IOWA SUPREME COURT UNANIMOUSLY RULES FOR MARRIAGE EQUALITY

May 2009
IOWA SUPREME COURT UNANIMOUSLY RULES FOR MARRIAGE EQUALITY
In a sweeping unanimous decision, the sevenmember Iowa Supreme Court ruled on April 3
in Varnum v. Brien, 2009 WL 874044, that the
state law limiting marriage to different-sex couples violates the equal protection guarantee of
the state’s constitution. Additionally, the court
held that only equal marriage rights, not some
parallel structure like civil unions, can satisfy
the constitutional equality requirement, so the
appropriate remedy was to affirm the trial court
and order the state to treat same-sex couples
the same as different sex couples with respect to
civil marriage. The Polk County Attorney, John
Sarcone, announced that his office would not
seek a rehearing, so the court’s decision would
take effect in 21 days, under Iowa court rules.
However, because the courts are closing the last
Friday each month as an economy measure, the
court’s order authorizing issuance of marriage
licenses was not entered until Monday, April
27, when local clerks began issuing marriage
licenses to same-sex couples.
The leaders of both houses of the state legislature, Senate Majority Leader Mike Gronstal
and House Speaker Pat Murphy, promptly issued a joint statement hailing the decision and
congratulating LGBT Iowans on their victory.
“Today, we congratulate the thousands of Iowans who now can express their love for each
other and have it recognized by our laws,” they
wrote. The legislature adjourned by the last
week in April, the leadership having blocked
several attempts by Republican legislators intended to put an anti-gay marriage constitutional amendment on the ballot. Because of the
complicated and time-consuming procedures
for constitutional amendments in Iowa, this
means the earliest the issue could be placed directly on the ballot is at least several years off.
The ruling in Varnum is a triumph for
Lambda Legal, the leading national LGBT public interest law firm that conceived and organized the litigation in collaboration with Iowa
LGBT rights groups, and cooperating attorney
Dennis W. Johnson of Des Moines, who masterfully argued the case to the court. This is the
first time that a state supreme court has unanimously concluded that same-sex couples have
an equal right with different-sex couples to
LESBIAN/GAY LAW NOTES
marry as a matter of state constitutional law.
Prior same-sex marriage victories in Massachusetts, California and Connecticut have all
come from closely divided courts, as have the
defeats in states such as New York and Maryland. The Vermont and New Jersey Supreme
Courts were unanimous in finding that the existing marriage laws violated their constitutions, but divided as to remedy; civil union laws
resulted from their decisions in both states.
The named defendant in the Iowa case was
the Polk County Recorder, Timothy J.
Brien,who refused to issue marriage licenses to
the plaintiff couples. That it was the County Attorney’s office rather than the state attorney
general that took on the defense of the statute
and argued to the court already hints at the attitude of the state government to this case. Governor Chet Culver and the legislative leaders
were apparently distancing themselves.
The beautifully and clearly written opinion
by Justice Mark Cady stands as a strong rebuke
to the bizarre plurality opinion produced by
Judge Robert Smith of the New York Court of
Appeals in the 2006 ruling in Hernandez v. Robles, while building on the important opinions
explaining their rulings by California Chief
Justice Ronald George (In re Marriage Cases)
and Connecticut Justice Richard N. Palmer
(Kerrigan). Justice Cady cited and quoted from
Justices George and Palmer, but also made
many important contributions in helping to explain why the court reached its decision.
The court decided to treat this as an equal
protection case concerning a statute that discriminates based on sexual orientation. The
plaintiffs had challenged on both gender and
sexual orientation discrimination grounds, and
the trial judge had seen this as a gender discrimination case, but the court decided to cut
through the semantics and get to the heart of the
matter: the challenged law, which was enacted
as part of the surge in state-level so-called Defense of Marriage acts during the 1990s, was
intended to exclude gay people from marrying.
Before analyzing the challenge to the statute,
Justice Cady undertook a brief civics lesson on
the nature of tripartite constitutional government and the role of the courts in dealing with
May 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; Daniel Redman, Esq., San Francisco; Ruth Uselton, Esq.; NYC; Stephen E. Woods,
NYLS ‘10.
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[email protected]. Inquire for rates.
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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
claims that statutes are unconstitutional. He
reviewed some of the highlights of Iowa equal
protection jurisprudence, including state constitutional rulings recognizing the equality
rights of black people more than two decades
before the Civil War, an 1873 decision questioning the constitutionality of racial segregation (more than 80 years before the U.S. Supreme Court came to that point in Brown v.
Board of Education), and Iowa’s distinction as
the first state in the nation to strike down the exclusion of women from the legal profession, in
1869. While acknowledging that Iowa has not
always been in the forefront in equal protection
jurisprudence, Cady showed that the state’s supreme court has shown great independence in
this field.
As to the same-sex marriage issue, he wrote,
“This issue comes to us with the same importance as our landmark cases of the past. The
same-sex-marriage debate waged in this case is
part of a strong national dialogue centered on a
fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans. This class of people
asks a simple and direct question: How can a
state premised on the constitutional principle
of equal protection justify exclusion of a class of
Iowans from civil marriage?”
The important threshold questions in equal
protection cases are whether the plaintiffs, excluded from some right or benefit under the law,
are similarly situated with those who are included in enjoying the right or benefit, and, if
so, whether the state has a sufficient justification for the exclusion. The state’s burden in
justifying the exclusion is heightened if the
court decides that the classification that the law
establishes is “suspect” in some way, thus triggering a more demanding level of judicial review.
In this case, the court decided that same-sex
couples seeking to marry are similarly situated
to different-sex couples. “Plaintiffs are in committed and loving relationships, many raising
families, just like heterosexual couples,” wrote
Cady. “Moreover, official recognition of their
status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual
couples. Society benefits, for example, from
providing same-sex couples a stable framework
within which to raise their children and the
power to make health care and end-of-life decisions for loved ones, just as it does when that
framework is provided for opposite-sex couples.” The only distinction, Cady asserted, was
sexual orientation, and “this distinction cannot
defeat the application of equal protection
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analysis through the application of the similarly
situated concept because, under this circular
approach, all distinctions would evade equal
protection review.”
The court also rejected the county’s fatuous
argument that the law did not discriminate
against gay people because they are free to
marry different-sex partners. “Viewed in the
complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian
person as a civil marriage with a person of the
same sex is to a heterosexual. Thus, the right of
a gay or lesbian person under the marriage statute to enter into a civil marriage only with a person of the opposite sex is no right at all.” Cady
drew an analogy to the U.S. Supreme Court’s
1996 Romer v. Evans decision, and its refusal to
accept the argument that a state policy discriminating on the basis of homosexual conduct
was not, in fact, a status-based discrimination.
“Romer can be read to imply that sexual orientation is a trait that defines an individual and is
not merely a means to associate a group with a
type of behavior,” wrote Cady. “By purposefully
placing civil marriage outside the realistic
reach of gay and lesbian individuals, the ban on
same-sex civil marriages differentiates implicitly on the basis of sexual orientation.”
Thus, the critical question was determining
the appropriate level of judicial scrutiny, and
the court followed the path blazed by the supreme court majorities in California and Connecticut in finding that a heightened level of judicial scrutiny for sexual orientation
discrimination claims is warranted. This is especially significant because it throws the burden of justification on the state. In the absence
of heightened scrutiny, the challenged law is
presumed constitutional and the burden falls
on the challenger to demonstrate its total irrationality. In a heightened scrutiny case, the
state must show that the statute substantially
advances an important state interest. Because
the court found that the defendant had failed to
meet this burden, there was no need to go as far
as the California Supreme Court went in holding that sexual orientation claims merit strict
scrutiny.
The court’s discussion of the analytical
method it used to decide whether heightened
scrutiny was required is technical but important. Contrary to the argument by the county,
the court said that the “four factor test” that
many courts have applied, derived from U.S.
Supreme Court equal protection decisions, is a
flexible test to be applied with a nuanced, factsensitive analysis. Most courts agree that there
is a history of discrimination against gay people, and that sexual orientation has come to be
accepted as having no general bearing on an individual’s ability to contribute to society, but
then part company on the question whether
May 2009
sexual orientation is “immutable” and whether
gays are “politically powerless.”
Cady’s approach to these questions followed
the pragmatic example of the California and
Connecticut courts, pointing out that absolute
immutability of a trait is not required, but rather
that the trait is important in defining a person’s
identity and the way he or she lives their life, is
what counts. Furthermore, Cady observed, as
others have, that the question of political powerlessness is relative to the issue at stake and
must be given a historical context. He pointed
out that women had already begun to amass significant political power by the time the U.S. Supreme Court got around to applying heightened
scrutiny in sex discrimination cases, and that
people of color have acquired significant political power (footnote reference to the inauguration of President Obama), but nobody argues
that the courts should stop applying strict scrutiny in their consideration of race discrimination claims.
Moreover, he pointed out, it is clear that to
this point gays have not shown much political
power on the issue of marriage. As of April 3,
2009, no state has legislated same-sex marriage, and all but a handful of states, including
Iowa, have adopted some form of statutory or
constitutional ban on same-sex marriages.
(Two successful attempts to win legislative approval for same-sex marriage in California were
blocked by the governor’s veto, and at the time
this opinion was issued, both houses of the Vermont legislature had approved a same-sex marriage measure in the face of a threatened veto;
see story on Vermont below.) Thus, barring
some massive change in the political landscape, same-sex couples are unlikely to be able
to vindicate their equality claim to marriage
through the legislative process, at least certainly in Iowa where there had been no signs of
legislative interest in repealing the state’s Defense of Marriage Act.
Once having established that heightened
scrutiny would apply, the court conceptualized
the question before it as “whether the state has
exceedingly persuasive’ reasons for denying
civil marriage to same-sex couples, not whether
state-sanctioned, heterosexual marriage is constitutional. Thus, the question we must answer
is whether excluding gay and lesbian people
from civil marriage is substantially related to
any important governmental objective.”
This, of course, stands as a direct rejection of
the methodology used by those state courts that
have embraced the “channeling procreation”
theory as a justification for providing marriage
only to different-sex couples, and especially
the absurd contention by New York Court of Appeals Judge Smith in Hernandez that because
same-sex couples can only have children
through “intentional” acts such as donor insemination, surrogacy or adoption, there is no
need to dangle the benefits of marriage in front
Lesbian/Gay Law Notes
of them in order to “channel” their procreative
activities.
Once this analytical framework was established, the county’s case collapsed like a house
of cards, since none of the articulated justifications could possibly meet the test of substantially advancing a legitimate objective of the
state.
Justice Cady quickly demolished the county’s argument that maintaining or preserving
traditional marriage could qualify as the necessary justification. “A specific tradition sought to
be maintained cannot be an important governmental objective for equal protection purposes,” he wrote, “when the tradition is nothing
more than the historical classification currently
expressed in the statute being challenged.
When a certain tradition is used as both the
governmental objective and the classification
to further that objective, the equal protection
analysis is transformed into the circular question of whether the classification accomplishes
the governmental objective, which objective is
to maintain the classification.” In other words,
maintaining a tradition of discriminating is not
in itself an important interest of the government, the issue in an equal protection case being why such discrimination is needed. As
Cady observed, “If a simple showing that discrimination is traditional satisfies equal protection, previous successful equal protection challenges of invidious racial and gender
classifications would have failed.”
The court also rejected the content that the
existing exclusion somehow advances the best
interest of children, which the county argues is
achieved by having them raised in traditional,
different-sex marital households. Cady pointed
to the record before the court, as supplemented
by the court’s research, showing that all the
professional opinion on child-rearing embodied in the policies advocated by professional
associations supports the plaintiffs in arguing
that same-sex couples are as capable as
different-sex couples in raising children. He
found that if this is the law’s objective, it is both
under-inclusive and over-inclusive at the same
time, allowing people who are patently unfit to
raise children to marry, while denying marriage
to people who are capable of parenting well.
Further, the court doubted that the current
law discourages same-sex couples from having
children, or plays any role in encouraging different sex-couples to have children. “A law so
simultaneously over-inclusive and underinclusive is not substantially related to the government’s object,” he asserted, contending that
“the germane analysis does not show how the
best interests of children of gay and lesbian
parents, who are denied an environment supported by the benefits of marriage under the
statute, are served by the ban. Likewise, the exclusion of gays and lesbians from marriage does
not benefit the interests of those children of het-
Lesbian/Gay Law Notes
erosexual parents, who are able to enjoy the environment supported by marriage with or without the inclusion of same-sex couples.” The
court also dismissed the contention that the
current law promotes procreation, finding that
even if it were true that some small number of
gay people might marry different-sex partners
in order to be able to procreate without modern
reproductive technology, “the link between exclusion of gay and lesbian people from marriage and increased procreation is far too tenuous to withstand heightened scrutiny.”
The county also argued that the current law is
intended to promote stability in opposite-sex
relationships, but the court could not see how
excluding same-sex couples from marrying advances this interest. And on the point of conservation of resources, the court conceded that
allowing same-sex couples to marry would open
up to the them the array of benefits that are now
provided to married couples, but would not
countenance this as a justification. Although
the current ban “may conserve some state resources,” wrote Cady, “Excluding any group
from civil marriage — African-Americans, illegitimates, aliens, even red-haired individuals
— would conserve state resources in an equally
rational’ way. Yet, such classifications so obviously offend our society’s collective sense of
equality that courts have not hesitated to provide added protections against such inequalities.” Furthermore, there was no evidence that
married same-sex couples would use more resources than married different-sex couples,
thus no justification for basing an exclusion on
this classification.
Concluding this portion of the opinion, the
court acknowledged that some of the “objectives” the county articulated were important,
but “none are furthered in a substantial way by
the exclusion of same-sex couples from civil
marriage. Our equal protection clause requires
more than has been offered to justify the continued existence of the same-sex marriage ban under the statute.”
Before discussing the court’s remedy for the
unconstitutional exclusion, Cady interpolated a
brief discussion of religious opposition to
same-sex marriage and its essential irrelevance
to the issue before the court. The county had
May 2009
not raised religious objections as a justification.
“The County’s silence reflects, we believe, its
understanding this reason cannot, under our
Iowa Constitution, be used to justify a ban on
same-sex marriage.” Cady pointed out that
“religious sentiment most likely motivates
many, if not most, opponents of same-sex civil
marriage,” but observed that religious views
are not monolithic, citing the range of religious
bodies in the U.S. that have now endorsed
same-sex marriage. “Our constitution does not
permit any branch of government to resolve
these types of religious debates and entrusts to
courts the task of ensuring government avoids
them. The statute at issue in this case does not
prescribe a definition of marriage for religious
institutions,” and actually identifies marriage,
under Iowa law, as a “civil contract.” “Thus, in
pursuing our task in this case, we proceed as
civil judges, far removed from the theological
debate of religious clerics, and focus only on
the concept of civil marriage and the state licensing system that identifies a limited class of
persons entitled to secular rights and benefits
associated with civil marriage.”
Cady denied that the court’s decision would
abridge the right of anyone in Iowa to the free
exercise of religion. “A religious denomination
can still define marriage as a union between a
man and a woman, and a marriage ceremony
performed by a minister, priest, rabbi, or other
person ordained or designated as a leader of the
person’s religious faith does not lose its meaning as a sacrament or other religious institution,” he wrote.
“We are firmly convinced the exclusion of
gay and lesbian people from the institution of
civil marriage does not substantially further
any important governmental objective,” wrote
Cady, summing up the court’s holding. “The
legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally
sufficient justification. There is no material
fact, genuinely in dispute, that can affect this
determination.”
He said that failure to hold the marriage statute unconstitutional “would be an abdication of
our constitutional duty. If gay and lesbian people must submit to different treatment without
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an exceedingly persuasive justification, they
are deprived of the benefits of the principle of
equal protection upon which the rule of law is
founded.”
As to the remedy, the court was not ready to
embrace the halfway measures suggested by
the New Jersey or Vermont supreme courts,
which led to the enactment of civil union laws
in those states. In this case, wrote Cady, the existing law “is unconstitutional because the
County has been unable to identify a constitutionally adequate justification for excluding
plaintiffs from the institution of civil marriage.
A new distinction based on sexual orientation
would be equally suspect and difficult to square
with the fundamental principles of equal protection embodied in our constitution. This record, our independent research, and the appropriate equal protection analysis do not suggest
the existence of a justification for such a legislative classification that substantially furthers
any governmental objective. Consequently, the
language in Iowa Code section 595.2 limiting
civil marriage to a man and a woman must be
stricken from the statute, and the remaining
statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.”
The court’s opinion — as noted above, the
first unanimous ruling by a state’s highest court
to order that same-sex couples be accorded the
same right to marry as different-sex couples —
is a historic document of the first order. The
opinion is written in a clear, straight-forward
manner, calculated to be understandable by the
ordinary citizen. Perhaps even the ordinary
anti-gay fulminator? And, to top it off, this
opinion was written by a judge appointed by a
Republican governor, as were the opinions from
Massachusetts and California. (The Connecticut decision was written by a justice appointed
by an Independent governor, who had serve in
Congress as a Republican.) At any event, one
can only hope that somebody gets a copy of this
opinion in front of President Obama and Secretary of State Clinton, both highly-trained constitutional lawyers who may come to appreciate
the court’s arguments and rethink their continued opposition to same-sex marriage based on
their religious beliefs. A.S.L.
Vermont Becomes First State to Legislate Same-Sex Marriage; Connecticut Governor Becomes First to Sign
Same-Sex Marriage Bill Into Law; New Hampshire & Maine Marriage Bills Progress Towards Enactment
April 2009 turned out to be “same-sex marriage month” in the United States. The Iowa Supreme Court decision coming early in the
month. Then the Vermont legislature becoming
the first in the nation effectively to enact a
same-sex marriage bill into law. Days later,
Governor Jodi Rell of Connecticut becoming
the first state chief executive to sign a same-sex
marriage bill into law. In the waning days of the
month, the New Hampshire Senate approved a
same-sex marriage bill, a different version of
which was approved in March by the House, although Governor Lynch’s cooperation was not
immediately assured, since he had previously
stated his opposition to same-sex marraige. Fi-
82
nally, on April 30, the Maine Senate also approved a same-sex marriage bill, with voting in
the House of Representatives anticipated to
take place on May 5. In the space of just a few
weeks, two new states were added to the list of
those offering same-sex marriage, another,
Connecticut, had solidified its position through
legislative codification of last fall’s state supreme court decision, and others, New Hampshire and Maine, seemed poised to act. It appeared possible that the goal set by Gay &
Lesbian Advocates & Defenders to achieve
same-sex marriage rights throughout New England by 2012 might be achieved long before the
deadline, with Rhode Island being the only
New England state without substantial progress
toward the goal already accomplished.
The quick procession of several states dealing with the same-sex marriage issue seemed to
have helped push public opinion in a positive
direction, as a national ABC-Washington Post
poll that had been asking the question since
2003 captured a significant increase in the percentage of respondents supporting marriage for
same-sex couples. Based on nationwide polling on April 24, the ABC-Post poll reported that
49 percent of respondents supported same-sex
marriage, 46 percent were opposed, and 5 percent expressed no opinion. This was the first
time that same-sex marriage received a plurality of support.
Vermont was in certain respects a cliffhanger,
and long overdue. At the end of 1999, the Vermont Supreme Court ruled in Baker v. State that
the state’s failure to provide access to all the
state-law rights and benefits of marriage to
same-sex couples violated the state constitution’s equal benefits clause. The court was
unanimous in finding the violation, but sharply
divided over the remedy, with a majority concluding that the question how to extend those
rights and benefits should be posed in the first
instance to the legislature. The legislature responded by enacting the nation’s first Civil Union Act in 2000, establishing a separate (and,
the truth be told, unequal) status for same-sex
couples. The plaintiffs in Baker (local attorneys collaborating with Gay & Lesbian Advocates & Defenders) agreed to accept this instead of pressing the court to reconsider the
remedy, and the Civil Union Act went into effect. In the meantime, neighboring Massachusetts achieved same-sex marriage through a decision by the Supreme Judicial Court in 2003,
followed by the California Supreme Court in
2008, and Vermont was beginning to look behind the times.
By 2008 the pressure had been building for
the legislature to “upgrade” the state’s law, and
the Connecticut Supreme Court’s 2008 decision for same-sex marriage provided an additional spark. What California and Connecticut
added were two articulate opinions explaining
why domestic partnership (California) and civil
May 2009
unions (Connecticut) were not sufficient to create true equality. Further enforcement on this
point came from New Jersey, where a state commission established to examine the operation of
that state’s Civil Union Act issued a report finding that the law had not provided true equality
for New Jersey same-sex couples. Legislative
majorities for same-sex marriage emerged in
Vermont, where both legislative houses had
Democratic majorities, but the main question
was whether they would be veto-proof majorities, since Governor Jim Douglas, a Republican, had repeatedly stated his opposition. After
the measure had passed the House by a vetoproof majority, Douglas announced that he
would veto it if it passed the Senate. It did pass
the Senate, with slightly less than a veto-proof
majority, and the veto quickly followed. But
supporters of the measure, both inside and outside the legislature, worked hard on lobbying
the Senate, and in the final voting the measure
was enacted over the governor’s veto, with no
votes to spare. That sounds close, of course, but
in actuality it meant that a super-majority of
each house had ultimately voted in support of
same-sex marriage. And thus Vermont became
the first state in the union to legislate same-sex
marriage.
The bill, S.115, states the legislature’s purpose “to recognize legal equality in the civil
marriage laws and to protect the religious freedom of clergy and religious societies authorized
to solemnize civil marriages.” It achieves these
aims by adopting a new definition of marriage
as “the legally recognized union of two people,”
but by providing that whenever the term “marriage” is used anywhere in the state’s laws, it
shall mean “civil marriage.” The law also supplements existing incest bans by providing,
“No person shall marry his or her parent,
grandparent, child, grandchild, sibling, sibling’s child, or parent’s sibling.” The law
makes clear that clergy are not required to perform marriages that would violate their religious beliefs, that their refusal to perform any
particular marriage does not give rise to a cause
of action, and that religiously-affiliated societies that are otherwise subject to the state’s
public accommodations law are not required to
provide goods or services for any marriage to
which they object. Various provisions of the
Civil Union Act are repealed, so that no more
civil unions can be contracted when the bill
goes into effect, but existing civil unions will
continue to be recognized, although civil union
partners may also marry without dissolving
their civil union. The whole thing goes into effect on September 1. The statute does not expressly address the issue of recognition by Vermont of same-sex marriages, civil unions or
domestic partnerships formed out-of-state, but
by continuing to recognize the civil unions contracted within the state under its 2000 Civil
Union Act, Vermont may have set up a situation
Lesbian/Gay Law Notes
where its courts will find that both out-of-state
civil unions and out-of state same-sex marriages should be recognized in Vermont.
Just days later, on April 22, the Connecticut
legislature finished work on a measure intended to codify the state supreme court’s 2008
decision in Kerrigan, make suitable adjustments in existing marriage law, and address
some of the policy questions raised by the advent of same-sex marriage in the state. Governor Rell signed S.B.899 into law on April 23.
The law enacts the following definition of
marriage for Connecticut, as Sec. 46b-20(4) of
the Connecticut General Statutes: “’Marriage’
means the legal union of two persons.” The new
specifications for eligibility to marry provides
that somebody who is a party to a relationship
that provides substantially the same rights,
benefits and responsibilities as marriage is not
eligible to marry anybody except the other party
of that relationship. Thus, a couple that was
civilly united in New Hampshire or New Jersey
could marry in Connecticut. Interestingly,
however, the new law also provides that such a
relationship will be recognized as a marriage in
Connecticut, without the need to go through a
marriage ceremony. Additionally, and unusually, the statute gives permission for other states
that have civil unions or domestic partnerships
by not same-sex marriages to treat married
same-sex couples from Connecticut as being in
a civil union or domestic partnership, as the
case may be. The utility of this provision is
open to some question, since it seems unlikely
that Connecticut would have any say in the
matter of what other states do.
The Connecticut law takes essentially the
same approach as the Vermont law in dealing
with the religious issue, exempting clergy from
having to perform same-sex marriages and exempting religious and religiously-controlled
associations from having to “participate in a
ceremony solemnizing a marriage in violation
of the religious beliefs of that church or qualified church-controlled organization.”. The legislature had rejected attempts by religious advocates to create a broader “conscience”
exemption to the state’s public accommodations law in favor of any business owner with religious objections to same-sex marriages, so the
exemption is restricted to a “church or churchcontrolled organization.” Presumably the term
“church” is being used generically to describe
religious organizations regardless of denomination, but the statute does not make this clear.
Connecticut takes a somewhat different approach to the issue of its existing civil union law
from Vermont. In Connecticut, civil union partners can apply for marriage licenses, but they
don’t have to, because as of October 1, 2010,
their civil union will be treated as a marriage,
unless it has been legally dissolved or a dissolution proceeding has been commenced.
Lesbian/Gay Law Notes
Connecticut and Vermont are the first states
to have addressed legislatively the transition
from a civil union regime to a same-sex marriage regime, so these bills are unique and unprecedented, and may provide a template for
other civil union or domestic partnership states
where the legislature seeks to provide full
equality for same-sex couples by amending the
marriage laws to allow for same-sex marriages.
In New Hampshire, the bill passed by a more
substantial majority in the lower house than the
upper house, where the vote was 13-11, and
several amendments were necessary for Senate
passage, mainly to clarify and make a bit more
expansive the religious exemption and to make
a careful distinction in the law between civil
marriage and religious marriage. At the end of
April, same-sex marriage supporters were confident that the House would agree to pass the
Senate version, but the governor remained a
May 2009
question-mark. Unlike Vermont’s governor,
New Hampshire Governor John Lynch did not
issue a veto threat, but was on record believing
that the Civil Union Act was sufficient to
achieve the necessary state law equal rights for
gay couples. A law can be enacted without the
governor’s signature in New Hampshire.
The Maine vote, 21-14, was an end-of-month
surprise, coming just shortly after the measure
was approved by a substantial margin in the
joint Judiciary Committee meeting after a
lengthy public hearing attended by thousands
of residents. As in New Hampshire, Maine
marriage supporters were cautious about what
Governor Balducci might do, as he had previously signaled opposition to same-sex marriage
but had not issued a veto threat during consideration of LD 1020. Thus, the month of April
ended on another cliff-hanger note, with the
possibility that two more states might enter the
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same-sex marriage column during May, but
also the possibility that further progress would
not be made immediately.
Thus far, two American governors, vote Republicans, have vetoed same-sex marriage
bills, but the only same-sex marriage bill
signed into law by the end of April 2009 was
signed by a Republican governor. The question
of how the Republicans, up to now on record as
staunchly opposed to same-sex marriage, might
function in period when public opinion seems
to be moving in a supportive direction, began to
be debated openly in April, as John McCain’s
daughter as well as a former official of his campaign called for the Republican Party to be
more open to this issue, and Pennsylvania
Senator Arlen Specter, normally a supporter of
gay rights legislation on the federal level,
switched his allegiance to the Democratic
Party, making it less likely that Republicans
could block a Senate floor vote on various pending gay rights measures in that chamber. A.S.L.
LESBIAN/GAY LEGAL NEWS
Colorado Enacts Designated Beneficiary
Agreement Law for Unmarried Couples
Apparently inspired by the example of Hawaii,
which adopted its “Reciprocal Beneficiaries”
Law in 1997 at the same time that its legislature
placed on the ballot a constitutional amendment intended to authorize the legislature to
deny the right to marry to same-sex couples, the
Colorado legislature and Governor Bill Ritter
have enacted the Colorado Designated Beneficiary Agreement Act, HB 09-1260, which will
provide a legal status accompanied by a list of
legal rights and benefits for unmarried couples
(both same-sex and different-sex). The measure, which adds a new Article 22 to Title 15 of
the Colorado Revised Statutes, was signed on
April 9 and takes effect on July 1, 2009.
The legislative findings assert that “not all
Coloradans are adequately protected by existing statutes” intended to provide default rules
for estate planning purposes, and thus the legislature is amending and supplementing those
laws to provide certain protections and benefits
to unmarried couples who designate each other
as beneficiaries. The findings section also calls
for liberal construction of the statute to give effect to the purposes articulated in the findings.
The measure provides that execution of various
specific estate planning documents, such as a
will or a medical power of attorney, subsequent
to the execution of a designated beneficiary
agreement will override the terms of the designated beneficiary agreement. Only unmarried
couples can enter into designated beneficiary
agreements.
The effects and applicability of entering into
such an agreement are spelled out in summary
form in what will be Colo. Rev. Stat. 15-22-105,
and include the right to own property in the
same joint form as married couples, to be designated a beneficiary, payee or owner as a trustee
named in an inter vivos or testamentary trust for
the purposes of avoiding probate, to be a beneficiary under public employee retirement and
pension and health insurance plans, to be a
designated beneficiary under workplace health
plans to the extent that an employer wishes to
include designated beneficiaries (the state
can’t compel this for private sector employers
due to federal ERISA preemption), the right to
petition for and have priority for appointment as
a conservator, guardian, or personal representative, to visit in a health care institution, to be a
proxy decision-maker on medical treatment
and end-of-life decisions, to act as an agent under the uniform anatomical gift act, to inherit
through intestate succession, to receive spousal
benefits under workers compensation, to bring
wrongful death actions, to make after-death
bodily disposition decisions. The measure
takes to care to limit the right of designated
beneficiaries to those enumerated in the statute, and eschews the use of designated beneficiary agreements to provide intent to form a
common law marriage.
The statute provides a form of agreement under which couples who wish to designate each
other as beneficiaries will indicate by initialing
their agreement to each of the rights spelled out
in the statute, so there is a permanent record,
and evidently designated beneficiaries can
thus tailor their agreement to include as many
or as few of the rights as they desire. The agreements will be filed and recorded with county
clerks, and will be held as open records subject
to public inspection. A form is also provided for
revoking such agreements. Agreements termi-
nate upon the death of one party, except to the
extent that the agreement designated particular
rights that normally would be exercised after
the death of one party, such rights would survive.
After itemizing the various rights, the statute
sets out specific amendments to provisions of
the probate code and other laws required to facilitate the recognition of designated beneficiaries. See BNA Daily Labor Report No. 70, A-2
(April 15, 2009).
While this legislation falls far short of samesex marriage or even civil unions or state level
domestic partnerships, it is at least a start towards providing legal recognition and support
for same-sex partners who are serious about
their relationship and desire some of the rights
and responsibilities that would come with marriage. A.S.L.
Washington Expands Domestic Partnership Law
The state of Washington enacted amendments
to its Domestic Partnership Law intended to
provide full legal equality under the state law to
same-sex couples who register as domestic
partners. The amendments add the following
declaration to the existing law: “It is the intent
of the legislature that for all purposes under
state law, state registered domestic partners
shall be treated the same as married spouses.
Any privilege, immunity, right, benefit, or responsibility granted or imposed by statute, administrative or court rule, policy, common law
or any other law to an individual because the individual is or was a spouse, or because the individual is or was an in-law in a specified way to
another individual, is granted on equivalent
terms, substantive and procedural, to an indi-
84
vidual because the individual is or was in a
state registered domestic partnership, related
in a specified way to another individual. The
provisions of this act shall be liberally construed to achieve equal treatment, to the extent
not in conflict with federal law, or state registered domestic partners and married spouses.”
The bulk of the enactment consists of a
lengthy act with more than a hundred sections,
each inserting into some existing statute a boilerplate paragraph providing that registered
domestic partners be treated the same as married spouses for the particular purpose of law.
With its enactment, Washington makes up a
solid row of West Coast states providing nonmarital equivalents to marriage for same-sex
couples. In both California and Washington,
the present laws began as narrowly focused domestic partnership statutes with a limited list of
rights and responsibilities, and a requirement
of actual cohabitation for domestic partners,
which is a major departure from the civil union
concept, since civil unions, like marriages, do
not require the spouses to cohabit. (Indeed,
Oregon, which did not legislate in bits and
pieces but instead passed a domestic partnership law with full state law rights with no incremental legislative steps does not insist on cohabitation for registered partners.) All three
states — California, Oregon, and Washington,
call their legal status domestic partnership, and
California and Washington retain the cohabitation requirement.
One wonders how long it will be before either
the legislatures or the courts in Washington and
Oregon wake up to the equality claims that require full marriage, in name as well as right, for
there to be full equality. In California, the legislature has twice tried to achieve that, but was
stymied by the governor, purporting to apply the
people’s will as expressed in Prop 22’s ban on
same-sex marriage recognition. The Supreme
Court surmounted that barrier on May 15 last,
but the people responded on November 4 with
Proposition 8, whose final fate rests again before the Supreme Court, to be decided by early
June. A.S.L.
Justice Souter’s Retirement From Supreme Court
Unlikely to Affect Balance on LGBT Issues
The announcement at the beginning of May that
Associate Justice David Souter was planning to
retire from the United States Supreme Court
was unlikely to shift the balance of the court on
LGBT legal issues. Souter, who was appointed
by President George H.W. Bush to the seat vacated by William J. Brennan, Jr., was an unknown quantity on the national scene at the
time of his appointment, a former New Hampshire Attorney General and Supreme Court justice who had recently taken a seat on the U.S.
Court of Appeals for the 1st Circuit but had yet
to generate a body of appellate decisions on
May 2009
federal constitutional and statutory issues.
President Bush had appointed him on the recommendation of New Hampshire Republicans
who assured the president he would be a safe,
conservative pick.
Souter surprised the Republicans, however,
by aligning himself with the moderates on the
Supreme Court. On the major LGBT rights
cases decided during his time on the Court, he
sided with the pro-gay majorities in Romer v.
Evans and Lawrence v. Texas, and wrote a progay dissent in Boy Scouts of America v. Dale.
Although he wrote for a unanimous court rejecting a gay organization’s claim to participate in
the Boston St. Patrick’s Day Parade under its organizational banner in Hurley v. Gay & Lesbian
Irish-American Group of Boston, his opinion
was widely hailed as the first by the Supreme
Court to exhibit empathy for the gay rights litigants and to use respectful terminology in discussing their legal position. The opinion also
acknowledged the political legitimacy of the
message that GLIB was seeking to communicate by its participation, while holding that the
sponsoring organization of a quintessentially
expressive activity such as a parade is entitled
to control the content of any message sent by
the parade, a holding that can benefit Gay Pride
organizers in seeking to exert control over messages sent from their events as well.
It seems unlikely that President Barack
Obama would nominate a new justice to the
Souter/Brennan seat whose views on LGBT issues — equal protection, due process/privacy,
freedom of speech and association — would
differ significantly from those of Justice Souter.
The LGBT issues most likely to come before the
Court over the next few years would include the
military “don’t ask, don’t tell” policy if it is not
voluntarily altered by the political branches,
the constitutionality of the Defense of Marriage
Act, also if it is not voluntarily repealed by the
political branches, and the routine unequal
treatment of LGBT partners by federal agencies. As of May 1, the White House had not yet
announced the president’s choice. A.S.L
10th Circuit Rejects Gay Stereotyping in
Immigration Case
A gay Moroccan man won his quest for reconsideration of a decision in which an Immigration Judge had rejected his request for withholding of removal from the US on the ground
that he didn’t “look gay” and thus was unlikely
to be persecuted if returned to the Islamic nation. Razkane v. Holder, 2009 WL 1058053
(10th Cir., April 21, 2009).
According to the opinion by Circuit Judge
Murphy, the petitioner credibly testified that a
neighbor had held a knife to his neck and told
him that his “death is better than your life because you are gay,” but the Immigration Judge
held this did not count as persecution because
Lesbian/Gay Law Notes
the neighbor’s family later apologized for his
actions. The court recounted that petitioner
“was haunted by fear of more attacks, social ostracism, family rejection, and imprisonment
because of his sexual orientation,” and sought a
way to come to the US to study, eventually gaining entry under the Fulbright program. He overstayed his visa and by the time Homeland Security caught up with him, an asylum petition
was untimely, so he was left to seek withholding
of removal or relief under the Convention
Against Torture, both of which were denied by
the IJ and the Board of Immigration Appeals.
The petitioner showed that Morocco is an
“overwhelmingly Islamic country,” his expert
witness testified that “most orders of Islam, including those practiced in Morocco, view homosexuality as an abomination, a violation of
the natural order intended for mankind by Allah,” and that Moroccan law makes homosexual conduct a crime. The petition provided evidence that gays are imprisoned for something
as innocent as flirting with or socializing with
others, that “those suspected of being homosexual have been harassed, beaten, raped and
even killed,” that “police protection of homosexuals is often non-existent,” and that “it is
common for the police to harm, beat or rape
with impunity the people whom they see as vulnerable because of sexual orientation.”
Analyzing petitioner’s claim for withholding
of removal, “The IJ first determined that [he]
had not been subjected to past persecution because the attack he suffered had not resulted in
injury and the family of the assailant apologized.” Evidently psychological injury, emotional distress, and being put in fear of your life
don’t count.... On the likelihood of future persecution, the IJ found that despite the evidence
mentioned above, the petitioner “could not
show his status as a homosexual would likely
lead to persecution in Morocco,” finding that
his “appearance does not have anything about
it that would designate [him] as being gay. [He]
does not dress in an effeminate manner or affect
any effeminate mannerisms.” In other words,
as far as this IJ was concerned, anybody who
does not conform to some effeminacy stereotype associated with gay men would be safe
from persecution in Morocco.
Rejecting this approach, Judge Murphy
wrote for the court, “In determining whether
[petitioner] would be identified as a homosexual, however, the IJ relied on his own views of
what would identify an individual as a homosexual rather than any evidence presented.
Specifically, the IJ found there was nothing in
[petitioner’s] appearance that would designate
him as being gay because he did not ‘dress in an
effeminate manner or affect any effeminate
mannerisms.’” Judge Murphy then noted a recent 2nd Circuit ruling criticizing such an approach, Ali v. Mukasey, 529 F.3d 478 (2nd Cir.
2008), as well as an earlier 8th Circuit ruling to
Lesbian/Gay Law Notes
the same effect, Shahinaj v. Gonzales, 481 F.3d
1027 (8th Cir. 2007). In both cases, circuit
courts had been critical of IJs relying on their
own stereotyped images concerning effeminate
gay men in rejecting likelihood of future persecution claims.
“The IJ’s homosexual stereotyping likewise
precludes meaningful review in this case,”
wrote Judge Murphy. “The IJ’s reliance on his
own views of the appearance, dress, and affect
of a homosexual led to his conclusion that [petitioner] would not be identified as a homosexual.
From that conclusion, the IJ determined that
[petitioner] had not made a showing it was more
likely than not that he would face persecution
in Morocco. This analysis elevated stereotypical assumptions to evidence upon which factual inferences were drawn and legal conclusions made. To condone this style of judging,
unhinged from the prerequisite of substantial
evidence, would inevitably lead to unpredictable, inconsistent, and unreviewable results.
The fair adjudication of a claim for restriction
on removal is dependent on a system grounded
in the requirement of substantial evidence and
free from vagaries flowing from notions of the
assigned IJ. Such stereotyping would not be tolerated in other contexts, such as race or religion. . . As a consequence, remand is necessary
so that all findings are based on evidence and
subject to meaningful review.”
The court also stated, “If on remand the BIA
concludes further consideration by an IJ is warranted, this matter should be reassigned to a
different IJ,” citing two prior court of appeals
rulings similarly instructing the BIA to reassign
matters to a new IJ to ensure an “unbiased proceeding.” The court also noted that the court
had entered a temporary stay of removal, and
indicated that this would be in effect “while
this court has jurisdiction and will expire upon
issuance of the mandate.”
The petitioner is represented by Jayne E.
Fleming of the Oakland, California, office of
Reed Smith LLP. A.S.L.
New York Surrogate Approves Second-Parent
Adoption of Child by Its Genetic Mom
In an April 9 ruling on an adoption petition,
New York County Surrogate Court Judge Kristin Booth Glen took the virtuosic navigation
route, deciding that she had jurisdiction (despite some formal roadblocks) to issue an adoption order for a lesbian co-parent who is also the
biological mother (but not the birth mother) of
her child. In the Matter of the Adoption of a
Child Whose First Name is Sebastian, 2009 WL
1141728, 2009 N.Y. Slip Op. 29182. If this
sounds strange, read on...
The parents are Ingrid and Mona. Ingrid is a
Dutch citizen who works as an international
lawyer at a New York City firm. Mona, of Somali/Yemeni heritage, had “an international
May 2009
upbringing” and works at the United Nations.
The women were married in The Netherlands in
2004. They wanted to start a family, and undertook the following procedure: Mona donated
her ova, which were fertilized in vitro by an
anonymous sperm donor, and then a resulting
fertilized embryo was implanted in Ingrid’s
uterus. The women’s intent, of course, was that
they would both be mothers of the resulting
child, legally and emotionally and every other
way. The child was born in January 2008. Ingrid is the birth mother, and her name is recorded on the birth certificate. Mona is the genetic mother, but her name is not on the birth
certificate. At the time when Sebastian was
born, no New York court had yet recognized a
same-sex marriage. A few days later, however,
the 4th Department decided Martinez v. County
of Monroe, holding that New York would recognize a same-sex marriage contracted in Canada; presumably, New York would apply the
same principles of international comity to recognize a same-sex marriage contracted in the
Netherlands.
In any event, Mona petitioned the Surrogate’s Court to adopt the child. This presented a
puzzle for Surrogate Glen. Since when does a
genetic parent have to petition to adopt her own
genetic offspring? Furthermore, since a New
York court will now recognize her marriage to
the birth mother, one might argue that she is already the child’s legal parent, under the presumption that a child born to a married woman
is the offspring of the birth mother’s spouse. But
such a presumption seems counter-intuitive in
the case of a same-sex female couplem, unless
one takes into account in vitro fertilization and
gestational surrogacy (that is, surrogacy where
the birth mother is not also the genetic mother,
because somebody else’s fertilized ovum is implanted in her uterus to commence the pregnancy). Is this getting complicated?
Surrogate Glen pointed out that, strictly
speaking, no adoption should be necessary
here, and it could even be argued that an adoption would not be appropriate, since Mona is already the child’s biological mother, and under
recently announced procedures, should be able
to secure a new birth certificate for Sebastian
showing both Ingrid and Mona as parents. The
problem? What may work in New York State
may not necessarily be recognized outside the
state.
With a handful of exceptions, almost every
U.S. state has now either legislated against recognizing same-sex marriages or adopted constitutional amendments to the same effect, so it
is not certain that if Ingrid and Mona and Sebastian were to travel outside of New York, their
legal familial relationships would be automatically recognized. Of course, they would in Connecticut and Iowa, as of now, and perhaps in
Vermont as of September 1, or maybe even in
the civil union and domestic partnership juris-
85
dictions now, but that’s uncertain, as, for example, New Jersey’s attorney general takes the position that foreign marriages are only treated as
civil unions in New Jersey, although at least one
court has disagreed and recognized a Canadian
same-sex marriage for purposes of divorce jurisdiction.
In any event, argued Carol Buell, the attorney for Mona, the best way to make sure that
Mona’s parental relationship to Sebastian is
recognized would be for the court to issue an
adoption order, which would be entitled to full
faith and credit when they travel outside New
York. There are a few decisions so far holding
that gay adoptions are entitled to full faith and
credit, even in states that have legislated
against recognition of same-sex marriages.
Surrogate Glen determined that there would
be an equal protection violation if Mona were
not allowed to have her parental rights recognized the same way that a genetic father’s rights
would be recognized in a filiation proceeding,
for she is “similarly situated” with respect to
the relevant factual issues, so there is no question that Mona can claim to be Sebastian’s parent. As a pragmatic matter, Surrogate Glen concluded that granting the adoption was in the
best interest of the child, even though such an
adoption is not necessary for Mona’s parental
status to be recognized within New York. As a
side-note, she also explained that granting the
adoption order was really the only relief the
Surrogate’s Court could provide, since other legal devices that might be available were within
the jurisdiction of the Family Court, not the Surrogate’s Court.
The opinion is extraordinary, a work of
wide-ranging legal scholarship touching on
many interesting subsidiary issues, and a gold
mine of valuable legal research (55 footnotes,
many substantive citing a wider range of
sources). And here is an example of creative
judging, by contrast to the decision issued the
same day by the Appellate Division, 1st Department, in Debra H. v. Janice R., 2009 NY
Slip Op 02723 (April 9), discussed in a separate article. Indeed, the Debra H. ruling gives
another reason why this adoption is necessary
to protect the parental rights of Mona, notwithstanding her de facto, psychological and genetic motherhood of Sebastian. It seems, at
least in the 1st Department, that an adoption is
the best way to ensure that if Ingrid and Mona
ever decide to end their relationship, Mona
would be assured if being able to maintain her
parental relationship with Sebastian.... Or, do
we have that backwards? Should Ingrid also be
adopting the child to whom she gave birth but to
whom she bears no genetic relationship? Oh,
my! This is getting too complicated. A.S.L.
86
Gay Former Employee Can Sue for Retaliation
but Not Sexual Orientation Discrimination
Patrick Riscili, a former employee of Gibson
Guitar, recently brought claims for discrimination on the basis of sexual orientation and unlawful retaliation against Gibson. On March
26, U.S. District Judge Richard J. Holwell of the
Southern District of New York upheld the claim
for unlawful retaliation but granted Gibson’s
motion for summary judgment as to the underlying discrimination claim. Riscili v. Gibson
Guitar Corp., 2009 WL 792304 (S.D.N.Y. Mar.
26, 2009).
Riscili was an entertainment representative
at Gibson, having been brought over from Baldwin Pianos when that company went bankrupt.
At a night-time work event, Lou Vito, a coworker of Riscili, began mimicking Riscili behind his back, portraying him as an exaggerated, stereotyped gay man. Riscili, not wanting
to create a scene at the event, waited to confront
Vito the following day. Riscili and Vito’s boss
heard about the incident and approached Riscili, who discussed the previous night’s events
with her but asked her not to report Vito so that
Riscili could informally take care of the situation himself. Shortly thereafter, Riscili began
receiving negative reviews for the first time and
was eventually let go four months later.
In its summary judgment motion, Gibson
first argued that Riscili could not state a claim
for retaliation because he did not engage in a
protected activity and could not reasonably believe that Vito’s actions violated the law. Since
Riscili was contacted by his employer and did
not affirmatively reach out to report the incident, Gibson argued, Riscili was not doing anything sufficiently “active.” Judge Holwell disposed of this argument by noting that a recent
decision by the United States Supreme Court
upheld a retaliation claim even though the
plaintiff’s actions could be classified as “completely passive.”
Judge Holwell also found that a jury could
find that Riscili reasonably believed that Vito’s
actions were unlawful. To make a claim for unlawful retaliation, a plaintiff must reasonably
believe that the underlying activity upon which
retaliation was sought was protected by antidiscrimination statutes (i.e., lodging a complaint with one’s employer after being illegally
discriminated against). The evidence showed
that Riscili’s boss contacted him in reaction to
Vito’s actions. Judge Holwell held that an employer’s unprovoked questioning could cause
Riscili to infer that his supervisor thought the
law had been violated by Vito’s actions, making
it reasonable for Riscili himself to think so.
Gibson’s argument that the four-month delay
between Vito’s actions and Riscili’s termination shows a lack of causal connection was disposed of quickly by Judge Holwell, who noted
that Riscili’s treatment by his employers
May 2009
soured almost immediately after the incident
and continued until termination. Judge Holwell also held that Riscili had submitted sufficient evidence to show that Gibson’s proffered
reason for Riscili’s termination, that he did not
adapt to Gibson’s business culture, was pretextual. Thus, Riscili’s claim for unlawful retaliation survived Gibson’s motion for summary
judgment.
Judge Holwell next turned to Riscili’s discrimination claim, noting that Riscili only offered evidence of discrimination based upon
his one observance of Vito but not based upon a
“larger culture of discrimination” at Gibson.
Vito’s one-time behavior at the event, as noted
in the earlier proceeding dismissing Riscili’s
other claims, could not sustain a discrimination
claim absent a showing of other similar incidents. Also, Riscili could not prove that the
events showing unlawful retaliation also supported a claim for discrimination. The record
showed that Riscili’s employers were well
aware of his sexual orientation long before Riscili suffered any adverse treatment. That alone,
Judge Holwell held, was enough to show that
Gibson did not discriminate against Riscili
based on his sexual orientation. “When all is
said and done,” Judge Holwell concluded, “
this is a retaliation case.” Chris Benecke
In Same-Sex Sexual Harassment Case, S.D.N.Y.
finds Sufficient Evidence of Gay Harasser
On March 27, 2009, Judge Seibel of the United
States District Court for the Southern District of
New York found that a security officer at a nuclear power plant had alleged sufficient facts of
repeated incidents of same-sex sexual harassment in the workplace to overcome his employer’s motion for summary judgment on his Title
VII hostile work environment claim. Tepperwien v. Entergy Nuclear Operations, Inc., 2009
WL 807575 (S.D.N.Y. Mar. 27, 2009). Judge
Seibel found that plaintiff had shown sufficient
evidence to raise a genuine issue of material
fact as to whether his harasser is homosexual,
as required by the case law in same-sex sexual
harassment claims. Significantly, the court was
not concerned that plaintiff previously did not
believe that his harasser was gay, finding that
the question “is simply whether credible evidence exists sufficient to raise a genuine issue
as to whether [the harasser] acted out of sexual
desire in harassing Plaintiff.” Plaintiff also
claimed retaliation and constructive discharge,
but the court granted summary judgment for the
defendant employer on these claims.
To establish a prima facie claim of sexual
harassment based upon a hostile work environment, plaintiff must prove that his workplace
was so saturated with intimidation that it was
“sufficiently severe or pervasive to alter the
conditions” of his work environment. In addition, plaintiff must prove that there is a specific
Lesbian/Gay Law Notes
reason to impute such conduct to his employer.
In cases of alleged same-sex sexual harassment, the court noted that a male plaintiff must
show that he was harassed because he is a man.
Citing the Supreme Court in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75
(1998), the District Court added that plaintiff
must present some evidence that the harasser is
homosexual. There is no bright line rule regarding the type of evidence required to prove
that a harasser is homosexual, but the court recognized that several Circuit Courts require
plaintiff to either present evidence that the harasser intended to have sexual contact with
plaintiff, or that the harasser has made homosexual sexual advances to others.
In this case, James Tepperwien (plaintiff)
was employed by Entergy Nuclear Operations,
Inc. (defendant), which owns and operates
many nuclear power plants in the northeastern
United States. Tepperwien’s claim was based
on several incidents of alleged same-sex harassment in the workplace by fellow Entergy security officer, Vito Messina.
Tepperwien first reported an incident in
which Messina allegedly sexually assaulted
him by pushing him against the wall, grabbing
his buttocks, and “driving his nails” in. After
he reported this alleged incident, a senior HR
representative interviewed Tepperwien and encouraged him to remain anonymous throughout
the investigation of his complaint. Tepperwien
agreed to this, but claimed that he was unaware
that by remaining anonymous his complaint
would be less thoroughly investigated.
In addition to the alleged assault, Tepperwien told the HR representative that Messina
had made comments regarding “trying a man”
and told Tepperwien that he “turned [him] on.”
The HR representative also interviewed other
security officers and Messina, but they were
only asked general questions regarding observation of or participation in any inappropriate
sexual behavior. Messina denied having engaged in or witnessing any such behavior. In response to Tepperwien’s complaint, Entergy circulated a memo to all security personnel stating
that Entergy “will not [] tolerate” discrimination or harassment. Each of the employees
signed this memo to indicate that they read and
understood it. Messina was also removed from
his role as an instructor at the rifle range, and
all of the security personnel were required to attend a mandatory training on Entergy’s harassment prevention policy.
Nine months after the first alleged incident,
Tepperwien reported that Messina made sexual
remarks and stroked his hair and neck during a
ride in a security car. The day after Tepperwien
reported this incident, Messina was placed on
paid administrative leave for ten weeks.
Messina was sent for a psychological evaluation to determine his fitness for duty as a security officer at a nuclear facility. After ten weeks,
Lesbian/Gay Law Notes
Messina returned to work, having passed the
psychological evaluation. Messina was issued
a “Letter of Discipline” stating that he would be
fired if he failed to comply with Entergy’s harassment prevention policy. Tepperwien was not
satisfied with these actions and wanted
Messina fired.
In addition to these two reported incidents,
Tepperwien alleged several additional incidents of harassment by Messina which contributed to a hostile work environment. Tepperwien claimed that, in front of a group of
co-workers, Messina questioned whether Tepperwien would have sex with another man. He
also claimed the Messina made suggestive
comments indicating that Messina could “take
care of” Tepperwien at work. Finally, Tepperwien alleged that Messina remarked to a group
that Tepperwien was “turning [him] on,” and
asked Tepperwien “why can’t I excite you?”
The court’s totality of the circumstances
analysis was crucial to its holding. Under this
analysis, the court must assess the alleged harassment based on the context in which it occurred. Thus, the fact that Tepperwien and
Messina were armed security guards at a nuclear power facility, approximately 30 miles
from Manhattan, placed the context of the alleged harassment in a highly sensitive work environment. To make matters worse, Messina
was a shooting range instructor for the security
guards at the nuclear facility. In such an environment, the court noted that acts of harassment that undermine a plaintiff’s sense of personal safety gain greater significance. Thus,
based on the totality of the circumstances, the
court found that the evidence was sufficient to
raise a genuine issue of material fact that
Messina’s behavior toward Tepperwien was
based on his sex. In addition, the court found
that there was a genuine issue of material fact
as to whether Messina was a supervisor, which
would have an effect on the defenses available
to Entergy and whether Messina’s conduct can
be imputed to Entergy. Ruth Uselton
A Few Incidents, or Only a Single Incident, of
Male-on-Male Sex Harassment Can Make Out
Federal Case
A case of male-on-male sexual harassment under the federal sex discrimination statutes does
not require an extensive pattern of harassing incidents. It may arise out of a few incidents at a
workplace, or even just a single incident, in order to hold an employer liable, held Judge Patricia C. Fawsett of Florida’s U.S. Middle District. U.S. EEOC v. Dillard’s Inc. , 2009 WL
789976 (M.D. Fla. Mar. 23, 2009). However,
such incidents are not sufficient to require the
employer to pay punitive damages to the Equal
Employment Opportunity Commission.
Dillard’s Department Store in Orlando employed James Hines as a manager. A few em-
May 2009
ployees alleged that Mr. Hines made aggressive
sexual advances toward them and performed
sexual acts in front of them. For example, Paul
Reed, who worked at Dillard’s for 6 months in
2005, told the EEOC that Hines lured Reed to a
back storeroom and masturbated in front of
him. When Reed asked what he was doing, Hines replied, “You know you want it.” Reed denied “wanting it,” and reported the incident to
Hines’ manager, Gerald Coffey, who minimized
the problem and took no action against Hines.
Another time, Hines came up behind Reed at a
urinal, grabbed Reed’s penis, and started turning Reed around. Reed pushed Hines away. Hines often referred to Reed as his “bitch.” Another employee, Scott Giacomin, complained
that Hines took him to a break room and started
masturbating in front of him, attempting to get
Giacomin to join him. Giacomin told Coffey,
who told his district manager, William Appleby,
who ordered that Hines be fired. Coffey fired
Hines. Hines’ termination form indicated that
Hines had previously been reprimanded for
sexual harassment against another employee,
who had reported that Hines had retaliated
against him for refusing sexual advances.
Giacomin left Dillard’s in August 2005, indicating that he was leaving due to school; in his
deposition for the EEOC action, he stated that
he quit because he was uncomfortable after the
Hines incident. Reed left in June 2005 immediately after the urinal incident, and because of
the attack.
Dillard’s harassment policy states that any
supervisor who receives a report on sexual harassment must inform the supervisor at the next
higher level, without making any judgment
about the validity of the report. Each complaint
must be investigated. Employees are encouraged to contact supervisors about harassment
incidents, and to contact supervisors at the next
level if the immediate supervisor’s action is not
sufficient.
Judge Fawsett’s decision was in response to
Dillard’s motions for summary judgment,
which were based on the EEOC failing to present an issue for the jury to determine, and in opposition to the availability of punitive damages.
For the case to go to a jury, the court had to find
that a jury could believe that Reed and Giacomin suffered a hostile work environment
based on their sex, and that they were constructively discharged because of the hostile work
environment.
Judge Fawsett easily found that the EEOC
had made out a case of hostile work environment based on sex (i.e., they were harassed because they were male), and that one of the employees, Reed, had been constructively
discharged (i.e., it was reasonable for Reed to
leave his employment based on such harassment, and that was in fact that reason for his
leaving).
87
The most contentious issues, and those contested by Dillard’s, were (1) whether the harassment was “sufficiently severe or pervasive
to alter the terms and conditions of employment
and create a discriminatorily abusive working
environment”; and (2) whether Dillard’s could
be held liable. The Eleventh Circuit has two
parallel tests for the seriousness of sexual harassment: under the “objective” test, the court
considers, from the point of view of a reasonable
person, (a) the frequency of the conduct, (b) its
severity, (c) whether it is physically threatening
or humiliating, or merely offensive, and (d)
whether it unreasonably interferes with the employee’s job performance. However, the four
objective factors are not relevant if, under the
totality of the circumstances, the conduct was
sufficiently severe or pervasive to alter the
terms of employment.
Judge Fawsett found Hines’ conduct toward
Reed to be sufficiently severe to constitute sexual harassment that altered the conditions of
employment, even though the number of incidents was relatively few. However, Judge Fawsett could find no precedent for finding that a
single incident of sexual harassment, as occurred to Giacomin in the break room, was sufficient to constitute sexual harassment. Nevertheless, the severity of the incident involving
Giacomin, in which Hines lured him to the
room, attempted to get Giacomin to participate
in mutual masturbation, and then masturbated
in front of Giacomin, was sufficient to constitute, on its own, actionable sexual harassment.
The judge noted that Giacomin complained after the incident that he feared retaliation after
informing on Hines, and the he felt uncomfortable and paranoid during the remainder of his
employment at Dillard’s.
In its defense against liability, Dillard’s attempted to assert the affirmative defense that
(a) it exercised reasonable care to prevent and
correct any sexually harassing behavior, and
that (b) the employee unreasonably failed to
take advantage of preventive or corrective opportunities provided by the employer. The first
element of the defense requires that an effective policy exists that is actually implemented
by the employer and is sufficiently publicized;
the second element requires that the employee
follows the established procedures.
The judge held that Dillard’s could not avail
itself of either element of the defense. Its employees were only required to report harassment incidents to one supervisor, who had the
duty to report the incident up the supervisory
chain until it reached the level where a manager or corporate officer could start an investigation. Both Reed and Giacomin sufficiently
reported the incidents, as required. And, although Dillard’s had an adequate policy, Dillard’s did not implement the policy in the case
of the reports against Hines. First, Dillard’s had
taken no action in response to accusations
88
against Hines, revealed in Hines’ termination
papers, which preceded the complaints by
Reed. Second, Reed complained twice against
Hines only to be rebuffed by Coffey; it was only
after the third incident, involving Hines grabbing Reed’s penis, that Coffey took action. According to the policy, Coffey had an unconditional responsibility to report the incidents to
the general counsel’s office, which Coffey did
not do. Thus, Dillard’s had not properly implemented the policy.
An action for constructive discharge may
only be brought if the victim of harassment actually left his job because of the harassment,
and if such action was reasonable. Judge Fawsett found it evident that Reed left because of
the harassment, based on the timing of his exit
and his statements, and found it reasonable for
him to do so. However, Giacomin’s departure,
which occurred over a month after the incident,
seemed to be because of school rather than because of the harassment. The judge could find
no case law finding a constructive discharge
based on one incident of harassment. Thus,
Dillard’s was entitled to summary judgment on
Giacomin’s complaint. The judge did not, however, foreclose the possibility that a single incident could be the reason for a constructive discharge.
Dillard’s was also entitled to summary judgment on the issue of whether punitive damages
would be available. Punitive damages could
only be assessed if the store had constructive
knowledge of the harassment; to prove constructive knowledge, the EEOC would need to
show either that the harassing employee was
high up in the corporate hierarchy, or that upper
management condoned his behavior. Coffey’s
mere failure to report the harassment, under
this standard, was not sufficient to support punitive damages, nor were Hines’ or Coffey’s positions high enough for the harassment to be
imputed to the corporation.
Thus, the EEOC may go forward on Reed’s
complaint of constructive discharged based on
sexual harassment, but not on Giacomin’s.
Note: Some additional facets of the case
should be noted related to gay men bringing
federal claims of sexual harassment. First, the
judge identified Reed as a gay male, but noted
that federal law does not recognize discrimination based on sexual orientation. However, this
case was based on sex discrimination, i.e., that
Reed was singled out because he was a male,
and hence, a member of a suspect class.
Second, one of Reed’s allegations was that
Hines’ calling him a “bitch” was an incident of
sexual harassment. However, Dillard’s claimed
that use of the word “bitch” was based on
Reed’s being gay, and not on his being a male;
hence, it was an incident of sexual orientation
discrimination, not sex discrimination, and
thus was not illegal under federal law. But
Judge Fawsett determined that Reed was called
May 2009
“bitch” because he was a male homosexual,
and Hines would not have used this term had
Reed been a lesbian. Thus, the comments were
related to Reed’s status as a male, not his status
as a homosexual. Alan J. Jacobs
Intersexual Suffers Dismissal of Suit on Prison
Misclassification
In Tucker v. Evans, 2009 WL 799175
(E.D.Mich., March 24, 2009), U.S. District
Judge Robert H. Cleland denied a motion for
reconsideration of dismissal in a Section 1983
civil rights action brought pro se by a formerlyincarcerated woman with Congenital Adrenal
Hyperplasia whom prison officials had placed
in a male facility. Plaintiff alleged deliberate
indifference in violation of the Eighth Amendment.
Congenital Adrenal Hyperplasia is a condition which “causes a hormonal imbalance
which typically results in females assuming
certain male characteristics,” including “ambiguous external genitalia” and facial hair.
Plaintiff repeatedly told prison officials that she
was a woman, but they ignored her pleas despite “her mother’s assertions, legal documentation,” and the assertions of a jail doctor following an examination.
As a result of their incorrect gender assessment, prison officials placed Tucker in the male
facility’s “alternative lifestyle ward” with gay
men and male-to-female transgender people.
“Though she was housed separately, during the
day the cell doors would unlock, giving Plaintiff
access to the common area with the other inmates,” the Plaintiff allegedt. Plaintiff also alleged that prison officials refused her request
that a female officer conduct all strip searches.
In her motion for reconsideration, Plaintiff
elaborated that “she was strip-searched multiple times by male deputies, out in the open, not
in private.’” Plaintiff alleged these experiences
caused her “psychological and emotional
harm.”
The Defendants justified their decision to
place Plaintiff in the male ward by noting Plaintiff’s “male appearance” and the fact that she
responded “not heterosexual” to a jail intake
question. The prior court agreed with Defendants, finding that “Plaintiff did not submit or
allege facts sufficient to prove that Defendants
knew that she was a female Plaintiff did not
even present facts sufficient to show that Defendants should have known she was a female.
Rather, and crucially, Plaintiff admitted that
she did not appear to be female. As she herself
put it several times, no one understood [her
condition].’” The court further found that
“while there exists some disagreement regarding certain events, such as the manner in which
Plaintiff presented herself to jail intake officials
no material facts were disputed.”
Lesbian/Gay Law Notes
In granting Defendants’ motion for summary
judgment, the previous court held that Plaintiff
had failed to meet the two requirements set out
in Farmer v. Brennan for a deliberate indifference claim: 1) that the deprivation be “objectively, sufficiently serious such that the prisoner is exposed to a substantial risk of serious
harm” and 2) that “the prison official must have
a state of mind reflecting a deliberate indifference to inmate health and safety.” Further, the
court found that Plaintiff had failed to allege
any physical injury, a requirement for bringing
a suit under the Eighth Amendment. “Thus,”
wrote Judge Cleland, “Plaintiff’s claims could
not survive summary judgment and, on reconsideration, she has failed to identify any palpable defect in this reasoning.” Daniel Redman
A Common Sense Ruling on Transsexual Birth
Certificate Change
Reversing an obtusely formalistic decision by a
San Francisco trial judge, a unanimous panel of
the California 1st District Court of Appeal ruled
that a California-born transsexual who lives out
of state can obtained a substitute California
birth certificate showing her current gender.
Somers v. Superior Court of San Francisco City
and County, 172 Cal.App.4th 1407, 92
Cal.Rptr.3d 116 (April 10, 2009). The San
Francisco trial judge was tripped up by the language of the statute authorizing issuance of new
birth certificates for transsexuals, Health and
Safety Code sec. 103425, which provides that
the petition for the new certificate be filed with
the court in the county where the petitioner resides.
In this case, it was impossible for Gigi
Somers to comply with the statute’s literal filing
requirement, because she resides in Kansas.
As related by Presiding Justice James J. Marchiano in his opinion for the court, Somers was
born in Los Angeles in 1941, and was issued a
birth certificate identifying her as male. In
2005, as a resident of Kansas, she underwent
gender reassignment surgery, and then obtained from the Leavenworth, Kansas, County
District Court a legal name change. She used
the name change order to obtain a Kansas driver’s license reflecting her new name and female
gender identity, and also has a Medicare card in
her hnew name and gender identity.
But she also wanted to obtain an appropriate
birth certificate. She consulted Kansas attorneys, who advised that Kansas law does not
authorize issuing new birth certificates to show
a change of gender, and, as one of them told her,
“Ms. Somers as a matter of law does not have
the ability in the state of Kansas to alter her
birth certificate because she is not a Kansasborn resident.”
In brief, only the state where one is born has
the authority to order officials to issue a new
certificate to replace the old one issued at the
Lesbian/Gay Law Notes
time of birth. So Somers filed a petition in
San Francisco Superior Court, seeking her new
birth certificate, including a declaration from
her doctor concerning the gender reassignment
surgery and a copy of her Kansas name change
order. She also filed a personal declaration and
a declaration from one of her Kansas attorneys,
stating that she could not obtain the relief
sought in her state of residence, Kansas, because California had issued her birth certificate.
Somers personally appeared at the hearing
on March 4, 2008, submitting herself to the jurisdiction of the California court, but Judge
William R. Gargano denied her petition, stating, “I still am having an issue with the residency here. I’m not totally convinced by the paperwork that we can overcome that.” Somers
appealed.
The California statute, as currently worded,
has the effect of discriminating between
California-born transsexuals who continue to
reside in the state and California-born transsexuals who have moved to other states. Given
the literal statutory filing requirement and the
formalistic interpretation of Gargano, California will provide new birth certificates for the
former and not the later. As such, this is not discrimination on the basis of gender identity, but
rather discrimination on the basis of residence
between persons otherwise similarly situated.
Justice Marchiano opined that in deciding
whether this violated Somers’ right to equal
protection of the law, the court had to determine
the level of judicial scrutiny, which is in turn
determined either by examining the classification used by the statute to see whether it invokes heightened or strict scrutiny, or by looking at the right involved to determine how
important it is.
“A birth certificate is a vital, primary source
of personal identification, necessary to obtain
other forms of identification such as a social security card or passport,” he noted. Thus the
right to obtain a birth certificate that adequately
reflects a person’s legal name and gender is significant.
“The right to travel from one state to another
is firmly embedded in our jurisprudence,’” he
wrote, quoting from Saenz v. Roe, 526 U.S. 489
(1999), and he noted that in Saenz the Supreme
Court found that this right included the right for
citizens of one state to be “treated as a welcome
visitor rather than an unfriendly alien when
temporarily present in the second State, and,
for those travelers who elect to become permanent residents, the right to be treated like other
citizens of the State.” He noted that courts have
struck down a wide range of residency requirements when they have impeded individuals
from asserting important rights, and also noted
the Maryland Court of Appeals ruling in In re
R.W. Heilig, 372 Md. 692 (2003), in which a
Maryland transsexual who was born out of state
May 2009
petitioned the Maryland courts for a declaration
of gender identity, and the state’s highest court
found that Maryland courts would have equitable jurisdiction to issue such a declaration, inasmuch as they had no authority to order officials of other states to issue new birth
certificates.
Justice Marchiano observed that “the requirement that individuals seeking a new birth
certificate under the section file their petition
in their county of residence acts to deny the
rights created under the statute to the classification of California-born transgender individuals who reside outside of California. . . Our review of the legislative history of section 103425
reveals no reason for the requirement that individuals seeking issuance of a new California
birth certificate file the petition in their county
of residence.”
Indeed, it would probably make more sense,
one imagines, to require that it be filed in the
county where the original certificate was issued, if any specific geographical filing requirement is to be made. The law was originally enacted in 1977, and as first introduced
in the legislature, had no such filing requirement, which was added through amendments
without explanation. (Indeed, an amendment is
pending in the legislature to address this problem by allowing the filing to take place in the
country where the petitioner was born.) The
court found that the statute “leaves an unfair
statutory lacuna by not providing a remedy for
persons born in California who now reside in a
jurisdiction where a petition for gender change
cannot be filed.”
“We discern no compelling state interest in
treating California-born transgender individuals who reside out of state differently from
California-born transgender individuals who
reside in California when either class seeks issuance of a new California birth certificate,”
Marchiano concluded. “Even if constitutional
rights were not implicated by this classification, we perceive no rational basis for the disparate treatment.” Thus, the court reversed the
trial court’s order and remanded the case “in
order that Somers’s petition for issuance of a
new California birth certificate under section
103425 be considered on the merits.”
The Transgender Law Center and Kristina
Wertz provided counsel for Gigi Marie Somers
on this successful appeal. A.S.L.
Federal Court Awards Maximum Damages in
Trans Discrimination Case Under Title VII
In Schroer v. Billington, 577 F.Supp.2d 293
(D.D.C., Sept 19, 2008), U.S. District Judge
James Robertson ruled that the Library of Congress violated Title VII’s ban on sex discrimination in employment when it rescinded a job offer to Diane Schroer, a military intelligence
veteran who had applied for a specialist posi-
89
tion in Terrorism and International Crime with
the Congressional Research Service for which
she was eminently qualified, after discovering
that Schroer was a transgender person in the
process of transitioning from male to female
gender expression. On April 28, Judge Robertson filed his ruling Schroer’s motion for posttrial relief, granting all the relief that was
claimed.
Schroer’s damage claim broke down to three
parts: back pay and lost employment-related
benefits, non-pecuniary losses (capped in the
statute at $300,000), and past pecuniary
losses, being out-of-pocket expenses incurred
as a consequence of the defendant’s unlawful
action. Robertson found that Schroer, who has
established a successful consulting business
after recovering from the psychologically difficult aftermath of the revocation of her CRS job,
had proven $183,653 damages for back pay
and benefits. Although Schroer has actually
earned more since the discriminatory event
than she would have earned at the Library of
Congress, she earned significantly less in the
first few years, and Judge Robertson, following
Title VII precedents, found that the court
should use the periodic mitigation method of
calculating damages, under which the plaintiff
is entitled to damages measured on a year to
year basis, with no credit to the defendant for
the years in which plaintiff’s earnings exceeded what she would have made at the Library.
More significantly, Robertson found that
Schroer was entitled to the maximum award for
non-pecuniary damages, based on the substantial evidence presented about the psychological impact on her of the job revocation, which
shook her confidence about the ability to handle her gender transition and be able to pursue
a professional career in her new identity. After
summarizing the expert and lay testimony offered on this point, Robertson concluded: “She
experienced the emotional pain and suffering of
losing her dream job merely because she was a
transsexual; the inconvenience of scrambling
to find adequate employment and achieve financial security; the mental anguish of
second-guessing the way she chose to disclose
her intent to present as a woman; and the loss of
enjoyment of life that comes from worrying
about whether her personal life stood in the way
of her professional success. An award of
$300,000 as compensation is appropriate and
certainly not excessive.”
Schroer had also proven out-of-pocket expenses for therapy and emergency dental work
“to address broken teeth. . caused by stresstriggered clenching and grinding in the aftermath of CRS’ decision.”
The total award is slightly under half a million dollars. Presumably the next ruling to
come in this case will be on attorneys fees. Diane Schroer was represented by the ACLU
90
LGBT Rights Project, with James Esseks, Ken
Choe and Sharon McGowan as the litigation
team. A.S.L.
Court Protects Witness Privacy in Trans
Discrimination Suit
Rebuffing counsel for the New York City Transit
Authority who sought to question a witness in a
discrimination action about his sexual orientation, New York State Kings County Supreme
Court Justice Robert J. Miller ruled that such
questioning would not be allowed as an unjustified invasion of the privacy of the witness.
Bumpus v. New York City Transit Authority,
2009 WL 1141401 (Table), 2009 N.Y. Slip Op.
50821 (unpublished) (April 28, 2009).
The plaintiff, Bumpus, a transgender
woman, alleges in the lawsuit that she was verbally harassed by a NYCTA employee while
she was waiting on a subway platform, and she
testified in a deposition that as a result of the incident, her two-year relationship with her male
partner had suffered. She testified: “Because I
had felt inadequate. The relationship for the
most part is functioning as a heterosexual relationship. This incident made me feel insecure
about who I was. I didn’t want him to touch me.
I didn’t want to be bothered because this whole
thing that me being trans and this issue, that
had not been issue, because an issue for me and
because of that, you know, I questioned myself.”
When Ms. Bumpus’s partner was deposed,
counsel for NYCTA sought to inquire into his
sexual orientation and the nature of his sexual
relationship with the plaintiff, and counsel objected, arguing that information to this depth of
privacy was not necessary for the case. Justice
Miller sided with the objectors, in language that
sounds indignant at times.
“The argument proferred by the NYCTA, at
best, can be described as psycho babble and, at
worst, described as allowing an inquiry that
buttresses and supports societal stereotypes
about various groups of people,” he wrote. “For
example, the NYCTA argues that in a loss of
consortium case involving an interracial couple, inquiry would be permitted into racebased assumptions about the nature of intimacy
with a black woman.’ Not content to argue for
unfettered inquiry into the beliefs and view of
an interracial couple or, as here, the alleged
identity issues in a relationship between a
transgender woman and her partner, the NYCA
also postures that inquiries about alleged loss
of consortium between two devout practicing
Catholics might look quite different.’ The
Court is constrained to speculate about the
views that the NYCTA holds which would lead
it to argue that the religious, racial or sexual
identity of the plaintiff or the plaintiff’s partner
is a permissible area of inquiry in a discrimination case. People are people whether gay or
May 2009
straight, black woman or white male, devout
Catholics or secular humanist. The filing of a
civil law suit is not a passport which allows exploration or invasion of the most intimate beliefs that a person may have based on half
baked psychology or timeless stereotypes. The
defendants are permitted to inquire into relevant facts regarding the sex life of the witness
and plaintiff which has been made an issue by
plaintiff, i.e., whether there was a sex life between plaintiff and Mr. Wilder prior to the incident, whether it changed post incident, and
how it changed.”
Miller found that any “probative value of the
proposed inquiry (and the Court finds that the
defendants have failed to identify same) is far
outweighed by the invasion of this non-party
witness’s privacy interest as well as the possible prejudicial impact of such testimony. This
court declines to accept defendants’ invitation
to allow an unprecedented inquiry into the private life of litigants. This is especially the case
where, as here, the defendants have already
had broad discovery of plaintiff’s medical records.” A.S.L.
Federal Civil Litigation Notes
2nd Circuit — A New York City Board of Elections employee’s claim that office talk by a gay
supervisor about his lunch dates and weekend
outings with his same-sex partner could not be
deemed to be harassment of the plaintiff, a female employee who holds condemnatory religious views about homosexuality. “Although
Marshall may have been legitimately offended
when her supervisor allegedly showed her a
sexual device he had purchased for his partner,
that one event does not rise to the severity necessary to constitute a hostile work environment,
not does it demonstrate that her workplace was
permeated with sex or gender intolerance,”
wrote the court in its summary order affirming
the decision by District Judge Kaplan disposing of the case in Marshall v. N.Y.C. Board of
Elections, 2009 WL 928083 (2nd Cir., April 7,
2009).
2nd Circuit — In Butler v. City of Batavia,
2009 WL 910194 (April 6, 2009), a 2nd Circuit panel issued a summary order affirming a
decision by William M. Skretny to dispose of a
claim that Batavia police were discriminating
against a lesbian couple in not responding adequately to their complaints about homophobic
behavior of a neighbor. The trial court had
found that generalized allegations of anti-gay
discrimination would not cite for a federal
equal protection or due process claim. Without
more concrete allegations tending to show
anti-gay animus by public officials, the court
would not entertain the claim.
9th Circuit — A gay asylum applicant struck
out before the 9th Circuit in Bustillo-Fuentes v.
Holder, 2009 WL 1028086 (April 13, 2009)
Lesbian/Gay Law Notes
(not selected for publication). As usual with
these brief memorandum decisions affirming
the Board of Immigration Appeals, the court’s
opinion is tantalizingly cryptic about the facts.
It appears that the petitioner, a gay man from El
Salvador, was “firmly resettled in Spain” before
coming to the U.S. He was traveling on a Spanish passport and was considered a Spanish national because of his father’s citizenship in that
country. Thus, the court implied, regardless of
the situation he had previously faced in El Salvador, he was not entitled to asylum in the U.S.
because he could freely live in a gay-friendly
country. On the point of withholding of removal, the court found he had not proved he
was likely to face persecution if returned to El
Salvador. The court found that substantial evidence supported the BIA’s denial “because his
experiences in El Salvador-including discriminatory firings, the mysterious death of a former
boyfriend, and harassment by two off-duty police officers-do not rise to the level of past persecution.” The court also rejected a CAT claim,
noting that the petitioner’s brief failed to address the issue, and rejected due process
claims on the ground that the court found the
proceedings to have been fairly conducted.
9th Circuit — Taking note that substantial
evidence supported the Board of Immigration
Appeals’ determination that “conditions for homosexuals are improving in the Philippines,”
the court upheld a decision by the Board denying asylum and withholding of removal for a gay
native and citizen of the Philippines seeking to
stay in the U.S. Castillo Orobio v. Holder, 2009
WL 1028085 (April 13, 2009). As in many
other cases, the court found that evidence of
past discrimination did not rise to the level of
persecution, and that “actions taken against
him by suspected members of the New People’s
Army” were also insufficiently severe to constitute persecution. The court found that the petitioner had failed to establish that the NPA had
any continuing interest in him, and denied his
petition for review.
Illinois — U.S. District Judge William T.
Hart has whittled down the pending litigation of
Zamecnik & Nuxoll v. Indian Prairie School
District #204 Board of Education, 2009 WL
805654 (N.D.Ill., March 24, 2009), in which
the 7th Circuit previously ruled that anti-gay
students could wear t-shirts with the wording
“Be Happy, Not Gay” to communicate their
views in response to the National Day of Silence
activities at their school. Since Heidi Zamecnik has graduated, she’s out of the continuing
case. Alexander Nuxoll, suing through his parents, remains in the case, but the court dismissed as subjective his contention that existing school rules were chilling him from
engaging in various forms of expressive activity
at school, such as bringing in his Bible, distributing cards with Biblical quotations, and engaging classmates in speech, all in pursuit of
Lesbian/Gay Law Notes
propagating his religious message against homosexuality. Hart found that the allegations of
chilled speech failed to meet the established
test, being entirely speculative on the state of
the record, since there is no indication Nuxoll
was ever specifically denied permission to do
these things. Hart dismissed without prejudice
for lack of standing all remaining claims except
those related to the injunctive relief that had
previously been granted to allow Nuxoll to wear
his pathetic t-shirt.
Louisiana — In Gaspard v. Our Lady of
Lourdes Regional Medical Center, 2009 WL
798818 (W.D.La., March 25, 2009), District
Judge Tucker L. Melancon rejected a motion to
amend an employee whistleblower complaint to
add a count for sexual orientation discrimination in violation of federal and state civil rights
law. The plaintiff alleged that the employer had
inquired about her sexual orientation and specifically asked whether she was a lesbian prior
to demoting her to an inferior position, and
claimed a violation of the sex discrimination
prohibition in Title VII of the federal Civil
Rights Act. The judge stated that the proposed
amendment was a “futile attempt” to insert a
federal cause of action in a case that was essentially a state law whistleblower case, because
Title VII has been construed in 5th Circuit
precedent binding on the court as not prohibiting sexual orientation discrimination.
New York — A self-identified non-gay prison
inmate who was perceived to be gay and alleges
that he suffered discrimination on account of
that treatment may maintain an action for a violation of his right of Equal Protection, according to a ruling by U.S. District Judge Glenn T.
Suddaby (N.D.N.Y.), refusing to dismiss an
equal protection allegation against one of the
named defendants in Vega v. Artus, 2009 WL
838124 (March 26, 2009). Avoiding the common error of other courts in holding that Romer
v. Evans relegates gay equal protection claims
to dismissal in almost all cases, Judge Suddaby
cited a subsequent federal district court ruling,
Quinn v. Nassau County Police Dep’t, 53
F.Supp.2d 347, 356-57 (E.D.N.Y.1999), for the
point that sexual orientation discrimination, as
such, is actionable under the 14th Amendment.
Judge Suddaby also asserted that it makes no
difference in terms of the constitutional analysis whether the plaintiff is actual gay, so long as
he credibly alleges that he suffered discrimination because he was perceived to be gay.
New York — A prisoner alleging that a corrections officer violated his constitutional
rights by spreading rumors he was gay and discriminating against him in other ways suffered
dismissal of his claim in Bouknight v. Shaw,
2009 WL 969932 (S.D.N.Y., April 6, 2009).
District Judge P. Kevin Castel observed that under the Prison Litigation Reform Act of 1995,
the plaintiff was barred from bringing a damages claim when h had suffered no physical in-
May 2009
jury. In addition, Castel pointed out that established precedents bar an action for spreading
rumors about sexual orientation without concrete allegations that this placed the inmate in
physical danger.
New York — Sometimes you have to file a
lawsuit to get somebody’s attention. Lambda
Legal announced on April 17 that the Indian
River Central School District in upstate New
York, which had been denying a student request to allow the formation of a Gay-Straight
Alliance, caved upon being served with a federal complaint under the Equal Access Act.
The school district’s attorney sent a letter to
Lambda indicating that the student club could
be formed on April 20, the first day of classes
after spring break. Lambda intends to continue
the lawsuit, which also seeks damages for certain students who suffered severe harassment
that the school had refused to address. Pratt v.
Indian River Central School District (Suit filed
April 8, 2009, in the U.S. District Court, Northern District of New York).
Washington — U.S. Senior District Judge
Fred Van Sickle found in Babcock v. Clarke,
2009 WL 911214 (E.D.Wash., March 31,
2009), that a prisoner who states that she is a
male-to-female transsexual is not entitled to
have prison officials ordered to use her female
name, not the male name under which she was
sentenced and incarcerated. The court found
that prison authorities have a legitimate penological interest in standardized identification
procedures which avoid “confusion, and helps
to ensure the safety and security of staff, offenders and the public... If an offender were allowed
to be identified by more than one name within
the prison,” wrote the court, “it would create
uncertainty and confusion on the part of the
staff.” The court also noted that inmate records
are kept using their “committed names” (referring to the names under which they are committed to the custody of the prison system), and it
would not due to have different names in general use in the prison from the names recorded
in prison records. The court rejected attempts
by the plaintiff to make this a religious freedom
issue on her part, and found that the plaintiff’s
allegation that she had received death threats
from other inmates was not sufficient to establish a constitutional claim. A.S.L.
State Civil Litigation Notes
California — The California Supreme Court
denied review on April 29 in Doe v. California
Lutheran High School Association, 170 Cal.
App. 4th 828, 88 Cal. Rptr. 3d 475 (Cal. 4th
Dist. Ct. App., 2009), in which the court of appeal ruled that a Lutheran high school was not a
public accommodation subject to the Unruh
Civil Rights Act, thus it could not be sued by a
student who was expelled for having a lesbian
relationship with another student. In this case,
91
the student in question and her girlfriend were
imprudent enough to post statements about
their relationship on their MySpace pages; another student then tipped off the principal, who
questioned them and expelled them upon determining to his satisfaction that they were lesbians having an affair.
California — In McMillan v. Plummer, 2009
WL 1020653 (Cal.Ct.App., 1st Dist., April 16,
2009), the court affirmed a decision by the trial
court to allow best-selling author Terry McMillan to continue her suit for intentional infliction
of emotional distress against Jonathan Plummer, a young man whom she married and subsequently divorced when he revealed that he was
gay. The lengthy and complicated appellate
opinion by Justice James R. Lambden concerned appeals and cross-appeals from trial
court rulings on motions to strike a complaint
that McMillan had filed against both Plummer
and his lawyer on a variety of claims. The trial
court struck all the claims against the lawyer,
and two of the claims against Plummer, but left
intact the part of the case in which McMillan
asserts that Plummer knew he was gay from the
outset and engaged in an intentional plot by
Plummer, a Jamaican, to gain U.S. citizenship
and embezzle money from her, while continuing
to carry on a surreptitious gay sex life. The
court also allowed McMillian to continue asserting claims that Plummer had violated judicial orders that had been issued against him in
order to protect McMillan. The entire matter is
too complicated (and essentially off-point from
the doctrine concerns of Law Notes) to merit
more space here. The opinion does make lively
reading. McMillan is represented by Martin
Garbus (N.Y.) with associated local counsel
Daniel A. Horowitz; Plummer is represented by
Janice Vaughn-Mock. Jennifer Anne Becker
represents Plummer’s trial attorney in the divorce matter.
California — On April 30, the 2nd District
Court of Appeal reversed the grant of summary
judgment and revived a pregnancy discrimination claim against a charitable foundation in
Johnson v. United Cerebral Palsy-Spastic Children’s foundation of Los Angeles and Ventura
Counties, 2009 WL 1154132. A significant
factual allegation by the plaintiff in support of
her claim of pregnancy discrimination, which
the court of appeals felt the trial court had not
given adequate weight, was “evidence relating
to what some employees perceived as a gay and
lesbian subculture of employees at defendant’s
facility: comments made by Jimenez (who is
open about being a lesbian), about heterosexuality and being a lesbian; Jimenez telling her
lesbian dna gy friends to interview for positions
there; and gays and lesbian receiving favorable
treatment from defendant.” Jimenez was a supervisory employee, and the plaintiff alleged
she was biased against heterosexual women
who became pregnant.
92
California — A Superior Court jury in Newport Beach has ruled in favor of a veteran police
officer who claimed he was denied promotions
several times because he was incorrectly perceived by the police department as being gay.
Harvey v. Newport Beach, Cal. Super. Ct., No.
07cc05400 (Verdict March 17, 2009). BNA
Daily Labor Report No. 58, A-2 (March 30,
2009). Sergeant Neil Harvey claimed that despite his outstanding annual evaluations, he
was stereotyped as being gay and denied promotion because he was single and physically
fit. (It’s nice to have a stereotype that gay men
are physically fit, isn’t it? Which means there
is a stereotype that heterosexual married men of
a certain age must necessarily be unfit.... and
the military wants to keep gays out?) The jury
awarded $8,000 in past lost earnings,
$592,000 in future earnings, and $600,000 for
noneconomic losses, for a total verdict of $1.2
million, which the city is expected to challenge
and eventually appeal. The City Council voted
on March 24 to authorize counsel to file motions
challenging the verdict. The jury ruled for Harvey on claims of discrimination based on perceived sexual orientation, retaliation, and failure of the city to prevent discrimination, but
rejected his hostile work environment claim.
Connecticut — An openly-gay police officer
whose allegedly non-gay twin brother was also
a police officer in the same town could maintain
a defamation action against a local TV station
whose reporting about charges that his brother
viewed child pornography allegedly could have
(and did) misled viewers into mistakenly thinking that the plaintiff was the subject of the ensuing scandal. Siena v. Meredith Corp., 2009 WL
1140531 (Conn. Super. Ct., Middlesex, March
30, 2009). Robert Siena, the plaintiff, and
Richard Siena, who was caught up in the scandal over his viewing of child pornography on a
police department computer, looked alike, and
although Richard Siena was referred to on the
program a few times as “Rick,” there were
many references to “Officer Siena.” The plaintiff alleged that a reporter involved with the
story knew him and thus knew the possibility of
creating confusion. In rejecting the motion for
summary judgment, the court decided there
was a jury question about whether members of
the public could be misled to think the story
was about Robert Siena.
Florida — Law.com reported on May 1 that
Scott Allen Burr, an openly-gay international
litigation attorney now at the firm of Concepcion Sexton & Martinez, had filed a pro se
sexual orientation discrimination lawsuit
against his former employer, Miami-based Astigarraga Davis, claiming he was constructively
discharge on account of his sexual orientation.
Burr alleges that when he joined the firm as
senior counsel he had been promised he would
be considered for promotion to equity partner
within a year, but the firm leaders refused to
May 2009
promote him, gave him poor performance reviews, and refused a request for time off of a
type that it had normally granted for non-gay attorneys. Responding the complaint, the firm alleges that it knew Burr was gay when it hired
him, and that under an arbitration agreement
Burr had waived his right to file a lawsuit in
connection with his resignation from the firm.
New Jersey — The New Jersey Appellate Division has upheld the issuance of a domesticviolence final restraining order sought by a gay
man against his former wife, who had been harassing and stalking the man, including attempting to “out” him at his job and to his mother.
B.S.J. v. R.M.J., 2009 WL 1097894 (N.J.Super.A.D., April 24, 2009) (unpublished opinion). The per curiam ruling quotes from the
opinion in the Chancery Division, Family Part,
from Somerset County: “The court finds that on
February 3, 2007 defendant sent an e-mail to
plaintiff’s employer, whom she believed to be
the president or vice president of [a] real estate
company. In the e-mail defendant referred to
plaintiff’s alternate lifestyle, his affair, having
to subject myself to AIDS tests.’ She also referred to his male friend’ and his secret.’ On
March 26 she sent an e-mail to plaintiff in
which she stated I’m sure your mother knows
where and who you are with so you will not mind
it being discussed in court in front of her.’ On
April 3, 2007 defendant sent plaintiff an email
saying If we have to go to court, your mother
will end up finding out where and whom you are
living with and what your to too [sic].’” There
was yet another email directed to the employer,
including a chain of past email correspondence
between the parties about child support and
wage garnishment issues. The trial court noted
that at the time the plaintiff had not disclosed
his sexual orientation to his employer or his
mother. In a prior email, the defendant had
threatened the plaintiff with “nice pictures”
from her private investigator to show to his
mother. The Appellate Division panel found
that the trial judge’s decision to issue the order
was supported by the record.
New Jersey — In a per curiam decision, the
New Jersey Appellate Division rejected an appeal by a man confined under the Sexually Violent Predator Act for molesting teenage boys
from the decision by state officials to keep him
confined. In the Matter of the Civil Commitment
of R.W.R., 2009 WL 1139114 (April 29, 2009).
The man argued that the decision that he was
likely to re-offend if released was inappropriately based on the fact that he was having a consensual adult homosexual relationship at the
Special Treatment Unit with another resident of
the facility. The court found ample record evidence that R.W.R. had incompletely characterized that relationship, which was with a much
younger man whose mental issues precluded
normal consent, and that there was substantial
evidence in the record that R.W.R.’s treatment
Lesbian/Gay Law Notes
had not resulted in the necessary reduction of
his strong impulse to sex with teenage boys,
thus supporting the conclusion that he would be
a danger to the community if released.
New Jersey — In a per curiam decision, the
N.J. Appellate Division found that a sexual orientation discrimination plaintiff had not been
deprived of a fair trial when the trial judge read
model civil jury instructions to the jury in response to its request for help when it was deadlocked on the discrimination claim. Bruno v.
New Brunswick Board of Education, 2009 WL
1011032 (April 15, 2009). The trial judge mistakenly thought that reading the particular instructions to the deadlocked jury was mandatory, and denied a defense request to amend
them. The plaintiff made no objection to the
proposed instructions. The jury requested further clarifications, which were given, then finally reached a verdict, concluding that although the plaintiff was performing his job at a
level meeting the board’s legitimate expectations, he had not proven intentional discrimination in his demotion from vice principal to bilingual teacher. The plaintiff had been
subjected to various comments about his mannerisms and personality which had led him to
believe that homophobic bias was at work, but
the jury evidently disagreed.
New Mexico — The ACLU announced the
settlement of its lawsuit against the State of New
Mexico, Levitt and Dakota v. New Mexico, seeking equal treatment for domestic partners of
state employees in the matter of retirement
health insurance. The state provides health insurance coverage for the spouses of retired employees, and under the settlement the benefits
will provided on the same basis for domestic
partners of state employees. ACLU of New
Mexico Staff Attorney George Bach, LGBT Project Attorney Ken Choe, and cooperating attorney Maureen Snaders of Sanders & Westbrook
collaborated on the case.
New York — Pressconnects.com, an internet
news service based in Binghamton, N.Y., reported on March 31 that New York State Justice
Molly R. Fitzgerald (Broome County Supreme
Court) had granted a divorce to Lauren WellWeiss and Shari Weiss, who were married on
August 13, 2004, in Toronto. The court did not
treat their house as part of the marital property,
because at the time it was purchased the parties
could not have acquired title with equal rights
of possession as spouses under New York law,
according to the news report, which is a bit
vague on the details. A.S.L.
Criminal Litigation Notes
Arizona — On appeal from conviction for two
counts of aggravated driving under the influence of alcohol, a gay defendant suffered rejection of his argument that the trail judge’s refusal
to allow him to introduce evidence concerning
Lesbian/Gay Law Notes
his sexual orientation at trial or to voir dire potential jurors about their attitudes towards homosexuality had deprived him of a fair trial.
State v. Joe, 2009 WL 838195 (Ariz. App. Div.
1, March 31, 2009). Defendant Joe was arrested by police who claimed to observe erratic
driving. Joe claimed he was a passenger, and
that a woman friend was driving. As the police
approached at the traffic stop, he claimed he
leaned over to hug the woman friend to appear
straight, because as a gay man he was frightened of the consequence of being sent to jail.
The appeals court found Joe’s sexual orientation to be tangential at best to the ultimate questions of guilt or innocence in the case, and potentially biasing the jury, and upheld the trial
court’s decision to keep this issue out of the
case. It appears to us that Joe was hoping to
play on stereotypes about gay men presumably
held by the jurors in order to win their sympathy, and the trial court would not let him get
away with it.
Colorado — Allen Andrade has been convicted of murdering transsexual Angie Zapata
and sentenced to life in prison without possibility of parole. Denverpost.com, April 23. A jury
took barely two hours of deliberation to reach a
first-degree murder verdict, as well as a verdict
on commission of a hate crime, which was
mainly symbolic since the first-degree murder
conviction on its own would merit the life sentence. According to evidence at trial, the two
met through a dating website on which Zapata
presented herself as a woman. When Andrade
discovered that Zapata was biologically male,
he bludgeoned her to death. Andrade’s defense
was not helped by demeaning comments he
made about Zapata in prison, which bolstered
the hate crime verdict, or by the decision of his
attorneys to refer to the victim throughout the
trial as Justin. Los Angeles Times, April 23.
A.S.L.
Other Legislative Notes
Federal — The House of Representatives voted
249-175 on April 29 to approve the Local Law
Enforcement Hate Crimes Prevention Act of
2009, which would expand the federal definition of a hate crime to include crimes motivated
by prejudice and based on a victim’s race, color,
religion, national origin, gender, sexual orientation, gender identity or disability. If enacted, it
would represent a significant expansion of federal protection for hate crimes victims, and
there remained strong opposition in the Senate,
so the ultimate fate of the bill was hard to predict. A similar measure passed in the House in
the prior Congress, but the likelihood of a veto
by the president as well as the determined opposition of the Republicans, who had enough
votes in the last Congress to filibuster just about
anything they wanted to stop kept the measure
May 2009
off the floor in the Senate. President Obama is a
supporter of the bill, and the Democrats increased their margin in the Senate substantially, so enactment is more likely this time
around. The Senate version of the measure,
sponsored by Senators Kennedy and Leahy,
was introduced on April 29 as the Matthew
Shepard Hate Crimes Prevention Act.
Alabama — Will the sun still rise and set in
Birmingham? Al.com, an Alabama news website, reported on April 24 that the Alabama
House of Representatives voted to expand the
state’s hate crimes law to address bias crimes
against gays and bisexuals, by adding sexual
orientation to the categories already listed in
the law. The measure was approved 46-41, certainly the first time that an Alabama legislative
body has voted affirmatively for a gay rights
measure. Unfortunately, an amendment seeking to add “gender identity” to the bill was defeated, but the measure’s sponsor expressed
hope that courts would construe the addition of
“sexual orientation” as extending protection to
people who are victimized due to their gender
identity. The bill still faces an uphill battle in
the state Senate.
District of Columbia — The District of Columbia Council voted unanimously on April 7
that the District would recognize same-sex
marriages that were lawfully contracted in other
jurisdictions. The vote was seen as preliminary
to tackling a bill to authorize same-sex marriages in the District. Since the Council’s actions are subject to veto by Congress, the recognition bill was seen as putting a toe in the water
to see whether there will be a Congressional response, prior to proceeding to the more significant marriage measure. Although the federal
government has a formal policy of nonrecognition for same-sex marriages, embodied
in the 1996 Defense of Marriage Act, that does
not necessarily preclude the District’s government from adopting a contrary policy, provided
Congress does not react negatively to it. Washington Post, April 8.
Iowa — Governor Chet Cutler signed into
law S.F. 137 on April 28, a measure that expands the state’s anti-discrimination law in
various ways. It incorporates the tolling concept of the recently-enacted federal Lilly Ledbetter Fair Pay Restoration Act, significantly
extending the statute of limitations of pay discrimination claims, applies to firm with as few
as 4 employees, and authorizes liquidated
damages for wilful violations of the equal pay
for equal work requirement. Among the categories of discrimination covered in the law are
sexual orientation and gender identity and expression. Daily Labor Report, BNA, April 30,
2009, p. A-2.
Missouri — The Columbia City Council
unanimously approved a city domestic partnership registry measure. Upon payment of a $25
fee, unmarried couples, whether same-sex or
93
different-sex, can register with the city as domestic partners, and would obtain an official
certificate that they can present to institutions
as proof of their partnership. The measure does
not obligate any institution to recognize the
partnership as legally binding. As such, the
measure is about symbolism as much as anything else, allowing the Columbia legislators to
put themselves on record in support of family
diversity, in contrast to the lack of legal reinforcement for non-marital relationships in Missouri. Columbia Daily Tribune, April 7.
Nevada — On April 21, the Nevada Senate
voted 12-9 to approve a domestic partnership
bill that would provide most of the state law
rights of marriage to same-sex or different-sex
couples who register as domestic partners. The
vote for S.B. 283 fell two votes short of the
number that would be necessary to override the
veto that has been threatened by Governor Jim
Gibbons should the measure pass the Assembly and come before him. Las Vegas ReviewJournal, April 22.
New Hampshire — The State Senate unanimously rejected a proposal to amend the state’s
civil rights law to ban discrimination on the basis of gender identity or expression. Ironically,
the vote came on April 29, the same date that a
majority of the Senate voted in favor of a bill to
allow same-sex marriages in the state.
New York — On April 21 the New York State
Assembly passed A. 5710, the Gender Expression Non-Discrimination Act, which would
amend the state’s human rights law to add gender identity or expression to the list of prohibited grounds for discrimination. The vote was
97-38, with a handful of members of each party
crossing lines but the overwhelming majority of
the line-up being Democrats yes and Republicans no. The Democratic-controlled Assembly
had passed the bill in a prior session, but the
Republican-controlled Senate had refused to
take it up. Since then, political control of the
Senate has passed to the Democrats, albeit by a
slender margin, and there was cautious optimism that the measure might be enacted, thus
bringing New York in line with the trend of recent years for jurisdictions that ban sexual orientation discrimination to ban gender identity
discrimination as well. Indeed, almost all of the
state “gay rights laws” adopted in recent years
have included “gender identity” as a noncontroversial component, leaving New York a
bit of an outlier. Governor Paterson, who was a
sponsor of the measure when he was in the Senate, is expected to sign the legislation if it
passes. New York City amended its Human
Rights Law several years ago to add gender
identity and expression as a protected category.
New York — Governor David Paterson
moved forward a same-sex marriage bill in the
state legislature, with simultaneous introduction on April 22 of S 4401 in the Senate sponsored by Tom Duane and A 7732 in the Assem-
94
bly sponsored by Daniel O’Donnell. The
measure was expected to come up for an Assembly vote early in May, and most likely to
pass by a larger margin than the identical bill
that was approved in the Assembly in 2007.
The big question-mark remained the Senate.
Although the Democrats won a slim majority for
the first time in several decades in the November elections, opposition to the same-sex marriage bill by one of the Democratic Senator, Ruben Diaz, Sr., threatened to block the election of
the Democratic Senator Major Leader, Malcolm
Smith, a supporter of same-sex marriage. Ultimately Sen. Diaz backed down and voted for
Smith with securing a firm public commitment
to keep the marriage bill from the floor of the
Senate, but Diaz is not the only Democratic
senator known to oppose the bill, so Republican votes would be needed to put it over the top.
Governor Paterson has called for a Senate vote
regardless of whether sufficient votes are committed in advance to pass the measure. Sen.
Smith has demurred, pointing out that the majority in the Senate normally does not bring a
bill to the floor without sufficient advance commitments to pass it. Sen. Duane has told the
press that he has private commitments from
several Republican Senators to vote for the bill
if it comes to the floor, and Senate Minority
Leader Dean Skelos has announced that he will
not seek party discipline on the marriage bill,
leaving individual Republican Senators free to
vote their conscience on the issue. Whether the
measure will pass in the hurly-burly of end-ofsession deal-making, or in a clean vote on its
own, was uncertain, as was whether Sen. Smith
would be willing to bring it to a vote without the
open assurance of sufficient votes to pass it.
The momentum of same-sex marriage events in
neighboring New England could provide additional encouragement, especially as some Republican legislators in Connecticut, Vermont,
New Hampshire and Maine have voted for
same-sex marriage bills.
New York — Addressing another issue on the
LGBT legislative agenda in New York, the Assembly overwhelming voted to approve the Dignity for All Students Act, a measure intended to
combat bullying in the schools on the basis of
“actual or perceived race, color, weight, national origin, ethnic group, religion, disability,
sexual orientation, gender or sex.” According
to a report on April 16 in Gay City News, the
measure passed with only five negative votes.
It had passed in the previous session as well,
but was blocked in the Republican-controlled
Senate. There were hopes that it might fare better in the new Senate with its slight Democratic
majority, in light of the extensive support of Assembly Republicans for the bill.
Washington — The Washington legislature
approved a measure that would extend protection under the state’s malicious harassment law
(the “hate crime” law) to transgendered peo-
May 2009
ple, by expanding the definition of “sexual orientation” used in the law to include “gender expression or identity.” Governor Gregoire signed
the measure into law on April 22. A.S.L.
Law & Society Notes
Revised White House Website — On Inauguration Day, the White House website changed at
noon to reflect the policies and promises of the
Obama Administration. Among those listed,
under the civil rights agenda, were repeal of the
Defense of Marriage Act and the end of the
“don’t ask, don’t tell” military policy. Towards
the end of April, some activists were disturbed
to note that the website’s civil rights section had
been revised, and that these two items were no
longer listed as policy priorities of the administration. When this was noted and word spread
through blogs and emails, the White House became defensive and then revisions were made,
leaving the website reading as follows as of May
1 under Civil Rights: “President Obama also
continues to support the Employment NonDiscrimination Act and believes that our antidiscrimination employment laws should be expanded to include sexual orientation and gender identity. He supports full civil unions and
federal rights for LGBT couples and opposes a
constitutional ban on same-sex marriage. He
supports changing Don’t Ask Don’t Tell in a
sensible way that strengthens our armed forces
and our national security, and also believes that
we must ensure adoption rights for all couples
and individuals, regardless of their sexual orientation.” What has changed since the inauguration? First, a lawsuit was filed challenging
DOMA, and the Justice Department has to decide how to respond. Second, Secretary of Defense Robert Gates has stated an inclination to
delay addressing the military service issue, assuming that it would be a distraction in light of
the ongoing wars in two countries. This seems
pathetic, in light of the ease with which our allies (Canada, Great Britain, Israel) managed to
accommodate military service by openly-gay
people without any disruption. It bespeaks a
lack of confidence in the ability of U.S. military
personnel to follow orders in the face of personal disagreement, and appears out of touch
with the reality in the rank and file as reported
by Nathaniel Frank in his recent book, which
suggests that the front line personnel generally
“get it” and are fine with having gay colleagues.
So it appears now that the president may be
backing away from the campaign promise to replace DADT with a non-discrimination policy
in the military, and a full-out repeal of DOMA.
Gay Diplomacy — President Barack Obama
has named Peter Burleigh, an openly-gay foreign service officer, to serve as acting ambassador in India until a permanent ambassador is
named. Burleigh is a former acting ambassador
Lesbian/Gay Law Notes
to the United Nations, and has served in the
diplomatic corps for more than thirty years.
Presbyterian Church (USA) — The Los Angeles Times reported on April 26 that an ongoing survey by the Presbyterian Church of its denomination on the issue of ordination of openly
lesbian or gay clergy has produced a negative
answer. Although a final tally has not yet been
reached, sufficient presbyteries have voted
against the proposition to prevent a change of
current church law, which requires that ministers, deacons and elders live in “fidelity within
the covenant of marriage between a man and a
woman, or chastity in singleness.”
California — The San Francisco Chronicle
(April 24) reported that Sen. Dianne Feinstein
(D-Calif.) has sponsored special legislation to
help Shirley Tan, a lesbian mother, remain in
the U.S. Tan, a native of the Philippines, is the
registered domestic partner of Jay Mercado,
with whom she is raising Mercado’s 12-yearold twins. Tan had been ordered to present herself for deportation on May 10, having overstayed her visa to visit the U.S. long ago and
having been turned down for asylum by the
Board of Immigration Appeals. Tan’s deportation is on hold at least until Congress holds
hearings on the Feinstein bill, which may not
happen until some time next year.
New Mexico — The New Mexico Democratic
Party has endorsed same-sex marriage in its official party platform, albeit using the euphemism of “marriage equality” rather than an express reference to marriage for same-sex
couples. The platform position states that
Democrats “should actively support and advocate on behalf of marriage equality and equal
rights for all, regardless of sexual orientation.”
Alburquerque Journal, April 26, 2009.
New York — Another sign of the times...
Without any official notice, the New York City
Board of Health has been offering the option of
listing domestic partners on death certificates
since January 1. The old death certificates
used only traditional marriage categories. The
new certificates also ask for “surviving
spouse’s/partner’s name,” rather than just
“spouse’s name” as on the old forms. Gay City
News, April 2. A.S.L.
International Notes
Australia — The government announced
changes to the Immigration Act, some having
taken effect March 15, others to become effective on July 1, that are intended to ensure that
same-sex couples receive the same treatment
as different-sex “de facto” couples, both as
partners and as parents, for purposes of immigration and citizenship in Australia. The
changes are intended to simplify the visa process, so that all visa that currently include provisions for “spouse” will be available to both
Lesbian/Gay Law Notes
same-sex and different-sex (unmarried) partners on the same basis.
Austria — The Austrian Administrative
High Court has ruled that transsexuals need not
submit to gender reassignment surgery in order
to qualify for legal recognition of their new gender identity. The decision, in which the petitioner is not identified by full name, is captioned V. w. GH 27.02.2009, 2008/17/0054,
and was reported internationally by Rechtskomitee LAMBDA, the Austrian LGBT rights
group headed by Dr. Helmut Graupner, a Vienna attorney who represented the applicant in
this case. The applicant, born male, had been
living for a woman as a long time but was denied
a name change and suitable identity documents, resulting in continuing embarrassment
and inconvenience every time she had to produce identification. She had refrained from undertaking surgery out of concern that she would
loose yher job du to the lengthy absence from
work that would be required. The Court, taking
this into account, ruled that serious surgery is
not a prerequisite for the change of legal sex of
transsexuals. Dr. Graupner commented that
the ruling makes Austria the sixth country in
Europe to abolish “mandatory surgery” for
transsexuals who seek legal recognition of their
preferred gender.
Botswana — A group of gay activists has reportedly filed suit challenging the constitutionality of the nation’s criminal law against gay
sex. A prior suit in 2003 was unsuccessful, according to a report by Rex Wockner published
on-line.
Burundi — Human Rights Watch reports
that the president of Burundi, Pierre Nkurunziza, “secretly” signed a bill criminalizing homosexual conduct April 22. The bill had been
approved by one house of the legislature, rejected by the other, but it seems that under the
nation’s constitution the vote in the National
Assembly to approve the bill takes priority over
the Senate’s rejection. The new law, Article
567, establishes criminal penalties for homosexual conduct for the first time in Burundi, a
central African republic.
Hungary — The International Lesbian &
Gay Association reports that the Hungarian
Parliament has approved a registeredpartnership bill for same-sex couples on April
20. A previous partnership bill, open to both
same-sex and different-sex couples, had been
May 2009
struck down by the Constitutional Court late
last year on the ground that it violated the special protection given to marriage under the constitution by providing a non-marital alternative
for different-sex couples. The bill, which was
expected to be approved by the president and
take effect this summer, provides all the rights
of marriage except in the areas of adoption, assisted reproduction, and surnames of spouses.
Iceland — The caretaker government was
confirmed in office in a national election on
April 25, so Johanna Sigurdardottir moves from
being the caretaker prime minister to being the
permanent prime minister and, as such, the
first and so-far only openly-gay head of government in the world. Her sexual orientation was
reportedly not an issue in the election. Irish
Times, April 27.
Iraq — The perilous situation for LGBT people in Iraq received increased media attention
during April, amidst reports that torture and
persecution wages against gay men, and a claim
that anti-gay militia units had tortured gay men
to death by using a “very strong glue” to seal
their anuses and then forcing them to drink
diarrhea-inducing liquids until they were
killed. The claim was made that videos illustrating this method of torture were circulating
on cellphones in Iraq. Finally, the world press
was beginning to notice, but the U.S. government remained mainly silent.
Senegal — A group of nine HIV-prevention
workers who had been jailed on charges of homosexuality were ordered released by an appeals court in Dakar on April 15. They had
been sentenced to eight years in jail in January
on charges of “indecent and unnatural acts”
and “forming associations of criminals.” The
prosecution argued that their AIDS prevention
organization was really a front for recruiting
men into homosexuality. 365Gay.com, April 20.
Serbia — The National Assembly voted on
March 26 to ban sexual orientation discrimination by a vote of 127-59. This is actually closer
than it seems, because an absolute majority of
the legislature was required to pass the measure and 64 members did not show up to vote.
Enactment of a law banning sexual orientation
is required of countries seeking admission to
the European Union.
Sweden — The Parliament approved a bill to
make the marriage law gender-neutral and allow same-sex couples to marry, making Sweden
95
the fifth country in Europe to take this step, after the Netherlands, Norway, Belgium and
Spain. The law will take effect May 1. Sweden
has had registered partnerships for same-sex
couples since 1994. Individual churches will
decide whether to provide church weddings for
same-sex couples. The vote in the Parliament
was 261-22, with 66 members abstaining or absent. Orlando Sentinel, April 2.
Switzerland — Advocate.com reported on
March 30 that Corine Mauch, an out lesbian,
was elected mayor of Zurich on March 28, making her the first lesbian to be elected mayor of a
major international city. (Gay men are mayors
of Berlin, Hamburg and Paris, and somebody
occasionally reputed to be gay has served as
mayor of New York City in the past, but we won’t
name names here.) Mauch, the nominee of the
center-left Social Democratic Party, won election over Kathrin Martelli, representing a coalition of center-right parties. Gender as much as
sexuality dominated the election campaigns, as
either woman would be the first female mayor of
a major Swiss city if elected. Among her other
qualifications to lead Zurich, Mauch played
bass with two rock bands, The Hoover and Fallacy, during the 1990s. A.S.L.
Professional Notes
New York Mayor Michael R. Bloomberg has appointed William J. Hibsher, an openly-gay attorney who is a past co-chair of the board of
Lambda Legal and is currently serving as
Vice-President of Congregation Beth Simchat
Torah, New York’s LGBTQ synagogue, to the
New York City Commission on Human Rights.
The members of the Commission are nonsalaried appointees who advise the Chair (a
salaried official) on Commission policies and
review final decisions and orders issued after
hearings before administrative law judges. The
Commission enforces Title 8 of the NYC Administrative Code, the city’s Human Rights
Law.
The British Law Society is undertaking a
study of how being gay affects a lawyer’s potential for career advancement. Other collaborators in the study are the InterLaw Diversity Forum and Stonewall, the UK’s LGBT rights
lobbying group. A survey was to be distributed
throughout the legal profession on April 23 to
determine the policies being pursued by law
firms.
4/20/09 Lawyer 1, 2009 WLNR
7350454. A.S.L.
AIDS & RELATED LEGAL NOTES
AIDS Litigation Notes
Federal — Missouri — In Ringwald v. Prudential Insurance Company of America, 2009 WL
799580 (E.D.Mo., March 24, 2009), District
Judge Donald J. Stohr found that the defendant
insurer had not violated the rights of the HIV+
plaintiff, who had been receiving employmentrelated disability benefits, when it cut off his
disability payments after 24 months. The court
found that the appropriate standard to apply in
this case in reviewing a claims administrator’s
decision was the “arbitrary and capricious”
standard, that Ringwald’s medical condition as
indicated in the record was such as to support
the conclusion that he was capable of working.
The court noted the medical testimony that
Ringwald’s HIV disease was well-managed.
96
Ringwald claimed his doctor’s view that he was
disabled should
butthat
thehecourt
Ringwald
claimedpredominate,
his doctor’s view
was
sided withshould
the insurer’s
expert. but the court
disabled
predominate,
sided with the insurer’s expert.
Federal — Ohio — U.S. Magistrate Terence
P. Kemp recommended the dismissal of a pro se
complaint by Dr. Ahmad Hosseinipour against
the State Medical Board of Ohio, in Hosseinipour v. State Medical Board of Ohio, 2009 WL
1047357 (S.D.Ohio, April 16, 2009). The doctor, who is HIV+, contended that his rights
were violated in the context of a hearing to revoke his medical license while he was suffering
from HIV encephalopathy. The magistrate rejected the state’s 11th Amendment argument,
finding that the claim sounded in due process,
but concluded that it was time-barred, since the
hearing was held in the 1990s and the complaint was not filed until 2008. The plaintiff asserted a variety of other claims that were all rejected on various technical grounds, suggesting
that he sat on his rights too long and then should
have obtained legal assistance to avoid the
complex procedural pitfalls of employment discrimination litigation. Pro se usually does not
work very well in this context.
Arkansas — In Slaughter v. Capitol Supply
Co., 2009 WL 1098544 (April 23, 2009), the
Arkansas Supreme Court affirmed a trial court
ruling absolving manufactures of a device that
malfunctioned, exposing plaintiff’s decedent to
compressed chlorine gas, from liability for the
decedent’s subsequent demise from AIDS and
pneumocystis carinii pneumonia. The court
found that the jury’s apparent conclusion that
the exposure to chlorine gas did not trigger HIV
to cause the symptoms leading to his death.
The defendants had put on medical testimony
showing that the decedent had begun to develop complications of HIV infection prior to
the chlorine gas exposure, and that he had “an
entirely typical case of PCP.” There was also expert testimony that chlorine had not entered his
lungs sufficiently to cause injury from the exposure. The court held that the jury was free to
reach its own conclusions based on the evidence, and that this evidence in the record supported the conclusion that the chlorine exposure did not cause the decedent’s death from
AIDS.
Florida — A man convicted by a state trial
jury of second degree murder with a weapon
was denied habeas corpus when U.S. Senior
District Judge Lacey A. Collier adopted a report
and recommendation by Elizabeth M. Timothy
to deny the petition in Ware v. McNeil, 2009 WL
799442 (N.D.Fla. 2009). Mr. Ware killed a female prostitute in an apparent dispute over
drugs, stabbing her to death with a knife. Ware
May 2009
was pursuing a self-defense claim, based on the
assertion that the prostitute told him, after they
had sex and were arguing about drugs, that she
was HIV+ and had given him AIDS. He claims
to have “snapped” and gotten into a struggle
with the prostitute, who was allegedly wielding
a knife, which he eventually wrested from her
hand and used to kill her. At trial, the court
sharply limited the introduction of testimony
about HIV, which petitioner claimed undermined his due process right to present his case.
The magistrate concluded that the excluded
evidence, as to whether the prostitute actually
had HIV or whether the petitioner developed
HIV infection after the events, had little probative value. “Evidence of whether the victim actually had AIDS and whether Petitioner actually contracted the disease during their prior
sexual encounter was irrelevant to Petitioner’s
state of mind at the time of the altercation,
which was the issue relevant to Petitioner’s theory of self-defense,” wrote Magistrate Timothy.
Kentucky — Prison inmates who discover
that one of their number is HIV+ have not won
the lottery, entitling them to $1 million in damages, or so ruled Chief Judge Thomas B. Russell of the U.S. District Court, Western District
of Kentucky, granting the state’s dismissal motion in Wright v. Hayden, 2009 WL 909562
(U.S.Dist.Ct., W.D. Ky, March 31, 2009). Noted
Judge Russell, “Courts have consistently
held... that mere confinement in the same cell
as an HIV-positive inmate by itself does not violate the Constitution because HIV is not spread
by social contact. . . Plaintiffs have failed to allege that they were harmed in any way or that
they were subjected to a substantial risk of serious harm.”
Washington — The Court of Appeals of
Washington vacated an AIDS testing order that
had been imposed by the trial court upon the
appellant’s conviction of second degree
murder-domestic violence. State v. Duffy, 2009
WL 997337 (Wash. App. Div. 3, April 14,
2009). Although Mr. Duffy had not objected to
the HIV testing order, he came to regret it and
raised his objection on appeal of his sentence.
Noting that sentencing errors can be raised for
the first time on appeal under Washington
precedents, the court said that the question
whether the trial court could order HIV testing
in any particular case was a matter of statutory
interpretation. In this case, the state conceded
that the testing order was erroneous. The
state’s HIV testing statute authorizes such orders only “if the court determines at the time of
conviction that the related drug offense is one
associated with the use of hypodermic nee-
Lesbian/Gay Law Notes
dles.” Mr. Duffy was not convicted of a drug offense, and so the statute does not authorize HIV
testing in his case and one wonders whether the
trial judge consulted the statute before imposing sentence. A.S.L.
Social Security Disability Cases
West Virginia — In Bennett v. Astrue, 2009 WL
779547 (S.D.W.Va., March 23, 2009), District
Judge John T. Copenhaver, Jr., approved proposed findings and recommendation by Magistrate Judge Mary E. Stanley to deny the appeal
from a denial of disability benefits to the plaintiff, a person living with HIV/AIDS who was
found by a Social Security administrative law
judge to be capable of light work. The judge
found the plaintiff not entirely credible in his
testimony because the day-to-day activities he
described carrying on were inconsistent with
the disabling conditions, both physical and
psychological, he claimed to have. The Magistrate’s report includes the usual detailed and
lengthy description of the plaintiff’s medical
record, and the underlying conclusion that although he has been under treatment for HIV infection for several years, he has not been afflicted with serious consequences from his HIV
infection on the whole. A.S.L.
International AIDS Notes
Canada — Johnson Aziga is the first person in
Canada to be convicted of murder for spreading
HIV. A jury deliberated for 2-1/2 days before
finding him guilty on April 8 on two counts of
first-degree murder and ten counts of aggravated sexual assault. The government charged
Aziga with endangering the lives of eleven
women by having unprotected sex without disclosing his HIV status. Seven of the women
tested positive, and two have died from AIDSrelated complications. Four women tested
negative. According to prosecutors, Aziga lied
to women when questioned about his HIV
status, and in some cases persuaded them to allow him to have sex with them without using
condoms based on his representations that he
was not infected. Defense attorneys argued that
he had a brain disorder and should be excused
from criminal responsibility. Aziga was diagnosed HIV+ in 1996 and was counseled at that
time to disclose his HIV status to sexual partners and not to have unprotected sex. He persisted in engaging in unprotected sex even after
being served with an order under the Health
Protection and Promotion Act. Canwest News
Service, April 5. A.S.L.
Lesbian/Gay Law Notes
May 2009
97
PUBLICATIONS NOTED & ANNOUNCEMENTS
International Conferences That Will Include
LGBT Issues
We have received word about three forthcoming international conferences in which LGBT
issues will be prominently included. The International Gay and Lesbian Youth Organization
will celebrate its 25 anniversary with a conference in Amsterdam July 19-23. Information
available at www.iglyo.com. Equal Opportunities International will sponsor a conference titled “Equality, Diversity and Inclusion in
Times of Crisis” in Istanbul, Turkey, on July
15-17;
see
www.eoiconference.org/pdfs/track9.pdf. And, there
will be a conference titled “Love of Freedom —
Freedom to Love” in connection with the World
Outgames 2nd International Conference in Copenhagen on July 27-29. See www.copenhagen2009.org/Conference.aspx.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Appleton, Susan Frelich, Parents by the Numbers, 37 Hofstra L. Rev. 11 (Fall 2008) (exploring phenomenon of children having more than
two legal parents simultaneously).
Bahreini, Raha, From Perversion to Pathology: Discourses and Practices of Gender Policing in the Islamic Republic of Iran, 5 Muslim
World J. Hum. Rts. No. 1, Article 2 (2008) (online publication available at www.bepress.com.
Bradley, Gerard V., Three Liberal — But Mistaken — Arguments for Same-Sex Marriage, 50
S. Tex. L. Rev. 45 (Fall 2008) (Symposium).
Brauch, Jeffrey A., The Dangerous Search for
an Elusive Consensus: What the Supreme Court
Should Learn from the European Court of Human Rights, 52 How. L.J. 277 (Winter 2009).
Brower, Todd, It’s Not Just Shopping, Urban
Lofts, and the Lesbian Gay-By Boom: How Sexual Orientation Demographics Can Inform
Family Courts, 17 Am. U. J. Gender Soc. Pol’y &
L. 1 (2009).
Buckles, Johnny Rex, Does the Constitutional Norm of Separation of Church and State
Justify the Denial of Tax Exemption to Churches
that Engage in Partisan Political Speech?, 84
Indiana L.J. 447 (Spring 2009).
Carpenter, Dale, A Traditionalist Case for
Gay Marriage, 50 S. Tex. L. Rev. 93 (Fall 2008)
(Symposium).
Carroll, Maureen, Transgender Youth, Adolescent Decisionmaking, and Roper v. Simmons, 56 UCLA L. Rev. 725 (Feb. 2009).
Choper, Jesse, and John Yoo, Can the Government Prohibit Gay Marriage?, 50 S. Tex. L. Rev.
15 (Fall 2008) (Symposium).
Ellsworth, J.A., Michael H. v. Gerald D., 22
Int’l J. for the Semiotics of L. 105 (March
2009).
Frum, David, Same-Sex Marriage: Unconservative in Purpose, in Application, and in Result,
50 S. Tex. L. Rev. 85 (Fall 2008) (Symposium).
Garland, Cori K., Say “I Do”: The Judicial
Duty to Heighten Constittutional Scrutiny of
Immigration Policies Affecting Same-Sex Binational Couples, 84 Ind. L.J. 689 (Spring 2009).
Greenblatt, Jennifer L., “If You Don’t Aim to
Please, Don’t Dress to Tease” and Other Public
School Sex Education Lessons Subsidized by
You, the Federal Taxpayer, 14 Tex. J. On C.L. &
C.R. 1 (Fall 2008).
Gross, Aeyal, Gender Outlaws Before the
Law: The Courts of the Borderland, 32 Harv. J.
L. & Gender 165 (Winter 2009).
Heyman, Brett E., Constitutional Law —
“Don’t Ask, Don’t Tell”: Acceptable in an Accepting Society? Cook v. Gates, 528 F.3d 42 (1st
Cir. 2008), 42 Suffolk U. L. Rev. 321 (First Circuit Review 2009).
Hofman, Darra L., “Mama’s Baby, Daddy’s
Maybe:” A State-by-State Survey of Surrogacy
Laws and Their Disparate Gender Impact, 35
Wm. Mitchell L. Rev. 449 (2009).
Hutchinson, Dave E., “Fleeting Expletives”
Are the Tip of the Iceberg: Fallout From Exposing
the Arbitrary and Capricious Nature of Indecency Regulation, 61 Fed. Communications L.
J. 229 (Dec. 2008).
Keck, Thomas M., Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT
Rights, 43 Law & Soc’y Rev. 151 (March
2009).
Knauer, Nancy J., LGBT Elder Law: Toward
Equity in Aging, 32 Harv. J. L. & Gender 1
(Winter 2009).
Kramer, Zachary A., Heterosexuality and Title VII, 103 Northwestern U. L. Rev. 205 (Winter 2009).
Langbein, Laura, and Mark A. Yost, SameSex Marriage and Negative Externalities, 90
Social Science Quarterly No. 2 (June 1, 2009)
(empirical study seeking to disprove the Family
Research Council’s frequently-repeated assertion that allowing same-sex marriages would
have negative impact on marriage, divorce,
abortion rates, the proportion of children born
to single women, and percent of children in
female-headed households).
Leckey, Robert, Thick Instrumentalism and
Comparative Constitutionalism: The Case of
Gay Rights, 40 Colum. Hum. Rts. L. Rev. 425
(Winter 2009) (Canadian legal scholar takes on
the comparativists....).
Lipkin, Robert Justin, We Are All Judicial Activists Now, 77 U. Cin. L. Rev. 181 (Fall 2008).
MacLeod, Adam J., The Search for Moral
Neutrality in Same-Sex Marriage Decisions, 23
BrighamYoung Univ. J. Pub. L. 1 (2008) (criticism of Massachusetts, California and Connecticut high court same-sex marriage deci-
sions as not being “morally neutral,” thus
accusing the courts of improperly taking sides
in an essentially moral rather than legal debate,
based on the assertion that same-sex and
different-sex relationships are intrinsically different and thus not similarly situated for purposes of state policy-making).
Marouf, Fatma E., The Emerging Importance
of “Social Visibility” in Defining a “Particular
Social Group” and Its Potential Impact on Asylum Claims Related to Sexual Orientation and
Gender, 27 Yale L. & Pol’y Rev. 47 (Fall 2008).
McDonald, Barry P., If Obscenity Were to Discriminate, 130 Nw. U. L. Rev. 475 (Winter
2009).
Murray, Charles, Love Has Nothing to Do
With It, 50 S. Tex. L. Rev. 77 (Fall 2008) (symposium).
Myers, Gretchen Adel, Why Personal Presentation in the Workplace Is Not Trivial: Performativity Theory Applied to Title VII Sex-Dependent
Appearance Standard Cases, 7 The Dukeminier
Awards 173 (2008).
Nagel, Robert F., Marriage and Practical
Knowledge, 50 S. Tex. L. Rev. 37 (Fall 2008)
(Symposium).
O’Day-Senior, Dana, The Forgotten Frontier?
Healthcare for Transgender Detainees in Immigration and Customs Enforcement Detention,
60 Hastings L.J. 453 (2008-2009).
Pacenti, John, Gays and Their Attorneys Have
to Get Creative in Workplace Suits, 50 Broward
Daily Business Rev. No. 85, at 3 (4/13/2009).
Rauch, Jonathan, Not Whether But How: Gay
Marriage and the Revival of Burkean Conservatism, 50 S. Tex. L. Rev. 1 (Fall 2008) (Symposium).
Recent Case, State Constitutional Law —
Same-Sex Relations — Supreme Court of
Michigan Holds that Public Employers May
Not Provide Healthcare Benefits to Same-Sex
Domestic Partners of Employees. National
Pride at Work, Inc. v. Governor of Michigan,
748 N.W.2d 524 (Mich. 2008), 122 Harv. L.
Rev. 1263 (Feb. 2009).
Rensberger, Jeffrey L., Interstate Pluralism:
The Role of Federalism in the Same-Sex Marriage Debate, 2008 B.Y.U.. L. Rev. 1703.
Rohlf, Lindsy J., The Psychological-Parent
and De Facto-Parent Doctrines: How Should the
Uniform Parentage Act Define “Parent”?, 94
Iowa L. Rev. 691 (February 2009).
Sacks, Julie, and Robert S. Salem, Victims
Without Legal Remedies: Why Kids Need
Schools to Develop Comprehensive AntiBullying Policies, 72 Alb. L. Rev. 147 (2009).
Samar, Vincent J., Can A Constitutional
Amendment Be Unconstitutional?, 33 Okla.
City U. L. Rev. 667 (Fall 2008).
Scheffey, Thomas B., In Iowa, They’re Quoting from Kerrigan: Connecticut Same-Sex Rul-
98
ing Developing a National Following, 35 Conn.
L. Trib. No. 15, 9 (4/13/09).
Scutari, Matthew, “The Great Equalizer”:
Making Sense of the Supreme Court’s Equal
Protection Jurisprudence in American Public
Education and Beyond, 97 Geo. L.J. 917
(March 2009).
Segall, Eric J., Lost In Space: Laurence
Tribe’s Invisible Constitution, 103 Nw. U. L.
Rev. Colloquy 434 (March 23, 2009).
Singer, Samantha, What Provision for Unmarried Couples Should the Law Make When
Their Relationships Break Down?, 39 Fam. L.
(UK) 234 (March 2009).
Stockard, Stacy, Is Abstinence Still the Best
Policy? Modernizing Human Sexuality Instruction in Texas Public Schools, 10 Tex. Tech. Admin. L.J. 315 (Fall 2008).
Swiebel, Joke, Lesbian, Gay, Bisexual and
Transgender Human Rights: The Search for an
International Strategy, 15 Contemp. Politics 19
(March 2009).
Walters, Cecily, Circuits Split Over Military’s
Don’t Ask, Don’t Tell’ Policy, 44-AUG Trial 65
(Aug. 2008).
Wax, Amy L, Book Review, Polikoff: Beyond
(Straight and Gay) Marriage: Valuing All
Families Under the Law, 107 Mich. L. Rev. 999
(April 2009).
White, Sandy, and Niwako Yamawaki, The
Moderating Influence of Homophobia and
Gender-Role Traditionality on Perceptions of
Male Rape Victims, 39 J. Applied Soc’l Psych
1116 (May 1, 2009).
Woods, Jordan Blair, Ensuring a right of Access to the Court for Bias Crime Victims: A Section 5 Defense of the Matthew Shepard Act, 12
Chap. L. Rev. 389 (Fall 2008).
Specially Noted:
2007 Dukeminier Awards Announced: UCLA
law students enrolled in the seminar on Sexual
Orientation and Gender Identity Scholarship
undertake the task each year of reviewing recent literature and selecting what they consider
May 2009
the best articles for republication in a volume
titled “The Dukeminier Awards,” in honor and
memory of Jesse Dukeminier, who was one of
the nation’s leading legal scholars and an important role model for LGBT academics and
scholars. The 2008 volume, honoring articles
published in 2007, selects the following previously published articles: Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence, 30 Harv. J.L. & Gender 461, by Deborah
A. Widiss, Elizabeth L. Rosenblatt, and Douglas NeJaime; Who Gets to Interpret the Constitution? The Case of Mayors and Marriage Equality, III Stan. J.C.R. & C.L. 1, by Sylvia A. Law;
and The Doctor Won’t See You Now: Rights of
Transgender Adolescents to Sex Reassignment
Treatment, 31 N.Y.U. Rev. L. & soc. Change
361, by Sonja Shield. In addition, the publication includes the year’s winning entry in a student writing competition for scholarship on
LGBT legal issues. The winning article is Why
Personal Presentation in the Workplace Is Not
Trivial: Performativity Theory Applied to Title
VII Sex-Dependent Appearance Standard Cases,
7 The Dukeminier Awards 173 (2008), by
Gretchen Adel Myers. Ms. Myers is a member
of the Class of 2009 at Stetson University College of Law, and her article is also noted above.
Symposium: Gay Marriage in the Conservative Movement, 50 S. Tex. L. Rev. No. 1 (Fall
2008) (individual articles noted above). Symposium: First amendment Rights in America’s
Public Schools: From the Schoolhouse Gate to
the Courthouse Steps, 42 UC Davis L. Rev. No. 3
(Feb. 2009).
We previously reported on a ruling by 9th
Circuit Judge Stephen Reinhardt that the federal Defense of Marriage Act section 3 was unconstitutional to the extent that it would block
spousal benefits for a 9th Circuit employee who
had married his same-sex partner in California.
The ruling was rendered under the auspices of
the Judicial Council of the 9th Circuit’s internal
grievance procedure, and was not, as such, an
actual decision by the court of appeals. Thus
Lesbian/Gay Law Notes
we were surprised when the opinion surfaced
on Westlaw with an official citation of In the
Matter of Brad Levenson, 560 F.3d 1145 (Jud.
Council, 9th Cir., 2009). Thus, although it is
not a binding precedent, it can be cited as a persuasive one, and we imagine will be in the
pending suit challenging the Defense of Marriage Act in the U.S. District Court in Boston.
AIDS & RELATED LEGAL ISSUES:
Alexander, Elizabeth, Prison Health Care, Political Choice, and the Accidental Death Penalty, 11 U. Pa. J. Const. L. 1 (Dec. 2008).
Duncan, Renee L, The “Direct Threat” Defense Under the ADA: Posing a Threat to the
Protection of Disabled Employees, 73 Mo. L.
Rev. 1303 (Fall 2008).
Sanson, Colleen K., Cause of Action Against
Physician or Other Health Care Practitioner for
Wrongful Disclosure of Confidential Patient Information, 55 Med. Trial Technique Q. 1
(2009).
Turner, Christian, The Burden of Knowledge,
43 Ga. L. Rev. 297 (Winter 2009) (explores,
among other things, the right of individuals not
to know their HIV status).
Winniford, Austin, Expanding Access to Investigational Drugs for Treatment Use: A Policy
Analysis and Legislative Proposal, 19 Health
Matrix 205 (Winter 2009).
EDITOR’S NOTE:
All points of view expressed in Lesbian/Gay
Law Notes are those of identified writers, and
are not official positions of the Lesbian & Gay
Law Association of Greater New York or the LeGaL Foundation, Inc. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in
Lesbian/Gay Law Notes is welcome and will be
published subject to editing. Please address
correspondence to the Editor or send via email. •••