Document 2568540

December 2008
CALIFORNIA VOTERS OVERRULE STATE SUPREME COURT ON MARRIAGE; SUPREME COURT AGREES TO HEAR LEGAL CHALLENGES
On November 4, as the national ticket of Barack Obama and Joseph Biden was sweeping
the state, California voters nevertheless approved Proposition 8, with 52% of the vote
based on early tallies. Proposition 8 proposed a
new amendment to Article I of the California
Constitution, Section 7.5, providing that only
the marriage of a man and a woman “is valid or
recognized in California.” Its passage does not
affect the state’s Domestic Partnership Law, under which same sex couples can register their
partnership and obtain most of the legal rights
accompanying marriage under California state
law. Proposition 8 places in the California Constitution the exact wording that was enacted in
statutory form in 2000 as Proposition 22, when
it earned over 60% of the vote. That statutory
initiative measure was declared unconstitutional under the state constitution by the California Supreme Court in In re Marriage Cases,
183 P.3d 384 (Cal., May 15, 2008).
Several lawsuits were immediately filed on
November 5 and 6 challenging Proposition 8,
assuming that it would be finally declared enacted once all the provisional and absentee ballots were counted, three in the California Supreme Court seeking extraordinary relief, and
one in the federal district court in Santa Anna,
seeking a declaration of invalidity under the
federal constitution. The Supreme Court agreed
to consider the three petitions on November 17,
after receiving a response from Attorney General Jerry Brown agreeing with the petitioners
that the matter presented an important constitutional issue that required urgent resolution.
However, the court refused to stay the effectiveness of Proposition 8 pending a resolution of the
challenges, with Justice Moreno dissenting on
this point. Justice Kennard did not sign the
court’s order agreeing to take up the case, but
she indicated she would have entertained a petition focused just on the impact of Proposition
8 on marriages performed prior to election day.
The state petitions were filed on behalf of a
lesbian married couple Tyler & Olson v. State of
California, a group of same sex couples seeking
to marry Strauss v. Horton, and several political
subdivisions seeking to reconcile the equal
protection rights of their gay residents with the
LESBIAN/GAY LAW NOTES
new amendment City and County of San Francisco v. Horton. All three turned on some variant
of the argument that Proposition 8’s effect on
constitutional theory was significant enough to
constitute the measure a “revision” rather than
a mere “amendment.” The consequences of so
classifying would be to render Prop 8 invalid,
since it was not proposed by 2/3 vote of both
houses of the state legislature or a constitutional convention. Similar arguments have
been made against marriage amendments in
other jurisdictions, most notably Oregon, but
without success. However, this is the first time
such an amendment was adopted after a state
Supreme Court had ruled that same sex marriage falls within the broad fundamental right to
marry, and that sexual orientation is a suspect
classification for state equal protection purposes. This opened up the argument that the
initiative amendment process should not be
available to allow a simple majority of voters
through an initiative to strip a group of people
defined by a suspect classification of a fundamental right.
The fourth immediate lawsuit, brought on
behalf of Arthur Smelt and Christopher Hammer, Orange County residents who married over
the summer, claims that the enactment of
Proposition 8 violates their federal constitutional rights. News reports were vague as to the
exact theory, but one suspects that the 14th
Amendment was a primary basis of a due process and equal protection claim, and perhaps
they could claim that Proposition 8 was an
invalid state enactment impairing the obligation of contracts. Smelt and Hammer had previously mounted an unsuccessful federal court
attack against the federal Defense of Marriage
Act.
On November 14, new allies appeared in the
battle against Proposition 8, as a petition was
filed seeking a writ of mandate against the
measure going into effect by a group of civil
rights organizations, including the Asian Pacific American Legal Center, the California
State Conference of the NAACP, Equal Justice
Society, the Mexican American Legal Defense
and Educational Fund, and the NAACP Legal
Defense and Educational Fund, Inc. These orDecember 2008
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NYC 10013, 212–431–2156, fax 431–1804; e-mail: [email protected] or
[email protected]
Contributing Writers: Chris Benecke, J.D., NYC; Glenn Edwards, Esq., NYC; Alan J. Jacobs, Esq., NYC; Bryan Johnson, J.D., NYC; Steven Kolodny, Esq., NYC;
Alvin Lee, Student, Harvard Law School ‘09; Ruth Uselton, J.D., NYC; Stephen E. Woods, NYLS ‘10; Eric Wursthorn, JD, NYC.
Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212–353–9118; e-mail: [email protected]. Inquire for rates.
LeGaL Homepage: http://www.le-gal.org
Law Notes on Internet: http://www.nyls.edu. Go to Justice Action Center homepage.
©2008 by the LeGaL Foundation of the LGBT Law Association of Greater New York
ISSN 8755–9021
ganizations, concerned primarily with racial
justice issues, weighed in to show their concern
with the prospect that equal protection victories
achieved by racial minorities in California
could be reversed by the initiative process. Reinforcing the arguments made by the earlier petitioners, the civil rights group petition emphasized that Proposition 8, if allowed to go into
effect as a constitutional amendment, effected a
“qualitative revision” of the California Constittuion’s guarantee of equality under the law to all
citizens.
The court’s November 17 announcement
specified three questions to be addressed by
the parties: (1) whether Proposition 8 was a revision rather than an amendment, (2) whether
Proposition 8 violated separation of powers
principles, and (3) what impact, if any, Proposition 8 would have on marriages performed prior
to November 5. Justice Kennard’s decision not
to sign the order taking up the case was cause
for some speculation, since she was part of the 4
3 majority that decided the Marriage Cases and
her vote was considered by many to be crucial
to any decision invalidating Proposition 8 by
the sharply divided court. On the other hand,
the questions now pending are not about the
merits of the Marriage Cases, but rather on different questions about the roles of the people,
the legislature, and the court in effecting
changes to the state’s constitutional order.
Organizers of the campaign to defeat Prop 8
quickly encountered biting criticisms in the
LGBT press and on blogs, as exit polls suggested that their campaign had, despite raising
large sums of money, proven ineffectual at persuading the necessary numbers of Californians
to defeat the measure. One widely cited exit
poll concluding that 70% of African American
voters had supported Prop 8 led some to suggest
that the measure’s passage could be attributed
to homophobia in the black community, which
had been energized to higher than usual turnout
by the Obama Presidential campaign. That the
“Yes on 8” advertising campaign had capitalized on Senator Obama’s announced opposition
to same sex marriage was also cited to support
this theory. Although Obama had stated his opposition to Prop 8, the organizers of the “No on
8” campaign did not make much use of this and
did not undertake any special effort to win over
African American voters. On the other hand,
exit polling is notoriously inaccurate and
doesn’t take into account the effect of absentee
voting, and later studies suggested that the percentage of African American voters who supported Prop 8 was probably not much greater
than the percentage of other groups. The most
significant demographic factors predictive of
228
support, according to these studies, were age
and religiosity.
The vote stimulated a surge of grass roots
protests, mainly organized through the internet,
resulting in street demonstrations in several
cities during the week of November 10, culminating in simultaneous demonstrations in several hundred locations on Saturday, November
15. Many demonstrations were particularly tar-
December 2008
geted at the Mormon Church, which reportedly
played a heavy role in financing and supporting
the “Yes on 8” campaign, and some angry activist filed a charge with state election officials,
contending that the Church had violated state
disclosure rules concerning its political activities. Late in the month, there were press reports
that the state was launching an investigation.
The protests drew substantial press attention,
Lesbian/Gay Law Notes
but also inspired questions about why the “No
on 8” campaign had such trouble raising
money and volunteer support if the right to
marry was so important to so many LGBT people. Hope was express that a new wave of engagement and activism might be channeled
into a successful effort to repeal the measure if
it was not stricken by the California Supreme
Court. A.S.L.
LESBIAN/GAY LEGAL NEWS
Same Sex Marriages Begin in Connecticut
Following up on the Connecticut Supreme
Court’s decision in Kerrigan v. Commissioner of
Public Health, 289 Conn. 135, 957 A.2d 407
(2008), New Haven Superior Court Judge Jonathan Silbert issued an order on November 12
authorizing city and town clerks to begin issuing marriage licenses to same sex couples. The
ruling came in the wake of some tension over
whether marriage rights might be in danger in
Connecticut due to a ballot question asking the
voters on November 4 whether they wanted to
initiate the process of a constitutional convention to consider changes to the state’s constitution. The measure was on the ballot automatically, since Connecticut’s constitution provides
that the question be put to the voters periodically. After the Kerrigan decision was announced on October 10, some opponents of
same sex marriage began urging the public to
support the constitutional convention proposal,
hoping that in such a forum they might achieve
constitutional changes that would invalidate
the decision. But the public did not take the
bait, and the convention question went down to
defeat decisively.
Connecticut has no residency requirement or
waiting period for marriage, so applicants can
just show up when a clerk’s office is open, obtain a license, and then have a ceremony, provided they have lined up an authorized officiant. As a result, the temptation to the nearby
New York City gay community will be great to
marry in Connecticut, especially as New York,
at least for now, is officially recognizing such
marriages. A little more effort was required this
summer to marry in Massachusetts after the old
statutory prohibition on out of state residents
marrying to evade their state law restrictions
was lifted. New Yorkers have been able to get
married in Canada for a long time, now, and
most of the marriage recognition precedents in
the state involve Canadian marriages, but
somehow going out of the country to marry has
been a deterrent to many potential same sex
married couples.
Connecticut had previously adopted a civil
union law, which went into effect in October
2005. There have been about 2,000 civil unions, according to a November 12 Associated
Press article that reported Judge Silbert’s ruling. A.S.L.
Election of Obama/Biden Ticket and Democratic
Congressional Majorities May Lead to Significant
Developments for LGBT Rights
The national elections on November 4 could
signal significant developments ahead for
LGBT rights, if the Democratic Party platform
and the announced positions of the campaign of
Senators Barack Obama and Joseph Biden are
taken seriously when the new government begins in 2009.
Senator Obama’s campaign advocated repeal of the Defense of Marriage Act, a federal
statute enacted during the Clinton Administration that purports to relieve states from any obligation to afford “full faith and credit” to same
sex marriages performed in other jurisdictions,
and that establishes the marriage of a man and a
woman as the only legal relationship recognized as a marriage for purposes of federal law.
Under DOMA, the federal government is not
obligated to recognize same sex marriages contracted in foreign countries or in those states
that allow them. Some constitutional scholars
argue that the Full Faith and Credit Clause of
the federal constitution actually has no application to the issue of marriage recognition by the
states, contending instead that the decision
whether to recognize same sex marriages from
other jurisdictions will be made with reference
to principles of comity. However, DOMA has
been cited by some state courts as justifying the
refusal to recognize same sex marriages from
elsewhere. When DOMA was passed in 1996,
Republicans controlled both houses of Congress, and the measure was considered during
the heat of a national election contest.
The Obama campaign also advocated an end
for the current military policy of “don’t ask,
don’t tell,” which would also require action
from Congress. This policy in its current form
also dates from the Clinton Administration, and
was passed at a time when the Democrats had
controlling votes in both houses of Congress. A
repeal, substituting for it a non discrimination
policy for the military, would probably require a
major investment of political capital by the
president. Political pundits generally agree that
President Clinton made a mistake in advancing
the issue of gay military service at the outset of
his administration, before the groundwork had
been done to build Congressional support for
ending the then existing absolute ban on service. The Obama Administration may take a lesson from this and defer action until later, in light
of the major issues looming in the economy and
foreign affairs.
The Obama campaign also supports enactment of the Employment Non Discrimination
Act. Indeed, with substantial Democratic majorities in both houses of Congress and an administration further along on this issue than
prior ones, perhaps the time is right to abandon
the narrow bore employment discrimination
bill that has been proposed repeatedly since
1993, and introduce a more wide ranging civil
rights bill that would also address housing,
public services, and the other financial rights in
which federal law prohibits race and sex discrimination. In an early sign that the Obama
Administration is willing to embrace a broader
approach, the transition team announced in
October that applications for appointments in
the administration would be covered by a non
discrimination policy that includes sexual orientation and gender identity.
Although Senator Obama had not formally
endorsed the measure in the Senate, it was expected that the Obama Administration would
support efforts to provide recognition for binational same sex couples in the immigration process, and that the Administration would be
open to appointing openly LGBT people with
appropriate qualifications to federal offices, including judicial appointments. During the transition period, the press reported that plans were
being laid to frame appropriate executive orders to change some policies that had been
adopted by executive order in the prior administration. High on the list was a plan to overturn
administrative restrictions on use of federal
money for explicit safer sex education in the effort to combat HIV/AIDS, including the infamous “gag rule” that prohibits recipients of
federal funds from providing any abortion related counseling or services, and regulations
that had withheld funding from AIDS service
organizations that sought to distribute condoms, work with prostitutes on risk reduction
without denouncing their clients, or that failed
Lesbian/Gay Law Notes
to make abstinence education the centerpiece
of their prevention efforts. A.S.L.
Arkansas Voters Disqualify Cohabitants From
Fostering or Adopting Children
On November 4, Arkansas voters approved a
measure providing that no individual can serve
as a foster parent or adoptive parent if they are
“cohabiting with a sexual partner outside of a
marriage which is valid under the constitution
and laws of this state.” The measure specifies
that it applies equally to “opposite sex and
same sex individuals,” whatever that means. In
other words, this is one of those clumsily
worded voter initiatives guaranteed to stimulate
litigation about its meaning and constitutionality. Almost 57% of the voters favored this measure, according to totals posted on the Arkansas
Secretary of State’s website on November 14,
when a small percentage of the vote remained to
be counted.
The measure was proposed in response to a
ruling by the Arkansas Supreme Court in Department of Human Services and Child Welfare
Agency Review Board v. Howard, 238 S.W.3d 1
(Ark. 2006), which invalidated a regulation
disfavoring unmarried couples as foster parents
on separation of powers grounds. The existing
statutory framework governing foster care in
Arkansas was held by the court not to authorize
the regulation, which the state could not show
had been undertaken for a purpose that benefited the welfare of children needing foster care.
The enactment of the statute by proposition was
intended to provide the “missing” statutory
authorization for preventing foster or adoptive
children from being raised in non traditional
families.
The statute enacted by the initiative also provides a public policy declaration, to wit, “The
public policy of the state is to favor marriage, as
defined by the constitution and laws of this
state, over unmarried cohabitation with regard
to adoption and foster care.”
A literal application of the measure would
disqualify any individual from being a foster or
adoptive parent if they are cohabiting with another adult in a sexual relationship, and presumably also rules out joint foster or adoptive
parents who are not married to each other. The
measure, by its terms, applies prospectively
from January 1, 2009, so it does not require the
state to terminate any existing foster or adoptive
relationships.
Since Arkansas bans same sex marriage by
constitution and statute, this would automatically disqualify any gay person who is living
with a same sex partner in a sexual relationship,
but it would also disqualify many unmarried
heterosexual couples, and is likely to present a
crisis for the Arkansas child welfare system,
which was already struggling to find sufficient
foster and adoptive placements before this pol-
December 2008
229
icy was enacted. The new statute makes no
sense as a rational child welfare policy, and one
expects that it will be challenged on the merits
under the Arkansas and federal constitutions.
A.S.L.
ing resources in defending lawsuits that might
be filed by anti gay forces. A.S.L.
Voters Adopt Same Sex Marriage Bans in Arizona
and Florida
A panel of the U.S. Court of Appeals for the 9th
Circuit, finding that an Immigration Judge had
violated the due process rights of a gay Iranian
man who had applied for asylum, ordered a new
hearing before a different Immigration Judge in
Hassani v. Mukasey, 2008 WL 4989149 (Nov.
13, 2008) (not published in F.3d). The court’s
memorandum opinion is not attributed to any
particular member of the panel.
According to the decision, “Hassani argues
that he was arrested, interrogated, detained,
and tortured in Iran on account of his homosexuality. Although he concedes that his arrests
were in accordance with Islamic law for his
public association with women and his possession of alcohol, he maintains that those grounds
were merely pretext. Hassani argues that the
true motivation of the Iranian police was to take
him into custody in order to force him to confess
his homosexuality and name his male partners.
Under Islamic law, such a confession could
have led to the death penalty.”
Hassani sought to have an expert, a professor
specializing in Islamic studies, testify in support of case, but the Immigration Judge (IJ) refused to hear the expert, stating that she had already decided based on Hassani’s testimony
and response to her questions that he was not
credible. According to t he court’s summary,
“before Hassani’s expert witness had a chance
to testify, the IJ determined that Hassani was
not a credible witness. This determination was
based, in part, on the IJ’s speculation as to how
a gay man would behave in Iran, as well as assumptions about how sharia, Islamic customary law, treats homosexuality. For example, the
IJ asked Hassani why he would have violated
the law by being in the company of women
when he was already afraid for his life. Hassani
explained that this crime was less serious than
homosexuality, would not have put his life at
risk, and was committed to disguise his homosexuality. The expert likely would have been
able to shed light on Islamic law’s treatment of
these various crimes, perhaps explaining Hassani’s behavior. The IJ also stated in her decision that Hassani’s account of the Iranian government’s actions against him made no sense
because if the police had wanted to kill him for
being gay, they would have done so long ago.
The expert could have explained under what
circumstances Islamic law permits execution
for homosexuality or sodomy. These are only
two examples, but the record is peppered with
the IJ’s expressions of doubt where expert testimony might have bolstered Hassani’s claims.”
The court, noting its prior decisions on point,
observed that asylum applicants are entitled to
In 2006, Arizona earned the distinction of being the first state in which voters had defeated a
proposed constitutional amendment banning
same sex marriages. The Arizona amendment
proposal that year was for a broad ban on legal
recognition in any form similar to marriage for
unmarried partners, a form of overreaching that
allowed for a broad coalition to form against it in
order to protect domestic partnership benefits
and other entitlements enjoyed by cohabiting
elders as well as same sex couples. This time
around, however, the proponents put forward a
narrow marriage ban, and the difference meant
that the successful coalition of 2006 could not
be replicated. With national fund raising efforts
focusing on California, where Prop 8 threatened to take away rights recently won through
litigation, the Arizona opponents of the ballot
measure could not raise significant funds and
were unable to mount a major campaign against
the measure.
Similar problems occurred in Florida, where
a more wide ranging constitutional amendment
banning both same sex marriage and other arrangements similar to marriage (such as civil
unions) won voter approval. In Florida, as in
Arizona, the simultaneous efforts in California,
which drew millions of dollars in donations
from around the country, left the Florida opposition seriously short on cash and public interest. For much of the election season, it seemed
that the measure might fall short of the 60% required in Florida to approve a constitutional
amendment, as it was polling in the low to mid
50s, but it has generally proven true that anti
same sex marriage ballot measures tend to draw
voter support at higher rates than pre election
polls would predict, and so it proved in this
case, as the measure easily surmounted the
60% thresshold. The Florida legislature, securely in Republican hands, was not likely to
pass a civil union or marriage bill in any event,
but the amendment guarantees that a greater
effort to repeal a constitutional amendment
would have to proceed any major progress on
this front, in Florida as well as Arizona. •••
Passage of the measure left in doubt the domestic partnership benefits policies that have been
adopted by some Florida counties and municipalities. On Nov. 9, the Sun Sentinel reported on
a survey it had made of local government leaders in some of those jurisdictions, and found determination to preserve the benefits programs,
even if it means restructuring them or expend-
9th Circuit Orders New Asylum Hearing For Gay
Iranian Man
230
due process of law, which includes the right to
present expert testimony to corroborate and
bolster their contentions as to why they are entitled to asylum in the United States. For the IJ to
have made a credibility determination without
hearing Hassani’s proffered expert was to deny
him the most fundamental procedural right,
thus invalidating the IJ’s decision, which had
been affirmed in the usual pro forma manner by
the Board of Immigration Appeals.
Hassani had also filed a motion for reconsideration by the BIA, arguing that since he had
converted from Islam to Christianity since arriving in the United States, circumstances had
changed making it even more imperative that
he not be deported to Iran, where such conversions are subject to the death penalty under traditional Islamic law. The court decided that because it was remanding his case for plenary
reconsideration, the BIA motion was moot.
The court took the step of suggesting that in
light of the IJ’s original inappropriate credibility determination, the matter should be assigned to a new IJ.
Actually, we found this entire case quite startling. The idea that any U.S. Immigration Judge
would contemplate sending an openly gay man
back to Iran is bizarre, in light of the reports by
the press and international human rights organizations about the severe punishments
meted out to gay men by Islamic courts. Any
gay Iranian who escapes to the United States,
particularly one who has converted from Islam
to another faith, would surely have a well
grounded fear of persecution and perhaps torture were he to be officially deported to Iran, especially under circumstances where Iranian officials would have knowledge of the reason for
the deportation. A.S.L.
North Dakota Supreme Court Extends Gay Man’s
Civil Commitment
A decision by the North Dakota Supreme Court
to prolong the civil commitment of a gay man
whose past includes a sexual interest in adolescent males drew a strong dissenting opinion
from a member of the court, who argued that the
man, identified in the opinion as M.D., was being improperly deprived of his liberty because
he engaged in a constitutionally protected relationship with “young looking” adult. In the
Matter of M.D., 2008 Westlaw 4925902 (Nov.
19, 2008).
The opinion for the court by Justice Dale
Sandstrom is short on details. Apparently,
M.D., whose age is not stated by the court, was
determined to be a “sexually dangerous individual” because of his sexual activities with
teenage boys. He was civilly committed to a
treatment facility in 1998. After almost a decade of treatment, he petitioned for the first time
to be released in 2007.
December 2008
The trial court appointed an expert evaluator,
Dr. Riedel, to examine the case, and the state
assigned its own expert, Dr. Sullivan, to make a
similar evaluation. Dr. Riedel interviewed
M.D., reviewed his records, and administered a
series of actuarial evaluations. He concluded
that M.D. was no longer likely to “engage in further acts of sexually predatory conduct,” and
thus should not be classified as a sexually dangerous individual. Dr. Sullivan disagreed, finding that M.D.’s records showed disturbing comments about his continuing sexual interests.
Sullivan also focused on the allegation that
M.D. showed great interest in two very young
looking men in his treatment group, and had in
violation of the rules of the facility carried on an
18 month romantic affair with another young
looking resident. All of these young looking
men, by the way, were adults, not teenagers.
The trial court, confronted with conflicting
expert testimony, decided that M.D. “continues
to be a sexually dangerous individual,” and denied his petition for discharge. He appealed the
denial to the Supreme Court.
M.D. alleged on appeal that the state failed to
prove that he was likely to commit further sexually predatory acts. The court took the position
that it should uphold the trial court’s decision
unless “it is not supported by clear and convincing evidence.” Like the trial court, the Supreme Court decided to resolve the conflicting
expert testimony in favor of the state.
Justice Sandstrom observed that M.D. had
not “completed sex offender treatment,” because his occasional disruptive comments had
caused him to be excluded from participating in
group treatment, where he was relegated to the
role of note taker. Dr. Sullivan had concluded
that M.D.’s attraction to younger looking men
meant that he “continues to show symptoms of
attraction to adolescent males” since the men
to whom he was attracted looked like teenagers,
even though they were not. Sandstrom also asserted that the records showed M.D. still had
problems controlling his behavior, for which his
relationship with another resident was evidence.
Dissenting, Justice Carol Ronning Kapsner
found the trial court’s decision to be “clearly
erroneous.” She pointed out that the burden
was on the state to prove that M.D. was likely to
reoffend, and she found that the case had not
been made. Most significantly, she invoked the
Supreme Court’s decision in Lawrence v. Texas
to support her argument that M.D. was suffering
an improper restriction on his liberty for engaging in conduct a consensual affair with another
adult male that is constitutionally protected.
“In Lawrence,” she wrote, “the actions took
place in a private residence, while in the present case, the actions took place in a treatment
facility, and the actions were against treatment
rules. Even so, M.D. is being confined civilly
for actions for which, according to this State’s
Lesbian/Gay Law Notes
criminal code, and United States Supreme
Court precedent, he cannot be punished criminally. It was clearly erroneous for the district
court to rely on the fact that M.D. was involved
in a homosexual relationship as sufficient to
deny M.D.’s petition for discharge. Facts for
which the individual cannot be criminally
prosecuted can be considered but add little, if
anything, to establish that the individual remains a sexually dangerous individual.”
Justice Kapsner disputed Dr. Sullivan’s conclusion that M.D.’s attraction to a “young looking” adult should be considered evidence that
he remained sexually interested in adolescents.
She argued that “reliance on such a fact as
meeting the statutory criteria” for being sexually dangerous “is clearly erroneous.”
She also pointed out that M.D. had been civilly committed for ten years. “Requiring an
adult, regardless of his or her sexual orientation, to be celibate for ten years seems to be
such an unrealistic expectation, that one wonders how it can contribute to, rather than frustrate, the individual’s therapy.” She was also
sarcastic about a treatment program that had
run for ten years without achieving any success.
When all this was taken together with Dr. Reidel’s testimony based on the actuarial tests, she
asserted that the statutory requirement of proof
of continued dangerousness had not been met
in M.D.’s case. A.S.L
New York Appellate Division Holds Transsexual
Woman Entitled to Name Change
Rejecting a trial judge’s objection that a gendered name change would cause “confusion,” a
unanimous panel of the New York Appellate
Division, 3rd Department, ruled on November
26 in Matter of Earl William Golden III, No.
504992, that the trial court should have ordered the name change, but should include in
its order a statement that the name change
could not be used as proof of a change of sex.
Franklin Romeo of the Sylvia Rivera Law Project represented Golden on the appeal.
According to an article about the case published in the New York Law Journal on November 28, Supreme Court Justice Jeffrey A. Tait of
Broome County received the petition for a name
change from Golden, seeking a legal change of
name to Elizabeth Whitney Golden, on the
ground that the petitioner, who is married to a
woman, now identifies as female. Golden’s wife
did not object to the name change. Golden presented no evidence of any surgical alteration of
sex.
Justice Tait asserted that the change from a
traditionally male to a traditionally female
name was “fraught with confusion,” and dismissed the petition.
Justice Anthony V. Cardona, writing for the
appellate panel, noted that under New York’s
common law, anybody can assume a new name
Lesbian/Gay Law Notes
so long as this is not being done to commit fraud
or deception, without going through any legal
proceeding, but a state statute authorizes the
Supreme Court to grant name change petitions
in order to make such a change “speedy, definite, and a matter of record.” Having a court order expedites the process of getting other documents, such as driver’s license, social security
card, other forms of identification, and passports issued in the new name.
Cardona pointed out that courts have routinely granted non fraudulent name change requests unless there is some sort of “reasonable
objection” to the selected name. Since a name
change will always engender a certain amount
of confusion, wrote Cardona, potential confusion is a ground for refusing to grant the petition, so long as all technical requirements of the
law are met. Evidently, the appellate panel felt
that the lack of evidence of sex reassignment
surgery was not an impediment, as the issue
was not discussed by the court.
Getting a name change is an important step
for a transsexual seeking to assert his or her
gender identity, for psychological and legal reasons, and the refusal of judges to grant such
name changes freely has remained a significant
impediment, even in New York where there is a
well established legal tradition of freely granting name change petitions. Volunteer lawyers
in New York staff a special legal clinic under
the auspices of the LGBT Community Services
Center to provide assistance to transsexuals
seeking legal name change orders. A.S.L.
California Court of Appeal Imposes Duty of Care
to Inmates on Prison Officials
In a case of first impression in California, a
panel of the Court of Appeal on November 14
determined that jailors have a duty of care to
their prisoners. Giraldo v. California Department of Corrections and Rehabilitation, 2008
WL 4891584. Also in a ruling of first impression, the court ruled that the California Constitution does not allow a private cause of action
for violation of its cruel or unusual punishment
clause.
Alexis Giraldo, a male to female transsexual,
was incarcerated in California for a parole violation in October 2005. She had enough credit
under the California penal system to be sent to a
prison that would be safer and more friendly to
transgendered individuals, and her sentencing
recommendation was that she be sent to one of
these safer prisons. Instead, on January 4,
2006, Giraldo was sent to Folsom State Prison,
an institution considerably more dangerous for
transsexual inmates.
Soon after her arrival, an inmate employed as
a lieutenant’s clerk requested that Giraldo be
moved to his cell, and the inmate immediately
began raping and physically abusing her. The
cellmate also “introduced” Giraldo to another
December 2008
inmate, who soon requested that Giraldo be
moved to his cell. After that request was
granted, he too began abusing and raping her.
Giraldo complained to prison officials a
number of times, at least two of which are in the
official records of the prison. The records not
only show that Giraldo did complain, but also
detail the allegations of abuse and the indifferent responses of counselors and other officials
at the prison. Giraldo’s complaints were ignored and she was always returned to the same
cell, until March 12, when a particularly brutal
rape by her cellmate wielding a boxcutter finally prompted her removal to segregated housing for psychologically troubled prisoners.
While in the segregated housing, Giraldo
feared being returned to the dangers of the general prison population and to the indifference of
prison staff, and filed a complaint. The complaint’s three causes of action were (1) negligence; (2) intentional infliction of emotional
distress; and (3) injunctive and declaratory relief, and damages based on prison officials’ violation of the cruel unusual punishment clause
of the California Constitution. The complaint
named a number of prison officials as well as
the California Department of Corrections and
Rehabilitation.
Knowing that she was due for parole in
August, Giraldo had asked that the trial be set
within 90 days of the complaint, and in April
that request was granted. However, in July,
amidst the trial proceedings, she was paroled a
month early. Because she was no longer incarcerated in the prison, Giraldo’s requests for injunctive and declaratory relief were dismissed
as moot.
Prior to trial, the defendants filed a demurrer
to the complaint, positing that Giraldo’s negligence claim was deficient because the prison
officials did not have a duty to protect prisoners
from the actions of third parties. With no duty to
protect prisoners, the officials could not be held
liable for negligence toward them. This demurrer was sustained in favor of the defendants,
and the emotional distress claim and constitutional claims were advanced to trial.
The trial judge found that the California Constitution did not allow a claim for damages under its cruel and unusual punishment clause,
and therefore Giraldo’s only valid claim was for
intentional infliction of emotional distress. After a jury found for the defendants on that claim,
Giraldo appealed.
The Court of Appeal affirmed the jury verdict. It also affirmed the trial court’s dismissal
of the constitutional claim, restating that the
claim for injunctive and declarative relief was
moot upon Giraldo’s release. Based on statutory interpretation and the presence of alternative remedies, the Court also affirmed that no
claim for damages was allowed under the cruel
and unusual punishment clause of the California Constitution.
231
The majority of the Court’s opinion was devoted to analyzing and quashing each of the arguments the defendants made in their demurrer
against the negligence claim. The Law and Motions Department, which sustained the demurrer, had given great credence to the fact that no
California court had ever found a legal duty
from prison officials to their inmates. The Department agreed with defendants, and reasoned
that in the absence of any opinion on the matter,
California did not impose any duty on their
prison staff. In a scathing response, the Court of
Appeals noted that while this was indeed an issue of first impression in California, every pertinent authority that has ever discussed the issue had found that a duty existed between jailor
and prisoner.
The defendants relied heavily on the torts
concept that individuals have no duty to act to
protect others from the actions of third parties.
Because the prison officials did not themselves
harm Giraldo, they argued, they could not be
held responsible for the rapes and abuse. As the
Court of Appeals pointed out, however, this
general rule is overridden if the actor has a
“special relationship” with the other person.
This special relationship arises when the “defendant stands in some special relationship to
either the person whose conduct needs to be
controlled or in a relationship to the foreseeable
victim of that conduct.” Tarasoff v Regents of
University of California, (1976) 17 Cal.3d 425.
The appellate court cited a number of authorities that all describe the special relationship
arising in jailor/prisoner situations. Additionally, the Court found that two California statutes
intended to reduce prisoner rape and abuse
while increasing accountability of prison staff
clearly showed that the legislature intended to
impose a duty between jailors and prisoners.
Having established a special relationship
duty between the defendants and the plaintiff,
the Court then analyzed the situation under traditional negligence standards and determined
that the plaintiff had established the requisite
elements. The Court reversed the trial court’s
decision on the demurrer and remanded the
case for further proceedings.
Though negligence cases against prison officials are notoriously difficult to win, Giraldo’s
contains some rather compelling allegations.
Prison records show that Giraldo repeatedly
gave detailed accounts of the abuse by her cellmates to counselors and officials. The complaint alleges that after one of these accounts
one of the named defendants, a counselor for
the prison, encouraged Giraldo to be “tough
and strong” and discouraged her from taking
any further action. On remand, the trial court
will have a disturbing record to consider. Stephen Woods
232
Connecticut Superior Court Finds in Favor of Gay
Bio Dads
On October 14, 2008, the Superior Court of
Connecticut held that married gay couples, who
enter into surrogacy agreements, in order to
have a woman carry their biological children,
are not required to terminate the parental rights
of the surrogate mother. Cunningham v. Tardiff,
2008 WL 4779641 (Conn. Super. Ct. 2008).
The court relied on the recent Connecticut gay
marriage case, Kerrigan v. Commissioner of
Public Health, Docket No. 17716, slip. Op.
(Conn. 2008), in which the state supreme court
held that homosexuals cannot be denied the
right to marry and that statutes which discriminate against homosexuals are subject to heightened scrutiny.
The state of Connecticut is one of approximately forty states which permit surrogacy
agreements. In Cunningham v. Tardiff, Bennett
Cunningham and his husband Michael Spann,
who were legally married in British Columbia
and Massachusetts, entered into a surrogacy
agreement with Jamie Tardiff and her husband
James Tardiff. Under the terms of the agreement, Jamie agreed to act as the gestational carrier of two embryos, one fertilized by Bennett
and the other fertilized by Michael. Both embryos were from an anonymous egg donor; thus,
Jamie was not genetically related to either of
the children although she was the birth mother.
Upon the birth of their children, the plaintiff
fathers, Cunningham and Spann, sued the Connecticut Department of Health. The fathers
sought a replacement birth certificate for both
children pursuant to a state statute that allows
the court to order replacement birth certificates
under certain circumstances, including surrogacy situations. Notably, the Tardiffs were not
suing to claim parental rights over the children
born by Jaime under the surrogacy agreement.
The Superior Court found that the public policy of the state of Connecticut favors issuing orders regarding surrogacy agreements. The
court noted that the primary issue was establishing the legal/intentional parents of the children, not the genetic or birth parents. Thus, the
importance of the parents’ names on the children’s birth certificates is not merely to acknowledge the genetic parentage but to establish who has legal responsibilities to the
children. Taking a very modern view of the family, Judge Holly Abery Wetstone recognized
that evolving reproductive technology allows
families to be formed in new and differing ways
than ever imagined. Thus, the court agreed with
plaintiffs and held that, because their marriage
is a legally recognized marriage, under the laws
of the state of Connecticut, any children born to
the plaintiff fathers through the surrogacy
agreement acquired all the status of legitimate
children. In other words, a heterosexual married couple that enters a surrogacy agreement
December 2008
in Connecticut can be recognized as the parents
on replacement birth certificates; therefore, the
married plaintiff fathers need not terminate the
parental rights of the surrogate mother. In addition, the court added that the plaintiff fathers
need not adopt their own children in order to
have their names placed on the replacement
birth certificates. Ruth Uselton
Federal Court Rules on Dispute Over Pride Flag
Burning
Ohioans who fear impermissible denial of a
permit to burn the “homosexual flag” in their
fair capital may now rest easy. Judge Marbley,
writing for the U.S. District Court for the Southern District of Ohio, recently found that a group
of Christians desiring to burn such flag, in addition to the Koran and judicial opinions that gave
“constitutional protection to sinful behavior”,
had no reason to worry that an open burn permit
would unconstitutionally be denied them in the
future. Daubenmire v. Columbus, 2008 WL
4758677 (Oct. 24, 2008). Judge Marbley found
that the plaintiffs did not have standing for a
Sec.1983 claim against the city of Columbus
because they failed to allege an injury in fact.
In 2001, a group of the plaintiffs traveled to
Columbus to protest the “perverse celebration
of the Homosexual lifestyle” that is Gay Pride.
After police stopped these plaintiffs from burning the rainbow flag, citing the lack of an “open
burn” permit, the plaintiffs were brought up on
charges. In 2004, these plaintiffs again filed for
a permit and were eventually granted permission to burn a rainbow flag. However, it is alleged that at least 20 police showed up at the
burning and intimidated the plaintiffs, though
no arrests were made.
Also in 2004, lead plaintiff Daubenmire,
founder of a ministry devoted to “upholding
Christian values in American culture,” applied
for a permit to burn the Koran, the rainbow flag,
and Supreme Court opinions that “undermined
Biblical morality.” Assuming no news is good
news, Daubenmire went forward with his plans
for protest despite not having received a response from the city. Daubenmire, however,
was stopped by the police at his scheduled
demonstration. After applying for, and receiving, a permit for a later demonstration, Daubenmire’s ministry successfully burned the Koran
but was eventually stopped by police before
they arrived at a federal court house to incinerate judicial opinions.
The plaintiffs had previously, and unsuccessfully, challenged the constitutionality of
the city’s regulations concerning the approval
of open burn permits. Plaintiffs then came before Judge Marbley with a 42 USC sec.1983
claim for injunctive relief against the city,
against which the city moved for summary
judgment. Judge Marbley began his analysis of
the plaintiffs’ claims by first turning to Article
Lesbian/Gay Law Notes
III standing to determine whether the plaintiffs
had a “significant possibility of future harm”
that would warrant pre enforcement review.
Although Plaintiffs were easily able to show
that they would indeed apply for such open
burn permits again, they were unable to show a
significant possibility of unconstitutional conduct on behalf of the city. The plaintiffs failed to
show either a deliberate policy of differential
treatment or an improper action on behalf of
someone with final policy making authority.
Further, the Assistant Fire Chief, who is charged
with enforcing the permit regulations, testified
that enforcement of the regulations would be
content neutral going forward. The plaintiffs
also failed to put forth evidence showing a policy of failing to properly train police officers
who enforce the fire code. With no evidence
showing that the plaintiffs faced future harm,
the plaintiffs failed to establish an “injury in
fact” needed for Article III standing. Chris Benecke
Federal Civil Litigation Notes
Eleventh Circuit — A gay Argentinian’s asylum
claim was rejected in Prado v. U.S. Attorney
General, 2008 WL 4962710 (Nov. 21, 2008)
(not published in F.3d). Although the plaintiff
alleged several run ins with law enforcement officials prior to leaving his home country, the
court upheld the Immigration Judge’s conclusion that he had not suffered from official persecution, and had not proven he was likely to suffer such persecution if deported back to
Argentina. The court drew a distinction between “harassment” and “persecution,” and,
as to the contention that anti gay prejudice is
rife in Argentina, the court noted, “Though he
asserts that all Argentinians hate gays, Prado
did not submit any documentation of generalized persecution, and the Country Report for
Argentina does not indicate human rights violations against gays.”
Ninth Circuit — A 9th Circuit panel has remanded to the Board of Immigration Appeals
the asylum case of a gay Guatemalan man, finding that an Immigration Judge and the BIA had
used the wrong legal standard to evaluate the
petitioner’s evidence about persecution in his
home country. Ortiz Alvarado v. Mukasey, 2008
WL 5008074 (Nov. 25, 2008)(not published in
F.3d). The opinion says little about the facts, although it notes the allegation that the petitioner
was disowned by his family and fired from his
job due to his sexual orientation. The court
found that the IJ and BIA erred in evaluating
the evidence piecemeal rather than looking at
the cumulative effect of all the incidents proffered by the petitioner as evidence of persecution.
Fifth Circuit — In Morris v. Trevino, 2008
WL 4996599 (Nov. 25) (not published in F.3d),
a panel of the U.S. Court of Appeals for the 5th
Lesbian/Gay Law Notes
Circuit revived the 8th Amendment suit filed
by a gay former Texas state prisoner, seeking
damages for being beaten by a prison employee
in an application of excessive force. Actually,
Morris’s suit articulated a variety of constitutional theories for relief, all premised on his being mistreated in the prison because he was gay.
The district court had rejected Morris’s petition
to proceed in forma pauperis, and had dismissed his complaint, finding failure to exhaust
administrative remedies and failure to state a
claim. The 5th Circuit panel found plenty of error, concluding that Morris was entitled to proceed IFP, had exhausted any administrative
remedies, and had at least stated an 8th
Amendment claim based on his allegations
concerning excessive force. As to the simple
discrimination claims, the court observed that
Morris failed to elucidate specific facts showing
he was treated differently from heterosexual inmates. (Evidently, lousy treatment is meted out
to one and all in the Texas prison system, regardless of sexual orientation....)
Iowa — In Lewis v. Heartland Inns of America, 2008 WL 4884895 (S.D.Iowa, Nov. 13,
2008), a female employee claimed to have encountered discrimination because her appearance did not accord with sex stereotypes indulged by her employer. District Judge Robert
W. Pratt ruled that an allegation of sex stereotyping, as such, as not sufficient to state a claim
under Title VII, without evidence that the employer’s use of sex stereotypes resulted in unfavorable treatment of the plaintiff in comparison
with male employees. “To make out a Title VII
disparate impact claim,” wrote Judge Pratt, “
the plaintiff must show that the treatment to
which she was subjected is such that it puts her
sex at a disadvantage compared to persons of
the opposite sex. A plaintiff may make a showing of discrimination by demonstrating that the
basis of the adverse employment action was because of her lack of conformance with a gender
stereotype, but there must also be an accompanying showing that the other sex is not so disadvantaged by similar gender stereotyping.” This
is a rather narrower approach to the use of sex
stereotyping theory under Title VII than we had
seen in other cases, especially those in which
protection was accorded to transgender plaintiffs.
Massachusetts — U.S. District Judge Patti B.
Saris has adopted the “well reasoned opinion”
of U.S. Magistrate Judge Dein, who recommended rejecting the motion by members of the
Massachusetts Parole Board to dismiss a suit
claiming that they allowed anti gay bias to tain
their decision denying parole to state inmate
Bruce Wilborn. Wilborn v. Walsh, 2008 WL
4822202 (D. Mass., Oct. 31, 2008). This was a
victory for Columbia University’s Sexuality and
Gender Law Clinic, which teamed up with Neal
E. Minahan, Jr., of Boston firm McDermott Will
& Emery in representing Wilborn. Wilborn al-
December 2008
leged based on comments by individual parole
board members and various ways in which the
board’s decision distorted the factual record
that anti gay bias played a role making the adverse parole decision in violation of the state
and federal constitutions. Although Magistrate
Dein recommended dismissing the state constitutional claims on 11th Amendment immunity grounds, the recommendation to allow Wilborn to pursue the federal due process and
equal protection claims won the endorsement
of Judge Saris. The defendants did not dispute
that Wilborn would have a claim if discrimination had occurred, but rather argued that his
factual allegations fell short in this respect, a
proposition with which Magistrate Judge Dein
disagreed, subjecting the allegations to detailed examination in a lengthy report and recommendation to the district court.
Minnesota — In Campbell v. Rock Tenn Company, 2008 WL 4951464 (D.Minn., Nov. 18,
2008), District Judge James M. Rosenbaum
granted summary judgment to the employer on
race and sex discrimination charges brought by
an African American lesbian employee who
worked in an almost all male workplace where
most of her co workers were white. Willie
Campbell claimed, among other things, to have
suffered harassment due to her race and sexual
orientation. The main problem with her case, to
judge by the court’s decision, was that all of the
harassing activity was attributable to co workers, and the company had a non discrimination
policy and took prompt action every time a harassing incident was drawn to their attention. In
order for a company to be liable for co worker
harassment, they have to be aware of the harassment and fail to take adequate steps in response to it. The court’s recitation of the factual
allegations indicated that after Campbell would
complain about a harassing incident, supervision would contact the employee involved and
the problem would not recur with that employee. The court also found that the company
had provided a satisfactory, credible non discriminatory reason to counter Campbell’s claim
that a demotion was discriminatory.
Pennsylvania — U.S. District Judge Baylson
granted summary judgment to the employer in a
same sex harassment case in Ogilvie v. Northern
Valley EMS, Inc., 2008 WL 4761717 (E.D.Pa.
Oct. 29, 2008), finding that although the male
plaintiff’s allegations about sexual advances by
a male supervisor were based on hearsay and,
in any event, did not amount to the pervasiveness or severity required to state an actionable
Title VII claim of sex discrimination.
Pennsylvania — In Dawn L. v. Greater Johnstown School District, 2008 WL 4963347
(W.D.Pa., Nov. 13, 2008), U.S. District Judge
Kim R. Gibson found that the school district
had failed to respond appropriately when the
parents of a young girl raised concerns that an
older girl had become sexually obsessed with
233
their daughter and initiated sexual conduct,
and then took various steps apparently retaliating against the parents and other family members as they persisted in seeking assistance
from the school to deal with this “improper” relationship.. The relationship began when the
daughter, who had been classified as “giftedF
but suffered from various psychological problems manifesting themselves in withdrawal and
communications difficulties was introduced to
a two year older friend of her sister. The friend
became attached to the daughter, and ultimately too attached, in the opinion of the parents, both of whom had significant involvement
as volunteers with the school district and
sought the assistance of school officials to prevent the sexual aspect of the relationship from
developing further. The court decided that
school officials had not taken the matter seriously enough, resulting in damages to the parents in the amount of $28,000. The lengthy
opinion by Judge Gibson consists mainly of an
extended factual narrative spanning several
years in minute detail, and premises liability on
Title IX of the Education Amendments Act, forbidding sex discrimination by schools that receive federal funding and also forbidding, according to judicial construction, retaliation
against individuals who complain about discriminatory conduct that violates Title IX.
A.S.L.
NY State Insurance Department Requires
Recognition of Foreign Same Sex Marriages
The New York State Insurance Department has
issued a Circular Letter to all insurance companies licensed to do business in New York State,
advising them that under current legal precedents they are required to recognize the marriages of New York resident same sex couples
that were formed in any jurisdiction that
authorizes same sex marriages, for purposes of
entitlement to coverage under insurance policies written in New York. Circular Letter No. 27
(2008), issued November 1, 2008.
The Circular Letter rests its authority on the
New York Appellate Division, Fourth Department, ruling on February 1, 2008, in the case of
Martinez v. Monroe Community College, 850
N.Y.S.2d 740, in which the court relied on traditional principles of comity to conclude that
New York State would recognize the Canadian
same sex marriage of a lesbian couple for purposes of enrollment in the defendant’s employee benefits program. Since the New York
Court of Appeals has not issued a decision on
this issue, and no other department of the Appellate Division has issued a contradictory
opinion (although some appeals of trial courts’
rulings on point are now pending), Martinez is a
statewide precedent for now.
What particularly triggers the new insurance
advisory is a portion of the Martinez decision in
234
which the court held that the college’s refusal to
enroll an employee’s same sex spouse would
violate the state Human Rights Law, which forbids employment discrimination on the basis of
sexual orientation. The court said that the community college, a public employer, would be
engaging in prohibited sexual orientation discrimination were it to exclude the employee’s
same sex spouse from its health insurance program.
What is missing from the Circular Letter,
however, is any discussion or acknowledgment
of the potential preemptive effect of the federal
Employee Retirement Security Act (ERISA),
which bars states from regulating private sector
employee benefits programs. The ERISA preemption provision does include a carve out for
state regulation of insurance companies. The
Insurance Department can require that insurance companies recognize same sex marriages
under its power to regulate the insurance business. But the Circular Letter also says that employers are required to recognize same sex marriages, without acknowledging any distinction
between the public and private sectors. While
the Insurance Department does have the power
to regulate insurers, it does not have any direct
authority to regulate employers, which are not
deemed to be insurance companies for purposes of the ERISA preemption carve out.
A private sector employer who purchases
coverage from an insurance company for his or
her employees could be affected by this ruling,
because the insurance companies will have to
include recognition of same sex spouses under
their policies, but a private sector employer
who “self insures” would not, for now, likely be
required to provide such coverage. If the Insurance Department receives a complaint from an
employee whose spouse was denied coverage
by a self insured private sector employer, and
the Department tries to enforce its ruling
through any kind of legal sanction, it is likely
that litigation would ensue and the court might
find that ERISA preempts the Department’s action. Of course, there is nothing in ERISA that
would prohibit a private sector employer who
self insures from extending such coverage voluntarily, and the availability of such coverage
from insurance companies is liable to result in
the extension of such coverage routinely by
many employers.
Self insurance is most common among larger
companies that operate in many states. There
was a wave of conversion from purchase of insurance to self insured plans back in the 1980s
when employers were seeking to escape rising
insurance company premiums and increasingly expensive State Insurance Department
coverage mandates that varied from state to
state. A main purpose of the preemption provision was to make it possible for large, multistate
employers to avoid the conflicting demands of
December 2008
state regulations and maintain uniformity company wide in their insurance practices.
Many self insured employers do hire insurance companies to administer their benefits
programs, but so long as the employer, not the
insurer, is responsible for funding the benefits,
the ERISA preemption provision bars state
regulation, as LGBT litigating groups discovered to their dismay when they sought to challenge limitations or exclusions of HIV related
coverage by self insured employer plans and
found that state civil rights agencies were powerless to act. Attempts to invoke a non discrimination provision within ERISA were also unsuccessful, with the Supreme Court declining
to review a federal appellate ruling that upheld
the decision by a Texas music company to place
a low lifetime cap on HIV related benefits
claims by its employees. Congress has never
acted to expand the ERISA non discrimination
provision to extend to such practices, and it is
likely that courts would find that the federal
Defense of Marriage Act gets in the way of federal courts construing ERISA to assist same sex
spouses in pursuing benefits claims. A.S.L.
Second Florida Trial Judge Voids Adoption Ban
For the second time in just a few months, a Florida trial judge has ruled that the state’s statutory ban against adoption of children by “a homosexual” is unconstitutional. Ruling on
November 25 on an adoption petition by Frank
Martin Gill, a North Miami man, to adopt half
brothers John and James, age 8 and 4, for whom
he has served as a foster parent together with
his partner for the past four years, Miami Dade
Circuit Judge Cindy S. Lederman held that the
statutory ban violates the equal protection requirement of the Florida constitution and directly contradicts the state’s articulated policy
of seeking “permanent placements” for children. In the Matter of the Adoption of John Doe
and James Doe, 2008 WL 5006172 (Fla. 11th
Dist. Cir. Ct., Nov. 25, 2008).
The ACLU of Florida and the ACLU LGBT
Rights Project represent Gill, including litigation team members Robert Rosenwald, James
Esseks, Leslie Cooper, and Shelby Day. The
children were represented by volunteer attorneys from Hilarie Bass and Ricardo Gonzalez
from Greenberg Traurig and Charles Auslander.
This Miami ruling followed an August 29 ruling from Key West by Circuit Judge David J.
Audlin, Jr., who also rejected the statutory ban
and approved an adoption by a gay petitioner.
For reasons that remain obscure, the state took
no action to appeal that ruling, but a news report on the Miami Herald website shortly after
the decision was released indicated that the
state planned to appeal Judge Lederman’s decision.
The appeal has everything to do with politics
and nothing to do with the merits of the case,
Lesbian/Gay Law Notes
since the appeal announcement came immediately upon the release of Judge Lederman’s 53
page opinion, when attorneys for the state could
not possibly have had time to carefully read and
analyze the ruling. “We respect the court’s decision,” said Assistant Attorney General Valerie Martin to the Miami Herald. “Based upon
the wishes of our client, the Department of
Children & Families, we will file an appeal.” In
other words, nothing the court could say would
sway the Department from its political mission
to defend the statutory ban. Thus, the state
agency charged with protecting the best interest of children exhibits its lack of concern with
those best interests.
Judge Lederman’s opinion carefully describes the situation confronted by young John
and James when they were first placed with Gill
and his partner. John, then four, was virtually
mute, totally devoted to looking after his infant
half brother and totally unable to trust any adult
after the neglectful care he had experienced.
Both children had medical problems for which
medicines had been prescribed but not administered by their neglectful parents, from whom
they had been taken by the state. Judge Lederman describes how both boys flourished under
the loving, firm guidance of Gill and his partner.
The men decided that only Gill would petition
to adopt, assuming that attempting a joint adoption in the face of Florida’s statute would be
doubly difficult.
The trial presented Judge Lederman with numerous experts, some testifying live and some
by affidavit. The state’s case seemed to be
based on arguing virtually every stereotype
about the lives and partnerships of gay people,
attempting to convince the court that gays are
depressive, suicidal, pedophiles, addicts,
prone to short life spans and a succession of
short relationships, all of which would present
adverse conditions for raising children. Of
course, to find an “expert” to present such testimony, they have to scrape the bottom of the barrel and come up with people whose credentials
end up being more theological than anything
else, relying on spurious studies inspired by
“faith” rather than facts.
The state’s primary expert was Dr. George
Rekers, identified as a Clinical Psychologist
and Behavioral Scientist from Miami, without
academic affiliation, who is an ordained Baptist
Minister. Rekers based his testimony heavily
on the discredited publications of the notorious
Dr. Paul Cameron and others of his ilk. At one
point, the judge characterized his testimony as
“contrary to science and decades of research in
child development,” and she concluded that
“Dr. Rekers’ testimony was far from a neutral
and unbiased recitation of the relevant scientific evidence. Dr. Rekers’ beliefs are motivated
by his strong ideological and theological convictions that are not consistent with the science.
Based on his testimony and demeanor at trial,
Lesbian/Gay Law Notes
the court can not consider his testimony to be
credible nor worthy of forming the basis of public policy.”
The state’s other expert, a Kansas State University associate professor named Walter
Schumm, fared little better, and actually helped
to make the petitioner’s case, testifying that a
categorical ban on gays adopting children, as
maintained in Florida, was not warranted by the
facts, and that adoption decisions should be
made on a case by case basis.
By contrast, Gill’s attorneys presented several experts holding distinguished academic
positions and relying on peer reviewed scientific publications, as well as experts with long
experience administering governmental child
welfare programs, all of whom agreed that gay
people are capable of making fine parents who
can raise physically and mentally healthy children. Judge Lederman’s factual findings completely refuted the state’s experts, concluding
that “it is clear that sexual orientation is not a
predictor of a person’s ability to parent. Sexual
orientation no more leads to psychiatric disorders, alcohol and substance abuse, relationship
instability, a lower life expectancy or sexual
disorders than race, gender, socioeconomic
class or any other demographic characteristic.”
She pointed out that there is now a consensus
among professionals in the fields of psychology
and child development, based on long term
studies involving thousands of children, that
parental sexual orientation is not relevant to a
person’s qualifications to be a good parent. “As
a result,” she wrote, “based on the robust nature of the evidence available in the field, this
Court is satisfied that the issue is so far beyond
dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.”
From this conclusion, Judge Lederman proceeded logically to the conclusion that a state
policy disqualifying prospective adoptive parents based on their sexual orientation was irrational and thus violated the constitutional guarantee of equal protection to both children and
prospective adoptive parents.
“A law such as the blanket ban on adoptions
by homosexuals infringes on the foster child’s
right to be free from undue restraint and to be
expeditiously placed in an adoptive home that
serves the child’s best permanency interests,”
she wrote. “Indeed, a law that subverts judicial
process and imposes on the court the burden of
taking action harmful to the child should be immediately suspect because the injury it imposes contradicts the legislative purpose and
constitutional basis of the child’s having been
taken into custody by the State in the first
place.”
“The Department argues [that the adoption
ban] is rationally related to Florida’s interest by
protecting children from the undesirable realities of the homosexual lifestyle. However, as
December 2008
thoroughly summarized in the Findings of
Fact section of this Final Judgment, the foregoing is,
frankly, false,” the judge asserted.
The judge specifically rejected all the justifications argued by the state, including the assertion that the state’s responsibility for the “morality” of children justified the ban, which was
clearly contradicted by the state’s willingness
to put children into a quasi permanent foster relationship with gay people.
“The Department’s position is that homosexuality is immoral,” Judge Lederman commented. “Yet, homosexuals may be lawful foster parents in Florida and care for our most
fragile children who have been abused, neglected and abandoned. As such, the exclusion
forbidding homosexuals to adopt children does
not further the public morality interest it seeks
to combat.... The contradiction between the
adoption and foster care statutes defeats the
public morality argument and is thus not rationally related to serving a governmental interest.”
The judge concluded that the statutory ban
“violates the Petitioner and the Children’s
equal
protection rights guaranteed by Article I,
Section 2 of the Florida Constitution without
satisfying a
rational basis. Moreover, the statutory exclusion defeats a child’s right to permanency as
provided by federal and state law pursuant to
the Adoption and Safe Families Act of 1997.”
She declared that the adoption of John and
James would be effective immediately, as both
the Guardian ad litem and the state workers
who had processed this case were agreed that
Gill was well qualified to be a parent, the only
obstacle to adoption being the now discredited
statute. A.S.L.
State Civil Litigation Notes
California — The L.A. County Board of Supervisors approved a settlement of a discrimination claim asserted by Deputy District Attorney
Michael Kraut, who claimed that colleagues
had targeted him for anti gay jokes and other
comments, and that the D.A.’s office retaliated
against him when he complained. According to
a Nov. 1 report in the Los Angeles Times, Kraut
will receive a $325,000 settlement.
California — Los Angeles County Superior
Court Judge Victoria Chaney has granted class
certification for a lawsuit on behalf of LGBT
residents of the state who were denied services
by eHarmony, an online “relationship site” that
uses detailed questionnaires to attempt to make
romantic matches between men and women but
refuses services to those seeking same sex partners. The plaintiffs contend that this violates
the state’s Unruh Act, which prohibits sexual
orientation discrimination by places of public
accommodation. A trial to determine whether
235
the act is violation is set for October 2009. (See
below for a report on the settlement of a similar
discrimination claim against eHarmony in N.J.,
as a result of which eHarmony will establish a
same sex matching service. Query whether that
may also dispose of the California case?) Los
Angeles Times, Nov. 21.
New Jersey — Upholding the superior court’s
grant of summary judgment to the employer in a
sex and sexual orientation employment discrimination case in Brunner v. Vertis, Inc., 2008
WL 4963509 (Nov. 24, 2008) (not reportred in
A.2d), the N.J. Appellate Division found that
the plaintiff, a lesbian, had not provided any
evidence to show that her sexual orientation
had anything to do with the adverse actions
from the company, for which there were job related explanations. Darleen Brunner had originally filed a complaint of sex discrimination,
only subsequently amending her complaint to
add sexual orientation. The court refused to
draw an inference that her sexual orientation
had anything to do with the problems she encountered in the workplace, noting that upon
the employer’s presentation of non discriminatory reasons for what happened, the burden was
the plaintiff to show pretext, evidence for which
was lacking.
New Jersey — The eHarmony on line dating
service will set up a service for same sex couples to avoid litigating a discrimination complaint with the state of New Jersey, according to
a report in Washington Internet Daily on Nov.
20. A gay applicant who was denied service
filed a complaint with the state’s civil rights
agency, which enforces the statutory ban on
sexual orientation discrimination by places of
public accommodation, a term broadly construed to take in all organizations that conduct
business with the public. According to the news
report, “New Jersey resident Eric McKinley
complained in 2005 that eHarmony was violating the state’s Law Against Discrimination.”
The state Division of Civil Rights issued a finding of probable cause against eHarmony, which
has “agreed to pay $50,000 to cover the state’s
administrative expenses and $5,000 to McKinley, who will get a year’s free CompatiblePartners.net membership.” CompatiblePartners.net is the new service eHarmony will
establish to serve clients seeking same sex
partners.
New York — The New York Law Journal reported on Nov. 26 that Monroe County officials
have decided not to take any further appeal of
the 4th Department’s February 1 ruling that the
Monroe Community College must recognize the
Canadian same sex marriage of a staff member
for purposes of their employee health benefits
plan. County officials had sought an immediate
appeal, but the Court of Appeals rejected it because a final order had not been issued by the
trial court on remand. Now, county officials say,
236
they accept the Appellate Division’s ruling as a
statewide precedent and will comply. A.S.L.
Criminal Litigation Notes
Federal Military — The U.S. Air Force Court of
Criminal Appeals upheld the court martial conviction of a male staff sergeant who was assigned to manage a dormitory and took advantage of his position to sexually molest drunken
airmen. In the curiously appropriately named
case of United States v. Forehand, 2008 WL
4898646 (Oct. 10, 2008) (not reported in M.J.),
Appellate Military Judge Jackson found that
the evidence presented at court martial, including testimony by each of the molested Air Force
personnel, provided an adequate record to support the conviction for housebreaking, indecent
assault, and engaging in conduct prejudicial to
good order and discipline or service discrediting conduct. The one issue that merited more
extended discussion was Sgt. Forehand’s contention that his military defense lawyer provided ineffective assistance of counsel by failing to voir dire the military jury on attitudes
towards homosexuality. Forehand alleged that
counsel failed to consult with him about this in
advance of trial, but defense counsel filed an affidavit maintaining that he had consulted with
Forehand, who had acquiesced in the decision
to avoid the subject. Despite this factual dispute, the appellate panel decided that no hearing was required to resolve the disparity, as it
resolved the issue against Forehand in any
event. Judge Jackson observed that the issue of
voir dire strategy was one solely confided to defense counsel, that if this questioning was so
important to Forehand, he should have protested at the trial, and, perhaps most significantly, given the trial testimony, it was not likely
that asking such questions would have affected
the result of the case. “The test for prejudice on
a claim of ineffective assistance of counsel is
whether there is a reasonable probability that,
but for counsel’s unprofessional errors, the result o the proceeding would have been different,” wrote the court. “On this point, the appellant has fallen markedly short. Rather than
offer facts that establish prejudice, the appellant offers conjecture. Though stated repeatedly in his affidavit, such hardly qualifies as
evidence of prejudice. There is simply no evidence that the members found the appellant
guilty and imposed the sentence they imposed
because they believed the appellant was homosexual. Nor is there evidence that the members
were biased against homosexuals.” The panel
upheld the sentencing to a bad conduct discharged, five years confinement, a reduction in
grade and a reprimand. (The convening authority had reduced the sentence recommended by
the jury of six years.)
West Virginia — In State v. Shingleton, 2008
WL 4966482 (Nov. 19, 2008), the West Vir-
December 2008
ginia Supreme Court of Appeals rejected an appeal by Robert Lee Shingleton on his conviction for malicious assault, a felony. Shingleton
picked up a gay man in a bar, took him home,
then claimed self defense in response to sexual
advances justified his vicious beating of the gay
man, which rendered the man unconscious and
put him in the hospital with serious injuries.
The trial judge decided, based on the evidence
presented, to reject Shingleton’s demand that
the jury be instructed on self defense, and the
Supreme Court of Appeals, in turn, rejected
Shingleton’s contention that this was erroneous.
Wrote the per curiam court, “Here, according to
the evidence before the jury, when the two men
entered Ayers’ apartment, Ayers turned on the
television, prepared some drinks and sat on the
couch with the appellant. Ayers testified that, at
that point, he put his hand on top of the appellant’s leg which caused the appellant to become
nervous and upset. Ayers attempted no further
physical contact. Ayers stated that he then offered the appellant $20 to leave the premises.
Protesting that $20 was not enough, the appellant struck Ayers on the left side of the face rendering him unconscious. According to Ayers,
he was, therefore, unable to determine how
many times the appellant struck him. When
Ayers awoke, the appellant was gone. Ultimately, an ambulance transported Ayers to the
hospital.” Given this evidence, as well as evidence that Ayers and Shingleton had both been
drinking, but that Ayers was more drunk than
Shingleton, the Supreme Court found that the
trial judge had not abused his discretion by refusing the self defense charge. A.S.L.
Legislative Notes
Georgia — The city of Doraville has added gender identity to its municipal non discrimination
policy, providing protection for transgender
workers, along the lines previously adopted in
Atlanta and Decatur. City officials said they
were not aware of any transgender employees,
but responded to a request to adopt the policy in
the wake of a federal lawsuit by a transgender
woman who claims she was fired from a staff position in the state legislature after announcing
her decision to transition from male to female
gender. Atlanta Constitution, Nov. 21.
Utah — A Senate legislative committee has
approved on a 10 4 vote a proposal to allow financial dependents (including same sex partners) to sue for wrongful death. Such actions are
restricted under current law to spouses and
other close legal relatives. The measure was
proposed by Senator Scott McCoy, who is hoping to move a series of bills in the current session that are on the agenda of Equality Utah, the
state’s LGBT political organization. Since Utah
is the home state of the influential Mormon
Church, a committed opponent of LGBT right,
Lesbian/Gay Law Notes
strong opposition was voiced, with prognostications that the measure was an opening to eventual same sex marriage. McCoy said, “I bent
over backwards to make sure the bill did not offend the state’s” ban on same sex marriage. Salt
Lake Tribune, Nov. 20.
Vermont — It was reported that State Senator
John Campbell would introduce a same sex
marriage bill in the legislature, but that Governor Jim Davis was opposed to such a measure,
suggesting it was probably dead on arrival.
Campbell was hoping to build on the momentum of Massachusetts and Connecticut, and especially on the strongly worded Connecticut
decision holding that civil unions were not sufficient to accord constitutional equality to gay
couples. A.S.L.
Law & Society Notes; Election Notes
Study on Sexual Orientation Discrimination
Claims — The Williams Institute of UCLA Law
School has published a study titled “Evidence
of Employment Discrimination on the Basis of
Sexual Orientation and Gender Identity: Complaints Filed with State Enforcement Agencies
1999 2007). The study focused on states that
have outlawed sexual orientation (and, in some
cases gender identity) discrimination, comparing the level and rate of discrimination claims
to filings concerning sex or race discrimination.
The overall finding was that sexuality discrimination claims occur at a slightly lower rate than
claims of sex or race discrimination, in terms of
the number of complaints filed per 10,000
population in the jurisdiction. The national rate
from among the 20 states and D.C. was under 5
per 10,000, with sex discrimination claims at
5.4 per 10,000 and race discrimination claims
at 6.5 per 10,000. So much for the argument
made by opponents of gay rights legislation that
enactment would open the floodgates to an extraordinary number of complaints. The more
restrained result could have been predicted
from the fact that sexual minorities make up
only a small percentage of the overall population. So far, data is insufficient to calculate such
rates for gender identity discrimination claims,
partly because the laws in most jurisdictions
are too new to have generated significant data,
and the proportion of the population that is
transsexual is so small that what data there is
barely registers on such a frequency scale.
Military Policy — In the wake of the Democratic sweep in the national elections, Servicemembers Legal Defense Network scored a media coup with the roll out of a joint statement by
more than 100 retired generals and admirals on
November 17 calling for the repeal of the current statutory policy commonly known as “don’t
ask, don’t tell,” and its replacement with a policy banning sexual orientation discrimination
in the U.S. Armed Forces. According to the joint
statement, “As is the case with Great Britain,
Lesbian/Gay Law Notes
Israel, and other nations that allow gays and
lesbians to serve openly, our service members
are professionals who are able to work together
effectively despite differences in race, gender,
religion, and sexuality.” Public opinion polls
show widespread public support for allowing
lesbians and gay men to serve openly in the
military, and the Obama Campaign had included repeal of DADT as part of its gay rights
platform. However, there were signals emanating from the transition team that DADT would
not be on the agenda for immediate legislative
action, representing President Elect Obama’s
view that the most effective way to achieve this
reform was to work with military leaders on a
proposal that would come to Congress jointly
from the Pentagon and the White House, and to
delay expending political capital on this issue
until after addressing the immediate economic
issues that will confront the new Administration
when it takes office in January. In short, as with
other items on the LGBT agenda, including enactment of an inclusive ENDA, repeal of
DOMA, passage of legislation recognizing
same sex partners for immigration purposes
and fixing inequalities in the tax laws, the
Obama transition was seeking patience from
the community.
Colorado — Openly gay businessman Jared
Polis was elected to Congress, where he will
join Barney Frank and Tammy Baldwin as the
only “out” members in a body the House of
Representatives rumored to be full of closet
cases. In any event, since Frank did not “come
out” until several terms into his congressional
service, Polis becomes the first openly gay male
candidate to be elected to a first term in the
House. Baldwin was openly lesbian when she
first ran. ••• The LGBT Victory Fund announced that 70% of its endorsed openly gay
candidates had won their contests on November 4.
Iowa — As the December 9 Iowa Supreme
Court argument in the pending same sex marriage case, Varnum v. Brien, approaches, a research team from the University of Iowa reports
that a majority of the state’s residents believe
that same sex couples should be able to obtain
legal recognition for their relationships, according to a Nov. 25 news report in U.S. Federal
News, an on line service. However, only 28% of
respondents believe that the relationship
should be marriage. The survey did find, however, that if the court ruled in favor of marriage,
the percentage of Iowans who believe such a
decision should be allowed to stand, and not be
overruled by a constitutional amendment, was
35%. Thus, a favorable Supreme Court ruling
for same sex marriage would, in the eyes of survey respondents, increase support for same sex
marriage in Iowa. However, the survey results
can also be construed to show that a majority of
the public in Iowa would disapprove of such a
ruling and would hope that it was overturned.
December 2008
Hamtramck, Michigan — Voters approved a
ballot measure on Nov. 4 that overturns a recently enacted city council ordinance that
would have barred discrimination in employment, housing, and public accommodations on
the basis of age, race, religion, weight, sexual
orientation, and a number of other characteristics. The measure was passed by the city council in June, and immediately attacked by a
group of religious leaders, who led the drive to
place a measure on the ballot, arguing that the
measure violated the religious freedom of citizens. The vote was reportedly 2,903 2333.
Palm Beach, Florida — The County School
Board in Palm Beach County voted on Nov. 6 to
include sexual orientation and gender expression and/or identity as part of a formal policy to
protect students against bullying and harassment. The Board responded to a request for action from the Palm Beach County Human
Rights Council, which issued a press release on
Nov. 5 hailing the action. The Council had
pointed out that the School Board’s policies
were not consistent with the non discrimination
policies that had been adopted by the county
government.
Oregon — Openly lesbian Kate Brown was
elected Secretary of State of Oregon, the first
openly LGBT person to win that position in any
state. The Secretary of State is the second highest ranking elected official in the state.
Silverton, Oregon — Stu Rasmussen made
history in being elected mayor of Silverton,
Oregon, by virtue of being the first openly transgender person to be elected mayor of an American city, according to press reports following
the Nov. 4 election. The Oregonian reported on
Nov. 7 was Rasmussen had actually served as
mayor before, but the current run for office was
the first since going public about the gender
identity issue. Rasmussen was well known as
the local movie theater operator, and had previously served on the city council and as mayor,
but recently decided to challenge the incumbent mayor in a feminine persona. Or, as Rasmussen told The Oregonian, “I am a dude. I am
a heterosexual male who appears to be a female. What I’ve done is blackmail proof myself.”
Tennessee — The murder of a transgender
woman in Memphis has revived scrutiny of police actions last February, when a videotape of
the same woman being beaten by police officers
while in custody led to departmental charges
against two officers, and criminal charges have
since been filed against one of the officers. The
Memphis Police Department had reacted to
public exposure of the February incident (the
video circulated widely on Youtube.com) by
dismissing the officers, overhauling some of its
procedures for dealing with arrestees awaiting
booking, and beginning sensitivity training
about sexual minorities for the entire police
force. According to news reports, Duanna John-
237
son’s estate may pursue a lawsuit against the
city premised on the earlier incident, while the
Police Department sought to identify her killers. New York Times, Nov. 18.
King County, Washington — Voters in King
County voted by 73 percent to 27 percent to
amend their county charter to add disability,
sexual orientation, and gender identity or expression to their human rights law. Gay City
News Nov. 6.
Washington State — Expeditors International, a 12,000 employee logistics firm based
in Seattle, announced that it was adopting a
policy banning sexual orientation discrimination by the company, even though a shareholder
proposal seeking such a policy had failed to win
a majority at the annual meeting. The company
decided that if abstentions were excluded from
the tally, the measure had passed among shares
that were voted. Although the proposal was
merely advisory, the management decided to
take the shareholders’ advice. The Seattle
Pride Foundation played a role in the introduction of the resolution and subsequent lobbying
of the corporation’s board to enact the policy.
Seattle Times, Nov. 20.
Other election highlights — In New York, it
appeared that Democrats would control the
State Senate for the first time since the birth of
the modern gay rights movement, creating hope
for progress on the legislative agenda articulated by the state’s gay lobbying group, Empire
State Pride Agenda. Openly LGBT incumbents
won re election to the state senate and assembly
by substantial margins. ••• Thomas Robichaux and Seth Bloom, openly gay men, are the
first openly gay elected officials in Louisiana.
They were elected to the Orleans Parish School
Board during the primary elections in October.
••• The Lesbian/Gay Victory Fund website
provides an extensive list of openly LGBT candidates who were elected on Nov. 4. A.S.L.
Australia Creates Federal Legal Status for Same
Sex Couples
The Australian Parliament has passed three
major pieces of legislation affecting rights and
obligations for people in same sex relationships. The first puts same sex relationships on
the same footing as heterosexual de facto relationships under federal family law. Importantly,
this gives same sex partners access to the federal Family Court to settle custody and property
disputes following on breakdown of relationships. Previously, same sex partners had to go to
state supreme courts under state de facto relationship legislation where it was available, or
under the law of equity. The legislation became
possible after the states referred their constitutional powers to legislate for de facto couples to
the Commonwealth.
The second bill gives same sex partners access to their partners’ superannuation (retire-
238
ment fund) in the same way heterosexual
spouses and dependents can. This legislation
has been the subject of campaign work by the
LGBT communities for many years and after
the previous conservative government reneged
on a promise to make the changes.
The third bill amends over 100 pieces of federal legislation to put same sex partners and
their children on the same footing as heterosexuals. The major areas affected will be in
workplace regulation, health care benefits,
worker’s compensation and social security.
Another area will be federal judges’ pensions. Although he reaches the constitutional
age of retirement in March 2009, it is thought
that Michael Kirby, the openly gay judge on the
High Court of Australia, has been waiting for
the amendment so that he can retire to allow a
new judge to be appointed staring in the new
year. Now he can retire, secure in the knowledge that his partner can inherit his pension entitlements like the heterosexual spouses of
other judges. The Judicial Conference of Australia publicly advocated for the amendment to
be made.
The spotlight is now turning to the ways in
which entitlement to social security benefits
will be determined. It is estimated that, in a
country with a population of around 20 million,
about 11,000 people receiving social security
or family assistance benefits will come forward
to declare they are in a same sex relationship.
There are stories in the gay media about the impact of the changes on poor same sex families
and in the straight media about elderly sisters
being asked to prove they are not in a same sex
relationship.
The legislation implements election promises by the new federal Labor government. In its
scope, the omnibus legislation amendment bill
went a lot further than the recommendations of
the Human Rights Commission in a report on
the unfair legislative position for same sex couples it released in 2007. The legislation passed
the Senate even though Labor does not have a
majority after the largest conservative opposition party changed its leader to a man whose
Sydney electorate contains the highest proportion of gay men and lesbians in the country.
December 2008
However, gay marriage looks a very long way
off in Australia. Labor has joined the conservative parties in rejecting same sex marriage. Federal Labor policy is to encourage the states and
territories to set up registers of same sex relationships the state of Tasmania has one in its
Relationships Act 2003 but not even all state
and territory Labor governments agree. The
Australian Capital Territory (like DC) legislated for civil unions in 2006 but the legislation
was disallowed by the then conservative federal
government. Commencing in May 2008, the
ACT passed its Civil Partnerships Act which allows couples to register their relationship irrespective of their gender.
The new federal legislation can be accessed
at ttp://www.comlaw.gov.au/. David Buchanan
SC
Other International Notes
Burundi — On Nov. 21, the National Assembly
approved a law that would make same sex acts
punishable as a crime. Burundi has been unusual among African states in not having specific anti gay legislation, although police had
discretion to act under more vaguely worded
laws. The Senate and the President appeared
likely to go along with the National Assembly
and approve the law, although efforts were under way to encourage protests from around the
world.
Nepal — The country’s highest court has issued a final ruling on a writ petition from a
group of LGBT rights organizations, directing
the Nepal government to ensure equal rights
and non discrimination for LGBT people. The
court’s judgment, issued on Nov. 17, affirms
that LGBTI people are “natural persons” entitled to all human and civil rights. There are
hopes that this will result in the inclusion of
sexual orientation and gender identity as prohibited grounds of discrimination in a new constitution being drafted for the country. At the
least, it is hoped, laws banning sexual orientation might ensue. PinkNews.co.uk.
United Kingdom — The U.K. Defence Ministry paid 3.7 million pounds in compensation
claims to 57 individuals who had been sepa-
Lesbian/Gay Law Notes
rated from the service for being gay, according
to an announcement released November 6.
This followed on earlier decisions in 2005 and
2006 to pay out 300,000 pounds to eight gay
people.
United Kingdom — An Employment Tribunal in Leeds awarded either 186,000 or
187,000 pounds (press reports differed on the
amount) in damages to Kerry Fletcher, a lesbian who alleged that she was subjected to severe sexual harassment by a male officer while
serving in the British Army’s Royal Artillery at
Yorkshire. The Tribunal found that Fletcher’s
life had been made “a misery” by repeated unwanted sexual advances from a male sergeant
and other male members of the company in
which she served. In its judgment, the Tribunal
stated: “This is as severe a case of victimisation
following an allegation of sexual harassment as
one could see in an employment tribunal.”
Daily Record (Glasgow), Nov. 27. The conservative press sought to whip up controversy by
seeking comment from a veterans group, which
responded in kind by characterizing the award
as “obscene” in comparison to the compensation paid wounded veterans. Daily Star, Express, Evening Standard, Nov. 26 & 27.
United Kingdom — The Norfolk police force
has dismissed constable Graham Cogman for
“behaviour well below what we expect,” according to Deputy Chief Constable Ian Learmonth. Cogman transmitted anti gay email
messages to colleagues, including Biblical
quotations and information about organiztions
promising to convert homosexuals to heterosexuality. Daily Star, Nov. 27. A.S.L.
Professional Notes
Karen Burstein, who ran for New York State Attorney General as the firstly openly gay candidate for a statewide office in New York and had
previously served as a state trial judge, has
been appointed Counsel to the Governor by
Gov. David Paterson. Although Burstein was
not elected A.G., she was the first openly gay
candidate in New York to win statewide nomination by a major party in a contested primary.
A.S.L.
AIDS & RELATED LEGAL NOTES
Alabama Federal Court Rejects HIV+ Inmate’s
Constitutional and Statutory Claims
In HIV+ federal inmate who was temporarily
housed in a county jail suffered summary judgment and dismissal of his claims that the jail
had imposed conditions during his state that effectively communicated to other inmates that
he was HIV+ in violation of his constitutional
and statutory rights. In Green v. Roberts, 2008
WL 4767471 (M.D. Alabama, Oct. 29, 2008),
District Judge W. Keith Watkins adopted in full
the recommendations of Magistrate Judge Wallace Capel, Jr., to grant summary judgment to
the warden of the county jail and to dismiss
Green’s suit, taxing against him the costs of the
proceeding.
Green alleged that upon arrival at the Elmore
County Jail, he was clothed in red scrubs rather
than the orange scrubs worn by other inmates,
served his mails on a specially marked tray with
disposable utensils, placed in a single cell
rather than a cell with a roommate, and otherwise treated in a way that signaled to other inmates that he had AIDS. (Green alleges that he
has “full blown AIDS,” not just HIV infection.)
Responding to Green’s claims, the defendant
indicated that they use color coded scrubs to
identify whether inmates are federal or state inmates, and that Green’s red scrubs had nothing
to do with him having AIDS. The defendant admitted that specially marked trays and disposable utensils are used to serve meals to inmates
Lesbian/Gay Law Notes
with infectious diseases, but explained this as
necessary due to the fears of other inmates that
they might catch an infectious condition if they
used utensils and trays that had previously
been used by inmates with AIDS. The magistrate found that this provided a legitimate penological justification for the practice. The
court also found that the 11th Circuit had already rejected constitutional challenges under
the 8th Amendment to segregation of inmates
with AIDS, and that Green’s Americans with
Disabilities Act claims failed because he had
not been excluded from any prison program or
service by virtue of his HIV status. The court
also expressed skepticism about the application of the ADA to this case, finding that Green
had not alleged facts necessary to establish that
he was a qualified individual with a disability.
Although HIV infection is an impairment, the
court rejected the contention, under existing
statutory language (prior to this summer’s ADA
amendments), that an HIV+ individual could
be treated as a persons with a disability under
the statute without specific allegations of major
life activities that had been impaired by their
infection. A.S.L.
Kentucky High Court Upholds HIV Evidence in
Penalty Phase of Prosecution
In a case of first impression, the Kentucky Supreme Court ruled that the trial court did not err
in allowing testimony during the penalty phase
of a rape/sodomy trial that the defendant was
HIV+, even though there is no evidence that
the victim was infected by the defendant. Torrence v. Commonwealth of Kentucky, 2008 WL
4691691 (Oct. 23, 2008) (not reported in
S.W.3d).
“After a night of revelry and drinking with
Torrence and others,” wrote the court per curiam, “K.K. claimed Torrence raped and
sodomized her.” Although Torrence initially denied any sexual contact with K.K., he ultimately conceded the sex and claimed it was
consensual, but the jury believed K.K., entering first degree rape and sodomy convictions
and recommended the maximum sentence for
each offense, 20 years, to be served consecutively. Among his other objections on appeal,
Torrence objected to introduction of his HIV+
status in the penalty phase.
The court cited a Kentucky statute that permits the prosecutor to offer during the sentencing phase evidence of “the impact of the crime
upon the victim... including a description of the
nature and extent of any physical, psychological, or financial harm suffered by the victim.”
The prosecutor introduced evidence that K.K.
had subsequently become aware of Torrence’s
HIV+ status and “had taken medication to
prevent herself from contracting HIV. Furthermore, K.K. testified that her life had been negatively affected to the extent that she feared she
December 2008
would contract HIV; and she believed her family had begun treating her differently.”
The court found this evidence relevant to the
issue of harm to the victim, rejecting Torrence’s
contention that the prejudice to him outweighed any probative value. “We agree with
Torrence that the HIV evidence may have
caused the jury to take a more dim view of him,”
wrote the court, “but the evidence regarding
the physical and emotional trauma K.K. suffered from Torrence’s HIV positive status appears to us to be precisely the type of evidence
that KRS 532.055(2)(a)7 was designed to
cover.” A.S.L.
AIDS Litigation Notes
5th Circuit — A panel of the U.S. Court of Appeals for the 5th Circuit ruled on November 5,
that the district court had appropriately granted
summary judgment on a retaliation claim
brought under the Americans with Disabilities
Act by a gay HIV+ former employee who was
discharged after he had complained about a fellow employee disclosing the plaintiff’s HIV
status to other employees. St. John v. Sirius Solutions, LLP, 2008 WL 4808709 (Not officially
reported). The court found that a retaliation
claim under the ADA must involve a claim that
an employee was discharged for opposing an
unlawful practice under the ADA. While it is
unlawful under the ADA for an employer to disclose confidential medical information about
an employee, such disclosures by co workers in
whom an employee has confided such information is not a violation of the statute. The employer had cited deficiencies in the plaintiff’s
work as the reason for his discharge, but that
was not really relevant to disposition of the retaliation claim, since the court found that the
plaintiff’s complaints to management did not
“oppose an employment practice made unlawful by the ADA, and thus they were not protected activity.” Thus, plaintiff failed to allege a
prima facie case.
California — The Los Angeles Times reported on Nov. 25 that a California jury has
ruled that a man who had infected his ex wife
with HIV should pay her damages of $12.5 million. The Los Angeles Superior Court jury in the
case of Bridget B. v. John B. announced its verdict on Nov. 21, culminating a six year legal
battle that had included a state supreme court
ruling in 2006 that tort liable could be imposed
on a person who knows he is HIV+ and does
not disclose this to a sexual partner. Superior
Court Judge Rolf M. Treu had rendered a tentative ruling, finding that John B. acted with fraud
and malice in conducting his sexual relationship with Bridget, setting up the jury award on
damages. Of course, it is likely that John B. will
seek to have the damages reduced on appeal.
New York — U.S. District Judge Charles J.
Siragusa found in Gonzalez v. Borowsky, 2008
239
WL 4758703 (W.D.N.Y., Oct. 27, 2008), that
an HIV+ inmate had raised a triable 8th
Amendment claim regarding deprivation of
medication against prison officials at Attica
State Prison. Gonzalez was transferred to Attica
on July 30, 2003, aftering doing time at Southport Correctional Facility, where he was receiving HIV treatment but had a dispute with staff
about circumstances under which his blood
was being drawn for testing. There are different
views about what he said and did at Attica regarding the blood testing issue. He alleges numerous substantial interruptions in his HIV
medication, as well as differences with his doctor about the medical regime. The response of
the defendants is to argue that his life was not in
danger and he was not rapidly deteriorating.
The 8th Amendment standard is “deliberate indifference” to a “serious medical condition,”
not medical malpractice. Without expressing
any opinion on the ultimate merits, Judge Siragusa found the 8th Amendment claim to be triable and rejected defendants’ summary judgment motion. (Siragusa also rejected a
summary judgment motion on Gonzalez’s excessive force claim, concerning an incident
when he claims to have been the victim of a
physical assault by prison personnel.) A.S.L.
Social Security Disability Cases
Appeals by HIV+ individuals of denial of Social Security Disability Benefits are intensely
fact specific cases. It has long been accepted
within the Social Security System that HIV infection is a severe impairment, but the question
confronted by Social Security Judges in these
cases is whether the impairment is so disabling
as to disqualify the applicant from employment
in jobs available in the national economy. That
determination is made on the basis of the individual’s actual physical condition, as reflected
in medical records presented in evidence. Factual disputes frequently stem from differences
between what individuals may claim about
their health status, and what is reflected in
medical records introduced in evidence. The
resulting ALJ and District Court decisions tend
to be long and fact intensive. We have been reporting on these cases from time to time, but
given the fact specific nature of the cases and
the lack, in most cases, of any doctrinal development of significance, in future we expect just
to list new decisions rather than to go into extensive discussion of them, indicating the
benefits claim was denied. We will go into more
detail in cases where courts overturn denials of
benefits, to assist practitioners in determining
what kinds of evidence and argument have produced success in this forum.
In Crawley v. Astrue, 2008 WL 4790111 (D.
Nev., Oct. 24, 2008), District Judge Robert C.
Jones denied a motion to remand for further
240
consideration an ALJ decision denying disability benefits to an HIV+ plaintiff.
In McNeil v. Astrue, 2008 WL 4822510
(W.D.Tex., Nov. 3, 2008), U.S. Magistrate Judge
Nancy Stein Nowak recommended that U.S.
District Judge Xavier Rodriguez approve the
Commissioner’s decision to deny disability
benefits to an HIV+ plaintiff. A.S.L.
International AIDS Notes
Scotland — The Scottish National Blood Transfusion Service rejected a proposal to abandon
its categorical ban on gay men as blood donors.
The petition to lift the ban had cited actions by
December 2008
France, Italy and Spain to end a categorical
ban, but the blood service told the Scottish Parliament that it was not discriminating, just recognizing behavior risks, relying on statistics
showing that the overwhelming majority of new
HIV infections reported in Scotland are among
gay men. BBC News, Nov. 4, 2008.
South Africa — A Harvard University research team concluded that the failure of
former South African President Mbeki to take a
rational approach to the HIV epidemic in his
country may have been responsible for up to
365,000 unnecessary deaths. Early in his administration, Mbeki was won over to the position of HIV denialists, who claimed that the vi-
Lesbian/Gay Law Notes
rus was not the cause of AIDS and that anti
retroviral medications are ineffective against
AIDS and poisonous. As a result of these beliefs, and the appointment of HIV denialists to
key public health positions, Mbeki’s administration refrained from the actions that proved
successful in some neighboring countries, including Botswana, in combating the epidemic
and providing non fatal outcomes for large
numbers of persons put into treatment. Only after the South African Supreme Court ruled
against the government on AIDS treatment issues did things begin to change, and the post
Mbeki regime seems committed to sharply
stepping up access to anti retroviral treatment
and adopting pragmatic HIV prevention strategies. New York Times, Nov. 26. A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
Conferences Forthcoming
Several major conferences scheduled for 2009
will give prominent attention to LGBT issues.
The International Lesbian and Gay Law Association conference, “the Global Arc of Justice:
Sexual Orientation Law Around the World” will
be held in Los Angeles, March 11 14. The
deadline for proposing speakers and workshops
was December 1. For information, see
www.ilglaw.org. ••• The Second European
Conference on Multidimensional Equality Law
will be held in Leeds, U.K., on March 22 23. For
information,
see
www.law.leeds.ac.uk/LeedsLaw/GenericPage.
a s p x ? I D = 3 6 8 & T abID=4&MenuID=41&SubMenuID=182.
••• An international conference on LGBT human rights will be held as part of the World Out
Games in Copenhagen on July 2 August 2,
2009. For information, see www.copenhagen2009.org.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Appell, Annette R., The Endurance of Biological Connection: Heteronormativity, Same Sex
Parenting and the Lessons of Adoption, 22 BYU
J. Pub. L. 289 (2008).
Bergstedt, A. Spencer, Estate Planning and
the Transgender Client, 30 West. N. Eng. L.
Rev. 675 (2008).
Berhorst, Jennifer, Unmarried Cohabitating
Couples: A Proposal for Inheritance Rights Under Missouri Law, 76 UMKC L. Rev. 1131
(Summer 2008).
Bilford, Brian J., Harper’s Bazaar: The Marketplace of Ideas and Hate Speech in Schools, 4
Stan. J. Civ. Rts. & Civ. Liberties 447 (Oct.
2008) (re Harper v. Poway case of the anti gay t
shirts).
Black, Stephen T., Same Sex Marriage and
Taxes, 22 BYU J. Pub. L. 327 (2008).
Bouchard, Aimee, & Kim Zadworny, Growing Old Together: Estate Planning Concerns for
the Aging Same Sex Couple, 30 West. N. Eng. L.
Rev. 713 (2008).
Crozier, Patience, Nuts and Bolts: Estate
Planning and Family Law Considerations for
Same Sex Families, 30 West. N. Eng. L. Rev.
751 (2008).
Hernandez Truyol, Berta Esperanza, The
Gender Bend: Culture, Sex, and Sexuality A
LatCritical Human Rights Map of Latina/o
Border Crossings, 83 Indiana L.J. 1283 (Fall
2008).
Higdon, Michael J., Queer Teens and Legislative Bullies: The Cruel and Invidious Discrimination Behind Heterosexist Statutory Rape
Laws, 42 U.C. Davis L. Rev. 195 (Nov. 2008).
Iganski, P., Criminal Law and the Routine
Activity of Hate Crime’, 29 Liverpool L. Rev. 1
(April 2008).
Kaplan, M.B., Hate Crime and the Privatization of Political Responsibility: Protecting
Queer Citizens in the United States?, 29 Liverpool L. Rev. 37 (April 2008).
Levi, Jennifer, Foreward to Symposium: Issues in Estate Planning for Same Sex and
Transgender Couples, 30 West. N. Eng. L. Rev.
671 (2008).
Lifshitz, Shahar, A Potential Lesson from the
Israeli Experience for the American Same Sex
Marriage Debate, 22 BYU J. Pub. L. 359
(2008).
Markowitz, Stephanie, Change of Sex Designation on Transsexuals’ Birth Certificates: Public Policy and Equal Protection, 14 Cardozo J.L.
& Gender 705 (2008).
Messerly, John T., Roommate Wanted: The
Right to Choice in Shared Living, 93 Iowa L.
Rev. 1949 (July 2008).
Milner, J., Working with People Who Are Violent to Their Partners: A Safety Building Approach, 29 Liverpool L. Rev. 67 (April 2008).
Note, Setting Their Record Straight: Granting Wrongly Branded Individuals Relief From
Sex Offender Registration, 41 Colum. J. L. &
Soc. Prob. 479 (Summer 2008).
Ohms, C., Perpetrators of Violence and Abuse
in Lesbian Partnerships, 29 Liverpool L. Rev.
81 (April 2008).
Parga, Cylinda C., Legal and Scientific Issues
Surrounding Victim Recantation in Child Sexual Abuse Cases, 24 Georgia St. U. L. Rev. 779
(Spring 2008).
Perry, J., The Perils’ of an Identity Politics Approach to the Legal Recognition of Harm, 29
Liverpool L. Rev. 19 (April 2008).
Rao, Neomi, On the Use and Abuse of Dignity
in Constitutional Law, 14 Colum. J. Eur. L. 201
(Spring 2008).
Robinson, J.A., An Overview of Recent Legal
Developments in South Africa with Regard to the
Position of Lesbigay Parents and Children with
Specific Reference to the Adoption of Children,
22 BYU J. Pub. L. 383 (2008).
Smith, Bradley S., and J.A. Robinson, The
South African Civil Union Act 17 of 2006: A
Good Example of the Dangers of Rushing the
Legislative Process, 22 BYU J. Pub. L. 419
(2008).
Smith, Stephen F., Jail for Juvenile Child Pornographers?: A Reply to Professor Leary, 15 Va.
J. Soc. Pol’y & L. 505 (Spring 2008).
Stern, Craig A., and Gregory M. Jones, The
Coherence of Natural Inalienable Rights, 76
UMKC L. Rev. 939 (Summer 2008).
Thompson, Nicole S., Due Process Problems
Caused by Large Disparities in Grants of Asylum: Will New Department of Justice Recommendations Solve the Problem?, 22 Emory Int’l
L. Rev. 385 (2008).
Walker, Cort I., The Defense of Marriage Act
As An Efficacious Expression of Public Policy:
Towards a Resolution of Miller v. Jenkins and
the Emerging Conflict Between States Over
Same Sex Parenting, 20 Regent U. L. Rev. 363
(2007 2008) (Student Note from Christian Fundamentalist Law School).
Lesbian/Gay Law Notes
Wardle, Lynn D., A Response to the “Conservative Case” for Same Sex Marriage: Same Sex
Marriage and “the Tragedy of the Commons”,
22 BYU J. Pub. L. 441 (2008).
Wilson, Robin Fretwell, A Matter of Conviction: Moral Clashes over Same Sex Adoption, 22
BYU J. Pub. L. 475 (2008).
Zouharyk, Alexis, The Elephant in the Classroom: A Proposed Framework for Applying
Viewpoing Neutrality to Student Speech in the
Secondary School Setting, 83 Notre Dame L.
Rev. 2227 (July 2008).
Specially Noted:
Vol. 22, No. 2, of the BYU Journal of Public Law
contained a symposium on same sex marriage
and parenting, mainly from the anti perspective, as would be expected from the source. Individual articles are noted above.
December 2008
AIDS & RELATED LEGAL ISSUES:
Kalagas, Alexis, Healthy Mind, Healthy Body:
SARS, HIV/AIDS and the Justifiability of Restrictions on Media Freedom in the People’s Republic of China, 13 Australian J. Hum. Rts., No.
2: 99 (2008).
Mukherjee, Gourav N., Improving the Pharmaceutical Industry: Optimality Inside the
Framework of the Current Legal System Provides Access to Medicines for HIV/AIDS Patients
in Sub Saharan Africa, 17 J. Transnat’l L. &
Pol’y 121 (Fall 2007).
Pedersen, Shannon L., When Congress Practices Medicine: How Congressional Legislation
of Medical Judgment May Infringe a Fundamental Right, 24 Touro L. Rev. 791 (2008).
Pieterse, Marius, Health, Social Movements,
and Rights based Litigation in South Africa, 35
J. L. & Soc. 364 (Sept. 2008).
241
Stern, Craig A., and Gregory M. Jones, The
Coherence of Natural Inalienable Rights, 76
UMKC L. Rev. 939 (Summer 2008).
Walker, Cort I., The Defense of Marriage Act
As An Efficacious Expression of Public Policy:
Towards a Resolution of Miller v. Jenkins and
the Emerging Conflict Between States Over
Same Sex Parenting, 20 Regent U. L. Rev. 363
(2007 2008) (Student Note from Christian Fundamentalist Law School).
Weir, Brian W., et al., Violence Against
Women with HIV Risk and Recent Criminal Justice System Involvement: Prevalence, Correlates,
and Recommendations for Intervention, 14 Violence Against Women 944 (Aug. 2008).
EDITOR’S NOTE:
All points of view expressed in Lesbian/Gay
Law Notes are those of identified writers, and
are not official positions of the Lesbian & Gay
Law Association of Greater New York or the LeGaL Foundation, Inc. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in
Lesbian/Gay Law Notes is welcome and will be
published subject to editing. Please address
correspondence to the Editor or send via e mail.