WASHINGTON SUPREME COURT RULES AGAINST MARRIAGE FOR SAME-SEX COUPLES

September 2006
WASHINGTON SUPREME COURT RULES AGAINST MARRIAGE FOR SAME-SEX COUPLES
Ending more than fifteen months of suspense,
the Washington Supreme Court issued its decision in Andersen v. King County, 138 P.3d 963,
on July 26, rejecting a constitutional challenge
to the state’s Defense of Marriage Act by a vote
of 5–4. The majority of the court spawned three
decisions, none of which commanded the support of the full majority, and there were three
dissenting opinions, one signed by all the dissenters and others reflecting varied disagreements with the majority of the court. The bottom
line, however, was clear: the Washington Supreme Court would not order the state to let
same-sex couples marry.
The plurality and concurring opinions,
adopting many arguments familiar from similar
decisions by appellate courts in New York and
Indiana, declared that it was “rational” for the
state to use marriage as a way to encourage heterosexual procreation in the context of traditional families. Indeed, the opinion concurring
in the result went further, finding that the state
had a “compelling” justification to restrict marriage to opposite-sex couples.
Justice Barbara Madsen wrote for a plurality
of three judges, joined by Chief Justice Gerry L.
Alexander and Associate Chief Justice Charles
W. Johnson. In a separate opinion “concurring
in the judgement,” Justice James M. Johnson
wrote for himself and Justice Richard B. Sanders. The Chief Justice also wrote a brief separate opinion of no substance, just “going on record,” apparently, and expressing some
disapproval of the sheer volume of judicial writing generated by the case.
All four dissenters jointed in an opinion by
Justice Mary E. Fairhurst, but Justice Tom
Chambers, joined by Justice Susan Owens,
wrote separately to address one particular point
of contention, and Justice Bobbe J. Bridge,
writing for herself, focused on the blatant antigay animus of DOMA.
Many had predicted that the Washington
opinion would turn out the other way, not least
because two different trial judges had ruled in
favor of the plaintiffs, finding either that a fundamental right was at stake or that excluding
gay people from the right to marry involved a
constitutionally suspect classification, but the
LESBIAN/GAY LAW NOTES
final decision seems to have come down to
sharply contrasting views about the proper role
of the court in resolving a contentious issue of
public policy.
Justice Madsen’s opinion seems surprisingly
apologetic, stating over and over that the court’s
role in reviewing challenged statutes should
normally be very deferential to legislative policy judgments. In addition, Madsen stressed
more than once that the plaintiffs had asked not
for equality with respect to the legal rights,
benefits and obligations of marriage, but for
marriage itself, broadly hinting that had the
case been litigated along the lines of the 1999
Vermont marriage case,Baker v. State, 744 A.2d
864, the result might have been a ruling requiring the state to adopt some form of civil union or
domestic partnership, assuming one would
then be cumulating the votes of at least some of
the plurality with the votes of the dissenters.
As Justice Madsen characterized the question before the court, it was whether there was
some rational basis for the state to extend the
right to marry to opposite-sex couples. She
reached this question after extensive discussion of why this case did not involve either a
fundamental right or a “suspect class.” (The
lack of sophistication of the equal protection
discussion is quite striking, as both the plurality and the concurrence persist in speaking of
“suspect class” when the appropriate formulation for discussing the equal protection question is “suspect classification.”) In essence, the
fundamental right argument boiled down to the
assertion that all the U.S. Supreme Court decisions that might be claimed to identify the right
to marry as fundamental were rendered in the
context of heterosexual couples, and should be
confined to their facts. The “suspect class”
analysis turned on the court’s assertion that gay
people are politically powerful in Washington
because they recently won a law against discrimination after a struggle of decades (by the
narrowest of margins in one house of the legislature) and thus do not need the protection of
the courts from legislative majorities, as well as
an assertion that it is not yet proved that sexual
orientation is immutable, which the court
treated as a prerequisite to strict scrutiny, going
September 2006
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: Alan J. Jacobs, Esq., NYC; Bryan Johnson, NYLS ‘08; Sharon McGowan, Esq., NYC; Tara Scavo, Esq., NYC; Jeff Slutzky, Esq., NYC; Ruth
Uselton, NYLS ‘08; Robert Wintemute, Esq., King’s College, London, England; Leo Wong, Esq., NYC; Eric Wursthorn, NYLS ‘08.
Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212–353–9118; e-mail: [email protected]. Inquire for rates.
LeGaL Homepage: http://www.le-gal.org
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©2006 by the LeGaL Foundation of the LGBT Law Association of Greater NY
ISSN 8755–9021
well beyond any requirements of federal constitutional law.
Madsen’s discussion of the rational basis issue emphasized the long history of marriage as
a heterosexual institution, regardless of the
many ways it has evolved in particular features,
the extremely deferential nature of rational basis review (which appears quite exaggeratedly
deferential in her account), and the central role
she identified for procreation and child-rearing
in reviewing Supreme Court decisions touching
on the importance and centrality of marriage.
As part of this discussion, Madsen alluded to
the “chanelling procreation” argument articulated in the New York and Indiana marriage rulings, but did not emphasize it. Instead, invoking the limited role for judicial review in cases
that do not involve a fundamental right or a suspect classification, she focused most of her discussion on supporting the conclusion that there
is no fundamental right of “same-sex marriage”
and that gay people are not a “suspect class,”
and that the legislators could rationally believe
that children are better off raised by
traditionally-married opposite-sex couples.
How excluding gay people from marriage would
advance the goal of encouraging heterosexual
couples to conceive and raise children within
traditional marriages was not explained.
Justice Fairhurst’s lead dissent, similar to the
dissent by New York Chief Judge Judith Kaye a
few weeks ago, criticized the plurality (and
concurrence) for asking the wrong questions.
For one thing, said Fairhurst, the question is not
whether there is a fundamental right to “samesex marriage” but rather where there is a “right
to marry.” But, more importantly, Fairhurst
pointed out that the state interests that Madsen
identified were not rationally furthered by excluding same-sex couples from marriage. To the
dissenters, the issue was not whether the government might have a rational basis for wanting
to encourage opposite-sex couples to marry, but
rather whether the government had a rational
basis for excluding same-sex couples from marrying. And, as had Judge Kaye, Madsen emphasized that denying marriage to same-sex
couples particularly disadvantages the children they are raising, while doing nothing to advance the goal of encouraging heterosexual
couples to marry.
Justice Johnson’s concurrence showed none
of the hesitance or reluctance that might be
teased out of Madsen’s opinion. In strongly affirmative prose, Johnson sharply criticized the
trial judges for writing opinions that he called
“transparently result-oriented,” and contributed, in language more stark than Madsen’s, his
view that the state DOMA did not discriminate
158
because “under DOMA every adult has the
ability to marry a person of the opposite sex…
No inquiry is made into their sexual orientation.
It cannot be said that an individual with a homosexual orientation is deprived of the ability
to enter a state-recognized marriage, absent an
a priori redefinition of marriage.” Such remarks
always remind this writer of Supreme Court
Justice Oliver Wendell Holmes’s famous statement that the law in its majesty equally forbids
the wealthy and beggars from sleeping under
bridges, as exemplary of the concept of equal
protection of the laws. Justice Johnson went beyond Madsen’s rationality analysis to assert
that the state has compelling reasons for privileging opposite-sex couples, and that this is
really about preserving the future of the human
species.
Justice Chambers’s dissent was mainly concerned with what would strike some as a technical side-issue of Washington state constitutional law, the appropriate interpretation of the
state constitution’s privileges and immunities
clause, which had provided one of the theories
advanced by the plaintiffs. In the plurality
opinion, Justice Madsen had invoked past
cases to rule that this clause was only relevant
to analyzing situations where the legislature
had conferred some special privilege upon a
minority of the citizens, which the clause forbids, and thus the plaintiffs could not argue that
letting opposite-sex couples marry while denying that right to same-sex couples was a violation of this provision, since the “privilege” had
been conferred on a majority. This interpretation was contrary to the way Oregon has interpreted its similar constitutional provision, upon
which the Washington provision was based.
Madsen justified the different approach by
pointing to a different history of the provision’s
adoption in Washington, including discussions
in the 19th century constitutional convention at
which the provision was framed. Chambers disputed this approach, and contended at length
that the meaning of the privileges and immuni-
September 2006
ties clause should be broad enough to encompass this case. The right to marry is a privilege,
he argued, that should be made equally available to all the state’s citizens.
Judge Bridge’s dissent is the most emotionally satisfying to read, because she takes the
gloves off and addresses in blunt language the
issue that nobody else will talk about — that
DOMA was adopted in an atmosphere of blatant anti-gay animus and religious and moralistic sentiment on the part of many of its legislative supporters, and that encouraging
opposite-sex couples to procreate within traditional family units had nothing to do with this
legislation. But she was a lonely voice in dissent, although Justice Fairhurst did allude to
this history in her lead dissenting opinion.
As the ruling was premised solely on the
state constitution, the Washington Supreme
Court’s decision is final and non-appealable,
except, of course, to the political process (although the chief justice strangely asserted, during an interview with a gay judicial screening
panel the day after the decision was issued, that
he would be astonished if the court did not receive a motion for reconsideration, and used
that as a basis for saying he could not comment
substantively about the case). Madsen made
the point repeatedly that the court was not passing on the wisdom of DOMA, and she concluded her opinion with a strong intimation that
the legislature should get busy providing some
equality for same-sex couples. In his concurrence, the chief justice pointed out that nothing
in the opinion stood in the way of the legislature
opening up marriage to same-sex couples.
“All parties agree that the legislature has the
authority to define marriage within constitutional limits,” Madsen wrote. “However,” she
continued, “we note that the record is replete
with examples as to how the definition of marriage negatively impacts gay and lesbian couples and their children. The plaintiffs and their
amici have clearly demonstrated that many
day-to-day decisions that are routine for mar-
Lesbian/Gay Law Notes
ried couples are more complex, more agonizing, and more costly for same-sex couples, unlike married couples who automatically have
the advantages and rights provided to them in a
myriad of laws and policies… There may be
‘more just and humane’ ways to further the
State’s interests, but the State has met its burden in demonstrating that DOMA meets the
minimum scrutiny required by the constitution.
However, given the clear hardship faced by
same sex couples evidenced in this lawsuit, the
legislature may want to reexamine the impact of
the marriage laws on all citizens of this state.”
However, it seemed unlikely that the legislature would take up the challenge any time soon.
The anti-discrimination law passed after a major struggle with a razor-thin margin in one
house, and same-sex marriage would undoubtedly be a much harder sell. However, local
newspapers reported that legislative supporters
were poised to introduce bills in the next session on both civil unions and same-sex marriage.
Meanwhile, on Aug. 29 Lambda Legal and
the ACLU announced that a petition for reconsideration had been filed with the court, after an
extension of time was granted beyond the usual
short deadline for such petitions. Criticizing the
court’s opinion, Lambda’s Legal Director, Jon
Davidson, observed, “Instead of explaining
why our clients couldn’t marry, the court told us
why marriage is good for different-sex couples.
Barring same-sex couples from marriage only
hurts same-sex couples and their families, it
doesn’t help anyone.”
Listing all the counsel involved with the two
lawsuits that were consolidated into this case
would take far more room than we can spare in
this newsletter, but we note that there were numerous amicus briefs on both sides of the cases,
and that the LGBT national public interest law
firms were well represented among counsel for
the plaintiffs. This case clearly turned on political calculation and broad theories of judicial
review and separation of powers as much as on
any fine analysis of substantive due process or
equal protection. A.S.L.
LESBIAN/GAY LEGAL NEWS
Vermont Supreme Court Asserts Primary
Jurisdiction in Interstate Custody Dispute
Involving Same-Sex Couple
In the first major appellate gay parenting decision to consider the interstate effect of a civil
union, the Vermont Supreme Court unanimously declared in Miller-Jenkins v. MillerJenkins, 2006 VT 78, 2006 WL 2192715
(August 4, 2006), that a former civil union partner was the parent of a child born to her partner
through donor insemination, and that the Virginia courts did not have jurisdiction to quash
the co-parent’s visitation rights just because
the birth mother and child had reestablished
residency in Virginia.
The complex visitation dispute between Lisa
and Janet Miller-Jenkins is not finally resolved
by this ruling, as Lisa’s case is pending before
the Virginia Court of Appeals, and it is unclear
whether Virginia courts would enforce a Vermont court visitation order.
Lisa and Janet, then residents of Virginia,
went to Vermont in December 2000 to have a
civil union ceremony, and then returned to their
home in Virginia. The next year, Lisa became
pregnant through donor insemination, and she
bore their child, referred to in Justice John
Dooley’s opinion as IMJ, in April 2002. They
continued to live together as a family in Virginia
until IMJ was four months old, and then moved
together to Vermont, but a year later decided to
separate, and Lisa moved back to Virginia with
IMJ.
Lisa filed a petition in the Rutland, Vermont,
Family Court to dissolve the civil union, listing
IMJ as the “biological or adoptive child of the
civil union,” and requesting that the court
award her custody with Janet having visitation
rights. The court did make such an award on a
temporary basis, pending a final resolution of
the case, but Janet only had one visit with the
Lesbian/Gay Law Notes
child, early in June 2004. Since then, Lisa has
prevented Janet from having any contact, even
though the Vermont Family Court found her in
contempt for defying its temporary visitation order.
At present there are two lawsuits pending. In
the Virginia courts, Lisa has been successful in
getting a trial judge to declare that Virginia
does not recognize any relationship between
Janet and the child, a decision that Janet has
appealed. In the Vermont courts, as the state
supreme court made clear on August 4, Janet
has been declared a parent of the child, entitled
to exercise visitation rights in the best interest
of the child, and the Supreme Court upheld the
Family Court’s contempt order against Lisa.
The problem with all this, of course, is that
Janet will only get to exercise that visitation
right if Lisa suddenly becomes cooperative, or
if the Virginia courts decide to accord full faith
and credit to the order. Lisa argued that because
both women were residents of Virginia when
they went to Vermont to be civilly united, their
Vermont civil union was invalid, since they had
no intention at that time of living in Vermont.
Justice Dooley decisively rejected this argument, finding that there is no residency requirement for a Vermont civil union, and that a
contrary ruling would be contrary to the intent
of the legislature in passing the Civil Union Act.
Janet argued that as a result of the federal
Defense of Marriage Act, taken together with a
Virginia mini-DOMA statute that forbids any
recognition of same-sex relationships (including civil unions), Virginia is free to refuse to enforce any Vermont visitation order that relies on
her past civil union with Janet as a basis for parental rights. Dooley found this argument irrelevant to the question pending before the Vermont Supreme Court, which was whether there
was any ground to overturn the Vermont Family
Court’s visitation and contempt orders. Having
found that Vermont courts had jurisdiction of
the case, which Lisa had filed at a time when
Janet was still a legal resident of Vermont, and
that Lisa had deliberately violated the Family
Court’s visitation order, the court saw no
grounds for a reversal.
Janet is represented by Gay and Lesbian Advocates and Defenders, the Boston-based New
England public interest law firm, and its cooperating attorney in Vermont, Theodore A. Parisi
of Castleton. They are hopeful that the very detailed Vermont Supreme Court opinion, which
analyzes the impact of both the Uniform Child
Custody Jurisdiction Act and the federal Parental Kidnapping Protection Act as strongly favoring Janet’s visitation claim, will prove persuasive to the Virginia Court of Appeals and help to
overturn the trial court order.
If the Virginia courts resist this, however,
Janet’s resort would be to the United States Supreme Court, which would have to sort out the
Full Faith and Credit issues in light of the clash-
September 2006
ing state policies on the legal status of same-sex
partners.
Justice Dooley carefully wrote his opinion to
indicate that Janet’s claim to visitation as a coparent was not fully dependent on her former
status as a civil union partner of Lisa. Dooley
observed that courts in Vermont and several
other states have allowed second-parent visitation claims in the absence of civil unions, using
a variety of legal theories that are based on the
fact that the children in question were conceived jointly by committed same-sex couples
with the agreement and understanding that
both the birth mother and her partner would be
full parents of the child, and that usually there
was psychological bonding between the coparent and the child before the adults ended
their relationship. A.S.L.
British Trial Court Refuses Recognition to
Canadian Same-Sex Marriage
Relying on narrow interpretations of Articles 8
and 12 of the European Convention of Human
Rights, Sir Mark Potter, the President of the
Family Division of the High Court in London,
Family Division, of the United Kingdom ruled
that the British government is not required to
recognize the valid Canadian marriage of a
British same-sex couple who had lived in Canada and then returned to live in the U.K. Wilkinson and Kitzinger v. UK, July 31, 2006 ([2006]
EWHC 2022 (Fam)). (The court is the equivalent of a U.S. federal district court, and therefore, the decision can be appealed. The couple
has in fact stated that it plans to appeal. See
http://www.pinknews.co.uk/news/articles/2005–2095.html.)
The couple, Susan Wilkinson and Celia Kitzinger, were married in Canada in August 2003,
and had been living together as a couple for 13
years up to that point. Upon returning to live in
the UK, they sought legal recognition of their
marriage. In an expanded order, they sought
two alternatives: a declaration that the limit of
marriage to opposite-sex couples violates Articles 8, 12 and 14 of the European Convention of
Human Rights, or a formal Declaration of Incompatibility stating that the statutory prohibition against same-sex marriage and the creation of same-sex civil partnerships violates the
Convention.
The restriction of marriage to opposite-sex
couples is set forth in the British common law
and in the Matrimonial Causes Act 1973
(MCA), §11(c). Section 14 of the MCA states
that with respect to foreign marriages, the rules
of English private international law apply. Under these rules, because Kitzinger and Wilkinson are domiciled in the UK and returned to
live in the UK following their marriage, their
capacity to marry is governed by English law,
which, again, does not recognize same-sex
marriage. However, the UK permits same-sex
159
couples to enter “civil partnerships” under the
Civil Partnership Act 2004 (“CPA”), which
went into effect on December 5, 2005. Civil
partnerships, which are open only to same-sex
couples, provide legal rights, benefits and material advantages similar but not equal in all respects to those enjoyed by married couples.
Under Section 215 of the CPA, Kitzinger and
Wilkinson’s Canadian marriage became a civil
partnership when they returned to live in the
UK.
The couple argued that the conversion of
their marriage to a civil partnership was a
“downgrading” of their relationship and a
“consolation prize.” They argued that civil
partnership is unequal to marriage both symbolically, because it does not have the same social recognition as marriage and therefore leads
to a sense of “alienation and marginalisation,”
and practically, because a civil partnerships
would not be recognized in other countries.
They had also noted various other respects in
which married couples and civil partners have
differing rights.
They based their legal argument for marriage
on several articles of the Convention: Article 8,
which provides for a right to respect for private
and family life; Article 12, which provides for a
right to marry according to the national laws
governing that right; and Article 14, which prohibits discrimination against the exercise of
Convention rights. The government argued that
the limitation of marriage to opposite-sex couples does not violate any Convention rights, and
that the creation of civil partnerships is an
equalizing measure, not a discriminatory one;
alternatively, it argued that marriage discrimination is justified and within the margin of appreciation given to individual nations under the
Convention.
The Human Rights Act 1998 (HRA), a British act meant to give further effect to Convention rights, sets forth the framework under
which a court takes into account a judgment of
the European Court of Human Rights or the
Commission. It states that, so far as possible, a
court must read legislation in a way that is compatible with Convention rights, and that when it
cannot do so, and only in such a situation, it
may make a “declaration of incompatibility”
stating that the legislation is incompatible with
Convention rights. However, given the principle of Parliamentary sovereignty, such a declaration does not actually invalidate the legislation but is akin to an advisory opinion with no
independent legal force.
The court stated that same-sex marriage is a
topic on which there is no consensus across
Europe and that the European Court of Human
Rights is “slow to trespass on areas of social,
political and religious controversy.” It cited
several cases in which courts of European nations declined to provide protections to samesex couples on the basis that such a topic is
160
within a nation’s “margin of appreciation.” The
court stated that Parliament passed the CPA not
out of an obligation to comply with European
law or rulings, but as a policy choice. In support, the court cited the statements of several
members of Parliament, finding that the CPA
was designed to “redress a perceived inequality of treatment of long term monogamous
same-sex relationships” while also “demonstrating support for the long established institution of marriage.”
The court then turned to the individual articles of the Convention. Article 12 states: “Men
and women of marriageable age have the right
to marry and to found a family, according to the
national laws governing the exercise of this
right.” The court found that this clearly refers to
marriage in the “traditional sense,” between a
man and a woman. While acknowledging that a
prior case, Goodwin v. UK [2002] 35 EHRR
447, had broadened the scope of Article 12 to
allow post-operative transsexuals to enter
opposite-sex marriages as their post-operative
gender, the court denied petitioners’ contention
that this decision expanded Article 12’s meaning so far as to require the recognition of samesex marriages.
Turning to Article 8, which provides for the
protection of “private life” and “family life,”
the court stated that “family life” is a concept
with a universal meaning across the European
nations, one that does not include childless
same-sex couples. However, the court stated
that homosexual relationships do, in fact come
under the definition of “private life.” Nevertheless, the court noted that not “every alleged act
of discrimination affecting the family or private
life of a person falls within the ambit of Article
8,” citing a prior case, M v. Secretary of State for
Work and Pensions [2006] 2 WLR 637. The
court stated that Article 8 is meant to bar interference with private or family life, and that the
denial of the title and status of marriage cannot
be considered interference. In determining
whether there is an Article 8 violation, the court
stated, it should be concerned with de facto
situations, with practical and intrusive effects,
rather than with de jure categories. The court
stated that Article 8 does not impose a positive
obligation on a government to grant marriage
rights to same-sex couples.
The court next turned to Article 14, the antidiscrimination provision, addressing the argument that, when read in combination with Articles 8 or 12, it requires recognition of same-sex
marriages. Article 14 bars discrimination
against the rights and freedoms “set forth in this
Convention.70 Citing Wandsworth Lond Borough Council v. Michalak, [2003] 1 WLR 617,
and Ghaidan v. Godin-Mendoza, [2004] 2 AC
557, the court stated that the questions to be
considered in an Article 14 query are: (1)
whether the facts fall within the ambit of one or
more Convention rights; (2) whether there is a
September 2006
difference in treatment with respect to that right
between the complainant and others; (3)
whether the others were in an analogous situation; (4) whether the difference was objectively
justifiable; and (5) whether the different treatment is based on a grounds proscribed in Article 14. The court noted that there is overlap
among some of these questions, and that an alternative assessment, according to another
prior case, is “whether the differentiation has a
legitimate aim and whether the means chosen
to achieve the aim is appropriate and not disproportionate in its adverse impact.”
In their Article 14 argument, the petitioners
analogized to the Goodwin decision, arguing
that denying marriage rights to same-sex couples creates feelings of vulnerability, humiliation and anxiety and that “[t]he exercise of the
right to marry gives rise to social, personal and
legal consequences.” With regard to discrimination of Article 8 rights, they argued that the
concept of “private life” is broad and that the
law shows a lack of respect for petitioners’ private life as well as for their family life. They argued that there was discrimination in comparison to others in an analogous situation, and that
this discrimination was not justifiable, because
it does not have a legitimate aim or bear a reasonable relationship of proportionality to that
aim. They argued that it is insufficient to argue
that marriage is the surest foundation for opposite sex couples raising children, because “to
add same-sex couples to the ranks of those able
to be married is unlikely to discourage heterosexual couples in that respect,” as the court
characterized petitioners’ argument. The petitioners argued that the only reason for refusing
to recognize same-sex marriage is bias and a
negative attitude toward homosexuals and that
this is an illegitimate aim.
The court ruled that the discrimination did
not violate Article 8 for the reasons stated previously. However, the court found the question
of Article 12 a harder one. It stated that while
Article 8 is concerned with de facto situations,
Article 12 is concerned with de jure rights,
questions of status, and restrictions imposed on
the right to marry. It chose to look at this question broadly — the right of an individual to
marry the person of his/her choice — rather
than narrowly — the question of whether restrictions can be placed on the right of
opposite-sex couples to marry. The court decided that the issue of same-sex marriage was
within the ambit of Article 12 because Parliament’s passage of the Civil Partnership Act
brought the question with its ambit.
Nevertheless, the court ruled that the different treatment of same-sex and opposite-sex
couples is valid. Regarding the petitioners’
negative feelings brought on by having their relationship classified as a civil partnership as
opposed to a marriage, the court stated that it is
not clear that a substantial number of same-sex
Lesbian/Gay Law Notes
couples would share those feelings or be discontent with the status of civil partnership. Furthermore, the court stated that marriage is an
“age-old institution, valued and valuable, respectable and respected,” that encourages monogamy and the procreation and development
of children in a family unit in which both “maternal and paternal influences” are available.
The court stated that such a belief about marriage is not based on “exclusivity, marginalisation, disapproval or discrimination against homosexuals.” It stated that to grant a same-sex
relationship the title and status of marriage on
the basis of Article 12 would “fly in the face of
the Convention as well as fail to recognise
physical reality.” It stated that the CPA does not
classify same-sex civil partnerships as “inferior” to opposite-sex marriages but that such
relationships, “as a matter of objective fact and
common understanding” and according to how
they are defined under English law and European jurisprudence, are different. The court
found marriage discrimination to be a “legitimate aim,” “reasonable and proportionate,”
and an action that “falls within the margin of
appreciation accorded to Convention States.”
Finally, the court dismissed comparisons to
Canadian or South African decisions requiring
recognition of same-sex marriage, noting that
those nations are not Convention States, and
noting also that South Africa lacked any
equivalent of the CPA. The court also refused to
change the common law or private international
law with respect to recognition of same-sex
marriage, because it found both of these to be
superseded by clear statutory law on the subject, namely the MCA and the CPA.
As an additional blow to Kitzinger and Wilkinson, the court ordered the couple to pay
25,000 pounds (UK) of the government’s costs,
which they apparently cannot afford without financial help. According to the couple’s website, http://www.equalmarriagerights.org, donations can be sent to Equal Marriage Rights,
Box 486, Clifford House, 7–9 Clifford Street,
York, YO1 9RA, United Kingdom. Jeff Slutzky
Federal Courts of Appeals Reverse Decisions
Denying Political Asylum to Gay Men from
Venezuela and Argentina.
The U.S. Courts of Appeals for the Second and
Third Circuits have reversed the decisions of
the Board of Immigration Appeals denying political asylum to two gay men, Samuel Dario
Morett from Venezuela, and Juan Pablo Maldonado from Argentina, in Morett v. Gonzales,
2006 WL 2022009 (2nd Cir., July 13, 2006)
and Maldonado v. Attorney General of the
United States, 2006 WL 1995724, (3rd Cir.,
July 18, 2006).
Each man claimed that he had been subjected to past persecution on account of his sexual orientation. In Morett, the Court of Appeals
Lesbian/Gay Law Notes
for the Second Circuit reversed the decision of
the Board of Immigration Appeals that found
the different instances of mistreatment Morett
suffered were separate and isolated incidents
that were not based on his sexuality, and thus
were not persecution on account of membership in a particular social group.
Morett had been physically and sexually
abused by police, and had been subjected to a
five month campaign of humiliation and extortion coordinated by a police supervisor that included threats of physical and sexual assault,
threatening phone calls made to Morett’s family, and being regularly followed by officers.
The court found that the incidents cumulatively
amounted to persecution, and held that the motivation to abuse Morett was partially on account of his sexuality.
The court found that because Morett had
been subjected to past persecution on account
of his membership within a particular social
group (gay Venezuelans), he was entitled to a
presumptive well-founded fear of future persecution since the government had not suggested
that conditions in Venezuela had since improved. Thus, the court reversed the denial of
his political asylum petition and remanded his
case for further proceedings.
In Maldonado, the government conceded
that Maldonado had been subjected to persecution when he was physically and sexually
abused by the police on at least 20 occasions,
but claimed that Maldonado had not been persecuted on account of his being a member of a
particular social group (gay Argentineans), but
instead on account of his social activities (leaving gay clubs late at night). The court held that
this distinction made no difference because the
fact he was persecuted only when engaged in
elective activities did not negate that he was
persecuted on account of his sexuality.
The court declined to decide whether or not
the government had successfully rebutted the
presumption that Maldonado had a wellfounded fear of future persecution, based on his
past persecution, with evidence that country
conditions had improved, or evidence establishing that he could reasonably avoid persecution by relocating to another part of Argentina.
The court reversed the Board of Immigration
Appeal’s denial of Maldonado’s political asylum petition, and remanded his case for further
proceedings. Bryan Johnson
9th Circuit Holds Wrong Legal Standard Was
Applied in Mexican Gay Asylum Case
The U.S. Court of Appeals for the Ninth Circuit
has reversed the decision of the Board of Immigration Appeals (BIA) denying a gay Mexican
man’s asylum claims because the wrong legal
standards were applied, in Ornelas-Chavez v.
Gonzales, 2006 WL 2390302 (9th Cir., Aug. 21,
2006).
September 2006
Francisco Ornelas-Chavez had suffered a
tremendous amount of abuse as a child on account of his homosexuality and female sexual
identity. As a young boy, he had been raped and
sexually abused by his cousins and several
family friends when he wore his mother’s clothing. Throughout his childhood and early adulthood he was beaten by his parents and sexually
abused by his father and others. He had reported this abuse to his second-grade teacher,
who mocked him for wearing women’s clothing.
When he was older, his father had the police detain him for more than six hours to “teach him to
behave.”
As an adult, Ornelas-Chavez worked as a
guard at a correctional institute, where his coworkers harassed, beat, and attempted to
smother him to death with a pillow. When he
told his supervisor of the abuse, he was given
the choice of tolerating it or quitting.
In his claims for political asylum, withholding of removal, and protection against torture,
Ornelas-Chavez asserted that his physical and
sexual abuse and his unlawful detention
amounted to past persecution, and that he was
more likely than not to be subjected to continued persecution on account of his homosexuality if he were removed to Mexico. The BIA
found that he was ineligible for political asylum
because he had not filed within a year of entering the United States, that he failed to meet the
“more likely than not” standard required to
grant an application for withholding of removal,
and that he provided no evidence he had been
subjected to torture. Thus, all three claims were
denied.
Writing for the 9th Circuit panel, Senior Circuit Judge James R. Browning examined the
evidence on which the Immigration Judge and
the Board of Immigration Appeals relied in denying Ornelas-Chavez’s claims, and found that
they relied only on a background conditions report on Mexico and the fact that OrnelasChavez failed to report his incidents of abuse to
authorities. The court refused to apply a standard that automatically denied withholding of
removal for failing to report abuse to authorities, since in many situations reporting would
result in further abuse. The court held that
since neither the Immigration Judge nor the
BIA had rejected any of Ornelas-Chavez’s evidence as not credible, they were required to assume all of his assertions were true, and thus
applied the wrong legal standard by ignoring
such evidence.
The court also held that the BIA applied the
wrong standard in Ornelas-Chavez’s convention against torture claim when it held that the
evidence did not establish that the Mexican
government sanctioned the abuse, and that the
correct legal standard was whether the government consented or acquiesced to the abuse.
In his dissent, Judge Diarmuid F. O’Scannlain argued that because all of the abuse suf-
161
fered by Ornelas-Chavez, except for his detention by the police, was inflicted by private
citizens, the BIA was correct in denying his
claims because only by reporting the abuse to
authorities and showing that they were unwilling or unable to protect him could OrnelasChavez obtain relief. O’Scannlain also challenged the court’s reasoning in remanding the
case on the convention against torture claim,
asserting that the use of the word “sanction” instead of “consent or acquiesce” did not affect
the outcome of the case. He continued with an
analysis of the facts of the case and asserted
that the evidence failed to establish that
Ornelas-Chavez would, more likely than not, be
tortured if he were returned to Mexico.
The court did make any evaluations based on
the facts of the case, but instead held that the
proper relief was to remand to the BIA to reconsider the claims using the proper legal standards. Although it is unclear whether OrnelasChavez will succeed, this remand will give him
a second chance to make his case before the
Board — this time under more generous legal
standards. Bryan Johnson
Federal and State Courts Order Release of
Convicted Murderer Robert Rosenkrantz
The confluence of state and federal court decisions, both concluding that the California parole system had violated the federal due process rights of convicted gay murderer Robert
Rosenkrantz by continuing to deny him parole
after he had served more than the minimum
length of his sentence, resulted in Rosenkrantz’s release to the custody of his family on
August 5. Rosenkrantz had shot a high school
classmate to death after the classmate “outed”
him to his family and refused to recant, causing
severe emotional upset to Rosenkrantz.
On August 1, U.S. District Judge Gary Allen
Feess approved a Magistrate’s report recommending that the court grant a writ of habeas
corpus requiring Rosenkrantz’s release, in a
decision reported at 2006 WL 2327085 (C.D.
Cal.) as Rosenkrantz v. Marshall. Just a few days
later, the California Supreme Court refused to
override a decision issued earlier by Los Angeles Superior Court Judge David Wesley, whose
decision was based on a similar legal analysis,
according to newspaper reports.
Rosenkrantz was 18 years old, closeted, and
had just graduated high school in June 1985.
He was celebrating by having sex with a male
companion in his parents’ beach house. Rosenkrantz’s younger brother Joey and his
brother’s friend, Steven Redman, a classmate
of Rosenkrantz, suspected that Rosenkrantz
was gay, and were spying on him. Redman, carrying a flashlight, kicked in the door of the
beach house, yelled “Get the fuck out of here
you faggots,” and struck Rosenkrantz with the
flashlight, breaking his nose. At the same time,
162
Joey, how had a stun gun, burned Rosenkrantz’s hand. Rosenkrantz ran out to his car and
retried a BB gun and used it to try to prevent
Redman and Joey from leaving the beach
house, but they phoned Rosenkrantz’s father
and, when he showed up, told him they had
seen Rosenkrantz with another man who had
his pants down.
Rosenkrantz insisted to his father he was not
gay and they were mistaken, but the father, angry, threw Rosenkrantz out of the house. He
spent the next few days living in his car, brooding about his situation, obtained a Uzi machine
gun, did some target practice, and then went to
confront Redman, demanding that he recant
what he had told Rosenkrantz’s father. “Redman refused and continued to taunt and ridicule petitioner,” wrote the federal magistrate.
Enraged, Rosenkrantz pumped ten rounds into
Redman, killing him, then ran away for a month
before finally surrendering to police.
The state sought a first degree murder conviction, but the jury, evidently have some empathy for Rosenkrantz’s situation, would only
go for second degree, resulting in a sentence of
fifteen years to life, plus two years for using a
firearm. Rosenkrantz was a model prisoner,
compiling a perfect record, and earning first an
associate degree and then a bachelors degree in
prison. He also completed every available therapy and counseling program available, earned
several vocational certificates, and earned
glowing recommendations from prison officials
in support his applications for parole once he
had served his minimum time.
But Rosenkrantz ran into a stone wall when it
came to winning release, even though he won a
few preliminary rulings from parole boards and
courts. Ultimately, the governors serving when
his case came up would not approve parole, under the restrictive California system that gives
the Governor final say as an exercise of executive discretion. In 2002, the California Supreme Court upheld a decision by Governor
Davis to deny parole, In re Rosenkrantz, 29 Cal.
4th 616 (2002), based mainly on the nature of
the original offense, which was characterized at
various times as a cold-blooded, executionstyle murder. Rosenkrantz’s various parole
cases became notorious in the California gay
community, where many people came to understand the nature of the provocation and strain
under which Rosenkrantz was operating.
Ultimately, what impressed both judges in
the recent case was the failure of parole
authorities or the government to take account of
the changes in Rosenkrantz as a result of serving his sentence. By continuing to deny parole
based entirely on the nature of the offense, the
courts found, the state was depriving Rosenkrantz of his right to due process of law, since the
governing statutes provided that a convict who
has served the minimum time required under
his sentence is entitled to release if he is no
September 2006
longer a danger to the community due to successful rehabilitation. It was clear to the judges
that Rosenkrantz had accepted responsibility
for what he had done, understood and acknowledged that it was wrong, and had transformed
himself to become a useful, non-threatening
member of society.
Judge Feess’s decision ordered the state to
release Rosenkrantz on reasonable terms of parole by the end of August. The subsequent state
supreme court order, denying a stay of Judge
Wesley’s release order, resulted in Rosenkrantz
quickly being released to his family, his parents
having long since accepted him as a gay son.
He has a computer-related job waiting for him.
The state can appeal both of the decisions on
the merits, but in the interim Rosenkrantz is finally free on bail, and it seems unlikely that the
appellate courts would find fault with these decisions, which make clear that the state’s procedures in Rosenkrantz’s case would amount to
nullifying the jury’s determination that he was
not guilty of first degree murder, and thus was
entitled to parole upon a proper showing of his
current condition of character. A.S.L.
Lesbian Nurse Loses Title VII Discrimination Case
Ruling on August 23, U.S. District Judge Jorge
A. Solis granted a motion for summary judgment against a lesbian nurse alleging that her
discharge after two decades of employment
constituted discrimination on the basis of sex
and religion. Lynch v. Baylor University Medical Center, 2006 WL 2456493 (N.D. Texas).
Judge Solis found that the plaintiff failed to allege the necessary facts to make a prima facie
case under Title VII.
Penelope Lynch began working as a nurse at
Baylor Medical Center in 1984, and was promoted after a few years to be a weekend nurse
supervisor. On or around May 30, 2004, she got
into a confrontation with one of her subordinate
nurses who was uncomfortable with gay people,
purportedly because in college a lesbian had
pressured her for sex and because homosexuality offended her strong religious views. Lynch
attempted to apologize and patch things up with
the other nurse, but the nurse remained agitated about the incident and called the hospital’s ethics hotline to complain. This triggered
an “investigation” of Lynch by the hospital administration, which purportedly uncovered
various problems with her work and led to her
discharge.
In her Title VII claim, Lynch alleged that she
was the victim of gender stereotyping discrimination and religious discrimination, but Judge
Solis found that neither theory properly applied
to the case. Among other things, Solis pointed
out that there was no evidence that Lynch’s appearance or mannerisms were the cause of her
discharge, but rather the various items of inadequate job performance proffered by the de-
Lesbian/Gay Law Notes
fendants. Solis also rejected the argument that
this was religious discrimination because the
subordinate’s religious objections to homosexuality triggered her call to the ethics hotline.
Addressing more generally the sex discrimination claim, Solis observed that the management
officials who hired, evaluated and supervised
Lynch were all women, as if this could be determinative of whether gender stereotyping was
taking place.
Solis also rejected Lynch’s argument that the
hospital’s refuse to allow her to pursue a discharge grievance through its internal procedure
after she had filed a charge with a local civil
rights agency was appropriate under the circumstances. A.S.L.
Another Federal Court Rejects Challenge to
“Don’t Ask, Don’t Tell.”
In Witt v. U. S. Department of the Air Force, 2006
WL 2105052 (W.D.Wash., July 26, 2006), District Judge Ronald Leighton granted the government’s motion to dismiss Major Margaret
Witt’s lawsuit, which sought to enjoin the Air
Force from discharging her under the military’s
policy of “Don’t Ask, Don’t Tell” (DADT), embodied in 10 USC sec. 654. The decision followed a similar analysis to the recent district
court ruling from Boston in Cook v. Rumsfeld,
2006 WL 1071131 (D. Mass., April 24, 2006).
Judge Leighton characterized Witt’s argument to be that the U.S. Supreme Court had established the right to engage in “homosexual
relations” as “fundamental” in Lawrence v.
Texas, such that DADT had to be reviewed under a higher level of scrutiny than the rational
basis test that the courts have been applying.
Judge Leighton specifically ruled that Lawrence does not require this. In doing so, he highlighted a fundamental limitation in the precedential value of the Lawrence decision.
Judge Leighton described Major Witt as “a
highly decorated, well-respected flight nurse in
the United States Air Force Reserves.” He said
that she was a “Standards and Evaluations
Flight Commander with management responsibility for more than 200 flight nurses and medical technicians” and “has been used extensively as a role model in Air Force recruiting
publications.”
Nevertheless, the Air Force had begun investigating Major Witt in the summer of 2004, after
an anonymous allegation that she was a lesbian.
It had been alleged that she had been in a “homosexual relationship” with another woman
from July 1997 through August 2003, that the
two maintained a home in Spokane, which was
across the state from Witt’s base in McChord
Air Force Base, in Tacoma; that the partner was
a civilian who had never been in the military;
that Witt never engaged in homosexual conduct
on base, or with any other member of the military. She never made any disclosures during the
Lesbian/Gay Law Notes
course of the investigation that she was a lesbian, but never denied it, either. The investigating officer “correctly concluded that the allegations were true, and that Witt had engaged in
homosexual relations with her civilian partner.”
In November 2004, Witt was informed that
separation proceedings would be instituted under DADT, and that she would be precluded
from working and from earning pay or points towards promotion or pension, pending final
resolution of the separation process. However,
nothing else happened until March 2006, 16
months later. At that time, she was advised that
the Air Force had begun the separation process,
and that she had a right to request a hearing before an administrative discharge board if she
wanted to contest the separation. She requested
such a hearing immediately, but it had not yet
been scheduled as of the date of this opinion.
Meanwhile, Witt instituted the instant action
in federal court. She challenged the constitutionality of DADT on three grounds: (1) Substantive Due Process, based on Lawrence, (2)
Equal Protection, and (3) First Amendment.
She also argued that the sixteen month delay
had so severely violated her right to procedural
due process that scheduling a hearing after this
delay could not cure the violation, and that the
remedy should be to preclude the government
from processing the separation. The trial court
rejected each of these claims.
As to the substantive due process claim, the
court ruled that, while the Lawrence court
“...made clear its disdain for the Texas law and
its complete rejection of the holding in Bowers,
it left for others to ponder the precise formula it
employed in reaching those conclusions.” Witt
argued that the Lawrence Court “changed the
constitutional landscape by defining private,
consensual, same sex intimacy as a fundamental right, the regulation of which may be justified only by a compelling state interest which
must be narrowly drawn to express only those
interests,” pointing out that the Lawrence Court
relied on cases which recognized a constitutionally protected autonomy to make personal
sexual decisions, all of which involved strict
scrutiny analysis. Witt argued that Lawrence
should be accorded the same status, and that
DADT could not withstand a higher level of
scrutiny.
In the alternative, Witt argued that DADT
could not withstand “intermediate” scrutiny,
under an “as applied” standard of review, balancing the interests of the military against the
rights of a service member. Finally, Witt argued
that DADT could not even withstand rational
basis review, comparing Department of Defense policies towards gays with prior policies
restricting integration of blacks and women in
the military. She cited internal Department of
Defense studies that concluded that there is no
evidence to support the military’s policies towards gays, and argued that the policy is coun-
September 2006
terproductive to unit cohesion and military effectiveness, as it promotes prejudice and
dishonesty among comrades in arms.
Judge Leighton rejected all of these arguments, stating that the question before the court
pits competing notions of liberty expressed in
the Constitution and the Bill of Rights: the ability of a free people to govern themselves as opposed to the expansion of individual rights. He
said that the expansion of one often comes at
the expense of the other. He said that the judicial branch must approach this analysis with
great self restraint and “utmost care.” Viewing
Lawrence through the lense of judicial self restraint, he concluded that Lawrence did not
change constitutional jurisprudence in a way
that impacts on the validity of DADT. He noted
that Lawrence stated that the Texas statute under review “furthered no legitimate state interest,” which, he said, is “classic language used
in rational basis analysis.” He said that the
Lawrence court did not engage in any inquiry to
determine whether the law in question was narrowly tailored to meet a compelling state interest, which he characterized as “required” as a
part of any “strict scrutiny or intermediate review.” He noted that, in his dissent, Scalia reminded the majority that it had applied rational
basis review in its decision. Leighton said that
if the majority had thought that a dissenter had
misunderstood a material aspect of its decision,
it would not be unreasonable to offer clarification. “It did not.” Judge Leighton concluded
that Lawrence was decided on a rational basis
standard, and applied controlling (pre-Lawrence) cases which upheld the constitutionality
of DADT under rational basis review.
He said that the bar is set very high for a
plaintiff in a rational review context, particularly in military cases. He found that the government’s position withstood such review. The
Equal Protection argument was rejected in almost summary fashion, since gays are not found
to be in a suspect or “quasi-suspect” class, under controlling Ninth Circuit precedent. The
First Amendment argument was likewise rejected, as Witt was being separated from service because of conduct, not speech or status.
Witt argued that procedural due process required a reasonably prompt post-suspension
hearing, and that during the 16 month gap between her suspension from duty and the time
when she was notified that she could request a
hearing, she could not earn pay or points towards promotion or retirement. The government asserted that there was no property or liberty interest at stake and that procedural due
process principals do not apply. Judge Leighton
agreed with the government position, citing
prior cases for the proposition that, as a reservist, Witt had no property interest in her continued employment in the military. Witt also argued that she had a liberty interest in the
manner in which the Air Force characterized
163
her ultimate discharge. Judge Leighton noted
that 82% of those discharged under DADT received Honorable Discharges, 13% received
General Discharges, and 5% received an
“Other Than Honorable Discharge.” He concluded that, given her distinguished record,
there was no reason to believe that she would
not receive an Honorable Discharge. He concluded that a service member does not have a
liberty interest that would trigger due process
rights prior to discharge, absent a showing that
the stated reason for discharge is untrue. Witt
could not claim this, because she acknowledges the truth of the charge. “Where the discharge would be honorable, and carries no
stigma or derogatory connotation, it may be validly accomplished without notice and hearing.”
In sum, because Lawrence did not change
the framework in which DADT should be
evaluated, prior case law upholding its constitutionality must stand. No other rights were
found to have been violated. The government’s
motion to dismiss was granted, and Witt’s notion for preliminary injunction was denied.
Witt, who is represented by the ACLU of
Washington, could appeal this ruling to the 9th
Circuit Court of Appeals in San Francisco. Steven Kolodny
NY Court Says State Law Protects Transsexuals
from Discrimination
In what may be the first such ruling by a New
York State court in an employment case, a
Westchester County judge ruled in Buffong v.
Castle on the Hudson, NYLJ, 8/22/2006, p. 24,
col. 1, Index No. 11634/05 (Sup.Ct., N.Y.,
Westchester Co., Aug. 9, 2006), that transgendered persons are protected from workplace
discrimination by the sex discrimination provision in New York State’s Human Rights Law.
Justice Joan B. Lefkowitz’s opinion, first made
public in a New York Law Journal article published August 17, presents something of a mystery, since it belatedly appeared in Westlaw as
an unpublished New York trial court opinion
dated a year earlier in August 2005, as 2005
WL 4658320, 2005 N.Y. Slip Op. 52314(U),
with a notation that it would be listed in a table
in a volume of Misc.2d, the official N.Y. trial
court reporter. Perhaps counsel for Buffong
alerted the court to the potential significance of
the case or something else happened to get the
story into the Law Journal a year later. This
mystery awaits explanation. The court’s opinion does not describe the facts of the case, but
the Law Journal article reported them based on
an interview with one of the plaintiff’s attorneys, Louis Ginsberg of White Plains.
Eric Buffong, who worked as a cook at Tarrytown’s Castle on the Hudson restaurant, encountered difficulties at work after a co-worker
brought in a high school yearbook depicting
Buffong as a woman, Erica Buffong. Buffong
164
claimed that four months of harassment by coworkers and reduction in his working hours
culminated in his discriminatory discharge in
May 2005. Buffong sued the restaurant, claiming a violation of the State Human Rights Law
and seeking $3 million in damages. Westchester County has a ban on sex and sexual orientation discrimination, but the county ordinance
does not provide for state court lawsuits and
damages.
The state Human Rights Law forbids sex and
sexual orientation discrimination, but does not
specifically mention discrimination based on
gender identity or expression, the language that
was added to the New York City Human Rights
Law a few years ago specifically to protect
transsexuals from discrimination. The campaign to enact the Employment NonDiscrimination Act at the state level a few years
ago was clouded by the refusal of advocates for
SONDA, most prominently Empire State Pride
Agenda, to include specific reference to gender
identity in the bill, fearing that this would prevent its passage.
Judge Lefkowitz noted court precedents supporting Buffong’s claim, in her decision to deny
the restaurant’s motion to dismiss the complaint. First, she pointed out, before the New
York City law was amended specifically to protect transsexuals, it had been interpreted in
various cases to already provide such protection under the sex discrimination provision.
In rulings such as the frequently-cited Maffei
v. Kolaeton Industries, Inc., 164 Misc.2d 547
(Sup.Ct., N.Y., 1995), state court judges had
applied the New York City Human Rights Law
to employment cases to protect transgendered
plaintiffs, and some city officials had argued
that there was no need to amend the city law in
order to protect transsexuals explicitly.
In addition, some federal judges, ruling as
early as 1996 (Rentos v. Oce-Office Systems,
1996 WL 737215 [S.D.N.Y. 1996]), and as recently as 2003 (Tronetti v. TLC Healthnet Lakeshore Hospital, 2003 WL 22757935 [W.D.N.Y.
2003]) in cases where state law was applicable,
predicted that New York courts, when confronted directly with the issue, would find the
state sex discrimination law applicable to cases
of anti-transsexual discrimination.
And, of course there is the old case of Richards v. U.S. Tennis Assn., 93 Misc.2d 713
(Sup.Ct., N.Y., 1977), in which a state trial
judge had ruled that the state’s sex discrimination law protected famed tennis pro Dr. Renee
Richards, who was known prior to transitioning
as Dr. Richard Raskind, from discriminatory
treatment by officials of the U.S. Tennis Association who refused to let Richards compete as
a woman at Forest Hills. This was not an employment case, but was covered under the law’s
application to places of public accommodation
But Justice Lefkowitz is apparently the first
clearly to take the step of applying the state law
September 2006
to protect a transsexual plaintiff in an employment discrimination case, according to the Law
Journal‘s report. “Transgendered persons are
either male or female,” she wrote. “Case law
supports the view that a transgendered person
states a claim pursuant to New York State’s Human Rights Law on the ground that the word
‘sex’ in the statute covers transsexuals. This
Court agrees that plaintiff’s claim falls within
the liberal interpretation to be accorded the
New York State Human Rights Law. Accordingly, the motion to dismiss the complaint is denied.”
This ruling will allow the case to proceed to
discovery and the possibility that the restaurant
will make a settlement offer.
Lefkowitz’s ruling is consistent with a recent
trend in the federal appeals courts to find protection for transsexuals under various federal
sex discrimination laws, on the theory that discrimination due to stereotyped views about
gender can come within the realm of sex discrimination, even though the federal laws do
not specifically mention gender identity, and
one federal civil rights law, the Americans With
Disabilities Act, specifically states that transsexuality cannot be construed to be a disability
affording protection under that law. Lefkowitz’s
ruling is also consistent with appellate precedent interpreting the similarly-worded New
Jersey Law Against Discrimination, in a case
involving a transsexual doctor. A.S.L.
9th Circuit Denies Rehearing of T-Shirt
Controversy
In Harper v. Poway Unified School District,
2006 WL 2103580 (July 31, 2006), the 9th
Circuit Court of Appeals denied a petition for
en banc review in Harper v. Poway Unified
School District, 445 F.3d 1166 (9th Cir., Apr.
20, 2006), by a vote of 10–5. A three-judge
panel had voted 2–1 to uphold the school district’s insistence that high school student Tyler
Harper not wear an anti-gay t-shirt in school.
Harper wore the t-shirt to protest the high
school’s observance of a Day of Silence, a program promoted by gay-straight student alliances to build tolerance for diversity in the
schools. Actually, the t-shirt that led to his discipline was a harsher version of one he wore on
the actual Day of Silence, which had not drawn
any comment or attention. On the front,
Harper’s homemade t-shirt worn on the following day said: “Be Ashamed, Our School Embraced What God Has Condemned,” and on
the back, it said, “Homosexuality is Shameful
‘Romans 1:27’.”
When Harper refused to remove the t-shirt,
he asked to be suspended, but the principal instead confined him to the administrative office
for the rest of the day and then sent him home.
While Harper’s t-shirt was homemade, it certainly wasn’t “original,” as similar slogans have
Lesbian/Gay Law Notes
popped up on homophobic t-shirts worn by students at other schools to protest the Day of Silence.
Under the controlling precedent of Tinker v.
Des Moines Independent Community School
District, 393 U.S. 503 (1969), in which the Supreme Court upheld the right of students to
wear black armbands at school to protest the
Vietnam War, the First Amendment protects the
speech of high school students from censorship, subject to the right of school administrators to take reasonable steps to prevent disruption of the educational program. The 2–1 vote
in the panel reflected a sharply divided view of
whether Poway high school administrators were
justified under this test in restricting Harper’s
anti-gay message.
Harper petitioned for reconsideration by an
expanded panel of the court. The petition was
denied, with 5 judges dissenting in an opinion
by Circuit Judge Diarmuid O’Scannlain, joined
by Judges Kleinfeld, Tallman, Bybee and Bea.
The dissenter on the original panel was Judge
Alex Kosinski.
O’Scannlain references Kosinski’s “powerful dissent,” and then says, “Harper’s shirt was
undoubtedly unpleasant and offensive to some
students, but Tinker does not permit school administrators to ban speech on the basis of ‘a
mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.’ Nevertheless, the panel
majority stretches mightily to characterize
Harper’s message as a psychological attack
that might ‘cause young people to question
their self-worth and their rightful place in society.’”
O’Scannlain goes on to characterize the
panel decision as “approval of blatant viewpoint discrimination” in violation of First
Amendment principles, and insists that the text
of Harper’s t-shirt, as commentary on a politically contentious issue, deserved full First
Amendment protection against content-based
censorship.
“[U]nder the panel majority’s decision,” he
wrote, “school administrators are now free to
give one side of debatable public questions a
free pass while muzzling voices in opposition. A
respected First Amendment scholar notes that
the panel majority’s decision constitutes a dangerous retreat from our tradition that the First
Amendment is viewpoint-neutral. It’s an opening to a First Amendment limited by rights to be
free from offensive viewpoints. It’s a tool for
suppression of one side of public debates
(about same-sex marriage, about Islam, quite
likely about illegal immigration, and more)
while the other side remains constitutionally
protected and even encouraged by the government.” For this point, O’Scannlain cites to a
blog on First Amendment issues maintained by
Prof. Eugene Volokh, a noted constitutional
controversialist, who posted a diatribe about
Lesbian/Gay Law Notes
the panel’s decision when it was issued. “No
Supreme Court decision empowers our public
schools to engage in such censorship nor has
gone so far in favoring one viewpoint over another,” insists O’Scannlain, stating his regret
that the court would not be taking on the case
for en banc review.
The dissent drew defensive statements from
Judge Stephen Reinhardt, who wrote the majority panel opinion, and Judge Ronald M. Gould.
Said Reinhardt, “The dissenters still don’t
get the message — or Tinker! Advising a young
high school or grade school student while he is
in class that he and other gays and lesbians are
shameful, and that God disapproves of him, is
not simply ‘unpleasant and offensive.’ It strikes
at the very core of the young student’s dignity
and self-worth. Similarly, the example Judge
Kozinski offers, a T-shirt bearing the message,
‘Hitler Had the right Idea’ on one side and
‘Let’s Finish the Job!’ on the other, serves to intimidate and injure young Jewish students in
the same way, as would T-shirts worn by groups
of white students bearing the message ‘Hide
Your Sisters — The Blacks Are Coming.’ Under
the dissent’s view, large numbers of majority
students could wear such shirts to class on a
daily basis, at least until the time minority
members chose to fight back physically and
disrupt the school’s normal educational process.”
Reinhardt chides the dissenters for lack of
empathy for minority students, and their failure
to comprehend the psychological injury such
students would suffer form being exposed to
such hateful speech at school.
In a one-sentence concurrence, Gould
writes: “Hate speech, whether in the form of a
burning cross, or in the form of a call for genocide, or in the form of a tee shirt misusing biblical text to hold gay students to scorn, need not
under Supreme Court decisions be given the
full protection of the First Amendment in the
context of the school environment, where administrators have a duty to protect students
from physical or psychological harms.”
The opinions expose a stark divide over freedom of speech in the high school setting. Does
the duty of a school administration to protect
students from harm extend so far as to the allow
content-based censorship of speech that might
be predicted to be inflammatory, at a time when
there has not yet been any physical disruption?
In Tinker, the Supreme Court warned against
preventing political speech based on predictions of future disruption, but in that case the
Court was not dealing with the argument that
the speech in question might be causing psychological harm to other students, and it is not
clear based on existing precedents how the
Court would handle that question.
According to the three-judge panel decision,
there had been tensions at Poway High School,
and even physical altercations involving gay
September 2006
students. The Day of Silence program was intended to help “cool it” by getting the non-gay
students to develop some empathy for the gay
students. Harper’s t-shirt was a deliberate
provocation intended to undermine this goal.
But, as Judge O’Scannlain points out, there
is a significant constitutional tension here,
since this is clearly content-based censorship
of speech. Although Harper’s t-shirt did not induce a violent response, letting him wear it for
two consecutive days without any administration response might cause psychological harm
to gay students who were aware of what was going on. Letting it go more than one day might be
construed by students as tacit approval of the
message.
On the other hand, this is the red meat of the
culture wars, and the Alliance Defense Fund,
the anti-gay law firm that stirs up litigation in
support of homophobes nationwide, which represents Harper here, plans to use this case as a
vehicle to get the issue to the Supreme Court
and make the public schools of America a safe
space for the expression of religiously-inspired
homophobic sloganeering. A.S.L.
6th Circuit Rejects Sex-Stereotyping Suit Under
Title VII as “Boostrap” Attempt
The U.S. 6th Circuit Court of Appeals has held
that Title VII of the Civil Rights Act of 1964
cannot be the basis for a sexual orientation discrimination lawsuit, even if the complaint is
couched in the terminology of gender stereotyping discrimination. Vickers v. Fairfield Medical Center, 453 F.3d 757 (July 19, 2006), affirmed a summary dismissal of the lawsuit by
the federal court for the Southern District of
Ohio. Title VII bars employers from discriminating, limiting employment opportunities, or
adversely affecting one’s status as an employee
based, among other grounds, on sex. The other
grounds do not include sexual orientation.
Christopher Vickers was a private police officer at Fairfield Medical Center (FMC) in Lancaster, Ohio. Vickers’ fellow officers found out
that Vickers had become friendly with an
openly gay doctor at FMC, and had gone on vacation to Florida with a male friend. The fellow
officers, Kory Dixon and John Mueller, started
relentlessly harassing Vickers, and some incidents were witnessed, and one even photographed, by their supervisor, Police Chief Steve
Anderson. From May 2002 through March
2003, Dixon and Mueller did such things as imprinting the word “fag” on Vickers’ report
forms, disparaging Vickers’ sexual preferences
and activities, calling Vickers a “fag” and
“gay,” subjecting Vickers to vulgar gestures,
placing irritants and chemicals in Vickers’
food, using the nickname “Kiss” for Vickers,
suggesting that Vickers should provide them
with sexual favors, and, in one instance, handcuffing Vickers while simulating sex with him,
165
while the supervisor took pictures. A photograph of that incident circulated widely at the
hospital.
Vickers was intimidated from reporting the
incidents to the FMC administrators, but eventually hired an attorney and attempted to
change the work environment. FMC says that it
separated Vickers from the co-workers, but
Vickers stated that he was required to continue
working closely with Anderson, Dixon, and
Mueller. Meanwhile, the human resources department initiated personnel action against
Vickers.
Vickers filed charges with the Equal Employment Opportunity Commission and filed a
Title VII action against FMC, his co-workers,
and his supervisor, which included counts of
conspiracy to violate his equal protection rights
and 21 state law claims. The defendants moved
for summary judgment, which the federal district court granted on Jan. 21, 2004. The basis
for dismissal was that “Title VII does not protect individuals from discrimination based on
sexual orientation and that Supreme Court and
Sixth Circuit case law do not recognize Vickers’
claims of harassment based on being perceived
as homosexual as violations of Title VII.” Vickers appealed.
The U.S. Supreme Court has stated that
“making employment decisions based on sex
stereotyping, i.e., the degree to which an individual conforms to traditional notions of what is
appropriate for one’s gender, is actionable discrimination under Title VII.” Price Waterhouse
v. Hopkins, 490 U.S. 228 (1989) (woman at accounting firm passed over for partnership because she was too “macho” and should “walk
more femininely”). In attempting to fit the harassment he experienced into the recognized
federal grounds for a Title VII violation, Vickers
contended that his harassers were motivated by
his gender non-conformity, rather than his sexual orientation. (Vickers has never said on the
record that he is gay.) “Vickers contends that in
the eyes of his co-workers, his sexual practices,
whether real or perceived, did not conform to
the traditionally masculine role. Rather, in his
supposed sexual practices, he behaved more
like a woman.”
The court of appeals, voting 2–to–1, held
that “the theory of sex stereotyping under Waterhouse is not broad enough to encompass such
a theory.” The behavior that bothered Vickers’
co-workers was not anything they observed at
work; rather, the basis for the harassment was
Vickers’ perceived homosexuality. “[A] gender
stereotyping claim should not be used to bootstrap protection for sexual orientation into Title
VII,” held the court. If Vickers were to succeed,
“any discrimination based on sexual orientation would be actionable under a sex stereotyping theory … as all homosexuals, by definition,
fail to conform to traditional gender norms in
their sexual practices.”
166
The court further rejected any claim by Vickers of same-sex sexual harassment, because, in
Vickers’ one-sex workforce, members of one
sex are not exposed to disadvantageous terms or
conditions of employment to which members of
the other sex are not exposed, as would be required for a sexual harassment claim. The
court, citing Smith v. City of Salem, 378 F.3d
566 (6th Cir. 2004), did recognize, however,
that merely because Vickers identifies with a
group unprotected by Title VII, namely, homosexuals, does not disqualify him from pursuing
an action for sex-stereotyping discrimination.
(In Smith, the court permitted an Ohio fireman
with “gender identity disorder” to go forward
with a suit claiming sex discrimination under
Title VII and the equal protection clause.)
The court affirmed the summary dismissal of
Vickers’ claim.
District Judge David Lawson dissented. In
his view, the Supreme Court had held in Waterhouse that “making employment decisions
based on sex stereotyping, i.e., the degree to
which an individual conforms to traditional notions of what is appropriate for one’s gender, is
actionable under Title VII.” Lawson believes
that Vickers pleaded exactly that, making out a
cognizable claim under FRCP 12(c) which
should have survived dismissal. Vickers “has
pleaded facts from which a fact finder could infer that sex (and not simply homosexuality)
played a role in the employment decision and
contributed to the hostility of the work environment, [therefore] drawing the line should not
occur at the pleading stage of the lawsuit.”
Summary dismissal is not appropriate because
it is conceivable that Vickers could prove a set
of facts that would entitle him to relief, stated
the dissenter. The plaintiff was “perceived as
effeminate,” and the workplace was hostile because the job required only “manly men.” Although homosexuality is not a qualifying classification to allege job discrimination, neither is
it disqualifying. Therefore, the dissent would
hold that Vickers had sufficiently pleaded
claims of sex stereotyping and gender discrimination.
Vickers’ attorney is Randi Barnabee, identified as a male-to-female transsexual and an
“advocate for transgendered issues” at the
website of The Alpha Omega Society, www.aosoc.org, a northern Ohio organization “dedicated to helping cross dressers and those close
to them.” Alan J. Jacobs
Oklahoma DOMA & Amendment Challenge
Survives Dismissal Motion in Reduced Form
A federal district court in Oklahoma, in a meticulous ruling, addressed whether same-sex
couples in legal unions recognized by state and
foreign governments have standing to challenge the federal Defense of Marriage Act
(DOMA) and a state constitutional equivalent.
September 2006
Bishop v. Oklahoma, 2006 WL 2045877
(N.D.Okla., July 20, 2006). District Judge Terence Kern ruled on the claims of two Oklahoma
same-sex couples against the State of Oklahoma and the federal government. The state
and federal defendants moved to dismiss all
claims. While the court did dismiss many of the
plaintiffs’ claims, it reserved judgment on some
claims until a factual record and further legal
arguments are put before the court through
post-discovery summary judgment motions.
Mary Bishop and Sharon Baldwin have exchanged vows in a church-recognized commitment ceremony that took place in Florida in
2000; Susan Barton and Gay Phillips are
joined in a Vermont civil union and a Canadian
marriage. The couples argued that DOMA, as
well as its Oklahoma constitutional amendment
equivalent, violate the Due Process, Equal Protection, and Privileges and Immunities Clauses
of the U.S. Constitution’s Fourteenth Amendment as well as the Full Faith and Credit clause.
First Judge Kern analyzed the claims regarding DOMA, addressing each section of DOMA
separately: Section 2 (28 U.S.C. sec. 1738C),
which permits a state to refuse to recognize any
same-sex relationship that is “treated as a marriage” under another state’s laws, and Section 3
(1 U.S.C. sec. 7), which defines marriage for
federal purposes as exclusively between a man
and a woman.
The court first addressed the standing issue.
Citing longstanding case law, the court noted
that in order to have standing, a plaintiff must
show (1) that an injury is concrete and particularized, and actual or imminent; (2) that there is
a causal connection between the injury and the
conduct complained; and (3) that it is likely
that a favorable decision would address the injury.
The court noted that plaintiffs Bishop and
Baldwin, the couple with no formal legal union,
conceded that they lacked standing to challenge Section 2, the interstate recognition
clause, as it had no effect on them. As for Barton
and Phillips, although the defendants did not
raise the issue of standing, the court stated that
it was obligated to examine the issue.
Regarding Barton and Phillips’s Vermont
civil union, the court stated that the relevant issue under Section 2 was whether a civil union is
“treated as a marriage” under Vermont law; if
not, then the plaintiffs have suffered no concrete injury because Section 2 addresses only
such relationships. The court found that, in
some ways, Vermont treats civil unions as marriages; the Vermont civil union statute explicitly states that civil unions grant “all the same
benefits, protections and responsibilities under
law” as marriage. However, the court noted that
a civil union is still not a marriage, because the
Vermont civil union statute explicitly limits
marriage to a relationship between a man and a
Lesbian/Gay Law Notes
woman and the statute’s legislative history distinguishes a marriage from a civil union.
For insight, the court looked to a California
case, Smelt v. County of Orange, 374 F.Supp.2d
861 (C.D. Cal. 2005), in which a federal district
court concluded that a California domestic
partnership did not bestow standing to challenge Section 2 of DOMA, a decision affirmed
in Smelt v. County of Orange, 447 F.3d 673 (9th
Cir. 2006). The court also looked to the Congressional intention behind DOMA, agreeing
with a commentator that “DOMA did not anticipate the scenario of an alternate form of
legally-cognizable relationship” and therefore
did not apply to such relationships. Although
the court acknowledged that a Vermont civil
union might be closer to marriage than a California domestic partnership, it nevertheless
concluded that a civil union was not “treated as
marriage” by the state of Vermont and therefore
did not confer standing to challenge Section 2.
Turning to the Canadian marriage, the court
stated that the word “state” in Section 2 of
DOMA, similar to its usage in the Full Faith and
Credit Clause, was not intended to refer to foreign countries but only to U.S. states. The court
stated that recognition by a U.S. state of a foreign country’s marriage is determined by principles of comity, and that such recognition is a
discretionary decision of the forum state.
Therefore, the court found that the Canadian
marriage, like the Vermont civil union, did not
confer standing to challenge Section 2, because
DOMA is inapplicable to the question whether
a state will recognize a same-sex marriage performed in a foreign country.
The court’s implication, then, is that the only
type of relationship that would confer standing
to challenge DOMA’s interstate-recognition
clause is a same-sex marriage granted by a U.S.
state; as of this writing, only a Massachusetts
marriage would fit that definition.
The court next turned to Section 3 of DOMA.
Addressing Bishop and Baldwin’s claim, the
court stated that because the couple has not entered any union that could potentially entitle
them to federal benefits, there is nothing for
Congress to refuse to recognize. Once again citing the Ninth Circuit’s decision in Smelt that a
California domestic partnership did not create
a concrete or particularized injury for the purpose of standing to challenge Section 3, the
court found Bishop and Baldwin’s claim “even
more tenuous,” and stated that because they
could not show that the federal definition of
marriage caused them, or could imminently
cause them, a particularized injury, they lacked
standing to challenge Section 3.
The court finally granted plaintiffs some
hope when it turned to the claim of Barton and
Phillips against Section 3. Once again, the
court cited Smelt, but this time it did so in order
to distinguish the facts of this case. In Smelt, the
Ninth Circuit reversed the district court’s rul-
Lesbian/Gay Law Notes
ing that a California domestic partnership
conferred standing to challenge Section 3, finding instead that a domestic partnership confirms no greater standing to challenge DOMA
than would any other non-marriage legal relationship such as an ordinary partnership, a corporate partnership, or an agreement between
two unmarried people to live together.
The court found Barton and Phillips’s claim
distinguishable for three reasons: they have a
legally valid marriage in a foreign country; they
have a Vermont union that is legally classified
as a “civil union,” not just a domestic partnership; and there is good reason to treat this relationship differently from other types of legal unions such as corporations or common-law
marriages. Judge Kern stated that “the status of
two people who have joined in a Vermont civil
union simply cannot be compared to the status
of two members of a corporate partnership,”
and that Barton and Phillips are a “committed,
loving couple” who, because they are excluded
from marriage in Vermont, had no alternative
but to form a civil union, while a corporate partnership “has no indicia whatever of an
opposite-sex marriage” implying that the relationship of Barton and Phillips does have such
indicia. The court stated that “[i]t seems to ignore common sense and to elevate form over
substance to equate these two types of legal relationships for purposes of analyzing the injury
suffered as a result of the federal definition of
marriage.” Therefore, the court found that Barton and Phillips do not necessarily lack standing at this early stage of the proceedings to
challenge Section 3. However, the court stated
that it would reserve ruling on this issue until
the next stage of pleading, when a factual record and legal arguments are before the court.
The court next turned to the federal defendants’ substantive arguments underlying their
motion to dismiss, assuming for the sake of argument that Barton and Phillips had standing
to challenge Section 3. The court granted the
defendants’ motion to dismiss with regard to the
Full Faith and Credit and the Privileges and Immunities clauses, ruling that those clause apply
only to state governments, while Section 3 concerns the federal government. However, the
court kept Barton and Phillips’s claims alive as
to the Due Process and Equal Protection
clauses, stating that these issues “may involve
specific factual findings related to the purpose
and justifications for the law.” The court put off
ruling on these clauses until a factual record
and legal arguments can be developed.
The second half of the court’s opinion dealt
with the Oklahoma amendment. The amendment, adopted at the November 2004 elections,
roughly parallels DOMA. Part A is the analog of
DOMA Section 3, defining marriage to exclude
same-sex couples; Part B is authorized by
DOMA Section 2; it states that Oklahoma shall
not recognize any same-sex marriage per-
September 2006
formed in another state. (Part C, which punishes anyone who knowingly issues a marriage
license to a same-sex couple, is not at issue in
the proceeding.)
After dismissing procedural arguments
raised by the state defendants as to venue and
11th Amendment immunity, the court discussed standing. With regard to Part B, the definition clause, Judge Kern found no standing for
the claims of Bishop and Baldwin, because,
“[f]or the same reasons explained above with
respect to Section 2 of DOMA,” they have no
marriage they wish to have recognized in the
state of Oklahoma.
It is not clear exactly what the court means,
however, because while the part of the opinion
dealing with Section 2 notes merely that Bishop
and Baldwin “have never entered into a marriage or other formal union in another state,”
Part B does not deal with interstate issues.
Therefore, with respect to Part B, the court
could mean either that because the couple has
not even tried to apply for a marriage license,
there is no injury at issue; or, in a bit of circular
reasoning, it could mean that because plaintiffs
cannot “enter into a marriage or other formal
union” in Oklahoma, there is no potential marriage or union for the state to refuse to recognize.
Turning to the standing issue with respect to
the claims of Barton and Phillips against Part B,
the court first discussed the relevance of the
Vermont civil union. It noted that the language
of Part B is even more limited than that of Section 2; it refers not to relationships “treated as a
marriage” but strictly to “marriage.” Because
the court had found that a civil union did not
qualify as a relationship “treated as a marriage,” it ruled that a civil union certainly did
not qualify as a “marriage.” Because Oklahoma’s amendment does not expressly prohibit
recognition of a civil union, the court found no
potential for an imminent, concrete and particularized injury against Barton and Phillips
from Part B. As for the Canadian marriage, the
court found that, as in Section 2 of DOMA and
the Full Faith and Credit Clause, the word
“state” refers only to other U.S. states and not to
foreign countries. Therefore, as with Section 2,
the court ruled that the Canadian marriage did
not confer standing on Barton and Phillips to
challenge Part B.
The court once again gave hope to the plaintiffs — this time, to all of the plaintiffs when it
turned to Part A, the state definition. The court
stated that the definition prevents both couples
from marrying, an injury that is particularized,
personal, actual and imminent; a direct cause
of the definition; and one likely be redressed by
a favorable decision. As before, however, the
court stated that it would reserve judgment on
this issue until the next stage of proceedings.
Next, the court turned to the state defendants’ substantive arguments underlying their
167
motion to dismiss, assuming for the sake of argument that the plaintiff couples had standing
to challenge Part A. Noting that the Full Faith
and Credit claim could not apply to Part A, the
court turned to the Privileges and Immunities
claim and dismissed it, stating that the Privileges and Immunities clause has been considered dormant for more than 100 years. As it did
in the federal context, however, the court reserved judgment on the due process and equal
protection claims until it has a full record, finding they would be more appropriate for a postdiscovery summary judgment determination.
Finally, the court dismissed an intervention
motion filed by an anti-gay-marriage organization, finding its interests identical to and adequately represented by the defendants, but it
allowed the organization to file an amicus brief.
The court also denied plaintiffs’ motion to
strike certain exhibits.
The court ordered the parties to submit a
stipulated statement of facts and to file crossmotions for summary judgment on the issues
that remain open: the standing of Barton and
Phillips to challenge Section 3 of DOMA, and
the equal protection and due process challenges to Section 3; and the standing of all
plaintiffs to challenge Part B of the Oklahoma
amendment, and the equal protection and due
process challenges to Part B.
According to the Washington Blade (July
14), most gay rights attorneys opposed litigating this case, particularly the DOMA claims,
because of the perceived conservative leaning
of Oklahoma’s courts and the possibility of the
case resulting in an unfavorable legal precedent. Worse, some attorneys say that if a court
overturned DOMA, Congress might be more inclined to pass a constitutional ban on same-sex
marriage. The plaintiffs’ attorney stated, however, that her clients do not want to do anything
that would increase the likelihood of a federal
constitutional amendment’s passage. The opinion itself gives no indication of how the court
will ultimately rule on the issues that remain
open. Jeff Slutzky
Kentucky Supreme Court Rules Against Lesbian
Co-Parent
In a disappointing decision, the Kentucky Supreme Court ruled that a non-biological mother
who had been a child’s primary financial supporter, but not primary caregiver, did not have
standing to seek custody or visitation rights under the Kentucky de facto parenting statutes.
B.F. v. T.D., 194 S.W.3d 310 (Ky., June 15,
2006). Unlike some other state high courts,
which have relied on equitable doctrines to ensure that non-biological parents can assert
rights to custody and visitation after the breakdown of the relationship with the biological parent, the Kentucky Supreme Court determined
that the Kentucky statute on the subject was
168
“comprehensive” and precluded equitable relief.
B.F. and T.D. were in relationship for approximately eight years, and during that time,
decided to have a child together. The couple
adopted a child, M.D., but only T.D. was the legal adoptive parent, which the Court explained
as being “due to the parties’ uncertainty of Kentucky law with respect to same-sex couples
jointly adopting a child.” M.D. lived with the
couple until she was six years old, at which
point B.F. and T.D. broke up. B.F. asserted that
T.D. had agreed to execute legal documents that
recognized B.F. as a guardian or custodian of
the child, but not such documents were ever
executed.
Notwithstanding her lack of a recognized legal or biological relationship with the child,
B.F. asserted that she was a de facto custodian
of M.D. After conducting an evidentiary hearing, the trial court found that B.F. could not satisfy the standard for a “de facto custodian” under Kentucky law, which requires that a person
show by clear and convincing evidence that the
person was “the primary caregiver for, and financial supporter of, a child70 who had resided
with the person for a period of six months to a
year, depending on the age of the child. The
trial court found that B.F. was the primary financial provider for the child and that B.F. was
a caregiver for the child, but T.D. was the primary caregiver for the child. The trial court
originally suggested to B.F. that it would consider further arguments even if she lost on the
de facto custodian issue, but upon further consideration, determined that B.F.’s failure to satisfy the statutory requirements precluded any
consideration by the court of other equitable arguments such as in loco parentis, waiver or estoppel. Accordingly, B.F. was given no opportunity to present facts or arguments in support of
her right to relief beyond the four corners of the
statute.
On appeal, the Court of Appeals affirmed the
trial court’s decision that B.F. did not satisfy the
requirements of the de facto custodian statute.
2005 WL 857093 (Ky. App., April 15, 2005)
(unpublished). With respect to any equitable
arguments for relief, the Court of Appeals ruled
that B.F. had failed to raise these issues before
the family court and thus had not preserved the
issues on appeal. The Kentucky Supreme Court
granted review on November 16, 2005.
In an unanimous opinion written by Justice
Lambert, the Kentucky Supreme Court affirmed. The court found that, based on the evidence developed during the proceeding in the
trial court, the determination that B.F. was not
the primary caregiver for M.D. was not clearly
erroneous, the standard to be applied on review.
While the court described the apparent misleading of B.F. by the trial court “unfortunate,”
the court also found that the trial court was correct to limit its review to the statutory question.
September 2006
Prior to the passage of the Kentucky de facto
custodian statute, the court noted, “it was
within the trial court’s discretion to allow an interested party to intervene in custody proceedings.” By contrast, the court explained, “current law is more restrictive of the court’s
discretion with respect to who may attain standing to claim custody.” The court also suggested
that the cases cited by B.F. in support of an argument that T.D. had waiver her right to challenge B.F.’s parental status were inapplicable
because in those cases, the child was no longer
in the physical custody of either of the parents,
which was not the case here. Moreover, the
court noted that only a party who has standing
in the first place can assert a waiver argument
in support of a claim for custody.
Apparently aware the court was applying a
standard far more restrictive of the rights of
non-biological parents than has prevailed in
other states, it, “We are not unaware of the recent decision of the Supreme Court of Washington, Carvin v. Britain, [155 Wash. 2d 679
(2005)], where that court took an expansive
view of its common law and equitable powers
with respect to allowing standing to seek custody in circumstances not dissimilar to those
presented here. Notably, however, there was no
de facto custodian statute available for the
presentation of the applicant’s claims. As such,
if the applicant was to be heard at all, it was on
non-statutory grounds. In this case, [the Kentucky de facto custodian statutes are] controlling.”
Ultimately, while acknowledging the “significant relationship” of B.F. to M.D., the court
felt bound by the requirements of the Kentucky
statute and compelled to rule that B.F. could not
qualify as a de facto custodian because she was
not the primary caregiver of the child.
Shannon Minter and Courtney Joslin, from
NCLR, and Bryan D. Gatewood of Louisville,
KY, represented B.F., and expressed their disappointment at the outcome of the case in a
press release available on NCLR’s webite. In
this statement, Minter did note a silver lining of
the opinion: “[W]e are relieved the court left
the door open for future claims by same sex parents under the statute when the second parent
can show that she was a primary caretaker. That
will depend on the facts in each case.” Sharon
McGowan.
Indiana Supreme Court Refuses to Review
Co-Parent Adoption Case, Allowing Positive
Precedent to Stand
Declining to review the court of appeals decision in In re Infant Girl W., 845 N.E.2d 229
(Ind.Ct.App. 2006), rev. denied, 851 N.E.2d
961 (Neb., Aug. 3, 2006), the Indiana Supreme
Court has let stand a ruling employing a creative interpretation of the state’s adoption statute
to allow unmarried couples, including same-
Lesbian/Gay Law Notes
sex couples, to adopt children. Lambda Legal
Defense Fund represents the co-parents in the
case, identified in the court’s opinion by their
initials as R.K.H. and K.A.B.
The refusal to review the case brought an impassioned dissent by Justice Brent E. Dickson,
who had argued in a prior case raising these issues in which the court apparently ducked
them, King v. S.B., 837 N.E.2d 965 (Ind. 2005),
that the adoption statute should be strictly construed and that the question whether same-sex
partners should be allowed to adopt their partners’ children was appropriately dealt with by
the legislature, not the courts.
“This Court, as Indiana’s court of last resort,
should accept jurisdiction and resolve the important issues expressly left unresolved in
King, particularly in light of the recent statutory
enactment and the reasoning of Judge Najam’s
dissent.” (Najam had argued for the strict construction approach, “persuasively,” according
to Judge Dickson.) “Of course, our denial of
transfer does not constitute approval of the
Court of Appeals decision and has ‘no legal effect other than to terminate the litigation between the parties in the Supreme Court,’” he
commented, “But by denying transfer in this
case, we are missing a valuable and important
opportunity to minimize uncertainty and confusion until such time as the legislature provides
explicit superceding reclarification. I would
prefer for this Court to grant transfer to uphold
the legislature’s exclusive authority to regulate
adoption eligibility and procedure and to apply
Indiana’s existing adoption statutes as prohibiting adoptions by unmarried couples.” A.S.L.
N.Y. Surviving Partner Loses Wrongful Death
Claim But Maintains Estate Action as Executor and
Heir
Being bound by controlling appellate precedent, Nassau County, N.Y., Supreme Court Justice Daniel Palmieri, ruled in Saegert v. Simonelli, 2006 WL 2289182, 2006 N.Y. Slip Op.
51548(U), on August 1 that the surviving
same-sex partner of a woman killed in a traffic
accident could not maintain a wrongful death
action on her own behalf, but that as executor of
her deceased partner she could sue for wrongful
death on behalf of her partner’s surviving legal
heirs and, because her partner survived the accident for several painful hours, could also
maintain a negligence action on behalf of the
estate for pain and suffering, any damages from
which would go to her as principal heir under
her partner’s will.
Victoria Sarafino died from injuries sustained when she was struck by a car driven by
Gerard Simonelli late on the evening of March
25, 2003. Sarafino was attempting to cross
Franklin Avenue in Franklin Square, Long Island. She was not walking in the crosswalk. Simonelli claimed that he did not see her in time
Lesbian/Gay Law Notes
to stop. Sarafino died from her injuries three
hours later in the hospital.
Linda Saegert, who had been Sarafino’s domestic partner for seventeen years, brought suit
against Simonelli for wrongful death. New
York’s Wrongful Death Statute authorizes
somebody who would inherit from the deceased
person as a matter of law (a distributee) to bring
an action for the economic damages the plaintiff suffered on the loss of the victim’s life. This
right does not automatically extend to anybody
who would inherit under the deceased person’s
last will and testament, however, but just those
would would automatically inherit if the decedent died without a will.
Sarafino did have a will, which named Saegert as her principal heir and left only token
amounts to her relatives. Pointing to this, Saegert claimed she was Sarafino’s intended heir
and thus should be entitled to sue for wrongful
death.
In 2003, another Nassau County trial judge
ruled in Langan v. St. Vincent’s Hospital, another case involving a death allegedly due to
medical negligence following an accidental injury, that the surviving same-sex Vermont Civil
Union partner to the deceased could bring a
wrongful death action, but that decision was reversed in 2005 by the Appellate Division for
the 2nd Department, 25 A.D.3d 90, the same
court that would review any decision in this
case by Justice Palmieri.
Thus, Palmieri found that he was bound to reject Saegert’s attempt to sue for wrongful death
on her own behalf, especially in light of the
Court of Appeals more recent decision in Hernandez v. Robles, 2006 WL 1835429 (2006),
the same-sex marriage case, in which Langan
was cited with approval. However, he pointed
out, the record showed that Sarafino did have
surviving relatives would could inherit from her
as a matter of law, and at this stage in the litigation there was no evidence that they had suffered no economic loss by her death, so the attempt by Simonelli to win summary judgment
on the wrongful death claim was premature, as
it could be brought by Saegert as an estate representative of those relatives.
In addition, and more importantly for Saegert, there was evidence supporting her contention that Simonelli was negligent, in the form of
an expert deposition showing that it was possible for him to have seen Sarafino in time to stop
his car, and there was also evidence that Sarafino was conscious for some time after the accident, thus incurring pain and suffering. When
somebody incurs pain and suffering at the
hands of the defendant before dying, their estate is entitled to recover for the value of that
pain and suffering, and Saegert, as executor,
could maintain suit for that pain and suffering.
Furthermore, under the terms of Sarafino’s will,
Saegert was her principal heir, and thus would
inherit assets of the estate.
September 2006
Consequently, although Justice Palmieri
found that Saegert could not seek compensation for her economic losses due to Sarafino’s
death, she could seek compensation for such
losses to other surviving relatives as well as
compensation to the estate (and ultimately to
herself) for Sarafino’s pain and suffering. A.S.L.
N.Y. Court Rejects Comity Claim for Canadian
Same-Sex Marriage
In an unpublished decision dated July 27 and
first reported on August 18 by 365Gay.com online, New York State Supreme Court Justice
Harold L. Galloway ruled in Martinez v. Monroe
Community College, No. 05/00433 (N.Y. Sup.
Ct., Monroe Co.), that the college was not required to enroll an employee’s same-sex
spouse in the college’s employee health insurance plan. Justice Galloway said that requiring
the college to do so would be an “end-run”
around the N.Y. Court of Appeals’ recent ruling
in Hernandez v. Robles, 2006 WL 1835429,
2006 N.Y. Slip Op. 05239 (July 6, 2006), the
New York same-sex marriage case.
Patricia Martinez, a word processing supervisor at the college, has worked there since
1994, and has been together with Lisa Ann
Golden since 2000. Patricia and Lisa entered
into a civil union in Vermont on July 5, 2001,
and three years later they went to Ontario to be
married on July 5, 2004. Immediately on returning to Rochester, Patricia wrote to the human resources department at the college asking
to enroll Lisa in the health insurance program.
At the time, the union contract covering faculty of the college included domestic partnership benefits, but the union contract for support
staff did not. In fact, notes Justice Galloway, the
support staff contract did not even specifically
mention spousal benefits, which the college
was providing as a matter of custom. The human resources director, Sherry Ralston, did not
respond to Patricia’s request until November
24, probably reflecting some extended internal
discussions about whether to grant or deny it.
But on that date, she wrote, “Your request creates a matter of first impression at the college
and is part of an emerging legal issue in the
country. We have carefully researched the matter. Under our analysis, MCC is not required to
provide benefits to Ms. Golden.”
At that time, New York Attorney General
Eliot Spitzer’s office had already issued its
opinion letter, taking the position that New York
would recognize Canadian same-sex marriages, but of course that opinion was not a
binding ruling, merely an opinion, and is not
even mentioned in Galloway’s decision.
Patricia’s lawsuit, filed by Rochester attorney Jeffrey Wicks as a cooperating attorney for
the New York Civil Liberties Union, advanced
several theories in support of the claim for
benefits coverage. She argued that denying the
169
benefits violated the Equal Protection Clause of
the state constitution and the Sexual Orientation Non-Discrimination Act (SONDA), and
that the Canadian marriage was entitled to recognition under the principal of comity that
courts apply to determine whether to recognize
marriages contracted in other jurisdictions.
Galloway easily disposed of the first two arguments. In light of the Court of Appeals ruling
in Hernandez, it was clear that as a matter of
New York State constitutional law, same-sex
couples are not entitled to marry and the state is
not required to recognize same-sex marriages,
he wrote. Furthermore, quoting from Judge Victoria Graffeo’s concurring opinion in the Hernandez case, this was not sexual orientation
discrimination, since the same-sex marriage
ban was based on the gender of the parties, not
their sexual orientation. As Graffeo had pointed
out, gay men can marry women, and lesbians
can marry men.
But the comity argument required a bit more
discussion. Normally, comity is extended to a
foreign marriage unless to do so would violate
the public policy of the state. Galloway began
his analysis by invoking the federal Defense of
Marriage Act (DOMA), which excuses states
from any duty they might have under the Full
Faith and Credit Clause of the federal constitution for recognizing same-sex marriages performed in other states. This, of course, is basically irrelevant to the question he had to
decide, since the Full Faith and Credit Clause
does not apply to issues of foreign law. But, invoking the legislative history of DOMA, he said
that “its purpose was to defend traditional, heterosexual marriage… On the Federal level,
then,” he wrote, “it would appear that same-sex
marriage is contrary to current national public
policy.” But one wonders about the relevance of
this observation, since the question before the
court was not whether the federal government
should recognize the Martinez-Golden marriage, but rather whether Monroe Community
College should.
Ultimately, however, Galloway decided that
the Hernandez ruling decides this case as well.
“Pursuant to Hernandez,” he wrote, “the issue
of whether same-sex marriage, or some derivation thereof, should be permitted in New York is
a matter of public policy, and currently, the policy in New York State is that same-sex marriage
is not authorized or recognized. Inasmuch as
the marriage laws of Canada which recognize
same-sex marriage are inconsistent with those
of New York State, plaintiff’s same-sex marriage in Canada is not entitled to comity here.”
Galloway continued, “Essentially, to apply
the principle of comity to plaintiff’s marriage
would be to make an end-run around what the
Court of Appeals has declared to be the will of
the New York State Legislature, which currently defines marriage as limited to the union
of one man and one woman. As neither Federal
170
nor New York policy is consistent with permitting same-sex marriage, it would appear to be
contrary to the nature of the principle to afford
comity to plaintiff’s Canadian marriage.”.
This reading of Hernandez is rather broader
than the scope of that case, which was concerned only with whether denying marriage to
same-sex couples violated the New York constitution, and incidentally, as raised in one of
the combined lawsuits, whether the existing
Domestic Relations Law marriage provisions
would allow for same-sex marriage. It is significant that in fact the New York legislature has
never explicitly addressed the issue of samesex marriage, there is no state-level DOMA explicitly limiting marriage to the union of one
man and one woman, and the Court of Appeals’
ruling in Hernandez does not address the issue
of comity for out-of-state same-sex marriages.
Thus, there seem to be plausible grounds for
the appeal that Martinez will be bringing before
the Appellate Division, 4th Department, and
ultimately to the Court of Appeals.
In the meantime, the union representing
support staff at MCC, perhaps spurred on by
this lawsuit, successfully included domestic
partnership in its demands when it negotiated a
new contract in 2005, and so Lisa Ann Golden
has been receiving the insurance coverage as a
domestic partner of Martinez since January 1,
2006. That does not make this lawsuit moot,
however, since her costs for health care or insurance during 2005 remain as potential damages, as the law suit challenges the college’s refusal to let Martinez enroll Golden during the
open enrollment period for coverage for that
year. A.S.L.
N.Y. Court Says Name-Calling Insufficient to
Establish Hate Crime
An Albany trial judge ruled on August 3 in In
the Matter of John V., 2006 WL 2333091 (Family Ct., Albany County), against an attempted
anti-gay hate crime prosecution on the ground
that the only relevant evidence was that the perpetrator called the victim a “faggot” while hitting him in the nose. According to Albany
County Family Court Judge W. Dennis Duggan,
this is not sufficient evidence to sustain such a
charge without any evidence that the assailant
knew or believed that the victim was gay.
An additional complication, and the reason
this case was in the Family Court rather than a
criminal court, is that both parties are
14–year-old boys. According to the victim’s
deposition, “I know John V. From previously attending Watervliet Elementary School with
him. John V. has had issues with me starting in
October & November, 2005. In the past, he has
made references and state that I was a queer,
faggot, and a fucking bitch... Upon crossing 4th
Avenue, I observed John run from the group towards me. John approached me. I turned
September 2006
around and stated to John, ‘What do you want.’
John stated, ‘this is what you get for calling the
cops on me Faggot.’ At this time John used his
hand and struck me on the nose.”
The prosecutor alleged that John V. had committed a hate crime, a bias-motivated assault on
the victim. But Judge Duggan was not persuaded. He noted that the statute “requires that
the victim have been ‘intentionally’ selected ‘in
whole or in substantial part’ because of a belief
by the defendant regarding the complainant’s
sexual orientation," Duggan said that “the petition and supporting documents allege no facts
to support a direct finding or an inference that
the alleged victim is homosexual” and “there
are no alleged facts to support a direct finding
or an inference that the Respondent believed
that the alleged victim was a homosexual except for the fact that he called him one. Finally,
there are no statements of fact to support a direct finding or an inference that the Respondent’s actions were motivated by a belief held
by the Respondent that the alleged victim was a
homosexual. The most natural inference that
can be drawn from the Respondent’s complete
statement is that he was motivated by revenge
because the alleged victim called the cops on
him.”
Duggan’s decision was clearly affected by
the age of the parties, reflecting the common
knowledge that teenage boys tend to use the
term “faggot” indiscriminately as an insult
without necessarily importing the meaning that
somebody is gay. His opinion includes a
lengthy history of the word “faggot,” emphasizing its varied meanings in American and English usage, which seems largely irrelevant.
The crux of Duggan’s reasoning, however,
turns on the characteristic behavior of teenage
boys. “To sustain this petition,70 he wrote, “the
Court would have to conclude that any fourteen
year old boy who called another fourteen year
old boy a faggot was motivated to hit him because he believed the person was, in fact, a homosexual and that conclusion who have to be
based entirely on the fact that he called him a
faggot. Anyone with any knowledge of teenage
boys would conclude that it is just as likely, or
even more so, that this is typical teenage trashtalking.”
Thus, concluding that the victim was not selected because of his actual or perceived sexual
orientation, Duggan ruled that the case could
not be tried as a hate crime. A.S.L.
Federal Court Rejects Dismissal of Jovanovic Suit
Springing from “Cybersex” Prosecution
In Jovanovic v. City of New York, 2006 WL
1411541 (S.D.N.Y., Aug. 17, 2006), U.S. District Judge Paul A. Crotty largely rejected motions to dismiss by the City of New York, NYPD
Detective Milton Bonilla, and former ADA
Linda Fairstein in a civil rights action brought
Lesbian/Gay Law Notes
by Oliver Jovanovic, reportedly the first person
to be prosecuted in a “cybersex” case involving
allegations of an S&M scene that went too far.
The case earned a large degree of notoriety in
1996, when Jovanovic was arrested, again in
1998 when the trial took place, and yet again in
1999 when the Appellate Division reversed his
conviction after twenty miserable months in jail
on a sentence of 15–to-life (during which he
suffered a life-threatening assault at the hands
of another convict), and yet again in 2001 when
the Manhattan prosecutors moved to have the
case against him dismissed “with prejudice.”
The Appellate Division found that his trial
was fatally flawed by the exclusion of evidence
on the issue of consent that would have helped
his defense. The Appellate Division’s decision
in People v. Jovanovic, 700 N.Y.S.2d 156
(1999), was notable for intimating, for perhaps
the first time by an American appellate court,
that consent might be a defense to criminal
charges arising out of S&M sex that does not
produce serious permanent injury, a position
that has been rejected by the European Court of
Human Rights, the highest appeals court in
England, and many other American courts.
Ironically, just a month prior to Judge Crotty’s
decision, a California appellate panel nibbled
about the edges of a case presenting similar issues, People v. Febrissy, 206 WL 2006161 (Cal.
App., 3rd Dist., July 19, 2006), but did not resolve the central consent to SM question, as the
jury verdict in the case, considered in light of
the arguments made at trial, suggested to the
court that the jury had rejected the defendant’s
contention that the use of a riding crop and
whip on his restrained female partner was
purely consensual, even as it absolved him of
liability for inflicting great bodily injury using a
deadline weapon, torture or rape in connection
with the same acts. Febrissy was clearly about
SM sex, and the trial judge had evidently allowed the case to go to the jury with the implicit
understanding that Mr. Febrissy might be acquitted of the charge of domestic violence (infliction of corporal injury on a cohabitant) had
the jury found the acts to be entirely consensual.
After almost two years of futile efforts by DA
Robert Morgenthau’s office to get Jovanovic to
plead guilty in exchange for avoiding additional
jail time, the prosecution moved to have the indictment dismissed, with prejudice, in the interest of justice, after concluding that they
could not successfully retry him. Jovanovic had
won a final disposition consistent with innocence. The prosecution attributed its failure to
try Jovanovic again to the unwillingness of his
“victim,” Jamie Ruzcek, to testify, but Judge
Crotty’s opinion suggests that she would not
have made a particularly credible witness, assuming Jovanovic’s allegations stand up.
Just short of three years later, after completing his doctoral degree with honors, Jovanovic
Lesbian/Gay Law Notes
struck back, filing a federal civil rights suit on
October 28, 2004, against New York City,
NYPD Detective Milton Bonilla, and former
Assistant DA Linda Fairstein, claiming false arrest, malicious prosecution, malicious abuse of
process and denial of his constitutional right to
a fair trial. On August 17, U.S. District Judge
Paul A. Crotty denied the defendants’ motions
to dismiss all but one of the claims, authorizing
Jovanovic to proceed with discovery in the case
and, if no settlement is reached, a trial on the
merits.
Crotty’s opinion recites a litany of amazing
allegations by Jovanovic about how he was
framed by Detective Bonilla and denied a fair
trial by Prosecutor Fairstein. For purposes of
deciding the motion to dismiss, Judge Crotty
was required to treat these allegations as true,
but of course Jovanovic’s ability to win damages would depend upon proving enough of his
allegations through pre-trial deposition testimony or at trial to meet the rather high evidentiary burdens in such cases.
The case against Jovanovic began on November 27, 1996, when Jamie Ruzcek, then a
20–year-old Barnard College student, reported
to Bonilla that she had been sexually and physically assaulted by Jovanovic, then a 30–yearold graduate student, four days earlier. Jovanovic claims that their date followed upon a
lengthy email correspondence during which
Ruzcek expressed interest in having an S&M
sexual experience with Jovanovic, but the judge
at his trial, applying the state’s Rape Shield
Law, refused to allow him to introduce most of
the evidence on this claim.
In any event, Ruzcek told Bonilla, as Crotty
summarizes in his opinion, “that Jovanovic had
hogtied her for nearly twenty hours, violently
raped and sodomized her, struck her repeatedly
with a club, severely burned her with candle
wax, and repeatedly gagged her with a variety of
materials.” She also claimed to have been tied
up and abused in other ways while held captive
in Jovanovic’s apartment.
Jovanovic, who denies any wrongdoing,
claims that there was no physical evidence to
match Ruzcek’s story, either in terms of physical injury to her or physical evidence at his
apartment, which Bonilla searched more than a
week after hearing Ruzcek’s story. Nonetheless, Jovanovic says, Bonilla falsely testified to
the grand jury to procure an indictment, and repeated his false testimony on the witness stand.
Crotty concludes that if Jovanovic’s allegations
are correct, then there was not probable cause
for him to be arrested or reasonable grounds for
him to have been prosecuted, providing a basis
for his civil rights tort claims against Bonilla.
Jovanovic claims that Fairstein made it impossible for him to have a fair trial by issuing
“highly inflammatory and prejudicial remarks” about him to the press, both before and
during the trial. Crotty finds corroboration for
September 2006
these allegations in Fairstein’s own published
statements in a law review article about strategies for using the press in support of criminal
prosecutions! Jovanovic blamed the city government for encouraging the kind of misconduct in which he claims Bonilla and Fairstein
engaged, pointing to similar conduct by the police and the prosecutor’s office in other sensational sex-linked trials, as predicate for his
claim that the City should bear liability for the
misconduct of its employees in this case.
The defendants argued that Jovanovic’s lawsuit should be thrown out as untimely. The statute of limitations for these claims is three years.
They argued that the claim for false arrest had
to be filed within three years of the arrest, and
that the claims of malicious prosecution and
unfair trial had to be filed within three years after the holding of the trial. Crotty pointed out
that the time to file a claim runs from the date
when the claim accrues, which means that all
the necessary elements exist to bring the claim
to court. In order to claim false arrest, malicious
prosecution and unfair trial, a key element is
showing that the plaintiff was innocent, or at
least achieved a final disposition of his case
consistent with his innocence. Crotty found that
until the judge granted the prosecution’s motion to dismiss the charges with prejudice, that
element had not occurred, as the Appellate Division’s ruling setting aside the verdict in the
first trial still left Jovanovic under indictment
and subject to being tried again. Thus, the time
to file ran from slightly less than three years before Jovanovic filed his timely charge.
Bonilla and Fairstein also argued that Jovanovic had failed to allege specific facts necessary to prove false arrest, malicious prosecution
and unfair trial, while the City contended that it
should not be held responsible for whatever errors Bonilla and Fairstein committed. Crotty rejected these claims, finding that if Bonilla actually did falsify significant testimony to the
grand jury and the trial jury, and if Fairstein actually did make the kind of prejudicial out-ofcourt statements alleged by Jovanovic, he
would be entitled to win his claims. As to the
City’s potential liability, Crotty found that Jovanovic’s allegations were sufficient to present a
live question whether there was a custom of
similar police and prosecutorial misconduct in
connection with sensational sex-linked criminal trials, which would make the City bear financial liability to the victims of such misconduct.
Crotty rejected outright the claims of governmental immunity by Bonilla and Fairstein. Police officers and prosecutors enjoy partial immunity from liability for routine errors of
judgment in the course of their work, and prosecutors enjoy total immunity for their conduct of
their official duties. But Crotty found that Jovanovic’s allegations, if proved, would overcome
any immunity claims here. There is no immu-
171
nity from liability for using false testimony to
prosecute a person as to whom there is no valid
evidence of wrongdoing, and prosecutors are
not protected from liability for what they say to
the press outside the courtroom, which is not
considered to be part of their officials duties.
The only claim that Crotty dismissed was
abuse of process, a narrowly defined legal theory that involves misusing the legal process for
improper purposes. Even here, however, Crotty
found that the elements of a valid abuse of process claim might be available to Jovanovic, so
he gave leave to amend the complaint if Jovanovic could make specific credible claims that
Bonilla or Fairstein were pursuing him for illegitimate reasons.
If the defendants don’t respond to this ruling
by making an acceptable settlement offer to
Jovanovic, the next step would be discovery,
giving him a chance to question them under
oath and lay the ground work for proving his
claims at trial. The usual next step would be
motions for summary judgment based on the
deposition testimony, although it would not be
unusual, if the deposition testimony looks bad
for the City, to make a new, improved settlement
offer. Crotty’s opinion did not indicate the size
of Jovanovic’s damage claim. A.S.L.
Florida County Wins Summary Judgment in
Challenge to Bookstore Regulations
U.S. District Judge Adalberto Jordan (S.D. Fla.)
has rejected all constitutional challenges to a
Miami-Dade County, Florida, ordinance that
prohibits adult businesses from having video
booths with doors that can close. Stadium Book
& Video, Inc. v. Miami-Dade County, 2006 WL
2374740 (July 31, 2006). Three adult bookstores challenged the 1996 ordinance, claiming that in light of the Supreme Court’s decision
in Lawrence v. Texas finding gay sex protected
under the Due Process Clause, the county was
violating the constitutional rights of bookstore
patrons by requiring video booths to have permanently open entrances or doorways, and imposing a fine for people engaging in sex in adult
bookstores. Judge Jordan granted the county’s
motion for summary judgment in the case.
The ordinance, No. 96–13, was passed after
the County commissioners heard testimony
from public health experts that enclosed video
booths in bookstores were a venue for unsafe
sex that could spread sexually transmitted diseases, including AIDS. The proposal to require
that the interior of video booths be open to public view was thus presented as a public health
measure rather than an attempt to crack down
on adult businesses as a matter of morality. At
the time the ordinance was passed, gay sex was
a misdemeanor in Florida, even if it was undertaken by consenting adults in private, and
Miami-Dade County placed high on the Center
for Disease Control’s statistics about HIV
172
prevalence, stimulating political pressure for
the commissioners to do something to help prevent the spread of HIV.
After the measure went into effect, revenue
from the operation of video booths at adult
bookstores in Miami-Dade County dropped
sharply, according to testimony presented by
the plaintiffs in this case, who presented a
medical expert who testified that this was not an
effective public health measure and that there
was no proof that enclosed video booths in adult
bookstores were a major venue of sexually
transmitted disease.
The county argued that this lawsuit should be
rejected because a lawsuit was filed shortly after the ordinance was passed challenging its
constitutionality and was rejected by the federal courts. At that time, or course, the prevailing constitutional precedent, the Supreme
Court’s 1986 decision in Bowers v. Hardwick,
held that the Constitution does not provide any
protection for the sexual privacy of gay people.
The plaintiffs in this new case argued that because Lawrence overruled Bowers, the question
whether their customers’ constitutional rights
were violated had to be examined anew. Furthermore, these three adult business owners
were not plaintiffs in the earlier law suit, even
though one of them was operating an adult
bookstore in the county at that time.
Judge Jordan concluded that the new lawsuit
was not precluded by the old one, but, in what is
becoming a tired refrain, that Lawrence does
not change the legal analysis that was used in
the prior case. Observing that the U.S. Court of
Appeals for the 11th Circuit, which would have
jurisdiction over any appeal in this case, had
rejected the argument that Lawrence recognized a fundamental right to engage in private
consensual gay sex in Lofton, the Florida gay
adoption case, Jordan concluded that this is a
rational basis case. That is, the county regulation could be upheld if there is any rational policy justification for it.
While noting that medical and public health
experts were divided over whether removing
doors from video booths would make any contribution to preventing the spread of sexuallytransmitted diseases through unsafe sex, Jordan concluded that the county commissioners
could rationally believe that there was a valid
public health justification for the proposal,
based on the testimony that was presented to
them. He noted that prior court decisions had
ruled that adult bookstores are places of public
accommodation, not private places to which a
right of locational privacy might apply, and also
concluded that there was no unconstitutional
burden on expression protected by the First
Amendment, since the law was not intended to
forbid exhibiting the sexually-explicit films
provided in the video booths, but merely to
open activities taking place in the booths to
public view as a deterrent measure. Sexual ac-
September 2006
tivity in a place open to public view would not,
of course, be protected by the constitutional
right of privacy.
It is unlikely that an appeal of this ruling to
the 11th Circuit would be successful, in light of
that court’s approach to Lawrence. The Supreme Court has so far refused to hear any appeals from the 11th Circuit’s restrictive view of
Lawrence in a variety of cases, so it also seems
unlikely that it would grant a petition for review
in this case. A.S.L.
Federal Civil Litigation Notes
5th Circuit — The 5th Circuit found that the
district court erred in finding the government
immune from a negligence suit for failure of
government officials at an outpatient facility of
the Veterans Affairs Department in Austin,
Texas, to provide appropriate supervision to Dr.
Gregory Vagshenian, the main defendant in the
case, on charges that Vagshenian had performed “illegal, inappropriate and unnecessary
physical examinations” of the genital of two
male patients, the plaintiffs. Bodin v. Vagshenian, 2006 WL 2457104 (5th Cir., Aug. 24,
2006). In an opinion by Circuit Judge Emilio
M. Garza, the court approved the district court’s
conclusion that the government could not be liable for Dr. Vagshenian’s own actions, which
were outside the authorized scope of his job duties and performed for his own sexual gratification, but that it could be held to account if it
were shown that co-workers negligently failed
to intervene.
7th Circuit — In Keri v. Board of Trustees of
Purdue University, 2006 WL 2338023 (7th
Cir., Aug. 14, 2006), the court affirmed summary judgment against a claim of wrongful denial of reappointment by a college instructor
about whose open homophobia students had
complained to the administration. There were
other complaints about his performance as
well, but the court reiterated at several points in
the opinion by Judge Kanne the claims that
Keri was openly disdainful of homosexuals.
7th Circuit — An attempt by a Nigerian man
convicted on serious insurance fraud charges to
forestall deportation to Nigeria by asserting that
he was a homosexual who would be subject to
persecution and torture if returned to his home
country was rejected by the Board of Immigration Appeals, and the 7th Circuit affirmed on
Aug. 23 in Ogochukwu v. Gonzales, 2006 WL
2457379. According to the unsigned Order issued by the court of appeals, Ogochukwu had a
history stretching back a quarter century of using various aliases and entering into marriages
of convenience in order to maintain and regain
residency in the U.S. The court noted that if a
petitioner in an immigration matter has been
guilty of a serious felony, the kinds of arguments
Ogochukwu was making in opposition would
not be subject to judicial review. The court
Lesbian/Gay Law Notes
noted with apparent approval that the Immigration Judge found Ogochukwu’s assertion that
he was gay was not credible. The 7th Circuit
opinion places it in a context where one could
speculate that it was a creative attempt to find a
mechanism for staying in the U.S. despite his
felony fraud conviction.
8th Circuit — A Missouri state law intended
to exclude sexually-oriented advertising from
the state’s highways was an unconstitutional
content-based prohibition of speech, according
to the panel decision in Passions Video, Inc. v.
Nixon, 2008 WL 2389380 (Aug. 21, 2006).
Circuit Judge Heaney, writing for the court, reversed a decision by the district court that the
measure was a constitutional regulation of commercial speech, finding instead that the statute
was overbroad and sacrifices “an intolerable
amount of truthful speech about lawful conduct.”
11th Circuit — The 11th Circuit rejected a
petition for en banc review of the panel decision
in Boxer X v. A. Harris, 437 F.2d 1107 (11th
Cir., Jan. 27, 2006), petition for en banc review
denied, 2006 WL 2271270 (11th Cir., Aug. 9,
2006), Barkett dissenting. The case involved a
suit by a male prisoner against a female prison
guard for allegedly requiring him to strip and
masturbate in front of her for her entertainment.
Boxer X had alleged violations of his right to
privacy (4th Amendment) and right against
cruel and unusual punishment (8th Amendment), as well as a 1st Amendment violation for
reprisals against him for reporting the incident
to prison authorities. The 3–judge panel rejecting a motion to dismiss the 4th Amendment and
1st Amendment claims, but found that the incident as alleged involved only “de minimis” injury and thus did not state an 8th Amendment
claim. Dissenting from the denial of en banc review on this point, Circuit Judge Rosemary
Barkett argued that in light of the due process
protection for personal sexuality and expression recognized in Lawrence v. Texas, the allegations involved an injury of sufficient gravity
to justify allowing the 8th Amendment claim to
proceed. Circuit Judge Ed Carnes, concurring
in the denial of rehearing, argued that there was
no pressing need for the circuit to reconsider
the 8th Amendment issue, as the panel ruling
did not create a split in circuit law or involve an
outcome determinative issue in this case, in
light of the panel’s determination that Boxer X
had a valid 4th Amendment privacy claim.
California — Magistrate Judge Craig M.
Kellison issued a report and recommendations
in Clinton v. California Dept. of Corrections,
2006 WL 2285733 (E.D.Cal., Aug. 8, 2006),
recommending that the district court deny injunctive relief to Thomas Clinton, who characterizes himself as an “effeminate, white, prison
homosexual, and a prison rape survivor” who is
fearful about his safety upon release from
prison and is representing himself pro se in the
Lesbian/Gay Law Notes
litigation. Clinton sued for an order requiring
the prison authorities to take steps to ensure
that he is released to safe housing, but Magistrate Kellison concluded that the federal courts
must defer to state authorities in deciding how
to handle discharges. While stating that the
court is “sympathetic to plaintiff’s frustration
in finding safe housing upon his release,” Kellison insisted that issuing the requested order
would “adversely impact the prison system because it would compel prison officials to take
action making arrangements for plaintiff upon
his release from prison that goes beyond the requirements of applicable state administrative
rules.” Kellison also noted that Clinton’s demand for injunctive relief directed individual at
the warden of the prison was outside the court’s
authority because Clinton had not named the
warden as an individual defendant in the case.
Connecticut — The Hartford Courant reported on Aug. 23 that a lawsuit between six
Episcopal priests and Connecticut’s Episcopal
Bishop has been dismissed by U.S. District
Judge Janet Bond Arterton, on the ground that
the issues presented were not appropriate for
judicial resolution. The priests are in a struggle
with their Bishop over his position on gay
rights, and particularly his support for the ordination of openly gay clergy and his vote in favor
of the appointment of V. Gene Robinson as
Bishop of New Hampshire. The lawsuit
claimed that Bishop Andrew D. Smith had violated the legal rights of the six priests and the
churches they serve by asserting diocesan control when they attempted to break away from the
Diocese of Connecticut due to the Bishop’s positions on gay issues. “Whether bishop Smith
acted contrary to or outside of the Diocese’s
own rules is a question of canon law,” wrote
Judge Arterton, “not a question of constitutionality of the challenged Connecticut statutes. A
declaration of unconstitutionality by the court
would not redress the plaintiffs’ actual grievances or their theological disputes with” the
bishop.
Florida — Joe Redner, a gay man living in
Hillsborough County, was offended when the
County Commission reacted to a gay pride display at West Gate Regional Library by passing a
resolution stating: “Hillsborough County Government abstains from acknowledging, promoting, and participating in gay pride recognition
and events.” The display had been relegated to
a much less prominent part of the library, out of
the general view of children, in response to adverse public comment. Redner did what offended Americans do, he filed a lawsuit against
the county and those commissioners who enacted the resolution, claiming his 1st Amendment rights were violated by the policy.. Redner
v. Hillsborough County, Florida, 2006 WL
2045948 (M.D. Fla., July 20, 2006). Defendants attacked his standing to sue as well as the
substance of his complaint. Judge James S.
September 2006
Moody, Jr., granted the motions by individual
defendants to dismiss (crediting an argument
that the individual defendants enjoyed governmental immunity from suit based on their legislative acts), but found that Redner did have
standing to bring an equal protection claim
against the county government if he could
credibly alleged that the commission’s action
violated his right to equal protection of the laws.
The problem, however, was that Judge Moody
found that the complaint before him was too
non-specific about the nature of the alleged
equal protection violation. Consequently, he
granted the motion to dismiss without prejudice
and advised that Redner could take another
shot at formulating a valid complaint.
Georgia — U.S. District Judge J. Own Forrester has ordered Georgia Technical University to abide by a settlement agreement in a suit
brought on behalf of two students by the antigay Alliance Defense Fund, requiring that the
speech code governing on-campus housing facilities be changed to eliminate wording that
prohibits residents from any attempt to “injure,
harm” or “malign” a person because of “race,
religious belief, color, sexual/affectional orientation, national origin, disability, age or gender.” Alliance Defense Fund argues that it violates the constitutional rights of students to
forbid them from engaging in such speech activities in the dormitories. David French, a lawyer for ADF, hailed the order, claiming that
without it students would be entering a “zone of
censorship when they walk on campus.” ADF
is masterminding a nationwide campaign to attack university policies that were enacted to
protect racial and sexual minorities from a hostile environment on campus by suppressing
harassing speech, on the ground that students
have a constitutional right at state institutions
to engage in such speech. ADF’s claim is that
the university policies constitute discrimination against religious students who feel compelled by their beliefs to malign gay people
publicly. Atlanta Journal and Constitution,
Aug. 16.
Kansas — In Kelly v. Robertson, 2006 WL
2465528 (Kans. Ct. App.) (Unpublished disposition), the court of appeals affirmed per curiam the decision by Reno County District
Judge Timothy J. Chambers to summarily dismiss state inmate Thomas Kelly’s claims that
he was unconstitutionally placed in administrative segregation after tangling with another
inmate. Among other things, Kelley claimed he
was suffering discrimination on account of his
“homosexual beliefs” and that the prison officials “have attempted to crush freedom of
speech and the social beliefs and lifestyles of
homosexual, bisexual, or transsexual individuals,” but the court concurs with District Judge
Chambers that Kelly failed to allege facts to
support these claims. The bulk of the opinion
deals with procedural issues, most notably Kel-
173
ly’s tendency to make new allegations and raise
new issues at each stage in the appeals process,
overlooking the requirement of exhausting
remedies by raising all claims at the earliest
stage.
Minnesota — District Judge Joan N. Ericksen approved a report by Magistrate Susan
Richad Nelson, recommending granting a motion to dismiss a complaint by Paul Jones, a federal prison inmate, against a prison health care
worker who Jones claims mistreated him in the
context of rendering care. Jones v. Polzin, 2006
WL 2457396 (D. Minn. Aug. 23, 2006). Jones
complained of rectal bleeding; he claims Polzin
delayed in providing assistance, then subjected
him to two minutes of uncomfortable anal probing and then accused Jones of engaging in “perverse homosexual activity.” Jones alleges that
Polzin spread this allegation around, thus revealing Jones’s sexual orientation to other inmates resulting in harassment and abuse. The
court found that Polzin enjoyed qualified immunity from Jones’s 8th Amendment suit, and
that, on the merits, Jones’s allegations were insufficient to make out an 8th Amendment “deliberate indifference” claim.
Missouri — An openly gay Missouri man suffered summary judgment and dismissal of his
sexual harassment and retaliation claims
against his employer in Robertson v. Budrovich
Excavating, Inc., 2006 WL 2460794 (E.D.
Mo., Aug. 23, 2006). Terry Robertson worked
as a heavy equipment operator on construction
sites. He lived with two other gay men and was
not closeted at work. According to his allegations, he suffered occasional nasty or homophobic remarks, from co-workers as well as employees of other contractors at the construction
sites. His employer had a sexual harassment
policy, and Robertson sought to invoke it after
getting fed up with the harassment. The supervisor told employees to leave Robertson alone,
and this seemed to work. But there were recurring incidents, including some nasty graffiti of
undetermined source. At one point, after Robertson had been complaining about mistreatment, he was not given any new work assignments for several days, which he construed as
retaliation, although work records showed that
other full-time employees had average fewer
hours of work over the time period the court
considered relevant for comparative purposes.
One way that many courts dispose of these
kinds of cases is to assert that an employee harassed because of his sexual orientation does not
state a sex discrimination claim, but District
Judge E. Richard Webber did not take this
route, instead going through the factual allegations and concluding that the conduct about
which Robertson was complaining was neither
severe nor pervasive enough to affect his terms
and conditions of employment, and thus this
was not actionable harassment. He noted that
management had a policy in place and had
174
been responsive in following up on Robertson’s
complaints, which would normally insulate a
company from liability for co-worker harassment. Irritation and hurt feelings are not
enough to make a federal case of sex discrimination.
New York — Eastern District — District
Judge Dora L. Irizarry, ruling on motions to dismiss or for summary judgment in Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 2006 WL 2336584
(E.D.N.Y., Aug. 11, 2006), opined that the College of Staten Island’s refusal to extend formal
recognition to a Jewish fraternity on the ground
that it denied membership to women might violate constitutional associational rights of the
fraternity members, and granted plaintiffs’ motion for a preliminary injunction ordering the
school to extend recognition pending an ultimate determination on the merits. Irizarry relied, among other things, on the Supreme
Court’s First Amendment associational ruling
in Boy Scouts of America v. Dale, 530 U.S. 640
(2000), which upheld the right of the Boy
Scouts to dismiss a gay Assistant Scoutmaster
despite a state law banning sexual orientation
discrimination.
Pennsylvania — Eastern District — In Marcavage v. City of Philadelphia, 2006 WL
2339261 (E.D. Pa., Aug. 9, 2006), District
Judge Petrese B. Tucker found that city police
officers may have violated the constitutional
rights of an anti-gay street preacher by placing
restrictions on where he could fulminate during
various public events, including Gay Pride
events. Although Judge Tucker denied a motion
for summary judgment by the plaintiff, the court
also denied in part the defendants’ motion for
summary judgment due to the existence of disputed facts concerning the restrictions placed
on Marcavage, who insists that he has a “Biblical mandate” to educate people about “the sinful nature of our country,” which, according to
him, includes “sexually oriented businesses,
homosexuality and abortion.” The case ultimately would come down to a balance between
the public order concerns of the city and Marcavage’s right to expound his views effectively
in public.
Washington — U.S. District Magistrate J.
Kelley Arnold issued an opinion on July 14 in
Dack v. Gatchell, 2006 WL 2034427 (W.D.
Wash.), rejecting a transsexual prison inmates
claims that he had suffered unconstitutional
discrimination at the hands of a particular
prison officer and others in the prison. The evidence established to Magistrate Arnold’s satisfaction that at the relevant times prison staff did
not know that Norman Dack was transsexual,
and that he was placed in administrative segregation in response to perceived threats against
him for, among other things, excessive touching
of other male inmates. The court, noting the potential for liability if prison administrators were
September 2006
deliberately indifferent to danger to an inmate,
pointed out that Dack was placed in administrative segregation in reaction to threats against
him.
Equal Employment Opportunity Commission
— A gay man employed as a transportation security screener by the Transportation Security
Administration (TSA) of the Homeland Security Department has brought to our attention a
ruling by an administrative law judge on his
claim of hostile work environment in violation
of federal law. The John Doe complainant asserted that the hostility to him was based on his
race (white), religion (Jewish), age (50) and
sexual orientation (gay). The charge recited
various ways in which he claimed to being singled out for criticism and adverse treatment.
Administrative Judge William Macauley’s May
22 ruling asserted that the hostile environment
claim based on sexual orientation “does not
state a claim pursuant to 29 C.F.R. sec.
1614.109(b), ” the rules and regulations promulgated by the EEOC for enforcement of federal
discrimination statutes. This statement tracks
case law holding that federal statutory employment discrimination provisions do not forbid
sexual orientation discrimination as such (although some cases have upheld actions for hostile environment based on failure to comply
with gender stereotypes, which in some cases
have involved gay plaintiffs). Macauley analyzed the complainant’s claim based on other
alleged grounds of discrimination, and found
that the allegations fell short of the requirements to state a claim. “In the instant matter,”
he wrote, “putting aside the credibility of his allegations, I find that Complainant is not aggrieved. To state a claim, a Complainant must
allege a present harm or loss on a protected basis with respect to a term, condition, or privilege
of employment for which there is a remedy. The
claims before me are generalized grievances
against the manner in which Complainant’s supervisors have managed him. A complainant
cannot pursue a generalized greivance that
members of one protected group are afforded
benefits not offered to other protected groups,
unless he further alleges some specific injury to
himself as a result of the alleged discriminatory
practice.” Macauley asserted that Doe had
failed to show that his ratings had been lowered
or he had been disciplined during the relevant
period, or that any of the conduct he complained about was motivated by his race, religion, or age. Of course, once Macauley put sexual orientation out of the case, all evidence as to
that would be treated as irrelevant. But we wonder whatever happened to the Equal Protection
Clause as it applies to government employment, or, for that matter, to the Executive Order
issued during the Clinton Administration and
pointedly not revoked by President Bush which
bans sexual orientation discrimination in the
federal sector. The John Doe plaintiff is seeking
Lesbian/Gay Law Notes
representation to mount an appeal of this ruling, and has contacted LGBT public interest
law firms, but so far without result. “Doe” v.
Chertoff, EEOC Hearing No. 520-200600081X, TSAF 04 0909 (EEOC, NY District
Office). A.S.L.
State Civil Litigation Notes
Iowa — Polk County Judge Robert Hanson
ruled on August 9 that a group of state legislators who sought to intervene in a lawsuit challenging the refusal of the state to allow samesex couples to marry had no standing to do so.
“Whether or not constitutional claims are valid
is a matter of judicial determination, not legislative,” wrote Judge Hanson, according to a report by 365Gay.com. The only named defendant in the lawsuit is Polk County Recorder Tim
Brien, who had denied marriage licenses to the
plaintiff couples, who are represented by
Lambda Legal.
Maryland — The Maryland Court of Appeals announced that it will accept a direct appeal in Deane v. Conaway, 2006 WL 148145
(Maryland, Baltimore Cir. Ct., January 20,
2006) (not officially published in A.2d), in
which the trial judge ruled that denying the
right to marry to same-sex couples violates the
state constitution. The government had appealed to the intermediate appellate court, the
Court of Special Appeals, but had petitioned
the top court for expedited review. The case will
be argued in December. Associated Press, July
27. The next day, the Court of Special Appeals
issued an opinion explaining its decision announced on March 11 rejecting three motions
for intervention that had been filed in the case.
Duckworth v. Deane, 2006 WL 2084667 (Md.
Sp. App., July 28, 2006). The motions were
filed on behalf of a Maryland county clerk, a
group of state legislators, and a Baltimore citizen. The court found that the state could provide an adequate defense for the marriage statute, and that none of the proposed intervenors
had standing to participate in the case as private parties. Duckworth, the clerk, rested his
standing on being an official charged with issuing marriage licenses, and thus personally affected by the outcome, but the court concluded
he had no right to participate as a private party
represented by his own private counsel, since
he was affected only in his official capacity, for
which representation by the Attorney General,
who is defending the case, was appropriate.
The legislators and the Baltimore citizen do not
have any interest distinct from all other citizens
of the state.
Massachusetts — In May’s Case, 2006 WL
2423019 (Mass. App. Ct., Aug. 24, 2006), the
appeals court reversed and remanded an adverse benefits determination by the Department of Industrial Accidents reviewing board
in a case involving an African-American les-
Lesbian/Gay Law Notes
bian correctional officer at the Framingham
prison, who suffered emotional distress which
she alleged arose from workplace harassment
after she had turned in some fellow officers for
rules violations. The administrative judge may
have misinterpreted the testimony of the expert
medical witness as to the causes of Ms. May’s
emotional distress, as he testified that her belief
that she suffered adverse consequences because of her race, gender and sexual orientation
may have contributed to her distress. The appeals court concluded that the medical testimony supported her claim that her emotional
distress was job related.
New Jersey — The New Jersey Appellate Division ruled in DeCamp v. N.J. Department of
Corrections, 902 A.2d 357, 386 N.J. Super. 631
(July 27, 2006), that a Department of Corrections Hearing Officer erred in upholding discipline of a transgender inmate for fighting without taking account of the inmate’s self-defense
testimony. According to inmate Michael DeCamp, who has had some of the treatment associated with gender reassignment but not all and
was confined in a men’s prison, he had continuing problems with another inmate who was harassing him, and had reported these problems to
prison authorities. Then, when they got into a
fight provoked by the other inmate’s attack, DeCamp found himself the subject of disciplinary
proceedings within the prison. Prison authorities did not want to here his justification for his
conduct, even though the other inmate admitted to being the aggressor. “In the absence of a
regulation prohibiting it,” wrote Justice Fuentes, rejecting the state’s argument that there are
penological reasons for prohibiting prisoners
from fighting in self defense while incarcerated
to which the court must defer, “we now hold that
in cases charging an inmate with the prohibited
act of fighting another person, the hearing officer adjudicating the matter must carefully consider a proffer of self-defense, and if established, exonerate the individual charged with
the infraction. When an inmate raises selfdefense as an issue, the hearing officer must
consider this defense, and make specific findings in support of his/her ultimate decision.”
New York — In a cryptic memorandum opinion, the N.Y. Appellate Division, 1st Department, unanimously reversed an order by N.Y.
County Family Court Judge Sheldon M. Rand
that would have directed the Administration for
Children’s Services to arrange for the petitioner,
a 20 year old minor in foster care, to have a sex
change operation. In re Brian L., also known as
Mariah L. v. Administration for Children’s Services, 2006 WL 2434931, 2006 N.Y. Slip Op.
06302 (Aug. 24, 2006). From the brief comments by the court, it appears that the Commissioner of ACS turned down Brian’s petition for a
sex-change procedure, and was ordered to arrange the operation by Judge Rand. According
to the Appellate Division memorandum, “the
September 2006
record is silent as to any basis or rationale for
such denial. Furthermore, the Family Court
should determine whether a fact-finding hearing is warranted once the Commissioner articulates the reasons for denying petitioner’s request.” In effect, the court decided that the
appeal was not ripe for adjudication because
the record was so bare that it could not exercise
any judgment in evaluating the appropriateness of the Commissioner’s denial. A.S.L.
Criminal Litigation Notes
California — In People v. Smith, 2006 WL
2383953 (Aug. 18, 2006), the California Court
of Appeal, 4th District, affirmed a guilty verdict
against Curtis Edward Smith, who had viciously assaulted his wife based on his belief
that she is a lesbian. Acting Presiding Justice
Hollenhorst sets out the grim details in his
opinion for the court, which did require some
adjustment to the sentencing but affirmed the
verdict on counts of inflicting corporal injury on
a spouse, attempted premeditated murder, kidnaping, making criminal threats, and residential burglary. One interesting facet of the case
was Hollenhorts’s response to Smith’s argument that he could not be prosecuted for burglary for breaking into his own house. At the
time, Smith was under a court order to stay
away from his wife and was not residing in the
house; under the circumstances, California
precedents supported the prosecution.
California — Jaron Chase Nabors, a defendant in the murder of transgender teen Gwen
Araujo, was sentenced to eleven years in state
prison by a Hayward Superior Court Judge on
August 25. Nabors had accepted a plea agreement in exchange for testifying against codefendants Michael Magidson, Jose Merel and
Jason Cazares. Magidson and Merel were convicted of second degree murder a year ago and
sentenced to 15 years to life; Cazares agreed to
six years in state prison for pleading no contest
to involuntary manslaughter, after a jury failed
to reach unanimity during his murder trial.
Alameda Times-Star, Aug. 26.
District of Columbia — The District of Columbia Court of Appeals, the equivalent of a
state supreme court, sustained the conviction of
Stuart Shepherd on charges of attempted cruelty to animals and assault arising from his
sidewalk confrontation with two women (whom
he perceived to be lesbians) out walking their
dog. Shepherd v. United States, 2006 WL
2283995 (D.C.App., Aug. 10, 2006). Shepherd
became angry, he claimed, because the two
women and the dog were blocking his way. According to the evidence against him, he reacted
by using his left forearm and shoulder to hit one
of the women in the chest as he said, “you fucking dikes, get off the sidewalk,” and when she
asked why he was hitting her, he responded:
“Lesbians get off the sidewalk. Dikes get off the
175
sidewalk.” As the encounter escalated, their
dog started barking, and it is charged that he
kicked the dog. Shepherd was prosecuted under the District’s Bias-Related Crimes Statute
and convicted of assault and attempted cruelty
to animals. On appeal, he claimed the evidence
did not support his conviction, and that the
Bias-Related Crimes Statute was unconstitutional. The court found that it did not have to
reach his constitutional objections to the statute, because the trial judge did not apply the
sentence-enhancing features of the statute,
merely convicting him of assault and attempt
and imposing the authorized sentences for
those crimes. The evidence did reveal a backstory to Shepherd’s motivations. After a police
officer told him why he was being arrested, he
responded: “My wife was a lesbian, and I had to
put up with that shit for 25 years. Damn right,
I’m homophobic... That judge gave that lesbian
bitch my children.” Bitter, bitter....
New Jersey A two-judge New Jersey Appellate Division panel reversed the conviction of a
gay man for public lewdness arising from a police park string operation at State Line Lookout
New Jersey in State v. Mamone, 2006 WL
2237733 (N.J. Super. Ct., App. Div., Aug. 7,
2006) (not officially published). The trial
judge, Steven J. Zaben, credited testimony of
police officer Thomas Rossi that the defendant
pulled out his penis unbidden in Rossi’s presence, and that Rossi was a non-consenting person who was “affronted or alarmed” as required
by the statute. According to Zaben, Rossi was
credible because he had nothing personal at
stake, whereas the defendant, who claimed that
Rossi led him to a secluded area and then
prompted him to take out his penis, was not
credible because he was trying to get out of being convicted. The appellate court thought this
quite ridiculous as a way of determining credibility, as such methodology meant that police
officers are always to be believed while defendants are never to be believed. Furthermore, the
panel pointed out, even the trial judge found
based on the testimony that nobody else was in
the secluded vicinity where the alleged act occurred, and that the officer had made hundreds
of arrests, filing identically worded reports
about them, so could hardly claim to be “affronted or alarmed.” In other words, a police
park sting operation that relies on police officers enticing gay men into thinking they have
found a willing partner and then prompting
them to expose themselves will not result in a
sustainable public lewdness conviction. ••• A
report on this case by Duncan Osborne in Gay
City News (Aug. 10) gives more details on the
case. We received a letter from a LeGaL member who has worked on the case indicating that
the surrounding circumstances of the trial
showed significant bias by Judge Zaben.
Ohio — In State v. Vazquez, 2006 WL
2336315 (Ohio App., 2nd Dist., Aug. 11,
176
2006), the court upheld the rape conviction of
Felipe D. Vazquez, who was charged with raping
a woman he had met in a lesbian bar and pursued to a coffee shop after closing hours, ultimately forcing her to have sex with him in her
car. Vazquez claimed the sex was consensual,
but the court found that the evidence before the
jury supported the verdict. However, the case
was remanded for resentencing because the
trial judge had followed an evidentiary scheme
that had since been declared unconstitutional
because it deprived defendants of their full entitlement to trial by jury in violation of the U.S.
Supreme Court’s recent decision in Blakely v.
Washington, 542 U.S. 296 (2004).
Texas — The Court of Appeals in Austin rejected a constitutional challenge to a statute
that makes it a crime for primary and secondary
school employees to have sex with students enrolled at the school where they work. Rejecting
a claim by a “student activities/recreation assistant” at San Marcos Baptist Academic that
the constitutional liberty identified in Lawrence
v. Texas protected his right to have sex with a
student who was old enough to consent to sex
under state law, the court found that there were
rational policy reasons for the state to forbid
such conduct (except, of course, for sex between spouses, an exception recognized in the
statute). Ex parte Morales, 2006 WL 2032487
(Tex. App. — Austin, July 21, 2006).
Texas — In In the Matter of G.G., 2006 WL
2032267 (Tex. App. — Austin, July 21, 2006),
the court of appeals affirmed a determination of
the Travis County District Court that a teenage
boy who participated with his brother and two
friends in the terrifying gay-bashing of Kyle
Miller should be removed from his home and
remanded to the custody of the Texas Youth
Commission (TYC) for a determinate sentence
of seven years. Judge Jan P. Patterson’s opinion
for the court presents in horrifying detail the sequence of events one Saturday night and Sunday morning as G.G. and his compatriots went
to a gay bar in Austin and got Miller to invite
them to his apartment, where they beat, tortured and robbed him, threatening him with
death if he reported the crime to police. For his
part in those events, defendant was convicted of
aggravated assault and aggravated robbery.
G.G. argued that his good behavior during the
pendency of the trial justified allowing him to
remain at home. The court found that he had not
attended counseling, had not accepted any responsibility for his part in the incident, and
would not obtain the necessary treatment for his
psychological problems if he was allowed to remain at home.
Texas — The Court of Appeals in Tyler affirmed the conviction and life sentence for
Keith Patrick McKay, convicted of aggravated
sexual assault, injury to an elderly individual,
burglary of a habitation, and burglary with intent to commit an assault, despite his claim on
September 2006
appeal that the trial court erred in allowing a
police officer to testify that his main alibi witness was his “boyfriend.” McKay v. State of
Texas, 2006 WL 2106981 (July 31, 2006) (not
officially reported). The elderly victim of an attempted burglary and assault (that resulted in
significant injuries) positively identified
McKay as the person who committed the acts.
McKay’s main defense was the testimony of an
alibi witness, James Hackett, who testified that
McKay was at his house during the time when
the victim was assaulted. On crossexamination, Hackett was asked the nature of
his relationship with McKay, and testified that
McKay was like a nephew to him. When asked
if the relationship was closer than that, he said
that was “not true.” The state called a rebuttal
witness, a police officer who testified that on a
previous occasion he answered a disturbance
call at Hackett’s house, where Hackett told him
that “he and his boyfriend (Appellant) had gotten into an argument and Appellant had done
some damage.” The court allowed this testimony over protest. The court of appeals, in an
opinion by Justice Bill Bass, said “The legitimate basis for the introduction of evidence of
the prior statement was its impeachment value
as a prior inconsistent statement indicating a
closer emotional tie between the witness and
Appellant than the witness had admitted. The
word ‘boyfriend,’ as understood in this context,
connotes a deeper emotional bond than that between an uncle and a nephew, a bond much
more likely to influence the witness’s testimony
and raise greater doubts about his veracity.”
The court found that the probative value of this
evidence was “not substantially outweighed by
the danger of unfair prejudice,” and rejected
the appeal.
Texas — The Court of Appeals of Texas in
Waco affirmed the murder conviction and life
sentence imposed on Ifren Escobedo, who
killed a gay man who followed him home to
have sex. Escobedo v. State of Texas, 2006 WL
2067929 (July 26, 2006). According to the
opinion by Justice Felipe Reyna, Escobedo met
the victim, Gerald Curley, at a park, and Curley
followed Escobedo to a friend’s house. Although Escobedo asked Curley to stop following him, Curley persisted and followed Escobedo to his apartment, where they had sex.
Afterwards, Escobedo asked Curley to leave,
and, when Curley refused, strangled him to
death with an electrical cord. Escobedo, who
had formerly been married, went and confessed
the act to his ex-wife, then returned to his apartment to retrieve Curley’s body, stuff it into Curley’s car, and drive it to an isolated area, where
he abandoned it. At trial, Escobedo did not
deny any of this, arguing instead that it was a
crime of sudden passion and thus excusable.
The jury didn’t buy that, obviously, and on appeal the court said the jury could have reached
its guilty verdict based on the evidence pre-
Lesbian/Gay Law Notes
sented. The opinion notes that the law on “sudden passion” had changed from the time this offense was committed. The former law
considered this as part of the case in chief,
while a revision to the law makes it relevant
only at the penalty stage. The court reviewed
Escobedo’s appeal based on the former rules in
effect at the time of his trial.
Texas — The San Antonio Express-News
(Aug. 31) reported that a federal jury had convicted Dean Gutierrez, a 16–year San Antonio
police department veteran who was fired after
being indicted, for sexually abusing a transsexual while on duty. The victim, Gabriel Bernal,
who lives as a woman under the name Starlight,
claimed that Gutierrez forced her into his patrol
car, drove her to a remote area, and sexually assaulted her. During closing arguments in the
trial, the defense argued that Gutierrez had
consensual oral sex with Bernal, but denied the
charges of rape and non-consensual sodomy.
The judge set sentencing for December 1 and
ordered that Gutierrez be arrested and confined
pending sentencing, as required under Texas
law for convicted sex offenders who are presumed dangerous to the community. A.S.L.
Legislative Notes
Federal — Unintended beneficiaries? On Aug.
18, the Los Angeles Times and San Francisco
both ran articles noting that the new pension
law passed by Congress and signed by the
President would have a beneficial effect for
some same-sex couples, undoubtedly purely
incidential to its intended benefits for others.
Under the new provisions, “nonspousal beneficiaries,” including same-sex partners, will be
able to defer paying taxes on inherited retirement plans by rolling them over into retirement
accounts. The measure goes into effect on January 1, 2007. It was intended by Congress generally to benefit workers who name relatives other
than their spouses as beneficiaries under pension plans. People who have designated a
nonspousal beneficiary in their retirement
plans prior to this date will also be covered if
they die after the effective date.
California — On August 29, Governor Arnold Schwarzenegger signed into law SB 1441,
the Nondiscrimination in State Programs and
Activities Act, which was authored by Senator
Sheila Kuehl (D-Santa Monica). The measure
prohibits discrimination in state operated or
funded programs on the basis of actual or perceived sexual orientation or gender identity.
According to a press release issued by Equality
California, the gay rights lobbying group that
accorded a high place on its legislative agenda
to this measure, the new law “protects all Californians who utilize public services such as police and fire protection, financial aid, social
services and food stamps. The measure also
protects those associated with a person receiv-
Lesbian/Gay Law Notes
ing services who has, or is perceived to have,
any characteristic covered by the bill.”
California — Los Altos — The City Council
voted on July 25 to reverse a rule it had previously adopted banning city proclamations related to sexual orientation. The council had
adopted the rule after the Gay Straight Alliance
of Los Altos High School had requested that the
council approve a proclamation declaring June
7 Gay Pride Day in the city. The council had rejected such requests the previous two years, after having approved such a request the first
time it was presented, and the rule was suggested as a way of stopping the requests, which
put councilmembers on the spot. Then Mayor
David Casas had argued that city proclamations should be limited to city businesses or to
honor citizens for good works, and a majority of
the council at that time agreed. Media backlash
was swift and furious, creating the image of an
anti-gay city government. Under the new rules
adopted on July 25, requests for proclamations
are to be considered by the mayor, not the council. San Jose Mercury News, July 26.
Georgia — The city of Doraville, a suburb of
Atlanta, enacted an ordinance on Aug. 7 by a
3–2 vote of its city council to offer domestic
partnership benefits to city employees. This action brought it into line with neighboring suburbs of Decatur and Pine Lake. The city has
120 employees, and the number who will apply
for the benefit is not known. Reporting on the
development on Aug. 25, Southern Voice observed that seven municipalities in Georgia
provide domestic partnership benefits for
same-sex partners of employees. Several other
communities are reported to be debating enacting such policies.
Massachusetts — After word spread that Gov.
Mitt Romney, a conservative Republican with
presidential ambitions, was considering abolishing a Commission on Gay and Lesbian Youth
that had been created by executive order by one
of his predecessors, the state legislature passed
a bill establishing an independent commission
for the same purpose. Romney vetoed the bill,
but the veto was overridden. Two days later, saying that the gubernatorial commission had been
rendered redundant, the governor abolished it.
A highlight of the legislative debate on the override, reported by the Boston Herald on July 22,
was a complaint by a straight legislator who opposed the override that he was being persecuted in the legislature by an openly gay member who accused him of “feeding hate.” Said
Philip Travis, in response to remarks on the
floor by Rep. Cheryl Coakley-Rivera after he
had spoken, “I will not be put down by someone
who is from the other persuasion who thinks
that I am a bigot. You’re picking on me as a
straight person and I resent that.” Both legislators are Democrats, according to the Herald report.
September 2006
Michigan — Kalamazoo County Commissioners voted Aug. 14 to add “a person’s political affiliation, sexual orientation or gender
identity” to the list of prohibited grounds for
discrimination in the county ’s nondiscrimination policy. This reversed a negative
vote from two years ago. The report on the
measure in the Kalamazoo Gazette (Aug. 17)
does not make clear whether the policy applies
only to the county’s own policies or also binds
private entities in the county.
Oregon — Hillsboro — Hillsboro City Council members voted July 15 to approve a ban on
discrimination based on sexual orientation and
gender identity in employment, housing and
public accommodations. The ban goes into effect 30 days after enactment. The Oregonian
(Aug. 17) reported that the measure makes
Hillsboro the ninth municipality in the state to
have adopted an explicit ban on such discrimination, the others being Portland, Salem, Beaverton, Bend, Ashland, Lake Oswego, Eugene,
and Lincoln City. The continuing failure of the
state legislature to pass such a measure is striking in light of this local legislative record.
A.S.L.
Initiatives & Ballot Questions
Arizona — On August 10, Maricopa County Superior Court Judge Douglas Rayes rejected a
challenge to a pending anti-marriage amendment, rejecting the argument that it violated
state law by posing multiple questions to voters,
according to a report by 365Gay.com. The challengers, Arizona Together, an organization opposing the amendment, claimed that it addressed three separate issues: marriage, civil
unions, and partner benefits. The proposed
measure, in addition to defining marriage as the
union of one man and one woman, also would
prohibit the state or local governments from
providing marriage-like legal status to any
other relationships. According to Judge Rayes,
the various parts of the proposed amendment
“have but one purpose, the protection of marriage by preventing redefinition and extension
of official status to marriage substitutes.” State
Representative Krysten Sinema, chairwoman
of Arizona Together, announced that the ruling
would be appealed to the Arizona Supreme
Court. At the end of August, news sources reported that the Arizona Supreme Court had declined to upset Judge Rayes’s ruling, but a written opinion had not been issued by September
1.
Colorado — The number of questions about
legal rights of same-sex couples to appear on
Colorado ballots in November has been reduced from four to two. Proponents of a measure to outlaw any legal status for same-sex couples failed to obtain sufficient signatures by the
statutory deadline, and after their proposal was
eliminated, supporters of another ballot meas-
177
ure intended to change the state Constitution to
allow registered domestic partners some of the
same rights as married couples was pulled by
its supporters.. The remaining measures includes initiative proposal to define marriage as
solely the union of one man and one woman,
and the other measure proposed by the legislature, which would create a statute allowing
same-sex couples to register their unions and
grant them many rights and responsibilities
now given to married couples. Supporters of the
two initiatives submitted more than 130,000
signatures in support of each of these measures; 68,000 valid signatures are necessary to
qualify for the ballot. If the remaining measures
are approved by voters, same-sex couples in
Colorado will be able to register their partnerships as civil unions with many rights, but marriage will be off the table barring a new constitutional amendment or a federal constitutional
decision. Rocky Mountain News, Aug. 8; Associated Press, Aug. 22.
Illinois — Election officials announced that
supporters of a proposed referendum on samesex marriage had not gathered sufficient valid
signatures to qualify the measure for the ballot.
The proposed question would have asked voters whether the state should amend its constitution to ban same-sex marriage. (A statute already bans same-sex marriage in the state, but
supporters of the ballot measure expressed fear
that courts might declare the law unconstitutional.) The supporters of the referendum filed
suit in federal court, claiming that the state procedures for qualifying a ballot measure were
themselves unconstitutionally burdensome.
Under the rules, election officials review a sampling of the submitted signatures, and the
measure only qualifies for the ballot if at least
95 percent of the signatures reviewed are valid.
In this case, they said, only 91 percent of the
submitted signatures were valid. New York
Times, Aug. 13.
Ohio — Cincinnati — Supporters of a proposed ballot question to repeal the gay rights
amendment that was added to the city’s human
rights law recently withdrew the proposal after
admitting that there were fraudulent signatures
on their petitions, according to a report in the
Cincinnati Enquirer published Aug. 16. Phil
Burress, chair of Equal Rights Not Special
Rights, “said he made the decision Tuesday after it became obvious that many signatures on
the petitions were forgeries. His group had collected just two signatures more than the minimum 7,654 needed to force the referendum.”
The Board of Elections had scheduled a hearing at which challenges to signatures could be
made. Among the signatures found on the petitions were those of Cuban President Fidel Castro, Cincinnati Reds owner Bob Castellini, and
other local celebrities who denied they had
signed such petitions. A.S.L.
178
Law & Society Notes
ABA Supports Transgender Rights — The
American Bar Association House of Delegates,
holding its summer meeting in Honolulu early
in August, adopted a policy statement “urging
federal, state and other governments to enact
legislation prohibiting discrimination on the
basis of gender identity or expression in employment, housing or public accommodation,”
according to a report published on the ABA’s
website on August 29.
Asylum Study We could have told them
that… The Transactional Records Access
Clearinghouse, identified as a research group
connected to Syracuse University, undertook a
wide-ranging study of Immigration Judge decisions in asylum cases in the U.S., and concluded that people who try to litigate their asylum cases without legal counsel have almost no
chance of winning (even if they come from
countries where it is well established that members of their “particular social group” are vigorously oppressed), and that there are extremely
wide variances in the rates of asylum grants by
different judges. Some judges grant asylum in
only a tiny percentage of the cases before them,
while others are much more liberal in granting
asylum. The study basically replicated the conclusions of a report last year by the U.S. Commission on International Religious Freedom.
From reading and reporting on asylum claims
by LGBT petitioners, we do not find these conclusions astonishing. Several federal appeals
courts have begun sharply questioning the performance of Immigration Judges, most notably
the 3rd Circuit in Philadelphia, which recently
remanded two gay asylum petitions in cases
where the IJ’s reached incredible negative decisions in light of the evidence presented, and
the 7th Circuit, where former chief judge Richard Posner has stated that the performance of
IJ’s has “fallen below the minimum standards
of legal justice.” Supposedly, Attorney General
Alberto R. Gonzalez, usually named as the defedant in appeals from IJ rulings, has called for
a “comprehensive review” of the IJ court system, but in light of the Bush Administration’s
attitude about asylum, he probably thinks that
IJ’s are granting too many petitions… N.Y.
Times, July 31.
Boy Scouts in Philadelphia — The Boy
Scouts of America (BSA) persists in its policy of
formally excluding gay people from membership or leadership positions, and jurisdictions
that ban sexual orientation discrimination consider to struggle with what to do about longstanding arrangements concerning public facilities. In Philadelphia, where the BSA has occupied a city-owned building since 1928 at
bargain rates, Mayor Street has announced that
if the BSA does not denounce the national
organization’s discriminatory policy, it will
have to pay fair market rent for the building or
September 2006
vacate it. On July 24, the Fairmount Park Commission, the actual owner of the building, voted
to back the city’s decision, according to a July
25 report in the Philadelphia Inquirer. The national BSA was threatening to sue, and the local
organization was agonizing over what to do,
having preliminarily agreed in negotiations
with the City Solicitor to adopt a nondiscrimination policy in accord with the city’s
human rights ordinance, which bans sexual orientation discrimination, but then having dismissed an 18–year-old scout who publicly
came out as gay. Current City Solicitor Romulo
Diaz, who was not in office when the policy was
negotiated, claims that it is ambiguous and not
in sufficient compliance with city law. Said
Diaz, “I would like to hear form the local scouting council: Do they discriminate? Do they intend to continue discriminating against openly
gay scouts?... The ball is in their court.”
Strange Bedfellows? — The National Gay
and Lesbian Chamber of Commerce announced that it had entered into a partnership
with Wal-Mart Stores, Inc., as part of WalMart’s effort to reach out to LGBT consumers
and businesses. Wal-Mart, the largest retailer
in the U.S. whose expansion plans include an
increased emphasis on new urban stores, has
apparently determined that building a good relationship with the LGBT community makes
sense as a part of its business strategy, according to a Cox News Service story that appeared in
many newspapers on Aug. 24, including the Atlanta Journal and Constitution online edition.
The usual critics of anything gay-affirmative responded, of course, with Tony Perkins of the
Family Research Council asserting that this
will lose Wal-Mart customers “on Main Street
America, where most Wal-Mart stores are located.” (Shows how out-of-touch Perkins is;
most Wal-Mart stores are not on Main Street,
but rather outside of traditional downtown business districts, and generally credited as having
killed off traditional small-town downtown
business districts due to their cut-rate price
competition.) Robert Knight, of Concerned
Women for America, accused Wal-Mart of
“validating the idea that homosexual activists
have the right to shake down corporations out of
fear of being called bigots.” Clearly, Knight was
reacting to an incomplete account of the story,
which relates that it was Wal-Mart that approached NGLCC and not the other way
around. A spokesperson for NGLCC related
that they informed Wal-Mart officials that they
would face criticism from right-wing groups,
but Wal-Mart did not seem phased by this. At
present Wal-Mart has a non-discrimination
policy that covers sexual orientation, but it has
not yet taken the step of a company-wide domestic partnership benefits policy, which is
“under consideration.” Indeed, Wal-Mart’s
employee benefits policies are at the heart of
criticism of the corporation by many pro-gay
Lesbian/Gay Law Notes
legislators and political candidates, who note
that many Wal-Mart employees lack basic
health insurance coverage due to the company’s minimalist employee benefits program.
Some jurisdictions have acted against WalMart with the employee benefits issue in mind.
It will be interesting to see whether right-wing
groups, already critical of Wal-Mart for selling
Brokeback Mountain videos in its stores, will
mount a full-scale boycott attempt, as they unsuccessfully tried against Disney recently.
Alabama Gay Legislator? — Patricia Todd,
an openly lesbian candidate who won a narrow
victory in a Democratic primary campaign for a
seat in the Alabama state legislature, survived
an interparty challenge to her victory. Todd,
who is white, contested the nomination in a district that has long had African-American representation and remains majority black by a slim
margin. She defeated an African-American
candidate, Gaynell Hendricks, who contested
the 59 vote margin that Todd obtained in a runoff after nobody had won outright in a more
crowded field in earlier voting. A powerful
African-American political leader engineered a
subcommittee vote to set the election aside on
the curious grounds that none of the candidates
had filed financial disclosures with the party
organization, a rule that nobody had followed
for years, but the party executive committee
overruled the subcommittee. Since the Republicans have not nominated a candidate in the
district, Todd will likely be elected and become
the state’s first openly-gay legislator. Interestingly, the objections to her were phrased entirely in terms of race.
Transgender Acceptance... How Times
Change — Administrators in the Batavia City
School District, near Rochester, N.Y., are rallying around a transgendered science teacher,
previously known to staff and students as a
man, who appears at the start of the new year
transformed as a woman. The school is preparing educational programs for staff and students
to facilitate the transition by educating everybody about the transgender phenomenon. The
district will allow parents to preview the educational materials and to request that their children not receive the instruction, but expectations are that most students will have the
lessons. The school superintendent, Richard
Stutzman, Jr., speaking with the Democrat and
Chronicle (Aug. 30), said that the staff, many
parents and the teachers’ union have been supportive of the teacher, and the president of the
board of education said that the board was
“100% behind Mr. Stutzman’s handling of the
project. We know it’s a sensitive issue.” This is,
of course, by stark contrast to the sometimes
hysterical way that transgendered teachers
were treated in earlier times, either by discharge from employment are an insistence that
they transfer to a school where nobody knew
them in their prior gender presentation. Educa-
Lesbian/Gay Law Notes
tional “experts” sometimes testified at discrimination trials in such cases that students
would be traumatized by the appearance of a
teacher in one sex after they had known him or
her in the other, but few make such arguments
today in light of common experience.
No More Catholic Adoptions in San Francisco? — Catholic Charities of San Francisco
will end its child adoption program in order to
avoid having to comply with the city of San
Francisco’s requirement that such programs
not discrimination on the basis of sexual orientation, thus joining church officials in Boston
who have terminated a Catholic adoption service there for the same reasons. The executive
director of Catholic Charities in San Francisco,
Brian Cahill, stated that the agency will develop a relationship with a statewide Internet
exchange called California Kids Connection,
run by an Oakland-based organization, and
make referrals to that organization rather than
handling adoptions itself. The archdiocese,
which did not want to end its own programs, felt
compelled to do so by directives from the Vatican, which has likened the placement of children with gay parents as being tantamount to
child abuse. A subsequent newspaper report
(San Francisco Chronicle, Aug. 27), indicated
that Catholic Charities would actually be able
to reach more children and assist in making
more placements by its new affiliation with
California Kids Connection, and hoped to sidestep the requirements of the Vatican pronouncement by serving as a referral and counseling agency rather than making placements
directly.
Taking on Don’t Ask, Don’t Tell — The Chicago Sun-Times reported on Aug. 23 that a
group of openly-gay Northwestern University
students had gone to a military recruitment
center and attempted to enlist in the Army Reserve “with cameras rolling and reporters present.” Military recruiters politely declined their
applications, observing that the current policy
is mandated by Congress and the students
should go to their elected representatives if
they wanted to change it. The newspaper reported that activists in 30 cities were planning
to undertake similar public actions, as part of a
campaign to publicize objections to the military
policy coordinated by a Virginia-based group
called Soulforce.
DP Benefits in the South — Progress Energy,
a major public utility based in Raleigh, North
Carolina, announced the adoption of a domestic
partnership health benefit plan for its unmarried workers in same-sex or opposite-sex relationships. The policy change had been requested by a lesbian employee of the company.
Raleigh Observer, Aug. 18.
Oklahoma Legislature Goes Gay? — The
Oklahoman reported July 26 that Al McAffrey,
an openly gay funeral director who is a member
of the Choctaw Nation, a Navy veteran and a
September 2006
former Oklahoma City police officer, had won
the Democratic primary to represent District 88
in the state legislature. No republicans filed for
the seat, so McAffrey is elected and will be the
first openly-gay elected official in the Oklahoma state house. McAffrey attributed his victory to his position on the issues, not to his sexual orientation. He won 51 percent of the vote in
a three-way race against an assistant attorney
general and a former state labor department
employee.
King of the Courts — Acknowledging a
founding mother of professional women’s tennis, the U.S. Tennis Association has renamed its
facility in Flushing Meadow Park, New York,
the Billie Jean King National Tennis Center.
The main arena in the Center is named for the
late tennis star Arthur Ashe, who was a good
friend of King. King achieved worldwide fame
for accepting the challenge to compete successfully with former Wimbledon champion
Bobby Riggs, and went on to co-found the allwoman’s pro tour. King subsequently came out
as a lesbian and has become an outspoken advocate for gay rights. Newsday, Aug. 28.
Gay Succession in Chicago — The Chicago
Tribune (Sept. 1) reported that the first openlygay member of the Illinois General Assembly,
Chicago North Side representative Larry
McKeon, will be succeeded by another
openly-gay politico, Gregory Harris, who like
McKeon is also open about being HIV+. Harris, chief of staff to Chicago Alderman Mary
Ann Smith, was designated by Democratic
Party officials to take McKeon’s place on the
November ballot after McKeon had announced
in July that he would not seek re-election.
There is no challenger from the Republicans to
seek election in a district dominated by the
heavily gay Chicago neighborhood. A.S.L.
Biology Wins Out; Highest British Court awards
custody to misbehaving birth mother over lesbian
co-parent
Finding that biological ties are the most important factor in deciding child custody questions,
unanimous five-judge panel of Britain’s House
of Lords Law Committee, the country’s highest
appeals court, ruled on July 26 in In re G,
[2006] UKHL 43, that children born to a lesbian couple should live with their birth mother,
even though she had defied a court order and
relocated the family without notice to her
former partner who had visitation rights. The
parties were referred to in the opinions by their
initials.
CG and CW lived together as a couple from
1995 until 2002. They were raising CW’s biological son, conceived using donor insemination from a prior relationship. They decided to
have children together, and CG, by far the
younger of the two, bore two daughters through
donor insemination.
179
In 2002 CW broke up the relationship by
forming a bond with a new lesbian partner and
moved out with her son. CG continued to live in
the former family home with their daughters.
CW had visitation by agreement, alternate
weekends and holidays. Then CG also acquired
a new partner, completed training for a new career, and desired to move with her partner and
daughters to a different city.
CW objected to this and filed the lawsuit,
seeking to have the daughters live with her and
her partner (with whom they had developed a
good relationship). CW obtained a court order
against the move pending determination of the
law suit. Defying the order, CG and her partner
bought a home in the new location and secretly
moved there with the daughters. CW had to use
a tracing service to locate them, and won an order from the Court of Appeal giving her residential custody, which CG appealed to the
House of Lords.
The Law Lords reversed. Following the British custom, all five judges wrote opinions, but
the only substantial opinion was by Baroness
Hale of Richmond. The others all wrote briefly
to state their agreement with her.
Unlike state laws in the United States, under
which lesbian co-parents frequently come to
grief in these types of disputes on grounds of
standing, the U.K. statutory law deems the best
interest of the child paramount and does not
impose a standing bar on “unrelated” psychological parents seeking custody or visitation.
However, Baroness Hale found that among
the factors considered important in determining the best interest of the child is the degree of
relationship to the contesting parties, and that
biological ties establish a strong presumption
in favor of residential custody for the biological
parent. According to past decisions, the presumption is strong enough that it would take
“compelling factors,” to quote one past ruling,
for a court to “override the prima facie right of
this child to an upbringing by its surviving
natural parent.”
Interestingly, U.K. courts phrase this in
terms of the child’s right to be raised by its biological parent, rather than as the right of a parent to raise a child, since the statute does not
recognize parental rights as such, emphasizing
solely the child’s rights and best interests.
While acknowledging that CG had acted
badly in removing her daughters with no notice
to CW and in defiance of the court order, and
also that CG’s motivations apparently included
a desire to terminate further contact with CW
(with whom the kids had bonded as a psychological parent, and also bonded with CW’s son
as a loving sibling), Baroness Hale pointed out
that once CW had re-established contact, CG
had been cooperative and had not raised obstacles to CW resuming visitation with the children.
180
Under these circumstances, the Lords felt
that the Court of Appeal had given inadequate
weight to the biological ties between the daughters and CG when it changed residential custody over to CW and gave CG only alternate
weekend and holiday visitation rights. Biology
trumps bad behavior in this case, according to
the U.K. Lords.
The opinion spoke respectfully of the lesbian
family unit, acknowledging the important roles
of CW and her son in the lives of her daughters,
and spoke of the importance of maintaining and
nurturing those ties. The dispute, according to
Baroness Hale, was solely about which parent
would provide the primary residence and which
would be limited to visitation.
On the other hand, the result seems to reward
inappropriate conduct by CG, and repudiates
the Court of Appeal ruling, which had been particularly sensitive to the politics of the situation; perhaps unduly so, in the view of the Law
Lords. A.S.L.
International Notes
United Nations — Louise Arbour, a former Canadian Supreme Court Justice who is the U.N.
Commissioner for Human Rights addressed the
human rights assembly of the International
Conference on LGBT Human Rights, held in
Montreal in connection with Outgames, an international athletic competition, on July 26. Arbour stated that gay people have a fundamental
right to privacy and the right to live free of violence. She said that there is “a genuine public
interest in preserving a space in which the state
must not intrude.” While Arbour was speaking,
a Dutch delegation to the conference announced that it would launch a petition calling
for official recognition of LGBT rights groups
by the U.N., which has resisted extending the
non-governmental organization (NGO) status to
gay groups that is required to participate actively in various UN activities. The U.S. has
joined together with various repressive regimes, particularly from Islamic republics, in
voting to block such status, purportedly on the
ground that some of the LGBT organizations
have in the past allowed affiliations with pedophile groups. Approximately 1500 people attended the conference.
Australia — Michael Cain, a gay man living
in Tasmania, has filed a complaint with the Tasmanian Anti-Discrimination Tribunal against
the Red Cross Blood Service, complaining that
his attempt to donate blood was refused because he had gay sex in the previous 12 month
period. Cain argues that the donation deferral
policy should be based on whether people had
safe sex rather than their sexual preference, according to an Aug. 22 report in the Mercury, a
newspaper in Hobart, Australia.
China — The Centre for Disease Prevention
and Control of Chaoyang District has created
September 2006
an internet forum for gay people to discuss issues of sexuality and disease prevention, according to an Aug. 15 report in China Daily,
which claimed this was the first time that the
government has backed a mechanism for allowing gay people to communicate with each other.
So far the forum has not been publicized other
than by word-of-mouth, but an official of the
Centre, Fu Qingyuan, said the Centre was considering launching a media campaign to bring
it to the attention of gay people who may be isolated from the grapevine. A report about the forum in the Aug. 14 issue of Beijing Times had
sparked an immediate jump in postings, however.
Germany BBC News reported on Aug. 8 that
a court in Stuttgart, Germany, has granted political asylum to a lesbian from Iran, and that
the court ruling stated that it was a binding
precedent for similar cases. The woman, who
was not named in the decision, traveled to Germany in 2003 and claimed she would face the
death penalty of she was returned to Iran. She
also told the court that she faced criminal punishment in Iran due to her refusal to wear a
headscarf.
Great Britain — The government has paid
nearly one million pounds into a compensation
fund for military person who were dismissed
because they were gay or lesbian since the
change in military policy that took place in
2000. According to a July 26 report in The Independent, the Ministry of Defence had state
that it faced 86 claims for compensation since
the ban was lifted. More than 850,000 pounds
has been paid out in compensation so far in response to 24 such claims.
Great Britain — A confidential settlement
agreement has been reached in an Employment
Tribunal case brought by gay police officer Neil
Bloomfield against the Hampshire Police, who
had banned him from wearing an earring while
on duty. Bloomfield claimed that he was discriminated against because other officers were
allowed to flout the rule against wearing jewelry
but he was not because he was gay. The police
force denied discriminating, but did admit that
comments made about Bloomfield by a sergeant were inappropriate and merited discipline. Daily Express, Aug. 16.
Great Britain — The Law Society issued a
report surveying the situation of gays in the legal profession in London. The report claims
that a “macho culture” in London’s City law
firms has “undertones of homophobia,” according to an August 29 story in the Financial
Times, but some attorneys interviewed downplayed this in favor of emphasizing the increased ability to practice law in big London
firms as an openly gay person.
Great Britain — Xbix.com, a news service
concentrating on sexually-oriented businesses,
reported on Aug. 30 that the British government
has announced its intention to propose legisla-
Lesbian/Gay Law Notes
tion to make possession of violent pornography
a felony punishable by up to three years in
prison. According to the news report, the proposed law would criminalize possessing pornographic material that features “violence that
was, or appeared to be, life-threatening or
likely to result in serious and disabling injury.”
Existing law forbids publication and distribution of such material, but the argument is made
that the law is not ideally effective so long as
there remains an active market for the stuff, so
outlawing its possession will help to discourage
its production. Similar arguments in the U.S.
have been used by the courts to sustain laws
banning the private possession of child pornography.
Latvia — Thirteen persons face administrative charges and one faces criminal charges after being arrested for attacking LGBT people
who attended a service at the Anglican Church
in Riga on July 22, according to press coverage
distributed by ILGA-Europe. The government
had banned a proposed gay rights march.
New Zealand — The Crown Law Office
opined that discriminating against somebody
because they are a transvestite, transsexual or a
cross-dresser would violate the Human Rights
Act prohibition on sex discrimination. The government sought the opinion after a transsexual
member of Parliament sought enactment of a
bill specifically outlawing gender identity discrimination. Attorney-General Michael Cullen
said that the Crown Law Office advised that
there was “no reason to suppose that sex discrimination would be construed narrowly to deprive transgender people of protection under
the Human Rights Act,” thus making the proposed bill, a potentially divisive measure, unnecessary. The Human Rights Commission had
previously taken a similar position respecting
its jurisdiction under the Act. Dominion Post,
Aug. 23.
Saudi Arabia — The Advocate reported online Aug. 16 that 20 young men were arrested at
an event that authorities characterized as a
same-sex wedding ceremony. About 400 people were attending the event, of whom 250 were
detained by police. Those arrested were
charged with “emulating women,” evidently a
severe offense in that country.
Scotland — In Glasgow, a senior firefighter
and eight younger colleagues have received official warnings for refusing to hand out fire
safety leaflets as ordered during a gay pride
march. Strathclyde Fire and Rescue, their employer, said that firefighters could not “pick and
choose” to whom they distribute safety information. Some of the firefighters rested their refusal on moral grounds, other to embarrassment
at being present in uniform at a gay pride event
and possibly becoming the subject of hostile remarks. The firefighters have been ordered to
participate in intensive diversity training, and
one watch manager is being demoted to crew
Lesbian/Gay Law Notes
manager with a significant loss in salary. Times
of London, Sept. 1.
Slovenia — The UPI reported July 24 that
Slovenia has approved a form of same-sex marriage but placed restrictions on the nature of the
ceremony available for same-sex couples. The
law limits the number of those attending such
ceremonies to the two partners and a local community registration official. The ceremony is to
be held in a state office, and no friends, relatives or other guests may attend. An application
for the registration ceremony must be filed 30
days in advance. The press report did not indicate whether these marriages carried all the
same rights as opposite-sex marriages or were
more like the registered partnerships found in
Scandinavia. The nation’s GLBT organizations
September 2006
welcomed the law as a step forward but called it
“insufficient.”
South Africa — The South African Broadcasting Company reported Aug. 16 that Patrick
Chauke, chair of the Parliament’s Home Affairs
Committee, has scheduled hearings for September on legislative proposals to implement
the Constitutional Court’s ruling from last year
that same-sex couples are entitled to be marry.
Chauke said he hoped a final Bill can go before
Parliament in October, well before the December 1 deadline set by the court. If the deadline
is not met, the court indicated in its original decision in Minister of Home Affairs v. Fourie, CCT
60/04 (Dec. 1, 2005), it would judicially alter
the common law definition of marriage for
South Africa, entitling same-sex couples to
181
marry without any legislative changes being
made. The African Christian Democratic Party
has called for a constitutional amendment to
overrule the court decision, but Chauke has
said that amending the constitution is “not on
the cards.”
Sweden — Sweden has registered partnerships for same-sex couples, similar to the system pioneered in Denmark and prevailing in
the Scandinavian countries, but the Parliament
is exploring the possibility of replacing the civil
partnership law by opening up the marriage law
to embrace same-sex couples. According to an
Aug. 26 on-line report by The Advocate, recent
polling shows a plurality of Swedes favoring
same-sex marriage, about 46% of those polled,
with only 31% stating opposition. A.S.L.
AIDS & RELATED LEGAL NOTES
Iowa Supreme Court Rejects Constitutional
Challenges to Law Criminalizing Exposure to
HIV Without Informed Consent
On August 4 the Iowa Supreme Court issued a
unanimous decision rejecting a variety of constitutional challenges to Iowa Code sec.
709C.1(1)(a), which makes it a serious felony
offense for somebody who is HIV+ to knowingly expose another to the virus through “intimate contact,” which is defined in the statute as
sexual contact that could transmit the virus.
Upholding the conviction of Adam Donald
Musser in State of Iowa v. Musser, 2006 WL
2244640, the court found that the statute survives strict scrutiny by advancing a compelling
state interest in the narrowest manner possible.
The court’s opinion, by Justice Marsha Ternus, is rather oblique in describing the facts of
the case, undoubtedly to protect the identity of
Musser’s victim, who is identified only as R.D.,
and whose gender is not specified but who appears to be female. (In a footnote, the court
mentions that Ternus was also convicted and
sentenced for having sex with several other victims without disclosing his HIV+ status, sentences that are being served concurrently while
the sentence in this case was added to be served
consecutively.) In this case, the court identifies
the type of “sexual contact” involved as “sexual
intercourse,” which in the context of this case
and the case reported directly following in this
newsletter, suggests that vaginal intercourse
took place rather than oral sex or anal intercourse. The victim has not tested HIV+.
Musser’s facial challenge to the statute first
focuses on the idea of compelled speech, that
the government may not compel individuals to
articulate particular messages. Musser argues
that the statute, in effect, compels HIV+ people to make statements to potential sexual partners revealing their HIV+ status, and is thus a
content-based regulation of speech. The state
argued that because informed consent is an af-
firmative defense, the statute does not literally
compel speech, since the defense could apply if
the defendant could show that his sexual partner knew of his HIV+ status from any source,
not just from the defendant having revealed it
directly. The court saw through this sophistical
argument, however, with Justice Ternus concluding that actually the statute does in reality
compel HIV+ persons to speak and, rejecting
another state argument, that it is a content
based regulation of speech. Thus, strict judicial
scrutiny is required.
But this did not save the day for Musser,
since the court found that the statute survives
strict scrutiny. Noting the public health aim of
the statute and the seriousness of the AIDS epidemic, Ternus wrote, “We think section 709C.1
promotes a compelling state interest, and the
legislature narrowly tailored the statute to promote this compelling interest. The statute does
not absolutely prohibit an infected person from
having sexual relations with another. Moreover,
section 709C.1 does not compel public disclosure of an infected person’s HIV status; an infected person may privately inform a potential
sexual partner of his or her condition. We cannot conceive of a less restrictive way ini which
the state could accomplish its goal, and the defendant has not suggested such an alternative.
We hold, therefore, that section 709C.1 does
not unconstitutionally infringe the defendant’s
First Amendment free-speech rights.”
The court also rejected Musser’s argument
that the statute was void for vagueness, finding
that common knowledge and common sense, as
well as past constructions of the statute, would
clearly have put a person on notice of the conduct prohibited. Although the statute uses generalities like “sexual contact” rather than
specifying anal, oral, or vaginal sex as the conduct in question, it does require that the conduct be of a type that could spread HIV through
sex, and this, in the court’s view, ruled out
Musser’s hypotheticals of “kissing” or of sweat
dripping on somebody during a vigorous game
of basketball.
Rejecting a right of privacy argument premised heavily on Lawrence v. Texas, the court emphasized that Lawrence protects consensual
sex, and that Justice Kennedy stated therein
that the Lawrence case did not involve “persons
who might be injured or coerced.” In this case,
however, the statute involves situations lacking
full and informed consent because it applies
only to situations where the sexual partner is ignorant of the defendant’s HIV+ status.
“Surely,” Justice Ternus asserted, “it cannot be
disputed that one considering having sexual intercourse with another would want to know
whether the other person is infected with HIV
prior to engaging in such intimate contact. Consent in the absence of such knowledge is certainly not a full and knowing consent as was
presented in Lawrence. It is also significant that
the sexual partner of an infected person is at serious risk of injury and even death from the prohibited sexual contact.”
Musser argued that the 25 year minimum indeterminate sentence imposed in the case violated the 8th Amendment prohibition on cruel
or unusual punishment, emphasizing that in his
case it appears that the victim did not contract
HIV. The court treated this last point as irrelevant, as the focus is on the defendant’s conduct
and its potential harmfulness, not on the actual
facts of the case, when considering his degree
of culpability. “We look at the harm the legislative provision was designed to prevent,” wrote
Ternus, who also rejected Musser’s argument
that the sentence is disproportionate because
the statute does not require the prosecution to
prove that the defendant intended to infect the
victim. “While section 709C.1 may not expressly require an intent to injure,” Ternus responded, “it does require the functional
equivalent: that the defendant intentionally expose another person to the defendant’s infected
182
bodily fluid in such a way that the virus could
be transmitted.”
The court rejected Musser’s argument that
evidentiary rules were violated with the admission of hospital laboratory reports documenting
his HIV status, or that he receive ineffective assistance of counsel due to his defense attorney’s failure to raise at trial some of these constitutional and evidentiary claims that the court
was rejecting.
The court’s conclusions, while explicable,
rest of course on a paradigm different from that
argued by critics of the use of criminal law as a
public health tool in the context of the epidemic. Because a significant portion of the
population has not been tested for HIV in the
U.S., and in particular heterosexuals are likely
not to know their HIV status, they argue, criminal statutes such as the one challenged in this
case are relatively useless as a public health
tool and serve largely to express societal disapproval for HIV+ people who continue to have
sex. A sounder public health approach would
be to encourage all persons to act defensively in
matters of sex, presume the HIV+ status of potential sexual partners, and either use barrier
contraception or request information before
having sex. Relying on these sorts of criminal
statutes is futile because it contributes to a false
confidence among people especially those from
communities who do not consider HIV to be
their problem that they are safe in having unprotected sex unless their partner tells them
otherwise. Which is not to say that Musser, who
did not contest the assertion that he had unprotected intercourse with several people, knowing he was HIV+ and not disclosing that fact,
did not engage in contemptible behavior worthy
of sanction. The court’s conclusion that the
statute is constitutional seems correct, but that
does not determine whether the statute constitutes sound public health policy or an appropriate use of criminal law. A.S.L.
Iowa Supreme Court Upholds 25 Year Sentence
for Oral Sex Without HIV Disclosure
On the same date that the Iowa Supreme Court
rejected a raft of constitutional challenges to
the state’s criminal HIV transmission law, it affirmed a conviction under the law in another
pending appeal where the main question was
whether oral sex came within the class of conduct covered by the law. Supporting jurors using “common knowledge” about HIV transmission methods to supply an important element of
the case, the court unanimously upheld a 25
year sentence for Jimmy Dean Stevens, who
was convicted for engaging in oral sex with a 15
year old boy. The decision in State of Iowa v.
Stevens, 719 N.W.2d 547 (Iowa, Aug. 4, 2006),
will actually result in a 35 year sentence for
Stevens, because he also received a ten year
September 2006
sentence for sexual assault, which he did not
appeal.
Justice Jerry Larson wrote that Stevens, 33,
met 15–year-old J.B. in an internet chatroom
for gay men. Stevens claimed that he did not
know J.B. was only 15. After chatting on-line,
the two men met at J.B.’s house, with his mother
present. She apparently thought Stevens was
somebody who was going to advise J.B. about
getting into college. Stevens and J.B. went out
together to get some fast-food, and on the way
they parked and had mutual oral sex, during
which Stevens ejaculated in J.B.’s mouth. J.B.
later testified that he received assurances from
Stevens that he was “clean” (that is, uninfected), which Stevens knew were false, as he
had been diagnosed HIV+ long before.
After Stevens dropped J.B. back home, J.B.’s
mother made a comment that Stevens “looked
like he was a good candidate for AIDS.” J.B.,
alarmed, “made himself vomit” and then called
Stevens, again asking about his health, and Stevens against said he was “clean.” But some
time later J.B. learned that Stevens was, in fact,
HIV+. J.B. contacted the police. He has repeatedly tested negative.
Stevens was charged with sexual abuse and
criminal transmission of HIV. The Iowa criminal HIV transmission statute provides that
somebody can be convicted of criminal transmission even if they did not actually transmit
HIV, so long as they engaged in conduct that
could theoretically transmit the virus. The
crime is a serious felony carrying a substantial
sentence. The law is premised on the idea that it
is the act of knowingly engaging in conduct that
could transmit the virus that is deserving of severe criminal punishment, regardless of
whether actual transmission takes place.
Stevens argued that the performance of unprotected oral sex was not a violation of the statute. The statute provides that somebody commits the crime when, knowing he is HIV+, he
engages in “intimate contact” with another person, defined as “the intentional exposure of the
body of one person to a bodily fluid of another
person in a manner that could result in the
transmission of” HIV. The prosecutor did not
provide any expert testimony on the issue of
HIV transmission through oral sex. Stevens
claimed this was a fatal flaw in his conviction,
arguing that he did not, in fact, engage in conduct that merited criminal punishment on that
account. (By not appealing the sexual abuse
conviction, he was conceding that he had engaged in criminal conduct in having oral sex
with a 15 year old boy, which he would have to
concede based on clear statutory language,
since he did not deny having had sex with the
boy.)
Justice Larson pointed out that Iowa courts,
as well as courts of other states, have accepted
the proposition that HIV is transmitted in semen and can be spread by oral sex, and that this
Lesbian/Gay Law Notes
point is now so well established as a matter of
law that a court can take judicial notice of it as a
matter of common knowledge, so no expert testimony on the point need be provided to inform
the jury.
The jury was instructed that if it found based
on the evidence that Stevens knew he was infected, did not disclose this fact to J.B., and engaged in intimate contact with the boy, he
should be found guilty. The instruction presumed that oral sex qualified as “intimate contact” without requiring specific proof that oral
sex can transmit HIV.
Stevens had argued that the principal case
the prosecution relied upon for holding that it
was common knowledge that oral sex transmitted HIV was distinguishable because it involved vaginal intercourse, but Justice Larson
noted that the phrase used by the court in that
case was “sexual intercourse” and that a dictionary definition of “sexual intercourse” included “intercourse involving genital contact
between individuals other than penetration of
the vagina by the penis,70 and thus was not
limited to vaginal intercourse and could be held
to cover oral sex as well.
The court held that the prosecution’s failure
to present expert testimony on the subject thus
did not fail to meet its burden to prove Stevens’
guilt. Nowhere in the opinion is there any reflection of the controversy over the degree of
risk presented by oral sex, or any recognition
that experts on HIV transmission generally
view oral sex as presenting minimal risk by
comparison to anal or vaginal intercourse as a
mechanism of HIV transmission. For the Iowa
Supreme Court, it was sufficient that the legislature apparently believed that unprotected
oral sex was of equal seriousness for purposes
of criminal culpability with other forms of
fluid-exchange sex.
While 25 years in prison for an isolated act of
oral sex that did not transmit HIV seems extremely harsh, Stevens’ active concealment of
his HIV status when engaging in unprotected
sex with an underage boy seems worthy of some
level of criminal culpability, since it gave his
partner no opportunity to consider whether to
take the risk in such circumstances. Can one
really assume that a 15–year-old is sexually
aware enough to presume that any potential
partner for oral sex might be infected, or mature
enough to be able to decline the exciting prospect of oral sex with an older man to whom he
was attracted? A.S.L.
N.J. Appellate Division Extends Potential HIV
Liability of Health Care Providers
The New Jersey Appellate Division revived a
lawsuit by a former patient’s girlfriend against a
hospital and several doctors based on a claim
that she was infected with HIV because they
neglected to tell her boyfriend that he was in-
Lesbian/Gay Law Notes
fected. The August 10 ruling in C.W. v. The Cooper Health Care Systems, 2006 WL 2286377, in
any opinion by Judge Jose Fuentes, followed the
lead of a 1995 California appeals court case,
Reisner v. Regents, 31 Cal. App. 4th 1195 (Cal.
App. 1995), in finding that the defendants’ failure to inform the patient about his test result
violated a duty to the patient’s future sex partners.
C.W., then 29 years old, was admitted to Cooper Hospital in August 1994 suffering from
“confusion, changes in mental status, and progressive lethargy.” The doctors were unsure of
what was causing his problems, but one resident suggested doing an HIV test, which was
approved by C.W.’s attending physician. C.W.’s
mother gave consent for the test, since his mental condition at the time made him unable to
give consent. The blood sample was sent out to
a private lab, since the hospital was not then doing HIV tests.
The next day, C.W. awakened feeling better
enough to be moved to a less intensive ward
with a different attending physician, and as his
condition continued to improve he was discharged a few days later. The private lab had not
yet sent back the HIV test results, and the discharge notes in hospital records did not indicate that an HIV test had been ordered or what
the results were, even though there was a consent form on file.
The positive test results were received by the
hospital’s pathology department several days
after C.W. was discharged. There is no record
that they were communicated to either of the
doctors who had been attending physicians for
C.W. or to his personal physicians, and nobody
attempted to contact him to tell him that he had
tested HIV-positive. There is also no record that
the hospital reported the positive test result to
the state, although HIV is a reportable condition in New Jersey.
A few months later, C.W. met and became romantically involved with E.Y., she became
pregnant, and their daughter J.W. was born in
July 1995. C.W. and E.Y. continued to live together until December 1999. In July 2000,
C.W. went to his doctor complaining of various
new symptoms, was referred to a specialist who
suspected AIDS, and was tested. He came up
positive and then E.Y. was tested and also came
out positive. Luckily, their daughter tested
negative. E.Y. testified in a deposition that sexual contact with C.W. was her only risk factor.
C.W., E.Y., and J.W. all sued the attending
physicians, C.W.’s personal physician, the doctor in charge of the hospital’s pathology department, and the hospital, claiming injuries due to
the defendants’ negligence. C.W. claimed that
had he been informed of his HIV status, he
could have sought treatment and might not
have developed full-blown AIDS. E.Y. alleged
that had C.W. been properly notified, he could
have warned her and she could have avoided
September 2006
being infected. J.Y.’s theory of recovery was not
so clearly developed, but it appeared she was
claiming that the failure to notify C.W. had
heightened her risk of becoming infected with
HIV, even though she was not infected.
The trial court, finding no duty to E.Y. and
J.W. had been violated, granted a motion by the
defendants to dismiss their claims, and they appealed. The Appellate Division’s decision was
concerned with whether E.Y. and J.W. had viable negligence claims, which would require
that the defendants had violated some legal
duty to them, causing them tangible injury.
The trial judge had ruled that no duty to E.Y.
or J.W. was violated, particularly noting that
New Jersey’s HIV confidentiality law would
have restricted the defendants from revealing
C.W.’s HIV status to anybody else. The trial
judge also found that the hospital and doctors
could not have any duty to E.Y, who C.W. had
not even met at the time in question and whose
identity was never known to the defendants,
and of course J.W. did not even exist at the relevant time, since she was born a year later.
Judge Fuentes found, by contrast, that a
health care provider who authorizes HIV testing of a patient has a duty to inform the patient
of the result, especially if it is positive, for two
reasons. First, the patient who learns he is
HIV-positive can then seek treatment, and
could sustain harm if treatment is delayed. Second, and even more important from the public
policy point of view because of its potential impact on public health, a person who does not
know he is HIV-positive may spread the virus to
others unwittingly. Fuentes wrote that this duty
persists even after the patient is discharged
from the hospital.
The first reason supports a duty to the patient, the second supports a duty to those with
whom it is foreseeable to the hospital and its
doctors the patient might come in contact in the
future. “It is entirely foreseeable that C.W., a
twenty-nine-year-old individual, was, or would
likely be sexually active,” wrote Judge Fuentes.
“Indeed, a central part of Cooper Hospital’s responsibility involved advising C.W. on the
steps he needed to take to avoid transmitting
the virus to another person. Under these circumstances, E.Y., as C.W.’s sexual partner, falls
within the scope of foreseeable individuals who
would be harmed by Cooper Hospital’s failure
to inform C.W. of his HIV positive status.”
The court rejected the defendants’ argument
that New Jersey’s HIV confidentiality law
would have barred them from informing E.Y. of
C.W.’s status, even if they had known of her existence. “This argument misses the point,”
wrote Fuentes. “The question is not whether defendants have a duty to notify E.Y. directly of
C.W.’s HIV test results. The duty of care to a
third party such as E.Y. requires the health care
provider to take all reasonable measures to notify the patient of the results of his HIV test, and
183
thereafter counsel the infected patient on how
to avoid transmission of the virus. Once this is
done, it is up to the individual to act responsibly
in his own conduct. Thus, the harm to E.Y. flows
from C.W.’s ignorance of his own health status,
not from Cooper Hospital’s failure to notify E.Y.
of C.W.’s medical condition.”
The court did uphold throwing out claims
against the head of the pathology department,
finding that the plaintiff’s had failed to show
that he had a specific duty to inform C.W. of his
test result. The duty lies on the attending physicians who had authorized the test and had a direct physician-patient relationship with C.W.,
the court found, and the expert testimony that
the plaintiffs offered about the duties of a pathology department director was not grounded
in any specific professional rules or legal requirements.
On the other hand, the court found that the
claims by C.W.’s daughter, J.W., were rightly rejected. The court found no basis for her to argue
that the defendants’ negligence had exposed
her to an increased risk of harm, since she did
not suffer from the condition. Although the
court did not come out and say it directly, it appeared that the judges did not consider J.W. to
have sustained any tangible injury, a startling
lack of imagination. Would anybody seriously
contend that a dependent child whose parent
was infected with HIV has not sustained an injury, albeit not a physical one? A.S.L.
“Extraordinary Circumstances” Excused Late Filing
of HIV Liability Suit by Recent High School Grad
Against School District
Upholding a ruling by Essex County Superior
Court Judge Verna G. Leath, a unanimous New
Jersey Appellate Division panel ruled in R.L. v.
State-Operated School District of City of Newark, 2006 WL 2334951 (August 14, 2006), that
“extraordinary circumstances” justified allowing a recent high school graduate who claims to
have been sexually infected with HIV by his
band director to sue the Newark school district,
even though he missed a 90–day deadline to
file suit after discovering his injury.
The plaintiff, identified in Judge Jane Grall’s
opinion as R.L. but identified in press reports
as Robert Little, alleged that he first encountered this teacher in the fall of 2000 when he
was a 14–year-old freshman and a member of
the band. Little says that he complained at that
time to his aunt, with whom he lived, about the
band director fondling him, and she had him
transferred to a high school in another city, but
he moved back to Newark to live with his sister
before his sophomore year and ended up back
at the same high school, where he was placed in
a class taught by the same teacher.
Little claims that he asked his guidance
counselor to transfer him, without giving a reason for the request at first, but then opening up
184
about his freshman experiences when a transfer
was not quickly forthcoming, but the school
took no action. Little does not claim that he was
sexually abused by the teacher that year.
During his junior year, however, Little, then
16 and still a member of the band, fell under the
band director’s sway in a big way. The band director allegedly flirted with him, invited him to
private parties where there was alcohol and
marijuana, and they began a consensual sexual
relationship, which continued until shortly before Little’s graduation from high school, by
which time he had just turned 18.
Little took an HIV test the following May, acting on a friend’s suggestion, and tested positive.
Believing he had been infected by the band director, he promptly notified the school and law
enforcement authorities, but apparently fell
into quite a funk, crying continuously and unable to function during the ensuing time. He
had not wanted to go public about being HIV+,
but after newspaper reports appeared about his
charges, he retained an attorney early in the fa
of 2005, and a lawsuit quickly followed.
Under the New Jersey Tort Claims Act, negligence claims against public authorities have to
be filed within 90 days of the injury, but by the
time Little had hired his lawyer, more than 90
days had passed since he had tested positive,
and more than a year since he last had sex with
the band director, which would be when he was
actually injured. Section 59:8–9 gives the Superior Court discretion to allow a late filing under “extraordinary circumstances,” so long as a
motion to that effect is filed within a year, and
Little’s lawyer filed such a motion with Judge
Leath, seeking permission to file suit on Little’s
behalf.
Two questions were directly implicated:
when did Little’s legal claim arise, and were the
circumstances sufficiently extraordinary to justify a late filing? At a later point, the court will
have to determine another argument by the
school district — that it cannot be held liable
for the private sexual activities of a teacher but
at this point the only question concerned the
timeliness of the lawsuit.
The school district argued that if Little was
infected by the teacher, his claim arose at the
time he was infected, so the motion to allow the
lawsuit was itself untimely, since the statute requires that it be made within a year of the injury.
This argument did not get very far, because New
Jersey, like many other states, follows the discovery rule under which a person’s time for filing suit begins to run when they could have discovered their injury with reasonable diligence.
Also, the time for suing on a legal claim that
arises when somebody is a minor begins to run
when they reach age 18. Taken together, these
principles suggested that the time for Little to
file suit arose when he received the results of
his HIV test in May 2005.
September 2006
The trial judge so ruled, finding that the
school district was not prejudiced by the late
filing in any event, because Little notified them
promptly after learning that he was HIV positive, so they were on notice at that point that
they might be sued. The Appellate Division
agreed.
Judge Veath also found extraordinary circumstances in this case, and the Appellate Division concurred. “R.L. was two months short
of his nineteenth birthday when he learned that
he had been injured as a consequence of his
teacher’s conduct,” wrote Judge Grall. “The
unexpected news was that he had a condition
that not only can lead to death but also carries a
stigma. That stigma has been recognized by our
courts and the federal courts. Although R.L.
promptly notified the authorities out of concern
that other students would be injured in the
same manner, he spent his time crying, preoccupied with thoughts of death, and was hesitant
about exposing his HIV status. After his name
appeared in the newspaper in connection with
his oral complaint and HIV status, he promptly
sought legal advice.”
The court found that this cumulation of circumstances added up to the necessary extraordinary circumstances to excuse the late filing,
finding “we cannot conclude that the Judge
abused her discretion” in granting the motion.
“We are convinced that the combined reasons
for delay distinguish this case from those in
which we have deemed the circumstances inadequate.”
One might question why neither the court nor
newspaper reports have given the band teacher’s name, especially as Little’s name surfaced
in the press. But at this point Little’s allegations
are not proven, so the media are protecting the
band director’s privacy. The New York Times
(Aug. 15) reported that calls to his last known
phone number were not returned.
As the case proceeds, the school district will
likely argue that it cannot be held vicariously liable because the band director’s conduct was
not work-related or authorized, and indeed violated the rules governing his employment.
However, Little’s allegations suggest that the
district may be vulnerable to liability on an alternative theory of negligent supervision, since
he alerted school authorities during his sophomore year that the teacher had behaved in a
sexually inappropriate way towards him, but
the school took no action to protect him. Under
the circumstances, it would not be surprising if
the school district decided to settle the case.
A.S.L.
AIDS Litigation Notes
Federal — 7th Circuit — A panel of the 7th Circuit ruled July 26 that proposed class plaintiff
Gary Schor had failed to allege a valid antitrust
cause of action against Abbott Laboratories, the
Lesbian/Gay Law Notes
patent-holder for protease inhibitor Novir, for
manipulation in pricing calculated to exclude
similar products from the market. Schor v. Abbott Laboratories, 2006 WL 2062117. The theory propounded by Schor is too complex for description here, but the opinion is noted for the
convenience of those who might be interested
in exploring the issue of competition in the HIV
meds market.
Federal — D.C. Circuit — The D.C. Circuit’s
decision in Deramus v. Donovan, Leisure, Newton & Irvine, 2006 WL 2067733 (July 27,
2006), a legal malpractice case, stems from the
defendant law firm’s representation of the
plaintiff in litigation against an insurance company for having failed to disclose that her husband had tested positive for HIV during his
supplemental life insurance application process. Plaintiff apparently sued Donovan for its
strategic decisions during her failed federal
lawsuit against the insurer. In this and prior decisions in the case Donovan won a series of motions resulting in disposition of the lawsuit in its
favor.
Federal — California — U.S. District Judge
Jeremy Fogel ruled that a California prison inmate had failed to state a claim of deliberate indifference under the 8th Amendment with allegations that a corrections officers had given him
an electric razor to use that belonged to an
HIV+ inmate. Brown v. Porter, 2006 WL
2092032 (N.D. Cal., July 26, 2006). “Plaintiff
requested an electric razor because he suffers
from a skin sensitivity. K. Porter, a “trainee”
and “new on the job,” gave him an electric razor to use. After using the razor, plaintiff saw
that it had the name of another inmate written
on it and the letters “HIV” carved on the top.
Plaintiff told K. Porter to get her supervisor,
Corporal D. Kim, from whom he requested immediate medical attention, which was denied.”
There is no allegation that Brown was infected
as a result of this incident, his only claim being
for emotional distress damages. Judge Fogel
found that a claim for emotional distress damages is not viable under 42 U.S.C. sec. 1983, as
it has repeatedly been found that prison officials are not liable for causing emotional distress to inmates as a result of their negligence.
Fogel pointed out that Porter was new on the job
and had been, at most, negligent, not deliberately indifferent to Brown’s health.
Federal — California — District Judge
Phyllis J. Hamilton’s June 9 opinion in Farhat v.
Hartford Life and Accident Insurance Co., 2006
WL 1626649 (N.D. Calif.), belatedly made
available on Westlaw in late July, documents
the struggles of a man living with HIV and suffering severe physical symptoms to gain the
long-term disability benefits due to him, ultimately winning an order awarding benefits
upon the court’s finding that Hartford Insurance acted in an arbitrary manner when it rejected all the medical evidence Farhat pre-
Lesbian/Gay Law Notes
sented and denied benefits without obtaining or
citing to any contrary medical authority. Indeed, although Judge Hamilton was too polite
to say so, this opinion documents once again, if
such documentation be needed at this stage of
the game, the lengths that insurance companies
will go to even ignoring the requirements of the
plan documents it has drafted to avoid providing long-term disability benefits to people living with AIDS regardless of the actual merit of
their case. Dramatic proof of this assertion can
be found in the very arguments Hartford made
to the court, asserting, in essence, that it didn’t
matter whether Farhat was actually disabled;
that the insurer could deny benefits so long as
the evidence before it on a particular, arbitrary
date, did not meet its requirements for documenting disability. That Hartford persisted in
its position in light of the overwhelming medical evidence, compounded by Farhat’s subsequent success in winning long-term disability
benefits from the Social Security Administration (a notably difficult accomplishment under
the present Administration), speaks to the lack
of integrity of Hartford’s review process and
decision-making on HIV-related claims.
Federal — Connecticut — A person who represents himself, especially in the procedurally
complex realm of federal prisoner litigation, is
unlikely to prevail, or so seems the message of
U.S. District Judge Peter C. Dorsey’s opinion in
Calderon v. Lantz, 2006 WL 2092080 (D.
Conn., July 24, 2006). Prisoner Christopher
Santos, suing together with his mother Marty
Calderon, seeks to hold prison officials liable
for an incident in which he was bitten by an
HIV+ inmate, then not provided with medical
treatment for several days, only to suffer adverse side-effects from the treatment. Regardless whether this claim would have gone anywhere on the merits, Santos’s attempt to sue ran
aground on numerous procedural errors, including naming prison officials who had nothing directly to do with the incidents recounted
in his complaint.
Federal — Oregon — In Zasada v. Gap, Inc.,
2006 WL 2382514 (D. Or. Aug. 10, 2006), the
court granted a defense motion to dismiss an
HIV discrimination claim under state law
September 2006
against co-workers of the plaintiff, finding that
under the relevant employment discrimination
statute only the employer could be a defendant
in a wrongful discharge case. The court also
found that Anthony S. Zasada’s HIV-based discrimination claim was neither adequately pled
nor timely, but granted Zasada until Aug. 25 to
file an amended complaint to cure this basic
defect in his case. It is not known as we go to
press whether he did so.
New York — In a singularly uninformative
brief memorandum opinion, a panel of the N.Y.
Appellate Division, 2nd Department, issued an
order prohibiting Queens law enforcement officials from requiring a criminal defendant to
submit to an HIV test. McClain v. Grosso, 2006
WL 2065144 (July 25, 2006). After noting that
Pub. Health L. Sec. 2781 provides the conditions for obtaining an HIV test, the court states:
“Under the circumstances of this case, the respondents lacked specific statutory authority to
compel the petitioner to submit to an HIVrelated test.” The court never explains the circumstances of the case.
Ohio — The Ohio Court of Appeals, 6th District, upheld a conviction of attempted felonious assault and a term of four years in prison for
Madison A. Branch, found to have spit in the
eye of a police officer intending to transmit HIV
to him. State of Ohio v. Branch, 2006 WL
2045911, 2006–Ohio–3793 (July 21, 2006).
Branch went into a gas station and attempted to
take a cup of coffee without paying for it. The
employees locked the door and called the police, who arrived to arrest Branch. They put him
in the police car to take him to the Lucas County
jail. “While removing him from the vehicle,”
wrote Justice Pietrykowski for the court, “appellant, who is HIV positive, spit in Officer
Mawer’s eye. Officer Mawer testified that, when
he cleaned out his eye, he believed there was
blood in the saliva. At the time of the incident,
Officer Mawer knew that appellant was HIV
positive; Mawer received emergency treatment
for his eye and consulted a specialist, who recommended he take medication for 28 days in
efforts to reduce his risk of getting HIV.” Officer
Mawer was not infected, but Branch was prosecuted for attempted felonious assault. Expert
185
testimony at trial showed there was minimal
(but not zero) risk of transmitting HIV in this
manner. Over objection, the trial judge allowed
testimony about a prior incident in which
Branch spat on a different police officer while
informing him that he was HIV-positive, and
stating “ I should have spit in your mouth.” The
court of appeals rejected objections to the guilty
verdict, finding that the issue was the state of
mind and intent of the defendant, not whether
he could actually transmit HIV in this manner.
The evidence of the past incident was held admissible as relevant to the state of knowledge of
the defendant and his beliefs about how HIV
could be transmitted. A.S.L.
International AIDS Notes
International AIDS Conference — The 16th International AIDS Conference held in Toronto
during August produced much news, including
a warning from UNAIDS Executive Director
Peter Piot that the introduction of effective
anti-retroviral therapies in some countries does
not mean that the fight against AIDS is over.
“We are entering a new phase in the global response,” he said. “We have got some initial
successes, or rather results, but we are facing a
move from crisis management to a long-term
sustainable response. One and a half million
people are on antiretroviral therapy in the developing world. And hopefully there will be far
more. Twenty, 30 or 40 years from now, we still
want them to be alive. Who’s going to pay for
that? By any measure, we still have a catastrophe, a crisis. But if now these initial results lead
to complacency, that would be a disaster, and
we know that keeping anything on the political
agenda is difficult.” Piot called for three major
objectives for AIDS advocacy: making the next
generation of AIDS drugs affordable enough so
that poor patients who encounter viral resistance can be treated; providing sustainable
funding so that poor persons living with AIDS
can continue their treatment; and addressing
fundamental problems of homophobia, discrimination against women, and disease
stigma, all of which help fuel the epidemic.
Agence France Presse, Aug. 13. A.S.L.
PUBLICATIONS NOTED & ANNOUNCEMENTS
LESBIAN & GAY & RELATED LEGAL ISSUES:
Abreyava, Harley, Doe v. Bell (case comment),
50 N.Y.S.L. L. Rev. 993 (2006–2006) (re gender identity disorder as a disability).
Amann, Diane Marie, International Law and
Rehnquist-Era Reversals, 94 Geo. L. J. 1319
(June 2006).
Askew, James, The Slippery Slope: The Vitality of Reynolds v. U.S. After Romer and Lawrence, 12 Cardozo J. L. & Gender 627 (2006).
Atkins, Kim, Re Alex: Narrative Identity and
the Case of Gender Dysphoria, 14 Griffith L.
Rev. 1 (2005).
Ball, Carlos A., The Backlash Thesis and
Same-Sex Marriage: Learning from Brown v.
Board of Education and Its Aftermath, 14 Wm.
& Mary Bill Rts. J. 1493 (April 2006).
Baron, Paula, The Web of Desire and the Narcissistic Trap: A Psychoanalytic Reading of Re
Alex, 14 Griffith L. Rev. 17 (2005).
Bedford, Kate, Loving to Straighten Out Development: Sexuality and “Ethnodevelopment”
in The World Bank’s Ecuadorian Lending, 13
Feminist Legal Studies 295 (2005).
Benvenuto, Osmar J., Reevaluating the Debate Surrounding the Supreme Court’s Use of
Foreign Precedent, 74 Fordham L. Rev. 2695
(April 2006).
Bergin, Kathleen A., Authenticating American Democracy, 26 Pace L. Rev. 397 (Spring
2006).
Berys, Flavia, Interpreting a Rent-a-Womb
Contract: How California Courts Should Proceed When Gestational Surrogacy Arrange-
186
ments Go Sour, 42 Calif. Western L. Rev. 321
(Spring 2006).
Bilionis, Louis D., Criminal Justice After the
Conservative Reformation, 94 Geo. L. J. 1347
(June 2006).
Brown, Mark R., Closing the Crusade: A Brief
Response to Professor Woodhouse, 34 Cap. U. L.
Rev. 331 (Winter 2005) (see Woodhouse, below).
Brundage, James A., Book Review, Sodomy,
Masculinity and Law in Medieval Literature:
France and England, 1050–1230 — William
E. Burgwinkle, 24 L. & Hist. Rev. 456 (Summer
2006).
Buethe, Heather, Second-Parent Adoption
and the Equitable Parent Doctrine: The Future
of Custody and Visitation Rights for Same-Sex
Partners in Missouri, 20 Wash. U. J. L. & Pol’y
283 (2006).
Caplan, Aaron H., Stretching the Equal Access Act Beyond Equal Access, 27 Seattle U. L.
Rev. 273 (Fall 2003).
Codd, Helen, Regulating Reproduction:
Prisoners’ Families, Artificial Insemination and
Human Rights, 2006 European Hum. Rts. L.
Rev. No. 1, 39.
Cohen, Michael J., Have You No Sense of Decency? An Examination of the Effect of Traditional Values and Family-Oriented Organizations on Twenty-First Century Broadcast
Indecency Standards, 30 Seton Hall Legis. J.
113 (2005).
Cooper, Donna, The Proprietary Consequences of Loving and Living Together, 23 U.
Tasmania L. Rev. 45 (2004).
Dempsey, Brian, “By the Law of This and
Every Other Well Governed Realm”; Investigating Accusations of Sodomy in Nineteenth Century Scotland, 2006 Juridical Rev. 103–130.
Elimelekh, Shelly, The Constitutional Validity of Circuit Court Opinions Limiting the
American Right to Sexual Privacy, 24 Cardozo
Arts & Ent. L. J. 261 (2006).
Ensign, Drew C., The Impact of Liberty on
Stare Decisis: The Rehnquist Court From Casey
to Lawrence, 81 N.Y.U. L. Rev. 1137 (June
2006).
Fellow, Laura N., Congressional Striptease:
How the Failures of the 108th Congress’s
Jurisdiction-Stripping Bills Were Used for Political Success, 14 Wm. & Mary Bill Rts. J. 1121
(February 2006).
Fongard, E., Le mariage homosexuel a
l’epreuve du droit international prive. A propos
de la reponse ministerielle du 26 juillet 2005,
133 Journal du Droit International 477 (AvrilMai-Juin 2006).
Friedman, Lawrence, Ordinary and Enhanced Rational Basis Review in the Massachusetts Supreme Judicial Court: A Preliminary Investigation, 69 Albany L. Rev. (State
Constitutional Commentary) 415 (2006).
Goodwin, Jessica, Seymour v. Holcomb, 22
Touro L. Rev. 83 (2006) (N.Y. State Constitu-
September 2006
tional Decisions: 2006 Compilation — Due
Process) (Same-Sex Marriage Case).
Gordon, Mitchell, Adjusting the Rear-View
Mirror: Rethinking the Use of History in Supreme Court Jurisprudence, 89 Marquette L.
Rev. 475 (Spring 2006).
Greene, Jamal, Beyond Lawrence: Metaprivacy and Punishment, 115 Yale L.J. 1862 (June
2006).
Gurian, Craig, A Return to Eyes on the Prize:
Litigating Under the Restored New York City
Human Rights Law, 33 Fordham Urban L.J.
255 (Jan. 2006).
Hanson, Mark J., Moving Forward Together:
The LGBT Community and the Family Mediation Field, 6 Pepp. Disp. Resol. L.J. 295 (2006).
Harris, Angela P., From Stonewall to the Suburbs?: Toward a Political Economy of Sexuality,
14 Wm. & Mary Bill Rts. J. 1539 (April 2006).
Harris, Christin, Langan v. St. Vincent’s Hospital of New York, 22 Touro L. Rev. 147 (2006)
(N.Y. State Constitutional Decisions: 2006
Compilation — Equal Protection) (Surviving
Partner Wrongful Death Case).
Herald, Marybeth, Transgender Theory: Reprogramming Our Automated Settings, 28
Thos. Jefferson L. Rev. 167 (Fall 2005).
Hsu, Josh, Looking Beyond the Boundaries:
Incorporating International Norms Into the Supreme Court’s Constitutional Jurisprudence, 36
N. M. L. Rev. 75 (Winter 2006).
Katyal, Sonia K., Sexuality and Sovereignty:
The Global Limits and Possibilities of Lawrence,
14 Wm. & Mary Bill Rts. J. 1429 (April 2006).
Knauer, Nancy J., The Recognition of SameSex Relationships: Comparative Institutional
Analysis, Contested Social Goals, and Strategic
Institutional Choice, 28 U. Haw. L. Rev. 23
(Winter 2005).
Kobylka, Joseph F., Tales from the Blackmun
Papers: A Fuller Appreciation of Harry Blackmun’s Judicial Legacy, 70 Mo. L. Rev. 1075
(Fall, 2005).
Korovilas, Dimitrios, Pornless Prisons: An
Unreasonable Restriction?, 39 U.C. Davis L.
Rev. 1911 (June 2006).
Kuhn, Michael J., Still, What’s So Compelling? The Supreme Court’s Continued Application of the Ginsberg Analysis and Its Effect on
the Attempted Regulation of Internet Pornography in Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004), 84 Neb. L. Rev. 1280
(2006).
Lawrence, Susan E., Substantive Due Process
and Parental Rights: From Meyer v. Nebraska to
Troxel v. Granville, 8 J. L. & Fam. Stud. 71
(2006).
Levinson, Tom, Confrontation, Fidelity,
Transformation: The “Fundamentalist” Judicial Persona of Justice Antonin Scalia, 26 Pace
L. Rev. 445 (Spring 2006).
Long, Leonard J., Not Quite Straightforward:
Heterosexual Enlistment in the Crusade for Ho-
Lesbian/Gay Law Notes
mosexual, Bisexual, and Transgendered Rights,
24 QLR 833 (2006) (book review).
Marcus, Nancy Catherine, The Freedom of
Intimate Association in the Twenty-First Century, 16 Geo. Mason U. Civ. Rts. L.J. 269
(Spring 2006).
Mayes, Thomas A., Separate Public High
Schools for Sexual Minority Students and the
Limits of the Brown Analogy, 35 J. L. & Educ.
339 (July 2006).
McCandless, Julie, Recognizing Family Diversity: The ‘Boundaries’ of Re G, 13 Feminist
Legal Studies 323 (2005).
McClendon, Janice Kay, A Small Step Forward in the Last Civil Rights Battle: Extending
Benefits Under Federally Regulated Employee
Benefit Plans to Same-Sex Couples, 36 N.M. L.
Rev. 99 (Winter 2006).
Meyer, David D., The Constitutionality of
“Best Interests” Parentage, 14 Wm. & Mary Bill
Rts. J. 857 (February 2006).
Miller, Jason, Professors Agree Extreme Associates Will Not Go to Supreme Court, 8 Lawyers
J. (No. 10) 5 (May 12, 2006).
Murchison, Brian C., Speech and the SelfGovernance Value, 14 Wm. & Mary Bill Rts. J.
1251 (April 2006).
Newman, Mary, Barnes v. City of Cincinnati:
Command Presence, Gender Bias, and Problems of Police Aggression, 29:2 Harv. J. L &
Gender 485 (Summer 2006).
Reardon, Roy L., and Mary Elizabeth
McGarry, New York Court of Appeals Roundup:
Court (Again) Looks at Same-Sex Marriage,
Depraved Indifference, NYLS, Aug. 10, 2006, p.
3.
Recent Cases, Equal Protection Sexual Orientation Kansas Supreme Court Invalidates
Unequal Punishments for Homosexual and Heterosexual Teenage Sex Offenders. State v. Limon, 122 P.3d 22 (Kan. 2005), 119 Harv. L.
Rev. 2276 (May 2006).
Rives, Ann L., You’re Not the Boss of Me: A
Call for Federal Lifestyle Discrimination Legislation, 74 George Wash. L. Rev. 553 (April
2006).
Roberts, Caprice L., Jurisdiction Stripping in
Three Acts: A Three String Serenade, 51 Vill. L.
Rev. 593 (2006).
Spease, Adam K., Looking the Other Way:
Porn, “Playhouse” Prisons, and the Culture of
Judicial Deference, 91 Iowa L. Rev. 1117
(March 2006).
Spitz, Laura, At the Intersection of North
American Free Trade and Same-Sex Marriage, 9
UCLA J. Int’l L. & Foreign Affairs 163
(Fall/Winter 2004).
Strasser, Mark, Lawrence, Mill, and SameSex Relationships: On Values, Valuing, and the
Constitution, 15 S. Cal. Interdisc. L.J. 285
(Spring 2006).
The Validity of Criminal Adultery Prohibitions After Lawrence v. Texas, 39 Suffolk Univ.
L. Rev. 837 (2006) (student note).
Lesbian/Gay Law Notes
Tulin, Edward L., Where Everything Old is
New Again Enduring Episodic Discrimination
Against Homosexual Persons, 84 Texas L. Rev.
1587 (May 2006).
Tushnet, Mark, When Is Knowing Less Better
than Knowing More? Unpacking the Controversy Over Supreme Court Reference to Non-U.S.
Law, 90 Minn. L. Rev. 1275 (May 2006).
Wan, Marco, From the Rack to the Press: Representation of the Oscar Wilde Trials in the
French Newspaper Le Temps, 18 L. & Literature
No. 1, 47 (Spring 2006).
Wilson, Dennis B., Electing Federal Judges
and Justices: Should the Supra-Legislators Be
Accountable to the Voters?, 39 Creighton L. Rev.
695 (April 2006).
Wood, Darlene S., In Defense of Transjudicialism, 44 Duq. L. Rev. 93 (Fall 2005).
Woodhouse, Barbara Bennett, Waiting for
Loving: The Child’s Fundamental Right to
Adoption, 34 Cap. U. L. Rev. 297 (2005) (and
see Brown, Response, above).
Zylan, Yvonne, Finding the Sex in Sexual
Harassment: How Title VII and Tort Schemes
Miss the Point of Same-Sex Hostile Environment
Harassment, 39 Univ. Mich. J. L. Reform 391
(Spring 2006).
September 2006
AIDS & RELATED LEGAL ISSUES:
Caruso, Jeanne, and Kevin Cope, The Lost Generation: How the Government and NonGovernmental Organizations Are Protecting the
Rights of Orphans in Uganda, 7 Hum. Rts. Rev.
98 (Jan-March 2006).
Gupta, Manju, Occupational Risk: The Outrageous Reaction to HIV Positive Public Safety
and Health Care Employees in the Workplace,
19 J. L. & Health 39 (2004–5).
Isasi, Rosario M., and Thu Minh Nguyen,
The Global Governance of Infectious Diseases:
The World Health Organization and The International Health Regulations, 43 Alberta L.
Rev. 497 (Oct. 2005).
Johnson, Krista, AIDS and the Politics of
Rights in South Africa: A Contested Terrain, 7
Hum Rts. Rev. 115 (Jan-March 2006).
Metz, Thaddeus, The Ethics of Routine HIV
Testing: A Respect-Based Analysis, 21 S. African J. Hum. Rts. 370 (2005).
Stewart, Kearsley A., Can a Human Rights
Framework Improve Biomedical and Social Scientific HIV/AIDS Research for African Women?,
7 Hum. Rts. Rev. 130 (Jan-March 2006).
187
Specially Noted
The International Lesbian and Gay Association
has published on its website a survey on international travel regulations affecting people living with HIV/AIDS. Compiled by Karl Lemmen
and Peter Wiessner of the German AIDS Federation and David Haerrry, at is titled Quick
Reference: Travel and Residence Regulations for
People with HIV and AIDS 2005. The survey
can be accessed at http://doc.ilga.org/ilga/publications/other_publications/hiv_aids_regulations.
EDITOR’S NOTE:
All points of view expressed in Lesbian/Gay
Law Notes are those of identified writers, and
are not official positions of the Lesbian & Gay
Law Association of Greater New York or the LeGaL Foundation, Inc. All comments in Publications Noted are attributable to the Editor. Correspondence pertinent to issues covered in
Lesbian/Gay Law Notes is welcome and will be
published subject to editing. Please address
correspondence to the Editor or send via email. ••• With this issue we resume our
monthly publication schedule after the midsummer hiatus.