MICHIGAN APPEALS COURT FINDS MARRIAGE AMENDMENT IRRELEVANT TO LESBIAN CUSTODY...

March 2009
MICHIGAN APPEALS COURT FINDS MARRIAGE AMENDMENT IRRELEVANT TO LESBIAN CUSTODY CASE
A panel of the Court of Appeals of Michigan
ruled on February 19 that the state’s constitutional amendment barring legal recognition for
same-sex marriages or domestic partnerships
was irrelevant to the question whether a Michigan court could determine issues of child custody, support and visitation concerning a former
lesbian couple who had jointly adopted children in Illinois. The court’s unpublished per
curiam opinion in Giancaspro v. Congleton,
2009 WL 416301, points out that it is the relationship between the children and the parents,
not the relationship between the parents, that is
the concern of the state’s Child Custody Act.
Three children born in China in 1998, 1999
and 2002 were adopted there by Lisa Ann
Congleton, then the partner of Diane Lorraine
Giancaspro. After they returned to Illinois,
Giancaspro also secured the status of an adoptive parent to the children. The court’s opinion
observes that the parties dispute the circumstances, Giancaspro claiming it was a joint
adoption, while Congleton contends that Giancaspro adopted in a “second-parent adoption”
proceeding. In any event, nobody disputes that
such an adoption could not have been approved
under current law in Michigan, but has been
available in Illinois for several years. In her
complaint, Giancaspro asserts that the judgement of adoption was “based on the parties
having resided together for at least five years
and the children having resided with both of
them since March 3, 2003.”
What is undisputed, according to the court,
is that there is a valid Judgement of Adoption by
an Illinois court, under which both women are
recognized as parents of the three children.
The parties’ relationship broke down. The
children have been residing with Giancaspro,
who filed an action in Berrien Circuit Court in
August 2007 for a determination of “custody,
support and parenting time.” The court does
not discuss details of the current situation, but
apparently Giancaspro is seeking to have
Congleton’s support obligation and visitation
rights formalized. Congleton opposed the action, claiming that the court lacked jurisdiction
under Michigan’s Child Custody Act because
the women have no legally-recognized relationship. In common with most state child custody
LESBIAN/GAY LAW NOTES
statutes, the court’s jurisdiction in Michigan is
invoked upon the dissolution of a marriage and
the need to determine the rights and responsibilities of the divorcing parents.
The trial judge concluded that as there was
no dispute that both women had been determined adoptive parents of the children by an Illinois court having appropriate jurisdiction of
the parties, the Full Faith and Credit Clause of
the U.S. Constitution, art. IV, sec. 1, compelled
recognition of their parental status in Michigan,
thus rejecting Congleton’s argument that there
was some exception to the FFC obligation
based on state public policy. However, the court
ruled that there was no jurisdiction under the
Child Custody Act, as no legal relationship between the parents could be recognized in
Michigan, and Michigan public policy barred
“enforcement” of the adoption order in that
state, and granted Congleton’s motion for summary judgment.
The Court of Appeals found that the trial
judge’s analysis of the situation was erroneous.
Enforcement of the adoption order was not being sought, merely recognition of its validity
and a determination of the rights of the parties
pursuant to the Child Custody statute. “Insofar
as we can determine,” wrote the court, “custody was not in any way adjudicated in Illinois,
so beyond the fact that both parties are legally
parents of the minor children, there is nothing
else from Illinois to enforce. Rather, given that
both parties are legally parents of the minor
children, plaintiff has state an independent
claim under the Child Custody Act seeking to
have Michigan law applied to determine the
rights and obligations of the parties with respect to child custody and support matters.”
“Therefore,” said the court, “the question is
really whether Michigan’s legal framework for
protecting and promoting the best interests and
welfare of children within its jurisdiction excludes children with a parent or parents who
could not have adopted them under Michigan
Law. We conclude that it does not.” This conclusion is quite logical, given the state’s interset as parens patraie in the well-being of all
children within its jurisdiction, combined with
the conclusion that full faith and credit mandating recognizing the adoptive parental status of
March 2009
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©2009 by the LeGaL Foundation of the LGBT Law Association of Greater New York
ISSN 8755–9021
both women. So whether these parents could
have jointly adopted these children in Michigan was irrelevant, and the trial court’s focus on
this question was erroneous.
Since the plaintiff and the defendant are both
legal parents of the children in question, the
trial court on remand is to confirm the authenticity of the Illinois adoptions (as to which the
plaintiff had not attached authenticated copies
of the adoption orders to the complaint), and
then to apply the normal procedures for determining what is in the best interest of children in
terms of such issues as custody, support and
parenting time in an action involving legal parents.
The version of the court’s decision posted on
its website (but not the version initially available on Westlaw) included a dissenting opinion
by Judge Wilder, premised entirely on the failure of the plaintiff to provide proof of the Illinois
adoption in the form of an authenticated court
order. Wilder’s opinion did not state any substantive disagreement with the reasoning or
conclusions of the per curiam, instead arguing
that the court should not have reached those issues because of the lack of documentation provided for the Illinois adoption.
Lambda Legal and the ACLU of Michigan
provided representation to Giancaspro on the
appeal. A.S.L.
LESBIAN/GAY
LEGAL NEWS
Two 9th Circuit Judges Order Benefits for
Same-Sex Spouses of Court Employees
In two unpublished opinions posted to the website of the U.S. Court of Appeals for the 9th Circuit on February 4, judges of the court who were
ruling on internal grievances filed by employees of the judicial branch within the 9th Circuit
ordered the court administrators to process requests that same-sex spouses of the employees
be included in the federal benefits plan governing their employment. The decisions are not official 9th Circuit court opinions, but provide
unusual insight into what at least these two circuit court judges think about the federal Defense of Marriage Act (DOMA) and its relationship to the constitutional rights of LGBT public
employees.
The circuit has its own non-discrimination
policy, which covers sex and sexual orientation,
among other things, and applies to the terms
and conditions of employment of its staff, and
an internal dispute resolution policy that culminates in an appeal to a single member of the
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court. The same system, in parallel, applies to
employees of the federal public defenders offices in the 9th Circuit. In these two cases, In
the Matter of Karen Golinski and In the Matter of
Brad Levenson, employees covered by this system married same-sex partners in California
during the window of opportunity prior to the
passage of Proposition 8 (which amended the
California Constitution to provide that only
different-sex marriages were valid or recognized in California), and each sought to have
their partner included under their employee
benefits plans as spouses. The benefits administrators in both cases took the position that because of DOMA, which includes a provision
forbidding the recognition of same-sex partners
for purposes of federal law, these spouses could
not be considered “spouses” as the term is used
in the statute authorizing employee benefits for
federal court personnel.
The first case, brought by Karen Golinski, a
staff attorney for the appeals court in San Francisco, culminated in a January 13 ruling by
Chief Judge Alex Kozinski. Kozinski concluded that the statute was ambiguous enough
that he could construe it to authorize the benefits, through a verbal sleight of hand employed
specifically to avoid the DOMA question. The
statute, part of the Federal Employee Health
Benefits Act, 5 U.S.C. sec. 8903(1), authorizes
the Office of Personnel Management to enter
into contracts with insurers to provide coverage
for “employees, annuitants [and] members of
their families.” In 5 U.S.C. sec. 8901(5), the
statute defines “member of family” as an employee’s spouse and children. The court administrator took the position that “spouse” in this
context means a legal spouse, and that under
DOMA a legal spouse may not be of the same
sex as the employee.
Kozinski insisted, “But this isn’t the only
plausible reading of the FEBHA. Another way
of construing these statutory provisions is as a
set of general guidelines for medical benefit
plans, as well as a number of minimum requirements that such plans must satisfy.” Thus, according to Kozinski, the statute sets a floor, so
OPM would not be allowed to contract for insurance that did not extend to spouses and offspring of employees, but would be free to provide benefits to members of an employee’s
“family” other than spouse and children. Thus,
he suggests, OPM could decide to provide “
family’ benefits for individuals who do not
qualify as spouses under federal law, but who
are considered spouses under state law."” And,
pointing out the well-established practice of
avoiding difficult constitutional questions if it
is possible to do so through statutory construction, Kozinski opts to avoid the tough constitutional issue.
He seeks to justify his construction of the
statute by arguing that it “harmonizes” the statute with the Circuit’s equal employment oppor-
March 2009
tunity plan, which specifically prohibits sex
and sexual orientation discrimination, and
there is no doubt that refusing the benefits in
this case would discriminate on one or both of
those grounds.
What is more significant, coming from Chief
Judge Kozinski, is his brief discussion pointing
out why this would be a “difficult” constitutional issue. “If I were to interpret the FEHBA
as excluding same-sex spouses, I would first
have to decide whether such an exclusion furthers a legitimate governmental end. Because
mere moral disapproval of homosexual conduct
isn’t such an end, the answer to this question is
at least doubtful.” He briefly discusses Romer
v. Evans, 517 U.S. 620 (1996), in which the Supreme Court struck down Colorado Amendment 2, for the proposition that “disapproval of
homosexuality isn’t itself a proper legislative
end,” and notes the earlier decision in Reitman
v. Mulkey, 387 U.S. 369 (1967), in which the
court struck down a facially neutral housing law
that the Court found had the “design and intent” of weakening laws against housing discrimination, for the proposition that even a facially neutral law might be unconstitutional if
enacted with discriminatory intent.
“Whether DOMA’s sweeping classification
has a proper legislative end, or whether it reflects no more than an invidious design to stigmatize and disadvantage same-sex couples, is a
hard question,” continued Kozinski. “The inquiry conducted by the Court in Reitman into
the history and context of the California law was
searching and careful, and to conduct a similar
inquiry of DOMA would be a delicate and difficult task.”
I think, with all due respect, that Judge Kozinski slightly overstates the difficulty of the
task. One need only look at the context of
DOMA. The Hawaii Supreme Court had suggested that same-sex couples might be entitled
to marry, and sent the case for trial. The trial
was scheduled to occur in the fall of 1996, a national presidential and congressional election
year. Some incautious gay rights supporters had
fueled reports in the media that if Hawaii allowed same-sex marriages, couples could flock
there to marry and then compel recognition of
the marriages in their home states by using the
Full Faith and Credit Clause of the Constitution
(by the way, a dubious contention if one studies
marriage recognition doctrine in the U.S.). The
Republicans seized upon this as a “wedge issue” to exploit in the national election campaign, and Senator Dole, the putative Republican presidential candidate, introduced DOMA
in Congress. Seeking to neutralize the issue,
President Clinton, standing for re-election, announced his support for DOMA. The whole
thing was intensely political and did not reflect
any sort of deliberative legislative process demonstrating any kind of objective need for such a
law. Indeed, at the brief hearings held on the
Lesbian/Gay Law Notes
matter, one of the pre-eminent constitutional
law scholars in the country, Prof. Lawrence
Tribe of Harvard Law School, testified that the
Full Faith and Credit Clause would not mandate
recognition of same-sex marriages across state
lines, so that part of the proposed bill was irrelevant and unnecessary. At the time DOMA
was enacted (and signed into law in the middle
of the night with no ceremony by President
Clinton), there was no jurisdiction IN THE
WORLD that authorized same-sex marriages,
so a federal statute forbidding their recognition
for any purpose of federal law was a solution in
search of a problem. Although the Hawaii trial
judge did rule in favor of same-sex marriages,
the state legislature responded by swiftly proposing a constitutional amendment to overrule
the court, which was overwhelmingly adopted
by the people of Hawaii the following year while
the state supreme court cooperatively stalled in
scheduling a hearing on the state’s appeal of the
decision. And, in fact, same-sex marriages did
not become available, as a practical matter,
anywhere until after the turn of the century. So
at the time of its enactment, DOMA was entirely
symbolic — it was entirely about sending a
message of heteronormativity and supremacy
and moral disapproval of gay people.
In the course of his opinion, Judge Kozinski
acknowledges that in light of Lawrence v. Texas,
539 U.S. 558 (2003), and of recent 9th Circuit
precedent (to wit, Witt v. Dep’t of Air Force, 527
F.3d 806 [2008]), there would be a serious
question of whether the exclusion of a same-sex
spouse from federal employee benefits eligibility could be sustained. “The effect of Lawrence
and Witt on a discriminatory benefits law are far
from clear,” he said. “I would have to consider,
for example, the relative magnitude of the state
sanction here: Lawrence involved a criminal
penalty, but that penalty was only a small fine.
Golinski pays out of pocket to purchase additional health insurance for her spouse, and her
expenses each month exceed the total fine imposed in Lawrence. I would need to apply Witt‘s
multi-pronged balancing test or fashion my own
interpretation of Lawrence‘s requirements —
in either case, a major decision of constitutional
law.”
Since federal courts avoid making a “major
decision of constitutional law” if they don’t
have to, Kozinski chose the safer path of construing the statute to permit coverage of samesex spouses, and then ordering the administrators to process Golinski’s health benefits election form as submitted. “Any future health
benefits forms are also to be processed without
regard to the sex of a listed spouse,” he concluded. This is the chief judge of the Circuit
speaking, of course. Kozinski signed the opinion on January 12, and filed it on January 13,
but it was only posted to the court’s website on
February 4, together with the other opinion discussed below.
Lesbian/Gay Law Notes
Circuit Judge Stephen Reinhardt did not feel
similarly constrained in his February 2 ruling
on the internal grievance brought by Brad
Levenson, a federal public defender in the Central District of California, under the separate
but parallel non-discrimination policy governing employees of the federal defenders office.
As far as Reinhardt is concerned, the statute is
not ambiguous, only a legal spouse can be enrolled in the benefit plan, and the DOMA question must be confronted. After briefly reviewing
the statutory language, he concluded that the
“provisions defining family members to include spouses must be interpreted, pursuant to
DOMA, to include only opposite-sex spouses.”
Reinhardt points out that DOMA would not
limit Congress from providing that family members other than spouses may be included in the
federal employee benefits program, but DOMA
would preclude including same-sex spouses
within the definition of spouse.
Not surprisingly, given the views he’s expressed elsewhere, Reinhardt believes that the
provision in DOMA barring federal recognition
of same-sex marriages, when applied to this
case, is unconstitutional. “Although I adopt the
same remedy as the Chief Judge, I reach that
conclusion in a somewhat different manner. I
must reluctantly disagree with the view that
FEHBA is ambiguous. I believe instead that
the only reasonable reading of that statute is
that it does not permit coverage of families falling outside its definition of family member. Accordingly, I believe that I am compelled to
reach the constitutional issue. Doing so, I conclude that the application of DOMA to FEHBA
so as to deny Levenson’s request that his
same-sex spouse receive federal benefits violates the Due Process Clause of the Fifth
Amendment.”
Chills ran down my spine when I read that
sentence for the first time last night. I believe
that this may be the first time that a federal appellate judge has ruled — albeit in an informal,
non-precedential proceeding — that DOMA is
unconstitutional in a particular application.
Reinhardt suggested that some kind of
heightened scrutiny was likely applicable to
Levenson’s claim, noting Witt, but didn’t need
to go there, since he concluded that “the denial
of benefits here cannot survive even rational
basis review, the least searching form of constitutional scrutiny.” He asserted that “no such
basis exists.” He pointed out that cases such as
City of Cleburne and Romer made clear that “a
distaste for or disapproval of same-sex marriage or a desire to deprice same-sex spouses of
benefits available to other spouses in order to
discourage them from exercising a legal right
afforded them by a state” could not justify this
application of DOMA.
DOMA does not itself recite policy justifications, but Reinhardt focused on the House committee report on the bill, which identified three
March 2009
interests it was purportedly to serve: “the government’s interest in defending and nurturing
the institution of traditional, heterosexual marriage;” “the government’s interest in defending
traditional notions of morality;” and “the government’s interest in preserving scarce government resources.” Reinhardt observed that the
first interest was irrelevant in this case, because Levenson was “already married,” and
“Gay people will not be encouraged to enter
into marriages with members of the opposite
sex by the government’s denial of benefits to
same-sex spouses, and the denial will not discourage same-sex couples from entering into
same-sex marriages,” he opined, “so, the denial cannot be said to nurture’ or defend’ the institution of heterosexual marriage.”
The second interest, he asserted, violated the
“bare desire to harm” prohibition of Romer and
Cleburne; that is, legislation adopted for the
purposes of harming people with no other legitimate policy justification is unconstitutional.
“In addition,” he wrote, “denying married
same-sex spouses health coverage is far too attenuated a means of achieving the objective of
defending traditional notions of morality,’ as it
also is with respect to achieving the objective of
defending and nurturing the institution of traditional, heterosexual marriage.’” He also noted
that Romer and Lawrence rejected justifying
anti-gay discrimination based on “traditional
notions of morality.”
He found the third articulated interest no
more persuasive. “The denial of health insurance to same-sex spouses may in a comparatively few cases relieve the government of paying its portion of a family coverage premium.
However, that a government policy incidentally
saves the government an insignificant amount
of money does not provide a rational basis for
that policy if the policy is, as a cost-saving
measure, drastically underinclusive, let alone
founded upon a prohibited or arbitrary
ground.” Finding no other identifiable government interests that could justify refusing the
coverage, and finding as well that denying the
coverage “does not serve the government’s interest in promoting long-term relationships”
and if anything undermines an interest in promoting a child-rearing environment, Reinhardt
concluded there was no rational basis for distinguishing between different-sex and samesex spouses in providing the benefits.
Reinhardt concluded by ordering the administrators to process Levenson’s request, and
added, “Any future beneficiary addition requests are also to be processed without regard
to the sex of a listed spouse.” Reinhardt retained jurisdiction of the case “so that I may issue any further order that may be necessary to
ensure that Levenson’s spouse receives the
benefits to which he is entitled.”
Curiously, neither opinion mentions Proposition 8 and the controversy over whether it retro-
43
actively invalidated the marriages performed
during the window of opportunity. Even more
curiously, in light of Kozinski’s desire to avoid
the constitutional question, he doesn’t take advantage of Proposition 8 to either put off deciding the grievance until after the California Supreme Court rules on Prop 8’s validity (a ruling
that will occur on or before June 5, three months
after the scheduled oral argument on March 5),
or even to say that although the marriage in Golinski’s case may have been valid when the
grievance was filed, it is no longer valid so the
case is moot. He could have taken that route, I
think, to avoid deciding the question, but instead engaged in a species of statutory construction that is implausible, at least in Judge
Reinhardt’s view.
So, we now have a federal Circuit judge who
has said on the record that the non-recognition
provision in DOMA is unconstitutional as applied to the employee benefits entitlements of
federal court employees, and another who has
acknowledged that it raises a serious constitutional issue. Unfortunately, these are just internal grievance rulings, posted to the 9th Circuit
website, not formal opinions of the court that
will be published and can be cited as precedent.
On the other hand, these two opinions show
that intellectually honest federal appeals
judges have doubts about the constitutionality
of DOMA — at least the federal nonrecognition part, as applied to federal employee
benefit entitlements. Kozinski, a Reagan appointee who is politically conservative but libertarian and intellectually honest in his approach to politically charged legal issues,
raises serious questions about the constitutionality of DOMA while shying away from deciding the issue on his own. That’s an important
sign for the future. Although President Obama’s
gay rights agenda, as noted on the White House
website, includes getting rid of DOMA and extending federal employee benefits to same-sex
spouses, civil union partners, and domestic
partners, it is hard to tell when that will surface
as a legislative priority in light of the current
economic situation. In the meantime, Judge
Reinhardt’s opinion provides a roadmap for
federal employees who validly married to their
same-sex partners to bring forth similar claims.
While his opinion is not a binding precedent, it
is certainly a persuasive one. A.S.L.
Delaware Supreme Court Unanimously Rejects
Lesbian Co-Parent Custody Claim
The five-member Delaware Supreme Court
unanimously ruled on February 3 in Smith v.
Gordon, 2009 Westlaw 243030, that the unmarried co-parent of a child adopted by her
partner did not have standing to seek custody or
visitation when she and her partner ended their
relationship thirteen months after her partner
44
adopted their child. Reversing a 2007 ruling by
the New Castle County Family Court, the Supreme Court declared that it was up to the legislature, not the courts, to determine whether a de
facto parent should be allowed to seek custody
or visitation, but left open the possibility that
the Delaware Uniform Parentage Act (DUPA)
might be construed to recognize a co-parent’s
legal rights if the co-parent had lived with the
child for the first two years of its life.
The court invented pseudonyms for the parties in the case, calling them Lacey Smith and
Charlene Gordon. According to the opinion by
Justice Randy J. Holland, Gordon and Smith
became involved in a romantic relationship
during the summer of 1994. Gordon moved into
Smith’s house in February 1995. They eventually established a joint bank account to pay
their household bills, and met with a financial
advisor and an attorney to discuss their relationship, but they never held any sort of formal
commitment ceremony.
The court found that the evidence showed
that they “were recognized by friends and family as a long-term committed couple.” Early in
the relationship, they discussed having children, but they didn’t get really serious about it
until they had been together for five years. They
decided that Smith would become pregnant,
but attempts at donor insemination and in vitro
fertilization were unsuccessful.
Then they decided to adopt. For reasons not
explained in the court’s opinion, they selected
Kazakhstan as the country from which they
would adopt a child. Because Kazakh authorities would not allow an unmarried same-sex
couple to jointly adopt a child, Smith was to be
the adoptive parent. They traveled together to
Kazakhstan, where Smith adopted their child,
called A.N.S. by the court, in March 2003, and
they returned home to live together as a family.
Gordon took paid adoption leave from her job
and stayed home with A.N.S. for nearly two
months. After Gordon returned to work, Smith
began to work from home. Gordon enrolled
A.N.S. as her dependent on her employee benefit plan.
Shortly after returning home to Delaware,
they met with an attorney to discuss having
Gordon adopt A.N.S. in a second-parent adoption proceeding. The attorney purportedly told
them that such a proceeding could not begin
until Gordon had been serving as a parent of
A.N.S. for at least a year. By the time a year had
passed, it appears that the relationship of the
two women had deteriorated, because Gordon
moved out of the house at Smith’s request on
May 2, 2004.
Smith allowed Gordon to visit with the child a
few times, but then cut off contact early in June
2004. Gordon filed her lawsuit soon thereafter,
seeking joint custody and visitation rights as a
de facto parent. She later amended her complaint to claim that she was a legal parent of the
March 2009
child under the Delaware Uniform Parentage
Act.
During the summer of 2004, the parties negotiated an agreement under which Gordon
could resume having contact with A.N.S.,
pending the outcome of the case. Ultimately,
the Family Court judge decided that Gordon
could not qualify as a legal parent under the
DUPA, but that she was a de facto parent and,
as such, qualified to seek joint custody and visitation, which the court granted to her. Smith appealed. Gordon did not cross-appeal the Family
Court’s decision that she was not a legal parent
under the DUPA.
The Supreme Court noted that the Family
Court judge had applied a gender neutral interpretation to the DUPA, Sec. 8–204(a)(5), in determining that Gordon was not a legal parent.
Under the DUPA, the court intimated, it was
possible that Gordon might have qualified as
such had the women broken up more than two
years after the adoption of A.N.S.
Giving a reasonable gender neutral interpretation to the statute, said the court, Gordon
might have been able to establish legal parental
status under a provision stating that “a man is
presumed to be the father of a child if for the
first two years of the child’s life, he resided in
the same household with the child and openly
held out the child as his own.” However, Gordon and A.N.S. lived together in the same
household for only about thirteen months, so
this route to legal parenthood was not available.
The Family Court decided, alternatively, that
Gordon was a de facto parent and, as such, entitled to seek custody under the common law jurisdiction of the court. But the Supreme Court
found that by enacting the revised version of the
DUPA in 2004, the Delaware legislature had
intended to make the statute the exclusive way
to establish parental status. Smith had argued
to the Family Court and on appeal that Gordon
did not meet the legal test of being a de facto
parent, but the Supreme Court found it unnecessary to address this claim, because it found
de facto parent status irrelevant to Gordon’s
claim for custody.
Justice Holland noted that by the time the
legislature acted in 2004, it must have been
well aware of the diversity of family forms in the
state, as a result of extensive discussion of this
issue in law reviews and the developing body of
court decisions from other jurisdictions, as well
as Delaware cases allowing second-parent
adoptions. But by designating the DUPA as the
exclusive way of determining parentage in the
state, the legislature was held to have implicitly
rejected the de facto parenting theory, at least to
the extent that it would extend beyond the
DUPA provision mentioned above involving a
person who resided with a child for its first two
years and held the child out as “his own.”
Thus, although Gordon lost her claim to custody and visitation, the court’s decision does
Lesbian/Gay Law Notes
not entirely close the door to potential custody
and visitation claims for same-sex co-parents.
Rather, its discussion of the DUPA leaves open
the possibility that a co-parent who had a longer
relationship with a child than Gordon had
might be able to prevail in a future case. A.S.L.
Campaign Sunshine Laws Lead to Different
Conclusions in Anti-Gay Initiative Cases
Litigation concerning state laws requiring
transparency concerning financial support for
initiative campaigns has produced differing
opinions in cases from Montana and California.
On January 30, U.S. District Judge Morrison C.
England, Jr., rejected a challenge by the official
proponents of California Proposition 8 (the
anti-gay marriage amendment) to a state law requiring disclosure of names and other identifying information about all donors of $100 or
more to the initiative campaign, in Protectmarriage.com v. Bowen, 2009 WL 440211 (E.D.
Cal.), but on February 25, a panel of the U.S.
Court of Appeals for the 9th Circuit ruled that
the state of Montana’s requirement that a
church which provided what the court considered de minimus financial assistance to the effort to put Citizen Initiative 96 (anti-gay marriage amendment) on the ballot violated the
church’s First Amendment rights. Canyon Ferry
Road Baptist Church of East Helena, Inc. v. Unsworth, 2009 WL 455522. The Protectmarriage ruling is, of course, appealable to the 9th
Circuit. However, differences between the two
cases, and comments by the majority of the 9th
Circuit panel, suggest that the California ruling
is not likely to be reversed on appeal.
Montana requires that any organization providing financial assistance in connection with a
political candidacy or ballot measure filed financial reports with the state disclosing the
identity of all donors of $35 or more. During the
period in June 2004 leading up to the deadline
for submitting petition signatures to get CI–96
on the ballot, several members of the church
were active in the effort. One of those individuals used the church’s photocopy machine to
copy petitions (using her own paper), the pastor
authorized the petition campaign to leave petitions in the church lobby, during regular church
services the pastor urged congregants to sign
the petitions, and the church presented a film to
a group of congregants about the proposed Federal Marriage Amendment, followed by comments about the need to get the pending Montana Marriage Amendment on the ballot and
passed. The church’s effort supplied 90 valid
signatures towards the effort. The Marriage
Amendment qualified for the ballot and was approved by voters, with 66.5% voting yes.
A group opposed to the ballot measure filed a
complaint against the church with the Commissioner of Political Practices, charging that the
church violated the state’s campaign finance
Lesbian/Gay Law Notes
laws by failing to register as an “incidental political committee” and report the financial
value of its contributions. The Commisioner determined that the church had violated the law,
and the church sued, claiming that the law violated its constitutional rights of free exercise of
religion and free speech. District Judge Donald
W. Molloy upheld the Commissioner’s ruling,
and the church appealed. The panel reversed,
two members premising their votes on freedom
of speech, the third on free exercise of religion.
There was general agreement among the
judges, however, that whichever theory one
used, it was inappropriate for the state to impose a burdensome registration and disclosure
requirement in a case where there was so little
financial contribution from the church as to
characterize it as de minimus. In his concurring
opinion arguing the religion point, Circuit
Judge Noonan emphasized that if the purpose
of the filing and disclosure requirements was to
make public who was behind a particular initiative, that purpose was accomplished here
without filing, since the pastor was open about
supporting CI–96. The majority used heightened scrutiny to evaluate the free speech claim,
and found that while the state’s interest in
openness in initiative campaigns was strong,
application in this de minimus case was not
necessary to accomplish that purpose. Judge
Noonan would have sued strict scrutiny applying the free exercise clause, finding that the law
lacked content neutrality because it exempted
the news media from filing and disclosure requirements.
The majority opinion, written by Circuit
Judge Canby, contrasts the situation in California. “With respect to the remaining interest, we
have little trouble concluding that Montana’s
informational interest is generally important’ in
the context of Montana’s statewide ballot issues. Indeed, we recently observed that California had produced evidence sufficient to
quality its informational interest in disclosure
of contributions as compelling.’ … Although
the evidence put forth by Montana in this case
is not as formidable as that provided by California in Cal. Pro-Life II, Montana’s case is convincing and its burden lighter,” observing in a
footnote that the court in that case had applied
strict scrutiny. But, while the court concludes
that Montana has an important interest at stake,
at the same time it notes that the interest is
mainly concerned with “contributions” and
“expenditures,” while this case focused on imputing some kind of financial value to statements made in a sermon or a congregational
meeting rather than monetary contributions
made directly to a campaign. The Montana
situation as applied here was aimed at the value
of speech rather than at the use of money.
In Protectmarriage, Judge England had little
trouble concluding that the state’s disclosure
requirements in the context of the Proposition 8
March 2009
case were constitutional. Assuming without deciding that “strict scrutiny” would apply, England found that the state has a compelling interest in forcing disclosure of the identity of those
behind constitutional initiatives. Unlike Montanans, Californians are deluged with numerous statutory and constitutional initiatives at
virtually every election, somes multiple initiatives taking different positions on the same subject, creating a cacophony’ of voices, and prior
9th Circuit decisions had found that state’s interest in making transparent who was behind
particular measures was compelling. Under the
circumstances, the court found that the requirement to list names and identifying information about donors of $100 or more was a sufficiently narrowly-tailored method of giving the
electorate this vital information to survive judicial review.
Judge England rejected the argument the minority issues groups would be unable to raise
sufficient money to mount their campaigns due
to deterrence of donors whose identities were
being disclosed. He pointed out that in this
case the proponents had “orchestrated a massive movement to amend the California Constitution,” and had won the vote. The heart of the
proponents’ case was their argument that disclosing the donors’ identity subjected them to
threats and potential harm. “Plaintiffs’ claim
would have little chance of success in light of
the relatively minimal occurrences of threats,
harassment, and reprisals,” wrote Judge England. “Unlike prior cases, in which plaintiffs alleged to have suffered mistreatment over extended periods of time,” wrote England, “the
alleged harassment directed at Proposition 8
supporters occurred over the course of a few
months during the heat of an election battle surrounding a hotly contested ballot initiative.
Only random acts of violence directed at a very
small segment of the supporters of the initiative
are alleged.”
England was also unwilling to embrace the
argument that “individuals should be free from
even legal consequences of their speech. That
is simply not the nature of their right,” he insisted. “Just as contributors to Proposition 8 are
free to speak in favor of the initiative, so are opponents free to express their disagreement
through proper legal means. While the Court is
cognizant of the deplorable nature of many of
the acts alleged by Plaintiffs, the Court also
must reiterate that the legality or morality of any
specific acts is not before it. Thus, as much as
the Court strongly condemns the behavior of
those who resort to violence, and/or other illegal
behavior, the Court need not, indeed cannot,
evaluate the proper legal consequences of those
actions today.” England also noted that some of
the actions cited by the plaintiffs in seeking
protection for the anonymity of their donors
“are mechanisms relied upon, both historically
and lawfully, to voice dissent. The decision and
45
ability to patronize a particular establishment
or business is an inherent right of the American
people, and the public has historically remained free to choose where to, or not to, allocated its economic resources. As such, individuals have repeatedly resorted to boycotts as
a form of civil protest intended to convey a powerful message.” England also noted, contrary to
plaintiff’s argument, that California’s disclosure requirements were not intended by the
state to assist boycotters, but rather to education voters. “The fact that Plaintiffs’ opponents
may use publicly available information as the
basis for exercising their own First Amendment
rights does not in any way diminish the State’s
interest.”
Responding to the plaintiffs’ argument that
the threshold of $100 for reporting donations
was too low, England listed in a footnote the
threshold requirements in states that have donor disclosure laws, showing that actually California’s threshold is higher than many other
states. (Note above that Montana’s is $35.)
Many other states have $100 thressholds, and
only a minority of states have higher ones.
Thus, England found the $100 figure to be narrowly tailored to meet the state’s purpose without unduly infringing donors’ rights. England
also rejected the argument that the state’s compelling interest did not extent to post-election
disclosure. (The immediate spur to the lawsuit
was the then-rapidly advancing date for disclosing donations made during the final days of
the campaign, and the plaintiffs’ efforts to protect their donors from adverse publicity and
boycotting at the hands of anti-Prop 8 forces.)
England emphasized that the situation was
fluid with initiatives. “No legislation is carved
in stone, incapable of repeal, nor do ballot initiatives, once passed, become a legacy that future generations must endure in silence,” he
wrote. “Indeed, it is the initiative process itself
that directly allows individuals to affirm or correct prior decisions. To assume that the passage
of an election draws a line in the sand past
which no issues remain open to public debate is
simply not congruent with the form of democracy the people of California have determined
to employ. Thus, it is possible that the postelection light shed on those contributors who
donated during the final weeks of the campaign, and who continue to donate today, might
reveal information the electorate requires in order to evaluate the appropriateness of its decision.”
The court rejected the argument that failing
to post-pone the filing date through injunctive
relief would result in irreparable injury to the
plaintiffs, and denied the motion for preliminary injunction. A.S.L.
46
Manhattan Surrogate Recognizes Same-Sex
Marriage in Probate Proceeding
New York County Surrogate Kristen Booth Glen
issued a decision on January 26, 2009, in Matter of the Estate of H. Kenneth Ranftle, File No.
4585–2008 (N.Y.L.J., Feb. 3, 2009, p. 27), recognizing the Canadian same-sex marriage of J.
Craig Leiby and the late H. Kenneth Ranftle in
a probate proceeding. Contrary to a ruling issued last year by Queens County Surrogate
Robert Nahman, who expressed doubt in Will of
Alan Zwerling, 2008 N.Y. Misc. LEXIS 5651,
240 N.Y.L.J. 49 (September 9, 2008), about
whether a Canadian same-sex marriage would
be recognized in a New York probate proceeding in the absence of a ruling on the question by
the Appellate Division for the 2nd Department
(in which Queens County is located), Surrogate
Glen expressed no such reservation, even
though the there is similarly no ruling yet by the
Appellate Division for the 1st Department (in
which Manhattan is located).
Rather, applying established principles of
New York marriage recognition law and citing
the 4th Department’s decision from last February 1 in Martinez v. County of Monroe, 50 App.
Div. 3d 189 (2008), Surrogate Glen concluded
that “Mr. Leiby is decedent’s surviving spouse
and sole distributee,” so there was no need for
formal notification of Ranftle’s surviving siblings about the pendency of the proceeding,
and Surrogate Glen signed the probate decree,
allowing Mr. Ranftle’s last will and testament to
go into effect.
The potential impact of this first decision by
an elected New York Surrogate to recognize a
same-sex marriage contracted out-of-state is
huge. A surviving spouse as sole distributee
would be automatically entitled to inherit if the
decedent passed away without leaving a will.
Under the state’s Estates, Powers and Trusts
Law, a surviving spouse of an intestate decedent who is a sole distributee inherits the entire
estate. See N.Y. Estates, Powers & Trusts Law,
Art. 4, sec. 4–1.1. If the intestate decedent also
had children, they are distributees as well, and
the surviving spouse gets half of the estate plus
$50,000, the rest going to the other distributees. If a married person without children dies
leaving a will, the only person who can contest
the will is the surviving spouse. By contrast, if
an unmarried person dies leaving a will, those
who would inherit as distributees of there were
no will are entitled to be notified of the probate
proceeding so they can intervene to protect
their potential interest in the estate.
If an unmarried person dies with a will, then
next of kin are entitled to be notified of any probate proceeding, since they would inherit if the
will were held invalid. This was the situation in
the Zwerling cas, where the Queens County
Surrogate, questioning the validity of the decedent’s same-sex marriage, required that dece-
March 2009
dent’s parents be notified as next of kin so they
could decide whether to contest the will. As it
turned out, Alan Zwerling’s parents were happy
to waive their rights and allow their son’s will to
be probated without contest.
Leiby and Ranftle were partners for more
than twenty years. Last spring, after the Martinez decision and Governor David Paterson’s directive to state agencies concerning recognition
of same-sex marriages, they decided to go to
Canada to marry, confident that their marriage
would be legally recognized in New York. Their
ceremony was performed in Montreal on June
7, 2008. Mr. Ranftle passed away on November
1, 2008. He was survived by his spouse and
three siblings, two of whom are also gay, incidentally. According to Mr. Leiby, Mr. Ranftle
was one of five brothers, four of whom were gay
and all of whom were close to Leiby and
Ranftle. Ranftle’s parents are both deceased.
Due to the court’s recognition of his marriage,
Ranftle’s will was able to go through probate
quickly without any need to involve his surviving brothers in the proceeding.
The Ranftle Estate is represented by the
Manhattan law firm of Weiss, Buell and Bell.
A.S.L.
New Jersey Trial Judge Recognizes Canadian
Marriage for Divorce Jurisdiction
New Jersey Superior Court Judge Mary Jacobson ruled on Friday, February 6, that her court
would exercise jurisdiction over a petition
seeking a divorce from a Canadian same-sex
marriage. Judge Jacobson’s ruling was not in
the form of a written order, and was issued from
the bench to resolve a dispute between the petitioner, La Kia Hammond, and the office of the
New Jersey Attorney General, Anne Milgram,
which maintains that same-sex marriages contracted in other jurisdictions are recognized
only as civil unions in New Jersey, and are thus
subject to the law governing dissolution of civil
unions, not the divorce law. Hammond v. Hammond, Docket No. FM–11–905–08–B (N.J. Superior Ct., Chancery Div., Family Part, Mercer
County).
Anticipating the effective date of the
recently-enacted Civil Union Act in 2007,
then-Attorney General Stuart Rabner issued a
formal A.G. Opinion, 3–2007, on February 17,
2009, setting forth the view of the office, which
has not changed under his successor, that because the legislature had clearly excluded
same-sex couples from marrying in New Jersey
when it opted to adopt a Civil Union Act in response to the state Supreme Court’s decision in
Lewis v. Harris, 908 A.2d 196 (N.J. 2006), New
Jersey should use its own legal forms — civil
union or domestic partnership — in deciding
how and to what extent to recognize the legal relationships of same-sex couples that had been
formalized in other jurisdictions. Rabner
Lesbian/Gay Law Notes
opined that those who obtained Civil Unions in
other states comparable to the unions being established in New Jersey under the new law
should be recognized as having civil unions,
and those with relationships carrying significantly fewer rights should be recognized under
the similarly-limited N.J. Domestic Partnership
Act. After noting that marriage was available to
same-sex couples in several jurisdictions, including Canada and Massachusetts, Rabner
opined that these should be recognized as civil
unions in New Jersey.
In the case pending before Judge Jacobson,
Hammond v. Hammond, the petitioner and respondent had been married in British Columbia, Canada, in 2004, after a long relationship
in which they were raising children together.
They resided together after the marriage in
Maryland, but their relationship ended and La
Kia Hammond moved with her daughter to New
Jersey, where she has formed a relationship
with another woman whom she would like to
marry. Complicating factors: she is still legally
married to her former partner, Kinyati Hammond, and she has been diagnosed with a serious medical condition with a relatively shortterm survival prognosis. So she wants to marry
as soon as possible, and hasn’t the time to move
to Canada and establish sufficient residency to
get a divorce there. In addition, she is concerned that Canadian authorities might not
consider a “dissolution of civil union” from
New Jersey as having effectively terminated
her Canadian marriage, a prerequisite to marrying her new partner there.
Confronting these facts, Jacobson concluded
that the Hammond marriage should be recognized for the purpose of establishing jurisdiction under New Jersey’s divorce law. Jacobson
relied on the traditional principles of New Jersey marriage recognition law dating back to the
1800s which, in common with virtually all
other states, provide that a marriage that was
lawful where it was contracted will be recognized in New Jersey provided that doing so does
not violate the public policy of the state. New
Jersey has never adopted a constitutional
amendment banning the performance or recognition of same-sex marriages. Neither has it
adopted a so-called defense of marriage act
strictly precluding their recognition. What we
have in New Jersey is a state Supreme Court
ruling holding that same-sex couples are entitled to obtain legal recognition of their relationships equal in terms of state law with the recognition accorded to different-sex couples — a
constitutional mandate that the Supreme Court
opined could presumptively be met by a civil
union statute, which is what the legislature
passed.
Jacobson indicated that she was ruling only
on the question whether her court has jurisdiction over a divorce proceeding involving the
Hammonds, and not on a more general question
Lesbian/Gay Law Notes
of whether the marriage must be recognized for
all purposes in New Jersey. That is an appropriately cautious approach when confronting a
case of first impression. After all, the issue of
marriage recognition will naturally arise in particular applications rather than in the abstract.
The judge decided this issue based on the
facts of the case before her, concluding that under the circumstances it would not violate the
public policy of the state to recognize the Hammond marriage for the limited purpose of granting a divorce, and she scheduled a hearing for
March on the divorce petition.
Kinyati Hammond had not responded to the
petition or appeared in the case, and certainly
had not sought to oppose La Kia’s petition. The
only opposition came from the office of Attorney
General Anne Milgram, arguing that the court
should consider granting a dissolution of civil
union but not a divorce. There hasn’t been an
announcement yet whether the Attorney General will seek to appeal this interim order.
The court’s ruling is consistent with a growing body of court decisions in neighboring New
York, where an adverse ruling on same-sex
marriage by the highest court in the state has
not stopped trial and intermediate appellate
courts from concluding that traditional marriage recognition principles of New York law —
similar to those followed in New Jersey — not
only allow state officials to adopt policies recognizing such marriages, but indeed compel
their recognition. Perhaps New Jersey will follow New York in this as more courts get involved in the question.
Larry Lustberg, Ed Barocas and Stephen Hyland, acting as cooperating attorneys for the
ACLU, jointly represent La Kia Hammond.
Lustberg argued the marriage recognition issue, based on a jointly-authored brief. Hyland
maintains a website with information about legal recognition for same-sex partners in New
Jersey, and is an active proponent for achieving
the right of same-sex couples in that state to
marry.
We have received a copy of the transcript
from counsel scanned into a pdf file and would
be happy to send it to anybody who wants one.
A.S.L.
Federal Court Rejects Constitutional Claims
Against NYC by Transgender Inmate
Mariah Lopez, a pre-operative transsexual who
had spent various short stays in a New York City
jail, brought suit against the city and numerous
officers for constitutional and statutory violations of her civil rights. Lopez v. City of New
York, 2009 WL 229956 (S.D.N.Y. Jan. 30,
2009). Lopez’s allegations centered on the
housing and medical treatment she received,
such as being forced to wear male clothing and
a diminishment of the female hormones she had
been prescribed. Although Judge Buchwald
March 2009
handed Lopez a small victory by ruling that
Lopez’s claims were not barred by the Prison
Litigation Reform Act, the defendants were
granted their motion for summary judgment on
all counts — mostly due to the lack of documentary evidence on Lopez’s part.
Lopez brought claims against various officers of the jail for excessive force in violation of
the Eighth Amendment. However, Lopez was
unable to properly identify all the defendants
she named in her suit. Further, she admitted
that she was not physically touched by some of
the officers, a requirement for any claim of unconstitutional excessive force. For those instances in which physical contact was properly
alleged, Lopez failed to carry her burden of establishing that the contact was severe enough to
be something other than a good-faith effort to
maintain discipline. There was also no medical
evidence of any scrapes or bruises on Lopez’s
body in the jail records, even though one alleged beating occurred while she was on her
way to the medical center. Judge Buchwald also
denied Lopez’s claims for emotional distress,
as such allegations require a prior showing of
physical injury in the context of an 8th Amendment constitutional tort claim..
Lopez also brought claims against two doctors of the jail for deliberate indifference to her
medical needs in violation of the Eighth
Amendment. Although Judge Buchwald considered Gender Identity Disorder a serious
medical condition, Lopez failed to allege deprivation of treatment sufficient to qualify as deliberate indifference. Since Lopez admitted
that she was given hormones “most of the
time,” she had to allege that the level of treatment she did receive was insufficient to treat
her condition. However, Lopez did not present
any medical evidence to support this claim.
Moreover, the documents showing reduced hormone treatment identified other treating physicians than the doctors against whom Lopez
brought suit.
Judge Buchwald also granted summary judgment to the defendants on the claims brought
against a commissioner and two wardens of the
jail. Lopez alleged that these defendants had
formulated or enacted policies to deprive her of
her rights by forcing her to wear male clothing,
housing her with males and denying her gay
housing, and placing her in a disciplinary
classroom without cause. Judge Buchwald
noted the lack of authority stating that transgender prisoners may choose their own clothing
and pointed out that defendants would likely be
qualifiedly immune, as there was no clearly established constitutional right at stake. Unfortunately, Judge Buchwald did not discuss
whether prisoners of one gender could be
forced to wear clothing of another gender, but
rather focused on Lopez’s identification as a
transgender person rather than as a woman.
47
The evidence submitted regarding Lopez’s
housing claims was found insufficient to show
that the defendants acted with deliberate indifference. Judge Buchwald also held that the policy of placing “preoperative transsexuals with
prisoners of like biological sex” was rational, as
there would be concerns for the safety of female
inmates housed with a transgender inmate.
This argument, of course, is frequently paraded
about to deny transgender people many rights,
such as the use of safe restrooms, and ignores
the very real threat of physical danger in putting an inmate with easily identifiable female
sexual characteristics in the general male inmate population.
Lopez’s allegation of being placed, without
cause, in a disciplinary classroom failed for
lack of documentary evidence. As the policies
concerning transgender inmates evaluated by
Judge Buchwald were found to be constitutional, Lopez’s claim against the City of New
York failed as well. Judge Buchwald declined
to exercise pendant jurisdiction over the remaining state and city law claims, dismissing
these without prejudice. Chris Benecke
Christian Student Groups Must Comply With
California State University Nondiscrimination
Policy to Obtain Formal Recognition
The U.S. District Court for the Southern District
of California has granted summary judgment
for two California State University campuses
against Christian student groups that were denied formal recognition on campus because of
discriminatory membership policies conflicting with University nondiscrimination policies,
in Every Nation Campus Ministries at San Diego State University v. Achtenberg, 2009 WL
297703 (S.D. California, Feb. 6, 2009).
All four groups applied for formal recognition from the University in 2004 and 2005,
seeking benefits including allocated funds and
access to facilities. The groups submitted constitutions and bylaws requiring members be
Christians “who have professed their faith in
the Lord Jesus Christ,” and not “individuals
who believe they are innately homosexual, or
advocate the viewpoint that homosexuality is a
natural part of God’s created order.” The groups
refused to provide assurances that they would
not discriminate on a number of bases, including religion and sexual orientation, as required
by the University.
In all four cases, the University denied the
applications because the groups failed to provide the nondiscrimination assurances. The
student groups brought suit in federal court, arguing that: 1) their exclusion of certain individuals as members was an act of expressive association protected by the First Amendment; 2)
forcing them to comply with University nondiscrimination policy would be unconstitutionally
compelled speech; 3) the University nondis-
48
crimination policy was not view-point neutral
and thus violated the First Amendment Free
Exercise Clause; and 4) the University enforced its nondiscrimination policy in a manner
that singled them out for disparate treatment in
violation of the Fourteenth Amendment’s Equal
Protection Clause.
Both the University and the student groups
moved for summary judgment, however, the
case was delayed while the Court of Appeals for
the Ninth Circuit ruled on several relevant
cases, including Truth v. Kent Sch. Dist., 542
F.3d 634 (9th Cir. 2008). District Judge Larry
Alan Burns, writing for the court, noted that the
student group policies did not discriminate
against homosexuals per se because they “did
not necessarily exclude all gays or only gays,”
but that the distinction did not affect the outcome of the case.
Judges Burns rejected the student groups’
first argument, and, based on the Truth case,
held that because the student organization program was a limited public forum, the university
policy need only be viewpoint-neutral and reasonable in light of the purposes of the program
to be upheld. He further held that the restriction was reasonable in light of the legitimate
nondiscriminatory policy “sought to be advanced in the public higher education arena.”
Judges Burns rejected the student groups’
compelled speech argument, holding that the
nondiscrimination policy was a regulation of
conduct, not speech-associative expression.
He also rejected the Free Exercise Clause argument, finding that the nondiscrimination policy
was viewpoint-neutral, generally applicable,
and did not impose burdens only on conduct
motivated by religious belief.
Finally, Judges Burns rejected the student
groups’ Equal Protection challenge, holding
that since the nondiscrimination policy was facially neutral, it was the student groups’ burden
to prove a disparate impact. As the groups
failed to show that the University had recognized any student group whose members had
refused to comply with the nondiscrimination
policy, Judge Burns held they had not met their
burden.
Accordingly, as the student groups had failed
to prove any of their four claims, Judge Burns
granted summary judgment on all claims for the
University. Bryan C. Johnson
New Jersey Superior Court Recognizes
Ex-Husband’s Same-Sex Partner as Family
Member
In C.S. v. E.A., an unpublished order, New Jersey Superior Court Judge Deborah SilvermanKatz (Camden County) recognized two gay men
as a “family unit” in the context of a custody
and visitation dispute between one of the men
and his ex-wife, the birth mother of his child.
March 2009
The two men had a long-term relationship
prior to E.A.’s marriage to C.S. E.A. is bisexual,
and fathered the child, but the marriage did not
work out, the parties separated before the child
was born, and C.S. sued for divorce. Prolonged
litigation about custody and visitation ensued,
complicated by E.A.’s return to New York to reside with his former partner, after being asked
to leave the family home by C.S. At an interim
stage in the litigation, a trial judge (not Judge
Silverman-Katz) signed an order conditioning
E.A.’s visitation rights on E.A. and his partner
moving to New Jersey in reasonable proximity
to the mother’s home. This responded to the
mother’s contention that E.A., who is younger
than his male partner, was not competent to
handle the infant on his own. Another complication was the prolonged residence in the
mother’s home of the boyfriend of one of her
adult daughters. The boyfriend has a criminal
record and maintains a website showing that he
owns guns and subscribes to anti-Semitic views
(E.A.’s partner is Jewish), which alarmed E.A.
and prompted him to petition for sole residential custody. By the time of the hearing that led
to the recent unpublished order, C.S. claimed
that the man was no longer living in her house.
In the order issued on February 13, Judge
Silverman-Katz left residential custody with
the mother, but ordered a liberal visitation
schedule for E.A. and his partner, and ordered
all parties not to disparage each other (or E.A.’s
male partner) in the presence of the child, a son
now 5 years old. Still pending is E.A.’s appeal
of another judge’s denial of his petition for sole
residential custody. As an interesting side-note,
the case was reassigned to Judge Katz after
E.A.’s partner, a lawyer, filed a disciplinary
complaint against the previous judge who was
presiding over the case, concerning ex parte
communications between the judge and C.S.’s
attorney, as well as the judge’s conduct of the
two hearings that took place before him, during
which he refused to hear relevant expert testimony and asserted that he did not hear live witnesses in his cases.
Attorney Lauren H. Kane represents E.A..
A.S.L.
SLDN Opposes Supreme Court Review of Gay
Military Case
The Servicemembers Legal Defense Network
(SLDN) filed a brief with the Supreme Court on
January 26, responding to the petition by James
E. Pietrangelo, II, which had asked the Court to
review a recent decision by the U.S. Court of
Appeals for the 1st Circuit in Cook v. Gates, 528
F.3d 42 (1st Cir. 2008), rejecting a constitutional challenge to the “Don’t Ask, Don’t Tel”"
(DADT) military policy. SLDN asked the Supreme Court not to review the case.
Pietrangelo, who was discharged from the
service for being gay, separated himself from
Lesbian/Gay Law Notes
the other plaintiffs in the SLDN test case that
was filed in federal court in Boston, and appealed to the 1st Circuit on his own. The appeals court consolidated his appeal with the
SLDN appeal, but by proceeding separately
Pietrangelo preserved his right to appeal further in case SLDN did not want to continue pursuing the case.
The 1st Circuit ruled after a panel of the 9th
Circuit, based in San Francisco, had ruled in
Witt v. Department of the Air Force, 527 F.3d 806
(9th Cir. 2008), overturning a trial judge’s decision to dismiss the case, and sending it back to
the federal district court in Washington State
for discovery and trial. SLDN concluded that
Witt would make a better vehicle to bring this
question before the Supreme Court, because
there will be a full trial record. By contrast, because SLDN’s test case was dismissed before
trial, there is no full factual trial record in the
case.
Responding to Pietrangelo’s petition, the
SLDN brief agrees with him that DADT is unconstitutional and that the decisions by the
lower courts were wrong, and tells the Court
that if it grants review, SLDN will seek to participate strongly in advocating for striking down
the policy. But it urges the Court not to grant review, arguing that it would be “premature” to
do so.
SLDN notes the lack of a factual record in
Cook, which will be solved by allowing the 9th
Circuit case to go forward. Pietrangelo argued
that granting review in this case would provide
an opportunity for the Court to resolve differences among the lower courts about how to interpret and apply Lawrence v. Texas, 539 U.S.
558 (2003), as a precedent, but the SLDN brief
downplays this, pointing out that military cases
are different from the other contexts in which
the meaning of Lawrence arises, and not necessarily the best vehicle for dealing with those issues. In addition, at a general doctrinal level,
the 1st and 9th Circuits agreed that the policy
was subject to heightened scrutiny, so the differences between them were not so great. The
9th Circuit has not held the policy unconstitutional, SLDN observed, but merely sent it back
to a trial court for further consideration.
Secondly, and perhaps even more importantly, SLDN dangled in front of the Court the
chance that it could avoid deciding this issue
forever, since it appears that the political
branches may be moving on the question.
President Obama pledged during his election campaign to end the DADT policy, his
press secretary has answered the question
whether that promise would be kept with an
unequivocal “yes,” and the Administration’s
policy agenda, posted on the new White House
website immediately upon the commencement
of the Obama Administration at noon on January 20, pledges an end to the gay ban in the
military.
Lesbian/Gay Law Notes
The press has reported that President Obama
intends to deal with this issue in a very deliberative manner, asking for the Pentagon to study
the implications of ending the ban and report
back its recommendations before he takes action. This approach contrasts with the crash
and burn example of the Clinton Administration, where President Bill Clinton reiterated his
promise to end the earlier version of the ban immediately on taking office, resulting in a firestorm of protest from the Pentagon and in Congress that ultimately produced the
deceptively-named “Don’t Ask, Don’t Tell,” deceptive because there is plenty of asking and
some people are booted out even if they don’t
tell. By contrast, the prospect of a careful deliberative progress towards ending the ban under
Obama has kept the Pentagon from freaking out
and has forestalled knee-jerk congressional opposition.
Of course, times have changed as well. The
public, which supported the ban in 1993, now
strongly opposes it, and many of the original
proponents of DADT, including then Chairman
of the Joint Chiefs of Staff General Colin Powell,
then-U.S. Rep. Bob Barr, and then-U.S. Senator
Sam Nunn, have called for it to be reconsidered. An impressive list of retired top military
brass have also called for the policy to be
ended. In light of the time it takes for pre-trial
discovery, trial, post-trial decision on the merits, it is possible that unless the government petitions for review of the 9th Circuit’s decision to
revive the case and remand it for trial, the matter may be resolved politically before it needs to
be resolved judicially.
Pietrangelo appears to have composed his
petition to the court on his own, as no lawyer or
law firm is identified on it. By contrast, SLDN
had assistance from a substantial roster of legal
talent, including Julian Davis Mortenson of
Fordham Law School, Daniel C. Richenthal,
Paul R.Q. Wolfson, and Daniel Estes of Wilmer
Cutler Pickering, Hale and Dorr LLP in New
York, Washington, and Boston, and SLDN staff
members Aaron D. Tax and Emily Hecht. A.S.L.
Federal Civil Litigation Notes
Supreme Court — The Court denied a petition
for certiorari filed in Morrison v. Board of Education of Boyd County, 521 F.3d 602 (6th Cir.
2008), cert. denied, 2009 WL 425104 (Feb.
23, 2009), in which the circuit court affirmed a
ruling that the school’s adoption of requirements for anti-harassment training and a written harassment-discrimination policy intended
to stifle anti-gay hate speech had not caused
any actionable harm to an anti-gay student who
felt his right to speak his beliefs at school had
been chilled. Of course, the Alliance Defense
Fund represents the student, who has since
graduated and told reporters that he really did
not know much about the case. So much for the
March 2009
“real case and controversy” requirement when
ADF recruits a plaintiff in order to press its
agenda in the courts. Lexington Herald-Leader,
Feb. 24, 2009.
Arkansas — U.S. District Judge Susan
Webber Wright accepted a recommendation by
Magistrate Judge Henry L. Jones, Jr., to dismiss
a complaint by a gay prisoner about his treatment by the corrections officer who was in
charge of the unit to which he was assigned for
several months while confined in the Pine Bluff
Unit. Inmate Kellie Landrio alleged that Sgt.
Corley “yelled at him and discriminated
against him because of plaintiff’s past life style
as a homosexual,” that Corley “lied to him and
talked bad’ to him.” Landrio wanted the court
to order that Corley be fired and that Landrio be
compensated for his emotional distress. He also
claimed that Corley lied to a classification committee to get Landrio assigned away from the
work crew he supervised. Judge Jones concluded that Landrio’s allegations contained
nothing actionable, and furthermore that the
Prison Litigation Reform Act precludes awarding damages for emotional distress in the absence of any physical injuries. Landrio v. Corley, 2009 WL 387123 (E.D. Ark., Feb. 13,
2009).
District of Columbia — Judge Richard W.
Roberts granted plaintiff’s motion to amend his
sexual orientation and sex discrimination complaint against his employer to add as individual
defendants various managerial employees.
Smith v. Caf‚ Asia, 2009 WL 426458 (Feb. 20,
2009). The employer had opposed the amendment, arguing it would be futile because only
the corporate employer, not individual actors,
could be held liable under the DC Human
Rights Act. However, Judge Roberts found that
some cases have found that individuals could
be deemed the ©employer” if, as the plaintiff
argued, they were “managers who perpetrated,
who witnessed and failed to stop, or to whom
[plaintiff] complained without success about,
the discriminatory acts.” Roberts found that
this was sufficient to overcome the futility argument. The employer also argued that allowing
the amendment at this late stage in the pre-trial
process was prejudicial to it, but Roberts noted
that the courts had not found that individuals
could be named as defendants in such a case
until several months after the original complaint was filed in the case, and that, as the defendant had removed the case from the District
trial court to the federal court, there would be
statute of limitations problems if he tried to file
a new complaint against the individual defendants in the District trial court. Roberts found
that plaintiff was acting in good faith in offering
the amendment. At the same time, however, he
denied a request by plaintiff to allow additional
depositions beyond those specified in an earlier
trial order, finding plaintiff had not explained
why he needed these extra depositions.
49
Indiana — In Gray v. Federal Express Corporation, 2009 WL 305521 (N.D.Ind., Feb. 7,
2009), a female employee who was dismissed
after receiving her third warning letter for disciplinary offenses filed a Title VII claim, alleging
that she was subjected to hostile environment
sexual harassment, sex discrimination, and unlawful retaliation. At the heart of her claim was
an allegation that her female supervisor sought
to initiate a lesbian relationship with her, that
her refusal led to harassment, and that the company’s discipline of her would not have been
imposed on similarly situated men. She also asserted that her complaints about harassment by
her supervisor led to retaliation against her. The
court found that her deposition testimony did
not support her allegations, that she had never
specifically brought to the company’s attention
her allegation concerning lesbian advances,
and that whatever “harassment” she experienced did not meet the “severe and pervasive”
requirements of Title VII case law.
Minnesota — In Child Evangelism Fellowship of Minnesota v. Elk River Area School District #728, 2009 WL 313493 (D. Minn., Feb. 6,
2009), what might be called a “culture wars”
case, U.S. District Judge Ann D. Montgomery
awarded a preliminary injunction to the plaintiff, which sponsors “Good News Clubs” (Bible
study clubs) as afterschool activities for elementary school students. Such clubs had been
meeting at schools in the defendant school district, and the plaintiff sought permission to participate in the district’s Open Houses, to post
notices about the clubs at the school, and to distribute literature to parents and students attending the open houses. The school district refused, stating that they were restricting these
events to school-related activities and organizations whose access was required under the
“No Child Left Behind Act,” whose provisions
were designed to guarantee access to schools
for organizations that discriminate against gay
people in their membership, principally the
Boy Scouts of America. (Congress believes it is
important that the Boy Scouts be allowed to
spread their anti-gay propaganda through the
public schools, under the rubric of “patriotism.”) The school district noted that religious
organizations were not included under the access provisions of the statute. Judge Montgomery found that the plaintiffs had shown that
their First Amendment rights were violated, as
they were being excluded from a limited public
forum based on the content of their message,
and that further exclusion pending a final judgment in the case would cause them irreparable
injury. In addition to awarding preliminary injunctive relief, the court denied the defendant’s
motion to dismiss.
New York — The American Lawyer reported
on Feb. 11 that attorney Julie Kamps had filed a
discrimination complaint against her former
employer, Fried Frank Harris Shriver & Jacob-
50
son, claiming she was denied partnership in the
firm due to her sexual orientation. Kamps alleged that there is an effective glass ceiling at
the firm for gays aspiring to partnership. Kamps
also filed a claim with the New York State Division of Human Rights. One wonders why she
filed with the EEOC, which does not have jurisdiction over claims of sexual orientation discrimination, and the news report said nothing
about allegations of discrimination on any
ground other than sexual orientation. Kamps
also made a retaliation claim, and perhaps that
is the basis for her federal jurisdiction, but it is
hard to know how to make out such a claim
when the underlying discrimination about
which she is complaining is not a violation of
federal law.
State Civil Litigation Notes
California — A jury in San Diego Superior
Court found on February 17 that four San Diego
firefighters who had been assigned against their
will to operate a fire department vehicle as part
of the city’s annual gay pride parade had been
subjected to sexual harassment and should receive damages of $34,300 to split among themselves. The plaintiffs claimed that during the
course of the parade they were subjected to
sexually-charged conduct and lewd comments
from spectators. Attorneys for the city announced that they would appeal the verdict.
The verdict came after a second trial, as the first
trial jury was unable to reach a verdict on the
sexual harassment claim. The city’s fire chief
apologized to the plaintiffs after the parade, and
changed departmental policy so that in future
parades only volunteers would participate on
behalf of the fire department. San Diego
Union-Tribune, Feb. 17.
New Jersey — In an unpublished order issued on February 13, Camden County Superior
Court Judge Deborah Silverman-Katz described a same-sex male couple as a “family
unit” in the course of deciding numerous issues
in connection with a custody and visitation dispute arising from the divorce action instituted
by the former wife of one of the men. Initials are
used here to protect the confidentiality of the
men and their child. The husband, E, had a
prior relationship with S, but married C, who
became pregnant by six weeks after the wedding. The spouses separated after six months of
marriage, the child, J, being born several
months later. E had returned to live with S in
New York. The divorce proceeding led to an initial ruling of joint custody with the ex-wife as
residential custodian and visitation for the exhusband, conditioned on his moving back in
proximity to C’s southern N.J. home with S. (According to C, E was not capable of dealing with
the child during visitation alone.) Complications ensued, and the case went through several
judges before Judge Silverman-Katz’s ruling,
March 2009
which incorporates by reference the N.J. Children’s Bill of Rights, interpolating an order that
neither party disparage the other or S in the
presence of the child, and a specific statement
that the court “recognizes” that the father and
his partner are “a family unit.” Still pending is
the father’s appeal of the refusal of a prior judge
in the case to award him temporary sole custody
pending a full hearing on the best interest of the
child. Attorney Lauren H. Kane represents the
father.
Pennsylvania — Mercer County Common
Pleas Judge Christopher J. St. John has ruled
that Lisa Lewis should be entitled to visitation
with the children she was raising with her
former same-sex partner, Jeanette Rowan. St.
John ordered one hour a week of supervised
visitation with the 7 year old child beginning in
March, to be expanded to two hours a week in
April. Over the past two years since the parents
split up, Lewis has had only a total of three
hours contact with the child. Lewis v. Rowan,
reported in The Sharon Herald, Feb. 24, 2009.
Texas — Dallas attorney Peter Schule filed a
divorce petition in Dallas County Family Court
on January 21 on behalf of a man who married
his same-sex partner in Massachusetts in 2006.
The couple moved to Texas eight months ago,
and decided to end their marriage. The case is
called In the Matter of Marriage of J.B. and
H.B. to preserve the confidentiality of the parties. The attorney general filed a motion to intervene on January 28, arguing that because
Texas did not recognize the marriage, the Family Court had no jurisdiction to entertain a petition for divorce. 24 Texas Lawyer No. 44 (Feb. 2,
2009). A.S.L.
Criminal Litigation Notes
California — In People v. Sevilla, 2009 WL
266271 (Cal. App., 2nd Dist., Feb. 5, 2009)
(not officially published), the court of appeal
affirmed a conviction of first degree murder and
personal use of a knife bearing a sentence of 26
years to life in prison for murdering a gay man.
The victim, Kenneth Kitching, who was HIV+,
hung out in a park near his home where younger
men played soccer and used drugs. He had a
reputation for providing crack to young men
who came to his apartment and allowed him to
perform oral sex on them. The evidence at trial
showed that the defendant was one such young
man. After a prolonged investigation that ran
several years after the murder, police secured a
confession from the defendant that he had
killed Kitching by tying him tightly in a chair,
stabbing him in his stomach, and then stuffing a
sock in his mouth and securing it with a piece of
cloth as a gag. Although the stab wound was potentially fatal, the coroner determined that
Kitching died from asphyxiation. The defendant slept in Kitching’s apartment overnight
and, determining that he was dead, stuffed his
Lesbian/Gay Law Notes
body into a closet and stole his DVD player and
films to sell for crack money. In his confession,
the defendant asserted that he determined to
kill Kitching when Kitching asked the defendant to perform anal sex on him, and an inner
voice compelled him to kill Kitching. The defendant was allegedly high on crack at the time.
Appealing his jury conviction and sentence,
defendant claimed the evidence did not support the first degree murder conviction and that
the jury was not properly instructed, both arguments rejected by the court of appeal.
Connecticut — The Appellate Court of Connecticut rejected a convicted defendant’s claim
that his counsel had been unduly restricted by
the trial court in questioning potential jurors
concerning their attitudes about homosexuality
in a case involving male-on-male sexual assault. State of Connecticut v. Thornton, 2009
WL 314232 (Conn. App., Feb. 17, 2009). According to the trial record, the victim arrived at
the New Haven train station late at night after
attending a play in New York City, and was
stranded without a ride home. The defendant, a
police officer, offered to drive him home, taking
a circuitous route and stopping to playfully
handcuff the victim and give him a pat-down
search, during which he fondled his genitals.
After being delivered home, the victim decided
he had been improperly assaulted and contacted the authorities. During voir dire, the
court permitted questioning about potential jurors’ attitudes concerning homosexuality, but
sustained the prosecution’s objection when defense counsel delved into attitudes about closet
cases and struggles about coming out of the
closet, deciding that the relationship to the case
was too attenuated to justify the questioning.
Rejecting defendant’s appeal of his conviction,
the Appellate Court found that defendant had
adequate opportunity to question jurors about
their attitudes towards homosexuality, and the
line of questioning that was cut off was not relevant to the prosecution, as no evidence was presented by the defendant, a heterosexually married man, about struggling with sexuality in the
closet.
Florida — In Duest v. State of Florida, 2009
WL 395789 (Feb. 19, 2009), the Florida Supreme Court unanimously upheld the conviction and death sentence for the murder of a gay
man by the defendant, who was shown to have
told somebody he was going to a gay bar to “roll
a fag”, was subsequently seen picking up the
victim in the bar and driving away with him,
and as to whom forensic evidence provided a
basis for the jury to conclude that he was guilty
of the vicious stabbing death of the victim.
Iowa — In State v. Miller, 2009 WL 249646
(Iowa App., Feb. 4, 2009) (unpublished disposition), the Iowa Court of Appeals upheld the
conviction for first degree murder of Eric Christopher Miller, who killed a gay man, Jamey
Brucker, with a shotgun blast to his head while
Lesbian/Gay Law Notes
both men were naked and Brucker, straddling Miller, was attempting to insert Miller’s
penis into his anus. This rather bizarre scene
came about, according to Miller, after he, a
straight man, met Brucker, a gay man, at an
adult bookstore and struck up an acquaintanceship. Miller claimed that Brucker, who
was suicidal, wanted Miller to kill him, and
hoped as his last act to perform oral sex on a
straight man. After an evening full of incident,
they ended up at Brucker’s apartment, where
Brucker’s attempts to perform oral sex were unsuccessful in arousing Miller, so Brucker straddled Miller and attempted to insert Miller’s penis. Miller, feeling this went beyond their
agreement, asked Brucker “Do you want to
die,” and when Brucker responded affirmatively, Miller reached for his shotgun and shot
Brucker in his head. Miller then got off the bed
and shot Brucker in the head a second time. On
appeal the court rejected Miller’s argument that
the verdict was tainted by the introduction of
evidence that he had lied on the disclosure form
he filled out when he bought the shotgun. The
court agreed that this evidence was irrelevant,
but found that in light of all the other evidence
in the record supporting the verdict, it was unlikely that this single piece of evidence tipped
the jury over to voting to convict. A.S.L.
Legislative Notes
Federal — On February 12, lead sponsors Rep.
Jerrold Nadler (D-N.Y.) and Senator Patrick
Leahy (D-Vt) introduced the Uniting American
Families Act in Congress. The bill would add
the term “permanent partner” to sections of the
Immigration and Naturalization Act that apply
to legally married couples, describing a permanent partner as an adult who is in a committed,
intimate relationship with another adult in
“which both parties intend a lifelong commitment.” In a press release announcing introduction of the bill, Rep. Nadler’s office stated that
at least nineteen countries allow residents to
sponsor same-sex permanent partners for legal
immigration purposes, including most of the
United States’ major diplomatic partners and
allies, making the U.S. a total outlier on this issue.
Colorado — A Colorado House committee
voted on Feb. 16 to approve a bill that would extend legal rights of same-sex partners bringing
the state closer to a full-blown civil union
status. The measure is not restricted to samesex partners, instead focusing on establishing
“designated beneficiary agreements” that
could be used by both same-sex and differentsex couples to establish various rights and responsibilities. Denver Post, Feb. 17. On February 20, the full House gave tentative approval to
the bill. Denver Rocky Mountain News, Feb. 21.
On February 24, the Senate gave its final approval to the measure, on a 22–12 vote that in-
March 2009
cluded two Republicans voting with Democrats
in the majority. Denver Post, Feb. 24. Governor
Bill Ritter, a Democrat, is expected to sign the
measure. The main point of debate has been
whether the state’s anti-gay marriage amendment renders the partner benefits measure unconstitutional, a question that will undoubtedly
be tested in the courts at some point.
Colorado — Aurora — The Aurora City
Council voted 7–3 on February 23 to extend
benefits eligibility to unmarried same-sex and
different-sex partners of city employees. A notarized affidavit of domestic partnership reciting at least six months of cohabitation is a prerequisite to qualify for the benefits. The Denver
Post, reporting on the vote, stated that sixteen
states plus D.C. and 362 cities and counties (including 13 in Colorado) provide benefits to
same-sex partners.
Hawaii — The state’s House of Representatives approved a bill on Feb. 12 by a vote of
33–17 to make civil unions available to samesex partners. The bill would extend to same-sex
couples in civil unions the same benefits, protections and responsibilities under state law
that are enjoyed by married couples, and the
state would recognize civil unions, domestic
partnerships and same-sex marriages performed in other jurisdictions, according to a
Feb. 13 report in the Honolulu Advertiser. The
bill was then sent to the Senate Judiciary committee, which was reportedly deadlocked on the
bill.
Kentucky — The state’s press has been full of
arguments about a measure pending in the legislature, S.B. 68, which would ban adoptions by
anyone who is “cohabiting with a sexual partner outside of a marriage that is legally valid in
Kentucky.” The measure is clearly inspired by
the ballot initiative approved by voters in Arkansas last year, and is part of the anti-gay
agenda pursued by national so-called “family
values” organizations. Of course, these organizations are not lobbying for increased appropriations to pay the extra expenses that will be
incurred by the state in caring for unadopted
children if the measure passes. At the same
time, bills are pending in the legislature to ban
discrimination based on sexual orientation or
gender identity. They are given less chance of
passage by observers than the misguided antiadoption bill. Lexington Herald-Leader, Feb.
25.
New Mexico — After a dramatic turnabout in
one legislator’s position, the new Mexico Senate Judiciary Committee agreed to send a proposed domestic partnership bill to the floor of
the Senate without a committee recommendation, but the Senate rejected the measure,
which was supported by Governor Bill Richardson, after an intense floor debate. Associated
Press, February 27.
North Carolina — Republican legislators
have filed bills seeking to place an anti-gay
51
constitutional amendment on the ballot, but
both houses of the legislature are now controlled by Democrat majorities, whose leaders
are disposed against allowing the measures to
come to a vote. Greensboro News & Record, Feb.
25.
North Dakota — The state senate voted
27–19 on Feb. 18 to amend the state’s Human
Rights Act to add “sexual orientation” as a forbidden ground for discrimination in housing.
Bismarck Tribune, Feb. 19.
Utah — After making anti-gay comments in
an interview, State Representative Chris Buttars (R.-West Jordan) was removed by the Senate President from his positions as Chair and
member of the Judiciary Committee and Chair
of the Judicial Confirmation Committee. The
Judiciary Committee which would have jurisdiction over all proposed gay rights legislation.
Buttars has not resigned from the legislature
and is unrepentant about his statements. Buttars had asserted that homosexuals were the
greatest threat to America, among other things.
Salt Lake Tribune, February 20.
Utah — The Common Ground initiative, a
package of five bills concerned with legal rights
and protections for gay citizens, failed to move
out of committee in the Utah legislature, although Governor Jon Huntsman, Jr., a Republican, endorsed several of the measures, most notably one that would have established civil
unions. There was speculation that Huntsman,
who is term-limited, was positioning himself as
a moderate for a potential career in national
politics.
Utah — Salt Lake County — The Salt Lake
County Council voted 6–3 on Feb. 17 to approve an ordinance that will extend eligibility
for health insurance, dental coverage, extended
funeral leave, life insurance and various other
benefits to unmarried partners or other “adult
designees” of county employees. The measure
requires one more formal vote before it is enacted into law, but that is considered largely
ceremonial. The estimated expense of implementing the measure, which is similar to one
adopted in Salt Lake City in 2006, is about
$275,000 a year. The measure drew the votes of
all five Democrats on the Council and one Republican, Max Burdick, who said, according to
a press report, that the Council’s decision
should not be based on personal judgments
about race, religion, or sexual orientation. Salt
Lake Tribune, Feb. 18. A.S.L.
Law & Society Notes
Federal — Secretary of State Hilary Clinton has
responded to requests for change in the State
Department’s policies towards employees in
same-sex relationships by indicating that her
staff is studying what can be done through internal policy-making by the Secretary and what
requires congressional approval, prior to im-
52
plementing anything. Clinton indicated her
personal agreement that same-sex partners of
state department employees should be treated
the same as spouses of employees. Such treatment is particularly important for employees
with overseas postings, where spouses are
given substantial training and support by the
Department, but same-sex partners are usually
ignored. Washington Blade, Feb. 16.
Corporate Policy — According to a press release from the office of N.Y.C. Comptroller Bill
Thompson, the New York City Pension Funds,
whose administration Thompson directs, have
succeeded in getting six more corporate employers in whom the Pension Funds have invested to agree to adopt policies banning discrimination based on sexual orientation and/or
gender identity. Thompson’s office is executing
a campaign to persuade all corporations in
which the Funds hold stock to adopt such a policy.
California — Officials of the Bear Valley
Unified School District made a written apology
to a 16–year-old sophomore who had been required by the high school principal to remove a
t-shirt with the slogan “Prop. 8 Equals Hate.”
Mariah Jimenez went to the ACLU, which protested on her behalf, resulting in District Officials overruling building staff and resolving to
apologize to the student. Wrote Carole Ferraud,
District Superintendent, in the apology letter:
“The fact that you were put in a position to have
to make a choice between removing your shirt
or remaining in the administration office was,
in fact, a violation of your freedom of speech.”
Under the terms of an agreement struck between the District and the ACLU, the District
will update its speech and dress code to recognize students’ First Amendment rights, and
there will be a forum to inform teachers and students about free speech rights and the District’s
non-discrimination policy. San Bernardino
County Sun, Feb. 21.
Florida — The board of governors of the
Florida Bar voted to allow the association’s
family law section to file an amicus brief with
the 3rd District Court of Appeal supporting a
trial court decision by Miami-Dade Circuit
Judge Cindy Lederman to allow two gay men to
adopt a child for whom they were serving as foster parents, finding no rational basis to support
the state’s categorical statutory exclusion of
“homosexuals” from eligibility to be adoptive
parents. When the news broke, some media reported that the Florida Bar had changed its position and was now advocating for gay adoptions, which drew a quick corrective comment
from bar leaders, insisting that all they were doing was allowing their family law section to file
an amicus brief in a particular case, and that
the Association had not taken a position on legislation to repeal the adoption ban. Broward
Daily Business Review, Feb. 3 and Feb. 9, 2009.
After all, bar leaders must be cautious and
March 2009
avoid taking a position to which many of their
more conservative members will object. Leaders are not supposed to “lead,” after all... Florida Bar News, Feb. 15.
Florida — The openly gay mayor of North
Miami, Ken Burns, who is barred from running
for re-election by term limits, has announced
that he will seek the Democratic nomination for
Untied States Senator in 2010. If he is nominated, Burns would be only the second openly
gay person to receive a major party nomination
for the U.S. Senate, the first being Ed Flanagan
in Vermont, who lost a race in 2000 to moderate
Republican Jim Jeffords. Jeffords subsequently
left the Republican party and moved over to
vote with the Democrats in the Senate, allowing
them to organize the chamber for most of the
first two years of the first administration of
George W. Bush.
New York — Community protests and inquiries from elected officials have led the New York
City Police Department to begin an internal investigation into charges that undercover vice
cops have been entrapping gay men into false
arrests for prostitution in adult businesses, as
part of a strategy to have the businesses closed
down as prostitution venues. After several
months of reporting in Gay City News and a
town hall meeting at the LGBT Community
Center, the New York Times finally deigned to
report on the story (February 15, 2009), after
which a police investigation was inevitable.
Mayor Michael Bloomberg was unresponsive to
press questioning about the problem.
Texas, Dallas — Dallas County Sheriff Lupe
Valdez, an openly-gay elected public official,
has added sexual orientation and gender identity to the sheriff’s department policies forbidding harassment or discrimination. These
changes to the department’s policy and procedures manual took effect in January. Dallas
Voice, Feb. 12.
Wisconsin — Governor Jim Doyle has proposed in his annual budget to establish a domestic partnership registry and afford a few
specific rights to registered partners. He rejected claims that this would violate the state’s
anti-gay marriage amendment, which limits
marriage to the union of one man and one
woman and bans “any legal status identical or
substantially similar to marriage.” Doyle points
out that the short list of specific rights for domestic partners could hardly be said to create a
legal status substantially similar to marriage.
Deseret Morning News, Feb. 23. A.S.L.
International Notes
Australia — A lesbian couple who sought in vitro fertilization from a doctor in order to have
one child sued when one of them gave birth to
twins won a ruling from the Australian Capital
Territory Court of appeal on February 12, overturning a trial court ruling that had denied relief
Lesbian/Gay Law Notes
against the doctor. According to a report in the
Australian (Feb. 13), the court awarded damages of $317,000 to the couple, whose names
were not released. The trial judge had found
that the doctor did not breach his duty of care in
a case that may have involved mistaken communication. It seems that there was a written
instruction to the clinic to implant two embryos,
but that in the operating theater as she awaited
the implantation procedure, the birth mother
changed her mind and asked the doctor to implant only one, but he went ahead and followed
the written direction instead. The trial judge
found that the woman had failed to tell the
clinic staff that she had changed her mind and
thus had contributed to the problem. The compensation is awarded to defray some of the cost
of raising the second child.
Bolivia — The new constitution, approved
by 61 percent of the voters during January, took
effect on February 7. It bans discrimination
based on sexual orientation and gender identity, among a long list of forbidden grounds for
discrimination by the state. However, the constitution also embraces a definition of marriage
as being between a man and a woman. Wocker
International News, #773, Feb. 16.
France — The Daily Telegraph (U.K., Feb.
16) reported that the Civil Solidarity Pact
(PACS) created by the French government to
provide a legal status for unmarried couples
(including same-sex couples) have become increasingly popular among heterosexual couples, who in the most recent annual statistics
comprised 90 percent of those registering such
relationships. The reason cited for this growing
preference for PACS over legal marriage is the
ease of dissolution; rather than the possibility
of an expensive divorce proceeding, PACS partners can terminate their relationship by a letter
from either partner to the other, releasing any
property or money claims. The newspaper reported that the annual rate of new PACS formation is around 150,000 couples, of whom
135,000 are different-sex couples.
Israel — The recent parliamentary election
brought into office Nitzan Horovitz, an openlygay candidate on the Meretz ticket. (Meretz is a
small left-wing civil rights party.) Horowitz
promptly signaled his intention to introduce a
bill in the Knesset to allow for same-sex marriages or civil unions between two partners regardless of their religion, ethnic background or
gender. This would counter the bill being
championed by Avigdor Lieberman, the leader
of Yisrael Beitenu, that intends to establish
civil marriage in Israel for the first time, but
only for different sex couples. Under current
law, marriage is the province of religious
authorities. Of course, in a country where the
civil authorities have ceded control of marriage
to religious authorities, there is usually a robust
development of legal rights for unmarried couples, and that has been the case in Israel, where
Lesbian/Gay Law Notes
same-sex couples have benefited from some of
those developments. Since the parties on the
right control a majority of the seats in the new
Knesset,the chance for Horovitz’s bill to advance are slight, but he hopes that the first-time
introduction of such a measure will stimulate
debate.
Jamaica — In a startling article published
on Feb. 24 titled “Attacks Show Easygoing Jamaica Is Dire Place for Gays,” the New York
Time reported on the intense culturally hostility
towards gay people in Jamaica, pointing out
that this country is one of the few in the Caribbean region that has made no attempt to lure
gay tourists. (Indeed, to the contrary, there have
in the past been news reports about cruise ships
carrying gay tours being turned away from Jamaica.) Although the police claim that they are
not hostile to gays, gay people interviewed by
the Times insist that the police look the other
way at anti-gay violence, and any gay life on the
island is conducted very much underground. At
the same time, the lack of an official government policy of persecuting gay people as such
has made it difficult for refugees from Jamaica
to gain asylum or withholding of departure in
the United States, as evidence by a range of inconsistent Immigration Judge and Board of Immigration Appeals rulings. Perhaps the Times
article will help to spur State Department officials to do the kind of realistic evaluation in a
country report that would be helpful to refugees
seeking asylum.
Portugal — Same-sex marriage is on the political agenda as Portugal prepares for parliamentary elections this year. Recognition for
same-sex civil unions has existed since 2001,
and the Portuguese Constitution has prohibited
sexual orientation discrimination since 2004,
according to an article by Paulo Corte Real, a
Portuguese associate member of the International Lesbian and Gay Association, distributed in that organization’s email newsletter.
Prime Minister Jose Socrates, campaigning for
re-election at the head of the Socialist Party, has
made marriage equality part of the campaign,
calling for “the fight against all types of discrimination and the removal, in the coming
term, of legal barriers to same-sex marriage.”
However, the party has not yet gotten to the
point of supporting adoption by same-sex couples. The general election will be held in the
fall.
United Kingdom — British immigration
authorities refused to allow Rev. Fred Phelps
and Shirley Phelps-Roper of the Kansas-based
Westboro Baptist Church to enter the country.
The Phelps had traveled to England with the intent to picket a production of The Laramie Project at Queen Mary’s College in Hampshire.
Evening Standard, Feb. 19, 2009.
United Kingdom — An Employment Tribunal awarded a gay man who used to work at
Heathrow Airport damages of 62,500 pounds
March 2009
on his complaint about hostile environment
sexual harassment. The complaint mainly involved the actions of a female co-worker who
came on to him, then subjected him to verbal
and physical harassment when he refused to respond to her sexual advances. According to the
hearing record, the woman put the plaintiff’s
hand on her breasts and taunted him for being
gay, saying he did not know how to handle a
woman in bed. Daily Star, Feb. 20.
United Kingdom — The Home Office has
announced that Pegah Emambakhsh, a lesbian
from Iran who fled the country after her girlfriend was arrested and sentenced to death, will
be granted asylum in the U.K. She first arrived
in the U.K. in 2005 and applied for asylum,
which was denied, but human rights forces
championed her case and the Home Secretary
agreed to reconsider her application. Although
gay rights advocates have asked the government to consider a general moratorium on returning gay and lesbian refugees to Iran in light
of the dangerous situation for gay people in that
country, the Home Office made clear in announcing this grant of asylum that it would continue to consider such applications on a case by
case basis. Independent, Feb. 16.
United Kingdom — A threatened suit in the
Court of Sessions in Edinburgh persuaded the
National Health Service Trust in Scotland to
back down from its refusal to fund fertility treatment for a lesbian couples seeking to have children. According to a February 27 report in the
Daily Telegraph, Caroline Harris and Julie
McMullen claimed they were unlawful discriminated against when NHS refused to cover
the treatment on the ground that its “assisted
conception service” was intended for couples
who had been trying to conceive “in the normal
way” without success, and that the two women
did not fit its definition of an “infertile couple.”
They had applied to the NHS for fertility treatment when their general practitioner advised
them that they would have to pay for private
treatment. In attempting to justify their position, NHS cited a waiting list of 460 couples
seeking treatment, with an average wait of almost two years. But after an initial hearing before the court, the decision-making board released the following statement: “These two
individuals are biologically incapable of conceiving and the board, therefore, initially took
the view that the couple did not meet the necessary criteria to receive NHS-funded treatment.
The Board has, however, reconsidered its position in light of other regulations, and has now
decided to offer treatment to this couple.” The
“other regulations” undoubted refers to recently enacted laws in the U.K. banning sexual
orientation discrimination. A.S.L.
Professional Notes
53
The LGBT Law Foundation of Greater New
York has announced the award recipients for
the LeGaL Annual Dinner, which will be held
on March 19. Roberta A. Kaplan, a litigation
partner at Paul, Weiss, Rifkind, Wharton &
Garrison LLP, who argued the Hernandex
same-sex marriage case in the New York Court
of Appeals, and Victoria Neilson, Legal Director of Immigration Equality, will receive the
2009 Community Vision Awards. More information about the event can be found on the LeGaL website.
Equality Advocates, an LGBT public interest law firm in Philadelphia, announced on
January 30 that its new executive director will
be Lynn Zeitlin. Ms. Zeitlin is an experienced
attorney who has been a board and executive
committee member at Equality Advocates. She
is a 1978 graduate of Villanova Law School and
has devoted substantial time during her legal
career to volunteer work for a variety of nonprofit, public interest organizations, including
the Equality Forum, the Philadelphia Bar Association, the Anti-Defamation League, and the
Jewish Federation of Greater Philadelphia. She
began working as executive director on February 9.
Various news sources reported that Leslie
Hagen, an attorney whose position at the Justice Department had been terminated during
the Bush Administration by Monica Goodling,
the senior counselor to Attorney General Alberto Gonzales, due to rumors that Hagen was a
lesbian, has been rehired by the Justice Department for the job from which she was terminated. According to news reports, the Department had posted Hagen’s old job as vacant,
considered applications from around the country, and ultimately offered the job to Hagen, who
accepted.
The Houston Chronicle noted the passing of
John Paul Barnrich, described as the “first
openly gay man to become a city court judge in
Texas,” who died from diabetes-related illness
at age 63 on February 2. Barnrich was first appointed to the Houston Municipal Court by
then-Mayor Lee Brown in 1999, and served until 2007, when ill-health led him to resign from
full-time work, but he did continue as a parttime hearing officer until his death. He was a
former board chair of the Houston AIDS Foundation, Inc. Barnrich was famous for his sense
of humor, according to the February 3 obituary
article. “When questioned during a City Council hearing to confirm his appointment about
how a gay judge would differ from a heterosexual judge, he responded that he would upgrade
the courtroom’s sound system in order to play
show tunes. On the occasion of his pet iguana’s
fifth birthday, he gave the reptile a party featuring a mariachi band,” according to the recollections of a longtime friend. He was a graduate
54
of the South Texas College of Law and earned
his undergraduate degree from Michigan State
University. A.S.L.
AIDS & RELATED
LEGAL NOTES
Obama Administration Designates Gay Scholar
to Head U.S. AIDS Policy Office
President Barack Obama has designated Jeffrey S. Crowley, a Senior Research Scholar at
the Healthy Policy Institute of Georgetown University, to be the new director of the Office of
National AIDS Policy. Crowley also holds an
appointment at Georgetown University Law
Center, as a Senior Scholar at the O’Neill Institution for National and Global Health Law. His
work has focused heavily on the Medicaid and
Medicare programs. He previously served as
Deputy Executive Director for Programs at the
National Association of People with AIDS, and
is well known to leaders in the AIDS activist
community. A.S.L.
7th Circuit Persist in Erroneous Characterization of
HIV/AIDS Case
The 7th Circuit voted 6–4 to deny en banc review in Equal Employment Opportunity Commission v. Lee’s Log Cabin Restaurant, Inc., 546
F.3d 438 (7th Cir. 2008), rehearing en banc denied, 2009 WL 222960 (Feb. 2, 2009), in
which a panel affirmed an egregiously incorrect
decision by a trial judge who failed to recognize
that HIV infection and AIDS are not distinctly
different entities, such that referring to disabling aspects of the plaintiff’s AIDS condition
is not a change in the theory of a case that was
filed as an HIV discrimination claim. The denial of en banc review drew a spirited and
lengthy dissent from Circuit Judge Ann Claire
Williams, joined by Judges Diane Wood, Terence T. Evans, and Ilana Diamond Rovner,
pointing out in detail the fallacy of the panel’s
ruling. The facts in this case predate the corrective amendments to the Americans with Disabilities Act that were enacted last summer, so
one hopes that the decision’s potential baleful
effect in the 7th Circuit will be short-lived.
A.S.L.
AIDS Litigation Notes
California — U.S. Magistrate Judge Edmund F.
Brennan issued an opinion recommending that
an HIV+ state prison inmate whose medication was suspended, allegedly for economic
rather than medical reasons, may maintain a
civil rights action for deliberate indifference to
serious medical need against the supervisor of
the doctor who terminated the medication. Jaspar v. Khoury, 2009 WL 213106 (E.D.Cal., Jan.
March 2009
29, 2009). Plaintiff was transferred from California State Prison-Corcoran to the California
Medical Facility. While at Corcoran, he had
been receiving testosterone treatments for
metabolic dysfunction symptoms. When he was
transferred, the doctor at the new facility discontinued this treatment. Plaintiff alleges he
was instructed to do so by his supervisor because of the expense of the treatment. Plaintiff
sued various officials of the prison, alleging a
conspiracy to deprive him of his meds and asserting also a state emotional distress claim.
The court found that as to anyone other than the
doctor’s immediate supervisor, the claim would
rest on the concept of respondeat superior,
which is not applicable to prison officials in a
42 USC 1983 suit. Furthermore, the court found
that the state law claim was barred for failure to
exhaust remedies, as the plaintiff’s attempt to
invoke internal remedies was untimely. However, the court concluded that if the doctor’s supervisor had ordered him to suspend the treatment for financial reasons, there is a possibility
of an 8th Amendment violation. “While prison
authorities have wide discretion’ in the medical
treatment afforded prisoners,” wrote Brennan,
“failure to provide treatment because of a tight
budget constitutes a cognizable claim under
section 1983. Jones v. Johnson, 781 F.2d 769,
771–72 (9th Cir. 1986) (holding that pretrial
detainee stated a cause of action for deliberate
indifference where the record showed no explanation other than the budget concerns for denying medical treatment). Therefore, defendants’
motion to dismiss plaintiff’s deliberate indifference claim against defendant Bick must be denied.”
Florida — A person living with AIDS who
was denied any retroviral treatment during
three months of incarceration in the Broward
County Jail is entitled to a trial of his 8th and
14th Amendment claims against the Broward
County Sheriff and Armor Correctional Health
Services, Inc., the subcontractor that provides
health care in the jail, ruled U.S. District Judge
William P. Dimitrouleas, denying defendants’
motions for summary judgment in Sauve v.
Lamberti, 2008 WL 5605350 (S.D. Fla., Dec.
1, 2008). For some reason, this case did not
show up in the Westlaw database until February
2009. Kevin Sauve was diagnosed with fullblown AIDS in 1997 or 1998. He was arrested
and placed in Broward County Jail on May 1,
2007. At that time, he had been on a retroviral
regimen since the beginning of the year, a fact
which was confirmed when jail officials contacted a friend of Sauve who read them the labels on Sauve’s prescriptions. Yet he was provided no medication throughout three months
of incarceration, and mid-way through his incarceration, the doctor who made treatment decisions for inmates specifically confirmed the
decision to deny him medication. Sauve filed
numerous complaints about not receiving
Lesbian/Gay Law Notes
medication, and claims in this lawsuit that he
suffered irreparable injury to his health as a result of the enforced period without medication.
The defendants claimed that he was a drug
abuser with a history of non-compliance with a
medical regimen, and that they made a reasoned judgment to deny him medication to
avoid the development of drug resistance
through inconsistent use. They were seeking, of
course, to create a defense of a difference of
medical opinion, which would vitiate his constitutional claim. But the court was not buying
this, especially in light of evidence introduced
by the plaintiff tending to support the conclusion that the Broward County Sheriff’s department may have been pursuing a policy of denying expensive HIV treatment to inmates of the
jail as a budgetary measure. Judge Dimitrouleas found that there were issues of fact to
be determined at trial on both the wrongful deprivation of treatment claim and the policy claim
(that would be a prerequisite to finding the
Sheriff liable as well as the health care contractor). Dimitrouleas noted that the sheriff had a
non-delegable duty under the constitution to
provide health care to inmates, and could not
pass off liability to the contractor if the denial of
meds was due to a policy of his office rather
than a case-specific medical judgment.
Illinois — A mix-up of medications, resulting in an HIV+ inmate being given pills intended for his neighbor, did not rise to the level
of an 8th Amendment violation, according to
U.S. District Judge Gilbert, when it was quickly
corrected on being discovered. Neither was
there an 8th Amendment violation when the inmate did not get the specific pain medication he
wanted, and was not given as frequent doctor
appointments as he thought were needed for his
condition. And, concluded the court, his privacy rights were not violated when a prison employee allegedly called out to him “here is your
AIDS/HIV medication” in “the gallery” without proof that anyone other than the plaintiff
heard her. Munson v. Feinerman, 2009 WL
30347 (S.D.Ill., Feb. 6, 2009).
Kansas — A criminal trial jury acquitted an
HIV+ man on charges of exposing another person to HIV, according to a report in the Hutchinson News (Feb. 12). The mother of an 18 year
old learning-disabled boy opened a bathroom
door to discover the boy wearing only a towel
and 43–year-old Harlin E. Bailey, Jr., in a compromising position. The youth told his mother
and police that Bailey had performed oral sex
on him on various occasions. There is no indication that Bailey ever asked the boy to perform
oral sex on him. No condoms were used. Bailey
claimed he told the boy that he, Bailey, was HIV
positive. Bailey believed that he would not expose the boy to HIV by performing oral sex on
him. There is no indication that the boy has become infected or traumatized as a result of the
experience. The prosecutor asserted that mere
Lesbian/Gay Law Notes
exposure should be sufficient for conviction,
but evidently the jury disagreed, finding no intent to expose and no harm done, apparently. A
first attempt to try Bailey had misfired when so
many members of the jury pool admitted antigay bias that a full jury could not be empanelled.
Michigan — In Moore v. Prevo, 2009 WL
278969 (W.D.Mich., Feb. 5, 2009), U.S. District Judge Janet T. Neff accepted a magistrate
judge’s recommendation to dismiss a complaint by an HIV+ prison inmate concerning
an alleged violation of his constitutional right to
medical privacy. Judge Neff observed that neither Supreme Court nor 6th Circuit precedents
would support a claim that an inmate’s privacy
rights were violated by the disclosure of his
HIV+ status to a corrections officer. Judge Neff
also found that some of the arguments the plaintiff tried to raise in objecting to the magistrate’s
recommendation and report had not been presented to the magistrate, and thus were out of
bounds.
Missouri — In State of Missouri v. Sykes,
2009 WL 306467 (Mo. Ct. App., W.D., Feb. 10,
2009), the court rejected an appeal by a man of
his conviction for recklessly creating the risk of
infecting another with HIV. The court put its
reasons into a memorandum which was released only to the parties, so the written opinion
provides no information apart from the fact of
denial of the appeal.
New Jersey — Conspiracy theorist strikes
out! In Okocha v. Laboratory Corporation of
America, 2009 WL 449148 (3rd Cir., Feb. 24,
2009) (not officially published), the allegedly
HIV+ plaintiff claimed that various defendants colluded with the FBI to inject him with
HIV and then covered up by falsifying subsequent HIV test results, negligently inflicting
emotional distress on the plaintiff. The district
court granted the defendants’ motion for summary judgment, and was affirmed, per curiam,
by the court of appeals. “A party attempting to
survive summary judgment must present more
than just bare assertions, conclusory allegations or suspicions to show the existence of a
genuine issue,’” wrote the court, citing Podobnik v. U.S. Postal Service, 409 F.3d 584, 594
(3rd Cir. 2005). “Accepting as true that Okocha
is currently HIV-positive, he nonetheless has
failed to show the existence of a genuine issue
of material fact with regard to Appellee’s alleged infection of him with the retrovirus. Likewise, Okocha has also failed to offer anything
beyond pure speculation to show that Appellees falsified any of his HIV test results.”
New Mexico — The U.S. Court of Appeals for
the 10th Circuit approved a top-of-theguidelines-range sentence of 96 months in
prison for an HIV+ man who pled guilty to unauthorized re-entry into the U.S. as a previously
deported alien. United States v. NavarreteMedina, 2009 WL 313337 (Feb. 10, 2009).
March 2009
The defendant’s argument on appeal was that
his motivation for illegal re-entry was to seek
necessary medications for his HIV infection.
The court found a substantial body of 10th Circuit precedent rejecting the contention that the
motivation for an illegal entry was relevant to
the issue of sentencing, especially in light of the
substantial criminal record that had led to the
defendant’s repeated deportations and past illegal re-entries. The trial court had described
his criminal record as “off the charts,” but Circuit Judge McKay does not provide chapter and
verse, merely referring to “numerous theftrelated offenses.” A.S.L.
Social Security Disability Cases
Alaska — In a case where ALJs had reached
conflicting decisions about whether the HIV+
plaintiff was disabled, U.S. District Judge John
W. Sedwick found that the evidence supported
the decision of the second ALJ, which had denied benefits on the ground that the plaintiff’s
HIV-related depression was not sufficiently severe to render him unable to work. Grow v. Astrue, 2009 WL 275771 (D. Alaska, Feb. 5,
2009).
Indiana — Hill v. Astrue, 2009 WL 426048
(S.D.Ind., Feb. 20, 2009), is a fairly routine decision sustaining the denial of disability benefits to an HIV+ woman, as to whom the ALJ had
determined that her residual capacity was sufficient to do simple, repetitive tasks of a sedentary nature, and thus that she as employable
and not qualified for benefits. District Judge
David F. Hamilton found that the administrative record provided support for the ALJ’s decision, and rejected the plaintiff’s claim that the
ALJ had ignored various of her contentions
about the disabling psychological effects of
HIV infection.
Louisiana — U.S. Magistrate Mark L.
Hornsby found that ALJ Charles Lindsay had
erred in denying disability benefits to an HIV+
applicant without referring to or discussing the
specific listing on HIV infection and the evidence presented by the applicant to support his
disability claim under that category. Williams v.
U.S. Commissioner Social Security Administration, 2009 WL 304336 (W.D.La., Feb. 5, 2009).
“There was a reference to Listing 14.00 (immune system) in the written decision in this
case, but there was no reference to or discussion of Listing 14.08 (HIV infection),” observed Hornsby. That listing has several subsections with very specific requirements, and
Plaintiff has urged the application of various
subsections in arguments to the agency and to
the court… Plaintiff has made colorable,
good-faith arguments, supported by citation to
record evidence, that aspects of the listing are
applicable. The Commissioner offers a general
argument that Plaintiff does not meet all the
necessary criteria’ but does not point out any
55
particular elements that are foreclosed by the
evidence. The lack of discussion of the listing
that specifically applies to HIV infection was
not harmless in this case. A remand is appropriate so that the agency may gather any additional
medical evidence needed and decade, in the
first instance, the application of the listing.”
Magistrate Hornsby reversed the Commissioner’s decision and remanded, pointing out that
the plaintiff and the agency could use the remand to “further explore the issues addressed
herein or any other relevant matters.”
Michigan — In Smoot v. Commissioner of Social Security, 2009 WL 230219 (E.D. Mich.,
Jan. 30, 2009), U.S. District Judge Marianne O.
Battani adopted a recommendation by Magistrate Judge Michael Hluchaniuk that an HIVrelated disability case be remanded for reconsideration of the Commisioner’s denial of benefits, due to various deficiencies in the Administrative Law Judge’s decision. The case came
down to the ALJ’s credibility determinations
and decision to give little weight to the opinions
of the petitioner’s doctor, who believed that the
petitioner was not capable of holding down a
job due more to his mental than his physical
condition. In particular, wrote Magistrate Hluchaniuk, “the undersigned concludes that the
ALJ failed to properly evaluate the treating
physician opinion of Dr. Patel. The ALJ failed to
give sufficient reasons for discounting the opinions of Dr. Patel, in favor of an outdated report
from the state agency physician. The ALJ also
failed to conduct a sufficient investigation into
the basis of Dr. Patel’s opinion regarding plaintiff’s mental limitations.” Further along in the
opinion, the Magistrate wrote, “the undersigned suggests that the ALJ’s failure to consider the nature and degree of plaintiff’s mental
limitations allows for the possibility that the residual functional capacity analysis does not
fully account for his deficiencies.… Given this
recommendation, the undersigned also suggests that the ALJ reassess his credibility determinations as it relates to plaintiff’s mental limitations. The record basis for the ALJ to
conclude that plaintiff’s mental limitations, as
set forth in his testimony, are not credible, are
less clear than the basis for finding that his
physical limitations are not entirely credible.… As set forth above, the undersigned suggests that the ALJ erred by failing to provide
sufficient reasons for rejecting Dr. Patel’s opinions and also erred by failing to sufficiently investigate Dr. Patel’s opinions. Based on these
judgments, the undersigned cannot conclude
that the ALJ’s credibility determination as to
plaintiff’s mental limitation is grounded in substantial evidence, particularly where the medical evidence relied on for this credibility determination (Dr. Tripp’s January, 2005 report and
the Eastwood treatment notes from 2004) are
outdated.”
56
Missouri — In Evans-Jones v. Astrue, 2009
WL 465896 (W.D. Mo., Feb. 25, 2009), U.S.
Chief Magistrate James C. England found that
the medical evidence did not support the plaintiff’s allegations of physical disability stemming from her HIV-infection. Indeed, the judge
found that the plaintiff’s infection was being
successfully controlled through medication
and she had never been disabled, within the
meaning of the statute, at any time after she had
ceased working.
New Jersey — In Gonzalez v. Astrue, 2009
WL 275858 (D.N.J., Feb. 5, 2009), U.S. District
Judge Hochberg sustained an administrative
determination that the HIV+ plaintiff was not
disabled and thus properly denied Social Security Disability benefits. The evidence showed
that she was being successfully treated for her
HIV infection and her CD4 cells had risen to a
healthy level. Although she suffered HIV-
March 2009
related depression, a series of examinations by
mental health professionals had produced consistent reports that she was capable of working.
In particular, the ALJ had determined that she
was capable of doing paid baby-sitting work, a
kind of work she had performed in the past. The
court found that these conclusions were supported by the record.
New York — Although U.S. District Judge
Thomas P. Griesa (S.D.N.Y.), found that a decision by Administrative Law Judge Kenneth G.
Levin was “thorough and well-reasoned” in rejecting an HIV+ plaintiff’s claim for disability
benefits, “as far as the record before him went,”
the court remanded the case of Maybank v.
Barnhart, 2009 WL 331245 (Feb. 11, 2009),
on the ground that two doctors whose evidence
may have been relevant had not presented evidence to the ALJ. Judge Griesa noted 2nd Circuit precedent stating that “where the adminis-
Lesbian/Gay Law Notes
trative record contains gaps, remand to the
Commissioner for further development of the
evidence is appropriate,” and instructed that
on remand reports should be sought from the
two doctors “or there should be specific explanation as to why such reports would not be
available or be relevant.”
Washington — In Williams v. Astrue, 2009
WL 261992 (E.D.Wash., Feb. 4, 2009), Magistrate James P. Hutton sustained a denial of disability benefits to an HIV+ man who was adjudged by the ALJ to lack credibility, in that his
testimony about his physical and mental impairments was in conflict with his medical records. Magistrate Hutton found that determining
credibility was within the province of the ALJ,
and that the disparities between the plaintiff’s
testimony and the medical records were sufficient to sustain that credibility determination.
The Magistrate found the ALJ’s decision to be
“free of legal error and supported by substantial evidence.” A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
University of Arkansas Law Review Symposium
The University of Arkansas at Little Rock Law
Review is presenting a full-day symposium on
Friday, March 13, titled “Lawyering for Social
Justice: Exploring the Roles of Immigration
and GLBT Cause Lawyers.” The program is being held in the Friday Courtroom at the Bowen
School of Law from 8:30 am to 4:30 pm. It is
free and open to the public. Registration and
contract information are available at
www.law.ualr/publications/lawreview.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Bilford, Brian J., Harper’s Bazaar: The Marketplace of Ideas and Hate Speech in Schools, 4
Stanford J. Civil Rts & Civil Lib. 447 (Oct.
2008).
Bogdan, Michael, Book Review of “All’s Well
That Ends Registered? The Substantive and
Private International Law Aspects of NonMarital Registered Partnership in Europe: A
Comparison of the Laws of Belgium, France,
The Netherlands, Switzerland and the United
Kingdom,” by Ian Curry-Sumner, 77 Nordic J.
Int’l L. 533 (2008).
Bowen, Deirdre M., The Parent Trap: Differential Familial Power in Same-Sex Families, 15
Wm & Mary J. Women & L. 1 (Fall 2008).
Brown, Josie F., Representative Tension: Student Religious Speech and the Public School’s
Institutional Mission, 38 J. L. & Education 1
(Jan. 2009).
Carmi, Guy E., Dignity Versus Liberty: The
Two Western Cultures of Free Speech, 26 B.U.
Int’l L.J. 277 (Fall 2008).
Conn, Kathleen, Parents’ Right to Direct
Their Children’s Education and Student Sex
Surveys, 38 J. L. & Education 139 (Jan. 2009).
DeGroff, Eric A., Parental Rights and Public
School Curricula: Revisiting Mozert after 20
Years, 38 J. L. & Education 83 (Jan. 2009).
Dreger, Alice, Gender Identity Disorder in
Childhood: Inconclusive Advice to Parents, 39
Hastings Ctr Rep No. 1, 14 (Jan/Feb 2009).
Eberle, Edward J., Equality in Germany and
the United States, 10 San Diego Int’l L.J. 63
(Fall 2008) (includes discussion of equality
rights for sexual minorities).
Elrod, Linda D., and Milfred D. Dale, Paradigm Shifts and Pendulum Swings in Child
Custody: The Interests of Children in the Balance, 42 Fam. L. Q. 381 (Fall 2008).
Estin, Ann Laquer, Golden Anniversary Reflections: Changes in Marriage After Fifty Years,
42 Fam. L. Q. 333 (Fall 2008)(the reference to
“golden anniversary” is to the 50th anniversary
of the founding of the American Bar Association’s Section on Family Law).
Felder, Myrna, Recognition of Same-Sex
Marriage, New York Law Journal, February 10,
2009 (Family Law column).
Fellmeth, Aaron Xavier, State Regulation of
Sexuality in International Human Rights Law
and Theory, 50 Wm. & Mary L. Rev. 797 (Dec.
2008).
Garcia-Rodrigo, Candice A., An Analysis of
and Alternative to the Radical Feminist Position
on the Institution of Marriage, 11 J. L. & Fam.
Stud. 113 (2008).
Glass, Christy M., and Nancy Kubasek, The
Evolution of Same-Sex Marriage in Canada:
Lessons the U.S. Can Learn From Their Northern Neighbor Regarding Same-Sex Marriage
Rights, 15 Mich. J. Gender & L. 143 (2008).
Goldberg, Suzanne G., Sarah Hinger, &
Keren Zwick, Equality Opportunity: Marriage
Litigation and Iowa’s Equal Protection Law, 12
J. Gender, Race & Justice 107 (Fall 2008).
Harman, Brigman L., Is a Strip Club More
Harmful Than a Dirty Bookstore? Navigating a
Circuit Split in Municipal Regulation of Sexually Oriented Businesses, 2008 Brig. Yng. U. L.
Rev. 1603.
Hart, Matt, The Geriatric Sex Offender: Senile
or Pedophile?, 32 L. & Psych. Rev. 153 (Spring
2008).
Huffman, M. Blake, Out of Step: Why Pulliam v. Smith Should Be Overruled to Hold All
North Carolina Parents — Gay and Straight —
to the Same Custody Standard, 87 N. C. L. Rev.
257 (Dec. 2008).
Kaufman, Dennis A., The Tipping Point on
the Scales of Civil Justice, 25 Touro L. Rev. 347
(2009) (uses the history of sodomy law litigation through Lawrence v. Texas as basis for an
argument concerning litigation over right to appointed counsel).
Kendell, Kate, Ending Discrimination Based
on Sexual Orientation and Gender Identity, 35
Hum. Rts. No. 4, at 18–19 (Fall 2008)(part of a
series of articles in the forms of memoranda to
President Obama about the policy agenda of
the civil rights community).
Kessler, Laura T., The Politics of Care, 23
Wis. J.L. Gender & Soc’y 169 (Fall 2008).
Knauer, Nancy J., LGBT Elder Law: Toward
Equity in Aging, 32 Harv. J. L. & Gender 1
(Winter 2009).
Larson, Jacob, It’s About Time, or Is It?: Iowa
District Court’s Invalidation of Iowa’s MiniDOMA, 12 J. Gender, Race & Justice 153 (Fall
2008).
Lesbian/Gay Law Notes
Lawrence, Frederick M., The Evolving Federal Role in Bias Crime Law Enforcement and
the Hate Crimes Prevention Act of 2007, 19
Stanford L. & Pol’y Rev. 251 (2008).
Lorillard, Christine Metteer, Placing
Second-Parent Adoption Along the “Rational
Continuum” of Constitutionally Protected Family Rights, 30 Women’s Rts. L. Rep. 1 (Fall
2008).
Macias, Steven J., Rorty, Pragmatism, and
Gaylaw: A Eulogy, A Celebration, and A Triumph, 77 UMKC L. Rev. 85 (Fall 2008).
McGavran, Wolfgang, Picking Roommates
on the Internet: Matching Roommates Online
and Losing Communications Decency Act Immunity in the Process, 11 Tulane J. Tech. & Intell. Prop. 139 (Fall 2008).
Meyer, David D., The Constitutionalization of
Family Law, 42 Fam. L. Q. 529 (Fall 2008).
Meyers, Julie, Reliable Consultants, Inc. v.
Earle, 517 F.3d 738 (5th Cir. 2008), Case Note,
40 Urb. Law. 1005 (Fall 2008) (Texas sex toys
case).
Michaelson, Jay, Chaos, Law, and God: The
Religious Meanings of Homosexuality, 15 Mich.
J. Gender & L. 41 (2008).
Moore, Siji A., Out of the Fire and Into the
Frying Pan: Georgia Legislature’s Attempt to
Regulate Teen Sex Through the Criminal Justice
System, 52 Howard L.J. 197 (Fall 2008).
March 2009
Musselman, James L., What’s Love Got to Do
With It? A Proposal for Elevating the Status of
Marriage by Narrowing Its Definition, While
Universally Extending the rights and Benefits
Enjoyed by Married Couples, 16 Duuke J. Gender L. & Pol’y 37 (Jan. 2009).
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) (argues that court
erred and should have resorted to legislative history to adopt a narrower scope for the ambiguous
anti-gay state marriage amendment).
Russell, Gabrielle, Pedophiles in Wonderland: Censoring the Sinful in Cyberspace, 98 J.
Crim. L. & Criminology 1467 (Summer 2008).
Seidman, Louis Michael, The Dale Problem:
Property and Speech under the Regulatory
State, 75 U. Chi. L. Rev. 1541 (Fall 2008).
Seto, Theodore P., The Unintended Tax Advantages of Gay Marriage, 65 Wash. & Lee L.
Rev. 1529 (Fall 2008).
Tainer-Parkins, Bridget, Protection From a
Well-Founded Fear: Applying the Disfavored
Group Analysis in Asylum Cases, 65 Wash. &
Lee L. Rev. 1749 (Fall 2008).
57
White, Emily A., Prosecutions Under the
Adam Walsh Act: Is America Keeping Its Promise?, 65 Wash. & Lee L. Rev. 1783 (Fall 2008).
Wilson, Robin Fretwell, and Douglas Laycock, Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Rowman & Littlefield, 2008).
Zirkel, Perry A., School Sex Surveys and Parental Consent, 38 J. L. & Education 135 (Jan.
2009).
AIDS & RELATED LEGAL ISSUES:
Larsen, Kari, Deliberately Indifferent: Government Response to HIV in U.S. Prisons, 24 J. Contemp. Health L. & Pol’y 251 (Spring 2008).
Serovich, Julianne M., Case Studies in Ethics
and HIV Research (book review essay), 29 J.
Legal Med. 387 (July-September 2008).
EDITOR’S NOTE:
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Law Notes are those of identified writers, and
are not official positions of the Lesbian & Gay
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