ONTARIO APPEAL COURT SAYS CHILD HAS TWO MOMS AND ONE...

February 2007
ONTARIO APPEAL COURT SAYS CHILD HAS TWO MOMS AND ONE DAD
On January 2, 2007, the Court of Appeal for
Ontario used its parens patriae jurisdiction to
interpret Canada’s Children’s Law Reform Act
(CLRA) to allow a child’s biological mother and
her lesbian partner to have simultaneous legal
parent status without extinguishing the parental rights of the child’s biological father. A.A. v.
B.B., [2007] O.N.C.A. 2 (Can.).
Appellant (A.A.) and her partner (C.C.) had
been in a committed relationship for nine years
when they decided to start a family. With the
help of a male friend (B.B.), C.C. became pregnant and gave birth to a baby boy in 2001. The
three agreed that appellant and her partner
would be the child’s parents, but that B.B.
would also play an active role in the child’s life.
In 2003, two years before Canada would legalize gay marriage, appellant sought a judicial
declaration that she, in addition to B.B. and
C.C., was the child’s legal parent. A.A. could
not seek to adopt the child, because an adoption would require one of the biological parents
to renounce their parental rights. The trial
judge held that, although A.A. was clearly a parental figure in the child’s life and had the support of both of the child’s biological parents,
under the CLRA, the court lacked jurisdiction
to decide the case. This decision rested on a
very limited and technical reading of the
CLRA, which would only permit a child to have
two legal parents.
Although the myriad legal issues arising
from child-rearing by gay parents were not contemplated at the time the CLRA was enacted,
Justice Marc Rosenberg, writing for the Court of
Appeal, noted that the ultimate purpose of the
CLRA was to “declare positively that all children have equal status in law.” The court recognized that the vast changes in reproductive science and social conceptions of family have
created gaps in the CLRA. These gaps leave
room for the court to use its parens patriae jurisdiction to interpret the CLRA in accord with
contemporary notions of family.
Justice Rosenberg wrote that the CLRA is a
progressive piece of legislation, which invites
broad interpretations in order to serve the best
interests of children. Part II, Section 4(1) of the
CLRA states that “[a]ny person having an inLESBIAN/GAY LAW NOTES
terest may apply to a court for a declaration that
a male person is recognized in law to be the father of a child or that a female person is the
mother of a child.” This broad provision gives
the court latitude in determining parental rights
far beyond consanguineous affiliations. Rosenberg used this text to buttress the argument that
the legislature intended the CLRA to include
unforeseen forms of parentage to ensure that all
children are recognized and protected under
the law.
Ultimately, the court held that it would not be
in the child’s best interest to lose the parentage
of either of his biological parents, and it would
be equally contrary to the child’s best interests
“that he is deprived of the legal recognition of
the parentage of one of his mothers.” Therefore,
the court ordered that appellant be declared a
legal mother of the child without diminishing
the status of either biological parent. Ruth Uselton
LESBIAN/GAY
LEGAL NEWS
Michigan Appeals Court Finds Constitutional
Ban on Partner Benefits
When Michigan voters approved a state constitutional amendment to ban same-sex marriage
in 2004, they were assured by its sponsors that
it was not intended to affect domestic partnership benefits provided by some municipalities
and public universities in the state, but that
made no difference to a unanimous three-judge
panel of the state’s Court of Appeals, which
ruled on February 2 in National Pride at Work,
Inc. v. Governor of Michigan, No. 265870, that
the amendment makes such benefit plans illegal. The ACLU of Michigan, representing the
plaintiffs, will appeal the ruling.
The ruling, in an opinion by Justice Kurtis T.
Wilder, reversed an opinion that Ingham
County Circuit Judge Joyce Draganchuk issued
in September 2005. The court of appeals’ ruling is based on a hyperliteral reading of the
voter-initiated amendment, whose wording differs from every other marriage amendment
February 2007
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013, 212–431–2156, fax 431–1804; e-mail: [email protected] or
[email protected]
Contributing Writers: Christ Benecke, NYU Law Student; Glenn Edwards, Esq., New York City; Alan J. Jacobs, Esq., New York City; Bryan Johnson, NYLS ‘08;
Sharon McGowan, Esq., New York, N.Y.; Tara Scavo, Esq., New York City; Jeff Slutzky, Esq., New York; Ruth Uselton, NYLS ‘08; Eric Wursthorn, NYLS ‘08.
Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212–353–9118; e-mail: [email protected]. Inquire for rates.
LeGaL Homepage: http://www.le-gal.org
Law Notes on Internet: http://www.nyls.edu/pages/3876.asp; http://www.qrd.org/qrd/www/usa/legal/lgln
©2007 by the LeGaL Foundation of the LGBT Law Association of Greater New York
ISSN 8755–9021
passed in recent years, and contains a curious
loophole that might make benefits available,
but only if the government employer is willing
to embrace eligibility requirements that do not
depend upon documenting an interdependent
relationship between the employee and the
designated benefits recipient.
The amendment, now identified as Article 1,
Section 25, of the Michigan Constitution,
states: “To secure and preserve the benefits of
marriage for our society and for future generations of children, the union of one man and one
woman in marriage shall be the only agreement
recognized as a marriage or similar union for
any purpose.” This language was drafted by a
private group and placed on the ballot through
petitioning, and nobody was really sure how far
it would extend in affecting existing arrangements or banning new ones.
After the amendment went into effect, the
city of Kalamazoo, which had been negotiating
with a municipal union over domestic partnership benefits, asked Attorney General Michael
A. Cox for an opinion about whether such a plan
would be legal. Cox issued a formal opinion on
March 16, 2005, interpreting the amendment
as banning any state action or policy that would
accord any “acknowledgment” to an unmarried
relationship between adults, whether same-sex
or opposite sex, for any purpose. On that basis,
the city of Kalamazoo indicated it would not extend benefits, and a tentative agreement on
benefits worked out between the state government and a union representing many of its employees was also shelved.
National Pride at Work, the LGBT-interest
affiliate of the AFL-CIO joined with a group of
state employees and filed suit, represented by
the ACLU of Michigan, seeking a judicial declaration that existing domestic partnership
benefits plans remained lawful, and that new
ones could be established. Their main argument, accepted by Judge Draganchuk, was that
providing insurance benefits does not run afoul
of the amendment because “health care benefits for a spouse are benefits of employment, not
benefits of marriage.”
“If the employers in this case were recognizing a marriage or similar union, then they would
be prohibited from doing so for any purpose,”
wrote Judge Draganchuk. “However, ... this
Court cannot conclude that the employers are
recognizing a marriage or similar union. On the
facts of this case, the ‘for any purpose’ language
does not apply.” Attorney General Cox
promptly appealed the decision.
Justice Wilder, after pointing out that Michigan’s amendment differed in wording from all
the other such amendments that have been
20
adopted so the court lacked any guidance from
other courts in its interpretive task, asserted
that “the provision must be examined as a
whole,” and argued that “Plaintiffs’ emphasis
on the statement of purpose ignores the provision’s mandate: that only one ‘agreement’ —
the union of one man and one woman in marriage — may be recognized as a marriage or
similar union for any purpose. The operative
language of the amendment plainly precludes
the extension of benefits related to an employment contract, if the benefits are conditioned on
or provided because of an agreement recognized
as a marriage or similar union.” (emphasis in
original)
The court noted that the various domestic
partnership benefit plans that had been introduced in evidence had several common features leading it to believe that they were based
on an “agreement” between the partners. “The
trial court erred in ignoring the significance of
the term ‘agreement’ in the marriage amendment,” wrote Wilder. “Three of the four plans
provided in the record ... require the domestic
partners to have registered, declared, signed or
filed a domestic partnerships agreement to establish entitlement to benefits. A public employer that requires proof of the existence of a
formal domestic partnership agreement to establish eligibility for benefits ‘recognizes’ the
validity of a same-sex union as reflected in the
‘agreement’ for the ‘purpose’ of providing the
same benefits to a same-sex couple that would
be provided to a married couple. This violates
the plain language of the amendment prohibiting such unions to be ‘recognized...for any purpose.’”
Wilder asserted that the language of the
amendment was not ambiguous, and so evidence of the intentions stated by its proponents
was irrelevant to its interpretation. He also said
that amicus briefs describing the adverse consequences that would accrue to the state were
the amendment to be construed to bar partner
benefits plans were not relevant to the court’s
consideration, because the people of Michigan
had made their policy choice by adopting the
amendment.
Thus, Wilder concluded, “By recognizing a
domestic partnership agreement for the purpose of providing benefits, the state plan and
the plans of the University of Michigan, Michigan State University and the City of Kalamazoo,
run directly afoul of the plain language of the
amendment.” Any partner benefits plan that
relies for its administration on proof by the employee and the partner that they have an agreement to be “jointly responsible for basic living
and household expenses” would, in the eyes of
the court, constitute “recognition by the public
employer of a ‘similar union for any purpose.’”
The court rejected a variety of subsidiary arguments about the autonomy of cities or the
universities in making their employment poli-
February 2007
cies, and also rejected the argument that the
amendment should not be interpreted this way
to avoid depriving same-sex couples of equal
protection of the law, guaranteed in Article 1,
Section 2 of the state constitution. “It is a cornerstone of a democratic form of government to
assume that a free people act rationally in the
exercise of their power, are presumed to know
what they want, and to have understood the
proposition submitted to them in all of its implications, and by their approval vote to have determined that the proposal is for the public good
and expresses the free opinion of a sovereign
people,” Wilder asserted.
“Interpreting the marriage amendment together with the equal protection clause, so that
neither is read as nullifying or impairing the
other, we conclude that, consistent with the
state’s long public policy tradition of favoring
the institution of marriage, the marriage
amendment’s purpose, ‘to secure and preserve
the benefits of marriage for our society and for
future generations of children...’ is neither arbitrary nor invidious on its face.” Wilder rejected
the argument that the marriage amendment
“targets same-sex couples for loss of protection
under state law,” observing that unmarried
opposite-sex couples are also excluded from
any recognition as a couple for purposes of getting employment-related benefits from the government.
In a puzzling throw-away line, Wilder wrote,
“The amendment as written does not preclude
the extension of employment benefits to unmarried partners on a basis unrelated to recognition
of their agreed-upon relationship. In this regard, the amendment is narrowly tailored to further the legitimate governmental interest in
protecting and strengthening the institution of
marriage, and not to arbitrarily or invidiously
exclude individuals from the protections of the
laws of this state.” So saying, Wilder commented that Romer v. Evans, the 1996 U.S. Supreme Court decision striking down Colorado
Amendment 2, is “distinguishable.”
Presumably, these final lines leave it open to
the state to provide benefits under some
mechanism that does not require employees to
assert that they have some kind of agreement
with their partners. Although the appeals court
reversed the lower court’s ruling, that merely
means at this point that the declaratory judgment issued by the trial court is vacated. The
state, the city of Kalamazoo and the universities
could, under this reading, find an alternative
way to provide the benefits by restructuring the
requirements of their plans, perhaps by basing
eligibility entirely on cohabitation, although
that would have the financial disadvantage of
extending benefits more broadly than some
public employers might deem affordable.
A.S.L.
Lesbian/Gay Law Notes
9th Circuit Grants Review of Mexican
Transsexual’s Asylum Claim
The U.S. Court of Appeals for the 9th Circuit
has granted a petition for review of the decision
of the Board of Immigration Appeals (BIA) on
Mexican male-to-female transsexual Nancy
Arabillas Morales’ claim for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) in Morales v.
Gonzales, 472 F.3d 689 (9th Cir., Jan. 3, 2007).
Morales, born Juan Manuel Arabillas Morales, began using the name Nancy and dressing as a woman at age 14 when she moved out of
her abusive family’s home. She was arrested for
working in a bar as a minor and placed in jail,
where prison officials laughed and ignored her
cries for help while she was raped by several inmates. When she attempted to cross the
U.S.-Mexico border, Morales was attacked and
raped by seven men. She did not report the incident to the police for fear of being beaten or
forced to pay a bribe. Morales eventually fled to
the United States, where she has lived since
1986.
In April 2002, Morales was convicted of
communication with a minor for immoral purposes. She had also been charged with third degree rape of a child and third degree child molestation, but was convicted only of
communication with a minor. The Department
of Homeland Security placed Morales in removal proceedings for being illegally present
within the United States, and also for having
been convicted of a crime “involving moral turpitude.” Morales applied for asylum, withholding of removal, and protection under CAT, all of
which were denied.
Morales appealed the decision of the Immigration Judge (IJ) denying her asylum, withholding of removal, and relief under CAT. The
Board of Immigration Appeals summarily affirmed the decision, and Morales appealed the
decision.
Senior Circuit Judge David R. Thompson,
writing for the court, held that the IJ had incorrectly relied on facts that did not relate to the
crime for which Morales was convicted that
were contained in the appellate court’s opinion
affirming her conviction of communication with
a minor, to determine that Morales had committed a “particularly serious” crime. The IJ had
concluded that Morales would have been eligible for asylum and withholding of removal, “but
for [the] finding that she had been convicted of
a particularly serious crime.”
Judge Thompson also held that the IJ had
failed to apply the correct legal standard to Morales’s CAT claim, because the IJ had only
taken into consideration testimony establishing
“direct government action”, but had ignored
the “willful blindness” of the prison officials
who had watched and laughed at Morales while
Lesbian/Gay Law Notes
she was repeatedly raped by fellow prison inmates.
Accordingly, Judge Thompson remanded the
case to the Board of Immigration Appeals to remand to the IJ to determine whether Morales
had committed a “particularly serious” crime
barring her from an otherwise eligible asylum
claim, and to consider the “willful blindness”
of prison officials in establishing whether it was
“more likely than not” that Morales would be
tortured if she were returned to Mexico. Bryan
Johnson
Gay Guatemalan Wins New Hearing From 6th
Circuit on Claim for CAT Protection
Ruling on an appeal from the Board of Immigration Appeals (BIA), a three-judge panel on
the U.S. Court of Appeals for the 6th Circuit denied an asylum petition from a gay Guatemalan
refugee who feared persecution in his home
country, but the panel kept alive his claims for
withholding of removal and for protection under the United Nations Convention Against Torture (CAT). Grijalva v. Gonzales, 2007 WL
62656, 2007 Fed. App. 0017N. (Jan. 8, 2007).
Jose Antonio Grijalva claimed that he had
been persecuted and abused in Guatemala, his
home country, because he was an effeminate
gay man. He claimed that he had been very effeminate since childhood. According to his testimony, he moved in with his grandmother after
being rejected by his stepfather and he dropped
out of school at a young age due to abuse. At age
18, Grijalva left his grandmother’s home and
began selling fruit and vegetables in a market.
He chose this work because he hoped it would
be safe work for him as a homosexual, as most of
the customers were female and there were other
gay male vendors at the market. He worked
during the daytime and never went outside at
night.
At age 25, he tried to expand his business by
selling grilled meats in late afternoons and
early evenings and on weekends. At these
times, there were more male customers. From
then on, every two or three weeks for two years,
one or more men would throw his supplies and
food to the ground and taunt him with anti-gay
obscenities. At least three times, he was beaten.
Grijalva complained to the police, who, instead
of protecting him, cursed him and told him that
the attacks were his fault for being gay. At age
27, he gave up selling grilled meats and returned to selling fruit during the day.
At one point, another gay vendor accused
Grijalva of having a relationship with his lover
and threatened to kill him or have others attack
him. Once again, he complained to the police
and the police did nothing because, they
claimed, it was his fault for being gay and not
working in a real man’s job. Grijalva then sold
his business and hid in his rented room for a
February 2007
year before returning to his grandmother’s
home at age 30.
After three months, Grijalva went to Mexico
to find safer work. He was fired from a banana
plantation after six months because the manager said he wanted only “machos” working for
him and not “faggots.”
Grijalva decided to return to his grandmother’s home. On the trip, the truck carrying
him was stopped by Guatemalan guerrillas who
forced Grijalva and the other passengers off the
truck by gunpoint and made them all lie face
down on the ground while they checked their
papers. The guerrillas noticed Grijalva’s long
hair and effeminate manner and threatened to
rape him, although they did not do so.
After about two months back at his grandmother’s house, he returned to Mexico and
found work packing bananas. After a year he
had to leave Mexico because he was found to
have no papers and to be working illegally. On
the way back to Guatemala, the truck carrying
him was stopped by Guatemalan soldiers. The
soldiers opened Grijalva’s pocketbook and saw
his makeup and skin creams. Although they let
the other passengers leave, they took Grijalva
with them to their camp.
At the camp, Grijalva was locked in a room
for three days and nights and was gang raped by
groups of soldiers while they yelled anti-gay obscenities at him. He thinks he was raped about
two or three times a day by about 30 soldiers in
all. The attacks left him in pain and humiliated.
After three nights the soldiers let him go,
dumping him in the road in his underwear
along with his clothes. He returned to his
grandmother’s home but didn’t report the rapes
because the soldiers had threatened to kill him
if he made a report. He also feared that the police were on the same side as the soldiers. The
rapes left him with nightmares and anxiety. For
the next four years he remained inside his
grandmother’s home as much as possible and
sold food to neighbors.
In 1994, with his grandmother getting old,
Grijalva realized she would soon be unable to
protect him. He decided to escape to the U.S.
He left Guatemala in November 1994 and arrived in San Ysidro, California, in December
1994. Since arriving in the U.S., he has not had
to fear being killed for being a gay man.
In October 1995, Grijalva filed an application for asylum and relief under the CAT, but
the application did not mention his sexual orientation; instead, it stated that Grijalva was
threatened by guerilla groups that he refused to
join. He failed to appear at his asylum interview, never having received notice because he
had moved without reporting a change of address. The INS began deportation proceedings
in March 1997. An order to show cause was
filed against Grijalva requiring him to show
why he should not be deported for being an illegal alien.
21
In December 1997, Grijalva filed a new asylum application, this time with an attorney’s
help. This second application stated that Grijalva sought asylum because he had been persecuted and abused for being an effeminate gay
man.
Proceedings on the order to show cause were
held on several dates in 1997, 1998 and 2003.
(It is not clear what accounts for the five-year
gap in hearing dates.) Finally, on August 13,
2003, the immigration judge (IJ) issued an order denying Grijalva’s claims for asylum and
relief under the CAT, finding that Grijalva was
not a credible witness due to inconsistencies in
his applications and testimony. First, the 1995
application did not mention the rapes or Grijalva’s sexual orientation. Second, while Grijalva
testified that the gang rapes occurred in 1994,
the 1997 asylum application stated that they
occurred in 1990; Grijalva also told a doctor
they occurred in 1990. The IJ found this fouryear discrepancy to be significant.
Although the IJ was convinced that Grijalva
was an effeminate homosexual and noted that
effeminate homosexuals had been recognized
as a “particular social group” for the purposes
of defining a refugee under 8 U.S.C. §
1101(a)(42)(A) (see Matter of Toboso-Alfonso,
20 I & N Dec. 819, 822–23 (BIA 1990)), he denied the application for asylum because he was
not convinced that Grijalva had been gangraped or persecuted because of his orientation
or that his application merited a favorable exercise of discretion. The IJ also denied Grijalva’s
application for relief under the CAT because he
was not convinced that Grijalva would be subject to government-sponsored torture if he returned to Guatemala.
Nevertheless, the IJ determined that it was
more likely than not that Grijalva would be at
the very least persecuted if he returned to Guatemala, so he granted the application for a withholding of removal. This decision rested heavily on an affidavit by Andrew Reding, Senior
Fellow for Hemispheric Affairs at the World
Policy Institute at New School University in
New York City, who was completing a report
commissioned by the Department of Homeland
Security (DHS), “Treatment of Lesbian, Gay,
Bisexual, and Transgendered Persons in Latin
American and the Caribbean.” Reding’s report
stated that Guatemala had become a “killing
zone” for effeminate gay men; that openly gay
men were “ending up dead on the streets as the
deliberate victims of ‘social cleansing’ campaigns”; that the Guatemalan government has
“turned a deliberate blind eye to the activities
of vigilantes who conduct ‘social cleansing’
campaigns against homosexuals”; that homosexuals are “widely reviled among the Guatemalan public, and the Guatemalan government
has no incentive or desire to bring the murderers to justice”; that except for the murder of U.S.
journalist Larry Lee, “the government has not
22
investigated or prosecuted any of the cases in
which a homosexual has been murdered”; that
an effeminate gay man would be “subject to
violence and possible execution no matter
where he lived in that country”; and that “Guatemala would be one of the most difficult places
for a homosexual to survive.”
Both Grijalva and the DHS appealed to the
BIA. Grijalva argued that the IJ erred in his adverse credibility determination and denial of
his application and that he was denied due process because of inadequate translation at the
deportation hearing. The DHS argued that the
IJ erred in granting the application for withholding of removal because Grijalva had not established that he was more likely than not to be
subject to persecution in Guatemala because of
his homosexuality.
First, the BIA found that the IJ’s adverse
credibility determination was not clearly erroneous, and it affirmed the denial of asylum.
On the other hand, the BIA found erroneous
the IJ’s determination that Grijalva was eligible
for withholding of deportation. To qualify for
such relief, an alien must establish that it is
more likely than not that he would be subject to
persecution in the country designated for deportation. Establishment of past persecution
generally creates such a presumption, but because the IJ had found that Grijalva failed to
show past persecution because of his homosexuality, the BIA found he was not entitled to a
presumption that his life would be threatened
in the future for that reason. Examining the
Reding affidavit, the BIA found it insufficient to
“show a pattern and practice adopted by the
government towards homosexuals.” The BIA
thus concluded that the IJ had erred in granting
Grijalva’s application for withholding of deportation.
Finally, the BIA rejected Grijalva’s due process arguments as meritless, finding that (1) the
interpreter errors were insignificant; (2) Grijalva failed to establish that the IJ’s decision
was based on interpreter errors or that he was
prejudiced; (3) Grijalva’s counsel never requested a different interpreter; and (4) there
was no evidence of bias on the part of the IJ.
On appeal to the 6th Circuit, Grijalva argued
that (1) the BIA erred in upholding the IJ’s finding that Grijalva lacked credibility; (2) the BIA
erred in reversing the IJ’s grant of his request
for withholding of removal, and (3) he was denied due process at his immigration proceedings because of interpreter error and misconduct by opposing counsel.
The court upheld the BIA’s ruling on credibility, noting that the standard of review regarding credibility is highly deferential and that the
subject of the inconsistencies goes to the heart
of the matter, the alleged persecution. The court
also found no error in the IJ’s ruling that because of credibility issues, Grijalva did not
February 2007
merit a favorable exercise of discretion by the
Attorney General.
Turning to the claims for withholding of removal and for protection under the CAT, however, the court vacated the BIA’s decision and
remanded the case to the BIA for reconsideration of those claims.
The key error, the court stated, was the BIA’s
ruling that Grijalva was required to show a pattern and practice of persecution “adopted by
the government.” Withholding of deportation is
mandatory if an alien can show “clear probability of persecution,” but it need not be shown
that the government itself is responsible for the
persecution; it is enough to show that the government “is unable or unwilling to control the
group responsible.” Patel v. INS, 22 F. App’x
478, 480 (6th Cir.2001) (per curiam). The court
noted that according to Reding’s report, “the
Guatemalan government has turned a deliberate blind eye toward vigilantes who conduct social cleansing campaigns against homosexuals
in that country and has no incentive or desire to
bring them to justice.” The court also cited a
U.S. State Department letter contained in the
court record noting that, in the court’s phrasing,
“Guatemalan police reflect that country’s cultural bias against homosexuals, including those
who may be victims of police harassment and
extortion.”
Similarly, the court stated, withholding of removal should be granted under the CAT if the
applicant can show that he would be subjected
to an act of torture upon returning to his home
country. Torture is “inflicted by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). “Willful blindness” falls within the definition of “acquiescence.” Amir v. Gonzales, 467 F.3d 921,
927(6th Cir. 2006). The court stated that the
BIA erred in failing to consider this definition
of acquiescence by the Guatemalan government in light of the Reding affidavit and the
State Department letter.
Finally, turning to Grijalva’s due process
claims, the court found these meritless. Regarding interpreter error, the court noted that
Grijalva had signed the 1995 application after
it was read to him, that any interpreter error was
insignificant, and that in any case, his attorney
had not requested a different interpreter and
that the matter was not raised until the appeal to
the BIA. The court also found no evidence of
misconduct by government counsel or of judicial bias.
As a result of the decision, then, Grijalva still
maintains hope of winning his remanded
claims before the BIA for withholding of removal and for protection under the CAT. Jeff
Slutzky
Lesbian/Gay Law Notes
Philadelphia Anti-Gay Demonstrators Lose First
Amendment Claim; Similar San Diego Ruling
Favors School District in Continuing T-Shirt
Dispute
A group of religious anti-gay demonstrators
who were arrested for their disruptive activities
during a Gay Pride street fair in Philadelphia in
2004 have lost their federal free speech lawsuit. In Startzell v. City of Philadelphia, 2007
WL 172400 (E.D.Pa., Jan. 18, 2007), U.S. District Judge Lawrence Stengel found that the police had acted appropriately to preserve public
order and the free speech rights of the organizers of the Gay Pride fair. A week later, in Harper
v. Poway Unified School District (S.D.Cal., Jan.
24, 2007), District Judge John Houston applied
similar principles to reassert last year’s ruling
by the 9th Circuit, 445 F.3d 1166 (2006), that
the district could forbid religiously-inspired
students from wearing anti-gay slogans on tshirts at school.
The incidents leading to the Philadelphia arrests arose out of a recurring issue in that city,
where a group of “Christians who believe that
homosexual behavior is sinful” felt strongly
called to attend public gay events “to warn others about the destructiveness of sin through
public proclamations of the gospel of Jesus
Christ.” According to Judge Stengel’s opinion,
these individuals “communicate their message
by displaying signs, offering literature, and engaging in open air preaching that includes talking to people about the Scriptures, praying,
singing, playing music and worshiping.”
Their activities were centered on outdoor
events produced by Philly Pride Presents, Inc.,
the community group that organizes the Philadelphia Pride Day in June and the OutFest
street fair in October, in connection with National Coming Out Day. In 2004, Outfest was
planned to occupy fifteen city blocks in an area
informally known as the Gayborhood because
of its high concentration of gay residents and
gay-owned or associated businesses. Philly
Pride obtained a police permit that allowed
them to mount a street fair that required the closure of many streets to traffic and created an enclosed area to control admission and maintain
security. Among the co-sponsoring organizations for Outfest were Christian community
groups that support LGBT rights.
Due to their past experiences with religious
demonstrators, Philly Pride’s attorney wrote to
the police department, asserting the right of
Philly Pride to “maintain the integrity of OutFest’s message” by excluding anti-gay protesters from the area covered by the police permit
during the fair. The letter suggested that “preventing anti-LGBT protestors from entering the
permitted area during the OutFest block party
will protect all persons and will minimize the
City’s exposure in the unfortunate event of any
incidents related to the protestors. It will also
Lesbian/Gay Law Notes
uphold Philly Pride’s constitutional right to
control its message of LGBT pride and equality.”
The irony of this is clear. The letter relied
upon the Supreme Court’s 1995 decision, Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, 515 U.S. 557, upholding the
right of St. Patrick’s Day parade organizers in
Boston to exclude a gay Irish group from participating in the parade, on the theory that the
organizers had a right to control the message
being conveyed to marchers and onlookers by
the parade. Now Philly Pride was asserting the
same right, to preserve the pro-gay message of
OutFest by excluding protestors.
The police rejected this request, informing
Philly Pride that the protestors would be allowed in the permitted area. Philly Pride then
obtained volunteers to serve as “human buffers” between the protestors and the gay folks
who would be attending OutFest and informed
the police they would be doing this. The police
took no position on whether they would allow
the human buffers to block the protestors from
communicating to other fair-goers, but said
they would make decisions on the spot based on
the need to protect public order and safety.
In the event, the protestors were allowed to
enter OutFest, were met by human buffers, insisted on mounting their protests, inspired angry reactions from the crowd, and soon the police had a potential mess on their hands. They
instructed the protestors to move to an area on
the fringes of OutFest, near a popular gay bar,
because they were blocking access to the vendor booths and other OutFest events. When the
protestors refused to move as instructed by the
police, they were arrested for disorderly conduct, disobeying a police officer, and other public order charges. One of the protestors lay on
the ground and had to be forcibly moved by police officers. The protestors, who became the
plaintiffs in the lawsuit, had been at OutFest for
less than half an hour when they were arrested.
They were held in the city jail for 21 hours before being released, and criminal charges were
eventually dropped.
The protestors claimed that their civil rights
had been violated by the police actions. According to Judge Stengel, “Plaintiffs’ view of
this case is simplistic. They claim a freedom of
speech without limits. They contend that they
attempted to speak on the public streets of
Philadelphia and were discriminated against
based on the content of their speech.” But,
wrote Stengel, “The plaintiffs ignore the context of their actions and advance a constitutional argument untethered to the facts of this
case. The activity in question took place in a
public forum. There is no doubt that the venue
for Outfest, a designated section of the streets
and sidewalks of Philadelphia, was a public
place. However, the First Amendment discussion does not stop with the recognition that the
February 2007
plaintiffs were speaking in public. The government has a limited ability to restrict free speech
rights, even in a public forum. It is a wellsettled rule that the government may enforce
reasonable time, place, and manner regulations
as long as the restrictions ‘are content-neutral,
are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.’”
Judge Stengel found that the police response
to the plaintiffs’ action was “a response to context, not content.” Philly Pride had a police permit to conduct an activity that would affect traffic flow. The protestors, on the other hand, had
not sought any police permit. They just showed
up and asserted their right to protest against homosexuality in the midst of a Gay Pride street
fair. “Permitting schemes have long been recognized as a content neutral method for allocating free speech rights in the public forum,”
Judge Stengel explained. “These schemes prevent diverse groups with different messages
from expressing their views simultaneously,
thus creating “a cacophony where no one’s
message is heard’ and further enforce that one
individual has no right to drown out the message of another.” Stengel found that “issued
permits can be enforced to protect the permitted message even if this excludes other messages.”
The court pointed out that this was not a case
of prior restraint of speech, because the police
had specifically rejected Philly Pride’s request
to bar the protestors from entering OutFest. The
city’s position was that so long as they did not
present a public order problem, anybody was
free to attend an event held on public property.
It was only when things threatened to get out of
hand due to the protestor’s “in your face” antigay activities in the midst of a Gay Pride block
party that the police took action, and the protestors would not have been arrested had they
promptly complied with the police request that
they move their activities to a different location
to diffuse the tension.
Stengel pointed out that the protestors were
free to seek a police permit to hold a demonstration, but had failed to do so. “This is an alternative plaintiffs did not even attempt to implement in seeking to have their message
expressed in counterpoint to OutFest,” he commented. “Further, since OutFest was held in a
well-defined section of Philadelphia, plaintiffs
could have communicated their message from
outside of the permitted area to individuals as
they entered and left the event.”
Stengel concluded that the police were
merely imposing reasonable time, place and
manner restrictions, which governments may
do on a content-neutral basis. He also rejected
the argument that there was no “probable
cause” for the arrest of the protestors, pointing
to their failure to cooperate with the police
23
when it appeared that things were getting out of
hand.
Stengel’s January 18 ruling anticipated a decision on the other side of the country, in San
Diego, California, a week later, by U.S. District
Judge John Houston, in the continuing battle
over the refusal of officials at Poway High
School to allow a Christian fundamentalist student to wear an anti-gay t-shirt to school. Last
year, the U.S. Court of Appeals for the 9th Circuit ruled that the free speech rights of students
could be curbed by the school both to preserve
order and to protect the rights of gay students to
be free of harrassment at school. The case was
sent back to the trial court in San Diego for final
disposition.
Tyler Harper, the student at issue, had graduated, and Judge Houston considered his complaint to be moot, but Tyler’s younger sister,
Kelsie, also a student at the school, indicated
that she also wanted to wear a t-shirt signaling
Biblical condemnation of homosexuality, so
Judge Houston decided that there was still a
live legal controversy. He went on to conclude
that the school was entitled to forbid Kelsie to
wear the shirt, on the same grounds specified
by the appeals court.
A published opinion by Judge Houston is not
yet available. His disposition of the case was
reported by the Union-Tribune on January 24.
The Harpers have asked the U.S. Supreme
Court to review the 9th Circuit ruling, and a decision on their petition for review is expected
soon. This is just one of several lawsuits that
have arisen around the country in response to
self-proclaimed religious students who want to
wear anti-gay slogans on their clothing in response to National Coming Out and National
Day of Silence observances held at public high
schools in support of equality for gay students.
A.S.L.
Maine High Court Orders New Hearing on Gay
Adult Adoption Dispute
The Supreme Judicial Court of Maine has given
Patricia Spado a renewed chance to fight for her
share of a multi-million dollar inheritance as
the adopted daughter of her former partner, Olive Watson. At stake are funds held in trust for
the children and grandchildren of Thomas
J.Watson, Jr., Olive’s father, who was largely responsible for the success of IBM Corp. The
trustees of the funds had won a default judgment against Spado, annulling the adoption and
cutting off Spado’saccess to the funds. On January 9, 2007, that judgment was vacated by
Maine’s highest court in In re Adoption of
Spado, 912 A.2d 578, 2007 ME 6.
In 1991, Olive Watson, then 43 years of age,
adopted 44–year-old Spado, her partner of 22
years, in Knox County, Maine, where the two
were summering at Watson’s vacation home.
Both women claim the adoption was their part-
24
ner’s idea, though that issue did not play a part
in the Maine Supreme Court’s opinion. The
couple separated one year after the adoption,
and Spado signed an agreement releasing her
rights as an adopted member of Watson’s family
in exchange for roughly half-a-million dollars.
Watson later began a new relationship and went
on to become a board member of the Empire
State Pride Agenda, a New York State LGBT
rights organization.
After both of Watson’s parents passed away,
Spado notified the trustees of her interest in the
trust as Watson’s adopted daughter and the
elder Watson’s grandchild. The trustees subsequently filed an action to annul the 1991 adoption, claiming the Knox County court did not
have jurisdiction over Spado, who was not a
resident but merely vacationing, and that the
adoption was not intended to establish a “normal parent-child relationship” but rather was
for Spado’s financial benefit.
Maine law requires that when filing for annulment of an adoption, notice must be given to
the adoptee and the adoptee’s biological parents stating that a written reply is required
within 20 days of receiving notice. The trustees
failed to send the correct form, instead sending
notice of the court date with the following statement: “You may also file written objections to
the petition, but the filing of such written objections will not substitute for appearance at the
hearing unless the court so orders.” When
Spado appeared on the hearing date, more than
20 days after receiving notice, the trustees objected to her appearance, stating that she failed
to file a written reply within the 20–day limit.
Spado filed two days later, against which the
trustees objected and moved for default judgment. The probate court disregarded Spado’s
reply and entered the default judgment, ruling
that notice had been “fairly given,” and that
use of the wrong form for notice did not release
Spado from her obligation to respond within 20
days. (The trustees also failed to notify Spado’s
biological mother of the proceeding prior to the
hearing, an omission the trial court deemed
harmless error. This determination was not reviewed on appeal.)
The Supreme Judicial Court of Maine vacated the default judgment. After reviewing the
process required in annulment of adoption proceedings, the court determined that the notice
given Spado was “plainly insufficient.” In determining whether the insufficient notice warranted lifting the default judgment, the court affirmed “a strong preference in our law for
deciding cases on the merits.” Not only had
Spado complied with the incorrect procedure
given, but she had brought the insufficient notice to the probate court’s attention. Therefore,
the probate court’s conclusion of default “was
error as a matter of law.” The case has been remanded for further proceedings.
February 2007
The trustees have also challenged Spado’s
claim to the trust money in Connecticut, where
their likely focus is on the couple’s separation
agreement and challenging the inclusion of an
adopted adult grandchild in the group of trust
beneficiaries. The trustees were initially successful, according to press reports, but the case
is on appeal. Watson has adopted two children
since her separation from Spado. Chris Benecke
Rhode Island Supreme Court Orders Family Court
Fact-Finding and Decision-Making on Divorce
Matter
The Rhode Island Supreme Court issued a written order in Chambers v. Ormiston, No.
2006–340 (Fam. Ct. 06–2583), on January 17,
declining to answer the Family Court’s certified
question as to whether it had jurisdiction to
hear a divorce complaint from a same-sex couple “lawfully married in the Commonwealth of
Massachusetts” who are domiciled in Rhode
Island. The Court, which noted that it had considered the “Request for Certification” from the
Family Court at two conferences (on January 4
and January 10), decided that it would be “premature” to respond given the current state of
the record in the case.
According to news reports, Margaret Chambers and Cassandra Ormiston were married in
Massachusetts and are residents of Rhode Island. Chambers is seeking a divorce. The Massachusetts Family Court would not have jurisdiction to grant a divorce unless one of the
women was a resident of Massachusetts.
The court stated that its “ability to decide
how best to deal with this particular certified
question is dependent upon the compilation of
a fuller factual record.” In particular, based on
the long list of questions the court has asked the
Family Court to address, they are determined to
avoid answering this question unless the facts
are assembled to determine a variety of ancillary facts that could be used to dispose of the
case without having to rule on the ultimate
question of jurisdiction. For example, they want
the Family Court to determine whether a valid
marriage license was issued in Massachusetts
and the marriage ceremony was properly performed and all relevant documents completed
and filed with appropriate government offices.
They want to know whether Chambers and
Ormiston were Massachusetts residents at the
time of the marriage, or whether they were
Rhode Islanders who went to Massachusetts to
marry and then returned home to Rhode Island.
They want to know whether both parties are
really current Rhode Island residents. In short,
they want to have every technicality explored
that might provide a basis for avoiding the ultimate question.
In addition, the court wants the Family Court
judge to take the first crack at addressing certain important legal issue, including whether
Lesbian/Gay Law Notes
there is an actual case or controversy here,
whether the U.S. Constitution’s Full Faith and
Credit Clause would mandate a particular result, and whether the federal Defense of Marriage Act “is pertinent to the instant case.”
Rhode Island is one of only a handful of states
that has not enacted its own Defense of Marriage Act, and a Massachusetts Superior Court
Judge ruled last year that in light of the existing
statutory scheme in Rhode Island, that was the
only state whose residents would be entitled to
have a same-sex marriage in Massachusetts,
under an old statute providing that marriage licenses could not be issued to non-resident couples whose home state would not recognize the
marriage as valid. Cote-Whitacre v. Department
of Public Health, Civil Action No. 04–2656
(Sup. Ct. Suffolk Co. Sept 29, 2006).
The court also objected to the wording of the
“Request for Certification,” instructing the
Family Court judge to “reword said Request to
make it clear that what is being sought is a ruling from us as to whether or not the Family
Court may properly recognize, for the purpose
of entertaining a divorce petition, the marriage
of two persons of the same sex who were purportedly married in another state.” A.S.L.
Arizona Supreme Court Rejects Marriage
Amendment Challenge After the Fact
The Arizona Supreme Court issued an opinion
on January 12, providing an explanation for its
previously unexplained decision affirming a
trial court’s refusal to block an anti-gay marriage amendment from the state ballot last November. Arizona Together v. Brewer, 2007 WL
80728.
On November 7, 2006, Arizona voters by a
clear majority rejected Proposition 107, a ballot
measure that would have added the following
language to the state’s constitution: “To preserve and protect marriage in this state, only a
union between one man and one woman shall
be valid or recognized as a marriage by this
state or its political subdivisions and no legal
status for unmarried persons shall be created or
recognized by this state or its political subdivisions that is similar to that of marriage.” Election post-mortems suggested that the measure
went down to defeat in part because unmarried
senior citizens living together felt threatened by
it, and many municipal officials actively opposed it fearing that it would eliminate domestic partnership benefits programs.
Groups organized to oppose the amendment
had tried to keep it off the ballot by arguing that
it violated the “separate amendment rule” under Art. 21, Sec. 1 of the state constitution,
which provides that “if more than one proposed
amendment shall be submitted at any election,
such proposed amendments shall be submitted
in such manner that the electors may vote for or
against such proposed amendments sepa-
Lesbian/Gay Law Notes
rately.” As construed by the state’s supreme
court in Kerby v. Luhrs, 36 P.2d 549 (Ariz.
1934), this meant that an amendment had to
meet two tests: that all of its parts were related
to each other, and that they were in fact sufficiently interrelated so as to avoid the phenomenon of “log-rolling,” which the court described
as requiring voters to “adopt measures of which
in reality they disapprove, in order to secure the
enactment of others they earnestly desire.”
The opponents pointed to public opinion
polls showing that a majority of the public was
opposed to same-sex marriage, but that a majority would support allowing unmarried couples have domestic partnership benefits or even
civil unions carrying equivalent rights to marriage. They argued that the proposed amendment actually combined three things as to
which voters might have disparate views. In addition to defining marriage in solely heterosexual terms, it would “(1) prohibit same-sex marriages, (2) prohibit civil unions and domestic
partnerships, and (3) prohibit the state and its
political subdivisions from conferring benefits
and rights on domestic partners.”
In rejecting this argument, Chief Justice
McGregor, writing for the court, found that the
one-sentence amendment related entirely to
the subject of marriage, and in prohibiting
“marriage substitutes170 under a different
name, was addressing a topic interrelated sufficiently with the definition function to meet the
test of a single amendment. Furthermore,
McGregor said that a statement in some past
cases that the court should evaluate proposed
amendments from the perspective of a reasonable voters who might favor part of it and oppose part of it should be abandoned, as not adding anything useful to the analysis. McGregor
pointed out that litigants had in the past frequently mounted challenges to proposed
amendments based largely on this “reasonable
voter” test but had rarely been successful, and
that the court should not be engaged in speculating about how voters would evaluate proposed amendments.
Noting that the voters had, in fact, rejected
Proposition 107, the court saw no need to subject it to any interpretation to determine
whether the language would have barred or
wiped out existing domestic partnership benefits programs, commenting that courts would try
to construe adopted amendments in such a way
as to avoid constitutional questions. (Perhaps
this was an oblique reference to the Alaska Supreme Court’s decision in 2005 that although
the state had adopted an anti-marriage amendment, it was nonetheless a violation of state
equal protection for the government to deny
benefits to the same-sex domestic partners of
state workers... ) A.S.L.
February 2007
California Appeals Court Rules Against Straight
Man Who Lured Gay Man to His Death
Antonio Coyazo lost an appeal of his conviction
for six counts involving the attempted murder,
kidnapping and carjacking of one victim, Paul
Janosik, and the robbery or attempted robbery
of four others. People v. Coyazo, 2007 WL
60776 (Cal.App. 4 Dist., Jan 10, 2007). The
court’s rejected Coyazo’s defense based on sexual advances by the victim.
Even on appeal, Coyazo still maintained his
innocence throughout. According to him, “he
contacted Janosik for some unrevealed yet
completely benign reason, and [was] so
shocked and appalled by Janosik’s unwanted
sexual advances that [he was] driven to steal his
car and attempt to kill him.” Coyazo didn’t even
attempt to plead innocence in the context of the
robbery spree he and his accomplices participated in, after they left Janosik for dead.
Coyazo left Janosik in such critical condition, a student named Danica Carillo saw Janosik. “’bleeding all over [while walking through
the parking lot Coyazo and his accomplices left
him in]. He was drenched in blood.’ She called
911, and after, presumably, dispatching help,
the operator told Carillo to ask him questions.
She asked him what happened, and he said that
three men had beaten him and stolen his car.”
Coyazo argued a number of errors, including
improper admission of his confession, improper admission of hearsay evidence, the lack
of sufficient evidence on several charges, and
sentencing errors. The appellate court found no
error whatsoever.
Coyazo first contended that his confession
violated Miranda. Coyazo, a Mexican immigrant, responded “yes” when asked if he understood his rights by the detectives who were
investigating this case. Nonetheless, a significant portion of the interview was conducted in
Spanish. However, the court held that Coyazo’s
“conduct constitute[d] a valid implied waiver
of his rights under Miranda.” The court cited
Coyazo’s failure to provide evidence that he
was not proficient in English and his willingness to answer questions as providing an implied Miranda waiver.
The court then addressed Coyazo’s rather
creative argument that the prosecution failed to
sufficiently prove a kidnaping claim. According to Coyazo, “the $64,000 question here is
whether the People proved compulsion in getting Mr. Janosik to sit in the back seat and getting his hands tied with tape and in transporting
him against his will. Did the People prove compulsion in moving Janosik to the parking lot?”
The court found ample evidence demonstrating
that a kidnaping did in fact take place.
Coyazo further alleged that he was a mere bystander, thereby lacking the requisite culpability as either a principal or as an aider and abettor. According to the court, Coyazo emphasized
25
at length Janosik’s sexual preference and asserted that the reason that “Janosik was
kidnaped and ultimately shot was because
three heterosexual men found Janosik’s advances repulsive.” The court concluded that
the evidence supported a finding that “all three
men knew of Janosik’s orientation and took advantage of it in the most calculated manner
imaginable, using the promise of sex to lure
Janosik into a situation where they could rob
him and take his car, and then attempt to murder him to eliminate the witness to their
crimes.”
In addition, Coyazo challenged the prosecutor’s closing statement. During his closing, the
prosecutor stated that the rationale for commission of the crimes was money. “Don’t believe
the opening statement that this is a hard working immigrant looking for work. There is nothing in the evidence to support that. Nothing at
all. They take what they want when they want it,
and that is the type of work they do. They need
more money. They go get more. Find somebody
in a parking lot, hold him up, and take their
money. That is what they do, and that is what
they did.”
Coyazo, failing to cite any law on point, argued that the prosecutor was “absolutely wrong
to even mention the subject” and claims it was
“a bell that cannot be unrung.” However, Coyazo’s counsel failed to object at the time. Failure
to preserve an objection, coupled with the minimal harm caused by a brief mention to the jury
of Coyazo’s purported monetary motive, led the
court to conclude that there was no error.
“The prosecutor’s statement was offered
here to counter defendant’s characterization of
himself as a hardworking immigrant looking for
honest work. The facts, as the prosecutor was
attempting to illustrate, showed otherwise that
defendant was not hardworking, but preferred
obtaining money through crime.” Further, since
motive was not an element of the crimes Coyazo
was convicted of, there couldn’t have been any
harmful error.
As to Coyazo’s hearsay objections, he
claimed that Janosik’s statements to the passerby, Carillo, were not made in the context of
seeking help and thus were admitted in violation of the Confrontation Clause. However, the
court found that the requirements for admissibility were met and that Janosik’s statements
were indeed made in the context of his own
medical emergency while seeking help from
Carillo. Eric Wursthorn
10th Circuit Holds Intersexual’s Due Process
Rights Not Violated in Solitary Confinement
Decision
Wyoming prison officials who consigned a “low
risk” intersexual inmate to solitary confinement without a hearing process did not violate
her constitutional rights, according to a unani-
26
mous decision by a 10th Circuit panel that reversed the district court on January 24 in DiMarco v. Wyoming Department of Corrections,
2007 WL 172189.
Miki Ann DiMarco, who passed away after
the District Court ruling, was anatomically
male but was living as a woman when she was
prosecuted for check fraud in Wyoming in
1998. In discussing her condition, the circuit
court opinion by Judge Tim Tymkovich alternately refers to her as intersexual, hermaphrodite, or transsexual. She had undergone surgery
to remove her testicles. The opinion does not
mention hormone therapy. Presumably her intersexual condition was manifested by an abnormally small penis. In any event, she presented herself as a woman. After she pled guilty,
she was placed on probation. She failed the
terms of her probation when she tested positive
for drugs and failed to carry “verifiable identification.” A state judge then sentenced her to
2–4 years in state prison.
After being temporarily housed in a county
jail in Laramie, DiMarco was sent to the Wyoming Women’s Center and for the first time subjected to a routine physical examination that revealed to prison officials that she had a penis. A
prison doctor decided that she was a transsexual. At that point, a decision had to be made
where to house her. Prison authorities decided
not to send her to a men’s prison, but to keep her
in the women’s facility in solitary confinement.
They feared problems if she were placed in
general population, and apparently believed
she could not safely be allowed contact with any
other prisoner and that the only place to put her
was in Pod 3, the highest security most spartan
environment.
For her fourteen months of confinement, DiMarco was kept in a bare cell with cinderblock
walls and a concrete floor, with no chair or table, and no cabinet of locker for her personal
belongings. Although there was a “day room” in
Pod 3 with a table and chairs and a television
mounted high up under the control of guards,
she was not allowed to take her meals there, so
she had to eat balancing a food tray on her lap
while sitting on her cot or the cell toilet. Indeed,
it appears she was not allowed to use the day
room when any other inmates were present. Although she was allowed to have books from the
library cart sent to her, she was not allowed to
have a deck of playing cards. She could use the
gym, but only when no other inmates were present and a guard accompanied her. Her only
fleeting contact with other inmates was at occasional group therapy sessions. By contrast, conditions in the general population area of the
prison included real walls, carpeted floors, furnishings for personal belongings in cells, and
day areas where inmates could converse, play
cards, watch television and the like.
DiMarco accepted the judgment of prison
authorities that she not be placed in general
February 2007
population, but objected to the spartan nature
of her confinement, but she was never allowed
to have a hearing or an appeal process to contest the decision to put her in Pod 3 in solitary
confinement conditions. The prison did carry
out an administrative review of the situation at
90 day intervals, at which she was allowed to
appear and voice her objections. But to no
avail. After she was released, DiMarco filed a
federal civil rights suit against the state prison
system, contending that she had been subjected to excessive punishment in violation of
the 8th Amendment and had been deprived of
procedural and substantive due process and
equal protection in violation of the 14th
Amendment. As her confinement was ended,
she was seeking a declaration of her rights and
compensation for their deprivation.
District Judge Clarence A. Brimmer rejected
most of her arguments, finding that intersexuals
are not a “suspect class” so the equal protection claim was to be judged under the rational
basis test and ultimately ruling against DiMarco on her substantive claims. But Brimmer
did find that she had been subjected to atypically harsh conditions of confinement that
raised issues under the due process clause, and
that she had been entitled to more in the way of
procedural due process at least a hearing process to contest the conditions of her confinement. Brimmer awarded her $1,000 in compensatory damages, attorneys fees and costs
(including expert witness fees). Tymkovich’s
decision does not specify the amount involved,
but it must have been substantial to provoke the
state of Wyoming to appeal. DiMarco died
while the appeal was pending and her estate
was substitute as appellee. DiMarco never appealed Brimmer’s adverse rulings on her other
constitutional claims.
Tymkovich observed that the 10th Circuit
had not yet issued a published decision on the
issues involved in this case, although there
were many unpublished decisions generally rejecting due process claims by prisoners protesting various aspects of their confinement. He
observed that a relevant Supreme Court decision, Wilkinson v. Austin, 545 U.S. 209 (2005),
postdated Judge Brimmer’s decision but provided a framework for analyzing DiMarco’s
claim.
Tymkovich noted that under Wilkinson the
relevant issue in determining whether circumstances of confinement are sufficiently atypical
to raise constitutional concerns one had to determine the appropriate baseline comparison.
Comparison to the general prison population
was inappropriate, in the court’s view, as it was
rational to place DiMarco in some kind of segregation due to the peculiar security issues her
status raised. Thus, the appropriate comparison was to other inmates who required various
kinds of protective custody or segregation, a
category that could include “high risk” in-
Lesbian/Gay Law Notes
mates, or those who were ill, elderly, mentally
disturbed or who suffered disabilities requiring
special attention. As to the relevant factors for
analysis, Tymkovich pinpointed four: (1)
whether there was a legitimate penological interest furthered by the inmate’s segregation,
such as safety or rehabilitation, (2) whether the
conditions of placement were “extreme”, (3)
whether the placement increased the duration
of confinement by, for example, making the inmate ineligible for probation, and (4) whether
the placement was indeterminate.
A factor-by-factor review convinced the
court that although there were grounds to criticize the Wyoming authorities about the spartan
conditions to which they had consigned this
“low risk” prisoner, they were not sufficient to
find a constitutional violation.
Tymkovich found no fault with the decision to
place DiMarco in segregation. He pointed out
that Wyoming, a small state, had never dealt
with this kind of situation before and did not
have enough transsexual inmates to justify special facilities dedicated to housing them, and
that “prudence dictates that sending her to
Wyoming’s men’s prison was not a plausible alternative.” Prisoner authorities were as concerned that DiMarco might suffer abuse from
other female inmates as that she might present
a security risk to others.
The court found that her conditions of confinement were “admittedly spartan, but not
atypical of protective custody.” She did have
access to the basic essentials of life, although
she was deprived of many of the amenities
available to other prisoners. Although she was
shielded from contact with other inmates to a
great extent, she did have regular contact with
prison staff, so was not deprived of all human
contact. “Having said this,” wrote Tymkovich,
“given her unique condition it is hard to believe
the prison could not make better accommodations for her long-term placement. Many of her
complaints about living conditions were commonplace and the petty denial of certain
amenities borders on the absurd. For example,
the prison did not allow her to own playing
cards or eat meals outside her cell. While DiMarco’s circumstances were a challenge to the
prison, Wyoming could have been more flexible
in responding to her needs.”
Tymkovich noted that DiMarco’s confinement was not extended as a result of her solitary
confinement, as she was released after 14
months on a 2–4 year sentence, and that the
placement was not indefinite, in that it was reviewed on a regular 90 day cycle. The review
was apparently more than cursory, because a
management team was required to evaluate her
behavior and mental health and give a report,
and she was afforded the opportunity to state
her objections. In addition, Tymkovich found,
the management team’s reports were reviewed
Lesbian/Gay Law Notes
up to the level of the warden, who reaffirmed the
decision to keep her in solitary.
“Taken together,” wrote Tymkovich, “these
factors do not weigh in favor of finding that DiMarco has an enforceable liberty interest.
While we are sympathetic with her complaints
about the petty deprivations resulting from her
confinement, and are confident prison officials
could have done better, we cannot conclude
that the prison imposed such an atypical and
significant hardship on her as to offend the Due
Process Clause of the Constitution.”
Similarly, the court found no constitutional
problem with the procedures accorded to DiMarco, pointing out that the amount of “process
due” to inmates in respect to housing assignments and conditions of confinement are rather
limited under Supreme Court precedents. Having agreed, in effect, that she should be in segregation for her own safety, the court found that
there was no real need for any sort of adversary
hearing process. Asserting that “the prison provided periodic and meaningful reviews of her
status, including meetings that DiMarco could
attend,” the court evidently concluded that the
requirement of form had been complied with.
The district court decision on the merits of
the due process claim was reversed and, since
DiMarco was no longer a prevailing party, the
award of fees and costs was also reversed.
A.S.L.
Lesbian Loses Pay Claim Against Former Partner’s
Business; 4th Circuit Rules Against FLSA Claim
A woman who worked for more than four years
in her partner’s business before their domestic
relationship broke up lost her bid for compensation under the federal Fair Labor Standards
Act on January 10, when the U.S. Court of Appeals for the 4th Circuit ruled that she was not
an “employee” under the Fair Labor Standards
Act (FLSA). Circuit Judge J. Harvie Wilkinson,
III, writing for a three-judge panel, cautioned
that the ruling does not mean that same-sex
partners might not have an employer-employee
relationship covered by the law, but merely that
the circumstances of this arrangement led the
court to conclude otherwise in the case of Steelman v. Hirsch, 2007 WL 60424.
In June 1999, Michelle Hirsch started her
dog-grooming business called “Hair of the
Dog” in Asheville, North Carolina. Later that
year she became romantically involved with
Tammy Steelman, who moved in with Hirsch in
December. At the time, Steelman had a job at a
residential cleaning company and the women
agreed that they would split their household expenses evenly. But soon Steelman decided to
give up her job and work in Hirsch’s business.
Although they had no written agreement, Steelman believed she had a commitment that at
some point she would become a partner in the
business.
February 2007
Steelman and Hirsch worked together and
lived off the revenue from the business. Steelman did receive a few paychecks and commissions, a device they came up with for purposes
of making her eligible for insurance as an employee. Both Steelman and Hirsch had company American Express cards that they used for
expenses, and they made joint decisions about
household expenditures. All of their household
and everyday living expenses were paid by the
business, and Hirsch’s mother served as their
accountant, whom they consulted about
whether they could afford various expenditures. They also had a joint checking account
and ATM cards. Steelman would ask Hirsch to
transfer funds from the business account to the
joint account so she could draw against the
funds, since she was not authorized to withdraw
from the business account.
According to Steelman, she was concerned
that they were not saving anything and in fact
were going into debt because they were leading
a lifestyle that exceeded the revenue from the
business. While Steelman claimed Hirsch had
promised to make her a partner, Hirsch claimed
that she considered Steelman to be an employee and that the business was Hirsch’s sole
proprietorship.
Although they had a ceremony in which they
exchanged vows and considered themselves to
be married, they eventually drifted apart emotionally, exacerbated by differences about
money and the business. Despite couples counseling, these disagreements eventually led to a
complete breakdown of the relationship. In
January 2004, Hirsch asked Steelman to give
back her American Express card. This
prompted Steelman to quit the business and
move out of their house, although they agreed to
continue couples counseling. Steelman asked
for severance pay to help her get through the
period of looking for work, but Hirsch said she
was not entitled to severance pay because she
quit without giving notice.
In late February or March, Hirsch became
romantically involved with somebody else,
which Steelman claimed “devastated” her, and
then Steelman started a competing doggrooming business and filed her lawsuit against
Hirsch.
Steelman devised a two-pronged alternative
legal strategy. On the one hand, she claimed,
she was an employee who had not been fully
compensated for her work, and was entitled to
additional compensation under the FLSA.
Statutory employees are entitled to the federal
minimum wage and overtime for extra hours.
On the other hand, Steelman claimed that she
was actually a partner in the business and was
entitled to some compensation on various state
law claims such as fraud, breach of contract, or
compensation for unjust enrichment. Under either theory, Steelman was claiming that she was
entitled to some compensation for her years of
27
work in the business, beyond whatever she had
realized under their financial arrangements
from 2000 to 20004.
Because of the federal claim, Steelman filed
her lawsuit in federal court. U.S. District Judge
Lacy H. Thornburg concluded that however
one might characterize their arrangement, it
was not an employer-employee arrangement of
the type covered by the FLSA, and granted
summary judgment to Hirsch, refusing to exercise supplementary jurisdiction over the state
claims.
Judge Wilkinson wrote for the appeals panel
that the decision to uphold Thornburg’s ruling
had nothing to do with the nature of the domestic relationship between the women, but entirely on a realistic analysis of the economics
and legal precedents. “Taking the evidence in
this case in the light most favorable to her, the
plaintiff cannot be adjudged an ‘employee’ for
purposes of the FLSA under these precedents,
or under any analysis based in ‘economic reality.’ The intended lifetime partnership she described was not ‘the bargained-for exchange of
labor for mutual economic gain that occurs in a
true employer-employee relationship.’”
Wilkinson concluded that the kind of access
that Steelman had to company funds was not indicative of employee status, and more typical of
business partnerships. While this might bode
well for her state law claims, it totally undercut
her federal claim. Wilkinson also found that
treating Steelman as an employee would not
serve the particular purposes for which the
FLSA was enacted, to protect employees from
substandard wages and to protect businesses
against unfair competition from those who paid
substandard wages.
“The FLSA’s objectives would not be advanced by federal interposition in the relationship in this case,” Wilkinson asserted. “Retroactively substituting the uniform federal
standard tailored to the traditional workplace
for the fluid and informal financial arrangement
of the couple here would bear no relation to the
purposes of the Act. Such an extension would
not advance living conditions, given that the
parties drew freely from the company’s resources and lived well off them, but simply
failed to conform their dealings to the FLSA
framework.”
Wilkinson pointed out that this decision
“does not leave the plaintiff without recourse.
She may well have an ownership interest in
Hair of the Dog, an action for fraud or breach of
contract, or a basis for recovery” under other legal theories, “and we note that the plaintiff has
brought all these claims. State law has provided
mechanisms for dealing with the dissolution of
domestic and business relationships for centuries, and the North Carolina Wage and Hour Act
may supplement those remedies. But broad as
the FLSA’s coverage is, the statute was not
meant to be an omnibus financial relations act,
28
imposing a one-size-fits-all federal solution
upon all sorts of human relationships and available as a weapon upon the dissolution of all domestic partnerships and other intimate arrangements involving shared funds and shared
labor.”
In a brief concurring opinion, Circuit Judge
Roger L. Gregory departed from the majority,
asserting that he was “not however of the view
that the inquiry here concerns interference with
or interpretation of the parties’ domestic relationship. Simply stated, Steelman’s FLSA
claim fails because there is no evidence the she
‘worked in contemplation of compensation’
whether in the form of wages or benefits for her
labor. Rather, as the facts recounted by the majority show, Steelman worked to build a business with Michelle Hirsch, without regard to
any precise compensation for the precise hours
she worked at Hair of the Dog. She worked for
her and Hirsch’s shared advantage ‘for their future,’ as Steelman testified.” In a footnote rejoinder, Wilkinson denied that the court’s decision was concerned with the parties’ “domestic
relationship.” A.S.L.
New York Court Rules on “Gay Divorce” Case
Given that half of all marriages end in breakup,
it was perhaps only a matter of time before the
advent of same-sex marriage in Massachusetts
would lead gay and lesbian couples to experience the blessings of divorce as well. That time
arrived in New York in the case of Gonzalez v.
Green, 2006 WL 3849128 (N.Y. Supreme Dec.
28, 2006). In what appears to be the first “gay
divorce” case in New York, Justice Phyllis
Gangel-Jacob, delivered a split decision on
cross-motions for summary judgment: Finding
void the couple’s Massachusetts marriage, but
affirming the validity of their contractual separation agreement. It thus appears that so far the
ability of same-sex couples to order their relationships (and their termination) through contract remains intact, even in the wake of the
New York Court of Appeal’s decision against
same-sex marriage in Hernandez v. Robles, 7
N.Y.3d 338 (2006).
The plaintiff in this divorce action, David
Gonzalez, moved in with the defendant, Steven
Green, in 2001. Gonzalez, 29, then a student
(and now, according to press reports, a lawyer),
was reported to have “little or no income at the
time.” Green, on the other hand, was “a person
of considerable assets and income” in the real
estate field. The two lived together as domestic
partners in their homes in Westchester County
and New York City. Green, according to the
court, gave Gonzalez many expensive gifts, notably including a ski house that was placed in
Gonzalez’ name and some cars.
On Valentine’s Day 2005, the couple married in Massachusetts, always with the intent to
return to their home in New York. Over the next
February 2007
few months, however, the relationship deteriorated and the couple separated. In September
2005, both men executed a separation agreement drafted by Green’s attorney. The Agreement recited the parties’ desire to settle their
property rights and “other rights and obligations growing out of the marriage relation,” and
provided for a division of their accumulated
property, a one-time payment of $780,000 by
Green (described as “the only support, maintenance, or other form of payment by either party
to the other”), and mutual releases. The Agreement also provided for Gonzalez to convey to
Green the ski house that Green had given him.
The Agreement was fully performed by both
parties upon execution.
On January 20, 2006, Gonzalez commenced
a divorce action against Green. Relying upon
the then-recent decision of the Appellate Division, First Department in Hernandez v. Robles,
26 A.D.3d 98 (2005), holding that New York
does not allow same-sex marriage, Green counterclaimed for rescission of the Agreement,
claiming (1) failure of consideration, on the
ground that dissolution of the marriage had
been consideration for the Agreement; (2) the
Agreement was void as against New York’s public policy against same-sex marriage; and (3)
mutual mistake (i.e., the Agreement was based
on the parties’ mistaken belief they were married). The parties cross-moved for summary
judgment, and Justice Gangel-Jacob stayed decision pending the Court of Appeal’s ruling in
Hernandez, which affirmed the Appellate Division by holding that New York law did not allow
for same- sex marriage and that this limitation
did not violate the New York Constitution.
Beginning with plaintiff’s divorce action,
Justice Gangel-Jacob granted defendant’s motion for summary judgment dismissing the action and sua sponte declared the couple’s marriage void. She did so in reliance upon
Hernandez and Massachusetts General Laws,
c. 207, § 11, a recently-resurrected “evasion
statute” that declares “null and void” any marriage contracted in Massachusetts by parties
domiciled in another state, if the state of domicile would consider the marriage void. This law
was upheld last year by the Massachusetts Supreme Judicial Court in Cote-Whitacre v. Dep’t
of Public Health, 446 Mass. 350 (2006). This
appears to be the first instance of a New York
court invalidating a Massachusetts same-sex
marriage based on the Massachusetts evasion
statute. Justice Gangel-Jacob did not, however,
address the interpretation of the evasion statute
in Cote-Whitacre, which produced a fractured
decision as to the level of prohibition of samesex marriage that must be found in a couple’s
state of domicile to trigger the statute. (See Law
Notes, April 2006.) Justice Gangel-Jacob
clearly assumed, however, that Hernandez was
sufficient to warrant application of the Massachusetts evasion statute.
Lesbian/Gay Law Notes
Defendant Green’s success in turning Hernandez to his benefit ended there, however, as
Gangel-Jacob granted plaintiff Gonzalez’ motion for summary judgment dismissing Green’s
counterclaims for rescission of the Agreement.
The court flatly rejected defendant’s public
policy argument. Citing Morone v. Morone, 50
N.Y.2d 481 (1980), the court noted that New
York had long accepted that “while cohabitation without marriage does not give rise to the
property and financial rights which normally
attend the marital relation, neither does cohabitation disable the parties from making an
agreement within the normal rules of contract
law.” Nor, said Justice Gangel-Jacob, did Hernandez change that law with respect to samesex couples. Following (and quoting) the earlier
ruling of Brooklyn Justice Wayne P. Saitta in
Cannisi v. Walsh, 13 Misc. 3d 1231(A) (N.Y.
Sup. 2006), the court held that “the holding [in
Hernandez v. Robles] does not negate the existence of same sex relationships, nor the reality
that some same sex relationships dissolve, and
the courts are called upon to resolve disputes
regarding the distribution of assets of such relationships.”
Turning to Green’s other arguments for rescission, the court rejected defendant’s contention that there was no consideration for the
$780,000 payment to Gonzalez. Gangel-Jacob
found ample consideration to support the
Agreement in the mutual releases given by
each party, but to “further alleviate defendant’s
curious logic in this regard” — made note of
the transfer of the ski house title from plaintiff
Gonzalez to Green as tangible consideration of
“more than sufficient value.” The court also rejected Green’s argument that the voiding of
their marriage (thus eliminating the possibility
of divorce) eliminated the consideration for the
Agreement; a contract to obtain a divorce, the
court said, was itself against the public policy of
New York.
Finally, Justice Gangel-Jacob found no merit
to Green’s contention that the Agreement had
been based upon a mutual mistake, to wit, the
mistaken belief that the couple had indeed
been married. As a factual matter, the court
found this untenable, for Green had filed affidavits with the court attesting that he and Gonzalez had never filed joint tax returns or purchased property as a married couple and “only
had the marriage because it seemed like a nice
thing to have, since couples in the gay community are seeking such status.” The court’s conclusion from this was that “it could not be more
obvious that defendant never took the idea that
he was married to plaintiff seriously.” Moreover, the court noted, Green must have understood that the state of marriage in New York
(and of the Massachusetts law on out-of-state
marriages) was in flux, and that there was a
strong possibility that the marriage would be
found void.
Lesbian/Gay Law Notes
Finally, the court found that there was no
mistake of law warranting rescission. The
Agreement, said Gangel-Jacob, “express[ed]
the transaction as defendant desired it to be.
And as set forth herein, whether the law of New
York does not recognize the validity of the cohabiting parties’ marriage, it does recognize the
validity of the cohabiting parties’ right to settle
their affairs by agreement.”
Eric Wrubel of Dobrish Zeif Gross & Wrubel
represented plaintiff David Gonzalez. Yonatan
Levoritz of Stark & Associates represented Steven Green. According to press reports, Green
planned to appeal the decision. Glenn C. Edwards
Ohio Trial Court Upholds Validity of Co-Custody
Agreement
A trial judge in Columbus, Ohio, ruled on January 7 in In the Matter of Joshua D. Fairchild,
Case No. 01 JU–03–2542 (Franklin Co. Common Pleas Ct.), that a court-approved cocustody agreement between two women, made
in 2001 to secure the parental rights of Therese
Fairchild to her former partner Denise
Fairchild’s son Joshua, will be enforceable
upon a magistrate’s finding that Therese is a
suitable parent, implicitly rejecting Denise’s
argument that the Ohio Marriage Amendment,
approved by the voters in 2004, invalidates the
custody agreement.
Joshua was born to Denise in 1996. At the
time, Therese and Denise were domestic partners who had jointly planned to have and raise a
child together. Although they resided in Licking County, they went to Columbus (in Franklin
County) in March 2001 to obtain a court order
intended to establish and protect a legal
parent-child relationship between Therese and
Joshua. Among the papers they filed with the
court at that time were a “waiver of venue”
agreeing to let the Franklin County Common
Pleas Court have jurisdiction of the case, and a
Complaint for Custody which they jointly filed
seeking to have the court approve their agreement that they both have legal custody of the
boy. The court approved their agreement at that
time, in the form of an “Agreed Entry” that has
the status of a court order.
A few years later, however, the women’s partnership relationship ended, and Therese filed a
motion with the court on May 26, 2004, seeking
a contempt order against Denise for not allowing Therese to have continuing visitation with
Joshua, in violation of the co-custody agreement. The court designated Magistrate Krippel
to handle the motions and appointed attorney
Thomas Schmidt, to represent Therese, who
had represented herself in filing the motion.
The court also appointed a guardian ad litem,
Brian Burner, to represent Joshua’s interests in
the litigation.
February 2007
Burner reported to the court that Therese had
“significant contact” with Joshua ever since his
birth until early in 2004, when Denise had
blocked contact, resulting in the lawsuit.
Burner found no reason why Therese should not
continue to have parenting time with Joshua,
and recommended a visitation schedule. At
that point, Denise hired an attorney, Keith
Golden, who represented her in opposing the
motion that Therese filed for a specific parenting time schedule, and in moving to terminate
the 2001 agreement.
Denise’s motion came just days after Ohio
voters had approved the Marriage Amendment,
which added to the Ohio Constitution a ban on
same-sex marriage and the command that the
state “shall not create or recognize a legal
status for relationships of unmarried individuals that intends to approximate the design,
qualities, significance or effect of marriage.”
Seizing upon the passage of the amendment,
Denise argued that enforcing the 2001 agreement would violate public policy as declared in
the Marriage Amendment. At this point,
Lambda Legal staff attorney Camilla Taylor got
involved as co-counsel for Therese specifically
to address the constitutional issues. Denise
also challenged the validity of the 2001
“Agreed Entry” on the ground that none of the
parties were residents of Franklin County at the
time.
Magistrate Krippel concluded that the court
did have jurisdiction to determine the custody
of Joshua, and found the 2001 agreement to be
“legal and enforceable.” Krippel also concluded that the 2004 constitutional amendment did not apply to the matter, and that granting custody to “nonparents” was not against
public policy. Denise promptly appealed this
decision, claiming that Magistrate Krippel
lacked authority to make these decisions, and
arguing that the 2001 agreement was illegal
when it was made, that enforcement of the
agreement conflicted with the 2004 constitutional amendment, and that enforcing it would
be against public policy.
Ruling on the appeal from the magistrate’s
decision on January 7, Judge Carole Squire focused mainly on the jurisdictional aspects of
the case, finding that Magistrate Krippel had
jurisdiction to decide the custody and parenting time issues that had been referred by the
court, and rejecting attempts by Denise to invoke prior Ohio cases that Judge Squire found
to be distinguishable in relevant respects. Instead, Judge Squire found that Krippel had correctly relied on a 1986 decision holding that
parents could agree that custody of their child
be given to a third person, provided that there
was a judicial determination that “the custodian was in every way a proper person to have
the care, training and education of the child.”
“In the instant case,” wrote Squire, “the law
clearly supports the right of suitable parents to
29
contract their right to custody of their children
to a suitable third party. The parties in this matter consensually entered an agreement to share
custody of Joshua, which was Denise
Fairchild’s legal right. The parties’ Agreed Entry states the petitioners planned Joshua’s conception, and had for the first four years of the
child’s life, resided with the child and shared
all parenting rights and responsibilities for
Joshua.”
However, Squires found, when the court approved the co-custody agreement in 2001, it
had not made any “judicial determination” that
Therese “was a proper person to have the care,
training and education of the child.” Thus,
Squires concluded, Magistrate Krippel should
have made such a finding before concluding
that the 2001 agreement was enforceable. (Evidently, Burner’s recommendation that Therese
be afforded parenting time with Joshua was not
deemed sufficient to satisfy this requirement.)
Squires never directly addressed Denise’s
argument that the Marriage Amendment made
the 2001 agreement unenforceable, but her ruling implicitly approves Magistrate Krippel’s
conclusion that the Marriage Amendment was
irrelevant to this lawsuit, since she overruled
Denise’s objections to Krippel’s decision except for the specific problem that there had
never been a “judicial determination” about
Therese’s suitability. Given the vigor with
which this case has been litigated over the past
two years, it would not be surprising, assuming
that Magistrate Krippel finds Therese suitable,
that Denise would attempt to appeal the ruling,
which could result in an important appellate
court ruling on whether the Ohio Marriage
Amendment has an relevance to custody disputes between same-sex co-parents. A.S.L.
Immigration Judge Awards Asylum to Gay
Mexican on Remand from 9th Circuit
Having been told by the 9th Circuit Court of
Appeals that he had applied an incorrect legal
standard in denying U.S. asylum to a gay Mexican man, Immigration Judge John D. Taylor
ruled on January 30 that Jorge Soto Vega can
stay in the United States permanently.
When Judge Taylor denied Soto Vega’s petition in 2003, he said that the petitioner could
return to Mexico because “it would not be obvious that he was homosexual unless he made it
obvious himself.” But the 9th Circuit panel,
ruling in Soto Vega v. Attorney General, 183
Fed.Appx. 627, 2006 WL 1518945 (2006),
found that as Soto Vega had provided sufficient
evidence of past harassment in Mexico, the
burden was the government to show that his
subjective fear of persecution there was not
well founded. And, at the new hearing on remand, Judge Taylor determined that the government had not sustained this burden.
30
Perhaps more significantly, in light of the frequency with which the government argues this
point in gay asylum cases, Taylor found that the
relevant test is not whether a gay person could
survive in his home country by concealing his
sexual orientation, but rather whether he could
survive as an openly-gay person. Surely, a gay
asylum applicant who is removed to his home
country would immediately be known to the
authorities there as gay, so the ability to “pass”
would be chimerical at best.
Jon W. Davidson, Legal Director at Lambda
Legal, served as Soto Vega’s lead attorney, with
assistance from Lambda Legal attorneys Tara
Borelli, Brian Chase and Jack Senterfit, and
Los Angeles immigration attorney Ally Bolour.
Lambda Press Advisory, Jan. 30; Los Angeles
Times, Jan. 31. A.S.L.
8th Circuit Affirms Equal Access Act Injunction for
Student Group
In Straights and Gays for Equality (SAGE) v.
Osseo Area Schools-Distict No. 279, 471 F.3d
908 (8th Cir., Dec. 22, 2006), the court affirmed the award of preliminary injunctive relief to SAGE by District Judge Joan N. Ericksen
(D. Minn.), see 2006 WL 983904, on a claim
that school district authorities had violated the
rights of SAGE’s members under the Equal Access Act, 20 USC 4071, by not affording them
rights equal to those of other student clubs that
the school had misclassified as “curricular”
clubs.
The EAA requires that schools afford the
same rights of access and on-campus privileges
to all non-curricular activities. A school can
ban on-campus non-curricular activities entirely, but if it allows non-curricular activities
on campus, it may not discriminate among such
activities based on subject matter in the absence of evidence that allowing a particular activity will disrupt the academic program of the
school.
At Maple Grove Senior High School
(MGSH), the authorities apparently engaged in
some really imaginative reasoning in order to
classify a wide array of popular student activities as “curricular” in order to be able to deny
equal access to SAGE. The difference is substantial, since the school allowed curricular
clubs to use the public address system and to
engage in various fund-raising and travel activities, all of which were denied to noncurricular clubs. For some reason not articulated in the court’s opinion, the various ethnic
clubs at the school were all classified as curricular, as was a group called Gays, Lesbians,
Bisexuals, Transgender, Questioning and Allies, but SAGE, which sounds from its description and name as rather similar, was classified
as non-curricular.
SAGE, assisted by the ACLU, challenged the
classifications, but focused on two other “cur-
February 2007
ricular related” clubs as its comparators: the
cheerleading club and the synchronized swimming club. The court easily determined that
neither of these organizations could be classified as curricular clubs under criteria established in prior cases, which require some actual
tie-in with the school’s academic curriculum.
Since these were not truly curricular clubs but
had been given the same rights of access and
participation as curricular clubs, the court declared that the other clubs at the school that had
been classified as “non-curricular,” including
SAGE, were entitled to the same access rights
under the statute.
However, wrote Circuit Judge Smith, “Our
conclusion that SAGE is likely to prevail on the
merits of its EAA claim... does not mean that
MGSH ‘can never close a limited open forum
once such a forum has been created.’ MGSH is
‘free to wipe out all of its noncurriculum related
student groups and totally close its forum’. Furthermore, our holding does not prevent MGSH
from legitimately categorizing cheerleading,
synchronized swimming, and any other athletic
groups as ‘curriculum related’ by granting
physical education academic credit to students
who participate in such groups.” A.S.L.
Federal Civil Litigation Notes
7th Circuit — In Kampmier v. Emeritus Corporation, 2007 WL 6072 (Jan. 2, 2007), a panel
of the U.S. Court of Appeals, 7th Circuit, reversed a grant of summary judgment by U.S.
District Judge Philip G. Reinhard (N.D. Ill.),
reviving a same-sex harassment claim under
Title VII. Plaintiff Shannon Kampmier, who
was dismissed as a practical nurse at a nursing
home when she failed to call in or submit a doctor’s note in connection with an absence of several work dues due to medical reasons, alleged
both disability discrimination and hostile environment sexual harassment at the hands of a
lesbian management employee. The district
court granted summary judgment to the employer, finding that Kampmier is not a person
with a disability under the ADA and that no retaliation against her for filing any complaints
had been established. The 7th Circuit panel
found, in an opinion by Judge Flaum, that
Kampmier had adequately pled a prima facie
case of same-sex harassment however, and was
entitled to continue litigating on that claim. The
court noted allegations that Kampmier had reported the manager’s inappropriate comments
and uwanted touching to a supervisor, who
claims to have relayed it to top management,
but the chief company officer on-site claimed
not to have received any such message. In any
event, Kampmier alleges that nothing was done
as a result of her complaint, and manager in
question was not disciplined in response to the
complaint and there was no apparent attempt to
investigate or redress the situation. The speech
Lesbian/Gay Law Notes
and conduct Kampmier alleged sounds sufficient to make out a prima fascia case, even in
light of the high bar set in federal sexual harassment ligitation.
9th Circuit — In Velarde v. Gonzales, 2007
WL 43655 (Jan. 8, 2007)(not officially published), the court of appeals rejected a petition
to review the Board of Immigration Appeals’ order denying asylum or protection under the
Convention Against Torture to Velarde, a gay
man from the Philippines. According to the per
curiam opinion, Velarde had alleged three incidents where he was ridiculed or harassed for
being gay, but the court found that these incidents would not amount to “persecution” as the
term is used in asylum law, which is an “extreme concept.” The court found no basis in the
record for “a claim of fear of future persecution
based on Petitioner’s homosexuality,” and said
there was no particular evidence in the record
supporting a claim for CAT relief. “Finally,”
said the court, “the record fails to show a wellfounded fear of persecution or a likelihood of
torture based on Petitioner’s alleged spying
against the New Peoples’ Army. He received
word in 1979 that the New Peoples’ Army suspected him of spying, but he continued to visit
New Peoples’ Army camps for five years without incident.” The court also found that this
group’s strength had “substantially diminished” since Velarde left the Philippines, so
any alleged fear of persecution or torture at
their hands was “not well-founded.”
9th Circuit — A 9th Circuit panel ruled
January 30 in U.S. v. Ziegler, 2007 WL 222167,
that an employee’s 4th Amendment rights were
not violated when his private employer had the
hard drive on the employee’s office computer
copied and sent to the Federal Bureau of Investigation, which was investigating a report that
the employee was searching for child pornography on-line using the computer. Examination of
the hard drive revealed child pornography, subjecting the employee to prosecution under federal law. The same panel had previously issued
a ruling on August 8, holding that the employee
had no reasonable expectation of privacy regarding his office computer, which was subject
to monitoring by the employer, but on reconsideration withdrew the prior opinion and decided
that the employee did have a reasonable expectation of privacy, but that because the employer
owned the office computer, the employer’s
copying and submission of the hard drive to
federal law enforcement officials constituted
valid consent to the search. The result is the
same for the employee in this case, Jeffrey
Brian Zeigler, who made a conditional plea
agreement with the government pending the
outcome of this appeal, under which he will pay
a fine and be on probation for two years. (Such
probation agreements usually include restrictions on internet usage and/or advance agree-
Lesbian/Gay Law Notes
ment to submit to surprise inspections of computers used by the probationer).
Connecticut — Finding that the plaintiff had
alleged a viable sex discrimination claim under
Title IX, U.S. District Judge Janet C. Hall (D.
Conn.) denied a summary judgment motion by
a school district charged with failing to deal appropriately with the homophobic harassment of
a female junior high school student. Riccio v.
New Haven Board of Education, 2006 WL
3826687 (Dec. 26, 2006). The complaint alleged that other students frequently taunted the
plaintiff’s daughter by calling her “bitch,”
“dyke,” “freak,” “lesbian,” and “gothic.” The
Board claimed that the name-calling had to do
with the child’s odd manner of dress and not because of her gender or perceived sexual orientation. Although there was evidence that adolescents call each other “gay” as a taunt that
does not necessarily imply labeling of sexual
orientation, the child testified that she understood the name-calling to be based on her perceived sexual orientation. In addition to namecalling, there was testimony about unwanted
physical contact, including students throwing
objects at her. Many of the harassers were other
girls. The court found this case analogous to
Oncale, the Supreme Court’s same-sex harassment case under Title VII, and found that the
allegations of hostile environment based on sex
were sufficient to withstand the motion for summary judgment and require a trial.
D.C. — U.S. District Judge Rosemary M.
Collyer granted summary judgment to the government in Servicemembers Legal Defense Network v. Department of Defense and Department
of Justice, 2007 WL 79442 (D.D.C., Jan. 12,
2007), in which SLDN had claimed that government agencies had made inadequate
searches of their files to comply with a Freedom
of Information Act (FOIA) request by SLDN.
Reacting to media reports that the FBI and Defense Department intelligence agents had been
conducting surveillance of meetings by student
groups held to protest the presence of military
recruiters on campus and other meetings and
rallies concerning the “don’t ask, don’t tell”
anti-gay military policy, SLDN had demanded
any documents concerning such surveillance.
When the agencies did not respond promptly,
SLDN filed this lawsuit. In moving for summary
judgment, the agencies submitted affidavits detailing the search terms they had used to attempt to locate relevant documents in their databases. The searches turned up some
documents, but fell short of what SLDN anticipated, mainly, SLDN argued, because the
searches were too narrowly focused. Judge Collyer held that the searches described in the affidavits were adequate to comply with FOIA, the
measure of compliance being not what was
turned up but rather the methods that were
used. She commented that FOIA did not require the government to undertake burdensome
February 2007
wide-ranging searches, and also noted that a
request to DoJ headquarters in Washington was
not expected to produce searches of files held
in FBI field offices and not incorporated in the
agency’s national databases.
Georgia — White County education officials
and the ACLU reached settlement on a lawsuit
concerning the right of students at White
County High School to start a gay-straight alliance, which the students had named PRIDE
(Peers Rising in Diverse Education). The district refused to allow the group to meet on campus when it was started during the 2005–2006
school year, provoking a lawsuit under the federal Equal Access Act. U.S. District Judge William C. O’Kelley had ruled in White County
High School Peers Rising in Diverse Education
v. White County School District, Civil Action
No. 2:06–CV–29–WCO (N.D. Ga. Jul 14,
2006), that the students were entitled to injunctive relief against this clear violation of their
federal statutory rights. Under the terms of the
settlement, the district will adopt a sexual orientation non-discrimination policy and will
train faculty on how to deal with anti-gay harassment in the schools. Macon Telegraph, Jan.
11.
Michigan — A municipal transit system and
a bus driver charged with discriminating
against a lesbian couple who were passengers
on the bus failed to persuade a U.S. Magistrate
to throw out a lawsuit on technicalities in Johnson v. Michael Skolski, 2007 WL 141961 (E.D.
Mich., Jan. 16, 2007) (not officially published).
According to the complaint, Joann Johnson and
her partner Jessica Hubbard suffered anti-gay
comments from the bus driver, who allegedly
push one of them from the bus as she was getting off, resulting in physical harm and emotional injury. However, Johnson evidently did
not get a good look at the driver’s nameplate,
since the complaint was directed to Michael
Skolski and it turns out the driver’s name is
Sakosky. Johnson sought to amendment the
complaint to correct the spelling, but defendants argued the case had to be thrown out because the defendant was not, literally, named.
Magistrate Whelan said that the defendants argument “borders on the absurd,” that a mere
misspelling was not grounds for throwing the
case out (because the amendment with the correct spelling would, if filed, post-date the statute of limitations deadline for the underlying
case). The court similarly rejected a technical
argument about service of process.
Michigan — In Mason v. Granholm, 2007
WL 201008 (E.D. Mich., Jan. 23, 2007), U.S.
District Judge John Corbett O’Meara ruled that
a Michigan statute excluding all state inmates
from the protection of the state’s law against
discrimination violates the Equal Protection
Clause of the 14th Amendment. The state
sought to defend the statute by analogizing it to
various federal prison litigation reform meas-
31
ures making it more difficult for prisoners to
bring federal constitutional claims concerning
their conditions of incarceration, but Judge
O’Meara found the analogy unconvincing. Instead, the analogy he saw was to Colorado
Amendment 2, the measure struck down by the
Supreme Court in Romer v. Evans in 1996.
Amendment 2 provided that gay people in
Colorado could not seek any protection from
discrimination on the basis of their sexuality.
The Supreme Court found no rational justification for such a sweeping disqualification and
drew the inference that it was motivated solely
by animus against gay people. Similarly, Judge
O’Meara found that the Michigan statute barred
all claims by inmates, regardless of their merits, and that the only rationale for such a sweeping measure was animus against inmates. Of
course, by committing crimes inmates earn animus, so one can quickly see a distinction. On
the other hand, the punishment for their crimes
is incarceration, and under our constitutional
system they are entitled not to be subjected to
additional punishment on account of the characteristics specified in civil rights laws. Michigan has an unusual civil rights scheme, in that
the state constitution does not provide selfexecuting protection against discrimination,
but instead mandates that the legislature create
a mechanism for countering discrimination.
This supports an argument that the legislature
does not have discretion to exempt particular
groups from the general protections of the
state’s civil rights laws, just because the discrimination in question would emanate, by
definition, from an agency of the state.
Minnesota — Largely rejecting an employer’s motion for summary judgment, U.S. District
Judge Donovan W. Frank determined in LeBaron v. Speedway SuperAmerica LLC, 2007 WL
107726 (D. Minn., Jan. 10, 2007), that Jeff LeBaron should get his day in court on claims of
discrimination and, retaliatory discharge in
violation of Title VII and the Minnesota Human
Rights Act, and common law defamation. The
story is complicated and well-told in Judge
Frank’s opinion. As it concerns LGBT issues,
one part of the case involves a complaint by LeBaron, then a store manager, about his district
manager, who LeBaron alleges instructed him
to, in effect, set up a lesbian employee for discharge.
New Jersey — How to wind up in the wrong
court… ? Harry W. Bisbing, a gay man who
claims that his employer created a sexually
hostile environment in violation of New Jersey
state laws (which prohibit both sex and sexual
orientation discrimination), filed suit in New
Jersey Superior Court. He didn’t waste any time
on a fruitless Title VII claim, but he did include
in his claim an allegation of deprivation of constitutional rights under the 14th Amendment,
the employer being the New Jersey Firemen’s
Home, a “long term and residential care facility
32
chartered in 1898 by the New Jersey State Legislature,” according to the opinion by U.S. District Judge Dickinson Debevoise. The defendant had the matter removed to federal district
court under federal question jurisdiction. Bisbing, arguing that seven out of the eight counts
of the claim concerned state law, which was the
main focus of the case, moved to have the action
remanded back to state court. Judge Debevoise
denied the motion on January 9, finding that
there were no particularly novel issues of state
law that would support sending the matter back
to state court, and that the existence of a federal
constitutional claim in the complaint authorized removal. Judge Debevoise wrote that “the
Court cannot decline jurisdiction over the federal law claim, nor can it remand the state
claims to state court, because such an action
would quite probably result in parellel suits in
both the state and federal courts with possibly
conflicting opinions. The interests of judicial
economy, convenience and fairness to the parties, and comity weigh in favor of a single suit in
federal court.” Generally, all things being
equal, a plaintiff is better off in state court on a
sexual orientation claim, especially where a
state gay rights law provides the main basis for
liability. The temptation to add a federal claim,
especially a constitutional claim against a state
government entity, may be great, but giving in to
the temptation may land the plaintiff in the
“wrong court.” Bisbing v. New Jersey Firemen’s
Home, 2007 WL 87635 (D.N.J., Jan. 9, 2007).
New York — A gay former law student suing
Albany Law School for sexual orientation discrimination suffered dismissal of his case by
U.S. Magistrate David R. Homer (N.D.N.Y.), for
failure to take responsive actions at the early
stages of the litigation. Cower v. Albany Law
School, 2007 WL 148758 (Jan. 11, 2007)(not
officially published). Mr. Cower enrolled fulltime at Albany Law in August 2002, but left after one semester. In his complaint, he alleged
that during his one semester, “he was subjected
to a hostile environment, harassment, and discrimination based on his male gender, gay sexual orientation, and sex stereotyping.” He filed
his complaint in state court but included federal claims, so Albany removed the case.
Shortly thereafter, Cower’s counsel moved to
withdraw as Cower was not current in paying
his fees, and the motion was granted. From that
point Cower was representing himself, but he
failed to attend several conference meetings
with the judge and opposing counsel, sending a
non-lawyer friend to one to “represent” him,
and was totally unresponsive to papers served
on him. Judge Homer sent him notices emphasizing his responsibility to respond, to little effect. (Cower participated in one chambers conference by telephone.) Cower’s conduct was
explained as a manifestation of agoraphobia,
attributable to his experiences at Albany Law
School, but at some point Judge Homer just lost
February 2007
patience with him and granted a motion to dismiss the complaint. Acknowledging that this
was strong medicine in a pro se case, Homer
pointed out that Cower had failed to respond to
pointed notices from the court on numerous occasions and was basically incommunicado.
However, Homer rejected Albany’s motion for
attorneys fees, concluding that in light of Cower’s problems paying his attorney, chances were
slim that he could pay Albany’s attorney fees
and that dismissal of his case was sufficient
punishment for his dilatory conduct.
Pennsylvania — An an extensive and scholarly decision, U.S. District Judge Lawrence F.
Stengel granted summary judgment to the defendants in Startzell v. City of Philadelphia,
2007 WL 172400 (E.D. Pa., Jan. 18, 2007), in
which a group of evangelical Christians sought
compensation for their arrests while disrupting
the annual OutFest Gay Pride Celebration held
over a sixteen block area in Philadelphia in October 2004. OutFest organizers had secured a
police permit to conduct their massive street
fair. Prior to the event, an attorney for OutFest
wrote to the police, asking that the group of
Christian protesters who had showed up at prior
Gay Pride events in the city be excluded by police from the blocks devoted to OutFest in order
to preserve the peace, but the Police Department denied the request. When the demonstrators showed up at the event and volunteers from
OutFest tried to bar their entry, the police required that they be allowed to enter. But within
about half an hour, as the vocal and in-your-face
antics of the protesters had stirred up the potential for violent confrontation, police ordered
them to leave, and when they refused, arrested
them. Judge Stengel found that the First
Amendment rights of the demonstrators had
been accommodated by the police until public
safety required their removal. He noted that the
demonstrators did not seek a permit, and had
not been censored in advance by the police. He
also credited OutFest’s argument that it had a
right to control the political content of its street
fair, relying on the Supreme Court’s Hurley decision, which had upheld the exclusion of gay
rights demonstrators from a St. Patrick’s Day
march in Boston on similar grounds. A.S.L.
State Civil Litigation Notes
Arkansas — The Court of Appeals of Arkansas
affirmed a decision by Independence County
Circuit Court Judge Timothy M. Weaver to
award custody of the two children of Michelle
and Kirby Archer to Kirby on the ground that he
has a better family support network than his
ex-wife. Archer v. Archer, 2007 WL 268548
(Jan. 31, 2007). After the couple split up, Michelle moved in with a woman friend with
whom she had a lesbian relationship for a
while, but she swears that’s over, she’s sorry,
she’ll never do it again. Meanwhile, she
Lesbian/Gay Law Notes
claimed that Kirby had a gay relationship and
was hanging with a gay crowd for a while, although it turns out one of her main objections to
his custody is that he leaves the children in the
care of his current girlfriend from time to time.
Actually, there was some suspicion that Michelle was making up the gay stuff about Kirby
(who denied any gay relationships) to even the
scales with her admitted lesbian relationship.
From the opinion by Judge David M. Glover, it
sounds like Judge Weaver was faced with a
Hobson’s Choice, stating in the divorce decree:
“The Court did not approve of the conduct of
the parties, however, due to Defendant’s (Kirby
Archer’s) support system, custody is granted to
him.” Wrote Glover, “Although the trial judge’s
comments indicated that he did not think that
the conduct of either party was beneficial to the
children, we hold that he did consider the best
interests of the children for purposes of custody
when he considered the familial-support system that Kirby had for taking care of the children. While we agree with the trial court that
the conduct of both parties has been less than
stellar, and in some cases reprehensible, we
cannot say that the trial court’s decision to grant
custody to Kirby is clearly against the preponderance of the evidence.”
California — A settlement has been reached
in Koebke v. Bernardo Heights Country Club, 36
Cal. 4th 824 (Calif. 2005), in which the California Supreme Court had ruled that a woman who
was denied spousal membership benefits for
her same-sex domestic partner by a country
club, could sue for discrimination under the
state’s public accommodations law. The case
had been remanded to the Superior Court for
trial. The terms of the settlement, announced on
January 23, are confidential.
New Jersey — NorthJersey.com reported on
January 11 that attorneys for the borough of
Haledon and Haledon police officer Sgt. James
Len had reached a settlement of his sexual orientation discrimination case pending in state
Superior Court in Paterson on January 10. Len,
who has worked for the department since 1986,
came out to his family as gay in 2002, and
moved out from his wife and children. Len
claimed that soon after word spread about his
being gay, he began to suffer on-the-job harassment and discrimination at the hands of various
co-workers and local government officials, including the mayor and a city councilmember.
Under the terms of the settlement, Len will receive $450,000, mostly from the borough’s insurance carrier, and will be entitled to be considered for promotion without discrimination.
(He claims a prior denial of promotion was discriminatory.) The settlement depended on action from the Borough Council, which will have
to appropriate $30,000 to cover a portion of the
settlement not covered by liability insurance.
New Jersey — The Philadelphia Inquirer reported on January 30 that the Collingswood
Lesbian/Gay Law Notes
School Board had agreed to pay $270,000 to
settle a federal lawsuit under the Family and
Medical Leave Act and the N.J. antidiscrimination law brought by a gay former high school
Spanish teacher, Daniel Curcio. Curcio
claimed that the settlement amounted to a
moral victory for him and an admission that the
school district was in the wrong, while a spokesperson for the district insisted to the press that
the school board denied all wrongdoing and
agreed to settle in order to avoid the uncertainty
and costs of trial. Curcio started teaching at
Collingswood High School in 2000. He claimed
that after he responded honestly to a student
question about whether he was gay in 2002, he
suffered a reprimand for speaking about his
sexuality to students and other teachers and administrators began harassing him, leading to
panic attacks and the need for medical leave.
When he returned from leave, he claims the
district attempted to impose fitness evaluation
requirements that discriminated in violation of
the FMLA and refused to renew his contract for
the following year. Curcio is now employed as a
mental health therapist.
New York — The press took notice when
Aaron Brett Charney, a gay associate at Sullivan
& Cromwell LLP, filed suit in New York State
Supreme Court on January 16, alleging that he
had been subjected to discrimination on the basis of sexual orientation at the firm and had suffered retaliation in response to complaining to a
designated partner within the firm. Charney’s
lengthy complaint, which circulated via email
among gay lawyers in the city, elicited a statement from S&C denying Charney’s allegations
and trumpeting the firm’s pro bono work on gay
rights cases and several openly gay partners.
Charney’s complaint details a variety of incidents and situations that he interpreted as motivated by anti-gay bias on the part of particular
partners. Charney claims that his internal complaints led to a coordinated effort within S&C to
discredit him, including having a gay partner
try to undermine Charney’s case by inviting
him to work together on a matter. Charney
claims that two partners conspired to produce a
false evaluation of his work that charged him
with over-billing a client, and that much of the
action against him seems to be based on incorrect perceptions that he was having an affair
with another male associate, a non-gay attorney
with whom Charney was partnered on several
client matters. Charney alleged that the firms
internal grievance process did not subject partners to any discipline for violations of the civil
rights of associates, and that the actions of various partners caused him severe emotional distress requiring professional help and prescription medications. Charney sought
compensatory and punitive damages in his
complaint, as well as costs and attorney fees.
He is representing himself in the matter, having
told the press that an attorney who represented
February 2007
him earlier regarding his internal complaint
feared to take on the high-power lawyers who
would be representing Sullivan in litigation.
New York Times, New York Law Journal, Complaint in Charney v. Sullivan & Cromwell LLP,
Index No. 07–100625 (N.Y. Supreme Ct., N.Y.
Co., filed January 16, 2007). Charney’s lawsuit
quickly became the subject of comment on numerous blogs, which reported that S&C had
hired outside counsel to represent it in the lawsuit, and that the other associate with whom
Charney had been associated had also hired
counsel.
Vermont — In the ongoing litigation between
a former lesbian couple, one now living in Vermont, the other now living in Virginia with their
child, the Rutland Family Court ordered Janet
Jenkins, the Vermonter and non-biological
mom, to make monthly child support payments
of $240, having won a court order that she be allowed to exercise visitation rights. Lisa Miller,
the biological mom living in Virginia, did not
pick up the certified letter containing the first
monthly check from the post office, according
to Jenkins. Orlando Sentinel, Jan. 15. Miller
lost her case to reject any parental rights for
Jenkins in the Virginia Court of Appeals, but
may still be seeking state supreme court review.
Washington — A transsexual’s claims that
difficulties in finding work due to employer reluctance to hire transsexuals should mitigate
her child support obligations met with little
sympathy from the Washington Court of Appeals. Ruling in Marriage of Stankovich, 2007
WL 241794 (Jan. 30, 2007)(unpublished
opinion), the court affirmed a trial court contempt order while approving the trial court’s
decision to impute a monthly income of
$1500.00 to Kimberly Stankovich. Born genitally male, Stankovich married and had two
children, but eventually began identifying as
female in 2002 “after struggling with transgender issues throughout the marriage,” and filed
for divorce in 2004. Stankovich had been an
auto mechanic, and during the relevant time
periods had drifted between various jobs and
student status, as she had decided to seek
higher education. Based on her trade and prior
employment, the trial court imputed substantial income to her and ordered support payments, but Stankovich fell behind and the litigation ensued. The appeals court, in an opinion
by Judge Brown, found that due to her sporadic
employment, and cash receipts for under-thetable auto mechanic work, it was hard to document Stankovich’s actual income, but the trial
court did the best it could under the circumstances, and the appeals court found no abuse
of discretion. The court also approved the brief
jail time that Stankovich had to serve as part of
purging the contempt. A.S.L.
Criminal Litigation Notes
33
Military — In U.S. v. Jaeger, 2007 WL 17767
(U.S. Air Force Ct. Crim. App., Dec. 14,
2006)(not reported in M.J.), the court refused to
reverse a sodomy conviction of an Air Force
lieutenant who had sex with a 15–year-old boy
in a hotel room that the lieutenant rented after
meeting the boy on-line. Lt. Jaeger’s defense to
the sodomy charge was that the sex was consensual and that he did not know the boy was a minor, thus their activity should be found constitutionally protected under Lawrence v. Texas.
The appeals court, in an opinion by Judge
Mathews, agreed with the General Court Martial that convicted Jaeger that the evidence belied his claim of ignorance about the boy’s age.
Most importantly, the boy’s website said he was
15 and showed him attending high school
classes, and he testified that his age was a subject of conversation with Lt. Jaeger, who even
engaged in a strategm to obtain the boy’s grandmother’s permission for him to stay out overnight. Lawrence has yet to be held to extend
protection to sexual activity between minors
and significantly older adults.
Kansas — Predictably, the Court of Appeals
of Kansas ruled on January 26 in State v. Irby,
2007 WL 219971, that a man convicted of aggravated criminal sodomy for engaging in oral
sex with a ten-year-old girl could not use Lawrence v. Texas to attack his conviction. Irby argued that the broadly-worded state sodomy law
was unconstitutional on its face because it
could be construed to apply to consensual adult
conduct. The court pointed out, per curiam,
that the Supreme Court’s decision in Lawrence
clearly did not apply to cases involving sex with
minors. Many states have failed to “clean up”
their sodomy statutes since Lawrence, but
courts have generally resisted holding the laws
unconstitutional in criminal cases where the
facts do not fit the Lawrence scenario of private,
adult consensual sex.
Massachusetts — Mass. Supreme Judicial
Court unanimously affirmed the first-degree
murder conviction of Paul R. Nolin, Jr., charged
with murdering Jonathan Wessner on the morning of September 20, 2003. Commonwealth v.
Nolin, 2007 WL 80413 (Jan. 16, 2007). Regardless which version of the facts one believes, an element of sexuality enters into the
case. Nolin contended that he and Wessner had
consensual sex on the morning in question and
then went their separate ways. The prosecutor
contended that Nolin tried to get Wessner to
have sex with him, leading to argument, fight,
and Nolin killing Wessner and trying to conceal
the body. The opinion for the court by Justice
Cordy, summarizing the evidence, sounds like a
recitation of a plot summary from a film noir
murder mystery. The Supreme Judicial Court
found that Nolin had pointed to several real errors in the trial, but that none of them affected
34
the outcome sufficiently to justify doing anything other than affirm the verdict. Nolin had
particular raised the prosecutor’s use of the homosexual angle during his closing argument as
an issue on appeal, but the court did not agree.
“We have particularly recognized the need for
trial judges to be sensitive to this question,”
wrote Justice Cordy. “ Here, though, we conclude that there was no undue bias, either in the
prosecutor’s statements or in the trial as a
whole. The prosecutor made no unnecessary
repetition fo the fact that the alleged assault was
homosexual, nor did he make any unduly
graphic description of it. He did not otherwise
raise the topic at trial except when Nolin himself testified that he had taken Wessner to the
boat house for sex. For her part, the judge at voir
dire told each member of the venire that the
case would include evidence of ‘homosexual
activity,’ and excluded anyone who did not affirmatively and unequivocally state that this
would not affect his or her ability to decide the
case fairly and impartially.”
Michigan — Should adultery be subject to a
maximum sentence of life imprisonment? The
Michigan Supreme Court will be pondering this
question when it considers the appeal in People
v. Waltonen, 2006 WL 3240002 (Mich. Ct.
App., Nov. 7, 2006), in which, reversing a ruling by the trial court, a unanimous panel of the
court of appeal held that under the literal construction mandated by the Supreme Court for
state statutes, it was obligated to find that under
520(b)(1)(c) of the Michigan Penal Code, a
criminal defendant is subject to prosecution for
Criminal Sexual Conduct in the first degree
whenever he “engages in sexual penetration
with another person” and the “sexual penetration occurs under circumstances involving the
commission of any other felony.” Criminal sexual conduct under this provision is a first degree felony with a potential sentence of life in
prison. In the course of issuing this ruling,
which involved a man being prosecuted with
selling drugs for sex, the court noted in a footnote that adultery remains a felony under the
Michigan Penal Code, so theoretically anybody
who “engages in sexual penetration” while
committing adultery would be subject to prosecution under this statute, regardless whether
the sex itself is consensual. Of course, there
may be some question about the constitutionality of this… A.S.L.
Legislative Notes
Federal — U.S. Senator Gordon Smith (RWashington) proposed an amendment to pending minimum wage legislation that would eliminate a provision in the tax code that requires
employees who receive domestic partnership
benefits for their unmarried partners to report
this as income and pay federal taxes on it as
such. Smith said that the purpose of his amend-
February 2007
ment was to encourage more employers to extend such benefits to their workers. “I am for
cutting taxes, and this amendment does just
that,” Smith told the press. Similar measures
have been proposed without success in the last
two sessions of Congress. 365Gay.com, Jan. 24.
Senate Democrats were determined to avoid
loading up the minimum wage bill with tax-cut
amendments desired by the Republicans, however, and committee chair Sen. Max Baucus
(D-Mont.) demanded that the amendment be
withdrawn. Baucus, who is otherwise a supporter of the idea, said that the committee
would consider health-related amendments to
the tax code at another time. 365Gay.com, Jan.
27.
Connecticut — Governor M. Jodi Rell stated
that she would veto any measure intended to allow same-sex marriage in Connecticut. The
recently-re-elected governor, speaking at a
news conference, indicated that she thought the
state had followed the proper path by enacting a
civil union bill making available all the state
law rights of marriage for same-sex couples. A
state trial judge had agreed with this logic, finding that enactment of the civil union bill left no
significant equal protection argument open to
challenge the exclusion of same-sex couples
from marriage. That case is on appeal, while
gay rights advocates in the state are still hoping
to get a marriage bill through the legislature.
Advocate, January 27. On January 31, State
Senator Andrew McDonald (D-Stamford) and
Representative Michael Lawlor (D-East Haven) announced that they would be introducing
a marriage equality bill. Both legislators are
openly gay. House Majority Leader Christopher
Donovan (D-Meriden) voiced support for the
bill but said he doubted there was sufficient
support at this point to get it through the House.
Advocate, Feb. 1.
Hawaii — State Senator Gary Hooser has introduced SB–1062, which would permit two
unrelated people at least 16 years old to obtain
a civil union license without regard to their gender. Hawaii was the location of the first (temporarily) successful litigation for same-sex marriage, which triggered a state constitutional
amendment giving the legislature the sole
authority to make law on the subject of samesex marriage. The amendment was part of a political process that also provided a limited
package of rights to same-sex partners under
the rubric of “reciprocal beneficiaries.” The
proposed civil union bill would join with Vermont, Connecticut, and New Jersey in extended
to unmarried cohabiting couples a package of
rights and responsibilities approximating those
available under state law for traditional heterosexual marriage. Honolulu Star-Bulletin, Jan.
28.
Kansas — On January 9, a majority of city
commissioners in Lawrence, Kansas, stated
support for a proposal to establish a domestic
Lesbian/Gay Law Notes
partnership registry in the city to provide legal
recognition for same-sex couples, but stopped
short of adopting the measure to await an opinion from Attorney General Paul Morrison as to
whether the Kansas anti-gay marriage amendment would be an obstacle to adoption of the
program. Registration would not grant any legal
rights, but would be useful for those employed
at one of the many major national companies
that do business in Lawrence and environs and
provide domestic partnership benefits to those
who can document their relationship. The commissioners expressed no interest in extending
domestic partnership benefits to employees
who register their partners with the city. Lawrence Journal-World, Jan. 10.
Wisconsin — Madison — After a member of
the city’s Equal Opportunity Commission resigned rather than take the oath of office to support the state constitution, which was recently
amended to ban same-sex marriages, city officials in Madison decided that they needed to
provide a way for people to take the oath without
compromising their principles. The amendment, which passed with 59 percent of the vote
statewide, was notably unpopular in Madison,
where 76% of the voters opposed it. So the City
Council voted 13–4 on January 16 to modify the
oath requirement so that those who oppose the
amendment can include an extra statement indicating that they are taking the oath under protest because the amendment “besmirches our
constitution.” This appears to be the first time
that a municipality has altered its oath of office
in response to the enactment of an antimarriage state constitutional amendment. Chicago Tribune, Jan. 18.
Wyoming — Fearful that the wild-eyed liberals who control the judiciary and executive
branch of the state government might decide to
accord legal recognition to marriages between
same-sex couples performed elsewhere, the
Wyoming Senate voted 21–8 in favor of a bill
that would ban such recognition. Wyoming already has a Defense of Marriage Law that provides that only marriages between a man and a
woman may be performed in the state, but supporters of the new law stated fears that this
might not be seen by the court’s as an adequately clear statement of public policy to prelude recognizing such marriages performed out
of state. They said the purpose of the measure
was to strengthen traditional marriage.
365Gay.com, Jan. 31. A.S.L.
Law & Society Notes
Transgender Law — The San Francisco Chronicle ran a feature article on January 31 about the
difficulties that some transgender persons experience in paying for their gender reassignment surgery. Although some large employers
do provide coverage for these procedures as
part of employee benefits plans, most do not.
Lesbian/Gay Law Notes
The article reported, however, that there has
been a recent increase in the number of large
employers who offer coverage for this purpose,
probably following the spreading trend of enactment of laws protection transgender persons
from discrimination. (These state and local
laws do not directly affect the issue, because of
federal preemption in the sphere of employee
benefits regulation, but their passage and existence has played an important role in mainstreaming understanding and acceptance of
transsexuality, so that coverage of these procedures may become a point of pride for employers who want to boast about how comprehensive
and up-to-date their employee benefits package is.) A side-bar article did point out that,
ironically, most LGBT organizations do not provide coverage. Because such organizations are
relatively small, they don’t have the bargaining
power to get insurance companies to alter their
policies to cover such procedures, and they
usually don’t have the budgetary resources to
cover it from their general revenues. According
to the article, the range of expenses runs from
$30,000 to $70,000 for female-to-male transitions, and $50,000 to $67,000 for male-tofemale transitions, with many variations around
the country and limited availability in some
places.
United Nations — The United Nations committee that rules on granting consultative status
to non-governmental organizations remains
predisposed against applications from gay organizations, to judge by its actions on January
29. The committee voted against granting such
status to a gay rights organization from Quebec,
and put off voting on the application from a
Swedish gay rights organization that has been
in existence as a respected political force for
half a century. Bulletin from International Lesbian & Gay Association, Feb. 1. The National
Post, a Canadian newspaper, reported on Feb. 2
that the government had expressed alarm at the
“pattern of discrimination” against gay people
at the U.N., and reported that Muslim countries
took the lead in opposing the applications of
gay organizations to have recognized NonGovernmental Organization (NGO) status that
would allow them to participate in various U.N.
activities.
Maryland — Montgomery County — The
county school board voted unanimously to approve a revised sex-education curriculum that
teaches about homosexuality and condom use,
despite opposition from some parents who don’t
want their teenage children to hear about such
things. The curriculum as originally presented
in 2004 was revised in the face of substantial
public opposition and a lawsuit that forced the
board to rethink the program. One minister testified in opposition to the curriculum that it was
a “sex education experiment” that could adversely affect the development of students, asserting that “science has proven that the teen-
February 2007
age brain is not fully developed.” Washington
Times, Jan. 10.
Massachusetts — Governor Deval Patrick,
who took office in January, quickly revoked the
existing state executive order on equal opportunity and affirmative action, E.C. 452, and replaced it with a new one, E.O. 478. The new order includes “sexual orientation” among the
listed grounds of prohibited discrimination by
state government, and uses the term “gender”
rather than “sex,” but provides no explanation
as to whether this is intended to include gender
identity discrimination claims. The order was
signed on January 30.
New Jersey — Attorney General Stuart Rabner issued an opinion to dispel the rather overstated fears articulated by some clergy in the
state who fear being prosecuted if they refuse to
perform ceremonies for same-sex couples when
the Civil Union Law goes into effect on February 19. Rabner opined that clergy could not be
compelled to perform any ceremony that would
contravene the tenets of their religion, an essential aspect of free exercise of religion and
separation of church and state. Broadcast News
— The Canadian Press, Jan. 12, 2007. The tet
of Rabner’s Formal Opinion No. 1–2007 was
published in the New Jersey Law Journal on
January 22, taking the form of a letter to Joseph
Komosinski, State Registrar of Vital Statistics.
New York — New York City Comptroller William Thompson has been using the weight of
the city’s pension funds to advance gay rights
protections at corporations in whom the city invests. Gay City News reported on Feb. 1 that
First Horizon National Corp., a financial services firm with more than 13,000 employees in
40 states, agreed to adopt a sexual orientation
and gender identity non-discrimination policy
after Thompson indicated he would introduce a
shareholder resolution on behalf of the NYC
Employees’ Retirement System and other pension funds he directs if the corporation did not
take the action voluntarily.
North Carolina — Gay penguins caused a
real flap in Charlotte. A few parents of children
in the Charlotte-Mecklenburg schools raised
concerns about a book in the school library
called “And Tango Makes Three,” based on the
true story of two male penguins at New York’s
Central Park Zoo who collaborated on hatching
an egg and raising the hatchling together. District staff members by-passed their normal procedure for handling such complaints and just
pulled the book from the shelves at the instance
of a county commissioner. The local newspaper
questioned this action, and the school superintendent had the book returned to the shelves after a wave of adverse national media comment.
The district’s library director said that the publicity had made the book a hot item. According
to news reports, this was the first attempt by
anyone to ban a book in the school library in
35
about ten years. Houston Chronicle, Jan. 10.
A.S.L.
International Notes
Australia — Setting up a clash between political free speech and civil rights, the Tasmanian
Anti-Discrimination Tribunal ruled in favor of
investigating charges that the Liberal Party incited hatred against same-sex couples in campaign literature. A transsexual rights activist,
Martine Delaney, filed a complaint with the tribunal, citing gay-bashing language in party
campaign documents. A commissioner who examined the charge rejected the complaint as insubstantial, but the tribunal voted to reverse the
commissioner and order an investigation.
GayNZ, Jan. 20.
Canada — The Supreme Court of Canada
voted 7–2 in Little Sisters Book and Art Emporium v. Commissioner of Customs and Revenue
and Minister of National Review, 2007 SCC 2
(January 19, 2007), that the plaintiff, a small
gay bookstore that has suffered an ongoing
struggle with Canadian Customs about the importation of LGBT-related books and other articles, was not entitled to have the state help finance its continuing litigation over the subject,
even though the Supreme Court had previously
ruled that Customs was violating Charter free
speech rights in its overbroad application of obscenity laws to gay-related material. A trial
judge had agreed that Little Sisters should have
advance costs paid by the state to help finance
its continuing litigation over two books and two
comic books that had been confiscated at the
border, but the British Columbia Court of Appeal disagreed, and was affirmed by the Supreme Court. Generally, state subvention of litigation costs is reserved for extraordinary cases
of high public importance. While acknowledging the significance of Little Sisters’ continuing
battle with customs, a majority of the Supreme
Court did not find the dispute over 4 titles to be
weighty enough to qualify. The dissenters realized the overall significance of the battle, but
could not persuade their colleagues. In a January 23 report on the case, the Globe and Mail
reported that the store’s proprietor, Jim Deva,
would probably have to abandon the litigation,
since his business does not generate enough
cash to meet the costs of continuing litigation
on the matter. Deva said that unless somebody
concerned about the availability of LGBT literature in Canada is willing to come to the rescue, he will have to leave up to Canadian Customs the decision of what he can import for his
customers.
Canada — A three-judge panel of Ontario’s
Court of Appeal ruled in Doe v. Attorney General
of Canada, 2007 ONCA 11 (Jan. 12, 2007),
that regulations requiring men who had sex
with another man even once since 1977 to go
through special procedures in order to be
36
sperm donors did not violate equality requirements of the Canadian Charter of Rights and
Freedoms. A lesbian who sought to become
pregnant through sperm donation and the gay
man who had agreed to serve as her known
sperm donor wanted to be able to use the services of a public health clinic for the insemination process, but under government regulations, the donor would be barred on the grounds
of being a sexually-active gay man unless the
doctor applied for an exception, for which the
donated sperm would have to go through a special 6–month process of screening for HIV and
other sexually-transmitted diseases before it
could be used. By contrast, the clinic would
perform an insemination using sperm from a
spouse or sexual partner of the woman with no
screening process. The plaintiffs claimed that
this differential treatment violated the charter;
that the exemption from the health screening
requirement that would apply to a heterosexual
sex partner should be equally available to a gay
male sperm donor who was selected by the
woman. Affirming a decision by Superior Court
Justice Michael Dambrot, the appeal court, in a
decision by Justice MacPherson, found the
public health concerns to prevail over the
equality claim. The purpose of the regulation
was to protect the health of the woman and her
eventual offspring. To this end, the court found
it rational to exempt regular heterosexual sex
partners and spouses from the testing requirement, on the ground that the woman would already have been exposed to any STDs these donors were carrying, making testing superfluous
when it came to protecting the mother’s health.
The court pointed out that the regulations did
not impose an absolute bar on gay male sperm
donors, but merely interposed a reasonablytailored health requirement. Men over 40 are
also subject to a special testing regime before
they can be donors, due to the heightened risk
of genetic abnormalities in sperm from
middle-aged donors.
Canada — The government has dropped its
opposition to recognizing same-sex marriages
performed outside the country for purposes of
immigration to Canada. Canadian newspapers
reported at the end of January that the Conservative government had been taking the position
that same-sex marriages could be recognized
for immigration purposes only if they were performed in Canada, and at least one of the partners was a Canadian citizen or permanent resident. A news report commenting adversely on
this policy in December apparently prompted
the government to act at the instance of a member of one of the other parties in the Conservatives’ governing coalition, the NDP. In a January 24 letter to the Parliament’s immigration
committee, Citizenship and Immigration Minister Diane Finley stated that the “interim policy” had been changed. “As a result,” she
wrote, “same-sex marriages legally performed
February 2007
in Canada and in foreign jurisdictions are now
recognized for all immigration purposes.”
Czech Republic — For the first time, a gay
man has been awarded damages and an apology for being denied a job on account of his sexual orientation. Lech Sydor was awarded damages amounting to 70,000 koruna, about
$3200.00 US. This was reportedly the first ruling by a Czech court on a sexual orientation discrimination claim. Sydor was offered a job as a
masseur, but the offer was revoked when the
employer learned he was gay. Pink News, Jan.
16.
Italy — Prime Minister Romano Prodi indicated that his government will move ahead with
its proposal to provide legal recognition for unmarried cohabitants (including same-sex couples), even though there is no consensus on the
issue within his political coalition. Prodi said
on Jan. 27 that talks on the issue were moving
“toward a plan that all the coalition will approve.” International Herald Tribune, Jan. 28.
Malaysia — The New Straits Times (Jan. 16)
reports that a hearing has been set for March 12
in a case where the authorities suspect that a
same-sex marriage has been performed. In December 2002, Mohd Sofian married Zaiton Aziz
in a ceremony led by Imam Ishak Judki, all procedures having been complied with. But the
Malacca Religious Affairs Department refused
to record the marriage, suspecting that Mohd
Safian was born female, as the birth certificate
bears the name Mazinah Mohamed. It appears
that the March 12 hearing will be for the purpose of annulling the marriage and order the
parties to separate, if the court finds that a
same-sex marriage, by the court’s definition,
has taken place.
Mexico — On January 10, legislators in Coahuila, a mining and ranching region south of
Texas, approved by 20–13 a bill to provide civil
unions for same-sex couples. The measure was
said to afford more extensive rights than the
similar measure that was approved in Mexico
City last fall. Reuters, Jan. 11.
Russia — Moscow Mayor Yury Luzhkov
stated publicly on January 29 in remarks at a
church conference held in the Kremlin that he
would not allow any gay rights parades to be
held in Moscow because they were “satanic”
events. When the city refused to grant a permit
for a gay rights parade last spring, some marchers showed up anyway, to be met by anti-gay
hooligans. In the resulting melee, many marchers were arrested. An organizer of last year’s
march said that a libel suit would be filed
against Luzhkov. Moscow Times, Jan. 30.
Sweden — A county administrative court in
Gothenburg upheld a local tax authority’s determination that a marriage celebrated in Canada involving a same-sex couple from Sweden
would be reagrded as a registered partnership
under Swedish law, not as a marriage. Sweden
has registered partnerships available for its gay
Lesbian/Gay Law Notes
citizens, but not marriage. The ruling has been
appealed, according to an email report by the
government’s Ombudsman against Discrimination on Grounds of Sexual Orientation, Hans
Ytterberg, distributed on-line on January 16.
••• 365Gay.com reported on Jan. 9 that Judge
Mats Orstadius had rejected petitions to approve two second-parent adoptions for lesbian
co-parents. According to the report, the judge
asserted that the applicants were trying to bypass a Swedish law that allows children to identify their biological parents. “It is not acceptable to use the institution of adoption to in this
way circumvent such a basic right of the child,”
wrote Orstadius, according to the on-line report. “The benefits that the child might gain
from the adoption still do not warrant its approval.” This struck the mothers as strange,
since the children were conceived through donor insemination with anonymously donated
sperm! The petitioners will appeal the ruling.
United Kingdom — The House of Lords
voted 199–68 to reject an appeal against the
Sexual Orientation Regulations going into effect. The Regulations, intended to bring the
U.K. into compliance with European Union
standards on non-discrimination in government programs and public accommodations,
have stirred fierce opposition among those who
believe that those who abominate gays should
be allow to discriminate against them. The
Regulations went into force in Northern Ireland
in January and will become effective in England in April. Daily Mail, Jan. 10.
United Kingdom — The British press has
been full of speculation and controversy over
whether the government would bow to the demands of religious leaders and create exemptions under the Equality Act, which comes into
effect in April in England, Scotland and Wales,
imposing an obligation of non-discrimination
with respect to sexual orientation by private
businesses and public and private institutions.
The head of the Catholic Church in England
stated that the church would have to close its
adoption services rather than comply with the
Act, as the Vatican has instructed Catholic institutions not to place children with gay adoptive parents, and leaders of the Church of England have written the Prime Minister
supporting the creating of religiously-based exemptions, at least for religiously affiliated institutions, even though their own adoption services do not reject gay applicants. The press
reported that there was division over these issues in the Blair Government, with some cabinet ministers favoring the creation of exemptions, and one most prominent minister,
Constitutional Affairs Secretary Lord Falconer,
being strongly opposed to any such exemptions.
A Liberal Democrat MP, Dr. Evan Harris, characterized the lobbying for an exemption as “just
bizarre.” He was quoted in the Daily Mail (Jan.
24) stating: “It is rather sordid that the Catholic
Lesbian/Gay Law Notes
leadership should seek to try to blackmail Parliament and the Government by threatening to
close down its valuable work in adoption and
other areas, particularly by using vulnerable
groups like children in care to fight its ideological battle.” Another observer asserted that the
lack of government funds would force Catholic
adoption services to shut down. A possible
compromise would allow Catholic agencies to
fulfill their obligations by referring gay prospective adoptive parents to other agencies.
The Independent (Jan. 24) speculated that a
source of pressure within the Government was
the Prime Minister’s wife, Cherie Blair, a
Catholic. There was also speculation that when
he steps down as Prime Minister later this year,
Mr. Blair plans to convert to Catholicism, the
religion in which his children are being raised.
On the other hand, Blair’s Government has
been staunchly pro-gay, and the Equality Act
February 2007
without express exemptions is a product of his
Parliamentary majority. Ultimately, the press
reported, a majority of the cabinet opposed the
exemptions, and Blair backed off. Some in the
press reported this as further evidence of
Blair’s weakened authority as a lame duck
prime minister who had announced he would
step down later this year. Birmingham Post,
Jan. 30.
United Kingdom — The Express (Jan. 6) reports that Jessica Bussert, born Josh Bussert,
lost a discrimination claim before a labor tribunal in Reading, when the tribunal found that the
sex reassignment surgery process had so affected her mind that her judgment was “seriously distorted,” thus undermining her claim
that she was demoted at work because she had
taken steps to feminise her looks. She had
claimed sex discrimination, constructive unfair
dismissal, harassment and victimisation
37
against her employer, Hitachi Data Systems,
which had employed her both in the U.S. and
U.K. offices. A complaint still remains in the
United States, according to the article. A.S.L.
Professional Notes
Add to the openly-gay appointees of the new administration of New York State Governor Eliot
Spitzer the former presidential aid Sean Patrick
Maloney, who worked in the Clinton White
House and who finished third in the Democratic primary for state attorney general last
fall, behind Andrew Cuomo and Mark Green.
Despite his third-place showing, Maloney won
widespread media praise for his campaign, appearing the most substantive of the candidates
in televised debates and coming across as
knowledgeable and self-assured. Maloney was
named first deputy secretary to the governor,
essentially deputy chief of staff, according to
the New York Law Journal. A.S.L.
AIDS & RELATED LEGAL NOTES
5th Circuit Rejects Appeal in AIDS Discrimination
Case
A 3–judge panel of the U.S. Court of Appeals for
the 5th Circuit affirmed summary judgment for
the employer in Cruz v. Aramark Services, Inc.,
2007 WL 98358 (Jan. 11, 2007), an HIV and
age discrimination case. The court found, per
curiam, that although the plaintiffs had alleged
a prima facie case, they had not submitted any
admissible evidence to contradict the employer’s proffered non-discriminatory reason for
discharging the late plaintiff, Ralph Cruz.
Cruz, then 61 years old and HIV+, was dismissed from his supervisory job in 1997, ostensibly for improperly authorizing overtime pay
for an employee. At the time, he was assigned to
the cafeteria operation at Baxter Convertible in
Juarez, Mexico. Cruz claimed that this reason
for his discharge was pretextual, and that Aramark wanted to get rid of him because of his age
and HIV status. He filed charges with the
EEOC, which investigated and concluded that
a violation of federal civil rights law had occurred. EEOC initiated attempts at informal
conciliation, which failed, and then issued its
right-to-sue letter. Unfortunately, however, this
process took five years, by which time Cruz was
deceased. His heirs followed up, however, filing
a timely complaint in the U.S. District Court,
Western District of Texas, in December 2002.
In the time that had passed since the discharge, however, several relevant people had
died or left the company and could not be located. The plaintiffs were able to get the EEOC
file on the case and submitted it in opposition to
the summary judgment motion by Aramark.
The main thrust of their attempted case was to
show that Cruz had authorized the overtime
payment with the approval of his supervisor,
who only spoke Spanish. A signed statement
purporting to be that of the supervisor was in the
file. The court concluded that the statement
was not admissible as evidence, not least because the translation into English, which may
or may not have been read or understood by the
supervisor, was made by plaintiffs’ lawyer, an
interested party. The hearsay problems struck
the court as too steep to allow reliance upon this
document. The court of appeals pointed out that
the district court was not bound by the EEOC’s
findings, and that the contents of the EEOC’s
file consisted largely of inadmissible materials.
Thus, there was no evidence to support the
plaintiffs’ theory of the case, and there was evidence submitted by the company in support of
its motion to show that Cruz had, in fact, violated a company rule when he issued the overtime pay to an employee who had not worked
overtime as a way of effectuating a wage increase that had been authorized by management but not yet put into effect, a procedure that
Cruz contended was common and tolerated in
the company. The court affirmed the grant of
summary judgment to the employer. A.S.L.
AIDS Litigation Notes
California — To judge by the frequency with
which these cases come up, it appears that the
California state court system still has not undertaken effective education of its trial judges
as to the requirements of Penal Code 1202.1,
the statute authorizing mandatory HIV testing
of persons convicted of certain sex offenses.
And yet another court of appeal has had to reverse such a testing order and remand for the
development of a proper record, in People v.
Brown, 2007 WL 242365 (Cal., 1st Dist. Ct.
App., Jan. 30, 2007) (not officially published),
a case that came up from Napa Valley Superior
Court. The defendant pled no contest to two
counts of committing a lewd act on a child. The
conduct in question consisted of his feeling her
vagina and manipulating it with his fingers. The
trial judge ordered HIV testing coincident to
imposing a five-year prison term, without making any finding on the record that the defendant
engaged in conduct that could transmit HIV, a
statutory prerequisite. Out of what appears to
be an excess of caution, the Court of Appeal returned the case to the Superior Court to give the
prosecutor a chance to introduce relevant evidence so that a proper determination can be
made whether the factual predicate exists to order HIV testing.
Connecticut — Judge Trial Referee David W.
Skolnick found as a matter of law that Yale New
Haven Hospital did not violate any duty to police officer Jonathan Mulhearn when it refused
to perform HIV testing on an arrestee who allegedly spat blood into Mulhearn’s mouth, face
and nose during an altercation that led both
Mulhearn and the arrestee to be taken to the
hospital. Mulhearn v. Yale New Haven Hospital,
2006 WL 3833526 (Conn. Super. Ct., New Haven, Dec. 11, 2006) (not reported in A.2d).
Connecticut’s AIDS confidentiality statute
does provide for circumstances where HIV testing may be compelled, but spells out a series of
steps that must be taken, which were not taken
by Officer Mulhearn. Among those steps are
that the public safety officer who is seeking to
have a person tested must themselves have a
base HIV test to determine whether they may
have been infected prior to encountering the
person they seek to have tested. Referee Skol-
38
nick found that mandatory testing was not
available unless these steps were complied
with strictly, as the main thrust of the statute
was to protect confidentiality and prevent nonconsensual testing.
Michigan — Was it Charles Dickens who
pointed to an absurd legal result and had one of
his characters observe that if this was the law,
then the law was an “ass”? Anyway, in Jennings
v. Weberg, 2007 WL 80875 (W.D. Mich., Jan. 8,
2007), U.S. District Judge Robert Holmes Bell
said that a prisoner civil rights action alleging
routine failure by prison officials to protect the
prisoner from an HIV+ prisoner who spits and
throws urine specifically at African-American
prisoners must be dismissed because a provision of the statute enacted to cut down on federal prisoner litigation provides that “no Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered
while in custody without a prior showing of
physical injury.” In other words, argues Mr.
Jennings, this statute requires him to be injured
perhaps to become HIV-infected in order for
him to be allowed to sue to prevent such an injury from occurring, an absurd result. Well,
perhaps so, but Judge Bell said that a court
could not “ignore the clear meaning of a federal
statute on the basis of its own conclusion that its
application would be unfair.” Because Congress set up a clear physical injury requirement
as a prerequisite to any “Federal civil action,”
Jennings’ action must be dismissed, regardless
of its merit. Does nobody see a due process issue here?
February 2007
Minnesota — In Lowis v. Park Nicollet Clinic,
2007 WL 92910 (Minn. App., Jan. 16,
2007)(unpublished opinion), the court affirmed the refusal by Hennepin County District
Court to deny posttrial motions including a motion for judgment as a matter of law in the case
of an HIV+ man who suffered severe adverse
side effects on his sight from AIDS-related
medications and wanted to be compensated for
his suffering by the doctor and clinic providing
his treatment. Responding to undesirable side
effects from his existing medicine, his doctor
switched him to a different medication. In retrospect, it seems that Lowis had an allergic reaction to the new medication, which manifested
itself rather quickly and it took some time for
the doctors to figure it out and discontinue the
medicine. Lowis contested several of the trial
judge’s evidentiary rules, precluding his attorney from making use of various medical textbooks to impeach various expert witnesses. The
court upheld the rulings, which resulted in a
verdict of no liability for the defendants.
New York — In 2000, a federal magistrate
entered a default judgment against Maurice
Burnette, who had failed to pay student loans
backed up by the government, and had failed to
appear at a series of hearings that were scheduled on the case. In August 2006, Burnette
filed a motion to vacate the judgment, arguing
that at the time he was recovering from fullblown AIDS, experiencing severe side-effects
from medication, and moving frequently, which
kept him from receiving timely notice of the
hearings. District Judge Sifton expressed sympathy for Burnette’s difficulties back in 2000,
but noted that he had presented no reasons as to
Lesbian/Gay Law Notes
why he waited six years to file his motion, and
also had not pled any facts or reasons going to
the merits of the case. Consequently, the court
could provide no relief and denied the motion.
U.S. v. Burnette, 2007 WL 201164 (E.D.N.Y.,
Jan. 23, 2007).
Oregon — U.S. District Judge Brown ruled in
Zasada v. Gap, Inc., 2007 WL 108935 (D. Or.,
Jan. 8, 2007), that plaintiff failed to state a
claim for intentional infliction of emotional distress. Anthony S. Zasada, living with HIV, informed and documented for his boss at The Gap
that his physician had recommended that he
not be scheduled to work for more than four
consecutive days at a time, due to his physical
condition. The managers efused to comply with
this recommendation, which Zasada claims
caused him emotional distress and led him to
quit his job. He filed suit in state court alleging
disability discrimination in violation of a state
statute and common law wrongful discharge.
Gap removed to federal court based on diversity,a nd won a motion to dismiss both claims,
but the court gave Zasada leave to amend his
complaint to add any other claims he might
have, so he filed a claim for intentional infliction of emotional distress and defendants filed a
new motion. Judge Brown found that Zasada
had alleged the essential elements of the claim
except for one: his factual allegations did not
meet the test of acts that “constituted an extraordinary transgression of the bounds of socially tolerable conduct,” which the court
found to be an essential element under Oregon
law. The mere fact of refusal to comply with the
doctor’s scheduling recommendation was held
to fall far short of the few cases in which Oregon
courts had upheld a claim on this legal theory.
A.S.L.
Lesbian/Gay Law Notes
February 2007
39
PUBLICATIONS NOTED & ANNOUNCEMENTS
Movement Positions
The Sylvia Rivera Law Project is accepting applications for a staff attorney position to work on
transgender rights cases. The staff attorney will
work on “direct services, impact litigation,
public education, policy work, and communit
organizing” related to the rights of “low-income
transgender, intersex, and gender nonconforming people of color.” Attorneys admitted to
practice in New York are preferred, and fluency
in both Spanish and English is desired, as is
substantial civil rights litigation or legal services experience and public speaking experience. Compensation is at least $42,848 per
year with full medical and dental benefits, vacation time and payment of professional fees.
Start date is projected for April 2, 2007. Applications should be sent by snail mail to: Attorney
Hiring Committee, Sylvia Rivera Law Project,
322 8th Avenue, 3rd Floor, New York NY
10001, and must arrived by March 5.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Ake, Adam K., Unequal Rights: The Fourteenth
Amendment and De Facto Parentage, 81 Wash.
L. Rev. 787 (Nov. 2006).
Araujo, Derek C., A Queer Alliance: Gay
Marriage and the New Federalism, 4 Rutgers J.
L. & Urb. Pol’y 200 (Fall 2006).
Carter, Nate, Shocking the Conscience of
Mankind: Using International Law to Define
“Crimes Involving Moral Turpitude” in Immigration Law, 10 Lewis & Clark L. Rev. 955
(Winter 2006).
Conkle, Daniel O., Three Theories of Substantive Due Process, 85 N.C. L. Rev. 63 (Dec.
2006).
Cretney, Stephen, Same Sex Relationships:
From ‘Odious Crime’ to ‘Gay Marriage’ (Oxford, UK: Oxford University Press 2006).
DuBoisson, Eva, Teaching From the Closet:
Freedom of Expression and Out-Speech by Public School Teachers, 85 N.C. L. Rev. 301 (Dec.
2006).
Enriquez, Roger, Jeffrey M. Cancino & Sean
P. Varano, A Legal and Empirical Perspective on
Crime and Adult Establishments: A Secondary
Effects Study in San Antonio, Texas, 15 Am. U.
J. Gender, Soc. Pol’y & L. 1 (2006).
Filisko, G.M., The Rites Wrangle: SameSex-Marriage Advocates Vow to Fight On, Despite a Summer of Rulings Against Their Cause,
92–NOV A.B.A. J. 44 (Nov. 2006).
Fletcher, Matthew L.M., Same-Sex Marriage, Indian Tribes, and the Constitution, 61 U.
Miami L. Rev. 53 (Oct. 2006).
Frey, Andrew, Amici Curiae: Friends of the
Court or Nuisances?, 33 No. 1 Litigation 5 (Fall
2006).
Gardina, Jackie, The Perfect Storm: Bankruptcy, Choice of Law, and Same-Sex Marriage,
86 B.U. L. Rrev. 881 (Oct. 2006).
Garry, Patrick M., A Different Model for the
Right to Privacy: The Political Question Doctrine as a Substitute for Substantive Due Process,
61 U. Miami L. Rev. 169 (Oct. 2006).
Geiger, Wendy L., and Hans Egil Offerdal,
Being Human and Gay/Lesbian: A Comparative Perspective of Canadian and U.S. Political
Discourse, 2006 J. Inist. Just. Int’l Stud. 139
(2006).
Gray, Jeremy J., The Military’s Ban on Consensual Sodomy in a Post-Lawrence World, 21
Wash. U. J. L. & Pol’y 379 (2006).
Gudorf, Christine E., Book Review, Blessing
Same-Sex Unions: The Perils of Queer Romance
and the Confusions of Christian Marriage by
Mark D. Jordan, 21 J. L. & Religion 445
(2005–2006).
Halpin, Stanley A., Looking Over a Crowd
and Picking Your Friends: Civil Rights and the
Debate Over the Influence of Foreign and International Human Rights Law on the Interpretation of the U.S. Constitution, 30 Hastings Int’l &
Comp. L. Rev. 1 (Fall 2006).
Heinze, Eric, Viewpoint Absolutism and Hate
Speech, 69 Modern L. Rev. 543 (July 2006).
Hippensteele, Susan K., Mediation Ideology: Navigating Space From Myth to Reality in
Sexual Harassment Dispute Resolution, 15 Am.
U. J. Gender Soc. Pol’y & L. 43 (2006).
Hogg, Peter, Canada; The Constitution and
same-sex marriage, 4 I-Con (Int’l J. Const. L.)
712 (Oct. 2006).
Inlender, Talia, The Imperfect Legacy of
Gomez v. INS: Using Social Perceptions to Adjudicate Social Group Claims, 20 Geo. Immigr. L.
J. 681 (Summer 2006).
Katyal, Sonia K., Performance, Property, and
the Slashing of Gender in Fan Fiction, 14 J.
Gender, Soc. Pol’y & L. 463 (2006).
Krotoszynski, Ronald J., Jr., Dumbo’s
Feather: An Examination and Critique of the
Supreme Court’s Use, Misuse, and Abuse of Tradition in Protecting Fundamental Rights, 48
Wm. & Mary L. Rev. 923 (Dec. 2006).
Leading Cases, Freedom of Expressive Association Campus Access for Military Recruiters,
120 Harv. L. Rev. 253 (Nov. 2006).
Long, Justin, Intermittent State Constitutionalism, 34 Pepp. L. Rev. 41 (2006).
Lorden, C. Susie, The Law of Unintended
Consequences: The Far-Reaching Effects of
Same-Sex Marriage Ban Amendments, 25 QLR
211 (2006).
Mabry, Cynthia R., Opening Another Exit
From Child Welfare for Special Needs Children
Why Some Gay Men and Lesbians Should Have
the Privilege to Adopt Children in Florida, 18
St. Thomas L. Rev. 269 (Winter 2005).
McCluskey, Martha T., Thinking With
Wolves: Left Legal Theory After the Right’s Rise,
54 Buff. L. Rev. 1191 (Jan. 2007).
Nauman, Douglas E., Where Sexual Privacy
Meets Public Morality: How Williams v. King is
Instructive for the Fourth Circuit in Applying
Public Morality as a Legitimate State Interest
After Lawrence v. Texas, 29 N.C. Cent. L.J. 127
(2006).
Ramsey, Shane, Opting Out of Public School
Curricula: Free Exercise and Establishment
Clause Implications, 33 Fla. St. Univ. L. Rev.
1199 (Summer 2006).
Roach, Paula, Parent-Child Relationship
Trumps Biology: California’s Definition of Parent in the Context of Same-Sex Relationships, 43
Calif. Western L. Rev. 235 (Fall 2006).
Salvo, Jason J., Naked Came I:
Jurisdictiion-Stripping and the Constitutionality of House Bill 3313, 29 Seattle U. L. Rev. 963
(Summer 2006).
Simpson, Evan, Responsibilities for Hateful
Speech, 12 Legal Theory 157 (June 2006).
Simson, Gary J., Beyond Interstate Recognition in the Same-Sex Marriage Debate, 40 U.C.
Davis L. Rev. 313 (Dec. 2006).
Singleton, David A., Sex Offender Residency
Statutes and the Culture of Fear: The Case for
More Meaningful Rational Basis Review of
Fear-Driven Public Safety Laws, 3 U. St. Thomas L. J. 600 (Spring 2006).
Sofio, Lisa, Recent Developments in the Debate Concerning the Use of Foreign Law in Constitutional Interpretation, 30 Hastings Int’l &
Comp. L. Rev. 131 (Fall 2006).
Still, Kyle, Smith‘s Hybrid Rights Doctrine
and the Pierce Right, 85 N.C. L. Rev. 385 (Dec.
2006).
Strasser, Mark, Lawrence, Lofton, and Reasoned Judgment: On Who Can Adopt and Why,
18 St. Thomas L. Rev. 473 (Winter 2005).
Strossen, Nadine, Reproducing Women’s
Rights: All Over Again, 31 Vt. L. Rev. 1 (Fall
2006).
Taylor, Arthur H., Fear of an Article V Convention, 20 BYU J. Pub. L. 407 (2006).
Tomsen, Stephen, Homophobic Violence,
Cultural Essentialism and Shifting Sexual
Identities, 15 Social & Legal Studies 389 (September 2006).
Wardle, Lynn D., The “Inner Lives” of Children in Lesbigay Adoption: Narratives and
Other Concerns, 18 St. Thomas L. Rev. 511
(Winter 2005) (Staunch opponent of gay parenting and same-sex marriage mines the literature for scare stories by children raised in gay
households).
Wilkinson, J. Harvie III, Gay Rights and
American Constitutionalism: What’s a Constitution For?, 56 Duke L.J. 545 (Nov. 2006)
(Conservative federal circuit judge argues prin-
40
cipled opposition to federal and state constitutional amendments that would freeze a heterosexual definition of marriage; expansion of
argument contained in op-ed article published
in Washington Post prior to fall 2006 elections
in which 8 such amendments were on state ballots).
Williams, Camille S., Women, Equality, and
the Federal Marriage Amendment, 20 BYU J.
Pub. L. 487 (2006).
Winkler, Adam, Fundamentally Wrong About
Fundamental Rights, 23 Const. Comment. 227
(Summer 2006).
Wintemute, Robert, Same-Sex Couples in
Secretary of State for Work and Pensions v. M:
Identical to Karner and Godin-Mendoza, Yet No
Discrimination?, 2006 European Hum. Rts. L.
Rev. 6:722.
Wintemute, Robert, The Human Rights Act’s
First Five Years: Too Strong, Too Weak, or Just
Right?, 17 King’s Coll. L. J. 209 (2006).
Specially Noted:
The email listserve on same-sex couple legal
recognition has evolved into a blog, which can
be viewed at http://samesexmarriage.typepad.com/weblog/.
February 2007
The editor of this newsletter also maintains a
blog that comments on LGBT and AIDS-related
legal developments, among other things, which
can be viewed at http://blogs.nyls.edu/leonardlink/.
AIDS & RELATED LEGAL ISSUES:
Abbott, Thomas N., Kaplan and “Regarded
As”: Does the ADA Discriminate Between Real
and Perceived Disability?, 39 Loyola L.A. L.
Rev. 883 (Aug. 2006).
Anderson, Cheryl L., What Is “Because of the
Disability” Under the Americans With Disabilities Act? Reasonable Accommodation, Causation, and the Windfall Doctrine, 27 Berkeley J.
Emp. & Lab. L. 323 (2006).
King, Jamie Staples, and Benjamin W. Moulton, Rethinking Informed Consent: The Case for
Shared Medical Decision-Making, 32 Am. J. L.
& Med. 429 (2006).
Long, Alex B., (Whatever Happened to) the
ADA’s “Record of” Prong(?), 81 Wash. L. Rev.
669 (Nov. 2006).
Reim, Regine (translation and introduction),
The New Kyrgyz Legislation on HIV and AIDS,
47 Jahrbuch fur Ostrecht No. 1, 139 (2006).
Lesbian/Gay Law Notes
Richter, Marlise, Are Nursery Schools ‘Nice
Places’ for Children with HIV/AIDS? The Case
of Karen Perreira v. Buccleuch Montessori
Pre-School and Primary (Pty) Ltd., 123 S. African L. J. Pt. 2, 224 (2006).
Rodney, Michael, and David Barraclough,
Human Rights: AIDS, Expulsion and Article 3
of the ECHR: N v. Secretary of State for the
Home Department, 40 L. Teacher 207 (2006).
Weijer, Charles, and Guy J. LeBlanc, The
Balm of Gilead: Is the Provision of Treatment to
Those Who Seroconvert in HIV Prevention Trials
a Matter of Moral Obligation or Moral Negotiation?, 34:4 J. L. Med. & Ethics 793 (Winter
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.