UTAH SUPREME COURT REJECTS LESBIAN CO-PARENT VISITATION CLAIM

March 2007
UTAH SUPREME COURT REJECTS LESBIAN CO-PARENT VISITATION CLAIM
The Utah Supreme Court rejected a lesbian
co-parent’s claim for visitation with the child
conceived and raised with her Vermont civil
union partner, reversing a trial court decision in
Jones v. Barlow, 2007 UT 20 (February 16,
2007). The court rejected the use of the “in loco
parentis” common law doctrine by the trial
court, and also rejected the dissenting chief
justice’s argument that the court should embrace a “de facto parent” doctrine to deal with
non-traditional family visitation cases.
According to the opinion for the court by Justice Jill N. Parrish, Barlow and Jones went to
Vermont to enter into a civil union, in 2000. At
around that time, they had decided to have children through donor insemination and raise
them together as a family. Their plan was for
Barlow to have the first child, and for Jones to
have a child at a later time. They jointly selected a sperm donor “who shared both of their
characteristics.” Barlow became pregnant in
February 2001, and Jones participated with
Barlow in prenatal care. Barlow gave birth to a
healthy baby girl in October 2001, whose surname was listed as “Jones Barlow” on the birth
certificate. In May 2002, both women appeared
in state district court in Salt Lake City to obtain
an order designating them as co-guardians of
the child. Jones participated in raising the child
as a co-parent for the first two years of the
child’s life.
However, shortly after the child’s second
birthday, Jones and Barlow ended their relationship and Barlow moved out of the family
home with the child. Barlow successfully obtained an order from the district court terminating Jones’s co-guardianship of the child, over
Jones’s protest. Barlow eventually ended Jones’s contact with the child, and Jones filed suit
in the district court, seeking a “decree of custody and visitation.” Judge Timothy R. Hanson
found in the first part of a bifurcated proceeding
that Jones could claim “in loco parentis”
status, conferring standing to seek visitation
status. In the second part of the proceeding,
Judge Hanson determined that it would be in
the child’s best interest to establish a visitation
schedule for Jones, and also ordered that Jones
contribute to the financial support of the child.
LESBIAN/GAY LAW NOTES
Barlow appealed to the court of appeals, which
certified the case directly to the Supreme Court.
The court was unanimous on the threshold
question of whether Jones could seek visitation
rights using the “in loco parentis” theory. That
theory has been used under the common law to
recognize certain parental rights and obligations for a person who is occupying the position
of a parent but who is not legally related to the
child. Justice Parrish wrote that “the in loco parentis relationship is temporary in nature,” and
that the reciprocal duties of parent and child
continue only so long as the relationship continues. However, the court found that contrary
to the implications of some of its prior opinions,
a legal parent can terminate the “in loco parentis” relationship of a third party at any time unilaterally, just as somebody who occupies that
status can terminate it by abandoning the relationship. Stressing the temporary nature of the
relationship, the court concluded that once
Barlow had moved out with the child and prevented Jones from having further contact, the
“in loco parentis” relationship had been effectively terminated, and thus could not provide
the basis for Jones to have standing to seek visitation. Judge Hanson’s conclusion that maintaining contract between Jones and the child
was in the best interest of the child was essentially irrelevant, if Jones had no standing to
seek visitation in the first place.
The court distinguished its prior caselaw
dealing with stepparents, finding the issues
distinguishable, and rejected the dissent’s call
for the court to engage in common law development to fill a gap left by the state’s statutory
scheme governing custody and visitation.
“What Jones essentially asks us to do is recognize a new judicial doctrine in Utah that creates
in a third party the right to seek visitation with a
child in contexts outside those recognized by
this state’s domestic relation laws,” wrote Parrish. “Whatever label is applied to such a doctrine, it is clear that the common law concept of
in loco parentis does not reach so far.... We decline to craft such a doctrine. First, adopting a
de facto parent doctrine fails to provide an
identifiable jurisdictional test that may be easMarch 2007
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NYC 10013, 212-431-2156, fax 431-1804; e-mail: [email protected] or
[email protected]
Contributing Writers: Chris Benecke, Cardozo Law School ‘08; 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.
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©2007 by the LeGaL Foundation of the LGBT Law Association of Greater New York
ISSN 8755–9021
ily and uniformly applied in all cases. A de
facto parent rule for standing, which rests upon
ambiguous and fact-intensive inquiries into the
surrogate parent’s relationship with a child and
the natural parent’s intent in allowing or fostering such a relationship, does not fulfill the traditional gate-keeping function of rules of standing.”
Parrish also insisted that embracing a de
facto parent doctrine “would exceed the proper
bounds of the judiciary,” arguing that common
law rule-making should proceed through small
adjustments in the existing body of doctrine,
rather than taking significant steps that substantially change the law. “Although principled
arguments can be made for the adoption of a de
facto parent doctrine, such arguments are ultimately based upon policy preferences, rather
than established common law,” she insisted.
“Jones asks this court to exercise the wisdom of
Solomon by adopting a de facto parent doctrine
based upon our weighing of the competing policies at play. Although this court is routinely
called upon to make difficult decisions as to
what the law is, or even to fill the interstices of
jurisprudence, in this case we are asked to create law from whole cloth where it currently does
not exist. While the distinction between applying the law to unique situations and engaging in
legislation is not always clear, by asking us to
recognize a new class of parents, Jones invites
this court to overstep its bounds and invade the
purview of the legislature.” Parrish concluded
that courts are “ill-suited for such ventures,”
and that existing common law doctrine militated against what Jones was seeking, since it
only recognized biological or adoptive parents
as having parental rights.
Finally, Parrish asserted that “the de facto
parent doctrine conflicts with Utah statutory
law,” because the existing Utah statutes make
no provision for non-traditional families and
specifically provides a statutory list of ways in
which a person can have a legally-recognized
relationship with a child, including allowing an
“immediate family member” to seek visitation
in the context of a divorce, or a grandparent to
seek visitation in certain listed circumstances.
The court took this to mean that claims lying
outside the statutes should not be allowed. Interestingly, the majority made nothing of the
fact that Barnes and Jones were Vermont civil
union partners when their child was conceived
and born, not even bothering to discuss whether
or why this fact would have any bearing on
whether Jones could be considered an “immediate family members” of Barnes and the child.
Under Vermont law, of course, she would be
42
considered a parent in light of this factual constellation.
Chief Justice Christine M. Durham pointed
out this failure of the majority opinion in her
dissent, but focused most of her attention on arguing in support of the de facto parent concept,
which she noted had been adopted in several
other states. Durham rejected Parrish’s argument that the administrative convenience of the
court in avoiding fact-intensive standing inquiries could justify erecting a standing barrier
to the determination of the best interest of the
child in the context of a non-traditional family.
Contrary to the majority, she asserted that the
legislature has not addressed the issues raised
by this case, as it had not taken any specific account of non-traditional families in its custody
and visitation statutes, and thus she contended
that the court should exercise its common law
function of adjusting doctrine to new realities.
Durham pointed out that the term “immediate family member” is not defined in the family
law provisions, but that elsewhere in the Utah
statutes, in the anti-stalking law, there is a definition that includes “any other person who
regularly resides in the household or who regularly resided in the household within the prior
six months.” “I believe Jones satisfies any reasonable definition of immediate family member
because she was, de facto, the child’s parent,”
argued Durham. “By caring for the child from
March 2007
her infancy and for the first two years of her life,
Jones, with the acquiescence and encouragement of Barlow, acted as the child’s ‘other parent.’ Although the reality and nature of this relationship has not been explicitly
acknowledged by Utah’s statutory law, Jones
and Barlow did everything with their power to
make Jones the legal equivalent of a parent.”
While agreeing with the majority that the “in
loco parentis” doctrine could not be pressed
into service in this case, Durham concluded
that Jones should be able to seek visitation as a
“de facto parent,” and suggested taking the
verbal formulation for this doctrine that was developed in other jurisdictions and collapsing it
into a two part test. She would require “that a
third party claiming de facto parent status establish by clear and convincing evidence that
(1) the legal parent intended to create a permanent parent-child relationship between the
third party and the child, and (2) an actual
parent-child relationship was formed. To establish the second element, a third party must, at a
minimum, present evidence demonstrating that
the third party lived with and cared for the child
and that, as a result, a parent-child bond developed between the third party and the child.”
Durham also found that the evidence Jones
presented at trial would support both of these
elements, thus giving her standing to seek visitation, and that there was adequate support for
Lesbian/Gay Law Notes
Judge Hanson’s evaluation of the “best interest
of the child” question to justify affirming the
visitation order on this alternative doctrinal
ground.
Finally, Durham defended the constitutionality of her approach to the case, pointing out
critical distinctions from the U.S. Supreme
court’s decision in Troxel v. Granville, 530 U.S.
57 (2000), which had struck down a Washington state statute that authorized courts to grant
visitation to any third party who applied if the
court concluded that visitation was in the
child’s best interest. This was found to impose
too much an imposition on the constitutional
rights of legal parents, but the Supreme Court
had not ruled out the possibility that a state
could authorize third-party visitation in a narrower set of circumstances. Durham argued
that the test she set out for determining de facto
parent status was merely a threshold test in any
event, for it would merely determine that a particular individual is entitled to seek visitation,
and it would still be up to the court to determine
whether such visitation was in the best interest
of the child.
Jones is represented in this case by the National Center for Lesbian Rights, with its executive director Kate Kendell as lead counsel, and
Salt Lake City attorney Lauren R. Barros. Barlow is represented by Midvale, Utah, attorney
Frank D. Mylar. A.S.L.
LESBIAN/GAY LEGAL NEWS
11th Circuit Rejects Constitutional Challenge to
Alabama Sex Toys Law — Again
Adding a sixth chapter to the apparently endless saga of the ACLU’s battle to invalidate an
Alabama statute that makes commercial distribution or sale of “sex toys” a crime, a threejudge panel of the U.S. Court of Appeals for the
11th Circuit ruled on February 14 in Williams v.
Morgan, 2007 WL 465567, that legislative
moral disapproval of sex toys provided the necessary rational basis to sustain the statute.
The statute, Alabama Code sec.
13A–12–200.2(a)(1), makes it a crime to distribute devices “primarily for the stimulation of
human genital organs” for compensation. It
provides an exception for sales “for a bona fide
medical, scientific, educational, legislative, judicial, or law enforcement purpose,” and does
not prohibit use, possession, or gratuitous distribution, according to the opinion for the panel
by Circuit Judge Charles R. Wilson. We have
pondered many hours, trying without success to
think of a “legislative purpose” for buying a sex
toy....
The ACLU filed suit on behalf of individuals
who wished to sell or buy such devices in Alabama back in the 1990s. In the first opinion in
the case, the district court rejected the argument that the statute burdened a fundamental
right, but found there was no rational basis for
the statute and enjoined its enforcement as facially unconstitutional. 41 F. Supp. 2d 1257
(N.D. Alabama 1999). The court of appeals
agreed as to the fundamental rights ruling, but
disagreed as to facial unconstitutionality, finding rational the state’s argument that the statute
advanced public morality. However, it remanded for further consideration of the ACLU’s
“as applied” challenge, which the district court
had not yet addressed. 240 F.3d 944 (2001). On
remand, the district court changed its view of
the fundamental rights argument, finding that
the statute “as applied” to private adult consensual sexual activity burdened a fundamental right of privacy, applied strict scrutiny and
struck down the statute. 220 F.Supp.2d 1257
(2002).
The state appealed yet again, but before the
court of appeals took up the case, the U.S. Supreme Court decided Lawrence v. Texas, 539
U.S. 558 (2003), arming the ACLU with a new
argument, since the prior 11th Circuit decision
had been premised on the now-overruled decision in Bowers v. Hardwick, 478 U.S. 186
(1986). This cut no ice with the 11th Circuit,
however, as it concluded that Lawrence had not
identified a fundamental right of sexual privacy, but rather had concluded that the Texas
Homosexual Conduct Law flunked rationality
review. Thus, the 11th Circuit reversed again
and remanded to the district court to consider
whether the state’s rationale for the law was invalidated by Lawrence. 378 F.3d 1232 (2004).
On remand, the district court, finally getting the
message that there was no way the 11th Circuit
was going to strike down the Alabama sex toys
law short of a direct command to do so by the
Supreme Court, ruled that the state’s public
morality concerns provided a rational basis for
the statute, despite the Supreme Court’s holding that legislative morality judgments could
not sustain the Texas sodomy law, and Justice
Scalia’s suggestion, in dissent, that the Court’s
reasoning had doomed all morals legislation.
420 F.Supp.2d 1224 (2006).
In this decision, the 11th Circuit panel emphatically held that the district judge had finally gotten the court’s message. Judge Wilson
reported that “we find that the State’s interest
in preserving and promoting public morality
provides a rational basis for the challenged
statute.” After noting the highly deferential
standard of review traditionally accorded statutes that do not burden fundamental rights, the
court cited a litany of pre-Lawrence Supreme
Court opinions for the point that “the crafting
and safeguarding of public morality has long
been an established part of the States’ plenary
police power to legislate and indisputably is a
Lesbian/Gay Law Notes
legitimate government interest under rational
basis scrutiny.”
Rejecting the ACLU’s argument that the Supreme Court’s rejection of public morality as a
rational basis for upholding the Texas sodomy
law should control the outcome in this case,
Judge Wilson explained, “However, while the
statute at issue in Lawrence criminalized private sexual conduct, the statute at issue in this
case forbids public, commercial activity. To the
extent Lawrence rejects public morality as a legitimate government interest, it invalidates
only those laws that target conduct that is both
private and non-commercial.” Wilson then
quoted the penultimate paragraph in the Lawrence majority opinion, in which Justice Kennedy indicated that the case before the court
did not present issues of public conduct or
prostitution.
“This statute targets commerce in sexual devices, an inherently public activity, whether it
occurs on a street corne, in a shopping mall, or
in a living room, and, quoting the court’s prior
opinion in the case, “There is nothing ‘private’
or ‘consensual’ about the advertising and sale
of a dildo.” Wilson noted that the statute does
not target private conduct, including the use of
such items, and asserted, “States have traditionally hade the authority to regulate commercial activity they deem harmful to the public.”
In this connection, Wilson rejected the argument that the Lawrence court’s reliance on Justice Stevens’s Hardwick dissent, which criticized the use of legislative moral judgments to
sustain criminal statutes, thus “rendered public morality altogether illegitimate as a rational
basis,” asserting that Justice White’s comment
in Hardwick that “the law is constantly based
on notions of morality” was not first announced
in that case and “remains in force today,” this
last assertion conspicuously citing no
post-Lawrence authority other than the 11th
Circuit’s own decision in Lofton v. Secretary of
the Department of Children and Family Services, 358 F.2d 804 (2004).
Presumably the ACLU plans to take this case
as far as it can to overturn the notion that legislative majorities can essentially make it commercially impossible for somebody to run a retail business in Alabama that subsists on the
sale of sex toys. Next stop: petition for en banc
review (unlikely to succeed, inasmuch as the
circuit refused to grant en banc review in Lofton), and then a petition to the Supreme Court.
Although more states had such laws in the past,
today the list is down to Alabama, Georgia, Mississippi, and Texas, creating a dildo-free zone
through the heart of the old Confederacy. Of
course, we imagine that ordering them on-line
is no problem, as long as they are shipped in an
unmarked package. (Interesting puzzler —
would Alabama collect sales tax on the purchase?) A.S.L.
March 2007
New Jersey Supreme Court Upholds Private
Right of Action for Peer Harassment in Schools
The New Jersey Supreme Court unanimously
ruled on February 21 that public school students suffering from harassment by their peers
based on actual or perceived sexual orientation
have a right of action under the state’s Law
Against Discrimination, which bans sexual orientation discrimination in places of public accommodation. L.W. v. Toms River Regional
Schools Board of Education, 2007 WL 517093.
According to the opinion for the court by Chief
Justice James R. Zazzali, the same standards
that apply to workplace harassment under the
state’s civil rights law should be used to evaluate whether unlawful harassment has taken
place in the educational environment, because
students and employees are equally protected
against discrimination.
The ruling affirmed a decision of the Appellate Division, which had upheld a determination by the Division of Civil Rights. However,
because the court’s opinion spelled out for the
first time the standards for evaluating whether
the school district’s response to the harassment
was sufficient to meet its statutory obligations,
the court remanded the matter back to the Division of Civil Rights to reopen the hearing record
so that each side could present evidence, the
relevant standard being what would be a reasonable response by the school district at the
time the incidents that gave rise to this case occurred.
The complainant, L.W., whose sexual orientation is deemed irrelevant by the court and not
specified in the opinion, began to experience
homophobic harassment by fellow students as
early as the fourth grade, and the harassment
continued regularly into his middle school experience, then abated somewhat, then escalated at the beginning of high school, resulting
in his withdrawal from the district’s high school
and enrolling in high schools in a neighboring
district at the expense of the Toms River
schools. Most of the harassment took the form of
name-calling, but on occasion this escalated to
shoving, punching and slapping and threats of
serious assault.
The school district’s response, as described
in Justice Zazzali’s opinion, consisted largely of
admonishing students to desist from harassing
L.W. There was one incident where a guidance
counselor told L.W. to toughen up and turn the
other cheek. In response to some more serious
incidents, the school gave detention or suspensions to various students. There was evidence
that the school had adopted a “zero tolerance”
policy concerning harassment, but the printed
version of the policy announced to students did
not expressly reference “sexual orientation,”
and there was testimony that sexual orientation
issues were not mentioned when school officials discussed the policy with students, al-
43
though it was mentioned in a version of the
printed policy made available only to school
staff members.
A hearing officer for the division had concluded that individual students could not sue a
school under the LAD for harassment by fellow
students, but this determination was reversed
by the Director of the Division, who awarded
compensatory damages of $50,000 to L.W.,
$10,000 to L.W.’s mother, and a penalty of
$10,000 on the school district, as well as ordering the district to take remedial measures to
deal with the issue of sexual orientation harassment. The Appellate Division agreed with the
Director that a private action could be brought
by a student under the LAD, but found that
awarding damages to L.W.’s mother was inappropriate, and that the record did not support
imposing a remedial order on the district. A dissenter disagreed with the majority’s finding
that the School District failed to take effective
remedial measures, in the absence of record
evidence about how school districts generally
handle harassment issues.
The Supreme Court rejected the School District’s argument that the standard to be applied
to judging its actions should be the “deliberate
indifference” standard adopted by the federal
courts in construing Title IX, the statute imposing an obligation of non-discrimination on the
basis of sex on educational institutions that receive federal funding. The court pointed out
that the N.J. LAD is more akin to Title VII, the
federal workplace discrimination statute, than
to Title IX, whose basis of application is a contractual relationship between the government
and the school district. The LAD, by contrast, is
focused on extending and protecting the constitutional rights of individuals by applying the
anti-discrimination principle to the private and
public sectors generally, not limited by any
funding nexus. And, the court asserted, public
school students are as entitled to be compensated for being subjected to a hostile environment at school as employees are for being subjected to a hostile environment at work.
The court noted that all the harassment directed at L.W. was homophobic in nature, thus
his actual sexual orientation was irrelevant to
his standing to bring this suit, as the statute itself defines sexual orientation to include perceived orientation.
Having rejected the Title IX standard for
evaluating the school district’s response to the
problem, the court adopted the Title VII approach, requiring the fact-finder to evaluate
whether the school district responded reasonably in a way calculated to put an end to the harassment. Justice Zazzali explained that factfinders “must determine the reasonableness of
a school district’s response to peer harassment
in light of the totality of the circumstances, that
is, the ‘constellation of surrounding circumstances, expectations, and relationships which
44
are not fully captured by a single recitation of
the words used or the physical acts performed,’” quoting from the U.S. Supreme
Court’s opinion on same-sex workplace harassment, Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75 (1998).
Zazzali pointed out that in response to this
litigation, the state’s Department of Education
had established a model policy for school districts, which requires them to maintain “policies prohibiting harassment, intimidation, and
bullying in the educational arena.” And, the
legislature had passed a law making certain
kinds of bullying at school a criminal offense,
but the court noted that the anti-bullying statute was not directly relevant to this case, a civil
action instigated by the victim seeking relief
against the district, not seeking criminal prosecution of the perpetrators. Because the model
policy was not promulgated until after the
events in this case, it would not be binding in
determining what a reasonable response would
have been, but Zazzali said that it should be
considered as an example of a reasonable response.
Obviously, in light of the court’s opinion, the
hearing record needs to be reopened so that
both parties can present whatever evidence
they might have relevant to the factual inquiring specified by the Supreme Court. The ACLU
of New Jersey, representing a variety of interest
groups including the Gay Lesbian & Straight
Education Network of Northern New Jersey,
filed an amicus brief in the case. A.S.L.
New Jersey Attorney General Opines on Marriage
Recognition Under Civil Union Act
The New Jersey Civil Union Act went into effect
at midnight February 19. Just days earlier, the
state’s Attorney General, Stuart Rabner, issued
his Formal Opinion No. 3–2007 on February
16, dealing with recognition in New Jersey of
same-sex couples who have legally recognized
relationships from other jurisdictions. Taking a
functional approach, Rabner opined that
same-sex marriages formed in Massachusetts
would be recognized within New Jersey as civil
unions, carrying all the rights and benefits
available to married couples under New Jersey
law.
The Civil Union Act specifically provides
that a “civil relationship entered into outside
this State, which is valid under the laws of the
jurisdiction under which the civil relationship
was created, shall be valid in this state.” This
wording leaves some ambiguities for interpretation. It could be literally read to provide that a
same-sex marriage validly contracted in Massachusetts or one of the five countries that
authorized same-sex marriages — Canada,
The Netherlands, Belgium, Spain, and South
Africa — would be recognized as a marriage in
New Jersey. But, in a linguistic interpretive
March 2007
sleight of hand, Rabner takes the position that
those marriages will be recognized as “valid”
in New Jersey, but in the form provided by New
Jersey law for same-sex couples, as civil unions.
As a practical matter, there is no difference in
terms of the state law rights, privileges and
benefits involved, since the Civil Union Act is
intended to provide those same-sex couples
who become civil union partners with all the
same state law rights that married couples enjoy. But Rabner’s interpretation tracks the
Lewis v. Harris, 188 N.J. 415 (2006), majority
opinion in effectively treating the difference in
nomenclature as not having constitutional significance, a point that can and has been contested by the Supreme Court dissenters, the
plaintiffs in Lewis v. Harris, and leading advocates in the movement for equal marriage
rights. Some of those advocates were immediately critical of this aspect of the opinion letter,
although there was unanimity among the
same-sex marriage advocates in celebrating the
Civil Union Act going into effect.
As Rabner makes clear, the New Jersey legislature evidently intended to withhold the name
of marriage from the legal relationship it is providing for same-sex couples in response to the
court opinion, so Rabner believes the same
should be done for same-sex couples who come
to New Jersey from out of state having formed
legal relationships elsewhere.
Rabner takes the position that all same-sex
legal relationships that approximate to the
scope of a New Jersey civil union should be recognized as such in New Jersey. That would include civil unions from Vermont and Connecticut, and domestic partnerships from California,
where the legislature had through a series of
amendments extended almost every state marital right to registered domestic partners. It
would also include same-sex marriages contracted in the five countries that authorize such
marriages, as well as legally-recognized relationships from other countries that afford substantially all of the rights of marriage, such as
civil partnerships from the United Kingdom,
New Zealand, Sweden and Iceland.
The N.J. Domestic Partnership law, which
went into effect in 2004 and was not repealed
by the legislature when it passed the Civil Union Act, will continue to be in effect. This law
provides a limited list of rights to registered
partners, and is open to same-sex partners as
well as opposite-sex partners of whom at least
one is 62 years of age or older. Rabner indicated
that all registered same-sex domestic partners
in the state will be advised that they may form
civil unions if they desire, and those who don’t
wish to take that step can continue to be domestic partners. However, he is instructing the
State Registrar of Vital Statistics that effective
February 19 no more same-sex couples will be
allowed to form domestic partnerships — it’s
Lesbian/Gay Law Notes
civil unions or nothing for them — unless at
least one member of the couple is 62 or older, in
which case they can continue to form domestic
partnerships, as may opposite-sex couples with
at least one member age 62 or older.
However, the Domestic Partnership law will
continue to play an important role, because it
will set the basis for legal rights of out of state
couples coming to New Jersey who have legally
recognized relationships carrying substantially
fewer rights than marriage. For example, a couple who are District of Columbia domestic partners would be treated as domestic partners in
New Jersey, as would be French same-sex partners who have a civil solidarity pact, or registered partners from other European countries
whose status falls short of the full panoply of
marriage rights.
There are some interpretive kinks to be
worked out, however, and case by cases determinations to be made. Surprisingly, considering proximity and the number of couples who
might be affected, Rabner’s letter does not specifically state how New York City domestic
partners may be treated in New Jersey. NYC
partners have all the rights under city law of
marital spouses, but have no particular state
law rights unless they are receiving domestic
partnership benefits as state employees.
Clearly, they would not be entitled to be considered civil union partners in New Jersey unless
they formally apply for a license and solemnize
the relationship there, but would they automatically be treated as domestic partners? The
opinion letter leaves this up in the air by not
mentioning it.
Of course, a same-sex couple could come to
New Jersey and conclude a civil partnership,
thus ending all suspense about what their rights
would be, but the issue of recognition is important for those who are just traveling in the state
or who move there without taking any steps to
alter their status. Rabner opines that somebody
who would qualify for recognition in New Jersey
as a civil union partner or domestic partner
need not take any formal steps to certify or register that relationship, but they can do so if they
like and get formal certification in New Jersey.
Either way, the appropriate partnership status
should be recognized by state agencies.
Recognition of relationships by private businesses and individuals are to some extent a
matter of custom, but New Jersey law also prohibits discrimination against domestic partnerships or civil unions in employment, housing
and public accommodations, so to that extent
private entities will have to adjust to the new legal regime. However, due to preemption by federal law, civil union partners and domestic
partners have no legal basis to claim spousal
benefits from non-governmental employers,
but such employers can extend benefits voluntarily, subject to the adverse tax consequences
imposed by federal law.
Lesbian/Gay Law Notes
Rabner’s letter is the formal opinion of his office, but it is not necessarily binding on the New
Jersey courts, which would weigh in if a particular determination is contested and might
even be persuaded to take the more expansive
interpretation of the recognition provision in
the Civil Union Act than the one Rabner has
embraced. On the other hand, in light of the
limited remedy provided by the majority opinion in Lewis v. Harris, the odds that a New Jersey court would go further than the Attorney
General in recognizing same-sex couples from
out of state as actually married seems unlikely.
A.S.L.
Rhode Island Attorney General Supports Marriage
Recognition
Rhode Island’s Attorney General, Patrick C.
Lynch, has advised the state’s Board of Governors for Higher Education that they should treat
as married those of their employees who go with
their same-sex partners to Massachusetts to
marry and then come back to their jobs at the
state’s public colleges and universities.
Lynch’s advice, contained in a letter dated
February 20 and released to the public on February 21, responded to a request for legal advice from Jack R. Warner, a commissioner on
the Board of Governors, who related in his February 1 request to Lynch that a faculty member
at Rhode Island College who had married her
partner in Massachusetts was asking to have
the marital status designation changed in her
personnel file. Warner noted that an attorney
from Gay & Lesbian Advocates & Defenders in
Boston, Karen Loewy, had made a similar request to the Board’s General Counsel, claiming
to represent the faculty member in question.
Several years ago Rhode Island passed a law
authorizing spousal benefits for same-sex partners of state employees, which the Attorney
General had interpreted in 2004 as applying to
same-sex marital partners from Massachusetts,
so this request was not primarily about benefits
eligibility.
A press release posted to the Attorney General’s website on February 21 explained that his
office routinely provides legal advice to state
agencies. They are free to accept or reject the
advice, and the Attorney General’s opinion is
not binding on anybody.
According to Lynch’s letter, the question
whether Rhode Island would recognize a
same-sex marriage performed in Massachusetts turned entirely on Rhode Island law.
“Federal DOMA does not affect our analysis,”
he wrote, “both because it cannot be an expression of Rhode Island law and because it merely
allows a State to accept or reject a same sex
marriage performed in another jurisdiction.”
Lynch pointed out that in past marriage recognition cases, the state’s courts had established the general principle that “Rhode Island
March 2007
will recognize any marriage validly performed
in another state unless it would be against the
strong public policy of this state to do so,” and
so the main issue was whether Rhode Island
has a public policy that would prevent recognizing the Massachusetts marriages.
Lynch also pointed out, before turning to that
question, that the outcome would be the same
whether he was conducting his analysis under
the federal constitutional Full Faith and Credit
Clause or applying the common law concept of
comity. There is some dispute among legal
scholars about whether the Full Faith and
Credit Clause is relevant to marriage recognition issues. To Lynch, this made no difference
because the ultimate question — whether
Rhode Island’s public policy requires the state
to refuse recognition to such marriages —
would be the same.
Reaching back into Rhode Island history,
Lynch explained that the state’s courts had consistently recognized marriages that were lawfully performed in other states even though they
could not have been performed in Rhode Island. For example, in 1904, Rhode Island law
prohibited a person who was under a legal
guardianship from marrying without the permission of their guardian. Such a person and
his fiancé went to Massachusetts to marry and
then came back to Rhode Island, where the
guardian tried to keep them apart and the wife
sued for access to her husband. The court said
that Rhode Island would recognize the marriage and enforce the wife’s right to be with her
husband.
In that case, Ex Parte Chace, 58 A. 978, the
Rhode Island Supreme Court took the position
that the law of the place where the marriage
took place was the relevant law for determining
whether the marriage was valid, rather than the
law of the place where the couple was domiciled (had their legal residence). The only exception to this, according to the old opinion, is
when an out-of-state marriage is “odious by the
common consent of nations, or if its influence is
thought dangerous to the fabric of society, so
that it is strongly against the public policy of the
jurisdiction.” Lynch characterized this exception to the general policy of recognition as
“fairly narrow,” and noted that the old cases
limited it to polygamous marriages, incestuous
marriages, and inter-racial marriages. Of
course, in 1967, the Supreme Court of the
United States invalidated all state laws against
interracial marriages in Loving v. Virginia, so
now they would be routinely recognized.
Apart from these general principles, a state
could deny recognition based on a specific provision of state law, such as a so-called Defense
of Marriage Act or a state constitutional amendment. Although forty-five other states have enacted such measures over the past fifteen years,
Rhode Island is one of a handful of states that
have not done so. Although legislative propos-
45
als to open up marriage to same-sex couples
have not advanced in the Rhode Island legislature, that body has also refused to enact a statutory ban on recognizing same-sex marriages. In
fact, Lynch noted, in 2004 his office had advised the state’s treasurer that same-sex couples who were married in Massachusetts were
entitled to receive spousal benefits available
under Rhode Island law for state employees,
and “to date, neither our legislature, nor our
Supreme Court has expressed disagreement
with that opinion.”
More importantly, perhaps, Lynch noted that
the general approach of Rhode Island law in recent years has been to support gay rights
through the addition of sexual orientation to the
state’s civil rights law, the extension of domestic partnership benefits to same-sex partners of
state employees, and the judicial recognition of
same-sex co-parents as “de facto parents” for
purposes of child custody and visitation rulings. See Rubano v. DiCenzo, 759 A.2d 959
(R.I. 2000). The court system recently revised
its bereavement leave policy to add domestic
partners to their definition of “immediate family.” “The foregoing all supports a conclusion
that same-sex marriages are not contrary to
Rhode Island public policy,” wrote Lynch.
“Rather, the only marriages declared contrary
to public policy (and void) in Rhode Island are
bigamous marriages, incestuous marriages,
and marriages between two mentally incompetent persons,” he declared, pointing to specific
state statutes.
Lynch concluded that “whether based on
Full Faith and Credit or on principles of Comity,
Rhode Island will recognize same sex marriages lawfully performed in Massachusetts as
marriages in Rhode Island. Therefore, we advise the Board of Governors that it should accord marital status to its employees who were
lawfully married in Massachusetts under the
ruling of that state’s highest court in Goodridge
v. Department of Health, 798 A.2d 941
(Mass.2003).”
In a footnote, Lynch observed that thenAttorney General Eliot Spitzer of New York had
issued a similar opinion in 2004, in response to
requests for advice from some town clerks in
upstate New York. Lynch did not mention the
recent formal opinion by New Jersey Attorney
General Stuart Rabner, who indicated that Massachusetts same-sex marriages would be recognized in New Jersey, but would be treated as
civil unions under the newly-enacted Civil Union Law. There is some irony in this, since New
Jersey has gone farther legislatively in recognizing same-sex couples than Rhode Island,
and yet it is Rhode Island, according to its attorney general, that will recognize Massachusetts
same-sex marriages as marriages without
qualification.
The Higher Education Board announced
that it would follow Lynch’s advice. Rhode Is-
46
land media reported that the state’s Republican
governor, Donald Carcieri, who is opposed to
same-sex marriage, was studying Lynch’s letter
before announcing his position on the issue.
Recently, the state’s Supreme Court refused
to address this question in the context of a petition for divorce filed by a Rhode Island couple
who had married in Massachusetts in May
2004 during the brief period when some town
clerks were issuing licenses to out-of-state couples until forced to desist by litigation threats
from that state’s attorney general. In subsequent litigation, the Massachusetts Supreme
Judicial Court upheld the constitutionality of
the provision on which the attorney general was
relying, but indicated that it would not preclude
licensing same-sex marriages from couples
domiciled in states that would recognize them.
Last fall, a Massachusetts superior court judge
ruled that on this reasoning same-sex couples
domiciled in Rhode Island should be able to
marry in Massachusetts. Lynch’s analysis echoes that of the Massachusetts superior court.
The trial judge in the divorce case asked the
Supreme Court to rule on whether he had jurisdiction to decide the divorce action. Saying that
the question had been presented to it prematurely, the state’s high court sent the matter
back to the trial court for more fact-finding,
with instructions to the trial judge to make an
initial determination about whether Rhode Island would recognize the marriage. Now the
trial judge has advice from the Attorney General to factor into his analysis. (In an interesting
side note, we saw a local media report that the
week prior to issuing this ruling, A.G. Lynch attended a same-sex marriage ceremony in Massachusetts at which his sister was one of the
brides.) A.S.L.
California Court of Appeal Reinstates $1.5 million
Award to Gay Employee
The California Court of Appeals reinstated a
jury trial award of over $1.5 million to Scott
Jones, a gay former employee of The Lodge at
Torrey Pines, reversing the trial judge’s grant of
judgment notwithstanding the verdict.. Jones v.
The Lodge at Torrey Pines Partnership, 2007
WL 314804 (Cal.App. 4 Dist., February 5,
2007). The jury had ruled in favor of Jones on
his charges of sexual orientation discrimination
in violation of state law.
Jones started as a cashier/host at the restaurant in the Catamaran Hotel in 1994, and was
promoted through the company, until he became manager of The Grill at the hotel. Jones
complained that he was subjected to unlawful
harassment and a hostile work environment
and eventually discharged in response to his
complaints of mistreatment. Jones claimed that
supervisors were telling him that he complained too much. In return he says, he was harassed and criticized for all of his actions and
March 2007
was even given warning notices for failing to
follow hotel policies.
Jones sued the restaurant for discrimination,
and sued Jean Weiss, a hotel supervisor, for retaliation. He claimed a violation of the California Fair Employment and Housing Act (FEHA)
for sexual orientation discrimination. Jones testified that Weiss, and kitchen manager Jerry
Steen, told jokes and made sexual remarks
about female employees and Jones.
Jones was not the only employee complaining about the work environment at the Lodge
restaurants. Several female employees, known
as “cart girls,” complained to Jones that they
felt uncomfortable around Steen and Weiss.
Weiss threatened to fire Jones in May of 2001 if
he continued to “air his dirty laundry.” Weiss
gave Jones a warning letter for absenteeism, issued when Jones returned to work a day after
complaining to management and being told to
go home early. Jones had never received any
type of “warning notice” before. As a result of
the environment’s impact on his mental health,
Jones was put on leave by his doctor. Jones filed
a complaint of discrimination when he could
not tolerate the constant nitpicking by Weiss
any longer.
The jury returned a verdict in favor of Jones
on sexual orientation discrimination against the
Lodge and retaliation against Weiss. Both the
Lodge and Weiss filed separate motions for
JNOV and a new trial. The trial court ordered a
new trial on the grounds of excessive damages
and improper instructions on the definition of
an adverse employment action. Jones filed a
notice of appeal. The California Court of Appeals reversed the order granting the JNOV and
new trial. The original judgment entered in favor of Jones and against the Lodge and Weiss
was reinstated.
The Court’s ruling gives protection to Jones
and a message of intolerance to workplace discrimination. Tara Scavo
Virginia Appeals Court Issues Mixed Ruling on
Gay Dad’s Rights
The Court of Appeals of Virginia’s ruling in
A.O.V. v. J.R.V., 2007 WL 581871 (Feb. 27,
2007) (not reported in S.E.2d) yielded mixed
results for a gay father seeking to retain joint
custody and visitation with his children. The
court’s opinion, written by Judge James W.
Benton, Jr., rejects the mother’s argument that
the father, who has a same-sex partner, should
be denied joint custody or face more severe
limitations on visitation than those already imposed by the trial court, but upholds the requirement that the father’s partner not spend
the night when the children are there for visitation.
The parties married in 1987 and had three
children. The father was in the military and
they moved frequently. They were living in Staf-
Lesbian/Gay Law Notes
ford, Virginia, at the time of their separation in
2004, when mother moved with the children to
South Carolina to live with her sister. The father
“came out” and established an “exclusive” relationship with another man, described by the
court as his “paramour,” in May 2004. They
rent a house together, but the partner also owns
a condo. Upon the divorce, the circuit court ordered the father to pay child support, gave primary custody to the mother, and provided for
visitation for the father, with the parties sharing
air travel costs for the children but a cap being
placed on mother’s annual expenditure. The order also prohibited father’s partner from spending the night when the children were visiting,
and prohibited “public displays of affection”
between the partners when the children were
present. He also was prohibited from leaving
the children in his companion’s care or discussing sexuality issues with them. (The children
were born in 1992, 1998, and 1999.)
Because he found that the father was a “fit father” and had a good relationship with the children, the circuit judge awarded joint custody.
On appeal, mother sought sole custody, and
stronger restrictions on the father’s visitation,
arguing that the father’s homosexuality had led
to the divorce, that the parties had communication problems and that father’s homosexuality
would have negative effects on the children.
The court rejected mother’s arguments along
these lines, and particularly rejected her demand that the court order more stringent visitation restrictions, including prohibiting “exposing” the children to his partner or to
homosexuality in any way. The court noted that
the father and his partner had been very discrete, testifying that as far as the children were
concerned they were just close friends and the
partner would go to his condo to sleep when the
children were visiting. This was satisfactory to
the appeals court, which pointed out that Virginia does not have a per se rule considering
gay parents to be unfit or harmful, and that
there was no evidence of harm to the children in
this case.
There was some mention that adverse Virginia precedents on gay parenting pre-date the
U.S. Supreme Court’s opinion in Lawrence v.
Texas declaring a state law against gay sex unconstitutional, and thus those holdings “are
weakened to the extent that they relied on Code
sec. 18.2–361’s criminalization of certain sexual acts,” wrote Judge Benton. But Benton
noted that the “primary concern” of the court is
the best interest of the children, and in this case
that was served by the trial court’s decision.
A.S.L.
Virginia Appeals Court Engages in Opportunistic
Interpretation of Marriage Amendment
Virginia voters amended their state constitution
to provide that same-sex partners are entitled to
Lesbian/Gay Law Notes
absolutely no legal recognition for their relationships under any circumstances under the
laws of the state, and yet the state’s Court of Appeals ruled on February 27 that if an ex-wife is
living together with her same-sex partner, that
will constitute “cohabitation with any person in
a situation analogous to marriage” for purposes
of construing a property settlement agreement
(PSA), thus depriving her of support payments
under the agreement. Stroud v. Stroud, 2007
WL 581833 (Ct.App.Va., Feb. 27, 2007).
Reversing a decision by Fairfax County Circuit Judge M. Langhorne Keith, who had concluded that the state constitution and laws
meant that the court could not recognize as having any legal significance the cohabitation of a
same-sex couple, the appeals court ruled in an
opinion by Judge James W. Haley, Jr., that these
constitutional and statutory restrictions were
not relevant to the interpretation of a contract
between divorcing spouses.
“In this case,” wrote Judge Haley, “a foundational issue was whether the parties intended,
by the use of the word ‘person’ in the context of
the PSA, only individuals of different sexes, or
individual of both sexes. We hold the word ‘person’ can be understood in either way by an objectively reasonable standard and, accordingly,
that word is ambiguous as it is used in the
PSA,” so that parol evidence would be relevant
to its construction. In this case, the parol evidence includes early drafts of the agreement
that specified “cohabitation with a male in a
situation analogous to marriage” as terminating
the wife’s support payments. Mr. Stroud testified that he remembered scratching out ‘male’
and substituting ‘person’ before submitting the
draft back to his attorney, who sent it to Mrs.
Stroud’s attorney. There was also testimony by
Mrs. Stroud admitting that she had kept track of
how many consecutive days she spent with her
girlfriend in order to avoid hitting the 30 consecutive days of cohabitation that would trigger
the PSA provision.
A large part of the opinion was devoted to reviewing the evidence concerning cohabitation,
and concluding that the evidence in the record
required reversing the trial court’s conclusion
that the husband had not proved cohabitation
as a matter of fact.
Trial judge Keith had also asserted that under Virginia law, “people of the same sex cannot
cohabit,” relying on a 1994 Attorney General
opinion construing the state’s domestic violence law so as to avoid extending its protection
to same-sex couples. (This is Virginia, after
all....) And, of course, Virginia law explicitly
forbids attributing any legal status to same-sex
couples. But that did not deter the court of appeals in this case, Judge Haley commenting
that “in this case we are concerned with a contract between a man and a woman, husband and
wife, not a statute defining or to be interpreted
March 2007
as defining ‘cohabitation,’ which is the subject
of the Opinion on which the trial court relied.”
“The language of the PSA also contains the
phrase ‘analogous to marriage,’” wrote Haley.
“A relationship ‘analogous to marriage’ does
not mean a ‘marriage.’ Rather, ‘analogous’ is
defined as ‘similar in some way,’” citing a dictionary. “Our analysis of the phrase ‘analogous
to marriage’ in the PSA is based upon the factual relationship of wife and Robyn, and explicitly does not purport to grant, or comment upon,
any legal status of that relationship. Succinctly
stated, that relationship, as established by the
facts, is similar ‘but not identical in form and
substance’ to a marriage,” so taking note of it
for purposes of construing the PSA did not, in
the court’s view, run afoul of the statutory prohibition. Insisted Haley, “Our holding in this case
explicitly does not grant any legal status to the
relationship between wife and Robyn.”
Thus, concluded the court, the trial court
erred when it concluded that for purposes of
construing the PSA it is impossible for samesex couples to “cohabit” under Virginia law,
and Debra Lyn Stroud is done out of her support
payments, even though with the law otherwise
withholds any legal recognition of her relationship with Robyn. A.S.L.
Texas Appeals Court Rejects Lawrence-Based
Challenge to Obscenity Statute
The Texas Court of Appeals in Fort Worth has
rejected a constitutional challenge to the application of the Texas obscenity statute, Penal
Code sec. 43.23, to the sale of obscene matter to
consenting adults in a retail establishment that
bars entry to minors. Holding that the petitioner
could not rely on Lawrence v. Texas to mount a
challenge to the statute, the court declined a
habeas corpus petition in Ex Parte Valeria Joyce
Dave, 2007 WL 530143 (February 22, 2007).
Valeria Joyce Dave works at Dreamer’s, described in the opinion by Chief Justice John
Cayce as “a sexually-oriented business in Kennedale, Texas.” Dreamer’s does not allow entry
to persons under age eighteen, and offers no
live entertainment, restricting itself to the sale
of goods for use off the premises, including
sexually-oriented tapes and DVDs. In a criminal complaint against Dave, the state alleges
that she sold two obscene videotapes to undercover police officers, violating the state statute
against “promoting obscenity” through its
commercial distribution.
Dave filed a habeas petition, challenging the
constitutionality of the statute, arguing that the
First Amendment protects an individual’s right
to possess and view obscene matter at home,
and that the Fourteenth Amendment Due Process clause would logically protect the right of a
merchant to sell such material to a consenting
adult for home use. Justice Cayce explained
that in order to mount a facial challenge to the
47
statute, Dave would first have to show that it is
unconstitutional in its application to her own
conduct. While conceding that obscenity statutes must be narrowly drawn to avoid penalizing constitutionally protected conduct, Cayce
pointed out that the Supreme Court has repeatedly upheld the constitutionality of laws against
commercial distribution of obscene matter.
Dave argued that there is a new factor in the
equation, the 2003 decision in Lawrence v.
Texas, 539 U.S. 558, which struck down the
Texas Homosexual Conduct Law as a violation
of the Due Process liberty rights of adult samesex couples. Dave contended that Lawrence
had expanded the constitutional right of privacy “into the public sphere of commercial
transactions between consenting adults.” Justice Cayce expressed doubt that Lawrence had
gone that far, insisting, somewhat inaccurately,
that Lawrence “expressly states that this right
‘does not involve public conduct.’” Actually,
what the Court said in Lawrence was that the
facts before it did not involve public conduct,
indicating by clear implication that its holding
in the case concerned the application of the
challenged statute to private conduct.
But, of course, the Texas court’s reading of
Lawrence is consistent with the approach of
other courts, which have almost always given it
a narrow reading and refused to use its logic to
adopt a broader view of Due Process liberty.
Cayce also noted that the Supreme Court has
itself cautioned lower courts against concluding that prior Supreme Court precedents have
been overruled by implication because of the
reasoning of later cases. In Rodriguez de Quijas
v. Shearson/American Express, 490 U.S. 477
(1989) and Agostini v. Felton, 521 U.S. 203
(1997), the Court made clear that it reserves to
itself the decision whether earlier precedents
should be overruled. Thus, because obscenity
laws like that of Texas have been frequently upheld, lower courts are not free to strike them
down as being inconsistent with the reasoning
of Lawrence, which did not involve an obscenity
law.
Of course, one must raise the argument to
preserve it for appeal, and having raised it,
Dave could seek further review from the Texas
courts and, ultimately, could try to bring this issue to the Supreme Court through a petition for
certiorari. However, if the Court’s certiorari denial last year in U.S. v. Extreme Associates, Inc.,
431 F.3d 150 (3rd Cir. 2005), certiorari denied,
126 S.Ct. 2048 (2006), is any indication, the
Court is not particularly interested in taking on
this issue. And one might speculate that the
current Court, at least one vote less moderate
than the Court that decided Lawrence, might
not be the most favorable forum for tackling this
issue. A.S.L.
48
N.Y. Family Court Says City Must Pay For Foster
Child’s Sex-Change Operation
New York City Housing Court Judge Sheldon
Rand ruled on February 21 in Matter of B.L.,
No. K–1154/96 (N.Y. County), that the city’s
Administration for Children’s Services (ACS)
made “misdirected and unsubstantiated
claims” that gender-reassignment surgery “is
controversial, risky and experimental” when it
refused to provide such procedures for a maleto-female transsexual in its custody. Finding
that the procedure is “medically necessary” for
the youth, Rand granted an application by the
Law Guardian appointed to represent the interest of the minor to direct ACS to arrange for the
surgery.
What is astonishing about this case is that
ACS would be taking a position that the judge
characterized as reflecting “inadequate solicitude for this young woman’s diagnosed condition, the treatment prescribed by her physicians and the accumulated knowledge of the
medical community,” which led Judge Rand to
characterize the agency’s position as “irrational and unreasonable.”
Rand noted that it was uncontested that M.L.
had self-identified as a heterosexual female
from a young age. “She reports a lifelong
cross-gender identification which is intense,
stable and enduing,” he wrote. “She is a transsexual child growing into a transsexual adult
whose ability to fully interact in the world is impaired because she is biologically male. She is
not capable of changing or controlling her feminine qualities. Her gender expression makes
her vulnerable to prejudice and to violence.
Like many transgendered adolescents, M.L.
has postponed fundamental life activities that
include working and pursuing a career until
she can engage in them in her preferred gender.
Sexual reassignment surgery would reduce the
risks she currently faces in a society that genders bathrooms, locker rooms, dormitories, fitting rooms and public benefit programs an
dservices.”
“If M.L. undergoes surgery,” continued
Rand, “she can expect reduced anxiety and defensiveness at the fear of being ‘found out,’ increased comfort in social and sexual situations,
increased acceptance by friends, employers
and sexual partners, increased personal comfort with her own body and the right to change
her name and gender on official documents to
the extent allowed by law. We must also take
into consideration that this surgery [sexreassignment surgery, abbreviated as‘SRS’] is a
monumental decision made by the child; M.L.
is ready both mentally and physically for this
procedure which will required that she be
monitored for the rest of her life.”
Judge Rand had first ordered ACS to provide
the procedure a year ago, when M.L. was twenty
years old. ACS appealed that ruling to the Ap-
March 2007
pellate Division, claiming that Judge Rand had
not given it adequate opportunity to present its
reasons for opposing the procedure, and the
Appellate Division returned the case to Judge
Rand on August 24, 2006. Renewing the motion on behalf of M.L., the Law Guardian
claimed that ACS had failed to supplement the
record with “a factual basis for its position,”
merely continuing to claim that in its opinion
the procedure was not medically necessary.
Rand found that this continued insistence, in
the face of substantial expert medical testimony
provided by the Law Guardian, coming from
several doctors with relevant expertise, was totally inadequate to counter M.L.’s case. After
recounting in summary the evidence offered by
a series of medical experts, Rand wrote, “The
Commissioner, who arranged to have M.L.
evaluated by all of the above practitioners, has
not presented any medical or psychological expert to dispute these determinations that SRS is
medically necessary for M.L. In the face of the
unanimous opinion of the experts who have
personally evaluated M.L., the Commissioner
has instead rendered an independent determination that SRS is not medically necessary because M.L. ‘sounds far from ready for such
life-altering surgery.’ Far from supplementing a
position described by the Appellate Division as
‘speculative at best,’ the Commissioner has
substituted his own forecast that after surgery
M.L. will continue to behave ‘in an indecisive,
unstable and self-defeating manner’ for the
medical opinions of experts in the complex
field of GID [gender identity disorder] that she
is fully prepared to undergo surgery.”
Rand indicated that he has read “much of the
current literature on SFS, male to female and
female to male,” bringing him “to conclude that
the surgery is irreversible and that the preoperative and post-operative procedure is a
major, life-altering decision and that one’s determined goal and desire should be respected.
M.L. should be treated in order that she may go
on with her life and be in a body which blends
with the gender with which she identifies.”
“This error of nature need not go uncorrected
in the 21st century when medical technology
has taken giant steps from the previous, outdated opinions of GID and SFS,” Rand insisted. He found that recent federal cases have
established GID as a serious medical condition, for which anybody in the custody of the
state is entitled to appropriate treatment, and
characterized as without merit ACS’s argument
that a further delay would not be injurious to
M.L.
“In this case, the relevant statutes require
that the Commissioner provide necessary
medical and surgical care for a child placed in
foster care, that the Commissioner pay for the
same from public funds if necessary, and that
the Court may compel the Commissioner to provide such medical care.” ACS had argued that
Lesbian/Gay Law Notes
it should not be required to cover the procedure
because of doubts that it would be reimbursed
under Medicaid, but Rand rejected this argument, noting that “M.L.’s health coverage as a
foster child is not limited to Medicaid.”
Given the expenses involved in sexreassignment surgery, it would not be surprising if ACS again tries to appeal this ruling, but
the court’s opinion makes clear that they should
be ashamed to prolong this case any further,
and probably should undertake an internal
education program to ensure that agency officials, from the Commissioner on down, are
properly informed about the current scientific
information necessary for them to fulfill their
duties to transsexual children confided to their
care. A.S.L.
Federal Civil Litigation Notes
Supreme Court — The Supreme Court announced on Feb. 20 that it had denied a petition
for certiorari seeking review of the 7th Circuit’s
decision in Protect Marriage Illinois v. Orr, 463
F.3d 604 (2006), cert. denied, 2007 WL
506085. The petitioner sought to place a measure on the state ballot to allow voters to express
their opposition to same-sex marriage, but the
state Board of Elections, following its normally
sampling procedure, determined that there
were insufficient signatures. PMI challenged
this conclusion in the federal courts, seeking an
order to place the measure on the ballot. The
Supreme Court’s denial of certiorari leaves in
place the 7th Circuit’s ruling rejecting their
lawsuit. Lambda Legal staff and cooperating attorneys represented Fair Illinois, an organization opposed to the proposed referendum, in
persuading the Supreme Court to deny review
in the case.
Supreme Court — The Supreme Court also
announced on Feb. 20 that it had denied a petition for certiorari in Okwedy v. Molinari, 195
Fed. Appx. 7 (2nd Cir. 2006), cert. denied,
2007 WL 506057. Plaintiff, Reverend Kristopher Okwedy, had billboards erected in Staten
Island featuring Biblical verses that are interpreted by some to condemn homosexuality. After gay rights groups complained to the borough
president’s office, a call from that office led the
billboard company to take them down. Okwedy
sued under 42 USC 1983, claiming a violation
of his civil rights of free speech, but struck out
with the lower courts, and evidently the Supreme Court did not feel any need to get involved in this case.
D.C. Circuit — In a per curiam ruling, the
D.C. Circuit found that the district court had
“correctly determined that appellant’s constitutional rights are not violated by the city of San
Francisco in permitting the annual gay, lesbian,
and bisexual parade, and that his constitutional
rights are not violated by the federal government’s decision not to investigate his complaint
Lesbian/Gay Law Notes
about the parade.” McDermott v. Gonzales,
2007 WL 329087 (Jan. 17, 2007). The brief
per curiam opinion does not specify the nature
of McDermott’s complaint, or what his theory
was in challenging the San Francisco parade.
Idaho — In Gee v. Kempthorne, 2007 WL
317051 (D. Idaho, Jan. 30, 2007), Chief U.S.
Magistrate Judge Larry M. Boyle ruled on motions filed by the government in the pending
case by an employee of the Interior Department’s Bureau of Reclamation who use of email
was restricted by the agency after he responded
to an agency-wide email concerning Gay Pride
Month by sending out his own email asserting
that he was “appalled” that government computers were being used for this purpose, and asserting that his own “religious beliefs are that
homosexual activity is filthy perversion.” At the
time, in 2000, agency authorities came down on
Gee, issuing several “counseling” memoranda
and placing restrictions on his email use, leading the lawsuit. The magistrate concluded that
some of the claims were mooted by subsequent
changes in government policy concerning
email use, some should be dismissed due to
sovereign immunity, but concluded that claims
remaining for trial included a Title VII hostile
work environment and religious accommodation claim, and a 5th Amendment equal protection claim. The government’s motion to exclude
certain evidence was denied.
Kentucky — U.S. District Judge Charles R.
Simpson (W.D. Ky.) denied a motion by plaintiffs to file a second amended complaint in Pedreira v. Kentucky Baptist Homes for Children,
Inc., 2007 WL 316992 (Jan. 29, 2007), a case
that has been pending before the court for seven
years. Alice Pedreira was discharged as a Family Specialist by the agency when it discovered
she was a lesbian. She asserted constitutional
discrimination claims, initially conceding that
the defendant was not a state actor but premising her case on the fact that the defendant’s
main source of revenue was government funding for the services it provided to children.
There was much motion practice early in the
case, resulting in a determination that plaintiffs
did have standing to contest the defendants’ receipt of government money on grounds that it is
a religious institution that attempts to inculcate
religious values. Discovery and attempted settlement talks had gotten bogged down. Then
plaintiffs filed their motion to substitute a second amended complaint, adding the new theory
that defendant is in fact a state actor, and, said
Judge Simpson, “they posit a new theory of recovery which would materially change the exposure of KBHC in this action.” The court
found that no explanation had been given as to
why this new theory was not asserted earlier in
the litigation, and concluded: “The prejudice
to the defendants and the imposition upon court
resources further protracting this litigation
militates against our application of Rule 15(a)’s
March 2007
liberal amendment policy in this case. We find
undue delay here, and, significantly, no articulation of any reason for the delay in seeking
these pivotal changes to the claims.” A variety
of public interest groups, including Americans
United for Separation of Church and State and
the ACLU Lesbian/Gay Rights Project, are involved in the case.
Mississippi — A federal jury reportedly
awarded $225,000 to three men who alleged
they were subjected to sexual harassment at the
workplace. EEOC v. Hill Brothers Construction
& Engineering Co., Inc. (February 20, 2007).
The suit brought by EEOC on behalf of the
three complainants alleged that there was a
hostile environment at that work place directed
at men by another man at the company, and the
company failed to address the issue appropriately. The awarded actually consisted of
$75,000 in punitive damages to each of the
three. In a news report on the verdict in
HR.BLR.com, it was reported that EEOC has
counted a rise in the proportion of sexual harassment suits filed by men, to a record high of
15.4 percent of all such cases filed in 2006,
compared to 9.1 percent in 1992.
Pennsylvania — There has been a settlement in the federal discrimination suit that Jennifer Harris, a former Penn State women’s varsity basketball player, brought against the
school and basketball coach Rene Portland.
Harris, who says she is heterosexual, claims to
have been subjected to homophobic harassment and discrimination by Portland, and
brought forth evidence from other players to the
effect that Portland discriminated against students whom she perceived to be lesbians. The
school launched an internal investigation in response to the charges and found that Portland
had violated the university ’s nondiscrimination policy, imposing sanctions and
a $10,000 fine, but not removing the coach
from her position. The terms of the settlement
were not disclosed. The National Center for
Lesbian Rights, which represented Harris, who
transferred to another school where she continues as a varsity basketball player, indicated that
Harris “is very pleased and happy with the settlement.” Centre Daily Times, Feb. 6.
Illinois — It is unusual enough for an individual prisoner civil rights suit to survive motion practice to be worthy of comment here, especially when a gay former inmate is claiming
discrimination. In Joyner v. Snyder, 2007 WL
401269 (C.D. Ill., Feb. 1, 2007), District Judge
Jeanne E. Scott mostly rejected defendants’
motion to dismiss Jerry Joyner’s civil rights
claims. Although Judge Scott found that nasty
anti-gay name-calling, by itself, cannot support
a civil rights claim under existing precedents,
Joyner had alleged more than that, claiming
that he was discriminatorily denied the low sodium diet he required because the named defendant running the food services at the prison
49
was biased, as evidenced by stating “we don’t
feed homosexuals here” when denying Joyner
his special diet tray, as well as calling him “faggot,” “big fat bitch,” “queer ass,” and “black
queer.” (Why are all bigots so original in their
choice of vocabulary?) In addition, Joyner alleged that he was threatened with segregation,
unwanted transfers, and cell “shakedowns” in
retaliation for filing grievances and, after he
filed an earlier version of this lawsuit, while still
a prisoner, received further retaliation. Indeed,
after his release, and his refiling of the suit as a
civilian, he claims to have received “two
threats of bodily harm… through intermediaries who were instructed to convey such threats”
to Joyner. He claimed to have suffered physical
illness due to emotional and mental distress.
Needless to add (but we will), his numerous
grievances within the prison went nowhere.
Judge Scott found that his complaint was sufficient to survive the motion to dismiss regarding
all the defendants, and that they could not
claim qualified immunity for their actions.
Washington — U.S. District Judge Ricardo S.
Martinez granted a petition for habeas corpus to
a gay native of Jamaica in the custody of the
U.S. Immigration and Customs Enforcement
(ICE), who claimed fear of persecution on
grounds of his sexual orientation if he were deported back to Jamaica. Bromfield v. Clark,
2007 WL 527511 (W.D. Wash., Feb. 14, 2007).
Removal proceedings are pending against
Damion Bromfield, who is a Lawful Permanent
Resident, premised on his conviction in state
court of charges involving sex with a minor. He
was not taken into custody immediately upon
his release from the criminal charges. When
the BIA turned down his appeal from an Immigration Judge ruling, he appealed to the 9th
Circuit, which stayed his deportation while it
can study the case, but ICE rounded him up
and put him in detention. In this habeas action,
he challenges the lawfulness of the continued
detention. The government’s position is that
detention is mandatory until the 9th Circuit appeal is decided, even though the circuit ordered
the deportation stayed, while Bromfield successfully contended that he may not be detained until a final order of removal is upheld
by the 9th Circuit. The court decided that under
a reading of the statute the failure of ICE to detain Mr. Bromfield immediately upon his release from state prison meant that he could not
be detained again until the 9th Circuit decides
the appeal. A.S.L.
State Civil Litigation Notes
California — It is reportedly common for teens
in the U.S.A. to use the phrase “That’s so gay”
when they want to ridicule a statement by
somebody else. Does a school have the right to
punish a student for using the phrase, as part of
the school’s mission to provide a safe educa-
50
tional environment for its gay students? The issue is being tested in Santa Rosa, California,
where Rebekah Rice, a Mormon, was being
teased by fellow students about polygamy and
responded with an offhand “That’s so gay.”
Overheard by a teacher, she was sent to the
principal’s office and got a warning and notation in her file. In response, she and her parents
launched a civil suit, pending before Superior
Court Judge Elaine Rushing, whose opinion is
expected sometime after final post-hearing
briefs are submitted. The case received national media attention at the end of February after the hearing was held. Associated Press,
March 1.
Connecticut — A public high school teacher’s criminal conviction for having sex with two
students at the school where he teaches was affirmed by the Connecticut Supreme Court in
State v. McKenzie-Adams, 281 Conn. 486, 2007
WL 519737 (Feb. 27, 2007), although both students were above the age of consent for sex in
Connecticut, which is 16. In a unanimous ruling, the court rejected a constitutional privacy
challenge to Sec. 53A–71(a)(8) of the state’s penal law, which makes it a crime for a school employee to have sex with a student. Van Clifton
McKenzie-Adams premised his defense on Lawrence v. Texas, asserting that the U.S. Supreme
Court had identified a fundamental right of sexual privacy for adults, which was burden by
prosecuting him for his consensual affairs with
adult students. The court said that it was not
clear that Lawrence established a fundamental
right, but that even if it did, the right did not encompass this conduct, noting that in its Lawrence opinion that court indicated it was not addressing a factual situation where consent
could not easily be refused. The court found
that the state’s interest in providing safe
schools for students, and the power dynamics of
a student-teacher relationship, combined to
justify the statutory ban, even when students
were over the age of consent. The court found
that the same analysis would apply under the
state constitution, and also rejected various
procedural and evidentiary objections to the
verdict.
Georgia — The Georgia Supreme Court refused to interject itself into a controversy about
second-parent adoption, by denying a petition
for certiorari in Wheeler v. Wheeler, Case No.
S07C0299, by a vote of 4–3. The majority opinion provides no explanation, but the three dissenters, in an opinion by Justice George H. Carley, strongly argued that the trial court’s initial
approval of the adoption was invalid under
Georgia law. As Carley explained, this was a
case involving a lesbian couple who had a child
through donor insemination, with the co-parent
then getting an adoption, the trial court finding
that it was in the best interest of the child to
have two legal parents, even though the Georgia
adoption law makes no particular provision for
March 2007
such adoptions and states that upon adoption, a
natural parent’s rights are to be terminated. After the couple split up, the birth mother filed a
motion to set aside the adoption decree, which
the trial court denied. She then appealed to the
court of appeals, which at first granted her motion for review and heard oral argument, but
then dismissed the appeal “as having been improvidently granted.” The birth mother then
petitioned the Supreme Court for review. The
dissenters argued that the case presented an
important issue of public policy, noting that
several trial judges around the state had been
granting such adoptions, which appeared to the
dissenters to contravene the adoption statute.
By refusing to take the case, the court majority
effectively ducked the question, leading to a
public sigh of relief from Lambda Legal, according to FoxCarolina.com, which quoted the
organization as stating that taking the case
might have “destroyed parent-child relationships.” Lambda’s southern regional office is located in Atlanta.
New York — Last month we reported on a
lawsuit by Aaron Brett Charney, then a gay
fourth-year associate at Sullivan & Cromwell,
charging his firm with discrimination and retaliation in violation of the New York City Human Rights ordinance prohibition on sexual
orientation discrimination. Charney was initially representing himself in the lawsuit. Since
the suit was filed, Sullivan & Cromwell has first
suspended and then rather quickly discharged
Charney and filed its own lawsuit against him,
also in New York State Supreme Court, alleging
that Charney had improperly revealed privileged and confidential information in his internet postings and complaint and had taken firm
documents that did not belong to him. S&C obtained a restraining order, which effectively
halted Charney’s public comments about his
case. S&C retained Paul, Hastings, Janofsky &
Walker, a firm with a prominent managementside employment law practice, to represent it in
the ongoing legal battle with Charney, and
Charney retained prominent employee-side labor counsel, as well as a criminal defense attorney (in light of S&C’s charge that he had stolen
documents. At a hearing before N.Y. State Justice Bernard Fried on February 8, Charney’s attorney revealed that Charney had destroyed the
hard drive on his computer the previous weekend, thus eliminating documents that S&C
claimed he had stolen. As S&C counsel raised
the issue of spoliation of evidence, Justice Fried
ordered Charney to file an affidavit with the
court concerning the circumstances and
method of his destruction of the hard drive. On
February 13, S&C filed a motion to dismiss
Charney’s case, arguing that N.Y. precedents
support dismissing an employment discrimination case if litigating the charges in the complaint would necessarily require revelation of
confidences or secrets of a client that both par-
Lesbian/Gay Law Notes
ties (Charney and S&C) were bound by lawyer
disciplinary rules not to reveal without client
permission. In the alternative, S&C argued that
Charney be allowed to replead eliminating all
reference to client matter from his complaint, or
that the court strike from the complaint all allegations referring to client information. The case
continued to fascinate law bloggers, who provided daily updates on the case and links to litigation documents. ••• On March 1, attorneys
for Charney filed a motion to dismiss S&C’s
case against Charney, and papers opposing
S&C’s dismissal motion in Charney’s discrimination case. We will discuss these pleadings in
detail next month. A hearing was to be held on
the motions toward the end of March.
New York — Loehmann’s, a discount clothing store in Manhattan on Seventh Avenue at
17th Street, has settled a discrimination complaint brought in the New York City Human
Rights Commission by Jane Garra, who was denied access to the store’s public restrooms and
fitting rooms on two occasions during 2006,
based on her actual or perceived gender. Garra,
a male-to-female transsexual who presents as a
woman, was denied use of facilities normally
made available to women. Her lawyer, Michael
Silverman of the Transgender Legal Defense &
Education Fund, announced settlement of the
case, which will require Loehmann’s to train
their staff to act with sensitivity towards transgender women and men and to provide them
full access to public facilities under the city law
that forbids such discrimination.
Tennessee — In the course of deciding a dispute over visitation between the child’s unmarried biological parents, Swinford v. Humbert,
2007 WL 494997 (Feb. 16, 2007), the Tennessee Court of Appeals noted that the mother’s alleged sexual orientation was basically not relevant to the outcome of the case, since the father,
who raised the issue in an attempt to expand his
visitation time and perhaps obtain a change of
custody, had not shown how this factor had an
impact on the welfare of the child. The mother
maintained that she is not lesbian or bisexual.
Washington — The state’s Human Rights
Commission found that federal ERISA preempts a claim that a private sector employer’s
health benefit plan violates the state’s civil
rights act by extending benefits to same-sex domestic partners but not opposite-sex unmarried
domestic partners. Said Commission Director,
Mark Brenman, “Effectively, because of the
federal law, in this type of case, our hands are
tied.”
Wisconsin — The Labor and Industry Review Commission erred when it excluded most
of the evidence presented by Christopher
Bowen in support of his sexual orientation hostile environment claim, ruled the Wisconsin
Court of Appeals in Bowen v. Labor and Industry Review Commission, 2007 WL 345713
(Feb. 6, 2007). Bowen filed his pro se com-
Lesbian/Gay Law Notes
plaint with the state Equal Rights Division
on April 28, 2003, alleging a hostile environment at work that culminated in his termination, allegedly at the instigation of his harassers, on March 25, 2003. The bulk of his
evidence went to incidents occurring during a
period beginning in February 2002 and extending into June, after which a shift change led to a
period of relative calm at his workplace. Although the Division found probable cause and
scheduled a hearing, the hearing officer counting back the statutory 300 days from the filing
of the complaint held inadmissable all the evidence relating to incidents prior to July 2002,
and then found insufficient evidence to support
the claim. According to the Court of Appeals,
the evidence of earlier incidents should have
been admissible because a hostile environment
claim is cumulative in nature. So long as some
actionable conduct occurred during the limitations period, similar prior conduct would be admissible to help explain its significance. The
case was remanded to the Commission for a
new hearing.
Wisconsin — Madison — Madison’s Labor
Relations Department rejected a grievance
from one of the unions representing city workers on the issue of health insurance coverage for
domestic partners. The union contract specifies
that partners are entitled to spousal benefits,
but the state-run insurance program in which
the city participates does not provide for domestic partner benefits, so the city has been
making a cash payment of $600 per month to
assist employees in buying individual coverage
for their partners. The union claims that this
violates the union contract, because the $600
does not fully cover the cost of buying comparable benefits, some partners have trouble qualifying for individual coverage, and the coverage
does not extend through retirement. The union
argues that the city should pull out of the state
program and sign up with an insurer that offers
domestic partnership coverage as part of its
health insurance package, but the city has been
resisting this step on cost grounds. The state actually faces the same problem, but is stymied
from changing by opposition to domestic partnership benefits by the Republican majority in
the State Assembly. The union indicated it
would attempt to take its grievance to arbitration. Capital Times, Feb. 28, 2007. A.S.L.
Criminal Litigation Notes
California — The California Court of Appeal,
4th District, ruled on February 14 that the California criminal ban on incest remains constitutional, even as applied to sex between a parent
and an adult offspring of the opposite sex, despite the U.S. Supreme Court’s decision in
Lawrence v. Texas. People v. Scott, 2007 WL
466084 (February 14, 2007). Gerry Glenn
Scott was convicted of incest by a jury upon evi-
March 2007
dence he had sexual intercourse with his
18–year-old daughter, and sentenced to six
years in prison, and appealed on the argument
that consensual adult sex is shielded by the
14th Amendment under Lawrence. Writing for
the unanimous panel upholding the conviction,
Judge King, citing Justice Scalia’s dissent in
Lawrence for the proposition that the Court not
found a fundamental right in that case, proclaimed that “there is a rational basis for criminalizing incest, specifically between consenting adults of the opposite sex who are related by
consanguinity (e.g., fathers and daughters) as
the present case involves.” King identified the
rational basis as “maintaining the integrity of
the family unit, in protecting persons who may
not be in a position to freely consent to sexual
relationships with family members, and in
guarding against inbreeding.” Interestingly, all
the cases King cites in support of California’s
interest in this regard are from other states.
King mentioned the recent Connecticut Supreme Court decision in State v. John M., 894
A.2d 376 (2006), declaring that state’s incest
law unconstitutional, noting that the Connecticut law was found to be overbroad in its application to persons related by affinity but not consanguinity, a flaw lacking from the California
statute. (It is probably worth noting that Scott
was also charged with rape, since his daughter
indicated that her participation, just days after
her 18th birthday, was not fully consensual, but
the jury did not convict on that charge.)
Hawaii — The Hawaii Supreme Court rejected a federal constitutional challenge to the
state’s prostitution statute in State of Hawaii v.
Romano, 2007 WL 588994 (February 27,
2007). Justice Levinson filed the sole dissenting, sharply disputing the court’s contention
that Lawrence v. Texas is irrelevant to this case.
According to Justice Levinson, Lawrence provides an analysis of “liberty” protected by the
Due Process Clause capacious enough to embrace consensual sex between adults, even
when there is a commercial exchange involved,
since the state’s primary reason for outlawing
prostitution is moral disapproval. But the majority insists that Lawrence was narrowly focused on consensual gay sex without any commercial element and stands for no broader
liberty principle. In other words, like almost
every other court to construe Lawrence, the Hawaii Supreme Court considers it to be a rational
basis case narrowly focused on consensual
adult same-sex relations and as establishing no
broader liberty principle that might be relevant
to considering the types of laws that Justice
Scalia insisted in his dissent were endangered
by the Supreme Court’s decision in that case.
Ohio — In State v. Lowe, 2007 WL 489234
(Feb. 28, 2007), the Ohio Supreme Court ruled
by a vote of 6–1 that the state’s incest statute
could be used to prosecute a man for having
consensual sex with his adult step-daughter, re-
51
jecting an as-applied challenge to the statute
premised both on statutory interpretation and
Lawrence v. Texas. Defendant Lowe argued first
that the incest statute was intended to protect
minors from sexual abuse by parents and siblings, and had no application to protecting an
adult for her stepfather. Disagreeing, the court
noted the “plain language” of the statute, which
makes no distinctions based on age. The dissent by Justice Pfeifer quoted from the legislative history, showing that the current incest statute was enacted as part of an overhaul of the
criminal code that had sharply reduced the
reach of the sex crimes provisions in order to
decriminalize consensual sex between adults,
and specifically shows that the incest provision
was intended by the legislators to protect children. Lowe argued that under Lawrence v.
Texas, in which the U.S. Supreme Court struck
down the Texas Homosexual Conduct Law,
Ohio could not outlaw consensual sex between
adults. In the opinion for the majority, Justice
Lanzinger, relying as most courts are wont to do
on Justice Scalia’s dissenting characterization
of the Lawrence court’s opinion, found that the
Texas law had been struck under the rational
basis test, concluding that consensual adult sex
was not identified as a fundamental right, and
thus the Ohio law was presumptively constitutional as applied to Lowe and his step-daughter,
so long as there was some rational basis for it.
Lanzinger permised that Ohio had a legitimate
interest in protecting the family unit by seeking
to deter sexual relationships between family
members other than spouses. Justice Pfeifer
did not address this analysis in dissent, premising the dissent solely on interpretation of the
statute in light of its legislative history and purpose. As to this, Pfeifer observed, “A stepparent, who may not even have married his or her
spouse until after the spouse’s children had
reached adulthood, has no legal responsibility
to his or her adult stepchildren… I suspect that
the statute was not employed in this case as a
means to preserve Ohio’s fractured extended
families. Rather, the state used [the statute] as a
means to prosecute a strict-liability, slam-dunk
sex offense that does not allow the defendant to
present any evidence regarding the consent of
the victim. R.C. 2907.03(A)(5) provides a
shortcut to a conviction. This sort of use of the
statute demeans its true purpose. The consent
of the alleged victim should remain a valid defense in cases involving adults.”
Ohio — State v. McKinney, 2007 WL
437839, 2007–Ohio–587 (Ohio App., 3d Dist.,
Feb. 12, 2007), presents yet another case in
which a domestic violence conviction was set
aside because the court determined that prosecuting the victim’s opposite-sex domestic partner would violate the state constitutional
amendment banning any legal recognition for
unmarried cohabitants. As different district
courts of appeal have taken opposing views on
52
the effect of the amendment on the state’s domestic violence law, the Ohio Supreme Court
accepted a case for review and will be considering the issue shortly. A.S.L.
Legislative Notes
Federal — Amidst speculation in the press that
three gay rights measures had a chance of passing in Congress this term — the Employment
Non-Discrimination Act, as revised to include
gender identity for the first time, a Hate Crimes
Penalty Enhancement Act that would include
sexual orientation and gender identity, and a repeal of the “don’t ask, don’t tell” military policy
— Rep. Martin Meehan (D-Mass.) took the first
step of reintroducing his proposal on the military ban on February 28. The measure was filed
with 109 co-sponsors in the House, including
six Republicans. The measure would both repeal the ban and adopt a non-discrimination
policy on grounds of sexual orientation for the
Armed Forces.
Alaska — It is uncertain whether a referendum will actually be held this year to determine
whether Alaskans want to amend their constitution to prohibit the provision of benefits to
same-sex partners of public employees. A bill
was passed and signed into law in November
authorizing such a vote, but some legislators
were expressing doubts about whether it was
worth the expense and trouble, and there was a
possibility the legislature would vote to abandon the procedure. KTUU.com, Feb. 6.
California — Refuting speculation that he
might sign a bill allowing same-sex marriage if
it passed the legislature, Governor Arnold
Schwarzenegger stated that he would refuse to
sign such a measure. Responding to a question
from a student at a YMCA Youth conference, he
said, “No, I wouldn’t sign it because the people
of California have voted on that issue.” In other
words, he now seems to take the position that
the passage of Proposition 22 in 2000, which
enshrined an opposite-sex definition of marriage in the California statute book, disempowers the legislature from adopting a same-sex
marriage bill. In Schwarzenegger’s view, only a
new referendum could legislate same-sex marriage. Which for now leaves matters in the
hands of the state Supreme Court, which will
shortly take up the consolidated marriage litigation. Sacramento Bee, Feb. 16.
Hawaii — Hawaii is one of several states as
to which there has been media speculation that
civil union legislation will be enacted this year,
but a proposal suffered a serious setback on
February 27 when the House Judiciary Committee held hearings on the proposal but adjourned without taking a vote. An Associated
Press report filed on February 28 suggested that
the measure had been effectively killed for this
session, as proponents did not push for a vote
March 2007
because they decided there was insufficient
support to bring the measure forward.
Indiana — The state Senate vote 39–10 in
favor of a proposed constitutional amendment
that would ban same-sex marriage or any legal
recognition for unmarried couples, regardless
of gender. The measure was approved on a party
line vote in the Republican-controlled chamber. The state House is controlled by the Democrats. 365Gay.com, Feb. 12.
Kentucky — Responding to a decision by the
University of Louisville to offer domestic partnership benefits, the Republican-controlled
Kentucky Senate approved a bill banning all
state agencies from offering such benefits, but it
is expected to die in the Democratic-controlled
House, where it has been sent to the House
Health and Welfare Committee, whose chair,
Louisville Representative Jack Burch, said it is
not likely to advance very quickly. At least one
proponent of the bill said, “This is basically a
graveyard committee for this bill and everybody knows that.” Lexington Herald-Leader,
Feb. 22.
Utah — No matter that the Supreme Court
has said that the 14th Amendment bars states
from criminalizing consensual private adult
sodomy, the Republicans who control the Utah
Senate are opposed to removing such a ban
from the state’s criminal statutes. On February
22, the senators rejected an amendment to a
pending measure to revise the state’s sex
crimes laws, HB86, which would have eliminated the existing provisions banning sodomy
involving consenting adults. The measure
would have retained the ban on sodomy with
minors. The amendment was proposed by the
state’s openly-gay senator, Scott McCoy, a Salt
Lake City Democrat, who said he thought it was
“bad form when we leave unconstitutional laws
on the books,” where they might be misused by
prosecutors or judges. The response of Senate
Majority Leader Curt Bramble, a Provo Republican, was: “The Senate caucus unanimously
decided that sodomy should not be legal in the
state of Utah,” apparently regardless of what
the U.S. Supreme Court thinks about the matter.
Deseret News, Feb. 23.
Vermont — The Civil Union Act was passed
in 2000, making Vermont the first state to legislate something akin to marriage for same-sex
couples in the United States. Now, some Vermont legislators hope to move the state into the
forefront again, introducing a bill to open up
marriage itself to same-sex couples. (The California legislature passed such a bill, but the
governor vetoed it. There are also hopes in California that if the legislature were to pass the
measure again, the governor might sign it this
time around, now that he is term-limited and
can’t run for re-election.) Beth Robinson, one of
the attorneys who litigated the Baker case that
led to civil unions, said that it is now time to
push for marriage, as attitudes in the state have
Lesbian/Gay Law Notes
changed as a result of the experience with civil
unions. Times Argus, Feb. 7.
Washington — Committees in both houses of
the legislature have approved a state domestic
partnership bill that would provide for partner
registration and a limited menu of rights. The
measure is somewhat similar to the Domestic
Partnership law enacted in New Jersey in 2004,
which has since been supplanted by a Civil Union Act adopted under court order. The Washington state supreme court rejected a state constitutional challenge to the denial of marriage
rights to same-sex partners last year in a 5–4
decision. 265Gay.com, Feb. 12. ••• Proponents of same-sex marriage, seeking to make a
point about the reasoning of last year’s state supreme court ruling on same-sex marriage
which asserted that marriage is intended to provide a superior environment for raising children, have filed Initiative 957, which would
amend state law to limit marriage to men and
women who are capable of having children, and
would require that all marriages be dissolved
after three years if no children had been procreated by the couple. The proponents have described their proposal as absurd but consistent
with the court’s decision limiting marriage to
couples with procreative potential and reserving scarce resources by denying benefits of
marriage to those who don’t procreate. Associated Press, Feb. 6. A.S.L.
Law & Society Notes
Military-trained translators — U.S. Rep. Gary
Ackerman commented to Secretary of State
Condoleeza Rice at a legislative hearing that
since the military had dismissed so many gay
linguists and the State Department suffered a
shortage of persons fluent in Middle East languages, she should consider offering positions
to the folks who had been dismissed from the
Armed Forces. A few days later, an official of the
State Department called Ackerman’s office to
say that they were considering his suggestion.
So, this could set up an interesting career path
for closeted gay folks with linguistic interests:
join the military, get the excellent intensive
training from the Defense Department’s language program, “come out” and get discharged,
and then go to work for the State Department.
The irony, of course, would be if the gay linguists were then posted to State Department
posts in the Middle East and find themselves
working next to military personnel — at the
higher pay levels of the civilian bureaucracy.
Florida — On February 27, the Largo, Florida, City Commission voted 5–2 to initiate discharge proceedings against City Manager Steven B. Stanton, who after 14 years of service in
that position has announced that he is transsexual and plans to undergo gender reassignment.
He is already receiving hormone treatment preparatory to living as a woman and ultimately
Lesbian/Gay Law Notes
undergoing sex-reassignment surgery. City
Commissioners were quoted as saying they had
lost trust in Stanton, who had been selective in
confiding about his situation with some city officials and not others. They expressed the view
that they could no longer rely on him to perform
his duties without bias towards those who were
supportive of his sex change, including Mayor
Pat Gerard, who was one of the dissenters in the
vote. Florida state statutes do not provide any
protection against gender identity discrimination, so any legal claim Stanton might have
would need to be premised on the state or federal constitutional equality requirements, untested on this point. Stanton was suspended
from active duty as part of the February 27 vote.
Based on his seniority, he would be entitled to a
severance package including a year’s salary if
the removal becomes final. He has the right under the city charter to request a public hearing
before the Commissioners take a final vote on
the dismissal. New York Times, March 1.
New York — A coalition called Queers for
Economic Justice announced on February 7
that after much hard work by community members and organizations, the NYC Department of
Homeless Services had agreed to change its
policies and would recognize domestic partners
for purposes of provision of shelter to homeless
families.
Virginia — InsideHigherEd.com reported
Feb. 28 that Christopher Newport University, in
Newport News, Virginia, adopted a policy banning sexual orientation discrimination in admissions and employment decisions, even
though the Attorney General of Virginia had
opined that the state school could not adopt
such a policy because state law does not forbid
such discrimination. The student government
had lobbied the administration to adopt the policy, student body president Molly Buckley stating, “This is a somewhat conservative campus
and some gay students say that they don’t feel
safe speaking up in the classroom or walking at
night,” so the school had to take a stand by banning discrimination. Attorney General Robert
McDonnell had argued that units of the state
government cannot take a position contrary to
that taken by the legislature, which has refrained from banning such discrimination. A
university spokesperson said they did not feel
bound by that opinion, pointing out that Governor Kaine had issued an executive order banning sexual orientation discrimination in agencies under his supervision.
Washington State — The Port of Seattle and
the Teamsters Union reached an agreement that
will extend health care benefits to domestic
partners of port-employed union members. The
Port Commission unanimously approved the
deal on February 27, expanding an existing program that has benefited other Port employees
since 1994. The Teamsters expect to use this
agreement as a pattern when bargaining in their
March 2007
other 800 bargaining units in the state. Seattle
Post-Intelligencer, Feb. 28.
Comair — Independent Online (Feb. 28) reported that Comair, an international carrier, had
issued a formal apology to British businessman
Jamie Robertson, who was offended when a
flight attendant threw a blanket over him as he
had his arms around his partner, Francois von
Tonder, on a flight from Cape Town to Johannesburg, South Africa. Robertson had complained
to the Human Rights Commission following the
February 11 incident.
Hampton University — Private schools are
not subject to constitutional requirements of respecting free speech, political association and
equal protection, and thus the grounds for challenging a refusal by a private college to recognize an LGBT student group are limited, especially in a state that does not forbid sexual
orientation discrimination in places of public
accommodation. Thus, students at Hampton
University have little legal recourse now that
the University has officially denied their request for recognition of a group, ostensibly because the administration has decided that there
are enough campus groups and has imposed a
moratorium on the recognition of new ones —
presumably inspired by the possibility that an
LGBT group would apply for recognition. InsideHigherEd.com, Feb. 26. A.S.L.
Australian Government Vetoes Second Partnership
Bill
The federal government of Australia announced that it will disallow a Civil Partnerships Bill which was introduced by the centreleft Labor government of the Australian Capital
Territory (ACT) in December 2006. The Bill
was an attempt to replace the Territory’s Civil
Unions Act which was disallowed by the federal
government in June 2006 (LGLN, Summer
2006, pp 147–48).
The new Bill avoided the word “union” after
the federal government — made up of a coalition of conservative parties — complained that
it equated same-sex unions with marriage. The
Bill also deleted provisions saying a civil union
was to be treated in the same way as marriage
under ACT law. Instead, the Civil Partnerships
Bill provided that a civil partnership was a domestic partnership, a concept already wellestablished in Territory law.
The ACT had written to the federal government seeking its views on the new bill but got no
response before the federal Attorney-General’s
media release announcing it would disallow the
bill. He said, “It remains the Government’s
opinion that the Civil Partnerships Bill would
still in its amended form be likely to undermine
the institution of marriage.” He said one of his
major concerns was that the law allowed a couple to register their partnership with a cere-
53
mony which was too similar to a marriage ceremony.
The ACT Attorney-General deplored the federal government’s unwillingness to even provide feedback on the bill and said it will now sit
in the ACT Legislative Assembly until after the
next federal election (due later this year) in the
hope a federal Labor government will allow it to
pass. David Buchanan SC
International Notes
Anglican Church — A meeting of Anglican
leaders held in Tanzania concluded with a resolution calling on the U.S. Episcopal Church to
unequivocally eschew the performance of
blessings for same-sex unions and the consecration of openly gay bishops. A deadline was
set for September 30 for the U.S. church to
come into line with the doctrine espoused by
the rest of the Anglican communion worldwide,
or possible to be relegated to a secondary status
within the church that would deprive the
American church of full participation in the activities of the church. Los Angeles Times, February 20. Judging by a live webcast on February
28, the Presiding Bishop of the American
church, Most Rev. Katharine Jefferts Schori is
urging the American church to back down from
its gay rights stance to the degree necessary to
preserve its position within the Communion.
She said that her own views on LGBT issues, including support for ordination of gay clerics
and blessings for same-sex unions, have not
changed, but, she said, “I’m called to be pastor
to the whole church,” including those in the
U.S. church who differ form the majority on this
issue. Now the church confronts the important
question of whether the American church is
willing to compromise its principles on gay
rights in order to remain part of the international Communion, or whether it is willing to
break away and constitute an authentically
American church not beholden to the views of
Anglican church leaders in Africa and Asia
who are overwhelmingly opposed to gay rights.
Associated Press, March 1.
Australia — The Administrative Decisions
Tribunal in Sydney has ruled against a complaint filed by gay activist Gary Burns against
broadcaster John Laws, premised on Laws’ use
of language ridiculing gay men on the air during
a 2004 broadcast about visiting U.S. television
personality Carson Kressley. The Tribunal
ruled 2–1 that although the on-air comments
did vilify people based on their sexual orientation, they were within the acceptable limits of
freedom of expression protected in Australian
law, and did not violate the Anti-Discrimination
Act. ABC Premium News, March 1.
Cameroon — The International Gay and
Lesbian Human Rights Commission reported
on February 28 that the High Court in Yaounde
had ordered the release of Alexandre D., who
54
has been detailed for more than two years with
the filing of any official charges on allegations
of homosexuality. IGLHRC in collaboration
with two other organizations had hired lawyers
to bring a habeas corpus proceeding on Alexandre’s behalf, and the judge ruled that the state
had presented no relevant evidence to warrant
holding the man further. Under the Cameroonian Penal code’s Article 347, consensual
same-sex intercourse is a felony punishable by
up to five years imprisonment. IGLHRC’s Africa specialist observed that Alexandre is the
seventeenth Cameroonian person held on such
charges to have been released in the past year.
Canada — A young man claiming to be gay
was denied asylum in Canada because the Immigration and Refugee Board decided that he
had not proved his sexual orientation, according to a Feb. 7 article in the Globe and Mail. Alvaro Antonio Orozco fled Nicaragua as a teenager and is now 21. According to the Board
member who heard his case, his proof fell short
because he had not been sexually active as a
teenager and was only 12 when he fled Nicaragua, at which time he wasn’t certain about his
sexual orientation. As the newspaper report
comments, he is “slated for removal... to a
country where sodomy is illegal and to a family
that he says beat him and taunted him for his
sexual orientation ever since he was a young
boy.” Orozco planned to appear for a ministerial permit from the Immigration Minister, Diane Finley, while an immigration law specialist
newly retained to represent him tries to get the
proceedings reopened for additional evidence.
Colombia — The Constitutional Court ruled
on February 7 that same-sex couples are entitled to the same rights as common-law marriage
couples under the nation’s inheritance laws.
Colombia Diversa, a gay rights group, brought
the lawsuit to the Constitutional Court, arguing
that failure to accord such rights would be unconstitutional discrimination by the state. Several attempts to solve the inequality through
education had failed in the legislature in the
past, but another proposal is pending in the
lower house, having been approved in the Senate in October. The ruling of the court was characterized by one observer as “sweepingly affirming lesbian and gay couples’ constitutional
rights.” Boston Globe, Feb. 9.
France — Segolene Royal, the socialist-party
candidate for President of France, announced
her platform to include advocacy of marriage
for same-sex couples, according to press reports on February 13. Her leading opponent,
UMP Party candidate Nicolas Sarkozy, a social
conservative, opposes same-sex marriage and
gay adoption. ••• On February 20, France’s
highest court ruled that a lesbian co-parent
may not adopt her partner’s child, because the
law would require terminating the parental
rights of her partner, the birth mother. The court
basically took the position that the only way
March 2007
both members of a same-sex couple could be
legal parents of the same child would be if the
law were changed to allow them to marry.
Gay.com, Feb. 21.
Italy — Hopes for passage of some sort of
civil union law in Italy took a nose-dive when
Prime Minister Romano Prodi, whose government had announced it would propose such a
measure, submitted his resignation after losing
a close vote on a key foreign affairs question on
February 21. There had been dissension within
the government over this proposal in any event,
so its passage was never a sure thing, even with
the support of Prodi’s party, which was governing as part of a coalition. Independent (UK),
Feb. 23. Prodi was successful in putting together a new coalition that would allow his government to continue, but one of the prices paid
was an agreement not to push the partnerrecognition measure, which apparently was
necessary to keep on board Roman Catholic
party members who were under heavy pressure
from the Vatican to oppose any legal recognition
for same-sex partners. Globe and Mail, March
1.
Mexico — The Associated Press reported on
Feb. 10 that some conservative legislatures
have applied to the nation’s highest court for an
order overturning the same-sex civil union law
that was recently enacted in the northern state
of Coahuila. They argue that the measure is in
conflict with a constitutional provision intended to protect the traditional family unit.
New Zealand — A gay refugee from Iran was
granted asylum even though he had initially
misled immigration officials about the reasons
he had fled the country, according to a February
5 article in the Dominion Post. Ahmad Tahooni
arrived in NZ in 2000, claiming to have fled
Iran due to fear of political persecution for his
involvement in student demonstrations. He was
denied asylum and his appeal was dismissed in
2003 when his story was deemed “implausible
in the extreme.” He then filed a second appeal
on the ground that he was gay and would be
subject to persecution if returned to Iran. The
Refugee Status Appeals Authority accepted Tahooni’s argument that he was too embarrassed
about his homosexuality to disclose it in 2000,
but that in the interim, while living in the free
society of NZ he had “evolved into a confident
— even flamboyant — gay man.” Tahooni told
the immigration authorities, “When I arrived
here I gradually learnt not to live life in a closet
any more. I was inspired by the freedom here.”
The Authority agreed that Tahooni was “genuinely gay” and noted that gays are subject to
persecution in Iran. The Authority found credible his evidence that his family “abhorred” his
homosexuality and that he would be in danger if
returned to his home country.
Russia — Organizers of last year’s attempted
gay pride parade in Moscow have filed suit
against the city’s mayor, Yury Luzhkov, de-
Lesbian/Gay Law Notes
manding a retraction of his recent remarks that
such a parade must be prohibited because “it’s
impossible to call it anything other than a satanic act.” The mayor has publicly proclaimed
that “propaganda of single-sex so-called love
[is] unacceptable,” according to an online report by Edge Publications on Feb. 26.
Sweden — The Gota Court of Appeal ruled
on February 9, in Case No. OA 3324–06, that
the female registered partner of a birth mother
may adopt the child. The child was conceived
in Denmark using anonymously donated sperm
(which would not be possible in Sweden because the law requires that it be possible for a
child to access information about the identity of
a sperm donor). The district court had denied
the application, but was reversed on appeal, the
court finding that it would be in the best interest
of the child to have the security of two legal parents, and that the fact that the parents are both
of the same sex raises no special concerns. This
is a final, non-appealable ruling.
Turkey — Umut Guner, vice chair of a gay
rights group and chief editor of KAOS GL, the
country’s only gay-oriented magazine, was acquitted on Feb. 28 of charges of disseminating
pornographic material. The charges were based
on distribution of the magazine’s July 24, 2006,
issue, which had an article examining the subject of pornography that included illustrations
with nude figures. The police had confiscated
all issues of the magazine before it could appear
at retail outlets or be distributed to subscribers,
and the acquittal was based on the judge’s determination that the alleged offence had not actually occurred since the issue was never distributed as a result of the confiscation — a
technicality. The magazine is bimonthly. Turkish Daily News, March 1.
United Kingdom — In Ditton v. CP Publishing, a labor tribunal ruled that the employer
should pay 118,000 pounds compensation to a
gay man who was discharged as a sales manager just eight days after he began working at an
annual salary of 80,000 pounds. The tribunal
heard testimony that Jonah Ditton was subjected to a stream of anti-gay name-calling by
his boss, and then discharged on the ground
that he was not “psychologically balanced.”
Sexual orientation discrimination in employment is unlawful in the U.K. The tribunal found
that the employer’s conduct was “highhanded,
malicious, insulting and oppressive. According
to Tribunal Chair June Cape, “While the claimant was only employed for a short period, the
company, and in particular Mr. Paul, abused
and humiliated him on the grounds of his sexual
orientation persistently over that time. It resulted in injury to feelings and ultimately depression which affected him for around 18
months.” The breakdown of damages is 10,000
pounds for injury to feelings, 76,937 for pecuniary loss (the balance of one year’s pay), and
26,081 for the failure of the company to comply
Lesbian/Gay Law Notes
with the regulation on sexual orientation discrimination. The company appeared pro se at
the Tribunal. Daily Mail, Feb. 13. ••• In Martin v. Parkam Foods, a Liversedge company was
ordered to 17,000 pounds compensation to a
work who claims to have been fired for complaining about being the victim of offensive and
homphobic graffiti in the workplace. The tribunal said that Mr. Martin was “completely humiliated” by the company’s failure to treat his
complaint seriously, and awarded extra aggravated damages upon concluding that the company made “no real effort” to identify the perpetrator. The company insisted even after the
adjudication that it had done nothing wrong,
had taken the complaint seriously, and had implemented a new procedure to respond to such
allegations. ThisisBradford.co.uk, Feb. 7.
A.S.L.
Professional Notes
Evan Wolfson celebrated his 50th birthday with
a benefit party for Freedom to Marry, the advo-
March 2007
cacy organization that he heads. The event
caught the attention of the New York Times,
which ran a “Public Lives” profile of Wolfson
on February 16. Wolfson, previously a staff attorney and Director of the Marriage Project at
Lambda Legal, remains an impassioned advocate for the right of same-sex couples to marry.
Characterizing the current situation, he told the
Times: “One state down, 49 to go.”
The board of directors of the LGBT Law Association of Greater New York announced the
election of Brad Snyder as president of both LeGaL and the LeGaL Foundation Boards. Snyder
is an assistant corporation counsel at the New
York City Law Department. Laurie Marin will
serve as First Vice President of LeGaL, and Natalie Chin will serve as Second Vice President.
Other officers include the Honorable Charles
D. McFaul, who was re-elected as Secretary of
the LeGaL Foundation Board, and Caprice Bellefleur/Richard Grossman, elected Treasurer of
the LeGaL Foundation Board. LeGaL’s annual
dinner will be held on March 15.
55
UCLA Law School announced that a gay couple, John McDonald and Rob Wright, have donated $1 million to establish an endowed faculty chair at the school’s Williams Institute on
Sexual Orientation Law and Public Policy. The
purpose, according to McDonald, is “to support
legal scholarship, legal research and education
that covers a whole area so fundamental to creating change.” The actual establishment of the
chair, and the naming of the professor to hold it,
depends on the University’s determination that
it is consistent with the institution’s research
and teaching missions. Brad Sears, executive
director of the Institute, suggested that this may
be the first endowed faculty chair in a law
school devoted to sexual orientation law and
public policy. Los Angeles Times, Feb. 26.
The New Jersey State Bar Association has
given formal approval to a Gay Lesbian Bisexual and Transgender Rights Section. Congratulations are due to Danny Weiss and Tom
Prol who have been working long and hard to
achieve this status within the NJ State Bar.
A.S.L.
AIDS & RELATED LEGAL NOTES
D.C. Circuit Sustains Restrictions on Grantees for
HIV/AIDS Programs
A unanimous panel of the U.S. Court of Appeals
for the D.C. Circuit ruled on February 27 that
the U.S. government can premise eligibility for
federal contracts for international AIDS prevention work on a potential grantee certifying
that it has a policy opposing prostitution and
sex trafficking. DKT International, Inc. v. U.S.
Agency for International Development, 2007
WL 581815. Reversing a ruling by the D.C.
District Court, the appeals panel found no First
Amendment violation.
As part of the Bush Administration’s initiative to fund AIDS prevention efforts overseas,
Congress enacted the U.S. Leadership Against
HIV/AIDS, Tuberculosis and Malaria Act in
2003. A provision of the Act, 22 U.S.C. section
7631(f) provides that funds may not be provided under the Act “to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking,” with
the exception of certain international NGO’s
specified in the Act. DKT International had applied for funding to distribute lubricant for use
with condoms in Vietnam as part of an HIVprevention program, but was told that it was
disqualified because the organization does not
have, and could not certify to having, a policy
against prostitution and sex trafficking. DKT
takes the position that it must preserve its neutrality on these issues in order to be able to work
effectively with sex workers, and so has not
taken any organizational stance with respect to
whether such activities should be subject to
criminal sanctions.
The district court had concluded that the requirement to adopt and certify to having such a
policy violated the organization’s First Amendment rights of freedom of speech, but the appellate panel disagreed, in an opinion by Circuit
Judge A. Raymond Randolph. Randolph found
that part of the government’s policy in combating HIV was to combat sex trafficking and prostitution, and that it could determine to fund only
those organizations whose position was compatible with this goal.
Likening the case to Rust v. Sullivan, 500
U.S. 173 (1991), in which the Supreme Court
rejected a constitutional challenge to a federal
regulation that disqualified family planning organizations from receiving federal funds if they
provided any abortion information or counseling to their clients, Randolph wrote, “The government may speak through elected representatives as well as other government officers and
employees. Or it may hire private agents to
speak for it, as in Rust v. Sullivan. When it communicates its message, either through public
officials or private entities, the government can
— and often must — discriminate on the basis
of viewpoint. In sponsoring Nancy Reagan’s
‘Just Say No’ anti-drug campaign, the First
Amendment did not require the government to
sponsor simultaneously a ‘Just Say Yes’ campaign.”
Since Congress had adopted opposing legalized prostitution as part of its strategy to combat
the spread of HIV, said Randolph, it could require that organizations receiving money as
part of the campaign have policies in line with
this strategy. DKT objected that this violated its
speech rights because all of its programs had to
be in compliance, even those funded from other
sources, not just the particular program receiving the funding. Again, pointing to the Rust ruling, Randolph found this unobjectionable, observing that DKT could, if it wanted to avoid
adopting the required policy, incorporate a
separate subsidiary to receive and perform
tasks under this program, so long as the subsidiary had an express policy of opposition to
sex trafficking and prostitution. In Rust, the Supreme Court had offered this separate subsidiary device as a way that Family Planning organizations could comply with the abortion
regulation. A.S.L.
Texas Appeals Court Upholds Workers
Compensation Award for Work-Related HIV
Transmission
Affirming a jury verdict, the intermediate Texas
Court of Appeals in Houston upheld an award
of worker’s compensation benefits to Angela
Price, a health care worker who claimed to have
contracted HIV from an on-the-job needle
stick, despite evidence that the worker had
tested negative for HIV antibodies as late as 17
months after the incident. In Christus
Health/St. Joseph Hosp. v. Price, 2007 WL
274233 (Tex. App.-Hous., 1st Dist., February
1, 2007), the appeals court rejected various
evidentiary and sufficiency challenges made
by the employer hospital, whose basic contention was that testing negative so long after the
needle stick rendered it a virtual impossibility
that the worker had in fact contracted HIV from
the stick. Noting that it was the employer’s burden to prove that the worker had not contracted
56
HIV from the needle stick, the court affirmed
that the jury had sufficient evidence before it to
justify its verdict in Price’s favor.
Price was working as a certified nursing assistant for Christus Health/St. Joseph Hospital
on June 30, 1994, when she was stuck by a needle she had used while attempting to draw
blood from a patient. Price immediately notified her supervisors and, in accord with hospital practice, she was tested for HIV antibodies
immediately and in follow-up tests in August
1994, December 1994, and April 1995. Price
tested negative each time. There was also evidence (to be discussed) that Price tested negative again in November 1995, some 17 months
after the needle stick.
In December 1998, however, Price tested
positive for HIV as part of a physical examination she undertook while applying for life insurance. Contending that she contracted HIV from
the 1994 needle stick injury, Price applied for
worker’s compensation benefits, which were
awarded by the Texas Worker’s Compensation
Commission (TWCC) following a hearing in
which Christus contested the benefits. The hospital subsequently brought suit to overturn the
TWCC decision, resulting in a jury verdict and
judgment in Price’s favor. On appeal, Christus
argued that the evidence was insufficient to
support the verdict, and also made two evidentiary challenges: (1) that the court erred in refusing to admit records of Price’s November
1995 negative test, and (2) that the court erred
in allowing Price’s treating physician to give
expert testimony that the 1994 needle stick had
been the source of infection.
Writing for the unanimous court, Justice Elsa
Alcala first held that Christus’s sufficiency
challenges had not been preserved for review
(although, as will be discussed, the sufficiency
was addressed in rebuffing the challenge to Price’s expert testimony). Regarding the records of
Price’s November 1995 negative test, which
the trial court excluded pursuant to a Texas evidentiary rule requiring business records to be
on file with the court at least 14 days before
trial, Alcala wrote that excluding the records, if
it was error, was harmless, pointing out that not
only had an expert for Christus testified about
the negative test, but Christus’s experts had
also testified that, even based solely on the
other negative tests (through April 1995), there
was 99% probability that the needle stick had
not caused Price’s infection. The actual records
of the November 1995 test were therefore cumulative and their exclusion harmless.
Christus’s expert witness challenge was directed to the reliability of the testimony of Dr.
Salvato, a specialist in HIV/AIDS treatment
who had been Price’s treating physician for the
previous six years. Salvato testified that, based
on her experience, the history related by Price,
Price’s T-cell progression, and articles and
other publications regarding the timing of sero-
March 2007
conversion, it was Salvato’s opinion that the
needle stick had been the source of Price’s infection. Christus’s primary attack on Salvato’s
testimony was that she relied in part upon an article in the New England Journal of Medicine
which described 31 patients with HIV, 27 of
whom stayed seronegative for up to 36 months.
Christus argued that Dr. Salvato improperly relied upon this study because it was based on
gay men, but Justice Alcala rejected that challenge, stating that “the hospital does not explain the significance of the gender or sexual
orientation of an HIV positive patient.” Noting
Dr. Salvato’s testimony that “it doesn’t matter
how you got the virus, the virus is the same,” the
court held that it was not an abuse of discretion
to admit Salvato’s testimony.
Moreover, said Justice Alcala, any error in
admitting the testimony was harmless. Christus
had argued that, without Salvato’s testimony,
there was no evidence to support Price’s contention that the needle stick had caused her infection. The court, however, stressed that it was
the hospital’s burden to prove that the needle
stick had not caused the infection. Moreover,
said Justice Alcala, there was evidence to support the jury’s finding, namely that even the
hospital’s expert had testified that it was possible to remain seronegative so long after infection, and that Price’s testimony had effectively
eliminated all other possible sources of infection, including IV drug use or sexual transmission. The jury, said the court, was entitled to believe this testimony and to find that Christus
had not met its burden of proof. Glenn C. Edwards
Florida Appeals Court Revives HIV Discrimination
Suit Against Restaurant
An HIV+ restaurant cashier will be able to
pursue her statutory discrimination claim
against the corporate owner of several Wendy’s
fast-food restaurants in Florida, as a result of a
February 14 decision in Byrd v. BT Foods, Inc.,
2007 WL 461322 (Fla. 4th Dist. Ct. App.), reversing a grant of summary judgement to the
company on the statutory claims.
Cameshia Byrd began working as a cashier at
a Wendy’s operated by the corporate defendant
in November 2003. She notified her supervisor,
Rose Johnson, that she was HIV+. According
to the court of appeal opinion by Judge Robert
Gross, Johnson informed her supervisor, the
store manager, who in turn informed her supervisor in the corporation. The company required
employees to call in if they had to miss a shift
for medical reasons, but did not routinely require them to document the reason for these absences with a doctor’s note. However, when
Byrd missed several days due to illness requiring a hospitalization, she did bring in documents for her supervisor from the hospital
showing the nature of the treatment. At that
Lesbian/Gay Law Notes
time, Johnson allegedly told Byrd that Johnson
had not informed corporate about Byrd’s HIV
condition, since if they found out she was ill
they would try to get rid of her.
When Byrd was out of work for several days
in June 2004 due to side effects from her medication, she claims that she went with her boyfriend to her doctor’s office, where the nurse
prepared a formal certificate for her that was
signed and dated by the doctor. Her boyfriend
took the note to the workplace and presented it
to Johnson, but he claims that Johnson asserted
that it was a forgery and required something
“harder” to document the illness. The company
claims that what the boyfriend presented was
just a wrinkled piece of paper with the doctor’s
name and phone number written on it.
Byrd alleges that things went downhill for her
at Wendy’s over the ensuing weeks. She had
asked for a shift change to accommodate her
medical condition, which she says she was
promised, but it did not happen. She also says a
promised pay increase did not materialize, and
that she was sent on a wild goose chase to several different Wendy’s locations for work assignments that also did not materialize. Finally
she filed suit in Florida state court, alleging violations of the civil rights act (disability discrimination) and the Florida Omnibus AIDS
Act (which forbids HIV-related discrimination), as well as a tort claim for intentional infliction of emotional distress.
The trial judge, Broward County Circuit
Judge Dorian K. Damoorgian, granted the company’s motion for summary judgment on all
claims, finding that Byrd was not “disabled”
within the meaning of the civil rights law and
had not suffered “discrimination” within the
meaning of either statute. Damoorgian also
concluded that the factual allegations were not
sufficient to sustain the emotional distress
claims, a conclusion with which the court of appeal concurred.
But the three-judge appeals panel unanimously reversed as to the statutory claims.
Judge Gross noted that Byrd could qualify as a
person with a disability on three grounds recognized in analogous federal case law or prior
Florida cases — impairment of reproductive
function, breathing, and ability to work. Furthermore, he noted, there was a dispute as to the
facts, and taking Byrd’s allegations as a whole,
there was a factual basis for a discrimination
under both statutes. Gross also noted that under
the Omnibus AIDS law, discrimination is prohibited based on HIV-status without regard to
whether the individual is actually disabled. He
also noted that the standard for summary judgment in a case with contested facts is more
stringent under Florida law than under federal
law, so the trial court erred in granting judgment when crucial facts were contested. A.S.L.
Lesbian/Gay Law Notes
Third Circuit Remands HIV+ Haitian’s CAT
Claim for “Fresh Look” by IJ
A Haitian man who first tested HIV+ in the
course of proceedings by immigration authorities to deport him back to Haiti because of his
complicity in a small-time drug deal is entitled
to a new hearing before an Immigration Judge to
consider whether sending him back to Haiti,
where he would be immediately confined in a
prison that provides no HIV-related treatment
would violate his rights under the Convention
Against Torture. Lavira v. Attorney General,
2007 WL 570257 (3rd Cir., Feb. 26, 2007).
Maurice Lavira has been in the U.S. as a refugee since 1993. According to the opinion by
Circuit Judge Rendell, he is “an above-theknee amputee with a lifelong political affiliation with exiled former President JeanBertrand Aristide” and, as such, would certainly be thrown into a notorious prison in Haiti
that has been described as presenting “slave
ship conditions.” As described in this opinion,
the behavior of the Immigration Judge in rejecting Lavira’s claim is inexplicable. The judge’s
opinion, as described by the court, contradicts
the record in its characterization of the evidence presented as well as mischaracterizing
the nature of Lavira’s claim. It is almost as if the
judge’s decision, which was rubber-stamped on
appeal by a single member of the Board of Immigration Appeals without any apparent substantive review, was drafted by somebody ignorant of the case.
In remanding, Judge Rendell commented,
“Neither the IJ nor the BIA focused on the specifics of Lavira’s situation in denying his CAT
claim. When the IJ’s findings are ‘wholly unsupported by the record and essentially ignore
the actual basis of [the] claim,’ the case must be
remanded so the IJ may take a ‘fresh look... one
that focuses on the true underpinnings of that
claim.… This happened here: Lavira presented an individualized attack on his removal
to Haiti, an attack that was obviously specific to
his case in light of the doctor’s report on his
medical condition and the expert report descriving how removal would cause Lavira to
lose 30 pounds in a short time. The IJ deemed
Lavira’s petition a general attack on the Haiti
facility, and stated that there was no evidence
that he would be ‘singled out.’ This was not only
contradicted by the record, but by the IJ’s own
statements during Lavira’s hearing. The IJ
evinced great concern that Lavira would experience intense suffering based on his physical
condition if sent to the Haitian facility, and this
concern was demonstrated even before it was
known that Lavira was HIV positive. The IJ on
her own distinguished Lavira from the petition
in Matter of J-E [a 3rd Circuit case that had rejected a generalized attack on Haitian prison
conditions as the basis for a CAT claim]. After
receiving an indication from the Government
March 2007
that it would seek discretionary deferral, the IJ
appearsr to have done an about-face and reframed Lavira’s challenge as a generalized attack, ignoring significant evidence to the contrary without any explanation whatsoever.”
The court also remanded on the question
whether Lavira had engaged in a “particularly
serious crime,” thus forfeiting any claim for
withholding of deportation and leaving his
status in the U.S. totally dependent on his CAT
claim. The allegation was that he had purchased a $10 bag of drugs for an undercover
agent, which the government, following its uniform policy when drugs are involved, classifies
as a “particularly serious crime” justifying deportation. The court expressed its doubts about
this. A.S.L.
AIDS Litigation Notes
Federal — 3rd Circuit — In United States v.
Wells, 2007 WL 419714 (Feb. 8, 2007) (not officially published), the court upheld District
Judge William W. Caldwell’s imposition of a
sentence well below the range in the recommended federal sentencing guidelines for an
HIV+ defendant on drug-related offenses.
Nonetheless, the defendant appealed, claiming
the sentence should have been even shorter
due to his circumstances. In refusing to
second-guess the trial judge, Judge Cudahy
wrote that the court of appeals lacked jurisdiction to substitute its judgement for the trial
judge on sentencing unless it was shown that
the trial judge was not aware of and did not exercise its jurisdiction. In this case, it was clear
that the trial judge was aware of defendant’s
HIV status and of its authority to take that into
account in sentencing. Finding that the district
court had not ignored any of the issue that Wells
raised on appeal, write Cudahy, “It discussed
Wells’s HIV infection with him at length and indeed imposed a below-guidelines sentence because of it. The restitution order was within
guidelines bounds and, based on the PSR’s unchallenged finding that Well could pay a minimal, below-guidelines fine through an Inmate
Financial Responsibility Program, within his
means... We are convinced that the district
court meaningfully considered Wells’s contentions and imposed the sentence it did in an exercise of its discretion.”
Federal — New York — In Hippe v. Life Insurance Company of North America, 2007 WL
433403 (E.D.N.Y., Feb. 6, 2007), Senior District Judge I. Leo Glasser, ruling on pre-trial
motions in an HIV-related disability benefits
dispute, found that neither side was entitled to
summary judgment on the issue of medical disability, but that evidence before the court supported granting summary judgment to the
plaintiff, Darrell Hippe, on mental disability.
Hippe was taking numerous medications to
control his HIV-infection and having difficul-
57
ties managing the side effects. He was also taking medication for other conditions, including
diabetes mellitus, cardiomyopathy, hypertension and hyperlipidema, and was found by his
physician to be morbidly obese. While there
was some dispute whether he was physically
capable of performing his job, which involved
sitting and dealing with papers (he was a traffic
manager for an industrial company), the court
found that the defendant insurance company
had presented no evidence to contradict the expert medical testimony showing that Hippe’s
mental state disabled him from working.
Federal — Minnesota — U.S. District Judge
Patrick J. Schiltz rejected a Privacy Act Claim
brought by a John Doe employee plaintiff of the
U.S. Department of Veterans Affairs against the
agency and its director premised on unlawful
disclosure of his HIV-status to his union representative. Doe v. Department of Veterans Affairs,
2007 WL 313595 (D. Minn., Jan. 31, 2007).
Doe had confided in a doctor who worked parttime in the office that provides health care services to department employees that he was
HIV+, but claims he asked the doctor not to reveal this information to the union representative, who was coming to a meeting with Doe and
the doctor in order to discuss Doe’s attendance
problems. But the doctor blurted out the information. The court held that Privacy Act protection does not extend to information the doctor
learned directly from the employee, as opposed
to information the doctor learned or later recorded in a medical record. In light of the peculiar wording of the statute, found Judge Schiltz,
the 8th Circuit has construed it to protect only
information obtained from government records.
Schiltz said that the doctor could announce
Doe’s HIV status in the employee cafeteria
while standing on a chair holding a megaphone
and he would not be in violation of the Act. The
court expressed the hope that the 8th Circuit
would rethink its construction of the statute,
perhaps in the context of an appeal of this case.
Federal — North Carolina — In Gantt-El v.
Smith, 2007 WL 491844 (W.D.N.C., Feb. 12,
2007), pro se prisoner litigation, District Judge
Graham C. Mullen, exercising the screening
function on pro se prisoner suits, dismissed a
complaint in which a state prisoner complained
about being denied his medications for, inter
alia, HIV infection. It appeared from the papers
that the issue was not outright denial of medication but rather negligence on the part of the hospital in not keeping enough of the medication
on hand so that the prisoner would have an uninterrupted supply. He had been advised to order his medication at least ten days in advance.
Following binding precedent, Judge Mullen
noted that prisoners may not bring 8th Amendment claims based on negligence, but must
show deliberate indifference by the prison to
state a claim.
58
Federal — Ohio — The court rejected a constitutional civil rights action by Jesus Baez, a
federal prisoner who was protesting job assignments within the prison, claiming that he was
discriminated against in such assignments because he was HIV+. Baez v. Bezy, 2007 WL
539219 (N.D. Ohio, Feb. 15, 2007). U.S. District Judge John R. Adams found that most of
the named defendants had no direct connection
to the case. More importantly, however, wrote
Adams, “Furthermore, a prisoner has no constitutional right to prison employment or a particular prison job,” thus undermining any due
process claim. “Mr. Baez also asserts that the
defendants have discriminated against him because of his HIV status.” After finding little evidence of discrimination, Adams commented
that “HIV-infected inmates do not constitute a
suspect class that is entitled to special consideration under the Equal Protection Clause.”
Adams also held that loss of a particular employment opportunity in a prison is not a cruel
and unusual punishment under the 8th Amendment.
Federal — Wisconsin — An HIV+ inmate’s
privacy rights in medical information are not
violated by implementation of a prison security
rule that inmates who are kept in segregation
must be accompanied by guards at all times
when away from their cells, including during
medical appointments at which guards will
overhear all conversation between the inmate
and the health care worker and thus become informed of the inmate’s HIV status. Simpson v.
Joseph, 2007 WL 433097 (E.D. Wis., Feb. 5,
2007). District Judge J.P. Stadtmueller noted
evidence that all guards were trained about
confidentiality requirements, and that the
plaintiff had not alleged any specific incidents
where a guard had improperly divulged
health-related information. The plaintiff had
merely alleged that his confidentiality was violated when the guard refused to let him meet
privately with the health care worker, thus his
allegation that confidentiality was breached
was entirely speculative.
Indiana — Rejecting the appeal of a civil
commitment, the Court of Appeals of Indiana
found in Matter of the Commitment of A.W.D.,
2007 WL 602432 (Feb. 28, 2007), that an
March 2007
HIV+ 52–year-old man whose schizophrenia
and medical problems required constant medical attention should continue to be confined,
not least because he was sexually active and
seemed incapable of understanding about the
need to use condoms and to disclose his condition to sexual partners.
Louisiana — Rejecting the appeal of a manslaughter conviction, the Court of Appeal of
Louisiana, 2nd Circuit, rejected the notion that
a man whose apartment had been robbed was
justified in shooting the man he suspected of
being the robber several days later, just because
the man was HIV+. State of Louisiana v.
Lathan, 2007 WL 602320 (Feb. 28, 2007). Mr.
Lathan stated that he feared dealing with the
victim other than by shooting for fear the victim
would transmit HIV to him, and in appealing
his conviction argued that the trial court erred
in excluding evidence about the HIV status of
the victim. Judge Sexton, writing for the court
that upheld the manslaughter conviction, related that the trial court “noted that the law
does not give people the right to kill over theft
and that it was concerned that Defendant appeared to think his actions were justified simply because the victim was HIV positive and
under the influence of cocaine.”
Missouri — The Missouri Court of Appeals,
Eastern District, upheld the conviction of Ronald Newlon on two counts of exposing other persons to HIV without their knowledge and consent. State v. Newlon, 2007 WL 445961 (Feb.
13, 2007). Newlon was counseled pursuant to a
positive HIV test in 1998, and advised of his legal duty to disclose his status to sexual partners. In 2003 he had sexual relationships with
two women, both of whom testified that he had
not informed them of his HIV status, which they
learned independently. Newlon had used a condom with both women, however with one he
stopped using a condom as their dating relationship continued. On appeal Newlon raised
constitutional objections to the Missouri statute
which states that use of a condom does not relieve a person of responsibility for his actions,
and to the charge made to the jury, which he
claim improperly shifted the burden of proof.
The court rejected both objections, and upheld
Lesbian/Gay Law Notes
his sentence of ten years on each count, to be
served concurrrerntly.
Pennsylvania — The AIDS Panic stuff continues.... In Commonwealth v. Harriott, 2007
WL 416419 (Pa. Superior Ct., Feb. 8, 2007),
the appeals court ruled that the trial court’s imposition on defendant of a restitutionary award
to reimburse the insurer that paid for blood
tests for police officers fearful of contracting
HIV after she spit at them was lawful. Sorry,
that’s a long sentence! Lesa Harriott was
stopped and arrested for driving under the influence of alcohol. She was taken to the hospital
for testing, and while there spat at the arresting
officers who accompanied her. She was subsequently convicted on several counts, and as
part of her sentence ordered to pay the costs of
HIV testing for the officers. On appeal, she
pointed out the unlikelihood that they would
contract HIV from her spitting, and claimed
that the spitting did not arise out of the acts for
which she was convicted. The court brushed
aside the second argument as irrelevant, and
commented as to the first: “Lastly, Appellants
claim that the officers suffered no loss is frivolous. The officers needed to have precautionary
HIV and hepatitis tests because Appellant spit
on them while they were at the hospital for her
blood alcohol testing. Some of her spit landed
in or near the eye and/or mouth of at least one of
the officers.” It is ludicrous to contend that HIV
would be spread in this way, but we’re less sure
about hepatitis, which is much more contagious. A.S.L.
Mexican Court Ends Ban on HIV+ Military
Personnel
Reuters reported on February 27 that Mexico’s
Supreme Court has ordered the armed forces to
cease discrimination against HIV-positive officers, an declared unconstitutional a law requiring that naval officers and soldiers infected
with HIV must be separated from the service.
According to the report, the court’s president,
Guillermo Ortiz Mayagoitia, stated: “Everyone
who viewed this law as unconstitutional has
shown that it violates the rules of equality” in
the Mexican Constitution. According to the
news report, about 300 individuals had been
dismissed from the military under the challenged law, eleven of whom brought this case to
the Supreme Court. A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
Movement Positions
Lambda Legal is accepting applications for a
staff attorney position in its New York headquarters office. The position involves working
on cases that arise in the mid-Atlantic area
served by the national office on a regional basis.
Applicants should have at least four years of
law practice experience, including litigation
experience that would prepare the applicant to
do law reform litigation. The position will also
involve public education and public speaking
activities, and requires a person of good judgment who can operate with a fair degree of independence and initiative. Lambda offers excellent benefits and is an equal opportunity
employer. Resumes, writing samples and letters of interest should be send by March 15,
2007, either be snail-mail, fax or email, to Gary
Brubaker, HDQ Staff Attorney Position,
Lambda Legal, 120 Wall Street, Suite 1500,
New York NY 10005–3904; fax
212–809–0055; [email protected].
Lesbian/Gay Law Notes
No phone inquiries will be accepted; questions
should be directed to Mr. Brubaker by email.
The New York Civil Liberties Union is accepting applications for two positions: Director
of the Reproductive Rights Project and a staff
attorney position dealing mainly with LGBT issues. Both positions were posted early in February, and interviews will begin during March, so
those interested should not delay in getting
their applications in. The director position has
supervisory responsibilities and assumes at
least 5 years of litigation practice experience,
management and fundraising experience. The
staff attorney position requires at least two
years of experience as a full-time attorney engaged in litigation and/or legal-based advocacy
and New York bar admission. Applicants for the
Director position should send by regular mail or
fax a letter of interest, resume, and recent legal
writing sample to NYCLU, Box RRP Director,
125 Broad Street, 19th Floor, New York, NY
10004; Fax 212–607–3318, or be e-mail to
[email protected] (with RRP Director in the subject line). Applicants for the staff attorney position should send by regular mail or fax or email
a letter of interest and a resume, but the address
or subject line heading for an email should say
Attorney Hiring Committee and “staff attorney.” Details can be found on the NYCLU’s
website.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Adams, Mike S., and Reid C. Toth, The Unanticipated Consequences of Hate Crime Legislation, 90 Judicature No. 3, 129 (Nov-Dec 2006).
Alexander, Larry, Compelled Speech, 23 Constitutional Commentary 147 (Summer 2006).
Bitton, Yifat, The Limits of Equality and the
Virtues of Discrimination, 2 Mich. St. L. Rev.
593 (Fall 2006).
Boellstorff, Tom, Domesticating Islam: Sexuality, Gender, and the Limits of Pluralism, 31 L.
& Soc. Inquiry 1035 (Fall 2006).
Borgmann, Jota, Hunting Expeditions: Perverting Substantive Due Process and Undermining Sexual Privacy in the Pursuit of Moral Trophy Game, 15 UCLA Women’s L.J. 171 (Fall
2006) (adverse commentary on the 11th Circuit’s dildo jurisprudence — see report on the
new opinion in the saga of the Williams case,
above).
Brown, Rebecca L., The Logic of Majority
Rule, 9 U. Pa. J. Const. L. 23 (October 2006).
Brower, Todd, Pride and Prejudice: Results of
an Empirical Study of Sexual Orientation Fairness in the Courts of England and Wales, 13
Buffalo Women’s L.J. 17 (2004–2005).
Charles, Casey, Panic in The Project: Critical Queer Studies and the Matthew Shepard
Murder, 18 L. & Lit. 225 (Summer 2006).
Chatlani, Hema, In Defense of Marriage:
Why Same-Sex Marriage Will Not Lead Us
Down a Slippery Slope Toward the Legalization
March 2007
of Polygamy, 6 Appalachian J.L. 101 (Winter
2006).
Cook, Jennifer, Shaken From Her Pedestal: A
Decade of New York City’s Sex Industry Under
Siege, 9 N.Y.C. L. Rev. 121 (Winter 2005).
Cook, Richard, Kansas’s Defense of Marriage
Amendment: The Problematic Consequences of
a Blanket Nonrecognition Rule on Kansas Law,
54 U. Kan. L. Rev. 1165 (May 2006).
DeBraux, Jerita L., Prison Rape: Have We
Done Enough? A Deep Look Into the Adequacy
of the Prison Rape Elimination Act, 50 Howard
L. J. 203 (Fall 2006).
Decker, Marla G., and Stephen R.
McCullough, Criminal Law and Procedure, 41
U. Rich. L. Rev. 83 (Annual Survey Issue 2006)
(notes continuing tension of Virginia sex crimes
laws with Lawrence).
Duncan, William C., Portrait of an Institution: How Recent Cases Distort Our Understanding of Marriage, 50 Howard L.J. 95 (Fall
2006) (the propaganda campaign against
same-sex marriage continues....)
Eidsmoe, John, The Article III Exceptions
Clause: Any Exceptions to the Power of Congress
to Make Exceptions?, 19 Regent U. L. Rev. 95
(2006/7).
Ezer, Nicole Lawrence, The Intersection of
Immigration Law and Family Law, 40 Fam. L.
Q. 339 (Fall 2006).
Falcone, Anthony Edward, Law and Limits:
How Categories Construct Constitutional
Meaning, 8 U. Pa. J. Const. L. 1005 (September
2006).
Feldblum, Chai R., Moral Conflict and Liberty: Gay Rights and Religion, 72 Brook. L.
Rev. 61 (Fall 2006).
Finkin, Matthew W., Shoring Up the Citadel
(At-Will Employment), 24 Hofstra Lab. & Emp.
L. J. 1 (Fall 2006).
Fletcher, Matthew L.M., Same-Sex Marriage, Indian Tribes, and the Constitution, 61 U.
Miami L. Rev. 53 (Oct. 2006).
Galston, William A., Families, Associations,
and Political Pluralism, 75 Fordham L. Rev.
815 (Nov. 2006).
Garcia, Belkys, Reimagining the Right to
Commercial Sex: The Impact of Lawrence v.
Texas on Prostitution Statutes, 9 N.Y.C. L. Rev.
161 (Winter 2005).
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).
Girard, Kate, The Irrational Legacy of Romer v. Evans: A Decade of Judicial Review Reveals the Need for Heightened Scrutiny of Legislation That Denies Equal Protection to Members
of the Gay Community, 36 New Mex. L. Rev.
565 (Summer 2006).
Goldberg, Steven, Beyond Coercion: Justice
Kennedy’s Aversion to Animus, 8 U. Pa. J. Const.
L. 801 (August 2006).
59
Goldman, Lee, The Constitutional Right to
Privacy, 84 Denv. U. L. Rev. 601 (2006).
Gray, Rory Thomas, Academic Freedom on
the Rack: Stretching Academic Freedom Beyond
Its Constitutional Limits in Fair v. Rumsfeld, 63
Wash. & Lee L. Rev. 1131 (Summer 2006).
Haines, Justin L., Fear of the Queer Marriage: The Nexus of Transsexual Marriages and
U.S. Immigration Law, 9 N.Y.C. L. Rev. 209
(Winter 2005).
Hamilton, Vivian, Principles of U.S. Family
Law, 75 Fordham L. Rev. 31 (Oct. 2006).
Harada, Nikko, Trans-Literacy Within
Eighth Amendment Jurisprudence: De/Fusing
Gender and Sex, 36 New Mex. L. Rev. 627
(Summer 2006).
Howard, Robert M., Scott E. Graves, and
Julianne Flowers, State Courts, the U.S. Supreme Court, and the Protection of Civil Liberties, 40 L. & Soc’y Rev. 845 (Dec. 2006).
Hume, Robert J., The Use of Rhetorical
Sources by the U.S. Supreme Court, 40 L. &
Soc’y Rev. 817 (Dec. 2006).
Inlender, Talia, The Imperfect Legacy of
Gomez v. INS: Using Social Perceptions to Adjudicate Social Group Claims, 20 Georgetown
Imm. L. J. 681 (Summer 2006).
Jacobi, Jeffrey S., Two Spirits, Two Eras,
Same Sex: For a Traditionalist Perspective on
Native American Tribal Same-Sex Marriage
Policy, 39 U. Mich. J.L. Reform 823 (Summer
2006).
Jacobs, Melanie B., My Two Dads: Disaggregating Biological and Social Paternity, 38 Arizona St. L.J. 809 (Fall 2006).
Kalscheur, Gregory, S.J., Moral Limits on
Morals Legislation: Lessons for U.S. Constitutional Law from the Declaration of Religious
Freedom, 16 S. Cal. Interdisc. L.J. 1 (Fall 2006).
Koppelman, Andrew, Why Antidiscrimination Protections for Gay People Should Have Religious Exemptions, 72 Brook. L. Rev. 125 (Fall
2006).
Kostoulas, Evangelos, Ask, Tell, and Be
Merry: The Constitutionality of “Don’t Ask,
Don’t Tell” Following Lawrence v. Texas and
United States v. Marcum, 9 U. Pa. J. Const. L.
565 (Jan. 2007).
Kreimer, Seth F., Rejecting “Uncontrolled
Authority Over the Body”: The Decencies of
Civilized Conduct, The Past and the Future of
Unenumerated Rights, 9 U. Pa. J. Const. L. 423
(Jan. 2007).
La Vita, Maria A., When the Honeymoon is
Over: How a Federal Court’s Denial of the
Spousal Privilege to a Legally Married SameSex Couple Can Result in the Incarceration of a
Spouse who Refuses to Adversely Testify, 33 New
Eng. J. On Crim. & Civ. Confinement 243 (Winter 2007).
Lewis, Marion T.D., Equitable Paternity:
‘Shondel’ and Same-Sex Couples, NYLJ, Feb.
13, 2006, p. 4 (argues that under NY Court of
Appeals decision in Shondel J. v. Mark D., 7
60
N.Y.3d 320 [2006], LGBT co-parents should
be able to use equitable estoppel arguments to
maintain parental ties through visitation with
children they have been raising prior to splitting up with the child’s legal parent).
Little, Charles Thomas, Transsexuals and the
Family Medical Leave Act, 24 J. Marshall J.
Computer & Info. L. 315 (Winter 2006).
MacDermot, Therese, Bullying and Harassment in the Workplace, 11 East West Rev. Lab.
L. & Soc. Pol’y 1 (2006).
McClain, Linda C., Family Constitutions and
the (New) Constitution of the Family, 75 Fordham L. Rev. 833 (Nov. 2006).
Meyers, Peter A., and Joshua OsborneKlein, Trading the Privacy Right: Justice Alito’s
Dangerous Reasoning on Privacy Rights, 5 Seattle J. For Soc. Just. 373 (Fall/Winter 2006).
Miller, Jeremy M., The Potential for an Equal
Protection Revolution, 25 QLR 287 (2006).
Mitchell, Gregory, and Philip E. Tetlock, Antidiscrimination Law and the Perils of Mindreading, 67 Ohio St. L. J. 1023 (2006).
Morey, Maribel, The Civil Commitment of
State-Dependent Minors: Resonating Discourses That Leave Her Heterosexuality and His
Homosexuality Vulnerable to Scrutiny, 81 NYU
L. Rev. 2129 (Dec. 2006).
Pull, Joseph, Questioning the Fundamental
Right to Marry, 90 Marquette L. Rev. 21 (Fall
2006).
Schachter, Jane S., Unenumerated Democracy: Lessons From the Right to Vote, 9 U. Pa. J.
Const. L. 457 (Jan. 2007).
Secunda, Paul M., The (Neglected) Importance of Being Lawrence: The Constitutionalization of Public Employee Rights to Decisional
Non-Interference in Private Affairs, 40 U.C.
Davis L. Rev. 85 (November 2006).
Shepherd, Robert E., Jr., Family and Juvenile
Law, 41 U. Rich. L. Rev. 151 (Annual Survey
Issue 2006) (speculates on impact of Virginia
Marriage Amendment).
Simson, Gary J., Beyond Interstate Recognition in the Same-Sex Marriage Debate, 40 U.C.
Davis L. Rev. 313 (Dec. 2006).
Smith, Steven D., Is the Harm Principle Illiberal?, 51 Am. J. Juris. 1 (2006).
Smyth, Michael A., Queers and Provocateurs:
Hegemony, Ideology, and the “Homosexual Advance” Defense, 40 L. & Soc’y Rev. 903 (Dec.
2006).
Solum, Lawrence B., The Supreme Court in
Bondage: Constitutional Stare Decisis, Legal
Formalism, and the Future of Unenumerated
Rights, 9 U. Pa. J. Const. L. 155 (October
2006).
March 2007
Summers, Jo, and Jenny Chase, Civil Partnership’s First Year, 36 Fam. L. (UK) 1077 (Dec.
2006).
Tarzwell, Sydney, The Gender Lines are
Marked with Razor Wire: Addressing State
Prison Policies and Practices for the Management of Transgender Prisoners, 38 Columbia
Hum. Rts. L. Rev. 167 (Fall 2006).
Tribe, Laurence H., Reflections on Unenumerated Rights, 9 U. Pa. J. Const. L. 483 (Jan.
2007).
Tushnet, Mark, Can You Watch Unenumerated Rights Drift?, 9 U. Pa. J. Const. L. 209 (October 2006).
Tushnet, Mark, Referring to Foreign Law in
Constitutional Interpretation: An Episode in the
Culture Wars, 35 U. Balt. L. Rev. 299 (Spring
2006).
Wald, Michael S., Adults’ Sexual Orientation
and State Determinations Regarding Placement of Children, 40 Fam. L. Q. 381 (Fall
2006).
Williamson, Erica, Moving Past Hippies and
Harassment: A Historical Approach to Sex, Appearance, and the Workplace, 56 Duke L.J. 681
(Nov. 2006).
Zgonjanin, Sanja, Quoting the Bible: The Use
of Religious References in Judicial DecisionMaking, 9 N.Y.C. L. Rev. 31 (Winter 2005).
Specially Noted:
A memorial tribute to Nathaniel Gates, a gay
professor at Cardozo Law School, who died
quite prematurely from cancer, can be found in
the December 2006 issue of the Cardozo Law
Review, which is dedicated to his memory.
ThomsonWest has announced a new addition
to its American Casebook Series: Sexual Identity Law in Context, Cases and Materials, by
Shannon Gilreach of Wake Forest University
Law School, to be published on March 15,
2007.
The
ISBN
number
is
978–0314–17618–9, which should be referred
to in any inquiries about the book addressed to
[email protected]. Review copies will automatically be sent to full-time law
teachers who are known to West to be teaching
relevant courses.
Vol. 15, No. 1 (Oct. 2006) of the William &
Mary Bill of Rights Journal is devoted to a symposium titled Religion, Division, and the Constitution.
AIDS & RELATED LEGAL ISSUES:
Baker, Brook K., Teaching Legal Skills in South
Africa: A Transition from Cross-Cultural Col-
Lesbian/Gay Law Notes
laboration to International HIV/AIDS Solidarity, 9 Legal Writing 145 (2003).
Bloch, Frank S., Medical Proof, Social Policy,
and Social Security’s Medically Centered Definition of Disability, 92 Cornell L. Rev. 189 (Jan.
2007).
Brunsden, Andrew, Hepatitis C in Prisons:
Evolving Toward Decency Through Adequate
Medical Care and Public Health Reform, 54
UCLA L. Rev. 465 (Dec. 2006).
Leiter, Karen, Voravit Suwanvanichkij, Ingrid Tamm, Vincent Iacopino, and Chris Beyrer,
Human Rights Abuses and Vulnerability to
HIV/AIDS: The Experiences of Burmese Women
in Thailand, 9 Health & Hum. Rts. No. 2, 88
(2006).
Lucan, Jarad M., Applying the Americans
with Disabilities Act: Why Giving Traditional
Reasonable Accommodation to “Regarded As”
Disabled Individuals Brings About “Bizarre Results,” 25 QLR 417 (2006).
Parrot, Sarah J., The ADA and Reasonable Accommodation of Employees Regarded as Disabled: Statutory Fact or Bizarre Fiction?, 67
Ohio St. L. J. 1495 (2006).
Pollard, Deana A., Sex Torts, 91 Minn. L. Rev.
769 (Feb. 2007) (argues that tort law should extend strict liability to transmission of STDs,
which are now treated under a negligence standard in most jurisdictions).
Teti, Michelle, Mariana Chilton, Linda
Lloyd, and Susan Rubinstein, Identifying the
Links Between Violence Against Women and
HIV/AIDS: Ecosocial and Human Rights
Frameworks Offer Insight Into U.S. Prevention
Policies, 9 Health & Hum. Rts. No. 2, 40
(2006).
Weiss, Amanda, Criminalizing Consensual
Transmission of HIV, 2006 U. Chi. Legal F. 389
(2006).
EDITOR’S NOTE:
Corrections: One of our new contributing writers was incorrectly listed in the masthead of the
February 2007 issue. He is Chris Benecke, a
Cardozo Law School Student, Class of 2008.
Also in the February issue, we misidentified the
state represented by U.S. Senator Gordon
Smith. It is Oregon, not Washington. ••• 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.