CALIFORNIA SUPREME COURT REJECT RELIGIOUS EXEMPTION TO GAY RIGHTS LAW

September 2008
CALIFORNIA SUPREME COURT REJECT RELIGIOUS EXEMPTION TO GAY RIGHTS LAW
The California Supreme Court ruled unanimously on August 18 in North Coast Women’s
Care Medical Group, Inc. v. San Diego County
Superior Court (Guadalupe T. Benitez, Real
Party in Interest), 2008 WL 3822791, that the
North Coast fertility clinic could not claim that
its physicians could refuse to provide a fertility
treatment to a woman because of their religious
objections to providing such service to a lesbian. In an opinion by Justice Joyce Kennard,
the court said that the state’s “compelling interest” in making sure that nobody is denied public accommodations due to their sexual orientation would overcome whatever religious
freedom rights the doctors might claim under
the California Constitution’s broad guarantee of
religious freedom. The court also rejected the
claim that applying the civil rights law in this
circumstance would violate the free speech
rights of the doctors.
The case arose from a civil rights claim
brought by Guadalupe Benitez, described in
the opinion as “a lesbian who lives with her
partner, Joanne Clark, in San Diego County.”
Benitez and Clark wanted to have a child that
Benitez would bear, but Benitez’s attempts at
self-insemination had failed, and in 1999 she
was referred to the North Coast clinic for fertility treatment. She was up-front with the medical staff about being a lesbian, and at first encountered no problem, but ultimately was
denied services based on religious objections
by two of the clinic’s doctors. Benitez received
a referral to a doctor outside North Coast’s practice, and subsequently conceived and bore a
child.
She filed suit against the clinic, represented
by Lambda Legal, to hold North Coast accountable for denying services to her. Benitez
claimed she was told that the objections were to
performing this procedure for a lesbian. The
two doctors who are named in the case, however, contend that they would refuse out of religious conviction to perform the procedure for
any woman who is not married, and that Benitez’s sexual orientation was irrelevant, as it
was her marital status that was the problem.
California’s Unruh Civil Rights Act, the statute governing claims of discrimination in
LESBIAN/GAY LAW NOTES
places of public accommodation, such as a
medical clinic, was not amended to ban sexual
orientation discrimination expressly until
2005, but at the time this refusal of services
took place, in 2000, it was well established in
California judicial decisions that sexual orientation discrimination violated this statute.
However, neither California courts nor the legislature have added marital status to the list of
prohibited grounds of discrimination.
In the trial court, the clinic raised as a defense that the ground for denying services was
marital status, not sexual orientation, and also
that the doctors’ rights of free exercise of religion and freedom of speech afforded them an exemption from any requirement to refrain from
discriminating on the basis of sexual orientation. Benitez asked the trial court to rule that
this religious exemption defense was invalid, in
order to eliminate that issue from the trial, and
the trial court ruled in Benitez’s favor on this
point in 2004, although it was clear that the
question whether the doctors’ religious objection actually had to do with Benitez’s marital
status rather than her sexual orientation would
remain a live issue in the case.
North Coast appealed this ruling and won a
reversal from the court of appeal, which held
that the trial court was not authorized to grant a
pre-trial judgment excluding this defense because the ruling did not fully dispose of the religious exemption defense, as it might be premised on the contention that Benitez’s sexual
orientation was not the cause of the religious
objections and the Unruh Act did not ban marital status discrimination.
The Supreme Court found that the court of
appeal had misconstrued the statute governing
jurisdiction over such pre-trial motions, and
that the trial court did have jurisdiction to grant
the motion. But the more significant rulings
came as the court sought to balance the religious freedom rights of the doctors against the
right of Benitez to be free of sexual orientation
discrimination.
The court easily disposed of the doctor’s federal First Amendment claim. Since a 1990 U.S.
Supreme Court ruling in the case of Employment Division v. Smith, 494 U.S. 872, it has
September 2008
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212–431–2156, fax 431–1804; e-mail: [email protected] or
[email protected]
Contributing Writers: Chris Benecke, J.D., New York City; Glenn Edwards, Esq., New York City; Alan J. Jacobs, Esq., New York City; Bryan Johnson, J.D., New
York City; Steven Kolodny, Esq., New York City; Alvin Lee, Student, Harvard Law School ‘09; Ruth Uselton, J.D., New York City; Stephen E. Woods, NYLS ‘09; Eric
Wursthorn, JD, New York City.
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
been established that a private actor is not exempt on the basis of religious objections from
complying with a neutral state law of general
application. That is, a person may be required
to comply with a state law that is not specifically
focused on regulating religious conduct or beliefs, even if complying with the law incidentally burdens the individual’s ability to practice
their religion. The Unruh Act is such a neutral
law, and the court had no trouble concluding
that there is no First Amendment exemption
from compliance with its non-discrimination
requirements. This 1990 ruling had marked a
sharp departure from prior federal precedents,
under which a state law that burdened religious
practice was subjected to strict scrutiny, and its
application would only be upheld if the state
showed it had a compelling interest that could
only be vindicated by application of its law.
The more difficult question for the Benitez
case was whether the potentially broader protection for religious belief and practice afforded
by the California Constitution might overcome
the non-discrimination requirements of the Unruh Act. In Employment Division, the U.S. Supreme Court had ruled that the plaintiff’s First
Amendment claim would be evaluated under
the “rational basis” test, by which the state statute would survive judicial review so long as
there was some legitimate policy justification
for it. In that case, a state unemployment benefits law had been interpreted to deny benefits to
a Native American man who lost his job because he violated his employer’s drug policy by
ingesting peyote in a religious ceremony. The
Supreme Court found that there was a rational
basis for the benefits law treating that discharge
as disqualifying for employment benefits.
But the California Supreme Court has not yet
ruled on whether it would take the same approach when dealing with a clash between religious free exercise and non-discrimination
under the state constitution. If California followed the federal approach, the doctors’
claimed religious exemption would clearly fail.
Justice Kennard found, however, that it was not
necessary for the California Supreme Court to
decide in this case whether to follow the current
federal approach, or the pre-Employment Division approach, because, citing the Marriage
Cases decision from May 15, she observed that
California has a compelling interest in ensuring
that gay people are not denied equal access to
the services of a place of public accommodation
such as North Coast’s fertility clinic, and the
only way to vindicate that interest is to require
that if North Coast provides this particular procedure, it do so without regard to the sexual orientation of the patient seeking the procedure.
156
Kennard pointed out that North Coast is not
required to provide the procedure to anyone,
but under the non-discrimination principle of
the Unruh Act, if it provides the procedure, it
may not discriminate based on sexual orientation. Because the state’s interest in preventing
such discrimination is “compelling,” the application of the Unruh Act in this case would survive strict scrutiny, if that remained the test under California law, as well as the more lenient
rational basis test, were the court to determine
that California should interpret its constitution
in parallel with the more recent federal precedents.
Kennard also pointed out that in the trial of
this case the doctors will still be able to present
their defense that it was Benitez’s unmarried
status rather than her sexual orientation that
caused their religious objections to providing
the service, and if they persuade the trial court
of that, they may still have a religious free exer-
September 2008
cise defense. The court of appeal erred in
thinking that the trial judge’s ruling would preclude such a defense in the context of a marital
status case.
Kennard also rejected the defendants’ argument that applying the Unruh Act to their refusal to provide this service was a violation of
their freedom of speech. They contended that
refusing to perform these procedures was an expressive act, but the court was unwilling to go
there, pointing out that it would create a big
loophole and ultimately defeat the effectiveness of the civil rights laws if defendants could
escape liability by characterizing their denial
of services as speech. The denial of medical
services is not speech, in the court’s view.
In a brief concurring opinion, Justice Marvin
Baxter, who dissented in the Marriage Case,
wrote that he did “not necessarily believe that
the state has a compelling interest in eradicating every difference in treatment based on sex-
Lesbian/Gay Law Notes
ual orientation,” but he did agree that in this
case the state’s interest in preventing discrimination in access to medical treatment was compelling. He also pointed out that he might take a
different view if the defendant was a sole medical practitioner as opposed to a clinic with a
medical staff. North Coast could comply with
the law’s requirements by making sure that
they had a doctor on the staff who was willing to
perform the procedure for lesbians, so that
other doctors with religious objections would
not have to do so, but Baxter would hold, were
the case presented, that a sole practitioner with
religious objections could refer the patient to
another physician for treatment.
The ruling was a defeat for Advocates for
Faith and Freedom and the Alliance Defense
Fund, which has litigated around the country
trying to establish a right for physicians in a variety of contexts to refuse to perform certain
procedures or provide certain services based
on their religious objections. A.S.L.
LESBIAN/GAY LEGAL NEWS
Massachusetts Opens Doors to Marriage for
Couples from Outside the State
The Massachusetts legislature acted decisively
in July to repeal an obscure provision of the
state’s marriage law, first enacted in 1913, that
has been used to block same-sex couples from
outside the state from marrying in the state. At
mid-month, the Senate approved repeal overwhelmingly by voice vote. On July 29, the
House concurred, voting 118–35 after a short
debate and sending on the measure to Governor
Deval Patrick, who signed it into law on July 31.
In May 2004, Massachusetts became the
first jurisdiction in the United States where
same-sex couples could marry, as a result of the
state Supreme Judicial Court’s decision in
Goodridge v. Department of Public Health, 798
N.E.2d 941 (Mass. 2003). As the date for implementation of the Goodridge decision approached, then governor Mitt Romney, an opponent of the decision, seized upon the
little-known state law provision, which prohibited issuing marriage licenses to any couple
whose marriage would not be allowed in their
home state, and ordered all the offices that issue marriage licenses to comply with that provision.
Gay & Lesbian Advocates & Defenders,
which had successfully litigated in Goodridge,
then filed suit on behalf of a group of out-ofstate couples, seeking to have the 1913 provision declared unconstitutional, but the SJC upheld its validity in Cote-Whitacre v. Department
of Public Health, 446 Mass. 350 (2006). However, the court construed the provision only to
bar issuing licenses to couples whose home
state affirmatively prohibited same-sex marriages, and noted that two of the plaintiff cou-
ples were from states whose positions as to this
were unclear at that time, New York and Rhode
Island, requiring a remand for further factfinding by the Superior Court.
Subsequently, the New York Court of Appeals ruled in Hernandez v. Robles, 855 N.E.2d
1 (N.Y. 2006), that New York’s marriage law did
not authorize same-sex marriages, and that
same-sex couples did not have a state constitutional entitlement to marry, so the Superior
Court held that New York same-sex couples
could not marry in Massachusetts. However,
the position of Rhode Island remained equivocal enough for the Superior Court to rule that
Rhode Island couples could marry in Massachusetts. (Although Rhode Island was not issuing licenses to same-sex couples, its marriage
statute had not been authoritatively construed
by the state’s highest court to forbid same-sex
marriages, and the attorney general had opined
that same-sex marriages contracted elsewhere
would be recognized in Rhode Island. The state
did not have statute on the books affirmatively
prohibiting same-sex marriages.)
Thus, with the exception of a handful of couples who managed to secure licenses and marry
in the first few weeks after Goodridge went into
effect and before some defiant local county
clerks bowed to the threat of being sued by the
state attorney general to enforce the 1913 provision, only same-sex couples resident in Massachusetts or Rhode Island have technically
been able to marry in Massachusetts.
Gov. Patrick was elected on a pledge to repeal the 1913 provision, but the impetus to do
so, especially in a national election year where
same-sex marriage might prove to be a “wedge
issue” favoring the Republicans, was not strong
until same-sex marriage became available in
California in mid-June, in a state without a residency requirement for marriage and with no restrictions based on the law of other jurisdictions. Since the California decision, and the
initiative vote to be held in that state on an
anti-marriage constitutional amendment, have
squarely placed the marriage issue back into
the year’s politics, the fear that moving forward
in Massachusetts would ignite an otherwise
quiet issue faded, and the political leaders in
both houses of the legislature agreed to move
forward.
At the signing ceremony, Gov. Patrick, whose
18–year-old daughter recently announced that
she is a lesbian, observed that in the five years
since the Goodridge decision was rendered,
“the sky has not fallen, the earth has not opened
up to swallow us all up, and more to the point,
thousands and thousands of good people contributing members of our society are able to
make free decisions about their personal future,
and we ought to seek to affirm that every chance
we can get.” Deval said that the repeal shows
that “Equal means equal” in Massachusetts.
However, a few weeks later, on August 25,
Massachusetts Attorney General Martha Coakley announced approval of the wording of a ballot measure to reinstate the 1913 statute, proposed by an organization called
MassResistance. They need to gather 33,000
valid signatures, and the earliest that the initiative could appear on the ballot would be 2010.
So, for now, same-sex couples in the United
States have a choice about whether to get married on the West Coast or the East, although
most couples from other states will encounter
difficulties in getting their marriages respected
elsewhere. And meanwhile we await the further
choice that might be opened up by the Con-
Lesbian/Gay Law Notes
necticut Supreme Court when it rules on the appeal of Kerrigan v. State of Connecticut, 909
A.2d 89 (Conn.Super. 2006). A.S.L.
5th Circuit Denies En Banc Review of Texas Sex
Toys Case, Leaving Circuit Split and Inviting
Supreme Court Review
The question whether state laws criminalizing
the sale or distribution of sex toys are constitutional drew a step closer to Supreme Court review on August 1 when the 5th Circuit Court of
Appeals denied a petition for rehearing en banc
of a panel decision issued on February 12,
which had stricken the Texas criminal sex toys
statute. Reliable Consultants, Inc. v. Earle,
2008 WL 2941355.
The original 2–1 panel ruling in Reliable
Consultants, 517 F.3d 738 (5th Cir.2008), was
based on an expansive reading of the Supreme
Court’s 2003 decision in Lawrence v. Texas, 539
U.S. 558, which had declared that the Texas
Homosexual Conduct Act violated the liberty
interest of same-sex couples by imposing
criminal penalties on private, adult consensual
sexual activity. In Lawrence, the Supreme Court
said that this “vital liberty interest” could not
be abridged based solely on moral disapproval
of homosexuality by the Texas legislature, the
only justification argued by the state in defense
of the statute.
The precedential scope of Lawrence is much
contested, and there are widely differing views
among the lower federal courts on whether
Lawrence was a narrow ruling to be confined to
the specific facts of that case, or whether it was
a broad ruling establishing a “new” doctrine
broadly protecting private consensual sexual
activity. In the five years since Lawrence, the
Court has declined every opportunity to revisit
the question of its precedential scope.
The 3–judge panel in Reliable Consultants
found that the state’s stated justification for the
criminal penalties on sale or distribution of sex
toys was moral disapproval, the ground disapproved in Lawrence for imposition of criminal
penalties that burden private consensual sexual acts. The Reliable panel found the analogy
of the two cases convincing, pointing by further
analogy to the contraception cases, in which the
Court struck down laws criminalizing sale or
distribution of contraceptives on the ground
that they substantially burdened the ability of
individuals to make highly personal decisions
about their reproductive activities, while the
dissenter argued strongly against that conclusion. The Reliable decision criticized and directly conflicted with a relatively recent ruling
by the 11th Circuit, Williams v. Attorney General of Alabama, 378 F.3d 1232, 1236 (11th
Cir.2004), rejecting a similar constitutional attack on an almost-identically-worded Alabama
sex toys prohibition.
September 2008
The petition by Texas for en banc review was
treated by the original panel as a petition for rehearing an/or for en banc reconsideration. After
first voting to deny rehearing, the panel polled
the active judges of the circuit, and determined
that there was no majority in support of granting
en banc review, but there were several dissenters.
Chief Judge Edith H. Jones, joined by four of
her colleagues, issued a brief dissent, noting,
among other things, that 5th Circuit rules forbid
a panel from overruling a prior decision of the
circuit, and that in the 1980s the circuit had rejected a constitutional challenge to this very
Texas statute. The circuit rule is that unless the
Supreme Court has issued a decision that compels a change in the circuit precedent, 3–judge
panels of the circuit are bound to abide by the
precedent. In the view of Judge Jones and her
colleagues, Lawrence did not compel the result
urged by the panel majority. Exhibit A for this,
of course, was the 11th Circuit decision holding
the other way.
Judge Emilio Garza wrote a separate dissent,
much lengthier, in which he took on the whole
concept of substantive due process, sharply
criticized Lawrence and the abortion decisions,
and basically pursued the far-right doctrinal
agenda for which he is noted. No surprise to
anybody… However, he did make an interesting point in distinguishing the contraception
cases from this case, explaining that under the
Texas statute only sale or distribution are condemned. Texans are free to possess and use sex
toys, but they just can’t obtain them in the state.
He didn’t think this was such a big burden on
their private sexual liberty. In common with
other conservative lower federal court judges,
he insisted on treating Lawrence as if the scope
of the decision was definitively described in
Justice Scalia’s dissenting opinion which, like
all dissents, is merely dicta, and not even dicta
of a Court majority.
Finally, there was an additional very brief
dissenting opinion by Judge Jennifer W. Elrod,
who, in addition to agreeing with Judge Jones
that the panel had violated an established circuit rule for dealing with precedent, also
seemed in her cryptic statement to be taking the
position that panels should not create circuit
splits by contradicting decisions by other circuits. That’s a rather odd idea, given the way
precedent works in the federal system and the
way the Supreme Court decides whether to take
cases for review. If there were no circuit splits,
it would be much more difficult to obtain review
of an issue. For example, it has proved impossible up to now to get the Supreme Court to review
the issue of gays in the military, because so far
there has been no circuit split, as all courts of
appeals have ultimately concluded that the policy is constitutional. The only exception there is
the very recent Witt decision by a 9th Circuit
panel, and it seems highly unlikely that the cir-
157
cuit won’t grant en banc review in Witt if the
government requests it. So long as all the circuits are lined up in one direction on an issue, it
is unlikely that the Supreme Court will grant review on a controversial and divisive issue.
Now there is a definite circuit split about the
constitutionality of these sex toys laws, leaving
it up to the state of Texas to decide whether they
want to cling to this ridiculous law so badly that
they are willing to chance a Supreme Court review. And, if the Court grants review, it may
prove the first opportunity to consider the
precedential scope of Lawrence, unless the
military case gets there first. A.S.L.
3rd Circuit Finds Child Online Protection Act
Unconstitutional
Writing a new chapter in a case that has been
kicking around the federal courts for a decade,
the U.S. Court of Appeals for the 3rd Circuit upheld a decision by a federal trial court that the
Child Online Protection Act (COPA), a federal
criminal law that Congress claimed was intended to protect children from exposure to
harmful sexual material on the worldwide web,
is unconstitutional. The unanimous threejudge panel ruling in American Civil Liberties
Union v. Mukasey, 534 F.3d 181 (July 22), produced a lengthy opinion by Senior Circuit
Judge Morton Ira Greenberg.
COPA was Congress’s response to a Supreme
Court ruling invalidating an earlier statute, the
Communications Decency Act. Under COPA,
anybody acting with a commercial purpose to
put sexually-oriented material that could be
deemed harmful to minors on the worldwide
web would be guilty of a federal crime unless
they could prove that they took effective steps to
prevent minors from accessing their site, usually by requiring the use of a credit card or some
age verification device for access.
The day that COPA was scheduled to go into
effect, October 21, 1998, a coalition of groups
led by the American Civil Liberties Union
(ACLU), and including gay on-line media, filed
suit in Philadelphia to get an injunction against
the statute. The federal court’s decision to issue
a preliminary injunction, barring the law from
going into effect until the case could be decided
after a full evidentiary record was made, was
appealed by the government and ultimately upheld by the Supreme Court in 2004.
At that time, the Supreme Court sent the case
back to the trial court, pointing out that one of
the key factual issues on which the case depends whether available filtering software is
more effective than the statute’s criminal penalties in preventing children from exposure to
harmful sexual material on-line should be
evaluated in light of current technology, and the
record on which the trial court had issued its injunction was seriously out-of-date. In the rapidly evolving world of technology, it seemed
158
likely that filtering software would evolve in the
direction of being easier and more effective
than it was in the late 1990s.
So it proved, according to the District Court,
in a portion of Judge Greenberg’s opinion that
was central to the court’s decision to affirm the
ultimate ruling on constitutionality. Greenberg
related that District Judge Lowell Reed found
that highly-effective software can be installed
by a typical adult user in ten or fifteen minutes,
and through its password protection process
can be nearly impossible for most minors (defined as persons under age 17) to circumvent.
The court found that COPA falls short of constitutional standards in three ways. Since it is a
content-based regulation of communicative
conduct, it is subject to strict scrutiny under the
First Amendment, which means that it is up to
the government to prove that it is narrowly tailored to achieve a compelling interest, being no
more intrusive on free speech rights than is
necessary. In this case, the court found that
COPA is not narrowly tailored because it
sweeps in much constitutionally protected
speech, potentially making it difficult for adults
to access sexually-explicit but non-obscene
material, especially if the user wants to be
anonymous to the provider of the material,
which most consumers of on-line porn would
likely prefer. In addition, by making the law applicable to anything that might be deemed
harmful to anybody under the age of 17, the law
could theoretically apply to materials that
would be harmful to a two-year-old, since
COPA does not specify any narrower age-range
than “under 17” for determining what is harmful.
On the other hand, because COPA only applies to American-based websites, and it is estimated that about half of the sexually-oriented
material on the web that might be subject to the
law emanates from foreign-based website, the
court found that COPA would be much less effective than adult-access filtering software,
which blocks access based on subject matter
regardless where a website is based. As a result, even if every American-based website
subject to COPA restricted access in compliance with that statute, there would be plenty of
“harmful” material available to minors. The
court intimated that this basic flaw in Congress’s strategy could suggest that Congress
was using the protection of minors as a pretext
to make sexually-oriented material less available to adults, an impermissible goal if the material is not “obscene” under constitutional
standards.
In addition to falling short under the First
Amendment, the court found that COPA offends the Due Process of Law requirement of
the 5th Amendment. A key component of due
process is that the law specify what conduct is
prohibited with enough precision so that an individual can know how to comply. The court
September 2008
found that COPA is too vague, because the general terms it uses to describe the kind of on-line
content it covers are too general, and nobody
could really know in advance whether the material they are exhibiting on the web falls within
COPA’s prohibitions until they are prosecuted
and a jury decides whether the material is
“harmful to minors,” except of course for the
most hardcore stuff that would already be illegal to exhibit under federal obscenity laws.
While it seems likely that the government
will appeal this ruling, so far the Supreme Court
has upheld most of the lower court decisions
finding constitutional fault with attempts by
Congress to shield minors from sexual material
on the Internet in ways that make it difficult for
adults to access material protected by the First
Amendment. In light of the Court’s 2004 decision upholding the preliminary injunction, and
District Judge Reed’s determination that, if
anything, filtering technology has gotten even
better than it was a decade ago, it seems unlikely that this decision would be reversed unless there is a significant change in the membership of the Court by the time this case comes
before it. A.S.L.
Public Order Concerns Trump First Amendment
Anti-Gay Speech in Philly OutFest Ruling
In Startzell v. City of Philadelphia 553 F.3d 183
(3rd Cir., July 15, 2008), the U. S. Court of Appeals for the 3rd Circuit ruled that police arrests of Christian protestors at an LGBT-themed
street fair in Philadelphia did not violate the
protestors’ free speech rights, as the protestors
were materially disrupting the event and were
afforded ample comparable venues in which to
voice their message.
On October 10, 2004, a not-for-profit Philadelphia organization known as Philly Pride organized an event called OutFest as part of a
celebration of “National Coming Out Day.”
Protestors from a Christian group named “Repent America” entered the area designated for
OutFest with “large signs, microphones, bullhorns, and musical instruments, seeking to proclaim their message that homosexuality is a
sin.” Police officers ordered the Christian protestors to move to a less disruptive location, and
when the protestors refused to do so, they were
arrested. They spent less than one day in jail,
and all charges against them were eventually
dropped. Nonetheless, the protestors filed suit,
alleging that their arrest was in violation of their
First Amendment free speech rights.
In assessing the protestors’ claim, the court
began by acknowledging that the speech at issue clearly “deserved constitutional protection
and that OutFest took place in a public forumthe streets and sidewalks of Philadelphia.”
Thus, the court refined its inquiry to whether
the government’s justifications for proscribing
Lesbian/Gay Law Notes
the Christian protestors’ speech were sufficient
to withstand First Amendment review.
The court first rejected the notion that by issuing OutFest organizers a permit to produce
the OutFest event, the city had thereby given
the organizers the right to exclude all those who
wished to express a message contrary to that of
OutFest. Distinguishing a line of United States
Supreme Court precedent which states that organizations cannot be required to sanction the
participation of groups with contrary messages,
the court pointed out that Repent America
sought not to gain OutFest’s apparent endorsement for participation in the day’s activities
and merely sought to voice an altogether opposite message, whether sanctioned or not.
Moving forward with its analysis, the court
next assessed whether the police actions were
viewpoint-based or content-neutral. In doing
so, the court noted that the “right of free speech
does not encompass the right to cause disruption, [particularly] when those claiming protection of the First Amendment cause actual disruption of an event covered by a permit.”
Pointing out that the protestors were confrontationally using microphones and bullhorns in an
attempt to inhibit the speech rights of OutFest
participants, which were specifically granted
by government permit, the court held that the
police action at issue “was not based on the
content of [the protestors’ speech] but on their
conduct.”
Given that the speech restrictions were
content-based, they would pass constitutional
scrutiny if they constituted “time, place, or
manner restrictions provided that the restrictions … ‘are narrowly tailored to serve a significant governmental interest, and that they leave
open ample alternative channels for communication of the information.’” The court concluded that the police clearly had a significant
interest in maintaining order throughout the
day’s activities.
Thus, the court moved on to the issue of narrow tailoring, testing whether the city’s actions
were sufficiently tailored to meet its interests
and whether such tailoring afforded the protestors ample alternative venues within which to
voice their message. In its tailoring inquiry, the
court reasoned that the police action was not
unconstitutional merely because there was
“some imaginable alternative that might be less
burdensome on speech.” The court held that
the tailoring here was rather narrow, explaining
that the City made much effort to grant the protestors’ access to OutFest and let them participate freely until they disobeyed police orders.
Further, the court held that there was no evidence that the government had unnecessarily
limited the protestors’ speech by directing
them to the area that they directed them to move
to, especially when considering that the area
was merely a block and a half from the epicenter of OutFest and “near Philadelphia’s biggest
Lesbian/Gay Law Notes
gay bar, a popular event location.” Thus, the
court held that that there were ample alternative channels of communication.
Finally, the Court rejected the protestors’ argument that the police had allowed a “heckler’s
veto” by limiting their speech merely because
of concerns over negative reaction to it. Pointing to the fact that the police had given the protestors ample alternatives to convey their message, the court held the heckler’s veto argument
to be unpersuasive. Alvin Y. Lee
2rd Circuit Remands HIV+ Gambian’s Asylum
Claim
The Court of Appeals for the 2rd Circuit has remanded an HIV+ Gambian woman’s application for asylum to the Board of Immigration Appeals (BIA) for reconsideration, in Ceesay v.
Mukaseyl, 2008 WL 3838470 (2rd Circuit,
Aug. 18, 2008).
The petitioner had applied for asylum in the
United States, fearing persecution on account
of her HIV status. The Immigration Judge
granted her petition, but the BIA reversed and
denied a subsequent petition to reopen the
case, finding that the discrimination the petitioner would face if returned to Gambia did not
rise to the level of persecution necessary for a
grant of asylum.
The petitioner appealed the BIA decision to
the 2rd Circuit, where a panel of judges was
highly critical of the BIA’s decision and held
that although “[t]he BIA was correct that discrimination and persecution are distinct concepts... [T]he BIA did not explain what standard for persecution it used in making its
decision, nor what understanding of ‘discrimination’ it used as a basis for the distinction.”
Therefore, it was impossible for the court to ascertain whether the BIA had applied the proper
legal standard to the petitioner’s case.
Additionally, the court held that the BIA had
failed to consider all material evidence when it
relied solely on a portion of a 2004 Department
of State report claiming that there was no evidence of serious harm to HIV+ individuals in
Gambia. The court held the BIA failed to consider other sections of the report that did suggest such serious harm and other independent
evidence submitted by the petitioner in support
of her claim. Accordingly, the court remanded
the case for further consideration by the BIA.
On remand, the BIA will be required to establish the distinction between “discrimination”
and “persecution” as well as consider all material evidence in determining whether the petitioner will be persecuted on account of her HIV
status if she were returned to Gambia. Bryan C.
Johnson
September 2008
Phelps Challenge to Ohio Funeral Picketing Law
Fails
A three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled on August 22 in
Phelps-Roper v. Strickland, No. 07–3600, that
Ohio Rev. Code Ann. Sec. 3767.30, a statute
banning demonstrations within 300 feet of a funeral service or burial ceremony, from one hour
before the ceremony to one hour afterwards,
does not violate the First Amendment free
speech rights of the members of Rev. Fred
Phelps’s Kansas-based Westboro Baptist
Church, who wish to conduct demonstrations
during funerals of U.S. service members killed
in Iraq.
Shirley Phelps-Roper, a member of the
church who is a relative of Rev. Phelps (as are,
apparently, virtually all the church’s members),
alleged in her complaint that the members of
the congregation “believe that homosexuality is
a sin and abomination. They further believe
that God is punishing America for the sin of homosexuality by killing Americans, including
soldiers. Because God is omnipotent to cause or
prevent tragedy, they believe that when tragedy
strikes it is indicative of God’s wrath.”
In order to communicate their beliefs, they
have picketed military funerals displaying
signs with slogans such as “Thank God for
IEDs,” “God Hates Fags,” “Thank God for
Dead Soldiers,” and “Thank God for 9/11.”
They claim that they can only effectively communicate their message through picketing at
actual military funerals and burials, and that
their right to hold such demonstrations in Ohio
has been chilled by fear of prosecution under
the statute.
Ohio has had a law banning picketing of funerals since 1957, but it did not define the geographical area within which picketing was prohibited and was thus vulnerable to challenge as
being overly broad. In 2006, reacting to recent
litigation by the Phelps family challenging such
statutes in other states, Ohio amended its statute to create an exact 300 foot buffer zone
within which picketing could not take place at
funerals, burials, and along the route of funeral
processions.
The trial judge decided that creating a moving buffer zone around funeral processions
went too far, and quickly granted a motion to invalidate that part of the statute, but granted the
state’s motion for summary judgment as to the
balance of the statute covering funeral services
and burials.
The court of appeals, in an opinion by Judge
Richard Fred Suhrheinrich, agreed with the
trial court. The court found that the picketing
ban was content-neutral, because it banned all
picketing or demonstrations, regardless of their
point of view. Under established First Amendment precedents, the state may impose “time,
place and manner” restrictions on speech if the
159
restrictions are content-neutral, and such restrictions are evaluated for their reasonableness. Such restrictions are upheld if they serve
a significant governmental interest, are narrowly tailored to avoid going beyond what is
necessary to serve that interest, and leave open
“ample channels of communication” for the
speaker’s message.
In this case, the court found that the government has a significant interest in protecting funeral attendants from being subjected to unwanted political speech during an emotionally
trying time. The court found that by adopting a
reasonably specific buffer zone and keeping it
in effect only from an hour before to an hour after a funeral, the state had met the narrow tailoring requirement. Because the Phelpses
could picket from beyond 300 feet during a funeral, with no statutory restriction on the use of
sound equipment, and because they did not
have to observe any buffer zones outside of the
specified time period, the court found that they
had ample opportunity to disseminate their
message, taking into account as well that they
maintain a website with their message that receives many hits.
The court’s decision upholding the Ohio statute opens up a disagreement with another federal appeals court, the 8th Circuit, which last
year refused in Phelps-Roper v. Nixon, 509 F.3d
480 (8th Cir. 2007), to grant summary judgment to the state of Missouri in a similar case
brought by Ms Phelps-Roper to challenge that
state’s funeral picketing law. The Missouri law
is similar to the way the Ohio law was before it
was amended in 2006 to adopt a more precise
buffer zone. The Missouri law merely specifies
“in front of or about any location at which a funeral is held,” leaving ambiguity about how far
away the pickets have to be to avoid violating
the law, and thus arguably failing the narrow
tailoring requirement.
More importantly, however, the 8th Circuit
panel opined that the state’s interest in protecting funeral attendants was probably outweighed by the free speech interests of the
Phelpses. The Supreme Court has yet to address this issue in the context of funeral picketing, but it has ruled in past cases that a state
could ban picketing in residential areas to protect people from disturbance in their homes,
and the 6th Circuit built upon these rulings to
find a government interest outside the home at
other locations where individuals might have a
particular privacy right, such as at a funeral
service. The 8th Circuit, by contrast, refused to
expand on the Supreme Court’s rulings, pointing out that the Court has not ruled that people
have a right outside the home to be shielded
from political speech that they might find disturbing or with which they might disagree.
The 8th Circuit disagreed with the contention that the Phelpses would still have ample
channels to communicate their message, cred-
160
iting their argument that their message needed
to be delivered in the proximity of a funeral
service in order to preserve its impact.
These differences of opinion open the possibility that the Supreme Court might grant review in a funeral picketing challenge in order to
resolve the question, especially in light of the
rash of funeral picketing statutes that have
been passed around the country in response to
the energetic picketing activities of the
Phelpses. A.S.L.
Oregon Supreme Court Strikes Abusive Speech
Statute in Case of Racist, Homophobic Road Rage
The Oregon Supreme Court ruled unanimously
on August 14 that a provision of the state’s
criminal harassment statute focused on abusive
speech violates the free speech provision of the
state constitution. The ruling in State of Oregon
v. Johnson, 2008 Westlaw 3484317, concerned
an incident in which the defendant spewed racist and homophobic venom at a lesbian couple
during a traffic altercation.
Justice W. Michael Gillette’s opinion succinctly states the facts: “Defendant found himself stuck in rush hour traffic near a car that was
occupied by two women, one white and one
black. The car had a rainbow decal on the rear,
which caused defendant to assume that the
women were lesbians. The women’s car pulled
in front of defendant’s pickup truck as the lanes
narrowed from two to one. Defendant became
angry and began ‘tailgating’ the women and,
using some sound amplification system,
shouted various obscene and racist epithets at
the women, accompanied by extremely rude
gestures. Defendant’s conduct drew the attention of other drivers and lasted for about five
minutes as the cars inched through stop-and-go
traffic.
“Eventually, one of the women got out of the
car to confront defendant. Defendant did not
leave his pickup, but he and the woman engaged in a heated verbal exchange. Defendant
did not verbally threaten the woman with violence and no actual violence took place, but the
woman later testified that she believed that defendant was trying to incite her to violence. She
ultimately returned to her car when her companion intervened and told her that a person in
the bed of the pickup was swinging a skateboard in a menacing way. The two women then
drove away and called the police.” (The passenger’s conduct was not made subject to
criminal charges.)
Defendant was charged with harassment in
violation of ORS 166.065(1)(a)(B), which
makes it a crime to harass or annoy another person by “publicly insulting such other person by
abusive words or gestures in a manner intended
and likely to provoke a violent response.” The
trial judge rejected defendant’s argument that
prosecution of him was unconstitutional sup-
September 2008
pression of free speech, and he was convicted.
The state’s court of appeals affirmed the conviction.
Article I, Section 8 of the Oregon Constitution states: “No law shall be passed restraining
the free expression of opinion, or restricting the
right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.” In the
past, the state’s courts have given this amendment a very broad construction, protecting a
wide variety of speech — including sexually
oriented speech — that does not necessarily
enjoy First Amendment protection under the
U.S. Constitution, thus making Oregon a bastion of free expression if those precedents are to
be taken seriously.
As the Supreme Court analyzed the issue, the
statute seemed quite overbroad in light of whatever legitimate interest the state might have in
preventing violence. “Put most simply,” wrote
Justice Gillette, “the statute proscribes a certain species of ‘harassment’ or ‘annoyance,’ period,” since it does not require any finding that
the statement fits the classic definition of
“fighting words,” that is, a statement that is
likely to incite imminent violence from those to
whom it is directed.
“Taunts intended and likely to produce a violent response are not limited to playgrounds
and gang disputes,” wrote Gillette. “They extend to political, social, and economic confrontations that range from union picket lines to the
protagonists on a host of divisive issues, and
thus include a wide range of protected speech.
Moreover, courts have long recognized that
even speech that is intended and likely to produce violence may not be criminalized unless
the violence is imminent. It follows, we believe,
that a harassment statute that lacks that limitation sweeps too much protected speech within
its reach to survive a facial challenge.”
“Harassment and annoyance are among
common reactions to seeing or hearing gestures
or words that one finds unpleasant,” Gillette
continued. “Words or gestures that cause only
that kind of reaction, however, cannot be prohibited in a free society, even if the words or
gestures occur publicly and are insulting, abusive, or both. Stated another way, ORS
166.065(1)(a)(B) constitutionally may protect
a hearer or viewer from exposure to a reasonable fear of immediate harm due to certain
types of expression, but it cannot criminally
punish all harassing or annoying expression.”
Gillette conceded that defendant’s expression “may have been offensive,” but asserted
that “the state may not suppress all speech that
offends with the club of the criminal law,” and
thus the court found that the statute was overbroad on its face and violates the state constitution.
In a footnote, however, Gillette indicated that
striking down this criminal statute did not nec-
Lesbian/Gay Law Notes
essarily mean that a person in the defendant’s
situation would bear no responsibility or liability for his conduct. “We recognize that our decision today prevents using the criminal law to alleviate some kinds of distressing
circumstances, but that is a consequence of
Oregon’s explicit protection of freedom of expression in Article I, Section 8. We note, however, that our ruling is confined to the state’s attempt to use the criminal law in retaliation
against defendant’s expression. We state no
opinion as to whether some civil remedy, or
even some other part of the criminal law, might
be applied to the facts of this or other, similar
cases.”
The court reversed the lower court rulings
and remanded the case for further proceedings.
A.S.L.
Sacramento Judge Upholds New Title and
Description for Prop 8, Edits Proponents’ Ballot
Arguments
Sacramento County Superior Court Judge
Timothy M. Frawley has rejected a challenge to
California Secretary of State Jerry Brown’s revised title and ballot description for Proposition
8, the measure intended by its proponents to
embed in the state constitution a provision that
only the marriage of a man and a woman would
be “recognized or valid in California.”
Frawley’s rulings on August 7 in response to two
separate petitions from proponents and opponents of the measure also dealt with the contents of voter pamphlets that will be mailed in
advance of the election. Jansson v. Bowen, No.
34–2008–00017351; Gabriel-Jenkins &
Jang-Hefner
v.
Bowen,
No.
34–2008–00017366.
The California Supreme Court had previously rejected an argument that Prop 8 should
be removed from the ballot because, among
other things, the title and official description
that appeared on the petitions and under which
it was originally certified for the ballot, had
been rendered inaccurate by the Court’s May
15 ruling in the Marriage Cases. Even though
Attorney General Brown had defended the use
of the original title and description, which was
drafted by his office in response to the original
petitions, he then turned around and revised
both of them to reflect the new developments.
The original title was “Limit on Marriage.
Constitutional Amendment.” The original ballot description merely paraphrased the text of
the proposed amendment. Brown’s revised title
states: “Eliminates Right of Same-Sex Couples
to Marry. Initiative Constitutional Amendment.” The new description states: “Changes
the California Constitution to eliminate the
right of same-sex couples to marry. Provides
that only marriage between a man and a woman
is valid or recognized in California.” Brown’s
revisions, thus, emphasized that passing Prop 8
Lesbian/Gay Law Notes
would make a change in the constitutional
rights of same-sex couples, rather than preserving the status quo, as the prior wording had suggested.
Proponents of Proposition 8 challenged these
changes, arguing that they are “argumentative”
and “likely to create prejudice against Proposition 8” by suggesting to the public that Prop 8
would take rights away from people. In rejecting this argument, Judge Frawley pointed out
that under established California precedents
the Attorney General has wide latitude to compose a ballot title and summary that is descriptive of the measure being put up for a vote, and
courts are supposed to give “substantial deference to the Attorney General’s actions.” The
California constitution says that the title and
summary should communicate the “chief purpose and points” of the measure, and Frawley
wrote that “substantial compliance with the
‘chief purpose and points’ provision is sufficient.”
Frawley concluded that the proponents of
Prop 8 had failed to overcome this strong presumption. “There is nothing inherently argumentative or prejudicial about transitive
verbs,” he wrote, “and the Court is not willing
to fashion a rule that would require the Attorney
General to engage in useless nominalization.”
He pointed out that the original title favored by
the proponents “Limit on Marriage” “also begins with a ‘negative’ term. Petitioner has failed
to explain why the term ‘eliminates’ is inherently argumentative, while the term ‘limit’ is
not.”
The proponents’ case really revolved around
the supposition that the California Supreme
Court’s May 15 ruling is somehow improper
and that a “right to marry” does not exist, and
thus Proposition 8 would not be “eliminating”
any right, but Frawley strongly rejected that
contention. “It is undisputed that if Proposition
8 is approved, marriage would be limited to individuals of the opposite sex, and individuals of
the same sex would no longer have the right to
marry in California,” so the new title and summary are “not false and misleading.”
While the new summary is “underinclusive”
in that it does not deal with all the effects and
ramifications of Proposition 8, which deals both
with “recognition” and “validity” of same-sex
marriages, not just with their performance in
the state of California, Frawley rejected this as a
reason to disapprove Brown’s summary, finding
that the summary is not required to cover every
point raised by the Proposition.
Each side in the controversy over Prop 8 had
objections to statements submitted for the voter
pamphlet by the other side. The proponents argued, among other things, that because of California’s domestic partnership law, same-sex
couples already have “the same rights, protections and benefits” as married couples, and
Prop 8 would not take away any of those rights.
September 2008
Opponents charged that this was a false and
misleading statement that must be deleted, but
Judge Frawley disagreed, finding that although
it was technically imprecise, it was not prejudicially false and misleading, as the California
Supreme Court in the Marriage Case had commented that the existing statutes did generally
grant same-sex partners the same rights as married couples under state law.
On the other hand, Frawley agreed with the
opponents that the statement that Prop 8 does
not take “any rights” away from same-sex couples, was false, as the Supreme Court had ruled
that same-sex couples have a right to marry,
and Prop 8 would take that right away. Thus,
Frawley required the proponents’ argument to
be revised to state merely that Prop 8 would not
take away any of the rights already enjoyed by
domestic partners.
Frawley refused to strike the proponent’s argumentative statement that the California Supreme Court’s decision had “ignored the will of
the people,” finding it to be “typical partisan
argument,” but he agreed that the statement
that teachers “will be required” to teach young
children about gay marriage was misleading,
for the simple reason that California does not
require the schools to instruct young children
about marriage, and parents in California have
the authority to exempt their children from attending health education courses that might
cover the subject if there are conflicts with the
parents’ religious or moral views. Frawley decided that the argument in the pamphlet must
be rewritten to state that the court’s decision
“may result” in schools teaching students that
“gay marriage is okay,” and that the curriculum
could be changed to require such instruction,
rather than that this would be mandated under
existing law.
The proponents objected to some of the arguments made by opponents in their submitted
pamphlet language. Opponents, countering
proponent’s pamphlet argument, asserted that
Prop 8 “doesn’t have anything to do with
schools” and “won’t affect our schools,” and
that “no child could be forced against the will of
their parents to be taught anything about health
and family issues.” Proponents argued that this
was inaccurate and should be stricken, but
Frawley rejected this criticism, maintaining
that there is “at most a reasonable difference of
opinion as to whether Proposition 8 will have
any effect on what may or could be required
teaching in schools,” and as argument it can be
included in the pamphlet.
Proponents also challenged the assertion by
the opponents that domestic partnerships and
marriage aren’t “the same” in respect to “everyday life,” “emergency situations,” and in
“the security that spouses provide one another.” Proponents had argued that these were
false arguments because “there are no substantive legal differences between marriage and do-
161
mestic partnership in these matters.” Frawley
rejected this objection, pointing out that the
California Supreme Court’s ruling “held they
are not the same.” Indeed, that was the basis for
the court finding a constitutional violation in
the denial of the right to marry. Thus, the opponents’ pamphlet argument survived this challenge unscathed.
As soon as Frawley’s decision was released,
the proponents announced that they would appeal, but a few days of thought convinced them
that there was not time to appeal, since the editorial deadline for the voter pamphlets was
August 11. They announced on the 11th that
they would abandon their prior decision to appeal, so Brown’s revised title and description
and the voter pamphlet arguments as revised by
Judge Frawley will be mailed out to the voters
prior to the November 4 election. A.S.L.
Federal Court Sustains New York Regulation
Against Medicaid Coverage for Gender Transition
U.S. District Judge P. Kevin Castel ruled on
August 5 in Casillas v. Daines, 2008 WL
3157825 (S.D.N.Y.), that New York State’s
adoption and enforcement of a regulation
adopted by the Pataki Administration, 18
N.Y.C.R.R. sec. 505.2(1), prohibiting the use
of Medicaid funds to pay for sex reassignment
treatment, does not violate the constitutional
right to Equal Protection of the law, and that an
individual whose coverage for hormone treatment that had been provided for almost a quarter century until they were cut off by adoption of
this regulation has no legal claim against the
state for violating her rights to continued Medicaid coverage to maintain her feminine body
characteristics..
The lawsuit was brought by Terri Casillas, a
male-to-female transsexual who has identified
as a woman since the age of 16, and was diagnosed with gender identity disorder in 1978.
She began living as a woman soon thereafter,
and was receiving hormone therapy to conform
her body to her gender identity with financial
support from the New York Medicaid program
beginning in 1980. She alleges that as a result
of this treatment she “developed breasts and
her facial and body hair lessened so that she no
longer needed to shave her facial hair. She developed a more traditionally female body with a
smaller waist and larger fat pockets around the
hips.” As a result of these physical changes, her
psychological discomfort about her gender
“dramatically lessened.”
In 1997, however, the New York State Department of Health published a notice proposing a regulation terminating Medicaid payment
for any treatment supporting gender transition.
After an extended period for public comment,
the regulation was adopted providing that “payment is not available for the care, services,
drugs or supplies rendered for the purpose of
162
gender reassignment (also known as transsexual surgery) or any care, services, drugs or supplies intended to promote such treatment.” After the regulation went into effect, Ms. Casillas
was notified that her Medicaid reimbursement
for hormones would cease. She was able to continue hormone treatment by using a “prescription drug discount plan” from September 2004
to May 2006, but ran out of funds and had to
discontinue the treatment.
As a result of discontinuing hormone treatment, “she has suffered fatigue, nausea and
body tremors,” wrote Judge Castel. “Among
other things,” she alleges in her complaint,
“the size of [her] breasts decreased and she developed hair on her breasts. Her voice deepened, and her skin became much rougher.” She
was “horrified” by these physical changes. She
consulted a specialist in January 2207, who advised that “hormones, orchiectomy and vaginoplasty are medically necessary to treat plaintiff’s GID,” an opinion “endorsed by her
current psychologist as well as by a prior treating psychiatrist.”
But Medicaid refused to resume paying for
hormones or to pay for the indicated surgery,
leading to this lawsuit. Casillas argued that she
is entitled to be covered for these treatments
under the federal Medicaid statute, which establishes minimum standards for participating
state Medicaid programs, and that denial of this
coverage denies her right to equal protection of
the law. She sued under 42 U.S.C. sec. 1983 to
enforce her federal statutory and constitutional
rights.
Judge Castel found, based on a 2002 U.S. Supreme Court ruling, Gonzaga University v. Doe,
536 U.S. 273, that under 42 U.S.C. sec. 1983,
only an “unambiguously conferred right” can
support a valid lawsuit to enforce a right based
on a federal statute. The problem for Casillas
was that Judge Castel found that the federal
Medicaid statute does not unambiguously provide the right she is seeking to assert. Indeed,
the Medicaid statute allows states to impose
substantive coverage limitations as a way of allocating scarce resources. The test under the
Medicaid statute is not whether a particular
treatment is judged to be medically necessary
by the individual’s physician, but rather
whether the state is funding those procedures
that they make available at an adequate level.
Casillas sought to argued that the regulation
violates non-discrimination principles incorporated in the Medicaid statute itself. New York
State Medicaid covers hormone therapy and the
surgical procedures she is seeking, in cases
where those treatments are needed for other
purposes. The position of the state is that if
somebody needs to have breasts removed to
treat cancer, for example, or plastic surgery for
bodily repair after an accident, or hormone
therapy to cure some other medical condition, it
will be made available.
September 2008
At the time it adopted this regulation, the Department of Health cited the “responsibility
both of allocating available resources and of assuring that services available to recipients are
safe and effective,” noting that “there may remain only one medical facility [in the state] that
continues to provide full scope of gender reassignment services,” and that “there are equally
compelling arguments indicating that gender
reassignment, involving the ablation of normal
organs for which there is no medical necessity
because of underlying disease or pathology in
the organ, remains an experimental treatment,
associated with serious complications.” The
Department also asserted that “there are serious questions about the long-term safety of administering testosterone at therapeutic levels,
required for the remainder of the life of the person who undergoes gender reassignment.”
Having found that denying the treatment
does not violate the federal Medicaid statute,
the judge turned to Casillas’s constitutional
claim, which received rather cursory analysis.
“Plaintiff does not assert membership in any
suspect classification or that the denial of
Medicaid reimbursement for gender reassignment surgeries implicates a fundamental
right,” he wrote, meaning that her equal protection claim would be evaluated using the rationality test. Castel decided that the reasons cited
by the Department for adopting the regulation
were sufficient to satisfy that test.
“The state agency’s assessment of public
comment on the proposed regulation explained
succinctly the reasons for denying reimbursement of gender reassignment surgeries and associated treatments. It cited ‘serious complications’ from the surgeries and danger from
life-long administration of estrogen. This provided a more than sufficient rational basis
which was related to legitimate government interests the health of its citizens and the conservation of limited medical resources,” he concluded, failing to note the difference between
estrogen, the treatment Casillas had been receiving, and testosterone, the hormone mentioned in the Department’s explanation quoted
above.
While the court’s decision is written in respectful terms, it nonetheless reflects a toleration for the state Health Department’s view at
least during the Pataki Administration when
this regulation was adopted that gender identity
disorder can be sufficiently treated through
psychotherapy and that the state should not
have to pay for medical treatment, even when
medical experts in gender identity concluded
that it is medically necessary in a particular
case. Actually, given the change in state administrations, it is likely that an approach to the
new policy-makers in the Department of Health
for regulatory change would be more fruitful
than pursuing the issue in the relatively conservative federal courts, where the current doc-
Lesbian/Gay Law Notes
trinal situation seems stacked against a positive
result. A.S.L.
New Mexico Appeals Court Affirms Support
Obligation for Sperm Donor to Lesbian Mother
Deciding what appears to be a question of first
impression in New Mexico, the state’s court of
appeals, an intermediate appellate court, ruled
that a written agreement excusing a sperm donor from any child support obligation was unenforceable under the circumstances, so the
man was obligated to pay child support to a lesbian who bore two children from his donated
sperm. However, the court found that the
mother had failed to demonstrate changed circumstances sufficient to trigger a new support
evaluation after she became dissatisfied with a
prior stipulated amount. Mintz v. Zoernig, No.
27,794 (N.M.Ct.App., July 25, 2008).
According to the opinion for the appeals
court by Judge Michael E. Vigil, the mother
came to know the donor through her same-sex
partner, and the three became friends. Mother
and her partner wanted to have children together, and tried for some years to persuade
their friend to donate sperm for them, with the
understanding that he would be a male role
model for the child but would not have any legal
or financial obligation. After resisting for several years, the donor finally agreed and donated
sperm, leading to the birth of a child. The insemination was accomplished at home without
the participation of a physician. Shortly after
the birth of the child, the donor, mother and her
partner executed a written agreement embodying their understanding. The donor established
a relationship with the child.
Mother and her partner separated, but
mother wanted to have another child, and the
donor agreed to donate sperm for a new insemination under the same terms, although there
was no written agreement governing the second
child. Again, insemination was accomplished
at home without a doctor’s participation. The
second child was born, and again the donor
sustained a relationship, now with both children, as a male parental figure.
Three years after the birth of the younger
child, mother demanded that donor provide
child support and, when he balked, filed a paternity action in court seeking a support order.
Donor agreed to a stipulated amount, which was
approved by the court, and the donor has faithfully made the payments. But then three years
later, mother demanded an increase. (In the
meantime, donor had married and had three
children with his wife). Donor again balked and
this time the case went to a hearing, which focused on the donor’s income and led to an order
substantially increasing his monthly payments.
He appealed.
On appeal, donor made two arguments. First,
he argued that pursuant to the written agree-
Lesbian/Gay Law Notes
ment, he had no support obligation at all. Second, he argued that even if he had an obligation,
the trial court had abused its discretion in setting the increased amount.
The court of appeals split the baby, so to
speak. It found that the donor does have a support obligation, but it also found that the trial
court abused its discretion in setting the increased amount because the mother had failed
to sustain her burden of showing changed circumstances, a prerequisite to revisiting the issue after an earlier stipulated amount had been
incorporated into the support order.
The first ruling is clearly the more significant, addressing a question of first impression
on the enforceability of an agreement under
which the donor would contribute his semen to
the project of mother’s pregnancies. The court
found that the agreement could have been enforceable under New Mexico’s adoption of the
Uniform Parentage Act, but the failure of the
parties to involve a doctor in the insemination
process when there was a known donor took
these conceptions outside the jurisdiction of
the Act’s provision on donor insemination.
What remained in the absence of the Act was
the clear public policy of New Mexico that a
biological father of a child has a legal obligation
of support if he has held himself out as the
child’s father, and any purported agreement to
the contrary is unenforceable as a matter of
public policy.
Judge Vigil noted that the donor had exercised visitation rights, and had even gone to
court to complain that mother was restricting
his visitation rights at one point. In the stipulated support order that had earlier been filed,
the donor had agreed that he was the father of
the children. Consequently, the normal rules
governing parental obligations applied, since
under the Uniform Parentage Act, a natural father of a child has a legal support obligation to
the child that cannot be waived through an
agreement with the mother. As a result, the
agreements made in connection with each of
the insemination were unenforceable.
However, New Mexico law imposes a burden
on a party seeking modification of a support order to show that there are changed circumstances that justify the court reconsidering the
support order. In this case, although mother alleged that her financial circumstances had
changed, the court of appeals found that there
was insufficient evidence in the trial record to
support that allegation. Indeed, the trial record
was devoted primarily to examining the donor’s
finances. The court noted that what evidence
there was showed that mother’s income was the
same at both time periods, and that trusts established for the children were still intact and providing income. Mother had alleged that an income stream from a family business had
terminated, but there was no specific evidence
introduced on this.
September 2008
Consequently, the court of appeals found that
the trial court abused its discretion by revisiting
the issue of support.
The lesson for sperm donors who seek to
avoid financial responsibility in a state that has
adopted the Uniform Parentage Act is clear. The
way to insulate a donor from responsibility is to
follow the statutory formula of having the donor
provide the sperm to a license physician, who
then performs the insemination, in which case
the donor is not presumed to be the legal father
with financial obligations unless he has expressly signified his intent to assume those obligations. A private agreement between donor
and mother, whether or not in writing, may not
hold up if the UPA formula is not followed.
A.S.L.
Is It Frivolous For a Religious Heterosexual Man
to Sue for Libel for Being Called a “Fruitcake”?
If a lawyer defending his client from zoning
charges writes a letter to public officials calling
the man who stimulated the charges a “fruitcake,” has he committed libel? Or would it be
frivolous for the man so called to file such a lawsuit, subjecting him to pay the defendant’s legal
fees and penalties? One answer to these questions can be found in Habib v. Winther, 2008
WL 2955888 (Wash.App. Div. 1, Aug. 4, 2008)
(unpublished opinion).
Boualem Habib and his family live in a
building in Seattle called Alki Shores. Habib
describes himself as a religious Muslim heterosexual. The building has commercial space on
the ground floor and apartments above. Some
time after Habib’s family moved into the building, the owner let space on the ground floor for a
bar, which resulted in traffic and noise that
Habib did not appreciate. Habib made his unhappiness known at community meetings, and
got a local community association to communicate his concerns to law enforcement. Inspection of the premises was followed by citations
for violation of a city ordinance.
The owner of the building retained Harold
Winther to fight the violations. Winther wrote a
letter to the requisite public officials, explaining why the citations were not valid, and in his
final paragraph referred to Mr. Habib as a
“fruitcake.” Habib claims to have done some
on-line research to figure out what he was being
called, decided it had nothing to do with sweet
pastry and instead related to derogatory references to homosexuals, and went to a lawyer to
seek vengeance. The lawyer also did some online research, to confirm that the word “fruitcake” could be a derogatory reference to homosexuals, and then filed a libel action on Mr.
Habib’s behalf.
Winther filed a motion for summary judgment, arguing that he was not calling Mr. Habib
a homosexual, just odd, and, furthermore, that
he was entitled to compensation for his defense
163
costs and sanctions against Habib for violating
Washington State’s Strategic Lawsuit Against
Public Participation (SLAPP) statute. SLAPP
statutes are intended to confer immunity from
liability or defense costs upon individuals who
might be sued to deter them from participating
in public affairs and controversies of public interest.
King County Superior Court Judge Douglas
D. Mcbroom granted the motion for summary
judgment. Although acknowledging that one
could come up with the usage specified in the
complaint as a result of research, he found that
the meaning of the term was sufficiently “ambiguous” in the context in which it was used
that it was not libelous per se. Mcbroom made
no analysis of the question whether as a matter
of modern application of tort law it should be
considered libelous falsely to call somebody
gay, a point much argued elsewhere. According
to the opinion by the Washington Court of Appeals, “fruitcake” has two dictionary definitions, the first having to do with the pastry, the
second with the idea of a person who is “eccentric.” Evidently, the dictionary consulted by
Judge Mcbroom does not include vulgar
slang...
Despite ruling for Winther on the merits,
however, Mcbroom rejected his demand for fees
and penalties, either on the ground of frivolous
litigation or violation of the SLAPP statute. Noting the testimony that efforts were made to ascertain the meaning of “fruitcake” prior to filing suit, Mcbroom stated, “I can see that there
is some reason for this lawsuit that you’ve
brought for sure.” Yet, not enough reason to rule
for Habib on the merits, in the absence of proof
he had been actually harmed by the statement
in Winther’s letter.
As to the SLAPP allegations, Mcbroom dismissed them without discussion.
Habib did not appeal his loss on the merits,
but Winther appealed his loss on the claim for
fees and penalties, bringing this trivial litigation to the Washington Court of Appeals. The
court agreed with Mcbroom’s disposition on
every point. It pointed out that the bar is set
high by the Washington statute authorizing trial
judges discretion to grant fees in frivolous
cases, and if there is any possible basis for a
lawsuit, it is unlikely to be considered frivolous.
As to the SLAPP claim, wrote the court in its per
curiam ruling, “Communications to the city regarding conditions at the Celtic Swell may be
an issue of public or social significance protected by the anti-SLAPP statute. But a dispute
concerning a code violation is a private matter
between the city and the Celtic Swell, even if
some members of the public are interested in
the outcome. The purpose of Winther’s letter
was not to “make a good-faith report” of “information ... concerning potential wrongdoing,”
but rather to advance legal arguments challenging the city’s decision. The trial court did not
164
err in concluding that the anti-SLAPP statute
did not apply.”
The court rejected Habib’s argument that
now he should be awarded fees because
Winther’s appeal was frivolous.
Now we’ll see how closely to stereotypes
about lawyers Mr. Winther adheres: Will he
bring this trivial case to the Washington Supreme Court? By the way, he represents himself
pro se..... A.S.L.
California Officials Alter Ballot Label for
Proposition 8, Sparking New Lawsuit
Taking account of arguments that had been presented to the California Supreme Court about
how the ballot description of Proposition 8 had
been rendered misleading as a result of the beginning of legal marriages for same-sex couples
on June 16, the Secretary of State’s office has
issued a new ballot label, ballot title, and official summary, which is more accurately descriptive, although still subject to some question.
The new title will read: “Eliminates Right of
Same-Sex Couples to Marry. Initiative Constitutional Amendment.” The new language for
the label, which is essentially the same as the
new language for the official summary, states:
“Changes California Constitution to eliminate
the right of same-sex couples to marry. Provides
that only marriage between a man and a woman
is valid or recognized in California. Fiscal Impact: Over next few years, potential revenue
loss, mainly sales taxes, totaling in the several
tens of millions of dollars, to state and local governments. In the long run, likely little fiscal impact on state and local governments.”
Presumably, this doesn’t mention the loss of
potential income tax revenue from taxing twoincome same-sex spouses as married couples
on the theory that registered domestic partners
are already taxed in that manner, but it ignores
the likelihood that more people will marry than
would have registered as domestic partners. In
any event, this at least puts the voter on notice
that the amendment actually changes the Constitution to eliminate a right, rather than merely
creating a state constitutional definition for
valid marriages, and that the result will be a significant potential revenue loss for the state and
local governments, at least in the short term.
Open to question: Whether the summary is accurate in stating that the fiscal impact will
likely be “little” in the long run.
The Protect Marriage coalition that sponsored Proposition 8 immediately screamed foul
and stated that it would file suit to block the new
title and description, characterizing the new
language as “inherently argumentative,” and
asserting that it would “prejudice voters against
the initiative.” Well, yes, that’s the idea. Instead of concealing and misleading voters as to
the current state of affairs, which the prior lan-
September 2008
guage would do, the new language more accurately describes the current state of affairs. The
Attorney General’s office responded to this
criticism by asserting that it more accurately
describes the proposition. It seems unlikely
that a court will order reversion to the old, obsolete language. Los Angeles Times, July 29.
A.S.L.
Indiana Appeals Court Reverses Change of
Custody Precipitated by Mom’s Friendship With
Transsexual
In an unpublished decision dated July 24, the
Court of Appeals of Indiana reversed a child
custody decision that appears to have been precipitated by a sex-reassignment procedure undergone by a close friend of the children’s
mother. Lowhorn v. Lowhorn, 2008 WL
2839485. The court of appeals found that many
of the trial court’s factual findings in support of
its decision to switch primary physical custody
over two children from their mother to their father were not supported by the record, and that
some of the adverse findings were as to de minimus matters that did not justify a custody
change.
Diana and Brian Lowhorn divorced in July
2002, when their children were 9 and 5. Diana
was awarded primary physical custody, but the
ex-spouses shared legal custody, and Brian had
visitation rights. Brian remarried. Diana carried on a platonic relationship with Galen,
whom Brian knew as a “super nice guy,” but after father learned that Galen had gone through a
sex-reassignment procedure and that Diana
had been taking the children with Galen to
services at a Metropolitan Community Church
a primarily gay-oriented evangelical denomination he filed for sole legal custody and primary physical custody, arguing that changed
circumstances and the best interests of the children required the change.
The trial judge, Kenneth H. Johnson of Marion Superior Court, took more than a year after
the hearing to render his decision, awarding
Brian the relief he requested. The court of appeals found, however, that Johnson’s longpondered decision included many factual findings not supported by the record. For example,
Johnson found that Diana was “continuously”
taking the children to MCC services and was
forcing them to be seen in public with Galen
dressed as a woman, to their embarrassment.
Neither of these findings were supported by the
record, as uncontradicted testimony showed
that Diana took them to MCC only a few times
and stopped when they complained, and that
after one incident that caused them embarrassment, she made sure that they were not seen in
public with Galen dressed as a woman.
In addition, the court noted the expert testimony of the court-appointed evaluator, whose
testimony did not really support the trial court’s
Lesbian/Gay Law Notes
conclusion that Diana could not provide necessary psychological support for the children.
The court of appeals determined that the
threshold finding of changed circumstances
had not been met, and thus the trial court’s decision had to be reversed.
However, the court also noted that given the
time that had passed since the trial court’s order, during which the children had been living
with Brian, it was possible that circumstances
had changed again. The court ordered that on
remand the trial judge hold a new hearing into
an issue highlighted by the evaluator’s report:
whether the children’s expressed discomfort
about Galen was really a reaction to their father’s adverse reaction to Galen’s sex reassignment, or whether it was internally generated. If
the later, the court seemed to feel there might be
grounds to let custody rest with the father, but
the court’s conclusions on this point are not ideally clear.
In any event, the opinion contains a rather
firm rejection of the idea that exposure of children to a transsexual friend of a parent could be
considered so detrimental to the child as to constitute changed circumstances or grounds for
modifying a custody decree. A.S.L.
New Connecticut Decisions Differ on Enforcement
of Gestational Surrogacy Agreements Involving
Gay Male Couples
Different Connecticut trial judges issued decisions on July 9 and July 10 in lawsuits seeking
full enforcement of gestational surrogacy agreements between gay male couples and married
women who had agreed to bear children for
them. The first, Judge Richard M. Marano, relying on a recent decision by yet another Connecticut trial judge, enforced the agreement in
Cassidy v. Williams, 2008 Westlaw 293059
(unpublished opinion), and ordered that the
Department of Public Health (DPH) issue birth
certificates naming the two men as parents of
the twins whose delivery was due later in July.
The second, however, Judge John D. Boland,
found in Oleski v. Hynes, 2008 Westlaw
2930518 (unpublished opinion), that Connecticut law required that the non-biological
father go through the process of adoption in the
probate court in order to be listed on the birth
certificate as the father of a child to whom he
was not biologically related. The second couple
was also expecting their child to be delivered
this summer.
These different results arise partly because a
recent amendment to the Connecticut law governing birth certificates, which specifically
mentions gestational surrogacy contracts, does
not go into effect until October 1 of this year,
leaving the courts to try to determine how to
handle this situation in light of prior statutes
that make no mention of such agreements. In
addition, the DPH, which plays the crucial role
Lesbian/Gay Law Notes
in issuing birth certificates, has taken the
firm position that only biological or adoptive
parents should be listed on the certificates.
The gay male couples, however, have taken
the position that under the surrogacy agreements, both of them are “intended parents” of
the child or children and, as such, both should
be listed on the birth certificates without need
for the non-biological parent to go through an
adoption proceeding.
In the earlier decision, Griffiths v. Taylor,
2008 WL 2745130 (Conn. Super. Ct., June 13,
2008), Judge Lloyd Cutsumpas concluded that
the legislative history of the existing birth certificate statute and its predecessors would support the conclusion that Connecticut now has
three authorized ways to achieve parenthood:
biological procreation, adoption, or being an
“intended parent” under a gestational surrogacy agreement. Cutsumpas found no public
policy reason to refuse to enforce a gestational
surrogacy agreement that seemed to him on its
face to be fair, where none of the parties to the
agreement were resisting enforcement, and
only the DPH was objecting, arguing that there
was no specific statutory authorization for what
the plaintiffs were seeking and that a birth certificate could not be used to confer parenthood
on someone who was neither a biological nor an
adoptive parent of the child.
In Cassidy, Judge Marano described the
somewhat unusual circumstances of the case.
The gay male couple, Aidan Cassidy and Charles Teti, had contracted with Dedra Williams
and her husband LeRon. Cassidy and Teti
wanted to have twins, each conceived with the
sperm of one of them and a donated egg. They
obtained eggs (from a source not revealed to the
court), and two eggs were implanted in Dedra,
one fertilized with Cassidy’s sperm and the
other with Teti’s sperm. The implantations were
successful, and Williams was due to give birth
to twins. Both men sought to be named as parents on the “replacement birth certificate” that
DPH would issue upon a court order for each of
the children. Connecticut law requires that the
original birth certificate contain the name of the
birth mother, Dedra Williams, who is not biologically related to the children, and the father,
if known. The Superior Court is authorized by
statute to order the DPH to issue a replacement
certificate naming the legal parents of the child.
In this case, as in Griffiths, DPH balked at issuing replacement certificates without proof as
to which man was the biological parent of which
child, and then would only list the biological
parent of each child, taking the position that the
other parent would have to obtain an adoption
order from the probate court.
Judge Marano, stating agreement with Judge
Cutsumpas’s reasoning, ordered that DPH issue the certificates at the appropriate time
naming both Cassidy and Teti as parents of each
of the children.
September 2008
But on July 10, Judge Boland issued his ruling in Oleski, rejecting the approach of Judge
Cutsumpas and ruling that there are only two
ways to become a legal parent in Connecticut,
not three. Boland found that current Connecticut statutes do not mention gestational surrogacy, and that existing statutes and cases rejected the concepts of “equitable” or
“intended” parents. He pointed out that the
legislature has specifically authorized the
adoption of children by a biological parent’s
unmarried same-sex or different-sex partner,
which clearly established, in his view, that the
legislature desired partners to be able to become parents only through the careful process
of an adoption proceeding in the probate court,
which would include a finding that the adoptive
parent is a fit person to assume that role and it is
in the child’s interest to establish that legal relationship.
Boland acknowledged that the legislature
passed an amendment that goes into effect October 1, adding a mention of gestational contracts to the statute, but the reference is cryptic,
the legislative history as to its meaning is
sparse, and it will not be in effect until after the
children affected by this case are born.
This case differs from both Griffiths and Cassidy in that Michael Oleski is the biological
parent of the twins whose delivery was expected
this summer, and his partner, Keith Nagy, is not
a sperm donor in this case, thus not biologically
related to either of the twins. Oleski and Nagy
are seeking a replacement birth certificate that
names both of them as parents, but DPH was
opposed to listing Nagy.
Boland wrote an extensive analysis of the
policy concerns leading to his conclusion that
the only way Nagy can be listed as the legal father of these children is through a probate court
adoption proceeding.
First, he stated concern about the interest of
the child, pointing out that under the Griffiths
opinion there would be no judicial determination that the “unrelated” parent is fit, or that it
would be in the child’s interest for him to be
named as a legal parent, as the court would
merely be inquiring into the regularity and the
fairness of the gestational surrogacy agreement.
Boland also points out that it is uncertain
whether other states would recognize the parental status, a particularly important point in
this case since Oleski and Nagy are residents of
Ohio. Whereas states routinely recognize adoptions performed in other states, since they are
the result of a considered judgment by a probate or family court that has inquired into the
fitness of the adoptive parent, would other
states give full faith and credit to parental status
secured solely through the enforcement of a private gestational surrogacy agreement that
might not even be enforceable under their own
state laws, and that might be directly contrary to
their laws on parental status?
165
Finally, Boland saw the recent legislation
authorizing co-parent adoptions to represent a
policy determination by the legislature that
co-parents should be allowed to establish parental rights, but only through a deliberative
process in the probate court as a protection of
the best interest of the child. He pointed out
that step-parents, who may have known and
cared for a child from birth, are required to go
through this probate court process to become
legal parents, and thought it appropriate that a
co-parent under a gestational surrogacy contract should have to go through the same vetting
process before being named a legal parent.
Thus, Boland ordered that upon the child’s
birth, Oleski and surrogate Hynes be listed on
the birth certificate. A replacement certificate
could be issued listing just Oleski, but Nagy
could not be named as a parent of the children
until he submitted to the adoption process.
There is a pressing need here for some clarity, as it appears from the nearly simultaneous
appearance of three Connecticut cases involving gay couples that Connecticut’s general receptiveness to enforcing gestational surrogacy
contracts as evidenced by numerous prior decisions involving married couples contracting
with women to bear children for them has made
the state a favored jurisdiction for such agreements. (By contrast, some other states have
been quite hostile to such agreements, and New
York has a statute outlawing compensated surrogacy.) Either the Connecticut legislature
should further amend the statute to spell out
unambiguously how these situations are to be
dealt with, or an appellate court needs to issue a
clarifying opinion, which is most likely to happen if Oleski and Nagy appeal Judge Boland’s
ruling. A.S.L.
Florida High School Principal’s Anti-Gay “Witch
Hunt” Loses Lawsuit
U.S. District Judge Richard Smoak of Panama
City, Florida, issued an opinion on July 24, explaining his ruling on May 15 in favor of
Heather Gillman, a student who had sued the
Holmes County, Florida, School Board over
their prohibition of pro-gay rights expression at
Ponce De Leon High School. Gillman v. School
Board for Holmes County, Florida, 2008 WL
2854266 (N.D. Fla.). Judge Smoak found that
David Davis, the school’s Principal, had responded to an incident of anti-lesbian harassment by some students by launching a “witch
hunt” and discouraging students from showing
solidarity with gay students at the school.
Smoak also found that the school board should
bear liability because it had ratified and
adopted Smoak’s actions as its own.
Last September, a 12th grade student identified in the opinion as Jane Doe reported to a
teacher’s aide that a group of five middle school
students had been taunting her about her sex-
166
ual orientation. The teacher’s aide reported the
incident to Principal Davis, who called the student into his office, quizzed her about the incident and her sexual orientation, and then told
her that it was not “right” to be homosexual. He
asked whether her parents knew about her sexual orientation, and when she said no, he telephoned them and told them. As a result, the student’s father threatened to kick her out of the
house.
The next day, the student was absent because
her sister had surgery, but rumors swept the
school that she had been suspended for being
gay, and other students resolved to show their
support by wearing pro-gay slogans on their tshirts, circulating a petition, and carrying signs
with pro-gay messages. This was followed a few
days later by rumors that Davis had invited an
anti-gay preacher from a local church to speak
to an assembly, and students began devising a
plan to walk out in protest. In the event, the
preacher said nothing about homosexuality in
his talk and there was no walk-out, although
students had been threatened by Davis that he
would not tolerate any walk-out on his guest
speaker.
After the assembly, Davis launched an investigation of what the pro-gay activities that were
bubbling up at the school, interrogating thirty
students about their sexual orientation and issuing a prohibition against any exhibition of
pro-gay slogans or messages at the school. Over
the course of several days, Davis suspended
eleven students, including a lesbian cousin of
the student who became the plaintiff in this
case, Heather Gillman, for their involvement,
and told the mother of one student who was suspended that he could secretly “send her
[daughter] off to a private Christian school
down in Tallahasseeo or to juvenile detention,
and that “if there was a man in your house, your
children were in church, you wouldn’t be having any of these gay issues.”
When students complained to the school
board, it backed up Davis, reiterating his ruling
against any pro-gay communications at the
high school. Heather Gillman was fed up with
what was going on, contacted the American
Civil Liberties Union, and agreed to be the
plaintiff for a lawsuit. Heather, by the way, is not
gay, but was eager to show her support for her
cousin and other gay students and was offended
by the censorship of speech at her school.
Depositions and hearing testimony brought
to light that Principal Davis considers himself
an “evangelical Christian” and has strong religious objections to homosexuality, and believed it was appropriate for him to actualize
those objections through his authority at the
school, a point with which Judge Smoak sharply
disagreed.
Under established First Amendment principles, high school students have a right to engage in political speech that is not disruptive of
September 2008
the educational program. Davis and the school
board claimed they were acting to prevent disruption, but Smoak determined that the only
disruption came in response to Davis’s crackdown on pro-gay speech. The student activities
in support of Jane Doe and then of the other gay
students at the school were not disruptive, according to Smoak, or at least no more so than the
usual run of topics that might cause controversy
at school.
While stating that he was “sensitive to the
challenges to order and discipline that teachers
and adminstrators are forced to confront each
day,” Smoak nonetheless found that nothing
presented by the defendants in this case justified the actions they took to suppress free
speech at Ponce de Leon High School. Characterizing the facts in this case as “extraordinary,” he wrote, “The Holmes County School
Board has imposed an outright ban on speech
by students that is not vulgar, lewd, obscene,
plainly offensive, or violent, but which is pure,
political, and expresses tolerance, acceptance,
fairness, and support for not only a marginalized group, but more importantly, for a fellow
student at Ponce de Leon. The student, Jane
Doe, had been victimized by the school principal solely because of her sexual orientation.
Principal Davis responded to Jane Doe’s complaints of harassment by other students, not by
consoling her, but by shaming her. David interrogated Jane about her sexual orientation, informed her parents that she identified as homosexual, warned her to stay away from other
students because of her sexual orientation,
preached to her that being homosexual was not
‘right,’ and ultimately suspended her for expressing her support for herself and other homosexual students.”
Smoak quoted at length from a decision by
the U.S. Court of Appeals for the 9th Circuit,
Harper v. Poway Unified School District, 445
F.3d 1166 (9th Cir. 2006), vacated as moot, 127
S.Ct. 1484 (2007), setting out extensive evidence for the detrimental effect on gay students
of suffering demeaning comments from their
peers, teachers or administrators. He concluded that “it is clear that Principal Davis, not
the innocuous symbols and phrases at issue,
bears sole responsibility for any unrest that occurred at Ponce de Leon in September 2007.”
He characterized Davis’s activities as a “relentless crusade” and a “witch hunt.”
Showing that this lawsuit was about principle, not money, Gillman sought only symbolic
damages but wanted, more importantly, an injunction against the suppression of free speech
at Ponce de Leon, which Smoak awarded to her
in addition to nominal damages of $1.00. In addition, he awarded over $300,000 in attorneys
fees to the plaintiffs, an expensive lesson in
constitutional rights for the school board. One
wonders whether the school board retains
counsel, and whether its counsel took and
Lesbian/Gay Law Notes
passed constitutional law in law school, since
the principles Judge Smoak applied in this case
have been well-established since the Supreme
Court ruled in 1969 in favor of students who
wanted to wear black armbands at a high school
in Des Moines to protest the Vietnam War.
A.S.L.
9th Circuit Rejects Challenge to Oregon
Referendum Signature Verification Process;
Upholds Decision to Bar Repeal Initiative of
Domestic Partnership Law
A unanimous three-judge panel of the U.S.
Court of Appeals for the 9th Circuit ruled
August 14 that Oregon state officials had not
violated the constitutional rights of individuals
who claim to have signed petitions for an initiative repeal of the state’s domestic partnership
law. The alleged signers claimed that there
were flaws of constitutional dimension in the
process used by the state officials to verify
whether there were sufficient valid signatures
to qualify the initiative for the ballot. Lemons v.
Bradbury, 2008 WL 3522418.
The Oregon legislature passed the domestic
partnership bill in 2007. Under the Oregon
constitution and statutes, those seeking to put a
newly-passed law up for public vote need to
move quickly, submitting petitions containing
valid signatures of registered voters at least
equal in number to four percent of the total
votes cast in the most recent election for governor. In this case, the initiative backers needed
to submit 55,179 valid signatures. They submitted petitions bearing approximately 62,000
signatures to the state’s Secretary of State, who
then implemented the procedures that have
been established by statute for verifying the
signatures.
Under those procedures, a random selection
of 5 percent of the signatures is sent out to
county election officials for individual verification that signatures match those on file in voter
registration cards. The local officials are instructed to compare signatures and reject those
that don’t match, which an internal review process in each county for a higher level officials to
verify each rejected signature, essentially
bringing an additional pair of eyes to bear on
the visual match with the voter registration
card. The proportion of rejected signatures is
then used to estimate the proportion of submitted signatures that are valid.
Using this process, the Secretary of State’s
office projected that there were 55,083 valid
signatures, slightly fewer than one hundred
short f the required number, and declared that
the measure failed to qualify for the ballot.
The initiative proponents screamed foul,
claiming that valid signatures had been rejected and that signers whose signatures had
been rejected had not been notified and offered
the opportunity to challenge the disqualifica-
Lesbian/Gay Law Notes
tion of their signatures a procedure that the
state follows in the case of absentee voters
whose ballots are challenged when the signature on their absentee ballot form is checked
against the voter registration cards before the
ballot is opened for counting. The procedures
established by the state do not require this additional step in the case of initiative petitions,
which the initiative proponents challenged as a
violation of their constitutional rights.
Alliance Defense Fund filed suit on behalf of
initiative proponents and a group of selfdescribed “disenfranchised voters,” and got a
temporary delay in the implementation of the
domestic partnership law from federal district
judge Michael Mosman while he was considering the potential validity of their claim. But
Judge Mosman determined that they did not
stand a good enough chance of prevailing on the
merits to justify extending the injunction, and
he allowed the law to go into effect on February
1 of this year after a one month delay, denying
the request for permanent injunctive relief, and
the plaintiffs appealed.
Writing for the court, Judge Alfred T. Goodwin acknowledged the plaintiffs’ argument that
voting is a fundamental right, but found that
this did not mean that the state had to undertake all the procedures demanded by the plaintiffs in the signature verification process. The
Supreme Court has evaluated challenged election procedures in the past, and has rejected the
kinds of arguments that the plaintiffs were making in this case, particularly their argument that
the standard for evaluating Oregon’s procedures is strict scrutiny, which would require the
state to prove that everything they do was necessary to effectuate a compelling governmental
interest.
In a series of election cases, including some
very recent ones, the Supreme Court has held
that “subjecting every election law to strict
scrutiny ‘would tie the hands of States seeking
to assure that elections are operated equitably
and efficiently,’” Goodwin wrote, pointing out
that the only cases in which the Supreme Court
used strict scrutiny were cases where local
rules discriminated among voters based on
where they lived or violated the “one person,
one vote” principle. In other cases, the Supreme Court has applied a test of reasonableness in evaluating election procedures.
The court found that Oregon’s procedures are
reasonable under the circumstances. Due to the
time constraints of the process, a sampling
method is the only practical way to verify large
numbers of signatures, especially when there
may be several proposed initiatives that have to
be evaluated simultaneously. Furthermore, the
court saw good grounds for excluding extrinsic
evidence and not requiring officials to contact
voters if their purported signatures are disqualified, while taking those further steps with
absentee ballots. In the initiative setting, peti-
September 2008
tioners, in many cases canvassers paid by the
signature, are out collecting signatures, and the
likelihood is that there will be a significant
number of invalid signatures to deal with. By
contrast, in the case of absentee ballots, they
are distributed to registered voters to be completed and returned, so the number of cases
where a non-matching signature would generate concern would be relatively small and it
would be manageable to quickly contact the
voter and determine whether the ballot received in their name was genuine.
Interestingly, during the hearing of this challenge the state employed a handwriting expert
who reviewed 556 of the signatures that county
officials had verified as matching voter records,
and found 65 that she would have rejected as
non-matching. She also reviewed all of the signatures that county elections officials rejected
as non-matching, and found only six instances
where disagreed. Thus, had the handwriting expert been performing this process rather than
the elections officials, the initiative would have
fallen short by a slightly larger margin.
The plaintiffs also made an argument based
on the Supreme Court’s decision in Bush v.
Gore, which halted the Florida presidential recount in 2000, claiming that there was an
Equal Protection violation based on nonuniformity of standards among the county elections officials in performing the verification
process. Goodwin rejected this argument by
noting that the state had enacted uniform procedures, and provided training on signature
verification to county election officials. Furthermore, this was a simple case of comparing
signatures, whereas in the Florida situation
there were lots of difficult judgment calls involving “hanging chads” and “dimpled chads”
and different ballot designs to interpret across
the state. The Supreme Court had insisted in
Bush v. Gore that it’s ruling was for that case
only, not to be treated as a precedent for other
election challenges, and the 9th Circuit panel
was not inclined to do so here.
Thus, the Oregon domestic partnership bill
will not be put up to a public vote unless there is
further review in this case, since the state constitution sets a strict time limit for initiatives
challenging legislation. A.S.L.
Federal Judge Orders Florida High School to
Recognize GSA
U.S. District Judge K. Michael Moore has ordered the School Board of Okeechobee County,
Florida, to allow a Gay-Straight Alliance to
meet at Okeechobie High School on the same
basis that other non-curricular groups meet at
the school.
In a July 29 ruling in Gonzalez v. School
Board of Okeechobee County, 2008 WL
2941155 (S.D.Fla.), Moore found that allowing
the student group to meet at the school would
167
not necessarily contradict or undermine the
school’s sex education curriculum, which
stresses abstinence outside of heterosexual
marriage, and that the School Board’s official
written policy banning any club based “any
kind of sexual grouping, orientation, or activity
of any kind” violates federal law. Perhaps most
significantly, Moore noted that the School
Board has an obligation for the welfare of gay
students, not just the majority of students.
Students at the high school sought to form a
Gay-Straight Alliance during the Fall 2006
term, but were rebuffed by the administration,
even after the students specifically raised the
issue of the Equal Access Act, a federal statute
under which almost every lawsuit seeking recognition for a Gay-Straight Alliance has been
won by the students. The students filed suit,
represented by the ACLU of Florida, and obtained preliminary injunctive relief, but as happens in such litigation, cases drag on, students
graduate, and bringing the case to a conclusion
can become problematic. In this case, the federal judge determined at one point that there
were no actual plaintiffs left, and the case was
on the verge of dismissal, but new student
plaintiffs were found and the matter was revived last spring, when despite the prior injunction, the administration again rejected an
attempt by students to form a GSA.
Judge Moore totally rejected the School
Board’s argument that recognizing a GSA
would somehow violate the school’s obligation
under state curricular standards and federal
law governing the use of federal funding grants.
Both the federal government and the state of
Florida are formally committed to the head-inthe-sand approach advocated by right-wing
Christian groups in approaching sex education
for high schoolers. The approach focuses on abstinence, lecturing students about refraining
from any non-marital sex, and avoiding classroom discussion of contraception or abortion.
The School Board argued that allowing a
GSA to form would be contrary to this curricular
mandate, but Judge Moore was not convinced.
First, he quickly dispensed of the School
Board’s absurd argument that it would lose federal funding if it allowed a GSA to form, pointing out that over 700 high schools in the U.S.
have such student organizations, and there is no
evidence that any of those schools have lost any
federal funding as a result. Actually, he noted,
the Supreme Court has recognized a clear distinction between curricular and non-curricula
activities in a variety of contexts, including
cases in which schools argued that they should
not be required to allow certain student groups
because that could be misconstrued as endorsement of those groups’ agendas. “If secondary school students are considered sophisticated enough to distinguish between student
speech permitted on a nondiscriminatory basis
and officials acts of the school,” wrote Moore,
168
“it follows that Congress, in its provision of federal funds to the states, is capable of drawing
the distinction as well, as are Florida’s courts.”
Moore also could see no inconsistency between the GSA’s mission to promote tolerance
for gay people and the school’s abstinence-only
health education program, rejecting the idea
that “the dialogue required to discuss tolerance
towards non-heterosexuals is impossible to
convey without doing violence to the principle
of abstinence.” Moore argued that if this were
true, then any discussion of sexual issues in the
curriculum could be seen as undermining the
abstinence policy, but the School Board “has
pointed to no special factor pertaining to tolerance towards non-heterosexuals that distinguishes that topic from other matters concerning sexuality generally.” He also rejected the
notion that advocating tolerance for those who
are not heterosexual is inconsistent with the abstinence program, concluding that forbidding
the GSA was not required to protect the wellbeing of the district’s students.
Indeed, Moore pointed out that the abstinence program, when applied to gay people,
“loses the core of its health and safety and child
welfare component because a marriagedependent abstinence only message is of de
minimus relevance to non-heterosexuals,”
since Florida does not allow same-sex marriage. “The benefits that accrue to children
with married parents are of little use to SBOC’s
non-heterosexual students who may aspire to
parenting but lack the prospect of a legally
sanctioned marriage in the State of Florida,” he
continued. “The considerations pertaining to
the benefits of marriage prior to procreation
likewise lack relevance to SBOC’s nonheterosexual students who are not permitted to
marry in Florida.”
He also noted that instruction about
sexually-transmitted diseases was relevant to
all students, but “an STD prevention curriculum reliant on abstinence outside of marriage
does not provide information of a kind usable
by non-heteroseuxals to prevent disease,” and
“teaching that ‘a mutually faithful monogamous relationship in the context of marriage is
the expected standard of human sexual activity’” as required by the Florida abstinence only
curriculum, “is not a principle of relevance to a
non-heterosexual person.” While conceding
that Congress, the Florida legislature and the
School Board had all put their imprimatur on
this kind of program, Moore described it as being “of limited utility to OHS’s nonheterosexual students, the well-being of whom
must also be considered,” and concluded that
any inconsistencies could not be used to deny
recognition to the GSA, since the Equal Access
Act, by its terms, supersedes all other federal
laws that might be deemed inconsistent with it.
Moore noted that under the Equal Access
Act, the only way that SBOC could exclude a
September 2008
GSA would be to exclude all non-curricular
student groups, and that it could not pick and
chose based on the subject matter of the group,
unless there was a legitimate justification
based on the well-being of the students. In this
case, however, Moore emphasized that the
well-being of non-heterosexual students was
also relevant, and denying them a GSA was not
in their best interest.
Moore also found support for his conclusions
in the First Amendment, and the body of cases
dating back to the Vietnam War era holding that
high school students have a right to engage in
non-disruptive political speech at school.
Moore found that “the GSA’s tolerance based
message would not materially or substantially
interfere with discipline in the operation of the
school,” so the School Board’s desire to avoid
the “discomfort and unpleasantness of tolerating a minority of students whose sexual identity
is distinct from the majority of students and discordant to SBOC’s abstinence only program”
was not a legitimate justification to ban the
GSA.
Moore awarded token damages of $1 to the
plaintiffs, since no evidence was introduced to
support any actual monetary damages, but he
also declared the plaintiffs to be the prevailing
party, which means they can pursue an award
for their litigation expenses. A.S.L.
N.J. Appellate Division Revives Gay
Discrimination Claim Against Merrill Lynch
On August 13, the Appellate Division of the Superior Court of New Jersey reinstated a gay
man’s claims for wrongful termination, hostile
work environment and intentional infliction of
emotional distress after the lower court had disposed of them in summary judgment. Kwiatkowski v. Lynch, No. A–2270–06T1
(N.J.App.Div.) (Unpublished decision)..
Darren Kwiatkowski was fired from his position at Merrill Lynch after his direct supervisor,
Theresa Wonder, reported him to her own supervisor, Sandra Givas. It is Wonder’s alleged
bias that forms the crux of this case, as Kwiatowski claims she was hostile toward gays and
called him a “stupid fag.” Givas, the person
who actually fired the plaintiff, did not show
bias at any time, and was probably unaware of
Kwiatowski’s homosexuality. At the center of
the issue is whether employers and individuals
can be held liable for decisions made based on
bias, when the person making the ultimate decision is not the biased party.
Kwiatowski was hired in the call center of
Merrill Lynch in January 2001 as an at-will employee answering incoming phone calls from
clients. He was also utilized in other areas due
to his expertise. Kwiatowski believes that his
homosexuality was well known in the company.
Although he directly told very few people, he
joined the Merrill Lynch gay employee associa-
Lesbian/Gay Law Notes
tion and discussed his sexuality with a few coworkers.
Up until September 3, 2003 he was supervised by several individuals who all gave him
generally excellent performance reviews.
Theresa Wonder then became Kwiatowski’s supervisor, and he alleges that between November
5th and the time of his termination she began to
take away his duties, publicly criticize and berate him about his performance, and create a
record against him to portray him as an unsatisfactory employee. Other employees also perceived that he was treated unfairly. During this
period, he also began having panic attacks and
sought treatment from a psychiatrist.
Several incidents occurred that indicated
that Wonder did not care for Kwiatowski. During the holiday season, Wonder gave him a
“joke-a-day” calendar that referred to inappropriate body parts and functions. Several times
he was yelled at by Wonder in front of coworkers, though neither he nor the other coworkers
could determine what he had done wrong. On
Dec 23 Wonder reported to the Human Resources department that plaintiff’s attitude was
horrible and that his performance was “very
poor,” and was told to discuss plaintiff’s problems with him. It is not clear if this discussion
ever happened, but Wonder asked that a verbal
warning be issued immediately, claiming she
had already spoken with him regarding the
matter.
On Dec. 29, the “firing event” happened a
“Code Red” indicating high call volume was
called, requiring all representatives to take
calls as opposed to attending to other tasks.
Plaintiff was helping a client through a problem
that he had been dealing with since the previous week, and discussed how to deal with the
problem while following the “Code Red” protocol with Wonder. Both agreed that he would pull
the client’s file in the morning so that he could
focus on the high number of calls coming in, but
first would call the client and tell her the problem would be dealt with the following day. Before making the phone call, Kwiatowski thought
it necessary to see if any progress had been
made on her case, and also faxed a document he
considered urgent. These tasks took approximately 25 minutes. Upon learning of Kwiatowski’s behavior, Wonder wrote an angry email
to him, and then spoke to Sandra Givas about
Kwiatowski’s “insubordination.” Wonder and
Givas discussed the incident, and based on
Wonder’s supply of information it was decided
that after speaking to Human Resources and
the legal department, Givas would fire him. It
isn’t noted whether the legal department is usually consulted prior to terminating an employee
or if there was a specific question regarding the
legality of firing Kwiatoski in particular.
During the several days between this meeting and Kwiatowski’s termination, the tense
working conditions grew worse, culminating in
Lesbian/Gay Law Notes
an altercation during which Kwiatkowski alleges that Wonder called Kwiatowski a “stupid
fag” under her breath. On the following working day, Givas called Kwiatowski into her office
and fired him.
The lower court granted summary judgment
in favor of Wonder and Merrill Lynch on the
wrongful termination claim, based mostly on
the fact that Givas, as the individual who made
the ultimate decision to fire Kwiatowski, did
not know of his sexual orientation and even if
she did, had not shown any bias. Disposing of
the hostile work environment claim as well, the
court said that while a supervisor calling their
employee a “stupid fag” was offensive and derogatory, it did not rise to the level needed to
make the work environment hostile. Kwiatowski’s claim for intentional infliction of emotional distress was similarly found lacking, because Wonder’s behavior was not considered
“outrageous” enough by the court.
The Appellate Division noted that there is a
growing trend towards holding employers liable
for the biased actions of subordinate employees
who affect decisions by higher-up supervisors.
The opinion discusses the three emerging standards of proof required for these cases to withstand summary judgment in wrongful termination suits: the pretext standard, the
mixed-motive standard, and an intermediate
standard that the court ultimately adopted in
this case. The standards deal primarily with the
allocation of the burden of proof.
The pretext standard is discussed but not
utilized by the case, and essentially puts the
burden on the plaintiff to refute an employer’s
claims that the adverse action was not motivated by bias. The mixed-motive standard allows the plaintiff to produce evidence of discrimination, and then the burden shifts to the
employer to show that it would have made the
same decision had the bias not existed. The
lower court apparently focused on this standard, which they determined the plaintiff did
not meet because in a mixed-motive analysis
the evidence of discrimination must be severe
and pervasive. Evidently being called a “stupid
fag” by a superior was deemed by the trial court
to be an ancillary and isolated incident rather
than severe, and the lower court granted summary judgment to Wonder and Merrill Lynch
based on lack of evidence showing discrimination. The lower court also stressed that the comment itself did not seem to be related to the decision to fire Kwiatowski, because it was not
made by or in the presence of Givas, the individual who made the final decision.
Finally, the Appellate Division discusses and
applies the intermediate standard. The most
straightforward of the three, it simply asks
whether a biased subordinate’s reports, recommendation, or other actions based on bias effectuated the adverse employment action. The
court finds that because neither Givas nor the
September 2008
Human Resources department undertook their
own investigation of Kwiatowski, it is irrelevant
whether they were biased themselves, as all the
information they relied upon was tainted by
Wonder’s alleged discriminatory reports. The
Appellate Division determined that being
called a “stupid fag” by a work supervisor rises
to the necessary level of biased behavior to
show that discrimination may exist. While it
might have been an isolated incident, the comment shows evidence of bias on Wonder’s part.
Coupled with the fact that Kwiatowski was an
“excellent” employee, a jury could conclude
that the termination was wrongful.
Kwiatowski’s hostile work environment
claim also is reinstated, based on the reasoning
that Wonder’s “stupid fag” comment and other
behavior was outrageous and offensive enough
to make the work environment hostile and
could reasonably have led Kwiatowski to believe that the terms of his employment had materially changed. The claim for intentional infliction of emotional distress was also
resuscitated for similar reasons, based on the
Appellate Division’s view that Wonder’s behavior did in fact constitute outrageous behavior
that is considered unacceptable in a civilized
society.
This ruling paves the way not only for Kwiatowski’s claims, but for further evolution of the
law to reflect the increasingly tiered corporate
structure. Several federal circuit courts have already followed the reasoning that a corporate
entity can be held liable for bias that occurs at
lower levels of management but colors decisions made higher up.
While this case has perhaps the most impact
on wrongful termination claims against hierarchical corporations, the court also set a potentially important precedent that even isolated
derogatory comments can be evidence not only
of bias, but also create a hostile working environment. However, the court designated the decision as unpublished, thus not citable as a
precedent, for no apparent reason. Stephen
Woods
Connecticut Court Orders Revised Birth Certificate
Listing Two Fathers in Gestational Surrogacy Case
Connecticut Superior Court Judge Lloyd Cutsumpas ordered that two gay men from New
York who contracted with a Connecticut woman
to be their “gestational surrogate” are entitled
to have only their names listed as parents on the
final birth certificate to be issued upon the birth
of their child. Griffiths v. Taylor, 2008 WL
2745130 (Ct. Super. Ct., June 13, 2008) (not
officially published).
Ruling on a question lacking any direct appellate precedent in the state, Judge Cutsumpas rejected the Health Department’s argument that the men should have to submit to
genetic testing to determine who is the genetic
169
father of the child, and that the other father
should have to adopt the child through a
second-parent adoption procedure after it is
born. Instead, he ruled, an “intended parent”
under a gestational agreement, including one
who may not be genetically related to the child,
could become a legal parent by being listed on
the birth certificate.
Peter Griffiths and Angel Naranjo are, according to the court’s opinion, “registered domestic partners in the State of New York.” They
wanted to have a child who was genetically related to both of them. Naranjo’s sister donated
an egg to be fertilized by Griffiths’ sperm, and
Griffiths’ niece donated an egg to be fertilized
with Naranjo’s sperm. Both of the resulting embryos were implanted last November in Kenisha Taylor, a Waterbury, Connecticut, resident,
who contracted with the two men to be their gestational surrogate. One viable fetus resulted. As
part of the agreement, Taylor promised not to
engage in sexual intercourse for a specified period of time to ensure that the child would be
conceived from one of the implanted embryos.
She says she kept her promise, so the fetus is
not genetically related to her.
Because Griffiths and Naranjo want in every
sense to be considered equal parents of the
child, they have refrained from any genetic
testing to determine which of the embryos has
developed into the fetus. Whichever it is, they
will both be related genetically to the child due
to the cooperation of their female relatives in
this project.
Under Connecticut law, a hospital is obligated to file a birth certificate naming the
woman who bore the child as the mother as soon
as a child is born. Connecticut statutes also provide, however, that a court may order the Health
Department to issue a replacement birth certificate listing the child’s legal parents. Upon the
replacement certificate being issued, the original certificate is sealed and the replacement
certificate becomes the formal legal documentation of the child’s birth and family status.
Anticipating the birth of their child during
the summer of 2008, Griffiths and Naranjo filed
suit in the Waterbury District of the Circuit
Court on March 4, 2008, to get the requisite
court order for a replacement birth certificate
naming the two of them as the parents of the
child. Taylor, the hospital and the state Health
Department were named as nominal defendants. Unexpectedly, they encountered opposition from the Health Department, which argued
that because a birth certificate is required to be
an “accurate” public record, “only biological
or adoptive parents can have their names
placed on birth certificates.” The Department
argued that genetic testing is necessary to determine whether Griffiths or Naranjo is the biological father, and only that father can be listed
on the certificate by order of the court in the absence of an adoption proceeding by the other fa-
170
ther. After an adoption proceeding, a third birth
certificate would be issued with the names of
the child’s legal parents as a result of that procedure.
Griffiths and Naranjo objected to this process, and argued that the existing law authorizes the court to declare them the “intended
parents” to be listed on the replacement birth
certificate. A recently-enacted Connecticut
statute would support this conclusion, but it
was enacted so recently that it does not go into
effect until October 1, 2008, and the child’s
due date was before then, leaving the court to
fall back on interpretation of earlier statutes.
“This court of equity is left to fashion a remedy
for the litigants using what statutes and previously decided cases are available regarding
this evolving subject matter,” wrote Cutsumpas.
The Connecticut legislature has been tinkering repeatedly with the statute governing birth
certificates, trying to keep up with evolving social trends but always being at least a step behind. Acknowledging the increasing phenomenon of children being born through new
reproductive technology, donor insemination,
and various forms of surrogacy, the legislature
decided in 2001 to set up a process by which an
initial record is created listing the birth mother,
regardless of her genetic relationship or lack
thereof to the child, as a purely historical documentation of the actual birth, and filed with the
Health Department to serve as the official record until replaced.. Then the legislature provided for the device of the replacement birth
certificate, which would require a court order
directing the Health Department to issue the
new certificate and seal the record of the old
one. From the date of its issue, the replacement
certificate (which would appear, to all purposes, to be the original birth certificate) would
serve all legal functions of a birth certificate.
The first version of the statute as initially
drafted in 2001 made explicit references to
gestational surrogacy situations, but for some
reason those references were dropped from the
final version of the statute, which resulted in
ambiguities that were only partially addressed
in subsequent amendments. It was not until a
2008 amendment, the one that goes into effect
on October 1, that an explicit reference to gestational surrogacy appears. However, in reviewing the legislative history, and the earlier court
decisions interpreting prior versions of the statute, it was clear to the judge that the legislature
intended to allow the replacement certificate to
be used to establish a legal birth record for this
kind of case.
Almost all of the prior gestational surrogacy
cases, however, involved “intended parents”
who were heterosexual couples, at least one
(and usually both) definitely the genetic parent
of the child. “In the present case,” Judge Cutsumpas acknowledged, “the department dis-
September 2008
tinguishes these aforementioned cases on the
ground that the plaintiffs here are a homosexual
couple. The department… maintains that to be
considered a parent of the child, that person
must either have conceived the child, meaning
here that the results of a genetic test indicate a
ninety-nine percent or greater probability that
at least one of the plaintiffs is the father of the
child, or adopted the child. The department asserts that because it is impossible for both
plaintiffs to be a parent of the unborn child under this definition, and because no genetic
marker test has been performed to reveal the
biological father, neither of the plaintiffs can be
adjudged to be a parent of the unborn child or
be named as a parent on a replacement birth
certificate.”
The Department also argued that “despite
Taylor’s testimony that she adhered to the terms
of the contract and abstained from sex during
the time period surrounding the conception,
she may have been impregnated by another
party altogether, and therefore, a genetic
marker test should absolutely be required to
confirm the biological father.”
Responding, the plaintiffs pointed out that
there was at least one prior unpublished trial
court decision in a case like theirs where the
court had ordered that two men be listed as parents on the replacement birth certificate with
no indication in the court’s opinion that genetic
testing or an adoption was required. Unpublished trial court opinions are not binding legal
precedents, but Judge Cutsumpas found the
Department’s arguments to be “inaccurate” in
any case. He pointed out that there were prior
published Connecticut Supreme Court decisions supporting the general proposition that a
man does not invariably have to prove genetic
parentage in order for the courts to declare him
a legal parent. “It should be further noted,” he
wrote, “that on almost a daily basis, in our Magistrate Court and in our Superior Court, men
and women are declared to be parents of children without a genetic test. While it is true that
such tests can be ordered, it is not always the
case that they are ordered and often an acknowledgment of paternity will suffice.”
Looking at the 2007 version of the statute in
effect when this decision was rendered in June,
the court concluded that it “creates yet another
statutory manner in which parentage can be established: by being named as an intended parent in a gestational carrier agreement.” The
judge found this to be consistent with the legislative history of the original statute and its successive amendments, finding that the history
“clearly evinces that the legislature contemplated that intended parents, irrespective of
whether they are biologically related to the unborn child, can be adjudged the parents of the
child pursuant to the gestational carrier agreement and be named as the parents of a child on
Lesbian/Gay Law Notes
a replacement birth certificate by the Department of Health.”
The judge found it “unclear” why the Department insisted on a genetic test to list Griffiths or Naranjo, but seemingly had no objection to listing Taylor on the initial birth
certificate, even though she “has no genetic relationship to the child.” Indeed, if nobody applied for a replacement certificate, the only
name on the child’s birth certificate would be
Taylor’s. “This would be inaccurate information, in violation of what the department states
is the public policy underlying the vital records
statute,” Cutsumpas ironically observed.
He also pointed out that the argument about
Taylor possibly being a genetic parent could be
raised about all gestational surrogacy situations, yet the Department did not routinely call
for genetic testing when the intended parents
were a heterosexual couple, so it was being inconsistent here.
“It is clear that the public policy of the State
of Connecticut favors the issuing of orders regarding surrogate parentage,” Judge Cutsumpas concluded. “Our legislative history
and case law supports this view. The instant
case is not about the establishment of genetic,
or biological parents, but rather the establishment of legal or intentional parents. Names on a
birth certificate are not necessarily just an acknowledgment of paternity but can also establish legal responsibilities to a child. In this era
of evolving reproductive technology and intent
based parenthood, our laws must acknowledge
these realities and not simply cling to genetic
connections as preconditions to being placed
on a birth certificate.”
Finding that the gestational carrier agreement was “valid, enforceable, irrevocable and
of full legal effect,” Cutsumpas declared that
Taylor is not the parent of the unborn child, ordered that upon the child’s birth, Taylor be
listed on the initial certificate, and that the
Health Department then must issue a replacement certificate, “removing Taylor’s name and
naming Peter Griffiths and Angel Naranjo as
parents.” Now the question is whether the
Health Department will appeal, or whether it
will acquiesce in the court’s decision and follow this procedure in similar future cases.
Despite its June 13 date, the court’s opinion
did not surface on electronic databases until
mid-July. A.S.L.
New York Judge Lets AVA Defamation Suit Against
Epstein Continue
New York State Justice Walter B. Tolub of State
Supreme Court in Manhattan, ruled on June 24
in AVA a/k/a Maximilia Cordero v. NYP Holdings, Inc., 2008 WL 2522631, that Maximilia
Cordero, known professionally as AVA, may
prosecute her defamation suit against the New
York Post and several individual reporters for
Lesbian/Gay Law Notes
the publication of an article that quoted statements purporting to be her sexual fantasies
from a MySpace page. While dismissing most
of Cordero’s claims, Justice Tolub concluded
that there was enough ambiguity surrounding
the fantasy quotations that it should be up to
“the community” that is, a jury to decide
whether their publication was harmful to the
plaintiff’s reputation.
The lawsuit stems from an article by reporters Dareh Gregorian and Lucy Carne, both
named as defendants, published in the Post on
October 23, 2007, a version of which can be retrieved online, originally titled “Gender-Bend
Shocker, Kinky Sex Suit Gal is a Man.” From
the description of the article by Justice Tolub, it
appears that the version now available online
has been “cleaned up” a bit from what was
originally published in the newspaper.
The article reported on a lawsuit that Cordero
had filed against Jeffrey Epstein, a fabulously
wealthy Florida resident who has been prosecuted for having sex with underage girls. In that
lawsuit, Cordero alleged that Epstein had sexually molested her in his Manhattan mansion
when she was a minor. The Post reporters, finding this newsworthy, did some research on Cordero beyond reading the complaint filed in the
lawsuit against Epstein, and reported in the October 23 article that Cordero “was born Maximillian Cordero in 1983,” but had dressed as
female beginning at age 12 and had been taking
hormones to feminize her appearance. The article described her as a “model wannabe.”.
The reporters found several MySpace pages
purporting to be Cordero’s and to be presenting
her comments, although the pages differed in
identifying her sex and age. One of the pages
presented a “masturbatory fantasy” involving
“multiple men and then multiple women.” On
one of the pages, the writer describes herself as
“a 17 year old model from New York City” even
though Cordero was at least 23 when the newspaper article was published. The MySpace
page also says, according to the article, “I’m a
spoiled bitch and really mean. I love to have
fun, hang out and party! On and I’m a junk head
(pills, designer substances....).” Cordero
claims that much of the objectionable material
the reporters uncovered online was not by her.
After paring away various factual statements
that he found to have been accurately reproduced from Cordero’s early court complaint
against Epstein, such as the revelations that
Cordero was born male but always viewed herself as a girl, had been hospitalized with psychiatric problems, was a heavy drug user and
HIV+, Justice Tolub wrote, “As best as this
court can discern, two allegations remain in the
complaint which might be considered actionable. The first is that the Plaintiff was engaged
in some form of criminal conduct. The second
statement which may be actionable, pertains to
the claim that Plaintiff ‘was a promiscuous ly-
September 2008
ing slut.’” The version of the 2007 article now
available on the Post‘s website does not include
any such statement, and Tolub comments that
the Post never stated that Cordero is promiscuous, but readers might draw that conclusion
from the quotation about her sexual fantasies.
The first allegation was based on the quotation of a statement by Howard Rubenstein, described as “Epstein’s spokesman,” who observed that the ongoing investigations of
Epstein’s sexual activities had “made him an
easy target ‘for money-seeking lawyers and
their women.’” Cordero alleged that this statement accused her of criminal activity, but Tolub
was not willing to give it that interpretation.
“Although the statement of Mr. Rubenstein
does not reflect well on Ms. Cordero’s character,” wrote Tolub, “it does not go so far as to accuse her of criminality. In common parlance, it
is a stretch that this court believes is unwarranted, and as such cannot sustain a cause of
action for defamation.70
However, Tolub was not ready to dispense
with the other claim in ruling on a pre-trial dismissal motion. Cordero is claiming that she did
not write the material on the MySpace pages attributed to her by the Post in its article, alleging
that they are “forgeries posted by unknown
people,” according to Justice Tolub. He noted
that under New York law, “statements falsely
suggesting that a person is sexually promiscuous or sexually licentious are generally actionable per se.”
Tolub observed that the newspaper’s reporting of Cordero’s charges against Epstein did
“not detail the graphic allegations made in the
Epstein Lawsuit and never make any assertion
about Plaintiff being promiscuous or having indiscriminate sex with others.” However, the article mentions and quotes from “Plaintiff’s alleged sexual fantasies as posted on MySpace.”
So the question was whether Tolub would conclude, as a matter of law, that if those quotations
were spurious, they could be the basis for a libel
action because they were harmful to Cordero’s
reputation.
The way this works on a motion to dismiss is
that the court takes the first crack at deciding
whether the words in issue were “reasonably
capable of causing a defamatory meaning.
However,” continued Tolub, “a question for the
jury is presented if the words used are ambiguous or susceptible of several meanings, one of
which disgraces or discredits the Plaintiff.” Tolub was not willing to make that judgment as a
matter of law. “The court is mindful that changing social mores could affect how certain sexual
conduct is viewed by the community, and recognizes that what was once considered defamatory per se may no longer be considered defamatory today,” he continued.
“In this regard,” wrote Tolub, “the court is of
the opinion that it is for the community to decide whether the language has a defamatory im-
171
port, and whether the Article may be considered defamatory in the context in which it was
presented.” Thus, the defamation claim would
not be dismissed.
However, in a portion of the opinion that has
not been selected for official publication but
which was published in the New York Law Journal, Tolub rejected Cordero’s invasion of privacy claim, pointing out that New York courts
have not adopted a general civil right of privacy,
and that a statutory right of privacy in New York
is limited to unauthorized commercial appropriation of a person’s name and image, a concept not applicable to news reporting on topics
of public interest such as an article about a lawsuit concerning a controversial defendant.
Tolub also rejected the argument that New
York’s HIV confidentiality statute would come
into play here. Cordero stated in her Epstein
Complaint that she is HIV+, another fact mentioned in the original version of the Post article.
Tolub pointed out that the confidentiality statute concerns unauthorized disclosure of HIVrelated information by custodians of medical
records or of confidential medical information.
He concluded that the statute has no application to a newspaper reporting facts stated by the
Plaintiff in an unsealed legal document filed in
the court and open to anybody to see. A.S.L.
Texas Appeals Court Finds Same-Sex Harassment
Actionable Under State Law
The Texas Court of Appeals in Amarillo ruled in
City of San Antonio v. Cancel, 2008 WL
2884932 (July 28, 2008), the same-sex workplace harassment claims are actionable under
the sex discrimination provisions of the Texas
Human Rights Commission Act, but reversed a
$90,000 jury verdict against the city based on a
finding that the plaintiff had not proved his hostile work environment claim.
Plaintiff Michael Cancel was performing
custodial work at the city airport in 2005. He
claims that while working at the terminal on
July 5, he was approached by the Assistant
Aviation Department Director, Ryan Martinez,
who asked him “what was wrong.” When Cancel responded that he was going through a divorce, Martinez told Cancel he had been
through a similar situation and invited him to
his office to talk. From Cancel’s testimony
about what ensued, it sounds like Martinez subjected Cancel to some unwanted sexual attention, trying to get him to strip while Martinez
was “getting off” on the situation. Cancel eventually fled the office, and after some hesitancy
ended up reporting the incident. Word got
around and Cancel was subjected to some ribbing from co-workers, which mounted to the
point where he couldn’t concentrated on his job
and quit. During discovery in Cancel’s hostile
environment case, it came out that photos of
nude men had been found on Martinez’s office
172
computer in 2004, but that the inspector had
failed to follow through on the discovery so
Martinez had avoided any adverse consequences.
A jury awarded Cancel $90,000 on his hostile environment claim, but the city appealed,
arguing that there was no state law authority for
a same-sex harassment claim and that, in any
event, Cancel’s evidence did not suffice to
make out a case against the city. The court of
appeals, in an opinion by Justice Mackey K.
Hancock, rejected the city’s doctrinal argument, finding that at least one prior court of appeal decision had recognized such a claim, and
that the U.S. Supreme Court’s Oncale decision,
construing similar language in Title VII, was
persuasive on the point. So long as a plaintiff
could show they have been subjected to harassment due to their sex, they would have an actionable claim of sex discrimination.
Justice Hancock wrote that to make out a
hostile environment claim, Cancel would have
to show “that the workplace was permeated
with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to
create a hostile or abusive working environment.” In this case, the court concluded that
Cancel’s evidence fell short of these requirements. While the court found Martinez’s conduct, as described in the trial record, as “boorish and offensive,” the judges felt that it was
“not so severe as to alter a term, condition, or
privilege of employment.” The court characterized Martinez’s comments as “inappropriate”
and “ill-mannered,” but evidently that is not
enough. The court also seemed to consider the
other information that came out during discovery about Martinez’s misuse of his office computer to add little to the proof, and that a “reasonable person in Cancel’s position” would not
consider the workplace atmosphere to be so
hostile or abusive as to meet the standard of the
law. Surprisingly, the court concluded that Cancel “failed to present at least a scintilla of evidence to support his claim of hostile work environment sexual harassment,” which seems
inconsistent with the court’s summary of the
evidence. After all, Cancel testified to psychological ill effects of the treatment by Martinez
and his co-workers. But the decision seems
consistent with the general reluctance of Texas
appeals courts approve such claims. A.S.L.
Justice Department Personnel Scandals Include
Sexual Orientation Discrimination
In violation of official policies against discrimination in the professional career ranks at the
Justice Department, an internal investigation
has uncovered evidence that a highly qualified
federal prosecutor was denied several positions
because of her sexual orientation and false allegations that she had a sexual relationship with a
female United States Attorney for whom she
September 2008
had previously worked, it was revealed late in
July. The Justice Department’s Office of Inspector General and Office of Professional Responsibility, which had undertaken the investigation in response to charges that the hiring and
assignment process in the Department had
been improperly politicized while Alberto Gonzales was serving as Attorney General, specifically concluded that Monica Goodling and Kyle
Sampson, highly-placed aides to Gonzalez, had
violated department policies and federal civil
service laws by imposing a political litmus test
on appointees for non-policy-making law enforcement functions. (In testimony before Congress last winter, Goodling had confessed to
“crossing the line” while employed at Justice in
the role of vetting potential appointees.)
The findings included an on-line screening
process that specifically sought to determine
job candidates’ views about “homosexuality”
by searching news source databases on Nexis,
and candidates were subjected to politically
charged interviews that inquired into their affiliations. Goodling and Sampson were apparently dedicated to appointing only attorneys
loyal to George W. Bush and the policy goals of
his administration, even though the positions in
question were not within the scope of political
appointments to policy-making positions.
Although the mainstream media refrained
from giving details of the particular gay-related
case mentioned in the report, the Washington
Blade reported on July 28 that Leslie Hagen, a
former Assistant U.S. Attorney from Michigan
who had been serving on a temporary basis at
the Justice Department’s headquarters building in Washington, had been denied a permanent appointment due to Goodling’s understanding that she had a “homosexual
relationship” with then-U.S. Attorney Margaret
Chiara, one of eight U.S. Attorneys who were removed by the Department in 2006 for reasons
believed to be politically-inspired. Chiara and
Hagen have denied that they had any sexual relationship. Hagen’s job performance at Justice
had been rated “outstanding,” and the evidence turned up by the report showed that denial of various appointments to her was entirely
political in nature, not on the merits of her performance, a clear violation of civil service rules.
Ultimately, Hagen was detailed to the Department’s Office of Sex Offender Sentencing,
Monitoring, Apprehending, Registering and
Tracking, when the Assistant Attorney General
in charge of that Office, Regina Schofield, decided to reject Goodling’s interference and
stand up for a merit appointment. Hagen is still
employed at the Department, and refused to
comment about the subject, according to a report last spring by National Public Radio.
The report also detailed how the Justice Department under Gonzalez had politicized the
appointment of Immigration Judges, a position
that had previously been conceived as totally
Lesbian/Gay Law Notes
apolitical, resulting in the imposition of a political litmus test for a position that is supposed to
be an impartial adjudicator of citizenship and
asylum claims.
Story based on articles in the Chicago Tribune (July 29), Washington Blade website (July
28), and New York Law Journal (July 29).
A.S.L.
Florida Appeal Court Upholds Injunction Against
Anti-Gay Teen Stalker
Florida’s 4th District Court of Appeal unanimously upheld a decision by Broward County
Circuit Judge Ronald J. Rothschild to issue an
injunction against continuing stalking activity
by Nicholas Weisz, a teenager alleged to have
waged a campaign of harassment against Stephen Clair and Joseph Killfoile, a gay couple
living in the same neighborhood as Weisz. Weisz
v. Clair, 2008 WL 2812958 (Fla. Dist. Ct. App.,
4th Dist., July 23, 2008).
According to the decision by Judge Melanie
G. May, Clair and Killfoile had been neighbors
of the Weisz family for eight years, and for the
past six, young Nicholas, who was described by
the court as over six feet tall and weighing 200
pounds, had been “gay-bashing them.” The
problem had started three years ago, when
Nicholas was given a motor scooter and took to
riding it back and forth in front of the ClairKillfoile house, “revving the motor to provoke
them.” They were duly provoked, and called
the local police department to complain. The
police contacted Weisz’s parents, who reprimanded him. He, in turn, blamed Clair and
Killfoile and apparently set off on a campaign to
make their lives miserable.
The specific events that precipitated Clair
and Killfoile to go to court seeking an injunction against the boy and his parents began
about three weeks before their appearance before Judge Rothschild. According to May’s
opinion, Clair “was unloading groceries from
the car when the minor child looked at him and
in a confrontational manner said, ‘Rum, rum,
rum, rum, rum, rum, rum.’ The petitioner further testified that every time he is in his yard,
the minor child shouted derogatory comments.” In a footnote, May relates that these
comments were: “You queer.” “Faggot.” “You
sick faggot.” Killfoile had talked to Nicholas’s
parents about the problem, but “the father told
him that they were getting what they deserved
for having called the police about the scooter.”
Two weeks before the court hearing, Clair
and Killfoile were driving around the neighborhood while a realtor was showing their house to
prospective purchasers. They found their way
blocked by a group of children, including
Nicholas, who came up to their car and said,
“Get out of the car, I’m going to light you up,
motherfucker.” A parent who was present in the
crowd told Nicholas to shut up, but he ap-
Lesbian/Gay Law Notes
proached the car a second time and shouted the
same thing. He also shouted “I’m going to murder you.”
This seems to have been the final straw that
led them to file suit against the Weiszes, representing themselves at the hearing. Clair testified that Nicholas had boasted about his father
having semi-automatic weapons. He testified
that he and Killfoile had been “living in fear.”
He said they were not able to walk in the neighborhood, walk their dogs or ride their bikes, and
that they slept with a fire extinguisher on one
side of the bed and a gun on the other due to the
threats from Nicholas. Clair testified that he
had lost weight since Nicholas made his
threats, and was undergoing counseling and
taking medication to cope with his emotional
upset.
Although Nicholas and his parents were represented at the hearing, they did not refute any
of Clair’s testimony. They argued that the court
did not have authority to issue an injunction,
because Nicholas had not actually harmed either man.
But Judge Rothschild concluded that the
statute authorizing injunctive relief to victims
of repeat violence was broadly enough written
to cover the situation, and issued injunctions
barring the Weiszes from any continued harassment of Clair of Killfoile. The Weiszes appealed
this ruling. The court of appeal is handling it as
two separate cases, and ruled on July 23 only on
the injunction protecting Clair.
Judge May noted that the statute defines “repeat violence” as meaning “two incidents of
violence or stalking committed by the respondent, one of which must have been within 6
months of the filing of the petition, which are directed against the petitioner.” Florida statutes
provide that a person “who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of
stalking,” and harassment “means to engage in
a course of conduct directed at a specific person that causes substantial emotional distress
in such person and serves no legitimate purpose.”
May found that the hearing record supported
Rothschild’s conclusion that Clair was entitled
to the injunction, writing, “Here, petitioner testified to multiple occasions where the minor
child shouted obscenities at the petitioner and
his domestic partner, threatened to ‘light them
up,’ and ultimately threatened to murder
them.” Noting Clair’s testimony about the impact of this course of conduct on him, May concluded that “the evidence satisfies the elements of stalking,” sufficient to warrant issuing
the injunction. The court has not yet ruled on
the Weisz’s appeal of the injunction protecting
Killfoile. A.S.L.
September 2008
Federal Civil Litigation Notes
10th Circuit — Colorado — Reversing a grant
of summary judgment by the district court, a
unanimous panel ruled in Howard v. Waide,
2008 WL 2814821 (10th Cir., July 23, 2008),
that a gay inmate, formerly incarcerated in
Colorado state prisons, can maintain an 8th
Amendment action under 42 USC 1983 against
several Colorado correctional officers, based on
his claim that they exhibited deliberate indifference to his safety after he brought to their attention a serious threat against him by a prominent prison gang. Scott Howard, who had been
convicted of financial and tax crimes, was
quickly targeted within the prison for extortion
and sexual exploitation, he claims, and was
forced into prostitution by gang members to pay
off his “debts” to them. He claims that corrections officers refused to do anything for him at
Sterling Correctional Facility when he refused,
out of fear of retaliation, to give the names of his
specific oppressors. Howard claims to have
been physically and sexually assaulted after
being placed into general population despite
his complaints. Corrections officers took the
position that any inmate could make up such
stories in search of a move to a more secure
unit, but the court found convincing Howard’s
allegation that alerting corrections officers to a
situation involving a known gang which had exploited him previously could be sufficient under Supreme Court precedent to trigger an obligation to protect him. The case was remanded
to the district court for proceedings on the merits. As Howard was subsequently moved to a
federal facility after he finally broke down and
gave the Colorado officials the names of particular gang member assailants, his original
claim for injunctive relief was moot, and the
case now revolves on whether he is entitled to
compensation against particular corrections officers, and how much.
9th Circuit — A 9th Circuit panel ruled that
a trial judge sentencing a transsexual to prison
must consider the possible difficulties the prisoner will face as a transsexual in determining
the appropriate sentence. The short opinion in
U.S. v. Gutierrez-Romero, 2008 WL 2951393
(July 31, 2008), indicates that the defendant
was convicted of being a deported alien present
in the United States unlawfully. District Judge
Thomas J. Whelan imposed a 51–month prison
sentence upon the defendant’s guilty plea.
Gutierrez-Romero “contends that his sentence
is unreasonable because the district court
failed to address his argument that he has suffered abuse and will face abuse in prison due to
his transgender status.” The court of appeals
panel concluded in its unpublished disposition
that the district court “should more adequately
explain the sentencing factors listed in 18
U.S.C. sec. 3553(a), and address how
Gutierrez-Romero’s transgender status is
173
weighed in those factors.” Unhelpfully, the
court provides no guidance on the question of
how that status should be weighed in making
such a decision.
9th Circuit — A bisexual African-American
physician will get to press forward his race discrimination claim under 42 U.S.C. sec. 1981
against his former employer, a hospital, but the
9th Cicuit agreed with with the district court
that he had not stated a claim under the Unruh
Act or the Fair Employment and Housing Act,
the former for jurisdictional reasons, the latter
because his complaint was time-barred. Johnson v. Riverside Healthcare System LP, 2008 WL
2875305 (9th Cir., July 28, 2008). Dr. Johnson
claims to have been the victim of racial and sexual orientation harassment from fellow staff
members, who, he charges, contrived to have
his annual dues payment for membership in the
hospital’s Medical Staff sent to him while he
was on vacation with a short deadline for payment, resulting in his defaulting, being kicked
out of the Staff association, and losing his position with the hospital. (Some of this may have
been caused, according to Johnson, by his decision to perform a procedure on another doctor’s
patient after he noticed that the procedure was
needed and have not been spotted by the other
doctor.) The trial court dismissed his case, but
the 9th Circuit panel concluded that he had
stated a race discrimination claim under sec.
1981. However, they found that his action in
dismissing his original FEHA claim and then
refiling after the statute of limitations had run
left him vulnerable to dismissal. The Unruh
Act, outlawing discrimination in places of public accommodation, did not apply to Johnson’s
claim, wrote the court, because Johnson’s claim
is essentially one for employment discrimination, as to which the FEHA occupies the field as
a matter of state law.
3rd Circuit — Stretching the concept of
“case or controversy,” a conservative panel of
3rd Circuit judges decided that Temple University’s sexual harassment code was facially unconstitutional, even though the student who
filed the complaint had never been prosecuted
under the code and was no longer enrolled at
the school, and the University had abandoned
its code for a revised one designed to avoid constitutional objections prior to the trial court’s
ruling in the case. DeJohn v. Temple University,
2008 WL 2952777 (Aug. 4, 2008). Alliance
Defense Fund (ADF), a right-wing religious litigation group, provided representation to DeJohn, a military veteran who was enrolled in a
graduate program and who claimed that the
sexual harassment code had chilled his speech
by deterring him from speaking and writing
what he really thought about the role of women
in the military. The trial and appeals courts
agreed with DeJohn that the code in effect while
he was a student was overbroad in violation of
the First Amendment, and it is difficult to dis-
174
agree, inasmuch as the code went after any
“gender-related” speech that might offend anybody. There was no need for this panel decision,
other than to make points and try to establish a
precedent to coerce other public universities in
the 3rd Circuit to narrow their sexual harassment policies. As such, this is clearly a politically inspired decision, since prudence would
have dictated vacating the trial court’s decision
as moot. The slender thread on which the panel
built its case-or-controversy analysis was the
hypothetical possibility that Temple might,
oblivious to the direction of the wind, reinstate
its prior code as soon as the litigation was concluded. Thus, the panel found it necessary to
keep that injunction in force…
California — A prison inmate who alleged
that prison officials violated the 8th Amendment by being deliberately indifferent to the
placement of known homophobic inmates into
proximity of an inmate who had supported and
befriended a gay inmate survived a motion to
dismiss in Chism v. Woodford, 2008 WL
2872700 (N.D.Cal., July 23, 2008). In addition, District Judge Ronald M. Whyte refused to
dismiss a sexual orientation discrimination
claim, premised on the allegation that plaintiff’s association with and support of a gay inmate caused prison officials to discriminat
against him.
Connecticut — In Morales v. ATP Health &
Beauty Care, Inc., 2008 WL 3845294 (D.
Conn., Aug. 18, 2008), District Judge Alvin W.
Thompson found that the female transgender
plaintiff’s Title VII claims of sexual discrimination and hostile environment sexual harassment should be decided in favor of the employer. Thompson found that Morales had a
significant attendance problem that was the
cause of her discharge. In addition, he found
that a few stray comments about “fags” did not
amount to a hostile environment, that Morales
had not suffered any tangle injury attributable
to her gender identity, and indeed that the person who hired her for the job knew about her
transgender identity..
District of Columbia — In Moonblatt v. District of Columbia, 2008 WL 2940666 (D.D.C.,
Aug. 1, 2008), U.S. District Judge John D. Bates
denied motions to dismiss by defendants in an
action brought by Richard Moonblatt, described by the court as a Caucasian, Jewish homosexual, who claims to have encountered discrimination and mistreatment due to his race,
religion and sexual orientation while in the custody of Corrections Corporation of America, a
contractor of the District of Columbia for prison
services. Moonblatt alleged violations of his
rights under 42 U.S.C. sections 1981 and 1983,
as well as the D.C. Human Rights Law, and also
alleged torts claims of negligent hiring and supervision against the prison authorities. He
made 73 factual allegations with a fair degree of
specificity concerning adverse actions against
September 2008
him accompanied by epithets relating to him
being white, Jewish and gay. Among the key issues for Judge Bates to determine were whether
the factual allegations were sufficient for institutional liability, whether CCA might be liable
on constitutional claims, and whether the D.C.
Human Rights law’s non-discrimination provisions would apply on the basis that the prison is
a government service or place of public accommodation. Bates found that Moonblatt’s factual
allegations were sufficient, at least at the pleading stage, to suggest deliberate indifference by
the District and CCA management to Moonblatt’s mistreatment, thus meeting the policy or
practice requirement for institutional liability
under the Constitution, that CCA’s position as a
contractor operating prisons might subject it to
constitutional restraints in dealing with inmates, and that a plausible claim could be
made at this stage under the DCHRL. Indeed,
the District did not take the position that it was
not obligated to avoid discriminating on the basis of race, religion or sexual orientation in the
operation of D.C. prisons. Having defeated the
dismissal motion, Moonblatt faces the difficult
task of proving his factual allegations, which
are highly contested. He is represented by
counsel.
Florida — The Miami Herald reported on
Aug. 8 that Immigration Judge Irma LopezDefille had granted a petition for relief under
the Convention Against Torture for a lesbian
from Jamaica, finding that the woman, subject
to deportation because of drug convictions,
could be tortured upon return to Jamaica due to
her sexual orientation. Press reports about
anti-gay violence by government agents in Jamaica have been plentiful in recent years, although there has been uneven success in getting U.S. immigration authorities to recognize
the situation and extend protection to gay Jamaicans who manage to make their way into the
U.S. The woman, identified only by her middle
name Nichole because of fears for her safety,
was ordered released from a federal detention
center in Puerto Rico in June and is living with
her parents in Florida.
Florida — Title VII is not a general workplace harassment statute, a point well illustrated by the decision in Moren v. Progress Energy, Inc., 2008 WL 3243860 (M.D.Fla., Aug.
7, 2008), by District Judge Elizabeth A Kovachevich. The plaintiff, a heterosexual male,
claimed to have been subjected to hostile environment sexual harassment by his immediate
supervisor, another heterosexual white male,
who called the plaintiff “homosexual,” “faggot,” “dickeater,” “dickcheese,” “dildo,”
“asshole,” “dumbass,” and “shithead.” When
his complaints to his department head went unmet, he went to corporate human resources with
his complaints, they investigated, and got the
supervisor discharged for inappropriate conduct. But, of course, this set off the people in the
Lesbian/Gay Law Notes
department, who got on the plaintiff’s case for
having gone over their heads to corporate, and
some of the union activists in the group were
upset because the supervisor had been a longtime union member. Soon one of the discharged
supervisor’s friends managed to provoke a severe verbal altercation with the plaintiff, who
found himself in a “resigned or you will be discharged” situation, and resigned, then filing
his charge with the EEOC. Judge Kovachevich
granted summary judgment to the company on
the hostile environment and constructive discharge claims, finding that although same-sex
harassment is actionable, plaintiff’s allegations
included nothing to suggest that he was harassed because of his sex. Everybody was male
in that department (power linemen), and there
was no basis, in the judge’s view, for a sexual
stereotyping claim. In fact, the discharged supervisor asserted in his deposition that part of
the job was to harass probationary employees as
part of their initiation into the trade. However,
the judge refused to grant summary judgment
on plaintiff’s retaliation claim, finding that he
had adequately alleged the elements to support
his claim that he suffered retaliation for filing
his complaint with the human resources department. That claim will go to trial, unless, of
course, the company comes up with a decent
settlement offer.
Ohio — A high school English teacher
whose year-to-year contract was not renewed
after disagreements about her supplemental
reading assignments to 9th grade students led
to a deterioration of her working relationship
with the school’s principal has lost her First
Amendment academic freedom case, suffering
summary judgment in Evans-Marshall v. Board
of Education of Tipp City Exempted Village
School District, 2008 WL 2987174 (S.D. Ohio,
July 30, 2008). One of the controversial assignments was to require students, as part of a unit
on censorship focused on Ray Bradbury’s novel
“Fahrenheit 415,” to select and read a book
from the American Library Association’s list of
the 100 “most-challenged” books in the United
States, in response to which several students
chose to read “Heather Has Two Mommies,”
which caused consternation on the part of the
principal, who ordered the teacher to change
that assignment. District Judge Walter Herbert
Rice was confronted by the argument that the
First Amendment no longer applies to public
school teacher academic freedom claims, as a
result of the Supreme Court’s 2006 decision in
Garcetti v. Ceballos, 547 U.S. 410, in which the
Court held that job-related speech by public
employees does not enjoy First Amendment
protection. There is a circuit split about
whether Garcetti applies to academic freedom
cases, and the 6th Circuit has not weighed in.
Rice chose to follow the 4th Circuit precedent,
holding that academic freedom claims present
different issues than those resolved in Garcetti,
Lesbian/Gay Law Notes
so rise applied the pre-Garcetti precedents,
under which the court weighs the competing interests of the employer and the employee. Rice
concluded that assigning “Heather” to students does involve speech on matters of public
concern, bringing it within the real of potential
First Amendment protection, but that the
school district’s interest in curriculum control
outweighs the individual teacher’s free speech
interest in assigning supplementary reading.
Wisconsin — In Anderson v. Hillstead, 2008
WL 2767377 (W.D.Wis., June 11, 2008), U.S.
District Judge Barbara B. Crabb dismissed a
pro se prisoner’s claim that he was subjected to
unconstitutional discrimination by being harassed in the prison because he is gay. While acknowledging that “intolerance” is not a condition that inmates should be required to endure,
Crabbe noted 7th Circuit controlling precedent
that “verban harassment does not constitute
cruel and unusual punishment,” and concluded that the various instances of “harassment” identified in the complaint did not appear to rise to the level of a constitutional
violation, and that in addition he had not identified in his complaint the names of the persons
allegedly harassing him. The named respondents were all supervisors, and Crabb noted
that supervisors may not be held liable for constitutional torts committed by others, unless
they “knew about the conduct and facilitated it,
approved it, condoned it, or turned a blind
eye,” citing another 7th Circuit precedent.
A.S.L.
State Civil Litigation Notes
California — On July 16, the California Supreme Court denied the Application for Stay
and Petition for Extraordinary Relief requested
in Bennett v. Bowen, S164520, in which proponents for same-sex marriage sought to block the
November 4 vote on Proposition 8, which if enacted would amend the state constitution to
provide that the only valid or recognized marriages in California be those involving one man
and one woman, thus effectively reversing the
outcome in Marriage Cases, 43 Cal.4th 757,
183 P.3d 384 (May 15, 2008). The court did not
provide any explanation for its action. The
court’s website indicated the status of the case
as “closed.”
California — In what looks like a strong sexual orientation discrimination claim, the California 2nd District Court of Appeal found in Simonian v. Federal Express Corporation, 2008
WL 2971991 (Aug. 5, 2008) (not officially
published), that the plaintiff sat on her claim
too long and thus was time barred. Although she
claimed that she did not learn about an important supervisor’s sexual orientation bias against
her until after filing her initial sex discrimination claim, it seems plaintiff left a diary entry,
discovered during the litigation, which showed
September 2008
rather earlier knowledge about the supervisor’s
reference to her as a “fucking dyke” whom he
would not hire into a managing director position. Her sexual orientation claims were thrown
out by the court (and sustained on limitations
gounds), and other claims were decided adversely to her by a jury.
California — The family of Lawrence King,
a gay teen who was fatally shot in school by a
classmate, has filed suit against the school district and the county, claiming that their failure
to protect King at school led to his death and the
school should be responsible. The claim specifically alleges that the school failed to enforce
its own dress code, allowing King to appear at
school in sexually indeterminate dress, creating the environment in which he felt free and
supported to be “out” (and a bit outrageous),
engaging in speech and conduct that eventually
provoked his assailant, Brandon McInereney,
to shoot him. The complaint also alleges that
the district should have allowed King to attend
classes at a children’s shelter in Camarillo
rather than subject him to the dangerous atmosphere at E.O. Green Junior High School. King
was a ward of Ventura County, and had been living in the relevant shelter. Los Angeles Times,
Aug. 16. The entire thing has a sort of “blame
the victim” aura hanging over it, attempting to
score the school for having been open and supporting to King, an out teen who was a controversial dresser and rather uninhibited about
initiating sexually explicit conversation with
potentially unwilling persons.
District of Columbia — Errors committed by
police officers during the investigation of the
murder of a gay freshman at Gallaudet University (a school for hearing-impaired students) in
the fall of 2000 did not subject the District government to liability to a young man who was
mistakenly arrested in connection with the investigation, ruled the D.C. Court of Appeals in
Minch v. District of Columbia, 952 A.2d 929
(July 17, 2008), affirming a ruling by Superior
Court Judge Zoe Bush. When Eric Plunkett,
18, was found dead in his blood-spattered dorm
room early in the fall semester, police started
questioning students and quickly zeroed in on
Thomas Minch, also 18, another freshman, who
was identified by other students as having had a
sexual relationship with Plunkett. Minch was
brought to the police station for questioning
with the assistance of a team of two sign language interpreters. During the questioning he
denied being gay, but said he had one sexual
encounter with Plunkett two weeks before the
murder, and concluded as a result of his reaction to that experience that he wasn’t gay. On
the night before Plunkett’s body was found,
Minch told police, he had returned to the dorm
from working at a theater and got into an altercation when Plunkett tried to initiate physical
contact with him. Minch said that he pushed
Plunkett away and Plunkett fell, and Minch
175
left. This story emerged amidst various contradictory statements from Minch. The police detective conferred with his superior and they decided they had enough to arrest Minch. The
arrest was announced to the press and featured
in the newspaper the next day, although nothing
was said about the sexual angle of the case,
merely that there was a “physical altercation
about a personal dispute” between the two.
However, the next day the prosecutor decided
there was no probable cause for the arrest and
declined to prosecute, and Minch was released.
Gallaudet reacted to these events by suspending Minch from school, and he returned to his
home in New Hampshire, eventually attending
another school. The actual killer was subsequently identified and prosecuted after he murdered another student. Minch sued for false arrest, defamation, and intentional and negligent
infliction of emotional distress. The court found
that the police were acting in “good faith,” that
issuing a press release “that directly concerns
the arrest of a suspect in a notorious murder on
a university campus” was clearly connected to
the investigators’ official duties and thus sheltered by immunity, and that their conduct was
not so outrageous as to merit liability for infliction of emotional distress. Thus, no liability to
Minch was found.
District of Columbia — D.C. Superior Court
Judge Jeanette Clark refused to grant summary
judgment to Howard Dean and the Democratic
National Committee on charges of sexual orientation discrimination and retaliation brought by
Donald Hitchcock, the DNC’s former head of
outreach to the LGBT community. Hitchcock
was dismissed from his post after his domestic
partner sent an open letter to gay Democrats
criticizing Dean and suggesting that gay people
withhold donations from the DNC. Dean claims
the discharge was justified because Hitchcock
was not effectively rallying gay voters to support the Democratic Party. Mediation was to begin July 31, required by court procedure before
a trial will be scheduled. Washington Blade,
July 8.
Kansas — Westboro Baptist Church, the religious home of the notorious anti-gay Phelps
family, thought that they should be exempt from
the state’s ad valorem tax on their truck, which
they use, among other things, to transport signs
and other paraphernalia to their picketing activities, at which they hoist signs condemning
homosexuality and other aspects of modern society. The state of Kansas exempts from ad valorem tax property held by a religious organization for religious uses. The state’s tax officials
refused to grant the exemption, contending that
the truck was being used for non-religious purposes. Westboro litigated through an unsuccessful appeal at the Board of Tax Appeals and
took the case to court. In In the Matter of Westboro Baptist Church, 189 P.3d 535 (July 25,
2008), the Kansas Court of Appeals turned
176
them down. Although the court agreed with
Westboro that the Board had improperly premised its decision partly on the content of Westboro’s signs, the court nonetheless concluded
that Westboro’s “political activities and secular
philosophy, which constitute a significant part
of its picketing activities, preclude a tax exemption for its truck.”
Massachusetts — In 2001, we reported on
the case of Weber v. Community Teamwork, Inc.
434 Mass. 761, in which the Supreme Judicial
Court had reversed a trial victory for Patricia A.
Weber on her claim of sex and sexual orientation discrimination with respect to denial of
promotion and discharge, finding that the case
should be reconsidered at the trial level in accordance with newly articulated standards of
proof for employment discrimination claims.
Litigation grinds slowly in Massachusetts, but
eventually the Superior Court did reconsider
the case and produce a new opinion, again finding for Weber. On August 13, seven years after
the SJC decision, the Appeals Court of Massachusetts reversed that judgment, Weber v. Community Teamwork, Inc., 2008 WL 3342995
(Unpublished Disposition), once again faulting
the trial court for reaching legal conclusions
without the proper evidentiary foundation. Indeed, the appeals court’s unsigned memorandum insists that the trial court seems to have ignored many of the directives of the Supreme
Judicial Court as to the proof standards, failing
to make the necessary findings and ruling for
Weber based on a severely deficient factual
record.. The appeals court found a dearth of
evidence in the record tending to prove sex or
sexual orientation discrimination. A key factor
was that a male employee seen as similarly
situated was discharged at the same time as
Weber.
New Jersey — The town of Dover agreed to
settle a discrimination claim brought by a lesbian former police sergeant for $750,000, according to an announcement on July 31 by the
Civil Service Commission. Sharon Whitmore
will receive compensation for salary, pension
and promotional pay dating back to her suspension from duty in 2004, which she challenged
first in an administrative hearing and then a
lawsuit in Superior Court, Morris County. Whitmore, described in an August 1 report in the
Newark Star-Ledger as an openly-gay woman
who was the only female member of the Dover
police force, alleged that she had been subjected to “discriminatory, retaliatory or harassing conduct” by the male town supervisor, the
police chief, and other department officials.
Under the terms of the settlement, she will also
be reinstated to the active payroll of the department as a sergeant for nine months, during
which she is to be actively seeking work, as her
pay will terminate when she finds a new job or
by the end of the nine months, whichever comes
first. Whitmore was a twelve-year veteran of the
September 2008
department when things went sour for her there.
Also see N.J.L.J., Aug. 11.
New Jersey — Former N.J. Governor James
McGreevey was ordered to pay child support
but no alimony in the divorce decree issued on
August 8 by Union County Superior Court
Judge Karen Cassidy. The McGreeveys married in 2000 and formally separated in February 2005, three months after James
McGreevey’s resignation as governor went into
effect after he confessed publicly to having appointed an Israeli man with whom he was infatuated to an important state security post for
which the man had scant qualifications. Dina
Matos will be entitled to $250 a week toward
support of their daughter, now six years old, and
a lump sum payment of $109,000 representing
half of their marital investment assets and bank
accounts. Matos had sought monthly alimony of
$2500, but Cassidy refused to order the payments, noting that Matos has the capacity to
support herself and that McGreevey is not earning big bucks as a seminary student. Both parties have written books about their experiences,
but the court did not order any sharing of the
royalties! Philadelphia Inquirer, Aug. 9.
New Jersey — Philadelphia Gay News reported that Steven Zorowitz and his same-sex
partner had filed disciplinary charges against
N.J. Superior Court Judge Angelo DiCamillo in
connection with DiCamillo’s alleged mishandling of a case involving custody of a child born
during the partner’s prior marriage. They have
also asked the Judicial Conduct authorities to
investigate the mother’s attorney, who they
claim took part in improper out-of-court communication with the judge about the case.
Zorowitz’s partner sought custody of the child
in December 2004, having separated from the
mother before the child was born. The first
judge on the case delayed ruling on the custody
petition for eleven months, during which time
the mother prevented Zorowitz and his partner
from any contact with the child. Then the court
granted primary residential custody to the
mother, and ordered that Zorowitz and his partner move from New York to South Jersey, in
proximity to the mother’s residence, if they
wanted to have overnight visitation rights with
the child. They claimed that the mother denigrated them in front of the child and interfered
with regular visitation, and they sought modification of custody, which was denied by the trial
court. The case was reassigned to Judge
DiCamillo. They allege that the judge has
stalled the case, obstructed the participation of
expert witnesses, and refused to take action in
response to information that the mother’s
daughter from a prior marriage and her convicted felon boyfriend are living in the house,
that the boyfriend maintains an alarming MySpace page showing him and friends playing
with guns, and exhibiting a photo of Hitler and a
Confederate flag. Zorowitz alleges that the
Lesbian/Gay Law Notes
judge is not impartial in the case and has been
conducting ex parte conversations with the
mother’s lawyer.
New York — BlueCross BlueShield of Western New York has seen the light. Sued recently
by the NY Civil Liberties Union on behalf of a
same-sex married couple seeking spousal
benefits from a school district that obtained its
health coverage from BCBS of WNY, the insurer has agreed to abandon its insistence that
spousal coverage under its health insurance
policy does not include same-sex spouses married in Canada. The lawsuit had been filed on
July 9 in State Supreme Court in Buffalo (Erie
County), relying on a prior decision in the 4th
Department requiring a community college in
Monroe County to recognize a Canadian marriage of same-sex spouses. Apparently BCBS
saw the handwriting on the wall in light of Gov.
Paterson’s recent instruction to state agencies
to honor such marriages. The move is timely,
given Massachusetts’ decision to allow out-ofstate couples to marry there. The settlement in
Kornowicz v. BlueCross was announced on July
28.
Texas — Some Texas high school students
who created a false MySpace.com website for
their school’s vice-principal “containing her
picture and name, along with lewd, false, and
obscene comments, pictures, and graphics that
implied she was a lesbian,” managed to avoid
all liability to the vice-principal. Draker v.
Schreiber, 2008 WL 3457023 (Tex. Ct. App.,
San Antonio, Aug. 13, 2008). The courts decided that the defamation claim had to be rejected, accepting defendants’ argument that the
“’exaggerated and derogatory statements’ included on the MySpace website in question
were not assertions of fact that could be objectively verified,” and thus were not defamatory
as a matter of law. The plaintiff continued to
press her independent claim for intentional infliction of emotional distress, but the court decided that under Texas precedents, such a
claim that actually arose out of the facts underlying her defamation claim could not survive
after the defamation claim was thrown out.
Wisconsin — In Storms v. Action Wisconsin
Inc., 754 N.W.2d 480 (July 30, 2008), the Wisconsin Supreme Court issued a per curiam
opinion rejecting the argument that its prior decision in a dispute between a right-wing
preacher and a gay rights organization must be
set aside on the ground that a member of the
court should have recused himself. Since the
decision, 750 S.W.2d 739, rejecting defamation charges against Action Wisconsin by Rev.
Storms, was decided 4–3, a disqualification of
one member of the majority would have
changed the result, as the court had reversed a
decision of the court of appeals, in turn restoring a ruling by the district court that Rev.
Storms had not been defamed and that his
counsel would be liable for payment of signifi-
Lesbian/Gay Law Notes
cant costs to Action Wisconsin for bringing
frivolous litigation. James R. Donohoo, counsel
to Rev. Storms and the man on the stick for the
money, filed his motion seeking disqualification of Justice Butler on the ground that Butler
received contributions for his re-election campaign to the court from Action Wisconsin board
members and an attorney for Action Wisconsin
and had spoken at a gay rights event involving
opposition to an anti-gay marriage initiative
pending in Wisconsin. The contributions and
the speech coincided with significant events in
the chronology of the case. Donohoo contended
that these actions by Justice Butler had “tipped
his hand” and showed his bias in favor of gay
rights. The court determined that Justice Butler
was not disqualified from serving in the case,
noting a judicial conduct commission conclusion that he had done nothing wrong. The commission had written: “There is no case in Wisconsin or elsewhere that requires recusal of a
judge or justice based solely on a contribution
to a judicial campaign. The amounts of the contributions presented in your submission are
relatively insignificant. They were legal and
well within the maximum for individual contributions in Supreme Court races as established
by state law. There were no contributions from
any litigants in cases before the court, but
rather two board members out of twelve made
personal donations as did an attorney.” The
court also echoed the commission in concluding that judges can speak on political issues so
long as they don’t indicate a predisposition regarding particular cases. Butler never spoke
publicly about Rev. Storms or his allegations of
defamation against Action Wisconsin. Justice
David T. Prosser wrote a concurring opinion, focusing on the awkward position for justices who
have to run for re-election in a politicized process that requires fund-raising in order to campaign.
Rhode Island — A Superior Court jury ruled
that the Town of Somerset had subjected a lesbian employee to unlawful discrimination and a
hostile environment, and assessed substantial
damages on the complaint fo Kim Pelletier. The
case gained some local press notoriety due to
“sensational testimony that the department was
riddled with pornography,” according to an
August 12 article in the Providence Journal
Bulletin. The town had 30 days to decide
whether to appeal, time to run out in midSeptember. Pelletier agreed to settle with two of
the individual defendants for $600,000, and
the court ruled that the town was responsible to
pay legal fees of $254,295 to Pelletier’s attorneys, Carlin Phillips and Joseph P. Fingliss.
The town has been disputing particulars of the
legal bill.
Vermont — The Vermont Supreme Court sustained a decision by Franklin Family Court
Judge James R. Crucitti in a bitterly contested
divorce proceeding between a male-to-female
September 2008
transsexual and her wife in Morin v. Morin,
2007 WL 5313306 (May Term 2007) (not officially published). The decision took more than
a year to show up on the Westlaw database.
Donelle Morin, the transsexual spouse, sought
a divorce, but Pene Morin, the wife, sought an
annulment, claiming she had been defrauded
concerning her spouses sexual identity. The
trial court found that the conflicting testimony
did not lead to a clear resolution as to whether
the respondent had proved fraud. Most of the
decision was devoted to conflict about real and
personal property division. The court noted that
each party had been awarded a protective order
requiring the other to stay at least 100 feet
away, so this was not a friendly dissolution of a
marriage. A.S.L.
Criminal Litigation Notes
Federal — 6th Circuit — Granting a petition for
writ of habeas corpus, the 6th Circuit has ordered a new penalty phase trial for a man who
brutally murdered a gay man whom he had
picked up from a bar in Cincinnati in 1985,
having found that the defendant received ineffective assistance of counsel during the penalty
phase. Van Hook v. Anderson, 2008 WL
2952109 (Aug. 4, 2008). According to the
opinion by Circuit Judge Merritt, Robert Van
Hook and David Self met at the bar and went to
Self’s apartment, where Van Hook strangled
him to unconsciousness and then stabbed him
in the head and abdomen, killing him. Van
Hook then stole a few items and fled to Florida,
where he was apprehended over a month later
and confessed to the murder. He waived a jury
trial, and since he was charged with a capitol offense, was tried by a specially selected threejudge panel, which found him guilty of aggravated murder and aggravated robbery and sentenced him to death. His primary defense was
insanity, yet his trial counsel failed to offer an
expert witness, instead relying disastrously on
cross-examining the psychiatric experts presented by the state and one appointed by the
court, as well as on a report prepared by the
court’s expert. He also made no substantial independent investigation of potential mitigating
factors, not even undertaking an investigation
until his client was convicted and the penalty
phase of the trial was about to begin. The 6th
Circuit, reversing a denial of the writ by the district court, found under these circumstances
that Van Hook had been deprived of competent
representation at the penalty phase and was entitled to a new penalty phase trial.
Federal — Missouri — U.S. District Judge
Charles Shaw approved a magistrate’s recommendation to deny a writ of habeas corpus to
Mario J. Primm, who had been convicted by a
jury on charges of robbery, assault and armed
criminal action and sentenced to 25 years.
Primm was denied relief on direct appeal in the
177
state courts. One of his grounds for contesting
the lawfulness of his conviction was some evidence that a juror felt pressured by another juror, who was gay, to vote to convict because one
of Primm’s victims was a gay man. The magistrate found that 8th Circuit precedent forbids
premising habeas relief on evidence concerning internal juror deliberations. Primm v. Roper,
2008 WL 3890411 (E.D.Mo., Aug. 19, 2008).
Arizona — In State v. Fischer, 2008 WL
2971520 (Ariz. Ct. App., Div. 1, Dept. E, Aug.
5, 2008), the court joined several others from
around the country in holding that Lawrence v.
Texas does not require invalidating prosecutions of polygamist men for engaging in sexual
activity with multiple underage wives. The
court, in an opinion by Judge Kessler, rejected a
1st Amendment Free Exercise of Religion argument as well as a 14th Amendment Due Process argument. As to the latter, “Defendant’s reliance on Lawrence is misplaced,” wrote Judge
Kessler. “The Court clearly limited its holding
in Lawrence to sexual activity between consenting adults. In fact, the Court repeatedly referenced that petitioners were adults” and specifically mentioned that the case did not involve
minors or persons who might be injured or coerced or who were in relationships where consent might not easily be refused. Kessler also
asserted that Lawrence had not identified a fundamental right of sexual privacy, so the appropriate level of judicial review was rational basis, easily met by the state on this occasion.
California — San Francisco Superior Court
Judge Charlotte Woolard has reinstated the jury’s original second degree murder conviction
of Marjorie Knoller, whose dogs mauled to
death her lesbian neighbor, Dianne Whipple, in
2001. Knoller was originally sentenced to four
years in prison for involuntary manslaughter after her first murder conviction was thrown out
by the court, and was paroled in 2004 after
serving about half of her sentence. Ultimately
the California Supreme Court ruled in 2007
that the lower court should reconsider the case.
New sentencing will take place on September
22. Law.com, August 25.
Colorado — Weld County District Attorney
Kenneth R. Buck has announced that he will
use the hate crime law in prosecuting Allen R.
Andrade, who has been arrested for the murder
of Angie Zapata, 18, a male-to-female transsexual. Zapata’s body was found in her apartment
on July 17. According to a report in the New
York Times on August 2, Angie, born Justin, had
begun to live as a girl at age 12, and was accepted as such by many of her friends and her
five siblings, but she suffered from bullying at
school that led her to drop out and get her own
apartment. According to the D.A.’s office, Andrade, 31, had gone out on a date with Zapata
believing her to be female. They went back to
her apartment where she performed oral sex on
him but resisted his demand for intercourse.
178
When he discovered her genitals, he beat her to
death in a burst of rage, using his fists and fire
extinguisher. He later told police that he
thought he had “killed it.” Reported the Times:
“At a recent memorial service, nearly 200 people filled the church Ms. Zapata had attended.
A vigil is being planned for this month. With
her long hair, baby-smooth face and distinctive
looks, Ms. Zapata cut a glamorous figure,
friends and family members said.”
Florida — Pinellas-Pasco Circuit Judge
Henry Andringa ruled Aug. 27 that five men
who had demonstrated with anti-gay signs at St.
Petersburg’s 2007 Gay Pride Parade had violated a city ordinance stating that anybody protesting in a designated area could not have a
sign larger than their torso. Andringa had initially delayed judgment while considering
whether the ordinance violated First Amendment rights, but he evidently determined that it
was content-neutral and dictated by public
safety concerns. Sentencing is scheduled for
Sept. 25. Tampa Tribune, Aug. 28.
Georgia — The Court of Appeals of Georgia
rejected an appeal by a female physical education instructor who was convicted of sexual assault of a 16–year-old female student in her
gym class. Chase v. State, 2008 WL 3892033
(Ga. App., Aug. 25, 2008). The teacher argued
on appeal that her waiver of jury trial was defective because the court did not question her before granting the waiver, and that consent of the
student should be a defense. The court noted
that Chase had executed a detailed waiver and
that, although Georgia precedents suggested
that it was preferable for the trial judge to question a defendant to ensure that such waiver was
knowing and voluntary, it was not required that
the court do so. During a hearing on Chase’s
motion for a new trial, her trial counsel had testified that he was concerned about the “sexual
orientation” issue, which was why he preferred
a bench trial. As to the consent issue, the court
drew upon a statute that it said had been passed
for the specific purpose of penalizing sex between teachers and their students, even though
a literal ruling of the statutory language might
belie such an interpretation., since, on its face,
the statute seems to refer to situations where the
aggressor is somebody in the position of a security or correctional officer, or officer of some sort
of residential institution where the victim is an
inmate. In this case, Chase argues that the student was of age to consent and had actually initiated the sexual contact with Chase.
New Jersey — In State v. Rogers, 2008 WL
2796472 (July 22, 2008), the Appellate Division of the Superior Court upheld consecutive
life sentences for Richard W. Rogers, who was
convicted of first-degree murder on two counts
in the deaths and dismemberments of gay men
who were last seen in gay bars in Manhattan.
Although he was only charged in two murders,
police presented evidence of his association
September 2008
with two others, which was a point of contention
on appeal. The per curiam opinion from the
court sets out the evidence in great detail. The
dismembered bodies of the two men in this case
were both found in bits and pieces in trash bags
along New Jersey highways. It was never established where the actual murders took place, so
one of the arguments on appeal was over
whether the New Jersey courts had jurisdiction.
Rogers’ fingerprints were found on the trash
bags and other pertinent material, but not on
the bodies themselves and no murder weapon
was recovered, so he was also challenging sufficiency of the evidence. Rogers was employed
as a nurse at Mt. Sinai Hospital in New York,
and lived in Staten Island at the time the murders were shown to have occurred.
New York — Criminal charges are pending
against Eric Hyett, arrested for abducting the
young boy and that he and his estranged samesex spouse had jointly adopted and taking the
boy to Israel. According to a story in the New
York Times on Aug. 28, Hyett and Joshua Glazer
were married in Massachusetts on the date the
Goodridge decision went into effect, May 17,
2004, and then had their child, Jedidiah,
through the services of a surrogate mother. The
men separated during 2007. Glazer, primary
custodian of the child, lives in Manhattan, and
Hyett’s home is in Boston. New York Family
Court issued a joint custody order giving Hyett
weekend visitation rights. While exercising his
visitation recently, Hyett asked to have a few
extra days, to which Glazer acquiesced. Hyett
decamped with the child to Israel, setting off fevered coverage in NYC tabloids when the child
was reported missing and then abducted. A
NYC police detective called Hyett’s cell phone,
learned he was in Israel, and notified Glazer,
who went to Israel to reclaim his son. Hyett had
insisted in his conversation with the detective
that he could not be extradited from Israel, but
the Family Court in Israel, to which Glazer applied to recover his child, ruled that the New
York Courts have jurisdiction of the matter and
that the child belongs in Glazer’s custody. A
Manhattan assistant district attorney quoted by
the Times said that Hyett’s behavior should disqualify him from further visitation rights, and
criminal charges are pending against him. In
addition to abduction, Hyett faces charges for
using a false driver’s license to obtain a passport for the child.
Pennsylvania — The Pennsylvania Supreme
Court affirmed a ruling by the Commonwealth
Court that the legislature had violated the state
constitution by adopting amendments to the
ethnic intimidation statute by the device of substituting language on this topic for the text of an
agriculture bill that was then pending. Apparently, the state constitution forbids this kind of
procedural sleight of hand, requiring that once
a bill is introduced, it may not be enacted unless the subject matter remains, broadly speak-
Lesbian/Gay Law Notes
ing, the same as that when it was introduced.
Usually no challenge is made to state laws enacted in this manner, but when somebody’s ox
is gored and they are willing to litigate, invalidation may be the result. In this case, an antigay preacher and his followers who were
charged under the act for their conduct in disrupting gay community events struck back by
challenging the bona fides of the law, and they
have prevailed. So the hard-fought accomplishment of getting the not-particularly-gayfriendly Pennsylvania legislature to include
sexual orientation and gender identity in the
ethnic intimidation law is back to square one.
The Commonwealth Court ruling, which the
Supreme Court adopted on July 23, 2008, as its
own without writing a new opinion, can be
found as Marcavage v. Rendell, 936 A.2d 188
(Pa. Cmwlth. 2007), aff’d, 951 A.2d 345 (July
23, 2008).
Texas — The Dallas Morning News reported
on August 1 that Dallas County prosecutors had
decided not to pursue hate crime charges
against Bobby Singleton and Jonathan Gunter,
arrested on charges of aggravated robbery with
a deadly weapon, who are also being held in the
anti-gay beating of Jimmy Lee Dean, who was
kicked and hit with a handgun, was hospitalized with serious injuries, and was actually unable to speak with investigators for at least 24
hours after the incident. Witnesses had told police officers that the defendants shouted antigay slurs at Dean while beating him up. The
prosecutors determined that the defendants already faced the maximum penalty if convicted,
so a hate crime charge would add nothing to
their potential sentence, while imposing additional proof burdens on the prosecution. A.S.L.
Legislative Notes
Federal — On July 23, the House Armed Services Personnel Subcommittee held the first
oversight hearings on the “don’t ask, don’t tell”
policy on military service by gay people since
the policy was adopted by Congress in 1993. A
measure is pending in Congress to reverse the
policy, but this hearing was not held specifically on that legislative proposal, which will not
be seriously taken up during the current term of
Congress. Rather, the hearing was devoted to
developing a record on the impact of the policy,
its erratic administration, and the lack of necessity for it, in terms of the oft-recited justifications articulated in the “findings” section of the
1993 statute. The witness list included advocates on both sides of the issue, and the Washington Post (July 24) reported that the anti-gay
witnesses were so outrageous that they seemed
to be making the case on behalf of the pro-gay
advocates. One witness in particular, Elaine
Donnelly, representing an organization called
the Center for Military Readiness, whose main
goal has been to minimize the role of women in
Lesbian/Gay Law Notes
the military, seemed to be channeling the most
salacious bits of the 1993 Congressional hearing testimony, about barracks, showers, forced
intimacy and the like, and was caught short by
questioning from a member of the subcommittee who is a military veteran, Rep. Vic Snyder
(D-Ark), who accused her of insulting the
American military by suggesting that U.S. personnel could not handle the inclusion of
openly-gay personnel as well as the military
forces of two dozen other countries that have
specifically allowed openly-gay people to
serve, including our major military allies in the
Middle East.
Massachusetts — Moving to make marriages
of same-sex couples in Massachusetts more
equal to marriages of different sex couples, the
legislature approved and Governor Patrick
signed into law a bill amending the state’s
Medicaid law as follows: “Notwithstanding the
unavailability of federal financial participation,
no person who is recognized as a spouse under
the laws of the commonwealth shall be denied
benefits that are otherwise available under this
chapter due to the provisions of 1 U.S.C. sec. 9
[the Defense of Marriage Act] or any other federal non-recognition of spouses of the same
sex.” The bill was passed with the understanding that the state would appropriate the necessary money to substitute for unavailable federal
funds under the jointly financed Medicaid program.
Missouri — On July 11, Governor Matt Blunt
signed into law Senate Bill 1139, which will
have the effect of allowing same-sex partners
and other non-married couples to circumvent
the right of legal families to have post-mortem
control of an individual’s body by executing durable powers of attorney. The overall bill is devoted to revising and modernizing the Missouri
statute governing the activities of coronors and
medical examiners, but it includes an amendment to the existing priority list of “next-of-kin”
who have the right to determine disposition of a
dead body. The amendment inserts an individual designated by the deceased in a properly
executed durable power of attorney at the head
of the list, before any legal relatives of the individual. Interestingly, by operation of this statute, a person can even cut out their spouse by
designating somebody else as the person
authorized to make post-mortem decisions
about disposition of the body.
New York — On July 22, Governor David
Paterson signed into law A11707/S8665, which
amends the domestic violence law to make it
possible for those who have an “intimate relationship” with their abuser to get a civil order of
protection. Previously, only criminal orders of
protection were available in such circumstances, and advocates for people who are victims of domestic violence persuasively showed
that this had deterred many people from seeking law enforcement assistance. The measure
September 2008
also provides for the Office for the Prevention of
Domestic Violence to provide training for
judges and their staffs. New York Law Journal,
July 23.
New York — Oneonta — The Otsego County
Board of Representative voted on Aug. 20 to
overturn an administratively adopted amendment to the county’s employee health plan that
would have expressly excluded same-sex couples from coverage. Board members expressed
unhappiness that the county’s Treasurer, Myrna
Thayne, had unilaterally adopted the rule without any vote in the Board. Oneonta Daily Star,
Aug. 22. A.S.L.
Law & Society Notes
Federal — The U.S. Census Bureau stirred up
some controversial when it announced that because of the Defense of Marriage Act, it would
not be able to count same-sex couples as married in compiling and releasing data for the U.S.
Census in 2010, even if they are considered
married under state law or the laws of another
country. The Bureau announced that any
same-sex couple listing themselves on a census
form as married will have their form revised by
the Bureau to designate them as unmarried
partners for purposes of census tabulations.
The Bureau followed this policy in 2000, when
some people who had religious ceremonies
tried to respond as married to Census questions. Since 2000, of course, several countries
around the world and two U.S. states have allowed same-sex couples to marry, and those
marriages are legal and valid where performed
but not in the eyes of Congress, which seems to
have a mote in its eye on this issue. Martin
O’Connell, Chief of the Bureau’s Fertility and
Family Statistics Branch, indicated that they
had been looking at this question for some time,
and concluded they could not change on the
policy “on a whim, because our data is used by
virtually every federal agency.” He insisted that
they were not falsifying people’s responses, as
they would keep the original forms on file, but
just translating them into federally acceptable
definitions for purposes of the federal enumeration. Bureaucratic crap, we say.
Arizona — Arizona Attorney General Terry
Goddard wanted the state’s voters to know that
the constitutional amendment initiative on the
ballot seeking to ban same-sex marriage is
merely restating what state statutes already
provide: a ban on same-sex marriage. But Secretary of State Jan Brewer filed suit to strike explanatory matter that Goddard wanted to add to
the ballot, claiming it was adequate to tell voters that the measure would have the “effect of
retaining the current laws regarding marriage.”
Brewer claimed voters would be confused if
they were told, in effect, that the amendment
was superfluous. Arizona Daily Star, Aug. 22.
After the initial flurry of press attention on the
179
case, the two officials reached an agreement to
settle the lawsuit, when Brewer agreed to the
language that Goddard wanted, in exchange for
Goddard’s agreement to add language indicating that if the measure was rejected, Arizona
would have a only a statute, not a constitutional
amendment, defining marriage as the union of a
man and a woman. A lawsuit might have been
superfluous, in any event, because the process
of printing voter pamphlets and ballots had to
move forward and would not be delayed unless
a court issue preliminary relief, which seemed
unlikely. Arizona Daily Star, Aug. 27.
Arkansas — On August 25, Secretary of State
Charlie Daniels certified that sufficient valid
signatures had been submitted to place an initiative on the ballot to amend state law so as to
forbid unmarried couples from serving as foster
or adoptive parents in the state. Although the
measure targets all unmarried couples, it is
specifically inspired by opposition to allowing
same-sex couples to serve in these capacities.
The opposition was stirred up after the Arkansas Supreme Court ruled in Department of Human Services and Child Welfare Agency Review
Board v. Howard, 238 S.W.3d 1 (Ark. 2006),
that a regulation excluding same-sex couples
from being foster parents violated the relevant
statute because it was not adopted to advance
the best interest of foster children. Associated
Press, Aug. 26, 2008.
California — The State of California’s Franchise Tax Board has issued an advisory, FTB
Notice 2008–5, titled “California Income Tax
Treatment and Tax Return Filing Obligations of
Same-Sex Married Couples,” which provides
advice about how to comply with the state’s personal income tax law for newly-married samesex couples. Any couple that is married as of
the end of their tax year will be subject to the
rules governing taxation of married couples,
and there are various issues to consider, especially in relation to withholding requirements,
since aggregation of incomes may result in putting the couple into a higher tax bracket with
potentially larger tax liability than they had as
single people filing individually. Because there
are penalties under California law for underwithholding, same-sex couples, both of whom
have incomes, are advised to consult with a tax
advisor about whether adjustments to their
withholding will be needed, and are reminded
that they will need to prepare a dummy federal
return (as if their marriage was recognized under federal law) to generate some of the figures
they will need to file their state return.
Colorado — An openly gay business entrepreneur, Jared Polis, beat two opponents to win
the Democratic nomination for Congress from
the 2nd Congressional District in a primary
election held early in August. If elected as expected in the heavily Democratic-leaning district, Polis would be the first openly gay nonincumbent to be elected to Congress, and the
180
first openly gay representative in Congress from
Colorado. (Several openly-gay men have served
in Congress, but none was “out of the closet”
when first elected.) Polis’s sexual orientation
was not an overt issue during the primary, as his
opponents were all liberal Democrats with
similar positions on gay rights issues. Denver
Rocky Mountain News, Aug. 13.
Connecticut — The ACLU announced that
H&R Block, the tax preparation service, had
responded to the complaints of Connecticut
civil union couples who found themselves unable to use the company’s on-line tax filing
service, encountering the message that the
service did not “support Connecticut civil union returns.” Block will make available coupons on-line to couples who could not use their
service due to this problem in 2007, good for
$100 towards use of the service in 2008. Block
will alter its software to direct civil union filers
to a free online support specialist to help them
complete their Connecticut returns. The $100
coupon is available at 222.taxcut.com/tax_tips/aclu.html. Of course, only
those who tried to use the service in 2007 and
were defeated by this problem are entitled to
the coupon. As an alternative to the coupon,
Block offers free TaxCut software to eligible
Connecticut civil union couples.
Louisiana — Governor Bobby Jindal decided to allow an executive order banning sexual orientation discrimination to lapse upon its
expiration August 27. The order had been issued in 2004 by former Governor Kathleen
Blanco, after a predecessor had allowed an earlier such executive order to expire. Jindal, a
conservative Republican, said that he thought
it was not necessary “to create additional special categories or special rights,” as “state and
federal law already prohibits discrimination.”
He also stated that he was “firmly and strongly
committed to fair treatment of all our people
and certainly don’t condone discrimination in
any form.” Of course, neither Louisiana nor
federal law prohibits sexual orientation discrimination, so Jindal lied, as his action clearly
communicates that he believes state agencies
should be free to discriminate on the basis of
sexual orientation. As he pointed out, the ban
on sexual orientation was troubling to religious
state contractors, for whom he has the deepest
sympathy, and he evidently believes they
should not be constrained by the requirement
not to discriminate against gay people. Baton
Rouge Advocate, August 21.
Maryland — Montgomery County — Voters
in Montgomery may be presented in November
with a ballot initiative seeking to repeal a measure banning discrimination on the basis of gender identity that was adopted by the County
Council last November. Equality Maryland, an
LGBT advocacy and education group in the
state, filed a challenge to the initiative with the
Montgomery County Circuit Court, claiming
September 2008
that the number of valid signatures submitted
fell short of the required percentage of registered voters, but Judge Robert A. Greenberg
found that the challenge was filed a few days
late and was thus time-barred. Doe v. Montgomery County Board of Elections, No. 293857–V
(Mont. Co. Cir. Ct., July 24, 2008). An appeal of
this ruling was contemplated. BNA Daily Labor
Report, 2008 No. 144, A–9.
Michigan — Grand Valley State University
trustees voted on July 18 to provide health insurance coverage for unmarried partners of the
school’s employees. The benefit will apply to
any live-in partner, regardless of gender, who is
an “unrelated adult” and has resided with the
employee for at least 18 months. Because the
state’s anti-marriage amendment forbids benefits focused solely on same-sex partners, many
schools in the state that want to remain competitive in recruiting faculty have opted for the
more wide-ranging option of benefits eligibility
for all non-marital partners. Grand Rapids
Press on-line blog, July 18.
New York — The Associated Press reported
on July 22 that New York Attorney General Andrew Cuomo had reached agreements with
AT&T, AOL, Verizon, Sprint Nextel and Time
Warner to block access to child pornography on
their internet access services, and was threatening suit against Comcast the nation’s second
largest internet service provider if it did not fall
into line with a similar agreement. The agreements extend both to websites and to newsgroups that contain links to child pornography.
Although Comcast has signed on to an industry
statement against child pornography, Cuomo
indicated this was not good enough since the
statement was not strong enough on the issue of
newsgroups where people post links to offensive material. Cuomo is also looking for Comcast, in common with the other ISP’s, to agree to
report to law enforcement any child pornography that is discovered. Comcast indicated that
negotiations were ongoing with the NY State
Law Department.
Ohio — The faculty union at Kent State University, a local chapter of the American Association of University Professors, negotiated a
collective bargaining agreement covering tenured faculty that will include domestic partnership benefits for same and different sex unmarried partners of faculty members, according to
an Aug. 5 report in the Akron Beacon Journal.
Oregon — Although the state amended its
constitution in 2004 to limit marriage to
different-sex couples, such action is not binding on Native American tribes who retain their
sovereignty under treaties with the U.S. government, and so it was possible for the Coquille
Tribe on the southern Oregon coast to decide
that they would allow same-sex marriages. According to an Aug. 20 article on the blog oregonlive.com, the tribe recently voted to recognize same-sex marriage and extend to same-sex
Lesbian/Gay Law Notes
partners, at least one of whom must be a member of the tribe, all tribal benefits of marriage.
However, since the tribe’s self-governing legislative authority is subject to a federal treaty, a
question remains whether any legal dispute
arising out of this decision would founder on the
federal Defense of Marriage Act, according to a
University of Vermont anthropology professor,
Brian Gilley, who has writtten a book on gay
identity in Native American tribes and was
quoted in the article. Gilley claims this was the
first affirmative action by a Native American
tribe to embrace same-sex marriage, noting that
a handful of other tribes have actually taken the
opposite path of legislating against same-sex
marriage. A.S.L.
International Notes
United Nations — The U.N. Economic and social Council (ECOSOC) voted to grant consultative status to COC Netherlands and the State
Federal of Lesbians, Gays, Transsexuals and
Bisexuals of Spain, both national LGBT rights
organizations. The groups were approved on
July 21 and 22, respectively, following action
over the past few years approving consultative
status for the Danish National Association for
Gays and Lesbians, the Lesbian and Gay Federation in Germany, the Gay and Lesbian Coalition of Quebec, and the Swedish Federation for
Lesbian, Gay, Bisexual and Transgender
Rights. A US-based group, International Wages
Due Lesbians, and an Australian group, the
Coalition of Activist Lesbians, were granted
consultative status about a decade ago. Attempts to gain such status for more broadlyinclusive US LGBT rights groups have proven
unsuccessful, mainly due to a panic during the
1990s around unsubstantiated charges that
U.S. groups had some sort of relationship with
the North American Man-Boy Love Association
(NAMBLA). Repeated disavowal of NAMBLA
and its goal of removing age of consent laws for
sex has failed to satisfy the world body and remove the “taint” in its eyes for prominent US
organizations. ••• Consultative status gives
non-governmental organizations an opportunity to participate in the activities of U.N. agencies and to be heard on questions of interest to
them in U.N. forums.
Anglican Communion — The Lambeth Conference ended without any vote on a resolution
concerning homosexual rights issues in the
church, to the relief of many, avoiding an open
schism. Dr. Rowan Williams, the Archbishop of
Canterbury and administrative head of the international Anglican Communion purposely
structured the international conference to avoid
votes on the gay issues that are wracking the
church. However, just at the end of the Conference, the press surfaced some old correspondence in which Williams had stated liberal
views about homosexuality, thus undermining
Lesbian/Gay Law Notes
the confidence he had sought to build among all
branches of the church membership.
Argentina — A governmental decree
adopted in August provides that if same-sex
couples have been living together at least five
years, a surviving partner can claim the same
pension rights as a surviving widow or widower.
According to local activists, this is the first
nation-wide gay rights measure to be approved
by the Argentine government, although some
local government units have adopted pro-gay
policies. For example, Buenos Aires and Rio de
Janeiro seem at times to be in a competition for
gay-friendliness, as both cities tout themselves
as prime tourist destinations for gay travelers.
Prior to this new policy, deceased partners’
pensions would escheate to the government, as
they would be treated as having died without a
legal heir.
Australia — A $10,000 settlement goes to
Suzanne Richards and Sarah Dobinson, a lesbian couple, who say they “shook with belief”
when they saw that a realtor who was handling
the sale of their house had added the word “lesbians” to an online advertisement. They
claimed that the agent violated discrimination
laws, asserting: “Linking our home address
with our sexuality could have ruined our lives.”
(Perhaps they have a neighbor like Nicholas
Weisz of Ft. Lauderdale, Florida, as per the report on Weisz v. Clair, 2008 WL 2812958
[Fla.Dist.Ct.App., 4th Dist., July 23, 2008], as
to which see above.)
Bahrain — A member of the Parliament,
Mohammad Khalid, called on the government
to implement a proposal that was approved in
the lower house of the Parliament earlier this
year to deny entry of homosexuals into the
country, and deport any homosexuals discovered to be engaged in illegal activities, and to
increase punishments for any students found to
be experimenting with homosexuality. Khalid
also denounced the epidemic of cross-dressing
that he asserted has become common in girl’s
schools, and warned that allowing homosexuals
to live in the country will have an adverse effect
on social stability, especially due to prostitution
and sexually-transmitted diseases. Gulf News,
July 28.
Brazil — The lower house of Congress rejected a provision in a pending adoption law
that would have allowed same-sex couples to
adopt children. The chamber issued a statement that such adoption would not be appropriate as the government does not recognize
same-sex civil unions or marriages. A legislative proposal for civil unions has been introduced in the Congress, but has languished for a
decade without action. According to an Associated Press report on Aug. 21, the state of Southern Rio Grande do Sul has had same-sex civil
unions since 2004, and a same-sex couple was
approved as adoptive parents to a young girl in
September 2008
late 2005 by the Sao Paulo state court. IHT,
Aug. 21
Canada — Ontario Superior Court Justice
David Corbett is the target of a campaign by a
right-wing group calling itself Real Women of
Canada. The group wants Corbett to recuse
himself from sitting on any case involving gay
rights, because he spoke at a Gay Pride festival
in Halifax in July and, prior to his appointment,
served as a lawyer for an Ontario teenager seeking to compel a Catholic school to allow him to
bring his boyfriend to his school prom. Globe
and Mail, July 29.
Costa Rica — Agence France-Press reported
on August 10 that the highest court in Costa
Rica rejected an appeal from a prison inmate
who had been denied conjugal visits with his
same-sex partner. In what was described as a
“brief ruling,” the court said that the decision
to grant or deny same-sex conjugal visits was
within the discretion of prison authorities, not
subject to judicial review. However, the news
report indicated that the court is deliberating
on a similar case involving heterosexual inmates.
Dubai — Gay tourists not welcome in Dubai!
Pass the word. The Independent, a UK daily
newspaper, reported on July 18 that 17 foreigners had been arrested “for allegedly displaying
homosexual behavior in the city’s shopping
centres and other public places.” (Evidently,
shopping ‘til you drop is highly suspect in the
United Arab Emirates, despite efforts to promote capitalism in the region....) Around the
same time, according to The Independent, Dubai’s police chief told Gulf News that they had
arrested “40 cross-dressing tourists” as part of
a campaign against “transvestites.”
Germany — The Karlsruhe-based Constitutional Court ruled on July 23 that “a man seeking legal recognition as a woman will be allowed to stay married to his wife,” according to
a report on thestar.com. The court struck down
as unconstitutional a requirement that married
transsexuals divorce before their sex change
can be legally recognized, saying this was a violation of basic human rights. The plaintiff in the
case, a man born in 1929 who has been married
for 56, had gender reassignment surgery in
2002 but had been blocked from obtaining legal recognition as a woman because he did not
want to divorce his wife, who also did not want
the marriage to be dissolved, seeming content
to live with a girlfriend in her old age. The article asserts (undoubtedly an unduly low estimate) that there are about 1,000 transsexuals in
Germany.
Greece — A Greek judge, Maria Petsali, rejected a lawsuit by some inhabitants of the island of Lesbos who sought to enjoin the use of
“lesbian” in the name of a Greek gay rights organization. The plaintiffs had claimed that their
right to regional identity was undermined when
a sexual rights movement had appropriated
181
their regional name for its political purposes. In
press reports, spokespeople for the group said
that they wanted the right to call themselves
Lesbians, i.e., inhabitants of Lesbos, without
having any connotations about their sexuality
as a result. Well, that horse has long since left
the open barn door, we guess, since the judge
found their claim lacking in merit, and advised
that they shouldn’t consider the use of the word
insulting to them. But a leader of the plaintiff
group, one Dimitris Lambrou, called the court’s
opinion an “insult” and vowed to take the case
to the European Court of Human Rights. Wire
Services, July 23.
Italy — The government has been ordered to
pay damages of 100,000 euros to Danilo Giuffrido, who suffered sexual orientation discrimination at the hands of the motor vehicle bureau
in Sicily. It seems that Giuffrido told doctors he
was gay during a medical examination for military service. The information was recorded in
his file, and was then accessible to other government agencies. The transport ministry evidently believes that gay people suffer from a
“sexual identity disturbance” that makes them
a risk on the road, because it required him to repeat a driving test he had already passed and
refused to renew his driver’s license for the customary ten years, instead requiring an annual
retesting for renewal. The judge in Catania, Sicily, said that the actions of the defence and
transport ministries in this case showed “evident sexual discrimination.” BBC News Online, July 14.
Malta — Joanne Cassar, a male-to-female
transgender person, is suing for the right to
marry as a woman. Having been turned down
by local authorities, despite having been declared legally female after completing gender
reassignment surgery, she has made a constitutional application to the First Hall of the Civil
Court. Cassar claimed that Malta court rulings
in her case conflicted with precedents of the
European Council on Human Rights, point particularly to the U.K.
Netherlands Antilles & Aruba — The Daily
Herald reported on July 28 that the Court of
First Instance in Willemstad ruled that samesex couples have the same rights as differentsex couples, and that all marriages contracted
in the Kingdom of the Netherlands, including
in colonies, were entitled to equal treatment
under the law. The case arose from a decision
by the Bureau of Health Insurance in Curacao
to deny coverage under an insurance program
to a covered individual’s same-sex partner and
the partner’s child.
Panama — According to an on-line news report by Rex Wockner, Panama’s President Martin Torrijos Espino signed a decree on July 29
repealing the nation’s criminal sodomy statute,
which dated from 1949. The decree, which was
initiated by the Health Ministry, asserted that
the law violated the nation’s constitution as well
182
as international human rights treaties to which
Panama is a signatory, and also conflicted with
the Health Ministry’s policy to “maintain respect for the sexual preferences of each person,
without the existence of any type of discrimination” in the operation of programs dealing with
sexually transmitted diseases. Wockner reports
data from Amnesty International on the sodomy
law situation in the region, noting that eleven
nations in Central America, South America and
the Caribbean continue to maintain criminal
penalties for sodomy.
United Kingdom — MI5, the nation’s secret
intelligence agency, has teamed up with Stonewall, the nation’s GLBT rights advocacy group,
for help in recruiting GLBT people to apply for
positions with the agency. This marks an interesting turnabout, since gay people wee being
identified by MI5 and drummed out of government service back in the 1940s and 1950s as
“security risks.” British intelligence has apparently awakened to the fact that “out” gay
employees can perform as well as any others,
and present no categorical elevated risk of security breaches. The Australian, Aug. 18.
United Kingdom — An Employment Tribunal ordered the Presbyterian Church of Wales
to pay a gay employee more than 36,000
pounds for compensation after finding that he
had been subjected to a hostile environment by
his manager, who engaged in name-calling and
other undesirable practices. His claim of constructive dismissal was also upheld. The judge
said that Stephen Price was subjected to “grotesquely discriminatory conduct.” Price, who
has found new employment, said, “I haven’t
September 2008
lost my faith, but I don’t want to pursue a career
in the church.” Western Mail, July 16. A.S.L.
Professional Notes
National — At the annual Lavender Law Conference, the National Lesbian & Gay Law Association (NLGLA) will present its 2008 Dan
Bradley Award to Shannon Minter and Therese
Stewart, who successfully represented National
Center for Lesbian Rights plaintiffs and the
City of San Francisco in presenting the samesex marriage case to the California Supreme
Court. Minter is Legal Director at NCLR.
Stewart is the Chief Deputy City Attorney for
San Francisco. The awards will be presented
during the conference in San Francisco the first
weekend in September. The keynote speaker
for the conference will be Phyllis Randolph
Frye, one of the nation’s preeminent transgender rights attorneys. ••• NLGLA also announced that its Allies for Justice Award, presented each year in conjunction with the
American Bar Association’s summer meeting,
was given to Veta Richardson, Executive Director of the Minority Corporate Counsel Association. NLGLA saluted Richardson for consistently including LGBT issues in her work at
MCCA, including in a publication she planned
and published on legal workplace diversity that
specifically incorporated LGBT-specific recommendations.
Florida — The ACLU of Florida announced
an expansion of its LGBT Advocacy Project
with the hiring of an additional full-time staff
attorney, to be based in Tampa, and a Field Coordinator whose immediate job is to help lead
Lesbian/Gay Law Notes
the fight against passage of the Florida Marriage Amendment. The new staff attorney,
Shelbi Day, had been working in the Southern
Regional Office of the National Center for Lesbian Rights. Robert Rosenwald, based in Miami, is the director of the LGBT Advocacy Project.
New York — Aaron Charney, the gay associate who sued Sullivan & Cromwell for sexual
orientation discrimination last year and was
countersued in turn, leading to a settlement of
the litigation last fall, will be joining the Mergers & Acquisitions Department in the New York
office of a large international London-based
firm, Clifford Chance, according to a July 28 report on abovethelaw.com that was confirmed by
a July 29 article in the New York Law Journal.
Charney’s hiring by CC puts an end to the
speculation last year that bringing suit against
Sullivan & Cromwell meant career suicide for
Charney at least in terms of employment at a
major law firm doing M&A work. However,
David Lat of abovethelaw.com reported speculation from a source inside CC that the firm
“may want to improve its standing in the gay
community after settling a sexual orientation
lawsuit brought by a gay partner in London last
year.” We are struck that big firms have evolved
to the point where they really care about the
reputation they project in the gay legal community.
Pennsylvania — Equality Advocates Pennsylvania, a public interest law firm specializing
in LGBT issues, announced that Stacey Sobel is
stepping down from her position as executive
director, a position she has held since April
2001. Pamela Leland will serve as interim executive director while the organization’s board
conducts a search to fill the position permanently. A.S.L.
AIDS & RELATED LEGAL NOTES
Appeals Court Holds “Engaging in Sex” is a
Major Life Activity under Rehabilitation Act
In a ruling that could prove beneficial to the
claims of HIV+ gay men under federal disability discrimination laws, the U.S. Court of Appeals for the D.C. Circuit ruled on July 18 that
“engaging in sexual relations” is a “major life
activity,” and thus a person who is “substantially limited” in their sex life as a result of a
physical or mental impairment could be considered an “individual with a disaiblity.” Adams v. Rice, 2008 WL 27779903 (July 18,
2008). The case bears a strong resemblance to
cases involving the continuing refusal of the
State Department to hire HIV+ applicants for
the Foreign Service.
Kathy Adams was a top applicant for the Foreign Service in 2003, having received high
scores on the relevant exams and medical
clearance for foreign assignment. She had been
assured that based on her credentials she
would most likely be offered a Foreign Service
posting by the beginning of 2004. However, in
mid-August of 2003, she received a diagnosis
of stage-one breast cancer, for which she opted
to undergo mastectomy and reconstructive surgery. The procedure was quickly carried out,
and she went through a relatively brief recovery
period, after which her doctor certified her as
“cancer-free” and fit to resume her regular life.
In particular, her doctor opined that there was
no medical reason she could not travel and
work overseas.
When Adams notified the State Department
about these developments while awaiting assignment, the Department sought full details
and statements from her doctor, then reclassified her to a medical clearance level that precluded overseas assignment, on the ground that
it would be in Adams’ “best interest” to remain
in the U.S. and not join the Foreign Service.
When pushed, the State Department took the
position, similar to that it has taken in the
HIV+ foreign service applicant cases, that
every Foreign Service worker needs to be available for assignment to any post, and that in a
high percentage of postings, there is no access
to sophisticated medical care and specialists.
Adams countered that she did not need such
access. Her only follow-up to the treatment, as
required by her doctor, was to take medication
for which an annual supply is easily portable
and requires no special storage, to have a breast
examination every six months, and to have an
annual mammogram. Specialists were not required, and the mammogram could be scheduled during vacation time. State would not
budge, and Adams filed her discrimination
charge, first with the EEOC and then in federal
district court. The district judge granted summary judgment to the State Department, finding
that Adams did not qualify as an individual with
Lesbian/Gay Law Notes
a disability under the Rehabilitation Act, the
statute protecting federal job applicants and
employees from disability-based discrimination.
Under current Supreme Court precedents, a
person who is not currently experiencing the
substantial impairment of a major life activity
does not have a disability, but the statute also
brings within its definition those who have a
“record” of a disability, or who are regarded by
an employer as having a disability. In this case,
the court of appeals found in an opinion by
Judge David Tatel, Adams apparently qualified
under the “record” prong of the definition. In
order for her breast cancer, in its now
successfully-treated state, to qualify as a disability for this purpose, it would have to be
shown that it substantially impaired one of her
major life activities.
The court found potentially persuasive her
argument that, in common with other breast
cancer survivors, she suffered substantial impairment in the major life activity of engaging in
sexual activity. Both the physical results of
mastectomy and its psychological impact on
body image and sexual desirability were noted
in Adams’ affidavit in opposition to the government’s motion for summary judgment. While
these allegations are subject to proof in a ruling
on the merits, for purposes of a pre-trial motion
the court accepted them as true and found that
they would suffice to meet the statutory pleading requirements.
The court gave particular weight to the Supreme Court’s only HIV-related ruling, Bragdon v. Abbott, 524 U.S. 624 (1998), in which the
Supreme Court found that an HIV+ woman of
child-bearing age and capacity could allege
that she was substantially impaired in the major
life activity of reproduction and associated sexual activity, for purposes of finding coverage
under the public accommodations title of the
Americans With Disabilities Act (ADA). (Although they cover different workplaces, the Rehabilitation Act and the ADA share the same
definitions of disability for purposes of determining coverage, and are construed to have the
same meaning.) Tatel observed that the State
Department did not even discuss Bragdon in its
summary judgment motion papers, but he
found it to be right on point.
“Based on the statute’s text, the Supreme
Court’s reasoning in Bragdon, and a hefty dose
of common sense, we hold that engaging in sexual relations qualifies as a major life activity
under the Act,” he wrote. “At the risk of stating
the obvious, sex is unquestionably a significant
human activity, one our species has been engaging in at least since the biblical injunction to
‘be fruitful and multiply.’ Genesis 1:28. As a
basic physiological act practiced regularly by a
vast portion of the population, a cornerstone of
family and marital life, a conduit to emotional
and spiritual fulfillment, and a crucial element
September 2008
in intimate relationships, sex easily qualifies as
a ‘major’ life activity. Bragdon supports this
self-evidence conclusion.” He noted that the
Justice Department’s Office of Legal Counsel
had argued in a brief filed in Bragdon that was
quoted by the Court in its opinion, that “the life
activity of engaging in sexual relations is threatened and probably substantially limited by the
contagiousness of the virus.”
Significantly, Tatel did not see the major life
activity narrowly as reproductive activity, but
described it more broadly for its psychological
and social significance in the life of the individual, in language that even evokes (without citing) the Supreme Court’s description of the
central role of sexual relationships in Lawrence
v. Texas, in which it found that such activity is
part of the liberty interest protected by the 14th
Amendment against state criminal law intervention.
This ruling by the D.C. Circuit is potentially
very useful for HIV+ gay men, some of whom
have encountered difficulties with lower federal courts that have given Bragdon a restricted
meaning to apply only to reproductive activity.
For these courts, if an HIV+ gay man cannot
persuasively show that they had decided to
forego long-cherished desires to have a child
through the donation of their sperm as a result
of learning of their HIV-status, then they were
not substantially limited in the major life activity of reproduction. These courts conveniently
overlook the Supreme Court’s emphasis on sexual relations as well as reproductive activity.
The D.C. Circuit’s decision in Adams provides
a useful reminder that Bragdon casts a wider
precedential net.
Some of this will become irrelevant, however,
if the 2008 amendments to federal disability
discrimination law, approved by the House this
spring, are finally enacted, since they would alter the definition of disability to overrule several Supreme Court opinions. The 2008
amendments would have courts follow what was
clearly the original intent of Congress when it
enacted the ADA (and amended the Rehabilitation Act to conform its definition provisions
with the ADA), and evaluate plaintiffs’ claimed
disability without regard to treatment or mechanical assistance. Thus, the impact of untreated HIV infection on a person’s immune
system would suffice under the amended definition to qualify them as an individual with a
disability, regardless of how well their infection
is being controlled by medication.
(Judge Tatel and the D.C. Circuit are on a roll
with disability discrimination law. Just a few
weeks earlier, he wrote a decision for the court
finding that “sleeping” is a major life activity,
such that an individual whose ability to sleep
has been adversely affected by post-traumatic
stress disorder can be found to be substantially
impaired in a major life activity. See Desmond v.
183
Mukasey, 2008 WL: 2583022 (D.C. Cir., July 1,
2008).) A.S.L.
Federal Court Continues Injunction Against
Compelled Speech for HIV Funding Recipients
U.S. District Judge Victor Marrero issued a new
ruling on August 8 in the long-pending case of
Alliance for an Open Society v. U.S. Agency for
International Development, 2008 WL 3361379
(S.D.N.Y.), holding that certain associations of
organizations doing HIV prevention work overseas could be added to the lawsuit as coplaintiffs, and that a preliminary injunction
should be continued in effect against a provision requiring private sector recipients of HIV
prevention funding from the federal government to maintain policies “explicitly opposing
prostitution and sex trafficking.”
On May 9, 2006, Judge Marrero had issued
his initial ruling authorizing injunctive relief
against the ideological requirement in 22
U.S.C. sec. 7631(f), that Congress sought to impose on some funding recipients under what
was popularly known as the U.S. Leadership
Against HIV/AIDS Act of 2003. The statutory
requirement specifically exempted the Global
Fund to Fight AIDS, Tuberculosis and Malaria,
the World Health Organization, the International AIDS Vaccine Initiative, and any U.N.
agency that might receive federal funding under the Act. Thus, Congress would not impose
this ideological requirement on quasigovernmental international organizations, but
sought to impose it on private charitable organizations doing AIDS prevention work overseas.
The original plaintiffs, Alliance for an Open
Society International, Inc., and Pathfinder International, succeeded in persuading Judge
Marrerro that it was a violation of their First
Amendment rights to require them to adopt
such overt policies in order to receive federal
funding in the fight against AIDS, thus the
original preliminary injunction, but the government’s response was that it would deem the injunction to be valid only as to the plaintiffs, and
not as to all potentially affected funding recipients doing this kind of work, while the case was
appealed to the 2nd Circuit. The recipients saw
this as burdensome and counterproductive because in many countries an important part of
their work is engaging prostitutes and other
sex-workers in HIV prevention and education
efforts, and an overtly anti-prostitute policy
would undermine those efforts in countries
where prostitutes are a major vector of HIV
transmission.
The government’s interest in avoiding presenting the impression that it tolerated prostitution if funding recipients were working openly
with prostitutes in a non-judgmental way was
seen as being logically undermined by the express exemption of so many quasigovernmental international organizations, leav-
184
ing the provision vulnerable to a serious First
Amendment challenge when strict scrutiny was
applied to this content based speech-related
provision.
One of the things that plaintiffs were trying to
do, as this case was pending on appeal to the
2nd Circuit by the government, was to get the
complaint amended to add additional plaintiff
organizations, essentially confederations of
many organizational membership associations
whose members are doing the actual work, and
who would then benefit from the preliminary
injunction. The government refused to consent
to such addition, arguing that the additional organizations lacked standing, or that they could
not be added as association plaintiffs because
each of their member organizations would present individualized fact questions about the degree of burden imposed by the restrictions.
Judge Marrero cut through these arguments
and ruled that the additional plaintiffs should
be added, although for technical reasons he
found that one of them could not benefit from
the preliminary injunction.
More seriously at issue, however, was the potential impact of new guidelines that the government has issued on the implementation of
the statutory requirement. Under the guidelines, recipients of the federal money would be
required to spin off as totally separate organizations any entity that wanted to work with prostitutes or sex-traffickers and refrain from adopting overt policies against such activities, in
order to keep getting the money. In other words,
organizations that are struggling to confront a
huge pandemic with insufficient funds are supposed to divert some portion of their resources
to setting up duplicative organizations in order
to preserve the “ideological purity” of the direct funding recipients. Based on this new position by the government, the 2nd Circuit decided to defer ruling on the appeal and send the
case back to Judge Marrero for further consideration.
Marrero saw this for the nonsense that it is,
and reiterated his earlier finding that the government is seeking to impose an unconstitutional condition in this case.
He found the case to be distinguishable from
Rust v. Sullivan, 500 U.S. 173 (1991), the decision that had upheld a federal provision requiring that organizational recipients of federal
funding for family planning activities could not
use abortion as a method of such planning or
provide information or services related to abortion to their clients, and also distinguishable
from a provision of the Legal Services Corporation Act that bans recipients of federal funding
to run legal services organizations from engaging in class action law suits against government
agencies, which was upheld in Velasquez v. Legal Services Corporation, 164 F.3d 757 (2nd cir.
1999), aff’d, 531 U.S. 533 (2001). Rust was
distinguished because it did not require fund-
September 2008
ing recipients to articulate the government’s
position on abortion, but merely not to use government money to advocate for or provide
abortion-related services. Thus, Rust was about
controlling what services will be financed with
government money, not compelled speech as
such. As to the Legal Service case, Marrero
pointed out that this was a content-neutral ban
on class actions, not a content-based ban dependent on the subject matter of the lawsuits.
By contrast, the Leadership Act seeks to compel private organizations to take a political
viewpoint in order to be eligible for funding,
which Marrero ruled in the early case was an infringement of their First Amendment rights.
“Plaintiffs argue that the Guidelines do not
remedy this constitutional defect, and thus also
unconstitutionally compel speech,” he wrote.
“The Court agrees. While the Guidelines may
or may not provide an adequate alternate channel for Plaintiffs to express their views regarding prostitution, the clause requiring Plaintiffs
to adopt the Government’s view regarding the
legalization of prostitution remains intact.
Plaintiffs are still not permitted to abstain from
taking a view with regard to prostitution, but
rather, are required to espouse the Government’s position. Because the Guidelines do not
alter the compelled speech provision of the Policy Requirement, the Court finds, for the same
reasons as stated in AOSI I, that the provision
unconstitutionally compels speech. Therefore,
Plaintiffs have demonstrated a likelihood of
success to warrant the extention of the preliminary injunction ordered in AOSI I.”
The government will surely seek to return to
the 2nd Circuit for a substantive review of this
ruling, but for now the government continues to
be enjoined from compelling funding recipients under the Leadership Act to adopt a specific position against prostitution in order to
continue receiving funds, and the new preliminary injunction also forestalls the need for them
to expend scarce resources on setting up parallel organizations in order to insulate them from
the compelled speech requirements of the statute. A.S.L.
Feds Violated Privacy Act in Investigation of
HIV+ Pilot, But Immunity Bars Emotional
Distress Damages
U.S. District Judge Vaughn R. Walker has
granted summary judgment to the government
on a federal Privacy Act claim brought by a pilot
who suffered suspension of his license after the
Federal Aviation Administration learned that
he had received Social Security disability
benefits in the past due to HIV-related complications. Cooper v. Federal Aviation Administration, No. C–07–1383 VRW (N.D.Cal., Aug. 22,
2008). Although Judge Walker found that both
agencies had violated the Privacy Act, 5 U.S.C.
sec. 552a, with their information-sharing in-
Lesbian/Gay Law Notes
vestigation, he concluded that the defendant
agencies enjoyed immunity from liability under
the Privacy Act because of ambiguity in the law
about whether “emotional injury” qualifies as
“actual damages.” The Supreme Court has
strictly construed the Act in the past as not
waiving the sovereign immunity of the United
States except for cases in which an individual
whose privacy was violated can show “actual
damages.”
According to Walker’s opinion, pilot Stan
Cooper obtained his first FAA license in 1964.
In 1981, because he feared that he might have
been exposed to AIDS, Cooper allowed his pilot’s license to lapse. HIV, the virus associated
with AIDS, was not identified until a few years
later, and in 1985, when screening tests for HIV
became available, Cooper took the test and
learned he was HIV+. Within ten years, he had
developed symptoms of enough severity to
qualify him for Social Security disability benefits, for which he applied in January 1996. But
by lucky coincidence that was the period when
the new protease inhibitor drugs were becoming available, and within several months Cooper’s condition improved under treatment and he
terminated the disability benefits.
In 1998, Cooper applied to the FAA for a new
airman medical certificate, a prerequisite to
getting his pilot’s license reinstated. He did not
disclose his HIV status or the medications he
was receiving on that application form, and
succeeded in getting his license back. He got
the license renewed in 2000, 2002, and 2004,
each time submitting applications that did not
disclose requested information relevant to his
HIV status and medications.
Then Cooper got caught in the new program
that the Department of Transportation (DOT)
Inspector General launched in collaboration
with the Social Security Administration. The
investigation was launched after it was discovered that a pilot had used different doctors to
get disability benefits and to get his medical fitness certified for his pilot license. It occurred to
DOT that a comparison of records between the
two agencies might turn up other pilots who had
failed to disclosed required medical information. Since both agencies used social security
numbers to identify individuals, a numbers
match could turn up pilots who had applied for
disability benefits.
The program was launched as a regional investigation in Northern California. The question whether sharing this information violated
the Privacy Act was considered by the agents
involved from the two agencies, but they decided among themselves that there was no
problem, believing that this use of the records
came within the statutory exceptions for “routine uses” consistent with the purpose for
which the data was collected, and a limited law
enforcement investigation exception. DOT sent
SSA a list of 45,000 Northern California pilots
Lesbian/Gay Law Notes
and their social security numbers and other
identifying information, which SSA compared
against its records, returning spreadsheets listing active pilots who had received disability
benefits. Cooper’s name was on the matching
list, agents from DOT confronted him at a Starbucks, and he confessed, leading to a suspension of his license and prosecution for submitting false information on his FAA forms. The
government publicized the results of the investigation, including making public that Cooper
had failed to disclose his HIV+ status, thus
“outing him” as HIV+ to the general public.
Cooper eventually pled to a misdemeanor and
was fined and sentenced to a two-year probation, after which his pilot’s license was restored.
Cooper claims to have suffered significant
emotional distress as a result of the disclosure
of his HIV status, and decided to file suit
against the two agencies under the Privacy Act.
In an intricately reasoned opinion, Judge
Walker concluded that this information sharing
program did not fall within the routine uses
authorized by statute. In addition, Walker concluded that the exception for criminal investigations applied in situations where somebody
was already a target of such an investigation
and a request was made to SSA for information
relevant to the investigation. The kind of fishing
expedition that the agencies had launched in
this case did not qualify for that exception, either.
However, Walker noted, in construing the
Privacy Act’s provision governing individual
lawsuits against the government, the Supreme
Court has ruled that the government’s liability
is limited to cases where plaintiffs can show
“actual damages,” a term used but not defined
in the statute. Thus far, the Supreme Court has
not ruled on whether emotional injury the only
injury alleged by Cooper in his complaint
would qualify, and neither has the 9th Circuit,
whose precedents would be binding on Judge
Walker in San Francisco.
Two other circuits considered the issue many
years ago, and reached contrary results. This
leaves an ambiguity in the law, which proved
fatal to Cooper’s claim, because he is suing the
government, and under the concept of sovereign immunity the government can only be held
liable where all the elements of the claim are
clearly met under governing legal precedents.
If there is any ambiguity, Judge Walker concluded, then the claim has not been made out,
and summary judgment must be granted to the
government.
Walker’s opinion is couched in terms assuming that Cooper will appeal this ruling, and his
pro bono attorneys at Reed Smith LLP have announced that they will file an appeal on his behalf, expressing outrage that the court could
find a clear statutory violation but no remedy.
A.S.L.
September 2008
AIDS Litigation Notes
Arkansas — U.S. District Judge William R.
Wilson, Jr., accepted a recommendation from
U.S. Magistrate Judge J. Thomas Ray to dismiss
a 42 U.S.C. sec. 1983 claim against W.C. Brassell Detention Center, on the ground that a
prison cannot be sued as an entity under that
section, but to allow actions to go ahead against
five named defendants on charges that they violated the pro se plaintiff’s constitutional rights
when they “housed him with an HIV positive
inmate, who may have infected Plaintiff with
that disease,” and “refused to test any detainees or inmates for HIV, TB, or other contagious
diseases.” As the Magistrate was only serving a
screening function to weed out obviously inadequate claims, he emphasized that the conclusion that the complaint stated a viable claim
under sec. 1983 was for screening purposes only.
McCray v. W.C. Brassell Detention Center, 2008
WL 2859104 (E.D.Ark., July 21, 2008).
California — In Perkins v. Astrue, 2008 WL
3245412 (C.D.Cal., Aug. 7, 2008) (not officially published), Magistrate Judge Arthur
Nakazato found that an ALJ in the Social Security Administration had improperly discredited
a doctor’s opinion concerning the physical capabilities of an HIV+ disability applicant
based on an assumption that the doctor was
bending the facts to help her patient, but that
this was harmless error because the overall record supported the conclusion that the applicant’s disabling condition was not severe or
lengthy enough to qualify him for benefits. In
this case, it appears that the applicant had not
been taking medication for his HIV infection
until he became significantly symptomatic, but
that upon beginning taking medication his condition improved.
Georgia — An HIV+ inmate was not excluded from a court drug program because of
his HIV status, according to an Aug. 22 ruling
by the Court of Appeals of Georgia in Evans v.
The State, 2008 WL 3877158. The court found
that other factors were paramount, commenting
that “Evans was not excluded from participating in the program because of his HIV status,
but because the relatively new program was
ill-equipped to deal with his complicated medical status and multiple medications.” In addition, the court opined that although Evans was
HIV+, he did not necessarily have a disability
within the meaning of the ADA, a statute under
which he was asserting a discrimination claim.
While conceding that HIV positive status is a
“cognizable” disability under the ADA, wrote
Chief Judge Barnes, “In this case, however,
Evans has neither argued nor demonstrated
that either impairment [HIV+ status or mental
disability] affects a major life activity. In fact,
Evans argues that he requires no accommodation to attend the drug court program and that
his health issues are being adequately treated
185
by his doctors. IN the absence of a major life activity impairment, the trial court did not err in
concluding that the ADA does not apply to this
case.”
New York — A single instance of a prison
doctor’s deferral of a referral to an AIDS specialist for an HIV+ inmate did not amount to an
8th Amendment violation, according to the decision in White v. Haider-Shah, 2008 WL
2788896 (N.D.N.Y., July 17, 2008). District
Judge Lawrence E. Kahn adopted a recommendation from Magistrate Judge David E. Peebles
to grant defendant’s motion for summary judgment and to dismiss the complaint in its entirety.
Pennsylvania — In Lopez v. Beard, 2008 WL
3887627 (W.D.Pa., Aug. 1, 2008), an HIV+
prison inmate alleged that his constitutional
rights were violated on two occasions when
relatives were not permitted to visit him. The
court considered credible the prison administration’s defense that on both occasions errors
in enterting data into the prison computer had
led to the visitation denials, not any specific determination to deny visitation because of the
plaintiff’s HIV status. In any event, the court
found, visitation in prison is a privilege, not a
constitutional right, and denial due to clerical
errors did not rise to a constitutional violation.
No evidence was introduced that the prison had
any policy of denying visitation in the case of
HIV+ inmates.
Texas — Upholding a life sentence for an
HIV+ man who was convicted on a charge of
“attempted sexual performance of a child” and
had two prior non-sexual felony convictions,
the Texas Court of Appeals (Dallas) ruled in Atkins v. State of Texas, 2008 WL 2815087 (July
23, 2008) (Not reported in S.W.3d) that the trial
court did not err in allowing introduction of evidence about the defendant’s HIV status, even
though he was not charged in this particular
case with any actual sexual contact. In May
2005, Atkins had lured a 15–year-old boy to his
home with the promise of a job, then sought to
entice him into sexual activity in his bedroom
while a hidden camera was recording the action. The boy, frightened, bolted from the scene
and called his step-father, who reported the incident to police. Subsequent investigation
turned up numerous films of the defendant following a similar course with other men and
boys and, as it turned out, he had been diagnosed HIV+ in 1991. Atkins argued that allowing in the evidence of his HIV-status during
the punishment phase was of no probative
value because there was no evidence he had
transmitted HIV to anybody, because it was
“distracting” to the jury, and because it was not
necessary. The Texas Code of Criminal Procedure gives wide discretion to judges to admit
“any matter the court deems relevant to sentencing.” The court of appeals found this evidence relevant, noting that in connection with
186
evidence of Atkins’ “tendency towards sexually
predatory conduct,” its probative value was
“enhanced.” The court seemed particularly
impressed that the evidence showed “that from
January 1999 to the time his apartment was
searched by the police, appellant engaged in
often-unprotected sex with some 131 unidentified males, conduct that reflects appellant’s
willingness to expose others to the virus and his
reckless disregard for the lives of others,” and
the lack of proof that he had infected anybody
“does not diminish that fact.” The opinion was
by Justice Molly Francis.
Virginia — Should an HIV+ man who is
also a paranoid-schizophrenic who is limited in
his ability to work get some relief from his college loan obligations from the U.S. Bankruptcy
Court? In Hooker v. Educational Credit Management Corporation, 2008 WL 2776226
(U.S.Dist.Ct., W.D. Va., July 16, 2008), District
Judge Samuel G. Wilson directed the Bankruptcy Court to take a new look at Mr. Hooker’s
case. Hooker has fallen far behind on his student loans, although he struggled to pay something on them. He has had limited employment
due to his medical problems, with an adjusted
gross income lower than the cost of his medications, and has been scraping by with charitable
assistance. He sought forebearance on the student loans, and testified in the bankruptcy
court that he had become unable to continue
making payments and still support himself. The
Bankruptcy Law takes a rather stern approach
to student loans that are federally guaranteed,
sharply restricting the grounds on which this
debt can be avoided, stating that such debt may
not be discharged unless it would “impose an
undue hardship on the debtor.” In prior litigation, the bankruptcy court refused to discharge
this loan obligation for Hooker, finding he was
not acting in good faith because he failed to investigate an income contingent repayment option program for his loan. In this ruling, Judge
Wilson rejects the argument that this failure on
Hooker’s part requires a categorical rejection of
his plea for relief, noting that an individualized
inquiry is required of the facts of each case, and
that the bankruptcy judge had “made no findings as to the interplay of Hooker’s illnesses
and his failure to make payments. If Hooker’s
claims are true,” wrote Wilson, “and he made
regular payments when he could but the progression of his illnesses substantially interfered
in his ability to earn income and realistically
retire his indebtedness, the court sees nothing
in circuit precedent that should burden him
with his student loan debt until he dies.” The
case was remanded so that the bankruptcy
court could make factual findings on the truth
of Hooker’s claim. Wilson’s opinion sends a
rather strong signal to the bankruptcy court that
if Hooker’s allegations hold up, his student loan
debt should be discharged. A.S.L.
September 2008
AIDS Law and Policy Notes
Federal — On July 30, President Bush signed
into law a bill sharply increasing federal funding for AIDS prevention and treatment programs overseas that includes a provision repealing the obnoxious ban on HIV+
individuals entering the United States. It is interesting that this passed just weeks after the
demise of retired U.S. Senator Jesse Helms,
whose original insistence upon an HIV exclusionary policy in the late 1980s subsequently
led to enactment of the ban in the 1990s after it
appeared that the Department of Health and
Human Services would not take such action on
its own because of evidence that tourists and
immigrants to the U.S. were not fueling the epidemic here. One result of the policy was that international AIDS conferences ceased to be held
in the United States, since many delegates to
such conferences would be prohibited from attending unless they went through a laborious,
and sometimes unsuccessful, process of obtaining a waiver of the ban in order to enter the
U.S. for the limited time of the conference. The
ban has also effectively discouraged international LGBT organizations from holding events
in the United States. Perhaps that phenomenon
will come to an end with this repeal. Another
obnoxious result of the policy is that individuals
lawfully in the United States and otherwise eligible to apply for citizenship here could not do
so if they were HIV+, and their continued residence on a year to year basis was dependent on
securing continuing waivers to avoid deportation. ••• The legislative action ended the legislative ban, as such, however, the revision of
the law left in place the authority of the Department of Health and Human Services to list HIV
infection as an excludable condition based on
its own evaluation of the threat to public health,
so lobbying attention now shifts to HHS, where
most observers expected no positive action will
occur during the remainder of the Bush Administration.
Federal — The Centers for Disease Control
& Prevention announced that a new statistical
technique applied to previously collected data
suggested that the agency has been consistently understating the volume of new HIV
transmissions in the United States for many
years. The agency had been reporting that the
epidemic of new HIV infections in the U.S. had
been holding steady for years at about 40,000
annually. Under the new technique, however,
the annual estimate moved up to 56,300, an increase of about 40%. CDC claimed that this did
not indicate that the rate of new infections was
increasing, but rather that the plateau of new
infections had stabilized at a higher number
than previously reported. But the clear implication was that the number of people living with
HIV in the U.S. is probably significantly higher
than previously estimated, fueling again the ar-
Lesbian/Gay Law Notes
gument that while increased sources are being
channeled outside the U.S. to fight AIDS in the
developing world, not enough money is being
spent in the U.S. for prevention efforts and providing treatment assistance to the HIV-infected
in this country. These new statistical findings
were presented at the International AIDS Conference in Mexico City at the beginning of
August, and appeared in the Aug. 6 issue of the
Journal of the American Medical Association.
Federal — In correspondence with the
ACLU LGBT & AIDS Project, the director of
the Peace Corps, Ron Tschetter, indicated on
June 2 that his agency will no longer apply a
categorical disqualification of HIV+ individuals from participating in the agency’s programs.
Instead, the agency will make individualized
assessments about whether an person is up to
participating and can received needed care in
particular settings. Tschetter emphasized,
based on his past experience as a Peace Corps
volunteer, that “the living conditions faced by
Volunteers are far more extreme than those
faced by [foreign service officers]. The vast majority of Volunteers work in fairly isolated rural
areas where there is no medical treatment facility close by, so the possible accommodation of
assignment near a medical facility… might be
reasonable for an FSO stationed in the city but
might not be reasonable for a Volunteer.” He
concluded by stating that the agency would
make good-faith efforts to identify Peace Corps
countries where HIV+ individuals could be
reasonably accommodated. In follow-up correspondence, the agency’s general counsel emphasized that individualized assessments
rather than a categorical approach would govern the situation where a Volunteer on assignment is found to be HIV+. G.C. Tyler Posey
suggested that in most circumstances, somebody testing positive in the field would be
brought back to the U.S. for testing, evaluation
and treatment, but was non-committal about
how the newly-evolved policy would be communicated to agency staff, merely saying it
would be done in a “prudent and appropriate
manner.” We would suggest a written policy
statement disseminated to the entire staff... As a
long-time contracts professor, we say “get it in
writing....”
New York — Startling data was announced by
the New York City Health Department on
August 27: HIV is spreading in New York City
more than three times as fast as the overall national rate of transmission, according to figures
through 2006. A new formula for counting HIV
transmission cases developed by the federal
CDCP, applied to raw data from NYC, resulted
in the conclusion that 4,762 New Yorkers were
newly infected during 2006, 72 new infections
per 100,000 residents of the city. By contrast,
the national rate calculated by CDCP is 23 per
100,000. The data confirmed the charges of gay
AIDS activists that federal priorities on preven-
Lesbian/Gay Law Notes
tion are not properly directed, being focused
primarily overseas and having ideological limitations on domestic federal AIDS money that
makes it difficult to target prevention efforts on
the communities most affected, particularly the
gay male community.
In NYC, men accounted for 76 percent of
new infections, African-Americans accounted
September 2008
for 46 percent of new infections, Hispanics 32
percent, and sex between men was implicated
as the route for transmission in half the cases,
heterosexual sex accounting for 22 percent, IV
drug use 8 percent, with 18 percent not yet
classified. This makes it likely that in NYC,
more than half of the HIV transmission going on
involves men having sex with men, yet the main
187
focus of federal prevention dollars has been
aimed at heterosexuals and drug users. New
York Times, Aug. 28. In his speech at the Democratic National Convention on August 27,
former president Bill Clinton, referring to the
policy priorities of an Obama Administration,
pointedly noted that HIV prevention must be a
domestic priority as well as a foreign priority, a
point apparently lost on the Bush Administration and the McCain campaign. A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
Announcements
The Williams Institute and the International
Lesbian & Gay Law Association have jointly issued a call for papers for a conference to be held
in Los Angeles and West Hollywood on March
11–14, 2009, titled “The Global Arc of Justice:
Sexual Orientation Law Around the World.” Papers must be submitted by Saturday, November
15, 2008 at 5 pm Pacific time. Those seeking to
make a presentation at the conference should
submit abstracts describing their proposed
presentation by the same date. Submission can
be sent via email to Randy Bunnao at the Williams Institute: [email protected]. For information about the conference, check
http://www.ilglaw.org.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Agudo, Sarah E., Irregular Passion: The Unconstitutionality and Inefficacy of Sex Offender
Residency Laws, 102 Northwestern Univ. L.
Rev. 307 (Winter 2008).
Anderson, Kelly A., Certainty in an Uncertain World: The Ethics of Drafting Surrogacy
Contracts, 21 Georgetown J. Leg. Ethics 615
(Summer 2008).
Anstead, Justice Harry Lee, New Jersey Abolishes the Death Penalty Is Legal Marriage
Next?, 48 Santa Clara L. Rev. 749 (2008)
(“This article laments the lack of response by
state legislatures and state courts to the de facto
change in the composition of the typical American family.”)
Apel, Robert, and Catherine Kaukinen, On
the Relationship Between Family Structure and
Antisocial Behavior: Parental Cohabitation
and Blended Households, 46 Criminology 35
(February 2008).
Augustine, Zachary P., Speech Shouldn’t be
“Free” at Funerals: An Analysis of the Respect
for America’s Fallen Heroes Act, 28 N. Ill. U. L.
Rev. 375 (Spring 2008).
Barnard, Jaco, Totalitarianism, (Same-Sex)
Marriage and Democratic Politics in PostApartheid South Africa, 23 S. African J. Hum.
Rts. 500 (2007) (Special Issue on Sexuality
and the Law).
Bergstedt, A. Spencer, Estate Planing and
the Transgender Client, 30 W. New Eng. L. Rev.
675 (2008) (symposium article).
Bilchitz, David, and Melanie Judge, For
Whom Does the Bell Toll? The Challenges and
Possibilities of the Civil Union Act for Family
Law in South Africa, 23 S. African J. Hum. Rts.
466 (2007) (Special Issue on Sexuality and the
Law).
Bodensteiner, Ivan E., The Implications of
Psychological Research Related to Unconscious
Discrimination and Implicit Bias in Proving Intentional Discrimination, 73 Mo. L. Rev. 83
(Winter 2008).
Bonthuys, Elsje, Race and Gender in the
Civil Union Act, 23 S. African J. Hum. Rts. 526
(2007) (Special Issue on Sexuality and the
Law).
Bouchard, Aimee, and Kim Zadworny, Growing Old Together: Estate Planning Concerns for
the Aging Same-Sex Couple, 30 W. New Eng. L.
Rev. 713 (2008) (symposium).
Bowen, Deirdre M., Differential Power in Intact Same-Sex Families Based on Legal and
Cultural Understandings of Parentage, 15 Wm.
& Mary J. Women & L. 1 (2009).
Brower, Todd, Social Cognition ‘at Work:’
Schema Theory and Lesbian and Gay identity
in Title VII (Aug. 10, 2008), SSRN #1213262.
Burda, Joan M., Gay, Lesbian, and Transgender clients: A Lawyer’s Guide (ABA General
Practice, Solo & Small Firm Division, 2008).
Cain, Patricia A., Taxing Families Fairly, 48
Santa Clara L. Rev. 805 (2008).
Calvert, Clay, The Two-Step Evidentiary and
Causation Quandary for Medium-Specific
Laws Targeting Sexual and Violent Content:
First Proving Harm and Injury to Silence
Speech, then Proving Redress and Rehabilitation Through Censorship, 60 Fed. Comm. L. J.
157 (March 2008).
Carlson, William Jay, Rhetoric Versus Reality: An Analysis of Utah’s Marital Restriction on
Adoption and Foster Placement, 9 J. L. & Fam.
Studies 373 (2007).
Cleary, Erin, New Jersey Domestic Partnership Act in the Aftermath of Lewis v. Harris:
Should New Jersey Expand the Act to Include All
Unmarried Cohabitants?, 60 Rutgers L. Rev.
519 (Winter 2008).
Cohen, Meredith, No Child Left Behind
Bars: The Need to Combat Cruel and Unusual
Punishment of State Statutory Rape Laws, 16 J.
L. & Pol’y 717 (2008).
Colby, Thomas B., The Federal Marriage
Amendment and the False Promise of Originalism, 108 Colum. L. Rev. 529 (April 2008) (uses
the example of the Federal Marriage Amendment to expose the false premise of the theory of
interpretation of constitutional provisions according to the intention of the framers; since
there was considerable controversy about what
the impact of the FMA would have been on domestic partnerships and civil unions, even
among its congressional supporters, which was
essentially unresolved at the time Congress
voted on the proposed amendment, how could a
judge later construe it according to “original intent”? How much more difficult would it be to
pinpoint a specific “original intent” for constitutional provisions that have textual ambiguity
and are one or two centuries old?)
Correales, Robert I., Don’t Ask, Don’t Tell: A
Dying Policy on the Precipice, 44 Cal. West. L.
Rev. 413 (Spring 2008).
Crozier, Patience, Nuts and Bolts: Estate
Planning and Family Law Considerations for
Same-Sex Families, 30 W. New Eng. L. Rev.
751 (2008) (symposium).
Daar, Judith F., Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, 23
Berkeley J. Gender L. & Just. 18 (2008).
Debele, Gary A., Custody and Parenting by
Persons Other Than Biological Parents: When
Non-Traditional Family Law Collides With the
Constitutional, 83 N.D. L. Rev. 1227 (2007).
Dempsey, Brian, Scottish Jurists on Sodomy,
2008 Juridical Rev. (UK), No. 2, at 73.
De Vos, Pierre, The ‘Inevitability’ of SameSex Marriage in South Africa’s Post-Apartheid
State, 23 S. African J. Hum. Rts. 432 (2007)
(Special Issue on Sexuality and the Law).
De Vos, Pierre, and Jaco Barnard, Same-Sex
marriage, Civil Unions and Domestic Partnerships in South Africa: Critical Reflections on an
Ongoing Saga, 124 S. African L.J. 795 (2007).
Dowd, Nancy E., Multiple Parents/Multiple
Fathers, 9 J. L. & Fam. Studies 231 (2007).
Dripps, Donald, After Rape Law: Will the Turn
to Consent Normalize the Prosecution of Sexual
Assault?, 41 Akron L. Rev. 957 (2008).
188
Dubois, Matthew R., Growing Old with a
Lesbian or Gay Partner, 25 Solo (ABA General
Practice Section Magazine) No. 5, at 20
(July/August 2008).
Duncan, William C., Does the Family Have a
Future?, 83 N.D. L. Rev. 1273 (2007).
Eichenlaub, Christian, “Minnesota Nice”: A
Comparative Analysis of Minnesota’s Treatment
of Adoption by Gay Couples, 5 U. St. Thomas
L.J. 312 (Winter 2008).
Einhorn, Talia, Same-Sex Family Unions in
Israeli Law, 4 Utrecht L. Rev. 222 (June 2008).
Eskridge, William N., Jr., How Government
Unintentionally Influences Culture (The Case of
Same-Sex Marriage), 102 Northwestern Univ.
L. Rev. 495 (Winter 1008) (Part of a special
section devoted to 2006 Federalist Society National Lawyers Conventions Panels. Prof.
Eskridge’s article is one of seven grouped under the title “The Role of Government in Defining Our Culture.” Several of the other articles
touch on issues relevant to the concerns raised
by Eskridge).
Fetner, Tina, and Kristin Kush, Gay-Straight
Alliances In High Schools: Social Predictors of
Early Adoption, 40 Youth & Soc’y 114
(9/1/2008) (2008 WLNR 16226534).
Fitschen, Steven W., Marriage Matters: A
Case for a Get-The-Job-Done-Right Federal
Marriage Amendment, 83 N.D. L. Rev. 1301
(2007).
Ghoshray, Saby, Expansion of Family Rights
While Searching for the Meaning of Life, Individuality and Self, 48 Santa Clara L. Rev. 959
(2008).
Gilden, Andrew, Toward a More Transformative Approach: The Limits of Transgender formal Equality, 23 Berkeley J. Gender L. & Justice 83 (2008).
Glazer, Elizabeth M., When Obscenity Discriminates, 102 Nw. U. L. Rev. 1379 (Summer
2008) (how the 35–year-old Miller standard for
determining whether material is obscene and
thus not sheltered by the First Amendment from
prosecution is applied in a way that discriminates based on sexual orientation).
Goodmark, Leigh, When is a Battered
Woman Not a Battered Woman? When She
Fights Back, 20 Yale J. L. & Feminism 75
(2008) (includes a section on lesbians).
Graham, Kathy T., Same-Sex Couples: Their
Rights as Parents, and Their Children’s Rights
as Children, 48 Santa Clara L. Rev. 999 (2008).
Hatami, Sheila, and David Zwerin, Educating the Masses: Expanding Title VII to Include
Sexual Orientation in the Education Arena, 25
Hofstra Lab. & Emp. L.J. 311 (Fall 2007).
Hunter, Ernst, What’s Good for the Gays is
Good for the Gander: Making Homeless Youth
Housing Safer for Lesbian, Gay, Bisexual, and
Transgender Youth, 46 Fam. Ct. Rev. 543 (July
2008).
Infanti, Anthony C., Deconstructing the Duty
to the Tax System: Unfettering Zealous Advo-
September 2008
cacy on Behalf of Lesbian and Gay Taxpayers,
61 Tax Law. 407 (2008).
Jacob, Bradley P., Griswold and the Defense
of Traditional Marriage, 83 N.D. L. Rev. 1199
(2007).
Jacobs, Melanie B., Why Just Two? Disaggregating Traditional Parental rights and Responsibilities to Recognzie Multiple Parents, 9 J.
L. & Fam. Studies 309 (2007).
Jahanian, Arash, True Endorsement: A Critical Race Approach to Bans on Same-Sex Marriage, 9 Georgetown J. Gender & L. 237 (2008).
Jenkins, Peter J., Morality and Public School
Speech: Balancing the rights of Students, Parents, and Communities, 2008 Brigham Young
U. L. Rev. 593.
Karabin, Sherry, Conflicting Gay Marriage
Laws Cause Headaches for Companies, from
www.inhousecounsel.com, July 30, 2008.
Knauer, Nancy J., Same-Sex Marriage and
Federalism, 17 Temple Pol. & Civ. Rts. L. Rev.
No. 2 (2008).
Lance, Larry M., Social Inequality on the
College Campus: A Consideration of Homosexuality, 9/1/08 College Student J. 789, 2008
WLNR 15478175.
Lavarias, Jerico, A Reexamination of the
Tinker Standard: Freedom of Speech in Public
Schools, 35 Hastings Const. L. Q. 575 (Spring
2008) (particular focus on pro-gay and anti-gay
speech in high schools).
Leckey, Robert, Private Law as Constitutional Context for Same-Sex Marriage, 2 J.
Comparative L. 172 (2007).
Lee, Alvin, Trans Models in Prison: The
Medicalization of Gender Identity and the
Eighth Amendment Right to Sex Reassignment
Surgery, 31 Harv. J. L. & Gender 447 (Summer
2008) (student article by Law Notes contributing writer).
Levi, Jennifer L., Foreward, 30 W. New Eng.
L. Rev. 671 (2008) (Symposium: Issues in Estate Planning for Same-Sex and Transgender
Couples).
Lustig, Dr. Stuart L., Symptoms of Trauma
Among Political Asylum Applicants: Don’t Be
Fooled, 31 Hastings Int’l & Comp. L. Rev. 725
(Summer 2008) (post-traumatic stress disorder
suffered by asylum applicants due to their experiences in their home country may interfere
with accurate credibility determinations by
U.S. immigration authorities).
Maragia, Bosire, Gender Struggles in Homosocial Settings: Reconstructing Gender and Social Equity for Sustainability in Post-Colonial
Societies, 16 Amer. Univ. J. Gender, Soc. Pol’y &
L. 335 (2008).
McClain, Linda C., Unleashing or Harnessing “Armies of Compassion”?: Reflections on the
Faith-Based Initiative, 39 Loyola Univ. Chi. L.
J. 361 (Winter 2008).
Meek-Prieto, Caroline, Just Age Playing
Around? How Second Life Aids and Abets Child
Lesbian/Gay Law Notes
Pornography, 9 N.C.J.L. & Rech. 88 (June 1,
2008).
Mercer, Julie, The Marriage Myth: Why
Mixed-Status Marriages Need an Immigration
Remedy, 38 Golden Gate Univ. L. Rev. 293
(Winter 2008).
Mittelstaedt, Emma, Safeguarding the
Rights of Sexual Minorities: The Incremental
and Legal Approaches to Enforcing International Human Rights Obligations, 9 Chi. J. Int’l
L. 353 (Summer 2008).
Monopoli, Paula A., Nonmarital Children
and Post-Death Parentage: A Different Path for
Inheritance Law?, 48 Santa Clara L. Rev. 857
(2008).
Morse, Bailey Dirmann, Comparing Civilian
Treatment of Transsexual Marriage: Why Louisiana Should Implement the French Approach,
54 Loyola L. Rev. 235 (Spring 2008).
Musalo, Karen, and Marcelle Rice, Center
for Gender and Refugee Studies: The Implementation of the One-Year Bar to Asylum, 31 Hastings Int’l & Comp. L. Rev. 693 (Summer 2008)
(argues that inflexible application of the oneyear time limit to file asylum claims has resulted in returning bona fide refugees to countries where they face imminent threats to life
and freedom).
Nava, Michael, The Servant of All: Humility,
Humanity, and Judicial Diversity, 38 Golden
Gate U. L. Rev. 175 (Winter 2008) (discusses
sexual orientation together with other diversity
factors in judicial selection and service; the
author is an openly-gay novelist and court attorney for a California Supreme Court justice).
O’Connell, Rory, The Role of Dignity in
Equality Law: Lessons from Canada and South
Africa, 6 Int’l J. Const. L. 267 (April 2008).
Orr, Asaf, Harassment and Hostility: Determining the Proper Standard of Liability for Discriminatory Peer-to-Peer Harassment of Youth
in Schools, 29 Women’s Rts. L. Rep. 117 (Winter/Spring 2008/2008).
Pepper, Trent L, The “Mystery of Life” in the
Lower Courts: The Influence of the Mystery Passage on American Jurisprudence, 51 Howard L.
J. 335 (Winter 2008).
Polikoff, Nancy D., Valuing All Families: An
Introduction to the 2008 Santa Clara Law Review Symposium, 48 Santa Clara L. Rev. 741
(2008).
Preston, Cheryl B., The Internet and Pornography: What If Congress and the Supreme Court
Had Been Comprised of Technies in
1995–1997?, 2008 Mich. St. L. Rev. 61.
Reeves, Arin N., Silence in the Workplace, 31
Chicago Lawyer No. 8, at p. 32 (Aug. 2008)
(description of the closeting phenomenon in
law firm practice).
Richards, Robert D., and Clay Calvert, Untangling Child Pornography From the Adult
Entertainment Industry: An Inside Look at the
Industry’s Efforts to Protect Minors, 44 Cal.
West. L. Rev. 511 (Spring 2008).
Lesbian/Gay Law Notes
Rickey, Anthony, Loving Couples, Split Interests: Tax Planning in the Fight to Recognize
Same-Sex Marriage, 23 Berkeley J. Gender, L.
& Justice 145 (2008).
Robinson, Russell K., Uncovering Covering,
101 Northwestern U. L. Rev. 1809 (Fall 2007).
Robson, Ruthann, Sexual Democracy, 23 S.
African J. Hum. Rts. 409 (2007) (Special Issue
on Sexuality and the Law).
Roth, Renee, How Far We Have Come on Gay
Unions, N.Y.L.J., Aug. 4, 2008, p. 2 (Speech by
New York County Surrogate Court Judge Renee
Roth at annual Gay Pride Event held at the New
York Supreme Court building in Manhattan).
Russo, Charles J., “The Child is Not the Mere
Creature of the State:” Controversy Over Teaching About Same-Sex Marriage in Public
Schools, 232 Ed. Law Rep. 1 (July 10, 2008).
Sacharoff, Laurent, Listener Interests in Compelled Speech Cases, 44 Cal. West. L. Rev. 329
(Spring 2008).
Schuman, Ben, Gods & Gays: Analyzing the
Same-Sex Marriage Debate From a Religious
Perspective, 96 Geo. L.J. 2103 (Aug. 2008).
Shaman, Jeffrey M., Equality and Liberty in
the Gold Age of State Constitutional Law (Oxford Univesrity Press, 2008).
Smith, Miriam, Book Review, Courts, Liberalism, and Rights: Gay Law and Politics in the
United States and Canada by Jason Pierceson,
13 Review of Constitutional Studies 131
(2007).
Sobel, Stacey L., The Mythology of a Human
Rights Leader: How the United States Has
Failed Sexual Minorities at Home and Abroad,
21 Harv. Hum. Rts. J. 197 (Summer 2008).
Spitko, E. Gary, Open Adoption, Inheritance,
and the “Uncleing” Principle, 48 Santa Clara L.
Rev. 765 (2008).
Szeibert-Erdos, Orsolya, Same-Sex Partners
in Hungary Cohabitation and Registered Partnership, 4 Utrecht L. Rev. 212 (June 2008).
Tannenwald, Alan K., An Ironic Twist in Employment Law: The Conservative Case for
Amending Title VII to Ban Discrimination on
the Basis of Sexual Orientation, 9 Georgetown J.
Gender & L. 269 (2008).
Terry, Keeva, Separate and Still Unequal?
Taxing California Registered Domestic Partners, 39 U. Toledo L. Rev. 633 (Spring 2008).
Thomas, David A., Tips for Successfully
Regulating Sexually Oriented Businesses, 22
Probate & Property 43 (Jan/Feb. 2008).
Van Dalen, Matthew D., Rumsfeld v. FAIR, A
Free Speech Setback or Strategic Military Victory?, 31 J. Leg. Prof. 75 (2007).
Walters, Cecily, Circuits Split Over Military’s
‘Don’t Ask, Don’t Tell’ Policy, 44–Aug Trial 65
(2008).
Wardle, Lynn D., The Attack on Marriage as
the Union of a Man and a Woman, 83 N.D. L.
Rev. 1365 (2007).
West, Amanda, The Georgia Legislature
Strikes With a Vengeance! Sex Offender Resi-
September 2008
dency Restrictions & the Deterioration of the Ex
Post Facto Clause, 57 Catholic Univ. L. Rev.
239 (Fall 2007).
Wilkins, Richard G., and John Nielsen, The
Question Raised by Lawrence: Marriage, the
Supreme Court and a Written Constitution, 83
N.D. L. Rev. 1393 (2007).
Zafran, Ruth, More Than One Mother: Determining Maternity for the Biological Child of a
Female Same-Sex Couple The Israeli View, 9
Georgetown J. Gender & L. 115 (2008).
Zanghellini, Aleardo, To What Extent Does
the ICCPR Support Procreation and Parenting
by Lesbians and Gay Men?, 9 Melbourne J. Int’l
L. 125 (May 2008).
Specially Noted:
Vol. 48, No. 4, of the Santa Clara Law Review
(2008), including symposium articles around
the theme of “Valuing All Families”, with an introduction by Nancy D. Polikoff. We had previously noted some of the articles in earlier issues
of Law Notes when they showed up on our programmed Westlaw search, but we will list all the
relevant articles above, despite some duplication.
Vol. 30 of the Western New England Law Review features a symposium titled “Issues in Estate Planning for Same-Sex and Transgender
Couples.” Individual articles are noted above.
Vol. 23, Part 3, of the South African Journal
on Human Rights (2007) is devoted to a symposium on Sexuality and the Law, with articles by
Ruthann Robson, Pierre de Vos, David Blichitz
& Melanie Judge, Jaco Barnard, and Elsje
Bonthuys. Individual articles are noted above.
Vol. 56, No. 3, of the Drake Law Review
(Spring 2008), includes a Symposium sponsored by the American Judicature Society on
“The Intersection of Personal Convictions and
Federal Judicial Selection.” Many of the articles focus on the role of personal religious and
political beliefs in judging.
Vol. 83, No. 4, of the North Dakota Law Review consists of a symposium of articles by
right-wing and religious ideologues opposed to
same-sex marriage. Some alumni of the school
reacted angrily upon receiving the issue, criticizing the Review for allowing itself to be apparently co-opted by the religious right wing on
a controversial issue. The editors responded
that they tried to put together a symposium on
same-sex marriage, inviting a wide variety of
scholars with differing viewpoints, but only the
anti-same-sex marriage group came through
with articles. The Dean posted a letter on the
school’s website on July 30, asserting that the
views expressed in the Review did not speak for
the law school, and that the final selection of the
articles was the responsibility of the prior year’s
editorial board. The articles are noted above.
They consist of writing by “all the usual suspects” from the anti-marriage group, sounding
their familiar themes at length.
189
In his new book, How Judges Think (Harvard
University Press), U.S. Court of Appeals Judge
Richard Posner, a founder of the Law & Economics movement who has been associated
with the University of Chicago Law School as
full-time or adjunct professor throughout his
career as a lawyer and judge, maintains that in
non-routine cases involving the need to decide
unsettled doctrinal issues, judges take politics
into account and are “law makers.” This may
seem uncontroversial to anybody who closely
observes the decision-making of our leading
appellate courts with an eye to who appointed
the judges, what “litmus tests” were likely used
by the appointing authority, and what the
judges did in their professional careers prior to
their appointments, but it is significant coming
from Posner, a Reagan appointee who is generally considered a political conservative (although his published opinions and books suggest he is perhaps best characterized as a
libertarian conservative who embraces a particular economic perspective in approach legal
questions that may be susceptible to analysis
along the lines of economic theory), inasmuch
as the mantra about judicial appointments
coming from self-described conservatives is
that they want to point judges who eschew the
role of law-making and see themselves solely as
applying settled law to facts or as neutral “umpires,” to use the term bandied about by Chief
Justice John Roberts at his confirmation hearing.
AIDS & RELATED LEGAL ISSUES:
Anderson, Jill C., Just Semantics: The Lost
Readings of the Americans with Disabilities Act,
117 Yale L. J. 992 (April 2008).
Baker, David, and Sarah Godwin, All
Aboard!: The Supreme Court of Canada Confirms That Canadians With Disabilities Have
Substantive Equality Rights, 71 Saskatchewan
L. Rev. 39 (2008).
Larsen, Kari, Deliberately Indifferent: Government Response to HIV in U.S. Prisons, 24 J.
Contemp. Health L. & Pol’y 251 (Spring 2008).
Turnbull, H. Rutherford, III, Judicial Reveries: The Supreme Court Encounters Disability,
17–SPG Kan. J. L. & Pub. Pol’y 509 (Spring
2008).
EDITOR’S NOTE:
AllpointsofviewexpressedinLesbian/GayLaw
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/GayLawNotesiswelcomeandwillbepublished subject to editing. Please address
correspondencetotheEditororsendviae-mail.