Hampshire joined the regional trend, enacting a
package of bills on June 3 making it the fifth
state out of the six New England states to
authorize same-sex marriage.
New Hampshire’s path to enactment was
complicated by Governor John Lynch’s agonizing approach to the issue. Lynch had signed a
civil union bill into law recently, and repeatedly
stated that he believed this was sufficient to
deal with the issue. Until the proposed marriage law achieved initial passage in each
house, by majorities significant in number but
not large enough to override a veto, Lynch refused to state whether he would approve or veto
the measure. Furious lobbying of the governor
ensued from opponents and proponents. Finally, Lynch announced that although he re-
mained personally opposed to same-sex marriage, he would sign the measure into law if it
were to be accompanied by legislation explicitly providing broad exemptions and protections for religious entities that might object to
same-sex marriage.
The legislature promptly got to work negotiating companion legislation to meet the governor’s requirements. Although an initial draft
fell short of majority support in one house, ultimately both houses agreed on a measure that
was passed and sent to the governor, who then
signed the package of bills into law. Marriages
will become available for same-sex partners in
New Hampshire on January 1, 2010, exactly
two years after civil unions became available.
The marriage bill, HB 436, provides as follows: “Marriage is the legally recognized union
of 2 people. Any person who otherwise meets
the eligibility requirements of this chapter may
marry any other eligible person regardless of
gender. Each party to a marriage shall be designated bride,’ groom,’ or spouse.’” Avoiding true
equality, the bill sets a higher age for same-sex
marriages than for different sex marriages, requiring same-sex couples to be at least 18 while
different sex couples can be as young as 14
(male) and 13 (female). Members of the clergy
are not required to perform marriages that
would violate their religious views. Civil unions
contracted outside New Hampshire will be recognized as marriages in New Hampshire, provided the parties would not have been prohibited from marrying in New Hampshire under
the provision restricting who can marry based
on legal/family relationships. For New Hampshire couples who have entered into civil unions, there are alternative mechanisms for
transforming their relationships into marriages.
A separate bill, HB 73, titled “An Act affirming religious freedom protections with regard to
marriage and prohibiting the establishment of
Lesbian/Gay Law Notes
civil unions on or after January 1, 2010,” was
also enacted as part of the package. It provides
that religious organizations, very broadly defined, “shall not be required to provide services, accommodations, advantages, facilities,
goods, or privileges to an individual is such request for such services… is related to the solemnization of a marriage, the celebration of a
marriage, or the promotion of marriage through
religious counseling, programs, courses, retreats, or housing designated for married individuals is in violation of his or her religious beliefs and faith.” The measure further provides
that refusal of services shall not give rise to any
legal cause of action. Fraternal benefit societies
are free to refuse to recognize same-sex marriages and to deny eligibility for insurance
benefits to same-sex spouses. The bill also
makes clear that no new civil unions may be
authorized after January 1, 2010, a point that
the marriage bill had failed to make explicit.
Another bill, HB 310, further makes explicit
that clergy and religious organizations are free
to refuse to perform marriages that would vio-
Summer 2009
late the tenets of their faiths. It goes further than
religious exemptions enacted in other states by
providing that “Members of the clergy.... or
other persons otherwise authorized under law
to solemnize a marriage shall not be obligated
or otherwise required by law to officiate at any
particular civil marriage or religious rite of
marriage in violation of their right to free exercise of religion protected by the First Amendment to the United States Constitution or by
part I, article 5 of the New Hampshire constitution.” Thus, even people who are not members
of the clergy but who are authorized to perform
civil wedding ceremonies, such as government
officials or judges or those known in New
Hampshire as “marital masters” may also enjoy their own personal religious exemption.
The bills enacted in addition to the main
marriage bill articulate a very broad religious
exemption, perhaps the broadest yet adopted,
but still do not go to the lengths that some religious advocates were seeking, as Governor
Lynch and the legislature did not give in to
those who asserted that individuals and private
123
businesses not affiliated with any religious association should also be given a pass on having
to deal with the issue of same-sex marriage
(apart from a duty to officiate at an actual ceremony). Thus, the non-sectarian catering business whose owners from personal religious conviction do not want to cater receptions for
same-sex weddings will just have to get over it,
or be in violation of the state’s public accommodations law.
While New Hampshire, when added to the
other New England states that have adopted
same-sex marriage together with Massachusetts and Iowa, where marriage is available as a
result of decisions of the highest state courts,
make six jurisdictions to allow same-sex marriages, the most recent enactments will not go
into effect for some time, and Maine may never
go into effect if opponents obtain sufficient signatures for a repeal initiative before the law’s
effect date later this summer and then win the
initiative vote. Both sides were gearing up for a
potentially fierce battle in Maine, as state officials certified the necessary language for the
petitions and advertising pro and con began to
appear in the media around the state. A.S.L.
LESBIAN/GAY LEGAL NEWS
Nevada Enacts Inclusive Domestic Partnership
Act, Bans Discrimination in Public
Accommodations
In a surprise move, several Nevada state legislators in each house changed their votes in order to help override a veto by Governor Jim
Gibbons of a Domestic Partnership Act, S.B.
283, that will provide a civil alternative to marriage for all adult different-sex couples as well
as same-sex couples. The legislature moved
with alacrity upon learning that the governor
had carried out his promise to veto the bill, with
the Senate voting 14–7 on Saturday, May 30,
and the Assembly voting 28–14 on Sunday,
May 31. In each house, the measure received
exactly the 2/3 majority necessary to override
the governor’s veto. While some might comment that the bill was thus enacted by a “slim”
margin, actually upon reflection it was enacted
by overwhelming majorities in both houses,
which is the requirement for enacting a bill over
a chief executive’s veto. The law goes into effect
on October 1, 2009.
Meanwhile, and somewhat overlooked in the
shuffle, the legislature also amended the state’s
civil rights law to ban discrimination in public
accommodations on the basis of sexual orientation, approving S.B. 207, which passed the
Senate on April 8 by a vote of 19–2 and the Assembly on May 15 by a vote of 37–3, and was
signed into law by the Governor on May 22. The
law takes effect on October 1, 2009.
The governor had argued that the domestic
partnership bill was unnecessary, because un-
married couples could contract for many of the
rights and responsibilities that the bill would
confer. This is an unpersuasive argument, because many legal rights accorded married couples are not obtainable by contract, and the
contracting process itself requires a degree of
foresight and financial resources that are not
common among the general population. (There
is a good reason that so many people die intestate, right?)
S.B. 283, in common with most (but not all)
other domestic partnership laws, imposes an
eligibility requirement that the partners share a
common household, although it allows for the
possibility that they may only reside together on
a part-time basis. It provides that, with few exceptions, domestic partners be treated the same
as married spouses under Nevada law, and that
statutes with gendered references in them receive gender-neutral interpretations to effectuate this intent. The largest exception, however,
is a carve-out for employment-related health
benefits, as the statute says it can’t be interpreted to require or to forbid employers to extend health care benefits to domestic partners
of their employees. Whether to do so is left up to
employers. Of course, the state could not compel private sector employers to extend such
benefits, due to federal preemption of the regulation of employee benefits plans under the
Employee Retirement Income Security Act
(ERISA), but the failure to extend public sector
benefits marks a difference from the DP and
civil union laws of some other jurisdictions. The
statute sets a minimum age of 18 for entering
into a domestic partnership.
Getting into a domestic partnership is a simple procedure involving the filing of forms. The
statute makes clear that no “solemnization
ceremony” is required, and it is left up to the
parties to decide whether they want a ceremony.
Religious organizations are free to decide
whether they want to participate or abstain.
Getting out of a domestic partnership will be
a simple matter, provided the couple hasn’t
been partnered more than five years, is not raising children, and has no common property to be
divided. The divorce laws are made available
for couples who don’t qualify for the simplified
procedure.
The statute provides that couples united in
domestic partnerships or civil unions in other
jurisdictions that are “substantially equivalent” to Nevada domestic partnerships, will be
recognized as domestic partnerships in Nevada. However, the statute does not provide for
any kind of recognition of same-sex marriages
formed in other jurisdictions, presumably because the Nevada marriage amendment forbids
the recognition of marriages between same-sex
couples. This does leave open the possibility, of
course, that Nevada government agencies and
courts might decide that under principles of
comity they should recognize out-of-state
same-sex marriages as domestic partnerships
when the parties happen to be or live in Nevada, which is the position that the New Jersey
Attorney General has taken, but that result is
not certain viewed prospectively.
124
The statute says that the law should be “construed liberally to the effect of resolving any
doubt or question in favor of finding that a domestic partnership is a valid civil contract entitled to be treated in all respects under the laws
of this State as any other civil contract created
pursuant to [the marriage law] would be
treated.”
It will be interesting to see whether
different-sex couples will select the DP option
in large numbers. When the “pact civil” was
made available in France is a form of “marriage
light” for all couples, whether same-sex or
different-sex, young secular couples flocked to
the alternative, but the comparison is inexact
because the pact civil did not include all the
rights of marriage, although it did include national law rights, whereas Nevada bestows only
state law rights on its domestic partners, which
is all it could purport to do so long as the federal
Defense of Marriage Act remains in force.
A.S.L.
Delaware Bans Sexual Orientation Discrimination
On July 2, Delaware Governor Jack Markell
signed into law S.B. 121, which inserts into the
state’s human rights law a ban on discrimination on the basis of “sexual orientation” wherever discrimination is prohibited on other bases
such as race or sex or religion. The discrimination ban will extend to employment, public
works contracting, housing, equal accommodations, and insurance. Of course, due to federal
preemption, it will not deal with private sector
employee benefits. A similar bill had passed
the lower house of the legislature several times
over the years, but had always died in Senate
committees. This year, for the first time, it came
to the floor and was passed by a comfortable
margin. Governor Markell had testified in favor
of prior versions of the bill when he was State
Treasurer, so his approval was expected and
promptly given.
The bill differs from other state “gay rights”
laws recently passed in not extending protection against discrimination on the basis of gender identity or expression. Beginning in 2003,
every other state law on this subject has routinely included protection for transgendered
people, including new laws enacted in Colorado, Illinois, Iowa, Maine, New Mexico, Oregon, and Washington State. In addition, several
states that had previously enacted laws covering only sexual orientation passed amendments
in recent years to add gender identity, so its
omission from the Delaware statute is anomalous.
The law includes an express exemption for
religious organizations, phrased as follows:
“The term ‘employer’ with respect to discriminatory practices based upon sexual orientation
does not include religious corporations, associations or societies whether supported, in
Summer 2009
whole or in part, by government appropriations,
except where the duties of the employment or
employment opportunity pertain solely to activities of the organization that generate unrelated business taxable income subject to taxation under § 511(a) of the Internal Revenue
Code of 1986.” The law also expressly states
that employers will not be required to extend
employee benefits to anybody as a result of the
addition of sexual orientation to the law.
This enactment makes Delaware the 22nd
American jurisdiction (21 states plus the District of Columbia) to adopt a law banning sexual
orientation discrimination. A.S.L.
Wisconsin Enacts Limited Domestic Partnership
Status and Rights in Annual Budget Bill
What if a state legislature and a governor would
like to recognize and extend legal benefits to
same-sex couples in a state whose constitution
forbids either same-sex marriage or the creation of any legal status similar to or approximating marriage for unmarried partners, and they
don’t want to wait for efforts to repeal the state
constitutional provision? What Wisconsin officials have done, in this instance, is to create a
domestic partnership mechanism that extends
a substantial menu of rights but withholds
enough of the core rights of marriage to give
them space to argue, if need be, that the resulting status is not similar to or substantially the
same as marriage, and thus not prohibited by
the state constitution.
In A.B. 75, the state’s annual budget bill that
was signed into law on June 29 by Governor Jim
Doyle, the state establishes a domestic partnership status open to adult same-sex partners who
live together. It goes into effect on August 3.
Wisconsin becomes the first midwestern state
to enact some measure of legal rights and protections for same-sex partners, following close
on the legalization of same-sex marriage in
Iowa as a result of a state Supreme Court decision a few months earlier.
Scattered throughout the bill are a series of
amendments to various provisions of state law,
adding the phrase “or domestic partner” where
the term spouse appears. The list of rights and
benefits affected is fairly extensive, but far
short of equality with marriage. Among the most
significant are: family leave to care for a sick or
dying partner, hospital visitation rights, ability
to admit an incapacitated partner to a nursing
facility and to access a partner’s medical records, death benefits for partners of public safety
employees killed in the line of duty, ability to
file wrongful death lawsuits and seek crime victim compensation and notification, ability to
transfer real estate between partners without
paying a fee, presumption of joint tenancy, testimonial immunity, intestate succession rights
and the same rights as spouses regarding power
of attorney for property and finances, ability to
Lesbian/Gay Law Notes
consent to an autopsy or to approve an anatomical donation. In addition, a separate provision
sets up an entitlement to health benefits for
both same-sex and different-sex unmarried
partners of state employees.
The measure was prepared with the clear expectation that opponents of gay rights will file
suit seeking to have it invalidated under the
marriage amendment. Now everybody holds
their breath, especially given a ruling in neighboring Michigan that a similar state constitutional amendment barred the extension of similar partnership benefits. A.S.L.
Justice Department Brief Urging Dismissal of
California DOMA Challenge Stirs Controversy
Over Obama Administration’s Course on Gay
Rights, Followed by a Trickle of Positive Steps
On June 11, the Civil Division of the U.S. Justice Department filed a motion to dismiss the
case of Smelt v. United States of America, 2009
WL 1683906 [Westlaw citation of brief]
(C.D.Cal.), and set off a firestorm — perhaps
inadvertently — when gay bloggers accused
the Obama Administration of equating samesex relationships with incest and pedophilia.
The lawsuit, originally filed in California Superior Court by Arthur Smelt and Christopher
Hammer, who married during the summer of
2008 prior to the passage of Proposition 8,
sought a declaration that the federal Defense of
Marriage Act (DOMA) is unconstitutional. Under Section 2 of DOMA, other states would be
free of any requirement under the Full Faith and
Credit Clause of the Constitution to recognize
the Smelt-Hammer marriage, and under Section 3 of DOMA, the federal government will
not recognize their marriage for any purpose.
The DOJ motion and brief were in three
parts. The first argued that the federal district
court, to which the government had removed
the case from state court, lacked jurisdiction to
decide it, because the matter was filed by the
plaintiffs in state court after a previous filing in
federal court was withdrawn when that court refused to grant a motion to proceed in forma pauperis with waiver of filing fees. The argument
here, apparently relatively well-recognized in
federal precedents, is that removal does not
confer federal jurisdiction when the original
state court in which a matter was filed lacked
jurisdiction, and state courts do not generally
have jurisdiction to entertain suits seeking a
declaration that a federal law is unconstitutional because of sovereign immunity, which
Congress has not expressly waived with respect
to challenges to DOMA.
Secondly, the DOJ brief argued that the
plaintiffs lack standing because they have neither sought and been denied recognition of
their marriage in other states in reliance on
DOMA, nor have they applied and been rejected for any federal benefit in reliance on
Lesbian/Gay Law Notes
DOMA. The DOJ brief argues that there is thus
no concrete injury, only a hypothetical future
injury that cannot serve as the basis for personal standing. This argument seems rather
tenuous, since it is clear, at least as to Section 3
of DOMA, that it would be futile for Smelt and
Hammer to apply for any federal benefit premised on recognition of their marriage, and it is
more than mere speculation that they would be
turned down if they did. At the very least, standing to challenge Section 3 should not be an issue. On the other hand, courts of other states
might rely on comity principles or their own
state mini-DOMAs or anti-marriage constitutional amendments to refuse to recognize the
Smelt-Hammer marriage, with no need to invoke Section 2 of DOMA, in which case they
would not have been denied recognition due to
Section 2, so their standing to challenge that
provision is a bit more speculative. (The pending DOMA challenge in federal district court in
Boston brought by Gay & Lesbian Advocates &
Defenders targets only Section 3.)
Finally, and most controversially, the DOJ argued that DOMA is clearly constitutional — so
clearly constitutional that the suit should be
dismissed out of hand as wholly lacking in
merit — and this is the main source of controversy. DOJ argued that DOMA is not discriminatory on the basis of sex or sexual orientation,
and that it would clearly survive rationality review based on several asserted policy justifications.
As to the attack on Section 2, the brief
pointed out that states have traditionally had
the right under FFCC jurisprudence to refuse to
recognize marriages that violate their own public policies, and cited several cases as examples. Unfortunately for DOJ, the examples cited
included decisions refusing to recognize marriages between first cousins, involving a spouse
who was under the age of consent in the jurisdiction where recognition was sought, and marriage between an uncle and a niece. The common point of all these cases were that the
marriages in question were legal in the states
where they occurred, but were denied recognition in other states on grounds of their own public policies forbidding such marriages. These
citations were seized upon by one gay blogger
in particular as somehow equating same-sex
marriages, for purposes of the Constitution,
with incest and pedophilia — an assertion repeated and amplified through the blogosphere
until people were hysterically arguing that
Obama considered gay relationship to be on a
par with child rape. People not familiar with the
methodology of legal argumentation in general
and marriage recognition doctrine in particular
were clearly being misled by this criticism. Indeed, the DOJ brief’s defense of Section 2
seemed, on its face, to be reasonably credible,
although many — including this writer — have
maintained that Section 2 was largely irrelevant
Summer 2009
to the actual issue of marriage recognition because the FFCC has rarely if ever been invoked
as the basis on which state courts decide
whether to recognize marriages from other
states, such decisions resting instead on principles of comity and public policy. The Supreme
Court itself has never squarely held that one
state must recognize a marriage contracted in
another state because of the inexorable command of the FFCC.
On the other hand, the DOJ brief made arguments that deserved the serious criticism
aimed at it. Contending that DOMA did not discriminate, but was merely an attempt by Congress to be “neutral” with respect to a subject of
controversy and differences among the states,
was bizarre. Mr. Obama ran for office on a platform that condemned DOMA as discriminatory,
and he has continued to characterize it as such
in presidential statements, including statements made after the filing of the DOJ brief, so
it seemed perverse for his Administration to file
a brief arguing that it was not. But more objectionable were the arguments that the ability of
gay people to marry persons of the opposite sex
obviated any discrimination argument, and that
Congress could legitimately seek to protect
people who objected to same-sex marriage from
having their taxes fund benefits for same-sex
couples. This conveniently overlooked that gay
people pay taxes to fund benefits that are routinely denied to us under DOMA, and so the argument seemed gratuitously insulting to gay
taxpayers, their families and friends. The brief
also asserts the arguable point that anti-gay discrimination is to evaluated under the rational
basis test; while this is in accord with 9th Circuit precedents, the cases rest on a shaky foundation of pre-Romer v. Evans and Lawrence v.
Texas decisions, as some, including at least one
9th Circuit judge in a partial dissent in the Witt
case, contend open the door to a higher level of
scrutiny for anti-gay federal policies.
The consternation about the brief, which
quickly spread from the blogosphere to the
mainstream media, led the White House to hurriedly schedule a ceremony on June 17 at
which the President signed a Memorandum
that extended a handful of benefits to same-sex
partners of federal employees (see below) — a
historic first, actually, which under other circumstances might have garnered great enthusiasm in the gay community, but in the context of
the controversy over the DOMA brief and the
failure of the Administration to take any visible
steps towards fulfilling its promises to repeal
DOMA, pass the Employment NonDiscrimination Act, end the military “don’t ask,
don’t tell” policy, or to address the continuing
HIV immigration ban and the lack of recognition for same-sex couples under immigration
law, was seen as, in the words of some, “table
scraps.” (While some of these issues were in
the process of being addressed internally, those
125
efforts had not been disclosed publicly as of
June 17, thus fueling the criticisms.)
An effort got under way by some gay rights
advocates to persuade major gay political donors to boycott a scheduled fund-raising event
for the Democratic National Committee at
which Vice President Joe Biden was to speak,
and to pressure the Administration to start exerting some muscle towards moving the LGBT
rights agenda that had been spelled out on the
White House website on Inauguration Day. The
first pay-off from this pressure was an invitation
by the DOJ to LGBT litigation groups to meet
with DOJ officials to discuss the other pending
DOMA suit prior to DOJ filing its responsive
papers in that case. At the DNC fundraiser,
which DNC claimed had raised more money
than one held a year earlier despite the boycott
by several highly visible gay donors and politicos, Vice President Biden acknowledged the
controversy and reiterated the Administration’s
commitment to keep its promises, asking only
for patience in the implementation. A.S.L.
Obama Administration Begins to Address Gay
Rights Issues Achievable Through Non-Legislative
Means
In the wake of controversy about the DOJ brief
defending the indefensible “Defense of Marriage Act” (DOMA), the Obama Administration
began to announce various changes in federal
policy on issues that it believed did not require
legislative change as part of the Administration’s effort to extend equal rights to LGBT people.
The first of these came as DOJ informed Gay
& Lesbian Advocates & Defenders (GLAD),
counsel for the plaintiffs in Gill v. Office of Personnel Management, Case No. 1:09–cv,10309
(JLT) (D.Mass.), that the State Department has
changed its policy on passports and will now
entertain applications to change a surname on a
passport where the name change results from a
lawful same-sex marriage. One of the plaintiffs
in the lawsuit, Keith Toney, alleged that the
State Department refused to issue a new passport using the surname he had adopted as a result of his marriage, in order that he, his spouse,
and their children would all have the same surname and be more easily accepted as a family
while traveling abroad. The State Department
under the Bush Administration had taken the
position that issuing the new passport pursuant
to such a request would be an illegal recognition of a same-sex marriage in violation of the
Defense of Marriage Act (DOMA).
On June 15, the Justice Department sent
GLAD a letter indicating that the State Department had amended the provision in its Foreign
Affairs Manual governing this issue, and that
the amendment, effective immediately, provides that “a name change will be recognized
for pruposes of issuing a passport if the name
126
change occurs by operation of state law.” Thus,
somebody who has their surname legally
changed coincident to a same-sex marriage legally recognized by the state can seek to have
his or her passport reissued showing their new
surname. The letter, over the signature of W.
Scott Simpson, the Senior Trial Counsel in the
Civil Division who is also listed as counsel in
the California DOMA case discussed above, indicating that Keith Toney was invited to resubmit his application, and that the fee would be
waived (since he paid the fee the first time and
it was not refunded when his request was denied). The letter suggests that this policy
change renders moot the claims of Toney and
his husband, and that they should be dropped
as plaintiffs when/if GLAD files an amended
complaint. GLAD distributed the letter on its
website, and it was described in a June 18 article in the Boston Globe.
Next was the June 17 ceremony, at which
President Obama signed a memorandum, titled
“Federal Benefits and Non-Discrimination,”
by which the President made the following “requests”: That the Secretary of State and Director of the Office of Personnel Management, in
consultation with the Justice Department, “extend the benefits they have respectively identified to qualified same-sex domestic partners of
Federal employees where doing so can be
achieved and is consistent with Federal law.” In
addition, the President “requested” that all
heads of executive branch agencies conduct a
“review” of benefits afforded by their agencies
to determine which could be extended administratively, in order to channel a recommendation
through OPM to the President on further action.
The President also directed OPM to “issue
guidance within 90 days to all executive departments and agencies regarding compliance
with, and implementation of, the civil service
laws, rules, and regulations, including 5 USC
2302(b)(10), which make it unlawful to discriminate against Federal employees or applicants for Federal employment on the basis of
factors not related to job performance.” This
provision, adopted in the 1970s, has generally
been interpreted as a civil service ban on sexual orientation discrimination, although that
interpretation was questioned by OPM during
the Bush Administration to an extent raising
questions about the scope of the statutory policy. The memorandum disclaims creating any
legal rights. After all, it is not an Executive Order and was phrased, for the most part, in terms
of “requests” by the President rather than orders or directions. However, OPM was authorized to have the memorandum published in the
Federal Registar as an official document.
The President also used the occasion of the
signing ceremony to announced his support for
H.R. 2517, a bill introduced by Tammy Baldwin with extensive co-sponsors, titled “Domestic Partnership Benefits and Obligations Act of
Summer 2009
2009,” which is intended to create eligibility of
employee benefits for domestic partners of federal employees. The bill is intended only to provide benefits for same-sex partners. There is
some argument about whether existing law forbids extension of such benefits. The Administration has cited DOMA for this point, but the
citation is probably mistaken, as DOMA only
has to do with recognizing a same-sex relationship as a marriage or similar status; the real
barrier is the federal statute setting forth eligibility criteria for federal employee benefits, and
of course if H.R. 2517 were enacted, it would
be construed as an addition to that statute (for
certainly it would be placed in U.S.C. in proximity to the existing benefits statue) and any
questions that might be raised under DOMA
would disappear. DOMA is merely a statute, not
a constitutional provision, and Congress is free
to create exceptions, amendments, or to ignore
it entirely in adopting new statutes.
A few days later, word came that the White
House had asked the Census Bureau to determine what changes would have to be made in
forms and procedures to include data on samesex marriages in the 2010 Census, which is to
be carried out next spring. The Bush Administration had taken the position that because of
DOMA, the Census Bureau was forbidden from
recognizing same-sex marriages. Thus, if a
same-sex couple was validly married under
state law and reported that status on their 2010
Census form, the software used by the Bureau
to harvest data from the census forms, which
was in use for the 2000 census when same-sex
marriage was not available anywhere, would
automatically reject the description of a samesex couple as married and count them as an
“unmarried couple,” and all reports from the
Bureau would exclude same-sex couples from
any marriage datae. The Obama Administration, responding to intense criticism from
scholars, advocates, and some members of
Congress, indicated that it was abandoning the
Bush Administration’s position, and would take
the position that DOMA does not prevent the
Census Bureau from accurately tabulating and
reporting the information that American residents provide through their Census forms about
their marital status.
However, as USA Today reported on July 6,
this poses new logistical problems for the Census Bureau, given the short lead time until administration of the Census next spring. A
change will have to be made to the software
used to harvest the data, and decisions about
how to record same-sex marriages and whether
to cumulate them with opposite sex marriages
must be made. Because DOMA prohibits the
federal government from recognizing same-sex
marriages for purposes of federal rights and
benefits, and Census data on marriage, marital
households, and so forth provide a basis for directing and allocating federal funds, thought
Lesbian/Gay Law Notes
will be needed on how to cumulate and present
the data so that it will remain useful for federal
benefits purposes while presenting an accurate
picture of marriages legal under state law. At
present, Census data is not cross-checked
against other databases to determine whether
different-sex couples who report themselves as
married are actually legally married, and it is
likely that as a result Census data overstates the
number of traditional marriages. Similarly, it is
possible that same-sex couples who considered
themselves married as a result of commitment
ceremonies or partnership agreements but who
are not legally married will designate themselves as married on Census forms, introducing
yet another variable that undermines the Census count as a source of hard data on legal marriages in the U.S. So what else is new? Census
data has always been a bit dubious on many of
the details because of self-reporting, language
difficulties, missing transients, and other problems.
The following week, another shoe dropped
when the Administration announced that the
updated OPM manual for federal workplace
practices would add “gender identity” to the
list of forbidden grounds for discrimination, in
addition to “sexual orientation.” There is
mounting case law recognizing that gender
identity discrimination is a form of sex discrimination prohibited by Title VII of the Civil
Rights Act of 1964, and LGBT rights advocates
have been contending that federal personnel
policy should be adjusted in line with this. (A
recent decision by a federal court finding that
the Library of Congress had unlawfully discriminated against a transsexual job applicant
would not be affected by this, since the Library
of Congress comes under the jurisdiction of
Congress, not the Executive Branch.)
On June 30, the Armed Forces Information
Service issued a press release announcing that
Defense Secretary Robert M. Gates had asked
Pentagon lawyers to figure out ways to make enforcement of the “don’t ask, don’t tell” policy
more “flexible” pending legislative action on
its repeal. Gates reportedly spoke with President Obama about ways to ease up on enforcement. Gates said he had looked into the existing
statute and regulations and found that there was
not much leeway for discretion, but that he
hoped his General Counsel could figure out
something.
On July 2, the Department of Health and Human Services Centers for Disease Control and
Prevention published in 74 Fed. Reg.
31797–31809 a proposal to remove HIV infection from the official list of communicable diseases of public health significance that is used
for immigration purposes, and to end the practice of mandatory HIV testing and disclosure to
federal immigration authorities for those seeking to immigrate or become citizens in the U.S.
Comments on the proposal were due to be sub-
Lesbian/Gay Law Notes
mitted to the CDC by August 17, 2009. They
can be sent by email to [email protected].
Some claimed credit for this burst of activity
deriving from the intensive criticism the Administration incurred for the DOJ’s brief in the
Smelt case. It is just as likely, however, that the
timing of these announcements was adventitious. After all, although the President was
sworn into office in January, the Senate took
several months to confirm cabinet appointments, and even longer to begin confirming
subcabinet appointments, so it was not until the
past few months that the Obama team was in
place in the relevant agencies to begin generating the paperwork necessary to make these policy changes. (Indeed, there are still subcabinet
nominees who have not been confirmed by the
Senate, more than five months after the inauguration.) These policy changes required direction from newly-incoming officials, research,
internal recommendations, and then in some
cases complying with established procedures
for making policy changes that take time. As it
is, this burst of policy announcements in June
might also be seen as time to coincide with Gay
Pride Month, as a means of providing some
backing to the Gay Pride Proclamation issued
by the President on June 1.
But what gay political and legal pundits were
still looking for was Executive Leadership on
the central agenda items not yet address: repeal
of DOMA, enactment of Hate Crimes protection, ENDA, repeal of DADT, and passage of
the Uniting American Families Act. All of these
require Congressional action, which it is widely
believed will not happen unless there are strong
signals from the White House seeking movement on these items and public advocacy by the
President. A.S.L.
Employment Non-Discrimination Act Reintroduced
in Congress
The Employment Non-Discrimination Act
(ENDA), a legislative proposal that has been
introduced in each session of Congress since
the early 1990s, as a successor to a more wideranging “gay rightsá bill that was introduced in
every previous session of Congress since the
early 1970s, has been introduced yet again.
Lead sponsor Rep. Barney Frank (D-Mass.)
filed the bill on June 19, when it was numbered
H.R. 2981; he later refiled it to reflect more
than 100 co-sponsors.
This version of ENDA would add to federal
employment statutes an express ban on disparate treatment based on sexual orientation or
gender identity. The requirements of the statute
would extend to all employers subject to Title
VII of the Civil Rights Act of 1964, as amended,
as well as other federal statutes affecting the civilian federal workforce and employees of the
legislative branch. A prior version of the bill
Summer 2009
was passed by a vote of 235–184 by the House
of Representatives in 2007, but that version did
not extend to gender identity, just sexual orientation.
The concept for ENDA emerged during the
heated controversy surrounding the debate
over military service by LGBT people. During
that debate, some prominent supporters of banning gay military service claimed that they
thought that civilian employers should not be
able to discriminate, but that the military environment was different. Seeking to capitalize on
such professed support for gay rights in the
workplace from some unlikely sources, Rep.
Frank suggested cutting down the wide-ranging
gay rights bills that had been previously introduced, and instead to focus on getting a ban on
workplace discrimination enacted of a rather
minimalist sort, as a first step. It was minimalist
in the sense that it contained disclaimers
against authorizing affirmative action or quotas, eschewed disparate impact theories of liability, and also provided that it would not require the extension of employee benefits to
same-sex partners of employees. The proposal
also sheltered reasonable employer dresscodes, and disclaimed any intent to protect unlawful conduct by employees. The high point of
support for this measure in terms of Congressional voting during the 1990s came in October
1996, when it came to the floor of the Senate
without a committee recommendation as part of
a deal to bring forward the Defense of Marriage
Act without floor amendments. At that time,
ENDA fell one vote short of approval in the Senate, at a time when it was widely believed that it
could not achieve a majority in the House (both
chambers then being controlled by the Republican Party).
The new version of ENDA is different in one
respect: the expansion to gender identity. In
other respects, it is relatively unchanged from
prior versions. It incorporates by reference the
definition of marriage from the Defense of Marriage Act (DOMA), as part of assuring that this
statute would not provide a basis for gay employees to claim benefits for their same-sex
partners. It continues to eschew disparate impact theories, exempts religious employers, and
shelters dress codes. The addition of gender
identity led to an additional provision on
restroom use, assuring that employers can continue to maintain sex-segregated restrooms and
decide who can use which restroom, while providing that the law does not require employers
to construct any additional restroom facilities.
In other words, ENDA remains a minimalist
proposal, with the pragmatic goal of achieving
first enactment of a federal non-discrimination
law that could provide a basis for future expansion through amendments. There are hopes that
with the help of the Obama Administration, this
measure can be successfully enacted by current Democratic congressional majorities and
127
signed into law, possibly during the first year of
the administration. A.S.L.
Massachusetts Challenges Section 3 of the
Defense of Marriage Act
On July 7, Massachusetts Attorney General
Martha Coakley filed a lawsuit in U.S. District
Court in Boston, seeking a declaration that 1
USC sec. 7, which is Section 3 of the federal
Defense of Marriage Act, is “unconstitutional
as applied in Massachusetts.” Commonwealth
of Massachusetts v. U.S. Department of Health.
Thus Massachusetts, the first state to permit
same sex marriage, pursuant to an order from
the state’s Supreme Judicial Court in 2003 that
went into effect in May 2004, becomes the first
state to seek to vindicate the rights of the
same-sex couples who have married under its
auspices to equal treatment from the federal
government. It seemed likely that this case
would be consolidated with Gill v. Office of Personnel Management, Case No. 1:09–cv,10309
(JLT) (D.Mass.), a lawsuit filed earlier this year
by Gay & Lesbian Advocates & Defenders on
behalf of a diverse group of gay clients who
have been denied various rights and privileges
as a result of Section 3 of DOMA.
The Gill suit proceeds under the 5th Amendment, claiming a denial by the federal government of equal protection of the law to same-sex
couples who married in Massachusetts. The
Commonwealth suit proceeds under the 10th
Amendment and the Spending Clause, alleging
that Section 3 of DOMA violates basic principles of federalism by limiting the authority of
states to confer full rights of marriage on some
of their citizens and placing unconstitutional
conditions on the grant of federal funds. In effect, A.G. Coakley is arguing that DOMA Sec.
3, as applied to Massachusetts, is forcing the
state to treat same-sex marriages as unequal
and inferior to different-sex marriages, in violation of the sovereignty of the state and of the
state’s own obligation under the 14th Amendment to provide equal protection of the laws to
its citizens.
The addition of Commonwealth to Gill can
only be deemed a plus in seeking judicial invalidation of DOMA. Moreoever, it gives the lie
to some of the arguments that the Justice Department made in its motion and brief seeking
dismissal of the pending lawsuit in California,
Smelt, since it makes clear that in fact DOMA is
not a “neutral” statute on the issue of marriage,
but is instead a blatantly discriminatory statute
that seeks to enlist states in a federal program of
disparaging and disadvantaging the legal state
marriages of same-sex couples. We hope that
some effort will now be undertaken to enlist
other states that allow same-sex marriages:
Iowa, Connecticut, Vermont, New Hampshire,
and Maine, to join as co-plaintiffs or at least to
file amicus briefs in support of Massachusetts’
128
position in Commowealth, since those states,
where marriages became available more recently or will soon become available, will soon
experience the same problems that are recounted at length in Coakley’s complaint, as
they are forced by Sec. 3 to incur extra burden
and expense in order to provide state law benefits that are partially funded by the federal government to their legally married same-sex couples. Coakley specifically notes the Medicaid
program and veterans cemeteries as examples
where DOMA has interfered with the state’s
ability to provide equal treatment to same-sex
married couples, and a six-page table addendum to the complaint lists several hundred federal provisions that are affected. A.S.L.
Louisiana Appeals Court Rules for Gay Dad in
Custody Dispute
In Richard v. Richard, 2009 WL 1643316 (La.
App., 1 Cir., June 12, 2009), Judge John M.
Guidry of the Louisiana First Circuit Court of
Appeal affirmed the judgment of Lafourche
Parrish District Judge Jerome J. Barbera, III,
designating a gay father as domiciliary parent
over the objections of the child’s mother.
The parents had divorced following the
adoption of the child, the father had moved in
with his same-sex partner, and the mother had
remarried, but the father moved for a change of
custody when he suspected that the mother’s
new husband was physically and emotionally
abusing the child. A protective order and criminal charges had been filed against the stepfather alleging that he physically and emotionally abused his teenage son from a previous relationship.
The mother argued on appeal that the trial
court “was manifestly erroneous in disregarding the [father’s] open homosexual lifestyle
when considering what was in the best interest
of the minor child.” The trial court held that the
father’s sexual orientation wasn’t a relevant
consideration because the mother had failed to
bring any evidence showing that “the mere fact
that [the father] is a homosexual and lives in a
relationship with another man would be detrimental” to the best interest of the child. The
trial court held that “the burden is on her to
prove that, and there’s certainly no evidence
presented to suggest that.”
Louisiana case law establishes a four-part
test for “assessing what consideration should
be given a parent’s sexual lifestyle.” Scott v.
Scott, 665 So.2d 760, 766 (La.App. 1st Cir.
1995). The factors include: “(1) whether the
children were aware of the illicit relationship,
(2) whether sex play occurred in their presence,
(3) whether the furtive conduct was notorious
and brought embarrassment to the children,
and (4) what effect the conduct had on the family home life.”
Summer 2009
The appellate court held that these factors
militated in the gay father’s favor. Notwithstanding the fact that the child, now 6 years old,
was aware that his father lived with another
man, there was no evidence that the child “sufficiently appreciate[d] the significance of [his
father’s] relationship to be embarrassed by it,”
nor was there evidence that the father and his
partner had “engage[d] in sex play’ in [the
child’s] presence.” The appellate court further
held that “the evidence in this case clearly preponderates to a showing that despite [the father’s] alternative lifestyle, [the child] appears
to be more comfortable and happy with his father and his partner than with his mom and her
husband. Whether personal feelings and moral
judgments would incline individuals to consider otherwise, absent evidence to the contrary, we must conclude that the trial court did
not abuse its discretion in refusing to find that
[the father] should not be designated domiciliary parent solely on the basis of his homosexuality.”
Baton Rouge attorney Lisa Leslie Boudreaux
represented the father on the appeal, while New
Orleans attorneys Peter B. Sloss and Emily Stevens Hardin represented the mother. Daniel
Redman
Louisiana Appeals Court Rejects Co-Parent
Custody Suit
A unanimous three-judge panel of the Court of
Appeal of Louisiana, 3rd Circuit, has affirmed a
ruling by Calcasieu Parish District Judge Guy
Ernest Bradberry rejecting a lesbian coparent’s custody petition in Black v. Sims, 2009
WL 1607918 (June 10, 2009). Surprisingly,
the court’s opinion makes nothing of the fact
that the child at issue is a half-sibling of the
plaintiff-appellant’s own biological child.
Plaintiff Black and defendant Simms lived
together as a same-sex couple in Shreveport.
They decided to have children. Each woman
became pregnant with sperm from a common
sperm donor, and each gave birth to a child,
Black to E and Simms to B. They were raising
the children together, but after a few years the
relationship broke down and Simms moved out
with B, going to live with her brother in Texas.
That didn’t work out, however, so she moved
back in with Black and Black’s parents, living
upstairs at the Black home until she left again a
few years later, because involved with another
woman and moved in with her. Visitation arrangements eventually broke down, and Simms
refused to allow Black further contact with B.
Black and her parents had become attached to
B, and suit was filed seeking custody or jointcustody with reasonable visitation.
The trial court held that under Louisiana law,
in order for somebody who was not a child’s legal parent to seek custody over the objection of
a biological parent, she would have to show that
Lesbian/Gay Law Notes
the biological parent’s continued custody of the
child would cause substantial harm to the
child. Black introduced evidence of the bonding between herself and her parents and the
child, but the court determined that the upset
incident to severing these bonds was not the
kind of substantial harm contemplated by the
statute, and the appeal court agreed.
Writing for the panel, Judge Billy Howard
Ezell explained, “Over the years, there has
been litigation between psychological parents’
and parents regarding custody and visitation of
children. Most often the cases involved grandparents of children seeking custody or visitation with the children with whom they bonded.
The Louisiana Legislature has addressed some
of these concerns providing for visitation rights
under certain circumstances. See La. Civ. Code
art. 136 and La. R.S. 9:344. Recognizing the
paramount right of a parent in the care, custody,
and control of his or her child, the legislature
has provided that an award of custody to a nonparent as opposed to a parent can only occur in
rare circumstances. For these reasons, we find
that before a court can award joint custody to a
parent and a non-parent, Article 133 first requires a finding that an award of sole custody to
the parent would cause substantial harm to the
child. It is only after this finding that the best
interest of the child comes into play.”
After reviewing the evidence, the court concluded that Black had failed to meet the “substantial harm” standard. “While Ms. Simms’
actions have deprived B of the love the Blacks
have for her, we cannot say that this amounts to
substantial harm to the child. Plain and simple,
Ms. Simms is the mother of B and has the right
to direct how B is raised. While we may find
that her actions are harsh and inconsiderate of
B’s and the Blacks’ obvious affection and attachment to each other, we cannot say that this
amounts to substantial harm in which the courts
should interfere with Ms. Simms’ fundamental
right to custody, care, and control of B.”
In a concurring opinion, Judge Sylvia R.
Cooks wrote, “Even if we look beyond the substantial harm to the child issue, in this case, at
this time, the record indicates Ms. Black’s acrimonious relationship with the mother suggests
the child’s best interest would not be served by
an award of custody.”. A.S.L.
Missouri Appeals Court Rejects Co-Parent’s
Standing to Petition for Shared Custody and Child
Support
Each woman in a lesbian couple had one child
using the sperm of the same donor, meaning
that their offspring are technically halfsiblings. The women raised the children together, but when the couple broke up, one
woman wanted to take the child she bore and
have nothing to do with her former partner and
that partner’s child by birth. The spurned part-
Lesbian/Gay Law Notes
ner sued for joint custody and support of both
children. A Missouri appellate court dismissed
the suit, although one judge found that the
spurned partner had stated a cause of action in
equity for child support. White v. White, 2009
WL 1929254 (Mo. App. W.D. June 23, 2009).
Susan Sommer of Lambda Legal Defense and
Education represented the plaintiff, and is appealing the court’s decision.
Leslea and Michelle White became a couple
in 1997, and broke up in 2005. Michelle was
the birth mother of CEW in 2001, and Leslea
bore ZAW in 2004. In mid–2006, Michelle cut
off all relations with Leslea, and prohibited
Leslea or ZAW from seeing CEW. Leslea asked
the family court for joint custody and support.
Michelle moved to dismiss the suit for lack of
standing, because no statute provided for a declaration of maternity of a non-biologically related female parent. Michelle argued that the
only basis for standing is Missouri’s version of
the Uniform Parentage Act, which does not provide for de facto parentage. Leslea claimed
standing as an “interested party” under the
Act, and under the common law. Family court
dismissed Leslea’s suit without indicating its
reasoning, and Leslea appealed.
The main issue is standing: Does a nonbiological parent have standing under Missouri’s version of the Uniform Parentage Act,
under the common law, or in equity?
Leslea’s contention that the paternity section
of the Uniform Parentage Act, Mo. Stat. Sec.
210.826(2), should be read in a gender-neutral
way was not accepted by the court. The Act provides that an action for paternity may be
brought by the mother; it does not provide for an
action for maternity, thus, no one is authorized
under that section to sue to declare a motherchild relationship, held the court.
Leslea also based her action on Mo. Stat. Sec.
210.848, which provides that any interested
party may sue to determine the existence or
nonexistence of a mother and child relationship. Leslea contended that she was an “interested party” under that section, citing a Rhode
Island holding under its version of the Uniform
Act. The Missouri court noted, however, that
Rhode Island had adopted different provisions
of the Act from those adopted by Missouri, and
that Rhode Island’s statutory scheme was sui
generis and not relevant to Missouri. In Missouri, an “interested party” need not be biologically related to the child; however, the party
must be seeking to establish the child’s biologicalrelationship to the mother. The ultimate outcome sought must be a declaration of a biological mother-child relationship. Since that is not
what Leslea seeks, she cannot have standing as
an interested party under Mo. Stat. Sec.
210.848, stated the court.
Leslea next claimed that the Uniform Act was
not the exclusive method of determining parentage, and the Missouri court agreed, citing
Summer 2009
rulings by the Missouri Supreme Court. Thus,
common law and equitable claims of parentage
may be heard, but Leslea’s contention that the
family court had neglected its equitable duty to
“safeguard the best interests of children raised
in diverse family structures” was dismissed on
technical grounds: her argument failed to comply with Missouri’s rules of appellate pleading
by not identifying the legal reasons supporting
the claim of reversible error.
Leslea then claimed standing as a de facto
parent, or as a person in loco parentis. Leslea
presented an extensive and inclusive Wisconsin court definition of a de facto parent, but
could not present any Missouri case that had
adopted such a definition. Thus, the Missouri
panel determined that such a concept did not
exist in Missouri. In addition, the concept of “in
loco parentis,” which had existed in Missouri
as a means of compelling stepparents to provide
support for children who were not biologically
their own, was displaced by a statute providing
that the obligation of support exists only “so
long as the stepchild is living in the same home
as the stepparent.” Mo. Stat. § 453.400(1). No
such obligation exists when a couple is separated, said the court.
Leslea next brought up a claim based on equitable estoppel — that Michelle cannot, because of her past actions affirming Leslea’s
shared motherhood, refute the mother and
child relationship between Leslea and CEW
(Michelle’s birth child). The court could find
no basis in Missouri law to support Leslea’s position, and denied Leslea’s claim. However, one
of the judges, Alok Ahuja, in an opinion concurring in part and dissenting in part, would
have granted standing on this basis. Judge
Ahuja noted that the court based its ruling in
part on equitable estoppel being “defensive in
nature,” and thus not available to a plaintiff
The judge said that thisis a “fine distinction,”
and found that Leslea had presented an adequate case for such estoppel, i.e., she alleged
“(1) a promise; (2) on which a party relie[d] to
his or her detriment; (3) in a way the promissor
expected or should have expected; and (4) resulting in an injustice that only enforcement of
the promise could cure.” “[T]he critical aspect
of Leslea’s estoppel claim here is the contention … that she voluntarily and intentionally
became pregnant, carried ZAW to term, and retained custody over him, in reliance on Michelle’s undertakings.” An estoppel claim based on
this claim is consistent with Missouri law,
stated Judge Ahuja.
Leslea then asserted that, under the common
law, exceptional circumstances may warrant a
grant of custody or visitation to a third party if it
is in the best interest of the child, even if a fit
and competent biological parent objects. However, every prior case in Missouri finding exceptional circumstances had involved the intervention by third parties in pending litigation,
129
or third parties being named as parties in the
initial custody case. The court determined that
standing for exceptional circumstances was
thus limited, and the court was not willing to expand the availability of standing beyond those
procedural postures.
Leslea’s next allegation was that Michelle
and she had made a contract for mutual support
of the children born during their relationship.
However, no count of Leslea’s petition sought
relief for breach of contract, ruled the court, and
the issue was not preserved for appeal. Even if
the court “cobbles together” pieces of the claim
to make out a contract, the complaint lacks allegations of a breach of contract, and fails to state
the length of time that the obligation of support
should last under the contract.
Finally, the court ruled against Leslea on the
constitutional issues of due process, equal protection, and the Missouri Constitution’s open
courts guarantee.
The court made no mention of something that
is often relevant in child custody and support
cases: that the two children of this relationship
are half-siblings. Alan J. Jacobs
Two Gay African Felons Denied Relief by Third
Circuit Under Convention Against Torture
Two gay men from Africa who engaged in criminal activity in the United States and thus were
found statutorily ineligible for asylum or withholding of removal were also denied relief under the Convention Against Torture (CAT) by
different panels of the U.S. Court of Appeals for
the Third Circuit. In each case, the court found
that the petitioner had failed to show that he
would be likely to be subjected to governmentimposed or abetted torture in his home country
if deported. Mark v. Attorney General, 2009 WL
1497248 (3rd Cir., May 29, 2009) (not officially published); Awuku v. Attorney General,
2009 WL 1741500 (3rd Cir., June 22, 2009)
(not officially published). Both opinions were
per curiam.
In the earlier of the two cases, Mr. Mark, a native and citizen of Liberia, entered the U.S. on a
visitor’s visa in 1988 and had “temporary protected status” until 2000. His conviction on
drug-dealing and possession charges led to felony convictions and a cumulative sentence of
57 months, and Homeland Security sought his
deportation. Under the law, a felon sentenced to
60 months or more must be deported. Mark argued that the Attorney General should exercise
discretion to grant withholding of departure,
which is possible under the statute for felons
sentenced to fewer than 60 months, or should
grant relief against deportation under the Convention Against Torture (CAT).
As summarized by the court, “He testified
that, before he left Liberia at age twenty, fellow
students taunted, beat, and on one occasion
stabbed him because of his homosexuality. He
130
testified that he was never arrested because of
his homosexuality, and that police instead
sometimes helped him and made sure he got
home safely. He also fears that he will not be
able to obtain HIV medication in Liberia.” The
Immigration Judge (IJ) found him ineligible for
withholding of removal or CAT relief, and he
appealed to the Board of Immigration Appeals,
which adopted the IJ’s reasoning and denied
relief.
The 3rd Circuit panel noted that it was up to
the Attorney General, not the court, to exercise
discretion on whether to consider a particular
applicant’s felony record as not serious enough
to require deportation when his cumulative
sentence fell below 60 months. As to the CAT
claim, the IJ had mentioned that there was
some evidence in the record that “homosexuality is illegal in Liberia,” but that Mark had not
presented any evidence “that he would be arrested or subjected to mistreatment, whether
rising to the level of torture or otherwise, if returned to Liberia.” When questioned at the
hearing, Mark, who represented himself pro se,
testified: “I didn’t know what will happen,
Judge, when you send me back home. I don’t
know. I don’t have no clue what will happen to
me when I, send me back home. And I’m
scared.”
The court stated that the burden is on the applicant to prove eligibility for relief under the
CAT, and that although the IJ is responsible for
seeing that a hearing record is made on the necessary facts, the burden of proof nonetheless remains with the petitioner. In this case, the IJ
considered the State Department country report on Liberia as well as a newspaper article
indicating that the country was cooperating
with the UN on a program to provide access to
HIV medication. Neither of these sources supported a contention that Mark would more
likely than not face torture in Liberia, and he
presented no specific evidence that this was
likely, merely stating his fears. Thus, the 3rd
Circuit rejected his appeal.
In the second case, Mr. Awuku, a native and
citizen of Ghana, had entered the U.S. in 1993
and received lawful permanent resident status,
but over the following years accumulated several firearm and drug convictions, and Homeland Security initiated removal proceedings.
Based on his criminal record, he was statutorily
ineligible for asylum or withholding of removal,
so his only hope to remain in the U.S. was relief
under the CAT. In this case, it appears that
there was plenty of evidence in the hearing record that conditions for gay people in Ghana are
horrific, but the IJ, the BIA and the court all
agreed that this was not enough.
Reading the court’s summation of the evidence leads one to conclude that empathy is not
a characteristic of decisionmakers in the judicial system when dealing with alien felons, especially those convicted of firearms and drug
Summer 2009
offenses. The BIA stated, with the approval of
the court apparently, that for purposes of the
CAT, “torture is an extreme form of cruel and
inhuman treatment, that does not include rough
and deplorable treatment, such as police brutality.’”
Consider this quotation from the opinon:
“And while the IJ did note that homosexual
Ghanaians face criminal penalties and sometimes abuse rising to the level of torture, he also
found that Awuku had failed to show that he
would be identified as a bisexual or homosexual
if he were returned to Ghana’ or that he would in
fact engage in homosexual activity in Ghana.’
But, the IJ found, even if one or both of those
situations were extant post-removal, the evidence did not support the conclusion that it is
more likely than not that [Awuku] would be
subject to torture...”
Well, what is the evidence recited by the
court about conditions for gay people in
Ghana? How about the State Department country report? The court quotes this: “Human
rights problems in Ghana include deaths resulting from the excessive use of force by police; vigilante justice; harsh and lifethreatening prison conditions; police corruption and impunity ... societal discrimination
against women, persons with disabilities, and
homosexuals… The law criminalizes homosexuality, and lesbians and gays face widespread discrimination, as well as police harassment and extortion attempts. There is a
minimum misdemeanor charge for homosexual
activity, and homosexual men in prison often
were subjected to sexual and other physical
abuse.”
The court also noted a 2008 N.Y. Times article documenting that “anti-gay hysteria has
been sweeping across swaths of Africa, fueled
by sensationalist media reports” and specifically naming Ghana as one of the countries affected. The court also noted a United Nations
report that “is replete with examples of Ghanians, and in one case an Austrian national, who
were either criminally prosecuted for engaging
in homosexual conduct, or who were physically
assaulted by non-governmental actors because
of their sexual orientation.”
But evidently this court is affected by the
rather narrow and peculiar definition of torture
that was embraced by the Bush Administration
during the past decade, concluding: “This evidence, while unsettling, is ultimately insufficient under the CAT and this Court’s case law.
The record at best establishes the possibility
that Awuku will suffer societal discrimination
and abuse, criminal penalties, maltreatment in
prison, and harassment and extortion from government officials, should he be identified as a
homosexual. The record, however, fails to demonstrate that it is more likely than not’ that
Awuku will be tortured because of his sexual
orientation or, more importantly, that any tortur-
Lesbian/Gay Law Notes
ous acts will be inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person acting in an official
capacity.”
And so Awuku, who actually was deported in
March 2009 because the court had denied his
motion for a stay while his case was pending,
was denied relief under the CAT in this decision. As in the case of Mark, Awuku was representing himself pro se. A.S.L.
West Virginia High Court Rejects “Traditional
Family” Preference in Adoptions; Quashes
Removal of Foster Child From Lesbian Mothers
The West Virginia Supreme Court of Appeals,
that state’s highest court, has issued an order
blocking the removal of a young foster child
from the home of a lesbian couple, rejecting a
ruling by Fayette County Circuit Judge Paul M.
Blake, Jr, that state law favors “traditional families” and this child should be removed because
her foster mothers would not be allowed to
adopt her. State ex rel Kutil & Hess v. Blake,
2009 WL 1579493.
According to the high court, which issued its
per curiam ruling on June 5, West Virginia’s
adoption statute does not establish any preference for “traditional families” in the adoption
process, and the question whether same-sex
couples can adopt was not properly before the
circuit court.
The child, identified by her initials in the
opinion as B.G.C., was born on December 8,
2007, testing positive for cocaine and oxycodone at birth. Under West Virginia law, such
test results on a newborn mandate the filing of
an abuse and neglect petition against the birth
mother, and within days, Judge Blake had
granted the state’s Department of Health & Human Resources (DHHR) legal custody of the
child, and had appointed Thomas K. Fast, a
Fayetteville attorney, to be the child’s guardian
ad litem. The guardian ad litem, compensated
by the court, is supposed to represent the
child’s interest in legal proceedings.
Within a few weeks, DHHR had placed the
child in the home of Kathryn Kutil and Cheryl
Hess as foster parents. Kutil and Hess were apparently quite popular with the administrators
at DHHR, since they were providing a good
home for numerous foster children, usually the
statutory maximum of five at a time, and Kutil
had actually adopted a foster child with the approval of the other judge at the Fayetteville Circuit Court.
But this placement did not sit well with attorney Fast, who filed a motion with Judge Blake
“to Order DHHR to Remove Child from Physical Placement in Homosexual Home & Other
Injunctive Relief.” Fast, who evidently disapproves of gay people having custody of children, sought not only to remove the child but to
get a court order against DHHR ever placing
Lesbian/Gay Law Notes
children with gay foster parents. Judge Blake
rejected the request for immediate removal of
the child, since DHHR was supporting the
placement. The child remained with Kutil and
Hess, to the evident consternation of Fast.
Under West Virginia law, a birth mother can
reclaim custody of her child if she shows rehabilitation, but B.G.C.’s birth mother proved incapable of this, and her custody was permanently terminated in the fall of 2008, after
which DHHR convened a meeting with Fast
and various department officials to determine
the permanent disposition of B.G.C. The department concluded that the placement with
Kutil and Hess should continue, and noted that
Kutil had indicated an interest in adopting the
child, which the department viewed as a desirable disposition for B.G.C. Fast flew into action,
filing a motion with the court to remove B.G.C.
immediately and place her with a “traditional
family,” which he defined as a married heterosexual couple.
Complicating matters, DHHR placed an additional foster child with Kutil and Hess, which
triggered a new argument for Fast, as they now
had more foster children in their home than the
statutory maximum. Seizing upon this, Judge
Blake, ordered the child’s removal and immediate placement with a “traditional family.”
Judge Blake opined that it was “unfair” for the
child to be placed with a same-sex couple if a
“traditional family” placement was available,
expressing the view that under West Virginia
law “traditional families” are favored in the
adoption process, and that the law would not allow Kutil and Hess to adopt the child jointly.
Kutil and Hess promptly petitioned the Supreme Court for a writ of prohibition, that is a
direction to the trial judge prohibiting the action that the trial judge had ordered.
The trial judge stayed his order briefly, but
ultimately directed that the child be removed
and placed with the “traditional family” that
had been tentatively identified. B.G.C. ended
up living with a “prospective adoptive married
couple” briefly, but they informed DHHR that
they would not adopt the child. Then the Supreme Court issued an emergency stay pending
its ruling on the writ of prohibition, and DHHR
agents immediately retrieved the child and returned her to her foster mothers.
A few days later, however, Judge Blake again
ordered removal of the child. The Supreme
Court quotes large portions of Blake’s decision
in its opinion. Blake stated “that, if at all possible, it is in the best interest of children to be
raised by a traditionally defined family, that is,
a family consisting of both a mother and a father. The court concludes that non-traditional
families, such as the intervenors [Kutil and
Hess], should only be considered as appropriate permanent/adoptive placements if the
DHHR first makes a sufficient effort to place
the child in a traditional home and those efforts
Summer 2009
fail. In other words, if the DHHR has attempted
in good faith to secure a traditional family to
adopt the child and the DHHR’s attempts fail,
then a non-traditional family may be considered as an adoptive placement. This did not occur in the present case.”
Blake ordered that the child be removed
from the Kutil/Hess home and that the removal
“should be completed over a two week transitional period” in recognition of whatever bonds
had been formed between the child, now almost
a year old, and her mothers. DHHR had been
opposing removal, but suddenly switched its
position, probably at the instance of Fast, who
brought to their attention that the Kutil/Hess
home was already housing more foster children
than were authorized by the statute. DHHR
suddenly switched sides and supported Fast’s
position based on its own mistake in placing too
many children with Kutil and Hess.
Responding to testimony from the expert witnesses at the hearing, Blake conceded that “the
Kutil-Hess household may be the most appropriate adoptive placement for the child, but it is
unfair not to allow the child the option to be
adopted by a traditional family. The child
should be given the opportunity to be adopted
by mother-father adoption and not be locked
into a single parent adoption.” This last comment reflected Blake’s further findings that
“the intervenors can not adopt this child as a
couple because of statute. The intervenors argue that they are the only proper parties to be
considered for the adoption of the child; however, under West Virginia law, only married
couples, married persons with consent of their
spouses, or single persons may petition to adopt
a child. For this reason, the court concludes that
the intervenors cannot lawfully petition together to adopt B.G.C., only one of the two intervenors may petition for adoption.”
Before Blake’s written opinion could be issued, Kutil and Hess secured an emergency
stay from the Supreme Court, so the child has
remained with them.
In its opinion, the Supreme Court said that
the issue of adoption was not properly considered by Judge Blake when he was ruling on
Fast’s motion to remove the child from the
Kutil-Hess home. The issue was whether there
was any reason to terminate the foster placement at that time. “It was thus inappropriate for
the lower court to rule as a matter of law on the
subject of the propriety of joint adoption of a
child by a same-sex couple because it was not a
matter pending before the court.” The court
noted that Kutil was planning to petition to
adopt as a single person, which was clearly
within the statute.
The court criticized DHHR for changing its
position based on the “overcrowding” argument, pointing out that the agency had itself
created the situation by placing too many children with Kutil and Hess. Furthermore, the
131
court opined that in light of the bonding between the mothers and B.G.C., it seemed that
removing children more recently placed with
the couple who had not yet bonded with them
was the solution to this problem, not removal of
B.G.C. By the time the court issued this decision on June 5, B.G.C. had been living with Kutil and Hess for more than 17 months.
“No evidence was produced at the hearings
as to Petitioners providing anything but quality
care in their foster home,” wrote the court, “or
of any particular problems B.G.C. was experiencing in her foster home environment,” so the
trial court’s main concern in ruling on Fast’s
motion should have been “what effect the disruption of relocation would have on the emotional and physical well-being of the individual
children in the home. The length of time each of
the foster children was in the home no doubt
would affect the strength of the emotional bond
that had developed between each child and Petitioners as well as their sense of comfort and
security with their home environment. The only
home B.G.C. had ever known in the eleven
months of her life [at the time of the removal
hearing] had been Petitioners’ foster home.
Surely bonding had occurred between the infant and Petitioners to a much larger extent than
with children who had lived in the household
for a much shorter period of time.”
“The situation before us involves a removal
decision where the foster home environment or
care provided in a foster home is not in question, and removal of a child is necessary to correct problems created by a bureaucratic error.
When presented with such situations, courts
need to safeguard the best interests of the children,” wrote the court, but “No such examination or balancing occurred in the present case.”
The court also noted that since the hearing the
“overcrowding” problem had been resolved,
and so was no longer relevant. The court found
that Blake’s removal order “constituted clear
error.”
Having overruled Blake’s order, the court
was not going to leave standing his erroneous
characterization of West Virginia adoption law.
It pointed out that the statute expressed no preference as between the three classes of prospective adoptive parents it identifies: married couples, single people, or a married person with the
permission of his or her spouse. Blake, named
as respondent on the petition before the court,
had argued in his brief that “statutes indicate a
preference for adoption by married couples,”
but the court refuted this contention, finding
that “there simply is no legislative differentiation between categories of eligible candidates
for adoption.”
The court pointed out that Blake had been
presented by Frost with no reason to remove
B.G.C. from the Kutil-Hess home other than the
contention that a “traditional family” adoption
was the preferred permanent disposition for
132
this child. On the other hand, the court pointed
out, “there also was no indication that Petitioners provided B.G.C. with anything other than a
loving and nurturing home. Without any information that the foster care placement with Petitioners was not proceeding well, there was no
legal reason for the court to remove B.G.C. from
the only home she has known.” The court also
observed that West Virginia law actually encourages adoption of children by their foster
parents, and ruled that Kutil “should not be excluded from consideration for the reason stated
by the Respondent.”
Thus, the court concluded its opinion with
the suggestion that the court “facilitate” the
adoption process “in recognition and support of
the parenting investment which has been
made” by Kutil.
The case attracted substantial attention, with
numerous amicus briefs being filed with the
Supreme Court on both sides. Anthony Ciliberti, Jr., of Fayetteville represented the mothers.
Both Lambda Legal and the ACLU LGBT Project filed briefs on behalf of various professional associations concerned with child welfare, and of course the anti-gay Alliance
Defense Fund was on the scene to argue that
placing children with gay people is harmful.
The opinion takes on special significance because West Virginia’s highest court has not previously ruled on the issue of gay parenting, so
the strongly affirmative evaluation of the efforts
of Kutil and Hess as foster parents is most welcome. A.S.L.
Georgia Double-Header: Victory for Two Gay
Appellants in the Georgia Supreme Court
A gay dad and a lesbian high school teacher/
coach emerged victorious in the Georgia Supreme Court on June 15, 2009, winning reversals of adverse rulings by lower courts and establishing important new precedents in state
law.
In Mongerson v. Mongerson, 2009 WL
1649674, Eric Mongerson, a divorced father of
three, won a reversal of a trial judge’s order that
his children not be exposed to “his homosexual
partners and friends” when he had them for
visitation.
In Chase v. The State, 2009 WL 1649690,
Melissa Lee Chase won a reversal of her conviction on charges of “sexual assault of a person
enrolled in school,” which arose from one sexual encounter with a 16–year-old female student who was not in any classes taught by
Chase, 28, at the time of contact.
Mongerson was unanimous in result, although two judges specially concurred to explain their position. Chase drew a dissent from
two judges, claiming the court had misconstrued the relevant statute.
Eric and Sandy Mongerson married in 1986
and divorced in 2007, at which time they had
Summer 2009
three minor children. The final divorce judgment incorporated their negotiated settlement,
under which wife had custody and husband had
visitation rights, etc., etc. Under the court’s order, “the children were to have no contact with
their paternal grandparents, and Husband was
‘prohibited from exposing the children to his
homosexual partners and friends.’” On appeal,
Eric Mongerson claimed this was an abuse of
discretion by the trial judge.
The opinion for the court by Justice Robert
Benham found no abuse of discretion in the restriction about contact with Eric’s parents, because the trial record showed that exposure to
them would adversely affect the children.
“There was evidence the grandparents had
been physically and emotionally abusive of the
children, and Husband acknowledged he had
not fulfilled his promise to never leave his children alone with his parents.”
But the anti-gay other restriction was “another matter,” wrote Benham. “There is no evidence in the record before us that any member
of the excluded community has engaged in inappropriate conduct in the presence of the children or that the children would be adversely affected by exposure to any member of that
community. The prohibition against contact
with any gay or lesbian person acquainted with
Husband assumes, without evidentiary support, that the children will suffer harm from any
such contact. Such an arbitrary classification
based on sexual orientation flies in the face of
our public policy that encourages divorced parents to participate in the raising of their children and constitutes an abuse of discretion…
Accordingly, we vacate the blanket prohibition
against exposure of the children to Husband’s
gay and lesbian acquaintances.”
Justice Melton, joined by Justice Carley,
concurred specially to emphasize that the restriction was invalid because of lack of evidence of harm. “While Husband’s behaviors or
actions affecting his children’s well being could
support the trial court’s imposition of any
number of restrictions on Husband’s visitation
rights,” wrote Melton, “the trial court abused
its discretion by restricting Husband’s visitation rights based on his children’s potential exposure to Husband’s compatriots, independent
of whether or not Husband’s friends exhibited
any harmful behavior that could affect the children. Our case law is clear that such a visitation
restriction must fail.”
What is significant here, and contrary to earlier decisions in some other jurisdictions, was
that the court was not willing to entertain the
proposition that your children would inevitably
be harmed by exposure to a parent’s same-sex
partner or other gay friends. Some other courts
have embraced such a proposition on morality
grounds.
In Chase, Chief Justice Leah Ward Sears
wrote for the majority of the court. She noted
Lesbian/Gay Law Notes
that Melissa Lee Chase and Christy Elaine Garcia a developed a friendship after Garcia
ceased to be a student enrolled in Chase’s
class, the summer after Garcia’s sophomore
year in high school. “Between August and November 2006, Garcia and Chase developed a
friendship that eventually turned romantic and,
on one occasion, sexual.” After the sexual encounter, which Garcia sought to testify that she
had initiated, her mother “found notes in Garcia’s purse written to Garcia by Chase” and
contacted the police. Chase was charged with
sexual assault of a person enrolled in school. At
trial, the judge granted the state’s objection to
Garcia’s testimony that she initiated the consensual sexual contact. The judge embraced
the state’s argument that consent was not a defense, even though Garcia was over the age of
sexual consent.
The trial judge sentenced Chase to 15 years
for sexual assault, 10 in prison and 5 on probation, and the court of appeals affirmed. In reversing, the Supreme Court found that the lower
courts were misconstruing the statute. While
there was a provision ruling out consent as a defense to certain sexual assault charges involving students, the court found that this provision,
by its terms, did not apply to this case. Just
months before the incident in question, the legislature had enacted a new version of the relevant statute. It explicitly abolished any consent
defense in cases where the “student” was “in
the custody of the law” or “detained in or is a
patient in a hospital or other institution,” but,
said the court, did not explicitly abolish it for
other cases. The lower courts in this case accepted the prosecution’s argument that as a
matter of public policy the consent defense
should be ruled out in any case of a teacher and
a student enrolled at the school where the
teacher works, on a theory that the law is supposed to protect students from sexually predatory teachers.
But the majority of the court rejected the
view, finding that the legislature had not expressly limited the consent defense in ordinary
school cases, and that where the student is over
the age of consent and the evidence is that the
sex was consensual, it should not be prosecuted
as a crime. “The District Attorney’s passion for
protecting school-age children is admirable,”
wrote Chief Justice Sears. “However, to accept
these arguments would be to legislate by judicial fiat, and to do so ex post facto to boot.”
Sears contended that the prosecutor’s interpretation could lead to absurd results. “If consent is no defense to a charge of sexual assault
of a person enrolled in school, then the age of
the teacher and the student have no effect on
whether a crime has been committed,” she
wrote. “Consequently, a 30–year-old law
school professor who engaged in a fully consensual sexual encounter with a 50–year-old law
school student embarking on a second career
Lesbian/Gay Law Notes
would be guilty of a felony and subject to punishment of 10–30 years in prison. That result
— not the situation in this case — would be
truly absurd and unjust. But that is precisely
what the statute would mean were we to accept
the reading adopted by the trial court and the
Court of Appeals.”
The dissent, contending that the ruling “will
result in there being no viable prosecutions of
violations of [the statute] if the victim is 16
years of age or older,” argued that consent could
be ruled out as a matter of policy without the
need for an express provision and that where 16
year old students are concerned, the “danger of
sexual exploitation” means that “consent is not
a reasonable defense.… A statute enacted in
pertinent part to protect students from exploitation by teachers is now almost useless due to
the judicial imposition of a defense of consent,”
wrote Justice Carley, “even though consent in
these circumstances is commonly obtained by
the very exploitation which the statute was designed to prevent.” Rejecting Justice Sears’ example of the law profession and graduate student, Justice Carley wrote, “Even that age
difference does not eliminate a student’s vulnerability to exploitation by a person having supervisory or disciplinary authority over such
student.”
[Note: We’ve inferred from the court’s decision that the teacher is gay, but the opinion does
not explicitly say so, and neither do various online reports about the case that we read. They
say nothing one way or the other about her sexual orientation. What is clear is that she engaged in sexual contact with a sixteen year old
female student, which the student attempted to
testify that the student had initiated.] A.S.L.
Indiana Appeals Court Rules For Lesbian Mom on
Grandparent Visitation Claim
A unanimous three-judge panel of the Court of
Appeals of Indiana ruled on June 23 in Matter
of Visitation of C.LH., 2009 Westlaw 1765688,
that a trial judge, Hendricks Superior Court
Judge Karen M. Love, abused her discretion in
ordering that the homophobic grandparents of a
lesbian mother be given ten hours a month of
visitation with their young grandson. Judge Edward W. Najam, Jr., wrote the opinion for the
Court of Appeals. The opinion identifies all
parties by their initials.
B.L.H. gave birth as a single mother in October 2001. She had a difficult pregnancy and
was living with her parents at the time. She continued to live with them for several years, and
they played the primary caregiver role with her
son, C.L.H., until mid–2007, by which time she
had established her own household. Early in
2007, B.L.H. met K.W. and they began dating.
Soon K.W. had quit her job, moved in with
B.L.H., and taken over the primary caregiver
Summer 2009
role for the child. B.L.H.’s job required a fair
amount of travel.
B.L.H.’s parents were not happy about this
development. Her mother considers homosexuality to be a sin, and when she suffered a stroke
shortly after learning about K.W., B.L.H.’s father attributed the stroke to shock about her
daughter’s homosexuality and lesbian partner.
B.L.H. tried to maintain some sort of relationship with her parents and allow them to see the
child from time to time, but their active hostility
to K.W. and desire to exclude K.W. from contact
with them proved a problem.
Things came to a head around Christmas
time of 2007, when the grandparents thought
they had a commitment from B.L.H. to bring the
child to visit them and receive his Christmas
presents. When B.L.H. and the child did not
show up, the grandparents went to B.L.H.’s
house around 9 p.m. and demanded to see the
child, who had already been put to bed. When
B.L.H. refused to wake the child to see the
grandparents, grandfather became “very angry,” told B.L.H. she should never again set foot
on their property, and seemed to threaten her “if
anything were to ever happen” to the child.
After this, B.L.H. cut off contact with the
grandparents. After several months of no contact, they filed suit under the state’s Grandparent’s Visitation Act, seeking court-ordered visitation. They requested a visitation schedule
that would be more characteristic of a noncustodial parent than grandparents, including
several contacts and some sleepovers each
month, as well as several weeks in the summer.
B.L.H. formally opposed the lawsuit, but indicated that she might be amenable to working
out some kind of visitation scheme informally.
Judge Love appointed a Guardian Ad Litem,
who interviewed all parties and submitted a report to the court indicating that B.L.H. is a fit
parent, that K.W. was providing good care to the
child, who was well-adjusted and doing well in
school, and that the visitation schedule sought
by the grandparents was not “realistic.” The
Guardian Ad Litem concluded, “Mother is a fit
parent and appears to be making decisions
based on what she believes to be in [C.L.H.’s]
best interests. She has reasons for denying
Grandparents visitation with [C.L.H.] which
are valid given the interactions between the
family members over the last year or so.”
Nonetheless, Judge Love determined to
award substantial visitation time to the Grandparents, premised largely on their significant
role as primary caregivers during the child’s
preschool years, and the likelihood that they
would provide the only link for the child with
their extended family, since B.L.H. had cut off
contact with her sister and other relatives.
Judge Love had noted that the child had become best friends with a cousin who was around
his age, but that this contact had also ceased.
133
Judge Love found that it would be in the best
interests of the child to maintain contact with
the grandparents, order ten hours of visitation a
month, while opining, “What would be ideal for
[C.L.H.] would be for Grandparents to find a
way to accept Mother’s homosexuality, to welcome [K.W.] as part of Mother and [C.L.H.’s]
family and to understand that, while they filled
an extremely important role in [C.L.H.’s] life
from birth through pre-school, they are not his
parents and do not have the status of parents
nor the right to make demands upon Mother.
Further, it would be ideal for [C.L.H.] if Mother
could find a way to forgive her parents for their
negative response to her homosexuality and her
choice of partner, to see from their perspective
their understandable hurt after being pushed
out of [C.L.H.’s] life and Mother’s life, and to
find a way to give [C.L.H.] the gift of not only a
loving immediate family, but also a loving extended family.”
Judge Najam found the most significant flaw
in Judge Love’s ruling was the failure to give
appropriate weight to B.L.H.’s constitutional
rights as a parent. If a legal parent is fit, then
there is a strong presumption, enforced by substantial federal due process rulings, that her
decisions about the raising of her child, including with whom the child associates, are binding
and take priority over the desires of third parties. He noted that in prior rulings, the court
had observed that the Grandparent’s Visitation
Act contemplated “occasional, temporary visitation as found to be in the best interest of the
child,” and that “the Grandparent’s Visitation
Act carves out a narrow statutory exception to
the otherwise sacrosanct parental authority in a
child’s upbringing.”
Yet Judge Love’s award of ten hours visitation per month, in the face of discord between
the mother and the grandparents that was
largely instigated by the grandparents, failed to
comport with this narrow approach. “The ultimate question is whether visitation in the face
of family discord is in the child’s best interest,”
wrote Judge Najam. “Here, the trial court’s
visitation order is not supported by its findings
or the undisputed evidence. The record reveals
a significant level of discord between Grandparents and Mother due to Mother’s relationship with K.W. and K.W.’s relationship with
C.L.H. The trial court found that the parties
hurt’ one another, but the court’s order does not
indicate that it considered the totality of the circumstances in determining the best interests of
C.L.H.”
Najam pointed out that the Guardian ad litem had found the B.L.H. had “valid” reasons
for denying visitation to her parents. “While a
trial court is not required to accept a parent’s
reasons for denying visitation with grandparents as necessarily true, here, the undisputed
evidence shows that Mother is a reasonable
person and has a rational basis for the decision,
134
which she did not come to easily,” wrote Najam.
“The trial court did not make any finding regarding the validity or reasonableness of
Mother’s decision.”
After noting that B.L.H. tried to maintain
some relationship with her parents despite their
disapproval of her sexual orientation and her
partner, and that she gave up on this “after she
felt physically threatened by Grandfather” at
Christmas time in 2007, Najam asserted that
the grandparents “did not have clean hands
when they filed their petition for visitation.
Confrontations initiated by Grandparents created unnecessary conflict and stress within the
family. While they are entitled to their opinions
concerning Mother’s relationship with K.W.,
Grandparents’ open hostility toward Mother
created an unhealthy environment for C.L.H. In
time, when civility is restored, Mother and
Grandparents may reach a private reconciliation which enables Grandparents to visit with
C.L.H., but under the circumstances Grandparents have failed to show that it is in the best
interests of C.L.H. for the State to intervene and
compel visitation against the well-founded concerns of Mother, who is a fit parent.”
Kathleen M. Sweeney and Robert A.
Schembs of Indianapolis represented B.L.H.
on the appeal. Surprisingly, in light of their having instituted the lawsuit, the grandparents did
not respond to the appeal to protect their victory
in the trial court, leaving the court to make its
ruling based on the trial record and the arguments of B.L.H.’s attorneys. A.S.L.
California Court of Appeal Rejects Constitutional
Challenge to Presumed Parent Status and Orders
Reunification of Child With Lesbian Co-Parent
In a sharply contested child visitation dispute
involving former lesbian partners that drew in
the right-wing Liberty Counsel on behalf of the
biological mother, the California First District
Court of Appeal ruled on June 26 that a trial
court order recognizing the parental rights of
the co-parent and ordering reunification with
the child after a lapse of many years did not violate the due process or equal protection rights of
the biological mother. Finding record evidence
supported the trial court’s conclusion that the
former lesbian partner was a presumed parent
and that the presumption had not been rebutted, the court also ordered the trial court to consider requiring the biological mother to help
defray the reunification travel costs of her
former partner. Charisma R. v. Kristina S., 2009
WL 1813148.
The women had lived together for several
years and registered as California domestic
partners when they decided to have a child
through anonymous donor insemination. Kristina R. became pregnant. Charisma assisted
throughout the pregnancy, was present at the
birth and cut the umbilical cord, and the child
Summer 2009
was given a hyphenated surname on her birth
certificate recognizing the parental connection
with both women. Charisma assisted with child
care during the first six weeks of life, and then
became primary caregiver when Kristina returned to work. However, after a few more
weeks, Kristina moved out with the child, and
then moved from California to Texas to be with
relatives. Kristina filed documents to dissolve
the domestic partnership, and cut off contact
between the child and Charisma, who filed suit
in California seeking an order confirming her
parental status and requiring Kristina to allow
renewed contact. Years have passed since there
was contact with the child.
The trial judge found that Charisma was a
“presumed parent” pursuant to California’s
parentage law, and that Kristina had failed to
rebut the presumption. As a result, acting on
the recommendation of child evaluators appointed by the court, the trial judge ordered that
a process of supervised reunification be undertaken. However, when Kristina objected to being required to help defray Charisma’s expenses of traveling to Texas for reunification,
the trial judge backed off, expressing doubt that
this was the type of “runaway parent” situation
where such an order could be made.
The Court of Appeal found that Kristina’s attempts through Liberty Counsel to undermine
the trial court’s judgement was unavailing. At
the heart of her argument was that Charisma’s
parenting experience with the child was too
brief for these doctrines to apply to her. It was a
matter of just a few months between the birth of
the child and Kristina’s action in moving out.
But the court concluded that there was no durational test imposed by the statute, which finds
presumed parental status when the nonbiological parent “receives” the child in her
home and acts as the child’s parent. Wrote Presiding Justice Simons, “We conclude that receipt of the child into the home must be sufficiently unambiguous as to constitute a clear
declaration regarding the nature of the relationship, but it need not continue for any specific
duration. This conclusion is consistent with the
public policy favoring a child having two parents to provide emotional and financial support, which prior courts have emphasized in interpreting the UPA. Although cohabitation for
an extended duration may strengthen a claim
for presumed parent status, section 7611(d)
does not require that cohabitation or coparenting continue for any particular period of time.”
Liberty Counsel evidently made the usual
slippery slope argument that allowing legal
status to a biological stranger would open the
door to all kinds of invalid and intrusive parenting claims by non-parents, earning this rebuke
from the court, in a footnote: “It is frivolous for
Kristina to assert that extending presumed parent status to Charisma would justify extending
such status to babysitters, nannies, or other
Lesbian/Gay Law Notes
home caretakers. Among other things, such
persons would not have engaged in a joint effort
to conceive a child in a committed romantic relationship, would not have their last name attached to the child on the birth certificate, and
would not be able to hold themselves out as the
child’s mother without strenuous objection
from the biological mother and her relatives.”
The court found that overwhelming record
evidence supported Charisma’s claim to be a
parent in this case, and that Kristina’s objection
to various aspects of the testimonial and documentary evidence did not affect that decision,
giving the weight of the uncontradicted evidence presented by Charisma. It also noted that
Kristina’s unilateral decision to move out with
the child had prevented Charisma from establishing a longer duration of actual parenting of
the child. “Accordingly,” wrote Justice Simons,
“this is not a case where the short duration of
parenting reflects negatively on an alleged parent’s commitment to establishing a parental relationship. The relatively short period that Charisma parented Amalia is not alone a basis to
rebut the parentage presumption.”
In holding Kristina’s constitutional equal
protection claim to be without merit, the court
asserted that Kristina “has not shown that a
similarly situated biological mother opposing a
petition to establish presumed parentage would
be treated differently under the law if the alleged parent, lacking a biological connection to
the child, were a man instead of a woman. In
other words, Kristina has not shown that a case
involving a man in Charisma’s circumstances
would be decided any differently under the
law.”
The due process argument presented a more
serious issue, since the U.S. Supreme Court has
protected the right of biological parents, if not
proven unfit, to make decisions about the contact of their children with third parties, the key
recent precedent being Troxel v. Granville, 530
U.S. 57 (2000), in which the Supreme Court invalidated a state law that mandated allowing
grandparents to have visitation rights over the
objection of biological parents. But the California appeal court found Troxel distinguishable in
this case, because Charisma is deemed a parent, not a legal stranger, under California law.
“Troxel is inapposite,” wrote Simons.
“There, the court considered a nonparental
visitation statute; at issue here is a statute determining the identity of Amalia’s parents. Unlike the order in Troxel, the order declaring
Charisma a parent of Amalia by definition did
not extend rights to a non-parent… In this case,
Kristina and Charisma decided to have a child
together, they jointly pursued the goal of Kristina becoming pregnant, and Charisma was
present at the birth and cut the umbilical cord.
Kristina’s parentage claim arises from the fact
that she gave birth to Amalia. And, at the time of
the birth, Charisma had an inchoate parentage
Lesbian/Gay Law Notes
claim because she actively consented to, and
participated in, the artificial insemination of
her partner with the understanding that the resulting child would be raised by [Kristina] and
her as co-parents.’ Charisma’s parentage claim
was not legally complete until she accepted
Amalia into her home, but it arose at the same
time as Kristina’s claim. Because Charisma ultimately satisfied the legal standards for presumed parent status and her showing was not
rebutted, declaring her a parent is not giving
parental rights to an unrelated individual; it is
recognizing the parental role that existed from
birth.”
The court pointed out that Kristina’s “true
complaint is that the state has seen fit to declare
a person without a biological connection to
Amalia a parent.” But the court found that Kristina had presented “no authority or reasoned
argument that a state infringes on a biological
parent’s substantive due process rights by extending parental status to a nonbiological parent in the circumstances of this case. It may be
that there are different circumstances in which
such an order would be unconstitutional, but
any such determination would require a careful
analysis of the specific facts and interests involved in the case.” The court pointed out that a
careful balancing of interests would be needed
in such a case, and that the child’s interest in
maintaining ties with the co-parent would also
have to be weighed in the balance, not just Kristina’s interest as a biological mother.
The court rejected an argument that the recommendations of the evaluators appointed by
the court were biased because it was shown that
at one time they had been donors to the National Center for Lesbian Rights, which had
provided some assistance to Charisma in this
case, and also rejected a claim that the trial
judge was biased against Kristina. Finally, the
court rejected the trial judge’s conclusion that
the costs of reunification could be born by Charisma without any assistance from Kristina,
noting that the statute authorizes such expenses
when it is in the interest of the child to be reunified with the parent and travel expenses as a result of a custodial parental move would make it
difficult for the non-custodial parent to participation in those activities.
Given Liberty Counsel’s participation in the
case and the raising of constitutional questions
of first impression, it is likely that an appeal will
be sought. A.S.L.
Wisconsin Court Rejects Claims for Same-Sex
Employee Benefits
An elected judge in Dane County, Wisconsin,
has dismissed a claim for equal benefits for lesbian or gay couples, while making the case for
providing such benefits. Judge David Flanagan
made it clear that the only reason why he
granted summary judgment to the state was that
Summer 2009
precedent in his judicial district required him,
unwillingly, to do so. Dunnum v. Department of
Employee Trust Funds, Case No. 05 CV 1265
(Wisconsin Cir. Ct., Branch 12, Dane County,
May 29, 2009) (not officially published).
[Author’s Note: In the Wisconsin court system, each county has a circuit court; Judge
Flanagan is one of 17 judges in Dane County.
He felt bound to apply a 1992 holding of the
Wisconsin Court of Appeals, Phillips v. Wisconsin Personnel Com’n, 187 Wis. 2d 205, 482
N.W.2d 121 (Ct. App. 1992). There are four
courts of appeals in Wisconsin, and, according
to Judge Flanagan, only the Wisconsin Supreme Court can overrule a decision of a court
of appeals.]
The issue was whether the equal protection
clause of the Wisconsin Constitution requires
that same-sex couples be given sick leave,
health insurance, and family leave in the same
manner as married couples. Both plaintiffs and
defendants filed motions for summary judgment; the decision is on those motions. Judge
Flanagan opines in the conditional tense: he
would hold that the equal protection clause so
requires, but precedent requires that he not so
hold.
The plaintiffs are five lesbians working for
various state departments, each one in a longterm relationship ranging in duration from five
to 33 years. They challenged statutes that define “dependent” for purposes of health insurance eligibility, and “family members” for purposes of the medical leave act. Wis. Stats. Secs.
40.02(20), 103.10(3). The equal protection
clause in question states that “All People are
born equally free and independent, and have
certain inherent rights: among these are life,
liberty and the pursuit of happiness.…” Wis.
Const. Art. I, sec. 1. Although this amendment
is more similar to the Declaration of Independence than the U.S. Constitution, Wisconsin
courts have held that the amendment implies
the same equal protection guarantees as those
found in the U.S. Constitution.
Before the judge could consider whether
equal protection applies to same-sex couples,
he had to determine whether the marriage
amendment to the Wisconsin Constitution prohibits the granting of benefits to same-sex couples. The marriage amendment says: “Only a
marriage between one man and one woman
shall be valid or recognized as a marriage.… A
legal status identical or substantially similar to
that of marriage for unmarried individuals shall
not be valid or recognized.…” Wis. Const. Art.
XIII, sec. 13. Judge Flanagan considered
whether the right that the plaintiffs request creates “a legal status identical or substantially
similar to that of marriage.” He answered in the
negative; granting of just a few of the privileges
that married people receive, namely, health
coverage, sick leave, and family leave, creates
nothing even remotely approaching “mar-
135
riage.” The marriage amendment does not,
therefore, forbid same-sex couples from receiving such benefits, according to Judge Flanagan.
After disposing of the marriage amendment
question, the court next determined whether
strict scrutiny should be applied to the denial of
benefits to same-sex couples. Judge Flanagan
said that unquestionably the statutes at issue
discriminate based on marital status. The legal
question, however, is whether homosexuals,
and specifically same-sex couples, constitute a
suspect or quasi-suspect class, to which strict
scrutiny under the equal protection article must
be applied. A suspect class is one that (1) has
suffered a history of invidious discrimination;
(2) has been discriminated against based on a
characteristic with no relationship to the class
members’ ability to perform in society; (3) suffers discrimination for having an immutable
characteristic; and (4) has been in a position of
political powerlessness. Courts have differed,
noted the judge, as to whether homosexuals
constitute a suspect class, and no Wisconsin
court had so decided. Federal cases had not addressed the issue, but the high courts in other
states, namely, Iowa, Connecticut, and California, had deemed gays and lesbians a suspect or
quasi-suspect class, and, if he were able, Judge
Flanagan would so hold.
If a statute discriminates against a suspect
class, it must do so to promote a compelling
governmental interest, and be carefully tailored
to use the least drastic means to achieve that interest. Judge Flanagan notes that the main state
interest here is the added cost, which had been
calculated at between a 0.25% and 0.75% increase. That amount is “a consequential matter
in today’s economy,” but such increased costs
are not enough to justify disparate treatment.
Nor is the state’s desire to promote administrative efficiency by having a bright-line distinction between those who can and those who cannot receive coverage. The judge would find the
statutes unconstitutional as violative of the
equal protection article.
But he could not. Phillips v. Wisconsin Personnel Com’n had held, in a similar challenge,
that there was no equal protection violation, because both homosexuals and heterosexuals are
able to get married to persons of the opposite
sex, and to take advantage of the benefits offered.
Because of developments since this 1992
decision, the plaintiffs’ argument to reconsider
Phillips is strong, said the judge, but Judge
Flanagan was “constrained by stare decisis,”
and had to abide by Phillips. Only the Wisconsin Supreme Court can change that outcome.
Thus, the judge dismissed the plaintiffs’
claims in their entirety. Alan J. Jacobs
136
Federal Judge Finds Dismissal of Transgendered
Employee May Violate the Constitution
U.S. District Judge Richard W. Story ruled on
June 25 that Georgia legislative officials may
have violated the 14th Amendment’s Equal
Protection Clause when they terminated an employee because she was undergoing gender
transition. Rejecting a motion to dismiss by five
Georgia officials who are charged with responsibility for the dismissal decision, Judge Story
found that Vandiver Elizabeth Glenn’s complaint “clearly states a claim for denial of equal
protection” on alternative theories of sex discrimination or discrimination on the basis of a
medical condition, gender identity disorder.
Glenn v. Brumby, 2009 Westalw 1849951
(N.D.Ga.).
Lambda Legal staff attorneys Cole Thaler
and Gregory R. Nevins, in Lambda’s Atlanta office, represent Glenn.
The ruling is significant in going beyond Title VII, the federal employment discrimination
statute, to find a federal constitutional basis for
challenging a state government employer’s discrimination against a transgendered employee.
According to Judge Story’s opinion, Glenn,
perceived by the defendants as male, was hired
by the Georgia General Assembly’s Office of
Legislative Counsel in 2005 to be a Legislative
Editor, in which position she was charged with
editing proposed legislation and resolutions for
grammar, spelling, and format. She did not have
any policy-making role.
Glenn was diagnosed with gender identity
disorder in 2005, and her doctors determined
that gender transition was a “medically necessary treatment” for her. In line with the accepted medical protocol for dealing with gender identity disorder, they recommended that
she begin living full-time as a woman prior to
undergoing gender reassignment surgery.
In October 2006, Glenn informed her immediate superior at work that she was a transsexual who planned to transition in 2007. The superior, Senior Editor Beth Yinger, responded
that she foresaw no problem with this, but when
Glenn showed up to work on October 31 garbed
and groomed as a woman, Yinger’s boss, Sewell
Brumby, sent her home as “inappropriately
dressed.” In July 2007, Glenn notified Yinger
that she intended to proceed with gender transition, and a few months later provided educational materials to Yinger, who passed them
along to Brumby, who told Yinger he would consult with legislative leaders about how to handle the situation.
On October 16, 2007, Brumby met with
Glenn, confirmed that she planned to go ahead
with gender transition, and then discharged her.
Brumby’s stated reason for the discharged, as
described by Judge Story, was that “in the view
of Glenn’s employers, gender transition surgery
and presentation as a woman in the workplace
Summer 2009
would be seen as immoral, could not happen
appropriately in Glenn’s workplace, and would
make other employees uncomfortable.”
Glenn sued based on two equal protection
theories: discrimination on the basis of medical
condition, and discrimination on the basis of
sex. The defendants moved to dismiss, arguing
that she was attempting to bring a “class of one”
equal protection claim, of a type the Supreme
Court recently ruled cannot be asserted in the
context of government employment. According
to the Supreme Court’s 2008 decision in
Engquist v. Oregon Department of Agriculture, a
government employee can assert an equal protection claim only by showing that they encountered discrimination because of membership in
a particular group.
Judge Story found that Glenn’s allegations
were “not consistent with a class-of-one
claim,” because she did not asset that the defendants acted against her because of “characteristics unique solely to Glenn,” but rather because of her gender identity disorder and her
sex, characteristics shared by others.
Story found that there is precedent in federal
law for finding an equal protection violation
based on the way a government employer deals
with an employee with a particular medical
condition. The most obvious example are cases
alleging discrimination on account of HIV
status. In such cases, the court applies rationality review, and the government’s action can be
challenged by showing that there is no legitimate non-discriminatory justification for the
discrimination. As to sex discrimination, federal courts have held that a higher standard applies. Sex discrimination is presumptively unlawful, and the burden is on the government to
show that it has an important policy justification for discriminating based on sex. It is now
well-established in federal law that discrimination based on the failure of an individual to conform to sexual stereotypes is a form of sex discrimination.
In this case, Story wrote, Glenn had met the
burden of showing that she was treated differently based on her GID and her failure to conform to sexual stereotypes, and had placed into
question the legitimacy of the employer’s reason for discharging her. “Defendants do not
claim that Glenn’s transition would have rendered her unable to do her job nor do they present any government purpose whatsoever for
their termination of Plaintiff’s employment,”
wrote Story. “Indeed, no government interest
has been identified... and this issue is properly
a question to be decided should the court reach
the merits of this claim,’” he wrote, quoting
from the prior case about HIV discrimination,
Doe v. U.S. Postal Service (1985).
As Story pointed out, “Anticipated reactions
of others are not a sufficient basis for discrimination. Furthermore, unequal treatment fails
even the most deferential equal protection re-
Lesbian/Gay Law Notes
view when the disadvantage imposed is born of
animosity toward the class of persons affected,’” he asserted, quoting the Supreme
Court’s landmark gay rights opinion from 1996,
Romer v. Evans.
Judge Story’s denial of the motion to dismiss,
in language suggesting that the defendants’
case as described so far has no legal merit, is
likely to lead to some sort of settlement rather
than a trial. A.S.L.
New California Proposition 8 Suit Proceeds on
Fast Track, Generates Controversy
U.S. District Judge Vaughn R. Walker
(N.D.Cal.) held a first hearing on July 2 in Perry
v. Schwarzenegger, the pending federal constitutional challenge to California Proposition 8
that was filed by Theodore Olson and David
Boies on behalf of two same-sex couples who
desire to marry shortly before the California Supreme Court had announced its decision rejecting a state constitutional challenge in Strauss v.
Horton, 46 Cal.4th 364, 207 P.3d 48 (2009).
The litigation is financed by the American
Foundation for Equal Rights, a non-profit organization that was established specifically to
bring this lawsuit. The plaintiffs had sought
preliminary injunctive relief, ordering the state
to resume allowing same-sex couples to marry
pending the outcome of the case, relying on
their assertion that the unconstitutionality of
the initiative amendment under the 14th
Amendment was patent. Judge Walker bowed
to the arguments by counsel for the attorney
general and the governor that it would create
too much potential confusion to allow marriages
to resume before a final ruling in the case.
Walker reflected the clear understanding that
his court was merely a way-station for this case,
and said he wanted to expedite making a full
record that would serve for appellate review. He
requested the parties to file a stipulated set of
facts by August 7, and indicated that a hearing
would be set for August 19.
Noting that neither the governor nor the attorney general are defending on the merits,
Walker permitted intervention by the Proposition 8 Proponents, who are being represented
by Charles J. Cooper, a prominent conservative
attorney who worked in the White House Office
of Legal Counsel during the Reagan Administration and is thus a former colleague of Ted
Olson. Cooper argued that the lawsuit is “radical” in that it does not merely attack Prop 8 but
potentially affects the legal definition of marriage in 43 other states. (Six states have opened
up marriage to same-sex couples either by
court order or legislation — Iowa plus five New
England states.) Olson and Boies are pursuing
a narrower strategy, focusing on the history of
marriage developments in California and attacking the enactment of Prop 8 in that context.
Lesbian/Gay Law Notes
Three major national LGBT legal advocacy
groups, National Center for Lesbian Rights,
Lambda Legal, and the LGBT Project of the
ACLU, filed an amicus brief in support of plaintiffs, but then sparked controversy by filing a
joint motion to intervene as co-plaintiffs on July
8 on behalf of three organizations: Our Family
Coalition; Lavender Seniors of the East Bay;
and Parents, Families, and Friends of Lesbians
and Gays. Their motion was returnable on September 3. Their rationale for intervention was
that Judge Walker had issued a notice on June
30 specifying the legal issues that would need
to be addressed, suggesting that a wide-ranging
trial record should be compiled as the basis for
appellate review, and that these three organizations had accumulated substantial relevant expertise in the course of their public interest advocacy and would thus be able to provide a
great benefit to the court and the other parties
by their participation. The two law firms in
which Boies and Olson are partners notably
lack expertise in the field. Furthermore, the
LGBT groups argued, the plaintiffs represented
only two same-sex couples who seek to marry,
while the LGBT groups represent three organizations spanning the diversity of the LGBT
community, all of whom would be affected by
the ultimate ruling in this case, and whose interests would not necessarily be represented by
the plaintiffs in all respects.
This motion immediately prompted an open
letter to the three groups from Chad Griffin,
Board President of the American Foundation
for Equal Rights, declaring “vigorous” opposition to their intervention, pointing out that the
three groups had “unrelentingly and unequivocally acted to undermine this case even before
it was filed” and thus could not be counted
upon to “zealously and effectively” litigate the
case as plaintiff-intervenors. As soon as the
Strauss decision was issued, the LGBT litigation groups had issued a joint statement discouraging the filing of a federal challenge to
Prop 8 and urging California proponents of
same-sex marriage to devote their attention to
organizing to repeal the constitutional amendment through the initiative process. When the
filing of Perry was announced, spokespeople for
the LGBT litigation groups voiced disapproval,
contending that filing such a suit was premature, that success was uncertain, and that failure could be devastating. In effect, the Griffin
letter accused the LGBT legal groups of trying
to hijack AFER’s lawsuit and slow it down,
where the strategy of the suit had been to progress quickly to an appellate stage. Spokespeople for the three LGBT litigation groups expressed astonishment at the contention that
they would enter a case in order to try to lose it,
and insisted that their purpose was to make
sure that the court had the broadest possible
factual record upon which to base a ruling and
subsequent appeals. Stay tuned for “vigorous”
Summer 2009
argument. (See Washington Post, “Gay Legal
Groups Want In On California Court Case”,
July 9). A.S.L.
Maine Supreme Court Remands Sexual
Orientation Employment Discrimination Claim For
Trial
On June 2, the Supreme Judicial Court of
Maine announced that Kelly Jo Cookson, a lesbian, was successful in her appeal of a grant of
summary judgment to the defendant school district and school superintendent in a sexual orientation discrimination case. Cookson v. Brewer
School Department, 2009 ME 57, 2009 WL
1532949 (Maine, June 2, 2009). Finding disputed issues of material fact, the court remanded for trial of Cookson’s claim that she
was not rehired as head coach of the Brewer
High School varsity softball team because of
her sexual orientation.
Cookson was head coach for 12 years between 1993 and 2005. The team was by all accounts quite successful during that period, and
made the playoffs in every year but one. Despite the team’s success, Cookson was not rehired for the 2005–2006 season. Claiming sexual orientation discrimination and slander,
Cookson filed suit against the Brewer School
Department and the school superintendent,
Daniel Lee. Her complaint alleged that she was
not rehired because she was a lesbian, and that
Lee made false and defamatory statements
about her to the parents of the members of her
team.
Cookson’s troubles began during the spring
of 2005, when a player on the softball team quit,
alleging that Cookson took the players to a
sheep farm where they were forced to touch and
walk in feces in an act of hazing. Betsy Webb,
the district superintendent at the time, determined that the hazing had in fact occurred prior
to both the 2004 and 2005 seasons, and accordingly issued a letter of reprimand to Cookson.
The issue seemed settled, until Daniel Lee
replaced Webb as superintendent in the fall.
Shortly after taking the position, Lee received
notice that the student who called attention to
the hazing was considering a tort claim against
the school. Lee met with Cookson, during
which the coach pointed out that other teams
regularly participated in hazing activities, emphasizing the fact that her behavior was no
worse than that of the district’s other coaches.
Cookson was also adamant that she would not
resign her post, and Lee was allegedly reassuring, telling her that as far as termination was
concerned, they “weren’t even thinking along
those lines.” Lee was supposedly unaware of
Cookson’s sexual orientation when he made
that statement. The complaining student’s family also provided the superintendent with a report by a private investigator whom they had
137
hired to dig up dirt on Cookson. The exact contents of the report are unknown, but Lee took
the report quite seriously. Lee met with parents,
who by all accounts voiced support for Cookson. Lee countered by informing them that he
had access to information that “he could not
share with them and that Cookson may not have
been entirely truthful with them.” Apparently
he left the distinct impression that Cookson’s
behavior in private closely resembled or was at
least as objectionable’ as that of one of Lee’s
former colleagues, who, as Lee explained it,
was a member of a nudist colony. The gist of
Cookson’s account seems to be that Lee learned
of the coach’s sexual orientation through the
private investigator’s report. The timing of this
revelation is crucial, as it could show that while
at one point Lee was not even considering firing
Cookson, after learning of her sexual orientation he changed his mind.
In the Brewer school system, candidates for
positions at the school are nominated by the superintendent, and the School Department
makes the final hiring decision. Lee declined to
nominate Cookson that autumn, instead backing Skip Estes, the considerably less experienced junior varsity softball coach, for the head
coach position. The school board hired Estes
and Cookson was not brought back in any capacity. Convinced that her sexual orientation
motivated the decision, Cookson filed a sexual
orientation discrimination action in the Superior Court of Maine, and initiated an action for
slander in response to Lee’s representations to
parents regarding her private behavior.
After filing an answer to Cookson’s complaint, the School Department and Lee jointly
moved for summary judgment on both counts.
The defendants claimed that Cookson was not
rehired because of the hazing incidents, and
because she did not offer a balanced sports program. Cookson failed to show that this was not
the case, the lower court determined, and
granted summary judgment in favor of the defendants. Cookson was out of luck on her slander claim as well, because the Court found that
Lee’s statements to parents were technically
true. Cookson appealed to the Supreme Judicial Court of Maine.
The state Supreme Court made quick work of
the slander claim, affirming the holding that
Cookson had failed to offer any facts that would
dispute the truth of Lee’s statements. Lee was
required by law to keep all employee information confidential, and Cookson offered no evidence that any of Lee’s statements were patently false. Affirming the grant of summary
judgment in favor of Lee, the Court then moved
on to the discrimination claim.
The opinion by Judge C.J. Saufley notes that
appeals of summary judgment are reviewed de
novo, and allegations are viewed in a light most
favorable to the losing party. In an employment
discrimination claim, the employee must es-
138
tablish a prima facie case by demonstrating that
(1) the employee is a member of a protected
class; (2) the employee applied for and was
qualified for the job that the employer was
seeking to fill; (3) the employee was not hired
for the job; and (4) the job was later filled by a
person who was not in the protected class. If the
four elements are shown, the presumption is
that the employment action was made for illegal
discriminatory reasons, and the burden shifts to
the employer, who must show that a legitimate,
nondiscriminatory reason was their real motivation. If the employer can show this, the burden shifts back to the plaintiff employee who
can put forward evidence that the employer’s
stated reason is only a pretext to cover up the
true, discriminatory reason behind the adverse
employment action. Maine’s Human Rights
Act forbids discrimination on the basis of sexual orientation.
Judge Saufley briefly notes one of the complicating factors of this case: the School Department was the ultimate decision maker in
whether to rehire Cookson, not Lee. The opinion rejects Cookson’s claim that the School Department harbored its own animus towards her
sexual orientation, but notes that “the record
does support the fact that the Committee deferred to Lee’s recommendation regarding her
contract renewal and did not conduct its own
investigation into the matter.” Accordingly,
Cookson need only demonstrate that Lee’s motivations were discriminatory and both Lee and
the School Department can be held liable. The
Court determined that Cookson satisfied the
elements of her claim because (1) she is a lesbian; (2) she applied for and was qualified for
the job of softball coach; (3) she was not rehired
for the job; and (4) the job was later filled by a
person who is not in the protected class. The
school then claimed that Cookson was not rehired because of nondiscriminatory reasons:
that she was involved in hazing, in violation of
school policy, and that she failed to provide a
balanced sports program. Cookson responded
by claiming that the school’s stated reasons
were just a pretext, and that she was actually
not rehired because of Lee’s objection to her
sexual orientation, in violation of the Maine
Human Rights Act. She alleges that, based on
his statements to her and his actions, Lee intended to recommend the school rehire her and
it was only after learning of her sexual orientation that he changed his mind.
Because summary judgment is “not a substitute for trial,” wrote Justice Saufley, “[e]ven
when one party’s version of the facts appears
more credible and persuasive to the court, a
summary judgment is inappropriate if a genuine factual dispute exists that is material to the
outcome,” in which case “the dispute must be
resolved through fact-finding.” The court requires more than just bare allegations that the
employer’s stated motivation was a pretext, but
Summer 2009
the court found that Cookson’s version of events
exceeded this threshold. Judge Saufley opined
that the lower court improperly based its decision on which explanation it found more persuasive. At the summary judgment stage, the
court only determines whether an issue of material fact exists, rather than which account is
more plausible. The case is now remanded so
that all the facts can be laid out at trial and a
jury, the proper finder of fact, can decide whose
account is more credible. Stephen E. Woods
Air Force Appeals Court Upholds Reprimand for
Gay Oral Sex Between Service Member and
Civilian
Ricky Harvey, a chaplain in the United States
Air Force based in Turkey, was caught on tape
giving oral sex to a male Turkish national. However, rather than being charged for sodomy under the military code, Harvey was charged with
engaging in “conduct unbecoming an officer
and gentleman.” In appealing the case, Harvey
claimed that his conduct was protected by the
Supreme Court’s decision in Lawrence v. Texas ,
that the trier of fact should have been given the
ability to determine if Harvey’s conduct was a
protected liberty interest, and that the trial
judge committed error by failing to recuse himself when he responded to Harvey’s motion to
dismiss by stating: “I cannot conceive of a
situation, given the allegations and what I know
about the case now, where I would conclude
that the sodomy was not disgraceful.” Appellate Military Judge Gary M. Jackson, writing for
the U.S. Air Force Court of Criminal Appeals,
found against Harvey on all his claims. United
States v. Harvey, 2009 WL 1508376 (A. F. Ct.
Crim. App. Apr. 9, 2009).
Judge Jackson first turned to the impact of
Lawrence on the case, noting the 3–part “Marcum” Factors used when evaluating whether a
military crime proscribing certain sexual conduct is unconstitutional as applied to an accused member of the military. The first factor,
whether the conduct accused was within the
liberty interest of Lawrence, was answered in
the affirmative as Harvey had engaged in private, consensual sex. Judge Jackson also found
that the second factor, whether the conduct was
outside of the analysis of Lawrence, was answered in the negative since there were no minors, prostitutes, or other individuals involved
that were explicitly not included by the Supreme Court in Lawrence. The third factor asks
whether there are any additional factors relevant in the military context. Noting that there
was no subordinate-superior relationship present or other military personnel involved, this
too was answered negatively. Based on this test,
it would appear that Lawrence would have
given constitutional protection to Harvey’s conduct.
Lesbian/Gay Law Notes
However, Judge Jackson, noting that this was
a case of first impression, felt that the inquiry
had to extend to encompass the military’s
“higher code termed honor.” Thus, Harvey’s
actions were then analyzed to see whether it
brought “dishonor or disrepute” to the military.
Although Harvey’s actions might fall within a
recognized constitutional liberty interest, that
did not insulate that conduct from being considered unbecoming of an officer, wrote Jackson. Applying the facts to this standard, Jackson noted that Harvey’s performance of oral sex
with a Turkish national at a time when Harvey
was aware that rumors circulated on the base
concerning his homosexuality, all the while
serving as a representative of the U.S. Air force,
“ evinced a degree of indecorum that disgraced” Harvey. Accordingly, the charge of
conduct unbecoming an officer was found constitutional.
Judge Jackson also found that the military
judge’s failure to instruct the jury on the Marcum Factors was not in error. Noting the “substantial discretionary power” judges have in
picking instructions, Judge Jackson found that
the Marcum Factors were questions of law for
the judge, not for the trier of fact. Further, Harvey’s failure to object at the time of the instructions and his additional request at trial that the
Marcum Factors not be instructed barred this
claim under the doctrines of waiver and invited
error.
As to the denial of the recusal motion, Judge
Jackson again found no error. The trial judge’s
statements were made concerning the evidence
at hand in reply to the defense counsel’s motion
to dismiss prior to entry of additional evidence.
Further, the defense counsel admitted that the
trial judge had “bent over backwards” to make
the trial fair. The trial judge’s own promise to be
impartial also carried great weight. Lastly, any
possible bias of the judge did not appear to be
personal and objective review of the trial record
did not reveal any breach in fairness. The decision to reprimand Harvey for conduct unbecoming was thus upheld. Chris Benecke
Florida Supreme Court Rejects Liberty Counsel’s
Challenge to State Bar Family Law Section Amicus
Brief in Gay Adoption Case
In Liberty Counsel v. The Florida Bar Board of
Governors, 2009 WL 1544281 (June 4, 2009),
the Florida Supreme Court ruled that the Family Law Section of the Florida Bar could submit
an amicus brief in a case pending before the
Florida Third District Court of Appeal, an intermediate appellate court based in Miami, challenging the constitutionality of the Florida statute barring “homosexuals” from adopting
children. The Family Law Section’s brief supports the trial court’s decision to strike down the
law. The Supreme Court decision is strictly on
whether the the Family Law Section would be
Lesbian/Gay Law Notes
permitted to submit a brief. This decision did
not address the merits of the underlying case, or
even whether the Third District Court of Appeal
would be obliged to accept the section’s amicus
brief.
The Florida Bar is an “integrated bar.” Membership is mandatory for all practicing Florida
attorneys. It is an arm of the Florida Supreme
Court, governing the conduct of one of the largest bars in the country. Its activities are widereaching, addressing some areas where participation is mandatory and others where it is voluntary. The Florida Bar administers discipline,
regulates the unauthorized practice of law,
manages the largest continuing legal education
program in the state, publishes a monthly
magazine, a bi-weekly newspaper, and dozens
of practice guides in a variety of formats. It supervises two statewide bar meetings each year.
There are more than 40 voluntary committees
and sections which meet under its aegis. Some
of these sections and committees deal with
management of the court system and the bar,
some with rules of procedure of the various trial
and appellate courts, and some with substantive areas of law (real estate, probate, aviation,
tax, entertainment, family, etc.). Most of these
voluntary substantive law sections are funded
by dues collected from their members, by
“check-offs” on the annual Florida Bar dues
statement.
The Family Law Section sought and obtained
permission from the Florida Bar Board of Governors to appear as amicus in opposition to the
statute. Liberty Counsel, a conservative public
interest law firm which advocates throughout
the country on a variety of issues, joined by two
members of the Florida Bar (both affiliated with
Liberty Counsel), sought an injunction barring
the Family Law Section from participating in
the case before the Third Department Court of
Appeal. They argued that 1) the Florida Bar
violated the plaintiffs’ First Amendment rights
by permitting the Family Law Section to file the
amicus brief, 2) that the Florida Bar’s approval
of the filing of the amicus brief was an ultra vires
act in violation of its own policies, and 3) that
the Bar’s approval of the filing of the amicus
brief places judges who are members of the the
Family Law Section in the position of violating
the canons of judicial ethics. Liberty Counsel
has also sought leave to file an amicus brief in
support of the statute in question before the
Third District Court of Appeal.
The Florida Supreme Court rejected each of
Liberty Counsel’s claims and denied the injunction, ruling that Liberty Counsel did not establish that there would be a violation or a
“clear legal right” to relief.
In a footnote, the court rejected the third
claim, that the filing of the amicus brief places
judges who are members of the Family Law Section in the position of violating the canons of judicial ethics, ruling that nothing in the canons
Summer 2009
or in Florida case law bars judges from belonging to associations because the association endorses a position as the result of a decision in
which the judge took no part.
With regard to the first amendment issue, the
Florida Supreme Court ruled that, unlike the
situation found in the U. S Supreme Court case
of Keller v. State Bar of California, 496 U.S. 1
(1990), which ruled that mandatory bar dues
could not be used to fund “activities that are not
germane to the regulation of the legal profession and the quality of legal services for the
people of the State,” this case did not involve
the expenditure of mandatory dues to advocate
on particular issues, as the Family Law Section
is funded by voluntary dues. The Supreme
Court stated that the Family Law Section advised the court that the brief in question would
be written by non-bar counsel on a pro bono basis. The Supreme Court concluded that any expenditure of bar funds would be de minimis.
The Florida Supreme Court also rejected the
claim that the submission of the amicus brief
was an ultra vires action of the Florida Bar. The
Florida Bar has guidelines concerning the filing of amicus briefs by sections, divisions and
committees. These units of the Florida Bar
“may not adopt a position or submit an amicus
curiae brief in pending litigation unless the issue involved is within the area of subject matter
interest of the division, section or committee as
described in its bylaws or official charge, and
the issue is not one that carries the potential of
deep philosophical or emotional division
among a substantial segment of the membership of the bar.” In a summary fashion, the Supreme Court noted that the Florida Bar Board of
Governors had chosen to permit this voluntary
section to submit an amicus brief. The Court
said that the decision of the Board of Governors
was entitled to deference, and that the Supreme
Court would not “micromanage70 the Board of
Governors under these circumstances.
Two members of the seven-member court
filed a vigorous dissent, arguing that the Board
of Governors of the Florida Bar failed to follow
its own procedures in considering whether to
approve the filing of an amicus brief in a highly
divisive issue. The dissenters outlined, at great
length, the process which should be followed
when the Board of Governors is supposed to
consider such issues under these circumstances, and concluded that the Board of Governors completely failed to apply them. The
dissenters argued that, at most, the Board of
Governors implicitly approved the action of the
committee, but not in a fashion that was in compliance with its own procedures on point (which
generally required a 2/3 vote) or with Roberts
Rules of Order. In contrast to the majority opinion, the dissenters’ discussion on this point
went into great detail. The dissenters argued
that the Supreme Court would not be “micromanaging” the Bar, but would be requiring the
139
Bar to comply with its own rules on this controversial issue. Steve Kolodny
Wisconsin Appeals Court Rejects Equal Protection
Challenge to Age Limits in Sex Law
The Court of Appeals of Wisconsin has rejected
the argument that a statute making it a crime for
anybody to have sex with a person age 16 or 17
who is not married to that person violates the
constitutional requirement of equal protection
of the laws. Ruling in State of Wisconsin v. Pryes,
2009 WL 1606746 (June 10, 2009) (not officially published), the court upheld the refusal
by Circuit Judge Patrick L. Willis of the Manitowoc County Circuit Court to dismiss charges
against Dennis S. Pryes, who was charged with
violating the statute by having sex with an unmarried 16–year-old woman.
Wis. Stat. Sec. 948.09 provides: “Whoever
has sexual intercourse with a child who is not
the defendant’s spouse and who has attained
the age of 16 years is guilty of a Class A misdemeanor.” The word “child” is defined in
948.01 as “a person who has not attained the
age of 18 years.” Children who are age 16 or 17
can married in Wisconsin with parental consent. Pryes, then 51, was charged with having
sex with a 16 year old. He moved to dismiss the
charges, claiming a violation of due process
and equal protection, arguing that the state had
no rational basis for allowing some 16 year olds
to have sex but forbidding it for others.
The court agreed with the trial judge that the
distinctions drawn by the statute are rational.
The court focused its attention primarily on the
equal protection challenge, pointing out that
this case did not involve any suspect classification, and thus the state could impose differential treatment if there was any rational justification for it.
“ While Pryes complains that Wis. Stat. Sec.
948.09 classifies married persons differently
than unmarried persons, there is a rational basis for that distinction,” wrote Judge Lisa S.
Neubauer for the court. “The purpose of sec.
948.09 is clear: to protect minors between the
age of sixteen and eighteen from the consequences of sexual intercourse. Pursuant to Wis.
Stat. Sec. 765.02, a person between the age sixteen and eighteen may marry with parental or
custodial permission. Therefore the minor is
not without protection or guidance in making
his or her decision to marry. While Pryes is correct that once married, the State is no longer
able to initiate charges on the minor’s behalf
under sec. 948.09, this is precisely the type of
balancing we expect from the legislature.”
As the court sees it, the legislature can decide that in general people within that age
range do not yet have the maturity to make for
themselves the decision to engage in sexual intercourse, which may lead to pregnancy outside
marriage, sexually transmitted diseases, or
140
other complications. By exempting married
persons from this prohibition, the state is counting on their parents or guardians to make a
judgment about their maturity that will serve
the state’s protective purpose. “Many of the significant interests of the state are addressed
when a minor has obtained permission to marry
— most obviously the lack of considered consent, heightened vulnerability to physical and
psychological harm, the lack of mature judgment, the potential for sexual exploitation and
the potential for a minor bearing a child outside
of a marital relationships,” wrote Judge Neubauer. “Wisconsin Stat. Sec. 948.090 reflects
the legislature’s judgment that absent the assurance of parental guidance and considered
consent involved in the marriage of a minor, the
state is justified in continuing to protect the minor until age eighteen.”
The court rejected Pryes’ invocation of cases
— primarily due process cases — from other
jurisdictions sustaining challenges to criminalization of consensual sex, pointing out that
those cases were all distinguishable. And the
court found that any due process concerns
raised by the statute were satisfied by the legislature’s legitimate objective to protect teenagers from the consequences of sexual activity
prior to the state’s 18 year old age of consent.
The court designated this as an unpublished
decision. A.S.L.
New York Same-Sex Marriage Bill Picks Up More
Support but Senate Consideration Stymied By
Political Warfare
The New York State Bar Association’s House of
Delegates, meeting in Cooperstown, New York,
on June 20, acted by voice vote to rescind a
prior resolution supporting legislation to extend
legal recognition to same-sex partners, and replaced it with a resolution calling for the legislature to pass a bill allowing same-sex couples
to marry. The new resolution was grounded in a
new report by the State Bar’s Special Committee on LGBT People and the Law, which concluded that “should New York wish to create
equality between same-sex and opposite-sex
couples, it has no choice but to reject the
second-class model of civil unions and to endorse full marriage equality.” The State Bar’s
action came a month after the New York State
Assembly voted 89–52 in support of the marriage bill on May 12. New York Law Journal,
June 23, 2009.
There were high hopes of subsequent enactment by the Senate, where the Democrats won a
slim majority in last November’s election, and
lead sponsor Tom Duane, a Manhattan Democrat, claimed that he had commitments from
enough Republican Senators to ensure passage
despite the loss of some of the Democrats. However, on June 8 the Republicans engineered a
coup by luring two renegade Democrats to sup-
Summer 2009
port a Republican resolution to change the
leadership of the body, placing one of the
Democrats, Pedro Espada, Jr., into the position
of President Pro Tem. (The position of President
of the Senate is vacant due to the elevation of
former Lt.-Governor David Paterson to the governorship upon the resignation of his predecessor, Elliott Spitzer, in disgrace.)
Shortly thereafter, the other renegade Democrat, Hiram Monserrate, changed his mind and
resumed caucusing with the Democrats, resulting in a 31–31 split in the Senate and a prolonged controversy that prevented the Senate
from transacting business due to the intransigence of both parties in attempts to negotiate a
power-sharing arrangement. The matter was finally resolved on July 9 when Sen. Espada announced he was returning to the Democratic
side as part of an agreement making him Majority Leader and designating Sen. Malcolm Smith
as President Pro Tem. The Senate resumed acting on legislation during the evening of July 9
blending over into the wee hours of July 10,
then recessed for a long weekend. On July 10,
the governor’s office announced that action on
the marriage bill would be deferred to September, when the governor intended to call a special session of the legislature to deal with a wide
range of unfinished business. A.S.L.
Federal Civil Litigation Notes
Supreme Court — On June 8, the Supreme
Court denied certiorari in Pietrangelo v. Gates,
No. 08–824, 2009 WL 1576585, which challenged the constitutionality of the military
“don’t ask, don’t tell” policy. The petition was
filed by James E. Pietrangelo, II, a military veteran who had been one of the plaintiffs in Cook
v. Gates, 528 F.3d 42 (1st Cir. 2008), in which
the court of appeals ruled that the DADT policy
survived heightened scrutiny under the 5th
Amendment as a matter of law in light of the
substantial legislative hearing record that Congress purportedly relied upon in enacting the
policy. The other plaintiffs in Cook had opposed
the filing of the certiorari petition. The Justice
Department’s brief opposing certiorari asserted
that the military policy is constitutional, to the
surprise and consternation of many who had
thought that the President’s stated opposition to
the policy would have precluded taking the position that it was a rational policy, but the Office
of the Solicitor General is known for taking legal positions that may appear inconsistent with
the political positions of the President.
Supreme Court — On June 29, the Supreme
Court denied certiorari in Truth v. Kent School
District, 551 F.3d 850 (9th Cir. 2008), cert. denied, 2009 WL 1023791, a culture wars case
involving the refusal of the school to grant official recognition to a Bible study group that excluded from membership all who did not affirm
certain religious beliefs, including condemna-
Lesbian/Gay Law Notes
tion of homosexuality. The 9th Circuit upheld
the school’s position, and the case has been
cited in subsequent litigation involving refusals
by law schools to recognize a local chapter of
the Christian Legal Society on similar grounds.
Certiorari was denied without any comment
from the Court. The case had been closely
watched, because the circuits have been split
over how to handle the issue of public universities denying recognition to so-called “Christian” student groups due to their exclusionary
membership policies.
Supreme Court — On June 29, the Court also
denied certiorari in Nixon v. Phelps-Roper, No.
08–1244, in which the state of Missouri was
seeking review of the 8th Circuit’s decision in
Phelps-Roper v. Nixon, 545 F.3d 685 (2008),
which had reversed the denial of injunctive relief to representatives of the Westboro Baptist
Church who wished to demonstrate at military
funerals in violation of a Missouri statute. The
8th Circuit found that the homophobic Phelps
family was likely to prevail on its 1st Amendment claim. They maintain a website called
GodHatesFags.com and delight on screaming
anti-gay epithets and holding up homophobic
signs during military funerals, to communicate
their deluded view that America’s soldiers are
dying because the country panders to homosexuals.
California — U.S. District Judge Christina
A. Snyder has ruled against an attempt by
American Airlines to remove a sexual orientation discrimination case brought by a gay California employee under the state’s Fair Employment and Housing Act (FEHA) to federal court
on diversity grounds. Suarez v. American Airlines, Inc., 2009 WL 1657444 (C.D.Cal., June
10, 2009). Suarez claimed that he was assaulted by a co-worker who verbally threatened
him and called him insulting names based on
his sexual orientation, as a result of which he
sustained injuries that required disability
leave. He approached his supervisor, Victor
Rendon, three months later, asking to resume
work, but Rendon refused to allow him to return
to work, ostensibly because he was till taking
medication that caused dizziness. Suarez
claims another employee told him that “neither
American nor Rendon wanted plaintiff to return
to work.” Suarez continued to contact American about returning to work, and inquired about
light duty to accommodate his physical problems, but was rebuffed. Suarez sued under the
FEHA in California state court, naming American and Rendon as defendants. The claim
against Rendon was for harassment in violation
of the FEHA. American sought to remove the
case to federal court on diversity grounds.
Suarez opposed removal, pointing out that he
and Rendon are both California residents, so
there would not be complete diversity between
plaintiff and defendants as required for removal. Judge Snyder agreed with Suarez, re-
Lesbian/Gay Law Notes
jecting American’s argument that the claim
against Rendon was a sham and that he was
joined as a defendant solely for purposes of
keeping the case in the state courts. (The unspoken subtext here is that the California state
courts are relatively gay-friendly while the federal courts are, by comparison, much less so.)
Snyder pointed out that California courts draw a
distinction between discrimination and harassment; supervisors exercising their supervisory
duties would subject the employer to liability,
but can incur personal liability under the
FEHA for actions that go beyond their purely
supervisory duties. Noting that there is a disposition against removal if it is possible that the
claim involving the non-diverse defendant can
succeed, Snyder found that it could not be said
on the basis of the pleadings that there is no
chance Suarez could hold Rendon liable in this
case, so the matter should be sent back to the
state courts.
District of Columbia — The federal government has not filed an appeal in Schroer v.
Billington, 577 F.Supp.2d 293 (D.D.C. 2008),
in which U.S. District Judge James Robertson
ruled that the Library of Congress had violated
the ban on sex discrimination in Title VII of the
Civil Rights Act of 1964 when it withdrew an
employment offer from Diane Schroer upon
learning about her imminent gender transition
plans. Judge Robertson followed precedents
from the 6th Circuit and other district courts accepting the argument that discrimination
against transgendered individuals for failing to
comply with stereotypes concerning gendered
appearance and presentation constitutes sex
discrimination in violation of federal law. Robertson subsequently ruled on April 28, 2009,
that Schroer was entitled to damages approaching half a million dollars, taking together compensation for lost wages and benefits and mental anguish stemming from the wrongful
withdrawal of employment. One of the Library’s
arguments in support of its withdrawal of the job
as a national security/terrorism specialist was
that Schroer’s gender transition would result in
the loss of military contacts necessary to perform the job. Ironically, since the offer was
withdrawn and Schroer completed her gender
transition, it was her continuing military contacts that brought her the work necessary to become a successful consultant on national security issues to government agencies. Schroer has
been represented by an ACLU LGBT Project
litigation team of James Esseks, Ken Choe and
Sharon McGowan. As the deadline for filing an
appeal approached, the Justice Department
signified that none would be filed and the government would comply with the ruling.
District of Columbia — In Doe v. Internal
Revenue Service, 2009 WL 1949119 (D.D.C.,
July 8, 2009), U.S. District Judge Paul L. Friedman ruled that an IRS employee’s rights under
the Privacy Act were not violated when another
Summer 2009
employee of the agency allegedly told the
Washington Blade, a gay weekly newspaper,
that the plaintiff had discriminated against a
gay applicant for employment at the agency,
had used an anti-gay epithet in referring to the
applicants, and had been subjected to discipline — inadequate discipline, in the other
employee’s opinion — for her conduct. Under
the terms of settlement of the disciplinary proceeding against her, Doe had secured a promise
from the agency that its press release about the
case would not identify her and that the settlement would be confidential. Judge Friedman
notes that the Privacy Act is not violated by
every disclosure, but relates specifically to
maintaining the confidentiality of federal employee files. Since the co-worker who spoke to
the Washington Blade did not obtain any information from Doe’s personnel file but had figured out what had happened based on the
agency press release and his personal knowledge of the incident, and that he was not speaking on behalf of the agency, the agency could
not be held liable under the Privacy Act for the
disclosure of this information and its publication in the Blade.
5th Circuit — The 5th Circuit upheld a decision denying refuse in the United States to a gay
man from Tunisia. Yacoubi v. Holder, 2009 WL
1759675 (June 23, 2009) (not officially published). Yacoubi had not filed his asylum petition within a year of entering the United States,
so his eligibility for potential relief was limited
to withholding of removal on a showing of likely
persecution or relief under the Convention
Against Torture. The court found that he had
failed to prove eligibility for either of those. Although he presented evidence of having once
been beaten by police officers and being the
subject of rock-throwing by members of his
mosque and name-calling by teachers and
fellow-students, the court found no evidence
that he had ever been arrested, much less convicted of any homosexual offense, “or that the
Tunisian government had any persistent or continuing interest in him.” The court also noted
that after these incidents he had remained in
Tunisia for almost a year without any further
problem before coming to the U.S. “The facts
here are not sufficient to compel support for Yacoubi’s position that he suffered past persecution,” the court opined. In addition, it found no
evidence in the hearing record that would support a claim that Yacoubi would be persecuted
or tortured by the government if returned to Tunisia.
6th Circuit — In King v. Holder, 2009 WL
1853753 (June 29, 2009)(not officially published), the court upheld the Board of Immigration Appeals decision that the petitioner, a
Mexican woman, had entered into a sham marriage with a gay American man in order to try to
stay in the United States. The man and his
same-sex partner both testified, indicating that
141
the man did this as a favor to a good friend who
was physically challenged and was employing
the petitioner’s mother as a home caretaker.
The hope was that if petitioner became a citizen, she could sponsor her mother, who would
then be able to remain in the U.S. and continue
caring for the man’s friend. This will not fly!
9th Circuit — California — The city of San
Francisco did not violate the 1st Amendment
when the city council passed a resolution calling on the local Catholic Archdiocese to reject a
command from Rome to refuse to place children through its adoption service with samesex couples. Catholic League for Religious and
Civil Rights v. City and County of San Francisco, 567 F.3d 595 (June 3, 2009). The court
noted the similarity of this controversy to that
dealt with in American Family Association v.
City and County of San Francisco, 277 F.3d
1114 (9th Cir. 2002), where the court had rejected a 1st Amendment challenge to a city
council resolution that called upon those with
anti-gay religious views to cease opposing tolerance and non-discrimination for gay people.
The court rejected the notion that passing such
a resolution was tantamount to government taking sides on matters of religious doctrine;
rather, it was government seeking to assert the
primacy in the civil sphere of its policy barring
discrimination based on sexual orientation.
10th Circuit — Oklahoma — Same-sex
marriage, who ya gonna sue? Two lesbian couples sued the governor and attorney general of
Oklahoma and the president and attorney general of the United States in pursuit of same-sex
marriage and its rights and benefits in Bishop v.
Oklahoma, 2009 WL 1566802 (10th Cir., June
5, 2009) (not officially published). One couple
had a Vermont Civil Union and a Vancouver,
Canada, wedding, and want to be recognized by
Oklahoma and the United States and receive all
the rights and benefits of marriage. The other
couple has had a commitment ceremony in
Oklahoma and wants to marry. They seek invalidation of an Oklahoma anti-marriage constitutional amendment, and the federal Defense
of Marriage Act. Sorting through their claims,
the district court decided that neither couple
can seek invalidation of Section 2 of DOMA
due to lack of standing, but that the couple married in Vancouver can maintain a claim against
Section 3 of DOMA.
California — District Judge Virginia A. Phillips (C.D.Calif.) ruled on June 9 in Log Cabin
Republicans v. United States of America, Case
No. CV 04–8425–VAP, that the government
was not entitled to dismissal of the gay Republican organization’s suit seeking a declaratory
judgment that the military “don’t ask, don’t
tell” policy violates the due process and free
speech rights of gay military personnel. The
government’s motion has been pending since
June 2006. Judge Phillips held off deciding it
pending some resolution of the Witt case by the
142
9th Circuit Court of Appeals. Now that a panel
has remanded Witt for trial, holding that government policies burdening gay people because of their propensity to engage in homosexual conduct are subjected to heightened
scrutiny as a consequence of the Supreme
Court’s ruling in Lawrence v. Texas, Judge Phillips reasons that it would be inappropriate to
dismiss LCR’s due process claim. However,
noting that the Witt panel had rejected an equal
protection claim, adhering to circuit precedent
that there is no heightened scrutiny of gay equal
protection claims, she granted the government’s motion to dismiss on the equal protection challenge. However, she allowed some of
the 1st Amendment claim to continue. While
noting that there is plenty of authority holding
that it does not violate the 1st Amendment for
the government to use a person’s speech as evidence of status or intended conduct, she found,
there remains a constitutional question
whether the government can make speech a
dischargeable offense on its own, as the policy
seems to do. The most significant aspect of the
decision was Judge Phillips’ rejection of the
government’s argument that the Witt” ruling
concerned an as-applied challenge to the law,
and thus did not provide precedent for allowing
a facial challenge to proceed. She held that
nothing in Witt ruling out a facial challenge or
suggested that a lesser standard than heightened scrutiny would apply to it.
California — There are numerous press reports that Immigration Judge Loreto Geisse issued an affirmative ruling on May 21, 2009, on
an asylum petition on behalf of Philip Belarmino, a 43–year-old gay man from the Philippines who was facing deportation from the
United States. According to news reports, Belarmino was an English professor in the Philippines who arrived in the U.S. in 2005 on a visitor’s visa and overstayed. His mother and sister,
to whom he was not “out” prior to this proceeding, live in the U.S. Belarmino desired to stay in
the U.S. with his family, and sought representation from Ted Laguatan, an immigration law
specialist in Daly City. Belarmino testified at
the hearing about being sexually assaulted as a
child by older boys, and threatened with a
knife. He testified that he never revealed these
incidents to his parents because he was afraid
to come out as gay in a repressive culture. He
also said he was afraid to go to the police because of their reputation for corruption. According to news reports, Judge Geisse decided
that the evidence of past persecution and continuing evidence of police corruption in the
Philippines lent credence to Belarmino’s contention that he would be subject to persecution
if he were deported to the Philippines. This is
an unusual ruling. In contested cases that have
worked their way to the circuit courts, petitioners from the Philippines have been notably unsuccessful in persuading the BIA and the cir-
Summer 2009
cuit courts that the situation for gay people in
the Philippines is so hostile as to justify refugee
status on the basis of sexual orientation; indeed, we recently reported on a 9th Circuit decision refusing to reverse a denial of refugee
status by the BIA to a gay Filipino. Then, again,
these cases turn heavily on the facts of the individual case, and a finding that an individual applicant has suffered persecution in the past
puts a burden on the government to prove that
the applicant’s continuing fear of persecution is
not reasonable. The government had 30 days to
appeal the decision, and we have seen no news
reports concerning an appeal. New America
Media, June 13, 2009; San Francisco Sentinel.com, May 27, 2009; San Jose Mercury
News, June 9, 2009.
District of Columbia — The D.C. Board of
Elections and Ethics ruled on June 15 against a
proposed referendum to overrule the city council’s vote to have D.C. recognized same-sex
marriages performed elsewhere. The city council’s vote was widely seen as preparatory to passage of a measure authorizing the performance
of same-sex marriages in the District, possibly
next year. Referendum proponents promptly
appealed the Board’s ruling to the D.C. Superior Court, which subsequently rejected the appeal, Jackson v. District of Columbia Board of
Elections and Ethics, Case No. 2009 CA
004350 B (June 30, 2009). Early in July the
D.C. ordinance went into effect, as there had
been no vote in either house of Congress to
overrule it. City Councilman David Catania announced his plans to introduce further legislation to authorize same-sex marriages to be performed in the District.
District of Columbia — Attorney Christopher
Nugent and his team of volunteer attorneys
from Holland & Knight LLP reported success
in winning lawful permanent residence for an
openly gay Mormon from Trinidad & Tobago,
who fled his home country after experiencing
years of sexual abuse by his uncle and a police
officer by becoming a Mormon and going on a
mission to the U.S. He married in the U.S., but
encountered spousal abuse, and finally came
out as gay. According to Nugent’s report, on
June 16, after several hours of testimony, an Immigration Judge granted the applicant “special
rule cancellation of removal” under the Violence Against Women Act, and the Department
of Homeland Security stipulated to the relief
and waived appeal. Nugent’s report on probono.net was picked up and redistributed to the
Immigration Law Professor listserve on July 7.
Florida — U.S. District Judge Marcia G.
Cooke has adopted the recommendation of
Magistrate Judge Patrick A. White to allow a
Florida state prison inmate to pursue a sexual
orientation discrimination claim against two
corrections officers under 42 USC sec. 1983.
Coon v. McNeil, 2009 WL 1515070 (S.D.Fla.,
June 1, 2009). The inmate sought to sue four
Lesbian/Gay Law Notes
employees of the prison, but two were dismissed from the case by the judge because
there was no indication they knew the plaintiff
was gay. Wrote Magistrate White, “The plaintiff
alleges that after he reported two inmates for
engaging in an income tax scam while he was
housed at ECI, Captain Colon placed him and
Inmate Garcia Hall in protective management.
The plaintiff alleges that Colon falsified a report
by claiming that the plaintiff requested protection from Hall, because Colon knew that he and
Hall were a homosexual couple. The plaintiff
claims that as a result of Colon’s violation of his
right to due process and equal protection, the
ICT Board placed a Special Review’ (a directive prohibiting placement of inmates in the
same housing unit) between Hall and the plaintiff. The plaintiff states that Colon was outwardly prejudiced against homosexual inmates.” Plaintiff made similar allegations
against Officer Tate. White concluded that an
allegation of sexual orientation discrimination
could state a constitutional claim, citing Romer
v. Evans, and recommended that the claim proceed against these officers in their individual
capacity.
Louisiana — Kristoffer Bonilla and John
Thomas Wray want to get married. They applied for a license at the Orleans Parish marriage license office on April 2, and were turned
away because they are both men. Bonilla, a law
school graduate who is not admitted to practice,
decided to file a federal lawsuit, seeking a declaration that he and his partner enjoy a fundamental right to a marriage license under the
U.S. Constitution and international law. Bonilla
told the New Orleans Times Picayune (June 30)
that he had drafted his federal court complaint
before the men applied for their license, anticipating the possibility of rejection. The complaint argues that the Louisiana marriage
amendment violates federal equal protection
and due process, and names as defendants
Brenda Hurst, director of the marriage license
office, Darlene Smith, the state registrar of vital
records, Alan Levine, the secretary of the Department of Health and Hospitals, and Attorney
General Buddy Caldwell. It is pending in U.S.
District Court. We have not heard anything
about big-shot lawyers from out-of-town clamoring to take on the case pro bono.... Perhaps
somebody can place a call to Ted Olson or
David Boies, since they’ve already done the
necessary legal research.
Tennessee — In Ellsworth v. Pot Luck Enterprises, Inc., 2009 WL 1579718 (M.D. Tenn.,
June 5, 2009), an African-American heterosexual man survived a motion to dismiss his Title
VII hostile environment claim, as District
Judge Aleta A. Trauger found that his allegations fit into a paradigm approved by the Supreme Court in Oncale v. Sundowner Offshore,
the famous same-sex harassment case. Ellsworth claimed that beginning soon after he
Lesbian/Gay Law Notes
started working for the defendant, three
openly-gay male employees began hitting on
him for sex, and they did not desist after he told
them that he was not gay and not interested.
Ellsworth alleges that he complained repeatedly to management about both sexually and
racially offensive comments by these men as
well as another African-American non-gay
male employee, who upset Ellsworth by frequently using the “n-word,” which Ellsworth
claims was used offensively by other employees
as well. The defendant argued that Ellsworth’s
claim was not actionable under 6th Circuit
precedent, because it was a sexual orientation
discrimination claim. Judge Trauger disagreed, finding that under Oncale a plaintiff
could prevail in a Title VII hostile environment
claim where it was shown that a gay harasser
was motivated by the sex of the victim. Here
there is no dispute by the company that the
three men who were harassing Ellsworth were
gay and presumably motivated by sexual interest in him. While finding that the allegations of
racial harassment were not sufficient to state a
cause of action, Judge Trauger evaluated them
cumulatively with the sexual harassment claim
in finding that the conduct described would be,
if proved, sufficiently severe and pervasive to
meet the test for liability under Title VII. She
also ruled that Ellsworth’s supplementary
breach of contract claim for non-payment of
commissions could continue to the extent it related to commissions earned prior to his resignation from the workplace.
Utah — In Thayer v. Utah, 2009 WL
1913264 (D. Utah, June 30, 2009), U.S. District Judge Dee Benson rejected an equal protection claim by a gay state prison inmate, who
asserted that he had been singled out for discipline due to his sexual orientation. According
to the factual recitation in the opinion, inmate
Thayer was wearing skimpy shorts in the yard
while another inmate was rubbing tanning lotion on his back. Corrections officers accused
him of inappropriate behavior, and he was subjected to a period of disciplinary isolation.
Judge Benson found that there was no basis for
his discrimination claim, in that no allegation
was made that heterosexual inmates engaging
in similar conduct would not have been subjected to the same discipline. Thayer claimed
that he was singled out as part of an investigation of homosexual behavior among the inmates. Judge Benson observed that in an allmale prison, by definition any investigation of
sexual activity among inmates would be looking at homosexual behavior, regardless of the
sexual orientation of the participants.
West Virginia — U.S. District Judge Frederick P. Stamp, Jr., accepted a report by a magistrate judge recommending that a transsexual
prison inmate be allowed to proceed with his
federal civil rights complaint against two correctional officers who allegedly subjected the
Summer 2009
inmate to sexual harassment. Jenkins v. North
Central Regional Jail, 2009 WL 1885984
(N.D.W.Va., June 30, 2009). Among other allegations, the plaintiff asserted that the defendants’ treatment of the prisoner in the presence
of other inmates had given them license to
touch her inappropriately. The magistrate
judge recommended dismissing the claim
against the jail as an entity and against prison
officials at a higher level, as to whom the complaint did not allege any personal involvement
in the harassment. A.S.L.
State Civil Litigation Notes
California — We’re having a difficult time figuring this one out. A press release from the Law
Offices of Waukeen Q. McCoy, who had represented one of the plaintiff groups in the California Marriage Cases, indicates that McCoy has
filed a new lawsuit in San Francisco Superior
Court on June 26, a class-action on behalf of
unmarried same-sex couples, seeking a ruling
that Article I, Section 7.5 of the California Constitution, limiting marriage to different-sex
couples, violates the Equal Protection Clause of
the California Constitution. We’re uncertain
how a later amendment to a state constitution
can violate a provision of that document, since,
by definition, an amendment is a change to the
document, but, to be sure, the California Supreme Court did not address this precise question in its recent ruling upholding Proposition
8, which was focused on whether the initiative
amendment had been enacted in compliance
with constitutional requirements for the enactment of such amendments. Burns v. State of
California, Case No. CGC–08–481908 (San
Francisco Superior Ct., filed June 26, 2009).
California — Sacramento County Superior
Court Judge Shelleyanne W. L. Chang issued a
tentative ruling on June 1 that a facial challenge to the constitutionality of a recent enactment banning discrimination on the basis of
gender identity in California schools should be
dismissed. California Education Committee
LLC
v.
O’Connell,
No.
34–2008–00026507–CU-CR-GDS (June 1,
2009). The plaintiffs, an organization, sought
declaratory and injunctive relief, claiming that
the law was vague and would subject students
to violation of their privacy rights when
“forced” to change clothes in locker rooms being used by students of the other sex. The
named defendant is the California Superintendent of Schools. In support of their complaint,
plaintiffs alleged that a male student identified
only by his initials had been “forced” to change
clothes in a locker room also being used by a female student who presented herself as male,
under the unnamed school district’s policy
adopted in compliance with the statute of allowing students to decide based on their gender
identity which locker room they would use. The
143
plaintiffs argued that using the term “gender
identity” introduced an unconstitutional ambiguity into the statute by leaving people to guess
at the gender identity of other people. Judge
Chang rejected the plaintiffs’ arguments, observing that gender identity discrimination
laws have been in effect in other jurisdictions
for several years without generating the problems imagined by the plaintiffs, and also noting
that they had failed to make any factual allegations that would justify imposing any legal obligations on the state schools superintendent.
She noted that an “as-applied” challenge to the
law could be filed against the school district in
question, not against the state superintendent.
Equality California and Gay-Straight Alliance
Network filed an amicus brief in support of the
defendants’ demurrer to the complaint.
Maine — The Maine Human Rights Commission ruled on June 29 that the Orono School
Department violated the right of a transgender
student by forbidding her from using the girls
restroom at her school. According to a report on
the case in the Bangor Daily News (July 1), discrimination first occurred in October 2007
when the child was in fifth grade. Up to that
time, she had used the girls room without incident. “But that fall,” the newspaper reports,
“the transgender child was followed into the
girls room by a male student who had previously started to harass her by stalking her and
calling her “faggot,”’ according to the Maine
Human Rights Commission investigator’s report.” When this problem recurred, the school
suspended the male student and ordered the
transgender student to use a single-stall faculty
restroom at the other end of the school from her
fifth grade classroom, and her parents complaints to the Commission. The Commission
faulted the school for taking its action without
consulting the child’s parents, opining that
there should have been consultation on a reasonable accommodation to her transgender
status.
New Jersey — Confronting an issue of first
impression, the New Jersey Appellate Division
ruled in Miken v. Hind, 2009 WL 1686728
(June 18, 2009) (not reported in A2d), that although irreconcilable differences was not a
ground specified in the state’s Domestic Partnership Act for dissolving a domestic partnership, the parties in this case had been separated for more than 18 months by the time the
matter came before the Appellate Division, so it
would affirm the trial court’s order dissolving
the domestic partnership on that ground. The
trial judge had imported the irreconcilable differences provision from the Divorce statute
over the objection of the defendant-appellant.
The plaintiff-appellee argued that because under Lewis v. Harris same-sex couples must be
given equal rights under state law with
opposite-sex couples, irreconcilable differences must be provided as a ground for dissolv-
144
ing a same-sex domestic partnership. The
court found it unnecessary to resolve this dispute, due to the length of the separation and the
undoubted authority to dissolve a domestic
partnership on that ground. The Appellate Division also approved the trial court’s disposition of assets, rejecting the plaintiff-appellee’s
argument as cross-appellant that she should
have been awarded part of her ex-partner’s inheritance from the ex-partner’s father. As this is
one of the few published appellate decisions
about dissolution of a domestic partnership, it
might make interesting reading for practitioners, but probably does not have much great
practical utility as the Civil Union Act has displaced the Domestic Partnership Act as the
main vehicle for same-sex couples seeking legal status in New Jersey, pending a vote that
may come after the November election on making same-sex marriage available in the state.
New York — N.Y. County Family Court
Judge Gerald Lebovits ruled on June 19 in
Christopher Realty LLC v. Miller, NYLJ,
7/1/2009, that a surviving same-sex partner of
a rent-stabilized tenant had standing to object
to the landlord’s subpoena of medical and social work records of the decedent in a case contesting the tenant’s succession rights to the
apartment lease. Judge Lebovits noted evidence that the two women had completed and
notarized documents for a New York City domestic partnership, but that the decedent’s illness had made it impossible for her to appear
personally as required by law to file the documents with the City Clerk. Nonetheless, he
held that the surviving partner should be able to
exercise the right of a spouse to object to the release of confidential medical records, although
he also found alternative theories to support
this theory. On the other hand, Judge Lebovits
held, as the defendant was not the legal spouse
of the decedent, her actions could not waive the
decedent’s confidentiality rights in those records, as well as the records maintained by decedent’s social worker.
New York — The Appellate Division, First
Department, has ruled that a newspaper report
that the plaintiff in a sexual exploitation lawsuit
was a transsexual whose myspace.com page recounted fantasies of having sex with large numbers of men and women could not be sued for libel. Ava v. NYP Holdings, Inc., 2009 WL
1885099, 2009 N.Y. Slip Op. 05611 (July 2,
2009). In this defamation suit against the New
York Post, plaintiff, who claimed the myspace
page was fake, alleged that she had been defamed in that readers could conclude that she
was being called a promiscuous slut by the
Post. The defendant newspaper argued that it
was merely accurately reporting the fantasy
musings recounted on what appeared to be her
myspace page. The trial court, while disposing
of other aspects of the case, had refused to dismiss the libel claim, but the Appellate Division
Summer 2009
reversed, finding that although some readers
might draw conclusions about the plaintiff’s
character from the report, the average reader
would not. “At bottom, plaintiff’s claim of defamation rests on the contention that the average
reader reasonably would infer that someone
with such a lewd fantasy also is in fact sexually
promiscuous. That some readers might draw
this inference does not render it reasonable. In
light of the context in which the allegedly defamatory words appeared, those words, as a
matter of law, are not reasonably susceptible of
a defamatory connotation,” wrote the court.
New York — Pleading problem? In Matz v.
Prospect Energy Corp., 2009 WL 1851383
(App.Div., 1st Dep’t., June 30, 2009), the court
upheld Justice Herman Cahn’s dismissal of a
sexual orientation discrimination complaint.
Howard Matz alleged that he had applied for a
job with the defendant, but was then refused
employment after a reference check turned up
the fact that he was gay. Defendant said they
had given Matz a try-out by assigning certain
projects, developed concerns based on his performance about his skills and rejected his “aggressive style and attempts to accelerate the
hiring process.” The court found that under
these circumstances Matz had not alleged facts
from which an inference of discriminatory intent could be drawn. The appellate panel’s
brief order is puzzling on its face, inadequately
explaining why the coincidence of refusal to
hire after learning the applicant’s sexual orientation would not be sufficient to state a prima
facie case.
New York — In Bumpus v. New York City
Transit Authority, 2009 WL 1959484
(N.Y.App.Div., 2nd Dept., July 7, 2009), the
transsexual plaintiff claims to have been dealt
with in a discriminatory manner by a Transit
Authority employee while using TA facilities.
She filed a claim in Supreme Court against the
TA and the employee, but since she did not
know the employee’s name, the claim was
against “Jane Doe.” Under New York law, the
individual defendant must be served within
120 days of filing, but the TA was not responsive to requests for information about the employee’s name and address; at some point, they
gave up the name but would not give out the
home address, and ultimately counsel for Bumpus was able to negotiate to get the employee’s
work station, so she could be served with process there, but service was long beyond the 120
day limit in the statute. The employee moved to
dismiss for tardy service, but the trial judge
held that adequate diligence had been exercise
to earn an extension. The Appellate Division
affirmed on an alternative theory, finding in
adequate evidence in the record to make the
due diligence finding, but determining that an
extension in the interest of justice would be
merited under these circumstances. LeGaL
Lesbian/Gay Law Notes
member and past president Robert Bacigalupi
represents plaintiff Bumpus. A.S.L.
Criminal Litigation Notes
Florida — in U.S. v. Wilk, 2009 WL 1842523
(June 29, 2009), the U.S. Court of Appeals for
the 11th Circuit upheld the conviction of Kenneth Wilk on charges of killing a state law enforcement officer assisting in a federal investigation as well as possession of child
pornography and other assorted charges.
Wilk’s domestic partner, Kelly Ray Jones, had
been convicted on child pornography charges,
and during the pending of Jones’s prosecution,
Wilk made threats against law enforcement
personnel and apparently participated in a
scheme to attempt to intimidate witnesses
against Jones. In a confrontation with law enforcement officials sent to his home to enforce
search warrants, Wilk shot and killed one of the
officials. Wilk raised a variety of arguments on
appeal, none of which cut any ice with the circuit court.
Massachusetts — We reported last month
that the Massachusetts Appeals Court had
ruled in Commonwealth v. Baran, 74
Mass.App.Ct. 256, 905 N.E.2d 1122(May 15,
2009), that a trial judge had not abused his discretion in setting aside the guilty verdict entered almost a quarter century ago against Bernard Baran, a gay man who was falsely accused
of molesting children at a day care center where
he worked in Western Massachusetts. Baran
was the first to be convicted in a wave of sex
panic cases that swept the country in the
mid–1980s based on bizarre stories that day
care workers were involving children in sexual
orgies and bizarre satanic rituals. The Appeals
Court suggested that not only had Baran received incompetent representation, but that
there may have been prosecutorial misconduct
involved in the case as well. In addition, the
appeals court ruled that the exclusion of the
public from the courtroom during the testimony
by the young children had violated Baran’s
right to a public trial, which alone would have
sustained the decision to vacate the verdict.
The Berkshire County District Attorney, David
F. Capeless, who had appealed the trial court’s
ruling, announced on June 9 that he would not
attempt to appeal to the Supreme Judicial Court
or to retry Baran, who was released from prison
on close supervision after the trial court had vacated his conviction. Thus, after more than two
decades in prison, Baran, who has been living
in Boston, is finally free. Berkshire Eagle, June
9, 2009 (online edition).
Massachusetts — In Commonwealth v.
Yong, 2009 WL 1794705 (June 25, 2009) (unpublished disposition), the Massachusetts Appeals Court sustained a conviction on charges
of criminal harassment against the defendant
for leaving homophobic and threatening notes
Lesbian/Gay Law Notes
for a gay neighbor after an argument for snow
removal had escalated. The court found that
“the jury were warranted in finding that each of
the letters and note containing derogatory and
hateful messages were sufficient to generate in
a reasonable person “substantial emotional
distress”’” However, the court reversed a conviction relating to the victim’s same-sex partner, finding that all of the defendant’s abuse
had been directed to the victim, with whom he
had the original snow removal dispute, and not
to the victim’s partner.
New York — Gay City News reported that
New York Supreme Court Justice Niel J. Firetog
sentenced Omar Willock, 19, to 23 years in the
stabbing murder of Roberto Duncancson, a gay
man. The July 6 sentencing in Brooklyn Supreme Court followed on a March 18 seconddegree murder verdict. According to evidence
presented to the jury. Willock and Duncanson
encountered each other early on a May morning
in 2007 in Crown Heights. Willock called
Duncanson a “faggot” and accused him of
looking at Willock, the men exchanged taunts,
Duncanson walked away, Willock followed and
stabbed Duncanson four times in the back. The
stabbing was caught on a video surveillance
camera. At trial, Willock’s defense was mistaken identity, based on his having a twin
brother… A.S.L.
Legislative Notes
Federal — A change is noted on pending legislation to replace the U.S. military’s “don’t ask
don’t tell” policy with a policy banning sexual
orientation discrimination, the Military Readiness Enhancement Act, H.R. 1283. The original lead sponsor on this year’s version of the
bill, U.S. Rep. Ellen Tauscher (D.-Calif), has
resigned from the House to take a position in
the Obama Administration, and leadership on
the bill has been reassigned to Rep. Patrick
Murphy, a Pennsylvnia Democrat who is a combat veteran of the war in Iraq and an ardent advocate of repealing the gay ban. “It is vital to
our national security,” he told the Chicago Tribune on July 1. “We have troops that are fighting
in two wars and we need every qualified, ablebodied individual.” According to the latest
news reports, there are about 150 House cosponsors of the bill, and it is deemed likely to
pass in that chamber, but its chances in the
Senate, where Ted Kennedy is the lead sponsor,
are deemed much less certain. On July 8, Rep.
Murphy and the Servicemembers Legal Defense Network held an event at the National
Press Club to promote the bill, which drew substantial media attention. However, news reports suggested that the House leadership was
not intending to take the matter up until next
year. Perhaps sufficient public pressure can
accelerate that schedule, as the attention of the
media has been significantly engaged, and
Summer 2009
mainstream reporters have begun to question
Pentagon officials at every public information
opportunity about what is being done towards
getting rid of the ban.
Federal — The Subcommittee on Federal
Workforce of the House Committee on Oversight and Government Reform held a hearing
on July 8 on H.R. 2517, a bill sponsored by
Rep. Tammy Baldwin to authorize extension of
benefits to same-sex domestic partners of federal employees. John Berry, the Director of the
U.S. Office of Personnel Management provided
testimony in support of the legislation on behalf
of the Obama Administration. The President
had specifically endorsed the bill at his Gay
Pride Month Reception at the White House on
June 29, but Director Berry pointed out various
adjustments that would have to be made to the
bill as introduced in order for it to be fully effective in providing benefits equality to LGBT federal employees. Another technical problem
noted by Subcommittee Chair Stephen Lynch
(D-Mass.), is that the bill provides that domestic partnership benefits will not be available to
married couples. Since three states presently
allow same-sex couples to marry, and recent
legislation will expand that to several more
states over the next few months, there is a question how same-sex marriages from those states
will be dealt with. Ranking Republican member of the committee, Jason Chaffetz (R-Utah),
an ardent opponent of gay rights, announced
his opposition to the measure, claiming it would
blur the lines between “traditional marriage”
and other relationships and would lend itself to
fraud on the U.S. Treasury. Rep. Baldwin, who
testified on the bill, pointed out that it provides
for significant criminal penalties for fraudulent
benefit claims. BNA Daily Labor Report, 130
DLR A–7 (July 10, 2009).
California — Following up on the California
Supreme Court’s ruling in May upholding
Proposition 8, California State Senator Mark
Leno has introduced SB 54, legislation to codify and clarify the court’s ruling in various respects. For one thing, the court ruled that
same-sex couples are entitled to all the rights of
marriage, just not the name of marriage as a result of Prop 8, and the legislation seeks to lock
in that understanding by providing that samesex couples who married anywhere in the world
will have their legal status recognized in California, even though they cannot be considered
married there if their marriage took place after
November 5. The bill also seeks to answer the
question expressly left open by the court, by
finding that marriages contracted outside by
the state prior to November 5 will be recognized
as marriages by California, similarly to those
contracted within the state prior to November 5.
Leno was hopeful that the bill would pass
through both houses of the legislature and be
placed before the governor by the end of the
summer.
145
Florida — Miami — The City of Miami
Commission voted unanimously on June 11 to
adopt a Domestic Partnership Ordinance,
which will allow the City of Miami to offer
health benefits to domestic partners and their
children of city employees. This is similar to an
ordinance that has been adopted by the City of
Miami Beach and the City of North Miami.
Miami-Dade County has a similar ordinance in
place that was enacted in May 2008.
Hawaii — The University of Hawaii’s
Board of Regents voted to amend the university’s non-discrimination policy to add “gender
identity and expression” to the prohibited
grounds for discrimination in the institution.
According to a July 1 news report in US Federal
News online, this makes UH one of more than
260 colleges and universities that have now included protection for transgender students and
staff in their official non-discrimination policies.
North Carolina — On June 30, Governor
Bev Perdue signed into law Session Law
2009–212, which adds a new Article 29B, titled “School Violence Prevention,” to Subchapter VI of Chapter 115C of N.C. General
Statutes. The measure outlaws subjecting students or school employees to “bullying or harassing behavior” by other school employees or
students. Such behavior is defined as including, but not limited to, “acts reasonably perceived as being motivated by any actual or perceived differentiating characteristic, such as
race, color, religion, ancestry, national origin,
gender, socioeconomic status, academic status,
gender identity, physical appearance, sexual
orientation, or mental, physical, developmental, or sensory disability, or by association with
a person who has or is perceived to have one or
more of these characteristics.” In a state that
has refused to ban discrimination based on sexual orientation or gender identity more generally, the enactment of this measure is a major
legislative breakthrough that has given hope for
future accomplishment to LGBT rights advocates in North Carolina. The measure barely
passed the legislature, due to fierce opposition
from conservatives over the inclusion of gender
identity and sexual orientation, but was
promptly signed into law by the governor.
Allegheny County, Pennsylvania — The
County Council voted on July 1 to enact an ordinance banning sexual orientation discrimination in employment and housing in the county.
The measure includes a broad exemption from
the employment protections for religious,
charitable and fraternal organizations.. The
vote was 8–6.Associated Press, July 1.
West Bend, Wisconsin — The West Bend Library Board voted unanimously on June 2 to reject a demand by a sexphobic couple (backed
up by about 700 petition signatures) to ban
various sexually-oriented books from the young
adult shelves of the public library. The censori-
146
ous couple, Ginny and Him Maziarka, wanted
any books describing teen sexuality or homosexuality to be sent to a reserve section where
they could not be checked out without parental
approval. Another West Bend resident, Maria
Hanrahan, started a free speech group to oppose the Maziarka’s demands, and obtained
more than 1,000 signatures on her petition.
The board held an open meeting that drew several hundred spectators/participants, but when
all was said and done decided in favor of the
status quo, which leaves the books on open
shelves in the young adult section of the library.
Milwaukee Journal Sentinel, June 3. A.S.L.
Law & Society Notes
Federal — As part of gay pride observances at
the Office of Personnel Management, the office’s openly gay director, John Berry, issued a
letter and award to Dr. Frank Kameny, now retired, who sued the U.S. Civil Service Commission in 1957 when he was discharged pursuant
to a federal policy forbidding the employment
of “homosexuals” in the executive branch. The
letter referred to Kameny’s discharge as a
“shameful action,” and hailed him as a pioneer
of the gay rights movement. Kameny was also
front and center at the ceremony during which
President Obama signed his Memorandum extending various benefits to same-sex partners
of federal employees.
Indiana — South Bend Mayor Stephen J.
Luecke, a Democrat, issued an executive order
on June 18 banning employment discrimination on the basis of sexual orientation or gender
identity in the city government. The order applies both to current employees and job applicants. Luecke has been mayor for twelve years,
but this is the first executive order he has issued, according to a statement posted on his
website. Complaints of discrimination are to be
submitted to the city’s Division of Human Resources, which is charged with investigating
and attempting to resolve complaints. Indiana
state law does not address the issues of sexual
orientation and gender identity discrimination.
BNA Daily Labor Report, 130 DLR A–16 (July
10, 2009).
Maine — Opponents of the recently enacted
statute authorizing marriage for same-sex couples have claimed on July 8 that they had
quickly collected the number of signatures
needed to place a repeal initiative on the November 2009 ballot, which would prevent the
law from going into effect pending the vote. At
press time, there had not been any announcement whether state authorities had validated
agreed that the requisite valid signatures were
collected. The claim by Stand for Maine Marriage to have collected over 55,000 signatures
in just four weeks was aired on the website of
WCSH6.com, a local news outlet in Portland,
Maine.
Summer 2009
El Paso, Texas — A police incident at Chico’s Tacos restaurant on June 29 has blown up
into a city-wide debate on gay rights. When two
men in a group of gay customers kissed each
other, a contract security guard at the restaurant
moved in and told them in Spanish that “gay
things” are not permitted in the restaurant.
Somebody from the restaurant called the police. A police officer arrived on the scene, told
them it was illegal to kiss in public, and referenced the Texas sodomy law. (This is, of course,
absurd. The sodomy law, which was declared
unconstitutional in 2003 in Lawrence v. Texas
inasmuch as it imposed criminal penalties for
consensual private anal or oral sex between
persons of the same sex, has never had anything
to do with kissing. The police officer was betraying gross ignorance.) The police officer
also stated that the restaurant was free to deny
service to anybody, another incorrect statement, since the city has an ordinance outlawing
discrimination in places of public accommodation on the basis of sexual orientation. The ensuing media blow-up has greatly embarrassed
the police department, which has clearly failed
to provide proper instruction to police officers,
and has stimulated public conversation about
the legal rights of gay citizens in the city. A civil
liberties lawyer has consulted with one of the
customers from the restaurant about a possible
civil rights action. El Paso Times, July 10,
2009.
Fort Worth, Texas — An “inspection” action
by agents of the Texas Alcohol Beverage Control Commission and the Ft. Worth Police Department at a new gay bar, Rainbow Lounge,
backfired badly when the agents arrested and
roughed up some bar patrons, sending at least
one, Chad Gibson, to the hospital with serious
injuries, during gay pride week festivities
marking the 40th Anniversary of Stonewall.
The incident was followed up with substantial
“he said, she said” arguments in the blogosphere and the press, with many characterizing the event as an old-fashioned anti-gay bar
raid reminiscent of the events that gave rise to
the Stonewall Riots. Defenders of Ft. Worth
sprang up to argue that it was a gay-friendly city
and that the event was an aberration. The police chief, Jeff Halstead, at first tried to palm off
responsibility on the state commission agents,
and announced that the police department
would not conduct any more joint operations
with TABC until matters were sorted out, but
then indicated he had begun an internal investigation. He also offered to meet with gay community leaders and conduct sensitivity training
for his forces. Investigations were ongoing to
determine whether the officials who acted inappropriately during the incident were city or
state officials, and the Mayor, Mike Moncrief,
announced that the would ask the U.S. Attorney
to take a look at the result of the police department’s internal investigation. The TABC is
Lesbian/Gay Law Notes
conducting its own investigation after prompting by state legislators from Fort Worth. The
owner of the bar insisted that this was more
likely an alcohol licensing enforcement activity
than anything intended as anti-gay, and it’s
possible that overreaction by some bar patrons
to the presence of law enforcement exacerbated
the difficulties. The upshot may be better relations between the police and the gay community in the Texas city when everything gets
sorted out. Chief Halstead is new to the city
and had yet to establish a relationship with the
gay community.
Hate Slaying of Gay Sailor Suspected — On
June 30, military police discovered the bound
body Navy Seaman August Provost III at Marine Corps Base Camp Pendleton, north of San
Diego. Reports that Provost had complained of
various incidents of anti-gay harassment
against him led to suggestions that this was a
hate-related slaying. According to a newspaper
interview with a relative of Provost, he had been
shot several times, the body was bound and
gagged and partially burned. Military police
said they had a “person of interest” in custody
but charges were not immediately made, and it
seemed the military was poised to deny this was
a hate crime, but U.S. Rep. Bob Filner intervened on behalf of gay groups that were demanding an investigation into whether this
might be a hate crime. Associated Press, July 3.
Military Panel Recommends Discharging
Gay Linguist — On June 30, a four-member
Federal Recognition Board of Army officers
held a hearing on N.Y. National Guard Lt. Daniel Choi, who came out publicly on television,
putting a very visible face on the irrational
DADT policy. The Board voted, pursuant to the
policy, to recommend that Choi be discharged,
despite his superior qualifications and Arabic
linguistic skills, because the policy leaves no
wiggle room. Unless a person under investigation can demonstrate that they have no propensity to engage in homosexual activity with anyone at any time, they are subject to discharge.
The actual discharge can take a substantial period of time, because the Board’s recommendation must go through various procedural steps
and a decision on the method of discharge must
be formulated. In the meantime, Choi continues to serve as a lieutenant, giving the lie every
day to the Congressional so-called “finding”
that “homosexuality is incompatible with military service.”
Wyoming — The University of Wyoming
Board of Trustees voted 6–5 on May 30 to adopt
a voucher plan to provide health benefits for domestic partners of university employees. The
plan was adopted contingent on the university
president deciding that the university’s financial condition is robust enough to absorb the expense. The university has recently cut $18 million for its budget to accommodate state
requests for spending reductions. Some trus-
Lesbian/Gay Law Notes
tees who voted against the plan said their votes
were due to financial concerns rather than policy objections to providing the benefits. StarTribune, July 4. A.S.L.
International Notes
Coquille Tribe — Oregon — It was reported
that a lesbian couple were married on the Coquille Indiana Reservation in Coos Bay, Oregon, on May 24, after a new tribal law went into
effect allowing same-sex marriages. Kitzen
Branting and Jeni Branting were married in the
tribe’s meeting hall, according to a news report
by Rex Wocker. The state of Oregon will not
recognize the wedding, but it will be valid and
recognized on the Coquille Reservation. By
constitutional and treaty law, Indian tribes are
recognized in the United States as sovereign
nations with legislative authority in their reservations.
United Nations — The International Gay
and Lesbian Human Rights Commission reports that the United Nations Committee on
Economic, Social, and Cultural Rights has accepted a recommendation from IGLHRC, ARC
International and the International Gay and
Lesbian Association to include “sexual orientation” and “gender identity” as ground for protection from discrimination under international
treaty law.
Australia — Centerlink, the national government’s social benefits agency, announced
that it would begin treating same-sex couples
as spouses for benefits eligibility purposes beginning on July 1. Although Australia does not
have same-sex marriage, legislative initiatives
at the national and local level have accorded a
degree of recognition to same-sex relationships, and are cited as the basis for this new
policy, which will in some cases result in disqualifying gay people from receiving certain
benefits due to the cumulation of their incomes
with their same-sex partners putting them over
the thresshold, according to a news report by
Rex Wockner.
Brazil — The Evening Standard (Malaysia)
reported on July 5 that Brazil’s Attorney General, Deborah Duprat, intended to propose legislation to allow same-sex marriages in that
country. The brief article reported that Duprat
said she could see no reason to deny this right to
homosexuals.
France — President Nicolas Sarkozy has appointed Frederic Mitterand, an openly-gay TV
celebrity and writer and the nephew of the
former president, to be Culture Minister in the
French Government. According to news reports, Mitterand is a friend of the president’s
wife, Carla Bruni. Daily Telegraph (UK), June
25.
Ireland — The government has indicated
that it expects to have enacted and in place by
the end of the year a civil partnership bill giving
Summer 2009
statutory rights to same-sex couples. The proposed bill was published by the Justice Ministry on June 26. The bill will establish a civil
partnership registry and provide many of the
same rights accorded to married couples, including joint property ownership rights, pension rights, and equal treatment under tax and
welfare codes. The bill will also provide certain
protections for unregistered cohabiting samesex and different-sex couples, and protection
for a financially dependent person when a
long-term relationship ends. Irish Times, June
27.
Lithuania — President Valdas Adamkus
vetoed a bill that would ban any discussion of
homosexuality in the nation’s schools and
would censor all public references to gay and
lesbian relationships that might come to the attention of minors. The bill passed the legislature on June 16, and was vetoed the following
week. As we went to press, there was now word
on whether a legislative override would be attempted. It would require an absolute majority
of the elected delegates to the parliament. The
Advocate, July 1.
Spain — The Supreme Court ruled on May
30 that judges who are authorized to perform
marriage ceremonies may not refuse to perform
them for same-sex couples. The court specifically rejected an application for an exemption
from a judge from Valencia province who had
religious objections to performing such a ceremony, according to a news report by Rex Wockner.
United Kingdom — David Cameron, the
young socially progressive leader of the Conservative Party has taken the extraordinary step
of apologizing on behalf of his party for having
enacted the notorious Section 28 of the Local
Government Law during the Thatcher Administration. Section 28 threatened local government funding if any gay-related materials were
taught in the schools. Although nobody was
ever actually prosecuted under it, it was widely
held to have imposed a chilling effect on gayaffirmative school curricula. Cameron is making a bid to split the gay vote, seen as crucial in
Parliamentary elections which must occur by
next spring. At a Gay Pride Event sponsored by
the Conservative Party, Cameron also pledged
that if a Conservative government is elected,
they will do more for gay rights than Labour has
done, and he predicted that the first openly-gay
Prime Minister of the U.K. is likely to be gay. A
bit over-exuberant? Meanwhile, Prime Minister Gordon Brown was also hosting a Gay Pride
Event. Labour has traditionally been more receptive to gay rights claims than the Conservatives, and major progress was made during the
Blair Administration, including jettisoning
Section 28 and providing civil partnerships for
same-sex couples, while implementing European Human Rights directives to end the ban
on gay military service, recognize gender tran-
147
sition, and ban sexual orientation discrimination by employers and the government.
United Kingdom — The Charities Commission of England and Wales ruled in reliance on
the Equality Act (Sexual Orientation) Regulations 2007 that adoption agencies cannot discriminate against same-sex couples seeking to
adopt children. The June 2 ruling went against
Catholic Care Charity in Leeds, which sought to
deny services to same-sex couples, according
to a news report by Rex Wockner.
United Kingdom — The Home Office faces
a damages suit by John Bosco Nyombi, a gay
man from Uganda who was forcibly removed
from the U.K. while his asylum petition was
pending, whose removal was deemed “manifestly unlawful” by a High Court judge. According to an account of his ordeal published in
Independent on Sunday on May 31, Nyombia
eventually suffered imprisonment and assault
after he was turned over to Ugandan authorities
by the British police officers who accompanied
him on the plane, having been forcibly deported just days after a Ugandan newspaper
had published a story about his residence and
struggle for asylum in the U.K. Uganda is hostile ground for gay people, threatening severe
penalties for anybody in the country found to be
gay. A.S.L.
Professional Notes
The National Lesbian & Gay Law Association
has announced that its 2009 Allies for Justice
Award will be presented to Gary F. Kennedy,
Senior Vice President and General Counsel for
American Airlines. The award is made annual
to a strong advocate for LGBT rights from outside the LGBT community. The award recognizes the extraordinary diversity efforts made
by American Airlines’ Legal Department under
Mr. Kennedy’s leadership. The award is presented at a reception held during the Summer
meeting of the American Bar Association.
The National Lesbian & Gay Law Association has also announced that is 2009 Dan Bradley Award will go to Dr. Franklin Kameny, pioneering gay rights advocate who was the first
federal employee discharged for homosexuality
to fight back through the courts. Although Dr.
Kameny’s lawsuit was unsuccessful, his discharge from employment spurred him to become an aggressive advocate for LGBT rights
with the Mattachine Society during the crucial
pre-Stonewall Days when many of the roots for
the modern LGBT rights movement were first
planted. He has remained an activist and gadfly of the movement for more than half a century, and was recently honored by the federal
Office of Personnel Management with, among
other things, an official apology from the federal
government for his discriminatory discharge.
The Dan Bradley Award is normally presented
as part of the annual Lavender Law Conference,
148
which will be held this year in Brooklyn on September 10–12, 2009.
Illinois will be getting its first openly gay appellate judge, as Windy City Times reported on
June 24 that Sebastian Patti, a Cook County
Circuit Court judge, will be elevated to the Appellate Court of Illinois, First District. Judge
Patti will take his new position effective August
3.
California Governor Arnold Schwarzenegger
appointed openly gay attorney Ronald E. Albers to the San Francisco Superior Court. This
is reported by Bay Area Reporter (June 18) to be
Schwarzenegger’s first known appointment of
an openly-gay judge, a bit surprising inasmuch
as he has appointed openly gay people to several prominent positions in his administration,
including chief of staff. Albers has served as a
Superior Court Commissioner since 2002, and
was sworn in on the Superior Court on June 15.
He has been active in the LGBT rights movement, as a founder of San Francisco’s Bay Area
Lawyers for Individual Freedm (BALIF) and
the AIDS Legal Referral Panel, and is a leader
in the formation of the National Lgbt Law Association, of which he was founding co-chair. He
Summer 2009
has also served as vice president of the California State Bar.
The law firm of Fried, Frank, Harris, Shriver
& Jacobson sponsored a program open to law
students and lawyers to hear New York State
Assemblymembers Deborah Glick and Danny
O’Donnell speak about the battle for same-sex
marriage in New York. The event was held on
June 29, as an expansion on the firm’s usual
in-house lecture series for its staff on civil
rights issues. According to a July 2 report in the
New York Law Journal, the firm decided to use
the occasion to publicize its outreach to the
LGBT community. An affinity group within the
550 lawyer firm has about 15 active members.
Jarrett Barrios, an openly-gay former Massachusetts state legislator who has been working
as president of Blue Cross Blue Shield of Massachusetts, will become Executive Director of
the Gay and Lesbian Alliance Against Defamation on September 1. Barrios is a graduate of
Georgetown University Law School and Harvard College. His appointment to lead GLAAD
was reported in the New York Times on June 18.
Oregon Attorney General John Kroger announced on June 22 that there was no basis to
prosecute openly-gay Portland Mayor Sam Ad-
Lesbian/Gay Law Notes
ams in connection with the revelation of Adams’ past sexual relationships with Beau
Breedlove. A scandal had erupted when Adams confirmed rumors that he had engaged in a
sexual relationship with Breedlove, but denied
that there was any sexual contact before Breedlove turned 18, the age of consent in Oregon.
(The age is lower in several other jurisdictions.)
Breedlove, who is no longer involved with Adams, has capitalized on the resulting notoriety
by posing nude for a gay lifestyle magazine.
The July 1, 2009, issue of American Lawyer
includes a profile of Dennis Johnson, the
former Solicitor General of Iowa who argued the
Iowa same-sex marriage case to the state supreme court as a pro bono case on behalf of
Lambda Legal. Johnson, who is not gay, reported that Lambda’s call asking him to take
the case “came out of the blue” and surprised
him since he had never before done any gay
rights work. But Lambda attorneys give him a
large share of the credit for the victory, observing that his masterful and emotionally charged
oral argument seemed to have swayed the
Republican-dominated court into rendering a
unanimous opinion for same-sex marriage.
Good reading! A.S.L.
AIDS & RELATED LEGAL NOTES
Obama Administration Proposes End to HIV
Exclusion Under Immigration Law
The Department of Health and Human Services
published a proposal in the July 2 issue of the
Federal Register to remove HIV infection from
the regulatory definition of “communicable
disease of public health significance,” a term
used in U.S. immigration law as ground for excluding persons from entering the United
States. After Congress adopted this term as part
of an immigration law reform in 1990, it appeared at first that the Secretary of Health and
Human Services might not include HIV on the
list, so Senator Jesse Helms, the implacably
anti-gay North Carolinian, led the effort in Congress to enact an express ban on immigration of
persons living with HIV. Following this mandate, HIV infection was placed on the list. Last
summer, Congress repealed the statutory ban,
leaving it up to the Secretary of Health and Human Services to determine whether HIV should
remain on the list as a matter of administrative
judgment.
The Bush Administration dithered on the
matter until it expired on January 20. The incoming Obama Administration took some time
to get policy-level appointees approved through
the Senate confirmation process, then set to
work on researching grounds for ending the
HIV ban, and produced the lengthy document
published at 74 Fed. Reg. No. 126, pages
31797–31809 on July 2. The proposal is to
amend 42 CFR Part 34 to remove HIV infection
from the list. The rationale is that, unlike other
conditions listed, HIV is not casually contagious. Although of course HIV remains a medical condition of public health significance, says
HHS, due to its mode of transmission it does not
present the kind of risk to public health that
would justify making it a basis for exclusion.
The purpose of the exclusions is to prevent exotic illnesses and epidemics from being introduced into the United States, but HIV is already here with a vengeance and no useful
public health purpose is served by excluding
individuals on this basis. The major part of the
document is devoted to performing the required
cost/benefit analysis that must accompany any
proposed regulatory change under current law.
Under the process required to change published regulations, the proposal with a full explanation is published in the Federal Register a
period for public comment is announced. After
public comments have been submitted, the
agency can hold public hearings, and the comments submitted are supposed to be made
available for public inspection. After the
agency has had a chance to consider the comments, a final regulation will be published in
the Federal Register and appropriate modifications made in the Code of Federal Regulations.
The notice states that written comments must
be received by one or before August 17, 2009,
although comments received after that date
“will be considered to the extent possible.”
Written comments can be sent to: Division of
Global Migration and Quarantine, Centers for
Disease Control and Prevention, U.S. Department of Health and Human Services, Attn: Part
34 NPRM Comments, 1600 Clifton Road, N.E.,
MS E–03, Atlanta, Georgia 30333, or may be
submitted electronically in one of two ways: (1)
via email, to [email protected], or
through a federal website, http://regulations.gov. Once comments have been received,
they will be posted on line for public inspection
at http://www.cdc.gov//ncidod.dq. A.S.L.
Kansas Supreme Court Reverses HIV Exposure
Decision
The Kansas Supreme Court unanimously reversed the conviction of Robert W. Richardson,
II, who is living with HIV infection, for “exposing” two women to a “life-threatening disease,”
finding that the state had failed to present evidence that Richardson, who admitted having
sex with both women, had actually intended to
expose them to HIV infection. In his opinion for
the court, Justice Lee A. Johnson mentioned
that the state had “inexplicably” failed to introduce evidence at trial that could have provided
an evidentiary basis for Richardson’s conviction.
According to Johnson’s opinion, Richardson
had known he was infected with HIV for ten
years when he had sex with the two women in
the fall of 2005. Richardson had been under
treatment and enjoying a very low viral load,
but a February 2005 test showed an increase in
viral load in to the “medium level” of infection,
Lesbian/Gay Law Notes
so he was prescribed new medication. At his
next viral load test, shortly after the sexual encounters that were the basis for his prosecution,
his viral load was so low as to be undetectable.
The opinion does not relate how Richardson’s sexual activities came to the attention of
the Lyon County District Attorney’s Office. He
was charged in May and June 2006 with two
counts of violating a Kansas statute that provides, “It is unlawful for an individual who
knows oneself to be infected with a life threatening communicable diseases knowingly to engage in sexual intercourse or sodomy with another individual with the intent to expose that
individual to that life threatening communicable disease.”
At the trial before District Judge Jeffry J. Larson, Richardson waived his right to a jury trial
and agreed with the prosecutor to stipulate to
three facts: that he knew he was infected with
HIV, that he engaged in sexual intercourse with
the two women on the dates charged, and that
“sexual intercourse” under the statute meant
“penetration of the female sex organ by the
male sex organ.” The only evidence presented
at the trial came from Richardson’s doctor, who
was testifying as state’s witness, and another
doctor called by Richardson. Their testimony
mainly addressed the scientific evidence about
communicability of HIV when somebody has
an undetectable viral load, and Richardson’s
doctor was also quizzed about what counseling
he had given to Richardson concerning safe
sexual activity. It turned out that the doctor’s
recollection was fuzzy and his written patient
records did not confirm any particular counseling.
Richardson argued that the statute was too
vague, failing to define what “expose” means,
and also failing to explain the meaning of “life
threatening disease.” District Judge Larson rejected these arguments, and accepted the
state’s contention that based on the stipulated
facts Richardson had violated the statute by engaging in sex with the women while knowing he
was infected. Richardson had argued that it
was not enough for the state to show that he had
engaged in sexual intercourse while knowing
he was HIV+, but rather that the state had to
show that he had the specific intention to expose the women to being infected with HIV.
Larson accepted the state’s argument, and convicted Richardson. Justice Johnson’s decision
does not mention the length of sentence imposed by Larson.
On appeal, the Supreme Court rejected the
state’s interpretation of the statute, agreeing
with Richardson that the statute requires the
state to show that a defendant had a specific intent to expose his sexual partners to the disease,
not just a generalized intent to have sex while
knowing he was HIV+. “The State acknowledges that, on its face, [the statute] purports to
be a specific intent crime. However, the State
Summer 2009
does not acknowledge that this State’s appellate courts have consistently interpreted statutes that define a crime by using the phrase
with intent to’ as requiring a specific intent element,” wrote Johnson. “Instead, without proffering any authority, the State contends that giving effect to the statute’s plain specific intent
language would actually thwart the legislature’s intended purpose of preventing the intentional exposure of others to HIV.”
In effect, the state argued, since there is always some risk of HIV transmission if an infected person has sex with somebody else (for
example, condoms can break), the statute
should be construed to require HIV+ people to
be celibate. Or, as Justice Johnson summarized
the state’s position, “the State suggests that the
specific intent to expose another to HIV is inherently included in the defendant’s general
intent to engage in sexual intercourse. Under
the State’s interpretation, a person infected
with HIV must be totally abstinent or risk being
prosecuted for a felony each and every time he
or she engages in sexual intercourse or sodomy,
regardless of whether the act is between two
consenting (perhaps married) adults with full
knowledge of the virus and utilizing prophylactic measures. We disagree,” he stated emphatically.
Johnson insisted that the state had to prove
that Richardson had the “specific intent to expose them to HIV.” The problem, however, is
that proving intent is difficult, since it is virtually impossible to prove what somebody was
thinking. The best one can do is to produce circumstantial evidence. The state argued that the
court’s interpretation of the statute would make
it virtually meaningless, putting the state to an
impossible burden of proof, but the court disagreed, finding that the state could meet its
burden by showing circumstances from which a
reasonable fact-finder could infer the necessary criminal intent.
In this case, Johnson pointed out, ironically,
evidence had been presented at the preliminary hearing (but not at trial) that might serve
as the basis for drawing such inferences. The
court specified three items of such evidence
that it considered significant. Neither of the
women knew that Richardson was HIV+ when
they agreed to have sex with him, he did not use
condoms, and he lied to one of the women, telling her that he was free of any sexuallytransmitted diseases. The court suggested that
had this evidence been presented at trial, there
could have been a basis to infer specific intent.
The supreme court agreed with Judge Larson
that the statute was not unconstitutionally
vague, finding that people of reasonable intelligence could interpret the terms “expose” and
“life threatening disease” without further explanation from the legislature. But, interestingly, on its own motion the court suggested that
if the state’s interpretation of the statute was
149
correct, it would raise a federal constitutional
problem under Lawrence v. Texas (the 2003
U.S. Supreme Court decision striking down the
Texas sodomy law), because “a person’s decision to engage in private, consensual sexual
conduct is protected by the United States Constitution,” and the state would have the court
construe the statute to make all sexual activity
by HIV+ people a crime, regardless of the degree of risk they would present to their sexual
partner.
Richardson was represented on appeal by
Lydia Krebs of the Kansas Appellate Defender
Office, who managed to persuade the court to
issue one of the most rational, and least hysterical, opinions about HIV exposure that we have
seen over almost three decades of the AIDS epidemic. A.S.L.
Social Security Disability Rulings
California — In Ballesteros v. Astrue, 2009 WL
1582926 (C.D. Cal., June 3, 2009), U.S. Magistrate Judge Paul L. Abrams vacated and remanded a decision that had denied disability
benefits to the plaintiff, a person living with
HIV. The Magistrate found that the Social Security ALJ had provided an insufficient basis in
his opinion for rejecting the opinion of the
plaintiff’s treating physician, and had also misrepresented the state of the record concerning
side effects of the plaintiff’s HIV medications.
Plaintiff had testified about adverse side effects
she suffered, but the ALJ had said in his opinion that there was no evidence of adverse side
effects. The matter was remanded for new
fact-finding.
Florida — Reversing a decision by the Social Security Administration, District Judge
Virginia M. Hernandez Covington endorsed a
recommendation by a magistrate judge in
Baker v. Astrue, 2009 WL 1851015 (M.D.Fla.,
June 26, 2009), that an HIV+ man’s disability
benefits claim be reconsidered because the Immigration Judge had incorrectly determined his
employability by reference to standardized
medical-vocational guidelines instead of obtaining expert testimony from a vocational specialist about the applicant’s potential to work.
Florida — In Williams v. Astrue, 2009 WL
1922210 (M.D. Fla., July 2, 2009) (not officially published), Magistrate Judge Mark A.
Pizzo recommended upholding the denial of social security benefits to the HIV+ plaintiff on
the ground that all proper procedures were followed in determining eligibility and the conclusion that plaintiff was capable of working
was supported by the record.
New York — In Hodge v. Astrue, 2009 WL
1940051 (W.D.N.Y., July 7, 2009) (not officially published), U.S. District Judge Thomas J.
McAvoy found that the Administrative Law
Judge had failed either to give adequate weight
to the disability opinion of the HIV+ plaintiff’s
150
primary care physician or had failed to explain
why he placed greater weight on the views of
another doctor who had seen the plaintiff only
once, especially as the primary care physician’s
views were more consistent with those of several other doctors who had examined the plaintiff at various times. Thus, the ALJ’s conclusion that plaintiff was capable of sedentary
work and not disabled as required to be eligible
for social security disability benefits was not
supported by the record, and the case was remanded for further proceedings. The plaintiff’s
HIV status was not the major issue in the case,
as apparently her infection had not progressed
to cause any debilitating symptoms, and her
physical problems were due to other factors.
A.S.L.
AIDS Litigation Notes
Federal — 9th Circuit — In Stormans, Inc. v.
Selecky, 2009 WL 1941550 (July 8, 2009), the
9th Circuit held that the district court in Oregon
abused its discretion be preliminarily enjoining
the operation of a new state law requiring pharmacies and other distributors of medications to
fulfill prescriptions for FDA-approved medications without discrimination. Pharmacy groups
in the state sought to stop the law from going
into effect, claiming it would violate the 1st
Amendment rights of pharmacists and others
who had religious or other objections to fulfilling prescriptions for certain medications; the
district court found a plausible constitutional
claim and issued the injunction, but the court of
appeals disagreed, finding that the law was
neutral and had an important secular interest.
The evidence presented to the court included
affidavits from HIV specialists warning that
due to moral disapproval of their lifestyles by
pharmacists, some persons living with HIV
could encounter difficulty obtaining medication in a timely way.
Federal — 9th Circuit — Don’t hold your
breath waiting for the cost of HIV meds in the
U.S. to come down through antitrust enforcement. In Doe v. Abbott Laboratories, 2009 WL
1926322 (July 7, 2009), the 9th Circuit rejected a claim in a class action suit brought by
HIV patients and their medical plans that Abbott was abusing its monopoly power as patent
holder for Norvir, a drug that is part of the
“cocktail” of protease inhibitors used by many
people living with HIV in order to suppress the
virus in their bodies. The case is part of the legacy of judicial antitrust deregulation that the
Rehnquist Court began and the Roberts Court
has continued, making HIV meds more expensive in the U.S. than in most of the rest of the
world and contributing to the health care funding crisis in the U.S.
Arkansas — Dismissing a state inmate’s
claim that his rights were violated because the
prison placed him in danger of possible expo-
Summer 2009
sure to HIV, U.S. Magistrate Judge J. Thomas
Ray found that the prison had acted appropriately in the circumstances in McCray v. Hurst,
2009 WL 1850323 (E.D.Ark., June 26, 2009).
The inmate shared a cell with another inmate
whose girlfriend reportedly tested positive for
HIV. As soon as prison officials learned about
the girlfriend, they arranged to have the inmate
tested, and he tested negative for HIV. Nonetheless, plaintiff was freaked about the possibility that he might contract HIV from his cellmate, even though he was never exposed to the
cellmate’s blood. Judge Ray found no constitutional violation because the cellmate was not
HIV+ and the prison took reasonable steps as
soon as it learned there was a possible problem.
California — U.S. District Judge Lawrence
J. O’Neill denied summary judgment to both
sides in Waddill v. AT&T Umbrella Benefit Plan
No. 1, 2009 WL 1748699 (E.D. Calif., June 19,
2009), a disability benefits dispute. The HIV+
plaintiff had received short-term disability
benefits under his employer’s plan for a nonHIV-related condition, but as his period of disability leave was ending, he began to experience physical symptoms that sent him to his
HIV health care provider, and made a request
for extension of disability benefits. The company that was administering the benefits plan
denied his claim and this lawsuit ensued.
Judge O’Neill determined that the standard of
review was de novo under ERISA, because
there had not been a proper delegation of discretion to the company that made the denial decision. He also found that there were disputed
factual issues precluding summary judgment to
either party, not least because the doctors engaged by defendant to review the benefits claim
provided no explanation for rejecting the opinion of the plaintiff’s treating physician that he
needed more time on disability; the issue of
whether plaintiff has a disability within the
meaning of the insurance plan is contested and
cannot be resolved on summary judgment.
California — In a case that does not involve
HIV directly but that clarifies the law in a way
that may be useful to persons with HIV who encounter problems in California with places of
public accommodation, the California Supreme
Court ruled on June 11 that violations of Title
III of the Americans With Disabilities Act (the
public accommodations title) are also violations of the California Unruh Civil Rights Act,
the state’s public accommodations law, regardless of whether there is evidence of discriminatory intent by the operator of the public accommodation, thus giving rise to a private right of
action for damages which is authorized under
the Unruh Act. The ruling is significant because the Unruh Act itself has been construed
to extend only to intentional discrimination.
The court found that when the legislature
amended Unruh to specifically provide that any
violation of title III of the ADA should be
Lesbian/Gay Law Notes
counted as a violation of Unruh, it intended to
provide the full remedial panoply under Unruh,
in effect extending Unruh’s damage remedy to
unintentional discrimination, usually physical
barriers to access for people with disabilities.
Why the need for this state law supplementation of the ADA? Because among the political
compromises required in Congress to enact the
ADA was the decision to limit the remedy for title III violations in private actions to injunctive
relief. While the Justice Department can initiate an ADA action seeking damages, private
plaintiffs can seek only prospective injunctive
relief. But if they are in California, they can
supplement their complaint with an Unruh Act
count and expand their remedial demand to include damages. Munson v. Del Taco, Inc., 2009
WL 1619783 (June 11, 2009).
Delaware — In Clark v. Williams, 2009 WL
1518640 (D. Del., May 31, 2009), District
Judge Farnon refused to dismiss a prison inmate’s 8th Amendment suit against two prison
staff members arising from his complaint that
he was housed in close quarters with another
inmate who allegedly had full-blown AIDS and
hepatitis B. The plaintiff claims that he became infected with hepatitis B by his exposure
to the fellow inmate’s blood, claiming further
that the fellow inmate had exposed sores and
that his blood was present in the cell at various
times on sheets and other items handled by the
plaintiff. The court found that there were contested issues of material fact that would need to
be resolved to determine whether the defendants were liable, but noted in dismissing their
qualified immunity defense that the Supreme
Court has found an 8th amendment violation
where prison officials knowingly expose inmates to serious contagious diseases.
Delaware — In Carter v. Kastre, 2009 WL
1530827 (D. Del., June 1, 2009), a default
judgment, U.S. District Judge Sue L. Robinson
awarded an HIV+ prison inmate compensatory damages of $1,500.00 against the owner of
First Correctional Medical, a company that
contracted to provide health care to Delaware
inmates, on the uncontradicted claim that the
inmate was denied HIV medications through
deliberate indifference.
New York — District Judge P. Kevin Castel
accepted a recommendation from Magistrate
Judge Theodore H. Katz to reject a Sec. 1983
claim by Mosley that, as a criminal defendant,
his constitutional rights were violated when the
state prosecutor in his underlying criminal
prosecution mentioned in open court that Mosley was HIV+. Mosley v. McIntosh, 2009 WL
1542546 (S.D.N.Y., May 29, 2009). Judge
Castel commented that “under any theory potentially applicable to the claim, the defendant
[referring to the prosecutor, who is the one being sued here] is absolutely immune from suit.
The Supreme court has recently reconfirmed
that prosecutors are absolutely immune from li-
Lesbian/Gay Law Notes
ability in section 1983 lawsuits based on
prosecutorial actions that are intimately associated with the judicial phase of the criminal
process.’ Van De Kamp et al. v. Goldstein, 555
U.S. , 129 S.Ct. 855, 859–60 (Jan. 26, 2009).”
Pennsylvania — Philadelphia Inquirer columnist Monica Yant Kinney reported last
month about a curious lawsuit between Life
Partners Inc. (LPI), a viatical settlement firm,
and one “M. Smith,” an HIV-positive woman.
Smith was diagnosed with AIDS and cancer in
the early 1990s, at which time doctors estimated her life expectancy at two years. At the
time, she owned a $150,000 face value life insurance policy, and desperately needed cash to
pay premiums on her health insurance. Enter
LPI, which bought the right to the proceeds un-
Summer 2009
151
der Smith’s policy for $90,000 plus an obligation to pay her annual health insurance premium. LPI figured that they would be on the
hook for a few years of premiums, and would
come out close to $60,000 ahead on the deal
when Smith predictably died. Within a few
years, of course, new HIV treatments were
rolled out, and Smith responded well both to
cancer treatment and to therapy for her HIV infection. And for more than a decade LPI had
been paying her rapidly accelerating health insurance premiums while continually,a nd soon
anxiously, inquiring as to the state of her health.
Once the costs of premiums had eaten up most
of LPI’s expected profit on the viatical contract,
they tried to renounce their obligation to continue paying the insurance premiums, and the
matter ended up in court, with Smith obtaining
representation pro bono from attorney Jacob
Cohn of Cozen O’Connor, recruited through the
AIDS Law Project of Pennsylvania. A trial
judge ordered LPI to place $837,000 in trust to
cover Smith’s future health insurance premium
costs, after an epic evidentiary battle over her
projected life expectancy. (She is now 53 and
robust.) LPI filed an appeal, but then thought
better of it and settled with Smith for $250,000.
Quite a saga! We remember when viatical purchases of life insurance policies from people
with AIDS was all the rage in the late 1980s and
early 1990s, but that business was largely
wiped out with the introduction of protease inhibitors and the sharp drop in HIV-related mortality rates. A.S.L.
2009) (Uses the Supreme Court’s sexual
stereotyping analysis from Title VII Price Waterhouse as analytical tool to exam societal heterosexism).
Curtis, Michael Kent, Be Careful What You
Wish For: Gays, Dueling High School T-Shirts,
and the Perils of Suppression, 44 Wake forest L.
Rev. 431 (Summer 2009).
Fasullo, Kristin, Beyond Lawrence v. Texas:
Crafting a Fundamental Right to Sexual Privacy, 77 Fordham L. Rev. 2997 (May 2009).
Fee, John, The Pornographic Secondary Effects Doctrine, 60 Ala. L. Rev. 291 (2009).
Gabilondo, Jos, When God Hates: How Liberal Guilt Lets the New Right Get Away With
Murder, 44 Wake Forest L. Rev. 617 (Summer
2009).
Gilreath, Shannon, “Tell Your Faggot Friend
He Owes Me $500 For My Broken Hand”:
Thoughts on a Substantive Equality Theory of
Free Speech, 44 Wake Forest L. Rev. 557 (Summer 2009).
Green, Matthew W., Jr., Lawrence: An Unlikely Catalyst for Massive Disruption in the
Sphere of Government Employee Privacy and
Intimate Association Claims, 29 Berkeley J.
Emp. & Lab. L. 311 (2008) (contends that
Scalia’s dissenting prediction that Lawrence
will disrupt public sector employee privacy law
was incorrect because Lawrence was a rational
basis case; premise of article undermined by
subsequent 9th and 1st Circuit cases holding
that Lawrence was not a rational basis case!).
Knight, Sarah M., United States v. Andrus:
Password Protect Your Roommate, Not Your
Computer, 26 J. Marshall J. Computer & Info. L.
183 (Fall 2008) (comment on disturbing development in privacy law in the 10th Circuit, upholding warrantless search of password protected computer drive based on third-party
consent in child pornography case).
Kunin, Israel L., and James M. Davis, Protecting Children and the Custodial Rights of
Co-Habitants, 22 Am. Acad. Matrim. Law. 29
(2009).
Lave, Tamara Rice, Only Yesterday: The Rise
and Fall of Twentieth Century Sexual Psychopath Laws, 69 La. L. Rev. 549 (Spring 2009).
Lindell, Geoffrey, Constitutional Issues Regarding Same-Sex Marriage: A Comparative
Survey — North America and Australasia, 30
Sydney L. Rev. 27 (March 2008).
Long, Autumn, Sex Offender Laws of the
United Kingdom and the United States: Flawed
Systems and Needed Reforms, 18 Transnational
L. & Contemp. Prob. 145 (Winter 2009).
Lorenzo, Alison, Constitutional Law —
Equal Rights Amendment, Equal Protection,
and Due Process — The Right of Same-Sex
Marriage is Not Fundamental, Prohibiting
Same-Sex Marriage Does Not Constitute
Gender-Based Discrimination, and Restrictions
on the Right of Marriage Are Rationally Related
to the State’s Interest in Regulation of Marriage.
Conaway v. Deane, 932 A.2d 571 (Md. 2007),
39 Rutgers L.J. 1003 (Summer 2008).
McGrath, James, Are You a Boy or a Girl?
Show Me Your Real ID, 9 Nev. L.J. 368 (Winter
2009) (argues that Real ID Act should be
amended to omit gender from official identification papers).
Meier, Diane S., Gender Trouble in the Law:
Arguments Against the Use of Status/Conduct
Binaries in Sexual Orientation Law, 15 Wash.
& Lee J. Civil Rts. & Soc. Just. 147 (Fall 2008).
Morrison, Matthew M., Class Dismissed:
Equal Protection, the “Class-of-One,” and Employment Discrimination Afer Engquist v. Oregon Department of Agriculture, 80 U. Colo. L.
Rev. 839 (Summer 2009).
Myers, Gretchen Adel, Allowing For Cultural
Discussion of Queerness and Pansexuality:
Sex/Gender/Sexual Belief Systems, the Religion
Clauses, and the Ideal of Pluralism, 38 Stetson
L. Rev. 409 (Winter 2009).
Nichols, Justin P., The Hidden Dichotomy in
the Law of Morality, 31 Campbell L. Rev. 591
PUBLICATIONS NOTED
LESBIAN & GAY & RELATED LEGAL ISSUES:
Abrams, Kerry, and Peter Brooks, Marriage as
a Message: Same-Sex Couples and the Rhetoric
of Accidental Procreation, 21 Yale J. L. & Human. 1 (Winter 2009).
Alexander, Sharon E. Debbage, and Kathi S.
Westcott, Repeal of “Don’t Ask, Don’t Tell:” A
Smooth Transition, 15 Wash. & Lee J. Civil Rts.
& Soc. Just. 129 (Fall 2008).
Allender, Daniel, Applying Lawrence: Teenagers and the Crime Against Nature, 58 Duke
L.J. 1825 (April 2009).
Badgett, M.V. Lee, The Double-Edged Sword
in Gay Economic Life? Marriage and the Market, 15 Wash. & Lee J. Civil Rts. & Soc. Just.
109 (Fall 2008).
Baker, Dennis J., The Moral Limits of Consent as a Defense in the Criminal Law, 12 New
Crim. L. Rev. 93 (Winter 2009).
Berg, Laurie, and Jenni Millbank, Constructing the Personal Narratives of Lesbian, Gay and
Bisexual Asylum Claimants, 22 J. Refugee
Studies 195 (2009).
Borgmann, Caitlin E., Holding Legislatures
Constitutionally Accountable Through Facial
Challenges, 36 Hastings Const. L.Q. 563 (Summer 2009).
Brauch, Jeffrey A., The Dangerous Search for
an Elusive Consensus: What the Supreme Court
Should Learn from the European Court of Human Rights, 52 Howard L.J. 277 (Winter
2009).
Cahill, Courtney Megan, (Still) Not Fit To Be
Named: Moving Beyond Race to Explain Why
Separate’ Nomenclature for Gay and Straight
Relationships Will Never Be Equal’, 97 Geo. L.
J. 1155 (June 2009).
Chiesa, Abigail M., “Don’t Ask, Don’t Tell”
What Lies Ahead for Gays in the Military?, 21
D.C. Bar Association Brief 16 (July 2009).
Cloar, Cameron, Through the Price Waterhouse Looking Glass: Dominance and Oppression Revealed, 43 U.S.F. L. Rev. 703 (Winter
152
(Spring 2009) (takes on Scalia dissenting argument in Lawrence v. Texas that Court has ruled
out morality as a justification for criminal law,
and purports to distinguish between religious
morality — ruled out as a basis for statutory
law — and civil morality).
Poirier, Marc R., Microperformances of Identity: Visible Same-Sex Couples and the Marriage Controversy, 15 Wash. & Lee J. Civil Rts.
& Soc. Just. 3 (Fall 2008).
Polikoff, Nancy D., Equality and Justice for
Lesbian and Gay Families and Relationships,
61 Rutgers L.Rev. 101 (2009).
Richman, Kimberly D., Courting Change:
Queer Parents, Judges, and the Transformation
of American Family Law (New York: N.Y.U.
Press, 2009).
Ritschel-Smith, Jennifer, United States Survey on Domestic Partnership, 22 J. Am. Acad.
Matrim. Law. 125 (2009).
Sinness, Rachel, The Best Interests of the
Child and the Rights of the Parent: Damron v.
Damron and the Future of Parenting and Child
Custody in North Dakota, 84 N.D.L. Rev. 999
(2008).
Smith, Katie Andrews, Adoption: How Protecting Privacy is in the Best Interest of Georgia’s
Children, 2 J. Marshall L.J. 264 (2009) (contends that judicial consideration of prospective
adoptive parent’s sexual orientation violates
right of privacy of parent).
Stemple, Lara, Male Rape and Human
Rights, 60 Hastings L.J. 605 (2008–2009).
Stern, Seth, Fair Housing and Online Free
Speech Collide in Fair Housing Council of San
Fernando Valley v. Roommates.com, LLC, 58
DePaul L. Rev. 559 (Winter 2009).
Stewart, Monte Neil, Genderless Marriage,
Institutional Realities, and Judicial Elision, 1
Duke J. Const. L. & Pub. Pol’y 1 (2006)(Curiously, the article, the first to be published by a
then-new journal right-wing oriented law journal at Duke University Law School, arguing
against same-sex marriage on various grounds,
does not identify the author. Further exploration on-line shows that he is a former U.S. Attorney for Nevada, and an alumnus of Brigham
Young University Law School who heads an or-
Summer 2009
ganization devoted to opposing same-sex marriage).
Wiggum, Kacy Elizabeth, Defining Family in
American Prisons, 30 Women’s Rts. L. Rep.
357 (Winter 2009).
Williams, Genevra, Gays in the Military —
The Ninth Circuit Court of Appeals Fails to Subject “Don’t Ask, Don’t Tell” To a Strict Scrutiny
Test: Witt v. Department of the Air Force, 74 J. Air
L. & Com. 143 (Winter 2009).
Wood-Bodley, Michael Cameron, Same-Sex
Couple Discrimination in Employment Benefits:
Where To Now?, 125 S. African L.J. 483 (2008).
Young, Judith A., Same-Sex Marriage in
California: After Proposition 8 Passed and Before the California Supreme Court Decision on
the Challenge to Proposition 8, 36 Lincoln L.
Rev. 131 (2008–2009).
Zaluda, Jeffrey A., A “Spouse” By Any Other
Name Is Not Necessarily a “Spouse,” 34 Tax
Mgt. Estate, Gifts, Trusts J. 190 (July 9, 2009).
Specially Noted:
The Tenth Annual Review of Gender and Sexuality Law has been published by the Georgetown Journal of Gender and the Law, Vol. 10,
No. 2 (2009). The 700+ page student-written
volume provides a summary and overview of a
wide range of sexuality-related issues, including constitutional law, criminal law, education
law, employment law, family law, and health
care law.
The Summer 2009 issue of Harvard Law
Bulletin includes a brief article by Prof. Michael Klarman, identified as “a civil rights historian,”, under the title Marriage Equality: Are
Lawsuits the Best Way? Klarman poses the
question whether successful test case litigation
stimulates such strong and immediate political
backlashes that it should not be undertaken.
He rehashes the history of state anti-marriage
amendments enacted in response to the success of the Goodridge case, and queries
whether pursuing a legislative strategy might
have been better. But this article, written in the
wake of the recent string of legislative successes in New England on top of the Iowa Supreme Court victory, ends on a rather mixed
note, as he concludes: “The pace of change in
Lesbian/Gay Law Notes
the last two months has been absolutely extraordinary; I’ve never seen anything like it in
my lifetime. It’s hard to believe that we would
be where we are today had it not been for the
Massachusetts court decision in Goodridge.
Still, without Goodridge, we might not have 30
states constitutionally banning same-sex marriage, and George W. Bush might not have been
re-elected president in 2004. [He buys into the
theory that the anti-marriage amendment on
the ballot in Ohio in 2004 may have been responsible for stimulating unusually high turnout from anti-marriage partisans who also voted
for Bush, and Ohio was the tipping point state
in 2004.] The effects of court decisions can be
unpredictable and even paradoxical.”
AIDS & RELATED LEGAL ISSUES:
Kwoka, Margaret B., Vindicating the Rights of
People Living With AIDS Under the Alien Tort
Claims Act, 40 Loyola Univ. Chi. L. J. 643
(Spring 2009).
Madera, Matthew R., Constitutional Law —
Sacrificing the Good of the Few for the Good of
the Many: Denying the Terminally Ill Access to
Experimental Medication, 31 W. New Eng. L.
Rev. 535 (2009).
Puymbroeck, Rudolf V. Van, Beyond Sex: Legal Reform for HIV/AIDS and Poverty Reduction, 15 Geo. J. On Poverty L. & Pol’y 781 (Fall
2008)
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. ••• This Summer edition of Law Notes
takes the place of monthly July and August
newsletters. The next issue will be published in
September 2009.