MASSACHUSETTS HIGH COURT REJECTS DE FACTO PARENT CLAIM

January 2007
MASSACHUSETTS HIGH COURT REJECTS DE FACTO PARENT CLAIM
The Massachusetts Supreme Judicial Court has
ruled that a partner’s financial contributions to
the upbringing of her partner’s biological child
were insufficient to warrant her recognition as a
de facto parent. A.H. v. M.P., 2006 WL 3512950
(Dec. 8, 2006). The court also agreed that the
trial court was correct in refusing to recognize
the partner as a parent using either the “parent
by estoppel” or “judicial estoppel” theory.
The women began their relationship in 1995,
and jointly purchased a home in 1998. When
the couple decided to have children, they
agreed that each woman would bear a child but
that M.P. would go first. In 2000, M.P. began
treatment at a Boston fertility clinic, and she
and A.H. were listed as Parent 1 and Parent 2,
respectively. M.P. gave birth to a son in January
2001, and shortly thereafter, consulted with a
lawyer about completing a second parent adoption for A.H. Although M.P. filled out the documents right away, A.H. did not move on the application. The Court noted that, on at least three
separate occasions from November 2001 to
April 2002, M.P. asked A.H. to fill out the documents. At trial, A.H. likened these requests to
being nagged to do yardwork or laundry and
told the defendant to “get off her back.” A.H.
apparently felt as though the adoption was a formality necessary only in the unlikely event of a
“worst case scenario.” A.H. had not reviewed,
revised or signed the adoption papers at the
time the couples separated.
After giving birth, M.P. stayed home with her
son, an arrangement that the women had discussed and had expected to last for about a year.
A.H. took a three-month maternity leave from
her job as the coexecutive director of a nonprofit organization, but returned to work after
only two months. As the court noted, during
those two months, A.H.’s “contributions to the
child’s caretaking were at their maximum.”
She took care of him when he woke at night,
walked with him, bathed him, diapered him
and otherwise attended to his well-being. The
trial court noted, however, that M.P. also performed caretaking tasks, as well as breastfeeding and directing his daily routine, and
was, in the trial judge’s words, the “final arbiter” in respect to the child’s care.
LESBIAN/GAY LAW NOTES
During the first few months after their son
was born, A.H. tried to reduce her workload.
But shortly thereafter, A.H.’s nonprofit agency
experienced financial difficulties and A.H. returned to her workaholic ways. (The trial court
also noted that A.H. also competed in two triathalons and a half-marathon during this period,
which clearly did not put her in good stead with
the judge.) A.H.’s commitments were apparently a point of tension between the women,
with M.P. telling friends and family that she felt
like she was “going it alone.” About six or seven
months after their son’s birth, A.H. asked M.P.
to return to work. Notwithstanding their prior
understanding that M.P. would stay at home for
the first year, M.P. agreed to do so and, in April
2002, they hired a nanny to care for their son so
that M.P. could work part-time from home. It all
went downhill from there A.H. succeeding in
saving her business but the couple nevertheless
separated in April 2003. At some point after the
couple’s break up, M.P. destroyed the adoption
documents that would have permitted A.H. to
become a legal parent of the child.
In July 2003, A.H. filed a complaint in equity for joint legal and physical custody and
visitation, seeking to establish her status as a de
facto parent, the establishment of custodial
rights in accordance with the child’s best interests and an order that she pay child support.
Three years of highly contentious litigation followed. Shortly after A.H. filed her complaint,
M.P. moved for child support and to formalize
the visitation schedule that the women had
agreed to previously (but which had been temporarily interrupted during M.P.’s temporary relocation to her parents’ home). In August 2003,
Probate and Family Court Judge McSweeney
entered a temporary custody order for visitation
and child support. In May 2004, Judge Nelson
Dilday (to whom the case was assigned for trial)
appointed two Guardians ad Litem to investigate whether the child’s best interests required
ongoing contact with A.H., and if so, what kind
of contact. She did not ask the GALs to investigate any issues pertaining to custody.
In June 2004, M.P. moved to vacate the child
support order. A decision on this motion was
deferred until a decision was handed down in
January 2007
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: Glenn Edwards, Esq., NYC; Alan J. Jacobs, Esq., NYC; Bryan Johnson, NYLS ‘08; Steve Kolodny, Esq., NYC; Sharon McGowan, Esq., NYC;
Tara Scavo, Esq., NYC; Jeff Slutzky, 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 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
©2007 by the LeGaL Foundation of the LGBT Law Association of Greater New York
ISSN 8755–9021
T.F. v. B.L., 442 Mass. 522 (2004), in which the
Massachusetts Supreme Judicial Court refused
to impose child support obligations on a former
same-sex partner who was not the biological or
adoptive mother of the child in question. In
light of the T.F. decision, the trial court granted
M.P.’s motion to vacate the child support order
in February 2005, and M.P. returned to A.H. the
$9,000 in support payments that she had received from A.H. to date.
In July 2004, A.H. moved for increased visitation, but the motion was denied. A.H. appealed the denial to a single justice of the Appeals Court, but the justice refused to disturb
the visitation order, and noted that the parties
“appear to agree that [A.H.] qualifies as a de
facto parent.” The Appeals Court justice also
refused to entertain A.H.’s challenge to the
scope of the mandate given to the GALs, and
emphasized that the GALs would take into account considerations relevant to A.H.’s claims
to custodial rights.
The case eventually proceeded to trial, with a
decision being rendered in July 2006. Judge
Nelson Dilday dismissed all of A.H.’s claims
and awarded sole legal and physical custody to
M.P. on the ground that A.H. had failed to satisfy her burden of proving de facto parent
status. Specifically, she found that (1) A.H.’s
efforts during the relationship toward the
child’s care were not equal either in quantity or
quality to those of the defendant, (2) that the
plaintiff had failed to prove that continued contact between her and the child was in the
child’s best interests, (3) that visitation would
not be in the child’s best interests due to A.H.’s
repeated failure to heed M.P.’s instructions with
respect to the child’s care and custody and (4)
that the child would not suffer irreparable harm
from the severing of his contact with A.H. Finally, the trial judge ruled that A.H. was not entitled to parental rights under any other legal
theory.
On transfer from the Appeals Court, the Supreme Judicial Court noted that the issues presented in this case were matters of first impression. In an unanimous decision written by Chief
Justice Marshall, the court affirmed the decision of the trial court. First, with respect to
A.H.’s de facto parenthood claim, the court began by noting that the law’s emphasis on a de
facto parent’s caretaking duties, as opposed to
other parenting duties, was wholly appropriate
due to the fact that the de facto parenting doctrine is basically a reflection of the “best interest of the child” analysis that governing custody proceedings. Without disparaging the
importance of “breadwinner” and other parenting roles, the court insisted that it was reason-
2
able to assume that a child was far more likely
to be harmed by refusing to recognize as a parent someone who had served as a caretaker to
the child due to the intimate and interactive nature of the caretaking relationship. The court
noted the “detailed reasoning” provided by the
trial judge in support of her determination that
the relationship between A.H. and the child,
“however salutary to the child, ‘did not rise to
that of a parental relationship,’” and refused to
disturb her findings.
The court also rejected A.H.’s argument that
the trial judge had used a “rudimentary quantitative analysis” to conclude that, because A.H.
worked outside the home and provided primarily financial support (which allowed M.P. to stay
at home and serve as the primary caretaker),
she could not qualify as a de facto parent. Contrary to A.H.’s characterization of the trial
court’s analysis, the court emphasized that the
trial court had considered a number of qualitative factors, such as who was the primary decisionmaker with respect to the child, rather than
focusing simply on the quantity of time that
each women spent in a caretaking role. Accordingly, the court refused to set aside the trial
court’s findings as an abuse of discretion.
The court also ruled that A.H. could not secure parental rights by relying on estoppel
theories. First, with respect to the argument that
January 2007
A.H. was a “parent by estoppel,” the court
noted that the “parent by estoppel” principle,
by which a parent is treated as the equivalent of
a legal parent, is “a most dramatic intrusion
into the rights of fit parents to care for their
child as they see fit,” citing Troxel v. Granville,
530 U.S. 59 (2005). Because it is such a “dramatic intrusion,” the court noted that the ALI
Principles contemplate parenthood by estoppel
only in jurisdictions where adoption is not legally available or possible, which was clearly
not the case in Massachusetts. Reiterating its
decision in T.F., the court emphasized that there
is no such thing as “parenthood by contract” in
Massachusetts, and refused to adopt the parent
by estoppel theory to support A.H.’s claim to
parental rights.
Finally, with respect to A.H.’s claim of judicial estoppel, the court found that M.P.’s early
efforts to secure child support from A.H., and
the statement of the Appeals Court justice that
the parties “appear to agree that [A.H.] qualifies as a de facto parent” did not estop M.P. from
contesting A.H.’s parental rights. The court
noted that judicial estoppel only prevents a
party from asserting a position in one litigation
and then asserting the opposite position in different litigation. It did not, in the court’s view,
prevent parties from changing their strategy
within one case, where facts and the law inevi-
Lesbian/Gay Law Notes
tably develop and change over the course of the
proceeding. The court agreed with the trial
judge that, “in an evolving area of law, where
the significance and legal effect of de facto parentage ‘remain subject to both debate and further consideration by our higher courts,’ legal
conclusions concerning de facto parentage are
for a judge to determine based on the evidence,” rather than on estoppel theories. Furthermore, the court commented, while estoppel
theories are perhaps appropriate in the context
of commercial transactions, they are “an unwieldly and inappropriate tool by which a judge
may probe into the intimate, private realm of
family life.” For all of these reasons, the court
affirmed the trial court’s judgment.
Looking at this case in context, the fact that
non-biological parents in Massachusetts (and a
growing number of other states) can adopt their
partner’s child (an option that A.H. eschewed)
means that situations like these can be avoided
in many cases. However, the ALI’s emphasis on
caretaking, as reflect in this and many other de
facto parenting cases from other states, only
highlights how difficult it is for non-biological
parents in the breadwinner role to qualify for
parental rights, even though they are taking on
the same role that many fathers assume in heterosexual households. GLAD (Gay & Lesbian
Advocates & Defenders) in Boston was among
the legal organizations that participated in this
case as amici. Sharon McGowan
LESBIAN/GAY LEGAL NEWS
New Jersey Enacts Civil Unions for Same-Sex
Partners
Responding to the New Jersey Supreme Court’s
mandate in Lewis v. Harris, 908 A.2d 196 (N.J.
2006), the New Jersey legislature enacted A.B.
3787, the Civil Union Bill, which was signed
into law by Governor Jon Corzine on December
21.
In Lewis, the court ruled that equality requirements of the state constitution mandated
that committed same-sex couples be afforded
the same legal rights, benefits and responsibilities as were made available to opposite-sex
couples who sought to marry. As to this much
the court was unanimous. However, the court
divided 4–3 over the remedy, the majority ruling that the legislature was the proper body to
determine how such rights were to be made
available, opining that simply opening up marriage to same-sex couples was not necessarily
the only constitutional way to do it, and suggesting that a law establishing civil unions or the
like that afforded to same-sex couples equal legal treatment under state law would be presumptively constitutional.
Legislative leaders and Governor Corzine,
reflecting public opinion polling in the state
that opposed same-sex marriage but supported
civil unions, immediately opted for the civil union route, although the governor indicated that
he would sign a marriage bill if the legislature
passed it. The legislature was not willing to go
out on such a limb, however. Ironically, at committee hearings on the bill, which was leadsponsored by Assemblymember Wilfredo
Caraballo, witnesses were unanimously opposed to the legislation. The gay rights proponents wanted marriage. The gay rights opponents wanted a constitutional amendment
overruling the court’s decision. None of the witnesses supported the proposed legislation.
Nonetheless, it was passed out of committee
and adopted by comfortable margins in both
houses, after some amendments were made to
alter some provisions that had been criticized
as particularly offensive by the gay rights proponents.
The law’s preamble recites the state’s interest in reinforcing the “stable and durable relationships” of same-sex couples and “eliminating obstacles and hardships these couples may
face,” asserting that for these reasons the existing Domestic Partnership Act “should be expanded by the legal recognition of civil unions
between same-sex couples in order to provide
these couples with all the rights and benefits
that married heterosexual couples enjoy.” The
preamble states that the legislature’s intent is to
comply with the Harris ruling.
Section 2 of the Act provides: “Parties to a
civil union shall receive the same benefits and
protections and be subject to the same responsibilities as spouses in a marriage.” Civil unions are limited to same-sex couples, both of
whose members are age 18 or older (unless special parental or judicial consent has been obtained in the case of younger teenagers), and
who are not already a party to another civil union, domestic partnership or marriage in New
Jersey. There is no residency requirement. The
rules on incestuous marriage are adapted to apply to civil unions, prohibiting their formation
between siblings and other close family members. Section 4, reiterating and expanding on
Section 2, provides: “Civil union couples shall
have all of the same benefits, protections and
responsibilities under law, whether they derive
from statute, administrative or court rule, public policy, common law or any other source of
civil law, as are granted to spouses in a marriage.” Procedures for entering and exiting civil
unions are detailed as parallel to those for marriage, and civil union partners are treated as
having the same rights as marital spouses with
respect to parenting and children.
Lesbian/Gay Law Notes
The bulk of the statute is devoted to amendment specific provisions of state law to bring
them into accord with the new rights afforded to
civil union partners, but states prominently in
Section 5 that the statutory list of “legal benefits, protections and resopnsibilities of spouses
shall apply in like manner to civil union couples, but shall not be construed to be an exclusive list of such benefits, protections and responsibilities.”
The statute also establishes the New Jersey
Civil Union Review Commission, which is
charged with reviewing the operation of the law
and documenting any ways in which it may fall
short in affording equal rights to same-sex couples. The commission has an initial life of three
years and is mandated to make semi-annual reports. Among its other tasks, it is to recommend
whether the Domestic Partnership Act should
be repealed in light of the enactment of the Civil
Union Act.
The statute provides that a “civil union relationship” contracted in other jurisdictions will
be recognized as having the same status in New
Jersey. It is unclear from this wording whether
this means New Jersey would recognize California domestic partnerships, which for all
practical purposes are equivalent, or just Vermont and Connecticut civil unions. This also
leaves unclear whether a same-sex marriage
from Canada, Massachusetts, the Netherlands,
Belgium, Spain, or South Africa would automatically be treated as a civil union in New Jersey, although one suspects a civil partnership
from the U.K. would probably be treated as a
civil union there, since they appear to be essentially alike. Less clear would be the New Jersey
treatment of registered partnerships from the
Scandinavian countries, Germany, or France,
for example. In other words, on the recognition
front there is likely to be some uncertainty in
the short term until things can be sorted out.
Controversy mounted as several mayors in
smaller New Jersey communities proclaimed
that they were conscientious objectors who
would not perform civil union ceremonies, and
the state’s attorney general, Stuart Rabner, said
that such refusals might violate the state’s human rights law, subjecting to the mayors to
fines. Some mayors have noted that although
the law authorizes them to perform marriages
and now civil unions, they are not obligated to
do so provided they don’t discriminate. So some
mayors may just get out of the marriageperforming business in order to avoid being put
to the test.
Groups supporting same-sex marriage generally saluted the enactment of this law after the
fact, while insisting that same-sex marriage remains the goal for the gay rights movement in
New Jersey, and that it will continue to be pursued legislatively. Some legislative supporters
of the Civil Union Act opined that it would be
transformed or expanded into a full marriage
January 2007
act in the not-too-distant future, noting that in
Massachusetts public opinion has grown to
support same-sex marriage and that the trend
seems to be moving in that direction over time.
A.S.L.
Alaska Supreme Court Orders Compliance With
Benefits Ruling
Rejecting a request by the state legislature (in
an amicus filing) that the deadline for compliance with its ruling in Alaska Civil Liberties Union v. State of Alaska, 122 P.3d 781 (Alaska
2005) be extended, the Alaska Supreme Court
unanimously ruled on December 19 that the
regulations promulgated by the Commissioner
of Administration adopting eligibility standards for same-sex partners of state employees
seeking benefits coverage were presumptively
constitutional and should go into effect. State of
Alaska v. Alaska Civil Liberties Union, No.
S–12480. Governor Sarah Palin stated that the
state will abide by the order, but she signed into
law a bill passed by the legislature to put a
measure on the ballot asking voters whether the
legislature should approve a constitutional
amendment to prohibit employee benefits for
non-marital partners of state employees. Associated Press, Dec. 20.
On September 1, 2006, Anchorage Superior
Court Judge Stephanie Joannides issued an order to the Commissioner to rethink the regulations, accepting an argument by the Alaska
Civil Liberties Union that the regulations imposed unduly onerous qualification requirements, in violation of the state supreme court’s
equal protection holding. The December 19 supreme court ruling stated that it was improper
for Judge Joannides to have rendered this ruling, because the case was not remanded to her
for the purpose of substantive constitutional review of the implementation of the supreme
court’s order.
Said the supreme court, per curiam, “The
mandate of our opinion thus broadly directed
the state to take appropriate action to confer
such benefits and had no occasion to consider
what form a regime providing such benefits
could permissibly take. When disputes concerning the deadline for compliance later
arose, we issued our June 1, 2006, order remanding the case to the superior court with directions to ensure that the state began offering
benefits covered by our decision no later than
January 1, 2007. Although our June 1, 2006 order might have been phrased more clearly, it
was not meant to empower the superior court to
subject the individual details of the state’s implementation plan to constitutional scrutiny.”
The court insisted that any such review during the remedial stage of the litigation would
unduly delay implementation of the benefits to
which same-sex partners are entitled. Rather,
said the court, the regulations “must be ac-
3
corded the usual presumption of constitutionality and must be reviewed under the test that applies when a regulation is challenged on
non-constitutional grounds: as long as the regulations attempt to offer the benefits mandated
by our opinion in a rational and non-arbitrary
manner, they must be approved. Any new constitutional questions arising from the details of
the implementing regulations must be asserted
by future challenge in separate proceedings.”
Settling another point that had been raised,
after asserting that the regulations adopted by
the Commissioner “are valid,” the court endorsed the state government’s position that the
Commissioner had authority to adopt the regulations, so that further implementing legislation
was not necessary for them to take effect. Thus,
the regulations were deemed to have become
effective 30 days after adoption in the case of
the medical benefits and 30 days after being
lodged for filing with the lieutenant governor’s
office in the case of the retirement systems
benefits.
Now the Alaska Civil Liberties Union will
have to decide whether to file a new lawsuit
challenging the regulations on the grounds that
had already won agreement from Judge Joannides. A.S.L.
Massachusetts High Court Says Legislature Has
Constitutional Duty to Act on Marriage
Amendment, But Court Lacks Power to Order It to
Do So
The Massaachusetts Supreme Judicial Court
announced by unanimous vote on December 27
in Doyle v. Secretary of the Commonwealth,
2006 WL 3771992, that the two houses of the
state legislature, meeting together as a Constitutional Convention, have a “constitutional
duty to vote, by the yeas and nays, on the merits
of all pending initiative amendments before recessing on January 2, 2007.” This includes the
proposal to amend the state constitution to
overrule the Court’s 2003 same-sex marriage
decision, Goodridge. However, concluded the
Court, there is no remedy available to the plaintiffs, a group of citizens who support the marriage amendment and claim their constitutional
rights are being violated by the failure to put it
on the ballot.
Writing for the unanimous court, Justice
John M. Greaney noted that the Constitutional
Convention for the 2005–2006 session of the
legislature has met three times since the Secretary of State certified that the proposed amendment received enough valid signatures (3 percent of the votes cast in the last election for
governor), and each time, most recently on November 9, the group has adjourned without voting on the merits of the amendment. Under the
state constitution, if at least a quarter of the legislators support the amendment, it is to be
placed before the Constitutional Convention of
4
the 2007–2008 session. If identical language is
approved by at least a quarter of the legislators
on that second vote, the measure would be
placed on the next following general election
ballot.
Knowing that more than a quarter of the legislators support the amendment, the legislative
leaders, who oppose it, have managed to put off
a vote on the merits. At the November 9 session,
a roll call vote was taken to adjourn the session
to January 2, the last date of this legislature, in
the afternoon, with the expectation that a brief
session would be held and again vote to adjourn, thus effectively killing the measure.
The Court found that this procedure directly
violated the constitutional method for dealing
with voter-initiated amendments, which it
quoted directly from the constitution, and refuted the idea, advanced by some, that the constitution does not mandate a vote but merely requires that if a vote is taken it be a recorded
roll-call vote. If any doubt were left by the constitutional language, which Justice Greaney
characterized as “clear,” “the records of the
drafters’ debates indicate that they did not intend a simple majority of the joint session to
have the power effectively to block progress of
an initiative,” said Greaney, quoting from statements in the published history of the constitution.
But, said Greaney, the Court was powerless
to act. It could not order the legislature to take a
vote, but could do no more than make clear, if
there were any doubts, that there is a duty to
take a vote on the amendment. The only remedy, said the Court, would be to take the matter
to the voters the next time the incumbent legislature was up for election (in 2008), and to
campaign against incumbents who voted to adjourn rather than vote on the proposal.
Thus, the future of right to marry in Massachusetts may now hang on whether enough legislators will feel obligated by the Court’s decision to force a vote on January 2 in the brief time
remaining before this session of the legislature
expires, an outcome that should be known before most readers of this newsletter have received it. A.S.L.
Gay Venezuelan Loses Asylum Appeal
The U.S. Court of Appeals for the 3rd Circuit
ruled against a gay Venezuelan’s asylum appeal
in Duarte v. Attorney General, 2006 WL
3724419 (Dec. 19) (designated nonprecedential and not to be published in F.3d).
The unanimous court decision upheld a ruling
by Immigration Judge Eugene Pugliese that
Daniel Antonio Duarte lacked credibility when
he testified about his own suffering at the hands
of Venezuelan police and the murder of his
former partner. The Board of Immigration Appeals had rubber-stamped the IJ decision.
January 2007
Born in the early 1970s, Duarte reported first
encountering problems with the police when he
and a friend were leaving a gay bar in 1990. According to the opinion for the court by Circuit
Judge Franklin Van Antwerpen, Duarte
claimed that after the police officers made disparaging comments about homosexuals, they
“drove Duarte and his friend around the city,
stole their money and valuables, and left them
stranded on the highway.”
Five years later, according to Duarte, he and
his boyfriend Duarte da Silva were picked up in
front of Duarte’s home by two police officers
who assaulted and robbed them and then took
them to the police station, where Duarte was
put into a cell overnight with three inmates who
punched and raped him, while his boyfriend
was forced at gunpoint to perform oral sex on
the police officers. Duarte went to a hospital to
treat his injuries, and provided documentation
to the Immigration Judge about his hospital stay
and about the complaint he had filed against
the police officers. Duarte testified about two
subsequent extortion attempts against him by
the police, as well as threatening calls he received at work.
Duarte claimed that his friend da Silva was
found dead in his car in March 1996 from a
weapons injury to his liver. Duarte suspected
the police had something to do with it. Duarte
submitted a transcription of da Silva’s death
certificate that had been made by Duarte’s lawyer in Venezuela in support of this claim. He
fled to the U.S. soon after this event, but only
stayed five months, returning to Venezuela in
September 1996. Explaining his return to
Venezuela, Duarte testified, “I was very depressed. I was very down. I felt very alone. I had
no social life. I had no support. I had no family
members nearby... I could not find a way to deal
with this situation. Back then, I was only 23,
24.”
Duarte claimed that shortly after returning to
Venezuela, he received a phone call at work
from one of the police officers who had assaulted him, threatening to find him no matter
where he hid, so Duarte returned to the U.S. and
stayed here for five years. During that time, he
married a U.S. citizen solely to try to get a green
card, but that evidently did not work out. When
he decided to apply for asylum, he realized
there was a one-year deadline, so he made a
quick trip to Venezuela, staying in a friend’s
apartment the entire time to avoid detection,
and then had his passport altered by bribing an
immigration official at the airport in Venezuela
to make it look like he had been living there
since 1996. He returned to the U.S. in November 2002, applying for asylum in April 2003.
Judge Pugliese’s response to this tale was
general disbelief, abetted by a letter from the
U.S. Embassy in Caracas claiming that some of
Duarte’s documents were forgeries. Pugliese
decided that Duarte lacked credibility for six
Lesbian/Gay Law Notes
reasons: the sham marriage to get a green card,
altering his passport to regain entry to the U.S.
in 2002, leaving the U.S. that year for the sole
purpose of restarting his deadline to apply for
asylum, the consular letter from Caracas, evidence contradicting his story about the death of
his boyfriend, and the fact of his two returns, in
1996 and 2002, to Venezuela, which Pugliese
found to undermine his testimony that he
feared persecution if he returned again to Venezuela. Rejecting Duarte’s evidence about difficulties gays face in Venezuela, Pugliese
pointed to Internet listings found by the State
Department of gay-friendly tourist facilities in
the country.
Judge Van Antwerpen found that some of the
grounds upon which Pugliese relied to deny the
asylum claim were invalid. Perhaps most importantly, Van Antwerpen cited prior court decisions holding that immigration judges should
not rely upon consular letters from the State Department that were based on hearsay and
speculation without revealing the basis for their
assertions. (Evidently the State Department
has its own credibility problems in these asylum cases.)
However, Van Antwerpen found two firm
bases supporting the adverse credibility finding. One was contradictory evidence undermining Duarte’s story about the death of his
boyfriend, since it seems the State Department
unearthed evidence that somebody of the same
name was given a nonimmigrant visa to the U.S.
in October 1997, about a year and a half after
Duarte claims he was murdered. “This evidence directly contradicts Duarte’s testimony,”
the court pointed out. “Furthermore, this inconsistency goes to the heart of Duarte’s claim because it calls into question his testimony regarding his relationship with da Silva and the
facts of the December 4, 1995, incident involving Duarte and da Silva.”
Furthermore, the court found that Duarte’s
brief return to Venezuela in 1996 also undermined the credibility of his testimony. The
court found Duarte’s explanation of why he returned “difficult to reconcile with the brutality
of the incident of persecution he alleges he suffered in December 1995 and the murder of his
boyfriend in March 1996. We cannot conclude
that any reasonable adjudicator would be compelled to find Duarte credible despite his return
to Venezuela shortly after these incidents.”
Thus, despite the defects in Pugliese’s decision, the court found sufficient grounds to uphold it and reject Duarte’s claim of past persecution. As to his claim of fearing future
persecution if he were to return to Venezuela,
Judge Pugliese found lacking persuasive evidence that “persecution or ill treatment of homosexuals in Venezuela is a significant social
problem.” The court observed that even if it
agreed with Duarte that his background information on Venezuela showed that things were
Lesbian/Gay Law Notes
bad for gay people there, nonetheless his lack of
credibility undercut his effort to meet the requirement of showing that he personally had a
well-founded fear of persecution.
Ironically, however, in an asylum case decided in the federal appeals court in New York
earlier in 2006, that court concluded that an
asylum applicant had adequately demonstrated a pattern of persecution of gay people in
Venezuela and overturned a denial of asylum by
a different Immigration Judge. Unfortunately,
since few of these asylum rulings are officially
published as precedents, each asylum applicant has to reinvent the wheel when it comes to
establishing the objective dangers of returning
to his own country.
Although Duarte could try to petition the U.S.
Supreme Court to review his case, that court
has never granted review in a gay asylum case
so it is highly likely that this decision is final.
A.S.L.
Sex Club Owner’s Challenge to Phoenix Law
Rejected on Standing Grounds
The U.S. Court of Appeals for the 9th Circuit
has rejected an attempt by the corporate owner
of a gay sex club in Phoenix, Arizona, to assert
the privacy rights of its patrons in an effort to invalidate a city law that may be used to shut
down the club. Ruling on December 22 in Fleck
and Associates v. Phoenix, 2006 WL 3755201,
court held that corporations do not themselves
have privacy rights, and that the club cannot
bring suit to vindicate the privacy rights of its
“members.”
In 1998, Phoenix enacted an ordinance banning “live sex act businesses,” which it defined
as those “in which one or more persons may
view, or may participate in, a live sex act for a
consideration.” This presents a problem for
Fleck & Associates, a corporation that owns
Flex, described by Judge Dorothy Nelson in the
court’s opinion as “a gay men’s social club” in
Phoenix that “limits access to adults who have
purchased ‘memberships’ on a yearly, semiyearly, or daily basis.”
“Many people enter the club by purchasing
daily passes,” wrote Nelson. “Customers can
rent private dressing rooms for an additional
fee. Sexual activities take place in the dressing
rooms and in other areas of the club.”
In January 2004, city police officers entered
the club, searched the office, questioned some
employees and detained them overnight. Fleck
claims to have been threatened with similar actions by the police. In June 2004, Fleck filed its
lawsuit, seeking a declaration from the federal
district court that the city ordinance, cited by
the police, is unconstitutional.
Fleck based his claim on Lawrence v. Texas,
539 U.S. 558 (2003), which struck down a
Texas statute making gay sex a crime. The Supreme Court ruled that gay people have a right
January 2007
to engage in consensual sex protected as a liberty interest under the Due Process Clause of
the 14th Amendment of the Constitution.
District Judge David G. Campbell found that
Fleck, as a corporation, did not have any standing to claim a right of privacy, as this is a right
that is only conferred upon individuals. Fleck
also sought to protect the privacy rights of its
members, but Judge Campbell held that it
could not do so. Despite this ruling on standing,
Campbell went on to opine that “the privacy
rights of Fleck’s members do not exist in
Fleck’s public social club.” Fleck appealed.
The appeals court agreed with Campbell’s
ruling that the corporation enjoys no privacy
rights. Nelson wrote that “a corporation is not
entitled to ‘purely personal guarantees’ those
rights that have historically been granted to individuals. An analysis of the ‘nature, history,
and purpose’ of the constitutional guarantee at
issue demonstrates that it is ‘purely personal’
and therefore incapable of being claimed by a
corporation.” Nelson pointed out that the Lawrence decision, upon which Fleck relied, specifically held that the due process clause requires “respect for the petitioners’ private lives
such that the State cannot demean their existence or control their destiny by making their
private sexual conduct a crime.”
The court also agreed with Campbell that
Fleck could not assert the privacy rights of the
members of the Flex social club. Wrote Nelson,
“Fleck claims that the ‘inherently personal
right of homosexual sexual activity is central to
the function and operation of its facility,’ and
that this somehow means Fleck has a liberty interest protected by the due process clause to
run a ‘facility devoted to providing a safe location for homosexuals to express their sexuality.’
Essentially Fleck argues that it has a right to facilitate the exercise of the admittedly personal
‘right of homosexual sexual activity.’”
This claim, however, failed because the court
refused to recognize that those who purchased
“memberships” in Flex were actually members
of a representative organization for purposes of
federal court standing. They were just “customers,” according to Nelson, whose “membership” did not constitute an expressive association for which standing may be recognized. The
ACLU or the National Rifle Association, for example, are entitled to sue on behalf of their
members to vindicate the right of free speech or
the right to bear arms, but Fleck, a commercial
enterprise, is not entitled to sue on behalf of its
members’ interests in having a safe place to interact with sexual partners.
However, the court did disagree with Judge
Campbell on one point. Having found that
Fleck did not have standing to assert its customers’ privacy rights, the court concluded that
Campbell lacked jurisdiction to rule on the
merits of the customers’ claims to privacy in
Fleck’s establishment. Because nobody with
5
standing to sue had placed that right in question before him, Judge Campbell should have
dismissed the claim for lack of subject matter
jurisdiction rather than ruling upon it.
After all, the real parties in interest were not
represented in court. If, in a subsequent police
raid, individual members were arrested for
having sex in Flex, they should be able to assert
their personal privacy rights in subsequent litigation to contest their arrests. A.S.L.
West Virginia City May Be Liable for Death of
Perceived-HIV-Positive Gay Man
A federal judge has ruled that a West Virginia
city may be liable for the wrongful death of a gay
man who was allegedly denied emergency
medical assistance by the chief of police, who
wrongly assumed that the man was HIVpositive. Ruling December 22 in Green v. City
of Welch, 2006 WL 3791365 (S.D.W.Va.), U.S.
District Judge David A. Faber found that Helen
Green, representing the estate of her deceased
son Claude Green, Jr., could bring both a federal civil rights suit and a claim under the
Americans With Disabilities Act against both
the city of Welch and Police Chief Robert K.
Bowman. The ACLU represents Green in the
litigation.
Claude Green was driving his truck in Welch
on June 21, 2005, with Billy Snead as a passenger. Green suddenly suffered heart failure.
Snead was able to guide the truck to a stop and
administer CPR, reviving Green who gasped
for breath. While Snead continued to minister
to Green, Chief Bowman arrived at the scene
and physically pulled Snead away from Green,
exclaiming that Green was HIV-positive.
Bowman called 911 for an ambulance and
blocked Snead from attempting to resume attending to Green. When the ambulance arrived, Bowman told the emergency workers that
Green was HIV-positive, which they recorded,
but it appears that they attempted CPR while
driving him to the hospital. Bowman also went
to the hospital and informed the emergency
staff there that Green was HIV-positive. Green
died shortly after reaching the hospital. He
died from heart disease and was not HIVpositive.
According to the complaint filed by Helen
Green, Chief Bowman assumed that Green was
HIV-positive because he knew Green had a
sexual relationship with another man.
Green filed wrongful death claims on behalf
of the estate against the city and Bowman, asserting violation of Green’s right to due process
and equal protection of the law in violation of
the 14th Amendment, and also wrongful denial
of services in violation of the Americans With
Disabilities Act and the West Virginia Human
Rights Act. She also asserted a claim under
West Virginia’s Wrongful Death Act. The defen-
6
dants moved to dismiss all the claims except
the state wrongful death claim.
The basis for moving to dismiss all the federal and civil rights claims was that these were
the kinds of personal injury claims that normally do not survive the death of an accident
victim, and that only a state statutory wrongful
death claim should be allowed to proceed, providing compensation for survivors. After a
lengthy and complex analysis, complicated because the U.S. Supreme Court has not definitely
resolved all the relevant issues, Judge Faber
concluded that due process and equal protection claims arising from the death of somebody
due to violation of their civil rights by a state actor could be brought under the general federal
civil rights statute, and furthermore that the
Americans With Disabilities Act claim also
survived, to the extent it arose from wrongful
death due to denial of services to a person with
a disability. In this case, Green alleged that her
son qualified as a person with a disability because he was wrongly perceived by Chief Bowman to be HIV-positive.
In the course of his opinion, Judge Faber
noted that there was no indication anywhere in
the papers filed with the court that administering CPR to an HIV-positive person would present any special risk of transmission, casting
doubt on what would undoubtedly be the defendants’ main theory of justification for Chief
Bowman’s actions.
Many issues remain to be sorted out in this
litigation, but at the initial stage, Judge Faber’s
ruling permits the case to go forward on the basis that the estate may have a valid federal civil
rights claim against the city and Chief Bowman
for the way in which Green was treated on the
day of his fatal heart attack. A.S.L.
S.F. Board’s Adoption Resolution Did Not Violate
First Amendment
The San Francisco Board of Supervisors did not
violate the Establishment Clause of the First
Amendment when it passed a resolution concerning the Catholic Church’s stance on gay
adoption practices in the city, a U.S. District
Judge Marilyn Hall Patel has ruled. Catholic
League for Religious and Civil Rights v. City
and County of San Francisco, 2006 WL
3462879 (N.D.Cal. Nov. 30, 2006).
In 2003, the Congregation for the Doctrine of
the Faith, an organization within the Catholic
Church whose mission is to “promote and safeguard the doctrine on the faith and morals
throughout the Catholic world” (and led at the
time by Cardinal Joseph Ratzinger, the current
Pope), issued a document outlining the “moral
duty of Catholics to oppose homosexual unions
and policies that allow homosexual partners to
adopt children.” In March 2006, the head of
the Congregation of the Doctrine of the Faith,
Cardinal William Joseph Levada who happens
January 2007
to be the former Archbishop of San Francisco
issued a directive to the Catholic Charities of
the San Francisco Archdiocese instructing it to
stop placing children in need of adoption with
homosexual couples.
Later that month, the San Francisco Board of
Supervisors unanimously adopted a resolution
urging Cardinal Levada to withdraw the “discriminatory and defamatory” directive. The
resolution accused the Vatican of meddling
with the city’s customs and traditions. It called
Cardinal Levada’s and the Vatican’s statements
“unacceptable” to the people of San Francisco,
“hateful and discriminatory,” and “insulting
and callous.” It stated that same-sex couples
are as qualified as heterosexual couples to be
parents. It called Cardinal Levada a “decidedly
unqualified representative” of the city and people of San Francisco and their values. It urged
the archbishop and the Catholic Charities to
“defy all discriminatory directives” of Cardinal
Levada and urged the Cardinal to withdraw the
directive.
In response, the Catholic League for Religious and Civil Rights, a civil rights organization, and two Catholic residents of the city sued
the city and county, alleging that the resolution
violated the Establishment Clause of the First
Amendment and asking the court to permanently enjoin the city and county from criticizing and attacking religion and religious beliefs.
The city and county moved to dismiss.
The court used the test articulated by the U.S.
Supreme Court in Lemon v. Kurtzman, 403 U.S.
602 (1971), and applied by the Ninth Circuit in
Vernon v. City of Los Angeles, 27 F.3d 1385,
1396 (9th Cir. 1994). Under this test, an act
violates the Establishment Clause if it (1) has a
secular purpose, (2) has a primary effect which
advances or inhibits religion, or (3) fosters excessive state entanglement with religion.
For guidance, the court looked to a prior case
with a similar fact pattern, American Family Association, Inc. v. City and County of San Francisco, 277 F.3d. 1114 (9th Cir. 2002), in which
the 9th Circuit had applied Lemon and Vernon
and ruled that the San Francisco Board of Supervisors did not violate the Establishment
Clause when it passed resolutions in response
to an AFA campaign that denounced homosexuals and stated that they could change. The
9th Circuit had stated that there was a plausible
secular purpose, protecting gays and lesbians
from violence; that the primary effect was a denouncement of hate crimes, the promotion of
equality for gays and lesbians, and the discouragement of violence; and that there was no excessive entanglement with religion but merely
“political divisiveness.” The main difference
between the AFA case and the current case was
that in the interim, the U.S. Supreme Court had
created a standard less deferential to government action on the purpose prong, stating that
“the secular purpose required has to be genu-
Lesbian/Gay Law Notes
ine, not a sham, and not merely secondary to a
religious objective.” McCreary County, Kentucky v. Am. Civil Liberties Union of Kentucky,
545 U.S. 844 (2005).
Judge Patel first analyzed the purpose prong,
agreeing with the defendants’ assertion that the
purposes of the resolution were “to denounce
discrimination against same-sex couples, and
to try to preserve for San Francisco children the
opportunity to be placed for adoption with
qualified families without regard to sexual orientation.” The court found these to be evident
from the resolution’s text. It found the direct attacks on Cardinal Levada’s statements to be
secondary to the resolution’s main purpose. It
was not convinced by the plaintiffs’ assertions
of anti-Catholic bigotry, holding that the resolution’s criticism of Catholic leaders was presented in a secular context, that of same-sex
adoption. The resolution’s reference to the Vatican as a foreign country further convinced the
court that the resolution was criticizing a political entity rather than a religious organization.
The court did not give weight to the resolution’s
reference to the Congregation for the Doctrine
of the Faith as the former “Holy Office of the Inquisition,” because this did not change the
resolution’s primary purpose (and it also happened to be true).
Turning to the second prong, Judge Patel
ruled that the resolution did not have the primary effect of endorsing or disapproving of religion. For guidance, the court looked to Vernon,
in which the 9th Circuit had examined whether
the City violated the Establishment Clause in
investigating an assistant police chief’s religious views to determine whether those views
had led him to discriminate against gays and
lesbians in hiring and promotion and to consult
with religious elders on issues of public policy.
The court had ruled that while the direction of
the investigation might have showed disapproval of the officer’s religious beliefs, the primary effect was an investigation of any impermissible or illegal on-duty conduct by the
officer. The court also looked to the AFA case,
noting that the 9th Circuit in that case determined that the primary effect of the City’s resolution against the AFA was not a perceived hostility to religion but rather promotion of equality
for gays and discouragement of violence
against them.
The court noted that while the city’s resolution in the present case was explicitly hostile
compared to the prior cases, in which hostility
was implicit that hostility was not the primary
effect of the resolution. Instead, the primary effect was promoting same-sex adoption and nondiscrimination. Furthermore, the city did not
pass its resolution until the Congregation for
the Doctrine of the Faith issued its directive to
the San Francisco Archdiocese and thereby became involved in secular San Francisco policies. The court took this to mean that the city
Lesbian/Gay Law Notes
was not attempting to meddle in internal
church affairs.
The court found further evidence of the resolution’s primarily secular effects by putting it in
historical context, noting that the city had often
taken public, official positions in the past regarding gay rights and had criticized “a variety
of prominent individuals and organizations” for
their stances on homosexuality.
Finally, the court turned to the third prong
whether the action at issue constitutes excessive entanglement with religion. Citing Vernon,
Judge Patel noted that political entanglement
alone does not establishment a violation; the
entanglement is unconstitutional only if it is administrative, involving comprehensive, discriminating, and continuing state surveillance
of religion. The court found no facts in the
plaintiffs’ case showing such broad entanglement. The court contrasted the case with two
others. In Commack Self-Service Kosher Meats,
Inc. v. Weiss, 294 F.3d 415 (2d Cir. 2002), the
2nd Circuit struck down New York’s kosher
fraud laws, ruling that the laws required the
state to take sides in an internal religious debate and either interpret religious doctrine or
defer to the interpretations of religious officials
in reaching its official position. In Kedroff v. St.
Nicholas Cathedral of Russian Orthodox
Church in North America, 344 U.S. 94 (1952),
the Supreme Court ruled that internal church
governance and membership must be administered free of government control. In contrast to
these cases, the court stated that in the present
matter, the city’s involvement with the Archdiocese “began and ended when the Resolution
was adopted.” The court stated that “[a]ccepting plaintiffs’ position would mean that any
religiously-initiated debate even on a political
issue could not be joined by a publicly-elected
body’s response without resulting in excessive
entanglement.”
The court characterized the city’s resolution
as the exercise of free speech rights by duly
elected office holders rather than as excessive
entanglement of government with religion. Noting that the Congregation’s Considerations
document attempts to instruct Catholic politicians as to their duties in such a role, the court
stated: “The Congregation for the Doctrine of
the Faith provoked this debate, indeed may
have invited entanglement, by its Considerations statement. This court does not find that
our case law requires political bodies to remain
silent in the face of this provocation.” Jeff
Slutzky
Lesbian Jamaican Loses Appeal Under Torture
Convention
The U.S. Court of Appeals for the 3rd Circuit
has upheld a decision by the Board of Immigration Appeals that a lesbian from Jamaica had
failed to show that things are so bad for gay peo-
January 2007
ple there that she would face a risk of torture
were she to be returned to her homeland. Rejecting an appeal by Marcia Forrester, the court
ruled in Forrester v. Attorney General, 2006 WL
3789329 (Dec. 27) (not officially published),
that although there was evidence of intolerance
by the Jamaican public, there was no proof it
was abetted by the government.
Ms. Forrester attained legal immigrant status
in the United States in 1992, but was convicted
of being involved in drug dealing in 2003. The
Justice Department considers this to be the
kind of serious offense that justifies loss of legal
status and deportation under the immigration
laws, but such deportation can be blocked if an
individual can show that there is a serious risk
that they will be subjected to serious injury or
torture upon return to their home country due to
their membership in a particular social group.
Homosexuals are deemed to be a particular
social group for this purpose. Ms. Forrester attempted to show that anti-gay oppression in Jamaica is severe enough to justify blocking her
deportation on these grounds.
Surprisingly, given the general bias of the
Immigration Judges against such claims, she
was able to persuade IJ Walter Durling that she
should be allowed to remain in the U.S. because
of adverse conditions for gay people in Jamaica.
Wrote Circuit Judge Michael A. Chagares for
the court: “Forrester testified that she had returned to Jamaica four times since she entered
the United States. On one of these visits, Forrester took her then-significant other with her.
While she and her significant other were
parked near a beach, Forrester testified that locals threw stones at their car and chased them
away.”
“No such incidents occurred on any of Forrester’s other three visits to Jamaica. Forrester
also testified that in Jamaica, homosexuals are
‘killed, they are tortured, humiliated, they go to
prison.’ When asked if she knew of any other
homosexuals who had been victimized, Forrester testified that, when she was thirteen
years old, she knew an older man who was
beaten because he was suspected of engaging
in a homosexual relationship with another man.
When asked to describe her fear if she was removed to Jamaica, Forrester stated that she
feared being raped, victimized, and humiliated
by the locals and the police.”
Although State Department reports on Jamaica did not, according to the IJ, provide
much information concerning oppression of
gays in that country, the IJ said that he would
take “administrative notice of the intolerance of
Jamaican society towards homosexuals,” and
that he was “prepared to find a de facto government policy of permitting gay bashing throughout the country, with little or no legal consequences against either the citizens or officials,
particularly police officers.” Judge Durling
concluded that there was “’almost a virtual cer-
7
tainty’ that Forrester would suffer torture if she
were returned to Jamaica on account of her sexual orientation,” wrote Chagares. Durling
“went on to say that Forrester had shown government acquiescence, because ‘by virtue of
[Jamaican] laws, she would be criminalized if
she is encountered in any manner by police,
even as a victim, due to her sexual orientation.’” Based on these findings, Durling
granted relief under the Convention Against
Torture, by which the U.S. is obligated to provide refuge to individuals who face torture in
their homelands.
The government appealed this ruling, and
the Board of Immigration Appeals found that
Durling erred in concluding that the record
supported finding an official policy of anti-gay
oppression in Jamaica. Taking “administrative
notice,” perhaps on the basis of materials not in
the record, struck the BIA as unsatisfactory.
The 3rd Circuit panel agreed with the BIA.
“The BIA noted that notwithstanding Forrester’s obvious masculinity and lesbian status,
she failed to offer any evidence that she was tortured or arrested on any of her four visits to Jamaica,” wrote Judge Chagares. “The BIA also
noted that even assuming arguendo that Forrester would suffer some sort of harassment or
violence based on her sexual orientation that
would otherwise qualify her for CAT relief,
there was no evidence that the Jamaican government would acquiesce to such mistreatment. In light of the scant record evidence to
the contrary, we cannot say that the BIA’s determination in this regard was not supported by
substantial evidence.”
The court also rejected Forrester’s attempt to
challenge the way her drug conviction was factored into the ruling. She alleged that the immigration authorities violated due process by
treating all felony drug convictions as equally
bad for purposes of immigration law, contending that her involvement was “peripheral” and
the result of poverty, but the court would not entertain this argument seriously.
This case illustrates yet again the failings of
the existing adjudicatory system in dealing with
asylum and CAT claims on an individual basis.
Anybody who reads the gay press with regularity must be aware of the horrendous situation
for gay people in Jamaica, where law enforcement officials and many members of the public
are murderously hostile towards sexual minorities. But under our system, each individual
claimant is required to prove these facts in their
particular case, sometimes representing themselves in an unfamiliar system, at other times
using counsel who are unfamiliar with the resources available through the gay rights movement to obtain documentation that has been put
together on particular countries. The attempt
by an immigration judge in this case to make up
for the failings of the applicant’s proof by resort
to what is well-known among those concerned
8
in this field was countermanded by the BIA,
and upheld by the court in the usual summary
proceeding applying a lenient administrative
review standard, and so a lesbian may be sent
back to Jamaica to face what the judge found to
be almost certain oppression and possible loss
of her life. A.S.L.
Federal Court Rejects Suit Over Expulsion of Grad
Student Over Homophobia Allegations
When a university psychology program expels
an evangelical grad student who demonstrates
intolerance for gays and lesbians, does this action demonstrate religious intolerance, or
merely a well-founded concern about the student’s likely effectiveness as a future psychologist? And if faculty members label the student
“homophobic,” have they defamed him? These
are just two of the questions addressed by Judge
Donovan W. Frank of the U.S. District Court for
the District of Minnesota in Schumacher v. Argosy Education Group, Inc., 2006 WL 3511795
(Dec. 6, 2006). Ruling on the defendants’ motion for summary judgment, Judge Frank held
that none of the plaintiff’s claims for discrimination, breach of contract, arbitrary expulsion,
defamation, and violation of his constitutional
rights were viable and dismissed the complaint
in its entirety. The following description of the
facts is based on Judge Frank’s description in
his opinion.
The grad student whose expulsion led to the
lawsuit, Mark Schumacher, was described in
the opinion as “an evangelical Christian who,
based on his religious beliefs, believes that
gays and lesbians who engage in homosexual
activity are committing a sin.” From September
2002 until his dismissal in June 2004, he was a
student in the Doctor of Psychology program offered by Argosy University, a private institution
in the Twin Cities area of Minnesota.
While there was some dispute between the
parties as to the universe of behavioral problems upon which Argosy’s expulsion decision
was based, the incident that started the chain of
events leading to Schumacher’s dismissal was
clear. In spring of 2003, the chair of the program’s Diversity Committee posted a note on
the grad student lounge door, asking for suggestions for additional magazine subscriptions that
would “support greater visibility of diverse cultures.” The lounge already contained LGBTrelated reading material such as The Advocate.
On the note asking for suggestions, Schumacher wrote anonymously, although he later admitted to his handiwork and publicly apologized “cut back on gay mags please!”
Schumacher said that he was offended by some
of the advertisements in the gay publications
and considered them “mildly pornographic.”
Following the semester, the faculty conducted its annual review of students in the program, during which a number of faculty mem-
January 2007
bers expressed concerns about Schumacher,
complaining that he was “verbally impulsive”
and had made insensitive or denigrating remarks about gays and lesbians. One faculty
member, discussing the student lounge incident, incorrectly reported that Schumacher had
written “No more fag mags, please.” When, as a
result of this review, Schumacher was referred
to a Student Evaluation Committee (SEC) to assess these concerns, that same faculty member
wrote to the SEC’s chair and again misreported
Schumacher’s comments, adding his view that
it was a “homophobic remark.”
After the SEC’s initial recommendations
were overturned on internal appeal (in part, because of the miscommunication about what
Schumacher actually wrote), Schumacher had
a hearing before a second SEC in the new
school year. Based on the hearing and on comments from the faculty, the second SEC expressed concerns about the student’s progress
specifically, a primary concern over his “general lack of social awareness and sensitivity”
and a secondary concern over his failure to
properly deal with his ADHD problem and his
apparent issues with alcohol abuse. The SEC
directed Schumacher to develop a written plan
to address its concerns and to report back on his
progress. Schumacher did so only after repeated prompting, and even then as he admitted in a deposition he was not “absolutely genuine” but said whatever he thought would keep
him in the program.
Based on this perceived lack of progress on
its concerns (and also armed with the knowledge that Schumacher had failed to write the
required number of reports for his diagnostic
practicum) the SEC recommended his dismissal, which was upheld on internal appeal
within the university. Schumacher’s lawsuit followed, alleging religious discrimination in violation of the Minnesota Human Rights Act
(MHRA), breach of contract, arbitrary and bad
faith expulsion, defamation, and violation of his
constitutional rights, including free speech and
free exercise of religion.
Judge Frank quickly disposed of the constitutional claims for lack of state action, despite
Schumacher’s somewhat clever argument that
Argosy, although a private university, effectively served (through its ability to grant the
requisite degrees) as a “gatekeeper” for the
state-regulated profession of psychology. The
arbitrary expulsion and breach of contract
claims failed largely for the reason that the university had dismissed Schumacher for academic concerns the evidence was undisputed,
Judge Frank noted, that faculty members believed Schumacher’s “lack of social awareness” was a concern for a future psychologist
and “could adversely impact his ability to work
with diverse populations.” The court, Judge
Frank held, could not inject itself into such decisions.
Lesbian/Gay Law Notes
Turning to the MHRA, Schumacher claimed
that his dismissal reflected animosity toward
him on the part of the faculty based on his evangelical beliefs. Schumacher also charged that
the faculty exhibited a “pattern of hostility and
discrimination toward conservative, evangelical Christian students” and that he and his
evangelical Christian friends had been singled
out for poor treatment. Judge Frank dismissed
the relevance of any supposed culture of antiChristian discrimination, as it did not, he said,
bear on whether Schumacher had been discriminated against. And on that question,
Judge Frank held that there was no evidence
that religion played a part in Schumacher’s dismissal: even assuming that the dismissal was
based on the faculty’s belief that the student
was homophobic, Judge Frank wrote, “there is
no evidence that the faculty connected Schumacher’s views to his religion.” In other words,
even though Schumacher evidently considered
his anti-gay views to be part and parcel of his
evangelical Christian identity, there was no evidence that the faculty members saw such a necessary connection.
Finally, regarding the defamation claims
based both on the incorrect reporting of the
“gay mags” comment and the description of
Schumacher as “homophobic” Judge Frank
held that these comments were covered by a
qualified privilege, as they were made for a
proper purpose (i.e., a review of Schumacher’s
fitness as a student) and with probable cause.
In addition, as to the “homophobic” comment,
Judge Frank ruled that this word could not, as a
matter of law, be deemed actionable, because it
was “vague and imprecise” and was therefore
protected opinion despite Schumacher’s insistence that whether he was a homophobe was a
verifiable issue of fact. In light of his ruling,
Judge Frank did not need to provide an answer
to that question. Glenn C. Edwards
Michigan Appeals Court Rejects Collateral Attack
on Second-Parent Adoption
On December 7, the Michigan Court of Appeals
issued a ruling in Hansen v. McClellan, 2006
WL 3524059, finding that the Family Division
of the Washtenaw Circuit Court does have jurisdiction to approve second-parent adoptions.
The plaintiff was a woman who previously
was involved in a long term lesbian relationship. When the couple split, the plaintiff attempted to have the adoption of her children by
her former partner vacated on the ground that
the trial court lacked jurisdiction to terminate
her rights as sole parent and grant the joint
adoption. It is ironic that the couple fought to
have the adoption granted and now one party is
saying the court granted the adoption in error.
The court found that adoption decisions are
within the jurisdiction of the circuit court, and
that this case was more about standing than ju-
Lesbian/Gay Law Notes
risdiction. The court made a logical argument
when stating that many years after the adoption
is granted, one party should not be able to have
it undone by claiming the court did not have jurisdiction. The adoption ruling could not be attacked after the fact.
This is an important decision with a strong
dissent, which argued that Michigan’s adoption
laws do not allow unmarried couples to adopt.
The majority in their opinion seemed to skip
over the substance of the appeal and focus on
jurisdictional issues. Tara Scavo
N.Y. Appellate Division Affirms Same-Sex
Harassment Damages Against Landlord
The questions before the court in State Division
Of Human Rights v. Stoute, 2006 WL 3438528
(N.Y.App.Div. 2 Dept., Nov. 28), was whether
the New York State Human Rights Law forbids
same-sex sexual harassment in the context of
rental of housing accommodations, and, if so,
whether the law supported the award of
$10,000 compensatory damages. The Appellate Division rule that the Human Rights Law
does forbid such harassment, and upheld the
award.
Cheriko Boone had rented a two-bedroom
ground floor brownstone apartment from Nelson Stoute on Halsey Street in Brooklyn on a
one year lease. At first, Mr. Boone had a female
roommate, but after renewing the lease, he took
on a male roommate. Thereafter, according to
Boone, Stoute began to harass him, allegedly
because Stoute was interested in having a sexual relationship with him. Boone testified that
Stoute did this by making sexually offensive
comments and gestures to Boone and his
guests, spying on Boone through his front window as he was having sex, entering Boone’s
apartment without permission when neither he
nor his roommate were home, photographing
him and his friends as they arrived or left his
apartment, spying on him through the peephole
of his front door, voicing threats against Boone
to some of Boone’s friends and following Boone
as he came or left the apartment. Boone filed
police reports, sought mediation, and, eventually filed a complaint with the state Division of
Human Rights, alleging sexual harassment.
Stoute did not answer the complaint, and did
not appear for a scheduled preliminary conference in November 2002. At default hearing, the
ALJ made specific findings concerning efforts
made to advise Stoute of the scheduled hearing,
and then, based on testimony from Boone and
several friends, made findings of Stoute’s harassment of Boone. The ALJ ruled based on the
record presented that Stoute was harassing
Boone because he wanted to have a sexual relationship with him, and that, as a result, Stoute
discriminated against Boone in terms of his
housing accommodation because of Boone’s
sex. The ALJ recommended an award of $7,500
January 2007
in compensatory damages for mental anguish.
“Recommended findings of fact, decision,
opinion and order” was issued and served on
Stoute, who finally responded, filing timely exceptions.
Stoute denied any sexual interest in Boone.
He said that Boone was a “flagrant exhibitionist” who had sex in his bedroom that could be
observed from the street because he had inadequate curtains, and that he allowed guests to
roam freely in Stoute’s building. He said that he
confronted Boone because of complaints from
“concerned people” in the community, but that
Boone reacted with resentment and refused to
properly cover his windows. He said he participated in the mediation, but gave up when he
found that it wasn’t going anywhere. He said
that Boone was the “epitome of dishonesty,” labeling the allegations an attempt to extort
money.
The Commissioner of Human Rights concluded that the Human Rights Law “prohibits
the owner of a housing accommodation from
discriminating against any person, because of
sex, in the terms and conditions of the rental of
such accommodation and that same-sex sexual
harassment is actionable under the Human
Rights Law.” The Commissioner found that
Boone had demonstrated such harassment, that
it was “severe and pervasive” and that the conduct affected Boone’s ability to use and enjoy
his home. The Commissioner found that an
award of compensatory damages in the sum of
$10,000 would effectuate the purposes of the
Human Rights Law, and was “reasonably related” to Stoute’s discriminatory conduct. The
Division issued an order directing Stoute to
cease and desist from his conduct, and to pay
the $10,000 award with interest, within 30
days.
Stoute did not seek judicial review of the
award, and failed to pay it. The Division filed an
enforcement proceeding in Kings County Supreme Court, and the matter was transferred to
the Appellate Division, pursuant to state and
city statute.
The court, after citing N.Y. Executive Law §
296(5)(a)(2), which bans sex discrimination in
the rental or housing accommodations, asserted
that the statute is similar to Title VIII of the
Civil Rights Act of 1964, the federal Fair Housing Act — specifically, 42 USC § 3604(b),
which also prohibits sex discrimination in
rental housing. The court said that the federal
courts recognize two types of sexual discrimination under the Federal Housing Act. The first
is “quid pro quo discrimination,” “which arises
when the terms and conditions of a rental, including continued occupancy, rent and the furnishing of services such as repairs, are conditioned upon compliance with the landlord’s
sexual demands.” The second type arises when
the landlord subjects the tenant to a “sexually
hostile housing environment, by engaging in
9
severe and pervasive sexually offensive behavior.” The court stated that the Commission was
proceeding on the latter theory.
To prevail on this theory, the Commission had
to show: (1) the complainant is a member of a
protected group, (2) he or she was subjected to
unwelcome and extensive sexual harassment,
in the form of sexual advances, requests for sexual favors, and other verbal or physical conduct
of a sexual nature, which were not solicited or
desired by the complainant, and which were
viewed as undesirable or offensive, (3) such
harassment was based on the complainant’s
sex, (4) such harassment makes affected a
term, condition, or privilege of housing, and (5)
if vicarious liability is claimed, the complainant must show that the owner knew or should
have known about the harassment and failed to
remedy the situation promptly.
The court said that “Boone, as a male, ‘belongs to a protected group for purposes of a
claim based on gender discrimination,’” and
that the remaining elements were easily met,
save for vicarious liability, which was not relevant.
The court then considered the propriety of
the $10,000 compensatory award, taking some
care because it was a case of first impression
awarding damages under the state Human
Rights Law with regard to sexual harassment in
the housing context. The court found that the
award was reasonably related to the wrongdoing, was supported by substantial evidence,
and was similar to comparable awards for similar injuries. Because this was a case of first impression, the court deemed it appropriate to
look to federal sexual harassment cases, and to
state cases involving discrimination based on
race. Having done so, the award was affirmed.
On review of the entire decision, once can
see that this was a case that might possibly have
turned out differently had the landlord not defaulted. Steve Kolodny
Federal Civil Litigation Notes
6th Circuit — In Baugham v. Battered Women,
Inc., 2006 WL 3780295 (6th Cir., Dec. 20,
2006) (not officially published), a rare samesex hostile environment sexual harassment
case brought by female plaintiffs, the court of
appeals affirmed the district court’s decision to
grant summary judgment for the employer on
the substantive aspects of the case, but remanded for reconsideration on the dismissal of
a retaliation claim, because the Supreme
Court’s decision in Burlington N. & Santa Fe
Ry. Co. v. White, 126 S.Ct. 2405 (2006), issued
after the district court’s decision, changes the
standards for evaluation such claims. The 6th
Circuit opinion intimates no position on
whether Burlington would require a changed
result in the pending case, but says the District
Court should take the first crack at applying it.
10
The case involves a battered-women’s shelter
whose executive director, a lesbian, had an intimate relationship with a female employee
whom she had hired. The four women plaintiffs
found this employee to be vulgar and abusive in
her dealings with them, but the district court
(and court of appeals) found the allegations of
the complaint insufficient to meet the level of
severity required to make conditions in the
workplace actionable under Title VII, and also
found no basis to conclude that the plaintiff’s
suffered actionable discrimination on account
of their sex.
9th Circuit — In Barnes-Wallace v. City of
San Diego, 2006 WL 3704786 (Dec. 18,
2006), the 9th Circuit has asked the California
Supreme Court to answer a series of questions
of state law to help resolve a pending case in
which gay folks in San Diego are challenging
the city for allowing the local Boy Scouts organization to continue using city park facilities
at no or nominal rental charges not available to
other organizations. The certified questions ask
whether the city’s practices are consistent with
the No Preference Clause and the No Aid
Clause of the California Constitution, provisions intended to keep the state out of assisting
or entanglement with religious organizations.
One member of the panel dissented, finding
that the plaintiffs do not have standing to sue
the city over these park policies and so the case
should be dismissed.
Alabama — A federal jury in Decatur, Alabama, acquitted a gay man on charges of nonconsensual sexual touching in a federal wildlife
refuge early in December, according to an
amusing account of the trial in the Dec. 12 issue of the Decatur Daily. U.S. Refuge Officer
Greg Blanks, the complaining witnessed,
claimed he was on a detail patrolling Wheeler
Wildlife Refuge, when a man who had been
walking a dog lunged at him and grabbed his
crotch. The man, Anthony Gentry, and his lawyer, Bruce Gardner, pursued a very straightforward defense, conceding that Gentry is gay, and
explaining that he was there to walk his dog, not
out “cruising,” and that he touched Officer
Blanks accidently while struggling to control
his dog. The government brought in as a corroborating witness another man who was arrested in the same operation, who testified that
as a gay man he frequently cruised for sex at the
Wildlife Refuge, which was listed on the internet as a gay cruising area. Gardner successfully
persuaded the jury that his client was telling
the truth, and that Blanks, who has participated
in about fifteen such arrests during his brief assignment at the Refuge, was not credible.
Illinois — In Equal Employment Opportunity Commission v. Federal Express Corporation, 2006 WL 3512960 (C.D.Ill., Dec. 5,
2006) (not reported in F.Supp.2d), U.S. District
Judge Harold Baker denied the employer’s motion for summary judgment in a same-sex har-
January 2007
assment and retaliation case brought under Title VII. Two male employees complained that a
male co-worker sexually harassed them with
unwanted sexual comments and touching, and
that when one of them pursued the matter with
formal complaints, he was subjected to retaliatory harassment and discharge. The two victims
believe their harasser was gay — after all, he
came to work with a deck of playing cards picturing nude men, and couldn’t seem to keep his
hands off them. He denied being gay, although
admitted that he like to touch lots of his coworkers, both male and female. The woman
with supervisory authority over this crew denied having received repeated complaints prior
to the formal written one. There are numerous
factual disputes. Judge Baker concluded that
the EEOC’s allegations were sufficient to put
Title VII into play and to require litigation over
the factual disputes.
New York — U.S. District Judge Edward Korman (E.D.N.Y.), dismissed the complaint of a
self-described “non-gay male” who complained that he had been subjected to unlawful
housing discrimination by his landlord, a
woman who he claims “exhibited nothing but
bitterness toward [sic] him” upon learning that
he was not gay. Bankhead v. Maounis, 2006 WL
3479327 (Nov. 30, 2006)(not officially published). Evidently, William Bankhead, representing himself pro se, shares the widely held
belief among the uninformed general public
that federal civil rights law extends to all forms
of discrimination, including discrimination by
a landlord against a tenant on grounds of his
sexual orientation. Well, Mr. Bankhead, Congress has never banned any form of discrimination on the basis of sexual orientation, so Judge
Korman concluded he lacked any jurisdictions
over Mr. Bankhead’s complaint.
New York — U.S. District Judge Sandra Townes granted the employer’s motion to dismiss a
hostile environment sexual harassment case
brought by Wallace Borski, in Borski v. Staten
Island Rapid Transit, 2006 WL 3681142
(E.D.N.Y., Dec. 11, 2006), but refused to award
judgment on the associated retaliation claim
under Title VII. Borski had alleged that coworkers and a supervisor had engaged in behavior that created a sexually-charged and abusive atmosphere in the all-male workplace.
When he complained about the problem, he alleged, renewed and intensified harassment of a
sexual nature was directed at home, so severe
that he had to quit the job. Reviewing Borski’s
allegations, Judge Towne found that they failed
an important element of the test established by
the Supreme Court for hostile environment
same-sex harassment claims under Title VII:
there was no indication that the harassment was
directed against Borski because of his sex.
However, found Judge Townes, Borski’s retaliation allegations were sufficient to survive summary judgment because he could have had a
Lesbian/Gay Law Notes
good faith belief that his sexual harassment
charges were valid, and that is enough to trigger
protection from retaliation.
New York — Lambda Legal and the Sylvia
Rivera Law Project announced settlement of a
federal lawsuit that was filed early in January
against the New York Office of Children and
Family Services on behalf of Alyssa Rodriguez,
now 20, who was deprived of her hormone treatment and punished for her feminine presentation while resident at Red Hook Residential
Center and other New York facilities in
2002–2003. Rodriguez, a transgendered
youth, had been receiving hormone therapy
prior to entering these facilities and suffered a
difficult withdrawal from treatment as a result
of the denial of services. Under the settlement,
OCFS will being a process with Lambda and
Sylvia Rivera LP in reviewing its policies concerning transgender youth, and Rodriguez will
receive $25,000 compensation for her pain and
suffering. OCFS has changed its policies to
designate two facilities where transgender
youth will be placed and has begun educating
its staff on proper treatment of transgender
youth. Rodriguez v. Johnson (U.S.Dist.Ct.,
S.D.N.Y., settlement announced Dec. 20,
2006).
Texas — Although some courts have ruled
that at minimum transsexuals who are serving
prison sentences are entitled to continuation of
their hormone therapy if they were already receiving such therapy at the time of their incarceration, U.S. District Judge Marcia A. Crone
(E.D. Texas) has adopted a report by Magistrate
Earl Hines finding no 8th amendment violation
when a Texas prison refused to provide continued hormone therapy for a transsexual prisoner,
on the ground that the doctor who made the decision was exercising his judgment that in light
of the risks of side effects from long term hormone therapy, it was not an appropriate treatment for the prisoner in question. Scribner v.
Surapaneni, 2006 WL 3761976 (Dec. 21,
2006). Allyn Scribner alleges having been diagnosed as transsexual and receiving hormone
therapy prior to revocation of his parole and return to the prison system. He alleges as well
that he had been receiving such therapy during
prior incarceration. However, that was before
he ran into Dr. Surapaneni, who refused to
authorize continued treatment, finding that
Scribner was not in “acute distress” over gender identity and thus did not need hormone
treatment. The standard for finding an 8th
Amendment violation is deliberate indifference
to a serious health care issue of a prisoner.
Here, said the magistrate (now with the judge’s
endorsement), there was no deliberate indifference, merely a clash of viewpoints on appropriate treatment, and such disagreements do not
rise to the level of an 8th Amendment violation.
A.S.L.
Lesbian/Gay Law Notes
State Civil Litigation Notes
Maryland — The Maryland Court of Appeals,
the state’s highest court, heard oral argument
December 4 in the appeal from a ruling by Baltimore Circuit Judge M. Brooke Murdock in
Deane v. Conaway, 2006 WL 148145 (January
20, 2006) (not officially published in A.2d), in
which Judge Murdock found that same-sex
couples have a right to marry under the Maryland constitution. Surprisingly, the judges had
little to say during the argument, generally
leaving counsel for each side to make their
points without any substantial interruption, and
making it virtually impossible to read tealeaves about the potential outcome.
New Jersey — Can a New Jersey judge grant
a divorce to a same-sex couple married in Massachusetts? No, said N.J. Superior Court Judge
John L. Call Jr, dismissing a divorce petition
filed by Luna Foxx, who was married in Massachusetts in 2005 to Renee Fox. The Foxes are
also registered domestic partners in New Jersey. Luna claimed it was all a mix-up; she had
wanted to dissolve the domestic partnership
and claims that court staff mistakenly gave her
divorce forms to fill out. Ultimately, however,
Fox decided it was not worth fighting the dismissal. “Since we never lived in Massachusetts
and New Jersey doesn’t recognize the marriage,
it doesn’t matter if we’re not divorced here,” she
said. Associated Press, Dec. 20.
Oklahoma — The Oklahoma Supreme Court
is being asked to review a decision by Tulsa
Special District Judge Michael Zacharias to set
aside a divorce decree that he had initially
granted in the case of O’Darling v. O’Darling
after he discovered that the O’Darlings were a
same-sex lesbian couple who had been married
in Toronto in 2002. The divorce had not been
contested and Zacharias had routinely approved it, based on court papers that on the
cover page identified the parties by first initials
rather than their full names (which were disclosed inside). Apparently, given the “routine”
nature of the uncontested divorce proceeding,
the judge (or his clerk) had not bothered to look
past the cover page at the details of the proposed decree, which would have disclosed the
first names of the parties. Even then, perhaps,
the first names Cait and Stephanie would not
necessarily tipped them off that this was a
same-sex couple. In any event, Zacharias is
still ponder whether to reinstate his initial ruling, but no precedent will be created unless an
appellate court considers and rules on the issue
whether Oklahoma courts have jurisdiction to
dissolve lawfully contracted same-sex marriages from other jurisdictions at the behest of
Oklahoma residents. Oklahoma law does not
recognize same-sex marriages under a constitutional amendment enacted two years ago.
365Gay.com, Dec. 22.
January 2007
Rhode Island — Chief Family Court Judge
Jeremiah S. Jeremiah, Jr., has asked the Rhode
Island State Supreme Court to rule on whether
his court has jurisdiction to grant a divorce to a
same-sex couple married in Massachusetts but
now resident in Rhode Island. Margaret R.
Chambers and Cassandra B. Ormiston are believed to be the first same-sex couple legally
married in Massachusetts to have sought a divorce in another state. They married in Fall
River in 2004, later moved to Rhode Island.
Rhode Island — The state Commission for
Human Rights ruled that Blackstone Valley Security, a unit of Facility Services Management,
Inc., of Cranston, R.I., and its president, had
violated the state’s antip-discrimination law by
firing Amy Manfred, a lesbian employed as a
security guard, in retaliation for her complaints
about offensive and derogatory remarks by coworkers referring to her sexual orientation.
When she complained, according to her
charges, a supervisor told her that “it would be
easier to get rid of her” than to replace one of
the other guards who was verbally abusing her,
and there was no evidence that the company
took her complaint seriously. The commission
ordered the employer to cease and desist from
unlawful employment practices, to train its supervisors about compliance with civil rights
laws, and to offer Manfred another job. Providence Journal Bulletin, Dec. 7. A.S.L.
Criminal Litigation Notes
New Jersey — The N.J. Appellate Division affirmed a Family Court adjudication holding that
N.R., a teenage boy, was guilty of delinquency
for conduct that would be the crime of fourth
degree bias intimidation if committed by an
adult. State of New Jersey in the Interest of N.R.,
Juvenile, 2006 WL 3589784 (Dec. 12, 2006).
N.R. was accused of calling a woman a “fucking lesbian” while he was on his bicycle and
she and another woman were driving to the
public library, and then together with a large
group of other teenage boys calling the women
lesbians and saying threatening things to them
at the library and in the parking lot. The Appellate Division found that the record compiled
before the Family Court judge provided adequate support for the judge’s credibility determinations, and upheld the sentence of one year
probation, 35 hours of community service, a
written apology to the victim, avoiding any contact with the two women, submitting a DNA
sample and fingerprints, and pay “the requisite
assessments.” A.S.L.
Legislative Notes
California — LGBT issues were so prominent
in the legislature during 2006 that it was hard to
keep score of what was passed, what was
signed, and what was vetoed. But when the dust
11
settled, the following measures were enacted to
go into effect Jan. 1, 2007, according to Equality California’s year-end summary: Equal
Benefits in State Contracting (state contractors
must provide equal benefits for domestic partners of employees); State Income Tax Equity
Act (allowing domestic partners to file joint returns and have their earned income treated as
community property); Civil Rights Housing Act
of 2006 (includes ban on housing discrimination based on sexual orientation and gender
identity, among numerous other grounds);
Older Californians Equality and Protection Act
(bans discrimination against LGBT seniors in
social service programs); Nondiscrimination in
State Programs and Activities Act (prohibits
discrimination based on sexual orientation or
gender identity in state programs and activities); Equality in Prevention and Services for
Domestic Abuse Act (funding for education and
services for LGBT victims of domestic violence); Gwen Araujo Justice for Victims Act
(creates jury instructions and prosecutor training to limit the use of the gay panic defense in
criminal trials); Code of Fair Campaign Practices (creates a voluntary pledge for candidates
to sign excluding appeals to homophobic prejudice from political campaigns). Whew! Good
year for LGBT rights in Sacramento....
Colorado — In response to direction from
the county commissioners, Eagle County’s Human Resources Director has announced that
county employees will be able to apply for insurance benefits for same-sex partners during
2007. The county has 425 workers, but Director Nora Fryklund expects the cost to be small,
since she thinks there are only about half a
dozen county employees who would qualify,
and fewer may actually request the benefits. Aspen Daily News, Dec. 9.
Michigan — The Lansing City Council voted
Dec. 18 to pass a human rights ordinance that
prohibits discrimination based on sexual orientation, gender identity or expression, and several other characteristics. The measure passed
8–0 and went into effect immediately.
Missouri — On Dec. 18 the Columbia, Missouri, city council approved changes to the city’s employee benefit plan to provide health insurance to unmarried life partners of city
employees. The plan requires at least six
months living together before a partner, or age
18, is eligible for benefits. Applicants for the
benefits will have to file an affidavit on their
qualifications, which include that the partners
“share the common necessities of life.” The
change goes into effect in February 2007. Columbia Daily Tribune, Dec. 19.
New Jersey — New Jersey amended its civil
rights law to codify the ruling by the state courts
that gender identity discrimination is unlawful.
The amendment makes explicit what had been
found implicit in the ban on sex discrimination
by the courts. The measure was signed into law
12
by Governor Jon Corzine on December 19.
North Jersey Record, Dec. 20.A.S.L.
Law & Society Notes
United Nations — After a long struggle spreading over many years, the United Nations Economic and Social Council has finally agreed to
grant consultative status to LGBT organizations. This status will allow the NGOs in question the Danish National Association for Gays
and Lesbians, the European Region of the International Lesbian and Gay Association, and
the Lesbian and Gay Federation of Germany to
work directly on human rights issues through
access to UN meetings, delivery of oral and
written reports, contact with country representatives, and organizing events at the UN to facilitate understanding of their missions.
American-based LGBT organizations have not
yet won such recognition from the world body.
International Gay and Lesbian Human Rights
Commission Press Release, Dec. 13.
Judaism — Voting after two days of deliberation and years of discussion, the 25–member
Committee on Jewish Law and Standards of the
Rabbinical Assembly, the clergy association of
Conservative Judaism moved by a bare majority of its members to approve a statement that
gay men and lesbians can serve as rabbis, and
that Conservative rabbis can perform union
ceremonies for same-sex couples. At the same
time, however, a bare majority also approved a
contrary statement. One rabbi who voted for
both statements said that he thought each of
them made a persuasive case to be taken as a
statement of Conservative doctrine, and by voting for both he ensured that individual rabbis
and congregations would be free to decide
which view to adopt. This was progress over the
last time the Committee actually voted on the
issue, more than a decade ago, when only the
negative opinion was passed. Also achieving
six votes was a statement supportive of those
Jews seeking reparative therapy to change their
sexual orientation. Six votes are the minimum
necessary for a statement to have some recognition as a valid statement of Jewish law. The
“pro-gay” resolution that passed also included
the caveat that Conservative Judaism continues
to recognize a Biblical prohibition on consensual anal sex between men, and an understanding that gay Conservative rabbis will not engage
in such conduct, but no mechanism for monitoring this. Four members of the Committee resigned over the vote, including the author of the
traditionalist resolution that received 13 votes,
to protest the vote, affirming there view that the
statement was inconsistent with the liturgical
commitments of Conservative Judaism. The
Conservative movement straddled the fence, as
it tends to do, not moving so far as Reform Judaism (the largest Jewish movement in the U.S.),
which has rejected the Biblical ban and has
January 2007
been ordaining openly-gay rabbis and performing commitment ceremonies for some time, or
Reconstructionist Judaism, the smallest of the
movements and the one that first admitted
openly gay students to its rabbinical seminary.
Orthodox Judaism remains staunchly opposed
on all these issues. The immediate consequence will be that many closeted Conservative
Rabbis, cantors and other leaders will ease out
of the closet, and that the movement’s seminaries will likely abandon their current exclusion
of gay students from rabbinical training programs. The Jewish Week, Dec. 7.
Presbyterians — Eight conservative Virginia
parishes voted in December to cut their ties
with the Presbyterian Church, mainly over the
issue of homosexuality. They plan to affiliate
with the Convocation of Anglicans in North
America, a group affiliated with Archbishop
Peter Akinola of Nigeria, perhaps the most outspoken anti-gay leader in the Anglican Church
worldwide. Akinola is an avid supporter of legislative proposals pending in Nigeria to drive
homosexuality as far underground as possible
be making it a crime to do anything in Nigeria
involving homosexuality — apart maybe from
thinking about it, but even that is undoubtedly
suspect in Akinola’s worldview. Christian Science Monitor, Dec. 19.
Judicial Politics — U.S. Senator Sam Brownback of Kansas, who had been single-handedly
blocking a confirmation vote for Janet Neff, a
Michigan state judge who has been nominated
by President Bush to serve on the federal district court, because Judge Neff had attended
the same-sex wedding in Massachusetts of a
neighbor’s daughter at which the judge spoke,
has removed his “hold” on the nomination.
Brownback, while insisting he may still vote
against confirmation, was finally shamed when
members of his own party criticized his proposal that he might allow the Neff nomination to
go forward if she would promise to recuse herself from any cases involving same-sex unions.
New York Times, Dec. 19.
Minneapolis — Bonnie Bleskachek, who
served as the first openly-gay head of a major
city’s fire department, stepped down from that
position in Minneapolis on December 22, according to an announcement by Mayor R.T. Rybak, but will continue as an administrator in the
fire department without supervisory responsibilities. Bleskacheck was defending several
law suits accusing her of inappropriate conduct
in her running of the department, some of which
have been settled by the city. Bleskacheck denies some of the adverse findings reached by a
city investigation, claiming that as an “out lesbian” she was a target for spurious accusations.
New York Times, Dec. 23.
New York — At first it appeared the New York
City would be in the vanguard of legal recognition for transsexuals, when the City Health Department announced a plan that would allow
Lesbian/Gay Law Notes
transgendered persons to get new birth certificates showing their preferred gender without
proof of gender reassignment surgery. But then
Commissioner Thomas Frieden backed away
from the proposal, responding to a barrage of
criticisms that it would create problems in a variety of institutional settings where the sexes
have traditionally been segregated, such as
prisons, mental health institutions, and the
like. The Board of Health, however, agreed to
begin issuing new birth certificates for those
who did have such surgery showing their new
gender. In the past, new birth certificates were
issued removing any reference to gender. Associated Press, Dec. 5.
North Carolina — Gay penguins posed too
severe a challenge to the judgmental prowess of
Charlotte-Mecklenburg School Superintendent
Peter Gorman, according to news reports originating in the Charlotte Observer over his decision to removed “And Tango Makes Three”
from school libraries in the district. The picture
book is based on a true story about a pair of
male penguins living in the Central Park Zoo in
New York, who hatched an adopted egg and
parented the offspring. When Gorman heard
complaints about the book, he unilaterally removed it from the shelves, in violation of district policy requiring that a committee rule on
challenged books after due study. Embarrassed
at the resultant controversy when the newspaper reported his actions, Gorman admitted
“screwing up” and said a committee will examine the book in January. The book has been
challenged in quite a few school districts, but so
far has not been officially banned anywhere...
to the relief of LGBT penguin lovers worldwide!
Bradenton Herald, Dec. 20.
Wisconsin — Outgoing Attorney General Peg
Lautenschlager issued a written opinion on December 27 asserting that the recently passed
Wisconsin marriage amendment does not affect
or invalidate domestic partnership benefits for
public employees in the state. The opinion was
given in response to a request from the city attorney in Madison, where questions about the
continued validity of the city’s domestic partnership benefits program had arisen as a result
of the amendment’s passage. An A.G. opinion
remains in effect until revoked; the incoming
Attorney General, J.B. Van Hollen, was a supporter of the marriage amendment, and it is uncertain what position he will take. In Michigan,
the attorney general issued an opinion after the
passage of that state’s amendment casting
doubt on the continued legal viability of domestic partnership benefits plans in the state. Capital Times, Dec. 28.
Elderly British Sisters Lose European Human
Rights Ruling Over Inheritance Taxes on Home
Elderly English sisters living together in their
family home and fearing that inheritance taxes
Lesbian/Gay Law Notes
might force the survivor to sell if one dies have
narrowly lost their claim that this situation violates their basic human rights under the European Convention. On December 12, a sevenmember chamber of the European Court of Human Rights, voting 4–3, ruled in Burden &
Burden v. United Kingdom, Application No.
13378/05, that the United Kingdom had not
violated their rights when it legislated to provide same-sex couples with relief from this inheritance tax by registering as civil partners,
but refused to extend similar relief to cohabiting siblings. The Burdens have vowed to appeal
to a full chamber of the court.
Joyce and Sybil Burden, age 88 and 80 respectively, have been living together in a home
built on land inherited from their parents for the
past thirty years. The land and house have so
appreciated in value that they fear if one died
first the other would have to sell in order to meet
the rather stiff inheritance tax that the U.K. imposes on inherited property. Surviving legal
spouses and civil partners are not subject to inheritance tax in such circumstances.
Until December 2005, the Burden sisters
had no grounds for a discrimination complaint,
since all unmarried cohabitants faced the same
concern and the European Convention allows
governments to grant special rights and exemptions to married couples. But on December 5 of
last year, the U.K’s new Civil Partnership Law
went into effect, allowing same-sex couples to
form partnerships having the same inheritance
and tax status as married couples, providing a
basis for the Burden sisters to mount a discrimination claim.
When the new law was pending in Parliament, the issue of fairness for elderly unmarried couples living together was forcefully
raised. In fact, the House of Lords approved an
amendment to deal with the situation, which
the Blair government opposed as not appropriately attached to this bill, because the bill was
aimed at dealing with the situation of same-sex
partners seeking legal status for their
marriage-like relationships. When the legislation was returned to the House of Commons, the
amendment was deleted and did not become
part of the final bill, the government again taking the position that this was an issue to be dealt
with separately. But it has not been dealt with.
In their argument to the European Court, the
Burden sisters contended that this posed a fundamental unfairness that violated the ban
against categorical discrimination in the Convention. The British government argued that
the Burdens had no claim because they had not
yet suffered any of the consequences they
feared, and it was possible the government
would address this problem before either of
them died. The court was not willing to entertain this objection, in light of their advanced
ages and the rejection of the Lords’ amend-
January 2007
ment. All seven members of the court agreed
that the case was properly before them.
However, a bare majority of the court concluded that in matters of taxation, government
parties to the Convention have a wide “margin
of appreciation,” a term used to indicate the
right of governments to exercise discretion in
managing their affairs. Without engaging in any
real analysis, the court majority treated this as a
matter beyond the reach of the Convention.
“A government may often have to strike a balance between the need to raise revenue and the
need to reflect other social objectives in its
taxation policies,” wrote the court. “Because of
their direct knowledge of their society and its
needs, the national authorities are in principle
better placed than the international judge to appreciate what is in the public interest on social
or economic grounds.” The court stated that it
would not second-guess the government unless
its policy choices are “manifestly without reasonable foundation.”
In a line of reasoning strikingly analogous to
that used by the New York Court of Appeals this
summer in rejecting the same-sex marriage
case, the court found that the government had
good reason to extend the marital privileges on
inheritance tax to same-sex couples, and thus
could not be criticized on that account since the
same rationale would not ground extending it to
cohabiting elderly siblings. “In the present
case,” the court said, it “accepts the Government’s submission that the inheritance tax exemption for married and civil partnership couples likewise pursues a legitimate aim, namely
to promote stable, committed heterosexual and
homosexual relationships by providing the survivor with a measure of financial security after
the death of the spouse or partner.”
The court pointed to Convention principles
protecting marriage and effectively banning
sexual orientation discrimination as supporting
the Civil Partnership Act’s focus solely on
same-sex couples. “The State cannot be criticized for pursuing, through its taxation system,
policies designed to promote marriage; nor can
it be criticized for making available the fiscal
advantages attendant on marriage to committed
homosexual couples.”
But three dissenters were not persuaded.
Judges Giovanni Bonello of Malta and Lech
Garlicki of Poland criticized the majority for
failing to provide a “full explanation as to how it
applied the ‘margin of appreciation’ concept in
this case,” as the court had invoked the concept
without any real explanation. They criticized
the British government’s failure to articulate
any logical reason other than loss of revenue for
failing to account for situations like the Burden
sisters, arguing that “once the legislature decides that a permanent union of two persons
could or should enjoy tax privileges, it must be
able to justify why such a possibility has been
offered to some unions while continuing to be
13
denied to others.” And they pointed out that
many of the justifications for recognizing
same-sex couples also applied to cohabiting
elderly siblings. “It is very important to protect
such unions,” wrote Bonello and Garlicki,
“like any other union of two persons, from financial disaster resulting from the death of one
of the partners.”
The other dissenting judge, Stanislav Pavlovschi of Moldova, was even harsher in condemning the court’s judgment. Exhibiting
striking empathy for the Burden sisters, he
wrote, “The case concerns the applicants’ family house, in which they have spent all their
lives and which they build on land inherited
from their late parents. This house is not simply
a piece of property this house is something with
which they have a special emotional bond, this
house is their home.”
“It strike me as absolutely awful,” he went
on, “that, once one of the two sisters dies, the
surviving sister’s sufferings on account of her
closest relative’s death should be multipled by
the risk of losing her family home because she
cannot afford to pay inheritance tax in respect
of the deceased sister’s share of it. I find such a
situation fundamentally unfair and unjust. It is
impossible for me to agree with the majority
that, as a matter of principle, such treatment
can be considered reasonable and objectively
justified. I am firmly convinced that in modern
society there is no ‘pressing need’ to cause people all this additional suffering.” A.S.L.
Irish Court Rejects Recognition for Canadian
Same-Sex Marriage
The High Court in Dublin has ruled that an
Irish same-sex couple married in Canada was
not entitled to legal recognition of that marriage
under the tax laws of the Irish Republic. The
December 14 decision by Justice Elizabeth
Dunne in Zappone & Gilligan v. Revenue Commissioners seemed to turn largely on her view
that the 1937 Constitution should be interpreted according to the meaning that its drafters would have intended, which cannot seriously be argued to include same-sex marriage.
Katherine Zappone and Ann Louise Gilligan
were married in Vancouver, British Columbia,
Canada, on September 13, 2003. They returned home to Ireland and sought a declaration that their marriage was valid and recognized in their home country. The Registrar
General’s office replied that its authority “does
not extend to making a declaration on the validity of marriages that occur outside the State,”
insisting that it was a question for the courts.
Zappone and Gilligan had also had their lawyer write to the Revenue Commissioners, seeking a determination that they would be treated
as a married couple under the tax laws. Although the tax law does not offer a definition of
marriage or specify the parties to a marriage for
14
purposes of the law, the Commissioners’ response was to refer to the dictionary and to declare that Zappone and Gilligan could not be
treated as a married couple.
They sought judicial review of this ruling, an
application for permission to file such a case
was granted by a judge of the High Court on November 9, 2004, and the battle was joined with
the government. The case was heard before
Justice Dunne on October 3.
The bulk of Justice Dunne’s very lengthy
written opinion consists of a detailed description of all the evidence and arguments offered
by the plaintiffs and the government, with only
a few pages at the end of a 100+ page decision
giving the conclusions of the court. To judge by
Justice Dunne’s summary, the presentations to
the court were exhaustive and international in
scope, ranging over opinions from many jurisdictions (including the United States) and including expert testimony on the parenting abilities of gay people, inasmuch as the plaintiffs
anticipated that a state justification based on
procreation would be forthcoming.
Ultimately, however, the case seems to have
turned largely on Justice Dunne’s unwillingness to abandon her concept of original intent.
“It has been accepted in this case on behalf of
the plaintiffs that one of the common law
grounds of exclusion based on lack of capacity
is that the two people seeking to marry are of the
same sex,” she wrote. “There is also now a legislative prohibition introduced by the Civil
Registration Act of 2004. It was also accepted
that insofar as the institution of marriage is described within the Constitution that what was
always understood by the framers of the Constitution was the traditional understanding of
marriage as exemplified in cases such as Hyde
v. Hyde referred to above, namely ‘the voluntary union of one man and one woman, to the exclusion of all others.’”
While acknowledging the idea that a Constitution is a “living instrument” that must be interpreted in light of the times, Dunne rejected
the plaintiffs’ argument that there had been sufficient social change to support the conclusion
that a social “consensus” now exists in favor of
same-sex marriage. While noting the persuasive force of the Massachusetts Supreme Judicial Court’s 2003 marriage decision, for example, Dunne observed, “It is clear that the
judgment of the majority in the Goodridge case
has not found wide favour. Indeed since that
judgment a number of other States have come to
a different conclusion, most recently, the court
in the Californian case of Woo v. Lockyer.”
“I have a difficulty in this case in accepting
the arguments of the plaintiffs to the effect that
the definition of marriage as understood in
1937 requires to be reconsidered in the light of
now prevailing standards and conditions,” she
went on. “Marriage was understood under the
1937 Constitution to be confined to persons of
January 2007
the opposite sex. That has been reiterated in a
number of the decisions which have already
been referred to,” she pointed out, noting that
some of those decisions were of recent vintage,
as was the 2004 statute expressly endorsing an
opposite-sex definition of marriage.
“Having regard to the clear understanding of
the meaning of marriage as set out in the numerous authorities open to the Court from this
jurisdiction and elsewhere,” she wrote, “I do
not see how marriage can be redefined by the
Court to encompass same-sex marriage. The
Plaintiffs referred frequently in the course of
this case to the ‘changing consensus’ but I have
to say that there is little evidence of that. The
consensus around the world does not support a
widespread move towards same sex marriage.
There has been some limited support for the
concept of same sex marriage as in Canada,
Massachusetts and South Africa together with
the three European countries previously referred to [The Netherlands, Belgium and
Spain] but, in truth, it is difficult to see that as a
consensus, changing or otherwise.”
Dunne noted particularly that the plaintiffs
had not directly challenged the constitutionality of the 2004 Civil Registration Act, which
had embraced an explicit opposite-sex definition of marriage. The plaintiffs noted that this
Act had gone into effect after they filed their
lawsuit, but Dunne pointed out that throughout
the litigation they had disavowed any intention
to question its constitutionality.
Ultimately, Dunne concluded that if there
was a right to marry, it was derived from the
Constitution, and given the original understanding of marriage of that document’s drafters, then the right must be a “right to opposite
sex marriage,” and “thus that is a justification
for any distinction between the position of the
plaintiffs and married couples.” She also reiterated that the plaintiffs had conceded that they
were treated by the tax officials no differently
from opposite-sex couples who were not married.
Dunne also rejected the secondary argument
that Ireland’s refusal to recognize the marriage
would violate the European Convention on Human Rights. Although the European Court of
Human Rights has ruled that transsexuals have
a right to marry as a member of their acquired
sex, that was in the context of redefining their
sex and was not, in Dunne’s view, an endorsement of a right to same-sex marriage. So far, the
European court has not directly and specifically held that same-sex couples are entitled to
marry as part of the respect for private life guaranteed by the Convention.
Dunne did express empathy for the problems
encountered by same-sex couples, and concluded, “It is to be hoped that the legislative
changes to ameliorate these difficulties will not
be long in coming. Ultimately,” she insisted, “it
Lesbian/Gay Law Notes
is for the legislature to determine the extent to
which such changes should be made.”
Since the High Court was sitting in this case
as a trial court, the possibility of appeal exists,
depending upon the determination of the plaintiffs to pursue the issue. A.S.L
Australian Capital Territory Tries Again for Civil
Unions — Under a Different Name
Australia — In December, the government of
the Australian Capital Territory introduced a
Civil Partnerships Bill. It succeeds the Territory’s Civil Unions Act which was disallowed by
the federal government in June 2006 (LGLN,
Summer 2006, pp 147–48). The Bill uses the
language of “partnership” in attempt to avoid
the federal government’s objection that “union” equated marriage. The Bill also does not
contain the provision that said a civil union was
to be treated in the same way as marriage under
ACT law. Instead, the Civil Partnerships Bill
provides that a civil partnership is a domestic
partnership, a concept already wellestablished in Territory law. A response from
the Australian government is not expected until
early 2007. David Buchanan SC
Other International Notes
Australia — The Advertiser reported Dec. 14
that Clinton Dwayne McRae, from Victoria,
pled guilty to charges of stabbing a transsexual
after discovering her male genitals during sexual foreplay in her home. McRae met the
woman at a nightclub, went back to her home,
got into it, only to make his discovery and, outraged, broke a vase and repeatedly stabbed her
with a jagged shard of pottery. The Victorian
County Court sentenced McRae to seven years
in prison with a minimum term of four and a half
years.
Canada — Keeping a campaign promise,
Prime Minister Stephen Harper put to the
House of Commons the question whether it desired to reopen the issue of same-sex marriage.
His motion went down to resounding defeat by a
vote of 175–123, even thirteen members of his
own party rejecting the motion. (Harper had
urged every party to give its members a “free
vote.”) The measure had widely been expected
to fail, because almost all of the Liberal Party
members would oppose it, as would the New
Democrats and the Quebecois Party. Harper
declared the matter closed, indicating he would
not seek a new vote on the issue. Washington
Post, Dec. 8.
Canada — The British Columbia Human
Rights Tribunal has refused to dismiss a discrimination complaint brought by Deborah
Magnone, formerly John Magnone, against B.C.
Ferries. Magnone claims to have been discharged just a few days short of ending her probation period due to bias against transsexuals.
Lesbian/Gay Law Notes
She had previously worked for the company as a
man much earlier in her life, but did not disclose this prior employment or her former gender when applying for a new position with the
organization in 2004. The employer claimed
various faults in her work as the basis for deciding to terminate a probationary employee. The
Tribunal stated that the complaint alleges sufficient facts to justify allowing the matter to proceed. Hamilton Spectator, Dec. 29.
China — China has been a favorite source of
adoptive children for Americans, including
LGBT people and single folk, but no longer.
The government plans to bar foreign adoptions
by single people, according to news stories
emanating from some agencies that have been
dealing with Chinese adoptions. In addition,
the government will bar adoptions by people
over age 50 or those who are obese, although it
is uncertain how this last classification will be
defined. 365Gay.com, Dec. 20.
Faeroe Islands — The Faeroe Islands, a Danish semi-autonomous territory, has adopted a
ban on sexual orientation discrimination by a
17–15 vote of the legislative body. The islands
are home to approximately 48,000 people in
small fishing communities. The legislation
came about in response to an incident in September when an openly-gay musician, Rasmus
Rasmussen, 25, was allegedly assaulted by five
men in Torshavn, the capital, and the police expressed reluctance to treat the matter as a hate
crime because discrimination against homosexuals was legal. Although Denmark created
registered partnerships for same-sex couples in
1989, the Faeroe Islands have not yet taken that
step. 680News.com, Dec. 19.
Ireland — The Irish government announced
a change in the rules governing passports, under which it will allow transsexuals to change
their names and gender identification on Irish
passports. At the same time, the government is
vigorously defending against a lawsuit pending
in the High Court challenging its refusal to allow transsexuals to obtain new birth certificates
reflecting their gender change. Dr. Lydia Foy, a
Kildare dentist in her 50s, was born male, married and father two children before undergoing
gender reassignment fifteen years ago and ending her marriage. She changed her name legally
in 1993, but is still seeking to have a new birth
certificate issue showing her as female. She lost
in the High Court in 2002, but just two days
later, the European Court of Human Rights
ruled in favor of Christine Goodwin in her suit
against the United Kingdom on recognition of
her acquired gender, and Dr. Foy renewed her
efforts in light of Ireland’s accession to the
European Convention on Human Rights. Irish
Times, Dec. 19.
Israel — Responding to the Supreme Court’s
ruling in Ben-Ari v. The Director of the Population Administration in the Ministry of the Interior, HCJ 3045/05 (Nov. 21, 2006), which held
January 2007
that the clerks in the Population Administration
must record legal same-sex marriage performed in jurisdictions that allow them upon
the application of Israelis who go to those jurisdictions to be married, the Knesset voted
33–31 on December 6 in favor of a private
member bill that would reserve to the Knesset
the sole authority to determine whether samesex marriages shall be subject to registration in
Israel. There was a bare quorum in the house,
and the chair of the session reportedly rushed
through the proceeding during the lunch hour,
catching several opponents of the bill absent.
The bill now is referred to a committee for a first
hearing. There are many opportunities to block
its passage prior to final presentation in the
Knesset (where, as a private member’s bill, it
needs three affirmative votes), and there is
hope that sufficient opposition can be organized to kill it before enactment. [Aeyal Gross, a
law teacher at Tel Aviv University, provided the
information on which this report is based.]
Italy — The government announced on Dec.
7 that it will propose civil union legislation in
2007. Anna Finocchiaro, the Senate speaker of
the Union, the largest political faction in the
center-left cabinet majority, made the announcement. Last spring, the Family Minister,
Rosy Bindi, had announced her view that Italy
had a duty to discuss some form of civil union as
a result of legal developments in the European
Community. Adnkronos International, Dec. 7.
••• Meanwhile, Padua’s City Council voted on
Dec. 4 to extend legal recognition to cohabiting
unmarried partners, both same-sex and
opposite-sex, authorizing the local statistics office to issue certificates to domestic partners
recognizing them as “a family founded on
bonds of affection.” In effect, the certificates
can be used in all circumstances where private
or public entities recognize domestic partnerships, a widespread phenomenon now in Italy,
where the number of cohabiting unmarried
couples has tripled over the past decade and it
is estimated that 14% of children are now born
to unmarried parents, up 70% since 1995. Associated Press, Dec. 6.
Scotland — The Scottish Parliament has approved a measure allowing same-sex couples to
jointly adopt children, on a vote of 101–6 despite heavy lobbying against the measure by religious bodies. The law also allows unmarried
couples to adopt, as well. The measure brings
Scotland into conformity with the rest of the
U.K., where legislation made such a change affecting England and Wales in 2005. Gay.com,
Dec. 11.
Scotland — An attempt by officials of the
Church of Scotland to provide authorization for
ministers to perform ceremonies for same-sex
couples who have formed civil partnerships under English law has been stymied by protests
and 74% of presbyteries voting to reject the
idea. Daily Mail, Dec. 9.
15
Spain The Independent reported on Dec. 28
that the government is contemplating providing
compensation for gay people who were mistreated by the Franco regime. According to
news reports, the proposal is to provide a lump
sum payment followed by a small monthly pension to all those who were subjected to harsh
treatment under the fascist regime that prevailed in Spain from the time of the Civil War in
the 1930s until the death of Generalissimo
Franco and beyond, as the sodomy laws were
not reformed until 1979.
Sweden — The Swedish Lutheran Church,
the country’s largest church (and until 2000 the
established state church) has announced that
beginning in 2007 same-sex couples in Sweden
will be able to request a blessing for their unions in any of the church’s congregations
around the country. Sweden has had a civil
partnership law wince 1995, providing most of
the rights and obligations of marriage for
same-sex couples who register. The ceremonies
for civil partnerships are conducted by government officials. After a couple has formed a partnership in a civil ceremony, they will be eligible
to request a religious ceremony from the
church. The church said that individual priests
who object need not perform the ceremonies,
but the congregations will be obligated to secure clergy to perform them. 365Gay.com, Dec.
6.
United Kingdom — The HSBC gay discrimination case continues... An Employment Appeal Tribunal has reversed the finding of the
trial tribunal concerning Peter Lewis’s claim
that his discharge by HSBC Bank violated
non-discrimination rules. Lewis, openly-gay,
was charged with inappropriate restroom behavior. The tribunal had found inadequate support on the merits, but ruled that Lewis was titled to some compensation because the process
used to make the discharge decision was inadequate. The appellate tribunal vacated this ruling, finding that HSBC had been given an inadequate opportunity to respond on this aspect
of the case. So the matter continues back to the
trial level, unless the parties can reach some
sort of settlement. Financial Times, Dec. 20.
United Kingdom — The Home Office issued
a guidance manual for the use of public schools
in combating homophobia. Among other things,
the Home Office recommends that schools hold
a “lesbian, gay, bisexual and transsexual
awareness week” and establish internet sites to
facilitate reports of anti-gay abuse to the police.
London Times, Dec. 29.
United Kingdom — An Employment Tribunal in Birmingham found that Drusilla Marland
of Bristol, a transsexual, was constructively discharged from her job as a maintenance worker
on the Pride of Bilbao, a ferry operated by P&O
Ferries, as a result of “an atmosphere of intimidation and hostility” on the part of the crew.
The conduct described in the tribunal’s ruling
16
would easily meet the test for hostile environment harassment under U.S. Title VII, provided, of course, that one uses the new approached championed by a few federal courts
finding Title VII applicable to gendernonconforming behavior. Birmingham Post,
Dec. 18. A.S.L.
Professional Notes
California — An openly-lesbian judge, Diana
Hall, was ordered removed from Santa Barbara
County Superior Court after the California judicial disciplinary agency determined that she
had concealed her same-sex partner’s $20,000
campaign donation in order to keep it from
coming to the attention of the voters, rejecting
her claim that she was unaware she had to re-
January 2007
port the donation. The Commission on Judicial
Performance unanimously concluded that she
had engaged in “deceitful and lawless conduct
that undermines the judicial process, and
thereafter (tried) to explain it away with specious arguments and misleading testimony.”
Hall had thirty days within which to appeal the
removal order, which was made on Dec. 12. San
Francisco Chronicle, Dec. 13.
New York — David A. Hansell, an openlygay attorney who used to direct the Legal Services Department at Gay Men’s Health Crisis
and has most recently served as Chief of Staff at
the New York City Human Resources Administration, has been nominated by Governorelect Eliot Spitzer to serve as Commissioner of
the Office of Temporary and Disability Assistance. From 1997 to 2001, he was the Associate
Lesbian/Gay Law Notes
Commissioner for HIV Services at the New
York City Department of Health. He subsequently served as Associate Commissioner for
Planning and Program Implementation. Hansell has also been a consultant on health policy
and social services issues to a wide range of
governmental and non-profit organizations. He
is a graduate of Haverford College and Yale
Law School.
Ohio — Openly gay Columbus, Ohio, attorney Mary Jo Hudson, a member of the city
council, has been appointed by Governor-elect
Ted Strickland to be Director of the state’s Department of Insurance. As such, she will be the
first openly-gay person to serve in a cabinetlevel position in the Ohio state government.
Hudson is well qualified for the post, having
worked as an attorney in the Ohio Department
of Insurance and the office of the Ohio Insurance Liquidator from 1989 to 1996. A.S.L.
AIDS & RELATED LEGAL NOTES
Military Appeals Court Reduces Penalty for
Unprotected Vaginal Intercourse
Following a sophisticated analysis of how
changes in HIV treatment should change the
calculus for determining risks attributable to
unprotected vaginal intercourse, a military appeals court has reduced the penalty that was
imposed at court martial on a Coast Guard officer who admitted having unprotected intercourse with a woman without using a condom or
disclosing his HIV+ status to her. U.S. v.
Upham, 2006 WL 3740838 (U.S. Coast Guard
Ct. Crim. App., Dec. 20, 2006).
Lt. Christopher Upham was found to be
HIV+ in 1998. He has been receiving antiretroviral therapy, resulting in a very low but not
undetectable viral load count. He was counseled about the need to use condoms to avoid
transmitting HIV. In the early morning hours of
October 7, 2003, he twice engaged in intercourse with a woman without using a condom or
disclosing his HIV status. The decision for the
court by Judge McClelland does not detail how
this came to the attention of military authorities.
Upham pled guilty to one count of conduct
unbecoming an officer in violation of Art. 133,
but refused to plead guilty to the count of committing an aggravated assault in violation of
Art. 128. His position was that the sex was consensual and that the risk of transmission was
small enough that he need not have used a condom or disclosed his HIV status.
The court heard detailed testimony about the
current state of medical information, with particular emphasis on the likelihood of HIV
transmission by somebody in Upham’s situation who engages in non-violent vaginal intercourse without using a condom, and decided
that the military judge erred in charging the
court martial that “a person who wilfully and
deliberately exposes a person to seminal fluid
containing HIV without informing that person
of his HIV positive status and without using a
condom has acted in a manner likely to produce
death or grievous bodily injury.” This charge in
effect took away from the jury the role of judging
whether the risk to which Upham exposed his
partner was severe enough to qualify for the
crime of aggravated assault, whose elements
were incorporated in the charge. The appeals
court found that a jury could, based on the evidence, decide that this was a simple battery because consent was not effective under the circumstances, but not an aggravated assault. The
appeals court rejected Upham’s argument that
the reduced risk meant that the sex was fully
consensual, finding that a reasonable person in
the position of Upham’s sexual partner would
want to have the facts necessary to decide
whether to consent to sex with a person who is
HIV+.
Since the court found as a matter of law that
this was a battery, but not an aggravated assault,
the permissible penalty that the judge communicated to the court martial was too high. Consequently, the appeals court reduced the length
of the sentence to be more in line with the offense that was found. A.S.L.
AIDS Litigation Notes
5th Circuit — The U.S. Court of Appeals for the
5th Circuit affirmed a ruling by the district
court that Texas state prisoner Gary Eugene
Sims had failed to state an 8th Amendment
claim against the prison, which had not provided him with any medication for his HIV infection. Sims v. Dretke, 2006 WL 3627173
(Dec. 13, 2006)(not officially published). Sims,
who is HIV+, was evaluated several times, but
the prison medical staff concluded that his
present condition did not require medication.
Sims charges a conspiracy to let him die in
prison due to lack of treatment for HIV. Wrote
the court, per curiam, “As the district court
noted, the United States Department of Health
and Human Services has stated an HIVpositive individual need not necessarily undergo anti-HIV treatment; whether to undergo
such treatment depends on an individual’s
medical assessments and particular circumstances. Sims admits being medically examined on numerous occasions, but disagrees with
his diagnosis and course of treatment. Such disagreement, standing alone, is insufficient to
state a claim under Section 1983.” The opinion
contains no discussion of the medical qualifications of the personnel assigned to evaluate
Sims and of their capacity to make a competent
judgment as to whether his HIV+ condition
called for treatment. The district court had
characterized Sims’ complaint as frivolous.
Federal — N.D. California — In a length,
fact-laden opinion issued on Dec. 15, U.S. District Judge Phyllis J. Hamilton rejected a claim
that Kevin Dimmick, an HIV+ military veteran
who has received treatment from the Veterans’
Administration Medical Center, suffered a violation of his rights as a result of being administered drugs for his HIV condition without getting formal written consent. Dimmick v. United
States, 2006 WL 3741911 (N.D. Calif.) (Not officially published). Judge Hamilton concluded
that the treatment offered Dimmick required
only verbal consent and that he had been given
adequate information by the doctors to support
such consent. Dimmick, who suffered adverse
side effects from medication, claimed that he
was entitled to much more information and a
written consent procedure, and that failure to
provide this should subject various defendants
Lesbian/Gay Law Notes
to liability in connection with the injury he
claims to have suffered. Judge Hamilton’s decision, although adverse, is remarkably thorough
and expresses empathy for the difficulties Dimmick faces in managing his HIV infection.
Illinois Setting aside a $2 million jury verdict
for fraudulent misrepresentation, the Appellate
Court of Illinois, First District, ruled in Doe v.
Dilling, 2006 WL 3771807 (Dec. 22, 2006),
that although this particular tort may apply in a
non-commercial context, its application to a
claim by an HIV+ woman that her deceased fiance’s parents deliberately concealed form her
that he was dying from AIDS was inappropriate
in this case because her reliance on their statements about her fiance’s health was not justifiable under the circumstances. It seems that Alfred Dilling’s health was so alarming that “Jane
Doe” asked his parents whether he might have
AIDS, and they said no, even though at some
point they became aware of it and continued to
deny it to her. Given the date at which the court
found that the senior Dillings definitely knew
about their son’s illness, Doe cannot claim that
she was infected due to their false responses to
her queries, but she was claiming loss of opportunity for treatment, because by the time she
learned after Alfred’s death that he had AIDS,
her own infection was relatively advanced. She
sued an theories of both negligent and fraudulent misrepresentation, but the trial court directed a verdict against her on the negligence
count, sending the fraud count to the jury,
which ruled in her favor. She appealed the directed verdict, and the Dillings appealed the
jury verdict. The appellate court found, however, that somebody who had cause for concern
that she might have been exposed to AIDS
could not justifiably rely upon statements by
lay people such as the Dillings, but had a duty
to seek medical care and be tested. Concluding
a lengthy opinion for the court, Justice Joseph
Gordon wrote: “Doe’s theory of negligent misrepresentation is that the Dillings had voluntarily undertaken a duty to keep her fully informed
about Albert’s health, and they were negligent
in failing to inform her that Albert was HIVpositive. However, the mere nondisclosure of
January 2007
Albert’s HIV status, whether intentional or otherwise, cannot be actionable because of the
Confidentiality Act. If there was to be any liability, it would have to be predicated upon the
theory of misrepresentation, rather than nondisclosure. That aside, the theory of negligent
misrepresentation, like the theory of fraudulent
misrepresentation, must fail because of Doe’s
failure to establish that her reliance on the
Dillings’ representations was reasonable.”
Nevada — Lambda Legal announced the
settlement of a federal discrimination case
against the owner of a Las Vegas Subway fastfood restaurant who fired a manager because of
his HIV+ status. The settlement in Hickman v.
Donna Curry Investments includes undisclosed
compensation to plaintiff Robert Hickman and
an agreement by the company to ban discrimination against HIV+ people, and to train its
management staff on the issues and their legal
obligations. The case is part of Lambda Legal’s
“Blow the Whistle Campaign,” intended to find
and spotlight instances of HIV and LGBT related workplace discrimination in order to advance the ability of sexual minorities and people with HIV to participate fully in the national
economy as employees. Lambda Legal news
release, Dec. 20.
Texas — The Texas Court of Appeals, 1st
District, ruling Dec. 14 that emotional distress
suffered by a pregnant woman who was given an
erroneous HIV+ test result by the hospital was
not compensable under Texas tort law, affirmed
a decision by the Harris County District Court
to set aside a $52,000 jury verdict as not supported by the evidence in the case. Johnson v.
Methodist Hospital, 2006 WL 3628906. Nancy
Johnson was tested during her eighth month of
pregnancy when she changed physicians.
When the HIV test came positive, she was advised to rush to the hospital immediately at the
onset of labor so that she and the child could be
treated with AZT to prevent transmission. She
did so, and was discharged with instructions to
continue administration of AZT to the child.
The day after delivery, however, she was informed that further testing confirmed she was
negative and to discontinue the AZT treat-
17
ments. She sued the hospital for malpractice
and attained the jury verdict, which was reversed by the trial court. Writing for the court of
appeals, Justice George C. Hanks, Jr., confirmed that Texas will not award damages for
negligent infliction of emotional distress in the
absence of proof of physical injury flowing from
the negligence, and that having to take AZT and
submit to blood testing did not count as physical injuries for this purpose. A.S.L.
AIDS Law & Policy Notes
United States Tourist/Business Visas — The
White House announced on World AIDS Day,
December 1, that the president will be issuing
an executive order easing the procedure for
HIV+ individuals to obtain 60 day tourist or
business visas to enter the U.S. Under current
law, individuals who are HIV+ are required to
apply for special waivers under the 1993 immigration law that authorized the Secretary of
Health to adopt a list of diseases of public
health significance as a basis for barring immigration. The White House announcement did
not make clear whether applicants for the visas
would have to declare their HIV status. Current
U.S. visa procedures require applicants to indicate whether they are infected. Advocate.com,
Dec. 5. As of December 28, when we visited the
White House website to view the list of executive orders, the promised order had not yet been
listed.
Needle Exchange — On December 19, New
Jersey Governor Jon Corzine signed into law a
measure called the “Bloodborne Disease Harm
Reduction Act,” making his state the last in the
nation to offer needle exchange programs for IV
drug users as part of a public health program to
stem the tide of HIV transmission through
shared IV works. The measure also provides
funds for new drug treatment facilities. Under
the law, up to six municipalities can establish
needle exchanges as part of a demonstration
project. Depending on the results, the measure
may be expanded in the future. New York Times,
Dec. 20. U.S. State News, Dec. 19. A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
Announcements
The Williams Institute at UCLA Law School
will hold its 6th annual update conference on
sexual orientation law and public policy on Friday, February 23, 2007, at the law school. The
full-day program will offer CLE credit for participating attorneys, and an international range
of scholars, judges and legal practitioners. For
more information, see the Institute’s website at
www.law.ucla.edu/williamsinstitute.
King’s College, London, will host a conference called Sex/Life/Politics in the British
World 1945–1969, to mark the 50th Anniversary in 2007 of the publication of the
Wolfenden Report, the ground-breaking governmental study that called for decriminalizing
consensual sodomy between adults and ultimately led to the repeal of such laws in England. The conference will be held at the College
on June 28–30, coincident with the annual gay
pride events in London on June 30. A call for
paper proposals for the conference has gone
out, with a February 28 submission deadline, to
[email protected]. Conference informa-
tion as it becomes available can be accessed at
www.wolfenden50.org.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Ake, Adam K., Unequal Rights: The Fourteenth
Amendment and De Facto Parentage, 81 Wash.
L. Rev. 787 (Nov. 2006).
Bala, Nicholas, The Debates About Same-Sex
Marriage in Canada and the United States:
Controversy Over the Evolution of a Fundamental Social Institution, 20 B.Y.U. J. Pub. L. 195
(2006).
18
Barraza, Matthew, Norman v. Anderson:
Utah Takes Its First Step in Defining the Limits
of Amendment 3 and Asks, Does Amendment 3
Prohibit Publicly Funded Benefits for Domestic
Partners?, 8 J. L. & Fam. Studies 395 (2006).
Black, D. Marisa, Beyond Child Bride Polygamy: Polyamory, Unique Familial Constructions, and the Law, 8 J. L. & Fam. Studies 497
(2006).
Brammer, J. Brady, Religious Groups and the
Gay Rights Movement: Recognizing Common
Ground, 2006 B.Y.U. L. Rev. 995.
Chan, Phil C.W., Not, It Is Not Just a Phase:
An Adolescent’s Right to Sexual Minority Identity under the United Nations Convention on the
Rights of the Child, 10 Int’l J. Hum. Rts. 161
(June 2006).
Charles, Casey, Panic in the Project: Critical
Queer Studies and the Matthew Shepard Murder, 18 L. & Literature 225 (2006).
Dodson, Scott, Constitutional Thematics and
the Peculiar Federal Marriage Amendment, 20
B.Y.U. J. Pub. L. 233 (2006).
Duncan, William C., Avoidance Strategy:
Same-Sex Marriage Litigation and the Federal
Courts, 29 Campbell L. Rev. 29 (Fall 2006).
Eastman, John C., Full Faith and Republican
Guarantees: Gay Marriage, FMPA, and the
Courts, 20 B.Y.U. J. Pub. L. 243 (2006).
Emerton, Robyn, Respecting Privacy and Affirming Equality: The Dual Significance of Leung v Secretary for Justice for Hong Kong’s Gay
Community, 36 Hong Kong L.J. 143 (2006).
Goldberg, Suzanne B., Constitutional Tipping Points: Civil Rights, Social Change, and
Fact-Based Adjudication, 106 Colum. L. Rev.
1955 (Dec. 2006).
Gudorf, Christine E., Book Review, Jordan,
Mark D., Blessing Same-Sex Unions: The Perils
of Queer Romance and the Confusions of Christian Marriage, 21 J. L. & Religion 445
(2005–2006).
Hsu, Kenneth K., Why the Politics of Marriage Matter: Evaluating Legal and Strategic
Approaches on Both Sides of the Debate on
Same-Sex Marriages, 20 B.Y.U. J. Pub. L. 275
(2006).
Jacobi, Tonja, How Massachusetts Got Gay
Marriage: The Intersection of Popular Opinion,
Legislative Action, and Judicial Power, 15 J.
Contemp. Legal Issues 219 (2006).
Kanter, Stephen, The Griswold Diagrams:
Toward a Unified Theory of Constitutional
Rights, 28 Cardozo L. Rev. 623 (Nov. 2006).
January 2007
Kendell, Kate, The Right to Marry and the
San Francisco Experience, 44 Fam. Ct. Rev. 33
(Jan. 2006).
McClain, Linda C., “God’s Created Order,”
Gender Complementarity, and the Federal Marriage Amendment, 20 B.Y.U. J. Pub. L. 313
(2006).
McClain, Linda C., The Evolution or End of
Marriage?: Reflections on the Impasse Over
Same-Sex Marriage, 44 Fam. Ct. Rev. 200
(April 2006).
Miller, C. Brett, Same-Sex Marriage: An Examination of the Issues of Due Process and
Equal Protection, 59 Ark. L. Rev. 471 (2006).
Morey, Maribel, The Civil Commitment of
State-Dependent Minors: Resonating Discourses That Leave Her Heterosexuality and His
Homosexuality Vulnerable to Scrutiny, 81
N.Y.U. L. Rev. 2129 (Dec. 2006).
Park, Mitchell F., Defining One’s Own Concept of Existence and the Meaning of the Universe: The Presumption of Liberty in Lawrence
v. Texas, 2006 B.Y.U. L. Rev. 837.
Posner, Eric A., and Cass R. Sunstein, The
Law of Other States, 59 Stan. L. Rev. 131 (Oct.
2006).
Redman, Daniel, “Where All Belong:” Religion and the fight fo LGBT Equality in Alabama,
21 Berkeley J. Gender L. & Just. 195 (2006).
Reinheimer, Justin, Same-Sex Marriage
Through the Equal Protection Clause: A
Gender-Conscious Analysis, 21 Berkeley J.
Gender L. & Just. 213 (2006).
Riggs, Robert E., The Supreme Court and
Same-Sex Marriage: A Prediction, 20 B.Y.U. J.
Pub. L. 345 (2006).
Rosato, Jennifer L., Preface: Special Issue on
the Evolution of Marriage, 44 Fam. Ct. Rev. 31
(Jan. 2006).
Scott, The Right Honorable the Lord Scott of
Foscote, Justice Randy J. Holland, and Chilton
Davis Varner, The Role of “ExtraCompensatory” Damages for Violations of Fundamental Rights in the United Kingdom & the
United States, 46 Va. J. Int’l L. 475 (Spring
2006).
Strasser, Mark, An Amendment to Protect
Marriage: Bad in Theory, Likely Worse in Practice, 20 B.Y.U. J. Pub. L. 387 (2006).
Talbot, Tyler, Reparative Therapy for Homosexual Teens: The Choice of the Teen Should be
the Only Choice Discussed, 27 J. Juv. L. 33
(2006).
Lesbian/Gay Law Notes
Tamar-Mattis, Anne, Exceptions to the Rule:
Curing the Law’s Failure to Protect Intersex Infants, 21 Berkeley J. Gender L. & Just. 59
(2006).
Tovino, Stacey A., Book Review, Tancredi,
Laurence R., Hardwired Behavior: What Neuroscience Reveals About Morality, 21 J. L. & Religion 479 (2005–2006).
Turk, Karen R., Always A Bridesmaid? Unveiling California’s Domestic Partner Laws, Including Their Impact on Real Property, 17
Miller & Starr, Real Estate Newsalert No. 3, 1
(Jan. 2007).
Wardle, Lynn D., Federal Constitutional Protection for Marriage: Why and How, 20 B.Y.U. J.
Pub. L. 439 (2006).
Wardle, Lynn D., The “End” of Marriage, 44
Fam. Ct. Rev. 45 (Jan. 2006).
Wintemute, Robert, Same-Sex Marriage:
When Will It Reach Utah?, 20 B.Y.U. J. Pub.
L.527 (2006).
Yap, Po Jen, Rethinking Constitutional Review in America and the Commonwealth: Judicial Protection of Human Rights in the Common
Law World, 35 Ga. J. Int’l & Comp. L. 99 (Fall
2006).
AIDS & RELATED LEGAL ISSUES:
Cameron, Edwin, Legal and Human Rights Responses to HIV/AIDS Epidemic, 2006 Stellenbosch L. Rev. 37 (2006).
Lenrow, David A., The Treating Physician as
Researcher: Is Assuming This Dual Role a Violation of the Nuremberg Code?, 25 Temple J.
Sci. Tech. & Envtl. L. 15 (Spring 2006).
Specially Noted — Symposium, The
Americans With Disabilities Act at 15
Past, Present & Future, 75 Miss. L. J. No.
4 (Spring 2006).
EDITOR’S NOTE:
All points of view expressed in Lesbian/Gay
Law Notes are those of identified writers, and
are not official positions of the Lesbian & Gay
Law Association of Greater New York or the LeGaL Foundation, Inc. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in
Lesbian/Gay Law Notes is welcome and will be
published subject to editing. Please address
correspondence to the Editor or send via email.