RHODE ISLAND SUPREME COURT HOLDS FAMILY COURT CANNOT

January 2008
RHODE ISLAND SUPREME COURT HOLDS FAMILY COURT CANNOT
DIVORCE SAME-SEX COUPLE MARRIED IN MASSACHUSETTS
It seems safe to assume that the editors of the
1961 Webster’s Third New International Dictionary probably did not realize at the time of
publication that one day their efforts would be
elevated to the status of controlling law with regards to whether a married couple like Margaret Chambers and Sandra Ormiston would have
any recourse for dissolving their relationship.
Yet, that was the effective holding of a split
Rhode Island Supreme Court in Chambers v.
Ormiston, 2007 WL 4276781 (Dec. 7, 2007),
in answer to a certified question from the Rhode
Island Family Court as to whether that court had
jurisdiction to entertain Chambers’s divorce
petition.
Relying almost entirely upon dictionaries
contemporary with enactment of the state’s
family court statute, the court voted 3–2 over a
cogent (and largely unanswered) dissent, that
the 1961 jurisdictional statute gave the Family
Court authority only over a “marriage” as then
understood — i.e., between a man and a woman
— thus closing the door to Chambers and Ormiston, although their marriage is undisputedly
valid in Massachusetts, where it was celebrated. The ruling may not be the last word,
however, as not only did all five justices invite
legislative action on the issue, but the disappointed couple immediately re-filed the divorce petition in Rhode Island’s court of general jurisdiction, the Superior Court.
Chambers and Ormiston, both Rhode Island
residents, traveled to Massachusetts and were
married there in May 2004. They returned to
Rhode Island and lived together until October
2006, when Chambers filed a petition for divorce in Rhode Island Family Court. Neither
Chambers nor Ormiston contested the validity
of their marriage under Massachusetts law.
(The Massachusetts courts determined in 2006
that, because Rhode Island did not affirmatively prohibit same-sex marriage, couples
from Rhode Island were entitled to be married
in Massachusetts. See Law Notes for October
2006.) The Family Court certified to the Rhode
Island Supreme Court the question of its jurisdiction, which, after some back-and-forth between the courts, the Supreme Court agreed to
LESBIAN/GAY LAW NOTES
decide. Specifically, the court agreed to answer
the question, “May the Family Court properly
recognize, for the purpose of entertaining a divorce petition, the marriage of two persons of
the same sex who were purportedly married in
another state?”
The Rhode Island Family Court is a court of
limited jurisdiction created by statute in 1961.
The statute creating the Family Court states that
it is created to, inter alia, “hear and determine
all petitions for divorce from the bond of marriage.” R.I. Gen. L. 1956 sec. 8–10–3(a). Writing for the three-justice majority, Justice William P. Robinson III determined that the
certified question therefore amounted to the
question of “what is the meaning of the word
‘marriage’” in the Family Court statute, or,
“stated more precisely” — said the Court in a
key interpretive move — “what did the word
mean at the time that the members of the General Assembly enacted the statute?”
Justice Robinson went to some pains to stress
the “imperative” of this point (for which he
cited scant authority), and for evident reason:
as Justice Paul A. Suttell, writing in dissent for
himself and Justice Maureen McKenna Goldberg, pointed out, there was no dispute that
Chambers and Ormiston had a valid marriage
under Massachusetts law, and thus the plain
meaning of the governing statute appeared to
give the Family Court jurisdiction.
To ascertain the meaning of “marriage” in
1961, the Justice Robinson turned to contemporary dictionaries, and determined that “there
is absolutely no reason to believe that, when the
act creating the Family Court became law in
1961, the legislators understood the word marriage to refer to any state other than ‘the state of
being united to a person of the opposite sex.’”
This quoted definition was drawn from the
aforementioned 1961 Webster’s dictionary. And
with that, the court deemed its analysis complete; based on this (and other contemporary
dictionaries), it perceived “absolutely no ambiguity” that the “plain meaning” of the statute
— at least, the plain meaning in 1961 — did
not confer jurisdiction on the Family Court to
entertain the petition. (Justice Robinson did go
January 2008
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NYC 10013, 212–431–2156, fax 431–1804; e-mail: [email protected] or
[email protected]
Contributing Writers: Chris Benecke, Cardozo Law School ‘08; David Buchanan, Esq., Australia; Glenn Edwards, Esq., NYC; Alan J. Jacobs, Esq., NYC; Bryan
Johnson, NYLS ‘08; Sharon McGowan, Esq., NYC; Tara Scavo, Esq., NYC; Ruth Uselton, NYLS ‘08; Eric Wursthorn, NYLS ‘08.
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/pages/3876.asp; http://www.qrd.org/qrd/www/usa/legal/lgln
©2008 by the LeGaL Foundation of the LGBT Law Association of Greater New York
ISSN 8755–9021
on, applying the statutory construction canon of
noscitur a sociis, to find what he deemed to be
confirmation of his reading in the fact that other
Rhode Island statutes dealing with marriage
speak in gendered terms — e.g., that the “bride
and groom” shall swear to the truth of the facts
stated in the application for a marriage license.)
On this point — that the legislature in 1961
did not have in mind same-sex marriages —
there was full agreement from the dissenting
justices. Such foresight would have been “quite
extraordinary indeed,” said Justice Suttell,
adding (somewhat hyperbolically, perhaps)
that same-sex marriages were a concept “as
foreign to the General Assembly in 1961 as
would have been the advent of the Internet to
the drafters of the ‘commerce clause’ in the
United States Constitution.” To the dissent,
however, this lack of contemplation led to the
conclusion that one must examine the intent
and purpose of the legislation in order to determine its scope. That purpose, said the dissent,
was “to give all Rhode Island citizens a means
of determining their marital status and dissolving their marriage.”
Justice Suttell based this conclusion primarily on two points. First, he noted that comity —
the recognition by a state of another state’s marriages, even where such marriages would not be
valid in the forum — was a doctrine of long
standing of which the legislature would have
been aware in 1961. Thus, even if the legislature did not contemplate same-sex marriages
specifically, it must have contemplated that
what did or did not constitute a “marriage”
would, in some instances, be determined by
reference to another state’s law.
Second, and in further recognition of this
point, the legislature expressly gave the Family
Court jurisdiction over divorces even where the
marriages were void or voidable under Rhode
Island law — e.g., incestuous or bigamous marriages. Wrote Justice Suttell, “It is evident,
therefore, that the General Assembly has provided a means of relief in the Family Court to
parties who have entered a marriage that could
neither be performed in Rhode Island nor
granted legal effect in the state.” Finally, the
dissent stressed the untenable position that
Chambers and Ormiston would be placed in —
a “virtual legal limbo” with no way to alter their
marital status absent moving to Massachusetts
to establish residence there. Nothing in the
statute, said the dissent, required such a harsh
result and one so clearly at odds with the “duty
which the courts owe to the public to declare
the situation of the parties.”
2
Justice Robinson’s majority opinion is actually quite striking for the extent to which it is
completely silent in addressing the dissent’s
arguments. There is no examination of the purpose behind the statute whatsoever. Instead,
Justice Robinson ended his majority opinion
with the familiar refrain that it is the legislature,
not the courts, that must decide matters of policy — which is undoubtedly true, but
question-begging, the question of course being
whether the legislature had indeed made a policy determination in 1961 that the Family Court
would have jurisdiction to grant divorce in
every type of marriage — void, voidable, biga-
January 2008
mous, incestuous — except same-sex ones. The
court made no attempt seriously to wrestle with
this question and simply sidestepped it by resting on a highly formalistic variant of the “definitional” argument that is by now familiar to
any student of the history of same-sex marriage.
While professing faithfulness to Learned
Hand’s admonition for judges “not to make a
fortress out of the dictionary,” the majority
clearly failed to adhere to the remainder of
Judge Hand’s statement: “to remember that
statutes always have some purpose or object to
accomplish, whose sympathetic and imaginative discovery is the surest guide to their mean-
Lesbian/Gay Law Notes
ing.” The one thing on which all the justices
agreed was that the court’s opinion would put
the ball back squarely in the legislature’s court
to remedy what even the majority seemed to
agree was an untenable situation.
The disappointed couple, however, was not
content to wait for the legislative wheels to
grind, as Margaret Chambers immediately refiled her divorce petition in Rhode Island’s Superior Court — the court of general jurisdiction
which had jurisdiction over divorces prior to
the 1961 creation of the Family Court. It appears that the Supreme Court may yet have to
grapple with the issues of same-sex recognition, next time perhaps without a dictionary in
which to take refuge. Glenn C. Edwards
LESBIAN/GAY LEGAL NEWS
Federal Court Blocks Implementation of Oregon
Partnership Law
On December 28, U.S. District Judge Michael
W. Mosman issued an order preventing Oregon’s newly-enacted Domestic Partnership Act
from going into effect as scheduled on January
1. Ruling on a demand for temporary injunctive
relief in Lemons v. Bradbury, CV-07-1782-MO,
a civil action brought by the Alliance Defense
Fund (ADF) on behalf of individuals who claim
to have signed petitions seeking a referendum
on repeal of the law, Mosman found that a full
hearing on the merits is required to determine
whether state officials improperly refused to
place the proposed referendum on the ballot for
2008. Under Oregon law, if a referendum to repeal a new statute is placed on the ballot, the
statute does not go into effect until the referendum vote.
HB 2007 was passed last spring. It is actually a civil union law masquerading as a domestic partnership measure. The statute substantively follows the course of states like Vermont,
New Jersey, Connecticut and New Hampshire
in attempting to provide same-sex couples with
virtually all the state law rights enjoyed by married different-sex couples, but legislators decided to use the less politically-charged term of
domestic partnership rather than civil union,
following the lead of California (whose law was
initially enacted as a limited measure providing
a handful of enumerated rights, then repeatedly
amended to the point of providing virtually all
the rights available to married couples under
state law).
Complaining that this enactment violated the
preferences of a majority of Oregonians, who
have banned same-sex marriage in their constitution, opponents of the law organized a petition
drive and secured more than the number of signatures required to place a repeal measure on
the ballot. However, state officials determined
in their signature verification process that the
measure fell short by 116 valid signatures. The
determination was made using a sampling
method, then projecting the percentage disqualified on the total number of signatures submitted. Many of the disqualifications, charge
the plaintiffs in this lawsuit, were based on subjective judgments comparing signatures on petitions to those on voter registration records.
ADF argued to Judge Mosman that 9th Circuit precedent (Idaho Coalition for Bears v. Cenarrussa, 342 F.3d 1073 (9th Cir. 2003) and
cases following it) equates the act of signing
such a petition with voting for purposes of the
constitutional right to vote and to equal protection of the law, and that the signature verification process used by Oregon was violating voter
rights by disqualifying valid signatures with no
possibility for voters to appeal. After hearing
oral argument, Mosman determined that a full
hearing was needed to determine the validity of
the state’s procedures in light of 9th Circuit
precedent, and issued his order staying implementation of the statute until such a hearing
can be held on February 1, 2008. Mosman did
indicate his preference to dispose of the matter
relatively quickly, rather than leave the status
of the statute in limbo, according to reports by
Oregon media.
An interesting side-note: Judge Mosman’s
appointment a few years ago by George W. Bush
evoked protest from gay rights groups in Oregon, based on his reputed role as a Supreme
Court law clerk in 1986 in persuading Justice
Lewis F. Powell to change his initial vote in
Bowers v. Hardwick. According to stories circulating at the time, after Powell voted in conference to find the Georgia sodomy law unconstitutional, contrary to the course urged by
Mosman in his memo to the justice on the case,
this conservative clerk quickly wrote another
memorandum to the justice urging him to
change his vote. Powell also experienced inperson lobbying to change his vote by Chief
Justice Warren Burger (whose concurring opinion in the case has disgusted two generations of
law students). Powell did change his vote, re-
sulting in the constitutional challenge to the
sodomy law being rejected. Powell later expressed regret about his vote publicly, and in
2003 the Supreme Court overruled the decision. During the confirmation process, Mosman
claimed that his views had “evolved” since
1986. A.S.L.
3rd Circuit Orders New BIA Hearing for Gay
Egyptian
A unanimous panel of the U.S. 3rd Circuit Court
of Appeals ruled on December 20 in Doe v. Attorney General, 2007 WL 4455431 (not selected for publication in F.3d), that a gay Egyptian man should receive a further hearing from
the Board of Immigration Appeals, which had
rejected his claim that he met the standard for
remaining in the United States under the Immigration and Nationality Act and the Convention
Against Torture.
Writing for the court, Circuit Judge Dolores
Sloviter rejected the petitioner’s argument that
the court should reverse the BIA and grant his
petition to stay in the U.S. Instead, said Sloviter,
the case should go back to the BIA for reconsideration of uncontested evidence that it did not
mention in its earlier opinion.
The John Doe petitioner is a native and citizen of Egypt who left that country in 1989 after
suffering two beatings because he was gay, one
at the hands of his high school gym instructor
and the other by a police officer “who saw Doe
holding hands with, kissing and hugging his
boyfriend” in a public park. Doe moved to
Qatar, but claims he suffered additional beatings and threats there after “a former Egyptian
classmate began to spread rumors that he was
gay.” He briefly visited Egypt a few times to see
family members, but claims he suffered harassment on those occasions as well, and that his
family wrote to him after he came to the United
States to warn him that the police were looking
for him.
Lesbian/Gay Law Notes
Doe came to the U.S. on a tourist visa in
2001, overstayed his visa, and applied for asylum, withholding of removal, and protection
under the Convention Against Torture in 2003.
He had a hearing before an Immigration Judge
in 2004. The judge rejected his asylum petition
because it was filed more than a year after his
arrival in the United States. The judge also
questioned whether he was really gay, found the
incidents he described insufficient to constitute harassment, and, despite hearing uncontested expert testimony about the desperate
situation facing gay men in Egypt, concluded
that Doe had failed to prove he was likely to suffer persecution or torture if deported back to
that country.
The BIA rejected the judge’s ruling on Doe’s
sexual orientation, finding that “there is
enough evidence in the record to establish” that
he is gay. However, the Board also held that the
“isolated incidents” of harassment in Egypt did
not amount to persecution. Although the Board
claimed that it had reviewed the entire record,
its decision did not make any findings based on
the expert testimony, which had included evidence that gay men are tortured in Egyptian
prisons and that there is a “crackdown” by the
government against gay men, as evidenced by
the famous Queen Boat Trial and other incidents. The Board denied relief to Doe, who appealed to the federal court.
The Justice Department attorneys representing the government on appeal evidently realized that the Board’s decision was indefensible,
since the government filed a motion asking the
court to send the case back to the BIA “so that
the BIA may address Doe’s claim that the conditions for homosexual men in Egypt have deteriorated since Doe’s departure from that country,” wrote Judge Sloviter. Doe opposed this
motion, arguing that the uncontested evidence
would justify the court in reversing the Board
and awarding him the right to stay in the United
States as a refugee. The court abstained from
ruling on the motion before hearing argument
from the parties, which took place on December
10.
The court acted quickly, issuing its opinion
only ten days later. Ultimately, the court granted
the government’s motion, vacating the BIA’s
decision and remanding for reconsideration.
“It is uncontested that the record contains evidence of deteriorating conditions for homosexuals in Egypt,” wrote Judge Sloviter. “In its
decision affirming the IJ’s removal order, the
BIA summarily stated that it had reviewed the
record. However, the BIA did not make any
findings regarding those conditions or their effect on Doe’s request for withholding of removal
under the INA and the CAT. Thus, even if we
could reverse, we cannot meaningfully review
the BIA’s decision where it failed to address key
evidence or adequately explain the basis of its
decision. Accordingly, reversal of the IJ’s deci-
January 2008
sion with an instruction to grant Doe’s request
for withholding is not appropriate on the basis
of the record currently before us.”
The court held that on reconsideration before
the BIA, all of Doe’s objections to the prior
decision-making in the case should be up for
consideration, not just the evidence of deteriorating conditions. Doe had argued that the BIA
had improperly failed to use an objective standard in evaluating his claim for relief under the
CAT, which he argues turns on an assessment of
whether the Egyptian government tortures gay
men, not on the more subjective question of
whether he has a reasonable fear of personally
being persecuted or tortured. Doe asked that
the court instruct the BIA on the proper standard for considering his claim. Rejecting this
request, Judge Sloviter wrote, “We do not presume that the BIA will make legal errors upon
its reconsideration of Doe’s claims, and anything we would say in that connection would be
a purely advisory opinion.”
In light of the news reports from Egypt about
the treatment of gay men there, it seems absurd
that there would be any question that somebody
known to the Egyptian police as gay should be
entitled to refuge in the United States, but the
dysfunctional asylum procedures as administered by the Homeland Security Department
and perhaps diplomatic concerns about alienating a significant U.S. ally in the Middle East
reduce the surprise at such a result. In this
case, the corrective of judicial review and public exposure of the absurd decision may ultimately produce an appropriate outcome.
The National Center for Lesbian Rights filed
an amicus brief in the case. A.S.L.
8th Circuit Enjoins Enforcement of Missouri
Funeral Picketing Ban
Score one for the anti-gay Westboro Baptist
Church of the Reverend Fred Phelps in its ongoing struggle to bring to America the “good
news” that “God Hates Fags” and is punishing
America for the “sin of homosexuality” by killing U.S. soldiers in Iraq and Afghanistan. On
December 6, reversing a ruling by a federal
trial judge, a unanimous three-judge panel of
the U.S. Court of Appeals for the 8th Circuit
ruled in Phelps-Roper v. Nixon, 2007 WL
4258633, that church-member Shirley
Phelps-Roper is entitled to a preliminary injunction, barring enforcement of a Missouri law
against picketing funerals, until a trial can be
held on the merits of Phelps-Roper’s constitutional attack on the statute.
The Missouri statute, Section 578.501, Missouri Revised Statutes, fairly typical of those
enacted in many states over the past few years,
was adopted in reaction to picketing by
Phelps-Roper and other members of the church
at a funeral held in St. Joseph, Missouri, on
August 5, 2005, for Army Specialist Edward
3
Lee Myers. Although there is no evidence in the
case about the nature of the picketing, the court
visited the church’s website, www.godhatesfags.com, and found a full description of the
messages they routinely convey at such events,
such as “Thank God for Dead Soldiers,” “God
Blew Up the Troops,” “God Hates Fags,” and
“AIDS Cures Fags.”
This picketing led the Missouri legislature to
adopt two new provisions for the state’s criminal code. They are designated as “Spc. Edward
Lee Myers’ Law,” and the first provision, section 578.501, prohibits “picketing or other protest activities in front of or about any location at
which a funeral is held, within one hour prior to
the commencement of any funeral, and until
one hour following the cessation of any funeral.” Concerned that courts might find this
geographically too vague, the legislature
adopted a second provision, section 578.502,
to go into effect only if the first is found unconstitutional, which changes the “in front of or
about” language to a 300–foot perimeter. Several other federal courts have rejected challenges to funeral picketing laws from states that
use the 300–foot perimeter approach, which is
borrowed from statutes involving protest activities at abortion clinics. The 8th Circuit took the
position that only the first section is involved in
this case, since the second is not actually in effect.
In her challenge to the statute, Phelps-Roper
alleged, according to the opinion for the court
by Judge Kermit E. Bye, that “members of her
church believe God is punishing America for
what [the church] considers the sin of homosexuality by killing Americans, including soldiers. As part of her religious duties, she believes she must protest and picket at certain
funerals, including the funerals of United
States soldiers, to publish the church’s religious message: that God’s promise of love and
heaven for those who obey him in this life is
counterbalanced by God’s wrath and hell for
those who do not. Phelps believes funerals are
the only place where her religious message can
be delivered in a timely and relevant manner.”
Phelps-Roper argued that the Missouri statute imposed an unconstitutional burden on her
protected speech under the First Amendment,
by potentially subjecting Westboro church
members to criminal penalties if they resume
their funeral picketing activities in Missouri.
She demanded that the federal trial court issue
a preliminary injunction to bar enforcement of
the statute pending a final decision on the merits of her case.
The trial judge, noting that courts have rejected constitutional challenges to similar laws
in other states, denied her demand, “holding
she did not demonstrate she was likely to succeed on the merits, did not demonstrate irreparable harm, and the public interest weighed in
4
favor of upholding the challenged statutory provisions.”
In reversing, Bye held that the trial court applied too demanding a test in light of the plausible First Amendment claims that Phelps-Roper
was raising. According to Judge Bye, a preliminary injunction does not require the plaintiff to
show that she is more likely than not to win on
the merits, but rather “whether [she] has a substantial likelihood of prevailing on the merits of
her claim.” While disclaiming any ultimate
ruling on the constitutionality of the law, Bye
found that on every critical point of the legal
analysis, Phelps-Roper’s claim met this test.
Bye found that the statute “regulates traditional public fora,” such as sidewalks and
streets. “While we recognize a cemetery is a
nonpublic forum,” he wrote, the statute “restricts expressive activity not just within or on
the premises of a cemetery or a church, but also
on traditional public fora such as the adjacent
public streets and sidewalks.” While finding
that the law was content-neutral, since it prohibits all picketing, not just picketing with a
particular point of view, Bye pointed out that
federal precedents only allow restriction of
First Amendment-protected expressive activity
when necessary to serve “a significant government interest,” when the restriction is “narrowly tailored” and “leaves open ample alternative channels of communication.”
Looking to the 8th Circuit’s prior ruling on a
statute regulating picketing or protests at
church services, Olmer v. Lincoln, 192 F.3d
1176 (8th Cir. 1999), Bye observed, “we held
the government has no compelling interest in
protecting an individual from unwanted speech
outside of the residential context… Allowing
other locations, even churches, to claim the
same level of constitutionally protected privacy
would, we think, permit government to prohibit
too much speech and other communication. We
recognize that lines have to be drawn, and we
choose to draw the line in such a way as to give
the maximum possible protection to speech,
which is protected by the express words of the
Constitution.” In light of this, Bye concluded,
Phelps-Roper as a “fair chance” of proving that
her First Amendment rights outweigh the rights
of mourners not to hear her message.
Bye also faulted the statute on the “narrow
tailoring” and “alternate channels of communication” points. Pointing out that the Missouri
statute applied to all aspects of a funeral, including processions on public roads from
churches or funeral parlors to cemeteries, Bye
concluded that Phelps-Roper has a “fair
chance” of prevailing on the claim that the statute is overbroad, although Bye disclaimed any
ruling on the narrower 300–foot perimeter statute, since it would not go into effect unless the
broader statute is struck down. Bye also concluded that “Phelps-Roper presents a viable
argument that those who protest or picket at or
January 2008
near a military funeral wish to reach an audience which can only be addressed at such occasion and to convey to and through such an audience a particular message,” so she has a “fair
chance” of proving that the statute “fails to afford open, ample and adequate alternative
channels for the dissemination of her particular
message.”
The court concluded that the trial court had
“abused its discretion when it concluded the
balance of harms weighed toward denying the
motion for a preliminary injunction based on its
erroneous determination as to Phelps-Roper
being unlikely to succeed on the merits.” Although the court insisted that it was not determining the constitutionality of the statute in this
opinion, nonetheless it ruled that she “is entitled to a preliminary injunction while the constitutionality of [the statute] is thoroughly reviewed.”
The upshot is that the Missouri antipicketing statute may not be enforced until the
federal district judge reaches a decision on the
merits, which will undoubtedly be informed by
the 8th Circuit’s favorable evaluation of
Phelps-Roper’s arguments in this opinion.
The court’s reasoning also implicitly reinforces Fred Phelps’ constitutional arguments
against a recent multi-million dollar federal
jury verdict in a torts case brought by survivors
of another soldier whose funeral they picketed
in Maryland. According to an October 31 CNN
report on that lawsuit, “The family of Lance
Cpl. Matthew Snyder — who was killed in a vehicle accident in Iraq’s Anbar province in 2006
— sued the Westboro Baptist Church in
Topeka, Kansas, and its leaders for defamation,
invasion of privacy and intentional infliction of
emotional distress.” The federal jury awarded
$10.9 million in compensatory and punitive
damages, which Rev. Phelps vowed to appeal
on constitutional grounds. A.S.L.
Langan Loses Appeal on Workers’ Comp Surviving
Spouse Claim
A five-member panel of New York’s Appellate
Division, 3rd Department, ruled on December
27 in Langan v. State Farm Fire & Casualty
(Workers’ Compensation Board, Respondent),
2007 Westlaw 4530994, that the surviving
partner of a Vermont Civil Union is not a
“spouse” within the meaning of New York
State’s Workers Compensation Law, affirming a
determination by the Workers’ Compensation
Board to deny a death benefit to John Langan in
the death of his spouse, Neal Conrad Spicehandler. The ruling drew one dissenting vote.
This is Langan’s second rebuff from a New
York appellate division panel, as a panel of
judges from the 2nd Department had previously rejected his argument that he should be
able to maintain a wrongful death action against
a hospital, whose negligence he charges re-
Lesbian/Gay Law Notes
sulted in Spicehandler dying from his workrelated injury. Langan v. St. Vincent’s Hospital
of New York, 25 App. Div. 3d 90 (2nd Dep’t
2005), appeal dismissed, 6 N.Y.3d 890 (2006).
According to the opinion for the panel by Justice Anthony T. Kane, Spicehandler was engaged in his employment by State Farm Fire &
Casualty Company when he, then a pedestrian,
was struck by a motorist on the street in New
York City, a few years after he and Langan had
been united as civil partners in Vermont. (The
two men lived together on Long Island, and Spicehandler was employed in the city.) Spicehandler was taken to St. Vincent’s Hospital, where
he died somewhat mysteriously after an apparently successful operation. Langan filed a
Workers Compensation claim with the insurer
for Spicehandler’s employer, which determined
that the injury was compensable to the estate,
but that Langan was not entitled to a survivor’s
benefit as a spouse. Langan appealed that determination to the Workers Compensation
Board, which affirmed, taking the view that the
state statute authorizing survivor’s benefits
meant a marital partner when it used the term
spouse. Langan appealed further to the 3rd Department in Albany, which hears appeals from
decisions of the Workers’ Compensation Board.
Langan raised three distinct arguments on
appeal. He contended that the word “spouse”
in the statute should be interpreted to include
him, noting that under Vermont’s Civil Union
Law, civil union partners are referred to as
spouses with all the state law rights and responsibilities of spouses. Secondly, he argued that
under principles of comity, New York government agencies and courts should accord Vermont civil union partners recognition as
spouses for purposes of applying New York law.
Finally, he argued that failure to recognize his
spousal relationship with Spicehandler in this
case would violate his right to Equal Protection
of the Law under the 14th Amendment of the
federal Constitution. Justice Kane does not
mention any argument being made based on the
Full Faith and Credit Clause of the federal Constitution.
Justice Kane referred back to a prior 3rd Department decision, Valentine v. American Airlines, 17 App.Div.3d 38 (2005), in which the
court rejected a surviving spouse claim under
the Workers’ Compensation Law from a registered same-sex domestic partner of a gay airline employee who was killed in a crash off
Long Island in 2001. In that case, the court
held that a “legal spouse” for purposes of the
statute “is a husband or wife of a lawful marriage.” The court found that various references
elsewhere in the statute supported the view that
the legislature was thinking in terms of a traditional different-sex married couple, as one
might expect from a statute that dates back almost a century. Noting that the Workers’ Comp
law provides that a surviving spouse would not
Lesbian/Gay Law Notes
continue to receive benefits upon remarriage,
Kane commented, “If a party to a Vermont civil
union was considered a legal spouse for workers’ compensation purposes, the statute would
have the anomalous result of allowing a surviving civil union partner to continue collecting
spouse [sic] benefits even after entering into
another civil union, because that new civil union is not considered a ‘remarriage’ that would
terminate death benefits.” The dissent disputes
the salience of this argument.
Turning to comity, Kane described that doctrine as “an expression of one state’s voluntary
choice to defer to another state’s policy.” He
said that although a New York court might recognize somebody’s status as a Vermont civil union partner, “we are not thereby bound to confer
upon them all of the legal incidents of that
status recognized in the foreign jurisdiction
that created the relationship.” Although in Vermont civil union partners are entitled to surviving spouse benefits under that state’s workers’
compensation law, Kane asserted that New
York is not required to provide the same benefit. “The extention of benefits entails a consideration of social and fiscal policy more appropriately left to the Legislature,” he said,
concluding on this point, “We therefore decline
to recognize, as a matter of comity, all of the legal incidents of a civil union that Vermont law
provides to such parties in that state.”
Finally, on the Equal Protection point, Kane
assumed that this would be a rational basis
case, under which the workers’ compensation
law definition of spouse would be presumed
valid unless the appellant could show that denying benefits to civil union partners “serves no
legitimate governmental purpose.” Here, the
court was able to cite the N.Y. Court of Appeals’
ruling denying a same-sex marriage claim, Hernandez v. Robles, 7 N.Y.3d 338 (2006), in addition to several appellate division cases, for the
proposition that the government has legitimate
purposes in distinguishing between same-sex
and different-sex partners and providing marriage rights only to the latter.
While acknowledging that some of the factors cited to support a similar conclusion in the
Valentine case might not be applicable here,
given the differences between a New York City
domestic partnership and a Vermont civil union, nonetheless the court insisted that the legislative history of the workers’ compensation
law reflected a legislative judgment that surviving spouses of workers, who in those early 20th
century days were likely to be widows without
gainful employment, would need benefits to be
able to support their children and avoid destitution upon a husband’s demise. The benefit,
among other things, “compensates that spouse
for sacrificing his or her own career by remaining at home to raise children.” While acknowledging that many same-sex couples today are
raising children, and might have a stay-at-
January 2008
home parent primarily devoted to that activity,
“the Court of Appeals has already determined
that the Legislature’s decision to limit marriage
to opposite-sex couples is rationally related to
this legitimate interest and withstands rational
basis scrutiny,” wrote Kane, rejecting the constitutional challenge.
In other words, the incompetent, illogical
reasoning of the majority in Hernandez v. Robles
lives on to do damage in other contexts.
Dissenting Justice Robert S. Rose argued
that the court should have exercised its discretion under the comity doctrine to this case.
“There appears to be no real disagreement that
Vermont has defined its civil union as a spousal
relationship and conferred upon claimant the
legal status of spouse,” wrote Rose, “or that the
doctrine of comity requires our recognition of a
legal status acquired under the laws of another
state. Nor is there any disagreement that Workers’ Compensation Law sec. 16 affords a death
benefit to a spouse.” Rose rejected the Valentine precedent as irrelevant, noting the major
distinctions between the municipal domestic
partnership in that case and the state civil union in this one.
And, Rose pointed out, the “remarriage”
provision provides no barrier to extending comity here. It is clearly a reflection of the time
when the statute was passed. “Since a civil union is now an alternate way to become a legal
spouse and replace that obligation, an anomalous result could occur under the majority’s
strict reading of the statute even if civil union
spouses were excluded from workers’ compensation death benefits. Under the majority’s construction, the term ‘remarriage’ would mean
that, upon later entry into a civil union, the surviving spouse of a marriage would not face termination of death benefits because it would not
be a remarriage. That result can be avoided by
reading the term ‘remarriage’ to mean entry into
a subsequent marriage or civil union, thereby
treating all spouses the same.”
Rose also commented in conclusion that exercise of comity would render the Equal Protection issue moot; if comity is not extended, Rose
argues, a violation of the Equal Protection
clause does occur, which would require reversing the Workers’ Compensation Board decision.
The court’s decision could be appealed by
permission to the Court of Appeals. Lambda
Legal filed an amicus brief in support of Langan’s appeal. A.S.L.
Gay Dad Wins Enforcement of Surrogacy
Agreement in Minnesota Appeals Court
The niece of a gay, HIV-positive New York man
volunteered to gestate an anonymously donated
egg fertilized by her uncle’s sperm. The niece
signed a contract with her uncle surrendering
all rights to the child after its birth. After she
5
bore the child, she refused to give up the child
to her uncle. Minnesota trial and appeals courts
upheld the validity of the contract and allowed
the father to take custody of his child, and to rename the child. In re Paternity and Custody of
Baby Boy A., d/o/b Dec. 17, 2005 (PGM v.
JMA), 2007 WL 4304448 (Minn. App., Dec.
11, 2007). The language of the unanimous decision was lopsidedly favorable to the father
and gave no credence to either the statements
or the legal arguments of his niece. PGM, a
38–year-old attorney living in New York,
wanted to have a genetically related child. He
approached his sister about carrying a donated
egg fertilized with his sperm. PGM’s sister refused, but mentioned to her daughter, PGM’s
niece, that her uncle was looking for a gestational surrogate. The niece, JMA, a student in
Minnesota who was pregnant at the time, contacted her uncle to volunteer to be the surrogate. The uncle at first declined but, after the
niece gave birth to her own child, accepted the
niece’s offer.
PGM drafted a gestational surrogacy agreement, which both uncle and niece signed in
mid-December 2004. The agreement was to be
governed by Illinois law, because that state provided a statutory scheme for such agreements.
Major provisions of the agreement included
that JMA would carry PGM’s genetic child, that
she would bear the child, that she would disclaim any right to the child, and that PGM
would pay all of JMA’s expenses. The agreement disclosed that PGM was HIV positive,
and that his sperm would undergo a “sperm
washing” procedure before fertilizing the egg.
The niece disclaimed any parental rights in the
child, and granted sole custody to her uncle.
JMA declined PGM’s offer to have independent
legal counsel review the document at PGM’s
expense. PGM later agreed, in an oral modification of the contract, to pay JMA $20,000 for
her services, and he delivered a check for that
amount in late December 2004. The donated
ovum was successfully fertilized, and was implanted in JMA on April 12, 2005, in Illinois.
In summer 2005, JMA stayed with PGM in
New York for two months, but the two had a falling out. JMA then demanded an additional
$120,000 for her services, threatening to have
an abortion if that amount was not paid. PGM
did not pay, but later that year drafted a new
agreement to provide payment for JMA’s additional needs for health care and transportation.
PGM did not sign the revised agreement. On
December 17, 2005, JMA bore a child, but did
not tell her uncle about the birth, which his sister told him about. On December 19, PGM filed
a paternity action. JMA was assigned an attorney. A social services agency investigated and
filed a report recommending that PGM, the uncle, should have custody of the child, and that
JMA’s keeping the child was motivated by the
prospect of financial gain.
6
A trial court found that PGM was entitled to
custody under the Illinois Parentage Act, and
denied JMA any parental rights. JMA appealed
the decision. The Minnesota Court of Appeals
upheld the trial court’s decision, issuing a
unanimous opinion written by Judge Bruce D.
Willis covering: 1. Whether the choice-of-law
provision in the agreement was properly enforced. 2. Whether a gestational surrogacy
agreement is enforceable in Minnesota. 3.
Whether a surrogacy agreement that does not
strictly adhere to Illinois’ statutory requirements can be enforced under Illinois law.
Judge Willis stated that Minnesota courts
traditionally enforce parties’ choice of law provision, and the record showed that the parties
did not choose Illinois law in order to avoid
Minnesota law. Rather, Illinois provided a clear
statutory structure for interpreting gestational
surrogacy agreements. Although the niece contended that she did not understand the choice
of law provision, the court did not find this contention credible.
The appeals court found that gestational surrogacy agreements are valid and enforceable
contracts in Minnesota. Concerning this particular agreement, the court found that JMA
had made an offer, that PGM had accepted, and
that consideration had been paid, thus creating
a valid contract. The written contract by its
terms stated that any modifications to the contract must be in writing. JMA thus contended
that the contract was not enforceable because
the written contract had been modified orally to
provide for the payment of $20,000. However,
the Minnesota court held that such an oral
modification does not invalidate an agreement,
because Illinois law permits oral modifications
even in the face of such provisions.
JMA next asserted that she had been coerced
into signing the agreement. Under Illinois law,
she had the burden of proving sufficient coercion to deprive her of the exercise of her free
will. But the court found, on the contrary, that
JMA is a strong-willed person with no difficulty
protecting her own rights, and not capable of
being coerced. She was motivated to sign the
contract by her desire to help others and by the
prospect of receiving a large amount of money.
JMA then contended that enforcement of a
surrogacy agreement is against public policy in
Minnesota, because there was no statutory or
case law authority sanctioning the determination of a child’s parentage and custody under a
private contract. However, noted the court,
Minnesota law does not prohibit such agreements, and the legislature expressly protects
the rights of individuals who use assisted reproduction technologies. JMA asserted that various provisions in the Minnesota statutes give
rights to her as a parent, but not to PGM. The
court viewed the statutes as defining numerous
ways to determine parentage, only one of which
pertains to the act of actually giving birth, and
January 2008
that those ways include voluntary recognition of
parentage by the parties, proof of adoption, and
declarations of parentage by the acknowledgement of unmarried parents.
Lastly, JMA cited a statute prohibiting the
transfer of a child from a parent to another individual in any way other than by the adoption
procedure. However, since JMA was no more
the “parent” than PGM, no transfer from a parent to a non-parent was involved, held the
court.
The Minnesota court determined that the Illinois Parentage Act was applicable (even
though it been superseded after the making of
the agreement), and was correctly applied. The
statute set forth a procedure to determine parentage by voluntary consent of the parties.
However, the agreement signed by JMA and
PGM did not satisfy every requirement of the
act. Under Illinois law, such defective compliance does not invalidate the agreement, but instead raises a presumption of a parent-child relationship between the gestational surrogate
and the child. JMA claimed the benefit of the
presumption in favor of her parentage, but the
court, as permitted under Illinois law, found
clear and convincing evidence rebutting the
presumption, specifically: (1) that JMA admitted, and genetic testing confirmed, that she was
not the child’s biological mother; (2) that the
child was conceived by using an anonymous
egg donor; (3) that DNA testing established
that there was a 99.99% probability that PGM
was the child’s biological father; (4) that a particular doctor performed the embryo transfer
that resulted in JMA’s gestational surrogacy;
and (5) that the parties intended to enter into an
agreement that complied with the relevant Illinois statutes.
Thus, under Illinois law, PGM rebutted
JMA’s claim of parentage with a strong showing
that he is the actual parent. Alan J. Jacobs
Gender Indeterminacy Threatens Marriage
Our society’s insistence that gender must be binary either male or female poses special difficulties to people born into sexual ambiguity,
sometimes referred to as intersexuals, well illustrated by a December 4 decision by the
Court of Appeals of Wisconsin in a case descriptively titled In re the Modification of the
Birth Certificate of Stephanie Tia Calewarts,
2007 Westlaw 4233759.
Stephen Thomas Calewarts was born in 1949
in Kenosha, Wisconsin, and the original birth
certificated identified Calewarts as male. At
birth, Calewarts had “ambiguous genitalia,”
according to documents filed in the case as discussed by the Wisconsin State Journal in a December 5 article by Robert Imrie that is carried
by the Associated Press. There was tissue for
both a penis and a vaginal opening. Neither the
news article nor the court opinion casts any
Lesbian/Gay Law Notes
light on how Calewarts lived with this condition
for the next fifty years.
In July 1999, Calewarts had surgery to “correct some medical problems,” including the removal of his testicles, performed by Dr. Pierre
Brassard in Montreal. Dr. Brassard signed an
affidavit indicating that he had performed gender reassignment surgery on Calewarts, and
“she is now female. Any designation on her
birth record and all official documents as male
is [sic] incorrect.” Brassard stated in the affidavit that its purpose was to “support her request
to amend her birth record and all official documents to reflect her new name and female gender.”
Using the Brassard affidavit as evidence,
Calewarts petitioned in the Brown County, Wisconsin, Circuit Court in 2000 to change the
birth certificate from male to female, and her
name from Stephen to Stephanie. On July 12 of
that year, Circuit Judge John Dennis McKay
granted the petition, ordering that a form be
completed changing the sex designation on
Calewart’s birth certificate as requested. Calewarts indicates that the name change was to
honor a grandmother who use that name for the
child, not to indicate female sex. Most of the
time, Calewarts goes by the genderindeterminate name “Steph.”
Several years later, Calewarts met and fell in
love with a woman from New Zealand and
sought to marry. However, Brown County officials determined that Calewarts is legally female as a result of the 2000 birth certificate
change, and voided the license that had been
issued for the wedding. On October 13, 2006,
Calewarts filed a new petition with Judge
McKay, asking that the birth certificate be
changed back to male. In this new petition,
Calewarts provided medical documentation
from Dr. Chris Kordiyak, a Green Bay doctor,
who characterized Dr. Brassard’s procedures as
“reconstructive surgery,” not sex change surgery. Kordiyak pointed out that Calewart has “a
prostate, deep voice, facial hair, and bone
structure consistent with being male.” Although Calewart has “some female characteristics,” said Kordiyak in his affidavit, overall
Calewart has “predominantly male characteristics” with “surgical reconstruction done for
health reasons.”
Calewarts also submitted to the court a laboratory blood report showing a typical XY male
chromosome pattern.
But Judge McKay, insisting that legal rules
must be followed, pointed out that there is a
statutory one year time limit to appeal or challenge a judicial order of the type he had issued
in 2000. A court is authorized to grant relief
based on “mistake, inadvertence, surprise, or
excusable neglect,” but only if the motion to
correct the birth certificate is made within one
year.
Lesbian/Gay Law Notes
The relevant statute creates an exception for
“extraordinary circumstances,” but, according
to the court of appeals, “In her 2006 filings,
Calewarts did not give the court an indication
that it was being asked to decide whether extraordinary circumstances were present, or
whether her motion was made within a reasonable time.” Instead, wrote the court, Calewarts’s court papers argued that she is male and
that the prior order changing her birth certificate was based on an misunderstanding between Calewarts and Dr. Brassard, and also on
Calewart’s own failure to understand the legal
ramifications of asking for the change in her
birth certificate in the first place.
The court of appeals’ response to this sad tale
is to state that the trial court correctly rejected
the 2006 petition, in light of the papers before
it, but that all is not necessarily lost. The court
observes that Calewarts can file a new petition
with Judge McKay, this time providing arguments in favor of finding an “extraordinary circumstance” justifying belated reconsideration
of the appropriate gender designation on the
birth certificate.
Meanwhile, however, Calewarts fears separation from the woman he loves. According to
the newspaper report, Calewarts’ reaction to the
court of appeals decision was to say, “Oh God,
no. I am scared to death right now. I am not going to see my wife. She is the only thing that
means anything to me. I am a nobody right
now.” Because the woman is not a U.S. legal
resident or citizen and the marriage license was
voided, she may not be able to stay lawfully in
the United States while further proceedings
take place, and there is no certainty that Judge
McKay, who has already once rejected Calewarts’ petition to revert back from female to
male, will be more receptive to an extraordinary
circumstances argument.
None of these complications would matter, or
course, if the state and federal governments
would respect the right of individuals to marry
regardless of sex. The whole thing seems baffling to Calewarts, who commented, “I thought I
was going to have two birth certificates. One of
each. Big deal. I was born with two genders. I
can’t have sexual intercourse because nothing
works.”
Calewarts points out that he lives as male,
despite the birth certificate. He dresses as a
man, speaks in a deep voice, and carries a driver’s license listing him as male, in accord with
his appearance. Calewarts owns a local business called Tool Belt Divas (demolition and
renovation work). And he has spent more than
$2,000 so far to try to have his birth certificate
changed back to what it was to begin with.
A.S.L.
January 2008
South Carolina Appeals Court Strikes Travel
Restriction on Gay Dad’s Visitation Rights
Finding that a family court judge had improperly allowed his disapproval of a gay father’s
“lifestyle” to influence a decision imposing a
travel restriction when the father has visitation
with his children, the South Carolina Court of
Appeals struck down the restriction in the case
of West v. West, Unpublished Opinion, No.
2007–UP–555 (filed December 14, 2007). Despite being designated as unpublished, the
opinion is accessible on the court’s website,
and was the subject of a detailed report in the
Dec. 24 issue of the South Carolina Lawyers
Weekly.
Lexington County Family Court Judge H. E.
Bonnoitt, Jr., granted a divorce to Ernest and
Mary West after they had lived separately for a
year. Mary received custody of their two children, with Ernest being granted normal unsupervised visitation rights. However, Judge Bonnoitt prohibited Ernest from travelling out of
state with the children while exercising visitation rights, expressing fear that Ernest might
expose them to his “homosexual paramour”
who lives in Florida.
The Wests were married in 1992. In 2002,
Ernest’s employer went bankrupt and he lost
his job at the Columbia, South Carolina, location, but the employer offered Ernest a job in
Dallas, Texas. Ernest moved to Dallas, while
Mary and the children remained in South Carolina. After a year in Texas, Ernest moved to Miami, Florida, to take up a new job opportunity.
In the course of these moves, Ernest became involved in a gay relationship, but fearing that it
would affect his contact with his children and
disadvantage him in the divorce proceeding
that Mary initiated in 2004, he denied the existence of what the court calls “the adulterous affair” until a week before the final hearing on his
divorce.
The Court of Appeals’ per curiam opinion
comments that “in deciding to impose restrictions on Husband’s visitation, the judge ‘felt it
necessary to impose specific restrictions related to the Husband’s actions’ because he did
not condone Husband’s alternative lifestyle.
The judge acknowledged the travel restriction
was an ‘unusual restriction... based on the Husband’s self-indulgent and deviant lifestyle’ but
‘necessary to protect the morality of the children.’”
Judge Bonnoitt had written, “The Husband
chose an inappropriate relationship over his
marriage. He admitted that he undertook a
covenant with his wife and with a higher power
which was broken. Based on his willingness to
break this covenant and pursue an adulterous
relationship... his visitation should be confined
to the State of South Carolina to protect the best
interest of the minor children.” Bonnoitt reasoned that keeping visitation within the state
7
would encourage compliance with the court’s
orders and that Ernest would be “less likely to
be distracted by the pursuit of his other relationship, and as a result, the children are more
likely to receive quality time with their father”
Bonnoitt also express concern that if the children were taken out of state, Ernest would be
“more likely to expose the children to a harmful
situation including exposure to his paramour
who lives out of state.”
On appeal, however, the court found there
was no evidence “that Husband’s conduct endangered or adversely affected the welfare of
the children.” Although the guardian ad litem
appointed to represent the children’s interest in
the divorce proceeding had “expressed concern with Husband’s lack of candor concerning
his sexuality,” she had “found no evidence
Husband had the children around any paramour or subjected the children to an alternative
lifestyle.” Indeed, Ernest testified that he had
no intention to introduce his children to his gay
partner. A psychologist appointed by the family
court also testified that Ernest presented no
danger to the children and did not require supervised visitation.
The appellate court concluded that “the
judge improperly imposed a travel restriction
on Husband’s visitation with his children. Absent any evidence that Husband’s adulterous
conduct endangered or adversely impacted the
welfare of his children, we hold the judge
impermissibly penalized Husband for his conduct and that it is not in the best interests of the
children to uphold the travel restriction.”
A.S.L.
Virginia Appeals Court Upholds Restrictions on
Lesbian Mother’s Visitation
Ruling in Sirney v. Sirney, 2007 WL 4525274
(Dec. 27, 2007) (not reported in S.E.2d), the
Court of Appeals of Virginia affirmed a trial
court’s decision that a lesbian mother could not
have her partner present overnight when exercising visitation with her children. The trial
court insisted that it was not basing this decision on the fact that mother had a same-sex
partner, but rather on the discomfort of the children with their mother’s relationship.
According to the per curiam opinion by the
appeals court, the parties married in 1989 and
divorced in 2006. There were four children in
the marriage. The mother left the marriage in
August 2003, taking the children with her to
Oregon, but father brought the children back
home to Virginia a few months later. Under an
order of December 3, 2004, parties shared joint
custody, but the children lived with father in
Virginia and mother had visitation rights.
Mother continues to reside inn Oregon with her
“female life partner.” In July 2006, father filed
the petition in this proceeding to modify custody and visitation, seeking sole custody and
8
limitation on the children’s exposure to
mother’s life partner during visitation.
According to the court, the evidence showed
that hostility and a complete breakdown of
communication between the parents made joint
custody inappropriate. The trial court found
that both parents had contributed to this problem, and that mother’s relationship to the children had deteriorated because she had not exercised her visitation rights for long periods.
The trial court also considered mother’s cohabitation to be a change in circumstances, but
said that the custody case was “not at all” about
the mother being in a lesbian relationship, the
judge stating that the relationship “has not
been the focus of my determination.” Testimony by the two older children showed “varying degrees of discomfort” about their mother’s
relationship, and one child testified that she
would rather see her mother “alone.”
Although the trial judge did not order that
mother’s partner could have no contact with the
children, the order did say that there shall be
“no overnight stays by a person to whom
[mother] is not married with whom she is involved in a romantic, sexual relationship while
the children are visiting.” The trial judge
pointed out that this restriction would apply to
sexual partners of either sex. “In addition,” relates the court of appeals, “the court ordered
that mother could introduce the children to her
friends or involve her friends in family activities with the children, but she had to ‘keep
paramount the children’s comfort level.’”
In approving this order, the court of appeals
stated: “The trial court’s overnight visitation
restriction did not impose a limitation based
upon mother’s homosexual relationship and it
did not restrict or deprive mother of a liberty interest. Rather, the trial court’s visitation restriction was gender neutral, applying to both male
and female overnight guests, thereby applying
equally to both heterosexual and homosexual
relationships.” The court emphasized that the
trial judge had insisted that the homosexual nature of mother’s relationship was not the issue
for the court, but rather the discomfort of the
children with mother’s relationship. Concluded
the court, “Mother’s argument that the trial
court would have had no grounds to impose the
overnight visitation restriction if she was married to her current life partner in a marriage that
Virginia would recognize as legal poses a hypothetical situation,” and the court refused to address hypotheticals.
This ruling seems consistent with the disingenuous approach of the Virginia courts in
many such cases involving gay parents, insisting that the restrictions they impose are evenhanded when in point of fact they are clearly
anti-gay. A.S.L.
January 2008
Florida Supreme Court Rejects Appeal of Gay
Student’s Claim for Emotional Distress Damages
Over Confidentiality Breach
After a lower court certified a question of great
public importance to the Florida Supreme court
in Woodard v. Jupiter Christian School, 913
So.2d 1188 (Fla. 4th Dist. Ct. App. 2005), the
Florida Supreme Court decided by a vote of 5–2
on December 6 to dismiss the case without substantive review, over an impassioned dissent by
Justice Pariente (joined by Justice Anstead).
The case involved a claim of emotional distress by Jeffrey Woodard, a gay boy who suffered a breach of confidentiality concerning his
sexuality by a school chaplain after the chaplain had assured him that his conversation
would be held confidential. The chaplain told
school administrators that Woodard was gay
and he was expelled from the school, berated by
the press and administrators, and shunned by
classmates. The school was a so-called Christian school, not a public school. The lower Florida courts, applying state precedent, held that
emotional distress claims cannot be asserted in
the absence of a physical impact of some sort.
Wrote Justice Pariente, “The emotional distress Woodard allegedly suffered as a result of
the school chaplain’s breach of confidentiality
‘is at least equal to that typically suffered by the
victim of a defamation or an invasion of privacy,’” torts for which Florida has awarded
damages for emotional distress. “By concluding that the impact rule does not bar recovery in
certain cases and then deciding to leave intact a
district court decision that is contrary to that
precedent,” continued Pariente, “the Court, in
my view, is continuing to generate uncertainty
in the law.” Pariente also noted, on the merits,
that “Woodard has alleged a valid cause of action for breach of a common law fiduciary
duty,” and chided the majority if its refusal to
deny review in this case was based on disagreement with that conclusion. A.S.L.
Federal Civil Litigation Notes
Illinois — Did Wal-Mart commit a tort or violate a contract when it sold as new a used Zune
MP3 player loaded up with gay porn to Channel
Martin, who bought the item as a Christmas gift
for her 12 year old daughter in December
2006? According to U.S. Magistrate Arlander
Keys (N.D.Ill.), ruling on pretrial discovery motions in Martin v. Wal-Mart Stores, Inc., 2007
WL 4374175 (Dec. 4, 2007), Martin is pursuing class action relief against Wal-Mart. According to her complaint, the MP3 player that
she purchased carried 62 pictures and six and
half hours’ worth of “hardcore gay porn.” Everybody involved assumes this is not some ploy
of Wal-Mart to market the things to gay men....
According to Keys’ summary of Martin’s complaint, “Shortly after she began using the de-
Lesbian/Gay Law Notes
vice, Ms. Martin’s daughter discovered the material; she was, understandably, shocked,
dismayed and horrified, as was her mother
when the daughter shared her discovery.” The
lawsuit claims that Wal-Mart’s return policies
“which allow the store to sell used electronic
devices as new” amount to a breach of contract,
and that the failure of Wal-Mart to remove
downloaded pornography from electronic devices that are returned for resale is grossly negligent. Keys’ actual ruling involved cutting
down the scope of Martin’s discovery requests.
Massachusetts — The U.S. District Court in
Boston ruled Nov. 30 to dismiss many of the
claims brought by Tammy Walker against the
City of Holyoke. Described by the court as “a
black, lesbian former sergeant in the Holyoke
Police Department, Walker was claiming a pattern of harassment from co-workers and some
superiors in the Holyoke Police Department. In
Walker v. City of Holyoke, 2007 WL 4239146
(Nov. 30, 2007), District Judge Ponsor agreed
to grant judgdment for the defendant on almost
all of Walker’s claims. The only claim that survived was a quasi-whistle-blower claim, which
the parties will continue to litigate, but allegaions of sexual orientation discrimination,
among other things, were prominent in the
plaintiff’s complant.
New York — Rejecting the defendant’s motion for summary judgment in Bennett v. Verizon
Wireless, 2007 WL 4223431 (W.D.N.Y., Sept.
18, 2007), U.S. District Judge Charles J. Siragusa found that the plaintiff had alleged facts
supporting a prima facie case of retaliation in
violation of Title VII and the N.Y. Human
Rights Law. The plaintiff claimed that the company terminated her in retaliation for her complaints to supervisors that false rumors about
her being a lesbian and have a relationship with
another employee had created a hostile working environment for her. Judge Siragusa found,
notwithstanding various arguments by Verizon
countering Bennett’s interpretation of the facts,
that the facts must be taken as alleged by the
plaintiff for purposes of deciding a pretrial motion to dispose of the case, and that Bennett’s
allegations did provide a plausible theory for
Title VII liability. A.S.L.
Criminal Litigation Notes
Federal — Military — A military news website
reported that a court martial at Quantico Marine Corps Base sentenced Lt. Cmdr. John Thomas Lee of Burke, Virginia, to two years in
prison after he pled guilty to forcible sodomy
and other charges, admitting that he had coerced a naval academy midshipman into performing oral sex on him, without disclosing that
he was HIV+. Lee, a Catholic priest serving as
a chaplain at the academy, had provided counseling to the midshipman. In addition to the
sodomy charge, Lee was charged with conduct
Lesbian/Gay Law Notes
unbecoming an officer, aggravated assault, and
indecent assault and fraternization with a person of inferior rank.
California — Rejecting a claim of ineffective
assistance of counsel, the court in In re Stephen
G., 2007 WL 4396030 (Cal.Ct.App., 6th Dist.,
Dec. 18, 2007), upheld a decision by the Santa
Clara County Superior Court to adjudge
17–year-old Stephen G. a ward of the court under the juvenile delinquency law for his part in
an attack on a gay student on the Stanford University Campus. Stephen G. was part of a group
of teenagers who got into an argument with the
gay student that led to fisticuffs. The court of
appeals could “not discern any reasonable
probability that the juvenile court would have
entered a different order on the petition absent
the complained-of acts or failures to act of
counsel for Stephen G..”
Virginia — The Court of Appeals of Virginia
upheld the conviction of a gay man on forcible
sodomy charges in Bell v. Commonwealth of
Virginia, 2007 WL 4380130 (Dec. 18, 2007)
(not reported in S.E.2d). The opinion does not
specify the age of the victim, but as age of consent was not an issue in the case, one assumes
that the complaining witness was over the age of
consent. The appellant, convicted on two
counts, argued on appeal that the state had not
presented evidence sufficient to prove that the
sexual acts were accomplished against the will
of R.C., the complaining witness, “by force,
threat, or intimidation.” The court found that
defendant had assumed a parental role in
R.C.’s upbringing beginning when R.C. was
13, and “used his authority over R.C. to subtly
and methodically introduce R.C. to pornography, masturbation, and homosexual acts. Eventually, Bell required R.C. to perform sexual acts
as a means of punishment. R.C. testified that he
engaged in the sexual acts because Bell ‘made
me feel like I didn’t have ny choice.’” The court
noted that eventually Bell was given custody
over R.C. and “the two moved into an apartment alone.” Testimony showed that Bell
worked to isolate R.C. from friends and relatives, sharply restricting his movements and
contact with the outside world. On this basis,
the court believed that intimidation had been
proved, justifying rejection of Bell’s argument
that all sex was consensual. A.S.L.
Legislative & Regulatory Notes
Federal — A bill filed by Senators Gordon
Smith (R- Ore.) and Joe Lieberman
(Ind.-Conn.) with 19 co-sponsors would provide domestic partner benefits to federal employees, according to a Dec. 19 report by
365Gay.com. The bill would cover federal
health benefits, the federal family and medical
leave act program, long term care coverage, life
insurance and retirement benefits. By the same
token, domestic partners would be subject to
January 2008
federal anti-nepotism rules in agency employment and family financial disclosure requirements. A similar bill was introduced in the last
Congress, when Republicans controlled the
Senate, and went nowhere. Hope was expressed
that Democrats controlling the current Senate
will be more amenable to holding hearings. In a
joint statement accompanying the bill, Smith
and Lieberman stated that the federal government cannot adequately compete with the private sector and state and local governments for
qualified personnel if it doesn’t provide domestic partnership benefits, which have become
commonplace among Fortune 500 corporations, major educational institutions, and many
state and local governments who employ the
kind of people sought for federal postings.
Arizona — The state’s Department of Administration has proposed regulations under
which same and different sex domestic partners
of state employees will receive health and other
benefits that are commonly provided for legal
spouses. The proposal was published in the November 30 issue of the Arizona Administrative
Register, beginning a 30 day public comment
period, after which public hearings would be
held. Ultimately, the Governor’s Regulatory
Review Council would decide whether the proposed rule becomes final. A spokesperson for
Governor Janet Napolitano (D) indicated that
she supports the proposal. The BNA Daily Labor Report, No. 223 (Dec. 5), in reporting on
this proposal, indicated that at least 13 states
and the District of Columbia provide benefits to
domestic partners, civil union partners, or lawful same-sex spouses (Massachusetts) of state
employees.
Arizona — The Scottsdale City Council
voted 4–3 to change the city’s antidiscrimination ordinance to forbid discrimination in public employment based on sexual orientation
and gender identity, but then voted 5–2 against
a proposal to consider extending the job protection to private sector employees, including employees of city contractors. Mesa Tribune, Dec.
5.
District of Columbia — The District’s Board
of Education voted on December 13 to approve
guidelines for sex education classes that mandate teaching students about sexual orientation
and trends in contraception, as well as providing sexually explicit instruction on prevention
of HIV transmission. Washington Times, Dec.
14.
Idaho — The city council in Moscow, Idaho,
approved a resolution to provide insurance
benefits for domestic partners of city workers.
The city’s insurance carrier, Regence Blue
Shield of Idaho, has recently begun selling
such coverage to private employers. The benefits plan will go into effect in 2008. Associated
Press, Dec. 20.
Maryland — Tempest in a teapot, or serious
ground for debate? Last year, the state enacted
9
a law that requires health insurers doing business in Maryland to offer coverage for domestic
partners if employers ask for such a benefit to
be included in the coverage they are buying for
their employees. However, legislators could not
agree on a definition of domestic partner, so decided to leave it to the state’s insurance Commissioner to accomplish through regulation.
Now the commissioner has proposed the regulation, and its definition has incensed some Republican state legislators. It provides that domestic partners can be same - sex or
different-sex couples, must be living together
and in a “committed relationship of mutual interdependence” for at least six months. They
can verify their relationship with three documents from among a list that includes things
like wills, joint bank accounts, or drivers licenses with a common residential address. One
legislator charged that issuance of the regulation was an attempt to lay groundwork for the
introduction of legislation to legalized samesex marriages or civil unions when the legislature convenes in January. A special hearing of a
joint House-Senate committee that oversees
proposed regulations was called, since a committee vote would be required for the regulation
to go into effect in time for the January 1 effective date of the statute. Washington Post, Dec. 9.
Pennsylvania — The borough of State College, home of Pennsylvania State University,
has adopted an ordinance forbidding most employers from discriminating on the basis of sexual orientation, familial status or gender identity. The new ordinance exempts small
businesses (those with fewer than four employees) and religious organizations from compliance. The borough government plans to consider a consistent amendment to its fair housing
ordinance during 2008. Centre Daily Times,
Dec. 18. A.S.L.
Law & Society Notes
California — Stanford Law School Dean Larry
Kramer and about 80% of the law school faculty co-signed a letter to students, urging those
who were seriously interested in jobs with the
Judge Advocate General Office of any of the
uniformed military services to contact JAG directly and arrange off-campus interviews. Their
strategy seems to be to create a situation where
there is no need to schedule on-campus interviews due to lack of student demand, thus enabling the school to avoid having military recruiters on-campus without technically
violating the Solomon Amendment, which bars
federal funding under a wide variety of government programs to any higher education institution that refuses to afford equal on-campus access to military recruiters. Responding to
criticism from an alumnus of the school on a legal blog, Dean Kramer insists that in its decision upholding the Solomon Amendment,
10
Rumsfeld v. FAIR, 547 U.S. 47 (2006), the Supreme Court specifically stated that law school
administrators and faculty may issue public
statements opposing the military’s anti-gay
personnel policies, and that the letter falls
within that protected sphere of free political
speech. Neither the Defense Department nor
the Justice Department commented in response
to an inquiry from a reporter for the National
Law Journal, which published a story about
this in its Dec. 10 issue.
Florida — Proponents of a state constitutional amendment to ban same-sex marriage
claimed to have obtained sufficient verified petition signatures to put their proposal on the
ballot in 2008. The text of the proposed amendment is: “Inasmuch as marriage is th legal union of only one man and one woman as husband
and wife, no other legal union that is treated as
marriage or the substantial equivalent thereof
shall be valid or recognized.” Although the
meaning of this language to the extent it goes
beyond the issue of same-sex marriage is not totally clear, it seems to live wiggle room for
courts to find that governments and other public employers could provide domestic partnership benefits or other limited forms of recognition of unmarried couples, but not something as
extensive as civil unions carrying nearly full
marriage rights.
New Hampshire — With the state’s civil union law scheduled to go into effect on January 1,
2008, the Boston Globe (Dec. 31) reported that
a group of couples who had registered in advance were planning to hold a group civil union
ceremony on New Year’s Day in the south
Church Unitarian Universalist Church in Portsmouth followed by a “family-friendly celebration” with a “potluck lunch, songs, and worship
scheduled,” with a group of ministers attending
to perform the ceremonies. Unlike Oregon,
there does not appear to be any serious organized effort in New Hampshire to undo this policy decision by the legislature, and a Republican state representative who introduced a bill
to block recognition of same-sex married couples as civil union couples in New Hampshire
indicated she was thinking of withdrawing the
measure. “Let’s face it, it’s our law now,” said
Maureen Mooney, from Merrimack. “I have a
feeling that Jan. 1 is going to come and we’re
going to proceed as we’ve always proceeded as
a state — except there is a new job for the secretary of state now.” A.S.L.
Australian Federal Elections Raise New Hopes for
LGBT Rights Progress
The federal election in Australia on November
24 wrought three major changes: the defeat of
the conservative Liberal/National Party coalition, the loss by the homophobic Prime Minister, John Howard, of his seat in Parliament and
the election of a Labor government committed
January 2008
to the reform of 58 property, tax and retirement
benefit statutes which presently discriminate
against homosexuals. Recognizing that the political climate has changed, the new Liberal
Party leader, Brendan Nelson, has indicated the
reforms are now unlikely to be opposed. The
previous government had overridden two attempts at civil union legislation in the Australian Capital Territory. The new AttorneyGeneral, Robert McClelland, says Labor will
not stand in the way of relationships legislation
provided it does not equate same sex relationships to marriage. The Labor Party joined the
former government in banning same sex marriage in 2004.
Perhaps the most exciting development,
though, is the appointment by the new,
church-going Prime Minister, Kevin Rudd, of
Senator Penny Wong as Minister for Climate
Change and Water. Not only is Senator Wong
the first female legislator in the federal Parliament of Asian descent (she was born in Malaysia) but she is also an open lesbian. The appointment is seen as particularly significant
because climate change and water have both
recently assumed considerable significance in
Australian politics and because Senator Wong
has also been given responsibility for international negotiations over the post-Kyoto climate
change regulatory regime. Penny Wong is
widely acknowledged to be a very competent
and strong politician. David Buchanan SC
Other International Notes
China The China Post (Dec. 20) reports that the
title of the Two-Sex work Equality Law has been
changed to the Gender Work Equality Law to
“conform with acceptance of people with different sexual orientations,” and that “fines will be
raised for employers who maintain biases
based on gender or sexual orientation with regard to recruiting, payments, job assignments
and promotions.”
Granada — Lucre speaks louder than “morality,” at least in Granada, where the tourism
minister, Clarice Modeste-Curwen, decided to
put an end to controversy about gay tourists by
lifting a ban on gay cruise ships docking and
discharging passengers at the island republic.
Toronto Star, Dec. 7. Canadian diplomatic efforts seem to have played a role in the outcome
of this dispute.
India — The Hindustan Times (Dec. 19) reported that the Delhi High Court has demanded
a response from the government to charges of
anti-transsexual discrimination in employment
by a government agency. According to the report, the court was being urged to require
guidelines for fair treatment of transsexuals,
and seemed disposed to support the need for
such guidelines.
Iran — The International Gay and Lesbian
Human Rights Commission reported on Dec. 5
Lesbian/Gay Law Notes
that despite an order by Iran’s Chief Justice to
nullify the death sentence of a young man who
had been convicted on charges of having had
sex with other boys when he was a teenager,
prison authorities nonetheless executed the
21–year-old Makvan Mouloodzadeh on December 5. All the witnesses against Mouloodzadeh had retracted their allegations at his
trial, and he indicated that his confession had
been extracted through coercion, but a court
nonetheless found him guilty based on the confession and sentenced him to death, and the Supreme Court upheld the sentence on August 1.
An international campaign against the death
sentence led Chief Justice Shahrudi to issue an
opinion Nov. 10, holding that the death sentence would be in violation of Islamic teachings
and national law, and sending the case to the
Special Supervision Bureau of the Justice Department, a group of judges designated to review cases flagged by the Chief Justice as
flawed. But that body decided to ratify the original sentence and ordered local authorities to
carry out the execution. IGLHRC News Release.
Iraq — A lengthy article in the New York
Times on Dec. 18 titled “Gays Living in Shadows of New Iraq” reported the views of gay
Iraqis that the American invasion and removal
of Saddam Hussein from power had actually set
back the cause of gay rights in Iraq. They reported that prior to the first Gulf War in 1991,
the Saddam Hussein regime had tolerated gays
and allowed gay clubs to operate. After the war,
there was a crackdown, and after the regime
was deposed by the U.S. invasion in 2003,
anti-gay religious groups emerged to dominate
the new government and openly-gay life became impossible.
Israel — The Jerusalem Post reported Dec. 9
that the government had failed to persuade the
High Court of Justice (the nation’s Supreme
Court) to back away from a prior decision barring officials of the Interior Ministry from refusing to register the lesbian partner of a owman
with a child as the child’s adoptive parent. According to the news report, the President (Chief
Justice) of the court, Dorit Beinisch, had urged
the government to withdraw its petition. The
court had ruled in 1999 by a 2–1 panel vote that
Ministry clerks lack discretion to refuse to register an adoption that was lawfully approved in
another jurisdiction — in the case of Ruti and
Nicole Berner-Kadish, California.
Jamaica — 365Gay.com reported on Dec. 4
that the Ministry of Education in Jamaica has
“ordered a ban on any book that mentions homosexuality in a favorable light.” The ban was
imposed after a decision to remove a home economics book that briefly mentions families
headed by same-sex partners. Education Minister Andrew Holness reportedly issued a warning to all schools, instructing them to submit
any questionable books for government review.
Lesbian/Gay Law Notes
The article on 365Gay.com notes a history of
horrific anti-gay oppression in Jamaica, including the assassination of gay rights leaders on
the island.
Nepal — Ruling on a petition filed by gay activist groups, the highest court of Nepal held on
December 21 that in order to comply with constitutional guarantees, the government must
enact laws to protect gay people from discrimination and change any current policies that
could be deemed discriminatory on the basis of
sexual orientation. According to a spokesperson for the court quoted in an Associated Press
story, it is up to the government to determine
how to comply with the court’s order, and, said
the news report, “ it was not immediately clear
whether the ruling overturns current laws banning homosexuality or whether the government
would be compelled to recognize same-sex
marriages.” Under existing statutes, gay sex is
punishable by up to two-years in prison. A
leader of one of the plaintiff groups told the A.P.,
“It was an extremely positive decision and a
pleasant surprise for us. It would set a precedent for other conservative countries like Nepal.”
Spain — 365Gay.com reported on Dec. 13
that the Spanish government has agreed to recognize civil partnerships from the U.K. as
equivalent to same-sex marriages in Spain.
This was in response to efforts on behalf of Paul
and Martin Ward, British civil partners, who
were planning to live together in Spain, where
Paul was working and Martin was planning to
move. When they were initially informed by the
British consul in Malaga that their U.K. civil
partnership would not be recognized in Spain,
they enlisted the help of the British Ambassador, the Foreign Office, members of the European Parliament and the UK gay rights group
January 2008
Stonewall to lobby the Spanish government to
change the policy.
Uruguay — Reuters reported on Dec. 18
that Uruguay’s Congress had legalized civil unions for both same-sex and different-sex couples, in what was reported to be the first such
national law in Latin America. According to the
Reuters report, only couples that have been cohabiting for five years will be eligible to register, upon which they will have “rights similar to
those granted to married couples on such matters as inheritance, pensions and child custody.” The news report did not specify that civil
union couples will have all the same legal rights
and responsibilities as married couples. The
next day, Reuters reported that Uruguay President Tabare Vazquez had announced that he
would sign the legislation, which he did the following week. Several large cities in Latin
America have enacted civil union or domestic
partner ordinances, but this is said to be the
first such law on the national level. A.S.L.
Professional Notes
An article in the ABA Journal, “Overlooked No
Longer” by Siobhan Morrissey (December
2007 issue, pages 62–63), confirms the news
report we relayed last month: that the American
Bar Association has established a Commission
on Sexual Orientation and Gender Identity, intended to address professional issues for LGBT
attorneys. The chair is Jeffrey Gibson, a partner
at Goldstein, Gellman, Melbostad, Gibson &
Harris in San Francisco. Further investigation
on the ABA website revealed the names of the
other members of the Commission, all appointed by ABA President William H. Neukom
in response to a decision by the ABA House of
Delegates last February to amend the organization’s official goals to add LGBT attorneys to the
11
list of those for whom the organization is dedicated to full and equal participation in the profession. The other Commission members are
Pamela C. Enslen (Kalamazoo, Mich.), Courtney G. Joslin (Davis, Calif.), Jeffrey E. M. Joyner, Patrick McGlone, David Remes, Paul M.
Smith, and Melvin White (all of D.C.), E. John
Krumholtz (Arlington, Virginia), Jennifer Levi
(Easthampton, Mass.), Shannon Minter and
Therese M. Stewart (San Francisco), and Abby
R. Rubenfeld (Nashville, Tennessee). Nuekom
also appointed Mark D. Agrast of Washington,
D.C. as a special advisor to the Commission.
Agrast is a past member of the ABA Board of
Governors and past chair of the ABA Section on
Individual Rights and Responsibilities. Many
of the Commission members are now or have
been prominently associated with LGBT public
interest law firms as staff members or cooperating attorneys on major cases. The Commission
appears broadly representative of the “out”
LGBT bar.
Harvard Law School has established a student-run Gay, Lesbian, Bisexual and Transgender Law Clinic intended to provide free and
low-cost legal services to GLBT clients in cases
involving divorce, custody, child support,
adopts, wills, school-related matters and other
family law and estate planning issues. The law
school’s Family Law Clinic had been providing
such services, but based on assistance requests
the administration determined that a standalone clinic intended to respond on these issues
was warranted. The project is being undertaken
in collaboration with HLS Lambda, the LGBT
student organization at the school. The clinic is
staffed by second and third year law students.
Robert Greenwald is the clinic’s managing attorney. Boston Globe, Dec. 4. A.S.L.
AIDS & RELATED LEGAL NOTES
Kansas Federal Court Rejects Prisoner’s
Treatment and Privacy Claims
U.S. Senior District Judge Sam A. Crow dismissed federal constitutional claims asserted
by inmate Raymond Mason concerning negligent medical treatment and alleged improper
disclosure of his HIV status in Mason v. Bruce,
2007 WL 4335520 (D. Kans., Dec. 6, 2007).
Mason alleged that Dr. Song, on the Hutchinson
Correctional Facility’s medical staff, had misdiagnosed a “skin eruption” as poison oak rather
than shingles, gave him inappropriate medicine, and that his CD4 count dropped to danger
levels as a result. He also alleged that Dr. Song
mentioned his HIV status in the presence of a
prison guard, in violation of internal prison
rules, resulting in a breach of confidentiality
that led to him being harassed by other indi-
viduals in the institution. In dismissing both
constitutional claims, Judge Crow observed
that negligence by a health care provider has
been held not to violate a prisoner’s constitutional rights, the appropriate venue for redress
being a state law medical malpractice claim. As
to the privacy allegation, Judge Crow found that
based on the allegations and the admissions of
Dr. Song during discovery, it appeared that she
had inadvertently mentioned plaintiff’s HIV
status and had not intended to violate his confidentiality. Wrote Crow, “the fact that a prison
official discloses information in violation of internal procedures does not make the disclosure
a violation of one’s constitutional right to privacy… This is not to say that the intentional
disclosure of an inmate’s private medical information, such as his HIV status, by a government official named as defendant to other in-
mates for an illegitimate purpose would not be
held to violate a federal constitutional right to
privacy. In this particular case, however, plaintiff has not alleged an intentional disclosure by
a named defendant for an improper purpose…
In fact, plaintiff’s allegations and exhibits indicate that Dr. Song’s statement of this information in the presence of Officer Wilson was unintentional and not public. Moreover, plaintiff’s
own exhibits indicate that Officer Wilson accompanied Mr. Mason for a proper administrative purpose, and plaintiff does not allege otherwise.” The judge also noted that plaintiff had
failed to provide details concerning the alleged
harassment he had suffered in terms of dates,
occurrences, names of perpetrators, and that
such activity could not be imputed to defendant
Song. A.S.L.
12
N.Y. Appellate Division Rejects Time Limits on
Emotional Distress Claim Based on Inaccurate
HIV Report by Hospital
A man seeking damages for emotional distress
resulting from being incorrectly told he was
HIV+ based on an erroneous hospital record
was not limited to damages for the brief period
from the time he was wrongly told he was HIV+
until the time that his subsequent test results
showed he was negative, ruled the N.Y. Appellate Division, 2nd Dept., in Lopez v. Beth Israel
Medical Center, 2007 WL 4328513, 2007 N.Y.
Slip Op. 09737 (Dec. 11, 2007). As related in
the court’s per curiam opinion, plaintiff had applied to Social Security for benefits stemming
from a kidney condition for which he had been
treated at Beth Israel. In its written decision denying the claim, the Social Security Administration mentioned that plaintiff’s medical
records showed he was HIV+. He actually was
not, “and the medical records referenced by the
SSA were actually those of another, unrelated
individual who had tested positive for the HIV
virus [sic] while at the defendant hospital,”
wrote the court. On March 19, 2001, plaintiff’s
attorney, relying on the SSA decision, informed
plaintiff that he was HIV+. Plaintiff, who had
never knowingly submitted to an HIV test before then, promptly arranged to be tested and
learned on April 3, 2001, that he was not infected. He sued for damages for alleged emotional and psychological distress resulting from
the hospital’s alleged negligence in reporting
incorrectly to SSA that he was HIV+. The hospital moved to limit emotional distress damages
to the short period from March 19 to April 3, apparently relying on cases limiting damages for
AIDS phobia based on accidental exposure.
The trial court denied the motion, and was affirmed by the Appellate Division. “Since a fair
reading of the plaintiff’s complaint indicates
that he does not seek to recover damages based
on any fear of contracting AIDS, nor has he alleged any actual exposure to the HIV virus
[sic],” wrote the court, “the court properly denied the defendant’s motion attempting to place
a time limitation on the damages recoverable by
the plaintiff.” However, the trial court had also
granted plaintiff’s cross-motion seeking judgment on liability as a matter of law, and was reversed by the Appellate Division, saying that
“the plaintiff failed to establish his prima facie
entitlement to judgment as a matter of law. We
note that the defendant never sought summary
judgment on the issue of liability, and we do not
pass upon the merits of any such motion
herein.” A.S.L.
January 2008
Virginia Federal Court Rejects HIV+ Inmate’s
8th Amendment Claim
In Thompson v. Neeb, 2007 WL 4269328
(W.D.Va., Dec. 3, 2007), Senior District Judge
Jackson L. Koser, after finding that an HIV+
inmate had failed to exhaust administrative
procedures prior to bringing his federal court
action contending deliberate indifference to his
medical condition by the nurse responsible for
health care in the institution, asserted that in
any event the case was not meritorious because
all the evidence indicated that the lengthy delay in obtaining appropriate HIV-related meds
for the plaintiff were not due to deliberate indifference by the named defendant, the prison
nurse. According to the nurse’s testimony, as
summarized by the court, she undertook an arduous struggle to get appropriate meds for the
plaintiff, and the lengthy delay in doing so had
as much to do with bureaucratic policies of the
prison, local pharmacies, and local health care
providers. A.S.L.
AIDS Litigation Notes
Federal — Florida — In Meszes v. Potter, 2007
WL 4218947 (M.D. Fla., Nov. 28, 2007), the
plaintiff alleged he had been discriminated
against as an employee by the Post Office and
improperly denied federally authorized family
leave. After significantly paring down the complaint, U.S. District Judge Timothy J. Corrigan
concluded that in the remainder there were
claims that required factual development at
trial. Although much of the complaint was dismissed, Judge Timothy J. Corrigan’s ruling left
intact basic discrimination claims based on HIV
status that were an intrinsic part of the case.
Federal — Georgia — Writing letters to the
warden complaining about conditions does not
constitute exhaustion of administrative remedies when a prison has an established grievance procedure, ruled District Judge William T.
Moore, Jr., in rejecting a pro se complaint by an
HIV+ inmate who claims that prison officials
were failing to follow the recommendations of
the medical staff in terms of his housing and
ventilation. Peterson v. Smith, 2007 WL
4258210 (S.D. Ga., Nov. 28, 2007). Regardless
of the merits of his case, inmate Peterson’s
claim was found non-justiciable as a result.
Federal — New York — In a case involving
allegations that an HIV+ New York State
prison inmate was wrongly deprived of HIVrelated medication for several lengthy periods
during his incarceration, U.S. District Judge
Charles J. Siragusa rejected the defendants’
motion for summary judgment and granted
Lesbian/Gay Law Notes
plaintiff’s motion for discovery. Gonzalez v. Borowsky, 2007 WL 4223432 (W.D.N.Y., Sept. 5,
2007). Prison health officials claimed that each
interruption of Gonzalez’s HIV-related medication was for valid reasons, but Gonzalez controverted their justifications in his complaint and
a significant factual dispute would preclude
summary judgment. The defendants conceded
that Gonzalez had gone without his HIV medication for significant periods of time, sometimes weeks, sometimes stretching over
months, but claimed that withholding his medication did not “threaten his life” and that his
condition was “not fast degenerating.” For
much of the case, the Gonzalez was representing himself pro se, but communications by
Gonzalez to the court raised doubts in Judge
Siragusa’s mind whether Gonzalez was mentally capable of representing himself, so the
judge appointed counsel and counsel asked for
discovery, which is granted in this ruling.
A.S.L.
AIDS Policy Notes
U.S. Homeland Security — LGBT and HIV
Rights groups are protesting regulations proposed by the Department of Homeland Security
on Issuance of a Visa and Authorization for
Temporary Admission in the United States for
Certain Nonimmigrant Aliens Infected with
HIV. Although the proposed regulations were
supposedly intended to improve the existing
procedures for allowing HIV+ persons to enter
the U.S. as tourists or for short-term business
visits (to attend meetings, conventions, etc.),
the protesters claim that in fact they erect difficult barriers to entry which belie President
Bush’s promise last year to establish a categorical waiver policy that would streamline the process for obtaining waiver of the HIVimmigration bar for short-term visitors. The
proposed regs require an individualized, detailed, case-by-case assessment of the applicant’s medical condition, treatment regimen,
HIV counseling and financial assets, require
applicants to waive in advance any right to seek
adjustment of their status after arriving in the
U.S. (such as, for example, applying for asylum
or protection under the Convention Against
Torture), and also require that HIV+ visitors
enter with a supply of all the medication they
will need for the duration of their stay. Lambda
Legal’s HIV Project is calling for revision of the
proposed regulations to provide equal treatment for HIV+ visitors with all other visitors,
arguing that under current conditions of treatment “there is no medical justification to continue to treat people living with HIV as creating, by their very presence, a danger to public
health.” A.S.L.
Lesbian/Gay Law Notes
January 2008
13
PUBLICATIONS NOTED & ANNOUNCEMENTS
7th Annual Update on Sexuality Orientation Law
& Policy
The Williams Institute at UCLA Law School
will hold its 7th Annual Update on Sexual Orientation Law and Public Policy on February 22,
2008 at the Law School. For information, list of
speakers, and registration, visit
www.law.ucla.edu/williamsinstitute. Those admitted to the California bar can earn 6 units of
California MCLE credit by participating.
The American Civil Liberties Union’s LGBT
Rights and HIV Projects are looking for a temporary staff attorney for the New York office to
fill in while a member of the current staff takes a
six month leave. The position will begin in
March 2008. Send a cover letter, resume, writing sample, law school transcript, and list of
references to: James Esseks, Litigation Director, ACLU LGBT & AIDS Project, 125 Broad
Street, 18th Floor, New York, New York
10004–2400, (212) 549–2650 (fax),
[email protected]. Applications will be accepted until the position is filled.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Bible, Jon D., Confusion in the Courts: Gender
Stereotyping and Effeminacy Discrimination,
17 Business L. Today No. 2, 31 (Nov/Dec
2007).
Boggess, Bridget M., Attempted Enticement
of a Minor: No Place for Pedophiles to Hide Under 18 U.S.C. Sec. 2422(b), 72 Mo. L. Rev. 909
(Summer 2007).
Brinig, Margaret F., From Family to Individual and Back Again, 51 How. L.J. 1 (Fall 2007)
(symposium on Loving v. Virginia; observations
on shifts in focus from family rights of individuals and rights of family units).
Brown, Darryl K., Democracy and Decriminalization, 86 Tex. L. Rev. 223 (Dec. 2007).
Burnham, Gabriel, What Does Accidental
Mean?: Autoerotic Asphyxiation as an Illustration of the Problems Affecting Accident Insurance, 13 Cardozo J. L. & Gender 607 (2007).
Cahill, Courtney Megan, “If Sex Offenders
Can Marry, Then Why Not Gays and Lesbians?”: An Essay on the Progressive Comparative Argument, 55 Buff. L. Rev. 777 (December
2007).
Carlson, Allan, Deconstruction of Marriage:
The Swedish Case, 44 San Diego L. Rev. 153
(Feb-March 2007).
Chacn, Jennifer M., Loving Across Borders:
Immigration Law and the Limits of Loving,
2007 Wis. L. Rev. 345.
Chiang, Jerry C., Plainly Offensive Babel: An
Analytical Framework for Regulating Plainly
Offensive Speech in Public Schools, 82 Wash. L.
Rev. 403 (May 2007).
Dimitrakopoulos, Ioannis G., Individual
Rights and Libertires Under the U.S. Constitution: The Case Law of the U.S. Supreme Court
(Leiden; Boston: Martinus Nijhoff, 2007).
Durand, Melissa, From Political Questions to
Human Rights: The Global Debate on SameSex Marriage and Its Implications for U.S. Law,
5 Regent J. Int’l L. 269 (2007).
English, Michael, Distinguishing True Persecution from Legitimate Prosecution in American
Asylum Law, 60 Okla. L. Rev. 109 (Spring
2007).
Farrell, Robert C., An Excess of Methods:
Identifying Implied Fundamental Rights in the
Supreme Court, 26 St. Louis Univ. Pub. L. Rev.
203 (2007).
Gildersleeve, John, Editing Direct Democracy: Does Limiting the Subject Matter of Ballot
Initiatives Offend the First Amendment?, 107
Colum. L. Rev. 1437 (Oct. 2007).
Godard, Joelle, PACS Seven Years On: Is It
Moving Towards Marriage? 21 Int’l J. L., Policy
& the Family No. 3, 310 (2007).
Gregory, John DeWitt, and Joanna L. Grossman, The Legacy of Loving, 51 How. L.J. 15
(Fall 2007).
Grindlay, Sean V., May a Judge Be a Scoutmaster? Dale, White, and the New Model Code
of Judicial Conduct, 5 Ave Maria L. Rev. 555
(2007).
Herek, Gregory M., Science, Public Policy,
and Legal Recognition of Same-Sex Relationships, 62 Amer. Psychologist 713 (October
2007).
Lubow, Adam, “… Not Related by Blood,
Marriage, or Adoption”: A History of the Definition of “Family” in Zoning Law, 16 J. Affordable Housing & Comm’y Devt. 144 (Winter
2007).
Lyons, Edward C., Reason’s Freedom and the
Dialectic of Ordered Liberty, 55 Cleveland St. L.
Rev. 157 (2007).
Massey, Calvin, The Role of Governmental
Purpose in Constitutional Judicial Review, 59
S.C. L. Rev. 1 (Autumn 2007).
Mertus, Julie, The Rejection of Human Rights
Framings: The Case of LGBT Advocacy in the
United States, 29 Hum Rts Q 1036 (Nov. 2007).
Moran, Rachel F., Loving and the Legacy of
Unintended Consequences, 2007 Wis. L. Rev.
239.
Patterson, Brian D., The Jurisprudence of Discrimination as Opposed to Simple Inequality in
the International Civil Service, 36 Ga. J. Int’l &
Comp. L. 1 (Fall 2007).
Perlaky, Mark A., Harper v. Poway Unified
School District: The Wrong Path to the Right
Outcome?, 27 N. Ill. Univ. L. Rev. 519 (Summer 2007).
Pla Tero, Raquel, Love and the State: Gay
Marriage in Spain, 15 Feminist Legal Studies
329 (Dec. 2007).
Robinson, Russell K., Uncovering Covering,
101 Nw. U. L. Rev. 1809 (Fall 2007) (review essay on Kenji Yoshino’s book, Covering).
Romero, Victor C., Crossing Borders: Loving
v. Virginia as a Story of Migration, 51 How. L.J.
53 (Fall 2007) (considering problems of binational same-sex couples under US law).
Sears, The Honorable Leah Ward, The ‘Marriage Gap’: A Case for Strengthening Marriage
in the 21st Century, 82 N.Y.U. L. Rev. 1243
(Nov. 2007).
Shams-Mulkara, Leah, Crossing the Great
Sexual Divide: Transsexuals Seeking Redress
Under Title VII of the Civil Rights Act of 1964,
81 St. John’s L. Rev. 399 (Winter 2007).
Shiller, Virginia M., Science and Advocacy Issues in Research on Children of Gay and Lesbian Parents, 62 Amer. Psychologist 712 (October 2007).
Southerland, Abigail Jones, The Tug of War
Between First Amendment Freedoms and Antidiscrimination: A Look at the Rising conflict of
Homosexual Legislation, 5 Regent J. Int’l L.
183 (2007).
Strasser, Mark, Loving Revisionism: On Restricting Marriage and Subverting the Constitution, 51 How. L.J. 75 (Fall 2007).
Thyer, Bruce A., Psychologists’ Advocacy for
the Legal Recognition of Same-Sex Relationships, 62 Amer. Psychologist 713 (October
2007).
Tsao, Scarlet, The Debate Over the Proposed
Sexual Orientation Anti-Discrimination Legislation in Hong Kong: What’s the Controversy
Really About?, 5 Regent J. Int’l L. 203 (2007).
Wardle, Lynn D., and Lincoln C. Oliphant, In
Praise of Loving: Reflections on the “Loving
Analogy” for Same-Sex Marriage, 51 How. L.J.
117 (Fall 2007) (as one would expect from this
source, an argument about why Loving v. Virginia does not provide a precedent for a constitutional right to “homosexual marriage”).
Wells, Michael L., “Sociological Legitimacy” in Supreme Court Opinions, 64 Wash. &
Lee L. Rev. 1011 (Summer 2007).
Zanghellini, Aleardo, Lesbian and Gay Identity, the Closet and Laws on Procreation and
Parenting, 16 Griffith L. Rev. 107 (2007).
Specially Noted:
The third edition of Cases and Materals on Sexual Orientation and the Law (Thomson/West
2008), has been published, with original first
and second edition author William B. Rubenstein, now at Harvard Law School, being joined
by co-authors Carlos A. Ball (Pennsylvania
State University) and Jane S. Schacter (Stanford Law School), who are primarily responsi-
14
ble for the revisions from the prior edition. The
first edition of this casebook was actually the
first casebook focused on lesbian and gay legal
issues and appeared in 1993, the second (the
first to be published by West) in 1997, so the
book was long overdue for a new edition, which
is most welcome.
January 2008
Lesbian/Gay Law Notes
AIDS & RELATED LEGAL ISSUES:
EDITOR’S NOTE:
Harper, Gary W., Sex Isn’t That Simple: Culture
and Context in HIV Prevention Interventions for
Gay and Bisexual Male Adolescents, 62 J. Amer.
Psychological Assoc’n 803 (Nov. 2007).
All points of view expressed in Lesbian/Gay
Law Notes are those of identified writers, and
are not official positions of the Lesbian & Gay
Law Association of Greater New York or the LeGaL Foundation, Inc. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in
Lesbian/Gay Law Notes is welcome and will be
published subject to editing. Please address
correspondence to the Editor or send via email.